hearing the large sand seam had been crossed, valves inserted, the water brought under perfect control, and the shaft had reached a depth of 750 feet." The brief also stated that (presumably at the time the brief was prepared) the shaft had been sunk to its full depth, that mining was going on, and that upon but one occasion since the filing of the bill had the processes in use failed to obviate the objec

tionable discoloration of the waters of the stream. A further statement is thus made on behalf of the mine owner, to wit, that after the issuance of the preliminary injunction, "to secure themselves against the remote possibility of having to stop their operation, the defendant bought a tract of land along the Walkill, to construct thereon a settling basin." For the system for which provision has thus been made the defendant claims entire efficacy in preventing the discoloration complained of; and as this claim is amply fortified by testimony, and is not in any wise controverted by the complainant, the case presented is one of extreme simplicity, and involves none of the difficult questions that arise when it is impracticable for a landowner to get out his minerals without doing some injury to the rights of others. When it is further considered that the

defendant's mine is not riparian property, the nice questions arising from that source are also eliminated. In fine, the only proposition presented by the state of facts before us is that a nonriparian mine owner may not artificially cause the injurious discoloration of a natural water course, if, by the use of practicable means within his knowledge and under his control, he may carry on his mining operations without injury to the rights of others,-a paraphrase of the maxim, "Sic utere tuo ut alienum non lædas."

Upon this ground the decree of the court of chancery is affirmed.

RENK v. RENK.

(Court of Chancery of New Jersey. Oct. 4, 1897.) DIVORCE-GROUNDS-DESERTION-SUFFICIENCY OF EVIDENCE.

In an action by a wife for divorce for desertion, in which no defense was made, it appeared that she had abandoned him, and she justified her act on the ground of cruelty. The evidence showed that he was not inclined to quarrel, and that she had become very nervous. She testified that, two or three years before the separation, he threatened to shoot her, and drew a pistol. Her brother-in-law, who was present, testified that they had a violent word quarrel; that the husband got a pistol, which was not loaded, and tried to load it; and that he at no time pointed it towards his wife, or threatened to shoot her, but declared he would shoot himself, and that he could not endure living with her longer. On the morning before separating they had a violent quarrel, during which she struck him with an iron stove-lid lifter. Their son testified that she hit her husband in the forehead, and threw, or attempted to throw, a cup at him, and that he did not strike her, but caught her and held her up against the wall, and asked witness to go for an ambulance and have her taken to an in

PITNEY, V. C. The ground of the petition is desertion by the defendant. The admitted fact is that the petitioner and defendant were living together in a flat in New York City, and on the 3d of January, 1893, she deliberately rented a house in Jersey City, and moved all her belongings from the New York flat to her new home in Jersey City, and has there resided ever since. In other words, the actual abandonment was by the wife, of the husband. The proof is that the husband remained in the New York house two or three days after his wife left, and then also left it. The wife justifies her conduct, and seeks to charge her husband with constructive desertion, on the ground that he treated her with such cruelty as substantially to drive her away from their home, relying upon the principle illustrated by the line of decided cases which had their culmination in this state in McVickar v. McVickar, 46 N. J. Eq. 490, 19 Atl. 249. The parties were married in 1881, and lived together until 1893, a period of nearly 12 years; the wife bearing five children, of whom two are living,-the oldest, a boy, born in 1882, who was sworn as a witness. The wife supported the family, in whole or in part, by following the trade of a dressmaker. The husband was a cigarmaker, and, according to her account, furnished very little towards the expenses of living. last two or three years of their cohabitation, the wife, by reason of the drain upon her vital energies due to child-bearing, and her exertions to support the family, became very nervous. The husband was of an excitable disposition, but not inclined either to drink or to associate with other females; and, according to the testimony of the son and of the petitioner's brother-in-law, he was an honest, "square" man, and by no means inclined to quarrel. The son said that his father would rather run out of the house than fight. The wife testifies to a series of acts of physical violence committed by the husband upon her as the result of quarrels arising between them, mostly, as appears, on the occasion of complaints on her part that he did not contribute more money to the support of the family. On one occasion, about two or three years before the separation, she swears that he threatened to shoot ber, and drew a pistol for that purpose. But her brother-in-law, who was present, swears that they had a violent word quarrel, and that the husband did get a pistol out

