supply water in the territories into which the pipes were being laid, and the prayers of the bill were for an injunction to restrain each of them from taking any of the waters of White Deer creek for the purpose of supplying the same to the public in any municipality, borough, or township other than the townships of White Deer or Kelly. The injunction as to the White Deer Creek Water Supply Company ought manifestly to have been continued, for reasons appearing in the opinion, and as to the water company we said, through our Brother MESTREZAT: "The only questions, therefore, for consideration here are: (1) The right of the White Deer Mountain Water Company to appropriate the waters of White Deer creek for the purpose of supplying the same to the public in any municipality, borough, or township other than White Deer township, in Union county; and (2) the right of the plaintiff to have that question determined by a court of equity in a proceeding under the provisions of the act of June 19, 1871." What was enjoined was the taking of the waters of the creek for the purpose of directly supplying the same to the public in townships and municipalities other than the one in which the water company was authorized to supply the same. In the present case no pipe of the water company runs outside of Antis township, and it is not undertaking to deliver water to any one, much less to the public, at any point beyond the limits of that township. The supply and delivery of which the appellant complains are within the township, and to a single customer of the water company. If the pipe of this customer connecting with that of the water company should not extend beyond the lines of Antis township, it would hardly be pretended that the supply of the water would not be entirely lawful, and we can recognize no difference because, after the supply and delivery of the water to the railroad company are complete within the township, that company, under no arrangement between it and the water company, carries the water for its own corporate purposes beyond the line of the township.

At the time this bill was filed-February 14, 1906-a bond had not been approved by the court to secure to the appellant the payment of his damages, and the court found as a fact that no effort had been made to agree upon the amount of compensation to be allowed him for the taking and appropriation of the waters of the run. In view of this, he contends that the preliminary injunction should have been made perpetual. Though no bond had been approved at the time these proceedings were instituted, one had been tendered to the appellant in December, 1904, and, upon his refusal to accept it, notice was given to him that it would be presented to the court of common pleas of the county for

suance of this notice, a bond was filed on that day, but was not approved because excepted to by the appellant. Subsequently, on May 16, 1906, another bond, in a larger amount, was substituted and approved by the court. As no bond had been approved at the time the appellant applied for the injunction, the restraining writ was properly issued and ought to have been continued until the water company secured to him the payment of his damages in the mode prescribed in section 41 of the act of April 29, 1874. This it did when its bond was approved by the court in May, 1906, and the injunction which, up to that time, had properly restrained all interference with the appellant's rights, ought then to have been dissolved. In the decree dissolving it and dismissing the bill the proper penalty for the attempt of the water company to take the waters of the run before legally authorized to do so was imposed upon it by directing it to pay the costs in the proceedings below.

&

As to the contention that, as there was no evidence of any attempt by the water company to agree with the appellant as to the amount of compensation he ought to receive for the damages he sustained, the tender and filing of the bond were unauthorized, we need only repeat what was said of a similar contention in Wadhams V. Lackawanna Bloomsburg Railroad Co., 42 Pa. 303: "It is next insisted that there was no evidence of any attempt by the defendants to settle with the plaintiff, and agree upon the damages before they entered upon his land and before they filed the bond given as a security. Hence it is inferred that the tender of the bond, and the filing of the same, was unauthorized by law, and that the defendants were not empowered to appropriate the land for the said road. Though the acts of assembly do not in terms require any attempt to make a settlement before a tender of a bond or filing it in the common pleas, it is perhaps a just inference from their language that there should be some evidence of inability of the parties to agree before the court should undertake to pass upon the security offered. But the very offer of a bond is an assertion by one of the parties that they cannot agree, and is in itself some proof of such inability, for without the consent of both such an agreement cannot be made. And if it were not so, the action of the court approving the sureties, and directing the bond to be filed, involves an adjudication that everything had been done which entitled the company to have the bond filed. If an attempt to settle was a prerequisite, the order of the court is conclusive that the attempt had been made. The decree of the court, like any other judgment, is final between the parties, as to all matters adjudicated therein directly, and to all facts which were essential to the adjudication." The

2. EXECUTION (§ 371*)-PROCEEDINGS SUPPLE· DISCOVERY — AUMENTAL TO EXECUTION THORITY OF OFFICERS-"AFFIDAVIT"-"DEPOSITION.

execu

Under the act of 1901 (P. L. p. 372), authorizing proceedings supplemental to tion, and directing that the discovery shall be before a judge or a Supreme Court commissioner, and Practice Act (P. L. 1903, p. 596) § 228. authorizing a Supreme Court examiner to take any "affidavit" that may be taken before a Supreme Court commissioner, a Supreme Court examiner may take the deposition of a judgment defendant under an order directing him to make discovery in proceedings supplemental to execution, though technically an "affidavit" is taken ex parte, and though a "deposition" is technically taken on notice, so that the testimony taken under an order for discovery is technically a "deposition,' but the words "deposition". and "affidavit" may be synonymous.

