(5orn?U Sam ^rljool SIthtarg KF 535.N4r"' ""'"""•'"■"'"'>' and ann 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/cu31924018828727 A TREATISE ON THE LAW OF DIVOECE AND ANNULMENT OF MAREIAGE INCLTJDINa THE ADJUSTMENT OF PROPERTY RIGHTS UPON DIVORCE, THE PROCEDURE IN SUITS FOR DIVORCE, AND THE VALIDITY AND EXTRATERRITORIAL EFFECT OF DECREES OF DIVORCE WILLIAM T. NELSON Of the Omaha, Neb., Bas IN TTVO VOLtTMBS YOLUME II CHICAGO CALLAGHAN AND COMPANY 1895 Copyright, 1895, BY WILLIAM T. NELSON. STATE JOUENAL PEIirnNG COMPANY. Frintebs and Stbheotypbiis, uaoisom, wis. TABLE OF CONTENTS. YOLUME II. Sec. 565. 566. 567. 568. 569. 570. 57J. 575. 57a 577. 578. 579. 580. 581. 583. 583a. 583. 584 585. 586. 587. 588. 589. 590. 591. ANNULMENT OF MARRIAGE. In general , Divorce and annulment disti Void and voidable . Void marriages . . Voidable marriages Defenses to nullity suit Practice and procedure nguished PRIOR MARRIAGE UNDISSOLVED, In general General doctrine of this chapter When prior marriage is undissolved the second marriage is void When second marriage is voidable under statutes Void although divorce subsequently obtained Presumptions in favor of marriage Knowledge that disability has been removed Marriage before decree nisi is made absolute Marriage during time for appeal Marriage after a decree a mensa . Belief that prior marriage was dissolved by death Belief that prior marriage was dissolved by divorce Marriage after void decree of divorce Decree obtained by fraud .... Remarriage of guilty party Bigamy as a cause for divorce Effect of void marriage at the common law Void marriages under the civil law Page. 539 530 583 533 534 585 536 537 538 539 540 641 543 545 546 547 548 549 549 650 554 555 658 559 560 FRAUD, ERROR AND DURESS. 600. In general 563 601. Jurisdiction in the absence of statute 665 IV TABLE OF CONTEKTS VOLUME 11. Sea Page. 602. Fraud where the marriage is not consummated . . . 566 603. Affirmance of marriage 568 604. Misrepresentation of chastity 569 605. Representing her child legitimate .570 606. Pregnancy concealed from innocent husband . . . 570 607. Concealed pregnancy, husband guilty of fornication . . 573 608. False representation as to paternity 574 609. False representation as to paternity — Child born before marriage • 575 610. Pretended pregnancy 576 611. Conspiracy to bring about marriage 577 613. False representations as to wealth and character . . 579 613. Fraud in obtaining license — False ceremony . . . 583 614 Misrepresentation of age ....... 584 615. The evidence of fraud . . ' 584 616. Error or mistake 586 617. Duress, in general 587 618. "What duress is sufficient 588 619. Unlawful arrest or imprisonment 590 620. Marriage under arrest 591 691. Threats of arrest and imprisonment 591 633. Duress from other parties 593 633. Effect of consummation 593 634. Pleading and evidence 593 INSANITY AND MENTAL INCAPACITY. 650. In general 594 651. Insanity as a cause for divorce 595 653. Post-nuptial insanity . . ■ 596 658. Not mere mental unsoundness 597 654. The test of business ability . . . . . , . . 598 658. Ability to understand the nature of the marriage contract 600 659. To what extent must the nature of the marriage contract be understood _ 601 660. Insane delusion 603 661. Lucid interval 604 663. Hereditary insanity 604 663. Other forms of mental incapacity 605 664. Marriage while drunk 605 665. Suicide 606 668. Burden of proof and presumptions 607 667. Effect of previous finding of insanity by inquisition . . 607 668. Conduct at marriage ceremony 609 669. Deliberate preparations for marriage 609 TABLE OF CONTENTS VOLUME II. V Sea Page. 670 AflBrming marriage . . . _ 610 671. How marriage disafiirmed 611 672. Statutes declaring marriage void or voidable . . .613 IMPOTENCY. 675. In general 615 676. Impotency defined 617 677. Physically incapacitated 617 678. Matrimonial incapacity 617 679. Physically incapable 617 680. Must be permanent or incurable 618 681. Forms of impotence 619 682. Refusing intercourse 620 683. Impotence as a fraud 630 684. What will bar the action — Adultery not a bar . , .621 685. Age of parties 621 686. Deed of separation not a bar 621 687. Recrimination not a bar 621 688. Delay 633 689. Insincerity 623 690. Estoppel — Impotent party as plaintiff .... 634 691. Pleading — In general 624 693. How impotency alleged 625 693. Different forms of impotency may be joined . . . 626 694. Evidence — In general 626 695. Burden of proof 628 696. Triennial cohabitation 628 697. Inspection of the person 629 698. Power of our courts to compel inspection .... 630 699. Power denied 631 700. When inspection necessary 632 701. Inspection by commission 634 702. Personal injury cases 635 703. Order for inspection, how enforced 637 704. Effect of decree — Whether divorce or annulment . . 638 705. Impotency renders the marriage voidable .... 638 CONSANGUINITY AND AFFINITY. 710. In general 640 711. The Levitical degrees and the common law . . . 641 713. How the degrees are computed . . . . , . . 643 713. Consanguinity 643 714. Affinity 644 715. Modern statutes 644 VI TABL-E OF CONTENTS — TOLITME n. See. MISCEGENATION. p^ge. 716. In general 6*6 717. Mulatto 64? 718. Persons of color and white persons 648 719. Civil rights bill, or fourteenth, amendment .... 648 730. Siich marriages valid unless declared void by statute. . 650 WANT OF AGE. 731. In general . ' 651 733. Consent of parents , . . 653 733. Affirming marriage 654 734. How marriage disalHrmed 654 725. Statutes affecting the common-law age of consent . . 666 PARTIES. 736. Who may maintain a suit for divorce or annulment 727. Third persons as defendants — Eight to intervene 728. Coverture, infancy and guardianship . 739. Insane persons as parties . . . . . 729a. Death of parties and revival of suit 659 660 663 665 670 PLEADING. 730. The petition 675 781. Allegation of jurisdiction 676 733. How marriage alleged . . , 678 733. Plaintiff need not anticipate defenses 679 784 Premature suit , , 680 735. Joinder of causes 681 736. Causes for ancillary relief may be joined .... 683 737. The prayer 684 788. Verification 686 739. Bill of particulars 687 740. Supplemental pleadings 688 741. Amendments 689 743. Demurrer .......... 691 748. Answer 693 744 Cross-bill for affirmative relief 693 745. Statutes permitting cross-bills 697 746. Applications for temporary alirflony 760 747. Applications for permanent alimony . , . . ^ 70t 748. Decree •fH^ TABLE OF CONTENTS — VOLUME IL VU ggp FORMS OF PLEADINGS AND DECREES. pg^gg_ 750. In general 708 751. Petitions for divorce 707 753. Petition for divorce on account of cruelty .... 711 753. Answers iiLsuits-for divorce 713 754 Answer and cross-petition for divorce . . . . 713 755. Petition for annulment of marriage 714 756. Petition to annul marriage contracted in good faith and to have children declared legitimate 715 757. Petition for maintenance of child after divorce . . . 716 758. Petition to set aside a fraudulent conveyance . . . 717 759. Petition for alimony without divorce 919 760. Applications for alimony 719 761. Order for temporary alimony 731 763. Decrees of absolute divorce 733 763. Default upon constructive service 734 764 Decree of separation or limited divorce .... 735 765. Decree of nullity 735 766.. Decree for permanent alimony 726 767. Decree awarding alimony, custody of children and use of homestead 738 768. Decree restraining sale of property and restoring the wife's property and awarding use of homestead . . . 730 EVIDENCE. 774 In general > • 733 775. Default 733 776. Depositions .735 777. Proof of marriage 735 778. Husband and wife as witnesses 738 779. Necessity of corroborating testimony of a party . . 741 780. What corroboration is sufficient 743 781. Confessions and admissions , - 744 782. Privileged communications between husband and wife . 747 788. Privileged communications to physicians and attorneys . 749 784 Testimony of children of the parties 750 785. Relatives and servants as witnesses 750 TRIAL AND APPEAL. 800. The trial — Open court 753 801. Trial by jury and verdict 753 803. The right to open and close 754 803. When the divorce suit follows the code procedure . . 754 804 Change of venue 756 805. The right to dismiss 756 vm TABLE OF CONTENTS VOLUME II. Sec. Page. 806. Reference 758 807. Costs . . . : 760 808. New trials . . 763 809. Appeal 763 PROCESS AND CONSTRUCTIVE SERVICE. 815. Process or summons 771 816. Waiver of process 773 817. Constructive service 773 818. Defective service, when void 775 819. The affidavit of non-residence 777 830. Sheriff's diligence before publication 779 831. The notice 780 833. Mailing copy of summons and petition to defendant . . 781 838. Proof of publication 783 834. Personal service out of the state 783 835. Decree based on constructive service, how vacated . . 786 TEMPORARY ALIMONY. 850. In general . . , . , . 788 851. The power to grant temporary alimony . 789 853. Annulment of marriage ...... . 790 853. Evidence on application for alimony — Proof of marriage . 793 854. Same — Probable cause for divorce dr a valid defense . 798 855. Same — Poverty of the vrif e . 803 856. Same — The husband's income . 806 856a Defenses to application . 807 857. Same — Misconduct of the wife ..... . 808 858. Same — Offer to support wife . 809 859. Amount of temporary alimony 809 860. When temporary alimony commences and terminates 815 861. How the order is enforced 817 863. Appeal 818 863. Temporary alimony on appeal SUIT MONEY AND ATTORNEY'S FEES. 830 875. In general 833 876. Action at law for attorney's fees 835 877. How obtained after dismissal 830 878. Number of counsel 833 879. Amount of attorney's fees . 833 880. The order for attorney's fees 835 881. Contingent fee 836 883. Attorney's lien . 836 TABLE OF CONTENTS VOLUME IL IX PERMANENT ALIMONY. Sea 900. In general 901. Permanent alimony of the common law 903. Permanent alimony on decree of separation 903. Distinction between common-law and statutory alimony 904 Liability of wife to pay the husband alimony 905. When alimony is refused 9056t. Annulment of marriage 906. Alimony where a divorce_is denied 907. When a guilty wife may receive alimony^ 908. The amount of the permanent allowance 909. Compensation for the wife's property rights 910. Compensation for injuries . 911. Compensation for loss'of support 913. The husband's income and property 913. The wife's income and property . 914. The support of the children 915. Agreements relating to alimony . 916. Other circumstances which determine the amount 017. Allowance where the husband has no property . 918. Pleading and practice Page. 838 840 843 844 847 848 849 850 851 854 858 860 863 863 864 865 865 866 868 869 THE DECREE FOR ALIMONY. 930. In general 873 931. Whether in gross or in instalments 873 933. When the permanent allowance terminates . . . 877 983. Whether marriage of the divorced wife terminates her ali- mony .......... 883 933a. Revision of decree for alimony 884 934 When permanent alimony will be revised .... 888 935. Alimony where there is no personal service . . . 890 936. Alimony after divorce 891 937. When alimony is exempt 898 938. The wife as a creditor of the husband 900 939. Attachment for contempt 909 940. Writ ne exeat regno 908 941. Other means of enforcing payment 910 943. Suit on foreign decree for alimony 913 943. Suit on decree for alimony rendered in another state . . 913 DIVISION AND RESTORATION OF PROPERTY. 960. In general 961. Whether the property allotted is alimony 963. Division of property by divesting title 916 918 919 X TABLE OF CONTENTS VOLUME H. Sec. 963. Division of property by other means . . . • 964. Enforcing agreement to convey title . . . . 965. How the property is divided 966. Practice in the division of property CUSTODY AND SUPPORT OF CHILDREN. 975. In general 976. The relative claims of the parents 977. Custody during suit for divorce . 978. Access to children 979. Custody where a divorce is denied 980. Eifect of order of custody rendered in another state 981. Support of children after divorce 983. Support where decree is silent as to custody 983. Support where custody awarded to wife 984 The order for custody and support 985. When modified Page. 933 937 937 933 934 936 940 942 943 944 946 949 950 953 954 ALIMONY WITHOUT DIVORCE. 1000. In general 958 1001. The question as affected by statute 965 1003. When maintenance is granted 968 1003. The procedure 971 DECREES OF DIVORCE. 1030. In general 975 1031. Decree TOSJ 976 1033. Divorce from bed and board 977 1033. Decree of nullity .983 1034 Divorce from the bonds of matrimony — In general . . 984 1035. After divorce tenants by the entirety become tenants in common 985 1036. Dower 987 1037. Mairiage settlements and articles of separation . . , 993 1028. The wife's interest in the policy of insurance . . . 993 1029. Name of wife after .divorce 994 1030. Curtesy and husband's interest in the wife's property after divorce 995 1031. Homestead 997 1033. Federal homestead 1003 1033. Effect of decree obtained in another state on constructive service 1003 TABLE OF CONTENTS — VOLUME H. XI ggjj^ ANNULLING DECREE FOR FRAUD. p 1050. In general 1007 1051. False or insufficient evidence 1009 1053. Fraud in concealing proceedings and preventing defense . 1011 1053. Whether decree vacated' after one party has married . . 1013 1054. The death of one of the divorced parties is not a bar . .1015 1055. When parties are bound by a decree obtained by collusion . 1015 1056. Delay and estoppel 1018 1057. Procedure in vacating decree obtained by fraud . . . 1021 DIVORCE STATUTES. Causes fob Divorce 1025 Domicile of Parties 1053 England, Statutes Relating to Divobce in . . ' . ,. 1064 Statutes Relating to Constructive Service .... 1069 California Code 1077 North Dakota 1087 THE LAW OF DIYORCE. ANNULMENT OF MARRIAGE. § 565. In generaL 566. Divorce and annuliuent dis- tinguished. 567. Void and voidable. § 568. Void marriages. 569. Voidable marriages. 570. Defenses to nullity suit 571. Practice and procedure. § 666. In general. — It is the purpose of this chapter to oonsider in. a general way the nature and incidents of pro- ceedings to annul void and voidable marriages. Not all the questions relating to the proof and validity of marriage need be included ia this subject. The purpose is to state the grounds for the annulment of marriage and the effect of the nullity decree. The grounds for which a marriage was annulled by the ecclesiastical courts were precontract, consanguinity, affinity and impotence, and these are called canonical disabilities and rendered the marriage voidable. These courts also, in common with the common-law courts, declared marriages void on account of prior marriage, want of age, mental incapacity, and want of solemnization. As the church held marriage to be indissoluble and refused ab- solute divorce for misconduct after marriage, many doubt- ful interpretations were resorted to by the ecclesiastical courts to declare a marriage void. If a party agreed to marry one person and during the existence of this agree- ment married another, the marriage was declared void on account of precontract, and the court would compel the execution of the prior agreement. The degrees of consan- guinity and affinity were greatly extended until a marriage was voidable on accoimt of relationship of the seventh de- 84 530 AJOTULMENT OF MAEEIAGE. [§ 566, gree of the canonical reckoning, or the fourteenth degree of the civil law. Sexual intercourse or fornication was held to create the same affinity as a valid marriage, and thus the validity of marriage was brought into such great uncertainty that the law was changed by legislation.' Precontract is not therefore one of the common-law grounds for annul- ment of marriage, and the extreme degrees of consanguinity and affinity were changed by statute before we derived our unwritten law from England. Both tiie law and equity courts had jurisdiction at common law to declare a marriage void, but a direct proceeding for this. purpose was brought in the ecclesiastical courts only. The jurisdiction to annul a marriage is generally conferred by statute upon certain courts, and in the absence of such stat- utes only courts of equity will have jurisdiction to annul a marriage in a direct proceeding, and this jurisdiction must be under some head of equity, as the power to annul contracts for fraud.^ This question will be noticed under the various subjects relating to grounds for annulment of marriage.' Where marriage is void by operation of common law or statute either party is entitled to a decree of annulment. It would seem that the incapable party would be estopped from setting up his own incapacity. But estoppel does not apply to such cases, as it cannot add validity to that which is void. The incapable party may therefore be entitled to relief.^ § 566. IMvorce and annulment distinguished.— ! The term dmorce, in its accurate sense, denotes a dissolution or suspension by law of the marital relation. As a legal term, iFor statement of the various *See Amory v. Amory^ 6 Eok acts see Wing v. Taylor, 3 Swab. & (N. Y.) 514; Bobbins u Potter, 98 T. S78. Mass. 532. 2 Teft V. Teft, 35 Ind. 44 See ju- For parties to nullity proceed- risdiction of federal courts to annul ings, see § 760. a written contract of marriage on For effect of decree of nullity, see account of fraud. Sharon v. Hill, § 1023. 20 Fed. 3; Sharon v. Terry, 36 Fed. Effect of void marriage at com- 337. mon law, see § 590. ' Jurisdiction to annul for fraud. Whether divorce or annulment § 601. For impotency, § 675, for impotence, see §§ 704, 705. § 566.] AMfULMENT OF MAEEIAGB. 531 and unaided by context, it means a dissolution of the bonds of matrimony.! |When a marriage is dissolved the action of the court proceeds upon proof that a valid marriage existed and created rights and liabilities. ! The decree of divorce usually proceeds to make a final adjustment of these liabili- ties. ]The decree of annulment declares in effect that no valid marriage ever existed, and restores the parties to their former positionjand relieves them from civil and criminal liability. The decree of divorce operates from the time it is rendered, but the nullity decree relates back to the time the void marriage was entered into. This distinction, though easily comprehended, does not appear in the early books and reports. Blackstone, in re- ferring to the two kinds of divorce, says that the " total divorce, a vinculo matritnonii, must be for some of the canonical causes of impediment before mentioned, and these, existing before the marriage, as is always the case in con- sanguinity ; not supervenient or arising afterwards, as may be the case in affinity or corporeal imbecility. iFor in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio." The same failure to distinguish the terms divorce and annulment may be noticed in our statutes^which provide that marriages may be dis- solved for certain causes, among which are "any causes rendering the marriage originally void ^ or voidable ; " ' pregnancy of the wife, unknown to the husband at the time of marriage ; * impotence or physical incapacity at the time of marriage ; where either party has a former husband or wife living ; where the marriage was procured by fraud or duress ; ^yhere marriage was solemnized while either party was under the age of consent ; ' or when the parties to the marriage were related within the prohibited degrees. These 1 Miller v. Miller, 33 Cal. 355. ' souri, North Carolina, Tennessee, 2 "Washington. Virginia, West Virginia, Wyom- = Rhode Island ing. < Alabama, Georgia, Iowa, Kan- ^ Delaware, sas, Kentucky, Mississippi, Mis- 632 ANNULMENT OF MARKIAGE. [§ 567. grounds are clearly those of annulment and not divorce. To give these statutes a literal interpretation would lead to absurd consequences not intended by the various legislatures. It is held that these statutes, when interpreted with refer- ence to the common law and our entire system of jurispru- dence, require a decree of nullity, and not a decree granting a dissolution of marriage.' Wher^ the distinction appears in a statute which provides for both divorce and annulment, and permits the court to grant alimony upon decreeing " the dissolution of a marriage, and also upon decreeing a divorce, whether from the bonds of matrimony or from bed and board," the term " dissolution " refers to divorce and not an- nulment.^ § 567. Toid and voidable. — The terms voict and voiddbU are ambiguous, and without the aid of other terms cannot be used with accuracy, because there are shades of meaning for which we have no word and resort must be had to other terms. It will be of some assistance to say how these terms are used with reference to marriage. A marriage is said to be v6id when it cannot be ratified or afiirmed by the parties, and voidable when it is not absolutely invalid, but may be rendered valid by conduct aflBrming it, or if not affirmed it may be declared void. The term void is applied where some act is in violation of law, and no person is bound by it, and any person may plead and prove its invalidity. But where an act has some force, but is capable of being affirmed or disaffirmed by an interested party, it is said to be voidable. The decree may declare a marriage void which before it was rendered was voidable. After such decree the marriage is lit is held that a statute per- distinct and positive legislation, mitting a divorce, "where either Smith v. Smith, 5 O. St. 33. To of the parties had a former hus- render a divorce for this cause band or wife living at the time of would in effect render the second solemnizing the second marriage," marriage voidable, since it would does not render the second mar- exist until one party chose to ap- riage voidable, because it was ab- ply for divorce, solutelyvoid, and could not be con- ^gtewart v. Vandervort, 34 W. sidered voidable in the absence of Va. 534> 13 S. B. 736. § 568.] AUNULMIST OF JIAIiEIAGE. 533 not, in some respects and legal consequences, as a marriage ■which was absolutely void before decree. There is no term in common use which distinguishes between the void mar- riage and the marriage declared void. § 568. Void marriages. — A marriage is void when it has no legal effect, confers no marital or property rights, im- poses no duties or liabilities, and is incapable of subsequent ratification. Marriages are void when declared so by stat- ute, and when there is a valid prior marriage undissolved. The invalidity of such marriage may be shown in any pro- ceeding, direct or collateral, by any party and at any time.* This rule seems to be so stated in the books, but there is one important exception : that after the death of one of the par- ties the other cannot have the marriage annulled.^ It may be questioned, however, in a collateral proceeding, after the death of one or both parties.' As the void marriage created no obligations or status, the capable party may marry again without first obtaining a decree annulling the void marriage.* But a decree of annulment during the life-time of both par- ties is to be preferred, because a fair trial may be had while both the parties and their witnesses are living, and a decree of a court of competent jurisdiction will prevent subsequent litigation in other jurisdictions.'' The children of parties to 1 1 Bishop, Mar., Sep. & Div., § 258, - Rawson v. Rawson 156 Mass. 578, eiting Shelf, Mar. & Div. 479; Wil- 31 N. E. 653; Hinks v. Harris, 4 Mod. son V. Brockley, 1 Phillim. 132; 183; Heming w Price, 13 Mod. 432; Ferlat v. Gojon, Hopkins, 478; Brownsword u Edwards, 3 Ves. Sr. Hantz V. Sealy, 6 Binn. 405; Gath- 343. ings w. Williams, 5 Ire. 487; Hem- ^ inQmshill v. Murray, 1 Bland, ming V. Price, 13 Mod. 433; Patter- 479; Pingree v. Goodrich, 41 Vt. 47. son V. Gaines, 6 How. (U. S.) 550; * Gaines v. Relf, 12 How. (IT. S.) Fornshill u Murray, 1 Bland, 479; 473; Patterson v. Gaines, 6 How. Mount Holly v. Andover, 11 Vt. (U. S.) 550; Williams u Williams, 6S 326; Rawdon V. Rawdon, 28 Ala. Wis. 58; Lincoln u Lincoln, 6 Rob. 565; Middleborough v. Rochester, (N. Y.) 635; Martin u Martin, 23 Ala. 13 Mass. 363; Higgins v. Breen, 9 86. Mo. 493; Smarts. Whaley, 6 S. & 'See complications arising in the M. 308. This rule is approved in Gaines cases, supra, and also in Williams v. Williams, 63 Wis. 58. the Hill v. Sharon cases, cited in 534 ANNULMENT OF MAEKIAGE. [§ 509. a void marriage are illegitimate.^ Since the marriage is void, the Avoman did not become a wife, and is not entitled to dower or the rights of a vvidow.^ The rigor of the common law has been modified by legis- lation in most of the states. The statutes in effect provide that if the void marriage was contracted in good faith, and with the full belief that the former husband or wife was dead, the issue of the second marriage shall be legitimate.' The void marriage is in effect only voidable under statutes which provide that a void marriage shall be valid until its nullity is adjudged by a court of cordpetent jurisdiction.* The interpretation and effect of these statutes will be con- sidered under the appropriate subjects. § 569. Toidable marriages. — A marriage is voidable when it is not so imperfect or contrary to law that the im- perfection can be waived and the marriage become legal and valid by subsequent affirmance and ratification. A voidable marriage can only be inquired into by a direct proceeding between the parties and during the lives of both of them.' Until it is set aside it is practically valid for all purposes; but when set aside the decree renders it void from the be- 3§Fed. 337. See, also, Appelton i;. E. 106; Glass v. Glass, 114 Mass. Warner, 51 Barb. (N. Y.) 270; Teft 563. See, also, similar statutes in «. Teft, 35 Ind. 44. The right of Dyeri;.Brannock,66Mo.391;Lince- the capable party to marry again cum v. Lincecum, 3 Mo. 441 ; Watts without having the void marriage v. Owens, 62 Wis. 512; Harris v. annulled exists, although the stat- Harris, 85 Ky. 4.9, 2 S. W. 549; ute provides how such marriage Hiram v. Pierce, 45 Me. 367. These may be annulled. This provision statutes being remedial may be ap- does not change the rule nor be- plied retrospectively. Brower v. etow aiiy validity upon the void Brower, 1 Abb. Ap. 214; Teter v. marriage. Drummond v. Irish, 53 Teter, 101 Ind. 129; Stone v. Keel- la. 41. ing, 3 Hen. & M. 228. 1 Clayton v. Wardell, 4 Comst. < See statute in Jackson v. Jack- 230. son, 94 Cal. 446; Charles v. Charles, 2 Smith V. Smith, 5 O. St. 32; 41 Minn. 201, 42 N. W. 935; Nesbit Higgins V. Breen, 9 Mo. 493; Smart v. Nesbit, 3 Dem. (N. Y.) 329; Wyles V. Whaley, 6 Sm. & M. 808; Rand- v. Gibbs, 1 Redf. 382. lett V. Rice, 141 Mass. 385. 6 Stuckey v. Mather, 24 Hun, 461. 3 Gall V. Gall, 114 N. Y. 109, 21 N. § 570.] ANNULMENT OF MAEKIAGE. ^35 ginning. Marriages are voidable wMcli are obtained witli imperfect consent, as where there is fraud, error or duress, or the party is incapable of giving consent from want of age, or mental incapacity, or where one of the parties was im- potent before marriage. At the common law the canonical disabilities, consanguinity, affinity and impotence, rendered the marriage voidable and not void. This is, however, modi- fied by statutes declaring certain marriages void for consan- guinity and affinity. Yoidable marriages are, of course, good for every purpose until avoided ; the children are legit- imate ; ' the survivor is entitled to the rights of a husband or wife,^ and the wife is entitled to dower.' During the existence of the voidable marriage neither party can marry again.* § 570. Defenses to nullity snlt. — It is clear that some of the defenses which may be made to a suit for divorce have no application to nullity proceedings. Where a mar- riage is absolutely void by statute, or on account of a prior marriage undissolved, no defense will prevent a decree of nullity unless it be estoppel or unreasonable delay. The doctrines of connivance, collusion, condonation and recrim- ination are based upon violations of marital duties, and can have no application where the marriage relation does not exist. The void marriage imposed no duties and created no obligations except such as arise between strangers. A wife may have her marriage annulled on account of the impotence of the husband though she had committed adultery.* If the marriage is void the defense of recrimination is wholly im- material.' The doctrine of condonation has no application ; but where the marriage is voidable, relief may be refused where cohabitation commenced or continued under circum- 1 Bury's Case, 5 Co. 98. § 603; Duress, § 633; Want of age, ZEUiot V. Gurr, 2 Phillim. 16. § 723; Insanity, § 670. 3 1 Black. Com. 434. ^M. v. D., 10 P. D. 75, 175; A. B. estate V. Cone, 86 Wis. 498, 57 N. v. C. B., 11 Scotch Sess. Cas. (4th W. 50. See contra, In re Eichoff, Ser.) 1060; C. B. v. A. B., 12 Scotch 101 CaL 600. For affirmance of Sess. Cas. (4th Ser.) 36. voidable marriages, see Fraud, * See § 435. 536 ANNULMENT OF MAEEIAGE. [§5Y1. stances from which, ratification may be inferred. The gen- eral doctrine of delay applies to proceedings to annul a marriage for impotence, though it seems that insincerity is not a defense.' Impotence or physical incapacity cannot be condoned, but the circumstances may show an unreasonable delay.^ §571. Practice and procedure. — The suit to annul a marriage is similar to the suit for divorce and requires no separate treatment, as distinctions have been noted in the general treatment of various subjects. The statutes have generally conferred jurisdiction upon the courts to annul marriages in certain cases, and authorized the same plead- ings as in the divorce suit, The domicile of the parties must be adequate for the suit for divorce. The wife is entitled to temporary alimony in any proceeding in which a de facto marriage is alleged to be void.' The wife is not entitled to permanent alimony but to a restoration of property, or a gross sum in lieu of her property rights and her contribu-^ tions to the common fund.* 1 M. V. D., 10 P. D. 75. * Allowance in restitution of 3 See § 454, What offenses may property, §§ 960-966; Recovery of be condoned. Also, Ryder v. Ryder services, rents and profits, etc., on (Vt.), 38 A. 1039. decree of nulUty, § lOSa '§853. PRIOR MARRIAGE UNDISSOLVED. 575. In general. 576. General doctrine of this chapter. 577. When prior marriage is un- dissolved the second mar- riage is void. 578. When second marriage is voidable under statutes. 579. Void although divorce sub- sequently obtained. 580. Presumptions in favor of marriage. 581. Knowledge that disability has been removed. 583. Marriage before decree nisi is made absolute. 583a. Marriage during time for appeal. : 583. Marriage after a decree a mensa. 584 Belief that prior marriage was dissolved by death. 585. Belief that prior marriage was dissolved by divorce. 586. Marriage after void decree of divorce. 587. Decree obtained by fraud. 588. Eemarriage of guilty party. 589. Bigamy as a cause for di- vorce. 