We see no merit in any of the assignments of error. They are overruled, and the judg ment is affirmed. (231 Pa. 449) MILLER et al. v. COCKINS et al. (Supreme Court of Pennsylvania. April 24, 1911.) APPEAL and Error (§ 1106*)-DISPOSITION OF CAUSE-REMAND WITHOUT DECISION. In an equity case, it is not the duty of the where the trial judge fails to find the facts from Supreme Court originally to find the facts, and conflicting testimony when it is possible for him to do so, and merely makes the summary of the be remanded that the facts may be found in acstatements of the several witnesses, the case will cordance with equity rules. quirements, and this remedy it is said is ex- held secure and immovable while the door clusive. This court announced a general was open, without regard to the action of rule, when in Mack v. Wright, 180 Pa. 472, the operator. 476, 36 Atl. 913, it said: "The presumption is that, where a statute imposes a duty where none existed before, the remedy provided therein for the breach of the duty is exclusive." But this rule is not without exceptions, as is pointed out in Cooley on Torts, p. 653, as follows: "If a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected. And if the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the state or to an informer, the right of an individual injured to maintain an action on the case for the duty owing to him will be unquestionable." This principle was recognized in Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617, 620, 69 Atl. 1116, where our Brother Elkin, in referring to the provisions of the statute of May 2, 1905 (P. L. 352), which prohibits the employment of children under 14 years of age, said: "It is true the statute is penal, and violations of its provisions, upon conviction, are punishable by fine or imprisonment, but these remedies are not exclusive, and do not supersede the right of action for damages in a civil proceeding." [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4386-4398; Dec. Dig. § 1106.*] Appeal from Court of Common Pleas, Allegheny County. Bill in equity by Horace J. Miller and another against James M. Cockins and others to declare a trust ex maleficio. From a decree dismissing the bill, plaintiffs appeal. Case remanded. Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ. Joseph N. Ulman and John S. Ferguson, for appellants. Samuel S. Mehard, Harvey A. Miller, and Louis J. Burger, for appellees. STEWART, J. The bill in this case was maleficio with respect to certain property deto have the defendant declared a trustee ex vised and bequeathed to him by his wife upwith his wife, and for an injunction restrainon an alleged parol agreement made by him ing the defendant from disposing of the property. The answer specifically denied that any such agreement had been made, and traversed every material allegation in the bill. The plaintiffs were accordingly put to their proofs. The evidence they adduced re [2] In the present case the duty of providing a locking device was intended to be a duty to the public, and also to individuals; but the penalty for noncompliance with the statute, which is made payable to the public officer, affords no redress to the individual who suffers by reason of the neglect of the duty imposed by the statute. The right therefore to maintain this action in behalf of the individual injured seems to be beyond question. The trial judge charged the jury that, if they found the elevator was not equipped with the safety device required by the stat-lated wholly and exclusively to admissions ute, they would be justified in inferring negligence on the part of the defendants, and if, the plaintiff was injured by reason of this neglect of duty, without fault upon her part, she would be entitled to recover. We think this instruction was entirely proper. alleged to have been made by the defendant immediately after his wife's death, some before her final interment, and some within a day or two thereafter. The testimony relied on to establish these came from the plaintiffs themselves, the husband of one of [3] In the argument of counsel for appel- them, and one witness not identified in interlants, it is also suggested that the injury to est. The defendant alone testified in contraplaintiff resulted from the action of the diction. It is not open to question that the operator of the elevator, who was a fellow admissions testified to by Mrs. Blick and her servant. But the case does not rest upon husband as having been made by the defendany allegation of negligence by the operator. ant were so many clear, distinct, and unqualThe