Ten Broeck v. Jackson

• Decision Date: 13 October 1906
• Citation: 71 N.J.E. 582,69 A. 488
• Parties: TEN BROECK et al. v. JACKSON et al.
• Court: New Jersey Court of Chancery

69 A. 488

71 N.J.E. 582

TEN BROECK et al.

v. JACKSON et al.

Court of Chancery of New Jersey.

Oct. 13, 1906.

Suit by William E. Ten Broeck and another against Charles A. Jackson and others. Bill dismissed.

Freeman. Woodbridge, for complainants. Alan Strong, for defendants.

STEVENS, V. C. This is a peculiar case. Emma J. Jackson, one of the complainants, alleges that on February 12, 1894, her husband, Thomas A. Jackson, stole from her person, while she was asleep on a lounge, her pocketbook, containing $2,000. She alleges, further, that a part of this sum was on July 6, 1902—that is, over eight years afterwards—used by him to pay off a mortgage on his property. He died on February 23, 1903, and this suit is brought against his executor, against a devisee, and against the executor and infant heir of another devisee. The bill prays for an account, and asks that the money used to pay off the mortgage may be charged upon the land mortgaged.

There is no direct evidence to support the allegation that the money was stolen or taken, as alleged. There is little or no circumstantial evidence. The proof of it consists in an alleged admission made to a detective by the name of Oliver, to which I shall presently advert. It appears that about a year and a half before the money is said to have disappeared $2,000 was paid to Mrs. Jackson on two mortgages held by her. This sum, she says, she carried constantly in her pocket after that time. She was a widow when the money was paid to her, but was married to Jackson, a widower, on October 14, 1894. They lived together up to the time of his death in a house owned by him, on George street, New Brunswick. On February 12, 1894, early in the evening, she says she went to 191 George street, a house owned by her, about a block away from their residence and then unoccupied, to look after a fire which she was keeping up to prevent the water pipes from freezing. She testifies that she had the money when she went to this house, and that she first missed it on her return home. The allegation of the bill is "that between the hours of 5 and 11 o'clock p. m. the said Thomas Jackson, the husband of the said Emma Jane Jackson, fraudulently abstracted the said sum of $2,000, cash money, from the pocket of the dress of the said Emma Jane Jackson, while she, the said Emma Jane Jackson, his wife, was sleeping, without her knowledge or consent." There is not any legal proof of her husband's presence on this occasion. Mrs. Jackson did, indeed, state against objection that her husband entered the house after dark; but I think that this must be treated as evidence addressed to the judge on the voir dire, and that she was not a competent witness to prove even this fact as evidence in the cause, for the "transaction" began the instant she recognized him. No one else was called to prove that the husband was in the company of his wife at any time during that day, so, as I have said, direct proof of the taking fails altogether. The only evidence, then, is that of Oliver. Mrs. Jackson testifies that, suspecting her husband, she employed him as a detective within a few days after the alleged taking. He says that he had two interviews with Jackson; that he could not give the conversation, as it was 11 or 12 years ago, but that he could give "the substance." On being asked for this substance, he replied: "I had two interviews with him, and at the second interview he admitted that he had taken the money." On being asked for the words in which the admission was made, he replied: "Well, he said he got that $2,000. He finally said, 'Well, what are you going to do about it?'" On cross-examination he said: "I met him once or twice upon the street, and had talks with him once or twice." On being pressed further, he said he could not tell whether he did not tell Senator Van Cleef that Jackson made no admissions to him, and he concluded by saying: "I did tell Senator Van Cleef that I did not pretend to remember what was said, and I don't either. I cannot remember what Mr. Jackson said to me, or what I said to him." I think that any one perusing this testimony, and regarding the halting way in which it was given, will not be disposed to consider it as very satisfactory. The detective does not speak from notes made by him at the time, but from memory only. Zealous in the cause of his employer, he may have drawn an inference of guilt from what Jackson said or failed to say in answer to...