590. Effect of void marriage at the common law. 591. Void marriages under the civil law. § 575. In general. — At common law marriage is a union, of the two sexes for life to the exclusion of aU others. A person could not be a party to two valid co-existing mar- riages. While a lapse of time will raise a presumption of the death of the absent party, so long as both parties are living no length of separation can dissolve the union. The party who violated his marital obligations by entering into a void second marriage was guilty of the canonical offense of bigamy. Later, in the time of James I, the offense was made a felony, but the statute exempted from punishment for bigamy all persons who remarried during the life-time of the former spouse, after a decree of divorce, a sentence of nulUty, or disaffirmance on reaching the age of consent, or where one party married after the other had remained away 538 PEIOE MAEEIAGE UNDISSOLVED. [§ 5Y6. for the period of seven years without being heard from.i Bigamy is punishable in nearly all the states by similar stat- utes containing similar exceptions. The common law was very harsh in dealing with innocent parties who had entered into void marriages believing that the prior marriage was ■dissolved. When the second marriage was annulled the in- nocent party was deprived of all property rights and the issue of the second marriage became illegitimate. The first marriage was regarded as of divine origin, and continued no matter how long the parties were separated. And if one of the parties to the first marriage had died in the meantime, the survivor could return and claim the rights of a surviving husband or wife. No estoppel, no' laches, and no neglect of m.arital duties, however flagrant, could bar the right of the delinquent party to assert his or her rights. Much of this injustice is now prevented by declaring legitimate the ohil- ilren of void marriages; and in some states the prior un- dissolved marriage is held in abeyance until the second marriage is declared void in a proceeding to test its y,alidity. It is an absolute necessity, for the protection of the public as well as the innocent parties, that second marriages^ con- tracted under a mistake of law or of fact, should be left un- disturbed after a reasonable lapse of time, especially where the parties to the second marriage have acted in good faith. Otherwise the second marriage is never secure, but is always open to attack whenever the other party is prompted by greed or enmity to assert his rights.^ §576. General doctrine of this chapter. — A marriage exists until it is dissolved by divorce or the death of one of the parties. During the existence of the first marriage neither of the parties can enter into a valid second marriage. If a party to a valid subsisting marriage enters into another marriage the second marriage is absolutely void and has no legal effect whatever. It is not merely voidable, but is an ab- iStat. 1 Jac. 1, ch. 11, 1604; lowed in an action to annul a mar- Queen V. Luniley, L. R. 1 C. C. 196. riage for this cause. § 852. - Temporary alimony may be al- § 577.] PEIOE MAEKIAGE TTADISSOLTED. 539 solute nullity, incapable of ratification.^ A party to a valid and subsisting marriage is absolutely incapable at common law of effecting a valid marriage with a third person, and a second marriage, while the first marriage subsists, is a nullity, void db initio? Such is the general doctrine Avhere there is a prior marriage undissolved. It will be necessary to examine the various applications of this doctrine and its collateral results. § 577. When prior marriage is undissolved the second marriage is void. — When a valid prior marriage is shown to have been in full force at the time the second marriage was entered into, this is sufficient proof that the second marriage is void.^ It was once contended that such second marriage is voidable.* It was urged that a prior undissolved marriage did' not render the second marriage ipso facto void, but voidable only ; furnishing ground for a dissolution of the marriage, but not per se annulling it. But it was held that a valid prior marriage, when established, rendered void the second one. " A man having a wife in full life is utterly powerless to make a valid contract of marriage, and his attempt to do so is entirely nugatory." ' By the general concurrence of the authorities, the second marriage is not voidable, but absolutely void, without a decree declaring it 1 Williamson v. Parisien, 1 Johns. ^ Lady Madison's Case, 1 Hale, P. Ch. 389; MUes v. Chilton, 1 Eob. Ec. C. 693; Wightman v. Wightman, 4 '684; Bird v. Bird, 1 Lee, 621 ;■ Searle Johns. Ch. 343: Hemming v. Price, V. Price, 3 Hag. Con. 187; Young 12 Mod. 482; Eex v. P^nson, 5 Car. V. Nay lor, 1 Hill, Eq. 383; Smith v. & P. 412; Regina v. Brown, 1 Car. Smith, 1 Tex. 621; Cartwright v. &K. 144; Riddleson v. Wogan, Cro. McGowan, 121 IlL 388; Kenley v. Eliz. 858; Smart v. Whaley, 6 Kenley, 2 Yeates, 207; Heffner v. Smedes &M. 308; Martin's Heirs u Heffner, 23 Pa. 104; Teft v. Teft, 35 Martin, 22 Ala. 86; Rawdon v. Eaw- Ind. 44; Donnelly v. Donnelly's don, 28 Ala. 565; Gathings v. Will- Heirs, 8 B. Mon. 113; Spicer v. iams, 5 Ired. Law, 487; In re ■Spicer, 16 Abb. Pr. (N. S.) 112; S. v. Shaak's Estate, 4 Brewster, 305; Cfoodrich, 14. W. Va. 834; Lindsay Patterson v. Gaines, 6 How. 550; ■V. Lindsay, 42 N. J. Eq. 150; Glass Drummond v. Irish, 52 la. 41. V. Glass, 114 Mass. 563; Smith v. ' See. .sitpj-a, § 576. -Smith, 5 O. St. 32: Armory v. Ar- < Heffner v. Heffner, 23 Pa. 104. mory, 6 Rob. (N. Y.) 514. ' » Id. 540 PKIOE MAKEIAGE UNDISSOLVED. [§ 57S. SO.' Therefore, the competent party to the second marriage may marry again without first obtaining a decree annulling^ the supposed marriage.^ § 578. When a second marriage is voidable under stat- utes. — By statute in some states the void second marriage- is valid until annulled by decree. Such statutes produce the anomalous result of two legal marriages of one person existing at the same time. In one case the first wife de- serted the husband, settled in California and married there. The husband married again and died. In a settlement of his estate it was held the second wife was entitled to- dower, as her marriage was valid until annulled by a court of competent jurisdiction, and is to be deemed valid until such decree is entered.' Under such statute the validity of the marriage cannot be tried in any collateral proceeding, but only in a direct proceeding to annul the marriage. A similar provision of the ISTew York code declares that: "If any person whose husband or wife shall have absented him- self or herself for the space of five successive years, without being known to such person' to be living during that time,, shall marry during the life-time of such absent husband or wife, the marriage shall be void only from the time that its- nuUity shall be pronounced by a court of competent author- ity." The interpretation placed upon this statute is that the first marriage is suspended or placed in abeyance, and is not reinstated upon the return of the absentee ; otherwise both marriages would be in force at the same time, and polygamy would be sanctioned. The first marriage is merely inchoate and without any effect until one of the three par- ties obtains a decree pronouncing the second marriage void.^ For purposes of succession and administration the second 1 Strode v. Strode, 3 Bush, 237; 173; Reeves v. Reeves, 54 111. 333? Teft V. Teft, 35 Ind. .44; Peet v. Williams v. WilUams, 63 Wis. 58? Peet, 53 Mich. 464, and authorities Dare v. Dare (N. J. Eq.), 27 A. 654. cited in this chapter. s Charles v. Charles, 41 Minn. 201^ ^ Patterson v. Gaines, 6 How. 550; 42 N. W. 935. Gaines v. Relf, 12 How. (U. S.) 472- * Gall v. Gall, 114 N. Y. 109; Grif- 593; Queen v. Chad wick, 11 Q. B. fin v. Banks, 34 How. 213. § 5Y9.] PEIOK MARRIAGE UNDISSOLVKD; 541 marriage is valid until its invalidity is established.' The statute is thus construed to promote the best interests of the state ; and the marriage may be held void if the moving party has not acted in good faith, but married without in- quiry in regard to the absentee, or without an honest belief that the other party was dead.'^ The statute proceeds upon a presumption of death, and a party is not protected in mar- rying without due inquiry for the absentee.^ The provision of the California code is similar to that of New York. It provides that : (1) " A subsequent marriage contracted by any person during the life of a former hus- band or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning; (2) unless such former husband or wife was ab- sent, and not known to such person to be living, for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed and was be- lieved by such person to be dead at the time such subse- quent, marriage was contracted; in either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal." It is held that the second mar- riage is not void, but voidable, if the husband had written several letters to the absent wife and to his friends, making inquiries about her, and he was informed and believed that she was dead.* ■ § 579. Void although divorce subsequently obtained.— A decree of divorce does not relate back to any particular time, but becomes operative only when rendered.'* If for some reason the decree is not operative, although the couri had in fact made some minutes directing a decree, the mar- riage is void and does not become valid by a subsequent de- 1 White V. Lowe, 1 Redf. 376; McCartee v. Camel, 1 Barb. Ch. 455, Spicer v. Spicer, 16 Abb. Pr. (N. S.) 464. 113; Wyles v. Gibbs, 1 Redf. 383. a Valleau v. Valleau, 6 Paige, 207, ^ Id. ; Jones v. Zoller, 32 Hun, 380; * Jackson v. Jackson, 94 Cal. 446. Cropsey v. McKinney, 30 Barb. 47; * Alt v. Banholzer, 39 Minn. 511. 5J:2 PEIOE MAEKIAGE UNDISSOLVED. [§ 580.. cree.^ A marriage where the decree of divorce was entered two hours after the marriage ceremony was performed was, however, held valid.'^ Generally the party who enters into- a subsequent- marriage, knowing that the other spouse is living and undivorced, is unable to procure a dissolution of the first marriage on account of the adultery committed in the meretricious marriage.' If he- desires to maintain the second marriage he must wait until his real wife by the first marriage obtains a divorce from him and then have a new- ceremony performed with his second wife. The mere fact that, after the void second marriage is entered into, the first marriage is dissolved will not render the second marriage valid.* § 580. Presumptions in favor of marriage. — While the parties to the void second marriage are liviiig together their relation is meretricious and illicit, and the question arises,. Can this marriage become valid by cohabitation after the first marriage is dissolved by divorce or by the death of the other party ? It is clear that as the second marriage is void it cannot be ratified.' But if the parties discover that the first marriage was dissolved and continue to, cohabit as hus- band and wife for years, the presumption would arise that ar valid marriage took place after the first marriage was dis-' solved. This presumption is very strong where the parties entered into the marriage in good faith, believing Ihat the 1 S. V. Eaton, 85 Wis. 587, 55 N. W. s See "Whippen v. "Whippen, 147 8910; In re Cook's Estate, 83 Cal. Mass. 294. 415,33 P. 393; Teter v. Tatar, 88 -tin re McLaughlins, 4 Wash. Ind. 494. , 570, 30 P. 651; Harris v. Harris, 85 2Merriam v. Wolcott, 61 How. Ky. 49, 3 S. W. 549; Williams v. Pr. 377, 393. In this case the par- Williams, 63 Wis. 58; Teter v. ties acted in good faith believing Teter, 88 Ind. 494 and 101 Ind. 139; that a divorce had been granted. Hunt's Appeal, 86 Pa. 394. The law would presume the de- 5 Tyler on Infancy & Gov. 833; cree to date from the opening of " Holabird v. Atlanta, etc. Ins. Co., court on that day, and would dis- 13 Am. L. Reg. 566; Thompson v. regard fractipns of a day, except Thompson, 114 Mass. 566. in cases of necessity to guard against injustice. § 580.] PEIOE MAUEIAGE UNDISSOLVED. 643 first marriage was dissolved, and after discovering the mis- take continued to cohabit as husband and wife, acknowledg- ing their child as legitimate, and by every act and declaration showing their belief that they were legally married after the first marriage was dissolved. To overcome this pre- sumption of a valid marriage after the first is dissolved, it would be necessary to prove a negative, — to prove that at no time after the dissolution of the first marriage had the parties entered into a valid marriage. This would be most difficult to prove, especially where a common-law marriage is held sufficient. But this difficulty of proof is not unusual in such cases, since it is the rule that all presurrvptions shall ie made in favor of marriage where matrimony was the dt'- sire of the parties. In conformity with all the presumptions in favor of marriage, the true doctrine is believed to be that a valid marriage will be presumed if the parties continue ta cohabit as husband and wife after the disability is removed. Where a common-law marriage is valid, a marriage will be presumed if the parties to the void marriage live together, as husband and wife, but a short time after death or divorce has dissolved the first marriage, and it will be necessary for the impeaching party to show that the parties, after re- moval of the disability, had no desire to continue the mar- ital relation and did not subsequently agree to be married.'' Under such circumstances a marriage will be presumed, al- though a formal mai*iage is required, and a marriage good at common law is not sufficient. The presumption exists whatever the form of marriage required. In such case the iTeter v. Teter, 101 Ind. 129; Atty. Gen., 1 Ap. Cas. 686; Harvey TeteruTeter,88IncL494;Boulden v. Carrol, 5 Tex. Civ. Ap. 324,33 V, Mclntire, 119 Ind. 574, 21 N. E. S. W. 713; Blanchard v. Lambert, 445; Cartwright v. McGown, 131 43 la. 328; Harbeck t;. Harbeck, 103 IlL 388; Adams v. Adams, 57 Miss. N. Y. 714; Campbell v. Campbell, 267; State v. Worthingham, 23 1 H. L. So. 182-215; Lapsley v. Minn. 528; Schmisseur v. Beatrie, Grierson, 1 H. L. Cas. 498; De 147 111. 210, 35 N. E. 525; Fenton v. Thoren v. Wall, 3 Scotch Sess. Cas. Reed, 4 Johnson, 52; Rose v. Clark, (4th Ser.) H. L. 38. 8 Paige, Ch. 574; De Thoren v. SM PEIOE MAKEIAGE UNDISSOLVED. [§ 580. presumption will be that the marriage was in conformity to the law. But this is denied in some of the states where common-law marriages are not valid ; the presumption being that an illicit cohabitation continued unless a ceremony was shown.i There may also be a presumption of divorce where the parties, or one of them, has, after a separation, married again.^ Where the validity of a second marriage is ques- tioned, and the impeaching party proves a prior marriage, it will be presumed that such marriage has been dissolved by divorce and the second marriage is therefore valid.' The burden of proof is on the impeaching party to show that the absent spouse was living when the second marriage was en- tered into, or that the divorce was not rendered before such second marriage, and also that the parties did not marry after removal of the disability.* This presumption of divorce may be overcome by proof that no divorce could be obtained in the state where the parties resided,^ or by proof that no divorce was granted in the county whesre both parties re- 1 Harris v. Harris, 85 Ky. 49, 2 S. pretended marriage of complain- W. 549; In re McLaughlin, 4 Wash, ant -with the defendant, the com- 570, SOP. 651; Boulden u Molntire, plainant was a married woman 119 Ind. 574, 31 N. E. 445; Randlett And was then and there the wife V. Rice, 141 Mass. 385; Spencer v. of , who was then and Pollock, 83 Wis. 215. there alive." The only evidence 2 Blanchard v. Lambert, 43 la. that the husband was alive at that 228; Ellis v. EUis, 58 la. 720; Car- time was the testimony of the wife roll V. Carroll, 20 Tex. 731. that six years before her second 'Johnson u Johnson, 114 IlL 611; marriage she heard that her hus- Coal Run Co. v. Jones, 127 111. 374; band had married again. Held, Com. V. Belgard, 5 Gray, 95. Where that the dissolution of the first the records had been destroyed by marriage by death or divorce fire and the parties, married others, would be presumed under the cir- it will be presumed that a valid di- cumstances. Johnson v. Johnson, vorce was granted, and the decree 114 111. 611. was entered of record. In re Ed- * Boulden v. Molntire, 119 Ind. wards, 58 la. 431. In an action for 574, 21 N. E. 445. divorce the husband alleged as a ' McCarty v. McCarty, 2 Strob. 6, defense " that at the time of the 47 Am, D. 585, § 581.J PEIOK MARRIAGE UNDISSOLVED. 5i5 sided,^ or by the admission of the sarvivor that neither party obtained a divorce or believed that a divorce had been obtained.^ § 581. Knowledge that disability has been removed. — If the parties knowingly enter into an illicit cohabitation and continue it without knowledge that the disability has been removed, it is clear that there is no presumption of marriage after the parties become competent. Or if the parties suppose the marriage is valid and continue what they believe to be a lawful union, and are never aware that their marriage is void, it is folly to presume a new niarriage. Their condition is most unfortunate. To treat their mar- riage as void, to deprive them of the right of dower or cur- tesy, and to declare innocent children to be bastards, is cer- tainly demanding a great and useless sacrifice to modern idolatry of the marriage relation. But their pitiable condi- tion is the result of legal doctrines so firmly established that the only means of escape is by some statutory enactment incorporating into our law the rule of the civil law that a putative marriage is converted into a real one by the re- moval of the disability by death or divorce. If one of the parties is ignorant of any impediment to the marriage and dies believing the marriage is legal, no sub- sequent marriage could be presumed, because the parties are acting under a belief that their marriage was valid, and all their conduct would be interpreted with reference to the second marriage.' This is well illustrated by an Illinois case where a man, whose wife was living, married another woman during the existence of the first marriage. Three years afterward, without his knowledge, the first wife ob- tained a divorce, but it does not appear that the second wife had any knowledge of this proceeding. The parties to the second marriage during their life-time treated their marriage as valid and evidently believed it to be so. Four children 1 Barnes v. Barnes (la.), 57 N. W. SRandlett v. Eice, 141 Mass. 385. «51. 2EUisttEllis, 58Ia. 730, 35 546 PEIOE MAEEIAGE UNDISSOLVED. [§ 582", were born to them and were recognized as legitimate. After the death of both parties the validity of the marriage was questioned in an action for the partition of the husband's lands, brought by his brothers and sisters against the heirs, of a child of the second marriage. On these facts the' ques- tion arose whether a new marriage would be presumed from' long cohabitation and repute. Speaking of the wife, who was ignorant of a prior marriage, it was said : " She was de- ceived and imposed upon by Lewis, in his falsely assuming to have capacity to marry her, and in concealing the fact of his prior marriage to a then living and undivorced wife, Not knowing of the former marriage she could have had no- reason for desiring a second marriage. If she regarded her- self as the lawful wife of Lewis, it would be a violent pre- sumption to hold that she had assented to a second informal marriage." ^ As every reasonable and fair presumption will be indulged in to uphold a marriage and establish the legiti- macy of children, it will be presumed that the wife had knowledge of the divorce, and that, aftet such fact was known, the parties consented to marry each other and thus formed a common-law marriage. In the last cases cited the presumption is rebutted by satisfactory evidence.^ § 583. Marriage before decree nisi is made absolute. — Although a decree nisi has been entered, the marriage exists until such decree is made absolute. A second martiage dur- ing the existence of the decree nisi, and before it is made absolute, is void.' ■ If a party marries again, supposing he was at liberty to do so under such decreCj he has made a mistake of law and not of fact, and the court wiU refuse to iCartwright v. McGowan, 131 Cook u. Cook, 144 Mass. 163, 10 N. B. 111. 388. Followed by Voorhees v. 749; Googins v. Googins, 153 Mass. Voorhees, 46 N. J. Eq. 411. 533, 35 N. E. 833; Graves v. Graves, 2 But see cases cited in § 580, 108 Mass. 314; Edgerly «. Edgerly, holding that the party impeaching 113 Mass. 53; Sparhawk v. Spar- the marriage must negative the hawk, 114 Mass. 355: Warter v. presumption of a valid marriage Warter, 15 P. D. 153; Wickham v~ after removal of the disability. Wickham, 6 P. D. 11, !< Moors V. Moors, 131 Mass. 333; § 5S2a.] PBIOE MAEEIAGE UNDISSOLVED. 547 make the decree absolute.^ But if he waits the time required by law, believing and havidg reason to believe that he has obtained a decree absolute, and, being guilty of no negli- gence, marries again and cohabits with the person he mar- ries, he is not prevented from having the decree made abso- lute.^ The marriage under the decree nisi being void a new ceremony would be necessary, iinless the decree absolute dated from the entry of decree nisi.' § 582a. Marriage (luring time for appeal. — It is pro- vided in many states that the divorced parties may not marry until after the expiration of the time for appeal, or until six months after the decree of divorce is entered. If such pro- vision is penal, a marriage within the prohibited time will be valid, but the parties will be subject to a prosecution for the offense. Such marriage will, not be void unless the stat- ute expressly declares it to be so.* If it is penal it has no extraterritorial effect, and the parties may avoid the statute by a marriage in another state. It is held in England that, such statute makes the decree inoperative unto, the six months have expired, and that the decree is in effect a decree nisi, and a marriage within the prohibited time is void. Accordingly, it is held that a marriage in England is void if at the time the decree in India had not become operative.* The statutes of our states are similar in form and effect to statutes prohibiting the remarriage of the guilty party, and win receive the same construction.^ 1 Moots V. Moors, 131 Mass. 332. or claim of either party shall have 2 Pratt V. Pratt, 157 Mass. 403, 33 the effect to terminate such mar- N. E. 747. riage as to both parties, except 'Prole V. Soady, 3 Ch. Ap. 330; that neither party shall be capable Norman v. Villars, 3 Ex. Div. 359; of contracting marriage with a Noble V. Noble, 1 P. D. 691; "Wales third person; and if he or she does V. Wales, 119 Mass. 89. so contract, shall be liable there- * See § 588. for as if such decree had not been ' Warter v. Warter, 15 P. D. 153. given, until the stiit has been heard *See § 588 on this point. and determined on appeal; and if The code of Oregon provides no appeal be taken, the expiration that "a decree declaring a mar- of the period allowed by this code riage void or dissolved at the suit to take such appeal." The wife, a 648 PEIOE MARRIAGE UNDISSOLVED. [§ 583. § 583. Marriage after a decree a mensa. — A decree a mensa does not destroy the marriage relation or dissolve it, but merely suspends some of the marital obligations.^ A second marriage after such a decree is clearly void.^ "When the second marriage is discovered to be void for this reason, either party to such marriage can have it annulled. But if the parties desire to have their illicit relation converted to the states of a valid marriage, they must have the first mar- riage dissolved and have a new ceremony performed after resident of Oregon, 'married in that state before the decree became operative under this statute. In a suit for alimony against her second husband, it was held that such marriage was void, although the statute did not declare it to be so. Wilhite V. Wilhite, 41 Kan. 154 The code of Washington declares that " neither party shall be capa- ble of contracting marriage with a third person until the period in which an appeal may be taken under the provisions of the civil practice act has expired; and, in case an appeal is taken, then neither party shall intermarry with a third person until the cause has been fully determined." The plaintiff obtained a divorce and married in Washington within six months. The parties cohabited as husband and wife until the death of one of the husbands. No appeal was taken, and no marriage was solemnized after the time for ap- peal had expired. On a petition of the first wife for letters of admin- istration, the second marriage was held void under the statute cited. In re Smith's Estate, 4 Wash. 702, 30 P. 1059. A marriage to the defendant within four months after the ren- dition of a decree is void, where the statute declares that a decree of divorce " shall not operate so as to release the offending party, who shall, nevertheless, remain subject to the pains and penalties which the law prescribes against a mar- riage whilst a former husband or vrife is living." Cox v. Combs, 8 B. Mon. 231. Marriage after ex parte di- vorce. — In Comstock v. Adams, 23 Kan. 513, the parties were mariaed six days after a decree of divorce was obtained on service by publi- cation. The parties to the divorce suit entered into a contract, in which the defendant agreed, in con- sideration of a certain sum, to take no steps or proceedings, or to in- stitute any proceedings to inval- idate, set aside or annul the divorce granted. On a failure to pay the consideration, the defendant had the decree vacated. After the death of the husband, the first wife brought an action to set aside his will, and it was held that the second marriage was void. 1 Barker v. Barker, 2 Pin. 297. 2 Young V. JSTaylor, 1 Hill, Eq. (S. C.) 383; Carmena v. Blaney, 16 La. §§ 584, 585.] PEIOE MAEEIAGE UNDISSOLVED. 549 the divorce is obtained. The divorce cannot be obtained by the incapable party, for by entering into a void marriage he or she has committed adultery, unless such marriage was entered into by mistake of fact. This adultery can be set up as recrimination and defeat the suit for divorce unless the recrimination is only a bar at discretion of the court. In such case the court will not refuse a divorce where the adultery of the plaintiff in entering the void marriage is only technical and was committed under a mistake of law or iact. The party to the first marriage who has not entered into a void marriage may obtain a divorce on account of adultery or bigamy. § 584. Belief that prior marriage was dissolved by death. — Since a marriage exists until dissolved by death or divorce, it continues as long as the absentee lives, no matter how long he may remain away. A second marriage is there- fore absolutely void, and cannot be aifirmed if the absentee is still living.' The belief of both parties, or of one of them, that the prior marriage was dissolved by the death of the absentee, or because he has been absent for more than seven years, may be a defense in a criminal proceeding for bigamy, but does not render the second marriage valid.* But in many of the states the statutes provide that the issue of the second marriage shall be legitimate if the second marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead.' §585. Belief that prior marriage was dissolved hy di- vorce. — The belief that a prior marriage was dissolved by divorce may be a mistake of fact or of law according to the An. 245; Thompson v. Thompson, *Paini v. Pain, 37 Mo. Ap. 110; 10 Philadelphia, 131. Thomas v. Thomas, 124 Pa. 646, 17 3 James v. James, 5 Blackford A. 182; Glass v. Glass, 114 Mass. (Ind.), 141; Kenley v. Kenley, 2 563; Valleau v. Valleau, 6 Paige, Yeates (Pa.), 207; Martin v. Martin, 207; Oram v. Oram, 3 Eedf. 300. 22 Ala. 86; Zule v. Zule, 1 N. J. Eq. 5 Gall v. Gall, 114 N. Y. 109, 21 96; Williamsons. Parisian,! Johns. N. E. 106; Glass w Glass, 114 Mass. Ch. 888; Glass v. Glass, 114 Mass. 563. 563. 550 PEIOK MAEEIAGE UNDISSOLVED. [§ 586. circumstances. If it is a mistake as to the effect of a decree nisi or a mensa it is clearly a mistake of law.^ Eut if the mistake is in regard to the entry or existence of a decree -it is a mistake of fact.^ The belief that one of the parties is divorced may be a material fact vs^here the statute provides that children of parties married in good faith shall be legiti- • mate.' But otherwise such behef is immaterial, as such mar- riage, like the marriage under the belief that a former hus- band and wife is dead, noticed in the previous section, is void and not voidable.* Such a marriage is void although the statute declare the children legitimate "when either party to a marriage, void because a former marriage exists undissolved, shall have contracted such void marriage in the reasonable belief that such disability did not exist." Such provision relates to the legitimacy of the children and not to the validity of the marriage.' "Where the second marriage has been contracted under such belief, the marriage is void, and a decree annulling the marriage is not necessary, and the competent party may enter into a valid marriage without such decree.^ But the wisest course is to have such marriage annulled during the lifetime of the parties.'' § 586. Marriage after void decree of divorce. — Accord- ing to familiar principles of law, a judgment or decree of a court without jurisdiction is a mere nullity. A decree of divorce, void for want of jurisdiction, is without any legal effect and does not dissolve the marriage. A decree is void for want of jurisdiction if the plaintiff did not have a lona fide domicile within the state.* The invalidity of such de- 1 Moors V. Moors, 131 Mass. 233^ 5 Teter v. Teter, 88 Ind. 494 White V. WMte, 105 Mass. 335; 6 Reeves v. Reeves, 54 111. 333; Glass, V. Glass, 114 Mass. 563. Martin v. Martin, 33 Ala. 86 ; Gaines 2 Pratt V. Pratt, 157 Mass. 503. v. Eelf , 13 How. (U. S.) 473 ; Williams 8 See § 584 v. WiUiams, 68 Wis. 58; Lincoln v. 4 Brown v. Brown, 143 TO.. 409; Lincoln, 6 Eob. 535. - Gordon v. Gordon, 141 111. 160; 'Appleton v. Warner, 51 Barb. Cartwright v. McGowan, 131 IlL (N. Y.) 370; Teft v. Teft, 35 Ind. 44 388. 8 Ditcher v. Dutcher, 39 Wis. § 586.] FEIOE MAEEIAGE UNDISSOLVED. 551 ■cree may be shown in a proceeding in any state and between any parties wherever the issue may arise.^ As, where the applicant removed from his own state to Utah, and . pro- cured a divorce under a statute authorizing the courts of the territory to take jurisdiction of divorce cases " where the applicant wished to become a resident." Such decrees are uniformly held to be void and do not dissolve the marriage. Subsequent marriages are void and bigamous.^ According to the peculiar doctrine of jurisdiction and domicile which prevails in New York, a valid divorce may be obtained by substituted service upon a non-resident if his domicile is in fact within the state.' But it is denied that the marital re- lation is a res within the state of the party invoking the 651; Jackson v. Jackson, 1 Johns. 434; Yates v. Yates, 2 Beasley, 280; House v. House, 35 Ga. 473; I^ith u Leith, 39 N. H. 20; Strait V. Strait, 3 MacAr. 415; Gregory V. Gregory, 78 Me. 187; Ditson V. Ditson, 4 E. I. 87; Pawling v. WiUson, 13 Johns. 193; Barber v. Eoot, 10 Mass. 260; Nefle v. Beau- champ, 74 la. 93, 36 N. W. 905 Bradshaw v. Heath, 13 "Wend. 407 Watkins v. Watkins, 135 Mass. 83 Sewall V. SewaU, 123 Mass. 156 Van Fossen v. S.,37 O. St. 317; Get- tysu Gettys, 3 Lea, 260; Shannon V. Shannon, 4 Allen, 134; Shaw v. Gould, L. E. 3 H. L. 55; Shaw v. Atty.-Gen,, 2 P. & M. 156; Kerr V. Kerr, 41 N. Y. 272; White v. White, 5 N. H. 476; Harrison v. Harrison, 20 Ala. 629; Hare v. Hare, 10 Tex. 355; Vischer v. Vischer, 12 Barb. 640; Coddington v. Coddiag- ton, 30 N. J. Eq. 263; Weatherbee V. Weatherbee, 20 Wis. 499. 1 See cases in last note. People V. DaweU, 25 Mich. 247; Smith V. Smith, 13 Gray, 209; Sew- aU V. SewaU, 133 Mass. 156; Hoff- man V. Hoffman, 46 N. Y. 30; Piatt's Appeal, 80 Pa. 501; Cava- naugh V. Smith, 84 Ind. 380; Doughty V. Doughty, 28 N. J. Eq. 581; Adams v. Adams, 154 Mass. 390, 38 N. E. 260; Larimore v. Kioyle, 43 Kan. 338, 23 P. 487; St. Sure V. Lindsf elt, 83 Wis. 346, 52 N. W. 308; Smith v. Smith, 43 La. An. 1140, 10 So. 248; Van Orsdal V. Van Orsdal, 67 la. 35, 24 N. W. 579; Eegina v. Wright, 1 P. & B. (New Brunswick), 363 ; Neff v. Beau- champ, 74 la. 93, 36 N. W. 905; Gettys V. Gettys, 71 Tenn. 260; Mvmspn v. Munson, 14 N. Y. Supp. 692; Chaney v, Bryan, 83 Tenn. 589. But see Eeed v. Eeed, 53 Mich. 117; Waldo V. Waldo, 52 Mich. 94. ^Litowich V. Litowich, 19 Kan. 451, 27 Am. E. 145; Hood v. S., 56 Ind. 263; S. v. Armington, 35 Minn. 39; Folger v. Columbia Ins. Co., 99 Mass. 367; Smith v. Smith, 19 Neb. 706, 28 N. W. 296; Cost v. Cost, 1 Utah, 112; S. v. Fleak, 54 la. 439; Davis V. Com., 13 Bush, 318 ; Hardy V. Smith, 136 Mass. 328. 