(flornpU 2Iaui ^rljnnl SlibtatH Cornell University Library KF 510.B62 1864 V.2 Commentaries on the law of marriage and 3 1924 018 807 036 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018807036 COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE, SEPARATIONS WITHOUT DIVORCE, AND OF THE EVIDENCE OF MARRIAGE IN ALL ISSUES; BUBRACING ALSO PLEADING, PRACTICE, AND EVIDENCE IN DIVOKCE CAUSES, WITH FORMS. JOEL PRENTISS BISHOP, AUTHOR OF " COMIIESTARIES ON THB CRIMINAL LAW." VOL. II, VOOBTH EDITION. BOSTON: LITTLE, BROWN AND COMPANY. 1864. G.I Entered according to Act of Congress, in the year 1864, by JOEL PEENTISS BISHOP, In the Clerk's Office of the District Court of the District of Massachtisetts. University Press : Welch, Bigelow, & Co., Cambridge. CONTENTS or VOLUME 11. BOOK I. THE DEFENCES IN DIVORCE SUITS AND IN SUITS FOB DECLARING THE MARRIAGE NULL. CHAPTER I. premminart observations respecting the several defences. Sect. 1-3. CHAPTER H. ' connivance. Sect. 4-27. Sect. 4. Introduction. 5-12. The Law. 13. Distinction between the Law and the Evidence. 14-27. The Evidence. CHAPTER HI. collusion. Sect. 28-32. CHAPTER IV. condonation. Sect. 33-73. Sect. 33-35. Introduction. 36 -45. The General Doctrine of Condonation. IT CONTENTS OF VOLUME II. 46-52. Some Views attendant on the General Doctrine. 53-66. Conditional Quality of the Condoning Act. 67-69. Distinction between the Law and the Evidence. 70, 71. The Evidence. 72, 73. Statutes relating to this Subject. CHAPTER V. RECRIMINATION. SeCT. 74-102. Sect. 74-77. Introduction. 78-82. A General View of the Doctrine. 83-96. Particular Propositions. 97-100. Effect of Condonation on the Recriminatory Fact. 101. Distinction between the Law and the Evidence. 102. The Evidence. CHAPTER VL lapse of time and insincerity. Sect. 103-112. BOOK II. THE LOCALITY OB JURISDICTION WITHIN WHICH SUITS -FOK DIVORCE AND FOB NULLITY OF MABRUGE ARE TO BE PROSECUTED. CHAPTER Vn. SOME GENERAL VIEWS. SeCT. 113-115. CHAPTER Vin. preliminary inquiry concerning the law of domicile. Sect. 116-123. CONTENTS OF VOLUME n. CHAPTER IX. how fab the hule that the wife's domicile follows the hus- band's, 16 applicable nsf causes of divorce and nullity. Sect. 124-131. CHAPTER X. THE GENERAL DOCTRINE AS TO THE LOCALITY IN WHICH THE SUIT TO DISSOLVE THE MARRIAGE IS MAINTAINABLE. SeCT. 132-142. CHAPTER XI. SPECIFIC PROPOSITIONS AS TO THE LOCALITY IN WHICH DIVORCES DISSOLVING THE MARRIAGE ARE TO BE HAD. SeCT. 143-199. Sect. 143. Introduction. 144-154. No Jurisdiction irithout Domicile. 155-170. Sufficient if one of the Parties is domiciled. 171. Place of Oflfence committed immaterial. 172-179. Immaterial where domiciled \^en Offence was committed. 180-198. Immaterial where the Marriage was celebrated. 199. These Doctrines not in Conflict with United States Constitu- tion. CHAPTER XH. the divorce from bed and board and the decree for alimony. Sect. 200-207, CHAPTER Xni. the JURISDICTION UNDER PARTICULAR STATUTES. SeCT. 208-214. VI CONTENTS OF VOLUME H. BOOK III. THE GENERAL PRINCIPLES OF THE PROCEDURE, EMBRACING PLEADING, PRACTICE, AND EVIDENCE. CHAPTEK XIV. the practice op the english ecclesiastical courts. Sect. 215-223. CHAPTEE XV. A GENERAL VIEW OP THE DIVORCE SUIT. SbCT. 224-288. Sect. 224. Introduction. 225-229. The diflferent Kinds of Divorce explained. 230-251. The Rule of consulting the Public Interest. 252, 253. The Issues in the Divorce Suit. 254-261. The Course of Procedure in Outline. 262-276. The Evidence of Marriage in this Suit. 277-288. Proofs and Witnesses. CHAPTEK XVI. the suit fob nullity. Sect. 289-294. BOOK IV. THE PLEADING AND ITS ACCOMPANIMENTS. CHAPTER XVH. the parties and the bringing op the suit. Sect. 295-321. Sect. 295. Introduction. 296-301. Who may be original Parties in Divorce and Nullity Suits. CONTENTS OF VOLUME H. Vll 302-308. The Matter as respects the Incapacity of a Party. 309, 310. Intervention of third Persons as Parties. 311-815. Bringing the Party into Court by Notice. 316-321. Cross-Suits, Suits pending, and taking Advantage of Mat- ter transpired since Suit commenced. CHAPTER XVIII. THE PLEADINGS IN COURT. SeCT. 322-349. Sect. 322. Introduction. 323-325. General Views of the Libel. 326-344. What particular Allegations the Libel should contain. 345-349. The Pleadings subsequent to the Libel. BOOK V. ANCILLARY PROCEEDINGS AND DECREES ATTENDANT ON THE MAIN ISSUE. CHAPTER XIX. PRELIMINAKY INQUIRT CONCERNING ALIMONY AS AN INDEPENDENT REMEDY UNACCOMPANIED BY DIVORCE. SeCT. 350-363. CHAPTER XX. preliminary inquiry concerning the question of costs as be- tween the parties, considered in distinction prom alimony. Sect. 364-368. CHAPTER XXI. the general doctrine OF ALIMONY. Sect. 369-373. CHAPTER XXn. permanent ALIMONY. "' Sect. 374-383. VIU CONTENTS OF VOLUME H. CHAPTER XXm. ALIMONY PENDING THE SUIT, AKD MONEY PAID THE WIFE BY ORDER OF THE COURT TO PROSECUTE OR DEFEND. SeCT. 384-426 CHAPTER XXIV. EXPOSITIONS CONCERNING BOTH KINDS OF ALIMONY. SeCT. 427-444. CHAPTER XXV. THE husband's FACULTIES WHENCE THE ALIMONY PROCEEDS. SeCT. 445-453. CHAPTER XXVI. THE AMOUNT TO BE DECREED AS ALIMONY. SeCT. 454-470. Sect. 454. Introduction. 455-458. Considerations which blend with the Faculties. 459-461. The Amount in Temporary Alimony. 462-467. ^he Amount in Permanent Alimony. 468-470. Views applicable to both Kinds of Alimony. CHAPTER XXVII. STATUTORY ALIMONY AND ALIMONY AWARDED ON THE DISSOLUTION OF THE MARRIAGE. SeCT. 471 -484. CHAPTER XXVm. THE PROCEDURE WHEREBY THE DECREE FOR ALIMONY IS OBTAINED AND ITS PAYMENT IS ENFORCED. SeCT. 485-508. Sect. 485. Introduction. 486-493. Pleadings in respect to Alimony.. 494-496. Evidence in respect to Alimony. 497-500. How Decree for Alimony is made and enforced. 501-508. Obtaining Security, and the like, for its Payment. CHAPTER XXIX. DIVISION OF THE PROPERTY BETWEEN THE PARTIES ON A DIVORCE FROM THE BOND OF MATRIMONY. SeOT. 509-519, CONTENTS OF VOLUME II. IX CHAPTER XXX. THE RESTORATION TO THE WIFE OF HER PROPERTY. SeCT. 520-524. CHAPTER XXXI. THE CUSTODY AND SUPPORT OP CHILDREN.. SeOT. 525-559. Sect. 525. Introduction. 526-544. The Custody as connected with the Divorce Suit. 645-651. The Custody where there is no Divorce. 552-559. Support of the Children under Decree of Court BOOK VI. THE PROCEDUKE IN SPECIFIC CAUSES OF DIVORCE AND NULLITY ; EMBRACING PLEADING, PRACTICE, AND EVIDENCE, CHAPTER XXXn. GBNERAX VIEWS. SeCT. 560, 561. CHAPTER XXXIII. WANT OP MENTAL CAPACITY. SeCT. 562-569. CHAPTER XXXIV. FRAUD. Sect. 570-573. CHAPTER XXXV. IMPOTENCE. Sect. 574-600. X CONTENTS OF VOLUME n. CHAPTER XXXVI. ADULTERY. SkCT. 601-647. Sect. 601. Introduction. 602-611. The Allegation of Adultery in the Libel. 612-647. The Evidence. CHAPTER XXXVII. CRUELTY. Sect. 648-664. Sect. 648. Introduction. 649-655. The Pleading. 656-664. The Evidence. CHAPTER XXXVni. desertion. Sect. 665-683. Sect. 665. Introduction. 666-669. The Plaintiff's Allegation. 670-681. The Evidence. 682, 683. Locality in which the Suit is to be maintained. CHAPTER XXXIX. other causes op divorce. Sect. 684, 685. CHAPTER XL. divorce in the judge's discretion. Sect. 686, 687. CONTENTS OF VOLUME n. XI BOOK VII. THE CONSEQUENCES OP THE DIVORCE. CHAPTER XLI. consequences flowing by law from the valid sentence. Sect. 688-741. Sect. 688, 689. Introduction. 690-696. The Sentence of Nullity. 697-725. The Divorce from the Bond of Matrimony ; as to — 697. Introduction. 698- 704. The Status of the Parties. 705-725. Property Rights of the Parties and third Persons. 726 - 741. The Divorce from Bed and Board. CHAPTER XLH. THE SENTENCE AND ITS EEFECT AND STABILITY. SeCT. 742-767. Sect. 742. Introduction. 743-747. The Rendition of the Sentence. 748-753. Its Stability and Effect as between the Parties. 754-767. The Same as respects third Persons. FORMS. SEcy. 768-789. Index to Cases cited, page 619. Analytical Index, " 681. Alphabetical Index, " 701. BOOK I. THE DEFENCES IN DIVORCE SUITS AND IN SUITS FOR DECLARING THE MARRIAGE NULL. CHAPTER I. PRELIMINABY OBSERVATIONS RESPECTING THE SEVERAL DEFENCES. § 1. The defences to be considered in the present subdi- vision of our subject are those only which are of a general character. Such defences as pertain merely to particular causes' of divorce or of nullity are brought under examina- tion in other connections. If the defence, of the latter class, is one relating to the law in distinction from the procedure, it will be found in our discussion of the particular cause, embraced in the first volume. If it relates to the procedure, it will be found in its corresponding place in the present volume. § 2. The defences to be brought under review in the pres- ent series of chapters pertain, for the most part, to the divorce suit, not to the suit for nullity. Yet the defence of Lapse of Time and of Insincerity attaches itself as well to the latter class of suits as to the former. In divorce suits, moreover, the question whether there was a marriage valid in law or not, is, as we shall more particularly see in another place, al- ways one of the issues presented by the plaintiff, to be con- VOL. II. 1 [ 1 J § 3 THE DEFENCES. [BOOK I. tested by the defendant if he likes ; and, in such contestation, the same matter may be tried as when a suit is brought directly for nullity. This defensive matter, however, is not for consideration in the present connection. Involving the same questions which are discussed under the several titles embraced in our third book of the first volume, it will be found sufficiently stated there, as to the law ; while, as to the procedure, it will be elucidated in its more appropriate places in the present volume. § 3. There are likewise various questions relating to the method of presenting the defences discussed in the present series of chapters, not to be entered upon here. Yet we shall in these chapters consider as well the evidence which estab- lishes the defences, as the law. This mingling of law and evidence in the same chapter does not accord with the method pursued in other parts of these volumes, but it is convenient as applied in this particular instance. It would be satisfac- tory could we always so order the course of discussion upon legal subjects as to fail in no instance to cause the theoret- ical and practical, the inner beauty and the outward reality, to blend. But until those higher harmonies which poets dream of shall pervade each thing of use in this lower world of ours, men must be content to adapt themselves somewhat to circumstances ; and even, if they are lawyers, to read, though they might be unwilling to write, law books wherein the practical unfoldings of doctrine shall not quite chime with the upper bells which summon archangels to their feasts of beauty. Happy would the writer be, if, in one legal treatise, he could present perfect beauty and perfect truth together, robed in the garments which celestials wear, just fitted to meet the peltings of our earthly hail and snow, and bearing the exact likeness to a judge on the bench, and a foreman of a jury rendering a verdict ! [2] CHAPTEE II. CONNIVANCE, Sect. 4. Introduction. 5-12. The Law. 13. Distinction between the Law and the Evidence. 14 - 27. The Evidence. § 4. We shall in the present chapter consider, in respect to this matter of connivance, I. The Law ; II. The Distinc- tion between tlie Law and the Evidence ; III. The Evidence. The pleading and practice will come up for discussion in other parts of this volume. I. The Law. • § 5 [332]. Connivance is the corrupt consent of a party to the conduct in the other party whereof he afterward com- plains. It bars th^ right of divorce, because no injury was received ; for what a man has consented to, he cannot say was an injury. " In that case," observes Lord Stowell, " the general rule of law comes in, that volenti non Jit injuria, no injury has been done, and therefore there is nothing to re- dress." ^ While this defence is available in all divorce causes. 1 Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ee. 358, 360 ; Eogers v. Rogers, 3 Hag. Be. 57,5 Eng. Ec. 13, 14 ; Anichini v. Anichini, 2 Curt. Ec. 210, 7 Eng. Be. 85, 86 ; Pierce v. Pierce, 3 Pick. 299 ; Reeves v. Reeves, 2 Phillim. 125, 1 Eng. Ec. 208 ; Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng, Ec, 28 ; Harris v. Harris, 2 Hag. Ec. 376, 414, 2 Eng. Ec. 160, 178; Clowes v. Clowes, 9 Jur. 356; Barker V. Barker, 2 Add. Ee. 285, 2 Eng. Ec. 307 ; Phillips v. Phillips, 1 Robertson, 144. [3] § 7 THE DEFENCES. [BOOK I. those in which it has most frequently arisen are suits for adultery. § 6 [333]. Evidently connivance is a thing of the intent, resting in the mind. It is a corrupt consenting. Errors or imprudences coming short of this, howeter fatal in their con- sequences, are not connivance. " Different men have different degrees of judgment, and judge differently ; nor are we to judge by the event. A court of justice must look quo animo the step is taken." ^ But the connivance may be a passive permitting of the adultery or other misconduct, as well as an active procuring of its commission. If the mind consents, that is connivance.^ § 7 [334] . A query was indeed suggested by Dr. Lushing- ton, in 1829, whether, in a suit for divorce on the ground of adultery, something short of this concurrence of the will may not bar the plaintiff's remedy. His words were : " What degree of neglect, however culpable, short of an actual and voluntary exposure of the wife to the seduction of the adul- terer, would be sufficient, in order to bar a suit for divorce by reason of adultery, is nowhere laid down, at least with that distinctness and precision which would furnish a safe guide for the court ta act upon. The court certainly does not recollect any case of the kind ; but it can conceive, that a case might arise of such wilful neglect, or rather' exposure, as might, without proving actual connivance, possibly bar 1 Hoar V. Hoar, 3 Hag. Ec. 137, 5 Eng. Ec. 51, 53, by Lord Stowell ; Moorsom V. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28 ; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130, 136. 2 Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28 ; Rogers v. Rogers, 3 Hag. Bo. 57, 59, 5 Eng. Ec. 13, 15 ; Walker v. Walker, cited 3 Hag. Ec. 59, 5 Eng. Ec. 15 ; Rix v. Rix, 3 Hag. Ec. 74, 5 Eng. Ec. 21 ; 2 Greenl. Ev. ^ 51. And see the luminous judgment of Sir Herbert Jenner Fust, in Phillips v. Phillips, 10 Jur. 829, where this whole subject of connivance is discussed, and th» authorities are cited and reviewed. The principle deduced by the court, as applicable to the case then under consideration, is, " that, where there is no corrupt intention proved on the part of the husband, he Is not debarred from the remedy." See also s. c. decided in the court below, by Dr. Lushington, 1 Robertson, 144. [4J CHAP. II.] CONNIVANCE. § 8 the husband of all remedy by a divorce. A husband might introduce his wife to society so abandoned, and expose her to risks so great, as to render a deviation from the paths of chastity the most probable, if not the necessary, consequence. Under such circumstances perhaps, the court would not wait for proof of actual connivance on the part of the husband, but would hold him to the consequences of his own conduct, where the adulterous connection arose from the society and temptations to which he had introduced his wife." ^ Yet the principle on which such a husband would be deemed respon- sible, if at all, in the case suggested, is doubtless that he must be presumed to have intended the natural consequences of his own conduct.^ If one should ignorantly place his wife in circumstances of temptation, it would be contrary to the spirit of the authorities, contrary to justice also, to hold, that the mistake bars him of his remedy, on her voluntarily yield- ing to the temptation.^ This evidently is likewise the later opinion of this learned judge himself, as to what the law is, perhaps not as to what it should be.* § 8 [335]. The same learned judge, thirteen years after deciding the case from which the foregoing extract has been niade, said : " If adultery is charged against a wife, if counter- adultery cannot be proved, nothing can bar a sentence for 1 Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec. 160, 178. And see Barber v. Barber, 14 Law Reporter, 375, a Connecticut case, in which similar language is employed by Church, C. J. In actions for criminal conversation, the doctrine of the common law is, that, if the husband consents to his wife's adultery, the consent bars his action ; if he is only negligent, this goes merely in reduction of damages. Duberley v. Gunning, 4 T. E. 651, 657. See Reeve Dom. Rel. 64. ^ " In all this I do not say, that the husband intended the ruin of his wife, and was looking for a divorce as the consequence ; but, if the legal presumption be applied that every man is presumed to intend the legitimate consequence of his deliberate acts, such a, conjecture is not unreasonable." In this case the plaintiff was held to be barred of his remedy. Barber v. Barber, supra. And see post, § 21 ; 1 Bishop Grim. Law, § 248, 513, 514. ' See Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28 ; Hoar v. Hoar, 3 Hag. Ec. 137, 5 Eng. Ec. 51 ; Burgess «. Burgess, 2 Hag. Con. 223, 4 Eng. Ec. 527. * Post, § 8; Phillips v. Phillips, 1 Robertson, 144. [5] § 9 THE DEFENCES. [BOOK I. separation but connivance on the part of the husband ; cruelty ■will not be a bar, neither will malicious desertion : although such conduct will have a tendency to cause the wife to com- mit adultery, it is clearly established that it is no defence to the husband's suit. Although I have some doubt as to the propriety of the doctrine on this point, I have felt myself com- pelled to act on it ; indeed I did act on it in a recent case of Morgan v. Morgan." ^ And he therefore held, iu a husband's suit for adultery, that a defensive charge of cruelty, not admissible in England on general principles,^ was not ren- dered so by the averment of the cruelty having been inflicted to get rid of the wife^ by driving her to the commission of adultery. But he added : " There may by possibility be cases where cruelty on the part of the husband may directly lead up to the wife's adultery; I say nothing upon such a case » 3 § 9 [336]. When a husband suspects his wife of infidelity to his bed, he may watch her, and even leave opportunities open for her, in order to obtain proof of her guilt ; but, for this purpose, he must neither lay temptations in her way, nor provide the opportunities. " It is true," remarks Lord Stowell, " a husband is not barred by a mere permission of opportunity for adultery ; nor is it every degree of inatten- tion on his pai't which will deprive him of relief; but it is one thing to permit, and another to invite ; he is perfectly at liberty to let the licentiousness of the wife take its full scope ; but that he is to contrive the meeting, that he is to invite the adulterer, then to decamp and give him the opportunity, I do think amounts to legal prostitution." * If therefore a man 1 Morgan u. Morgan, 2 Curt. Ec. 679, 686, 7 Eng. Ec. 258. And see post, § 19,20. / 2 Post, § 80. 8 Dillon V. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 381. And see the opinion of the same judge in Phillips v. Phillips, 1 Robertson, 144; s. c. in the Arches Court, 10 Jur. 829. * Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22, 25 ; Pierce v. Pierce, 3 Pick. 299 ; Reeves v. Reeves, 2 Phillim. 125, 1 Eng. Ec. 208; Clowes v. Clowes, [6] CHAP. II.] CONNIVANCE. § 11 thus leads his wife into adultery, he cannot have a divorce from her because of her having followed. § 10 [337]. There is a doctrine going still further; name- ly, that, if a man connives at one act of adultery committed by his wife, he cannot have a divorce from her though after- ward she commits other acts of adultery with the same or another particeps criminis. This doctrine, as a general one, is very just ; still, in reason, it should not be carried to all lengths, because thus a man would be forever barred of all hope, though he should repent of his wrong, and strive to win his wife to repentance also. Where the woman under- takes to defend herself against her husband's suit for divorce, grounded on such her subsequent adultery, by relying on his connivance in a former instance, with a different person, she must prove the former adultery ; since connivance in law attaches not on the one side, unless the legal guilt of adul- tery is incurred on the other, though in foro conscientice it may be otherwise.^ § 11 [338]. In an English case, decided by Sir William Wynne in 1795, it was held, that the husband, proceeding against his wife for gross adultery commited five years after the parties had separated, resulting in the birth of children baptized in the husband's name, was not barred, though, be- fore the separation, he had connived at adultery by her with persons other than the one with whom her later adultery was committed.^ But when this husband brought his suit in the 9 Jar. 356 ; Bray v. Bray, 2 Halst. Ch. 628. Dr. Lushington says, that the ex- pression of Lord Stowell, in the text, must be understood to mean no more than that a husband, suspecting his wife of adultery, is at liberty to remain quiet, and to watch her, for the purpose of detecting her adultery ; but, if he is once in possession of a fact of adultery, and still continues his cohabitation, it proves, as Lord Stowell had also observed, connivance, coUnsion, and facility. Phillips v. Phillips, 1 Rob- ertson, 144, 158. , 1 Stone V. Stone, 3 Notes Cas. 278, 306, 307, 1 Kobertson, 99. There must be consent with knowledge of the adultery. PhilUps v. Phillips, 1 Kobertson, 144. And post, §11. 2 Hodges V. Hodges, 3 Hag. Ec. 118, 5 Eng. Ec. 42. [7] § 11 THE DEFENCES. [BOOK I. common law court against the adulterer for the criminal con- versation, Lord Kenyon ruled, that " his having suffered such connections with other men was equally a bar to the action as if he had permitted the present defendant to be connected with her." ^ And Dr. Lushington, in a subsequent divorce case, permitted the wife to plead connivance, under similar circumstances, observing of the before-mentioned suit for divorce : " It is, to the best of my knowledge and belief, the only case which upholds that doctrine ; and although the case has been cited by judges for other purposes, it has never been relied upon for the main question, namely, that the husband may connive at the adultery of his wife with one man, and at a subsequent period obtain a divorce in these courts for her adultery with another. Such a doctrine, resting upon a single case, however high the authority, most unquestionably I will not follow. I have had occasion to make the observation before, that I never can think that a man who had been so forgetful of his own duties, moral and religious, toward his wife, and of all feelings of honor as a gentleman, as to connive at his own disgrace, by being a party to her adultery with one man, can come to a court of justice with clean hands, and seek a separation for the subse- quent conduct of his wife, to whose guilt he had been, as it were, foster-father. So far as this principle is concerned, I have no hesitation, therefore, in saying, that I will not be de- terred by the decision of Hodges v. Hodges, from allowing the wife in this case to plead facts sufficient in law to prove, if she can, that Mr. Stone did connive with Mr. H. during the cohabitation."^ So, in a much earlier case, where the wife made no defence to the suit. Lord Stowell dismissed it, on the ground, that, though the adultery alleged was clearly proved, yet the husband was shown also to have connived at another adulterous act, nearly contemporaneously committed, with another person. " The Ecclesiastical Court," he said, 1 Hodges V. 'Windham, Peake, 39. 2 Stone V. Stone, 3 Notes Cas. 278, 282, 1 Eobertson, 99. See remark of Sir John Nicholl, in Rogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 13, 20. [8] CHAP, n.] CONNIVANCE. § 13 " requires two things, — tliat a man shall come with pure hands himself, and shall have exacted a due purity on the part of his wifQ ; and, if he has relaxed with one man, he has no right to complain of another." ^ § 12 [338 a]. Plainly the views of Dr. Lushington and of Lord Stowell, as expressed in the extracts given in the last section, are correct in morals and in law, as general propo- sitions, and as applied to the cases then before them. Yet few general propositions are found to be so exact, and at the same time so broad, as to meet even the legal justice, more especially therefore the moral and social justice, of every case possible to arise in the future. II. The Distinction between the Law and the Evidence. § 13. We have no decisions laying down the rule where- by the law and the evidence are to be separated from one another in these cases, when the issue is tried before a jury, and the judge passes upon the law, and the jury upon the evidence. But it is plain, that, as matter of legal principle, the judge is to instruct the jury to consider whether, in real truth, provided the pleadings are so drawn as fully to meet the case, the party accused of connivance desired the offence should be committed, either the particular offence or the cor- responding offence with a person other than the present par- ticeps criminis ; and whether, so desiring, he did any act or spake any word to promote its commission, or, in short, in any way by will or conduct contributed to the result. Such general principles of law might also be presented to the attention of the jury, if the facts required, as that a party shall be presumed, in the absence of controlling proof, to in- tend any result which his own conduct is calculated to pro- duce ; and the like. What further, therefore, is to be said in this chapter will find place under the general sub-title of — 1 Lovering v. Lovering, 3 Hag. Ec. 85, 5 Eng. Ec. 27, 28. [9] § 15 THE DEFENCES. [BOOK I. III. The Evidence. § 14 [339]. Recollecting that connivance is in essence the corrupt intent of the mind, without which intent it cannot exist,^ let us first notice a distinction between connivance and condonation, which latter leads to the same legal con- sequence. There may be condonation without blame, while connivance necessarily implies guilt ; therefore, to establish connivance, it requires evidence more grave and conclusive than to establish condonation.^ The burden of proof is, of course, on the party setting up the connivance ; and the testimony must be strongly inculpatory,^ admitting of no dispute.* In the language of Sir John Nicholl, " It cannot readily be presumed that any husband would act so contrary to the general feelings of mankind, as to be a consentient party to his own dishonor." ^ Yet a rule of evidence, similar to the familiar one that it is not necessary to prove adultery in time and place,^ applies here ; namely, that a specific act of conniving at a specific act of adultery need not be shown, but general connivance is sufiicient.^ Indeed this last propo- sition flows necessarily from the doctrine before discussed,^ tliat connivance at one act and with one man is legally equiv- alent to connivance at every subsequent act with all men. § 15 [340]. The proof of connivance, when especially of 1 Ante, § 6. 2 Turton v. Turton, 3 Hag. Ec. 338, 350, 5 Eng. Ec. 130, 136. 3 Croft V. Croft, 3 Hag. Ec. 310, 5 Eng. Ec. 120, 121 ; Phillips v. Phillips, 1 Robertson, 144. * Turton v. Turton, supra ; Eix ». Rix, 3 Hag. Ec. 74, 5 Eng. Ec. 21 ; Phillips u. Phillips, 1 Robertson, 144, 156. 5 Rogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 13, 16. ^ Caton V. Caton, 13 Jur. 431, 432. ' Moorsoni v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28. But see Phillips v. Phillips, 1 Robertson, 144, 162. 8 Ante, § 10-12. [10] CHAP. II.J CONNIVANCE. § 16 the merely consenting kind,^ is seldom direct ; but the facts, like others resting on circumstantial evidence, are established by a variety of attendant facts, often trifling in themselves, yet convincing in combination.^ If the combined attendant facts are equivocal, not necessarily showing a guilty intent to connive, whatever other error or weakness they indicate, they are insufficient; for such intent must be pi'oved, not left to conjecture.^ In the language of Sir Herbert Jenner Fust, also, " What amounts to proof of actual knowledge and con- currence is a question which depends upon the circumstances of each case ; but, without intentional concurrence or corrupt connivance, there is no bar." * So, in examining the authori- ties, the words of the courts should be considered as used in respect to the particular cases under discussion, else misap- prehension will arise.^ § 16 [341]. In deciding, in one case, whether a husband had connived at his wife's adultery, as alleged by her in an- swer to his prayer for divorce, Dr. Lushiugton pursued the following order : 1st, What acts were done by the wife. 2d, What came to the knowledge .of the husband. 3d, What might reasonably have come to his knowledge ; or, in other words, supposing reason for inquiry existed, what might with ease have been discovered. 4th, What the husband did do, and what he did not do.® This method was a good one in the particular case, and undoubtedly it will hereafter be found adapted to other cases. But no worn road of travel is laid through all the field of the future, to be pursued uniformly to- the disregard of ways discernible in the particular in- stances. 1 Ante, § 6. 2 Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28 ; Rogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 13. 15. ■* Phillips V. Phillips, 1 Eobertson, 144, 157, 158. But see ante, § 7 and note. ' Phillips V. Phillips, 10 Jar. 829, 832. s Phillips v. Phillips, 1 Robertson, 144, 156; Vol. I, § 63. " Phillips V. Phillips, 1 Robertson, 144; s. c. in Arches Court, 10 Jur. 829, 4 Notes Cas. 523; affirmed by Jud. Com. of Privy Council, June 29, 1847. [IIJ § 18 THE DEFENCES. [BOOK I. § 17 [342]. To estimate properly the evidence tending to establish connivance, we must sometimes consider the rela- tive situation and duties of husbaud and wife. The law im- poses on the' husband the obligation to watch over the morals of his wife ; and protect her against associations which might expose to hazard her purity, or, by lowering her standard of virtue, prepare the way for the approaches of the seducer.^ While, therefore, his want of attention to her selection of associates, to her morals, and her conduct in other respects, or even his introducing the paramour to her, is not of itself connivance, it may be strong, sometimes satisfactory, evi- dence of it.2 § 18 [342]. But the wife is said not to be the guardian, to the same extent, of her husband ; and, though connivance may be established against her, by circumstantial as well as by direct proof, yet it is not always inferred from facts which would be ample were the parties reversed.^ Therefore where the husband had committed adultery with his wife's sister. 1 Harris v. Harris, 2 Hag. Eo. 376, 4 Eng. Ec. 160, 177 ; Hamerton v. Haraer- ton, 2 Hag. Ec. 8, 4 Eng. Be. 13, 15. In Crewe v. Crewe, 3 Hag. Ec. 123, 137, 5 Eng. Ec. 45, 50, Lord Stowell said : " The general mode in which these parties lived together is extraordinary, and pot unimportant. There was no formal separation, yet as much estrangement as can well consist with the marriage state. She is allowed to go to Bath, to Brighton, and to other public places, without the husband being there for more than a, night or two ; the court cannot compel the husband, even if he has no office nor profession that prevents him, to be constantly with his wife ; but every man mast observe, that this husband did not give his wife the benefit of his care. I do not say that the husband is to dog his wife at every step with sullen and gloomy suspicion ; but the protection and comfort of his society are to be afforded to a person so closely connected with him, and in whose conduct his happiness, as well as her own, is involved. " And see Poynter Mar. & Div. 228, 229. '^ Kix V. Eix, 3 Hag. Be. 74, 5 Bng. Be. 21 ; Gilpin v. Gilpin, 3 Hag. Ec. 150, 5 Eng. Be. 58 ; Moorsom v, Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28 ; Stone c Stone, 3 Notes Cas. 278, 308, 309, 1 Eobertson, 99, 101 ; Michelson v. Michelson, 3 Hag. Ec. 147, 5 Eng. Ec. 56 ; Crewe v. Crewe, 3 Hag. Ec. 123, 5 Bng. Be. 45 ; Dillon V. Dillon, 3 Curt. Ec. 86, 7 Eng. Be. 377 ; Graves v. Graves, 3 Curt. Ec. '235, 7 Eng. Ec. 425 ; and Hoar v. Hoar, 3 Hag. Ec. 137, 5 Bng. Bel 51. ' Poynter Mar. & Div. 231, and Ruding v. Ending, lb. note ; Angle v. Angle, 12 Jar. 525. [12] CHAP. II.J CONNIVANCE. § 19 and it had come to the knowledge of the wife ; who, after- ward, for particular reasons, permitted this sister to accom- pany her and her husband to India, and to live in the same house with them ; she was held, under the peculiar circum- stances of the case, not barred of her remedy for his subse- quent adultery with this sister. Though her conduct was deemed imprudent, it was thought not necessarily to proceed from an evil intent.^ And Dr. Lushington once refused to infer connivance against the wife ; though, for the purposes of the decision, he assumed that she had voluntarily cohabited with her husband in harmony a year, and afterward had for- borne to bring her suit for eight years, during all which time she had knowledge of the adultery,^ — conduct abundantly sufficient to bar the husband, were the parties reversed.^ § 19 [343]. Mere coolness by the husband, and his inat- tention to the comforts of the wife, seem not to be even ad- missible in evidence, as sustaining the charge against him of having connived at her adultery.* And, observes Dr. Lush- ington : " I know of no authority for saying, that coarse and even brutal behavior, obscene and disgusting language, entire disregard of decorum, will alone constitute connivance. Such conduct is indeed most degrading to a gentleman, and offen- sive to all good feeling ; but it does not necessarily, either de facto, or by intendment of law, prove that the husband ac- quiesced in his wife's adultery. Even cruelty and desertion, though tending to induce the wife to disregard her own duties, are not connivance. Facts, to constitute connivance, must have a direct and necessary tendency to cause adultery to be committed or continued." ^ Thus, where, in Connecti- cut, a husband instituted his suit for divorce by reason of his wife's adultery, to which suit she set up in defence that the 1 Tarton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130. The court in this case intimated, that, even if conniyance had been proved, the wife might not be barred thereby, because the adultery was incestuous. ^ Angle V. Angle, supra. ^ See post, ^ 22. * Moorsom v. Moorsom, 3 Hag Ec. 87, 5 Eng. Ec. 28. 5 Stone V. Stone, 1 Robertson, 99, 101, 3 Notes Cas. 278 308, 309. [13] § 21 THE DEFENCES. [BOOK I. adultery was committed, if at all, through an understanding between him and the particeps criminis, for the purpose of laying a foundation for the divorce ; she was not permitted, in support of this allegation, to introduce testimony of his having for a considerable time treated her unkindly, and in- flicted acts of cruelty ; either, first, as proving the conniv- ance ; or, secondly, as repelling the presumption against it which arises from the marriage relation.^ § 20 [343]. Yet it is difficult to resist the conviction, that facts like the foregoing may, in a proper case, be admitted, when offered in connection with other facts ; though, standing alone, they are so clearly insufiicient as perhaps to be irrele- vant. For example, while a husband may beat and abuse his wife, and not connive at her adultery ; yet, if there are in- dependent circumstances directly pointing to the connivance charged, the conclusion may be more ea§y if it is further shown, that he has lost his affection for her, and so is proba- bly desirous of getting rid of her. Thus we shall see, in a subsequent chapter, that evidence of cruelty is admissible in proof of adultery ; because a husband, whose love for his wife has departed, is likely to seek unlawful pleasures. What effect cruelty may have as a recriminatory plea will be con- sidered in its proper place. § 21 [344]. Obviously there can be no connivance at any act without some knowledge of its existence, or at least its proximate causes ; unless indeed the case be one in which the party accused of the connivance has laid the train leading to the result, and. is yet in. ignorance whether the sought-for end has been reached. Therefore in examining the conduct of a husband on the question of his alleged con- nivance at his wife's adultery, we should in most cases con- sider, what notice of it he had, or what suspicion of behavior in her tending to it.^ And Dr. Lushington went in one case 1 Austin V. Austin, 10 Conn. 221. 2 Hoar V. Hoar, 3 Hag. Ec 137, 140, 5 Eng. Ec. 51, 53; Rogers v. Rogers, 3 [14] CHAP, n.] CONNIVANCE. § 22 SO far as, after a review of the autliorities, to say : " There must be knowledge, or presumed knowledge, of the adultery, or improper familiarities leading thereto ; not finding any evidence of this description, I pronounce for the separation." ^ Thence it follows, that, if the parties were living separate at the time of the adultery committed, and ho improper famili- arities are shown to have taken place during their cohabita- tion, connivance will not be presumed, without the clearest possible evidence of intention and consent.^ On the other hand, while the cohabitation continuesj if the husband re- ceives a caution concerning the conduct of his wife,^ or if he sees what a reasonable man could not see without alarm,* or if he knows she has been guilty of antenuptial incontinence,^ or if he has himself seduced her before marriage,^ whereby he is put upon his guard respecting her weakness, — he is called upon to exercise a peculiar vigilance and care over her ; and, if he sees what a reasonable man could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the consequences. Yet this rule should be applied with due allowance for defective perception, dullness of capacity, overweening confidence, and the like.'' § 22 [345]. So, while a man may forgive the adultery of his wife already committed,^ without thereby licensing her to commit future adulteries, yet too great a facility of condona- tion amounts to a general license, and to sufficient proof of Hag. Ec. 57, 5 Eng. Ec. 13, 18, 19, 20 ; Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22 ; Levering v. Levering, 3 Hag. Ec. 85, 5 Eng. Ec. 27 ; Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ec. 45 ; ante, § 16. 1 Phillips V. Phillips, 1 Robertson, 144, 164. 2 Rogers v. Rogers, 3 Hag. Ec. 57, 72, 5 Eng. Ec. 13, 20. 8 Dillon V. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377. * Moorsom v. Moorsom, 3 Hag. Ec. 87, 106, 5 Eng. Ec. 28, 37. ^ Best V. Best, 1 Add. Ec. 411 ; s. c. in Arches Court, cited Poynter Mar. & Div. 230, note ^ Graves v. Graves, 3 Curt. Ec. 235, 7 Eng. Ec. 425. " Dillon V. Dillon, supra. ' Moorsom v. Moorsom, supra. ^ Levering v. Levering, 3 Hag. Ec. 85, 5 Eng. Ec. 27 ; Auiohini v. Anichini, 2 Curt. Ec. 210, 7 Eng. Be. 85, 86. [15] § 23 THE DEFENCES. [BOOK I. his connivance at her subsequent misconduct.^ In one case Lord Stowell held, under the circumstances of the case, that, where the wife had committed adultery on the first of three successive nights ; and the husband, knowing and having full proof of this, slept with her on the second, without any rea- son to believe she had repented of the offence ; he not only condoned thereby the previous adultery, but he could not take advantage of her further adultery on the third night, being presumed to have given to it his consent.^ On the other hand, when the condonation has proceeded from the wife, it has been considered rather a virtue in her ; and the courts have refused to infer connivance from it against her, where, under like circumstances, they would infer it against the husband.^ § 23 [346]. So the husband's conduct, after he knows that adultery has been committed by the wife, may be evidence of his connivance, but it is not connivance itself. Of this nature is culpable indifference to it ; * shown, for instance, by his delay to institute proceedings for divorce,^ or by his 1 Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22; Dunn u. Dunn, 2 Phillim. 403, 411, 1 Eng. Ec. 280, 284, where Sir John NiohoU says : " If the adultery is forgiven with such extreme facility as to show no sense of injury, and no care is taken to prevent it from happening again, then the husband has no ground of complaint, for he has encouraged the adultery by his conduct." But see s. o. in Court of Delegates, 3 Phillim. 6, 1 Eng. Ec. 353. And see observations of Sir John NichoU, in Durant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310, 316, 319, 323 ; Lovering v. Lovering, 3 Hag. Ec. 85, 5 Eng. Ec. 27 ; Westmeath v. West- meath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238,290; Walker «. Walker, 2 Phillim. 153. 2 Timmings v. Timmings, supra. See also Phillips v. Phillips, 1 Robertson, 144, 158 ; ante, § 17 and note ; Snow v. Snow, 2 Notes Cas. Supp. 1, 15. ^ Angle V. Angle, 12 Jur. 525 ; ante, ^ 17. See post, § 23, note. And see observations of Sir John NichoU, in Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290. * Stone V. Stone, 1 Robertson, 99, 3 Notes Cas. 278, 307. 6 Kirkwall v. Kirkwall, 2 Hag. Con. 277, 4 Eng. Ec. 541. This was a suit by the wife, alleging her husband's adultery ; and her delay to institute the suit was held not to be sufficient evidence of her connivance. Lord Stowell observed : " There is nothing in the facts charged to show that Lady Kirkwall's suspicions must, of necessity, have been excited, or that the adultery might not have taken [16] CHAP. n.J CONNIVANCE. § 23 neglect to interfere while she is living, with his knowledge, in adultery.^ Thus where the wife had resided with her children in a gentleman's house, of which she was treated as the mistress, and had there been delivered of three children ; without any express permission by the husband appearing, but without his sufficiently accounting for his absence, or providing for her, or interfering with such residence ; Sir William Wynne was of opinion, that he must be presumed place without her knowledge ; but supposing that she was acquainted with it, though a husband is bound to take prompt notice of the infidelity of his wife, and is liable to have his neglect for so doing urged against him, when afterwards seek- ing his legal remedy ; yet this doctrine is not to be pressed against a wife, unless in very particular cases. Even in the case of a husband, it is not invariably expected that he should show the time when the charge first came to his knowl- edge. It might be prudent, and expedient for the success of his suit, that he should do so, but it is not absolutely necessary : something must be allowed to con- venience. Certainly a wife would not be justified in living in the same house with her husband's concubine, sharing the turpitude of his crime, and partaking of a polluted bed ; but she might have a reasonable hope of his return to her society, and forbearance, under this spes recuperandi, has never yet been held to constitute a bar to her legal remedy, when every hope of that kind should he extinct. I, therefore, admit this libel to proof." And see, in connection with this case, Ferrers v. Ferrers, 1 Hag. Con. 1 30, 4 Eng. Ec. 354. See also Angle v. Angle, 12 Jnr. 525, 634, 640, 641 ; ante, § 17, 22,; Beeves v. Eeeves, 2 Phillim. 125, 1 Eng. Ec. 208; Ending v. Ending, 1 Hag. Ec. 740, note, 3 Eng. Ec. 314 ; Durant V. Durant, 1 Hag. Ec. 733, 760, 3 Eng. Ec. 310, 323 ; Walker v. Walker, 2 Phil- lim. 153. 1 Crewe ». Crewe, 3 Hag. Ec. 123, 131, 5 Eng. Ec. 45, 49. In this case Lord Stowell remarked : " Another ground of objection is the connivance, or toleration, of the husband ; he may have an insensibility to his own honor, and, from a con- formity to the corrupt manners of the world, may have" no wish to pursue a legal remedy, or may not think it worth pursuing ; and, if such a person, after a long continuance of toleration, of himself awakes, or is compelled by the clamor and outcry of the world to awake, he awakes tob late. If the adultery has gone on for a length of time, he does not stand before the court in the favorable light of a person acting on the spur of honest feeling, whom the law delights to succor ; he has made up his mind to some other satisfaction. I do not mean by this to say, that the hus- band is immediately to rush into court upon suspicion ; he must wait for adequate proof, but he is to show his vigilance ; he is not to lie by, longer than to obtain proof ; if he does, his lethargy will be fatal to any application that he may make ; whatever his motives may be for coming afterwards, if it be proved that tliere has been a long course of criminal conduct of which he was cognizant, or of which by law and by presumption he must be supposed to have been cognizant, he cannot receive relief." VOL. II. 2 [ 17 ] § 24 THE DEFENCES. [BOOK I. to have consented to the adultery.^ It may be uncertain, however, whether the courts of the present day, in the United States, would give full effect to precedents of this nature,^ though they would no doubt yield them a considerable degree of respect. For when a wife has committed adultery, the husband is under no further obligation, legal or moral, to support her. How, then, can it be said, that he connives at her further adultery, merely because he refuses to pay her an annuity while living in it, or because he exercises no marital control over her person, after he has rightfully ceased to afford her his marital protection ? There are several of the older English cases which magnify the office of husband somewhat beyond modern American opinions ; making the wife a more complete satellite than either the facts of actual life, or the general sentiment with us, would Indicate. § 24. In estimating the effect which considerations of rela- tive rights and duties should have, not only upon the ques- tions discussed in the last and in several of the preceding sections, but throughout these entire volumes, we should inquire, whether the right, on the one hand, or the duty, on the other hand, is a right or duty resting distinctly in the law, or is merely a matter of common usage in the com- munity. If of the latter kind, the result to be deduced therefrom should change as the usage changes ; if of the former, the result should change only with the law. For example, by the law, not only as it formerly was, but as it now exists, the husband is entitled to fix the common matri- monial residence ; therefore, in our first volume, the writer dissented from some modern notions according to which it was deemed not necessarily to be desertion for the wife to refuse, without known legal excuse, to follow the husband when he attempts to change the matrimonial domicile.® Therefore also it is, that the author would not always deduce I Michelson v. Michelson, 3 Hag. Ec. 147, 5 Eng. Ec. 56. ^nd see Crewe v. Crewe, supra; Whittington ». Whittington, 2 Dev. & Bat. 64. ^ See Van Aemam ». Van Aemam, I Barb, Ch.375. s Vol. I. § 788-790. [18] CHAP, n.] CONNIVANCE. § 26 in the circumstances now under consideration, the same legal consequences which the judges of England do from like facts, where the usages of society are different. § 25 [347]. Articles of separation may be so framed as to constitute a license to the wife to live in adultery ; and, if such is their true import, and is likewise the intent of the husband, he cannot have the remedy of divorce for the adul- tery to which he has thus consented. But suppose this intent is fairly deducible from the articles themselves, still the deduction may be controlled by counter evidence, out- side, it seems, of the articles ; and it must be so controlled, or he cannot have a divorce.^ A deed of separation con- taining the usual covenants, that the wife may dwell where and in such manner as she pleases, and be free from the restraint of her husband ; that he will not bring against her a suit for the restitution of conjugal rights ; and others of like import ; will not be construed as a consent to her living in adultery .2 And if doubtful words will admit of a con- struction favorable to innocence, this construction will be given them, rather than the other.^ § 26 [348]. In England, previous to Stat. 20 & 21 Vict. c. 85, it was customary, not necessary, for the husband, learning his wife's adultery, to sue at common law the particeps criminis, before proceeding in the Ecclesiastical Court ; and then plead in this court the verdict, which, if in his favor, was considered as tending to rebut any pre- sumption of connivance. Lord Stowell once remarked : " The verdict, giving such large damages, it is forcibly con- tended, rebuts the argument of connivance ; for it shows, either that no such defence was attempted, or that it was not proved. It has been often observed, that a verdict to the disadvantage of the husband is strong evidence ; because he 1 Barker v. Barker, 2 Add. ^c. 285, 2 Eng. Ec 307. " Sullivan v. Sullivan, 2 Add. Ec. 299, 2 Eng. Ec. 314 ; Bichardson ». Eich- ardsoD, 1 Hag. Ec. 6, 3 Eng Ec. 13, 15. 8 Studdy V. Studdy, 1 Swab. & T. 321. [19] § 2T THE DEFENCES. [BOOK I. is a party to both proceedings, and therefore such a verdict ■will operate in other courts ; but a verdict against the adul- terer is slight evidence against the wife, who is no party to the action, and who has no control in the conduct of it. At the time of the trial she is often at variance with the adul- terer : he may have good reasons not to set up a defence which she may sustain. The defence of connivance is haz- ardous where the action is for damages, for it is to be proved by circumstances, and if it should fail it will inflame the damages." ^ § 27. The admission of a verdict, under such circum- stances as are mentioned in our last section, is not quite in accordance with the general rules, on this class of subjects, prevailing in our common law courts. And perhaps — the writer does not here intend to preclude further inquiry, or to enter particularly into the question as it rests either in principle or in general authority — a doubt may be enter- tained, whether our tribunals, especially in cases tried before a jury, would receive to any extent, or for any purpose, unless in some exceptional case, for such a collateral matter as to show an absence of collusion, or the like, a verdict of the kind now under contemplation. The point is not hitherto eluci- dated by any reported decision ; and this intimation is given only by way of caution to the practitioner. 1 Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28, 37. And see Rix v. Eix, 3 Hag. Ec. 74,5 Eng. Be. 21, 22; Crewe v. Crewe, 3 Hag. Ec. 123, 133, 5 Eng. Ec. 45, 49; Phillips v. Phillips, 1 Robertson, 144, 156; Halford v. Hal- ford, Poynter Mar. & Biv. 200, note; Dunn v. Dunn, 2 Phillim. 403, 1 Eng. Ec- 280, 285. [20] CHAPTER III. COLLUSION. § 28 [350]. Collusion, in the matrimonial law, is an of- fence very near of kin to connivance. It is an agreement between husband and wife, for one of them to commit, or to appear to commit, or to be represented in court as having committed, a breach of matrimonial duty, for the purpose of enabling the other to obtain the legal remedy of divorce or separation, as for a real injury.^ Where the act com- plained of as ground for divorce has in truth not been done, collusion is a real or attempted fraud upon the court ; where it has, it is also a species of connivance ; in either case, it is a bar to the prayer for divorce. In one case, Lord Stowell is reported to have said : " Collusion may exist without con- nivance, but connivance is (generally) collusion for a par- ticular purpose " ; ^ doubtless a clerical error, or mistake of the reporter, corrected by a substitution of words, thus : " Connivance may exist without collusion, but collusion is (generally) connivance for a particular purpose." § 29 [351]. Collusion, being a species of conspiracy, to which two minds must consent, cannot be committed by the defendant alone ; neither will any conduct amount to it, not implicating the party against whom it is set up.^ Therefore 1 Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ec. 45, 48 ; 1 Fras. Dom. Eel. 703 ; Jessop V. Jessop, 2 Swab. & T. 301. In the latter case the Judge Ordinary said: " Collusion is not, like condonation, a well-understood term ; it may be [among other things] by keeping back evidence of what would be a good answer, or by agreeing to set up a false case.". 2 Crewe v. Crewe, supra. ' 1 Fras. Dom. Eel. 703. [21J § 80 THE DEFENCES. [BOOK I. if the party guilty of a matrimonial offence wishes to be divorced, this is not collusion : if he committed the offence with the expectation of thereby stimulating the innocent party to apply for divorce, as well as of furnishing founda- tion for it ; or if, when a cause exists, both parties wish to have the matrimonial relation suspended or dissolved, — none of these things, no analogous things, will constitute collusion.^ The question is, whether the plaintiff has suffered a real in- jury, and bond fide seeks relief ; if so, there is no collusion.^ Most unjust -tvould it be to refuse the remedy simply be- cause the delinquent desired it should be applied. A propo- sition like this is tantamount to the absurdity of allowing a divorce, when the defendant has done a certain amount of matrimonial wickedness ; but, when he adds another grain to the lump, refusing it. § 30 [352.] Collusion, like connivance,^ will not be pre- sumed without proof, or matter appearing from which it may be affirmatively inferred.* , But the vigilance of the court may be aroused by slight circumstances, quite inade- quate to prove collusion, yet calling for peculiar scrutiny in respect to every part of the evidence. Thus, Lord Stowell once remarked : " There are circumstances in this case which alarm the jealousy of the court, as appearing a little sus- picious ; there is no plea on the part of the wife, nor are any interrogatories administered. The verdict, which has been 1 Utterton v. Tewsh, Ferg.. 23, 4 Bng. Eo. 347, 358 ; Kibblewhite v. Rowland, Ferg. 226, 233, 3 Eng. Ec. 406, 408 ; Sugden v. Lolly, Eerg. 269, 3 Eng. Ec. 426 ; Note (B), Ferg- 363, 3 Eng. Ec. 482. 2 Crewe v. Crewe, 3 Hag. Eo. 123, 5 Eng. Ec. 45, 48, 49 ; Brealy v. Eeed, 2 Curt. Ec. 833, 7 Bng. Ec. 328 ; Shelford Mar. & Div. 738. See Mansfield v. Mans- field, Wright, 284. If the suit is carried on by a plaintiff, not from any desire of his own to obtain the remedy, but for the benefit and at the request of the de- fendant, there are several principles which would lead the court to dismiss it. In one case, something like this was called by the court collusion. Lloyd i>.^Lloyd, 1 Swab. & T. 567, 573. 3 Ante, § 14. * Pollard V. "Wybourn, 1 Hag. Bo. 725, 3 Eng. Be. 308 ; Deane v. Deane, 12 Jur. 63, 64. [22] CHAP. III.] COLLUSION. § 31 pleaded, was obtained nearly on a default, and without any defence. This proves a great facility, at least, and will make the court more vigilant to see that the two main points of such cases are suflBciently proved ; namely, the criminal act, and that the person against whom the proof of that act is established was the wife." ^ And when the plaintiff relies in whole or in part on the confessions of the defendant, he may find it necessary to show affirmatively that there was no collusion, to give strength to the confessions.^ In an Ohio case, in which the suspicion of the court was aroused, but there was still no sufficient proof of collusion, the plain- tiff was permitted either to have his bill dismissed without prejudice, or continued, that he might produce further evi- dence, as he should be advised. He elected the latter course ; and, on a hearing at a subsequent term, a decree was entered in his favor.3 Still the court is bound to grant the divorce, unless the collusion is established in evidence ; for mere sus- picion will no more justify the withholding of action, than it will justify action.* § 31 [853]. In Scotland, to prevent collusion, the pursuer is in all cases required to take what, in the language of the Scotch law, is termed the " Oath of Calumny." " It de- clares," says Mr. Eraser, " that he has just cause to insist on the action, because he believes (supposing it to be divorce for adultery) that the defender has been guilty of adultery, and that the libel is true ; that there is no collusion between the parties to obtain the decree, and no agreement between any other persons on his behalf for that purpose Prior to the emission of the oath, it is competent for any party 1 Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415. 2 Greenstreet v. Cumyns, 2 Fhillim. 10, 1 Eng. Ec. 165, 166; s. c. 2 Hag. Con. 332. ' Wolf V. Wolf, Wright, 243. See also (and quBBre) Smith v. Smith, Wright, 643 ; Friend v. Friend, Wright, 639. * Baily v. Baily, 1 Lee, 536. See Emmons v. Emmons, Walk. Mich. 532 ; Hanks V. Hanks, 3 Edw. Ch. 469; a rule of court (N. Y. Rule, 168) made it necessary for the plaintiff to aver, " that the adultery charged in such hUl was committed without his consent, connivance, privityj or procurement." [23] § 32 THE DEFENCES. [BOOK I. having an interest, such as the creditors of the defender, or for the conrt ex officio, to show that there is collusion ; and this may be by the examination of witnesses, or letters, or the parties themselves. After the oath of calumny has been emitted, it is incompetent to inquire further as to whether there was collusion, and a reduction of the decree of divorce on this ground would be incompetent." ^ Mr. Pergusson has said, that " the parties who commit this offence against the course of justice have such facility of concealment, and the inquiry is of so difficult and unpleasant a nature, that the records of the Consistorial Courts of Scotland do not, per- haps, exhibit a single attempt to detect this malpractice, which has been successful in the result." ^ § 32. In like manner, by the present English law, it is pro- vided, Stat. 20 & 21 Vict. c. 85, § 41, that " every person seeking a decree, &c., shall, together with the petition or other application for the same, file an affidavit verifying the same so far as he or she is able to do so, and stating that there is not any collusion or connivance between the deponent and the other party to the marriage." And the prevention of collusion is further attempted by the later English statute of 23 & 24 Vict. c. 144, § 7, wherein, among other things, pro- vision is made for the intervention of the Queen's Proctor in cases where collusion is suspected.^ 1 Fras. Dom. Rel. 701, 702. 2 Ferg. 363, 3 Eng. Ec. 482 ; 1 Fras. Dom. Eel. 703. Something like the oath of calumny used to be required of the applicant for divorce before the House of Lords. Simmons's Divorce Bill, 12 CI. & F. 339. ' See, among other cases of intervention under this latter statute, Drummond v. Drummond, 2 Swab. & T. 269 ; Gray v. Gray, 2 Swab. & T. 263, 276, 554 ; Cox r. Cox, 2 Swab. & T. 306 ; Jessop v. Jessop, 2 Swab. & T. 301 ; Latour v. Latour, 2 Swab. & T. 524 ; Gethin v. Gethin, 2 Swab. & T. 560 ; Harris v. Harris, 2 Swab. & T. 530 ; Boulton a. Boulton, 2 Swab. & T. 638 ; Pollack v. Pollack, 2 Swab. & T. 648. So many cases, found iu a single volume of reports, show, that this pro- vision is by no means a dead letter ; but I am not snfiSciently acquainted with the undercurrents in the matrimonial law-practice of England to be able to state, whether this large business, done by the Queen's Proctor in the way of intervening, is in every sense legitimate, or whether it is chiefly, or also, one of the outside modes of defence really resorted to by the parties. [24] CHAPTER IV. CONDONATION. I Sect. 33-35. Introduction. 36-45. The General Doctrine of Condonation. 46 -62. Some Views attendant on tlie General Doctrine. 63 - 66. Conditional Quality of tlie Condoning Act. 67 - 69. Distinction between the Law and the Evidence. 70, 71. The Evidence. 72, 73. Statutes relating to this Subject. ■' § 33 [354]. The next defence of a general nature, to be considered, is condonation. It, differs from connivance the same as a plea in discharge of a contract differs from a plea denying its original obligation. In connivance, no injury is done to the party complaining ; in condonation, the injury is forgiven. Condonation, therefore, as applied to the subject under discussion, may be described in general terms to be the conditional forgiveness or remission, by the husband or wife, of a matrimonial offence which the other has committed.^ The nature of the condition will be considered further on. While the condition remains unbroken, condonation, on whatever motive it proceeded, is an absolute bar to the remedy for the particular injury condoned. The doctrine has its foundation in natural justice, and prevails in most civilized countries.^ 1 Ferrers v. Ferrers, 1 Hag. Con. 130, 4 Eng. Eo. 354 ; D'Agailar v. D'Aguilar, 1 Hag. Ec. 773, 781, 3 Eng. Ec. 329, 334 ; Westmeath v. Westmeath, 2 Hag. Ec. Sapp. 1, 4 Eng. Ec. 238, 289 ; Worsley v. Worsley, 2 Lee, 572, 6 Eng. Ec. 249 ; Smith V. Smith, 4 Paige, 432 ; Durant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310, 323 ; Snow v. Snow, 2 Notes Cas. Supp. 1, 12. 2 Johnson v. Johnson, 4 Paige, 460, 1 Edw. Ch. 439, I Fras. Dom. Rel. 462, [25] § 34 THE DEFENCES. [BOOK I. § 34. The first instance in which a definition of condo- nation is laid down in the English book occurs, it appears, in the report of a case tried in 1858. There the Judge Ordi- nary instructed the jury, " that condonation means a blotting out of the offence imputed, so as to restore the offending party to the same position he or she occupied before the offence was committed." The conditional nature of condonation was not presented by the facts of the case ; if it had been, the definition would probably have been qualified by the in- sertion of the word conditional before " blotting." The judge considered, that condonation means something more than forgiveness ; it implies a reinstating of the wife in her former matrimonial position toward the husband. On a motion to set aside the verdict of the jury, the question of the correct- ness of this definition came before the whole court for con- sideration, and the full bench of judges concurred in holding it to be correct. Said Lord Chancellor Chelmsford : " I think that the forgiveness which is to take away the husband's right to a divorce must not fall short of reconciliation, and that this must be shown by the reinstatement of the wife in her former position ; which renders proof of conjugal cohabi- tion, or the restitution of conjugal rights, necessary." ^ With- out undertaking to criticise this definition, and without seeing any particular occasion to depart from the terms used in our last section as descriptive of the condoning act, — being the terms which were employed, as the definition of the act, in the earlier editions of this work, — the author will suggest, as a fuller and perhaps more exact definition, the following : Condonation is the remission of a matrimonial offence known to the remitting party to have been committed by the other ; on the condition subsequent, that ever afterward the party remitting shall be treated by the other with conjugal kind- ness. 666. See note to Best v. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158, 159 ; Quincy v. Qaincy, 10 N. H. 272 ; Anonymoas, 6 Mass. 147. 1 Keats V. Keats, 1 Swab. & T. 334, 346, 357. This is a case of great interest. And see Ratcliff v. Ratcliff, I Swab. & T. 467, 473, as in effect affirming this doctrine. [26] CHAP. IV.j CONDONATION. § 37 § 35. The further discussion of this subject will be con- ducted in the following order : I. The General Doctrine of Condonation ; II. Some Views attendant on the General Doctrine ; III. The Conditional Quality of the Condoning Act ; IV. The Distinction between the Law and the Evi- dence ; V. The Evidence ; VI. Statutes relating to this Subject. I. The General Doctrine of Condonation. § 36 [355]. Condonation, like connivance, rests, in a phil- osophical and exact view of the matter, in the mind. But there have been so many technical rules adopted, for the pur- pose of determining when the condonation has passed, that they, rather than the mere abstract doctrine, must lead the following discussion. § 37 [356]. The forgiveness now treated of may pass in words ; that is, the condonation may be expressed in lan- guage ; or it may arise, by implication, out of acts done.^ In the former case, little difficulty can attend the subject ; but, when the condonation is to be inferred, the question may cre- ate much embarrassment, being complicated of interwoven fact and technical law. There would seem possibly to be some doubt cast, by recent English discussions referred to in a previous section,^ upon the question, whether, in law, a condonatioij can take place by mere words, or whether there must not be at least some accompanying act, by way of re- storing the wife to her former matrimonial position. This question, however, is rather theoretical than practical ; for, in facts actually transpiring, we could hardly imagine a case in which nothing but words should pass, — in which no act 1 Quincy v. Quincy, 10 N. H. 272 ; Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ec. 338, 340 ; Snow v. Snow, 2 Notes Cas. Snpp. 1, 12. 2 Ante, § 34. And see post, § 47, note. [27] § 38 THE DEFENCES. [BOOK I. affirmatory of the forgiveness should either attend or follow the words. § 38 [357]. A plain proposition is, that the forgiveness cannot take place without a knowledge of the existence of the thing forgiven.^ When, however, one of the married parties has received knowledge of the breach of matrimonial duty by the other, if such party continues or renews the co- habitation, he is presumed, in law, to have condoned the offence;^ for no man — so says the law — would take a de- linquent wife to his bed, unless he had forgiven her.^ Proba- bly this presumption cannot be rebutted by showing a si- multaneous agreement or intent for the cohabitation not to operate as condonation ; since, though the point appears not 1 Dnrant v. Durant, 1 Hag. Ec. 733, 751, 3 Bng. Be. 310, 319; Popkin v. Pop- kin, 1 Hag. Ec. 768, note, 4 Eng. Ec. 325, 326 ; Keats v. Keats, 1 Swab. & T. 334. 2 Delliber v. Delliber, 9 Conn. 233 ; "Williamson v. Williamsoff, 1 Johns. Ch. 488 ; Dysart v Dysart, 1 Robertson, 106, 108 ; Phillips v. Phillips, 4 Blackf. 131 ; Wood V. Wood, 2 Paige, 108; McDwire v. McDwire, Wright, 354 ; Threewits v. Threewits, 4 Des. 560 ; Johnson v. Johnson, 4 Paige, 460 ; Mayhugh v. Mayhugh, 7 B. Monr. 424 ; Hall v. Hall, 4 N. H. 462; Quincy v. Quincy, 10 N. H. 272 ; Barnes v. Barnes, Wright, 475; Questel v. Qaestel, Wright, 491; Cooper v. Cooper, 10 La. 249 ; 1 Eras. Dom. Rel. 666 ; Snow v. Snow, 2 Notes Cas. Supp. 1, 12; Buckholts v. Buckholts, 24 Ga. 238; Marsh v. Marsh, 2 Bearsley, 281 ; Backus n. Backus, 3 Greenl. 136 ; Twyman v. Twyman, 27 Misso. 383 ; Harper V. Harper, 29 Misso. 301. In Evans v. Evans, 7 Jur. 1046, where the bringing of a suit for the restitution of conjugal rights, and a cohabitation following, were held to be a condonation. Dr. Lnshington seemed to regard even the institution of the suit alone as sufficient, without the cohabitation. His words are : " If the treatment of a wife be such as to render the return to cohabitation unsafe, the commencing of a suit for the restitution of conjugal rights is a perfect condonation ; for surely, if a husband has been guilty of conduct towards his wife endangering life and limb, it 'is rather an extraordinary mode of procuring redress to resort to a suit for the resti- tution of conjugal rights, — to return to the very person whose conduct has been the cause of the danger. I must say, that such a measure does create a very strong presumption that the wife never could have considered her life in danger, when she voluntarily seeks a forced return to that state where she will be exposed to a rep- etition of such conduct, and that without protection.'' s. r. query, Neeld v. Neeld, 4 Hag. Ec. 263, 268. The point put by Dr. Lushington, however, should rather be regarded as being, that, in a case of alleged cruelty, the conduct of the wife shows this ofifence not to have existed in fact. 3 Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ec. 338, 340. [28] CHAP. IV.] CONDONATION. . § 39 to have been directly adjudicated, no instance of the affirma- tion of this proposition being maintained is found in the books ; while, if such a doctrine were allowed to prevail, it would place the marriage relation of the parties, as to its continuance, in their own hands, and they could treat it, after these facts had transpired, practically as a mere temporary arrangement, contrary to the general policy of the law. And Parsons, C. J., remarks : " It would be injustice to the wife, and immoral in the husband, to claim and enjoy as his pecu- liar marital rights the society of his wife, after a knowledge of her offence, and afterwards to cast her off for that same offence." ^ § 39 [358]. But let us inspect' more minutely the princi- ples just stated. There must, we said, be a knowledge of the offence.^ This implies, first, the existence of it ; secondly, a belief of its existence. " The true import of the rule, in my opinion," said'Parsons, C. J., " is, that the cohabitation of the husband, after the commission of the offence, and after he believes, on probable evidence, the guilt of his wife, is conclusive evidence of the remission. For he cannot be considered as having impliedly forgiven a crime which he does not believe to have been committed. And without that belief he cannot have knowledge of the crime ; for he may have received the information without giving it credit." ^ But people usually believe on sufficient grounds of belief being presented : so presumes the law. Thus, where a woman sued for divorce alleging her husband's adultery, of which he had been convicted criminally ; and he showed in defence, that, after his conviction, she, with knowledge of it, lodged two or three nights with him in prison, where she had sexual intercourse with him ; her prayer was denied, although it was urged for her that she might not have believed he was guilty.* 1 Anonymous, 6 Mass. 147, 148. 2 ^ntg^ ^ 33 * Anonymous, 6 Mass. 147. And see Dillon v. Dillon, 3 Curt, Ec. 86, 117, 7 Eng. Ec. 377, 390. ■ * DelUber r. Delliber, 9 Conn. 233. [29] § 41 THE DEFENCES. [BOOK I. § 40 [359]. Therefore the rule is usually stated to be, that the cohabitation, after probable knowledge of the offence, is a presunaptive remission of it.^ This probable knowledge has been said to exist where information of facts has been given by credible persons, speaking of what they have seen ; par- ticularly if the party afterward produces these persons as witnesses in the case, and by their testimony establishes the same facts.^ And where the husband's witnesses, he being promoter in a suit for adultery, had told their story to his legal advisers in his presence, yet he neglected for two years to institute proceedings, and cohabited with his wife mean- while, he was held to have possessed the knowledge which renders cohabitation a bar.^ A fortiori, a plaintiff cannot continue the matrimonial intercourse during the pendency of the suit, without its working a condonation.* Circumstances which excite suspicion merely, brought home to the mind of the party, will not alone amount to this probable knowledge.^ § 41 [360]. Yet there are cases in which the husband was holden to have pardoned the adultery of his wife ; at least, to have lost his right to complain of it ; though the evidence of her misconduct, coming to his knowledge, was no more than sufficient to excite his vigilance, and put him on the in- quiry. Thus, where a husband, having intimations and some evidence against his wife, neglected to make any investiga- tion, and put forth no endeavor to prevent a repetition of the injury ; but continued to cohabit with her till she left him and brought her suit for separation on the allegation of his cruelty ; and he, in the first instance, set up her adultery in defence merely, not praying for a separation till a later stage 1 Shelford Mar. & Div. 445 ; Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Eo. 877, 389 ; Best ». Best, in the Arches Court, Poynter Mar. & Div. 234, 235, note. " Poynter Mar. & Div. 232 ; Marsh ». Marsh, 2 Beasley, 281. ' Dobbyn v. Dobbyn, Poynter Mar. & Div. 233, note. * 1 Fras. Dom. ReL 668 ; Marsh v. Marsh, supra ; Harper v. Harper, 29 Misso. 301. ' Quincy v. Qulncy, 10 N. H. 272; Kirkwall v. Kirkwal), 2 Hag. Con. 277, 4 Eng. Ec. 541. [30] CHAP. IV.] CONDONATION. § 42 of the proceeding ; and the pircumstances throughout showed him to have been willingly blind to her failings, and anxious to retain her whether she was guilty or not ; the court held that he was not entitled to have his prayer for a divorce answered, though his charge of adultery was proved against her, and hers of cruelty was not proved.^ Yet we may ob- serve, of this case, that it plainly embraced a compound, not unusual in the English reports, of the two elements of con- donation and connivance. Dr. Lushington has said : " The truth is, and much of the obscurity arises from the fact, that, in the various discussions on this 'subject, the line of distinc- tion between condonation and other conduct which would equally bar a remedy, has not, and I might perhaps say could not, be perfectly observed. Thus it is that condonation has been mixed up with that which, though it works the same effect, is totally dissimilar in its nature. Both husband and wife may so repeatedly forgive adultery, that the remedy is forfeited, the party showing an insensibility to the injury." ^ We may observe also, that the above facts likewise disclosed what is sometimes technically called insincerity, — a matter of defence to be mentioned in a future chapter.^ § 42 [361]. In another case, Dr. Lushington, debating the £[uestion of admitting an allegation responsive to the hus- band's libel, observed : " Although Dr. Dillon pleads, that he did not believe the information that his wife had slept, on the night of the 29th of December, with a strange man, at the inn at Gadshill ; he acts as if he did credit it, and he continues to cohabit with her on the very night of the day on which he receives the information. Now I have always understood the legal principle to be this : that, when a hus- band has received information respecting his wife's guilt, and can place such reliance on the truth of it as to act on it, al- 1 Best V. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158; s. c. in the Arches Conrt, Poynter Mar. & Div. 234, note. ^ Snow V. Snow, 2 Notes Cas. Snpp. 1, 14. See Crewe v. Crewe, 3 Hag. Ec. 123, 132, 5 Eng. Ec. 45, 49 ; ante, ^ 22, 23 and note. > Post, § 103 et seq. [31] § 43 THE DEFENCES. [BOOK I. though he is not bound to remove his wife out of his house, he ought to cease marital cohabitation with her." But on the hearing of the case this learned judge did not deem the point to be conclusive against Dr. Dillon, though on other grounds he gave judgment for the wife.^ If a person, the friend of an injured wife, makes an investigation concerning an adultery alleged to have been committed by the husband, and thereupon tells her there is no cause of suspicion, and she is therefore reconciled to him, she will be presumed to be ignorant of the adultery, and so there will be no condo- nation .^ ' § 43 [362]. Indeed it has been said, — and this appears to be the sounder view, in principle, — that, for cohabitation to bar as a condonation the husband's remedy, it should be with his knowledge, not only of the ofiFence committed, but of his ability to prove it.^ Because, should he turn off his wife on the charge, which he is unable to make good in proof, how- ever well he may know it himself, that she is guilty, for example, of adultery, he would subject himself to pay for necessaries which any person might furnish her, — to the suit, in England, for the restitution of conjugal rights, — to the suit, anywhere, for divorce, resulting in a decree against him for alimony, on the ground either of cruelty or desertion ^ such an act being a gross one of cruelty, though perhaps not alone sufi&cient, — to the reproaches, also, of the community in which he dwells, for having inflicted the heaviest injury on one whom he is supposed to be under the most extreme obligation to protect. Therefore to infer against him a for- giveness of his wife's adultery, because he is unwilling to cast himself on these perils for the sole purpose of becoming a matrimonial martyr, without the smallest prospect of accomplishing thereby any useful object, is to draw an infer- ence as destitute of foundation in human nature or common ^ Dillon V. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 379, 389, 390. 2 Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232, 240. 3 Quincy v. Quincy, 10 N. H. 272, 274. [32] CHAP. IV.] CONDONATION. § 44 truth, as the principle acted upon would be of any relation- ship to ordinary justice. In such a case, his cohabitation cannot properly be deemed " voluntary," within the true meaning of the rule making voluntary cohabitation a bar.^ " A husband," says Lord Stowell, " has suspicions ; he has some intimations ; he has enough to convince his own mind, but not to institute a legal case. In that distressing interval, his conduct is nice ; and it is difficult to refrain from cohab- itation, as the means of discovery would be frustrated ; and, if he continues cohabitation, it then becomes liable to that species of imputation which has passed to the disadvantage of this gentleman." ^ " Observations," says Dr. Lushington, " which apply to a case where there is no direct evidence of the fact, although there are circumstances which render the fact probable " ; and it seems to be conceded, that, under such circumstances, the husband is not barred by continuing to cohabit with the wife.^ But where his ability to produce the proof is commensurate with his knowledge, there is no scope for this distinction. § 44 [363]. In the last chapter, we considered some cir- 1 In Hofmire v. Hofmire, 7 Paige, 60, Chancellor Walworth seems to be of the opinion that cohabitation, by the wife with her husband, after a private confession to her of an act of adultery which she is unable to prove, would not bar her suit for divorce, brought upon a subsequent discovery of the means of establish- ing his guilt. And he says : " His private admission of the fact to her was not sufficient to authorize her to take any proceeding against him, or even to protect her friends for harboring her against his will, if she had then abandoned his bed and board." See D'Aguilar v. D'Aguilar, 1 Hag. Ec. 773, 3 Eng. Eo. 339, 337, where Lord Stowell says : " It is not shown she knew it so that she could legally prove it. If it was shown that he had avowed it to her, it might be a condonation as to that particular fact." But in Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22, 23, the same judge observes : "Although, by the rules of law, a confession does not satisfy the mind of the judge, it must satisfy the mind of the husband, particularly when direct and unequivocal, as in the present instance. And what is his behavior upon it 'i His mother, in an interrogatory, says, ' he wished his wife to go from him ; but, on the intercession of friends, he consented to live with her.' This, then, is a direct condonation." " Elwes V. Elwes, 1 Hag. Con. 269, 292, 4 Eng. 401 412. 8 Dillon V. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 389. VOL.11. 3 , [33] § 45 THE DEFENCES. [BOOK I. cumstances in ■which a party is held to connive at the adul- tery of the other party, because of being too free to forgive adultery committed.^ The substance of the doctrine there stated is, that, as a man may be charged with a credit pro- cured by a third person, if formerly he has paid similar claims, though he gave in fact no express authority to the third per- son ; so a husband, overlooking readily an adultery commit- ted by his wife, or especially overlooking from time to time repeated adulteries, may be presumed to tacitly aiithorize her to follow her adulterous course. But where no scope for this doctrine is found in the facts of a case, the cohabitation, to be a complete bar, must be with full knowledge of all the adultery ; and the forgiveness of one act is not the forgive- ness of another. Indeed, a party might consent to pardon a single offence committed under mitigating circumstances, yet not to pardon more than one, much less a series of offences.^ And there is a strong intimation in a late English case, which will be referred to again further on, that, if the party against whom the condonation is alleged knew of only a part of the guilt of the other party, the condonation does not attacli even to what was known.^ An insane person, on being restored to reason, may condone adultery committed during his in- sanity.* § 45 [364] . In circumstances wherein condonation is sufiS- ciently inferred from cohabitation, there need not be a con- tinued matrimonial intercourse ; it is enough, at least with re- gard to the husband, if he has been once in bed with his wife, after knowledge of her adultery.^ It appears to be so also. 1 Ante, § 22. " D'Aguilar v. D'Agnilar, 1 Hag. Ec. 773, 3 Eng. Eo. 329, 337 ; Darant v. Durant, 1 Hag. Be. 733, 3 Eng. Ec. 310 ; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130, 136; Bramwell r. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232, 238. 8 Dempster v. Dempster, 2 Swab. & T. 438. See post, § 65. * Parnell v. Pamell, 2 Phillim. 158, 160, 1 Eng. Ec. 220, 222. 5 Hutchinson v. Hutchinson, a Scotch case, cited 1 Eras. Dom. Eel. 667 ; Tim- mings V. Timmings, 3 Hag. Ec. 76, 5 Eng. Eo. 22 ; ante, § 22, 42 ; Snow v. Snow, 2 Notes Cas. Supp. 1, 14. r34i CHAP. IV.J CONDONATION. § 6 in some circumstances, even with regard to the wife.^ Yet the doctrine thus stated is not absolute and free from excep- tion ; it is qualified in various ways and degrees, particularly as applied to the wife. In sections further on,^ this matter will be resumed ; and the reader should take into his consideration what is said there in connection with what is said here. And an excuse may exist for a brief cohabitation, which would not apply to a longer one ; a difference, likewise, in respect to condonation, between adultery and cruelty.^ II. Some Views attendant on the General Doctrine. I § 46 [365]. Where the husband and wife have separate beds, and no sexual intercourse, condonation is not always to be inferred from their living in the same house together.* Poynter says, it is not necessary " that a husband should instantly close his doors upon an offending, and, it may be, repentant wife ; recollecting her former innocence, he may indulge, at least, in some feelings of pity for her degraded situation ; and, until a fit retirement is provided, allow her the protection of his roof, but not the solace of his bed." Yet he thinks " condonation may possibly be inferred, more par- ticularly against the husband, if within a reasonable time the 1 Delliber v. Delliber, 9 Conn. 233. See, howeyer, Gardner v. Gardner, 2 Gray, 434 ; Armstrong ». Armstrong, 32 Missis. 279, 290, 298. 2 Post, § 49-52. ' Snow v. Snow, 2 Notes Cas. Supp. 1. " Dance v. Dance, 1 Hag. Ec. 794, note, 3 Eng. Ec. 341 ; 1 Eras. Dom. Rel. 666; "Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 118, 4 Eng. Ec. 238, 292 ; D'Aguilar v. D'Aguilar, 1 Hag. Ec. 733, 3 Eng. Ec. 329, 335 ; Snow v. Snow, 2 Notes Cas. Supp. 1, 16. ]|n Westmeath v. Westmeath, the husband, having in- flicted acts of cruelty upon his wife, in consequence of which the parties separated under articles, brought, subsequently to this separation, a suit against her for the restitution of conjugal rights. She answered this suit by setting up the ante- cedent cruelty, and prayed for a divorce ; to escape from which, he replied in an allegation of condonation. And the court held, that her permitting him, at the urgent request of himself and their mutual friends, in order to prevent the rupture becoming public, to occupy, for a short time, a separate bedroom in her house, and to dine with her, did not amount to condonation ; neither did it prove that she did not consider cohabitation unsafe. And see ante, § 42. [35] § 47 THE DEFENCES. [BOOK I. parties do not entirely separate." ^ The general presumption is, that married persons living in the same house do live on terms of matrimonial cohabitation ; but this presumption may be repelled by the circumstances of the particular case.^ If the husband has removed his wife from him, and she alleges a condonation by an act of intercourse with her after such removal, she must prove such act by clear and distinct evidence.^ § 47 [366] . A mere promise of future forgiveness, or an unaccepted invitation to the guilty party to return to the matrimonial bed, with an offer of condonation on this event, amounts to no more than a willingness to condone, or an overture, not binding till accepted, and subject to be with- drawn, like any other offer : it is not condonation ; it does not bar the remedy.* A contrary doctrine appears to have been in the minds of the judges in an Indiana case, where it was observed : " Although the testimony before us is extremely vague, it may yet be? inferred, if any part is properly appli- cable to the charge of adultery, that the commission of that offence by the defendant was known to the plaintiff when he endeavored to induce her to return to him. Such an effort, made with knowledge of the fact, was a waiver of any right of relief." ^ But the doctrine here suggested is so foreign to the spirit of all just laws, — it so overlooks also the established principle of our jurisprudence, that the thought of a man, undeveloped in act,® is not to bind him, — as to create doubt, whether it would be adopted, after consideration, by any court.'^ Tet evidence of such an offer from a complaining 1 Poynter Mar. & Div. 236. Bat see Wright v. Wright, 6 Texas, 3. 2 Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. 338, 342 ; Snow v. Snow, 2 Notes Gas. Sapp. 1, 13 ; I Eras. Dom. Rel. 666. * Campbell v. Campbell, Deane & Swabey, 285. * Popkin V. Popkln, 1 Hag. Ec. 766, 3 Eng. Ec. 325, 326 ; Ferrers v. Eerrers, 1 Hag. Ec. 781, note, 3 Eng. Ec. 334 ; Quarles v. Quarles, 19 Ala. 363 ; Peacock v. Peacock, 1 Swab. & T. 183 ; Severn v. Severn, 3 Grant, TJ. C. Ch. 431. ^ Christianberry v. Christianberry, 3 Blackf. 202. 8 See 1 Bishop Crim. Law, § 312. ' The case of Keats ». Keats, 1 Swab. & T. 334, is not only contrary to this In- [36] CHAP. IV.] CONDONATION. § 49 wife, ill a cause of cruelty, might be important as sliowing she did not believe there was personal danger in the cohab- itation ; perhaps also it might, in some circumstances, afford auxiliary proof of condonation.^ § 48 [367] . A condoi^ation may be inferred from the par- ty's neglecting to prosecute a suit for divorce already com- menced ; 2 and this circumstance, contrary to the general rule,^ has been deemed to press more heavily against the wife than the husband.* Perhaps the reason of this unusual discrimination in the husband's favor may be, that, after the wife has commenced her suit, she not only is out of his power or control, but she may ordinarily compel him to provide the means to carry it on ; while he, if plaintiff, might be impelled to discontinue it from apprehensions of poverty. But mat- ters of this kind plainly need to be considered in reference to the circumstances of particular cases, rather than to be de- veloped into general rules. Moreover, the dismissal of a suit, by agreement of the parties, has been held to bar a future suit for the same cause ; the principle being, it seems, that the agreement and dismissal operate as a species of condo- nation.^ We may doubt, also, whether this would be the consequence under all circumstances. § 49 [368]. Condonation is not so easily • inferred and is not so strict a bar against the wife as against the husband.^ diana doctrine, but it almost holds, perhaps quite, that no words alone, without some act of receiving back the wife, possibly it need not be sleeping in the same bed with her, will amount to condonation. And see ante, 4 34, 37. 1 See ante, ^ 38, note ; post, § 48 ; Johns v. Johns, 29 Ga. 718. 2 Walker v. Walker, 2 Phillim. 153. s Post, § 49. * Betcher v. Batcher, cited 2 Phillim. 155. 5 Smyth V. Smyth, 4 Hag. Ec. 509, 514. f « Wood V. Wood, 2 Paige, lOS ; Angle v. Angle, 1 Robertson, 634, 640, 641 ; Dance v. Dance, 1 Hag. Ec. 794, note, 3 Eng. Ec. 341 ; Westmeath v. Westmeath, 2 Hag. Ec Supp. 1, 4 Eng. Ec. 238,- 290; Tnrton v. Turton, 3 Hag. Ec. 338, 350, 5 Eng. Ec. 130 ; Walker v. Walker, 2 Phillim. 153, 156 ; Bowie v. Bowie, 3 Md. Ch. 51 ; Gardner v. Gardner, 2 Gray, 434, 441 ; Armstrong r. Armstrong, 32 Missis. 279, 290, 298 ; 1 Fras. Dom. Bel. 667. [37] § 50 THE DEFENCES. [BOOK I. " A. woman," says Lord Stowell, " has not the same control over her husband, has not the same guard over his honor, has not the same means to enforce the matrimonial vow ; his guilt is not of the same consequence to her; therefore the rule of condonation is held more laxly against the wife." ^ " It is not improper," he remarks in another case, " she should for a time show a patient forbearance ; she may find a diffi- culty either in quitting his house or withdrawing from his bed. The husband, on the other hand, cannot be compelled to the bed of his wife ; a woman may submit to necessity. It is too hard to term submission mere hypocrisy. It may be a weakness, pardonable in many circumstances." ^ But this discrimination in favor of the wife will not be carried to extremes ; neither will it be applied to cases in which the reason whereon, as a general doctrine, it rests, does not exist. It will not, therefore, justify the wife in living in the same house with her husband's concubine, sharing the turpitude of his crime, partaking of a polluted bed.^ And it has been considered, in Scotland, with much apparent reason, that, if the wife is living beyond the influence of the husband, as with her father or brother, the same circumstances which would show a condonation by him, will show a like condo- nation by her.* In accordance also with this enlightened view, Lord Stowell, in an English case, said : " It is mate- rial to observe, how the return to cohabitation was brought about ; as it will weigh, whether there was a condonation, and what was the effect." ^ § 50 [369]. Cruelty may be the subject of condonation, as 1 D'AguUar v. D'Aguilar, 1 Hag. Ec. 733, 3 Eng. Ec. 329, 337. 2 Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ec. 338, 341. See also Delliber v. Delliber, 9 Conn. 233. And see remarks of Lord Meadowbank, in Greenhill v. Ford, cited 1 Eras. Dom. Eel. 667 ; and of Sir John NichoU, in Durant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310,'3l9. ' Kirkwall v. Kirkwall, 2 Hag. Con. 277 ; ante, § 23, note. * Lothian on Consist Law, 163 ; 1 Eras. Dom. Rel. 668. See Bowie v. Bowie, 3 Md. Ch. 51. 5 D'Aguilar v. D'Aguilar, 1 Hag. Ec. 773, 781, 3 Eng. Ec. 329, 334. And see ante, § 48. [38] CHAP. IV.] CONDONATION. § 51 well as adultery ; ^ " and though," says Dr. Lushington, " in questions of condonation, I have almost uniformly found the same doctrine attempted to be applied to condonation both of adultery and cruelty, still I think the two offences are so distinct in their nature, that the same considerations cannot be equally applicable to both." ^ The acts of cruelty, with the means of proving them, are generally, not necessarily, known as they occur ; and in almost every instance the cruelty consists, not in a single act, revealed at once, like adultery, but in " successive acts of ill-treatment at least, if not of personal injury ; so that something of a condonation of earlier ill-treatment must in such cases necessarily take place." ^ To hold, therefore, the doctrine strictly, as in adul- tery, might operate severely and unjustly. § 51 [370]. It has been apparently laid down in Massa- chusetts* and Pennsylvania,^ that the doctrine of condona- tion, at least the presumption of condonation arising from cohabitation, is inapplicable, as against the wife, to causes of cruelty. This exception, unknown in England, is not gen- erally allowed in the United States ; ^ and the cases which recognize it appear not to have proceeded upon any exten- sive or well-considered view of the subject.'^ Indeed, the Massachusetts eourt, in a very late decision, expressly as- serted the applicability of the doctrine in these circumstances ; 1 Burr V. Burr, 10 Paige, 20; Whispel v. Whispel, 4 Barb. 217; Barnes v. Barnes, Wright, 475 ; Questel v. Questel, Wright, 491 ; McDwire v. McDwire, Wright, 354; Threewits a. Threewits, 4 Des. 560 ; Masten v. Hasten, 15 N. H. 159, 160; Wright v. Wright, 3 Texas, 168, 187. ^ Snow u. Snow, 2 Notes Cas. Supp. 1, 15. ' Sir John Nicholl, in Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290 ; Fras. Dom. Eel. 462. ^ * Perkins ». Perlcins, 6 Mass. 69. 5 HoUister v. HoUister, 6 Ban*, 449. See Tiffin v. Tiffin, 2 Binn. 202 ; Mc- Karracher v. McKarracher, 3 Yeates, 56. ^ See cases cited ante, § 50. ' This, however, is the doctrine of the Scotch courts ; and, in Scott y. Camp- bell, the Commissaries sustained the following view of the matter, as a sufficient answer to a plea of condonation founded on cohabitation : " Separation' from bed [39] § 62 THE DEFENCES. [BOOK I. overruling, if overruling were necessary, the former adjudica- tion.^ Still, there are reasons which should lead the courts to apply the doctrine of condonation, in cases of cruelty, with great caution, and with a view to its equity, rather than its strict letter. The peculiar nature of the offence of cruelty, as generally witnessed, developing itself by degrees, and so slowly as seldom to reveal even to the sufferer the precise line between the endurable and the unendurable ; the difficulty a wife experiences in making up her mind, in a single hour or day, whether she can longer bear her burden ; the fact, that often she cannot herself know certainly, and at once, whether or not she is in bodily peril, which is the true criterion of legal cruelty, and, that while in suspense she must continue the cohabitation, — should lead to great caution in inferring, against her, condonation of cruelty, from subsequent cohabi- tation.^ § 52 [371]. Until the wife has determined to leave her husband, and cast herself on her legal rights, she should use the means best adapted to reclaim him. And Lord Stowell * has laid it down, and Dr. Lushington has confirmed what and board, upon the head of maltreatment, was, for the most part, founded on the multiplicity and renewing the acts of maltreatment, and therefore the continuing of cohabitation was never a good defence against this separation ; for one act or two might not be sufficient, and yet a complication was, because it demonstrated a con- tinuance of the malevolous mind, and therefore these- acts of maltreatment were always conjoined, thongh there be an interim cohabitation in hopes of amendment ; and, if it were not so, there could be almost no separations on the head of mal- treatment, for, the acts consisting in -■ tract, it necessarily supposed an interim cohabitation, and was very different from the case of divorce on the head of adul- tery ; because there one act is violatio Jidei conjugalis, and therefore cohabitation, after knowledge thereof, was understood to be a tacit remission ; which was very different from maltreatment." 1 Fras. Dom. Eel. 462 ; Macfarlane v. Macfarlane, 11 Scotch Sess. Cas; n. s. 533. But in Scotland, condonations are not conditional, as in the English law ; 1 Fras. Dom. Eel. 668 ; whence the necessity of the fore- going doctrine. 1 Gardner r. Gardner, 2 Gray, 434, 441. '^ " The last drop makes the cup of bitterness overflow." Lord Jeffrey in Mac- farlane V. Macfarlane, 11 Scotch Sess. Cas. N. s. 533. 8 D'Aguilar v. D'Aguilar, 1 Hag. Be. 773, 781, 3 Eng. Ec. 329. [40] CHAP. IV.] CONDONATION. § 52 he said,^ that patient endurance of ill-treatment is not only no bar to a wife's suit, but raises no presumption against the truth of her complaint. The latter of these judges ob- serves, that " connubial cohabitation, after the last act of cruelty, is not necessarily and universally a bar, as condo- nation, to a wife's suit ; even though such cohabitation may be, in one sense, a voluntary cohabitation, or may not be forced or fraudulently brought about by the husband " ; and that " whether such connubial intercourse shall operate as a bar must depend on all the circumstances of each indi- vidual case." And where the parties were in a foreign country, and the wife, under the peculiar circumstances, con- tinued her usual cohabitation with her husband for several days after his last act of cruelty, she was held not to be barred thereby .^ A late case even intimates, that, if a wife leaves her native country with her husband and children, for the purpose of avoiding a separation from the children, and preventing their being left unprotected and alone in the hands of a cruel father, this continued cohabitation will not amount to condonation.^ But the court, in the former of the two cases last mentioned, carefully abstained from making any intimation that the same lenient doctrine could be applied to adultery. There is a late Alabama case, going the extreme length of holding, that a vdfe, complaining of a gross act of cruelty, was not barred, though she had continued the co- habitation two years ; * but evidently the circumstances of such a case must be very peculiar, to accord with the general doctrine elsewhere.^ 1 Snow u. Snow, 2 Notes Cas. 1, 16. ^ Snow v. Snow, sapra ; s. p. in Popkin v. Popkin, 1 Hag. Ec. 765, where, under different circumstances, a cohabitation which continued from early in De- cember to the 6th of January was held not to bar the wife ; s. p. also, Dysart ■». Dysart, 1 Robertson, 106, 139, 541 ; Whispell v. Whispell, 4 Barb. 217. ' Cnrtis V. Curtis, 1 Swab. & T. 192, 200. * Reese v. Reese, 23 Ala. 785. 5 See Bowie v. Bowie, 3 Md. Ch. 51 ; Gardner v. Gardner, 2 Gray, 434. [41J § 54 THE DEFENCES. [BOOK I. III. Tlie Conditional Quality of the Condoning Act. § 53 [371 a]. Condonation is not absolute remission ; but, proceeding on tlie idea of repentance having sprung up in the mind of the delinquent, it is not operative in a case where subsequent facts show no repentance to have existed. Hence comes what is called the conditional quality of con- donation. The condition has been matter of some differences of judicial opinion, as to its precise limitations ; but the doctrine which seems best established, as one alike of reason and authority, is this, — that the original offence is revived, the condition being violated, if the party forgiven does not both abstain from the commission of the like offence after- ward, and moreover treat the forgiving party, in all respects, with conjugal kindness.-^ The differences of opinion, among judges and lawyers, relate to the latter branch of this prop- osition. § 54 [372]. As late as the year 1825, the precise limitation of the condition seems to have been open, in England, to some doubt ; therefore when the case of Durant v. Durant ^ was argued before Sir John NichoU, he invited the atten- tion of counsel to this point. The view ultimately taken of the evidence rendered unnecessary any absolute decision of the question of doubt ; namely, whether ill-treatment, not amounting to legal cruelty, would revive condoned adultery. In this case the particular ill-treatment consisted in making a false accusation of adultery against the wife, and turning her off. The accomplished judge leaned strongly to the opinion, that the condoned adultery was revived, and said : " Some propositions seem to be admitted ; first, that condo- nation is accompanied with an implied condition ; secondly, that the condition implied is that the injury shall not be 1 And see Davis v. Davis, 19 HI. 334. ' Durant v. Dui-ant, 1 Hag. Ec. 733, 3 Eng. Ec. 310. [42] CHAP. IV.] CONDONATION. § 55 repeated; thirdly, that a repetition, at least of the same injury, does away the condonation, and revives the former injury. So far the propositions are clear; but must the injury be of the same sort, be proved in the same clear man- ner, be sufficient per se to found a separation ? § 65 [373]. "If nothing," he continued, "but clear proof of actual adultery will do away condonation of adultery, the rule of revival becomes nearly useless; for the revival is unnecessary. The only possible way in which the former adultery could bear, would be in, possibly, inducing the court to give some slight additional alimony ; but it could not bear, even in that way, when the suit is brought by the hus- band ; in which case, of course, there would be no question of permanent alimony. It appears, therefore, hardly to be consistent with common sense, that clear proof of an actual fact of subsequent adultery should be necessary to remove the bar ; something short should be sufficient, and it seemed almost admitted, though no direct authority was adduced in support of the position, that solicitation of chastity would remove the efifect of condonation of adultery;^ but still it was maintained, that it must be ' an injury ejusdem generis. ' It is difficult to accede to the good sense even of that prin- ciple ; or to suppose that the implied condition, upon which the forgiveness takes place, could be : ' You may treat me with every degree of insult and harshness, nay, with actual cruelty, and I bar myself from all remedy for your profligate adultery, only do not again commit adultery or anything tending to adultery ' ; the result of the argument is, that this must be supposed to be the condition implied when the con- donation of adultery takes place. The plainer reason, and the good sense of the implied condition, is, that 'you shall not only abstain from adultery, but shall in future treat me, in every respect treat me, (to use the words of the law,)with conjugal kindness. On this condition I will overlook the past injuries you have done me.' This principle, however, does 1 See Snow v. Snow, 2 Notes Cas. Supp. 1, 14. [43] § 56 THE DEFENCES. [BOOK I. not rest wholly on its own apparent good sense, but the court has authority to support it." And he showed, that, as far back at least as 1730, facts of cruelty were clearly held to revive condoned adultery,^ even though insufficient in intensity to support an original suit on the ground of cruelty.^ § 56 [374]. Dr. Lushington, in a subsequent case, ob- served : " I take it to be acknowledged law, as laid down by the learned Dean of the Arches in Duraut v. Durant, that cruelty, to revive condoned adultery, may be less violent in degree, and less stringent in proof, than when it forms the original charge. In my view, that principle is quite con- sistent with reason ; I subscribe to it, not only from deference to the superior court, but because I feel it to be most con- sonant to justice." ^ Sir John NichoU had already, in a case two years later than the one of Durant v. Durant, confirmed all he had said in it upon the subject, and without hesitation or qualification defined the condition attached by the law to condonation to be, that the suifering party shall thereafter be treated with conjugal kindness.* We may therefore deem this the settled English doctrine ; ^ and Chancellor Walworth was justified substantially, though his words were not liter- ally correct, when he said : " The English courts have held, that, to revive condoned adultery, it was not necessary that the new injury should be of the same nature ; but that cru- elty, desertion, or other improper conduct of the husband towards the wife, was sufficient." ^ 1 Worsley v. Worsley, 2 Lee, 572, cited 1 Hag. Eo. 734, 762, 764, 3 Eng. Ec. 311, 324. And see Eldved v. Eldred, 2 Curt. Ec. 376, 7 Eng. Ec. 144, 148. And see cases cited post, § 56. ' Durant v. Durant, 1 Hag. Ec. 733, 761, 3 Eng. Ec. 310, 323 ;'D'Agnilar v. D'Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329. ' Bramwell v. Bramwell, 3 Hag. Ec. 618. * Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290. ^ It is so laid down in Waddilove's Digest, p. 44, referring to Durant v. Durant, 1 Hag. Ec. 745, 761 ; Ferrers v. Eerrers, 1 Hag. Con. 130; D'Aguilar v. D'Agui- lar, 1 Hag. Ec. 781 ; Snow v. Snow, 2 Notes Cas. Supp. 1, 10. ' Johnson v. Jolinson, 4 Paige, 460. Of the same opinion, as to the English [44] CHAP. IV.] CONDONATION. § 57 •§ 57 [375]. In New York and several of our other States, adultery is ground of divorce from the bond of matrimony ; cruelty, of separation only from bed and board. And the question has been made, whether, in these States, cruelty, or other conduct of a like legal tendency, will revive condoned adultery. If, by the English doctrine, imported into the United States, any conjugal unkindness is sufficient, cruelty plainly must be ; for, though our law inflicts a heavier penalty upon adultery than the English law used to do, it does not transform cruelty into conjugal kindness. Yet this question has caused embarrassment in New York, where still the English rule is admitted to be as above stated.^ The case in which the principal discussion rose is Johnson v. Johnson. It was a bill for divorce on the ground of the husband's adul- tery, which had been condoned ; but, to remove the effect of the condonation, the fact was shown on behalf of the wife, that, though there had been no subsequent adultery or even actual violence, yet the husband had totally neglected to at- tend to her comfort, had insulted her with opprobrious epithets and offensive language, and had otherwise pursued toward her a course of conduct calculated to wound her feel- ings and alienate her affections. Vice-Chancellor McCoun held, that the condoned adultery was thereby revived ; Chan- cellor Walworth, on appeal, reversed this decision ; the Court of Errors, on further appeal, reversed the decision of the Chancellor, confirming that of the Vice-Chancellor.^ In a doctrine, were the Vice-Chancellor, and, as far as appeared, all the members of the Court of Errors, in this case. 1 Edw. Ch. 439, 14 Wend. 637 ; s. p. Burr v. Burr, 10 Paige, 20, 34 ; Whispell v. "Whispell, 4 Barb. 217 ; Quincy v, Quincy, 10 N. H. 272 ; Phillips ». Phillips, 4 Blackf. 131, note; Langdon v. Langdon, 25 Vt. 678 ; 2 Greenl. Ev. § 53 ; 2 Kent Com. 101, note. 1 Ante, § 54. 2 Johnson v. Johnson, in the V. C. Court, 1 Edw. Ch. 439 ; in the Ch. Court, 4 Paige, 460 ; in the Court of Errors, 14 Wend. 637 ; Lockwood Reversed Cases, 141. The opinion of the Court of Errors was pronounced by Chief Justice Savage, and concuiTed in by Mr. Justice Nelson, and Senators Armstrong, Beckwith, Bishop, Cropsey, Griffin, Kemble, Lacey, MacDonald, and Willes. Senator Tracey gave a dissenting opinion, in which he was sustained by Senators Downing, Edmonds, Edwards, Eisk, Lansing, Mack, Maison, and Van Schaick. When the court came [45 § 58 THE DEFENCES. [BOOK I. later case, in which the wife had forgiven her husband's adultery, and after this forgiveness he had committed a felony, and was sentenced for it to prison, Vice-Chancellor McCoun, confirmed on appeal by Chancellor Walworth, held, that the adultery was revived.'' § 58 [376]. Where the subsequent acts are of the same nature with the former ones, savoring also of them, there is no difficulty of principle in maintaining, that less is required than would establish an original complaint; and, to this point, the authorities are quite clear. " It is held," says Lord Stowell, " that words of heat and passion, of incivility or re- proach, are not alone sufficient for an original cause ; nor harshness of behavior ; but I cannot but think their operation would be stronger in condonation. Words, otherwise of heat, receive a different interpretation, if, upon former occa- sions, they have been accompanied with acts ; if it is appar- ent that the party was in the habit of following up words with blows; and, on these grounds, I am of opinion much less is sufficient to destroy condonation than to found an original suit." ^ So any conduct, which, after a reconcilia- tion of the parties in a case of cruelty, creates reasonable apprehension of personal violence, will revive the condoned to settle the decree, Senator Kemble said he had given his vote on the ground, that he did not regard the condonation as suflSciently established in proof, and that, therefore, he had not considered the question of revival. The reporter, in a note, since confirmed by Chancellor Walworth (Burr v. Burr, 10 Paige, 20, 35 ; but see Whispell V. Whispell, 4 Barb. 217), drew the inference, from this fact, that the question was still open in New York ; but why, it does not appear, since, throwing out the vote of Ketable, for it could not be counted the other way, there would be left ten to nine. And Mr. Lockwood, in his Reversed Cases, p. 141, says : "We believe the profession consider the question very well settled by the opinion of Chief Justice Savage." 1 Hoffmire ». Hoffmire, 3 Edw. Ch. 173; Hofmire v. Hofmire, 7 Paige, 60. And see post, § 64. 2 D'Agnilar v. D'Aguilar, 1 Hag. Ec. 773, 3 Bng. Ec. 329, 335. And see Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290 ; Durant v, Durant, 1 Hag. Ec. 733, 3 Bng. Ec. 310, 327 ; Whispell v. Whispell, 4 Barb. 217 ; Burr v. Burr, 10 Paige, 20 ; Langdon v. Langdon, 25 Vt. 678 ; Harrison v. Harrison, 20 Ala. 629; Hughes ». Hughes, 19 Ala. 307; Webster t;. Webster, 23 Eng. L. & Eq. 216 ; Sopwith s.JSopwith, 2 Swab. & T. 160, 167. [46] CHAP. IV.] CONDONATION. § 58 cruelty ; ^ in fact, it is cruelty itself.^ The condonation having presumptively proceeded on evidence of a change of temper, acts which of themselves fall short of cruelty may plainly show that no change did take place; and, though not of themselves sufficient evidence of danger to the injured party, may make the danger apparent when connected with what went before.^ 1 Westmeath v. Westmeath, supra; Gardner v. Gardner, 2 Gray, 434, 442; Nogees v. Nogees, 7 Texas, 538 ; Wright v. Wright, 6 Texas, 3, 21. 2 Vol. I. 717, 729, 730. " Dr. Lushington, in considering the admissibility of a libel, made the following observations : " Has anything occurred since March, which can revive the cruelty alleged to have taken place previously ? Now this is a subject which has been dis- cussed over and over again, in this court, and on which it is very difficult to lay down any precise or general principles ; to revive condoned cruelty, there must be something of the same kind as would have supported a suit originally for cruelty, such as violence, or threats of violence ; but the acts need not be of the same strin- gent kind ; something short will be sufficient, provided it be shown, that the husband continues in the same state of mind, and as incapable of controlling himself, as when he actually committed the former acts of cruelty. Now, the eleventh and twelfth articles contain the charges of cruelty. The first averment in the eleventh article is, that the husband compelled the wife to sleep in a garret of his house, notwithstanding her lameness, arising from paralysis, while he himself slept sepa- rate and apart, in another room.' This charge, standing alone, is no act of cruelty of which this court can take notice ; this court cannot compel parties, man and wife, to sleep together in one and the same bed. Then it is alleged, ' that she is not permitted to enter any room in the house, except the parlor, in which she takes her meals.' Whether this is a measure of harshness or not, it is impossible for the court to say, unless all the circumstances are before it ; prima facie, this cannot come within the rules of cruelty as laid down in this court. Then it is alleged, ' that the meals provided for her are of an unwholesome nature, consisting of par- ticular meat, forbidden by the wife's medical attendants.' Now I must say this is a circumstance of a slight nature, which never yet found its way into a libel of cruelty. This court cannot investigate circumstances of this kind ; and, supposing them to be proved, they never could be held to constitute acts of cruelty. Then the libel goes on to allege, ' that the husband has frequently got drunk, and, when so, has abused his wife with gross appellations.' Mere intoxication, unless leading to personal violence, is no ground for a divorce ; no appellation, although gross and reprehensible, can give n legal ground for a separation. None of the matters al- leged in the eleventh article constitute a revival of cruelty ; assuming it to have been committed before the suit for restitution of conjugal rights. The twelfth article, after stating, in general terms, what is absolutely useless, ' that the husband continued his harsh and cruel behavior, as before the return of the wife ' — what this means I do not know; no evidence could be taken in such an article — goes on to allege, ' that the husband removed the wife's walking-stick or crutch ; that he [47] , § 60 THE DEFENCES. [BOOK I. § 59 [377]. On a like reason, suppose the husband in the habit of drinking to intoxication, and of abusing his wife in his fits of drunkenness ; and suppose the parties, after separa- tion, to be reconciled on his promise of leading a temperate life ; iu such a case, the wife might show his former abuse, in connection with its cause, and show, that, subsequently to the reconciliation, he was intoxicated, in aid of her proofs of subsequent cruelty. And it was remarked by Desaussure, J., that, " if a woman forgives ill-usage, and returns to her hus- band, on promises of good usage, she shall not afterwards obtain the protection and assistance of this court, if those promises have been faithfully kept, and she again leaves her husband from caprice ; but if there are clear indications of a breach of those promises, and some actual ill-usage, she is not bound to wait for extremities, as in the first instance, but may depart as soon as sh? finds the promises violated, and her husband returning to his old bad habits. She has a right to judge of the future by the. past ; and the court will con- nect the whole of his conduct, in order to form a correct judgment." ^ § 60 [378]. A case decided by the judicial committee of the Privy Council, in 1840, is briefly reported as follows : " Though a slighter offence (not a slight ofifence) will revive caused the windows of the parlor to be fastened and painted outside.' The first part is, I presume, meant to show that the wife is unable to make her escape ; the second part I do not see the relevancy of. Taking this statement to the fullest ex- tent, it only shows, that, during some parts of the months of June and July the wife was not permitted to leave the house ; this, standing alone, cannot revive former cruelty. I do not say, that, if the former cruelty had been of a different descrip- tion, if blows had been struck, and life put in danger, or threats approaching to im- mediate violence, that harshness of conduct may not amount to a revival of cruelty, although in another shape, and less likely to lead to actual commission. In this case there is not one act of cruelty ; there is no personal violence, no one threat ; nothing, in short, which the wife did not risk the peril of when she took upon her- self the yoke of matrimony. I reject this libel." Evans v. Evans, 7 Jur. 1046. Ante, § 51, note. See Eranklin v. Franklin, 7 Jur. 135; Curtis v. Curtis, 1 Swab. & T. 192 ; Bostook v. Bostock, 1 Swab. & T. 221. 1 Thrcewits v. Threewits, 4 Des. 560. See also Questel v. Questel, "Wright, 491 ; Calkins v. Long, 22 Barb. 97. [48] CHAP. IV.] CONDONATION. § 60 an offence condoned, and will, combined with it, operate as a ground of divorce ; still, the allegation of a subsequent offence will not so revive the former one as to render it admissible as a portion of the proofs, or as a corroboration of doubtful proofs, or as a complement to insufficient proofs, of the subsequent act."^ Now, if this is a correct state- ment of the case, and if the court intended to affirm that .evidence of the condoned and subsequent conduct cannot be viewed together, but that the condonation has opened a chasm not thus to be passed,^ we may find it difficult to reconcile the decision either with the foregoing principles, or with reason ; unless it proceeded on special circumstances, •as that the prior offence was of a nature different from the subsequent. It is not probable the learned tribunal intended to overrule the case, for example, of Turton v. Turton ; where, adultery having been committed by the husband with the wife's sister, and condoned by the wife ; and the sister having afterward lived in the same house with the husband and wife ; Dr. Lushington observed : " The cohabitation of the husband and the sister of his wife appears to have continued up to the commencement of the cause ; for I take it to be clear, that, according to the doctrine of this court, and according to all the principles in similar cases, if it can be once shown that the parties have been cohabiting in an illicit connection, it must be presumed, if they are still living under the same roof, that the criminal intercourse subsists, notwithstanding those who live under the same roof are not prepared to de- pose to that fact."^ Undoubtedly every condonation rests 1 Collett V. CoUett, 8 Monthly Law Mag. 158, Wadd. Dig. 44. The true con- straction of this language clearly is, to consider the particle "it" as referring, for its antecedent, to "offence condoned" and "former one" throughout; for if, in the second place where this particle occui-s, it is referred to " allegation," the entire period amounts to but an awkward affirmation of the truism, that one's own allega- tion is no part of his proofs. 2 That the prior and subsequent conduct may be looked at together, see Sinton V. Irvine, 11 Scotch Sess. Cas. 402; Keg v. Dunn, 12 Ad. & E. 599, 619. And see French v. French, 14 Gray, 186, 188. 3 Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130, 136 ; Smith v. Smith, 4 Paige, 432. VOL. II. 4 [ 49 ] § 61 THE DEFENCES. [BOOK I. on the idea of the condoning party having had evidence of reformation in the other ; ^ whence it would be unreasonable, under many circumstances, to connect the prior misconduct with the subsequent, in aid of proof of the subsequent, with- out something to show the revival of the old intent, or to rebut the presumption of a change of intent, growing out of the condonation. • § 61 [379]. There appears to be some foundation for the doctrine, not established by any direct adjudication, that an offence may be so obliterated by forgiveness as not to admit of revival. Thus, in Dysart v. Dysart, Dr. Lushington said : " I must inquire, whether any one in particular, or all united, of the transactions I have examined, demand from the court a separation. Will the occurrence at Irnham, in 1824, proved by one witness, and condoned for thirteen years, — condoned by acts without number, by a long series of conduct which denotes a total oblivion, an entire forgiveness of it in every step taken, a conduct wholly inconsistent with a fear, or even apprehension, of repetition ? I doubt the doctrine of revival applying to such a case at all." ^ If we allow this exception to the general doctrine of condonation, we surely shall not be able to find for it any satisfactory foundation of x'eason. Because, when forgiveness passes once, all passes which re- sults from forgiveness under the circumstances existing ; and, when the act of forgiveness is repeated under the like circum- stances, nothing can pass with the act except what would have passed if it were an original forgiveness. Parties co- habiting forgive daily by the very cohabitation, yet what is done on the one hundredth or one thousandth day is only what is done the first day. If the condonation on the thousandth day is without condition, equally must it be on the first; if on the first it is with condition, so must it be on the thousandth. . 1 Ante, Another ground was, that the wife then contended, that by her husband's delinquency she had a right to be released from the marriage tie ; whereas here she is seeking to enforce it." ^ If in our States, it is submitted, the rule referred to by this learned person, whereby the suit can ordinarily be brought only in the State in which the complaining party resides, were not established by statutes, the same result as to the wife's power to have a separate domicile would still follow from the other principle mentioned in the foregoing extract. In this view, the distinction seems both plain and just. If a husband deserts his wife and establishes thereupon a new domicile, while the wife remains behind, then, if she sues for a divorce by reason of the desertion, the burden of her complaint is, that he refused, alike in the domicile in which I Yelverton v. Yelverton, 1 Swab. & T. 574, 591. [107] § 131 THE LOCALITY. [BOOK IL the suit is brought, and in the domicile to which he removed, to extend to her the matrimonial consortium; wherefore she was justified in remaining where she was, or in seeking a new domicile, at her election. If she establishes the allega- tion, she succeeds in her case ; if she does not, she fails. But in the suit for the restitution of conjugal rights, no such issue is presented. There appears merely the fact of the parties not living together, coupled with a prayer for cohab- itation. For example, there may have been a separation under articles, — a case in "which, as we have seen,^ there is no separate domicile acquired ; yet the articles are no bar to this suit,2 while they would be a bar to the divorce suit for desertion.^ § 131. "Whether the English tribunal in which the distinc- tion mentioned in the last section was drawn will follow the American rule in cases in which it is applicable, is matter upon which the writer is not able to speak with certainty. In the very case under consideration the judge observed : " I have already stated, that, in my opinion, she [the wife] could not, as a married woman, acquire a domicile recognized by the law other than that of her husband,"* — words, how- ever, which do not necessarily conclude the point.^ In a later case it appeared, that, after a separation under articles in England, the husband removed to the United States, where he became domiciled, and, in the place of this his new domicile, committed adultery and bigamy. The wife, remaining in England, sued him there for a divorce a vinculo, and had her prayer allowed. It was a case heard before the full court; and here, upon the facts as thus stated, we seem to have the American doctrine fully recognized ; for surely, an American lawyer would say, an English tribunal would not take jurisdiction of a divorce cause wliere neither of the parties was domiciled in England. But when we look into 1 Ante, H29. " Vol. I. § 634, 786, 806. » Vol.L§ 783. * Yelverton ». Yelverton, 1 Swab. & T. 574, 591. ^ Vol. I. § 63. [108] CHAP. IX.] WIFE'S DOMICILE. § 131 the case, we find the following language held by the Judge Ordinary, speaking for himself and the rest : " Both parties were natural-born English subjects ; both, therefore, owed allegiance to the crown of England, and obedience to the laws of England ; that allegiance cannot be shaken off by a change of domicile ; the husband, therefore, although he be- came domiciled in America, continued liable to be affected by the laws of his native country." And upon this groxind, without any allusion to the other, the case went to judg- ment.^ Who shall say, that the doctrine of perpetual alle- giance is ever to die in England, while the soil remains ? 1 Deck V. Deck, 2 Swab. & T. 90, 92. And see Bond v. Bond, 2 Swab. & T. 93 ; Zycklinski v. Zycklinski, 2 Swab. & T. 420 ; Palmer v. Palmer, 1 Swab. & T. 5.51 ; Simonin v. Mallac, 2 Swab. & T. 67. [109] CHAPTER X. THE GENERAL DOCTRINE AS TO THE LOCALITY IN WHICH THE SUIT TO DISSOLVE THE MARRIAGE IS MAINTAINABLE. , § 132. It is not proposed to discuss, in this chapter, the question under what circumstances courts, by direction of particular statutes, will take jurisdiction to grant divorces in our several States. This matter will be examined in brief in a subsequent chapter. What is here to be considered is, under what circumstances do the principles of our inter-State law, and of private international law generally, require tlio jurisdiction to be assumed or declined, when the divorce sought for is from the bond of matrimony. And it is to be observed, that, in cases in which the jurisdiction is improp- erly taken, the divorce, when decreed, will be deemed a nullity in other States and countries ; because, according to a well-known principle pervading our international and inter- State jurisprudence, when a jurisdiction is assumed which, according to just international and inter-State doctrine, does not belong to the tribunal assuming it, even though the tri- bunal does act under the express direction of a statute, its judgment is everywhere else to be hold as null. The late Chief Justice Marshall, speaking for the United States Su- preme Court, expressed, in one case, the doctrine in the following terms : " Of its own jurisdiction, so far as depends on municipal rules, the court of a foreign nation must judge, and its decision must be respected. But if it exercises a jurisdiction which, according to the law of nations, its sov- ereign could not confer, however available its sentences may be within the dominion of the prince from whom the author- ity is derived, they are not regarded by foreign courts. This [110] CHAP. X.] THE GENERAL DOCTRINE. § 134 distinction is taken upon this principle, that the law of nations is the law of all tribunals in the society of nations, and is supposed to be equally understood by all."^ § 133. The distinctions upon this subject may be other- wise expressed thus : If the tribunal assuming a jurisdiction had no authority to act in the premises according to the law of the country in which the tribunal sits, its judgment will be a nullity equally at home and abroad, even though there should be no objection to its jurisdiction on principles of international law. On the other hand, if the tribunal had, by the law of the country in which it sits, a jurisdiction to act in the premises, its judgment until reversed will be. bind- ing at home, whether it is binding abroad or not. It will be binding or not binding abroad, — that is, if binding, it will be so to the extent to which the courts abroad give validity to the class of foreign judgments to wiiich it belongs, be this extent greater or less, — according as the jurisdiction was competent to the court or not, on principles of international law.^ § 134 [714]. We shall have occasion, in a chapter further on in this volume, to consider the effect, at home and abroad, of sentences of divorce and the liiie, rendered in cases wherein the jurisdiction of the tribunal rendering them is conceded. According to the doctrine there to be laid down, a sentence of divorce or of nullity, pronounced by a competent court, having jurisdiction of the subject-matter, iu one country, is binding upon the courts of every other country. Tlie quali- 1 Rose V. Himely, 4 Cranch, 241, 276, 277. '■^ I have not attempted to state the matter in the text in the language of any of the cases ; but the following, among others, may be consulted : Davis ». Smith, 5 Ga. 274 ; Pearson v. Darrington, 32 Ala. 227 ; Hickey v. Stewart, 3 How. U. S. 750; Stoughton v. Mott, 13 Vt. 175; Cheriot v. Foussat, 3 Binn. 220; Wyman B. Campbell, 6 Port. 219; Georgia Railroad & Banking Co. v. Harris, 5 Ga. 527 i Camden v. Mulford, 2 Dutcher, 49 ; Martin v. Carron, 2 Duteher, 228 ; Carron ». Martin, 2 Dutcher, 594 ; United States v. Yates, 6 How. U. S. 605 ; Flowers v. Foreman, 23 How. U. S. 132 ; Wyatt v. Judge, 7 Port. 37 ; Stamps v. Newton, 3 How. Missis. 34 ; Bostwick v. Perkins, 4 Ga. 47. [Ill] § 135 THE LOCALITY. [BOOK II. ficatioa to be introduced to the general proposition is, as thus intimated, that, for the judgment to have any efficacy abroad, the tribunal rendering it must have authority over the question as it relates to the particular parties. And the authority must not only have been given by the law of the particular country in which the court sits, but it must also be an authority harmonious with the doctrines of international jurisprudence. The cases in which this matter has principally arisen are where sentence has been pro- nounced dissolving a marriage for an offence committed sub- sequently to its celebration. Ordinarily a judicial tribunal will give effect to a foreign matrimonial judgment, rendered under circumstances in which it would itself interfere in behalf of parties similarly situated.^ Yet if the courts of a foreign state, under command of a statute, take jurisdiction to dissolve a marriage where they have no rightful authority over the cause, their judgment will be disregarded by the domestic tribunals, notwithstanding a similar statute at home would have compelled the latter to proceed in the same manner, under like circumstances.^ Obviously, how- ever, so illiberal a doctrine should be acted upon only in extreme cases. § 135 [715]. Let it, on the other hand, be borne in mind, that, to determine whether a foreign tribunal rightfully took jurisdiction over a cause of divorce, the method is not to inquire, whether the local jurisprudence of our own country gives the same jurisdiction ; because numberless technical obstacles there are, in particular States and countries, of which the international law takes no cognizance. For ex- ample, if the constitution of the English ecclesiastical tri- bunals, wherein all divorce causes were heard anterior to the year 1858, and the statutes of England governing the Eccle- siastical Courts, forbid the citation of any defendant out of his diocese ; while a particular defendant, domiciled abroad. 1 Harding v. Aldcn, 9 Gieenl. 140, 147; Cooper i;. Cooper, 7 Ohio, 238. 2 Irby V. Wilson, 1 Dev. & Bat. Eq. 568, 581. [112] CHAP. X.] THE GENERAL DOCTRINE. § 137 belongs to no diocese within the kingdom ; this might per- haps have been an insuperable obstacle to those tribunals practically exercising the jurisdiction,^ — a matter, however, which does not apply to the present divorce court under the statutes now existing, — but the consequence by no means follows, that the jurisdiction was not properly in those courts, and that, if the technical difficulty were removed, their judg- ment iu such a case would not be entitled to credit in other countries. So in most of the American States, it is necessary under statutes for the plaintiff to have resided in the State a specified number of years, before bringing his suit for divorce ; but it does not follow, that a decree pronounced abroad where such previous residence is not required, would not receive full faith and credit in those States where it is. These statutory provisions need not here be discussed ; our object being to determine when there is a proper jurisdiction without reference to statutes. § 136 [716]. Still the foregoing views only lead us again to the proposition, that, whenever a tribunal is unencumbered by specific statutory direction, it should take or decline the jurisdiction over a matrimonial offence, made by the law of the State ground of divorce, according as the circumstances are such as to render the judgment it may pronounce dis- solving the marriage good in other countries, or not good in them, under a true construction of the international law on this subject.^ Therefore in the following sections we shall treat of these two branches of the doctrine as one ; bearing in mind, that we are not considering technical difficulties, under particular local statutes, so much as considering the general and international law on the subject. § 137 [717]. With these preliminary observations, we come to the subject of our inquiries, namely. What are the circumstances which give a court rightful jurisdiction 1 See post, § 158 and note. 2 See, for a discussion of the principle here involved, Vol. I. § 348 et seq., throagh a considerable part of the chapter. VOL. II. 8 [113] § 137 THE LOCALITY. [BOOK IL over a cause of divorce ? This is a question, in some of its branches, of considerable obscurity and conflict in the au- thorities; but, as we approach it, we are furnished with a key which we shall find, as we proceed, will unlock most of its difliculties, and enable us to pass freely through its intri- cacies and partially illumined ways. It is, to use the lan- guage of Taney, C. J., of the Supreme Court of the United States, that, " every State has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory." ^ The proposition indeed, as laid down by the learned judge, was applied, as the facts of the case show, only to our inter-State, and State-and-national, jurisprudence, and to the single status of slavery ; but it admits equally of the broader application given to it in these pages. Mr. Burge has expressed the same thing in similar language. He says, the status of persous is " conferred by the laws of the domicile " ; and, within this principle, he in terms includes marriage, in respect both to its institution and dissolution ; ^ though we have seen,^ that to its institution there are qualifications applicable which do not apply to its dissolution. " Each state," he says in another place, " pos- sesses the power of regulating the enjoyment and transfer of property situated in its territory ; and of defining- the civil rights and capacities of those who may become its subjects by birth, by acquired domicile, or even by temporary residence." * This doctrine results necessarily from the familiar and well- settled principle of international law, that each nation has an exclusive sovereignty within its own territory ; ^ which 1 Strader v. Graham, 10 How. U. S. 82. 2 Burge Col. & For. Laws, 57, 58. 8 Vol. I. ^ 351 -353. * 1 lb. 2. " In the opinion of the greater number of jurists, the law of the actual domicile, and not that of Dorsey -e. Dorsey, 7 Watts, 349, 351 ; s. p. by Walker, J., in Thompson t. The State, 28 Ala. 12, 16. [171] § 198 THE LOCALITY. - [BOOK U. could not, by repairing to Scotland, shake off the disabilities imposed upon them by the English law ; and yet such mar- riages are held valid in England to all intents and purposes. The principle of allegiance here referred to applies to the immediate political relationship between the sovereign and the subject; and it seems to be a total misapprehension td suppose that it interferes in any way with questions of purely municipal law, unconnected with that point. The doctrine of the indissolubility of marriage, so far as it exists in England, is unquestionably derived from the canons of the Roman Church." ^ § 198 [760]. But the discussions under this head are rather matter of curiosity than of practical utility to the American reader ; since, whatever doubts may exist in England, the clear and settled doctrine in the United States holds tlie place of marriage to be altogether immaterial to the right of the courts to take jurisdiction over causes of divorce, or to the validity of the decree which dissolves the marriage.^ Lolley's case, whatever it establishes for England, 1 Hosack Confl. Laws, 265,. note. See ante, § 131. 2 Dorsey v. Dorsey, 7 Watts, 349 ; Toleu v. Tolen, 2 Blackf. 407 ; Clark ». Clark, 8 N. H. 21 ; Barber v. Root, 10 Mass. 260 ; Harteau v. Hartean, 14 Pick. 181 ; White v. White, 5 N. H. 476; Harrison v. Harrison, 19 Ala. 499; Thomp- son V. The State, 28 Ala. 12. It has, moreover, always teen customary in this coun- try to take jurisdiction in divorce suits without any reference to the country where the marriage was contracted ; and this right has not been questioned. The fol- lowing cases are illustrative : LangstafF v. LangstafF, Wright, 148 ; Maguire v. Maguire, 7 Dana, 181 ; Hesler v. Hesler, Wright, 210; Hansel v. Hansel, Wright, 212 ; Guembell v. Guembell, Wright, 226. There is, however, a South Carolina case, in which Dunkin, C, said : " In reference to a South Carolina marriage," no divorces being allowed in South Carolina, Vol. I. § 42, it has been often repeated, although never formally decided, that the doctrine of Lolley's case is the law of this State The argument seems irresistible, that, in such cases, the lex loci contractus, the law of the place where the marriage is celebrated, fur- nishes the just rule for interpretation of its obligations and rights, as it does in the case of other contracts. It can only be dissolved by the law under which it was formed, and by which both parties understood it to be governed." Hull v. Hull, 2 Strob. Eq. 174, 177, 178. And the same point has been since substantially adjudged in this State. Duke v. Fulmer, 5 Rich. Eq. 121. See also Wells v. Thompson, 13 Ala. 793. And see Harman v. Harman, 1 Cal. 215. [172] CHAP. XI.] SPECIFIC PKOPOSITIONS. § 199 is of a date too recent (1812) to have the force of authoi'ity here. And but for what has been said about this Lolley's case, since it was decided, we should be unable to draw from the brief reports we have of it any such doctrine as it has been assumed to contain. Suppose the judges did utter the words attributed to them in this case, they were words not called out by the facts ; the facts only showing a divorce without a domicile. And if all the foolish talk which has been made by wise judges while pronouncing their decisions, and transferred to the books of reports, were held to be law, our law would present a chaos wilder and more confounded than ever poet pictured, as having brooded over and dwelt in our earth, before God said, " Let there be light." § 199 [761]. Sixthly, The doctrines thus laid down in this chapter are not controlled by the provision in the United States Constitution against laws passed by the States im- pairing the obligation of contracts.^ This proposition clearly results from viewing marriage, not as a contract, but as a status. And aside from this view, it was well observed by the late Chief Justice Marshall, that " this provision of the Constitution never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a courc of justice. It never has been understood to restrict the gen- eral right of the legislature to legislate on the subject of divorces. Those acts enable some tribunal, not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other. When any State legisla- ture," he adds, " shall pass an act annulling all marriage contracts, or allowing either party to annul them without the consent of the other, it will be time enough to inquire, whether such an act be constitutional." And in the same case from which these observations are taken. Judge Story says : " A general law regulating divorces from the contract of marriage, like a law regulating remedies in other cases of 1 See Vol. I. § 665. [173] § 199 THE LOCALITY. [BOOK IL breaches of contracts, is not necessarily a law impairing the obligation of such a contract. It may be the only effectual mode of enforcing the obligations of the contract, on both sides. A law punishing a breach of a contract by imposing a forfeiture of the rights acquired under it, or dissolving it because the mutual obligations were no longer observed, is in no correct sense a law impairing the obligations of the coa- tract." 1 And this general view has received the sanction of other judicial authority. The more solid opinion appears to be, that marriage is not included at all in this constitutional provision.^ This question, in another aspect, came under our review in the first volume.^ ' Dartmouth College v. Woodward, 4 Wheat. 518, 629, 695. ^ Tolen V. Tolen, 2 Blackf. 407; Maguire v. Maguire, 7 Dana, 181; Berthe- lemy v. Johnson, 3 B. Monr. 90; Opinion of the S. J. Court of Maine, 16 Maine, 481 ; Starr c. Pease, 8 Conn. 541 ; Jones v. Jones, 2 Tenn. 2 ; Bingham v. Miller, 17 Ohio, 445, 447; Levins ». Sleator, 2 Greene, Iowa, 604; Noel v. Ewing, 9 Ind, 37 ; and see Leith v. Leith, 39 N. H. 20. 5 Vol. I. § 665 et seq. [174] CHAPTER XII. THE DIVORCE PROM BED AND BOARD, AND THE DECREE FOB ALIMONY. § 200. The doctrines considered in the last two chapters relate principally to the divorce from the bond of matrimony. We saw, indeed, that, under some circumstances in which a court is authorized, on general principles of jurisprudence, to take a jurisdiction to decree a divorce from the bond of mat- rimony, it has not the jurisdiction to go beyond this decree and grant alimony, or anything in the nature of alimony, or make any order personally binding upon the opposite party who may be dwelling in another country.^ Let us consider a few points connected with the general subject mentioned in the title of this chapter ; requesting the reader, that, as re- gards the more full doctrine, he will consult the foregoing chapters in connection with this one. § 201 [762]. We have already seen,^ that, while the Eng- lish courts appear to entertain some views which to us would seem unsound concerning the indissolubility by a for- eign sentence of an English marriage, they deem the divorce a mensd et thoro to be grautable by themselves, wherever the marriage was celebrated. A fortiori, this is the American doctrine. On the point of the authority to take jurisdiction when the defendant is domiciled in a foreign country, and so the citation cannot be served on him personally, — though the authority exists in respect of divorces dissolving the mar- riage, probably the rule is otherwise where the divorce sought 1 Ante, S 169, 170. s Ante, ^ 180 and note. [175] § 201 THE LOCALITY. [BOOK IL is from bed and board. For in the first place, the latter di- vorce from an absent party would do the applicant no good, unless by way of suing on the decree in the foreign country, to recover the alimony ordered. In the foreign country also, the decree could have no operation, except as a foundation for such a suit, the whole effect of which suit is to collect money ; and, if no jurisdictioq of the defendant was bad, sufficient to sustain a judgment ih a suit on an ordinary contract, probably the foreign tribunals would refuse to give this judgment any effect whatever. And it is presumed this would be so even as between the States of this Union ; not- withstanding the provision, in the United States Constitution, about the judgments of the courts of the States having a binding force in States other than those in which they were rendered.^ For it is familiar doctrine, to the support of which it is not necessary here to cite authorities, that, in an ordinary personal suit against a party for the recovery of money and the like, if the defendant has no legal notice of the suit, such as is proper for domestic defendants to receive in such actions, and if he does not appear and contest the claim, the judgment, though it may be rendered under a law requiring its rendition, is not a judgment binding upon the defendant, either on general principles of international jurisprudence, or under the Constitution of the United States. In the next place, the divorce a mensd et thoro appears prop- erly to determine no question of status, the parties being married parties after the divorce the same as before ; so the government has no sufficient interest in this suit, under these circumstances, to sustain it in opposition to general prin- ciples, as to jurisdiction between parties. Even the question of the legitimacy of the children, which is primd facie affected by a divorce of this kind, seems- not to be important here ; for the fact of the husband residing abroad would alone be practically the same in the courts, on this question, as a divorce from bed and board.^ 1 And see Vol. L § 693 ; ante, §169, 170. " Vol. L 447 -449, 546-549. [176] CHAP. XII.] FROM BED AND BOARD. § 202 § 202 [763]. But the suggestions of the last section are based principally on the mere reason of the thing ; for adju- dication has shed little light on the question. Yet suppose, in a case where both the parties reside in the same country, a divorce from bed and board is regularly pronounced, on due contestation, in the proper court of their domicile, the defendant appearing and answering to the suit, and after- ward they remove to another state or country, — there is room for doubt what precise effect even this divorce will have in the latter locality. And so in respect to the decree for alimony ; especially upon such a divorce. If tlie tribunals of the new domicile can take notice of even any part of the foreign decree, as perhaps they can of the whole of it, in what form of proceeding is this to be done ? Such an adju- dication has, in the court where it was rendered, no more than a sort of interlocutory force ; but how in, for example, one of the United States, under the provisions of the national Constitution, assuming them to apply to the case, is a decree for divorce from bed and board and alimony, rendered in a sister State, to be carried into effect ? It seems to have been assumed that it may be, in some way.^ And in a late Ala- bama case, the doctrine was laid down, that a decree of alimony without divorce, pronounced in South Carolina, could be enforced in Alabama, for what was due, extending to the time a divorce was declared in Alabama ; not beyond.^ Likewise in Kentucky, where a husband had obtained in the courts a divorce a vinculo from his wife, and afterward both parties became citizens of Ohio, and the Ohio tribunal had given her, in a suit which the man defended, a portion of his estate under the name of alimony, it was held, that the Ken- tucky courts could enforce this decree.^ But this decree, the reader perceives, is a thing quite different from a decree of alimony proper. On the other hand, the Wisconsin court decided, that an action of debt will not lie upon a decree of divorce from bed and board and for alimony, duly entered 1 Borden v. Fitch, 15 Johns. 121 ^ Harrison v. Harrison, 20 Ala. 629. ^ Rogers v. Rogers, 15 B. Monr. 364. VOL. II. 12 [ 177 ] § 203 THE LOCALITY. [BOOK'iL up in another State ; and the court proceeded further to an- nounce the general doctrine, that the tribunal renderuig the decree could alone, in its own jurisdiction, compel its perform- ance ; it not being enforceable in a sister State.^ Whether the courts of the new domicile can entertain an original suit for separation, founded on the foreign decree, is a question not yet judicially discussed. In a recent Scotch case it was held, and confirmed on appeal by the House of Lords, that a divorce from bed and board in England, obtained by the wife for the husband's adultery, was no bar to her proceeding in Scotland for a divorce from the bond of matrimony on ac- count of the same adultery.^ § 203. In the Supreme Court of the United States it was by a majority of the court held, that, when a court of com- petent jurisdiction in one of the States decrees a divorce a mensd et thoro between husband and wife, and then the hus- band removes to another State, she remaining behind, the United States tribunal — the parties becoming thus citi- zens of different States — will take jurisdiction to hear her complaint for the enforcement of the payment, against the husband, of the alimony. The proceeding, which was sanctioned, was by bill in equity. Said Wayne, J. : " The parties to a cause for a divorce and for alimony are as much bound by a decree for both, which has been given by one of our State courts having jurisdiction of the subject-matter and over the parties, as the same parties would be if the decree had been given in the Ecclesiastical Court of England. The decree in both is a judgment of record, and will be received as such by other courts. And such a judgment or decree, rendered in any State of the United States, the court having jurisdiction, will be carried into judgment in any other State, to have there the same binding force that it has ^ Barber v. Barber, 1 Chanel. 280. And see Morton v. Morton, 4 Cush. .518; Clark c. Clark, 6 Watts & S. %5. '■i Geils V. Dickenson, 20 Eng. L. & Eq. 1, !.■) Scotch Sess. Cas. n. s. H. of L. 28; s. c. in House of Lords, Geils v. Geils, 1 Macq. Scotch Ap. Cas. 255. [178] CHAP. XII.] FROM BED AND BOAKD. § 204 in the State in wliicli it was originally given. For such a purpose, both the equity courts of the United States and the same courts of the States have jurisdiction." ^ But the question of the effect of the sentence, where the jurisdiction is admitted, is a matter wliich will come up for discussion in another connection. § 204. Wliere the question of the custody of a child was adjudicated in Maryland, on a suit for divorce brouglit by tlie husband against the wife, wherein the husband's prayer for a divorce was allowed, and the custody was given to the husband ; and afterward, the husband being temporarily with the child in Massachusetts, the wife attempted there by a habeas corpus to obtain its custody, — " Upon this state of facts," says the report, " the respondent contended, that, as by a decree of the court in Maryland, where he had his legal domicile, and which was therefore the legal domicile of the wife, the custody of the child had been given to him, this court could not obtain jurisdiction of tlie case simply by his being here with the child temporarily, on a visit which might be determined at any moment. The court held, how- ever, that a decree of any tribunal as to the custody of a child was never final, but tiiat the same tribunal or any other where the child was either temporarily or permanently staying, might consider the question upon the facts then ex- isting, and, looking at the welfare of the child, determine whether any and what change should be made in regard to its custody."^ This was a case before a singl(5 judge of the Supreme Judicial Court of Massachusetts, yet there is reasoni to believe that the conclusion is the same to which the whole court would have arrived ; and it is difficult to deny, that it should be accepted as just. Yet doubtless, under most circumstances, the foreign decree would be considered as entitled, on such a hearing, to considerable weight. 1 Barber v. Barber, 21 How. U. S. 582, 591. 2 Tliorndike ». Rice, 24 Law Reporter, 19, 20. [179] § 207 THE LOCALITY. [BOOK IL § 205. It seems to have been assumed in England, that, though the Scotch courts cannot dissolve the bonds of an English marriage in cases where the parties are not domi- ciled in Scotland, they may perhaps render a valid and binding sentence of divorce from bed and board .^ This proposition, if it is to be accepted as correct in its applica- tion to this country, does not carry the doctrine so far as to give the jurisdiction where, there still being no domicile, the court obtains no jurisdiction over either the person or the property of the defendant. There may be reasons why a court should take jurisdiction \ to compel a husband to ali- ment his wife, though neither husband nor wife is domiciled in the country, where the two are in the country for a tem- porary sojourn. Thej wife should not be left to starve, or to suffer with hunger for a day, out of respect for the fact that the husband has "a foreign domicile. ^ 206. At the same time it must be observed, that, upon general principles of jurisprudence, should a tribunal under- take to sentence to a separation from bed and board parties domiciled abroad, the courts of their domicile could give but limited, if any, effect to the sentence.^ Yet this is a matter respecting whicli judicial decision seems not to help us; so let us pass on. § 207. The locality in which the suit to declare a marriage void from the beginning is to be instituted, has not been much discussed in the United States or in England ; but it' seems to have been assumed, and it has been assumed by the writer in the foregoing chapters, that this suit is to be carried on in the same locality as is the suit to dissolve the bond of a valid marriage. There can be little doubt that this S'iew is correct, and a few of the cases referred to in the earlier chapters of this our present division of our subject have been cases of this sort. 1 Dolphin V. Robins, 7 H. L. Cas. 390, 414. " And see ante, § 201. [180] CHAPTER XIII. THE JURISDICTION UNDER PARTICULAR STATUTES. § 208. In the course of the foregoing discussions, there have been developed various legal doctrines which might properly find a place in the present chapter. Thus, the statutes of a State are to be interpreted in harmony with the general prin- ciples which govern this department of our jurisprudence ; and where their words will properly admit of it, they are to be understood to give the court jurisdiction when, and only when, a jurisdiction might be assumed according to the pruiciples of general law, as developed in the foregoing chapters.^ But there are statutes in some States which by express words or necessary implication require a departure from these principles.^ § 209 [765]. In the foregoing discussions, also, we con- sidered what was the proper interpretation of a few specific statutes.* What will be attempted here will be to carry out this work a little further. Where a statute made it necessary for the plaintiff to be an inhabitant of the State at the time of bringing his bill for divorce, the residence mentioned was construed to be a bond fide one, not a residence temporarily taken for the purpose merely of carrying on the proceedings.* § 210 [765]. But where the statute provided, that "no person shall be entitled to a divorce from the bond of matri- 1 Ante, § 114; Vol. I. § 90. 2 Ante, ^ 154. 3 Ante, § 114, 154, 158, 162, 173, 177, 199. * Williamson v. Parisien, 1 Johns. Ch. 389 ; Smith v. Smith, 4 Greene, Iowa, 266. And see Lyon v. Lyon, 2 Gray, 367 ; ante, § 122. [181] § 212 THE LOCALITY. [BOOK IL mony, by virtue of this act, who is not a citizen of tliis State, and who has not resided therein at least one whole year pre- vious to filing his or her petition " ; and the parties were citizens, yet the plaintiff wife, at the time of instituting her suit and for a period before, had a temporary residence abroad, witli the intention of returning, — the jurisdiction was sustained. Said the judge : " Do tlie latter words in- tend, that the residence shall be immediately before filing tlie petition ? We are of opinion that they do not. When tlie citizenship is once established, the court will not consider, where there is no intention of abandonment, that mere ab- sence from the State shall be such abandonment She has resided in the State one whole year before filing the petition, and against a citizen we will not necessarily make that year next before filing the complaint." ^ § 211 [765]. And in an Iowa case, the statute of which State requires the petition for divorce to state, that the peti- tioner " lias been for the last six months a resident of the State, the court held, that merely abiding personally in the State during the six months is not sufficient ; the residence must be intended by the petitioner to be a permanent one, animo manendi, in distinction from a transient sojourn.^ Prob- ably such statute should be interpreted to require a domicile, and only a domicile, as the matter was explained in a previous chapter.^ §212 [766]. The Connecticut statute provides, that, "if the petitioner shall have removed from any other State or nation to this State, and shall not have steadily resided in this State three years next before the date of tlie petition, he 1 Fickle V. Fickle, 5 Yerg. 203. And see ante, § 127. See Person v. Person, 6 Humph. 148, in respect to the subsequent Tennessee Statute of 1835. And see McDermott's Appeal, 8 Watts & S. 251. 2 Hinds V. Hinds, 1 Iowa, 36, 49. See also Kruse o. Kruse, 25 Misso. 68 ; Schonwald v. Schonwald, 2 Jones Eq. 367 ; Ashbaugh v. Ashbaugh, 17 111. 476. 2 Ante, § 116 et seq. [182] CHAP. XIII.J JURISDICTION UNDER STATUTES. § 213 or she shall take nothing by the petition, unless the cause of divorce shall have arisen subsequent to his or her removal to this Stale." And it was held on a proceeding for divorce for intolerable cruelty and intemperance, that, though the intemperance, which was a sufficient cause of itself, had continued after the removal of the wife into the State ; still, as the husband had not come with her, but was a citizen of another State, she could not maintain her petition, until she had remained the three years ; the exception in the statute applying only to cases where both parties have be- come residents of Connecticut, within whose jurisdiction the oifence is subsequently committed. Said the judge : " The legislature surely could never have intended, that a woman living with her husband in another State, might come into this State, and, by showing that her husband has been habit- ually intemperate or committed adultery since she removed to this State, at once obtain a divorce. Such a construction would open a wide door for applicants from abroad." ^ This interpretation is certainly very strict.^ § 213 [766 a]. In Rhode Island, the general provision of the statute forbidding divorce to plaintiffs who have not re- sided a specified time in the State, may be, under a statute also, dispensed with by the court in its discretion. Some principles to guide this discretion have been laid down by tlie tribunal ; as, for instance, in a late case, Staples, C. J., said : The jurisdiction has been taken without the specified residence " in case the causes of divorce occurred in this State, or were causes of divorce under the laws of the State where they occurred," if also both parties were domiciled in Rhode Island. Under other circumstances the jurisdiction had been declined, when sought on a residence less than the usual time.* 1 Sawtell V. Sawtell, 17 Conn. 284. See also Brett v. Brett, 5 Met. 233, a de- cision which has become unimportant in Massachusetts, in consequence of Stat. 1843, c. 77. 2 And see Hopkins v. Hopkins, 35 N. H. 474; Goodwin v. Goodwin, 45 Maine, 377. 