Cane v. Cane. Cane was struggling to free himself from a bond which made his life a burden to him. In such a contest he was not likely to lose sight of any of his advantages, nor to cast aside his most trusty and efficient weapon. It is impossible to believe that either Mr. Cane or his counsel did not see and appreciate the importance and value of Scott's evidence. But no effort was made either to secure him as a witness or to procure his evidence subsequently. As the proofs now stand, it is shown that every circumstance indicating guilt surrounding Mrs. Cane was the work of Scott. Can it be doubted that the reason that Mr. Cane did not want Scott as a witness was because he knew too much? But more, if Mrs. Cane visited these places for a criminal purpose, it was easy for Mr. Cane to prove it. The woman who accompanied her on each occasion was Scott's accomplice, and knew just how Mrs. Cane was induced to go to these places. Mr. Cane has made no effort to obtain the testimony of this woman. The reason is obvious. The case against the wife utterly fails. If it were stronger, indeed if guilt was shown, still I think it would be the duty of the court to deny the prayer of the husband in view of his conduct. A husband who seduced his wife before marriage, and thus makes himself acquainted with her weakness, and, what is more, responsible for the loss of that strength of character which conscious purity always gives a woman, places himself in a position where the law, in consequence of his wrong, requires him to shield his wife with peculiar vigilance, and to see to it that she is not exposed to temptations that he knows she cannot withstand. If such a husband sees his wife in danger, if he sees her in a position where she is likely to become subject to the power of the blandishments of a man whose character he knows to be bad and intentions evil, and he does nothing to warn her, or to withdraw her from his influence, but allows her to be led on to her ruin and his dishonor, his conduct, in law, amounts to consent, and the statute declares that no divorce for adultery shall be decreed when it appears that the party complaining consented thereto. Chancellor Zabriskie declared in Hedden v. Hedden, 6 C. E. Gr. 61, that if a husband sees what a reasonable man Cane v. Cane. could not see without alarm, or if he knows that his wife has been guilty of ante-nuptial incontinence, or if he has himself seduced her before marriage, whereby he is put upon his guard respecting her weakness, he is called upon to exercise peculiar vigilance and care over her, and if he sees what a reasonable man could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the result. The petition of the husband must be dismissed, with costs. An additional counsel fee will be allowed. The defence has been attended with unusual labor and difficulty. This has been so in consequence of the artful manner in which circumstances indicating guilt have been thrown around the wife. $150 has already been allowed; $500 is, under the circumstances, a very moderate allowance. An additional allowance of $350 will be made. In the suit by the wife against her husband, though several adulterous acts are charged, but one is proved. That is proved by a single witness, and if it was committed at all, was committed in the summer of 1869, more that fifteen years ago. The proof in support of the charge is very unsatisfactory. The witness who swears to the act admits that when inquiry was first made of him, he did not recollect the fact; that it had entirely faded from his memory, and that it was not until he had made an effort that his recollection of the fact returned. Standing alone and uncontradicted, I think it might well be doubted whether the measure of proof thus furnished would be sufficient, in any case, to justify a judgment of divorce. The husband and his alleged particeps criminis, however, both deny positively that they were ever criminally intimate. In this condition of the proofs, it is clear that no divorce should be granted, and that the petition of the wife must also be dismissed. Domestic Telegraph Co. v. Metropolitan Telephone Co. THE DOMESTIC TELEGRAPH AND TELEPHONE COMPANY, OF NEWARK, NEW JERSEY υ. THE METROPOLITAN TELEPHONE AND TELEGRAPH СомPANY, AND THE NEW YORK AND NEW JERSEY TELEPHONE COMPANY. 1. A court of equity may, in a proper case, decree the specific performance of a contract to renew a license. 2. Specific performance of a contract will not be decreed, unless the contract has actually been concluded; or, if any material part of it still rests in treaty, and remains to be settled by further negotiation, equity will not interfere. 3. No court has power to make a contract for persons sui juris, nor to compel them to agree with each other. 