During the

of the closet, which was not loaded, and attempted, without success, to load it; that he at no time pointed it towards the petitioner, or threatened to shoot her, but did declare that he would shoot himself, and that he could not endure living with her any longer. the morning before the final separation they had a violent quarrel, arising, as I infer from the wife's evidence, from the same cause,failure on his part to contribute sufficient towards the family expenses. She admits striking him at that time with an iron stove-lid lifter. The son says that she hit him in the fcrehead, and she also threw, or attempted to throw, a cup at him, which was broken; that the father did not strike her, but that he was struck with the iron implement, caught her and held her up against the wall, and asked the boy to go for an ambulance and have her taken to an insane asylum. Taking all the evidence together, I think the master was entirely justified in coming to the conclusion that the wife was more to blame than the husband for the quarrels, and that there was no such treatment on his part as justified her in abandoning him. When served with notice of this action the husband stated, as he had previously stated, that he was glad to be rid of the petitioner, and admitted that he had himself abandoned her. This is clearly untrue, and cannot avail the petitioner in this case. The exceptions will be overruled.

WILSON v. STATE.

(Court of Errors and Appeals of New Jersey. Sept. 20, 1897.)

Dissenting opinion. For majority opinion, see 37 Atl. 954.

GARRISON, J. (dissenting). The question upon which this court is divided is whether the intoxication that may be considered by the jury upon the degree of murder must be such as rendered the defendant incapable of forming an intention to kill, or whether it may be such as satisfies the jury that, as matter of fact, such an intention did not exist.

The trial judge adopted the former of these views, and charged the jury that the intoxication that might be considered with reference to the existence of premeditation was a condition of the defendant in which "his faculties were prostrated, and he was rendered incapable of forming a specific intent to take life." This view has been, in almost identical language, embodied in the opinion that speaks for the majority of this court.

I think that the other view is the correct one, and that, upon the question of degree, the issue was whether, as matter of fact, the defendant had formed a specific intent to take life, and not whether he had proved that he could not have formed it. The burden of proving the defendant's guilt, and the quantum of such proof, were in no wise shifted or varied by the introduction of the defendant's

| testimony as to his intoxication. The fact of intoxication was merely an added circumstance, which, if proved by the weight of evidence, should have been considered by the jury in connection with the question of intent, the burden of proving which beyond a reasonable doubt was on the state.

Such "a reasonable doubt," as was said in the case of Warner v. State, 56 N. J. Law, 686, 29 Atl. 505, "might spring out of the drunkenness of the defendant." And it must be apparent to every mind that there are states and stages of intoxication that would excite the gravest doubts as to the existence of deliberation and a premeditated purpose, and yet would not warrant the conclusion that the formation of such a purpose was beyond the capacity of the individual. To deny this efficacy to the defendant's testimony was to do him a legal injury. And in this connection it should be borne in mind that intoxication is not a defense, as insanity is; and hence the doctrine of Graves' Case, 45 N. J. Law, 203, does not apply.

But, apart from this, the effect of the substitution of the mental capability of the defendant for his actual mental state was an injurious shifting of the issue. By its indictment and by its proof the state said to the defendant, "You formed a specific intent to take human life." To this the direct and obvious traverse is, "I did not," and upon this issue all relevant testimony would be considered. But if the only answer permitted to the defendant were, "I could not," a totally different issue was presented, and the defendant was denied all benefit from the testimony going to show that "he did not," unless he also proved that "he could not."

A yet more fundamental injury to the defendant in thus shifting the issue was that it relieved the state from the burden of proving premeditation beyond a reasonable doubt, and compelled the defendant, in that respect, to prove his innocence beyond all doubt. That this was the practical and logical effect of requiring the defendant to prove that his faculties were so prostrated that he was incapable of premeditation is clear. For if, in addition to proving by weight of evidence the fact of his intoxication, he must also, by like proof, satisfy the jury that the state of mind engendered by this fact was one that rendered him incapable of premeditation, he must establish by preponderance of proof the negative of that which the state was bound to prove beyond a reasonable doubt; and, if he thus proved that he could not have formed the specific purpose ascribed to him, it followed beyond all doubt that he did not form it.

Briefly outlined, these are the considerations that constrain me to dissent from the majority of my brethren.

The only case in this court that has been cited gives strong support to the view for which I contend. I refer to Warner v. State, 56 N. J. Law, 686, 29 Atl. 505.

