It is to be assumed that the rule thus enunciated will have accorded to it in a case involving human life the same force that was given to it in a case involving a few months' rental of a farm. The rule itself which is in harmony with the great preponderance of decisions elsewhere, is thus stated in one of the most recent works on Justice Collins: “It was not legal evidence. | the testimony submitted to the jury to show Oral declarations made to one sought to be the assent of the party, which is quite aside charged thereby may in some cases be con- from the error in the present case which was sidered as admitted by silence, but the rule that that question was not submitted to the is otherwise as to letters. The recipient is jury, who were, on the contrary, permitted not called on to rely or be considered as ad- to treat the letters as evidence against the mitting what is written." This case came defendant upon their own intrinsic signif upon error to this court where the judgment icance. The wrong and injury done to the of the Supreme Court was unanimously af- defendant by such illicit evidence is manifirmed for the reasons given in the opinion fest. He was being tried for the murder of from which I have quoted. Howell v. Hand, his wife; if he had formed the design to 61 N. J. Law, 695, 43 Atl. 1098. get rid of her by poison, it greatly strengthened the conclusion that he was her murderer. The state under its claim of murder in the first degree, was obliged to prove that such a design existed at the time of its deliberate execution, and it undertook to prove this by showing a previous design to get rid of her by divorce, else there was no relevance in the letters. If the letters were not legal evidence for this purpose, a more injurious error could hardly be imagined, for it was not without reason that the state claimed and the court repeated that "the letters were the keystone of the case that it sought to make against the defendant," since out of them the state forged (to adopt the common figure) one of the links of a chain that is proverbially no stronger than its weakest link, and which, it may be added, ceases to be a chain when a link is wrested from it by the law of evidence. evidence: "Letters written to the party and received by him may, under some circumstances, be read against him, but, before they can be received in evidence against him, there must be some evidence besides mere possession showing acquiescence in their contents and proof of some act, or reply, or statement." Jones on Evidence, 269. The author cites, among other cases, Commonwealth v. Eastman, 1 Cush. (Mass.) 189, 215, 48 Am. Dec. 596, in which the Supreme Judicial Court of Massachusetts said: "The letters, however, if properly identified, would not of themselves authorize any inference against the defendants; they were only the acts and declarations of others; and, unless adopted and sanctioned by the defendants by some reply or statement or by some act done in pursuance of their suggestions, they ought not to prejudice the defendants. Let ters addressed to an individual and received by him are not to have the same effect as verbal communications. Silence in the latter case may authorize the inference of an assent to the statement made, but not equally so in the case of a letter received but never answered or acted upon. So far as these letters might have been shown by other proof to have been acted upon or sanctioned by the defendants, so far they would have been competent evidence." This is the rule that is at once consonant with reason and with the fundamental rules of evidence as applied in English-speaking courts; it accords with our own rule upon this topic; and I can perceive no benefit in multiplying the citation of authorities. They are collected in the American Digest, IX, Hearsay, B, (2), 1678 to 1685; in the Centennial Digest, Hearsay, 317 (4), and in the Key-Number Series, Evidence, 318. Most of the cases deal with the admissibility of letters, a question that we have disposed of; many of them deal with the probative effect of letters, which is conceded in the present case, if the letters were legal Without the evidence afforded by the letters, no one can say that the jury would have found that the defendant had formed the design to get rid of his wife or that he was beyond a reasonable doubt guilty of her premeditated murder. This manifestly injurious character of the error that we have pointed out requires the reversal of the judgment of the court of oyer and terminer. SWAYZE, J. (dissenting). I cannot agree that the so-called Bunny letters were admissible to show a motive for the commission of the crime, and yet were in some way to be restricted in their use by the jury. I agree that, to make them evidential against the defendant as to the facts therein stated, some action on his part must appear. My dissent is upon the ground that the evidence in the case demonstrates not only that the defendant received and retained the letters, but by his conduct assented to the statements therein contained. The letters cover a long period of time and constitute a regular series continued until after his arrest. He acknowledged the receipt of the last three of the series without objection to the statements therein that indicated the expectation of the writer that he would soon be free to marry her. One of the most important of the letters contains his own personal memoranda and comments. He understood and explained to a witness the enigmatical references to the relations between him and the writer; he received letters addressed to him those who have filed legal stop notices is uncontractor of the stop notices served, though he affected by his failure to give notice to the incurred thereby a personal liability. [Ed. Note. For other cases, see Interpleader, Dec. Dig. § 12.