3 Williams v. ■Williams, 3 R. I. 185. And see Ditson y. Ditson, 4 R. I. 87. [183] § 214 THE LOCALITY. [BOOK IL § 214. A statute in Massachusetts provides, that, " when an inhabitant of this State goes into another State or 6oun- try to obtain a divorce for any cause occurring here, and whilst tiie parties resided here, or for any cause which would not authorize a divorce by the laws of this State, a divorce so obtained shall be of no force or effect in this State." ^ Therefore a divorce obtained in contravention of the statute cannot be set up in defence of a libel which the other party to the marriage may bring for a divorce against the party so obtaining the void foreign divorce. And in a case of this general complexion it was observed by Shaw, C. J. : " The presumption is violent, if not conclusive, that the husband went into Indiana in order to obtain a divorce. Even if he had other objects in view, if this was one, — and liis acting upon it is strong proof that it was, — it would be within the statute." 2 If the decree of the Indiana or other foreign court sets forth, that tlie applicant for divorce was a citizen of such State, this will not avail in Massachusetts to estop inquiry into the real fact. And if the applicant, before he went to Indiana, endeavored to obtain in Massachusetts a divorce from his wife and failed, this fact may be received in evidence as tending to sliow that the removal to Indiana was not bond fide, biit had for its object, or one of its ob- jects, tlie obtaining of a divorce there.^ Some other points will be considered in connection with specific titles further on in this volume. 1 Gen. Stats, c. 107, h 54- ^ Smith v. Smith, 13 Gray, 209. ' Shannon v. Shannon, 4 Allen, 134. [184] BOOK III. THE GENERAL PRINCIPLES OF THE PROCEDURE, EM- BRACING PLEADING, PRACTICE, AND EVIDENCE. CHAPTER XIV. THE PRACTICE OP THE ENGLISH ECCLESIASTICAL COURTS. § 215. We have already seen/ tliat, in England, at the time when we received thence our common law, divorce causes were heard in the Ecclesiastical Courts ; and that, therefore, if we have inherited any practice as pertaining particularly to this class of suits, it is the practice of those courts. In our first volume, there was a discussion of the general question concerning the extent to wliicli the ecclesiastical practice is binding upon our tribunals iu divorce cases ; and to that dis- cussion reference is here made, as rendering it unnecessary to enter into the matter here.^ What will be attempted in the present chapter is, to furnish the reader with such an outline of the ecclesiastical practice as shall make palpable to him the relevancy of those discussions which, in subsequent chapters, will be drawn out from, or based upon, this prac- tice ; and shall likewise enable him more fully to appreciate, than otherwise he could, those expositions of legal doctrine which, in the reports of English divorce cases, are inwoven 1 Vol. I. § 64 and accompanying sections. ^ Vol. I. § 78 - 86. [185] § 218 GENERAL PRINCIPLES OF PROCEDURE. [bOOK in. with allusions to the course of procedure in the ecclesiastical tribunals. § 216. There are two kinds of proceeding known in these courts, and designated as the plenary and the summary. A. divorce suit is always carried on in the plenary way ; but there are collateral matters connected with such a suit, and these are taken up summarily. The first pleading in a divorce cause is termed the libel; but the pleading which corresponds to the libel is, in a summary proceeding, termed the act on petition ; tliough the phrase, act on petition, is also employed to denote tlie proceeding which is instituted in this way. In a plenary cause, all the pleadings, whether of the promoter or the respondent, subsequent to the libel, are denominated allegations ; and in some other kinds of suits, — that is, suits not matrimonial, — the first pleading even, in- stead of being termed a libel, is, like each subsequent plead- ing, called an allegation. But the word plea, though less technical than the word allegation, is quite often used, in the opinions of the courts, to denote tlie same thing. § 217. An ansiver is not an allegation ; it is not a plea ; it does not belong, in any way, to the pleadings. It — that is, the personal answer, which is the common case — is the response which the party, whether promoter or respondent, makes, under oath, to the allegation (here using the word allegation to denote as well the libel as tlie subsequent pleadings) of the opposite party. It is quite important to remember the meaning of the term, answer ; as otherwise the reader, who is familiar with equity proceedings, miglit be led into misapprehension. 1 § 218. It is said by Mr. Law, whose work is mainly a translation of the first part of Oughton, that each of the par- ties is entitled to put in three successive allegations, but no more, — " each supporting and strengthening the preceding." 1 And see; on this matter, Morgan v. Hopkins, 2 Phillim. .582; post, k 281. [186] CHAP. XIV.] ENGLISH ECCLESIASTICAL PEACTICE. § 219 And he adds : " The promovant, having received light from the pleading of the impugnant, amends his bill, to use a, phrase familiar to the equity lawyer, tliat is, he files a second allegation (for this part of the proceeding may be more justly compared to those in the equity courts than in tliose of law), and in the same manner he may file a third; but he can go no further." In like manner, " the defendant or impugnant has also a right to put in three defensive plead- ings." •* § 219. There seems to be some confusion in such of tlie English books as the writer lias consulted as to the exact meaning of the term contestation, and the practice of the courts relating thereto. Yet it seems to be a sort of joinder in issue, but not exactly that, since it takes place before the full issue, in the common-law sense, is made up. " Contestation of suit is the foundation and corner-stone of every plenary ecclesiastical cause, without which all the proceedings are null." " Contestation immediately causes tlie proctors on both sides to become lords of tlie controversy, or masters of the suit." " Contestation of a suit cannot take place unless the plaintiff, or his proctor, is present in court." " The plaintiff, or ratiier the proctor of the plaintiff, on the day as- signed for the defendant's answer to tlie libel, should say, iii presence of the said defendant or his proctor, ' I pray an answer to the libel, according to the terms of your assig- nation.' Then the defendant, if lie does not wish to contest suit negatively, should confess the libel, by answering affirm- atively, and submitting to the judge, and tendering payment of the taxe^ costs. If, however, the defendant intends to contest suit negatively, he must make the following decla- ration : ' Protesting against the libel, for its too great gener- ality, inapplicability, obscurity, nullity, and erroneous repre- sentations, I answer, that the statements, as contained in the said libel, are not true, and therefore that the prayer of tlie said libel should not be granted. And therefore I contest 1 Law's Forms, 179, 180. [187] § 221 GENERAL PRINCIPLES OF PROCEDURE. [BOOK III. suit negatively.' " ^ It is not necessary to copy more from tlie books on this point ; but the reader will be interested to look into the work whence these extracts are taken, and read on from the place where they leave off. Undoubtedly the modern usages of the Ecclesiastical Courts have more or less changed the actual course of things, as relates to this matter. § 220. When a libel or any other allegation has been pre- sented, it is open to the other party to object to its admission ; the objection is a sort of demurrer (to use a word familiar in common-law and equity proceedings) to the allegation. The court may either reject the allegation altogether, or order it to be reformed ; or, of course, on the other hand, admit it. § 221. At a proper time after an allegation is admitted, the personal answer of the opposite party having been taken, and " a term probatory, or period of proof," having been as- signed by the court, within which period the party " is bound to procure all his evidence, unless cause can be satisfactorily shown for renewing the term," — " the proctor whose plea is to be substantiated produces his witnesses, in succession, before a surrogate, who administers the customary oath to each witness, and monishes him to attend to undergo his examination whenever he shall be required for such purpose. This is done in the presence of the other proctor." ^ The testimony is taken in private before an officer of the court called an examiner, and by him reduced to writing. The court has several of these officers, but they are sworn, and the party selects the one he chooses. Tlie mode of taking the testimony is for the examiner to have before him the allegation (be it tlie libel or a subsequent allegation) to sub- stantiate which the witness is produced, and to put orally to the witness such questions as he deems adapted to draw out the truth, respecting each matter alleged, then to write down what the witness says. Tlie party who thus produces the 1 Law's Forms, 173-175. 2 Coote Ec. Pract. 779. [188] CHAP. XIV.] ENGLISH ECCLESIASTICAL PKACTICE. § 223 witness to substantiate the allegation does not also present written interrogatories ; but tlie articles of the allegation used by the examiner, as just explained, stand in the stead of interrogatories. The other party, however, prepares, if he chooses, written interrogatories, which are put by the ex- aminer to the witness. § .222. It would appear that each allegation (reckoning the libel as one of the allegations), on the one side and on the other, has its term probatory, and its course of proofs gen- erally, the same as though it alone constituted the whole case. It is not necessary, therefore, in these courts, that the pleadinigs shall be finished, before testimony on the earlier pleadings is taken. § 223. Besides the regular allegations in contestation of the main matter, there may be ancillary allegations ; as, for example, in a divorce suit, the allegation of faculties, wherein the faculties, or property and income, of tlie husband, are set out. There may be also, as before explained, the act on petition, and the proceedings consequent upon it. But it is deemed that these sections will suffice to give the reader a general idea of the course of a cause in these courts, and the meaning of the leading terms employed. Where any- thing more of explanation is required, it will be found in its' appropriate place in subsequent chapters. This sketch is not made to assist practitioners in those courts, but to en- lighten American readers, and practitioners in other tribu- nals. It is believed to be substantially accurate as an out- line ; the filling up of which, together with a full collection of the authorities bearing on the several points, would occupy too much of our space. [189] CHAPTER XV. A GENERAL VIEW OP THE DIVORCE SUIT. Sect. 224. Introduction. 225-229. The different Kinds of Divorce explained. 230-251. Tlie Rule of consulting tlie Public Interest. 252, 253. Tlie Issues in the Divorce Suit. ■ 254-261. The Course of Procedure in Outline. 263-276. The Evidence of Marriage in this Suit. 277-278. Proofs and Witnesses. § 224. It is propOKsed, in this chapter, not only to give an outline of the proceeding whereby a divorce is obtained, but to fill up also the outline, except as respects several specific things which will severally furnish subjects for suc- cessive chapters to be inserted further on. The matter of this chapter will be divided as follows : I. The different Kinds of Divorce explained ; II. The Rule of consulting the Public Interest ; III. The Issues iu the Divorce Suit ; IV. The Course of Procedure, in Outline, whereby the Issues are evolved and tried ; V. The Evidence of Marriage -in this Suit : VI. Proofs and Witnesses. I. The different Kinds of Divorce explained: \ 225 [292]. Divorce is the dissolution or partial suspen- sion, by law, of the marriage relation ; the dissolution being termed divorce from the bond of matrimony, or, in the Latin form of the expression, a vinculo matrimonii; the suspension, divorce from bed and board, a mensd et thoro. The former divorce puts an end to the marriage ; the latter leaves it in [190] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 225 full force.^ The term divorce is sometimes also applied to a sentence of nullity, which declares the marriage to have been void from the beginning.^ The propriety of so applying it, where the marriage is void, is perhaps questionable ; but properly it designates tlie annulling of a voidable marriage ; the reason of tl\e distinction being, that the latter has a legal existence until sentence passed, while the former has not. We therefore speali of impotence as a ground of divorce ; and Blac]?stone says, the divorce a vinculo matrimoyiii must be for some of the canonical causes or impediments-.^ But with equal propriety we use the expression, sentence or decree of nullity, to designate the legal avoiding of a void- able marriage ; and it seems moi'e significant and less liable to be misunderstood than the otlier, and somewhat better to accord with modern usage.* So a divorce a niensd et thoro is sometimes called a separation,^ and the proceeding to obtain it, a suit for separation ; leaving the term divorce to be applied only to the dissolution of the marriage for causes which arose subsequently to its celebration. In England, a change of terms has been effected by Stat. 20 & 21 Vict. c. 85, § 7, which .provides, tliat " no decree shall hereafter be made for a divorce a mensd et tJioro ; but, in all cases in which a decree for a divorce a mensd et thoro might now be pronounced, the court may pronounce a decree for a Judicial Separation, which shall iiave the same force and the same consequences as a divorce a mensd et thoro now has." 1 Clark V. Clark, 6 Watts & S. 85 ; 2 Burn Ec. Law, Phillim. ed. 501 I. 2 And see Vol. I. k 137. ' 1 Bl. Com. 440. It is said, however, that " the civil and canonical disabili- ties which render the marriage contract either void or voidahle are grounds of separation for nullity of marriage, hut not, correctly speaking, for ji dirorce." Shelford Mar. & Div. 365 ; Godol. Ah. 500. * See Rogers Ec. Law, art. Divorce ; Wadd. Dig. ib. ; Shelford Mar. & Div. 182, 365 ; 1 Eras. Dom. Kel. 709. * See the New York Reports generally This is also the modern Scotch term ; and the phrase " divorce a mensd et thoro" has entirely fallen into disuse in Scot- land. 1 Eras. Dom. Rel. 645, note. [191] § 227 GENERAL PRINCIPLES Of PROCEDURE. [BOOK III. § 226 [293]. These divorces and separations, though granted sometimes by legislative action, as was shown in the first volume,^ are usually in this country, and indeed everywhere, matter of judicial investigation and sentence. As such, we are now considering them. § 227 [294]. In some iof our States, the divorce for certain of the causes may be either from bed and board, or from the bond of matrimony, at the election of the party applying for it.^ In one or two other States, the former species of divorce is in some circumstances preliminary to the latter.^ In North Carolina, the divorce for certain of the causes is to be either from bed and board, or from the bond of matrimony, at the discretion of the court.* So also in Tennessee,^ and in Cali- fornia.^ This discretion is construed to be, ngt an arbitrary, but a sound and judicial one, founded on some reasonable and fixed principles. In one case it was intimated, as the rule of distinction, that, " although a divorce a mensd et thoro may be allowed in some instances to a person who is not en- tirely impeccable, who may not have been exemplary in all the attentions and s^tipulated offices assumed in contracting this relation, yet the policy of the law, the interest of the off- spring, the tranquillity and happiness of families, in general, forbid the dissolution of marriage at the suit of a person to whom default in any of the essential duties of married life can be fairly imputed" ;'' and a like doctrine was laid down in California.^ Generally, in the United States, the statute determines, whether the divorce shall be from bed and board, or from the bond of matrimony. 1 Vol. I. § 660 et seq. 2 Smith V. Smith, 3 S. & E. 248 ; Light v. Light,! Watts, 263 ; Coverdill v. Co.verdill, 3 Harring. Del. 13 ; Ledoux v. Her Husband, 10 La. An. 663. ^ Savoie v. Ignogoso, 7 La. 281 ; Ledoux u.Her Husband, supra. * Collier v. Collier, 1 Dev. Eq. 352; Whittington c^. Whittington, 2 Dev. & Bat. 64 ; Moss v. Moss, 2 Ire. .'55. 5 Butledge v. Ratledge, 5 Sneed, 554. » Conant v. Conant, 10 Cal. 249. ' Whittington u. Whittington, supra; s. p. Moss v. Moss, supra. See also Rutledge v. Rutledge, 5 Sneed, 554 ; Buckholts v. Buckholts, 24 Ga. 238. * Conant v. Conant, supra, p. 257, 258. [192] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 230 § 228 [295]. In the ecclesiastical law, the divorce from bed and board may, it is said, be either for a time or without limitation of time ; ^ but, however this may be, the estab- lished form of sentence separates the parties " until they shall be reconciled to each other." ^ Occasionally in the United States, a statute has expressly authorized the courts to make the separation perpetual, or for a limited period, in their discretion. Chancellor Kent, construing such a statute in New York, decided, on a review of the general policy and reason of the law, that, as a general rule, the decree should be for a perpetual separation, with a proviso allowing the parties at any time thereafter, by their mutually free and voluntary act, to apply for leave to be discharged from the decree.^ But we shall discuss the effect of a sentence of separation in subsequent pages ; and we shall there see, that a reconciliation, though out of court, does de facto put an end to this species of divorce.. § 229 [296]. Though divorces from bed and board and from the bond of matrimony are different in their effects, the legal principles governing the proceeding, down to the time of pronouncing the decree or sentence of divorce, are usually the same ; so we may conveniently discuss them together, till we come to the point of divergence. The suit for nullity, also, is substantially included in this proposition ; though some special observations in relation to it will occur in our next chapter. n. The Rule of consulting the Public Interest. § 230 [297]. It has been sufficiently shown, in the" fore- going pages, that not only the parties, but the public also, 1 2 Bum Ec. Law, Phillim. ed. 501 1 ; Ayl. Parer. 225 ; Barrcre v. Barrere, 4 Johns. Ch. 187. '^ Poynter Mar. & Div. 182, note; Coote Ec. Pract. 347 ; Conset, 279 ; Ongh. ton, tit. 215. 2 Barrere v. Barrere, 4 Johns. Ch. 187. See Bedell v. Bedell, 1 Johns. Ch. 604 ; VOL. ir. 13 [ 193 ] § 230 GENERAL PRINCIPLES OF PROCEDURE. [BOOK IIL have an interest in marriage and in its dissolution. Grow- ing out of this twofold interest, we have the doctrine, running through all matrimonial suits, and bringing into subserviency all other law on the subject, that the proceed- ing, though upon its face a controversy between the parties of record only, is, in fact, a triangular suit, sui generis, the government, or public, occupying the position of a third par- ty,^, without counsel, it being the duty of the court to protect its in,terosts. Indeed, the States of Kentucky ^ and Indiana ^ do, or at some period did, provide counsel for this third party ; since a statute there has made it the duty of the pub- lic prosecuting ofScer to oppose all suits for divorce. So in Scotland, the procurator-fiscal used to look after the interests of the public in- every divorce cause, though both of the par- ties are likewise represented by counsel.* Now by the recent statute of 24 and 25 Vict. c. 86, § 8, it is provided for Scot- land, that "it shall be competent to the Lord Advocate to enter appearance as a party in any action of declarator of nullity of marriage or of divorce ; and it shall be competent to him to lead such proof and maintain such pleas as he may consider warranted by the circumstances of the case ; and the court shall, whenever they consider it necessary for the proper disposal of any action of declarator of nullity of marriage or of divorce, direct that it be laid before the Lord Advocate, in order that he may determine wliether he should enter appearance therein ; and expenses shall not be Clutch V, Clutch, Saxton, 474 (the New Jersey statute authorizing either form) ; Graecen v. Graf cen, 1 Green Ch. 459 ; Coles v. Coles, 2 Md. Ch. 341. 1 Whittington v. Whittington, 2 Dev. & Bat. 64. And see Berthelemy v. John- son, 3 B. Monr. 90 ; Opinion of the Supreme Judicial Court, 16 Maine, 481. " In this State," says the editor of McCord's South Carolina Statutes at Large, vol. 2, p. 733, " marriage is a civil contract, of mutual partnership and personal cohabita- tion during life, under the provisions of laws passed on this subject. The parties are the man, the woman, and the State. The State is interested, her interest being that the contract shall be fulfilled beneficially to the progeny, of whom the future citizens are to be composed." For other definitions of marriages, see Vol. I. § 3 et seq. 2 Stat, of Jan. 31, 1809, § .5 ; 1 Morehead & Brown's Dig. 123. 3 Revised Statutes of 1843, c. 35, ^ 69 ; Green v. Green, 7 Ind. 113. • Ferg. 363, 373, 3 Eng. Ee. 482, 488 ; Tovey v. Lindsay, 1 Dow, 117, 134, 139. [194] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 232 claimable by or against the Lord Advocate with reference to such cases." It appears to the writer, that this provision is a simple and useful one, and not unworthy to be adopted in our own country. We have already seen,^ that, in England, the Queen's Proctor may in some circumstances intervene. § 231 [297] . The reason of this peculiarity, we have just said, is, that society, or the public,'0r the government, as we may choose to express it, has, in fact, an interest in every marriage.^ So are the children, born or en ventre sa mere peculiarly interested in the marriage ; and, as they cannot protect themselves, the government, represented for this pur- pose by the judge, is bound to protect them. Particularly is this so in suits for nullity, which have the effect, when suc- cessful, to make or declare, as the case may be, the children illegitimate.^ Bstablishirig, therefore, the justice of an ap- plication for divorce, not merely as between the parties of record, but as between them and the community, including those individuals who are specially interested yet not before the court, is what is frequently termed, in these cases, satis- fying the conscience of the court. § 232 [298]. These considerations will assist us in answer- ing the question, frequently discussed, whether the suit for divorce is a civil or a criminal proceeding. In England, the suit for divorce a mensd et thoro was always civil in form ; * but the ecclesiastical courts would pronounce a sentence 1 Ante, S 32. " Vol. I. § 34 ; Campbell's case, 2 Bland, 209, 235 ; Gould v. Gould, 2 Aikens, 180. " Marriage," says Lord Stowell, " is a contract formed with a view, not only to the benefit of the parties themselves, but to the benefit of third parties ; to the benefit of their common offspring, and to the moral order of civil society. There are undoubtedly cases for which a separation is provided ; but it is lawfully decreed by public authority, and for reasons which the public wisdom approves." Evans r. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 349. See also McCord's South Caro- lina Statutes at Large, Vol. 2, p. 733 ut supra. 3 Wright V. Elwood, 1 Curt. Ec. 662, 666. And see Cross v. Cross, 3 Paige, 139; post, S 294. * Ayl. Parer. 44. [195] § 234 GENERAL PEINCIPLES OF PEOCEDUEE. [BOOK III. of nullity, not only when applied to in the civil suit for that purpose, but likewise in the criminal prosecution, as for incest.^ In the latter proceeding, it was not essential, but customary, to specify the matter of nullity in the citation.^ § 233 [299]. In the United States, suits for divorce, nul- lity, and separation are always in the civil form. Still, a learned judge has said, that " regulations on the subject of marriage and divorce are rather parts of the criminal than of the civil code ; and apply, not so much to the contract be- tween the individuals, as to the personal relations resulting from it, to the relative duties of the parties, and to their standing and conduct in the society of which they are mem- bers ; and these are regulated witli a principal view to the public order and economy, the promotion of good morals, and the happiness of the community." ^ On the other hand it has been contended, that this remedy is purely a civil one ; and a high authority has .well observed, that a divorce suit is a private prosecution, under the control of the party ag- grieved, who may avail himself of it, or bar himself by his own act.* § 234 [300]. Now it is clear, that a suit for divorce, even where alimony is sought, is not an action upon the contract of marriage. It is rather an action sounding in. tort, for the redress of a private wrong.^ Sometimes it is followed by a consequence partly penal ; as where the guilty one' is prohib- 1 Burgess u. Burgess, 1 Hag. Con. 384 ; Vol. I. §110; Shelford Mar. & Div. 175-184. 2 Chick V. Ramsdale, 1 Curt. Ee. 34 ; Blackmore v. Brider, 2 Phillim. 350 ; Cleaver ». Woodbridgc, cited lb. 362. 8 Sewall, J., in Barber v. Root, 10 Mass. 260, 265 ; Dorsey v. Dorsey, 7 Watts, 349 ; Garrat v. Garrat, 4 Yeates, 244 ; Dickinson v. Dickinson, 3 Murph. 327. And see O'Bryan v. O'Bryan, 13 Misso. 16, 21. « Chancellor Kent, 2 Kent. Com. 100; Clark v. Clark, ION. H. 380, 389; Humphrey J>. Humphrey, 7 Conn. 116; Delliber «. Delliber, 9 Conn. 233; West- brook V. Westbrook, 2 Greene, Iowa, 598 ; Herron v. Herron, 16 Ind. 129 ; Gilbert V. Thomas, 3 Kelly, 575. 6 See Vol. I. § 15. [196] CHAP. XV.] GENEEAL VIEW OF DIVORCE SUIT. § 234 ited by law from entering into a second marriage, during the life of tlie innocent one ; ^ but tliis does not necessarily make the proceeding criminal.^ Nor has any person ever supposed, that a sentence of divorce for adultery would bar an indict- ment for tlie same adultery, in States where this offence is punishable criminally, as perhaps it must be held to do if the divorce suit is strictly criminal. Neither is it any defence to a proceeding for divorce, that the facts cliarged are punishable as crime. ^ We may therefore regard the divorce suit as a civil one, between three distinct parties, — the government, the plaintiff of record, the defendant of record. What the government does is, first, to protect the rights of persons not before tlie court, but liable to be affected by the decree or sentence ; secondly, to guard the interest of tlie public as to its morals ; and, thirdly and chiefly, to see that the status of its subjects, who are the parties of record, and sometimes their children, is properly determined or established. But the government has no interest, which it desires to enforce, to compel the plaintiff of record either to bring the suit, or to prosecute it when brought; wherefore the plaintiff may discontinue it, or bar his right, at pleasure.* It is a civil, triangular action of tort, in its whole character sui generis.^ 1 Dickson v. Dickson, 1 Yerg. 110 ; Vol. I. ^ 304 et seq. 2 Clark V. Clark, 10 N. H. 380, 390 ; Woart v. Wlnnick, 3 N. H. 473, 481. 3 Nash V. Nash, 1 Hag. Con. 140, 4 Eug. Ec. 357. * A party however cannot bar his own right in a way to conflict with public poli- cy. Therefore, as separations by mutual agreement are against public policy, such a separation cannot cut oflf the privilege of either party to maintain, in England, a suit for the restitution of conjugal rights ; even though the articles of separation contain an express covenant not to institute this proceeding. Westmeath v. West- meath, 2 Hag. Ec Snpp. 1, 115, 4 Eng. Ec. 238, 291 ; Mortimer v. Mortimer, 2 Hag. Con. 310, 4 Eng. Ec. 543, 547. ' Mr. Eraser, after reviewing various opinions upon tne question, whether the suit for divorce is civil or criminal, says : " The proper view to take of the objec- tions to the right of divorce seems to have been held to be, to regard them not as arising from the will or consent of the parties, but as forming part of the public law of the country, established for the general good of the community ; and, there- fore, not subject to the compacts, express or implied, which are entered into by individuals." 1 Eras. Dom. Eel. 665. And see Ferg. note (F), p. 381, 3 Eng. Ec. 493 ; Ferg. p. 305, 306, 317, 3 Eng. Ec. 448, 455 ; Lord Brougham, in War [197] § 236 GENERAL PEINCIPLES OF PROCEDURE. [BOOK III. § 235 [301]. From tliese principles it follows, that no de- cree of nullity, or of divorce from bed and board, or from the bond of matrimony, can be entered by the court upon the mere consent or agreement of the parties of record ; because they cannot bind the public. There must be a complaint in due form, for a cause authorized by law, supported by due proof. A default does not, as in other suits, supersede the necessity of proof, or lighten the burden of the plaintiff in establishing his allegations.^ The court will not even sus- tain an agreement concerning the incidental matter of ali- mony, made by the parties in the course of the proceedings, until it is found, on inquiry, to be fair and equitable.^ Yet in respect to all those questions in which the public has no interest, arising in the course of a divorce suit, the parties may conduct their cause as they would any other. Thus, they may, by agreement, discontinue the suit.^ And where the wife is authorized by statute to maintain the suit in her own name as a feme sole, she can compromise or settle it, even against the objection of her solicitor who has not re- ceived his fees. But the court will look into such a case, so far as to see that she has not been overreached or imposed upon by her Imsband.* § 236 [302]. Still, though a defendant of record cannot by his act bind the public, yet his default, acknowledgment. render ». Warrender, 2 CI. & T. 488, 537 ; Lord Stowell, in Evans v. Evans, 1 Hag. Con. 35, note, 4 Eng. Ec. 310, 338. 1 Palmer v. Palmer, 1 Paige, 276 ; Van Veghten v. Van Veghten, 4 Johns. Oh. 501 ; Williamson v. Williamson, 1 Johns. Ch. 488 ; Graves v. Graves, 2 Paige, 62; Barry w. Barry, Hopkins, 118 ; Mansiield v. Mansfield, Wright, 284; Smith V. Smith, Wright, 643 ; Hanks ». Hanks, 3 Edve. Ch. 469 ; Robinson v. Robin- son, 1 Barb. 27 ; Welch v. Welch, 16 Ark. 527. ^ Daggett V. Daggett, 5 Paige, 509. And see Wallingsford v. Wallingsford, 6 Har. & J. 485 ; Threewits v. Threewits, 4 Des. 560 ; Hooper v. Hooper, 1 Swab. & T. 602. 3 Ante, k 234. " Kirby v. Kirby, 1 Paige, 565. Under the present law of New York, the issue joined in a divorce suit may, by agreement of the parties and order of the conrt, be referred to a referee. Anonymous, 5 How. N. T. Pract. 306. An agreement by counsel to compromise not recognized, Hayward v. Hayward, 1 Swab. & T. 333. [198] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 238 or consent for judgment, does settle the cause as against him, so that he cannot complain of any disposition the court may lawfully make of it afterward. As between him and the plaintiff, the charges are to be taken as true. Thus the de- fendant will not be entitled to costs, on the dismissal of the suit under such circumstances. Neither, being the wife, can she have alimony pendente lite. Yet it was held, that, after a bill — the proceeding being in equity — was taken for con- fessed, and referred to a master for proofs, the defendant wife might appear before the master, and cross-examine the plaintiff's witnesses and produce witnesses of her own, at her own expense, not otherwise.^ The principle probably is, that the court, iu satisfying its conscience, and protecting the rights of the public, will receive light from any source, only not to the undue burdening of the plaintiff. § 237 [803]. Obviously, also, the public cannot be inter- ested to interpose technical objections ; and, being always present in court by the judge, it cannot be taken by surprise for want of notice. Therefore all questions preliminary to the hearing, such as relate to the service of process when the defendant has actual notice and appears, waiver of service, amendments,^ and other matters of this sort, may be gov- erned, as in other cases, by ordinary judicial rules, calculated to subserve justice between the parties. A different view from this appears to have been entertained in one case in Ohio;^ but it is so adverse both to principle and general authority, that we can hardly suppose it to be law even there. Indeed, the decision did not proceed from the court of ultimate resort. § 238 1|304]. A singular question arose before the Supreme 1 Perry v. Perry, 2 Barb. Ch. 285. And see Graves v. Graves, 2 Paige, 62 ; post, § 253. ^ Hackney v. Hackney, 9 Humph. 450 ; Anderson v. Anderson, 4 Greenl. 100 ; Fishli V. Fishli, 2 Litt. 337 ; Tourtelot v. Tourtelot, 4 Mass. 506. 2 Smith V. Smith, Wright, 643. See, as adverse to this, Feigley v. Feigley, 7 Md. 537. [199] § 238 GENERAL PRINCIPLES OF PROCEDURE. [BOOK III Court of Errors of Connecticut, in the year 1810. It came up in a qui tarn action, wherein the wife, who had obtained a divorce from the bond' of matrimony, proceeded for the re- covery of a statutory penalty against a party to whom the divorced husband had conveyed, as she alleged, certain prop- erty in fraud of her rights as the husband's creditor. And it was held by a majority of the court, Mitchell, C. J., and Baldwin and Reeve, Judges, dissenting, that, where the hus- band and wife, having determined to separate and dissolve, as far as in them lay, the obligations of their marriage, mutually covenanted, for him to secure a separate mainte- nance to her through the intervention of a trustee ; for her to be no further chargeable to him ; and for him, having com- mitted adultery, and having had the venereal disease, to furnish money and testimony to procure a divorce, she insti- tuting the necessary proceedings, to be under his direction, — the covenant was fraudulent and void, as tending tb mis- lead the court, and interfere with the administration of justice. The judges concurred, that, if it had, been agreed to produce false testimony, or to impose upon the court, the agreement would be a fraud on the law, and therefore void. But the dissenting judges contended, that no fraud appeared in the facts of this case ; that, it being the duty of the hus- band to furnish his wife, who had no money, with the means to procure a divorce, and afterward to pay her alimony, tiiere was no fraud in his voluntarily undertaking what he was already under legal obligation to do ; and that, the object of the provision placing the control of the divorce suit in his hands having merely been, as shown in the evidence, to pre- vent the fact of his having had the venereal disease appear- ing, there was no imposition upon the court in omitting this part of the evidence, other sufficient proof existing. It seemed not to be denied, that a suit for divorce got iip solely by the defendant, under his own control and for his own benefit, would, on such a state of facts appearing, be dis- missed.^ 1 Goodwin v. Goodwin, 4 Day, 343. [200] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 240 § 239. It has been held, that an agreement made by a defendant in a divorce suit, to withdraw his or her papers, and make no defence, is void, as being against public policy ; therefore a promissory note executed in pursuance of such an agreement, and in consideration thereof, is a contract which cannot be enforced against the malcer.^ Also an agreement between the overseers of the poor and a husband whose wife is supported as a town charge, that the town will refrain from making opposition to a libel for divorce filed by the husband against the wife, has been held to be against public policy and void. It was observed by Sawyer, J., that the principle upon which Sayles v. Sayles^ was decided applies here. " That," he said, " was the case of a promissory note, given in consideration of the libellee's forbearing to claim alimony out of the estate of the libellant, when the ground for claiming it was such as would constitute a defence to the libel This was a fraud upon the law, the policy of which is to guard and uphold the marriage relation with a watchful vigilance." ^ § 240 [305]. For the same reason which prevents a de- cree of divorce or nullity of marriage being rendered on the agreement of parties in court, or on the default of the de- fendant,* and growing out of the fact that the public is a party also in these suits,^ we have the further doctrine, that no decree or sentence can be founded upon the sole evidence of the confessions of the defendant out of court. This is the 1 Stoutenburg v. Lybrand, 13 Ohio State, 228. 2 Sayles v. Sayles, 1 Fost. N. H. 312. 3 Weeks v. Hill, 38 N. H. 199, 204. As to the effect of an agreement not to bring a suit to avoid a voidable marriage, see Wistby v. Wistby, 1 Connor & Law- son, 537 ; where the Chancellor, after the death of one of the married parties, re- fused to set aside such an agreement, which had been entered into twenty years before, and acted upon subsequently. And see Vol. I. § 386. As to an agree- ment by the defendant not to resist the divorce suit, see Viser v. Bertrand, 14 Ark. 267. As to an agreement by the plaintiff to discontinue such suit, see Sterling ». Sterling, 12 Ga. 201. See also Ratcliff w. Eatcliff, 1 Swab. & T. 467 ; Lloyd?). Lloyd, 1 Swab. & T. 567. « Ante, k 235. ' Ante, § 230. [201] § 241 GENERAL PRINCIPLES OF PROCEDURE. [BOOK III. rule of the ancient as well as the modern common law. For, in Collet's case, it being suggested to the Court of King's Bench that persons who had lived together in wed- lock sixteen years were proceeding in the Spiritual Court coUusively, on the false allegation of incest, to dissolve their marriage and bastardize their children, — " they both appear and confess the matter, upon which a sentence of divorce was to pass," — it was held that the Spiritual Court should be restrained by prohibition from proceeding thus.^ § 241 [306]. Tills is also a rule of the canon law, founded on a decretal epistle of Pope Celestine III., and expressly renewed by the canons of 1597. " And how great need," says Gibson, " there was of such a prohibition, will appear to any one who shall consult the ancient acts of courts before those times ; and see there how common it was to pronounce separations upon the sole confessions of the parties, and how numerous tlie separations were, so long as that continued to be the rule." ^ At present, or at least until the establishment of the new Matrimonial Court in 1858,^ the matter in Eng- land rests, or did rest, upon the 105tli Canon of 1603, in the following words : " Forasmuch as matrimonial causes liave been reckoned and reputed among the weightiest, and there- fore require the greatest caution when they come to be han- dled and debated in judgment, especially in causes wherein matrimony, having been in the church duly solemnized, is required upon any suggestion or pretext whatsoever to be dissolved or annulled, we do strictly charge and enjoin, that, in all proceedings in divorce * and nullities of matrimony, good circumspection and advice be used, and that the truth may (as far as possible) be sifted out of the depositions of witnesses, and other lawful proofs and evictions, and that 1 Collet's case, 2 Mod. 314. 2 Gibs. Cod. 445 ; Cobbe v. Garston, Milward, 529, 537. ^ Vol. I. 5 65. * This applies as well to separations a mensd et thoro as to divorces a vinculo. Noverre b. Noverre, 1 Robertson, 428, 436 ; Savoie v. Ignogoso, 7 La. 281 ; Saw- yer V. Sawyer, Walk. Mich. 48 ; ante, § 225. And see the observations of Lord Stowell, in Mortimer v. Mortimer, 2 Hag. Con. 310, 316, 4 Eng. Ec. 543, 546. [202] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 242 credit be uot given to the sole confession of the parties them- selves, howevei" taken upon oath, either within or without the court." ^ This canon is in spirit and effect, probably in letter, common law in this country, our courts having uniformly proceeded upon its principles.^ Some of the States, more- over, have substantially incorporated it into their statute law. Yet in two or three of the States, the legislature has estab- lished for the courts a more rigid rule.^ § 242 [307]. Obviously, neither the canon uor the reason of the rule excludes the evidence of the defendant's confes- sions being heard. The interest of the community, or gov- ernment, which we have described as the third party* in matrimonial suits, extends merely to the establishing of the truth, not to the raising of technical objections.^ But if con- fessions were alone sufficient, the marriage would be placed at the will of the parties, in frustration of the entire policy of the law.® And, as Dr. Lushington once observed, " no tribu- nal is to be trusted with the power to determine that which is impossible ; namely, whether such a confession be genuine or false. Still, it is evidence of the highest character ; and I well recollect, in the case of Mortimer v. Mortimer,^ it was 1 Poynter Mar. & Div. 338 ; Gibs. Cod. 445 ; see Vol. I. § 51. 2 Gould V. Gould, 2 Aikens, 180; Washburn v. Washbum, 5 N. H. 195 ; Bax- ter V. Baxter, I Mass. 346; Betts v. Betts, 1 Johns. Ch. 197; Montgomery v. Montgomery, 3 Barb. Ch. 132 ; Devanbagh v. Devanbagh, 5 Paige, 554 ; Holland T. Holland, 2 Mass. 154; Clutch v. Clutch, Saxton, 474. 3 Post, § 250. * Ante, § 231. 5 Ante, § 237. " Holland v. Holland, 2 Mass. 154. ' Mortimer v. Mortimer, 2 Hag. Con. 310, 4 Eng. Ec. 543. In Pennsylvania, Gibson, C. J., remarked : " It is a rule of policy not to found a sentence of divorce on confession alone. Yet when it is full, confidential, relevant, free from suspicion of collusion, and corroborated by circumstances, it is ranked with the safest proofs." Matchin v. Matchin, 6 Barr, 332. " A species of evidence of the highest kind, pro- vided always that it is accompanied with certain requisites, — first, undoubted proof that the admissions were made ; second, that the expressions were clear and dis- tinct; and, third, that the admissions were sincere." -Dr. Lushington, in Stone v. Stone, 3 Notes Cas. 278, 286 ; Betts v. Betts, 1 Johns. Ch. 197 ; Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415, 417. See also Lord Brougham, in Creagh's divorce bill, 32 Legal Observer, 91 ; Harris v. Harris, 2 Hag. Ec. 376, [203] § 243 GENERAL PRINCIPLES OF PROCEDURE. [BOOK IIL strongly relied on by Lord Stowell. There must be other evidence, then ; though I am not aware of any case in which the quantum or description, as auxiliary to a confession, has been the subject of discussion." ^ § 243 [308]. In considering confessions, we must see, in the first place, that what is testified to does really amount to a confession.^ This being determined, then the weight to be given it varies greatly according to the case and circum- stances. In the suit for nullity, where a marriage regularly proved is attempted to be set aside as void from the begin- ning, what the defendant, has admitted is received with par- ticular caution ; ^ though, under some circumstances, it is entitled to much regard, even in this suit.* Dr. Lushington indeed went so far in a case of nullity, where the alleged defect was the undue publication of banns, as to make the following observations : " I place very little confidence in these subsequent declarations ; and I think a grave doubt may be entertained, whether such subsequent declarations, in a case of this kind, made long after the marriage, are admissible as evidence ; because, in these cases, one party or the other might by admissions affect the status of other par- ties, by reason that the interests of the parties in the cause are not confined to themselves, but extend to their children and to the public. The declaration of the wife may by pos- sibility be evidence against the husband, or vice versa; but. 409, 4 Eng. Ec. 160, 175. But see Hansley v. Hansley, 10 Ire. 506. And see post, § 248. 1 Noverre u. Noverre, 1 Eobertson, 428, 440 ; Avmstrong v. Armstrong, 32 Missis. 279, 288. 2 Stone V. Stone, 3 Notes Cas. 278, 286, 291 ; Tuclcer v. Tucker, 11 Jur. 893, 5 Notes Cas. 458 ; Harris v. Harris, 2 Hag. Ee. 376, 4 Eng. Ec. 160 ; "Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415. A confession in general terms will apply to all times and places at which the proofs show the offence might have been committed. Burgess v. Burgess, 2 Hag. Con. 223, 227, 4 Eng. Ec. 527, 529. 3 Searle v. Price, 2 Hag. Con. 187, 4 Eng. Ec. 524; Wright v. Elwood, 1 Curt. Ec. 662, 666 ; Cross v. Cross, 3 Paige, 139 ; post, ^ 294. * Harrison v. Harrison, 4 E. F. Moore, 96 ; post, 5 245, note. [204] CHAP. XV.] GENERAL ■ VIEW OF DIVORCE SUIT. § 245 where it affects the children, I doubt whether such declara- tions could be received." ^ § 244 [809]. The rule regarding confessions is always to be interpreted in reference to its reason ; which is, as we have seen, to prevent collusion, or prevent what actually happened before its adoption ; namely, the obtaining of di- vorces where the grounds for them did not in fact exist.^ Therefore the evidence to be introduced in connection with the evidence of the confession may be either, first, such as tends, like the confession, to prove the issue ; or, secondly, tends to show the absence of collusion. § 245 [310]. Whether evidence showing merely the ab- sence of collusion is sufficient in corroboration of the confes- sion, without any tending to prove the direct fact in issue ; or whether always there must be some evidence, outside the confession, of the direct fact involved, — is a point not ap- parently adjudged in England, though some English cases strongly imply the sufficiency of the former alone.^ In the 1 Brealy v. Reed, 2 Curt. Ec. 833, 7 Eng.Ec. 328. And see Cobbe v. Garston, Milward, 629, where it was held by Pr. Kadcliff, that, in a suit for nullity of mar- riage, the admissions of the defendant are admissible in evidence, yet still are entitled to but little weight. See, however, post, § 245, note. ' 2 Ante, § 241 ; Tucker v. Tucker, 11 Jur. 893, 5 Notes Cas. 458 ; Owen v. Owen, 4 Hag. Ec. 261 ; Tewksbury v. Tewksbury, 4 How. Missis. 109 ; Sawyer v. Saw- yer, Walk. Mich. 48, where it was held that the amount of evidence required to cor- roborate the confession of the defendant varies with the danger of collusion ; Shel- ford Mar. & Div. 411 ; Burgess v. Burgess, 2 Hag. Con. 223, 4 Eng. Ec. 527. 3 Harrison v. Harrison, 4 E. F. Moore, 96, 103. It seems clear, that the cor- roborating evidence in this case merely showed the sincerity of the confession, and the consequent absence of collusion. The suit was for nullity of marriage, on the allegation of the husband's impotence. The examination of the lady (see 3 Curt. Ec. 16, 7 Eng. Ec. 359, where the case as it stood before the Consistory Court of London is reported) elicitedr nothing satisfactory ; and the " evidence of Mrs. Dol- phin," spoken of in the latter report, is probably what is alluded to in the follow- ing passage. In giving judgment in the Court of Privy Council for divorce, con- firmatory of the decision of the Consistory Court, and of the Court of Arches, Lord Brougham said : " It has been insisted by the counsel for the appellant " husband, the original defendant, "that the confession of nonconsummalion is not su£Bcient to satisfy the 105th Canon, and that there must be some extrinsic proof, [205 J § 245 GENERAL PEINCIPLES OF PROCEDURE. [BOOK III. United States, the former has heen expressly held sufficient. Thus where, on a libel for divorce a vinculo, on account of adultery committed by the husband, it was proved that he had been fourteen years out of the commonwealth, separated from his wife, and that, in a letter to her, expressive of peni- tence and desiring a reconciliation, he acknowledged himself to have been living with another woman by whom he had five children ; the court granted her prayer on the strength of the confession alone, since the circumstances proved by other evidence showed no collusion to exist in the case.^ In an- other case the facts appearing were, that the alleged particeps criminis went late to the house where the defendant wife was residing, her husband being at sea, and remained there and for that purpose proof by inspection is said to be essential. Their lordships give no opinion on this construction of the canon ; for if adminicular proof is requisite, they think the circumstance of the appellant's having taken a legal opinion of the validity of the marriage, which he admits in his answer, coupled with the con- fession of non-consummation, and the refusal, in the first instance, to undergo inspec- tion, is sufficient extrinsic proof; and, being satisfied that there is no collusion between the parties, they affirm the decree of nullity." In Noverre v. Noverre, I Robertson, 428, the evidence, aside from the defendant wife's confession, went no further than to show extreme, not indecent, familiarities with the alleged paramour, and ample opportunities. In Tucker .v. Tucker, 1 1 Jur. 893, there were no acts of familiarity proved ; but there were the reception of a letter from the alleged par- amour to the wife, which letter she had not read, and could not therefore know the contents of; and a meeting, not at all shown to be criminal, between her and him, after she was turned off by her husband ; yet these were held amply sufficient to sustain the confession. See also Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3; Owen V. Owen, 4 Hag. Ec. 261 ; Deane v. Deane, 12 Jur. 63 ; Mortimer v. Morti- mer, 2 Hag. Con. 310, 4 Eng. Ec. 543. It has been considered important to prove what is commonly termed the identity of the .parties, by other evidence than con- fessions. Searle v. Price, 2 Hag. Con. 187. 1 Billings V. Billings, 11 Pick. 461. A letter from the defendant, who was iu Texas, to his friends in Louisiana, acknowledging that he was living with another wife there, being the only evidence offered, was, by the Louisiana court, adjudged insufficient proof of his adultery to authorize the divorce prayed. Herman v. McLeland, 16 La. 26. In Clutch v. Clutch, Saxton ^74, it was testified, that the defendant had told the witness he had the venereal disease, which he had con- tracted in New York, and that a physician named was attending him. This evi- dence, standing alone, was very properly deemed inadequate; but the court remarked, that confessions "are never held sufficient without strong corroborating circumstances." Hansley v. Hansley, 10 Ire. 506, a North Carolina case, goes almost to the point of holding confessions altogether inadmissible. [206] CHAP. XV.J GENERAL VIEW OF DIVORCE SUIT. § 246 about half an hour. The next morning she seemed to be in distress ; said this person had been to the house, and she had committed a great sin. When her husband returned, she confessed to him, before witness, tliat she had committed adultery then. The evidence was deemed sufficient.^ In- deed, the circumstances under which the confession was shown to have been made ; ^ also the mere fact, appearing in the case, that the suit was plainly adverse in its character, and seriously resisted,^ — have been severally held to estab- lish the absence of collusion, so as to authorize the decree with no proof of the offence itself, outside the confession. But this is certainly carrying the point to tlie very verge. § 246. In England, since the transference of divorce juris- diction from the Ecclesiastical Court to a new and special one, it has been laid down by the judges, in a case however in which the confessions were in fact held not to be suffi- ciently clear and certain, that, as observed by Cockburn, C. J., "as this court is not a court of ecclesiastical jurisdiction, nor bound in cases of divorce a vinculo by rules of merely eccle- siastical authority, it is at liberty to act, and bound to act, on any evidence legally admissible, by which the fact of adultery is established ; and if therefore there is evidence, not open to exception, of admissions of adultery by the principal respondent, it would be the duty of the court to act on such admissions, although there might be a total absence of all other evidence to support them." * It is difficult to per- ceive on what just ground an English court, proceeding upon the common-law rules of evidence, can forbear to give effect to the common law as it stood before the canon was made, and of which the canon was but confirmatory ; still, if the court should deem that the ecclesiastical judges had erred in some of their interpretations, it might well forbear to follow 1 Tewksbary v. Tewksbury, 2 Dane Ab. 310. 2 Tewksbury v. Tewksbury, supra. " Vanceu. Vance, 8 Greenl. 132. And see Baker v. Baker, 13 Cal. 87. But see dictum in McCuUoch b. McCulloch, 8 Blackf. 60. ' Robinson v. Robinson, 1 Swab. & T. 362, 393. [207] § 248 GENERAL PRINCIPLES OF PROCEDURE. [BOOK m. them as to these. In Arkansas it was provided by statute, that " like process and proceedings shall be had in divorce cases as are had in other cases on the equity side of the court " ; yet the court decided, that, notwithstanding the statute, a divorce could not be granted on a bill taken pro confesso, without evidence to establish the offence charged.^ § 247 [311]. It has been said, that, in England, under the former ecclesiastical procedure, " to prevent fraud in these cases, the practice is for the judge (all persons, especially the husband, being removed apart) to examine the woman as to the truth and cause of her confession, and to ascertain the truth by all other lawful ways and means. If there be fraud or deceit, or a probable suspicion of it, a sentence of divorce will not be granted, unless the adultery be otherwise satisfactorily proved." ^ The defendant, under the ecclesias- tical practice, was required also, it seems, to give a negative issue, that is, to deny the charge ; and the court was almost bound to reject an affirmative issue ; but he could not be compelled either to give in a plea, or to administer interroga- tories.^ In reality, however, whenever a fair case was made out, the relief was granted.* It is difficult to see, how, on any proper principle of general law, the defendant can be compelled to plead negatively to an allegation he does not in fact deny. And this peculiarity of practice is explained by Coote, who says, that, on the admission of the libel, " the proctor for the defendant is bound by the canon to give a negative issue, in order to prevent the possibility of the par- ties colluding to deceive the court." ^ Probably this practice is not to be followed here. § 248 [312]. While therefore confessions, as a species of evidence in matrimonial suits, should be received with cau- 1 Welch V. Welch, 16 Ark. 527. 2 Shelfoi-d Mar. & Div. 41 1 ; Conset, 280. See Oughton, tit. 213. 8 See ante, h 221. * Crewe v. Crewe, 3 Hag. Ec. 123, 131, 5 Eng. Ec. 45, 49. 6 Coote, Ec. Pract. 336. [208] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 249 tion, to be in all cases most accurately weighed ; and while, under some circumstances, they are entitled to little or no consideration ; ^ yet, on the other hand, " where there is less danger of collusion, or it could not be practised so easily, the corroborating facts and circumstances need not be of so decisive a character Where the circumstances of the case are such as to repel all suspicion of collusion, and leave in the mind of the court no doubt of the truth of the confes- sions, it should act accordingly." ^ § 249. In one case it was well observed : " None of the grounds relied on for a divorce are supported by any other evidence than the expressed and implied admissions of the defendant, made at a time and under circumstances which show, that, as his object was a reconciliation with his wife, he deemed it more advisable to acquiesce in her accusations, than to alienate her by a contradiction of them" ; therefore, though tliis was not a case in which collusion was in any degree probable, the divorce was refused.^ And the language of the judges is not quite uniform as to the weight which the confession is to receive, — a fact which results as well from the differing circumstances under which confessions are contemplated, as from the somewhat differing views of the judges themselves. As we have already seen, the confession is sometimes regarded of but little weight, requiring strong corroborative evidence,* and sometimes it is spoken of as being very weighty.^ 1 Ante, § 242 ; "Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 41.^; Bur- gess V. Burgess, 2 Hag. Con. 223, 4 Eng. Ec. 527. " Sawyer v. Sawyer, Walk. Mich. 48. For a singular case of supposed con- fessions, found by a husband in the wife's private diary, and then produced in evidence against her, where, though they seemed on their face to be ample, they were held not to be so because of certain peculiarities of the wife as revealed in other parts of the diary, see Robinson v. Robinson, 1 Swab. & T. 362; ' Twyman v. Twyman, 27 Misso. 383, opinion by Scott, J. * Clutch ». Clutch, Saxton, 474. ' And see Johns v. Johns, 29 Ga. 718 ; Bergen v. Bergen, 22 111. 187 ; McDer- mott's Appeal, 8 Watts & S. 251 ; Buckholts r. Buckholts, 24 Ga. 238; Sheffield V. Sheffield, 3 Texas, 79. VOL. II. 14 [ 209 ] § 250 GENERAL PRINCIPLES OF PROCEDURE. [BOOK III. § 250 [313]. In some of the United States, the common law as to confessions has been considerably modified by statutes ; though generally in this country, the same doctrine still prevails which we received from England.^ The chief modification has been the introduction, in a few of the States, of the very unwise provision that confessions be not at all received, whereby a party is sometimes cut off from using the most conclusive evidence, to the utter denial of justice.^ Concerning the interpretation of a statute of this kind it was observed, that, " where it becomes necessary to any transaction of either party, the conversation bond fide had, has been uniformly regarded as a part of it, and admis- sible ; the court being careful to exclude everything that could, by the most strict construction, be looked upon as originating in collusion, or the desire of either party to make evidence- to favor the application of the other party." ^ By the former statutes of Alabama, on a bill for divorce, the defendant was not required to swear to his answer ; and the confessions of neither party were received in evidence. And it was held, that, where the defendant put in his answer in equity, denying under oath the adultery charged, evidence of two witnesses, or of one with corroborating circumstances, was not necessary.* 1 Ante, § 241; Shillinger». Shillinger, 14 111. 147; Armstrong v. Armstrong, 32 Missis. 279, 288. 2 Kichardson v. Richardson, 4 Port. 467; Gray v. Gray, 15 Ala. 779; Jordan c/. Jordan, 17 Ala. 466; Hansel v. Hansel, Wright, 212; Brainard «. Brainard, Wright, 354; Simons v. Simons, 13 Texas, 468. But in Ohio, this statutory provision has been abandoned for another, more harmonious with the English rale. See Page on Div. 324, 325 ; Sheffield v. Sheffield, 3 Texas, 79, 83 ; Wright V. Wright, 3 Texas, 168, 176. 8 Basoom v. Bascom, Wright, 632. And see Gray ». Gray, 15 Ala. 779; Cor- nelias 1'. Cornelias, 31 Ala. 479. * Moyler v. Moyler, 11 Ala. 620. In a late Alabama case, the court, by Rice, J., observe, that the act of 1824 made confessions inadmissible in evidence in divorce cases ; but the Code now in force provides, that " no decree can be ren- dered on the confessions of the parties." And they add : " The Code makes them insufficient, but docs not absolutely exclude them. It makes them admissible, but forbids the rendition of a decree for divorce when they constitute the only evidence of the alleged cause for divorce. It does not, however, forbid the rendition of such [210], CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 263 § 251. In California, a statute provides, that "no divorce shall be granted in any action by default of the defendant, nor on the admission or statement of either party, but in all cases the court shall require proof of the facts alleged, as the ground for a divorce." And it has been deemed, to use the language of the judge, that " the statute, being in affirmance of the common law, is to be construed as was the rule by that law." Therefore, where the rest of the testimony and the circumstances show, that there can be no collusion, and leave no doubt as to the truth of the confessions, the court may act iipon them thus corroborated. And this doctrine was applied in a suit to declare a marriage null by reason of fraud practised by the defendant.^ III. The Issues in the Divorce Suit. § 252. When we come to consider, in chapters further on, the pleadings and the incidents attendant upon the pleadings, in divorce suits, we shall pass under our review some matters relating to the issue, not to be discussed here. For example, the collateral question, whether or not the plaintiff has his domicile in the State wherein the proceeding is instituted, may be one of the issues involved, but whether it is or not, is a matter to be considered in connection with the rules of pleading which govern these causes. Yet in the next follow- ing section we shall see what are the main issues. § 253 [314]. In every divorce suit, on whatever cause founded, the plaintiff must allege and prove, first,~Ms mar- riage with the defendant ; secondly, a sufficient breach of decree, when they do not constitute the only evidence, but are pVoved in conjunc- tion with other circumstances and condact, which confirm or tend to confirm them, and repel the idea of collusion between the parties. A decree for divorce rendered on confessions, and conduct and circumstances, is not a decree ' rendered on the con- fessions of the parties,' within the meaning of the Code." King v. King, 28 Ala. 315, 319. And see further on this point, Hanberry v. Hanberry, 29 Ala. 719. 1 Baker v. Baker, 13 Cal. 87. And see note to the last section. [211J § 253 GENERAL PRINCIPLES OF PROCEDURE. [BOOK in. matrimonial duty. He is then entitled, as against the de- fendant, to a divorce ; unless the latter sets up and proves either, first, connivance, which may embrace some facts be- longing also under the head of collusion ; or, secondly, condo- nation ; or, thirdly, recrimination ; or, fourthly, unless the right is lost by the lapse of time, or by what is called the plaintiff's insincerity. As against third persons, sometimes permitted to intervene for the protection of their own interest, he is equally entitled to the divorce, unless they also establish some one of these defences. As against the public, repre- sented by what is called tlie conscience of the court,^ he is to the same extent entitled ; only this party, not being a party of record, is never obliged to respond by plea to the plaintiff's allegations, and* never loses its rights by laches ; ^ and so, whenever a defence comes out in the proofs, whether alleged or not, it is fatal to the proceeding.^ A maxim in these suits therefore is, that a cause is never concluded as against the judge ; * and tlie court may, and to satisfy its conscience sometimes does, of its own motion, go into the inquiry of matters not involved in the pleadings.^ 1 Ante, § 231. 2 Analogous to this point, there cannot be a nonsuit in criminal cases ; because the king, or government, is said to be always present in court. Eex v. Adamson, Saville, 56. 3 Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ec. 45, 46; Phillips v. Phillips, 1 Eobertson, 144, 156; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130; Elwes V. Elwes, 1 Hag. Con. 269, 4 Eng. Ec. 401, 411, 412; Levering v. Lovering, 3 Hag. Ec. 85, 5 Eng. Ec. 27; Mattox v. Mattox, 2 Ohio, 233; Smith v. Smith, 4 Paige, 432 ; Suggate v. Suggate, I Swab. & T. 492. And see ante, § 234, 236, 237. * Halford v. Halford, 3 Phillim. 98, 103; Hamerton v. Hamerton, 2 Hag. Ec. 8, 24, note, 4 Eng. Ec. 13, 20. And see Middleton v. Middleton, 2 Hag. Ec. Supp. 134, 1 Eng. Ec. 299, 301 ; Donellan v. Donellan, 2 Hag. Ec. Supp. 144, 4 Eng, Ec. 304. 5 Smith V. Smith, 4 Paige, 432; Morrell v. Morrell, 3 Barb. 236. But see Lewis V. Lewis, 9 Ind. 105, which, however, was decided not in accordance with the general doctrine. [212] CHAP. XV.J GENERAL VIEW OF DIVORCE SUIT. § 254 IV. The course of Procedure in Outline, whereby the Issues are evolved and tried. § 254. The first matter to be considered under this sub-title is, in what court the divorce suit is to be brought, and what is the usual course of proceeding in the court. Also, whether there are any statutes expressly directing what shall be the course of divorce procedure. In some of our States equity and law causes are heard, as in England, in distinct courts ; but, in most of our States, at the present time, they go before the same set of judges, though the forms of procedure, when the case is in equity, may conform to the general equity prac- tice, while, when it is at common-law, they conform to the gen- eral common law practice. In some of our States of late, how- ever, a general blending of equity and law forms has taken place, — and this seems to be the tendency of things, in those mutations which are effected by statutes in this country. We have no Ecclesiastical Courts, as the reader has already been apprised, in any of our States. What is the result of this gen- eral condition of the facts upon our divorce practice is matter which was discussed in a general way in our first volume.^ In some of our States the suit for divorce is to be brought be- fore a court of common law ; in others, before a court of equity ; in others, before a court which has both equity and common-law jurisdiction ; and in all, the suit is more or less modified, as to the procedure, by the peculiar nature of the subject, and by the adoption of rules of practice from the Ecclesiastical Courts of England. The result therefore must be, and it is, that, in none of our States, is the procedure very well defined ; while it somewhat differs, so far as it is defined, in the different States. It is the purpose, of the author to attempt no very minute descent into the practice of particular States, 1 Vol. I. § 78 - 86. And see Stokes v. Stokes, 1 Misso. 320. [213] § 256 GENERAL PKINCIPLES OF PEOCEDUEE. [BOOK III. yet to call the reader's attention to certain points of pretty gen- eral applicability. § 255. As to the court in which the suit is to be brought, and the county, and the like, perhaps a reference to some cases in a note may be useful. This is a matter depending so much upon local statutory law, changing also in the several States, that to attempt a particular discussion of it would be unwise. The law is not now, in all the States to the decisions of whose tribunals references are made in the note, the same as it was when the decisions were pronounced ; at the same time, there may be involved in the decisions, principles of permanent ap- plicability.^ § 256. The issue or issues which the pleadings may evolve are, according to the course of the Ecclesiastical Courts, to be tried, not by a jury, but by the judge, who decides all questions both of law and fact. And it is believed that this course is universally pursued in this country, except where a statute directly or by implication provides for a jury trial ; yet, at pres- ent, jury trials are provided for in the greater number of our States. But wiiere the proceeding is in equity, the court some- times, it seems, without special direction of a statute, will order a feigned issue to be sent to a jury, as in other equity causes.^ 1 Sharman v. Sharman, 18 Texas, 521 ; Reese v. Eeese, 23 Ala. 785; Wiley ». Wiley, 27 Ala. 704 ; Conant v. Conant, 10 Cal. 249 ; Sanford u. Sanford, 5 Day, 353 ; Forrest ii. Forrest, 6 Duer, 102 ; Fischli u. Fischli, 1 Blackf. 360 ; Vainer n. Varner, 3 Blackf. 163; Smith v. Smith, 4 Blackf. 132; Fulton v. Fulton, 36 Missis. 517 ; HoUoman v. Holloman, 2 Der. & Bat. Eq. 270; Mattox v. Mattox, 2 Ohio, 234 ; Light ». Light, 17 S. & K. 273 ; Moore v. Moore, 2 Mass. 117 ; Lane T. Lane, 2 Mass. 167 ; Richardson v. Richardson, 2 Mass. 153 ; Squire v. Squire, 3 Mass. 184; Hopkins ». Hopkins, 3 Mass. 158; Carter ». Carter, 6 Mass. 263; Merry v. Merry, 12 Mass. 312; Williams w. Dormer, 16 Jur. 366, 9Eng. L. & Eq. 59'8; Richmond u. Richmond, 10 Yerg. 343; Herron v. Herron, 16 Ind. 129; Gilbert v. Thomas, 3 Kelly, 575; Rice v. Tarver, 4 Ga. 571, 582. 2 See, as illustrating some of the matters mentioned in this section, Morrell v. Morrell, 1 Barb. 319 ; Oliver v. Oliver, 20 Misso. 261 ; Carye u. Carre, 2 Yeates, 207; Miles v. Miles, 2 Jones Eq. 21 ; Richmond v. Richmond, 10 Yerg. 343; [214] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 258 § 267. It is ill the power of all courts, in the trial of all manner of causes, to protect the parties against being injured by surprise and by other similar things ; to rescind their inter- locutory orders ; to permit further evidence to be taken after publication ; and the like ; but there is nothing connected with divorce, as to these matters, worthy of very special mention.^ It may however be observed, that, where the defendant suf- fers himself to be defaulted, and nothing remains but to satisfy the conscience of the court, as it is called, the judge will not always feel himself bound by so strict a rule, when asked for a second hearing, as he would be if the opposite party appeared, and so, his rights intervening, contested the application. Yet nothing can be very certainly said upon this point. Counsel should always go before the judge prepared to make out the full case. § 258. Suppose there is a verdict against a party, can he have a new trial ? This question does not arise in divorce causes alone, it comes up for consideration in all other cases where there is a jury trial ; and the rules which guide the dis- cretion of the judge in ordinary cases seem to be applicable in causes of divorce. Thus, it is held in the English Divorce Court, that a verdict will not set aside as against the weight of evidence, simply because the judge would himself have come to the contrary conclusion. The Judge, said Cresswell, J., must bo " dissatisfied, the word used by Lord Mansfield, which means something more than that he entertained a different opinion." ^ It was held in New York, when divorce causes were there heard in equity, and a feigned issue upon the fact alleged as foundation for the divorce was tried before a jury, that, if the Wood V. ■Wood, 5 Ire. 674 ; Devanbagh u. Devanbagh, 5 Paige, 554 ; Reavis V. Beavis, 1 Scam. 242 ; Stokes v. Stokes, 1 Misso. 320 ; Harrison v. Harrison, 7 Ire. 438 ; Bacon v. Bacon, 2 Swab. & T. 53 ; Smith v. Smith, 4 Paige, 432. 1 See Hamerton v. Hamerton, 2 Hag. Be. 618, 4 Eng. Ec. 224 ; Darant v. Du- rant, 2 Add. Ec. 267, 2 Eng. Ee. 298 ; Eriend v. Friend, Wright, 639 ; Chamber- lain V. Chamberlain, 2 Aikcns, 232. ^ Miller v. Miller, 2 Swab. & T. 427. See also, for decisions in this court. Hill v. Hill, 2 Swab. & T. 407 ; Stoate v. Stoate, 2 Swab. & T. 384. [215] § 259 GENERAL PRINCIPLES OF PROCEDURE. [BOOK UI. jury found the defendant guilty, and the judge did not believe him to be so, the sentence for divorce should not be passed upon this finding, but a new trial should be granted. And it was observed that the object to be attained, by the sending of the case to the jury, was, the protection of the defendant, who would not be protected if a divorce should be granted contrary to what the judge deemed to be the justice of the case.^ Yet in a later New York case the judge observed : " Our statute in relation to divorces has taken from the court the power of de-, ciding upon the fact of adultery, where it is denied by the party charged, and conferred it upon the jury ; and, although the court is authorized by the statute to grant a new trial as often as justice shall seem to require, yet it would seem to be proper that this court, in the exercise of this power, should fol- low the rules adopted by courts of law in granting new trials ; and that, where there is conflicting evidence, a verdict should not be set aside simply because the court might think it to be against the weight of evidence, or would have decided differ- ently from the jury." And it was deemed, that, in this mat- ter, the same rules should be applied in divorce causes as in others.^ § 259. There can be no new trial in a divorce case, by reason of evidence having been improperly rejected, if the re- jected evidence, had it been received, would not have changed the result.^ If there is a verdict rendered contrary to the allegation contained in the pleadings of the party in whose favor it is given in, it will not avail him.* And in a case, not of divorce, it was held, that a party cannot take advantage of his own conduct, in the management of his cause before the 1 Perguson v. Ferguson, 1 |Barb. Ch. 604 ; s. p. in substance, Moore ». Moore, 22 Texas, 237. See Muloek v. Mulock, 1 Edw. Ch. 14 ; Richmond ■«. Richmond, 10 Yerg. 343 ; O'Bryan v. O'Bryan, 13 Misso. 16 ; Vance v. Vance, 17 Maine, 203. 2 Ferguson v. Ferguson, 3 Sandf. 307, 308, opinion by Mason, J. And see Ba- con ». Bacon, 2 Swab. & T. .53 ; Kolb's case, 4 Watts, 154. 3 French v. French, 14 Gray, 186. See also Pinkard v. Pinkard, 14 Texas, 356. * Wood V. Wood, 5 Ire. 674. And see Stokes v. Stokes, 1 Misso. 320. [216] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 2G0 jury, to avoid a verdict against himself. " It is not," said the judge, " for a party to complain, that the personal knowledge of jurors was appealed to by himself unsuccessfully. Having chosen to adopt, and been permitted without objection to pursue, an unusual course of argument, and having therein ventured to rely upon a species of evidence usually regarded as loose, uncertain, and dangerous in its character, he cannot take advantage of his own act and avoid a verdict against himself on account of his own conduct in the management of the cause before the jury." ^ I' § 260. The foregoing observations refer to the question of new trials sought after verdict rendered, but before judgment ; and sought in Che same court in which the verdict was found. In a Missouri case it is laid down, that, upon an application for a new trial in a higher court, where the evidence in the divorce case is conflicting, and the decision of the lower tribu- nal trying the cause depends upon the credibility of witnesses, the superior court will not interfere.^ In some of our States, and under some circumstances, appeals, exceptions, and the like, from the tribunal trying the divorce cause to a higher court, are allowable ; but this matter does not demand discus- sion here. In another chapter, we sliall consider the question of opening judgments for divorce, in cases of fraud and in other cases, where a judgment final in form has been ren- dered.* 1 Nutting V. Herbert, 37 N. H. 346, 354, opinion by Fowler, J. ^ Stevenson v. Stevenson, 29 Misso. 95. And see Street v. Street, 2 Add. Ec. 1, 2 Eng. Ec. 195. ' See Hoffman v. HoiFman, 6 Casey, 417 ; Holloman v. Holloman, 2 Dev. & Bat. Eq. 270 ; Hunt v. Yeatman, 3 Ohio, 16 ; Hofmire v. Hofmire, 7 Paige, 60 ; Good- in r. Smith, Milward, 236 ; Franlifort v. Franlifort, 3 Curt. Ec. 715, 7 Eng. Ec. 558 ; Street v. Street, 2 Add. Ec. 1, 2 Eng. Ec. 195 ; Boggess v. Boggess, 4 Dana, 307 ; Dunn v Dunn, 4 Paige, 425 ; Smith ». Smith, 4 Paige, 432 ; Phelps v. Phelps, 7 Paige, 150 ; Burr t;. Burr, 10 Paige, 166 ; Jeans v. Jeans, 3 Harring. Del. 136 ; Sheafe v. Sheafe, 9 Fost. N. H. 269 ; Jungk v. Jungk, 5 Iowa, 541 ; Thornbcrry v. Thornberry, 4 Litt. 251 ; Maguire w. Maguire, 7 Dana, 181 ; Evans v. Evans, 5 B. Monr. 278 ; Pence v. Pence, 6 B. Monr. 496 ; Bourne v. Simpson, 9 B. Monr. 454 ; Hanberry v. Hanberry, 29 Ala. 719; Meyar ». Meyar, 3 Met. Ky. 298; Malony V. Malony, 9 Rob. La. 116; Smith v. Smith, 20 Misso. 166; Miller!). Miller, 3 [2n] § 262 GENERAL PRINCIPLES OF PROCEDURE. [BOOK IIL § 261. There are various other questions which might well be considered in connection with this general view of the proceedings in a divorce case ; but we shall better discuss them in other connections. To sum up this matter in a sin- gle sentence, it may be said, that the procedure in a divorce cause is the same with the procedure in any other before the same court, except as regards those particulars in which the statutes have otherwise provided, or the nature of the cause demands a different procedure, or some rule of the ecclesiastical law has found such a status before the court as permits it to stand in the place of the ordinary rules there prevailing. V. The Evidence of Marriage in the Divorce Suit. § 262 [315]. Several of the foregoing issues are considered in separate chapters ; but in this chapter we shall look at the evidence of the marriage, and, in a general way, at the other evidence. The necessity of proving the marriage arises, not only from the fact that it is an essential ingredient in the offence alleged, since no violation of matrimonial duty can take place where the matrimonial relation does not exist ; but likewise from the consideration, that, as divorce is the suspension or dissolution of this relation, if there is no rela- tion subsisting, there is nothing for tlie divoi'ce to act upon.^ And so marriage is the foundation of the whole proceeding;^ Binn. 30 ; Andrews v. Andrews, 5 S. & R. 374 ; Price v. Price, 10 Oliio State, 316; Robbans v. Bobbarts, 9 S. & R. 191; Brentlinger ». Brentlinger, 4 Eawle, 241; Brora <,-. Brom, 2 Whart. 94; Bascom ». Bascom, 7 Ohio, 2d pt. 125; Tappan v. Tappan, 6 Ohio State, 64. 1 Cooper V. Cooper, 7 Ohio, 2d pt. 238 ; Ayl. Parer. .'io. In like manner, a lawful marriage must bo shown as the foundation of a suit for alimony; yet it has been intimated, that, for the purposes of this suit, if a man has treated and held out a woman as his wife, he shall be estopped thereby from denying that she is such. McDonald v. Fleming, 12 B. Monr. 28.'5. And see Trimble v. Trimble, 2 Ind. 76; post, 1) 268. It is doubtful, however, whether this species of estoppel in pais ought to be allowed in suits between the parties. ^ Hamerton v. Haraerton, 2 Hag. Ec. 8, 4 Eng. Ec. 13 ; Zule c. Zule, Saxton, [218] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 262 and the decree or sentence of divorce affirms the marriage, in form and effect,^ as well as declares the separation.^ In the ecclesiastical practice, when the defendant denies having entered into this relation, or denies the validity of it, the pro- ceeding assumes the form of a suit for nullity : the question of the marriage is the first settled ; and, if affirmed, the alleged breach of it is inquired into afterward.^ - Where the defend- ant does not contest the marriage, the plaintiff must simply prove it, in connection with his other allegations.* And the 96 ; Guest v. Shipley, 2 Hag. Con. 321, 4 Eng. Ec. 548 ; Best ». Best, 1 Add. Ec. 411,2 Eng. Ec. 158, 160; Clowes v. Clowes, 9 Jur. 356 ; Sinclair ». Sinclair, 1 Hag. Con. 294 ; 4 Eng. Ec. 412 ; Williams n. Dormer, 16 Jar. 366, 9 Eng. L. & Eq. 598 ; Tarbell, petitioner, 32 Maine, 589 ; Wright v. Wright, 6 Texas, 3 ; Evans V. Evans, 1 Swab. & T. 328 ; Harman v. Harman, 16 111. 85. 1 Coote Ec. Pract. 346, 357. ' Mayhew v. Mayhew, 3 M. & S. 266, 2 Phillim. 11. " Montague v. Mont£«;ue, 2 Add. Ec. 375, 2 Eng. Ec. 350 ; Mayhew v. May- hew, 2 Phillim. 11, 1 Eng. Ec. 166 ; Brown v. Brown, 2 Hag. Ec. 5, 4 Eng. Ec. 11 ; Robins v. Wolseley, 2 Lee, 149, 6 Eng. Ec. 75. This is also the rule in Scot- land. 1 Eras. Dom. Rel. 659. * In an old Massachusetts case it was held, that, on a libel for divorce from bed and board only, it is not necessary to prove the man-iage, unless it is denied. Hill I'. Hill, 2 Mass. 150. And the Court of Chancery, in Maryland, seems to have heard eases of divorce and alimony on bill and answer, without evidence of mar- riage beyond the admissions of the parties so obtained. See the cases cited in Helms V. Franciscus, 2 Bland, 544. See also, for Illinois, Harman v. Harman, 16 HI. 85. In Maine, on a libel, for divorce a mensa et tliorro for cruelty, where the re- spondent did not appear, and the counsel for the libellant cited the above case of Hill V. Hill, the court, without deciding the question in its application to suits where the respondent appears and admits the marriage, held, that, in a case situated like the one before the court, evidence of a legal marriage must be produced. The court said : " Possibly the other party might not have had actual knowledge of the pen- dency of the libel, even though it may have been served or published as the law requires ; and, as the consequences of the divorce might seriously affect his estate in the matter of alimony, they would not decree a divorce from bed and board until it should appear that the parties had been legally married, and that the libellant was thereby entitled to her alimony by law." Williams p. Williams, 3 Greenl. 135. See, also, Jones v. Jones, 18 Maine, 308. But the other authorities, English and American, require the marriage to be proved in suits for divorce from bed and board, as well as from the bond of matrimony ; and they do not allow this fact, more than any other in the case, to be established by the sole admissions of the defendant. Plainly the canon, and the reason of it, must apply to the marriage, as much as ,to any other part of the plaintiff's case. See cases cited ante, § 241, 253. [219] § 264 GENERAL PRINCIPLES OF PROCEDURE. [BOOK IIL defendant, in the ecclesiastical practice, was required either to deny or admit it, at once, on the introduction of the libel.^ § 263 [316]. In an early Massachusetts case, the court, declining to decide whetlier or not a marriage may be valid for some purposes and invalid for others, held, that to au- thorize a divorce, it must be good ' for all purposes. The marriage in question not being valid within the statute, the court considered the statute not to authorize its dissolution .^ But if a marriage is a marriage at all, and, as such, binding for any purpose, no very obvious principle appears justifying the court in refusing to interfere. And in an English case. Dr. Lushington apparently laid down the proposition, that, if a marriage is so far good as to preclude its being set aside on a proceeding for nullity, it is sufficient to sustain a sen- tence of separation, for adultery. " If I could not pronounce the marriage void," he said, " it almost follows, as it seems to mCj that I must pronounce it valid for certain purposes ; and, if for certain purposes, valid for the husband or wife, as the case might be, to obtain a separation for a violation of the marriage vow." The marriage under consideration was a con- tract per verba de prcesenli, entered into in a British colony, and the court — subsequently to the decision in The Queen v. Millis 3 — held it sufficient to authorize a divorce.* § 264 [316 a]. The question however still remains, whether 1 Coote Ec. Pract. 336. 2 Manguc v. Mangue, 1 Mass. 240. s Vol. I. § 275 - 278. * Catterall v. Catterall, 1 Robertson, 580, 581, 583. And see Vol. L § 278. See also D'Aguilar v. D'Aguilar,, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 330, where Lord Stowell remarked, that " all persons who stand in the relation of hasband and wife, in any way the law allows, as by a foreign marriage, or by a domestic mar- riage not contrary to law, have claim to relief on the violation of any matrimonial duty.'' In the United States, where the contract per verba de prcesenti alone is held to be a good marriage at common law, it is difficult to see how this question can practically arise ; for the relation of husband and wife, it seems to me, must either exist or not exist, tlie law having made no provision for an intermediate state. There may be issues in which the proof of a particular marriage would fail, when it would prevail in other issues ; but this is mere matter of evidence. [220] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 265 a voidable marriage, in distinction from a void one, is suffi- cient as the foundation of a suit for divorce. We have no American authority conclusive of this point; but plainly it could not be so in the English ecclesiastical tribunals ; and a single reference to what is said in our chapter concerning Void and Voidable in Marriage,^ will make this proposition plain. There is an English case, in which a further propo- sition was debated by Dr. Lushington, but not decided ; namely, suppose a party is sued for divorce for some cause arising subsequently to the nuptials, and one of the parties is shown in evidence to have been, at the time of the nup- tials, physically impotent, rendering therefore the marriage voidable ; yet a farther fact appears, that the right to avoid the marriage for this defect could not practically be availed of, in consequence of insincerity or delay in the one injured thereby, — could, in these circumstances, the plaintiff rely on this marriage as a foundation for the divorce ? ^ Notwith- standing the English doctrine does not allow a voidable marriage to be sufficient, the consequence may not follow, that, in our States, and under all circumstances in which the question could arise in our jurisprudence, it will be insufficient with us. And an Illinois case seems to lay down the doctrine, that, in divorce suits, only the fact of a marriage need be proved, not its legality. This, however, would doubtless be everywhere sufficient prima facie evi- dence of a valid and legal marriage. Yet Scates, J., observed : " I apprehend a mere de facto or cohabitation marriage, and an unlawful marriage, such as is void as being witiiin the degrees of consanguinity, or between white and colored per- sons, may be dissolved by decree, or declared void. Rev. Stats. 1845, p. 196, § l."3 § 265 [317]. In suits for nullity of marriage, as in suits for divorce, the marriage sought to be set aside must be 1 Vol. I. § 105 et seq. 2 Anonymous, Deane & Swabey, 295. 2 Harman v. Harman, 16 111. 85. [221] § 266 GENERAL PRINCIPLES OF PROCEDURE. [BOOK HI. proved.^ Yet the rules governing the proof, as to quantity and kind, in suits for nullity, seem not to be well defined. In an English case, — where the marriage was celebrated in Scotland, and the ground of nullity alleged was that the defendant wife had a former husband living at the time of its celebration, — T)r. Swaby, after remarking that the direct evidence of the fact of the marriage in respect to which the sentence of nullity was prayed, was not satisfactory, added : " Nor is this lack of primary evidence at all compensated for by any secondary proof in the cause, as of consummation, cohabitation, mutual acknowledgments, &c. For, even granting such secondary proof to be admissible in the case, which is very doubtful (it being a case brought inter vivos, and by the one against the other contracting party), save only in corroboration of other and more direct testimony, — namely, that of persons present (there being persons still living vouclied to have been present) at tlie alleged fact of marriage, — yet still, of the little of such secondary proof as appears in the cause, the whole is extra-libellate, and so, strictly speaking, no proof." But he admitted, on the au- thority of former discussions, that, if the suit were prosecuted by a person other than one of the parties to the marriage, and tlie proof of the fact of marriage were not in the power of sucli a plaintiff, it might, witliout this proof, be declared void. Under the latter state of facts, the decree of the court would pronounce the marriage " void, if any such loere had." ^ Under the former, and as tlie general rule, the decree affirms the fact of the pretended marriage, as well as pronounces it void.^ § 266 [318] . The amount and species of proof 'necessary to establish a marriage, in suits for divorce and separation, seem also not to be very clearly defined upon authority.* In our first volume, the general subject of the evidence by which 1 Aughtie V. Aughtie, 1 Phillim. 201, 1 Eng. Ec. 72. * Nokes r. Milward, 2 Add. Ec. 386, 2 Eng. Ec. 356, and eases in the notes. « Coote Ec Pract. 402, 424. * Good V. Good, 1 Gurt. Ec. 755, 6 Eng. Ec. 452, 456. [222] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 267 a marriage is established was discussed at large, and it only remains for us liei'e to inquire into the matter as concerns specifically the suits for divorce. The material question is, whether what is sometimes termed a fact of marriage must be shown, as in indictments and actions for seduction ; or whether such evidence as of cohabitation and repute, which derives its significance from the legal presumption of inno- cence, is sufficient. In divorce bills before tlie House of Lords, " the usual course," says Macqueen, " is to produce aud prove an examined copy of the entry in the marriage register ; aud then to call a witness who was present at the ceremony, and acquainted with the parties. Such evidence, however, cannot always be obtained. But the best proof must be tendered that the circumstances of the case will admit of." ^ In the ecclesiastical courts, the libel for divorce, whether for adultery or for cruelty, used to plead in form both a fact of marriage celebrated according to law, and cohabita- tion and repute following.^ When we consider the course of proceeding in these courts, the conclusion to be drawn from this form of pleading is simply, that proof of cohabitation and repute is relevant to the issue ; but whether it is suffi- cient of itself, we must learn elsewhere. § 267 [319]. In a suit in Ireland for jactitation of mar- riage, wliere, as is not always or necessarily the case in this suit,^ a marriage legally solemnized was set up in defence ; and where the clergyman who, it was said, performed the ceremony, was not living ; and one of the two witnesses was dead also, and the other witness could not identify the par- ties ; an attempt was made to pi'ove the marriage by circum- stantial evidence. Dr. Radcliff held, that the circumstances made to appear were insufficient, but added: "It is proper to contradict a notion, that a marriage in such a case could not be proved by circumstances, cohabitation, and acknowl- edgment."* 1 Macqueen H. L. Pi-act. 535. = Coota Ec. Pract. 320, 350. 3 Post, ^ 290. * Bodkin v. Case, MiUvard. 355, 361. [223] § 269 GENERAL PRINCIPLES OF PROCEDURE. [BOOK III § 268 [320]. Ill Virginia, in an equity suit, by the wife against the husband for alimony, on the allegation of his desertion and refusal to support her, the marriage being de- nied by him in his answer, evidence of his former admissions, of cohabitation, and general repute, without any more direct proof, was held to be enough. And the Chancellor dis- tinguished this case from indictments and actions for crim- inal conversation, in which is charged a crime resting on the marriage alleged. " But the virtuous act of matrimony," he added, " may in this case, as in many others, be proved by cohabitation, name, reputation, and other circumstances." ^ So in Alabama,^ Texas,^ Indiana,* and Illinois,^ evidence of cohabitation, and repute, and the like, seems to have been deemed sufScient in proof of marriage, in divorce suits. § 269 [321]. In the English case of Mellin v. Mellin, de- cided in 1838 by the Privy Council, Lord Brougham said, that a sentence of divorce from bed, board, and mutual co- habitation " can only be pronounced upon strict proof of the status of the parties"; but there was no discussion, as to what would be considered strict proof.^ In Good v. Cood, which was a suit for divorce on the ground of adultery, it ' was in evidence, that the parties were on a voyage, in Bar- badoes, and there intended to be married; that the witness wrote to the governor for a special license ; and that, after what was assumed to have been the ceremony performed, they returned to the ship as husband and wife, and were so treated. Dr. Lushington would not decide whether this was alone sufficient evidence ; there being other evidence, making, with this, the point satisfactory.'^ 1 Purcell V. Purcell, 4 Hen. & Munf. 507, 512. = Morris v. Morris, 20 Ala. 168. s -Wright ». Wright, 6 Texas, 3, * Trimble v. Trimble,^ 2 Ind. 76. 6 Harman v. Harman, 16 111. 85. 6 Mellin v. Mellin, 2 E. P. Moore, 493. ' Cood V. Cood, 1 Curt. Ec. 755, 6 Eng. Ec. 452. See also Hervey v. Hervey, 2 W. Bl. 877 ; Kenrick v. Kenrick, 4 Hag. Ec. 114, 129 ; Duncan v. Duncan, 2 Monthly Law Mag. 612; Mitchell v. Mitchell, II Vt. 134; Houpt v. Houpt, Wright, 156 ; s. c. 5 Ohio, 539 ; Prince v. Prince, 1 Rich. Eq. 282. [224] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 271 § 270 [322]. In the latter case of Saunders v. Saunders, which was a suit for divorce on the ground of cruelty, a mar- riage in Scotland was pleaded, and the entry in the Scotch register offered as an exhibit. On the question of admitting the libel, Dr. Lushington observed : " Now I apprehend that some difficulty will necessarily arise from tiie admission of this exhibit, for these registers are not kept by any official person. [^Robertson. — These certificates have always been received in evidence by the courts in Scotland.^] You must be aware, that banns are not proclaimed in one case in fifty in Scotland ; and it does appear to me, that, this being nothing more than a certificate of the session clerk, and he not being authorized by the law of Scotland to keep a regis- ter, when we come to the proof of this marriage we shall have much difficulty in establishing it upon this docunient. You must have the evidence of persons who were present at the marriage, for I do not think that I shall receive this cer- tificate. The fact of marriage, in these proceedings and in actions for criminal conversation, must be proved in a differ- ent manner from a marriage in all other cases whatever. I am not aware that there is any law establishing a Register of marriages in Scotland." ^ § 271 [323]. In a criminal suit for incest, before the same judge, in the Consistory Court of London, some observations fell from him which might lead tp the inference, that the proof of marriage varies with the tribunal in which it is offered. But if there are rules of evidence peculiar to the Ecclesiastical Courts, they can have no peculiar force else- where ; for it is a general truth, that whatever evidence will establish a given fact in a given issue before one tribunal, will do the same, under like circumstances, before another. Indeed, it must be so while the law is a science, and judicial proceedings are carried on to ascertain facts. The question 1 Tait on Evidence, .^3. ' Saunders v. Saunders, 10 Jur. 143, 144. The home registry of an India mar- riage was admitted in Katcliff ». Katcliff, 1 Swab. & T. 467. See Vol. I. § 460 etseq. VOL. II. 15 [ 225 ] § 272 GENERAL PRINCIPLES OF PROCEDURE. [BOOK HI. was one of pedigree, involving the proof of marriage ; and the learned judge said : " In considering, further, whether I am entitled to dispense with the production of the register, I must look to the practice of the court in which I am sitting ; and it has been the practice to require the production of the register where it could be obtained, and I should be reluctant, unless necessity compelled me, to relax the rule. I must however observe, that I am satisfied that a register is not to be considered the best evidence of a marriage, nor has it eyer been so considered in the books and authorities on the question. The rule respecting best evidence is, that you are not allowed, where there is evidence of a superior character, to give inferior evidence, unless you account for the non- production of the best- evidence ; the effect of which is to exclude all other evidence, till the absence of the best evi- dence is accounted for. But I am of opinion, that the register is not, in contemplation of law, the best of evidence, for these reasons : first, that registration is not necessary for the marriage itself; secondly, that no error or blunder in the register could affect the validity of the marriage ; and, thirdly, that registration is not like an agreement or a deed in writ- ing, and the contents of which cannot be proved by vivd voce evidence, but it is a mere record afterwards of what has been done ; and no doubt a very important record to those who enter into the compact ; but it is a mere memorandum of the compact they enter^into, not the compact itself. I am encouraged in this opinion by the course of practice in the courts of law, which consider, that, in order to establish a marriage, the evidence of any one person present at the mar- riage is sufficient, without calling for the register at all." ^ § 272 [324]. On a review of the authorities, therefore, we find ourselves as far from coming to a satisfactory conclu- sion, as if no authorities concerning the proof of marriage in matrimonial causes existed. Let us, then, inquire how the question stands on principle, and on those doctrines of the 1 Woods V. Woods, 2 Curt. Ec. 516, 7 Eng. Ec. 181, 184. [226] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 273 law of evidence which have been applied to the proof of mar- riage in other issues. This is not the place to re'view the cases decided on other issues, and the principles governing those cases, — that work was performed in our first volume ; but let it here be stated, that such an examination led us, in our first volume, to the following result : When parties are living together as husband and wife, the legal presump- tion, favoring innocence, is, that they are persons married to one another, and not persons living in the violation of mo- rality and decency and law. But when the issue, to be de- cided in the case, is such as to show that the one against whom it is decided had violated morality and decency and law if tlie otl^er party were married to a third person, then no presumption of such marriage can arise simply from co- habitation as husband and wife. Thus, if a man is sued in an action of criminal conversation, and the evidence is, that the plaintiff lived in the way of marriage with a particular woman, and the defendant had sexual intercourse with the same woman, plainly either the plaintiff or the defendant has violated morality and decency and law ; but the court will not suffer it to be inferred from this balanced presumption, which of the parties is innocent, and which is guilty. There- fore in this issue, and in the issue which rests on the same reason in an indictment for adultery, there must be direct proof of the marriage, in distinction from this presumptive evidence.^ Where the direct proof is required, the expression of the courts sometimes is, that a fact of marriage must be established, — an expression neither very apt in itself, nor always well understood by those who have used it. § 273 [325]. Applying the distinction stated in the last section to the divorce suit, we have the following result :- If the allegation is of adultery, the marriage cannot be sufii- ciently inferred from the matrimonial cohabitation of the parties to the suit ; though with the added reputation of their 1 See also "Vol. I. § 444 and other sections in the same connection ; Clayton v. Warden, 5 Barb. 214, 4 Comst. 230 ; Holmes v. Holmes, 6 La. 463. [227] § 274 GENERAL PRINCIPLES OF PROCEDURE. [BOOK UL being married persons, which reputation follows merely as a shadow from the fact of their dwelling together ; because the same benign presumption of law which would infer, from this living together, an actual marriage, in order to prevent the inference of an offence having been committed, would in like manner and for the same reason infer a marriage between the defendant and the particeps criminis ; which lat- ter influence would conflict with and neutralize the former. Therefore plainly, upon principle, what is called an actual marriage must be proved in this issue. § 274. The general doctrine indicated in the last section is fully sustained by a late California case. There it was held, that, in a divorce suit founded on adultery, the marriage will not be inferred from matrimonial cohabitation, with the rep- utation of being married persons, where the result of such inference is to prove the defendant guilty of polygamy. It was a case in which the defendant had been married to the al- leged particeps criminis. Said Cope, J. : " The general rule, that in actions of this nature the marriage may be inferred from the cohabitation of the parties, we do not understand to be applicable. We cannot indulge this inference without presuming that the defendant has been guilty of the crime of bigamy ; and the fact that it involves such a presumption is sufiicient to repel it. In the absence of criminative proof, it is never to be supposed, as a matter of legal presumption, that a person has violated the criminal law ; and the presump- tion in favor of innocence, says a learned writer, is not con- fined to proceedings instituted with a view of punishing the supposed oSence, but holds in all civil suits where it comes collaterally in question." And the court further deemed this result not to be prevented by the statute, which, as the judge observed, " provides, that in prosecutions for bigamy it shall not be necessary to prove either of the marriages by the regis- ter or certificate thereof, or other record evidence, but tliat the same may be proved by such evidence as is admissible to prove a marriage in other cases." The effect of this stat- ute was merely to dispense with the record as evidence. The [ 228 ] CHAP. XV.J GENERAL VIEW OF DIVORCE SUIT. § 276 judge further added : " The clause providing that the mar- riage may be proved by such evidence as is admissible to prove a marriage in other cases, does not derogate from this view ; for in other cases there is no uniform rule upon the subject." ^ § 275 [325]. Whether, in cases of cruelty, there must be proof of this marriage in fact, depends perhaps on the ques- tion, whether, within the meaning of our rule, acts of cruelty are to be regarded, like acts of adultery, as violations of morality and decency and law. Lord Stowell seemed to consider them to be so ; for, in pronouncing his masterly judgment in Evans v. Evans, which was a suit for cruelty, he said : " The case indeed is civil, as has been repeatedly ob- served, but the facts undoubtedly are criminal." ^ On the other hand, if they are regarded as criminal, are they more so, or less, if the parties are married, than if they are not? Be- cause, though they should be deemed criminal, if their crimi- nality was not connected at all with the fact of the marriage, it could not enter into the consideration of the question. Then, in the suit for desertion, the evidence of marriage, de- rived from the former cohabitation of the parties, must be greatly weakened by the subsequent desertion. But we need not speculate where the lamp of judicial authority goes not before. § 276 [326]. In some of the United States, legislation has somewhat relieved the courts of any technical rules, by pro- viding, that, in all causes of divorce, evidence of cohabitation and repute, and other like circumstantial testimony, shall be competent. On this matter, however, the reader is referred to some observations to be found in our first volume.^ 1 Case V. Case, 17 Cal. 598, 600, 601, 602. 2 Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 313. In Massachusetts, though there is no direct reported decision, I have understood it to have been always the custom of the courts to require the marriage, in divorce cases, to bo proved in the same way as in indictments and actions for criminal conversation, until Stat. 1840, c. 84, established another rule. See also ante, § 268, 270. sjVol. I. §543-545. [ 229 ] § 278 GENERAL PEINCIPLES OF PEOCEDUEE. [BOOK III. VI. The Proofs and Witnesses. § 277 [327]. Under the present sub-title, we shall mention only certain points ; because, in other connections, we exam- ine the evidence pertaining to specific subjects treated of. In a suit for nullity of marriage, by reason of a former marriage still subsisting, the person with whom such former marriage was contracted cannot be a witness to prove it.^ § 278 [328] . The plaintiff, let us observe as a general point, must establisli the offence which he alleges. In England, all issues of fact as well as of law were tried by the court, while these causes belonged to the ecclesiastical tribunals; but now, under Stat. 20 & 21 Vict. c. 85, § 28, 86, the court has a discretion always to submit questions of fact to a jury, and in some circumstances is compelled to do so, if either party requests. Generally in the United States, the court used to try the issue in divorce causes ; but, in consequence of legislation, this issue is in many of the States submitted to a jury, as in a suit at common law. In respect to the trial by the court. Dr. Lushington once observed : " Discharging the united functions of judge and jury, it is not sufficient for the court to have a moral conviction of the guilt of the party : it must be satisfied that such conviction is founded on legal evidence, applicable to legal charges." And in applying these observations to the pleadings and proofs before him, he added : " Looking at these facts, I am compelled to say, that the proof, judicially considered, is not sufiBcient, in my opin- ion, to support the charge. Moral conviction is the opinion of a jury without a judge ; judicial conviction ought to com- bine both. I must have adequate legal proof, and I am not satisfied that this is adequate. Many cases have occurred, and frequently will occur, in which mere opinion may be one 1 Cobbe V. Garston, Milward, 529. And see Searle v. Price, 2 Hag. Con. 187 note, 4 Eng. Ec. 524. [230] CHAP. XV.] GENEKAL VIEW OF DIVORCE SUIT. § 280 way, but judicial decision the other." ^ It maybe observed, that cases of this kind itsed more frequently to arise in Eng- land than they do in the United States ; because here we are not embarrassed by the rule requiring the concurrent testi- mony of two witnesses, or of one with corroborating circum- stances,^ — which rule is now probably abolished in England by Stat. 20 & 21 Vict. c. 85, § 48, the words of which are : " The rules of evidence observed in the superior courts of common law at Westminster shall be applicable to, and ob- served in, the trial of all questions of fact in the court " now established for the investigation of these questions. Yet here, as the plaintiff must prove his case, the judge, where the trial of fact is by him, must be affirmatively satisfied, by the legal evidence before him, of the defendant's guilt, or he cannot proceed to the decree.^ And if the plaintiff sets up a false case, the suspicions of the judge will be particularly aroused.* So, while " allegation without proof passes for nothing, proof without allegation passes for nothing. This is the rule in reference to all proceedings in court." ^ § 279 [329], It is hardly necessary to state, that, where a cause 0^ divorce has occurred, the marriage is not dissolved thereby, but remains in full force until the sentence of the court declares its dissolution.® § 280 [330]. One general observation may be made con- cerning witnesses in these suits. The witnesses are often the relatives, friends, or dependents of one or both of the parties ; and so they have usually a strong feeling, perhaps a prejudice, in favor of one or the other of them. Still, their testimony is not to be therefore rejected ; ^ but, in weighing 1 Caton V. Caton, 13 Jur. 431, 432, 433. 2 Atkins V. Atkins, Vol. I. 5 729, note. * Friend v. Friend, Wright, 639. And see Brainard v. Brainard, Wright, 354. * Dunn V. Dunn, 2 Philiim. 403, 1 Eng. Ec. 280, 285. 6 Eoy V. Foy, 13 Ire. 90, 95 ; Johnson v. Johnson, 4 Wis. 135. « Wells V. Thompson, 13 Ala. 793. ' Lockwood V. Lockwood, 2 Curt. Ec. 281, 282, 7 Eng. Ec. 114, 115. [231] § 281 GENERAL PRINCIPLES OF PEOCEDURE. [BOOK IH. it, the court will take into consideration all the^circumstances by which it may be affected. This subject has received the frequent animadversion of the English judges ; and they have considered, that, in matters of opinion, such witnesses are to be distrusted ; in matters of fact, to be credited. The pre- sumption is, that near relatives will be biased toward those to whom they are related, servants and dependents toward those by whom they are employed. In respect to the chil- dren of the parties, no such presumption arises either way, but they are liable to bias and partisanship.^ § 281. The foregoing, somewhat detached points, are all which it was deemed necessary to be inserted in this connec- tion, in the earlier editions of this work.' Something more should be added here. As already intimated, one witness uncorroborated was not received as sufficient in the ecclesi- astical courts to establish any fact ;^ as, for instance, to prove a charge of adultery.^ But in civil ecclesiastical suits, which class includes divorce suits, the defendant was, as already ex- plained,* obliged to answer under oath the plaintiff's allega- tions, — the object of the answers being to benefit the party requiring them, and, in the words of Sir John Nicholl, " to save the necessity of taking evidence " ; and, in cases other than divorce, no witnesses are necessary to corroborate the answers, and the court may proceed to sentence upon them alone.^ " The right of the party to exact answers depends on the form of proceeding. If the suit be prosecuted by articles [that is, if it be a suit criminal in form], on no 1 Lockwood V. Lockwood, 2 Cart. Ec. 281, 289, 7 Eng. Ec. 114, 118; Saunders V. Saunders, 5 Notes Cas. 413, 417, 1 Robertson, 549, 555 ; D'Aguilar ». D'Agui- lar, 1 Hag. Ec. 773, 782, 3 Eng. Ec. 329, 335 ; Dillon tf. Dillon, 3 Cart. Ec. 86, 102, 7 Eng. Ec. 377. And see The State v. Nash, 8 Ire. 35; Cioccio v. Cioccio, 26 Eng. L. & Eq. 604, 613, 1 Spinks, 121 ; Chesnutt v. Chesnult, 1 Spinks, 196; s. c. mm. C. V. C. 28 Eng. L. & Eq. 603. 2 2 Burn Ec. Law, 238, tit. Evidence. 2 Evans v. Evans, 1 Robertson, 165. • Ante, § 217. " Glutton V. Cherry, 2 Phillim. 373, 385 ; Morgan v. Hopkins, 2 Phillim. 582, 584; Clarke w. Douce, 2 Phillim. 335, 339; Saunders v. Saunders, 11 Jar. 738, 1 Robertson, 549. [232] CHAP. XV.] GENERAL VIEW OF MVOECE SUIT. § 282 account can answers be at all exacted. In a civil cause, a contrary rule prevails : answers are due ; but engrafted on that rule is this exception, that the party giving in his answers is entitled to object to so much of a plea as may crim- inate himself." Therefore where the suit was for divorce on the ground of adultery, the learned judge held, that the defendant wife was not bound to answer to matters alleged, wliich, though not criminatory on their face, might by possi- bility furnisli a link in the chain of evidence against herself.^ Tlie answer is evidence only when read as such by the opposite party, who may, if he pleases, decline to read it altogether;^ though, under peculiar circumstances, the court will, of its own motion, look into tlie answers.^ § 282. Now, the common-law rule does not i-equire two witnesses, or one witness with corroborating circumstances, to establish any fact ; and no case has ever occurred in tliis country, and found its way into the published reports, where- in this doctrine of the ecclesiastical courts has been enforced. Neither is there any case wherein the personal answers of the parties to each other's allegations, considered purely as matter of evidence and not of pleading, and concerning the main matter of the cause, have been required to stand in the place of the proofs by witnesses. How it is in respect to the alle- gation of faculties, and the like, we shall consider in another chapter. When the proceeding is in equity, and the defendant answers the bill, the effect of such an answer depends upon principles not necessary to be here particularly discussed.* In England at present, by force of statutes, the parties can 1 King V. King, 2 Robertson, 153. And see Schnlters v. Hodgson, 1 Add. Ec. 105 ; Dysart v. Dysart, 5 Curt. Ec. 543 ; Simmons v. Simmons, 1 Robertson, 566. " Oliver v. Heatlicote, 2 Add. Ec. 35, 41 ; Saunders v. Saunders, 11 Jur. 738, 1 Robertson, 549. 8 Dalrymple v. Dalrymple, 2 Hag. Con. 54, 127; Best v. Best, 2 Phillim. 161, 169. * See Moyler v. Moyler, 11 Ala. 620 ; Hughes v. Hughes, 19 Ala. 307 ; Rich- mond V. Richmond, 10 Yerg. 343 ; Mosscr *. Mosser, 29 Ala. 313 ; Miller v. Miller, Saxton, 386. [233] § 284 GENERAL PKINCIPLES OF PROCEDURE. [BOOK ID. respectively take the stand as witnesses in divorce causes ; yet neither one can compel the other to testify to adultery, or otherwise to criminate himself.^ And there are some of our States in whicli a like result comes through recent legis- lation. § 283. In Maine, it having been provided by statute, that " no person shall be excused or excluded from being a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same, as party or other- wise," except, &c. (the exceptions not being important to the point), the court held, that the libellant, in a divorce cause, could not be a witness for himself under this statute. It was observed by the judge, that the common-law disqualification of husband and wife to be witnesses against each other, rests upon other principles than " interest in the event of the suit, as party or otherwise." " Its foundation is in the public good. It strikes deeper than mere questions of interest, and is based upon reasons of public policy." ^ So in Vermont, where a statute provided, that " no person shall be disqualified as a witness in any civil suit or proceeding at law or in equity,' by reason of his interest in the event of the same as a party or otherwise," husband and wife were held not to be com- petent to testify on the main issue in a divorce suit brought by the one against the other. It was deemed that the statute did not remove the rule of policy on which the exclusion prop- erly rests.^ § 284. In Massachusetts, it was provided by Statute 1857, c. 305, re-enacted Gren. Stats, c. 131, § 14, that the parties might be witnesses in civil actions and proceedings, including among the rest " divorce suits (except those in which a divorce is sought on the ground of alleged adultery of either party)" ; and it was added, that " in any such case 1 And see, on this subject, Pyne v. Pyne, 1 Swab. & T. 178. 2 Dwelly V. Dwelly, 46 Maine, 377, opinio'a by May, J. 2 Manchester c: Manchester, 24 Vt. 649. [234] CHAP. XV.] GENERAL VIEW OF DIVOECE SUIT. § 285 in which the wife is a party or one of the parties, shfe and her husband shall be competent witnesses for and against each other, but they shall not be allowed to testify as to pri- vate conversations with each other." And it was observed by Dewey, J., in giving interpretation to this latter clause : " Mere abusive language, addressed by one party to the other, when they were not in conversation, might be the subject of testimony by the party to whom it was addressed, and would be competent evidence." ^ § 285 [447]. In cases of adultery, the custom of the eccle- siastical courts has been to interrogate the witnesses respecting their belief, whether, at the times testified to by them, adul- tery was in fact committed. The reason assigned is, that the • judge, though not bound by the opinion given, has a right to know what the opinion is, and sometimes he places reliance upon it.^ Yet, if a witness stops short, and declines or omits to state his belief of the consummation of the offence, the judge, put on his guard to see whether there is any ground for the witness's scepticism, draws his own conclusion, which, instead of the witness's, must prevail.^ This course is a wide departure from ordinary rules of evidence ; and there is no reported instance of its having been followed in any of the American tribunals. Perhaps it may be deemed a peculiarity, like that of requiring more than one witness to the principal fact,* attaching to the ecclesiastical courts, rather than to the subject-matter, and not to be followed else- where;^ or perhaps it may do when the judge is to decide upon the effect of the testimony, while it would be unsafe to submit such evidence to a jury.^ ^ French v. French, 14 Gray, 186, 188. ' Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ec. 4.5,47, 51. 3 Elwes V. Elwes, 1 Hag. Con. 269, 4 Eng. Ec. 401, 405. And see Atkinson v. Atkinson, 2 Add. Ec. 484, 2 Eng. Ec. 387. * Simmons v. Simmons, 5 Notes Cas. 324, 11 Jur. 830; Evans v. Evans, 1 Robertson, 165. » See 2 Greenl. Ev. 3d ed. 5 42 ; Atkins v. Atkins, Vol. I. § 729, note ; Dunlap V. Dunlap, Wright, 559; Sheffield v. Sheffield, 3 Texas, 79. ° And see Cameron v. The State, 14 Ala. 546. In the case of Leary v. Leary, [235] § 287 GENERAL PRINCIPLES OF PROCEDURE. [BOOK III. § 286. In a Pennsylvania case, Lowrie, C. J., observed : " Tlie mere opinions of tlie witnesses about the probable effect of the husband's conduct on the wife were, of course, improper evidence." ^ Upon an indictment for adultery before the Ala- bama court, it was held, that the witnesses must depose to facts, and cannot give an opinion as to the guilt of the party charged with the offence. Yet the court intimate, that pos- sibly a different rule may prevail in divorce cases. " The opinion of the witnesses might," said the judge, greatly as- sist the chancellor in determining whether the offence was con- nived at, or whether there had been a condonation." ^ It is difficult, however, to perceive how the opinion of a witness can be any more relevant to the issue of connivance, or con- donation, than to the issue of adultery itself. And there can be little doubt, that the true rule is to accept the opinions of witnesses in these cases as in any other, only when they testify as experts, and the like. § 287. In this class of suits it sometimes becomes neces- sary to introduce evidence of a nature somewhat indelicate ; and, though its indelicacy cannot be pointed to as a ground of exclusion where the ends of justice will best be subserved by receiving it, yet each practitioner, treading along the hne which separates the necessarily from the unnecessarily indeli- cate, will be careful to avoid stepping on the forbidden side. In a Florida case in which this principle was involved, it was said by Baltzell, C. J. : " Although courts may not refuse to consider details, however offensive and disgusting, when such become necessary in the course of investigation, yet they may and should always require the examination of wit- nesses to be conducted in a spirit of due delicacy, avoiding vulgar and obscene language." ^ 18 Ga. 696, some opinions of the witness were received, but not to the full extent indicated in the ecclesiastical practice. 1 Richards v. Richards, 1 Wright, Pa. 225, 228. 2 Cameron v. The State, 14 Ala. 546, 551, .opinion by Collier, C. J. ^ Abernathy v. Abernathy, 8 Fla. 243, 259. [236] CHAP. XV.] GENERAL VIEW OF DIVORCE SUIT. § 288 § 288. There are, pertaining to the evidence, various other points of a sufficiently general nature to find place here ; but, the reader having been already apprised that the courts follow, in divorce causes, those general rules of evidence which guide them in other matters, except when the nature of the particular question requires a departure from those rules, it is deemed best this chapter should be here brought to a close. [237] CHAPTER XVI. THE SUIT FOE NULLITY. § 289 [262]. Suits for divorce from the bond of matrimony, for separation or divorce a mensd et thoro, and for nullity of marriage, are governed substantially by principles of uniform applicability ; and those principles have been and are to be unfolded in other connections. Some considerations, however, relating specially to this suit of nullity, will now be stated. Already it has been mentioned in these pages, that, in Eng- land, any person having an interest in a supposed marriage, may promote a suit to test its validity.-^ Whether the right in this country extends beyond the mere parties to the mar- riage appears to be an open question. And though a void marriage needs no sentence to make it null, practically a sentence of nullity in respect of such a marriage is often of great importance to the parties and to the commxinity.^ • § 290 [263]. Besides the suit of nullity, mentioned in the last section, the English practice furnishes another proceed- ing, sometimes, yet rarely, resorted to in England,^ called a suit of jactitation of marriage ; which suit accomplishes, in a certain aspect, substantially what is done by a suit of nul- lity. In it the man, for instance, (for it may be carried on by either party,) complains that the woman has maliciously and without authority boasted of being his wife, and prays to 1 Vol. I. h 100. ^ See Wightman v. Wightraan, 4 Johns. Ch. 343, 346 ; Patterson ». Gainea, 6 How. U. S. 550, 592 ; Martin v. Martin, 22 Ala. 86 ; Vol. L § 299, 300. s See 1 Lee, 16 note, 5 Eng. Ec. 289. [238] CHAP. XVI.] THE SUIT FOR NULLITY. § 291 have her enjoined silence respecting such boasting. There are three defences to this suit ; either, first, a denial of the boasting ; or, secondly, an averment of a valid marriage sub- sisting ; or, thirdly, an averment that the plaintiff permitted the defendant to assume the character of husband or wife. Where, and only where, this second defence is made, the suit becomes substantially one of nullity.^ It is a proceed- ing, however, which appears to be unknown in the United States. § 291 [264]. In the United States, as already observed,^ we have never had ecclesiastical courts ; and, before other tribunals can take cognizance of causes ecclesiastical, they must receive statutory authority. Therefore a court of equity cannot entertain jurisdiction to avoid a marriage for impo- tence,^ or for any other like canonical defect. But, in some cases of void marriages, our equity courts interfere under their ordinary powers. Thus, they have inherent jurisdiction over all questions of fraud, mistake, duress, and lunacy ; and, when a marriage is alleged to be void by reason of one of these impediments, they ordinarily entertain the suit for having it so declared. The reason is, that, although where, as in England, there are ecclesiastical tribunals, and perhaps where, in this country, another forum has been provided, equity does not entertain such suits, still the jurisdiction is inherent in the equity court ; slumbering, when it slumbers, only out of deference to the other more appropriate tribunal.* And it has been held, that, if a woman marries a man, the marriage being void because of his having a former wife 1 Bodkin v. Case, Milward, 355; Walton v. Eider, 1 Lee, 16, 5 Eng. Ec. 289; Hawke v. Corri, 2 Hag. Con. 280. 2 Vol. I. § 69, 71. 3 Vol. I. ^ 178^ note. * Perry v. Perry, 2 Paige, 501 ; Wightman v. Wightman, 4 Johns. Ch. 343, 446 ; Bnrtis u. Burtis, Hopkins, 557 ; Clark v. Field, 13 Vt. 460 ; Fomshill v. Murray, 1 Bland, 479, 483 ; Helms v. Franciscus, 2 Bland, 544, 579 ; Ferlat v. Gojan, Hopkins, 478. And see Almond v. Almond, 4 Rand. 662 ; Keyes v. Keyes, 2 Fost. N. H. 553. Query, whether a court of equity can take jurisdiction to declare a marriage null on account of duress. See Hnlings v. Hulings, 2 West. Lavr Joar. 131. [ 239 1 § 293 GENERAL PRINCIPLES OF PROCEDURE. [BOOK IIL living, she can maintain her suit in equity for the rents, profits, and redelivery to her of the property whereof he obtained possession under the marriage ; and that, in this suit, the court will incidentally declare the marriage void.^ § 292 [265]. The South Carolina Court of Chancery, however, refuses to entertain suits of nullity by reason of fraud, though the law of the State has provided no other jurisdiction. "The distinction," observed Dunkin, Ch., sitting in the Court of Errors, " between the authority to declare a marriage null and void, or to grant a divorce, has.no sanction either in reason or authority. The same general principle whicli would authorize courts of equity to declare a contract void for want of consent, would require tliem to interfere in cases of fraud or misrepresentation, and declare the con- tract no longer obligatory on one party when the other had refused to perform the duties imposed by it. But no court, either in England or in the United States, has ever declared a marriage null and void in its inception, which did not at the same time assume, as a necessary incident, the authority to divorce the parties, in England a mensd et thoro, in our sister States a vinculo."'^ The weight of this decision, as one of general law to guide the courts of other States, is greatly impaired by the fact of the judges having misappre- hended the distinction elsewhere taken, and having erred in supposing there were no authorities contrary to their de- cision. § 293 [266]. The statutes of North Carolina give juris- diction to certain courts " in all cases of applications for divorce " ; and, after specifying certain sufficient offences, provide, that they may interfere where " any other just cause of divorce exists." And it is there held, as it is also under similar statutes elsewhere, that, though a sentence of nullity 1 Young V. Naylor, 1 Hill, Ch. 383. See McDonald v. Fleming, 12 B. Monr. 85. ' Mattison v. Mattison, 1 Strob. Eq. 387, 392. [240] CHAP. XVI.] THE SUIT FOE NULLITY. § 294 is not properly a divorce, yet, under this provision, jurisdic- tion may be taken whenever there has been a marriage de facto, to declare it void.^ But in most of the States, statutes regulate this matter of jurisdiction in so clear terms as to leave no room for question. § 294 [267]. While, as already observed,^ a suit for nullity follows substantially the same rules as a suit for divorce, yet, let us here add, it cuts deeper into the soil of consequences than the divorce suit ; because the interests and rights of third persons are more affected by it. The children especially have their legitimacy or illegitimacy irrevocably established by this suit, not by a suit for divorce. Therefore it has been said to be a more highly privileged suit ; ^ while it excites, to even a greater degree, the vigilance and caution of the court.* Yet where a case is sufficiently made out, the court has no discretion, but it must proceed to the sentence.^ It is of no avail, that the defendant is innocent of any intent to do wrong, or that the plaintiff is in fact the more guilty party.® Yet these considerations may have weight with the judge, when a discretionary power is invoked ; therefore, in the ec- clesiastical practice, a cause will not be rescinded after a hearing, to allow the plaintiff to prove the fact of the marriage, the nullity of which he sets up, if his conduct appears not to have been meritorious.^ 1 Johnson v. Kincade, 2 Ire. Eq. 470 ; Scroggins u. Scroggins, 3 Dev. 535 ; Rittcr V. Ritter, 5 Blackf. 81 ; Hamaker v. Haraaker, 18 III. 137. 2 Ante, \ 289. ' Butler v. Butler, Milward, 56, 62. * Haifoid V. Morris, 2 Hag. Con. 423, 4 Eng. Ec. 575 ; Wright v. Elwood, 1 Curt. Ec. 662, 666 ; Wright v. EUwood, 2 Hag. Ec. 598, 4 Eng. Ec. 216 ; Legge V. Durableton, 9 Jur. 144. 6 Cobbe 0. Garston, Milward, 529 ; Vol. I. § 136. s McCarthy v. De Craix, 2 CI. & F. 568, note ; Miles v. Chilton, 1 Robertson, 684. And see Vol. I. § 151, 214, 267, 294, 300, 320, 333. 7 Nokes V. Milward, 2 Add. Ec. 386, 2 Eng. Ec. 356, 365. VOL. II. 16 [241] BOOK IV. THE PLEADING AND ITS ACCOMPANIMENTS. CHAPTER XVII, THE PARTIES AND THE BEINGING OP THE SUIT. Sect. 295. Introduction. ^ 296 - 301. Who may be original Parties in Divorce and Nullity Suits. 302 - 308. The Matter as respects the Incapacity of a Party. 809, 310. Intervention of third Persons as Parties. y 311 - 815. Bringing the Party into Court by Notice. 316-321. Cross-Suits, Suits pending, and taking Advantage of Matter transpired since Suit commenced. § 295. In this chapter the following matters will be brought under review : I. Who may be original Parties in a Divorce or Nullity Suit ; II. The Matter as respects the Incapacity of one or both of the Parties ; III. The Intervention of tliird Persons as Parties ; IV. The Bringing of a Party into Court by Notice ; V. Cross-Suits, Suits pending, and taking Ad- vantage of Matter which has transpired since Suit com- menced. I. Who may he original Parties in Divorce and Nullity Suits. § 296. The plain proposition, which needs no elucidation, is, that the real or supposed husband or wife may be a party [242] CHAP. XVII.] PARTIES AND BRINGING SUIT. § 297 plaintiff or defendant in every suit instituted to declare the marriage void, or to suspend its operation by a decree of divorce a mensd et thoro, or to break the vinculum by reason of an offence against the marriage committed since its institution. And the proposition is true as a general one, that, in none of these suits, can any third persons stand in the place of the supposed husband or wife, so as to prevent the necessity of making him or her a party ; and that, who- ever else may be parties, both husband and wife must be such, the one as plaintiff and the other as defendant. And in some of our States there are statutes which make this result always inevitable. Thus, it has been held in Vermont, on a consideration of the statutory provisions, that it is fatal to a petition for divorce not to be signed by the libel- lant, and for the summons to be signed by a justice of the peace.-^ And in Massachusetts, where it was provided that the libel " shall be signed by the libellant, if of sound mind and of the age of legal consent to a marriage," the courf held, that the libel must be subscribed by the party in person, and it was not sufficient subscribed by attorney, though un- der power conferred in a letter of attorney .^ Plainly, there- fore, the effect of this legislation is to cut off any common- law right, if such existed, in any third person, to bring the suit in such third person's own name. § 297. The practice in the ecclesiastical courts admits of great flexibility in the proceedings, as well in respect to the parties as in respect to other matters. Indeed, this practice 1 Philbrick v. Philbrick, 27 Vt. 786. ^ Gould u. Gould, 1 Met. 382; and see post, § 308. Before the statute was passed, in Willard v. Willard, 4 Mass. 506, the court sustained the libel signed by- attorney, on proof that it was authorized by the libellant, " but cautioned the bar against such a practice in future." In Winslow v. Winslow, 7 Mass. 96, decided also previous to the statute, the libel was signed by a guardian who had been ap- pointed by the judge of probate oyer the libellant as a spendthrift. " The court said it would be mousti'ous to dissolve a marriage upon such an application. It could not be known that the party ever gave his assent to the prosecution. If he is desirous of a divorce, and has sufficient ground to obtain one, he must file his libel in his own name." [243] § 298 PLEADING AND ACCOMPANIMENTS. [BOOK IV. is, as regards this particular quality of flexibility, and con- sequent aptitude to suit itself to the justice of varying cases, far superior to the practice either of the common law or the equity tribunals. According to the report of one case which occurred before an Ecclesiastical Court, the husband was in the East Indies, a minor, and the wife had committed adultery in England ; upon which facts, the father employed counsel, who appeared before the court and " prayed the court to appoint the father of the husband his guardian, for the pui'pose of carrying on the suit on his behalf. He sub- mitted, that, unless the court were to do so, great injury might be sustained by the husband, as the evidence of adultery might be lost." The court granted the prayer of the father, but directed that the case should not proceed to judgment until the son's approbation and confirmation of the proceedings should be obtained.^ § 298. We have mentioned already the point, that, in England, any person having an interest in a supposed mar- riage may maintain a suit, in his own name, to have its nullity declared.^ For example, a father may maintain a suit to declare null the marriage of his daughter, 'even though she is of age.^ In like manner, a sister may proceed to have tlie marriage of her brother declared void as incestu- ous.* It has been laid down in North Carolina, — the suit being in equity, — that, where a marriage is supposed to be void by reason of the insanity of a party, the guardian of such party may bring a bill to have it so declared, either in the guardian's name, or in the name of the lunatic by guar- dian, at his election. But the court seemed to deem the latter course the better one ; " because," in the language of Ruffin, C. J., " upon suspending the commission [of guar- dianship] pendente lite, for the restoration of the party's 1 Morgan v. Morgan, 2 Curt. Ec. 679. 2 Vol. I. § 110; ante, ^ 289. 3 Ray V. Sherwood, 1 Curt. Ec. 193, 1 E. E. Moore, 353, 396, 400. * Faremouth v. Watson, 1 Phillim. 355. [244 J CHAP. XVII.J PARTIES AND BEINGING SUIT. § 300 reason, the case would be proceeded in without the necessity of a supplemental bill by the.lnnatic to procure the benefit of the proceedings as far as they had gone."^ § 299. Where the proceeding is in equity, and the plain- tiff wife, who will be entitled, if she prevails, to a share in her husband's estate or to alimony out of it, suspects her hus- band to have conveyed away such estate or some portion, of it to a third person to defraud her of her rights, she is at lib- erty to join such third person with her husband as defendant. But such third person cannot be the only defendant : the husband must be made a party defendant also ; since the wife would have no right against the third person " until she had established her right against her husband, which she could not do without making him a defendant." ^ There- fore, where a bill was filed by the wife against the husband, for a separation from bed and board by reason of cruel treat- ment, and the assignees of the husband's life interest in the wife's real estate were made defendants, and the husband died before a decree, but the wife failed to make out a case which would have entitled her to a decree of separation if the husband had lived until the hearing, it was held, that the other defendants might have the bill dismissed, as to them, with cost.^ This is plain ; and it seems scarcely less plain on principle, that the suit itself would abate with tlie death of the husband, wherefore no decree could be rendered against the third parties, even though the evidence against the husband was ample. § 300. If a wife has a separate estate, and the husband has squandered it, besides furnishing her ground for a di- vorce, and if the proceeding for a divorce is in equity, she may unite the divorce cause and the other claim for property 1 Crump V. Morgan, 3 Ire. Eq. 91, 102. 2 Foster v. Hall, 2 J. J. Mar. 546, 547 ; McCrocklin v. McCrocklin, 2 B. Monr. 370; Kashaw v. Kashaw, 3 Cal. 312. And see Cropsey ». McKinney, 30 Barb. 47. 3 Sackett v. Giles, 3 Barb. Ch. 204. [ 245 j § 302 PLEADING AND ACCOMPANIMENTS. [BOOK IV. in one bill. Said Handy, J., speaking of the latter claim : " It was certainly a right which .she was entitled to enforce in some form. She could not assert it by an action at law, because she was incapable of suing him at law. Her reme- dy, then, for the recovery of her separate property was in equity, and no reason is perceived why she should not unite her several causes of complaint against her husband in one bill, instead of bringing two suits," &c. " It is justified by the equitable rule of preventing multiplicity of suits." ^ § 301. It cannot be disguised that the foregoing views are inadequate to meet all the difficulties which, under this head, will beset practitioners in the different States. Yet eacli practitioner must study the peculiar jurisprudence of his own State, study its statutes, and study the general course of the courts ; this is required of him under all circum- stances ; and, if he has done this work well, he will have little need of any further help beyond what he will find in these sectiohs. The same observation applies also to what will be brought out under the remaining sub-titles of this chapter. II. The Matter as respects the incapacity of one or both of the Parties. § 302. Whether a wife, proceeding for a divorce, is to bring the suit in her own name, or by her next friend, is a question which depends much upon the local jurisprudence of particular States. In some States, she sues alone ; in other States by her next friend. Likewise, when proceeded against, she defends alone in some States ; in other States, by her next friend. Nothing more will be attempted here than to refer to various authorities on this subject.^ In the 1 Armstrong ». Armstrong, 32 Missis. 279, 292. ' Kenley v. Kenley, 2 How. Missis. 751 ; Hunt v. Booth, Freeman, Missis. 215 ; Richardson v. Richardson, 4 Port, 467 ; Schenck v. Ellingwood, 3 Edw. Ch. 175 • [246-] CHAP. XVII.J PARTIES AND BRINGING SUIT. § 304 English Ecclesiastical Courts, she sues alone, if of full age and of sound mind, not by her next friend.^ § 303. The general principle of law is familiar, that a per- son under age — in other words, an infant — can appear in court only by next friend or guardian.^ And in New York it was held by Chancellor Walworth, that, though, in a suit for divorce from the bond of matrimony, the wife, whether plaintiff or defendant, appears in her own name alone, yet, if she is a minor, she must, like 'all other minors, sue or defend by guardian or next friend. Therefore, where an infant- wife had put in her answer to her husband's bill for divorce from the bond of matrimony by her solicitor, the proceeding was set aside upon her application, and she was permitted to put in a new answer.^ The court of Maine, having afterward occasion to consider this question, decided, that, contrary to the conclusion to which the New York tribunal had arrived, an infant wife, suing her husband for divorce, might bring the libel in her own name, without the intervention of a next friend. The judges deemed, that this New York decision had proceeded upon some peculiarity in the statutes and rules of practice prevailing there, and not upon principles universally applicable in such a case. Still, this Maine adju- dication appears to have rested somewhat upon the local statutes of the State.* In such cases, the English Ecclesias- tical Court seems to have required a guardian ad litem.^ § 304. The questions discussed in the last two sections Shore v. Shore, 2 Sandf. 715 ; Meldora v. Meldora, 4 Sandf. 721 ; Knight v. Knight, 2 Hayw*. 101 ; Ward u. Ward, 2 Dev. Ch. 553 ; Jelineau v. Jelineau, 2 Des. Eq. 45 ; Prather v. Prather, 4 Des. Eq. 33 ; Amos v. Amos, 3 Green Ch. 171 ; Kirby v. Kirby, 1 Paige, 261 ; Wood v. Wood, 2 Paige, 108, 454, 8 Wend. 357 ; Lawrence v. Lawrence, 3 Paige, 267; Rose v. Rose, 11 Paige, 166 ; Thomas p. Thomas, 18 Barb. 149 ; Peltier v. Peltier, Barring. Mich. 19. 1 Herbert v. Herbert, 2 Hag. Con. 263, 269, 4 Eng. Ec. 534, 538 ; Coote Ec. Pract. 320. ■■' Schemerhorn v. Jenkins, 7 Johns. 373 ; Young w. Young, 3 N. H. 345 ; Blood V. Harrington, 8 Pick. 552. 3 Wood V. Wood, 2 Paige, 108. * Jones V. Jones, 18 Maine, 308. ' Barham v. Barham, 1 Hag. Con. 5. [247] §305 PLEADING AND ACCOMPANIMENTS. [BOOK IV. are so teclmical in their nature, and depend so much upon mei-e rule, and so little on general principle, that we shall find very little scope for the exercise of unfettered legal rea- son upon the subject. There' is no general principle of law -T- nothing except technical rule — which should stand in the way of a wife of full age proceeding against her husband, in her own name alone. Thus stands the matter freed from fetters. Whether a judge will feel bound to put the fetters on, is a question which must depend upon special considerar tions, not necessary to be discussed here. There is, in rea-r son, some propriety in requiring an infant to appear in court by guardian or next friend, and not in person; because the infant is deemed, in law, not fully competent to manage, his; own business. But surely, if the infant has been permitted by the law to marry, and to take upon him or her the fuILre- sponsibilities of husband or wife, reason would seem to dictate, that mere infancy should no, more preclude such a person from, seeking a divorce, or defending a divorce suit, without a next friend, than it did the courtship and marriage without suqhi friend. If the law would be consistent, it should make an exception here to its general rule, which forbids infants to, carry on and defend. suits in their own names alone. §,805. When, one of the parties is of unsound mind, the question as to the proceeding becomes a. complicated one of law and of practice. Suppose a man commits a crime in his sane state, and then becomes insane, it is a perfectly well established proposition in fhe criminal law, that he cannot, during the continuance of the insanity, be tried and convicted for the crime. And in a late English case, the court refused, to allow a husband to proceed against his wife, who was a lunatic, for a dissolution of their marriage on the ground of adultery alleged to have been committed by her previous to her lunacy. " This case," said the Judge Ordinary, Cress- well, " is very different from one wliere a lunatic is the peti- tioner.^ .... The question is, whether the petitioner should 1 The counsel had referred to Portsmouth v. Portsmouth, 1 Hag. Ec. 355 ; Par- [ 248 ] CHAP. XVII.J PARTIES AND BRINGING SUIT. § 306 i be allowed to proceed under the circumstances. It will be a hard case upon the petitioner if he is not allowed to do so. But it will also be a hard case upon the respondent, who is not able t6 take part in the proceedings, if he is allowed. I have made inquiry if there had been any case in the Ecclesiastical Courts under similiar circumstances, which could be ,an au- thority for me in giving my decision. I am told by Dr. Bayford, that there was one which he himself argued in the Court of Arches. It is not reported ; but he recollects that the court decided that a suit for divorce a mensd et tJioro could not be maintained against a lunatic. I cannot allow the petitioner to proceed in the present suit," which, the reader remembers, was a suit for the dissolution of the mar- riage.^ We have already seen,^ that the same rule as to the intent, whereby we determine whether an act of carnal inter- course is indictable or not, applies in divorce suits, when we inquire whether it will constitute foundation for the divorce. This decision of the English tribunal seems to hare drawn within -the circle of the divorce law still another principle from our criminal jurisprudence. § 306. At the same time, if one in a lucid state has com- mitted a breach of matrimonial duty, and the breach is not known to the other party until the delinquent one becomes insane, there would seem to be no special reason why, under proper safeguards to .prevent injustice from being done to a person who cannot exercise any discretion in the defence, the suit should not be permitted to proceed. If a person be- comes indebted to another in a .sum of money, and then becomes insane, the creditor is permitted to collect his money by suit ; and the interests of a party in a marriage would seem to be of as much value as those of a creditor, unless the sum was very large. Still, if a husband, finding his wife insane, should proceed against her to obtain a divorce for a cause which he knew as much about before she became in- nell V. Painell, 2 Hag. Con. 169, 2 Phillim. 158; and, for analogies, to Barham v. Barham, 1 Hag. Con. 5 ; Beauraine v. Beauraine, 1 Hag. Con. 498. 1 Bawden v'. Bawden, 2 Swab. & T. 417, 418, 419. ^ Vol. I. § 709. [249] § 307 PLEADING AND ACCOMPANIMENTS. [BOOK IV. sane as he did afterward, he should not in reason be permit- ted to go on.^ § 307. When we come to inquire whether an insane person can maintain a suit for divorce, we are met by still other difficulties of principle. Where the suit is to obtain a mere separation a mensd et thoro, there is no reason why it should not be allowed ; and that it is Jallowable, is established law in England.^ In like manner, if an insane person is entrapped into the form of marriage with another person, reason would seem to indicate that the guardian or committee of such in- sane person should be permitted, during the continuance of the insanity, to institute and carry on a proceeding to have the formal marriage declared void ; and that this may be done, seems to be established law with us.^ In like manner, probably the suit for nullity may, in these and all similar cases, be carried on against the insane party by the sane one ; though, in such cases, if the sane plaintiff had practised a fraud upon the insane defendant, it would hardly accord with correct principle to permit the suit to proceed.^ But when the object of the proceeding is to obtain a divorce from the bond of matrimony for a cause which occurred subsequently to the marriage, and the insane person knew of the cause before the insanity came on, yet did not choose to proceed by reason of the cause, it is not apparent how the committee of the insane person can choose to dissolve a marriage which the ward, in his sound mind, chose to let 1 See Broadstreet v. Broadstreet, 7 Mass. 474, and Mansfield v. Mansfield, 13 Mass. 412, where the insanity of the defendant was deemed to be no obstacle to the suit for dissolving the marriage by reason of adultery. This might possibly have been in consequence of the provisions of some statute ; but I think not, as I find none. A provision relating to the defence, corresponding to the one cited ante, 4 296, and post, § 308, first appeared in the Revised Statutes in 1836. See Com. Eep. pt. 2, p. 121. And see Montgomery v. Montgomery, 3 Barb. Ch. 132 ; post, 4 _308. ^ Ante, § 305 and the cases there cited. 2 Ante, k 298 ; Crump ». Morgan, 3 Ire. Eq. 91 ; Brown v. Westbrook, 27 Ga. 102. ' And see Clement v. Mattison, 3 Rich. 93. * Montgomery v. Montgomery, 3 Barb. Ch. 132 ; Johnson v. Kincade, 2 Ire. Eq. 470. [ 250 ] CHAP. XVII.] PARTIES AND BRINGING SUIT. § 308 stand ; for divorce is one of those rights which the party can exercise or forbear to exercise as he pleases. If the breach occurred or was first known after the insanity came on, the guardian might well presume that the ward would desire the legal consequence to follow. § 308. It is hardly necessary to say, that, in these cases of insanity, the insane person cannot appear to prosecute or defend in his own name : it must be by guardian, guardian ad litem, or committee. How precisely this shall be done, must depend somewhat upon local statutes and jurispru- dence ; and, in a general way, the reader will derive help from a consultation of the cases cited to the accompanying sections.^ In one of the early Massachusetts cases, " Wilde," says the report, " suggested to the court that the [defendant] wife was insane at the time mentioned in the libel, and that she had continued so to this time ; and, expressing some doubt as to the mode of his appearing in her behalf in the cause, the court said he should be admitted to plead in her name. He pleaded that she was not guilty of the crime alleged ; and, the insanity being proved to the satisfaction of the court, tlie libel was dismissed." ^ The pi-esent statute of Mas- sachusetts provides, that'" every libel shall be signed by the libellant, if of sound mind and of legal age to consent to mar- riage ; otherwise it may be signed by his or her guardian, or by any person admitted by the court to prosecute the same as next friend of the libellant." ^ 1 Ante, § 298, 305 - 307. And see (not a divorce case) Aldridge v. Montgomery, 9 Ind. 302 ; Shelf. Mar. & Div. 200; Coote Ec. Pract. 314 ; Carpenter v. Carpen- ter, Mil ward, 159, 161. 2 Broadstreet v. Broadstreet, 7 Mass. 474. But see Mansfield v. Mansfield, 13 Mass. 412, in which case, "it being suggested by a friend of the court, that since the commission of the crime the husband had become insane, the court ordered the default to be set aside, and the libel to be continued ; observing to the proctor for the libellant, that, if so advised, she might, during the vacation, procure the appointment of a guardian to her husband in the Probate Court, and, upon the appearance of such guardian in the suit, further proceedings might be had ; and if sufficient cause appeared, a divorce might be decreed." 2 Gen. Stats, c. 107, § 16. See ante, 5 296 and note. [251 J ^ 310 PLEADING AND ACCOMPANIMENTS. [BOOK IV. III. The Intervention of Third Persons as Parties. § 309. It is established practice in the ecclesiastical courts, that, though a suit has been commenced between two prin- cipal parties, if any third person has or thinks he has an interest in the suit, he may apply to the court to intervene, — in other words, to become a party for the protection of his interest, — and, if his interest is admitted or proved, his prayer will be granted;^ "as, for instance," says Law, "in causes of matrimony If a man takes out proceedings against a woman in a cause matrimonial, and the woman has either solemnized or contracted a marriage with another man, such other man, or third party, may, if he pleases, inter- pose in the said suit, to protect his own rights, in any part of the pi'oceedings, even after the conclusion. It matters not whether he appears in aid, or in opposition, to the woman. Neither is the case altered by any previous notice he might' have of the pending suit, and of the plaintiff's having pro- ceeded to proof." 2 There are various nice questions as to the practice in intervention, as to who may intervene, and the like ; but, should such a question become important, the reader can easily look it up in the books of the ecclesiastical law.^ § 310. To what extent this practice of intervention may be resorted to in this country is a matter which does not ■■ Law's Forms, 70; Shelf. Mar. & Div. 579 ; Donegal v. Chichester, 3 Phillim. .586; Schoolmasters of Scotland u. Fraser, 2 Hag. Ec. 613; Wood v. Medley, 1 Hag. Ec. 645. ' Law's Forms, 71. 8 See, besides the authorities already referred to in this section, Ray v. Sherwood, 1 Curt. Ec. 173, 1 E. F. Moore, 353 ; Montague v. Montague, 2 Add. Ec. 372 ; Fare- month V. Watson, 1 Phillim. 355 ; Hughes v. Turner, 4 Hag. Ec. 30 ; Kipping v. Ash, I Robertson, 270 ; Pertreis v. Tondear, 1 Hag. Con. 136 ; Dalrymple v. Dal- rymple, 2 Hag. Con. 54, 137, note ; Clement v. Rhodes, 3 Add. Ec. 37 ; Braham V. Burchell, 3 Add. Ec. 243, 256; Brotherton v. Hellier, I Lee, 599; Wright ». Rutherford, 2 Lee, 266 ; Shelf. Mar. & Div. 487. [ 252 ] CHAP. XVII.] PARTIES AND BRINGING SUIT. § 311 seem clear on the authorities. In a Vermont case it was adjudged, tliat, on a petition for a divorce, wliere real estate held by the husband in right of liis wife had been levied on by the husband's creditors, those creditors could not appear and resist the petition on a suggestion of collusion between the parties, and an attempt by them to defeat tiieir rights. It was very properly intimated, however, that the legal adviser* of the creditors, or any other person, miglit, as amicus curice, malie to the court a suggestion of collusion.^ This is plainly a case in which, if the English ecclesiastical practice had been followed, the interven,tion would have been permitted. And the writer can only express tlie hope, that a practice so beneficial, and so entirely in accord with the general policy of our divorce laws, will find better favor in the American tribunals hereafter. The judge, we have seen,^ is in these cases under obligation to protect the interests of the public, — why, then, should not persons who have special interests be permitted to protect themselves ? IV. The Bringing of a Party into Court by Notice. § 311. It is a principle of natural justice which is acted upon by every court, that no person should be injured or dis- turbed in any of his interests, by any decree or other pro- ceeding, without being notified of the proceeding, and per- mitted to come in and object. This principle guides the courts and the legislatures in all our States, in divorce mat- ters. But to minutely trace the statutory laws of the several States on the subject, or even the decisions of the courts, depending as they do on these particular enactments, would be unwise ; yet a reference, in a note, to some of the cases may be found convenient.^ If there has been no service of 1 Stearns v. Stearns, 10 Vt. 540. = Ante, § 236. 3 Lyon V. Lyon, 21 Conn. 185; Smith v. Smith, 20 Misso. 166; Woods v. Woods, 2 Curt. Ec. 516 ; Floyd v. Black, Litt. Sel. Cas. 11 ; Smith ». Smith, 6 Mass. 36 ; Mcliae v. Mattoon, 13 Pick. 53 ; Farwell v. Smith, 12 Pick. 83 ; Hobart [253] ^ 312 PLEADING AND ACCOMPANIMENTS. [BOOK IV. process, it is error to render judgment.^ In New York, it was held by the former chancery court, that personal service of a subpoena in a divorce cause, upon a defendant confined in the State prison, was regular.^ It was held, under the pro- visions of the Arkansas statute, that a service of a subpoena to answer to a bill for divorce, by simply reading the sub- poena to the defendant, is not sufficient.^ In Massachusetts, a libel was held not to be sufficiently served by leaving an attested copy of it at the defendant's usual place of abode, when it appeared that the defen'dant was not in the house at the time, and had not been within the country since the service.* And plainly, whatever be the general form of words used in a statute, if the respondent is living within the jurisdiction of the court, and actual personal notice can be conveyed* to him, the judge should not proceed to the hearing, in a defaxilted case, until he is made fully satisfied, that the party against whom the decree is to be pro- nounced, has received notice in fact, and not merely in law.^ § 312. In Delaware, on a petition for divorce, it appeared that the defendant husband concealed himself from the officer v. Hilliard, II Pick. 143; Brown j). Brown, 15 Mass. 389 ; Hotchkish's case, 1 Koot, 355 ; Harter v. Harter, 5 Ohio, 318. 1 Townsand v. Townsand, 21 111. 540. See Smith v. Smith, 20 Misso. 166. 2 Phelps V. Phelps, 7 Paige, 150. ' Welch V. Welch, 16 Ark. 527. And see Smith v. Smith, 9 Mass. 422. * Randall ». Randall, 7 Mass. 502. ^ And see Labotiere u. Labotiere, 8 Mass. 383. There is a New York case which was heard before the Vice-Chancellor, wherein it was observed, that there- after evidence would be required on a reference to the Master for proofs, where there was a default of the actual service of the process upon the defendant, within the jurisdiction of the court. And the judge mentioned the fact of "a case lately before him having progressed very far to a decree, when it was found out that service of subpojna- had been efifected by the husband himself upon the wife in the city of New Orleans. He also said that he should require the production of the original affidavit of service of subpoena or of a certified copy, in order to see that it was sufiSciently positive as to the identity of the party on whom the service was made, as, in one instance which had come to his knowledge, the wife had been personated for the purpose of such a service, and a decree obtained against her entirely by surprise." Schetzler v. Schetzlcr, 2 Edw. Ch. 584. See also Alexan- der V. Alexander, 2 Swab. & T. 95. [254] CHAP. XVII.] PARTIES AND BRINGING SUIT. § 314 charged with serving the notice upon him, for which reason he could not be found ; and that he was prosecuting a suit against the administrator of the wife's fatlier for the recovery of her share of the estate. The court thereupon ordered a stay of proceedings in this suif, until he should appear and answer to the suit for divorce. " He asks justice," said the judge, " and he must not refuse to do justice." ^ § 313. The rule that a general appearance by a defendant cures any imperfection in the notice is familiar to all prac- titioners. So also it is familiar, that, in some circumstances, and to a certain extent, it precludes objection to the jurisdic- tion of the court over the party. In Illinois it was held, that, in an action for divorce in the circuit court, an objection to the tribunal for the particular county taking the jurisdic- tion came too late after trial and verdict. " The circuit courts," said Breese, J., " have general jurisdiction of the subject of divorces, and the defendant in this case voluntarily submitted to the jurisdiction over his person. The objection, being of a dilatory character, should have been made before trial, by motion or by plea in abatement ; answering to the merits waives the objection." ^ § 314. But the matter of perhaps the greater interest in these cases is the notice to defendants who are absent from the State. In most, if not all the States, there is pro- vision made by statute for such notice ; and a single refer- ence to the leading decisions will satisfy the reader as to most points.^ On a question, not of divorce, but one arising 1 Baldwin v. Baldwin, 2 Harring. Del. 196. And see Cooke v. Cooke, 2 Swab. & T. 50. 2 Peeples v. Peeples, 19 111. 269, 271. ' Homston v. Homston, 3 Mass. 1.59 ; Choate v. Choate, 3 Mass. 391 ; Anon- ymous, 5 Mass. 197 ; Smith v. Smith, 6 Mass. 36 ; Labotiere v. Labotiere, 8 Mass. 383; PlummerD. Plummer, 37 Missis. 185 ; Ditson v. Ditson, 4 R. I. 87 ; Sweet V. Avaunt, 2 Bay 492 ; Crabb. v. Atwood, 10 Ind. 331 ; Green u. Green, 7 Ind. 113 ; Meyar v. Meyar, 3 Met. Ky. 298 ; Harrison v. Harrison, 19 Ala. 499 ; Smith V. Smith, 4 Greene, Iowa, 266 ; Pinkney v. Pinkney^ 4 Greene, Iowa, 324 ; God- [255] § 315 PLEADING AND ACCOMPANIMENTS. [BOOK IV. under a tax title, it was held, that, where notice of a public sale is required by statute to be given tliirty days previous to the sale, and there is no direction that the last publication shall be thirty days before the sale, the direction is sufii- ciently complied with if'tlie commencement of the notice is thirty days before sale.