that he had lived in Trenton for fifteen years then last past. This was corroborated by the testimony of the father of the appellant. a clergyman of the Baptist denomination, who testified that at the time he married his son to the respondent, on the 6th of November, 1889, his son was a resident of Trenton; that he had resided in Trenton ever since, and still resided there on the day he testified, October 10, 1896. It is true that in his examination before the vice chancellor the appellant said that after his wife left him and had gone to New York and resided there in a flat he went there and lived with her for four or five months, when he again went back to Trenton. I find it difficult to perceive how this temporary residence in New York city can be held to affect his residence or domicil in Trenton in the absence of any evidence of intention on his part to abandon it. The fact that he did not intend to change his domicil is manifested by appellant's beginning his suit for divorce after he returned to Trenton, and this established his belief, not only as to his residence, but his domicil in this state. The learned vice chancellor, for the purpose of sustaining the view that the appellant had abandoned his residence in New Jersey by residing in New York city a few months, cited the case of German Sav. & L. Soc. v. Dormitzer, 192 U. S. 125, 48 L. ed. 373, 24 Sup. Ct. Rep. 221, as "directly in point." An examination of that case discloses that it is far from being in point. In the opinion in that case Mr. Justice Holmes said that it appeared from the testimony of the husband that before he made a contract for part of the land in question he had sold out his property and business in Kansas and had gone in search of what he called a new location, and that when he bought this land he desired to locate there. These facts, the court held, were sufficient for the courts of Kansas to find that he had changed his domicil.

It seems unnecessary to point out how absolutely the facts in the case under consideration are at variance with those in the case cited; the intent in that case of the husband to change his domicil being apparent from his own testimony, while here there is no evidence whatever to warrant the belief, or to enable a court to find, that the appellant intended to change his domi

cil.

To construe the temporary residence by appellant with his wife in New York to be a change of domicil seems to me unwarranted; for, as Mr. Justice Depue said in Harral v. Harral, 39 N. J. Eq. 279, 51 Am. Rep. 17, "to the factum of residence there must be added the animus manendi, and

that place is the domicil of a person in which he has voluntarily fixed his habitation, not for ... temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home." The doctrine laid down by the courts of the United States is that a domicil, having been once acquired, continues until a new one is actually acquired animo et facto. 10 Am. & Eng. Enc. Law, p. 15; Cadwalader v. Howell, 18 N. J. L. 138; Clark v. Likens, 26 N. J. L. 209.

I am unable to agree with the conclusion reached below, that, as alleged in the bill of review at the time of beginning his suit for divorce, the appellant was a resident of the state of New York, and therefore am of opinion that there was no fraud practised on the court of chancery by the appellant in swearing that he was a resident of the state of New Jersey.

The second ground upon which below was based the right of the respondent to relief is because, as stated in the opinion, after the adultery charged in the bill, and after the commencement of the husband's suit, and the service upon the wife of process, and before decree, the husband returned to the wife and cohabited with her, and led her to believe that he had abandoned the suit.

Condonation, standing alone, would not have justified the granting leave to file a bill of review; for how can that be considered new matter, which could have been produced and used by the respondent at the time when the decree was made? Every allegation relating thereto, if true, was known to the respondent during the pendency of the divorce suit, and before the entering of the decree, and if intended to be interposed as a defense should have been pleaded and proved in that suit. It is too late if it is first made known in an application for a bill of review; for, as was well said by Lord Chancellor Talbot in Taylor v. Sharp, 3 P. Wms. 371, "unless this relief were confined to such new matter, it might be made use of as a method for a vexatious person to be cppressive to the other side and for the cause never to be at rest." Now, after the lapse of four years from the entering of the final decree of divorce, and years after the taking from her of the child pursuant to the terms of said decree, she came be fore the court of chancery charging that she was deceived by her husband as to the abandonment of the suit for divorce; that during the pendency of that suit he condoned her guilt; and, further, that she never knew of the granting of the final

