Elizabeth "Eliza" Quick-Walker Vs Dr. Joseph Walker

Dr. Joseph Walker was born 28 May 1804 in Natick, MA. to Josiah Walker & Sarah Jenkins. He married Eliza Jane Quick on 30 Aug 1868 in San Francisco, CA. His 3rd marriage.

DR. Joseph Walker made millions of dollars selling Vinegar Bitters. I am not 100% convinced he was a real doctor. 

He and Eliza had 2 children together. Charles Walker born 26 Sep 1867 and William "Willie" Walker both born in Stockton, CA. (Yes I know the date doesn't jive with marriage date).

Eliza was previously married to James Payson Brenton on 19 Jun 1851 in Spencer, IN. They had a son Henry Glenn Brenton 1852-1917. James was drunkard and she filed for divorce 4 Mar 1868 and recieved it on 17 Aug 1868 in Stockton, CA.

Joseph was married to a Dora, they had a son, Gary Walker.

He was married to a Sarah Ulshart and they had Joseph E Walker Born 1842 NY, he died 19 MAR 1879 • Natick, Middlesex, MA. He was only 40 yrs old.
They also had Andrew C. Walker and Sarah M Walker.

He was also married to a Eleanor they had a son named  Josiah Walker.

There are more children I just haven't found names as of yet.

Below are some newspaper articles about how Joseph sold Vinegar Bitters and made his fortune and the family fighting over his money.

https://www.newspapers.com/clip/46226559/joseph-walker/

Alimony Suit

New York Daily Herald
New York, New York
22 Feb 1876, Tue  •  Page 8

https://www.newspapers.com/clip/46223267/eliza-jane-quick/

The Indiana State Sentinel
Indianapolis, Indiana
12 Jan 1876, Wed  •  Page 2

Joseph and Eliza have a falling out, at this point he is in his 70's and she is in her late 40's

This clipping is about a suit against Dr. McDonald and the Vinegar Bitters.

https://www.newspapers.com/clip/46224780/joseph-walker/

The Mail
Stockton, California
22 Aug 1888, Wed  •  Page 3

https://books.google.com/books?id=IueeOzXMU3AC&pg=RA5-PA2&lpg=RA4-PA4&focus=viewport&dq=Pietro+Balbo&output=text

This is the link above, for the case in Google Books, a great resource.

I found a Supreme Court Case:

Said plaintiff, humbly complaining of said defendant for a supplemental complaint herein, respectfully alleges :—

1. That plaintiff and defendant were united in marriage, at San Francisco, in the State of California, on or about the 30th day of August, 1868; that they are now, and have been since August, 1869, inhabitants of the-State of New York; that there 3 has been no issue of said marriage, and that plaintiff is now forty-three and defendant seventy-three years of age.

D '2. That plaintiff”s maiden name was Eliza Jane
Quick ; that she was united in marriage, at Spencer,

in the State of Indiana, on or about the 19th day of June, 1850, to James P. Brenton; that there are two children, now surviving, issue of said marriage, to Wit, \Villie \Valker, now thirteen years of age, and Charles Walker, now ten years of age; and that said children live with plaintifi ; that said children were born at Stockton, in the State of California; that said child, Charles \Valker, was born on or about the 26th day of September, 1867 ; that said James P. Brenton had not for eleven months and upwards prior to the birth of said child been within the limits of said State, or had possibility of access to plaintiff; and that during the whole of said period plaintiff was an actual inhabitant of Stockton. That defendant was the father of said child; that immediately upon his birth, plaintiff a11d defendant took up their residence at San Francisco, and that from that time plaintiff and defendant lived together as husband and wife at San Francisco, until their marriage aforesaid on the 30th day of August, 1868; that on or about the 4th day of March, 1868, plaintiff instituted a suit for divorce against said James P. Brenton, at Stockton, and that such proceedings and testimony were taken and had in said suit; that on or about the 17th day of August, 1868, a decree of absolute divorce was duly made and entered therein in plaintiff’s favor, and that the Court making said decree Was one of competent jurisdiction.

3. That on plaintiff’s said marriage Witl1 defendant, defendant publicly acknowledged that he was the father of said child; that he received said child as his own, with plaintiff’s consent, into his family, and otherwise treated said child as such, and as if legitimate to said marriage between plaintiff and defendant, and that plaintiff and defendant continued to live happily together as husband and wife, at San Francisco, aforesaid, until on or about the month of August, 1869. That defendant has at all times since his said marriage with l1 plaintiff, received said child, with plaintiff’s consent, in his family, and publicly acknowledged himself to be the father of said child, and has at all times otherwise treated said child as his own and as if legitimate to said marriage between plaintiff and defendant; nevertheless, plaintiff shows that no legal proceeding has ever been taken in respect to the legitimacy of said child, except as hereinafter recited, and that defendant has hitherto omitted to acknowledge and declare the fact that he was the father of said child, in writing, and to place the same of record, as permitted and provided by the laws of said State : and that by reason of the promises, as plaintiff is advised and believes, the presumption of the law is that said child is a legitimate child of said first marriage, and neither the child nor an heir of the defendant ; yet so it is, that notwithstanding the facts above recited were within the personal knowledge of many people at the time, and notorious in the community in which they happened, the witnesses to support them and overthrow said presumption are now few, infirm and aged.


4. That the laws of said State, then and now, permit decrees of legitimacy and illegitimacy, and legitimation by act of the parties, and that the following are extracts from the statutes of said State upon this subject :—

“Every illegitimate child shall be considered as “ an heir of the person wl1o shall, in writing, signed “in the presence of a competent witness, have acknowledged himself to be the father of such “child, and shall, in all cases, be considered as

“heir of his mother, and shall inherit her or his “ estate in whole or in part, as the case may be, in “ the same manner as if he had been born in lawful “ wedlock ; but he shall not be allowed to claim, as “ representing his father or mother, any part of the “estate of his or her kindred, either lineal or col“lateral, unless before his death his parents shall “have acknowledged him as aforesaid, or adopted “ him into his family, in which case such child and “ all the legitimate children shall be considered as “‘ brothers and sisters, and on the death of either “of them, intestate and without issue, the others “shall inherit his estate and be heirs as hereinbefore provided, in like manner as if all the children “ had been legitimate, saving to the father and “mother respectively their rights in the estate of “ all the said children, as provided hereinbefore, in “like manner as if all had been legitimate.”

(Rev. Stat. of Cal., 2,330, sec. 2.)

“The father of an illegitimate child, by publicly “ acknowledging it as his own, receiving it as such, “ with the consent-of his wife, if he is married, into “ his family, and otherwise treating it as if it was a “legitimate child, thereby adopts it as such, and “ such child is thereupon deemed for all purposes “ legitimate from its birth."

(Civil Code of Cal., sec. 230.)

5. That plaintiff and her friends, while defendant was yet in humble circumstances, and at Stockton and San Francisco aforesaid, and in or about the years 1865, 1866, 1867, 1868 and 1869, both before and after said marriage between plaintiff and defendant, rendered defendant pecuniary aid and great service, including the personal service of plaintiff in exploiting a medicine, and in establishing the same, and the business thereof, since then and now known as “Dr. Walker's California Vinegar Bitters,’.’ and that said medicine and business were originally exploited and built up by the joint exertions of plaintiff and defendant, upon defendant's promise to marry plaintiff, and in view of their marriage. That on or about May 1st, 1868, defendant, at- San Francisco aforesaid, executed a contract in writing, vesting the entire control and management of said business and property in R. H. McDonald & 00. until May 1st, 1888; that said contract was an absolute power, coupled with an interest, and in and by which the net profits were to be and are equally divided between said firm, as agents, and the defendant, as principal. That said firm was composed of Richard H. McDonald and John C. Spencer, and that said contract was ma.de by them with full knowledge of the relations between plaintiff and defendant; and plaintiff further claims and alleges, on information and belief, that after said marriage between plaintiff and defendant, said medicine was copyrighted in the name of Richard H. l\IcDonald, J olin U. Spencer and Joseph Walker, and that the circumstances were such that the same, and the business and property thereto belonging, became, and was. at the time of defendant‘s change of domicile, hereinafter stated. common property bet-weei plaintiff and defendant, in accordance with and by virtue of the laws of said State.

