Hestonville Railroad Co., 149 Pa. 70, 24 Atl. 88, 15 L. R. A. 665; but I am constrained to say that in my opinion the cases called to my attention on behalf of the complainants in this connectic do not go to the extent claimed. Chancellor McGill, in Archer v. American Waterworks Co., 50 N. J. Eq. 33, 24 Atl. 508, evidently meant to say that the power of the Court of Chancery to protect corporate elections would be exercised by means of injunctions, and such is undoubtedly the meaning of the opinion of Chancellor Pitney in Warren v. Pim, 66 N. J. Eq. 382, 59 Atl. 773. The statement made by Chancellor Runyon in Lehigh Coal & Navigation Co. v. Central Railroad Company of New Jersey, 35 N. J. Eq. 353, as to the exercise of the power of the court to provide for corporate elections, refers to the affairs of a railroad company which were being administered by the Court of Chancery by a receivership, which gave the court such control over the affairs of the company that it had power to order an election as part and parcel of its plan of management.

The motion will therefore be denied.

(82 N. J. L. 1)

CHAMBERS v. PHILADELPHIA PIC-
KLING CO.

(Supreme Court of New Jersey. Nov. 13, 1911.)

1. APPEAL AND ERROR (§ 1191*)—REMITTITUR -TIME OF FILING.

573

GUMMERE, C. J. [1, 2] This case was tried at the Camden circuit on April 11, 1911, in the absence of the defendant, and resulted in a verdict for the plaintiff. The case had been in the Court of Errors and Appeals on a review of a judgment overruling a demurrer. 79 Atl. 273. The remittitur from the Court of Errors and Appeals bears date March 6, 1911; the file mark indorsed upon it by the clerk of the Court of Errors and Appeals, however, bears date April 24, 1911, 13 days after the trial at the circuit. The reasonable conclusion to be drawn from these variant dates is that, although the remittitur was ordered by the appellate court on the 6th day of March (that being the date upon which the opinion of that court was delivered in the case), the plaintiff's attorney failed to file the remittitur in the clerk's office until the 24th of April. On this assumption, the trial was premature, for the writ of error removed the record into the court of review, and that record remained there until the remittitur was actually entered. Welch v. Brown, 42 N. J. Law, 324. Moreover, under rule 39 of the Court of Errors and Appeals, the record is not permitted to be actually remitted to the court below until after the expiration of 10 days from the date of the entry of the remittitur, without a special order of the court. Until the record was returned, the court below was without power to try the case. For this reason, the rule to show cause will be made absolute.

(78 N. J. E. 78)

DAVIS V. PALMER.

1911.)

(Syllabus by the Court.)

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4646; Dec. Dig. § 1191.*] 2. APPEAL AND ERROR (§ 1187*)-ENTRY OF REMITTITUR-JURISDICTION OF LOWER COURT-TIME OF ACQUIRING.

Where the remittitur was not actually filed until April 24th, the lower court did not have power to retry the case on April 11th, though the remittitur was ordered by the appellate court on March 6th; the record having been removed by the court of error, and the

lower court having no jurisdiction till it is returned.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4642; Dec. Dig. § 1187.*]

Action by Walter Chambers against the Philadelphia Pickling Company. On rule to show cause. Rule made absolute.

Argued June term, 1911, before GUMMERE, C. J., and PARKER and VOORHEES, JJ.

Wilson & Carr, for the rule. Wescott & Wescott, opposed.

TUAL PARTITION.

Partition Act (P. L. 1898, p. 666) § 65, expressly empowers the Court of Chancery in its discretion to grant the desire of tenants in in one parcel without partition inter sese, and common who elect to have their shares set off where the complainant is one of six equal tenants in common of the lands in question, and ants and unite in an answer joining in the the defendants comprise the other five cotenprayer of a bill that a commission issue to make partition, but expressly declaring their election to have their shares set off to them jointly, and praying that the interest of the complainant be set off to him in severalty, the answer should be submitted to the master on the reference to him of the other matters.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 224, 225; Dec. Dig. § 79.*] 2. PARTITION (§ 77*)-ACTIONS-MODE OF AC

TUAL PARTITION.

