that payment was made by a check drawn | ance of being married to her." In the pres by the present defendant. That check has ent case, at the time the parties formally been received in evidence and bears the in- celebrated their marriage, the divorce suit, dorsement of the solicitor of petitioner. Dur- which had been instituted to enable them to ing the period that the divorce suit was pend- become husband and wife, had been proseing, and for a considerable time prior thereto, cuted to its practical conclusion, and only defendant boarded at petitioner's home, and awaited the signature of the chancellor to the the divorce suit was obviously brought and final decree. Should it be here ascertained the money necessary for its prosecution sup- that petitioner's present testimony to the plied by defendant to enable the parties to effect that she then believed she was free to marry when the impediment which they were marry defendant is insufficiently corroborated mutually seeking to remove should have been to warrant an affirmative finding of that fact, removed. Petitioner is an illiterate woman, it is yet clear that a finding that she then who can neither read nor write. It thus ap- knew she was not free to marry defendant pears that, more than a month before peti- cannot be justified, and it is entirely certain tioner and defendant celebrated their mar- that both parties then desired to marry, and riage, adequate testimony to support a di- that their mutual desire to be husband and vorce had been concluded, and nothing had wife continued thereafter for a period of ten occurred to change the mutual purpose of the years, and that both parties, at the time of parties to remove the impediment to their their ceremonial marriage, necessarily knew marriage before marrying. They mutually that the divorce would soon be granted, desired to marry, and mutually realized the whether or not either of them then knew it necessity for the removal of the impediment had not, in fact, been granted. In such cirbefore they could lawfully marry, and, for cumstances, the presumption of continuous the accomplishment of their lawful purpose, meretricious purpose, which was, under the petitioner had supplied all the necessary facts, necessarily made the basis of the decitestimony, and defendant had supplied all the sion in Collins v. Voorhees, supra, finds but necessary money. Under these circumstanc- feeble, if any, support in either reason or aues, it becomes practically impossible to be- thority. The authorities applicable to this lieve that petitioner, without any possible aspect of the case are reviewed in 1 Bishop reason for change of purpose of plan, de- on Marriage, Divorce and Separation, §§ 960 termined to deceive defendant and celebrate to 976. The test which the learned author a marriage which she knew to be unlawful adopts, as sustained by the weight of authorand void, and to that end falsely stated to de-ity, is whether the parties desire marriage. fendant that she was then free to marry. In Collins v. Voorhees, supra, it was found From her viewpoint of illiteracy the case had that the husband did not desire marriage, been tried and finished, and she may well and could not have desired marriage at any have understood some general statement of time, because he knew that his divorce was her solicitor to the effect that there remained | fraudulent and void, and that his real desire nothing more for her to do as meaning that was to live in illicit relations with the woman she was then free to marry. It is not proba- with whom he cohabited; whereas, in the ble that her solicitor told her that her divorce present case the evidence renders it clear that had been granted, but it seems impossible to both parties at all times during the ten years escape the conviction that such was her be of their cohabitation desired marriage. At lief. section 970 the rule is stated in 1 Bishop (supra) as follows: "If the parties desire marriage, and do what they can to render their union matrimonial, yet one of them is under disability-as, where there is a prior marriage undissolved-their cohabitation, thus matrimonially meant, will in matter of law make them husband and wife from the moment when the disability is removed; and it is immaterial whether they know of its existence, or its removal, or not, nor is this a question of evidence. This doctrine is overlooked in some of the cases, but it is abundantly sustained by others, and the reasoning on which it rests is conclusive."

As already stated, the testimony of petitioner carried conviction of its honesty. Inaccuracies appear in her testimony, but not to a greater extent than may be reasonably expected in view of the period of time to which it referred, and I am fully convinced that she married defendant in good faith, believing that she was at the time free to lawfully marry him, and I am satisfied that the circumstances surrounding and precedent to the occurrence are adequate to supply the necessary corroboration of her testimony to that effect. I think it should be also observed that the present case differs in another important aspect from the case of Collins v. Voorhees, Where, at the time of a ceremonial marsupra. In the opinion filed in that case it is riage, an impediment to a lawful marriage, stated that it was found as a fact that the in fact, exists, the burden in a suit of this husband "knew that he had no legal power or nature may be appropriately said to rest right to contract this second marriage; that upon the party who was thus incapacitated he was aware that the divorce fraudulently to establish good faith by evidence adequateobtained by him was a nullity. What he did ly corroborated; but, when it appears, as consent to was to deceive the so-called second it appears in the present case, that the dis