neglect of duty charged was the failure ified acknowledgments that the will, though to equip the elevator with the safety device on its face an absolute devise and bequest to required by the statute. With that failure the defendant. was so made with the underthe operator had nothing to do. If the stat- standing and agreement between testatrix ute had been obeyed, the accident could not and defendant, that defendant was to have have occurred, as the car would have been but a life estate therein, and that upon his death the property was to go to these appel-, with respect to this controversy was with lants as next of kin. The testimony of Horace J. Miller, who was present at some of the conversations, while not so explicit and circumstantial as that of Blick and his wife, is corroborative in its main features, and, if believed, makes largely for plaintiff's contention. As much is to be said of the testimony of Samuel J. Harman, Esq., an attorney, who testified to a certain conversation with the defendant in his office in Baltimore. There was nothing material in the testimony of any of these witnesses that was not as distinctly and unqualifiedly denied by the defendant. As one side or the other; not partly with one and partly with the other. The alleged admissions were either made or they were not made. There is no middle ground; for mistake or misunderstanding was not pretended. The failure to find with respect to these admissions is not relieved by what follows in this finding. What precedes cannot be regarded as the finding of any fact. It is at best an epitome in paragraphs of testimony on one side and the other, and too brief for a correct understanding of the case. there given, it shows a single, sharp, and clearly defined issue of fact with regard to The case resolved itself into a question as which one side must be speaking the truth to which side was to be believed. Had the and the other falsehood. There is no poslearned chancellor met and decided this is-sible escape from this, and yet we have a sue, however much we might have been in- conclusion by the chancellor in the latter part clined to a contrary view, we would have giv- of this seventh paragraph which the testien his conclusions the effect of a verdict, ex-mony on neither side, so far as he cites it, cept as clear error appeared, because of his better opportunity, from having the witnesses before him, of judging of their credibility. But this he has not done. What are apparently intended as the findings of fact in the case, until we reach the seventh, are but so many concise statements of what the several witnesses testified to. The seventh is the only finding, and even that is rather an evasion than a finding. It is as follows: "We have thus stated the substance of the testimony, for the reason that the nature and character of the evidence in a case of this kind appears to be a substantive fact. We are somewhat at a loss to determine from the evidence thus given precisely what did happen as to the declarations and writings re lied on by the plaintiffs. We have no difficulty, however, in finding as a fact, and we do find, that Mr. Cockins when he told the plaintiffs of his wife making a will of all her property in his favor said to them substantially that his wife had reposed great confidence in him, that she had expressed to him the wish that he would see that her next of kin got the property after his death, and that he had told her that he would see to it that they got it, but he did not say or mean to say that the will was made by her upon any such promise or condition, but merely that, after the will was made and she had told him of it, the request and promise had been made as stated." Precisely what did happen with respect to the declaration and writings relied upon by the plaintiffs was just what it was the duty of the chancellor to find. We fail to understand why he was at a loss to determine it. The evidence was ample, and it was simply a question of preponderance of proof. If the case presented any unusual or difficult features, we have not discovered them. If a finding of fact by a chancellor is to be allowed the conclusive ness of a verdict, it must have the characteristics of a verdict. It must speak the truth where the truth has been hidden or concealed will support. For all that there appears, this finding could well be regarded as a purely arbitrary conclusion. It may be that there can be found somewhere in the record that which fully justified it; but it is not for us to search through the testimony to find upon what it rests. Findings by a chancellor