decree of divorce until after her time for taking an appeal had expired. No extended review of the testimony is, it seems to me, necessary in the matter of the alleged deception on the part of the appellant as to the abandonment of the divorce proceedings, for the extent to which the respondent goes in her testimony is that she supposed from appellant's conduct he had abandoned the proceedings, but there is no pretense whatever that the appellant ever told her that he had done so, and in fact she testifies distinctly that she never had any conversation with him relating to the suit for divorce pending the suit. The testimony of the appellant is that he never visited his wife during the pendency of the proceedings, and never saw her save when he visited the boy, who was then living with her. The charge that the respondent had been led to believe that the appellant had abandoned his suit for divorce is not sustained

in fact. This being so, the charge of fraud falls, and no ground can exist for the consideration of the alleged condonation, which, as before stated, could not be held to be new matter warranting the giving leave to file a bill of review, but was a personal defense of the respondent, which she could set up as a defense or waive, as she saw fit.

This brings us to the consideration of the respondent's alleged denial of knowledge of the existence of the granting of the decree of divorce until shortly before the time she filed the petition for a bill of review. An examination of her petition discloses that upon that very vital part of the respondent's case the allegation in the petition is that "your petitioner first heard positively that a divorce had been granted to her husband, Howard Watkinson, for infidelity on the part of your petitioner, through William D. Tyndall, an attorney and counselor at law of New York and New Jersey, who examined your petitioner in supplementary proceedings during the year 1901." Again the averment in her bill of review is: "And your oratrix having but recently discovered the fraud practised upon her, and having only recently learned that a decree of divorce had been granted in said cause so as aforesaid instituted by her said husband, she expressly charges said decree, so fraudulently obtained as hereinbefore mentioned, ought to be set aside," etc.

one of the masters in chancery, she was asked and replied:

Q. Did you know that he had obtained the decree of divorce at that time[summer of 1897]?

A. He said that he had.

Q. When did he say that?

A. Well, he told me that when I first saw him after he left home, November. The next time I saw him he said he had the divorce. When it was granted I don't know; he didn't say when he got it.

Now, in the testimony before the vice chancellor, in referring to the summer of 1897, she was asked and said:

Q. (By the Court). I understand you to say he came to your father's house and stayed a week the next summer (1897). He asked you when was the last time he had sexual intercourse?

A. The last time was in the summer of 1897, at home.

Mr. Tyndall: That was after the decree. The Court: After the decree, if she was willing to accept him as a concubine would

a stranger.

A. I didn't know the divorce was granted. Q. (By the Court). He never told you the divorce was granted?

A. He never told me, and I never knew it any way to be positive of it.

Mr. Backes: Did I understand the witness to say she didn't know and he never told her?

A. He never told me, no, that the divorce had been granted; nobody ever told me. It is difficult to reconcile the very material variance between the testimony of the respondent given at two different times in One thing, however, it the same cause. does demonstrate, and that is the truth of the vice chancellor's comment that the wife clearly is not to be implicitly believed.

No attempt was made to reconcile these statements of the respondent, and, in my opinion, the respondent has failed to sustain the allegation of the petition and bill that she had only learned of the granting of the divorce in the year 1900, and she has no standing to urge it as new matter, then only brought to her knowledge, to enable her to file a bill of review.

When examined in this cause de bene esse on June 30, 1902, before Samuel C. Mount,

or of condonation and fraud, we are brought to the consideration of the very serious and important question of whether her laches and delay in petitioning for the filing of a bill of review has barred her right to the relief prayed for. The record in this case

shows that the petition for leave to file a bill of review was not filed until nearly four years after the entering of the final decree in the suit for divorce, and the question to be determined is whether the laches and delay of the respondent in asserting her rights is a bar to this suit.

