resident of the state. Wallace v. Wallace, 65 N. J. Eq. 359, 54 Atl. 433; Hunter v. Hunter, 64 N. J. Eq. 277, 281, 53 Atl. 221. The facts which I have stated in this case, in my opinion, establish a presumption that the petitioner has been boarding in Jersey City for two years prior to the commencement of her suit for the purpose of establishing a residence sufficient to enable her to obtain a divorce-to obtain the relief which is denied to her by the laws of the state of New York, from which state she came and that the contemplated duration of her residence in New Jersey is measured by the purpose with which such residence has been maintained. This presumption, however, can be overcome by the requisite amount of evidence. Hunter v. Hunter, supra. If the petitioner had any other or further purpose in coming into New Jersey-if she has been residing in New Jersey animo manendi since she came to board with Mrs. Watt-it is incumbent upon her to make proof of that fact. In the case of Grover v. Grover, 63 N. J. Eq. 771, 52 Atl. 1131, I held that the presumption against the permanency of the petltioner's residence in a case like this could not be overcome solely by his own "testimony in regard to his motives, purposes, and intentions." The Court of Appeals in that case declared that it was not "prepared either to concur in or dissent from" the rule of evidence above set forth. 63 N. J. Eq. 796, 52 Atl. 1131. See Hunter v. Hunter, 64 N. J. Eq. 282, 53 Atl. 221, et seq.

The evidence which goes to throw light upon the real character of the petitioner's residence in New Jersey, so far from overcoming the presumption to which I have referred, in my judgment greatly strengthens that presumption. It does not appear that the petitioner has established any ties which bind her to the state of New Jersey. Her mother continues to reside in Brooklyn. Although the petitioner has endeavored, as 1 she testifies, to induce her mother to come to New Jersey, so far her efforts have failed. It appears that the petitioner's mother owns some real estate in New Jersey, but not in Jersey City. The petitioner remains in New Jersey from Monday afternoon or evening of each week until Saturday morning. For two days and a half of each week she lives in the state of New York. She spends her Sundays and holidays with her mother, in Brooklyn. So far as appears, all her friends and associates reside in New York or Brooklyn. she attends church on Sunday, it must be in Brooklyn. The picture of this woman's life in New Jersey for the two years in question presents her as crossing the Hudson river to her boarding house in the afternoon or evening, sleeping in Jersey City, and recrossing the Hudson river in the morning to her place of employment in New York. Practically all her leisure time, which, in the case of every person employed as she is, largely consists of Sundays and holidays, is

If

spent at her old home, her original domicile in the city of Brooklyn. There is no evidence that the petitioner has formed the acquaintance of a single individual in the state of New Jersey since she came here, in January, 1902.

When we come to the testimony of the petitioner, which is an important part of her case, within the direct ruling of the Court of Errors and Appeals in the case of Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533, we find that she denies that she came into the state of New Jersey for the purpose of getting a divorce, but she voluntarily adds that she came for the purpose of getting near her business. She elsewhere states that she thought she would "take a place in Jersey and board," so as to make it more convenient for her to get to her work; that it used to take her nearly an hour to get to her work from her mother's house, while it takes a little less than half an hour to get there from her present boarding house. The only testimony of the complainant which bears directly on the question whether she is living in New Jersey animo manendi is contained in the following question and answer: "Q. Do you intend to live in Jersey, or did you come here to get a divorce, and then go back to Brooklyn? A. No; I intend to live here. It is part of my work." The conscience of the petitioner has not been directly sounded on the question whether she has been living in New Jersey with the bona fide intention of remaining permanently a resident, whether she obtains a divorce or not. Giving her testimony the greatest effect which can be attributed to it, I think it amounts to a statement on her part that she is boarding in New Jersey because, as long as she is employed where she now is in New York City, it is more convenient for her to sleep five nights in the week and take about half her meals in Jersey City. In my judgment, in the class of cases to which this present case belongs, it is incumbent upon the petitioner to exhibit to the court some picture of her life in New Jersey -present some evidence, not only by her own oath, but by the oath of other witnesses, of facts which tend to corroborate her claim that she has resided permanently or indefinitely in New Jersey. In this case the petitioner has not even sworn directly that she has lived in New Jersey for two years prior to the commencement of her suit with an indefinite purpose to reside permanently in the state, and she has not testified to a single fact about her life from day to day which tends to weaken the presumption against her case to which I have referred. The only witness to the petitioner's life in New Jersey, other than herself (Mrs. Watt), also fails to state a single fact which indicates that the petitioner is anything more than a transient boarder in Jersey City. The petitioner admits that sometimes she remains with her mother for two or three days at a time, and that in the summer, when she