3 Hunt V. Hunt, 72 N. Y. 217. 552 PEIOE MAEEIAGE UNDISSOLVED. [§ 586, jurisdiction of the court to dissolve it. A decree of divorce obtained in another state by substituted service, although valid in all other states, is held void in New York as against a citizen of that state who was not personally served with summons and did not appear in the proceedings. The status of such citizen is not affected by the decree, he or she re- maining a married person.^ Thus,, where the wife obtained a decree of divorce in Ohio against her husband, who was a citizen of New York, it was held that such decree did not affect the status of the husband. He committed bigamy by entering into a second marriage.^ A second marriage per- formed in New York, after such decree of divorce, is void.* And, since the validity of a marriage is to be determined by the law of the state where it was entered into, such mar- riage is void everywhere.* It has been admitted, however, that a decree of divorce was valid where the parties married and resided in Ohio, and the husband obtained a divorce on account of the wife's adultery committed in that state, al- though the wife had, after their separation, removed to New York, and notice was served by publication.' A marriage of one of the parties supposed to be divorced by a decree which is void for want of jurisdiction, or for fraud ill obtaining or proving jurisdiction, is absolutely void'. No subsequent conduct of the parties can render such void decree valid. The innocent party, who had no notice of the lEigney v. Eigney, 137 N. Y.408, Supp. 191; In re Hoiise Estate, 14 reversing 6 N. Y. Supp. 141; Will- N. Y. Supp. 275; Scragg v. Scragg, lams V. Williams, 130 N. Y. 193, 39 18 N. Y. Supp. 487. See, also. Cook N. E. 98; People v. Baker, 76 N. Y. v. Cook, 56 Wis. 195, 14 N. W. 83; 78; O'Dea v. O'Dea, 101 N. Y. 23, 4 Doughty v. Doughty, 28 N. J. Eq. N. E. 110; Jones v. Jones, 108 N. Y. 581; Flower v. Flower, 43 N. J. Eq. 415, 15 N. E. 707; Cross v. Cross, 153, 7 A. 669; Simonds v. Allen, 33; 108 N. Y. 638, 15 N. E. 333; De Meli ID. Ap. 513. V. De Meli, 120 N. Y. 485, 34 JST. E. 2 People v. Baker, 76 N. Y. 78. 996; Bundle v. Van Inwegan, 9 ' O'Dea v. O'Dea, 101 N. Y. 23. Civ. Pro. 338; Morrison, In re, 53 * Simonds v. Allen, 33 III Ap, Hun, 102; Feyh Estate, 5 N. Y. 512. Supp. 90; Burton v. Burton, 45 ^ Matter of Morrison, 52 Hun, lOSU Hun, 68; Davis v. Davis, 33 N. Y. § 586;] PBIOK MAEEIAGE UNDISSOLVED. 553' divorce proceedings, is not estopped to assert its in\-alidity because she has herself relied upon the decree and married another.^ The fact that a mother is willing to have the child of the second marriage declared a bastard in order to recover dower, while extremely reprehensible, cannot be considered, as in any way rendering the void decree operative. ISTor can the party who practiced the fraud upon the court by making a false showing of jurisdiction prevent the vacation of the decree by entering into a second marriage before such void decree is vacated.^ The doctrines of delay and es- toppel may prevent either party from asserting property rights under such circumstances.' A void decree will be set aside although an innocent party relied upon it and married one of the divorced parties and children were born of such marriage.* "When this question was first decided it was ad- mitted that " it may seem an arbitrary act to expunge a. sentence of divorce with a stroke of a 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. But the legitimate husband has also his rights ; and, if any one must suffer from the invalid marriage, it is he who procured it." ^ The status of the second wife is no more deplorable than that of any innocent woman who marries a man having a wife living 1 Rundle v. Van Inwegan, 9 Civil 24 Neb. 551, 39 N. W. 594; Brotbei- Pro. 328. ton v. Brotherton, 12 Neb. 72;. 2 Brotherton v. Brotherton, 13 Wortman v. Wortman, 17 Ab. Pr, Neb. 72. See, also, § 1053. (N. Y.) 66; Comstock v. Adams, 33^ 3 See Estoppel, § 556. Kan. 513; Push v. Rush, 46 la. 648, < Allen V. McClellan, 13 Pa. St. 48 la. 701; Lawrence u Lawrence, 338 (1849); Everett u Everett, 60 73 111. 557; Stephens u Stephens, 63 Wis. 300; Edson v. Edson, 108 Mass. Tex. 337; Whitcomb v. Whitcorab, 590; Smith v. Smith, 20 Mo. 166; 46 la. 437; Boyd's Appeal, 38 Pa, Caswell V. Caswell, 120 111. 377, 11 341; Crouch v. Crouch, 30 Wis. 667; N. E. 343; Scanlon v. Scanlon, 41 Weatherbee u Weatherbee, 30 Wis, IlL Ap. 449; Holmes v. Holmes, 63 499. Me. 430; True v. True, 6 Minn. 315; 'Allen v. McClellan, 13 Pa. St, Bomsta v. Johnson, 38 Minn. 230, 338. 86 N. W. 341 ; Wisdom v. Wisdom, S54 PEIOE MAEEIAGE UNDISSOLVED. [§ 587. and undivorced. It is to be regretted that the disgrace and trouble cannot be visited upon the head of the wrong-doer a,lone, but it often happens innocent parties must suffer with the guilty. Considerations of public policy as well as jus- tice demand that fraud practiced upon a court shall not be successful. It is of the highest unportance that all should landerstand that a decree obtained by fraud will be set aside when the facts are proven. Were it otherwise, a reckless man, by imposing upon the court, might relieve himself of supporting his wife, cut off her right of dower, obtain cus- tody of the children and " stamp her name with unmerited disgrace," and preclude her from aU relief by committing the additional wrong of marrying another. § 587. Decree obtained by fraud. — A distinction should be made between a decree void for want of jurisdiction and a decree obtained by false evidence as to the cause for di- vorce. If a decree of divorce is void for want of jurisdiction, no estoppel or long acquiescence will prevent ,a party from having it set aside. The fact that the moving party has re- lied on the divorce as a dissolution of the marriage and has married again will not estop her from showing that such decree is void for want of jurisdiction.^ A fraudulent show- ing of jurisdiction will render the decree absolutely void, but a fraud practiced upon the court in giving false evidence, or in misleading the defep.dant as to the cause for divorce, or suppressing the evidence, or procuring a decree by collu- sion, wiU render the decree voidable only. This distinction is carefully noted in the opinions.^ Thus, where the court had jurisdiction of the parties, and the fraud was practiced in procuring the decree, it wiU not be set aside if the mov- ing party has been guilty of acquiescence or unreasonable delay after the discovery of the fraud.' The statute of lim- lEundle v. Van Inwegan, 9 Civil ^Sedlak v. Sedlak, 14 Or. 540, 13 fro. E. 338. See, also, § 1053. P. 453; Nichpls v. Nichols, 35 N. J. 2 Everett v. Everett, 60 Wis. 300; Eq. 60; Richardson's Ap., 133 Pa. Edson V. Edson,108 Mass. 590; Cas- 293, 19 A. 83; Singer v. Singer, 41 well V. Caswell, 130 III 377. Barb. 139; Miltmore v. Miltmore, § 588.] PEIOE MAEEIAGE UNDISSOLVED. 555 itations is applicable to such cases, but does not begin to run until the discovery of the fraud.^ Especially is this true when an innocent party has married one of the divorced parties relying upon such decree.^ Under such circumstances the courts may rightly refuse to disturb the rights of "inno- cent parties by declaring the marriage void and thus bas- tardizing innocent children, vrhere the motive of the moving party is to gratify personal feeling and recover alimony.' Nor should the divorce be set aside on the ground of public morals if the moving party is actuated solely by mercenary motives.* § 588. Remarriage of guilty party. — The marriage is completely dissolved by a decree of divorce, and all the ob- ligations created by that relation are discharged, and the parties stand as though no such relation had existed. The marriage relation is as completely dissolved by divorce as by death. Therefore qn the entry of a decree of divorce both parties are entitled to marry again, unless the statutes expressly prohibit the guilty party from marrying again.' The JSTew York code ' provides that " "Where a marriage is dissolved, as prescribed in this article, the plaintiff may marry again, during the life-time of the defendant ; but a defend- ant, adjudged to be guilty of adultery, shall not marry again until the death of the plaintiff." But this section does not prevent the remarriage of the parties to the action.'' If the guilty party marries again in the state during the 40 Pa, 151; Garner u Garner, 38 Larimore v. Knoyle, 43 Kan. 338, Ind. 139: Stephens v. Stephens, 51 33 P. 487. Ind. 543; Bourn v. Simpson, 9 B. 2 ginger v. Singer, 41 Barb. 139; Mon. 454; Jordon v. Van Epps, 58 Nichols v. Nichols, 35 N. J. Eq. 60; How. Pr. 388; Nicholson v. Nichol- Earle v. Earle, 91 Ind. 37; Yorston son, 113 Ind. 131, 15 N. E. 333 ; Brown v. Yorston, 33 N. J. Eq. 495. V. Grove, 116 Ind. 84, 18 N. E. 387; 'Id. Jones V. Jones, 78 Wis. 446, 47 N. < Hubbard v. Hubbard, 19 Colo. "W. 738; Thompson v. Thompson, 13, 34 P. 170. 91 Ala. 591; Zoellner v. Zoellner, 6 Barber u Barber, 16 CaL 378. 46 Mich. 511 ; Danf orth v. Danforth, 6 § 1761. 105 ILL 603. '' See construction of this section » Caswell V. Caswell, 130 IlL 377; in Peck v. Peck, 8 Abb. N. C. 400; 556 PEIOE MAEEIAGE UNDISSOLVED. [§ 588. life of the complainant lie is guilty of bigamy.^ Generally the remarriage is prohibited within a specified period ; as,, five years.2 In some states until the further order of the court.' The guilty party is, by some statutes, allowed to remarry upon showing good behavior and obtaining per- mission of the court.* Such permission must be first ob- tained or the second marriage will be void.^ It is held that' these statutes are not void as being in restraint of marriage and therefore contrary to public policy,^ and, though retro- spective, are not void as being ex post facto laws.' The evident intent of these statutes is to prevent the guilty party from entering into another marriage. He hav- ing been unfaithful to the obligations of the first marriage, it is presumed that he is unfit to enter into a second marriage unless he reforms. But such prohibition is in fact a re- straint of marriage. It leaves at large a person who, by false representations, may induce an unsuspecting woman to enter into a void marriage ; or if this does not occur, the unfortunate defendant, who cannot marry, is tempted to continued adulteries without incentive to reformation. A prohibition which restrains marriage, encourages adultery, leaves the party in a position to contract void marriages, and takes away a natural incentive to reformation, should be held contrary to public policy. These consideraticins are sufficient to justify the repeal of such statutes.* The prohi- Moore v. Moore, 8 Abb. N. C. 171 Colvin V. Colvin, 3 Paige, 385 Green's Case, 8 Abb. N. C. 450 Cox u Combs, 8 B. Mon. 231 ; Thomp- son V. Thompson, 114 Mass. 566. sMusiok V. Musiok, 88 Va. 13, 13 Peugnet v. Phelps, 48 Barb. 566. S. E. 303. It is held that a marriage with the < Sparhawk v. Sparhawk, 114 guilty party is valid where both Mass. 355; Peckz;. Peck, 8 Abb. N. C. parties were not residents of the 400; Morgan v. Morgan, 1 P. & M. state of New York at the time the 644; Cochrane's Petition, 93 Mass. marriage was entered into. Sue- 276; Childs' Case, 109 Mass. 406. cession of Hernandez (La.), 15 So. 'Thompson v. Thompson, 114 461. Mass. 566. 1 P. V. Taber, 92 N. Y. 146, over- « Owen v. Braokett, 75 Tenn. 448. ruling P. V. Hovey, 5 Barb. 117. 'Elliott v. Elliott, 38 Md. 357. 2 Peck V. Peck, 8 Abb. N. C. 400; ^ statutory prohibition of reniar- § 588.] PEIOE MAEEIAGE UNDISSOLVED. 557 bition applies only to the parties who have been found guilty by a decree rendered in the state, and has no refer- ence to a decree granted in another state.^ The authorities are almost uniform that such statutes, being penal, have no extraterritorial operation, and unless there is an express provision making a marriage entered into in another state void, the guilty party may contract a valid marriage in an- other state, even though both parties are residents of the state where the decree was rendered, and went out of the state to evade its laws.^ Tiage has been repealed in Maine and Massachusetts. 1 PhiUips V. Madrid, 83 Me. 305, 23 A. 314; Bullock v. BuUock, 133 Mass. 3. ^Van Voorhis v. Brintnall, 86 N. Y. 18, overruling Thorp v. Thorp, 47 Sup. Ct. 80, and Marshall V. Marshall, 3 Hun, 288; S. C, 48 Barb. 57. See other authorities in this state. Thorp v. Thorp, 90 N. Y. 605; Miller v. MiUer, 91 N. Y. 331; Moore v. Hegeman, 93 N. Y. 531. See, also, Ponsford v. Johnson, 3 Blatchford, 51. See, also, FuUer v. Fuller, 40 Ala. 301; Dickson v. Dickson, 1 Yerg. approves Kinney v. Com., 30 Grat. 'Mason v. Mason, 101 Ind. 25; 858; State v. Kennedy, 76 N. C. 251, Park v. Barron, 20 Ga. 702. and State v. Boss, 76 N. C. 243, all * Barrowdale's Estate, 28 Hun, cases in which the marriage of 336; Marshall t;. Marshall, 4 Thomp. a white person and a negro in an- & C. 449; Cropsey v. Ogden, 11 other state, for the purpose of N.Y. 228; Thompson u Thompson, evading local laws, was held in- 114 Mass. 566; Ponsford v. John- valid, son, 2 Blatchf. 51; Fuller v. Fuller,. 40 Ala. 301. § 590.] PEIOE MAKEIAGE UNDISSOLVED. 559 and the only relief that can be obtained in such cases is to have the subsequent marriage annulled. Although the stat- ute includes bigamy "with other causes for divorce, the inten- tion is to provide a remedy for void marriages. Where the statute pro^ades that a void marriage shall be valid until annulled, the second marriage will be treated as valid and subsisting until such decree of annulment is rendered. In effect this would make the issue of the void marriage equal heirs with the issue of the first marriage, and in some in- stances the second wife would be entitled to alimony. The terms of the statute governing marriage and divorce may contain such omissions and expressions as to make it clear that bigamy is to be treated as a cause for divorce and not a ground for annulment of the marriage. But unless this^ intent clearly appears, the true construction is that the stat- ute is intended to confer jurisdiction upon the court to grant the proper relief in certain cases, and the fact that a ground for nullity was included among causes for divorce wiU not prevent the court from annulling the marriage and thtus grant the same relief that might have been obtained in the ecclesiastical courts. The statutes also declare the marriage of one of the parties to a third person is a cause for divorce. Both forms of statute are perhaps unnecessary, as the void marriage can be annulled and the remedy for subsequent void marriage is a divorce for adultery. § 590. Effect of void marriage at the common law. — A void marriage at common law^ had no legal effect. Chil- dren born of such marriages were bastards, and the supposed wife was not entitled to dower or property rights.' The- wise and humane rule of the civil law relieving the innocent party from the result of a grievous mistake in contracting a. void marriage has not softened the harshness of the com- mon law. Legislation has, however, mitigated the evil con- sequences of the void marriage. In some states such marriage 1 Smith V. Smith, 5 Or. 186: Don- Higgins v. Breen, 9 Mo. 493; Woods nelly v. Donnelly, 8 B, Mon. 113; v. Woods, 3 Bay, 476; Smart v, Jackson v. Claw, 18 Johns. 346; Whaley, 6 Sm. & M. 308. 560 PEIOE MAEKIAGE UNDISSOLVED. [§ 591. is voidable and not void, or stands as a good marriage until annulled by the proper court.' In many of tbe states the statutes provide that the issue of all marriages deemed null in law shall nevertheless be legitimate.^ But it is believed that in no state except Louisiana is the stern rule of the common law so modified as to give the innocent party any right to her husband's estate. Either party may obtain a decree annulling a bigamous marriage. The ordinary rules ■of estoppel in cases of fraud do not apply to this action, be- cause the marriage is void independently of any fraud or admissions of the guilty party who has entrapped the other into the marriage. Sometimes relief is granted on the ap- plication of the guilty party.' § 591. Told marriages under the civil law. — The laws of Louisiana are derived principally from the civil law as it /existed in France and Spain. The civil code of that state relating to putative marriages is the same as the French •code, and provides that " the marriage which has been de- clared null produces its civil effects as it relates to the par- ties and their children if it had been contracted in good faith. If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor and in favor of children born of the marriacfe." * This is a ■"o^ 1 VaUeau v. Valleau, 6 Paige, 207; Watts v. Owens, 62 Wis. 513; Glass Cropsey v. McKinney, 30 Barb. 47; v. Glass, 114 Mass. 563; Hatwell v. Gall V. Gall, 114 N. T. 109; White Jackson, 7 Tex. 576; Graham v. iv. Lowe, 1 Eedf. 376; Wyles v. Bennet, 3 Cal. 503; Curtis v. Hew- Gibbs, 1 Redf. 383; Spicer u Spicer, ins, 11 Met. 394; Hiram v. Pierce, 16 Abb. Pr. (N. S.) 113; Machini v. 45 Me. 867; Earle v. Dawes, 3 Md. Zanoni, 5 Eedf. 493; Jones v. Zol- Ch. 330. ler, 33 Hun, 280, 39 Hun, 551. See » Glass v. Glass, 114 Mass. 563; construction of California civil Anonymous, 3 Thompson & C. 558, code, sec. 61, in Jackson v. Jack- 15 Abb. Pr. (N. S.) 171; Miles v. son, 94 Cal. 446, 29 P. 957. Chilton, 1 Bob. Ec. 684; Norton v, 2Teter v. Teter, 101 Ind. 139; Seaton, 3 Phillim. 147. See contra, Wright V. Lore, 13 O. St. 619; Dyer Tefft v. Te£Et, 35 Ind. 44 V. Brannock, 66 Mo. 391 ; Lincecum * Articles 117 and 118 of the Civil V. Lincecum, 3 Mo. 441; Harris u Code of Louisiana, and articles 391, Harris, 85 Ky. 49, 3 S. W. 549; 293, Napoleon Code. Bowers V. Bowers, 1 Ab. Pr. 214; ,§ 591.J PKIOE MAEKIAGE UNDISSOLVED. 561 "wise and beneficent rule, relieving the innocent party and his or her heirs from all forfeitures, and declaring the chil- dren of the marriage legitimate. Similar provisions might Avell be adopted in all the states. The good faith here re- ferred to means an honest and reasonable belief that the marriage was valid and- that there existed no legal impedi- ment thereto.' The party is deemed to have exercised good faith whether she has made a mistake of law or of fact.^ Although the naarriage between an uncle and niece may have been a nullity, the wife is held to have acted in good faith where she acted upon the advice of friends and counsel that such marriage would be valid.' A wife does not act in good faith where she relies upon the mere statement of the man that he is divorced, when she has been informed by the first wife that there was no divorce and has been warned by others to the same effect.* Perfect good faith is shown where a decree of divorce has been obtained but is void for want of jurisdiction or other cause.' Under this code a woman who is deceived into a marriage with a man who has a wife living and undivorced becomes entitled to all the rights of a wife, and the children born of this marriage are legitimate.* Thus, where the second wife marries in good faith while the first marriage is undissolved, at the death of the husband she and her children by deceased will share the conamunity property with the first wife and her children 1 Harrington v. Barfleld, 30 La. band's estate. Succession of Llula, An. 1297; Succession of Navarro, 44 La. An. 61. 24 La. An. 398; Abston v. Abston, 5 Smith v. Smith, 43 La. An. 1140. 15 La. An. 137. « Gaines v. New Orleans, 6 Wall. 2 Succession of Buissiere, 41 La. 642; Gaines v. Hennen, 24 How. An. 317, 5 So. Eep. 668. (U. S.) 553; Summerlin v. Liying- 3 Id. ston, 15 La. An. 519; Colwell's Suo- * Taylor's Succession, 39 La. An. cession, 34 La. An. 265; Hebert's 833. She does not act in good faith Succession, 33 La. An. 1099; Hub- where she deserts her husband and bell v. Inkstein, 7 La. An. 252. See, marries another man and resides also, Gregory v. Dyer, 15 Lower in the same community as her hus- Canada J. 223; Morin v. Cor de tend. In such case she is not en- Pilots, 8 Quebec, 232. titled to a share of the second hus- 86 562 PRIOR MARRIAGE UNDISSOLVED. [§591, by deceased.' Or if the parties separate before the death of the husband, the interests of the parties of the second mar- riage will be regulated in the same manner. Should the disability which rendered the marriage void be subsequently removed, the putative marriage becomes good.^ 1 Jennan v. Tenneas, 44 La. An. 2 Smith v. Smith, 1 Tex. 631 ; Lee 620; Abston v. Abston, 15 La. An. ii. Smith, 18 Tex. 141; Patton v. 137. Philadelphia, 1 La. An. 98. ' FRAUD, ERROR AND DURESS. 600. In general § 611. 601. Jurisdiction in the absence of statute. 613. 603. Fraud where the marriage is not consiunmated. 613. 603. Affirmance of marriage. 604. Misrepresentation of chas- 614 tity. 615. 605. Representing her child le- 616. gitimate. 617. 606. Pregnancy concealed from 618. innocent husband. 619. 607. Concealed pregnancy, hus- band guilty of fornication. 620. 608. False representation as to paternity. 621. 609. False representation as to 633. paternity — Child born be- 623. fore marriage. 634 610. Pretended pregnancy. Conspiracy to bring about marriage. False representations as to wealth and character. Fraud in obtaining license — False ceremony. Misrepresentation of age. The evidence of fraud. Error or mistake. Duress, in general. What duress is sufficient. Unlawful arrest or impris- onment. Marriage under arrest. Threats of arrest and imr prisonment. Duress from other parties. Effect of consummation. Pleading and e\ridenc& § 600. In general The three grounds for annulment of marriage — fraud, error and duress — are best treated together in the same chapter, since they are cognate subjects. These elements occur in the same cases in a manner rendering it difficult to give each subject a separate analysis. Thus, where a woman, pregnant by another, procures a marriage with a man who has sinned with her, by falsely representing that the child is his, and by the threats of arrest and im- prisonment, all three of the subjects are involved in the case. The subject is difficult and judicial opinions are few and not very satisfactory. It would seem that the fraud which justifies the cancellation of an ordinary contract would be sufficient to relieve a party from a marriage procured by 564 FEAUD, EEKOK AND DDEESS. [§ 600. fraud. The ordinary contract, if sustained, may impose a pecuniary loss from which the injured party will easily re- cover without serious or continued evil consequences. But if a marriage procured by fraud is not annulled the most serious consequences follow; the parties are bound in law to love and cherish when in fact this is impossible. The fraud and duress engender a loss of respect and hatred which will prevent the performance of duties of the marriage, and the relation will not exist except in its legal effect. A decree affirming a marriage procured by fraud sufficient to entrap th^ weaker party is in such case a mere nullity so far as the stability of the marriage relation is concerned, but is what the defrauding party designed it to be — a decree conferring all the property rights of a valid marriage. Public policg^, it would seem, does not require the weaker party to forfeit property rights in such cases in order to sustain the stability of marriage as a public institution. On the contrary it would seem that as marriage entails such important responsibilities, imposes duties, both public and private, and continues these duties and responsibilities throughout the joint lives of the parties, that public policy would require the marriage to be annulled for a less degree of fraud than would render a con- tract voidable. Thus, where a professional thief, without means, by fraudulent representations procures a conveyance of real estate from a credulous and confiding woman, she is entitled, by all authorities, to have this conveyance set aside. But if this same thief should, by representations as fraudu- lent and effective, persuade the woman that he has character and wealth, and she in reliance thereon marries him, the courts have not agreed that the marriage should be annulled. One line of authorities maintain' that his representation as to wealth and character, although sufficient to deceive the credulous party and obtain consent to the marriage, is never- theless a small deception as to a non-essential fact — a mere exaggeration which is immaterial if the party is in fact of sound mind and perfect body. The relief is denied because it would tend to weaken the sentiment and stability of mar- § 601.] FRAUD, EKEOE AND DURESS. 565 riage if such misrepresentations were grounds for annul- ment. Directly opposed to this is the view that if a marriage is procured by such representations it should be annulled; that to deny relief in such a case will not tend to maintain the stability of marriage as a public institution, but Avill rather tend to bring reproach upon the administration of justice; that no mandate of the law will deter the weak, credulous and ignorant from indiscreet marriage. The latter view is the most humane and practical, the best public policy and most consonant with the general law of fraud, but must be received with caution and subject to some exceptions. The exceptions are created by the fact that marriage in- volves the interest of the state, the rights of the unborn, the social and the legal relations of husband and wife to the general public. Marriage begins by contract and results in a status. If, before children are begotten, before debts are created, real estate involved, and the community have long recognized the relation, the injured party seeks relief from fraud, error or duress, it seems clear that no consideration of public policy wiU prevent a court from annulling a mar- riage where the relation has not fully ripened into the com- plications of a public statxis. In such case the marriage is but little more than a contract ; and, in view of the serious consequences to foUow, the degree of fraud which vitiates a contract should be sufficient. But after long cohabitation, when a chUd is begotten, debts created and titles acquired, the public has an interest in the continuance of the relation. In such case the law is clear. The injured party is denied relief because the delay is too great or the marriage is affirmed. The authorities are not in accord on many questions relating to fraud, and it may be said that fundamental principles of this most dif- ficult subject are still in dispute. §601. Jurisdiction in absence of statute.— Although the statute did not specify fraud as a ground for the annul- ra.ent of marriage, the courts may determine cases of this 566 FEAUB, EEEOE AND DTJEESS. [§ 602. kind under the general jurisdiction of courts of equity" to annul fraudulent contracts.' In 'Ne^v, Jersey, at a time when the constitution prohib- ited legislative divorces and there was no provision of con- stitution or statute conferring jurisdiction in such cases upon any tribunal, it was held that the court of chancery had, under its general power to annul fraudulent contracts, the jurisdiction to annul a marriage on account of fraiid,^ § 602. Fraud where the marriage is not consummated. After the marriage is consummated the parties have fully executed the contract of marriage ; their status, is fixed so far as the public is concerned, the property rights of each party are determined with reference to their new relation, and children have acquired rights. To disregard these rights and to annul the marriage is a harsh remedy, not to be re- sorted to except in extreme cases of fraud or mistake. But before consummation the parties stand upon almost the same footing as the parties to an ordinary contract. In one case there has been a ceremony performed before a priest or some person authorized by law, and in the other case the contract is oral or reduced to writing, and signed before wit- nesses. No writing however forma), and no signing how- ever well attested, wiU prevent the law from relieving the 1 Clark V. Field, 13 Vt. 460; Keys of marriage obtained by fraud al- V. Keys, 32 N. H. 553; Burtis v. though there is a suit pending in Burtis, Hopkins, 557 ; Sloan v. Kane, the state courts to obtain a decree 10 How. Pr. 66; Aymar v. Eofif, 3 that a marriage exists between the Johns. Ch. 49; Wightmanu Wight- parties. Compare Sharon u Hill, man, 4 Johns. Ch 343; Scott v. 22 Fed. 1, and Sharon u Sharon, 67 Sohufeldt, 5 Paige, 43; Eespublica Cal. 185. It seems that the valid- V. Henrici. 3 Wheel. C. C. 505; ity of a man-iage may be deter- HuU V. Hull, 15 Jur. 710; Jolly v. mined in a collateral suit in a law McGregor, 3 Wils. & S. 85. In the court, but only as to that particu- following cases jurisdiction was lar proceeding. Ferlat v. Gojon, assumed: Robertson v. Cole, 18 Hopkins' Ch. 478; Clark u Field, 18 Tex. 356; Weir v. Still, 31 la. 107; Vt. 460. True V. Ranny, 1 Foster (N. H.), 52; 2 Carris v. Carris, 34 N. J. Eq. 516 Eeynolds v. Reynolds, 85 Mass. 605. (1873), citing and approving the de- The federal courts have jurisdic- cisions of New York, tion to annul a written contract § 602.] FRAtlD, EKEOK AND DUEESS. 5G7 injured party from the fraud, error or duress which induced him to enter into the contract. And the question arises, Shall a mere ceremony of marriage be set aside like any formal contract where the innocent party discovers the fraud or mistake, and escapes from the control of the other before consummation? Although such cases have been reported, no one of them contains a reference to this distinction, that consummation materially alters the status of the parties; and none of them affirm or deny that ordinary fraud would be sufficient where the defrauded party repudiated the mar- riage before consummation.' In one case we find reference made to the mere fact that there was no consummation, but the court seems to have proceeded upon the theory that the material fraud in obtaining a license was sufficient. The defendant in this case was a coachman, and while driving about the city in such employment he inveigled his employ- er's daughter, a child fifteen years old, into a marriage, hav- ing first obtained a license by falsely swearing that she was of age. The court was of the opinion that such marriage was not valid. " If, however, notwithstanding this crimfe, the parties had voluntarily lived together as man and wife, she knowing it had been committed, the niarriage would be held valid on the principle of acquiescence." ^ Where there has been no consummation, any fraud which would be sufficient to annul a contract should in reason be sufficient to annul a marriage ceremony. 'So satisfactory reason of the law will justify the courts in declaring valid such a contract of marriage when tainted with fraud or duress, where the only effect wiU be the punishment of the 1 Shoro V. Shoro, 60 Vt. 368, 14 A. 355; Harford v. Morris, 2 Hag. Con. 177; Keys v. Keys, 23 N. H. 553 Robertson v. Cole, 13 Tex. 356 Sloan V. Kane, 10 How. Pr. 66 Scott V. Schufeldt, 5 Paige, 43 Jolly V. McGregor, 3 Wils. & S. 85 423; Hull v. Hull, 15 Jur. 710; Res- publica V. Henrici, 3 Wheeler, Crim. Cas. 505; Dalrymple v. Dalrymple, 3 Hag. Con. 54; Harford v. Morris, 2 Hag. Con. 433. Perry v. Perry, 3 Paige, 501; Fer- 2 Lyndon v. Lyndon, 69 111. 43. lat V. Gojon, Hopkins, 478; Ports- See, also, Robertson uCole, 13 Tex. mouth V. Portsmouth, 1 Hag. Eo. 356. 