*] 2. CONTRACTS (§ 44*)-BUILDING CONTRACTS -FILING-STATUTES. A building contract includes all matters agreed on by the parties and may include within itself the specifications, and, when that is done, the filing of the contract is a filing of the specifications within the statute contemplating shall be filed. that specifications accompanying a contract travels took him, which could not have hap-due under the contract for distribution among pened unless the writter was informed of his whereabouts. These facts suffice to show that the letters were only one side of a mutual correspondence. In view of the frequent references of the writer to his obtaining a divorce and soon being free to marry her, the correspondence would not have been continued as it was if he had in any way repudiated her repeated allusions to the prospective divorce and marriage. The opinion concedes that the letters were properly admitted in evidence and that "no one can read them without a moral certainty that some such promise had been made by the defendant or tacitly permitted by him to be assumed by her"; and that it was in fact "precisely the sort of evidence that the men who compose the jury and that all of us are accustomed to rely upon in the daily affairs of life." [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 168; Dec. Dig. § 44.*] 3. INTERPLEADER (§ 23*)-BILL BY OWNER OF BUILDING AGAINST CLAIMANTS - ALLEGATIONS. A bill of interpleader by an owner of a building erected by a contractor, for distribution among those who have filed legal stop notices, which alleges that the building contract was duly filed in accordance with the statute, sufficiently alleges, as against a demurrer, comspecifications accompanying a contract shall be filed, and the fact that the contract does not include the specifications is available by answer. [Ed. Note.-For other cases, see Interpleader, Cent. Dig. §§ 47, 51; Dec. Dig. § 23.*] 4. MECHANICS' LIENS (§ 113*)—SERVICE OF I know of no rule of evidence that makes documents of this kind admissible and pre-pliance with the statute contemplating that vents the jury from drawing inferences which these quotations from the opinion show that they could not help drawing. I think that, under the circumstances, it is not a jury question whether the defendant by some act of his made statements of another person evidence against him. If he tacitly or expressly assented, as I think he did, the letters are evidential for the same reason that statements made in his presence by another, to which he either tacitly or expressly assents, are admissible. We have held that, STOP NOTICES-EFFECT. All payments to a building contractor are proper credits to the owner as of the date of prior stop notices, and a stop notice, served the completion of the building except as to subsequent to the maturity of the last installment is operative only against the part of the installment remaining unappropriated at the time of the stop notice. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 148; Dec. Dig. § 113.*] 5. MECHANICS' LIENS (§ 113*)—SERVICE OF STOP NOTICES-EFFECT. Where an owner of a building erected by a contractor guaranteed payment of an order due a third person, the order operated as an equitable assignment of the amount of the order on the fund due the contractor as against all persons who, at the time of the acceptance of the order, had no prior rights, and as to such persons it is immaterial as to when the order was paid. where the court admits a confession as voluntary, it is not for the jury to decide afterwards that it was involuntary. If the court admits declarations as dying declarations, it is not for the jury afterwards to say that they were not made under a sense of impend-drawn by the contractor against him for money ing death. So, in this case, the court having decided that the letters were admissible, it was not for the jury to say whether the defendant had made the statements therein evidence against him, and the court was not bound to submit this question to the jury. No doubt the trial judge would upon a proper request have warned the jury of the care with which evidence of that character must be scrutinized, but when it is once conceded, as the court now concedes, that the letters are logically probative and legally admissible, their effect cannot be limited in any other I think the judgment should be af way. firmed. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 148; Dec. Dig. § 113.