has a vacation of two weeks, she spends that vacation at her mother's house, in Brooklyn.

If the petitioner, upon the depositions taken in this case, is entitled to a divorce under our law, I see no reason why any woman married in New York, deserted by her husband in New York, and maintaining herself by her labor in a state of separation from her husband in New York, may not, whenever she wishes to get an absolute divorce from her husband, which the laws of New York deny her, board for five days in the week in Jersey City or Hoboken during two years, and then obtain a divorce under the laws of the state of New Jersey, although her interests in life remain located in the state of New York, and it does not appear that she has even become a permanent boarder in New Jersey.

At any

The class of cases to which the present one belongs appears to be constantly increasing, and certainly calls for the utmost care and the closest scrutiny to prevent the fraudulent use of our divorce laws by citizens of other states, and especially by citizens of the state of New York. New York is the only state near us in which an absolute divorce cannot be obtained on the ground of desertion. It is a significant fact that the petitioners in these suspicious cases-these emigrants from other states-who so promptly apply for divorce on the ground of desertion, commenced in the state from which they come, almost uniformly are from the state of New York. Deserted spouses in Pennsylvania and Connecticut and other states near by, except New York, seem to be able to redress their matrimonial grievances at the place where the desertion first occurred. rate, they very rarely, after establishing a residence in New Jersey, seek in this court a divorce on account of the desertion which took place in the state from which they come. If we examine the last 12 cases which appear in our Reports in which application was made to this court for a divorce, on the ground of desertion, by a spouse who had moved into New Jersey from a foreign domicile after the alleged desertion in fact began, we find that in 11 of these cases the emigrant came from New York. Tracy v. Tracy, 60 N. J. Eq. 25, 46 Atl. 657; Id., 62 N. J. Eq. 807, 48 Atl. 533; Pohlman v. Pohlman, 60 N. J. Eq. 28, 46 Atl. 658; McGean v. McGean, 60 N. J. Eq. 21, 46 Atl. 656; Id., 63 N. J. Eq. 285, 49 Atl. 1083; Wallace v. Wallace, 62 N. J. Eq. 509, 50 Atl. 788; Id., 65 N. J. Eq. 359, 54 Atl. 433; Grover v. Grover, 63 N. J. Eq. 771, 796, 50 Atl. 1051; Hunter v. Hunter, 64 N. J. Eq. 277, 53 Atl. 221; Gunther v. Gunther (N. J. Ch.) 57 Atl. 1015; Cotter v. Cotter (N. J. Ch.) 58 Atl. 73; Richardson v. Richardson (N. J. Ch.) 58 Atl. 820; Currier v. Currier (N. J. Ch.) 59 Atl. 4; Brand v. Brand (N. J. Ch.) 59 Atl. 570. In the remaining case (Sweeney v. Sweeney, 62 N. J. Eq. 357, 50 Atl. 785) the matrimonial domicile