^ In the Supreme Court of the United States it was adjudged, that, to constitute a valid sale of property for non-payment of taxes, under a statute directing public notice of the time and place of the sale to be given by advertisement in some newspaper " once in each weelc for at least twelve successive weeks," a period of twelve full weeks, or eighty-four days, must have elapsed between the first advertised notice of the sale and the day on which it was made.^ Where, in Maine, the law required the notice of a sale to be pubHshed in the newspaper of the public printer of the State, and before the last publication the paper had ceased to be the State paper, the notice was held to be insufBcient.^ § 315. In these libels for divorce, the order of notice which is made by the court must be strictly followed.* And where the libellant stated in the libel her maiden name to have been Launders, and, in the copy published, tlie name was Saunders, the notice was held to be insuflicient by reason of the variance.^ Where the order of the court was to give notice by publishing, &c., " three weeks successively," in a newspaper, the court deemed the order complied with where there had not been an interval of a week between either the first and second, or second and third, publications. "The publication has been made," said the judge, "in tliree successive weeks, which is sufficient." ^ frey v. Godfrey, 27 Ga. 466 ; Anonymous, 27 Maine, 563 ; Anonymous, 5 Mass. 197 ; Mace v. Mace, 7 Mass. 212 ; Schnaufer v. Schnaufer, 4 La. An. 355. 1 Colman v. Anderson, 10 Mass. 105. 2 Early v. Doe, 16 How. U. S. 610. = Bussey v. Leavitt, 3 Fairf. 378. * Smith V. Smith, 4 Greene, Iowa, 266. 5 Jer.ne v. Jenne, 7 Mass. 94. « Bachelor ». Bachelor, 1 Mass. 256. See also Gary v. May, 16 Ohio, 66. [256] CHAP. XVII.] PARTIES AND BRINGING SUIT. § 317 V. Cross-Suits, Suits pending, and taking Advantage of Mat- ter which has transpired since Suit commenced. § 316. Allusion has been made more than once in these volumes to the flexible nature of the proceedings in the Ecclesiastical Courts.^ In these courts, when a married party was proceeded against for a divorce a mensd et thoro, or for nullity of the marriage, or for restitution of conjugal rights, such party could not only defend the suit by showing a competent wrong, or the like, in the other party ; but, prevailing, could have the proper sentence rendered in his favor, as though he were the original plaintiif.^ In like man- ner, if a husband, for instance, were proceeding against his wife on the grpund of her adultery, and a new fact of adultery should come to his knowledge, committed since the suit was commenced, he might plead this fresh adultery in a supplemental allegation, even though publication, as to the original matter, had passed ; and, proving the supplemental matter, a divorce might be granted him founded upon it.^ § 317. But the practice of our common-law and equity courts accommodates itself less nicely to the justice and the equity of these cases. At the same time, there are American decisions in which this English flexibility is almost attained ; while, in other cases, the unyielding rigidity of the old com- mon law seems to have been fully preserved. In New York, the following case arose : a wife brought her bill for divorce a mensd against her husband, on the ground of cruelty, and he, besides denying the cruelty, alleged, that, at the time of the marriage between the parties, she was the wife of an- other man who was still living, and prayed for a sentence of 1 Vol.1. § 110; ante, ^ 297. 2 And see Best v. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158 ; Dysart v. Dysart, 1 Eobertson, 106; Clowes v. Clowes, 3 Curt. Ec. 185, '194. 8 Middleton *. Middleton, 2 Hag. Ec. Supp. 134, 4 Eng. Ec. 299 ; Webb. v. Webb, 1 Hag. Ec. 349, 3 Eng. Ec. 152. VOL. II. 17 [ 257 ] § 318 PLEADING AND ACCOMPANIMENTS. [BOOK IV. nullity of marriage in his favor. But, as the evidence did not sustain his allegation, the court left the point undecided, whether or not he could proceed in this way.^ In another New York case, a wife having brought against her husband a bill for divorce on the ground of his cruelty, he answered the bill by setting iip her cruelty, and prayed for the- affirma- tive relief of a divorce, and it was granted him.^ But the New York Code provides, that there may be given to the de- fendant " any affirmative relief to which he may be entitled." § 318. The practice of bringing a cross-bill by the defend- ant against the plaintiff, to aid the defence and likewise obtain affirmative relief, may be resorted to in these divorce cases as well as in any other. This way is open to a de- fendant, equally whether the proceeding is by bill in equity, by libel corresponding to the ecclesiastical libel, or by a statutory complaint; and this is a matter which needs no particular illustration.^ There is an Indiana statute which provides, that " the defendant may, in addition to his or her answer, file a cross-petition for divorce, and the court shall, in such case, decree the divorce, if any, in favor of the party legally entitled to the same." And where a husband had brought his petition, and the wife had filed her cross- petition under this statute, then the husband had caused his petition to be dismissed, the court held, that the whole case was ended, and the wife could not proceed further with her cross-petition. There can be little doubt that this is so on principle ; and, on the- other hand, there can be as little doubt on principle, that, where a defendant has thus ob- tained a status in court entitling to affirmative relief, the judge should not permit the plaintiff to dismiss the suit, and thus defeat the right. But an observation made by the 1 Linden v. Linden, 35 Barb. 61. See Zule v. Zule, Saxton, 96; Boggess ». Boggess, 4 Dana, 307. 2 McNamara v. McNamara, 2 Hilton, 547, 9 Abbott's Pr. 18. 8 McCafferty v. McCafferty, 8 Blackf. 218; Russell v. Russell, 1 Smith, Ind. •356, 1 Ind. 510; Stafford v. Stafford, 9 Ind. 162; Boggess v. Boggess, 4 Dana, :307 ; Birlcby v. Birkby, 15 III. 120. [258] CHAP. XVn.] PARTIES AND BRINGING SUIT. § 319 judge while ruling the wife out of court is worthy of special note. He said : " It is time that legal strictness was ad- hered to in deciding divorce cases. The facility with which divorces have been granted has proved a curse to the social state. It has proved an incentive to domestic discord, and tended greatly and injuriously to blunt the sense of matri- monial obligations and duties, and weaken the ties which should bind together husband and wife and children, — in short, families, — and, in so doing, to demoralize and dis- organize society."^ It seems to the writer that the true view to be taken of the matter thus mentioned is this : if the statutory law of the State authorizes divorce for too many causes, or for frivolous causes, the legislative power should be petitioned to amend it. Yet, while it stands, the courts should carry out its provisions in their true spirit, neither too strictly, nor too loosely. But the procedure is to be dis- tinguished from the law. Every judge should esteem it his duty and his pleasure, whatever he thinks of the law, to hold the procedure as free as possible from technical kink and from every manner of obstruction ; so that litigants can bring, with the least practicable expense and vexation, the questions of law and of fact to be tried, before the judge and the jury. § 319. It has been in some tribunals held, that, if at the time of bringing the suit for divorce the cause of divorce is not fully matured, arid therefore the party is not entitled to the remedy he seeks, the defect cannot be supplied, by a sup- plemental bill filed in the original suit, alleging facts which transpired since the original suit was commenced.^ On the other hand, other courts have permitted this to be done ; that is, have permitted the plaintiff to proceed on a sup- plemental bill filed in the original cause, and alleging facts which transpired after the filing of the original bill, and 1 Stoner v. Stoner, 9 Ind. 505, 506. « Milner v. Milner, 2 Edw. Ch. 114 ; Hill v. Hill, 10 Ala. 527. [259] § 321 PLEADING AND ACCOMPANIMENTS. [BOOK IV. making those facts the ground of divorce.^ But the author- ities concur in the proposition, that, without a supplemental or an amended bill, the plaintiff cannot rely upon such sub- sequent matter.^ § 320. How far the pendency of a libel for divorce may be shown in abatement of a subsequent libel, is a matter about which judicial decision has not much enlightened us. According to a Maryland case, the fact that the complainant had filed a bill in the equity side of the county court, for divorce and alimony, before bringing her bill in the court of' chancery for a provision for her maintenance out of her husband's es- tate, wherein she asked no divorce, is an insuperable objection to her obtaining relief in the latter suit.^ In Massachusetts, simple desertion, without any time appended, was by statute made cause of divorce from bed and board. Afterward it was enacted, that desertion continued five years should be ground of divorce from the bond of matrimony. A party, having a suit pending for the limited divorce by reason of the simple desertion, brought, after the later statute was enacted, suit for the full divorce ; and it was held, that the pendency of the former suit could not well be pleaded in abatement of the subsequent one. " The reason," said Shaw, C. J., " why a second suit cannot be commenced for the same cause, pend- ing a former, is, that it is unnecessary, inasmuch as the party prosecuting may have the same remedy under the first as he could obtain by prosecuting another," — a reason which, not existing in this case, could not operate to abate this suit.* § 321. In an English case before the new matrimonial court, a wife, having brought her petition for a judicial sep- aration by reason of the husband's cruelty, discovered, that, ^ Butler V. Butler, 4 Litt. 201 ; Logan v. Logan, 2 B. Monr. 142 ; McCrocklin V. McCrocklin, 2 B. Monr. 370 ; Feigley v. Feigley, 7 Md. 537. " Butler «. Butler, supra; Feigley v. Feigley, supra; Marsh v. Marsh, 2 Beasley, 281 ; Ferrier v. Ferrier, 4 Edw. Ch. 296. " Dunnoek v. Dunnock, 3 Md. Ch. 140. * Stevens v. Stevens, 1 Met. 279, 280. [260] CHAP. XVn.] PARTIES AND BRINGING SUIT. § 321 unknown to her at the time of bringing the suit, the husband had committed adultery also. She thereupon asked leave to withdraw the petition for judicial separation, and file one for the full divorce by reason of the two ofiFences combined. The Judge Ordinary asked, whether the wife's proctor had re- ceived her costs in the former suit ; and, being answered in the affirmative, said, " That being so, I will grant the appli- cation." ^ 1 Ashley v. Ashley, 2 Swab. & T. 388, 389. And see Turner ». Turner, 2 Swab. & T. 426 ; Alexander v. Alexander, 2 Swab. & T. 385. [261] CHAPTER Xyill. THE PLEADINGS IN COURT. Sect. 322. Introduction. 823-325. General Views of the Libel. 326-344. What particular Allegations the Libel should contain. 345- 349. The Pleadings subsequent to the Libel. § 322. Under the several titles of Adultery, Cruelty, and the like, those special matters which concern the method in which the particular offence shall be set out in the allegation, and other things of this sort, will be considered. In this chapter, it is proposed to bring under our review only such things as pertain to the cause irrespective of the particular ground on which the sentence of divorce or of nullity is prayed. We shall divide Trtiat is to be said as follows: I. General Views of the Libel; II. What particular Alle- gations the Libel should contain ; III. The Pleadings subse- quent to the Libel. I. General Views of the Libel. § 323. The first observation to be made is, that, in consid- ering the nature of the libel, we must not be much led by any teachings derived from the practice of the English Eccle- siastical Courts. We have already seen,^ that, in the practice of those courts, the libel serves, in effect, what with us may be deemed two distinct purposes ; the one is, that of allegation proper ; the other, that of interrogatory, for the examination of all the witnesses, and for the personal examination of the 1 Ante, § 217, 221. [262] CHAP. XVIII.] PLEADINGS IN COUKT. § 326 defendant, as to the particular facts of the case. The Eng- lish allegation, as it used to be seen in the practice of the Ecclesiastical Courts, is not indeed in the form of questions, there is no need it should be ; because, as we have seen,^ the examiner takes the libel, and himself puts the questions based, upon what he finds therein stated. § 324. Aylifie says : " A libel ought to be short, and not verbose, because the law abhors a prolixity of words." ^ Yet, when a libel contains, in reality, almost a full statement of the evidence, as well as of the legal facts on which the relief is sought, how can it be short? ' The English ecclesiastical libel searches the conscience of the respondent, searches the memories of all the witnesses, and almost palavers with the judge, — how, then, can it be short? In order to serve its interrogative ends, it is set out in articles, which are num- bered ; but an American libel for divorce need not be in numbered articles : it is not interrogative in its nature. An American libel may be short; and it would be very injudi- cious for an American practitioner to present to the court, under any circumstances, a libel for divorce drawn upon the English ecclesiastical model. § 325. Where the proceeding, with us, is in equity, the bill is framed after the general pattern of other bills in equity. Where it is not in equity, the libel contains a state- ment of the legal facts more nearly after the manner of common-law pleadings. Yet the course of practice in these cases is not quite uniform in all the States, and in many of them it is not perhaps well defined. Let us look, in our next sub-title, at some particular propositions. II. What particular Allegations the Libel should contain. § 326. The first inquiry under this head is, to what extent different matrimonial offences may be joined in one libel. 1 Ante, § 221. " Ayl. Parer. 346. [263] § 327 PLEADING AND ACCOMPANIMENTS. [BOOK IV. The doctrine is clear, the practice is uniform, that, if several distinct matrimonial wrongs — as, for example, adultery and cruelty — are each made cause for the same kind of divorce, whether it he from bed and board, or from the bond of matrimony, they may be complained of in one libel, and the libellant will take his divorce for whichever he can prove, or for both. Tills i? universal practice in England and in the United States.^ In one case, a bill praying for a divorce from the bond of matrimony alleged tjie three several causes of cruelty, desertion, and adultery ; and the judge observed, that this was no objection to it, and added : " The title to the re- lief prayed is the same whether one or the other of the several alleged grounds be proved. It is well settled that the plain- tiff may aver facts of a different nature, which will equally support his application." ^ § 327. But where adultery and cruelty, for example, are grounds for different kinds of divorce, — as, where the adul- tery authorizes a divorce from -the bond of matrimony, and cruelty, from bed and board, — the two, if the proceeding is in equity, cannot be joined in one bill.^ So it has been de- cided in New York and in New Jersey ; but perhaps the decisions in these States may be found to rest in reasons which in some of the other States do not exist. Said Chan- cellor Kent, giving an opinion in New York : " The charges of adultery and of cruel usage are not only distinct and unconnected charges, but they lead to distinct issues and decrees. An answer to a charge of adultery may be without oath, but au answer to a charge of cruel usage must be upon oath. The charges, therefore, necessarily require separate answers ; and, if the charge of adultery be denied, a feigfied issue must be awarded, which need not be the case on denial 1 And see Stokes v. Stokes, 1 Misso. 320 ; Morris v. Morris, 20 Ala. 168. 2 Quarles v. Quarles, 19 Ala. 363, 366, opinion by Chilton, J. 8 Mulock V. Mulock, 1 Edw. Ch. U ; Rose v. Kose, 11 Paige, 166 ; Beach v. Beach, 11 Paige, 161 ; Smith v. Smith,'4^Paige, 92 ; Decamp v. Decamp, 1 Green. Ch. 294 ; Pomeroy v. Pomeroy, 1 Johns. Ch. 606 ; Snover v. Snover, 2 Stockton, 261. [264] CHAP. XVni.] PLEADINGS IN COURT. § 328 of the charge of cruel usage, but the latter may be tried upon depositions, according to the ordinary course of the court. If the adultery be confessed, or if the bill, as to that charge, be taken pro confesso, still there must be a reference to a master, to take and report proof of the charge ; and the cause must be brought regularly to a hearing upon such proof. But if the defendant confessfes the other charge, or if he suffers the' bill to be taken pro confesso, the admission is conclusive, and puts an end to the controversy. The de- crees in the two cases are essentially different. In the one, it is an absolute divorce, with a disability to the defendant to marry again. In the other, the divorce is only a mensd et thoro, and may be for life or for a limited time, 'at the dis- cretion of the court." And there were still other differences in the procedure, wliich he pointed out.^ In Massachusetts, where most of these reasons do not exist, and the proceeding is not in equity, neither is it purely at common law, it is always customary to jinite the two charges of cruelty and adultery in one libel, though one of them furnishes ground for divorce from the bond of matrimony, and tlie other, for divorce only from bed and board. The court will decree the one or the other divorce, according as the evidence produced may require.^ § 328. The rule in equity proceedings is familiar, that, under the general prayer for relief, suppose there is also a specific prayer, tljie court will grant such particular relief as the case stated in the bill and supported by the proofs may require.^ And on this principle, if the particular prayer is for one form of divorce, and the proven facts show a right to the other form, and the allegations in the bill afford founda- tion for this other form, the latter may be granted. So it would seem on principle, yet the books present us scarcely any specific authority on this point.* Where there is no general 1 Johnson v. Johnson, 6 Johns. Ch. 163. ^ Young v. Yonng, 4 Mass. 430. * Tajloe V. Merchants' Fire Insurance Co., 9 How. U. S. 390. * The reader may consult Klingenberger v. Klingenberger, 6 S. & E. 187 ; [265] § 329 PLEADING AND ACCOMPANIMENTS. [BOOK IV. prayer, but a specific one, the particular relief prayed for will be granted, or not anything.^ Yet in an English case before the new court, the prayer of the plaintiff wife was for a dissolution of the marriage by reason of adultery and deser- tion ; she proved adultery only, which entitled her merely to a judicial separation ; and, notwithstanding the prayer, the court held, that, as she had brought her case within the law authorizing the latter remedy, it might be granted.^ § 329. The libel must set out a sufficient cause of divorce, else the court cannot entertain it.^ Where it does not, if a jury find a verdict upon it, no judgment can be rendered thereon.* And the cause must exist at the time the libel is filed. ^ Where the cause is one which, by law, must be continuing then, the date of the libel must not be anterior to the time of the filing. The judge suggested, that the better course in such a case would be to attach no date to the libel, "leaving the date of the filing to be regarded as the date of the petition." ^ And where the evidence brought forward to sustain the libel fails to make out the case therein alleged, the suit must fail, and no decree be rendered in behalf of the plaintiff, though other ground of relief should appear. Thus, where a wife brought her bill in equity against her husband, for a divorce from bed and board by reason of his cruelty and desertion, and in the proofs it appeared that at the time of the marriage he had a former wife living, thereby entitling her to a sentence of nullity, still she was refused this sentence, because the bill was not framed with reference to this relief.^ Hackney v. Hackney, 9 Humph. 450 ; Thombury v. Thornbury, 2 J. J. Mar 322. ' Walton V. 'Walton, 32 Barb. 203 ; Whittington v. Whittington, 2 Dev. & Bat 64; Clayton i;. Clayton, 1 Ashm. 52; and see Moore b. Guest, 8 Texas, 117 Edmonds v. Her Husband, 4 La. An. 489. 2 Smith V. Smith, 1 Swab. & T. 359, 362. This case states distinctly that the prayer was " simply for a dissolution." ' Anonymous, 27 Maine, 563. » * Johnson v. Johnson, 4 Wis. 135. 6 Ante, § 319. = Davis v. Davis, 37 N. H. 191, 192 ' Zule V. Zule, Saxton, 96. [266] CHAP. XVm.] PLEADINGS IN COURT. § 331 § 830. How adultery, cruelty, desertion, or the like is to be set out in the libel is matter to be considered under those several heads. The libel must always allege a marriage, and this rule applies as well in suits for nullity of marriage as in ordinary divorce suits.^ It is the English ecclesiastical prac- tice to set out the marriage somewhat at length ; thus, one of the forms given in Coote's Ecclesiastical Practice is as fol- lows : " That in the months of June, July, and August, in the year of our Lord one thousand eight hundred and twenty-five, the said Alexander Grant, Esquire, being then resident in Ma- dras, in the East Indies, a bachelor, and free from all matrimo- nial contracts and engagements, made his courtship in the way of marriage to the said Maria Theresa Grant, then Maria The- resa de Champ, a spinster, and also free from all matrimonial contracts and engagements, who received such the courtship of him, the said Alexander Grant, and consented to be mar- ried to him ; and that accordingly, on or about the twentieth day of the said month of August, one thousand eight hundred and twenty-five, they, the said Alexander Grant, who then was and still is, a member of the church of Scotland by law established, and Maria Theresa Grant, then Maria The- resa de Champ, were lawfully joined together in holy matri- mony according to the rites and ceremonies of the church of Scotland by law established, at Madras aforesaid, by the Reverend George James Lawrie, an ordained minister of the church of Scotland as by law established, appointed by the United Company of Merchants of England, trading to the East Indies, to officiate as chaplain within the presidency of Madras aforesaid, who then and there pronounced them to be husband and wife respectively." And the libel proceeds in another article to plead cohabitation under the marriage.^ § 331. It was held, in a suit for the restitution of conjugal rights, not to be necessary to plead the age of the parties at the time of the marriage. " I am still disposed to hold," said 1 Ante, § 253, 262, 265 ; Coote Ec. Pract. 320, 350, 362, 370, 377, 399, 411 - 416. 2 Coote Be. Pract, 320, 321. [267] § 332 PLEADING AND ACCOMPANIMENTS. [BOOK IV. Sir John NichoU, " that, where it is pleaded that the parties were lawfully married, and the affidavit is exhibited in which the age is averred, and the entry of the marriage, that the averments are sufficient ; it lies on the adverse party to show anything he thinks may impeach it." ^ In a divorce case it was adjudged to be sufficient to plead that the parties were "lawfully married," without stating the marriage to have been by virtue of banns first duly had and published, or pur- suant to a license first duly had, as the case may be. The word " lawfully," it was said, conveys the whole.^ And al- though it was customary to aver, as in the precedent copied into our last section, a courtship as well as marriage, there was no legal necessity for the courtship to be mentioned ; still. Dr. Lushington once observed of this matter : " When long established forms are departed from, the vigilance of the court is usually excited." ^ § 332. The present Matrimonial Court of England has adopted new rules of proceeding, and the following is the brief form . in which the marriage is to be alleged : " That your petitioner was, on the — day of , 18 — , lawfully married to C. B. [the present name of the wife], then C. Z., widow, at ."* And although the reports of our American tribunals seem to contain no cases which turned on the mere question of the allegation of the marriage, this brief form is believed by the writer to be sufficient in most, probably all, of our States. It has been held in New Hamp- shire, where the matter appears to be complicated with some other questions whicli concern the jurisdiction of the court, that the place at which the marriage occurred should be set out in the libel. And it was added, that, if the marriage were celebrated in New Hampshire, and the parties are described as residing there, no further allegation of residence is necessary. If they were married elsewhere, a subsequent 1 Pool V. Pool, 2 Phillim. 119, 120._ ^ Leighton v. Leighton, 14 Jar. 318. 8 Dillon B. Dillon, 3 Curt. Ec. 86, 90, 7 Eng. Ec. 377, 379. * Swabey Diy. 180. [268] CHAP. XVm.] PLEADINGS IN COUBT. § 333 residence of the libellant in the State at the time of the delic- tum must be averred ; for the court has no jurisdiction over causes of divorce which occurred while the parties were re- siding in another State.^ § 333. The questions of what allegation of faculties, of property brought by the wife to the husband, and of the birth and present existence of children, the libel should con- tain, or whether any, will come up for discussion under appropriate heads hereafter. Having thus disposed of .the principal matters of the libel, so far as the present discussion is concerned, it remains to inquire what ancillary or inci- dental matters must be set out in it. In New York, there were formerly some rules of the court of chancery requiring the bill to negative connivance, condonation, and the like, — the precise extent of which rules it is immaterial to inquire.^ At present the matter in this State would seem to be regu- lated by a rule of the Supreme Court — at least, regulated for that court — adopted in 1854. It is as follows : " When the action is for a divorce on the ground of adultery, unless it is averred in the complaint that the adultery charged was committed without the consent, connivance, privity, or pro- curement of the plaintiff; that five years have not elapsed since the discovery of the fact that such adultery had been committed ; and that the plaintiff has not voluntarily cohab- ited with the defendant since such discovery ; and also when at the time of the offence charged the defendant was living in adulterous intercourse with the person with whom the offence is alleged to have been committed, that five years have not elapsed since the commencement of such adulter- ous intercourse was discovered by the plaintiff; and the complaint containing such averments be verified by the oath of the plaintiff, in the manner prescribed by the 157th 1 Greenlaw v. Greenlaw, 12 N. H. 200 ; ante, § 172-175. And see Batchelder v. Batclielder, 14 N. H. 380 ; Mix v. Mix, 1 Johns. Ch. 204 ; post, § 344. 2 Ante, § 30, note ; Kane u. Kane, 3 Bdw. Ch. 389 ; Johnson v. Johnson, 1 Edw. Ch. 439 ; Eose v. Rose, 11 Paige, 166. And see, as to Michigan, Emmons p. Emmons, Walker, Mich. 532. [269] § 335 PLEADING AND ACCOMPANIMENTS. , [BOOK IV. section of the code, judgment shall not be rendered for the relief demanded, until the plaintiffs affidavit be produced stating the above facts." ^ Mention of this rule, hovrever, is not made so much to guide New York practitioners, as to caution all readers, that there may be rules of court, or statutes of their own States, controlling such questions as those now under consideration. § 334. Connivance, condonation, and recrimination are matters which properly belong to the defence ; and, as a general proposition, where there is no statute or rule of court on the subject, it would plainly be irregular to introduce into the libel a denial of them.^ Yet, in the practice of the Eccle- siastical Courts there was some looseness on this subject, growing probably out of the fact already mentioned, that the party made his allegation, whether it were the libel or a subsequent allegation, for the double purpose of exhibiting ground in law for the complaint, and drawing testimony out of witnesses and the opposite party. And, as observed by Sir John NichoU, " where the party himself has the benefit of being heard on his own statements, he should set forth every- thing fully, or the court will take the statement to his dis- advantage." ^ And in these courts, as in all others, it was, as a general proposition, no objection to an allegation that it contained more than was necessary to entitle the party to his remedy.* § 335 [349]. And whether a cause is to be heard in the Ecclesiastical Courts or any other, the plaintiff is bound so to present his case as not to show himself at the same time ^ Rule 64, Voorhies Code, 5th od. 639. 2 Pastoret v, Pastoret, 6 Mass. 276-; Lewis v. Lewis, 9 Ind. 105 ; post, § 335, 337, 341. See, on this general subject, Johnson v. Johnson, 14 Wend. 637 ; Haswell ». Haswell, 1 Swab. & T. 502; Backus v. Backus, 3 Greenl. 136 ; Daviiv. Davis, 19 111. 334 ; Jeans v. Jeans, 2 Earring. Del. 38 ; Morrell v. Morrell, 1 Barb. 319 ; Wood V. Wood, 2 Paige, 108 ; Burdell v. Burdell, 2 Barb. 473 ; Burr v. Burr, 2 Edw. Ch. 448. ' Bees V. Bees, 3 Phillim. 387, 391, 1 Eng. Ec. 418, 419. * Croft V. Croft. 3 Hag. Ec. 310, 5 Eng. Ec. 120, 125. [270] CHAP. XVIII.] PLEADINGS IN COURT. § 336 barred of his remedy ; ^ and, if the bar appears in his own pleadings, he cannot have a divorce even though a jury should find a verdict in his favor.^ In the ecclesiastical practice, he may, if he choose, introduce into his libel any matter which will make the history natural and consistent, and forestall suspicion of connivance ; " for the party ought not to be forced ultimately to depend, for an explanation of his conduct, on the ingenuity of his counsel, or the discrim- ination of the court." 3 The case may be such that the plaintiff's only safety is in this form of pleading ; because, if the matter of defence appears, either by his own admissions upon the record, or by the testimony of his witnesses, the court of its own motion, or moved by the opposing counsel, will take the objection at the hearing, though it appears not in allegation.* § 886 [349]. Yet it has been doubted, whether, even under the ecclesiastical practice, the defendant can set up conniv- ance merely on interrogatories proposed by himself to the plaintiff's witnesses ; at all events the evidence must be un- equivocal, and incapable of explanation ; and the court will give the plaintiff opportunity to explain it, if ,he can.^ Still, we shall find it difficult to see, how, if connivance or any other defence comes out in proof,^ the court, as representing the public which does not plead, can refuse to give heed to the evidence, though the party could claim nothing. But perhaps this precise question can arise only in tlie peculiar practice of the Ecclesiastical Courts, which permits the testi- mony to be taken on the allegations of either party before the adverse party has closed his pleadings ; so that, while the right to cross-examine on this matter was unquestioned 1 Crewe v, Crewe, 3 Hag. Ee. 123, 125, 5 Eng. Ec. 45, 46 ; Johnson v. Johnson, 1 Edw. Ch. 439 ; post, § 340. 2 Moss V. Moss, 2 Ire. 55 ; ante, § 329. 8 Croft V. Croft, 3 Hag. Ec. 310, 312, 5 Eng. Ec. 120, 121. * Crewe v. Crewe, 3 Hag. Ec. 123, 124, 5 Eng. Eo. 45, 46 ; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130 ; Smith v. Smith, 4 Paige, 432.- 6 Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130. ° Ante, § 253. [271] § 338 PLEADING AND ACCOMPANIMENTS. [BOOK IV. in England, under the ecclesiastical system, it may not, probably does not, exist in this country.^ § 337 [381]. In the practice of the Ecclesiastical Courts, the promoter usually alleges, in the libel, a withdrawal from cohabitation with the defendant, upon the last act of cruelty being inflicted,^ or receiving knowledge of the adultery ; ^ but only thus argumentatively does the libel deny condonation. This form of pleading seems naturally to constitute a part of the voluminous allegations which must always encumber a case where the evidence is taken in the mode pursued in those courts ; but it is not adapted to the practice of other tribunals. And in England, it has been said, that slight proof of this allegation is sufficient.* Truly, however, both there and here, condonation is but matter of defence ; it may accompany a denial of the offence charged ; ^ and it must be pleaded by the defendant, or he will have no right to take advantage of it.® And Sir John Nicholl has said : " I know not of any case where condonation has been held to estop a party, where it has not .been pleaded." '^ In the American practice, there is no necessity for the libel to contain any denial of condonation.® § 388 [382]. But in consequence of the triangular charac- ter of the matrimonial suit, as before discussed,^ it follows, that, whenever the fact of condonation having passed appears in the case, it is fatal to the plaintiff's claim, though the de- fendant has not pleaded it ; not because the defendant has any just right to take the objection, but because public policy 1 See post, § 339. ^ Coote Ec. Pract. 356. ^ lb. 334. * Dr. Lushington, in Caton v. Caton, 13 Jur. 431, 434. 6 Smith V. Smith, 4 Paige, 432 ; Wood v. Wood, 2 Paige, 108 ; Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 380. ^ Smith V. Smith, 4 Paige, 432 ; Adams v. Hurst, 9 La. 243 ; Timmings v. Timmings, 3 Hag. Ec 76, 5 Eng. Ec. 22, 26 ; Jeans v. Jeans, 2 Harring. Del. 38 ; ante, 5 334. 7 Durant v. Durant, 1 Hag. Ec. 733, 752, 3 Eng. Ec. 310, 319. Bat see Best v. Best, 1 Add. Ec. 41i; 2 Eng. Ec. 158. ' Earp V. Earp, 1 Jones Eq. 239. » Ante, § 231, 234, 253. [272] CHAP. XVIII.] PLEADINGS IN COURT. § 339 does not permit the divorce ; and the public, which does not plead, objects through the conscience of the judge. And Chancellor Walworth went so far as to say, that, if there is reason to believe this defence exists, the court, ex officio, may at any time before a final decree direct an inquiry to ascer- tain the fact.^ Therefore where, in a case taken pro confesso, and referred to a master for proofs, the master's report left it doubtful, whether the complainant had not voluntarily co- habited with the defendant after knowledge of the last act of adultery charged, such cohabitation having occurred after knowledge of several previous acts, there was ordered a refer- ence back to the master of the question, whether this last act was condoned .2 But where a decree for divorce had been regularly obtained by the wife against her husband, while he was in the state prison on conviction for a felony, and no doubt existed of the fact of the matrimonial offence com- plained of having been committed ; the court would not open the decree, for the purpose of enabling him to set up condonation of the offence.^ § 339 [383]. In the ecclesiastical practice has arisen an- ^ Smith V. Smith, 4 Paige, 432. On no principle, other than is here suggested, can we account for the decision of the Supreme Court of Maine, in Backus v. Backus, 3 Greenl. 136; a briefcase, and not apparently much considered ; where, on a general traverse to the libel, and without special plea, the respondent was per- mitted to show a condonation of the adultery, by subsequent cohabitation The court is reported to have observed, that such evidence had always been heard ia any stage of the cause, even after a default. And see Elwes v. Blwes, 1 Hag. Con. 269, 292, 4 Eng. Ec. 401, 411. ^ Dodge r>. Dodge, 7 Paige, 589. It is observable, however, that a rule of the New York Court of ^Chancery required every plaintiff to aver in his bill, " that he has not voluntarily cohabited with the defendant since the discovery " of the adul- tery. Rule 168. Therefore when a bill, on being taken as confessed, was referred to a master for proofs, the court held it necessary for him to inquire, whether, since the plaintiff obtained knowledge of the adultery, there had been any condonation of it by voluntary cohabitation. Pugslcy v. Pugsley, 9 Paige, 589 ; Kane v. Kane, 3 Edw. Ch. 389 ; Dobbs v. Dobbs, 3 Edw. Ch. 377 ; Emmons a. Emmons, Walk. Mich. 532. And see Johnson v. Johnson, 14 Wend. 637. " Hofmire v. Hofmire, 7 Paige, 60 ; s. c. before the V. C., nom. Hoffmire v. Eoffmire, 3 Edw. Ch. 173. For the contrary doctrine to what is maintained in this section, see Lewis v. Lewis, 9 Ind. 105. See ante, § 253. VOL. II. 18 [ 273 ] § 340 PLEADING AND ACCOMPANIMENTS. [BOOK IV. other difficulty alluded to when speaking of connivance,^ which difficulty would not arise, certainly not to the same extent, under our different procedure. There a defendant, in his interrogatories to the plaintiff's witnesses, may inquire, not only into matters alleged in the libel, but also into such as he intends himself to allege in his responsive allegation, thereafter to be produced. But suppose he does not after- ward tender the allegation, or does not therein set up the condonation ; still the evidence exists in the case, rightfully drawn forth by a party who has no right to use it without a plea; and the question is, what the court will do with it. Two points however seem, on the whole, to be established : first, that the court will not suffer the plaintiff to be sur- prised, but will give him, if necessary, an opportunity to explain ; secondly, that, if the condonation is thus proved " by the clearest and most conclusive evidence," the divorce will be withheld, not otherwise ; " for, if [the matter] had been expressly pleaded, the other party might have produced further evidence to explain and disprove the defence." ^ § 340 [384]. Plainly, then, if a condonation appears on tlie face of the proofs or allegations of the party complain- ing, he, being bound to present a case which does not at the same time show a bar, cannot have the divorce.^ And when thus the condonation is to be inferred from the pleadings of such party himself, the rule we have just considered,* that it must be established, when not set up in defence, by the clearest and most conclusive evidence, does not apply.^ So the peculiar form of the plaintiff's allegation may cast upon him the burden of showing, affirmatively, that there was no 1 Ante, § 336. ' Darant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310, 317, 319; Snow v. Snow, 2 Notes Cas. Supp. 1, 11 ; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130; Beeby v. Beeby, 1 Hag. Ec. 789, 795, 3 Eng. Ec. 338, 341 ; Elwes v. Elwes, 1 Hag. Con. 269, 292, 4 Eng. Ec. 401, 411. And see ante, § 336. " North V. North, 5 Mass. 320 ; Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22, 23; Snow v. Snow, 2 Notes Cas. Supp. 1, 12; Popkin v. Popkin, 1 Hag. Be. 766, 3 Eng. Ec. 325 ; ante, § 335. * Ante, § 339. • * Snow v. Snow, supra. [274] CHAP. XVIII,] PLEADINGS IN COURT. § 342 condonation ; as, it seems, if the husband states in his libel that the wife slept at his house the night after she committed adultery, of which adultery he had knowledge, he must show he did not sleep with her.^ § 341 [408]. In like manner, a defendant, who would rely upon matter of recrimination, must plead and prove it.^ Even where, in the chancery practice, the bill had been taken pro confesso, without plea, evidence of the recriminatory mat- ter has been deemed inadmissible on the hearing before the master to establish the defendant's guilt.^ A plea of recrim- ination may be joined with a denial of guilt.* And where the complainant has committed adultery since the answer or plea was put in, the defendant will be permitted, on applica- tion made within a reasonable time after the discovery of the fact, to set the fact up in plea, or in a supplemental answer, or by a cross-bill in the nature of a plea puis darrien continuance.^ And it has been intimated, as it would seem necessarily to follow from established principles, that, when a case has been sent to a jury, — if the plaintiff, after a verdict in his favor, but before a decree, contracts a second marriage and cohabits under it, he can have no benefit from the verdict ; ® the rule being, that adultery will bar, if committed at any time before sentenced § 342 [418] . Accordingly in the ecclesiastical practice, the plaintiff sometimes introduces into his libel articles account- ing for his delay in instituting the suit, this is an admissible 1 Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22, 26 ; Dillon v. Dillon, 3 Cart. Ec. 86, 7 Eng. Ec. 377, 390. And see Johnson v. Johnson, 1 Edw. Ch. 439. 2 Smith V. Smith, 4 Paige, 432 ; Pastoret v. Pastoret, 6 Mass. 276. ' Johnson v. Johnson, 14 Wend. 637. See ante, § 338, note. * Smith V. Smith, supra ; Hooper v. Hooper, 1 1 Paige, 46 ; Forster ». Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358 ; Wood v. Wood, 2 Paige, 108. 5 Smith V. Smith, supra; Brisco v. Brisco, 2 Add. Ec. 259, 2 Eng. Ec. 294. ■> Stanford v. Stanford, 1 Edw. Ch. 317. ^ Brisco V. Brisco, supra ; Smith v. Smith, supra. See ante, § 335, 336, 339. [275] § 343 PLEADING AND ACCOMPANIMENTS. [BOOK IV. course of procedure;^ but he need not examine •witnesses upon them, unless the defence is such as to require him to justify his conduct.^ The court has sometimes called upon the husband for his affidavit explanatory of his delay .^ And in a New Hampshire case, the judge observed : " The extreme cruelty complained of was eight years prior to the application for the divorce, and no reason is assigned why an earlier application was not made, which should have been given" in the libel.* It is doubtful, however, whether this view, even in the case of so considerable a lapse of time, accords with the general American practice and doctrine. § 343. In the famous case of Evans v. Evans, which was a suit for cruelty brought by the wife against the husband. Lord Stowell observed : " In her libel she pleads, as is usual," — a practice which we are informed in a note by the reporter has since been discontinued, — " though not necessary, and sometimes disadvantageous, her virtuous education, and good disposition, and her excellent conduct in the characters of a wife and a mother. One inconvenience arises from an article of this kind, that it gives opportunity and invitation to the other party to counterplead, in contradiction to this good character, as has been done in this case, in which a counterplea is given full of unfavorable epithets applied to her, and, amongst others, that she is a woman subject to habits of intoxication." ^ The temptation is very strong, in these cases, when in the hands of a prolific pleader, to ex- patiate on the good qualities of the plaintiff; but the method most to be approved, is to omit all such matter. Often the American libel, when brought on behalf of the wife, con- tains the statement that she has been a good, virtuous, and 1 Mortimer v. Mortimer, 2 Hag. Con. 310. " Richardson v. Richardson, 1 Hag. Ec. 6, 3 Eng. Ec. 13. And see Valleau v. Valleaa, 9 Paige, 207 ; Fellows v. Fellows, 8 N. H. 160. 8 Loader v. Loader, cited in Gilpin v. Gilpin, 3 Hag. Ec. 1 50, 5 Eng. Be. 58, 60. * Fellows V. Fellows, 8 N. H. 1 60. And see McCafferty v. McCafferty, 8 Blackf. 218. 6 Evans v. Evans, 1 Hag. Con. 3.5, 95, 4 Eng. Ec. 310, 338, note. [276] CHAP. XVIII.J PLEADINGS IN COURT. § 345 obedient wife, or something of this sort. There is probably no legal objection to such a single phrase in the libel, — But why place the wife in the position of one bestowing praise on herself, when, if anything is to be shown against her, it should be alleged on the other side ? § 344. In Alabama, it is provided by statute, that, when the defendant does not live within the State, the plaintiff " must have been a bond fide resident of this State for one year next before the filing of the bill ; which must be alleged in the bill, and proved."^ And there are other States in which, either by express enactment, or by judicial interpreta- tion of the statutes, something corresponding to this Alabama provision is required in respect to the allegation and the proof. The practitioner who is familiar with the general principles of pleading will be able easily to satisfy himself upon every such point, on consulting the statutes of his State.^ And in particular States there may be still other like matters to which the pleader will look. III. The Pleadings Subsequent to the Libel. § 345. It was observed in a Maine case, that " the strict rules of pleading applicable to common-law cases have not been followed in libels for divorce." ^ And the writer is persuaded, from his general impression of the cases as he finds them in the reports, that but little attention has been paid in most of our States to the pleadings subsequent to the libel. Where the proceeding is by bill in equity, drawn 1 Edwards v. Edwards, 30 Ala. 394 ; Grossman «. Grossman, 33 Ala. 486. 2 The following cases may be consulted : Batchelder v. Batchelder, 14 N. H. 380 ; Fellows V. Fellows, 8 N. H. 160; Smith v. Smith, 12 N. H. 80; ante, § 332; Lattier b. Lattier, 5 Ohio, 538; Mclntyre b. Mclntyre, Wright, 135; Gnild r. Guild, 16 Vt. 512 ; Mix », Mix, 1 Johns. Gh. 204 ; Jarvis v. Jarvis, 3 Edw. Ch. 462 ; Emmons v. Emmons, Walker, Mich. 532 ; Townsend v. Townsend, 2 R. I. 150 ; Leseuer ». Lescuer, 31 Barb. 330. ' Vance v. Vance, 17 Maine, 203, 204. [277] § 347 PLEADING AND ACCOMPANIMENTS. [BOOK IV. in due equity form, tlie subsequent pleadings will take the course usual in the equity tribunals. "Where the proceeding is not in equity, some decent regard to the ordinary practice must be paid in these cases.^ § 346. In some form, according to the custom most pre- Tailing in this country, the respondent must make written answer,. — not in the sense of the personal answer, as used in the Ecclesiastical Courts,^ — to the plaintiff's libel.^ This may be either by a sort of general issue, in which the allega- tions of the libel are simply denied, or it may be by setting up some special matter, such as condonation, or the like. And although the defendant makes the general issue or denial, he may join therewith the special matter. Thus, though the answer denies the adultery charged in the bill, it may set up, in connection with this denial, condonation or recrimination.* And in like manner, a defendant may set up connivance in plea, without admitting the truth of the plain- tiff's allegation, or may join such plea with a denial of guilt.^ And unless defences of this kind are set up in the answer, they cannot be proved on the trial.® § 347. How adultery is to be alleged, where the party re- lies upon it as cause of divorce, we shall see under the title .Adultery in this volume. The same particularity which is required in a libel setting up this matter, is required when 1 And see farther on this subject, Ewing v. Ewing, 2 Philad. 371, bottom paging, where it was held that a plea and a demurrer could not be put in at the same time ; Turner D. Turner, 3 Greenl. 398 ; Jones v. Jones, 18 Maine, 308; Eistine ». Eis- tine, 4 Bawie, 460 ; Morrell v. Morrell, 3 Barb. 236. 2 Ante, § 217, 281. ' Orrok v. Orrok, 1 Mass. 341 ; Allen v. Allen, I Hemp. 58 ; Eistine v. Eistine, 4 Rawle, 460 ; Hesler v. Hesler, Wright, 210 ; Mosser v. Mosser, 29 Ala. 313 ; Eich- mond V. Eichmond, 10 Terg. 343. * Wood V. Wood, 2 Paige, 108 ; ante, § 337. '^ Eogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 13 ; Porster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 360 ; Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28 ; Gilpin v. Gilpin, 3 Hag. Be. 150, 5 Eng. Be. 58 ; Austin v. Austin, 10 Conn. 221. s Lewis V. Lewis, 9 Ind. 105 ; ante, § 236, 253, 257, 336, 338 - 341. [278] CHAP. XVIII.] PLEADINGS IN COURT. § 349 the like matter is brought forward in the way of recrimina- tion.^ But an answer, it has been laid down in New York, setting up adultery of the plaintiff as a defence, need not allege, that the parties were inhabitants of the State at the time when it was committed, or that the defendant was ever an inhabitant.^ § 348. Where a defendant pleads condonation, if the plain- tiff would avoid the effect of it by showing subsequent mis- conduct, he should set up this matter in answer to the plea.^ § 349. In these suits, matter which occurred subsequently to the bringing of the suit may under some circumstances be introduced ; * but there is nothing connected with this propo- sition which requires a particular examination. 1 Morrell v. Morrell, 1 Barb. 318; Wood v. Wood, 2 Paige, 108; Burr v. Burr, 2Edw. Ch. 448; Garrett v. Garrett, 12 Ind. 407 ; Holsten v. Holsten, 23 Ala. 777. " Leseuer v. Leseuer, 31 Barb. 330. ' Jeans v. Jeans, 2 Harring. 4 (Del.) 38. • Burdell v. Burdell, 2 Barb. 473; ante, § 316, 319. [279] BOOK V. ANCILLAKY PROCEEDINGS AND DECREES ATTENDANT ON THE MAIN ISSUE. CHAPTER XIX. PRELIMINARY INQUIRY CONCERNING ALIMONY AS AN INDEPENDENT REMEDY UNACCOMPANIED BY DIVORCE. § 360. Before we enter directly upon the discussion of the principal topics intended for this division of our subject, it seems desirable to consider the doctrines which pertain to alimony as Swarded in a few of our States, when there is no divorce. Let it first be observed, however, that the divorce suit is peculiar in drawing to itself various ancillary matters, which, of themselves, are really independent of the main mat- ter, therefore requiring to be considered under separate titles. Alimony, though usually a dependent on a divorce suit, is, in a very high sense, an independent thing, having its own pro- cedure, its own separate sentence, and a life distinct from the main life of the final decree. § 351 [549]. Alimony, as the term is used in divorce law, is the allowance which a husband, by order of court, pays to his wife living separate from him, for her maintenance ; or, it may be the provision which is made by the court for the sus- tenance of a wife divorced from the bond of matrimony, out [280] CHAP. XIX.] ALIMONY WITHOUT DIVORCE. § 352 of her late husband's estate, — this latter branch of the defi- nition, however, being a matter which pertains only to the modern law, not to the ancient.^ The allowance may be for her use either during the pendency of a' suit, in which case it is called alimony pendente lite, or after its termination, called permanent alimony. It has no common-law existence as a separate, independent right ; but, wherever found, it comes as an incident to a proceeding for some other purpose, as for a divorce ; no court in England having any jurisdiction to grant it, where it is the only relief sought.^ § 352 [550]. "I take it," says Lord Loughborough, "to be now the established law, that no court, not even the Ecclesi- astical Court, has any original jurisdiction to give a wife a separate maintenance. It is always as incidental to some other matter, that she becomes entitled to a separate pro- vision. If she applies in this court [a court of equity] upon 1 The following are some of the definitions of alimony, found in books : " Al- imony, although it properly signifies nourishment or maintenance, when strictly taken ; yet now, in the common legal and practical sense, it signifies that propor- tion of the husband's estate which the wife sues in the Ecclesiastical Court, to have allowed her for her present subsistence and livelihood, according to law, upon any such separation from her husband as is not caused by her own elopement or adul- tery." Godol. Ab. 508. "Alimony signifies that legal proportion of the husband's estate, which, by the sentence of the Ecclesiastical Court, is allowed to the wife for her maintenance, upon account of any separation from him." Ayl. Parer. 58. " Alimony, in its legal sense, may be defined to be that proportion of the hus- band's estate, which is judicially allowed and allotted to a wife, for her subsistence and livelihood, during the period of their separation." Ruffin, C. J., in Rogers v. Vines, 6 Ire. 293, 297. " Alimony is the maintenance or support which a husband is bound to give his wife, upon a separation from her ; or the support which cither father or mother is bound to give to his or her children, though this is more usually called maintenance." Strong, Senator, in Burr ». Burr, 7 Hill, N. Y. 207. " Ali- mony is maintenance afforded to the wife, where the husband refuses to give it, or ' where his improper conduct compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee-simple, subject to her control, or to be sold at her pleasure ; but a provision for her support, to continue during their joint lives, or so long as they live separate." Martin, J., in Wallingsford «. Wallings- ford, 6 Har. & J. 485. See also Parsons v. Parsons, 9 N. H. 309 ; Wooldridge v. Lucas, 9 B. Monr. 49 ; Clark v. Clark, 6 Watts & S. 85 ; 1 Bl. Com. 441. 2 Rees V. Waters, 9 Watts, 90, 93 ; Head v. Head, 3 Atk. 547 ; Lawson v. Shot- well, 27 Missis. 630, 633 ; Bankston v. Bankston, 27 Missis. 692. [281] § 353 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. a supplicavit for security of the peace against her husband, and it is necessary that she should live apart, as incidental to that, the chancellor will allow her separate maintenance ; so in the Ecclesiastical Court, if it is necessary, for a divorce a mensd ei thoro propter scBvitiam." ^ But other authorities raise at least the doubt, whether alimony as a permanent allowance to the wife is not solely confined to suits for divorce, and whether courts of equity can grant it upon a supplicavit for security of the peace. ^ Equity will sometimes enforce the specific performance of the husband's undertaking to pay money for the support of his wife, while the parties are living separate.^ § 353 [551]. In England, during the Commonwealth, the Ecclesiastical Courts were abolished ; and then the equity judges were expressly authorized, probably by a clause in their commissions,* to decide causes of alimony; and, after 1 Ball V. Montgomery, 2 Ves. 191, 195. And see post, § 373. ^ Upon this point, Mr. Sumner, in a note to Ball v, Montgomery, supra (Am. ed.), after referring to 2 Story Eq. Jurisp. ^ 1422, adds: "It is said, however, that there is no modern instance of the exercise of this authority upon a writ of suppli- cavit. 2 Story Eq. Jurisp. § 1423, 1476 ; 2 Roper Hush. & Wife, c. 22, 5 4, p. 309, note ; lb. § 5, p. 317 - 320 ; Clancy Mar. Women, b. 5,"c. 1, p. 453 - 455. Mr. Chan- cellor Kent seems to have doubted whether the writ ought now to be granted in Chancery, as the remedy at law was complete. Codd v. Codd, 2 Johns. Ch. 141. Mr. Justice Story adds, that it is difficult, upon the authorities, to maintain this doubt. 2 Story Eq. Jurisp. ^ 1476, note." The authorities cited in the remaining portion of Mr. Sumner's note may also be consulted. s Angler v. Angier, 1 Gilb. Ch. 152 ; Head v. Head, 3 Atk. 295, 547 ; Watkyns V. Watkyns, 2 Atk. 96 ; Hobbs v. Hull, 1 Cox, 445 ; Wilkes u. Wilkes, 2 Dick. 791 ; 2 Chitty Gen. Pract. Am. Ed. 434, 435, 462. * That the express authority stated in the text was granted to the equity judges, I can refer only to Fonblanqae, who, upon this point, says : " During the time of the troubles, commissioners were appointed to whom jurisdiction was expressly given [to hear causes of alimony], and whose decrees were held to be confirmed by the act for the confirmation of judicial proceedings." "Again : " It is observable, that, if courts of equity had an original and concurrent jurisdiction with the spiritual courts, it would have been unnecessary to give the commissioners, during the troubles, such jurisdiction ; and the doubt which was entertained could not have been raised, respecting the validity of their decrees, after the act confirming judicial proceedings." Fonb. Eq. 96, 97, note. It was so easy for an English writer to ascertain the fact, concerning this special authority having been conferred, or not, npon the commissioners, that it is not presumable this author is mistaken, though he seems not to have referred to the sources of his information. [282] CHAP. XIXj ALIMONY WITHOUT DIVORCE. ' § 364 the Restoration, their decrees were by statute confirmed. Accordingly, it has sometimes been erroneously supposed, that these judges took cognizance of this question as belong- ing to their appropriate jurisdiction, to prevent a failure of justice, simply because there were no ecclesiastical tribunals, or as succeeding to them. But obviously this could not be so ; since, if the matter pertained to the equity jurisdiction properly, they would have exercised this function both before and after the usurpation, without reference to the ecclesiasti- cal tribunals; — for the latter never claimed this authority, what they did in the premises having been to grant divorce, and to decree alimony only as a mere incident in the divorce suit ; — and since, if they took up the jurisdiction in the time of the Commonwealth, as the natural successors in the de- funct Ecclesiastical Courts, it must have been the jurisdiction which those courts had exercised, namely, to decide causes of divorce. But this they did not do ; they heard suits for alimony, not for divorce.^ ' § 354 [552]. We have seen, that ecclesiastical judicatories were never established in this country, either in the colonies or the States.^ But in some of the colonies and States, the courts of equity have exercised the authority, not of granting divorces, but alimony, where the latter was the only relief 1 On this subject, see Whorewood v. Whbrewood, 1 Ch. Cas. 153 ; Oxenden v. Oxenden, 1 Gilb. Ch. 1, 2 Vern. 493; Angier u. Angier, 1 Gilb. Ch. 152; Head V. Head, 3 Atk. 295, 547 ; Anonymous, 2 Show. 282 ; Lasbrook v. Tyler, 1 Ch. E. 44 ; Ashton v. Ashton, 1 Ch. R. 164 ; Russell v. Bodvil, 1 Ch. R. 186 ; Whor- wood V. Whorwood, 1 Ch. K. 223 ; Watkyns ». Watkyns, 2 Atk. 96 ; Duncan v. Duncan, 19 Ves. 394 ; Wilkes v. Wilkes, 2 Dick. 791 ; Foden v. Finney, 4 Russ. 428; Colmer v. Colmcr, Moseley, 118; Niebolls v. Danvers, 2 Vern. 671; Wil- liams V. Callow, 2 Vern. 752 ; Yeo v. Yeo, 2 Dick. 498 ; Hyat'si case, Cro. Jac. 364. Fonblanque says: "In Nicholls v. Danvers, 2 Vern. 671, proceedings had been had against the husband (as appears from the register's book, though not noticed in Mr. Vernon's Report^ in the Ecclesiastical Court, propter scevitiam." 1 Fonb. Eq. 96, note. See also 1 Mad. Ch. Pract. 386, note ; 2 Bright Husb. & Wife, 354 ; Shelford Mar, & Div. 598 ; Reeve Dom. Rel. 209 ; 2 Story Eq. 3a- risp. § 1422; Ayl. Parer. 59, 60; Godol. Ab. 503; ante, 4 352. The American cases are cited post, § 354 - 357. 2 Vol. I. § 71. [283] § 855 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. prayed ; and, in some of these States, perhaps also in States where the jurisdiction was never admitted as of common law right, the right has been conferred by statutes. ^ § 355 [553]. Thus, the High Court of Chancery in Mary- land exercised this jurisdiction, from the earliest colonial times, under the belief of its belonging to it, in the absence of ecclesiastical tribunals ;2 and, in 1777, a statute provided, "that the Chancellor shall and may hear and determine all causes for alimony, in as full and ample a manner as such causes could be heard and determined, by the laws of Eng- land, in the Ecclesiastical Courts there." Under this statute, the wife may have alimony for any cause authorizing the divorce from bed and board in England ; and even, some- times, under other circumstances ; ^ but the court under- stands itself not empowered to extend the remedy, and 1 Miller v. Miller, Saxton, 386 ; Lockridge v. Lockridge, 3 Dana, 28 ; Turrel a. Turrel, 2 Johns. Ch. 391. And see Mix v. Mix, 1 Johns. Ch. 108. So in Ohio. Swan's Stat. 294; Page on Div. 290. Jones v. Jones, Wright, 155; Hesler v. Hesler, Wright,^ 210 ; Bascom v. Bascom, Wright, 632 ; Questel v. Qaestel, Wright, 491 ; Wilson v. Wilson, Wright, 128; Johnston v. Johnston, Wright, 454; D'Arusmont w. D'Arusmont, 14 Law Reporter, 311, 8 West. Law Jour. 548. 2 Helms V. Franciscus, 2 Bland, 544 ; Fornshill v. Murray, 1 Bland, 479 ; Mao- namara's case, 2 Bland, 566, note ; Scott's case, 2 Bland, 568, note ; Govane's case, 2 Bland, 570, note. See also Raymond's Ch. Dig. 285. In Macnamara's case, decided anterior to the Revolution, the defendant claimed an appeal to the Arches Court, in England ; and his right to the appeal seems, on what principle it does not appear, to have been acknowledged. In the case of Galwith v. Galwith, 4 Har. & McH. 477, apparently adjudicated in the year 1689, the county court ordered, " that the said John Galwith [the defendant] take home with him his said wife Jane Galwith, to dwell with him as man and wife ought to do; or otherwise to allow and maintain her, 3,000 wt. of tobacco a year, to commence from that day." On appeal by the defendant to the provincial court, the following errors were assigned; namely, 1st. That the county court, upon reading the petition, without calling the said John to answer, passed judgment against him. 2d. That the said county court had no jurisdiction of the matter, being touching alimony, which is not recoverable but in chancery, or in the court of the ordinary. 3d. That the court cannot take cognizance of matters relating to separation and divorce be- tween man and wife, but such matters are only triable and examinable in the court of ordinary. The judgment was thereupon reversed, but we are left in doubt what was the precise ground of the reversal. ' Jamison v. Jamison, 4 Md. Ch. 289, 295. [284] CHAP. XIX.] ALIMONY WITHOUT DIVORCE. § 355 decree a divorce also.^ In early times likewise in North Carolina, bills in equity by the wife against the husband, claiming >limony, appear to have been sustained without question as to the lawfulness of the jurisdiction.^ In one of these early cases there was a demurrer, because the suit was brought by the wife without the intervention of a prochein amie ; but the demurrer was overruled, two precedents being cited, showing the practice of the court in these suits.^ The inherent jurisdiction of chancery to grant alimony is also acknowledged in Virginia,* in Kentucky,^ in South Carolina,^ and in Alabama.'' So it is in Jamaica and Barbadoes.^ 1 Helms V. Franciscas, and FornshiU v. Murray, supra. Whether the court would have jurisdiction aside from the statute, query. Wallingsford u. Wallings- ford, 6 Har. & J. 485. And see Hewitt v. Hewitt, 1 Bland, 101 ; Crane v. Me- ginnis, 1 Gill & J. 463 ; Wright v. Wright, 2 Md. 429 ; Wiles v. Wiles, 3 Md. 1 ; Dunnock v. Dunnock, 3 Md. Ch. 140. 2 Anonymous, 1 Hayw. 347 ; Spiller v. Spiller, 1 Hayw. 482, a. d. 1796, 1797. 5 Knight V. Knight, 2 Hayw. 101 ; ante, § 302-304. * Purcell V. Purcell, 4 Hen. & Mnnf. 507 ; Almond v. Almond, 4 Rand. 662. In Parcell v. Purcell the Chancellor admits, that doubt and contradiction attend the English authorities, and so proceeds to consider the question on principle. Where- upon he lays down the following doctrine, certainly sufficiently radical, not to say novel : " I hold, that, in every well-regulated government, there must somewhere exist a power of affording a remedy where the law affords none ; and this pecu- liarly belongs to a court of equity; and, as husband and wife are considered as one person in law, it is evident, that in this case, the law can afford no remedy; which is universally admitted to be a sufficient ground to give this court jurisdiction ■ and, therefore, it must entertain the bill." It is by no means universally admitted that a court of equity will take jurisdiction of a subject, simply because the com- mon law tribunals afford no remedy. 1 Story Eq. Jurisp. § 62. 5 Lockridge v. Lockridge, 3 Dana, 28. In Butler v. Butler, 4 Litt. 201, the court review the English authorities, deem them conflicting, and conclude to follow those most consonant to reason and equity. On this ground, the judges sustain the jurisdiction ; and further determine, that the statute which authorizes a decree of alimony in certain cases does not exclude their authority over cases not embraced in it, " which have strong moral claims." And see Boggess v. Boggess, 4 Dana 307 ; Wooldridge v. Lucas, 7 B. Monr. 49. 5 Jelineau v. Jelineau, 2 Des. 45 ; Prince ». Prince, 1 Rich. Eq. 282 ; Three- witts V. Threewitts, 4 Des. 560 ; Prather v. Prather, 4 Des. 33 ; Mattison ». Matti- son, 1 Strob. Eq. 387. ' Glover v. Glover, 16 Ala. 440. And see Wray v. Wray, 33 Ala. 187. » 1 Burgc Col. & For. Laws, 660 ; 2 Burn Ec. Law, Phillim. ed. 500; Shelford Mar. & Div. 368. As to Rhode Island, see Battey i>. Battey, 1 R. I. 212. [285] § 358 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. § 356 [654] . But these are exceptions to the general rule, and departures likewise from principle. In some of the other States, the jurisdiction has been expressly denied ; in still others, by necessary implication ; and probably it could not now be established in any State where it had not already been maintained,^ though there are some strength of argu- ment and some apparent weight of authority in favor of the jurisdiction. § 357. In Upper Canada tliere is a statute providing, " that the Court of Chancery shall have the like power, authority, and jurisdiction, in all cases of claim for alimony, that is exercised and possessed by any ecclesiastical or other court in England." And the court has held, not without some hesi- tation as to the true construction of the statute, that, under this provision, it can grant alimony, and only alimony, — not a divorce, not a restitution of conjugal rights.^ But it has been strongly intimated, that, under this statute, desertion, which under the English ecclesiastical law would furnish ground only for a suit for the restitution of conjugal rights, is a delictum on which the decree for alimony may be based.^ § 358 [555]. The causes for which, where this jurisdiction is acknowledged, equity will thus decree alimony, seem not to be very clearly defined. Desertion is held to be sufficient,* especially where it has been accompanied, as it is almost of 1 Kschlic. Fischli, 1 Blackf. 360; Peltier ». Peltier, Harring. Mich. 19 ; Bees V. Waters, 9 Watts, 90, 93 ; Pomeroy v. Wells, 8 Paige, 406 ; Parsons v. Parsons; 9 N. H. 309 ; McGee v. McGee, 10 Ga. 477 ; Doyle v. Doyle, 26 Misso. 545, 549 ; Yule V. Yule, 2 Stock. 138 ; Chapman a. Chapman, 13 Ind. 396, 397. And see post, § 369, 374, 384. 2 Severn v. Severn, 3 Grant, U. C. Ch. 431 ; Sonles v. Sonles, 2 Grant, TJ. C. Ch. 299. ' Severn v. Severn, supra, p. 447. * Prince v. Prince, 1 Eich. Eq. 282, 287 ; Wiles v. Wiles, 3 Md. 1 ; Jamison r, Jamison, 4 Md. Ch. 289. On the other hand, mere abandonment has been thought insufficient ; the husband must also refuse either to live with his wife, or contribute to her maintenance. Logan v. Logan, 2 B. Monr. 142. See ante, § 355, 357. [286] CHAP. XIX.] ALIMONY WITHOUT DIVOBCE. § 359 necessity, with a total neglect to provide for the wife.^ So is cruelty an adequate cause ; but it must have proceeded to the extent necessary to authorize an ecclesiastical tribunal to separate the parties from bed and board.^ And the wife who relies on ill-usage by her husband, must show her own conduct to have been correct,^ though it need not have been entirely blameless.^ § 859 [555]. Indeed, it seems to have been considered, what is probably the true view, that the equity court should require the same causes, which, in England, would justify the ecclesiastical, in either separating the parties from bed and board, or decreeing a restitution of conjugal rights.^ Yet adultery alone, according to some judicial views, seems in- suflBcient to lay the foundation for alimony, if the husband will agree to cohabit with his wife, and treat her well.® Where adequate cause for alimony was not shown ; but the complaining wife had left her husband, and he manifested a determination not to receive her back ; and there was a set- tlement of the estate which was hers before the marriage, by which settlement " the rents and profits of it were to accrue to the defendant and complainant during their joint lives, he to be entitled to take the same " ; and the defendant at first offered, in his answer, to divide these rents and profits equally 1 Parcell v. Purcell, 4 Hen. & Munf. 507 ; Butler v. Butler, 4 Litt. 201 ; Colmer V. Colmerj Moseley, 118. And see Battey v. Battey, 1 R. I. 212. ^ Taylor ti. Taylor, 4 Des. 167 ; Jelineau v. Jelineau, 2 Des. 45; Anonymous, 4 Des. 94 ; Almond v. Almond, 4 Band. 662 ; Lockridge u. Lockridge, 3 Dana, 28; Glover v. Gloyer, 16 Ala. 440. And see Vol. I. § 719, note. ' Anonymous, 4 Des. 94 ; Vol. I. § 764. Also it was observed in Kentucky, that, "although a wife not entitled to a dissolution of the conjugal relation may be en- titled to alimony, according either to our statute or the common law, yet a wife who has voluntarily abandoned her husband should not have a decree for her sepa- rate maintenance, unless her abandonment of him was, without her fault, rendered necessary for her safety or happiness, and was consistent with social order and public policy." Boggess v. Boggess, 4 Dana, 307. * Griffin v. Griffin, 8 B. Monr. 120. 5 Rhame v. Rhame, 1 McCord Ch. 197. And see Helms v. Franciscus, 2 Bland, 544; ante, § 355, 357. ' Prather v. Prather, 4 Des. 33 ; post, § 361 and note. [287] § 361 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. with her, — the court would not afterward, while Jie would not consent to accept of her return, allow him to withdraw the offer.^ In Maryland and Tennessee the courts have inti- mated, that, in a proper case, after a legislative divorce, there may be a judicial decree for alimony to the wife ; ^ but this doctrine seems not to rest very clearly either in judicial rea- son or in authority,^ thoiigli thp question is not absolutely free from doubt. § 360 [556]. The rule of evidence, that the confession of a defendant cannot be accepted as alone establishing the cause against him, in a suit for divorce, has already been considered.* The same rule should probably be applied in the alimony suit, now under examination. For though there may be doubt whether the judgment against the defendant in this suit is sufficient so to establish the marriage that this matter must ever after be deemed res adjudicata, the same as in a divorce suit ; and though possibly, not certainly, the effect of this decree upon the status of children afterward born may be different from that of a decree of separation from bed and board, — yet, even if there is a difference on these points, the judgment still relates to the same ques- tion of marriage or no marriage ; of dwelling together by married persons, or living separate ; of placing the parties beyond the inducements, at least, to live in actual matri- mony, or drawing them closer into tliis union ; whence the rule of esteeming the public to be a party, and therefore of requiring proof of all the facts in issue, has sprung. Yet a case of this kind has been heard on bill and answer alone ; where, however, the attention of the court was not directed to tlie point.^ § 361 [557]. The decree cannot be for a separation, which ' Anonymons, 4 Des. 94. ' Crane v. Maginnis, 1 Gill & J. 463 ; Richardson v. Wilson, 8 Yerg. 67. 8 See post, \ 381, 382. * Ante, ^ 240 et seq. 6 Codd V. Codd, 1 Bland, 101, note. And see Hewitt v. Hewitt, 1 Bland, 101 ; Wallingsford v. Wallingsford, 6 Ear. & J. 485 ; ante, § 262, note. C 288 ] CHAP. XIX.] ' ALIMONY WITHOUT DIVORCE. § 362 would be equivalent to a divorce from bed and board, the court having no power to grant such a divorce ; ^ but only for a separate support to the wife, while the parties remain separate.^ It is usually expressed, that the husband pay the alimony named therein, till he will ' agree to take back his wife, and treat her with conjugal kindness and affection.^ Even in a case where the husband was on terms of adul- terous intercourse with other women, the final order of the court directed, that he '^ pay her one hundred dollars per year during the term that they shall live separate and apart, or until he shall agree to cohabit with her, and tr>eat her as it becomes a man to treat his wife." * And an original bill may be maintained to set aside, for proper cause, a decree for alimony.^ § 362 [558]. In one case, the final adjudication provided, that the defendant give bonds to keep the peace toward his wife ; and then directed, that he convey certain property to trustees for her use ; but this latter part received the consent of his counsel, and the case does not clearly show, whether it would htive been ordered, if objection to it had been made.^ It seems, however, that, even with the consent of the parties, the court cannot make a valid order out of the common course of its jurisdiction ; such as to substitute something else for alimony, like a sale of the husband's lands ; and thereby accomplish any purpose which the parties could not reach by agreement, without judicial interposition.'^ And it has been considered, in Virginia, as plainly it follows from general principles, that the court cannot, on a bill of this kind, make any decree operating upon specific property ; it 1 Jelineau v. Jelineau, 2 Des. 45. 2 Anonymous, 2 Des. 198 ; Hewitt v. Hewitt, 1 Bland, 101. s Ehame v. Rhame, 1 McCord CIi. 197 ; Purcell v. Puroell, 4 Hen. & Manf. 507. See Slack v. Slack, Dudley, 6a. 165 ;. Head ». Head, 3 Atk. 547. • Prather v. Prather, 4 Des. 33. This absurdity seems necessarily to result from the fact, that the court has no power to decree a separation. See post, § 374. ^ Whorewood v. Whorewood, 1 Ch. Cas. 153. « Threewits v. Threewits, 4 Des. 560. T Wallingsford v. Wallingsford, 6 Har. & J. 485. And see ante, k 235. VOL. II. 19 [ 289 ] § 363 ACCOMPAmMENTS OF MAIN ISSUE. [BOOK V. must be for alimony.^ It has been held, on the authority of an English decisionj^ that, if the husband declares an inten- tion to abandon his wife, and to sell the property he got of her by the marriage, and carry off the proceeds, the Court of Chancery will restrain him, and compel him to convey it to trustees for the use of both the parties, with proper limi- tations.^ § 363 [559] . The suit for alimony abates with the death of either party. No bill of revivor can arrest this consequence ; 'and, if the wife has neglected to bring her alimony suit against the husband during his lifetime, she cannot, after his death, proceed against his estate in the hands of his execu- tors or administrators.* 1 Almond v. Almond, 4 Eand. 662. And see Parcell v. Pnrcell, 4 Hen. & Monfi 507 ; Wallingsford v. Wallingsford, 6 Har. & J. 485. 2 Gardner v. Walker, 1 Stra. 503. ^ Greenland v. Brown, I Des. 196. * Anonymous, 2 Des. 198 ; Gaines v. Gaines, 9 B. Monr. 295. And see Wal- lingsford V. Wallingsford, 6 Har. & J. 485 ; Glenn v. Glenn, 7 T. B. Monr. 285 ; Idwson v. Shotwell, 27 Missis. 630 ; Sackett v. Giles, 3 Barb. Ch. 204. [290] CHAPTER XX. PRELIMINARY INQUIRY CONCERNING THE QUESTION OP COSTS AS BETWEEN THE PARTIES, CONSIDERED IN DISTINCTION FROM ALIMONY. § 364. The general law of husband and wife establishes an identity of interest and condition between the two, the consequence of which is, that neither of them can sue the other. But when, in a matrimonial cause, the law permits the suit to be brought, it must, as a necessary incident, allow also to them a separate existence in respect to all those mat- ters which may be deemed parts of the suit. The legal truth, discussed in a previous chapter, that the wife may have, for the purposes] of the suit, a domicile separate from her hus- band's,^ is but a single branch of this larger proposition. § 365. Another branch of the proposition is, that, in a di- vorce suit, the wife may recover costs against her husband.^ And the doctrine not only holds true as to the main matter, but where, for instance, she applies for an increase of alimony, and prevails, she may have a judgment against her husband for her costs in this proceeding.^ There is on the other hand, no reason growing out of the identity of the parties, why a husband, prevailing in one of these suits, should not have his judgment for costs against the wife ; but, owing to the fact that the joint property is in the hands of the husband, and 1 Ante, § 124 et seq. 2 Symons v. Symons, 2 Swab. & T. 435 ; Thornberry v. Thomberry, 2. J. J. Mar. 322; Kendall u. Kendall, 1 Barb. Ch. 610; Graves r. Graves, 2 Paige, 62; Germond v. Germond, 1 Paige, 83 ; Stevens v. Stevens, 1 Met. 279. ' Bursler v. Burster, 5 Pick. 427. [291] § 366 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. perhaps for some other reasons also, the court will not ordi- narily, if it has any discretion in the premises, decree costs against a defeated wife.^ § 366. This is a matter, however, which depends so much upon statutes, and upon peculiar principles of jurisprudence prevailing in different States, that little can be said upon it, of a general nature, and it will not be wise to descend much into considerations of local law. In an Upper Canada case, where the wife sued her husband for alimony^ and failed, the husband was nevertheless decreed to pay -the costs.^ • Like- wise in an Alabama case, we have the following language from the learned judge : " It was manifestly improper to ren- der a decree against her [the wife] for costs, in a suit prose- cuted against her husband under any circumstances ; but, in this case, the court is of opinion that he should have been compelled by the decree to pay the same, as from the admis- sions of the answer it appears that she had probable cause for instituting her proceedings ; although she may not have been able to prosecute the case to successful issue." And it was further observed, that, independently of the husband's admissions in his answer, she might still have had a decree against him for costs, though she /ailed in her suit.* In Pennsylvania it was held, that, in a divorce suit, the husband when he prevails, cannot be subjected to the payment of costs to his wife. " Costs," said Strong, J., " are of statutory origin. The act of 1815, in its twelfth section, enacts, that the court may award costs to the party in whose behalf the decree or sentence (that is, of divorce) shall pass, or that each party shall pay his or her own costs ; but the act does not authorize the imposition of all the costs upon the successful party." ^ The doctrine in Kentucky also seems to be, that 1 De Rose v. De Rose, Hopkins, 100 ; Finley v. Finley, 9 Dana, 52 ; Word v. Word, 29 Ga. 281 ; Wood v. Wood, 2 Paige, 454 ; Reavis v. Reavis, 1 Scam. 242 ; Richardson v. Riciiardson, 4 Port. 467. 2 Ante, § 357. « McKay v. McKay, 6 Grant, TJ. C. Ch. 380. ♦ Richardson v, Richardson, 4 Port. 467, 478, 479, opinion by Goldthwaite, J. ' Shoop's Appeal, 10 Casey, 233, 235. [292] CHAP. XX.J COSTS AS DISTINGUISHED FEOM ALIMONY. • § 367 the prevailing husband is not liable, under the statute, to have costs taxed against him on the final disposition of the cause, but this point is perhaps not clear .^ § 367. We' have seen,^ that, generally, and aside from the operation of particular statutes, there will not be a judgment rendered against the wife for costs, though she fails in her suit. Yet there are circumstances in which costs will be de- creed against the next friend of the wife, where her suit is carried on or defended by a next friend ; ^ and even circum- stances in which, under some forms of the local law, a judg- ment for costs, it appears, will be made up against the wife herself, — a point not very strong on the authorities.* There is, on the other hand, an Illinois case in which it was held, that, where a bill brought by a wife for divorce is dismissed, it should not be with costs for the respondent ; and Caton, J., observed : " The court [below} by its decree [dismissing the bill and awarding costs against the wife] continued her under the disabilities of a feme covert, but subjected her to the lia- bilities of a feme sole. This portion of the decree against her was inconsistent with the position in which she was required to continue." ® In a Georgia case, it was observed by Benning, J. : " The question of costs in divorce cases stands, then, sub- ject to be decided by the common law. And the common law puts alimony, fees to the wife's counsel, and costs, all on the same footing, and makes the question who is to pay them, depend on the ability to pay them, of the parties respectively. As, however, marriage bestows the wife's property on the husband, in the absence of a marriage contract, the presump- tion primd facie is, that the Imsband is the only party able to pay them ; and consequently the husband is primd facie 1 Nikirk v. Nikirk, 3 Met. (Ky.) 432. = Ante, § 365. ' Mosser v. Mosser, 29 Ala. 313 ; Cornelius v. Cornelius, 31 Ala. 479 ; Ward ». "Ward, 2 Dev. Ch. 553 ; post, § 409. * Eldred v. Eldred, 2 Curt. Ec. 376, 7 Eng. Ec. 144 ; Errissman v. Errissman, 25 111. 136 ; Decamp v. Decamp, 1 Green Ch. 294. 6 Thatcher v. Thatcher, 17 111. 66, 67. [293] § 368 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. liable to pay them. This he may rebut by showing that the wife is able to pay them." ^ § 368. The view taken by the Georgia tribunal conducts us into the fuller discussion which is to occupy us through several succeeding chapters. Alimony pendente lite is not in- deed the same thing as costs ; neither is the money which the court orders the husband to pay to the wife for the pur- . pose of employing counsel, and the like, the same thing, in our American practice, as are tlie statutory taxable costs of which we are discoursing in this chapter ; but each of these things blends in tlie other, and it is not easy — at least, it is not practically best — to treat of them separately. This intro- ductory chapter will have its uses in preparing the mind of the reader for what follows. 1 Word V. Word, 29 Ga. 281, 284. [294] CHAPTER XXI. THE GENERAL DOCTRINE OP ALIMONY. § 369 [560]. In some preceding sections,^ a definition of alimony was given, together with some views concerning it. The doctrine of alimony springs up necessarily out of the soil of our law, by reason ,of the peculiar property relation which it establishes between husband and wife. Upon the mar- riage, the husband has vested in him all the present available means of the wife, together with tlje right to claim her future earnings and acquisitions. At the same time,^ the law casts iipon him the duty suitably to maintain his wife, according to his ability and condition in life.^ The wife is not under obligation to support the husband, even though she has a sepa- rate estate ; * yet there are circumstances in which, she having means, and he being destitute and unable to earn money, it may be her legal duty to support herself.^ The husband can- 1 Ante, § 351, 352. ^ Judge Story observes, that it is only in respect of the husband's duty to main- tain his wife, that the law gives him her fortune. 2 Story Eq. Jurisp. § 1419. His , duty to maintain her, however, is impaired neither by the fact of his receiving no fortune with her, nor by an antenuptial contract in which each party renounces all riglit to the property of the other, accruing by the operation of the law upon the marriage. "When such a contract exists, the husband is still obliged to aliment the wife, on a divorce, unless her separate estate is sufficient. Logan v. Logan, 2 B. Monr. 142, 149. But in the case of such a contract, let it be observed, the wife is still under the general obligation of law to serve her husband ; and her earnings^ subsequent to the marriage, are his property. ' Miller v. Miller, Saxton, 386 ; 2 Story Eq. Jurisp. § 1424 ; Neil v. Johnson, 11 Ala. 615. And see Vol. L § 553 et seq. * Methodist Church v. Jaqups, 1 Johns Ch. 450. 6 Wylly V. Collins, 9 Ga. 223. See Vol. I. § 818. " Nor had he the right to say, that she should earn what she could by her labor, and he would only bo answerable [295] § 371 ACCOMPANIMENTS OF MAIN ISSUK. [BOOK V. not abandon his duty to support his wife ; therefore, when the law in any case judges that she may liye apart from him, for her protection, in consequence of his wrong doing, it must also judge that he shall maintain her while so living. § 370 [560 a] . Prom the general doctrine mentioned in the last section, we deduce the several' secondary doctrines to be stated in the present series of chapters. But before we proceed with these, let a few general enunciations of legal truth be made ; since they will serve as guides to the reader over the following paths, otherwise apparently a little obscure at some places. § 371 [560 6] . When once a marriage is duly solemnized, each of the married parties has acquired certain legal rights, as respects the other, not to be forfeited unless for some breach of matrimonial duty. And when an erring one has broken the matrimonial engagement, the law gives to the innocent party such redress as the nature of the case, and the consti- tution of the tribunal allow. Suppose, for example, a hus- band has committed adultery, the court can neither watch him during all his after-life to prevent his repeating the offence, nor wipe out from his nature the stain which the sin has imparted, nor tate off the weight of sorrow from the mind of the wife ; but, if she chooses not to overlook the transgression, it can compel him to do for her what the mar- riage gave her the right to demand, in the way of pecuniary support. , for the difference between her earnings and the amount of the expense necessary for her support. Such is not the law of husband and wife. The husband must support his wife himself, or pay those who do support her in a reasonable manner." Cunningham v. Irwin, 7 S. & K. 247. It seems to me, that neither branch of this Statement is precisely accurate. The husband may require his wife to contribute her exertions for the common benefit, according to his pecuniary condition and sta- tion, and the customs of the society in which the parties move ; but, when she has done this, her earnings are in law his, and from the common fund he is bound, therefore, pot to contribute to her support, but to support her. And see Prince ». Prince, 1 Rich. Eq. 282 ; Callahan v. Patterson, 4 Texas, 61, 66. [296] CHAP. XXI.] GENEEAL DOCTEINE OF ALIMONY. § 373 § 372 [560 c]. Another proposition is, that, while the mar- ital relation subsists in law, the legal rights which the law gives the parties respectively to the property of each other, in the case of survivorship after the death of one of them, re- main. And though, in consequence of breaches of matri- monial duty,' the deceased one had been divorced from bed and board, still there was no need for the court, on decreeing the divorce, to give, unless it chose, to the innocent one, any support beyond what such one would have received in co- habitation. Yet, on the other hand, suppose the court, hav- ing a discretion in the premises, went beyond this point, and gave her more, still the excess should be regarded merely in the light of a slight recompense in damages for the injury sus- tained. § 373. The reader perceives, from these views, that this matter of alimony is nearly, if not quite, confined to divorce law. He will, however, do well to look back from this point at some previous sections in which it was discussed, whether alimony could be decreed as appurtenant to a proceedingnot of divorce, and especially whether it could be decreed in a suit instituted for its recovery alone.^ In a New Jersey case it was held, that the court cannot make an order of maintenance to the widow pendente lite, on her bill for dower. It was observed by the Chancellor : " The claim clearly does not fall within the equitable principle which allows to a wife a maintenance during the progress of a suit against her husband. The personal property of the wife is in the husband's hands and under his control during cover- ture. The wife is presumed to be entitled to support until it is shown that her claim is forfeited. In a controversy with her husband, it is just that she should have the means of enfor- cing her claim I know of no case in which this claim is allowed except as against the husband himself, and that only as incidental to a bill for divorce or other relief against the husband, except in the case specially provided by our 1 Ante, . Shoafo, 4 Fost. N. H. 564, 563, Eastman, J., remarks : " It is not too much to suppose, that there are those who would enter into the marriage relation solely with the view of possessing themselves of the property of their wives ; and who would readily sacrifice their virtue, if by so doing they could break up the marriafje contract, and at the same time retain the property of which they had gained possession. Nor is it too much to suppose, that a weak-minded woman might become tho vietini of an artful and unprincipled husband ; and yet in such a way that it would be impossible to produce any evidence iuiplieating him in her fall. To cast such a woman destitute upon tho world would be doing the grossest injustice, and at the same time be rewarding the most infamous iniquity." " 3 Law Ueporter, 219. "And for this most just, humane, and moral reason, that she may not be driven by want to continue in a course of viee." Best, J., in Joe V. Thurlow, 4 D. & R. H, 17. In Massachusetts, under tho provincial system, ■when in a ccriain instance tho governor and council granted to a husband a divorce from his wife for her adultery, they made her no lUlowanco out of his estate. Gaga. V. Gage, 2 Dano Ab, 309, a. d. 1788. » Pony v. Perry, 2 Barb. Ch. 311. [303] § 379 ACCOMPANIMENTS OF MAIN ISSDE. [bOOIT V. to the wife all or any part of her lands, tenements, and hered- itaments, and may assign to her such part of the real and personal estate of her husband, or order him to pay such sum of money, as may be deemed just and expedient." Upon this it was observed by Bell, J. : " The ordinary course is to allow alimony to the wife, where she is the injured party, and the libellant ; but the power of the court is not limited to th'at case. The wife may be in the wrong. She may have an unhappy temper, or an unfortunate disposition ; she may have ill-treated lier husband, or deserted him, or have other- wise, misconducted herself, and yet the property she may ask as alimony may be all such as was her own before her mar- riage, or such as has been accumulated, in whole or in part, by her own industry ; and her fault may be far from such as ought to be punished by the forfeiture of all her property, or her interest in the husband's property, thus leaving her to beg or starve. She may have so conducted that her hus- band may be well entitled to a divorce, and yet she may be a wronged and injured woman ; and there seems, therefore, to be good reason why the court should be vested with the power of making to her a just and reasonable allowance in any such case." ^ § 379 [565]. It is not the purpose of the writer to trace here the legislation of our States in detail ; but there are several of them in which it is withirj the discretion of the court to grant some provision to a wife divorced for her fault. Yet we may doubt the expediency of giving, as a general rule, alimony to such a wife ; though there are cases in which unquestionably she should have it.^ A statute exists in Illi- nois, authorizing the court which pronounces the divorce dissolving the marriage, to make such order concerning the custody of the children and support of the wife as may seem fit, reasonable, and just ; and in one case, the guilty wife had both alimony and the custody of the only child of the marriage 1 Sheafe v. Laighton, 36 N. H. 240, 243 ; Sheafe v. Sheafe, 4 Fost. N. H. 564. " Sec Fry v. Fry, 7 Paige, 461, 463 ; Fulk r. Falk, g Blackf. 561. [304] CHAP. XXII.] PERMANENT ALIMONY. § 381 decreed to her,^ — no bad speculation, if she had become weary of the society of her husband, or had conceived a pas- sion to torment him. There is an Ohio case, wherein alimony was allowed to the defendant wife on a divorce for her adul- tery ; no sufficient evidence appearing of but one criminal act, and there being hope she might be reclaimed. The prop- erty of the husband had been earned, after the marriage, by the joint efforts of the two parties. The court said, the wife " must not be turned out to prostitution and starvation." ^ And in several other States are statutes under which the courts have decided, that the guilty wife, on a divorce, is entitled to alimony, or a shar^ of the husband's estate.^ § 380 [566]. In Alabama it has been held, that, when a wife sues in equity for a divorce from the bond of matrimony, not claiming alimony of her husband, and he, in his answer, asks for an allowance by reason of his having paid debts of hers contracted before the marriage, this his prayer, thus brought forward, cannot be granted by direct adjudication. If the court could thus attend at all to it, the way of presenting the matter must be by cross-bill. Still, where the husband had made a settlement to the separate use of the wife and her children by a former marriage, the judges would not decree to her the relief she sought, unless she would execute a reconvey- ance to him of the property embraced in the settlement.* § 381 [567]. It has been held in Mississippi, that, although * the usual practice is to proceed for a divorce and for alimony by one bill, and have them awarded at one time, yet a party need not proceed thus ; but, if the question of alimony is not settled in the divorce suit, the wife may afterward sue for it by separate bill, either in the same court, or any other of cam- 1 Reavis v. Keavis, 1 Scam. 242. ^ Dailey ». Dailey, Wright, 514. » Pence v. Pence, 6 B. Monr. 496 ; McCafferty v. McCafFerty, 8 Blackf. 218 ; Gaines v. Gaines, 9 B. /tlonr. 295, 303 ; Richardson v. Wilson, 8 Yerg. 67 ; Lovett V. Iiovett, 1 1 Ala. 763. * Oliver v. Oliver, 5 Ala. 75. VOL. 11. 20 [ 3.05 ] § 382 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. petent jurisdiction.^ Concerning this point we may obserTe, that, without doubt, there is no necessity for the decree of divorce and of alimony to be rendered simultaneously ; but there is reason for question whether, according to the general doctrine, alimony can be granted otherwise than in the suit in which the divorce is pronounced. The better opinion appears to be, that the English Chancery has no power to entertain a bill for alimony, as supplemental to a parliamen- tary divorce ; and the Supreme Court of Indiana, with great apparent force of reasoning, maintained that it could not in- terfere to give a wife, divorced in Kentucky, alimony out of the husband's lands situated in Indiana, nether could it make a division of them in her favor ; although the Kentucky court,^ on pronouncing for the divorce, had held, contrary to the cur- rent of authority, that it was not authorized to take them into its consideration in assigning to the wife her share of the property. The party, having the right to litigate the ques- tion in one suit, could not, the Indiana court considered, bring it forward in another.^ In a like case, however, the tribunals of Ohio would take the jurisdiction by force of a statute ; at least, if the bill in Ohio were brought at the same time with the bill for divorce in the other State.* And there may be like provisions elsewhere in this country.^ § 382 [568]. In Tennessee, a man got from the legislature, on petition, a special act divorcing him from his wife, yet containing the provision, that nothing therein should deprive the wife " of her right to alimony, if by law she is entitled to the same." A general statute of the State had already declared, that " it shall be the duty of the court, in making up their decree, to decree to the wife so divorced such part of the real and personal property as they shall think proper. 1 Shotwell V. Shotwell, Sm. & M. Ch. 51 ; Lawson v. Shotwell, 27 Missis. 630, 635. And see Lyon v. Lyon, 21 Conn. 185 ; post, § 382. 2 Fishli V. Fishli, 2 Litt. 337. 3 Fischli V. Fisehli, 1 Blackf. 360. But see Crane v. Meginnis, 1 Gill & J. 463. * D'Arusmont v. D'Arusmont, 14 Law Keporter, 311, 8 West. Law Jour. 548. 6 See post, 4 382, 492. [306] CHAP. XXII.] PERMANENT ALIMONY. § consistent with the nature of the case, and shall appoint three freeholders to make partition accordingly." Thereupon she filed her bill for alimony, and she was permitted to recover it. The court considered, that, by the statute last quoted, she was entitled to the alimony, whether she was the guilty or the innocent party, and the court would take up the question where the legislature laid it down, and. proceed to the end. The opinion contained also the further intimation, that the same thing would have been done if there had been no such provision in the divorce bill ; moreover, that the right of the wife to a support from her husband was a constitutional right, which the legislature could not take away by a divorce bill, passed, as this was, ex parte, and without notice to her, even supposing it be effectual as against her to dissolve the marriage itself.^ § 383. The proceeding whereby alimony, as appurtenant to a suit for divorce, is to be obtained, — the general course of practice in this matter, — will come up for discussion in a separate chapter. It seemed desirable to the writer of these volumes to preserve substantially, in this fourth edition, the order of discussion which was pursued in the earlier editions, wherein the scope of the discussion was less wide than it is here. And in truth, the various doctrines which pertain to alimony — alimony being but a thing attendant on some- thing else — are of a nature to be nearly as well contem- plated in one order as in another. We shall next take a general view of the law of temporary alimony ; then we shall consider various doctrines which seem to belong equally to both kinds of alimony ; thence proceed, through a sufficient number of chapters, to bring under our review whatever else pertains to the subject. _i Bichardson v. Wilson, 8 Yerg. 67 ; Vol. l.^U; ante, § 358, 381. [307] CHAPTEE XXIII. ALIMONY PENDING THE SUIT, AND MONEY PAID THE WIFE BY ORDER OP THE COURT TO PROSECUTE OR DEFEND. § 384 [569]. When a suit is pending for divorce from bed and board, or from the bond of matrimony, or for de- claring a marriage duly solemnized void from the beginning, it is legally improper for the parties to live in matrimonial cohabitation, whatever is to be the result of the suit.^ Even if the husband offers to support the wife in his own house, with separate beds, she should not accept the offer.^ There- fore the single fact that the suit is pending, is, on "principles already laid down,^ alone sufficient to entitle the wife, who has no adequate means of her own, whether plaintiff or defendant, to alimony during its pendency.* It is not ordi- narily so while other judicial controversies are going on between husband and wife ; for those other controversies do not usually render cohabitation improper, but this controversy always does. § 385 [569]. Yet when, for any purpose, whether for di- vorce or for any other, there is pending such a suit between husband and wife as renders cohabitation improper, — in every such case, according to what appears to be a doctrine 1 Vol. I. 4 801. 2 Sykes v. Halstead, 1 Sandf. 483. And see Pinckard v. Pinckard, 22 Ga. 31. " Ante, i 40, 369, 374. * Jones V. Jones, 2 Barb. Ch. 146 ; Story v. Story, "Walk. Mich. 421 ; Shelford Mar. & Div. 533, 586 ; "Wilson v. "Wilson, 2 Hag. Con. 203 ; Burrill Law Diet, tit. Alimony ; 2 Chit. Gen. Pract. Am. ed. 463 ; Ayl. Parer. 59 ; Oughton, tit. 206. • [308] CHAP. XXra.] ALIMONY, ETC. PENDING SUIT. § 386 of the courts, though not very distinctly laid down, and not very firmly established in precedent where the suit is other than a matrimonial one, — the wife is to have some allowance for her separate support, made her by order of the court, out of the husband's property.^ Thus, where she was seeting to enforce against him an agreement to pay her a separate maintenance ; and he offered and expressed the wish to co- habit with her, but she had exhibited articles of peace against him, and had him under recognizance for good behavior ; Lord Hardwicke said, this was " an excuse, at least, for keeping from him for some time, till their passions might be ; supposed to subside, and they had a prospect, from the in- terposition of friends, to live happily together " ; and so he ordered him to pay her a gross sum, observing : " This is not making a decree, as has been said, before the hearing, but only doing what the husband himself is obliged to do, main- tain the wife till the cause is heard upon the merits ; and what I say now is abstracted entirely from any decree the court may think proper to make, if there should not then appear to be a foundation for the agreement set up by the bill." 2 The allowance was not a standing, periodical one, under a general order, as alimony usually is ; because it might be proper for the parties, before the termination of the suit, to come together again ; whereas, in proceedings for divorce, a reunion can never be proper until the cause is ended. And if this doctrine cannot be laid down as so dis- tinctly established in authority as we might wish, the reason perhaps is, that the cases for its application, outside of the divorce proceeding, are rare.^ § 386 [570]. As, however, the right tq alimony can result only from the marital relation, a fact of marriage between the parties must be admitted or proved, before there can be 1 See ante, § 373, 374. 2 Head v. Head, 3 Atk. 295. See also D'Arusmont v. D'Arusmont, 8 West. Law Jour. 548, 14 Law Reporter, 311; Yeo v. Yeo, 2 Dick. 498; Dickenson v. Mavie, 2 lb. 582 ; Perishal v. Squire, 1 lb. 31. > And see Collins v. Collins, 2 Paige, 9. [309] § 388 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. a decree even for alimony pendente lite} So also must the faculties, or ability, of the husband be admitted or proved ; this being essential in fixing the amount of alimony .^ Yet there are connected with these propositions some questions of practice, to be considered in another chapter. The mar- riage perhaps need not be so fully proved, or the faculties so exactly shown, in the interlocutory proceeding relative to temporary alimony, as is necessary on a final decree, § 387 [571]. Allied in the closest manner to this subject of alimony is the other indicated in the title to this chapter ; namely, the sustenance of the wife by the husband in respect of the prosecution or defence of the suit. This sustenance is, in faet, a sort of alimony ; the one, being for the defraying the ordinary expenses of the wife in the matter of living ; the other, being for the same purpose in respect to the matter of the suit. The husband, who has the control of the money out of which, were the parties dwelling together, the wife would be entitled to draw her support, while the wife is without means which she can herself command, should not only be made to aliment the wife as to her food and the like while the suit is going on, but aliment her also as regards the suit ; otherwise she would be denied justice.^ § 388. In the first volume it was observed, that we should in this other connection consider the question of the wife's 1 Post, § 402 et seq. ; Miles v. Chilton, 1 Robertson, 684 ; Smyth v. Smyth, 2 Add. Ec. 254, 2 Eng. Ec. 293 ; Purcell v. Pnrcell, 4 Hen. & Munf. 507 ; Durant w. Durant, 1 Add. Ec. 114, 2 Eng. Ec. 43; McGee ». McGee, 10 Ga. 477, 488. It is so also in Scotland. Campbell v. Sassen, 2 Wilson & Shaw, 309 ; Browne V. Barns, 5 Scotch Sess. Cas. n. s. 1288 ; 1 Fras. Dom. Eel. 438. 2 Butler V. Butler, 1 Lee, 38 ; Goodall v. Goodall, 2 Lee, 264, 6 Eng. Ec. 119; Thornberry v. Thornberry, 2 J. J. Mar. 322 ; Jelineau v. Jelineau, 2 Des. 45 ; Wright V. Wright, 3 Texas, 168, 179. " D'Aguilar v. D'Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 338 ; Belcher v. Belcher, 1 Curt. Ec. 444, 6 Eng. Ec. 372 ; Story v. Story, Walk. Mich. 421 ; Holmes v. Holmes, 2 Lee, 90, 6 Eng. Ec. 49 ; Fitzgerald v. Fitzgerald, 1 Lee, 649; 5 Eng. Be. 472 ; Bird v. Bird, 1 Lee, 572, 5 Eng. Ec. 455 ; Daiger ». Daiger, 2 Md. Ch. 335 i Coles v. Coles, 2 Md. Ch. 341 ; Tayman v. Tayman, 2 Md. Ch. 393. [310] CHAP. XXni.] ALIMONY, ETC. PENDING SUIT. § 388 power to bind her husband to pay her counsel fees and other like expenses, when she sues him for a divorce, or proceeds against him for a breach of the peace, and other similar matters ; ^ for, should it appear, that when she deems her- self compelled to proceed against him in a divorce suit, or to defend a divorce suit brought against her by him, she is not clothed with authority to employ counsel, to sum- mon witnesses, and the rest, on his account, making him answerable for them as for necessaries, the rule which re- quires him to supply her in the divorce suit with the money to pay for these things, will appear the more reasonable and the more i^nportant. There is an English case of no very ancient date, in which the proctor of a wife brought against the husband a suit under the following state of facts : " It was proved," says the report, " to be the practice in the Ecclesias- tical Courts, during the pendency of a divorce suit, to have the wife's proctor's bill of costs taxed every term, and paid by the husband under a monition, so that the wife's proctor in general gets paid by the husband, whatever be the event of the suit. This course had been pursued in the present case ; and the costs were paid in this manner up to Novem- ber, 1854. In February, 1855, the defendant's wife died, and the suit abated. The action was to recover the amouat of the plaintiff's bill from the beginning of November to the time of the wife's death." The divorce suit was one in which the wife was promoter ; and, in the proctor's suit before the common-law court, the plaintiff failed to show, to the satisfaction of the latter tribunal, a necessity for the wife to proceed in the former, or a sufficient apparent ground on which to base her cause. " The proctor must show," said Lord- Campbell, C. J., "that there was reasonable cause for instituting the proceeding." Therefore he failed to re- cover. But it was laid down, in the language of Cromp- ton, J., that, "where there is reasonable apprehension of violence, a divorce may be the most effectual protection ; and it may be a necessary within the rule which authorizes a 1 Vol. I. 4 554. [311 J § 389 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. wife, who has left her husband from reasonable apprehen- sion of cruelty, to pledge his credit for what is necessary to her." ^ But this doctrine, if it be accepted in the United States as just with us, does not go the full length of meet- ing the entire demands of the litigation ; it is not however, even so far as it goes, the doctrine which most prevails in this country. § 389. Thus it was held in New Hampshire, that a hus- band is not liable to an attorney for professional services rendered his wife' in prosecuting a libel for divorce against him upon the ground of adultery, — an offence which, could not, in this matter, be distinguished from cruelty, though possibly we might distinguish the divorce from the bond of nlatrimony, which follows adultery in New Hampshire, from the divorce from bed and board, which follows cruelty in England. Said Bartlett, J., speaking for the New Hampshire tribunal : " It is not sufficient for the plaintiffs merely to show, that the defendant's misconduct gave occasion for the proceedings instituted by the wife, but it must also appear that those proceedings were necessary for the personal pro- tection and safety of the wife." ^ At the same time, and consistently with this doctrine, the New Hampshire court in an earlier case had held, that, where it is necessary for the safety of the. wife to enter a complaint against her husband for a breach of the peace, the legal costs of the proceeding may be recovered against him. And where a wife applied to an attorney, who made out a complaint against her husband for a breach of the peace, which complaint was signed and sworn to by her, and proceedings were had thereon, pursuant to which the husband was, in default of bail, committed to the jail of the county, the husband was held liable to the attorney for such charges as would be good against com- 1 Brown v. Ackroyd, 5 Ellis & B. 819, 827, 829. For more of this case, see post, § 391. And see, as perhaps sustaining this view, Williams v. Fowler, McClel. & Y. 269. 2 Morrison v. Holt, 42 N. H. 478, 480. [312] CHAP. XXin.] ALIMONY, ETC. PENDINa SUIT. § 391 plainants in ordinary cases, and upon thq ground that the services were necessaries famished to the wife for her pro- tection.^ § 390. There seems to be but little judicial difference as to the principle upon which these cases are to proceed. Thus, where a husband had turned his wife out of doors, and she had exhibited articles of the peace against him, and her attorney sued the husband for the recovery of his bill on the wife's retainer about this business, Lord Ellen- borough laid down to the jury what may be deemed to be the everywhere received doctrine on the subject, as follows : " If she was turned out of doors in the manner stated, she carried along with her a credit for whatever her preservation and safety required. She had a right to appeal to the law for protection, and she must have the means of appealing effectually. She might, therefore, charge her husband with the necessary expense of the proceeding, as much as»for neces- sary food or raiment." ^ The difi&culty is to draw the line between cases which fall within this principle, and those which fall outside of it. In the earlier editions of this work, the matter was stated as follows : § 391 [571]. If the wife undertakes to sustain any of the expenses of the divorce suit, as to pay counsel, she is not liable on the undertaking, even though a divorce from the bond of matrimony ensues ; unless, subsequently to the di- vorce, she renews her promise of payment.^ Neither is the husband liable to the legal adviser whom she may employ, either in prosecuting or defending a divorce suit.* This at * 1 Morris v. Palmer, 39 N. H. 123. 2 Shepherd v. Mackoul, 3 Camp. 326 ; s. p. Turner v. Eooks, 2 Per. & D. 294, 10 Ad. &E. 47. 8 Wilson V. Burr, 25 Wend. 386 ; Viser v. Bertrand, 14 Ark. 267. * Wingu. Hurlburt, 15 Vt. 607; Dorsey v. Goodenow, Wright, 120; Shelton V. Pendleton, 18 Conn. 417 ; Coffin v. Dunham, 8 Cush. 404 ; McCullough v. Rob- inson, 2 Ind. 630; Williams v. Monroe, 18 B. Monr. 514; Johnson v. Williams, 8 Greene, Iowa, 97. During the pendency of a wife's bill for divorce, on the ground, among other things, that the husband was a lunatic, an order was made [313] § 391 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. least is the generi^l doctrine, certainly as applied to divorces from the bond of matrimony. But in a late English case, the proctor of the wife was said by the judges — for he was not permitted to recover under the facts appearing — to be authorized to claim of the husband his fees for prosecuting against him a suit for divorce from bed and board on the ground of cruelty, even though the suit did not succeed, provided reasonable cause existed for instituting it and carry- ing it ou.^ The case of a divorce suit from the bond of matrimony is different from this ; and it, perhaps this also, is unlike the case of the wife's exhibiting articles of the peace against her husband ; for there he is holden to her attorney, , provided the proceeding was necessary for her safety.^ But it is never necessary for her safety as wife, either to obtain a divorce from him, or to resist his obtaining one from her. by the court that he pay h'br for the support of herself and children §1,000 per year, until the final settlement of the cause, and execution was issued ; but before it was collected he was restored to reason, and the parties came into court and had the bill dismissed. And it was held, that an action of assumpsit would lie against the husband, to recover a sum of money due for the education of the children, on a, contract made by the wife, pending the divorce suit. Harris r. Davis, 1 Ala. 259. As to the husband's liability for the board of his wife's wit- nesses, see Graves r. Cole, 7 Harris, Pa. 171. 1 Brown v. Ackroyd, 34 Eng. L. & Eq. 214, 217, 5 Ellis & B. 819, Lord Campbell, C. J., saying : " A wife has authority to pledge her husband's credit for the costs of a divorce suit where there are reasonable, as well as where there are absolute, grounds for instituting the suit. Under such circumstances the suit would be necessary and fit for the wife's protection, and she would be authorized to employ a proctor, and her husband would be liable for his fees. It has been determined in Grindell V. Godmond, that, if the wife indicts her husband or an assault, he is not liable for the costs of the prosecution ; and rightly so, because that is not a proceed- ing for her protection, but for the punishment of the husband. But a divorce a mensa et ihoro on the ground of cruelty is u proceeding for her protection ; and, as she has no property of her* own, she can have no redress unless she is able to pledge her husband's credit. This is just as much a necessary as the costs of exhibiting articles of the peace against her husband are a necessary, as stated by Lord Ellenborough in Shepherd v. Mackoul, 3 Camp. 326. The same principle applies in both cases, although the facts which would entitle her to exhibit articles of the peace would not necessarily entitle her to sue for a divorce." And see more of this case, ante,- 4 388. Compare this case with Williams v. Monroe, 18 B. Honr. 514. 2 Shepherd ». Mackoul, 3 Camp. 326 ; Williams v. Eowler, McClel. & Y. 269 ; Turner v. Rookes, 10 Ad. & E. 47, 2 Bright, Hus. & Wife, 8. [3U] CHAP. XXIII.] ALIMONY, ETC. PENDING SUIT. § 394 The resemblance in this respect is nearer a criminal prose- cution on her behalf against him for an assault, where he cannot be made to pay her counsel fees and other like ex- penses.^ § 392. It is plain, that, whatever be the true doctrine re- specting the matter discussed in the last few sections, this doctrine aifords no adequate help to a wife proceeding for a divorce, or defending herself against her husband's divorce suit. What she needs is, not merely the right to pledge his credit, or to recover her costs at the end of the suit ; it is to use money in the suit, the same as does her husband ; it is to stand before the tribunal which administers one law alike to husband and wife, on an equal and common ground with him. And by this primary doctrine of legal reason should all the secondary doctrines relating to the same matter be tested. Let us carry this leading doctrine in our understand- ings and in our memories, while we proceed to. see what secondary rules the courts have laid down. § 393. It should be also borne in mind, that the word " costs," which appears in the books in connection with this topic, means something different in the English law upon the subject, from what it means in this country generally. In most of our States the costs of a suit a,re certain fees and ex- penses which are entered up, in the judgment against the losing party, as a part of the final judgment ; but, in the English matrimonial law, the term includes not only this meaning, it extends further also, and signifies those expenses which are to be borne by the husband, among which, and as a part of which, are embraced what in our common-law tribu- nals are called costs. § 394 [572]. When the wife has sufficient separate prop- erty, the reason for giving her either temporary alimony, or 1 GrindcU v. Godmand, 13 Legal Observer, 467, 1 Nev. & P. 168, 5 Ad. & E. 755, 2 Har. & AV. 339. [315] § 395 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK Y. money to defray her expenses in the suit, does not exist, and she is not entitled to either.^ The court will consider whether her separate means are sufficient ; and, if not, will decree ali- mony to supply the deficiency. If she has an income adequate to her own support, but not to meet also the expenses of the suit, and she forbears to apply for alimony, but does apply for her expenses, the court will give her the latter.^ Sir Herbert Jenner Fust once said : " It would have been much to the satisfaction of the court, if it could have found any case in which the costs have been apportioned between the husband and wife, where the incomes of both parties have been small ; but I have never met with a case of the kind, nor am I aware that any such rule ever existed." ^ Yet per- haps this is not a precedent which should have weight with us. In cases where the wife is not allowed to claim of the husband her expenses in the suit during its progress, on the ground of her having sufficient separate estate, she may still have her costs as the prevailing party, on its termination, if otherwise entitled to them.* § 395 [ 573] . When therefore the wife is carrying on her suit for a divorce, and the husband has no property except what is already in her custody, neither the allowance of tem- porary alimony nor of money to prosecute the cause can be 1 Ante, § 375 ; Furst v. Farst, Poynter Mar. & Div; 260, note ; Davis 7). Davis, ib. 261, note; Fyler v. Pyler, Deane & Swabey, 175. In New York, alimony pen- dente lite was denied the wife in her suit for separation, where it appeared she had gone to reside with her father, who had agreed with the husband to support her, in consideration of his making no claim for her services. Bartlett ». Bartlett, Clarke, 460. " D'Aguilar v. D'Aguilar, 1 Hag. Eo. 773, 3 Eng. Ec. 329, 338 ; Belcher v. Belcher, 1 Curt. Ec. 444, 6 Eng. Ec. 372 ; Wilson v. "Wilson, 2 Hag. Con. 203 ; Logan V. Logan, 2 B. Monr. 142; Collins v. Collins, 2 Paige, 9 ; Holmes v. Holmes, 2 Lee, 90, 6 Eng. Ec. 49 ; Turst v. Turst, 2 Lee, 92, note, 6. Eng. Ec. 50 ; Rose v. Rose, 11 Paige, 166. " Belcher v. Belcher, supra. In this case the husband's income was 510?. and the wife's 236 I, per annum, and she was allowed to tax her costs. * D'Aguilar v, D'Aguilar, supra ; Wilson v. Wilson, Poynter Mar. & Div. 263, note ; ante, ^ 365. [316] CHAP. XXin.] ALIMONY, ETC. PENDING SUIT. § 396 made her.^ Yet probably it is not alone a sufficient circum- stance to bring a case within this principle, that the husband has no visible or actual estate ; for we shall see, that alimony may be awarded out of his income or his ability to earn money .^ Where the husljand is plaintiff, if he is destitute both of property and ability, the court will not directly re- quire him to furnish the wife with alimony pendente lite, or with money to defend, but will suspend the suit until some provision is made for her.^ If he cannot aliment her, and give her the means of defence, he cannot have his divorce.* Where, however, the complainant was an infant without pecuniary resources, and the suit was prosecuted by his father as his next friend, and the defendant wife applied for an order on this next friend to furnish funds out of his own estate for her defence ; yet, it appearing from affidavits pro- duced that she was a common prostitute, keeping a house of ill-fame ; the court declined either to make the order, or stay the proceedings, until the husband should arrive at full age.^ § 396 [574]. Enlightened by these principles concerning alimony generally, and alimony pending the suit for divorce, let us consider the question sometimes arising in our courts, whether, when a statute gives the tribunal jurisdiction over a specific cause of divorce, but is silent concerning alimony, or provides only for permanent alimony, the temporary can then be awarded ; and whether costs, as they are termed in England, or money to defray the expenses of the suit,- can also be given. This question seems plain on principle ; first, the authority to make the order belongs to the court under the law imported by our forefathers to this country ; sec- 1 Laurie ». Laurie, 9 Paige, 234. * Post, § 446. " Tlie court may also compel him [the husband] to devote a part of his daily earnings to the same object [the support of his wife and family] pend- ing the suit." Chancellor Walworth in Kirby v. Kirby, 1 Paige, 261, 262. 8 Bruere v. Bruere, 1 Curt. Ec. 566, 6 Eng. Ec. 391 ; Walker v. Walker, 1 Curt. Ec. 560. * Purcell V. Purcell, 3 Edw. Ch. 194. 5 Perkins v, Perkins, cited in Osgood v. Osgood, 2 Paige, 621, 622. And see on the subject generally of this section, Cason v. Cason, IS Ga. 405. [317] . § 398 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V ondly, if this were not so, still it springs iip necessarily out of the legal relation of the parties, and the condition of facts appearing of record before the court to which the application is made. And if any one principle of our jurisprudence is more worthy of commendation than another, it is, that the tribunals may always be pressed to action whenever the case comes within established legal rule, though not within any precedent.^ § 397 [575]. Yet the North Carolina court decided, that, as the statute of divorce was silent concerning temporary ali- mony, and as it contained no intimation of an intention to establish tlie»ecclesiastical practice, this temporary allowance could not be ordered. The court however reserved the further question, whether it would give relief to a husband oppressively pursuing his wife, without means, for a divorce, until he would furnish her with the funds necessary for her defence.^ In Vermont, this matter was thus summarily dis- posed of : " The statute gives this court, which in applica- tions for divorce acts as a court of law, no power to grant alimony, except after divorce granted." ^ And in Massachu- setts a late case holds, that, until Stat. 1855, c. 137, § 6, expressly conferred the authority on the courts, they could not order this temporary support.* § 398 [576] . These decisions however are overborne, not only by the judicial reasons involved in the matter, but by the current of American authority also. Thus, temporary 1 The court in Maine has held, that the alimony which is allowed by a partic- ular statute is incidental to a divorce; so, when another statute provides that a single judge may hear questions of divorce, the result is, that he may hear and pass upon questions of alimony also. Jones v. Jones, 18 Maine, 308. 2 Wilson V. Wilson, 2 Dev. & Bat. 377. In this case Mr. Justice Gaston ques- tioned the policy of allowing temporary alimony. Upon which Chancellor Kent observes : " I am entirely convinced, from my own judicial experience, that such a discretion is properly confided to the courts." 2 Kent Com. 99, note. And by Stat. 1852, t. 53, the authority is now vested in the tribunals of North Carolina. Taylor v. Taylor, Jones, N. C. 528. 2 Harrington ». Harrington, 10 Vt. 505 ; s. p. Hazen v. Hazen, 19 Vt. 603. * Shannon 2). Shannon, 2 Gray, 285. And see'Coffin v. Dunham, 8 Cash. 404, 405. . [318] CHAP. XXra.] ALIMONY, ETC. PENDING SUIT, § 398 . alimony and money for the prosecution or defence, — things which go together in principle, though differing in name,^ — one or both, have been awarded by the courts where the statutes were silent,^ in New York,^ Michigan,* Kentucky,^ New Jersey,^ Missouri,'^ Georgia,^ and Maine ; * and, in suits 1 See Dorsey v. Goodenow, Wright, 120; North ». North, 1 Barb. Ch. 241 ; Coles V. Coles, 2 Md. Ch. 341 ; Tayman v. Tayman, 2 Md. Ch. 393. But in a Bhode Island case, an order for money to carry on the suit was refused, on the ground of former practice, though it was intimated that temporary alimony was allowable. Sanford v. Sanford, 2 K. I. 64. And see Williams v. Monroe, 18 B. Monr. 514. ^ Possibly, in some single instauce, I may be mistaken in supposing there was no statutory provision ; for I have not access to all the former statutes of every State. The present condition of the statute law of a State does not always indicate what it was upon this subject at a previous date ; for not unfrequently the legisla- ture expressly authorizes the courts to grant ad interim alimony, though they hdd before done the same thing without the express direction. Yet the statements in the text are substantially correct, I believe them correct in every instaifte. ' North V. North, 1 Barb. Ch. 241. This decision is entitled to peculiar weight, because the statute did provide for an allowance to the wife, to a certain extent ; but the provision was held not to take away the common-law right where the statute was silent. Mix v. Mix, 1 Johns. Ch. 108, by Chancellor Kent. Indeed, in New York there is no statute in terms empowering the court to decree tempo- rary alimony, but it is provided, that, in every suit brought either for a divorce or separation, the court may, ip its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit during its pendency. And it is the constant practice there to decree alimony pendente lite, besides making the wife this allowance for the expenses of the suit. 2 Barb. Ch. Pract. 265. * Story V. Story, Walk. Mich. 421. This decision was made in 1 844. By the Rev. Stats, of 1 846, p. 333, power is given the court to require the husband to pay any sums necessary to carry on or defend the suit during its pendency. * 'Fishli ». Fishli, 2 Litt. 337, A. D. 1822, the following statutory provision, how- ever, being in force : " Pending a suit for a divorce, the court may make such tem-* porary orders relative to the property and parties as they shall deem equitable." Act of Jan. 31st, 1809, ^ 8, 1 Littell & Swigert's Statutes, p. 443. In 1831, it was made, by statute, the duty of the husband to provide a support for the wife during the pendency of the suit, unless she was living in adultery. Whitsell v. Whitsell, 8 B. Monr. 50. ^ Amos V. Amos, 3 Green Ch. 171 ; Paterson r._Paterson, 1 Halst. Ch. 389. 7 Byan ». Ryan, 9 Misso. 539. On examination of the statute law, as it stood at this time, and still remains, it appears that provision was made for permanent ali- mony ; also, that the court " may order any reasonable sum to be paid for the sup- port of the wife, during the pendency of her application for a divorce." Act of March 19, 1835, But see, as perhaps variant from the doctrine of the text. Coles v. Coles, 2 Md. Ch. 341. [327] § 407 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. appearing that, if the bill should not he sustained as a bill for divorce, the court would still have jurisdiction over it for the purpose of providing for the suitable support of the wife and children out of the husband's estate, pursuant to a statutory provision, ad interim alimony was granted.-' Drunk- enness in the plaintiff wife will not of itself take away her right to an advance of money to carry on her suit, and tem- porary alimony. But the court, before giving her the ali- mony, will take care it shall not be misapplied.^ § .407 [581 a]. Some recent cases, however, seem to qualify a part of the doctrine of the last section f though it is sub- mitted, the part thus apparently qualified ought to stand as there stated. Thus the New Jersey court seems to have looked into the case, on afiidavits concerning its merits, in respect of the matter of alimony pendente lite and counsel fees.3 In another New Jersey case, the defendant husband had b^en declared in another proceeding a lunatic, and the wife then applied for the temporary alimony. The learned Chancellor rejected the application, saying : " I think it would be improper to make the order. It would be made against a party who has been declared a lunatic by this court. The order implies a default and neglect of a moral obligation on the part of the defendant. This ought not to be imputed to a lunatic. The embarrassment in enforcing such an order is also an objection to making it."* As to the former of these two adjudications, let us observe, that, not only is the receiving of affidavits concerning the merits of a cause con- trary to the general practice,^ but the practice, if established, will require the court substantially to pass twice on the same question, contrary to the usual course of things, and will thereby unnecessarily burden both the wife and the court. 1 Mix V. Mix, 1 Johns. Ch. 108. See Turrel a. Tarrel, 2 Johns. Ch. 391 j Ex- parte King, 27 Ala. 387. " Saunders v. Saunders, 2 Edw. Ch. 491. ' Dougherty v. Dougherty, 4 Halst. Ch. 640. See also Martin v. Martin, 4 Halst. Ch. 563 ; post, 4 409, note. * McEwen v. MoEwen, 2 Stock. '286. ^ Ante, § 406 ; post, § 423. [328] CHAP. XXm.] ALIMONY, ETC. PENDING SUIT. § 409 while it will delay the supply of her needs unduly. As to the other matter, if a prbceeding is carried on at all against a lunatic, no reason appears why his property, if he has property, should not as well pay the expenses, as well sup- port the wife also, as though he were not a lunatic ; and the person who has it in possession should be directed to dis- burse. If, however, in any case the court has suspicion that the wife is not herself directing her cause, but that it is carried on by others without her direction, very important is it for this matter to be determined before an order is made for the temporary alimony.^ § 408 [582]. The former court of chancery in New York refused to the defendant wife her advance to defend the suit, and her temporary alimony, until her answer had disclosed the nature of her defence.''' And when it consisted in a denial of the adultery charged, she was required to make oath to it, in order to obtain this allowance ; though she was not, for any other purpose, obliged to answer under oath. But when she answered under oath, the answer was held to be, for the purpose of the application, conclusive.^ Yet since a wife might successfully resist the suit without deny- ing her guilt ; as, by showing, in recrimination that her husband was guilty also ; if she set up such a special de- fence upon her information and belief, she, of course, could not give it the weight of her own affidavit, but it seems she must support it by affidavits of witnesses, before she could have the allowance.* The legal propriety of reqjiiring the answer on oath, and the affidavits of witnesses, is matter for consideration a little further on.^ § 409 [583]. Moreover, in New York, a distinction in this question was taken between bills for the dissolution of the 1 Swearingen v. Swearingen, 19 Ga. 265. 2 Lewis V. Lewis, 3 Johns. Ch. 519 ; s. p. Allen ». Allen, Hemp. 58. 8 Williams v. Williams, 3 Barb. Ch. 628 ; Osgood v. Osgood, 2 Paige, 621 ; Wood V. Wood, 2 Paige, 108 ; ante, ^ 406. * Osgood V. Osgood, supra. ' Post, § 423. [ 329 ] § 409 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. marriage, and bills for a separation from bed and board. Thus, -while in a suit for the dissolution of the marriage the wife was entitled to her allowance as of course, if she had properly set forth upon her oath a legal ground of action or defence ; yet, in suits for a separation only, if the parties had severally presented, each upon oath, a good case, and a strong impression was on the whole left in the mind of the court that the husband was the more injured one, the wife could not have the allowance unless she further satisfied the court of the merits of her cause.^ This modification of doctrines, in their application to the divorce suit from bed and board, is not quite in harmony with what is held in England, and generally in the other American States.^ The New York rule was drawn from the peculiar legislation of the State, which provided, that the suit by the wife for separation, un- like the suit for a dissolution of the marriage, should be brought through a responsible person as her next friend,^ who should be answerable to the defendant for the costs he might be put to by the commencement and prosecution of it, if it should eventually be found to have been instituted with- out sufficient reason. And a needless burden would be cast on the husband if he were compelled to advance money to the next friend, who must ultimately refund it with interest.* But the new Code of procedure in this State at first author- ized the wife to sue for the limited, as for the full, divorce, in her own name alone ; yet it was afterward amended, and a next friend became requisite, whether she was suing or de- fending, ajid whether the divorce sought was from bed and board or from the bond of matrimony.* Afterward the Code 1 Bissell o. Bissell, 1 Barb. 430. And see Worden v. Worden, 3 Edw. Ch. 387 ; HoUerman ». HoUerman, 1 Barb. 64. And compare with Osgood v. Osgood, 32 Paige, 621. See also Jones v. Jones, 2 Barb. CIi. 146; Snyder ». Snyder, 3 Barb. 621, 624. 2 See Portsmouth v. Portsmouth, 3 Add. Eo. 63, 2 Eng. Ec. 428. 2 See ante, § 302 - 304. ' Chancellor Walworth in Jones v. Jones, supra ; Laurie v. Laurie, 9 Paige, 234. 5 Shore v. Shore, 2 Sandf. 714, 8 N. T. Legal Observer, 166 ; Meldora v. Mel- dora, 4 Sandf. 721 ; Thomas v. Thomas, 18 Barb. 149 ; Voorhies N. Y. Code, 2d [330] CHAP. XXm.] ALIM0N7, ETC. PENDING SUIT. § 410 was agaia altered, and a next friend became in none of these cases necessary. Whether there has been another alteration still, the author does noffleem it worth his while to examine, or encumber these pages with stating.^ § 410 [584]. Where the wife's bill for divorce is taken joro confesso against her husband, she may have a reasonable counsel fee taxed in her costs, as well as ad interim alimony .^ But where she is defendant, and suffers the bill to be taken pro confesso against he», she is not entitled to costs, even though the bill is dismissed for want of proof, and she can- not have an allowance of money to defend the suit ; for, as against her, the husband's allegations must be deemed true ; and all further inquiry is merely to satisfy the court of just cause existing, and no collusion.^ ed. § 114, and notes, 4th ed. p. 101. See also Wood v. Wood, 8 Wend. 357. It is the practice, sometimes at least, in Ohio, for the wife, on asking alimony, to bring in afiSdavits of witnesses taken on notice, showing a prima facie case. Ed- wards V. Edwards, Wright, 308 ; Wooley v. Wooley, Wright, 245 ; B'Arasmont V. D'Arasmont, 8 West. Law Jour. 548, 14 Law Keporter, 3U. Mr. Page says : " In Ohio, the application for temporary alimony is generally founded on a motion to the court. Reasonable notice of the motion is given to the husband, and affida- vits are presented to show the fact of marriage, the separation, the cause of the application, and the condition of the husband in life. These affidavits are also taken upon notice." Page on Div. 270, referring to the above-cited cases from Wright, and to Martin v. Martin, Wright, 104, I will observe in passing, — it not being my intention to go into the question of practice here, — that this method can hardly be taken with safety as a guide elsewhere. See also Slack v. Slack, Dudley, Ga. 165 ; McGee v. McGee, 10 Ga. 477 ; Wright v. Wright, 3 Texas, 168; Longfellow v. Longfellow, Clarke, 344; ante, ^ 487 ; post, § 423, &c. 1 The second edition of this work contained a statement of the first provision of the Code, and of the next subsequent alteration. When the third edition was be- ing prepared, no reported cases presented themselves showing a further alteration ; 60 the section was printed in the third edition as it stood in the second. But a legal gentleman of New York kindly pointed out to me, when too late to make the correction, that I had failed to give the law as it stood last amended. This in- stance illustrates both the folly and the uselessness of attempting, in a legal work intended for circulation in all the States, to keep pace with the fluctuating statutes. Either the author will -succeed in such an attempt, or he will not : if he succeeds, his page will become so loaded with such matters that every practitioner will turn from it to his own statute books ; if he fails, his attempt is a fortiori useless. 2 Graves v. Graves, 2 Paige, 62. " Perry v. Perry, 2 Barb. Ch. 582. And see Graves v. Graves, supra ; ante, § 236, 406. [831} § 412 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. § 411 [585]. Where, in New York, the husband has made, under an order of court, an advance of funds to the wife to carry on her suit, if she prevails, her^axed bill of costs against him is to be reduced by deducting therefrom the amount of the allowance thus made her, less the reasonable sum which she may have paid for counsel fees and other expenses not covered by the taxed bill.^ This equitable rule prevents the wife from making any speculation out of the advance. Tlie general doctrine is, that the husband is to pay the wife, be- sides the temporary alimony, her actual and reasonable ex- penses in the suit, but no more. And it was admirably laid dqwn in a Scotch case, that " the taxation of the accounts must be as between agent and client, with this material qualification, that the agent is to be held as acting without special instructions, and therefore liable for the propriety and reasonableness of his proceedings." ^ If a wife, wantonly and without probable cause, introduces into her pleadings matter she cannot prove, this may be ground for disallowing her claim in part, though she succeeds in her suit ; but the mere fact of her having failed to prove a particular part of her allegation is itself not sufficient for this purpose.^ § 412. There are some decisions by the present Matrimo- nial Court of England, from which useful light may be gathered. Thus, it is laid down in one case, that the wife's costs are not taxed, in these cases, on the same principles as in suits at the common law. For example, if there are sev- eral issues at common law, the prevailing party cannot have costs taxed on those issues wherein he fails ; but it is other- wise in divorce cases. And Cresswell, J., observed: "The question of the principle on which costs are to be taxed in matrimonial suits has not yet been settled ; but I appre- hend that I must adopt, as far as I can, the principles on 1 Kendall v. Kendall, 1 Barb. Ch. 610. 2 Taylor v. Binnie, 4 Deas & Anderson, 314, 10 Scotch Sess. Cas. 18. And see Soules v. Soules, 3 Grant, U. C. Ch. 113. ' Soilleux V. Soilleux, 1 Hag. Con. 373, 4 Eng. Be. 434. And see Dorsey o. Goodenow, Wright, 120. [332] CHAP. XXin.] ALIMONY, ETC. PENDING SUIT. § 413 which the Ecclesiastical Courts proceeded. I am informed that the principle of taxation in those courts was as between party and party ; but that term had a very different construc- tion from that put upon it in common-law courts, because there they only allow the costs of such issues as are found for the persons who are to receive costs. I think that the only limit which can with propriety be put upon the allow- ance of the costs of the different issues raised in this court is this : where the taxing officer is satisfied that an issue has been vexatiously and improperly put on the record, so as to occasion a wanton and unnecessary increase in the amount of costs, he is not to allow the costs of that issue." And the same rule was deemed to apply to the number of witnesses ; costs were to be allowed for such witnesses of the wife as were brought to court in good faith. And upon the mat- ter of the witnesses' expenses the learned judge observed : " There is the question of the expense of taking witnesses to Paris, for the purpose of giving evidence as to identity and handwriting. In the common-law courts the expenses in- curred by witnesses in obtaining information are not allowed. K a witness makes a journey to learn something, he is not allowed the expenses of his journey. I haye inquired whether the same principle was applied to the taxation of costs in the Ecclesiastical Courts, and I am told it was not, but that where a journey to procure information was neces- sary to prove the case, the cost of the journey was allowed as a necessary expense for the wife. I think a reasonable amount should be allowed for those expenses. If the regis- trar [who is the taxing x)fficer], in allowing fifty guineas for instructions for the brief, included those expenses, he will probably not allow anything more, but it is a matter for his discretion." ^ § 413. In the Ecclesiastical Court, the general rule was to permit the wife to have two counsel — there were to be two counsel on a side — and to make her an allowance out 1 Allen V. Allen, 2 Swab. & T. 107, 110, HI. [333] § 414 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. of her husband's funds for the payment of the two, but no more. And where, in one case, the proctors had agreed between themselves that there should be but one counsel on a side, the court, under the particular circumstances of the case, held the wife not to be bound by the agreement, and permitted her to have two, at the husband's charge.^ In a case before the new Matrimonial Court, the question coming up at the end of a suit in which the wife had pre- vailed, and the bill of costs presented on her behalf to the registrar for taxation having amounted to £ 361 4s., which by this ofi&cer was cut down to £ 265 16s. Id., from which taxation both parties appealed, the costs of employing three counsel for her were allowed by the court. " I have en- deavored," said Cresswell, J., " to ascertain the principle on which the wife's proctor's costs used to be taxed ; I find that it is the same as in other cases ; and that no distinction was made because the husband has to pay the costs on both sides. It is true, that, under the old practice, two counsel only would have been allowed ; but, where the evidence is given orally in open court, this principle is inapplicable ; there are not only a party's own witnesses to be examined, but the witnesses of the other side to be cross-examined. As to this particular case, it lasted half Friday, all Saturday, and till late on Monday." Yet he refused to allow also the expenses of a country attorney to be added to those of the city one.2 § 414. In another case, where the question came up on the taxation of the wife's costs during the pendency of the suit, the learned judge refused to allow anything for what had been done before the suit was actually undertaken ; for instance, he confirmed the registrar in rejecting, says the report, " va- rious expenses in taking opinions and advice previous to ' the instructions for a petition.' " Moreover, various items for attendance on the petitioner's father were disallowed ; Cress- 1 Money v. Money, 1 Spinks, 117. ^ Suggate V. Suggate, 1 Swab. & T. 497. [334] CHAP. XXin.] ALIMONY, ETC. PENDING SUIT. § 416 well, J., observing : " I find that it -would be quite contrary to the practice of the Ecclesiastical Courts to allow for attend- ance on any one except the party herself. It would appear from the aspect of the bill, that Mr. Weller [the wife's father] taking a natural interest for his daughter in the suit, looked into the attorney's ofi&ce whenerer he passed that way, and talked matters over " ; but the attorney's bill, for this talking, the judge declined to compel the husband to pay.^ § 415. These several cases will illustrate the proposition, that, in this court, the husband is to pay the full amount required to meet the actual expenses of the wife, conducting her cause in good faith, with ordinary prudence, and accord- iiig to the usages of the court and of the legal profession with whom she has to deal. Where a plea of condonation was brought forward by the defendant wife, but this matter, so far from being proved, was actually abandoned by her counsel at the hearing, the husband was still compelled to pay her proctor's expenses incurred upon this plea. " It is difficult," said the Judge Ordinary, " to draw the line in such cases, and a proctor refusing to bring before the court any defence set up by his client, and not plainly unfounded, would incur a very grave responsibility, and therefore I think the costs must be allowed, although I cannot doubt that there was a miserable conspiracy to entrap the husband into a position which might be urged as evidence of condona- tion." 2 § 416. These cases also illustrate another proposition ; namely, that the question is precisely the same whether it comes up in the course of the proceedings upon an applica- tion in behalf of the wife for money to help her to carry them on, or whether it arises when the proceedings ai*e closed; and she, having prevailed, applies to the court to have her costs — that is, her whole expenses in relation to the pro- 1 Dickens v. Dickens, 2 Swab. & T. 103, 105. 2 Wells V. WeUs, 1 Swab. & T. 308, 312. [335 J § 418 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. ceedings — taxed against her husband. But there is this practical limitation ; namely, that, if the wife omits to make any application to the court until after the suit is ended, or, if she makes application before, but receives less money than she needs, and if she has failed in the suit, she is then too late to make any, or any further, demand. " The founda- tion of the rule of the Ecclesiastical Court," it was observed, " was, that the wife should be enabled to bring her case to a hearing and defend herself, and so up to any time previous to the hearing the husband was generally liable to have the wife's costs taxed against him, and the court has so far followed the rule ; but, if the wife has brought her case to a hearing, howsoever, and fails, the husband has never then been made liable to her costs." ^ § 417. To meet, however, every exigency, it has of late become the practice of the English Matrimonial Court to order a sum of money to be paid into the registry by the husband, out of which the wife's taxed costs shall be im- bursed. This practice was adopted to relieve the husband from the necessity of having them actually paid before the hearing, " when it is so difficult to form a correct judgment of what the actual costs will be." ^ But if by any oversight the husband has not been ordered to pay money enough into the registry, and the hearing takes place, and the wife fails in her suit, the deficiency cannot then be made up, — the same principle applying here, which was mentioned in our last section.^ § 418. The reader is aware, that the course of things is such in our American courts as not to admit of the exact practice in respect of costs, whereby the ends of justice are in these cases subserved in the English Matrimonial Court. But while the details of procedure may differ, the same 1 Keats V. Keats, 1 Swab. & T. 334, 358. And see ante, § 388. ^ Hepworth v. Hepworth, 2 Swab. & T. 414, 416. 3 Sopwith V. Sopwith, 2 Swab. & T. 105 ; Glennie v. Glennie, 3 Swab. & T. 109. [336] CHAP. XXra.] ALIMONY, ETC. PENDING SUIT. § 419 end may be, and in most of our States is, attained here as there. In the English House of Lords, where judicial pro- ceedings used to be in effect carried on for divorce a vinculo, though in the form of an application for a parliamentary bill, the husband was required to furnish the wife with money to procure professional assistance.-^ And in one case before the Matrimonial Court, the Judge Ordinary, alluding to this practice, observed : " That, I think, though not precisely in the same form, affords me a sufficient principle on which to act ; and I shall " — adopting the principle, and shaping the procedure to accord with the usual course before the particu- lar judicial tribunal — " make the order for the taxation of the wife's costs up to the present time." ^ In like manner, our American tribunals mould the common law or the statu- tory right, whichever it may be, to suit their own forms, yet preserve the right as unimpaired in its substance as possible. § 419. This so extended statement of the English practice seemed to the writer to be made necessary by the fact, that there was no other so available a way open to him, whereby he could convey to the reader an exact idea of the principle upon which this doctrine of the wife's costs, as it is called in England, or the doctrine of her being alimented in respect of the expenses of the suit, proceeds. In the United States, the statutes differ, and the practice of the courts differs ; yet the pretty uniform object is to attain the same end which is described in the foregoing sections. In Massachusetts, under the statute, it was laid down, that the amount which the court will require a husband to pay for his wife's expenses in the cause, is not to exceed what may be deemed, under all the circumstances of the case, a reasonable amount for the compensation of counsel and the payment of the other charges, without regard to what might properly be de- manded, as between counsel and client, by the counsel act- 1 Sopwith V. Sopwith, 2 Swab. & T. 105, 106 ; Llewelyn's Divorce BUI, 1 Macq. Scotch Ap. Cas. 280. 2 Weber w. Weber, 1 Swab. & T. 219, 221. VOL. n. 22 [ 337 ] § 421 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK Y. ually employed. " The view of the court is," it was said, " that they cannot enter into the question as between counsel and client, as to what charges may properly be made by the coimsel actually employed";^ for the reader perceives, that, if the court did, this would enable a wife, irrespective of the demands of her particular case, to retain the most eminent counsel at the bar on her side, — a luxury which, in the ma- jority of cases, husbands do in fact deny to themselves. § 420. The Massachusetts doctrine, mentioned in the last section, suggests another ; namely, that, although the husband is properly to pay the whole expenses of the wife about the suit ; and although, as matter of poetic theory, there is alike one law for the rich and for the poor, wherefore the poor person ought to have as good a lawyer, and to expend as much in incidental things, when he brings or de- fends a suit, as does the rich man ; yet since, in real fact,, poor people do not spend so much money in their lawsuits as rich ones, a poor husband should not, in these cases, be required to provide so much money for his wife as should a rich one. The principle here is analogous to that on which temporary alimony proceeds, yet it is not exactly the same. And there are no cases which will much help us in elucidat- ing the principle. In Georgia, where the issues presented involved the question of the wife's chastity, and she was of previous good character, and the husband was worth twelve thousand dollars, it was deemed that five hundred dollars was not an excessive sum for him to be required to pay for her counsel fees. " As nothing," said Stephens, J., " can be dearer to a lady than her character for chastity, so nothing could justify greater elpense in its defence." ^ § 421. But it is deemed not best to conduct this discus- sion further. The reader who desires to consult more cases 1 Baldwin v. Baldwin, 6 Gray, 341. As to the matter under our earlier statute, see Coffin v. Dunham, 8 Gush. 404. 2 Collins ». Collins, 29 Ga. 517. [338] CHAP. XXm.] ALIMONY, ETC. PENDING StdT. § 423 on this subject than have been already referred to, will do well to look into those which are here mentioned in a note. Some of them will assist him only by way of illustration ; yet each has in it something, which, in some circumstances, may be useful.^ § 422 [586] . A statute in Kentucky directs the courts to provide for the support of the wife during the pendency of the suit, unless she is living in adultery. This duty is im- perative ; and, when an application is made for alimony j»ew- dente lite, and it is not claimed she is living in adultery, the only further matter open for inquiry relates to the amount of the husband's estate, and whether or not the wife is already suitably provided for by him.^ § 423 [587]. In the practice of the Ecclesiastical Courts, the question of the wife's right to alimony pendente lite, when her pleadings were defective, could not arise ; for the question of the sufficiency of the pleadings, in those courts, is determined on their admission.^ But if this were not so, quite probably we should have the English rule, the same as the rule elsewhere,* that alimony could not be given pendente lite to a wife whose record case would not entitle her to a final decree, — a rule, however, which should nowhere apply except when the defect is a palpable one, and the question of law is free from doubt. The English rule therefore is, that, when a suit is instituted by or against the wife ; and 1 Tacker v. Carlin, 14 La. An. 734 ; Bell v. Jones, 10 Md. 322 ; Hart v. Hart, 1 1 Ind. 384 ; Pinckard v. Pinckard, 23 Ga. 286 ; Morrill v. Morrill, 2 Barb. 480 ; North V. North, 1 Barb. Ch. 241 ; Goldsmith v. Goldsmith, 6 Mich. 285 ; Forrest V. ^Forrest, 5 Bosw. 672 ; Pearson v. Darrington, 32 Ala. 227 ; Farwell v. Farwell, 31 Maine, 591 ; Simmons v. Simmons, 1 Eobertson, 566 ; Greg v. Greg, 2 Add. Ec. 276, 285 ; Dwelly v. Dwelly, 46 Maine, 377 ; Ex parte King, 27 Ala. 387 ; Ex parte Smith, 34 Ala. 455; McEwen ». McEwen, 2 Stockton, 286 ; Ex parte Per- kins, 18 Cal. 60; Helden ». Helden, 9 Wis. 557, 11 Wis. 554; Kline v. Kline, 1 PhUad. 383, bottom paging; Thompson v. Warren, 8 B. Monr. 488; Meyar v. Meyar, 3 Met. Ky. 298, 303. 2 Whitsell V. WhitseU, 8 B. Monr. 50. ' Ante, 5 220. * Ante, § 406. [ 339 ;i § 424 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. the plaintiff's allegation is admitted, and the husband has acknowledged, or she has proved, a fact of marriage ; she is at once, on establishing his faculties,^ entitled to a decree for her ad interim alimony and costs ; no other condition being imposed upon her.^ This simple rule, whether on the whole it should be preferred to the New York rule or not, seems ad- mirably just, and seems to cover the entire ground of reason on which the allowance of alimony and costs ad litem is based. For while there is no very clear objection to requiring of the wife an oath ^ as a pledge of her sincerity, even this, in circum- stances and suits where she could not be compelled, for other purposes, to make disclosures under oath, would place her on a footing inferior to her husband, where the true policy of the law, and the dictates of justice, demand that the parties should stand on equal ground. But especially there seems to be no satisfactory reason, why, when she is sued for a divorce, she should be compelled to lay her whole case before counsel, and answer her husband's bill, before she has an allowance of alimony and means of defence, — proceedings attended with delay and expense, sometimes embracing a large share of the time and cost of the suit. Neither does there appear to be any sufficient cause for requiring her to produce affidavits of witnesses ; which, as they cannot be read on the hearing, involve a waste of labor and expense, but disclose to her husband how she intends to establish her case, while he cannot be compelled to make to her the like disclosure in turn. § 424 [588] . Alimony pendente lite is usually made, by the terms of the order itself, to commence from the return of the citation.* This is the true rule ; " for, till then, the wife may be considered as able to obtain subsistence on the credit 1 Butler V. Butler, 1 Lee, .38, 5 Eng. Ec. 299. 2 CooteEc. Pract. 338; ante, h 384-386; Poynter Mar. & Div. 247 ; Ough- ton, tit. 206. ' Ante, § 408. ' Hamerton v. Hamerton, 1 Hag. Ec. 23, 3 Eng. Ec. 17 ; Bain v. Bain, 2 Add. Ec. 253, 2 Eng. Ec. 293. [340] CHAP. XXIII.] ALIMONY, ETC. PENDING SUIT. § 425 of her husband." ^ But it may be made to commence earlier or later ; earlier, as from the date of the citation, where the husband is promoter, and he does not use due diligence in its return ; ^ later, as where the wife had an income of 300Z. per year of her own, and it was two years before she applied for the alimony. In this case the court of appeal directed it to commence from the date of the decree below .^ § 425 [589]. We have seen that, till alimony is decreed, the husband is liable for the debts of the wife, as though the suit were not pending.* Therefore all sums which he has paid on her account or to her, subsequently to the time when this allowance is to commence under the order of the court, are to be deducted as part payment of the alimony.^ For these reasons it has always been considered desirable that the question of alimony pendente lite be settled at an early stage of the suit.^ Yet the wife does not absolutely lose her right by any delay in making her application ; and the allowance may be made, both of temporary alimony and expenses of the suit, even as late as the final entry of the decree for divorce, or at the same time with the decree for permanent alimony,'^ — a proposition, however, which may be found to be somewhat qualified in some courts by doctrines stated in previous sections.^ Or the decree for permanent alimony may — so it is held in New York — make this al- lowance to commence from the filing of the bill, when such a course is just and reasonable f though the true rule in or- dinary cases is, that permanent alimony shall commence from 1 Loveden v. Loveden, 1 Phillim. 208. ' LoTeden v. Loveden, supra. » Bees V. Rees, 3 Phillim. 387, 1 Eng. Ec. 418. * Ante, § 401. 5 Hamertoa v. Hamerton, 1 Hag. Ec. 23, 3 Eng. Ee. 17 ; Harris v. Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153. And see Coles v. Coles, 2 Md. Ch. 341. s Brisco V. Brisco, 2 Hag. Con. 199. ^ Frankfort v. Erankfort, 3 Curt. Ec. 715 ; Melizetu. Melizet, 1 Parsons, 78. 8 Ante, §388,416,417. 9 Forrest v. Forrest, 25 N. Y. 501 ; Burr v. Burr, 7 Hill, N. Y. 207. In this case, temporary alimony had been ordered and paid ; and the court directed that the amount so paid be deducted from the permanent alimony. But see Kicketts v. Kicketts, 4 Gill, 105. And see post, § 461. [341 J § 426 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. the date of the sentence.^ In an Upper Canada case, where the wife, who was complainant, had neglected to apply for temporary alimony, the court still refused to order the per- manent alimony to commence at a period earlier than the date of the decree. " The cases," said the Vice-Chanoellof, " show, I tliink, conclusively, that in England permanent ali- mony is not gran table till sentence or decree." ^ Yet if we look into the reason of the matter we must conclude that, under special circumstances, not always as of course, the per- manent alimony should be made to commence with the bringing of the suit, though from the sum thus found to be due, the temporary alimony, if any were paid, should be de- ducted, and there might also be other equitable deductions required. § 426 [590]. Where, in the English ecclesiastical practice, there was an appeal, the permanent alimony ordered by the Superior Court, was usually made to commence from the date of the sentence in the court below ; because the appeal sus- pended the sentence, and if it did not so commence, there might be an interval during which the wife would have no maintenance. But when she was guilty of laches in prose- cuting lier appeal, the rule was for the alimony to commence from the return of the inhibition.