arrested in Brooklyn for nonsupport, and he was ordered to pay his wife $10 a week. He gave bond for this payment for one year, and did pay it, as well as giving his daughter $40 a month, and sometimes more. He continued these payments to his wife for two years after the time named in the bond, and to the daughter after her marriage, and until her husband was in fair circumstances. He also gave his daughter money at the time of her marriage, and at times when she applied for it. As I understand the evidence, he continued paying $10 a week for his wife's support until 1891. In the early part of that year he rented a house in Newark. He had previously purchased a property in Belleville, the title of which stood in the names of himself and son, and had commenced building a house thereon. He was very desirous of placing a mortgage upon this property, but his wife refused to join in it. He subsequently secured the whole title. In May, 1891, he addressed the following letter to his wife: "New York, May 26th, 1891. Mrs. O. F. Burton-Madam: Declining health has caused me to change my residence from the city of Brooklyn to the country. I have therefore rented a house, No. 389 Washington Ave., North Newark, N. J., where you are welcome to bed and board on and after June 5th, 1891, and after the said date I shall cease to pay to the Brooklyn board of charities the allowance awarded by the court for your support. For any further arrangement for a separate maintenance, I hereby refer you to my attorneys, Messrs. Dewitt & Prevost, No. 445 Broad St., Newark, N. J. Their card inclosed. O. F. Burton." The complainant went to the office of Mr. Dewitt, where she met her husband, and asked him what provision he intended to make for her, and he replied by saying to Dewitt, "You have my terms." He says that he wrote this letter because he thought it would make her sign the mortgage. In July, 1891, she had him arrested in Newark for nonsupport. She had him arrested in Brooklyn, a second time, but it is not clear if this was before or after the Newark arrest. The latter, defendant says, was on a very hot day, that the justice refused to take his own recognizance, and that he was locked up in a noisome cell, and kept there until he could get Mr. Sandford to come from Belleville and bail him out. He admits that he has addressed no conversation to his wife since she had him arrested and incarcerated in Brooklyn in 1887, and gives as his excuse her persecutions, as he terms her conduct, both as to arresting and imprisoning him, and crossing his wishes in reference to property which he had bought. He was discharged both in the proceedings in Brooklyn and in Newark. The complainant then brought this suit. I do not stop to examine whether the excuses he gives for separating himself from his wife's bed, and subsequently from the house

in which she lived,-that she persisted, against his remonstrances, in frequenting brokers' offices in Wall street, refused her cooperation in improving his property, and thwarted his plans of realizing on it,-are established by the evidence, or are, if true, coupled with his repeated arrests, a justification, because I do not think that such separation from bed and home is "extreme cruelty," as used by the statute, in the absence of evidence that it has had, or tends to have, serious effect upon the health of the wife. There is no such evidence in this case.

But she also testifies that he has been guilty of acts of personal violence towards her. She, however, only specifies two occa sions,-one in Jersey City in 1874, when she says he insisted on her doing some sewing for him on Sunday, and on her refusal took her by the throat and choked her. She says that, as she regained her upright position, her head struck his face, and blackened his eyes; that the children were at the time at Sunday school. The other occasion, she says, was in 1869, when he struck her in the presence of Mrs. Fountain. There is no evidence by any one who has known or lived with her, or near these parties, during their home life, from 1855 to 1887, a period of 32 years, who is produced as a witness to a single act of personal indignity or violence. The daughter, who has always been with her mother, says she never knew her father to use violence to her mother. He emphatically denies both statements. They were condoned, if they ever occurred. She is explicit in her statement that the occurrence in 1874 was the last act of cruelty on her person. They lived after that in the same home, either keeping house or boarding, although not occupying the same room, until 1887, or 13 years and more, and he, so far as the evidence shows, never attempted to do her bodily injury, except that she says in 1884 he attempted to poison her, and did produce abortion. Her grounds for the first accusation are so unsubstantial that the charge gives rise to the suspicion that she is under some hallucination with reference to her husband, or at least is ready or eager to believe him capable of anything, no matter how criminal or outrageous. As to the other charge, she testifies that after the birth of her daughter, in 1859, he performed on her, when enceinte, a criminal operation with an instrument made of whalebone, and thereby produced a premature birth, and that he thus produced on her person abortion no less than 10 different times. Defendant denies all these charges. There is no corroboration whatever. Of course, it is difficult to find corroborative evidence of the specific act. Cruelty by husband to wife, either by beating, or poison, or abortion, would almost invariably be done in secret; but there are always some attendant circumstances or resulting conditions that afford some means of verification. As to the incident of violence she swears to in 1874