The rule in the English courts is that, when twenty years have elapsed from the time of pronouncing a decree which has been signed and enrolled, a bill of review cannot be brought, unless the plaintiff was under disability. Dan. Ch. Pl. & Pr. 1580;

Mitford, Ch. Pl. 105; Lytton v. Lytton, 4

Bro. Ch. 441; Deloraine v. Browne, 3 Bro.

Ch. 633.

And in the Supreme Court of the United States, in the case of Thomas v. Brockenbrough, 10 Wheat. 147, 6 L. ed. 288, Washington, J., in commenting upon the question of the limitation of the right to file a bill of review, said: "It must be admitted that bills of review are not strictly within any act of limitations prescribed by Congress, but it is unquestionable that courts of equity, acting upon the principle that laches and neglect ought to be discountenanced, and that in cases of stale demands its aid ought not to be afforded, have always interposed some limitation to suits brought in those courts." And this case explicitly declares the rule, never since departed from, in that court, as follows: "There is no statute expressly limiting bills of review, but the courts of the United States are governed in this particular by the analogous limitation of the right of appeal, and there

fore a bill of review cannot be filed after the lapse of five years from the final decree." Applying this rule to the practice in our state, after the lapse of three years leave would not be granted to file a bill

of review.

There is, however, one exception to the general rule in England as noticed by Mitford, and that is the discretionary power of the court in the case of newly discovered evidence, and this exception Judge Washington recognizes in Thomas v. Brockenbrough, 10 Wheat. 147, 6 L. ed. 288, saying: "Whether a bill of review, founded upon matter discovered since the decree is in like manner barred by the lapse of five years after such decree, is a question which need not be decided in the present case, since we are all of opinion that it is in the discretion of the court to grant leave to file a bill of review for that cause." My examination of the authorities leads me to the conclusion that the law as above laid down in the Supreme Court of the United States has been almost uniformly followed in this country.

The time of appeal having expired when this application for leave to file the bill of review was made, the petitioner was barred unless her case could be brought strictly within the exception of newly discovered evidence, or of some special equity that would give the court the discretionary power to make the order.

The question of fraud being eliminated from the case, there is left only one matter which could in legal contemplation have fact or as a ground of special equity upon been urged, either as a newly discovered which to rest an application for a bill of

review, viz., the ignorance of the petitioner of the existence of a decree of divorce until after the time for appeal had expired. But it has already been shown that this has no foundation in fact, for the petitioner in her own testimony admits and swears to her knowledge of the final decree in the divorce suit within a year after the entry of the same.

But in the court below the learned vice chancellor said that he was unable to see how any delay beyond the time limited for taking an appeal on the part of the respondent could on any known principle affect her right to a declaration by the court that the decree of divorce was invalid and void ab initio by reason of the lack of jurisdiction of the court of chancery to proceed in the cause. He then adds that where there is a lack of jurisdiction by reason of a want of residential domicil on the part of both parties, combined with extraterritorial service and the absence of any formal apthe decree was absolutely void. It was for pearance by the defendant, it followed that this reason that he held that the respondent's belief was not affected by her laches. But, as we have already shown, there was a residential domicil on the part of the appellant when he filed his bill for divorce, and, although the service on the wife of process was extraterritorial, it conformed to the law of this state, and the decree, instead of being void, was valid and binding upon the parties.

There is, however, another consideration why the laches of the respondent should not be overlooked, and that is that on the strength of the decree in the court of chancery the appellant has married again, so that other rights have now intervened, and an entirely innocent party will suffer should the decree be revoked.

I am clearly of the opinion that the earlier decision of the court of chancery that the appellant had a legal domicil and residence in this state when he filed his bill

H. S. HANCOCK

0.

WESTERN UNION TELEGRAPH COMPANY, Appt.

(........ N. C. .....)

1. The validity and interpretation of the contract, as well as the rule measuring the damages arising upon its breach and the company's liability therefor,

are to be determined by the laws of the state where a telegram is filed for transmission in case the points of inception and termination are in different states.

