179 U. S., page 23, 21 Sup. Ct., 45 L. Ed. 79. In our own state the supreme court has taken a different view upon the question as to whether the voting right of stockholders, as between themselves, which existed under charter or certificates, is subject to alteration and repeal by the legislature, and has held that it was not, because this voting power was a property right. In re Newark Library Ass'n, 64 N. J. Law, 217, 219, 43 Atl. 435 (1899). But the court of errors and appeals, on the appeal in the case, expressly withheld their decision upon this question, and disposed of the case upon another point. Rankin v. Association, 64 N. J. Law, 265, 45 Atl. 622. In reference to the rights which result to a stockholder from membership and property rights, the latest decision of our court of appeals is the case of Insurance Co. v. Schwarzwaelder, 44 Atl. 769 (Nov. 20, 1899; not yet reported in the official reports). In that case an act of the legislature, passed after the incorporation of a mutual fire insurance company, authorized its conversion into a jointstock company. As a member of the mutual insurance company, defendant's rights arose from taking out an insurance policy. This was a very small property right, and one which, by the terms of the policy, was subject to termination upon the giving of a notice of cancellation by the company. The court of errors and appeals decided that the subsequent law authorizing the change of the mutual company into a joint-stock company was a change of a substantial right of the member who became and continued to be such by reason of his policy, and was therefore unconstitutional. A striking instance on the difference in the operation of subsequent legislation upon the property rights and upon the voting right appears in this very act of March 28, 1902. By the second section, two-thirds in interest of stockholders present at meetings were given the power which previously belonged only to two-thirds of the whole stockholders, whether present or not. Such subsequent regulations of the voting power of stockholders of corporations under the general corporation law have never been questioned. The second section is the change now under review, impairing what I consider to be the property right. I think, therefore, the act of March 28, 1902, being passed after the vesting of this property right of equal share on distribution of capital, had no effect to give an authority to make this change; and as this is the only legislative authority for the reduction of the preferred stock, and the distribution of capital connected with the reduction, or for redemption and retirement of preferred stock out of the bonds in the manner proposed, the execution of the plan proposed for the distribution of capital must be enjoined, as against the complainant, unless she assents thereto. The act being unconstitutional for this reason, I do not consider or pass on the other ground of unconstitution

ality urged, namely, that it is a special act conferring corporate powers. Part of this plan contemplates the issuing of bonds for the purpose of raising money for general corporate purposes, and the votes of the stockholders were taken separately upon that part of the plan. It has not been suggested that the $50,000,000 could not be raised, and no injunction in this case should at all affect that. This act of March 28, 1902, authorizes the reduction or retirement out of bonds, or the proceeds of bonds. The resolution of the directors was also that the retirement should be out of the bonds, or proceeds of bonds. It included both methods. The only way in which this present plan comes to be restricted to a redemption out of the bonds alone, as distinguished from the proceeds of bonds, is the fact that in connection with the resolution of the directors there is also an approval of the contract with the bankers, and that in the contract with the bankers the only offer is that of a redemption out of the bonds. The only question now considered is the effect of a plan for redemption out of bonds, and the injunction will go only against issuance or delivery of any bonds under the bankers' contract, except the $50,000,000 bonds issuable and deliverable for cash subscriptions.

4. The complainant had notice on or about May 10, 1902, of the adoptions of the resolutions of the directors approving the plan, and of its submission to the stockholders, and on May 19, 1902, had notice of its adoption by the stockholders. The delay of 20 days in applying for a preliminary injunction renders it proper, under the circumstances of the case, to direct that the preliminary injunction be issued upon the condition that if defendants desire to appeal from the order, and to bring on the hearing of the appeal at the June term of the court of errors and appeals, complainant will consent to the setting down of the appeal for hearing, and bringing on the hearing at the June term.

(64 N. J. E. 84)

WHITE v. WHITE. (Court of Chancery of New Jersey. Sept. 20, 1902.)

