be said that the husband neglects or refuses to support his family, when, as a matter of fact, he is paying for their support such sums as were adjudged against him by a magistrate, upon proceedings instituted by his wife, the present complainant?

The two remedies, that under the Disorderly act and that under the Divorce act, are for one and the same thing, namely, support for a wife, or wife and family, as the case may be, against a deserting husband who neglects and refuses to perform his duty to maintain his family. As a party may waive the remedy given by statute and resort to his common law remedy (Coxe v. Robbins, 9 N. J. Law (4 Halst.) 384), so a party may undoubtedly waive one statutory remedy in favor of another.

The doctrine of election applies.

When a suit is brought in equity and one is pending for the same cause in a court of law, the defendant may put the complainant to his election whether he will proceed at law or in equity, if the remedy at law is co-extensive and equally beneficial with the remedy in equity. Way v. Bragaw, 16 N. J. Eq. (1 C. E. Gr.) 213, 217. In the case at bar the election has been made in favor of the action at law, and. the complainant having proceeded to a finality in the action before the justice, before preferring the application in this court, she must certainly be held thereby to have elected to stand upon the legal remedy. And the case of O'Brien v. O'Brien, 49 N. J. Eq. (4 Dick.) 436, in which it was held that a husband who, without justifiable cause, separates himself from his wife and neglects to provide for her such a support and maintenance as this court shall adjudge that the nature of the case and the circumstances of the parties render suitable and proper, is not in conflict with the doctrine just stated. The defendant in that case, upon separating from his wife, permitted her to live in a house he owned, and also permitted her to collect rents from other houses he owned, amounting to $60 a month, but did not bind himself to continue doing so, but considered the allowance temporary. The court made such an award as in its judgment was suitable and proper. In the case at bar the defendant has obligated himself by bond, with surety, to pay the award made by the justice in the proceeding instituted by the wife. I repeat: She has made her election.

There is another defence to the complainant's present application, and that is that the matter is res judicata. See the recent cases in our court of errors and appeals of Stein v. Cuff, 76 N. J. Eq. (6 Buch.) 277, and In re Walsh's Estate, 74 Atl. Rep. 563. The complainant, being a real, though not a nominal, party to the proceedings before the police justice, is bound by those proceedings. Even if the overseer were the only party to the proceedings under the Disorderly act, the complainant would be privy to the proceedings. In 2 Bouv. Dict. (Rawle's ed.) 754, "privies" are described as persons who are partakers of or have an interest in any action or thing, or any relation to another. See, also, 32 Cyc. 388. Within this broad definition the complainant is certainly privy, if not party to the proceedings before the police justice, and, as party or privy, would be bound by the proceedings.

The persons between whom a judgment or decree in a suit is conclusive in a subsequent suit, are the parties to the prior suit and their privies. 24 Am. & Eng. Encycl. L. (2d ed.) 724.

The justice's adjudication is operative for one year from its date (P. L. 1898, supra, § 23), and will expire by limitation within the next five months. At that time, if the situation and status of the parties are the same, the complainant would be at liberty either to prosecute the defendant de novo before the justice or resort to this court for the remedy given by the Divorce act. P. L. 1907, supra.

The present application will be denied, without costs, and without prejudice to its renewal, as above indicated.

1. In a suit for divorce founded on adultery, the signed confessions of the paramour written by the petitioner and witnessed, but made in the absence of the defendant, are not evidence.

2. The defendant's confession of guilt made to his wife and sister, are not such evidence as, under the law of this state, will support a decree.

Mr. Theodore D. Gottlieb, for the petitioner.

WALKER, V. C.

This is an ex parte divorce case for adultery. Marriage and residence are clearly proved. The master reports that in his opinion "all the material facts charged in the petition relative to the charge of adultery are true, and that a decree for divorce should be made for the cause of adultery.' That the charge

of adultery is proved to be true because the defendant has confessed it, I may admit, but his confession, or rather confessions, are insufficient in law to prove the commission of the offence, as will hereafter appear.