in Jersey City, she says her husband's eyes were blackened. Her son was then 18 years of age, and the daughter 15, and they would undoubtedly have remembered such a fact, but they fail to substantiate the statement. There is no evidence on the point, but I suppose it may be taken as true that an abortion produced by instruments would result in serious illness, and its repeated production would have left its victim a physical wreck, instead of the, to all appearances, well-preserved matron who tells the story. I confess that I am unable to believe these accusations which the complainant makes of these attempts upon her health and life. They are at war with his whole life and character, and with the fact of their continued life together for many years. But, if true, each and every of these acts was subsequently condoned. He is now 70 years of age, and she is 67 years of age. They have not lived in the same house together since 1884. There is little probability, if possibility, that any such offense would again be committed. Divorce on the ground of extreme cruelty is a preventive remedy to protect the life and health of the wife, and not for the punishment of the husband. In my opinion, the facts do not justify a decree of divorce from bed and board, and I will advise that the bill be dismissed.

(52 N. J. E. 212)

EDMUNDS v. SMITH et al. (Court of Chancery of New Jersey. Nov. 2, 1893.)

COSTS-RELEASE OF ONE Defendant's LIABILITY -EXECUTION.

1. A decree was rendered awarding costs of suit to complainant, and directing execution therefor. For a consideration of $25 complainant gave S., one of the two defendants, a receipt reciting that S. was released from all liability for costs. Held to release S. only, and that his codefendant's property was liable for the balance of the costs.

2. A conveyance to S. by such codefendant of property owned by him at the time the decree was entered, before the decree is docketed in the supreme court, does not release the property from the lien of the decree for costs; Chancery Aet, § 56, providing that all decrees and orders of the court of chancery, whereby any sum of money shall be ordered to be paid by one person to another, shall have the effect of a judgment at law in the supreme court from the time of the actual entry of such judgment, and the chancellor may order execution thereon as in other cases.

Bill by Herbert W. Edmunds to enjoin Isaac Smith and others from the use of a closet on Smith's premises. A perpetual injunction was granted, and execution for costs ordered to be issued. Smith was released from liability for costs, and applies to vacate the order for execution and proceedings had thereon so far as certain lands conveyed him by his codefendants were concerned. nied.

Thos. E. French, for the motion. Edmunds, pro se.

De

Her. W.

GREEN, V. C. A bill was filed in this court by Herbert W. Edmunds against Isaac H. Smith, Benjamin Obekiah, and Hester Obekiah, his wife, to restrain them in the use of a closet on premises in the city of Cape May belonging to Isaac H. Smith, in the occupancy of the other defendants, on the ground that the same was a nuisance. A decree pro confesso was entered, testimony taken, and final decree, dated October 24, 1891, was entered October 27, 1891. This decree perpetually enjoined the defendants from the use of the closet as a sink, etc., and further orders "that the complainant recover against the defendants his costs and charges by him in this behalf sustained, and that an execution do issue therefor in accordance with the rules of this court." The costs were taxed on November 2, 1891, at $74.99. After some arrangement between Smith and the complainant, Smith paid him $25, and took from him this receipt: "Received, Cape May, N. J., August 22nd, 1892, of Isaac H. Smith, twenty-five dollars cash, in consideration of which I hereby release the said Smith from all liabilities and further payment of any sum or sums of money incurred for costs or otherwise in the suit in chancery heretofore existing between said Smith and myself. [Signed] Herbert W. Edmunds." The Obekiahs were the owners of a lot in another part of the city of Cape May at the time the decree was entered in the cause, which they conveyed to Isaac H. Smith by deed dated and acknowledged October 4, 1892, and recorded in Cape May county clerk's office October 5, 1892. On the 9th of October, 1892, this decree was docketed in the supreme court. July 25, 1893, a copy of the final decree and taxed costs was served on Benjamin Obekiah and his wife, and on the 7th of August, 1893, an order was made in the cause that a writ of fil. fa, issue to the sheriff of Cape May county directing him to make the amount of costs remaining due out of the goods and chattels, lands and tenements, of the defendants Benjamin Obekiah and Esther Obekiah, in pursuance of which a writ of fi. fa. was issued, directing the sheriff to make the amount, if necessary, out of the lands and real estate whereof Benjamin Obekiah and Esther Obekiah were seised on the 24th day of October, 1891. Isaac H. Smith, by petition, applies to vacate the order for execution, the execution, and proceedings had thereon, so far as he and the lands conveyed to him are concerned, and to restrain the sheriff from selling said lands by virtue of the execution, on the ground that the payment of $25 was a discharge of the costs; and, next, that at the time of the conveyance to him by the Obekiahs no decree had been docketed in the supreme court. When Smith made the payment to Edmunds of $25 he took from him the paper which is a receipt and release. It must be considered as fully expressing the contract of the parties. At the time it was given, Smith and