was in Cuba. But the reported cases constitute only a small percentage of the total number of this class. I think it is safe to estimate that on the average at least once a week an emigrant from the state of New York, after residing in some way in New Jersey for a period of two years and over, applies to this court for an absolute divorce on the ground of a desertion which he charges against his absent spouse, and which, if there was any desertion, in fact commenced at the matrimonial domicile, in the state of New York. In many cases, no doubt, there has been a bona fide permanent residence established in New Jersey, whether for the purpose of obtaining the desired matrimonial relief or not; but in many cases, in my opinion, a gross fraud is attempted upon our laws. The detection of the fraud in many cases would seem to be difficult, if not impossible. Thousands of persons formerly domiciled and doing business in New York now reside bona fide permanently in New Jersey, while they continue with all their business interests in New York, and spend a large part of their time in that state. These bona fide changes of residence are constantly occurring, and this fact increases the difficulty of the court in getting at the truth in a particular case. What aids the court most is a full disclosure of all the circumstances which have attended and characterized the residence under investigation. This aid, it seems to me, the applicant for divorce in this class of cases is bound to render in the most ample manner. It has been held to be a safe rule, founded in public policy and good morals, that the jurisdiction of the Court of Chancery in the class of divorce cases to which the present one belongs, should in every case 'be clearly proved, and, where a serious doubt exists as to the bona fides of the petitioner's residence in New Jersey, jurisdiction should not be exercised. Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Sweeney v. Sweeney, 62 N. J. Eq. 354, 359, 50 Atl. 785.

In this case I think more than a serious doubt exists in regard to the character of the petitioner's residence in New Jersey during the two years during which she has boarded in Jersey City. In my opinion, the correct inference from the evidence is that such residence has not been maintained animo manendi. The petition, therefore, must be dismissed.

(69 N. J. E. 145)

DU BOIS v. NUGENT et al. (Court of Chancery of New Jersey. March 17, 1905.)

EXCHANGE OF PROPERTY-RESCISSION-FRAUDMISREPRESENTATIONS ALLEGATIONS-PROOF -CONDUCT OF PARTIES-NEGLIGENCE.

1. In a suit in equity to rescind an exchange of real estate for fraudulent representations. proof of defendant's knowledge of the falsity of such representations is not required.

[Ed. Note. For cases in point, see vol. 21, Cent. Dig. Exchange of Property, § 5.]

2. During negotiations for an exchange of property, defendant's husband represented that fruit trees on the farm conveyed to plaintiff in the exchange were "sound, healthy, and fruitful," but disclosed to plaintiff's husband the existence of scale in two of the orchards. Plaintiff's husband, who acted for her, concluded the exchange, knowing that some of the trees were so affected, and that treatment was necessary for their protection. Held, that plaintiff was not entitled to a rescission of the exchange on the ground that defendant's husband falsely represented that the orchards were free from scale.

3. Where, in a suit to set aside an exchange of land for fraudulent representations with reference to the condition of orchards on the land conveyed to plaintiff, the bill alleged that defendant's husband represented that the trees were "fine, healthy, and mostly bearing," and the only misrepresentation charged was that the trees were not affected with scale, plaintiff, not being entitled to a rescission on that ground, could not rescind on the ground that the trees were not otherwise sound and healthy.

4. Plaintiff's husband, after negotiating for her an exchange of land, knowing that certain of the orchards thereon were affected with scale, made inquiries of defendant's husband, asking for a reduction of a mortgage indebtedness covering the difference on the exchange, and continued to dispose of crops on the farm, making no effort to rescind the contract prior to the filing of a bill for that purpose, alleging false representations with reference to the existence of scale. Held that, plaintiff not having established the falsity of such representations, her subsequent acts, with knowledge of the facts, constituted an election not to rescind.

5. Where, after the filing of a bill to rescind an exchange of property because of alleged fraudulent representations made by defendant's husband that orchards on the property conveyed to plaintiff were not affected with scale, plaintiff took no steps to protect the trees from further injury by such disease, though, with proper attention, a large part of them could then have been saved, and defendant was under no equitable duty to rescind at the time the bill was filed, plaintiff was barred by her negligence from obtaining a rescission on account of misrepresentations other than those alleged in the

bill.

Bill by Helen E. Du Bois against Elizabeth A. Nugent and another to rescind an exchange of real estate. Bill dismissed.