[5, 6] In ascertaining the marriage of petioner and defendant sufficiently established by the evidence in this case, I have not overlooked the fact that, in civil suits for criminal conversation and in criminal prosecutions for polygamy, cohabitation and repute

concurrent efforts of the parties, for the sole purpose of enabling them to become husband and wife, and the removal of the disability was accomplished shortly after their ceremonial marriage, as the result and necessary consequence of their prior concurrent efforts, and, after such removal of the disability, are deemed insufficient to establish the fact the parties continue to cohabit and make themselves known to the world as husband and wife for a period of ten years, there flows from their conduct such an obvious purpose and desire to be husband and wife as to clearly overcome any inference of meretricious purpose on the part of either that may, in other circumstances, appropriately arise from the fact that, at the time of the ceremonial marriage, an impediment to marriage existed, with knowledge of which one or both of the parties were chargeable. The language of Chief Justice Hemphill touching presumptions flowing from conduct matrimonial, in Yates v. Houston, 3 Tex. 433, 450, referred to in 1 Bishop on M., D. & S. § 966, is, in this connection, well worthy of consideration. He says: "But admitting that their original intercourse was illicit with knowledge of both parties, it would be urging the presumption to an unreasonable extent to suppose that the unlawful character of the connection was unsusceptible of change, and that, when all legal disabilities had ceased to operate, they would voluntarily decline all the honors, advantages, and rights of matrimony, and prefer an association disgraceful to both parties, but peculiarly degrading to the female, and which inflicted upon their innocent offspring the stigma and penalties of illegitimacy. Let it be admitted that this woman had knowingly wandered from the paths of virtue, and that, in the weakness of human frailty, she had originally yielded to the arts and seductions of the deceased, yet the conclusion does not necessarily follow that the latter would be unwilling to repair, as far as possible, the wrongs he had inflicted, or that the former would of choice continue in a position so humiliating. * The judgment which would presume that erring humanity would not repent and reform is too harsh to have a place in any beneficial system of law, and we cannot yield our assent to any such doctrine."

I am convinced that, at the time of the ceremonial marriage between petitioner and defendant, both believed that no impediment existed to their lawful marriage. But if, perchance, petitioner may have known at that time that her divorce had not been granted, I am equally convinced that the evidence in this case sufficiently discloses that, subsequent to the removal of that disability, the parties cohabited with mutual purpose and intent to be husband and wife, and made themselves known to the world as such.

of marriage; and it may be also conceded that in some circumstances this may be the rule in a suit for divorce upon the ground of adultery. See 1 Bishop on M., D. & S. §§ 1026 to 1038. The reason for this rule appears to be that the second cohabitation carries with it presumptions similar to the former cohabitation and repute, and thereby weakens the force of the presumptions relied upon. But the present case is exceptional in its nature, and is fraught with circumstances which render any presumption of innocence in the second cohabitation wholly impossible. An affidavit filed by defendant to resist an order for alimony pendente lite sets forth that, at the time of the ceremonial marriage, he believed that the divorce of petitioner had been granted, and that he first learned to the contrary subsequent to the filing of the petition for divorce herein. By his own sworn statement it is thus disclosed that, at the time he had sexual intercourse with the corespondent in this suit, he believed that he was the lawful husband of petitioner. The evidence which has been introduced to establish defendant's adultery also discloses that, at the time of his adultery, he was still living with petitioner as her husband, and that his sexual intercourse with corespondent was of the most clandestine nature, and under circumstances which wholly negative the idea of innocence upon his part. suggestion of a presumption of either innocence or matrimonial intent upon the part of defendant in connection with his intercourse with corespondent, under the circumstances stated, may be appropriately characterized as a rank absurdity, and the weakening or neutralizing influence or effect of such a presumption, which in certain classes of cases has been recognized, is here wholly absent. It is impossible to predicate judicial action upon a presumption which is wholly repelled by the evidence.

Any

I will advise a decree of divorce nisi, and will ascertain the amount of alimony at the signing of the decree.

(82 N. J. Eq. 609) MADDOCK v. CONNOLLY et al. (Court of Errors and Appeals of New Jersey. March 16, 1914.)

(Syllabus by the Court.) MORTGAGES (§ 460*) - FORECLOSURE-BURDEN OF PROOF-FUTURE ADVANCES.

A party who seeks to foreclose a mortgage given for future advances must prove that such advances were in fact made, and that they re

main unpaid, in order to entitle him to the re- [of other circumstances appearing in the case, lief which he seeks.

But even if the complainant had carried the burden of proof upon this point, and shown the payment of advances on account of the mortgage, this fact alone would not have entitled him to the decree prayed for. He was bound to show, in addition, that the 3. advances constituted an outstanding obligation against the estate of Charles Heath, in order to entitle him to that relief. If he had produced the bond and mortgage from among the papers of the decedent, his possession of them would have been prima facie evidence that the mortgage did remain unpaid. But this he was unable to do. He showed that

the mortgage had passed into the hands of Mrs. Margaret Heath, as executrix of her husband's estate, upon the latter's death; that it apparently disappeared while in her hands; that it was not found after her death among the papers belonging to her husband's estate; and that diligent search has failed to bring it to light. But this proof, in view

WALKER, Ch. This was an action in the | nished for the erection and construction of Hudson county circuit court upon a mechan- a building,' and that, if sustainable at all, ic's lien claim by a materialman who was not the contractor.

