zedure act, any assignment of error thereon must, under section 141 of the act, set out "the portion of the charge" alleged to be erroneous.

2. An assignment of error in the following form: "Because the whole charge of the said court was contrary to law and injurious to the interests of the defendant"-is not good. It alleges the parts of the charge which are unquestionably good to be as bad as the parts which may not state the correct legal principle. Such an assignment is not within section 141 of the act.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Passaic County.

William MacQueen and Rudolph Grossmann were convicted of crime, and bring error. Affirmed.

Argued February term, 1903, before the CHIEF JUSTICE and HENDRICKSON, PITNEY, and FORT, JJ.

Robert E. Hovenberg, for plaintiffs in error. Eugene Emley, for the State.

FORT, J. There are no assignments of error based upon the charge of the court in this case which this court is called upon to consider. There was a general exception taken to the charge of the trial judge, but no portions of the charge have been pointed out as erroneous and error assigned thereon.

By sections 140 and 141 of the criminal procedure act it is enacted as follows:

"140. Upon the trial of any indictment it shall be lawful to take a general exception to the charge of the court to the jury, without specifying any particular ground or grounds for such exception, and without specifying what portions of said charge are excepted to, and it shall be the duty of the judge to settle a bill of such exception, and to sign and seal the same, to the end that the same may be returned with a writ of error to the court having cognizance thereof.

"141. It shall be lawful where such a general exception has been taken to assign any error or errors of law upon any portion of the charge so excepted to."

P. L. 1898, p. 916.

It will be seen that upon a general exception to a charge it is made lawful to assign error on any portion of the charge so excepted to. In this case the counsel of the defendants assign error on the charge only in this general way: "Third. Because the whole charge of the said court was contrary to law and injurious to the interests of the defendant.". Such an assignment is of no force, and does not assign error "upon any portion of the charge so excepted to." It assigns error upon the whole charge, alleging it as a whole to be bad and injurious to the defendant. An assignment of this kind is a mere conclusion-a mere statement of an alleged result; not a pointing out of any error complained of. We have, however, considered the charge of the court with care, and find no error of law as therein stated.

The assignments of error as to alleged il

1. In condemnation proceedings, property owners whose title depends on conveyance from the heirs of a former owner cannot contest the title of other heirs whose interest they have not acquired.

2. A purchaser of the interest of a person who has not been in adverse possession for 20 years, but for only a part thereof, does not thereby acquire a title superior to the holder of the paper title.

3. Where a relationship of confidence is shown to exist between holders of the paper title to property, one of them cannot acquire an outstanding title, and use it for the purpose of defeating his co-tenant's rights, though they hold by distinct conveyances.

Condemnation proceedings by the United New Jersey Railroad & Canal Company against the Consolidated Fruit Jar Company. On exceptions to the master's report. Modified.

Alan H. Strong, for Clark. Mr. Booraem, for Consolidated Fruit Jar Co. Willard P. Voorhees, for Smith & Welsh.

STEVENS, V. C. This case comes up on exceptions to the master's report. The facts are so fully stated by the master that I shall not here repeat them. The controversy is over the division of money paid into court by the United New Jersey Railroad & Canal Company on a condemnation proceeding. This money was paid out to Smith & Welsh under an order of this court, obtained upon an imperfect presentation of the facts. The order was opened, and the case is to be decided as if the fund were still in the hands of the clerk. No question is raised as to the form of the proceeding; the jurisdiction of the court over the matter in controversy being, of course, indisputable.

The question whether Smith & Welsh were entitled to be paid the whole of the fund depends upon whether they were the owners of the land condemned. They claim title in three ways: (1) Because they are grantees

the heirs of Alpheus Freeman, who, it is admitted, died seised of the lands in 1813. (2) As to tracts A and B, because the Consolidated Fruit Jar Company deeded its title,

acquired by adverse possession, to them; and that title is, it is said, good against those heirs. (3) As to tract C, because one Martin A. Howell acquired title by adverse possession as against the same heirs, and his executors conveyed that title to Smith & Welsh.

Mr.

