Sawyer v. Sawyer.

and in that way retard the dispatch of business by the Court. The expense of taking testimony will, however, to some extent, check this evil. Each party must pay for taking down the cross-examination of his adversary's witnesses, as well as the direct examination of his own; and a protracted direct or crossexamination on immaterial facts, by either party, would only increase his expenses, without occasioning a corresponding benefit to himself or injury to his opponent.

After a witness has been once examined and his examination has been closed, he cannot be re-examined to the same facts, unless by order of the Court; but he may be re-examined as to facts to which he has not been examined, or to new matter arising out of the testimony of other witnesses. 1 Hoff. Ch. Prac., 464; Swinford v. Horne, 5 Madd. R., 379.

Having disposed of these preliminary questions, I proceed to the merits of the case. Two objections were made by the defendant's counsel to granting the prayer of the petitioner; first, to the character of the evidence, which, it was said, consisted entirely of the admissions or confessions of the defendant, and that the Court should not grant a divorce on such testimony, unsupported by other evidence; secondly, that the petitioner was as much to blame as the defendant, and was therefore entitled to no relief, the statute providing that no divorce shall be granted where the party complaining is guilty of the crime set forth in his or her petition.

In Baxter v. Barter, 1 Mass. R., 345, it was held that the confessions of the party, uncorroborated by other circumstances, were inadmissible to prove the fact of adultery. *In Holland v. Holland, 2 Mass. R., 154, which was [*52] also a case of divorce for adultery, the Court say: "The rule is established by uniform practice that the confession of the party, unsupported by other evidence, is not sufficient to ground a divorce upon." In Betts v. Betts, 1. J. C. R., 197, which was a bill for a divorce, charging the defendant with adultery and cruel treatment, the Chancellor said, it "is well settled, that the confessions of the party are admissible on a charge of adultery, if supported by other proof; but unless

Sawyer v. Sawyer.

corroborated by other evidence and circumstances, they are not sufficient ground for a decree." In cases of adultery, the right to a divorce consists in the proof of a single fact, and if the confessions of the party were to be received as sufficient proof, there would be danger of collusion. It is to guard against this, that other proof is required in corroboration of the defendant's confessions. The same rule must apply to confessions as evidence in all other cases of divorce from the bonds of matrimony, with this limitation, that, where there is less danger of collusion, or it could not be practiced so easily, the corroborating facts or circumstances need not be of so decisive a character. The object of the rule is to guard against collusion, not to obstruct the administration of ustice. Where the circumstances of the case are such as to repel all suspicion of collusion, and leave in the mind of the Court no doubt of the truth of the confessions, it should act accordingly. The evidence in the present case is voluminous, and somewhat contradictory. But, if the defendant's admissions, made at different times and to different individuals, under circumstances that repel everything like collusion, are worthy of credit,-and it seems to me there can be no doubt on the question,―his cruel treatment of

the petitioner is fully made out. His admissions of [*53] personal violence to her, both before and after she had

left him the first time on account of his ill treatment, are clearly proved; and corroborated in one instance by marks of violence seen upon her face, to which several witnesses have testified. This was before she left him the first time; and, when she left him the last time, it was on account of personal violence. His confession of this fact, as well as of abusing her, and using indecent and cruel language to her, is proved by several witnesses. Mr. Lerned in his testimony says, that he admitted he kicked her on the morning she left his house, and that he turned her out of doors.

The defendant has failed to show that she was guilty of like cruel treatment of him. The evidence of the only witness examined for that purpose, is too inconsistent with the previous statements made by the same witness to third persons, to entitle it

Edwards v. Hulbert.

to much credit, supposing it in other respects to be sufficient to make out a defense under the statute, which I think is not the

case.

The Court will reserve the question whether the decree to be entered in this cause shall be for a divorce from the bonds of matrimony, or from bed and board only, until the next term of the Court. This is done, as there is doubt whether the Court can grant alimony, in case a decree should be entered dissolving the bonds of matrimony,' and that the parties may have an opportunity to adjust their difficulties between themselves before that time, should they be disposed to do so.

THOMAS EDWARDS v. JOHN HULBERT.