On September 8, 1902, the complainant, Mrs. Du Bois, and the defendant Mr. John A. Nugent entered into a written contract for the exchange of lands, which was carried out on October 1, 1902, by deeds of that date. The land conveyed to the complainant in the exchange was a farm owned by Nugent near Clyde, in Somerset county, on which were extensive orchards, and which was valuable mainly as a fruit farm, and the lands conveyed to Nugent were houses and lots in Jersey City. The bill is filed to rescind the contract of exchange, and for a reconveyance of the properties, on the ground of alleged false representations made by Nugent during the negotiations as to the condition of the trees, which representations were relied on by complainant and induced the contract. These representations were made by circulars offering the property for sale, in which the trees, over 8,000 in number, were described as "fine, healthy, and mostly bearing," and also by personal statements

of Nugent to the husband of complainant, who acted for her in the negotiations, that the trees were all in sound and healthy condition, and increasing in value. There was, as the bill alleges, a further representation made by Nugent, in answer to a special inquiry by Du Bois, that he had never had the San Jose scale upon his trees. All of these representations are alleged to be false, and it is claimed that, at the time of the contract and conveyance, seven-eighths of the trees were, and had been for a long time, badly infested by the San Jose scale, and were therefore practically worthless. The bill further charges that Nugent at the time of making the representations knew that his fruit trees were, and had been for several months, infested by this scale, and that the representations were made with the fraudulent purpose and intention of inducing the contract of exchange. There is a further allegation of misrepresentation as to the number of trees, but relief on this ground was not insisted on at the hearing. In reference to the representations, the defendants allege that the circulars describing the trees and their condition were issued in the summer of 1901, and at the time were in all respects correct, but deny that any of these circulars came to the complainant's notice until after the negotiations for the exchange were practically consummated, and deny that during these negotiations Nugent stated at all that the trees were all in sound and healthy condition and increasing in value, and that, in answer to an inquiry, he said to Du Bois that he had never had the San Jose scale upon his trees. They further allege that the scale, although not easily distinguishable on the trees, as alleged in the bill, was in fact seen on the trees by Du Bois before the agreement of exchange was entered into, and that the existence of the scale on the trees on the farm was known to complainant at the time of the exchange. In reference to the existence of the scale on his trees, the defendant says that in the early part of 1902 he learned from Prof. Smith, the entomologist of the State Agricultural College, that some of his trees were infested with the scale, and that he also learned of the existence of scale on his trees and the method of treatment from a neighbor, Mr. Mortimer Whitehead, owning the adjoining farm, and an expert in such matters. As to communication of his information to Du Bois, the defendant says that during all of the negotiations he gave to Du Bois all the information and knowledge he had respecting the existence of San Jose scale on the trees, and especially his information from Prof. Smith and Mr. Whitehead that it was on the trees; that the subject of the scale and its treatment was discussed between defendant and Du Bois, and the necessity of treating the trees by spraying during the winter was particularly discussed; that Du Bois claimed to be familiar with the San Jose scale; that

he had read about it, and knew that, if taken in time, they could be doctored all right with oil; and that defendant and Du Bois both believed that the scale could be exterminated in the winter following the exchange. The lands conveyed to Nugent were subsequently conveyed to his wife, as was also a mortgage for $8,000 given by complainant to Nugent upon the farm to equalize the values of the properties exchanged, and secure part of the consideration. These transfers to the defendant Mrs. Nugent are, however, admitted by the answer and on the hearing to have been purely voluntary, and the case is to be considered as if Nugent still held title to the lands and mortgage.

Alan H. Strong, for complainant. Randolph Perkins and Gilbert Collins, for defendants.

EMERY, V. C. (after statement of issues). The points to which the arguments were principally directed at the hearing were, first, the representations made as to the condition of the trees, and the existence of the scale on them, during the treaty for purchase or exchange, and whether the charges of the bill in this respect were proved; second, the truth or falsity of the representations made; and, third, whether the complainant has not, by his action and conduct since the exchange, and since the time of his alleged discovery of the falsity of defendant's representations, deprived himself of the equitable remedy of rescission of the contract, not only by an election to ratify and stand by the exchange, but by such neglect of proper treatment of the trees and orchards as to make rescission of the contracts now inequitable and unjust.