should vindicate themselves to the extent at least of showing a sufficient basis of fact. If there is any evidence in this case warranting a finding that, if defendant did make the admissions testified against him, he did not mean what he said, it should appear and be made the subject of a special finding. If the four witnesses who testified for the plaintiffs are to be wholly discredited, with respect to the one vital point, and credited with respect to everything leading up to it, and the defendant himself, the only witness per contra, is to be credited with respect to the vital point, but discredited as to everything else, all of which is necessarily involved in this finding, we are entitled to know what considerations influenced the mind of the chancellor in reaching such result; otherwise, the burden of original inquiry is imposed on this court. We express no opinion whatever as to the merits of the controversy, and, in so far as we have recited any of the details of it, our only purpose has been to make clear the necessity for fuller and more specific findings, with the considerations on which they are rested. The clear admission of the chancellor that he was at a loss to find precisely what happened in the conversation between the parties renders his conclusions on the merits of the case of little value; besides, it imposes on us a duty which in the first instance is not ours, but which must be performed by some one before just conclusions can be reached. For the reasons stated, we have concluded to remand this record for fuller and more specific findings in accordance with the rules of equity practice, either side to have the right to file exceptions thereto sec. reg. It N. J.) (79 N. J. E. 144) SUYDAM v. SUYDAM. where the wife has in fact left the husband on account of his alleged derelict conduct, her application for alimony and counsel fee pendente (Court of Chancery of New Jersey. Aug. 25, lite will be scrutinized and decided upon the 1911.) (Syllabus by the Court.) 1. DIVORCE (§ 37*)-ALIMONY-DESERTION. [Ed. Note. For other cases, see Divorce, MENT." 1 to If a wife leaves her husband because of his adultery, even if it be committed elsewhere than at their dwelling, the separation thus created is constructive desertion by him for the purpose of enabling her to compel him support her; that is, it amounts to the abandonment or separation (whatever the difference) by him from her without justifiable cause, within the meaning of section 26 of the divorce act. (P. L. 1907, p. 482). [Ed. Note. For other cases, see Divorce, Cent. Dig. & 130;. Dec. Dig. § 37.* For other definitions, see Words and Phrases, vol. 1, pp. 4-13; vol. 8, p. 7559; vol. 7, p. 6418.] 8. DIVORCE (88 213, 225*) — ALIMONY AND COUNSEL FEE-RIGHTS OF WIFE. In divorce cases the wife is a privileged suitor, and, as a general rule, is entitled to alimony and counsel fee pendente lite whether she be complainant or defendant. If, however, she has sufficient property of her own, no allowance will be made. weight of the testimony then presented, and the rules of law applicable thereto, just as other litigated motions are decided, even though she be a favored suitor. [Ed. Note. For other cases, see Divorce, Dec. Dig. §§ 214, 226.*] 7. DIVORCE (§ 213*)-ALIMONY AND COUNSEL FEES-RIGHTS OF PARTIES. Because a husband denies under oath the charges against him, it does not necessarily follow that alimony pendente lite will be refused. Nevertheless, where his sworn denial is abundantly corroborated, and the case made by the pleadings and affidavits on the preliminary motion is with him by the application of the usual rule concerning the burden of proof, the defendant should not be visited with any interlocutory order for allowances, where it appears that the wife has left him either because of his alleged extreme cruelty or adultery; because a wife who leaves her husband does so at her peril, and assumes the burden of making the desertion constructively his by establishing his guilt by clear and satisfactory proof, and this is so on application for temporary alimony and counsel fee as well as on final hearing. [Ed. Note. For other cases, see Divorce, Dec. Dig. § 213.*] Petition by Margaret Suydam against Marcus L. W. Suydam for alimony and counsel Denied. fees pendente lite. William N. Cooper, for petitioner. Scott Scammell, for defendant. WALKER, V. C. The bill in this case was filed for alimony under the divorce act (P. L. [Ed. Note.-For other cases, see Divorce, 1907, p. 482) § 26. It does not allege that Cent. Dig. 619; Dec. Dig. §§ 213, 225.