2. The credibility and value of the testimony of a lawyer of another state

as to what the rule upon a certain subject is in that state may be submitted to the jury. 3. The exercise by the trial court of its discretion as to the setting aside of a verdict as being contrary to the clear weight of the evidence will not ordinarily be reviewed on appeal.

4. Mere disappointment and regret are

5.

A

not included in the rule allowing damages for mental anguish upon failure of a telegraph company promptly to deliver a death

message.

Messrs. W. W. Clark and F. H. Busbee & Son, for appellant:

When the law of the place whence the message was sent, and that of the place of delivery, both refuse to recognize such damages, they cannot be recovered, although the action may have been brought in a jurisdiction which recognizes the right to recover them.

Thomas v. Western U. Teleg. Co. 25 Tex. Civ. App. 398, 61 S. W. 501.

Such damages cannot be recovered in Maryland.

Sloan v. Edwards, 61 Md. 106; United States Teleg. Co. v. Gildersleve, 29 Md. 232, 96 Anı. Dec. 519; Francis v. Western U. Teleg. Co. 58 Minn. 252, 25 L. R. A. 406, 49 Am. St. Rep. 507, 59 N. W. 1078; Connelly v. Western U. Teleg. Co. 100 Va. 52, 56 L. R. A. 663, 93 Am. St. Rep. 919, 40 S. E. 618. The law of the state in which the contract was entered into should control.

Bryan v. Western U. Teleg. Co. 133 N. C. 603, 45 S. E. 938.

Disappointment and regret are not synonymous with mental anguish.

Hunter v. Western U. Teleg. Co. 135 N.

(March 8, 1905.)

PPEAL by defendant from a judgment of the Superior Court for Craven County in favor of plaintiff in an action brought to recover damages for failure promptly to transmit and deliver a telegram. Reversed. The facts sufficiently appear in the opinion.

NOTE. AS to damages for mental anguish because of default of telegraph company, see also, in this series, Western U. Teleg. Co. v. Rogers, 13 L. R. A. 859; Wilcox v. Richmond & D. R. Co. 17 L. R. A. 804; Connell v. Western U. Teleg. Co. 20 L. R. A. 172; Western U. Teleg. Co. v. Wood, 21 L. R. A. 706; International Ocean. Teleg. Co. v. Saunders, 21 L. R. A. 810; Francis v. Western U. Teleg. Co. 25 L. R. A. 406; Mentzer v. Western U. Teleg. Co. 28 L. R. A. 72; Morton v. Western U. Teleg. Co. 32 L. R. A. 735; Peay v. Western U. Teleg.

Brown, J., delivered the opinion of the court:

We gather from the record these facts: The plaintiff and his brother resided in North Carolina, and their father, S. M. Hancock, at New Church, Virginia. The family burial ground is Goodwill cemetery, in Maryland, 8 or 10 miles from the father's home. Its nearest depot is Pocomoke City, Maryland, 42 miles away. New Church and Pocomoke City are about 11 or 12 miles distant. On Saturday, July 11, 1903, the plaintiff was at Johns Hopkins Hospital, with his brother, Thomas, and his wife.

Co. 39 L. R. A. 463; Western U. Teleg. Co. v. Robinson, 34 L. R. A. 431; Cashion v. Western U. Teleg. Co. 45 L. R. A. 160; Western U. Teleg. Co. v. Ferguson. 54 L. R. A. 846; Gray v. Western U. Teleg. Co. 56 L. R. A. 301; Connelly v. Western U. Teleg. Co. 56 L. R. A. 663; Robinson v. Western U. Teleg. Co. 57 L. R. A. 611; Western U. Teleg. Co. v. Crocker, 59 L. R. A. 398; Cowan v. Western U. Teleg. Co. 64 L. R. A. 545; Barnes v. Western U. Teleg. Co. 65 L. R. A. 666; and Green v. Western U. Teleg. Co. 67 L. R. A. 985.