for the association to exercise the power, [3] A delinquent borrower against whom a which it possessed up to that time, to formally declare the principal of the mortgage due. The condition thus arising from the insolvency and suspension of business was one which the contractual relations of the parties did not directly anticipate or provide for, and this mortgage, like all other similar mortgages held by the association, whether the mortgagors were behind in the payments or not, was matured by force of the unconventional conditions which thus arise. default has been declared, and one similarly delinquent against whom no default has been declared, occupy much the same position so far as their rights are concerned. The association may, at will, reinstate the one or continue to extend indulgence to the other. These possible privileges of a delinquent borrower are lost by the suspension of business. While defendant's mortgage was not technically due by its terms at the date of suspension of business, I am unable to conclude that that fact can be appropriately deemed operative to create an equity in his behalf which will entitle him to a return of the premiums by him paid. It also appears that the present defendant mortgagor was a defendant in the case already referred to, and in that case, as stated, stipulated that the association had exercised its option to declare the mortgage now in question due. With that issuable fact regularly adjudicated in the case referred to, I think defendant cannot be permitted in this case to assert that the association had not so exercised its option. [2] At the time I signed the decree in Re State Mutual Building & Loan Association, supra, I was impressed that conditions of this nature gave rise to equitable considerations in behalf of a delinquent mortgagor which should be operative to entitle him to a credit for the premiums paid. But a present consideration of the equity suggested, in the light of the decision of the Court of Errors and Appeals already referred to, leads me to the conclusion that defendant cannot, upon sound equitable principles, be given the status of a nondefaulting mortgagor, who has lost his right to the benefits of the consummation of the building association scheme solely by reason of the insolvency of the association. At the time of the suspension of business defendant had broken the stipulation of his contract, and his privilege to continue to enjoy the benefits of the building association scheme was wholly dependent upon the sufferance of the association. He had no legal right to demand the continuance of that sufferance. While technically the mortgage debt was not collectible unless or (Chancery Court of New Jersey. Feb. 3, 1910.) until the association should cease extending such sufferance-that is, should treat the mortgage debt as due the substance of the situation was that the suspension of business did no more than to render it impossible for the association to continue to extend to defendant favors which the association was under no contractual obligation to extend and which defendant had no contractual right to demand. It is not even claimed that at the time of suspension of business of the association defendant entertained a purpose to presently remove himself from the delinquent class. The loss by defendant of the mere possibility of these continued favors upon the part of the association cannot be appropriately regarded as the loss of a substantial right, and cannot be properly classed with the loss of a nondefaulting Borrower, who has been denied important contractual rights of a substantial nature solely by reason of a failure of the general scheme. The loss which the latter suffers by reason of the suspension of business is that of a substantial and valuable contractual right; the loss complained of by defendant in this case is the loss of the privilege of future indulgence upon the part of the association. Such indulgences defendant could reasonably hope for, but could not require. I am also satisfied that the master's report of the amount due is correctly stated in all other particulars. I will advise an order overruling the exceptions to the master's report. ADAMS v. ADAMS. (77 N. J. E. 123) (Syllabus by the Court.) 1. EQUITY (§ 454*)-BILL OF REVIEW-PERMISSION OF COURT. Upon a petition for leave to file a bill of review in a suit for alimony under the divorce act, setting forth, among other things, that the final decree theretofore entered therein (upwards of three years before the filing of such petition) was void upon its face, for the reason that it discloses that it was entered upon and wholly by reason of a stipulation made in open court, and not upon the testimony of witnesses examined in the cause, held (1) that, if such decree is void upon its face, no leave of court is necessary to file a bill of review; and (2) that such contention cannot be sustained. [Ed. Note. For other cases, see Equity, Cent. Dig. § 1110; Dec. Dig. § 454.*] 2. HUSBAND AND WIFE (§ 299*)-SUIT FOR ALIMONY-DECREE. Such decree is not in any sense a decree for divorce, but is merely a money decree, authorized by the statute in any case where a husband abandons his wife, or separates himself from her, and refuses and neglects to maintain and provide for her. [Ed. Note. For other cases, see Husband and Wife. Cent. Dig. §§ 1094-1097; Dec. Dig. § 299.