[54]

Where, by treaty between the United States and the Ottawa and Chippewa Indians, the sum of $300,000 was set apart to pay claims against the Indians, to be allowed by commissioners, and, E. having a claim against them, H. procured its allowance to himself as purchaser of the claim, when he had no right to it, and received the money, it was held, that E. could not sustain an action at law against H. for the money, but that in equity H. would be considered a trustee for E. to whom the money of right belonged.

Where a defendant who should have demurred to discovery only, demurs to both discovery and relief, his demurrer will be overruled."

This was a demurrer to the bill of complaint.

The bill states that the complainant was an Indian trader at the Saut de Ste Marie. That in 1826 he had a claim of $340 against the Ottawa and Chippewa Indians, for goods sold to them, and for goods wrongfully taken by them. That, in 1836, a treaty was made between these Indians and the Government

1

The law is now amended so that alimony may be granted "upon divorce for adultery, committed by the husband, or on account of his being sentenced to confinem nt to hard labor, or for any other cause. Laws 1843, p. 7. 2 Burpee v. Smith, post, 327.

1w 54 1w329

Edwards r. Hulbert.

of the United States, providing, among other things, that the Indians should pay all proper and just claims existing again them, which should be allowed by commissioners to be appointed by the Government; and $300,000 was set apart by the treaty for that purpose. In September, 1836, the commissioners met at Mackinac, and the defendant procured the allowance of the aforesaid claim of $340 to himself, in the following words: "Of the total loss by Thomas Edwards, in 1826, amounting to $340, which comes to the claimant by purchase, and there is evidence the articles were supplied to the Indians in the ceded district. It must therefore be allowed." The bill charges that the defendant had received the $340 and applied it to his own use, and

that he had no right to, or interest whatever in the claim, [*55] *which belonged to the complainant, but which the defendant had procured to be allowed to himself by the commissioners. The defendant demurred.

J. F. Joy, in support of the demurrer.

J. S. Abbott & A. D. Fraser, contra.

THE CHANCELLOR. The first objection taken to the bill is that the complainant has a remedy at law. I know of no case, and none was cited by the defendant's counsel, in which a court of law has carried the action for money had and received so far as to reach the complainant's case. The sum of $300,000 was set apart by the treaty to pay such claims against the Indians as should, on examination, be allowed by the commissioners. A mere claim against the Indians could give no right or interest in this fund, to acquire which, the party must have his claim allowed by the commissioners, and then, and not before, he would have an interest in the fund to the amount allowed him. The $340 were allowed to the defendant, and not to the complainant, and, as it is the allowance by the commissioners, and not the pre-existing debt against the Indians, that in law gives a right to the money, I think courts of law would have to go much further than they have heretofore gone, to give redress in such a case. If the claim had been allowed

Bronson v. Green.

to the complainant, and the defendant had received the money, the case would have been different. The complainant's remedy would then have been at law, and not in this Court. Taking the facts as stated in the bill to be true, the defendant must be considered in equity in the light of a trustee, and as having presented the claim to the commissioners, obtained its allowance, and received the money upon it, in trust for the complainant.

*Another objection is, that the bill charges the defend- [*56] ant with an indictable offense, in obtaining money under

false pretenses. I do not think so; and, even if it did, the demurrer is too broad for the defendant to avail himself of the objection. It is to both discovery and relief, whereas it should have been confined to the discovery alone, and to such parts. of the bill as implicated the defendant, Robinson v. Smith, 3 Paige R. 231; Kuypers v. The Reformed Dutch Church, 6 Paige R. 570.

Demurrer overruled.

OLIVER BRONSON et al. v. COGSWELL K. GREEN et ai.

Contracts are to be construed according to the intention of the parties, as expressed in them.1

Where several contracts are executed by the same parties at the same time, and relating to the same matter, they are to be construed together.? Where one writing refers to another, the intention of the parties is to be gathered from the two construed together.

Where one contract grows out of another to which it refers, and both are in writing, the first may be looked into to ascertain the intention of the parties in the latter, if it is not clearly expressed therein.

1 See Bird v. Hamilton, post, 361; Norris v. Showerman, post, 206; s. c. 2 Doug., 16.

*Norris v. Hill, 1 Mich., 202; Dudgeon v. Haggart, 17 id., 275, 280, where the cases are fully collected.

In construing an instrument, the whole of it should be considered together,

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