568 FEAUD, EEEOE AND, DUEESS. [§ 603, innocent and the confiscation of his or her property by the deception. If the marriage is declared valid it will exist in name only, preventing both parties from marrying again and bringing the marriage relation into disrepute. Every reason for relief from fraud is applicable here, where a de- nial of relief is fraught with evil consequences much greater than those flowing from ordinary contracts. § 603. Affirmance of marriage. — Ordinarily a party wha continues cohabitation after being induced by fraud to enter into a marriage is held to have affirmed the marriage, and is bound by it. Before a party discovers the fraud of which he complains, he is not barred by any conduct which would otherwise prove a ratification or affirmance of the marriage. 'No doctrine of condonation or estoppel applies where the party asking for relief separated from the other as soon as the wrong was discovered. But for reasons of public policy, a marriage should not be annulled after the parties have cohabited as husband and wife for years. Thei'e are, how- ever, some instances where the fraud must be discovered within a reasonable length of time after the marriage, and in such cases a cohabitation until the discovery of fraud is not a bar; as where the fact that the wife was pregnant by another is not discovered until some months after the child is born. Thus, in a Michigan case, a young man became acquainted with a woman by correspondence, and after- wards married her on the third day after meeting her. Six months after the marriage and during the husband's ab- sence she gave birth to a fuUy-developed child. "When the child was two weeks old he came home, and the wife ex- plained to him that the birth was premature, and that the child when born was undeveloped, but had developed won- derfully in two weeks' time. The husband, being ignorant and inexperienced, accepted this explanation, and lived with the wife for six months, when the fraud was discovered and he separated from her. It was held that such cohabitation did not bar the suit.' By statute in some states cohabita- iHanisoQ v. Harrison, 94 Mich. 599, 54 N. W. 274 § 604.] FEAUD, EEEOE AlfD DUEBSS. 56^ tion after the marriage will bar an action to annul the mar- riage.' But such statutes are to be interpreted with refer- ence to the common law, and refer to cohabitation after discovery of the fraud. §604. Misrepresentation of chastity. — Ante-nuptial chastity is not deemed such essentialia of the marriage rela- tion that a misrepresentation concerning it amounts to a fraud rendering the marriage voidable.^ It is not denied that such misrepresentation is a gross fraud, causing great un- happiness, where a virtuous person finds he is married for life to prostitute or a woman whose ill repute is generally known. Ifor is it denied that the consequences may be equally disastrous where the incontinence has resulted in pregnancy ; for, in either case, if the parties have any high sense of honor or virtue, they wiU refuse to continue the marriage relation. But the law denies reUef in such cases on grounds of public policy. In a carefully considered opinion in a case of concealed pregnancy, Bigelow, Chief Justice, reasons as follows : " In regard to continence, as well as other personal traits and attributes of character, it is the duty of a party to make due inquiry beforehand, and not to ask the law to relieve him from a position into which his own indiscretion or want of diligence has led him. Cer- tainly it would lead to disastrous consequences if a woman who had once fallen from virtue could not represent herself as continent, and thus restore hei-self to the rights and priv- ileges of her sex, and enter into matrimony without incur- ring the risk of being put away by her husband on discovery of her previous immorality." ' If marriages should be an- nulled for this cause, the incontinent would live Avithout hope, condemned to celibacy and doomed to incontinence. 1 Glinsman v. G-linsman, 13 How. v. Carrington, 2 De F. & J. 481. Pr. 33; MuUer v. Muller, 21 Weekly See, also, Best v. Best, 1 Adams, Digest (Pa.), 287. 411; Graves v. Graves, 3 Curties, 2 Varney v. Varney, 53 Wis. 130; 395. WiUiams v. WiUiams, 63 Wis. 58 ; ^ Reynolds v. Reynolds, 85 Mass. Allen's Ap., 99 Pa. St. 196; Evans 605. 570 rEATJD, EEEOE AND DUEESS. [§§ 605 j" 606. It would prevent reform and permit the reputation of the virtuous to be destroyed by manufactured testimony. And it has been suggested that, in states where communications between husband and wife are excluded, if the husband, on being informed by her of the misbehavior, should forgive her wrong-doing, this forgiveness could not be shown in a suit to annul the marriage for this cause.^ Ante-nuptial in- c:)ntinence is a cause for divorce.^ § 605. Representing her child legitimate — Divorcee claiming to he single. — Nor is the concealment of ante- nuptial incontinence resulting in the birth of a child a fraud suiilcient to render the marriage voidable. A representar tjon by a woman that her child is the fruit of a former mar- riage, when in fact the child is illegitimate, is not a fraud in the essentialia of the inarriage relation, aad in this respect resembles misrepresentations as to chastity.' The law en- courages the mother of a bastard child to reform and pro- tects her in the marriage relation, and refuses to annul the marriage for concealing her unchastity. For similar reasons misrepresentations as to the stdtus of the person, whether single or divorced, is not such a serious fraud as will justify an annulment of the marriage. If a woman represents herself as a maiden when she is a widow or a divorced woman, or if a man represents that he is a bachelor when he is a widower or a divorcee, the misrepre- sentation is not a sufficieat,f raud, if the complaiiaing party does not discover the fraud before the marriage is consum- mated.* ' , § 606. Pregnancy concealed from innocent hashand. — It is now weU established that a marriage is voidable for fraud where the woman conceals her pregnancy from the man who has had no improper relations with her and who 1 Leavitt v. Leavitt, 13 Mich. 453. this case the wife represented her- 2 See Ante-nuptial incontinence, self single when in fact she had § 380. been married and had obtained a SFarr r. Farr, 2 Mac Arthur, 35; divorce from her former husband. Smith V. Smith, 8 Or. 100. The opinion does not state that the ^ Fisk V. Fisk, 12 Misc. 466. In marriage was consummated. § 606.] FEAUD, ERROR AND DURESS. 571 marries lier without knowledge of her condition.' The true reason for considering this conceahnent a fraud is that a "woman who consents to marry a man impliedly represents lierself to her future husband as chaste and able to bear him his own children. " A child," said Field, J., " imposes bur- dens and possesses rights. It would necessarily become a charge upon the defendant and, through her, upon the plaint- iff. It would become presumptive heir of his estate, and en- titled under our law, as against his testamentary disposition, to an interest in his property acquired after marriage, to the deprivation of any legitimate offspring. Tlie assump- tion of such 'burdens, and the yielding of such rights, cannot be inferred in the absence of actual hnowledge of her condi- tion on his part.'''' ^ And we find the same reason given bv the Massachusetts court : " Therefore a woman who is in- capable of bearing a child to her husband at the time of her marriage, by reason of her pregnancy by another man, is unable to perform an important part of the contract into which she enters ; and any representation which leads to the belief that she is in a marriageable condition is a false state- ment of a fact material to the contract, and on well settled principles affords good ground for setting it aside and de- claring the marriage void.'^, . . . "There is no sound rule of law or consideration of policy which requires that a marriage procured by false statements or representations, and attended with such results upon an innocent party, rshould be held valid and binding on him." ' These reasons, it will be noticed, have peculiar reference to marriage as a physical union. But if other reasons were necessary to sustain a doctrine so manifestly sound and just, it may be urged that marriage is also an intellectual and 1 Baker v. Baker, 13 Cal. 87; Key- Harrison v. Harrson, 94 Mich. 599, nolds V. Reynolds, 85 Mass. 605 Morris v. Morris, Wright, 630 Donovan v. Donovan, 91 Mass. 140 -Carris v. Carris, 34 N. J. Eq. 516 Allen's Ap., 99 Pa. 196; Nadra v. :Nadra, 79 Micli. 591, 44 N. W. 1046 54 N. W. 275; Bitter u Bitter, 5 Blackford, 81. 2 Baker v. Baker, 13 Cal. 87. 3 Beynolds v. Beynolds, 85 Mass. 605. 572 FKAUD, EEEOE AND D0EESS. [§ 606. spiritual union, based upon, love and confidence, and a decep- tion so base is a fraud upon the party contracting for such love and confidence. If a bride is pregnant by a stranger at the time of maiTiage she is incompetent to enter that relation, viewed in its highest and holiest sense; and her mere consent to enter the relation implies a warranty on her part that she is competent to do so. Manifestly, it is not required that a man shall make indecent and insulting inquiries before marriage. But the courts have held that a nian, having married a woman who has fallen at least once, takes her with notice that she is unchaste and is thereby put upon his guard, and is bound to accept as his own any child that may be born after the marriage, whether black or white.^ The injustice of such decision is as remarkable as the erroneous conclusion of fact upon which the reasoning is based. It is not a fact that a woman, who once yields to the man she loves, has been unchaste. Such presumption is violent and is not based upon the usual course of human conduct. It is in contrast with that wholesome and just presumption of the law that innocence is always presumed. And the law of notice is not applicable to questions of chastity for certain physical reasons not necessary to be dis- cussed here. Some courts have denied relief because the plaintiff is himself participant in the wrong. The rule of equity that the plaintifif must come with clean hands applies to those cases only where the plaintiff is guilty of some evil con- duct in reference to the transaction before the court, and relief is never denied because he leads an immoral life, or is unscrupulous in other business. Here the wrong com- plained of is a child begotten by another which the woman attempts to force upon him as his own. It is difficult to 1 Seilheimer v. Seilheimer, 40 N. Scroggins v. Scroggins, 3 Dev. & B. J. Eq. 413; Crehore u Creboie, 97 535. See dissenting opinion, Sissung Mass. 330; Long v. Long, 77 N. C. v. Sissung, 65 Mich. 168, 31 N. W. 304; Foss v. Foss, 94 Mass. 26; 770. States V. States, 37 N. J. Eq. 195; § 607.] FEAUD, EREOE AND DUEESS; 573 see how this rule applies to these cases where the plaintiff has had intercourse with a woman who at the time was pregnant by another.^ § 607. Concealed pregnancy, husband guilty of forni- cation. — The same evil consequences flow from the birth of a child begotten by a stranger, whether the husband is guilty or innocent of fornication with the woman. He must support a bastard child who comes into his home an unin- vited guest and unwelcome heir. If an upright and right- minded man, who, having, as he supposed, seduced a virtuous woman, and then, to obliterate her sin as far as he can, has married her, believing she bears in her womb the fruit of their first indiscretion, discovers that he has been deceived, is he bound by such a marriage? Must he be compelled to live with, or at least support, a woman who has thus betrayed him? Must he be compelled to recognize this bastard as his own offspring, as the heir of his own name and estate, as an object of life-long humiliation? "Upon what principle of justice can the law impose such consequences except upon' the ground that he voluntarily consented to it? No good purpose win be subserved by charging upon a man who has 1 These reasons are now gener- not, and thus persuaded the man ally accepted. But in an early to marry her. Barden v. Barden, ' case in North Carolina the court, in 3 Dev. 548. The court justified refusing to release certain white this change of doctrine as a " con- parties where the wife gave birth cession to the deep-rooted and to a mulatto child, did not recog- virtuous prejudice of the com- nize fraud as a cause for annul- munity." From which Rodman, ment of marriage. Scroggins v. J., infers that the court had ascer- Scroggins, 3 Dev. 533 (1832). The tained that the common sense of court said there was, " in general, the people rejected the former no safe rule but this: that persons opinion and was thus induced to who marry agree to take each other recede from such doctrine. See as they are." But subsequently dissenting opinion of Rodman, J., this doctrine was abandoned and in Long v. Long, 77 N. C. 304. See marriage annulled where a woman, criticism of Scroggins v. Scrog- after the birth of her mulatto gins in Baker v. Baker, 13 Cal. 87, chUd, represented that the child and Sissung v. Sissung, 65 Mich. was white and the result of their 168, 31 N. W. 770. intercourse, when in fact it was 574 FEATJD, EEEOB ANH DUKESS. [§ 608, been guilty of fornication, a child" of foreign blood, or by attempting by a decree to coerce him to live with his be- trayer, when there is no union in fact, and such decree will be a vain record except as an " instrument of undeservetl and perpetual torture." If such a marriage cannot be an- nulled, then the only safe course for such a man is to refuse to marry the woman, or, if he discovers the truth after mar- riage, to desert her and allow her to obtain a divorce. § 608. False representation as to paternity. — Suppose that a woman, pregnant by another, induces a man, who has had intercourse with her while she is pregnant, to believe that she is pregnant from such intercourse, and she insists upon a prompt marriage to save her reputation. The man, believing the woman to be virtuous and the unborn child to be his own, marries her with the worthy motives of saving her reputation and making the best amendment possible for this supposed seduction. Can he have the marriage annulled for this fraud when he proves conclusively that the woman was unchaste before he met her ? It has been decided that siuch marriage is not voidable because he was put upon his guard by participating with her in crime, and should have made careful inquiry by consulting a physician as to her condition.' In Michigan it was said concerning a case pre- senting the same question, that " the fraud in this case is a more potent reason for a nullification of the marriage than it would be in a case where the man was ignorant of the pregnancy. In such a case the woman makes no represen- tation, except as the concealment of her condition may tend in that direction ; but here a false statement is made, and an appeal based thereon to the better and kindlier nature of the man, who, moved thereby, undertakes to make restitu- tion for his supposed wrong, and, in so doing, falls easily into the trap laid for him by a wanton and designing woman. He is certainly entitled to a release." ^ " The essence of the iStatesD. States,37N. J. Eq. 195; 31 N. W. 770. In this case the Foss V. Foss, 94 Mass. 27. lower court oveiTuled a demurrer ^Sissung.v. Sissung, 65 Mich. 168, to plaintifiE's petition, and the rul- § 609.] FEAUDj EBEOE AND DUKESS. 675> irikrriage contract is wanting when the woman, at the time of its consummation, is bearing in her womb, knowingly, the fruit of her Ulicit intercourse with a stranger ; and the re- sult is the same whether the husband is ignorant of her pregnancy, and believes her chaste, or is cognizant of her condition, but has been led to believe the child is his." ' § 609. False representation as to paternity — Child born before marriage. — After the birth of the child a different case is presented. Here the husband has notice, before he marries, of two facts that should put him upon his guard : the date of the birth, from which the period of gestation may be calculated, and also the color and appearance of the child, which may often disclose its paternity. If a man, with no- tice of these important facts, chooses to rely upon the rep- resentations of the woman that he is the father of the child, it would seem that he should be bound by his negligence in not making fuU inquiry. But the law of notice is not ap- plied to such cases. Here is a deliberate fraud by the woman, and a mistake of fact as well as a reliance upon the misrep- resentations. "Where a white woman, after illicit intercourse with a white man, gave birth to a mulatto child, yet per- suaded the man that he was the father of the child, and thus brought about k marriage by her false representations, the ing was affirmed by an equal di- bearing a child to her husband at -vision of the court. Although such the time of her marriage . . . division prevents any direct de- is unable to perform the contract cision of the whole court, the rea- into which she enters; and any sons assigned in the opinion are representation which leads to the worthy of 'examination. belief that she is in a marriageable I Id. And in this connection the condition is a false statement of a court cites the following from the fact, material to this contract, and, opinion of Bigelow, C. J., in Reyn- on well settled principles, affords oldsu Reynolds, 85 Mass. 605: "A good ground for setting it aside, husband has a right to require that and deoLiring the marriage void." his wife shall not bear to his bed It will be observed that this Ian- aliens to his blood and lineage, guage was used with reference to This is implied in the very nature concealed pregnancy, but the Mich- of the contract of marriage. There- igan court considered it applicable fore a woman who is incapable of to the case before it. 576 [§ 610. husband, upon afterwards discovering the fraud, Avas allowed a decree of annulment.'' § 610. Pretended pregnancy. — If the parties have had illicit intercourse, the marriage will not be annulled because the woman falsely represents that she is pregnant and thus induces the man to marry her to prevent disgrace.^ In such ■ cases the pregnancy is always a doubtful matter, and if it does not exist it is still a matter of some uncertainty that a child will be born. The husband having placed himself in such a position that he cannot tell whether the woman is or not pregnant, and is thus in her power, is still free to pursue his own course. He may dishonor the woman by refusing to marry her, and, if a child is born, be liable to bastardy proceedings. Or he may choose to marry her from such • Barden v. Barden, 3 Devereaux (N. C), 548 (1832). And see, also, similar case, Scott v. Schufeldt, 5 Paige, 43 (1835), where one object of the marriage was to avoid pend- ing bastardy proceedings. The majority of the court were of the opinion "that when a man is act- ing in good faith, and marries with the design on his part to repair the injury done to a female, whom he supposes to be the reluctant victim of his own solicitations, which a strong and exclusive affection for him made her unable finally to re- sist, advantage shall not be taken of his confidence and honorable principles of action to draw him by false tokens and artful devices of this sort. . . But by await- ing tliat event (birth), and promptly following it up by consummating the contract, while the child was very young, it is but reasonable to conclude that the birth of the child, and the belief that it was his own, constituted the prevailing, perhaps the chief, motive and inducement for this action. The obstacle with me on this part of the case is, that the color of the child is an object of the senses; and that it can hardly be supposed that a man would marry a woman because he be- lieved her to be the mother of his child, without being drawn, even by curiosity, not to say instinctive affection, to see the child itself. But it may be that in so young an infant, whose mother was white, it might not bein the power of an ordinary man, from inspection of the face and other uncovere'd parts ; of the body, to discover the tinge, although it were so deep as to lead to the belief now that it is the issue of a father of full African blood.'' This case was then reversed and remanded for proofs. 2 Todd V. Todd, 149 Pa. 60, 24 A. 128; Tait v. Tait, 3 Miscellaneous E. (N. Y.) 218; Hoffman v. Hoff- man, 30 Pa. St. 417; Fairchild v. Fairchild, 43 N. J. Eq. 478. § 611.] FEAUD, EEEOE AND DUEESS. 577 excellent motives as to recompense the seduction as far as possible to shield her honor as well as his own, and to as- sume in advance liabilities which he believes are inevitable. When he marries under such circumstances, he voluntarily assumes a known risk that the pregnancy exists. He takes the woman for better or worse, and should not be released because no pregnancy existed and the unfortunate affair has resulted better than he has calculated. This is not a case of Tinmixed fraud, because the man relies not alone on her rep- resentations, but in part upon the knowledge of his guilty •conduct. He does not assume unknown habilities and condi- tions, as. is the case where a man marries a woman whom he believes is chaste, when in fact she is concealing the fact that she is pregnant by another. Where the marriage is thus voluntarily entered into Avith knowledge of the risks assumed, the question of consumma- tion is immaterial, although if it existed it would be an ad- -ditional reason for denying a decree. § 611. Conspiracy to bring about marriage.— It is a general rule that no conspiracy of third parties is adequate to render a marriage voidable unless the plaintiff was in- •capable of consent at the time, or did not, for some reason, give complete consent. If the marriage is the voluntary act of both parties, and neither of them is aware of fraud, the marriage is valid although it is brought about by the deceit- ful practices and fraudulent representations of third persons. If the conspiracy was instigated by one of the parties, or if the conspiracy of others is unknown until about the time of the marriage, and upon learning of the fraud he avails hun- self of it, the marriage would be voidable at the option of the innocent party if the fraud was otherwise sufficient. These general doctrines are subject to the control of the cir- cumstances peculiar to each case ; but it is, perhaps, safe to say that in other cases the conspiracy of third parties Avill not bind an innocent party to a bad marriage. If third parties combine, as in the case supposed by Lord Stowell, •" to intoxicate another and marrying him in that perverted 37 578 FKAUD, EEEOE AND DUEESS. [§ 611, state of mind, this court would not hesitate to annul a mar- riage on clear proof of such a cause connected with such an effect. ISTot many other cases occur to me in which the co- operation of other persons to produce a marriage can be so considered if the party was not in a state of disability, nat- ural or artificial, which created a want of reason or volition amounting to an incapacity to consent." ^ "Where marriages have been annulled on account of fraud and conspiracy, the weaker party is generally imposed upon on account of youth or some mental incapacity which pre- vents intelligent cohsent. As where the marriage is de- clared void on account of fraud practiced by the trustee and solicitor of a party of weak mind ; ^ or where a girl of ten- der years is entrapped into a marriage to which she gave apparent but feigned consent ; ' or where commissioners of the poor, for the purpose of effecting a change of the settle- ment of a woman " feeble both in body and in mind," bring about a marriage by threatening to withdraw all her sup- port unless she marries the man whom they have hired for that purpose ; * or where the relatives of an insane woman concealed her condition from the man, and by fraudulent devices and practices brought about the marriage.' The consent of one of the parties is obtained by fraud and con- spiracy when a girl is intoxicated and taken before a priest,, who supplies more liquor and performs the ceremony whil^ she is under the influence of it and unable to give intelligent consent.* Where a marriage is contemplated, but no con- sent is given, it wiU. be annulled where the girl is entrapped and surprised into a ceremony before the nature of it is 1 Sullivan v. Sullivan, 2 Hagg. s pgrlat u. Gojon, Hop. Ch. 478. Con. 238. In this case the father « Barnes v. Wyethe, 38 Vt. 41. of the husband, a minor, brought ' Keys v. Keys, 23 N. H. 553. The suit to annul the marriage of his husband was the plaintiff in this son to a girl of humble birth on case, and the marriage was an- account of undue publication of nulled on account of the fraud and banns and fraud. not the insanity of the wife. 2 Portsmouth v. Portsmouth, 1 ^ Sloan v. Kane, 10 How. Pr. 66, Hag. 355. § 612.] FKATTD, EEEOK AND DtTEESS. 579 made known to her, and the circumstances show her to be greatly excited and incapable of deliberate consent, and the marriage is not consummated.' A noted case of conspiracy was where a girl of fifteen was decoyed from her boarding- school by a false report that her mother was dangerously ill and had sent for her. The conspirators having thus ob- tained possession of her person, induced her to marry one of them, representing that her father had fled in great dis- tress to evade arrest on account of bankruptcy, and reading a pretended letter from him asking her to save the estate by marrying this person. Before the marriage was consum- mated she was discovered by her friends. This marriage Avas declared void by act of parliament.^ § 612. False representations as to wealth and char- acter. — After consummatijan, a marriage will not be an- nulled on account of fraud of one of the parties in repre- senting himself to be what he is not.' He may represent that he has wealth, or is of good character, and if the inno- cent party rely upon such representations no relief wiU be granted if the marriage is consummated before the fraud is. discovered. Eelief is denied in such cases for the reason that the remedy for the evils growing out of such mar- riages is not in f acihty of divorce ; and if frequently innocent parties are freed from such marriages, it would result as an inducement for their frequent occurrence, and thus tend to disturb the sanctity with which the marriage bond should be regarded.* This is a frequent reason for denying rehef in the most urgent cases of matrimonial wrongs, and does not appear very satisfactory to the writer. A court of equity might hastily relieve its docket of all cases of fraud ' 1 Cameron v. Malcolm, Mor. Diet. The conspirators were afterward 13586. convicted. Rex v. Wakeiield, BO' 2 Turner's Nullity of Marriage Annual Eeg. 316, 1 Deuc. Grim. Bill, 17 Hans. Pari. Deb. 1133. The Law, 4 application was not made in the s Klein v. Wolfsohn, 1 Ab. N. Cas- ecclesiastical courts because of the 134. difficulty of proof, her testimony < Id. being inadmissible in that court. 580 FBATJD, EEEOE Als^D DITBESS. [§ 612. arising from misrepresentation by a summary and harsh ruling that parties must exercise caution before entering into ordinary contracts, and that to relieve from a fraudulent contract would tend to disturb the contracts of the whole business world. Love is blind, and no law can prevent in- discreet marriages while deception and credulity exist. The unwary, who complain in these cases, are always ignorant of the law, and do not calculate upon any of the conse- quences of a hasty marriage, much less the legal remedies to which resort may be had. This reason has, therefore, no application to ill-considered marriages. Another reason is that misrepresentation as to personal qualities is not a fraud or deception as to a material fact essential to the marriage contract. Why such fraud is im- material is not easily explained. "We have, however, a dictum that "the only general rule which can be safely stated is, that to render a contract void on the ground of fraud there must be a fraudulent misrepresentation or con- cealment of some material fact. What amounts to such misrepresentation or concealment, and whether the fact mis- stated or withheld is material, are questions to be deci(Jed according to the circumstances developed in each case as it arises for judicial determination. . . . Any error or misapprehension as to personal traits or attributes, or con- cerning the position or circumstances in life of a party, is deemed wholly immaterial, and furnishes no good cause for divorce. Therefore no misconception as to the character, fortune, health or temper, however brought about, will sup- port an allegation of iraud on which a dissolution of the marriage contract, when once executed, can be obtained in a court of justice. These are accidental qualities, which do not constitute the essential elements on which the mar- riage relation rests. The law, in the exercise of a wise and sound policy, seeks to render the contract of marriage, when once executed, as far as possible indissoluble. The great object of marriage in a civilized and Christian community is to secure the existence and permanence of the family re- § 612.] FEAtlD, EEEOK AND DUEESS. 681 lation and to insure the legitimacy of offspring. It would tend to defeat this object if error or disappointment in per- sonal qualities or character was allowed to be the basis of proceedings on which to found a dissolution of the marriage tie." 1 Before the consummation of the marriage these reasons do not apply. The question is, Shall a mere ceremony of marriage be set aside when the fraud is discovered before a real union of the parties has in fact taken place ? Here is a mere status, existing on the records only, without the in- ception of the family relation, and the annulment of which cannot disturb titles nor mislead creditors. Here no un- born children will " cry out from the mother's womb, de- manding that they may nbt be bastardized, lose a father and know only a disgraced mother." Shall the court relieve an innocent party from a marriage existing in name only, or shall it declare the marriage valid by a decree which is futile in every way except to torture an innocent party, deprive him of his property and prevent his happy marriage to an- other? This question was determined in Iowa upon the following facts : An entire stranger in the community called upon a widow, representing that her friends had recom- mended her as a suitable person for a wife ; and that he was a man of good character and high standing in society, and had many respectable friends and connections, and was able and willing to give any references she might desire. He came again, and allayed any fears she might have concern- ing his character; and represented that he had plenty of means, and was able to maintain her and her child. After a short acquaintance he procured a marriage license, and accompanied her to her mother's house; a justice of the peace was sent for and the marriage ceremony performed. After she escaped from his control and discovered that he was a convict just released from serving his third term in 1 Reynolds v. Reynolds, 85 Mass. terial fact that the concealment of 605. Here the point adjudicated it was a fraud vitiating the mar- was that pregnancy was such a ma- riage contract. 0S2 FEAUD, EEEOE AND DUEESS. [§ 612. the penitentiary, she refused him admittance to her house, a,nd never lived or cohabited vrith him. The court refused to annul such marriage, doubting the sound public policy of doing so, and said : " Mere false representations by one of the parties as to his fortune, character and social standing will not avoid the marriage. If they should be so held, where would courts fix the limits of invalid marriages ? " ' The court overlooked the fact that no consummation took place. The injustice and hardship which this imposed was apparent to the court, for it was admitted that, but for the violation of rules and doctrines, it was desirable to relieve plaintiff from the consequences of her folly .