^ 1 Cooke V. Cooke, 2 PhiUim. 40, 1 Eng. Ec. 178; Kempe ». Kempe, 1 Ec. 532, 3 Eng. Ec. 233 ; Durant v. Durant, 1 Hag. Be. 528, 3 Eng. Ec. 231. 2 Soules V. Soules, 3 Grant, U. C. Ch. 113, 115. ' LoTeden v. Loveden, 1 Fhillim. 208. [342] CHAPTER XXIV. EXPOSITIONS CONCERNING BOTH KINDS OP ALIMONY. § 427 [591]. Alimony is not a sum of money, or a specific proportion of the husband's estate, given absolutely to the ■wife ; but it is a continuous allotment of sums payable at regular periods, for her support from year to year.^ It must secure to her, as wife, a maintenance separate from her hus- band: an absolute title in specific property, or a sale of a part of the husband's estate for her use, cannot be decreed or confirmed to her as alimony.^ Even where a statute author- ized the court to allow the wife on a divorce from bed and board, " such alimony as her husband's circumstances will admit, not exceeding one third of the annual income or profits of his estate or occupation ; or to assign to her separate use such part of the real and personal estate of the husband as the court shall think fit, not exceeding one third part thereof, as the justice of the case may require ; which shall continue until a reconciliation shall take place between the parties"; it was held, that an assignment of specific property to the wife, under the latter clause, does not vest the ownership in her, so as to enable her to convey a good title to it by sale. It gives her only the use of it until reconciliation, or the death of one of the parties. And where a wife had sold property so assigned to her, the husband on her death was held entitled to recover it back.^ 1 De Blaquiere ». De Blaquiere, 3 Hag. Be. 322, 5 Eng. Ec. 126 ; Wilson v. Wilson, 3 Hag. Ec. 329, note, 5 Eng. Ec. 129. " Maguire v. Magulre, 7 Dana, 181 ; Wallingsford v. Wallingsford, 6 Har. & J. 485 ; Purcell v. Purcell, 4 Hen. & Munf. 507 ; Almond v. Almond, 4 Hand. 662 ; Lockridge v. Lockridge, 3 Dana, 28 ; Russell v. Russell, 4 Greene, Iowa, 26. ' Rogers ».• Vines, 6 Ire. 293. [343] § 429 ACCOMPANIMENTS OF MAIN ISSUK. [BOOK V. § 428 [592]. So alimony cannot be allowed for the term of the wife's life ; ^ because it is a maintenance to her ,2 while the husband's duty to maintain her ceases at his death. Therefore the expression in the decree of alimony should be that it continue during the joint liyes of the parties, or until reconciliation and recohabitation. But for the security of the wife against the designs of a husband who might, for the purpose of frustrating the decree, entice her into a momentary reunion, and then expel her or renew his wrongful conduct ; it has been considered better the decree should state gener- ally, that it is to continue during their joint lives, and that the court reserves the right to change the allowance from time to time, according to circumstances. It has been deemed proper also, to require of the husband a bond, with approved security, that the alimony shall be paid according to the de- cree, in instalments ; reserving the power to compel payment from time to time by attachment, sequestration, or otherwise.^ The form of the decree, however, is probably not the same in all courts ; * but it is unnecessary to discuss this matter further here. § 429 [593]. Still, on general principles, aside, it seems, from considerations of the form of the decree, the court may at any time, and from time to time, on any change in the cir- cumstances of the parties, increase or reduce the sum allotted for alimony, temporary^ or permanent.^ And Dr. Lushing- ton has observed : " Where there is a material alteration of 1 Lockridge v. Lockridge, 3 Dana, 28. ^ Ante, § 351. 3 Lockridge », Lockridge, 3 Dana, 28 ; Logan v. Logan, 2 B. Monr. 142 ; May- hugh V. Mayhngh, 7 B. Monr. 424 ; Faff v. Paff, Hopkins, 584. * See ante, § 228 ; Burr v. Buit, 7 Hill, N. Y. 207. ' Cox V. Cox, 3 Add. Ec. 276, 2 Eng. Ec. 531 ; Amos v. Amos, 3 Green Ch. 171 ; McGee v. McGee, 10 Ga. 477, 491. ' Otway V. Otway, 2 Phillim. 109 ; Rogers v. Vines, 9 Ire. 293 ; Richmond v. Richmond, 1 Green Ch. 90 ; Bursler v. Bursler, 5 Pick. 427 ; Holmes o. Holmes, 4Barb.-295; Barber v. Barber, 1 Chand. 280; Sheafe v. Sheafe, 36 N. H. 155; Saunders v. Saunders, 1 Swab. & T. 72 ; Foote v. Foote, 22 111. 425. So also un- der the Arkansas statute, Bauman v. Bauman, 18 Ark. 320. As to Illinois, sea Wheeler v. Wheeler, 18 III. 39. [344] CHAP. XXIV.] BOTH KINDS OF ALIMONY. § 431 circumstances,^ a change in the rate of alimony may be made. If the faculties are improved, the wife's allowance ought to be increased ; and, if the husband is lapsus facultatibus, the wife's allowance ought to be reduced. Applications of this sort are of rare occurrence. I only remember two instances where applications of either kind have been successful, the case of Foulkes and Foulkes for an increase ; ^ and Cox and Cox^ for a reduction."* § 430 [593] . Applications to change the amount of ali- mony once fairly settled, ought evidently to be carefully scrutinized ; but, if both parties act in good faith in the exercise of their best judgments, both parties must live. When the husband, asking a reduction, alleges an altera- tion in his circumstances, the court will consider whether it has been brought about by any improper conduct, and especially by any attempt to defraud the wife of her ali- mony.^ And it was once held, under the particular facts of the case, that the reduction of the husband's income by un- profitable speculations was no ground for a proportionate re- duction of permanent alimony, allotted twenty years before.^ The result of this case, however, should plainly not be ele- vated into a general rule ; for, in some circumstances, failure in speculations should in justice be taken into the account, on the one hand, while success in speculation would surely be taken into the account on the other hand.'^ § 431 [593.] It has been held in New York, that the wife cannot have her alimony increased by reason of her increased expenses growing out of rendering support to a person whom 1 See Westmeath v. Westmeath, 3 Knapp, 42; Pemberton v. Pemberton, 2 Notes Cas. 17. 2 Foulkes V. Poulkes, Poynter Mar. & Div. 256, note. ° Cox ». Cox, supra. * De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 129. ^ Lockridge v. Lockridge, 2 B. Monr. 528, 3 Dana, 28. And see Rees ». Eees, 3 Phillim. 387, 1 Eng. Ec. 418; Kirkwall v. Kirkwall, Poynter Mar. & Dir. 255, note. 5 Neil V. Neil, 4 Hag. Ec. 273. ' See post, § 449 - 451. [345] § 432 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. the husband is under no legal obligation to maintain.^ Like- wise in an English case the court held, that a husband can- not have the alimony reduced by reason of his having to pay debts contracted by the wife anterior to the allotment of temporary alimony. "It is not alleged," said Dr. Lushing- tou, "that during that period the husband furnished the wife with any means of subsistence whatever ; and it is now established by the decree of this court, that, by reason of his cruelty, the wife was justified in separating herself from him. Under such circumstances I will not enter into a consider- ation whether the expenses were extravagant or not; the whole fault is at the door of the husband : he compelled her to leave his home, and left her without the means of sub- sistence, and so situated it might be difficult for her to get credit and live economically. But be this as it may, the application is altogether too late ; and such a deduction from permanent alimony would be without precedent." ^ The ap- plication to vary the amount of alimony is to be made by sum- mary motion, or petition in the original cause, not by a new proceeding.^ § 432. In one of the early Tennessee cases it was held, that a husband who has been divorced from bed and board, and decreed to pay alimony to his wife, cannot avoid the payment of it, on account of her subsequent lewdness and adultery. But this result was based on the direct words of the statute. " It is believed," said Whyte, J., " that this question depends solely on our act of assembly concerning di- vorces. Sec. 9 says, that, for certain causes therein specified, and due proof thereof made, it shall be lawful for the court to grant the wife a divorce from ' bed and board, and also to allow her such alimony as her husband's circumstances shall admit of. Sec, which shall continue until a reconciliation takes place, or the husband by his petition oflFers to cohabit with her again, and use her as a good husband ought to do.' " 1 Halsted v. Halsted, 5 Duer, 659. 2 Harmar v. Harmar, Deane & Swabey, 282, 284. 3 Bauman v. Bauman, 18 Ark. 320, 333. [346] CHAP. XXIV.] BOTH KINDS OF ALIMONY. § 433 And it was further added, that matter of adultery, supposing the charge to be true, " is otherwise provided for by the act, and a higher remedy given him than that sought by his plea ; to wit, a divorce from the bond of mati-imony."^ § 433. Some questions relating to the increase or the re- duction of the alimony, where the divorce is from the bond of the marriage, depending upon considerations applicable only to this kind of divorce, will be considered in a chapter farther on.2 It may be observed here, that it is difficult, perhaps impossible, to lay down such rules relating to the increase or the reduction of the alimony, as shall be of easy application to all cases, and shall be found just in all. Plainly, the question, when it comes up on such an application, is not the same question, to be decided over again, which was involved in the original decree. The decree settled something ; but a new question arises every day afterward ; and it is this new ques- tion, not the old one, on which the court passes when asked to increase or reduce the alimony. There is in our law no prin- ciple which would permit the judge, in the absence of fraud or anything of the kind, to overhaul the original sentence, when asked to pass a new one in these cases. The original sentence, therefore, is to be taken to have been just at the time it was pronounced, yet it is not to stand as a bar to the new case. If, indeed, the original decree of alimony was meant to be a mere nominal one,^ leaving the question to be fully adjudged afterward, then it should not have the same force which in ordinary circumstances would be accorded to it. And in an Upper Canada case, the court, having increased the wife's alimony from £ 25 to £ 200 a year, in consequence of the husband's increased faculties, added : " Should any application be made to this court to reduce the allowance to the wife in consequence of the altered cir- 1 Sloan V. Cox, 4 Hayw. 75, 76, 77. See Begbie v. Begbie, 3 Halst. Ch. 98 ; Griffin v. Griffin, 23 How. N. T. Pr. 189, 21 lb. 364. 2 Post, H77aetseq. ' See Shotwell v. Shotwell, Sm. & M. Ch. 51 ; Lawson v. Shotwell, 27 Missis. 630 ; Chapman v. Chapman, 13 Ind. 396 ; Bankston v. Banliston, 27 Missis. 692. [347] § 435 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. cumstances of the case, it will consider itself at liberty to con- sider the question anew, and to readjust the allowance proper to be made in the new state of affairs."^ Here would seem to be a special reservation of power, not within the general rule. These are some of the obvious, outside views of the matter ; yet they leave much to be considered on each several application. § 434 [594]. If the alimony has been suffered to run in arrear, at least with the tacit consent of the wife, any dis- bursements the husband has consequently been compelled to make on her account ^ will be deducted from the sum due, on her application to enforce the payment.^ And as alimony is for the maintenance of the wife from year to year,* the court will not, without sufficient cause shown for the delay, compel the payment beyond one year prior to the monition.^ This last proposition, again, can in reason apply only in particular circumstances, not in all. "> § 435 [595]. The wife, suing for divorce, even for divorce from the bond of matrimony, cannot make, previous to the decree of divorce, a valid agreement concerning alimony. For while the matrimonial relation continues, she is not legally competent to enter into any contract ; and the court will not, without examination, sanction any stipulation of hers on this subject ; because " it would have a tendency to produce collusion between the parties, with a view to the dissolution of the marriage." An agreement of this nature might indeed under some circumstances be sanctioned, when affirmatively shown to be fair and proper.^ As the divorce 1 Severn v. Severn, 7 Grant. U. C. Ch. 109. ^ j^^ta^ ^ 401. ' Ante, § 427. " De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 128. 5 De Blaquiere v. De Blaquiere, supra, and Wilson v. Wilson, cited in a note to the same case, 5 Eng. Eo. 129. And see Gresse v. Gresse, cited 1 Phillim. 210. ^ Daggett V. Daggett, 5 Paige, 509. And see Rogers v. Rogers, 4 Paige, 516 ; Kirby v Kirby, 1 Paige, 565 ; ante, § 235 - 237. And see, for some principles ap- plicable in the case. People v. Mercein, 8 Paige, 47, 68 ; Wallingsford v. Wallings- ford, 6 Har. & J. 485 ; Converse v. Converse, 9 Kich. Eq. 535. [348] CHAP. XXIV:] BOTH KINDS OF ALIMONY. § 436 from bed and board does not dissolve the marriage, there may be doubt precisely how far the wife, after obtaining such a divorce, can make a valid relinquishment of her claim to the alimony allotted her under the decree. Where a wife, in a letter to the solicitor of the husband, expressly aban- doned the alimony, but she was shown to have done this for the purpose of influencing the husband to let her son be with her, the court said : " I doubt, whether, in law, it was competent for her, in that form, to relinquish the benefit of the decree of the court. This is a contract between husband and wife ; and, though the principles applicable to such con- tracts are not strictly the same after a legal separation as they may be regarded while the parties are living together, yet they are not widely different. In the one case, here is the influence arising from affection ; afterwards an influence of a different sort, arising from an anxiety to communicate with her children. If it were necessary to settle this point, I should be of opinion, that the whole alimony decreed to her in 1830 must be placed at her disposal, and then she will be at liberty to appropriate it as she pleases." ^ Where the di- vorce is from the bond of matrimony, the wife, being thereby freed from the coverture, is competent to enter into a contract respecting the alimony which was decreed to her.^ § 436 [596]. When the wife dies, leaving arrears of ali- mony due to her, the rule of the Ecclesiastical Courts is, it seems, that, in those courts, her representatives cannot re- cover it ; while also the doctrine is settled, that such arrears cannot be recovered either in the common law or in the equity tribunals, unless for the benefit of her creditors.^ Thus, where the executors of the wife brought their bill in equity for arrears of alimony, a demurrer to the bill was sustained, Lord Lyndhurst, C, observing: "It was said, that, in analogy to the cases in which this court grants the writ of we exeat 1 De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 128, by Dr. Lushington. 2 Blake v. Blake, 7 Iowa, 46. ' Post, § 437 et seq. [349] § 437 ACCOMPANIMENTS OF MAIN ISSUE. ' [BOOK V. regno, and on principle, the bill might be sustained ; but it is impossible to look into those cases without seeing how very reluctantly the court has acted in giving relief.^ Then it was said, that the party will be without remedy, because executors cannot maintain a suit in the Ecclesiastical Court. That argument operates, I think, the other way ; for execu- tors may maintain suits in the Ecclesiastical Court, but not for arrears of alimony. It should seem, therefore, that the claim must cease with the death of the wife. That is prob- ably the principle ; but it does not follow that, therefore, this court has jurisdiction. There is no instance of such a bill as the present being filed against the husband, by the ex- ecutors of the wife ; and I should be very averse to establish a precedent. The authorities do not warrant it. The cases in which the court have granted the writ of ne exeat regno do not warrant it ; nor, from the circumstance of the Eccle- siastical Court not interfering, can I found any jurisdiction in this court." ^ § 437 [597]. So, in Pennsylvania,^ a wife brought her suit at the common law for the recovery of her alimony, pending which suit she died ; and her administrator came in to prose- cute it. The court held, that he was not entitled to recover, except for the use of her creditors, with whom she had con- tracted debts in consequence of his withholding payment in her lifetime. The opinion by Rogers, J., is replete with learning and sound sense ; and we cannot better contemplate several points relating to this subject, than as presented in his very words. He said : " A sentence of divorce a mensd et ^Aoro does not so far destroy the relation of husband and wife as to make the latter a feme sole ; such a sentence merely suspends, for a time, some of the obligations arising out of that relation. A woman divorced a mensd et thoro, and living separate and apart from her husband, cannot be sued as a 1 See Shaftoe v. Shaftoe, 7 Ves. 171; Dawson v. Dawson, 7 Ves. 173. And see 2 Story Eq. Jurisp. § 1472. 2 Stones V. Cooke, 8 Sim. 321, note. » Clark v. Clark, 6 Watts & S. 85, [350] CHAP. XXIV.] BOTH KINDS OP ALIMONY. § 438 feme sole ; unless in the known excepted cases of abjuration, exile, and the like, when the husband is considered as dead, and the woman as a widow. The same holds good where she is divorced a vinculo.^ Alimony is not considered the separate property of the wife, but it is that proportion of the husband's estate which the courts allow her, for present sub- sistence and livelihood according to law, when they decree a separation from bed and board. In Vandergucht v. De Bla- quiere,^ it was attempted to assimilate alimony to [an estate settled to] the separate use of a [married] woman ; but the court denied the similitude, for alimony is liable to be varied by the court according to the husband's circumstances. A married woman divorced from her husband and entitled to alimony under the sentence of the Ecclesiastical Court, ac- cepted a bill of exchange for articles of dress supplied to her by the drawer, and made it payable at her banker's, to whom her alimony was paid. It was held that she did not thereby charge her alimony § 438 [598] . " In case of a divorce a mensd et thoro, she ought to apply her alimony to her support, as her occasions may require'; and, if those who know her condition, instead of requiring immediate payment, give credit to her, they can- not sue her.^ As a divorce a mensd et thoro does not destroy the relation of marriage, but merely suspends some of the obligations arising out of that relation, it follows that the right, as regards succession to property, is not impaired. .... Thus, it appears, that the title to property, whether dower, curtesy, or personal estate, is affected by divorce ac- cording to the nature of the divorce ; for, if it be a dissolu- tion of the marriage, and then only, the rights consequent upon it wiU cease. But where the bond of matrimony is not 1 Marshall v. Rutton, 8 T. R. 545 ; Hyde v. Price, 3 Ves. 437 ; Lean v. Schutz, 2 W. Bl. 1195. ^ Vandergucht v. De Blaqniere, 8 Sim. 315. ' Beard v. Webb, 2 B. & P. 93 ; MarshaU v. Rutton, 8 T. R. 545 ; Murray v. Barlee, 3 Myl. & Keen, 209, 220. [351] § 439 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. dissolved, as in case of a divorce a mensd et thoro, the rights of the parties, so far as regards succession to property, re- main as before. Prom this it would result that the arrears of alimony belong to the husband ; and it would seem to be against right to compel him to pay to another that which belongs to himself. And this may have been avoided by the husband, who might upon a proper application have the let- ters of administration set aside." Yet, as the husband had neither taken out administration, nor applied to have the letters to the plaintiff vacated, he could not set up his right in this collateral way. There appearing also' to be debts which the deceased wife had left unpaid, the plaintiff was allowed to recover for the benefit of her creditors ; the court observing : " If, after payment of the debts, anything should remain, the administrator will hold it for the use of the hus- band, on the principle before stated." ^ It seems, however, that, if the husband, instead of the wife, dies, the estate which he- leaves is liable to pay the alimony due at the time of his death.2 § 439 [599]. In accordance with these principles, where the court had ordered the husband to pay his wife a sum of money weekly, during the pendency of the bill for divorce, but before its payment the bill was dismissed, it refused afterward to enforce the payment for her separate use. She was still his wife, and whatever she might have belonged to him ; and, if he should in form pay this money to her, it would continue his, and he could take possession of it. There was no authority in the tribunal to set it apart for her separate use, except as the consequence of a divorce, or as support during the pendency of a divorce suit ; but, this suit being dismissed, her duty was to return to her husband.^ 1 Clark V. Clark, 6 Watts & S. 85. And see Sterling v. Sterling, 12 Ga. 201. 2 Smith V. Smith, 1 Boot, 349 ; Sloan ». Cox, 4 Hayw. 75. See Jamison v. Jamison, 4 Md. Ch. 289, 298. As to the effect of the husband's bankruptcy, &c., see Newhouse v. Commonwealth, 5 Whart. 82 ; Texas's case, 1 Ashm. 175. s Persons v. Persons, 7 Humph. 183 ; s. P. Wright v. Wright, 6 Texas, 29. See Stafford v. Stafford, 9 Ind. 162. [352] CHAP. XXIV.J BOTH KINDS OF ALIMONY. § 441 § 440 [599]. Where, however, a wife had proceeded against her husband for alimony, by* reason of his deser- tion, and her attorney had obtained from him a sum of money in a compromise of the suit, the court held, that she, by her next friend, miglit maintain against this attor- ney her bill in equity for the money, and that the husband need not be made a party to the bill.^ We may observe, that here the husband had not only himself appropriated the money for the use of his wife, but had actually parted with it. And there is doubt, whether, in any case in which the money has passed from the husband to the wife, under a decree for alimony, temporary or permanent, he can reclaim this money of her, on the ground of being her husband. There seems to be a necessity this should be so ; because otherwise the decree would be substantially without legal effect. It has been adjudged, that, if on a divorce from bed and board the wife is allowed as part alimony the rents of some lands, out of which "she makes aii annual saving, — the husband, when she dies, cannot have the fund accumulated from this saving. This decision appears to have proceeded substantially on general principles ; although the court made some reference to the language of the statute, which ex- pressly gave to the injured wife, obtaining a divorce, " capa- city to acquire and dispose of such property as she might procure by her own industry, or as might accrue by descent, devise, or in any other manner."^ § 441 [600]. We should bear in mind, that the foregoing doctrines concern specifically alimony as understood in the ecclesiastical law ; while they may not, in all respects, be applicable to statutory alimony, decreed to the wife on a di- vorce from the bond of matrimony. Whether there is scope for this distinction remains, however, to be decided. So there are, in some of the United States, allowances to the wife on a divorce a vinculo, under tlie name of alimony, differing es- sentially from the alimony now being considered ; as in New 1 Spencer v. Ford, 1 Rob. Va. 648. ^ Darden v. Joyner, 9 Ire. 339. VOL. II. 23 [ 353 ] § 442 ACCOMPAKIMENTS OF MAIN ISSUE. [BOOK V. Hampshire ^ and Connecticut,^ where this word alimony is used to designate a portion of the husband's estate, real or personal, vested by judicial sentence in the wife, on the judi- cial dissolution of the marriage. So the statutory law of Ohio provides, that when a divorce from the bond of matri- mony is decreed against the husband, the wife shall be re- stored to all her lands and tenements, and be allowed out of his real and personal estate such share as the court may think reasonable. Under this statute it is held, that the court in its discretion may decree, either a periodical support, or a gross sum, " as alimony," to the wife.^ § 442 [601]. Also in respect to divorces from bed and board, consequences may flow from the peculiar language of the statute, or of the decree. The statute in New York pro- vides, that, upon a judicial separation, the court may make such order and decree for the suitable support and mainten- ance of the wife, by the husband, or out of his property, as may appear just and proper. And in a much considered case, Chancellor Walworth doubted, whether the court could award a gross sum to the wife, instead of a periodical allow- ance. But he held, that the Court of Errors on appeal con- firmed his decision, that 1;he decree might direct the alimony to be her separate estate, and authorize her to dispose of such part of it as shall remain at her decease, if the husband survive her, by an instrument in the nature of a will. In the Court of Errors, Nelson, C. J., observed : " The object of this direction was to take from the complainant any temptation to withhold the payment of the alimony at the time desig- nated. Unless this power was given, any unpaid balance at her decease should of course go to the husband ; and, as she is aged and infirm, his past conduct may well justify the ap- prehension, that he would not hesitate to try the experiment of fighting off the quarterly payments, with the hope that in the mean time death might intervene and relieve him from 1 Parsons v. Parsons, 9 N. H. 309 ; Sheafe v. Sheafe, 4 Fost. N. H. 564. 2 tyon V. Lyon, 21 Conn. 185, 197. ' ^ pjatt v. Piatt, 9 Ohio, 37. [354] CHAP. XXIV.] BOTH KINDS OF ALIMONY. § 444 the burden imposed by the decree. The right to give this direction in respect to the fund is not to be doubted. The same power that can vest her with the absolute separate in- terest in a portion of the husband's estate, can enable her to ..dispose of it as she may think proper. Indeed, the right to make the disposition is incident to, and arises out of, the absolute ownership in the separate estate which the statute has authorized the court to confer on her, although it is usual to accompany the allowance with an express power. The wife has always been allowed in equity to dispose of her separate estate by an instrument in writing in the nature of a will, and a court of equity will see that her directions are carried into execution." It was also held in this case, that alimony under the statute may be made, by the decree, to continue after the death of the husband, during the entire life of the wife.^ §443 [602]. Said the learned court in an Indiana case; " The present Kevised Statutes authorize the courts, when a divorce is granted for the misconduct of the husband, and when the estate brought by the wife and restored to her on ' the divorce is not sufficient for her support, to grant such alimony out of his estate as shall be just and reasonable. There is no provision authorizing a grant of alimony in lieu of dower ; but it is provided, that the court shall not have power to divest either party of their title to, or interest in, any real estate, further than is expressly provided for." Ac- cordingly it was held, that the wife could not be divested of her dower by a decree of alimony, stated in the decree to be instead of dower .^ * ^ § 444 [602 a] . Concerning the several points discussed in the present chapter, one or two observations are important. In the first place, alimony under the ecclesiastical law, and 1 Burr V. Burr, 10 Paige, 20, in the Chancellor's and the Vice-Chancellor's Courts ; 7 Hill, N. Y. 207, in the Court of Errors. 2 Russell V. Russell, Smith, Ind. 356, 1 Ind. 510. [355] § 444 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. alimony under the statutes of our several States, may not be governed by the same principles, even where the statutes do not expressly order otherwise. Because, in most of our States, the divorce from bed and board on which the decree of alimony is rendered, places the wife more nearly in the condition of a feme sole than she occupies under the decree of an Ecclesiastical Court. And when the divorce is from the bond of matrimony, still more, of course, does her condition differ from that of a divorced woman alimented by ecclesias- tical decree. In the next place, whatever be the form of the statute, the alimony, being granted by a court of law or of equity, partakes possibly of a somewhat different quality, in consequence of the fuller and wider powers of the court order- ing it, and enforcing the order, from those possessed by the ecclesiastical tribunals. But these suggestions are only made as matters for consideration in a general way ; it being im- possible for any a priori reasoning to anticipate what may arise for argument hereafter. [356] CHAPTER XXV. THE husband's FACULTIES WHENCE THE ALIMONY PROCEEDS. § 445 [603]. Before discussing the amount to be fixed by the courts for alimony, temporary or permanent, some- thing should be said of the ability of the husband whence it is to proceed. But first let it be observed, that the amount of ali- mony is not to be regulated by absolute and fixed rule ; it is rather matter of discretion with the court. Yet this discre- tion is not an arbitrary one, but a judicial discretion, to be exercised according to established principles of law, and upon an equitable view of all the circumstances of the particular case.^ The general rule, especially in respect to permanent alimony, is, that the wife is entitled to a support correspond- ing to her rank and condition in life, and the fortune of her husband. " When the delinquency of the husband has been established, and the wife is the injured party, driven by his cruelty," or other wrongful conduct, " from the comfort of domestic enjoyments, she should be liberally supported." ^ § 446 [604]. We have seen, that alimony is commonly defined to be a " proportion of the husband's estate." ^ But 1 Eees B. Eees, 3 Phillim. 378, 1 Eng. Ec. 418 ; Rickettsw. Ricketts, 4 Gill, 105 ; Bnrr v. Burr, 7 Hill, N. T. 207 ; Richmond v. Richmond, 1 Green Ch. 90 ; Smith V. Smith, 2 Phillim. 235 ; 1 Eng. Ec. 244 ; Lawrence v. Lawrence, 3 Paige, 267 ; Cooke ». Cooke, 2 Phillim. 40, 1 Eng. Ec. 178 ; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203 ; Hammond v. Hammond, Clarke, 151 ; McGee v. McGee, 10 Ga. 477, 490 ; Bergen v. Bergen, 22 HI. 187 ; Pinckard v. Pinckard, 22 Ga. 31 ; Breinig v. Breinig, 2 Casey, 161 ; Foote v. Eoote, 22 HI. 425 ; ante, § 406. 2 Nelson, C. J., in Burr v. Burr, supra ; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203. • ^ Ante, § 351 and note. [357] § 446 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. the duty of a husband to maintain his wife does not depend alone on his having visible, tangible property. While the parties are living together, they are bound to contribute by their several personal exertions to a common fund, which in law is the husband's ; and from which the wife may claim support.^ If she is compelled to seek a divorce on account' of his misconduct, she loses none of her rights in this respect, only she is to draw her maintenance in a different way ; that is, under a decree for alimony, based, if he has no' property, upon his earnings, or ability to earn money .^ The extent to which the vrife of a poor man can have from her divorced husband separate aid, must depend, as it would if he were in affluence, much upon the same circumstances which would determine her condition were they living together, in the proper discharge of their several marital duties.^ " If," says Johnston, C. J., " the parties are laboring people, the wife needs less. If she is in bad health, however, the amount should be increased. If the labor of the husband is of a comparatively unprofitable character, or if he is sickly, allow- ance should be made for these circumstances. If, on the other hand, he is in good health, and skilful, and is actually realizing considerable profits, the partner of his fortunes should not be refused a reasonable participation in them. Every case must be governed by its circumstances." * When the income arises from the personal exertions of the husband, 1 Vol. I. § 355, 818, 821 ; ante, § 369. And see Goodheim v. Goodheim, 2 Swab. & T. 250, 252, where the learned Judge Ordinary held, that, in awarding temporary alimony, the wife's income from her own earnings should be taken into the account. " That the wife might earn an income," he said, " would not be sufficient to relievo the husband ; but here it is said, that she does earn." " Prince v. Prince, 1 Rich. Eq. 282 ; Kirby ». Kirby, 1 Paige, 261, 262 ; Mo- Crocklin v. McCrocklin, 2 B. Monr. 370 ; Cooke v. Cooke, 2 Phillim, 40, 1 Eng. Ec. 178 ; Lawrence v. Lawrence, 3 Paige, 267 ; Bursler v. Bursler, 5 Pick. 427 ; Bat- tey V. Battey, 1 R. I. 212. But see Tewksbury v. Tewksbury, 4 How. Missis. 109 ; Freigley v. Fr§igley, 7 Md. 537 ; Sheafe v. Sheafe,36 N. H. 155. And see Schmidt ». Schmidt, 26 Misso. 235. ' Bursler v. Bursler, supra ; Smith v. Smith, 2 Phillim. 235, 1 Eng. Ec. 244 ; Brown ». Brown, 2 Hag. Ec. 5, 4 Eng. Ec. 11. * Prince v. Prince, supra. [358] CHAP. XXV.] FACULTIES WHENCE ALIMONY PROCEEDS. § 448 according to some cases, the proportion of alimony is less than when it is derived from permanent property.^ § 447 [605]. Obviously, then, as a general proposition, the fund out of which the wife is entitled to her alimony is the income^ of the husband,^ from whatever source derived or derivable. The method of procedure, for ascertaining the amount of it, is, in England,* and frequently in this country,^ for the wife to file what is termed an allegation of faculties ; to which the husband answers on oath, leaving her either to rely upon his answer alone,® or to produce other proofs, as she may be satisfied or not with the disclosures made by him.'' But the procedure is to be separately con- sidered in another chapter. § 448 [606]. "The general principle regulating such alle- gations," observes Dr. Lushington, " is this : the wife is at liberty to plead the income of the husband, and the sources from which it is derived. With regard to his reversionary property, — and by the word reversionary I mean such prop- erty as the husband is entitled to for a vested interest ex- pectant on the death of some person, or the happening .of 1 Cooke T. Cooke, supra; Stone v. Stone, 3 Cnrt. Ec. 341, 7 Eng. Ec. 437 ; Hawkes v. Hawkes, 1 Hag. Be. 526, 3 Eng. Ec. 230 ; Poynter Mar. & Div. 250 ; post, § 448. But see, for the explanation of this, post, § 467. ^ There is a Missouri case, in which a somewhat different doctrine seems to be held ; but the language therein used is exceptional to the general rule : " In the allowance of alimony, the court is not restrained to the income of the hnsband." There is nothing in the law which restricts the allowance of alimony to a portion of the hustand's income. Such a principle, in many instances, would deprive the wife of alimony." Scott, J., in Schmidt v. Schmidt, 26 Misso. 235, 236. " Post, § 449, for the authorities. ■ * CooteEc. Pract. 339, 341. 6 Lovett V. Lovett, 11 Ala. 763 ; Wright v. Wright, 3 Texas, 168. ° The husband's admissions, in his answer to the wife's allegation of faculties,, are to.be taken strongly against him. Bobinson v. Robinson, 2 Lee, 593, 6 Eng. Ec. 255 ; and the court will presume, that he has made every possible deduction in his own favor. Rees v. Rees, 3 Phillim. 387, 391, 1 Eng. Ec. 418, 419. ' Brisco V. Brisco, 2 Hag. Con. 199 ; Higgs v. Higgs, 3 Hag. Be. 472, 5 Eng. Ec. 186 ; Durant v. Dnrant, 1 Hag. Ec. 528, 3 Eng. Ec. 231 ; Westmeath v. West- ^leath, 3 Enapp, 42. [ 359 ] § 449 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. some other contingency,^ — it is both usual and proper that such property should be stated. I think, that, with regard to permanent alimony, the court would make a different allot- ment in a case where the income of the husband was derived from his sole personal labor or exertions,^ from what it would do when he had moreover a large reversionary property in expectancy." ^ But as the parents of the respective parties are under no legal obligation to maintain them ; it is not proper for the wife to state, in her allegation of faculties, the amount of property possessed by the husband's father; neither is it for the husband, in answering her allegation, to mention the amount of her father's ; * though " a case may possibly arise in which, under very peculiar circumstances, thb court would allow the property of the husband's father to be stated."^ The husband, in estimating his income, is not entitled to make any deduction on account of a policy of insurance on his life, for which he pays an annual premium ; since the policy is capable, at any time, of being converted into money.® § 449 [607] . In considering the income or value of the husband's estate in reference to alimony, a difi&culty is liable to arise, where, in consequence of peculiarly good or ill management, it permanently yields more or less than a fair average for property generally ; or where the husband's means are vested in a way to bring no direct return, as in building lots adjacent to a growing city, from which he ex- pects to derive an ultimate profit in the increase of their marketable value. In respect to the first branch of this diffi- 1 The case of Bankston v. Bankston, 27 Missis. 692, seems to contain a sort of intimation, but no decision, that property acquired by the husband after the divorce from bed and board cannot be taken into the account ; but clearly, on principle, it should be, in this divorce, but perhaps not in the divorce from the bond of matri- mony. 2 Ante, § 446. s gtone v. Stone, 3 Curt. Ec. 341, 7 Eng. Ec. 437. * Harris v. Harris, 1 Hag. Ec. 3.51, 3 Eng. Ec. 153; Bruere v. Bruere, 1 Curt. Ec. 566, 6 Eng. Ec. 391. ■'' Dr. Lushington, in Stone v. Stone, supra. ^ Harris v. Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153. See also Frankfort v. Frankfort, 4 Notes Cas. 282 ; Pemberton v. Pemberton, 2 Notes Cas. 17. [360] CHAP. XXV.] FACULTIES WHENCE ALIMONY PROCEEDS. § 450 culty, it would seem, upon principle, that the wife, in entering matrimony, contracts with her husband as much in reference to his capacity for managing an estate, as to the estate it- self.^ Therefore the actual income would furnish substan- tially the standard. And this does appear on authority to be, as the general rule, the precise fact to be regarded.^ But where, in the next branch of the difficulty, the husband chooses to take his income in the increased value of the property in which he invests his money, there would seem to be no reason why such increased value should not be con- sidered his income, for the purpose of alimony ; as other- wise he 'would be able to tie up his funds, and evade her claim altogether.^ § 450 [608]. When the husband would claim anything on the score of his bad management, especially his bad management since the delictum occurred on account of which the divorce is had, he must show very clearly, that* at least, he acted in good faith. And if he has encumbered his estate by his own extravagance and profligacy, the court will not allow the full deduction of such encumbrance.* Especially an assignment, partly fraudulent and colorable, of all his property, made by him subsequently to the commencement of the suit, cannot in any degree impair the rights of the wife ; for, " if such a contrivance could avail, no injured wife could ever hope for justice." ^ So if the husband, after the delictum, particularly after the commencement of the divorce suit, grants an annuity out of his estate, " this is not a deduction he is entitled to make. The utmost the court 1 See Vol. I. § 814, 818, 821 ; ante, § 446. 2 Brisco V. Brisco, 2 Hag. Con. 199, 201 ; Higgs v. Higgs, 3 Hag. Ec. 472, 5 Eng. Ec. 186 ; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178 ; Miller v. Miller, 6 Johns. Ch. 91 ; Frankfort v. Frankfort, 4 Notes Cas. 282; Foulkes v. Foulkes, PoynterMar. & Div. 256, note; Stone v. Stone, 9 Jur. 381. 8 Harris v. Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153; ante, § 430. * Mytton V. Mytton, 3 Hag. Ec. 657, 5 Eng. Ec. 249 ; Kirkwall v. Kirkwall, Poynter Mar. & Div. 255, note. And see Neil v. Neil, 4 Hag. Ec. 273. 5 Brown v. Brown, 2 Hag. Ec. 5, 4 Eng. Ec. 11. See Frakes v. Brown, 2 Blackf. 295 ; Dunnook v. Bannock, 3 Md. Ch. 140. [361 J § 451 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. could allow would be the interest of the debt ; and even then the husband should satisfy the court, that the debt was contracted before the injury done." ^ § 451 [609] . On an application by the husband for a re- duction of alimony, Dr. Lushington observed : " The prin- cipal point is, what is to be done in respect to Hill House Farm. There is an extraordinary affidavit from General De Blaquiere's housekeeper, whose husband manages the farm while she keeps the accounts, ' that during the last fifteen years no profit has been derived from it ' ; but the point to be considered is, what the farm would let for. In 1820, it was estimated at £ 7,000 ; Lord Stowell put the produce of it at a low rate, and I see no reason to depart from the view he then took of it." ^ But the husband resided on this farm ; and the mansion-house and demesne are always to be charged the same as though they were to be let ; ^ besides, the ques- tion arose here upon an application for the reduction of ali- mony, and the falling off was subsequent to both the delictum and divorce.* 1 Rees V. Rees, 3 Phillim. 387, I Eng. Eo. 418, by Sir John Nicholl. In Ten- nessee the court has held, concerning a division of the property on divorce under the statute, not only that the husband cannot resist a decree giving part to the wife by reason of his having creditors who may be affected by it, but also, that, in ascertaining the amount of property to be allotted to the wife, the court will not take an account of his debts ; neither, on the other hand, will it entirely dis- regard the interests of creditors. Chann v. Chunn, Meigs, 131. This conclusion seems to have resulted from the view the court took of the principles which should govern such a division. But in respect to alimony, as understood in the ecclesias- tical law, I apprehend the general doctrine to be, both in principle and in the practice of the ecclesiastical tribunals, to take into consideration the debts of the husband ; certainly encumbrances on real estate are uniformly considered. If the inquiry is to how much the husband is worth, his debts must be deducted from his visible means ; if (which is the true inquiry) as to his income, still the sum he pays as interest, or to keep down his debts, must be deducted. But when, in cases of insolvency, the question is upon the settlement of the wife's own property, such as choses in action, upon her, the rule is very properly different. Vaughan v. Buck, 3 Eng. L. & Eq. 135 ; Davis v. Newton, 6 Met. 537, 544. 2 De Blaquiere v. De Blaquiere, 3 Hag. Ec.322, 5 Eng. Ec. 126, 129. s Brisco V. Brisco, 2 Hag. Con. 199 ; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. * In Neil v. Neil, 4 Hag. Be. 273, 274, on an application for the reduction of [ 362 ] . CHAP. XXV.J FACULTIES WHENCE ALIMONY PROCEEDS. § 453 § 452 [610]. Where, according to an English case, the husband is doing business as partner in a firm, the wife will not be permitted to plead, in her allegation of faculties, the particulars of the partnership business ; such as the number of hands employed, the amount of the annual returns, the capital embarked by the firm, the stock in trade, and the debts due ; she is simply to state her husband's income, or the income of the firm with the proportion to which he is en- titled. This out of forbearance to the other partners ; and because, if the husband does not fairly disclose, they may be examined as witnesses. And Sir John Nicholl observes, that " the only material circumstance is the amount of income." ^ § 453. In cases where there is no question of fraud or of bad faith, the husband's creditors, who were bond fide such previous to the institution of the suit for divorce, may have their claims allowed, to take preference to those of the wife for alimony. So, at least, it was held in a Tennessee case ; ^ and, on general principles, the husband's indebtedness should be taken into the account, in estimating his ability to respond to the wife's demands. This is the universal practice ; aud- it grows out of the rule, that the income is the source of the alimony. alimony, Dr. Lushington said : "How has the reduction of income on the part Of the husband been occasioned ? It is manifest that he was, at one time, in posses- sion of a large capital ; and, if he has thought fit to enter into large speculations, purchasing Mexican bonds, and shares nearly to the amount of 7,000Z., it becomes a matter of grave consideration, whether, because those investments happen for the present to be unprofitable, the wife — who is now increasing In years, and who, it must be remembered, is quite incompetent to contradict the statements of the hus- band as to his property — should suflFer a reduction of alimony If he chooses to speculate, he mnst, if unsuccessful, bear the inconvenience." And see ante, § 450. 1 Higgs V. Higgs, 3 Hag. Ec. 472, 5 Eng. Ec. 186. And see Brisco v. Brisco, 2 Hag. Con. 199. 2 McGhee v. McGhee, 2 Sueed, 221. [363] CHAPTER XXVI. THE AMOUNT TO BE DECREED AS ALIMONY. Sect. 454. Introduction. 455 - 458. Considerations which blend with the Facnlties. 459-461. The Amount in Temporary Alimony. 462 - 467. The Amount in Permanent Alimony. 468 -470. Views applicable to both kinds of Alimony. § 454. The following matters will be embraced, in the present chapter : I. Considerations which blend with the Faculties in determining the Amount ; II. The Amount in Temporary Alimony ; III. The Amount in Permanent Ali- mony ; IV. Views applicable to both kinds of Alimony. I. Considerations which blend with the Faculties in determin- ing the Amount. § 455 [611]. In determining the amount to be given the wife for alimony, the court takes primarily into its considera- tion the husband's faculties, as explained in our last chapter. But they are not all the things to be considered in making up the decree. Another very important thing is the income of the wife, as already mentioned,^ arising from her separate estate, if such estate she has. And the method of computa- tion is, to add the wife's annual income to her husband's ; consider what, under all the circumstances, should be allowed her out of the aggregate ; then, from the sum so determined, 1 Ante, § 375, 394, 446 and note. [364] CHAP. XXVI.J AMOUNT DECREED AS ALIMONY. § 457 deduct her separate income ; and the remainder will be the annual allowance to be given her.^ § 456 [611 a]. The statement of the case, made in the last section, proceeds on the idea of an income derived from fixed property. But the income of most persons, in this country especially, is drawn from their exertions. In England, di- vorce suits have been generally between persons of wealth, living on the receipts which come from established fortunes ; because, in England formerly, justice as administered by the tribunals was practically only for the rich ; it was too costly to be bought by the poor. In this country, we have few for- tunes resting on other foundations than the intellectual and physical capabilities of those who support them. Perhaps these considerations should not materially change with us the legal result in most cases, yet in particular instances they may have their influence, and while travelling through this subject we should carry them in our minds. § 457 [612]. Looking still at this question as seen in the language of th'e courts, we find, that, besides the joint in- come of the parties, the judge is to take into consideration the sources from which the husband's income is derived ; as, whether it is from his personal labor, in which case, we have already observed, the proportion will be less ; ^ whether the bulk of the property came from the wife, in which case, where, as under the English" ecclesiastical practice, the court has no power to restore to her what she brought to her husband, the proportion will be greater ; or whether it was originally his ; ^ or was accumulated by the joint exertions of 1 Cooke V. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178 ; Street v. Street, 2 Add. Eo. 1, 2 Eng. Ec. 195 ; and other cases cited ante, § 445. ^ Ante, § 446 ; Lawrence ». Lawrence, 3 Paige, 267. 8 Smith V. Smith, 2 Phillim. 152, 235, 1 Eng. Ec. 220, 244 ; Harris v. Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153; Street o. Street, 2 Add. Ec. 1, 2 Eng. Ec. 195 J Fishli V. Fishli, 2 Litt. 337 ; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178 ; Kempe v. Kempe, 1 Hag. Ec. 532, 3 Eng. Ec. 233 ; Payne o. Payne, 4 Humph. 500; Chunn u. Chunn, Meigs, 131; Wright v. Wright, 1 Edw. Ch. 62; Foulkes [365] § 457 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. both, subsequently to the marriage ; ^ whether there are chil- dren or other relatives to be supported or educated, and on whom the burden of their support and education devolves ; ^ the nature and extent of the husband's delictum ; ^ the de- meanor and conduct of the wife toward the husband during the cohabitation ; * the ability of each party to earn money ; ^ the fact, if it be so, that out of tenderness the wife has long delayed instituting her suit, and has thus deprived herself of that support from her husband to which she was entitled, in consideration of which a larger proportion will be allotted ; ® V. Foulkes, Poynter Mar. & Div. 256, note ; Devaismes v. Devaismes, 3 Code Re- porter, 124, 3 Am. Law Jour. N. s. 279. 1 Lovett V. Lovett, 11 Ala. 763 ; Jeans v. Jeans, 2 Harring. D^el. 142. ^ Lawrence v. Lawrence, 3 Paige, 267 ; Germond v. Germond, 4 Paige, 643 ; Blaquiere v. Blaquiere, 3 Phillim. 258 ; Hawkes v. Hawkes, 1 Hag. Ec. 526, 3 Eng. Ec. 230; De Blaquiere u. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 129 ; Amos v. Amos, 3 Green Oh. 171 ; Kirby v. Kirby, 1 Paige, 261 ■ Fishli v. Fishli, 2 Litt. 337; Harris ». Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153; Smitli v. Smith, 2 Phillim. 152, 1 Eng. Ec. 220; Kempe v. Kempe, 1 Hag. Ec. 532, 3 Eng. Ec. 233 ; Butler v. Butler, Milward, 629 ; Rees v. Rees, 2 Phillim. 387, 1 Eng. Ec. 418 ; Irwin ». Dowling, Milward, 629 ; Miller ». Miller, 6 Johns. Ch. 91 ; Barrere ». Barrere, 4 Johns. Ch. 187; Bedell v. Bedell, 1 Johns. Ch. 604; Williams v, Williams, 4 Des. 183 ; Durant v. Durant, 1 Hag. Ec. 528, 3 Eng. Ec. 231 ; Whis- pell V. Whispell, 4 Barb. 217 ; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203; Bird w. Bird, 1 Lee, 418, 5 Eng. Ec. 396; Lovett u. Lovett, 11 Ala. 763; Ham- mond V. Hammond, Clarke, 151 ; McGee v. McGee, 10 Ga. 477, 490. 3 Mytton V. Mytton, 3 Hag. Ec. 657, 5 Eng. Ec. 249; Burr v. Burr, 7 Hill N. y. 207 ; Smith v. Smith, 2 Phillim. 235, 1 Eng. Ec. 244 ; Turrel v. Turrel, 2 Johns. Ch. 391; Rees v. Rees, 2 Phillipn. 387, 1 Eng. Ec. 418; Williams r. Williams, 4 Des. 183; Durant v. Durant, 1 Hag. Ec. 528, 3 Eng. Ec. 231; Ot- way V. Otway, 2 Phillim. 109, 1 Eng. Ec. 203 ; Hammond v. Hammond, supra. In New Hampshire it has begn even held, that, on the application for alimony after divorce granted, evidence may. be introduced tending to refute the charge in the , libel. Sheafe v. Sheafe, 4 Post. N. H. 564. As to which point, see 1 Bishop Crim. Law, § 633 ; post, 515. * Burr V. Burr, 7 Hill, N. Y. 207 ; Dejarnet v. Dejarnet, 5 Dana, 499 ; Peckford V. Peckford, 1 Paige, 274; Smith v. Smith, 2 Phillim. 235, 1 Eng. Ec. 244 ; Thorn- berry ». Thomberry, 4 Litt. 251 ; Hammond v. Hammond, supra; Stewartson v. Stewartson, 15 111. 145 ; Severn v. Severn, 7 Grant, U. C. Ch. 109. ^ Hammond f. Hammond, supra. ^ Burr V. Burr, supra. In the Court of Errors, Nelson, C. J., in this case, ob- served : " I agree with the Chancellor, and the decisions of the Ecclesiatical Courts fully warrant the remark, that, if a few years of aifluence can, to any extent, com - pensate her for the more than thirty years' unparalleled suiferings and misery which [366] CHAP. XXVI.] AMOUNT DECREED AS ALIMONY. § 457 the condition in life, place of residence, health, and employ- ment of the husband, as demanding a larger or smaller sum for his own support ; ^ the condition in life, circumstances, health, place of residence, and consequent necessary expendi- tures of the wife ; ^ the age of the parties ; ^ and whatever other circumstances may address themselves to a sound judi- cial discretion.* And there are cases in which the allowance to the wife will be suffered to go beyond the income, and trench upon the principal.^ Another consideration has also entered into the decision of this question, expressed in the, words of Dr. Lushington as follows : " In decreeing alimony in 1813, I have some recollection that Lord Stowell, upon being pressed to give a larger sum, observed, that, if he could think that the wife would be able to obtain it, he would make a more ample allowance, but that the allotment of 200Z. a year he considered would be more beneficial to her ; and the difficulties she is stated to have experienced in re- spect to her alimony seem to bear testimony to the propriety of that decree.^ she has endured, either by the gratification of her feelings in the remuneration of those who have sheltered and nourished her in adversity, or in procuring her those indulgences and comforts which her age and health may require, it will not be an improper exercise of the discretion of the court — the ample means of the husband justifying it — to make the most liberal allowance." 1 Hawkes v. Hawkes, 1 Hag. Ec. .'526, 3 Eng. Ec. 230 ; Kempe v. Kempe, 1 Hag. Ec. 532, 3 Eng. Ec. 233. ^ Einlay v. Einlay, Milward, 575 ; Butler v. Butler, Milward, 629 ; Bursler v. Bursler, 5 Pick. 427 ; Prince v. Prince, 1 Eich. Eq. 282 ; Germond v. Germond, 4 Paige, 643. In Lynde v. Lynde, 4 Sandf. Ch. 373, 2 Barb. Oh. 72, it was held, pending suit, that, if the health of the wife is such as absolutely to require her to travel and spend some time in a milder climate, the court has power to allow her a gross sum for the purpose. And the court, in this case, did allow her four hun- dred dollars to enable her to go and spend four months in the West Indies or the Southern States, her regular ad interim alimony to be suspended in tlie mean while. 8 Miller v. Miller, 6 Johns. Ch. 91 ; Burr v. Burr, 7 Hill, N. Y. 207 ; Ricketts V. Eicketts, 4 Gill, 105 ; Lovett v. Lovett, 11 Ala. 763. * And see Eussell v. Eussell, 4 Greene, Iowa, 26. ^ Bursler v. Bursler, 5 Pick. 427 ; Germond v. Germond, 4 Paige, 643. And see Lynde v. Lynde, 2 Barb. Ch. 72. 6 Neil V. Neil, 4 Hag. Ec. 273, 274. [367] § 459 ■ ACCOMPANIMENTS OF MAIN ISSUE. [BOOK Y. § 458 [612 a]. The general summary contained in the last section presents a view of the case substantially just in prin- ciple ; but the point of the sources of the income requires a further examination. It has already been said in these pages,^ that, in marriage, the parties give themselves to each other, including of course each other's property, but also in- cluding each other's persons, and physical and mental capa- bilities. If a wife has capacity to carry on business, and to earn a livelihood, the husband has his rights concerning this capacity; if the husband has -it, the wife hasher correspond- ing rights. And when alimony is to be decreed, whether between parties possessed of visible fortune or not, the re- spective capacities, as thus explained, should enter largely] into the calculation. There are undoubtedly instances in which the wife's duty is to support wholly her husband by her own mental and physical exertions. And though, if he were de- linquent in the duties of the marriage, on account of which she obtained a divorce from him, he would then have lost by his own fault his claim upon her, yet she would have no claim on him for alimony. II. The Amount in Temporary Alimony. § 459 [613]. "When the court awards temporary alimony, it takes into the account some considerations not presenting themselves- in connection with permanent alimony. One of these is, that the husband has to maintain the expenses of the suit on both sides."^ It is also to be considered, that the wife has not established her cause. If she is plaintiff, she may fail in her suit ; ^ if defendant, the bringing of the accu- 1 Vol. I. § 820. 2 Brisco ». Brisco, 2 Hag. Con. 199, 201 ; Harris v. Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153. ' " This suit is brought by the wife for cruelty and adultery. She now applies for alimony pending the suit ; and certainly the court will not allow the same as if such a charge was established ; yet I think the nature of the suit is to be consid- ered ; the charge is made ; the answers are given in ; — as yet there is no allega- tion on the part of the husband ; there is no ground to consider the suit as vexatious [368] CHAP. XXVI.] AMOUNT DECREED AS ALIMONY. § 460 sation against her casts over her a shadow which should cause her to live in comparative seclusion and consequent economy until it is removed.^ " Though," observes Sir John NichoU, " the court cannot assume her guilty of the offence till it. has been proved, still that is a sort of charge which ought to make her content to live in decent retirement. On that account, a comparatively small allotment is given dur- ing the pendency of the suit." And the peculiar nature and complexion of the case are always to be taken into the ac- count.^ Thus, where the wife sued for divorce, and the husband denied the charge under oath, this, though no an- swer to her claim for alimony, was still held to be proper matter to influence the court in fixing the sum.^ So, when the wife is complainant, she is generally understood to have a better claim than when she is the party accused.* And temporary alimony will be less than permanent.^ § 460 [614]. The ordinary rule of temporary alimony is to allow the wife about one fifth of the joint income, deducting, of course, the income from the wife's separate, estate, in the way already explained.^ This is regarded as a fair medium, though the proportion will vary, as we have seen,*^ according to circumstances.* When the necessities and claims of the wife have been large, one fourth has been allotted ; ' and Sir — no proceedings appear to have been had for the purpose of unnecessary delay. Therefore the wife has a right to be maintained with some reference to her former comfortable state — yet with moderation." Sir John NichoU, in Smith ». Smith, 2 Phillim. 152, 1 Eng. Ec. 20. 1 Hawkes v. Hawkes, 1 Hag. Ec. 526, 3 Eng. Ec. 230. ^ Rees r. Eees, 2 Phillim. 387, 1 Eng. Ec. 418 ; Morrill v. Morrill, 2 Barb. 480. 3 Story V. Story, Walk. Mich. 421. * Amos V. Amos, 3 Green Ch. 171 ; Shelford Mar. & Div. 590. " Kempe v. Eempe, 1 Hag. Ec. 533, 3 Eng. Ec. 233 ; Otway v. Otway, 2 Phil- lim. 109, 1 Eng. Ec. 203 ; Cooke v. Cooke, 2 Phillinj. 40, 1 Eng. Ec. 178; McGee V. McGee, 10 Ga. 477, 490. 6 Ante, h 455. ' Ante, 4 445 - 457. 8 Hawkes v. Hawkes, 1 Hag. Ec. 526, 3 Eng. Ec. 230 ; Brisco v. Brisco, 2 Hag. Con. 199, 201 ; Kees «. Eees, 3 Phillim. 387, 1 Eng. Ec. 418 ; Hayward v. Hay- ward, 1 Swab. & T. 85. * Finlay v. Finlay, Milward, 575 ; Irwin v. Bowling, Milward, 629. VOL. II. 24 [ 369 ] § 461 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. John NichoU, in one case, where the husband had under- taken to put his property out of his hands, granted the wife 50^. per year out of an income of 140/., and refused to direct the monition not to issue until after fifteen days ; observing ; " Mrs. B. is entitled to be alimented as if living with him as his wife, and the wife of such a person could not maintain herself decently for less than fifty pounds per annum." ^ So where a large proportion of the estate came from the wife, who was proceeding against her husband, and the general complexion of the case appeared quite favorable to her, she was allowed 200Z. in addition to her own private income of 300/., making 600/., while the income of the husband was 1,500/. — between one third and one fourth of the joint in- come.^ On the other hand, in different and peculiar circunor stances, the wife has been obliged to accept as small a proportion as one eighth.^ Perhaps a less proportion will be allowed out of a very large estate than a small one ; for, though no such rule exists in respect to permanent alimony,* " there may be good reasons for giving less where the ques- tion is on alimony during the suit ; when the wife is to live in seclusion, and wants a mere subsistence." ° § 461 [615]. In New York, a wife proceeding against her husband, is, according to some judicial opinions found in the reports, allowed, as a general rule, no more than will meet her actual wants. The object of this rule is to discourage vexatious suits, and other like abuses, and to prevent indis- creet friends from fomenting family quarrels.^ The rule is 1 Brown v. Brown, 2 Hag. Ec. 5, 4 Eng. Ee. 1 1 . Where the income was 250Z., and the husband had two children to maintain and educate, the wife was allowed 75Z. " She must have the means of furnishing herself with decent subsistence.'' Harris v. Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153. 2 Smith V. Smith, 2 Phillim. 152, 1 Eng. Ec. 220. 2 Butler V. Butler, Milward, 629. Here she was allowed 50/. out of an income of 400Z. * Post, § 462 and note. 5 Sir John NichoU, in Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. ^ Germond v. Germond, 4 Paige, 643 ; Lawrence ». Lawrence, 3 Paige, 267. A similar reasoning is also adopted in Poynter Mar. & Div. 250. But in New York, [370] CHAP. XXVI.J AMOUNT DECREED AS ALIMONY. § 462 certainly equitable ; it is adapted also to promote the ends of justice, when taken in connection with another rule, which sometimes, at least, guides the proceedings in New York ; namely, to let the permanent alimony when awarded com- mence from the date of the suit, deducting from it the tempo- rary allowance already paid by the husband.^ III. The Amovmt in Permanent Alimony. § 462 [616]. In permanent alimony, the rule does not prevail, that a less proportion shall be given to the wife out of a large income than a small.^ Indeed, Sir John Nicholl suggested, though he did not consider himself authorized to carry the suggestion practically to its full length, that, when the property is large, the considerations are reversed, and the proportion should be greater. " It is the delinquent then who should have the mere subsistence, and who ought to live in retirement." ^ But whether the income is large or small, the where a husband was worth $ 200,000, the court ordered him to pay the wife, who was plaintiff in the suit, one hundred dollars per month for temporary alimony, be- sides paying a gross sum of $ 250 toward carrying on her suit. Denton v. Denton, 1 Johns. Ch. 364. In Forrest v. Forrest, 5 Bosw. 672, the wife's temporary ali- mony was raised from $ 200 to $ 250 per month. And see Mix v. Mix, 1 Johns. Ch. 108; Collins v. Collins, 2 Paige, 9 ; Wright v. Wright, 1 Edw. Ch. 62 ; Wor- den V. Worden, 3 Edw. Ch. 387; Kirby v. Kirby, 1 Paige, 261. The usual matter-of-course sum allowed in this State, to the wife for carrying on the suit, seems to have been one hundred dollars. Monroy ». Monroy, 1 Edw. Ch. 382. But it may be less or more. Longfellow r>. Longfellow, Clarke, 344 ; Hammond ». Hammond, Clarke, 151. In Forrest v. Forrest, supra, the wife who had been allowed $ 1,500 applied for more ; but she failed because she did not show that she had expended the former sum ; the court 'said, she should show this, then more would be granted. As to the amount of the allowance elsewhere, see also Bird v. Bird, 1 Lee, 418, 5 Eng. Be. 396 ; Amos u. Amos, 3 Green Ch. 171 ; Paterson v. Paterson, 1 Halst. Ch. 389 ; Purcell v. Purcell, 4 Hen. & Munf. 507 ; D'Arusmont V. D'Arusmont, 14 Law Reporter, 311, 8 West. Law Journal, 548; McGee v. McGee, 10 Ga. 477, 491 ; Coles u. Coles, 2 Md. Ch. 341 ; Collins v. Collins, 29 Ga. 517 ; Weber v. Weber, 1 Swab. & T. 219. 1 Ante, § 425 and note. ^ Ante, § 460. " Cooke V. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. I have stated the doctrine in the text according to my understanding of this case. Shelford cites the case, how- ever, as authority for saying, under the head of permanent alimony : " It seems, [371 J § 464 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. proportion to be allotted for alimony, on the delictum of the husband being established, should, as we have seen,^ be greater than pending the suit.^ § 463 [617]. la permanent alimony, as we have seen in temporary,^ there is no established proportion of the income to be given the wife ; " each case must depend upon its own particular circumstances ; no two cases are exactly alike." * The proportion ranges from one half, which is the highest ; but not unfrequently allowed where the bulk of the property came originally from the wife, and where there is no power in the court to restore any part of it to her in specie ; ^ down through two fifths — "no uncommon proportion " ^ — to one third ; ^ between which outer points it appears, in England, mostly to vibrate, though it sometimes descends considerably lower. § 464. It would seem, from some reported cases, that in that u larger proportion is given oat of a small than a large income." Shelford Mar. & Div. 593. In Wadd. Dig. p. 58, the case has this version, — "It would appear, that the court generally gives a larger proportion where the income is small, except where the husband acquires his subsistence by his own personal ex- ertions." I can discover in the case no such doctrine ; and, — Does it exist in rea- son? Aside from those instances in which, from a different consideration, the amount of alimony is suffered to go beyond the income and trench upon the prin- cipal, ante, § 457, why should the proportion be less ont of a large than a small estate 'i People are, as a general thing, as likely to live up to their income when it is large as when it is small, and it is as proper they should ; and, when the hus- band dies, the wife's proportion is the same. It will not do to say, that a certain sum is as much as a woman can reasonably spend ; there is no limit even to rea- sonable expenditures ; especially there is no judicial yardstick by which expendi- tures can be measured off. 1 Ante h 459. 2 Smith u. Smith, 2 Phillim. 235, 1 Eng. Ec. 244 ; Otway *. Otway, 2 Phillim. 109, 1 Eng. Ec. 203. » Ante, 5 459, 460. * Smith V. Smith, 2 Phillim. 235, 1 Eng. Ec. 244. ' Smith V. Smith, supra; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178; Ot- way V. Otway, 2 Phillim. 109, 1 Eng. Ec. 203 ; Taylor v. Taylor, cited in Cooke V. Cooke, supra. s Street v. Street, 2 Add. Be. 1, 2 Eng. Ec. 195. ' Ricketts v. Ricketts, 4 Gill, 105 ; Pomfret v. Pomfret, cited in Cooke v. Cooke, supra. [372] CHAP. XXVI.] AMOUNT DECREED AS ALIMONY. § 465 the present English Matrimonial Court one third of the hus- band's income is taken as a sort of standard, matter-of-course proportion to be allowed to the wife for permanent alimony,^ — from which, of course, variations are to be made in par- ticular cases, according to the principles before laid down in this chapter. And a late English writer, who appears to be familiar with the every-day practice of this court, says : " It seems now settled that one third of the husband's ijicome is the usual rate at which permanent alimony will be allotted, but it is liable to some variation, according to the husband's ability to pay, and the conduct of the parties." ^ § 465 [618]. " The law," says Sir John Nicholl, "has laid . down no exact proportion ; it sometimes gives a third ; some- times a moiety ; according to circumstances." ^ In Kempe V. Kemj)e, where none of the property was derived from the wife, the same learned judge decreed one third of the income to her, observing, that he considered it a liberal allowance. " There is no reason," he said, " why the allowance should be less than usual ; the husband has neither state nor faniily to support, — he is living in retirement on his half-pay and private fortune. His income is 729^., besides personal prop- erty worth about 700^., making altogether an income of rather more than 750Z. per annum. Alimony at the rate of 250/. per annum will not be too much, as Mrs. Kempe is, I appre- hend, willing to take the child. If she declines to take it, the court may be induced somewhat to lessen this sum ; but, if the refusal proceeds from the husband, — if he will not allow his wife the comfort of retaining her infant, — the court, though it cannot control a father's rights, would not be dis- \ 1 " The Judge Ordinary alloted alimony at the nsual rate ; namely, one third of the husband's income, saying," &c. Hyde v. Hyde, 29 Law J. n. s. Mat. 150, 151, note. " The Judge Ordinary refused to allot more than one third, as Mrs. Wallis had brought her husband no property ; it appearing from the reported causes, that the Ecclesiastical Court only allowed a moiety when a large propor- tion of the joint property had come from the wife.'' Wallis v. Wallis, 29 Law J. N. 8. Mat. 151, note. " Browning Div. Pract. 89. » Otway V. Otway, 2 Phillim. 109, 1 Eng. Eo. 203. [ 373 ] § 467 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. posed to hold such refusal as a ground for reducing the al- lowance." ^ § 466. Where the court has a jurisdiction to order a sepa- rate sum to be paid to the wife for the support of such minor children as are intrusted to her care, she will not be permit- ted to have a larger sum as alimony on the ground that she has the children to provide for ; but the proper course for her is to ask for the special order, requiring the husband to pay, not an increased alimony, but money for this specific pur- pose.^ § 467 [619]. If we look at the reason on which the doc- trine of alimony rests, we shall see, that, properly and justly, the cases must be rare in which less than one third of the income is to be given for alimony. The law seems to recog- nize the right of the wife to use one third or more of the common estate, in its rules concerning dower and the distribu- tion of the effects of a deceased husband. And on principles of natural justice and actual need, the wife, living separate from her husband, should be permitted to spend one third as much for her living as he for his. This would be making no allowance for the fact, that she is the injured party ; and, if money could do anything to bind up the wounds inflicted by the husband, his money should be ordered into this ser- vice. When we look at the cases, we do find some in which less than a third is apparently given. Thus, where the hus- band was a seller of venison, and his business yielded 300i. per annum, the wife was allowed 75/. only.^ Where he was a working jeweller, in the net receipt of 300/., the wife's 1 Kempe v. Kempe, 1 Hag. Ec. 532, 3 Eng. Ec. 233. In Lord Pomfret's case, the income was 12,000Z. per annum, the alimony given was 4,000Z. ; the larger part of the fortune had come from the wife, and there was no family ; but the husband was a peer, and had his rank and dignity to support. Cited in Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203, 204. See also Mytton v. Mytton, 3 Hag. Ec. 657, 5 Eng. Ec. 249 ; Westmeath v. Westmeath, 3 Enapp, 42. 2 Hyde v. Hyde, 29 Law J., n. s.. Mat. 150, 151, note; Whieldon v. Whiel- don, 2 Swab. & T. 388 ; Foote v. Foote, 22 111. 425. " Briggs V. Briggs, cited in Cooke ». Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. [374] CHAP. rXVI.] AMOUNT DECREED AS ALIMONY. § 468 alimony was 80/.^ In a case of great profligacy on the part of the husband, where his income was 4,000^., the wife was allowed 600/. in addition to her own separate income of 120Z. ; but there the husband had twelve children to main- tain, educate, and advance in life.'^ We may however ob- serve, that, in most and probably all the cases in which the allowance has been greatly less than the usual standard, this departure from it, is, on an equitable view, only apparent, not real. For instance, where a husband has a family of children to support, his true income, as a foundation for alimony, is what remains after the proper and reasonable expense of providing for them is deducted. And where the husband, not in possession of a fortune, is obliged to rely on his personal labor and exertions, the wife should also contribute hers to the general fund ; * so that, if the husband earns, for exam- ple, a thousand dollars per year, and the wife two hundred, and the court allows her two hundred dollars alimony,* she receives in reality one third, though apparently but one fifth, of the income.^ ' IV. Views applicable alike to both kinds of Alimony. § 468 [619 a] . In several places, during the discussions of this series of chapters, we have departed from the nude statement of the law as set down in the decisions of the courts, to see what is the true legal doctrine governing this matter of alimony. And as the subject seems to be not well understood in our American tribunals, neither prac- titioners nor judges vrill complain if the author here unfolds a little more fully, how the question appears to him to lie. When a breach of matrimonial duty has been committed, sufficient in extent and kind to authorize the injured one to 1 Dawson v. Dawson, cited lb. 2 Durant v. Dnrant, 1 Hag. Ec. 528, 3 Eng. Ee. 231. 8 Vol. i; § 821 ; ante, § 369, note. * Ante, § 455. ^ For farther cases, see Forrest v. Forrest, 25 N. Y. 501, 516 ; Whieldon v. Whieldon, 2 Swab. & T. 388 ; Inskeep v. Inskeep, 5 Iowa, 204. ,[375] § 469 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. separate from the offender, — evidently, on reasons already given,^ the offender should pay to the other as much as will place the other in a pecuniary condition equal to what would be enjoyed if the breach had not taken place. This propo- sition is plain, as one relating to strict right and claim. It is also plain, that, beyond this point, if the court can properly go beyond, there lies a wide range of discretion for imposing damages in compensation for an injury inflicted. Biit, in reason, can the court go beyond? That a wrong has been done, and therefore in reason damages are due, is certain. Certain also is it, that the law provides no action in which to recover these damages, unless the suit for divorce is this action. Now we have, first, the injury suffered, entitling to damages ; secondly, a proceeding, established by law, where- in the judge has a discretion to award money, and no specific rule either of statutory or common law established to limit the discretion below a consideration of the damages. The result seems therefore to be, that, in awarding alimony, the court should take this matter of damages into its considera- tion. But even if this is not done directly, still the view thus presented should prompt the judges, in awarding ali- mony, to lean in favor of the wife, injured by the husband's conduct, in all cases where they entertain doubt. § 469 [619 6]. Another matter to be properly borne in mind, while yet the courts have no power directly to act upon it, is, that, in reason, the husband, under some circumstances, when he obtains a divorce from his wife, should have ali- mony of her.^ But these circumstances are few; because our law — that is, our common law — puts the property into the hands of the husband, to be used by him for his own support, and the support of his family. Yet legislation in some of the States is setting strongly in a direction ulti- mately to exhibit the spectacle of rich wives supporting poor husbands ; and of husbands defrauding their creditors, while wealth embraces them in the arms of their wives. This 1 Ante, § 371, 372. » Ante, § 458. [376] CHAP. XXVI.] AMOUNT DECREED AS ALIMONY. § 470 condition of things is for the legislatures, not the courts ; but the courts, seeing these things, may see reason also, why they should not feel compunction, when, in a proper case, they withhold all allowance of alimony to the wife. § 470 [619 c] . Finally, the award of alimony should be made with a constant reference to the husband's temptation, having wronged his wife already, to wrong her out of what the court allows. And while the judge will exact of him such security as the statute or the rules of unwritten law applicable to the case may authorize, he will also be pressed by this consideration into giving her, while his mandate is useful to her, the full sum to which the circumstances of the case point. [377] CHAPTER XXVII. STATUTORY ALIMONT AND ALIMONY AWARDED ON THE DISSOLU- TION OP THE MARRIAGE. § 471 [619(f]. The foregoing principles concerning ali- mony and its amount have been chiefly, not wholly, drawn from the fountains of the English law, as it existed ip Eng- land while the divorce was only from bed and board. To what extent, or whether at all, they should be modified in this country, and especially where the divorce is from the bond of matrimony, may depend somewhat on the peculiar jurisprudence of the particular State, and the peculiar lan- guage of the statutes concerning alimony and divorce, where the question arises. In the course of the foregoing discus- sions, some siiggestiops have been made from which the views of the writer on such points may be learned. § 472 [620]. Probably, in the United States, the cases will be rare in which the wife will be entitled, on any general principles, to so large a proportion as one half of the hus- band's income for her alimony, whether the divorce is from bed and board, or from the bond of matrimony. For by the statute law of the States generally, the court is authorized to restore to her, especially if the divorce is from the bond of matrimony, the property which the husband received in consequence of the marriage; and, when this is done, an important element in the cases wherein the one-half allow- ance has been made, will be wanting.^ Indeed, the tendency of many of the American authorities, if the tendency can 1 See, ante, § 464, note. [378] CHAP. XXVn.] ALIMONY ON MARRIAGE DISSOLVED, ETC. § 472 be imputed to them, seems to be to put the proportion at a point lower than the English. Even in the case of Burr v. Burr, where the cruelty had been very flagrant, and ten thousand dollars per annum was allowed the wife for ali- mony, this sum appears not to have been more than one sixth, or one fifth, or at most one third, of the probable in- come ; though the decision did not apparently proceed alto- gether on the idea of giving her a precise proportion. We may notice, however, in respect to this case, that the husband had one son by a former marriage to provide for, and that the wife did not bring any considerable -proportion of the property to him, — elements which, we have seen,^ would oper- rate to make the amount of her alimony less.^ In the Forrest divorce case, four thousand dollars per annum were allowed out of an estate estimated at some three hundred thousand dollars.^ A wife in Maryland was allowed a third,* and there are other American precedents for a third ; ^ and, in one case. Chancellor "Walworth observed : " As the defendant cannot marry again during the life of the complainant, and therefore will not want property for the support of a family, if the wife had been perfectly discreet, prudent, and submissive to her husband, I should have allowed her half of this prop- erty." * In another case the same learned judge remarked : " When the amount of the estate is considerable, it is usual to allow the wife, for permanent alimony, from one fourth to one half thereof, where she is not to have the custody of the children of the marriage." ' Yet, in truth, the majority of the American cases shed but little light on this subject, which has been less illumined by the rays from our American 1 Ante, § 457. ^ Bq^. „. ^^„^ 7 Hill, N. T. 207, 212, 10 Page, 20, 38. ' Forrest v. Forrest, 25 N. T. 501, 516. * Rieketts v. Ricketts, 4 Gill, 105. ' Taylor v. Taylor, 4 Des. 167 ; Peckford v. Peckford, 1 Paige, 274 ; Arm- strong V. Armstrong, 32 Missis. 279, 291 ; Miller v. Miller, 6 Johns. Ch. 91 ; Williams ». Williams, 4 Des. 183. Here one third was allowed to the wife, and the care of the daughters committed to her ; and she was to be farther paid snch sam for their support as should be sufficient to board and educate them. ° Pickford v. Pickford, supra. ' Lawrence v. Lawrence, 3 Paige, 267. [379] § 474 ACCOMPANIMEKTS OF MAIN ISSUE. [BOOK V. juridical science, than almost any other within their appro- priate range .^ § 473 [620 a]. If we follow the reason on which the law of alimony rests, we shall be persuaded that the English courts have erred rather in giving too little than too much. And natural was it for them to err in this direction ; because they were sitting under a system of laws, the policy of which is not to relieve the injured party, so much as, by all possible means, to keep the parties together ; even when the union could bring only misery to them, and bring the institution of marriage itself into disgrace and reproach. Under this sys- tem of laws, therefore, it was natural, perhaps right, to guard closely this institution of marriage against the inroad of the idea, that, for any purpose, under any circumstances, was it desirable for an injured one to leave the cohabitation un- less cohabitation became utterly impossible. In tliis country, we hold indeed to the sacred character of marriage, to its being an institution of perpetual union between those who enter into it ; yet we hold also, that it is not an institution in which the wrongs and sufiFerings of human beings are to be buried beneath the clods of a musty superstition, so deep as to exclude the voice of justice from ever entering there. The policy of our law, therefore, should be to do justice ; and thus to give to the injured vrife, not merely what necessity, but what justice, demands.^ § 474 [621] . It has doubtless occurred also to the reader, that perhaps somewhat different principles should control the 1 The following additional cases may be consulted : Thornberry v. Thomberry, 4 Litt. 251 ; Fishli v. Fishli, 2 Litt. 337 ; Clark v. Clark, Wright, 225 ; White ». White, Wright, 138 ; Amsden v. Amsden, Wright, 66 ; Roberts ». Roberts, Wright, 149 ; Miller v. Miller, Saxton, 386 ; Richmond ». Richmond, 1 Green Ch. 90 ; Barrere v. Barrere, 4 Johns. Ch. 187 ; Bedell o. Bedell, 1 Johns. Ch. 604 ; Pra- ther V. Prather, 4 Des. 33 ; Orrok u. Orrok, 1 Mass. 341 ; Stewartson v. Stewart- son, 15 lU. 145 ; Rees v. Rees, 23 Ala. 785 ; Rndman v. Rndman, 5 Ind. 63 ; Swearingen v. Swearingen, 19 6a. 265; Wheeler n. Wheeler, 18 111. 39; King v. King, 28 Ala. 315 ; Snover v. Snorer, 2 Stock. 261. ' And see ante, § 468. [380] CHAP. XXVII.] ALIMONY ON MARRIAGE DISSOLVED, ETC. § 474 courts when allowing statutory alimony on a divorce from the bond of matrimony, from those which govern them on the divorce from bed and board. If so, then no rules could be drawn from the English jurisprudence to regulate the matter absolutely, where the divorce is from the bond of matri- mony ; because, in England, previous to the year 1858, no .judicial divorces dissolving the bonds of a marriage origi- nally valid, were allowed. The exact point here presented seems not to have been considered, to any great extent, by our American judges. In a Tennessee case,^ where the court was called upon to determine the proportion of property it would set apart to the wife, under a statute which provided, that, on a divorce from the bond of matrimony, she should have decreed to her such part of the real and personal estate as the court should deem proper, consistently with the nature of the case,^ — Turley, J., said : " It is to be observed, that, in England, divorces a vinculo matrimonii are not allowed by law, but for causes which vitiate the marriage in its incep- tion, and render it void ab initio ; therefore all the questions, as to what amount of alimony shall be allowed th^ wife, have arisen upon divorces a mensd et thoro ; and the practice in such cases has been, not to decree to the wife absolutely a portion of the real and personal estate of the husband, but only to allot a certain portion of his income for her support, ■the payment of which may be secured by being charged upon his estate. The reason for this practice seems to be, that the bonds of matrimony have not been dissolved ; that the par- ties are not intended to be restored as near as may be to the same situation they occupied before the marriage ; that the wife, not having it in her power to establish herself in life again by marriage, has no need for anything more than a comfortable maintenance ; and that the law still looks to a 1 Chnnn v. Chunn, Meigs, 131. 2 Stat. 1799, c. 19, which has sincegiven place to Stat. 1835, c. 26. The latter statute, says the court, makes different provisions, and only authorizes the court to allot alimony, in cases of divorce a vinculo, as in cases of divorce a mensd." Chann V. Chunn, supra. Yet see Eobinson v. Robinson, 7 Humph. 440, and Payne ». Payne, 4 Humph. 500, where a division of the property was made. [381] § 475 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. reconciliation between the parties, which would be rendered almost impracticable if the property were divided absolutely, each one taking his own. Yet it may be observed, that, in the case of Smith v. Smith,^ the court says :' As it is a rule of equity that no man shall take advantage of his own wrong, perhaps it would be just, that, where the husband violates the matrimonial engagement, and the fortune origi- nally belonged to the wife, he should give back the whole of it.' There seems to be much reason in this remark ; a con- trary practice, however, has prevailed in England, which, as applicable to divorces a mensd et thoro, we would have no disposition to unsettle." § 475 [622]. " But," continues the judge, " in our opinion, a very different rule of practice ought to be applied to cases of divorce a vinculo matrimonii. There the bonds of matri- mony are dissolved ; there the parties are intended to be restored, as near as may be, to the same situation they oc- cupied before the marriage ; there the wife has it in her power to establish herself again by marriage ; and there the law looks to no future reconciliation between the parties. Accordingly it has always been held in England, that, in cases of divorce a vinculo matrimonii, the wife shall take all the property which belonged to her at the time of the mar- riage. But it is said, this was because the marriage was void ab initio, and the husband acquired no right to her property by the marriage. This is true ; and, therefore, there is no necessity of a decree of a court divesting his title ; but this proves nothing, more than the truth of the proposition, that the husband acquired no right by the marriage. It does not prove, nor tend to prove, that it would not have been equity and justice to have divested these rights, if he had acquired any. On the contrary, no one can doubt, that, when the bonds of matrimony are dissolved, the parties ought to be placed as near as may be in the same situation they occupied 1 Smith V. Smith, 2 Phillim. 235, 1 Eng. Ec. 244, and referred to in Poynter Mar. & Div. 252, note ; s. p. in Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. [382] CHAP. XXVn.] ALIMONY ON MARRIAGE DISSOLVED, ETC. § 477 before the marriage." And the court, in this case, proceeded to make a division of the estate — a topic, however, which we shall consider by itself in another chapter — according to the principles here suggested. ^ § 476 [623]. If we accede to the propriety of the views stated by the Tennessee court, as quoted in the last two sec- tions, the result still may be, that they are not to be applied in adjusting alimony. And perhaps the theory of alimony is to leave the parties, as to property, substantially as though no cessation of the cohabitation had taken place ; and the theory of the division of the property, under the statute, to leave theili substantially either as though the marriage had been originally void, or as though it had been dissolved by death. But be this as it may in regard to the division of the property, the court, in awarding alimony, on the divorce from the bond of matrimony, should consider the very different property relations which follow such a divorce, by opera- tion of law, from those which follow the divorce from bed and board. § 477. Since the third edition of this work was published, matter has come to hand enabling the writer, not only to extend the discussion somewhat, but, as he believes, to cast also upon the subject a clearer light of principle, than is to be found in the earlier editions. The English Stat. 20 & 21 Vict. c. 85, § 32, provides, that, " the court may, if it shall think fit, on any such decree [of divorce from the bond of matri- mony] order that the husband shall to the satisfaction of the court secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable," &c. And it is held by the Divorce Court, that, under this statute, the court has a discretion to make, 1 Chunn v. Cbunn, Meigs, 131. To the same effect see Cbenault v. Chenault, 5 Sneed, 248. [383] § 477 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. for a wife who obtains a divorce from her husband for his fault, a provision in the nature of alimony. But in making this provision in the nature of alimony, the late Sir C. Cresswell considered, that the rule of alimony as applied in the Ecclesiastical Courts to the divorce from bed and board, does not furnish the proper guide. He proceeds : " Very few Divorce Bills were found at the instance of the wife, and I cannot find any one in which the husband was com- pelled to make provision for a wife, who elected to be divorced from him. In the present case, the wife elects to have the marriage dissolved, and, although she had strong grounds for complaint, I cannot consider her as in a position at all resembling that of a wife divorced a mensA et thoro. She might have been relieved from the necessity of living with her husband and have remained his wife, but her elec- tion was not to do so. Still, although she did so elect, having good grounds for complaint, the respondent may be consid- ered as in some sort depriving her of her position, and the legislature no doubt intended that she should not seek a remedy at the expense of being left destitute. Not being able to derive any assistance from the practice of Parliament or the Ecclesiastical Court, I must take on myself the ardu- ous duty of deciding what is reasonable in this case. I consider, then, that the wife ought not to be left destitute; on the other hand, I think it would not be politic to give to wives any great pecuniary interest in obtaining a dissolution of the marriage tie. The petitioner had no fortune of her own ; the husband has some fortune and trading profits, but they are neither lai-ge nor certain. Under such circumstances, I think I ought not to award more than a maintenance. It is stated by counsel that the parties had agreed that the daughter should remain with her mother, and be maintained by her ; I therefore take that into consideration. The next point is the period for which the payment to the petitioner shall be continued. Had she been divorced a mensd et thoro, and had afterwards been herself guilty of adultery, she would have become liable to the loss of her alimony. If hereafter the petitioner should become guilty of immo- [384] CHAP. XXVII.] ALIMONY ON MARRIAGE DISSOLVED, ETC. § 478 rality, it would be unreasonable to call upon the former hus- band to maintain her. Again, if she avails herself of the freedom conferred by the decree of this court, and marries again, it would be unreasonable to compel the former hus- band to maintain her. I am therefore of opinion, that so long as the petitioner leads a chaste life, and remains sole and unmarried, and maintains the daughter, the respondent should pay her an annuity of 100/. per annum, payable quarterly, at the four visual feasts ; the first payment the next quarter day after decree. In the event of the death or marriage of the daughter, to be reduced to 80/. Deed to be prepared by conveyancing counsel to secure the annuity on such fixed property as respondent has, and by his cove- nant. Daughter to remain in custody of the mother until further order." ^ § 478. In New York, there is the following statute, having reference to the divorce from the bond of matrimony : " The court may make a further decree or order against the de- fendant, compelling him .... to provide such suitable al- lowance to the complainant, for her support, as the court • shall deem just, having regard to the circumstances of the parties respectively." There a divorce had been granted to a wife by reason of the adultery of her husband, and, pending a reference to determine the amount of alimony to be awarded her under this statute, the husband applied to the court for leave to show, among other things, that, since divorce granted, she, too, had committed adultery ; and he contended, that this fact, if sliown, would operate, in law, either to reduce the amount of alimony, or to bar the ali- mony altogether. But the learned tribunal refused to receive evidence of such alleged subsequent misconduct ; holding, that, under the statute, the question of the allotment of ali- mony must be referred to the facts as they stood at the time 1 Fisher v. Esher, 2 Swab. & T. 410, 413, 414. And see EatoliEF v. Eatcliff 1 Swab. & T. 467, 474 ; Winstone v. Winstone, 2 Swab. & T. 246. VOL. II. 25 [385] § 478 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. the divorce was decreed, and that subsequent incontinence in the woman (it would not be literal adultery), supposing it to exist, would furnish no ground even for the reduction of alimony. " What she may do," said the learned chief justice, " after she has been divorced arid the marriage rela- tion has been dissolved by reason of his adultery, can affect no matrimonial engagement, for none exists ; nor violate any matrimonial duty, for she no longer owes any to her former husband." Again : " What he should be made to pay as the means of her future support, according to all general rules of judgment, must depend upon the facts which create the right to it ; and they must be the facts existing, and as they exist, when the right becomes fixed and perfect." This view the judge deemed to be aided by the peculiar phraseol- ogy of the statute. He summed up the matter as follows : " My conclusion is, that, when a woman is divorced from her husband by reason of his adultery, her right to such suitable allowance as may be just, having regard to the cir- cumstances of the parties respectively as they exist at the time the decree is pronounced, is perfect and absolute. That it is no part of the province of the court that fixes the amount, to watch over her subsequent conduct in life, or to take proof of it, as a ground of affecting the right to an allowance, or its amount. That her subsequent misconduct no more impairs her right to it than such subsequent mis- conduct would impair her right to dower or to a distributive share of her husband's personal estate, if he had died intes- tate, and no divorce had been pronounced. That whatever may be the power of the court, iinder particular statutes or in the absence of any statute affecting the question, to en- large or diminish the amount subsequently, by reason of an improvement or loss of the faculties, (the property) of either or both of them, the allowance is to be fixed in view of all the circumstances proper to be considered, as they exist at the time the decree is pronounced." The court was further of opinion, that the woman could spend the money awarded her for alimony as she chose, and the court could [386] CHAP. XXVn.] ALIMONY ON MARRIAGE DISSOLVED, ETC. § 480 not inquire into this matter on an application to make the sum less.^ § 479. In a Massachusetts case it was observed : " Subse- quently to the marriage of Mrs. Wyman [a woman to whom alimony had been decreed on a divorce from the bond of matrimony] to another husband, this court has thought proper to reduce the amount of alimony to a nominal sum, and for the reason that it was not necessary or proper to charge her former husband for her future support By her subsequent marriage she secured herself other resources for her support, and thus voluntarily furnished the ground for the reduction of the alimony." ^ § 480. The reader has seen in what terms the English and New York statutes are expressed.^ How far those terms did or should influence the decisions, and modify the general doctrines which are quoted in the foregoing sections, the reader can judge for himself. The Pennsylvania statute, under which alimony is sometimes allowed, — not to the in- nocent wife, there being perhaps for her other statutory pro- vision, but to the guilty wife, against whom the husband has obtained a divorce from the bond of matrimony, — is in the following words : " That in cases of divorce under this act, if the application shall be made on the part of the husband, the court granting such divorce shall allow such support or alimony to the wife, as her husband's circumstances will admit of, and as the said court may deem just and proper."**. The more general provision, applicable to divorces from the bond of matrimony, contained in the Iowa statute, is the following : " When a divorce is decreed, the court may make such order in relation to the property of the parties and the 1 Forrest v. Forrest, 3 Bosw. 661, 693, 694, 698, 699, opinion by Bosworth, C. J. Compare this case with GriflSn v. Griffin, 23 How. N. Y. Pr. 189, 21 lb. 364. 2 Albee v. Wyman, 10 Gray, 222, 230, opinion by Dewey, J. « Ante, § 477, 478. * Shoop's Appeal, 10 Casey, 233. See ante, § 376. [387] § 482 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK Y. maintenance of the wife as shall be right and proper." And under this provision, alimony is, among other things, de- creed, though the term alimony is not found in it.^ There are, in our States, various other statutes under which ali- mony on a divorce from the bond of matrimony, is granted to the wife ; and perhaps the terms in which some of them are expressed, may more directly point to the ecclesiastical rule of alimony, than do these. But whatever be the words, the court is in all circumstances required to look into the facts of each case, to consider the legal condition in which the parties will stand to each other after the divorce, and to exercise a sound judicial discretion. § 481 [623 6]. There are some plain propositions of com- mon sense, governing this matter of alimony on a divorce from the bond of matrimony, as follows : First. The inno- cent party should not be left to suffer pecuniarily for having been compelled, by the conduct of the other, to seek the di- vorce. Secondly. The wife, made thus in a certain sense a widow, should not usually be' set back simply where she stood, in point of property, when she entered the marriage. She has given her time, her virginity, her earlier bloom, where she has been rewarded with only ill faith in return for her faith. Thirdly. She should not stand worse than if death, in- stead of divorce, had dissolved the connection. § 482. If, therefore, upon this divorce from the bond of matrimony decreed in favor of a wife, the statute laws of the State will permit, the court, irrespective of what will be ordered as alimony, should place the wife (now indeed under coverture no longer) who, on the death of the man, will not be his widow, and who will have no future claim upon him growing in any way out of the coverture, in as good a situ- ation as if death, instead of divorce, had broken the marriage bond, and she had survived as his widow. Beyond this 1 Dapont V. Dapont, 10 Iowa, 112. [388] CHAP. XXVII.] ALIMONY ON MARRIAGE DISSOLVED, ETC. § 484 point there is still room for the court to travel, but up to this point the way would seem to be clear in every ordinary case. Beyond this point, then, let us look. In some circumstances there will be unexpended property of the wife, and uncon- Siimed articles of hers, brought by her into the common naatri- monial fund, the legal title whereto has vested in the husband; and in many cases, perhaps most, but not in all, the title, if the court has authoi'ity, should be made to revest in the wo- man. When all this is done, there may still be left a margin for alimony, wider or narrower according to circumstances. The woman should still have such further decree, if further be necessary, that she will not be made to suffer in her pecuni- ary interests for having sought the divorce ; she should be left as well off in respect to the means of livelihood, as if the husband had not broken his marriage vow. It is difficult to make this suggestion clearer by enlarging upon it, therefore let it stand as it is. § 483. The suggestions of the last section, it is observed, contemplate, besides alimony to be decreed under the name of alimony, an immediate investing also of actual property in the woman. Such actual property so invested would not be forfeited by any breaches of morality she might commit, or by her mai-rying again. And when the court, not having authority to make this investiture, or not deeming it best to exercise the authority, decrees to her alimony instead of what would be due her on this view of the case, this alimony should not be taken away, though she should commit the unlawful and disgraceful act of fornication, or the lawful and honorable one of matrimony. § 484. When, however, there is a decree of alimony ex- tending beyond this point, it certainly seems to the writer, that, if the woman misbehaves herself by commerce — at least, by a habitual commerce — with other men, this further alimony should cease. On the other hand, also, if she be- haves herself, and does what is in the highest degree com- mendable, by becoming a wife to a second husband, receiving [389] § 484 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. her support from him, this further alimony may with pro- priety be likewise discontinued. Yet it cannot be any part of the policy of the law, which favors matrimony, so to shape its rules as to make it in effect penal for a woman who has obtained a divorce, to marry a second time. [390] CHAPTER XXVIII. THE PROCEDURE WHEREBY THE DECREE FOR ALIMONY IS OBTAINED AND ITS PAYMENT IS ENFORCED. Sect. 486. Introduction. 486 - 498. Pleadings in Respect to Alimony. 494-496. Evidence in Respect to Alimony. 497 - BOO. How Decree for Alimony is made and enforced. 601-508. Obtaining Security, and the like, for its Payment. § 485. In the present chapter, .the following matters will be discussed : I. The Pleadings in Respect to Alimony ; II. The Evidence in Respect to Alimony ; III. How the Decree for Alimony is made and enforced ; IV. Obtaining Security, and the like, for the Payment of Alimony. I. The Pleadings in Respect to Alimony. § 486. So far as the writer of these volumes is able to as- certain from the English books, neither the ecclesiastical libel for divorce, nor the petition made use of in the present matrimonial court, contains any mention of the husband's faculties, or ability to pay alimony, or any specific prayer for alimony. There was, indeed, in the libel, in connection with the specific prayer, the general phrase " and that other- wise right and justice may be effectually administered in the premises." Likewise accompanying the particular prayer of the present petition, we find the words " and that your pe- titioner may have such further and other relief in the prem- ises as to your lordship may seem meet." [391]. § 489 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. § 487. Should, then, the American libel for divorce, when presented by the wife, coutaia a statement of tlie faculties of the husband, and a prayer for either temporary or permanent alimony ? So far as the writer of these volumes has had an opportunity to know the form of the pleadings, the libel in this country generally makes some mention of the husband's ability to pay alimony, or, at least, contains a prayer for ali- mony, when such is really sought by the complainant. At the same time, the insertion of this matter in the libel may have been a work of mere abundant caution, not essential to the relief ; and the writer believes, that, in most of our States, the law, correctly expounded, is so, and the alimony can just as well be had witliout any mention of it, or of the husband's faculties, as with, — though, singular as it may appear, this point seems not to have come up anywhere for adjudication. § 488. Alimony is an incident to a divorce suit ;^ but it is not, in separation from the suit, a thing of litigation ; it may accompany tlie main proceedings ; it may follow them in the final judgment ; it cannot exist in judgment where th6 divorce, or tlie proceeding for divorce, does not ; and it is difficult to see on what principle this matter must be mentioned in the principal pleadings, any more tlian in a suit at the common law, the costs which the party hopes to recover must be so mentioned. And in confirmation of this view, we have, as already observed, the practice in England, whence our un- written law is derived. It is true that alimony is allowed only on representation made to the court, accompanied by proofs and by prayer ; but the same thing, in substance, exists with regard to common-law costs. § 489. A party who would obtain alimony, whether tem- porary or permanent, must in some way make application for it to the court.2 In Georgia it was said : " The rule is, that in a suit for a divorce tlie court will, upon motion, if the mar- 1 Lawson v. Shotwell, 27 Missis, 630. * Chandler v. Chandler, 13 Ind. 492. [392] CHAP. XXVIII.J PKOCEDUKE IN ALIMONY. § 490 riage is admitted, order the husband to pay to the wife a sum certain for her support, pendente lite, and for the expenses of the litigation, and he will be in contempt if he does not pay it." ^ There is a New York case which holds, that an appli- cation for alimony, pending a suit, should be by petition, with proper notice to the other party, — " this is the usual and proper mode." ^ The difference, however, between petition and motion in such a case may not always be very material. When alimony, either temporary or permanent, has been awarded, and a party wishes to have the amount increased or dimin- ished, he makes his application by petition ; and an original bill, or other original proceeding, for this purpose, even with respect to permanent . alimony, after the principal suit has closed, is improper, or, at least, unnecessary.^ § 490. In the present English Matrimonial Court, the ap- plication for alimony, whether temporary or permanent, is by petition, which sets forth the faculties of the husband, and prays that the alimony may be awarded.* In the ecclesiasti- cal practice, the petition was called an allegation of faculties.^ This form of petition has been sometimes used in this coun- try ; it is always proper ; and, if the libel does not set out the faculties, it is necessary. And the writer is persuaded, that, on sound principles of pleading, even if the libel should mention the matter of the faculties and alimony in general terms,^ it should not descend to detail here, but whatever de- tail is necessary should be found in the petition for alimony, or, in other words, the allegation of faculties. In an Ala- bama case, where the question was upon permanent alimony, 1 McGee v. McGee, 10 Ga. 477, 489, opinion by Nisbet, J. And see Eoseberry V. Eoseberry, 17 Ga. 139; Swearingen w. Swearingen, 19 Ga. 265. ^ Longfellow v. Longfellow, Clarke, 344. And see Mix v. Mix, 1 Johns. Ch. 108; Culver v. Culver, 8 B. Monr. 128 ; Lewis v. Lewis, 3 Johns. Ch. 519 ; Os- good V. Osgood, 2 Paige, 621 ; Bray v. Bray, 2 Halst. Ch. 27. ' Snover v. Snover, 2 Beasley, 261 ; Pafif v. Faff, Hopkins, 584 ; Neil v. Neil, 4 Hag. Ec. 273. * Browning Div. Pract. 140. * Coote Ec. Pract. 339 ; ante, § 447. 5 Ante, § 487. [393] § 490 ACCOMPANIMENTS Of MAIN ISSUE. [BOOK V. and the court below had, on motion and simple petition, while granting the prayer of the wife for her divorce, referred the matter to a master to inquire and report concerning the estate of the husband, and the husband had appeared before the master, it was deemed to be too late to disturb the pro- ceedings. Yet it was observed, that the proper course would have been to file, instead of the simple petition, an allegation of faculties. "The allegation," said Ormond J., "is made whilst the suit is in progress for alimony pending the suit, or after the decree is pronounced, for a permanent allowance." In the present case, " it would certainly have been more regular for the wife, after the decree was passed, to have filed her pe- tition setting forth the estate of her late husband, and his answer thereto would in all probability have dispensed with the necessity of a reference." ^ And in a New York case. Chan- cellor Walworth observed : " If a proper allegation of faculties was filed with the master, and the answer of the husband taken to the same, as should have been done before pro- ceeding with the reference to ascertain the proper amount of alimony," &c. ; thus recognizing fully the same practice.^ The ' practice of courts will differ in minor particulars : but there can be no doubt, that, as a correct principle of procedure, the allegation of faculties should attend every divorce cause, whether before an equity court or a court of common law, wherein either temporary or permanent alimony iS' demanded ; still, the name of the allegation, whether it be called an alle- gation of faculties or a petition, is immaterial. It should set forth the faculties of the husband, and it should be answered by him. The answer in equity should be under oath; the answer in the Ecclesiastical Courts was always under oath ; the same is true of the answer before the present English Divorce Court ; and no reason appears why any court in our country should hesitate to require the oath. Still, there are doubtless some of our States in which the oath to such an answer, or even the answer itself, has never been required in 1 Lovett V. Lovett, 11 Ala. 763, 771. "■ Kendall D. KendaU, 1 Barb. Ch. 610. See also Wright v. Wright, 3 Texas, 168. [394] CHAP. XXViaj PEOCEDURE IN ALIMONY. § 492 practice ; and, under such circumstances, the legal adviser of the wife would hesitate to say affirmatively, that a single judge would feel justified in ordering it, tliough he might with more confidence apply to the bench of judges and ask to have a standing rule made to this effect. § 491. Where temporary alimony is asked for, and after- ward permanent alimony, shall the latter be decreed upon the same allegation of faculties upon which the former was ordered, or must the work of establishing the faculties be gone over the second time ? This is doubtless a matter which must depend upon the circumstances of the case and the discretion of the court. In most cases, an arrangement concerning the temporary alimony may be practically effected without the more thorough and exact examination which is or may be required to fix the permanent alimony. Par- ticular rules of procedure, whether they rest in custom or in written rules of court, should receive such form and be so applied as to facilitate, not obstruct, the business of the tri- ■ bunal ; they should be made to save labor, save expense, and at the same time promote justice. § 492. Allusion has been already made to the question, whether, if there is no request for alimony, and no decree of alimony, in a case, and the decree for divorce has been ren- dered, and the court has adjourned for the term, and the matter has been thus closed, there may be a subsequent pro- ceeding in which the omission can be supplied, and the ali- mony can be granted.^ In Massachusetts, there is the following statute : " The Supreme Judicial Court, after a decree of divorce has been granted on the libel of a married woman, may at any time, upon petition therefor, make such decree respecting alimony, or other provision for her main- tenance, or for the benefit of the children of the parties, as it might have made in the original suit ; although no such de- cree of alimony or other provision was made in the original 1 Ante, § 381, 382. [395] § 492 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. decree of divorce, or prayed for in such libel ; and it may from time to time revise and alter such decree, as the circum- stances of the parties and the benefit of the children may re- quire." ^ The writer is informed, that, previous to the pas- sage of this statute, though there is no reported case, the judges did not deem themselves authorized to exercise the power, as to alimony, which the statute confers. In the former Court of Chancery, in New York, the decree used to reserve to the wife, in proper cases, the right to go before a master and get his report as to the proper allowance for alimony ; and the decree, as observed by Chancellor Wal- worth, " might direct the payment, of the amount which should be reported by the master, upon the coming in and confirmation of his report." ^ And there is a New York case, in which, while the point we are now discussing is not de- cided, it is observed: "The suit itself was in fact termi- nated by the final decree ; as no costs were awarded, and no right was reserved to the wife to apply for alimony for her own support." It was however held, that, in such a case, the wife, after her marriage to another husband, might in conjunction with such second husband apply to the court, by petition, for an order giving her the care and custody of a child of the first marriage, without reviving the suit ; the power given to the Court of Chancery by the statute, in a suit for divorce, to direct as to the care and custody of the children, being a mere collateral power.^ Probably a correct view of this matter, as to alimony, is, that it depends upon a consideration of the statutory provisions of the State ; and that, in some States, under their statutes and peculiar juris- prudence, the alimony may be awarded at any time after the main issue is closed, though no mention of alimony is to be found in the proceedings or decree, while in other States this cannot be done.* 1 Gen. Stats, c. 107, § 48. « Cooledge v. Cooledge, 1 Barb. Ch. 77. » Cook V. Cook, 1 Barb. Ch. 639. * And see Lawson v. Shotwell, 27 Missis. 630 ; Winstone v. Winstone, 2 Swab. & T. 246 ; Shotwell v. Shotwell, Sm. & M. Ch. 51 ; Forrest v. Forrest, 3 Bosw. 661 ; Bankston v. Bankston, 27 Missis. 692. [396] CHAP. XXVm.] PROCEDURE IN ALIMONY. § 495 § 493. Where there is an application to increase or reduce the alimony already awarded, tlie petitioner must sufficiently show the facts on which the application rests, or it will not be successful.^ Various other matters having a greater or less relevancy to our present discussion will be found inter- spersed through the foregoing chapters relating to alimony. II. The Evidence in Respect to Alimony. § 494. The most important evidence upon which, where the English practice prevails, alimony is decreed, consists in the answer of the husband, under oath, to the wife's allega- tion of faculties.^ The wife is not bound to accept the an- swer, she may produce further testimony if she pleases ; but in most cases she does accept of it, and it therefore settles the matter as to the faculties.^ The answer is to be con- strued most strongly against the husband,* and he is to be presumed to have made all needful deductions in his own favor.^ § 495. As we have already seeu,^ it is or has been the custom in New York, on decreeing a divorce in favor of the wife, to refer the question of the amount of alimony to a master, who, aided by the allegation of faculties and the husband's answer thereto, and by the other facts appearing in the case, and by the testimony of witnesses whom he may summon before him, makes his report for the confirmation of the court.'' Still, this course was never necessary even in 1 Saunders v. Saunders, 1 Swab. & T. 72, 73 ; Shirley v. Wardrop, 1 Swab. & T. 317. 2 Ante, S 490. 2 Brisco V. Brisco, 2 Hag. Con. 199; Higgs v. Higgs, 3 Hag. Ec. 472 ; Durant V. Durant, 1 Hag. Ec. 528. * Robinson v. Robinson, 2 Lee, 593, 594. 6 Rees V. Rces, 3 Phillim. 387, 391. " Ante, § 490. ' And see Mulock v. Mulock, 1 Edw. Ch. 14. In some cases there was a refer- ence to the master, even with respect to temporary alimony. Gerard o. Gerard, 2 Barb. Ch. 73. See also Forrest ». Forrest, 6 Duer, 102. [397] § 496 ACCOMPANIMENTS OP MAIN ISSUE. [BOOK V. New York ; but, if both parties requested the court to de- termine the question upon the facts appearing before it, this course would be pursued.^ So, generally, where the facts were sufficiently before the court, it would proceed, without the reference to the master, to make the decree.^ In New Jersey, the Chancellor observed, on making an order for alimony pendente lite, " I deem it unnecessary to refer the matter to a master. That course may be taken, but I have never adopted it." ^ Where, in another case, the question was upon permanent alimony, the Chancellor said : " There is no need of referring this matter to a master, as I have all the evidence before me which would enable the master to determine the amount proper to be allowed." * And the rule in New Jersey seems to be, where the question is of permanent alimony, to refer the matter to a master, or not, according to the circum- stances.^ And in Upper Canada, where the hearing is also before a court of equity, it is deemed not necessary to refer the matter in all cases to the master ; and the court will not make the reference, when, by passing itself upon the matter in the first instance, it can save expense to suitors. And the observation was made, that in the English Ecclesiastical Court this work is done by the court itself.^ Thus stands the matter before a court of equity ; when the court is one of common law, there is, of course, no reference to a master. § 496. Before there can be temporary alimony awarded, the marriage must be either admitted or proved,'' and there must be some evidence of the faculties.^ These are matters 1 Peckfoi-d V. Peckford, 1 Paige, 274. ^ Bariere v. Barrere, 4 Johns. Ch. 187. ' Amos V. Amos, 3 Green Ch. 171, 172. * SnoTer v. Snover, 2 Stokt. 261. 6 Miller v. Miller, Saxton, 386; Richmond v. Richmond, 1 Green Ch. 90; Braj V. Bray, 2 Halst. Ch. 27. 5 Soules V. Soules, 3 Grant, U. C. Ch. 113, 121. ' Mitchell V. Mitchell, 1 Spinks, 102 ; Roseberry v. Roseberry, 17 Ga. 139. And see Kline v. Kline, 1 Philad. 383, bottom paging. 8 Wright V. Wright, 3 Texas, 168. [398] CHAP. XXVni.] PROCKDTJEE IN ALIMONY. § 497 which have already been mentioned in the foregoing pages.^ In a North Carolina case it was held, that the affidavit of a petitioner for temporary alimony, annexed to her petition, wherein she sets forth the amount of the husband's property, and of what kind it consists, is sufficient primd facie for the court to act upon, in making the order for the alimony prayed.^ The procedure of the Ecclesiastical Courts was such as to put the parties at once upon their oaths as to the fact of a marriage, and the same thing is at present effected in England by the rules of the Matrimonial Court. There seems to be no reason requiring the marriage, with us, to be proved in any formal way ; the parties may be put to their oaths respecting it, or the proof may be the usual interloc- utory proof, such as is sufficient upon ordinary motions.^ III. How the Decree for Alimony is made and enforced. § 497. The reader perceives that the decree for permanent alimony need not be made at the same time with the decree for divorce. It would be often and indeed generally incorrect to try the distinct issues involved in the question of the guilt of the husband, and in the question of the amount of ali- mony to the wife, at one time and before one jury, or before the court ; and it is believed that no such practice is generally prevalent in this country. But upon this and some kindred matters, relative- to both temporary and permanent alimony, the writer deems it not best to say more, except to refer in a note to a few cases.* 1 Ante, § 386, 402-405. ^ Gaylord v. Gaylord, 4 Jones Eq. 74. * And see Farwell v. Farwell, 31 Maine, 591 ; Schmidt v. Schmidt, 26 Misso. 235. * Forrest J). Forrest, 3 Bosw. 661 ; Reavis v. Reavis, 1 Scam. 242; Shotwell v. Shotwell, Sm. & M. Ch. 51 ; Goss v. Goss, 29 Ga. 109; Bankston v. Bankston, 27 Missis. 692 ; Pinckard v. Pinckard, 23 Ga. 286 ; Fletcher v. Henley, 13 La. An. 150; Slocum v. Slocum, 2 Philad. 217, bottom paging; Dwelly v. Dwelly, 46 Maine, 377. • [399] § 499 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. § 498. If the order to pay to the wife temporary alimony, or money for the prosecution or defence of the suit, is dis- obeyed, the court may enforce it against the husband by process as for a contempt ; ^ or, in some courts, there may be an execution issued, or a series of executions issued from time to time for the alimony, either temporary or permanent, which has been ordered.^ There are various methods by which the payment of alimony may be enforced in particular courts and under particular circumstances, but an attempt to consider all of them would lead us too far into considerations of general legal practice.* § 499. Some courts hold, that for arrears of alimony an action of debt may be maintained.* By other courts the proceeding by scire facias is deemed to be proper.^ And we have already adverted to the doctrine, as sustained by the Supreme Court of the United States, that a bill in equity will in such a case lie.^ But these matters depend very much upon the court, as to whether it is a court of equity or of law in which the decree for alimony is pronounced ; upon the terms of the decree ; and perhaps upon some other like things. The general doctrhie seems to be, that an action of debt 1 Gerard v. Gerard, 2 Barb. Ch. 73 ; Ward u. Ward, 1 Swab. & T. 484 ; Alex, ander u. Alexander, 2 Swab. & T. 385 ; Grimm J>. Grimm, 1 B. D. Smith, 190 ; Ormsbyi). Ormsby, I Philad. 578, bottom paging; Ex parte Perkins, 18 Cal. 60; Dwelly V. Dwelly, 46 Maine, 377 ; Pinekard v. Pinckard, 23 Ga. 286 ; Thomas v. Thomas, 2 Swab. & T. 64 ; Davies v. Davies, 2 Swab. & T. 437 ; Hepworth v. Hep- worth, 2 Swab. & T. 414 ; Busby v. Busby^ 2 Swab. & T. 383 ; Purcell v. Purcell, 4 Hen. & Munf. 507 ; Greenhill v. Greenhill, 1 Curt. Ec. 462, 6 Eng. Ec. 376. 2 Fletcher v. Henley, 13 La. An. 150; Schmidt v. Schmidt, 26 Misso. 235; Sheafe ». Sheafe, 36 N. H. 155 ; Sheafe v. Laighton, 26 N. H. 240 ; Piatt v. Piatt, 9 Ohio, 37 ; Olin v. Hnngerford, 10 Ohio, 268 ; Orrok v. Orrok, 1 Mass. 341 ; French ». French, 4 Mass. 587 ; Howard v. Howard, 15 Mass. 196. s See Latham v. Latham, 2 Swab. & T. 299 ; Bird v. Bird, 1 Lee, 572, 5 Eng. Ec. 455 ; Cason t). Cason, 15 Ga. 405. 4 Clark V. Clark, 6 Watts & S. 85. ' Ante, § 376, note ; Hewitt v. Hewitt, 1 Bland, 101 ; Morton r>. Morton, 4 Cush. 518. 6 Ante, § 203 ; Barber v. Barber, 21 How. U. S. 582, 590, 591. But see Bar- ber V. Barber, 1 Chand. 280. [400] CHAP. XXVin.] PKOCEDURE IN ALIMONY. § 600 cannot be maintained in a common-law tribunal, for the recov- ery of money decreed in a court of equity.^ In New Jersey, on a suit at common law to recover alimony and costs decreed by the equity court of New York, the plaintiff was held not entitled to recover, first, because no suit at law will lie on a decree in equity ; and, secondly, because, in the nature of the decree of alimony, it cannot be enforced in this way. And on the latter point Hornblower, C. J., remarked : " Suppose a decree for alimony, and afterwards the wife should return to the husband and be reconciled ; or should so badly conduct herself as to entitle the husband, in equity, to be relieved from the decree ? Or, a change in his circumstances, from competency or wealth to embarrassment and poverty, under providential dispensations, that would induce the chancellor to lessen the amount of alimony ? What could a court of law do in such case ? We could only give judgment and execution for the whole amount." ^ § 500. When alimony is in arrears, the usual practice is to apply to the court in which the decree for alimony was rendered, for such process as the nature of the case, the terms of the decree, and the peculiar constitution of the tribunal may require.^ The application is a proceeding in the original suit, not the institution of a new one, wherefore it need not be commenced or carried on in the formal manner which the laws provide in cases of original proceedings.* In cir- cumstances wherein this summary course cannot be taken, by reason of the decree being a foreign one, or the like, the question is attended with considerable embarrassment ; but it is not thought best to discuss the matter further here. 1 Hugh V. Higgs, 8 Wheat. 697. ' Van Buskirk v. Mulock, 3 Harrison, 184, 193, 194. s Hewitt V. Hewitt, 1 Bland, 101. * lijon V. Lyon, 21 Conn. 185. And see Bauman v. Bauman, 18 Ark. 320. VOL. II. < 26 [ 401 ] § 502 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. IV. Obtaining Security, and the like, for the Payment of Alimony. § 501. In some States, the decree for alimony is, or may be made, a lien on the real estate of the husband.^ In other States, there are processes by which the property of the hus- band can be otherwise appropriated to the payment of the alimony .2 And in some, perhaps most, of the States, the court can require the husband to give security for the payment of the alimony.3 § 502. In South Carolina, where a husband declared his intention to abandon his wife, and to carry off the proceeds of so much of her property as he could dispose of, the court interfered by injunction, and compelled him to make a set- tlement of the property for the use of himself and wife.* This was not a divorce case ; but there are divorce cases in which the injunction has been made an efficient instrument for securing to the wife her alimony. Thus in Maryland, where a wife had brought her suit for divorce and alimony against the husband, she, pending the suit, in which he did not appear, was permitted to show that he was entitled to certain leasehold property, which she feared he might convey away, and so render her decree for alimony practically with- out avail ; whereupon an injunction was awarded against him, prohibititig his alienating any of the property of the existence and ownership of which she had given evidence.^ And in Indiana it has been laid down, that, pending a wife's bill for divorce against her husband, the court may make an order 1 Olin V. Sungerford, 10 Ohio, 268 ; Frakes v. Brown, 2 Blackf. 295 ; Hamlin . Jeans, 2 Earring. Del. 142. ^ On this subject the reader may consult the anlhorities cited supra, in this sec- tion, and ante, § 445 - 457. Also see ante, § 476 - 481. Also Holmes v. Holmes, Wallc. Missis. 474, 476 ; Dejarnet ». Dejarnet, 5 Dana, 499 ; Tewksbury v. Tewks- bury, 4 How. Missis. 109 ; Kingsberry v. Kingsberry, 3 Harring. Del. 8 ; Maguire 0. Maguire, 7 Dana, 181 ; Sanford v. Sanford, 5 Day, 353. " Fishli V. Fishli, 2 Litt. 337. See also Kudman ». Budman, 5 Ind. 63 ; Wright V. Wright, 7 Texas, 526. * Ante, § 377-379. [410] CHAP. XXIX.] DIVISION OF PEOPEKTY. § 513 such way as to them shall seem just and right, having due regard to the rights of each party and their children, if any ; provided, however, that nothing herein contained shall be construed to compel either party to divest him or herself of the title to real estate." And under this statute it is held, that, though the marriage is dissolved at the prayer of the husband, the guilty wife may claim a maintenance out of his property. Her share will not be as great as when she is the innocent applicant ; but, it was judicially observed : " We are clear in the opinion, that no construction can be put upon the statute which would authorize the court, in any case, to do less than provide a maintenance for the wife, if the estate of the husband is suflScient for that purpose. We use the word maintenance in preference to subsistence, be- cause we thinis the statute evidently contemplated something beyond the mere support. She should be enabled, if her husband's estate were such as to justify it, to live in such a manner, as that, if possible, she may regain her lost standing in society." Accordingly, where a decree dissolving the mar- riage was pronounced on application of the husband, for the cause of the wife's desertion, — the parties being old, their children being grown up and provided for, the personal estate being valued at $ 13,685, consisting mostly of slaves, and the real being valued at f 1,800, their joint accumulation during the cohabitation, and she having no separate prop- erty, — an allowance to the wife of one third of the personal estate absolutely, and the use of one third of the land for her life, was deemed reasonable. And it was further held, that to grant her thus the use of this real estate was not to divest him of his title to it, within the meaning of the statute.-^ 1 Lovett V. Lovett, 11 Ala. 763. See also McCafferty v. McCafFerty, 8 Blackf. 218, an Indiana case, where the court, having decreed that the complainant should pay to the defendant one hundred dollars in certain instalments, and also the costs of the suit, this was held not to be error. The judgment probably proceeded on the Revised Statutes of 1 843, c. 35, ^ 60, p. 604, which provide, that " the court shall, in all cases subordinate to the preceding provisions, regulate the division and distribution of the estate, real and personal, between the parties, and the allowance [411 J § 515 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. § 514 [627] . In a Kentucky case, ' which embraced the singular element, that the court below had erroneously given the husband a divorce to which he was clearly not entitled, while the Court of Appeals had by law no power to disturb, in this respect, the decree,^ — it appearing, that the defendant wife was in every way peculiarly estimable ; that she had been fraudulently removed from the home of her husband, who evidently was desirous to get rid of her ; that the value of the estate she brought to him on the marriage, he being a widower with several children, and she a maiden lady, was about one thousand dollars ; that the value of his estate was from twelve to fifteen thousand, consisting chiefly of land and slaves, — the latter court restored to her the property she originally possessed, and gave her seven hundred and fifty dollars besides.^ § 515 [628] . There has been a question, whether the court, in dividing the estate, must assign to the wife a portion of it in specie ; or whether her allowance may be in money, when the assignment of specific property is less convenient. A. statute of Connecticut provided, that, on a divorce, " it shall be in the power of the Superior Court to assign, to any woman so separated, such reasonable part of the estate of her late husband as in their discretion the circumstances of the estate may admit, not exceeding one third part thereof." The provision bemg an old one, Brainard, J., observed con- of alimony to the wife, or to her and the minor children committed to her care and custody, according to equity and good conscience, having also due regard to the legal and equitable rights of each part}' ; but nothing contained in this article shall authorize the court to divest any party of their title to, or interest in, any real estate, further than is expressly specified herein." And see Eichardson v. Wilson, 8 Yerg. 67 ; Sheafe v. Sheafe, 4 Tost. N. H. 564. 1 And see Thornberry v. Thornberry, 4 Litt. 251 ; Maguire v, Maguire, 7 Dana, 181 ; Boggess v. Boggess, 4 Dana, 307. ^ Pence v. Pence, 6 B. Monr. 496. See, as further illustrating the topics of the foregoing sections, Pitts v. Pitts, 14 Texas, 443 ; Trimble v. Trimble, 15 Texas, 18; Jackson v. Stewart, 20 Ga. 120; Rourke v. Rourke, 8 Ind. 427; Sharp v. Sharp, 2 Sneed, 496 ; Houston v. Houston, 4 Ind. 139, 141 ; Wilmore v. Wilmore, 15 B. Monr. 49 ; Kashaw v. Kashaw, 3 Cal. 312 ; Hagerty v. Harwell, 16 Texas, 663. [412] CHAP. XSIX.J DIVISION OF PEOPERTT. ' § 516 ceniing it : " This particular section has long received a par- ticular construction, by which, whatever doubts I might have were the statute of recent date, I now feel myself bound. The Superior Court, in granting a bill of divorce to the wife, she being the innocent party, have, where the situa- tion of the estate would not literally admit of an assignment of a part, uniformly decreed the payment of a sum of money. This practical construction seems clearly to be within the equity of the statute, the object of which was, a reasonable allowance to the innocent and unfortunate wife, out of the estate of an offending and unprincipled husband. A differ- ent construction would put it in the power of the husband, owning a large real estate, for the purpose of defrauding an innocent and distressed wife, to dispose of the whole, convert it into money, and leave nothing for the decree to operate up- on." Therefore, where the husband was an inhabitant of the State of New York, and there owned an estate worth 4,500 dollars, but had no property in Connecticut, yet had appeared by attorney to the wife's suit ; the court decreed, that he should pay her 1,500 dollars, being a sum not exceeding one third part of his estate, together with her costs of suit, and, on failure to pay her, as a penalty, the sum of 3,000 dollars ; and this was held not to be error.^ We shall presently see, that a similar view of the question has been taken by the tri- bunals of Indiana and Tennessee.^ §516 [629]. On the other hand, the Kentucky court, — under an act which, like the Alabama one before mentioned,^ provides, that " the court, on pronouncing the decree of di- vorce, shall regulate and order the division of the estate, real and personal, in such way as to them shall seem just and right, having due regard to each party and the children, if any ; provided, however, that nothing herein contained shall be construed to authorize the court to compel either of the parties to divest himself or herself of the title to the real 1 Sanford v. Sanford, 5 Day, 353 ; Lyon v. Iiyon, 21 Conn. 185, 198. 2 Post, § 516. 8 Ante, ^ 513. [413] § 516 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. estate," — held, that the estate must be divided in specie, and that a gross sum of money in lieu thereof could not be de- creed to the wife. The court also held, that it could not, in making this division, take into consideration lands situated in another State.^ But when the same wife, the husband having lands in Indiana, brought afterward in Indiana her bill asking for a division to be made of those lands in her favor, or for alimony out of them, she was refused ; and the court held, — the statutes of the two States ^ being alike, — that the Kentucky tribunal had jurisdiction of the whole matter ; that it was not necessary, on granting a divorce, to divide the property in specie, if such division could not be conveniently or properly made ; and that consequently the Kentucky tribunal could have decreed to the wife an annuity, or a gross sum of money, in consideration of the lands in Indiana ; or could have assigned to her use, out of the Ken- tucky lands, such a share as she would be entitled to, on taking the whole into consideration. If, in point of fact, that court had failed to do her full justice, the courts of Indiana could not interfere ; for the principle, that a matter once ad- judicated by a competent tribunal is forever at rest, embraces not only what was actually determined, but whatever else the parties might have litigated in the cause. As a general rule, however, the division of the property should be made in specie, not by the decree of a gross sum to be paid the wife.^ Under a similar statute in Tennessee, it was held to be competent for the court to give the wife alimony, instead of a specific portion of the husband's property.* In Iowa the statute provides, that, " when a divorce is decreed, the court may make such order in relation to the children and property of the parties, and the maintenance of the wife as shall be 1 Fishli V. Fishli, 2 Litt. 337. See Wilmore v. Wilmore, 15 B. Monr. 49. 2 For the statute of Indiana, see ante, § 513, note. s Fischli V. Fischli, 1 Blackf. 360 ; McKinney v. McKinney, cited 1 Blackf. 363. For later Indiana decisions, see Rice v. Eice, 6 Ind. 100; Green v. Green, 7 Ind. 113. * Richardson v. Wilson, 8 Yerg. 67. But see D'Arusmont v. D'Arusmont, 14 Law Reporter, 311, 8 West. Law Jour. 548. And see ante, § 381, 382. [414] CHAP. XXIX.] DIVISION OF PEOPERTY. § 518 right and proper." And it is held, under this statute, that, on a divorce in favor of the wife, tlie court has power to set off to lier a part of the husband's real estate, to be held by her in fee-simple.^ § 517. There is a Georgia case in which a consideration of a different nature from what we have discussed, came up to influence the tribunal. The husband and wife had sepa- rated by mutual agreement, and she had taken back the property which she had brought to the marriage, being about one sixth of the whole property ; afterward, the husband pro- ceeded against her as the guilty party in a suit for divorce ; and, on a question pendente lite, this her former property wliich she had taken back was confirmed to her, and an additional sum was given her to meet tlie expense of the litigation, but she was allowed nothing further for temporary alimony. Said Lumpkin, J. : " When the separation by agreement took place, the wife was content to take back the property she brought into the marriage. She deemed this enough for her maintenance, and we leave her to abide by it. .... But she did not, perhaps, anticipate a suit for a di- vorce ; and this is an additional expense that she has been forced to incur by the husband." ^ § 518. In Georgia also, where the husband, who was libellant in a divorce case, had rendered a schedule of his property under oath, and obtained a verdict, it was held, that creditors have the first claim to the property, and after the payment of all just debts, the jury may award a portion of it to either the libellant, the respondent, or th6 issue of the mar- riage, or to all. And it was observed, that the term " either " in the statute, may mean " each " or " both." ^ In Delaware it was held, that, where land is assigned to the wife upon a decree of divorce, she is entitled to the rents from the confir- 1 Jolly n. Jolly, 1 Clarke, Iowa, 9. As to New Hampshire, see Whittier v. Whittier, U Fost. N. H. 452. 2 Killiam v. Killiam, 25 Ga. 186, 188. » Jackson v. Stewart, 20 Ga. 120. [415] § 519 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. mation of the commissioner's return.^ The New Hampshire statute is in the following words : " Upon any decree of nul- lity or divorce, the court may restore to the wife all or any part of her lands, tenements, or hereditaments, and may as- sign to her such part of the real or personal estate of her husband, or order him to pay such sum of money, as may be deemed just and expedient." And it is held, that, under this statute, the assignment to the wife of a part of the husband's estate upon a divorce vests the title in her, the same as the assignment of a bankrupt's estate vests it in the assignee, and if the property assigned to her is a right in action, she may maintain the action in her own name.^ § 519. Some other points will appear in the cases cited in a note,^ but it is not thought best to extend the discussion further. The views which the author expressed in the chapter before the last are so full as to render unnecessary any gen- eral disquisitions in this chapter. 1 Spicer v. Spicer, 5 Harring. Del. 106. 2 Whittier v. Whittier, 11 Post. N. H. 452. 8 Sheafe v. Sheafe, 40 N. H. 516 ; Logan v. Logan, 2 B. Monr. 142 ; Stewartson ti. Stewartson, 15 111. 145 ; Bergen v. Bergen, 22 111. 187 ; Chapman v. Chapman, 13 Ind. 396 ; Jeans v. Jeans, 2 Harring. Del. 142 ; Elmore v. Elmore, 10 Cal. 224 ; Kourke v. Eourke, 8 Ind. 427 ; Bacon v. Bacon, 2 Swab. & T. 86 ; Thomas v. Thomas, 2 Swab. & T. 89 ; Boynton v. Boynton, 2 Swab. & T. 275 ; Bent v. Bent, 2 Swab. & T. 392. [416] CHAPTER XXX, THE RESTORATION TO THE WIPE OP HER PROPERTY. § 520 [630] . In some of the States, the court is expressly authorized by statute to reinvest in the wife, on granting her a divorce, the property which came to the husband in conse- quence of the marriage.^ Thus in Virginia, the tribunal which decrees a separation from bed and board may, among other things, " restore to the injured party, as far as practica- ble, the rights of property conferred by the marriage On the other." Under this provision, the Court of Appeals, revers- ing the decision of the court below, held, that where, before the bringing of the wife's petition on which a decree of di- vorce from bed and board for the husband's adultery was pronounced, some slaves which were hers before the mar- riage were attached by his creditors, — she had no right, as against those creditors, to have this property restored to her. The court might order a sale of as many of the slaves as, with the hire which had accrued during the pendency of the suit, would be sufficient to pay the debts due the attaching creditors, with the costs ; and secure to the wife the rest of them, or the funds arising from their hire or sale, as far as practicable, having due regard to the rights of others.^ § 521 [631]. In Delaware it was proposed, on the hearing of a wife's application for divorce, to inquire into waste com- mitted by the husband on her land, both before and since the 1 As to Maryland, see Tayman v. Tayman, 2 Md. Ch. 393. ^ Jennings v. Montague, 2 Grat. 350. Por further points, see Sharp v. Sharp, 2 Snead, 496 ; Whittier v. Whittier, 11 Fost. N. H. 452. VOL. II. 27 [ 417 ] § 522 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. filing of the bill. To this the counsel for the husband ob- jected, on the ground, that, by statute, her real estate was to be restored of course ; and, this counsel said, her allowance above that was to be in personal property. The court how- ever received evidence of the waste committed after, not before, the commencement of the suit, observing : " The hus- band would be entitled to all the proper issues from the wife's land during the marriage ; but if he has, since the filing of the petition, wantonly wasted the inheritance, the court can- not restore to her all her lands, and make a ' reasonable al- lowance out of the husband's real and personal estate,' without inquiring into and compensating her for this de- struction."^ Yet we have seen,^ that courts in awarding alimony to the wife, look, among other things, to the conduct of the parties toward each other during the cohabitation, and to the amount and value of the property the wife brought the husband. In this aspect, by analogy to the rules relating to alimony, it would seem to be a material fact, which should enter into the determination of the wife's allowance in the circumstances just stated, that his fund of personal property had been increased in consequence of waste committed on her real estate, before, as well as after, the commencement of her suit. § 522. In Massachusetts a statute having provided, that, " whenever a decree of divorce from bed and board shall be made, because of the cruelty of the husband, the wife, if there be no issue living at the time of the divorce, shall be restored to all her lands, tenements, and hereditaments, and be allowed," &c. ; and a decree in favor of *a wife under this statute having directed, " that she should be restored to all her lands, tenements, and hereditaments," — the statute and decree were together held to give to tlie wife the right to the immediate occupancy of lands belonging to her, which her husband had conveyed away by his deed ; and she was per- 1 Grubb V. Grubb, 1 Harring. Del. 516. = Ante, § 457. [418] CHAP. XXX.] EESTOBATION TO WIFE OF HER PEOPEETY. § 524 mitted to recover possession of them by writ, against his grantee.^ § 523. The before-mentioned Massachusetts statute did not authorize the restoration to the wife of the personal prop- erty which she brought to the marriage ; and the Massa- chusetts courts did not have this authority, as to personal property, until it was given them by Stat. 1828, c. 65.^ But there were cases in which this authority had been exercised before the latter statute was enacted ; and, in one instance, a woman divorced brought her suit against her husband "for certain articles," says the report, " which were her property at the time [of the marriage] , but of which a part had been consumed in the family of the plaintiff and the defendant, and the residue sold before the divorce." The decree of the court on which this action was founded was, " that all the real and personal property which came to the defendant [in the divorce suit] by his marriage with the plaintiff [in the divorce suit] should be restored to her." The court, without advert- ing to the fact that even the decree itself was unauthorized as regards the personal property, held that it did not include such of this species of property as had been sold or consumed previous to the divorce.^ § 524. We shall see, in the proper place, that a divorce from the bond of matrimony entitles the wife, at the common law, of its own force, and without any order of the court, to be put immediately into the possession of her real estate. There is a New York case in which a receiver of the rents and profits of certain real estate belonging to the wife had been appointed, then the wife brought against the husband her bill to dissolve the marriage by reason of his adultery ; and, on her application, the receiver was ordered to pay into court, to abide the result of the divorce suit, the moneys ^ Kriger v. Day, 2 Pick. 316. 2 Dean v. Richmond, 5 Pick. 461 ; Page ». Estes, 19 Pick. 269. 8 Dean v. Dean, 5 Pick. 428. [419] § 524 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. which accrued from these lands. Said Chancellor Wal- worth : " If he [the husband] has been guilty of adultery, as she alleges in her bill, he has forfeited his right to the rents and profits of her estate, by this violation of the marriage contract. And if she succeeds in obtaining a decree for a divorce, she will be entitled, as a matter of course, to her real estate ; and to the rents and profits thereof from the time of filing the bill, so far as he has not actually reduced the same to his possession." ^ 1 Vincent v. Parker, 7 Paige, 65, 66. See, as to the Kentucky law on the sub- ject of this chapter, Williams v. Goooh, 3 Met. Ky. 486. [420] CHAPTER XXXI. THE CUSTODY AND SUPPORT OF CHILDREN. Sect. 52S. Introduction. 526-544. The~Ciistody as connected with the Divoroe Suit. 545-551. The Custody where there is no Divorce. 652-559. Support of the Children under Decree of Court. § 525. The former editions of this work contained a chap- ter upon the custody and support of the children of the mar- riage, as connected with, or dependent upon, the suit for divorce. It becomes necessary, in the enlargement of the scope of the entire work, to enlarge somewhat the scope of this chapter. The chapter will, therefore, contain some dis- cussion of the subject as it relates to the custody where the parties are living separate without divorce. We shall divide what is to be said as follows : I. The Custody as connected with the Divorce Suit ; II. The Custody where there is no Divorce ; III. The Support of the Children under Decree of Court. I. The Custody as connected with the Divorce Suit. § 526 [631 a] . The subject of the custody of the children during the proceedings for a divorce, and after their termina- tion, did not in England until recently belong properly to the divorce law; the Ecclesiastical Courts never having had jurisdiction over this matter. But by the statute establishing the present Matrimonial Court, Stat. 20 & 21 Vict. c. 85, § 35, it was provided, thatj " in any suit or other proceedings for obtaining a judicial separation or a decree of nullity of [421j § 527 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. marriage, and on any petition for dissolving a marriage, the court may, from time to time, before making its final decree, make such interim orders, and may make such provision in the final decree, as it may deem just and proper with respect to the custody, maintenance, and education of the children, the marriage of whose parents is the subject of such suit or other proceeding ; and may, if it shall think fit, direct proper proceedings to be taken for placing such children under the protection of the Court of Chancery." Afterward, by Stat. 22 & 23 Vict. c. 61, § 4, it was further provided, that " the court, after a final decree of judicial separation, nullity of marriage, or dissolution of marriage, may upon application (T3y petition) for this purpose make, from time to time, all such orders and provisions with respect to the custody, maintenance, and education of the children, the marriage of whose parents was the subject of the decree, or for placing such children under the protection of the Court of Chancery, as might have been made by such final decree or by interim orders in case the proceedings for obtaining such decree were still pending" ; — one of the objects of this latter provision being to enable the judge to vary his decree respecting the custody, from time to time, after the main cause is disposed of, as altered cir- cumstances may require.^ In the United States, the divorce statutes generally give to the tribunal hearing a divorce cause power to direct, during its pendency and afterward, with which of the parties, or with wliat other person, the children shall be, and to make provision out of the husband's estate for their maintenance. § 527 [632] . The father is, at common law, in some sense, the guardian of his minor children, though in precisely what sense the books seem not to be agreed.^ When he dies. 1 That this could not be done under the former of the two acts, see Eobotham c. Robothara, 1 Swab. & T. 190 ; Seymour v. Seymour, 1 Swab. & T. 332 ; Curtis V. Curtis, 1 Swab. & T. 192; Suggate v. Suggate, 1 Swab. & T. 492. 2 Macpherson on Infants, 52-62; Miles v. Boyden, 3 Picls. 213 ; Kenningham V. McLaughlin, 3 T. B. Monr. 30 ; Forsyth v. Kreakbaum, 7 T. B. Monr. 93 ; [422] CHAP. XXXI.] CUSTODY AND SUPPORT OF CHILDREN. § 528 the guardianship devolves, not to its full extent, on the mother ; ^ but partly so, and whatever guardianship is hers, it has been held, perhaps not justly, continues in her, though slie is married a second time.^ Concerning the latter point, a difficulty arises from the fact, well settled in law, that the second husband is not under obligation to support the wife's children by a former husband, while also he is entitled neither to their services nor their society.^ And indeed other au- thority recognizes the doctrine, that the second marriage deprives, to some extent at least, the mother of her right of custody over her children by the former marriage.* § 528 [632]. The father is likewise under a strong moral obligation, which the law recognizes, to provide sustenance for his minor children ; to whose earnings he is entitled, while he maintains them, but no longer.^ At the common law he may assign to another their services during minority ; ® Isaacs . Wright, 9 Lond. Law Jour. 158. See also Hunt v. Thompson, 3 Scam. 179. 6 2 Kent Com. 191 -193 ; Van Valkinburg v. Watson, 13 Johns. 480 ; Stanton t>. Willson, 3 Day, 37 ; Hillsboro' v. Deering, 4 N. H. 86, 95 ; Pidgin v. Cram, 8 N. S. 350 ; Owen u. White, 5 Port. 435. And see Addison v. Bowie, 2 Bland, 606 ; Newport v. Cook, 2 Ashm. 332 ; Dupont v. Johnson, 1 Bailey Ch. 274 ; Myers v. Myers, 2 McCord Ch. 214, 264 ; Cruger v. Heyward, 2 Des. 94 ; Cowls v. Cowls, 3 Gilman, 435 ; Dawes v. Howard, 4 Mass. 97 ; Smith v. Young, 2 Dev. & Bat. [424] CHAP. XXXI.] CUSTODY AND SUPPORT OF CHILDREN. § 529 purposes of this chapter are not such as to demand of us the careful examination necessary to draw the line clearly in the midst of this conflict of opinion. Yet in reason, though the father might in law be compelled to support his cliildren, by a process instituted for that purpose, still, to allow the child to pledge the father's credit against the father's consent, would be to encourage disobedience in one not arrived to years of discretion. On the other hand, the wife has reached her years of discretion, while, though in a sense she is to be obedient to her husband, she is not to be so in precisely the same sense as a minor child. At the same time, though the authority of the child thus to bind the parent may not be commensurate with that of the wife to bind the husband, the law may give to a person relieving a suffering child the right, in some circumstances, to collect the bill of the father. Where, of course, the parent neither refuses nor neglects to provide the child with necessaries, no third person can furnish them at the parent's charge.^ § 529 [633]. There is also a sense in which, prima facie, . the father is entitled, not only as against the rest of the world,^ but as against the mother likewise, if the parents are living apart, to the custody of the children, of both sexes, during the entire period of their minority. But this right is not an absolute one ; and it is usually made to yield when the good of the child, which, especially according to the modern Amer- ican decisions, is the chief matter to be regarded, requires it 26; Collins ». Srunker, I U. S. Mo. Law Mag. 114. "By the common law of Massachusetts, and without reference to any statute, a father, if of sufficient ability, is as much bound to support and provide for his infant children, in sickness and in health, as a husband is bound by the same law and by the common law of England to support and provide for his wife.'' Metcalf, J., in Dennis v. Clark, 2 Cush. 347, 352. See further, as to Massachusetts, Hancock v. Merrick, 10 Cush. 41. 1 Eitel V. Walter, 2 Bradf. 287. 2 Sumner v. Sebec, 3 Greenl. 223 ; Commonwealth v. Nutt, 1 Browne, Pa. 143 ; Kiffin V. Kiffin, cited 1 P. Wms. 697, 705 ; Macpherson, on Infants, 143 ; Allen v. Coster, 1 Beav. 202 ; Wellesley v. Wellesley, 2 Bligh, n. ». 124 ; Whitfield v. Hales, 12 Ves. 492, and note to Sumner's ed. [425] § 529 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. should yield. ^ If a father turns his child out upon the world without caring for him, he relinquishes thereby his parental right to the custody of the person of the child, whom he thus absolves also from the duty of filial obedience.^ And the law may require a father to support his children, after he has for- feited his right to their control or custody.^ But this subject belongs to our next sub-title, rather than this ; and it is men- tioned here only by way of introduction to the matter now directly in hand.* 1 The State v. Smith, 6 Greenl. 462 ; United States v. Green, 3 Mason, 482 ; Matter of Kottman, 2 Hill, S. C. 363 ; People v. Mercein, 3 Hill, N. Y. 399, 8 Paige, 47 ; The State v. Paine, 4 Humph. 523 ; Steele v. Thacher, Ware, 91 ; Peo- ple V. Chegaray, 18 Wend. 637 ; People v. , 19 Wend. 16 ; Matter of Toulmin, R. M. Charl. 489 ; Mercein v. People, 25 Wend. 64 ; The State v. Clover, 1 Har- rison, 419 ; Rex v. Greenhill, 6 Nev. & M. 244 ; De Manneville v. De Manneville, 10 Ves. 52, and note to Sumner's ed. ; Ball v. Ball, 2 Sim. 35 ; Jaclcson v. Hawkey, Jacob, 264 ; 2 Kent Com. 194 ; Wood v. Wood, 3 Ala. 756 ; The State v. King, 1 Ga. Decis. 93 ; Rex v. Delaval, 3 Bur. 1434, I4S6 ; Wellesley v. Beaufort, 2 Russ. 1, affirmed in the H. of Lords, 1 Dow & CI. 152 ; Rex v. De Manneville, 5 East, 221 ; Rex v. Moseley, 5 East, 224, note ; Holcombe's Eq. 259 ; Common- wealth V. Maxwell, 6 Law Reporter, 214; Ex parte Schumpert, 6 Rich. 344;- Ahrenfeldt u.'Ahrenfeldt, 1 Hoffman, 497. And see a very recent English case, of great interest, in which the Vice-Chancellor says : " When the court refuses to give possession of his children to the father, it is the paramount duty of the court to do so for the protection of the children themselves ; and the court will perform that duty if the father has so conducted himself, as that it will not be for the benefit of the infants that they should be delivered to him, — or if their being with him will affect their happiness, — or if they cannot associate with him without moral con-^ lamination, — or if, because they associate with him, other persons will shun their society." Anonymous, 2 Sim. n. s. 54, 11 Eng. L. & Eq. 281,290. And see, further, The State v. Stigall, 2 Zab. 286 ; In re Hakewell, 22 Eng. L. & Eq. 395 ; People V. Porter, 1 Duer, 709 ; Tarkington v. The State, 1 Ind. 171 ; Lindsey*». Lindsey, 14 Ga. 657 ; In re Hakewell, 15 Eng. L. & Eq. 599 ; The State v. Scott, 10 Post. N. H. 274 ; Gishwiler, v. Dodez, 4 Ohio State, 615. == Stansbury v. Bertron, 7 Watts & S. 362. And see Shelley v. Westbrooke, Jacob, 266 ; Wellesley v. Beaufort, 2 Russ. 1 ; Mytton v. Holyoake, cited Mac- pherson on Infants, 149 ; Clinton v. York, 26 Maine, 167. ' Maepherson on Infants, 142 ; Cowls v. Cowls, 3 Gilman, 435. * The reader will find the English authorities collected in Shelford Mar. & Div. 677 et seq. ; in Forsyth on the Custody of Infants ; and, in part, in the present chap- ter under our next sub-title. I have not in this section undertaken to state the doctrines with more than general accuracy ; neither have I thought it well to trace them into the numerous subtle and technical distinctions by which their general equity is sometimes made to vanish from practical observation. [426] CHAP. XXXI.] CUSTODY AND SUPPORT OF CHILDREN. § 531 § 530 [634]. As already observed,^ this matter of the cus- tody of children, during and after a suit for divorce between the parents, is to be regulated, in the States generally of this country, by the court hearing the divorce cause, according to its discretion. The statutes provide in substance, that, dur- ing the pendency of such a suit, and also on the final decree for a divorce or separation, the court may make any proper order concerning the custody, care, education, and mainten- ance of the minor children of the marriage ; which order may be modified or changed from time to time, like a decree for alimony.