DIVORCE EVIDENCE OF ADULTERY

SUFFICIENCY.

1. Evidence in an action for divorce examined, and held sufficient to show that both parties were guilty of adultery, and that neither was entitled to relief.

Petition for divorce by George Wallace White against Annie Mae White, and crossFinal hearing on petition by defendant. pleadings and proot. Relief denied both parties.

R. S. Hudspeth, for petitioner. Z. M. Ward, for defendant.

PITNEY, V. C. The petitioner, George Wallace White, by his petition charges his wife,

Annie Mae White, the defendant, with adultery with one Edward Zinke, and prays for a divorce by reason thereof. The defendant, by her answer, denies the adultery, and by way of defense and in a cross-petition charges her husband with adultery with a Mrs. Julia Eaton, and prays for a divorce on her part from her husband. By two several amendments, which she was allowed to make, the defendant further charges her husband with adultery with an unknown woman at a roadside tavern, and also with adultery with a certain Mrs. B. at a time and place named. The petitioner, by replication, denies each of these charges. Evidence was adduced on seven nonconsecutive days between the 25th of June, 1901, and the 21st of April, 1902, inclusive. The evidence is voluminous, and contradictory to a painful extent, showing clearly an unusual amount of perjury on one side or the other, and almost certainly on both. The evidence adduced on each side in support of the charges made is ample to support them, if believed; and the denials and contradictions on each side are ample, if believed, to refute the charges.

I might content myself with stating the effect upon my mind-first of listening to the evidence with care; second, of elaborate and able arguments on each side; and, third, of a careful perusal of the evidence as transcribed. But the standing of the parties in the community, and the importance to each of the result to which I feel myself constrained to come, and the very able manner in which the questions have been discussed by counsel, induce me to give my reasons at length. The petitioner is, I believe, the only child of his parents, who seem to have lived for the greater part of their lifetime in the city of Paterson, and the father seems to have acquired considerable wealth. The petitioner is a well educated man, a practicing physician, and it is said has a large practice. The defendant's maiden name was Wheatley. She is a native of New York, a daughter of a scenic artist, who died during her infancy, and left her to the care of her mother, who has resided for many years in Paterson, where the defendant seems to have been reared. The parties were secretly married while living at Paterson on the 17th of October, 1891. Some time thereafter the petitioner, who was desirous of establishing himself in the practice of medicine, moved with his parents to West Hoboken, and took his wife with him. His father became the owner of a dwelling on the corner of Palisade avenue and street, the front of the first floor of which was used as a drug store. The petitioner opened his suite of offices on the same floor, in the rear of the drug store, with a door opening on the side street. The father and mother occupied the first floor above for their residence, and the petitioner and his wife occupied the second floor above for theirs. One child, a son, was born to them in the year 1896. This mode of living continued until the parties separated in

January, 1901. The suit was commenced on the 30th of November, 1900, and the parties had occupied separate apartments for some time previous to that date, and in January, 1901, the wife withdrew herself to her mother's house at Paterson, where she has continued to reside ever since. The parties áre both young, of a suitable comparative age, both possessing attractive personalities, and, if both had been faithful to their marriage vows, should have led a model married life.

