ing adultery was not to be credited, because of its improbability.

The testimony offered in this case by the petitioner in support of the charges is inferential or circumstantial, and positive. There has undoubtedly been perjury, either on the one side or the other. The problem is, which witnesses are to be believed? As bearing on this question, each of the parties has a deep personal interest in success; to the wife, not only her means of livelihood, but her reputation and the custody of her little girl, are at stake. The husband is now under the obligation, imposed upon him by the decree, of paying a large amount of alimony, with no probable prospect of future reconciliation with his wife. His conduct with reference to the case is such, if the testimony is to be believed, as to cast a shadow of discredit on the testimony of some of the witnesses produced by him. William Van Welden, who occupied the upper floors of the house of which the defendant occupied the lower floors, swears that the petitioner told him that he would give him, Van Welden, $1,000 if he would swear that he had seen defendant in bed with another man. And Jane De Burke, who did washing for the defendant, swears that the petitioner told her, if she would testify for him as he wanted her to do, she would never see a poor day again. It is but fair to the petitioner to say that he denies these charges; but these parties are entirely disinterested, and there would seem to be no reason for them to commit willful perjury. In the first place, we have testimony from the persons living in the neighborhood that in the year 1892 Oakley Wood was a frequent visitor at defendant's house, and that these visits were made at all times of the day and evening, continuing until late at night; with the inference, derived from the fact that he was seen to leave there early in the morning, that on some occasions he had remained all night. There is testimony that Michael J. Hickey, who is a Catholic priest, and Joseph Sullivan, paid visits to the house in the same summer, and remained over night. The defendant does not deny that these three men visited her house, and remained all night on two or three occasions, but claims that they were accommodated in a manner entirely consistent with propriety and innocence, and in this statement they corroborate her. The only testimony of the neighbors sufficient to even raise a suspicion against the defendant is, as some of them say, that on one or more occasions, late at night or early in the morning, Oakley Wood, on going to the house or leaving it, instead of walking boldly and fearlessly, as if innocent of wrongdoing, appeared to crouch along the fence and sneak either in or out. It is a little difficult to understand what motive he could have had in so doing. As I understand the testimony, there was no house on Hamilton avenue, on which this one fronts, between it and Monroe street, and at

the intersection of these streets a large electric arc lamp was placed, which was always burning at night, and the neighborhood therefore must have been sufficiently lighted for one person to have seen another in almost any position. But while such testimony may be sufficient to convince one that Wood had some improper motive in his visit to the house, it does not necessarily implicate the defendant. It appears by the testimony of Annie Matthews that during all this time the defendant had a female friend-a young woman, who, from all accounts, was quite attractive-who made her home with her, with the exception that she occasionally went to her own parents' residence to obtain clothesand it appears that not only Oakley Wood, but others, were quite attentive to her. It is the rule that where the conduct of a defendant who is a party to a divorce case admits of two interpretations, equally consistent with probability, one involving the guilt of the defendant, and the other consistent with innocence, the courts will always adopt that which favors innocence. Whitenack's Case, 36 N. J. Eq. 474, at 477. Applying the reason of that rule to these circumstances, we are not justified in assuming that the defendant was the object of any improper motive which may have induced Wood to act in the way which these parties testify he did. There is no dispute on the part of the defendant that Mr. Wood was a frequent visitor at the house. She had her friend as her constant companion. In an unfortunate collision of a railroad train with a sleigh, this young woman was killed, and the defendant is deprived of her testimony. There is no doubt that defendant had many other friends,. and that they visited her house, and frequently indulged in music, dancing, and gaiety. We might be justified in saying that the testimony of the neighbors shows that the defendant was imprudent and foolish in having or permitting these entertainments at her house,-that, being separated from her husband, she was naturally the object of attention, and that it would have been wise for her to have avoided these things which would naturally cause remark and criticism; but I do not think this part of the testimony warrants any harsher judgment than that she was indiscreet.

The next class of testimony is that of a detective employed by the petitioner to furnish him evidence of his wife's guilt. This witness is named Demarest. He commenced his espionage, under the direction of the petitioner, on January 23, 1892, having his attention directed by the petitioner to watching Van Welden, who, as before stated, occupied the two upper stories of the house in which the defendant lived. I do not think it necessary to analyze the testimony of this witness. His cross-examination demonstrated that he was unreliable, and the testimony of two ladies who contradicted him as to Wood's having brought the defendant

home from a ball at 5 o'clock, and returned to the house after getting rid of a male companion, the only really important testimony he gave, shows him to be unworthy of belief.