[Ed. Note. For other cases, see Execution, Dec. Dig. & 371.*

For other definitions, see Words and Phrases, vol. 1, pp. 240-245; vol. 2, pp. 2000-2002; vol. 8, pp. 7568, 7634.]

3. EXECUTION (§ 398*)-PROCEEDINGS SUPPLEMENTAL TO EXECUTION-ORDERS-VALIDITY.

Where depositions in proceedings supplemental to execution, under the act of 1901 (P. L. p. 372), where presented to the judge before the making of the order directing the judgment defendant to make payments to plaintiff, the failure to file the depositions before the making of the order did not affect its validity.

[Ed. Note. For other cases, see Execution, Dec. Dig. § 398.*]

4. EXECUTION (§ 398*) - PROCEEDINGS SUPPLEMENTAL TO EXECUTION-Orders-VALID

ment defendant to take testimony on his part, the objection that there was no formal closing of the taking of evidence did not affect the validity of an order directing the judgment defendant to make payments to the judgment creditor. [Ed. Note. For other cases, see Execution, Dec. Dig. 398.*]

6. EXECUTION (8 418*)-SUPPLEMENTAL PROCEEDINGS-DISOBEDIENCE OF ORDERS-PROCEEDINGS TO PUNISH-ORDERS-EFFECT.

An order which adjudges a judgment debtor guilty of contempt for violating an order in proceedings supplemental to execution, and which orders a warrant which is not in the nature of an attachment on which interrogatories are intended to be served, is an adjudication of contempt, and is not a mere order for process. [Ed. Note.-For other cases, see Execution, Dec. Dig. § 418.*]

7. EXECUTION (§ 418*)-SUPPLEMENTAL PRO

CEEDINGS-ORDERS-VIOLATION-EVIDENCE.

Where a judgment defendant, on order to show cause why he should not be punished for contempt for violating an order in proceedings supplemental to execution directing him to pay $30 a month, showed that when the order was made he earned about $150 per month, but that subsequently his income had been reduced to $16 a week, which was not more than suffi- . cient to support himself and wife and child, the court improperly adjudged him guilty of contempt; the statute not contemplating that a debtor shall devote all of his earnings to his creditors.

[Ed. Note. For other cases, see Execution, Dec. Dig. § 418.*]

Certiorari to District Court of Jersey City. Action by Solomon Hershenstein against George H. Hahn. There was an adjudication that the debtor was guilty of contempt for failure to obey an order in proceedings supplemental to execution requiring him to pay plaintiff a specified sum per month out of his earnings, and he brings certiorari. Judg ment adjudging defendant guilty of contempt set aside.

Peter H. James, for plaintiff. Melosh & Morten, for defendant.

SWAYZE, J. The prosecutor seeks to set aside the proceedings of the Second district court of Jersey City, supplemental to execution, including an adjudication that the defendant was guilty of contempt, in failing to obey an order to pay $30 a month out of his earnings to the plaintiff.

The first objection is that the act of 1901 (P. L. p. 372), under which the proceeding was taken, is not applicable to district courts, because the object is not stated in the title. This court has already held in Spencer v. Morris, 67 N. J. Law, 500, 51 Atl. 470, that the act is applicable to district courts. The particular objection now raised does not appear to have been raised in that case, but I think it is without force. The title of the act of 1901 is a further supplement to an act entitled "An act respecting any execution," and I see no reason why this should not be held to be broad enough to cover executions out of district courts. It is true the Legislature has made provision for supplemental

proceedings in the district court act itself, but I do not think that is sufficient to indicate that enactments relating to that subjectmatter should always be repeated in the district court act, as well as in the executions act.

