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be applied to the case at bar. The order in which the bank shall exhaust its legal remedies is to be as may be determined by the court of chancery upon proper application.

The decree as to the defendants Margaret B. Stitzer and James H. Stitzer, Jr., is therefore affirmed. As to the defendant, the Quaker City National Bank of Philadelphia, the decree is reversed for the purpose of modification.

The cause is accordingly remitted to the court of chancery with instructions to proceed in accordance with the views herein expressed.

For affirmance--- None.

For reversalTHE CHIEF-JUSTICE, GARRISOX, SWAYZE, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, DILL-13.

John D. VAN HORN, complainant-appellant,

v.

SAMUEL R. DEMAREST, JR., executor, et al., defendants

respondents.

[Argued March 4th and 7th, 1910. Decided June 20th, 1910.)

On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 386.

Mr. Elmer W. Demarest, for the appellant.

Mr. Peter W. Stagg, for the respondents.

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PER CURIAM. The decree in this case should be affirmed, for the reasons given by Vice-Chancellor Stevenson. We are not to be understood, however, as holding that the case was one of equitable jurisdiction. No objection was made on this ground, and it would be wrong to

dismiss the bill for that reason at this stage of the proceedings.

For affirmanceTHE CHIEF-JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, Dill, Congdon–14.

For reversal-None.

JAMES L. Myles, petitioner and appellant,

V.

MARTHA MYLES, respondent.

[Submitted March 16th, 1910. Decided June 20th, 1910.) The term of two years' willful, continued and obstinate desertion described in the Divorce act as entitling the injured party to a divorce avinculo, is that next preceding the filing of the petition for divorce.

On appeal from a decree of the court of chancery advised by

Vice-Chancellor Emery.

Messrs. Coult E Smith, for the appellant.

Mr. Edward Kenny, for the respondent.

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PER CURIAM.

The decree of the court of chancery will be affirmed, for the reasons given in the opinion of Vice-Chancellor Emery, with one reservation, which seems to be required by certain expressions in the opinion, and especially in the concluding part of it.

The suit was for divorce on the ground of willful, continued and obstinate desertion for the term of two years. P. L. 1902 p. 502 & 2; P. L. 1907 pp. 474, 476. The parties had lived separate for over twelve years preceding the commencement of the suit, the husband claiming the original separation to have been due to the fault of the wife. From the language of the opinion already referred to, the inference is permissible, if not necessary, that the vice-chancellor regarded the first two years of the separation as the period to be examined in determining whether petitioner was entitled to his divorce. We hardly think he meant to be so understood, but to avoid any misunderstanding of our affirmance of the decree, we think it advisable to express our dissent from any such proposition. The two years contemplated by the statute are of course those immediately preceding the filing of the petition. Such, we think, has always been the understanding of the bar, and we think that since the act of 1794 (Pat. L. 1794 p. 145 § 3) the recognized precedents of petitions in desertion cases, to which the petition in the present case conforms, have always alleged that "for more than the statutory number of years last past” (i. e., preceding the filing of the petition), the defendant has willfully, continuously and obstinately deserted the petitioner. Dick. Ch. Prec. (2d ed.) 458;

Bidd. N. J. Div. Prac. 46, 86; Potts Ch. Prec. 264. That the · period of desertion must be that immediately preceding the pe

tition is plain from the fact that if the petition left a hiatus between such period and the date of filing of the petition, such hiatus might readily represent a complete reconciliation and reunition of the parties that would entirely destroy any right to a divorce arising out of a previous desertion.

Applying this rule to the facts in the case as appearing from the testimony, we agree with the vice-chancellor that petitioner has failed to show such desertion as under the statute entitled him to a divorce.

7 Buch.

The Prudential Insurance Co. of America v. Godfrey.

For affirmance-THE CHIEF-JUSTICE, GARRISON, SWAYZE, TRENCH ARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGII, VROOM, GRAY, Dill, Congdon--14.

For reversal-None.

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,

respondent,

V.

JAMIES GODFREY, administrator, et al., appellant.

[Submitted March 220, 1910. Decided June 20th, 1910.) On appeal of the defendant Mary Orr from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 75 7. J. Eq. (5 Buch.) 484. Mr. William B. Knight and Messrs. French & Richards, for

the appellant.

Mr. James Guest, Mr. Edward D. Duffield and Mr. G. Dore Cogswell, for the respondent.

PER CURIAM.

The complainant company having in its hands a fund due upon a policy of insurance issued by it, and which each of the defendants claimed, filed a bill against them praying that they be required to interplead. To this bill the defendant Orr filed an answer denying the right of the complainant to a decree of interpleader. The defendant Godfrey, as administrator, filed an answer which did not challenge the right of the complainant to a decree: and a cross-bill in which he asserted that he, and not the defendant Orr, was entitled to the fund. Vrs. Orr

The Prudential Insurance Co. of America v. Godfrey.

77 Eq.

answered the cross-bill denying the right of Godfrey, as administrator, to the fund, and asserting that it belonged to her. At the hearing before the vice-chancellor, the complainant put in its proofs in support of its right to a decree requiring the defendants to interplead, and Mrs. Orr proved the facts upon which she based her denial of the complainant's right to such a decree. At this stage of the case, it was suggested by counsel for Mrs. Orr that the vice-chancellor should first determine the question whether the complainant was entitled to a decree, before requiring the defendants to submit proofs in support of their respective claims to the fund. The vice-chancellor acquiesced in the propriety of the suggestion, and announced that he would reserve his decision on the question of the complainant's right to a decree of interpleader until a later date; and that if he should come to the conclusion that such a decree should go, he would then set a day for hearing the witnesses of the defendants upon the question of which one of them was entitled to the fund. The learned vice-chancellor, on the proofs submitted, concluded that the complainant was entitled to the relief sought by its bill, and then, without hearing further proofs (probably because he considered that the proofs already in were conclusive of the question), decided that Godfrey, as administrator, and not Mrs. Orr, was entitled to the fund. From the decree based upon these conclusions Mrs. Orr appeals. In her petition of appeal, she sets up as grounds of reversal that the vice-chancellor, on the proofs submitted, should have adjudged that Godfrey, as administrator, had no claim upon the fund; that the fund belonged to her, and that her right to it had been recognized by the complainant; that the complainant was not entitled to a decree of interpleader; and that the fund should have been directed to be paid to her, and the complainant's bill dismissed.

The grounds for reversal set out in the petition of appeal seem to us to be without merit. We concur in the conclusions expressed by the learned vice-chancellor in his opinion filed in the court below, that, upon the proofs before him, the complainant was entitled to a decree, and that the right to the fund was in Godfrey, as administrator, and for the reasons expressed in the opinion.

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