6. That the laws of said State then and now provide for a species of property unknown to the statute law of this State, but known and recognized at common law, as she is advised, as common property, and that the following are extracts from the statutes of said State upon this subject :

“ Laws shall be passed more clearly defining the

13, 14, 15, 16, 17 ,18,“ rights of the wife in relation as well to her separate property as to that held in common with her “ husband.”

Con. of Cal., Art. II, Sec. 14.

“All property acquired after the mawwiage, by “either husband or wife, except such as may be “ acquired by gift, bequest, devise or descent, shall “ be common property.”

Rev. Stat. Cal., 3362, See. 2.

And which, by judicial construction by the Courts in said State, as plaintiff is advised, includes property acquired by joint efforts, joint funds, or by the joining together of separate funds :

“The husband shall have the entire management “ and control of the common property, with the “ like absolute power of disposition as of his own “ separate estate.”

M161, 3571, Sec. 9.

And, which by judicial construction by the Courts in said State, as plaintiff is advised, is not the power fraudulently to alienate such property, with a view to destroy the interests of the wife therein : “In case of the dissolution of the marriage, by “decree of any Court of competent jurisdiction, “ the common property shall be equally divided “ between the parties, and the Court granting the “ decree shall make such order for the division of “ the common property, or the sale and equal distribution of the proceeds thereof, as the nature of “ the case may require. Pro-m'(Zed that When such “ decree of divorce is rendered, on the ground of “adultery or extreme cruelty, the party found “ guilty thereof shall only be entitled to such portion of the common property as the Court granting “ the decree may, in its discretion, from the facts of “ the case, deem just and allow, and such allowance “ shall be subject to revision on appeal in all “respects, including the exercise of discretion by “ the Court below."


I bid, 3574, Sec. 12.

“Upon the dissolution of the community by the “death of the Wife, the entire common property “ shall, Without administration, go to the surviving “ husband; upon the dissolution of the community “by the death of the husband, one-half of the “ common property shall go to tile surviving wife, “ and the other half shall be subject to the testamentary disposition of the husband, and in the “ absence of such disposition, shall go to his “ descendants equally, if such descendants are in

"‘ the same degree of kindred to the intestate;

“ otherwise, according to the right of representation; and in the absence of such disposition, and “ such descendants, shall be subject to distribution “ in the same manner as the separate property; on “ the dissolution of the community by the death of “the husband, the entire common property shall “ be equally subject to his debts, the family allowance, and the charges and expenses of administration.”

Ibid, 3573, Sec. 11.

“In every marriage hereinafter contracted in this “ State, the rights of the husband and wife shall be “ governed by this act, unless there is a marriage “ contract containing stipulations contrary thereto.”

I bid, 3576, Sec. 19, 20,21, 23,24“ The parties to any marriage contract shall enter “ into no agreement, the object of which shall be to “ alter the legal order of descent, either with “ respect to themselves in what concerns the inheritance of their children or posterity, or with respect “ to‘ their children between themselves, nor derogate from the rights given by law to tile husband “ as to the head of the family, or to the surviving “ husband or wife, as to the guardian of their “ children.”

I bid, 3584, Sec. 22.

7.-That in or about the month of August, 1869, defendant changed his domicile from California to New York, and that he thereupon removed plaintiff and her said children to this State ; that they have ever since been residents of the City and County of New York ; that on such change of domicile plaintiff’s nearest of kin, next to her said children, were
a brother and sister, inhabitants of the State of Illinois, but that at said time, and ever since, defendant has had a large number of relations and family connections resident in or about or in the habit of visiting the City of New York, to wit: five brothers, one son by his first wife, and two sons and seven step-children by his second Wife, that nearly all were married, that some had children, and some children and grandchildren; that defendant aided each one who sought his aid, and shortly after such change of domicile begun a course of great improvidence. That his nett income from the business managed by said firm has been about as follows:

August 30, 1868, to July 31, 1869. .. $42,500 July 31, 1869, to April 1, 1871 . . . . . . . .. 49,940 April 1, 1871, to January 1, 1872 . . . . . . . . 68,928 January 1, 1872, to June 1, 1872 . _ .. 98,100 June 1, 1872, to August 19, 1872. . .. $53,000 August 19, 1872, to May 6, 1873 75,000 May 6, 1873, to January 1, 1874 _ . . . . .. 66,532 January 1, 1874, to January 1, 1876. . . . 176,837 January '1. 1876, to January 1, 1877. . . . . 78,000 Since January, 1877.... . .... .. ..... . ... 12.000


And plaintiff’ further alleges that since 1869, defendant has paid no attention to, and has given no effort whatever to the business from which his said income was derived. That out of his income from said business he improvidently gave away about forty thousand dollars a year for a number of years. mainly among his said relations and within about one year after such change of domicile, such was the force and influence of circumstances that defendant’s affections was wholly alienated from plaintiff, and with rare and brief intervals of kindness, his conduct toward plaintiff has ever since been cruel and inhuman and of the kind! hereinafter particularly recited.

8.-That from 1870 until about May, 1874, plaintiff and defendant resided at No. 260 \-Vest 11th Street, from then until about December, 1875, at No. 45 Charles street, from then until about August, 1876. plaintiff lived separate from defendant under circumstances hereinafter stated. From then until about July, 1877, plaintiff and defendant again lived together at No. 343 \Vest 15th street, at which places the acts of cruelty and impropriety hereinafter set forth took place.

That about 1870 defendant brought into his house Josephine Kelly, a girl of loose virtue. and notwithstanding her conduct and want of chastity was notorious, he kept her in his service for years. That about 1872 he brought into his house Alexander Henderson, a step grandson by his second wife, and his wife Dora and kept them in his service for years. That about 1874 he brought» into his house Nancy Jones, one of his step-daughter’s sisters-in law, by his second Wife, and kept her in his service for years. That the above four persons were servants in his household. That during all said years he kept in his house, as a friend, Alexander Miller who lived with plaintiff and defendant before marriage, that all these persons were unfriendly to plaintiff and otherwise unfit to be servants in, or inmates of, defendant‘s household, and that defendant, during all those years, invited and licensed the most lewd and grossly obscene language and conduct, and was in person habitually guilty of using grossly obscene language in respect to plaintiff, and of committing grossly obscene acts in his own house and elsewhere as hereinafter set forth.

9.—'I‘hat from 1870 until this date he has been habitually guilty of exposing the relations he held with plaintiff before marriage, and of representing her among his acquaintances as a most licentious and abandoned woman and of making unfounded charges of adultery against her in his own house and elsewhere. That he knew his said charges of her adultery were without color of truth when he made them, that he made them constantly and in such bulk as to excite the belief that plaintiff was an utterly abandoned woman, and that the result of his conduct was that he established her reputation to be that of an utterly abandoned woman, by reason of which she has long been wholly excluded from society and avoided by all women who care for their own reputation (except some firm friends intimately acquainted with the facts) ; that he has thus without color of fact, cause or provocation, charged plaintiff publicly in person and to her face, in his own house and elsewhere, with adultery with John Doe, Richard Roe, Paul Falk, Peter Grant, Thomas D. Hughes, Henry Hutchinson, Mr. Jenkins, Joseph Conrad, Mr. C' Stein, Alexander Miller, Garret Evans, Charles T. Jewett, Henry Carroll, Squire Wood. Philip Short, Michael Short, Arthur Short, John B. Perry, Charles Silverbrandt. Richard H. McDonald and others, whose names are known and unknown; that he has sent every one of the above charges under oath or in affidavits tending in that direction to the public, employed reporters to publish sortie of them, and has incessantly in season and out of season publicly made all the above charges. in person, and in the presence of all the persons above-named except those of John Doe, Richard Roe, Paul Falk, Peter Grant, Thomas 1). Hughes, Henry Hutchinson and t\Ir. Jenkins, none of which seven persons plaintiff has ever seen nor ha.s plaintiff ever been able to trace their identity with any human beings. living or dead.