The second point is that the order of discovery directed the prosecutor to make discovery before a Supreme Court examiner. The act of 1901 directs that the discovery shall be before a judge or a Supreme Court commissioner; and the power of a Supreme Court examiner depends upon section 228 of the practice act (P. L. 1903, p. 596). This act gives the Supreme Court examiners the same power to administer an oath or take any deposition in any action for use in any court of law as a justice of the Supreme Court, and provides that any oath or affidavit that may be taken before a Supreme Court commissioner may be taken before a Supreme Court examiner. It is argued that the first clause does not empower the Supreme Court examiners to take depositions of this character, for the reason that there is no provision by which a justice of the Supreme Court can take them. Without passing upon this question, I think that the second clause, authorizing a Supreme Court examiner to take any oath or affidavit that may be taken before a Supreme Court commissioner, is sufficient authority. Strictly and technically, an affidavit is taken ex parte, and a deposition is taken upon notice, so that testimony taken under an order for discovery would be called a deposition with more technical propriety. But the use of the word "affidavit" with a similar meaning is not unprecedented in our reports. A curious illustration of the interchangeable way in which the words "depositions" and "affidavits" may be used appears in the old case of Rogers v. Chadwick, 10 N. J. Law, 59. Other illustrations may be found in Den v. Geiger, 9 N. J. Law, 225; Scott v. Beatty, 23 N. J. Law, 256, 260; Warford v. Smith, 25 N. J. Law, 212; Parsell v. Mann, 30 N. J. Law, 530, 550. The last cited case is in the Court of Errors and Appeals. I think, therefore, that a Supreme Court examiner was authorized to take this examination.

The third point urged is that the depositions were not filed until the 8th day of May, while the order directing defendant to pay was made on the 6th day of May. It appears in the case, and is not denied, that the depositions were presented to the judge on the 4th of May, although not filed with the clerk until the 8th. It is enough to say that the statute does not require the depositions to be filed before the order is made, but only that they should be returned to the judge. A similar question was presented to the Court of Errors and Appeals in Stokes v. Hardy, 71 N. J. Law, 549, 60 Atl. 403. Nor is it an insuperable objection that the depositions were not signed by the defendant.

way of verifying an examination of the judgment debtor, but it does not seem to be required by the statute; and, since the judgment debtor did actually sign the depositions, it does not seem material whether he signed them before or after they were presented to the judge, or after the order was made.

I see no force in the objection that there was no formal closing of the taking of testimony, since, in fact, the testimony was treated by both parties as having been closed, and no effort was made by the defendant to take testimony on his part, even if it be assumed that under an order of this kind he had a right so to do.

The fifth point raised by the prosecutor goes to the merits of the case, and involves the validity of the order made on the 4th day of March, 1998, adjudging the defendant guilty of contempt of court and ordering that a warrant issue to a constable commanding him to arrest the defendant and forthwith convey him before the judge. This probably was made after an order of February 26, 1908, directing the defendant to show cause why he should not be adjudged guilty of contempt for not obeying the order for the payment of the judgment made on the 4th of May, 1907. Upon the return of this rule the defendant admitted, by his counsel, that he had not complied with the order to pay, and presented an affidavit showing that his circumstances had changed, so that, instead of earning $6 a day, he was earning not more than $15 or $16 a week, and that that was not more than sufficient to supply the necessaries of life for himself, his wife, and his child. In this affidavit he expressed his willingness to report to the plaintiff's attorney every week, advising him when and where he was employed, by whom, and the amount of money that he earned, in order that the court and the plaintiff's attorney might be satisfied as to his ability to comply with the requirements of the order to pay. No facts appear to contradict the statements of this affidavit, and no question seems to be raised now as to its truth. The order adjudging the prosecutor guilty of contempt is a very different order from that which was involved in Doland's Case, 69 N. J. Eq. 802, 64 Atl. 1091, for this distinctly adjudges the defendant to be guilty of contempt, and the warrant which it orders does not seem to be in the nature of an attachment upon which interrogatories were intended to be served. I think the order amounts to an adjudication of contempt, and is not a mere order for process. I do not think it necessary to consider whether the procedure adopted in this case was the proper procedure or not. If the procedure had been by way of interrogatories, and the defendant had answered them, the answers would probably have disclosed the same state of facts as is disclosed by his affidavits; and I shall, therefore, treat the case as if this affidavit had taken the form