*] 3. EQUITY (§ 416*) -CONSENT DECREE-SUIT FOR ALIMONY. When in such case a defendant, in open court, consents to the entering of a decree for the payment of alimony, he confesses the truth of the averments of the bill, and the decree will Ulysses G. Styron, for petitioner. Gaskill that the final decree be opened and petition& Gaskill, opposed. be supported to whatever extent it is justified by the averments of the bill. [Ed. Note. For other cases, see Equity, Cent. Dig. § 945; Dec. Dig. § 416.*] 4. EQUITY (§§ 452, 454*)-BILL OF REVIEWLEAVE OF COURT. Leave of the court to file a bill of review is necessary only when new evidence has been discovered, and none being suggested, in the absence thereof, a bill of review, unless it attacks a decree as void on its face, must be filed with in the period for taking appeals from final de The present petition, alleging that the defendant is unable at the time of the filing thereof to pay the amount which the decree requires, will be entertained as a petition for a modification of the decree. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1096; Dec. Dig. § 299.*] 6. HUSBAND AND WIFE (§ 299*) - SUIT FOR ALIMONY - BILL TO REVIEW - PAYMENT OF ARREARS. A countermotion being made by the complainant for the enforcement of the decree in respect of alimony in arrears under the decree, bringing such petition to a hearing will only be allowed upon the terms of payment by the petitioner of all such arrearages, in default of which proceedings for contempt will be taken. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1096; Dec. Dig. § 299.*] Bill for alimony by Mary C. Adams against Alfred Adams, Jr. Decree for complainant, and defendant petitions for leave to file bill of review. Petition allowed, on payment by defendant of all alimony due under the decree of divorce. the suit came on regularly for hearing before Vice Chancellor Grey, September 19, 1905, and a decree for alimony was on that day advised, in which it was decreed that the complainant was entitled to alimony to be paid by defendant to the amount of $2,500 per year, and in which the defendant was directed to pay that sum in quarterly installments, in advance, and to give bond for the faithful performance of the decree. On March 31, 1909, a petition was presented in behalf of defendant for leave for defendant to file a bill of review to open the deCree above referred to, and to permit him to defend the original suit on its merits. That petition sets forth that the decree above referred to was entered without proofs being taken in support of the bill, but upon a stipulation made in open court and consented to by the solicitors of the respective parties, and further sets forth that the defendant was induced to consent to the decree in the hope that, by avoiding the publicity incident to a trial, he could subsequently induce complainant to return to him and resume her marital relations with him. The petition further sets forth that, since the entry of the final decree above referred to, defendant has made repeated efforts to induce complainant to resume her marital relations with him, but without success; that all payments provided for in the decree have been made; that defendant's resources have become so much reduced that he is unable longer to comply with the terms of the decree. The petition also reiterates the charges against complainant which were contained in defendant's original answer, and prays that leave be granted to defendant to exhibit a bill of review, and LEAMING, V. C. November 11, 1904, complainant filed a bill against defendant for alimony under the then 20th (now 26th) section of the divorce act (P. L. 1907, p. 482). The bill sets forth, in addition to the refusal of the defendant to provide for complainant, a series of acts of physical violence upon the part of defendant which compelled complainant to leave defendant's home for her personal safety, and also sets forth, in further justification of her conduct in leaving her husband's home, instances of criminal conduct on the part of defendant with women, and especially with one Minnie L. McLarren, who, the bill avers, had recently given birth to a child which had been begotten by defendant, and which defendant had threatened to bring to his home and adopt, and compel complainant to care for. The answer filed by defendant denies the several averments of the bill touching his wrongful conduct, and charges complainant with improper conduct with other men, especially with one Morrow. A replication was filed by complainant, and er let in to defend said suit on its merits, and to allege in said defense his changed financial condition, and alsó prays that the part of the decree providing for the payment of alimony be vacated, upon the continued refusal of complainant to return to petitioner's home, and for general relief. Complainant's answer to this petition denies the averments of improper conduct on her part, and denies any changed financial condition upon the part of defendant, and points out that the charges made by defendant in said petition are the same as those which were made in the answer filed by him prior to the entry of the decree, and also points out that the time has elapsed within which the decree can be opened by a bill of