*] the defendant without any justifiable cause 4. DIVORCE (§§ 209, 221*) — ALIMONY AND abondoned his wife, the petitioner, or sepaCOUNSEL FEE-RIGHTS OF WIFE. There is some distinction, however, accord-rated himself from her, but alleges that by ingly as the wife complains or is complained reason of the committing of an act of adul against. When she is complainant and no suffi- tery by him she was compelled to leave him, cient case is made by her bill and affidavits, which she did June 7, 1911, and since that alimony and counsel fee pendente lite will be denied; but, when she is defendant, she is time he has refused and neglected to mainThe adultery is entitled to preliminary allowances, if she denies tain and provide for her. under oath the matrimonial offense charged said to have been committed at a place away against her, and is without means for her sup-from the matrimonial domicile. port and for defending her husband's suit. Even when she is defendant, it may be that she is disentitled if her denial is not made in good faith; but, as to this, quære. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 605-609, 642, 643; Dec. Dig. §§ 209, 221.*] 5. HUSBAND AND WIFE (295*) – ACTIONS FOR SEPARATE MAINTENANCE PRELIMINARY RELIEF. [1] If a husband be guilty of conduct which will justify his wife in leaving him, which must be conduct amounting to a matrimonial offense that would constitute ground for divorce or alimony, she is justified in abandoning him, and the desertion Moores v. Moores, 16 thereby becomes his. N. J. Eq. 275, 280; Weigand v. Weigand, 41 The rule is different in case for alimony N. J. Eq. 202, 209, 3 Atl. 699; Dummer v. disassociated from divorce a vinculo matrimonii. On motion for preliminary relief in mainte- Dummer (Err. & App.) 41 Atl. 149. nance suits, the court looks into the merits of the application as disclosed by the pleadings and affidavits, and is thereby guided in the exercise of its discretion. And, when the bona fides of a wife's application is questionable, such relief will be denied. Own [2] It is true it has been held that a wife cannot maintain a suit for divorce against her husband as for a desertion by him when she has left him because of his adultery committed elsewhere than in their abode. Stiles v. Stiles, 52 N. J. Eq. 446, 29 Atl. 162; Lake v. Lake, 65 N. J. Eq. 544, 56 Atl. 296. Vice Chancellor Reed in Lake v. As well in cases for divorce a mensa et Lake said that an adulterous act committed thora as in those for alimony pure and simple, by a husband at a place other than the [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 1084-1088; Dec. Dig. § 295.1 6. DIVORCE (§§ 214, 226*) — ALIMONY AND COUNSEL FEES-RIGHTS OF PARTIES. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes also, Glasser v. Glasser, infra. But these were cases in which the wife was complainant. dwelling of the parties might justify a wife | the husband sues the wife for divorce, she in separating from her husband, while Vice is entitled to alimony and counsel fee penChancellor Pitney in Stiles v. Stiles said that dente lite, if she denies under oath the mathe petitioner was entirely justified in leav-trimonial offense charged against her, and ing her husband because of such an adultery. is without means for her support or for deThese cases (Stiles v. Stiles and Lake v. fending her husband's suit. Although it may Lake) only establish the doctrine that a wife be she is disentitled if her denial is not may not sue for and obtain a divorce for made in good faith, but is merely sham and her husband's desertion, when forsooth she for the purpose of protracting the period has left him because he is guilty of the mat- during which the injured husband may be rimonial offense of adultery committed compelled to support her, but, as to this, away from their dwelling. Proof of adul- quære. In Kirrigan v. Kirrigan, 15 N. J. tery is not proof of statutory desertion. Tra- Eq. 146, 148, it was held that where it apcey v. Tracey, 43 Atl. 713. The rule is that, pears that a suit for divorce was not instiif a wife discovers her husband's adultery, tuted by the wife in good faith, but for the she must separate herself from him if she mere purpose of collecting money from her would sue for divorce, unless there are im- husband or compelling him to support her, perative reasons for her to continue to co-alimony pendente lite will be denied. See, habit with him. Stevens v. Stevens, 14 N. J. Eq. 374; Marsh v. Marsh, 14 N. J. Eq. 315, 82 Am. Dec. 251; Chapman v. Chapman, 25 N. J. Eq. 394. And during such separation his liability to support her continues. Under our