seems to me that it shows such a case that he should not have been adjudged guilty of contempt. As far as the case shows, he was, at the time the original order was made requiring him to pay $30 a month, earning about $150 a month; the court, therefore, seems to have thought that it was not unreasonable for him to use $120 per month of his earnings for his living expenses. When his income shrank to not more than $16 a week, his total income was a little more than half of that amount, and I see nothing to indicate that it is unreasonable for a man with a wife and child, living in Jersey City, to expend $16 a week in living expenses. The statute does not contemplate that a man should devote all of his earnings to his creditors; to require that would, in substance, make him the slave of his creditors, and require the court to enforce the servitude. The case, so far as contempt of court is concerned, comes within the rule of Walton v. Walton, 54 N. J. Eq. 607, 35 Atl. 289, and the cases of McClure v. Gulick, 17 N. J. Law, 340, and State v. Gulick, 17 N. J. Law, 435, therein cited. I think the order adjudging the prosecutor guilty of contempt should be set aside. There was no suggestion that the original order directing him to pay $30 a month was improper under the circumstances then before the court and that order should not be disturbed. No costs should be allowed to either party as against the other.

(77 N. J. L. 132)

MILEWSKI v. KURTZ. (Supreme Court of New Jersey. Nov. 9, 1908.) HUSBAND AND WIFE (§ 326*)—ALIENATION OF WIFE'S AFFECTION.

In an action by a husband for the alienation of his wife's affections, his consent to the acts constituting and contributing to the injury is a bar to recovery.

[Ed. Note.-For other cases, sée Husband and Wife, Dec. Dig. § 326.*]

(Syllabus by the Court.)

Action by John Milewski against Joseph Kurtz. Verdict for plaintiff. Rule to show cause made absolute.

Argued June term, 1908, before REED, BERGEN, and VOORHEES, JJ.

William B. Mackay, Jr., for plaintiff. Horace L. Allen, for defendant.

VOORHEES, J. This is a suit for the alienation of a wife's affections. At the circuit, a verdict for the plaintiff was rendered for $750, whereupon this rule to show cause was allowed.

The testimony shows that the defendant was a frequent visitor at plaintiff's house, being often there in the daytime, and frequently remaining all night, when the husband was not at home; that, previous to

the coming of the defendant and his attentions to the wife, the relations existing between the husband and wife were friendly and affectionate; that the defendant, after introduction to the plaintiff by the wife, became friendly with the husband, so much so that the defendant often remained overnight with the plaintiff, and, according to the plaintiff's own testimony, more than once the defendant slept in the same bed with the plaintiff and his wife, upon plaintiff's invitation; that defendant took the wife out driving; that in the month of October, 1906, there arose a quarrel between the plaintiff and his wife and the defendant, after which plaintiff left his home and went to work, leaving his wife with the defendant, and when he returned home that night the wife and the defendant had departed. This hap pened on Friday, and on Monday she came back for her clothes and told the plaintiff that she was going to leave him, and when asked to give her reason for it said, "I am done with you; I won't tell you, but I am going to leave you;" that it was none of his business; then she left and has never been back to stay, but did return about a week afterwards with a police officer to get the rest of her clothes. Plaintiff subsequently went to the defendant's house in Hoboken. The wife was found working there and refused to go home with plaintiff, and told him that she was not going to live with him. Before this time the plaintiff, when working in Hoboken, where the defendant lived, had stayed at the defendant's house. He testifies that on Teusdays he was never home, and afterwards found out that defendant had spent these Tuesdays with his wife. In addition to plaintiff's testimony, there were other witnesses who testified to the fact that defendant called at plaintiff's house when the wife was there and the husband away; that they went out walking together, he holding her by the hand or by the arm; that defendant and the wife sat on the stoop until nearly midnight. There was sufficient evidence in the case from which the jury might infer that the defendant had alienated the affections of the wife. It also appeared that many of the acts of the defendant and his wife were known to the plaintiff, and sufficiently so to indicate that the husband consented to the alienation.

The evidence of the defendant shows that he was a friend of the family of the wife before she married and frequently called at her house; that after her marriage she and her husband remained with her parents, the defendant still continuing to call there; that after two or three years the husband and wife started housekeeping, and the defendant, on the invitation of the husband, continued to visit them. The husband was during these visits sometimes at home, and sometimes he was not; but he was always