^ This case has not been approved.' In a recent case in ]Srew York it was held that a marriage would be annulled where the consent of a yoi^ng woman was obtained by a representation by defendant that he was honest and in- dustrious, wlien in fact he was a professional thief; and was at the time of the suit in prison for crime.* The doctrine announced in this case is that a misrepresentation as to character is a material fraud, if in fact it was sufficient to induce the consent of the weaker party, and whether the misrepresentation had this effect or not is a question of fact. It is believed that this doctrine is sound, and is in conformity with well-established principles of equity. A husband sought to have his marriage annulled because he discovered, some 1 Wier V. Still, 31 la. 107 (1870). not directed to the element of non- 2 Mr. Bishop criticises this case consummation, and the case went as one "in which the distinction against her on the ordinary rea- between marriage consummated soning, as applied to marriage con- and not consummated would have summated. The books of reports, been important, but it was not sug- as to other subjects, are full of gested by counsel, and it did not cases like this, which are regarded occur to the unaided thoughts of not otherwise than as if the un- the judges. Thus, before the Iowa thought of fact did not exist." 1 court, there was a case of gross Bishop, Mar., Sep. & Div., § 463. fraud, such as would have annulled ^See criticism in Bigelow on any other contract, wherein the Fraud, p. 93. woman took alarm before copula. * Keyes v. Keyes, 6 Misc. 355, 26 But the attention of the court was N. Y. Supp. 910. % 613.] FSAXTD, EEEOE AND DUEESS. 583 ^tx years after the marriage, that his wife was a klepto- maniac, and this fact had been known and concealed from him by herself and relatives ; and that the concealment of such fact was such a fraud as would render the marriage voidable. The court found the facts did not warrant relief, as the fact concealed was a mere personal trait and not an essential incapacity to enter the marriage relation.^ It is held that where a woman has made careful inquiry before marriage concerning the character of her husband and was assured of his good character by himself and others, she may have the marriage annulled for fraud, on discover- ing that he was, at the time of the marriage, a criminal and gambler.^ The parties had lived together for several months before the fraud was discovered, but the marriage had resulted in the birth of a child or the result might have been otherwise. The early decisions seem to have held strictly to the rule that a party must make careful inquiry before entering into the marriage relation, and that no fraud discovered after marriage would be sufficient cause for an- nulment if the marriage had been consummated ; but the tendency of the recent decisions is towards the more equi- table rule that in marriage, as in contracts, the conduct of the defrauded party before discovery of the fraud wiU not con- stitute an affirmance by waiver of the fraud. § 613. Fraud in obtaining license — False ceremony. — It is held that where a marriage license is procured by falsely swearing that the parties are of age, when in fact one is not, or obtaining a license by forgery, is a fraud suf- ficient to vitiate the marriage.' But aside from the fraud such cases may be based on other reasons equally satisfac- tory, such as lack of consent or non-age. It may be weU to observe that a consummation of the marriage with knowl- edge of the fraud will render the marriage valid. Although there was fraud iu procuring the license, if the woman was 1 Lewis V. Lewis, 44 Minn. 134, 46 ' Lyndon v. Ljrndon, 69 111. 43 ; JSr. W. 333. Eobertson v. Cole, 13 Tex. 356. 2 King V. Brewer, 8 Misc. 597. 584 FRAUD, EEEOK AND DUEESS. [§§ 614, 615. able to understand the nature of her actions and was not laboring under duress, the marriage is valid.^ Where a woman was persuaded by false representations- to believe that a valid license had been obtained, and that a person was a regularly ordained minister of the gospel, Avhen in fact he was not, and the ceremony was illegal, it was held that such marriage was not void but voidable ; and since the woman believed the proceedings valid at the time,, and the parties lived together after discovery of the fraud,, the marriage was now valid.^ § 614. Misrepresentation of age. — Ordinarily, one who,, by false representations, induces another to marry, is es- topped by his own fraud and cannot maintain an action tO' annul the marriage. But where a minor fraudulently rep- resents himself to be of the age of consent and thus induces a woman to marry him, he is not estopped by this fraud in an action to annul the marriage on the ground that he was. in fact under the age of consent. It is held that an infant incapable, for want of age, to enter into a valid contract of marriage is also incapable to estop himself by fraudulent declarations.' § 615. The evidence of fraud. — Eraud is diificult to de- fine, and yet the question whether deception was practiced' and relied upon is seldom difficult when all the circumstances- of each case are considered. And in these cases where preg- nancy is concealed, or the woman falsely represents the pa- ternity of the child, the right to annul the marriage should be based upon the circumstances pecuhar to each case rather than upon rigid rules and wise maxims generally inapplicable and often blindly applied. The motives of the parties, the fact that the pregnancy is known to the wife, and her efforts to- fasten its parentage upon the most responsible and desirable of her paramours, the man's motives in marrying, the dura- 1 Crane v. Crane, 1891 Probate, 2 Farley v. Farley, 94 Ala. 501, 10' 367; Field's Mar. Annulling Bill, 3 So. 646. H. L. Cas. 48. 3 Eliot v. Eliot, 77 Wis. 634, 51 N. W. 81. § 615.] FRATID, EEEOE AND DtTEESS. 585 tion of the marriage before the child is born, and the subse- quent conduct of both parties, should all be considered. The case should not be summarily dismissed by a general rule that a man who marries a \foman whom he knows to be unchaste is bound to acknowledge any child she may bear him.' The deception must be judged by its results. The ques- tion is not whether such fraud would have deceived an or- dinary man or woman, but whether, under the circumstances, the person was deceived. A fraud easily detected by one of mature and discreet mind may yet have misled a party not possessing ordinary mental powers by reason of youth, old age or mental weakness.^ A girl of fifteen, while absent from home, was induced to marry a laborer who had been employed on her father's farm. She at first refused because she was too young and did not have the consent of her par- ents. He overcame her objections by the false representa- tions that her parents knew of his intentions and would not care or object ; that her father had promised him one of his- farms and one of his daughters if he would work for him, for four years ; and that, if she was too young, she might keep the ceremony a secret and continue to attend school and reside with her parents. These false representations related to the essence of the contract and were held suffi- cient to uphold a judgment declaring the marriage contract void.' A clear case must be made to overcome the presumption that a child bom during marriage is legitimate. Where the- birth occurs so soon after the marriage that the man must have had some notice of the pregnancy, the presumption is^ 1 As is laid down in Foss v. Foss, Ferg. Const. Law, 37 ; Field, Mar- 94 Mass. 26. riage Annulling Bill, 2 H. L. Cas, 2 Robertson v. Cole, 12 Tex. 356; 48. Lyndon v. Lyndon, 69 111. 43; Gil- a Moot v. Moot, 37 Hun, 288, cit- lett V. Gillett, 78 Mich. 184, 43 N. W. ing Robertson v. Cowdry, 2 West- 1101; Portsmouth v. Portsmouth, ern Law J. 191, and Hull v. Hull, 5- 1 Hag. Eo. 355; Harford v. Morris, Eng. L. & Eq. 589. 2 Hag. Con. 423; Allen v. Young, 586 FBAITD, EEEOE AND DUEESS. [§ 610. almost conclusive that lie knew of her condition and would not have married the woman unless he had sinned with her. On the contrary, if the parties became acquainted but a short time before the marriage, and had no opportunity for intercourse during the period of conception, or if the woman's reputation was bad, the presuniption can be easily overcome.' The knowledge of the situation of the parties constitutes the ground of the presumption.^ If the pregnancy was concealed before marriage, no inference that the man is father of the child can be drawn from the fact that he married the woman. It is clear that the action to annul the marriage •should be dismissed where it does not appear by clear and satisfactory evidence that the man is not the father of the child, since this must appear before the question of fraud becomes material.' Where the parties associated together a year before the marriage, and were engaged during a por- tion of that time, and there was no evidence of improper intimacy with other m.en, the inference that the husband is the father of the child born three and one-half months after the marriage is not overcome but is rather strength- ened by such circumstances.* §616. Error or mistake. — If a party is deceived and marries a person believing that person to be another, the marriage is void.* It is improbable that such cases will 1 For method, of proving the non- reality the girl he married was access, see Page v. Denison, 1 Grant without fortune. He repudiated 598. INSANITY AND MENTAL INGAPACITT. [§ 651. sion, and it was held that a person who is affected by mono- mania, although sensible or prudent on other subjects, is not in law capable of making a wHL' The doctrine of the "Waring case is no longer accepted in England. In 18Y9 it waSi said : " A few years ago it was generally considered that, if a man's mind was unsound in one particular, the mind being one and indivisible, his mind was altogether un- sound, and therefore that he could not be held capable of performing rationally such an act as the making of a will. A different doctrine subsequently prevailed, and this I pro- pose to enunciate for your guidance. It is this : If the de- lusions could not reasonably be convinced to have had any- thing to do with the deceased's power of considering the claims of his relations upon him and the manner in which he acted, then the presence of a particular delusion would not incapacitate him from making a will." ^ The doctrine of the Waring case does not seem to have found much favor in American courts and has been expressly repudiated.' §654. The test of business ability. — In the iirst decis- ions on questions of insanity the law was contradictory and not yevy satisfactory to any reasonable doctrine. The nat- ure of mental phenomena and diseases was not well settled, although it was beginning to be believed that some forms of insanity would yield to medical treatment. The presence of insanity was taken as proof that the whole mind was dis- ordered, and therefore it was held that if a party could enter into a contract, or care for his estate, he had capacity to enter into any kind of agreement.^ And at one time the 1 Smith V. Tebbetts, 1 P. & D, ' 2 Smee v. Smee, 5 P. D. 84 See, 398. Some dicta to the same effect also, Jenkins v. Morris, 14 Ch. D. appear in McDonald v. McDonald, 674; BanksuGoodfellow,5 Q.B.549. 14 Grant's Ch. 545; Cook v. Parker, 3 Dennett v. Dennett, 44 N. H. 4 Phil. 263; Vensell u Chancellor, 531; Boardman v. Woodman, 47 5 Whart. 371. But see McDonald N. H. 120; Frazer v. Jennison, 43 V. McDonald, 16 Grant's Ch. 37; Mich. 206; Benoist v. Mmrin, 58 Beals V. See, 10 Pa. St. 56; Lan- Mo. 304; Denson u Beasley, 34Tex. caster Co. Bank v. Moore, 78 Pa. 191. St 407. i In Browning v. Eeane, 3 Phillim. § 654.] INSANITY AND MENTAL INCAPAOITY. 599 American authorities were uniform that the true test of in- sanity in this kind of action was the ability to enter into a contract or transact business.' This is Avhat may be called a general test, and proceeds upon the unsound presumption that the ability required to make one contract is suificient for all contracts. This test ignores the fact that different faculties and degrees of mental power are required in mak- ing the dift'erent kinds of contracts. It was once thought that ability to make a contract was suificient, since a less capacity was required to contract marriage.^ In an English case an opposite view is taken, and it is said that " if any contract more than another is capable of being invalidated on the. ground of the insanity of either of the contracting parties^ it should be the contract of marriage, — an act by which the parties bind their property and their persons for the rest of their lives." ' Such comparisons are not pertinent. The law aims to find the ability of the party to make the particular contract at the time it was entered into. It tries by a special test for each case to discover whether the alleged insane is such in respect to the particular question which is being investi- gated. A monomaniac may be unsound in one respect and 69, Sir John NiohoU held that "if Cole, 5 Sneed, 57; Middleborough the incapacity be such that the v. Rochester, 13 Mass. 363; Page on party is incapable of understand- Divorce, 193; Atkinson u Medford, ing the nature of the conduct it- 46 Me. 510; Foster v. Means, 1 self, and incapable from mental Speer (N. C), 569. imbecility to take care of his or ^Ex parte Glen, 4 Des. 546. In her own person and property, such this case it was said that " there an individual cannot dispose of his may possibly be so much imbeoil- or her person and property by the ity as to render her incapable of matrimonial contract any more making contracts which would than by any other contract." And bind her estate, but this imbecility Lord Stowell held that it must be does not appear to exist in so great something that affects a party's a degree as to incapacitate her " general fitness to be trusted with from contracting marriage, which the management of himself and seems to be the chief object of the his own concerns." Turner t;. Mey- petitioner." ers, 1 Hag. Con. 414. ' Lord Penzance in Hancock v. 1 Anonymous, 4 Pick. 33; Cole v. Peaty, 1 P. & M. 335. 600 INSANITY AND MENTAL INCAPACITY. [§ 658. not in all others. He may have " mental competency to make one contract and not another." ^ The test of business abihty is not, therefore, a correct test of ability to enter into the marriage contract. § 658. Ability to understand the nature of the mar- riage contract. — In a suit to annul a marriage on the ground that one of the parties was insane and therefore incapable of consenting to the marriage, different tests of insanity have been applied. FBut the most reasonable test is believed to be the ability to understand the nature of the marriage contract and not the ability to enter into ordinary contracts or to make a willil So various are the forms and degrees of mental unsoundness that the party may be able to act intelhgently in one transaction and be utterly unable to understand the nature of another transaction. It is imprac- tical to apply the same tests to actions which require differ- ent powers of mind. The law recognizes the fact that there may be derangements of mind as to particular subjects, and yet capacity to act on other si^bjeots. Proof of insanity does not estaiblish incapacity in every respect. In order to invalidate a man's act it must' be shown that the insanity was such as to prevent rational thought and reasonable judg- ment in regard to the very act in controversj''. Monomania does not pervert aU the faculties of the mind. A person subject to an insane delusion is not incompetent to make a will, unless such delusion is one affecting and incapacitating him as a testator. The deed of a monomaniac is valid when his monomania did not affect his business capacity in this respect. And so with the marriage contract; the alleged insane person may be able to understand the nature of such contract and to give intelligent consent to it, and yet be in- capable of criminal intent or without ability to transact business. Therefore the true test, in actions to annul a mar- riage on account of insanity at the time of the marriage, is whether the party was capable of understanding the respon- iSt. George v. Biddleford, 76 Me. 593. § 659.] INSANITY AND MENTAL INOAPACITT. 601 sibilities assumed by marriage. This test is applied in all the / recent and well considered cases, both English and American.* I § 659. To what extent must the nature of the mar- riage contract be understood. — We have seen that the test of mental capacity to enter the marital relation is the ability to vm,derstand the nature of the marriage contract. This ex- pression needs some further explanation. It certainly does not require the contracting parties to comprehend all the complications of property rights which may follow marriage, for such test would require a legal education. And for the same reason the parties need not be able to enumerate the causes for dissolution of the marriage which they are about to enter, or the laws of nature concerning, the procreation of children, and the probability of the children of the marriage being subject to hereditary insanity. Nor need there be any ability to apprehend any other consequences of mar- riage which require special knowledge or even a common education. For the most illiterate person, even a savage, can have the required understanding. The question then arises, what understanding is required? It is not possible that any satisfactory formula can be given that will contain the few essentials absolutely required. In the law of wills the mental capacity has been thus described: " A person of sound mind, within the meaning of the law in this case, is one who has full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposi- tion he desires to make of it, and of the persons he desires shall be the recipients of his bounty, and the capacity to recoUect and comprehend the nature of the claims of those who are excluded from participating in his bounty ; but it is not necessary that he should have sufficient capacity to make contracts and do business generally, nor to engage in com- iKem V. Kern (N. J. Eq.), 26 A. ford, 76 Me. 593; Cannon uSmalley, 837; Lewis v. Lewis, 44 Minn. 124, 10 P. D. 96;. Hunter v. Edney, 10 46 N. W. 323; Durham v. Durham, P. D. 93. 10 P. D. 80; St. George u Biddle- 602 INSANITY AND MENTAL INCAPACITY. [§ 660. plex and intricate business matters." ' This was given as an instruction to a jury and held correct on appeal. It seems to be a fair enumeration of the mental powers that should be required of a testator. A similar definition of the mental capacity to contract marriage has been thought impractical and unwise.^ It is simply a difficult, but not impossible, task, to enumerate the essentials of the marriage contract that must be understood before a valid marriage can be en- tered into. A person understands the nature of the marriage contract who knows that marriage is an agreetnent between a man and a woman to love each other, to live together as husband and wife, in mutual dependence, for life, unless grave causes justify their divorce. 'No person can under- stand the nature of the marriage contract unless he or she is rational enough to know the other party and is able to contemplate marriage with such other, to entertain some affection for the other, and to desire a union for life. These simple requirements are to be taken into consideration with the knowledge of the incapable party of his surroundings, his financial ability and other facts. § 660. Insane delnsion. — We have seen that mere mental unsoundness does not invalidate the act of the party, or render him incapable in law of doing any valid act. It is now weU established that one possessed of an insane delu- sion may be capable of transacting business, the subject- matter of which is not within the scope of his peculiar de- rangement.' It now remains to inquire into the nature and 1 Meeker v. Meeker, 74 la. 353, ments of mutual esteem, attaoh- 37 N. W. 773, citing Bates v. Bates, ment and affection, which the 27 la. 110; Will of Convey, 52 la. weakest may feel as well as the 197. strongest intellects, than on the 2 In Elzey v. Elzey, 1 Houst. 308, exercise of a clear, unclouded rea- it is said: "It would be dangerous, son, or sound judgment, or intelli- perhaps, as well as difficult, to pre- gent discernment and discrimina- sci-ibe the precise degree of mental tion, and in which it diilers in a vigor, soundness and capacity es- very important respect from all sential to the validity of such an other civil contracts." engagement: which, after all, in !^Smee v. Smee, 5 P. D. 84 many cases depends more on senti- § 660.] INSANITY AND MENTAL INCAPACITY. 603 effect of insane delusions. A delusion is a spontaneous con- ception of the mind which has no existence except in the imagination, and which the party believes against all evi- dence to the contrary. In a modern case the delusions were a constant and unreasonable fear of personal violence; a belief that the party had certain diseases, and a conception that he could see inside of the bodies of others.^ The first two delusions were thought to be too common among in- telligent persons to be any indication of diseased intellect, and the last delusion, while evidence of great mental weak- ness or disease, was not of such a nature as to preclude a proper understanding of the contract of marriage.^ It is not probable that a belief in modern spiritualism would indicate an incapacity to understand the responsibilities of the mar- riage relation. It is not considered evidence of mental unsound- ness.^ Kleptomania, or a morbid propensity to steal, whether a form of mental weakness or a disease, is not such mental unsoundness as to render the party incapable of assenting to the contract of marriage.^ The special test in all classes of insane delusion or monomania is now held to be this : Did the person whose act is questioned possess suificient ability to understand the transaction in a reasonable manner? If so, the act is valid.^ If a will is the direct offspring of the iKern v. Kern (N. J. Eq.), 26 A. Phila. 344; Lee v. Lee, 2 McCord, 837. 183; Johnson v. Johnson, 10 Ind. 2 Id. 387; Woodbury v. Obear, 7 Gray, 3 Cent. Ins. Co. v. Depeuch, 82 Pa. 467. Nor will peculiar views as to 225; Middleditoh u Williams, 45 N. the state of future existence, for J. Eq. 736; La Bau v. Vanderbilt, 3 this is a question not of accurate Eedf. (N. Y.) 384; Matter of Keeler, knowledge, but of faith. Austin 12 N. Y. St. Rep; 148. v. Graham, 1 Spinks,357; Bonard's i Lewis V. Lewis, 44 Minn. 124, 46 Will, 16 Abb. Pr. (N. S.) 128; Weir's N. W. 323. The belief in witch- Will, 9 Dana, 434; Gass v. Gass, 3 craft wiU not render a testator Humph. 278; Denson v. Beasley, incompetent. Kelly v. Miller, 39 34 Tex. 191. Miss. 17; Van Guysling v. Van sDavern r. White, 43 N. J. Eq. Kuren, 35 N. Y. 70; Addington v. 569, 7 A. 683; Eaton v. Eaton, 37 Wilson, 5 Ind. 137; Matter of Ved- N. J. L. 108; Blakeley v. Blakeley, der, 6 Dem. 93; Leech v. Leech, 1 33 N. J. Eq. 502. 604 INSANITY AND MENTAL INCAPACITY. [§§ 661, 662. partial insanity or monomania under which the testator is laboring, it is invalid, although he may have been sane as to all other subjects.^ In conformity to these rulings, the spe- cial test of insanity, in actions where the validity of the mar- riage is tested, is whether the party was capable at the time of understanding, in a reasonable manner, the nature of the marriage contract ; or whe'ther the insane delusion was such as to cloud the mind with reference to such contract.^ § 661. Lucid interval. — Any contract entered into dur- ing a lucid interval was not voidable at common law or the civil law, although the party may have been insaiie before and after such interval.' And this is true of the marriage contract.* If the insanity is temporary and in the incipient stage, the marriage will be presuined to have taken place during a lucid interval, and insanity at the time of marriage must be proved.' But a permanent form of insanity once shown is presumed to continue, and if the proof shows that the derangement was present after the marriage, the inca- pacity will be presumed, and the burden shifts upon the other party to prove that the celebration occurred during the lucid interval. "' § 663. Hereditary insanity. — The fact that other mem- bers of the family of the alleged insane had been of unsound mind was at one time considered inadmissible in either civil or criminal cases.^ But science having shown how material such fact may be in investigating the nature and extent of insanity, our courts have abandoned that rule of evidence iRedfleld on Wills; Denson. v. * Turner i;. Meyers, 1 Hag. Con. Beasley, 34 Tex. 191 ; Middleditch 414. u Williams, 45 N.J. Eq. 736; Town- « Smith v. Smith, 47 Miss. 311; send u Townsend, 7 Gill, 10; Smith Scott v. Paquet, 17 Lower Can. V. Smith (N. J. Eq.), 35 A. 11; Jen- Rep. 383; Goodheart v. Ransley, 38 kins V. Morris, 14 Ch. Div. 674: Weekly Law Bui. 337. Blakeley's Will, 48 Wis. 394, 4 N. « Meeker v. Meeker, 75 111. 360 W. 837. Contra, Waring v. War- McAdam v. Walker, 1 Dow. 148 ing, 6 Moore P. C. 341. Hugan v. 8., 5 Baxter. (Tenn.), 615 2Slais V. Slais, 9 Mo. Ap. 96. Doe v. Whitefoot, 8 C. & P. 370. 3 Bush well on Insanity, 848, , §§ 663, 664.] INSANITY AND MENTAL INCAPACITY. 605 as unphilosophical and unsound, and now hold that evidence of insanity of either parent, or even of a remote ancestor, is competent upon the issue of insanity.* The usual method of introducing such evidence is to first show the presence of symptoms of insanity, and then the insanity of the ancestor becomes admissible. This question is not discussed in the reports of actions to annul marriages on the ground of in- sanity ; such evidence seems to have been admitted in most of the cases without objection. Such fact is considered by the courts as a minor fact tending to establish insanity, and as not entitled to any great weight, since a party may have congenital insanity and yet be perfectly lucid for years at a time. The mere presence of the taint of hereditary insanity which is manifested by occasional paroxysms is not a cause, for annulling the marriage.^ § 663. Other forms of mental incapacity. — No aid can be derived from a discussion of the various forms of mental unsoundness, weakness or disease. The same special test should be applied to all the various shades of derangement, namely, the ability to understand the nature and conse- quences of entering the marital relation.' § 664. Marriage while drunk. — The test applied in cases of alleged insanity at marriage should be applied to that mental state called intoxication. A marriage celebrated while the party is intoxicated to the extent of great mental disturbance is not voidable unless the party was incapable of knowing the nature of the marriage contract and that he was 'People v. Garbutt, 17 Mich. 10; v. Reane, 3 Phillim. 69; Birdsong People V. Smith, 31 CaL 466; Brad- v. Birdsong, 2 Head, 289; Car^ ley u S., 31 Ind.492; Lurosv. Com., wright v. Cartwright, 1 Phillim. 84 Pa. 200. 80; Johnson v. Kincade, 2 Ired. Eq. 2 Smith V. Smith, 47 Miss. 311; 470. Ackley v. Stephens, 8 Ind. 411 ; As to ability of deaf and dumb Hamaker v. Hamaker, 18 111. 137. to understand nature of contracts, 3 Doe V. Roe, 1 Edm. Sel. Cas. see Dickenson v. Blisset, 1 Dick. (N. Y.) 344; In re Vanauken, 10 268 (1754); Harrod v. Hariod, 1 N. J. Eq. 186; Smith v. Smith, 47 Kay & J. 4; Brower v, Fisher, 4 Miss. 311; Portsmouth v. Ports- Johns, Ch. 441. mouth, 1 Hag. Ec. 355; Browning 606 INSANITY AND MENTAL' INCAPACITY. [§ 665. performing the ceremony.' ^ The proof of mental incapacity should be clear to invalidate a marriage where a party has deliberately planned the occasion, made all necessary prepara- tions for it, and in other ways showed a determination to bring about the marriage which he now seeks to avoid. No case is reported where such marriage was declared void. Other elements, such as fraud, conspiracy or mental weak- ness, must be shown in such case. Some assistance may be derived from an examination of cases where the validity of wills and contracts has been contested on the ground of mental incapacity arising from drunkenness or delirium tremens, but it should be borne in mind that the ability to enter into a contract or make a will is not an exact test of the ability to understand the nature of the marriage con- tract.^ Thus a marriage is valid where the husband is suf- fering from attacks of delirium tremens, if the marriage took place during a lucid interval, and the alleged incompe- tent party was able to discuss and arrange the terms of a marriage agreement.' § 665. Suicide. — The mere fact of self-destruction raises no presumption of insanity.* A person may commit suicide and be rational as to everything else. The act itself is not inconsistent with the idea of a sound mind. The act occur- ring shortly after the marriage in question is, of course, ad- lElzey V. Elzey, 1 Houst. (Del.) dal, Wright, 507; Cummings v. 308; Roblin v. Roblin, 28 Grant Henry, 10 Ind. 109. (U. Canada), 439; Clement v. Matte- ^gcott v. Paquet, 17 Lower Can., son, 3 Rich. Law (S. C), 98; John- Rep. 283. son V. Brown, 2 Scotch Sess. Cas. < Jones v. Gorham (Ky.), 14 S. W. 437; MoCreery v. Barcalow, 6 Ohio 599; MoElwee v. Ferguson, 43 Md. Cr. Ct. R. 481. 179; Germain v. Brooklyn L. Ins. 2 Dixon V. Dixon, 22 N. J. Eq. 91; Co., 26 Hun, 604; Duffleld v. Mor- Menkins v. Lightner, 18 III. 282; ris' Ex'r, 2 Har. (Del.) 375; Brooks Jenness v. Howard, 6 Blackf. (Ind.) v. Barrett, 7 Pick. 94; McAdams v/ 940; Wheeler v. Alderson, 3 Hag. Walker, 1 Dow. 148; Merritt u Ins. Ec. 574; Sill v. JIcKnight, 7 Watts Co., 55 Ga. 103; Terry v. Ins. Co., 1 & S. (Pa.) 244; Hutchinson v. Tind- Dillon C. C. 403; Pettitt v. Pettitt, all, 3 N. J. Eq. 357; Clifton v. Davis, 4 Humph. 191; Crum v. Thornley, 1 Parsons (Pa.), 31; Woods v. Pin- 47 IlL 192. §§ 666, 667.] INSANITY AND MENTAL INCAPACITY. 607 missible in connection with other facts, but it does not alone create a presumption of insanity, although such act may be contrary to reason, education and natural instincts of self- preservation. § 666. Burden of proof and presumptions.— The burden of proof is always upon the party who attacks the validity of a marriage, for he must overcome a strong presumption that such marriage is legal and valid. Such presumption is one of necessity as well as of a sound public policy that protects the parties, their children and property from the evils which will result in declaring a marriage invalid. Mental capacity is also presumed, and the burden of proof is also on the party who seeks to avoid the marriage on the ground of in- sanity, so that there is a union of presumptions to overcome. There is another presumption, common to every department of law, that a condition or situation of things once shown is presumed to continue until the contrary appears. The pre- sumption of continued insanity is weak where the alleged incompetent party was adjudged insane at a time remote from the time of marriage. If found insane shortly before the marriage, the presumption of continued insanity is suffi- cient, in the absence of rebuttal, to justify a finding that a party was insane at the time of the marriage. But if such person was adjudged insane three years before the marriage, the fact is too remote to create a presumption of continued insanity sufficient to overcome the two presumptions of va- lidity of marriage and the mental capacity of the parties.' § 667. Effect of previous finding of insanity by inquisi- tion. — The finding of a commission of lunacy is always ad- missible where such finding is not too remote. It is not, however, conclusive that the party was insane at the time ■ of the marriage. But such finding is competent evidence of the fact, and is such jprimM facie proof as to raise the pre- sumption that the party was insane and continued to be while the commission continued.