court, in 1833. Stebbins v. Walker, 2 Gr. 90. The chief-justice, after a historical review of the subject, said: "I cannot doubt that we have the right, whenever application is made to us for that purpose and a proper case stated, to compel the sheriff to bring the money into court. Neither have I any doubt but that the sheriff, whenever he chooses for his own convenience, instead of paying the money to the party out of court, may, in obedience to the command of the writ, bring it here and pay it in court." This case, also, is authority for the right of the sheriff to discharge himself by taking the receipt of the clerk; a fortiori this is his only permissible course where payment into court is ordered.
The practice thus declared has never since been questioned. It was reasserted as proper in Cox v. Marlatt, 7 Vr. 390, and in Wandling v. Thompson, 12 Vr. 142, the supreme court held in contempt a sheriff who, after an order to pay into court the proceeds of an execution, gave a deed for land sold by him to a plaintiff in execution and accepted his receipt in lieu of cash. We entirely assent to the view that any court may compel money raised by its process to be brought into court for distribution, and that from an order made for that purpose no one suffers an appealable grievance. To obtain an order merely for such payment neither written pleading nor proof is essential. The court is merely enforcing a regulation customarily dispensed with. Presumably the money will be paid as previously adjudged. The only burden will be that of notice to interested parties.
Chancellor Green well held, in Lithauer v. Royle, 2 C. E. Gr. 40, that no change can be made in the mode of appropriating a fund ordered raised by decree, except by opening and correcting the decree and altering the execution. The same thing is, of course, true of a common law judgment.
The proceeding to correct the adjudication may, of course, be instituted before the money is ordered paid into court, and a very proper course is that which was taken in the present case, namely, to include prayer for that relief in the application for the order for such payment.
The only debatable question on this appeal is whether Mrs.
McGuinness made a case sufficient to warrant the inquiry ordered. She certainly was not estopped from asking it, for, at the time she presented her petition, she had a larger right than at the time she suffered the decree. The issue she now tenders has never been litigated, and she has a right to be heard on it. The records of the court afforded sufficient proof of her status. It may be that the chancellor might well have required a disclosure of the information forming the ground of her belief that McLaughlin's judgment was collusive and fraudulent; but there was no substantial grievance inflicted in permitting the inquiry ordered without first requiring prima facie proof of the allegations made.
The order appealed from is, in all things, affirmed.
For affirmance-GARRISON, COLLINS, FORT, GARRETSON, PITNEY, BOGERT, ADAMS, VREDENBURGH, VOORHEES, VROOM-10.
ADULTERY-1. The testimony of the witnesses sworn on behalf of
the petitioner, as to the charges of adultery against the defendant,
upon which the decree below is founded, considered to bear evident
marks of improbability and exaggeration, and held to have been
fully met and disproved by the proofs of the defendant. And
held, also, that the evidence relating to the prior conduct of the
defendant, introduced by the petitioner for the purpose of show-
ing an alleged adulterous disposition on her part toward the co-
respondent, failed to establish such a charge. BROWN v. BROWN, 348
2. The rule stated in Berckmans v. Berckmans, 1 C. E. Gr.
122, that "the testimony of one witness uncorroborated, unsup-
ported and in its details improbable, is not sufficient to establish
the charge of adultery against the full and explicit counter testi-
mony of the person accused and her particeps criminis," ap-
proved.
3. In cases depending upon circumstantial evidence for sup-
port, the will to commit the adulterous act, as well as the oppor-
tunity for its commission, must be established. Id............. 348
4.- While in a suit for divorce for adultery by a husband
against the wife, his conduct in designedly encouraging and
furnishing occasions and opportunities for suspicion against her
may not constitute such connivance by him as to be legally
sufficient to bar him from his right to maintain his suit, yet
his conduct may serve to explain and excuse the appearances of
intimacy into which she thereby became involved, and out of
which the charges of adultery against her arose.
5. Where a suit for a divorce for adultery is not brought until
twenty-five years after discovery of the infidelity, the delay is
fatal, in the absence of some satisfactory excuse. BARKER v.
BARKER
Where a husband delays bringing suit for divorce for adul-
tery for twenty-five years after discovery of the wife's infidelity,
the fact that she had been residing abroad and he in the United
States during such time was no excuse for the delay. Id....... 593
ADVANCEMENT-A father purchased realty for his son, who testi-
fied that the father said repeatedly that it was bought with money
which had belonged to his deceased first wife, the mother of this
son. A brother of the father testified that the father had told
him that he intended to keep the money of his first wife until he
could find a place to invest it for this son, and that after the
property in question was purchased the father told witness that
it was paid for with the money of the first wife. During the life
of the first wife the husband had purchased two houses and lots
and put the title in her name, and in a memorandum of a will,
dictated some months before his death, he gave all his interest in
these two houses to the son, and the rest of his estate to his
second wife and her children.-Held, sufficient to show that the
property purchased for the son was not intended as an advance-
ment. GRUMLEY v. GRUMLEY....
AGENCY-1. Complainant left in the hands of her attorney J., who
had charge of her investments, a bond and mortgage for $3,000
belonging to her and also an absolute assignment of the bond
and mortgage, executed by her to defendant M. The execution
of the assignment. was procured by fraudulent representations
made by J. to complainant, as was also the retention of the bond
and mortgage. J. procured M. to endorse his note for $2,000 on
the security of the mortgage and assignment, stating that he
desired to raise a loan of $2,000 for the benefit of complainant.
Complainant was not a party to the note. M. knew that J. had
charge of complainant's investments.-Held, (1) that complain-
ant's act in leaving the assignment and the mortgage with J.
assisted in making J.'s representation to M. credible, and that
she was estopped from denying J.'s agency to assign the mort-
gage to M., either absolutely or as collateral security; (2) the
fact that complainant was not a party to the note did not, under
the circumstances, give M. notice or put him upon inquiry as to
the fraud in the assignment. MORRIS v. JOYCE.............
2. J. owned the property on which the mortgage was given,
and subsequently to the endorsement by M. procured from de-
fendants, a building and loan association, a loan of $3,200,
$2,000 of which were paid by its assuming payment of the note
endorsed by M. and the balance was paid to J. The loan was
procured by J.'s statements that the $2,000 on the note was the
entire amount due on the mortgage. The association advanced
the money ($1,200) and assumed the note, relying solely on J.'s
statement. They received from M. an assignment of the mortgage
subject to the conditions on which he held it.-Held, (1) as to
the $2.000 note assumed, they were assignees of M.'s rights
against complainant and entitled to hold the mortgage to secure
this amount; (2) as to the amount due beyond the $2,000,
complainant is entitled to a decree giving her the benefit of the
mortgage.
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