10. Plaintiff alleges. on information and belief. that defendant. about 1871. at his then said residence, and at places now unknown to plaintiff, attempted to procure Arthur Short to inveigle plaintiff into the act of adultery ; that about 1873, at the then residence of his nephew, James E. Walker, and at places now unknown to plaintiff, he attempted to procure said \Yalker to get plaintiff to commit adultery with him; that about 1875, at the then place of business of Charles Silverbrandt. and at other places unknown to plaintiff, he, defendant, attempted. by offer of heavy bribes. by persuasion and threats, to procure said Silverbrandt to have carnal connection with the plaintiff, and to induce plaintiff to commit

adultery with him, and that about the same period, that he made a similar attempt to procure Henry Carroll to commit adultery with plaintiff; that in or about December, 1875, defendant forced plaintiff from his house, refusing to provide for her, and thereupon falsely and without color of fact, wrote plaintiffs said children, who were then at school in Jena, in Germany, that plaintiff had eloped with said Silverbrandt and was living with him ; that he

also, without color of fact, falsely and maliciously

gave out, and caused to be publicly circulated, that plaintiff was keeping a liouse of ill fame at No. Seventh avenue, a house she in fact then occupied ; that he also invited divers men at Berdan’s livery stable in 11th street to visit said house, as a house of ill fame kept by plaintiff; and plaintiff further alleges on information and belief. that he also employed divers men whose names are now unknown to plaintiff, to waylay pedestrians, and to point out said house to them as one of ill fame, kept by plaintiff, and that he did these acts with premeditated malice towards plaintiff.

11. Plaintiff’ further alleges that about 1875, at- his then residence. defendant called plaintiff a “damned bitch,” in the presence and hearing of plaintiff and the younger of said children and o_thers, on the sidewalk; that about 1874, at his then said residence, while plaintiff was in bed, supposed to be (lying, and in the presence and hearing of her physician, Fanny Trimble, Julia O‘Brien and others, defendant said in a loud and angry voice, “ God damn her, she’s too ugly to die ; if she says she‘ll——.” That said language, in respect to style, scope and direction, is a fair example of what defendant has said concerning plaintifi in her presence, and in the presence of others for years. And plaintifi alleges on information and belief, that said words are a fair portrait of plaintiff as on many occasions, to many persons he has represented her for years, while shedding tears, and pretending that he was shamed and bowed dow11 with grief at the extreme excess of her licentiousness, though at the same time he frequently set out her gifts for the life of a prostitute, describing them in detail.

And plaintiff further alleges that defendant has for years been habitually given to anger, and to periods of uninterrupted anger, averaging several days to a fortnight at a~ time, on which occasions, in all the years since 1870, he has shaken his fist at plaintiff, cursed and sworn and ground his teeth, stamped the floor or stood like a sentinel, or paced backward and forward at the entrance to her room, taking these circuits on every floor ; that these movements were continued for hours at a time, and sometimes were renewed each day, that they rose at times to violent mania, and were preceded and accompanied by an involuntary \ twitching and movement of the muscles of the mouth, involuntary movements of the fingers of both hands. and involuntary movements of the feet like rapid stamping; that on one occasion, when plaintiff was entertaining company, and in the presence of those assembled at his then said residence, about January 1, 1872, defendant having become angered at the washtubs or faucets in the kitchen, rushed into the parlor, jumped up on the table set for guests and swore and cursed furiously at wholly inanimate things.

12. Plaintiff further alleges, that by reason of defendant’s conduct as aforesaid, her health gave way, and that from 1870 to 1876 she was an invalid; that during all said years she Was, in fact, confined to the

house by sickness one-half the whole time, and actually in bed, bed-ridden, and waited on mainly by the wives of her husband’s relatives and neighbors one third the whole time, and that at times, as she is informed by her physician and friends, she was out of her mind; and she claims and alleges. that at such times as she was so out of her mind. that she was not responsible for her conduct, but she alleges, on information and belief. that things which happened at such times in the sick chamber in his own house were made use of by defendant. and were colored by defendant and said servants, and others in his employment who feared to displease him, in such a way that they could only be understood as conclusive of plaintiff’s utterly abandoned character, unless the slantlers were explained by sworn testimony in a Court of Justice. Plaintiff further alleges, that in or about 1874, at his said residence. in one of his said angry moods, he, defendant, seized plaintiff and violently shook her, and that extreme vigilance was necessary to prevent physical violence to her person by the defendant whenever he was in the angry moods or manias above recited; that defendant was cruel and inhuman in his conduct toward plaintiff; that it was unsafe and improper for her to cohabit with him, and that in December, 1875, defendant, having forced her from his house. and refused to provide for her, and long persisted in his refusal to provide for her, that on or about the 13th day of March, 1876. she begun this action for limited divorce, and that the complaint herein was served on or about April 17, 1876.

13. Plaintiff further alleges, that defendant, in or about the year 1872, begun to enter into improvident and unbusinesslike enterprises, and that particularly known as the Pulsometer Company, in Jersey City, in the State of New Jersey '; that he ran the saute against the advice of his business agents and friends, and that having sunk two hundred thousand dollars in it, was, about the year 1876, compelled to abandon it, a11d that he has since entered into improvident and unbusinesslike ventures, i11 which he has lost other large stuns; that his improvidence was such that he became barely able to meet his liabilities; that divers judgments went against him; and plaintiff alleges, on information and belief. that on or about the 17th day of April, 1877, he fraudulently, among other fraudulent acts by him done in the same direction for the same end, made, without consideration, an instrument in writing. which he, defendant, claims and pretends conveyed all his right. title a11d interest in the copyright and the business and property managed by said firm. to his son, Josiah Walker: and that the main reason prompting him the_reto was malice towards plaintiff and the improper influence of his said son Josiah; and that notwithstanding said transfer, that said firm declined to recognize it; that he has since drawn large sums from said firth, and that said firm have since advanced large sums to liquidate judgments and avoid the appointment of a receiver of the defendant.'s estate.

Plaintiff’ further alleges. on information and belief, that in or about the month of April, 1877, or at other dates in said year, defendant fraudulently conveyed to his said son Josiah. or to others whose names are unknown, his right, title and interest in large amounts of real estate owned by him in the State of New Jersey and ill the State of Massachusetts, chiefly at Keyport and Natick, and standing of record in his own name, and which, in former years, he had purchased. paying the purchase money from his income derived from said firm, and by virtue of said contract dated at San Francisco

aforesaid, and that such conveyances were without consideration, and were prompted solely by deceit, fraud and malice towards plaintiff, and by the improper influence of his said son Josiah, and others, upon him.