We come next to the positive evidence, and first it is that of a young girl, a niece of the petitioner, named Annie Matthews. She testifies to occurrences which, if true, leave no doubt of the defendant's guilt with all three of the persons charged. Is she to be believed? The defendant, as stated, did not lead the life of a recluse. She erred. if at all, in the other direction. Her house was

the scene of gaiety several times in every week. Those who visited her on these occasions, and partook of her hospitality and joined in the hilarity, must have been known to the petitioner. He certainly had the means of ascertaining who they were through his niece, who was an inmate of the house. This girl was taken in by the defendant in the latter part of March, 1892, knowing that she was a relative of her husband. This was just before the termination of the former suit. She told Mrs. Brashaw she was there to watch defendant; yet, outside of this girl, Matthews, and one Simons, whose veracity we will consider hereafter, we have no one to testify to a single improper action, any indecent conversation, any acts of undue familiarity on the part of the defendant with Wood or Hickey or Sullivan, or any one who gives any evidence tending to show want of virtue or inclination to lust. Mrs. Simons, who after August, 1892, regarded defendant in any other than a friendly light, gave the following testimony: "Q. But you have been quite friendly and intimate with Mrs. O'Brien all along? A. I have. Very much so. Q. And you used to go to the house and participate in various entertainments at her house? A. Yes, sir; and we had very pleasant times there. Q. And when Oakley Wood and Father Hickey or Mr. Sullivan was there, you visited them, and had these pleasant times there? A. Yes, sir. Occasionally we met these people there. Q. At any time you were there, and when they were there, did you ever see any unseemly conduct on the part of anybody there present? A. Never in my life. Q. You had singing at these entertainments? A. Yes, sir. Q. And you had Q. And you had dancing there? A. Yes, sir. Q. Did you ever see anything of an improper character or unseemly conduct on any of these occasions? A. No, sir. I never seen anything in the house out of the way in my life; never. Q. You have been there until one or two o'clock in the morning, haven't you? A. Yes. sir; as late as three o'clock in the morning. Q. And Oakley Wood was there also? Yes, sir. Q. And you had sometimes refreshments there,-eating and drinking? A. Yes, sir, but nothing more than you would have in your own house. Q. And they did not disgrace themselves by their talk or their acts in any way whatever? A. No, sir. Q. I suppose that you had been there in July,

A.

before this trouble occurred between your husband and yourself? A. Yes, sir. I had been there about two weeks previously. Q. And you were there about every night, were you not? A. Well, no, sir. Not so often as that; two or three times a week, perhaps,-every other night or so." And again: "Q. Did you ever see anything in their conduct,-that is, between Oakley Wood and Mrs. O'Brien,-of an improper character, or anything of an unseemly character? A. Nothing whatever. Q. Did you ever see any familiarities between them of an improper character? A. No, sir. Nothing but what you might expect among friends. Q. He is only a young fellow of eighteen or nineteen years of age, is he not? A. Yes, sir; about that. Q. And Mrs. O'Brien is a woman of forty or so, is she not? A. I do not know her age, but I never saw anything whatever of an improper character between them. I never saw any familiarity or anything between them that would not be proper between friends." Annie Matthews would have us believe that this woman, who, as before suggested, is not shown by any other testimony but hers and Simons' to have done an unchaste act, or uttered an immodest word, or given evidence of libidinous inclination, was on several occasions guilty of brazen and promiscuous lechery, so open and shameless that we would expect no one but the most abandoned and wanton strumpet to be guilty of it. She is not satisfied with putting her in flagrante delicto with a paramour, but, on all but one or two occasions to which she testifies, accuses her of being in bed with a man and her female friend, all without clothing; and, as if they desired that it should not escape her notice, on each one of these occasions, she says, they opened the doors and lighted the lamps. This is a secret crime; it is the indulgence of a passion which seeks no extra company in its gratification, and naturally shuns publicity. This girl swears to too much. Again, not only is her testimony as to the incriminating occasions denied, under oath, by the defendant and Wood, Hickey, and Sullivan, respectively, but she contradicts herself, not only in minor details, but, having twice sworn that she discovered defendant, defendant's female friend, and Wood in bed together, on cross-examination says she never saw them so. She is also contradicted by Mrs. Brashaw as to money sent her by her uncle, the petitioner, and as to having said he sent her there to watch his wife; also by Mrs. Simons that she met her on the ferryboat in New York, and went with her to Mr. Gourley's office. These are not immaterial incidents, about which she might have been innocently mistaken. I cannot regard her inaccuracy with reference to them as indicative of anything short of a disregard of truth. Besides, this defendant, if she was ever so much inclined to lustful indulgence, had every incentive not to expose herself. She was dependent for home