^ The party will be pre- 1 Castor V. Davis, 120 Ind. 231. 837; Portsmouth v. Portsmouth, 1 2 Kern v. Kern (N. J. Eq.), 26 A. Hagg. 355; Keys v. Norris, 6 Kieh. 608 INSANITY AND MENTAL INCAPACITY. [§ 667. sumed to be insane if the act in question occurred subse- quently to the finding of the commission, or so nearly an- tecedent as to have been embraced in the inquiry of the commission.' The finding would, of course, affect the valid- ity of a will which was executed during the time covered by the inquisition.^ The finding is not conclusive upon the party because of its ex parte nature, and may be rebutted or avoided by proof that the party was always of sound mind, or had been insane but had recovered, or that the party, although often insane, acted during a lucid interval.' The fact that a commission has found a party incapable of transacting the ordinary affairs of life may not always de- termine the party's capacity to enter into the status and relation of marriage.* For a party may have an insane delusion which would be dangerous to others and justify his confinement in an asylum, and yet be capable of understand- ing the nature and effect of marriage ; as where he has a delusion or fear of personal attack and carries arms for self- defense.' Eq. 388; Banker u Banker, 63 N. Y. Smith, 6 Ir. Eep. Eq. 429; Hume 409; Hunt v. Hunt, 13 N. J. Eq. 161; v. Burton, Ridgway, 204; Gibson v. Yaugert;. Skinner, 14 N.J. Eq. 389; Soper, 6 Gray, 279; Titlow v. Tit- Hill V. Day, 84 N. J. Eq. 150; Mott low, 40 Pa. St. 483; Field v. Lucas, V. Mott, 49 N. J. Eq. 192, 22 A. 21 Ga. 447; Stevens v. Stevens, 127 997; Little v. Little, 13 Gray, 264: Ind. 560, 26 N.E. 1078; Middleditch Crowninshield v. Crowninshield, 2 v. Williams, 45 N. J. Eq. 726, 17 A. Gray, 524. See, also, Buswell on 826. See, also. Stone v. Damon, 13 Insanity (1885), 216, citing Serge- Mass. 488; Breed u Pratt, 18 Pick, son V. Sealy, 3 Atk. 412; Faxllderu. 115. Silk, 3 Camp. (N. P.) 126; Cooke v. i Banker v. Banker, 63 N. Y. 409. Turner, 15 Sim. 611 ; Van Dusen 2 Hughes v. Hughes, 3 Mun. 209. V. Sweet, 51 N. Y. 378; Shumway springep v. Dyce, 10 Moo. P. C. V. Shumway, 2 Vt. 339; Rippy v. 232; Titlow v. Titlow, 40 Pa. St, Gant, 4 Ired. 448; Christmas v. 483; Rider v. Miller, 86 N. Y. 507; Mitchell, 3 Ired. Eq. 585; Arm- Cook u Cook, 53 Barb. 180. strong u Short, 1 Hawks,. 11; Wil- ^Garnett v. Garnett, 114 Mass. lis V. Willis, 13 Pa. St. 159; Gang- 879. were's Estate, 14 Pa. St 417; Lucas 'Kern v. Kern (N. J. Eq.), 26 A. V. Parsons, 23 Ga, 267; Hassard v. 837. §§ 668, 669.] INSANITY AND MENTAL INCAPACITY. 609 § 668. Conduct at marriage ceremony. — It is said that " the fact of a party's being able to go through the mar- riage ceremony with propriety is prima facie evidence of sufficient understanding to make the contract." ' This might be true where there is no proof of insanity before the mar- riage. Eut where there is some evidence of insanity, the fact that the party knew the ceremony was being performed and acted with propriety is not entitled to much weight, for the insane may appear rational at times.^ They may be able to take part in a mere ceremony without being able to understand the nature of the marriage contract.' The evi- dence is not restricted to the conduct of the party at the time of the marriage, but evidence of the mental condition of the party both before and after the ceremony is admis- sible.* § 669. Deliberate preparations for marriage. — There can be no better proof of sanity at the time of marriage than that the party made deliberate preparations for the marriage and for the support of his Avife, and was able to execute his plans until the ceremony was performed. Such forethought is direct proof that he understood the nature and responsibility of the marriage relation and intelligently arranged his affairs accordingly. A marriage is therefore valid where the husband, though of weak intellect, and at times unable to express himself coherently, has mind enough to successfully manage his own estate, to purchase a house and furniture, to manage his engagement with some skill, to talk intelligently to the minister, to conduct himself with propriety during the ceremony, and to avail himself of his marital rights.* 1 Anon., 4 Pick. 33. Lee, 383 (1757), where a marriage ^Smithi;. Smith, 47 Miss. 311. was declared valid although the s Browning v. Eeane, 3 Phillim. husband had a " weak understand- 69. ing from his infancy, and by hard * Nonnemacher v. Nonnemacher, drinking was at times lunatic, and 159 Pa. 634» did many mad and frantic acts, but 5 Kern v. Kern (N. J. Eq.), 36 A. no commission of lunacy was taken 637. See, also, Parker v. Parker, 3 out, nor was he constantly mad, 39 610 INSANITY AND MENTAL INCAPACITT. [§ 670, § 670. Affirming marriage. — Although a marriage is voidable on account of the incapacity to consent while in- toxicated, yet the party may consummate the marriage upon recovering from intoxication, and if he does so, such mar- riage is valid without a second ceremony.' And it is not disputed that a party who was insane at the time of mar- riage may, upon becoming sane, have the marriage declared void if no consummation has taken place.^ Eut the author- ities are not agreed as to the eileot of a marriage of an in- sane person. It may be inferred from the expressions found in the early writers on common law that they considered such marriage absolutely void, and that " acquiescence, long cohabitation and issue, or the desire of the parties to adhere, cannot amend the original defect." ' Nearly aU of the older decisions assume that the marriage of an insane person is a mere nullity, incapable of rattfica- but only by fits." It appeared that he had no attacks of insanity about the time of the marriage, that he procured and paid for his license, and married with previous deliber- ation and intention. 1 Roblin V. Roblin, 38 Grant.(U. C), 439. ^Wightman v. "Wightman, 4 Johns. Ch. 343. ■Toynter on Marriage and Di- vorce, 157. See, also. Brae. Abr., "Idiots and Lunatics; " Smart v. Taylor, 9 Mod. 98; Ex parte Tui'ing, 1 Ves. & B. 140; Co. Litt. 33a. See statement of common law of this subject in Wiser v. Lockwood, 42 Vt. 730. The f oUowing dicta have been criticised as holding that such marriage could not be affirmed (see 1 Bishop, Mar., Sep. & Div., § 616), but it seems that the court ex- pressly avoids such holding. "In a case of alleged insanity at the time of marriage, subsequent ac- quiescence, during long or frequent periods of undoubtedly restored reason, would be cogent proof of competent understanding at the time of the marriage; but assum- ing lunacy to then have existed, the rule of the author quoted seems to be sustained by the considera- tion that marriage is a peculiar contract, to be celebrated with prescribed ceremonies, and there- fore subsequent acts, not amount- ing in themselves to a marriage, will not make that good which was bad in the beginning. But we do not propose to lay down such a rule in this ease, for we are clearly of opinion that a,t no timie since this^ marriage has this person been so in possession of her faculties as to be capable of judging her rights or interests, or of making or con- firming a contract." Crump v. Morgan, 3 Ired. Eq. (N. C.) 91, 40- Am. D. 447 (1848). § 671.] INSANITY AND MEKTAL INCArACITY. 611 tion.^ But the better doctrine is believed to be that one Avho marries while insane may, when restored to reason, affirm the marriage by giving consent to what has been done, or by acquiescence or long cohabitation, and that such marriage, when thus affirmed, does not require a new celebra- tion.^ This doctrine is in conformity with the law of ratifi- cation by subsequent consent where the party was at the time of marriage incapable of giving a valid consent on ac- count of want of age, fraud, error or duress.^ For when the fraud or mistake is discovered, the duress escaped, or the age of consent is attained, the party may treat the mar- riage ceremony as valid, and thus ratify what has been done. The consent and the marriage ceremony need not be simul- taneous. To hold the marriage of the insane to be void although there has been an affirmance would open the way for fraud, and cause marriages to be contested where there was some doubt of the sanity of the party. After a long cohabitation, when children are born, titles conveyed, prop- erty acquired and credit obtained, every consideration of public policy demands that a marriage so long affirmed should not be annulled, children declared illegitimate, titles disturbed, and securities declared void, because the ceremony of marriage and the consent to it were not simultaneous. § 671. How marriage disaffirmed. — The marriage of an insane person is a mere nullity unless affirmed after reason is restored. If the insane person dies before reason is re- ' Portsmouth v. Portsmouth, 1 569; Clement v. Mattison, 3 Rich. Hagg. Ec. 355; Browning r. Eeane, 93. 2 Phillim. 69; Rawdon v. Rawdon, 2 Cole v. Cole, 5 Sneed (Tenn.), 57 3S Ala. 565; Powell u Powell, 18 (1857), citing Bishop, M. & Di v., sec. Kan. 371; Jenkins v. Jenkins, 3 189; AUis u Billings, 47 Mass. 415; Dana, 103; Fornshill v. Murray, 1 Wightman v. Wightman, 4 Johns. Bland, 479; Middleborough r. Roch- Ch. 343. See, also, Brown v. West- ester, 13 Mass. 363; Ward v. Du- brook, 27 Ga. 103; Stickney v. laney, 33Miss. 410; Smith t;. Smith, Mather, 24 Hun, 461; Sabalot v. 47 Miss. 211; True v. Ranney, 21 Populus, 31 La. An. 854; Secor v. N. H. 53; Keys v. Keys, 33 N. H. Secor, 1 MacAr. 6^0. 503; Christy v. Clarke, 45 Barb. 3 gchouler, Husb. & Wif e, g 31. 539; Foster v. Means, 1 Speer Eq. 612 INSANITY AND MENTAL INCAPAOITT. [§ 671. stored, or refuses to affirm the marriage after being restored io reason, such marriage is an absolute nullity not changing their status. It is a mere idle ceremony. The invalidity of such marriage may be established in any court and in any proceeding where the question may arise,' between any par- ties, and whether in the life-time or after the death of the supposed husband and wife.^ It is a grievous wrong to all concerned that the validity of a marriage should be open to attack at any time and in any proceeding. But such issues may be avoided, and it is believed that the only just method of preventing investigations after the death of both parties and after property rights are questioned is to obtain a decree of nullity within a reasonable time after the invalid marriage was entered into. It is unwise to prohibit such investigations by an absolute statute, for we have seen that the parties may die before the decree could be obtained, and such statute would be the instrument by which greater wrongs could be inflicted. The true method of avoiding all questions of the validity of the marriage is to determine its validity before a court of competent jurisdiction, before the parties are dead, and while witnesses of the ceremony are living and their testimony can be obtained, while associates and physicians of the alleged insane person can recall to memory the con- 1 In Massachusetts the statute WiUiams, 5 Ired. Law, 487, 44 Am. prohibits such collateral attack by Deo. 49. See note, page 54; Unity declaring that "the validity of a v. Belgrade, 76 Me. 419; Bell u Ben- marriage shall not be questioned nett, 73 Ga. 784; Middleborough v. in the trial of a collateral issue on Rochester, 12 Mass. 363; Jenkins u account of the sanity or idiocy of Jenkins, 2 Dana, 103; Jaques v. Pub- either party, but only in a process lie Adm., 1 Brad. 499; Waymire v. duly instituted in the life-time of Jetmire. 23 O. St. 371 ; Atkinson v. both parties for determining such Medford, 46 Me. 510; Clement validity.'' See Goshen v. Wilhams, v. Mattison, 3 Rich. 93; Johnson v. 4 Allen, 458; Stukey v. Mathes, 34 Kincade, 2 Ired. Eq. 470; Ex parte Hun, 461; Wiser v. Lockwood, 42 Turing, 1 Ves. & B. 140; Foster v. Vt. 720; Brown v. Westbrook, 37 Means, 1 Speer's Eq. 569, 42 Am. Ga. 103. Dec. 332; PoweU v. Powell, 18 Kan. 2Shelf.Mar.&Div.479;Schouler, 371. Husb. & Wife, § 21; Gathing v. § 6T'2.J INSANITY AND MENTAL INCAPAOITT. 613 duct of such person, tending to prove his capacity to under- stand the nature of the marriage contract. Unless such decree is obtained, the question must be determined after the death of the parties, in actions for dower or curtesy,' or to fix the legitimacy of children, or to determine the title to property, and numerous other property rights affecting the heirs and the general public- § 673. Statutes declaring marriage void or voidable. — The question whether the marriage of an insane party is void or voidable, and whether such marriage can be affirmed, is determined in many states by statutory provisions that such marriage shall be void : " Unless after the removal of the disability the parties freely cohabited as husband and wife ; " ' or, " not void in case of lunacy if the lunatic has re- covered reason, and the parties thereafter have freely cohab- ited ; " * or, " after restoration to reason the parties freely cohabited ; " ' or, ^' not voidable if after the restoration of the lunatic to sound mind the parties have freely cohabited as husband and wife." * The l^ew York code declares the marriage of a lunatic " not voidable if the parties cohabit after the lunatic is restored to reason." ' This provision is concise and accurate, and might well be enacted in every state to prevent the perplexing questions which arise where the statutes are ambiguous or silent. In some of the states the statutes declare that the marriage of an incompetent party " shall be void from the time its nullity shall be de- clared by a court of competent jurisdiction." In effect this declares the marriage valid until a decree of nullity has been rendered.' The result of this legislative folly is that, if a raving lunatic marries and dies before the delay of the 1 Jenkins v. Jenkins, 3 Dana, 103 ; « Wyoming. Bell V. Bennett, 73 Ga. 784 'Similar provisions may be found 2 Fomshill v. Murray, 1 Bland's in the statutes of Nevada, Oregon Chu 479 (Jlaryland, 1838). and Vermont. 3 California, North Dakota, South « Wiser v. Lockwood, 43 Vt. 730 ; Dakota, Idaho. Eliot v. Eliot, 77 Wis. 684, 46 N. W. « Michigan. 806; State v. Cone, 86 Wis. 498, 57 5 Nebraska. N. W. 50. 614 INSANITY AND MENTAL INCAPACITY. [§ CT2. law will permit a decree declaring such marriage void, the woman who brought about such marriage will be entitled to the rights of a widow.' This consequence alone would jus- tify the repeal of such provision; but other consequences equally serious might be suggested.^ 1 Wiser v. Lockwood, 42 Vt. 720. 2 Mr. Bishop lias very ably criti- cised this form of statute as " mean- ingless and contradictory to the context, . . . contrary to rea- son, to right, and to established principles of our jurisprudence," . . . permitting the man "to commit a rape on the woman, take away her property, and vests it in him, and brings matrimony into ignominy." He arrives at the con- clusion that such provision "should not be treated as void for repug- nance, but as a mere senseless at- tempt to declare an obvious truth." 1 Mar., Sep. & Div., §§ 636-38. IMPOTENCY. ^ 675. 676. 677. 678. 679. 680. 681. 682. 683. 684 685. «86. «87. •688. '689. 690. In generaL Impotency defined. Physically incapacitated. Matrimonial incapacity. Physically incapable. Must be permanent or in- curable. Forms of impotence. Refusing intercourse. Impotence as a fraud. What will bar the action — Adultery not a bar. Age of parties. Deed of separation not a bar. Eecrimination not a bar. Delay. Insincerity. Estoppel — Impotent party as plaintiff. i 691. Pleading — In general. 693. How impotency alleged. 693. Different forms of impo- tency may be joined. 694. Evidence — In generaL 695. Burden of proof. 696. Triennial cohabitation. 697. Inspection of the person. 698. Power of our courts to com- pel inspection. 699. Power denied. 700. When inspection necessary. 701. Inspection by commission. 702. Personal injury cases. 703. Order for inspection, how enforced. 704. Effect of decree — Whether divorce or annulment. 705. Impotency renders the mar- riage voidable. § 675. In general. — At common law impotence or phys- ical incompetency was cause for annulment of marriage, but in most of our states it is a cause for divorce. Whatever the form of the decree the court is empowered to enter, the law and the evidence are substantially the same. The in- decency of the required evidence and the invasion of the privacy of both parties has deterred many from bringing suit for this cause ; but such considerations cannot obstruct the administration of the law or hinder the averment and proof of the necessary facts. The incapacity of one party is a defect rendering true marriage impossible, an.d defeating the purpose of the marital relation to such an extent that the law wisely relieves both parties from their obligations. 616 IMPOTENCT. [§ 6Y5. But in practice it is advisable to avoid this cause not only on account of the diifioulty of proof, but because other causes for divorce will answer as well. If the cohabitation with an impotent party has proved injurious to the com- plainant's health, or the fraud has caused grievous men- tal suffering, a divorce can be obtained although some of the evidence may tend to establish incurable impotence at the time of the marriage. Or a cause for dissolution will exist if either party deserts the other for the necessary period. Whether the marriage be annulled or dissolved the law has granted a remedy upon the broad ground that the prin- cipal ends of paarriage are copula and procreation. The old writers gave as reasons the design of " having offspring " and " avoiding fornication," "to prevent licentiousness," ' and " the pleasures and enjoyments of matrimony." ^ So the test of impotence is not f ruitfulness or sterility,' it is the ability for copula. Whien this is lacking, sterility gen- erally exists, but not always.* Imperfect copula must be of such a degree as to be unnatural and disgusting to both.* The best interests of society are not advanced by " retain- ing within the marriage bonds parties driven to such dis- gusting practices. Certainly it would not tend to the pre- vention of adulterous intercourse, one of the greatest evils to be avoided." * Jurisdiction to annul a marriage on the ground of impo- tence must be conferred by statute.' In the absence of statute a court of equity will not annul a marriage for a cause which renders it voidable and not void.' A court of equity, if without statutory jurisdiction to annul marriage iDeaneu Aveling, IRob. Eo. 379; 5 Lewis u Hay ward, 4 Swab. & B. V. B., 1 Spinks, 348; Briggs v. T. 115. Morgan, 3 Phillim. 325. 6t)r. Lushington in Deane v. 2 a V. a., 3 P. & M. 287. Aveling, 1 Eob. Ec. 379. See, also, 3 Deane v. Aveling, 1 Rob. Ec. similar Reasons given in Gr. v. G.,. 279. 33 Md. 401. < Bishop, Mar., Sep. & Div., §§ 774^ ^ Anon., 34 N. J. Eq. 19. 775. Hd. §§ 6T6-679.] mpoTENOT. 617 for this cause, will not assume jurisdiction on the ground of fraud.^ § 676. Impotency defined. — Impotency, to be a cause for annulment or dissolution of the marriage, is such incurable physical incapacity of one of the parties as prevents true and natural copulation. The copulation which is referred to is copula vera, not partial, imperfect or unnatutal.^ The incapacity must exist at the time of the marriage.' If it arises subsequent to the marriage the divorce should not be granted, for then the essential element of fraud and imposi- tion is lacking.* The term " naturally impotent " is said to mean incurably impotent, and from natural causes, and not from accident, disease or self -abuse.' §677. Physically incapacitated. — A statute which pro- vides that either party is entitled to a divorce " when the other party was, at the time of the marriage, physically and incurably incapacitated from entering into the marriage state," is held to denote the same physical incapacity as im- potence. The term " impotent " means powerless or wanting in physical power to consummate the marriage.* § 678. Matrimonial incapacity. — Under a statute allow- ing divorce for " matrimonial incapacity at the time of the marriage," the pregnancy of the wife before marriage is held a "matrimonial incapacity," where the husband was not aware of her condition and had no criminal connection with her.'' This is a most liberal interpretation of the term "matrimonial." Matrimonial incapacity would doubtless include all physical incapacities to enter into the marriage relation. § 679. Physically incapable. — The fact that the woman was pregnant at the time of her marriage is not a ground i§683. 5 Griffith V. Griffith, 55 IlL Ap. 2 Payne v. Payne, 46 Minn. 467, 474. 49 N. W. 330. « Anonymous, 89 Ala. 391, 7 So. s PoweU V. Powell, 18 Kan. 371. 100. * Bascomb v. Bascomb, 5 Foster, '' Caton v. Caton, 6 Mackey, 309. 267 (1853), reviewing authorities. ■618 IMPOTENOT. [§ 680. for annulment of marriage imder section 82 of the Civil Code of California, providing for such relief when "either party- was, at the time of the marriage, physically incapable of en- tering into the married state, and such incapacity continues, and appears to be incurable," as this clause includes only such physical defect or incurable disease existing at the time of marriage as will prevent sexual intercourse.' § 680. Must be permanent or incurable.— Generally the courts require some proof that the impotence is permanent or incurable.^ And it was once asserted that, if the defect could be removed without serious danger, it would not be a ground of nullity, though the party refuses to submit to a surgical operation.' The reason assigned was that, if the law were otherwise, a party might, by being impotent or incapable, as she chose, thus affirm or deny the marriage. But this objection requires the impossible of the capable party who is seeking relief,, since he cannot compel the op- eration. Something similar occurs in a case of desertion, as the deserter may return or not, as he chooses; thus, at his own election, rendering the dissolution" of the marriage pos- sible or impossible. It is clear from the authorities that re- lief was not denied the capable party because the impotent would not submit to treatment. Thus, where the marriage had not been consummated after two years and ten months' cohabitation, a decree was granted, although the husband might have overcome the hysteria had the wife taken the prescribed remedies.* Where the operation might have been successful had the woman submitted to it, the court granted iFranke v. Franke (Cal.), 31 P. mous, 10 W. N.C. 569; Anonymous, 571, distinguishing Baker ij. Baker, 11 W. N. C. 479; Roe v. Roe, 29 13 Cal. 87. Pitts. Leg. J. 319; Anonymous, 35 2 Payne v. Payne, 46 Minn., 467, Ala. 226. 49 N. W. 280; D. v. A., 1 Rob. Eo. SDevanbaugh v. Devanbaugh, 6 279; Ferris v. Ferris, 8 Conn. 166; Paige, 175. Bascorab v. Basoomb, 5 Foster ^G. v. Q., 3 P. & M. 387. See, M. v. H., 3 Swab. & T. 592. considered as a "fraudulent con- 'Burtis v. Burtis, 1 Hopkins Ch^ §§ 684-687.] iMPOTEKCT, 621 § 684. What will bar the action — Adultery not a bar. In a nullity suit adultery or other recrimination is not a bar, since, the marriage being null, the cause for divorce cannot be considered, as no marriage obligations were violated.' § 685. Age of parties. — The inspection of the person is deemed more odious as the party increases in years ; and as the suit is supposed to be based upon injuries arising from the inability to copulate, the age of the parties sometimes bars the suit.^ There is, however, no particular age which will bar the suit.' "Where the wife waited twenty-seven years after the marriage before bringing suit to annul the marriage, this delay and her own age were sufficient to prevent a decree. She was in her fortyreighth year, " an age when neither the procreation of children nor the grati- fication of the passions," the usual motives which lead to the institution of such suits, were present.^ § 686. Deed of separation not a bar. — Although a deed of separation is entered into deliberately and with full knowledge of all the facts with the express purpose of pre- venting a scandalous litigation and needless exposure, such agreement will not bar a divorce for impotence. To hold such agreement binding would be " alike unjust and against reason and public policy." * But Avhere the manifest purpose of such suit was to escape liability under the agreement and there had been a delay of eight years, a suit was dismissed for insincerity.* § 687. Recrimination not a bar. — If the marriage can- not be consummated on account of the impotence of one of (N. Y.) 557. See, also, Perry v. for divorce on account of the wife's Perry, 3 Paige, 501. adultery. 1 McCarthy v. De Caix, 2 CI. & F. 2Shafto v. Shafto, 38 N. J. Eq. 568; M. V. D., 10 P. D. 75, 175; G. v. 34; Fulmer v. Fulmer, 36 Leg. Int. JL. 10 Ap. Cas. 171; A. B. v. C. B., (Pa.) 98. 11 Scotch Sess. Cas. (4th Ser.) 1060; ' W. v. H., 3 Swab. & T. 340. s. C, C. B.V. A. B., 13 id. (H. L.) 86. * W. v. R, 1 P. D. 405. In Griffin v. Griffin, 38 How. Pr. ^G. v. G., 38 Md. 401 (1870). 189, it was held that the husband's « M. v. C, 3 P. & M. 414. impotenoy was no bar to his suit 622 iMPOTENcr. [§ 688-- the parties, the law does not refuse a divorce on the ground that the competent party is guilty of some misconduct which entitles the other to a divorce.^ This form of suit proceeds upon the theory that the marriage is voidable on account of physical defects, and not upon the theory that a marital wrong has been committed. § 688. Delay. — We have considered the effect of delay in reference to actions for divorcfe, and some differences will be noticed here, as they apply to the suit for nullity on ac- count of impotence. No particular period of time is held ta be an unreasonable delay, but each case depends upon its own merits.^ Where a wife brought suit twenty-one years after separating from her husband and twenty-five yeara after marriage, it was a disputed question whether such delay would bar the suit. A majority of the court held that a decree should be refused.' The wife is not required to b& as prompt in bringing suit as her husband, yet a delay of ten years is too great.* ITo objection in one case was made to her delay of twelve years.' A husband's delay of seven years was not a bar.* And in one case a delay of seventeen years was permitted.'' The period within which suit for this cause can be brought is fixed by statute in some of the states.^ Where all attempts at consummation are repulsed by the wife for a period of five years, when her incapacity 1 McCarthy v. De Caix, 3 CI. & F. firmed on appeal, Castleden v. Cas^ 568; Miles v. Chilton, 1 Rob. Ec. tleden, 9 H. L. Cas. 186. 684 ^Lorenz v. Lorenz, 93IU. 376. 2 Harris v. Ball, cited in Norton ^ PoUard v. Wybourn, 1 Hag. Eo. V. Seaton, 3 PhilUm. 147; Cuiio v. 735. Cuno, 3 H. L. Sc. 300; S. v. A., 3 6 Guest v. Shipley, 2 Hag. Con. 331.. P. D. 73: Anonymous, Deane & S. ' Langevin v. Barette, 4 Rev. Leg. ' 295; B. N. v. B. N., 1 Spinks, 348; (Quebec), 160. B. V. M., 3 Rob. Ec. 580; M. v. B.. 3 » Generally the period is two Swab. & T. 550; T. v. D., 1 P. & M. years after the marriage. Arizona, 127; W.u R., IP. D. 405; Harrison Michigan, New York, Nebraska, u. Harrison, 3 Swab. & T. 863; M.u Vermont, Wyoming. In Calif or- D., 10 P. D. 75; G. v. M., 10 Ap. Cas. nia. North and South Dakota and 171. ' Idaho the action must be within 3H. V. C, 1 Swab. & T. 605; af- four years. § 689.] IMPOTBNOT. 62S was discovered, and twelve years after the marriage she su bmitted to an unsuccessful operation, a delay of two years after the operation did not bar the husband's suit.' "Where the husband's application was not made until thirteen years after the marriage and several years after the wife had be- come insane, and while she was in an insane asylum, the court held the delay too great. " For nearly eight years the complainant cohabited with appellee, with full knowl- edge and without complaint of this cause. In the absence of strong rebutting facts, he must be taken to have accepted the situation, and cannot now be heard to complain. Mere motives of delicacy are not a sufficient explanation of such long-continued acquiescence." ^ A delay of five years was explained by the fact that complainant was restrained by conscientious scruples from seeking a divorce and supposed it to be inconsistent with his religious duty ; and a divorce a vinculo was granted although the parties had entered into a deed of separation.' § 689. Insincerity. — It was a rule of the ecclesiastical courts to refuse to annul a marriage where it appeared that the plaintiff prosecuted the stiit for some collateral motive other than the real cause of complaint. Thus, where a party, aftef some delay, brings the suit because the husband has ceased to support her ; * or because the annulment will relieve from the liability of further support ; * or to silence reports that complainant is insane,*" the court wiU not grant a decree because the real grievance is not a failure to have sexual intercourse.^ This doctrine of " insincerity " was ap- plied with such strictness as to be productive of much injus- tice, and has been criticised as severe and a fruitless attempt to discern aU the motives of the plaintiff.* The presence of collateral motives should not bar the remedy where there is 1 A. B. u C. B., 84 N. J. Eq. 43. 5 m. v. C, 3 P. & M. 414 aPeipho v. Peipho, 88 111. 438. ^M. v. B., 3 Swab. & T. 550. 3 G. V. G., 33 Md. 401. "> W. v. R, 1 P. D. 405. ■•Castleden v. Castleden, 9 H. L. ^G.v. M., 10 Ap. Cas. 171. Cas. 186. 624 iMPOTENCT. [§§ 690, 691. a cause of action established by satisfactory evidence. The doctrine has not been affirmed in any American cases, and it is safe to say that a suit to annul a marriage will not be ■dismissed because the unfortunate party desires to recover aU her separate property, to vindicate her reputation, to avoid a cohabitation which threatens to injure her health, or to marry another, or in fact for any other collateral pur- pose which is recognized by the law and for which a remedy has been provided in other cases. But where there has been delay, and this combined with collateral purpose, the case is then governed by different considerations. § 690. Estoppel — Impotent party as plaintiff. — It is a principle of justice and reason that no man can take advan- tage of his own wrong, and a party who is conscious that he has some incurable defect cannot enter into the marriage relation and afterwards have the marriage declared nuU.' If the marriage with an impotent party was void instead of voidable, other reasons would apply ; as where the courts relieve the . parties from a bigamous marriage.'' But the wife may choose to live with the impotent husband, and then he cannot avoid the duties of the marriage, such as support and cohabitation, by having the marriage annulled. If, after unsuccessful attempts to consummate the marriage, the wife deserts, the husband should not be precluded from obtaining a decree annulling the marriage, where he was at the time of the marriage unconscious of his frigidity and consequent impotence.^ § 691. Pleading — In general. — The complaint must allege the marriage ; the peculiar form of the physical in- capacity in such specific language as to show that natural copulation is impossible ; that the defect existed at the time 1 Norton v. Seaton, 3 Phillim. 147 cree made absolute, and the appli- (1820). In H. V. B., 6 P. D. 13, a de- cation of co-respondent for that cree of nuUity had been entered purpose was denied, on account of the cruelty and im- ^ Miles v. Chilton, 1 Rob. Eo. 684. potence of the co-respondent. The ' A. v. A., 19 L. R. (Ireland), 403. petitioner refused to have this de- § 692.] IMPOTENCr. ■of the marriage ; and is incurable.