Where one party holds five shares, and the other party holds one share, the question is, not whether the land can be divided into six shares of equal value, but whether the land can be divided into two shares having the ratio of value of five to one; or, in other words, whether a portion can be set off which will be onesixth the value of the whole tract without prej

The distribution by lot in such a case is impracticable, and not binding upon this court. [Ed. Note. For other cases, see Partition, Cent. Dig. §§ 265-273; Dec. Dig. § 78.*] 4. FORMER DECISION FOLLOWED.

ed in this suit.

Bill in equity by Mark W. Davis against Emma L. Palmer for partition. Heard on motion to confirm the master's report. De

to involve the dividing of this long, narrow strip of land, one end of which just projects beyond the road into six strips, each

of which would be less than 100 feet wide

and about 4,000 feet long.

[1] 3. The reference, however, in this case was not the ordinary reference in an uncontested partition suit. The five owners who appear as defendants unite in an answer

cree entered.

STEVENSON, V. C. Objection is made to confirming the master's report because he has reported that partition cannot be made without great prejudice to the owners, whereas it is insisted that actual partition can and ought to be made. All the parties were before the court and were represented by counsel on the argument of this motion, the one party contending that the master's report should be confirmed, and the premises should be sold, and the other party contending that the master's report should be set aside or disregarded. No application was made to have the cause in any event sent back to the master for further consideration, and there seems to be no reason why the court should not dispose of the case in its present aspect without any further reference to a master.

1. The premises in question consist of a farm near Hasbrouck Heights, having a width of about 550 feet and a length of about 4,000 feet. The Pollifly road runs through the easterly end of this long, narrow farm. The whole tract is adjacent to similar lands which are in the hands of real estate operators for "development," and it is no longer capable of being advantageously applied to farming purposes. Its value, about $1,000 an acre, shows that it cannot any longer be dealt with as a farm or as farm lands. The complainant Mark W. Davis is one of six equal tenants in common of the above-mentioned farm. The defendants embrace the other five tenants in common.

have supposed that the reference was in the usual form in uncontested partition suits. The depositions seem to have been taken upon the theory that any actual partition must be into six shares equal in value.

4. The rule in equity is well settled that where one tenant in common has improved a portion of the land or has wasted a portion, or where one party owns a larger share than the others, the partition often must be made so as to recognize all equities, and a division into shares of equal value may be impracticable and inequitable. Polhemus v. Emson, 30 N. J. Eq. 405.

[2] Where one party holds five shares and the other party holds one share, the question is, not whether the land can be divided into six shares of equal value, but whether the land can be divided into two shares having the ratio of value of five to one. Otherwise stated, the question is whether a portion can be set off which will be one-sixth the value of the whole tract without prejudice to the owners, and without disregarding any equities of the two parties.

[3] The distribution of parcels by lot in such a case, as well as in many other cases, where equity requires particular portions to be assigned to particular parties, is impracticable, and the use of the lot is not obligatory upon the Court of Chancery. McMullin v. Doughty, 62 N. J. Eq. 252, 257, 258, 49 Atl. 914, affirmed 63 N. J. Eq. 800, 52 Atl. 1132; Dan. Ch. Pr. (6th Am. Ed.) 1156, 1158.

Me.)

575

[4] 6. The practice approved and followed in Waln v. Meirs, 27 N. J. Eq. 351, 354, seems to be directly applicable to this case. A commission will issue in the usual form prescribed in that case, and, if the commissioners find that they cannot set off to the complainant a parcel equal in value to onesixth the value of the whole tract without prejudice to the owners, they will so report.

(79 N. J. E. 517)

EARL v. EARL.

Therefore the oath of the petitioner alone is not a sufficient foundation for a decree, nor is it sufficient to entitle the petitioner to preliminary relief, for she must on that application at least show the court that she has such a case as, if proved on final hearing, will entitle her to the relief she seeks. And this, of course, is entirely aside from the defendant's denial.