and support on the allowance made to her by this court; its continuance was dependent upon her fidelity to her marriage vows; she knew her husband was more than anxious for a divorce; she knew the eyes of the neighborhood were on her; she knew she was surrounded by those who were friendly to her husband, and unfriendly to her; she knew that this servant girl, his niece, was in communication with him; she had on one occasion surprised them together in the house on her return from New York; she knew the girl was in his pay, for she had seen the letter with the money in it. It is inconceivab'e that under these circumstances she would have, before the very eyes of her watcher, thus openly and recklessly disregarded every duty of decency and of virtue. She denies it under oath, and in this denial she is joined by the three men implicated, one of whom is a Catholic priest; and, although it is suggested that he is under a cloud of some kind in his church relations, it is impossible to believe that, even if his moral sense was so blighted as not to restrain him from the indulgence of a criminal lust, he would have advertised it to the world by committing the sin in the very presence of a member of his church.

We come next to the charge at the Mountain House, at the Delaware Water Gap. The positive evidence on this charge is that of a man named William B. Simons. According to his testimony, the defendant and Oakley Wood occupied the same room and bed at this hotel on two consecutive nights in August, 1892. Both the defendant and Wood deny it when examined as witnesses. Is Simons to be believed? Is his testimony, when tested by the rules, entitled to credit? It appears that Simons, Wood, the defendant, and her female companion, before referred to, were all at this hotel on the 20th and 21st of August, 1892. That it was a prearranged visit on the part of Wood and the two women I do not think there can be any doubt. The two women were away on a visit at some other place, and on Saturday, the 20th, went to the Water Gap by the Delaware, Lackawanna & Western Railroad, and went to the hotel called the Mountain House about 4 o'clock in the afternoon. They there engaged two rooms. Wood, having procured a pass for two on the N. Y., S. & W. Railroad, got Simons to accompany him, and on the 20th of said month they went to the Water Gap, and were met at the depot, about 9 o'clock in the evening, by the two women. They all went to the hotel, and occupied the two rooms which had been previously engaged. The defendant and Wood say that Mrs. O'Brien and her female friend occupied room No. 7, and that Wood and Simons occupied the adjoining room, No. 5. It is agreed by all that the rooms were communicating. Simons says that the defendant and Wood occupied room No. 7, and on cross-examination at first refused to an

swer the question who occupied the room. No. 5 with him, on the ground that it would criminate him. On this statement he was excused by the court from answering, but, having afterwards testified that nothing improper or criminal, which could incriminate him, had taken place in that room, he was directed by the court to answer the question, which was repeated, and then stated that he and defendant's female friend had occupied that room and bed on those twonights. It appears by the testimony of his wife that his attentions to this young woman had been so marked as to cause her great uneasiness, and had led her to remonstratewith him, in the hope of breaking up the intimacy, but that her efforts were unavailing, and he had continued the intimacy, and told her that he loved the girl. Such devotion on the part of a married man could have only one object, and that not a proper one. Now, this man would have us believe that, having, for some time at least, persistently pursued. his purpose, and having at last overcome all scruples, and secured the favorable opportunity, he refused to gratify his passion, not from a sudden impulse of virtue, but that for two consecutive nights he voluntarily and without a lapse subjected his chastity to the temptation of a situation. which St. Anthony may have withstood, but from which Joseph fled, as too trying for even his morality. I simply do not believe him; and, if he has been false in this, his tainted oath ought not to outweigh the testimony of the other two parties, interested though they are. While the conduct of Mr. and Mrs. Simons may not be sufficient of itself to establish a conspiracy on their part with Thomas O'Brien to convict his wife of adultery, I confess I have not been able to account for much of it on the plain. common-sense principles which govern ordinary persons in their everyday actions. There is other testimony with reference to this incident, and I confess it is a branch of the testimony that has given me the most serious trouble in the examination of the case. The driver of the hotel coach, whom the two women saw at the depot on the afternoon of their arrival, says that the defendant asked him whether she and her friend might go to the hotel and wait there until the evening train, on which they expected their husbands to come. Edward Hauser, the proprietor of the hotel, testifies that when the two women came in the afternoon they told him they wanted two rooms; that they were expecting their husbands on. the next train; that he asked them to register, and they said they would wait until' their husbands came to register; that this was told him by the defendant. When the party arrived in the evening, Simons went to the register, and wrote therein, "William. McKeever, Paterson, New Jersey"; and, on. Woods' attention being called, he went and registered the name, "Jack Gregory, Jersey