the Obekiahs were each of them liable to the complainant for the whole amount of costs. After payment by Smith of $25 to the complainant, the latter released Smith from all liability for costs. This release did not discharge Obekiah, nor Obekiah's property,

which was liable for the balance of the bill for costs. By the fifty-sixth section of the chancery act it is provided "that the decree of the court of chancery shall, from the time of its being signed, have the force, operation, and effect of a judgment at law in the supreme court, from the time of the actual entry of such judgment; and all decrees and orders of the court of chancery, whereby any sum of money shall be ordered to be paid by one person to another, shall have the force, operation, and effect of a judgment at law in the supreme court, from the time of the actual entry of such judgment, and the chancellor may order such execution thereon as in other cases." The final decree awarding costs and execution therefor to the complainant, the same being thereafter taxed, became by virtue of this provision a lien upon the lands of Smith and of the two Obekiahs on the 27th day of October, 1891, the time of the actual entry of such judgment. The release to Smith relieved his property from the effect of the decree, but left the property of the Obekiahs still subject thereto. If the Obekiahs had conveyed their property to any person other than Smith, such grantee would have been protected by the proviso of the fifty-sixth section of the chancery act, as follows: "That no decree of the court of chancery, hereafter to be made, shall, as against any person not a party thereto, become a lien upon or bind any lands, tenements, hereditaments, or real estate, other than those specifically mentioned and described in such decree, or in the bill of complaint on which the same is founded, until the parties interested in such decree, or some or one of them, shall have filed in the office of the clerk of the supreme court a statement or abstract of such decree, containing the names of all the parties thereto, designating particularly those against whom it is rendered," etc. But Isaac H. Smith was a party defendant to the suit, and this proviso does not in terms apply to him, and it would seem that an execution levied upon this property cannot be avoided by a conveyance made to him prior to the decree docketed. Rule discharged.

(52 N. J. E. 85)

STANTON MANUF'G CO. v. MCFARLAND. (Court of Chancery of New Jersey. Nov. 3, 1893.)

PATENT-PROCEEDING TO ENJOIN SALE.

Where on a preliminary hearing of an application to enjoin defendant from selling or incumbering a patent assigned to him, and claimed by plaintiff under a prior unrecorded assignment, it appears that complainant is entitled to equitable relief as against his assignor,

that defendant acknowledged to a person other than complainant that he had notice of complainant's claim, and that defendant, unless enjoined, can sell the patent to as many individuals as he can find as purchasers, which, if done, would work irreparable damage to complainant, a temporary injunction should be granted, though defendant makes affidavit resisting the application, denying that he ever had such notice.

Bill by the Stanton Manufacturing Company for an injunction to restrain William McFarland from selling or incumbering a patent alleged to belong to complainant. Injunction granted.

Frank S. Lowthorp, for complainant. James Buchanan, for defendant.

BIRD, V. C. The question in this case is not whether an injunction which has been issued shall be retained or not, but whether one shall be allowed. The order to show cause rested chiefly upon the allegation that the defendant, McFarland, had notice of the rights of the complainant before he took an assignment of the patent in question. The complainant's right, or what it claims to be a right, rests upon an assignment which antedates the assignment under which the defendant, McFarland, claims, but the former assignment was not recorded. Notwithstanding there was no such record, the complainant alleges that he (McFarland) acknowledged that he was aware of the title of the complainant before he took the assignment under which he claims a preference to the complainant. The defendant, upon the return of the order to show cause, comes with his answer, in which he positively denies the allegation of notice, and supports it by his affidavit.

Two questions are presented by the bill for consideration: First, does the complainant show an equitable right to the patent in question? and, second, has he made a case by his bill and proofs which the defendant has not, in this preliminary inquiry, fully met? or supposing, in the application of the ordinary rule in such cases, the defendant has by his answer and affidavit met the allega tions of the complainant's bill and the proofs annexed thereto, does there appear to be any reason why the ordinary rule which requires that the injunction should not go should not be applied in this case?

1. As to the rights of the complainant under his assignment, independently of the rights of the defendant, McFarland. I think, as the authorities now stand, they go far enough to justify me at this stage of the case in concluding that, if the allegations are sustained, the complainant would be entitled to relief upon final hearing, as between itself and Stanton.