Taking up now the case made by the petitioner against his wife. About the year 1895 or 1896 the alleged paramour of the wife, Edward Zinke, came to work as a boy in the drug store below the living apartments of the parties. He was then only 16 or 17 years of age, and at the time the defendant is alleged to have committed adultery with him,-1899 and 1900,-was between 18 and 19 years of age. The evidence on the part of the petitioner tends to show that the wife took a fancy to this lad; that she was seen by several witnesses at different times fondling him in the part of the drug store called the "Prescription Department," behind a solid screen, and also in her husband's office, in his absence. It further appears by the proofs that she frequently sent for him during the day and evening, while her husband was making his professional visits, to come to her apartments on the upper floor. This is proved by the female servants who were in the employ of the parties hereto-first, a colored woman named Mrs. Brown; and, second, a Mrs. Hightman, who at the time in question was a single woman named King, and subsequently married the petitioner's coachman. Both these females swear that they had known the defendant in the daytime, when in a state of entire undress, lying on her bed in her bedroom, to send for Zinke to come upstairs on some errand, and have him come into the bedroom, sit by her, and place his hand upon her chest, and on one occasion lie on the bed beside her, and that they there indulged in hugging and kissing. This, if the evidence is to be believed, was actually seen by the witnesses. They were also seen in the same position in the evening, and on one occasion, after the parties had been so in the defendant's room together in the evening, the witness Mrs. Hightman found under the bed two soiled towels, in a condition indicating clearly the use to which they had been put. She swears that she called the attention of the defendant to the condition of these towels, and the defendant gave a reason therefor. Charles Hightman, the coachman, testified to seeing acts of familiarity between the defendant and Zinke, both in the rear of the drug store and in the living apartments above. In addition to the evidence of these servants, there is the evidence of one Land, a private watchman, to the effect that he on more than one occasion had seen the defendant and Zinke embrace each other behind the prescription counter, and in the doctor's office, in the rear thereof. To the same

effect is the evidence of Charles Lauchenard, another boy who worked in the drug store. Also Fred Hellstern, a person who frequented the drug store, testifies to the same effect. Finally, the attention of the proprietor of the drug store, Mr. Weisman, was called to the unseemly intimacy between Zinke and the defendant, and on February 21 or 22, 1900, he swears he discharged Zinke, and that he did so because of the intimacy which he himself observed between the defendant and Zinke, supplemented by what he heard from others. Both the defendant and Zinke swear that just before Zinke left in February, 1900, the petitioner accused her of undue intimacy with Zinke, and that he called Zinke into the room, and charged him with it in defendant's presence, and that both denied any undue intimacy; that the defendant advised Zinke's mother to withdraw him from work in the drug store, and that he voluntarily withdrew, and was not discharged. Next we have the evidence of a Mrs. Young, who was a distant relative of the petitioner, and lived with her husband in West Hoboken, and to whom the defendant made, as testified by Mrs. Young, confidential disclosures. Defendant told her -so she swears-that she was fond of young Zinke, that she loved him, and that she preferred him to her husband. She admitted to Mrs. Young that she had gone with him to the Hotel Vendome, New York, and had had a good time. Mrs. Young further swears that clandestine correspondence between the defendant and Zinke was carried on at her house by means of letters written to the defendant by Zinke, dropped in the post office, and directed to her at Mrs. Young's house, and then forwarded or delivered by Mrs. Young to the defendant. One of these letters from Zinke, which defendant opened at her house, she read, tore up, and left the pieces where Mrs. Young was able to gather them together so as to read the whole letter; and she swears that the contents indicated improper relations between the parties. This letter was not produced, because, as Mrs. Young swears, it had been destroyed. She also swears that defendant opened and read some of Zinke's letters in her presence, and permitted her to see the contents, and that they contained expressions of endearment. Further, the carrying of letters between the defendant and Mrs. Young's house was sworn to by the defendant's domestic, May Lukeman. The delivery of letters at Mrs. Young's house, addressed to the defendant, was also proven by the postman. It is further proven by the postmaster that the defendant rented, In her own name, a private box, No. 64, at the post office, where she had letters delivered to her. Mrs. Young further testifies that she personally knew Zinke to meet the defendant on the ferryboat, and cross with her to New York on two occasions. Mrs. Young further swears that on one occasion she happened to meet Zinke and the defendant in a street car going up Broadway in New York;