^ Probably both the intent and effect of every such statutory provision is to abrogate, in cases to which it is ap- plicable, any superior common-law right the father has, oVer the mother, to the custody of their mutual offspring. " I look upon this statute," observes Hoffman, Assistant V. C, " es- pecially when a decree has been pronounced for a separation, as neutralizing the rule of the common law ; as annulling the superiority of the patria potestas, and placing the parents on an equality as to the future custody of the children, even if it does not create a presumption in favor of the wife," where she is the injured party. " And this is the case, because no decree for a separation can be pronounced, without evidence of such a violation of duty in one relation of life as implies a probability of the disregard of every other." ^ § 531 [635]. We have observed also,* that the English ecclesiastical tribunals never had the jurisdiction thus com- mitted to our courts, on the hearing of divorce causes. In England, while divorce causes were heard in those courts, the powers now under consideration were exercised, imper- 1 Ante, § 526. 2 Cook V. Cook, 1 Barb. Ch. 639 ; Codd v. Codd, 2 Johns. Ch. 141 ; Laurie v. Laurie, 9 Paige, 234; Barrere v. Barrere, 4 Johns. Ch. 187; Hansford j;. Hans- ford, 10 Ala. 561 ; Paige on Div. 302 ; Collins v. Collins, 2 Paige, 9. 8 Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 497. So under the- English Stats. 20 & 21 Vict. c. 85, § 35, it was by Sir C. Creswell observed : " The application here is not to enforce the common-law rule, but to the discretion of the court." Spratt V. Spratt, 1 Swab. & T. 215. And see post, § 638. * Ante, 4 526. [427] § 532 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. fectly and partially, by the equity and common-law tribunals of the country ; the Bcclesiastical Courts going merely to the extent, in some instances, where, for very clear reasons the mother should be permitted to retain the child, of refusing in the award of alimony to consider, as diminishing the amount, that the husband will have the child to support.^ But there is a question, whether, when the jurisdiction over a cause of divorce is committed to a court of equity, that court may not, without further statutory aid, determine in the divorce suit the matter of the custody of the children. Those equity tri- bunals which have granted alimony without authority from express statutes,^ have exercised, in the same suit, this juris- diction also.^ So where there were two statutes, " the one providing for the disposition of the children in all cases of separation, when neither party shall obtain a divorce ; tlie other, investing the Court of Chancery with power, in cases of separation, to determine the same questions with respect to the children, upon the petition of either party," — it was decided, that this matter might be adjudicated in the divorce suit.* § .532 [636] . I'he courts have not laid down exact rules to guide their discretion concerning which of the parties, on a divorce, shall be inl^usted with the custody of the children ; probably the subject admits not of such rules. The leading doctrine is to consult the good of the children, rather than the gratification of the parents.^ Therefore an agreement on this subject, between the parents, before the decree of divorce is rendered, can have no controlling influence ; for they are not the persons whose interests are primarily to be con- sulted.® The proposition is generally true, that one who 1 Greenhill v. Greenhill, 1 Curt. Ec. 462, 6 Eng. Ec. 376, 378 ; Smith v. Smith, 2 Phillim. 152, 1 Eng. Ec. 220 ; ante, § 465. 2 Ante, § 354 et seq. ' Williams v. Williams, 4 Des. 183 ; Anonymous, 4 Des. 94 ; Prather v. Pra- ther, 4 Des. 33. * Hansford v. Hansford, 10 Ala. 561, 563. 6 Barrere v. Barrere, 4 Johns. Ch. 187 ; Cook v. Cook, 1 Barb. Ch. 639 ; Ahren- feldt V. Ahrenfeldt, I Hoffman, 497. And see Trimble v. Trimble, 15 Texas, 18. 6 Cook V. Cook, 1 Barb. Ch. 639. And see People v. Mercein, 3 Hill, N. Y. 399. [428] .CHAP. XXXL] custody AND SUPPORT OF CHILDREN. § 533 has conducted either well or ill in a particular domestic rela- tion, will conduct the same in another ; and so, as a general practice, the courts give the custody to the innocent party ; because, with such party, the children will be more likely to be cared for properly.^ § 538 [637]. The influence of example, especially the ex- ample of parents, is controlling, over the minds of young children ; ^ so when a husband had introduced a mistress inio his house, under the observation of his children, the court gave the custody of the daughters to the wife, — not includ- ing the sons in the order.^ It has been considered, that a single act of adultery would not of itself exclude a husband, absolutely and forever, from the care of his infant children, if the court should be satisfied he had abandoned his licen- tious intercourse, becoming thoroughly reformed.* And in Pennsylvania it has been held, that after a divorce -from the bond of matrimony has been granted the husband, on ac- count of the wife's adultery, it is not a matter of course for the court, on a writ of habeas corpus, to remove the children from her custody into his, even though she is living in adul- tery. The court will look into the circumstances, and make such order as the good of the children requires. And, in a 1 Bedell v. Bedell, 1 Johns. Ch. 604 ; Kingsberry v. Kingsberry, 3 Hairing. Del. 8 ; Codd V. Codd, 2 Johns. Ch. 141 ; Jeans v. Jeans, 2 Harring. Del. 142, where there were two daughters and one son, and the court gave to the plaintiff wife the custody of the daughters only ; Clark w. Clark, Wright, 225 ; Hansford v. Hansford, 10 Ala. 561 ; Bascom ». Bascom, Wright, 632 ; People v. Mercein, 8 Paige, 47 ; Kichmond v. Richmond, 1 Green Ch. 90 ; Cook v. Cook, 1 Barb. Ch. 639. 2 See Barrere v. Barrere, 4 Johns. Ch. 187, 197 ; Anonymous, 2 Sim. N. s. 54, 11 Eng. L. &Eq. 281. 8 Williams v. Williams, 4 Des. 183. This was a suit for alimony only, not for divorce. Probably on decreeing a divorce in such a case, the courts generally would commit the care of the sons as well as the daughters to the mother. Where parties had lived together unhappily, and on the whole the court saw proper to grant alimony to the wife, who, on account of matrimonial differences, had left her husband, he was permitted to have the nurture and education of the child, a daughter, under his own control ; she to have access to her. Anonymous, 4 Des. 94, 102. * Cook V. Cook, 1 Barb. Ch. 639. [ 429 ] § 534 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK Y. case of this sort, the court refused at first to take the children from the mother;^ but, ou a subsequent application, three years having been added to their age, and the father's cir- cumstances having slightly changed, they were committed to him.^ So the Ohio court, on decreeing a divorce for a single act of adultery by the wife, where there was hope of her reformation, committed the younger child to her, giving the custody of the other to the father.^ The like order was made in a case of not very flagrant desertion by the wife ; who was to be permitted, also, intercourse with such of the children as were intrusted to the father's care.* § 534 [638]. Sometimes a person not altogether worthy to have the charge of children obtains a divorce from an- other, also unworthy ; and then the court may be compelled to choose between parties neither of whom would be selected but from • necessity. Thus, where a divorce from the bond of matrimony was granted to the husband for the wife's adul- tery, the custody of the child was intrusted to him ; although an ill-tempered man, who had abused his wife by whom he had been forgiven ; and altjiough he had killed, in cold blood, and " in a manner both cruel and inhuman," the person with whom the adultery was committed.^ So, on the other hand, the court may have to choose between two persons against neither of whom there is any clear objection, as respects the interests of the children. In a New York case, which bore somewhat this complexion, it was intimated by the Assistant Vice-Chancellor, who pronounced, at the suit of the wife, a decree separating her from her husband on account of his desertion and neglect to provide for her, that perhaps, under the statute, the children might be made wards of court, with proper guardians appointed, and the right of access of the ' Commonwealth v. Addicks, 5 Binn. 520. '^ Commonwealth v. Addicks, 2 S. & R. 174. In Talentino t. Valentine, 4 Halst. Ch. 219, the custody of a child was at first given to the mother on account of its tender years, and afterward transferred to the father. 8 Dailey v. Dailey, Wright, 514, 517. ' Leavitt ». Leavitt, Wright, 719. 6 J. r. C. V. M. E., his wife, 6 Rob. La. 135. [430] CHAP. XXXI.J CUSTODY AND SUPPORT OF CHILDREN. § 536 parents to them regulated. He proposed, however, to make an order with the husband's concurrence, the effect of which would be to give a sort of equal custody to the parties. But the husband refused to concur, though anxious to have the sole care of the children, and so they were committed to the mother.^ § 535. The statutes under which the present English Matrimonial Court proceeds, as respects the custody of the children of parties litigant, and of parties who have ob- tained a divorce, were mentioned at length in one of our preceding sections.^ And there have been adjudged, under them, some points to which our attention may be profitably directed. In one case it was held, that, on an application concerning the custody, in a divorce case, pendente lite, the court will not receive affidavits respecting such matters as are involved in the yet undetermined suit between the par- ents, though it will look into the other matters, which, on general principles, should influence the decision. " It would be most mischievous," said the court, " to prejudice, by discus- sion on the present motion, points which might hereafter be in issue before the jury." And it was added " that the duty of the court was to look at all the actual circumstances of. the present application : the age of children, the position in which they find themselves in relation to other members of the family, the fact that a suit is pending between the par- ents in which such and such charges are made on both sides ; but not to attempt to ascertain the truth or falsehood of the charges." ^ § 536. The interim custod^^ under the statute is not always or necessarily given to either of the parents ; but, whoever has the custody, both the parents are generally permitted access to them.* In like manner, where the question comes 1 Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 497. " Ante, § 526. 3 Ryder v. Ryder, 2 Swab. & T. 225, 227. * Boynton v. Boynton, 1 Swab. & T. 324 ; Curtis v. Curtis, 1 Swab. & T. 75, 77. [431] § 537 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. up, upon the termination of the case, as to the permanent cus- tody, the court seems pretty generally inclined to permit the parent deprived of the custody for the purpose of giving it to the other parent, to have access to the children at such times, and under such regulations, as the decree of the court specifies.^ Under the statute, the court has power, pending the suit, to make simply an order for access, in favor of one of the parties, where this is the only thing asked for ; but, in one case, the Judge Ordinary, on the facts, declined to make such an order, and the whole court refused to inter- fere.^ Likewise, where a divorce from the bond of matrimony has been pronounced for the adultery of the wife, she cannot have the custody of the children, or any order of access to them ; but the reason in law is, that, by Stat. 2 & 3 Vict, c. 54, which empowers the chancery tribunals to give to mothers access to their infant children, it is in § 4 enacted, " That no order shall be made by virtue of this Act whereby any mother against whom adultery shall be established, by judgment in an action for criminal conversation at a suit of her husband, or by the sentence of an Ecclesiastical Court, shall have the custody of any infant, or access to any infant." And Sir C. Cresswell observed : " I think that that enact- _ ment establishes a precedent that I ought to follow, and that where a wife has been found guilty of adultery, I ought not to order that she have access to her children." ^ § 537. In one case, on a decree for a judicial separation in favor of the wife for the husband's cruelty, the court, Sir 0. Cresswell, gave the custody of the children to the wife, observing : " The conclusion to which I have arrived is, that the wife, as an injured party, had good ground for seeking a judicial separation, and that she ought not to obtain it at the expense of losing the society of her children ; that I am ' Suggate V. Suggate, 1 Swab. & T. 492 ; Boynton v. Boynton, 2 Swab. & T. 27.5, 277 ; Marsh v. Marsh, 1 Swab. & T. 312. ^ Thompson v. Thompson, 2 Swab. & T. 402. 8 Clout V. Clout, 2 Swab. & T. 391 ; s. F. Bent v. Bent, 2 Swab. & T. 392. [432] CHAP. XXXI.] CUSTODY AND SUPPORT OF CmLDREN. § 538 not satisfied that her habits or conduct are such as to render her in any way unfit to have charge of them ; that, with respect to the respondent, if he is deprived of the society of his children, that is the consequence of his own misconduct. .... I order, tliat they be kept in her custody until they respectively attain the age of fourteen years ; the father to be kept informed from time to time of the place or places where the children are residing, and to have access to them once a week for two hours, between 10 a. m. and 4 p. m., in the presence of some person to be appointed for that purpose by the petitioner." ^ § 538. In another case this learned person employed still other language from which useful hints may come to us respecting the interpretation of our own statutes on this subject, though the matter of discussion related to the words "just and proper" in the English enactment. "This," he said, " is not a general power of dealing with the custody of children ; it exists only where there is a suit for obtaining a judicial separation, a decree of nullity, or dissolution of a marriage. I apprehend, therefore, that the words 'just and proper' are to be construed with reference to the circum- stances affecting the suit, and not merely with reference to the rules by which courts of equity and common law have been governed in questions respecting the custody of infants ; in short, that it was the intention of the Legislature to give a discretionary power to the court exceeding that which had been previously exercised by courts of law aud equity I think it would not be just to compel the unoffending mother to resort to any place where the father might choose to place them — perchance to his own house — for the purpose of seeing them. If he is put to any trouble about going to see them, that will arise from his own misconduct; and, there- fore, although it does not appear that he was ever guilty of any cruelty or unkindness to his children, and there may not at present be any fear of their being contaminated by his 1 Suggate V. Suggate, 1 Swab. & T. 492, 496, 497. VOL. II. 28 [ 433 ] § 639 ACCOMPANIMENT^ OF MAIN ISSUE. [BOOK V. evil example, I think it just and proper that they should re- main under the control of their mother so long as she has the means of giving them a suitable education, and the incli- nation to do so. I therefore make it part of my decree, that the children shall remain in the custody and under the con- trol of their mother, the petitioner, until the age of fourteen, when they may by law exercise their own choice in the matter, provided she keeps and maintains at school such of them as are of a fit age to be sent there, without subjecting her husband to expense. The husband always to have in- formation of the schools at which they are placed, and to have the same access to them there as is allowed to the parents of other children at the same schools. As long as any one of them is kept by its mother at her home, as being too young to be sent to school, the respondent to have access to it there once a week at any reasonable hour." ^ § 539. In the form of the Petition for Divorce, adopted by the present English Matrimonial Court, and promulgated with the Rules and Orders of the court, the following words occur : " That your petitioner and his said wife have had issue of their said marriage three children, to wit, one son and two daughters " ; and a recent English writer says, that the ages of the children should be mentioned in the petition,^ though nothing appears of the ages in the form given by the court. The same writer * observes : " Where a decree of judicial separation or dissolution of marriage has been pronounced at the suit of the wife, application may be made at once for further orders respecting the custody of or access to the chil- dren, if they are already in the custody of the petitioner or respondent by order of the court. If no interim orders have been made respecting them, the application must be on peti- tion.* .... The petition must be filed and notice served on 1 Marsh v. Marsh, 1 Swab. & T. 312, 316, 317 ; concurred in by the whole coart in Boynton v. Boynton, 2 Swab. & T. 275, 277. ' Browning Div. Pract. Ill, 136. » lb. 91, 92. * Anthony v. Anthony, 30 Law J. N. 8. Mat. 208. [434] CHAP. XXXI.] CUSTODY AND SUPPORT OF CHILDREN. § 541 the respondent, that the petitioner will on such a day pray the judgment of the court on the petition.^ But if a prayer for the custody of the children has been embodied in the pe- tition for judicial separation or dissolution of marriage, and such petition has been served on the respondent, and no ap- pearance has been entered, further notice of the application is not necessary ; but the court will, on making its decree, give the custody of the children to tlie petitioner." ^ § 540. We have already seen, that the petition or libel or bill for divorce need make no mention of the matter of ali- mony ; ^ and the writer is persuaded, that, as a question of correct pleading, on general principles, the same is true of the children of the marriage, whose custody is sought by one or the other of the parties. Yet as there will not often be a con- test upon the fact of the existence and ages of the children, while almost of course the amount if not the existence of the faculties will be contested, and as in the one case the matter can be set out in a few words while in the other it requires many words, not to speak of still other reasons, that form of the plaintiff's pleading which mentions the children and tlieir ages is, on the whole, to be approved in practice, or, at least, it is to be deemed well enough. The writer is able to say, that the American libel not unfrequently contains this alle- gation with respect to children. There are, however, no adjudications upon the point. § 541 [641]. There are on this subject a few cases, Eng- lish and American, not cited to the foregoing sections ; but none of them contain matters of any particular importance, and it is not deemed best to encumber these pages further with cases now. The course of this department of legal learning is onward, and the author hopes to be able in some future edition, when further decisions are added to those we have, to present the whole subject in a more complete form than it I Stacey v. Stacey, 29 Law J. n. s. Mat. 63, 8 W. R. 341. ^ Wilkinson v. WilkinBon, 30 Law J. n. s. Mat. 200, note. ' Ante, § 486 et seq. [435] § 542 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. would be possible for him to give it here. Yet seeing the light to be gathered from the decisions is so feeble and un- certain, let us look a little at the matter in the light of those principles which lie inherent in the subject. While the parents are living together in harmony, nature has her demands in behalf of the children satisfied by the equal society, care, and control which necessarily they have in respect to the common offspring. And as nature always looks toward the future ; as all her arrangements, in every department of existence, concern primarily the to-be, rather than the is or the was ; so in an especial manner is it in her arrangements connected with the institution of marriage. The parents have already received those early impulses which are to carry them through life ; but the children await the intellectual and moral forces, which, imparted to them, are to determine their hereafter. Consequently the interests of the children are to overshadow all other interests, in that congregation of reasons and of facts whence the judge is to draw his decision of the ques- tion of their custody. And though, in a case of balanced interest in the children, the court should consider with which parent is the stronger parental claim ; yet, when the interest is not balanced, their own good should lead the decree fixing their custody. § 542 [642]. Suppose, in the first place, the interest of the children to be balanced. With which of the parents, in such a case, is the stronger parental claim ? Both united in giving being to the children ; both, each in his or her particular way, have nourished and supported them ; both have their affec- tions drawn toward the objects thus brought into existence, and thus nourished and supported. And nature knows no difference, in these respects, between the claims of the parents. The doctrine is familiar, that the common law, unamended by statutes or modern precedents, makes the father's rights paramount, under ordinary circumstances, to the mother's. In this doctrine, the common law wears somewhat the grim aspect put on in its early days by reason of its dwelling among baronial castles, in contact with feudal manners, tossed [436] CHAP. XXXI.] CUSTODY AND SUPPOET OF CHILDREN. § 543 in the storms, and torn in the outbursts, of half-civilized life. But a further consideration is, that the common law has in- trusted to the husband the property belonging to the married pair ; and, when the question of the custody of children has come before the common-law tribunals, it has usually come under circumstances in which the judge has had authority ^ simply to determine the custody, without power over the property whence the children were to be supported. And in such a case, plainly the child must ordinarily be put where its hand could reach the food necessary to sustain it, and the clothes to warm it, where also its foot could press the floor of the school to instruct it. The good of the child, in such a case, would thus ordinarily be best promoted with the father ; and, in the indistinct and half-erroneous language in which truth is often clothed, the expression, tliat the husband's claim is paramount to the wife's, was not unnatural ; neither was it unnatural that the courts, following precedent, should fol- low the letter of such a precedent, thus expressed, rather than its spirit. § 543 [643]. When one of the married parties leaves the other, such party leaves either rightfully or wrongfully. As- suming a cause for leaving to exist, it, according to the doc- trine laid down in our chapter in the first volume on Deser- tion,^ would entitle the party to obtain, on suit, a divorce from the other for the cause ; since, according to this doctrine, no desertion is justifiable in law unless cause for divorce exists. If cause for divorce does exist, then the deserting one, to avail himself of it, even in a suit concerning the custody of the children, must bring the divorce suit ; without which suit brought, the court could not assume the desertion to be with- out just cause. To this point, substantially, we have judicial authority.^ After suit brought, and the result of the litiga- tion ascertained, the court should consider the claims of the innocent party to be superior to those of the guilty. 1 Vol. I. 4 795 et seq. 2 Commonwealth v. Briggs, 16 Pick. 203. And see People v. Humphreys, 24 Barb. 521. See post, h 548. [437] § 546 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. § 544 [643 a]. Thus stands the question as between the parents. Looking at tlie interests of the children, we have the following views : During the very young years, especially in the case of girls, the mother can best take care of them, in ordinary circumstances. But in later years, they need the .sterner discipline of the father. Yet neither in the case of the younger children, nor in that of the older, are these prop- ositions to be carried to all lengths. The party who has behaved well in the marriage relation will be likely to behave well also in the parental ; therefore this party should usually have the care of the children. II. The Custody where there is no Divorce. § 545. The foregoing sections of the present chapter, though standing under the sub-title of The Custody as connected with the Divorce Suit, have in truth presented most of the leading doctrines connected also with the present sub-title. There are, on the other hand, some questions which would properly enough fall within the discussions of this sub-title, into which questions it will not be wise to enter, because of their particular and more intimate connection with depart- ments of the law foreign to the purposes of these volumes. § 646. The old common-law rule has been already men- tioned, that the father is to be deemed to have a claim supe- rior to the mother's, over the persons and to the custody of the minor children.^ But it has been mentioned also, that this is a claim which, like any other, he may forfeit, or bar him- self of, by his wrongful conduct, or his incapacity to execute well the trust. The right of the father likewise is subordi- 1 Ante, 5 529, 542 ; Rex v. De Manneville, 5 East, 221 ; Ex parte McLellan, 1 Dowl. P. C. 81 ; Rex v. Greenhill, 6 Nev. & M. 244, 4 Ad. & E. 624 ; Ball v. Ball, 2 Sim. 35 ; Ex parte Boaz, 31 Ala. 425 ; People v. Olmstead, 27 Barb. 9 ; The State v. Paine, 4 Humph. 523; Ex parte Hewitt, 11 Rich. 326; People v. Mercein, 3 Hill, N. Y. 399. [438] CHAP. XXxi.] CUSTODY AND SUPPORT OP CHILDEEN. § 548 nate to the interest of the public in the well-being of the child ; wherefore, for this reason, where the well-being of the child, in which the community is interested, requires, the custody of the child may be taken from the father.^ Some- times, therefore, the custody will be given to a third person, in preference either to the father or mother .^ § 547. The reader perceives, therefore, that, even at the common law, this question of the custody of children is a thing much within the discretion of the particular judge be- fore whom the particular matter is litigated. It would be interesting here to follow out the cases in their details, and see how, under different circumstances, the same judges have given the custody to one or the other of the married par- ties, as the circumstances in their view dictated ; and how, on the other hand, different judges under like circumstances, have decided differently. But this would occupy too much of our space ; so, therefore, let us direct attention to a few points, and thus close the present sub-title. § 548. It was mentioned a little way back,^ that, accord- ing to some views, when the question comes up as between husband and wife who are living apart, the court cannot inquire by whose fault the separation was brought about, for the purpose of showing a superior claim in the one innocent of the fault ; because, if there was such fault as the law could notice in this aspect of the question, the innocent party should show the fault in a suit brought against the other for a divorce. There are cases, however, which seem to proceed upon the contrary doctrine ; and, aside from this, the good or 1 Ex parte Bailey, 6 Dowl. P. C. 311 ; Rex v. Dobbyn, 4 Ad. & E. 644, note ; Rex V. Wilson, 4 Ad. & E. 645, note; Blisset's case, Lofft, 748; Whitfield ^. Hales, 12 Ves. 492 ; Lyons v. Blenkin, Jacob, 245 ; Wellesley v. Beaufort, 2 Russ. 1 ; Matter of Toulmin, R. M. Chart. 489 ; Bryan v. Bryan, 34 Ala. 516 ; People V. Chegaray, 18 Wend. 637 ; People v. , 19 Wend. 16 ; Nickols v. Giles, 2 Root, 461 ; The State v. Paine, 2 Humph. 523 ; United States v. Green, 3 Mason, 482. 2 Faulk V. Eanlk, 23 Texas, 653 ; Young v. The State, 15 Ind. 480. " Ante, § 543. [439] § 651 ACCOMPANIMENTS OF MAIN ISSUE. ' [BOOK V. ill conduct of the husband or the wife may be shown in so far as it operates to prove the fitness or want of fitness in this person to have the charge of the children.^ § 649. It may 'be well to enumerate a few considerations which the court sometimes takes into the account in deter- mining the custody ; they are, the wishes of the children ; ^ the health and ages of the children, and the fitness of the respective parents to have, as to these matters, the charge of them ; ^ an agreement of the parties, whether they be the respective parents as between themselves, or a parent on the one side and a stranger on the other side, respecting the cus- tody, and whether the agreement be valid in law, or, as an agreement, of no legal efficacy.* Other considerations will appear in earlier parts of this chapter. § 650. The father of a bastard child has no right, as father, to its custody ; the parental right, in this case, is with the mother.^ So, where the father of a legitimate child dies, the mother may, to a certain extent, and in preference to third persons, claim the custody.^ § 661. Some questions there are, connected with the pro- ceedings, as concerns the matter discussed in the present sub- 1 De Manneville v, De Manneville, 10 Ves. 52 ; People v. Olmstead, 27 Barb. 9 ; People ». Humphreys, 24 Barb. 521 ; Ex parte Schumpert, 6 Eich. 344 ; The State V. Stigall, 2 Zab. 286 ; Reg. v. Baxter, 2 U. C. Q. B. 370. 2 Commonwealth v. Hammond, 10 Pick. 274 ; Commonwealth v. Hamilton, 6 Mass. 273 ; People v. Pillow, I Sandf. 672 ; The State v. Stigall, 2 Zab. 286 ; People V. Porter, 1 Daer, 709 ; People v. Chegaray, 18 Wend. 637 ; The State v. Scott, 10 Fost. N. H. 274. 2 Meroein v. People, 25 Wend. 64. * Curtis V. Curtis, 5 Gray, 535 ; Faulk v. Faulk, 23 Texas, 653 ; Young e-. The State, 15 Ind. 480; Famsworth v. Richardson, 35 Maine, 267 ; Richardson u. Eichai-dson, 32 Maine, 560 ; Commonwealth v. Hammond, 10 Pick. 274 ; Com- monwealth ». Hamilton, 6 Mass. 273 ; Hutson ». Townsend, 6 Rich. Eq. 249 ; Mayne v. Baldwin, 1 Halst. Ch. 454 ; People v. Mercein, 3 Hill, N. Y. 399 ; The State V. Clover, 1 Harrison, 419. 6 Robaliua v. Armstrong, 15 Barb. 247. • Ante, § 527 ; People v. Wilcox, 22 Barb. 178. [440] CHAP. XXXI.] CUSTODY AND SUPPORT OF CHILDREN. § 553 title ; but, with a reference to a few cases in a note,^ it is deemed best the discussion should end here. III. The Support of the Children under Decree of Court. § 652 [640]. Generally the same statute which authorizes the court to assign, at its discretion, the care of the children to the mother, confers on it also the power to compel the father to furnish her with a fund for their support. And when they are thus committed to an injured wife, they are usually, if the husband is of sufficient ability, not to be left pecuniarily burdensome to her. The doctrine appears to be, that such an allowance will be made out of his estate as will fully maintain them, in a manner corresponding with his condition in life.^ § 553. The books do not contain such numbers of ad- judications, or such discussions of principles, as will enable the author to expand this topic further. We have already seen,^ that, in these cases, the decree of the court should distinguish between the sums paid to the wife for her own support, and those paid to her for the support of the children intrusted to her care. At the same time it is believed, that many American decrees may be found in which this matter has been neglected, and the whole of the allowance appears in the form of alimony to the wife. In a New Hampshire case the decree was so ; and, subsequently thereto, the divorced parties were again married ; then a petition was 1 The State v. Brearly, 2 Southard, 555 ; Mercein v. People, 25 Wend. 64 ; People V, Kling, 6 Barb. 366 ; The State v. Cheeseman, 2 Southard, 445 ; Llndsey V. Lindsey, 14 Ga. 657 ; People v. Chegaray, 18 Wend. 637 ; People v. Porter, 1 Duer, 709. 2 Richmond v. Richmond, 1 Green Ch. 90. And see Jeans v, Jeans, 2 Harring. Del. 142; Barrere ». Barrere, 4 Johns. Ch. 187, 197 ; Williams B.Williams, 4 Des. 183 ; Anonymous, 4 Des. 94 ; Bedell v. Bedell, 1 Johns. Ch. 604. 8 Ante, 5 466 ; Foote v. Foote, 22 HI. 425 ; Whieldou v. Whieldon, 2 Swab. & T. 388 ; Richmond v. Richmond, 1 Green Ch. 90. [441] § 555 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. filed in behalf of the children, praying that a portion of the property assigned as alimony should be placed in the hands of a trustee for their support. The court denied the prayer, Bell, J., observing: "It is said that this property was asked for by the wife, and decreed to her by the court, in part for the support and maintenance of the minor children of the parties. In a qualified sense, this statement may be correct. The wife may have asked more alimony, on account of the condition of her family depending upon her, and the court may have made her a more liberal allowance upon that account ; but it cannot be true that the court have awarded to the wife any property upon any implied trust for her chil- dren." 1 § 554. In a New Jersey case, the Chancellor made the following observations : " Prom the evidence now before the court, I incline to the opinion, that, if the daughter continues in health, the allowance for her support should cease when she attains the age of eighteen. I will hear an application on this ground from the father at the proper time. No bill is necessary for that purpose. The application may be made by petition." ^ § 555 [644] . If we look at this question of the support of children, on a decree of divorce, in the light of principle, we shall be led to the following views : When the court pro- nounces for a divorce, pursuant to the prayer of the wife, and gives her the custody of the children ; then, in respect to their support, the rule would apply to the husband, that no man shall profit by his own wrong, and, to the wife, the cor- responding rule, recognized by good sense, if not so formally received as the other among the maxims of the legal family, that no one shall sufier for doing right ; in pursuance of which, the husband should be charged with the full burden 1 Dow r. Dow, 38 N. H. 188, 190. " Snover v. Snorer, 2 Beasley, 261, 263. [442] CHAP. XXXI.] CUSTODY AND SUPPORT OF CHILDEEN. § 556 of maintaining the children committed to the wife's care. Yet if he were a poor man, and so the children would be obliged to labor in part for their support were the cohabita- tion continuing, this fact should be taken into the consid- eration ; indeed, he should take care of and educate his children, according to his ability and standing, as shown in those principles which relate to alimony, already brought under our review. At the same time, a wealthy father should never be compelled by a court to do what many wealthy fathers do voluntarily, lavish on the child money and the luxuries which money brings, till the promptings of its nature to do and to suffer, as every human being should do and suffer in this life if he would discharge to himself the duties which the Creator intended when placing man on the earth, are eaten out by the rust of inactivity, and vice takes pos- session where virtue should dwell. § 556 [639]. The mere giving to the wife of the custody of the children, at least the mere appointment of her to be guardian over them, by a legislative act which dissolves, on her petition, the marriage, does not change the legal relation of the father to them, further than concerns the right of guardianship. It does not emancipate them ; and their set- tlement in law follows his, not the mother's, with whom they are living ; and he is relieved from no obligation to support them.i Thus it was held in Connecticut ; and further, that, where the parents were divorced by legislative act, and the mother was appointed guardian of the minor children, the father was liable in a suit at common law to compensate her, and a stranger whom she had married, for the education and support furnished them.^ But the New York Supreme Court refused to recognize this doctrine to its full extent ; 1 Marlborough v. Hebron, 2 Conn. 20 ; Stanton v. Willson, 3 Day, 37 ; Leavitt V. Leavitt, Wright, 719 ; Cowls v. Cowls, 3 Gilman, 435. 2 Stanton v. Willson, 3 Day, 37. And see the observations of the court, upon this case, in Gordon v. Potter, 17 Vt. 348. [443] § 557 ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. and Piatt, J., who gave the opinion, observed : " The obliga- tion to support the children of that marriage was equal upon both the parents ; there being no special contract between the parties, nor any provision upon that subject in the statute granting the divorce. The only provision regarding the chil- dren (and that was made upon the express application and request of [the mother] Mrs. Bird), was, that the father should be divested of the custody and control of them, and that the mother should be their sole guardian. The mother being under equal natural obligation with the father to main- tain her offspring, and no positive law of Connecticut being shown on that subject, I can see no legal ground to authorize a recovery by the mother against the father for the mainte- nance of the children. At most, she can have a right to sue for a contribution only." ^ §557 [639]. In a more recent, Connecticut case, where there had been a judicial divorce on the application of the wife, to whom the custody and control of the minor children were awarded, the majority of the court, two judges dissent- ing, refused to sustain her action of book debt, against the father, for the cost of maintaining and educating them. The ground of the refusal was, that, after the divorce, the parents were under equal obligation for their support ; so that she, at the utmost, could demand no more than a contribution from the father.^ The true legal principle applicable to cases of this kind seems to be, that the right to the services of the children and the obligation to maintain them go together ; ^ and, if the assignment of the ciistody to the wife extends to depriving the father of his claim to their services, then he cannot be compelled to maintain them otherwise than in pur- suance of some statutory regulation. So where the court, granting the divorce and assigning the custody to the wife, makes, under authority of the statute, provision for their sup- 1 Pawling V. "Willson, 13 Johns. 192, 209. 2 Finch V. Finch, 22 Conn. 411. " See ante, \ 528, and the cases there cited. [ 444 ] CHAP. XXXI.] CUSTODY AND SUPPORT OF CHILDREN. § 558 port out of the husband's estate,^ he would seem, within principles already mentioned,^ to be relieved from all further obligation. § 558. There are some cases, principally of a more recent date than those referred to in the last two sections, from which some further views relating to this matter may be derived. In Pennsylvania, a mother deserted her husband before tlie birth of her child, for which desertion the husband obtained a divorce ; but there was no decree of the court re- lating to the custody of this child. She retained the child, after the divorce, in her own keeping, and brought suit to recover of the father compensation for its maintenance. The court lield, that she was not entitled to recover ; and Lowrie, C. J., observed: "The father is willing to take the child and support it himself. If she prefers to keep it, she can claim nothing from him as a right ; and we cannot enforce the duty of generosity. When a man abandons his child and casts it upon the public, he becomes liable for its support. But it is entirely impossible to treat a child as thus cast on the public, when the fact simply is, that the mother has deserted the father, and carried away the child, and continues to support it."° On the other hand it has been held, — no question of divorce being involved, — that the obligation of a father to provide for his child is not affected by his wife's misconduct ; and if, notwithstanding such misconduct, he suffers the child to live with the wife, he thereby constitutes her his agent to contract for necessaries for tlie child, and is liable to those who furnish them thus on his credit.* The doctrine of these cases, in which different results were reached, is perhaps not inharmonious ; still, it seems to the writer that the true prin- ciple is this: if, as a matter of fact, of which a jury is to judge, the father meant to intrust the mother with an agency 1 Ante, § 552. 2 Ante J 401. 3 ritler V. Fitler, 9 Casey, 50, 57. * GiU V. Bead, 5 R. I. 343 ; Rumney v. Keyes, 7 N. H. 571. [445] § 559 . ACCOMPANIMENTS OF MAIN ISSUE. [BOOK V. in these cases, he is holden on this ground ; or, if he meant to pay her, or perhaps if he meant to cast oif the children with- out giving them any support, he is holden. Yet if she chose to take the children herself, and provide for them while the father was willing to provide for them himself, the fact of his not interfering to prevent her executing this choice could not place him under any legal obligation to her or any other person. They had necessaries furnished by one who was willing to furnish them, while he was willing to do the same thing also.^ § 559 [645]. We have thus considered the usual orders and decrees which accompany and follow the sentence of divorce ; but the statutes of some of the States contain other provisions still. For example, the court in New York, on granting a divorce, may decide upon the legitimacy of chil- dren born subsequently to the commission of the offence for which the divorce is given. ^ But we shall find little satisfac- tion in pursuing these investigations further ; since the books do not furnish us with adjudications to point the way. ^ And see Hancock v. Merrick, 10 Cash. 41 ; Bnrritt ». Burritt, 29 Barb. 124. ^ Cross V. Cross, 3 Paige, 139 ; Van Aemam v. Van Aernam, 1 Barb. Ch. 375 ; Montgomery v. Montgomery, 3 Barb. Ch. 132. [446] BOOK VI. THE PROCEDURE IN SPECIFIC CAUSES OF DIVORCE AND . NULLITY; EMBRACING PLEADING, PRACTICE, AND EVI- DENCE. CHAPTER XXXII, GENERAL VIEWS. § 560. The present book does not embrace quite all the causes for divorce and nullity which were mentioned in the first volume ; because not all of them require any specific ex- planation with regard to the procedure. In previous portions of this second volume, we have so far examined the general doctrines which concern the pleading, practice, and evidence in these causes, as will leave but an easy course for us through the following chapters. § 561. In the closing part of this volume, a sufficient number of forms will be given fully to illustrate the practice and the pleading. Let us, in the chapters now before us, en- deavor to supply matter of reference whereby those forms can be verified ; and furnish, likewise, the needful view of the evidence. [447] CHAPTER XXXIII. WANT OF MENTAL CAPACITT.^ § 562. The reports do not contain any cases relating to the pleading and practice to be pursued where a marriage is sought to be set aside on the ground of the insanity of one of the parties; and it is not deemed best to enter into mere speculation upon the subject, especially as no questions of much diflSculty are liable to arise in relation to this matter. Some questions concerning the evidence there are, however, for consideration. § 563 [184]. The first question relates to the burden of proof. The full and complete discussion of this question would lead us further into the general law of evidence, than it would be consistent with the object of these pages for us to go. The proposition however has been laid down, that when the fact of marriage between parties of sufficient age is established, the law presumes them to have been capable of giving a valid consent ; and he who alleges the contrary must prove it.^ And this is a part of the general doctrine, that every person is to be presumed, primd facie, to be sane.^ On the other hand, the doctrine is stated to be, that when a condition of permanent insanity is once shown, the burden shifts, and he who claims there was a lucid interval must 1 For the law relative to this ground of nullity, see Vol. I. § 124 et seq. ^ Browning v. Eeane, 2 Phillim. 69, 1 Eng. Ee. 190 ; Wheeler v. Alderson, 3 Hag. Ec. 574, 598, 5 Eng. Be. 211, 223 ; Hale P. C. 33 ; Legeyt «. O'Brien, Mil- ward, 325, 334 ; Powell r. Powell, 27 Missis. 783. See Chambers v. The Queen's Proctor, 2 Curt. Ec. 415, 7 Eng. Ec. 151 ; 1 Eras. Dom. Rel. 45. ' Archey v. Stephens, 8 Ind. 411. [448] CHAP. XXXIII.] WANT OF MENTAL CAPACITY. § 564. prove it.^ Yet if the insanity is temporary, depending on some exciting cause not in perpetual action, tlie rule is said to be different ; and the burden still remains with him who alleges the insanity, to show that it, or its cause, was in operation at the very 'time of the marriage.^ And this dis- tinction probably explains why Sir George Lee, in Parker v. Parlier, refused to pronounce against the marriage ; ^ a result different from what was arrived at in the Scotch case of Brown v. Johnston, where the woman was shown to be in the habit of getting drunk, insanity always accompanying her intoxication, and continuing for a time after the drunken fit was over, and she was proved to have been intoxicated be- fore and at the time of tlie marriage.* § 564 [185]. When the insanity of a party has been estab- 1 Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 440, 442 ; Terry v. Buffington, 11 Ga. 3.37. See Groom v. Thomas, 2 Hag. Ec. 433, 4 Eng. Ec. 181 ; Cartwright V. Cartwright, 1 Phillim. 90, 1 Eng. Ec. 47; Grimani v. Draper, 12 Jur. 925; White V. Driver, 1 Phillim. 84, 1 Eng. Ec. 44 ; Archey v. Stephens, supra ; Wray V. Wray, 33 Ala. 187 ; Kemble v. Church, 3 Hag. Ec. 273, 5 Eng. Ec. 107, where the long interval of seventeen years since the insanity proved was held to be a material circumstance. And see on this point Arbery v. Ashe, 1 Hag. Ec. 214, 3 Eng. Ec. 89; Brogden v. Brown, 2 Add. Ec. 441, 2 Eng. Ec. 367 ; 1 Greenl. Ev. § 42.- 2 Legeyt v. O'Brien, Milward, 325, 334, 335. See also White v. Wilson, 13 Ves. 87 ; Hall v. Warren, 9 Vcs. 605, 611 ; Ayrey v. Hill, 2 Add. Ec. 206, 209, 2 Eng. Ec. 269, 271; Wheeler v. Alderson, 3 Hag. Ec. 574, 5 Eng. Ec. 211; Brogden v. Brown, 2 Add. Ec. 441, 2 Eng. Ec. 367 ; Stewart v. Redditt, 3 Md. 67 ; Corbit v. Smith, 7 Iowa, 60. 3 Parker w. Parker, 2 Lee, 382, 6 Eng. Ec. 165. * Brown v. Johnston, Ecrg. Consist. Law, Rep. 229. "It is established by every witness who knew Miss Brown, that, after a fit of intoxication, which generally lasted for many days at a time, she was not in a state of mind to judge of any- thing serious for several days after she got out of it; and, when it is considered that her liquor was ardent spirits, every person must be convinced of the truth of that evidence. As therefore the complainer, who knew this as well as any other per- son, went off' with Miss Brown while she was in a state of inebriety, in which she had been for nine immediately preceding days, it was his duty to prove, that, dur- ing the course of the week, from Monday to Saturday [the marriage was on Mon- day evening, and on Saturday she left the pretended husband, and refused to have any further communication with him], she had been in the state of sane recollec- tion, and acknowledged him as her husband." The Lord Ordinary's note of the case, p. 251. See also Browning v. Reane, supra. VOL. II. 29 [ 449 ] § 564 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. lished, no sufficient proof of a lucid interval arises from the mere fact tliat he went through the marriage ceremony with propriety and decorum. " The mere joining of hands," re- marks Dr. Ray,^ " and uttering the usual responses, are things not worth considering ; it is tHe new relations which the marriage state creates, the new responsibilities which it imposes, that should fix our attention as the only points in regard to which the question of capacity can be properly agitated. In other contracts, all the conditions and circum- stances may be definite and brought into view at once, and the capacity of the mind to comprehend them determined with comparative facility. In the contract of marriage, on the contrary, there is nothing definite or certain ; the obliga- tions which it imposes do not admit of being measured and discussed ; they are of an abstract kind, and constantly vary- ing with every new scene and condition of life. With these views, we are obliged to dissent from the principle laid down by the Supreme Judicial Court of Massachusetts, in a case of libel for divorce for insanity of the wife at the time of the marriage, that the fact of the parties being able to go through the marriage ceremony with propriety, was primd facie evi- dence of sufficient understanding to make the contract.^ If by making the contract is meant merely the giving of con- sent, and the execution of certain forms, then indeed the fact of the party's going through the ceremony with propriety may be some evidence of sufficient understanding to make it ; but if the expression includes the slightest idea of the nature of the relations and duties that follow, or even of the bonds and settlements that sometimes accompany it, then the fact here mentioned is no evidence at all of sufficient capa- city. Sir John Nicholl, looking at the subject in a different light, has very properly said, ' Going through the ceremony 1 Ray Med. Juiisp. Insan. 2d ed. § '200. 2 Anonymous, 4 Pick. 32. This is a brief case, little considered by the court. The question of the burden of proof was not discussed in it ; and it cannot be taken, in any view of it, as an authority for the proposition, that propriety of con- duct during the marriage ceremony would be sufficient evidence in itself alone of a lucid interval, in persons shown to be habitually insane. [450"] CHAP. XXXm.] WANT OF MENTAL CAPACITY. § 566 was not sufficient to establish the capacity of the party, and that foolish crazy persons might be instructed to go through the formality of the ceremony, though wholly incapable of understanding the marriage contract.' ^ In a similar case, Lord Stowell, then Sir William Scott, had previously ob- served, on tlie fact given in evidence that the party had ' manifested perfect propriety of behavior during the cere- mony, that much stress was not to be laid on that circum- stance, as persons in that state will nevertheless often pursue a favorite purpose with the composure and regularity of ap- parently sound minds.' " ^ § 565 [186]. If the insane person has recovered his reason, being of lawful age, any suit on his behalf to establish the nullity of the marriage must be brought in. his own name.® But though one is permitted thus to plead his own former incapacity, the burden of proof lies heavily on him.* § 566 [186]. Incases where, subsequently to the marriage, a commission of lunacy has been taken out, and the jury has found, that the party was insane at the period of mar- riage solemnized, this finding is admissible in evidence as tending to establish its nullity ; ^ and we have seen that in England the marriage would be conclusively null, if the commission were taken out before.^ The doctrine, in respect to a commission taken out after the solemnization, and the jury covering in their finding the former period, as deducible from other causes than matrimonial, appears to be, that the verdict is sufficient primd facie evidence of insanity, but it 1 Browning v. Eeane, 2 Phillira. 69, 1 Ecg. Ec. 190, 197. 2 Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 440, 444. See also Parker v. Parker, 2 Lee, 382, 6 Eng. Be. 165. 5 Wightman ». Wightman, 4 Johns. Ch. 343 ; Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 440. * Turner v. Meyers, supra. 6 Portsmouth v. Portsmouth, 1 Hag. Ec. 355, 3 Eng. Ec. 154. And see Ex parte Glen, 4 Des. 546. » Vol. I. § 130. [451] § 568 PROCEDUEE IN SPECIFIC CAUSES. [BOOK VI. may be rebutted.^ In a matrimonial cause, Sir John NichoU seemed inclining to give it certainly no greater weight than this, if so great ; for he said : " The finding is a circumstance, and a part of the evidence, in support of the unsoundness of mind at the time of the marriage, but no more ; for this court must be satisfied by evidence of its own, that grounds of nullity existed." And in the case in which these obser- vations occur, the plaintiff did not in fact rely upon this evidence alone.^ § 567. Some adjudged points relating to this matter are the following : In 1836, a man was found, by an inquisition of lunacy which he never traversed, to be of unsound mind. In 1838, he was married in due form ; and, in 1850, he died, leaving of the marriage issue who claimed to be his heirs at law and distributees. It was held, that the inquisition of lunacy was only prifnd facie evidence of his mental incapacity to contract the marriage, and that the issue had the right to litigate this question. This was a South Carolina case, and Dunldn, Cli., observed : " In reference to proceedings in lu- nacy, our courts adopt the practice of Westminster Hall, as it existed prior to 1721, so far as is consistent with our insti- tutions. In this view, the Stat. 2 Bdw. 6, giving the right of traverse, lias been held applicable, although not expressly declared to be of force in this State by any legislative enact- ment." 3 § 568. In a North Carolina case, on a suit brought by the ■ committee of an idiot to have a marriage which, like the one mentioned in the last section, was entered into subse- quently to the finding of the commission, declared void, it was laid down by the court that the commission was not conclusive evidence of the idiocy ; and a query was even suggested, whether it was so much as primd facie evidence 1 Sergeson v. Sealey, 2 Atk. 412 ; Yates v. Boen, 2 Stra. 1104 ; Faulder v. Silk, 3 Camp. 126 ; Baxter v. Portsmouth, 5 B. & C. 170 ; 2 Greenl. Ev. § 371. ^ Portsmouth v. Portsmouth, supra. ^ Keys v. Norris, 6 Rich. Eq. 388, 390. [452] CHAP. XXXIII.] WANT OF MENTAL CAPACITY. § 569 though, under all the facts appearing, a sentence of nullity was pronounced.^ In a Kentucky case, — not, however, a suit for divorce or nullity, — the doctrine was laid down, that an inquest of lunacy is conclusive evidence eo tempore, but only primd facie such as to any subsequent time.^ And it seems to be the general doctrine with us, that, when one under guardianship as insane does an act, his insanity shall be so far presumed as to cast upon the person affirming the contrary the burden of proving the sanity ; though some of the cases appear to make the fact of guardianship only an item of evidence toward establishing the insanity, which the party alleging its existence must take the burden throughout of proving.^ § 569. The effect of a guai'dianship over an alleged insane person may, however, under the statutes of some of our States, be such as to disqualify the person to do an act of a particular kind, though the act were performed during a lucid interval ; and such effect the reader will distinguish from the matter of proof now under discussion. Thus, in Pennsylvania, one found by inquisition to be a habitual drunkard is thereby rendered incompetent to enter into any subsequent contract which will bind his estate ; but if he has the requisite mental capacity, his marriage may never- theless be good. And where such a person executed just before his marriage a bond for the benefit of his intended wife, the bond was held to be void, though the marriage was valid. Said Thompson, J. : " There is nothing in the argu- ment, that, the bond being in the nature of an ante-miptial settlement, it must be sustained, or the marriage contract itself will necessarily be void. The incapacity to contract regards only the estate. Contracts, purely personal, or for others, and not involving the estate, may not be void. It was held, in 1 Johnson v. Kincade, 2 Ire. Eq. 470. 2 Clark V. Trail, 1 Met. Ky. 35 ; s. p. Lucas v. Parsons, 23 Ga. 267. ' Rogers e. Walker, 6 Barr, 371; Stone k. Damon, 12 Mass. 488; Hopson ». Boyd, 6 B. Monr. 296; Lucas v. Parsons, supra ; Field i;. Lucas, 21 Ga. 447; Thomasson v. Kercheval, 10 Humph. 322. [453] § 569 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. Sill V. McKuight,^ that one decreed a habitual drunkard might legally be an executor. The marriage, in this case, was not invalidated by reason of the status of Witmer [the hus- band], at the time of its celebration." ^ 1 Sill V. McKnight, 7 "Watts &. S. 244. 2 Imboff V. Witmer, 7 Casey, 243, 245. And see Wadsworth v. Sharpsteen, 4 8eld. 388. [454] CHAPTER XXXIV. FRAUD.' § 570. Wb have already had occasion to see,^ that, in the United States, according to the doctrine more generally pre- vailing, a court of equity, having general equity powers, will take jurisdiction to declare a marriage void by reason of fraud, even though there is no specific statute on the sub- ject.^ But in most of our States, this matter is not left in so general a way, there are specific statutes authorizing some tribunal to grant the sentence of nullity for this cause. § 571. Concerning the form of the bill or libel, there is not much which can be said, based upon specific authority. In a Pennsylvania case, the statute providing, that the com- plainant shall exhibit his complaint " setting forth par- ticularly and specially " the grounds thereof, the following allegation was held not to be sufficient : " That the said Amanda Goebel [the defendant] hath wilfully and maliciously obtained tlie said marriage fraudulently, and with force and coercion ; and that in order to obtain the said marriage, the said Amanda wilfully and laiowingly made false representa- tions to your libellant and his friends, which said false representations (your libellant at the time not knowing them to be false) induced the said libellant to enter into the bonds of matrimony with the said Amanda Goebel." It was ob- served by Tliompson, J., that " neither the nature of the force employed, nor the kind of fraud practised, or in what con- sisted the false representations, is disclosed or hinted at in 1 For the law relating to this ground of nullity, see Vol. I. § 1 64 et seq. " Ante, 5 291 - 293. " And see Fowler v. McCartney, 27 Missis. 509. [ 455 ] § 573 PEOCEDURE IN SPECIFIC CAUSES. [BOOK VI. the libel." Moreover, the defect was not " attempted to be cured by serving and filing a specification of the facts intended to be proved, which, under the authority of Steele v. Steele,^ might perhaps still be permitted by the courts." ^ § 572. The general doctrine applicable to all cases in which fraud is alleged, whether they be divorce cases or any other, is, that he who alleges the fraud takes upon himself emphatically the burden of proving it; since fraud, being a dereliction of duty, is not to be presumed.^ Still, the evidence of fraud need not be such as absolutely to resist every other conclusion ; * and Black, C. J., in a Pennsylvania qase, once observed, " It is not true that fraud can never be presumed " ; for allegations of fraud are generally sustainable, and in fact sustained, only by circumstantial evidence." Therefore in questions of fraud, there should be allowed to the party relying on this allegation considerable latitude in the pro- duction of his evidence, the court excluding nothing which is not plainly irrelevant.^ Such are some of the points found in cases not matrimonial, and they apply equally where the cause relates to the nullity of the marriage. § 573. Where, in a suit by the husband to annul tlie mar- riage by reason of his consent to it having been obtained by fraud, the fraud attempted to be shown consisted in a con- spiracy between the woman and her paramour to conceal from the plaintiff the fact of her being with child by the paramour, yet the paramour was not a party to the bill, — it was held, in the New York Chancery Court, that the admis- sion, by tliis third person, of the fact of his being the child's father, was not evidence to rebut the legal presumption of paternity in the husband.^ 1 Steele v. Steele, 1 Dall. 409. 2 Hoffman v. Hoffman, 6 Casey, 417, 419. 8 Joyce V. Joyce, 5 Cal. 161 ; Coulson v. Coulson, 5 Wis. 79 ; Flint v. Jones, 5 Wis. 424; Stewart v. English, 6 Ind. 176; HoUister v. Loud, 2 Midi. 309. * Seligman v. Kalkman, 8 Cal. 207 ; Parkhurst v. McGraw, 24 Missis. 134. ' Kaine v. Weigley, 10 Harris, Pa. 179. ^ Gist v. McJunkin, 2 Rich. 154. ' Montgomery v. Montgomery, 3 Barb. Cb. 132. [456] CHAPTER XXXV. IMPOTENCE.! § 674. A SUIT for nullity on the ground of impotence is a proceeding delicate in its nature, and requiring special care in respect both to the allegations and the proofs. The practitioner who appears for the plaintiff must set out a sufficient cause on which to base the sentence he prays, and must produce sufficient evidence to sustain the averment ; at the same time, he should be careful not needlessly to offend that sense of modesty and decency which should be respected as well in courts of justice as in other places.^ Yet no false modesty should prevent him from setting forth in due legal form the ground of complaint, and sustaining it by competent and sufficient evidence. § 575. In a Connecticut case, " the petitioner stated," says the report, " that, on the 26th of February, 1828, she [the petitioner] was lawfully married to the respondent ; that she was induced to enter into such marriage from the false and fraudulent representations of the respondent, from which she was made to believe, that he was a sound man, and wholly competent to the performance of all the duties of a husband ; yet that, at the time of said intermarriage, the respondent was, and ever since has been, and still is, laboring under a corporal imbecility, and never has had or attempted to have sexual intercourse with the petitioner, although thejr have, for several weeks, lodged together in the same bed." A sen- 4 1 For the law relating to this ground of nullity of marriage, see Vol. I. § 321 et seq. '^ And see ante, ^ 287. [457] § 576 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. tence of nullity having been on this petition granted, it was reversed on writ of error, because the petition did not set forth a sufficient ground whereon to found the sentence. The court considered, that the allegation of fraud could have no influence, because it is not stated what the particular fraudu- lent representations were ; neither could the allegation of the want of sexual intercourse avail, this being a mere state- ment of the evidence, and there being no allegation of the cause by reason of which there was no such intercourse ; and the allegation, " that," to quote the exact words, " at the time of their intermarriage the said Abel was, and ever since has been, and now is, laboring under a corporal imbe- cility," could not suffice, because it contains no intimation of its permanence or incurability. " I would not intimate," said Bissell, J., " that the record need contain grossly indeli- cate statements. But surely enough should be stated to enable the court to see that the case demands their inter- ference. This, in my opinion, is not done in the present case." ^ § 576. In Coote's Ecclesiastical Practice, there are given the forms of two libels for nullity on the ground of impo- tence. The first one sets out, in several successive articles, the living together of the parties in the general way of husband and wife, and alleges specific times when they "lay naked and alone together in one and the same bed." It likewise states, that the parties were respectively in good health, and that " she the said C. D. [the complainant] was also apt and fit for coition and the procreation of children, and was will- ing to receive and showed herself desirous of receiving the conjugal embraces of the said A. B. [the defendant], and on all occasions gave herself up to him for the purpose." Then it proceeds as follows : " That notwithstanding the premises pleaded in the next preceding articles, the said A. B. has not at any time been able to consummate the said marriage, and she the said C. D. never hath*been carnally known by him, 1 Ferris v. Ferris, 8 Conn. 166. [458] CHAP. XXXV.] IMPOTENCE. § 577 nor is he the said A. B. able carnally to know her the said C. D. ; and the party proponent doth expressly allege and propound, that the inability of the said A. B. to consummate the said marriage and carnally know the said CD., arises from the defective state of the parts of generation of him the said A. B., and his natural impotency, imbecility, and impediment which renders him incapable of consummating marriage, or of carnally knowing or having sexual inter- course with any woman whomsoever." Another article is as follows : " That prior to and at the time of the said marriage on the &c., and at all times subsequent thereto, the said A. B. was, as he now is, impotent, and wholly incapable of performing the act of generation or of carnally knowing any woman, and such his constant impotency, or imbecility, and incapacity, will clearly appear on an inspection of his person by physicians and surgeons or other competent persons suf- ficiently skilled to form an opinion respecting the same ; and it will also appear by such inspection that such the constant impotency, inability, and incapacity on the part of the said A. B. cannot be removed or relieved." ^ § 577. The otiVer libel is also that of the woman against the man, and the two articles material to our practice are as follows : " Thirteenth. That during all and singular the nights^ and parts of nights that the said A. B. and the said C. D. otherwise, &c., lay, naked and alone, in one and the same bed- room and bed, as pleaded in the sixth, seventh, eighth, ninth, and eleventh articles of this libel, the said [plaintiff woman] C. D. otherwise, &c., was apt and fit for coition, and was desirous of the conjugal embraces of him the said A. B., and willing to be carnally known, in order to become a mother, by him, and gave herself up to him, without any reserve, for that purpose accordingly ; also that during the whole thereof, save as hereinafter excepted, the said A. B. was of sound and perfect bodily health, but that, notwithstanding the premises, the said A. B. neither ever did nor was ever able to consum 1 Coote Ec. Pract. 370-376. [ 459 ] • § 578 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. mate his aforesaid pretended marriage with the said C. D., otherwise, . Morgan, 2 Hag. Con. 328, 330 ; s. C. 3 Phillim. 325, 1 Eng. Ec. 408. '^ Grimbaldeston v. Anderson, cited in Norton v. Seton, 1 Phillim. 147, 154, 1 Bng. Ec. 384, 385. ' Grimbaldeston v. Anderson, supra; Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308 ; Sparrow v. Harrison, 3 Curt. Ec. 16, 27, 7 Eng. Be. 359 ; Welde ». Welde, 2 Lee, 578. In Pollard v. Wybourn Dr. Lushington remarked ; " Here are the very strongest grounds to presume the impotency of the man. If the par- ties lay together in one bed for so many years, of such ages, and the woman is certified to remain virgo intacta ; there cannot be a stronger presumption, that im- potency existed, and that it was incurable." * Post, § 588 et seq. ° Briggs V. Morgan, 3 Phillim. 325, 1 Eng. Ec. 408 ; Deane v. Aveling, 1 Kob- ertson, 279. " When the impotency doth sufficiently constare to be perpetual by the oaths aforesaid upon inspection, there the triennial probation ceases." Godol. Ab. 494. 5 Aleson v. Alcson, 2 Lee, 576; Lewis v. Lewis, cited 2 ib. 579. [ 466 ] CHAP. XXXV.] IMPOTENCE. § 587 § 586 [246]. Moreover it is said in Swinburne on Spousals : " Albeit he that hath accomplished the age of fourteen years at the time of the marriage be not then able to pay the debt which he oweth to his wife, yet, by the received opinion (though some dissent), the matrimony is not therefore by and by to be adjudged void; but she is to expect until he have overreached the eighteenth year of his age, wherein plena pubertas is concluded ; and, if then also he be unable to pay his dues, at the instance of the woman the marriage may be dissolved, unless the judge, upon the consideration of the qualities of the persons, shall grant a longer time."^ § 587 [247]. In Greenstreet v. Cumyns, the. cohabitation seems not to have continued for three years. The form of the allegation in this respect is not given in the report ; but the marriage was celebrated in July, 1807, and the suit was instituted Nov. 1809. The libel, produced by the woman, charged the husband's incapacity for consummation ; and "he admitted the fact in his answers. The physicians and sur- geons appointed to inspect his person stated substantially in their report, that though the disease and imperfection of the parts were not such as to imply impotence to the execution of their functions ; yet that, having heard his own accurate history of the alleged difficulty, they put full faith in his ac- count ; and, as he was in good health, they could hold out no hopes of its being remedied by any medical treatment. The wife seems not to have been inspected. Lord Stowell was of opinion that the proofs were sufficient, and that there was no collusion, and pronounced for the nullity. " There is an air of truth," he said, " in the evidence, and a great dis- position on the part of the husband to atone for the injury he has inflicted on this lady; being in utter ignorance himself of his constitutional defects. It appears he was incapable at the time of the marriage, and has continued so ever since. "^ 1 Swinb. Spoasals, 49. * Greenstreet ». Cnmyns, 2 Phillim. 10, 1 Eng. Ec. 165. [467] ■ § 589 PEOCKDUKE m SPECIFIC CAUSES. [BOOK YI, § 588 [248]. In cases proper for the application of the three years' rule, a substantial compliance with it seems to be all which is required by the courts. There need not be a living together de die in diem, but a general cohabitation is sufiQcient.^ The libel need not allege (we are now stating the practice in the English Ecclesiastical Courts) specially when, where, and how long in each place the parties cohab- ited ; this being proper matter for plea on the other side.^ But where the objection was taken, and it appeared, that, though the three years had elapsed, the parties had been necessarily separate a considerable portion of the time, the court allowed a further time, and enjoined the complainant to return meanwhile to cohabitation.^ On the other hand, in some late English cases, the divorce was granted on a period of cohabitation somewhat within the three years; and the court seemed evidently inclined to hold the rule, in respect to time, less strictly than some of the former decisions appear to taaintain.* § 589 [249]. In no reported American decisions has this rule of triennial cohabitation been considered. But since it is reasonable, is remedial also, reaching cases in which other- wise the proofs would fail, we may presume our tribunals will not reject it as being repugnant to our institutions and relations. A modification of it may, in some States, be re- quired ; as in New York, where a statute of limitations obliges the party proceeding on the ground of impotence, to bring his suit within two years after the marriage.^ In the modern Scotch law, the substance of the rule is held ; but " there is no precise, fixed period during which the parties must cohabit before a decree will be pronounced"; though anciently the time was three years, as in the canon law.® 1 Welde V. Welde, 2 Lee, 578 ; Sparrow v. Harrison, 3 Curt. Ec. 16. " Welde V. Welde, supra. = Welde v. Welde, 2 Lee, 580, 586. * N. V. M., 2 Robertson, 625 ; s. c. nom. Anonymous, 22 Eng. L. & Eq. 637 ; 8. c. nom. A, V. B., 1 Spinks, 12 ; U. v. E., 2 Robertson, 614. And see post, § 600. 5 New York, R. S. pt. 2, c. 8, § 33. « 1 Eras. Dom. Rel. 59. [ 468 ] CHAP. XXXV.] IMPOTENCE. § 591 § 590 [250]. There is also a peculiarity ia the method of obtaining evidence, under some circumstances, in these cases. Since the plaintiff must establish both the impotence and its incurable nature, plainly under circumstances he can do it only by the aid of a medical and surgical examination, either of himself, or of the defendant, or of both. Therefore in Eng- land, Scotland, France, and probably every other country where this impediment to marriage has been acknowledged, the courts have compelled the parties, when necessary, to submit their persons to such an examination. In ancient times and in some countries methods of unnecessary ex- posure have been employed. But unless some way of com- pelling proofs were followed, there would be a failure of justice, which the law of no country should allow. " It has been said," remarks Lord Stowell, " that the modes resorted to for proof on these occasions are ofifensive to natural mod- esty. But nature has provided no other means ; and we must be under the necessity of saying, that all relief is de- nied, or of applying the means within our power. The court must not sacrifice justice to notions of its own."^ Some- thing like this proceeding is known in the courts of the com- mon law, in cases where a jury of matrons is called to ascertain, whether a woman, under sentence of death, is with child.2 § 591 [251]. Unless this rule of inspection is repugnant to our institutions and positive laws, it must be deemed to have been imported into this country by our forefathers.^ Chan- cellor Walworth followed it, without a doubt of his right to do so. He well remarked : " When the legislature conferred this branch of its jurisdiction upon the Court of Chancery, it was not intended to adopt a different principle from that which had theretofore existed in England, and indeed in all Christian countries, as to the nature and extent of the physi- 1 Briggs V. Morgan, 3 Phillim. 325, 1 Eng. Ec. 408, 410 ; 1 Fras. Dom. Rel. 60, 61 ; Poynter Mar. & Div. 135, note. 2 Beg. V. Wycherly, 8 Car. & P. 262 ; The State v. Arden, I Bay, 487, 489. " Vol. L § 66 et seq. [469] § 693 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. cal incapacity which would deprive one of the parties of the power to contract matrimony. And the court is, by neces- sary impUcation, armed with all the usual powers, which, in that country from which our laws are principally derived, are deemed requisite to ascertain the fact of incapacity, and without which it would be impossible for any court to ex- ercise such a jurisdiction. "1 § 592 [252]. lu the same opinion he also says : " In every case of this kind, it is necessary that the court should pro- ceed with the greatest vigilance and care, not only to prevent fraud and collusion by the parties, but also to guard against an honest mistake under which they may be acting merely from the want of proper medical advice and assistance. Prom the very nature of the case, it appears to be impossible to ascertain the fact of incurable impotence, especially when the husband is the complaining party, except by a proper surgical examination, by skilful and competent surgeons, in connection with other testimony. And if the allegations in the bill have neither been admitted nor denied by an answer on oath in the usual manner, the defendant should be exam- ined on oath, before the master, as to the truth of those allegations. This appears to be the ordinary course of pro- ceeding in such cases at Doctors' Commons.^ And I have no doubt as to the power of this court to compel the parties, in such a suit, to submit to a surgical examination, whenever it is necessary to ascertain the facts essential to the proper decision of the cause." ^ ' § 593 [253]. The Ohio court has denied the right to compel an inspection ; but under what circumstances, and in- fluenced by what considerations, it does not appear. What- ever is known on the subject is embraced iii the following, from the editor of the Western Law Journal. " I have 1 Devanbagh v. Deyanbagh, 5 Paige, 554, 556. 2 Poynter Mar. & Div. 126, note. ' Devanbagh v. Devanbagh, 5 Paige, 554, 557. [470] CHAP. XXXV.] IMPOTENCE. § 594 been," he says, " counsel in a case where the wife complained of impotence in the husband. There being no other mode of proof, application was made to the Supreme Court on the circuit for an order of inspection. The question was re- served to the court in bank, who decided that they had no power to grant the order, and the petition was dismissed on account of the impossibility of proof." ^ § 594 [254]. The right of inspection, resting on necessity, ends, of course, where the necessity ends. Therefore, if, be- fore suit brought, the party has been by physicians and sur- geons inspected, nothing further will ordinarily be directed, only their testimony will be taken.^ But where the answer of the defendant wife (the proceeding being in equity) ad- mitted the present incapacity, and denied its having existed at the time of the marriage,— =- the difficulty being of a nature to render necessary a surgical examination of her person, in connection with, interrogatories for her to answer under oath as to the commencement and progress of the disease creating it, — this procedure was ordered, although she had been previously examined ex parte, and without oath, by her own medical attendants.^ Tlie court will not direct an inspection until, in the progress of the cause, it appears plainly to be required for the establishment of justice between the par- ties.* And in an English case, of a complexion which plainly would render necessary an inspection should the cause pro- ceed to a hearing, the court deferred the admission of the libel tendered by the husband, and gave the defendant wife an opportunity to reply by affidavits ; whereupon, it appear- ing highly impVobable the suit could succeed, the proceeding was dismissed.^ 1 2 West Law Jonr. 131. ^ Brown v. Brown, 1 Hag. Ec. 523, 3 Eng. Ec. 229 ; Devanbagh v. Devanbagh, 5 Paige, 554, 557. " Newell V. Newell, 9 Paige, 25. " Anonymous, Dean & Swabey, 295, 333. 5 Briggs V. Morgan, 2 Hag. Con. 324 ; s. c. 2 Phillim. 325, 1 Eng. Ec. 408. And see Aleson v. Aleson, 2 Lee, 576. ' [471] § 596 PKOCEDUEE IN SPECIFIC CAUSES. [BOOK VI. § 595 [265]. On a like ground, if the order of inspection ■will probably hinder justice, not promote it, the order will not be made; or, if made, it will not be enforced. Were in- spection always insisted upon, the defendant, in many cases, need only withdraw beyond the reach of the process of the court, to defeat the suit. Accordingly, where a defendant husband who had left the country gave in no answers, and refused to be inspected, a certificate (twelve years after mar- riage), that the woman was virgo intacta, and apta viro, coupled with his two several confessions to medical witnesses of incapacity, and proof of her health having suffered, was held to be sufficient.^ Where the wife is defendant, and is out of the jurisdiction of the court, the allowance of her alimony may be suspended to compel her into submission to an examination.^ § 596 [256]. When the woman is plaintiff in a suit of this sort, and the libel states her to have been a spinster at the time of the marriage, an inspection of her person, as well as of the husband's, is usual; because her virginity and capacity implies his incapacity.^ Indeed Dr. Lushington once remarked, that the court always requires a certificate of medical persons as to the condition of the woman;* but probably the remark was intended only for such a case as the one under consideration, and for cases arising under the three years' rule, where the proof of incurable impotence consists, wholly or in part, in showing the non-consumma- tion ; ^ since, in other cases, the woman seems not to have been inspected.® Neither does any good reason appear, why, • as a universal rule, she should be inspected ; though, as was said in an old case, " the virginity of the woman is very 1 Pollard V. 'Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308 ; Coote Ec. Pract. 368. ' Newell J7. Newell, 9 Paige, 25. s Coote Ec. Pract. 367. • Pollard V. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308. « Ante, § 585. « See Greenstreet v. Cumyns, ante, § 587, 3 Philllm. 10, 1 Eng. Ec. 165. And see Norton t). Seton, 3 Phillim. 147, 158, 1 Eng. Ec. 384, 386; Harrison ». Spar- row, 1 Cart.^Jc. 1, 7 Eng. Ec. 357, 4 E. P. Moore, 96 ; post, § 600. [472] CHAP. XXXV.] IMPOTENCE. § 598 material";^ and, where she can make it appear, there is a propriety and usefulness in her doing so. But stippose she ■were not virgo intacta, having been defloured before the marriage ; she would still be entitled to a sentence of nullity, if she had married a man incurably impotent, from a defect obvious on examination.^ § 597 [257]. This inspection is, in the modern Ecclesiastical practice, intrusted to three medical men ; either two physi- cians and a surgeon, or two surgeons and a physician ; nom- inated by the promoter, the adverse party having the privilege of naming, if he pleases, one or more of them.^ It appears formerly to have been performed, as to the woman, in whole or in part by matrons and midwives.* The rule of the Ec- clesiastical Courts, not followed on the hearing of divorce causes in this country, of requiring substantially two wit- nesses to each specific fact,^ renders it necessary, in those courts, that there be more inspectors than one. No reason however occurs, why we in this country should follow the English practice in this respect. § 598 [258]. The inspectors are sworn.^ Their certificate," according to the invariable practice in England, does not give reasons. " I should be extremely reluctant," said Dr. Lush- ingtou, " to depart from that practice. In the first place, it is a received maxim, Cuilibet in arte sud credendum est. Sec- ondly, if the grounds were given, how could the court com- prehend the reasons, and decide between conflicting opin- ions? Besides, the introduction of the grounds would lead 1 Grimbaldeston v. Anderson, cited 3 Phillim. 155, 1 Eng. Ec. 385. ^ The new Divorce Court in England seems to hold very close to the rale re- qniring inspection, and to construe it as of somewhat more universally binding force than the foregoing sections represent it to be. H. v. C, 1 Swab. & T. 605. 3 Coote Ec. Pract. 388; Deane v. Aveling, 1 Eobartson, 279, where the proceed- ings appear in full. * Essex V. Essex, 2 Howell St. Tr. 786, and Vol. I. § 335 ; Ayl. Parer. 228. In Welde V. Welde, 2 Lee, 580, the wife, who was libellant, was inspected by mid- wives, and the defendant by surgeons. 6 See ante, § 281, 282. » Coote Ec. Pract. 389. [473]. § 599 PEOCEDURE IN SPECIFIC CAUSES. [BOOK VI. the court into minute inquiries about matters the decision of which the court would be most anxious to avoid, unless it were ftnperatively called to pursue the investigation." ^ But, where the case requires, the inspectors may also be examined as witnesses.^ Their certificate is usually considered merely in connection with other proofs; and Sir John Nicholl re- marked, that, even as collateral, it is always taken with caution ; he was aware of no case in which it had been ad- mitted as sufficient alone.* Yet in Pollard v. Wybourn,* the certificate was certainly the leading proof of impotence ; and it might be difficult to state any legal principle which would withhold from it, when admissible, full credit to the extent to which it should be found applicable. The parties may give evidence by other witnesses than the inspectors, of the same matters to which the certificate relates.^ § 599 [259] . In the New York case of Devanbagh v. De- vanbagh, where the proceeding was in equity, and the bill, brought by the husband, was taken for confessed. Chancellor Walworth gave the following directions : " There must be a reference to a master to take proof of the facts and circum- stances stated in the complainant's bill ; and particularly the master must inquire and report, whether the defendant, at the time of the solemnization of the marriage with the com- plainant, was physically incapable of entering into the. mar- riage state, and whether she is still virgo intacta, and incapable of consummating the marriage contract, by reason of her own incurable impotence. The order of reference must also di- rect, that the master examine the defendant on oath as to the several matters alleged in the bill, and thfl,t the defendant 1 Pollard V. Wyboum, 1 Hag. Ec. 725, 3 Eng. Be. 308. In Deane v. Aveling, I Robertson, 279, 284, is the form of certificate, with some of the other proceedings. ^ Deane v. Aveling, 1 Robertson, 279. > Norton v. Seton, 3 Phillim. 147, I Eng. Ec. 384, 387 ; Rogers Ec. Law, 2d ed. 641. * Pollard V. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308. See also Greenstreet v. Camyns, 2 Phillim. 10, 1 Eng. Ec. 165. « Serrell v. Serrell, 2 Swab. & T. 422. [474] CHAP. XXXV.] IMPOTENCE. § 600 submit herself to such surgical examinations, and examina tions by matrons, as the master may think proper to direct, for the purpose of ascertaining the fact of the alleged impo- tence ; but that no person shall be present at such examina- tions, except the surgeons and matrons who may be selected by the master for that purpose, unless with her consent; and that, in the selection of surgeons and matrons for that pur- pose, the master have a due regard to the feelings and wishes of the defendant. The master is also to be directed to return the proofs taken before him, in a schedule to his report. No person is permitted to be present before the master, on the reference, except the parties and their counsel and witnesses, and such friends of either of the parties as they, or either of them, may request to attend the reference. And the com- plainant, under the direction of the master, must furnish the necessary funds to pay the expenses of the surgical exam- inations of the defendant, if a sufficient and satisfactory ex- amination has not already been made." ^ § 600 [260]. There are no special considerations of impor- tance, as to the amount of proof, distinguishing these cases from others. As illustrative, the case of Greenstreet v. Cumyns, already stated, may be mentioned.^ In Harrison v. Sparrow, also a suit promoted by the wife, the husband refused to undergo inspection, and was pronounced for the refusal in contempt. Tlien he appeared and offered to be inspected, but was refused. The certificate as to the plaintiff wife was in effect, " that there were no positive proofs of connec- tion having taken place, or the contrary ; but that there were decidedly no physical impediments to sexual intercourse." There were also the husband's confessions, and some col- lateral evidence. He admitted the non-consummation, but denied his inability. The parties had lived together in the matrimonial relation seven years. The court, satisfied there 1 Devanbagh v. Devanbagh, 5 Paige, 554, 558. For the termination of this suit, Bee 6 Paige, 175. 2 Ante, § 587. [475] § 600 PKOCEDURE m SPECIFIC CAUSES. [BOOK VL was no collusion, gave sentence of nullity.^ lu G s v. T e, the parties had cohabited only three months; the husband's answers were taken to the libel; and the wife " an(f other witnesses" were examined, — but what their tes- timony was the case does not state. The inspectors certified in eflfect as to the wife, that there were no certain signs of virginity which could be relied on, yet that there was no evidence of perfect consummation having taken place. As to the husband, their certificate was : " We find no auatomi- cial malformation ; but, from oral information obtained, dur- ing a somewhat lengthened interview, we are decidedly of opinion that there is some physiological defect which has prevented him from completing the act of copulation. As we cannot discover any special cause to which a remedy can be applied, we fear this defect will be permanent." Dr. Lushington granted the divorce, remarking, " that he could not think of sending the lady back to renew cohabitation, though he could have wished that it had been more distinctly stated that her health had suflFered, and was liable to suffer, by such cohabitation." ^ This decision seems to bear hard, though indirectly, against the doctrine which requires some- thiug like a triennial cohabitation where the defect is not obvious on inspection; — or, Is this to be ^ regarded as a case of such obvious defect? In Keith v. Keith, where a divorce was granted, there was the testimony of tliree respectable men, who concurred in saying, that, a few days before the sitting of the court, they submitted the defendant to an ex- amination, and found him destitute, in particulars they pointed out, of the members or qualifications of a man.* Other illustrations may be seen on consulting, in the books of reports, the cases cited in the foregoing sections of this chapter, and the corresponding chapter in our first volume. 1 Harrison r. Sparrow, 1 Cart. Ec. 1, 16, 7 Eng. Ec. 357, 359. Affirmed by the Privy Council, 4 E. F. Moore, 96, 103. " G s ». T e, 1 Spinks, 389. » Keith v. Keith, Wright, 518. [476] i CHAPTER XXXVI. ADULTERY.* Sect, 601. Introduotion. e02 - 611. The Allegation of Adultery in the Libel. 612-647. TheEvideuco. § 601. Most of the matters which pertain to what may be called the practice, in distinction from the pleading and the evidence, under this head of adultery, are discussed in other connections. And the remaining points will be found inter- spersed through the following sections of the present chapter, wherein we shall consider, I. The Allegation of Adultery in the Libel ; II. The Evidence. I. The Allegation of Adultery in the Libel. § 602. In the form of libel for divorce on the ground of adul- tery, given in Coote's Ecclesiastical Practice, the adultery is, in throe of tlie eighteen articles which it contains, positively alleged ; and the following are the words respectively : " That on some occasions of their being so alone together as aforesaid, they the said Arthur Vincent and Maria Theresa Grant had the carnal use and knowledge of each other's bodies, and there- by committed the foul crime of adultery." — " That the said Arthur Vincent and the said Maria Theresa Grant, whilst so alone together on that day, had the carnal use and knowledge of each other's bodies, and thereby committed the crime of 1 For the law pertaining to this ground of divorce, see Vol. I. h 703 et seq. [477] § 604 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. adultery." — " That on the said night the said Arthur Vincent and the said Maria Theresa Grant were alone, naked together in one and the same bed, and committed adultery." ^ In the form adopted by the present Matrimonial Court of England, two distinct allegations of adultery are made, in the following words : " That on the day of , 18 — , and other days between that day and , the said 0. B. at , in the county of , committed adultery with R. S." — " That in and during the months of January, February, and March, 186-, the said C. B. frequently visited the said R. S. at , and on divers of such occasions committed adultery with the said R. S." ^ § 603. There can be but little doubt, that, in this country, the words " committed adultery " are sufficiently descriptive of the act ; and probably they always were so, as they are now, in England. There should be, however, accompanying words pointing sufficiently to the time, place, person with whom the offence was committed, and the like, to meet the demands of those rules of pleading which prevail in our law as respects other matters. And this observation will be found verified in various adjudged points now to be stated. §p 604. When the name of the particeps criminis is known to the libellant, it must be given in the libel. When it is not known, the fact of its not being known must be stated ; as, for instance, words like the following may be used, — " com- mitted adultery with a person (or with some person) whose name is to your libellant unknown." ^ It has indeed been by some persons urged, that to give in the pleadings the name of the particeps criminis would expose a third person who may be innocent, to scandal, and therefore the name should, when possible, be suppressed. And in a Mississippi case, it was 1 Coote Ec. Pract. 323, 325, 327. ^ Browning Dir. Pract. 136. 8 Germond v. Germond, 6 Johns. Ch. 347; Wood v. Wood, 2 Paige, 108; Gar- rat V. Garrat, 4 Yeates, 244; Church v. Church, 3 Mass. 157; Choate v. Choate, 3 Mass. 391 ; Dunlap v. Dnnlap, Wright, 210 ; Richards v. Richards, Wright, 302; Sanders v. Sanders, 25 Vt. 713; Mansfield v. Mansfield, Wright, 284; Bird r. Bird, Wright, 98; Morrell r>. Morrell, 1 Barb. 318. [478] CHAP. XXXVI.] ADULTERY. § 604 observed by the learned judge, that, though in the particu- lar instance then under consideration the name might well enough have been given, " there are nevertheless good reasons why, in most cases, a different rule should prevail. Persons who are strangers to the controversy, and whose characters would suffer more or less, should not be implicated where they have no opportunity to be heard, unless reasonable cer- tainty in the pleading could not be otherwise attained. As a general rule, it will be sufl&cient to set forth tlie time, place, and particular circumstances of the defendant's guilt, without introducing private scandal, which might subject the party pleading to an action for damages, in consequence of the in- jury thus done to the character of a third party. Reasonable certainty is all that is required, and the court will favor a rule which can attain this end, and at the same time preserve its records from unnecessary scandal." ^ Whatever may be the law of Mississippi, it is not the law of our States generally, that an action for a libel could be maintained against the libellant or his counsel, at the suit of the alleged particeps criminis, for the insertion, in good faith, of this matter in the libel, though the fact should really be contrary to wliat was alleged. The ends of justice require, that the accused per- son in the divorce suit be put in a position to know what he is charged with, and with whom ; and the third person would suffer no more from having the name given, than from being just as distinctly pointed out by a circumlocution. Neither is the scandal worse in a pleading than in viva voce testimony. Dr. Lushington has well observed : " With respect to conse- quences that may result to third parties, however mucli the court may regret if any injustice or misfortune sliould accrue to them, yet justice must be done to suitors ; so that, it is impossible to exclude matter which ought to be admitted in evidence, because, incidentally, it may affect the character and involve the conduct of those who are not parties to the suit. The rejection of matter on any consideration of this 1 Farr v. Farr, 34 Missis. 597, 601. [479] § 606 PKOCEDURE IN SPECIFIC CAUSES. [BOOK VI, kind would lead to great inconvenience and injustice." ^ And the doctrine intimated in the Mississippi court does not prevail in our other States generally. § 605. Not only should the name, when known, be alleged, but the time and place also. In the Mississippi case men- tioned in the last section, the allegation, which was held not to be sufficient, was as follows : " That the said Charles K. Farr [the defendant husband], at various times and upon various occasions since his marriage with complainant, has proven unfaithful to his marriage vow ; in this, that the said Charles K. Parr has been guilty of adultery with a servant- woman of complainant, and with other females, in utter dis- regard of his duties as husband." And it was observed, by Fisher, J. : " The rule appears now to be well settled in this class of cases, that the charge must be made with refer- ence to some particular time and place, that the defendant may be able, not only to anticipate the proof which may be madei against him, but that he may know to what particular time or place to direct his own proof. This allegation puts in issue the defendant's course of conduct during the whole time of the matrimonial connection, a period of more than eight years, and it is not to be presumed that he could, by the use of reasonable diligence, prepare to meet proof that might be made against him by witnesses haying this latitude." ^ § 606. The doctrine is, that the allegations in the libel must be sufficiently specific to enable the defendant to under- stand them, and meet them by his proofs. " The only safe and prudent course," observes Chancellor Walworth, " is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issue in such a man- 1 Croft V. Cioft, 3 Hag. Ec. 310, 320, 5 Eng. Ec. 120, 125. 2 Farr v. Farr, 34 Missis. 597, 600, 601 ; s. P. Clatcli v. Clutch, Saxton, 474 ; Morrell v Morrell, 1 Barb. 318; Christianbury v. Cliristianbury, 3 Blackf. 202; Church V. Church, 3 Mass. 157; Kane v. Kane, 3 Edw. Ch. 389; Burr v. Burr, 2 Edw. Ch. 448 ; Hare v. Hare, 10 Texas, 355. [ 480 ] CHAP. XXXVI.] ADULTEBT. § 607 ner that the adverse party may be prepared to meet it on the trial." ^ When, therefore, the words were, " the complainant doth charge that the said defendant hath, in numerous in- stances, both before and since their separation, committed adultery in this State and elsewhere," the late Chancellor Kent, in a New York case, refused to send the case to a jury to -try the issue, though the defendant had answered denying the allegation, and the plaintiff had filed his replication, — yet he suffered the bill to be amended on terms.^ In an Alabama case, however, it was held, that, if the defendant answers a bill for divorce on the ground of adultery, the bill being defective in not alleging with whom the adultery was committed, or mentioning that the name is unknown to the complainant, this answer is a waiver of the objection, which cannot afterward be taken, though the objection would be fatal if made in proper form and time.^ In a Massachusetts case, the " libel for a divorce," says the report, " charged vari- ous acts of adultery, committed at divers times with persons unknown, for a period of eight years. The respondent moved, that the libel be quashed for uncertainty, or that the libellant be required to file a bill of particulars, at a reasonable time before trial, and be confined, on the hearing, to the case thus specified. Whereupon the court ordered, that a bill of par- ticulars should be so filed." * § 607. To what extent the practice of permitting a libel- lant to supply a defective libel by a specification of particu- lars which, on general principles, should be found in the libel itself, may be resorted to in this country, the writer is not able with any accuracy to state. This practice seems to be allowable at least in Massachusetts and in Pennsyl- vania. In a Pennsylvania case, Yeates, J., observed: "If the adultery be stated to have been committed with E. P. and other lewd persons to the libellant unknown, if their 1 Wood V. Wood, 2 Paige, 108, 113. And see Kane v. Kane, 3 Edw. Ch. 389. '^ Codd V. Codd, 2 Johns. Ch. 224. And see Wood v. Wood, supra ; Morrell v. Morrell, 1 Barb. 318. ' Holston V. Holston, 23 Ala. 777. ♦ Adams v. Adams, 16 Pick. 254. VOL. 11. 31 [ 481 ] § 608 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI names are afterwards known, written notice of them and of times and places should be given to the respondent, a reason- able time before the trial, without requisition. If their names are really unknown, the times, places, and attendant circum- stances should be contained in the specification, so as to give the party charged a fair opportunity of defence against the accusation. Failing therein, I think the complainant: should be precluded from giving particular instances in evidence on the trial on a general charge. Thus the essentials of justice would be preserved, and the party, being forewarned of the specific offence, would have full opportunity of showing his innocence ; and the feelings of individuals, whose names might be inserted on the record on the slightest grounds, and who have no opportunity of defending themselves, would remain unwounded." Tlie judge observes, however, that, without this specification of particulars, it has been not unusual in Pennsylvania to admit evidence, on the general allegation, of the specific matters, but this practice will here- after be avoided.^ In a New York case, before the Vice- Chancellor, where the answer contained a general recrimi- natory charge of adultery, without specifying names, times, or circiimstances, it was held, that the defendant could not, upon making up an issue to try the question of adultery, aid the general charge in his answer by an affidavit as to names, and the rest, so as to have the matter thus generally mentioned in the answer included in the issue.^ § 608. Where, in a Massachusetts case, the libel alleged the act of adultery to have been committed out of the State, with a person unknown, and there was an appearance for the respondent, and the proof showed an act committed within the State, the libellant was permitted to have the divorce prayed. It was observed by the court : " The specific charges in a libel for a divorce for the cause of adultery are required to be made, if the fact be within the libellant's knowledge, ia order that the accused party may not be surprised, and may 1 Garrat v. Garrat, 4 Yeates, 244, 250. '■' Burr v. Burr, 2 Edw. Ch. 448. [482] • CHAP. XXXVI.] ADULTEEY. § 609 be advertised of the subject of his defence. Perhaps it would be better in all cases to hold the libellaiit strictly to those charges. But such has not heretofore been the prac- tice of the court ; and where, as in this case, there is an appearance for the respondent, such strictness may be less necessary." ^ On the other hand, where, in New Hampshire, the allegation in the libel was, that the defendant on a day named and at divers other times, as well before as since that time, committed adultery with a man named, and with divers other persons to the libellant unknown, at HoUis, N. H., and the proof was, that she committed adultery with a person other than the one named, not at Hollis, but at Nashua, N. H., more than two years before the specific day, Gilchrist, C. J., observed : " This is probably insufficient," — but an amend- ment of the- libel, to meet the proof, was permitted.^ " A libel alleging that the respondent committed adultery with a particular person is not sustained by proof of adultery with any otlier person." ^ § 609. In criminal cases, as the reader is aware, there can be no evidence received of the criminal act committed out of the county in which the trial is had ; because it is no offence in this country to have committed the act in another county. But the same rule does not apply to divorce cases. The general principles which govern these matters in civil and criminal jurisprudence may be referred to when the question is one of divorce. But this single suggestion should stand as the guide in most divorce cases ; namely, that the time, the place, and the other circumstances are not of the essence of the offence ; they, therefore, should not be required to be specifically proved, except where the specific proof is necessary to be insisted on in order to prevent surprise to the other party, and preserve good faith in the litigation. 1 Washburn v. Washburn, 8 Mass. 131. 2 Adams r. Adams, 20 N. H. 299, 301. And see further on this point, Germond 0. Germond, 6 Johns. Ch. 347. • ' Adams v. Adams, supra; referring to Germond r. Germond, supra, and Wash- burn V. Washburn, 5 N. H. 195. [483] • § 611 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. § 610. It is quite plain, though there is no specific author- ity on the point, that in certain cases the form of the allega- tion must considerably differ from the form which we have been thus far contemplating. Suppose a wife finds her hus- band has contracted, since the marriage, venereal disease ; and she thinks she can satisfy a court, that this disease came through adultery committed by him, yet she cannot point to the time, place, person of the particeps criminis, or any other specific circumstance connected with the adultery ; or, suppose a husband has been absent from the country a year, . and comes back and finds his wife pregnant ; ^ in these cases, it cannot be sufiicient to allege adultery in general terms, and no more, because the court cannot, until the proof comes, know the case to be one of this sort. Plainly, there- fore, the libel should, besides stating the adultery in general terms, refer to the peculiar nature of the proof by which the allegation is to be supported. In this way, the object of the libellant will be accomplished, and the respondent will be no- tified duly and sufiiciently of the nature of the charge. In accordance with this view, it was held in the English Eccle- siastical Court, that, where in a suit by the wife the husband's adultery is to be proved by the pregnancy of other women than the wife, and his acknowledgment of their children as his, it is not necessary to plead particular acts of adultery .^ § 611. It is hardly necessary to say, that neither in the English practice nor in our own, neither in the Ecclesiastical practice nor in any other, is it any objection to a libel that it contains more than one charge of adultery. It may contain as many as the pleader chooses to put in it. And perhaps in some cases there would be no objection to pleading habitual adultery, in connection with the proper general mention of the persons participating therein, and of time, and o£ place. 1 For a case like this, see Heathcote'a Divorce Bill, 1 Macq. Scotch Ap. Cas. 277. ^ Durant v. Dnrant, 1 Hag. Ec. 733, 746, 3 Eng. Ec. 310.- And see, as farther strengthening this view, Moore v. Moore, 3 E. F. Moore, 84 ; D'Aguilar o. D'Aguilar, 1 Hag. Ec. 773, note, 3 Eng. Ec. 329, 332. [484] CHAP. XXXVI.] ADULTERY. § 613 A matter of this sort came before Dr. Lushington, sitting in the Consistory Court of London, and he observed : " The seventeenth article is objected to, as alleging habitual crim- inal intercourse, without .particular specification of times and of dates. Now, I do not mean to say that this point is not attended witli some difficulty, but yet, I apprehend, I should not be justified in rejecting this article ; if you plead a long duration of time (in this case it is four months) during which a constant and habitual intercourse took place, that is suf- ficient without pleading specific facts ; if you plead circum- stances showing that the intercourse was limited, or of short duration, then you must plead the facts specifically.'' ^ The question, as it presented itself before this learned judge, was indeed somewhat interlaced with those peculiar considera- tions relating to a course of procedure in the taking of evi- dence, whereof we have no parallel in this country ; but it is believed that these views may be suggestive to us regarding our own practice in particular circumstances. II. The Evidence. § 612 [421]. The difficulty most embarrassing in these cases of adultery is generally found to lie in the evidence. A single act of adultery being sufficient to establish a cause, the plaintiff need go no further than show this act by liis testimony. And in an aggravated case, though he will not be limited to proving only one act, yet he will be restrained from going quite uselessly beyond the requirements of the, law.^ § 613 [422]. Adultery is peculiarly a crime of darkness and secrecy ; parties are rarely surprised in it ; and so it not only may, but ordinarily must, be established by circumstan- 1 Graves v. Graves, 3 Curt. Ec. 235, 241. ^ Richardson v. Richardson, 1 Hag. Ec. 6, 3 Eng. Ec. 13. It is so also, ia craelty. Lockwood v. Lock wood, 2 Curt. Ec. 281, 7 Eng. Ec. 114. [485] § 613 PKOCEDUKE IN SPECIFIC CAUSES. [BOOK VI. tial evidence.^ The testimony must convince the judicial mind affirmatively, that actual adultery was committed ; since nothing short of the carnal act can lay a foundation for divorce.^ But a fundamental principle, never to be lost sight of in these cases, is, that the act need not be proved in time and place ; " circumstancjes," says Lord Stowell, " need not be so specifically proved as to produce the conclusion, that the fact of adultery was committed at that particular hour, or in that particular room ; general cohabitation has been deemed enough." ^ And Dr. Lusliington in a late case ob- served : " It is not necessary to prove, that the adultery with which a party is charged should have occurred at any par- ticular time and place. The court must be satisfied, that a criminal attachment subsisted between the parties, and that opportunities occurred when the intercourse in which it is satisfied the parties intended to indulge, might with ordinary facility have taken place." * The court has therefore con- sidered the offence established, when unable, from the evi- dence, to " come to a certain conclusion as to the particular period of time " at which it was committed.^ Yet Dr. Lush- ington has observed : " It is, generally speaking, necessary, as I apprehend, to prove that the parties were in some place together where the adultery might probably be committed. Were it indeed otherwise, it might happen that guilty inten- tion would be mistaken for actual guilt ; and this would be 1 Ayl. Parer. 44, 45 ; Matchin ». Matchin, 6 Barr, 332 ; Williams v, Williams, 1 Hag. Con. 299, 4 Bng. Ec. 415 ; Richardson v. Richardson, 4 Port. 467; Law- son V. The State, 20 Ala. 65; Mosser v. Mosser, 29 Ala. 313 ; Inskeep v. Inskeep, 5 Iowa, 204. 2 Hamerton v. Hamerton, 2 Hag. Ec. 8, 4 Eng. Ec. 13, 16, 19. " Loveden v. Loveden, 2 Hag. Con. 1, 4 Eng.' Ec. 461, 462 ; Caton v. Caton, 13 Jur. 431, 432 ; Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Be. 232, 234 ; Tucker ». Tucker, 11 Jur. 893,894; Dailey w. Dailey, Wright, 514; Hamerton V. Hamerton, supra. " It will be sufficient, if the court can infer that conclusion, as it has often done between persons living in the same house, though not seen in the same bed, or in any equivocal situation." Lord Stowell, in Burgess v. Bur- gess, 2 Hag. Con. 223, 226, 4 Eng. Ec. 527, 529. And see The State v. Poteet, 8 Ire. 23. * Davidson v. Davidson, Deane & Swabey, 132, 135. 6 Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3, 16. [486] CHAP. XXXVI.] ADULTERY. § 614 contrary to all principles of justice, as well as to known rules of jurisprudence." ^ § 614 [423]. " Courts of justice," said Lord Stowell, " must not be duped. They will judge of facts, as other men of dis- cernment, exercising a sound and sober judgment on circum- stances that are duly proved," judge of them.^ " The only general rule," he observed on another occasion, " that can be laid down upon the subject, is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion ; ^ for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations,* neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The facts are not of a technical nature ; they are facts determinable upon common grounds of reason ; and courts of justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtilties, and remote and artificial reasonings upon siich subjects. 1 Caton V. Caton, snpra. 2 Chambers v. Chambers, I Hag. Con. 439, 4 Eqg. Ec. 445, 448. ' s. p., see Mulock v. Mulock, 1 Edw. Ch. 14 ; Richardson v. Richardson, 4 Port. 467, 475 ; Day v. Day, 3 Green Ch. 444 ; Ferguson v. Ferguson, 3 Sandf. 307 ; Inskeep v. Inskeep, 5 Iowa, 204. Sir George Hay observed : " Ocular proof is'seldom expected ; but the proof should be strict, satisfactory, and conclusive." Rix V. Rix, 3 Hag. Ec. 74, 5 Eng. Ec. 21. "It Is physically possible," observes Lord Stowell, " that persons may be in the same bed together without criminal intercourse. Courts of justice, however, cannot proceed on such ground ; finding persons in such a situation as presumes guilt generally, they must presume it in all cases attended with these circumstances." Cadogan v. Cadogan, 2 Hag. Con. 6, note, 4 Eng. Ec. 462 ; Van Epps v. Van Epps, 6 Barb. 320 ; Burchet v. Burchet, Wright, 161 ; Bryant v. Bryant, Wright, 156. But see The State v. Way, 6 Vt. 311. * When the facts relied upon are equally capable of two interpretations, one of which is consistent with the defendant's innocence, they will not be sufScient to establish guilt. Ferguson v. Ferguson, 3 Sandf. 307. And see Kirby v. The State, 3 Humph. 289. [487] ^ 616 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. Upon such subjects, the rational and legal interpretation must be the same." ^ § 615 [424] . But this learned judge in another case said : " I take the rule to be, that there must be such proximate cir- cumstances proved, as, by former decisions, or on their own nature and tendency, satisfy the legal conviction of the court that the criminal act has been committed. The court will look with great satisfaction to the authority of established precedents ; but where these fail, it must find its way as well as it can, by its own reasoning on the particular circum- stances of the case." ^ And the proof must be, by legal evi- dence, applicable to a legal charge.' Nor will the adultery be taken as proved merely because a witness testifies to it ; for the court must be satisfied the witness is honest, not mistaken, his testimony true.* When the testimony is cred- ited, the facts it establishes will be viewed, not only sepa- rately, but in conjunction ; for they interpret each other ; and in combination they may lead to the inference of guilt, when separately they would not.^ § 616 [425]. " Nor," observes Shaw, C. J., " can this course of inquiry and process of reasoning and judging be much aided by technical and artificial rules, or by what are con- sidered established presumptions of fact from other facts. These rules are" useful and convenient in their way, in sug- gesting general considerations, which are applicable to many ■ cases ; but, after all, they are to be taken with so many exceptions and so much allowance, that in the result each 1 Loveden v. Loveden, 2 Hag. Con. 1, 4 Eng. Ec. 461, 462. This may be con- sidered the leading case upon the principles of evidence relating to this topic. 2 Williams ». Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415. ' Caton V. Caton, 13 Jur. 431, 433 ; Simmons v. Simmons, 11 Jur. 830, 5 Notes Cas. 324 ; ante, § 278. There must be both allegation and proof. Foy v. Eoy, 13 Ire. 90, 95. * Bray v. Bray, 2 Halst. Ch. 506. 628. And see post, § 620. ' Burgess v. Burgess, 2 Hag. Con. 223, 228, 4 Eng. Ec. 527, 530 ; Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3, 16. [488] CHAP. XXXVI.] ADULTERY. § 617 case must depend mainly upon its own peculiar circum- stances. It is impossible, therefore, to lay down beforehand, in the form of a rule, what circumstances shall and what shall not constitute satisfactory proof of the fact of adultery ; because the same facts may constitute such proof or not, as they are modified and influenced by different circumstances. Suppose, for instance, a married woman had been shown, by undoubted proof, to have been in an equivocal situation with a man not her husband, leading to a suspicion of the fact. If it were proved that she had previously shown an unwar- rantable predilection for that man ; if they had been detected in clandestine correspondence, had sought stolen interviews, made passionate declarations ; if her affection for her hus- band had been alienated ; if it were shown that the mind and heart were already depraved, and nothing remained wanting but an opportunity to consummate the guilty pur- pose, — then proof that such opportunity had occurred, would lead to the satisfactory conclusion that the act had been com- mitted. But when these circumstances are wanting ; when there has been no previous unwarrantable or indecent inti- macy between such parties; no clandestine correspondence, or stolen and secret interviews ; the fact of opportunity and equivocal appearances would hardly raise a passing cloud of suspicion over the fair fame of such a woman. But though it is easy to pronounce with confidence between cases thus distinctly and broadly marked by the circumstances, yet rules of evidence drawn from them afford little aid in complicated cases, where minute shades of difference may vary the aspect of the proofs ; and more especially where there is a direct con- flict of testimony ; where some of the testimony must be false ; and where constant caution is necessary in weighing the credit due to witnesses, to prevent being misled by some or other of these false lights."^ § 617 [426]. It has therefore been deemed particularly im- portant to show circumstances leading to the adultery, ren- 1 Dunham v. Dunham, 6 Law Beporter, 139, 141. [489] § 618 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. dering the commission of it probable ; and the absence of such circumstances in evidence has been considered a strong indication against the party pursuing. " It is true," observes Dr. Lushington, " that in almost all cases adultery is clan- destine ; but it is equally true, in the great majority of cases, where the parties are cohabiting together, that, after the dis- covery of the fact of adultery, evidence is produced to show that it is probable This is a species of evidence the court always looks for; indeed requires, wherever the cir- cumstances allow of its production, as was frequently ob- served by Lord Stowell."^ In another case, where the chatge was against the wife, the same eminent judge observed : " I have certainly felt pressed by the absence of all proof of indecent familiarity, of all proximate acts which might rea- sonably have been expected during this long intuuacy. I have felt, too, that such a connection could hardly subsist without connivance, which I am not justified in suspect- ing. On the other hand, there is a long-continued intimacy, scarcely to be explained as consistent with innocence. The going into her bedroom, the nursing her child in his presence, his attention to the child, and the quarrel with her husband on his account, and no attempt at defence, and a child born during this intimacy, — looking at all these facts, I think I ami judicially warranted in pronouncing the adultery proved with M. St. Rose ; although I do not attempt to conceal that I have arrived at this result with some difficulty."^ § 618. And there is a case which came before the present English Matrimonial Court, in which the learned judges refused to give credit to the charge of adultery against a woman who for twenty years had been exemplary in her married life, though the charge was testified to by those who. professed to be eyewitnesses. Said Cresswell, J. : " There is not a tittle of evidence to show that during the whole period 1 Dillon V. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 383 ; Croft v. Croft, 3 1 Ec. 310, 5 Eng. Ec. 120. ^ Caton V. Caton, 13 Jur. 431, 434. [490] CHAP. XXXVI.] ADULTERY. § 619 of their cohabitation, she had done anything to raise the sHghtest suspicion of her infidelity in the mind of her hus- band, or that up to the time of the alleged adultery she had in any way misconducted herself. The court is now called upon to believe that Mrs. Alexander at once, without any preparation, condescended to disgrace herself with a groom who had been about two months in her husband's service, with so little regard for delicacy, with so little regard as to whether she was discovered or not, that she was guilty of acts of adultery with him in the face of day, without taking the precaution of pulling down a window-blind, or closing a wash- house door."^ § 619 [427]. Every act of adultery implies three things: first, the opportunity ; secondly, the disposition in the .mind of tlie adulterer ; thirdly, the same in the mind of the par- ticeps criminis. And the proposition is substantially true, that wherever these three are found to concur, the criminal fact is committed.^ This proposition, however, should in reason be qualified thus : if these three things do concur, still the parties may not know the state of each other's minds 1 Alexander v. Alexander, 2 Swab. & T. 95, 101, 102. ^ Daridson v. Davidson, Deane & Swabey, 132 ; Inskeep v. Inskeep, 5 Iowa, 204; Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238; Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec. 160; Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232. In the last cited of these cases, which was a divorce suit against the husband, Dr. Lushington observed : "It is then in evidence, that not merely was there a criminal attachment, but also that this attachment was not rejected ; that Jeffrey [the alleged parliceps criminis] admitted his familiarity, received his correspondence, that opportunities were constant ; and there is nothing to show on her [Jeffrey's] part, resistance, nor repudiation, nor that she at all discountenanced his passion. To doubt, from such circumstances, that the consummation followed, would be to presume, that the effect was not consequent on the natural cause ; and that this was a case of extraordinary exception and singular innocence." See also Soilleux v. Soilleux, 1 Hag. Con. 373, 4 Eng. Ec. 434, where Lord Stowell observed : " When the criminal disposition of the man has been most satisfactorily proved, and when it is also proved that the conduct of this female was so different on former occasions when she had withstood his attacks, — if, after such a situation as is described in the evidence, she ceases to complain, her silence and submission furnish the strongest presumption, that his attempt here had been more success- ful." [491] § 620 PROCEDURE IN SPECIFIC CAUSES. [BOOK VL on the subject, or they may be restrained by fear, or they may be under some temporary incapacity, or temporary ab- sence of desire. And plainly wherever they do not concur, the offence is not committed. The proof of their concurrence may lie in detached testimony, no one witness being able to establish more than a single one or two of the links in the chain, or it may come in any other form. § 620 [428]. While circumstantial evidence usually pro- ceeds on one or another of the before-mentioned propositions, it may proceed on quite different ones ; as where adultery is proved against the wife, by showing the husband's non- access, and the birth of a child.^ And the proposition by which we test the sufficiency of circumstantial evidence is, that if the facts proved cannot be reasonably reconciled on the assumption of innocence, but are harmonious with the assumption of guilt, the court will infer guilt. On the other hand, if the facts can be reasonably reconciled on the as- sumption of innocence, or cannot be so on the assumption of guilt, the court will not infer guilt.^ Circumstances merely suspicious are insufficient,^ though there are degrees of im- prudence from which the offence will be presumed.* 1 Caton V. Caton, 13 Jar. 431; Richardson v. Richardson, 1 Hag. Ec. 6, 11, 3 Eng. Ec. 13, 15; Commonwealth v. Shepherd, 6 Binn. 283; ante, § 610. " Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec. 160 ; Dailey v. Dailey, Wright, 514; Langstaff r. Langstaff, Wright, 148; Ferguson «. Ferguson, 3 Sandf. 307; Inskeep v. Inskeep, 5 Iowa, 204. = Cooper V. Cooper, 10 La. 249; Grant v. Grant, 2 Curt. Ec. 16, 55, 7 Eng. Ec. 3, 15; Eraser u. Eraser, 5 Notes Cas. 20. In Johnston v. Johnston, Wright, 454, a witness testified : " I haye seen him [the defendant] at the house of Susanna Lines, late and early, to the neglect of his own woman ; I have seen him hugging and nursing her in company, and I verily helieve I might have seen more if I had wished." The court observed, that adultery might be suspected, but it was not proved. See Wood v. Wood, 2 Paige, 108, 112, for the statement of a strong case, where there was a verdict, apparently well founded, finding the adultery proved against a defendant who was aftferwards shown to be innocent. In a recent English case also, the evidence against the wife was quite strong, resting however on circumstances ; but she proved to the satisfaction of the court, by the testimony of * Chambers ». Chambers, 1 Hag. Con. 439, 4 Eng. Ec. 445, 448. [492] ^ CHAP. XXXVI.] ADULTERY. § 621 § 621 [429]. The stronger the affection, and the more per- fect the concord, between married persons, the less likely is it that adultery will be committed. Therefore the terms on which the parties cohabited have been considered a material circiimstance in this issue.^ Thus, the withdrawal of the attachment of the defendant wife from her husband and fam- ily ;2 her expressions of strong dislike toward him and his fapiily ; ^ alienation of feeling by the defendant husband from his wife ; * his desertion of her ; ^ are severally admissible, though not alone sufficient, in proof of the adultery. On other grounds, amicable intercourse between the husband and wife during the pendency of the suit, and while they are not in actual cohabitation, may be shown in defence ; for this is sometimes thought to be inconsistent with the belief in the mind of the plaintiff, that the adultery he alleges has really been committed.® So if the husband prosecuting a suit had, before the alleged adultery, manifested a wish to surgeons who examined her person, that she was virgo intacta, having never been known by man. This case is remarkable, because she had already lived with her hnsband eight years. There was evidence of the husband's admission, that he had not himself consummated the marriage. Hunt v. Hunt, Deane & Swabey, 121. 1 Dillon V. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377 ; Richardson v. Richardson, 4 Port. 467, 474. " Catou V. Caton, 13 Jur. 431, 432. 8 Croft V. Croft, 3 Hag. Ec. 310, 5 Eng. Ec. 120, 122. * Richardson v. Richardson, 4 Port. 674 ; Saunders v. Saunders, 10 Jur. 143, 144. * Caton V. Caton, supra; Eenrick v. Kenrick, 4 Hag. Ec. 114, 138. ° Dillon V. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 381. In actions for criminal conversation, it is sometimes important for the plaintiff to show, that his wife was on terms of affection with him, before the defendant seduced her ; and for this pur- pose, her letters, written either to the husband or to third persons, anterior to the attempted seduction, are admissible. Trelawney v. Coleman, 1 B. & Aid. 90, 2 Stark. 191 ; Willis v. Bernard, 8 Bing. 376, 1 Moore & S. 584, 5 Car. & P. 342; Elsam V. Fancett, 2 Esp. 562 ; Edwards v. Crock, 4 Esp. 39 ; Houliston v. Smyth, 2 Car. & P. -22, 24, 3 Bing. 1 27, 10 J. B. Moore, 482 ; Wilton v. Webster, 7 Car. & P. 198. So a witness who is acquainted with the wife may give his opinion, formed in consequence of such acquaintance, as to her affection for her husband. Tre- lawney ». Coleman, 2 Stark, supra. As illustrating which point, see Campbell d. The State, 23 Ala. 44. See also Leary v. Leary, 18 Ga. 696. [493] § 623 PROCEDUEE IN SPECIFIC CAUSES. [BOOK VI. get rid of his wife, this will be deemed a circumstance to be weighed against him.^ § 622 [430]. In the practice of the Ecclesiastical Court, it was customary for the husband, proceeding on the allegation of his wife's adultery, where the parties had lived some time apart, to plead, in his libel, that he made her a competent al- lowance. And she was permitted in her responsive allega- tion, to contradict the averment, and state what provision he did make. We have already seen, that it could not affect the legal rights of the parties, whether he made her a com- petent allowance, or deserted her, or not.^ Dr. Lushington has observed : " I cannot conceive that the issue of this case can be determined by this question; still, I think the wife may be permitted to show, that she had no competent main- tenance ; and perhaps, in this case, it may be of importance to explain how, and why, and where she lived." ^ The sug- gestion should be made, however, for the guidance of Ameri- can practitioners not familiar with the ecclesiastical practice, that this form of allegation has reference rather to the evi- dence, than to the rights sought to be established ; and so it is not to be followed with us, as a matter of pleading. At the same time it sliows us, that evidence on this point seems to be admissible under the proper circumstances ; but it is deemed, that the proper circumstances for its admission would very rarely arise. § 623 [431] . Evidence of cruelty, as showing the terms of the matrimonial cohabitation, has always been received to strengthen the other proofs of adultery ; though cruelty is itself a separate ground of divorce.* " It adds," observes Lord Stowell, " greatly to the probability that such a charge is well founded, if it appears that " the defendant husband's 1 Bray v. Bray, 2 Halst. Ch. 506, 628. 2 Ante, § 88. " Grant v. Grant, 10 Jar. 103. * Cocksedge v. Cocksedge, 1 Bobertson, 90, 94, 95 ; Beach u. Beach, 11 Paige, 161; Smith v. Smith, 2 Phillim. 67, 1 Eng. Ec. 190; Eldred j>. Eldred, 2 Curt. Eo. 376, 7 Eng. Ec. 144. And see ante, § 58-60, 80, note. [494] CHAP. XXXVI.] ADULTERY. § 624 " affections were visibly estranged from his wife, and there- fore more likely to be diverted to other less worthy objects." ^ § 624 [432]. There is a New York case, which came before Vice-Chancellor McOoun, on the wife's bill, charging the husband with adultery; wherein, after a feigned issue as to this fact had been tried at common law and returned to the Vice-Chancellor's Court, a motion was made to set aside the verdict, on the ground, in part, that the common-law judge had admitted improper testimony to the jury. The fact was, that the common-law judge had permitted the plaintiff wife to prove acts of cruelty, for the purpose of showing, 1st, the husband's affections alienated ; 2d, a course of abuse, from the time of his connection with the other woman, down to and terminating in the separation from the wife ; 3d, such cruelty having resulted from his connection with the other woman, as part of a plan to drive the wife from his house, and render the improper intimacy more easy to be carried on. The Vice-Chancellor overruled the motion ; and said, that he was of opinion the judge " was substantially right in the decision." But his observations showed a tendency of mind toward confining this class of evidence within narrower limits than the reasons we have just considered, and the English decisions, would seem to indicate. He said : " The acts of cruelty to be shown in evidence would have to be immedi- ately, and not remotely, connected with the circumstances of adultery, so as to form one series of aggression on the part of the husband. As for instance, suppose that after a hus- band's intimacy with a paramour, and while he was pursuing a course of conduct totally inconsistent with his duty and fidelity as a husband (with evidence of some particular act, which might well be construed into a consummation of the offence, or, at least, afford a strong presumption against him), he should become abusive towards his wife, and follow it up by blows, or other personal injury, so as finally to drive her 1 Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 360; s. p. Arkley v. Arkley, 3 Phillim. 500, 1 Eng. Ec. 461. [495] § 625 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. from his housp, and should then receive the other into it ; — I think tliis would be evidence proper to go to the jury, as showing, in the first place, the alienation of the husband's affections, and, in the second place, the quo animo, or inten- tion, with which the cruelty was inflicted : — ■ a just ground of inference would in such case be afforded, that his intimacy with the other woman was of an illicit and adulterous charac- ter, although it might not of itself, and disconnected from other circumstances, amount to evidence of adultery." ^ § 625 [433]. So, also, as showing an adulterous intent, it is competent to give in evidence, not only the defendant's im- proper familiarities with the alleged particeps criminis, at times anterior to the fact charged,^ and at times concurrent with the fact,^,but also his unsuccessful solicitations of the chastity of other women.* . And in the ecclesiastical practice, the plaintiff husband has been permitted to plead, that the conduct of his wife during his absence, was so indecorous as to induce a lady with whom she resided to recommend her removal to her mother : ^ this, however, is no example for us, in point of practice, only it shows that libidinous conduct in the wife is admissible in evidence against her. In a case wherein the evidence did not amount to judicial proof of the ' Mulock V. Mulock, 1 Edw. Ch. 14. la New York, cruelty is ground of divorce from bed and board only — adultery, from the bond of matrimony — and the two cannot there be united in one bill. In England, each is a ground of divorce from bed and board, and they may be joined. Vice-Chancellor McCoun intimated in this case, that a distinction would thence arise as to the extent to which cruelty might be evidence of adultery. But this suggestion appears to be fully met, first, by the reason of the English rule ; secondly, by the fact, that in England cruelty may always and without limit be introduced into a recriminatory allegation of adultery, in a suit for adultery, though adultery is the only legal bar. See ante, § 80, note. 2 The State v. Wallace, 9 N. H. 515 ; Burgess v. Burgess, 2 Hag. Con. 223, 4 Eng. Be. 527; Commonwealth v. Merriam, 14 Pick. 518; Norfolk v. Germaine, 12 Howell St. Tr. 929, 945 ; Commonwealth v. Lahey, 14 Gray, 91. 8 The State v. Marvin, 35 N. H. 22. * Eorster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 362 ; Soilleux v. Soil- leux, 1 Hag. Con. 373, 4 Eng. Ec. 434. And see Bray v. Bray, 2 Halst. Ch. 628. But see Washburn v. Washburn, 5 N. H. 195. s Croft V. Croft, 3 Hag. Ec. 310, 5 Eng. Ec. 120, 123. [496] CHAP. XXXVI.] ADULTERY. § 626 wife's adultery, but her conduct had been so culpable as to raise strong suspicions of criminality, and induce the court to rescind the conclusion to admit further evidence ; proof that, during the progress of the suit, the alleged particeps criminis had frequently visited her alone, and remained late at night, was received as sufficiently strengthening the former proof to justify the sentence of divorce.^ § 626 [434]. If a married man associates with prostitutes^ or visits a brothel, without any apparent motive, and espe- cially if when there he shuts himself up in a room with a common prostitute, — it must be inferred, in the absence of proof to the contrary, that he does this with the intent of committing adultery ; and, as the opportunity and the un- doubted consent of another party concur with his own intent,' the offence must be presumed to be committed.* Lord Stow- ell has observed : " The act of going to a house of ill-fame is characterized by our old saying, that people do not go there to say their paternoster ; that it is impossible they can have gone there for any but improper purposes ; and that it is uni- versally held a proof of adultery." ^ So if a married woman is seen going into a house of ill-fame with a man not her husband,^ or unattended,^ that is alone sufficient evidence of. her adultery. And this species of proof has been considered to be more stringent when produced against the woman than 1 Hamerton v. Hamerton, 3 Hag. Ec. 1, 5 Eng. Ec. 11. Facts tending to show adultery subsequent to the adulterous acts in issue would seem to be admissible or not, according as a connection is established or not, between the earlier and later transactions. Lawson v. The State, 20 Ala. 65 ; The State v. Crowley, 13 Ala. 172. See also 1 Greenl. Ev. § 47. 2 Ciocci r. Ciocci, 26 Eng. L. & Eq. 604, 1 Spinks, 121. ' Ante, h 619. * Astley V. Astley, 1 Hag. Ec. 714, 3 Eng. Ec. 303 ; Kenrick v. Kenrick, 4 Hag. Ec. 114, 124, 132 ; "Van Epps v. Van Epps, 6 Barb. 320 ; LangstafF v. Langstaff, Vi^'right, 148 ; Richardson v. Richardson, 4 Port. 467, 474. But see Belts v. Belts, 1 Johns. Ch. 197. ' LoTcden v. Loveden, 2 Hag. Con. 1, 24, 4 Eng. Ec. 461, 472. « Best V. Best, 1 Add. Ec. 411, 3 Eng. Ec. 1,58, 170; Woodw. VCood, and other authorities cited, 4 Hag. Ec. 138 ; Matchin v. Matchin, 6 Barr, 332, 338. T Eliot V. Eliot, cited in Williams n. .Williams, 1 Hag. Con. 299, 4 Eng. Ee. 415,417; Ayl. Parer. 45. VOL. n. 32 [ 497 ] § 628 ■ PKOCEDUEE IN SPECIFIC CAUSES. [BOOK VI. 'the man.i Obviously, however, such a visit is open to ex- j plauation ; as it may be one of philanthropy,^ or of accident, or even of lawful business, which should not be construed into an act of guilt. § 627 [435]. The visit of a wife to the lodgings or house of a single man may be a suspicious circumstance, and, con- nected with other circumstances, sufficient ; but it will not alone establish guilt.^ Thus, where the windows were shut, and there were letters which could not be otherwise explained, such a visit was held to complete the proof.* But in a recent case of this complexion, already referred to,^ the wife extri- cated herself from the pressure of presumption against her, by showing herself to be a virgin, never known by man.^ § 628 [436] . Proof that a fact of marriage was celebrated between the defendant and the alleged particeps criminis does not itself go quite far enough ; for it is still necessary to show a dwelling together, or an actual criminal intercourse.' But the further proof of an ostensible living together as husband and wife will suffice in such a case.^ Where there was no celebration of marriage shown, the court refused to infer adultery from the mere unaided fact of the defendant and a woman living in the same house together, under the reputa- tion of being married, while they were not.® But if he gave currency himself to the repute, the evidence plainly would be stringent ; and, in a case where there was no suspicion of collusion, it should, on principle, be deemed satisfactory.^" 1 Astley V. Astley, supra. 2 For an interesting case, in which the defence of philanthropy was set up and failed, see Ciocci v. Ciocci, 26 Eng. L. & Eq. 604, 1 Spinks, 121. » Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415, 417. * Ricketts v. Taylor, cited in Williams v. Williams, supra. 5 Ante, 5 620, note. * Hunt v. Hunt, Deane & Swabey, 121. T Beemie v. Keemie, 4 Mass. 586 ; Wilson v. Wilson, Wright, 128 ; post, § 639. And see Ellis d. Ellis, 11 Mass. 92 ; Cayford's case, 7 Greeul. 57. 8 Nash V. Nash, 1 Hag. Con. 140, 4 Eng. Ec. 357 ; Masten ». Masten, 15 N. H. 159, 161. » Hart V. Hart, 2 Edw. Ch. 207. w Post, § 629. [498] CHAP, xxxvl] adultery. § 631 § 629 [437], Pacts in themselves inconclusive may be made conclusive by proof of falsehood or concealment on the part of the offender. Thus, where the wife conceals from her husband meetings with the alleged paramour,^ or conceals her having correspondence with him,^ or the fact of his lodging at the house in the husband's absence ; ^ where the husband pretends, that a young woman with whom he is intimate is his niece, while she is not so ; * or, a fortiori, where a woman calls herself by a false name, and occupies the same room with a man not her husband, only one bed being in the room, for eight or nine months,^ — adultery may, under the requisite attendant circumstances, be presumed. But a man will not ordinarily be supposed to have com- mitted this offence, if his wife and child were on the same bed with him and the alleged particeps criminis.^ § 680 [438]. Proof that the accused husband gave the woman presents of money, and articles of dress and orna- ment, may, in the absence of explanation, furnish strong suspicion, and, in connection with other evidence, establish the offence.'^ Says an old Scotch writer : " The ordinary presumptions are, the being oft alone together, gifts, love- letters, close doors, the wife's being abroad all night, nvdus cum nudd, et solus cum sold, the entertaining persons that are known to be pimps." ^ § 631 [439]. In considering presumptions of this nature, we should regard the peculiar modes of life of the parties, 1 Bramwell ii. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232 ; Elwes v. Elwes, 1 Hag. Con. 269, 4 Eng. Ec. 401, 402. 2 Loveden v. Loveden, 2 Hag. Con. 1, 4 Eng. Ec. 461, 469, 470 ; Lockwood v. Lockwood, 2 Cart. Ec. 281, 7 Eng. Ec. 114, 124; Morse v. Morse, 2 Hag. Ec. 608, 4 Eng. Ec. 220. ' Grant v. Grant, 2 Cnrt. Ec. 16, 7 Eng. Ec. 3. * Kenrick ». Kenrick, 4 Hag. Ec. 114, 129 ; Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec. 160, 167. ' Scroggins v. Scroggina, Wright, 212. 5 Scott V. Scott, Wright, 469 ; Smith v. Smith, Wright, 644. ' Cocksedge v. Cocksedge, 1 Kobertson, 90, 98. ' McKen. Crim. Law,. 177 . [499] § 632 PROCEDURE m SPECIFIC CAUSES. [BOOK VI. and the habits of the community wherein they dwell .^ " Equal presumptions," says Poynter, " do not always follow similar facts ; for the weight of presumption varies with cir- cumstances, and with none more than with the rank and con- dition, the situations and habits, of the parties. For it must be kept in mind, that, in different ranks of life, and in differ- ent countries, different modes of education, and different notions and manners prevail ; for instance, there are many freedoms which, in the unreserved contact of humble life, continually take place without imputation ; whilst an equal license in classes of a higher order, and of a more refined education, would naturally lead to a very different conclu- sion." ^ So where the parties are near of kin,^ or sustain the" relation of physician and patient,* a carnal intercourse will be less readily inferred ; and, according to the old canonists, if a clergyman is found embracing a woman in some secret place, this does not, as in the case of other people, prove adultery, for " he is not presumed to do it on the account of adultery, but rather on the score of giving his benediction, or exhorting her to penance," ^ — a good illustration of the prin- ciple, though few judges in modern times would yield so much to clerical virtue as this application of the , principle implies. But too great latitude should not be given to con- siderations of this nature, to the exclusion of the more ob- vious import of the evidence.® § 632 [440]. Sufficient primd facie proof of a husband's Adultery has been deduced from the fact, that, long after 1 Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec. 160, 169 ; Loveden ». Loreden, 2 Hag. Con. 1, 4 Eng. Ec. 461 ; Lawson v. The State, 20 Ala. 65. 2 Poynter Mar. & Div. 187. 8 Eenriek v. Kenrick, 4 Hag. Ec. 114, 129. And see GrifiSths v. Reed, 1 Hag. Ec. 195, 3 Eng. Ec. 79. * Dunham ». Dunham, 6 Law Reporter, 139. 6 Ayl. Parer. 51. In the Scotch case of King v. King, 4 Scotch Sess. Cas. N. S. 567, this canonical defence was pertinent to the facts, but was not relied on. o Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3, 14. [500] CHAP. XXXVI.] ADULTERY. § 632 marriage, he was infected with venereal disease.^ When the disease develops itself soon after marriage, this conclu- sion does not follow ; because antenuptial misconduct may have produced it.^ But even in the former case, if we look to reason rather than authority, we shall find it necessary for some evidence to appear that he was not infected by his wife ; for, in so intimate a relation, where the disease of the one party must almost of course extend to the other, how can the court, in the absence of proof, charge the guilt specifically upon either ? * And, looking again to authority, where in CoUett V. CoUett there was an attempt to establish adultery against the husband by showing the wife to be suffering under a recent infection, "Dr. Lushington considered this fact not alone sufficient, since she might have contracted the dis- ease from another. " It is impossible," he adds, '' to lay down any general inflexible rule ; for each case must depend upon its own circumstances, and it is scarcely possible to conceive a case without some circumstances which would assist the court in coming to a conclusion." And this learned judge held the attending circumstances, then under his con- sideration, sufficient.* In this conclusion he was sustained, on appeal, by the Dean of the Arches ; but overruled, on further appeal, by the Judicial Committee. In the latter covirt the doctrine was laid down, that the adultery of the husband cannot be inferred from the mere fact of the wife's being tainted with venereal disease, although she herself is not even suspected of adultery ; that the existence of such dis- ease in the wife is consistent with the adultery of the hus- band, with her own adultery, and with accidental communi- cation of it ; and that, where there is no proof of the hus- band's having been himself diseased at the time specified in the libel, it will not be ascribed, by preference, to the first 1 Johnson c^. Johnson, 14 Wend. 637, per Savage, C. J. ; Popkin u. Popkin, 1 Hag. Ec. 765, note, 3 Eng. Ec. 325, 326. ^ Popkin V. Popkin, supra. ^ ggg ante, § 614, note. * Collett n. CoUett, 1 Curt. Ec. 678, 686. [501 J § 635 PEOCEDUEE IN SPECIFIC CAUSES. [BOOK VI. of these causes, even though it appears, that, at a former time, he had infected his wife.^ § 633 [440 a] . Concerning the evidence which arises from one or the other or both of the parties liaving the venereal disease, if we reject the idea, certainly somewhat prevalent, that accident- may bring the disease where the usual cause does not exist ; and if in a particular case, the disease is found to have a recent origin, long- after the marriage, — then the conclusion is plain, that one or the other of the parties, or both of them, must have offended. Now, this being conceded, how shall we determine at whose door to lay the guilt ? Often this cannot be ascertained ; but, in a case of this kind, consulting reason rather than specific au- thority, evidence should be received of the entire course of life, and the associations and temptations, of the parties severally, the result of which would be, that sometimes the judge might become quite satisfied in the matter, sometimes not ; and the divorce would be granted only when he was satisfied. § 634 [441]. Stains upon the husband's linen, though, it seems, admissible in proof, are not alone sufficient evidence of his adultery ; since they do not necessarily establish even his infection with venereal disease. There may be discharges from other causes, which, when dry, would so nearly resemble those of syphilitic origin, as to render it impossible to distin- guish the one from the other.^ § 635 [442]. Another presumption sometimes relied upon in these cases is, that, when an adulterous intercourse is once shown to exist between persons, and they are still living together, or under the same roof, the unlawful connection 1 Collett ». CoUett, Jud. Com. of Privy Council, July 14, 1840, Wadd. Dig. 38. See also Stone v. Stone, 3 Notes Cag. 278, 290. ^ Ferguson v. Ferguson, 1 Barb. Ch. 604. [502] CHAP. XXXVI.] ADULTERT. § 635 also is deemed to be continuing.^ And as a general propo- sition, wlien adultery between two persons is proved to have taken place, less evidence will suffice to establish a continua- tion of it, than would be necessary to establish the first offence.^ But some of the cases seem to hold, that one of the parties is not permitted to prove, in the first instance, antenuptial incontinence in the other, and then call in the aid of this presumption ; ^ either because it would be con- trary to good policy to allow such a course of proof to be pursued, or because a person entering marriage is under- stood to abandon unlawful pleasures. Yet in other cases, English, American, and Scotch, the antenuptial and post- nuptial conduct have, under the circumstances of those cases,^ been very properly connected together ; * and we may conse- quently find some embarrassment in saying what precise latitude should be given to the doctrine just announced. There appears also to be a doubt whether, if condonation has passed, the condoned adultery* may then be shown as foundation for inferring the subsequent adultery.^ Looking at these questions in the light of principle, we conclude, that, whenever a condonation has passed, or a marriage has taken place, a presumption arises of the party having abandoned all former connections. But where there is new and inde- pendent evidence pointing to a connection subsequent to the period of condonation or marriage, — not merely a living in the same house, but pertinent evidence directly pointing, — 1 Smith u. Smith, 4 Paige, 432 ; Beeby v. Bee})y, 1 Hag. Ec. 789, 3 Eng. Ec. 338, 342; Tarton v. Turton, 3 Hag. Ec.'SSS, 5 Eng. Ec. 130, 136. ^ Armstrong v. Armstrong, 32 Missis. 279. = Graves v. Graves, 3 Curt. Ec. 235, 7 Eng. Ec. 425, 427 ; Best v. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158, 169 ; Perrin v. Perrin, 1 Add. Eo. 1, 2 Eng. Ec. 11 ; Devall V. Devall, 4 Des. 79. * Ciocci V. Ciocci, 26 Eng. L. & Eq. 604, 627, 1 Spinks, 121 ; Latham v. Proven, 2 Scotch Sess. Gas. new ed. 250 ; "Van Epps v. Van Epps, 6 Barb. 320 ; Bray v. Bray, 2 Halst Ch. 628. And see Simmons o. Simmons, 11 Jur. 830, 5 Notes Cas. 324. In Connecticut, on a charge of keeping a house of ill-fame, the prose- cutor was permitted lo show, that the defendant's house was such anterior to the time when the statute, prohibiting the offence, went into operation, as aiding the proof of its character afterward. Caldwell r. The State, 17 Conn. 467. ' Ante, § 60. [503] § 637 PKOCEDUBE IN SPECIFIC CAUSES. [BOOK VI. then the former connectioa may be shown as giving force to the inference of subsequent misconduct. § 636. This question, as respects incontinence committed before and after marriage, came before Dr. Lushington, in the Consistory of London, in 1854. He said : " No doubt, as a general rule, it is not competent to the husband or the wife to plead illicit intercourse prior to the marriage; be- cause the doctrine universally maintained is, that marriage operates as an oblivion of all that has passed, and as oblivion of all that can possibly have occurred But the ques- tion which I have now to decide is, whether the special facts of this case do not make it an exception to the rule. The first fact to be noticed is, that the woman, with whom con- nection is pleaded before marriage, is continued in the ser- vice of the husband after marriage. The next fact is, that the adultery is charged to have taken place with this very sg,me person. It appears to me that this circumstance does form a necessary exception to the rule, and one which I am bound to engraft upon it, and for a very obvious reason ; because circumstances, which may be proved subsequently to the marriage, will have a very different complexion, whether they are taken standing alone, without reference to preceding circumstances, or whether they are taken in con- junction with antecedent criminal connection itself." After relying further upon the special fact of the woman being continued in the husband's service subsequently to the mar- riage, he concluded as follows : " It appears to me, that where the adultery is pleaded to have taken place with the same person with whom there was a criminal connection antece- dently, and where marriage took place subsequently, it forms an exception to the general rule ; and I shall therefoi'e admit the libel as it stands." ^ § 637 [443]. In England, previous to Stat. 20 & 21 Vict. c. 85, tlie injured husband used ordinarily to bring his action 1 Weatherley v. Weatherley, 1 Spinks, 193. [504] CHAP. XXXVlJ ADULTERY. § 637 at common law, against the adulterer, for tlie criminal con- versation, and afterward proceed in the Ecclesiastical Court for a divorce ; pleading in this court his verdict, if he had obtained one. On ordinary principles, the verdict would seem to be quite inadmissible ; for the defendant, against whom it is produced, was not a party to the proceeding in which it was rendered. And the Ecclesiastical Court has held, that a verdict in ejectment cannot be given in evidence in a testamentary cause.^ But though the admission, in divorce suits, of verdicts obtained in actions for criminal con- versation, was much resisted, their admissibility became at length fully established. The principal object of this evi- dence seems to have been, to rebut any presumption of col- lusion,^ and to satisfy the court that the husband had honestly endeavored to obtain all the redress the law affords ; ^ but, though some of the cases might appear to give it a little more ■weight,* they all agree, that it is in no proper sense evidence against the wife, and that its production does not place the husband on any better footing towards her, or lessen his bur- den of establishing by other proofs his allegations against her.^ There are no reported American cases, in which 1 Grindall v. Grindall, 3 Hag. Ec. 259, 5 Eng. Ec. 101 ; Price v. Clark, 3 Hag. Ec. 265, 5 Eng. Ec. 103. " Ante, § 26; Price v. Clark, supra; Phillips ». Phillips, 1 Eobertson, 144, 156. » Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415, 418. * Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 364; Chambers v. Cham- bers, 1 Hag. Con. 439, 4 Eng. Ec. 445, 448 ; Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 391 ; Halford v. Halford, Poynter Mar. & Div. 200, note. 5 Williams v. Williams, supra; Loveden v. Loveden, 2 Hag. Con. 1, 4 Eng. Ec. 461, 484 ; Evans «. Evans, 1 Robertson, 165, 170; Best v. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158, 170. See also Elwes v. Elwes, 1 Hag. Con. 269, 4 Eng. Ec. 401, 410, note ; Williams v. Williams, 3 Barb. Ch. 628. The verdict in a suit to which neither the husband nor wife was a party cannot be admitted. Brisco v. Brisco, cited 1 Hag. Ec. 165, 168, 3 Eng. Ec. 77, 78. In a late English case, where the husband sued on the ground of his wife's alleged adultery, Dr. Lushington re- fused to admit against him a verdict obtained against him by a third person for necessaries furnished the wife; the defence set up to the action for necessaries having been, that she had committed adultery. "There can be no doubt," he said, " that verdicts against the alleged adulterer have been frequently admitted in pleading here — not however as proof of the adultery, but to show that the [505] § 639 PEOCEDURE IN SPECIFIC CAUSES. [BOOK VI. such a verdict has been tendered to the court. Probably it would not be received, unless possibly under special circum- stances. § 638 [444]. In some of the American States, adultery is punishable by indictment ; and the question arises, whether, in those States, a record of the defendant's conviction of adultery is admissible in a suit for divorce, to prove the same, adultery, and, if admitted, what weight is to be given it. The general doctrine is, that a judgment in a criminal cause is not, in a civil proceeding, where the party plaintiflf is neces- sarily different, evidence of the fact upon which the convic- tion was founded.! But we have seen, that a divorce suit is really a triangular one, the government constituting the third party ; ^ and so both the parties to the indictment are in fact parties in the divorce suit. Besides, it evidently must aid the conscience of the judge in discharging his duty of pro- tecting the public against divorces for sham offences, to know that this public has itself indicted and convicted the defendant. And when the defendant in the divorce suit has suffered himself to be defaulted ; so that he cannot complain if judgment is rendered against him even without evidence,^ and only the interests of the public remain to be protected ; it would seem upon principle, that the record of conviction should be received as alone sufficient. § 639 [445]. The question of its sufficiency, where the respondent appears and defends, may not be so clear ; but, as here the plaintiff could not have been a witness in the crim- hasband has not shrank from exposing his witnesses to a viva voce examination. .... But here is a verdict in an action between different parties, and for a totally different purpose. The very fact that the wife was examined shows, that the jury gave their verdict from other facts which were brought before them, since she would not be a witness to prove her own innocence." Jenkyn v. Jenkyn, Deane & Swabey, 268. 1 Greenl. Ev. § 537 ; 1 Stark. Ev. 219. But see Maybee v. Avery, 18 Johns. 352. 2 4nte, § 230, 234. « Ante, § 236. [506] CHAP. XXXVI.] ADULTEKY. § 639 inal proceeding,^ why should not the record primd facie establish the fact charged ? In Maine it has been held suffi- cient, as well in a contested as a defaulted case, to prove both the marriage and the adultery .^ In Ohio, a record of con- viction for polygamy was adjudged insufficient proof of adul- tery ; not because of any objection to this kind of testimony, but because the crime of polygamy is committed by merely entering into the second marriage ; while adultery is the carnal act following, though not so necessarily following as to dispense with proof of it in the divorce suit.^ The report of this case does not show whether it was contested or not.