And plaintiff further alleges, that he has executed mortgages 011 his real estate, in which plaintiff never joined; that she did not join in the execution of any such deeds, and that she now holds inchoate dower, or some other contingent interest, in at least one hundred thousand dollars, in value of real estate, not subject to any such mortgages or deeds; that his relations and others enjoy large parts of said real estate without payment of rent, and that notwithstanding defendant’s income from said firm averages, of late years, about seventy-five thousand dollars a year, and his entire estate, freed from his interference, would net him at least one hundred thousand dollars a year as formerly; nevertheless. so it is, that he, the defendant, is, and has been for some time, falsely pretending to be insolvent, and in the hands of his friends, while his property, and his income as aforesaid. is disposed of without any judicial action whatever: and that by reason of the circumstances, plaintiff has long been unable fully to obtain the means of living, without judicial aid, and is now unable to obtain the means of living, without judicial aid, both in respect to the allowances she has or may have, and in respect to the method of enforcing the payment thereof.

14. Plaintiff’ further alleges, that in or about December, 1875, defendant forced plaintiff from his then said residence, refusing to provide for her, and instituted a suit against her in the Court of Common Pleas, in and for the City and County of New York, for divorce, on the ground of her alleged adultery;

that plaintiff answered, denying her guilt, and that such proceedings were taken and had in said suit; that the issues joined by the pleadings therein were settled in form to be answered by a jury, yes or no, and were confirmed, and ordered to he tried, by order dated on or about August 10, 1876. That in said suit, and in the complaint, and in affidavits therein, this defendant declared under oath that he Was the father of and claimed the custody of said child, and that this plaintiff denied his right thereto. That a commission to examine witnesses in the State of California, upon the subject of the illegitimacy of said child, was ordered on or about August 6, 1876, and that the interrogatories

therein were settled. That a trial of said~issues having been ordered as aforesaid, defendant thereupon sought a reconciliation to which plaintiff, finally consented on or about August 30th, 1876, but plaintifl’ shows and alleges that defendant sought said reconciliation in bad faith, and with intent to deceive, defraud and abandon plaintiff and his said child, and that having gone through the form of re-assembling, and re-habilitat.ing his household, that he attempted to dispose of his right, title and interest in the business and property managed by said firm, and having failed in it, for the reason as plaintiff is informed and believes, that said firm declined to consent, and for the further reason that as she is informed and believes, her own signature is necessary to a valid conveyance thereof, he, the defendant, fraudulently and with malice toward plaintiff intending to defeat the orders of the (lourt, in respect to her alimony, he, at the time, intending to abandon and refuse to provide for her, as well as for his said child, conveyed his entire estate of every name and nature, which had any practical value, to other hands, and without consideration ; and, as aforesaid, ordered his household furniture sold at public auction and otherwise, and then abandoned plaintiff and his said child and had ever since refused to provide for the support of plaintiff’ or of said child.

Plaintiff further alleges that within three months after said reconciliation, defendant renewed his former course of treatment of plaintiff in every one of the particulars herein before recited, except physical injury, that is, that be renewed his unfounded charges of plaintiffs adultery with said McDonald, who is the senior partner in said firm, with John B. Perry, who is her counsel, and with said Wood, Silverbrandt, &c., attempted again to procure said Silverbrandt. &c., shook his fist at plaintiff, and cursed and swore and ground his teeth, rising grossly obscene language, &c., conducting himself in every way as before said reconciliation, and plaintiff here pleads and repeats these allegations by reference to the eighth, ninth, tenth, eleventh and twelfth above paragraphs, as if they were at this point repeated sentence by sentence, and charged to have taken place since said reconciliation and both before and since said abandonment, except that after said reconciliation no servants or guests of the kind named, which as she is advised and believes were ground for separation have since been permitted in his house ; that their exclusion was one of the terms o.f reconciliation, and another of the terms thereof was that Minnie Rust, one of defendant’s brother’s daughters, should live with them and be a companion of the plaintiff (and not a servant), but plaintiff further alleges that defendant ‘grossly insulted his said niece, and drove her from his house, because she stood between plaintiff and defendant and kindly endeavored to persuade defendant to desist from his brutal and obscene conduct. and language toward and concerning plaintiff’, and to avoid the angry w0i'ds, excitement, violence of manner and threats of which he was guilty. Plaintiff further alleges that she is an invalid. affected by physical infirmities; that she has been, notwithstanding his course, a kind and faithful wife to the defendant, and that she is destitute of the means of support ; that since his, defendant’ s, abandonment of her, and notwithstanding his arrest therefor, and refusal to provide for her, he has repeatedly come to plaintiff’s said residence to annoy and threaten her, swearing on one such occasion even when plaintiff was not at home, that he found her closeted in a room and in the act. of adultery with some one of her alleged paramours at which time he, in fact, forced himself into her said house and went from room to room searching for her.


In consideration of the premises plaintiff’ prays that a. divorce from bed and board be decreed in her favor, between her and the defendant, Joseph “Talker, on the following grounds :

(1.) Of his cruel and inhuman conduct toward her. i J

(2.) ()f the unsafety and impropriety of her living and cohabiting with him.

(3.) Of his abandonment and refusal to provide for her and that the final decree herein award her a suitable allowance for her support and maintenance for life having reference to her right to the beneficial enjoyment of the property and business managed by said firm. and award her also the custody of said child and declare defendant liable for its support and education as one of his heirs, and that said decree contain also an injunction restraining defendant from selling, encumbered or giving away the principal or any part of his real estate and from selling, encumbering or giving away any part of the principal or income of the business and property managed by said firm as aforesaid to the prejudice _of the orders of the Court herein during the joint lives of plaintiff and defendant except by will or with the consent of the Court; that it also contain such provisions as the circumstances may require in respect to a permanent allowance for plaintiff for the support of herself and said child during her life, that is, in respect to the enforcement of the payment thereof during her life, and such other and further provisions as may be agreeable to equity, and that plaintiff may have such other and further relief in the premises, pending suit and upon final judgment, as may be just and proper, with the costs and disbursements of suit. J. B. PERRY, Plaintzl 17‘ ‘ s Attorney.

City and County of New York, ss.:

Eliza Jane Walker, plaintiff herein, being duly sworn, says, that she has heard the above supplemental complaint read, and that she knows the contents thereof, and that the same is true of her own knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters she believes it to be true.



The defendant, for answer to the complaint of the plaintiff above named, respectfully shows:

F1Trst.—That he admits the first allegation in said complaint contained.

Sec0nd.—'l‘hat he l1as no knowledge sufficient to form a belief as to the facts stated in the 2d, 3d, 4th, 5th, 6th and 7th allegations or paragraphs in said complaint contained, and therefore denies the same.

TM’/"cl. For further answer, the defendant denies each and every allegation in said complaint contained, not hereinbefore expressly admitted, controverted or denied.

F02m‘th.—-And for a further, separate and distinct defence, defendant alleges :

That in or about the month of December, 1875, for and on account of the plaintiff’s repeated acts of misconduct, drunkenness, and adultery with divers persons, and at divers times and places theretofore committed, this defendant was constrained to and did leave his then residence and the company of the plaintiff and commenced a suit for divorce,a vinculo, against the plaintiff ; that subsequently, and in or about the month of August, 1876, at the plaintiff's urgent solicitation and request, and on promises of reformation by her, this defendant was induced to and did condone all her former misconduct, on condition that she should thenceforth abandon her habits of dissipation and the company of her para

mours, and particularly the company of one Silverbrandt, with whom she had theretofore openly consorted, to the great grief, shame and open infamy of this defendant among his relatives, friends and acquaintances. That this defendant, believing said representations to be true. and that the plaintiff would faithfully keep her promises and agreement in that behalf, became reconciled to the plaintiff, and withdrew the suit aforesaid. and thereafter, at N o. 343 \Vest 15th street, re-established his household, and furnished the same at great cost and expense, and continued to live with the plaintiff, as husband and wife, down to and until on or about the month of June, 1877, wl1e.n, in consequence of the said plaintiffs renewing her acts of misconduct, drunkenness, and debauchery with said Silverbrandt and others, this defendant was again compelled, out of respect to himself, to leave the house aforesaid, and has not since cohabited with the plaintiff.