2. The more important question at this inquiry is whether or not, as the pleadings and proofs now stand, an injunction ought to be allowed, restraining the defendant, Me Farland, from attempting to sell, assign, or

incumber the patent. The court, in such cases, is controlled by what is regarded as a sound discretion. It seems to be well established that, even though the answer and proofs negative the allegations of the bill, which are the foundation for a claim to an injunction, the court may nevertheless grant or continue the injunction until the final hearing. In the case of Chetwood v. Brittan, 2 N. J. Eq. 438, the chancellor used the following language: "This is a question which must always rest upon discretion, and yet that discretion should not be arbitrary, but yield to well-established rules. The equity may be answered, and yet the court will continue the injunction to the hearing, and especially so if a dissolution would work a greater injury than a continuance of the process." In speaking on this point in the case of Fleischman v. Young, 9 N. J. Eq. 620, Chancellor Williamson, after using language very similar to that above quoted, added that these principles should be applied, "but not in such slavish obedience to them as to defeat the ends of justice." See, also, Stotesbury v. Vail, 13 N. J. Eq. 390; Irick v. Black, 17 N. J. Eq. 200; Firmstone v. De Camp, Id. 316; Murray v. Elston, 23 N. J. Eq. 129. In this case the court said: "The answer denies, fully and explicitly, the equities of the bill.

Under the general rule in such cases, the injunction should be dissolved. But this rule is subject to exceptions, and does not necessarily prevail where, by continuing the injunction, the ends of justice will be better subserved. The motion to dissolve in such instances has been often denied by this court, in the exercise of its appropriate discretion, having regard to the circumstances of the case, and the effect which a dissolution would have upon the relative situation of the parties in the further prosecution of the suit." Van Syckle v. Rorback, 6 N. J. Eq. 234. In McKibbin v. Brown, 14 N. J. Eq. 13, one so cautious and learned as Chancellor Green said that, in cases of real doubt as to the equitable rights of the complainant, an injunction may be denied until final hearing, notwithstanding the denial in the answer. In Hilles v. Parrish, Id. 380, it was said that the granting and continuing of injunctions rests mainly on equitable grounds, and is not exercised for the mere purpose of protecting legal rights, irrespective of the claim of the parties to equitable relief. Manko v. Chambersburgh, 25 N. J. Eq. 168; Henwood v. Jarvis, 27 N. J. Eq. 247; French v. Snell, 29 N. J. Eq. 95; High, Inj. § 1467. The cases above referred to were decided upon motion to dissolve injunctions which had been granted. I have referred to them upon the belief that the same principles should control the court upon the application for the injunction, upon an order to show cause, when the answer of the defendant and affidavits are presented by way of resistance. This view is sustained by the case of Society v. Low, 17 N. J. Eq. 19. Therefore, it appear

ing that the complainant is entitled to equitable relief as against Stanton, and a party other than the complainant swearing that the defendant, McFarland, acknowledged to him that he had notice of the claim of the complainant, and it also appearing that the defendant has it in his power to make sale of the patent to as many different individuals as he could find as purchasers in all parts of the United States if he were not restrained from doing so, which, if done to any considerable extent, would certainly work irreparable mischief to the complainant, it seems to me that the rule stated in the above-named cases not only would justify me, but require me, to advise that the order to show cause be made absolute, notwithstanding the emphatic denial of the defendant, McFarland, of any notice in his answer and affidavit. If the defendant, McFarland, asks for a speedy hearing, the complainant will be required to proceed at an early day, or suffer the dissolution of the injunction.

Under chapter 180, vol. 15, Laws Del., the affidavit to be filed, upon which a writ of capias ad respondendum is issued, must state that the defendant is about to abscond from the place of his usual abode, or must set forth the fraudulent transaction of the defendant in disposing of his property with intent to defraud his creditors. It is not sufficient to state that the defendant procured property by fraud. (Syllabus by the Court.)

Action on the case by Frank H. Thomas against John S. Colvin. Defendant, having been arrested on a writ of capias ad respondendum, moves to quash the writ on the ground that the affidavit on which it issued is insufficient. Motion granted.

John D. Hawkins, for plaintiff. R. R. Kenney, for defendant.

LORE, C. J. Gentlemen: In the case of Frank H. Thomas v. John S. Colvin, (No. 43, to October term, 1893,) being a capias case, a capias ad respondendum was issued, and the defendant gave bail for his appearance to this term of court. An affidavit was filed under our statute, and the motion is now made to quash the writ on the ground, as we understand it, of the insufficiency of the affidavit. You will observe that the statute says this: "That hereafter, no writ of capias ad respondendum shall be issued against any citizen of this state, in any civil action unless the plaintiff therein, or if there be more than one, some one or more of the plaintiffs, shall have made a written affidavit, and filed the same in the office of the prothonotary of the superior court of the county out of which the writ is to issue, stating that to the best of