The extent to which the trees were actually infested by the scale at the time the exchange was made, and when complainant took possession under the agreement (October 15, 1902), was another point to which considerable evidence (expert and other) was directed. The dispute between the parties on this evidence, however, is whether, as complainant claims, at that time the condition of the orchards was such that a large part of them was practically worthless, by reason of the existence of the scale, or whether, as defendant claims, the orchards, although infected by the scale to an extent requiring thorough treatment as soon as practicable, could have been freed from the pest by proper treatment, and at a comparative small expense. But there can be no doubt, I think, that the existence of the scale In the orchards, even to the extent shown by defendant's evidence, so affected the value of the orchards as to make any representation that they were free from it material, as well as false.

Certain principles controlling courts of equity in relation to the rescission of contracts which have been entered into and executed in reliance upon representations of fact which are material, and which are sub

sequently found by the complaining party to be untrue, seem to be entirely settled. In these cases the mere falsity of a material representation entitles the injured party to the equitable remedy of rescission, if applied for with the promptness required by all the circumstances of the case. Proof of the defendant's knowledge of the falsity of the representation is not considered as essential to the right of rescission; nor is the honest belief of the defendant in making the representation a bar to this relief, as it may be in a common-law action for damages for deceit. At law, fraudulent intent, or, as is sometimes said, moral fraud, must be shown to have existed, while in a court of equity the complainant may succeed, although the representation was innocent. Cowley v. Smith (Sup. Ct. 1886) 46 N. J. Law, 380, 393, 50 Am. Rep. 432; Eibel v. Von Fell (1897) 55 N. J. Eq. 670. In Cowley v. Smyth (Sup. Ct. 1886) 46 N. J. Law, 380, 393, 50 Am. Rep. 432, it was decided that, in an action for deceit for false representations as to the solvency of a bank of which the defendant was a director, fraudulent intent must be proved, and it should be left to the jury to say whether the defendant made the representations with a fraudulent purpose, or whether he made them in good faith, and in the honest belief that they were true. This decision has since been considered as establishing the broad rule that in such common-law actions the fraudulent intent to deceive must be proved. Eibel v. Von Fell (Sup. Ct. 1899) 63 N. J. Law, 3, 4, 42 Atl. 754, affirmed on writ of error in 64 N. J. Law, 364, 48 Atl. 1117, for the reasons given in the Supreme Court (1899). In the early case of Snyder v. Findley (1791) 1 N. J. Law, 48, 51, Chief Justice Kinsey, at nisi prius, ruled that at law a false representation inducing the contract in that case (taking the note of a third person in payment for goods sold, on the representation that the note was good) was fraudulent, whether innocent or not; but this ruling, if inconsistent with the later cases, must be considered as overruled, and as important only for its bearing on the question debated in Derry v. Peek, infra, and elsewhere, as to the original doctrine of the common law. Newbigging v. Adam, 34 Ch. Div. 582, 594 (Lord Bowen, 1886); Sir F. A. Pollock in 5 Law Quart. Rev. 410, and cases cited; 2 Pom. Eq. Juris. § 884 (2d Ed.); cases cited in note 15 Cent. Law Jour. 327. The rule settled in Cowley v. Smith, supra, is that of the leading case-Derry v. Peek, 14 App. Cases, 337 (1889), decided in the House of Lords-in which, after great consideration, it was finally settled in England that, in a common-law action for deceit, an honest belief of the defendant in the statements made was a defense, and that the fact that the belief was not, in the opinion of a court or jury, founded on reasonable grounds, did not of itself make the representation actionable, although the reasonableness of the