review, and also sets forth that in 1907 a similar application was made to vacate the decree, and to reduce the amount of alimony, and that that application was denied. The petition and answer are both accompanied by sundry affidavits of verification. [1-4] Defendant now urges in support of his present application that the decree is void on its face, for the reason that it discloses that it was entered upon and wholly in open court, and not upon testimony of witnesses examined in the cause. In answer to that contention it may be said that, if the decree is void upon its face, no leave of court is necessary to file a bill of review. The contention, however, if considered, cannot be sustained. The decree is not in any sense a decree for divorce, but is purely a money decree, authorized by the statute in any case where a husband abandons his wife, or separates himself from her, and refuses and neglects to maintain and provide for her. When, in such case, a defendant in open court consents to the entry of a decree for the payment of alimony, he confesses the truth of the averments of the bill, and the decree will be supported to whatever extent it is justified by the averments of the bill. Leave of court to file a bill of review is necessary only when new evidence has been discovered. No new evidence is suggested. In the absence of new evidence, a bill of review, unless it attacks a decree as void on its face, must be filed with in the period for appeals from final decrees. I am, therefore, unable to discern any theory upon which leave to a bill of review is either necessary or proper. by reason of a stipulation which was made script of the proceedings to be made by the sufficient to say that, if complainant left de- | Appeal from Court of Chancery. Decree there Another circumstance should, however, be considered. If the decree now attacked can be regarded as void, because unsupported by testimony taken at the hearing, that defect is cured by subsequent proceedings which have been taken, which proceedings are fully set forth in the answer and affidavits the complainant has filed in response to the present petition. If necessary, an order may be made at any time amending the decree by reason of the matters which have since transpired in the same cause. The subsequent proceedings here referred to consisted of a petition, similar to the present petition, filed in behalf of defendant April 15, 1907, wherein it was set forth that the decree herein referred to was entered by virtue of a stipulation, and not upon testimony, and that defendant was constrained to consent to the decree in the hope of securing, in that manner, a reconciliation with complainant. The petition asserted that the averments of the answer which was filed to the bill were true. It also set forth that since the making of the decree defendant had demeaned himself in a proper manner, and had sought the return of complainant, and that it was the duty of complainant to return to him. It also set forth that the defendant had, since the date of the decree, sustained heavy financial losses, and that, if the decree should not be set aside, the amount of alimony should be reduced. An answer was filed to that petition, and the matter came on for hearing before me upon the testimony of witnesses, who were examined in open court September 10, 1907. In order that I should not be compelled to depend upon my memory touching the scope stenographer who reported the case, which transcript I now have before me. At that hearing it became entirely apparent from the testimony that the charges made by complainant in her original bill, to the effect that defendant had maintained criminal relations with Minnie McLarren, and that a child was born as the result of such criminal relations shortly before complainant left defendant's home, were true. It also appeared that since the decree for alimony defendant had adopted that child and taken the child to his home. The demeanor of defendant on the witness stand, while under cross-examination touching these charges, clearly disclosed his guilt, notwithstanding repeated denials made by him. Finally, however, he tacitly admitted their truth as follows: "Q. You believed it was your own child, didn't you, Mr. Adams? "A. I don't think I can answer that question very such a complicated affair, I would have to say no. "Q. You mean that this woman had so many admirers that you would not be able to tell whether you or somebody else was the father? "A. I have heard of her having three or four husbands. I really think that she is a married lady. Of course, I don't know her ins and outs. It is difficult to state facts when you are not posted on the matter." George W. Jackson also testified to statements of defendant, in which defendant admitted his illicit relations with a woman, and defendant did not deny the truth of Mr. Jackson's testimony. On the testimony adduced at that hearing, I refused to vacate or modify the decree, and advised an order to that effect. I will, at this time, deny the application of defendant for leave to file a bill of review for the reasons stated. [5] It is, however, entirely clear that a decree for alimony is at all times subject to the control of the court. The section of the statute under which the present decree was made, as well as the corresponding