[1] First. A building and land whereon it stands are liable to the contractor alone, when the contract and specifications accompanying the same are filed in the office of the clerk of the county. Mechanic's Lien Act (Comp. Stat. p. 3291) § 2. In this case the contract, but not the specifications, was filed. The plaintiff, therefore, had standing to bring her suit and acquire a special lien against the building and land. Nor was this right at all interfered with by the subsequent filing of an "addenda" to the contract which altered the unfiled specifications.

it must be 'for labor performed for the erection and construction of the building.' The statute is remedial in its nature and must by its terms receive a liberal construction. It is designed for the protection of a needy and most meritorious class of persons, and should receive such construction as will further the benign purposes which the Legislature had in view in its passage. Looking first to the language itself employed by the Legislature, we observe that the lien will lie for labor performed for the erection and construction of a building.' The labor need not necessarily enter into the erection or construction; it is sufficient if it be for the erection and construction. The construc tion contended for by defendant would oust the hod carrier from the protection of the act, for ordinarily he merely carries the material from the street, where it is mixed, to the scaffold where the masons are em

[2] Second. It was urged in defense of Mrs. Mial that she did not have such an estate in the lands as would support the judgment. A man named Hankins died seised of the property, and by his will devised the remainder to her after another's enjoyment of it for life. The estate of Mrs. Mial | ployed. It would also exclude the architect, was a legal estate. And the lien given by the act extends to legal estates and interests. Dalrymple v. Ramsey, 45 N. J. Eq. (18 Stew.) 494, 18 Atl. 105. By section 16 it is expressly provided that the claim shall contain the name of the owner of the land or of the estate therein on which the lien is sought. Mrs. Mial's estate was one in remainder, as remarked. Besides, she had an agreement with the owner of the life estate regarding the property, in which the latter appears to have conveyed that right to her, and under which she (Mrs. Mial) was in possession and exercising acts of ownership. This estate, if it did not merge into the remainder-a question not argued—was a legal estate, and subject to lien under the act. If it merged into the remainder, the defendant's estate was one of fee simple absolute, and, of course, subject to lien. If it did not merge, both it and the estate in remainder were subject to lien and sale.

[3] Third. The remaining question is as to whether a lien claim suit may be maintained in our state for the transportation and delivery of materials for the erection and construction of a building. In deciding this question in the trial court, Speer, J., in his opinion, among other things, said: "After a careful consideration of the text-books, the cases decided elsewhere than in New Jersey, and the arguments of counsel, I have come to the conclusion that a lien should be allowed for the charge of transportation of the materials to be used in the construction of the building. Section 1 of the statute, under which this claim falls, provides 'for the payment of any debt contracted and owing to any person for labor performed or materials furnished for the erection and construction' of a building. It is perfectly mani

and yet Mutual Benefit, etc., Co. v. Rowand, 26 N. J. Eq. 389, decides that he is entitled to a lien under our statute. When a man furnishes materials, he is nominally being paid for the materials, as materials, and not for the labor that went into them, as labor. He charges so much for materials, and, if unpaid, his lien claim is not nominally for labor performed in the erection and construction of the building, but for materials furnished for the erection and construction of the building. Can any one doubt, however, that in substance the lien is being maintained for labor? When the manufacturer fixes his price at so much 'delivered at the building,' does any one doubt that the price includes an allowance for cartage? In the case at bar it is sought to subject the building to a lien for labor performed in the erection and construction of the building because, had the transportation charges been included in the price of the goods, there could have been no doubt of the right to a lien. I am clear that such service constitutes labor performed for the erection and construction of a building. This is the view enunciated in Cyc. vol. 27, p. 44, where the following language is used: 'A lien is usually allowed for transportation of the materials to be used in the construction of a building.' This is the view supported by the following cases: McClain v. Hutton, 131 Cal. 132, 61 Pac. 213, 63 Pac. 182, 622; Fowler v. Pompelly [Ky.] 76 S. W. 173; McKeen v. Haseltine, 46 Minn. 426 [49 N. W. 195]; Hill v. Newman, 38 Pa. 151 [80 Am. Dec. 473]; and many others. The only openly antagonistic decision that I have found is Webster v. Real Estate Imp. Co., 140 Mass. 526 [6 N. E. 71]. I cannot adopt the reasoning used in that case. It is against the great weight of authority. The

dower. The only question in controversy was as to whether or not the plaintiff, Mrs. Scott, Appeal from Circuit Court, Hudson County. was married to a man named Ruth Goshen, Action by Edmund D. Vanderbilt and oth-who died seised of the land described in the ers against Kate A. Mial. Judgment for plain- declaration. The error assigned and argued tiffs, and defendant appeals. Affirmed.