The proof of adultery lies in confessions of the defendant and his paramour. Of course the confessions of the paramour are not evidence when made out of the presence of the defendant. Doughty v. Doughty, 32 N. J. Eq. (5 Stew.) 32; Berckmans v. Berckmans, 16 N. J. Eq. (1 C. E. Gr.) 122; Hurtzig v. Hurtzig, 44 N. J. Eq. (17 Stew.) 329, 337; Graham v. Graham, 50 N. J. Eq. (5 Dick.) 701. The confessions of the paramour relied upon in this case were made in the absence of the defendant. She signed a confession which was written by the petitioner, and her signature was witnessed by a woman whom the petitioner called in for the purpose.

This was after the defendant had

left the petitioner, he having left before she discovered his infidelity.

As to the defendant's confessions of guilt: These were made to his wife and her sister. They do not appear to have been collusive, but, nevertheless, they are not such evidence as, under our law, will support a decree.

Chief-Justice Beasley, sitting as master in Jones v. Jones, 17 N. J. Eq. (2 C. E. Gr.) 351 (at p. 352), said: "The approved rule of law appears to be that a divorce will not be granted when the admissions of the criminal party constitute the entire basis upon which to rest the conclusion of guilt. Such evidence, it is said, may convince to a moral certainty, but it does not fill the measure of legal proof. That such a standard for legal judgment could not safely be adopted is apparent, when we consider the ease with which the entire case could be simulated by colluding parties. The precedents, therefore, wisely require something more than the naked declarations of the defendant."

Perhaps the leading case in this state on the question of .confessions is that of Summerbell v. Summerbell, 37 N. J. Eq. (10 Stew.) 603.

Vice-Chancellor Grey, in Perkins v. Perkins, 59 N. J. Eq. (14 Dick.) 515, speaking of Summerbell v. Summerbell (at p. 517), said: "In that case the opinion of Barker Gummere, Esq., as master, collates and comments upon the cases in a manner so thorough and discriminating as to be of the utmost value. The opinion of the court of appeals affirming the decree advised by him discusses the special facts shown."

While the particular point upon which Summerbell v. Summerbell turned was presumption of coercion on the part of a husband concerning a wife's confession of adultery written in the husband's presence, the learned master, in his opinion, reviews the law of confessions generally and holds that they are not conclusive in and of themselves, and that whether made by husband or wife cannot be made the basis of a decree unless strongly corroborated. See Summerbell v. Summerbell, supra (at p. 605 et seq.) See, also, Kloman v. Kloman, 62 N. J. Eq. (17 Dick.) 153, in which Vice-Chancellor Reed holds (at p. 156) that corroborating evidence to support a confession must be in respect

of the act charged. See, also, Perkins v. Perkins, 59 N. J. Eq. (14 Dick.) 515.

As there is no legal evidence of the guilt of the defendant the adultery is not proved, and the divorce must be denied.

SALINA O'DONNELL et al.

v.

CATHERINE MCCANN et al.

[Decided March 10th, 1910.]

1. If any circumstance occurs after bill filed which does not abate the suit and occasions an alteration in the interest of any party or renders it necessary that new parties should be brought before the court, the proper method of proceeding is by supplemental bill; and such a bill may be filed by a defendant, if his interests so require.

2. The recovery of a legacy by one entitled thereto will not defeat the claim of a creditor even though he has been barred of his action against the executor, for, if he has been so barred, he may recover his debt out of the legacy and from the legatee.

3. Legatees succeed to the estate of the testator as beneficiaries and objects of his bounty and have no rights or equities whatever as against creditors.

4. The rule to limit creditors and the decree barring creditors, provided for by the Orphans Court act, operate only to protect the executor from molestation by belated claims of creditors, to the end that the estate of a decedent may be speedily settled; and the provisions mentioned do not operate as a statute of limitation against the claims of creditors.

5. The prohibition contained in section 76 of the Orphans Court act which prevents an executor or administrator cum testamento annexo, who has neglected to enter a rule to limit creditors and to proceed thereon according to law, that is, take a decree to bar creditors and settle the estate, from pleading want of assets in abatement in a suit for a legacy, unless a suit brought within a year from the grant of probate or administration be pending on a claim against the estate, will not be permitted to work a recovery of a legacy and a debt out of such personal representative beyond assets available for their payment.