* 1 See 1 Greenl. Ev. § 537, note; 2 ib. ^ 45, note; Gilb. Ev. 32; Maybee v. Avery, 18 Johns. 352 ; Nelson v. Evans, 1 Dev. 9. 2 Anderson v. Anderson, 4 Greenl. 100 ; Randall v. Eandall, 4 Greenl. 326. On the bearing of a libel for divorce from bed and board on the ground of cruelty, a record of the defendant's conviction for assault and battery on the wife was offered in evidence, and objected to. It appearing that the defendant had pleaded guilty to the indictment, the record was admitted. Bradley v. Bradley, 2 Fairf. 367. But as a general proposition, a record of conviction upon a plea of guilty in a criminal caase is admissible, in a, civil action against the same defendant, being a solemn judicial confession of the fact. 1 Greenl. Ev. § 537, note. In Woodruff v. Wood- ruff, 2 Fairf. 475, which was a libel for divorce on the ground of cruelty, a record of the conviction of the defendant husband for an assault and battery upon the wife was offered ; but, it appearing that there was a trial in the criminal case, and that the wife was a witness, the record was rejected. In a similar divorce suit in Vermont, where a record of conviction was tendered, the court refused to receive it, except as proof of the fact of the conviction, observing : " It would not be proof of the assault and battery alleged, for the same reason that such a conviction is not evidence in a civil case, when the same matter comes in question ; that is, that it might have been obtained upon the testimony of the person in whose favor it is offered." Quinn v, Quinn, 16 Vt. 426. In Connecticut, " in an action of book- debt," says Judge Swift, " the plaintiff claimed a right to recover for articles deliv- ered to the wife of the defendant, on the ground, that, by extreme cruelty and personal violence, he had driven her from his house ; and he offered, in evidence of that fact, the verdict of the jury convicting him in a public prosecution. But the court held, that such verdict was not admissible evidence to prove that fact ; and that verdicts in public prosecutions for crimes could never be evidence in civil suits, although the sam6 question of fact should arise." Swift's Ev. 20. And see May- bee u. Avery, 18 Johns. 352; People v. Buekland, 13 Wend. 592, 595; King v. Chase, 15N. H. 9. s Ante, § 628. ' Wilson V. Wilson, Wright, 128. See Reemie v. Reemie, 4 Mass. 586 ; Pat- terson V. Gaines, 6 How. U. S. 550. [507] § 640 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. § 640 [446]. The English authorities appear to sustain the general doctrine here indicated. Thus, in a suit for di- vorce from bed and board, for unnatural practices committed by the husband, the only evidence was the record of his con- viction of an assault upon the person named, witli intent to commit the oflfence. The Consistory Court of Yorli, under the apprehension that a mere attempt was not sufiicient to authorize the sentence^ but, not doubting the sufficiency of the proof, rejected the libel. The Higli Court of Delegates, on appeal, admitted it, and pronounced for the divorce, which was followed by an act of parliament dissolving the mar- riage.^ So, on a question of administration upon the effects of a deceased person, a conviction of polygamy is evidence, not conclusive, of the nullity of the second marriage.^ At the same time, in a suit for nullity of a second marriage, it has been held to be competent for the defendant to set up the nullity of the first, in bar of the suit, although he has been convicted of bigamy in respect of siicli second marriage ; the record of the conviction being considered, as it would seem, primd facie evidence, not conclusive, of the nullity.^ Obvi- ously a judgment of acquittal would not bind the plaintiif ; because he, against whom it is offered was not a party to the suit ; and because it ascertains no fact, but merely shows the government to have failed in making out its case. Thus, wliere one had been acquitted on an indictment for having 1 Bromley v. Bromley, 2 Add. Ec. 158, note, 2 Eng, Ec. 260. Poynter Mar. & Div. 184, note. See also Ellenthrop v. Myers, 2 Add. Ec. 158, note, 2 Eng. Ec. 261 ; Boyle v. Boyle, Comb. 72, 3 Mod. 164; Mogg v. Mogg, 2 Add. Ec. 292, 2 Eng. Be. 311. 2 Wilkinson ti. Gordon, 2 Add. Eo. 152, 2 Eng. Ec. 257. There is, however, an English case which came before the Matrimonial Court, wherein the wife brought her petition for divorce on the ground of her husband's " bigamy with adultery," where the husband had been convicted of the bigamy, and Sir C. Cresswell ob- served : " You must remember, that the bigamy must be proved. Proof of the conviction of bigamy will not sufiBce.'' March v. March, 2 Swab. & T. 49, 50. » Bruce v. Burke, 2 Add. Ec. 471, 2 Eng. Ec. 381 ; Rogers Ec. Law, 2d ed. 6'35. See also People v. Buckland, 13 Wend. 592 ; Hudson v. Robinson, 4 M. & S. 475, 479 ; Drew v. Clark, 2 Add. Ec. 102, 111, 113, 2 Eng. Ec. 242, 246, 248 ; Maule u. Mounsey, 1 Robertson, 40, 48; Bray ». Bray, 1 Hag. Ec. 163, 3 Eng. Be. 76. [508] CHAP. XXXVI.] ADULTERY. § 642 two wives, it was held, that the record was not evidence in a civil cause, where the validity of the second marriage was controverted.^ § 641 [448] . It is often important to show, what are called the identity and diversity of the parties to an, act of sexual intercourse proved ; namely, that one of them was the defend- ant, and the other was not the plaintiff.^ To aid this part of the proofs, the Ecclesiastical Courts used sometimes to resort to what is termed a decree of confrontation, applied for on special grounds. On such a decree, it was necessary that the defendant should be produced to a witness who had known her in both characters of wife and adulteress, or to two or more witnesses at the same time who would separately identify her in each character.^ § 642 [449]. The rules which govern the reception of the defendant's confessions in evidence, and the weight to be given them, have already been stated.* Confessions of the particeps criminis, neither made in the presence of the defend- ant, nor communicated to him, are inadmissible.^ And it has also been held, that the acknowledgment of the wife's 1 Gilb. Ev. 34. See further, 1 Phillips Ev. Cow. & Hill Ed. 336 et seq. and notes ; Fairchild v. Adams, 14 Law Reporter, 278, 281 ; United States v. Gilbert, 2 Sumner, 19, 97 ; Anonymous, 2 Sim. N. s. 54, 11 Eng. L. & Eq. 281 ; People V. Buckland, 13 Wend. 592, 596, and cases there cited. 2 Sullivan v. Sullivan, 2 Add. Ec. 299, 2 Eng. Ec. 314; Williams i;. Williams, 1 Hag. Con. 299, 4 Eng. Ee. 415, 418; Dillon v. Dillon, 3 Curt. Ec. 86, 100, 7 Eng. Ec. 377 ; Hamerton v. Hamerton, 2 Hag. Ec. 8, 4 Eng. Ec. 13. » Searl v. Price, 2 Hag. Con. 187, 4 Eng. Ec. 524 ; Curtis v. Curtis, 5 E. F. Moore, 252, 10 Jur. 165. The form of a decree of confrontation may be seen in Coote Ec. Pract. 336. * Ante, § 240-251. ' Burgess ». Burgess, 2 Hag. Con. 223, 4 Eng. Ee. 527 ; Harris v. Harris, 2 Hag. Ec. 376, note, 4 Eng. Ec. 160, 172; Croft v. Croft, 3 Hag. Ec. 310, 5 Eng. Ec. 120, 125 ; Matchin v. Matchin, 6 Barr, 332 ; Lawson v. The State, 20 Ala. 65. Where the defendant husband's intent to commit adultery was fully established, and nothing was wanting but the consent of the female on whose chastity he had made attempts, the subsequent conduct of that female was held to be evidence most stringent, of her having yielded to his solicitations. Soilleux v. Soilleux, 1 Hag, Con. 373, 4 Eng. Ec. 434. ; . [ 509 ] § 643 PEOCEDUBE IN SPECIFIC CAUSES. [bOOE VI. agent, who, by her direction, took her child to be christened, made to the clergyman at the christening, that it was not the husband's child, but another person's, is not I'eceivable; the agent himself must be called.^ So the particeps criminis may, if willing to testify, be made a witness, whether the adultery is an indictable offence or not. " He is not thereby disquali- fied ; and, although in practice it is a rare circumstance to find the paramour of the wife brought forward as a witness, it is not uncommon for the female accomplice to be produced, when the wife is complainant against her husband's adultery. The evidence of a paramour, however, must be corroborat- ed "; ^ it is always to be listened to with caution.^ In Mas- sachusetts, when an alleged particeps criminis was produced to prove the offence, the court said, they, would not refuse to swear him ; but, if his testimony showed himself to be the paramour, they should recommend to the solicitor-general to lay the case before the grand;jury. If the counsel should omit to ask the witness with whom the adultery was com- mitted, the court would put the inquiry.* In New York, the court refused to grant a divorce on the unsupported concur- rent testimony of two prostitutes.^ § 643 [450] . In those States in which adultery is not in- dictable, the husband or wife of the particeps criminis may be 1 Faussett v. Faussett, 13 Jur. 688. " Best V. Best, in the Arches Court, 1823, Poynter Mar. & Div. 198, note ; s. c. in Consist. Court, \ Add. Ec. 411, 2 Eng. Ec. 158, 170; Simmons v. Simmons, 1 1 Jur. 830, 5 Notes Cas. 324, 1 Robertson, 566 ; Emmons v. Emmons, Walk. Mich. 532 ; Van Cort v. Van Cort, 4 Edw. Ch. 621 ; Lewis v. Lewis, 9 Ind. 105; Don V. Don, 10 Scotch Sess. Cas. s. s. 1046. ' Astley V. Astley, 1 Hag. Ec. 714, 3 Eng, Ec. 303, 304, 306 ; Moulton v. Moulton, 13 Maine, 110 ; Van Epps v. Van Epps, 6 Barb. 320 ; Wood v. Wood, 2 Paige, IDS, 112 ; The State v. Crowley, 13 Ala. 172 ; Thompson v. Thompson, 10 Rich. Eq. 416, 424; Ciocci v. Ciocci, 26 Eng. L. & Eq. 604, 1 SpinliS, 121. " Lncy Peacock [the person with whom the adultery was alleged to have been com- mitted] herself must be considered as an accomplice ; and all the legal considera- tions applicable to such a witness must apply to her." Simmons ». Simmons, 1 Robertson, 566, 571. * Brown v. Brown, 5 Mass. 320. And see ante, § 94, note. 5 Turney v. Turney, 4 Edw. Cb. 566. See also the Scotch case of Sim J>. Miles, 12 Scotch Sess. Cas. 633. [510] CHAP. XXXVI.] ADULTERY. § 644 a witness to establish the offence. But Vice-Chancellor Mc- Coun, who ruled this point, added, that, where adultery is punishable as a crime, the consequence is otherwise.^ And this latter proposition plainly follows from the established doctrine, that one of the married parties cannot be heard in court accusing the other of crime.^ Perhaps the rule should • also be, that an infamous breach of matrimonial duty and social decorum and decency must not thus be revealed by a wife or husband against the ofiFending one. On the other hand, in a late New Hampshire case, where there was an in- dictment for adultery, the husband of the female was the principal witness to prove the adultery ; there was a convic- tion on this evidence, and the court sustained the conviction ; but the witness testified " without objection," and this point was not discussed.^ § 644 [451]. The majority of the Connecticut court held, that the respondent in a suit for divorce on the ground of adultery could not introduce proof of her good character, to rebut the presumptive evidence of guilt which the plaintiff had produced. The reason assigned was, that the divorce suit is a civil one, and that the right of shov?'ing a good char- acter, where character is not ■ the question directly in issue, is confined to criminal prosecutions.* But probably ^this doc- trine is not to be elsewhere followed. The principle which best commends itself to reason and modern authority is, that the rules of evidence are the same in civil and criminal causes, when the issue, which is the test, is the same.^ And else- where it is held, for example, in an action of slander, wherein the defendant pleads the truth in justification, that the plain- tiff, in reply to the defendant's testimony, may introduce evi- dence of his good character, in analogy to the rule prevailing 1 Van Cort v. Van Cort, 4 Edw. Ch. 621, 624. ^ The State v. Welch, 26 Maine, 30. s The State v. Marvin, 35 N. H. 22. * Humphrey v. Humphrey, 7 Con. 116. ' See 1 Greenl. Ev. § 65 ; Lord Chancellor Erskine, In Melville's case, 29 Howell St. Tr. 764 ; Vol. I. § 441 ; ante, 5 263, note, 271. [511] § 645 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. in criminal proceedings.^ And the doctrine, as applicable alike to criminal and civil suits, has been well expressed by Chancellor Walworth to he, " that, if a party is charged with a crime, or any other act involving moral turpitude, which is endeavored to be fastened upon him by circumstantial evi- dence, or by the testimony of witnesses of doubtful credit, he may introduce proof of his former good character." ^ It has therefore been specifically held in Missouri, that a defendant in a suit for divorce on the ground of adultery may introduce evidence of her general good character ; ^ while, on the other hand, in perfect accord with this doctrine, it has in New Hampshire been held, that a husband proceeding against his wife for a divorce for her adultery, cannot be permitted to show she has sustained the character of a lewd and unchaste woman.* § 645 [452]. The practice of the courts generally, in di- vorce suits, has been to receive evidence of character to' an extent somewhat beyond even the practice of the common- law courts in criminal cases. Still, we have not decisions clearly defining how far this exceptional course is permis- sible, and probably most of our tribunals w^ould discard alto- gether any such exception governing this particular class of cases. In Ohio it was laid down, in an adultery divorce suit, that the complainant's general reputation for chastity is always in issue, in cases of this sort ; but not particular acts not pleaded by the defendant, and not the general reputation of the defendant.^ Plainly, if the defendant has not pleaded re- crimination, he cannot rely on even the ill conduct of the plaintiff, much less can he on his ill character ; according to the doctrine generally prevailing on this subject.® In the 1 Harding v. Brooks, 5 Pick. 244. Where the evidence was offered before the defendant had put in his testimony, it was rejected. Cornwall v. Richardson, Ryan & Moody, N. P. 305. 2 Townsend v. Graves, 3 Paige, 453, 455; 1 Greenl. Ev. 5th ed. § 54, 55, and notes. s O'Bryan v. O'Bryan, 13 Misso. 16. * Washburn v. Washburn, 5 N. H. 195. 6 Harper v. Harper^ Wright, 283. « Ante, h 334 et seq. [512] CHAP. XXXVI.] ADULTERY. § 646 leading English case of Evans v. Evans, which was a suit for cruelty promoted by the wife, Lord Stowell observed : " The libel states the marriage at Calcutta, in the East Indies, in the year 1778 ; and it proceeds to plead the character of the parties ; that he is a person morose, sullen, tyrannical, and so on ; and that she is in every respect the reverse, a woman of a mild and tender disposition. These pictures are reversed, as is the usual manner, in the responsive allegation. It is usual in these sorts of causes to admit articles pleading in this manner the characters of the respective parties ; it is usual, I say, to admit such articles, but I have not understood that it is usual to examine upon them, or at least to examine upon them in the proportion which has been done in the present cause. And I think that I feel the weight of some reasons which would induce me very much to question the propriety of admitting such articles at all, if they were likely in other cases to lead to the consequences they have done in this ; for a very great part of this voluminous inquiry has turned, not upon the matter in issue in the present cause, but upon the general character of the two parties ; and I have been loudly called upon, on both sides, to determine that which I am not called upon either by the nature of the au- thority which I possess, or by the necessity of the present case, to pronounce the result of that evidence upon general character."^ And the later forms of pleading in the Ecclesi- astical Courts appear not to have contained this allegation, in suits either for adultery or cruelty.^ But when cruelty is the offence alleged,^ there are peculiar considerations, which seem not to enter, at least not to the same degree, into the suit for other causes. § 646 [453]. Thus have we endeavored to present, in the foregoing sections, such points relating to the evidence as seem adapted to assist practitioners and judges called to the 1 Evans 0. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 313. And see Dysart p. Dysart, 1 Bobertson, 106, 141. " It is so, at least; with the forms given in Coote Be. Pract. 320, 350. 8 Post, § 463, VOL II. 33 [ 5,13 ] § 647 PBOCEDUBE IN SPECIFIC CAUSES. [BOOK YT. consideration of these questions. But, after all, the help to be obtained from precedents is comparatiTcly light. In prob- ably most of our States the question of fact is for a jury; and in the other States the judge will and should decide it substantially as he believes a jury would do.^ The views contained in this chapter, will, however, assist juries the same as they will judges. § 647. There are a few points connected with the evidence of adultery as set forth in this chapter, about which there may be doubt as to their applicability in indictments for adul- tery; for, perhaps a criminal tribunal would not, on an in- dictment for this offence, consider itself holden to follow the ecclesiastical decisions pronounced in matrimonial causes. This suggestion, however, is made only in the way of cau- tion to practitioners ; for, in sound principle, there should be no difference in the two classes of cases, and the English decisions should be received with the same respect, and per- mitted to have the same authority, when they relate to this subject as when they relate to any other. And although a nice scrutiny might find something to object against a single point or two made in the foregoing sections, it is believed that the doctrine, in the main, as there laid down, is as sound in legal reason as it is well sustained in authority. 1 Alexander v. Alexander, 2 Swab. & T. 95, 101. The reader may consult, among other cases to which he is referred in this chapter, the following : Caton v. Caton, 13 Jar. 431 ; Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3 ; Richardson ». Richardson, 4 Port. 467; Hart v. Hart. 2 Edw. Ch. 207, but query, whether this was decided right ; Johnson v. Johnson, 4 Paige, 460 ; Bray v. Bray, 2 Halst. Ch, 506, 628 ; Hamerton v. Hamerton, 2 Hag. Ec. 8, 4 Eng. Ec. 13 ; Harris v. Harris, 2 Hag. Ec. 375, 376, 4 Eng. Ec. 160, 169 ; Mosser v. Mosser, 29 Ala. 313. ,[5U] CHAPTEE XXXVII. CEUELTT.l Sect. 648. Introduction. 649-665. The Pleading. 666-664. The Evidence. § 648. What is to be said on the subject of this chapter will be divided as follows: I. The Pleading; II. The Evi- dence. If there are any matters of practice not already treated of, and important to be mentioned in this connection, they will be found under the one or the other of these two Bub-titles. I. The Pleading. § 649. The libel in cruelty must, in the nature of the of- fence, be in substance the same with us as it used to be in the English Ecclesiastical Court. And the reason is, that, as we shall see further on,^ the acts which are testified to as endangering the personal safety, and the like, of the party complaining, are parts also of the main charge which the libel sets forth ; differing herein from adultery, where the acts testified to are usually such only as are attendant on the main one, from which attendant acts the main one is to be inferred ; and the ecclesiastical libel performed the double service of stating in substance the evidence, and stating the legal fact on which the proceeding was based.^ There may, ' For the law relating to this ground of divorce, see Vol. I. § 714 et seq. 2 Post, 4 656. » Ante, § 221, 324. [515] § 650 PKOCEDUKE IN SPECIFIC CAUSES. [BOOK VI. indeed, be the proof, by circumstantial evidence, of acts of cruelty ; but this is not the form in which such a case usually presents itself; wherefore, as a general proposition, the de- mands of the law required no more to be alleged in the Ecclesiastical Courts than they require to be alleged in ours, as concerns specifically the main charge of cruelty, — a propo- sition, however, whieli does not, even in suits for cruelty, ap- ply to the entire libel. § 650. The form of libel for cruelty, given in Coote's Ec- clesiastical Practice, after setting forth that the defendant formed an adulterous connection with a woman named, pro- ceeds as follows: "Ninth, That from the time the said H. formed the guilty connection before pleaded, to wit, the mouth of February, 1844, and until his said wife separated herself from him as hereinafter pleaded, he constantly treated her with the greatest violence and contumely ; that he liab- itually called her an old bitch, a bloody or blasted old bitch, an old bawd, and the like opprobrious names, without the slightest provocation on her part; that he used to destroy the furniture of the house, break the windows, and do other acts of a nature to alarm or terrify his said wife ; and the party proponent doth expressly allege and propound, that, in conse- quence of such the ill-treatment of the said H., the health of the said Sophia became and still continues to be greatly im- paired. Tenth, That on the evening of the 21st day of Decem- ber, 1844, tlio said H., without any provocation on the part of his said wife, struck her as she was sitting on a couch in the drawing-room of their said house at Lewisham, so violent a blow on the eye with the back of his hand, upon which he wore a ring, that her eye was nearly closed, and became and remained black for many days afterwards, and was seen in that state by different persons ; that the said H. then spat in the face of liis said wife, and also threw a tumbler full of hot elder wine over her, and told her that thenceforward he should take his meals in a separate room, which he aiccord- ingly did for a long time after. Eleventh, That on the evening of the tenth day of September last, the said H., after [516] CHAP. XXXVn.] CRUELTY. § 651 applying many abusive epithets to his said wife, urged her to allow him a further sum of 200/. per annum (she having, at the time and in contemplation of the said marriage, as the party proponent expressly alleges and propounds, settled upon him the yearly sum of 100/.), and upon her refusing so to do, rushed towards her in an infuriated state, and pressing one of his clenched fists hard upon her forehead, and shaking the other close to her face, roared out, ' Damn you, you bloody old bitch, it is fortunate for you that I am not drunk to-day,' or to that effect; and then said, seizing her by the arm and thigh, ' Shall I throw you out of the window, you bitch ? ' — adding, ' No, I will not, to-day ; but the next time I come home in such a, .temper, especially if I have had any gin, I will not answer for the consequence ' ; that the said H. then left the house, and did not return that night ; that the said Sophia also the next morning left the said house, and has ever since lived separate and apart from her said husband, but that previous to her so leaving the said house she showed to , her servant, the marks on her arm produced and left by the violence of the said H." ^ § 651. It is not easy to lay down such general rules as will guide the practitioner in all cases wherein he may desire to allege cruelty, concerning what the allegation shall con- tain. And the courts seem not, in this country, to be quite harmonious in their decisions upon the subject. Yet it is probably true everywhere with us, that, to allege cruelty in general terms and in the mere words of the statute is not sufficient ; the facts must, with greater or less minuteness, be set out,^ and the court, when there is a trial by jury, is to decide on the sufficiency of the facts alleged, and the jury is 1 Coote Ec. Pract. 354 - 356. The allegation of showing the marks to the servant is important in the ecclesiastical practice, but quite improper in ours ; and this is a good illustration of the distinction between the differing systems. " Harrison v. Harrison, 7 Ire. 484 ; Lewis v. Lewis, 5 Misso. 278 ; Hill v. Hill, 10 Ala. 527 ; Wright v. Wright, 3 Texas, 168 ; Byrne v. Byrne, 3 Texas, 336 ; Wilson o. Wilson, 2 Dev. & Bat. 377 ; Conn v. Conn, Wright, 563 ; Nogecs v Nogees, 7 Texas, 538; Hare v. Hare, 10 Texas, 355; Brown o. Brown, 2 R. I. 381 ; Fellows o. Fellows, 8 N. H. 160. [517] § 662 PEOCEDURE IN SPECIFIC CAUSES. [BOOK VL to find, whether or not the facts transpired.^ To this general American doctrine, requiring the facts to be specified, the practice of the Vermont courts seems to furnish an excep- tion.2 In Alabama it has been laid down, that a bill for divorce need not set forth specifically every act of Cruelty complained of; one or two instances will suffice, and the rest may be given under the general charge.^ And where the wife's allegation was, that the husband, " soon after their marriage, commenced treating her, and did treat her, with cruelty and inhumanity; that on various occasions he has inflicted blows upon her in anger, and with much violence, thereby endangering her health and life ; that he has refused to supply her with the necessaries and comforts of life, when it was in his power to supply her with them ; that he still persists in this course of treatment towards her ; and that she cannot, with any degree of comfort or safety, continue longer to live with him," this was held by the Alabama court to be sufficiently definite and certain.* It was also held in this State, that, where the bill is in general terms, and it does not descend to particulars, the defect can be taken advantage of only on special demurrer.^ Probably, however, a rule so narrow as to the method of taking advantage of the objection does not prevail in all the other States.® § 652. Plainly, both on the authorities cited to the last section, and on general principles of pleading, there may and should be, in these cases, besides the particular allegations of specific facts, a general allegation concerning the habit and demeanor of the party complained against in his matri- monial relations with the complainant. It is of the utmost ^ Harrison v. Harrison, snpra ; Wright v. Wright, supra ; Byrne v. Byrne, snpra. '•i Sanders v. Sanders, 25 Vt. 713. ' Reese v. Beese, 23 Ala. 785. * Smedley v. Smedley, 30 Ala. 714. See also Hughes v. Hughes, 19 Ala. 307. * Hill V. Hill, 10 Ala. 527. And see Lewis v. Lewis, supra; Breinig v. Breinig, 2 Casey, 161, and Butler v. Butler, 1 Parsons, 329, as to which, see ante, § 606, 607 ; Steele v. Steele, 1 Dal. 409. ° And see Wilson v. Wilson, supra. [518] OHAP. XXXVn.J CRUELTY. § 654 consequence, in these cases, that this matter should be shown in evidence ; and surely it should not be so shown, without a proper averment in the petition, libel, or bill.^ § 653 [463a]. Concerning what maybe shown against a party, outside of the particular allegation, the question may sometimes be one of difficulty; but, on the whole, the doc- trine best established in reason permits the broadest latitude to be given to inquiries concerning the general conduct and deportment of the parties to one another ; provided, of course, there is sufficient allegation of specific fact to lay a proper foundation for such testimony, and the allegation of the specific matter is also established in evidence. But, without this foundation, no considerate judge would suffer himself to listen to general statements of mere general deportment and bearing. In a Missouri case, a learned judge observed : " It is obvious, that, in cases of this kind, the attention cannot be confined to the particular act or acts alleged as a ground for a divorce, but the inquiry must necessarily involve the con- duct of the parties to each other for the period during which it is alleged that the misconduct took place. It is not lik* the case of a bill for divorce for adultery or any other specific act, on the proof of which the complainant by law becomes entitled to a divorce, but the cruelty in most cases whicli gives cause for a divorce must be evidenced rather by general conduct than by particular acts. The act or acts alleged may be proved, but a divorce would not follow as a matter of course." Yet, to prevent misapprehension, he adds, further on : " We do not maintain, that a single act of cruelty may not be evidence of so depraved a heart, and be accompanied with such circumstances, as would authoritize a divorce ; but we speak generally of cases for divorce on the ground of cruelty." ^ § 654. The pleader should be as accurate as possible, in 1 See post, § 657, 658. * Scott, J., in Doyle ». Doyle, 26 Misso. 545, 546, 547. And see post, § 656 - 658. [519] § 656 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. these cases, in stating the times and places at which the cru- elty was inflicted ; but, suppose the evidence departs herein from the allegation, the variance would not, under all circum- stances, be fatal. On this point, the reader is referred to matter which will be found under the title Adultery.^ In a case tried before a jury in the English Matrimonial Court, the petition charged the cruelty to have been committed " in and during the months of April and May, 1861," and the cruelty proved was in the months of June and July of the same year. The Judge Ordinary, there being no discussion as to whether the evidence would do without an amend- ment, allowed the petition to be amended to meet the evi- dence, observing : " When a cause is tried by a jury, I have the same power of amendment as a judge of a court of common law has when sitting at nisi prius. I think that such a variance in time may be amended." ^ § 655 [496]. We have seen, ^ that matter of recrimination and the like must always be shown by the party who relies upon it in bar. So of the plaintiff's misconduct coming short of what bars strictly in recrimination, as considered in the first volume : * the defendant must prove it, for it will not be presumed.® II. The Evidence. § 656 [496 a]. In a certain aspect, almost the entire law of cruelty may be considered as belonging to the evidence. The reason is, that in each case the leading inquiry concerns the future danger, rather than the past misconduct. Yet the courts regard what has been done as constituting, in a certain sense, the foundation of the proceeding for divorce ; whence it is looked upon as being of the substance of the complaint. The true way, however, to regard the acts of cruelty, as they I Ante, 5 608, 609. ^ Bunyard v. Bunyard, 32 Law J. n. s. Mat. 176. « Ante, 5 334 et seq. * Vol. I. § 764 - 768. * Rumball v. Rumball, Poynter Mar. & Div. 237, note ; Lockwood v. Lock- wood, 2 Curt. Eo. 281, 7 Eng. Ec. 114. [ 520 ] CHAP. XXXVII.] CRUELTY. § 658 are called, is to consider them as occupying a double posi- tion, — the one, as being the gravamen of the injury alleged ; the other, as furnishing evidence of danger to be apprehended. In both these aspects, they were treated of in our first vol- ume. There remain a few points, relating to the evidence proper, as distinguished from the evidence thus explained, to be examined in the concluding sections of this chapter. § 657 [497]. In accordance with this view we have seen, that the law does not so deem the danger to be of the es- sence of the complaint as to preclude the necessity for the complainant to set out, in his pleadings, the specific acts of cruelty. And he must establish, in evidence, so much of the alleged cruelty as constitutes ground of divorce ; but he need not do more.^ In New York, where the statute (fol- lowing the common-law rule) requires the several acts of violence to be specifically alleged, it is held, that the acts so alleged present the matters in issue, to which the proofs must be directed, but that, under the general allegation in the bill as already explained,^ the court will look into the ^general conduct of the defendant toward the plaintiff, for the purpose of understanding more fully the circumstances complained of, and how the parties lived together.^ And we have al- ready seen, that, according to the common doctrine, weight may be given to matters not pleaded, though they cannot be the foundation or only ground for the divorce.* In a New Jersey case, however, the Chancellor observed : " The evi- dence should have been confined to the specific charges in the bill, whereas it has in reality been little short of a history of all the family quarrels for the last twenty years, a recital at all times disgusting and painful, and never to be resorted to but from the strongest necessity." ^ § 658 [497 a] . In an Alabama case the court considered 1 Lockwood ». Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 114 ; ante, 5 612. 2 Ante, 4 652, 653. » Whispell v. Whispell, 4 Barb. 217. * Vol. I. § 727 ; ante, § 653. 5 Graecen v. Graecen, 1 Green Ch. 459, 460. Contra Rees v. Eecs, 23 Ala. 785. [521] § 659 PROCEDUEE IN SPECIFIC CAUSES. [BOOK VI. the point last stated, and arrived at what seems to be a just conclusion, as follows : that specific acts of cruelty, not al- leged by the complainant, cannot be made the foundation of the decree of divorce ; yet, that the court may consider such" acts as explanatory of the acts alleged, and as giving weight to them ; while, also, the alleged acts must be proved in sub- stance as stated in the pleadings, but they need not be ex- actly in respect of all their non-essential circumstances. Said Goldthwaite, J. : " The strictest application of the rule does not require, that more than the substance of the issue should be proved ; and, if the specification was that the defendant beat the complainant severely with a stick, while the evi- dence showed that it was done with a whip, the variance would be altogether immaterial. ' So, if the charge was, that the violence was inflicted in different modes, only one of which was established, it would be enough ; for the sub- stance of the charge is, that the particular violence offered amounted to cruelty, and tlie charge is supported by show- ing any violence of a like kind, which could be regarded as cruel within the meaning of the statute." ^ That the general, demeanor of the parties to one another, in distinction from specific acts of cruelty, is always in evidence in these cases, we have already seen.^ § 659 [498]. If marks of violence are found upon the wife, it does not follow, that they were caused by the husband.^ But if she makes complaint of the injury, recenti facto, such, complaint, with the marks, may be shown ; because, from the nature of these transactions, unless this kind of evidence were received, the husband might inflict ill-usage upon his wife when the parties were alone, and she be left without the possibility of redress. And if a wife complains, recenti facto, to her maid ; and afterward, but not recenti facto, to her physician ; still the latter complaint, though not direct 1 DaTid V. David, 27 Ala. 222, 224. See also, as to a point of practice, Breinig V. Breinig, 2 Casey, 161. 2 Vol. I. § 727 ; ante, § 650, 651, 657. 3 Dysart v. Dysart, 1 Robertson, 106, 118. [522] CHAP. XXXVII.] CRUELTY. § 660 evidence of ill-usage, has been held to be admissible as strengthening the statement, and confirming the credit, of the maid.^ § 660. In an Upper Canada case, which was a suit for alimony, but governed by the same principles as a suit for di- vorce, it appeared, that a few days after the departure of the plaintiff wife from her husband's house, she was found to have upon her person severe bruises and injuries, which, in the opinion of medical men, must have been caused by ex- ternal physical violence, and not by a fall or other accident. And the husband having been shown to have used violence toward her on other occasions, and in other ways to have so conducted himself as to rafse a strong presumption that the bruises and injuries were inflicted by him, the court made the decree for alimony upon this evidence. Said Spragge, V. C. : "I do not find from the evidence, that she stated how or from whom she received them. To Bryan Fenwick she did not state that she had been injured or ill treated by her husband at all, but assigned other reasons for leaving her husband's house. . . . Upon this I observe, that the wife giving these reasons to Fenwick, is not to my mind proof that she had not received personal injuries from her husband." Again : " She left her husband's house a short time before she was seen with these injuries upon her person. She is seen with injuries \ipon her, inflicted by some person, not the result of accident. She left her husband's house suddenly, a short 1 Lockwood ». Lockwood, 2 Cart. Ec. 281, 7 Eng. Ec. 114, 121; Dysart v. Dysart, 1 Robertson, 106, 114, 470, 497. See Waring v. Waring, 2 Phillim. 1.32, 1 Bng. Ec. 210, 213. So in a suit against the wife for desertion : her declarations, made on the night of flying from her hasband's house, hare been held admissible evidence in her favor. Cattison ». Cattison, 10 Harris, Pa. 275. On the ordinary principles of evidence. Professor Greenleaf observes : " Wherever the bodily or men- tal feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are original evidence." 1 Greenl. Ev. § 102. And see further, on questions of this nature, Reg. v. Walker, 2 Moody & R. 212 ; Bex V. Jagger, 1 East P. C. 455 ; Reg. v, Osborne, Car. & M. 622 ; Phillips v. The State, 9 Humph. 246; Commonwealths. McPike, 3 Cush. 181; Kennard w. Burton, 25 Maine, 39. Of course, in cases of divorce, the party's testimony, as such, is not admissible. Manchester v. Manchester, 24 Vt. 649. [523] § 661 PEOCKDUEE IN SPECIFIC CAUSES. [BOOK VI. time, one or two days, before ; her husband had previously- struck her. I thiiilc the presumption is so strong that he, and not another person, inflicted these injuries, that I do not hesitate to fix the act upon him." ^ § 661. Tliere are, in the books, some nice discussions as to when the declarations of the wife may, in this class of cases, be admitted against the husband ; but a simple reference to the cases is nearly all which it is deemed best to give of the matter here.^ In a Pennsylvania case it was held, that, in an action by a husband for enticing away his wife, her dec- larations, made just before and at the time of leaving her husband, indicating ill treatment by him of her, were admis- sible in evidence for the defendant.' I Jackson v. Jackson, 8 Grant, U. C. Ch. 499, 502, 504. '•' Johnson v. Sherwin, 3 Gray, 374 ; Cattison v. Cattison, 10 Harris. Pa. 275 ; Jacobs V. Whiteomb, 10 Gush. 255; Palmer ». Crook, 7 Gray, 418; Phillips!!. Kelley, 29 Ala. 628. ^ Gilchrist v. Bale, 8 Watts, 355. In this case, the evidence offered is stated by Rogers, J., as follows : " To disprove the allegation in the declaration, that the wife deserted her husband by the advice and at the procurement and solicitation of the defendants, they offered to prove by her attending physician, that, about ten days before Mrs. Bale left her husband, she complained that he had treated her badly ; that she showed marks on her arms, which she said she had received from his beating her ; and asked him what she should do. That he advised her to go to her father's, and leave her husband." Upon the matter of law, it was observed by this learned judge : " It is a general rule, that the declarations of a husband or a wife cannot be received in evidence against each other, either civilly or criminally. But this rule cannot be extended to all possible cases ; for, where no confidence has been vio- lated, the law has admitted of some exceptions. Thus in Aveson u. Kinnaird, 6 East, 1 88, in an action by the husband on a policy of insurance on the life of his wife, declarations by the wife, made by her when lying in bed, apparently ill, stating the bad state of her health, &c. and her apprehensions that she could not live ten days longer, by which time the policy was to be returned, are admissible in evi-. dence to show her own opinion of the ill state of her health at the time of effecting, the policy. In the argument, it was stated by counsel, that the declarations by the wife upon her elopement from her husband, accusing him of misconduct, could not be given in evidence against him in an action against the adulterer. To this Lord Ellenborough replied : ' It is not so clear that her declarations, made at the time, would not be evidence under any circumstances. If she declared at the time, that she fled from immediate terror of personal violence from her husband, I should ad- mit the evidence, though not if it were a collateral declaration of some matter which happened at another time.' For the same case, in illustration, his lordship referred [524] CHAP. XXXyil.] CRUELTY. § 663 § 662 [499]. The question of admitting a record of con- viction for an assault and battery, obtained in a criminal prosecution, has been already considered.^ A late Pennsyl- vania case holds, that the respondent husband, sued by his wife for cruelty, cannot show, in his defence, an unsuccess- ful attempt by her to have him bound over to keep the peace. Said Black, J. : i^ She was not a party to it [the proceeding] in any sense that would make it binding on her. Nor does it appear to have any relation to the subject-matter of the present dispute." ^ § 663 [500]. The English doctrine, resting well on prin- ciples applicable to this peculiar offence, permits the de- meanor of the parties at times subsequent to the bringing of the suit, to be taken into the account in determining, whether a renewal of the cohabitation would be safe.^ And the same doctrine has been maintained in Georgia.* Yet the Louisi- ana court held otherwise, observing : " It has been urged, that, since the inception of this suit, the aggravated ill-treat- ment of the husband towards his wife ought to be taken into consideration by us in deciding on the case. We do not feel authorized to do so. The only question we have to ex- amine is, whether the facts, alleged as having occurred before to Thompson v. Trevanion, Skinner, 402, where, in an action by the husband and wife for woanding the wife. Lord C. J. Holt allowed what the wife said im- mediately upon the injury received, and before she had time to devise anything for her own advantage, to be given in evidence as part of the res gestae. The motives which induced Mrs. Bale to desert her husband are the matters in controversy ; and his conduct, about that time, has a material bearing on the issue. The defend- ants allege that she left him, not for the cause assigned in the declaration, but be- cause of his wicked and brutal conduct. This, in most cases, cannot be shown, except by her declarations made at the time to her relations and friends. Few per- sons are so lost to every sense of propriety as to act thus in public. The treatment of which she has most reason to complain, is usually acted in secret, and can only be known from her complaints, or, as here, from marks of violence on her person," p. 3.56, 37.'j,.358. 1 Ante, § 639, note. " Breinig v. Breinig, 2 Casey, 161. 8 Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 298 ; Vol. I. § 718. * Johns V. Johns, 29 Ga. 718. [525] §664 PBOCEDURE IN SPECIFIC CAUSES. . [B.OOK VL the suit was brought, are sufl&cient to justify a separation." ^ Plainly the facts alleged, and existing at the time of suit brought, must be the ground of the proceeding ; ^ yet it is not easy to see, why they may not receive color as well from what has happened since, as from what took place before.^ § 664 [501]. The admissions of the defendant, in cases of cruelty, " whether in words, or by the absence of the denial of charges which every innocent man would, if he could, deny with indignation, are," observed Dr. Lushington, " im- portant evidence ; for they are the best and most creditable testimony the res gestce, under the- circumstances, can admit of." * Still, a divorce for cruelty is never granted, more than for adultery, on the unaided confessions of the party .^ The rules and principles applicable to this matter have been al- ready discussed.^ " Affectionate letters, from a wife " to her husband, " are not necessarily inconsistent with cruelty on the part of the husband ; though they may be so, they are not necessarily so." ' 1 Tourn^ v. Toume, 9 La. 452, 457, Ballard, J. 2 See Ferrier v. Ferrier, 4 Edw. Ch. 296. s Vol. I. § 727 ; ante, (, 657. ' Saunders v. Saunders, 1 Robertson, 549, 558. 5 Ayl. Parer. 229. ° Ante, § 2*40-250. ' Saunders v. Saunders, supra, p. 565. And see Johns v. Johns, 29 Ga. 718. [526] CHAPTER XXXVIII. DESEETION.l Sect. 665. Introduction. 666 -669. The Plaintiffs Allegation. 670 -681. The Eridenoe. 682, 683. Locality in which the Suit is to be maintained. § 665. The matters to be examined in this chapter will be divided as follows : I. The Plaintiff's Allegation ; II. The Evidence ; III. The Locality in which the Suit is to be maintained. I. The Flaintiff's Allegation. § 666. The form and substance of the allegation of deser- tion have not been much discussed in the cases. It was observed, however, in Texas : " Where desertion without suf- ficient cause and against the consent of the other party is ground for divorce, it is not sufficient to state that the libellee unnecessarily and without sufficient cause abandoned the li- bellant ; but the circumstances attending the desertion must be particularly stated, that the court may judge of the legal sufficiency of the complaint." And it was added : " The plaintiff should state such facts as will show, that the aban- donment was really voluntary or without sufficient cause on the part of the [defendant] wife, and was the offensive deser- tion contemplated by the statute." ^ The words of the statute 1 For the law relating to this ground of divorce, see Vol. I. ^ 771 et seq. ' Hare v. Have, 10 Texas, 355, 359, opinion by Hemphill, C. J. [527] § 667 PEOCEDURE IN SPECIFIC CAUSES. [BOOK VI. are not given in this case ; but, in our State generally, it is believed not to be necessary for the libel for divorce on the ground of desertion to do more than, in substance, follow the words of the statute in the description of the offence. Upon general principles, it would not be necessary, neither would it be proper, to set out in the libel those particular circum- stances and facts attending the desertion, wherefrom, as mat- ters of evidence, the intent to desert, and the like, are to be inferred. § 667. The statute of Missouri provided for a divorce " when either party has absented himself or herself, with- out a reasonable cause, for the space of two years." And a libel under this statute alleged, that the defendant wife, on a day named, left the plaintiff husband, without any cause whatever on his part, and that she has " been absent from him for more than two years." Here, the reader perceives, the language of the statute was not followed, even in sub- stance. " It is true," said Gamble, J., " that it is alleged that the wife left the plaintiff on the 20th October, 1850, without any cause whatever, but the continued absence for two years is not connected with this departure, nor is it alleged that the continuance of the absence was without a reasonable cause." Wherefore the allegation was held not to be a sufficient foundation whereon to rest a decree for divorce.^ In like manner, in Tennessee, where the statute authorized the di- vorce for " wilful and malicious desertion or absence by the husband or wife, without reasonable cause, for the space of two years," the court held, that the libel must cover, in its averment* of the desertion, the idea conveyed by the words " wilful and malicious." ^ Likewise in New Hampshire, the statute of which State provided for a divorce " where the husband shall willingly absent himself from the wife for the space of three years together" &c. ; and the allegation was, that he " willingly absented himself from her more than three 1 Freeland v. Freeland, 19 Misso. 354. " Stewart o. Stewart, 2 Swan, Tenn. 591. [528] CHAP. XXXVIII.] DESERTION. § 669 years ago," &c., — this was held not to be sufficient, as not coming within the terms of tlie statute. Said the court : "The defect in this libel is, that, although it is alleged that the husband absented himself from the wife more than three years ago, it is not averred, that he has absented himself for the space of three years together. All that is alleged in this libel may be true, and yet the husband may have never absented himself from the libellant for the space of a week since his intermarriage with her." ^ § 668. In Alabama it was held to be, in the language of Chilton, J., " sufficient for the bill to aver the marriage, that the complainant has resided in this State three years next be- fore its exhibition, and that the husband has left her for the space of three years without the intention of returning." There is no need, that the readiness of the complainant at all times, during the three years, to receive and live with her husband, should be averred.^ § 669. We saw, in the first volume,^ that the legal offence of desertion, though described in different language in the statutes of the various States, is, in legal contemplation, sub- stantially the same in all. But it does not thence follow, that what would be a good libel for divorce for the desertion in one State, would be equally a good one in every other State. Those gentlemen of the profession who are familiar with pleadings drawn upon statutes will need no illustration of this proposition ; and it is not, for any purpose, deemed best to extend the discussion further here. Let it, however, be observed, that, for reasons which will occur to every practi- tioner, there is a wide difference between adultery and cruelty, on the one hand, and desertion, on the other hand, iu respect to the matter now under consideration. 1 Hancock v. Hancock, 5 N. H. 239, 240. 2 Gray v. Gray, 15 Ala. 779, 782. » Vol. I. § 773. VOL. II. 34 [ 529 ] § 671 PKOCEDUKE IN SPECIFIC CAUSES. [BOOK VI. II. The Evidence. § 670. The law and evidence relating to desertion are so closely connected together, that it is not easy to separate the one from the other. Some of the points stated in our first volume may therefore be deemed points of evidence ; while, in another aspect, various points to be stated in this volume, under the present sub-title, are points of law. § 671. The two prominent, and perhaps the only essential, things to be proved in these cases are, first, the cessation of cohabitation; and, secondly, the intent, in the mind of the defendant, to desert the other party.^ There are cases which favor the idea, but probably none which distinctly lay it down as legal doctrine, that the plaintiff must show affirma- tively an absence of consent on his part to the separation.^ But upon principle, there is no need to prove this negative in order to make out the case ; because, if there was a con- sent, this is matter of defence to be brought forward on the other side. Therefore we may not impute such a doctrine to Sir C. Cresswell, though, in giving construction to the English statute, the words of which are " desertion without cause," he made use of the following language : " There is a difficulty in defining ' desertion ' ; and cases may arise in which it would be very difficult to say whether the facts proved would fall within the meaning of the statute. With- out attempting to lay down a precise definition of ' desertion,' I think it undoubtedly must mean, a wilful absenting him- self by the husband ; and that such absence and cessation of cohabitation must be in spite of the wish of the wife ; she must not be a consenting party." ^ And the same may per- haps be said of the Chancellor of New Jersey, who observed : 1 See Vol. I. i 777. 2 Thompson v. Thompson, 1 Swab. & T. 231 ; Smith v. Smith, 1 Swab. & T. 359 ; Jenningi^ v. Jennings, 2 Beasley, 3S. ^ Thompson v. Thompson, supra, p. 333. [530] CHAP. XXXVIII.] DESERTION. § 673 " To establish a case of desertion, it should appear that the wife left her husband of her own accord, without his consent and against his will ; or, that she obstinately refused to return, without just cause, on the request of her husband." ^ Yet it is plain, that, in many cases, if it lies in the party's power to prove this negative, such proof will be of essential service in establishing the fact truly in issue. § 672. From the like principle of law with the one dis- cussed in the last section it follows, that, where a separation and intent to desert are once shown to exist in concurrence, both the separation and the intent will be presumed to con- tinue, until the contrary appears.^ Thus it was observed by Dewey, J., in a Massachusetts case : " The fact of her leaving him, declaring her intention no longer to live with him, being shown, her absence must be taken to be wilful, and being unexplained it must be taken to have been unjustifiable ; and, if no subsequent facts had been shown to qualify or excuse the continuance of the desertion, she would after five years have forfeited her marital rights, and subjected herself to a libel for divorce from the bonds of matrimony on the part of the husband." ^ § 673. There is no one royal road over which the proof must travel in these cases. It is often important to show the circumstances attending upon the original desertion ; * often the language which the parties made use of at the time of leaving one another, or so near the time as to be a part of the transaction, is important, while it is always ad- missible ; ^ the confessions or declarations of the opposing party, made subsequently to the separation, are in many 1 Jennings v. Jennings, supra. 2 1 Greenl. Ev. § 41, 42; Gray i>. Gray, 15 Ala. 779. Bat see Grossman r. Crossman, 33 Ala. 486. 3 Hall V. Hall, 4 Allen, 39, 40. * Kimball v. Kimball, 13 N. H. 222 ; McCqy v. McCoy, 3 Ind. 555. ° Fulton V. Fulton, 36 Missis. 517, 527. And see Bennett v. Smith, 21 Barb. 439. [531 J § 674 PEOCEDUKE IN SPECIFIC CAUSES. [BOOK VI. cases desirable to be shown.^ The main matter being the intent to desert, whatever points to the intent is relevant. Proof of the cessation of the cohabitation is indeed necessary, but it alone does not constitute desertion, and proof of it alone is not sufficient.^ It was observed in a California case : " De- sertion consists in the cessation of matrimonial cohabitation, and the intent to desert." And it was added : " The former is [in this particular case] proved by positive testimony, and the latter appears inferentially from the fact of the abandon- ment without apparent cause. The plaintiff is not required to show negatively that no cause existed ; for, none appearing, the law will not presume one. The presumption is, that there was none, and that the defendant intended the consequences resulting from his acts." ^ § 674 [520]. Though, as we have seen,* the separation and desertion may not be identical in the time of their com- mencement, yet generally they are. The courts have not, as yet, laid down any particular rules of evidence for determin- ing, whether a separation does or not, as matter of proof, amount to a desertion ; perhaps the question does not admit of such rules, but each case must rest on its own circum- stances. Still, the intent to desert is a fact of which the court must, in some way, be affirmatively satisfied.^ It is important to disclose the particulars which preceded and ac- companied the separation.® So the single fact of a protracted absence may assist tlie presumption concerning the original intent.*' " The husband's desertion," says Sliaw, 0. J., " may be proved by a great variety of circumstances, leading with more or less probability to that conclusion ; as, for instance, 1 Word V. Word, 29 Ga. 281 ; McCoy v. McCoy, supra. 2 Cook V. Cook, 2 Beasley, 263. ' Morrison v. Morrison, 20 Cal. 431, 432, opinion by Cope, J. * Vol. I. § 784. 6 Friend u. Friend, Wright, 639 ; Brainard v. Brainard, Wright, 354 ; "Vol. I. » 777. « Kimball v. Kimball, 13 N. H. 222 ; Bishop v. Bishop, 6 Casey, 412, 415. ' Ahrenfeldt v. Ahrenfeldt, 1 HofiFman, 47 ; Vol. I. § 783. [532] CHAP. XXXVm.] DESERTION. § 675 leaving his wife with a declared intention never to return ; marrying another woman, or otherwise living in adultery, abroad ; absence for a long time, not being necessarily de- tained by his occupation or business, or otherwise ; making no provision for his wife, or wife and family, being of ability to do so ; providing no dwelling or home for her, or pro- hibiting her from following him ; and many other circum- stances." ^ § 675 [518]. In Ohio, on a petition by the wife for a divorce from her husband, the proof was, that, eight years before, " all her property," in the words of the report, " was taicen in execution and sold, to pay his whiskey debts." She removed to Cincinnati, and he lived with her, most of the time drunk, for several years, and doing no good ; when she refused to support him any longer ; and he left her house about five years ago. Her character is, in general, good ; but she has expressed a desire to be rid of her husband, in order that she might marry some one else." The court said : " The wife has driven off her husband, and now seeks a divorce because of his wilful absence. She was doubtless right in refusing to live with or support a husband always drunk, but that does not make the case wilful absence on his part." The petition was therefore dismissed.^ The facts of this case are not presented with sufficient fulness to enable us to draw from it any specific rule of law. As a general doctrine, the husband and wife should no doubt mutually labor for the promotion of their common interests ; and, if she has capacity and health to earn a "livelihood for herself and husband, while he has neither, she should earn it.^ But 1 Gregory v. Pierce, 4 Met. 478. ^ Hesler t!. Hesler, Wright, 210. In an Alabama case, a husband, having left his wife without just cause, proposed to her through a third person to be recon- ciled; which she declined, saying, she "had made up her mind not to live with him any longer.'' When she afterward sued for a divorce the court refused it, on the ground that her declaration showed her consent to the separation. . Crow v. Crow, 23 Ala. 583. 3 Vol. I. § 818. [533] § 677 PEOCEDUEE IN SPECIFIC CAUSES. [BOOK VI. the wife's duty can hardly be, under any circumstances, to support a merely drunken husband, who will not work, much less to supply him with intoxicating drinks ; and, if she re- fuses to do this, and for the refusal he leaves her, it would appear to be as much a desertion as if he left her because she was not sufficiently young or handsome. Neither should her right be barred because of her wish to avail herself of it,^ and be rid of such a husband, and promote her happi- ness by marrying a better. § 676 [519]. In another case decided by the same court, the parties were married in Germany, whence they removed to Ohio. Here the husband collected all the wife's property, converted it into cash, and went back to Germany, never, as he said, to return. She afterward expressed a wish that he never would return. After he had been away during the statutory period, without being heard from, she sustaining meanwhile a good reputation, the court decreed a divorce on her prayer.^ Where, however, on a suit by the wife the hus- band was shown to have left her for a distant place, declaring he could not live with that woman, and would not ; but she followed him, and shortly afterward came back, saying he was to pay her a certain sum of money, and she to have a divorce ; the court dismissed her bill, on the ground, that the whole evidence showed only a separation by agreement, which could not be enforced in this proceeding.^ § 677 [521]. Where a wife soon after the marriage left her husband, saying she would not be confined to one man, and did not afterward return, the desertion by her was held to be established.* Where the parties had been married while the man was under arrest upon a bastardy process, issued on complaint of the woman ; and he, ever after the marriage, refused to live with her ; this was held to be suffi- 1 Ante, § 29. 2 Guembell v. Guembell, Wright, 226. And see Frarell v. Frarell, Wright, 455. 8 Mansfield v. Mansfield, Wright, 284. * Milliner v. Milliner, Wright, 138. [534] CHAP. XXXVIII. J DESERTION. § 678 cient evidence of desertion by him.^ So where, in a suit by the wife, the evidence was, that several years after the mar- riage the husband left her and her children, without any apparent cause, and continued absent during the statutory period, and until the bringing of the suit, without contrib- uting to her support ; ^ where, also, without any known cause, the husband went ofif and had not been heard of;® where, moreover, the husband sent his wife to her father's, in a town remote from their residence, saying he would follow her in a short time, but did not follow her for several months, and, when he did, remained with her only for a brief period, and then left her, without in any way providing for or corre- sponding with her,* — the desertion was held to be sufficiently proved. On the other hand, where it appeared, in the hus- band's suit, that he left his wife with a scanty supply, and went off for months to labor on the canal ; and, when he returned, found she had gone to her friends ; this, with the further fact of her having been overheard to say, after the separation, she could not live with him again, was held to be insufficient proof of her having deserted him.^ § 678 [522]. In another case, which was a suit by the wife, " the cause alleged for this divorce," says the report, " is wilful absence for more than three years. It appeared in evidence, that the defendant was frequently absent, and from sheer laziness wholly neglected to provide for his family. He was a physician, and went, as he said, doctoring- about the country. One time, when he had been gone several days, and left no provision whatever for his family, she went to her father's, about eight miles off. When he returned, and had learned where his wife was, instead of going for her, he left the country, and has since been absent more than three years, without contributing at all to the support of the wife, who continues to reside with her father." The divorce was 1 McQaaid v. McQaaid, Wright, 223. 2 White V. White, Wright, 138. = Roberts v. Roberts, Wright, 149. * Wyatt V. Wyatt, Wright, 149. ' >B"rarell v. Frarell, Wright, 455. [535 j § 680 PROCEDURE m SPECIFIC CAUSES. [BOOK VI. granted.^ A husband took to drink, neglected his family, be- came quarrelsome, then a complete vagabond. The parties disagreed, he left, was afterward most of the time drunk about the streets ; while she lived by herself, supported the family respectably, maintained a good reputation. Then he stole away from her a little boy, his son, and said he meant to keep him, and did not intend to live with the family again. She was held to be entitled to a divorce.^ In a Kentucky suit it appeared, that soon after the marriage in Indiana, the husband left his wife with the intention of abandoning her, who, being poor, went back to her former residence in Ken- tucky. Within sis months he returned to the place where he had left her, but found she had gone. The court held, that it was not her duty to remain at the precise spot where he deserted her, and that her right to a divorce was not taken away by her return to Kentucky.^ § 679 [523]. A husband let to a tenant his dwelling-house, as he announced, " with a view to a permanent separation." He directed the tenant, however, to treat his wife well, and permit her to remain as long as she chose. The next day she also left, and never went back. During the same week, and after her departure, he returned to the house, and con- tinued to occupy it alone. The court considered these facts as sufficiently showing a desertion by him ; there was an ac- tual separation, effected in pursuance of an intent in his mind to separate.* § 680. Where a husband, in embarrassed circumstances, put his wife for a temporary sojourn into a family not his own, then went away promising to return soon ; she, a fort- night afterward, went back to her own house, and there found an execution in the house ; she wrote to her husband several 1 Amsden v. Arasden, Wright, 66. == Clark v. Clark, Wright, 225. ' Fishli ». Fishli, 2 Litt. 337. Divorce for desertion was also decreed in John- ston V. Johnston, Wright, 454 ; and Thompson v. Thompson, Wright, 470. The proof was held insufficient in Jones v. Jones, 13 Ala. 145. * Logan V. Logan, 2 B. Monr. 142. See also Hanberry v. Hanberry, 29 Ala. 719. [536] CHAP. XXXVIII.] DESERTION. § 681 times, but got no answer ; the furniture being sold, she went into lodgings ; sent persons to him to induce him to return, but he said it was not convenient, he had debts to collect which would no't allow him to come away, — it was held, that at this latter time there was a desertion ; thougli he once made a sort of vague offer to rejoin his wife, and four years later wrote her a letter in which he bade her " farewell for- ever." Said Cresswell, J. : " They had a home, and he refused to return to it. I was anxious to ascertain whether he had subsequently offered to provide a home, but by the peti- tioner's answer I gather that he never made any definite or distinct proposal or offer of another home. He deserted the original home, and has provided no new one." ^ But where the husband went away in search of employment, and the wife neglected to answer his letters, it was held, that there ■was no desertion, though he failed to return.^ § 681. There is a late English case, the decision of which, according to the report of the testimony given in the book of reports, is contrary to the result to which most American judges would arrive. The husband was a drunken spend- thrift, abusive to his wife, upon whose earnings he lived ; he one day told her, that he was going to leave town, that she should never see him again, and then went away, taking his clothes, &c., witli him. After going away, he lived in adul- tery, and made no offer to return ; but, on the contrary, when a witness urged him to do something for the support of his wife, wlio was in ill-health, he said he would do nothing vol- untarily ; and, if any attempt were made to force him, he would leave the town where he then was, as he was deter- mined to have nothing more to do with her. Here, as it ap- pears to the author,_ is complete evidence of desertion ; and, if this is not to be taken as sufficient, seldom can a wife prove a desertion. But the desertion in this case was held not to be proved, and probably because of the existence of 1 Cudlipp V. Cudlipp, 1 Swab. & T. 229. 2 Thompson J). Thompson, 1 Swab. & T. 231. [537] § 681 PROCEDUEE m SPECIFIC CAUSES. [BOOK VI. facts now to be stated: When the husband had left the house, the wife continued to remain in it for about a fort- night, and then, without making any inquiries for him, went to her sister's, where she resided up to the time bf bringing the suit, principally supporting herself by dress- making. Said the Lord Chancellor: "The petitioner has this difficulty to contend with. She has not shown that the respondent knew where she was living after he left her There is nothing to satisfy the court, that, when the parties separated, the husband went against the will of his wife. On the contrary, there are circumstances in the case which induce the court to believe, that it is extremely probable that they parted by mutual consent. It is shown that the respon- dent was a man of vile habits and bad temper, and treated the petitioner with great cruelty ; and that, on one of the last occasions they were together, he told her he should leave her, and that she might walk the streets for a living," &c. The real cause of this determination of the court, may probably be seen in the words of the Lord Chancellor, who observed : " It is necessary that the court should be very strict indeed in regard to the proof of the circumstances which enable the wife to obtain a decree of dissolution of marriage." ^ The better view is, that, for the court to give any remedy, it should be satisfied on the evidence of the existence of the facts on which the right to the remedy rests ; but it is for the law- makers, not the judges, to decide whether the proper form of remedy for a particular matrimonial offence is a judicial sep- aration or a dissolution of the marriage bond. In this case, the wife did not indeed prove that she was not glad to be deserted by a worse than worthless husband, neither was the contrary shown. If she had been glad, but did not consent, that would be no bar to her remedy. If in a case the proof shows merely an absence by the husband, it does not go far enough ; but the deficiency may be filled in one of two ways, — either the wife may show, as here, that the husband went away originally, or that he afterward stayed away, with the 1 Smith V. Smith, 1 Swab. & T. 359, 360, 361. [538] CHAP. XXXVIII.] DESERTION. § 682 intent to desert ; or, that she did not consent to the parting. There may still be. circumstances to bar the remedy; but, if they exist, they should be brought forward in defence. III. Tlie Locality in which the Suit is to be maintained. § 682 [531] . In another series of chapters ^ we have con- sidered what are the general doctrines governing the locality in which the suit for divorce shall be brought. There are a few special points to which it is deemed best to direct atten- tion here. Sometimes a desertion commences in one State or country, and during its continuance one or both of the parties remove to another State ; or both go, each to a differ- ent State ; and then, under the peculiar statute law of some of the States, or under the peculiar view of common-law doctrine taken by some courts, it may be important, on a question of jurisdiction, to decide in what locality the deser- tion, as matter of law, took place. One thing is obvious on principle, that, if parties are living together in Massachusetts, and there one of them deserts the other ; and, a year after- ward, the desertion continuing, both go to New Hampshire, and remain in the latter State three years ; a desertion for at least a period of three years has occurred in New Hamp- shire. Upon principle, also, there seems to be no reason why the desertion may not, under a variety of circumstances, be deemed to have taken place in either locality, as may be necessary to sustain the jurisdiction. But these questions seldom arise, and only in particular States ; for, as in the proper place we have seen, it is, as a correct matter of general jurisprudence, immaterial in what locality the desertion oc- curred, the right to take jurisdiction over the offence depend- ing on other principles* Still, a reference to the authorities on this point may be convenient.^ 1 Ante, H13 et seq. 2 Frary v. Frary, 10 N. H. 61 ; Brett ». Brett, 5 Met. 233 ; Harteau v. Hartean, 14 Pick. 181; Wells v. Thompson, 13 Ala. 793; Sawtell v. Sawtell, 17 Conn. 284 ; McDermott's Appeal, 8 Watts & S. 251 ; Batchelder v. Batchelder, 14 N. H. [539] § 683 PROCEDURE IN SPECIFIC CAUSES. [BOOK VI. § 683. Let us look a little further at the prhiciples upon which this matter rests. In order to constitute the desertion during a specified number of years, for which the divorce from the bond of matrimony is granted, tliere must be the continued absence of tlie parties from one another, together with the intent in the mind of the defendant to desert the other. Now we saw, in the first volume,^ that these two things need not be simultaneous in their origui ; the parties may separate to-day, and the desertion begin to-morrow, or next year ; wherefore, in order to constitute desertion, the separation and the intent must be matters having the same existence on the second and third and three hundredth day as on the first. As matter of evidence, where the desertion is once shown it is presumed to continue ; but, as a matter of law, there is no difference between one period and another of tlie desertion. Thence it must follow, that, if a party goes into a State, having been deserted by the other party, the case is as favorable for the one first mentioned as if the deser- tion commenced in such State. Whether the prior desertion could be counted, depends on the same principle as does the question whether a prior adultery could be relied upon as ground for the divorce, — a question discussed in a previous part of this volume. The reader should remember, however, that these views point only to the matter as it rests in legal reason ; how it rests in the decisions, he will see in the cases cited in the last section. 380 ; Kimball v. Kimball, 13 N. H. 222 ; Hasten v. Hasten, 15 N. H. 159 ; Hare V. Hare, 10 Texas, 355, 357 ; Harrison v. Harrison, 19 Ala. 499 ; Bishop v. Bishop, 6 Casey, 412 ; Ashbaugh v. Ashbaugh, 17 111. 476 ; Payson v. Payson, 34 N. H. 518 ; Ford v. Ford, 2 Halst. Ch. 542 ; Hopkins v. Hopkins, 35 N. H. 474 ; Good- win V. Goodwin, 45 Haine, 377 ; Yates v. Yates, 2 Beasley, 280 ; Becket b. Becket, 17B. Honr. 370; HcCraney v. HcCraney, 5 Iowa, 232; Huller v. Hilton, 13 La. An. 1. 1 Vol. I. ^ 784. [540] CHAPTEE XXXIX. OTHER CAtrSBS OF DIVORCE. § 684. There is not, connected with the procedure, much to be said under this title. Where the statute provided for a divorce if " either party shall offer such indignities to the other as shall render his or her condition intolerable," a peti- tion for divorce was held not to be sufficiently specific iinder the statute when it merely alleged, in general terms, that one party offered the other indignities which rendered the condition of such other intolerable.^ The acts should be specifically set out.^ § 685. A statute provided for a divorce " when it shall be made fully apparent that the parties cannot live in peace and happiness together, and that their welfare requires a separa- tion." A party, proceeding under this statute, alleged, " that he and his said wife cannot live in peace and happiness to- gether, and that their welfare requires a separation." The allegation was held not to be sufficient. Said Greene, J. : " A party seeking a divorce under this head should state semething more than the conclusion sought. He should allege his foundation, make out his case, state facts and rea- sons sufficient to make the conclusion ' fully apparent,' to the court, that the peace, happiness, and welfare of the parties render it necessary to sever the bonds of matrimony. The petition should not only distinctly state the facts constituting the cause of divorce, but it should also show, primd facie, that complainant is the injured party, in order to admit proof of these essential facts before the court should decree a di- vorce by default." * 1 For the law relating to this title, see Vol. I. § 812 et seq. 2 Bowers r. Bowers, 19 Misso. 351. ' Erwin v. Erwin, 4 Jones Eq. 82. * Pinkney v. Pinkney, 4 Greene, Iowa, 324, 326. [541] CHAPTER XL. DIVORCE IN THE JUDGE'S DISCRETION.^ § 686. The books are absolutely without any precedents, or any discussion, concerning the form of the pleadings re- lating to the divorce, when sought under statutes which authorize the judge to divorce the parties, when in his opin- ion the public good, or their interest, requires. Yet the mat- ter found in our last section may furnish a hint here. It is not to be presumed that a judge would exercise this discre- tion except where the party had put on record, in his allega- tion, matter upon which the discretion could operate. The pleader, upon general principles, should be clear and fall in his allegations under this head. It would be mischievous, it would be a departure from all just rules, for the court, on a mere general averment that cause for the exercise of the discretion exists, to hear evidence and pronounce a decree. §687 [547]. Under this general clause, it has been held, the court may take jurisdiction over an original defect in the marriage, such as that the consent was obtained by fraud, and render a decree of nullity.^ 1 For the law relating to this title, see Vol. I. 4 827 et seq. ^ Scroggins v. Scroggins, 3 Dev. 535 ; Barden v. Barden, 3 Dev. 548 ; Hitter v. Bitter, 5 Blackf. 81 ; Hamaker v. Hamaker, 18 111. 137 ; ante, § 293. [542] BOOK VII. THE CONSEQUENCES OF THE DIVORCE. CHAPTER XLI. CONSEQUENCES PLOWING BT LAW FROM THE VALID SENTENCE, Sect. 688, 689. Introduction. 690 - 696. The Sentence of Nullity. 697 - 725. The Divorce from the Bond of Matrimony ; aa to — 697. Introduction. 698 - 704. The Status of the Parties. 705 - 726. Property Bights of the Parties and third Persons. 726 - 741. The Diyorce from Bed and Board. § 688. It is not within the power of analysis so to divide any legal subject as to render the correctness of the division one of mathematical certainty ; and to leave it plain to every understanding, that a different division would be legally in- accurate. In the earlier editions of this work, there were discussed, under the general title of the Consequences of the Divorce, several topics, which, in this edition, have found a place elsewhere. The author was satisfied with the former division, and he is satisfied with the present one. The change has been made to serve purposes of practical con- venience both to the writer and to the readers. § 689 [646]. The next chapter will be given to a consid- [543] § 690 CONSEQUENCES OF DIVORCE. [BOOK VII. eratioii of what may be termed the stability of the divorce sentence, and its binding nature, as concerns the parties and third persons. In the , present chapter we are to consider, what, supposing tlie sentence valid, and binding on all the world, comes from it by operation of law. And though, in some portions of the foregoing pages, we have treated of the two kinds of divorce and of the sentence of nullity together, as resting on common doctrines, we shall be obliged to de- part from that method here ; because these three forms of adjudication produce their several distinct consequences. Let us look at, I. The Sentence of Nullity ; II. The Divorce from the Boud of Matrimony; III. The Divorce from Bed and Board. I. The Sentence of Nullity. § 690 [647]. We have seen, that, where a marriage is void, the sentence of nullity has only a declaratory force ; while, where it is voidable, it is to be treated, after the sentence, as having been always void.^ Therefore the results of the sen- tence, in these two circumstances, are substantially alike ; though there are a few points of difference. The general doctrine is, that, after the sentence, the parties are to be re- garded legally as if no marriage had ever taken place ; they are single persons, if before they were single ; ^ and their rights of property, between themselves, are to. be viewed as having never been operated upon by the marriage. Thus the man can neither claim any personal estate which be- longed to the woman, nor have curtesy in her lands.^ She likewise is not entitled to a share in his effects ; neither is she to alimony or to dower.* The children are illegitimate, J Vol. I. § 105, 116, IIS; ante, h 289 ; Gibs. Cod. 446. 2 " If ihe wife becomes a single woman by operation of law, it is the same as if she had always rem.iined single." Anstey v. Manners, Gow, 10. 3 Aughtic V. Aiightie, 1 Phillim. 201 ; Zule v. Zule, Saxton, 96 ; Sellars v. Davis, 4 Yerg. 503; Cage ». Acton, 1 Ld. Raym. 515, 321. Calloway v. Bryan, 6 Jones, N. C. ."Jeg. And cases cited 2 Bright Husb. & Wife, 365, note (a). * Ante, § 376 ; Reeve Dom. Eel. 209 ; Co. Lit. 32 a, 33 6; 7 Co. UO. [544] CHAP. XLI.] FLOWING BY LAW. § 691 equally whether the marriage were voidable or void ; ^ the woman, like any other feme sole, may sue and be sued.^ In- deed, she can recover, in an action at law, her property of "him who was before regarded as her husband.^ § 691 [648]. Where the rights of third persons are con- cerned, the case as to them is different ; particularly if the marriage was voidable, not void.* And the broad doctrine has been laid down, that, while as between the woman and the man she shall have again all her property, and while as against him all claims extinguished by the marriage are re- vived, yet otlierwise it is as against a stranger.^ But even as against a stranger, if the husband, by collusion with the stranger, gave or sold to him, before the sentence of nullity, the goods of the wife, she, on showing the collusion, may reclaim them.^ So, if without collusion the husband has aliened his wife's land, and afterwards the voidable marriage is made void by a sentence of nullity, under Stat. 32 Hen. VIII. c. 28, she may enter during the life of the husband.'^ And it is laid down in Brook,^ that things executed, where tlie hus- band is seised in- rigiit of the wife, shall not be avoided by a sentence of nullity ; as waste, receipt of rent, seisin of ward, presentment to a benefice, gift of goods of the wife, &c. But that otherwise it is in matter of inheritance ; as, if the hus- band discontinues or charges land of his wife, releases or manumits villein, &c.^ After a marriage has been declared void by judicial sentence, it is too late for the husband's I Vol. I. 5 118 ; Gibs. Cod. 446. " Hatchett i?. Baddeley, 2 W. Bl. 1079. See Lean v. Schutz, 2 W. Bl. 1195;. 2 Briglit Husb. & Wife, 366. ' Anonymous, I Dyer, 13, pi. 61 ; Lawson v. Shotwell, 27 Missis. 630, 637. * See post, 5 695. ' Cage v. Acton, 1 Ld. Raym. 515, 521. s Br. Deraignment & Divorce, pi. 10 ; 2 Bright Husb. & Wife, 365. ' 1 Bright Husb. & Wife, 165 ; 2 ib. 365 ; Co. Lit. 326 a. The statute of Mich- igan provides, that, upon the dissolution of the marriage by divorce or sentence of nullity for any cause except the adultery of the wife, she is entitled to the immedi- ate possession of all her real estate, in the same manner as if her husband were dead. Johnson v. Johnson, Walk. Mich. 309. = Br. Deraignment, &c. pi. 18. ' 2 Bright Husb. &. Wife, 364. VOL. II. 35 [ 545 ] § 693 CONSEQUENCES OF DIVOKCE. [BOOK VII. creditors to come in and take the wife's property for his debts, whatever they might have done before.^ § 692 [649]. If land is given to a husband and wife, and' the heirs of their two bodies ; and afterward the marriage, being voidable, is avoided by sentence ; neither of them can have the estate, but they are only tenants for life, notwith- standing the inheritance once vested in them. And if, before the divorce, the parties are disseised of such land, and the husband releases to the disseisor ; the woman, after the di- vorce, may have the moiety of it, though there were no moieties before ; for the divorce converts the estate into moieties.2 " It was held, that, if a lease be made to husband and wife during the coverture, and the husband sows the land, and afterwards they are divorced causa prcecontr actus, the husband shall have the emblements, and not the lessor ; for although the suit is the act of the party, yet the sentence which dissolves the marriage is the judgment of the law."^ § 693 [650]. " In an early case," to quote from Bright on Husband and Wife,* " it is laid down, that, if a man is bound to a feme sole, and afterwards marries her, and afterwards they are divorced, the obligation is revived.® This case was cited and agreed to by Holt, C. J., in Cage v. Acton ; ^ be- cause the divorce, being a vinculo matrimonii by reason of some prior impediment, as prcecontract, &c., makes them never husband and wife ab initio. But if the husband had made a feoffment in fee of the lands of his wife, and then the divorce had been, that would have been a discontinuance, as well as if the husband had died ; because then the interest of a third person had been concerned, but between the parties themselves it will have a relation to destroy the husband's title to the goods. And it proves no more than the common 1 Kelly v. Scott, 5 Grat. 479. 8 Bright Hasb, & Wife, 365, and the authorities there cited. 3 Gland's case, 5 Co. 116 ; 2 Bl. Cora. 123. * 2 Bright Husb. & Wife, 366. 6 2 Br, Coverture, pi. 82, cites 26 H. 8, 7, per Fitzherbert & Norwich. ' Cage V. Acton, 1 Ld. Raym. 515, 521 ; but see Dyer, 140, pi. 39. [546] CHAP. XLI.] FLOWING BY LAW. § 696 rule ; namely, that relation will make a nullity between the parties themselves, but not amongst strangers." ■ § 694 [651] . The doctrine is familiar, that a man is liable for the debts contracted by a woman whom he falsely holds out to be his wife, the same as though she were so in fact.-' This doctrine would apply even to parties living in cohabita- tion under a void marriage. If the marriage however were voidable, whether there were a matrimonial cohabitation or not, the mere fact of its having been entered into would clearly, of itself alone, and on a different principle, render the husband liable, to the same extent as though it contained no imperfection.^ Yet on its being avoided by sentence his liability ceases.^ § 695 [652]. The propositions stated in these later sec- tions * are applicable to voidable marriages ; but it is not clear the rights of third persons would be protected to the same extent, or all the other consequences would follow, where the marriage was merely void, and so the decree of nullity wrought no real change whatever in the legal con- dition of the parties. An infant having, in good faith, mar- ried a man who had a former wife living ; and her father, ignorant likewise of the impediment, having given her a slave, — it was held, not only that the gift invested the hus- band with no title to the property, but further, that, though he afterward sold it with her consent, she being still in her minority, the sale conveyed no title as against her to the purchaser.^ § 696 [653]. It has been held, that, if a woman marries a man who has a former wife living undivorced, and so his marriage is void, she may, upon bill in equity, compel him to account for the rents and profits of the property he took from 1 Vol.1. § 537. " Vol. L§ 116. ' Anstey v. Manners, Gow, 10. * Ante, § 691 -694. ' SeUars v. Davis, 4 Yerg. 503. [547] § 697 CONSEQUENCES OF DIVOECE. [BOOK VII. her under this supposed marriage, and to redeliver the prop- erty to her with its proceeds, retaining for himself the benefit of his improvements.^ And where a man deceives a woman into a void marriage, by falsely representing himself to be a widower, while he is not, but has a former wife living, she may also recover of him compensation for her services ren- dered during the cohabitation with him. The like clajm, moreover, may be enforced, on the death of the man, against his estate in the hands of his legal representatives.^ And in Louisiana it was decided, that a woman under these cir- cumstances can recover of the estate of the deceased a com- pensation, not only for such services, but for the use of her furniture and the hire of her negroes ; together with the money he had received from her, in his lifetime, and money which, after his death, she as his executrix had paid to his creditors previous to the time when the letters were revoked on the appearance of the former wife ; for " she has a right to be indemnified against the consequences of the deceit." ^ II. The Divorce from the Bond of Matrimony. § 697 [654]. Where a marriage is dissolved, having been originally valid, the consequences are quite different from those which follow the annulling of a voidable marriage. On this matter, however, we have no very distinct light from the English common law ; for, in England, no dissolutions of valid marriages by judicial sentence were known previous to the year 1858 ; and, when parliament dissolved such mar- riages by special act, it has been said, the consequence " does not very clearly appear." * And in this country, the statutes of some of the States fully regulate the matter; whence it has arisen, that our decisions do not perhaps quite cover the 1 Yonng V. Naylor, 1 Hill Eq. 383 ; ante, § 291. ^ Higgins V. Breen, 9 Misso. 497. s Fox V. Dawson's Curator, 8 Mart. La, 94. * 2 Bright Husb. & Wife, 366 [548] CHAP. XLI.] FLOWING BY LAW. § 698 whole ground. Let us look at the matter as concerns, First, The status of the parties ; secondly, Property rights of the parties and third persons. § 698 [655]. First. The Status of the Parties. The ap- proved doctrine is, that a divorce from the bond of matri- mony places both the parties, the innocent and the guilty, in the condition of single persons. This indeed has never been questioned, except where some provision in the act or decree, or the general law, has been supposed to work a different result ; but the doubt, to any extent, is clearly without sup- port, either in principle or any sufficient authority. " Parlia- mentary bills of divorce," says Shelford, " usually declare, that the bond of matrimony between the parties shall be wholly dissolved, annulled, vacated, and made void to all intents and purposes whatsoever. But express authority to contract a new marriage is given only to tlie injured party ; making it lawful for such party to marry again, and declaring that the children born in such matrimony shall be legitimate. There is no similar provision for the future marriage of the offending party. It seems more than probable, that, in the early instances of these divorces, it was not supposed or adverted to, that the permission to contract a new marriage could extend to the adulteress. But the subsequent and long acquiescence seems to have established such marriages, or at least entitled them to be established, if any doubt should arise respecting their validity. It is indeed difficult to under- stand, how a marriage can be dissolved as to one of the parties, without being equally dissolved as to the other. And perhaps it may be concluded, that divorce bills, as now worded, though purporting only to relieve the injured party, are a complete dissolution of the marriage ; of which disso- lution the adulteress may legally avail herself, unless ex- pressly prohibited by the same act of the legislature. This point was much discussed in the House of Lords in the year 1800 ; and, although the preponderating opinion seemed to be in favor of the validity of the marriage between [549] § 700 CONSEQUENCES OF DIVORCE. [BOOK VH. the guilty parties, yet some of tlie speakers entertained doubts." 1 § 699 [656]. But let us here proceed less rapidly over the ground than we have done in some other parts of these volumes, and so examine in detail the reasons on which the doctrines we are considering rest. In some of the States, the statute declares, that the decree shall dissolve the mar- riage only as to the innocent party ; and then the difficulty is whether the other can marry again either in the State where the divorce is granted, or elsewhere. In many of the States, the same general law which authorizes tlie divorce, forbids the guilty party to contract a second marriage ; and upon this comes the doubt, whether he may marry in any other State or country. And in respect to the various forms of statutory enactment, we have the query, whether, if the guilty party does marry, he is subject criminally, even in the State which pronounced the divorce, to punishment under the laws against polygamy ; and the still further query, whether, notwithstanding the prohibition, the second mar- riage, even celebrated in his own State, is not valid.^ § 700 [657]. Some of these questions have passed to judicial determination. And thereby the doctrine has become established, that any divorce which releases one party from the marriage necessarily frees the other also, whatever be the terms of it, or of the legislative act under which it is granted ; because there cannot be a husband without a wife, a wife without a husband. If, for example, the statute pro- hibits the party in fault from contracting a second marriage, and nevertheless he contracts one, he may be punished crim- inally under the particular provision, but not punished under a provision against either polygamy or adultery .^ In refusing to hold a defendant, in these circumstances, to be guilty of 1 Shelford Mar. & Div. 476. ^ See, as to this matter, Vol. I. § 304-307. 8 Commonwealth v. Putnam, X Pick. 136; People v. Hovey, 5 Barb. 117. And see Dickson v. Dickson, 1 Yorg. 110, 115 ; Calloway v. Bryan, 6 Jones, N. C. 569 ; Vol. I. S 149, 151, 304 - 307, 355, 374. [550] CHAP. XLI.] FLOWING BY LAW. § 700 polygamy, the Supreme Court in one of the districts of New York, by Selden, J., observed: "The terms husband and wife have a very definite and precise meaning. They are descriptive of persons who are connected together by the marriage tie, and are significant of those mutual rights and obligations which flow from the marriage contract. Until those obligations are assumed, there is no wife; and the term is then applied, not merely to describe a woman who has been married, but as expressive of the relation existing be- tween her and her husband. So long as that relation con- tinues, she is properly a wife ; when that ceases, the term is no longer applicable. Tlie decree dissolves the marriage, and declares that each party is freed from its obligations. The marriage contract, therefore, is at an end ; not only the complainant in the chancery suit [for divorce], but the defendant also, is absolved from all the obligations arising out of that contract. The relation of the parties, consisting of their mutual rights and duties, no longer exists; and it would seem to follow, that the words husband and wife, used to describe that relation, have ceased to be applicable. Certainly the former wife, as to whom the dissolution of the marriage is entirely unlimited, cannot be said, after this de- cree, to have a husband living; for she might marry again, and thus, if that were so, have two lawful husbands at the same time. But husband and wife are correlative terms, so defined by lexicographers ; which implies, that, whenever one can be properly applied, there must be a person to whom the corresponding term is applicable. If, therefore, the defendant is no longer the husband of his former wife, then she is no longer his wife. It was urged in tlie argument, that, while the dissolution of the marriage by the decree was total and absolute on the part of the complainant, it was only partial as to the defendant, who remained subject to a portion of the restraints arising from the marriage contract. In answer to this it may be said, that the obligations of the marriage relation are mutual ; and the abrogation of them on one side pecessarily involves their annihilation on the other ; and ac- cordingly the decree itself provides, that each party is freed [551 J § 701 CONSEQUENCES OF DIVORCE. [BOOK VII. from those obligations. The restraint of the defendant, as to a second marriage, arises, not out of the marriage contract, or from any continuing obhgations to his former wife, but exclusively from the positive prohibition of the statute." ^ § 701 [658]. The same general question came before the Supreme Court of Tennessee under a different aspect. The Kentucky statute of 1808, c. 31, relating to divorces, provided, that the final decree " shall not operate so as to release the offending party, who shall nevertheless remain subject to all the pains and penalties which the law prescribes against a marriage while a former husband or wife is living" ;^ and a woman, divorced in Kentucky for her fault, removed to Ten- nessee, and there married. The Tennessee court held this marriage to be good. Caton, J., delivering the opinion, ob- served : " I have with much perseverance examined and endeavored to find some legal principle that would avoid the marriage between the petitioner [the wife] and John Dickson [the second husband] ; but, to my great regret, I have not been able to find any such principle. I will there- fore briefly state what I have found the law clearly to be, and leave to the legislature to do that which this court has not the power to do. Mary May [the petitioner] was legally divorced from her husband, Benjamin May, by the Union Circuit Court of Kentucky, being a court of competent ju- risdiction over the subject-matter and the parties ; the decree dissolving the marriage is conclusive on all the world.^ The 1 People V. Hovey, 5 Barb. 117. The statute of bigamy in New York provides, that it shall not extend " to any person by reason of any former marriage which shall have been dissolved by the decree of a competent court, for some cause other than the adultery of such person." And it is held to be no defence to an indict- ment for polygamy, that, subsequently to the second marriage, the first has been 80 dissolved for a cause other than the defendant's adultery, though the cause occurred prior to the second marriage. But if the decree of divorce had been previously rendered, it would be otherwise. Balier v. People, 2 Hill, N. Y. 325. 2 See Cox v. Combs, 8 B. Monr. 231. ^ Roach u. Gravan, 1 Ves. sen. 157 ; Burrows v. Jemino, 2 Stra. 733 ; Rex v. Roche, 1 Leach, 4th cd. 134 ; Mills ». Duryeo, 7 Cranch, 481 ; Grant v. Swift, 4 Johns. 34. [552] CHAP. XU] FLOWING BY LAW. § 701 statute of Kentucky provides, that the offending party (the petitioner in this case) shall not be released from the mar- riage contract, but shall be subject to all the pains and penal- ties of bigamy. It is impossible in the nature of things, that all the relations of wife shall exist when she has no husband ; who, as soon as the decree dissolving the marriage was pro- nounced, was an unmarried and single man, freed from all connections and relations to his former wife ; and equally so was the petitioner freed from all marriage ties and relations to Benjamin May, in reference to whom she stood like unto every man in the community. Therefore he has no right to complain of the second marriage ; who has ? Not the Com- monwealth of Kentucky, whose penal laws cannot extend beyond her own territorial jurisdiction, and cannot be ex- ecuted or noticed in this State, where the second marriage took place, and the violation of said laws was effected.^ Had Mary May married a second time in Kentucky, such marriage would not be void because she continued the wife of Benja- min May, but because such second marriage in that State would have been in violation of a highly penal law against bigamy; it being a well-settled principle of law, that any contract which violates the penal laws of the country where made shall be void. The inquiry with this court is not, how- ever, and cannot be, whether the laws of Kentucky have been violated by this second marriage, but, have our own laws been violated? The act of 1820, c. 18, against bigamy, declares it felony for any person to marry having a former husband or wife living. Mary May had no husband living, and is not guilty of bigamy by our statute ; nor has she violated the sanction of any penal law of this State. No principle of comity amongst neighboring communities can be extended to give force and effect to the penal laws of the one society ex-territorially of the other; and, for many reasons, it would be equally inconvenient, not to say impracticable, 1 Folliott V. Ogden, 1 H. Bl. 123, 135 ; Houston ». Moore, 5 Wheat. 1, 69 ; Commonwealth v. Green, 17 Mass. 515, 540 ; Scoville v. Canfield, 14 Johns. 338 ; United States v. Lathorp, 17 Johns. 4. [553] § 702 CONSEQUENCES OF DIVORCE. [BOOK VII. to adopt the principle among sister States of the American Union ; for which this court has the conclusive authority of the Supreme Court of the United States, in Houston v. Moore, 5 Wheaton, 68." And the court, besides affirming the validity of the second marriage, further held, that, though the Tennessee act of 1820, c. 18, against polygamy, made it felony for any person to marry having a former husband or wife living, yet this woman, divorced in Kentucky, had not, within the act, a former husband living, neither had she vio- lated any law of Tennessee.^ § 702 [659]. Likewise a statute, which, in general terms, prohibits the guilty party after a divorce from marrying again, does not apply to one divorced in another State or country. For, observed Pai-ker, 0. J., "the criminal laws of a State do not, ex vigore suo, have force beyond the terri- tory of the State which enacts them." ^ Indeed, it is difficult to find any principle whereon a State could properly inflict either this or any other penalty on one domiciled within its borders, in pursuance merely of what had before transpired in another country, in which he was then resident. To do this would be giving a force to foreign laws and adjudica- tions quite beyond any ordinary examples either of legislative or judicial determination. And so in some late cases it has been adjudged.^ 1 Dickson v. Dickson, 1 Yerg. 110. And see ante, 5 700; Putnam v. Putnam, 8 Pick. 433 ; Cambridge v. Lexington, 1 Pick. 506 ; Ponsfoid v. Jolinson, 2 Blatch. 51. But see dicta in Williams v. Gates, 5 Ire. 535, and Mansfield v. Mclntyre, 10 Ohio, 27. 2 Cambridge v. Lexington, I Pick. 506, 510. " The statutory declaration, that the delinquent party shall never marry again without incurring the penalties de- nounced for bigamous connections, could not have been intended to apply to hus- bands who had never been either citizens or domiciled residents of Kentucky." Maguire v. Maguire, 7 Dana, 181, 187. And see Commonwealth v. Hunt, 4 Cush. 49 ; Dickson v. Dickson, 1 Yerg. HO ; Commonwealth v. Green, 17 Mass. 515 ; 1 Greenl. Ev. 4 376 ; Morgan v. Pettit, 3 Scam. 529. " Clark V. Clark, 8 Cush. 385 ; Ponsford v. Johnson, 2 Blatch. 51. In Missis- sippi, the statute expressly gives the guilty party, in all cases after divorce, the right to marry. Powell v. Powell, 27 Missis. 783. A statute, prescribing a higher punishment for a second offence against the criminal law than the first, is construed [554] CHAP. XLI.] FLOWING BY LAW. § 703 § 703 [659 a]. There is a New York case, in which, under the statute of New York, the contrary has been laid down by- way of dictum, but not decided. The statute provides, that " no second or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, unless the marriage with such former husband or wife shall have been annulled or dissolved for some cause other than the adultery of such person." And Johnson, J., sitting in the Court of Appeals, said of this statute : " Its subject-matter is the prohibition of marriages, within this State, to certain persons who come within its terms. It covers the case of one married abroad and di- vorced abroad for his own adultery, just as plainly as it does the case of a marriage and divorce for the same cause here." ^ We may however observe, that the construction thus inti- mated is contrary to the doctrine laid down in Tennessee, as before stated ; ^ contrary, also, to sound canons of interpreta- tion. Let us test this matter by a few suggestions. For the divorce, pronounced in a foreign jurisdiction, to be recognized as valid in New York, one or both of the parties must have been domiciled at the time of the divorce in the foreign coun- try. Suppose, in the first place, both of the parties had then the foreign domicile. When the divorced one goes into New York, how do the courts of New York know such one to be married ? They can only inquire whether the person was a married person in the foreign country, at the time of coming to New York. If they so inquire, they learn, that in such foreign country no marriage then subsisted ; but has not the person a "former husband or wife " living ? The inter- national law knows no such relation as that of unmarried persons to former matrimonial partners. If tlie New York law does, then it must be construed, according to all sound doctrine, as referring only to what has been done in New York, not to what has been done in the foreign country. to require the first offence to have been committed in the country wherein the stat- ute has effect. People v. Csesar, 1 Parker, 645. 1 Cropsey v. Ogden, 1 Kernan, 228, 235, 236. ^ Ante, 4 701. [555] § 704 CONSEQUENCES OF DIVORCE. [BOOK VIL Secondly ; suppose that, at the time of the divorce, only the complainant was domiciled abroad, while the guilty one was domiciled in New York, the New York courts would then, anterior to the divorce, have held such guilty one (assuming her to be the wife) to be sustaining the status of a married woman. After the divorce, they would hold her to be un- married, not on account of any direct operation in New York of the decree of divorce rendered in a foreign jurisdiction against a citizen of New York, but simply because then she would have no husband ; and a wife without a husband is a contradiction in terms. Would she have a former husband ? Plainly not ; because the person once her husband was only such to her in New York by force of the international law, not by force of the New York law. And no New York statute should be construed to repeal or change international law. When the statute creates the relation (if indeed it does) of an unmarried woman to a former husband, it mustbe construed as purely a domestic affair ; the husband must have been one under the New York law, not one under the inter- national law. But, in truth, the words of this statute should not be construed to create an anomalous domestic relation ; and, not being so construed, should be deemed simply to prohibit the marriage of the guilty party after a New York divorce, not to refer to what the New York courts cannot take cognizance of, namely, the innocence or guilt. of persons under foreign jurisdictions. § 704 [659 6]. A query has been already raised in these volumes,! whether all prohibitions of second marriage to the divorced party should not be construed as operating merely by way of penalty, not as rendering the marriage void, unless express words of nullity are employed. And there are strong reasons for holding this to be their effect.^ I'Vol. I. f 306. ^ See, however, as adverse to this intimation, Calloway v. Bryan, 6 Jones, IS. C. 569, which compare with Williams v. Gates, 5 Ire. 535, and Park v. Barron', 20 Ga. 702 ; ante, § 701, which also compare with Vol. I. h 2S3, 286, 287. [556] CHAP. XLI.] FLOWING BY LAW. § 706 § 705 [660]. Secondly. Property Rights of the Parties and third Persons. Coming now to consider the effect of the dissolution of a yalid marriage upon these rights, we must remember, that the decree of divorce, so far from undoing the original marriage, expressly affirms it ; ^ and therefore does not -restore the parties to their former condition, but places them in a new one. Consequently all transfers of property which were actually executed, either in law or fact, abide ; for example, the personal estate of the wife, reduced to pos- session by the husband, remains his after the divorce, the same as before.^ But we shall see, in subsequent sections, that this divorce puts an end to all rights depending upon the marriage, and not actually vested; as dower in the wife, curtesy in the husband, and his right to reduce to possession her choses in action. When, after this divorce, the man dies, the woman is not his widow, therefore no rights which the law gives to widows are hers.^ §706 [661]. Dower. Of dower. Lord Coke says: "Con- cerning the seisin, it is not necessary that the same should continue during coverture ; for, albeit the husband aliens the lands or tenements, or extinguishes the rents or commons, &c., yet the woman shall be endowed. But it is necessary that the marriage do continue ; for, if that be dissolved, the dower ceases, uhi nullum matrimonium, ibi nulla dos." * It is notice- able, however, that he is here speaking of the effect of a decree annulling a voidable marriage ; while possibly we are not to look to the English jurisprudence for authorities con- cerning the consequences of the dissolution of marriage for causes arising subsequently to its celebration. Still, the same doctrine is considered applicable in the latter circumstances ; and so the common law of this country is clearly estab- lished, that no woman can have dower in her husband's lands, unless the coverture were continuing at the time of his death. The reason appears to be, that, as the English 1 Ante, § 262. 2 Lawson v. Shotwell, 27 Missis. 630, 636. 8 Dobson V. Butler, 17 Misso. 87. * Co. Lit. 32 a. [557] § 707 CONSEQUENCES OF DIVORCE. [BOOK VH. common law never recognized any right of dower unless the woman were covert when the husband died, our courts can- not create such a right in her by construction, merely because, in consequence of a legislative enactment, she is found in circumstances unknown to the common law.^ And this re- sult is in harmony with the universal doctrine, that the divorce we are considering puts an end to all rights (as the husband's to the wife's choses in action and to curtesy) rest- ing on the marriage, and not actually vested.^ § 707 [662], It is a little remarkable, however, that, when this question of dower arose in New York, after having been decided in the way just mentioned in several of the States, with entire unanimity of judicial opinion, it travelled through the Supreme Court, where it was passed upon by a divided bench, into the Court of Appeals, without any reference being made, in either of these courts, by the counsel or by any of the judges, to any one of the prior American direct adjudications, or to any of the numerous illustrative deci- sions, respecting the husband's rights to the wife's choses in action, and to curtesy. " The question," said the judge who pronounced the opinion in the latter tribunal, " is entirely new." In the Supreme Court, the majority of the bench sustained what we have seen to be the general doctrine ; while, in the Court of Appeals, a contrary judgment was rendered, the woman being considered entitled to her dower.^ i 1 Given v. Marr, 27 Maine, 212 ; McCafferty v. McCafferty, 8 Blackf. 218 ; Clarlc V. Clark, 6 Watts & S. 85, 88 ; 4 Kent Com. 53, note, 54 ; Levins ». Sleator, 2 Greene, Iowa, 604 ; Cunningham v. Cunningham, 2 Ind. 233 ; Whitsell v. Mills, 6 Ind. 229 ; Miltimore v. Miltimore, 4 Wright, Pa. 151 ; Burdick v. Briggs, 11 Wis. 126; Eicew. Lumley, 10 Ohio State, 596; McCraney v. McCraney, 5 Iowa, 232. 2 Ante, § 705 ; post, § 712, 714. 8 Wait V. Wait, 4 Barb. 192, 4 Comst. 95. In the New York case of Charruaud V. Charruaud, 1 N. Y. Leg. Obs. 134, not referred to in Wait v. Wait, it was laid down, — and on this the case proceeded, — that the wife cannot have dower unless the marriage were " subsisting at the death of the husband." See also, as recog- nizing the doctrine of Wait v. Wait, Forrest v. Forrest, 6 Duer, 102, 163 ; but, in this latter case, the doctrine seems to be placed, not so much on general prin- ciples, as on the peculiar phraseology of the New York statute. [558] CHAP. XLI.] FLOWING BY LAW. § 709 It had been held however in Ohio, that a divorce decreed on the prayer, of the husband in a foreign State, while the wife was an inhabitant of Ohio, did not take away her right of dower in her own State. ^ § 708 [662 a]. That the wife cannot have dower unless she is wife when the man who was her husband dies, ap- pears, moreover, from the consideration, that, during the coverture, the law recognizes no interest vested in her, under the name of dower or otherwise, in her husband's real estate.^ She has only the possibility of an interest, on surviving him ; but there can be no survivorship without death, and the death of a man not her husband cannot make her a survivor to give dower. § 709 [663]. But in many or most of the United States it is provided by statute, that, when the wife is the innocent party, she shall be entitled, immediately on the divorce, to dower in the lands of the husband, in like manner as if he were dead. In such cases, the dower is not to be set off to her in the divorce suit, but she is to recover it by the same process she would if he had died.^ Her right extends as well to lands aliened during the coverture, as to those where- of he was seised when the dissolution of the marriage took place.* This provision is contained in the statutes of Indiana ; and there, a decree of divorce having been rendered with the following remarkable and novel clause in it : " The court being satisfied by the evidence, that the complainant and defendant are both guilty of malconduct towards each other, it is therefore ordered, adjudged, and decreed, that . . . this divorce is not granted upon the misconduct of the said de- fendant alone, but upon the misconduct of both the parties" — the wife was held not entitled to dower under the statute.^ ' Mansfield v. Mclntyre, 10 Ohio, 27. " Barbour v. Barbour, 46 Maine, 9. ' Smith v. Smith, 13 Mass. 231. * Davol V. Howland, 14 Mass. 219 ; Harding v. Alden, 9 Greenl. 140. Cunningham v. Cunningham, 2 Ind. 233. [559] § 711 CONSEQUENCES OP DIVORCE. [BOOK VU. § 710 [664]. Yet a wife cannot have dower in lands her husband had aliened before the enactment of the statute creating this peculiar kind of dower, though the statute were in force at the time of the divorce. It will not be construed as intended to apply to such lands ; or, if so intended, it will be adjudged unconstitutional as divesting vested rights. The purchaser of the land bought it with such an encumbrance of dower as the law, existing at the time of the purchase, put upon it ; and the legislature cannot, by a new act, enlarge the encumbrance.^ It should be borne in mind, that, in re- spect to dower under these circumstances, the legislative enactment creates a right which, without it, does not exist. But the same rule does not apply where the right rests on the marriage itself ; for there it must end, even as against third persons, whenever and however the marriage is dissolved. For example, the interest of the husband in the real estate of the wife, having no other foundation than the ' coverture, fails with it ; and the estate must revert to her, though the divorce is by special legislative act, for a cause unknown to the general law.^ § 711 [665]. Where the words of the statute were, that, on the dissolution of the marriage by divorce for the adultery of the husband, the wife should have " her dower, to be as- signed to her in the lands of her husband, in the same man- ner as if such husband was naturally dead," it was decided, that this provision applies to a case, where neither the hus- band nor the wife is an inhabitant of the State ; where the divorce was decreed by the courts of another State, in which the wife was resident, but in which the husband had never resided ; and to lands which were aliened before the divorce.^ 1 McCafferty o. McCafferty, 8 Blackf. 218; Given u. Man-, 27 Maine, 212; Comly V. Strader, Smith, Ind. 75, 1 Iiid. 134. If the statute were in force at the time of the alienation, as well as before the divorce, it would be otherwise; post, § 711. See also Whitsell v. Mills, 6 Ind. 229. 2 Townsend v. GriflSn, 4 Harring Del. 440 ; Starr v. Pease, 8 Conn. 541 ; Wright V. Wright, 2 Md. 429. And see post, k 714. ' Harding v. Alden, 9 Greenl. 140. But see the observations of the court in Mansfield ». Mclntyre, 10 Ohio, 27. [560] CHAP. XLI.] FLOWING BY LAW. § 713 In such a case, if the lands were aliened before the enactment of the statute, the doctrine of the last section would control, and produce a different result. § 712 [666]. Curtesy. The same common-law doctrine which we have been considering, in its application to dower, applies also to the interest which the husband acquires, by the marriage, in the real estate of the wife. Upon a divorce for causes arising subsequently to its celebration, equally as upon a sentence of nullity, all the husband's claim to the lands of his wife ceases ; and she is entitled to recover im- mediate possession of them, not only as against him, but also as against his grantee, if he has aliened them. The principle is, that the marriage constitutes him tenant in her right of all her freehold property, during the coverture, but no longer. Upon the birth of living issue capable of taking her estate of inheritance by heirship, he becomes tenant by the curtesy initiate of it ; but the death of the wife is necessary to make such tenancy consummate ; and there can be no death of the wife if the woman ceases to be a wife before her death.^ The divorce has the effect thus mentioned, not only upon the wife's estates of inheritance, but also upon her freehold in- terests ; such, for instance, as lands which she holds in dower by reason of a former marriage.^ Yet she cannot, after the divorce, maintain the particular form of action called trespass against the husband's grantee ; ^ and, the termination of the coverture being the act of the law, the lessee of the husband is entitled to the emblements.* § 713 [667] . It has been decided in Delaware, that a legis- 1 Wheeler v. Hotchkiss, 10 Conn. 225; Starr ». Pease, 8 Conn. 541 ; Barber v. Root, 10 Mass. 260; Renwick v. Renwick, 10 Paige, 420, 424; Doe v. Brown, 5 Blackf. 309; Mattocks ». Steams, 9 Vt. 326; Burt u. Hurlburt, 16 Vt. 292; Sackett ». Giles, 3 Barb. Ch. 304 ; Oldham v. Henderson, 5 Dana, 254 ; Town- send V. Griffin, 4 Harring. Del. 440 ; Boykin v. Rain, 28 Ala. 332 ; ante, § 710. 2 Gould V. Webster, 1 Tyler, 409. » Wheeler v. Hotchkiss, 10 Conn. 225. * Gould V, Webster, 1 Tyler, 409 ; Oldham v. Henderson, 5 Dana, 254 ; ante, § 692. VOL. II, 36 [561] § T14 CONSEQUENCES OF DIVORCE. [BOOK VII. lative divorce from the bond of matrimony, in terms restoring to the wife all her lands, has the effect to divest judgment liens created by the husband, and annul sales made under these liens. The court put the decision as much on the necessary operation of the divorce itself, as on the phrase- ology of the act granting it. Said the judge: "The right of curtesy is a right appertaining to a husband, or one who was such at the wife's death. This right does not become perfect until issue born and the death of the wife, and can never be perfected if the relation of husband and wife be destroyed before the wife's death. With the destruction of that rela- tion, all its rights and obligations cease, of course ; and the right of the husband's creditors cannot exceed his right. The lien of the judgment in this case, upon the husband's interest as tenant by the curtesy initiate in the wife's lands, was a right of the creditor vested no further than as subject to all the legal incidents of the relation of husband and wife ; un- certain in its character, and liable to be divested in any way in which the relation can be destroyed before the husband's tenancy by the curtesy became absolute."^ Substantially the same view has been taken of the matter in Connecticut ; ^ and it seems to result equally well from principle^ as from authority. § 714 [668] . Choses in action. The same general doctrine now being considered applies to the wife's choses Jn action. While the marital relation exists, the husband may reduce them to possession, but he cannot do so after it has ended. His right to use his wife's name, in a suit to recover them, rests solely upon the coverture, and ends with it as well when it is terminated by divorce as by death.* And if, after a 1 Townsend v. Griffin, 4 Harring. Del. 440, 442. ' Starr K. Pease, 8 Conn. 541. » See Vol. I. S 692 ; ante, § 705, 706, 708; po8t,«§ 714. ' Renwick ». Renwick, 10 Paige, 420, 424 ; Browning v. Headley, 2 Rob. Va. 340 ; Legg v. Legg, 8 Mass. 99 ; Fink v. Hake, 6 Watts, 131 ; Lodge v. Hamil- ton, 2 S. & R- 491 ; Wintercast v. Smith, 4 Rawle, 177. See also Clarke v, MeCreary, 12 Sm. & M. 347; Price o. Sessions, 3 How. U. S. 624 j Holmes i>. [562] CHAP. XLI.] FLOWING BY LAW. § 715 divorce has extinguished this right, the husband receives money on anything due to her in action, she may recover it of him in a suit for money had and received.^ The doctrine is, tliat the divorce places her in the same situation in respect to this species of property, as if he were dead ; and hence, when a legacy for the wife came into the hands of the hus- band as .executor and trustee, and she afterward, on her petition, obtained a divorce from the bond of matrimony, the court held, that he had not, in contemplation of law, re- duced it into possession, and that so she was entitled to it as against him.^ § 715 [669]. How far, on the decease of the husband, his assignee of the wife's choses in action can claim them as against her, appears not to be entirely settled upon authority.^ But her rights, whatever they may be, are the same upon a divorce as upon the husband's death.* Assuming that the assignee for a valuable consideration is protected as against her,^ still the mere creditor is not ; and such creditor cannot set oiF jgainst her sole suit a debt which the husband had contracted.^ Thus, those who administer on the estate of a divorced wife's deceased father cannot diminish her claim for her share in the estate, by showing a loan made by the father to the husband during the cohabitation. But they can set up, in diminution of it, an advance so made by the father to Holmes, 4 Barb. 295 ; "White ». White, 5 Barb. 474 ; Wood v. Simmons, 20 Misso. 363. 1 Legg t>. Legg, 8 Mass. 99. ^ Kintzinger's Estate, 2 Ashm. 455 ' 2 Kent Com. 136 et seq. See post, ^ 735. * Ante, § 714. ' Where a husband assigned his wife's chose in action, without consideration and the assignee assigned it for good consideration to another who had no Icnowl- edge of the facts concerning the first assignment, and thereupon the wife obtained a divorce a vinculo, and this second assignee received afterward the money in pay- ment of this chose in action ; it was held, she could not recover the money back, McConnell v. Wenrich, 4 Harris, Pa. 365. But other anthorities do not place the assignee in any better condition than the husband. Such was the doctrine estab- li«hed in a late Missouri case, very fully considered. Wood v. Simmons, 20 Misso 363. See post, § 735. « Fink V. Hake, 6 Watts, 131. And see Lodge v. Hamilton, 2 S. & R. 491. [ 563 } § 716 CONSEQUENCES OF DIVORCE. [BOOK VH. him on her account.^ And in respect to the assignee of the husband, even supposing him to be protected in his assign- ment, still his right can never exceed the assignor's, which is, not absolutely to recover the chose in action, but to recover it subject to her claim for an equitable provision out of it. In determining the amount of such provision, the ill-conduct of the husband, on which the divorce was founded, may be taken into the account ; and, in a case wherein,' besides such ill- conduct, it appeared, that, before the assignment of the par- ticular chose in action in controversy, he had received and squandered much of her fortune, the court allowed her the whole .^ § 716 [669 a]. Lands conveyed to Husband and Wife. It is familiar to the legal profession, that, if during coverture married parties receive a deed of land running to the two jointly, a peculiar estate is created, in consequence of which the survivor will take the whole, though the other had aliened of it whatever he could alien. There is a late Tennessee case wherein it appeared, that, after the husband and j?ife had become so seised of real estate, it was levied upon under ex- ecution and sold for the husband's debts ; and then the wife obtained a divorce a vinculo from him, for his fault ; and the court held, that the purchaser was entitled to retain the land until the death of the husband, and forever, unless, after the husband's death, she should be living, when it would become hers absolutely. Tlie decision proceeded upon common-law principles, but the court supposed the exact question had never before been adjudicated.** If the author's views of this point be deemed worthy of examination, they are here given as follows : The purchaser under the execution could stand in no better situation toward the wife, in respect of this land, than the husband stood ; because the well-established doc- trine, that, were the husband to sell such an estate, and then i Hake v. Knk, 9 Watts, 336. 2 Browning v. Headley, 2 Rob. Va. 340. See Pago v. Estes, 19 Pick. 269 ; post, § 733. s Ames V. Norman, 4 Sneed, 683. [564j CHAP. XLI.] FLOWING BY LAW. § 717 die, it would immediately become absolutely the wife's, shows this estate to be one in which uo third person can stand su- perior to the husband. But could the husband thus hold the estate, after the divorce, if it were not sold, to the exclusion of the wife ? If he could, then he would have in it a supe- rior right to hers ; but the settled law of such an estate is, that here husband and wife are equal. She, on the other hand also, could not hold it exclusively as against him. Moreover, it could not revert to the grantor ; because all the interest of the grantor had gone out of himself, and the op- eration of the divorce did not, like a sentence annulling a voidable marriage, extend back beyond the time it was pro- nounced ; it did not send its influence so far back as to affect the grantor's deed. The result is, that two persons, a man and a woman, once married, but not married now, have to- gether the entire fee of the estate, neither one having a claim superior to the other. While they were in law one person, their interest in the .estate was indivisible ; but the law has come and severed their unity of person, so also has it severed, in the same way, their unity of estate, making them tenants in common. § 717 [670]. Marriage Settlements, 8fc. From the propo- sition, that the divorce we are considering divests each party of those executory property rights which have no basis but the coverture, such as curtesy, dower, and the husband's claim to the wife's choses in action, while it has no operation upon vested interests,^ it follows, that property settled upon the husband or wife, or held by third persona for the benefit of either, remains usually after the divorce the same as before .^ And it is immaterial in respect of this question, as it is in respect of the questions already discussed, for what cause the marriage was dissolved, or whicli party was the guilty one. Thus, where, pursuant to an antenuptial agreement, 1 Ante, § 705-715. "■ Buffaloe v. Whitedeer, 3 Harris, Pa. 182; Dalton v. Bernardston, 9 Mass. 201 ; West Cambridge v. Lexington, 1 Pick. 506. [565] § 717 CONSEQUENCES OF DIVOKCE. [BOOK VII. husband aiid wife had conveyed her real estate to a trustee, to be held for her benefit during her hfe, with a life interest in the husband if he should survive her, and then to the heirs of the wife on the decease of both, making him thus substan- tially tenant by the curtesy, — it was decided, that he lost no rights under this settlement by a divorce for his fault from the bond of matrimony ; and that so he would still be en- titled, surviving her, to the use of this property during his life.^ In like manner, where a husband and wife entered into an agreement, through a trustee, intended to secure her a separate maintenance ; the husband covenanting with the trustee, who undertook to be responsible for any debts of her contracting, that he would pay him, for her use, a certain sum, in regular instalments, " as alimony for and during the term of her natural life " ; it was held, that a subsequent divorce — the record does not show for whose fault decreed — followed by a marriage of the wife, did not discharge the former hus- band from his liability to maintain her under his covenants.^ Tins doctrine was in a New York case questioned by Assist- ant V. C. Hoffman, who laid down the proposition, " that a decree for a divorce a vinculo matrimonii, for the crime of the wife, annuls every provision made for a wife in marriage ar- ticles, or a marriage settlement in the nature of jointure, or otherwise, as well as any provision in articles executed upon a separation." But in the case before him he sustained the claim of the woman ; it appearing, that, during the coverture, the husband, knowing' she was guilty of adultery, had en- tered into articles of separation, and covenanted to pay her an annuity ; the payment of which annuity he had actually continued for three years after the divorce, and had then made 1 Babcock v. Smith, 22 Pick. 61. ' Blaker v. Cooper, 7 S. & E. 500 ; s. p. where the wife was the party deliu- qaent, Miller v. Miller, 1 Sandf. Ch. 103. And see Heariside ». Lardner, 3 Law Reporter, 201, 218, Aug. 1840, before Baron Gurney ; Jee v. Thurlow, 4 D. & E. 11 ; McGowan ». Caldwell, 1 Cranch C. C. 481, where a divorce o vinado, in which it was declared in the decree that articles previously entered into for alimony should remain in fall force, was held to be no bar to an action on a bond given to secure the performance of those articles. [566] CHAP. XLI.] FLOWING BY LAW. § 719 a new agreement directly with her, secured by mortgage of his real estate, — to foreclose which mortgage she, after con- tracting a second marriage, brought her bill.^ § 718 [671]. Where a testator directed an annuity to be paid to his nephew Thomas Bullock and Rebecca his wife, and their children; and, after he had died, the marriage between Thomas and Rebecca was dissolved, but the trustees, Thomas being alive, refused to pay over any portion of the annuity to her ; it was held, on demurrer to her bill brought to enforce the payment of such portion as the court should order, that she was entitled to the relief prayed. She being personally named in the bequest, the word "wife" must be understood as descriptive of the person, not of the character in which she was to take. It does not appear what proportion of the an- nuity the court finally awarded her.^ § 719 [672]. But it would seem, — though we have little light on this point, — that, when a court of equity is called upon to exercise a discretionary power, as to decree the spe- cific performance of a contract,^ it will, if justice requires, re- fuse, after the marriage is dissolved, to give effect to a mere agreement for a settlement. Thus, where, before the nuptials, there had been a contract between the parties and trustees, in which the intended husband undertook, that, after the nup- tials, he would convey to the trustees certain property, to be held in trust to pay the dividends and profits to himself dur- ing his natural life ; and, in case of his death, " leaving the said Mary," the intended wife, then to pay the same to her, with certain limitations over ; and, before he had executed the conveyance, there was a divorce oii his prayer for her fault, and, after this, he died, — it was held, that a suit in equity for her benefit could not be maintained, to enforce the 1 Charruaud v. Charruaud, 1 N. T. Leg. Obs. 134. See also Hastings v. Orde, 11 Sim. 205. 2 Balloeli V. Zilley, Saxton, 489. ' And see, in regard to this distinction, Charruaud v. Charruaud, 1 N. T. lieg. Obs. 134. And see post, § 741. [567] § 720 CONSEQUENCES OP DIVORCE. • [BOOK VII. specific performance of the agreement. "The marriage," said the court, " is dissolved ; and all rights and obligations dependent on the existence of the marriage relation are ex- tinguished. The parties are no longer husband and wife, but are permitted to marry at pleasure. The husband is released from all obligation . to maintain the wife, and his right to her separate property is at an end. The rights of the wife to his estate, and to receive a support from it, further than they are saved by the statute or allowed by the court in the way of alimony, are determined. It follows, that this suit cannot be maintained. The sole object of the agreement, so far as the wife was concerned, was to provide her a support as the widow of Somerville [the husband]. Before any estate vested in the trustees, the marriage was dissolved, for her misconduct, and she ceased to be his wife. He was no longer legally or morally bound to support her, or to carry into eiFect any provision previously intended for that purpose. His duty to support her was extinguished by the dissolution of the marriage, and with it fell her right to demand the execution of the trust. It is only in the capacity of wife, or widow, that she can compel the performance of the agreement. This must be the basis of her right to relief. She stands in neither relation. Ceasing to be the wife of Somerville when living, she could not become his widow by surviving him. If the estate had been conveyed to the trustee in pursuance of the agreement, it is possible that her right to receive the income would not be lost by the divorce ; but, upon this question, we express no opinion." ^ §720 [672 a]. There is some difficulty in laying down, even when we make the attempt unfettered by precedent, precise rules concerning the operation of settlements, agree- ments for settlement, agreements for separate maintenance, and the like, after a divorce has dissolved the marriage. But suppose there is a mere executory agreement to pay money, 1 Clarke ». Lott, 11 HI. 105. And see Cartwright v. Cartwright, 19 Eng. Jj. & Eq. 46. [568] CHAP. XLI.] • FLOWING BY LAW. § 722 to transfer property, and so on, while what is so agreed re- mains undone ; and suppose the consideration for the agree- ment to be the marriage, or the obligations which grow out of the marriage, — here, if the marriage is dissolved, the con- sideration, which is the life and the soul of the agreement, is taken out of it, and nothing remains therefore to be enforced. § 721 [672 6] . Suppose again the application is made to a court of equity to enforce the specific performance of a con- tract of the kind under consideration, and nothing appears in the case, such as is mentioned in the last section, showing the contract to have become void in law ; still, the court of equity, acting on the familiar rule that he who would have equity must do equity, might either refuse absolutely to de- cree the performance, or refuse unless the plaintiff would ex- ecute what was right in the premises. On the other hand, there may be agreements of the general nature now under consideration, the enforcement of which, after a divorce, would be legal, equitable, and just. § 722. In a late Massachusetts case, it appeared that by articles of separation a husband covenanted, in consideration of his wife's withdrawing a libel for divorce, to pay a sum yearly to a trustee for her use during her life. Afterward the wife, by another similar libel, obtained a decree of divorce from the bond of matrimony, and for alimony, fixed by agreement at the same sum which was payable under the articles ; and the wife, after receiving two instalments of the alimony, married another man, whereupon the alimony was reduced by the court to a nominal sum. It was therefore held, on a suit brought by the trustee against the husband, that the latter was not holden, under these circumstances, to pay the money he had contracted in the articles to pay. It seemed to be admitted in Ihe case, that the decree for ali- mony was, by the understanding of the parties- and the court at the time it was pronounced, to stand in the stead of the provision made under the articles ; therefore the articles [569] V k 7^23 CONSEQUENCES OF DIVORCE. [BOOK VIL were, for this reason, if no other, practically made void by the decree in the divorce suit.^ § 723 [673] . Capacity to be Witnesses in each other's Suits. After the marriage is dissolved by divorce, the wife has not the incapacity of interest preventing her from being a witness for or against her late husband, in his suits. Still, whatever occurred during the coverture remains under the protection of the rule of public policy, which, to promote freedom and harmony in matrimonial intercourse, holds as confidential all facts afiFecting either party, the knowledge whereof came from any source to the other during the subsistence of this rela- tion.2 Therefore when the relation is terminated by divorce, the woman is on this ground disqualified to testify against her former husband, concerning any matter occurring while it continued.^ But the privilege of this protection may be waived by both parties consenting to waive it, after a di- vorce, though it appears they will not be permitted to waive it before ; * and so, if the divorced wife is willing, she may testify in favor of her late husband to whatever happened during the coverture. Thus, in an action for criminal con- versation, brought by the husband against the adulterer,, the divorced wife is a competent witness to prove the adultery.* And this principle has been carried to the extent of permit- ting the widow, the marriage being dissolved by death, to testify to disclosures of the husband, which " he could not have wished to conceal, but must have desired to make known, through her, if he found no other means of doing 1 Albee o. Wytnan, 10 Gray, 222. " 1 Greenl. Ev. § 334, 335, 338. ' Barnes v. Camack, 1 Barb. 392 ; The State v. J. N. B., 1 Tyler, 36, overruled in The State w. Phelps, 2 Tyler, 374; The State v. Jolly, 3 Dev. & Bat. 110; Monroe v. Twistleton, Peake Ev. App. ed. of 1822, p. 39, Peake Ad. Cas. 219. * Barker v. Dixie, Cas. temp. Hardw. 264 ; 2 Daniell Ch. Pract. Perkins's ed. 988 ; 1 Greenl. Ev. § 340. Yet see Merriam v. Hartford and New Haven Railroad, 20 Conn. 354. 6 Ratcliff «. Wales, 1 Hill, N. T. 63 ; Dicketman v. Graves, 6 Cush. 308. And see Stanton v. Willson, 3 Day, 37. [570] CHAP. XLI.] FLOWING BY LAW. § 725 SO." ^ In like manner, during the coverture, where a statute takes away the disqualification of interest, the wife, it has been held, may be a witness /or her husband.^ § 724 [674]. Other Consequences. The dissolution of a valid marriage does not impair the right of the husband to maintain, against a third person, the action of criminal con- versation for debauching the wife while the coverture ex- isted .^ § 725 [675]. But such dissolution takes away the hus- band's right to administer on his late wife's estate after her decease. Yet conduct which would have entitled the wife to a divorce, if she had applied for it, does not have the effect, if in fact no divorce was obtained.* 1 The State v. Jolly, 3 Dev. & Bat. 110 ; Hester v. Hester, 4 Dey. 228. Pro- fessor Greenleaf, 1 Greenl. Er. § 338, after saying, the rule concerning coniidential communications has an application to husband and wife like what it has to client and attorney, adds : " Accordingly, the wife, after the death of the husband, has been held competent to prove facts coming to her knowledge from other sources, and not by means of her situation as wife, notwithstanding they related to the transac- tions of her husband." And he cites Coffin v. Jones, 13 Pick. 445; "Williams r. Baldwin, 7 Vt. 506 ; Welles v. Tucker, 3 Binn. 366. These authorities certainly give some countenance to this distinction, but no one of them appears very clearly to establish it ; and it is believed that the view taken in the text best accords both with the reason of the thing and the decided cases. Yet perhaps the true view may be to consider the reasoning of the text as applicable to cases where the husband, after a divorce, is a party to the suit, or his legal representatives, after his death, are parties ; and the reasoning of Professor Greenleaf, as applicable to cases where, if the husband were alive, he would be a competent witness, but where, at the same time, neither the husband nor the wife could be called upon to disclose matters resting in the confidence of the matrimonial relation. And see McGnire v. Ma- lony, 1 B. Monr. 224; Aveson v. Kinnaird, 6 East, 188. Yet see Cornell v. Van- artsdalen, 4 Barr, 364, and other cases cited by Greenl. in later editions. ^ Merriam ». Hartford and New Haven Railroad, supra. And see Mayrant v. Guignard, 3 Strob. Eq. 1 12 ; Bisbing v. Graham, 2 Harris, Pa. 14. 8 Ealer v. Flomerfelt, 1 Wheat. Dig. ed. of 1843, 828, 1 Ashm. 53, note; Rat- cliflFu. Wales, 1 Hill, N. Y. 63 ; Dickerman v. Graves, 6 Cush. 308. * Altemus's case, 1 Ashm, 49. And see Lodge v. Hamilton, 2 S. & K. 491. , [571] § 728 CONSEQUENCES OP DIVORCE. [bOOK.VH. III. The Divorce from Bed and Board. \ 726 [676]. We have already had occasion incidentally to consider various points concerning the effect of a divorce from bed and board.^ The cardinal doctrine is, that the marriage remains in full force, but the parties are legally authorized to live separate. Yet the precise effect of this divorce, in many minor particulars, is subject to doubt and conflict in the American authorities ; though most of these questions are settled in England. Perhaps the true view is to consider the result as modified by the phraseology of dif- ferent statutes, and sometimes by the language of the specific decree. § 727 [677]. Obviously a divorce from bed and board does not entitle either of the parties to marry again. And there is no difference in this respect, whether it was granted by a domestic or a foreign tribunal.^ We have seen, that there was a time in the history of the English law, when persons separated a mensd et thoro were not punishable as polyga- mists, if they contracted a second marriage ; yet the second marriage was void, the same as now; because the first was still subsisting.^ § 728 [678]. In England the 107th canon of 1603 provides,* that, " in all sentences pronounced only for divorce and sepa- ration a thoro et mensd, there shall be a caution and restraint inserted in the act of the said sentence, that the parties so separated shall live chastely and continently ; neither shall they, during each other's life, contract matrimony with other persons. And for the better observation of this last clause, the said sentence of divorce shall not be pronounced until 1 Ante, 5 226, 228, 435-440, 442. 2 Young V. Naylor, 1 Hill, Eq. 383. ' "Vol. I. k 297, 299 ; ante, § 225. * In respect to these canons, see Vol. I. § 51, 318 ; ante, § 241. [572] CHAP. XLI.] FLOWING BY LAW. § 729 the party or parties requiring the same shall have given good and sufficient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition." ^ In obedience to this canon, the Ecclesiastical Courts required the promoter, on the cause being assigned for hearing, if the husband, to give a bond in one hundred pounds, with one surety payable to the judge personally, his executors, and administrators, conditioned that he will not at any time thereafter, during the life of the defendant, inter- marry with any other individual. If the wife is the party promoting, a man must execute the bond in her stead.'-* This must be done before the sentence of divorce is signed ; other- wise, by the 108th canon, the sentence itself is void. But it is held, that, if the bond is omitted through mistake, the court has power to correct the error, by permitting it to be filed afterward, and then signing the sentence anew.^ This is a peculiarity of the English canon law, probably not binding upon any of the American tribunals ; there being no reported case in which the practice has been followed. § 729 [679] . It was observed by the Louisiana court, that a divorce from bed and board as completely separates the parties as a divorce from the bond of matrimony ; except that, after the former, neither of them can legally marry again.* If the Louisiana law is as thus indicated, it dififers greatly from the law of England and of the other American States. A more accurate statement of the general law would be, that a divorce from bed and board works no change in the relation of the parties, either to each other or to third persons, except in authorizing them to live apart until they mutually come together.^ In coming together, no new mar- 1 Poynter Mar. & Diy. 339. ^ Coote Ec. Pract. 343, 344. ' Dysart v. Dysart, 1 Robertson, 543. * Savoie v. Ignogoso, 7 La. 281, 285. But the divorce does not dissolve the marriage. Gee v. Thompson, 1 1 La. An. 657. ^ " The divorce is only a legal separation, terminable at the will of the parties ; the marriage continuing in regard to everything not necessarily withdrawn from its operation by the divorce." Dean r. Hichniond, 5 Pick. 461, 468 ; ante, § 228. [573] § 732 CONSEQUENCES OF DIVORCE. [BOOK VII. riage is required ; neither, it seems, under the general law, are any new proceedings in court necessary ; but the recon- ciliation, of its own force, annuls the sentence of separation. How this particular matter stands under various statutory enactments, and under decrees differing in form from the English, appears not clear upon the authorities.^ § 730 [680]. This divorce does not, at common law, and without statutory aid, change the relation of the parties as to property.^ Thus it neither takes away the right of the wife to dower, nor entitles her to recover it during the life of the husband.^ § 731 [681]. For the reasons already mentioned, this di- vorce does not, at the common law, take from the husband his right to the possession of the wife's real estate, either during her life or after her death, if he is otherwise entitled to it, as tenant by the curtesy.* But some of the States have the statutory provision, that, upon the divorce, slie may take immediate possession of her real property. Still, such a statute does not operate to destroy the matrimonial rela- tion ; it only authorizes her to recover and enjoy her lands, even as against purchasers from tlie liusband for a valuable consideration, in like manner as if the coverture were termi- nated. She may enforce this right in an action against the tenant.^ § 732 [682]. In like manner the husband's common-law .right to reduce into possession the wife's clioses in action 1 Barrere v. Barrere, 4 Johns. Ch. 187 ; Thompson ». Thompson, 2 Dall. 128 ; McKarracher v. McKarracher, 3 Yeates, 56 ; Stephens v. Totty, Cro. Eliz. 908. " Kriger v. Day, 2 Pick. 316 ; Clark v. Clark, 6 Watts & S. 85; Dean v. Rich- mond, 5 Pick. 461. " Park on Dower, 20; Stowell's case, Godb. 145 ; Powell v. Weeks, Noy, 108; Godol. Ab. 505 ; Tebbs on Adultery & Dir. 213. And see Potior v. Barclay, 15 Ala. 439 ; Gee v. Thompson, 11 La. An. 657. * Smoot V. Lecatt, 1 Stew. 590 ; Rochon v. Lecatt, 2 Stew. 429 ; Clark v. Clark, 6 Watts & S. 85. s Kriger ». Day, 2 Pick. 316 ; and see Pago ». Estes, 19 Pick. 269. [574] CHAP. XLI.] FLOWING BY LAW. ' § 782 remains, after this divorce, as before.^ And he may release a chose in action, as a legacy, due to her.^ But he cannot release her judgment for costs against himself in the divorce suit ; because, since the law gives her the authority to act adversely to him, in this suit, it carries with the authority all the necessary consequences.^ Neither, it appears, can he release her costs against a third person, where she has the right to sue sole in a matter which concerns her individually. Thus where a wife, divorced a mensd et thoro, had proceeded in the spiritual court against a woman for adultery with her husband, and there obtained a decree for costs against this woman ; which costs he had released, but the spiritual court refused to acknowledge the release, and the adulteress ap- plied to the common-law court for prohibition ; Lord Chief Justice Holt stated the law, with its reasons, as follows : " If a, feme covert sue sole in the Ecclesiastical Court for defama- tion, as she may if she cohabit with her husband, he may release the costs ; but if they are divorced a mensd et thoro, there, in such case, or of incontinency, &c., he cannot release the costs ; and the reason is, that, if they are divorced a mensd et thoro, the husband allows his wife alimony, and the costs of the suit are out of the alimony ; and therefore he cannot discharge the one more than the other. . . . Yet if the suit be there for a legacy devised to the wife, which is originally due to the baron and feme, and is not part of the alimony, he may release the suit, and also the costs ; because he may discharge the principal. My opinion is, there should be a prohibition in this case. But here you say alimony is sentenced to Hewson's wife ; prove that, and then it is in our discretion not to grant a prohibition." * In another case, where the husband had released the costs of his wife, and the spiritual court had declined to give effect to the release, prohibition was refused, Houghton, J., observing : " The 1 Ames V. Chew, 5 Met. 520; Deans. Eichmond, 5 Pick. 461. ^ Stephens v. Totty, 1 Cro. Eliz. 908. ' Stevens v. Stevens, 1 Met. 279. * Chamberlaine v. Eewson, 5 Mod. 70. [575] § 733 CONSEQUENCES OF DIVOBCE. [BOOK VII. matter in question is for slandering the wife, and this is per- sonal to the wife, and the determination of this is left unto them there." ^ § 733 [683]. The husband's right to the wife's choses in action, after a divorce from bed and board, is recognized, in the absolute sense, only at law ; in equity it is considerably restricted. In the first place, she has here her general equi- table claim to a provision out of them. But in the next place, equity may, it sometimes does, interfere in her behalf by injunction. Thus in an early case the husband, after a di- vorce from bed and board, was restrained from selling a term belonging to his wife.^ And where, after such a divorce on account of the husband's cruelty, a legacy fell due to the wife, the Supreme Court of New York enjoined him from receiving any part of it ; intimating, however, that the re- ception of the whole by her might furnish ground for the reduction or discontinuance of her alimony. And Barculo, J., observed : " The rule of the court of equity in such cases follows that of natural justice ; the husband, by his violation of the marriage contract, forfeits all equitable right to the wife's property. Even when the property has belonged to her before the separation, and has not been reduced into actual possession by the husband, courts of equity will re- store it to the wife. Much more, in a case like the present, where the property falls to the wife after the separation, should the equitable power of the court be interposed to pre- vent the husband from receiving it, by virtue of that relation which he himself has disregarded and violated. It would be difficult to conceive a more plain and palpable outrage upon justice, than to permit this old lady to be deprived of her whole share of her father's estate, by an exercise of his marital rights on the part of a husband whose cruelty has driven her from an honorable home, and occasioned a per- 1 Motteram v. Motteram, 3 Bulst. 264 ; and see Gibs. Cod. 445. 2 Anonymous, 9 Mod. 43, 44 ; 2 Bright Husb. & Wife, 363. [576] CHAP. XLI.] FLOWING BY LAW. § 785 manent suspension of the marriage contract. The authorities are full on this subject." ^ § 734 [684]. In the case last mentioned, the legacy fell to the wife after the separation, and there were no intervening rights of third persons. But where, in England, a wife ob- tained, subsequently to the bankruptcy of her husband, a divorce from bed and board on the ground of his adultery and cruelty, the court held, that this did not entitle her in equity to the whole of a fund bequeathed to her, which came into possession after the bankruptcy, although no settlement was made upon her at her marriage, and the husband had then received 1,500/. stock in her right. The Vice-Chancellor said, " he was of opinion, that, if the separation and divorce from the husband could, in any case, give a special equity in the wife, it would not affect this case ; because the whole proceeding was subsequent to the bankruptcy, and conse- quently after the right to the legacy had vested in the as- signee ; but there must be a reference to a master to approve of a proper settlement upon the wife." ^ § 735 [686]. In some of the United States, the common law doctrine concerning the wife's choses in action, on a divorce from bed and board, has given place to statutory provisions. It was so in Massachusetts, by Stat. 1828, c. 52, § 2, which has been superseded by a more general provision in the Revised Statutes.^ The earlier statute directed, that, upon such divorce decreed at the prayer of the wife, her choses in action, not reduced by the husband to possession, should remain her property ; and it was held, that an assign- ment of them by the husband for a valuable consideration, before divorce granted, is not a reduction to possession. Though assigned, she can hold them as against the assignee, ' Holmes V. Holmes, 4 Barb. 295, referring to Vandnzer v. Vanduzer, 6 Paige, 366 ; Fry v. Fry, 7 Paige, 461 ; Eenwick v. Renwick, 10 Paige, 420. ^ Green v. Otte, 1 Sim. & S. 250, 252. See ante, § 715, and Browning v. Head- ley, there cited ; Davis v. Newton, 6 Met. 537. ' K. S. c. 76, § 28 ; re-enacted Gen. Stats, c. 107, ^ 40. VOL. 11. 37 [ 677 ] § 736 CONSEQUENCES OF DIVORCE. [BOOK Vn. who can stand only in the place of the husband, with no other rights than his, which rights the divorce had termi- nated.^ § 736 [686]. Whether the wif?, after a divorce from bed and board, may sue and be sued at law, is a question of some difficulty and doubt. In England, coverture is never an impediment to a suit in the Ecclesiastical Courts ; mar- ried women being there plaintiffs and defendants, without even the intervention of a next friend. But the rule, it is well known, is otherwise in the courts of law ; and in them, notwithstanding a divorce from bed and board, the English common-law doctrine at the present day does not hold the wife liable to be sued.^ The converse of this is probably not decided ; still, little room for doubt can exist, that the same tribunals would hold the wife, who had obtained a divorce from bed and board, incapable of maintaining an action. The ecclesiastical decree, however, for this kind of divorce, does not also give to the wife the custody of children ; neither does it restore to her any portion of her former es- tates ; neither does it give her again the title in her choses in action ; while, in the United States generally, these and other like things are done under statutes, which seem, therefore, to place her in a condition approximating more nearly to that of a feme sole than she sustained in the English Law. And Parker, C. J., observed in a Massachusetts case : " Where the law itself has separated them, and established separate interests and separate property, it acknowledges no such absurdity as to continue the power of the husband over every- thing but the person of the wife." ^ And this matter, in some of the States, as Louisiana,* is regulated by statutory pro- visions which expressly qualify the wife to sue and be sued. So at present in England, Stat. 20 & 21 Vict. c. ,85, § 25, 26, 1 Page V. Bstes, 19 Pick. 269. And see ante, § 715 and note, where it appears that the authorities on this subject are not harmonious. "■ Lewis V. Lee, 3 B. & C. 291 ; Ellah v. Leigh, 5 T. R. 679. " Dean v. Richmond, 5 Picli. 461, 466. * Bonneau v. Poydras, 2 Rob. La. 1. [578] CHAP. XLI.] FLOWING BY LAW. § 737 has altered the common-law doctrine ; giving the wife, in such circumstances, somewhat the rights of a feme sole, with capacfty to sue and be sued. § 737 [687]. There are circumstances wherein, of neces- sity, the wife must sue ; as, when she would enforce payment of her alimony.^ But aside from this particular necessity, the Massachusetts doctrine is plain, that the divorce from bed and board qualifies her generally both to sue and be sued. " After such divorce," observes Shaw, C. J., " the law of this Commonwealth recognizes her right to acquire and hold property, to take her own earnings to her own use, for the support and maintenance of herself and children. She is de- prived of the protection, and exempted from the control, of her husband. She may, by the decree of the court granting the divorce, and pursuant to the provisions of the statute law of the Commonwealth, be charged with the custody, and con- sequently with the support and maintenance, of the children of the marriage. The reason, therefore, why a wife cannot sue or be sued without joining and being joined with her husband, does not exist. But the relation in which the di- vorce a mensd et thoro places the parties opposes such a join- der. If it were necessary to join the husband as plaintiff, he might release her rights, by which she would be subjected to costs ; if he might be joined as defendant, he might be made subject to her debts ; both of which consequences are repug- nant to the new relation of divided and separate interests, in which the law, by such a decree, places them. Whilst the law thus recognizes the right of a woman, so divorced, to ac- quire and take the proceeds of her industry to her own use, it recognizes her power to make contracts ; and, if she could not sue or be sued, it would present the anomalous case, in which the law recognizes a right without affording a remedy for vindicating it, and subjects a party to a duty without 1 Wheeler u. Wheeler, 2 Dane Ab. 310 ; Lefevre v. Murdock, Wright, 205 ; Howard v. Howard, 15 Mass. 196 ; Clark v. Clark, 6 Watts & S. 85 ; post, k 738. [579] § 739 CONSEQUENCES OF DIVORCE. [BOOK VH. ft lending its aid to enforce it." ^ In the other States generally the question is not well settled ; for, while there are cases ap- pearing to favor the Massachusetts doctrine,^ the opposite scale is not without its weight of apparent authority.^ § 738 [688] . In South Carolina, the court, having no power to grant divorces, decreed alimony to a wife on her bill pray- ing for alimony only,* and ordered the husband to give se- curity for its payment. He refused ; an attachment issued against him. The sheriff, having taken him into custody, suffered him to escape ; and it was held, that the wife might maintain, by her next friend, an action at law against the sheriff for this escape. Said the court, by Smith, J. : " It was urged in the argument, that this woman, being a feme covert, could not maintain the action by her next friend. If that argument were to prevail, there would be a failure of justice, which our law abhors ; as there would be no means of enforcing a decree of a wife against her husband for ali- mony. The court of equity could order a refractory husband to be attached, and the sheriff woiild let him go if he thought proper; then, if the wife could not sue by her next friend, who could ? The law provides no other course. And upon this occasion I would adopt the course of a very learned judge, — ' If there is no precedent, I will make one.' " ^ § 739 [689]. The general law of husband and wife en- titles the former, as of right, to administer on the effects of the latter, after her decease.® Tliis right is not taken away 1 Pierce v. Burnham, 4 Met. 303, 305 ; Dean v. Richmond, 5 Pick. 461. 2 Lefevre v. Murdock, Wright, 205 ; Taylor v. Simpson, 5 J. J. Marshall, 689 ; post, § 738. And see Benadum v. Pratt, 1 Ohio State, 403. ' Burr V. Burr, 10 Paige, 166 ; Clark v. Clark, 6 Watts & S. 85 ; Barber ». Bar- ber, 1 Chand. 280. * Ante, § 353 - 363. "• Prather v. Clarke, 1 Tread. 