In 1892 it became known that the Pennsylvania Railroad Company would require an additional strip of land on each side of its track between its present passenger station and the Raritan river. Smith & Welsh conceived the idea of getting the title of the Freeman heirs to this land, and selling it to the company, which did not at that time have the power to condemn. Accordingly Mr. Grimstead, their attorney, began to bargain for deeds from the numerous heirs of Alpheus Freeman. One of those heirs was Mary T. Clark. The evidence shows very plainly that Mr. Grimstead secured the cooperation of James P. Clark, Mary's husband, in his work of investigation. Grimstead obtained many deeds for Smith & Welsh, and Clark, with the knowledge and approval of Mr. Grimstead, secured deeds from some of the heirs himself, and thus became entitled to 6/77 of the land. Mary T. Clark's interest was 2/77. This appears not only from Mr. Grimstead's letters, but also by a deed prepared by him, which is dated May 11, 1894, made between James P. Clark and Mary, his wife, and Philip Smith and Patrick M. Welsh. In this deed it is recited that Mary Clark and James P. Clark's grantors are tenants in common with Smith & Welsh, and they agree to join in a deed to the Pennsylvania Railroad Company. Smith & Welsh did not sign this deed, and they now say they did not know of it; but Mr. Grimstead testifies that he put it on record at Smith's request, and I have no doubt whatever that it was obtained in furtherance of their general plan of proceeding.

If the money in court represents the value of the title of the heirs of Alpheus Freeman, there can be no doubt but that Mr. and Mrs. Clark are entitled to 8/77 of it. It is claimed, however, that notwithstanding the fact that Smith & Welsh took deeds from the heirs of Alpheus Freeman, and paid in the aggregate several thousand dollars for them, those heirs did not, in fact, have any title, and that consequently Mr. and Mrs. Clark have no right to a share of the money, and so the master reported.

I will consider this contention first with respect to tracts A and B. The original title of Alpheus Freeman is beyond all question. That title appears to have been recognized by the New Jersey Railroad Company as late as May, 1836, for in that month commissioners appointed by the Chief Justice of the Supreme Court awarded for the right of way then taken, to the widow of Alpheus Freeman, $1,500, and to his heirs $1,750. The land on both sides of the track for some years after that remained open. Some time between 1845 and 1850 it was partially

fenced by Martin A. Howell, but the fencing inclosed the land of the railroad company as well; its tracks at that point being laid above grade, on a bridge or trestle. The fence appears to have been put up for the purpose of preventing a nuisance. Howell had shortly before built a paper factory to the north of the railroad tracks, and he made some use of the land under and on both sides of them for storing clay and dumping ashes. In 1873 he leased his factory property to the Consolidated Fruit Jar Company, which held under leases until 1880, when it took title by a description which it is admitted did not include the locus in quo. A perusal of the evidence will show that, if Howell had adverse possession of the land in controversy, such possession commenced when he fenced, and that was prior to 1850, so that, when he conveyed to the fruit jar company the adjoining factory property, his title had become indefeasible. It is admitted he did not convey the land, if thus acquired, to the fruit jar company. Smith & Welsh are therefore placed in this dilemma: If Howell had title, the money paid into court did not represent that title, for Howell's heirs (he having died in 1889) were not parties to the condemnation proceeding, and their title was not condemned. Inasmuch, therefore, as the money represents nothing but the Freeman title, it does not lie in the mouths of Smith & Welsh to deny the right of the Clarks to share in it. If, on the other hand, Howell had no title and he never appears to have claimed any-then, of course, the title being indisputably in the Freeman heirs, the Clarks take their share of the money, as a matter of course.

It is argued, however, that under the decision of Davock v. Nealon, 58 N. J. Law, 21, 32 Atl. 675, the Consolidated Fruit Jar Company could tack its possessory title of less than 20 years to the possessory title of Howell, and that in this way it became the owner of the land by 20 years' adverse possession had prior to the year 1895, when the condemnation proceedings were taken. The difficulty with this contention is that, if the evidence shows that Howell had adverse possession from 1875 to 1880, the year in which he conveyed to the fruit jar company, it also shows that he had such possession for over 25 years prior thereto. His possession was of precisely the same character prior to 1875 as it was after 1875, and so he must have become absolute owner at least 10 years before the conveyance. And so it is not a case of tacking one possession of less than 20 years to another possession of less than 20 years, so as to make a title absolute in the second possessor. The master, whose report indicates that he gave the case careful consideration, appears to have overlooked this.

I think it quite plain that, in any view of the matter, the Clarks are entitled to their share of the money representing tracts A and B.