statute, desertion is justified when the deserting party has been so offended against as to authorize at his or her instance a decree for divorce or judicial separation, but only when the guilt of the offending party is shown by clear and satisfactory proof. Drayton v. Drayton, 54 N. J. Eq. 298, 301, 88 Atl. 25. If a wife leaves her husband because of his adultery committed elsewhere than at their dwelling (while the separation thus created is not constructive desertion on his part so as to enable her to procure a divorce from him for that cause), it is constructive desertion of her by him for the purpose of enabling her to compel him to support her; in other words, it amounts to the abandonment or separation (whatever the difference) by him from her without justifiable cause within the meaning of section 26 of the divorce act. [3] In divorce cases the wife is a privileg ed suitor, and, as a general rule, is entitled to alimony and counsel fee pendente lite, whether she be complainant or defendant. If, however, she has sufficient property of her own, no allowance will be made. Marker v. Marker, 11 N. J. Eq. 256; Westerfield v. Westerfield, 36 N. J. Eq. 195. Where the wife is complainant and no sufficient case is made by her bill, alimony and counsel fee pendente lite will be denied. Ballentine v. Ballentine, 5 N. J. Eq. 471, 476. Or where no sufficient case is made by the bill and affidavits. Martin v. Martin, 8 N. J. Eq. 563, 569; Dougherty v. Dougherty, 8 N. J. Eq. 540. In the case at bar the wife shows herself to be without means, and it appears that the husband is abundantly able to respond. This being the posture of affairs, the wife's prayer for alimony and counsel fee will be granted, unless the facts disentitle her. [5] Now, the rule is different in cases for alimony disassociated from divorce a vinculo. Vandegrift v. Vandegrift, 30 N. J. Eq. 76, 77. In maintenance suits the court looks into the merits of the application as disclosed by the pleadings and affidavits, and is thereby guided in the exercise of its discretion. Glasser v. Glasser, 28 N. J. Eq. 22. And, when the bona fides of a wife's application is questionable, preliminary relief will be denied. The Legislature appears to have made a distinction between divorce and alimony cases by providing that in the latter a bond may be required of a wife to answer for costs: P. L. 1907, p. 482, § 27. See Harris v. Harris, 70 N. J. Eq. 586, 62 Atl. 703. [4] There is some distinction, however, ac- [6] Cray v. Cray, 32 N. J. Eq. 25, was a cordingly as the wife complains or is com- bill for divorce, but, presenting no ground plained against. Chancellor Dickerson in therefor, it was retained as a bill for main1842, in the case of Amos v. Amos, 4 N. J. tenance, and the preliminary application for Eq. 171, 172, held that, when the wife is alimony and counsel fee was denied. Chancelcomplained against, she has not as just lor Runyon observed at page 28, 32 N. J. Eq., ground for an allowance as when she is com- that in these cases the court acts with great plainant. But Chancellor Runyon in 1881, care in passing upon such applications, and in the case of Johnson v. Johnson, 4 N. cited Glasser v. Glasser, ubi supra. Now, J. L. J. 241, without distinguishing or no- Glasser v. Glasser was a suit for divorce ticing Amos v. Amos, held that on a bill from bed and board with a prayer for alifor divorce by the husband, if the wife ap- mony incidental thereto, and because the deplied for alimony and counsel fee, she was fendant answered denying every material alentitled to them as a matter of course. This legation against him and produced, on the is directly opposed to Chancellor Dickerson's motion for alimony and counsel fee pendente ruling, and obviously is the better opinion. I lite, numerous affidavits in corroboration of the petitioner not being of a character to | der the rule laid down in Martin v. Martin, countervail them, the application for tem- Dougherty v. Dougherty, and Glasser v. porary relief was denied. The denial in that Glasser, ubi supra, as well as on final hearcase (Glasser v. Glasser) was rested largely ing. upon Begbie v. Begbie, 7 N. J. Eq. 98, Dough- It is not necessary to review or discuss erty v. Dougherty, 8 N. J. Eq. 540, and Mar- the facts in the case at bar. The proofs betin v. Martin, 8 N. J. Eq. 563. Begbie v. Beg-fore the court on this motion if not more fabie was a suit for divorce a mensa et thora. vorable to the defendant than to the petiDougherty v. Dougherty was a case for alimo- tioner at least make her case appear exny and maintenance, and so was