*] 6. INTERPLEADER (§ 23*) - BILL - ALLEGATIONS-SUFFICIENCY. A bill of interpleader by an owner of a building erected by a contractor for the distribution among those who have filed legal stop notices, which alleges that several claimants, made claims on the owner to the exclusion of to the amount due under the contract, have other claimants, and which sets forth the substance of the stop notices, thereby creating substantial doubt as to the sufficiency of some of the notices, shows sufficient uncertainty as to the rights of the claimants to entitle the owner to file the bill. [Ed. Note.-For other cases, see Interpleader. Cent. Dig. §§ 47, 51; Dec. Dig. § 23.*] Appeal from Court of Chancery. Bill of interpleader by Stephen Keupler and another against Andrew Eisele and othFrom an order of the Court of Chandenying a motion to dismiss the bill ers. The right of the owner of a building erected by a contractor to pay into court money cery For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes and overruling a demurrer thereto, defend- bar any personal claim demurring defendant ants appeal. Affirmed. may have against complainant. I am conThe following is the opinion of Vice Chan- vinced that the failure of complainant to cellor Leaming: state in his bill that he gave notices to the contractor of the several stop notices served "On Demurrer of Eisele & Manning to Bill will not render the bill demurrable as to of Interpleader. demurring defendant. So far as the present "The objections to the bill, as urged by bill discloses, complainant appears to have demurrant at the argument, are as follows: no interest whatever in the fund in his "1. That it does not appear that complain-hands, and I see no reason emanating from ants are indifferent and disinterested, but the objection now under consideration why on the contrary they have guaranteed or he should not be privileged to require all made payment of some of the claims and defendants who have asserted a claim against deducted them, and now ask defendants to that fund, to settle among themselves their interplead as to the balance. several rights against the fund. "A motion was heretofore made against this bill in behalf of other defendants. This same objection was then urged and passed upon by me. A copy of my memorandum opinion then filed will be hereto annexed as embodying my present views on that question. 1 "2. That the bill does not disclose sufficient doubt touching the rights of the respective claimants to justify a bill of interpleader. "That question was also considered by me under the former motions. [1] "3. That the bill fails to show that complainants, as owners, gave notice of the several claims to the contractor. This objection to the bill has not been heretofore considered by me. "I do not think it material to complainants' right to pay the money in their hands into court for distribution among the parties who have filed legal stop notices that the bill disclose whether he gave written notices to the contractor of the stop notices so served. Any failure of complainant to give such notices cannot deny to the materialmen, who may have served proper stop notices, their statutory lien on the fund. As pointed out in the annexed memorandum opinion, all payments which have been made by the owner are clearly proper credits to him as of the date of the completion of the building, except as to prior stop notices, and the funds paid into court are more than ample to satisfy all persons claiming under stop notices served prior to that date, and stop notices served subsequent to that time are operative only against the unappropriated balance. If complainants have, perchance, incurred personal liability to demurring defendant by reason of failure to give notice to the contractor of stop notices, such personal liability to demurring defendant will neither enlarge nor diminish the rights of the persons who have served stop notices to enforce their liens against and therely appropriate the balance of the contract price now in the hands of complainant, nor will any final decree in this case be operative to Reported herewith under heading: "On Motion [2] "3. That the bill does not disclose that specifications were filed with the contract. This objection to the bill has not been here tofore considered. [3] "The statute contemplates that specifications accompanying a contract shall be filed. A contract may be so drawn that all necessary specifications touching material and dimensions are embodied in the contract itself. I apprehend that it is only where the contract is made with reference to in dependent specifications that the statute con- laborers. The present bill asserts that the of attachments or taxed. "I will advise an order overruling the demurrer, but without costs. "On Motion to Dismiss Bill of Interpleader. "As the present motion is, in effect, a demurrer to the bill, the single question here presented is whether the bill on its face discloses facts sufficient to sustain a bill of ers. French & Richards, of Camden, for appellants. George J. Bergen, of Camden, for respondents. PER CURIAM. The order appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chancellor Leaming. (80 