The situation of strip C is somewhat different. The evidence indicates that Howell did claim to be its owner for several years prior to his death. This strip, which is only part of the tract conveyed by his executors to Smith & Welsh in June, 1894, lies between Water street, on the west, and the Raritan river, on the east, and the canal runs through it. Its frontage on Water street is 38 feet. Of this frontage, only 10 feet were taken by the railroad company. Smith & Welsh paid $2,000 for the entire tract. The jury awarded $3,676.21 for the portion of it taken, the commissioners having given still more. It will thus be seen that the executors were content to take, for such title as their testator had in it, a sum much below its market value. The evidence relating to this branch of the case is as follows: Van Duzen testifies that in 1873 he made a bargain with John R. Howell, a son of Martin Howell, to store some bricks upon the property. Kenny testifies that in 1874 or 1875 one Schenck started a coalyard there. Fisher testifies that when he came to New Brunswick in 1881 the land in question was occupied by one Cole for a stoneyard. In 1885 the fruit jar company and Howell used the property for the storage of brick. After 1885 the property was occupied by John R. Howell for a coal and stone yard. Back of 1873 the evidence of possession is extremely vague. Mr. Louis Howell, a nephew of Martin Howell, testifies that in 1844 the property was all open, and not docked out; that it was not docked out as late as 1862, but was docked out at some indefinite period after that. The property appears to have been fenced at the time that Schenck came there in 1874. Prior to 1873, I doubt very much whether the evidence shows anything more than that, the land being open, any one who wished to make a temporary use of it could have done so. Prior to that time I do not find any tangible evidence of hostile and exclusive possession on the part either of Martin Howell or of his sons. After that time, Howell, who owned dock property north and south of it, appears to have taken possession. Possibly, on the principle laid down in Davock v. Nealon, 58 N. J. Law, 21, 32 Atl. 675, Howell's heirs or devisees (the will is not in evidence) might be deemed to have gained title by adverse possession. But Howell died in 1889, and the deed to Smith & Welsh was not made by his heirs and devisees, but by his executors. It purports to convey by virtue of the power and authority given in the will. It does, indeed, declare that it conveys the right, title, and interest of the party of the first part, viz., Frederic De Coppet, Abel I. Smith, and the widow, as well as of the testator; but what that interest, if any, is, does not appear. As no title by adverse possession for 20 years prior to 1889 is shown, it cannot be asserted that by this deed Smith & Welsh acquired a title superior to the paper title held in common with the Clarks. The evi

dence as to all the land condemned would indicate that Smith & Welsh first acquired title from the Freeman heirs, availing themselves of the assistance of the Clarks in so doing; that, having got this title, they used it to make an advantageous bargain with the fruit jar company, to whom they paid nothing, and with the Howell estate, to whom they paid $2,000; and that, being thus fortified with the appearance of an adverse title, they utilized that, first, by means of a bill to quiet title, to cut off those Freeman heirs (except the Clarks) who had not conveyed to them; and, secondly, to bar the Clarks from any share of the condemnation money. Even if the title by adverse possession were clearer than it is, I do not think Smith & Welsh could use it for the purpose of defeating the Clarks' right. They were tenants in common with the Clarks of the paper title. They expressly admitted this relationship in the sealed instrument to which I have already referred. If this tenancy in common did not of itself create a relation of a trust or confidence, the letters and action of Mr. Grimstead, no less than Clark's letters, show that such a relation did, in point of fact, exist. It appears that, after Smith & Welsh had obtained the conveyances I have mentioned, they filed a bill to quiet title against the heirs of Alpheus Freeman who had not conveyed to them. Mr. Grimstead, their solicitor in that suit, did not make the Clarks parties, because, as Mr. Grimstead says, "it might prejudice any claim he [Clark] had in the property." "I would not make him a party defendant," he testifies further, "because I did not want to cut off any interest he might have. I wished to preserve to him any right, title, or interests or claim which he might have to this property, or any portion of it, intact, which he could enforce at any time he saw fit." Mr. Grimstead says, indeed, that he told Clark he could not make him a party complainant, because his interests were antagonistic to the interests of Smith & Welsh, but this must be a mistake. If they were antagonistic, they were antagonistic for the same reason that the interests of the other heirs were antagonistic. This would be a reason for making them parties defendants, and not a reason for not making them parties at all. Unless I attribute want of good faith to Mr. Grimstead, I must conclude that the Clarks were not made parties because Mr. Grimstead really wished, as he says, to preserve, and not to destroy, their interest, inasmuch as they were allies, and not enemies. It is perfectly plain that at that time he desired and obtained their assistance in a common undertaking. The very purpose of filing the bill would have been defeated by making them parties defendant, for they would then have resisted the suit, and in doing so might have established not only their own right to part of the money, but that of the heirs who had not executed conveyances. It is well settled that,

as a general rule, one tenant in common will not be permitted to purchase a superior outstanding claim for his own exclusive benefit. Freeman on Co-Tenancy, § 154. If the tenants claim, as here, under separate conveyances, it has been doubted in some of the cases whether a relation of confidence should be held to arise out of the mere fact of common ownership. In Bracken v. Cooper, 80 Ill. 221, and Montague v. Selb, 106 Ill. 50, it was held that the fact that title was derived through separate conveyances made no difference. It is not necessary to decide this question, for here, as I have stated, a relation of confidence did in fact exist, and, according to all the cases, this would prevent the tenant purchasing the outstanding title from claiming the exclusive benefit of his purchase.