In the Warner Case, which was affirmed in this court, the trial judge charged the jury that "if the defendant was mentally capable of conceiving a design to take the life of the woman, and if he did conceive such a design, and if you are satisfied that, in pursuance of a design thus conceived, he purposely inflicted the fatal blow, then he was guilty of murder of the first degree; whereas, if you find that he was incapable, from the condition of his mind, of conceiving such a purpose, or that in point of fact he had not fully conceived such a purpose, then he is not guilty of murder of the first degree." See citation made by Mr. Justice Reed in his opinion. 56 N. J. Law, 687, 29 Atl. 506. The distinction thus made was carried into the abstract of his opinion by the careful justice who prepared it. See the syllabus, page 686, 56 N. J. Law, and page 505, 29 Atl.: "If an intoxicated person has the capacity to form an intent to take life, and conceive such intent, it is no ground for reducing the degree of his crime to murder of the second degree that he was induced to conceive it, or to conceive it more suddenly, by reason of his intoxication." And in the body of the same opinion the general answer to the defendant's assignments of error is that "the point was clearly presented to the jury that the question was whether there existed a design to take life."

In the case of Marshall v. State, 59 Ga. 154, it is impossible from the opinion to tell what question was before the court, or how it arose. The only reference to a record is contained in the judicial declaration, "The record which the counsel has brought to us drips with blood." Under this sanguinary influence the law with respect to intoxication is thus announced: "The degree of drunkenness shown by the evidence * * * was not great, but, had it been the utmost possible degree consistent with the power of discharging a pistol, the law of the transaction would have been the same." I am unable to see how the power to discharge a pistol becomes a test of the formation of a specific intent to take human life, but the proposition logically paves the way for the general rule with which the opinion concludes, viz.:

"To be too drunk to form the intent to kill, the slayer must be too drunk to form the intent to shoot." I cannot join with the court that in Hanvey v. State, 68 Ga. 614, "cited this utterance with approval."

In Martin v. State (N. J. Sup. Ct.; Nov. Term, 1883) no opinion is reported or on file; but, inasmuch as error was not assigned upon the charge of the trial court with respect to the effect of intoxication, the propriety of the charge in that respect could not have been judicially considered, and hence was not affirmed.

In the well-considered case of Haile v. State, 11 Humph. 154, the precise point is discussed as the psychological question that it is, and the judgment of the trial court was

reversed because of a charge substantially identical with that now before us. The conclusion there reached was that "the degree of drunkenness that may shed light on the mental state of the offender is not alone that excessive state of intoxication which deprives a party of the capacity to frame in his mind a design deliberately and premeditately to do an act. All murder of the first degree must be perpetrated willfully, deliberately, maliciously, and premeditately. The jury must ascertain, as a matter of fact, that the accused was in this state of mind when the act was done."

I have not found an authority that shakes the soundness of this conclusion, and my attention has not been directed to any line of reasoning that tends to the opposite result.

I am authorized by the CHANCELLOR, and by Justices DIXON, LIPPINCOTT, and COLLINS, and by Judge BARKALOW, to state that they concur in the views here expressed.

1. Where an answer is prayed under oath, and defendant denies a material allegation of the bill, complainant must plead further, or offer proof in behalf of the allegation.

2. An allegation that "defendant now brings the money into court" is equivalent to an allegation that defendant, either in person or by solicitor, walked into the court with his answer, and brought the money with him, and, with the answer, delivered it to the clerk.

3. In a bill to foreclose, where defendant has pleaded a tender into court of the amount due, and the case has been on the docket for several years after the pleadings were settled, the record of the moneys paid into court may be inspected to ascertain whether defendant's money was actually received and disposed of in accordance with the statute and the court rules.

4. Where the amount due is voluntarily paid into court by the owner of the equity of redemption in a bill to foreclose, and the payment itself and its purpose is pleaded in the answer, there need not be a special order of the court by the chancellor on notice to the complainant, rule No. 34 requiring the clerk to give immediate notice to the chancellor of all moneys paid into court.

Bill by John H. Neldon against James Roof and wife to foreclose a mortgage. Decree for defendants under the defense of a tender of the amount due.