4. Where an injunction is sought in aid of action for specific performance, if the complainant's case is strong enough to render it at all probable that the complainant may, on final hearing, be able to convince the court that he is entitled to relief, the court will, as a general rule, award the writ, but will refuse it in cases where it appears that the contract sought to be enforced has not yet been made, or, if made, that it is so incomplete or uncertain as to be unenforceable. On motion for an injunction heard on bill and affidavits and answer and affidavits, and order to show cause. Mr. Henry Young and Mr. Thomas N. McCarter, for complainant. Mr. Joseph D. Bedle, for defendants. VAN FLEET, V. С. The main object of the bill in this case is to procure a decree directing the specific performance of a contract. The complainant asks for an injunction, pending the suit, as auxiliary to the principal relief sought; in other words, to preserve to it the possession and use of certain property, which it is now unquestionably entitled to hold and use, if it shall be made to appear on Domestic Telegraph Co. v. Metropolitan Telephone Co. final hearing that the complainant is entitled to the relief it seeks. The question now before the court is, whether an injunetion shall be granted or not. a The contract on which the complainant rests its right to relief was made by the complainant with the Bell Telephone Company, of New York, and bears date August 6th, 1879. Prior to the date last named, the Bell Telephone Company, of New York, had, by force of a license granted to it by the Bell Telephone Company, of Boston, acquired an exclusive right to use, and of licensing others to use, the patented instrument, known as the Bell telephone, in all the territory lying within radius of thirty-three miles from the New York city hall in all directions, and also in all the territory of Long Island, in the state of New York, and of Monmouth county, in the state of New Jersey, but excluding any part of the state of Connecticut lying within such boundaries. The contract is lengthy, and contains a great many provisions having no connection with the complainant's present claim. Reference will only be made to such parts of it as are necessary to show its general character, and to the particular provision on which the complainant's action is founded. It provides, in the first place, that the Bell Telephone Company, of New York, shall furnish to the complainant, in such quantities as may be required, Bell telephones to be used by the complainant in establishing a system of telephonic inter-communications within the city of Newark, in the county of Essex, and the townships of Harrison and Kearney, in the county of Hudson, but not elsewhere. The complainant binds itself to pay an annual royalty on each telephone delivered to it; to prosecute the business of introducing telephones diligently, not to use any other telephones than those furnished by the Bell Telephone Company, of New York, and not to permit any connection to be made between its lines and any other lines, except such as may be owned or controlled by the Bell Telephone Company, of New York. The Bell Telephone Company, of New York, reserves to itself the exclusive right of establishing telephonic communication between the complainant's district and other districts, and to regulate the charges on messages passing from one district into Domestic Telegraph Co. v. Metropolitan Telephone Co. another. It also agrees that, so long as the complainant keeps its contract, it will not authorize the use of the Bell telephone, or any other telephone, by any other person within the complainant's district, so as to interfere in any manner with the complainant's business. The contract also provides that a failure by the complainant to prosecute the business of introducing telephones diligently, or a violation by the complainant of its covenant not to permit a connection to be made between its lines and any other lines, except such as may be owned or controlled by the Bell Telephone Company, shall, at the option of the Bell Telephone Company, of New York, operate to end the contract, and confer upon the Bell Telephone Company, of New York, a right to take possession of the complainant's district, and carry on business therein as though no contract had been made. By the ninth paragraph, it is agreed that the contract shall remain in force for the period of five years, commencing on the 1st day of September, A. D. 1879, and terminating on the last day of August, A. D. 1884, at which latter date the complainant promises that it will deliver, or cause to be delivered, to the Bell Telephone Company, of New York, or to its agents, all telephones theretofore delivered to it and not previously returned. The eleventh paragraph is the one on which the complainant grounds its right of action. It is as follows: "If, at the expiration of the above period of five years, the party of the first part shall not desire to conduct the business of telephonic district exchange directly within said district of the party of the second part, or of merging said district into some other district, but shall, on the contrary, desire to have such business conducted for it, then, and in such case, the party of the second part. shall have the first right of acquiring the license or agency to conduct such business at such rate or rental, and upon such terms as may then be fixed and determined by the party of the first part." On the 1st day of July, 1880, the Bell Telephone Company, of New York, sold, and formally assigned, its telephone lines and business, and also all its rights under the contract with the complainant, to the Metropolitan Telephone and Telegraph Company, one of the defendants to this suit. The complainant assented to this transfer, and has since then fully recognized the |