N. J. E. 233) GREIMS v. GREIMS. June 20, 1912.) [4] "On August 12, 1910, the day the build-| averments I think sufficient to sustain the ing was completed, complainants were, by bill." the terms of the contract, required to be in possession of the final installment of the contract price, the amount of which was $1,616. Complainants were on that day entitled to pay that money to the contractor, except as against such rights in that fund as had at that time arisen in behalf of othAn advance payment made by complainants, as owners, to the contractor or to his order prior to that date is necessarily treated as made on that date and will discharge the owners to the amount of such advance payment, except as against rights (Court of Errors and Appeals of New Jersey. of others which, prior to that date, have arisen in the fund. A stop notice served subsequent to the time the last installment became due is operative only against such part of the last installment as remains unpaid or unappropriated at the time such subsequent stop notice is served. Taylor v. Reed, 68 N. J. Law, 178, 52 Atl. 579. There can be no doubt, therefore, touching the right of complainants to interplead so far as the objection is concerned, that they should pay into court the full amount of the last installment without first deducting the sum of $496 which was paid on contractor's order May 25, 1910, for the stop notices served have no rights as against that payment. 1. DIVORCE (8 49*) - ADULTERY TION. - CONDONAA husband condones his wife's adultery by continuing marital intercourse with her after knowing of her offense. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 171-179; Dec. Dig. § 49.*] 2. DIVORCE (§ 109*)-ADULTERY-CONDONATION-BURDEN OF PROOF. On a bill for divorce for adultery, condonation is a conclusion of fact, if not of law, and must be proved by defendant, upon whom lies the burden of proof. [Ed. Note.-For other cases, Cent. Dig. §§ 354-364; Dec. Dig. § 109.*] see Divorce, 3. DIVORCE (§ 135*)-ADULTERY-CONDONATION-EVIDENCE-SUFFICIENCY. Evidence held insufficient to show condonation of a wife's adultery. Cent. Dig. § 451; Dec. Dig. § 135.*] [5] "Complainants also deduct from the amount of the last contract installment $53 which was paid by complainants December 23, 1910, to the Haney-White Company by Appeal from Court of Chancery. virtue of a guarantee made by complainants Bill by Howard E. Greims against Jennie to that company May 21, 1910, wherein com- E. Stanney Greims. From the decree (79 plainants guaranteed the payment of an or- | Atl. 1048), both parties appeal. Reversed as der issued to that company by the contractor to petitioner, and affirmed as to defendant. on that date against complainants for money Cortlandt Parker, of Newark, for appeldue that company under that contract. With lant. James R. Mulligan, of Newark, for resuch an accepted or guaranteed order out-spondent. standing at the time the last installment fell due, the order clearly at this time became VROOM, J. The bill in this case was filed fully operative in favor of the person holding by the husband, charging his wife with adulthe order as an equitable assignment of the tery committed with one David Young, Jr., fund to the amount of the order, as against at York, in the state of Pennsylvania, on the all persons who at that time had no prior 29th day of January, 1908, and at divers rights. It therefore becomes immaterial as other times between January 24th and Febto such subsequent claims whether that or- ruary 16th of that year, at No. 55 Beaver der was paid by complainant on the day the street in York, and at various other places installment fell due or at a subsequent day, in that town. The Vice Chancellor held that for the holder of the order was entitled to the evidence established the guilt of the dethe money on that day. fendant, that the only debatable question [6] "I am also satisfied that the bill dis- was that of condonation, and that it had closes sufficient uncertainty as to the rights been condoned, and therefore advised the of the several claimants to entitle complain- dismissal of the petition of the husband. ants to file the bill. The bill alleges that The wife appealed from so much of the dethe several claimants to the fund have made cree as adjudged her guilty of adultery, and claims on complainants to the exclusion of the husband appealed from so much as deother claimants, and sets forth the substance creed that he had condoned his wife's deof the stop notices in a manner which may fense, and directed a dismissal of his petibe said to create substantial doubts as to the tion. We agree with the conclusion of the sufficiency of some of the notices. These Vice Chancellor as to the adultery of the For other cases see same topic and section NUMBER in Dec. Dig, & Am. Dig. Key No. Series & Rep'r Indexes wife, leaving only for consideration the con- [ found lying on the bureau in his wife's room donation on the part of the husband. [1] Condonation, as stated by Bishop in Marriage and Divorce (vol. 2, § 36), is "where the husband comes into possession of the fact and proof that his wife has committed adultery. Then, if he has