^ rrand, not being an es- sential element in this cause of action, need not be alleged, i^or is it necessary in aU cases that the woman allege that she is a virgin and capable. Her capacity is presmned and is therefore not a necessary averment. Her virginity is l)roperly alleged if such is the case, but relief wiU not be de- nied should the evidence show that she has had children by a former marriage, or where she has comm.itted adultery. The age of the parties is usually alleged, but the omission of this fact would not render the pleading demurrable. § 692. How impotency alleged. — The following form contains all the necessary averments, and is probably suffi- cient under the rules of code pleading.^ To this form an alle- gation may be added " that plaintiff is a virgin and unknown •of man " if such is the fact. But such allegation is not a necessary one, and is perhaps objectionable as alleging evi- ■dence of the husband's impotence, a fact already stated in this pleading.' 1 Under a statute perraitting a sentence of nullity "when either party at the time of the marriage Tvas, and still is, impotent," an al- legation that " the defendant was, and still is, impotent, in that the mouth of the vagina of the said Margaret was and still is closed, so as to prevent copulation," was held sufficient, as the term " impotent " implies "incurability." Kempf v. Kempf, 34 Mo. 311. The term " cor- poral imbecility " is not a suffi- cient term to denote an incurable physical incapacity to consummate the marriage. Ferris i'. Ferris, 8 Conn. 166. 2 That on the day of , , the plaintiff, whose maiden name w^as A., married the defend- a,nt B., and cohabited with him from said date until the day of 40 That at the time of said mar- riage the defendant was, and has ever since continued to be, impo- tent, by reason of (here state the nature of physical incapacity), and that said incapacity is incur- able. That, on account of said physical incapacity, the defendant has been, and is now, unable to consummate said marriage, although the plaint- iff is apt and willing to do so. 3 In Serrell v. Serrell, 2 Swab. & T. 422, the husband asked for a dis- solution of the marriage on ac- count of the wife's adultery. The wife, in her answer, denied that she was lawfully married to plaint- iff, and pleaded his impotence in the following language: "That at the time of the celebration of the said pretended marriage on the 5th of November, 1844, the said 626 rMPOTENCT. [§§ 693, 69^- § 693. Different forms of impotence may be joined. — Different forms of incapacity may be .joined so long as they are not in their nature inconsistent. Thus, malformation may be alleged with frigidity resulting from or existing with it.^ The following petition is an illustration of the method of alleging the incapacity, first, as a malformation, and sec- ond, as a weakness or frigidity of the parts of generation.^ § 694. Evidence — In general. — The proof must be satis- factory and as direct as is possible under the circumstances, of the case. The impotence of the husband may be shown by proving cohabitation and that the wife remains a virgin.' But the signs of virginity are uncertain,^ and there are many S was impotent, and unable to consummate their said marriage; that sudh impotency was then, and now is, incurable; that not- withstanding the said S con- sulted divers medical men, and adopted divers remedies, be con- tinued impotent, unable to con- summate the said marriage; and that, although the respondent was apt and willing to receive the con- jugal embraces of the said S , he never did consummate the said marriage; but that, down to the 8th of January, 1861, when the re- spondent ceased to reside with the said S , she was and continued to be a virgin intact." The prayer of the answer was for annulment of marriage. The above pleading would, under the rules of code pleading, be open to the objection that the nature of the incapacity is not stated, and it is indefinite in that respect. See above form. 1 Welde V. Welde, 2 Lee, 578. 2 " First, that on, etc., the peti- tioner being about twenty-four years of age and the respondent twenty-six (proceeding to allege the marriage and cohabitation). " Second, that from the said date the petitioner lived with the said re- spondent at, etc., but that the said respondent was at said date, and has ever since continued to be, wholly unable to consxmimate his said marriage by reason of the malformation of his parts of gen- eration, and that such malformar tion is incurable by art or skill. " Third, that the said respondent was, at the time of the said mar- riage, and has ever since continued to be, wholly unable to consum- mate the said marriage by reason of the frigidity and impotence of his parts of generation, and that such frigidity and impotence of his parts of generation are wholly incurable by art or skill." M. v. H., 3 Swab. & T. 517; S. a, Marshall v. Hamilton, 10 Jur. (N. S.) 853. 8M. V. H., 3 Swab. & T. 517; M. V. B., 3 Swab. & T. 550; Pollard v. ■Wyborn, 1 Hagg. Eo. 725; Anon., 11 W. N. Cas. 479; Grimbaldeston V. Anderson, cited in 3 Phillim. 155, < S. V. E., 3 Swab. & T. 240. § 694.J IMPOTENOY. 627 cases where the husband was shown to be impotent and the marriage annulled, although the signs of virginity were doubtful.' And in one case it was established by medical testimony that the hymen may remain, although the mar- riage is consummated.^ In another a decree was granted the wife where there was a triennial cohabitation, and proof that the husband had admitted his impotency, although there was no proof of wginity, and the husband denied his incapacity in the answer.' The admission of the defendant and the testimony of the plaintiff has been held insufficient where the physician's testimony is equivocal and the inca- pacity, if it existed, was latent.* "Where the testimony of the parties is contradictory and the testimony of the physi; cians leaves the question of her virginity in doubt, the suit should be dismissed for lack of evidence.* If the evidence is not clear the courts inquire into the motives of the parties,, the date when complaint of the impotence was first made to others, and any conduct of the parties which may account for the suit being brought on account of collateral mo- tives. In such cases the court looks at all the circum- stances and the conduct of the parties for corroboration. In one case the inquiry was, when did the petitioner first become aware of the alleged deficiencies of her husband and how did she conduct herself upon that discovery ? ® The fact that the wife lives with her husband for ten years with- out complaint is considered a suspicious circumstance tending to show that her testimony is a fabrication.'. The birth of a child is sufficient evidence to disprove her physical incapacity.* 1 T. V. D., 1 P. & M. 137; L. v. H., or the contrary; but there are de- 4 Swab. & T. 115; F. v. D., 4 Swab, cidedly no physical impediments. & T. 86. to sexual intercourse." See this 2 L. V. H., 4 Swab. & T. 115. case affirmed, Harrison v. Harri- 3 Sparrow v. Harrison, 3 Curt. Ec. son, 4 Moore, P. C. 96. 16. The report of the physicians * Lorenz v. Lorenz, 93 IlL 876. was as follows: "The signs of 5 XJ. v. J., 1 P. & M. 460. virginity are in many instances * Cuno v. Cuno, 3 P. & M. 414. inconclusive. In the present case ' Lorenz v. Lorenz, 93 111. 376. there are no positive proofs of con- ^ Riley v. Riley, 26 N. Y. Supp. nection having ever taken place, 164, 73 Hun, 694. 628 iMPOTENCT. [§§ 695, 696. § 695. Burden of proof. — The burden of proof is, of course, with the party alleging the impotence, and the evi- dence must establish its existence at the time of the mar- riage, and that it is of an incurable nature.' The evidence must be clear and satisfactory, and sufficient to convince the court that the incapacity exists. In one case the court granted a decree upon the uncorroborated testimony of the wife.- Ordinarily more proof wiU be required. § 696. Triennial cohabitation. — It was a rule of the canon law, recognized by the ecclesiastical courts, that where the parties after marriage have lived together for a period of three years, and the woman can show that she is virgo intacta, the impotency of one of the parties will be presumed in the absence of rebutting proof.' It is not a rule of law requiring such cohabitation in doubtful cases, but is a mere rule of presumption where direct evidence is not before the court. If the parties have lived together in the same house for three years, under ordinary opportunities for inter- course, and there has been no consummation, the impotency of one of the parties is presumed. But this presumption may be rebutted.* "Where the defect is obvious, or can be proved by competent testimony, no particular period of cohabitation is required or is necessary.* The presumption iBrownuBrown, IHag.Ec. 533; 325; "Welde ?;. Welde, 3 Lee, 578. "Welde u Welde, 3 Lee, 578; Devan- This requirement seems to have baugh u Devanbaugh, 5 Paige, 554; beeu absolute in some cases. Ale- M. V. C 2 P. & M. 414. See same son v. Aleson, 2 Lee, 576; Lewis v. case afBrmed, Cuno v. Cuno, 2 Lewis, cited Welde v. Welde, 3 Scotch Ap. (H. L.) 800; Newell v. Lee, 579; Gimbalderson v. Ander- NeweU, 9 Paige, 25. son, cited in Norton v. Seaton, 3 2 Christman v. Christman, 7 Pa. Phillim. 147. In Greenstreet v. Co. Ct. Rep. 595. Cumyns, 2 Phillim. 10, it is con- 3G. V. M., 10 Appeal Cases, 171 sidered "a well known and valu- (1885); Pollard u Wybourn, 1 Hag. able rule, adopted of old time for Ec. 725. the guidance of the court, that ''C. B.v.K B., 12 Scotch Sess. impotence shall be presumed after Gas. (4th Ser.) H. L. 36. three years of ineffectual cohabita- ^Deane v. Aveling, 1 Rob. Ec. tion, and shall not be presirmed 379; Briggs v. Morgan, 3 Phillim. before." See, also, U. v. F., 2 Rob. § 697.] IMPOTEXCY. 629 from triennial cohabitation may be applied by our courts, but ordinarily the evidence will be sufficient without it.' Where the impotence complained of is the result of self- abuse, which may be cured by self-restraint and proper treatment, the period of cohabitation must be for such a length of time as to show that the weakness is incurable, because the defendant Avill not submit to treatment or abandon the habit. A cohabitation of only two months is held to be insufficient in such cases.^ §697. Inspection of the person.— When the proofs are doubtful, the court may order an inspection of the person by medical experts, who examine the sexual organs of the parties and report whether or not they are capable of mar- riage consummation. The ecclesiastical courts appointed three persons — two physicians and a surgeon, or two sur- geons and a physician. These were nominated by the plaint- iff or promoter, but the adverse party had the privilege of choosing one of them.' It seems that at oue time the woman was examined by matrons and midwives.^ Ec. 614; S. V. E., 3 Swab. & T. 340; child. A jury of matrons were M. V. H., 3 Swab. & T. 517; F. v. D., sworn to inspect her person and 4 Swab. &T. 86; G. u G., 3P.& M. report the result to the court. 287; A. r. B., 1 P. & M. 559; N r See procedure described at length V. M — -e, 3 Rob. Ec. 635; s. C, in Reg. v. Wycherley, 8 Carr. & P. Anon., 22 Eng. Law & Eq. 637; A. 363 (1888); Reg.n Baynton, 17 How. V. B., 1 Spinks, 13. St. Tr. 598; State v. Arden, 1 Bay iln Anonymous, 89 Ala. 391, 7 (S. C), 487; Thompson on Trials, So. 100, the rule was not applied § 853. This method of inspection owing to the form of the statute, has been condemned by such mod- 2 Griffith V. Griffith, 55 IlL Ap. ern medical authority as Beck (see 474; S. V. E., 3 Swab. & T. 340. Med. Jur. 203) and Taylor (Med. 'See proceedings in full, Deane Jur. 154), and their position is V. Aveling, 1 Rob. Eo. 379. amply sustained by the history of 4 Essex V. Essex, 3 How. St. Tr. such cases. In some states the 786; Welde v. Welde, 2 Lee, 580. jury is required to be in whole or This proceeding is analogous to in part of medical men. To tlie that pursued in the common-law objection that such examinations courts where the execution of a were offensive and obscene, Lord death sentence was suspended if Stowell answered that "It has the woman was found to be with been said that the means resorted to 630 IMPOTENCY. [§ 698. § 698. The power of our courts to compel inspection. — The objection has been raised that our courts have no power to compel an inspection, since both the jurisdiction and in- cidental powers are conferred by statute, and no other or further power exists unless so conferred. The answer from the court to this objection is that when the legislature con- ferred upon a court the jurisdiction to annul a marriage for impotenoy, it conferred also the incidental powers necessary to make its exercise effectual. If the court has no power to compel the inspection, this would result in most cases to an absolute denial of justice, for in the very nature of the case no other evidence can be obtained. Therefore the courts may exercise the incidental powers of the English courts so far as the principles and practice of those courts are ap- plicable to the conditions and circumstances of our people.^ This doctrine is sound, and, unless the common law on this point is declared inapplicable to the conditions and wants of the people, the courts having jurisdiction to annul a marriage for this cause have also the power to compel either or both parties to submit themselves to an examination by persons appointed for that purpose.^ for proof on these occasions are of- different principle from that which fensive to natural modesty; but nat- had theretofore existed in Eng- ure has provided no other means, land, and indeed, in all Christian and we must be under the neces- countries, as to the nature and ex- sity of saying that all relief shall tent of the physical incapacity be denied, or of applying the means which would deprive one of 4he within our power. The court must parties of the power to contract not sacrifice justice to notions of matrimony. And the court is, by delicacy of its own." Briggs v. necessary implication, armed with Morgan, 3 Phillim. 335. all the usual powers which in that 1 See Le Barron v. Le Barron, 35 country, from which our laws are Vt. 365 (1862), a leading case, citing principally derived, are deemed Devanbaugh v. Devanbaugh, 5 requisite to ascertain the fact of Paige, 554, in which the following incapacity, and without which it language of Chancellor Walworth would be impossible to exercise is found: "When the legislature such jurisdiction.'' conferred this branch of its juris- 2 This power was not questioned diction upon the court of chancery, in the following cases: Anony- it was not intended to adopt a mous, 35 Ala. 236; Anonymous, 89 § 699.] raroTEKCY. 631 § 699. Power denied. — "While it is clear that the com- mon-law courts coiild compel either or both parties to sub- mit themselves to an examination by experts appointed by the courts for that purpose, yet our courts may decline to exercise such power, because such an extraordinary remedy is not suited to the condition or to the manners of the peo- ple, and not consistent with modern legislation and the right of personal immunity. The right to exercise this power was emphatically denied by Cooley, J. " It should be understood," said he, " that there are some rights which belong to men as men and to women as women, which in civilized communities , they can never forfeit by becoming parties to divorce or any other suit, and there are limits to the indignities to which parties to legal proceedings may be lawfully subjected." ^ The power of a court to grant an order compelling a physical examination in personal injury cases has been often questioned in recent decisions, and the tendency is to deny that such power exists. The supreme court of the United States, in a recent opinion exhausting the subject, has denied the power of the court to issue and enforce an order to a party in a suit, compelling him to submit his person to an examination of surgeons without consent and in advance of the trial. The court held such extraordinary proceedings to be without authority of the common law or of the statutes ^S. V. Dempsey, 9 Ire. Law, 384; Law J. 194 Gentry v. McMinnis, 3 Dana, 383; ^ije Camille, 6 Fed. 356. S. V. Chavers, 5 Jones Law (N. C), 7 Be Ah Yup, 5 Saw. 155. 11; P. uHaU, 4CaL 399; S. u Mel- 8 state v. Gibson, 36 Ind. 389, ton, Busbee, 49. See, also. White v. citing Lane Co. v. Oregon, 7 WalL Tax CoUector, 3 Rich. 136; Pauska 76; Collector v. Day, 11 Wall. 113;. V. Dans, 31 Tex. 67; People v. Dean, Prigg v. Com., 16 Pet. 635; City of 14 Mich. 406. New York v. Miln, 11 Pet. 103, 139, < BaUey v. Fiske. 34 Me. 77 ; Lane §719.] MISOEGENATIOSr. 649 United States ; and that such citizens of every race and color, \Yithout regard to any previous condition of slavery or in- voluntary servitude, except as a punishment for crime, vrhereof the party shall have been duly convicted, shall have the ^ame right in every state and territory in the United States to make and enforce contracts . . . as is enjoyed by white persons, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwith- standing." Nor are such state laws impaired by the similar provisions of the fourteenth amendment to the constitution, declaring that no state shall " deny to any person the equal protection of the laws." ' The civil rights bill . extended its protection to lawful contracts only, and did not contemplate marriages declared void by the laws of the state.^ The state law abridges the rights of both parties, and punishes them with the same fines and penalties.' Judge Cooley* says: " Many states prohibit the intermarriage of white persons and negroes ; and since the fourteenth amendment this reg- ulation has been contested as the offspring of race preju- dice, as establishing an unreasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against another; it merely forbids marriage between the two. ISov can it be said to so narrow the privilege of marriage as practically to impede and pre- vent it. "Race prejudice, no doubt, has had something to do with establishing this law, but it cannot be said to be so en- tirely without reason in its support as to be purely arbitrary. The general current of judicial decision is, that it deprives 1 Pace V. Alabama, 106 U. S. 583; son, 80 Mo. 175; State v. Gibson, 36 Green v. State, 58 Ala. 190; Ellis v. Ind. 389; Frasher v, S., 3 Tex. Ap. S., 43 Ala. 525; Ford v. S., 58 Ala. 263; Lonasu State, 3 Heisk. 287. 150; State v. Hairston, 63 N. C. ^ Ex parte 'K.imiej, Z Hughes, 1, 451; State v. Eeinhart, 63 N. C. 80 Gratt. 858. S47; State v. Kenny, 76 N. C. 251; ^Ex rel. Hobbs, 1 Wood, 587; Eat Burns v. State, 48. Ala. 195; Hoover parte Fracois, 3 Wood, 367. V. State, 59 Ala. 59; State v. Jack- < Const. Law, 328, 229. 650 MISCE&ENATION. [§ 720. a citizen of notliing that he can claim as a legal right, priv- ilege or exemption." § 720. Such marriages ralid unless declared Toid by statute. — The marriage of a white person with a negro or person of color is valid unless the statute expressly declares such marriage void. This is in conformity to the law of marriage under such disabilities as want of age or mental or physical incapacity. Such marriage may therefore be valid, although the statute makes it a crime punishable by fine or imprisonment. Generally the statutes declare such mar- riages void, and then no decree of nullity is necessary before contracting another marriage. If the statute declares that " the celebration of such marriage is forbidden and the mar- riage is void," the invalidity of the marriage may be shown in any proceeding.^ Although the word "void" does not appear in the statute, the equivalent words may be sufficient to convey that meaning, as the declaration that " ma/rriage cannot he contracted between ^ white person and a negro, a mulatto or person of mixed blood to the third generation inclusive." ^ • Succession of Miniveielle, 15 La. ^ Carter v. Montgomery, 2 Tenn. An. 343. Ch. 21& WANT OF AGE. § 721. In general 723. Consent of parents. 723. AfSrming marriage. § 724. Hojv marriage disaiBrmed. 725. Statutes affecting the com- mon-law age of consent. § 721. Ill general. — The incapacity to make valid con- tracts, which is termed infancy, continues as to both males and females until they reach the age of twenty-one. This incapacity to enter into contracts did not apply to the con- tract of marriage. The common law fixed the age of con- sent required for marriage at fourteen in males and twelve in females. This so-called "age of discretion" seems to have been based upon the probable time when the parties might attain puberty and thus be physically capable to bear children. These ages were regarded as conclusive proof of puberty at common law ; but it seems that the canon law permitted proof of puberty to be made by actual inspec- tion. These indecent examinations were not allowed in England or Scotland.^ The ages at which puberty is gen- erally attained is in fact somewhat later than that fixed by the canon law, which is supposed to have been based upon observations made in Italy, where development is more rapid than in northern latitudes. At aU events, the com- jnon-iaw age of consent has been changed in many of the .states, and a greater age required in every instance. No marriage had any effect at common law if the parties were less than seven years old. A marriage contracted by parties m.ore than seven years old, but less than the age of consent, was not a mere nullity, but only an imperfect or inchoate marriage, which might be affirmed when the youngest party 1 Johnston v. Ferrier, Mort. Diet. 8931. 652 WANT OF AGE. [§ 722. became of age, and upon such affirmance -would become a valid marriage without repeating a ceremony or its prelim- inaries. § 722. Consent of parents. — The consent of parents is required in nearly all the states in the Union where the par- ties are minors. Generally the consent is required unless the male is twenty-one and the female eighteen years of age. At the common law the consent of parents or guard- ians was not necessary to a valid marriage.' It is univer- sally held that the failure to procure the consent of parents will not render the marriage void unless the statute ex- pressly declares that such failure wiU render the marriage void.'^ This requirement, like the requirements of publication of banns, license, solemnization, return of marriage license, etc., is merely directory and penal. It is not the intention in such statutes to invalidate all marriages where there is no compliance with such regulations.' Thus the statute fixing the age of consent for males and females, and provid- ing that parties under such age must first obtain the consent of their parents before a license shall be issued, is merely directory, and does not render a marriage void without such consent.* Nor is such a marriage void where the statute 1 Hargraves u Thompson, 31 Miss, penalties for violating such stat- 311; S. V. Dole, 20 La. An. 378; Gov- utes, see S. v. Bittick, 103 Mo. 183, ernor v. Rector, 39 Tenn. 57; Pear- 15 S. W. 335; Wood v. Adams, 35 son V. Howey, 6 Halstead (N. J. N. H. 33; Kent v. S.; 8 Blackford, Law), 13. 163; Smyth v. S., 13 Ark. 696; 2 Rex V. Birmingham, 8 B. & C. Fitzsimmons v. Buckley, 59 Ala. 29 (1828); Goodwin v. Thompson, 3 539; Adams v. Outright,' 53 III. 361; Greene (la.), 329 ; Parton v. Hervey, Ely r. Gammel, 53 Ala. 584 ; Vaughn 67 Mass. 119; Caterall v. Sweet- v. McQueen, 9 Mo. 330; Robinson man, 1 Rob. Ec. 304; Milford v. v. English, 10 Casey, 334; Cole v.: Worcester, 7 Mass. 48; Hiram v. Laws, 108 N. C. 585, 13 S. E. 985; Pierce, 45 Me. 367; Ferrie v. The Walker v. Adams, 109 N. C. 481, 13 Public Adm., 4 Brad. (N. Y.) 38. S. E. 907;.Maggett v. Roberts (N. 3 Pearson v. Howey, 6 Halst. 13; C), 13 S. E. 890; Riley u Bell (Ala.), Askew V. Dupree, 30 Ga. 173; 7 So. 155. Courtright v. Courtright (Ohio), 36 « Fitzpatrick v. Fitzpatrick, 6 Week. Law BuL 309; De Barros v. Nev. 63; Hunter v. Milam (CaL), 41 De Barros, 3 P. D. 1. For various P. 333. § '722.] WANT OF AGE. 653 contains the additional provision that " nothing in this act shall be construed so as to make the issue of any marriage illegitimate if the person or persons shall not be of lawful age." 1 The object of the statutes requiring consent of the parents of minors is to prevent hasty, ill-considered and fraudulent marriages, to notify the parents, who are in most cases liable for the support of the pair, and ultimately to discourage marriages at an age when passions are ripe but reason and discretion are still immature. So grave are the evils of early and secret marriages that legislation in almost every state has required notice, consent of parents, license, etc. In England at one time it was thought advisable to declare void all marriages of minors not in widowhood (solemnized by license but not including marriage by banns), when en- tered into without the consent of the father, if living, or, if dead, of the guardian or of the mother, or of the court of chancery .* This statute was construed in the cases cited below.^ The effect of this unwise legislation was to make many children illegitimate and to leave the marriage relation open to attack at any time by either of the parties, or by the par- ents who had not consented to the marriage.* So great were the evils which arose from the act and the various in- terpretations of it, that it was subsequently repealed and a statute was enacted declaring that all the property accru- iFitzpatrick v. Fitzpatrick, 6 1 Hag. Con. 262; Cresswellu Cous- Nev. 407. ins, 3 Phillim. 281; Droney v. 2 Lord Hardwicke's Marriage Archer, 3 Phillim. 337; Fielder u Act, 36 Geo., 3, ch. 33, § 11. Smith, 3 Hag. Con. 193; Clarke 3 Priestly v. Hughes, 11 Eas. 1; v. Hankln, 3 Phillim. 328; Duins Days V. Jarvis, 3 Hag. Con. 173; v. Donovan, 3 Hag. Ec. 301; Rex Sullivan v. Sullivan, 3 Hag. Con. v. James, Puss. & E. 17; Piers u 238; ReddaU v. Leddiard, 3 Phil- Piers, 3 H. L. Cas. 331; Rex v. But- lim. 356; Johnston v. Parker, 3 ler, Russ. ,& R. 61; Harrison v. Phillim. 39; Jones v. Robinson, 3 Southampton, 31 Eng. L. & Eq. 343i Phillim. 285; Smith v. Htison, 1 « Hayes v. Watts, 3 Phillim. 43. Phillim. 287; Hodgkinson v. Wilkie, 654 wAiTT OF AGE. [§§ 723, T24. ing from the marriage shall be forfeited, thus depriving the guilty party of the pecuniary benefit which is commonly the inducement to such marriages.^ Fortunately Lord Hard- Avicke's marriage act was enacted too late to become a part of oar common law.^ It is a piece of legislative folly from which many valuable lessons may be drawn. However un- wise and undesirable child marriages may be, the true policy^ consonant with good public morals and the best interests of the state, the parties and their offspring, is to preserve such unions when once made; declare their offspring legitimate,, the marriage valid. Such policy is one of necessity; other- wise the validity of the marriage would always be open to attack. The common law' has always proceeded upon this principle, holding the consent of the parties as sufficient without license or solemnization. § 723. Affirming marriage. — After both parties have attained the age of consent, they may affirm the marriage, and, when thus affirmed, it becomes valid without a new ceremony. A marriage may be affirmed by continuing to cohabit, by sexual intercourse, by the wife assuming the hus- band's name,' or by any other acts which show a desire to ratify the marriage and assume the marital relation. It seems that such marriage may be affirmed, although the statute has declared all marriages void where the "parties are unable to contract, or unwilling to contract, or fraud- ulently induced to contract." * § 724r. How marriage disaffirmed.— According to com- mon-law writers and some ancient authorities, the marriage of minors could hot be affirmed or disaffirmed until they both reached the age of consent. It was supposed that this inchoate marriage must so remain until the parties were capable of contracting a new marriage. In other words, the iRex V. Birmingham, 8 B. & C. 173; Governor v. Rector, 39 Tenn. 39 ; Act of 3 G. 4, ch. 75, § 1 ; 19 and 57. SO Vict. ch. 119, §§ 3-17. 3 Holtz v. Dick, 43 O. St. 39. 2 Pearson v. Howey, 6 Halstead < Smith v. Smith (Ga.), 11 S. E. (N. J.), 13; Askew v. Dupree, 30 Ga. 496. § T21.1 WANT OF AGE. 65& iacapacity to contract marriage was also an incapacity to disaffirm. But the better opinion is that either party may, at any time before the age of consent, dissent to and dis- affirm the marriage in toto} " If the plaintiff had capacity to become a party to such imperfect and inchoate or condi- tional marriage, he should have capacity to disaffirm it at any tune thereafter, before it has ripened into an absolute marriage, by invoking the authority of the court to annul it under the statute. ilSTo good reason is perceived why the parties should be compelled to remain in so unfortunate a jiosition until the plaintiff becomes of age." ^ sent. Whether this is true or not at common law, a disaffirmance under the age of consent has been recognized in our practice when- ever it occurred. Consent may re- quire intelligence usual to the age fixed by the law, but no policy of our law requires a like degree of discretion to disafiSrm. Thus, in New York a man twenty-three years of age married an infant under twelve, who immediately declai-ed her dissent to the mar- riage, and the court placed the in- fant under its protection and forbade him all intercourse or cor- respondence with her. Aymar v. Ruff, 3 Johns. Ch. 49. And in more recent decisions a disaffirmance before the statutory age of con- sent has been held sufficient. See Eliot V. Eliot, 77 Wis. 634. See same case, 46 N. W. 806 and 51 N. W. 81; Shafher v. State, 20 O. 1. The Michigan statute provides that "in no case shall such mar- riage be annulled on the applica- tion of the party who was of the age of legal consent at the time of the marriage." People v. Slack, 15 Mich. 193. 1 See Tyler on Infancy and Cov- erture, 126. - Eliot V. Eliot, 77 Wis. 634, 46 N. W. 806. Chancellor Kent (2 Com. 78), fol- lowing Blackstone, said: "No per- sons are capable of binding them- selves in marriage until they have arrived at the age of consent. Marriage before that age is void- able at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made." In Co. Lit. 79, it is said: " The time of agreement or disa- greement when they marry infra annos nubiles, is for the woman at twelve or after, and for the man at fourteen or after, and there need be no new marriage if they so agree; but disagree they cannot before the said ages, and then they may disagree and marry again to others without any divorce; and if they once after give con- sent, they can never disagree after." From the above state- ments of the common-law doctrine it would be inferred that no valid disaffirmance could be made be- fore the common-law age of con- 636 WANT OF AGE. [§^25. At any time before the youngest party arrives at the common-law age of consent, which we have seen was four- teen years in the male and twelve years in the female, either party may disaffirm the marriage. A man of thirty may marry a lass of eleven years and disaffirm such marriage at any time he chooses until she reaches the age of consent, after which he is bound or not at her election.' In ordinary contracts, only the minor may disaffirm ; but in such mar- riages either party may disaffirm, for both parties must be bound or neither. It would seem that a judicial ' sentence of annulment would be necessary where such imperfect' marriage has been disaffirmed.