that they both alighted at Fortieth street; that she alighted also, and followed them to the Hotel Vendome, at Forty-First street and Broadway; saw them enter the hotel together; that she waited outside a considerable length of time, and did not see them emerge. Further evidence on the topic of the alleged visits to the hotel is given by three colored men, two of them hall porters, and one an elevator boy, in the Hotel Vendome, who were produced by petitioner, and all testified that they had seen Zinke and the defendant together in the hotel; that they had seen them come in together, and had seen Zinke register names, and one swore that on one occasion he looked on the book and saw the name West and wife; and the elevator boy said that he "roomed" them, that is, had taken them to the room assigned to them. Then there is the evidence of a Mrs. Godfrey that she lived in one of the upper floors of a small flat house in Hoboken, and that on the floor beneath her lived a Mr. and Mrs. Cook; that Mrs. Cook (first name Jennie) consulted her as to the propriety of permitting the defendant herein, with whom she was acquainted, to meet a man in her rooms, and that on one occasion, of an afternoon, in April, 1900, when such meeting took place, she was called downstairs by Mrs. Cook, and that the witness and Mrs. Cook each in succession looked through the keyhole of the front room, and saw the defendant and Zinke embracing each other. Her evidence is supported by that of her two children, who saw Zinke going in the house, and one of them was requested by Zinke, whom he recognized in court, to mind his bicycle while he was in the house, which he did for about two hours, and the other, a girl, was sent by the defendant with money to buy a bottle of whisky, which she did, and returned and gave it to the defendant. The suspicions of the petitioner were aroused in the winter of 1900, and he set a watch upon his wife, with the re sult that she was found on the street in the evening of November 17, 1900, with Zinke, who lived all the while with his parents in Hoboken, and was followed with Zinke to his mother's house, and a scene occurred there, which I deem it not important to enlarge upon. On the day of this meeting, November 17, 1900, and before the occurrence just mentioned, among the letters which were brought in the ordinary course of affairs to the petitioner's office, was an envelope addressed to the defendant in her own handwriting, at the box No. 64, which the petitioner opened, and found to contain a long letter from Zinke, admitted to be in his handwriting, and to have been mailed by him in the envelope furnished for that purpose by the defendant. That letter, so far as Zinke goes, is entirely inconsistent with proper relations between him and the defendant. The explanation of this letter and of the other correspondence given by defendant is that Zinke was employed by her to obtain evidence of misconduct on the part of her husband; that, in short, he was acting as

a detective for her; and a letter was introduced by the defendant, addressed to her by Zinke, which she and Zinke swear was the letter to which Zinke's letter to her before mentioned was an answer. I stop to make these two observations about it:-First, that there is no evidence, other than the testimony of Zinke and the defendant, that the letter of defendant to Zinke was written at the time they swear it was written; and, second, that the incriminating letter is in no sense an answer to it. Another explanation is that Zinke, knowing that petitioner was suspicious of himself and the defendant, wrote this letter with a view of having it fall into the petitioner's hands for the purpose of angering him. This excuse, considered in the light of all the attending circumstances, is worse than none.

In estimating the value of this and all the evidence, standing by itself, and disconnected from the denials and explanations which I will notice further on, it is proper to say that circumstances arose in the course of the production of the evidence in this cause which constrains me to look upon all of that produced against the defendant with much distrust, and subject it to severe criticism. Those circumstances are the following: On the 13th of January, 1902, in the course of the examination of a witness produced by the defendant, it appeared that the petitioner had used money to hire a person in attendance before the court, whose evidence it was supposed would tend to prove the charges against the petitioner, to absent himself from the court, or, if he was called to the stand, to know nothing. This matter coming to the attention of the court, I immediately instituted proceedings to investigate it, and called upon the petitioner to show cause at a future day why he should not be adjudged guilty of contempt of the court. The proceedings so instituted resulted in the taking of considerable evidence, which satisfied me that both the petitioner and his alleged paramour, Mrs. Eaton, had been guilty of tampering with the witness in the manner stated, and also that two or three employés of the petitioner had likewise been guilty, with the result that they were all adjudged guilty, and all the parties fined,—the petitioner and one of his employés in a large

sum.