grounds of belief might be considered on the question of honesty in entertaining it. The rule that in equity the complainant may rescind, although the representation was innocent, was stated and applied by Vice Chancellor Stevens in Eibel v. Von Fell (1897) 55 N. J. Eq. 670, 38 Atl. 201, in a case where the representation of a vendor, assumed to be innocent, was that the house was as good as new, but in fact it contained rotten timbers. The reasons given for extending the equitable remedy of rescission to cases of innocent misrepresentations which have induced a sale has been best stated by Sir George Jessel in Redgrave v. Hurd, 20 Ch. Div. 1, 51 L. J. Ch. 117 (1881). "It was put in two ways, either of which was sufficient to induce a court of equity to rescind. It was said: 'A man is not to be allowed to get a benefit from a statement which he now admits to be false.' That is one way of putting it. The other way of putting it was this: 'Even assuming that you want moral fraud in order to set aside a contract, you have it where a man, having obtained a beneficial contract by a statement he now knows to be false, insists upon keeping that contract.' That, of course, is a moral delinquency. No man ought to seek to take advantage of his own falsity. It does not matter which way it was put, but that was the rule in equity." This equitable rule had been previously declared in Rawlins v. Wickham, 3 De G. & J. 304 (1858), and In re Reese Silver Mining Co., L. R. 2 Ch. App. 604 (1866), and was approved in Redgrave v. Hurd, 20 Ch. Div. 1 (1882), and where, in the opinion of the court, the representation was made without reasonable grounds for believing it true, the right to rescind was considered to be based on even stronger grounds. In re Reese Silver Mining Co., supra; Kountze v. Kennedy (1895) 147 N. Y. 124, 133, 41 N. E. 414, 29 L. R. A. 360, 49 Am. St. Rep. 651. In Derry v. Peek, supra, the equitable rule in cases of rescission is recognized as settled, and the question mainly examined in the elaborate opinions of the judges is whether the justices of the Court of Appeal rightly applied the equitable rules in cases of rescission, to claim which was substantially an action for deceit.

This equitable right to rescind for false representations innocently made is recognized also by other courts, which hold fraudulent intent necessary in actions for deceit. Kountze v. Kennedy (1895) 147 N. Y. 124, 129, 41 N. E. 414, 29 L. R. A. 360, 49 Am. St. Rep. 651.

On the authority of these cases, therefore, I conclude that if the representations as to the condition of the trees and the absence of the scale alleged in the bill are proved to have been made, and to have been the representations which induced the contract, and they are false, the complainant, on the discovery of the untruth of the representations, had then an equitable right to re

scind the contract, whether the representations were innocent or fraudulent. If the representations and their falsity are satisfactorily proved, the allegations as to their willful and fraudulent character may, so far as any right to rescind is concerned, be considered as superfluous or unnecessary.

The first and the principal question of fact to be determined is, what representations were made by Nugent during the negotiations in relation to the condition of the trees and the scale, and what information had Du Bois in reference to the scale on the trees at the time of the contract or exchange?

(The evidence on this subject was voluminous, and is stated and considered in de tail in a separate memorandum, which will be filed for the information of the parties. The opinion proceeds.)

Upon the whole evidence, my conclusion as to the representations made by Nugent to Du Bois is that during the treaty for exchange, and both by circulars which came to Du Bois' attention, and in the personal interviews, Nugent represented that the trees were sound and healthy and fruitful, but that during the negotiations, and before the contract of exchange was made, Nugent also disclosed to Du Bois the existence of scale in one of the large orchards and in the small kitchen orchard, and that he actually showed Du Bois the scale on a few trees in those orchards; and I find further that Du Bois concluded the exchange, actually knowing of the existence of scale upon a few trees, and supposing that, to some extent, it infected other trees, and that some treatment of the orchards was necessary for their protection from the scale. So far, therefore, as the right to rescind the contract or to relief under the bill depends upon the charge of a false representation by Nugent that there was no scale in the orchards, the complainant's claim is not sustained by the proofs. It was, however, insisted by complainant's counsel at the hearing that, on the disclosures made by Nugent, taking his evidence to be true, the complainant is now entitled to relief upon the ground that Nugent during the whole negotiation certainly represented the trees to be sound and healthy trees; that this representation charged in the bill was false, by reason of the extent of the scale; that Nugent, by his words and conduct, misrepresented the extent to which the scale existed on the trees and its danger, and misrepresented also the statements made to him by Mr. Whitehead in relation to the extent of the scale and its danger.

But this is not a case where, either on the pleadings or proofs, the charges of misrepresentation in reference to the condition of the trees can be separated from those in re gard to the scale. No other disease or source of unsoundness than the scale is alleged in the bill or shown by the proofs, and, if i have rightly apprehended the present case,