Adams v. Adams. the interrogatories, they were rigidly confined on the subject, to the period of the visit commencing on the 22d of March. They are both asked to describe the location of room, number 150, but they are not asked if the defendant occupied it. The omission is full of meaning. I can scarcely think it was the result of an oversight. At all events, it leaves the defence entirely inadequate; it is an answer to the letter, but not to the substance of the case proved by the petitioner. If the case had closed at this point, I should have held the defence a failure; but there is other evidence before me, showing that the defendant did occupy, near the time in question, this room, number 150. The testimony of Richard J. Page appears to me to put this matter at rest. This witness was a book-keeper in the Delavan House, and he has deposed to the effect that the defendant was at that hotel about the latter part of the month of February, or the beginning of March, 1864, and that a part of the time during this visit, he had a room on the inside of the hall, being a number between 145 and 154. The witness shows that he is well founded in his opinion, by a reference to occurrences, so as to preclude all probability of mistake. In addition to this very weighty evidence, the deposition of James Burrowes, has been also introduced, in which he testifies to a conversation, in which the defendant admitted that the woman, Louisa Butts, had been to his room, but alleged that she came to see him with regard to one of her relations, who had been connected with the army. The conversation thus deposed to, took place prior to the taking of any testimony in the cause, and at that time it would seem that there was no intention to rest the defence on a denial that the woman, Louisa, did visit the room of the defendant; but this line of defence became obviously impracticable under the developments of the petitioner's case, and hence the adoption of another theory. But the fact of the admission of the defendant, of the presence of this woman in his room, remains uncontradicted and unexplained. In view of the evidence on both sides, I think the defendant has suc Adams v. Adams. ceeded in proving that the act of adultery which he perpetrated in room, number 150, in the Delavan House, was not committed on the 25th of March. This proof cannot in the least shake the case of the petitioner. But there is still another consideration which bears upon this point, and indeed gives a complexion to the entire defence. This is the fact that the defendant has not been examined as a witness in his own behalf. The case made by the petitioner was one which appeared to render it not only proper, but, as I think, absolutely necessary for the party charged to attest his own innocence. It was the only direct evidence in the way of negation, in his power. However sanguine his temperament, he could not fail to perceive the gravity of the case against him. On his own side, he had attempted to impair the confidence of the court in the evidence of his adversary; but his own oath would tend to the entire vindication of his character. In his position, I cannot but think that his own oath became an indispensable part of any defence which he could interpose, and I should regard its absence, under any circumstances, as a most suspicious incident. But the conduct of the defendant in this respect is open to still graver observation; for he has not only withheld his oath from the case, but he offered himself as a witness, in a manner which has left no doubt in my mind, that such offer was not made in good faith. I have endeavored to give the circumstances a more favorable aspect, but, after full consideration, I am unable to see how, except by closing my eyes in wilful blindness, I can regard the defendant's conduct in this regard, in any other light than that above indicated. The offer referred to was made in this wise. On the 27th of November, 1865, the defendant was, in person, before a master of this court, in Jersey City, who for several days previous, had been occupied in taking the evidence offered by him. At the hour of eleven o'clock at night, on the day designated, the defendant, in the language of the memoran Adams v. Adams. dum of the master, "proposed to be sworn in the cause, as he is compelled to be in Albany the balance of this week, which is the residue of the time allowed him for taking testimony, and that he cannot appear before the master in New Jersey again, before his time expires under the order of the court." The counsel of the petitioner expressed his willingness to go on, but the master, as a matter of course, refused. Now, will any person believe that this offer was made bona fide? What was the business of such importance which compelled the defendant to absent himself? The case is silent upon the subject. Why had he not been examined. before? He had just been engaged for hours, if not days, in taking depositions to show the hostility of his mother-inlaw to him, and it surely is unreasonable to suppose that he thought these as important to his defence as his own sworn denial of guilt, and the elucidation which he alone could give of the entire case. Besides, a few days after this, the record discloses the fact that he is almost uselessly present by the side of his counsel, while witnesses are being examined on written interrogatories annexed to a commission. This entire transaction has left not a particle of doubt in my mind, that this proffer by the defendant of himself as a witness in the cause, was not made in sincerity, but with a perfect assurance that his examination was impracticable. It is scarcely necessary for me to remark how much an artifice of this kind should weigh against its contriver. In my opinion it falls little short of an acknowledgment that the defendant could not deny, under his oath, the offence imputed to him. Upon the whole case, my conclusion is, that the case of the petitioner is fully made out by the proofs adduced, and that her prayer should be granted. I shall advise his honor, the Chancellor, in accordance with this view. Randall v. Morrell et al. ERASTUS RANDALL vs. ABRAHAM MORRELL and HORACE E. BROWNE. 1. Upon a bill between partners for closing the affairs of a partnership, after a dissolution of the firm, the insolvency of the defendant will entitle the complainant to the appointment of a receiver, and an injunction 2. Where the answer is not responsive to the allegations of the bill, the injunction will be retained. 3. A partner, defendant to a bill for an account, will not be allowed to take possession of funds to which the firm has claims, until his right shall have been established by final decree. 4. The complainant having failed to prosecute his suit with proper diligence, charged with the costs of the motion to dissolve. This cause was heard upon a motion to dissolve the injunction which issued upon filing the bill. Mr. Ransom and Mr. I. W. Scudder, for defendants, in support of the motion. Mr. Gilchrist, for complainant, contra. BEASLEY, C. J., sitting as Master. This is a controversy between partners. The bill alleges that in the year 1855, the complainant engaged in the commission business with the defendant, Morrell, and that at a subsequent period, the other defendant, Browne, became a member of the firm. This connection of Browne with the concern is denied by him, and as the fact is immaterial to the present purpose, that denial will be accepted as true. The objects of the suit are to obtain an account, the appointment of a receiver, an injunction to prevent the defendant from collecting the debts, or disposing of the property of the firm, and to have the partnership affairs wound up under the surpervision of this court. The injunction, as prayed for, was granted on the filing of the bill, and the present motion is to obtain its dissolution. Randall v. Morrell et al. The grounds upon which the injunction was originally obtained, and upon which it is now sought to be sustained, consist principally of allegations of fraud and insolvency on the part of the defendant. These charges are various and comprehensive, and have elicited a voluminous answer, which is deformed by much irrelevant matter. Affidavits also have been taken on both sides, which relate to many minute affairs, not pertinent, and which can have no influence on the decision of the present issue. Not content with endeavoring to repel the imputations of fraud against himself, contained in the bill, the defendant, in his turn, becomes the accuser, and charges the complainant with misappropriations of the funds of the co-partnership, and with other conduct, scandalously fraudulent. Assuming, as the truth, but a small part of the delinquencies charged by these parties against each other, it is clear that it would be the duty of the court to prevent either from obtaining possession of the assets of the firm, as well for the purpose of enforcing a decent honesty in the settlement of the partnership affairs, as for insuring ordinary justice to creditors. But it is not necessary, nor would it be proper for me, on this argument, to attempt to deal with the mass of these criminations, for most of such questions can only be fairly adjudged on the final hearing. At present, it is sufficient to inquire whether the defendant has made it clear, that if he shall be permitted to collect the moneys of the firm, they will be safe in his hands, and that they will be appropriated as equity requires. In the view which I take of this question, whether regarded as a matter of fact, or with reference to the rules of law which bear upon it, but a very few of the particulars so elaborately discussed by counsel are involved, necessarily, in its consideration. Those circumstances which have led me to a result, I will state, with all the brevity which is consistent with the clear indication of the facts and legal principles on which my decision rests. It is admitted that the partnership has been dissolved by |