section of the present act, provides that the decree "may be made for such time as the nature of the case and the circumstances of the parties render suitable and proper in the opinion of the court," and for the court "from time to time to make such further orders touching the same as shall be just and equitable." In this view, I think the present petition should be entertained as a petition for a modification of the decree. The petition asserts that defendant is at this time unable to pay the amount of alimony which the decree requires. On that claim defendant is entitled to be heard, and the present petition may be brought on for hearing for that purpose. As to the claim of defendant that complainant should be denied further alimony by reason of her refusal to resume matri fendant's home on account of his adultery, she cannot be required to condone that offense, and I do not think it proper for this court in this case again to review that question. [6] The present petition was filed one day before an installment of alimony was due, and no payments have been made since that time. A countermotion is now made by complainant for the enforcement of the de cree by proceedings for contempt. The privilege of defendant to bring on his petition to hearing can only be allowed by the payment by him of all alimony which is due under the terms of the decree. Unless that payment is at once made, the necessary proceedings for contempt will be taken. BRINDSE v. ATLANTIC CITY POLICEMEN'S BENEFICIAL ASS'N. (Court of Errors and Appeals of New Jersey. June 20, 1910.) Appeal from Court of Chancery. Decree there advised by Vice Chancellor Leaming. 75 N. J. Eq. 405, 72 Atl. 435. Eli H. Chandler, for appellant. Clarence L. Cole, for respondent. For affirmance-The CHIEF JUSTICE and GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, and CONGDON, JJ. For reversal-None. (Court CAVAGNARO v. JOHNSON et al. of Errors and Appeals of New Jersey. June 20, 1910.) Appeal from Court of Chancery. Decree there advised by Vice Chancellor Garrison, whose opinion is reported in 74 N. J. Eq. 589, 70 Atl. 995. Robert L. Lawrence, for appellant. Wendell J. Wright, for respondents. For affirmance-The CHIEF JUSTICE and GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, DILL, and CONGDON, JJ. For reversal None. KELSEY v. DILKS et al. (Court of Errors advised by Vice Chancellor Leaming, whose DENBURGH, VROOM, GRAY, DILL, and ΚΟΗΝ «. KELLY et al. (Court of Errors and Appeals of New Jersey. June 20, 1910.) Appeal from Court of Chancery. Decree there advised by Vice Chancellor Leaming, whose opinion is reported in 76 N. J. Eq. 132, 79 Atl. 419.. George A. Bourgeois, for appellants. Lewis Starr, for respondent. For affirmanceThe CHIEF JUSTICE and GARRISON, SWAYZE, TRENCHARD, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, DILL, and CONGDON, JJ. For reversal-PARKER and BERGEN, JJ. MCMASTER v. DREW et al. (Court of Errors and Appeals of New Jersey. June 20, 1910.) Appeal from Court of Chancery. De cree there advised by Advisory Master Pitney. 68 Atl. 771. James P. Northrop, for appellants. Norman Grey, for respondent. For affirmanceThe CHIEF JUSTICE and GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, DILL, and CONGDON, JJ. For reversal-None. ΜΟΤΖ ν. ΜOTZ. (Court of Errors and Appeals of New Jersey. Feb. 28, 1910.) Appeal. from Court of Chancery. Decree there advised by Vice Chancellor Stevens. Frank E. Bradner, for appellant. Nathan Kussy and Theodore D. Gottlieb, for respondent. PER CURIAM. The decree appealed from. is affirmed, for the reasons stated in the opinion filed by Vice Chancellor Stevens in the court below. The CHIEF JUSTICE and GARRISON, SWAYZE, REED, TRENCHARD, PARKER, In re WILLIAMS. (Court of Chancery of New Jersey. July 19, 1911.) Memorandum on application to settle the decree. For former opinion, see 77 Atl. 350. This HOWELL, V. C. The proofs in this case were opened for the purpose of giving the respondent an opportunity to lay before the court a more particular statement of her income and the sources thereof. Further evidence was taken, and the same has been submitted to the court, with fresh arguments on the whole case. new evidence has not changed my conclusions with regard to the point on which the case was decided at the first hearing. I still think that the resources of the respondent and those of her husband also are too precarious and uncertain to justify this court in leaving the Williams boy in her custody, with the added likelihood of his adoption. Mr. and Mrs. Murray happen at the present to be in receipt of an income of perhaps $7,500 to $8,000. This, under ordinary circumstances, would be sufficient to justify the court in leaving the child in Mrs. Murray's custody. This income, however, isderived, not from investment of funds, but is a sort of hand to mouth income derived from the exploitation of new views of psychotherapy, Mrs. Murray. There seems to be no solid foundation for it, and no certainty that it will last. The respondent is therefore conducting a private charity, which appears to me to be in danger of being overloaded at the first approach of adverse fortune. It may be doubted whether this charity is of such a nature as places it under the visitatorial jurisdiction of the Attorney General. This officer may institute suits for the