That before and ever since such condonation, and down to the month of June, 1877, this defendant had been a faithful husband to the plaintiff, and constantly treated her with conjugal kindness and respect, and that the acts of misconduct on her part were wholly without cause or provocation whatsoever.

That the acts of the plaintiff aforesaid were done and committed recklessly and wilfully, without the procurement, connivance, privity, or consent of this defendant.

Wherefore, defendant demands judgment that the complaint of the plaintiff be dismissed, with costs.

GEO. Vt’. MoADAM,
D¢gft’s Atég/.,
11 Chambers St.,
New York.

City and County _of New York, .98. :

Joseph \-Valker of said city, being duly sworn,

A says :—'That he is the defendant herein ; that he has

read the foregoing answer, and knows the contents thereof, and that the same is true, to his own knowledge, except as to the matters therein alleged to be stated on information and belief, and that as to those matters he verily believes it to be true.

JOSEPH WALKER.

Sworn to before me this 28th day of May, 1878. _t

DANIEL T. ROBERTSON, (50) -
Notary Public,
N. Y. Go.

The plaintiff, in reply to the answer of the defendant to the supplemental complaint herein, says, that she is advised by her counsel that said answer is insufficient in respect to charges of drunkenness. and licentiousness, and one to which, by the rules and practice of this honorable Court, she ought not to be compelled to give or make reply ; but replying to said answer, in so far as it is competent by implication or otherwise to answer, she denies that the defendant left his then residence in the month of December, 1875, as therein averred by him; and the terms of reconciliation in August, 1876, as therein averred by him ; and the withdrawal of the suits, as therein averred by him; and she denies each and every act of drunkenness, infidelity, or other misconduct on her part therein by him averred; and that the same, or any part thereof, prompted or_caused or constrained the defendant to abandon and repudiate her, either in December, 1875. or June, 1877.

JOHN B. PERRY.
PZfi"s Attorney.

City and County of New York, ss. .-
Eliza Jane Walker, plaintiff herein, being duly

24. sworn, says, that she has heard the above reply read, and that she knows the ‘contents thereof, and that the same is true, of her own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters she

SIR: Please take notice, that upon the annexed affidavit of the plaintiff’, copy precept to sheriff and letter to plaintiff’s attorney, and the pleadings, orders, testimony and proceedings of record herein,

I -will move this Court, at a Special Term, to beheld at the Chambers thereof in the County Court House in the City and County of New York, at 11 o‘ clock in the forenoon on the 7th day of April (_3rd Monday, 1879. or as soon thereafter as counsel may be heard, for an order that the defendant pay the sum of $4,000 (alimony). $500 (counsel fee), and $10

76 (costs). now due and unpaid on the order for temporary alimony herein. dated April 2, 1878, and the costs of this motion, reasonableness time ; that service of such order on defendant.-’s attorney herein be deemed and taken to be sufficient. and that: on default in payment within the time to be designated by such order, defendant's answer herein be struck out, and the case proceed as if no answer had been put in, and for such other and further relief as may be just.

Dated March 26th, 1879. Yours. 850., JOHN B. PERRY. 77 PZa2?n,t{fl"’s Atty/., ' 234 Broadway.

is plaintiff herein, and resides with her two children at No. 88 Charles street.

That in December, 1875, defendant began a suit for absolute divorce against deponent, in the Court of Common Pleas. and thereafter ejected her from his house, No. 45 Charles street, and that she was awarded temporary alimony by said Court.

That the above entitled action was begun in March, 1876, fora limited divorce, and that about

August, 1876, upon defendant's request that she

returned to him, a reconciliation took place, upon which they again begun living together; that he then abandoned her, and about August, 1877, refused any longer to provide for her. and that said Common Pleas suit was thereupon discontinued by order.

That this action was revived by supplemental complaint in December, 1877, and deponent was awarded temporary alimony herein by order dated April 2, 1878, 011 which there was unpaid and due on the 2d instant $4,t)()0 alimony, $5()() counsel fee. and $10 costs.

That no moneys have ever been paid on said order, but that shortly after the same was made, defendant, with intent to avoid service of process and to defeat the same, removed to Natick, Mass, where he has ever since been, and is now a resident, and where he owns a large amount of real and personal estate, and that after he abandoned deponent, and before said order, he, with intent to defeat her recovery of any alimony, conveyed all he owned in this State, to his son Josiah, to wit, the property known as “ Dr. \Valker's California Vinegar Bitters.”

Deponent says, on information and belief, that said order, dated April 2, 1878, was signed and entered, about April 23d, 1878. and served on defendant's attorney herein about Hay 10, 1878; that defendant moved to strike out from the supplemental complaint, demurred to the same, noticed several appeals and kept his time open to answer by order, so that his answer was regularly served about June 7, 1878, before he was in default under the 30 day clause in said order, and that she replied to the answer denying the charge therein stated about June 27, 1878.
82. That on or about August 3, 1878, a precept, a copy of Which is hereto annexed, was issued to the sheriff and by him returned wholly unsatisfied on or about October 4th, 1878. _

ELIZA JANE WALKER.

Sworn to before me, this 26th l_
day of March, 1879. \

F. H. JORDAN,
Notary Public,
N. Y. City and Co.

83 SUPREME COURT

OF THE STATE OF NEW YORK.

ELIZA JANE WALKER agst. JOSEPH WALKER. 84 The People of the State of New York,

To the Shem‘/7" Qf the City and County of New York:

Whereas an order was made in this action by the Supreme Court, in the First Judicial Department, bearing date April 2, 1878, requiring Joseph Walker the defendant, to pay to Eliza Jane Walker, the plaintiff, or her attorney herein, the sum of one thousand one hundred and sixty-six dollars and sixty-six cents (temporary alimony, at the rate of two hundred and ‘fifty dollars a month, from November 22, 1878, to April 2, 1878, the date of said order), together with $10 costs of- motion, within thirty days; and also requiring said defendant to pay plaintiff's attorney herein five hundred dollars counsel fee within said thirty days ; and requiring defendant also to continue to pay to plaintiff or her attorney herein, in addition to said payments. the sum of two hundred and fifty dollars (temporary alimony, from and after April 2, 1878, the date of said order) per month, on the 2d day of each and every month, from and after the month of May, 1878, until the further order of the Court ; which order was duly entered in the office of the Clerk of the City and County of New York on the 23d day of April, 1878; and which sums are wholly unpaid, and there is now actually due on said order said $1,166-115063, said $500, said $10, and $1,000, accrued since April 2, 1878, at $250 each 1nontl1, amounting in all to the sum of two thousand six hundred and seventy-six dollars and sixty-six cents.

You are therefore required to satisfy said order out of the personal property belonging to the defendant in your county. NATICK, Mass., Aug. 5, 1878. J. B. PERRY, Esq.

DEAR SIR; Yours of July 31 is before me. In answer, I can say that 1 can make an affidavit that Dr. Joseph Walker is now living here ; that he is taxed here for this year for one poll, and for between 16 and $17,000 in real and personal property, that in May last C. & J. A. Underwood brought an action against him, which is now pending in the Superior Court, and in the writ he is sued as of Natick, and he has appeared and answered; also about the same time he brought himself a petition for partition of 45 acres of land, owned by himself and J. W. Parker, as tenants in common, which petition is now pending in our Superior Court, and in that petition he designates himself of Natick, in the County of Middlesex. I am counsel against him in both cases. I don’t know of any one here who can state more. If this will be of service to you in establishing his residence here, let me know, and I will send you my affidavit, sworn to before a commissioner for New York.