It further appeared in the progress of the cause that the petitioner was possessed of pecuniary means, which enabled him to expend money freely in procuring evidence both to sustain his own view of the case and to combat that of the other side. I was entirely satisfied in that proceeding for contempt that both the petitioner and Mrs. Eaton had deliberately falsified. On the other hand, while the defendant has enjoyed but a comparatively small alimony pendente lite, and her counsel has received a very moderate counsel fee, and she, so far as appears, is not possessed of any pecuniary means, yet she seems to have friends, and to have been able to procure evidence and witnesses to support her view of the case; and two apparently respectable fe

males, who were called by her to assist in proving an alibi on one of the days on which the evidence tended to show that she had been guilty of adultery with Zinke, were shown to have falsified, and after the evidence showing the falsity of their testimony had been taken, they felt constrained to admit that they had been mistaken. I am, however, unable to see how they could have been mistaken. I mention this now to show that the evidence on both sides must be scanned with great care, but I feel constrained to say that that produced on the part of the petitioner deserves the more severe scrutiny. Now, coming to the denials and explanations of the defendant. She denies each and every allegation of the petition, and so does Mr. Zinke. She makes somewhat of an attack upon the character for truth and veracity of Mrs. Hightman, her house servant. But I think it fails. She denies all the conversations with Mrs. Young. She admits part of the clandestine correspondence,-in all two letters; says it was carried on with Mr. Zinke for the purpose of discovering the wrongdoing of her husband. But in view of the testimony of both these parties as to the infrequency of their interviews, and the paucity of the correspondence between them, it is difficult to imagine how his services as a detective could have been of much value to her. She denies that she had ever been at the Hotel Vendome. In addition to that denial, depositions were taken in New York of Mr. Hatterman and one of his clerks, the proprietor of the drug store where Zinke was employed in the summer of 1900, and of one of the proprietors of the Hotel Vendome, which tend somewhat to render the stories of the colored hall boys improbable. It appears by the evidence of Mr. Hatterman's drug clerk that Mr. Zinke was employed in the drug store at 795 Columbus avenue, New York City, during the months of May, June, July, and August, 1900. The clerk is quite positive as to the months and length of time. Mr. Hatterman seems to think it was much longer, and that Zinke's employment commenced in the latter part of the year 1899, in which he is clearly mistaken. It appears that Zinke's attendance was requir ed every day in the week except Thursday, which was his day off; it being the custom of the trade to allow a clerk one day off in each week; and I infer, though it does not distinctly appear, that he occasionally had a Sunday off, and it is proven by the employer and the clerk that he was regular in his attendance. It does not appear affirmatively that he did not and might not occasionally exchange his day with the other clerk, whose day off was Wednesday. Now the register books of the hotel were produced before the master in New York, and from those it appears that Mr. and Mrs. F. E. West registered on the following days: Thursday, April 12, 1900; Wednesday, April 25, 1900; Friday, May 4, 1900; Thursday, May 17, 1900; Thursday, May 24, 1900; Friday, June 8, 1900; Wednesday, June 27,