marital intercourse with her, the law presumes that he condones the offense, and refuses him divorce." a letter from David Young, of a character certainly calculated to arouse his suspicions, and it evidently did, for he demanded an explanation of it from her. She said it was only some of Young's foolishness. She denied any guilt. He believed her, and they became reconciled and lived together, and he continued marital relations with her up to about the time he left her on August 1, 1909. He occupied the same bed with his wife until the separation, and admits that [2] It is well settled that condonation is a conclusion of fact, and not of law, and must be proved by the defendant, and the burden | earlier in the week, on up to Thursday night, of proof is upon the defendant. Graham v. Graham, 50 N. J. Eq. 701-706, 25 Atl. 358; Goeger v. Goeger, 59 N. J. Eq. 15, 16, 45 Atl. 349; Hann v. Hann, 58 N. J. Eq. 211, 42 Atl. 564; Bornstein v. Bornstein, L. R. 1893, Prob. Div. 292–302. [3] The learned Vice Chancellor bases his conclusion upon his belief that from the weight of the evidence the husband had marital intercourse with the defendant after he came into possession of the fact and proof, as he says, or, to use the expression in Marsh v. Marsh, 2 Beas. 281, "reasonable knowledge." In using the term "reasonable knowledge" in the case of Marsh v. Marsh there can be no doubt but that Chancellor Green was considering merely legal proof, for he says "reasonable knowledge may be said to have been when information of a fact is given by credible persons, speaking of their own knowledge, particularly if the same facts be afterwards proved and they become instrumental in the proof." If, then, the evidence in this cause had shown that the petitioner had produced any facts in evidence proving the guilt of the defendant and of which he was aware before he ceased having marital relations with her, admittedly there would be ground for the position of the court below that such marital intercourse was a condonation of the guilt of the wife. he may have had sexual intercourse with her. Eight days before he left his wifethat is, the Sunday beginning the last week in July, 1909-complainant stated that he was told by his brother Morton that David Young's wife had gone to York to obtain a legal residence there in order to sue her husband for divorce, and that she was going to name his wife as co-respondent in the case. Although complainant says he “didn't take any stock in what Morton had to say," the next day, meeting his wife's mother, Mrs. Davis, he asked her whether he could not have a little talk with her. On her assenting, while walking on the street with her, he told her he had been informed that his wife had been unfaithful to him for a year and a half, and that Mrs. Young had been in York maintaining a legal residence, and was going to name Mrs. Greims as co-respondent. Mrs. Davis asked him whether he was crazy or not, and said there is no truth in this, and said "she didn't see how I could believe that Jennie [the defendant] ever cared anything for Mr. Young." On returning from the walk, Mrs. Davis told the defendant what her husband had said, and that evening, as the defendant testified, she talked the matter over with her husband. He replied that the little baby did not look a terrible lot like him, that "he had been wise," and that she had been unfaithful to him for a year and a half. Then she added: "I was very nervous and excited, and he harassed me and talked a while, and said everything would be all right, and that is all that was said that night." The evidence in this case established the fact that the parties were married in September, 1904. After their marriage, they lived in several cities before coming to York, Pa., where the acts of adultery complained of were committed. Some of these acts were The next day, Tuesday, the petitioner went committed during the absence of the com- to the office of Charles W. Mercier, an uncle plainant from his home. The complainant's of his wife. Mr. Mercier testified that the business was that of a railroad accountant petitioner said to him: "Uncle Charlie, I am or auditor, and while at York was employed going to leave Jennie. Would you see her, by a New York firm to examine the accounts and have her walk quietly out." Then he of a trolley system in that city. He became (Mercier) asked what the trouble was, and peacquainted there with David Young, Jr., who titioner replied: "Jennie had been crooked is named as co-respondent, who was the su- for a year and a half, and I have known it." perintendent of said trolley system, and The uncle says he told him, if that was the Young and his wife and the complainant and case, he, the petitioner, was a fool to live his wife were much together. About the with a woman that long, knowing that she 24th of January, 1908, the complainant went was unfaithful to him, to which the petitionon business to New York, and remained for er replied: "Well, I thought I would give about a month and a half. It was during her a chance." The petitioner denies saying this absence that the adultery was commit- to Mr. Mercier that he had known his wife |