Martin v. tremely doubtful; and to doubt is to deny. Martin. The rule deducible from these cases It may be that upon final hearing the petiseems to be that as well in cases for divorce a tioner will be able to produce more and mensa et thora as in those for alimony pure stronger proof, and by cross-examination of and simple, where the wife has in fact left the defendant's witnesses or otherwise a case husband on account of his alleged derelict may be made which will entitle her to the conduct, her application for alimony and relief she seeks; but, as the case stands counsel fee pendente lite will be scrutinized upon the affidavits submitted on this appliand decided upon the weight of the testi- cation, I am constrained to the conclusion mony then presented and the rules of law that the defendant is entitled to prevail. applicable thereto, just as other litigated His proofs certainly countervail the petimotions are decided, even though she be tioner's. Therefore the motion for alimony a favored suitor. Still I do not think that and counsel fee pendente lite will be denied. what Chancellor Green said in Walling v. Walling, 16 N. J. Eq. 389, that on application for alimony pendente lite the case must be taken most strongly against the petitioner and that the burden of proof is upon her, (Court of Chancery of New Jersey. April 26, RHEINFORT et al. v. ABEL. 1910.) session, Cent. Dig. §§ 65-76; Dec. Dig. § 13.*] [Ed. Note.-For other cases, see Adverse Pos2. EJECTMENT (§ 10*)-TITLE TO SUPPORT ACTION-ADVERSE POSSESSION. Title by adverse possession will support ejectment. Cent. Dig. §§ 30-41; Dec. Dig. § 10;* Adverse [Ed. Note.-For other cases, see Ejectment, Possession, Cent. Dig. § 616.] Suit to quiet title by Georgiana Rheinfort and others against Lizzie Abel. On final hearing of bill. Decree for complainants. See, also, 76 N. J. Eq. 485, 74 Atl. 479. James C. Connolly, for complainants. Alexander P. Maxwell, for defendant. was intended to have been laid down by him as a universal rule applicable alike to all 1. ADVERSE POSSESSION (§ 13*)-REQUISITES. The open, notorious, uninterrupted, contincases of this character, but that it was in-uous, undisputed, peaceable, and adverse possestended, as a perusal of the case will disclose, sion of land for the requisite period under a to be applicable only to the case then before claim of right will give title. the court, which was one in which the application for temporary allowance was submitted upon the facts contained in the petition alone, and which were meager and unsatisfactory. Because the defendant denies under oath the charge against him it does not necessarily follow, said Vice Chancellor Bird, in Tyrrell v. Tyrrell, 3 Atl. 266, 267, that alimony pendente lite will be denied; for, if that were so, such alimony would seldom be ordered in litigated cases. [7] While the mere denial of the husband under oath of the charge against him will not necessarily, and, it seems to me, ought not under ordinary circumstances to, relieve him from the payment of preliminary alimony and counsel fee, nevertheless, it seems equally clear that where his sworn denial is abundantly corroborated, and the case made by the pleadings and affidavits on the preliminary motion is with him by the application of the usual rule concerning the burden of proof, he should not be visited with any interlocutory order for allowances where it appears that the wife has left him either because of his alleged extreme cruelty or adultery, because a wife who leaves her husband does so at her peril and assumes the burden of making the desertion constructively his by establishing his guilt by clear and satisfactory proof. See Drayton v. Drayton, ubi supra. And this must be so on application for temporary alimony and counsel fee un HOWELL, V. C. The bill in this case is filed to quiet the title to a tract of land in Elizabeth, of which Peter Abel died seised on July 26, 1869. Peter Abel left him surviving his widow, Elizabeth, a daughter, Lizzie, and a son, John P. It was not known at that time, and it was not discovered until months afterwards, that he had executed a will. In the month of March, 1870, the daughter, Lizzie, was married to one John G. Bauman. This marriage was subsequently annulled, as hereinafter stated, for the reason that Bauman, at the time of his marriage to Lizzie Abel, was already married to another woman, who was then living. On December 28, 1870, Lizzie, the daughter, was married to her cousin, Peter Schell. On June 4, 1874, the daughter, Lizzie, by the name of Lizzie Abel, not Lizzie Bauman, nor Lizzie Schell, |