453. ' Humphrey v. BuUen, 1 Atk. 458 ; Sands's case, 3 Salk. 22 ; McCosker o. Golden, 1 Bradf. 64 ; Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166 ; Browning v. Keane, 2 Phillim. 69, 1 Eng. Ec. 190; Steadman v. Powell, 1 Add. Ec. 58, 74, 2 Eng. Ec. 26, 34 ; Wilkinson v. Gordon, 2 Add. Ec. 152, 2 Eng. Ec. 257 ; I Wil- liams on Ex. 242 ; Toller on Ex. 83. [580] CHAP. XLI.] FLOWING BY LAW. § 741 by the divorce a mensd et thoro ; and the husband may claim it, though his guilt led to the divorce.^ But the wife has not the same absolute right of administration, on the decease of her husband ; ^ and it is a proper exercise of the discretion of the court to refuse her, in favor of his son, if a divorce for her adultery has been pronounced.^ § 740 [690]. The law presumes married persons, separated from bed and board, by sentence of court, to live in the due observance of the sentence ; and, if children are born of the wife during the separation, they are primd facie illegitimate ; though it is otherwise where the parties are living apart by consent.* § 741 [691]. There is hardly need to say, what is suffi- ciently obvious, that this divorce does not deprive the wife of any estate or property rights she may hold independently of her husband, or adversely to him. And if there is a valid deed of separation, in which he covenants to pay a third per- son an annuity for her use, his covenants will bind him, as well after this divorce as before.^ It appears, however, that there are cases wherein, without reference to the question of a divorce, " the husband would be entitled," in the language of Wilde, J., " to come into a court of equity to restrain the trustees of his wife from proceeding at law for her separate maintenance, or where the court would refuse her relief on a bill to enforce a trust therefor. But to justify the court thus 1 Clark V. Clark, 6 Watts &, S. 85. " Sands's case, supra; Dew v. Clark, 1 Hag. Ec. 311 ; Conyers v. Kitson, 3 Hag. Ec. 556, 5 Eng. Ec. 202 ; In the goods of Williams, 3 Hag. Ec. 217, 5 Eng. Ec. 82 ; Spratt v. Harris, 4 Hag. Ec. 405 ; Stretch v. Pynn, 1 Lee, 30, 5 Eng. Ec. 296 ; Atkinson v. Barnard, 2 Phillim. 316, 1 Eng. Ec. 271 ; Webb v. Needham, 1 Add. Ec. 494, 2 Eng. Ec. 189. ' In the goods of Davies, 2 Cnrt. Ec. 628, 7 Eng. Ec. 233. * St. George v. St. Margaret, 1 Salk. 123; Van Aernam v. Van Aernam, 1 Barb. Ch. 375. <• Jee V. Thurlow, 2 B. & C. 547, 4 D. & E. U ; Dr. Lushington, in Good v. Good, 1 Curt. Ec. 755, 763, 6 Eng. Ec. 452, 456. And see Brown v. Brown, 2 Md. Ch. 316. [581] § 741 CONSEQXJENCES OF DIVORCE. [BOOK Vn. to interfere, the misconduct of the wife must be clearly proved ; such, as that she had been guilty of adultery or criminal conversation, or had left her husband without any cause whatever." ^ 1 Ayer v. Ayer, 16 Pick. 327, 332 ; Moore v. Moore, 1 Atk. 272 ; Lee v. Lee, 1 Dick. 321, 2 Dick. 806. See ante, § 719 ; Cartwright v. Cartwright, 19 Eng. L. & £q. 46. [682] CHAPTER XLII. THE SENTENCE AND ITS EFFECT AND STABILITY. Sect. 742. Introduction. 743 - 747. The Rendition of the Sentence. 748 - 753. Its Stability and Effect as between the Parties. 754 -767. The Same as respects third Persons. § 742. In the present chapter, the following matters will be considered : I. The Rendition of the Sentence ; II. Its Sta- bility and Effect as between the Parties; III. The Same as respects third Persons. I. The Rendition of the Sentence. § 743. In England it is provided by Stat. 23 & 24 Vict. c. 144, § 7, that " every decree for a divorce shall in the first instance be a decree nisi, not to be made absolute till after the expiration of such time, not less than three months from the pronouncing thereof, as the court shall by general or special order from time to time direct ; and during that pe- riod any person shall be at liberty, in such manner as the court shall by general or special order in that belialf from time to time direct, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion, or by reason of material facts not brought before the court ; and, on cause being shown, the court shall deal with the case by making the decree absolute, or by re- versing the decree nisi, or by requiring further inquiry, or [583] § T45 CONSEQUENCES OF DIVORCE. [BOOK VH. otherwise, as justice may require."^ Tliere is not, in our States generally, any proTisiou corresponding to this recent English one. § 744. But it is a general principle of procedure pervading our law, that, at any time during the term of the court at which a judgment is rendered, it may be recalled or modified as the judges may direct.^ This practice may be made avail- able in a divorce suit, without resorting to other principles which will be discussed in subsequent parts of the present chapter. § 745. The books do not give us any very exact statements as to what the decree or sentence of divorce must contain. In the facts of the cases, it is often found, especially where the proceeding is in equity, to embrace matter which plainly need not be in it. And even Chancellor Walworth once made use of the following language : " There must be a de- cree in this case dissolving the marriage contract, and the usual clause must be inserted in every case of this kind, pro- hibiting the defendant from marrying during the lifetime of the complainant. Although the defendant would be punish- able for felony if he married again, yet this clause is neces- sary in order to prevent him from imposing upon others, who might suppose he was capable of contracting matrimony if the decree was general." ^ Now, it is quite aside from the proper function of a legal judgment to notify third parties of what all persons are presumed to know, namely, the contents of the statute-book of the State. There can be no pretence, 1 The remaining part of this section provides for the intervention of the Queen's proctor, as see ante, § 32. As to the practice under this provision for the decree nisi, see Boulton v. Boulton, 2 Swab. & T. 405 ; Stoate v. Stoate, 2 Swab. & T. 384 ; Lewis v. Lewis, 2 Swab. & T. 394. 2 McRaven v. McGuier, 9 Sm. & M. 34 ; Neale v. Caldwell, 3 Stew. 134 ; Acra r. Ross, 3 Stew. 288. See further, on this general matter, Brookfield v. Morse, 7 Halst. 331 ; Taylor v. Starr, 2 Boot, 293 ; Patton v. Massey, 2 Hill, S. C. 475 ; Wilkerson v. Goldthwaite, 1 Stew. &, P. 159 ; Hickman v. Barnes, 1 Misso. 156. ' Graves v. Graves, 2 Paige, 62. [584] CHAP. XLII.] THE SENTENCE. § 748 and there was none put forward in this case, that the clause spoken of is of any legal validity, or in any way essential to the complete efficacy of the judgment as to the main matter. And it cannot be doubted that most judges at the present time would discountenance the insertion of such a clause in a decree or sentence for a divorce. § 746 We saw, in the last chapter, what are the legal con- sequences of a divorce ; and, on sound principle, the sentence need not set out those consequences. But there may be stat- utory provisions, drawn in such terms as to leave it doubtful whether what is provided for follows, as of course, upon this sentence, or whether it should not be mentioned in the sen- tence. In such a case, the decree may very well, until the point has been settled by judicial interpretation, include the doubtful matter ; for caution, in legal proceedings, is as com- mendable as it always is in all other proceedings. § 747. There are some other points connected with the decree ; but the decisions relating to them are few, and it is deemed best therefore not to discuss them particularly here. The general doctrines which govern in the like matters, in other causes than divorce, will be found ordinarily sufficient to guide practitioners and courts with respect both to these points and to many other things which might with propriety be discussed in this chapter. The remaining part of this chapter will be devoted to a reproduction, in substance, of the matter which constituted the chapter in the earlier editions, without those extensive additions which a general search through analogous departments of the law has put it into the power of the author to make, and which he at one time con- templated. II. Stability and Effect of the Sentence as between the Parties. § 748 [694]. In another part of the present volume, some allusion has been made to the question of granting a rehear- [585] § 748 CONSEQUENCES OF DIVOECE. [BOOK VU. ing in the divorce cause, on a motion for a new trial, or the like.^ But aside from the doctrines there disclosed, we may observe, that, according to what appears to have been the doctrine of the English ecclesiastical tribunals, in regard to their own adjudications, a sentence against the validity of a marriage was never final ; but was ever open to revision and reversal.^ This doctrine is expressed in terms sufficiently broad to embrace suits for nullity, whether proceeding on the allegation that the marriage was originally void, or only that it was voidable. In the Duchess of Kingston's case, it was stated by Dr. Calvert, of counsel for the defendant, in words substantially concurred in on all sides, thus : " There can be no determination against a marriage, but what is open to fu- ture litigation. We all know, that in a question of marriage any person that has an interest may intervene before sentence given ; and any persons having an interest, though they have neglected to intervene in that cause, might appeal within the proper time ; nay, I will go so far as to say, that, if any per- son having an interest, should have so far neglected it as to omit availing himself of an intervention or appeal, yet he might still come before the court, show his interest, and be heard. A marriage cause goes further still ; for I believe in most other cases a determination would be forever binding, at least to the parties ; but in these questions I conceive it is not ; for, if there was to be a question between a husband and wife in a cause of jactitation, and, as in this cause, it was determined that there was no marriage ; yet the party against whom that sentence was obtained, I apprehend, might appear afterwards, he might produce any new proof that he did not know of at the time, or, even if he had not produced what proof he had, he might be heard upon it. The reason of that indulgence I take to be this: by the canon law a marriage was held to be indissoluble, and for 1 Ante, § 258 - 260. 2 Poynter Mar. & Div. 157 ; Shelford Mar. & Div. 474 ; 2 Burn Ec. Law, 485 ; Onghton, tit. 306. And see Robins v. Crutchley, 2 Wils. 118, 122, 127 ; Bowzer «. Ricketts, 1 Hag. Con. 213, 214 ; Morris B. Webber, 2 Leon. 169; Meadows o. The Duchess of Kingston, Arab. 756 ; Barrs v. Jackson, 1 Y. & Col. C. C. 585, 598. [586] CHAP. XLU.] THE SENTENCE. § 749 that reason a sentence against it never could be final ; senten- iia contra matrimonium nunquam transibit in rem judicatam. The canon law, it is well known, has been received in this country with respect to marriage, particularly as to that po- sition of its being indissoluble. In most other questions, as of property, a person might be bound by time, bound by not making so good a case as he should have done ; but, as a person cannot release himself from the obligations of mar- riage by any lapse of time, or any neglect in stating his case, the question is ever open." ^ We have already had occasion to consider one illustration of this doctrine, in respect to im- potence ; where it is held, that, if parties are divorced for impotence, and the alleged impotent person marries again, and has children, the spiritual court may annul the sentence of divorce, even after the second marriage ; thus reviving the first marriage, and rendering the second, which was originally good, a nullity.^ § 749 [695] . While the principle stated in the last section is clearly supported by the Roman canonical authorities ; and is assumed by all the text-writers, and by some judges, to be law in the ecclesiastical tribunals ; yet it by no means follows that it is so in the latter, because it is found in the former.* Neither has it been often, if at all, practically acted upon in modern times ; nor is it apparent that it has received other direct judicial confirmation. And from the English tribu- nals have fallen observations which might lead us to doubt, whether, upon a proper occasion, that principle would not be discarded in them, or greatly modified. Thus Sir John Ni- choll, speaking of nullity of marriage by reason of impotence, said : " By the canon law, the marriage is not absolutely dissolved ; the parties are separated ; and, if the church is deceived, the former marriage is to be renewed ; and, if a sec- 1 Duchess of Kingston's case, 20 Howell St. Tr. 355, 420, which pages compare with p. 406, 442, 443, 450, 451, 506, 507, 530. ^ Vol. I. § U3 and note; Morris v. Webber, 2 Leon. 169. « Vol. I. § 52 - 55. [587] § 750 CONSEQUENCES OF DIVORCE. [BOOK VIL end marriage is contracted, it becomes null and void. "What a state to place the parties in ! This is something in the text- law which I cannot readily assent to belong to the law of this country." ^ And in a more recent case, — where, indeed, the question was not directly involved, there being an effort made, in a suit concerning the administration of the effects of the deceased, to get rid of an unreversed sentence of nul- lity, — occur some observations of Sir Herbert Jenner Fust, quite indicative of the opinion, that a sentence of nullity regularly pronounced, cannot, even on direct proceedings, be set aside, except for fraud o-r collusion. " According to your argument," he observed to counsel, " every child, and every child's child may bring a suit to have the sentence reversed ; they will equally be strangers; I do not see where it is to stop." 2 § 750 [696]. There being no power in the Ecclesiastical Courts to dissolve a marriage originally valid, this doctrine, that a sentence against a marriage is ever open to revision and reversal, assuming it to have been law in those courts, might not apply to the divorce for offences committed during the coverture. Indeed, we have seen,^ that, where it prevails, it rests upon the indissoluble nature of marriage. Whether therefore it can be extended to supervening causes of divorce, or even whether it is applicable to suits for nullity in our tribunals, where no such notion of indissolubility exists, may well be doubted. The precise question has not received ju- dicial elucidation in this country ; but it may be of conse- quence to notice, that there is no reported American decision in which this doctrine is recognized, or even claimed to be law ; and there are cases in which it may, perhaps, be con- sidered to have been indirectly discarded.* Some obvious reasons exist, why judgments apparently final, rendered in matrimonial causes, whether of nullity or divorce, should be 1 Norton v. Seton, 3 Phillim. 147, 1 Eng. Ec. 384, 387 ; Vol. I. § 113. 2 Meddowcroft v. Huguenin, 3 Cart. Ec. 403, 7 Eng. Ec. 438. » Ante, § 748. * See post, § 751. [588] CHAP. XLII.] THE SENTENCE. § 751 even more stable, certainly not less, than the like adjudica- tions in other matters. The matrimonial status of the parties draws with and after it so many collateral rights and interests of third persons, that uncertainty and fluctuation in it must be greatly detrimental to the public interests. Therefore in some of the States, there are legislative enactments which are intended to give peculiar inviolability to such judgments.^ § 751 [697]. As a general proposition, the American tri- bunals, when unencumbered by specific statutory directions, have been governed by substantially the same principles in divorce causes, as in others, in respect to opening decrees, or granting rehearings, writs of error, or certiorari; or otherwise, according to the practice of the court, re-examining the ques- tion ; except that there has always been a manifest reluctance to disturb a final judgment of divorce, especially after a sec- ond marriage, involving the interests of third persons.^ And in New York, a husband having obtained a decree dissolving his marriage, on default of the wife, upon whom process was irregularly but personally served in New Jersey ; and having, shortly afterward, married another woman, who was ignorant of the irregularity, — the divorced wife was indeed permitted to come in and contest the suit ; but, for the protection of the other woman, the Chancellor ordered, that the original decree remain in full force until the result of the litigation should be I'eached. And he observed : " The defendant does not state ^ In Kentucky, the Court of Appeals has no power to reverse a decree granting a divorce. Maguire v. Maguire, 7 Dana, 181 ; Thornberry ». Thornberry, 4 Litt. 251 ; Boggess v. Boggess, 4 Dana, 307. And see Watkinson v. Watkinson, 12 B. Monr, 210, where, the lower court having dismissed the plaintiff's bill, and divorced the defendant on her cross-bill, the Court of Appeals reversed the former decree, and gave a divorce to the plaintiff. 2 Olin V. Hungerford, 10 Ohio, 268; Piatt v. Piatt, 9 Ohio, 37 ; Laughery u. Langhery, 15 Ohio, 404; Johnson u. Johnson, Walk. Mich. 309; Smith ». Smith, 4 Paige, 432; Colvin o. Colvin, 2 Paige, 385; Dunn o. Dunn, 4 Paige, 425; Bourne v. Simpson, 9 B. Monr. 454 ; Jeans c. Jeans, 3 Harring. Del. 136 ; Bog- gess V. Boggess, 4 Dana, 307 ; Evans v. Evans, 5 B. Monr. 278 ; Lucas v. Lucas, 3 Gray, 136 ; Sheafe ». Sheafe, 9 Fost. N. H. 269 ; Smith v. Smith, 20 Misso. 166 ; Hoffman v. Hoffman, 6 Casey, 417 ; Mansfield v. Mansfield, 26 Misso. 163; Tap- pan c. Tappan, 6 Ohio State, 64. [589] § 752 CONSEQUENCES OF DIVORCE. [BOOK VII. when she received notice that the divorce had been actually obtained. The complainant swears, that he showed it to her under the seal of the court on the sixteenth of October, and before the second marriage ; and it appears that she took no steps to set aside the proceedings for nearly a month after- wards. This delay was probably not sufficient to make it the duty of the court to bar her of her rights, if she has any, by leaving the decree to stand as conclusive against her. But in the mean time the second marriage has rights." The de- fence alleged was, that the husband had forgiven the adul- tery for which he brought his suit.^ It has been made a query in New York, whether, after a decree dissolving the marriage has been rendered, the defendant can come in by a cross-bill in the nature of a bill of review, and show, that, pending the suit, the complainant was guilty of adultery, the fact not having been discovered until after the final adjudica- tion.^ If a party has used the privileges of a decree of di- vorce, he has thereby affirmed it, and he is too late to complain of any of its burdens.^ § 752 [698]. After a decree dissolving the marriage, on the ground of the wife's alleged adultery, had been regularly pro- nounced and enrolled, the husband made oath that he had subsequently become convinced of her innocence ; and the two joined in the prayer, that the enrolment might be opened and vacated, and the decree reversed. This request was granted, and the suit dismissed ; but without prejudice to in- tervening rights of third persons. They further prayed, that the bill and all the papers should be taken from the files and destroyed. This the court refused to grant, because of inter- vening rights ; but said, " to prevent any one who has no in- terest in the question from disturbing the peace of this family, the register is directed to seal up the pleadings and proceed- ings, together with the master's report, and not to suffer them 1 Dunn V. Dunn, 4 Paige, 425. ^ gmith v. Smith, 4 Paige, 432. " Bourne v. Simpson, 9 B. Monr. 454. And see Gaines v. Gaines, 9 B. Monr. 295; Vol. I. § 691. [590] CHAP. XLII.] THE SENTENCE. § 753 to be copied or inspected, except by the special permission of the court." The Chancellor considered, that, assuming the husband to be mistaken in thinking his wife innocent, still the law favors condonation.^ § 753 [699]. If a tribunal has been imposed upon, the fraud ^ being of such a nature as to make the judgment of divorce void,^ it may vacate this judgment, when, upon a summary proceeding, it is made cognizant of the fraud. So the Pennsylvania court, in a recent case, decided upon the strength of the English authorities ; and further, that the order vacating the decree of divorce was, after the time for an ap- peal had elapsed, conclusive ; although a second marriage had been in good faith entered into, and although the vacat- ing order was passed without actual notice to the party in the divorce suit against whom it operated. The authority principally relied upon t9 sustain this decision was the case of Prudham v. Phillips.* " The principle," observed Gibson, C. J., " is a general one, and applicable alike to ecclesiastical sentences and common-law judgments. It has no relation to the doctrine of amendments, which make the record speak a language it did not speak before ; the vacation is a new and independent judgment, of which the recorded entry is its appropriate evidence It may be an arbitrary act to expunge a sentence of divorce with a stroke of the pen, bastardize after-begotten children, involve an innocent third person in legal guilt, and destroy rights acquired in reliance on a judicial act which was operative at the time ; and un- der this first impression I would have decided as did the judge at nisi prius. But the legitimate husband has his rights ; and, if any one must suffer from the invalid marriage, it is he who procured it. By the terms of the contract he took the lady for better, for worse ; and having assumed at 1 Colvin V. Colvin, 2 Paige, 385. " Post, k 757, 760-763. ' See Greene v. Greene, 2 Gray, 361, 4 Am. Law Register, 42, and an article 4 Am. Law Eegister, 1. * Prudliam v. Phillips, cited Arab. 763, 1 Harg. Law Tracts, 456, note. And see post, 5 761. [591 J § 754 CONSEQUENCES OF DIVORCE. [BOOK VH. least her moral responsibilities, he stands as to hardship in her place. He, therefore, has no right to complain." ^ The doctrine of this section has doubtless its limits and qualifica- tions ; but it has been so little developed by adjudication, that we cannot safely attempt to state what they are. III. Stability and Effect of the Decree as respects third Persons. § 754 [700] . Whatever be the authority of the court which pronounces a sentence of divorce or of nullity, to revise or reverse it on a proceeding instituted for the purpose, still, while it remains a sentence, it is, if free from fraud and collu- sion, binding upon that tribunal in all collateral proceedings ; and upon all other tribunals, in all proceedings direct and col- lateral, whetlier between the same parties and their privies, or between strangers ; not only in the country where the sen- tence was rendered, but, the jurisdiction being- admitted, in all foreign countries. A sentence, to have this effect, must of course be a direct adjudication upon the specific fact of the marriage, or its dissolution ; and a finding wliich might be inferred argumentatively, would be attended with no such consequence.^ Moreover, in the case of a foreign divorce, 'I Allen ». Maclellan, 2 Jones, Pa. 328. 2 Roach V. Garvan, 1 Yes. sen. 157, 159; Hillyard v. Grantham, cited 2 Ves. sen. 246 ; Meadows v. The Duchess of Kingston, Arab. 756 ; Prudham v. Phillips, cited lb. 763, Harg. Law Tracts, 456 ; 2 Burn Ec. Law, 495 ; Kex v. Roche, 1 Leach, 4th ed. 134 ; Meddowcroft v. Hugueiiin, 3 Curt. Ec. 403, 7 Eng. Ec. 438 ; s. c. on appeal before the Privy Council, 4 Knapp, 386 ; Bunting v. Lepingwel, 4 Co. 29, Sir F. Moore, 169; Blackham's case, 1 Salk. 290; Guest v. Shipley, 2 Hag. Con. 321, 4 Eng. Ec. 548, 549 ; Clews v. Bathurst, 2 Stra. 960 ; Dacosta v. Villa Real, 2 Stra. 961 ; Kenn's case, 7 Co. 42; Jones v. Bow, Carth. 225; Hat- field ». Hatfield, stated 20 Howell St. Tr. 395 ; Morris v. Webber, 2 Leon. 169, Sir F. Moore, 225; Dickson v. Dickson, 1 Yerg. 110, 114; Dorsey v. Dorsey, 7 Watts, 349; Legg v. Legg, 8 Mass. 99; Clarke v. Lott, 11 111. 105; Hake v. Fink, 9 Watts, 336 ; 1 Brown's Civil Law, 96 ; Story Confl. Laws, § 594 - 597 ; 1 Greenl. Ev. 544, 545 ; 2 lb. 5 461 ; Jenk. Cent. 44 ; Harg. Law Tracts, 449 ; Mansfield v. Mclntyre, 10 Ohio, 27 ; Cooper v. Cooper, 7 Ohio, 238 ; Ryan v. Ryan, 2 Phillim. 332, 1 Eng. Ec. 274 ; Conway v. Beazley, 3 Hag. Ec. 639, 5 [592] CHAP. XLII.J THE SENTENCE. § 766 it is quite immaterial whether or not it be for a cause al- lowed by the domestic law.^ So, if parties are domiciled in an Indian country, where the husband abandons his wife ; and by the Indian law the abandonment works of itself, without further proceedings, a dissolution of the marriage, it will be treated in the courts of a Christian . state as a divorce.^ § 765 [701]. It is perceived, that the rule thus stated ac- cords to the sentence an effect beyond what is given to or- dinary judgments in personam ; and places it rather upon the footing of judgments in rem. Substantially such, in fact, is tiie sentence ; or, to speak more accurately, it is an adjudica- tion about a matter of matrimonial status, which of necessity binds the world, like the act of parties by which this status is originally assumed. Thus, if two individuals enter into an ordinary contract in personam, none but themselves and their privies are bound by it ; but if into a valid marriage, whereby a change in their status is wrought, third persons who have not been consulted must yield to the consequences. If, for example, a stranger to the marriage has a suit pending against the woman, it abates ; the property to which he was looking for his pay is transferred to the husband, who may be a bankrupt ; one having a judicial controversy with the husband, and relying upon tlie testimony of the woman, loses the evidence ; and so of a variety of other consequences. For the same reasons, the like results follow the sentence of di- vorce or nullity. This is the case in respect to whatever rests upon the status itself ; but perhaps there . may be collateral rights and interests, which would depend on a different prin- ciple. Yet here the same general doctrines would seem to Eng. Ec. 242 ; Harding v. Alden, 9 Greenl. 140; Patterson v. Gaines, 6 How. TJ. S. 550, 599; Barber?). Boot, 10 Mass. 260. See query, Scrimshire ». SorimshirB, 2 Hag. Ee. 395, 4 Eng. Ec. 562, 569. And see Sinclair v. Sinclair, 1 Hag. Con. 294, 4 Eng. Ec. 412, 414 ; Goodin v. Smith, Milward, 236, 245. 1 Barber t>. Root, 10 Mass. 260 ; Wall v. Williamson, 8 Ala. 48 ; Hull v. Hull, 2Strob. Eq. 174, 177, 178. 2 Wall V. Williamson, snpra ; Wall v. Williams, 1 1 Ala. 826. VOL II. 38 [ 593 ] § 757 CONSEQUENCES OF DIVOECE. [BOOK VII. be applicable, whether the change of status were effected by the concurrent act of the parties, as it is when they are mar- ried ; or by a decree of the court, as it is when they are divorced. § 756 [702]. It has been, with some show of authority, contended, that the doctrine of the conclusiveness of sen- tences in suits for nullity applies only to the parties to the suit and their privies, including persons, who might have in- tervened, whether they really did so or not ; at the same time, it has been admitted that such persons need not have had any notice of the proceedings, to be bound by them. As, therefore, the right to intervene in matrimonial causes ex- tends, according to the English rule, to all persons who have any possible interest in the result ; ^ the doctrine, even thus limited, would seem practically to cover in substance the whole ground. But it is held, that a child, en ventre sa mere at the time of pronouncing the sentence of nullity, is estopped by it ; ^ and, on the whole, the sentence would appear, both upon principle and authority, to be, when free from fraud, conclusive upon all persons. ^ § 757 [703]. The Duchess of Kingston's case* is some- times referred to as deciding, that the king is not bound, in a criminal proceeding, by a sentence in favor of the defendant in a matrimonial cause ; and sometimes as deciding, that a sentence ia the peculiar suit of jactitation of marriage con- cludes nothing.^ The truth is, that the light shed from this case is very dim and uncertain, quite out of proportion to the vast array of talent and learning, and the multitude of words. 1 Shelford Mar. & Div. 569 ; ante, § 309. ' Perry v. Meddowcroft, 10 Beav. 122. Bat not if procured by fraud. Har- rison ». Southampton, 17 Eng. L. & Bq. 364, 21 Eng. L. & Eq. 343. • For the cases sco ante, § 754. * Duchess of Kingston's case, 20 Howell St. Tr. 355, more briefly reported, 1 Leach, 4th cd. 146, 1 East. P. C. 468. 6 2 Smith Lead. Cas. 446 ; Shelford Mar. & Div. 473, 583. [594] CHAP. XLII.] THE SENTENCE. § 758 which adorned and overwhelmed the proceedings. The facts in brief are, that the lady entered into a private marriage ; cohabited imder it for a time secretly ; had issue, which died ; disagreed with her husband, whereupon they separated ; and after many years she brought against him a suit of jactita- tion of marriage, which he, colluding with her, defended, by setting tip a marriage at a diflferent time and place and under different circumstances from those which attended the real one. The witnesses to prove the marriage which did take place were designedly kept back ; and he, failing of course to establish this feigned marriage, suffered, what both parties concurrently sought, sentence to go against him. The lady then entered into a second matrimonial alliance. After the death of the second husband, she was indicted for polygamy ; and the indictment, on her prayer, and on account of her rank, was tried in parliament. She relied upon the fraudu- lent sentence in the jactitation suit ; but it was held not to be a bar, and she was convicted. A sufficient reason for setting aside the sentence, according at least to modern de- terminations, is, that it was obtained through fraud and col- lusion, which vitiate all judgments ; and it has been well questioned, whether the case should be received as authority for anything beyond this point.^ § 768 [704]. In the discussion of this case, the distinguish- ing consideration, that the sentence in the jactitation suit involved, as all judgments in matrimonial causes do, the question of status, therein differing from most other final determinations in the Ecclesiastical Courts, was by no one distinctly presented. A multitude of other points were elab- orated, but on what ground of law the decision did finally 1 Wadd. Dig. 296, note ; 2 Smith Lead. Cas. 446. Before the officers of the crown undertook the prosecution, they consulted Mr. Hargrave upon the law ; and he gave them an elaborate opinion, in writing, adverse to the crown on all points except that of fraud, which was the only thing, he contended, that could avoid the conclasive effect of the ecclesiastical sentence. The opinion was afterward pub- lished by the learned author of it, in Harg. Law Tracts, p. 449. See also Barrs v. Jackson, 1 Y. & Col. C. C. 585, 590, 593,, 1 Browne Civil Law, 96, note. [595] § 759 CONSEQUENCES OF DIVORCE. [BOOK VII. rest does not appear. In the course of the proceedings, the Lords put to the judges two questions, both of which were answered favorably to the prosecution ; namely, " 1. Whether a sentence of the Spiritual Court against a marriage, in a suit for jactitation of marriage, is conclusive evidence, so as to stop the counsel for the crown from proving the said mar- riage in an indictment for polygamy ? 2. Whether,* admit- ting such sentence to be conclusive upon such indictment, the counsel for the crown may be admitted to avoid the eflfect of such sentence, by proving the same to have been obtained by fraud and collusion ? " ^ For their negative an- swer to the first of the above questions, the judges assigned a variety of reasons, in such a manner as to leave us in doubt whether any one of them, and what one, would have been deemed sufficient of itself. Among the reasons are the fol- lowing : first, that the party prosecutor in the indictment, namely, the king, was not a party to the jactitation suit; secondly, that the receiving of the sentence as conclusive " would tend to give the Spiritual Courts, which are not per- mitted to exercise any judicial cognizance in matters of crime, an immediate influence in trials for offences, and to draw the decision from the course of common law, to which it solely and peculiarly belongs." But, thirdly, if the result be not as thus indicated in respect to a direct sentence, in a matri- monial cause involving the identical question, yet a sentence in a jactitation suit is not a direct determination upon the question of marriage. § 759 [705]. In respect to the last point- taken by the judges, a jactitation suit is, indeed, of a peculiar nature. It seeks a kind of ecclesiastical injunction upon the defendant, against a species of matrimonial defamation. The libel complains, that the defendant has falsely and maliciously boasted of being married to the plaintiff, and prays for a decree of perpetual silence from such boasting'. There are three defences, any one of which may be relied upon ; namely, ^ Duchess of Kingston's case, 20 Hovrell St. Tr. 355, 2 Smith Lead. Cas. 424. [596] CHAP, an.] THE SENTENCE. § 760 first, a denial of the boasting; secondly, a setting up of a fact of marriage ; thirdly, that, though there was really no marriage, the pretence of there having been one was author- ized by the complainant. It is not claimed that a sentence in a cause of jactitation, when either the first or third of these defences has been taken', amounts to a judgment upon the fact of marriage, having the force of a decree of nullity. But it is said, with apparent reason, that, when tlie second defence is made, " the proceeding," in the language of Lord Stowell, " assumes another shape, that of a suit of nullity, and of restitution of conjugal rights, on an inquiry into the fact and validity of such asserted marriage." ^ Yet, where this second defence is made, the sentence against the mar- riage is in form materially different from the sentence ren- dered upon an original suit for nullity. In the latter suit, the adjudication finds that there was a pretended marriage between the parties, but that, for causes set forth, it was and is null and void, and 'that the plaintiff was and is free from all bond of marriage with the defendant.^ But in a jactita- tion cause, the corresponding determination is, not that there was a pretended marriage, which was a nullity, but that none was entered into as far as yet appears? Still, there are cases in which the sentence in such a suit has been received as con- clusive upon the question of marriage.* §760 [706]. But any adjudication, whether in a suit of jactitation, of nullity, or of divorce, in order to have the con- clusive effect described, must have been obtained bond fide, and without fraud or collusion between the parties ; for fraud in these causes, as in all others, vitiates every judgment into which it enters.^ According to a very familiar principle of 1 Hawke e. Corri, 2 Hag. Con. 280, 287, 288; Bodkin y. Case, Milward, 355; Coote Ec. Pract. 357 -360, 1 Browne Civil Law, 96, note; ante, § 290. 2 Coote Ec. Pract. 402, 403 ; ante, § 265. ^ See the sentence which was relied upon in the Duchess of Kingston's case, 20 Howell St. Tr. 355, 390 ; Bodlcin v. Case, Milward, 355, 361. * Clews V. Bathurst, 2 Stra. 960 ; Dacosta v. Villa Real, 2 Stra. 961. ' Story Confl. Laws, § 597 ; Harg. Law Tracts, 479 ; Brownsword «.' Edwards, [597] § 761 CONSEQUKNCES OF DIVORCE. [BOOK \U. law, however, one would not be permitted to set up a fraud to which he was himself privy, in obtaining tlie sentence. And a still broader doctrine has been laid down, — that only strangers to the sentence can make, on a collateral proceed- ing, this averment of fraud ; for, it is said, a party to it might have it reversed, but a stranger could not.^ If, however, the propositions to be stated in the next section are received as correct, it would seem clearly to follow, that a party to the sentence can never, either in a direct or collateral proceeding, set up against it the fraud in its procurement, and that this right exists only in privies and strangers. § 761 [707]. It has been held, that fraud and collusion, to avoid a sentence in a matrimonial cause, must have been practised by and between the parties to that suit. Thus, if the father were promoter in a proceeding to annul the mar- riage a minor son, fraudulent conduct concerning it in the son, to which conduct the father was not privy, would not be admissible to impeach the sentence. And it appears to have been further held by the Privy Council, in Meddowcroft v. Huguenin, that no fraud of one of the parties alone would 2 Ves. sen. 243, 246 ; Hake v. Fink, 9 Watts, 336 ; Conway v. Beazley, 3 Hag. Ec. 639, 5 Eng. Ec. 242, 244, 245 ; Roach v. Garvan, 1 Ves. sen. 157 ; Harg. Law Tracts, 485; 3 Burge Col." & For. Laws, 1060, 1061 ; ante, 5 754 ; Harding v. Alden, 9 Greenl. 140, 151 ; Jackson ». Jackson, 1 Johns. 424 ; 2 Kent Com. 109; Harrison v. Southampton, 17 Eng. L. & Eq. 364, 21 Eng. L. & Eq. 343, as to which see ante, 4 756, note. ^ Prudham v. Phillips, cited Amb. 763, 2 Purn Ec. Law, 495. In this case, according to Mr. Ford's note, as published by Mr. Hargrave, the court, after lay- ing down the doctrine that fraud may be set up in answer to an ecclesiastical sentence of nullity, which has been offered in evidence, proceeded: "But who ever knew a defendant plead, that a judgment obtained against him was fraudu- lent 1 He must apply to the court ; and, if both parties collude in the cheat upon the court, it was never known that either of them could vacate the judgment. Here defendant was party to the sentence ; and, whether she was imposed upon, or she joined in deceiving the court, this is not the time or place for her to redress herself. She may, if she has occasion, appeal, or apply otherwise to the proper judge.'' Harg. Law Tracts, 456, note; Habback on Succession, 269. See Pease K. Naylor, 5 T. R. 80 ; Meddowcroft v. Huguenin, 3 Curt. Ec. 403, 7 Eng. Ec. 438 ; s. c. on Appeal, 4 E. F. Moore, 386 ; Greene v. Greene, 2 Gray, 361, 4 Am. Law Register, 1, 42 ; ante, k 753. [598] GHAP. XLII.] THE SENTENCE. § 762 be sufficient, but that both must have participated in it, — that it must amount to collusion, whereby the parties jointly imposed upon the court. Lord Brougham observed: "The fraudulent suppression of evidence by one party would be insufficient. It is when the two parties combine together that it becomes collusion. In the words of Wedderburn, in the Duchess of Kingston's case:^ 'A sentence obtained by fraud and collusion is no sentence. In order to make a sen- tence, there must be a real interest, a real argument, a real prosecution, a real defence, a real decision. Of all these requisites not one takes place in the case of a fraudulent and collusive suit. There is no judge ; but a person invested with the ensigns of a judicial office is misemployed in listen- ing to a fictitious case proposed to him. There is no party litigating, there is no party defendant, no real interest brought into question ; and, to use the words of a very sensible civilian on this point, fabula, nofi judicium, hoc est ; in scend, non in foro, res agitur.' " ^ § 762 [708]. It may sometimes be difficult to determine whether the facts in a particular case amount to sufficient fraud to avoid the sentence ; or what fraud will have the effect. Upon this subject no very distinct lines have been drawn by the courts. In Conway v. Beazley, where there had been a Scotch divorce, a vinculo, and a second marriage, the second wife brought her suit for nullity on the ground that the Scotch tribunal had no rightful authority to dissolve the vinculum of the first marriage, which she contended was still in force ; and Dr. Lushington, in the course of his opinion, observed : " It has been said, that the divorce at Edinburgh was only pleaded because it was deemed improper to keep the court in ignorance of that circumstance. If a fact of 1 20 Howell St. Tr. 478, 479. ^ Meddowcroft v. Huguenin, 4 E. !F. Moore, 386 ; Perry v. Meddowcroft, 10 Beav. 122 ; ante, § 7.53, and Allen v, Maclellan, there referred to. The order va- cating the decree of divorce, mentioned in the last case, had been entered on application of the defendant, on whose default the divorce was originally granted ; bnt the point stated in the text did not arise in the case, and was not discussed. [599] § T63 CONSEQUENCES OF DIVORCE. [BOOK VU. such magnitude had been suppressed, I am of opinion that any sentence pronounced by the court would have very little availed the parties, — that it would not have been finally binding, but would have been open to re-examination, — that such suppression would, in short, have rendered the proceed- ings liable to impeachment. An endeavor to obtain a sen- tence when any such material information was withheld would be unfair towards the court, and prejudicial to the due administration of justice." ^ And in a New York case it was shown, that, while the husband and wife were living in Connecticut, she petitioned to the legislature of the latter State for a divorce from bed and board on the ground of his cruelty, he appeared and answered to her complaint, and after due hearing her prayer was allowed. Five years afterward he applied to a court in Vermont, where he was residing, for a divorce a vinculo, on the allegation that she had deserted him, suppressing the fact of the proceeding in Connecticut. Service was made on her by publication, but she had no actual notice of his suit, and did not appear. Judgment was rendered in his favor, dissolving the marriage ; but the New York court held, that, as he had imposed upon the tribunal rendering it, by allegations which he knew to be false, and had concealed the real facts, the judgment was void.2 It is not however sufficient to avoid a sentence, that the costs of the unsuccessful party had been agreed to bo paid by the other; that some witnesses were not examined, and others not cross-examined ; and that obstacles were not interposed which might have been,^ § 763 [709]. When parties resort to the courts of a foreign state or country, without a change of domicile, for the pur- pose of obtaining a divorce to which they would not be 1 Coiiway v. Beazley, 3 Hag. 639, 5 Eng. Ec. 242, 244, 245. " Borden v. Fitch, 15 Johns. 121, 145. And see Allen v. Maclellan, 2 Jones, Pa. 328 ; Harrison v. Harrison, 19 Ala. 499 ; Vischer v. Vischer, 12 Barb. 640. * Perry v. Mcddowcroft, 10 Beav. 122; Meddowcroft v. Huguenin, 3 Curt. Ec. 403, 7 Eng. Ec. 438 ; B. c. on Appeal, 4 E. F. Moore, 386. [600] CHAP. XLII.] THE SENTENCE. § 765 entitled by the law of their own country, the divorce, as we have already seen,^ will be treated at home as invalid. The true principle is undoubtedly, that the foreign tribunal had no proper jurisdiction over the subject-matter, being one of status, with which the courts of the parties' domicile are alone competent to deal. Yet this case is sometimes treated of as one of fraud. Thus, persons married in New York cohabited tliere for nearly a year, when the wife, without any change of domicile, went to Vermont for the express and sole purpose of procuring a divorce for a cause not allowed by the laws of her own State. She obtained a decree in her favor, with an allowance of alimony ; and, to recover the ali- mony, she brought her suit in New York. It was held, that she could not prevail, the Vermont divorce being in evasion of the law of her domicile. The court add : " It may be laid down as a general principle, that, whenever an act is done in fraudem legis, it cannot be the basis of a suit in the courts of a country whose laws are attempted to be infringed." ^ § 764 [709 a}. It is always important to consider, between what parties, and in what manner, the question of fraud arises. This matter was somewhat discussed in a late Massa- chusetts case, in which the point adjudicated was, that, if a husband obtains a divorce on false testimony, the wife cannot have the divorce sentence declared a nullity, on a prayer inserted in her libel for divorce against him, filed at a subsequent term.^ The truth is, thei*e are several qiiestions on this subject of fraud in the sentence, not yet settled on authority ; and perhaps it will not be wise to pursue these speculations further here.* § 765 [710]. We have seen, that an adjudication, to have 1 An.te, 5 144-154. " Jackson v. Jackson, 1 Johns. 424; 2 Kent Com. 108. And see Vischer v. Vischer, 12 Barb. 640 ; Lyon v. Lyon, 2 Gray, 367. ' Greene ». Greene, 2 Gray, 361, 4 Am. Law Register, 42. * See an article in which several points are discussed, 4 Am. Law Register, 1 ; 1 Bishop Crim. Law, § 678, 679 ; Harrison v. Harrison, 19 Ala. 499. [601] § 766 CONSEQUENCES OF DIVORCE. [BOOK VII. the conclusive force described, must involve the direct ques- tion of the existence and validity of the matrimonial relation, or of its dissolution.^ We have seen also, that, in every divorce suit, both the fact and legality of the marriage are directly in issue, as the foundation of the proceeding ; and that the sentence of divorce, in form and effect, affirms them.^ It appears therefore clearly to follow, that, after such a sen- tence, these questions can no more be stirred. Thus, if a party is separated from bed and board for his adultery, he cannot afterward be heard on an application to have the marriage declared null and void ab initio, on the score of impotence.^ ^ 766 [711]. If one brings a libel for divorce, which he fails to sustain by proof, and it is dismissed on due contesta- tion, by a final judgment not in the nature of a nonsuit, he cannot afterward maintain a second suit for the same offence. 1 Ante, § 754. ^ Ante, ^ 262. » Guest V. Shipley, 2 Hag. Con. 321, Eng. Eo. 548 ; Vol. I. H'S- This view is evidently sustained on principle, and it was distinctly affirmed by Lord Stowell, in the case cited of Guest o. Shipley. But the doctrine seems not to have been always in the minds of the judges, though I am not aware that it was ever dis- tinctly overruled. Thus, recently, in a suit for nullity promoted by the husband. Sir J. Dodson remarked : " This case is attended with very peculiar circumstances. The marriage took place in 1826. Then a suit was promoted by the wife against the husband for a separation by reason of adultery, in which she obtained a, sen- tence ; the marriage, therefore, which is the foundation of a deci-ee of separation, must in that suit have been established. Then in 1838 there was a suit for nullity of marriage (I Curt. Eo. 870) promoted by the wife against the husband. The husband defended that suit, and successfully, for the marriage was not held to be void and null. The wife then had obtained a sentence of separation, but failed in her suit for annulling the marriage ; and so things remained till the present suit was instituted by the husband. When the present case came before Sir H. Jenner Fust, he took the objection that the jurisdiction was not sufficiently pleaded ; for the libel did not plead that the domicile of the wife was in the diocese of Can- terbury," &c. So the case was disposed of without any intimation that the former proceedings would be a bar. Williams v. Dormer, 16 Jur. 366, 9 Eng. L. & Eq. 598, 2 Robertson, 505. Possibly some aid in this matter may be gathered from recurring to the principles stated Vol. I. ^ 689-692. Some of the facts in the late case of Gaines v. Eelf seem to have furnished scope for a discussion of the doc- trine stated In the text, but the point does not appear at all in the report. Gaines V. Eelf, 12 How. U. S. 472. [602] CHAP. XLII.] THE SENTENCE. § 767 He may, however, proceed for subsequent offences, or for offences which occurred during the pendency of the first suit.^ And where a libel for divorce sets forth various acts of adul- tery, with persons named and persons said to be unknown, and alleges repetition of the crime between a certain day and the time of filing the libel ; the libellant must be pre- sumed to come prepared with every proof proper to be received, bearing on the subject of the complaint. And after a full hearing, followed by a decree of divorce or dismissal, the question must be taken as concluded between the parties ; and a second proceeding cannot be sustained for any acts charged to have been done before the commencement of the first.2 § 767. There is before the writer material from which he might enlarge very considerably the discussions of this chap- ter. But on due consideration it is deemed best to let the matter rest here. 1 Vance ». Vance, 17 Maine, 203 ; Griffin v. Griffin, 8 B. Monr. 120. * Vance v. Vance, supra. [603] FORMS. § 768. It is proposed to give in this connection a collec- tion of forms, a part of which are copied from books, or from the files of courts, and a part of which are written by the author for use here. The origin of the particular form will be stated in each case. § 769. Libel for Nullity of Marriage — General Form. [Original.] To the Honorable Justices of the Court, holden, &c. The Libel of Jacob Robinson, of , in the County of , laborer, ' against Maria Richardson, falsely calling herself Maria R. Robinson, and pretending to be the wife of said Jacob, Respectfully kepresents, That on the tenth day of November, in the year eighteen hundred and fifty-six, your libellant and the said Maria were in form of law, but not in effect, married at , and that they afterward lived together as husband and wife at the said , until, on the fourteenth day of June, now last past, your libellant, discovering said marriage to be null and void, ceased to cohabit with said Maria. And your libellant alleges, that the cause for which said marriage is void, is the following : [here set out the cause.] Wherefore he prays, that, by decree of this honorable court, the said pretended marriage may be pronounced to be, and to have been, at and from the time of its celebration, null and void, and that such further relief may be granted to your libellant in the premises as to right and law may pertain. Jacob Robinson. [ 604 ] FORMS. § 771 § 770. Libel for Divorce — General Form. Cause, Adul- tery. [Original.] To the Honorable Justices of the Court, holden, &c. Thp Libel of Richard Rhodes, of , in the County of , yeoman, against Sarah A. Rhodes, wife of said Richard, Respectfully bepkesents. That the said Richard and the said Sarah were lawfully married to one another, her name being before marriage Sarah A. Franklin, on the fourth day of June, in the year eighteen hundred and forty-one, at -. , in this State, and that your libellant and the said Sarah Uved together as husband and wife in various places in this State after their said marriage until, on the fourteenth day of December now last past, your libellant left the said Sarah on discovering the adulteries hereinafter to be mentioned. And your libellant says, that, on the fifth day of June, in the year eighteen hundred and fifty, the said Sarah, at , in the County of , committed adultery with one William Rochester ; and on the tenth day of May, in the year eighteen hundred and fifty-one, she committed adul- tery with some person whose name is unknown to your libellant, at , in the County of ; and that she has committed various other adulteries which your libellant cannot here particularly specify. Wherefore he prays, that the bond of marriage between him and the said Sarah may be dissolved, and for such further and other relief as to this hon- orable Court may seem just. Richard Rhodes. § 771. Whether the matter of there being children of the marriage, suppose there are such, should be mentioned in the Ubel, and various other points, we have already discussed. In some States, perhaps in most, it is necessary there should be some allegation of the residence of the plaintiff, in the State, during a specified number of years before the bringing of the divorce suit, — a matter, also, already discussed. In Massachusetts, there can be no divorce granted where the par- ties have never lived together in the State, except as follows : " When," according to Gen. Stats., c. 107, § 11, " the libellant has resided in this State five consecutive years next preceding the time of filing of the libel, a divorce may be decreed for any cause allowed by law, whether it occurred in this Common- wealth or elsewhere ; unless it appears that the libellant has removed into this State for the purpose of procuring a di- [605] § 772 FORMS. Torce." Under this statute, when the allegation is not of a marriage and living together in Massachusetts, but in some other State or country, there must ^be an averment of resi- dence by the libellant in the State. The following is supposed to meet the demand : — Averment of Marriage abroad and Residence of the Plaintiff in Massachusetts. [Original.] That on the tenth day of November, in the year eighteen hundred and thirty-six, your libellant, a single woman, whose name was then Julia Ban- dolph, was lawfully married to the respondent, at Hartford, in the State of Connecticut, and that afterward, on the fourth day of June, in the year , your libellant removed into Massachusetts, and from that day to the day of the filing of this libel, being more than five consecutive years next preceding said filing, she has resided and continues to reside in this State. § 772. Libel for Divorce for Adultery. The following two forms are from Oliver's Precedents, and they have been often followed in Massachusetts : — To the Honorable the Justices of the Supreme Judicial Court next to be holden at, &c., within and for the County of, &c., on, &c. A. B. of, &c., wife of C. B. of, &c., respectfully libels and gives this honor- able Court to be informed ; that she was lawfully married to the said C. B., at, Sec.,. on, &c., and has had by him four children who are now living, viz. K. B., L. B., M. B., and N. B. ; that your libellant since their intermarriage has always behaved herself as a faithful, chaste, and affectionate wife towards the said C. D. ; but that the said C. D., wholly regardless of his marriage covenant and duty, on divers days and times since the said intermarriage, viz. on, &c., at, &c., has committed the crime of adultery with divers lewd women, viz. with one M. R., one N. R., and one R. P., all of, &c., and with divers other lewd women whose names are to your libellant unknown ; that the said C. D. and the said A. B. in her right, hold in fee-simple, real estate of the value of $ — , within this Commonwealth ; that by reason of the said msirriage, the said C. D. has received personal estate to the value of $ — ; that the said C. D. is seised in fee in his own right of a valuable real estate, situate within this Commonwealth, and owns and has a large and valuable personal estate, to wit, of the value of $ — , besides the personal estate which he received by reason of said marriage ; wherefore the said libellant prays right and justice, and that she may be divorced from the bonds of matrimony, between her and her said husband ; that all the personal estate, which he received by reason of said marriage, as aforesaid, or a sum of [ 606 ], FOEMS. § 775 money equal in value to the whole of the same personal estate, may be as- aiirned to her, for her own use, and that the custody and education of two of the said children, viz. M. B. and N. B., on account of their tender years, may be committed and intrusted to her ; and as in duty bound will ever pray, &c. § 773. Another ; more brief. A. B., wife of C. D. of, Sec, libels and gives this honorable Court to be in- formed, that on, &c., at, &c., she was lawfully married to the said C. D., and hath always behaved towards him as a chaste and faithful wife ; yet the said C. D. neglecting his marriage vows and duty, since the said marriage, on, &o., at, &c., committed the crime of adultery with a certam lewd woman, to your libellant unknown. That the said C. D. has a personal estate of the value of $ — , which he received by reason of the said marriage, as well as other personal estate of the value of $ — ; wherefore your libellant prays that the bonds of matrimony may be dissolved between herself and the said C. D. ; that the value of said personal estate, which the said C. D received on account of the said marriage, may be restored to her ; and that such further provision should be made for her out of the estate of the said C. D. as this honorable Court may consider just, &c. § 774. The following three forms of bills for divorce are such as are used in Connecticut, extracted from the second edition of Swift's Digest : — Bill for a Divorce for Wilful Absence. To the Hon. &c. The petition of A. B., of , humbly showeth, that, on the ~ day of , she, by the name of A. S., was lawfully married to L. B., of said , and that she continued to live with the said L. B. in the faithful dis- charge of all the duties incumbent on her as the wife of the said L. B., until the day of , when the said L. B. deserted the petitioner, and has ever since, for more than three years, wholly neglected and refused to live with or provide for the petitioner as his wife, and has wholly neglected to dis- charge any of the duties incumbent on him as her husband. She therefore prays, that this honorable Court will order and decree that the petitioner be divorced from the said L. B., and declared to be sole, single, and unmarried. Dated . A. B. § 775. Mil for a Divorce for Adultery. That the petitioner, on the day of , was lawfully married to C. B., his present wife, by the name of S. B., and that he continued to reside with the said C. B. until the day of , in the faithful discharge of all [ 607 ] § 777 FORMS. the duties incumbent upon him as her husband ; but that, on or about the said day of , and on divers other days and times since said marriage, the said C. B. committed adultery with G. H., of , and on various other days and times with other men whose names are to the petitioner un- known, which acts of the said C. B. were, until recently, to the petitioner unknown ; wherefore he prays this Court, &c. § 776. Bill for Divorce for Drunkenness and Intolerable Cruelty, with a Prayer for Alimony and the Custody of Children. That the petitioner was, on the day of , by the name of A. S., lawfully married to L. B., of , and that she continued to live with the said L. B., in the faithful discharge of all the duties of the marriage relation, until on or about the day of , when the said L. B. became, and has ever since continued to be, grossly and habitually intemperate, and dur- ing all that time has been guilty of intolerable cruelty to the petitioner, and has repeatedly beat and bruised her, and has neglected to provide for her necessary food and clothing ; she further says, that the said L. B. is the owner in fee-simple of a lot of land, with a dwelling-house and other buildings stand- ing thereon, situated in said , bounded, &c., of the value of dol- lars, and that he has personal property of the value of ; she further says, that she is the mother, by the respondent, of two children, of the re- spective ages of two and four years, to wit, , who, by reason of their -tender ages, need her care and attention ; and that the respondent, in conse- quence of his intemperance, is wholly unfit to have the care and custody of said children ; she therefore prays this honorable Court to order and decree, that she be divorced from the said L. B., and declared to be sole, single, and unmarried ; that one third part of said real and personal estate be assigned to her as her just alimony ; and that she be entitled to the care and custody of said children until they arrive at full age, or until the further order of this Court. § 777. Copy of a Record, containing Libel, Sentence, Sfc, in an Adultery Divorce Case in Massachusetts. [This is. from a cop7 made by the clerk, but the names are suppressed.] Commonwealth of Massachusetts. At the Supreme Judicial Court of the Commonwealth of Massachusetts, be- gun and holden at , within and for the County of — , on the second Tuesday of , being the day of said month, Anno Domini, . S. E., of , in the County of , wife of D. R., of , in [608] FORMS. § 778 said County, yeoman, libels and gives this Court to be informed, that her maiden name was S. W., and that by said name she was married to said D. at , in said County, on the fourth day of , in the year eigh- teen hundred and ; that she lived and cohabited with her said hus- band at various places in this Commonwealth, until, being informed of his adultery hereinafter set forth, and in consequence thereof, she abandoned him; that the said D., at divers and many times and places since the said marriage, has committed adultery with divers and many lewd women, the names of some of whom are known to your Hbellant, and others are un- known ; that among these instances of adultery, some seven or eight years ago, said libellant alleges on the first day of July, in the year eighteen hun- dred and forty-four, and at various times before and since said day, at • in the County of ^ , he committed adultery with one A. B. That on a date unknown to said libellant, and on divers days, during the last six years, at said ,, he committed adultery with one C. D. That on the fourth day of July last past, at said , he committed adultery in a house of ill-fame, kept by a Mrs. P., with a lewd woman, whose name is unknown to said libellant. And that during all the time of their cohabitation he treat- ed said libellant with great unkindness and cruelty. Wherefore said libel- lant prays, that said D. may be duly cited to answer to this libel, that he may be required to pay into Court for her use such sum as the Court may judge reasonable to enable her to prosecute the same, that the bonds of matrimony between her and her husband may be dissolved, that she may be invested with title to such property as is in her possession, that reasonable alimony may be decreed to her, that she may be permitted to resume her afore- said maiden name of S. W., and for such other and further decree as to this Court may seem just. This libel was filed in the office of the Clerk of the Supreme Judicial Court on the thirtieth day of March last, and a summons was thereupon issued, directed to the Sheriff of said County of , or his Deputy, commanding him to summon the said D. E., to appear in this present term to answer to the libel aforesaid. And now the libellant ap- pears and enters her said libel, and the said D. R., having been duly sum- moned, also appears. And the evidence in support of the libel produced, being seen and understood by the court, the material facts alleged to sustain the charge set forth in said libel are satisfactorily proved. It is therefore decreed by the cpurt here, that the bonds of matrimony heretofore entered into between the said S. R. and the said D. R. for the causes set forth in said libel, be, and hereby are, dissolved, of which all persons interested and con- cerned are to take notice, and govern themselves accordingly. And it is further decreed by the court here, that the said S. R. have and hold all the personal property in her possession. And also, that she may resume her maiden name of S. W. § 778. Decree for Nullity of Marriage. [For this form the author is indebted to the Hon. Kichard Fletcher, by VOL. II. 39 [ 609 J § 779 FORMS. whom, while a judge of the Supreme Judicial Court of Mas- sachusetts, and for use in a cause then pending before him, it was drawn.] SuFKEME Judicial Court, April Term, 1851. W. H. M. V. M. B. P., otherwise called M. B. M. And now the said parties appearing, the said W. H. M. by B. F. T. and 8., Esqs., his attorneys and counsel, and the said M. B. P., otherwise called M. B. M. by J. C. W., her guardian ad litem appointed by the court ; and the court here, having fully heard the said parties, and having fully heard and considered their several pleas, proofs, and allegations, doth pronounce, de- cree, and declare, that, on the twenty-second day of August, in the year of our Lord one thousand eight hundred and forty-seven, a pretended marriage was had and solemnized between the said W. H. M. and the said M. B. P., otherwise called M. B. M., but that at the time of the solemnization of the said pretended marriage, she, the said M. B. P., otherwise called M. B. M., was an insane person and incapable of making such a contract. Therefore, upon the reason above mentioned, the said court here doth hereby pronounce, decree, and declare, that the said pretended marriage so had and solemnized between the said W. H. M. and the said M. B. P., oth- erwise called M. B. M., was and is, wholly and absolutely, null and void, to all intents and purposes whatsoever. And the said court here doth hereby further pronounce, decree, and declare, that the said W. H. M. was and is free from all bond of marriage with the said M. B. P., otherwise called M. B. M. [For another form, employed in a case of fraud and duress, see Vol. I. § 213.J § 779. Decree affirming the Decree of the Court below, di- vorcing Parties from the Bond of Matrimony. [From Hackney V. Hackney, 9 Humph. Tenn. 450.] This cause was heard on the 25th of January, 1849, before the judges of the Supreme Court, upon the record and proceedings had in the same in the Chancery Court at Columbia, and upon argument of counsel on both sides, and this court being of opinion that there is no error in the decree be- low, orders the same to be in all things aflBrmed. .And the court being sat- isfied that the defendant has been guilty of acts of inhuman cruelty and neglect towards complainant, which makes it unsafe and improper for her longer to cohabit with him, or to be under his dominion and control, it is [610] FORMS. § 780 therefore ordered, adjudged, and decreed, that the bonds of matrimony exist- ing between them be dissolved, annulled, and for nought held, and that complainant be restored to all tlio rights of a feme sole. And it further ap- pearing, that at the time of the marriage the complainant was the owner of a valuable real and personal property, which passed into defendant's pos- session upon the marriage ; and the court being of opinion, that her said real estate, and so much of her personal, and its increase, as remains in specie, ought to be restored to her as a suitable and reasonable provision for her ; it is therefore ordered, adjudged, and decreed, that all the right, title, and interest of defendant in and to any and all of said real and personal prop- erty, be divested out of defendant and vested in Barclay Martin and David D. McFall, to be by them or the survivor of them held for the sole and separate use of complainant, with full power by her to dispose of the same as she may think proper, and that the sheriflF of Maury be directed forthwith to put her in possession of all of said property ascertained to remain in specie by the decree pronounced in this cause by the Chancellor at Colum- bia ; and also to put her in possession of the real estate. It is further or- dered, that defendant pay the costs of the Chancery Court and of this court, and that execution issue for the same against him and his securities in the appeal. ' § 780. Decree of Divorce from Bed and Board. [From Barrere v. Barrere, 4 Johns. Ch. 187. J It appearing from the pleadings and proofs, that the defendant has been guilty of cruel and inhuman treatment of the plaintiff, by repeated acts of personal violence, so as to render it unsafe and improper, under existing circumstances, for her to cohabit with him, or to be under his dominion and control, it is thereupon ordered, &c., that the plaintiff and defendant be separated from bed and board forever ; provided, however, that the parties may, at any time hereafter, by their joint and mutually free voluntary act, apply to the court for leave to be discharged from this decretal order. And it is hereby declared to be the duty of each of them to live chastely during their separation, and that it will be criminal, and an act void in law, for either of them during the life of the other to contract matrimony with any other person. And it is further ordered, &c., that the plaintiff, according to the prayer of her bill, be entitled to, and charged with, the custody, care, and education of the infant son of the parties in the pleadings mentioned ; provided always, that this order for the custody, care, and education of the said infant, may, at any time hereafter, be modified, varied, or annulled upon sufBcient cause shown. And it is further ordered, &c., that the defend- ant pay to the plaintiff' 200 dollars a year, to be computed from the date of this decree, in half-yearly payments, to be applied towards the support and maintenance of the plaintiff and her son, and that this allowance is to con- [611] § 781 FORMS. tinue until further order, and be subject to variation, as future circumstances may require. And it is further ordered, that the defendant pay to the plain- tiff the costs of this suit, to be taxed, and that she have execution therefor, according to the course and practice of the court. § 781. Decree for Permanent Alimony and for the Custody and support of the Children. [Prom Richmond v. Richmond, 1 Green, Ch. (N. J.) 90. Says the report: " On the 13th of October, 1837, the court divorced the parties, a vinculo matri- monii, for the cause of adultery in the defendant, and placed the children under the care and management of the com- plainant. By that decree, a reference was made to a master to inquire into the circumstances and condition of the said parties, and the circumstances and condition of the said chil- dren, and into all the matters touching the amount to be allowed the complainant for alimony, and for the support, clothing, and education of the children." Upon the poming in of the master's report there was a hearing before the court, which resulted in tlie following decree :] It is ordered, adjudged, and decreed, that the defendant, Walter M. Rich- mond, pay to the complainant, Jane Richmond, or to her order, during her natural life, or until the future order of this court to the contrary, the annual sum of two hundred and fifty dollars, payable half-yearly ; that is to say, the sum of one hundred and twenty-five dollars on the thirtieth day of October, and one hundred and twenty-five dollars on the thirtieth day of April, in each and every year, commencing with the day of the date hereof ; the same being considered and deemed a suitable allowance, having regard to the circumstances of the parties respectively, for her support and maintenance, and that the defendant, Walter M. Richmond, do within thirty days after service upon him or his solicitor of a copy of this decree, give such reason- able security for the payment of said annual sum of two hundred and fifty dollars, as shall be approved of by George P. MoUeson, esquire, one of the masters of this court, for the punctual payment of said sum, at the times above specified; and upon his neglect or refusal to give such reasonable security as shall be required by said master, within the time so specified, or upon his default, and that of his surety, in case such surety shall be given, to pay such annual sum at the times when by this decree the same may fall due, as above mentioned, that the complainant be at liberty to apply to this court to award and issue process for the immediate sequestration of the defendant's personal estate, and the rents and profits of his real estate, and to appoint a receiver thereof, according to the statute in such case made and provided, [612] FORMS. § 781 or such other process as this court may, under the circumstances, deem equitable and just, and may be consistent with the power and authority of the court. And it is further ordered, adjudged, and decreed, that the former order of this court, touching a monthly allowance to the said complainant for her own support and that of her children, be deemed to have ceased as to any further allowance from and after the date of this decree. And it is further ordered, adjudged, and decreed, by the said chancellor, pursuant to the power and authority vested in this court, and to the statute in such case made and provided, that the said defendant, Walter M. Rich- mond, pay to the said complainant, Jane Richmond, or her order, until the future order of this court to the contrary, the further annual sum of three hundred and ninety dollars, payable half-yearly, that is to say, the sum of one hundred and ninety-five dollars on the thirtieth day of October, and the sum of one hundred and ninety-five dollars on the thirtieth day of April, in each and every year, commencing with the day of the date hereof, the same being deemed a fit and just allowance for the care and maintenance, education and clothing, of her said children, having like regard to the cir- cumstances and condition of the said defendant, and the age and condition of the said children, and for the support, education, clothing, and mainten- ance of said children. And that the said defendant give such further rea- sonable security as shall in like manner be approved of by the said George P. MoUeson, esquire, master as aforesaid, for the punctual payment of the salid last-mentioned annual sum of three hundred and ninety dollars at the times above specified, which security shall be given within thirty days after the service of a copy of this decree on said defendant or his solicitor. And on his neglect or refusal to give such reasonable security as shall be required of him by the said master, within the time so limited, or upon default of said defendant and his surety to pay the said last-mentioned annual sum, at the times and in the manner last above mentioned, that the said complainant be at liberty in like manner to apply to this court to award and issue process for the immediate sequestration of the property and estate of said defendant, to enforce such payment, or for such other process as may by said court be deemed proper, and shall be consistent with the power and authority of this court. And it is further ordered, adjudged, and decreed, that this decree shall, from the date thereof, be a lien upon the^ personal and real estate of said de- fendant in the State of New Jersey, and that a copy thereof be forthwith served upon said defendant or his solicitor ; and that either party be at liber- ty to apply, upon a future change of circumstances in the parties, or either of them, for such variation or modification of this order and decree, touching the said allowance for alimony and maintenance, and for the support, education, care, and clothing of said children, as such future circumstances may dictate to be just and equitable. And it is further ordered, adjudged, and decreed, that the said defendant [613] § 783 FORMS. pay to the said complainant all her costs which have accrued in the prosecu- tion of this suit, to be taxed by the clerk of this court, and that the said com- plainant have execution therefor, according to the course and practice of this court ; and also, that the said complainant be at liberty to apply to this court for any further order and direction that may be necessary and proper, to carry into full effect this decree. § 782. English Forms. The following forms, adopted by the English Matrimonial Court, will be suggestive ; and, with such alterations as the practitioner will know how to make, they may be used with us : I. Petition for Dioorce. To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. The day of , 18 . The Petition of A. B., of , showeth : 1. That your Petitioner was on the day of ,18 , lawfully mar- ried to C. B., then C. Z., widow, at 2. That after his said marriage your Petitioner lived and cohabited with his said wife at and at , and that your Petitioner and his said wife have had issue of their said marriage three children, to wit, one son and two daughters. 3. That on the day of , 18 , and other days between that day and , the said C. B. at in the county of , committed adultery withK. S. 4. That in and during the months of January, February, and March, 186 , the said C. B. frequently visited the said K. S. at , and on divers of such occasions committed adultery with the said K. S. Your Petitioner therefore humbly prays, that your Lordship will be pleased to decree : {Here set out the relief sought.'} And that your Petitioner may have such further and other relief in the premises as to your Lordship may seem meet. And your petitioner will ever pray, &c. § 783. II. Form of Answer. In Her Majesty's Court for Divorce and Matrimonial Causes. The day of , 18 . A. B. V. C. B. The Respondent, C. B., by P. A., her proctor [solicitor, or attorney, or in person], saith : [614] FORMS. ■ § 785 1. That she denies that she committed adultery with R. S., as set forth in the said petition. 2. Respondent further saith, that on the day of > 18 , and on other days between that day and , the said A. B., at in the county of , committed adultery with X. Y. [Jn like manner Respondent is to state connivance, condonation, or other matters relied on as a ground for dismissing the Petition.'] Wherefore this Respondent humbly prays, that your Lordship will be pleased to reject the prayer of the said petition, and decree, &c. And this Respondent will ever pray, &c. § 784. III. Form of Record. In Her Majesty's Court for Divorce and Matrimonial Causes. The day of , 18 . A. B. V. C. B. A. B. did, in his petition presented in this cause, allege that C. B. did, to wit, on the day of ,18 , commit adultery with R. S. \_Here insert the allegations of the Petition.] C. B. did, in answer thereto, deny [insert the denial and any other neces- sary matters contained in the answer]. Whereupon the said A. B. denied that [here insert the substance of the Replication, if any, and so on for the further statements, if any]. Therefore let a jury come. § 785. IV. Petition for Alimony. To the Judge Ordinary of Her Majesty's Court for Divorce and Matri- monial Causes. C. B. V. A. B. The day of , 18 . The Petition of C. B., the lawful wife of A. B., sheweth : 1. That the said A. B. has for many years carried on the business of at , and from such business derives the net annual income of £ 2. That the said A. B. holds shares of the Railway Company, amounting in value to £ , and yielding a clear annual dividend to him of £ 3. That the said A. B. is possessed of stock in trade In his said business of , to the value of £ [And so on for any other facilities which the husband may possess^ Your Petitioner therefore humbly prays, that your Lordship will be pleased to decree her such sum or sums of money by way of all- [615] § 787 FORMS. mony pendente lite [oi- permanent alimony] as to your Lordship shall seem meet. And your Petitioner will ever pray, &e. § 786. V. Petition for Reversal of Decree. To the Judge Ordinary of Her Majesty's Court for Divorce and Matri- monial Causes. ThS day of , 18 . The Petition of A. B., of Sheweth, 1. That your Petitioner was, on the day of , lawfully married to 2. That on the day of , your Lordship, at the petition of , pro- nounced a decree affecting this Petitioner, to the effect following, to wit. [Here set out the Decree.'} 3. That such decree was obtained in the absence of your Petitioner, who was then residing at [^State facts tending to show, that the Petitioner did not know of the pro- ceedings ; and further, that, had he knovm, he might have offered a suffi- cient defence.'] or, That there was reasonable ground for your Petitioner leaving his said wife, for that his said wife [Here state any legal grounds justifying the Petitioner's separation from his wife.'] Your Petitioner therefore humbly prays, that your Lordship will be pleased to reverse the said decree. And your Petitioner will ever pray, &c. § 787. The reader may, for forms, refer also to the follow- ing cases : Bill, Demurrer, Answer, &c. McDermott's Appeal, 8 Watts & S. 251. Sentence of Nullity by reason of a Former subsisting Mar- riage. Fielding's case, 14 Howell St. Tr. 1327, 1369. Decree of Divorce from the Bond of Matrimony for Adul- tery and Cruelty. McCaulley v. McCaulley, 1 Harring. Del. 137. Decree of Divorce from Bed and Board far Cruelty. Tay man v. Tayman, 2 Md. Ch. 393. Decree for Alimony. Hewitt v. Hewitt, 1 Bland, 101. [616] FORMS. § 789 § 788. Answers. The English form of answer, ante, § 783, can be easily adapted to American use. Our books do not contain any desirable form of the answer, and the author does not deem it necessary to draw one. In Jeans v. Jeans, 2 Harring. Del. 38, is the following plea to a petition for divorce : And the said Abel Jeans, by, &c., comes and defends, &c., and says actio non, &c., because he says, that the said Priscilla Jeans, after the said supposed transgressions in the said petition alleged, she the said Priscilla has admitted the said Abel Jeans, the respondent, into conjugal society or embraces, after she the said Priscilla knew of the said acts of adultery. Wherefore the said Abel Jeans prays judgment, &c., whether the said Pris- cilla ought to have and maintain her suit aforesaid, thereof against him, &c. In Orrok v. Orrok, 1 Mass. 341, we have the following : And the said Alexander Orrok comes and defends, &c., when, &c., and says the allegations, matters, and things in the libel contained are false and groundless, and that there is not any cause of divorce as prayed for ; and thereof he puts himself on trial, &c. In Pastoret v. Pastoret, 6 Mass. 276, are the following : The respondent in his plea, protesting against the truth of the several allegations contained in the libel, says, that the said Mary hath, at divers times before the filing of her said libel, committed the crime of adultery with one M. Luyo, and with divers other persons, and therefore he prays that the prayer thereof may not be granted. And the libellant, for replication, says, that all the allegations contained in said libel are true, and that by reason of anything above in the answer of the said John contained, she ought not to be precluded from having the prayer of her said libel granted ; because she says, that all the several alle- gations in the said answer contained are false and groundless, and that she is in no wise guilty in manner and form as the said John in his said answer hath alleged ; and this she prays may be inquired of by the court. And the said John likewise. § 789. The author is aware, how incomplete are these forms, and how inadequate they are to meet many of the exigencies of practice. But this book is intended for use in all the States, and it is impossible, seeing the practice in the several States differs, that any general collection should be [617] § 789 FORMS. more than suggestive — it could not be complete, unless a set of forms were made for each State. A few particular allegations will be added as follows : 1. Adultery alleged in Recrimination. That the complainant, on divers days during the months of June, July, August, September, and October, during the years 1844, 1845, 1846, and between the first day of June and the first day of November in the years aforesaid, at Fort Lee, Bull's Ferry, and Wehawken, in the State of New Jersey, did repeatedly commit adul- tery with some female to defendant unknown ; and more particularly, that the said complainant did, during the year 1846, commit adultery with thef said female at a hotel at Fort Lee aforesaid. [Held suflicient by Edwards, J., in Morrell v. Morrell, 1 Barb. 318.] 2. Desertion. That the defendant, on the tenth day of August, in the year eighteen hundred and fifty-two, deserted the plaintiff, and from said day to the day of the filing of this libel hath continued so to desert the plaintiff, for the space of four years and more next preceding the said filing. [Original. But the pleader, in drawing the libel for desertion, will follow the terms of the statute. This form will not be found universally sufiicient.] 3. Impotence. That the said Roxana, at the time of her pretended mar- riage with the plaintiff, and ever since, had and hath a narrowness of the vagina not admitting of penetration by man, and also that she was and is destitute of the uterus, and incapable of being carnally known by man or of becoming a mother, and that these her said defects are incurable. [Original.] 4. Impotence, — another form. That the said John was at the time of his said pretended marriage with the libellant, and ever since has been, and is, destitute of testicles, and without ability to erect the penis, and that by reason of these his defects he is and ever since his pretended marriage has been incapable of knowing women carnally, and that his said defects are incurable. [Original. These two forms are adapted to cases in which there is no triennial cohabitation, and where, therefore, some particular visible de- fect must be alleged. See ante, § 585. For the other class of cases, see ante, § 578, &c.] [613] INDEX TO CASES CITED. In the following Index, where the plaintiff is the King or Queen (Eex, Reg., or Ee- gina), the State, Commonwealth, United States, or the like, the name of the defendant is put first; in other oases, the name of the plaintiff. A. Section A.V. B. (1 Spinks,,12) i. 335; ii. 558 Abbey, State v. (29 Vt. 60) i. 424 Abbot V. Bayley (6 Pick. 89) i. 601 Abbott V. Mackinley (2 Miles, 220) i. 557 AbellB. Douglass (4 Denio, 305) i. 412 Abernathy v. Abernathy (8 Fla. 243) - i. 582; ii. 287 Abington v. North Bridgewater (23 Pick. 170) i. 540; ii. 119 Ableman v. Booth (21 How. U. S. 506) ii. 157 Acre V. Koss (3 Stew, 288) ii. 744 Adams v. Adams (20 N. H. 299) ii. 608 V. Adams (16 Pick. 254) ii. 606 V. Gay (19 Vt. 358) i. 414, 424 V. Hurst (9 La. 243) i. 707 ; ii. 337 Adamson, Kex v. (Sav. 56) ii. 253 Addicks, Commonwealth v. (5 Binn. 520) ii. 533 • , Commonwealth w. ( 2 S. &R. 174) ii. 533 Addison v. Bowie (2 Bland, 606) ii. 528 Ahrenfeldt v. Ahrenfeldt (Hoff- man, 47) i. 777, 783, 784,821; ii. 674 Section Ahrenfeldt v. Ahrenfeldt (Hoff- man, 497) ii. 529, 530, 532, 534 Albee v. Wyman (10 Gray, 222) ii. 479, 722 Aldis V. Chapman (1 Selw. N. P. 11th ed. 298) i. 570 Aldridge, Ex parte (1 Swab. & , T. 88) i. 783, 810 - — V. Montgomery (9 Ind. 302) ii. 308 Aleson v. Aleson (2 Lee, 676) ii. 585, 594 Alexander v. Alexander (31 Ala. 241) i. 430 V. Alexander (2 Swab. & T. 95) ii. 311, 618, 646 V. Alexander (2 Swab. &T. 385) i. 778; ii. 321,498 V. Miller, (4 Harris, Pa. 215) i. 562, 565, 566 V. Torrence (6 Jones, N. C. 260) i. 418, 430 Allan V. Young (Ferg. 37) i. 201 Allen V. Aldrioh (9 Fost. N. H. 63) i. 568, 570, 573, 610 V. Allen (Hemp. 58) ii. 346, 408 V. Allen (2 Swab. & T. 107) ii- 412 V. Coster (1 Beav. 202) ii. 529 U.Hall (2 Nott & McC. 114) i. 494,538, 541 [619] ANO INDEX TO CASES CITED. ART Allen V. Maclellan (2 Jones, Pa. 328) ii. 753, 760, 761, 762 V. Watson (2 Hill, S. C. 319) i. 411, 415, 422, 424 AUis V. Billings (6 Met. 415) i. 140 Allison, Kex v. (Kuss & Ey. 109) i. 483 Almond v. Almond (4 Sand. 662) i. 71, 719, 791 ; ii. 291, 355, 358, 362, 427 Alna V. Plummer (4 Greenl. 258) i. 566 Altemus's case (1 Ashm. 49) ii. 725 Alves V. Hodgson (7 T. R. 241) i. 535 Ambrose v. Kerrison (4 Eng. L. & Eq. 361, 10 C. B. 776) i. 565 Ames V. Chew (5 Met. 320) i. 582, 601; ii. 732 V. Norman (4 Sneed, 683) ii. 716 Amos V. Amos (3 Green Ch. 171) ii. 302, 398, 429, 457, 459, 461,495 Amsden v. Amsden (Wright, 66) ii. 472, 678 Anderson v. Anderson (1 Edw. Ch. 380) i. 650 V. Anderson (4 Greenl. 100) ii. 237, 639 Andrews v. Andrews (5 S. & B. 374) ii. 260 V. Pond (13 Pet. 65) i. 402 V. Russell (7 Blackf. 474) i. 101 Angler v. Angier (1 Gilb. Ch. 152) ii. 352, 353 Angle D. Angle (12 Jur. 525) ii. 18, 22, 23 V. Angle (1 Robertson, 634) ii. 49, 103, 104 Anichini v. Anichini (2 Curt. Ec. 210) i. 804 ; ii. 5, 22, 98 Annice, State v. (N. Chip. 9) i. 442 Anonymous (35 Ala. 226) i. 332 (2 Atk. 210) ii. 505 (Deane & Swabey, 295) i. 116; ii. 264, 582, 583, 694 (2 Des. 198) ii. 361, 363 (4 Des. 94) i. 764 ; ii. 358, 359, 531, 533, 552 (1 Dyer, 13, pi. 61) li. 690 (22 Eng. L. & Eq. 637) i. 335; n. 688 [620] Anonymous (1 Hayw. 347) ii. 355, 501 (5 How. N. Y. Pract. 306) ii. 235 (Lofft, 314) ii. 76 (LoflFt, 328) i. 472 (27 Maine. 563) i. 827, 834 ; ii. 314, 329 (5 Mass. 197) ii. 173, 314 (6 Mass. 147) ii. 33, 38,39 (9 Mod. 43) ii. 733 (4 Pick. 32) i. 1 27 ; ii. 564 (2 P. Wms. 75) i. 68 (2 Salk. 566) i. 421 (2 Show. 132) i. 554 (2 Show. 282) ii. 353 . (2 Sim. N. s. 54; 11 Eng. L. & Eq. 281) ii. 529, 533, 640 ■ — (1 Stra. 315) i. 83 (2 Ves. sen. 489) ii. 506 (19 Wend. 16) ii. 529, 546 Anstey v. Manners (Gow, 19) ii. 690, 694 Anthony v. Anthony (30 Law J. N. s. Mat. 208) ii. 539 V. Anthony (1 Swab. & T. 594) ii. 768 Arbery v. Ashe (1 Hag. Ec. 214) ■ .ii. 563 Archer v. Haithcock (6 Jones, N. C. 421) i. 442, 446 Archey v. Stephens (8 Ind. 411) ii. 563 Arden, State v. (1 Bay, 487) ii. 590 Arkley v. Arkley (3 Phillim. 500) ii. 80, 623 Armant v. Her Husband (4 La. An. 137) i. 724 Armstrong v. Armstrong (32 Missis. 279) ii. 45, 49, 242, 250, 300, 472, 636 V. Hodges (2 B. Monr. 69) i. 266, 512 V. M'Ghee (Addison, 261) i. 238 V, Stone, (9 Grat. 102) ii. 527 Arnold v. Earle (2 Lee, 529) i. 144 Arthur v. Broadnax (3 Ala. 657) i. 442, 695 V. Gourlay (2 Baton, 184) i. 723, 781 BAI INDEX TO CASES CITED. BAR Ash V. Way (2 Grat. 203) i. 548 Ashbaugh v. Ashbaugh (17 111. 476) ii. 127, 211, 682 Ashe's case (Pr. Ch. 703) i. 140 Ashley V. Ashley (2 Swab. & T. , 288) ii. 321 Ashton V. Ashton (1 Ch. C. 164) ii. 353 Astley V. Astley (1 Hag.Ec. 714) ii. 80, 89, 626, 642 Athlone Peerage case (8 CI. & F. 262) i. 478 Atkins V. Atkins (reported i. 729, note), i. 726, 750, 754 ; ii. 278, 285 V. Curwood (7 Car. & P. 756) i. 553, 554, 556 Atkinson v. Atkinson (2 Add. Ec. 484) ii. 285 V. Barnard (2 Phillim. 316) ii. 739 ■ V. Medford (46 Maine, 510) i. 128, 136 Atkyns v. Pearce (2 C. B. n. s. 763) i. 574 Auditor, People v. (1 Scam. 537) i. 667, 677 Aughtie V. Aughtie (1 Phillim. 201) i. 105, 316 ; ii. 265, 376, 647 Austin V. Austin (10 Conn. 221) ii. 19, 346 Avery v. Avery (12 Texas, 54) i. 405 Aveson v. Kinnaird (6 East, 188) ii. 660, 723 Ayer v. Ayer (16 Pick. 327) i. 570 ; ii. 741 V. Warren (47 Maine, 217) i. 600 Aymar v. Roff (3 Johns. Ch. 49) i. 148, 150 Ayi'ey w. Hill (2 Add. Ec. 206) ii. 563 B. B. V. B. (28 Eng. L. & Eq. 95) i. 322, 327 ; ii. 583 B. V. M. (2 Robertson, 580) ii. 583 BabcockM. Smith (22 Pick. 61) ii. 717 Babe v. Hanna (5 Ohio, 530) i.626 Bachelor v. Bachelor (1 Mass. 256) ii. 315 Backus V. Backus (3 Greenl. 136) ii. 38, 334, 338 Bacon v. Bacon (2 Swab. & T. 53) ii. 256, 258, 519 Bailey, Ex parte (6 Dowl. P. C. 311) ii. 546 Bailey v. Fiske (34 Maine, 77) i. 308 V. McDowell (2 Harring. Del. 34) i. 424 Baily v. Baily (1 Lee, 536) ii. 30 Bain v. Bain (2 Add. Ee. 253) ii. 424 Bainbridge v. Pickering (2 W. Bl. 1325) ii. 528 Baker v. Baker (13 Cal. 87) i. 187, 190, 548; ii. 245, 251 V. Barney (8 Johns. 72) i. 578, 619; ii. 401 V. Keen (2 Stark. 501) ii. 528 V. People (2 JBLiU, N. Y. 325) ii. 700 Baldwin v. Baldwin (2 Harring. Del. 196) ii. 312 V. Baldwin (6 Gray, 341) ii. 419 Balfour v. Carpenter (1 Phillim. 221) i. 294 Ball V. Ball (3 Phillim. 147) ii. 582 V. Ball (2 Sim. 35) ii. 529, 546 V. Mannin (3 Bligh, n. s. 1) i. 125 V. Montgomery (2 Ves. 191) ii. 352 Ballentine v. Ballentino (1 Halst. Ch. 471) ii. 406 Banbury Peerage case (1 Sim. & S. 153) i. 447 Bancroft v. Dumas (21 Vt. 456) ii. 75 Baner v. Day (3 Wash. C. C. 243) i. 478 Banfort, State v. (2 Rich. 209) i. 106 Bankston v. Bankston (27 Missis. 692) ii. 351,433, 448, 492, 497 Baptiste v. De Volunbrun (5 Har. & J. 86) i. 409 Barber v. Barber (16 Cal. 378) i. 304 V. Barber (1 Chand. 280) ii. 202,429,499, 737 V. Barber (21 How. U. S. 582) i. 87 ; ii. 125, 203, 499 V. Barber (14 Law Re- porter, 375) i. 813, 834; ii. 7 V. Root (10 Mass. 260) ii. 141, 144, 198, 232, 712, 754 Barbour v. Barbour (46 Maine, 9) ii. 708 Barden v. Barden (3 Dev. 548) i. 830 ii. 687 V. Keverberg (2 M. & W. 61) i. 591, 592 [621 J BAS INDEX TO CASES CITED. BEA Barham v. Barham (1 Hag. Con. 5) ii. 303, 305 Barker v. Barker (2 Add. Ec. 285) ii. 5, 25 V. Dixie (Cas. temp. Hardw. 264) ii. 723 Barkman v. Hopkins (6 Eng. 157) i. 424 Barkshire v. State. (7 Ind. 889) i. 310 Barlee v. Barlee (1 Add. Ec. 301) i. 29, 634, 717, 722, 771, 804, 806 Barnes v. Allen (30 Barb. 663) i. 573, 626 V. Barnes (Wright, 475) ii. 38, 50 V. Camack (1 Barb. 392) li. 723 V. Wyethe (28 Vt. 41) i. 175, 245 Barnett v. Kimmell (11 Casey, 13) i. 222 Barney v. Dimmitt (Wright, 44) i. 131 Barnhard, State v. (2 West. Law Jour. 301 ; Page on Div. 153) i. 754 Barnsley, Ex parte (3 Atk. 168) i. 125 Baron de Bode's case (8 Q. B. 208) i. 428 Barr v. Fairie (5 Mor. Sup. 921) i. 202 Barratt v. Buxton (2 Aikens, 167) i. 131 Barrere v. Barrere (4 Johns. Ch. 187) i. 29, 71, 77, 740; ii. 228, 457, 472, 495, 530, 532, 533, 552, 729 Barrs v. Jackson (1 Y. & Col. C. C. 585) ii. 748, 757 Barry v. Barry (1 Hopkins, 118) ii. 235 V. Kandolph (3 Binn. 277) i. 83 Bartlett v. Bartlett (Clarke, 460) ii. 376, 394, 403 Barton v. Morris (15 Ohio, 408) i. 212 Barwell v. Brooks (3 Doug. 371) i. 591 Bascom v. Bascom (7 Ohio, 2d pt. 125) ii. 260 u. Bascom (Wright, 632) i. 754, 768; ii. 250, 354, 376, 532 [622] Bascomb v. Bascomb (5 Fost. N. H. 267) i. 96, 332 Bashaw v. State (1 Yerg. 177) i. 279 Batchelder v. Batchelder (14 N. H. 380) i. 813; ii. 173, 332, 344, 682 Bates V. Kimball (2 D. Chip. 77) i. 675 Battey v. Battey (1 K. I. 212) ii. 355, 358, 446 Batthews v. Galindo (4 Bing. 610, 3 Car. & P. 238) i. 542 Baughan v. Graham (1 How. Missis. 220) i. 424 Bauman v. Bauman (18 Ark. 320) i. 71; ii. 429,431, 500 Bawden v. Bawden (2 Swab. & T. 417) ii. 305 Baxtar v. Buckley (1 Lee, 42) i. 112, 272 Baxter v. Baxter (1 Mass. 346) ii. 241 V. Portsmouth (5 B. & C. 170) i. 125; ii. 566 Baxter, Reg. v. (2 U. C. (J. B. 370) ii. 548 Bayard v. Morphew (2 Phillim. 321) i. 299 Bayly v. Bayly (2 Md. Ch. 326) ii. 508 Beach v. Beach (2 Hill, N. Y. 260) i. 650 V. Beach (11 Paige, 161) ii. 327, 623 V. Woodhull (Pet. C. C. 2) i. 670 V. Workman (20 N. H. 379) i. 424 Beal V. Smith (14 Texas, 305) i. 409 Beamish v. Beamish (9 H. L. Cas. 274) i. 270, 289, 392 V. Beamish (1 Jur. n. S. 455) i. 278, 289 Bean v. Briggs (4 Iowa, 464) i. 411, 418 V. Morgan (4 McCord, 148) i. 607 Beard v. Basye (7 B. Monr. 133) i. 402, 405, 406 Beard v. Webb (2 B. & P. 93) i. 584 ; ii. 438 Beatty v. Beatty (Wright, 557) i. 750 Beauchamp v. Mudd (Hardin, 163) i. 409 Beauraine v. Beauraine (1 Hag. Con. 498) ii. 305 BEN INDEX TO CASES CITED. BIK Becket v. Becket (1 7 B. Monr. 370) i. 773; ii. 682 Bedell v. Bedell (1 Johns. Ch. 604) i. 765; ii. 80, 228,457, 472, 583, 552 Bedle V. Beard (12 Co. 4) i. 516 Beebe v. Beebe (10 Iowa, 133) i. 729, 730, 752, 763 Beeby v. Beeby (1 Hag. Con. 142) i. 634 ; ii. 88 V. Beeby (1 Hag. Ec. 789) ii. 37, 38, 46, 49, 61,76, 87, 97, 339, 635 Beekman v. Saratoga and Sche- nectady Railroad (3 Paige, 45) i. 679 Begbie v. Begbie (3 Halst. Ch. 98) ii. 432 Belcher v. Belcher (1 Curt. Ec. 444) ii. 387, 894 V. Belcher (Phillim. pamph.) i. 332 V. State (8 Humph. 63) i. 825 "Selgard, Commonwealth v. (5 Gray, 95) i. 515 Bell V. Hallenback (Wright, 751) ii. 528 u. Jones (10 Md.-322) ii. 421 M. Nealy (1 Bailey, 312) i. 627 V. Perkins (Peck, 261) i. 674 Benadum v. Pratt (1 Ohio State, 403) i. 605; ii. 737 Benjamin v. Benjamin (15 Conn. 347) i. 557, 562 Bennett v. Sfaith (21 Barb. 439) i. 145, 568, 626 ; ii. 673 V. State (Mart. & Yerg. 133) i. 131 u. Stokes (2 Misso. 69) iL401 V. Toler (15 Grat. 588) ii. 547 Bennie v. Bennie (11 Scotch Sess. Cass. n. s. 1211) ii. 149 Benson v. Remington (2 Mass. 113) ii. 528 Benson v. Welby (2 Saund. Wms. ed. 154) i. 422 Bent V. Bent (2 Swab. & T. 392) ii. 519, 536 Bentley v. Griffin (5 Taunt. 356) i. 617 Benton v. Benton (1 Day, 111) i. 178, 323, 824 Bergen v. Bergen (22 111. 187) ii. 249,445, 502, 519 Berkshire v. State (7 Ind. 389) i. Ill, 310 Berlen v. Shannon (3 Gray, 387) i. 571,626 See Burlen. Berry v. Bakeman (44 Maine, 164) i. 170, 171 Berthelemy v. Johnson (3 B. Monr. 90) i. 663, 669, 678, 693, 697, 698, 699; ii. 199, 230 Best V. Best (1 Add. Ec. 411; Poynter Mar. & Div. 198) i. 179, 764, 765 ; ii. 21,33, 40, 41, 80, 262, 316, 337, 626, 635, 637, 642 V. Best (2 Phillim. 161) ii. 281 Betcher v. Betcher (cited 2 Phil- lim. 165) ii. 48 Bettle V. Wilson (14 Ohio, 257) i. 652 Betts V. Betts (1 Johns. Ch. 197) ii. 241, 242, 626 Bienvenu v. Buisson (14 La. An. 386) ii. 72 Biffin V. Bignell (6 Jur. N. s. 647, 7 H. & N. 877) i. 580 Bigby V. Powell (25 Ga. 244) i. 209 Bigelow V. Bigelow (Wright, 416) i. 797 Billing V. Pilcher (7 B. Monr. 458) i. 568, 620 Billings V. Billings (11 Pick. 461) ii. 245 Billingshurst, Rex v. (3 Maule & S. 250) i. 292 Billingsley v. Dean (11 Ind. 331) i. 418 Bingham v. Cabbot (3 Dall. 19) i. 478 V, Miller (1 7 Ohio, 445) i. 669, 686; ii. 199 Bingsted v. Lanesborough (3 Doug. 197) i. 588 Birbey v. Birbey (15 111. 120) i. 835 Bird V. Bird (1 Lee, 209) ii. 402 V. Bird (1 Lee, 418) ii. 457, 461 V. Bird (1 Lee, 572) ii. 387, 498 V. Bird (1 Lee, 621) i. 299 ; ii. 376 V. Bird (Wright, 98) ii. 604 Birdsong v. Birdsong (2 Head, 289) i. 135 Birkby v. Birkby (15 111. 120) i. 834; li. 318 Birmingham, Rex u. (8 B. & C. 29 ; 2 Man. & R. 230) i. 173, 283, 294 [ 623 ] BOE INDEX TO CASES CITED. BOY Birney v. Hann (3 A. K. Mar. 322) i. 540 Birt V. Barlow (1 Doug. 171 i. 441,442,479,483,491, 498 Birthwhistle v. Vardill (7 CI. & F. 895) i. 548 Bisbing V. Graham (2 Harris, Pa. 14) ii. 723 Bishop V. Bishop (S Casey, 412) i. 789; ii. 177, 674, 682 V. Marshall (6 N. H. 407) i. 345 V. Shepherd (23 Pick. 492) ii. 528 V. State (30 Ala. 34) i. 84 Bissell t;. Bissell (1 Barb. 430) 11. 409 Black V. Bryan (18 Texas, 453) i. 554, 617 Blackburn v. Mackey (1 Car. & P. 1) ii. 528 Blackham's case (1 Salk. 290) ,_ ii. 754 Blackmore v. Brider (2 Phillim. 359) i. 315, 316; ii. 232 Blake v. Blake (7 Iowa, 46) ii. 435 Blaker v. Cooper (7 S. & R. 500) ii. 376, 717 Bland's case (Macqueen Pari. Pract. 605) ii. 91 Blankard v. Galdy (2 Salk. 411) i. 68 Blaquiere v. Blaquiere (3 Phil- lim. 258) ii. 457 Bliss V. Houghton (13 N. H. 126) i. 402 Blisset's case (Loflft, 748) ii. 546 Blodget V. Brinsmaid (9 Vt. 27) i. 314 Blood V. Harrington (8 Pick. 552) ii. 303 Blowers v. Sturtevant (4 Denio, 46) i. 568, 579, 791 Blyth V. Topham (Cro. Jac. 158) ii. 75 Blythwood v. Everingham (3 Rich. 285) i. 584 Boas V. Nagle (3 S. & R. 250) i. 84 Boaz, Ex parte (31 Ala. 425) ii. 546 Boatman v. Curry (25 Misso. 433) i. 443 Bodkin v. Case (Milward, 355) i. 489; ii. 267, 290, 759 Boethlinck v. Schneider (3 Esp. 58) i. 428 [624 J Boggess V. Boggess (4 Dana, 307) i. 72, 722, 734; ii. 260, 317, 318, 355,358, 514, 750, 751 Bogget V. Frier (11 East, 301) i. 591, 592 BoUin u. Shiner (2 Jones, Pa. 205) i. 343 Bolton V. Prentice (2 Stra. 1214) i. 572 Bond V. Bond (2 Lee, 45) i. 506, 510 V. Bond (2 Swab. & T. 93) ii. 131 Bonham v. Badgley (2 Gill, 622) i. 105, 120 Bonneau v. Povdras (2 Rob. La. 1) ' ' i. 527; ii. 736 Bonner v. Montgomery (9 B. Monr. 123) ii. 75 Boone w. Missouri Iron Co. (17 How. U. S. 340) ii. 75 Booth V. Hodgson (6 T. R. 405) ii. 75 Borden v. Fitch (15 Johns. 121) ii. 126, 159, 164, 202, 762 Borlase v. Borlase (4 Notes Cas. 108) i. 130 Bostock V. Bostock (1 Swab. & T. 221) ii. 58 Bostwick V. Bogardus (2 Root, 250) i. 424 V. Perkins (4 Ga. 47) ii. 133 Boulton V. Boulton (2 Swab. & T. 405) ii. 743 V. Boulton (2 Swab. & T. 638) ii. 32 V. Prentice (1 Selw. N. P. 298) ii. 555 Bourne v. Simpson (9 B. Monr. 544) ii. 260, 751 Bowen, Reg. v. (2 Car. & K. 227) i. 545 Bowers v. Bowers (19 Misso. 351) i. 724, 826 ; ii. 684 -v. Bowers (10 Rich. Eq. 551) i. 320 Bowie V. Bowie (3 Md. Ch. 51) i. 718, 722, 734 ; ii. 49, 52 Bowles V. Bingham, (2 Munf. 443, 3 Munf. 599) i. 187, 448, 547 Bowzer v. Ricketts (1 Hag. Con. 213) ii. 748 Boyce v. Owens (1 Hill, S. C. 8) i. 583, 607 Boyd V. Boyd (Harper, 144) i. 767 Boykin v. Rain (28 Ala. 332) ii. 712 BRE INDEX TO CASES CITED. BRO Boyle V. Boyle (Comb. 72 ; 3 Mod. 164) ii. 640 Boynton v. Boynton (1 Swab. & . T. 324) ii. 536 V. Boynton (2 Swab. & T. 275) ii. 519, 536, 538 Braekett v. Drew (20 N. H. 441) i. 603 Bradford v. Brooks (2 Aikens, 284) i. 675 Bradley v. Bradley (2 Fairf. 367) ii. 639 . V. State (Walk. Missis. 156) i. 754 Bradshaw v. Heath (13 Wend. 407) ii. 144, 159 V. State (1 Yerg. 177) i. 283 Brady, State v. (9 Humph. 74) i. 308 Braham v. Burchell (3 Add. Ec. 243) ii. 309 Brainard ». Brainard (Wright, 354) ii. 250, 278, 674 Bramley, Rex v. (6 T. R. 330) i. 547 Brampton, Rex v. (10 East, 282) i. 68, 396, 400, 496, 523, 531 Bramwell v. Bramwell (3 Hag. Ec. 618) i. 717, 719, 736, 804; ii. 42,44, 56, 62, 613, 619, 629 Bray 0. Bray (1 Hag. Ec. 163) i. 726 ; ii. 640 V. Bray (2 Halst. Ch. 27) ii. 489, 495 V. Bray (2 Halst. Ch. 506) ii. 615, 621, 646 V. Bray (2 Halst. Ch. 628) ii. 9, 625, 635 , State V. (13 Ire. 289) i. 291 Breakey v. Breakey (2 U. C. Q. B. 349) i. 278, 415, 440, 444, 508, 509, 524 Brealy v. Reed (2 Curt. Ec. 833) ii. 29, 243 Brearly, State v. (2 Southard, 555) ii. 551 Breinigw. Breinig (2 Casey, 161) ii. 44S, 651, 658, 662 ■ V. Meitzler (11 Harris, Pa. 156) i. 554, 568, 730 Brentlinger v. Brentlinger (4 Rawle, 241) ii. 260 Brett u. Brett (5 Met. 233) ii. 128, 212, 682 Brewer v. Linnaeus (36 Maine, 428) ii. 125 VOL. n. 40 Briggs V. Briggs (2 Phillim. 40) ii. 467 Briggs, Commonwealth v. (16 Pick. 203) ii. 543 V. Hubbard (19 Vt. 86) i. 99 V. Morgan (2 Hag. Con 324 ; 3 Phillim. 325) i. 58, 322, 323, 331, 333; ii. 582,584, 585, 590, 594 Bright V. White (8 Misso. 421) i. 424 Brisco V. Brisco (2 Add. Ec. 259) ii. 80, 341 V. Brisco (1 Hag. Ec. 165) ii. 637 V. Brisco (2 Hag. Con. 199) ii. 401, 425, 447, 449, 451, 452, 459, 460, 494 Bristow V. Sequeville (5 Exch. 275) i. 529, 535 Britton, State v. (4 McCord, 256) i. 497 Broadhead v. Noyes (9 Misso. 55) i. 402 Broadstreet v. Broadstreet (7 Mass. 474) i. 712; ii. 306, 308 Brodie v. Brodie (2 Swab. & T. 259) ii. 171 Brogden v. Brown (2 Add. Ec. 441) ii. 563 Brom V. Brom (2 Whart. 94) ii. 260 Bromley v. Bromley (2 Add. Ec. 158 ; Poynter Mar. & Div. 184) i. 739 ; ii. 640 Bronson v. Newberry (2 Doug. Mich. 38) i. 101 Brook V. Brook (9 H. L. Cas. 193) i. 117, 119, 379, 385, 388 V. Brook (3 Smale & G. 481) i. 356, 378 Brookes v. Brookes (1 Swab. & T. 326) i. 810 Brookfield v. Morse (7 Halst. 331) ii. 744 Brooks V. Clay (3 A. K. Mar. 545) i. 540 Brotherton v. Hellier (1 Lee, 599) ii. 309 Brower v. Fisher (4 Johns. Ch. 441) i. 133 Brown V. Ackroyd (5 Ellis & B. 819; 34 Eng. L. & Eq. 214) ii. 388, 391 1). Brown (1 Des. 196) i. 446 V. Brown (5 Gill, 249 ; 2 Md. Ch. 316) i. 806, 810 [625 J BUG INDEX TO CASES CITED. BUR Brown v. Brown (1 Hag. Ec. 523) i. 322, 332, 333 ; ii. 594 V. Brown (2 Hag. Ec. 5) ii. 262, 446, 450, 460 V. Brown (13 Jur. 370) i. 226 V. Brown (5 Mass. 320) ii. 642 V. Brown (15 Mass. 389) ii. 311 V. Brown (2 Md. Ch. 316) i. 646, 773; ii. 741 V. Brown (2 E. I. 381) ii. 651 V. Commonwealth (2 Leigh, 769) i. 791 V. Johnston (Ferg. Con. sist. Law, Eep. 229) ii. 563 V. Killingsworth (4 Mc- Cord, 429) i. *g4, 607 V. Patton (3 Humph. 135) i. 573 V. Peck (1 Eden, 140) i. 635 V. Pratt (3 Jones Eq. 202) i. 413 V. Westbrook (27 Ga. 102) i. 76, 95, 96, 137 ; ii. 307 Browne v. Burns (5 Scotch Sess. Cas. N. 8. 1288) i. 233 ; ii. 386, 403, 406 Browning v. Headley (2 Rob. Va. 340) ii. 714, 715 V. Headley (1 Sim. & S. 250) ii. 734 — ^ V. Reane (2 Phillim. 69) i. 124, 127, 131, 136; ii. 563, 564, 739 Brownsword v. Edwards (2 Ves. sen. 243) ii. 760 Bruce v. Burke (2 Add. Ec. 471) i. 299,494; ii. 640 Bruere v. Bruere (1 Curt. Ec. 566) ii. 395, 448 Brunswick v. Litchfield (2 Greenl. 28) i. 279, 658 V. McKean (4 Greenl. 508) i. 516 Brush V. Blanchard (18 111. 46) ii. 527 Bryan v. Bryan (34 Ala. 516) ii. 546 Bryant v. Bryant (Wright, 156) ii. 614 V. Kelton (1 Texas, 434) i. 409, 418 Bryson v. Bryson (17 Misso. 590) i. 678, 686 V. Campbell (12 Misso. 498) i. 668, 678 Buchanan v. Thorm (1 Barr, 431) i. 344 [626] Buckholts V. Buckholts (24 Ga. 238) i. 99, 227, 249 ; ii. 38 Buckland, People v. (13 Wend. 592) ii. 639, 640 Buckley, State v. (2 Harring. Del. 552) i. 744 Bufialoe v. Whitedeer (3 Harris, Pa. 182) ii. 717 Buller V. Freeman (Amb. 301) i. 396 Bullock M. Zilley (Saxton, 489) ii. 718 Bunting v. Lepingwel (4 Co. 29 ; Sir F. Moore, 169) ii. 754 Bunyard v. Bunyard (32 Law J. N. 8. Mat. 176) ii. 654 Burchetw. Burchet (Wright, 161) ii. 614 Burckle v. Dry Dock (2 Hall, 151) ii. 75 Burden v. Burdell (2 Barb 473) ii. 334, 349 Burdick v. Briggs (1 Wis. 126) ii. 706 Burditt V. Grew (8 Pick." 108) i. 70 Burgess v. Burgess (1 Hag. Con. 384) i. 53, 119, 316, 377 ; ii. 232 V. Burgess (2 Hag. Con. 223) ii. 7, 243, 244, 248, 613,615, 625, 642 Burk V. Phipps (1 Root, 487) ii. 528 Burke v. Winkle (2 S. & R. 189) i. 585 , Reg. V. (3 Crawf. & Dix C. C. 96) i. 116 Burlen v. Shannon (14 Gray, 433) i. 624, 625 See Berlen Burlington & Misso. River E. E. Co. V. Marchand (5 Iowa, 468) i. 84 Burn V. Farrar (2 Hag. Con. 369) i. 400 Bumham v. Rangeley (1 Woodb. &M. 7) ii. 119 Burr V. Burr (2 Edw. Ch. 448) ii. 334, 347, 605, 607 V. Burr (7 Hill, N. Y. 207) ii. 351, 425, 428, 442, 445,457,472 V. Burr (10 Paige, 20) i. 71, 74 ; ii. 30, 56, 57, 58, 442, 737 V. Burr (10 Paige, 166) ii. 260, 737 Burrett v. Booty (8 Taunt. 343) ii. 401 Burritt v. Burritt (29 Barb. 124) ii. 558 Burroughs v. Burroughs (2 Swab. & T. 303) i. 805 BYN INDEX TO CASES CITED. CAM Burrows v. Burrows (1 Hag. Ec. 109) i. 130 V. Jemino (2 Stra. 733) ii. 701 Buraler v. Bursler (5 Pick. 427) ii. 365, 429, 446, 457 Burt V. Barlow (1 Doug. 171) i. 445 V. Burt (2 Swab. & T. 88) i. 524 V. Hurlburt (16 Vt. 292) ii. 712 Burtis V. Burtis (Hopkins, 557) i. 24, 71, 72, 166, 178, 823 ; ii. 291 Burton v. Anderson (1 Texas, - 93) i. 426 Burton-upon-Trent, Kex. v. (3 M. &S. 537) i. 204 Bury's case (5 Co. 98) i. 113, 116, 333 Bury V. Phillpot (3 Mylne & K. 349) i. 448 Busby V. Busby (2 Swab. & T. 383) ii. 498 Bush V. Brainard (1 Cow. 78) ii. 75 Bussey V. Leavitt (3 Fairf. 378) li. 314 Butler V. Butler (1 Lee, 38) ii. 386, 423 V. Butler (4 Litt. 201) i. 72, 795; ii. 319, 355, 358 — ^— u Butler (Milward, 56) ii. 294 ». Butler (Milward, 629) ii. 457, 460 V. Butler (1 Parsons, 329) i. 717, 718, 722, 730, 732, 735, 773,783, 786, 799; ii. 88, 399, 651 V. Escbleman (18 111. 44) i. 171 — V. Forbes (Ferg. 209) ii. 148, 150 V. Gastrin (Gilb. Ch. 156) i. 51, 109, 314, 316, 318, 377, 387 u. Pennsylvania (10 How. U. S. 402 ; 3 Am. Law Jour. 385) , i. 667, 677 , Kex V. (Russ. & Ry. 61) i. 294, 451 Bntterfield v. Forrester (11 East, 60) ii. 75 Bylandt v. Bylandt (2 Halst. Ch. 28) ii. 508 Bynum V. Bostick (4 Des. 266) i. 154 Byram v. Batcheller (6 R. L 643) i. 627 Byrne v. Byrne (3 Texas, 336) i. 724, 761 ; ii. 651 V. Carew (13 Irish Eq. 1) i. 636 C. C. V. C. (28 Eng. L. & Eq. 603) i. 722, 727, 732, 735, 736 ; ii. 280 Cabell V. Cabell (1 Met. Ky. 31 9) i. 669, 677, 678, 687 Cadogan v. Cadogan (2 Hag. Con. 6) li. 614 Csesar, People v. (1 Parker, 645) ii. 702 Cage V. Acton (1 Ld. Raym. 515) ii. 690, 691, 693 Cain V. Bunkley (35 Missis. 119) i. 582 , State V. (6 Blackf. 422) i. 346 Calder u. Bull (3 Dall. 386) i. 675, 685 Caldwell v. State (17 Conn. 467) ii. 685 Calef, Commonwealth v. (10 Mass. 153) i. 777 Calkins v. Long (22 Barb. 97) i. 650 ; ii. 59 Call, Commonwealth v. (21 Pick. 509) i. 70S Callahan v. Patterson (4 Texas, 61) ii. 369 Calloway v. Bryan (6 Jones, N. C. 569) ii. 690, 700, 704 V. Witherspoon (5 Ire. Eq. 128). i. 131 Calvin's case (7 Co. 1) i. 399 Cambridge v. Lexington (1 Pick. 506) i. 371 ; ii. 701, 702 Camden v. Mulford (2 Dutcher, 49) ii. 133 Cameron v. State (14 Ala. 546) i. 497,825; ii. 285, 286 Camp V. Camp (18 Texas, 528) i. 724, 734, 791 Campbell's case (2 Bland. 209) ii. 231 Campbell v. Campbell (Deane & Swabey, 285) ii. 46 V. Hall (Cowp. 204) i. 399 V. Honyman (8 Scotch Sess. Cas. 1039 ; 5 Wilson & Shaw, 92) . i. 265 [ 627 ] CAR INDEX TO CASES CITED. CHA Campbell v. Sassen (2 Wilson & Shaw, 309) i. 236, 237; ii. 386, 403 V. State (23 Ala. 44) ii. 621 Canady v. George (6 Rich. Eq. 103) i. 38, 454 Canfield v. Squire (2 Root, 300) i. 424 Cannon v. Alsbury (1 A. K. Mar. 76) i. 143, 283, 284, 293 V. Cannon (7 Humph. 410) i. 448 Canovert). Cooper (3 Barb. 115) ii. 528 Canterbury's case (2 Co. 46 a) i. 588 Cantine v. Phillips (5 Harring. Del. 428) i. 553 Cany v. Patton (2 Ashm. 140) i. 554, 557, 573, 578, 619, 620 Carden v. Carden (1 Curt. Ec. 558) ii. 158 CargiU v. Cargill (1 Swab. & T. 235) , i. 810 Carmichael v. State (12 Ohio State, 553) i. 279 Caroon v. Rogers (6 Jones, N. C. 240) i. 343 Carpenter v. Carpenter (Mil- ward, 159) i. 727, 729, 730, 754 ; ii. 308 Can- V. Holliday (5 Ire. Eq. 167) i. 135 , State w. (5 N. H. 367) i. 424 Carre v. Carre (2 Yeates, 207) ii. 256 Carrol v. Blencow (4 Esp. 27) i. 590 Carroll v. Carroll (20 Texas, 731) i. 515, 518, 548 V. Renich (7 Sm. & M. 798) i. 404 Carron v. Martin (2 Dutcher, 594) ii. 133 Carson v. Murray (3 Paige, 483) i. 650 Carter v. Carter (6 Mass. 263) ii. 173, 255 V. Carter (14 Sm. & M. 69) i. 647 Cartwright v. Bate (1 Allen, 514) i. 568, 576, 620 V. Cartwright (19 Eng. L. & Eq. 46) i. 806 ; ii. 719, 741 V. Cartwright (1 Phil- lim. 90) i. 130, 135; ii. 563 [ 628 ] J. 730 i. 440 ; V. Clarke (5 Mason, 70) Cason V. Cason (15 Ga. 405) Cartwright v. Cartwright (18 Tex- as, 626) i. 726, 735, 738 Caruthers v. Caruthers (13 Iowa, 266) Case V. Case (17 Cal. 598) ii. 274 ii. 122 ii. 395, 498 Casteel v. Casteel (8 Blackf. 240) i. 557, 561, 568, 613, 616 Castell Careinion, Rex u. (8 East, 77) i. 514 Castro V. lilies (22 Texas, 479) i. 404, 405 Catherwood v. Caslon (Car. & M. 431 ; 13 Law J. n. s. Exch. 334) i. 498 V. Caslon (13 M. & W. 261 ; 8 Jur. 1076) i. 278, 442, 626 Caton V. Caton (13 Jur. 431) ii. 14, 278, 337, 613, 615, 617, 620, 621, 646 Catterall v. Catterall (1 Robert- son, 580) i. 56, 68, 278, 284 ; ii. 263 V. Sweetman (1 Robert- son, 304) i. 278, 283, 284, 286, 457 Cattison v. Cattison (10 Harris, Pa. 275) i. 799; ii. 659, 660 Caudell v. Shaw (4 T. R. 361) i. 584 Caudrey's case (5 Co. 1) i. 64 CaujoUe v. Ferrie (26 Barb. 177) i. 457, 475, 540 Cayford's case (7 Greeul. 57) i. 442, 497, 532; ii. 628 Chadwick, Reg. v. (12 Jur. 174 ; 11 Q. B. 173) i. 119, 299,316 Chamberlain v. Chamberlain (2 Aikens, 232) li. 256 V. Chandler (3 Ma- son, 242) i. 58 V. Davis (33 N. H. 121) i. 561 Chamberlaine v. Hewson (5 Mod. 70) ii. 732 Chambers v. Chambers (1 Hag. Con. 439) ii. 86, 614, 620, 637 V. Dickson (2 S. & R. 475) i. 443 V. Donaldson (9 East, 471) i. 592, 593 Champlin v. Queen's Proctor (2 Curt. Ec. 415) i. 130 ; ii. 563 V. Champlin (Hoffman, 55) i. 650 CHI INDEX TO CASES CITED. CLA Chancellor v. Milly (9 Dana, 23) i. 540 Chandler v. Chandler (13 Ind. 492) ii. 489 Chanoine ti. Fowler (3 Wend. 173) i. 424 Chapman v. Chapman (2 Conn. 347) i. 640 V. Chapman (13 Ind. 396) ii. 356, 433, 519 V. Commonwealth (5 Whart. 427) ii. 88 V. Cooper (5 Rich. 452) i. 454 V. Gra^ (8 Ga. 341) i. 643 Charles River Bridge v. Warren Bridge (7 Pick. 344) i. 687 Charleton, Reg. v. (Jebb, 267, 1 Crawf. & Dix C. C. 315) i. 530 Charlotte v. Chouteau (21 Misso. 590) i. 154, 418, 425, 426, 427 Charruaud ;;. Charruaud (1 N. Y. Leg. Obs. 134) ii. 707, 717, 719 Chase V. Chase (6 Gray, 157) ii. 121, 123, 128 , Commonwealth v. (6 Cush. 248) i. 470 V. Smith (5 Vt. 556) ii. 528 Cheatham v. Cheatham (10 Misso. 296) i. 722, 726, 826 Cheek, State v. (13 Ire. 114) i. 424 Cheeseman, State v. 2 Southard, 445) ii. 551 Chegaray, People v. (18 Wend. 637) ii. 529, 546, 549, 551 Chenault v. Chenault (5 Sneed, 248) ii. 475, 511 Cheney v. Arnold (16 N. Y. 345) i. 256 Cheriot v. Foussat (3 Binn. 220) ii. 133 Cheseldine v. Brewer (1 Har. & MoH. 152) i. 279, 443 Chesnutt v. Chesnutt (1 Spinks, 196) i. 722, 727, 732, 735; ii. 280 Chettle V. Chettle (3 Phillim. 507) ii. 80, 89 Chevalier v. Whatley (12 La. An. 651) i. 193 Chichester v. Donegal (1 Add. Ec. 5) ii. 126, 158 Chick V. Ramsdale (1 Curt. Ec. 34) i. 110; ii. 232 Childress v. Mann (33 Ala. 206) i. 586 Chiles V. Drake (2 Met. Ky. 146) i. 442 Chirac v. Reinecker (2 Pet. 613) i. 540 Choate v. Choate (3 Mass. 391) ii. 173, 314, 614 Chouteau V. Chevalier (1 Misso. 343) i. 478 V. Donchouquette (1 Misso. 669) i. 582, 648 V. Magenis (28 Misso. 187) i. 678, 686 V. Merry (3 Misso. 254) i. 582, 583, 586, 602 V. Pierre (9 Misso. 3) i. 409, 417 Chrewe's case (Macqueen H. L. Pract. 599) i. 287 Christian v. Christian (13 Scotch Sess. Cas. n. s. 1149) ii. 148, 149 Christianberry v. Christianberry (3 Blackf. 202) ii. 47, 80, 87, 90, 605 Chubb V. Johnson (11 Texas, 469) i. 101 Chuun V. Chunn (Meigs, 131) ii. 450, 457, 474, 475 Church V. Church (3 Mass. 157) ii. 604, 605 V. Hubbart (2 Cranch, 187) i. 409, 418 V. Landers (10 Wend. 79) i. 561 Ciocci V. Ciocci (26 Eng. L. & Eq. 604, 1 Spinks, 121) i. 735 ; ii. 280, 626, 635, 642 Clare v. State (5 Iowa, 509) i. 426 Clark V. Clark (8 Cush. 386) ii. 702 V. Clark (8 N. H. 21) ii. 171, 173, 175, 198 V. Clark (10 N. H. 380) i. 24. 668, 698 ; ii. 233, 234 V. Clark (6 Watts & S. 85) ii. 202, 225, 351, 437,438, 499, 706, 730, 731, 737, 739 V. Clark (Wright, 225) ii. 472, 532, 678 V. Field (13 Vt. 460) i. 166, 205, 215, 233, 245, 249 ; ii. 291 V. Trail (1 Met. Ky. 35) ii. 568 Clarke v. Douce (2 Phillim. 335) ii. 281 V. Hankin (2 Phillim. 328) i- 294 [629] CLU INDEX TO CASES CITED. COL Clarke i>. Lott (11 El. 105) ii. 719, 754 V. McCreary (12 Sm. & M. 347) ■ i. 675; ii. 714 Clayton v. Adams (6 T. R. 604) i. 591 V. Clayton (1 Ashm. 52) ii. 328 State V. (11 Eich. 581) i. 83 V. Wardell (4 Comst. 230; 5 Barb. 214) i. 279, 280, 440, 441, 442, 443, 446, 513 ; ii. 272 Cleaver v. "Woodbridge (2 Phillim. 362) ii. 232 Clegg p. Leery (3 Camp. 166) i. 428 Clement v. Beard (5 Mod. 448) i. 316 V. Mattison (3 Kich. 93) i. 124, 131, 136, 568, 570, 786; ii. 307 V. Rhodes (3 Add. Ec. 37) ii. 309 Clements, Commonwealth v. (6 Binn. 206) i. 156 Clendenning v. Clendenning (15 Mart. La. 438) i. 302 Clews V. Bathurst (2 Stra. 960) ii. 754, 759 Clifford V. Laton (3 Car. & P. 15, 1 Moodjr & M. 101) i. 554, 620 Clifton V. Davis (1 Parsons, 31) ■ i. 131 Clinton V. York (26 Maine, 167) ii. 529 Cloborn's case (Hetley, 149) i. 748 Cloncurry's case, (Cruise on Dignities, 276 ; Wadd. Dig. 238) i. 392 Clout V. Clout (2 Swab. & T. 391) ii. 536 Clover, State v. (1 Harrison, 419) ii. 529, 549 Clowes V. Clowes (3 Curt. Ee. 185) i. 167, 204; ii. 316 V. Clowes (9 Jur. 356 ; 4 Notes Cas. 12) i. 801 ; ii. 5, 9, 88, 262 Clutch V. Clutch (Saxton, 474) i. 750; ii. 228, 241, 245, 249, 605 Clute V. Fitch (25 Barb. 428) i. 173 r [630] Clutton V. Cherry (2 Phillim. 373) ii. 281 Coale V. Harrington (7 Har. & J. 147) i. 469 Cobbe V. Garston (Milward, 529) ii. 241, 243, 277, 294 Coble V. Coble (2 Jones Eq. 392) i. 826 Cochran v. Van Surlay {20 Wend. 365) i. 667, 681 Cochrane, re (8 Dowl. P. C. 630) i. 754, 755 Cock V. Eevie (6 Ves. 283) ii. 506 Cookrill V. Calhoun (1 Nott & McC. 285) i. 538 Cocksedge v. Coeksedge (1 Rob- ertson, 90) ii. 80, 86, 623, 630 Codd V. Codd (1 Bland, 101) ii. 360 V. Codd (2 Johns. Ch. 141) ii. 352, 530, 532 V. Codd (2 Johns. Ch. 224) ii. 606 Cofer V. Thurmond (1 Kelly, 538) i. 452 Coffin V. Dunham (8 Cush. 404) ii. 391, 397, 419 V. Jones (13 Pick. 445) i1i 723 Coglar V. Coglar (1 Ves. Jun. 94) ii. 507 Cogswell V. Tibbetts (3 N. H. 41) i. 627, 628 Cole U.Cole (5 Sneed, 57) i. 124, 127, 141 , Ex parte (28 Ala. 50) i. 595 Coleman v. Carr (Walk. Missis. 258) i. 677 Coleman's case (6 N. Y. City Hall Reporter, 3) i. 150, 293, 494, 499 Coles V. Coles (2 Md. Ch. 341) i. 718, 743 ; ii. 228, 375, 387, 398, 406, 425, 461 Collet's case (2 Mod. 314) ii. 240 CoUett V. CoUett (1 Curt. Ec. 678) i. 735; ii. 632 V. CoUett (3 Curt. Ec. 726) ii. 128, 157, 158, 176 V. CoUett (8 Monthly Law Mag. 158) ii. 60 V. CoUett (Wadd. Dig. 38) ii. 632 ColUer V. CoUier (1 Dev. Eq. 352) i. 24 ; ii. 72, 227 V. Harkness (26 Ga. 362) i. 209 coo INDEX TO CASES CITED. COX Collins V. Blantern (2 Wils. 341) ii. 75 . V. Collins (29 Ga. 517) i. 726; ii. 420,461 V. Collins (2 Paige, 9) ii. 385, 394, 461, 530 V. Mitchell (5 Barring. Del. 369) i. 573 . V. Srunker (1 U. S. Mo. Law Mag. 114) ii. 528 ». State (14 Ala. 608 i. 825 Colman v. Anderson (10 Mass. 105) " ii. 314 Colmer ». Colmer (Mosely, 118) ii. 353, 358 Colvin V. Colvin (2 Paige, 385) ii. 751, 752 Comly 0. Strader (Smith, Ind. 75; 1 Ind. 134) ii. 710 Comparet v. Jernegan (5 Blackf. 375) i. 424, 426 Compton V. Bearcroft (Bui. N. P. 114 ; 2 Hag. Con. 430) i. 355, 356 V. Callwin (1 H. Bl. 334) i. 591 Conant v. Conant (10 Cal. 249) ii. 87, 88, 90, 227, 255 Conger v. Conger (2 Beasley, 286) i. 784 Conn V. Conn (Wright, 563) ii. 651 Connelly v. Connelly (16 Law Times R. 45; 7 Notes Cas. 444 ; 2 Robertson, 201 ; 2 Eng. L. &Eq. 570) i. 367, 806 Conran v. Lowe (1 Lee, 630) i. 446, 612 Cbnsequa v. Willrings (Pet. C. C. 225) i. 426 Converse v. Converse (9 Rich. Eq. 535) ii. 435 Conway v. Beazley (3 Hag. Ec. 639) i. 372, 478; ii. 141, 144, 148, 188, 754, 760, 762 Conyers v. Eitson (3 Hag. Ec. 556) ii. 739 Cood V. Cood (1 Curt. Ec. 755) i. 476, 478, 479, 531, 533; ii. 106, 266, 269, 741 Cook V. Cook (1 Barb. Ch. 639) ii. 492, 530, 531, 532, 533 V. Cook (2 Beasley, 263) i. 773, 783; ii. 673 , People V. (4 Selden, 67) i. 209 V. Wilson (Litt. Sel. Cas. 437) i. 409 Cooke V. Clay worth (18 Ves. 12) 1. 131 V. Cooke (2 Phillim. 40) ii. 375, 406, 425, 445, 446, 449, 451, 455, 457, 459, 460, 462,463,467,474 V. Cooke (2 Swab. & T. 50) ii. 312 Cooledge v. Cooledge (1 Barb. Ch. 77) ii. 492 Coons p. Renick (11 Texas, 134) i. 470 Cooper V. Cooper (10 La. 249) 1. 748 ; ii. 38, 620 V. Cooper (Mil ward, 373) ii. 128, 158 — '- V. Cooper (7 Ohio, 2d pt. 238) ii. 93, 134, 161, 262, 754 V. Galbraith (3 Wash. C. C. 546) ii. 121, 122 V. Lloyd (6 C. B. N. 8. 519) i. 574, 624 V. Martin (4 East, 76, 84) ii. 528 Cope V. Burt (1 Hag. Con. 434) i. 292, 294 V. Cope (5 Car. & P. 604) i. 448 Copsey V. McKinney (30 Barb. 47) i. 616 Corbett V. Poelnitz (1 T. R. 5) i. 691 Corbit V. Smith (7 Iowa, 60) ii. 563 Cornelius v. Cornelius (31 Ala. 479) ii. 250, 367 Cornell v. Vanartsdalen (4 Barr, 364) ii. 723 Cornwall v. Richardson (Ryan & Moody N. P. 305) ii. 644 Cornwell o. State (Mart. & Yerg. 147) ,i. 131 Gossan v. Gossan (Wright, 147) i. 787 Gotten V. Rutledge (23 Ala. 110) i. 344 Goulson V. Coulson (5 Wis. 79) ii. 572 Goverdill v. Coverdill (3 Harring. Del. 13) i. 31 ; ii. 227 Cowls V. Cowls (3 Oilman, 435) ii. 528, 529, 556 Cox V. Combs (8 B. Monr. 231) i. Ill, 304; ii. 701 V. Cox (3 Add. Ec. 276) ii. 429 V. Cox (2 Swab. & T. 306) ii. 32 V. Hoffman (4 Dev. & Bat. 180) i. 557, 562 V. Morrow (14 Ark. 603) i. 412 [631] CDL INDEX TO CASES CITED. DAN Cox V. Robinson (2 Stew. & P. 91) j. 424 Crabb v. Atwood (10 Ind. 331) ii. 314 Craddock v. Cabiness (1 Swan, Tenn. 474) i. 193 Craig V. Brown (Pet. C. C. 352) i.424 Oram v. Burnham (5 Greenl. 213) i. 279, 506, 513 V. Cram (6 N. H. 87) i. 819 Crane v. Meginnis (1 Gill & J. 463) i. 14, 685, 686, 687, 693; ii. 170, 355, 359, 376, 381 Craton, State v. (6 Ire. 164) i. 755 Creswell v. Cosms 2 Phillim. 281) i. 294 Crewe v. Crewe (3 Hag. Ec. 123) ii. 17, 21, 23, 26, 28, 29,41, 247, 253, 285, 335 Croft V. Croft (3 Hag. Ec. 310) ii. 14, 334, 335, 604, 617, 621, 625, 642 Cropsey v. McKinney (30 Barb. 47) i. 114, 613, 617, 650; ii. 298 V. Ogden (1 Kernan, 228) ii. 703 Crosby v. Huston (1 Texas, 203) i. 412, 527 Cross V. Cross (3 Paige, 139) ii. 231 243, 559 Grossman v. Crossman (33 Ala. 486) ii. 344, 672 Crostwaight v. Hutchinson (2 Bibb. 407) i. 645 Crouch V. Hall (15 111. 263) i. 413 Crow V. Crow (23 Ala. 583) i. 783, 786; ii. 675 Crowley, State v. (13 Ala. 172) ii. 625, 642 Crozier v. Bryant (4 Bibb. 174) i. 413 V. Gano (1 Bibb. 257) i. 443 Crugeru. Douglas (4 Edw. Ch. 433) i. 31, 772 V. Heyward (2 Des. 94) ii. 528 Crump V. Morgan (3 Ire. Eq. 91) i. 71, 124, 125, 136, 139; ii. 298, 307 Cudlipp V. Cudlipp (1 Swab. & T. 229) ii. 680 CuUen, Keg. v. (9 Car. & P. 681) i. 298 CuUins, Commonwealth v. (1 Mass. 116) i. 601 Culver V. Culver (8 B. Monr. 128) ii. 489 [632] Cunningham v. Burdell (4 Bradf. 343) i. 279, 539 V. Cunningham (2 Ind. 233) ii. 706, 709 V. Irwin (7 S. & R. 247) i. 568, 786 ; ii. 369, 401 Cunninghams v. Cunninghams (2 Dow, 482) i. 240, 437, 438, 463, 506, 510 Currie v. TurnbuU (Hume, 273 ; 1 Eras. Dom. Rel. 1^4) i. 249 Curtis V. Curtis (5 E. F. Moore, 252; 10 Jur. 165) ■• ii. 641 V. Curtis (5 Gray, 535) ii. 527, 549 V. Curtis (1 Swab. & T. 75) ii. 536 V. Curtis (1 Swab. & T. 192) i. 717; ii. 52, 58,526 V. Hobart (41 Maine, 230) i. 813 Cusack V. White (2 Mill, 279) i. 38, 583 D. Dacosta v. Villa Real (2 Stra. 961) ii. 754, 759 Dacy V. N. Y. Chemical Manuf. Co. (2 Hall, 550) i. 657 Daggett V. Daggett (5 Paige, 509) ii. 235, 435 D'Aguilar v. D'Aguilar (1 Hag. Ec. 773) i. 713, 717, 719^ 727, 730, 737, 738, 741, 748. 758, 804 ; ii. 33, 43, 44, 46, 49, 52, 55, 56, 58, 103, 104, 263, 280, 387, 394, 610 Daiger v. Daiger (2 Md. Ch. 335) i. 718, 722, 764 ; ii. 387, 398, 406 Dailey v. Dailey (Wright, 514) ii. 379, 533, 613, 620 Dakins v. Seaman (9 M. & W. 777) i. 51 Dalrymple v. Dalrymple (2 Hag. Con. 54) i. 53, 55, 166, 218, 220, 228, 234, 235, 240, 250, 251, 252, 253,254,269, 274, 361,367, 390; ii. 291, 309 Dalton V. Bernardston (9 Mass. 201) ii. 717 Damon's case (6 Greenl. 148) i. 279, 287, 463, 479, 495 Dance v. Dance (1 Hag.Ec. 794) ii. 46, 49 DAY INDEX TO CASES CITED. DEN Danforth v. Reynolds (1 Vt. 259) i. 427 D'Arcy v. Ketchum (11 How. U. S. 165) ii. 114 Darden v. Joyner (9 Ire. 339) ii. 440 Dartmouth College v. Woodward, f4| Wheat. 518 i. 665;ii. 199 D'Arusmot v. D'Arusmot (14 Law Eeporter, 311; 8 West. Law Jour. 548) ii. 354, 381, 385, 406, 409, 461, 516 Dasent v. Dasent (1 Robertson, 800) ii. 128, 158 David V. David (27 Ala. 222) i. 741, 767; ii. 658 Davidson v. Davidson (Deane & Swabey, 132) ii. 613, 619 V. Moss (5 How. Missis. 673) i. 209 Davies, in the goods of (2 Curt. Ec. 628) ii. 739 Davies v. Davies (2 Swab. & T. 437) ii. 498 V. Gataere (8 Car. & P. 578) i. 465 Davis V. Black (1 Gale & D. 432) i. 347 V. Curry (2 Bibb. 238) i. 418, 425 V. Davis (19 111. 334) ii. 53, 334 V. Davis, (37 N. H. 191) i. 819; li. 329 V. Davis (Poynter Mar. & Div. 261) ii. 394 V. Dawes (4 Watts & S. 401) i. 677 V. Newton (6 Met. 537) ii. 450, 734 w. Smith (5 Ga. 274) ii. 133 V. Wood (1 Wheat. 6) i. 540 Davol V. Davol (13 Mass. 264) ii. 376 V. Howland (14 Mass. 219) ii. 709 Dawes u. Howard (4 Mass. 97) ii. 528 Dawson v. Dawson (2 Phillim. 40) ii. 467 V. Dawson (7 Ves. 172) ii. 436, 506 Day V. Day (3 Green Ch. 444) 11. 614 — V. Everett (7 Mass. 145) ii. 528 — V. Spread (Jebb & Bourke, 163) i. 626 Days V. Jarvis (2 Hag. Con. 172) i. 294 Dean v. Dean (5 Pick. 428) ii. 524 V. Richmond (5 Pick. 461) ii. 376, 523, 729, 730, 732, 736, 737 Deane v. Aveling (1 Robertson, 279) I. 55, 322, 326, 327, 328; ii. 585, 597, 598 V. Deane (12 Jur. 63) ii. 30, 176,245 De Blaquiere v. De Blaqulere (3 Hag. Ec. 322) ii. 401, 427, 429, 434, 435, 451, 457 Decamp v. Decamp (1 Green. Ch. 294) ii. 327, 367 De Casinova, State v. (1 Texas, 401) ii. 123 Deck V. Deck (2 Swab. & T. 90) ii. 131 Dedham v. Natick (16 Mass. 135) ii. 527, 528 Deerfield v. Arms (20 Pick. 480) i. 289 De Gaillon v. L'Aigle (1 Bos. & P. 357) i. 592 Dejarnet u. Dejarnet (5 Dana, 499) ii. 93, 457, 512 Dejol V. Johnson (12 La. An. 853) i. 547 De La Hay v. De La Hay (21 111. 252) i. 761 De Lane v. Moore (14 How. U. S. 253) i. 405 Delano 17. Jopling (1 Litt. 117) i. 417 Delaval, Rex v. (3 Bur. 1434) ii. 529 DeLeon v. Owen (3 Texas, 153) i. 83 Delliber v. Delliber (9 Conn. 233) ii. 38, 39, 45, 49, 233 De Manneville v. De Manneville (10 Ves. 52) ii. 529, 548 , Rex V. (5 East, 221) ii. 529, 546 Deming v. Williams (26 Conn. 226) i. 642 Dempster v. Dempster (2 Swab. & T. 438) ii. 44, 65 Den V. Moore (2 Southard, 470) ii. 75 Dennis v. Clark (2 Cush. 347) ii. 528 Denniss v. Denniss (3 Hag. Ec. 348) i. 804 Denny v. Ashwell (1 Stra. 42) i. 316 Dennys v. Sargeant (Car. & P. 419) i. 554 Dent, Reg. v. (1 Car. & K. 97) i. 530 Dent, Rex v. (1 Car. &. K. 97) i. 529 Denton v. Denton (1 Johns. Ch. 364) ii. 461, 508 [633] DOB INDEX TO CASES CITED. DRO Denton v. English (3 Brev. 147) i. 38 Depas V. Mayo (11 Misso. 314) i. 404 De Rose v. De Rose (Hopkins, 100) ii. 365 Derry v. Mazarine (1 Ld. Raym. 147) i. 590 Descelles v. Kadmus (8 Iowa, 51) i. 568 De Sobry v. De Laistre, 2 Har. &J. 191) i. 418 Devaismes v. Devaismes (3 Code Reporter, 124; 3 Am. Law Journal, N. S. 279) i. 764 ; ii. 457 Derail v. Devall (4 Des. 79) i. 43 ; ii. 508, 635 Devanbagh v. Devanbagb (5 Paige, 554) i. 71, 74, 331, 332, 333, 337 ; ii. 241, 256, 591, 592, 594, 599 V. Devanbagh (6 Paige, 175) i. 332 Dew V. Clark (1 Hag. Ec.311) ii. 739 Dewey v. Humphrey (5 Pick. 187) i. 84 De Wurtz v. Hendricks (2 Bing. 314) ii. 75 Dial V. Neuffer (3 Rich. 78) i. 581 Dickens v. Dickens (2 Swab. & T. 103) ii. 414 Dickenson ». Blisset (1 Dick. 268) i. 133 — V. Ma-vie (2 Dick. 582) ii. 385 Diekermau v. Graves (6 Cush. 308) ii. 723, 724 Dickinson v. Dickinson (3 Murph. 327) i. 24, 72, 698 ; ii. 233 Dickson v. Dickson (1 Yerg. 110) i. 5, 9, 374; ii. 234, 700, 701, 702, 754 Diddear v. Faucit (3 Phillim. 580) i. 457 Dillinger's Appeal (11 Casey, 357) i. 653 Dillon V. Dillon (3 Curt. Ec. 86) ii. 8, 17, 21, 39, 40, 42, 43, 80, 87, 280, 331, 337, 340, 617, 621, 637, 641 Ditson V. Ditson (4 R. I. 87) i. 10 ; ii. 114, 144, 161, 162, 213, 314 Dixon V. Hurrell (8 Car. & P. 717) i. 578; ii. 375 V. Thatcher (14 Ark. 141) i. 424 Dobbs V. Dobbs (3 Edw. Ch. 377) ii. 338 Dobbyu v. Dobbyn (Poynter Mar. & Div. 233) ii. 40 [634] Dobbyn, Rex v. (4 Ad. & E. 644) ii. 546 Dobson V. Butler (17 Misso. 87) ii. 705 Dodge V. Dodge (7 Paige, 589) ii. 338 Doeu. Brown (5 Blackf. 309) ii. 712 V. Eslava (11 Ala. 1028) i. 417 V. Price (1 Man. & R. 683) i. 294 V. Vardill (5 B. & C. 438 ; 6 Bing. N. C. 385) i. 367, 548 Dolphin V. Robins (7 H. L. Cas. 390) ii. 144, 205 Don V. Don (10 Scotch Sess. Cas. N. s. 1046) ii. 642 Donald «. Hewitt (33 Ala. 534) i. 414, 430 Donegal v. Donegal (3 Phillim. 586) ii. 158, 309 Donellan v. Donellan (2 Hag.Ec. Supp. 144) ii. 253 Donnelly v. Donnelly (8 B. Monr. 113) i. 442, 443, 508,. 510 Dormer v. Williams (1 Curt. Ec. 870) i. 292, 495 Dorsey v. Dorsey (7 Watts, 349) ii. 128, 159, 173, 175, 197, 198, 233, 754 V. Goodenow (Wright, 120) ii. 391, 398, 411 V. Hardesty (9 Misso. 157) i. 402 Dossu. Campbell, (19 Ala. 590) i. 405 Dougherty v. Dougherty (4 Halst. Ch. 540) ii. 407 V. Snyder (15 S. & R. 84) 1. 405, 427, 530 Douglas V. Brown (2 Dow & C. 171) i. 423 Douglass V. Sanderson (2 Dall. 116) i. 540 Dow V. Dow (38 N. H. 188) ii. 553 Downing v. Rngar, 21 Wend. 178) i. 624 Doyle w.. Doyle (26 Misso. 545) i. 746, 761, 768, 801, 802; ii. 356, 653 Doyly's ceise (McQueen H. L. Pract. 654) i. 483 Drake v. Glover (30 Ala. 382) i. 414 Drew V. Canady (1 Mass. 158) i. 289 V. Clark (2 Add. Ec. 102) ii. 640 Droney v. Archer (2 Phillim. 327) i. 293, 294 DUR INDEX TO CASES CITED. EDW Drummond v. Drummond (2 Swab. & T. 269) ii. 32, 82 Duberley v. Gunning (4 T. R, 651) ii. 7 Dufferin Peerage Case (2 H. L. Cas. 47) i. 478 Duffy V. Insurance Co. (8 Watts &S. 413) i. 653 Duins V. Donovan (8 Has. Ec. 301) 1. 294, 299 Duke V. Fulmer (5 Rich. Eg. 121) li. 198 Dula V. State, 8 Yerg. 511) i. 677 Dumaresly v. Fishly (3 A. K. Mar. 368) i. 5, 218, 228, 253, 259, 279, 282, 283, 356 Dunbar v. Dunbar (Wright, 286) ii. 94 Dnnbarton v. Franklin (19 N. H. 257) i. 279, 538 Duncan v. Duncan (12 Misso. 157) ii. 87 : — V. Duncan (2 Monthly Law Mag. 612) i. 523, 531 ; ii. 269 V. Duncan (10 Ohio State, 181) i. 258 V. Duncan (19 Ves. 394) ii. 353 Dunham v. Dunham (6 Law Re- porter, 139) ii. 616, 631 Dnnlap v. Dunlap (Wright, 210) ii. 604 V. Dunlap (Wright, 559) ii. 285 Dunn V. Dunn (4 Paige, 425) i. 777 ;ii. 157, 260, 751 w. Dunn (2 Phillim. 403 ; 3 Phillim. 6) ii. 22, 26, 278 , Reg. V. (12 Ad. & E. 599) ii. 60 )unnock v. Dunnock (3 Md. Ch. 140) ii. 320, 355, 450 )untze V. Levett (Ferg. 68, 385) i. 6, 7; ii. 144, 146, 147, 148, 150, 171, 181 )upont V. Dupont (10 Iowa, 112) ii. 92, 480 V. Johnson (1 Bailey Ch. 274) ii. 528 )upre V. Boulard (10 La. An. 411) i. 375 )urand v. Her Husband (4 Mart. La. 174) i. 767 >urant». Durant (1 Add. Eo. 114) ii. 386 V. Durant (2 Add. Ec. 267) ii. 256 Durant v. Durant (1 Hag. Ec. 628) ii. 404, 425, 447, 457, 467, 494 V. Durant (1 Hag. Ec. 733) i. 64, 722, 726 ; ii. 22, 23, 33, 38, 44, 49, 54, 55, 56, 58, 70, 337, 339, 610 V. Titley (7 Price, 577) i. 637 Durham v. Lewiston (4 Greenl. 140) i. 675 Durie V. Norris (1 U. S. Mo. Law Mag. 49) i. 140 Du Terreaux v. Du Terreaux (1 Swab. & T. 555) i. 797 Dwelly V. Dwelly (46 Maine, 377) ii. 283, 421, 497, 498 Dyer v. Dyer (5 N. H. 271) i. 780, 822 V. East (1 Vent. 42 ; 1 Mod. 9) i. 554 V. Smith (12 Conn. 384) i. 427, 530 V. Smith (12 Conn. 429) i. 428 Dysart v. Dysart (5 Curt. Ec. 543) ii. 281 V. Dysart (11 Jur. 490) i. 732 V. Dysart (1 Robertson, 106) i. 719, 726, 727, 734, 735, 741, 744, 767, 768, 804; ii. 38, 52, 61, 316, 645, 659 V. Dysart (1 Robertson, 470) i. 717, 732, 758; ii. 103 V. Dysart (1 Robertson, 543) ii. 728 E. Ealer v. Flomerfelt (1 Wheat. Dig. ed. of 1843, 828 ; 1 Ashm. 53) ii. 724 Earle v. Earle (9 Texas, 630) i. 629 Early v. Doe (16 How. U. S. 610) ii. 314 Earp V. Earp (1 Jones Eq. 239) ii. 72, 337 Eaton V. Bright (2 Lee, 85) i. 437, 443 Eden, Rex v. (Loflft, 72) ii. 75 Edmeston v. Cochrane (1 Eras. Dom. Rel. 153) i. 249 Edmonds v. Her Husband (4 La. An. 489) ii. 328 Edmonstone v. Lockhart (Ferg. 168) , li. 191 Edwards v. Crock (4 Esp. 39) ii. 621 [635] EME INDEX TO CASES CITED. ETR Edwards v. Edwards (30 Ala. 394) ii. 344 V. Edwards (Wright, 308) ii. 409 V. Green (9 La. An. 317) i. 801; ii. 172 V. Pope (3 Scam. 465) i. 676, 683 — , Rex V. (Russ. & Ry. 283) i. 292 Eitel V. Walter (2 Bradf. 287) ii. 528 EUah y, Leigh (5 T. R. 679) i. 591 ; ii. 736 Eldred v. Eldred (2 Curt. Ec. 376) ii. 55, 80, 367, 623 Edrington v. Mayfield (5 Texas, 363) i. 405 Eliot V. Eliot (1 Hag. Con. 299) ii. 626 EUenthorp v. Myers (2 Add. Ec. 158) i. 739 ; ii. 640 EUerton v. Gastrin (1 Comyns, 318) i. 316 Elliott V. Elliott (1 Dev. & Bat. Eq. 57) i. 651 V. Gurr (2 Phillim. 16) i. 105, 111, 112, 115, 116, 153, 339 ; ii. 739 V. McClelland (17 Ala. 206) i. 413 V. Peirsol (1 Pet. 328) i. 540 Ellis V. Ellis (11 Mass. 92) i. 473 ; ii. 628 V. Mathews (19 Texas, 390) i. 194 «. White (25 Ala. 640) i. 413 V. Wiley (17 Texas, 134) i. 424 Elmes V. Elmes (9 Barr. 166) i. 722 Elmore v. Elmore (10 Gal. 224) ii. 519 Elsam V. Faucett (2 Esp. 562) ii. 621 Else V. Else (Milw. 146) i. 457, 488, 526 Elwell V. Elwell (32 Maine, 337) i. 102, 834 Elwesu. Elwes (1 Hag. Con. 269) ii. 43, 253, 285, 338, 339, 629, 637 Elworthy v. Bird (2 Sim. & S. 372) i. 636 Elyot's case (Cart. 53) i. 133 Emerson v. White (9 Fost. N. H. 482) i. 540 Emery v. Berry (8 Post. N. H. 473) i. 424, 426 [636] Emery v. Emery (1 T. & J. 501 ; 6 Price, 336) i. 568, 570, 572 V. Gowen (4 Greenl. 33) ii. 628 V. Neighbour (2 Halst. 142) i. 649 Emmett v. Norton (8 Car. & P. 506) i. 566, 557, 570 Emmons v. Emmons (Walk. Mich. 532) ii. 30, 333, 338, 344, 642 English V. English (6 Grant, U. C. Ch. 580) i. 786 Ennis v. Smith (14 How. U. S. 400) i. 422, 426, 427, 429, 478 Errisman v. Errisman (25 111. 136) ii. 367, 502 Erwin v. Erwin (4 Jones Eq. 82) ii. 684 Eshbach v. Eshbach (11 Harris, Pa. 343) i. 718, 729, 779, 799 Essex V. Essex (2 Howell St. Tr. 786) i. 333, 335; ii. 597 Ethermgton v. Parrot (2 Ld. Raym. 1006; 1 Salk. 118) i. 654, 565, 556 Etna, The (Ware, 462) ii. 528 Evans v. Evans (6 B. Monr. 278) ii. 260, 751 V. Evans (1 Hag. Con. 35) i. 29, 167, 717, 720, 722, 726, 729, 730, 732, 735, 738, 741, 743, 758, 759, 765, 771; ii. 231, 234, 275, 343, 645 V. Evans .(7 Jur. 1046) ii. 38, 58 V. Evans (1 Robertson, 166) ii. 281, 286, 637 V. Evans (1 Swab. & T. 328) ii. 262 V. Fisher (6 Gilman, 669) i. 570^578 Everinghamt). Messroom (2 Brev. 461) i. 540 Everton v. Everton (5 Jones, N. C. 202) i. 717, 736, 743 Ewell V. State (6 Yerg. 364) i. 540 Ewen's case (6 N. Y. City Hall Rec. 65) i. 524 Ewing V. Ewing (2 Philad. 371) ii. 345 V. Savery (3 Bibb. 236) i. 540 V. Wheatley (2 Hag. Con. 175) i. 167 Eyre v. Shaftsbury (2 P. Wms. 103) ii. 527 FER INDEX TO CASES CITED. FLE Fairotild v. Adams (4 Law Re- porter, N. 8. 278) ii. 640 Fales ». Mayberry (2 Gallis. 560) _ ii. 75 Faremouth v. Watson (1 Phillim. 355) ii. 298, 309 Farnsworth v. Richardson (35 Maine, 267) ii. 549 Farr v. Farr (34 Missis. 597) ii. 604, 605 Farrer v. Granard (1 New Rep. 80) • i. 591 Farwell v. Farwell (31 Maine, 591) ii. 311, 398, 421,496 Faulder u. Silk (3 Camp. 126) ii. 566 Faulk V. Faulk (23 Texas, 653) ii. 546, 549 Faussett V. Faussett (13 Jur. 688) ii. 642 Feaubert v. Turst (Free. Ch. 207) i. 529 Feigley v. Feigley (7 Md. 537) ii. 237, 319, 501 Feilding's case (14 Howell St. Tr. 1327) i. 496 Felker v. Emerson (16 Vt. 653) i. 563 Fellowes v. Stewart (2 Phillim. 238) i. 292 Fellows V. Fellows (31 Maine, 342) i. 786 V. Fellows (8 N. H. 160) i. 819, 824; ii. 104, 141, 144, 173, 342, 343, 344, 651 Fenner v. Lewis (lO Johns. 38) i. 613, 650; ii. 401 Fenton u. HoUoway (1 Stark. 1^6) i. 131 V. Livingstone (3 Macq. Scotch Ap. Cas. 497) i. 548 V. Reed (4 Johns. 52) i. 279, 299, 442, 508 Ferguson v. Clifford (37 N. H. 86) i. 418, 430, 475 V. Ferguson (1 Barb. Ch. 604) ii. 258, 634 V. Ferguson (3 Sandf. 307) ii. 258, 614, 620 • V. Kays (1 Zab. 431) i. 84 Ferlatu. Gojon (Hopkins, 478) i. 105, 166, 218, 219; ii. 291 Ferrers v. Ferrers (1 Hag. Con. 130) ii. 23, 33, 56, 103 Ferrers v. Ferrers (1 Hag. Ec. 781) ii. 47 Ferrie v. Public Administrator (4 Bradf. 28) i. 283, 295, 506, 608 Ferrier v. Ferrier (4 Edw. Ch. 296) ii. 319, 663 Ferris v. Ferris (8 Conn. 166) i. 178, 332; li. 575 Fetts V Foster (2 Hayw. 102) i. 442 Fickle V. Fickle (5 Yerg. 203) ii. 128, 210 Field V. Lucas (21 Ga. 447) ii. 568 Field's Marriage Annulling Bill, (2 H. L. Cas. 48) i. 196 Fielder v. Smith (2 Hag. Con. 193) i. 293, 294 Finch V. Finch (22 Conn. 411) ii. 557 V. Finch (14 Ga. 362) i. 76 Findley v. Cooley (1 Blackf. 262) i. 173 Fink' V. Hake (6 Watts, 131) ii. 714, 715 Finlay v. Finlay (31 Law J. Mat. Cas. 149) ;. 475 V. Finlay (Mil ward, 575) ii. 457, 460 Finley v. Finley (9 Dana, 62) i. 718, 722,748; ii. 365 Fischli V. Fischli (1 Blackf. 360) ii. 255, 356, 376, 381, 516 Fisher v. Boody (1 Curt. C. C. 206) i. 173 V. Filbert (6 Barr, 61) i. 653 V. Fisher (2 Swab. & T. 410) ii. 477 Fishli V. Fishli (2 Litt. 337) i. 779, 786, 810; ii. 128, 176, 237, 381, 398, 457, 472, 604, 512, 516, 678 Fitler V. Fitler (9 Casey, 50) ii. 557 Fitts V. Fitts (14 Texas, 443) ii. 514 Fitzgerald v. Fitzgerald (1 Lee, 649) ii. 387 Fitzmaurice v. Fitzmaurice (1 Lee, 16) , i. 250 Flaherty, Reg. v. (2 Car. & K. 782) i. 497, 500 Fleming v. Fleming (4 Bing. 266, 12 J. B.Moore, 500) 1.434,437, 438, 443 Fletcher v. Henley (13 La. An. 150) ii. 497, 498 V. Morey (2 Story, 555) i. 70 [637] FOR INDEX TO CASES CITED. FEE Fleytas v. Pigneguy (9 La. 419) i. 741, 744, 76T Flint V. Jones (5 Wis. 424) ii. 572 Flintan, Rex v. (1 B. & Ad. 227) i. 574, 800 Florentine v. Wilson (Hill & Denio, 303) i. 650 Flower V. Adam (2 Taunt. 314) ii. 75 Flowers v. Foreman (23 How. U. S. 132) ii. 133, 159 V. Hanalson (6 Yerg. 494) i. 540 Floyd V. Black (Litt. Sel. Cas. 11) ii. 311 Fluck V. Tollemache (1 Car. & P. 5) ii. 528 Foden v. Finney (4 Russ. 428) ii. 353 Foljambe's case (3 Salk. 137) i. 661 FoUiott V. Ogden (1 H. Bl. 123) ii. 701 Foote V. Foote (22 111. 425) ii. 429, 445, 466, 553 V. Hayne (1 Car. & P. 545) i. 170 Forbes v. Strathmore (Ferg. Consist. Law Rep. 113) i. 260 Ford V. Ford (4 Ala. 142) i. 442 V. Ford (2 Halst. Ch. 642) ii. 682 V. Ford (7 Hmnph. 92) i. 640 V. Monroe (20 Wend. 210) ii. 528 Fore, State v. (1 te. 378) i. 308 Forney v. Hallacher (8 S. & R. 159) i. 497, 498 Fornshill v. Murray (1 Bland. 479) i. 6, 105, 124, 355, 438, 441, 442,497,498, 623; ii. 291, 355 Forrest v. Forrest (6 Bosw. 672) ii. 421, 461, 478, 492, 497 V. Forrest (6 Duer, 102) ii. 255, 495, 707 V. Forrest (25 N. Y. 501) ii. 425,467,472 Forrister v. Watson (6 Scotch Sess. Cas. n. s. 1358) ii. 148, 149 Forster v. Forster (1 Hag. Con. 144) i. 777, 778 ; ii. 6, 79, 80, 85, 88, 89, 341, 346, 623, 625, 637 Forsyth v. Kreakbaum (7 T. B. Monr. 93) ii. 527 [638] Foster v. Hall (2 J. J. Mar. 546) ii. 298 ». Means (1 Speer Eo. 569) i. 124, 125, 1277136 V. Taylor (2 Tenn. 191) i. 414, 424 Fouke V. Fleming (13 Md. 392) i. 412 Foulkes V, Foulkes (Poynter Mar. & Div. 256) ii. 429, 449, 467 Fowler V. McCartney (27 Missis. 509) ii. 570 V. Smith (2 Cal. 39) i. 399 Fox V. Dawson's Curator (8 Mart. La. 94) ii. 696 V. Lambson (3 Halst. 275) i. 469 Foxcroft's case (1 Rol. Ab. 359) i. 152 Foy V. Foy (13 Ire. 90) i. 797, 825; ii. 88, 90, 278, 615 Frakes v. Brown (2 Blackf. 295) ii. 450, 501, 502 France v. Andrews (16 Q. B. 756) i. 468 Frankfort v. Frankfort (3 Curt. Ec. 715) ii. 260, 425 V. Frankfort (4 Notes Cas. 282) ii. 374, 448, 449 Franklin v. Franklin (7 Jur. 135) ii. 58 Franks, Ex parte (7 Bing. 762) i. 590 Frarell v. Frarell (Wright, 455) ii. 676, 677 Frary v. Frary (10 N. H. 61) ii. 128, 173, 175,682 Eraser v. Fraser (5 Notes Cas. 20) ii. 620 V. Fraser (Poynter Mar. & Div. 248) ii. 404 Fredd v. Eves (4 Harring. Del. 385) i. 566, 570, 578, 619 Freelandu. Eldridge (19 Misso. 325) i. 193 u. Freeland (19 Misso. 354) i. 773; ii. 667 Freeman v. Freeman (3 West. Law Jour. 475) ii. 141, 144 V. Sedgwick (6 Gill, 28) ii. 75 Freer v. Walker (1 Bailey, 184) i. 586 Freigley v. Freigley (7 Md. 537) ii. 446 French v. French (14 Gray, 186) ii. 60, 259, 284 GAL INDEX TO CASES CITED. GER French v. French (4 Mass. 587) i. 744; ii. 498 Frest, State v. (4 Harring. Del. 58) ii- 123 Friend v. Friend (Wright, 639) i. 786, 810 ; ii. 30, 256, 278, 674 Frith V. Frith (18 Ga. 273) i. 191 ; ii. 402 V. Sprague (14 Mass. 455) i. 409, 427 Frost V. Willis (13 Vt. 202) i. 578 Fry V. Fry (7 Paige, 461) ii. 379, 733 — , State V. (4 Misso. 120) i. 5, 666, 668, 678,686, 693; ii. 192 Fulk V. Fulk (8 Blackf. 561) ii. 379 Fuller u. Fuller (17 Cal. 605) i. 497 FuUerton v. Bank of the United States (1 Pet. 604) i. 84 Fulton V. Fulton (36 Missis. 517) i. 758, 773, 783, 785, 786 ; ii. 255, 673 V. Fulton (12 Scotch Sess. Cas. 1104) i. 723 Fultz V. Fox (9 B. Monr. 499) i. 99, 667 Fulwood's case (Cro. Car. 482) i. 211, 215 Furlong V. Hysom (35 Maine, 332) i. 556, 617 Furlonger v. Furlonger (5 Notes Cas. 422) i. 761 Furness v. Furness (2 Swab. & T. 63) ii. 64 Furst V. Furst (Poynter Mar. & Div. 260) ii. 394 Fyler v. Fyler (Deane & Swa- bey, 175) ii. 394 G. G V. T (1 Spinks, 389) ii. 600 Gage V. Gage (2 Dane Ab. 309) ii. 173, 377 Gahagan v. People (1 Parker, 378) i. 499, 532 Gaillard u. Gaillard (23 Missis. 152) i. 810 Gaines v. Gaines (9 B. Monr. 295) i. 678, 687, 689, 691, 783; ii. 363, 375, 379, 751 V. Relf (12 How. U. S. 472) i. 299,473,497; ii. 765 Gains V. Buford (1 Dana, 481) i. 668 Gale V. Gale (19 Barb. 249) i. 209 Gale V. Gale (2 Robertson, 421) i. 726, 727 , State V. (7 Wis. 693) i. 84 Galloway v. Holmes (1 Doug. Mich. 330) i. 214 Gait V. Galloway (4 Pet. 332) i. 469 Galwith V. Galwith (4 Har. & McH. 477) ii. 355 Ganer v. Lanesborough (Peake, 17) i. 299, 477, 529 Garbrand v. Allen (Comb. 450) i. 554 Gardner v. Gardner (2 Gray, 434) ii. 45, 49,51, 52, 58 V. Walker (Stra. 503) ii: 362 Garrat v. Garrat (4 Yeates, 244) ii. 233, 604, 607 Garrett v. Garrett (12 Ind. 407) ii. 347 Gary v. May, (16 Ohio, 66) ii. 315 Gaston V. Frankum (11 Eng. L. & Eq. 226 ; 16 Jur. 507) i. 582 Gathings v. Williams (5 Ire. 487) i. 105, 111,537 Gatling V. Newell (9 Ind. 572) i. 209 Gautt V. Gautt (12 La. An. 673) i. 412 Gavin V. Burton (8 Ind. 69) i. 144 Gay lor v. McHenry (15 Ind. 383) i. 629 Gaylord v. Gaylord (4 Jones Eq. 74) ii. 496 Gee V. Thompson (11 La. An. 657) ii. 729, 730 Geils V. Dickenson (20 Eng. L. & Eq. 1 ; 15 Scotch Sess. Cas. N. 8. H. of L. 28) ii. 202 V. Geils (1 Macq. Scotch Ap. Cas. 36) ii. 157 V. Geils (1 Macq. Scotch Ap. Cas. 255) ii. 148, 149, 202 V. Geils (6 Notes Cas. 101) i. 739 George v. Thomas (10 U. C. Q. B. 604) i. 444 Georgia Railroad & Banking Co. V. Harris (5 Ga. 527) ii. 133 Gerard v. Gerard (2 Barb. Ch. 73) ii. 495,498 Germond v. Germond (6 Johns. Ch. 347) ii. 604, 608 V. Germond (1 Paige, 83) ii. 365, 406 [639] GOD INDEX TO CASES CITED. GOU Germond v. Germond (4 Paige, ■' 643) ii. 4.57, 461 Geron v. Felder (15 Ala. 304) i. 424 Gethin v. Gethin (2 Swab. & T. 560) ii. 32 Gibert, United States v. (2 Sum- ner, 19) ii. 640 Gilbert v. Thomas (3 Kelly, 575) ii. 233, 255 Gilchrist v. Bale (8 Watts, 355) i. 625; ii. 661 V. Brown (4 T. K. 766) i. 592 Gill V. Gill (2 Add. Ec. 382) i. 771 V. Read (5 K. I. 343) i. 557, 620, 621 ; ii. 558 Gilleland v. Martin (3 McLean, 490) i. 452 Gillinwaters v. Gillinwaters (28 Misso. 60) i. 798, 808 Gilmer v. Ware (19 Ala. 252) i. 214 Gilmore v. Gilmore (5 Jones Eq. 284) ii. 504 Gilpin V. Gilpin (3 Hag.Ec. 150) ii. 17, 342, 346 Girardy v. Richardson (1 Esp. 13) ii. 75 Girod V. Lewis (6 Mart. La. 559) i. 169 Gishwiler v. Dodez (4 Ohio State, 615) ii. 529 Gist V. McJunkin (2 Rich. 154) li. 572 Given v. Marr (27 Maine, 212) i. 99, 698; ii. 706, 710 Glaze, State v. (9 Ala. 283) i. 825 Gleason v. Gleason (4 Wis. 64) i. 789; ii. 161 Glen, Ex parte (4 Des. 546) i. 128 ; ii. 566 Glenn v. Glenn (7 T. B. Monr. 285) ii. 363 Glennie v. Glennie (3 Swab. & T. 109) ii. 417 Glover v. Glover (16 Ala. 440) ii. 128, 355, 358 Goddin V. Shipley (7 B. Monr. 575) i. 402 Godfrey v. Brooks (5 Harring. Del. 396) i. 613 V. Godfrey (27 Ga. 466) ii. 314 -V. Hays (6 Ala. 501) ii. 528 Godwin V. Lunan (Jefferson, 96) [640] i. 71 Goldsmid v. Bromer (1 Hag. Con. 324) i. 394 Goldsmith v. Goldsmith (6 Mich. 285) ii. 421 Gronsolis V. Donehouquette (1 Misso. 666) i. 648 Goodall V. Goodall (2 Lee, 264) ii. 386 V. Goodall (2 Lee, 384) ii. 89 V. Thurman (1 Head, 209) i. 314 Goode V. Goode (2 Swab. & T. 253) ii. 98 Goodheim v. Goodheim (2 Swab. & T. 250) ii. 446 Goodin v. Smith (Dililward, 236) ii. 260, 754 Gooding, Reg. v. (Car. & M. 297) i.481 Goodman v. Griffin (3 Stew. 160) 1. 413 Goodrich v. Bryant (5 Sneed, 325) i. 655 Goodright V. Saul (4 T. R. 356) i. 448 Goodwin V. Appleton (22 Maine, 453) i. 425 V. Goodwin (4 Day, 343) ii. 238 V. Goodwin (45 Maine, 377) ii. 212, 682 V. Thompson (2 Greene, Iowa, 329) i. 145, 294 Gordon v. Englegraaff (Ferg. 251 li. 176 V. Hobart (2 Sumner, 401) i. 70 17. Potter (17 Vt. 348) ii. 528, 556 V. Pye (Ferg. 276) i. 7 ; ii. 146, 148 , Rex V. (Rnss. & Ey. 48) i. 144 Gore V. Gibson (13 M. & W. 623) i. 131 Gorman v. State (23 Texas, 646) i. 454 Goshen V. Richmond (4 Allen, 458 i. 95, 101, 137, 658 V. Stonington (4 Conn. 209) i. 495, 496, 670 Goss V. Goss (29 Ga. 109) ii. 497 Gould V. Gould (2 Aikins, 180) ii. 231, 241 V. Gould (1 Met. 382) ii. 296 GRE INDEX TO CASES CITED. GRI Gould V. Webster (1 Tyler, 409) 11. 712 Govane's case (2 Bland, 570) ii. 356 Governor v. The Rector (10 Humph. 57) i. 144, 174, 295, 344 Govier v. Hancock (6 T. R. 608) i. 574, 626, 800; ii. 76 Grace, Slave (2 Hag. Adm. 94) ii. 141 Graecen v. Graecen (1 Green Ch. 459) i. 719, 726, 730, 744, 768; ii. 228, 657 Graham's case (2 Lewin, 97) i. 228, 265 Graham v. Bennet (2 Cal. 503) i. 279, 289, 301 V. Law (6 U. C. C. P. 310) i. 443, 524, 628 V. Little (3 Jones Eq. 152) 1. 193 Grant's succession (14 La. An, 795) i. 425 Grant v. Grant (2 Curt. Ec. 16) iL 245, 613, 615, 620, 629, 631, 646 V. Grant (10 Jur. 103) ii. 88, 622 V. Mennons (Ferg. Con- sist. Law, App. 110) i. 234, 238 V. Swift (4 Johns. 34) ii. 701 Graves v. Cole (7 Harris, Pa. 171) ii. 391, 399 V. Graves (3 Curt. Ec. 235) i. 179; h. 17,21, 611, 635 V. Graves (2 Paige, 62) ii. 235, 236, 365, 410, 745 Gray v. Askew (3 Ohio, 466) i. 85 V. Gray (15 Ala. 779) i. 782, 783, 798, 808 ; ii. 250, 668, 672 V. Gray (2 Swab. & T. 263) ii. 32 0. Hawes (8 Cal. 562) ii. 159 V. Otis (11 Vt. 628) i. 557 Green, Commonwealth v, (17 Mass. 515) ii. 701, 702 1!. Green (7 Ind. 113) ii. 230, 314, 516 V. Otte (1 Sim. & S. 250) ii. 734 V. Pallas (1 Beasley, 267) i. 613 V. Sperry (16 Vt. 390) i. 556, 557 , United States v. (3 Ma- son, 482) ii. 529, 546 Greene v. Greene (2 Gray, 361 ; 4 Am. Law Register, 42) ii. 753, 760, 764 VOL. n. 41 Greene v. Greene (11 Pick. 410) ii. 121, 125, 126, 173,175, 18ft Greenhill v. Ford (1 Fras. Dom. Rel. 667) ii: 49 V. Ford (1 Shaw Ap. Cas. 435) ii. 70 V. Greenhill (1 Curt. Ec. 462) ii. 498, 531 , Rex c. (6 Nev. & M. 244; 4 Ad. &E. 624) ii. 529, 546 Greenland v. Brown (1 Des. 196) ii. 362, 502 Greenlaw v. Greenlaw (12 N. H. 200) i. 99, 698; ii. 173, 332 Greensborough v. Dnderhill (12 Vt. 604) i. 453 Greenstreet v. Cumyns (2 Phillim. 10 ; 2 Hag. Con. 332) ii. 30, 587, 596, 598 Greenwood v. Curtis (6 Mass. 358) i. 376, 390 ^ V. Spiller (2 Scam. 502) i. 540 Greg V. Greg (2 Add. Ec. 276) ii. 421 Gregg V. Wyman (4 Cush. 332) ii. 76 Gregory v. Paul (15 Mass. 31) i. 601 V. Pierce (4 Met. 478) i. 601, 777 ; ii. 674 Gresse ». Gresse (1 Phillim. 210) ii. 434 Grffinr. Griffin (8 B. Monr. 120) i. 35, 768; ii. 358, 766 V. Griffin (23 How. N. Y. Pr. 189 ; 21 lb. 364) ii. 432, 478 jj. Reynolds (17 How. U. S. 609) i. 469 Griffing v. Hopkins (Walk. Mich. 49) ii. 527 Griffiths V. Reed (1 Hag. Ec. 195) ii. 631 Grimani v. Draper (12 Jur. 925) i. 130; ii. 563 Grimbaldeston v. Anderson (1 Phillim. 147) ii. 585 V. Anderson (3 Phillim. 155) li. 596 Grimm v. Grimm (1 E. D. Smith, 190) ii. 498 Grindall v. Grindall (3 Hag. Ec. 259) ii. 637 Grindell v. Godmand (13 Legal Observer, 467; 1 Nev. & P. 168; 5 Ad. &E. 755; 2 Har. & W. 339) ii. 391 [641 J HAL INDEX TO CASES CITED. HAN Grisham v. State (2 Yerg. 589) i. 279 Srroom t). Thomas (2 Hag. Ec. 433) ii. 563 Grotgen v. Grotgen (3 Bradf. 373) i. 249, 279 Grove's Appeal (1 Wright, Pa. 443) i. 786, 799, 805 Groves V. Nutt (13 La. An. 117) i. 406 Grubb V. Grubb (1 Harring. Del. 516) ii. 521 Guembell v. Guembell (Wright, 226) ii. 198, 676 Guest V. Shipley (2 Hag. Con. 321) 1. 116,. 331; ii. 262, 582, 754, 765 Guidery v. Guidery (2 Mart. La. 132) ii. 501 Guild V. Guild (16 Vt. 512) ii. 344 Guilford V. Oxford (9 Conn. 321) i. 178, 323,694 Gutzwiller v. Lackman (23 Misso. 168) i. 214 H. H. V. C. (1 Swab. & T. 605) i. 336 ; ii. 112, 582, 583, 596 Hackney v. Hackney (9 Humph. 450) ii. 237, 328 Haffey v. Haffey (14 Ves. 261) ii. 506 Hagerty v. Harwell (16 Texas, 663) ii. 514 Haines v. Jefcott (5 Mod. 168; Comb. 356) _ i. 315 V. Stauffer (1 Harris, Pa. 541) i. 83 Hair v. Hair(10 Rich. Eq. 163) i. 43 Hairston v. Hairston (27 Missis. 704) ii. 123, 125 Hake v. Fink (9 Watts, 336) ii. 715, 754, 760 Hake well. In re (15 Eng. L. & Eq. 599) ii. 529 , In re (22 Eng. L. & Eq. 395) ii. 529 Hale V. New Jersey Steam Navi- gation Co. (15 Conn. 539) i. 402 Halford v. Halford (3 Phillim. 98) ii. 253 V. Halford (Poynter Mar. & Div. 200) ii. 26, 637 Hall V. Faust (9 Rich. Eq. 294) i. 582, 607 V. Hall (4 Allen, 39) ii. 92, 672 [642] Hall V. Hall (4 N. H. 462) ii. 38 V. Warren (9 Ves. 605) ii. 563 V. Weir (1 Allen, 261) i. 568 Hallett V. Collms (10 How. U. S. 174) i. 218, 279 Halsted v. Halsted (5 Duer, 659) ii. 431 Ham's case (2 Fairf. 391) i. 497 Ham V. McClaws (1 Bay, 93) i. 670 V. Torrey (Selw. N. P. 271) i. 573 Hamaker v. Hamaker (18 HI. 137) i. 125, 137, 834 ; ii. 293, 687 Hamerton v. Hamerton (1 Hag. Ec. 23) ii. 424, 425 V. Hamerton (2 Hag. Ec. 8) ii. 17, 253, 262, 613, 641, 646 V. Hamerton (2 Hag. Ec. 618) ii. 256 V. Hamerton (3 Hag. Ec. 1) ii. 625 Hamilton, Commonwealth v. (6 Mass. 273) ii. 527, 549 V. Hamilton (1 Bell Ap. Cas. 736 ; 9 CI. & F. 327) i. 240, 247, 252, 438 V. Lomax (26 Barb. 615) i. 143; ii. 75 V. Wyllies (5 Scotch Sess. Caa. new ed. 668) i. 107 Hamlin v. Bevans (7 Ohio, 1st pt. 161) ii. 501 Hammick v. Bronson (5 Day, 290) i.443 Hammond, Commonwealth v. (10 Pick. 274) ii. 549 V. Hammond (Clarke, 151) ii. 406, 445, 457, 461 Hanberry v. Hanberry (29 Ala. 719) i. 786, 810; ii. 127, 128,171, 250, 260, 679 Hancock v. Hancock (5 N. H. 239) ii. 667 V. Merrick (10 Cush. 41) i. 571 ; ii. 401, 528, 558 Hanks v. Hanks (3 Edw. Ch. 469) i. 24; ii. 30, 90, 235 Hanover v. Turner (14 Mass. 227) ii. 141, 144, 161 Hanrick v. Andrews (9 Port. 9) i. 424 Hansel v. Hansel (Wright, 212) . ii. 198, 250 Hansford v. Hansford (10 Ala. 661) ii. 530, 531, 532 HAR INDEX TO CASES CITED. HAS Hansley v. Hansley (10 Ire. 506) i. 719, 825; ii. 242,245 Hantz V. Sealy (6 Binn. 405) i. 105, 248,279,437 Harborne, Rex v. (2 Ad. & E. 540) i. 452, 453 Hardenbergh v. Hardenbergh (14 Cal. 654) i. 777, 789 Hardin v. Hardin (17 Ala. 250) i. 799 Harding v. Alden (9 Greenl. 140) i. 14; ii. 128, 134, 141, 157, 159, 160, 161, 169, 171, 173, 709, 711, 754, 760 V. Brooks (5 Pick. 244) ii. 644 Hare v. Hare (10 Texas, 355) ii. 126, 128, 144, 172, 176, 605, 651, 666, 682 Harford v. Morris (2 Hag. Con. 423) i. 150, 166, 195, 211, 356, 361, 373; ii. 294 Hargrave v. Hargrave (9 Beav. 552) i. 447, 448 Hargroves v. Meray (2 Hill Ch. 222) i. 654 V. Thompson (31 Missis. 211) i. 279, 283, 293 Harlow v. Humiston (6 Cow. 189) ii. 75 Harman v. Harman (1 Cal. 215) i. 279; ii. 198 V. Harman (16 III. 85) i. 442, 718, 813 ; ii. 262, 264, 268 Harmar v. Harmar (Deane & 'Swabey, 282) ii. 431 Harper u. Harper (29 Misso. 301) ii. 38, 40, 88 V. Harper (Wright, 283) ii. 645 Harratt v. Harratt (7 N. H. 196) i. 717, 719, 730 Harrington v. Harrington (10 Vt. 505) ii. 397 Harris u. Ball (2 Hag. Con. 327) i. 331 V. Ball (3 Phillim. 147) ii. 582 V. Davis (1 Ala. 259) ii. 391, 399 V. Harris (1 Hag. Ec. 351) ii. 425, 448, 449, 457, 459, 460 V. Harris (2 Hag. Ec. 376) ii. 5, 7, 17, 80, 242, 243, 619, 620, 629, 631, 642, 646 Harris v. Harris (2 Phillim. Ill) i. 717, 719, 722, 729, 730 V. Hicks (2 Salk. 548) i. Ill V. Lee (1 P. Wms. 482) i. 554, 621 V. Morris (4 Esp. 41) i. 568, 572,577,806 Harrison v. Almond (4 Powl. P. C. 321) i. 593 V. Burwell (2 Vent. 9 ; Vaugh. 206) i. 106, 109, 316, 377 V. Harrison (19 Ala. 499) ii. 126, 128, 141, 161, 198, 314, 682, 762, 764 V. Harrison (20 Ala. 629) ii. 58, 127, 144, 202 V Harrison (4 E. F. Moore, 96) ii. 243, 245 V. Harrison (7 Ire. 438) ii. 256, 651 V. Harrison (1 Philad. 389) i. 120 V. Southampton (17 Eng. L. & Eq. 364 ; 21 Eng. L. & Eq. 343) i. 294 ; ii. 756, 760 V. Sparrow (1 Curt. Ec. 1 ; 4 E. E. Moore, 96) ii. 696, 600 Harrod v. Harrod (1 Kay & Johns. 4) i. 128, 133, 136, 222 Harry v. Graham (1 Dev. &Bat. 76) i. 173 Harshaw v. Merryman (18 Misso. 106) i. 560, 619, 620 Hart V. Hart (2 Edw. Ch. 207) ii. 628, 646 V. Hart (11 Ind. 384) ii. 421 Harteau v. Harteau (14 Pick. 181) i. 817; ii. 113, 128, 171, 173, 198, 682 Harter v. Harter (5 Ohio, 318) ii. 311 Harvey v. Inglis (19 Feb. 1839) i. 202 Harvie v. Inglis (15 Scotch Sess. Cas. 964) i. 265 Harwood v. Heffer (3 Taunt. 420) i. 570, 722 Hassall, Rex v. (2 Car. & P. 343) • i. 542 Hastings v. Orde (11 Sim. 205) li. 717 Hasty, State v. (42 Maine, 287) i. 469 [643] HEL INDEX TO CASES CITED. HIC Haswell v. Haswell (1 Swab. & T. 502) ii. 82, 334 Hatchett v. Baddeley (2 W. Bl. 1079) i. 592; ii. 690 Hatfield v. Hatfield (stated 20 Howell St. Tr. 395) ii. 754 Hathaway v. Clark (5 Pick. 490) i. 516 Hatwell V. Jackson (7 Texas, 576) i. 301 Haven v. Foster (9 Pick. 112) i. 409 Hawes, Reg. v. (1 Den. C. C. 270) i.-479 Hawke v. Corri (2 Hag. Con. 280) i. 495 ; ii. 290, 759 Hawkes v. Hawkes (1 Hag. Ec. 526) ii. 446, 457, 459, 460 Hawson v. Hancock (8 T. K. 575) ii. 75 Hayes v. Watts (2 Phillim. 43) i. 294 Hayward v. Hayward (1 Swab. & T. 333) ii. 235, 460 Hazen v. Hazen (19 Vt. 603) ii. 397 Head v. Briscoe (5 Car. & P. 484) i, 581 V. Head (3 Atk. 295) i. 719; ii. 352, 353, 385, 505 ■ u. Head (3 Atk. 547) ii. 351, 361 V. Head (2 Kelly, 191) i. 23, 42, 71, 76, 664 u. Head (Turn. & Euss. 138; I Sim. & S. 150) i. 447, 448 V. Ward (1 J. J. Mar. 280) i. 99 Headen v. Headen (15 La. 61) i. 719, 768 Heathcote's Divorce Bill (1 Macq. Scotch Ap. Cas.-277) ii. 610 Heaviside's Divorce Bill (12 CI. & F. 333) ii. 109 Heaviside v. Lardner (3 Law R^orter, 201) ii. 717 Heberd v. Myers (5 Ind. 94). i. 415 Heffer v. Heflfer (3 M. & S. 265) i. 204 Hefifher v. Heffner (11 Harris, Pa. 104) i. 299, 300 Helden v. Plelden (9 Wis. 557, II Wis. 554) ii. 421 Helffenstein v. Thomas (5 Rawle, 209) i. 283, 284 Helms V. Franciscus (2 Bland, 644) i. 646, 722; ii. 262, 291, 355, 359 [644] Hemmenway v. Towner (1 Al- len, 209) i. 186 Hemming v. Price (12 Mod. 432) i. 105 Hemmings v. Smith (4 Doug. 33) i. 442, 479,491, 498 Hemphill v. Bank of Alabama, 6Sm. &M. 44) i. 412, 413 Hempstead v. Keed (6 Conn. 480) i. 418 Henderson v. Cargill (31 Missis. 367) i. 442,540 V. Stringer (2 Dana, 291) i. 577 Hendricks v. Mount (2. South- ard, 738) i. 173 Henry v. Sargeant (13 N. H. 321) i. 402 Henthorn v. Shepherd (1 Blackf. 157) i. 424 Hepworth v. Hepworth (2 Swab. &T. 414) ii. 417, 498 Herbert v. Herbert (2 Hag. Con. 263) ii. 302 V. Herbert (2 Hag. Con. 271 ; 3 Phillim. 58) i. 287, 355, 533 Herman v. McLeland (16 La. 26) ii. 245 , State V. (13 Ire. 502) i. 187 V. Herron (16 Ind; 129) ii. 233, 255 Hervey v. Hervey (2 W. Bl. 877) i. 437,439,489; ii. 269 Hesler v. Hesler (Wright, 210) i. 810; ii. 198,346, 354, 675 Hester v: Hester (4 Dev. 228) 11. 723 Hevice, Respublica v. (3 Wheeler Crim. Cas. 505) i. 166, 215, 219 Hewitt, Ex parte (11 Rich. 326) ii. 546 V. Hewitt (1 Bland, 101) ii. 355, 360, 361, 499, 500 Hews V. Hews (7 Gray, 279) i. 802 Heyer v. Burger (Hofiinan, 1) i. 650 Heyward v. Cuthbert (4 Des. 445) ii. 527 Hickey v. Stewart (3 How. U. S. 750) ii. 133 Hickman v. Barnes (1 Misso. 156) ii. 744 Hicks V. Cochran (4 Edw. Ch. 107) i. 229, 508 HOD INDEX TO CASES CITED. HOL Higgins V. Breen (9 Misso. 497) 1. 105, 301 ; ii. 696 Higgs V. Higgs (3 Hag. Ec. 472) ii. 447, 449,452, 494 High, appellant (2 Doug. Mich. 515) i. 413 V. Worley (33 Ala. 196) i. 582 Hill V. Burger (3 Bradf. 432) i. 513 u. Bush (18 Ark. 522) i. 209 17. Good (Vaughan, 302) i. 316 V. Hill (10 Ala. 627) ii. 319, 651 V. Hill (8 Casey, 511) i. 471, 473,497 V. Hill (2 Mass. 150) i. 729 ; ii. 262 V. Hill (2 Swab. & T. 407) ii. 258 Hills V. Hills (6 Law Reporter, 174) i. 786, 806 Hillsboro' V. Deering (4 N. H. 86) ii. 528 Hillyard v. Grantham (cited 2 Ves. sen. 246) ii. 754 Hilton, State v. (3 Rich. 434) 1.497 Hind, Rex v. (Russ. & Ry. 253) i. 292 Hindley v. Westmeath (6 B. & C. 200) i. 637 Hinds V. Hinds (1 Iowa, 36) ii. 128, 211 Hinkley v. Marean (3 Mason, 88) i. 402 Hinks V. Harris (Garth. 271 ; 2 Salk. 648) i. 109, 320 Hinson v. Wall (20 Ala. 298) i. 413 Hiram v. Pierce (45 Maine, 367) i. 117, 295 Hite D. Lenhart (7 Misso. 22) i. 409 Hoar V. Hoar (3 Hag. Ec. 137) ii. 6, 7, 17, 21 Hobart v. Hilllard (11 Pick. 143) ii. 311 V. Lemon (3 Rich. 131) i. 684 Hobbs V. Hull (1 Cox, 445) ii. 362 Hobdy B. Jones (2 La. An. 944) i. 443 Hodges V. Hodges (1 Esp. 441) i. 791 V. Hodges (3 Hag. Ec. 118) ii. 11 V. Windham (Peake, 39) ii. 11 Hodgskins, State v. (19 Maine, 155) i. 279, 442, 496 Hodgkinson v. Fletcher (4 Camp. 70) ii. 401 — -^ V. Wilkie (1 Hag. Con. 262) i. 294 Hodnett, Rex v. (1 T. R. 96) i. 293 Hoes V. Van Alstyne (20 111. 201) i. 426, 427, 428 Hoffman v. Hoffman (6 Casey, 417) i. 191; ii. 260,671, 751 Hoffmire v. Hoffmire (3 Edw. Ch. 173) ii. 57, 338 Hofmire v. Hofmire (7 Paige, 60) ii. 43, 57, 260, 338 Hoggan V. Cragie (Maclean & Rob. 942) i. 250, 261, 265 Holden v. Holden (1 Hag. Con. 453) i. 717, 729, 730, 734 744, 768 V. James (11 Mass. 396) i. 675 Holgatew. Cheney (Brayton, 158) i. 285, 343 Holland V. Cruft (20 Pick. 321) i. 70 V. Holland (2 Mass. 154) ii. 241, 242 HoUerman v. HoUerman (1 Barb. 64} ii. 409 Hollister v. HoUister (6 Barr. 449) i. 730; ii. 28, 51, 173 V. Loud (2 Mich. 309) ii. 572 HoUoman v. Holloman (2 Dev. & Bat. Eq. 270) ii. 255, 260 Holman v. King (7 Met. 384) i. 418, 427 Holmes v. Greene (7 Gray, 299) ii. 123 V. Holmes (4 Barb. 295) i. 14, 15, 675,678,679, 686, 693; ii. 170, 375, 376, 429, 714, 733 V. Holmes (6 La. 463) i. 5, 279, 283, 284,437; ii. 272 V. Holmes (2 Lee, 90) ii. 387, 394 V. Holmes (2 Lee, 116) i. 804 V. Holmes (Walk. Missis. 274) i. 751; ii. 80, 512 V. Malletfc (1 Morris, 82) i. 412, 413 Holston V. Holston (23 Ala. 777) i. 784 ; ii. 88, 347, 606 Holt V. Brien (4 B. & Aid. 252) i. 553, 560, 617 [645] HOW INDEX TO CASES CITED. HUN Holt V. Clarencieux (2 Stra. 937) i. 112 V. Ward (2 Stra. 937) i. 143 Homston v. Homston (3 Mass. 159) ii. 814 Honyman v. Campbell (8 Scotch Sess. Cas. 1039; 6 Wilson & •Shaw, 92) i. 247, 265 Hooper V. Hooper (19 Misso. 355) i. 821, 826 V. Hooper (1 Swab. & T. 602) ii. 235 , State V. (5 Ire. 201) i. 308 Hoover v. Heim (7 Watts, 62) ii. 528 Hope V. Hope (1 Swab. & T. 94) i. 55, 58, 807; ii. 76,82, 87 Hopkins v. Hopkins (3 Mass. 158) ii. 173, 255 V. Hopkins (35 N. H. 474) ii. 127, 212, 682 Hopper V. Hopper (11 Paige, 46) ii. 341 Hopson V. Boyd (6 B. Monr. 296) ii. 668 Horner t;. Liddiard (1 Hag. Con. 337) i. 293, 315 Hotchkish's case (1 Boot, 355) ii. 311 Houliston V. Smyth (3 Bing. 127; 2 Car. &. P. 22, 10 J. B. Moore, 482) i. 570, 730, 791 ; ii. 621 Houlston V. Houlston (23 Ala. 777) i. 825 Houpt V. Houpt (Wright, 156 ; 6 Ohio, 539) i. 446; ii. 269 House V. House (25 Ga. 473) ii. 144 Houston V. Houston (4 Ind. 139) ii. 514 V. Moore (5 Wheat. 1) ii. 701 Hovey, People v. (5 Barb. 117) ii. 700 Howard v. Bartlet (Hob. 181) i. 112, 316 V. Howard (6 Jones N. C. 235) i. 156, 157, 160, 161 V. Howard (15 Mass. 196) ii. 498, 737 V. Whetstone (10 Ohio 365) , i. 566, 570, 623 Howden v. Rogers (1 Ves. & B. 129) ii. 505 Howlaud, United States v. (4 Wheat. 108) i. 70 [646] Hubbell V. Hubbell (3 Wis. 662) ii. 161, 176 V. Inkstein (7 La. An. 252) i. 302 Hudson V. Robinson (4 M. & S. 475) ii. 640 Huet V. Le Messurier (1 Cox, 275) i. 478 Hugh V. Higgs (8 Wheat. 697) ii. 499 Hughes V. Chadwick (6 Ala. 651) i. 555 V. Hughes (19 Ala. 307) 1. 722, 730, 734 ; ii. 68, 282, 651 V. Jackson (12 Md. 450) i. 84 V. Turner (4 Hag. Ec. 30) ii. 309 Hulings V. Hulings (2 West. Law Jour. 131) i. 191; ii. 291 Hull V. Hull (15 Jur. 710 ; 6 Eng. L. & Eq. 689) i. 166, 196 V. Hull (2 Strob. Eq. 174) i. 42, 669, 678, 686; ii. 126, • 161, 198, 754 V. Rawls (27 Missis. 471) i. 454 Hulme V. Hulme (2 Add. Ec. 27) i. 729, 730 Humphrey v. BuUen (1 Atk.458) ii. 739 V. Humphrey (7 Com. 116) ii. 233, 644 , People V. (7 Johns. 314) i. 442, 499 Humphreys, People v. (24 Barb. 621) ii. 543, 548 Hunt, Ex parte (5 Cow. 284) i. 314 V. Bell (1 Binp. 1) ii. 76 V. Blaquiere (3 Moore & P. 108, 5 Bing. 550) i. 670; ii. 401 V. Booth (Freeman, Missis. 216) ii. 302 Commonwealth v. (4 Cush. 49) i. 355, 369, 554, 570; ii. 702 V. Hunt (Deane & Swabey, 121) ii. 620, 627 V. Peake (6 Cow. 475) i. 143 V. Thompson (3 Scam. 179) ii. 628 V. Teatman, (3 Ohio, 16) ii. 260 Hunter v. Boucher (3 Pick. 289) i. 673, 620 IRV INDEX TO CASES CITED. JAM Hunter u. Fulcher (5 Rand. 126) i. 424, 425 V. Whitworth (9 Ala. 968) i. 548 Huntly V. Compstock (2 Root, 99) i. 467, 651 Hurlburt v. Hurlburt (14 Vt. 661) i. 817 Hutchins v. Commonwealth (2 Va. Cas. 831) i. 319 V. Dixon (11 Md. 29) i. 646 Hutchinson v. Tindall (2 Green Ch. 357) i. 131 Hutchison v. Hutchison (l^Fras. Dom. Rel. 667) ii. 45 Hutson V. Townsend (6 Rich. Eq. 249) ii. 549 Button V. Hutton (3 Barr, 100) 1. 