C. J. Roe, for complainant. C. M. Woodruff, for defendants.

PITNEY, V. C. This is an ordinary bill to foreclose, by an assignee of the mortgage against the owner of the equity of redemption by conveyance from the mortgagor. The mortgage is dated November 24, 1886, payable in one year, with interest from April 1, 1886. Complainant's title as assignee accrued

October 20, 1887. Defendant became the purchaser of the equity of redemption about the 1st of March, 1888. The bill was filed May 25, 1888, and the answer on the 17th of July, 1888, since which, and until the present year, the cause has slept, and then was stirred by the defendant. It is inferable from the statements of the bill and answer that the amount originally in controversy was two dollars. The bill alleges that the complainant took an assignment of the mortgage by request of one Taylor, then the owner of the equity of redemption, and that a parol contract was then entered into between him and Taylor, by which the payment of the mortgage was extended to the 1st day of April, 1888. Taylor, the party with whom the contract was alleged to be made, was not made a defendant. Answer is prayed for under oath, and the defendants, by their answer, deny the making of the contract with Taylor, and all knowledge thereof on their part. This puts the allegation in issue, and, no replication having been filed or proof offered in behalf of the allegation, it must, for present purposes, be held that there was no contract of extension. This renders it unnecessary to consider the question--well argued by defendants' counsel -whether such a contract, if proven, would have been binding on defendants, who purchased the premises without notice of it. The bill alleges that the amount due is the principal sum of $600, and interest thereon from the date of the bond and mortgage, which would be from November 24, 1886. But the bill also alleges that the bond which the mortgage was given to secure provided for the payment of interest from the 1st of April, 1886. This discrepancy is immaterial, because defendant, in his answer, admits that when he purchased the premises, about the 1st of March, 1888, the amount due was $600, with interest from April 1, 1886, amounting on the 10th of March, 1888, to the sum of $70, making $670 in all; and alleges that on the 9th of March, 1888, he offered to pay and tendered the same, to wit, the sum of $670, to the said complainant, as and for the payment in full satisfaction of all moneys then due on the said mortgage, and the said complainant then and there wholly refused to receive the same. The answer further sets up that on the 5th of April, 1888, and before the commencement of the suit, the defendant, at the place of business of the complainant, again offered to pay and tendered to the complainant said sum of $670, being the said principal sum of said mortgage, and all the interest due thereon to the said 9th day of March, 1888, being the date of the first tender, as and for the payment and full satisfaction of the said mortgage, and all money, both principal and interest, due thereon; and the complainant again then and there wholly refused to receive the same. Then follows this allegation: "And this defendant further says that ever since said 9th day of March, 1888, the time of the said offer to pay and tender, he has at all

times been ready to pay the same, and is still ready so to do, and now brings the same into court." The allegations of the answer in this respect are not put in issue, and must be taken to be true.

The points made against the defendant's position are:

1. That the tender was not good, because not made by the original mortgagor and obligor. I am unable to see any point in this. It was made by the owner of the equity of redemption, against whom this foreclosure is sought. It was made for the purpose of freeing and discharging his premises from the lien of the mortgage, and, if properly followed up, is a clear defense to this action. where the party making the tender has, under the English practice, demanded a reconveyance, the question has sometimes arisen whether he was the party entitled to redeem and have the reconveyance. No such question arises here.

2. That there is nothing by which it appears that the money has been actually paid into court. Admitting, for present purposes, that payment into court is a necessary part of defendant's case, the question is whether the allegation in the answer above set forth, which, for present purposes, must be taken to be absolutely true, is sufficient, viz. that "the defendant now brings the money into court." The fair construction of that language is that the defendant, either in person or by solicitor, walked into the court with his answer, and brought the money with him, and delivered it with the answer to the clerk. The answer could not state that the money was received by the clerk, and disposed of according to the rules and practice of the court. That this was done in the regular course of the business of the office, it seems to me, should be presumed. But I think that in the present posture of the case we may and should resort to the record of the moneys paid into court, exhibited in the accounts of the clerk and court's depositary of its moneys, to ascertain whether in this case the moneys were actually received and disposed of in accordance with the statute (section 102 of the chancery act) and the standing rules of the court (Nos. 33 and 34). Such inspection shows that the sum of $670 was actually received by the clerk from the defendant at the filing of the answer, paid in to the court's appointed depositary for moneys under the statute, and credited to the proper account; it thus appearing that the money was actually paid into court, and there remains, subject to the power and disposition of the court.

The next objection made is that there could be no efficient payment of the money into court without a special order of the court by the chancellor, upon notice to the complainant. This contention raises an important question of practice, which has been carefully considered. In my judgment, the object of all of the rules on this subject, as shown by the discussion in National Docks & N. J. Junction Connecting Ry. Co. v. United New Jersey Railroad & Caual