1900; Monday, July 2, 1900; Sunday, July 8, 1900; Wednesday, July 25, 1900; Monday, July 30, 1900; Monday, August 6, 1900; Thursday, August 16, 1900; Thursday, August 23, 1900, Mrs. and Mr. West; Wednesday, August 29, 1900. Against some of these entries the word "Noton," or "Noroton, Conn.," is written, to indicate the residence, but I infer from the evidence that it was not easy to decipher, for one of the clerks in the hotel in his examination swears that he himself could not make it out. The evidence of the New York drug clerk was to the effect that those entries were not in Mr. Zinke's handwriting, with which he said he was somewhat familiar. I place little confidence in that evidence, because it is not probable that Mr. Zinke would have failed to somewhat disguise his handwriting if he made the entry. Besides, specimens of his handwriting in letters produced show a writing without much settled style. He sometimes, as he swears, writes back hand, and sometimes the ordinary slanting hand. In addition to that is the evidence of a clerk in the hotel, who attended more or less during the day (his time was divided with another) to the reception of guests. He says that he did not see all the guests register, and he swears that he does not recollect ever seeing the defendant and Mr. Zinke, or either of them, at the hotel. Pressed with regard to the entry of "Mrs. and Mr. West," he declared, in substance, that he did not know who made them; that he did know a Mr. West who frequented the hotel, and that Mr. Zinke was not the man. He swore that the hotel had upwards of 180 rooms, and that it did a very large transient business; said he thought the entry of August 23, 1900, was made in his presence, because apparently he was on duty at the time. Then he swears in this wise: "The party I know frequenting the hobel by the name of West is the party who made the entry of August 23d, 'Mrs. and Mr. West,' to the best of my knowledge." Then, on cross-examination, he said: "I do not know whether these parties' ('Mrs. and Mr. West') entry of August 23, 1900, Room 129, are Mr. and Mrs. F. E. West. I can't read their residence on the register. I do not know their residence, address or business. I am not acquainted with them, nor know where they come from. I do not know whether they are man and wife." Then shown entry of Mr. and Mrs. F. E. West, June 8, 1900, Room 201, he said: "I should judge they were the same parties. I do not know them, and cannot describe them. I can't make out the address from the book. I don't know their business or residence, and I can't say whether they are man and wife." Then he was asked. this question: "Q. How do you know these Wests in view of your testimony? A. I know a man who frequents the house of the name of West, and wher he registers I recognize him. 1 got his name from his registering, and that's all I know about him." He further says that Mr. Zinke and Mrs. White

might have been in the hotel, and registered as man and wife, without his knowledge, under some fictitious name. I did not have an opportunity to see the book or these witnesses. I cannot value their evidence with as much accuracy as I can that of the three colored men, whose appearance and bearing on the stand was of the very best.

But the defendant goes further and sets up an alibi with regard to the charge of August 23d. She swears that on the morning of that day she went to Paterson, and met her mother at the station there, and with her went to visit some ladies at the village of Waldwick, in the northern part of New Jersey, and returned at night. In that she is supported by her mother and the two ladies who live in Waldwick, and who are the same persons that I have previously stated were substantially convicted by the uncontradicted evidence of other witnesses, and then by their own admissions, of giving false testimony in order to fix the date (August 23d) of the visit. Put she is further supported by the evidence of a Mrs. Welcher, apparently a respectable married woman of Paterson, who swears that on the 23d of August she was passing near the railway station in Paterson, and there saw the defendant about to go with her mother to Waldwick. She fixes the date by the fact that she was that day moving from one house to another in the city of Paterson. That she did move about that time is undisputed: but a whole day's time was occupied in hearing the evidence of witnesses to prove that she moved on the 22d, and not on the 23d, of August. The result of the evidence, in my judgment, is to show that she moved partly on the 22d and partly on the 23d. So that, without convicting Mrs. Welcher of any willful or intentional prevarication, it is quite in accord with the facts to believe that the day on which she saw the defendant at the Paterson station was the 22d of August, and not the 23d. I place no confidence whatever in the evidence of Mrs. Wheatley or the other two ladies, who fix the date of the visit as of the 23d.

The evidence of the hotel clerk fails to satisfy me that the entries in the book of Mrs. and Mr. West on the 23d of August might not have been made by Mr. Zinke. But, after all, the case against the defendant, as to that date, rests upon the evidence of Mrs. Young and the three colored men, who belonged to the hotel. If either of those are reliable, the case, as to that date, is made out.

Now let us see what is the result of disbelieving Mrs. Young's evidence. The 23d of August did come on Thursday, and that was Mr. Zinke's day off from the drug store. Now, if Mrs. Young is not reliable in that respect, I am driven to the conclusion that the whole of her and the colored men's story in that regard is manufactured out of the solid; and in order to manufacture that story the petitioner, or some one in his behalf, must have ascer tained that Mr. Zinke's day off was a Thurs