Yours truly,

VV. N. MAsoN.

I can annex, if you desire it, a copy of his petition for partition and also of the Underwood writ.

Daniel T. Robertson, of said city, being duly sworn, says:

I.—That he is of counsel for the defendant.

II.--That the defendant, Joseph Walker, has been absent from the State of New York for a long time past, taking care of a son who was sick, and who lately died at Natick. in the State of Massachusetts.

III.‘—That since the service of the motion papers herein, deponent has requested Mr. Josiah Walker, another son of the defendant, to go or write to his father to come on here, and has not since received any word from either of said parties.

l\'.—That the defendant is upwards of 74 years of age, as deponent verily believes, and may be sick, or unable for other reasons to be on here, which is the reason an adjournment of this motion for one week is desired.

DAN. T. ROBERTSON.

Sworn to before me, this l
8th day of April, 1879, i
JOHN HENRY MCCARTHY,
Notary Public,
N. Y. Co.

OPINION.

Farnham 1:. Farnham, 9 How., 231, is a case in point, and should be followed by the Special Term. Besides, the case is a.n aggravated one, and falls within the spirit as well as the letter of Farnham 22. Farnham. The motion must be granted, unless the defendant pay the alimony, counsel fee, &c., within five days after the service of this order on his attorney.

G. C. B.

The motion that defendant pay the sums allowed and due under the order herein, dated April 2, 1878, or on default, that his answer be struck out, and the cause proceed as if no answer had been put in, this day coming on its order to be heard, on reading and filing notice of motion, affidavit of plaintiff, and copy precept and letter thereto annexed, and the affidavit of Daniel T. Robertson; after hearing John B. Perry. attorney for plaintiff, in favor of said motion, and Daniel T. Robertson, of counsel with defendant, in opposition, Ordered, that defendant pay plaintiff, or her attorney herein, $4.000 alimony. $500 counsel fee, and $10 costs, due and unpaid on the order for temporary alimony herein, dated April 2. 1878,
together-with ten dollars costs of this motion within‘ five days after the service of this order- on his attorney herein. or on default thereof that his answer herein be struck out, and the cause proceed as if no answer had been put in. .

Sin :-Please to take notice, that the above-named defendant, Joseph YValker, hereby appeals to the General Term of the Supreme Court, in and for the First Department, from the order entered herein, dated on the 9th day of April, 1879, wherein and whereby the answer of the defendant was stricken out, and from each and every part of said order.

Dated New York, May 7th. 1879.

GEO. W’. McADAM, Ap_pellant’s Attorney, 1] Chambers st., New York. 100 To Jinx B. PERRY, Esq., Atty. for Respect.

Upon the record herein, and the annexed affida

vits of the plaintiff, plaintiff’s attorney and Fred. 102 R. Dudley

Ordered, That the defendant, or his attorney herein, show cause at a Special Term of this Court, to be held at the Chambers thereof in the County Court House in the City

and County of New York on Tuesday, the 22nd day of April, 1879, at 120‘ clock noon, or as soon thereafter as counsel may be heard, why an order should not be made herein referring it to some suitable person as referee (_ said order to read substantially as follows)

“ To talte proof of all the material facts charged in the supplemental complaint herein, and to report the same, together with his opinion whether plaintiff is entitled to judgment of limited divorce, and if so, to ascertain and report what would be a suitable allowance to the plaintiff as permanent alimony. for her support, having regard to the circumstances of the case, and the parties respectively, and from what date the same should be allowed, and at what time or times, and in what manner the same should be paid, and whether any and what moneys heretofore allowed by the Court, and paid to the plaintiff by the defendant. if any, since the commencement of this action, ought to be deducted from the payments hereafter to be made. the said referee to have regard to the expenses of the plaintiff for counsel fees and otherwise including a subordinate counsel fee, as such, in prosecuting this action, not taxable as costs merely, and that said referee also report what security, if any, for the payment of such allowance by the said defendant upon any estate of the said defendant as otherwise would be reasonable and proper, having regard to the circumstances of the case and the parties respectively. and whether in case the said plaint-ifi survived said defendant, it or any other event may materially change the circumstances of the plaintiff and parties in interest, in respect to such security or otherwise, and that he report the facts found by him, with his opinion on the matters aforesaid, and all proofs taken before him, and any rejection by him of proofs offered, with all convenient dispatch, and that upon the coming in and filing of said report this action be brought to a further hearing thereon, and unless on such hearing the Court shall otherwise direct, it shall. as the final judgment of the Court in his behalf, he thus adjudged that the said plaintiff and defendant be separated from bed and board, provided, however, that the parties may at any time thereafter, by their joint petition, apply to this Court to have the judgment modified or discharged, and be then also further adjudged. deemed and ordered that the said Joseph \Valker, the defendant, pay to the said Eliza Jane \Valker, the plaintiff, for and as permanent alimony for her support. such sum and sums of money, and at such time and times and in such manner, as shall be specified in the report of said referee, and that he, the said Joseph \-Valker, within thirty days from the entry of that judgment, give to the said Eliza Jane \Valker such reasonable security for the payment from time to time of such allowance as shall be specified in said report, and that said referee provide in two days‘ notice in full such other and further relief in the premises as may be just.

And it is fmv fhev" 07‘(l67‘6(l, That the usual eight days’ notice of motion to the above effect be dispensed with, and that service of this order on defendant’s attorney, within less than eight days before its return. be sufficient, and that it be served forthwith.

Eliza Jane “Talker, being duly sworn, says, she is plaintiff in this action, and that no moneys whatever have been paid her under or on account of the orders for temporary alimony herein, dated respectively April 2, 1878, and April 9. 1879. That foreclosure suits have been pending for a year past in New Jersey, on real estate owned by the defendant, and which deponent. by her attorney herein, has been resisting as fraudulent ; that various suits in various States are pending, the aim of which in all instances is to divest the defendant of title to real estate owned by him; that very recently, by virtue of defendant’s conveyance of real estate in Massachusetts. where, as she is advised, her signa-. ture to the deed is unnecessary, to his son Joseph AI \-Walker, and by the latter’s will of the same to his, Joseph A.'s wife and child for life, and on their death to his, Joseph A., the testator’s heirs-at-law. and the death of said testator, the title has vested accordingly. That a few days since she was served with a notice of foreclosure, a copy of which is hereto annexed, and that the trial of the action now pending in the Superior Court, Josiah Walker against John C. Spencer, Richard H. McDonald and the defendant, Joseph Walker. is probable at an early day, having been called in its order and postponed, and that she is advised and believes the greatest dispatch in the prosecution of this action is necessary to protect her at this time.

(Signed) ELIZA JANE WALKER. Sworn before me, this 18th ( day of April, 1879. \ VV. H. MYER, (28) Notary Public, N. Y. City and Co.

IN CHANCERY OF NEW’ JERSEY.

To Joseph Walker and Eliza J ., his wife, Josiah Walker and James D. Hopkins :

By virtue of an order of the Court of Chancery of New Jersey, made on the day of the date hereof in a cause wherein Harriet A. Hill and husband are complainants, and you. the others, are defendants, you are required to appear, plead, demur or answer to the complainant’s bill, on or before the nineteenth day of May next, or the said bill will be taken as confessed against you.

The said bill is filed to foreclose a mortgage given by Joseph VValker_and Eliza J., his wife, to Harriet A. Hill, on lands in the Town of Keyport, County of Monmouth, and State of New Jersey, dated May 2 ft-h, A. D. 1877 ; and you, Joseph VVa1ker, are made defendant because you own said lands or have some interest therein, and because the bill prays that you may be decreed to pay to the complainant, Harriet A. Hill, any and all excess of her mortgage debt over a11d above the net proceeds of the sale of the mortgaged premises described in the bill of complaint; and you, Eliza J ., wife of said Joseph W'a1ker, are made defend ant because as such wife you have an inchoate right of dower in said lands ; and you Josiah \Valker are made defendant because you hold a mortgage on said lands; and you James D. Hopkins, are made defendant because you claim some lien on said lands by virtue of a certain writ of attachment issued out of the Circuit Court of the County of i\Ion Mouth, at your suit against the estate of said Joseph \Valker.