correction of abuses in public charities. There does not appear to be any case in which the court has acted upon a charity of this nature. Public charities are such as the court can see to the execution of; but how can this private charity of Mrs. Murray's be controlled or carried into execution, and in case of a collapse of the enterprise, who will be sufficiently interested to look after the welfare of the children who might thus be thrown upon the world with out guardianship? The situation of the petitioner is entirely different. It is a public charity, and is subject to state supervision. It has a foundation, with an organization of people devoted to its interests and to the promotion of the welfare of the inmates. Besides, it has been specially charged with the care and keeping and the nurturing and the oversight of the particular infant in question. I advise an order directing the delivery of the child to the petitioner. ant; that the contract was duly placed on file; and that thereafter, while money was in Ludy's hands due under the contract to Larsen & Son, sundry claimants served notices upon Ludy under section 3 of the me chanic's lien law (P. L. 1898, p. 538). Ludy filed his bill of interpleader, and paid into the Court of Chancery the sum of $2,314.15 as the amount remaining in his hands owing upon the Larsen contract and payable to the stop notice claimants. A decree was made in due course requiring the defendants to interplead, and after the hearing a decree was made establishing all the claims with the exception of that of Maginnis. Besides disallowing his claim, the decree settled the order of priority of the other claims, with the result that so much of the fund as would have gone to satisfy the Maginnis claim, if established, was awarded to the Atlantic City Lumber Company, the next claimant in order. One ground upon which the Maginnis claim was disallowed was failure to prove the fact or date of service of the Maginnis stop notice upon Ludy. Upon this point (Court of Errors and Appeals of New Jersey. Ludy's bill of complaint, after setting forth (78 N. J. E. 237) LUDY v. LARSEN et al. March 6, 1911.) (Syllabus by the Court.) JUDGMENT (§ 675*)-RES JUDICATA-PARTIES BOUND. Successive stop notices having been served upon the owner of a building under section 3 of the mechanic's lien law (P. L. 1898, p. 538). and one of the stop notice claimants having commenced suit against the contractors to establish his claim, a subsequent claimant, who had an interest in defeating the claim in suit, undertook and conducted the defense in the name of the contractors and with their consent, but for its own use and benefit: Held, that the party thus undertaking and managing the defense to that on or about March 14, 1905, one B. served, or caused to be served, upon the complainant a written notice to the effect that the contractors were indebted to B. in the sum of $220 for work and labor done and performed and materials furnished in and about the premises of the complainant, that payment of said sum had been demanded of the contractors and payment refused, and that complainant was notified and required to retain the amount of money so due and claimed by B. out of the money owing by the complainant to the contractors, proceed the suit was concluded by the resulting judged to set forth "that on or about the twelfth ment so far as it established the claim of the plaintiff against the contractors. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 675.*] Appeal from Court of Chancery. Bill by Robert B. Ludy against John M. Larsen and others. From a decree made disallowing the claim of one Maginnis, Rufus Booye appeals. Reversed and remanded. See, also, 73 Atl. 516. Bourgeois & Sooy, for appellant. John C. Reed and U. G. Styron, for respondent Atlantic City Lumber Co. PITNEY, Ch. This is an appeal from a day of May of said year a like notice was served by John W. R. Maginnis, claiming the sum of $619." The bill of complaint also sets forth that a few days later a like notice was served by the Atlantic City Lumber Company claiming the sum of $4,400, and that the lumber company had notified the complainant not to pay any persons claiming the fund who had served notices prior to the notice of the lumber company upon the ground that the amounts claimed by them were in excess of the true amounts due. To this bill the Atlantic City Lumber Company filed a cross-bill, setting up, among other things, "that this defendant is inform decree made in an interpleader suit, where-ed and believes that one John W. R. Magin by the fund in court was disposed of. The ground of the appeal is that the claim of one John W. R. Maginnis (assigned to Rufus Booye, the appellant) was disallowed. It appears that the complainant, Ludy, entered into a contract with the firm of Larsen & Son, whereby they agreed to furnish the materials and do the work of altering and adding to a building owned by the complain nis on or about May 12, 1905, served, or caused to be served, upon said complainant a notice purporting to be under the authority and in conformity with the provisions of said section of said act, and by virtue of said notice claims to have a lien upon said fund and to be entitled to receive thereout the sum of $619 alleged to be due to him and to have been demanded from the |