I think the order directing the payment of the money to Smith & Welsh should be so modified as to permit the Clarks to come in and share in the fund on making proper contribution. They have offered to recognize the agreement made with the fruit jar company, and I think they should contribute to the payment made to Howell's executors.

(69 N. J. L. 490)

HODGE v. WETZLER. (Supreme Court of New Jersey. June 8, 1903.) MARRIED WOMEN-ENTICING AWAY HUSBAND -RIGHT OF ACTION.

1. A married woman could not, at the common law, maintain an action for enticing away the husband and for the alienation of his affections.

2. Nor is such a right of action conferred upon a married woman in this state under the niarried woman's act (Gen. St. p. 2012), or under the twenty-fourth section of the practice act (Gen. St. p. 2536).

3. The demurrer to a declaration setting forth such a cause of action in this case was sustained.

(Syllabus by the Court.)

Action by Alphine Hodge against Leana Wetzler. Demurrer to declaration sustained.

Argued February term, 1903, before GUMMERE, C. J., and FORT, PITNEY, and HENDRICKSON, JJ.

Warren Dixon, for plaintiff. Corbin & Corbin, for defendant.

HENDRICKSON, J. This action is brought by the plaintiff, a married woman, against the female defendant, to recover damages for the alleged alienation of the husband's affections and the resulting loss of his society, comfort, aid, assistance, and support. There are two counts to the declaration, each setting forth substantially the same cause of action, the only difference being that in the first count there is added to the averment of enticing away the husband, etc., the more aggravated charge of criminal conversation. The gist of the action is the same

1. See Husband and Wife, vol. 26, Cent. Dig. 1119. 55 A.-4

in either case, and that is the loss of “consortium" or the society and comfort of the husband. There is a demurrer to each of the counts. The causes of demurrer are (1) that no such action at law can be brought by the wife; and (2) that the husband is not joined in the action as coplaintiff. This right of action has been known to exist at the common law in favor of a husband against a seducer of his wife's affections since the decision in Winsmore v. Greenbank, Willes, 577, in the year 1747. But no case appears in the long line of English decisions where the wife has brought a corresponding action for a similar invasion of her marital rights. This is not surprising when we reflect upon the disabilities which attached to the wife as a result of coverture, under the common law; for in order to obtain redress for torts to her person or reputation it was necessary for the husband to join in the action, and the damages, when recovered, if collected in his lifetime, belonged to the husband. To have entertained an action of the character we are now considering in favor of the wife it would have become necessary to join the husband, and thus enable the wrongdoer to realize a profit from his own wrongdoing. We find no allusion to the existence of such a right of action in favor of the wife, in the decisions and treatises upon the common law, until the appearance of a dictum of Lord Campbell in the case of Lynch v. Knight, 9 H. L. Cases, 577, which was decided in 1861. The action was for slanderous words affecting the character of the wife. whereby it was alleged that she had lost the affection and society of her husband. It must be observed that in this case the husband joined the wife in bringing the action "for conformity," as there was no enabling act authorizing her to sue. Lord Campbell said: "If it can be shown there is presented to us a concurrence of loss and injury from the act complained of, we are bound to say this action lies. Nor can I allow that the loss of consortium or conjugal society can give a cause of action to the husband alone." In a subsequent portion of his decision he says that the better opinion is that a wife could not maintain or join in an action for criminal conversation against the paramour of her husband who had seduced him. Lord Cranworth was strongly inclined to think that the view expressed by Lord Campbell was correct, but did not feel called upon to express a decided opinion, as it was agreed that the judgment of the court should be put upon another ground. Lords Brougham and Wensleydale expressed the view that the action would not lie. In the American cases there has been developed a divergence of views as to whether the married woman had the right of action at common law for the alienation of her husband's affections. This right is denied in the following, among other, cases: Lellis v. Lambert, 24 Ont. App. 653; Morgan v. Martin, 92 Me. 190, 42 Atl.