In Streitwolf v. Streitwolf, 58 N. J. Eq. 570, at page 574, 43 Atl. 904, at page 906 (45 L. R. A. 842), Judge Adams, speaking for the Court of Errors and Appeals, said: "A husband is bound to support his wife, though

1911.)

(Syllabus by the Court.)

DIVORCE (§ 214*) - ALIMONY AND COUNSEL FEES-PRIMA FACIE CASE.

When a wife, in a suit for divorce against her husband, petitions for alimony and counsel fee pendente lite, her sworn statement alone in proof of the alleged matrimonial offense is insufficient; for, in order to obtain preliminary relief, she must make a prima facie case, and, as a divorce in this state is never granted upon the uncorroborated testimony of the complaining party, a prima facie case is not made by her affidavit unsupported by other evidence. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 626-631; Dec. Dig. § 214.*]

fault. When in apparent good faith she sues him for a divorce or for separation, and sets forth a prima facie case, there is no presumption that she is in fault. She is therefore entitled to alimony pendente lite."

The motion for preliminary allowances must be denied; but, under the circumstances, the denial will be without prejudice to the renewal of the application on sufficient proof.

(108 Me. 429)

WASHBURN v. UNITED STATES CASUALTY CO.

alimony and counsel fee pendente lite. Denied.

John H. Backes, for petitioner. Eckard P. Budd and Joseph H. Gaskill, for defendant.

WALKER, V. C. This is a cause for divorce for alleged adultery on the part of the defendant. After instituting her suit, the wife filed a petition for alimony and counsel fee pendente lite. On this application the only proof offered of the alleged matrimonial offense was the sworn statement of the wife. She testifies to facts, which, if true, point conclusively to the commission of adultery by the husband. He resists the application for preliminary allowances and denies on oath that he is guilty of the offense laid to his charge.

This is not a case in which the wife is required to preponderate in the proofs on the preliminary application in order to prevail, (as in the case of Suydam v. Suydam, 80 Atl.

1057), for she sues for divorce a vinculo in apparent good faith and is a favored suitor. But, nevertheless, in order to entitle herself to alimony and counsel fee pendente lite, she must make a prima facie case, and the testimony of the injured party alone does not make a prima facie case in a suit for divorce. In this state a divorce is never granted upon the uncorroborated testimony of the complaining party. McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. 465; Hires v. Hires, 61 N. J. Eq. 491, 48 Atl. 598; Gar

1911.)

A general insurance agent, pursuant to a long course of dealing with decedent and under instructions "never to let a policy expire unless cident insurance company and attached it to told to," received a renewal receipt from an acdecedent's policy, then in the agent's safe, charging the renewal premium to decedent, crediting the amount to the company, and atDecedent intended to have the policy renewed, taching copy of the receipt to the policy register. and understood that it had been. Held, that the policy was legally renewed.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 276-291; Dec. Dig. § 145.*] 2. INSURANCE (§ 137*)-PREMIUMS-CREDIT— PRESUMPTIONS.

Credit is presumed to have been extended to insured for a premium, if the policy was delivered without requiring payment.

[Ed. Note. For other cases, see Insurance,

Cent. Dig. § 239; Dec. Dig. § 137.*]

3.

INSURANCE (8 379*)-ACCIDENT INSURANCE APPLICATION WARRANTIES ESTOPPEL BY AGENT'S ACT.

Under Rev. St. c. 49, § 93, providing that insurance agents shall be regarded as in the place of their principals, an accident insurance writing and signing an application, at applicompany is bound by its general agent's act in cant's request, containing representations as to applicant's occupation and habits.

Cent. Dig. § 999; Dec. Dig. § 379.*] [Ed. Note. For other cases, see Insurance,

Report from Supreme Judicial Court, Somerset County, at Law.