John B. Perry, being duly‘ sworn, says, he is attorney for the plaintiff herein, and that no money whatever has been paid him under or on account of the orders for temporary alimony herein ; that the order herein dated April 9, 1879, was personally served on the defendant’s attorney herein. George \V. McAdam, at his office No. 11 Chambers street, in this city. on the 12th instant: that the same directed payment of alimony, counsel fee and costs, due and unpaid to the amount of 84.520, and struck out defendant’s answer herein. unless the same was paid within five days after service of said order on said attorney, and that said five days have elapsed. That in view of contemporaneous litigation, the aim of all which is to divest defendant of his real and personal estates and which is pressed by his son Josiah, and others in his interest. and himself, it is of the utmost importance that the plaintiff be allowed to take proof and proceed herein as for want of an answer, with the greatest possible dispatch. that the very things now being resisted in other suits. were forbidden by injunction, in the original Common Pleas suit, brought by this defendant, and Wl1icl1 injunction was issued by the Chief Justice of that Court, on motion of th-is plaintiff, to wit: the transfer of the defendant’s estate to and among his children, and that in all this existing contemporaneous litigation this plaintiff has had no standing in Court in the other actions to resist these conveyances, owing to the alleged fraudulent reconciliation, and that unless she speedily obtains a final decree, it will be impossible to enforce payment of alimony for her support, by reason of these circumstances, as deponent verily believes.

(Signed) John B. PERRY.

Sworn to before me this 18th (
day of.April, 1879, t
A. '1‘. MCCLENACHAN,
Notary Public,
Co. of N. Y.

Fred. R. Dudley, being duly sworn, says, he is a law clerk and student in the office of John B. Perry, plaintiff’s attorney herein, and 19 years old; that on the 12th day of April instant, he served Geo. VV. McAdam, defendant's attorney herein, with the order dated April 9th instant, herein, directing alimony to be paid within five days thereafter,by delivering to and leaving with said McAdam, in person. at his office, N o. 11 Chambers street, in this city, a copy of said order, certified by the seal and signature of the County Clerk; and that he knows said McAdam well and personally, and knows him to be the defendant’s attorney herein.

FRED . R. DUDLEY.

Sworn to before me, this 19th day of April, 1879. _t

C. T. MCCLANAHAN,
Notary Public,
Co. of N. Y.

SIR :—The within is a copy of an order this day made by his Honor, George C. Barrett, in the within entitled action, and a copy of the affidavits on which the same was based.

124 Dated April 19, 1879. Yours, &c.

At a Special Term of the Supreme Court,

held at the Chambers thereof, in the

County Court House, in the City and

125 County of New York, on the 25th day of April, 1879.

The summons herein having been served upon the defendant; in person on the 13th day of March, 1876, and the cause afterward having been at issue upon supplemental complaint, answer and reply, and the defendant having. by an order herein, dated April 2, 1878, been required to pay the plaintiff temporary alimony for her support, at the rate of $250 a month, from and after November 22, 1877, and as follows, to wit: $1166.66, temporary alimony; $500, counsel fee; and 2310. costs, within thirty days after said order of April 2. 1878: and 8250 per month afterwards, to be paid monthly on the 2d day of May, 1878, and each and every month thereafter, until the further order of the Court; and a precept for the enforcement of said order having been issued to the Sheriff of the City and County of New York on the 3d day of August, 1878, and by him returned,


' wholly unsatisfied, on the 4th day of October, 1878;

and the defendant having, about the date or shortly after said order of April 2, 1878, put himself beyond the jurisdiction of this Court, and having thenceforward kept himself beyond its jurisdiction, and failed to comply with the terms of said order of April 2, 1878: and upon these facts being brought to the attention of the Court. the defendant having further, by a11 order herein, dated April 9, 1879, been required to pay the plaintiff the sum of $4,000, temporary alimony: $5()(). counsel fee; $10, costs of

April 2, 1878 (and S10. costs of April 9, 1879), due‘

and unpaid on said first order. within five days after the service of said second order on his attorney herein, and said second order, to wit, that of April 9, 1879, having been served on his attorney on the 12th day of April, 1879, and the defendant, though said five days elapsed, having failed to comply with the terms of said second order, in which event said second order struck out the answer of the defendant, and directed the cause to proceed as if no answer had been put in. and the. plaintiff having thereupon, by an order to show cause, dated April‘

19, 1879, moved for a reference to take proof of all the material facts charged in the supplemental complaint, including the question of permanent alimony. as for want of an answer; and said motion having this day come on in its order to be heard, now on reading and filing said order to show cause, and the affidavits of the plaintiff. plaintifi"s attorney and Fred. R. Dudley, with proof of the service of the same within less than eight days from the return day thereof as directed, in and by said order.

After hearing John B. Perry. attorney for the plaintiff, in support of said motion, and Daniel T. Robertson, f'or the defendant, in opposition.

It is 07‘de/‘ed, That it be referred to Samuel G. Courtney, a counsellor at law of the City of New York, to take proof of all the material facts charged in the supplemental complaint herein, and to report the same, together with his opinion whether plaintiff is entitled to judgment of limited divorce, and if so, to ascertain and report what would be a suitable allowance to the plaintiff as permanent alimony for her support, having regard to the circumstances of the case and the parties respectively, and from what date the same should be allowed, and at what time or times, and in what manner the same should be paid, and whether any and what, moneys heretofore allowed by the Court, and paid to the plaintiff by the defendant since the commencement of this action, if any, ought to be deducted from the payments hereafter to be made. the said referee to have regard to the expenses of the plaintiff for counsel fees and otherwise, in prosecuting this action not taxable as costs merely, and a reasonable counsel fee as such : and that said referee also report what security, if any, for the payment of such allowance by the defendant upon any estate of his, or otherwise, would be reasonable and proper, having regard to the circumstances of the case and the parties respectively, and whether in case the said plaintiff survived said defendant, it or any other event may hereafter materially change

the circumstances of the plaintiff, and defendant,

or parties in interest, in respect to such security or otherwise, and that he report the facts found by l1im, 133 with his opinion on the matters aforesaid, a11d all ~ proofs taken before him, and any rejection by him of proof opposed, with' all convenient dispatch.

And it is further ordered, that upon the coming in and filing of said report, that this action be brought to a further hearing therein.

A copy. HUBERT O. THOMPSON, Clerk. 134 NEW YORK SUPREME COURT. E1-,1zA JANE WALKER against Johnny WALKER. .__-_ -_ _.. -_._._ 135

SIR:-—You will please to take notice, that the defendant, Joseph “Talker, hereby appeals to the General Term of the Supreme Court, in and for the First Department, from the order of reference

granted in the above entitled action, and dated on the 25th day of April, 1879, and from each and every part of said order.

Dated New York, May 12th. 1879.

GEORGE W’. MCADAM. Alt’ _2/for Appellant, 136 11 Chambers street-, New York City.

This action was commenced by plaintiff against defendant, in the early part of 1876. to procure a limited divorce.

In August, 1876, the parties became reconciled, on certain terms and conditions, and in the month of August. 1877, the defendant was forced to leave and abandon his home, owing to the repetition by the plaintiff of her former offences and misconduct (see Answer).

After the last separation, leave was granted to serve a supplemental complaint, and issue was joined on answer and reply, in the month of June, 1878 (see Pleadings).