354; Doe v. Roe, 82 Me. 503, 20 Atl. 83, 8 | L. R. A. 833, 17 Am. St. Rep. 499; Crocker v. Crocker (C. C.) 98 Fed. 702; Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522, 8 L. R. A. 420, 20 Am. St. Rep. 79; Mehrhoff v. Mehrhoff (C. C.) 26 Fed. 13; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328, 26 L. R. A. 412, 46 Am. St. Rep. 468. Among the cases where this right is held to have existed are the following: Foot v. Card, 58 Conn. 4, 18 Atl. 1027, 6 L. R. A. 829, 18 Am. St. Rep. 258; Haynes v. Nowlin, 129 Ind. 584, 29 N. E. 389, 14 L. R. A. 787, 28 Am. St. Rep. 213; Postlewaite v. Postlewaite, 1 Ind. App. 473, 28 N. E. 99; Smith v. Smith, 98 Tenn. 101, 38 S. W. 439, 60 Am. St. Rep. 838; Bassett v. Bassett, 20 Ill. App. 543; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553. In the majority of these cases, and in a large number of others noted in 15 Am. & Eng. Enc. (2d Ed.) 865, notes 3 and 4, it has been held that by reason of the disability of coverture the right of action remained in abeyance, and could not be prosecuted by the feme covert in her own name. But it bas been generally held in these cases that, where the ban of coverture has been removed by enabling statutes giving her the right to sue as a feme sole, she may maintain this action.

This case is one of first impression in this state, for although McKenna v. Algeo (Feb., 1902) 51 Atl. 936, was a similar action, the case was heard upon a motion for a new trial, and the opinion shows that the right to bring the action was not considered by the court. The new trial was granted upon another ground. We are entirely satisfied, both upon principle and authority, that, whatever may be the true theory of the wife's right of action in the abstract at common law, no remedy then existed whereby such right of action could be maintained. We do not deem it necessary in this case to discuss the question of abstract right just alluded to, for the reason that, conceding its existence, we fail to find a statute of this state empowering a married woman to sue as a feme sole in

actions of this character. I may say that it was conceded on the part of the demurrant that the right of the wife to maintain this action at common law was at least debatable; but it was contended that such right arises under section 11 of an act entitled "An act to amend the law relating to the property of married women" (Gen. St. p. 2012), and under section 24 of the practice act (Gen. St. p. 2536).

It is contended that the "consortium" may be regarded as property, and that therefore the former act will apply. The section provides "that a married woman may maintain an action in her own name and without joining her husband therein for all breaches of contract, and for the recovery of all debts, wages, earnings, money and all property, both real and personal, which by this act is declared to be her separate property, and for

all damages done thereto, and she shall have in her own name, the same remedies for the recovery and protection of such property as if she were an unmarried woman; and in any civil or criminal proceedings it shall be sufficient to allege such property to be her property." Under that act, sections 1, 2, 3 and 4 define what is meant by separate property, to wit, real and personal property, and the rents, issues, and profits thereof, which she receives or obtains "by purchase, gift, grant, devise, descent, bequest or in any manner whatever"; also, her wages and earnings and the investment thereof. In the interpretation of statutes like this, though they may be regarded as remedial in character, being in derogation of the common law, they must be construed strictly. Alpaugh v. Wilson, 52 N. J. Eq. 424, 28 Atl. 722; 23 Am. & Eng. Enc. of L. 386-389. We must also have regard to the fact that notwithstanding this and other statutes have been passed removing, in many respects, the disabilities of a feme covert, it is held by our courts "that the rule of the common law that the husband and wife are to be regarded as one person has not been abrogated in this state." Alpaugh v. Wilson, supra, affirmed. 52 N. J. Eq. 589, 33 Atl. 50. The property intended by this act is so earmarked by the words "real and personal property," "separate property," "the rents, issues and profits thereof," as to leave no doubt but that the words "real and personal property" are used in their ordinary, natural meaning as indicating property that has a present money value, and from which income and profits ordinarily arise. It would be giving the words an exceedingly broad and unusual meaning, under the circumstances, to have them embrace within their meaning the "consortium," which at most is only a marital right growing out of the marriage relation. It was held by the Court of Errors in Penn. R. R. v. Goodenough, 55 N. J. Law, 577-588, 28 Atl. 3, 22 L. R. A. 460, that the language of the above section is inapplicable to a right to sue for a tort, on the ground that no rent, issue, or profit, in the sense of the statute, can arise out of a tort. It seems clear that the section in question fails to confer the right to bring this action. We turn to the twenty-fourth section of the practice act, which provides that any married woman "living separate from her husband" may bring suit in her own name for the recovery of damages for any injury done to her person or reputation. The injury complained of does not purport to be one to plaintiff's reputation. Is it an "injury to her person," within the meaning of the statute? The cause of action complained of is the alleged violation of conjugal rights. Clearly, it is not an "injury to the person," in the strict sense of the term, but to the relative rights of the individual. If it be contended that the words "injury to the person" are equivalent to the expression "injury to personal