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City." Afterwards, on their attention being called to it by the landlord, the entry was made at the end of each name of "and wife." This was not done in the presence of the defendant, and there is no evidence that at this time, or at any other, did the defendant see this register. Simons says that the defendant told him, as they were going into the hotel, to register as "McKeever"; but she denies it. The testimony of those two witnesses was given in June, 1893; the occurrence to which they testify happened on the 20th of August, 1892. Its importance all turns on the use of the word "husband," for, if defendant said they expected two friends upon the train, it amounts to little or nothing. Neither the driver nor the landlord gave any reason why the use of the word "husband" should have been so indelibly impressed upon his memory. was certainly not an unusual thing for a husband to join his wife on a Saturday afternoon; and Mr. Hauser, on being pressed by defendant's counsel, weakens his testimony a little in this statement: "Q. Didn't she say two friends, or two gentlemen? A. She said they expected their husbands on the next train. Q. When they wanted the carriage to go to the depot, she spoke of going for the gentlemen, didn't she? A. Well, in engaging the carriage I do not remember just the words she used. Q. You used that expression a while ago. You would not notice this expression, but you inferred from what you saw on the register that they were their husbands? A. Well, generally supposing, and seeing that writing there, I should judge that they were married, when I saw that, of course. Q. Seeing that writing, you judged that they were going for their husbands; that is the way you got at it? A. Yes, sir. Q. And you do not remember the expression she used when she ordered the carriage? A. No, sir." And Schumacker, the driver, gives this testimony: "Q. You have seen on the directory that they were regiscered man and wife, and you supposed that they were their husbands? A. Yes, sir. Q. And when they spoke of two men coming you supposed that they meant it as their husbands, whether they were or not? A. I supposed so." But, when he is asked: "Q. Didn't they say two friends were coming?" he says: "No, sir. They said their two husbands." It is not to be overlooked that Mr. O'Brien has been a visitor at this hotel since the occurrence. As I said before, this testimony has given me considerable perplexity, but I do not think it measures up to the requirements of the rules. It, I think, may be explained consistently with innocence. hesitate in finding this woman guilty, on the testimony of these two parties as to the use of a single word, of no particular signification to fasten itself upon their memories, and testified to one year after it was uttered. I do not think it is of that character to convince the guarded discretion of a reasonable

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and just man to the conclusion of guilt. I therefore think the petition must be dis missed.

MORRIS v. KETTLE. (Supreme Court of New Jersey. Jan. 12, 1895.) COVENANT FOR RENT-DEFENSES-PARTIAL EVIC

TION-EFFECT-CONSTRUCTION OF LEASE.

1. Though, in an action of covenant for rent, an eviction cannot be shown unless specially pleaded, yet, when such defense is admitted without objection, the defect in the pleading will be overlooked.

2. If the tenant be evicted by the landlord from a part of the premises, the payment of the entire rent is suspended during the continuance of the eviction.

3. Neither the subsequent payment of rent, according to the terms of the lease, by a tenant, after a partial eviction by the landlord, nor the fact that he continues in possession of the remainder, constitutes a waiver of the eviction or consent thereto.

4. A lessor owned lot No. 264, on which there was a building covering the entire lot, and a lot on the west side of it, on which there were outbuildings used in connection with it, and also a strip of vacant land on the east side of the first lot. The lease described the premises as "the house and premises *** designated as 'Lot No. 264,'*** and all the buildings, outhouses, and premises of said place, with appurtenances." Held, that the lease did not include the vacant strip.

5. In such a case parol evidence is not admissible to show that the vacant strip was intended to be included in the lease.

Case certified from circuit court, Hudson county; before Justice Lippincott.

Action by Miles Morris against Margaret Kettle. There was a verdict for plaintiff, and the case was certified to the supreme court. Heard on rule to show cause. New trial advised.

Argued before BEASLEY, C. J., and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ. Van Winkle & Klink, for plaintiff. Fagan & Murphy, for defendant.

DEPUE, J. This action was in contract upon a covenant contained in a lease, for the recovery of rent for 13 months. By a lease in writing and under seal, dated Feb ruary 1, 1891, the plaintiff demised to the defendant certain premises for the term of five years from February 1, 1891. admitted that the rent from September 1, 1892, to October 1, 1893, had not been paid. The defense was that the defendant had been evicted by the plaintiff from a part of the demised premises before any of the unpaid reat became due. In debt for rent under the plea of nil debet, the defendant may show an eviction; but, in an action of covenant, an eviction cannot be set up unless specially pleaded, for the reason that in the action of covenant there is no general issue. 1 Saund. 204, note 2; Lewis v. Payn, 4 Wend. 427. But, the defense having been admitted without objection, the infirmity in the defendant's pleading will be overlooked. The defendant continued to pay the monthly payments of