A reference having been ordered as to alimony pendente lite, the parties appeared before the . referee ; the defendant was examined on several days, and failing to appear on an adjourned day, the referee, on his default, awarded a large amount of alimony and counsel fees to the plaintiff.

The defendant, since 1869, had always resided in the City of New York, with occasional absences at Natick, Massachusetts. His son Joseph E. lived on a farm there; had been sick for a long time, attended by the defendant, and was dying. The son died about March or April, 1879.

Since the month of April, 1877, it was Well known that the defendant was in receipt of no income; that numerous judgments had been recovered against him in the County of New York; that they were unpaid, and that the defendant had no means to pay alimony or counsel fees.

The order directing the payment of alimony and counsel fees was never served on the defendant.

The issues joined by the pleadings were never settled, nor was the cause placed upon the calendar for trial, nor was any notice of trial served by either party, subsequent to joinder of the issues.

It was under these circumstances that motion was made below to strike out defendant’s answer, which was granted, (see Opirztort and Conditional Order of Apr1'l9, 1879, pp. 32, 33). The condition of the order not having been performed, on proof of default, a final order was made, directing a reference, as for Want of an answer, (see Order to Show Cause, papers anneazed, and Order of Reference. pp. 34 to 45).

From these orders, the defendant appeals to this

i Court. (See Notices of Appeal, fols. 99, 135).

POINTS.

]:‘i1'St.—The Court below had no power to strike out the verified answer of the defendant, and to award an order of reference as for want- of an answer in the cause.

(a.) 'l‘he power of the courts of this State to grant divorces for cause, subset/ent to the marriage, is derived from the statutes alone. They have no inherent powers not expressly granted by statute. (Pe-2"r_2/ v. Perry/, 2 Paige, 506; ]>’zut-is v. B2m'tis, Hop/r. C71,. 556: G2"/z_Tf/"en v. Griffen. 47 N Y., 138.)

(b.) By the Code, the only power vested in the Courts of this State to strike out an answer, is limited to actions for “discovery“ as such, and then the practice must be strictly followed (Code §808, Rice v. E/ale, 55, IV. Y., 518) ; or because the defences set up are sham or frivolous on their face. (Strong v. Sprout, IV. Y.. 497.)

Both at Common Law and under the Revised Statutes, the like powers existed to strike out the answer or defence. (Broome County Bank v. Le'w2'.s', 18 Wend., 565.) But the power was confined to the class of cas-. : named, and never extended the power of the (court to strike out the general issue, if contained in the answer. <’lI ag/land v. T3/sen, 45 N. Y., 281, 283 ; Thompson v. Erie R. R. 00., 45 N. Y., 472), and it is submitted that the reasoning upon which these cases are founded is controlling as to the case at bar. Second.--Independent of the want of power

in the Court below to make the orders appealed '

from, the statute in re “limited divorce” gave the defendant an absolute right to be heard in his defence. '

“ The defendant in any such suit may be permitted to prove in his justification the “ill-conduct of the complainant, and, on “ establishing such defence to the satisfaction “of the Court, the bill shall be dismissed.” (3 R. 8., 6th e(Z., ,$66, )2. Mt‘; Palmer v. Palmer. 29 Horn. Pr. 390,l

The word “ may,” as used in this statute, confers a privilege or right upon the defendant, and in such cases the word is to be construed as meaning “ must” or “shall.” (A(.Zr1'arzce v. Board of Super‘mfsors, 12 H0'w., Pr. 224, 231 ; Darby v. O(mcZ1't, 1 Duer, 599 _; 1]. N. Y. Leg. 0328., 154.)

If this construction be fair and proper, the code .

conflicts with the statute and the former practice '. for, if a party to a suit for separation allowed the complaint to stand as confessed against him, for want of an answer, the Court on a reference “ would “ allow the defendant to appear and cross-examine “ the witnesses produced by the complainant, and “ to produce witnesses to zli sporre the charges in

" the bill, for the mere purpose of eZz'c1't-17-hg the

“ truth to aid the .r-onscierzce of the (701/rt" (Perry v. Perry/, 2 Barb. O’h., 289). Yuder the code it would seem that this course is not now available, and without plea a party cannot be heard (Code, §500; jl[cl1';1/ring v. Bull, 16 N. Y., 309).

It was upon this ground that the referee, under the order of reference appealed from, refused to hear any evidence on the part of the defendant; so that the anomaly is presented, that while before the code the defendant in suc11 cases might have a good defence without plea, he cannot be heard at all at the present day, even with plea. Because he is unable to pay an interlocutory order awarding alimony, his answer should be stricken out (2) There is no statute that gives the Court this power, and it has been shown by Grover. J.. in Wayland '05‘. Tysen, 45 N. Y.. 281. 283. that the Courts never possessed it before the adoption of the

55 Constitution of 1816. and that the exercise of

such power is unconstitutional under the 1.st and 2d subdivisions of Art. 1 of the Constitution ; therefore the Courts never had the power to strike

~ out a verified answer amounting to a general denial.

The orders appealed from should be reversed, with costs and disbursements on this appeal to the appellant.

GEO. VV. MoA])AM,
Atty. for Appellant.
11 Chambers st.,
N. Y.

DAN’ L T. ROBERTSON,
Of’ Counsel.

(1.) The order striking out the answer was an exercise of inherent judicial power, and the power was properly exercised :

Farnham '0. Farnham, 9 How. Pr., 231.
Rice o. Ehele, N. Y., 518.
Brinkley 1). Brinkley, 57 N. Y., 41.

(2.) Defendant’s conduct was aggravated; possessed of a very large income and estate, be sued his third wife for absolute divorce on the ground of adultery; she obtaining an injunction and alimony ponder/te lite, pressed him to trial by jury, when a reconciliation took place ; upon which he gave his entire estate to his two sons by his former wives, and then abandoned he ' and her children, and refused to support them ; shortly after he began his suit, she instituted this action ; upon his abandonment of her after reconciliation, his action was discontinued and hers revived; resisting her suit to the utmost, until she was again placed on alimony percent lite, he then left the State, and after changing his domicile, put in an answer justifying his conduct. He had no right to plead her adultery or subsequent cohabitation as condonation of his cruelty, or give evidence on either question against her objection, nor was she bound to demur, or move to strike out, or compel him to plead more definitely (compare 2d paragraph of answer with 2d to 7th of complaint).

So far as proof went, it is difficult to see what. he lost by his answer being struck out ; he had made most serious charges; she had anticipated his defence, and set out in her supplemental complaint every one of his charges, many of which had been supported by his affidavit and the purported affidavits of numerous persons (fols. 29, 30, 31); in order to step to a decree she was bound to tear these charges up by the roots, as unfounded and malicious ; she assumed the risk.


(2) The answer being ont, the order to take proof was proper. JOHN B. PERRY, Attorney and of Counsel with Respondent.



More interesting newspaper clippings:

This one is about a robbery:

https://www.newspapers.com/clip/46285173/dr-joseph-walker/

Fall River Daily Evening News
Fall River, Massachusetts
24 Mar 1874, Tue  •  Page 1


Joseph Walker died 22 Nov 1881 in Natick, MA.

This clipping is about his death:

https://www.newspapers.com/clip/46285081/dr-joseph-walker/

Boston Post
Boston, Massachusetts
19 Nov 1879, Wed  •  Page 3

I also found a clipping about one of his step children dying, he had one wife that had 7 children with her first husband. I believe one of his other wives was also married before and had children from her first marriage. Talk about a diverse family.

Eliza Died on 3 JAN 1896 • Weedsport, Cayuga, New York, USA

I thought it was an interesting case, may not be a criminal one, but very interesting. I made them a tree and attached everything to it for other people who may have them as ancestors.