653' V. Mansell (Holt, 458) i. 247 Hyam v. Edwards (1 Dall. 1) i. 478 Hyatt's case (Cro. Jac. 364) ii. 353 Hyatt V. Wood (4 Johns. 150) ii. 75 Hyde v. Hyde (3 Bradf. 509) i. 506, 508, 510 V. Hyde (29 Law J. N. 8. Mat. 150) ii. 464, 466 V. Price (3 Ves. 437) ii. 437 Dderton v. Ilderton (2 H. Bl. 145) i. 361 Imhoff V. Brown (6 Casey, 504) i. 586, 606 V. Witmer (7 Casey, 243) ii. 569 Independence v. Pompton (4 Halst. 209) i. 540 Inglis V. Robertson (1 Eras. Dom. Rel. 157) i. 231 Ingraham t>. Hart (11 Ohio, 255) i. 418 Innel v. Newman (4 B. & Aid. 419) i. 593 Inskeep v. Inskeep (5 Iowa, 204) i. 832; ii. 467, 613, 614, 619, 620 Irby V. Wilson (1 Dev. & Bat. Eq. 568) ii. 126, 128, 134, 157, 159 Irving V. Greenwood (1 Car. & P. 360) i.l70 Irwiny. Dowling (Milward, 629) ii. 457, 460 Isaacs V. Boyd (5 Port. 388) ii. 627 J. Jackson ». Boneham (15 Johns. 226) i. 476, 540 V. Browner (18 Johns. 37) i. 540 V. Bulloch (12 Conn. 38) 1. 154 V. Claw (18 Johns. 346) i. 446, 453, 608, 513 V. Combs (7 Cow. 36) ii. 527 V. Cooley (8 Johns. 128) i. 640 V. Hawkey (Jacob, 264) ii. 529 V. Jackson (8 Grant, U. C. Ch. 499) i. 765 ; ii. 660 V. Jackson (1 Johns. 424) ii. 128, 141, 144, 161, 760, 763 V. King (5 Cow. 237) i. 463 V. People (2 Scam. 231) i. 463, 464, 483 , State V. (2 Dev. 563) i. 418, 424 V. Stewart (20 Ga. 120) , ii. 514, 617 V. Sublett (10 B. Monr. 467) i. 676, 693 V. Winne (7 Wend. 47) i. 212, 228 Jacobs V. Featherstone (6 Watts & S. 346) i. 585, 606 , Rex V. (1 Moody, 140) i. 114, 116 V. Whitcomb) 10 Cush. 255) i. 624, 626; ii. 661 Jacocks V. Gilliam (3 Murph. 47) i. 463 Jacquins v. Commonwealth (9 Cush. 279) i. 101 Jagger, Rex v. (1 East P. C. 456) ii. 659 James v. Catherwood (3 D. & R. 190) i. 535 V. Commonwealth (12 S. & R. 220) i. 754 V. Langdon (7 B. Monr. 193) i. 194 , Rex V. (Russ. & Ry. 17) i. 294, 461 [647] JNB INDEX TO CASES CITED. JON James v. Sinitb (Reported) i. 213 V. Stewart (9 Ala. 855) i. 595 Jamison v. Jamison (4 Md. Ch. 289) i. 685; ii. 355, 358,438 Jaques v. Public Administrator (1 Brad. 499) i. 105, 136 Jarvis v. Jarvis (3 Edw. Ch. 462) i. 99, 698; ii. 176, 344 Jeans v. Jeans (2 Harring. Del. 38) i. 71 ; ii. 334, 337, 348, 552 V. Jeans (2 Harring. Del. 142) ii. 457, 512, 519, 532, 552 V. Jeans (3 Harring. Del. 136) ii. 260, 751 Jee V. Thurlow (4 D. & R. 11 ; 2 B. & C. 547) i. 637 ; ii. 377, 717, 741 Jelineau v. Jelineau (2 Des. 45) i. 42, 719, 722, 726, 730; ii. 302, 355, 358, 361, 386 Jenkins v. Bisbee (1 Edw. Ch. 377) i. 443, 538 V. Davies (10 Q. B. 314) i. 469 V. Jenkins (2 Dana, 102) i. 5, 121, 136 V. Tucker (1 H. Bl. 90) i. 565 Jenkyn v. Jenkyn (Deane & Swabey, 268) ii. 637 Jenne v. Jenne (7 Mass. 94) ii. 315 Jenner v. Morris (3 DeG. F. & J. 45, 1 Drew & S. 218, 7 Jur. N. 8. 375) i. 621, 622 Jenners v. Howard (6 Blackf. 240) i. 131 Jennings v. Jennings (2 Beasley, 38) i. 783; ii. 671 V. Jennings (16 Vt. 607) j. 817 V. Montague (2 Grat. 350) ii. 520 Jennison v. Graves (2 Blackf. 441) ii. 528 V. Hapgood (10 Pick. 77) ii. 123 Jesson V. Collins (Holt, 457, 2 Salk. 437) i. 256 Jessop V. Jessop (2 Swab. & T. 301) ii. 28, 32 Jewell u. Jewell (1 How. U. S. 219) i. 224, 238, 254, 279 J. F. C. V. M. E. his wife (6 Rob. La. 135) ii. 72, 96, 534 J. N. B., State v. (1 Tyler, 36) ii. 723 [6481 Joffrion v. Bordelon (14 La. An. 618) i. 599 Johns V. Johns (29 Ga. 718) ii. 47, 80, 249, 663 , United States ». (1 Wash. C. C. 361) i. 424 Johnson v. Chadwell (8 Humph. 145) i. 193 V. Chambers (12 Ind. 102) i. 413 V. Johnson (14 Cal. 459) i. 764 V. Johnson (1 Edw. Ch. 439 ; 4 Paige, 460 ; 14 Wend. 637) j. 71, 74; ii. 33, 38, 56, 57, 121, 333, 334, 335, 338, 340, 341, 632, 646 V. Johnson (4 Harring. Del. 171) i. 582 V. Johnson (6 Johns. Ch. 163) ii. 327 V, Johnson (30 Misso. 72) ■ i. 223 1;. Johnson (Walk. Mich. 309) i. 823 ; ii. 691, 751 V. Johnson (4 Wis. 135.) i. 718, 821 ; li. 278, 307, 329, 568 V. Kincade (2 Ire. Eq. 470) i. 136, 138; ii. 293 V. Medlicott (3 P. Wms. 130) i. 131 V. Sherwin (3 Gray, 374) i. 624, 626; ii. 661 V. Williams (3 Greene, Iowa, 97) ii. 391 Johnston v. Brown (2 Scotch Sess. Cas. new ed. 437) i. 132 V. Ferrier (cited 1 Fras. Dom. Rel. 43) i. 146 V. Johnston (Wright, 454) ii. 354, 620, 678 V. Kirkwood (4 Dru. & W. 379) i. 592 V. Parker {3 Phillim. 39) i. 294 V. Sumner (3 H. & N. 261) i. 553, 556, 568, 578, 580, 620 Jolly V. Jolly (1 Iowa, 9) ii. 516 V. McGregor (3 Wilson, & Shaw, 85) i. 166 , State V. (8 Dev. & Bat. 110) ii. 723 Jones V. JEtna Insurance Co. 14 Conn. 501) i. 404 KEA INDEX TO CASES CITED. KEY Jones V. Bow (Garth. 225) ii. 754 V. Hunter (2 La. An. 254) i. 4S8 V. Jones (13 Ala. 145) i. 783, 810 ; ii. 678 V. Jones (2 Barb. Ch. 146) ii. 384, 406, 409 V. Jones (18 Maine, 308) i. 473 ; ii. 262, 303, 345, 376, 396 V. Jones (2 Tenn. 2) i. 698, 699 ; ii. 199 V. Jones (1 U. S. Mo. Law Mag. 300 ; 7 Legal Intelligen- cer, 19 ; 2 Jones, Pa. 350) i. 686, 687, 690, 691 V. Jones (Wright, 155) i. 738, 768 ; ii. 354 V. Jones (Wright, 244) i. 750 V. Laney (2 Texas, 342) i. 414 V. Maffet (5 S. & R. 523) i. 426 V. Perry (10 Yerg. 59) i. 682 , Eeg. V. (Car. & M. 614) i. 298 , Reg. V. (9 Car. & P. 258) i. 791 V. Robinson (2 Phillim. 285) i. 294 V. State (5 Blackf. 141) i. 299 V. Tevis (4 Litt. 25) i. 293 ; ii. 527, 528 Jordan v. Jordan (17 Ala. 466) ii. 250 Joyce V. Joyce (5 Cal. 161) ii. 572 Judson V. Lathrop (1 La. An. 78) ii. 119 Juffrion V. Bordelon (14 La. An. 618) i. 582 Jungk V. Jungk (5 Iowa, 541) ii. 260 K. K V. K (Page on Div. 171) i. 816 Kane v. Kane (3 Edw. Ch. 389 ii. 333, 338, 605, 606 Kaine v. Weigley (10 Harris, Pa. 179) ii. 572 Kashaw v. Kashaw (3 Cal. 312) ii. 127, 298, 514 Kay V. Pienne (3 Camp. 232, 2 Bos. & P. 233) i. 592 Kaywood v. Barnett (3 Dev. & Bat. 91) i. 540 Kea, Rex J). (11 East, 132) i. 547 Kean, State v. (10 N. H. 347) i. 291, 495, 523 Keats V. Keats (1 Swab. & T. 334) ii. 34, 38, 47, 416 Kee V. Vasser (2 Ire. Ch. 553) i. 582 Keegan v. Smith (5B. & C. 375) ii. 401 Keighley's case (10 Co. 139 a) i. 830 Keith V. Keith (Wright, 518) ii. 600 Kelly V. McGuire (15 Ark. 555) i. 540 V. Neely (7 Eng. 657) i. 314 V. Scott (5 Grat. 479) i. 319; ii. 691 Kemble v. Church (3 Hag. Ec. 273) ii. 563 Kemp V. Downham (3 Harring. Del. 417) i. 568, 619, 620 Kempe v. Kempe (1 Hag. Ec. 532) ii. 425, 457, 459, 465 Kendall v. Dodge (3 Vt. 360) i. 670 V. Kendall (1 Barb. Ch. 610) ii. 365, 411,490 Kenley v. Kenley (2 How. Missis. 751) i. 717, 719, 722; ii. 302 V. Kenley (2 Yeates, 207) i. 299 Kenn's case (7 Co. 42') i. 113 ; ii. 754 Kennard v. Burton (25 Maine, / 39) ii. 528, 659 Kennedy v. Campbell (3 Wilson & Shaw, 135) i. 238 V. Cunningham (2 Met. Ky. 538) i. 84 V. Macdowall (Ferg. Consist. Law Rep. 163, App. 90) i. 263 Kenningham v. McLaughlin (3 T. B. Monr. 30) ii. 527 Kenny v. Clarkson (1 Johns. 385) i. 426, 427 Kenrick v. Kenrick (4 Hag. Ec. 114) i. 717; ii. 269, 621, 626, 629, 631 Kent V. Burgess (11 Sim. 361) i. 390, 392, 395, 396, 400 V. State (8 Blackf. 168) i. 346 Kenyon v. Ashbridge (11 Casey, 157) i. 497, 547 Kerr, The Judge v. (17 Ala. 328) 1. 582 Kester v. Stark (19 111. 328) i. 143 Keyes v. Keyes (2 Eost. N. H. 553) i. 124, 166, 279; ii. 291 Keys V. Norris (6 Rich. Eq. 388) ii. 567 [649] KIR INDEX TO CASES CITED. LAN Kibblewhite v. Rowland (Ferg. 226) ii. 29, 148, 150 Kiffin V. Kiffin (cited 1 P. Wms. 697) ii. 529 Killiam v. Killiam (25 Ga. 186) ii. 517 Killinger v. Keidenhauer (6 S. & R. 531) i. 173 Kimball v. Keyes (11 "Wend. 33) i. 660 V. Kimball (13 N. H. 222) i. 767, 800 ; ii. 673, 674, 682 King, Ex parte (27 Ala. 387) ii. 406, 421 y. Chase (15 N. H. 9) ii. 639 V. King (28 Ala. 315) i. 765 ; ii. 250, 472 V. King (2 Robertson, 153) ii. 281 V. King (4 Scotch Sess. Cas. N. s. 567) ii. 631 V. Paddock (18 Joling 141) i. 583 V. Sansom (3 Add. Ec. 277) i. 634 , State V. (1 Ga. Decis. 93) ii. 529 Kingsberry v. Kingsberry (3 Harring. Del. 8) ii. 512, 532 Kingston's case. Duchess of (20 Howell St. Tr. 355 ; 1 Leach, 4th ed. 146 ; 1 East P. C. 468 ; 2 Smith Lead. Cas. 424) i. 497 ; ii. 748, 757, 758, 759 Kingston v. Lesley (10 S. & R. 383) i. 476 Kinney v. Hosea (3 Harring. Del. 77) i. 424 Kinsey ti. Kinsey (1 Yeates, 78 ; 2 Dallas, 128) i. 719 Kintzinger's Estate (2 Ashm. 455) ii. 714 Kipping V. Ash (1 Robertson, 270) ii. 309 Kirby v. Kirby (1 Paige, 261) ii. 295, 302, 446, 457, 461, 504, 508 V. Kirby (1 Paige, 565) ii. 235, 435 V. State (3 Humph. 289) ii. 614 Kirkman v. Kirkman (1 Hag. Con. 409) i. 722, 726, 730, 734, 737, 761 Kirkwall v. Kirkwall (2 Hag. Con. 277) ii. 23, 40, 49 V. Kirkwall (Poynter Mar. & Div. 255) ii. 430, 450 [650] Kleinert v. Ehlers (2 Wright, Pa. 439) i. 448, 548 Kline v. Kline (1 Philad. 383) ii. 421, 49S Cling, People v. (6 Barb. 366) ii. 551 Klingenberger v. Klingenberger (6 S. & R. 187) . ii. 328 Klutts V. Klutts (5 Sneed, 423) i. 823 Knight V. Knight (2 Hayw. 101) ii. 302, 355 V. Wedderburn (Morr. Diet. Decis. 14545) ii. 141 Knower v. Wesson (13 Met. 143) i. 543 Knowlton, Commonwealth v. (2 Mass. 530) i. 68 Knox V. Bushell (3 C. B. n. s. 334) i. 621 Kolb's case (4 Watts, 154) ii. 258 Koonce v. Wallace (7 Jones, N. C. 507) i. 141, 145, 150 Kottman, Matter of (2 Hill, S. C. 368) ii. 529 Krebs v. O'Grady (23 Ala. 726) i. 557, 561, 595 Kriger v. Day (2 Pick. 316) ii. 522, 730, 731 Krupp V. SchoU (10 Barr, 193) i. 582 Kruse v. Kruse (25 Misso. 68) ii. 127, 211 Kuhl V. Knauer (7 B. Monr. 130) i. 443 L. Labotiere v. Labotiere (8 Mass. 383) lii. 311, 314 Lacon v. Higgins (3 Stark. 178; D. & R. N. P. C. 38) i. 283, 356, 529 Lahey, Commonwealth r. (14 Gray, 81) ii. 625 Lakin v. Lakin (2 Allen, 45) i. 455, 627 V. Lakin (1 Spinks, 274) i. 771 Lalande v. Jore (5 La. An. 32) 1. 764 Lambert, People v. (5 Mich. 349) i. 411, 427, 464, 468, 473, 474, 475,497, 499,532 Lane v. Crombie (12 Pick. 177) ii. 7S LAY INDEX TO CASES CITED. LEW Lane v. Goodwin (3 Gale & 'D. 610, 4 Q. B. 361) i. 294 V. Ironmonger (13 M. & W. 368) i. 553, 554, 556 V. Lane (2 Mass. 167) ii. 173, 255 Lang V. Lang (13 Scotch Sess. Cas. N. s. 1108) i. 804 Langdon v. Langdon (25 Vt. 67'8) ii. 56, 58 Langham v. Bewett (Cro. Car. 68) i. 581 LangstaflF v. Langstaff (Wright, 148) _ ii. 198, 620, 626 Lapsley v. Gierson (1 H. L. Cas. 498) i. 453, 506, 508 Larwill v. Kirby (14 Ohio, 1) i. 344 Lasbrook v. Tyler (1 Ch. R. 44) ii. 353 Latham v. Latham (2 Swab & T. 299) ii. 498 Lathan v. Proven (2 Scotch Sess. Cas. new ed. 250) ii. 635 Lathorp, United States v. (17 Johns. 4) ii. 701 Latour v. Latour (2 Swab. & T. 524) ii. 32 Latterett v. Cook (1 Iowa, 1) i. 424 Lattier v. Lattier (5 Ohio, 538) ii. 344 Lauber v. Mast (15 La. An. 593) i. 746 Laud V. Laud (14 Sm. & M. 99) i. 404 Lauder Vanghent (Ferg. 250) ii. 176 Laughery v. Laughery (15 Ohio, 404) ii. 751 Laurie v. Laurie (9 Paige, 234) ii. 395, 409, 504, 530 Lautour V. Teesdale (8 Taunt. 830) i. 68, 399 Lavie v. Phillips (3 Bur. 1776) i. 581 Law V. Wilkin (6 Ad. & E. 718) li. 528 Lawrence v. Lawrence (3 Paige, 267) i. 758 ; ii. 302, 445, 446, 457,461,472 V. Spear (1 7 Cal. 421) i. 582, 614 Lawson v. Shot well (2 7, Missis. 630) ii. 351, 363, 381, 433, 488, 492, 690, 705 w. State (20 Ala. 65) ii. 613, 625, 631, 642 Layne v. Pardee (2 Swan, 232) i. 405 Leader v. Barry (1 Esp. 353) i. 442, 478. Leak v. Elliott (4 Misso. 446) i. 409, 418 Leake v. Linton (6 La. An. 262) i. 813 Lean v. Schutz (2 W. Bl. 1195) i. 592 ; ii. 437, 690 Leary v. Leary (18 Ga. 696) ii. 286, 621 Leavenworth v. Brockway (2 Hill, N. Y. 201) i. 527 Leavittv. Leavitt (Wright, 719) i. 797; ii. 533, 556 Le Breton v. Miles (8 Paige, 261) i. 404 Leckie v. Moir (1 Eras. Dom. Rel. 456) i. 723 Lecompte v. Wash (9 Misso. 547) i. 627 Ledoux V. Her Husband (10 La. An. 663) ii. 227 Lee V. Lee (1 Dick. 321 ; 2 Dick. 806) ii. 741 V. Smith (18 Texas, 141) i. 302 Lefevre v. Murdock (Wright, 205} ii. 737 Leftwich V. Commonwealth (5 Rand. 657) i. 319 Legeyt v. O'Brien (Milward, 325) i. 124, 130, 131, 457, 495 ; ii. 563 Legg V. Legg (8 Mass. 99) i. 412, 527; ii. 714, 754 Legge V. Dumbleton (9 Jur. 144) ii. 294 Lehr v. Beaver (8 Watts & S. 102) i. 653 Leicester's case (1 Hag. Con. 148) ii. 76 Leighton v. Leighton (14 Jur. 318) ii. 331 Leith V. Leith (39 N. H. 20) i. 711 ; ii. 123, 144, 173, 199 Leseuer v. Leseuer (31 Barb. 330) ii. 344, 347 Letters v. Cady (10 Cal. 533) i. 224 Levering v. Levering (16 Md. 213) i. 773, 791 Levins v. Sleator (2 Greene, Iowa, 604) 1. 663, 669, 684, 686,692, 693; ii. 199, 706 Lewis V. Lee (3 B. & C. 291) ii. 736 V. Lewis (9 Ind. 105) ii. 253, 334, 338, 346, 642 [651] LOG INDEX TO CASES CITED. LYM Lewis V. Lewis (3 Johns. Ch. 519) ii. 408, 489 V. Lewis (2 Lee, 579) ii. 585 V. Lewis (5 Misso. 278) i. 726, 826 ; ii. 651 u. Lewis (2 Halst. 22) i. 792 V. Lewis (2 Swab. & T. 394) ii. 743 V. Webb (3 Greenl. 326) i. 675 Lewiston v. North Yarmouth (5 Greenl. 66) i. 658 Libby, State v. (44 Maine, 469) i. 497, 502 Liddlow V. Wilmot (2 Stark. 86) i. 570 Light V. Light (17 S. & K. 273) ii. 255 u. Light (1 Watts, 263) ii. 227 Ligonia v. Buxton (2 Greenl. 102) i. 279 Lincecum v. Lincecum (3 Misso. 441) i. 301 Lincoln v. Battelle (6 Wend. 475) i. 424 Linden v. Linden (36 Barb. 61) ii. 317 Lindo V. Belisario (1 Hag. Con. 216) i. 5, 14, 19, 218, 226, 228, 394 Lindsey v. Lindsey (14 Ga. 657) ii. 529, 551 Lippy V. Masonheimer (9 Md. 310) i. 646 Lister's case, (8 Mod. 22) i. 755 Lister, Rex v. (1 Stra. 477) i. 755 Little V. Little (13 Gray, 264) i. 19 Littlejohn, Commonwealth j). (15 Mass. 163) i. 442, 464, 473, 493,499 Livingston v. Maryland Insur- ance Co. (6 Cranch, 274) i. 427 Llewelyn's Divorce Bill (1 Macq. Scotch Ap. Cas. 280) ii. 91, 418 Lloyd V. Lloyd (1 Swab. & T. 567) _ ii. 29, 239 V. Passingham (Cooper 152) i. 450, 465 V. Petitjean (2 Curt. Ec. 251) i. 397, 533 Loader v. Loader (3 Hag. Ec. 150) ii. 342 Lockridge v. Lockridge (2 B. Monr. 528; 3 Dana, 28) i. 719, 734; ii. 354, 355, 358, 427, 428, 430 [652] Lockw6od«. Crawford (18 Conn. 361) i. 430 V. Lockwood (2 Curt. Ec. 281) i. 719, 744; ii. 280, 612, 629, 655, 657, 659 n. Lockwood (Wadd. Dig. 238) i. 392 V. Thomas (12 Johns. 248) i. 578 Lockyer v. Sinclair (8 Scotch Sess. Cas. N. S. 582) i. 237, 239 Lodge V. Hamilton (2 S. & R. 491) ii. 714, 715, 725 Logan V. Logan (2 B. Monr. 142) i. 29, 799; ii. 319, 358, 369, 375, 394, 428, 519, 679 Lolley, Rex v. (Russ & Ry. 237 ; 2 CI. &F. 568) i. 297; ii. 144, ' 181,198 Lomax v. Holmden (2 Stra. 940) i. 152 Londonderry v. Chester (2 N. H. 268) i. 5, 272, 279, 281, 282, 283, 284, 285, 287, 289 Long V. Long (2 Hawks, 189) i. 707, 735 Longfellow v. Longfellow (Clarke, 344) ii. 409, 461, 489 Lord V. Poor (23 Maine, 569) ii. 528 Lord Advocate v. Robertson (1 Eras. Dom. Rel. 53) i. 325 Loring V. Thorndike (5 Allen, 257) i. 398, 418 Lorman v. Clarke (2 McLean, 568) i. 70 Love V. Bentley (11 Mod. 134) i. 466 V. Moynehan (16 111. 277) i. 597 Loveden v. Loveden (2 Hag. Con. 1) ii. 613, 614, 626, 629, 631, 637 V. Loveden (1 Phillim. 208) _ ii. 424, 426 Lovering v. Levering (3 Hag. Ec. 85) ii. 11, 21, 22, 253 Lovettw. Lovett (11 Ala. 763) i. 71; ii. 87, 379, 447, 457,490,513 Lucas V. Lucas (3 Gray, 136) li. 751 V. Lucas (2 Texas, 112) i. 722, 724 V. Parsons (23 Ga. 267) ii. 568 Luffe, Rex v. (8 East, 193) i. 152, 448 Lyle V. Lindsey (5 B. Monr. 123) ii. 75 Lymanw. Mower (2 Vt. 517) i. 670 MAN INDEX TO CASES CITED. MAS Lynch v. Knight (5 Law Times, N. s. 291) i. 593 Lynde v. Lynde (2 Barb. Ch. 72 ; 4 Sandf. Ch. 373) ii. 457 Lyon V. Knott (26 Missis. 548) i. 405 V. Lyon (21 Conn. 185) ii. 311, 376, 381,441,500, 508 V. Lyon (2 Gray, 367) ii. 159, 209, 763 Lyons v. Blenkin (Jacob, 245) ii. 546 Lyster v. Lyster (1 Iowa, 130) i. 832 M. Mace V. Mace (7 Mass. 212) ii. 314 Macfarlane v. Macfarlane (11 Scotch Sess. Gas. n. 8. 533) ii. 51, 52 Mackinley v. McGregor (3 Whart. 369) i. 557 Maelelland v. Fulton (Ferg. Con- sist. Law, 185) i. 730 Macnamara's case (2 Bland, 566) ii. 355 Madden, Reg. v. (14 U. C. Q. B. 588) i. 494 Magee v. Sanderson (10 Ind. 261) i. 424 Maguire v. Maguire (7 Dana, 181) i. 5, 8, 14, 678, 679, 686; ii. 128, 141, 144, 147, 159, 170, 198, 199, 260, 427, 512, 514, 702, 750 Mahone v. Mahone (19 Cal. 626) i. 717, 744, 813 Mahoney v. Ashton (4 Har. & McH. 295) i. 154 Mainwaring v. Leslie (Moody & M. 18 ; 2 Car. & P. 507) i. 620 Malindau. Gardner (24 Ala. 719) i. 156, 157 Malony v. Malony (9 Kob. La. 116) ii. 260 Man's case (Cro. Eliz. 228 ; Sir F. Moore, 907) i. 316 Manby v. Scott (2 Smith Lead. Cas. 245) i. 554 Manchester v. Manchester (24 Vt. 649) ii. 283, 659 Mandigo v. Mandigo (15 Vt. 786) i. 817 Mangue v. Mangue (1 Mass. 240) i. 289,473; ii. 263 Manning v. Clement (7 Bing. 362) ii. 75 Mansfield v. Mansfield (13 Mass. 412) ii. 306, 808 V. Mansfield (26 Misso. 163) ii. 751 V. Mansfield (Wright, 284) i. 783 ; ii. 29, 235, 604, 676 ■ V. Mclntyre (10 Ohio, 27) ii. 161, 169, 701, 707, 711, 754 , Reg. V. (1 Q. B. 444 ; 1 Gale & D. 7) i. 448 Manwairing v. Sands (2 Stra. 706) i. 573 Marbletown v. ICingston (20 Johns. 1) i. 155 March v. March (2 Swab. & T. 49) ii. 6^0 Marlborough v. Hebron (2 Conn. 20) ii. 556 Marlow v. Pitfeild (1 P. Wms. 558) i. 621 Marris v. Marris (2 Swab. & T. 530) ii. 32 Marsh v. Hutchinson (2 Bos. & P. 226) i. 590, 591, 592 V. Marsh (2 Beasley, 281) ii. 38, 40, 319 V. Marsh (1 Swab. & T. 312) i. 734 ; ii. 536, 538 Marshall w. Billingsly (7 Ind. 250) i. 193 V. Eutton (8 T. R. 545) i. 591, 592; ii. 437, 438 Martin's Divorce Bill (1 H. L. Cas. 79) ii. 109 Martin u. Boler (13 La. An. 369) i. 405 V. Carron (2 Dutcher, 228) ii. 133 V. Martin (22 Ala. 86) i. 299, 300, 533, 542 ; ii. 289 U.Martin (4 Halst. Ch. 563) ii. 407 !;. Martin (1 Sm. & M. 176) i. 409, 418 — V. Martin (Wright, 104) ii. 409 Marvin, State v. (35 N. H. 22) i. 473, 483 ; ii. 625, 643 Mary F v. Samuel F (1 N. H. 198) i. 819 Mash. Commonwealth v. (7 Met. 472) . i. 298 Mason v. Crosby (1 Woodb. & M. 342) i. 173 V. Mason (1 Edw. Ch. 278) i. 718, 730, 734, 743 [653] MCC INDEX TO CASES CITED. MCG Mason v. Piggott (11 HI. 85) i. 692 V. Wash (Breese, 16) i. 418 Hasten v. Hasten (15 N. H. 159) ii. 50, 99, 127, 628, 682 Masterton's case (1 Swint. 427) i. Ill Hatchin v. Hatchin (6 Barr. 332 ; 10 Law Reporter, 266) i. 704, 712; ii. 242, 613, 626, 642 Hatthewsu. Hathews (13 La. An. 197) i. 405 V. Hatthews (1 Swab. & T. 499) ii. 108 Hattison v. Hattison (1 Strob. Eq. 387) i. 42 ; ii. 292, 355 Hattocks V. Stearns (9 Vt. 326) li. 712 Mattox V. Hattox (2 Ohio, 233) ii. 76, 80, 87, 253, 255 Haule V. Hounsey (1 Robertson, 40) i. 480 ; ii. 640 Haxwell v. Chapman (8 Barb. 579) i. 46 7i , Commonwealth v. (6 | Law Reporter, 214) li. 529 V. Haxwell (Hilw. 290) i. 457, 488, 506 Hay V. Hay (2 Stra. 1073) i. 466 V. Skey (16 Sim. 588) i. 622 Haybee v. Avery (18 Johns. 352) ii. 638, 639 Hayer v. Foulkrod (4 Wash. C. C. 349) i. 70 Hayhew v. Mayhew (3 H. & ,S. 266; 2PhilIim. 11) ii. 262 , State V. (2 Gill, 487) i. 685 V. Thayer (8 Gray, 172) i. 568, 736 Hayhugh v. Hayhugh (7 B. Honr. 424) i. 722, 726, 767, 768; ii. 38, 428 Hayne v. Baldwin (1 Halst. Ch. 454) ii. 549 Hayrant v. Guignard (3 Strob. Eq. 112) ii. 723 McAdam v. Walker (1 Dow. 148) i. 130, 274 HcCafferty v. HcCafferty (8 Blackf. 218) ii. 107, 318, 343, 379, 513, 706, 710 HcCarthy v. Decaix (2 Russ. & Hyl. 614 ; 2 CI. & F. 568 ; 3 Hag. Ec. 642) iL 182, 183, 294 [654] HcCarty v. HcCarty (2 Strob. 6) i. 42, 43, 515 HeClallen v. Adams (19 Pick. 332) i. 554, 567 HoConnell v. Wenrioh (4 Harris, Pa. 365) ii. 715 HcCormack, People v. (4 Parker, 9) i. 442 McCormick v. HcCormick (7 Leigh, 66) i. 15, 582 MoCosker v. Golden (1 Bradf. 64) ii. 739 HcCoy V. HoCoy (3 Ind. 555) i. 783; ii. 673 HcCraney v. McCraney (5 Iowa, 232) i. 99, 810 ; ii. 682, 706 McGrocklin v. McCrocklin (2 B. Monr. 370) i. 645, 795; ii. 298, 319, 446 HoCubbin v. Patterson (16 Hd. 179) ' i. 646 HcCulloch V. HcCulloch (8 Blackf. 60) li. 243 V. HcCuUock (Ferg. 257) i. 390 HcCuUough V, Robinson (2 Ind. 630) ii. 391 HcCuUum V. Gourlay (8 Johns. 147) ii. 75 HcCutchen v. McGahay (11 Johns. 281) i. 568, 786 HcDaniel v. Cornwall (1 Hill, S. C. 428) i. 581, 584 HcDermott's Appeal (8 Watts & S. 251) i. 786; ii. 173, 175, 210, 249, 682 HcDonald's case (1 Broun, 238) i. 298 McDonald v. Fleming (12 B. Honr. 285) ii. 262, 291 , State V. (25 Misso. 176) i. 497 McDwire v. McDwire (Wright, 354) ii. 38, 50 McElmurray, State v. (3 Strob. 33) i. 514 McEwen v. McEwen (2 Stock. 286) ii. 407, 421 HcFarland v. White (13 La. An. 394) i.412 McGahay v. Williams (12 Johns. 293) i. 568, 786 HcGee v. HcGee (10 Ga. 477) i. 71 ; ii. 356, 386, 398, 400, 406, 409, 429, 445, 457, 459, 461, 489, 508 MCV INDEX TO CASES CITED. MID McGhee v. McGhee (2 Sneed, 221) ii. 453 McGiffert v. McGiffert (31 Barb. 69; 13lnd. 315) i. 711; ii. 123 McGowan V. Caldwell (1 Cranch C. C. 481) ii. 717 McGuire v. Malony (1 B. Monr. 224) ii. 723 V. McGuire (7 Dana, 781) i. 691 Mclnnes v. Moir (Ferg. Consist. Law, App. 126) i. 238 V. More (Ferg. Consist. Law, Rep. 33; 1 Fras. Dom. Rel. 213) i. 234 Molntyre v. Mclntyre (Wright, 135) ii. 344 McKarracher v. McKarracher (3 Yeates, 56) ii. 51, 729 McKay v. McKay (18 B. Monr. 8) i. 814 V. McKay (6 Grant, U. C. Ch. 380) i. 783 ; ii. 366 McKeagy, Commonwealth v. (1 Ashm. 248) ii. 528 McKennan v. Phillips S Whart. 571) i. 653 McKinney v. Clarke (2 Swan, Tenn. 321) i. 176 V. McKinney (1 Blackf. 363) li. 516 V. Pope (3 B. Monr. 93) ii. 75 McKinnon v. McDonald (4 Jones . Eq. 1) i. 582, 585 McLellan, Ex parte (1 Dowl. P. C. 81) ii. 546 McNamara v. Fisher (3 Esp. 18) i. 591,592 McNamara v. McNamara (2 Hil- ton, 547; 9 Abbott Pr. 18) i. 761 ; ii. 317 McNeil V. McNeil (3 Edw. Ch. 550) ii. 176 McNeill V. Arnold (17 Ark. 154) i. 426, 427 McPike, Commonwealth v. (3 Cush. 181) ii. 659 McQuaid v. McQuaid (Wright, 223) ii. 677 McRae v. Mattoon (13 Pick. 53) i. 427; li. 311 McRaven v. McGuier (9 Sm. & M. 34) ii. 744 McVey v. Holden (15 La. An. 317) i. 405 Mead v. Hughes (15 Ala. 141) i. 595 ■, Rex. V. (1 Bur. 542) i. 755 Meadows v. Duchess of Kingston (Amb. 756) ii. 748, 754 Means v. Welles (12 Met. 356) i. 441 Meddowcroft v. Huguenin (3 Curt. Ec. 403; 4 E. F. Moore, 386 ; 4 Knapp, 386) ii. 749, 754, 760, 761, 762 Medway v. Natick (7 Mass. 88) i. 308 V. Needham (16 Mass. 157) i. 308, 362, 371 Meldora v. Meldora (4 Sandf. 721) ii. 302, 409 Melizet v. Melizet (1 Parsons, 78) ii. 399, 425 Mellin v. Mellin <2 E. F. Moore, 493) ii. 269 Mellish V. Decosta (2 Atk. 14) ii. 527 Melton, State v. (Busbee, 49) i. 308 Melville's case (29 Howell St. Tr. 764) i. 441 ; ii. 644 Mendes v. Mendes (3 Atk. 619; 1 Ves. 91) ii. 527 Menkinsu. Lightner (18 111. 282) i. 131 Mercein v. People (25 Wend. 64) i. 650 ; ii. 529, 549, 551 , People V. (3 Hill, N. y. 399 ; 8 Paige, 47) i. 624, 626, 650, 786, 798; ii. 433, 529, 532, 546, 549 Merriam, Commonwealth v. (14 Pick. 518) ii. 625 V. Hartford and New Haven Railroad (20 Conn. 354) ii. 723 Merrill v. Sherburne (1 N. H. 199) i. 670, 672, 675, 677, 682 Merritt v. Merritt (20 111. 65) i. 427 Merry v. Merry (12 Mass. 312) ii. 173, 255 Methodist Church \. Jaqnes (1 Johns. Ch. 450) ii. 369 Methvin v. Methvin (15 Ga. 97) ii. 375, 406 Meyar v. Meyar (3 Met. Ky. 298) ii. 260,;314, 421 Meyer v. Haworth (8 A. & E. 467) i. 591 Michelson v. Michelson (3 Hag. Ec. 147) ii. 17, 23 Middleborough v. Rochester (12 Mass. 363) i. 95, 105, 124, 127, 136 [655] MIN INDEX TO CASES CITED. MOO Middlebnry College v. Cheney, (1 Vt. 336) ■ i. 414, 418 Middleton v. Croft (2 Stra. 1056 ; 2 Atk. 650) i. 51 V. Janverin (2 Hag. Con. 437) i. 361, 533 V. Middleton (2 Hag. Eg. Supp. 134) ii. 253, 316 Miles V. Boyden (3 Pick. 213) ii. 527 V. Chilton (1 Kobertson, 684) i. 5, 149, 299, 300; ii. 294, 386, 402, 404, 580 V. Mile^ (2 Jones Eq. 21) ii. 256 Milford V. Worcester (7 Mass. 48) i. 279, 383, 285, 289, 450, 463, 473 Miller's Appeal (6 Casey, 478) i. 214 Miller V. Commonwealth (5 Watts & S. 488) i. 99, 675 V. Marckle (21 111. 152) i. 214 V. Miller (3 Binn. 30) ii. 260 V. Miller (6 Johns. Ch. 91) ii. 449, 457, 472 V. Miller (1 Sandf. Ch. 103) ii. 717 V. Miller (Saxton, 386) i. 649, 786, 795, 806 ; ii. 282, 354, 369,401, 472,495 0. Miller (2 Swab. & T. 427) ii. 258 V. Moore (1 C. P. Smith, N. Y. 739) i. 101 Milliner v. Milliner (Wright, 138) ii. 677 Millis, Keg. v. (10 CI. & F. 534) i. 54, 56, 112, 207, 218, 249, 253, 254, 259, 261, 263, 270, 272, 273, 275, 277, 281, 392,495 Mills V. Duryee (7 Cranch, 481) ii. 701 Milner v. Milner (2 Edw. Ch. 114) ii. 319 Miltimore v. Miltimore (4 Wright, Pa. 151) ii. 706 Mima Queen v. Hepburn (7 Cranch, 290) i. 540 Minard v. Mead (7 Wend. 68) i. 557 Miner v. Medbury (6 Wis. 295) i. 209 Miners Bank v. United States (1 Greene, Iowa, 553) i. 681 Minor V. Neal (1 Barr, 403) i. 344 MinshuU, Hex. v. (1 Nev. & M. 277) i. 173 [656] Mitchel, United States v. (3 Wash. C. C. 95) i. 478 Mitchell V. Cowgill (4 Binn. 20) i. 344 V. Mitchell (1 Spinks, 102) ii. 496 V. Mitchell (11 Vt. 134) i. 438, 489 ; li. 269 V. Treanor (11 Ga. 324) i. 620 Mix V. Mix (1 Johns. Ch. 108) ii. 354, 398, 406, 461, 489 V. Mix (1 Johns. Ch. 204) ii. 332, 344 Moffat's case (Macqueen H. L. Pract. 658) ii. 91 Moffatt, Commonwealth v. (2 Dane Ab. 296) i. 499 V. Moffat (5 Cal. 280) ii. 128 Mogg V. Mogg (2 Add. Ec. 292) i. 739 ; ii. 640 Molony v. Molony (2 Add. Ec. 249) i. 789, 790, 804 Money u. Money (1 Spinks, 117) ii. 413 Monroe v. Douglass (1 Seld. 447) i. 411, 418 V. Twistleton (Peake Ev. App. ed. of 1822, p. 39 ; Peake Ad. Cas. 219) ii. 723 Monroy v. Monroy (1 Edw. Ch. 382) ii. 461 Monson v. Williams (6 Gray, 416) i. 5G6, 623 Montague v. Baron (5 D. & R. 532) i. 554 V. Benedict (3 B. & C. 631) i. 553, 554, 556 V. Espinasse (1 Car. & P. 356) i. 554 V. Montague (2 Add. Ec. 372) ii. 309 V. Montague (2 Add. Ec. 375) i. 523, 533 ; ii. 262 Monteith v. Eobb (6 Scotch Sess. Cas. N. s. 934) i. 265 Montgomery v. Montgomery (3 Barb. Ch. 132) i. 190; ii. 107, * 241, 306, 307, 559, 573 Mooers v. Bunker (9 Post. N. H. 420) i. 540 Moore v. Commonwealth (9 Leigh. 639) i. 473 V. Guest (8 Texas, 117) ii. 328 V. Gwynn (5 Ire. 187) i. 418 MOK INDEX TO CASKS CITED. MOT Moore v. Moore (1 Atk. 272) ii. 741 V. Moore (3 E. F. Moore, 84) i. 804 ; ii. 610 ■ V. Moore (2 Mass. 117) ii. 173, 255 «. Moore (22 Texas, 237) ii. 258 , Reg. V. (16 Jur. 752) i. 131 , State V. (11 Ire. 160) i. 462 , State V. (3 West. Law Jour. 134) i. 116, 299 V. Stevenson (27 Conn. 14) i. 596 V. Thompson (6 Misso. 853) i. 173 V. Whitaker (2 Harring. Del. 50) i. 658 Moores V. Carter (1 Hemp. 64) i. 582, 608 Moorsom v. Moorsom (3. Hag. Ec. 87) ii. 5, 6, 7, 14, 15, 17, 19, 21, 26, 85, 88, 346 Morales v. Marigny (14 La. An. 855) , 402, 406 Morgan v. Groff (5 Denio, 364) ii. 75 V. Hopkins (2 Phillim. 582) ii. 217, 281 V. Hughes (20 Texas, 141) i. 560, 619 V. McGhee (5 Humph. 13) i. 223j 355 V. Morgan (2 Curt. Ec. 679) . ii. 8, 88, 297 V. Pettit (3 Scam. 529) ii. 702 V. Purnell (4 Hawks, 95) i. 540 V. State (U Ala. 289) i. 314, 315 Morrell v. Morrell (1 Barb. 318) ii. 99, 256, 334, 347, 604, . 605, 606 V. Morrell (3 Barb. 236) ii. 99, 253, 345 Morrill V. Morrill (2 Barb. 480) ii. 421, 459 Morris, Commonwealth v. (1 • Cush. 391) i. 266, 471, 473, 476, 478 V. Daveis (3 Car. & P. 215) i. 448 V. Daveis (5 CI. & F. 163) i. 447, 448 'V. Low (4 Stew. & P. 123) ii. 528 VOL. II. 42 Morris v. Martin (1 Stra. 647) i. 573 V. Miller (4 Bur. 2057, 1 W. Bl. 632) i. 441, 442, 445, 490, 491 V. Morris (20 Ala. 168) i. 718, 825; ii. 268, 326 V. Morris (14 Cal. 76) i. 717, 718, 719 V. Morris (9 Printed Cases, 91) i. 333 V. Morris (Wright, 630) i. 191, 215 — V. Palmer (39 N. H. 123) ii. 389, 398 V. Webber (2 Leon. 169 ; Sir F.Moore, 225) i. 113; ii. 694, 754 Morrison v. Holt (42 N. H. 478) ii. 389 U.Morrison, 20 Cal. 431) i. 777; ii. 673 Morse v. Morse (2 Hag. Ec. 608) ii. 629 V. Welton (6 Conn. 547) ii. 528 Mortimer v. Mortimer (2 Hag. Con. 310) i. 634, 806 ; ii. 103, 234, 241, 242, 245, 342 Mortimore v. Wright (9 Lond. Law Jour. 158) ii. 528 Morton v. Morton (4 Cush. 518) ii. 202, 376, 499 Morton, Rex v. (Russ. & Rj. 19) i. 451 V. Withens (Skin. 348) i. 554 Moseley, Rex v. (5 East, 224) ii. 529 Moses V. Fogartie (2 Hill, S. C. 335) i. 586 V. State (11 Humph. 232) i. 314 Moss V. Davidson (1 Sm. & M. 112) i. 209 u. McCall (12 Ala. 630) i. 640 V. Moss (2 Ire. 65) i. 191, 707, 779, 825; ii. 90,227, 335 Mosser v Mosser (29 Ala. 313) i. 793; ii. 282, 346, 367, 613, 646 Mostyn v. Fabrigas (1 Cowp. 174) i. 629 Motley V. Motley (31 Maine, 490) i. 827, 834, 835 Mott V. Comstock (8 Wend. 544) i. 560, 619, 620 [657] NAU INDEX TO CASES CITED. NOG Motteram v. Motteram (3 Bulst. 264) ii. 732 Moulton V. Moulton (2 Barb. Ch. 309) i. 764; ii. 107 V. Moulton (13 Maine, 110) ii. 642 Mount Holly v\ Andover (11 Vt. 226) i. 105, 205, 219, 245 Moyler v. Moyler (11 Ala. 620) i. 71, 718, 719, 722, 726, 748; ii. 250, 282 Mudway v. Croft (3 Curt. Ec. 671) i. 126 Mulrhead v. Muirhead (23 Missis. 97) i. 542 Mulford V. Young (6 Ohio, 294) i. 557 Mullen V. Morris (2 Barr, 85) i. 424 MuUer v. Hilton (13 La. An. 1) i. 682, 774 Mulock V. Mulook (1 Edw. Ch. 14) ii. 258, 327, 495, 614, 624 Munro v. Saunders (6 Bligh, 468) i. 355 Murgatroyd v. Watkinson (T. Jones, 191) i. 316 Murphy, State v. (6 Ala. 765) i. 214, 279, 283 Murray, Commonwealth v. (4 Binn. 487) li. 528 V. Barlee (3 Myl. & Keen, 209) ii. 438 V. McLaucUan (1 Scotch Sess. Cas. n. S. 294) i. 810 Murtagh, Commonwealth v. (1 Ashm. 272) i. 497, 500 Myers v. Myers (2 McCord Ch. 214) ii. 528 Mytton V. Holyoake (Maepherson on Infants, 149) ii. 529 V. Mytton (3 Hag. Ec. 657) ii. 450, 457, 465 N. N. V. M. (2 Robertson, 625) i. 335 ; ii. 588 Nace V. Beyer (6 Casey, 99) i. 194 Nagle V. Nagle (1 2 Misso. 53) ii. 95 Nalle V. Fenwick (4 Rand. 585) i. 516 Nash V. Nash (1 Hag. Con. 140) i. 777, 806 ; ii. 234, 628 , State V. (8 Ire. 35) ii. 280 Naulet V. Dubois (6 La. An. 403) i. 798 [658] Neagle v. Neagle (12 Misso. 53) it. 87 Nealw. Farmer (9 Ga. 555) i. 154 V. Her Husband (1 La. An. 315) ii. 128 Neale v. Caldwell (3 Stew. 134) ii. 744 Neeld v. Neeld (4 Hag. Ec. 263) i. 717, 719, 727, 734, 758; ii. 38 Neil V. Johnson (ll Ala. 615) ii. 369 V. Neil (4 Hag. Ec. 273) ii. 430, 450, 451, 457, 489 Nelson v. Bridport (8 Beav. 527) i. 429 u. Evans (1 Dev. 9) ii. 639 Newbiggin v. Pillans. (2 Bay, 162) i. 584 Newbury v. Brunswick (2 Vt. 151) i. 279, 283, 390 Newburyport v. Boothbay (9 Mass. 414) i. 443 Newell V. Newell (9 Paige, 25) i. 332; ii. 594,595 Newham v. Raithby (I Phillim. 315) i. 465 Newhouse v. Commonwealth (5 Whart. 82) ii. 438 Newman v. Jenkins (10 Pick. 515) i. 452 Newport V. Cook (2 Ashm. 332) ii. 528 Newsome v. Bowyer (3 P. Wms. 31) i. 588 Newton v. Cocke (5 Eng. 169) i. 414 Newton, Reg. v. (2 Moody & R. 503) i. 497, 500, 530, 532 Nicholls V. Danvers (2 Vern. 671) ii. 353 Nichols V. Nichols (31 Vt. 328) i. 712 V. Palmer (5 Day, 47) i. 642 — ■ V. Stewart (15 Texas, 226) i. 658 Nickols V. Giles (2 Root, 461) ii. 546 Nightingale v. Withington (15 Mass. 272) ii. 528 Nikirk v. Nikirk (3 Met. Ky. 432) ii. 366 Niles V. Sprague (13 Iowa, 198) i. 468, 474 Nixon V. Brown (4 Blaokf. 157) i. 494, 523 V. The Office (Milward, 390) ii. 158 Noel V. Ewing (9 Ind. 37) i. 9 ; ii. 199 Nogees v. Nogees (7 Texas, 538) i. 71, 724, 726 ; ii. 58, 72, 651 OLA INDEX TO CASES CITED. OWE Nokes V. Mil-ward (2 Add. Eo. 386) i. 37], 465, 478, 533 ; ii. 265, 294 Norcross, Commonwealth v. (9 Mass. 492) i. 442, 479 494 c. Kodgers (SO Vt. 588) i. 582, 614 Norfolk's case, Duke of (13 Howell St. Tr. 1334) i. 29 Norfolk V. Germaine (12 Howell St. Tr. 929) ii. 625 Norman v. Heist (5 Watts & S. 171) i. 678,-683 Norris v. Norris (27 Ala. 519) ii. 503 North V. North (1 Barb. Ch. 241) i. 71, 74, 508 ; ii. 398, 402, 403, 421 V. North (5 Mass. 320) ii. 340 Northey v. Cock (2 Add. Ec. 294) i. 483 Northfield v. Plymouth (20 Vt. 582) i. 279, 283, 453, 469, 479, 504, 508, 513 V. Vershire (33 Vt. ■ 110) i. 442 Norton B. Fazan (1 Bos. & P. 226) !. 673 V. Norton (2 Aikens, 1-88) i. 332 V. Rhodes (18 Barb. 100) i.,566, 623 V. Seton (3 Phillim. 147) i. 53, 113, 300, 331 ; ii. 580, 581, 582, 585, 596, 598, 749 Norwood's case (1 East, P. C. 337) i. 497 Noverre v. Noverre (1 Robert- son, 428) ii. 241, 242, 245 Nurse v. Craig (5 B. & P. 148) ii. 401 Nutt, Commonwealth v. (1 Browne, Pa. 143) ii. 529 Nutting V. Herbert (37 N. H. 346) ii. 259 O. Cakes v. Hill (14 Pick. 442) i. 470 O'Bryan v. O'Bryan (13 Misso. 16) ii. 233, 258, 644 Officer V. Young (5 Yerg. 320) i. 671 Ohio V. Connoway (Tappan, 58) i. 777 Oland'scfcse (5 Co. 116) ii. 692 Oldham V. Henderson (5 Dana, 254) ii. 712 V. Oldham (7 Ves. 410) ii. 506 Olin V. Hungerford (10 Ohio, 268) i. 71 ; ii. 498, 501, 761 Oliver V. Heathcote (2 Add. Ec. 36) ii. 281 V. Oliver (5 Ala. 75) ii. 380 V. Oliver (I Hag. Con. 361) i. 722, 729, 730, 734, 754, 804 V. Oliver (20 Misso. 261) ii. 256 V. Sale (Quincy, 29) i. 166, 279 Olmstead, People v. (27 Barb. 9) ii. 546, 548 Opinion of the Judges (5 Met. 587_) ii. 119 Opinion of the Supreme Court (16 Maine, 479) i. 669, 678, 684 ; ii. 199 Opinion of the Supreme Court (16 Maine, 481) ii. 230 Orde V. Murray (8 Scotch Sess. Cas. N. 8. 536) ii. 148 Orgill; Reg. V. (9 Car. & P. 80) i. 212, 542 Orme v. Orme (2 Add. Ec.-382) i. 738, 771, 777, 778 Ormsby v. Ormsby (1 Philad. 578) ii. 498 Orrok v. Orrok (1 Mass. 341) ii. 346, 472, 498 Ortega, United States v. (4 Wash. C. C. 531) i. 426, 427 Osborn v. Allen (2 Dutcher, 388) ii. 527 Osborne v. Moss (7 Johns. 161) i. 173 , Reg. V. (Car. & M. 622) ii. 659 Osgood V. Osgood (2 Paige, 621) ii. 395, 408, 409, 489 Ott V. Soulard (9 Misso. 673) i. 417 Otway V. Otway (2 Phillim. 95) i. 726, 730 V. Otway (2 Phillim. 109) ii. 375, 429, 445, 457, 459 462, 463, 465 Owen V. Boyle (16 Maine, 147) i. 409, 412, 418, 426 17. Hudson River Railroad (2 Bosw. 374) ii. 75 V. Owen (4 Hag. Ec. 261) ii. 244, 245 [ 659 ] PAT INDEX TO CASES CITED. PEM Owen V. White (5 Port. 435) ii. 628 Owens V. Ranstead (22 111. 161) i. 84 Owings V. Hull (9 Pet. 607) i. 423 Oxenden v. Oxenden (1 Gilb. Ch. 1 ; 2 Vern. 493) ii. 853 Oxenham v. Gayre (Bacon Ab. tit. Mar. & Div.) i. 314, 317 Ozard V. Darnford (1 Selw. N. P. 11th ed. 294) i. 570 Packard v. Hill (2 Wend. 411) i. 424 Paddock v. Wells (2 Barb. Ch. 831) i. 814 PaflF V. PaflF (Hopkins, 584) ii. 428, 489 Page V. Dennison (1 Grant, 377, 5 Casey, 420) i. 187, 447, 448, 548 V. Estes (19 Pick. 269) ii. 522, 715, 732, 735 Paine, State v. (4 Humph. 523) ii. 529, 546 Painterw. Weatherford (1 Greene, Iowa, 97) i. 586 Palmer v. Crook (7 Gray, 418) i. 626; ii. 661 V. Palmer (1 Paige, 276) 1. 761; ii. 235, 877 V. Palmer (1 Swab. & T. 551) ii. 131 V. Palmer (2 Swab. & T. 61) ii. 64 Parhara v. Parham (6 Humph. 287) i. 655 Park V. Baron (20 Ga. 702) i. 125, 283, 306 ; ii. 704 Parker v. Lambert (31 Ala. 89) i. 640 V. Parker (2 Lee, 882) i. 130, 136 ; ii. 563, 564 Parkhurst v. McGraw (24 Missis. 134) ii. 572 Parnell v. Parnell (2 Hag. Con. 169) i. 130; ii. 305 V. Parnell (2 Phillira. 158) ii. 44 Parsons v. Parsons (9 N. H. 309) i. 24, 71, 582; ii. 851, 356, 876, 398, 441, 502 Parton v. Hervey (1 Gray, 119) i. 144, 145, 283, 285, 294 Pastoret v. Pastoret (6 Mass. 276) " ii. 334, 341 Patchett V. Holgate (3 Eng. L. 6 Eq. 100 ; 15 Jur. 808) i. 447, 547 [6601 Paterson v. Paterson (7 Bell. Ap. Cas. 337; 12 Eng. L. & Eq. 19) i. 722, 723 V. Paterson (1 Halst. Ch. 889) ii. 398,- 461 Patrick v. Patrick (3 Phillim. 496) i. 228 Patterson v. Gaines (6 How. U. S. 550) i. 105, 299, 355, 494, 496, 497 ; ii. 289, 689, 764 , State V. (2 Ire. 346) i. 228", .856, 425, 527 Patton V. Massey (2 Hill, S. C. 475) ii. 744 V. Philadelphia (1 La. An. 98) i. 218, 253, 254, 279, 302 Paul, Ex parte (7 Hill, N. Y. 56) i. 809 Paul V. Frazier (3 Mass. 71) ii. 75 Pawlett V. Clark (9 Cranch, 292) i. 68 Pawling V. Bird (13 Johns. 192) ii. 128, 141, 144 V. Willson (18 Johns. 192) ii. 556 Payne v. Payne (4 Humph. 600) i. 750; ii. 457, 474, 610 V. Smith (20 Ga. 654) i. 209 Payson v. Payaon (84 N. H. 518) I. 778; ii. 178, 682 Peacock v. Peacock (1 Swab. & T. 183) ii. 47, 67 Peak V. Ligon (10 Yerg. 469) i. 404 Pearman v. Pearman (1 Swab. & T. 601) i. 754 ; ii. 82 Pearne v. Lisle (|Amb. 75) ii. 505 Pearson v. Darrmgton (82 Ala. 227) 1. 578 ; ii. 138, 421 V. Howey (6 Halst. 12) i. 279, 283, 285, 289, 291, 443 Pease v. Naylor (5 T. R. 80) ii. 760 Peat's case (2 Lewin, 288) i. 248 Peck V. Hibbard (26 Vt. 698) i. 409, 418 Peckford v. Peckford (1 Paige, 274) ii.88, 467,472,495 Peeples v. Peeples (19 111. 269) ii. 813 Pegram u. Isabell (2 Hen. & M. 193) i. 542 Pellew V. Pellew (1 Swab. & T. 553) ii. 108 Peltier v. Peltier (Harring. Mich. 19) ii. 802, 856 Pemberton v. Pemberton (2 Notes Cas. 17) ii. 429, 448 PHE INDEX TO CASES CITED. PIN Pence v. Pence (6 B. Monr. 496) ii. 260, 379, 514 Pennycook v. Grinton (Ferg. Consist. Law, Rep. 29) i. 254, 259 Penson, Kex v. (5 Car & P. 412) i. 297 Peppinger v. Low (1 Halst. 384) i. 502 Perishalt). Squire (1 Dick 31) ii. 385 Perkins v. Eaton (3 N. H. 152) ii. 75 , Ex parte (18 Cal. 60) ii. 421, 498 ■ «. Perkins (6 Mass. 69) ii. 51 V. Perkins (2 Paige, 621) ii. 395 V. Potts (8 La. An. 14) i. 774 Perrin v. Perrin (1 Add. Ec. 1) i. 179, 804; ii. 635 Perry v. Block (1 Misso. 484) i. 463 V. Meddowcroft (10 Beav. 122) ii. 756, 761, 762 U.Perry (1 Barb. Ch. 516) i. 736, 761 V. Perry (2 Barb. Ch. 285) ii. 236, 410 V. Perry (2 Barb. Ch. 311) 1. 761 ; ii. 377 V. Perry '(2 Paige, 501) i. 71, 73, 105, 166, 178, 323, 717, 754, 761; ii. 291 Perryman, Commonwealth v. (2 Leigh, 717) i. 314, 319 Person v. Person (6 Humph. 148) ii. 210 Persons v. Persons (7 Humph. 183) ii. 439 Perth Peerage case (2 H. L. Cas. 865) i. 478 Pertreis v. Tondear (1 Hag. Con. 136) ii. 309 Peter v. Wright (6 Ind. 183) i. 209 Pettingill v. McGregor (12 N. H. 179) i. 438, 443 Pettit, Matter of (2 Paige, 174) ii. 159 Pettitt V. Pettitt (4 Humph. 191) i. 130 Phalen v. Virginia (8 How. U. S. 163) i. 667 Phelan's case (6 N. Y. City Hall Eee. 91) i. 442, 446, 499 Phelps V. Phelps (7 Paige, 150) ii. 260, 311 , State u. (2 Tyler, 374) ii. 723 Phelps V. Townsend (8 Pick. 392) ii. 528 Philbrick V. Philbrick (27 Vt. 786) ii. 296 V. Spangler, (15 La. An. 46) i. 436, 541 Phillips V. Allen (2 Allen, 453) i. 186, 447, 448, 548 V. Gregg (10 Watts, 158) i. 355, 523, 535 V. Kelly (29 Ala. 628) ii. 661 ■ V. Phillips (4 Blackf. 131) ii. 38, 56 V. Phillips (1 Robertson, 144 ; 10 Jur. 829 ; 4 Notes Cas. 523) i. 63 ; ii. 5, 6, 7, 8, 9, 10, 14, 15,16, 21,22, 26, 88,253, 637, V. State (9 Humph. 246) ii. 659 Piatt V. Piatt (9 Ohio, 37) ii. 441, 498, 751 Pickard v. Bailey (6 Post. N. H. 152) i. 418 Pickering v. Fisk (6 Vt. 102) i. 533 Picket V. Johns (1 Dev. Eq. 123) i. 651 Picton, Rex v. (30 Howell St. Tr. 491) i. 428 , Rex V. (30 Howell St. Tr. 509) i. 529 Pidge V. Pidge (3 Met. 257) i. 722, 783, 793, 795 Pidgin V. Cram (8 N. H. 350) i. 579 ; ii. 528 Pierce v. Burnham (4 Met. 303) ii. 737 V. Pierce (3 Pick. 299) ii. 5, 9 Piers V. Piers (2 H. L. Cas. 331) i. 13, 251, 294,451,457,458, 471,509 Pillow, People v. (1 Sandf. 672) ii. 549 Pinckard v. Pinckard (22 Ga. 31) ii. 384, 445 V. Pinckard (23 Ga. 286) ii. 421, 497, 498 Pinckston v. Brown (3 Jones Eq. 494) i. 214 Pinkard u. Pinkard (14 Texas, 356) i. 726, 784 ; ii. 259 Pinkney v. Pinkney (4 Greene, Iowa, 324) ii. 314, 685 Pinkston v. McLemore (31 Ala. 308) i. 640 [661] POT INDEX TO CASES CITED. PUR Pirate v. Dalby (1 Dall. 167) i. 154 Pitt V. Smith (3 Camp 33) i. 131 Piatt V. Powles (2 M. & S. 65) i. 152 PJummer v. Brandon ( 5 Ire. Eg. 190) ' li. 123 V. Plummer (37 Missis. 185) ii. 314 V. Webb (Ware, 75) ii. 528 Pollack V. Pollack (2 Swab. & T. 648) ii. 32 Pollard V. Wybourn (1 Hag. Ec. 725) i. 337; li. 30, 582, 585, 595, 596, 598 Polydore v. Prince (Ware, 402) i. 405 Pomeroy v. Pomeroy (1 Johns. Ch. 606) ii. 327 V. Wells (8 Paige, 406) i. 565 ; ii. 141, 144, 356 Pomfret v. Pomfret , (2 Phillim. 40) ii. '463 Ponder v. Graham (4 Fla. 23) i. 300, 537, 666, 686 Ponsford v. Johnson (2 Blatch. 51) i. 374; ii. 701, 702 Pool V. Everton (5 Jones N. C. 241) i. 620 V. Pool (2 Phillim. 119 ii. 331 V. Pratt (1 D. Chip. 252) i. 143, 144, 293 , State V. (2 lud. 227) i. 346 Poor V. Poor (8 N. H. 307) i. 729, 754, 764, 767, 800 Popkin V. Popkin (1 Hag. Ec. 765, note) i. 735 ; ii. 38, 47, 52, 70, 340, 632 Porter v. Bobb (25 Misso. 36) i. 620 , People V. (1, Duer, 709) ii. 529, 549, 551 Portland v. Pl-odgers (2 Vern. 104) i. 588 Portsmouth v. Portsmouth (3 Add. Ec. 63) ii. 402, 409 V. Portsmouth (1 Hag. Ec. 355) i. 124, 134, 166, 195, 211 ; ii. 305, 565 Portynton v. Steinbei^h (10 CI. & F. 841) i. 254 Proteet, State v. (8 Ire. 23) ii. 613 Potier V. Barclay (15 Ala. 439) i. 228, 629 ; ii. 730 [662] Poultney v. .Fairhaven (Brayt. 185) i. 446, 494 Povey, Reg. v. (14 Eng. L. & Eq. 549 ; 6 Cox C. C. 83 ; 1 Dears C. C. 32) i. 530 Powell V. Cobb (3 Jones Eq. 456) i. 193, 194 V. Powell (27 Missis. 783) ii. 563, 702 V. Powell (29 Vt. 148) i. 789 V. Weeks (Noy,,108) ii. 730' Prather v. Clarke (1 Tread. 453) li. 738 V. Prather (4 Des. 33) ii. 302, 355, 359, 361, 472, 501, 508, 531 Pratt V. Bacon (10 Pick. 123) i. 70 Prentiss v. Tudor (1 Hag. Con. 136 i. 395 Prescott V. Fisher (22 111. 390) i. 597 Ptessley v. McDonald (1 Rich. 27) i. 582,607 Preston v. Bowers (13 Ohio State, 1) i. 626 Prevost, Succession of (4 La. An. 347) i. 218, 279 Price, In re, (2 Post & F. 263, 263) i. 786 V. Clark (3 Hag. Ec. 265) i. 53? ; ii. 637 V. Price (10 Ohio State, 316) ii. 260 V. Sessions (3 How. U. S. 624) i. 675 ; ii. 714 Priestly v. Hughes (11 East, 1) i. 293 Prince's case, The (8 Co. 28 a) i. 421 Prince v. Prince (1 Rich. Eq. 282) ii. 269, 355, 358, 369, 446, 457 Proctor V. Proctor (2 Hag. Con. 292) i. 53 ; ii. 76, 80 Prothro v. Smith (6 Rich. Eq. 324) ii. 75 Prudham v. Phillips (cited Amb. 763; 1 Harg. Law Tracts, 456 ; 2 Burn Ec. Law, 495) i. 56 ; ii. 763, 754, 760 Pugsley V. Pugsley (9'Paige, 589) li. 338 Pulliam V. PuUiam (1 jFreeman, Missis. 348) i. 751 Purcell V. Purcell (3 JEdw. Ch. 194) ii. 395 BEA INDEX TO CASES CITED. REN Purcell V. Purcell (4 Hen. & Munf. 507) i. 513 ; ii. 268, 355, 358, 361, 362, 386, 398, 427, 461,498 Putnam, Commonwealth v. (1 Pick. 136) li. 700 V. Johnson (10 Mass. 488) ii. 123 V. Putnam (8 Pick. 433) i. 362, 371 ; li. 701 Pyne v. Pyne (1 Swab. & T. 'l78) ii. 282 Q. Quarles v. Quarles (19 Ala. 363) ii. 47, 326 Questel v. Questel (Wright, 491 and 492) ii. 38, 50, 59, 354, 504 Quincy v. Quincy (10 N. H. 272) i. 71 ; ii. 33, 37, 38, 40, 43, 56, 398 Quinn v. Quinn (16 Vt. 426) ii. 639 K. Ramsay v. McCanley (2 Texas, 189) i. 409, 412 Randall's case (5 N. Y. City Hall .Recorder, 141) i. 226 Randall v. Randall (4 Greenl. 326) ii. 639 — : V. Randall (7 Mass. 502) ii. 311 Ratoliff w. Ratcliif (1 Swab. & T. 467) ii. 34, 82, 171, 239, 270, 477 V. Wales (1 Hill, N. Y. 63) ii. 723, 724 Rathbone v. Rathbone (4 Pick. 89) i. 84 Rawdon v. Rawdon (28 Ala. 565) i. 105, 124, 136; ii. 105 Ray V. Sherwood (1 Curt. Ec. 173 ; 1 E. F. Moore, 353) i. 110, 316; ii. 309 V. Sherwood (1 Curt. Ec. 193 ; 1 E. F. Moore, 353) i. 109, 111, 119, 298 Raynham v. Canton (3 Pick. 293) i. 424, 425, 439, 524 Read v. Bertrand (4 Wash. C. C. 514) ■ ii. 122 V. Brookman (3 T. R. 151) i. 516 Read v. Jewson (stated 4 T. R. 362) i. 581 V. Legard (15 Jur. 494; 4 Eng. L. & Eq. 523 ; 6 Exch. 636) i. 554, 557, 565, 570 «. Read (1 Ch. Cas. 115) ii. 506 Reading, Rex v. (Cas. temp. Hardw. 79) i. 447, 547 Reavis v. Reavis (1 Scam. 242) ii. 256, 365, 379, 497 Reddall v. Leddiard (3 Phillim. 256) i. 294 Reddick v. Jones (6 Ire. 107) i. 402 Reed v. Beazley (1 Blackf. 97) i. 644 V. Hudson (13 Ala. 570) i. 524 V. Passer (Peake, 231 ; 1 Esp. 213) i. 434, 465 V. Reed (Wright, 224) i. 784 Reemie v. Reemie (4 Mass. 586) ii. 628, 639 Rees V. Rees (23 Ala. 785) i. 727 ; li. 472, 657 V. Rees (3 Phillim. 387) ii. 334, 424, 430, 445, 447, 450, 457, 459, 460, 494 V. Waters (9 Watts, 90) i. 582, 606; ii. 351, 356 Reese v. Chilton (26 Misso. 598) i. 557, 568, 620 V. Harris (27 Ala. 301) i. 413 V. Reese (23 Ala. 785) ii. 52, 255, 661 Reeve v. Conyngham (2 Car. & K. 444) i. 554 Reeves v. Reeves (2 Phillim. 125) i. 179, 804; ii. 5, 9, 23, 88 V. Reeves (3 Swab. & T. 139) i. 746 Reichart v. Castator (5 Binn. 109) i. 173 Reid V. Laing (1 Shaw Ap. Cas. 440) i. 253 Reist V. Heilbrenner (11 S. & B. 131) i. 84 Reneaux v. Teakle (8 Exch. 680 ; 20 Eng. L. & Eq. 345) i. 556, 560 Bennick V. Chloe (7 Misso. 197) i. 411 V. Ficklin (3 B. Monr. 166) . i. 618 Bennington v. Cole (Noy, 29) i. 112, 116 [663] RIC INDEX TO CASES CITED. KOB Renwick v. Renwick (10 Paige, 420) ii. 712, 714, 733 Republic V. Skidmore (2 Texas, 261) ii. 128 Revel V. Fox (2 Ves. Sen. 269) i. 437, 513 Reynolds v. Hall (1 Scam. 35) i. 402 V. Reynolds (3 Allen, 605) i. 177, 181, 183, 184, 185, 186 V. Reynolds (24 Wend. 193) i. 627 Rhame v. Rhame (1 McCord. Ch. 197) i. 31, 719, 730; ii. 87, 359, 361 Rhea V. Rhenner (1 Pet. 105) i. 608 Rice V. Lumley (10 Ohio State, 596) ii. 706 V. Parkman (16 Mass. 326) i. 681 V. Rice (6 Ind. 100) i. 725 ; ii. 516 V. Rice (13 Ind. 562) ii. 501 V. State (7 Humph. 14) i. 463, 473 V. Tarver (4 Ga. 571) ii. 255 Richards u. Richards (1 want, Pa. 389) i. 717, 729, 743, 745, 757 V. Richards (1 Wright, Pa. 225) i. 745, 764 ; ii. 286 V. Richards (Wright, 302) ii. 604 Richardson v. Richardson (1 Hag. Ec. 6) ii. 25, 342, 612, 620 V. Richardson (2 ■ Mass. 153) ii. 128, 173, 255 V. Richardson (32 Maine, 560) ii. 549 V. Richardson (4 Port. 467) ii. 94, 250, 302, 365, 366, 399,613,614, 621, 626, 616 V. Wilson (8 Yerg. 67) i. 692; ii. 359, 376, 379, 382, 513, 629 Richmond v. Patterson (3 Ohio, 368) i. 475, 533 V. Richmond (1 Green Ch. 90) ii. 429, 445, 472, 495, 532, 652, 553 V. Richmond (10 Yerg. 343) ii. 255, 256, 258, 282, 346 Rickeru. Ricker (29 Maine, 281) i. 827, 834 Ricketts v. Ricketts (4 Gill, 105) ii. 398, 425, 445, 457, 463, 472, 502 [664] Ricketts v. Taylor ( 1 Hag. Con. 299) ii. 627 Rigg V. Curgenven (2 Wils. 395) i. 498 Ringer v. Churchill (2 Scotch Sess. Cas. n.;8. 307) ii. 149 Ringgold V. Barley (5 Md. 186) ii. 123 Ringstead v. Lanesborojugh (3 Doug. 197) " i. 590, 591 Ripple V. Ripple (1 Rawle, 386) i. 415 Risher v. Thomas (2 Misso. 98) i. 84 Ristine v- Ristine (4 Rawle, 460) i. 71 ; ii. 95, 345, 346 Ritter v. Ritter (5 Blackf. 81) i. 191, 830; ii. 293, 687 Rix V. Rix (3 Hag. Ec. 74) ii. 6, 14, 17, 26, 614 Roach V. Garvan (1 Ves. sen. 157) i. 396 ; ii. 527, 701, 754, 760 Robalina v. Armstrong (15 Barb. 247) ii. 550 Robards v. Hutson (3 McCord, 475) i. 581, 607 Robbarts v. Robbarts (9 S. & R. 191) ii. 260 Bobbins, State v. (6 Ire. 23) i. 283, 287, 494, 495 Roberts v. State Treasurer (2 Root, 381) i. 291, 342 V. Roberts (Wright, 149) ii. 472, 677 Robertson's case (1 Swinton, 93) i. 325 Robertson v. Cole (12 Texas, 356) i. 166, 192 V. Cowdry (2 West. Law Jour. 191 ; 1 S. W. Law Jour. 167) i. 205, 245 V. Robertson (1 Edw. Ch. 360) • ii. 406 Robins v. Crutchley (2 Wils. 118) ii. 748 V. Wolseley (2 Lee, 149) ii. 262 Robinson v. Bland (2 Bur. 1077) i. 356 V. Bland (1 W. Bl. 257) i. 83 V. Clifford (2 Wash. C. C. 1.) i. 426,427 V. Campbell (3 Wheat. 212) i. 70 V. Dauchy (3 Barb. 20) i. 412 ROS INDEX TO CASES CITED. SAB Robinson v. English (10 Casey, 324) i. 344 V. Reynolds (1 Ailcens, 174) i. 586, 609 V. Robinson (1 Barb. 27) ii. *235 V. Robinson (7 Humph. 440) ii. 474, 510 : V. Robinson (2 Lee, 593) ii. 447, 494 V. Robinson (2 Phillim. 96) i. 732 V. Robinson (1 Swab. & T. 862) ii. 246, 248 Robotham v. Robotham (1 Swab. & T. 190) ii. 526 Roby V. West (4 N. H. 285) ii. 75 Roche, Rex v. (1 Leach, 134) ii. 701, 754 Rochon V. Leeatt (2 Stew. 429) ii. 731 Rock V. Slade (7 Dowl. P. C. 22) i. 593 Rockwell V. Morgan (2 Beasley, 119) ii. 373 Rodebaugh v. Sanks (2 Watts, 9) i. 283,- 284 Rogers v. Phillips (3 Eng. 366) i. 616 '— V. Rogers (15 B. Monr. 364) ii. 202 V. Rogers (3 Hag. Ec. 57) - ii. 5, 6, 11, 14, 15, 21, 90, 346 • V. Rogers (4 Paige, 516) i. 650, 806 ; ii. 435 V. Vines (6 Ire. 293) ii. 351, 427, 429 V. Walker (6 Barr, 371) ii. 568 Roirdan, Rex v. (Car. Grim. Law, 3ded. 255) i. 114 Roland v. Logan (18 Ala. 307) i. 582, 616 , State V. (6 Ire. 241) i. 309 Rolfe V. Abbott (6 Car. & P. 286) ii. 528 Rood, State v. (12 Vt. 396) i. 279, 289, 414, 496 Rook, Rex V. (1 Wils. 340) i. 447; 547 Rooke's case (5 Co. 99) i. 830 Rorer v. O'Brien (10 Barr, 212) i. 582, 606 Rose V. Bates (12 Misso. 30) i. 602 Rose V. Clark (8 Paige, 574) i. 279 280, 438, 508, 510, 513 V. Himley (4 Cranch, "241) ii. 132 V. Niles (1 Abbot Adm. 411) i. 494 V. Rose (4 Eng. 507) i. 69, 724, 813, 826 V. Rose (11 Paige, 166) ii. 302, 327, 333, 375, 394, 406, 504 Roseberry v. Roseberry (17 Ga. 139) ii. 402, 489, 496 Ross V. Hunter (4 T. R. 38) i. 434 , State V. (26 Misso. 260) i. 342 Roswell, State v. (6 Conn. 446) i. 315, 442, 499, 501 Rotoh V. Miles (2 Conn. 638) i. 613 Rourke v. Rourke (8 Ind. 427) ii. 514, 519 Rovena, The (Ware, 309) i. 785 Ruddock V. Marsh (38 Eng. L. & Eq. 515 ; 1 H. & N. 601) i. 556, 562 Ruding V. Ruding (1 Hag. Ec. 740) ii. 18, 23 V. Smith (2 Hag. Con. 371) i. 361, 390, 393, 395, 396, 399, 400, 533 Rudman v. Rudman (5 Ind. 63) ii. 472, 512 Rumball v. Rumball (Poynter Mar. & Div. 237) i. 734 ; ii. 655 Rumney v. Keyes (7 N. H. 571) i. 566, 568, 570, 578; ii. 558 Russell V. Bodvil (1 Ch. R. 186) ii. 353 — V. Russell (4 Greene, Iowa, 26) ii. 427, 457 V. Russell (Smith, Ind. 356 ; 1 Ind. 510) ii. 318, 443 Rutherford v. Coxe (11 Misso. 347) i. 568, 573 Rutledge v. Rutledge (5 Sneed, 554) i. 765, 775; ii. 227 Ryan v. Ryan (9 Misso. 539) ii. 90, 95, 398 V. Ryan (2 Phillim. 332) ii. 754 Ryder v. Ryder (2 Swab. & T. 225) ii. 535 s. Sabell's case (2 Dy. 178 6) i. 116 [665] SAY INDEX TO CASES CITED. SEL Sackett v. Giles (3 Barb. Ch. 204) ii. 299, 363, 712 V. Sackett (8 Pick. 309) i. 68 Sallee v. Chandler (26 Misso. 1 24) i. 402 Samuel v. Evans (2 T. R. 669) i. 422 , State V. (2 Dev. & Bat. 177) i. 156, 162, 279 Sanders v. Eodway (16 Beav. 207) i. 636 ■ V. Sanders (25 Vt. 713) ii. 604, 651 Sandilands, Ex parte (21 Law J. N. S. Q. B. 342 ; 17 Jur. 317; 12 Eng. L. & Eq. 463) i. 786 Sands's case (3 Salk. 22) ii. 739 Sanford v. Sanford (5 Day, 253) i. 14; ii. 164, 170, 255, 512, 515 w. "Sanford (2 E. I. 64) ii. 398 V. Thompson (18 Ga. 554) i. 406 Sassen v. Campbell (3 Scotch Sess. Cas. new ed. 108; 2- Wilson &■ Shaw, 309) i. 232 Sattorlee v. Matthewson (2 Pet. 413) i. 680 Saunders v. Fuller (4 Humph. 516) i. 540 ■ V. Saunders (2 Edw. Ch. 491) ii. 406 n. Saunders (10 Jur. 143) i. 450, 726, 736, 737; ii. 270, 621 V. Saunders (1 Rob- ertson, 549 ; 5 Notes Cas. 413 ; 11 Jur. 738) i. 735, 747, 748; ii. 280, 281, 664 V. Saunders (1 Swab. & T. 72) ii. 429, 494 Savoie v. Ignogoso (7 La. 281) ii. 227, 241, 729 Sawtell V. Sawtell (17 Conn. 284) ii. 128, 212, 682 Sawyer v. Cutting (23 Vt. 486) i. 557, 562 V. Sawyer (Walk. Mich. 48) ii. 241, 244, 248, 376 Saye & Sele, Barony of (1 H. L. Cas. 507) i. 447, 546 Sayer v. Glossop (2 Car. & K. 694; 12 Jur. 465) i. 483 [666] Sayles v. Sayles (1 Fost. N. H. 312) ii. 239 Schemerhorn v. Jenkins (7 Johns. 373) ii. 303 Sohenck v. Filing wood (3 Edw. Ch. 175) ii. 302 Scherpf v. Szadeczky (4 E. D. Smith, 110) i. 494, 626 Schetzler v. Schetzler (2 Edw. Ch. 584) ii. 311 Schindel v. Schindel (12Md. 294) i. 582, 743 Schmidt v. Schmidt (26 Misso. 235) ii. 446, 447, 496, 498 Schnaufer v. Schnaufer (4 La. An. 355) ii. 176, 314 Schonwald v. Schonwald (2 Jones Ep. 367) ii. 127, 211 Schoolmasters of Scotland v. Fra- ser (2 Hag. Ec. 613) ii. 809 Sohulters v. Hodgson (1 Add. Ec. 105) ii. 281 Sohumpert, Ex parte (6 Rich. 344) ii. 529, 548 Scott's case (2 Bland, 568) ii. 355 Scott V. Boutcher (Ferg. 252) ii. 176 !■ V. Campbell, ii. 51 V. Scott (6 Ohio, 534) i. 99 V. Scott (Wright, 469) i. 783 ; ii. 629 V. Shufeldt (5 Paige, 43) i. 166, 191, 212, 214 , State V. (10 Fost. N. H.- 274) ii. 527, 529, 549 Scoville V. Canfield (14 Johns. 338) ii. 701 Sorimshire- u. Scrimshire (2 Hag. Con. 395) i. 112, 355, 361, 367, 368, 370,422, 533; ii. 37S, 754 Scrivener v. Scrivener (cited 1 Robertson, 92) ii. 80 Scroggins v. Scroggins (3 Dev. 535) i. 167, 179, 191, 830, 831 ; ii. 293, 687 V, Scroggins (Wright, 212) ii. 629 Seaborne v. Maddy (9 Car. & P. 497) ii. 528 Searle v. Price (2 Hag. Con. 187) i. 299; ii. 308, 245, 277, 641 Seaton v. Benedict (5 Bing. 28) ' i. 553, 554 Seligman v. Calkman (8 Cal. 207) ii. 572 Sellars v. Davis (4 Yerg. 503) 1, 299; ii. 690, 695 SHE INDEX TO CASES CITED. SID Seller v. Seller (1 Swab. & T. 482) ii. 98 Sellman v. Bowen (8 Gill & J. 50) i. 443, 552 Senser v. Bower (1 Pa. 450) i. 442, 448, 446, 453, 513 Sergeson v. Sealey (2 Atk. 412) ii. 566 Serrell v. Serrell (2 Swab. & T. 422) ii. 598 Severn v. Severn (3 Grant, U. C. Ch. 431) i. 738, 765; ii. 47, 357 V. Severn (7 Grant, U. C. Ch. 109) ii. 433, 457 Seymour v. Seymour (1 Swab. & T. 382) ii. 526 Shafher v. State (20 Ohio, 1) i. 145, 148, 153 Shaftoe V. Shaftoe (7 Ves. 171) ii. 436, 506 Shand v. Gardiner (2 Lee, 135) i. 437 Shanks v. Dupont (3 Pet. 242) li. 128 Shannon v. Shannon (4 Allen, 134) ii. 122, 123, 214 V. Shannon (2 Gray, 285) i. 688; ii. 397 Sharman v. Sharman (18 Texas, 521) i. 717; ii. 255 Sharp V. Sharp (2 Sneed, 496) i. 726 ; ii. 514, 520 V. Wickliffe (3 Litt. 10) i. 469 Shaw, Rex v. (12 East, 479) i. 421 V. Shaw (17 Conn. 189) i. 718, 722, 726, 734, 758, 769 V. Shaw (13 Scotch Sess. Cas. N. s. 819) ii. 149 , State V. (3 Ire. 532) i. 314 V. Thackary (23 Eng. L. & Eq. 18) i. 131 V. Thompson (16 Pick. 198) i. 15, 570, 586, 602 Sheafe v. Laighton (36 N. H. 240) ii. 378, 498, 502 V. Sheafe (4 Post. N. H. 564) ii. 377, 378, 441, 457, 513 V. Sheafe (9 Post. N. H. 269) ii. 260, 751 V. Sheafe (36 N. H. 155) ii. 429, 446, 498, 502 V. Shfeafe (40 N. H. 516) ii. 519 Shearer v. Clay (1 Litt. 260) 1. 540 Sheffield v. Sheffield (3 Texas, 79) i. 724, 726, 761 ; ii. 249, 250, 285 Shell V. Shell (2 Sneed, 716) i. 730, 826 Shelley v. Westbrooke (Jacob, 266) ii. 529 Shelley v. , (13 Vea. Jr. 66) i. 448 Shelthar v. Gregory (2 Wend. 222) i. 650 Shelton V. Hoadley (15 Conn. 535) i. 554, 556 V. Pendleton (18 Conn. 417) i. 553, 557, 617 ; ii. 391, 396 V. Tiffin (6 How. U. S. 163) ii. 122 Shepherd, Commonwealth o. (6 Binn. 283) ii. 620 V. Mackoul (3 Camp. 326) ii. 390, 391 V. Nabors (6 Ala. 631) i. 413 Sherburne v. Sherburne (6 Greenl. 210) i. 99, 698 Sherman v. Gassett (4 Gilman, 521) i. 402 V. Sherman (18 Texas, 521) i. 724 Shields v. Shields (15 Scotch Sess. Cas. n. s. 142) ii. 149 Shillinger v. Shillinger (14 111. 147) ii. 250 Shirley v. Wardrop (1 Swab. & T. 317) ii. 494 Shoemaker v. Kunkle (5 Watts, 107) i. 657 Shoop's Appeal (10 Casey, 233) ii. 366, 480 Shore v. Shore (2 Sandf. 714 ; 8 N. Y. Legal Observer, 166) ii. 302, 409 Shortev V. Boswell (2 Har. & J. 359) i. 463 Shotwell V. Shot well (Sm. & M. Ch. 61) ii. 381, 433, 492, 497 Shreve, State v. (Coxe, 230) ii. 628 Shrewsbury Peerage case (7 H. L. Cas. 1) i. 540 Shute V. Dorr (6 Wend. 204) ii. 628 V. Shute (Prec. Ch. Ill) i. 626 Sidwell V. Evans (1 Pa. 383) i. 427 [667] SMI INDEX TO CASES CITED. SMI Sill V. McKnight (7 Watts & S. 244) ii. 569 Sim V. Miles (8 Scotch Sess. Cas. 89) i. 261 - V. Miles (12 Scotch Sess. Cas. 633) ii. 642 Simmons's Divorce bill (1 2 CI. & F. 339) ii. 31, 91 Simmons v. McElwain (26 Barb. 419) i. 650 V. Simmons (11 Jur. 830; 5 Notes Cas. 324; 1 Robertson, 566) ii. 281, 285, 421, 615, 635, 642 Simmbnsto, Reg. v. (1 Car. & K. 164; 1 Cox C. C. 30) i. 497, 501, 530, 532 Simonin v. Mallac (2 Swab. & T. 67) ' i. 354, 368; ii. 131 Simons v. Simons (13 Texas, 468) i. 801,802; ii. 250 V. Simons (23 Texas, 344) ii. 510 Simpson v. Simpson (4 Dana, ■ 140) _ i. 645 V. Simpson (31 Misso. 24) i. 808 Sinclair v. Jackson (8 Cow. 543) i. 677 V. Sinclair (1 Hag. Con. 294) ■ ii. 180, 262, 754 Sinton v. Irvine (11 Scotch Sess. Cas. 402) ii. 60 Sisk V. Woodruff (15 111. 15) i. 424 Sistare v. Sistare (2 Root, 468) i. 629 Skinner v. Skinner (5 Wis. 449) i. 764 Slack V. Slack (Dudley, Ga. 165) ii. 361, 409 Sloan V. Cox (4 Hayw. 75) ii. 90, 432, 438 u. Kane (10 How. N. Y. Pract. 66) i. 166 Slooum V. Slocum (2 Philad. 217) ii. 497 Small V. Small (31 Maine, 493) i. 827, 834 Smallwood v. Smallwood (2 Swab. & T. 397) i. 717, 726, 746 ; ii. 108 Smart v. Whaley (6 Sm. & M. 308) i. 105, 301 Smedley v. Smedley (30 Ala. 714) i. 717; ii. 105, 651 Smith, Ex parte (34 Ala. 455) ii. 421 [668] Smith, Commonwealth v. (1 Wheat. Dig. 826) i. 298 V. Derr (10 Casey, 126) i. 548 V. Elder (3 Johns. 105) i. 532 V. Huson (1 Phillim. 287) i. 294, 457 V. Knowles (2 Grant, 413) i. 663 V. Potter (27 Vt. 304) i. 426 , Reg. V. (14 U. C. Q. B. 665) i. 524 0. Sheriff of Middlesex, (15 East, 607) i. 691 V. Silence (4 Iowa, 321) i. 598 V. Smith (4 Blackf. 132) ii. 255 V. Smith (1 Edw. Ch. 256) ii. 404 V. Smith (13 Gray, 209) ii. 123, 214 B. Smith (4 Greene, Iowa, 266) ii. 122, 209, 314, 315 V. Smith (2 Hag. Ec. Supp. 44) i. 634, 806 V. Smith (4 Hag. Ec. 609) i. 634 V. Smith (6 Mass. 36) ii. 311, 314 u. Smith (9 Mass. 422) ii. 311 V. Smith (13 Mass. 231) ii. 709 V. Smith (20 Misso. 166) ii. 260, 311, 751 V. Smith 12 N. H. 80) i. 796 ; ii. 173, 344 V. Smith (5 Ohio State, 32) i. 120 V. Smith (4 Paige, 92) ii. 80, 327 V. Smith (4 Paige, 432) ii. 33, 60, 80, 253, 256, 260, 335, 337, 338, 341, 636, 751 V. Smith (2 Phillim. 67) ii. 623 V. Smith (2 Phillim. 207) i. 749 V. Smith (2 Phillim. 162) ii. 457, 459, 460, 631 V. Smith (2 Phillim. 235) ii. 445, 446, 457,462,463, 474 V. Smith (2 Pick. 621) ii. 75 V. Smith (1 Root, 349) ii. 438 V. Smith (3 S. & R. 248) i. 698; ii. 227, 376 V. Smith (1 Swab. & T. 869) ii. 328, 671, 681 SPA INDEX TO CASES CITED. STA Smith t). Smith (1 Texas, 621) i. 299, 303, 523, 524 V. Smith (Wright, 643) ii. 30, 235, 237, V. Smith (Wright, 644) ii. 629 u. State (9 Ala. 990) i. 156, 162 , State V. (6 Greenl. 462) ii. 529 V. Young (2 Dev. & Bat. 26) ii. 528 Smithson's case (2 Vent. 345) ii. 505 Smoot V. Lecatt (1 Stew. 590) ii. 731 Smyth V. Smyth (2 Add. Ec. 254) ii. 386, 404 V. Smyth (4 Hag. Ec. 609) ii. 48 V. State (13 Ark. 696) i. 342 V. State (8 Eng. 696) i. 294 Sneed v. Ewing (5 J. J. Mar. 460) i. 339, 376, 438, 443, 453 Snover v. Blair (1 Dutcher, 94) i. 568 V. Snover (2 Beasley, 261) ii. 489, 554 V. Snover (2 Stock. 261) ii. 327, 472, 495 Snow V. Snow (2 Notes Cas. Supp. 1) ii. 22, 33, 37, 38, 41, 45, 46, 50, 52, 55, 56, 339, 340 Snowling v. Nursey (2 Lutw. 1075) ■ i. 316 Snyder v. Bauchman (8 S. & R. 336) i. 83 Snyder v. Snyder (3 Barb. 621) ii. 409 Society v. Wheeler (2 Gallis. 105) i. 671 Soilleux V. Soilleux (1 Hag. Con. 373) ii. 411, 619, 625, 642 Somerville v. Somerville (5 Ves. 750) ii. 175 Sommersett's case (20 Howell St. Tr. 1) ii. 141 Sopwith V. Sopwith (2 Swab. & T. 160) ii. 58, 89,417, 418 Souie V. Bonney (37 Maine, 128) i. 212 Soules V. Soules" (2 Grant, U. C. Ch. 299) ii. 357, 411, 425, 495 Sourton, Rex v. (5 Ad. & E. 180 ; 6 Nev. & M. 575) i. 447 Sparrow v. Harrison (3 Curt. Ec. 16) ii. 585, 588 Spaulding v. Bank of Musk- ingum (12 Ohio, 544) ii. 75 V. Vincent (24 Vt. 501) -i. 426 Spears v. Burton (31 Missis. 547) i. 442, 540, 541 Speed V. Brooks (7 J. J. Mar. 119) i. 640 Spencer v. Ford (1 Rob. Va. • 648) ii. 440 V. Tisu.e (Addison, 316) i. 567 Spicer V. Spicer (5 Harring. Del. 106) ii. 518 Spier's Appeal (2 Casey, 233) i. 606 Spiller V. Spiller (1 Hayw. 482) ii. 355, 501 Spooner, Commonwealth v. (1 Pick. 235) i. 291 Spratt V. Harris (4 Hag. Ec. 405) ii. 739 V. Spratt (1 Swab. & T. 215) ' - ii. 530 Spring V. Eve (2 Mod. 240) i. 421 Squire v Squire (3 Mass. 184) ii. 173, 255 Stacoy V. Stacey (29 Law J. n. s. Mat. 63 ; 8 W. R. 341) ii. 539 Stafford v. Stafford (9 Ind. 162) ii. 318, 439 Stainer v. Droitwich (1 Salk. 281) i. 466 Stallwood V. Tredger (2 Phillim. 287) i. 283, 284 Stammers v. Macomb (2 Wend. 454) i. 617 Stamps II Newton (3 How. Missis. 34) ii. 133 Standen v. Standen (Peake, 32) i. 547 Stanford v. Pruet (27 Ga. 243) i. 424 V. Stanford (1 Edw. Ch. 317) ii. 341,406 Staniford v. Barry ' (1 Aikens, 314) i. 676 Stanley v. Stanley (26 Maine, 191) i. 667, 675 Stansbury v. Bertron (7 Watts & S. 362) ii. 529 Stanton v. Willson (3 Day, 37) ii. 528, 556, 723 Staru. Taylor (4 McCord, 413) i. 584 Starr v. Pease (8 Conn. 541) i. 26, 669, 678, 686, 693 ; ii. 199, 710, 712, 713 V. Peck (1 Hill, N. Y. 270) i. 279, 437, 453, 508, 526 [669] STJ INDEX TO CASES CITED. STU Starrett v. Wynn (17 S. & E. 130) i. 606 Stayte v. Farquharson (3 Add. Ee. 282) i. 207 St. Devereux v. Much Dew Church (Bur. Set. Cas. 506 ; 1 W. Bl. 367) i. 450, 494 Steadman v. Powell (1 Add. Ec. 68) i. 450, 457, 486, 488, 504, 513, 526 ;ii. 739 Stearns v. Stearns (10 Vt. 540) ii. 310 Steele v. Braddell (Milward, 1) i. 361 V. Steele (1 Dall. 409) ii. 571, 651 V. Thatcher (Ware, 91J ii. 529 Steer's case (2 N. Y. City Hall Kec. Ill) i. 442, 480, 499 Stegall V. Stegall (2 Brock. 256) i. 187, 448, 548 Stein V. Bowman (13 Pet. 209) i. 426. 540 Stephens v. Tottv (Cro. Eliz. 908) i. 719, 728, 730; ii. 729, 732 Stephenson v. Bannister (3 Bibb, 369) i. 418 Sterling v. Sterling (12 Ga. 201) ii. 239, 438 Stevens v. Reed (37 N. H. 49) i. 443 V. Stevens (1 Met. 279) i. 100; ii. 128, 320, 365, 732 Stevenson v. Gray (17 B. Monr. 193) i. 283, 284, 353, 371, 377, 389 V. McReary (12 S. & M. 9) i. 439, 538 V. Stevenson (29 Misso. 95) ii. 260 Stewart u. English (6 Ind. 176) li. 572 V. Hubbard (3 Jones Eq. 186.) i. 193 V. Menzies (2 Rob. Ap. Cas. 547) i. 227, 236, 238, 249, 253, 263 V. Redditt (3 Md. 67) ii. 563 V. "Stewart (2 Swan, Tenn. 591) i. 775; ii. 88, 667 Stewartson v. Stewartson (15 111. 145) ii. 457, 472, 519 St. George v. St. Margaret (1 Salk. 123) i. 152; ii. 740 St. Giles, Reg. v. (11 Q. B. 173) i. 315 Stigall, State v. (2 Zab. 286) ii. 529, 548, 549 St. John V. St. John (Wright, 211) i. 787 [670] St. John Delpike, Eex v. (2 B. & Ad. 226) , i. 294 Stoate V. Stoate (2 Swab. & T. 384) ii. 258, 743 Stoekbridge v. Quicke (3 Car. & K. 305) i. 465, 471 Stockland, Eex v. (Bur. Set. Cas. 508) i. 443 Stoever v. Whitman (6 Binn. 416) i. 467 Stokes V. Stokes (1 Misso. 320) i.'648, 783; ii. 103, 254, 256, 259 V. Stokes (1 Misso. 324) ii. 176, 326 Stone V. Damon (12 Mass. 488) ii. 568 V. Pulsipher (16 Vt. 428) ii. 528 V. Stone (3 Curt. Ec. 341) ii. 446, 448 V. Stone (9 Jur. 381) ii. 449 V. Stone (3 Notes Cas. 278 ; 1 K6bertson, 99) ii. 10, 11, 17, 19, 23, 89j 242, 243, 632 Stoner v. Stoner (9 Ind. 505) ii. 318 Stones V. Cooke (8 Sim. 321) ii. 436 Story V. Norwich & Worcester Railroad (24 Conn. 94) i. 209 V. Story (Walk. Mich. 421) ii. 384, 387, 398, 459 Stoughton V. Mott (13 Vt. 175) ii. 133 Stoutenburg v. Ly brand (13 Ohio State, 228) ii. 239 Stovall V. Johnson (1 U. S. Mo. Law Mag. 528) ii. 528 Stover V. Boswell (3 Dana, 232) i. 443 Stowell's case (Godb. 145) ii. 730 St. Peter's, Rex v. (Bur. Set. Cas. 25) i. 547 Strader v. Graham (10 How. U. S. 82) ii. 137 Street v. Street (2 Add. Ec. 1) ii. 260, 375, 455, 457, 463 V. Street (Turn. & Euss. 322) ii. 506 Stretch v. Pynn (1 Lee, 30) ii. 739 Stretton v. Busnach (4 Moore & S. 678 ; 1 Bing. N. C. 139) i. 592 Strickland v. Poole (1 Dall. 14) i. 540 Studdy V. Studdy (1 Swab. & T. 321) ii. 25 TAN INDEX TO CASES CITED. TEF Sugden v. LoUey (2 CI. & F. 567) 11. 144 V. Lolly (Ferg. 269) ii. 29 Suggate V. Suggate (1 Syrab. & T. 492) ii.. 253, 526, 536, 537 V. Suggate (1 Swab. & T. 489) i. 736 V. Suggate (1 Swab. & T. 497) ii. 413 Sullivan v. Sullivan (2 Add. Ec. 299) i. 636, 738, 801 ; ii. 25, 88, 641 V. Sullivan (2 Hag. Con. 238) i. 173, 294 Summerlin v. Livingston (15 La. An. 519) i. 302 Sumner, Commonwealth v. (5 Pick. 360) i. 78 V. Murphy (2 Hill, S. C. 488) i. 173 V. Sebec (3 Greenl. 223) ii. 629 Sunbury & Erie Railroad v. Cooper (9 Casey, 278) i. 687 Surtell v. Brailsford (2 Bay, 333) i. 584 Sussex Peerage case (11 CI, & F. 85) i. 383, 388, 392, 428, 529 Suter V. Christie (2 Add. Ee. 150) i. 593 Sutton V. Warren (10 Met. 451) i. 117,355, 376, 377, 384 Swanzy v. Hunt (2 Nott & McC. 211) _ i. 173 Swearingen v. Swearingen (19 Ga. 265) ii. 406, 407, 472, 489 Sweet V. Avaunt (2 Bay, 492) ii. 314 Swift V. Fitzhugh (9 Port. 39) i. 209, 474, 475 V. Kelly (3 Knapp, 257) i. 205, 252, 355, 392 V. Swift (4 Hag. Ec. 139) i. 533 Switzerland v. Hilderbrand (1 Ind. 555 ; 1 Smith, Ind. 361) i. 566 Sykes v. Halstead (1 Sandf. 483) i. 568, 570, 619, 801 ; ii. 384, 483 Symons v. Symons (2 Swab. & T. 435) ii. 365 Tappan v. Tappan (6 Ohio State, 64) ii. 260, 751 Tarani;, Rex v. (1 Bott P. L. 338 ; 2 Bott P. L. 68) i. 173 Tarbell, petitioner (32 Maine, 589) ii. 93, 262 Tarkington v. State (1 Cart. Ind. 171) ii. 529 Tarpley v. Poage (2 Texas, 139) i. 438 Tarry v. Browne (1 Sid. 64) i. 215 Taylor, Matter of (9 Paige, 611) i. 438, 439, 486, 506 Taylor's Succession (15 L. An. 313) i. 475 Taylor v. Bank of Illinois (7 T. B. Monr. 576) i. 424 V. Binnie (4 Deas. & An- Talbot V. Seeman (1 Cranch, 1) i, Tandy v. Masterson (1 Bibb. 330) i. 422 i. 469 derson, 314 ; 10 Scotch Sess. Cas. 18) ii. 411 V. Kello (1 Fras. Dom. Rel. 214) i. 235 V. liello (Mor. 12687) i. 238 V. Robinson (29 Maine, 323) i. 442 . — V. Runyan (9 Iowa, 522) i. 414- V. Shemwell (4 B. Monr. 575) i. 441, 442 V. Simpson (5 J. J. Mar. 689) ii. 737 V. Starr (2 Root, 293) ii. 744 V. Taylor (4 Des. 167) i. 719, 768; ii. 358, 472 V. Taylor (8 How. U. S. 183) i. 193 V. Taylor (Jones, N. C. 528) ii. 397 V. Taylor (1 Lee, 571) i. 446 V.Taylor (2 Lee, 172) i. 755, 767 V. Taylor (2 Lee, 274) i. 446, 506, 538 V. Taylor (2 Phillim. 40) ii. 463 V. Taylor (18 Texas, 574) i. 724 Tayman v. Tayman (2 Md. Ch. 393) i. 718 ; ii. 387, 398, 520 Tefl V. Teft (3 Mich. 67) i. 664 [671] THO INDEX TO CASES CITED. TOU' Telts V. Foster (1 Taylor, 121) i. 437, 538 Tempany v. Hakewill (1 Fost. &F. 438) i. 568 Tenducci's case (3 Phillim. 595) ii. 128 Terrett v. Taylor (9 Cranch, 43) i. 68 Territt v. Woodrufi' (19 Vt. 182) i. 418 Terry v. Buffington (11 Ga. 337) ii. 563 Tewksbury v. Tewksbury (2 Dane Ab. 310) li. 245 V. Tewksbury (4 How. Missis. 109) ii. 244, 376, 446, 512 Texas's case (1 Ashm. 175) ii. 438 Thatcher v. Thatcher (17 111. 66) ii. 92, 367 Thomas v. Davis (7 B. Monr. 227) i. 424 V. Gordon (7 Scotch Sess. Cas. 872) i. 266 V. Tailleu (13 La. An. 127) i. 765; ii. 88 V. Thomas (18 Barb. 149) ii. 302, 409 V. Thomas (2 Swab. & T. . 64) ii. 498 V. Thomas (2 Swab. & T. 89) ii. 519 Thomasson v. Kercheval (10 Humph. 322) ii. 568 Thompson v. Harvey (4 Bur. 2177) . ii. 375 V. Hatch (3 Pick. 512) i. 84 V. Ketcham (8 Johns. 189) i. 412 V. Lee (31 Ala. 292) i. 214 V. Musser (1 Dall. 468) i. 424 V. State (28 Ala. 12) ii. 127, 144, 161, 163, 166, 171, 197, 198 , State V. (Wright, 617) i. 131 V. Steamboat Morton (2 Ohio State, 26) ii. 164 V. Thompson (10 Rich. Eq. 416) ii. 642 V. Thompson (1 Swab. & T. 231) i. 808; ii. 671, 680 V. Thompson (2 Swab. & T. 402) ii. 536 [672] Thompson v. Thompson (Wright, 470) ii. 678 V. Thompson (1 Yeates, 78; 2 Dall. 128) i. 719; ii. 729 V. Trevanion (Skinner, 402) ii. 661 V. Warren (8 B. Monr. 488) ii. 421 Thornberry v. Thornberry (2 J. J. Mar. 322) i. 71, 718, 722, 731; ii. 328, 365, 386 V. Thornberry (4 Litt. 251) ii. 260, 457, 472, 512, 514, 750 Thorndell v. Morrison (1 Casey, 326) ■ i. 442, 586 Thorndike v. Boston (1 Met. 242) ii. 119 ■ — V. Rice (24 Law Re- porter, 19) ii. 204 Thorp V. Thorp (Wright, 763) i. 816 Threewits v. Threewits (4 Des. 660) i. 719; ii. 38, 50, 59, 235, 355, 362 Thurston !■. Percival (1 Pick. 415) i. 411, 413 Tiffin V. Tiffin (2 Binn. 202) ii. 51 Tilton V. Russell (11 Ala. 497) ii. 527 Timmings v. Timmings (3 Hag. Ec. 76) ii. 9, 21, 43, 45, 102, 337, 340 Tims V. Potter (Martin, N. G. 22) i. 154 Titus V. Hobart (5 Mason, 378) , i. 402 V. Scantling (4 Blackf. 89) i. 413 Todd V. Stokes (1 . Ld. Raym. 444; 12 Mod. 244) i. 568 Tolen V. Tolen (2 Blackf. 407 ; ii. 128, 141, 144, 157, 161, 176„198, 199 Tollemache v. Tollemache (1 Swab. & T. 557) ii. 108 Tomkins v. Tomkins (1 Swab. & T. 168) i. 717, 770 Toulmin, Matter of (R. M. Charl. 489) • ii. 529, 546 Tournd v. Tour*^ (9 La. 452) i. 724, 736; ii. 663 Tourney v. Sinclair (3 How. Missis. 324) i. 647 Tourtelot v. Tourtelot (4 Mass. 506) ii. 237 TUR INDEX TO CASES CITED. VAN 621 Tovey v. Lindsay (1 Dow. 117) ii. 126, 181, 184, 230 Townsand v. Townsand (21 111. 640) ii. 311 Townsend v. Graves (3 Paige, 453) ii. 644 V. Griffin (4 Harring. t. Del. 440) i. 5, 9, 14, 678, 679, 680, 684, 686, 687, 693 ; ii. 170, 710, 712, 713 V. Townsend (2 E. I. 150) ii. 344 Tracey v. Sacket (1 Ohio State, 54) i. 193 Tracy, Matter of (1 Paige, 580) ii. 159 Trammell v. Thurmond (1 7 Ark. 203) i. 463 Trelawney v. Coleman (1 B. & Aid. 90; 2 Stark. 191) ii. Trimble v. Trimble (2 Ind. 76) i. 413, 533; ii. 262, 268 — : t). Trimble (15 Texas, 18) ii. 514, 532 Tronghton v. Hill (2 Hayw. 406) i. 588, 604 Trowbridge v. Carlin (12 La. An. 882) i. 754 Trower's case (Macqueen H. L. Pract. 656) i. 483, 524 True V. Ranney (1 Fost. N. H. 52) i. 124, 128, 218, 376 Truman's case (1 East P. C. 470) i. 442, 497, 502 Tryon v. Rankin (9 Texas, 595) i. 426, 427 Tubbs V. Harrison (4 T. R. 118) li. 527 Tucker v. Carlin (14 La. An. 734) . ii. 421 V. Scott (Pennington, 955) i. 583 V. Tucker (11 Jur. 893 ; 5 Notes Cas. 458) ii. 243, 244, 245, 613 Turbitt V. Turbitt (21 El. 438 i. 743 Tummalty v. Tummalty (3 Bradf. 369) i. 508 Turing, Ex parte (1 Ves. & B. 140) i. 136 Turner v. Felton (2 Phillim. 92) i. 294 V. Meyers (1 Hag. Con. 414) i. 124, 125, 127, 130; ii. 563, 564, 565 voi,. n. 43 Turner v. Rookes (10 Ad. & E. 47 ; 2 Per. & D. 294) ii. 390, 391 , State V. (Wright, 20) i. 131 V. Turner (3 Greenl. 398) li. 345 V. Turner (2 Swab. & T. 426) ii. 321 Turney v. Turney (4 Edw. Ch. 566) ii. 642 Turpin v. Public Administrator, 2 Brad. 424) i. 261 Turrel v. Turrel (2 Johns. Ch. 391) ii. 354, 406, 457 Turst V. Turst (2 Lee, 92) ii. 394 Turton v. Turton (3 Hag. Ec. 388) ii. 6, 14, 18, 44, 49, 60, 70, 89, 253, 335, 336, 339, 635 Twitty, State v. (2 Hawks, 441) i. 424 Twyman v. Twyman (27 Misso. 383) ii. 38, 249 Twyning, Rex v. (2 B. & Aid. 386) i. 437, 453 Tyler v. Trabue (8 B. Monr. 306) i. 409, 427, 530 Tyson's Appeal (10 Barr, 220) i. 582, 606 U. U. V. F. (2 Robertson, 614) ii. 588 University v. Williams (9 Gill & jT. 365) i. 670 Ufton, Reg. v. (1 Car. & K. 165) i. 497 Urquhart v. Flucker (Ferg. 259) ii. 176 Utsler V. Utsler (Wright, 627) i. 823 Utterton v. Tewsh (Ferg. 23) ii. 29, 148, 150 V. Valansart's Succession (12 La. An. 848) i. 405 Valentine v. Ford (2 Browne, 193) i. 585 Valentine v. Valentine (4 Halst. Ch. 219) ii. 533 Valleau v. Valleau (6 Paige, 207) i. 114, 710; ii. 104, 107,413 Van Aernam v. Van Aernam (1 Barb. Ch. 375) i. 448; ii. 23, 559, 740 [673] VIO INDEX TO CASES CITED. WAL Vanatta v. Anderson (3 Binn. 417) i. 83 Van Buskirk v. Mulock (3 Har- rison, 184) i. 426 ; ii. 499 Vance v. Vance (8 Greenl. 132) li. 245 ^— V. Vance (17 Maine, 203) ii. 258, 345, 766 Van Cort v. Van Cort (4 Edw. Ch. 621) ii. 642, 643 Vander Donckt v. Thellusson (8 Com. B. 812) i. 529 Vandergucht v. De Blaqniere (8 Sim. 315) ii. 437, 505 Vanduzer v. Vanduzer (6 Paige, 366) ii. 733 Vandyck v. Hewitt (1 East, 96) ii. 75 Vane's case (13 East, 172 ; 1 W. Bl. 18) i. 755, Van Epps v. Van Epps (6 Barb. 320) ii. 614, 62*6, 635, 642 Vanleer v. Vanleer (1 Harris, Pa. 211) i. 783, 799 Van Note v. Downey (4 Dutcher, 219) i. 582 Van Valkinburg v. Watson (13 Johns. 480) ii. 528 Van Veghten v. Van Veghten (4 Johns. Ch. 501) i. 761 ; ii. 235 Van'Voorhees v. Van Voorhees (Wright, 636) i. 7fi3 Vanzant v. Vanzant (23 El. 536) ^ ii. 502 Vamer v. Varner (3 Blackf. 163) ii. 255 Vaughan v. Buck (3 Eng. L. & Eq. 135: 1 Sim. n. s. 284) i. 582; iL450 ■ V. Phebe (Mart. & Yerg. 5) i. 540 Vaughn v. McQueen (9 Misso. 327) i- 344 Versiner v. Kirk (2 Des..640) ^ i. 42 Vertner v. Humphreys (14 Sm. & M. 130) i. 404 Vienos V. Vignos (15 HI. 186) ^ i. 718, 729 Vincent v. Parker (7 Paige, 65) ii. 504, 524 Villareal v. Mellish (2 Swanst. 533) ii- 527 Violett V. Violett (2 Dana, 323) i. 668 [674] Vischer v. Vischer (12 Barb. 640) ii. 128, 144, 159, 762, 763 Viser v. Bertrand (14 Ark. 267) ii. 239, 391 Volentine v. Bladen (Harper, 9) ia. 528 W. W V. H (2 Swab. & T. 240) i. 334 Wadsworth v. Sharpsteen (4 Seld. 388) ii. 569 Wagg V. Gibbons (5 Ohio State, 580) i. 605 Wagner's Estate (2 Ashm. 448) i. 653 Wait V. Wait (4 Barb. 192 ; 4 Comst. 95) ii. 707 Waithman v. Wakefield (1 Camp. 120) i. 618 Wakefield v. Mackay (1 Phillim. 134) i. 167 ■, Kex V. (39 Annual Eegister, 316 ; 47 Edin. B«v. 100; 2 Lewin, 279; 2 Town- send St. Tr. 112 ; Deac. Crim. Law, 4) i. 196 V. Wakefield (1 Hag. Con. 394) i. 292 Waldron v. Tuttle (4 N. H. 371) i. 540 Walker v. Forbes (26 Ala. 139) i. 530 V. Forbes (31 Ala. 9) i. 427 V. Laighton (11 Fost. N. H. Ill) i. 786, 789, 790, 806, 810 , Keg. V. (2 Moody & R. 212) ii. 659 V. Simpson (7 Watts & S. 83) i. 568, 616, 621 V. Walker (1 Curt. Ec. 560) ii. 395 V. Walker (cited 3 Hag. Ec. 59) ii. 6 V. Walker (2 Phillim. 153) ii. 22, 23, 48, 49 WaU V. Williams (11 Ala. 826) i. 223 ; ii. 141, 764 V. Williamson (8 Ala. 48) i. 223,355,372; ii. 141, 754 Wallace, State v. (9 N. H. 515) i. 463, 464,«468,479; ii. 625 Wallingsford v. Wallingsford (6 Har. & J. 485) ii. 235, 351, 355, 360, 362,363,427,435 WAS INDEX TO CASES CITED. WEL Wallis V. Wallis (29 Law J. N. s. Mat. 151) ii. 464 Wallscoui't V. "Wallsoourt (11 , Jur. 184) j. 736 Walsh V. Kelly (10 Casey, 84) i. 653 Walton V. Nortaington (5 Sneed 282) i. 194 V. Eider (1 Lee, 16) i. 228, 250 ; ii. 290 ti. Walton (32 Barb. 203) li. 328 Waltz V. Waltz (18 Ind. 449) ii. 154 Wambaugh v. ,Sclienck (Pen- nington, 229) i. 452 Wand V. Wand (14 Cal. 512) i. 717, 719 Ward V. Barnard (1 Aikens, 121) i. 670 V. Dey, 7 Notes Cas. 96) i. 529 V. Dey (1 Robertson, 759) i. 524, 533 V. Dulaney (23 Missis. 410) i. 124, 127, 139, 457 V. Ward (2 Dev. Ch. 553) * ii. 302, 367 V. Ward (1 Swab. & T. 185) i. 783, 794 V. Ward (1 Swab. & T. 484) _ ii. 498 Waring v. Waring (2 Phillim. 182; 2 Hag. Con. 153) i. 717, 758, 761, 764, 765, 767, 768; ii. 659 Warner v. Commonwealth (2 Va. Cas. 95) i. 424, 441, 494, 495 497, 498, 523 Warren v. Bray (8 B. & C. 813) i. 465, 468 V. Thomaston (43 Maine, 406) ii. 123 V. Warren (3 Mass. 321) i. 718, 729 Warrender v. Warrender (2 CI. & F. 488 ; 9 Bligh, 89) i. 242, 856, 861, 362, 366,372, 377, 634, 635; ii. 126, 129, 148, 181, 182, 184, 185, 186,189, 191, 234 Warwick v. Cooper (5 Sneed, 659) i. 148, 145, 153 Washburn v. Tracy (2 D. Chip. 128) ii. 75~ V. Washburn (9 Cal. 4"75) i. 818 V. Washburn (8 Mass. 131) ii. 608 Washburn v. Washburn (5 N. H. 196) ii. 241, 608, 625, 644 Waskam v. Waskam (31 Missis. 154} i. 734 Watkms v. Haight (18 Johns. 188) i. 101 V. Holman (16 Pet. 25) i. 680, 681, 688 V. Watkins (7 Yerg. 283) i. 655 Watkmson v. Mergatron (T. Raym. 464) i. 316 V. Watkinson (12 B. Monr. 210) i. 767, 778, 795 ; ii. 750 Watkyns v. Watkyns (2 Atk. 96) ii. 80, 352, 353 Watson V. Blaylook (2 Mill, 351) i. 845 Waiters, State v. (3 Ire. 455) i. 308, 547 Watts, State v. (10 Ire. 369) i. 844 WauUy, Rexu. (1 Moody, 163 ; 1 Lewin, 23) i. 294 Way, State v. (6 Vt. 311) ii. 614 Weatherford u. Weatherford (20 Ala. 548) i. 513 Weatherley v. Weatherley (1 Spinks, 193) li. 636 Weaver v. Cryer (1 Dev. 337) i. 442, 445 Webb V. Needham (1 Add. Ec. 494) ii. 739 V. Webb (1 Hag. Ec. 849) 11. 816 Weber v. Weber (1 Swab. & T. 219) ii. 418, 461 Webster v. McGinnis (5 Binn. 235) i. 557, 562 V. Webster (28 Eng. L. & Eq. 216) ii. 58 Wedgwood's case (8 Greenl. 75) i. 463, 464, 468, 478,479 Wedgwood, State v. (8 Greenl. 75) . i. 442 Weeks v. Hill (38 N. H. 199) ii. 239 Welch, State v. (26 Maine, 30) 11. 643 V. Welch (16 Ark. 527) ii. 285, 246, 311 Welde V. Welde (2 Lee, 578) ii? 586, 588 V. Welde (2 Lee, 580) i. 113, 382; ii. 688,697 [675] WHE INDEX TO CASES CITED. WHO Welland Canal v. Hathaway (8 Wend. 480) i. 532 Welles V. Tucker (3 Binn. 366) ii. 723 Wellesley v. Beaufort (2 Russ. 1 ; 1 Dow & CI. 152) ii. 529, 546 V. Wellesley (2 Bligh, N. 8. 194) ii. 529 Wells V. Fisher (1 Moody & R. 99) i. 94 V. Fletcher (5 Car. P. 12) i. 92 V. Stout (9 Cal. 479) i. 641 V. Thompson (13 Ala. 793) ii. 198, 279, 682 V. Treadwell (28 Missis. 717) i. 647 V. WeUs (1 Swab. & T. 308) ii. 415 Welman v. Nutting (2 Dane Ab. 305) i. 455 West V. State (1 Wis. 209) i. 501 V. West (2 Mass. 223) i. 100, 678, 686, 693, 697, 698 V. West (10 S. & R. 445) j. 582, 606 Westbrook v. AVestbrook (2 Greene, Iowa, 598) ii. 233 Westby V. Westby (2 Dru. & W. 502) i. 386 West Cambridge v. Lexington (1 Pick. 506) ii. 717 Westfall V. Jones (23 Barb. 9) i. 214 Westfield o. Warren (3 Halst. 249) i. 439, 540 Westmeath v. Salisbury (5 Bligh, N. R. 339) i. 637 V. Westmeath (2 Hag. Eg. Supp. 1) i. 634, 717, 726, 730, 734, 741, 766, 804, 806 ; ii. 22, 33, 46, 49, 50, 56, 58, 71, 234, 619, 663 V. Westmeath (Jacob, 126) i. 634, 635 V. Westmeath (3 Knapp, 42) ii. 375, 429, 447, 465 Weston V. Stammers (1 Dall. 2) i. 478 Wharton v. Mair (Ferg. 250) ii. 128, 148 Wheeler v. Alderson (3 Hag. Ec. 574) i. 130, 132 ; ii. 563 V. Hotchkiss (10 Conn. 225)- • ii. 712 V. McWiUiams (2 U. C. Q. B. 77) i. 444, 472 [676] Wheeler v. Wheeler (2 Dane Ab. 310) ii. 737 V. Wheeler (18 111. 39) ii. 429, 472 Whetford, Rex v. (cited 5 Ben- tham's Rationale of Judicial Evidence, 160) i. 523 Whieldon v. Whieldon (2 Swab. & T. 388) ii. 4G6, 467, 553 Whigham, People v. (1 Wheeler, C. C. 115) i. 486 Whipple V. Dow (2. Mass. 415) ii. 527 Whispell v. Whispell (4 Barb. 217) i. 717, 726, 727, 742; ii. 50, 52, 56, 57, 58, 375, 457, 657 Whitcomb v. Whitcomb (2 Curt. Ec. 351) ii. 126 White V. Crew (16 Ga. 416) i. 214 V. Driver (1 Phillim. 84) ii. 563 V. Henry (24 Maine, 531) ii. 528 V. Perley (15 Maine, 470) i. 412 V. State ^4 Iowa, 449) i. 342 u. Strother (11 Ala. 720) i. 540 V. White (5 Barb. 474) i. 675 ; ii. 714 V. White (5 N. H. 476) ii. 144, 198 V. White (1 Swab. & T. 591) i. 737, 761 V. White (Wright, 138) i. 295; ii. 472, 677 V. Wilson (13 Ves. 87) ii. 563 Whitfield V. Hales (12 Ves. 492) ii. 529, 546 Whitman v. Hapgood (10 Mass. 437) ' i. 672 Whitmore, Ex parte (Dick. 143) ii. 506 Whitsell V. Mills (6 Ind. 229) ii. 706, 710 V. Whitsell (8 B. Monr. 50) ii. 398, 422 Whitten v. Whitten (3 Cush. 191) i. 682 Whittier v. Whittier (11 Fost. N. H. 452) ii. 516, 518, 620 Whittington v. Whittington (2 Dev. & Bat. 64) i. 35, 707; ii. 23, 90, 104, 227, 230, 328 Whorewood v. Whorewood (1 Ch. Cas. 153) ii. 353, 361 WIL INDEX TO CASES CITED. WIL Whorwood v. Whorwood (1 Ch. R. 223) ii. 352 Wighan, People v. (1 Wheeler, C. C. 115) i. 494 Wightman v. Wightman (4 Johns. Ch. 343) 1. 120, 136, 140, 376, 377; ii. 289, 291, 565 Wihen v. Law (3 Stark. 63) i. 463 Wilber v. Williams (8 Law Re- porter, 439) ii. 75 Wilbur V. Tobey (16 Pick. 177) i. 120 Wilcocks V. Phillips (1 Wallace, Jr. 47) i. 530t Wilcox, People v. (22 Barb. 178) ii. 550 Wiles V. Wiles (3 Md. 1) ii. 355, 358 Wiley V. Wiley (27 Ala. 704) ii. 255 Wilkerson v. Goldthwaite (1 Stew. & P. 159) ii. 744 Wilkes V. Wilkes (2 Dick. 791) ii. 352, 353 Wilkinson v. Gordon (2 Add. Ec. 152) i. 457; ii. 640, 739 V. Payne (4 T. R. 468) i. 445, 509, 513 V. Stanbrough (1 La. An. 264) i. 599 V. Wilkinson (30 Law J. N. s. Mat. 200) ii. 539 Willard v. Stone (7 Cow. 22) i. 143, 170 V. Willard (4 Mass. 506) ii. 296 Williams, In the goods of (3 Hag. Ec. 217) li. 739 V. Baldwin (7 Vt. 506) ii. 723 V. Brown (3 B. & P. 69) ii. 141 V. Callow (2 Vern. 752) ii. 353 V. Dormer (16 Jur. 366; 9 Eng. L. & Eq. 598; 2 Robertson, 505) i. 116; ii. 125, 255, 262, 765 V. East India Co. (3 East, 192) i. 435, 450 Williams v. Fowler (McClel. & Y. 269) i. 722; ii. 388, 391 V. Gooch (3 Met. Ky. 486) ii. 524 V. Hutchinson (5 Barb. 122; 3 Comst. 312) ii. 527 V. Monroe (18 B. Monr. 614) ii. 391, 398 Williams v. Gates (5 Ire. 535) i. 374; ii. 701, 704 V. Prince (3 Strob. 490) i. 573, 577 V. Williams (3 Barb. Ch. 628) ii. 406, 408, 637 V. Williams (4 Des. 183) ii. 457, 472, 531, 533, 552 V. Williams (3 Greenl. 135) ii. 262 V. Williams (1 Hag. Con. 299) ii. 30, 242, 243, 248, 613, 615, 626, 627, 637, 641 V. Williams (3 R. I. 185) ii. 213 Williamson v. Dawes (2 Moore & S. 352) i. 592 V. Parisien (1 Johns. Ch. 389) i. 299 ; ii. 103, 209 V. Williams (3 Jones Eq. 446) i. 138, 145 V. Williamson (1 Johns. Ch. 488) i. 71, 75 ; ii. 38, 103, 104, 235 Willinck v. Davis (Harper, 260) ii. 75 Willis V. Bernard (8 Bing. 376; 1 Moore & S. 584 ; 5 Car. & P. 342) ii. 621 . , State V. (4 Eng. 196) i. 291, 342 Willson V. Smyth (1 B. & Ad. 801) ii. 401 Wilmmgton v. Burlington (4 Pick. 174) i. 540 Wilmore v. Wilmore (15 B. Monr. 49) ii. 510, 514, 516 Wilmot's case (Sir F. Moore, 851) i. 587 Wilson V. Brockley (1 Phillim. 132) i. 105 V. Burr (25 Wend. 386) ii. 391 V. Carson (12 Md. 54) i. 418,427 V. Green (25 Vt. 450) i. 173 V. Lazier (11 Grat. 477) i. 424 , Rex V. (4 Ad. &. E. 645) ii. 546 V. Walker (3 Stew. 211) i. 424 V. Wilson (1 Des. 219) ii. 373, 604 j;. Wilson (2 Dev. & Bat. 377) ii. 397, 651 [677] woo INDEX TO CASES CITED. WKA Wilson V. Wilson (5 Eng. Ec. 129) ii. 434 W.Wilson (31 Eng. L. & Eq. 29 ; 1 H. L. Cas. 538 ; 5 H. L. Cas. 40) i. 636 ■ V. Wilson (2 Hag. Con. 203) ii. 384, 394 V. Wilson (3 Hag. Ec. 329) ii. 427 V. Wilson (Poynter Mar. & Div. 263) ii. 394 V. Wilson (Wright, 128) ii. 354, 504, 628, 639 V. Wright (Dudley, Ga. " 102) ii. 627 Wilt V. Vickers (8 Watts, 227) ii. 528 Wilton V. Webster (7 Car. & P. 198) ii. 621 Wing V. Hurlburt (15 Vt. 607) ii. 391 V. Taylor (2 Swab. & T. 278) i. 107, 108, 380 Winkley, State v. (14 N. H. 480) i. 442, 479, 486, 495, 496 Winright, State v. (12 Misso. 410) i. 342 Winslow V. Winslow (7 Mass. 96) ii. 296 Winstone v. Winstone (2 Swab. «E T. 246) ii. 477, 492 Wintercast v. Smith (4 Kawle, 177) ii. 714 Winters, People v. (2 Parker, 10) i. 754 Wiseman, Kex v. (2 Smith, 617) i. 786 Wistby V. Wistby ( 1 Connor & Lawson, 537) ii. 239 Withipole's case (Hob. 181) i. 112, 316 Woart V. Winnick (3 N. H. 473) i. 671, 675; ii. 234 Wodell V. Coggeshall (2 Met. 89) fi. 528 Wolf V. Wolf (Wright, 243) ii. 30 Wolverton v. State (16 Ohio, 173) i. 497, 500, 501 Wood V. Adams (35 N. H. 32) i. 345 V. Malin (5 Halst. 208) i. 402 V. Medley (1 Hag. Ec. 645) ii. 309 V. O'Kelley (8 Gush. 406) i. 554 V. Simmons (20 Misso. 363) ii. 714, 715 V. Water ville (4 Mass. 422) ii. 75 [678] Wood V. Watkinson (17 Conn. 600) i. 402 V. Wood (3 Ala. 756) ii. 529 V. Wood (4 Hag. Ec. 138) ii. 626 V. Wood (5 Ire. 674)|S i. 707, 791 ; ii. 90,256, 259 V. Wood (2 Paige, 108; 8 Wend. 357) i. 71, 74 ; ii. 38, 49, 76, 80, 99, 302, 303, 334, 337, 341, 346, 347,408,604, ■606, 620, 642 ■ V. Wood (2 Paige, 454 ; 8 Wend. 357) ii. 365, 406, 409 Woodardo. Bellamy (2 Root, 354) i. 170 V. Spiller (1 Dana, 179) i. 540 Woodbridge v. Austin (2 Tyler, 364) i. 426, 427 Woodrow V. O'Connor (28 Vt. 776) i. 411 Woodruff V. Woodruff (2 Fairf. 475) ii. 639 Woods V. Nabors (1 Stew. 172) i. 463 V. Pindall (Wright, 507) i. 131 V. Woods (2 Curt. Ec. 516) i. 110, 315, 316, 463, 483, 497; ii. 271, 311 Woodward v. Dowse (10 C. B. N. 8. 722) i. 628 , Keg. V. (8 Car. & P. 561) i. 542 Wooldridge v. Lucas (9 B. Monr. 49) ii. 851, 355 Wooley V. Wooley (Wright, 245) ji. 409 Wooster v. Northrup (5 Wis. 245) i. 586 Wooters v. Feeny (12 La. An. 449) i. 582, 599 Worcester, Commonwealth v. (3 Pick. 462) i. 683 V. Merchant (14 Pick. 510) ii. 527 Word V. Word (23 Ga. 281) ii. 365, 367, 673 Worden v. Worden (3 Edw. Ch. 387) ii. 406, 409, 461 Worsley v. Worsley (2 Lee, 572 ; 1 Hag. Ec. 734) ii. 33, 65 Wortly V. Watkinson (2 Lev. 254; 3 Keb. 660) i. 316 Wray v. Cox (24 Ala. 337) i. 557, 565, 617 WYL IHDEX TO CASES CITED. ZYC Wray v. Doe (10 Sm. & M. 452) i. 450 V. Wraj- (19 Ala. 522) i. 712 V. Wray (33 Ala. 187) i. 565 ; ii. 365, 568 Wright'a case (1 Bland, 101) ii. 398 Wright V. Delafield (23 Barb. 498) i. 412 V. Elwood (1 Curt. Ec. 662) i. 292 ; ii. 231, 243, 294 V. Ellwood (2 Hag. Ec. 598) ii. 294 V. Hicks (12 Ga. 155) i. 448 V. Holdgate (3 Car. & K. 158) i. 447 V. Lanckton (19 Pick. 288) i. 483 V. Rutherford (2 Lee, 266) ii. 309 V. Wright (2 Des. 242) i. 588 V. Wright (1 Edw. Ch. 62) ii. 406, 457, 461 V. Wright (2 Md. 429) i. 686 ; ii. 355, 710 V. Wright (15 Scotch Sess. Cas. 767) i. 218 V. Wright (3 Texas, 168) ii. 50, 250, 386, 409, 447, 490, 496, 651 V. Wright (6 Texas, 3) i. 71, 724 ; ii. 46, 58, 262, 268 V. Wright (6 Texas, 29) ii. 375, 439 V. Wright (7 Texas, 526) ii. 510, 512 Wroxton, Rex v. (1 Nev. & M. 712 ; 4 B. & Ad. 640) i. 105, 287 Wyatt, Commonwealth v. (6 Rand. 694) i. 830 V. Judge (7 Port. 37) ii. 133 V. Wyatt (Wright, 149) ii. 677 Wycherly, Reg. v. (8 Car. & P. 262) ii. 590 Wyckoff J). Boggs (2 Halst. 138) i. 342 WyUy V. Collins (9 Ga. 223) ii. 369 Wyman v. Campbell (6 Port. 219) ii. 133 Wynkoop v. Wynkoop (6 Wright, Pa. 293) i. 565 Yarbrough v. Arnold (20 Ark. 592) i. 424 Yates V. Boen (2 Stra. 1104) ii. 566 V. Houston (3 Texas, 433) i. 453, 454, 511 ■ , United States v. (6 How. U. S. 605) ii. 133 V. Yates (2 Beasley, 280) ii. 128, 144, 682 Yelverton v. Yelverton (1 Swab. & T. 574) ii. 120, 130, 131 Yeo u.Yeo (2 Dick. 498) ii. 353, 385 Young V. Foster (14 N. H. 114) i. 441, 442, 443, 537, 543 V. Murphy (3 Bing. N. C. 54 ; 3 Scott, 379 ; 2 Hodges, 144) i. 170 V. Naylor (1 Hill, Eq. 383) i. 299, 663; ii. 291, 696, 727 V. State (15 Ind. 480) ii. 546, 549 V. Young (4 Mass. 430) ii. 327 V. Young (3 N. H. 345) ii. 303 Younge v. Cassa (Ferg. 255) ii. 17G V. Furse (2 Jur. n. 8. 864 ; 26 Law J. N. 8. Chanc. 117) i. 294 Yule V. Yule (2 Stock. 138) i. 726 ; - ii. 356, 508 Z. ' Zeigler v. David (23 Ala. 127) i. 554, 568, 570, 621 Zieber v. Roos (2 Yeates, 321) i. 344 Zule V. Zule (Saxton, 96) i. 299 ; ii. 262, 317, 329, 376, 690 Zycklinski v. Zycklinski (2 Swab. & T. 420) ii. 131 [679] ANALYTICAL INDEX. Note. The object of this Index is simply to enable the person who uses it to trace the order of the discussion for the purpose of finding, in this way, matter for which he would not know under what word to look, in the Alphabetical Index. VOLUME I. BOOK I. GENERAL VIEW OF THE LAW OF MARRIAGE AND DIVORCE. Sectioa CHAPTER 1. The Law op Marriage . . . . 1-20 Universal concurrence as to, in general, 1 ; not as to particulars, 2 ; definition of marriage, 3 ; definition and nature of marriage dis- cussed, 4-18; how regarded in this work, 19; how the law should be, 20. CHAPTER 58. The Law of Divorce . . . . 21-47 Differing opinions as to what should be, 21 ; Roman law, 23, 24 ; Mosaic law, 25 ; differing Christian views, 25 et seq. ; desertion, 26; the Church of Rome, &e., 27-29; views at the Reformation, 30 ; American views, &c., 31 et seq. ; how divorce laws should be interpreted, 47. BOOK IL THE SOURCES OF AUTHORITY IN OUR MARRIAGE AND DIVORCE LAW. CHAPTER a. The English Ecclesiastical Law . . 48-66 Introductory view, 48; its history, sources, &c., 49 - 55 ; is a part of the common law, 56, 57; books treating of this law, 58-62; [681] Chap. 7. analytical index. vol. i. ecclesiastical judges, 63 ; ecclesiastical practice, and importance of understanding it, 64 ; English divorce jurisdiction transferred to a new court, 65. CHAPTER 4. The Common Law of Marriage and Divorce IN THE United States . . . . 66-86 The English ecclesiastical law is common law with us, 66 et seq.f English colonists carry what law with them, 67, 68 ; do not carry the courts, 69 ; distinction between the law and the courts, 69, 70 ; how far the English law binds us in divorce causes, 71 - 77 ; distinction between the law and the practice, 78 ; how far the English divorce practice binds us, 78 - 86 ; rules of court con- sidered, 80-84. CHAPTER 5. The Statutory Law of Marriages and Divorce in the United States . . 87-104 Matter of State, not National, regulation, 87 ; how far Congress may regulate, 88 ; general views of our statutes, and of the dis- cussion, 89 ; some rules of interpretation stated, 90 ; interpreta- tions of some particular statutes stated, 91-104; whether divorce statutes apply to offences already committed, 98-104 ; whether they can constitutionally so apply, 104. BOOK III. imperfections in the constitution op the marriage. CHAPTER 6. The Distinction of Void AND Voidable 105-120 Definition of void and of voidable in marriage, 105 ; nature and . history of the distinction, 106-111; what particular impedi- ments make the marriage void and what voidable, 112-115; effect of voidable in marriage, 116-118; English and American statutes regulating this subject, 119, 120. CHAPTER 7. General View of the Essentials entering into a Valid Marriage . . . 121-123 The general proposition stated, 121 ; how discussed in the following pages, 122, 123. [682] VOL. I. AKALYTICAL INDEX: ChAP. 13. CHAPTER 8. Want op Mental Capacity . . . 124-142 The general statement, 124 ; the ancient doctrine, 125 ; different tests of insanity, 126 ; how, in marriage, 127-129 ; effect of com- mission of lunacy, 130 (see also Vol. II. 566-569); marriage during intoxication, 131, 132 ; deaf and dumb, 133 ; fraud com- bining -with insanity, 134, 135 ; whether this marriage is voidable or toid, 136 - 1 38 ; confirmation of the marriage after the insanity is over, 139-142. CHAPTER 9. Want OF Age 143-153 Mere minority no impediment, 143 ; what is the age of consent to marriage, 144, 145 ; whether it may be controlled by showing puberty, 146 ; how, where parties are under seven years old, 147 ; how take advantage of the defect in age, 147-150; rule as to dower, 151 ; as to legitimacy of children, 152; whether this mar- riage is void or voidable, 153. CHAPTER 10. The Impediment op Slavery . 154-163 What the American common law of slavery, 154; slaves could law- fully marry in Massachusetts and New York, 155 ; but cannot in our Slave States, generally, 156 ; reasons why, 156-158 ; effect of emancipation on slave marriages, 159-163. CHAPTER 11. Fraud, Error, Duress . . 164-215 General view of, 164. Fraud. — Difficulty of the topic, 165; considerations resting in reason, 166-168; peculiar nature of the marriage contract to be considered, 167, 168 ; various points stated, 169 - 209 ; the Scotch law, 198-203. Error. — Various points concerning, 206 - 209. Duress. — Various points concerning, 210-213. Principles common to these impediments. — Party in the wrong not to take advantage of it by suit, 214 ; injured party may confirm this marriage, 214 ; whether this marriage void or voidable, 415. CHAPTER 12. Imperfect Consent where there is no WANT OP Form in the Ceremony, or op Capacity in the Parties. . . 216 - 26T The general doctrine of consent considered, 216 - 228 ; mode of giving the consent in the absence of statutory forms, 229 - 232 ; [ 683 ] Chap. 17. analytical index. vo£. l consent by interchange of letters, 230 - 232 ; how, where there is a consent in form but none in reality, 233 - 245 ; further views concerning the consent per verba de prcesenti, 246 - 252 ; the con- sent per verba defuturo cum copula, 253 - 265 ; the consent by habit and repute, 266 ; whether the marriage, in a case of im- perfect consent, is void or voidable, 26 7. CHAPTEK 13. The Question of Formal Solemnization, AT THE Common Law and under Stat- utes 268-292 Whether the common law requires any formal solemnization, and what forms it has been supposed to require, 269-282; how statutes concerning the solemnization are to be interpreted, 283 - 289 ; some particular statutory provisions considered, 290-292. CHAPTER 14. The Consent op Parents . . . 293-295 No consent necessary at common law, 293 ; how, under various statutes, 294, 295. CHAPTER 15. The Impediment op a Prior Marriage undissolved 296-303 The distinction between the_^ words bigamy and polygamy, 296 ; statutes against polygamy, and how construed, 297, 298; their effect, and the effect of polygamy on the marriage, 299 - 303. • CHAPTER 16. Impediments pollowing Divorce. . 304-307 Effect of divorce on the right to marry, 304 ; statutes prohibiting marriage after divorce, 305, 306 ; the Scotch law — the English House of Lords practice, 307. CHAPTER 17. Impediments op Race and Civil Condi- tion 308-311 Statutes against whites, negroes, Indians, &c., intermarrying, 308 ; same against free negroes and slaves intermarrying, 309 ; mar- riage of a negro who is forbidden to make a contract, &c., 310 ; illustrative civil law impediments, 311. [684] VOL. I. ANALYTICAL INDEX. ChAP. 23. CHAPTER 18. Consanguinity and Affinity . . 312-820 Dissimilarity of these two impediments, 312 ; reasons for the prohi- bition, 313 ; the matter as one of common law with us governed by Stat. 32 Hen. 8, c. 38, and how interpreted, 314-319 ; whether this forbidden marriage is voidable or void, 320. CHAPTER 19. Impotence, or Physical Incapacity . 321-340 The general proposition, 321 ; general view of the doctrine of im- potence, 322 - 324 ; definition of impotence, 324 ; inability of procreation, but not of copula, 325 - 329 ; inability to copulate, with ability to become a parent, 380 ; various forms of impotence considered, 331-340; must exist at the time of the marriage, 332 ; considerations as to its origin and the ages of the parties, 333, 334 ; impotence as to one woman, not as to others, 315 ; classifications of impotence, 336 ; efifect of increasing physiolog- ical knowledge, 337; case of sensitiveness in the female parts, 338 ; the marriage voidable in distinction from void, 339. CHAPTER 20. Wkongful Solemnization of Marriage, 341 - 347 Penal consequences of, 341 ; various statutes and their interpreta- tion considered, 342 - 346 ; refusal by a clergyman or justice of the peace to marry parties applying, 347. CHAPTER 21. Marriages celebrated under Conflicting Laws 348-400 Difficulties, &c., of the subject, 348, 349 ; the general doctrine stated and discussed, 350-370; a particular discussion of the proposition, that a marriage good where celebrated is good everywhere, 371-389; limits of the doctrine, 376, &c. ; effect of Stat. 5 & 6 Will. 4, c. 54, and analogous statutes in this country, 378 - 389 ; a particular consideration of the proposition, that a marriage invalid where celebrated is everywhere invalid, 390-400; the three apparent exceptions to this proposition, 391-400. CHAPTER 22. Suggestions as to the Conflict in Re- spect to Property Rights . . 401-407 Illustrative points, shedding light on the doctrines of the last chapter, 401-407. [685] Chap. 24. analytical index. vol. i BOOK IV. THE PROOFS WHEREBY MARRIAGE AND LEGITIMACY ARE JUDICIALLY ESTABLISHED. CHAPTER 23. Pbeliminaey Inquiry concerning the Evidence and Legal Presumptions as TO THE Foreign Law, where the Mar- riage WAS solemnized abroad . 408-481 Why a discussion of the evidence of marriage is essential in a trea- tise on Marriage and Divorce, 408 ; why this chapter is necessary here, 409 ; vphat is everywhere admitted doctrine on the subject of this chapter, 410 ; there must be some presumption as to the foreign law, 411 et seq., 414; the presumption that it is like our law considered, 411, 412 ; the presumption that it is the common law, 413 ; the anomalous doctrine that the judge may determine what is the foreign law if he chooses, 414 ; that our States are foreign to each other — how, the different parts of the British dominions, to one another, 415 ; summary of American authority on the foregoing topics, 416 ; courts recognize the law of the mother country as far as it is received as common law, 417; foreign law must be proved, 417; whether the proof is for the judge or the jury, 418-421 ; courts recognize the law of nations, and foreign laws which the political power has recognized, &c., 422 ; United States courts, laws of States, &c., 423 ; mode of proving foreign laws, written and unwritten, 424-430; a sug- gested Rule of Court on the subject of the proof, 431. CHAPTER 24. Presumptions of Law connected with the Evidence of Marriage and Le- gitimacy 432-459 Nature and importance of these presumptions, &c., 432, 433 ; the presumption of innocence considered, 434-449; the presump- tion that official persons have done their duty, 450, 451 ; the presumption of life, 452-456; the presumption which always favors marriage, Semper prcesumitur pro matrimonio, 457-459. [686] VOL. I. ANALYTICAL INDEX. ChAP. 38. CHAPTER 25. Records and Certificates of Marriage, , and the like, considered as Evidence OF THE recorded FaCT . . . 460-481 General view of this kind of proof, 460-462; what is a sufficient record, 463-469; what a sufficient certificate of the record, 470; a mere certificate of the marriage, not purporting to be a certifi- cate of the record of a marriage, 471-473 ; foreign records con- sidered, 474-478; proof attendant upon the record, 479-481. CHAPTER 26. Further Views Concerning the Proof of WHAT IS called A MARRIAGE IN FaCT 482 - 502 Introductory considerations, 482 -484 ; general view and definition of the marriage in fact, 485, 486 ; circumstantial evidence in proof of the marriage in fact, 487-493 ; direct evidence, other than record evidence, in proof of this marriage, 494-496 ; the confessions and admissions of the party in proof of this marriage, 497-502. CHAPTER 27. Where the Cohabitation is in its Com- mencement ILLICIT .... 503-618 Difierent aspects under which the question arises, 503 ; difierence, where the law requires a formal solemnization, or not, 504 ; various points and suggestions by which to determine whether a marriage shall be presumed where £he cohabitation was unlawful in its com- mencement, 505 - 513 ; whether and when a divorce may be pre- sumed in order to sustain a marriage, 514 - 518. CHAPTER 28. Special Considerations as to the Proofs where the Solemnization of the Mar- riage WAS in -a Foreign Country 519-536 Under what circumstances this inquiry becomes important, 519; the legal effect of proving a fact of marriage to have transpired abroad, without proving also the foreign law, 521 - 528; assuming it to be necessary to prove the foreign law, what the proper proof of it where marriage is the question in issue, 529 - 533 ; the bur- den of proof as to the foreign law, 534 ; whether the difficulty of proving the foreign law renders the proof of it less important, 635 ; this subject remains only in part controlled by adjudica- tions, 536 ; what the force of legal reason, 536. [ 687 ] Chap. 31. analytical index. vol. l CHAPTER 29. Remaining Questions connected with the Proof of Makkiage .... 537-545 Difference between issues which involve the question of marriage and those which involve only the question of holding out as mar- ried, 537 ; what issues involve what is called the fact of marriage, 538 ; effect, on the proof, of the marriage being clandestine, 539 ; effect of the reputation of marriage, 540 ; declarations of the cohabiting parties, 541 ; judicial records, &c., 542 ; statutes reg- ulating the proof of marriage, 543 - 645. CHAPTER 30. Remaining Questions connected with the Proof of Legitimacy. . . . 546-549 Under what circumstances a child is held to be illegitimate, 546 ; evidences and witnesses, 547 ; child begotten before marriage, but born after, 548. BOOK V. SEPAEATIONS WITHOUT JUDICIAL SENTENCE. CHAPTER 31. Separations restusg in Parol . . 550-629 Some distinctions considered, 550 - 552 ; the husband's duty to sup- port his wife and provide necessaries, its nature and extent, 553 - 557; the legal consequences resulting from a lawful temporary absence of the husband or wife from the matrimonial habitation, 559-567; the legal consequences of a separation caused by the fault of the husband, 568-572; the legal consequences of a separation caused by the fault of the wife, 573 - 577 ; the legal consequences of a separation by mutual consent, 578 - 580 ; com- mon doctrines applicable to the several classes of separations, 581-629; general law of husband and wife binds during sep- aration, 581, 582, 586; where the law presumes the death of the absent party, the case not one of separation, 583 ; married women acting as femes sole under the custom of London, 584, 585 ; effect of the doctrine that the general law of husband and wife binds during a separation, 586 et seq. ; effect of the ancient civil death, 587 et seq.; abjuration of the realm, 587-589; in what cases a wife living separate from her husband without di- [688] VOL. I. ANALYTICAL INDEX. ChAP. 34. vorce can sue and be sued, 589-612; decisions in our several States on the subject, 595-609; how the matter stands in prin- ciple, 611, 612; the wife's presumed agency to bind her hus- band considered, 613 - 618 ; effect of making a suitable voluntary allowance to the wife, 619 ; the burden of proof as to misconduct, where a wife obtains a credit on the husband's account, 620; whether a man who furnishes the wife with money to buy neces- saries can recover the amount of her husband in equity, 621, 622; the rights, as against the husband, of a town supplying the wife with necessaries, 623; whether a wife can be a witness against her husband in a suit for necessaries, 624 ; declarations of wife, action for enticing her away, &c., 625 ; wife leaving her husband and living in adultery, statute of Westm. and Am. statutes, 626-629. CHAPTER 32. Separations under Articles of Sepa- ration 630-656 What this chapter will contain, 630; the doctrine as it stands in legal principle, 631 - 633 ; the doctrine as held in England, 634 - 638 ; the doctrine as received in our several States, 639 - 656. BOOK VI. legislative marriages and divorces. CHAPTER 33. Legislative Marriages . . . 657-659 Consist in removing some disability, &c., 657; whether they are constitutional, 658, 659. CHAPTER 34. Legislative Divorces .... 660-699 How far the subject important, 660 ; general view of the subject, 661-664; whether legislative divorces are constitutional, 664 et seq. ; whether they impair the obligation of contracts, 665 - 669 ; whether they are retrospective laws, 670-679; whether they are an exercise of the judicial power, 680 - 686 ; limitations of the doctrine that legislative divorces are constitutional, &c., 687 et seq.; special constitutional provisions, 687, 688, 690; whether a legislative divorce is a divorce for cause, 689, 690 ; legislative VOL. II. U [ 689 ] Chap. 38. analytical index. vol. x. divorce where the same question is pending in court, 691, 693 ; effect of legislative divorce on property rights, 693 ; legis- lative act dissolving a voidable marriage, 694; same, from bed and board, 695 ; considerations concerning statutes which au- thorize divorce for a cause already transpired, 696 - 699. BOOK VII. CAUSES FOR WHICH JUDICIAL DIVORCES ARE GRANTED. CHAPTER 35. Preliminary View 700-702 The law and the evidence are to be separated in this enlarged edition, and why, 700 ; mere statutory law will not be given, and why, 701 ; difficulties attendant upon separating the law and the evidence, 702. CHAPTER 36. Adultery 703-713 Definition, &c. of adultery, 703 ; supposed distinction between adultery by the man and adultery by the woman, 704 ; whether the divorce for adultery is from bed and board, or from the bond of matrimony, 705, 706 ; living in adultery as a ground of divorce, 707 ; the doctrine of what constitutes adultery discussed, 708-713. CHAPTER 37. Cruelty 714-770 The subject difficult, 714; the definition and general nature of legal cruelty, 715-721; some particular propositions connected with the general doctrine, 722-753; the relative rights and duties of husband and wife, considered in respect to cruelty, 754-760; cruelty by the wife to the husband, 761-763; the effect of ill conduct in the complaining party, 764 - 768 ; distinc- tion between the law and the evidence as respects cruelty, 769, 770. CHAPTER 38. Desertion 771-811 The English remedy for desertion, what, 771 ; the American, 772; language of the different American statutes considered, 773; [690] VOL. II. ANALYTICAL INDEX. ChAP. 1 . the Scotch statute, 774 ; definition of desertion, and meaning of the word " desertion," 775, 776 ; the ceasing to cohabit, 777 - 782 ; the intent to desert, 783 - 794 ; the justification of a desertion, 795-808; the continuity of the desertion, 809, 810; distinction between the law and the evidence, 811. CHAPTER 39. Other Causes op Divorck . . . 812-826 Drunkenness, 813 ; drunkenness with wasting of the estate, 814 ; gross neglect of duty, 815, 816 ; refusing to maintain wife, being of ability, 817-821; uniting with society which believes the relation of husband and wife unlawful, 822; being convicted for crime, 823 ; being absent and not heard of, 824 ; deserting and living in adultery, 825 ; offering indignities, 826. CHAPTER 40. Divorce in the Judge's Discretion . 827-835 Consideration of the various statutes which, without mentioning special cause, or in addition to special cause, authorize the court to grant divorces when deemed just, &c., 827-835. VOLUME II, BOOK I. THE DEFENCES IN DIVORCE SUITS AND IN SUITS FOR DE- CLARING THE MARRIAGE NULL. CHAPTER 1. Preliminary Observations respecting the SEVERAL Defences . . . . • Only defences of a general character to be here considered, 1 ; how applicable in suits for nullity as well as divorce, 2 ; consider- ations respecting the division of the subject, 3. [691] Chap. 6. analytical index. vol. ii. CHAPTER 2. Connivance 4-27 Discussion of the law of connivance, 5 - 12 ; the distinction between the law and the evidence of connivance considered, 13 ; the evi- dence, 14-27. CHAPTER 3. C01.LU8ION 28-32 Collusion what, and how differs from connivance, 28, 29 ; the evi- dence considered, 30 ; the Scotch practice concerning, 31 ; re- cent English legislation, 32. CHAPTER 4. Condonation 33-73 What is condonation, its definition, &c., 33, 34 ; general view of the doctrine of condonation, 36-45; some views which attend the general doctrine, 46 - 52 ; a consideration of the conditional quality of condonation, 53 - 66 ; the distinction between the law and the evidence, 67 - 69 ; the evidence, 70, 71 ; how the doc- trine affected by particular statutes, 72, 73. CHAPTER 5. Recrimination 74-102 The doctrine founded in justice, 74 ; the general principle extends through the entire law, 75, 76 ; general view of the doctrine, 78-82; particular propositions considered, 83 - 96 ; how, where the divorce is only from bed and board, and grantable only for adultery or cruelty, 84 - 89 ; where the divorce sought is from the bond of matrimony, and the act set up in recrimination would authorize only the divorce from bed and board, 90 - 92 ; where the divorce is from the bond of matrimony, and the recriminatory acts would authorize the like divorce, 93 - 96 ; how, where the fact set up in recrimination has been condoned, 97-100; distinction between the law and the evidence, 101 ; the evidence, 102. CHAPTER 6. Lapse of Time and Insincerity . . 103-112 The principle which governs the doctrine as to delay, 103; the doctrine of delay stated and discussed, 104-106; American statutes, 107 ; a late English statute, 108 ; the parliamentary practice, 109 ; the doctrine of insincerity and its connection with that of delay, 110-112. [692] VOL.11. ANALYTICAL INDEX. ChAP. 11. BOOK II. THE LOCAUTT OB JURISDICTION WITHIN WHICH SUITS FOR DITORCE AND FOR NULLITT OF MARRIAGE ARE TO BE PROSECUTED. CHAPTER 7. Some General Views . . . .113-115 The distinction between a court's taking jurisdiction, and admitting a foreign jurisdiction to hav^been rightfully taken, 113, 114; object and course of this discussion, 112, 115. CHAPTER S. Preliminary Inquiry concerning the Law OP Domicile 116-123 Object and need of this discussion, 116 ; definitions and outline of the law of domicile, 117, 118 ; whether a man can have two dom- iciles, &c., 119, 120; different domiciles for different purposes, &c., 121 - 123 ; the domicile for divorce, 121 - 123. CHAPTER 9. How far the Rule that the Wife's Dom- icile FOLLOWS the Husband's, is appli- cable IN Causes of Divorce and Nul- lity 124-131 Importance of this question, 124 ; the general rule and its reasons, 125 ; how far it applies in divorce causes, 125-131. CHAPTER lO. The general Doctrine as to the Local- ity IN WHICH THE SuiT TO DISSOLVE THE Marriage IS MAINTAINABLE . . . 132-142 The distinctions connected with the subject, 132- 136 ; the general doctrine that the jurisdiction belongs to the courts of the domicile, 137-142. CHAPTER 11. Specific Propositions as to the Locality IN which Divorces dissolving the Mar- riage are to be had .... 143-199 Without a domicile in the country there is no jurisdiction, 144 - 154 ; it is sufficient if one of the parties is domiciled in the country, [693] Chap. 15. analytical index. vol. il 155 - 170 ; place of offence committed, immaterial, 171 ; immate- rial where the domicile was at the time of the offence committed, 172-179; immaterial in what country the marriage was cele- brated, 180-198 ; these doctrines not repugnant to United States Constitution, 199. CHAPTER 12. The Divorce feom Bed and Board and THE Decree for Alimony . . . 200-207 How far the doctrines of the foregoing chapters apply to the sub- ject of this one, 200 - 206 ; how, to the suit for nullity, 207. CHAPTER 13. The Jurisdiction under particular Stat- utes 208-214 Views of statutory interpretation, &c., 208, 209 ; some specific phraseology considered, 210 - 214. BOOK III. THE GENERAL PRINCIPLES OF THE PKOCEDUEE, EMBRACING PLEADING, PRACTICE, AND EVIDENCE. CHAPTER 14. The Practice of the English Ecclesias- tical Courts 215-223 How far their practice is common law with us, 215 ; the different kinds of the proceeding, 216 ; meaning of plenary, summary, libel, act on petition, allegation, plea, 216; the answer, 217; how many successive allegations allowed, 218 ; meaning of con- testation, 219 ; admitting a pleading, 220 ; how the evidence is taken, 221 ; term probatory, 221, 222 ; allegation of faculties, act on petition, &c., 223. CHAPTER 15. A General View op the Divorce Suit . 224 - 288 The different kinds of divorce explained, 225 - 229 ; the rule in divorce and nullity causes of consulting the public i^lterest, 230 - 251 ; the public have an interest in these causes, 230, 231 ; whether a divorce suit is civil, or criminal, or how, 232 - 234 ; no divorce by agreement, and the limit of the doctrine, 235 - 239 ; [694] VOL. n. ANALYTICAL INDEX. ChAP. 18. the eflfect of the defendant's confessions, &c., 240-251 ; the issues in the divorce suit, 252, 253 ; the course of procedure in outline in divorce suits, 254 - 261 ; in what court, county, &c., the suit is to be brought, &<;., 254, 255 ; whether the trial is by the court or by jury, 256, 278; principles relating to the jury trial, 257- 260; new trials, &c., 258 - 260 ; divorce procedure similar to procedure in other causes, 261 ; the evidence of marriage in the divorce suit, 262-276; the proofs and witnesses, 277-288. CHAPTER 16. The Suit for Nullity .... 289-294 General view of the suit for nullity, 289 ; the jactitation suit, 290 ; how far a court will take jurisdiction without specific statutory authority, 291, 292; jurisdiction to declare a nullity taken under a statute authorizing divorce, 293; similarity between suit for nullity and suit for divorce, 294. BOOK IV. THE PLEADING AND ITS ACCOMPANIMENTS. CHAPTER 17. The Parties and the bringing of the Suit 295-321 Who may be original parties in divorce and nullity suits, 296 - 301 ; the matter as respects the incapacity of one or both of the par- ties, 302 - 308 ; the intervention of third persons as parties, 309, 310; the bringing of a party into court by notice, 311-315; flexibility of the ecclesiastical suit, 316 ; divorce whether grant- able to the defendant on his prayer, 316, 317; cross-suit, 318; whether and when divorce is grantable for a cause arising sub- sequently to the bringing of the suit, 319 ; eflfect of the pendency of a suit upon a subsequent suit, 320; withdrawing proceedings to institute others, 321. CHAPTER 18. The Pleadings in Court . . 322-349 General views of the libel, 323-325; what particular allegations the libel should contain, 326-344; the pleadings subsequent to the libel, 345-349. , ^ ^^^ ^ Chap. S2. analytical index. vol. u. BOOK V. ANCILLARY PROCEEDINGS AND DECREES ATTENDANT ON THE MAIN ISSUE. CHAPTER 19. Preliminary Inquiry concerning Alimony AS AN INDEPENDENT KeMEDY UNACCOM- PANIED BY Divorce .... 850-363 Connection of alimony with the divorce suit, 350 ; definition of ali- mony, 351 ; the doctrine that alimony has no separate existence, 352; how in England during the Commonwealth, 353; how in our American States, 354 - 356 ; how in Upper Canada, 357 ; the causes for which this alimony will be granted where the jurisdic- tion is admitted, 358, 359; confessions, &c., in this suit, 360; the decree, 361, 362 ; suit abates by the death of a party, 363. CHAPTER 20. Preliminary Inquiry concerning the Question op Costs as between the Parties, considered in Distinction FROM Alimony 364-368 Costs a thing possible as between husband and wife, 864 ; how this doctrine is applied, 365-368. CHAPTER 21. The General Doctrine of Alimony 369-373 Alimony considered in its entire connection with legal proceedings, including proceedings not for divorce, 369 - 373. CHAPTER 22. Permanent Alimony . . . 374-383 Alimony must attend a decree for separation in wife's favor, 374 ; except, &c., 375 ; not a decree for nullity, 376 ; not a divorce in favor of the husband, 377 ; statutory exceptions, 377 ; wife to do equity toward the husband, 380; alimony granted on suit separate from the divorce suit, 381, 382 ; considerations as to the order of the discussion, 383. [696]' VOL. II. ANALYTICAL INDEX. ChAP. 26. ■CHAPTER SSS. Alimony pending the Suit, and Money PAID THE Wife by Order op the Court TO PROSECUTE OR DEFEND . . . 384-426 The reason for granting this alimony, 384, 385 ; must be marriage shown, 386 ; money to the wife to sustain her expenses in the suit, 387; power of wife to charge the husband for these ex- penses as for necessaries, 388-391 ; this doctrine does not meet the requirements of a divorce suit, 39-2 ; meaning of term "costs," 393; where wife has separate property, &e., 394, 395; whether alimony and the wife's expenses are allowable in this country without special statutory authority, 396 - 400 ; the allow- ance protects the husband from being charged with the wife's debts, 401 ; when allowable as respects the kind of marriage shown to exist, 402-405 ; the allowance a matter of judicial dis- cretion, and the rules by which the discretion is regulated, 406-426. CHAPTER 24. Expositions concerning both Kinds of Alimony 427-444 Nature of alimony as a continuous allotment, 427 ; for how long it may continue, 428 ; may be varied from time to time, 429-433 ; how, where the alimony has run in arrear, 434 ; agreements con- cerning alimony, 435 ; how, where wife dies leaving alimony in arrear, 436 - 438 ; suit dismissed, and alimony unpaid, &c., 439, 440; distinction between the ecclesiastical alimony, and alimony under our statutes, 441, 444 ; and between alimony on a partial, and the same on a full, divorce, 441 - 444. CHAPTER 25. The Husband's Faculties whence the Alimony proceeds .... 445 - 453 General view of the wife's claim as respects the ability of the hus- band to pay, 445 - 453. CHAPTER 26. The Amount to be decreed as Ali- mony 454-470 Considerations which blend with the faculties to determine the amount, 455-458 ; the amount to be decreed for temporary ali- mony, 459-461 ; the same, for permanent alimony, 462-467 ; general considerations relating to the amount in both kinds of alimony, 468-470. [697] Chap. 31. analytical index. vol. n. CHAPTER 2'?. Statutokt Alimony and Alimony awarded ON THE Dissolution of the Marriage, 471-484 Special views, applicable in this country, as to the amount, &c., of alimony, 471-473 ; special views, applicable under statutes, and to divorces from the bond of matrimony, as to the amount, na- ture, &c., of alimony, 474-484. CHAPTER 28. The Procedure whereby the Decree for Alimony is obtained and its Payment IS enforced . . . . . . 485-508 The pleadings in respect to alimony, 486-493; the evidence in respect to alimony, 494-496; whether the decree for alimony must be made at same time with decree for divorce, 497; how the court enforces the decree, 498 - 500 ; of obtaining security, and the like, for the payment of alimony, 501 - 508. CHAPTER 29. Division of the Property between the Parties on a Divorce prom the Bond OF. Matrimony 509-519 The general principles which regulate this subject discussed, 509 - 519. CHAPTER SO. The Restoration to the Wife of her Property 520-524 The general principles which regulate this matter, on pronouncing a divorce from bed and board or from the bond of matrimony, dis- cussed, 620-624. CHAPTER 31. The Custody and Support of Chh-dren, 525 - 559 The custody in connection with, and on the termination of, the di- vorce suit, 626-544; the custody where there is no divorce, 545 - 661 ; the support of the children under order or decree of the court, 552-569. [698] VOL. II. ANALYTICAL INDEX. ChAP. 37. BOOK VI. THE PROCEDURE IN SPECIFIC CAUSES OF DIVORCE AND NULLITY; EMBRACING PLEADING, PRACTICE, AND EVI- DENCE. CHAPTER 32. General Views 560, 561 Introductory considerations, concerning the matter of this book, &c., 560, 561. CHAPTER 33. Want op Mental Capacity . . . 562-569 The pleadings, 562, 565 ; burden of proof, 563 ; other matters re- garding the evidence, 564-569 ; commission of lunacy, 666-569. CHAPTER 34. Fraud 570-573 When the court will take jurisdiction, 570 ; form of the libel, 571 ; the evidence, 572, 573. CHAPTER 35. Impotence 574-600 The allegations which the libel should contain, 574 -579 ; whether either party, and which, may be plaintiflf in this suit, 580, 581 ; delay and insincerity, 582, 583 ; considerations as to the age of the parties, 584 ; the proofs, and course of the proceeding, 585 - 600. CHAPTER 36, Adultery 601-647 # How the adultery is to be charged in the libel, 602-611 ; of the evidence as varying from the charge, and of amendments, 608 - 611 ; the evidence, general principles and particular applications, 612-647. CHAPTER 37. Cruelty 648-664 The averments of the libel, 649 - 654 ; the plaintiff's misconduct, 655 ; the evidence as varying from the pleading, and amend- ments, 651 - 654, 657, 658 ; the evidence, general principles, and particular applications, 656 - 664. [699] Chap. 43. analytical index. vol. ii. CHAPTER 3§. Desertion 665-683 The plaintiff's allegation of the desertion, 666 - 669 ; the evidence, 670-681 the locality in which the suit is to be maintained, 682, 683. CHAPTER 39. Other Causes op Divorce . . . 684, 685 The procedure in causes of offering indignities, 684 ; the same, where the parties cannot lire together in peace and harmony, 685. CHAPTER 40. Divorce in the Judge's Discretion . 686, 687 The allegation in this case, 686 ; jurisdiction taken under this head to pronounce the marriage void for fraud, 687. BOOK VII. THE CONSEQUENCES OP THE DIVORCE. CHAPTER 41. Consequences plowing by Law from the ' VALID Sentence 688-741 Analytical divisions of legal subjects may differ, 688 ; considera- tions respecting the division of subjects in this connection, 688, 68d ; the legal effects flowing from the sentence of nullity, 690- 696 ; the divorce from the bond of matrimony, general consid- erations, 697; same, as to the status of the parties, 698-704; same, as to ' the property-rights of the parties and of third persons, 705 - 725, same, as to capacity to be witnesses, &c., 723-725 ; legal consequences flowing from the divorce from bed and board, 726 - 741. CHAPTER 42. The Sentence and its Eppect and Sta- bility 742-767 The rendition of the sentence, what to contain, its form, &c., 743 - 747 ; the permanence and effect of the sentence as between the parties, 748 - 753 ; the same, as respects third persons, 754 - 767. FORMS 768-789 [700] ALPHABETICAL I^DEX. Note. The references are to the sections, except when otherwise specified A. ABANDONMENT. (See Desertion.) ABSENT AND NOT HEARD OF, as ground of divorce, i. 824. ACTION, for criminal conversation, ii. 19, 20, 26, 724. (See Criminal Conversation.) ACT ON PETITION, what it is, ii. 216, 223. ACTS OF SEDERUNT, what, and law of, i. 82. ADMINISTRATION, rights of, after divorce a vinculo, ii. 725. a mensa, ii. 739. ADMISSIONS. (See Default — Confessions.) ADULTERY, proof of marriage in indictments for, i. 442, &c. divorce for, anciently, from bond of matrimony, how now, i. 661. parliamentary divorces for, i. 662. pot ordinarily on prayer of the wife, i. 662. groundless charge of, its effect as cruelty, i. 726. living in, and desertion, a cause "of divorce, i. 825. parties living in the same house after it is once established, ii. 60. recriminatory adultery, ii. 89. general view of, as a ground of divorce, i. e. 36 ; namely, definition of adultery, i. 703. whether it should have the same consequence committed by husband as wife, i. 704. this divorce anciently in England ct vinculo, more recently a mensa, i. 705. [701 J ADU ALPHABETICAL INDEX. ADULTERY, — continued. how it is now in England, i. 704. how in the United States, i. 706. desertion and adultery, i. 707, 825. must be the wrongful intent, the same as in the criminal law, i. 709. . must be voluntary, — how, marriage when the husband or wife is sup- posed to be dead, i. 710. cohabitation under a marriage after an invalid divorce, i. 711. how in case of insanity, i. 712. how if Jews have concubines, i. 713. general view of the procedure, ii. c. 36. the allegation of the adultery in the libel, ii. 602 - 611. specifications of particulars, ii. 607. proof varying from the allegation, ii. 607 - 611. proof of adultery, ii. 612 - 647. plaintiff need not prove all he can, ii. 612. evidence usually circumstantial, ii. 613-616. need not be proved in time and place, ii. 613. courts judge as do other men of sound discretion, ii. 614, 616, 646. but regard former decisions, ii. 615. view the facts in combination, ii. 615. value of rules of decision as to the facts, ii. 616. circumstances leading up to the adultery, ii. 617, 618. three things combine — criminal intent in each, and opportunity, ii. 619. circumstairtial evidence may assume other forms, ii. 620. what the general result must be, ii. 620. terms on which parties lived, ii. 621. that the husband living separate, supported his wife, ii. 622. evidence of cruelty in proof of adultery, ii. 623, 624. familiarities with the particeps criminis and other persons, ii. 625. visit to a brothel, ii. 626. the lodgings of a single man, ii. 627. a fact of marriage with ^articeps criminis, ii. 628. living together under reputation of marriage, ii. 628. effect of falsehood or concealment, ii. 629. making presents, &c., ii. 630, consider modes of life, relative situation, &c., of the parties, ii. 631. venereal disease, ii. 632, 633. stains on defendant's linen, ii. 634. once shown when presumed to continue, ii. 635. incontinence before marriage in proof of incontinence after, ii. 635, 636. verdict in crim. con. against the adulterer, ii. 637. on an indictment, ii. 638-640. [702] ALPHABETICAL INDEX. ALI ADULTERY, — continued. identity and diversity of the parties, ii. 641. decree of confrontation, ii. 641. confessions of defendant, ii. 642. and testimony of agents, and partlceps criminis, ii. 642. husband or wife otparticeps criminis as witness, ii. 643. evidence of character, ii. 644, 645. general view of the evidence, ii. 646. how far the doctrines of this chapter apply in criminal cases, ii. 647. form of libel for divorce for, ii. 770, 772, 773, 776, 777, 782. form of allegation of, in recrimination, ii. 789. ADVANCE TO THE WIFE. (See Costs.) by the husband to sustain her expenses in the suit, ii. 387 et seq. AFFINITY, as an impediment to marriage, discussed, i. 312-320. (See Consanguinity and Affinity.) AGE, (See Want of Age.) want of, and age of consent, i. 143 - 153. of parties in impotence, ii. 584, 586. AGREEMENT, of parties not sufficient for divorce, i. 40, 41. eflfect of an, ii. 235, 238, 239. of marriage, (See Makkiage — Consent.) concerning alimony, effect of, ii. 435. ALIMONY, (See also Division of Property, &c.) cruelty as ground for alimony, i. 729, note, wife may sue for, after decreed, ii. 737, 788. cannot be awarded without jurisdiction over defendant, ii. 201. effect of a foreign decree of, ii. 202. the law and practice of, ii. c. 19 - 28 ; namely, alimony where there is no divorce, ii. c. 19 ; namely, always, in some sense, an independent thing, ii. 350. definition of, ii. 351. nature of, ii. 351, 352. without divorce, when introduced in England, ii. 353. decreed by courts of equity in some of the United States, ii. 354, 355. not generally allowed, ii. 356. how, in Upper Canada, ii. 357. causes for which granted, ii. 358, 359. confessions in evidence, ii. 360. form of the decree, ii. 361. what it may embrace, ii. 361, 362. this suit does not survive, ii. 363. [703] ALl ALPHABETICAL INDEX. ALIMONY, — continued, inquiry concerning costs ietweeri the parties as distinct from alimony, ii. c. 20, § 364 - 368. (See Costs.) the general doctrine of alimony, ii. c. 21 ; namely, rests on the husband's duty to support wife, ii. 369. some general principles considered, ii. 370 - 372. doctrine not confined to divorce law, ii. 373, 385. permanent alimony, ii. c. 22 ; namely, necessarily follows a separation, ii. 374. not if wife has sufficient separate estate, ii. 375. cannot follow a decree of nullity, ii. 376. whether follows divorce a vinculo, ii. 376. no alimony where wife is guilty party, ii. 377. in some States may be given the guilty wife by statute, ii. 378, 379. decree in favor of the guilty husband, ii. 380. whether divorce and alimony must both be in same suit, ii. 381, 382, 492, 497. course of the discussion, ii, 383. when the alimony commences, ii. 426. alimony pending suit, and allowance to the wife to prosecute or defend, ii. c. 23 ; namely, pendency of suit alone entitles wife to, ii. 384, 385. but not until the marriage and husband's faculties are shown, ii. 386, 402-405,496. so of money to sustain the suit, ii. 387. wife's power to bind the husband for counsel fees, &c., as for necessa- ries, ii. 388 - 391. this doctrine does not sufficiently aid the wife in the divorce suit, ii. 392. meaning of the term " costs," ii. 393. this support not given the wife if she has sufficient separate estate, ii. 394. nor if husband is destitute, ii. 395. whether this is the law in the United States without the aid of specific statutory provision, ii. 396-401. it is, on principle, ii. 396. North Carolina and Vermont contra, ii. 397. allowed in the other States, ii. 398, 399. both in courts of law and equity, ii. 400. is for the benefit of both parties, ii. 401. prevents husband being chargeable for necessaries, ii. 401. what kind of marriage must be proved, ii. 402 - 405, 496. allowance in suits of nullity, ii. 402, 403. efi^ect of making voluntary allowance, ii. 404, 425. not a strict right, but generally granted, ii. 406. though the husband denies on oath the wife's allegations, ii. 406. [704] ALPHABETICAL INDEX. ALI ALIMONY — continued. qualifications of this doctrine, ii. 407. in New York, wife, if defendant, must disclose defence, ii. 408. a distinction between the two kinds of divorce, ii. 409. bill taken ^ro con/esso, ii. 410. how costs and expenses finally adjusted, ii. 411. late English doctrines respecting the allowance to the wife to prose- cute or defend, ii. 412-41 7. how they apply in the United States, ii. 418. some further American views, ii. 419 -421. how in Kentucky, ii. 422. what the rule in England, ii. 423. observations on the New York rule, ii. 423, when this alimony commences, ii. 424. , husband having made payments on wife's account, ii. 425. when wife must apply for this alimony, ii. 424, 425. when this alimony ends in permanent, ii. 426. expositions concerning both kinds of alimony, ii. c. 24 ; namely, alimony is an allotment from year to year, ii. 427, 437. not for term of wife's life, ii. 428. may be increased or diminished by the court at its discretion, ii. 429, 430 - 433. how the discretion to be exercised, ii. 430 - 433, 478, 479. how when in arrears, ii. 434. effect of agreement concerning, ii. 435. enforcing payment of, ii. 434, 435. how if wife dies, it being in arrear, ii. 436, 437. if husband dies, it being in arrear, ii. 437, 438. how if suit dismissed after an award of, ii. 439, 440. statutory alimony on divorce a vinculo, ii. 441, 471 et seq. peculiar phraseology, in other cases, ii. 442. in Indiana, ii. 443. considerations concerning statutory alimony, ii. 444. husband's faculties whence the alimony proceeds, ii. c. 25 ; namely, no fixed rule as to the amount, ii. 445. wife support according to her rank, &c., ii. 445. allowable out of husband's earnings as well as estate, ii. 446. proportion less than from fixed property, ii. 446. income, the fund to compute out of, ii. 447. allegation of faculties, ii. 447, 448. reversionary property, ii. 448. ability of parents of parties, ii. 448. how income considered, ii. 449 - 453. bad management and extravagance, ii. 450. VOL. n. 45 [ 705 ] -A^LI ALPHABETICAL INDEX. ALIMONY — continued. encumbrances on husband's estate, ii. 448, 450. mansion-house and demesne, how estimated, ii. 451. when husband is partner in firm, ii. 452. claims of husband's creditors, ii. 453. amount to he decreed as alimony, ii. c. 26 ; namely, other things besides husband's income considered, and what, ii. 455-457. mode of making the computation, ii. 455. remarks thereon, ii. 456. amount sometimes beyond income, ii. 457. as to the sources of the income, ii. 458. temporary alimony, ii. 459 - 461. less than permanent, and why, ii. 459. how much, ii. 460. New York rule, ii. 461. pernjanent alimony, ii. 462 - 467. more than temporary — and peculiar principles, ii. 462. general rule as to proportion, ii. 463, 464. how fluctuates, ii. 463 - 467. reasons for fluctuation, ii. 467. some considerations as to the amount, applicable to both kinds of alimony, ii. 468-470. statutory alimony, and alimony awarded on the dissolution of the marriage, ii. c. 27 ; namely, whether the foregoing doctrines apply in United States, ii. 471, considerations as to the amount in this country, ii. 471 - 473. divorce from bond of matrimony, ii. 474 et seq. view of the Tennessee court, ii. 474, 475. observations, ii. 476. recent English views, ii. 477, 480. New York and Massachusetts views, ii. 478 - 480. considerations growing out of the language of particular statutes, ii. 480. propositions resting in principle, ii. 481 -484. procedure whereby the decree for alimony is obtained, and its payment en- forced, ii. c. 28 ; namely, the pleadings in respect to alimony, ii. 486 - 493. English divorce libel does not mention alimony, ii. 487. whether the American libel should, ii. 488. must be a petition for alimony or allegation of faculties, and what, ii. 489-493. the evidence in respect to alimony, ii. 494 - 496. decree for, need not be at same time with decree for divorce, ii. 497. how decree for alimony enforced, iL 498, 499. [706] ALPHABETICAL INDKX. BRO ALIMONY, — continued. how, where alimony is in arrear, ii. 500. security for payment of alimony, ii. 601 et seq. injunction to secure, ii. 602 - 504. ne exeat to secure, ii. 604 - 608. ALLEGATION, what it is, ii. 216, 223. objecting to the admission of, ii. 220. ALLEGATION OF FACULTIES, what it is, ii. 223. nature of, and what to contain, ii. 447, 448. alimony to be decreed on, ii. 490. AMBASSADOR. (See Embassador.) AMENDMENTS, and the like, may be made in divorce suits, the same as in others, ii. 237. ANSWER, what it is, in the ecclesiastical practice, ii. 21 7, 281. ANTENUPTIAL INCONTIN^iJCE, does not invalidate the marriage, i. 1 79. effect of concealment as to, &c., i. 180 et seq. aids in proof of connivance, ii. 21. how, in the proof of adultery, ii. G36, 636. whether it will justify desertion, ii. 804. ARTICLES OF SEPARATION, (See Separations — Settlement.) effect of, in causes of desertion, i. 806. effect of a license in, to live in adultery, ii. 25. as showing revival of offence condoned, ii. 71. ASSIGNMENT, by husband to defraud wife of alimony, its effect, ii. 550. ATTORNEY, (See Solicitor.) of wife, how compensated, ii. 387 et seq. B. BANNS, whether publication of, must be proved in proof of marriage, i. 451. BASTARD, (See Illegitimate Children.) BELIEF, whether witness may testify to his, in causes of adultery, ii. 285, 286. BIGAMY, (See Polygamy.) what, and considered as an indictable offence, i. 296 - 298. what in the canon law, i. 296. BROTHEL, visit to, in proof of adultery, ii. 626. r707] CHI ALPHABETICAL INDEX. C. CALUMNY, oath of, what it is, ii. 31. may be taken by commission, ii. 148. CANON LAW, (See Ecclesiastical Law — Matrimonial Common Law.) its authority in matrimonial causes, i. 50 - 55. canons of 1603, i. 51, '318. CAPACITY. (See Want of Mental Capacity.) CERTIFICATE, of medical men in suits for impotence, i. 326, ii. 598. CHANCERY. (See Equity.) CHARACTER, evidence of, in divorce suits, ii. 644, 645. CHASTITY, misrepresentation as to, how aflfects validity of marriage, i. 1 79 et seq. solicitations of, whether revive condoned adultery, ii. 55. in proof of adultery, ii. 265. CHILDREN, as witnesses, ii. 280. > how far to obey and serve parents, ii. 527, 528. legitimacy of, settled on decree for divorce, ii. 559. illegitimate after sentence of nullity, ii. 690. wife's, born after sentence of separation,pnma /acie illegitimate, ii. 741. (See also Legitimacy.) ! custody and support of, ii. c. 31 ; namely, r-^ custody as connected with the divorce suit, ii. 426 - 544. how regulated in England, ii. 526. father as guardian, ii. 527. duty to support, ii. 528, 556 - 558. common-law right to 'custody, ii. 529. effect, during divorce suit, of American statutes, ii. 530. how formerly in England on divorce suit, ii. 531. rules which guide the discretion of the court as to the custody, ii. 532-538. pleading and practice as to the custody, ii. 539, 540. the law becoming better as to the custody, ii. 541. the question as it stands in legal reason, ii. 541 - 544. custody where there is no divorce, ii. 545 - 551. support of the children under decree, ii. 552 - 658. effect of decree on father's common-law duty to support, ii. 556 - 558. deciding on legitimacy of children, ii. 559. [708] ALPHABETICAL INDEX, COM CHOSES IN ACTION, husband's right to wife's, after a divorce a vinculo, ii. 714, 715. a mensa, ii. 732 - 735. husband's right to, may be taken away before they are vested, i. 658, 675. CIKCUMSTANTIAL EVIDENCE, when sufficient, ii. 620. (See Adultery.) CITATION, (See Pkocess.) on what ground defendants entitled to, ii. 164. the, &c., in divorce suits, ii. 311 -315. | CIVIL ACTIONS, proof of marriage in, i. 443, &c. CIVIL CONDITION, ' impediments of, to marriage, i. 311. CLANDESTINE MARKIAGE, proof of, i. 488, 539. COHABITATION, meaning of the word, i. 777, note. how far it will confirm marriage, i. 139, 141, 214. an implied condonation, ii. 38-72. (See Condonation.) must be suspended durhig divorce suit, i. 801 ; ii. 40, 369, 374. triennial, in proof of impotence, ii. 585 - 589. (See Impotence.) loose and lascivious, proof of marriage in indictments for, i. 442, &c. COLLUSION, considered as a bar to divorce, ii. c. 3 ; namely, definition of, ii. 28. must be an act of both parties to the suit, ii. 29. proof of, ii. 30, 31. must be proved — vigilance of court easily aroused, &c., ii. 31. oath of calumny in Scotland, ii. 31. recent English legislation, ii. 32. how pleaded, ii. 333 - 342. inferable from delay in bringing suit for divorce, ii. 103 - 112. COMMISSION OF LUNACY, how far evidence of insanity in a nullity suit, i. 13 ; ii. 566 - 569. COMITY, whether it is the principle on which foreign marriages are held valid, i. 361. COMMON LAW, (See Divokce — Matrimonial Common Law.) marriage how contracted by, i. 270 - 282. COMMONWEALTH, alimony granted by chancery during the, in England, ii. 353. [709] CON ALPHABETICAL INDEX. COMPENSATION. (See Recrimination.) CONDITION. (See Rank and Habits of Life.) CONDONATION, considered as a bar to divorce, ii. c. 4 ; namely, definition of, ii. 33, 34. is an act of the mind, but proved according to technical rules, ii. 36. may be express or implied, ii. 37. implies knowledge of the offence, ii. 38. and belief of its existence, ii. 39. law presumes belief after probable knowledge, ii. 39, 40. effect of facts which should excite inquiry, ii. 41, 42. knowledge of ability to prove the offence, ii. 43. must be knowledge of all the adultery, ii. 44. cohabitation with such knowledge a presumed condonation, ii. 38 - 47. once in bed, after knowledge, sufficient, ii. 45. but not strictly against the wife, &o., ii. 45. cohabitation with separate beds, ii. 46. promise or offer of future cohabitation, ii. 47. condonation inferable from delay to sue, ii. 48. but not against the wife, ii. 48, 49. not generally so easily inferred against the wife, ii. 49. distinction as to condonation between cruelty fend adultery, ii. 50-52. whether cruelty the subject of condonation, ii. 51, 52. condonation conditional, ii. 53 - 66. general statement of this doctrine, ii. 53. nature of the condition, ii. 54-57. further principles on which this doctrine rests, ii. 68 - 60. condition may perhaps be obliterated, ii. 61. whether condition may be annexed by special agreement, ii. 62. the question of the condition on principle, ii. 63. some further conditions considered, ii. 64 - 66. distinction between the law and the evidence in condonation, ii. 6 7 - 69. condonation more easily inferred than connivance, ii. 70. deed of separation as evidence of revival of the offence, ii. 71. statutory law of, ii. 72, 73. as evidence of connivance, ii. 22. of the offence alleged in the recriminatory plea, ii. 97 - 99, 334 et seq. inferable from delay to bring divorce suit, ii. 103-112. how pleaded, ii. 333 - 342. CONFESSIONS, of defendant as evidence in divorce and nullity suits, ii. 240 -251. in suits for alimony, ii. 360. [710] ALPHABETICAL INDEX. CON CONFLICT OF LAWS, the, respecting marriage, i. c. 21 ; namely, difficulties attending the subject, i. 348. distinction between this, and the conflict as to divorce, i. 349, 352, 353. some axiomatical propositions, i. 350, 351. resulting consequences, i. 352, 353. domicile not necessary to a jurisdiction to marry, i. 353, 354. therefore a marriage valid where celebrated, valid everywhere, i. 355. this doctrine has been doubted, but it is settled, i. 356. further reasons on which the doctrine rests, i. 357-370. a particular consideration of this doctrine, i. 371 et seq. Massachusetts and Kentucky decisions, i. 371. the English case of Conway v. Beazley, i. 372. view of Mr. Burge, i. 373. the North Carolina court, i. 374. the Louisiana court, i. 375. exceptions, incestuous and polygamous marriages, &c., i. 372, 375-377. the English case of Brook v. Brook, i. 378 - 388. contrasted with the Kentucky decision, i. 389. marriage invalid where celebrated, invalid everywhere, i. 390. exceptions, i. 391 et seq. where marriage cannot be had by local law, i. 392. where the local law allows a departure from the general rule, i. 393-397. an invading army, i. 399, 400. respecting the rights of property consequent on marriage, i. c. 22 ; namely, various principles, explanatory of the doctrines of the last chapter, stated, i. 401-407. as to the proof of the foreign law, generally, i. 408-431. (See Foreign Law.) as to the proof of a foreign marriage, i. 519 — 536. (See Foreign Marriage.) as to nullity of marriage and divorce, ii. c. 7-13. (See LocALiTT.) CONFRONTATION, decree of, in aid of the proofs of adultery, ii. 641. CONJUGAL RIGHTS, suit for restitution of, its origin, i. 27. , nature, i. 771, 772, 778, 804, 806. CONNIVANCE, considered as a bar to divorce, ii. c. 2 ; namely, definition of, ii. 5. corrupt intent the gist of, ii. 6. whether anything less is sufficient, ii. 7, 8. [711 J CON ALPHABETICAL INDEX. CONNIVANCE, — continued. merely to watch the wife for proof, not connivance, ii. 9. connivance at one act is connivance at every act, ii. 10-12. distinction between the law and the evidence in connivance, ii. IS. proofs of .connivance, ii. 14 - 27. not readily inferred, ii. 14. but need not be proved in time and place, ii. 14. proof generally circumstantial, ii. 15. Dr. Lushington's scale, ii. 16. must consider relative duties, &c., of husband and wife, and what, ii. 17, 18, 23, 24. what is not connivance, but may be proof of it, ii. 19, 20. connivance implies knowledge of the offence, ii. 21. not so easily inferred if parties not living together, ii. 21. inferable from too ready condonation, ii. 22. but not against the wife, ii. 22. conduct after adultery committed, evidence, ii. 23. delay to bring suit, ii. 23. license of adultery in articles of separation, ii. 25. verdict at law in suit for mm. con., as evidence, ii. 26, 27, 30. inferable from delay to bring divorce suit, ii. 103-112. how pleaded, ii. 333 - 342. CONSANGUINITY AND AFFINITY, general view of the impediment of, i. c. IS; namely, introductory views, &c., i. 312. differing views of affinity as an impediment, i. 313. affinity the same impediment as consanguinity, i. 314. husband's relations not in affinity to wife's, i. 314. illegitimate children the same as legitimate, i. 315. marriages in the second and third degrees prohibited, i. SIS. half blood same as whole blood, i. 31 7. Archbishop Parker's table, i. 318. later views respecting affinity and consanguinity, i. 319. these marriages voidable at common law, i. 320. how under American statutes, i. 320. how this suit for nullity promoted, i. 320. CONSCIENCE OF THE COURT, what it is, ii. 231. CONSENT, (See Fraud — Error — Duress — Marriage — Want or Mental Capacity, S^p.) to be divorced, its effect on legislative divorces, i. 678. general view concerning, as essential in marriage, i. c. 12 ; namely, introductory views, i. 216, 217. consent the foundation of marriage, i. 218. forms do not supersede consent, i. 219, 220. [712]- ALPHABETICAL INDEX. CON CONSENT, — continued. what must be the terms of consent, when specific, i. 221 - 226. nature of the consent, i. 227, 248, 249. copula not consent, i. 226, 228. no particular form of words, i. 229. consent by interchange of letters, i. 230 - 232. parties must in fact intend matrimony, 233 - 245. three distinct classes of consent, i. 246. distinction between the consent and the evidence of it, i. 247. must be mutual, i. 248. must be present, i. 249. . successive declarations, i. 250, 251. agreement of secrecy, i. 252, 488, 539. consent ^ej' verba de futuro cum copula, i. 253- 265. by habit and repute, i. 266. want of consent, marriage void, i. 267. CONSENT OF PARENTS, to marriage, the lajiv concerning, i. 293 - 295. how far necessary at the common law, i. 293. English legislation and its effect, i. 294. American, and its effect, i. 295. CONSEQUENCES, (See Sentence.) Flowing by law from the valid divorce or nullity sentence, ii. c. 41 ; namely, depend upon the kind of divorce, ii. 689. sentence of nullity, its effect, ii. 690 - 696. same substantially, if marriage voidable, as void, ii. 690, 695. as if there had been no marriage, ii. 690. but not against third persons, ii. 691. effect on laud aliened, &c., ii. 691 - 693. husband bound to wife before marriage, ii. 693. liability for wife's debts, ii. 694. third persons' rights where marriage void, ii. 695. wife's remedy where marriage void, ii. 696. consequences of dissolution of valid marriage, ii. 697 - 725. little light from the English law, ii. 697. in respect to status, ii. 698- 703. frees both parties, if one, ii. 698 - 701. how parliamentary divorces in England, ii. 698. various aspects of the question, ii. 699. as respects statutes against polygamy, ii. 700, 701. divorce in foreign State, ii. 701. prohibitory clause against marrying — effect of foreign divorce, "li. 702-704. in respect to rights of property, ii. 705 - 722. general principle, ii. 705. [713] CON ALPHABETICAL INDEX. CONSEQUENCES, — continued. dower at common law, ii. 706 - 708. allowed tlie innocent wife by statute, ii. 709 - 711. principles relating to, ii. 709. effect of conditional provisions, ii. 710. foreign divorce, ii. 710, 711. curtesy, ii. 712, 713. choses in action, ii. 714, 715. lands conveyed to husband and wife, ii. 716. settlement upon wife, ii. 717. annuity to wife, ii. 718. agreement for settlement, ii. 719. these points on principle, ii. 720, 721. where alimony is decreed in lieu of articles, ii. 722. woman as witness for or against her divorced husband, ii. 723. action of crim. con. ii. 724. rights of administration, ii. 725. divorce from bed and board, its effects, 726 - 74l. general principles, ii. 726. not remarry, ii. 727. bond required in England, ii. 728. how far separates the parties, ii. 729. reconciliation in pais, ii. 729. dower, ii. 730. curtesy, ii. 731. choses in action at common law, ii. 732 - 734. costs due the wife, ii. 732. choses in action under statutes, ii. 735. whether wife may sue and be sued, ii. 736 - 738. right to administration, ii. 739. legitimacy of children, ii. 740. settlement, &c., upon wife, ii. 741. of a legislative divorce, i. 693. CONSPIKAGY, a species of fraud, i. 173. (See Fkaud.) CONSTITUTIONAL LAW. (See Legislative Divorces — Legis- lative Marriages, &c.) CONTESTATION OF SUIT, what it is, in the ecclesiastical practice, ii. 219. CONTRACT, (See Marriage.) is essential as the foundation of marriage, i. 3, 19, 124-127, 166, 167 and note, 218, 219; ii. 193. marriage is not, but a status, ii. 3-19. CONVICTION AND SENTENCE, for crime, as ground of divorce, i. 823. [714] ALPHABETICAL INDEX. CRU COSTS, (See Expenses.) husband's right to wife's, after divorce a mensd, ii. 732. recoverable in divorce and nullity suits, ii. 364. rules pertaining to this matter, ii. 365 - 367. relation of this matter to alimony, ii. 367, 368. English meaning of the term, in divorce law, ii. 393. money to the wife to carry on or defend the divorce suit, ii. 387-400, 405-422. COmSTSEL, (See Solicitor.) of wife, how compensated, ii. 387 et seq. COURT, (See Conscience of the Court.) when discharge duty of jury, ii. 256, 646. must administer law as finds it, i. 136, 294, 331. regard to former decisions in matters of fact, ii. 615. CRIMINAL CONVERSATION, proof of marriage in actions for, i. 422, &c. action for, maintainable after divorce, ii. 724. verdict in, rebuts presumption of collusion, ii. 26. whether admissible evidence in a divorce suit, to prove the adultery, ii. 637. CRIMINAL CONVICTION, as ground of divorce, i. 823. CRIMINAL PROSECUTIONS, proof of marriage in, i. 442, &c. CROSS-SUITS, in divorce causes, ii. 318. CRUELTY, whether may be pleaded in bar to a suit for adultery, ii. 80, 90, 91. ; (See Recrimination.) evidence of, strengthens proof of adultery, ii. 623, 624. its eflfect in causes of desertion, i. 791 - 794. alimony for, without divorce, ii. 358, 359. view of the law of, as ground ofdioorce, i. c. 37 ; namely, difficulties of the subject, i. 714. definitions of cruelty, i. 715 - 717. Lord Stowell's observations, i. 717, note. language of the American statutes, i. 718. courts interfere;to prevent future harm, i. 719. this divorce founded on law of nature,.!. 720. the law and evidence how relatively considered, i. 721. the harm must be to the body, not to the mind, i. 722. different rule in Scotland, i. 723. Louisiana, Texas, &c., i. 724. the question in principle, i. 725. indignities to the mind in aggravation, i. 726, 727. [715] CRU ALPHABETICAL INDEX. CRUELTY, —continued. groundless charge of adultery, foul language, &c., i. 726. matters not pleaded, i. 727. danger may be to health, &c., as well as limb, i. 728. test, whether threatens bodily harm, i. 729. need not be blows, i. 729, 730. how if indignities to the mind tend to disease, i. 731 - 733. motive for the conduct how material, i. 734. if violence, the kind immaterial, i. 735. attempt to debauch servant, &c., i. 735 ; 749. ill treatment of plaintiflf's child, &c., i. 736. doing damage to husband's property, i. 737. desertion, as a branch of cruelty, i. 738, 751. unnatural practices, i. 739. what extent of cruelty sufficient, i. 740 - 751. not a slight assault, &c., i. 740, 743, 748. depends upon circumstances of the case, i. 741. condition in life of parties, i. 741, 742. complaint should not be frivolous, i. 743. but case need not be aggravated, i. 744. one act may be sufficient, and when, i. 744- 747. but must threaten bodily harm, i. 748. throwing bucket of water, i. 748. spitting on wife's face, i. 748. a complication which was held sufficient, i. 749. bad language and bad prayer, i. 750. desertion and adultery, &c., i. 751. danger to " the life," under statutes, i. 752. diversity of cases and circumstances, i. 753. relative rights and duties of husband and wife, i. 754 - 760. important in questions of cruelty, i. 754. whether husband njay flog his wife, i. 754. confine her, i. 755-757. . wife must conform to husband's habits, i. 758. attending church, visiting, &c., i. 758. depriving wife of managing family, i. 759. husband requiring wife to occupy bed with him, i. 760. complaint may proceed from either husband or wife, i. 761, 762. how, when husband complains, i. 761-763. recrimination, i. 764. complainant's conduct must be correct, i. 764 - 768. how if ill conduct met by greater wrong, i. 765 - 767. perfection not required, i. 768. distinction between the law and the evidence of cruelty, i. 769, 770. tM procedure in, ii. c. 37 ; namely, [716] ALPHABETICAL INDEX. DEF CRUELTY, — continued. how the cruelty to be set out in the libel, ii. 649 - 652. what may be shown outside the allegation, ii. 652, 653, 657, 668. amendments, and conformity of proof to allegation, ii. 654. plaintiff's ill conduct, to be shown in defence, must be pleaded, ii. 655. proofs of cruelty, ii. 656 - 664. the acts of cruelty pertain both to the law and the evidence, ii. 656. plaintiff must establish his case, ii. 657. how considered in reference to his allegations, ii. 657, 658. marks and bruises on wife, ii. 659, 660. complaint of wife to maid, &c., as evidence, ii. 659, 661. wife's declarations against husband, ii. 661. record of conviction for assault, ii. 662. demeanor of the parties since suit brought, ii. 663. defendant's admissions, ii. 664. evidence of character in suits for, ii. 645. may be the subject of condonation, ii. 51, 52. CURTESY, after a divorce a vinculo, ii. 712, 713. a mensa, 731, 735. CUSTODY OF CHILDREN. (See Children.) D. DEAF AND DUMB, may contract matrimony by signs, i. 133. DEATH, when presumed, i. 452-456, 583. ' its effect on alimony, ii. 363, 436-438. DECIDED CASES, how to be considered, i. 63. DECLARATIONS, of parties to marriage, effect of, i. 541. DECREE, (See Sentence.) for alimony, what should state, ii. 361, 362, 428. for nullity of marriage, what should state, ii. 265, 759. for divorce, ii. 745. forms, i. 213 ; ii. 777-781, 787. DEED OF SEPARATION. (See Akticles of Separation.) DEFAULT, divorce cannot be rendered upon, ii. 235. but it settles the question, and how far, between the parties, ii. 236. [717] DES ALPHABETICAL INDEX. DEFENCES, what may be shown in bar of the suit, ii. 4 - 112. (See Connivance — Collusion — Condonation — Recrimina- tion — Lapse of Time and Insincerity.) DEFENDANT, whether, can have affirmative relief, ii. 316, 317. DEGREES, within which marriage prohibited, i. 314 - 320. (See Levitical Degrees — Consanguinity and Affinity.) Archbishop Parker's table of prohibited, i. 318. DELAY, how pleaded, ii. 342. DESERTION, necessary absence is not, i. 551. wife departing through husband's fault, i. 569 et seq. Protestant views concerning, i. 26 and note, remedy for, by suit for restitution of conjugal rights, i. 29. Parliament wiE not grant divorce for, i. 662. effect of terms "wilful" and "malicious" applied to, ii. 88, note, in suits for cruelty, i. 738. party's own declarations as evidence of, ii. 659, note, and refusal to provide, ground for divorce, i. 819. and living in adultery, ground for divorce, i. 825. alimony for, without divorce, ii. 358, 359. view of, as a ground of divorce, i. c. 38 ; namely, suit for restitution of conjugal rights the remedy for, in England, i. 771, 778. in the United States, the suit for divorce, i. 772. at present, in England also, to some extent, i. 771. statute law on the subject, i. 773, 774. construction of the statutes, i. 775.' definition of desertion, i. 776. what is desertion, i. 777. what sufficient cessation of cohabitation, i. 778-782. refusal to consummate the marriage, i. 778. whether mere denial of copula sufficient, i. 707-782. not as foundation of suit for conjugal rights, i. 778. the principle as applied to desertion, i. 779. illustration from joining the Shakers,!. 780. the Scotch law, i. 781. the question in principle, i. 782. what sufficient intent to desert, i. 783 - 794. not separation by consent, i. 783. need not commence with the separation, i. 784. the intent coupled with the intent to be reconciled afterward, i. 785. [718] ALPHABETICAL INDEX. DIS DESERTION, — continued. true legal dimensions of the intent, i. 785. consent to separate revocable, i. 786. effect of offer to return, i. 786. the party guilty of desertion not always the one who leaves the habitation, i. 787. wife refusing to follow husband on change of domicile, i. 788 - 790. when one rightly leaves for the other's wrongful conduct, i. 791 - 794. what will justify a desertion, i. 795 - 808. if justifiable, no ground of divorce, i. 795. the justification on principle, i. 796. the Ohio and North Carolina doctrine, i. 797. how in Alabama, i. 798. in Pennsylvania, Kentucky, and New Hampshire, i. 799, 800. in England, — and observations, i. 801, 802, 804, 805. effect of suit pending, i. 801, 802. confinement in prison for crime, i. 803. articles of separation, i. 806. how, when both parties are guilty, i. 807. must give locus penitentice, i. 808. continuity and duration of the desertion, i. 809, 810. distinction between the law and the evidence, i. 811. the procedure, ii. c. 38 ; namely, * how the desertion must be set out in the libel, ii. 666- 669. evidence of desertion, ii. 670-681. the law and the evidence blend, ii. 670. burden of proof, ii. 671. where desertion shown, its continuance presumed, ii. 672. circumstances important to be shown, ii. 673, 674. rules as to when a separation is in law a desertion, ii. 674. wife driving off her husband, ii. 675. women glad to be deserted, ii. 676. other illustrative cases, ii. 677 - 681. in what locality the law holds the desertion to ' have taken place, ii. 682, 683. form of libel for, «co., ii. 774, 789. DISCRETION, how far courts can exercise, in matrimonial causes, i. 136, 331 ; ii. 294. to divorce either from bed and board or from the bond of matrimony, ii. 227. DISCRETION OF THE COURT, as ground of divorce, the law, i. 827 - 835. [719] DIV ALPHABETICAL INDEX. DISCRETION OF THE COURT, — continued. the procedure in, ii. 686, 687. the statute gives jurisdiction over causes of nullity, ii. 293, 687. DISMISSAL, of suit, as evidence of condonation, ii. 48. effect on alimony decreed, ii. 439, 440. effect of judgment of, ii. 766. DIVISION OF PROPERTY, (See Wife.) between the parties on a divorce, ii. c. 29 ; namely, regulated by statute in this country, ii. 509. principles relating to, ii. 510 - 512. giving a portion to the guilty wife, ii. 513, 514. whether the division must be in specie, ii. 515, 516. some Georgia and other cases, ii. 517-519. DIVORCE, (See Consequences — Divorce Suit — Matrimoniai. Common Law — Matrimonial Statutory Law.) general view of the law of, i. c. 2 ; namely, men differ as to what the law should be, i. 21. how look at the history of divorce, i. 22. early Roman history, i. 23. later Roman history, i. 24; Mosaic law, i. 25. doctrine of the Catholic Church, i. 24, 25, 27, 30. Greek " i. 25. Protestant " i. 25, 26, 30. theological views, i. 25, note. reason and mistake of the Catholic belief, i. 27 - 29. origin of divorces a mensd, i. 29. unreasonableness of this divorce, i. 29, 37, 39. more recent English doctrine and its source, i. 30, 38. an attempted reformation, i. 30. how the unwritten law stands in the United States, i. 31. policy of the law, i. 32-47. question not of theology but political expediency, i. 32, 33. actual matrimony, right of every person, i, 33. interest of every State, i. 34. marriage a permanent condition, i. 35. views of Judge Swift, i. 36. vinculum should be dissolved when cohabitation impracticable, i. 38, 40. divorces a mensd discouraged, i. 29, 37 - 39. for what causes divorces should be granted, i. 40. views of Milton and others, i. 41. the legal literature concerning divorce, i. 42. law and practice of South Carolina, i. 38, 39, 42, 43. [720] ALPHABETICAL INDEX. DIV BIVOUCB,— continued. further views, i. 44 - 46. courts should administer the law in its spirit, i. 47. impediments to marriage consequent upon, discussed, i. c. 16 ; namely, effect of the divorce sentence, when uncontrolled by statutes, i. 304. American statutes restraining marriage after, i. 305, 306. Scotch and English legislation, &c., i. 307. other matters ; namely, when to be inferred in order to sustain a second marriage, i. 614 - 518. decree of, necessary to dissolve the marriage, ii. 279. for adultery, (See Adultery.) cruelty, (See Crtjblty.) desertion, (See Desertion.) drunkenness, i. 813. drunkenness with wasting of estate, i.-814. gross neglect of duty, i. 815, 816. refusing to maintain wife while having the ability, i. 817-821. uniting with Shakers, &c., i. 822. conviction and sentence to imprisonment, i. 823. absent, and not heard of, i. 824. desertion and living in adultery, i. 825. offering indignities, i. 826 ; ii. 684. cannot live together in peace and harmony, ii. 685. discretion of the court as a cause, i. 827 - 835 ; ii. 686, 687. legislative divorces, (See Legislative Divorces.) judicial divorces for past offences, i. 98 - 104, 696 - 699. form of libel for, ii. 770, 772- 777. DIVORCE SUIT, (See Alimony — Nullity Suit.) the, general view of, ii. c. 14 ; namely, scope of this chapter, ii. 224. definition of divorce, and different kinds, ii. 225. may be by legislative act or judicial sentence, ii. 226. sometimes may be either a mensd or a vinculo, ii. 227. a mensOf whether for limited time, ii. 228. same principles govern proceedings for different kinds, ii. 229. public a party to matrimonial suits, ii. 230, 231. whether divorce suit is civil or criminal, ii. 230 - 234. is a triangular civil suit, ii. 234. public how interested, ii. 234 - 237. default does not bind the public, ii. 235. but does the party, ii. 236. technical objections, amendments. Sec, ii. 237. agreement to obtain a divorce — a Connecticut case, ii. 238. other like cases, ii. 239. confessions of defendant in evidence, ii. 240- 251. VOL. II. 46 [ 721 J DOM ALPHABETICAL INDEX. DIVORCE SUIT,— continued. sole confessions not sufficient proof, ii. 240. rule of both the common and canon laws, ii. 240, 241. not altogether excluded, ii. 242. weight less in suits of nullity, ii. 243. nature and amount of evidence to corroborate, ii. 244, 245, 248, 249. private examination by the judge, ii. 247. whether defendant must plead negatively, ii. 248. general result of doctrine about confessions, ii. 248. statutory modifications of the doctrine, ii. 250, 251. points to be established in evidence by the respective parties, ii. 252, 253. the county, the court, &c., for bringing the divorce suit, ii. 254, 255. whether the judge or jury tries the issues of fact, ii. 256. new trials, &e., ii. 257 - 260. the procedure in divorce causes assimilates to that in others, ii. 261, 288. proof of the marriage in divorce causes, ii. 262 - 276. plaintiff must prove it, ii. 262. what kind of marriage it must be, ii. 263. how of voidable marriage, ii. 264. in suits for nullity, ii. 265. amount and kind of proof of, ii. 266 - 275. legislative alterations of the rule, ii. 276. witness to prove marriage in nullity, ii. 277. other evidence in the divorce