Action by Lillian J. Washburn against the

Assumpsit on an accident insurance policy for $5,000, issued to Henry Washburn, the husband of the plaintiff, and payable to the plaintiff, as beneficiary, in event of the death of the said Henry Washburn, "resulting from bodily injury effected by external, violent, and accidental means." This cause has previously been before the law court on exceptions. See Washburn v. United States Casualty Company, 106 Me. 411, 76 Atl. 902. At the conclusion of the evidence in the second trial, the case was reported to the law

court for determination.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.

George W. Gower and Turner Buswell, for plaintiff. Merrill & Merrill, for defend

ant.

WHITEHOUSE, C. J. [1] This is a suit upon an accident insurance policy for $5,000 issued to Henry Washburn, payable to the plaintiff, as beneficiary, in the event of the death of the insured, "resulting from bodily injury effected by external, violent, and accidental means." It is alleged that the insured came to his death on the 21st day of February, 1908, as the result of such a bodily injury sustained on the 19th of the same month, and in this action the plaintiff seeks to recover the amount of the indemnity for the loss of life as stipulated in the policy. The case has previously been before the law court on exceptions to the ruling of the presiding justice ordering a nonsuit. Washburn v. Casualty Company, 106 Me. 411, 76 Atl. 902. The exceptions were sustained, and the case now comes to the law court a second time on a report of the evidence presented at the former trial and certain additional testimony introduced at the second hearing. Upon so much of this evidence as is legally admissible, the law court will now finally determine all questions of law and fact involved in the case.

It will be seen, from an examination of the former opinion in this case in 106 Me. 411, 76 Atl. 902, that the only question involved in the exceptions which was argued by counsel and considered by the court was, whether the original policy, which by its terms expired January 16, 1908, a month before the death of the insured, had been renewed according to the regulations and practice of the company, and the established course of business between its agent and the insured, so as to be legally in force at the time of the accident. It was then the defendant's principal contention that its liability terminated with the expiration of the original policy. But the opinion holds that the evidence then before the court was suf

A careful examination of the additional with the former testimony, fails to disclose evidence now before the court, in connection any material fact tending in any degree to detract from or impair the force and effect of the original evidence before the court on exceptions. On the contrary, there is new and important evidence introduced by the plaintiff, which very materially strengthens the foundation upon which the former opinion was based, that the original policy had been legally renewed.

According to the former testimony, for 10 or 15 years prior to the date of the policy in suit, Mr. Griffin, the general agent of the company, had been intrusted with the entire charge of Mr. Washburn's insurance business, and kept all of his policies in his safe in a pigeonhole devoted exclusively to that purpose. Mr. Griffin stated that he had "explicit instructions" from Mr. Washburn "never to let a policy expire unless he was told to," and that under that instruction all of his policies had been renewed. It was contended in behalf of the defendant, however, that this instruction "never to let a policy expire" must be restricted in its application to the then existing contracts, and that it could not properly be extended to include new contracts of insurance, like the one in question, that might afterward be made. It further appeared that about a month before January 16, 1908, the date named for the expiration of the original policy, according to the usual course of business, Mr. Griffin received from the company a renewal receipt to continue the policy in force another year. Before the expiration of the policy Mr. Griffin duly countersigned this renewal receipt and attached it to the policy then in Mr. Washburn's pigeonhole in the safe, and January 16, 1908, charged the renewal premium of $25 to Washburn and credited the amount to the company, and also attached a copy of it to his policy register. It was in evidence that Mr. Washburn was never required by the agent to pay cash for a policy, but paid the premium only on presentation of a bill therefor, after the policy had been deposited in the pigeonhole of the agent's safe. [2] Indeed, when a policy is delivered without requiring payment, the presumption is that a credit was intended and the policy is valid. Miller v. Life Ins. Company, 12 Wall. 303, 20 L. Ed. 398. From the evidence then before the court, it satisfactorily appeared that Mr. Griffin understood that he was expected to renew this policy, and from the whole tenor of his evidence, and especially from his letter acknowledging the receipt of the plaintiff's proof of loss, it was manifest