^ This is especially true in our country at the present time when marriages are entered on public records, and this evidence may be used in the future to disturb titles and bastardize children. In Ohio, where the statutory age of consent is fixed at eighteen for males, a boy married when he was but sixteen, and disaf- firmed the marriage at seventeen by marrying another with whom he cohabited after he was eighteen. This second marriage was held valid and the former void. The disaf- firmance was pronounced valid, " for our law furnishes no method of obtaining a judicial sentence for annulling such a marriage ; unless the parties have the means of escape in their own hands, none exists." ' The Wisconsin statute pro- vides that marriages voidable for want of age " shall be void from such time as shall be fixed by the judgment of a court of competent authority declaring the nullity thereof." It is further held that such a marriage is not an absolute nuUity, but is only annulled from such time as shaU be fixed by the judgment of the court, and that a party can- not disaffirm the first marriage by marrying another. Such second marriage is bigamy.^ § 725. Statutes affecting the common-law age of con- sent. — It is a general rule that statutes in derogation of the 'People V. Slack, 15 Mich. 193; 2 But see Walls u S., 33 Ark. 565. Eliot V. Eliot, 77 Wis. 634, 51 N. W. sghafiier v. State, SO O. 1. 81 ; Shafher v. State, 20 O. 1 ; Walls « State v. Cone, 86 Wis. 498, 57 N. V. S., 33 Ark. 565; 2 Kent Com. 44. W. 50. § 725.] WANT OF AGE. 667 common law are not extended by construction beyond their general meaning. If the statute modifies some period of time, that alone will not change the principles of the common law. Thus, the common-law age of consent is changed by a provision that " a male under the age of seventeen and a female under the age of fourteen years are incapable of con- tracting marriage." But such provision does not render a marriage of parties under these ages void. The manifest purpose of the enactment was to merely enlarge the age of consent from that fixed by the common law.' In North Carolina the age of consent is enlarged by a provision that " females under the age of fourteen and males under the age of sixteen years shall be incapable of contracting marriage." "■ Such-provision, although it changed the ages of consent, was considered to leave the common law unaltered in respect to the validity of the marriage. In Iowa, the statute provid- ing for the issuing of marriage licenses, and directing what officers may perform the ceremony, enacted, among other things, that " male persons of the age of eighteen years and female persons of the age of fourteen years, not nearer of kin than first cousins, and not having a husband or wife living, may be joined in marriage. Provided ahoays, that male persons under twenty-one years, female persons under the age of eighteen years, shall first obtain the consent of their fathers respectively ; or, in the case of the death or in- capacity of their fathers, then of their mothers or guardians." Such statute was held merely directory and penal. It was in efl'ect merely cumulative, and did not change the com- mon law. The marriage of a daughter fourteen years old, without the consent of her parents, was not void.' The same interpretation has been placed upon similar statutes in other states.^ When the statutes have raised the »Beggs V. State, 55 Ala. 108. «Parton v. Herrey, 67 Mass. 119; 2 Koonce v. Wallace, 7 Jones' Fitzpatrick v. Fitzpatrick, 6 Nev. Law (N. C), 194 63; Bennett v. Smith, 31 Barb. 439. ' Goodwin v. Thompson, 3 Greene (la,), 339. 43 658 WANT OF AGE. [§'^'25. age of consent, the marriage does not become valid by ratt fication when the youngest party has reached the common- law age of consent, but is stiU inchoate and imperfect until such party affirms or ratifies the marriage after reaching the statutory age of consent.^ The common-law age of consent is not abrogated by a provision of a penal code fixing the age under wMch a female shall be held incapable of consent- ing to unlawful carnal knowledge.^ 1 Eliot V. Eliot, 77 "Wis. 634, 51 2 Fisher v. Bernard (Vt.), 37 A. N. W. 81, citing People v. Slack, 15 316. But see Bennett v. Smith, 31 Mich. 198; McDeed v. McDeed, 67 Barb. 439, and Moot v. Moot, 37 IlL 546; Holtz v. Dick, 43 O. St. 33; Hun, 288, where the question was Shafher v. State, 30 0. 1; People v. raised but avoided. Bennett, 39 Mich. 208. PARTIES. I 736. Who may maintain a suit for divorce or annul- ment. 727. Third persons as defend- ants — Eight to inter- vene. § 738. and Coverture, infancy guardianship. Insane persons as parties. 729a. Death of parties and re- vival of suit. 739. § 726. Who may maintain a snit for divorce or annul- ment. — The right to sue for divorce is a personal right and can only be exercised by one of the parties of the marriage. It is for the injured party to determine whether the cause for divorce shall be condoned, or whether it shall be the ground for an application to dissolve the marriage. The statutes require the plaintiff to verify the petition for di- vorce, and provide for no substituted verification as in- other cases, and in other respects the provisions relating to suits for divorce evidently contemplate a suit by one of the mar- ried parties.' It is not certain that a third person could maintain such suit in the ecclesi9,stical courts." In the absence of any statute to the contrary it would seem that any interested party might maintain an action to have a void marriage declared to be so. Such marriage may be a cloud upon titles, or may entitle a reputed spouse to a 'Mohler v. Shank's Estat« (la.), 61 N. W. 981. The verification can- not be made by others. See Dan- iels V. Daniels, 56 N. H. 219; Phil- brick V. Philbrick, 27 Vt. 786. 2 In Morgan v. Morgan, 2 Curt. Ec. 679, a father was allowed to maintain a suit for separation on a showing that his son was a minor and residing in the East Indies, and that the delay incident to ob- taining the son's consent would re- sult in a failure to preserve the evidence of the wife's adultery. The court heard the evidence, but before entering the decree required a proxy from the son confirming and ratifying the acts of his father. 660 PARTIES. [§ 737. distributive share of an estate. The right is not purely per- gonal. A suit to annul will not abate upon the death of the parties.' No affirmance or ratification of either party can render it void, and there is no opportunity for the personal volition required in a suit for divorce. The ecclesiastical law permitted third persons to maintain an action to annul ' a void marriage, but such persons must have some interest in the marriage, either as heirs or as persons who might be liable for the support of the parties or their children.^ But if the marriage is voidable it is clear that it is a personal action, dependent upon the will of the party to affirm or dis- affirm the marriage. Our statutes relating to annulment of marriage are often so joined and mingled with divorce statutes that this form of action may be classified as a per- sonal action, and cannot be maintained by an interested third party.' § 727. Third persons as defendants — Right to inter- vene. — In the divorce suit proper, in which no ancillary relief is prayed for, no third person will be allowed to inter- vene. The ecclesiastical practice permitted any person hav- ing an interest in the marriage to intervene in the nullity suit or in the suit for separation.* But this practice has not been adopted in this country, and the alleged paramour can- iSee Sharon v. Terry, 36 Fed. vorce and married another man, 837. for the code provides that the suit 2 Sherwood v. Ray, 1 Moore P. C. can only be brought by either 853, was an action by the father party. Ridgely v. Eidgely (Md.), to annul a void marriage of his 29 A. 597. Where a statute de- daughter to a son-in-law, the mar- dares that a certain marriage, if riage being void on account of in- contracted in good faith, shall be cest, as the woman was the de- declared void only on the applica- ceased wife's sister. See, also, Ray tion o^ one of the parties, it is held V. Sherwood, 1 Curt. Ec. 193; Fare- to be a voidable marriage, and can- mouth V. "Watson, 1 Phillim. 355; not be declared void on the appli- "Wells V. Cottam, 3 Swab. & T. cation of creditors. Cropsey v. 864. McKinney, 30 Barb. 47. 3 Thus, in Maryland, a husband § 748.] PLEADING. 705 A decree of divorce may reserve questions relating to ali- Tttony and the custody and support of the children for future -consideration.^ Or it may find the wife entitled to a divorce and alimony, and refer the matter to a master in chancery for further evidence.^ As the decree of divorce is final as to aU property rights which are or might have been litigated in the divorce suit, ^he decree should contain specific and complete provisions relating to the property rights of both parties. The rights of curtesy and dower should be expressly reserved or extin- guished- by the decree.' The order for the custody and support of the children, the order for alimony or a division or restoration of property, and the order for attorneys' fees, are usually incorporated in the final decree of divorce.'' The decree may be amended during term as other judgments and decrees.* Dooley v. Dooley, 19 IlL Ap. 391. But where no answer is filed, find- ings are not required. Eeading v. Reading, 96 CaL 4, 80 P. 803. 1 Ambrose, -Ba; parte, 72 CaL 398; Cooledge v. Cooledge, 1 Barb. Ch. 77. 2 See form of order in Knowlton V. Knowlton, 40 HI. Ap. 588. 8 If left in doubt as to dower the ■decree may be amended. Leeman V. Leeman, Stephen's Digest (Ont.), 495. *But it is held that the order for attorneys' fees is not a proper portion of the final decree of di- 45 vorce. Williams v. Williams, 6 N. Y. Supp. 645. 5E. u E., 20 Wis. 331; Eeading v. Eeading, 96 Cal. 4, 30 P. 808; Mos- ter V. Moster, 58 Mo. 326; Tucker V. Tucker, 132 lU. 558; Carley v. Carley,7 Gray, 545; Oadesv. Oades, 6 Neb. 304. When default set aside, § 775. Modification of decrees of ali- mony, § 934. Modification of order for custody and maintenance of children, § 985. For procedure in vacating de- cree for fraud, see § 1057. Application or petition to annul decree obtained by fraud, § 1057. FORMS OF PLEADINGS AND DECREES. § 750. In general. 751. Petitions for divorce. 753. Petition for divorce on ac- count of cruelty. 753. Answers in suits for divorce. 754 Answer and cross-petition for divorce. 755. Petition for annulment of marriage. 756. Petition to annul marriage contracted in good faith and to have children de- clared legitimate. 757. Petition for maintenance of child after divorce. 758. Petition to set aside a fraud- ulent conveyance. 759. Petition for alimony with- out divorce. § 760. Applications for alimony. 761. Order for temporary ali- mony. 762. Decrees of absolute divorce- 763. Default upon constructive service. 764 Decree of separation or lim- ited divorce. 765. Decree of niillity. 766. Decree for permanent ali- mony. 767. Decree awarding alimony^ custody of children and use of homestead. 768. Decree restraining sale of property and restoring the- wife's property and award- ' ing use of homestead. § 750. In general. — There is no uniform practice relat- ing to the divorce suit, as the suit is in some states a proceed- ing in equity and in other states a proceeding under the cod© of civil procedure. The following forms of pleadings and decrees are selected with reference to the states having codes of civil procedure ; but it is believed that, with some varia- tions required by local practice, the forms will be sufficient in either form of procedure. The forms given are mere out- lines, suggesting the nature of the pleadings required, and are' to be varied according to the nature of the case. Some of the forms are taken from the reports, and, although held suf- ficient by the courts, are not always free from objection, but will be useful in suggesting to the pleader the necessary f ormi which his case may require. § 751.J FOKMS OF PLEADINGS AND DECKEES. TQ7 § 751, Petition for divorce — -The following is a commom form of the petition for divorce : 1. The plaintiff, , alleges that she is now, and has been for more than [statutory period of residence\ imme- diately preceding the filing of this petition, a resident of county, in the state of ; and that said residence has been in good faith and not for the purpose of obtaining a decree of divorce.^ a. That on the day of , in the city of , in county, , the plaintiff, whose maiden name M'as , married , the defendant, and said parties lived together as man and wife until the day of , 18 — J^ That during all of the time said parties lived together, the plaintiff conducted herself as a faithful, chaste and obedient wife.' 3. That on the • day of [or at various times dur- ing the months of and — ■ — ^ the defendant had sexual intercourse with one [or if the name is unknown the allegation may Ije, " with a woman whose name is un- known to the plaintiff " ] at the house of , at No.. , — ■ — ■ street, in the city of . [The following alle- gation is sometimes required : " "Without the connivance or- collusion of the plaintifi', who has not condoned or forgiven such offense." ] * 4. That the following children are the issue of said mar- riage of plaintiff and defendant [here state names and ages of children'], who are now living with plaintiff [or other per- son, as the case may he']. 5. That defendant is leading an immoral Ufe, has no per- "manent residence, is violent and cruel in his treatment of children [state other facts showing unfitness], and is wholly unfit to be intrusted with the care and education of children. 6. That plaintiff has personal property consisting of [here describe it], worth about dollars, and also the following described real estate, , worth about dollars, but mortgaged for the sum of dollars, and none of said property produces an income or can be sold or converted to iSee Allegation of jurisdiction, *Wheii pleading is indefinite, § 731. §§ 182, 183. 2 See How marriage alleged, §733. When name of paramour is not 3 See Plaintiff need not antici- required, § 181. pate defenses. Variance of time and place, §§184,. 185. 708 FOEMS OF PLEADINGS AND DECI4EES. [§ Y51. plaintiff's use. [Or allege that " plaintiff has no property in her own right, and no means with which to prosecute this suit and maintain herself and children (except ), .] 7. That defendant has personal property consisting of [here describe if], worth about doUars, and is the owner in fee of the following described real estate [desoriied as m a conveyance'] ; and defendant also owns the property now occupied by plaintiff and said children as a homestead, and described as follows: [description'], and worth about dollars, and mortgaged for the sum of dollars. That plaintiff is without means to support said children and to prosecute this action, and said defendant has neglected and refused to support the plaintiff and said children.^ Therefore plaintiff prays that she may be divorced from said defendant, and that said marriage be dissolved; that she may be given the custody of said children ; that she may be allowed to remain in said homestead ; that the said real estate be divided between the parties, and that defendant be decreed to pay a reasonable sum of alimony, and for such other relief as may be just and equitable.^ A. B., by , her Attorney. [Add the required verification^ ' Other causes for divorce may be alleged as follows: Cruelty. That the defendant has been guilty of extreme cruelty [use statutory term] towards the plaintiff, in this, that on the day of , and at numerous times thereafter untH the day of , defendant accused plaintiff of having committed adultery with one . That said accusation was re- peated before plaintiff's friends and relatives, and has caused plaintiff severe mental stiff ering, thereby rendering plaintiff's condition intolerable and impairing her health. Plaintiff denies that she has committed adultery with , or with any other person, and alleges that she has conducted herself as a chaste and discreet wife, and that said accusa- tion is utterly false and unfounded.* ' See Causes for ancillary relief, * For another form of allegation § 736. on the ground of cruelty, see § 752. 2 Prayer for divorce, see § 737. For sufficiency of allegation of ' See Verification, § 788. cruelty, see §§ 332-837. § T51.] FOEMS OF PLEADINGS AND DECEEBS. TOS Desertion. That on. the day of defendant deserted the plaintiff without just cause and has ever since been wilfully absent from plaintiff.^ Habitual drunkenness. That after said marriage defendant commenced the excess- ive use of intoxicating liquors and has for more than \_stat- utoi'y period'] been guilty of habitual drunkenness.^ Imprisonment. That on the day of and at the term of the court of county, , the defendant, was duly convicted of the crime of , and was thereupon sentenced by said court to confinement in the penitentiary of the state of for the period of years.. That defendant is now confined in said penitentiary in pursuance of said sentence, which now remains in full force and effect, and that no pro- ceedings to reverse said sentence are now pending.' Gross neglect of duty. That the defendant for more than years last past has been guilty of gross neglect of duty towards plaintiff, in that by reason or his idleness and dissipation he has wilfully failed and neglected to provide this plaintiff and their said children with food and clothing and the common necessaries of life, so that she has been compelled to live by her own exertions and labor, and on the assistance and charity ren- dered by her relatives, although he was fully able to prop- erly support her and her said children.* Neglect to provide or failure to support. That the defendant has for more than years last past been guilty of gross neglect of duty toward plaintiff, in that he has separated from plaintiff without the fault of plaint- iff, and has during said time wilfully failed and neglected to provide plaintiff with the common necessaries of life [or to contribute arvything towards the support of plaintiff \ 1 Or the facts causing separation ' Effect of proceedings in error, may be alleged. See §g 111-114. see § 361. SFor sufficiency of this allega- *For facts constituting gross tion, see Habitual drunkenness, neglect of duty, see § 383. §859. iiO FOEMS OF PLEADINGS AND DECREES. [§ 751. That daring said time defendant was in receipt of ■ dollars per month income from his business [or, was in con- stant receipt of wages sufficient for their joint support, to wit, about dollars per month], [or, that plaintiff, being in good health and having strength and ability to labor, and being offered employment;, ^as refused to labor, and has failed to provide plaintiff with the common neces- saries of life, because of idleness and dissipation].^ The following forms have been prepared by the judges of the English courts according to the provisions of the statute, directing them to make such rules and regulations concern- ing the practice and procedure as they may deem expedient : Petition. In the High Court of Justice. Probate, Divorce and Admi- ralty Division. (Divorce.) To the Eight Honorable the President of the said Division : The day of , 18—. The petition of A. B., of , showeth : 1. That your petitioner was, on the day of , 18 — , lawfully married to C. B., then 0. D. [spinster or widow], at the parish church of, etc. [Here state where the marriage tooTc place.'\ 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 children, to wit : [Here stMe the names and ages of the children, issue of the marriage.'] 3. That on the day of -, 18 — , and on other days between that day and , the said C. B., at , in the county of , committed adultery with E. S. 4. That in and during the months of January, February and March, 18—, the said C. B. frequently visited the said C. B. at , and on divers of such occasions committed adultery with the said E. S. Your petitioner thei-ef ore 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. [Petitioner's signature.] 'For sufficiency of allegation, see § 378. § 752.] FOEMS OF PLEADINGS AND DECREES. 711 Answer. In the High Court of Justice. Probate, Divorce and Admi- ralty Division. (Divorce.) The day of , 18—. A. B. V. 0. B. The respondent 0. B., by 0. D., her solicitor [or, in per- son], in knswer to the petition filed in this cause, saith : 1. That she denies that she committed adultery with K. S., as set forth in the said petition : 2. Kespondent 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 adulterv with K. L. [In like manner respondent is to state conuwanoe, condona- iion, or other matters relied on as a growndfor dismissing the petition.'] Wherefore this respondent humbly prays : That your lordship will be pleased to reject the prayer ■of the said petition and decree, etc. § 752. Petition for divorce on account of cruelty. — The following petition illustrates the form in which specific acts of cruelty should be alleged. After alleging the marriage and residence in the state, the petition contained the follow- ing allegations of cruelty: " (2) That on February 1, , the defendant was guilty of extreme cruelty towards her, without any cause or prov- ocation, in this : That, having put on his overcoat to go out of his house, and for no cause whatever, became angry, and began to curse and swear and to use violent language towards plaintiff, caUing her aU kinds of vulgar and vile names, and taking hold of her person in a rude and violent manner, striking her with his clinched fists. He threw and knocked her to the floor, and threw his whole body and Aveight upon her with so much violence and force as to injure the whole side, body and head of the plaintiff, so that she was for a long time sick and sore from said injuries, and, after she got up from the floor, he chased her about the house, jamming her in the door as she was escaping from him. " (3) On the 1st day of February he was guilty of extreme cruelty towards her, without any cause or provocation on her part, in the use of violent, indecent and profane language and conduct, calling her " a bitch, and old whore," And other like names. T12 FORMS OF PLEADINGS AND DECKEES. [§ 753. " (4) In the spring of , in the presence of plaintiff's; daughter, he was guilty of extreme cruelty towards plaintiff, without any cause or provocation, and at divers times dur- ing that spring, at their home, in this : That he called her " a whore, a damned bitch," and other Uke names, and fre- quently, during said spring, struck her with his fists, and' assaulted and battered her. " (5) That he is a man of vicious and vulgar habits, witb a quick and bad temper, of a jealous, selfish and revengeful disposition, and has often declared that he would never live- with plaintiff, nor permit her to live with him ; and that on the first Monday in April, , on account of his violent conduct and abusive language, she, being in fear of great bodily injuries, if not of her life, left her home, and has since: lived apart from defendant, and has supported herself." ' § 753. Answers in suits for divorce. — The foHowing^ forms will suggest the necessary allegations in answer to the petition for divorce : \Title of cause.] 1. The defendant, in answer to the plaintiff's petition, de- nies each and every allegation therein contained except as hereinafter admitted. 2. -The defendant admits that the plaintiff has resided in. this state and county for more than years immediately preceding the filing of said petition. Denial of marriage. 3. The defendant denies that the parties to this action' ^vere married at the time alleged in said petition or at any other time. The defendant further denies that he agreed to become the husband of the plaintiff, or that he aflBrmed or consummated the marriage alleged in said petition, or that he recognized plaintiff as his wife either in public or private, or introduced her to others as his wife, or that he spoke of her as such in the presence of others, or that the parties herein are reputed to be husband and wife. Mecrimination. The defendant further alleges that the plaintiff has been guilty of [here state a cause for dvoorce as in the form of a; jpetitiorv], and that defendant on discovering said offense [or^ after the commission of said offense] separated from plaint- iff and has not condoned or forgiven said offense. 1 Paden v. Paden, 28 Neb. 275, 44 N. W. 2i38. § Y54.J FOEMS OF PLEADINGS AND DECREES. IIS- , Condonation. The defendant further alleges that on or about ■ and after the acts alleged in plaintiff's petition, the plaintiff voluntarily forgave the alleged offense and resided and co- habited with defendant as his wife during , . Justification for cruelty. The defendant further alleges that at the time referred to in the first paragraph of plaintiff's petition, the plaintiff' at- tempted to strike defendant with a chair, without any cause or provocation on his part ; that, in order to protect himself^ defendant immediately took the chair away from her, using no more force or violence than was necessary. That plaint- iff then seized a heavy cane and attempted to strike him therewith, and defendant was compelled to take the cane away from her to protect himself from injury, which he did, using no more force or violence than was necessary. That any injuries the plaintiff may have received in resisting de- fendant's efforts to protect himself were not voluntarily in- flicted with intent to injure the plaintiff. Defendant denies that he struck or beat the plaintiff, as alleged in said peti- tion, or used any violence towards her except as herein set- forth. § 754. Answer and cross-petition for divorce. — 1. The defendant, in answer to the plaintiff's petition, de- nies each and every allegation therein contained, except as hereinafter admitted. 2. The defendant admits that for more than years immediately preceding the filing of said petition the plaint- iff has been a resident of this state, and that the parties t» this action were married as alleged in said petition. 3. The defendant denies that he committed adultery with at the time and place alleged in said petition. 4. The defendant alleges that since the filing of said peti- tion the plaintiff has voluntarily cohabited with the defend- ant as his wife, and thereby condoned the offense alleged in said petition. 5. The defendant alleges that the plaintiff had sexual in- tercourse with one , at defendant's residence during his absence, in the months of September and October, ; and the defendant, on discovering said offense, ceased to co- habit with the plaintiff, and has not condoned her offense. 6. [Add allegation concernvng property.'] 714 FORMS OF PLEADINGS AND DECEEES. [§ 755. , Therefore defendant prays that the plaintiff's petition be dismissed, that he be divorced from the plaintiii, and that said marri3,ge be dissolved, and for such other relief as may be just and equitable. C. B., by , his Attorney. lAdd verifioation if required.^ § 755. Petition for annulment of marriage. — The pe- tition for annulment of marriage is similar in form to the petition for divorce.' The following petition will suggest the form for annulment on the ground of fraud : 1. {^Allege residence as in a joetition for divorce.] 2. [Allege the mwrriage.'] 3. Plaintiff alleges that said defendant, for the purpose of inducing and persuading this plaintiff to enter into said marriage, falsely and fraudulently represented herself to be a virtuous and chaste woman, when in truth and in fact she was not, but was then pregnant by some man other than this plaintiff. 4. Plaintiff, relying upon the representations so made by said defendant, and belie^aug the same to be true, entered into said marriage, which he would not have done had not ■said false representations been made to him. That imme- diately upon discovering that said representations were false, to wit, on or about the day of , 18 — , he ceased to live and cohabit with said defendant and has ever since re- mained away from her. 5. That plaintiff, believing said marriage to be valid, on or or about , , conveyed to the defendant the prop- erty now occupied by plaintiff as a homestead and described as follows, to wit: [description of property.'] That said property was owned by plaintiff before said marriage, and that defendant has contributed nothing toward the improve- ment of the same. Plaintiff further says that he received no property of any kind from the defendant. Therefore plaintiff prays that said marriage may be de- clared nuU and void and that the conveyance of said real •estate, to wit [description of property], niay be vacated and set aside and the title of the same declared to be in the plaintiff, and for such other relief as may seem just and equitable. 1 For forms of petition to have marriage declared valid, see Gibson V. Gibson, 34 Neb. 394^ 39 N. "W. 450. § 756.] FOEMS OF PLEADINGS AND DECEEES. 715 Other causes for annulment of marriage may be alleged as follows: Physical incapacity. That at the time of said marriage the defendant was and has ever since continued to be wholly incapable to consum- mate said marriage by reason of the [here state the nature of the incapacity, as: malformation of her parts of genera- tion, or the frigidity and impotence of his parts of genera- tion], and that such" incapacity is incurable. Prior marriage undissolved. That at the time of the said marriage of plaintiff the de- fendant had a former [husband or wife] living, and not di- vorced. Mental incapacity. That at the time of said marriage the plaintiff was [in- sane, feeble-minded o?- intoxicated], and therefore incapable of understanding the nature of the marriage contract, and incapable of entering into the marriage relation. That plaintiff is now of sound mind, and has not affirmed or in any way ratified said marriage. Nonrage. That at the time of said marriage the plaintiff was but years of age and the defendant was but years of age, and therefore incapable of contracting marriage. That before the plaintiff was [age of consent] years old she separated from defendant, and has not in any way rati- fied or affirmed said marriage.^ § 756. Petition to annul a marriage contracted in good faith and to have the children declared legitimate. — 1. [Allege facts showing jurisdiction as in the petition.'] 2. [Allege the marriage.] 3. The plaintiff alleges that before said marriage the de- fendant married onB A. D., at , in county, , and that said parties cohabited as husband and wife until about the day of , 18 — [here allege facts show- ing a prior ma/t'riage undissolved], and that said marriage of plaintiff with defendant was entered into subsequently but with good faith on the part of plaintiff and with a full behef that the said A. D. was [dead or divorced]. 1 For form of petition to annul marriage on the ground of fraud, «rror and duress, see cases cited in § 634. 716 FOBMS OF PLEADINGS AND DECREES. [§ 757.. 4. \JSere allege the facts showing that a decree of divorce is- void, or that the said A. D. was livicg at the time said mar- riage was entered into.] 5. That the issue of the said marriage of the plaintiff and defendant is as follows : \^ive names and ages of children.'} ■ The plaintiff therefore prays that said marriage between the plaintiff and defendant may be declared null and void^ and that said marriage was contracted in good faith and with the full belief that the said A. D. was [dead or di- vorced], and that said children be declared legitimate, and for such other relief as may be just and equitable. A. B., by , her Attorney. [^Add the required verification.'] § 757. Petition for maintenance of child after divorce. — The following petition has been sustained as stating a cause of action against the husband for the maintenance of a child after a decreee of divorce in which the wife was allowed permanent alimony and the custody of the child, but made no provision for the support of the child : ^ " The plaintiff, I. P., for her petition against the defend- ant, J. P., says that on or about the day of , 18 — ,, she was married to the defendant; that there was issue of said marriage a son, A. P., who still lives, and is now ■ years of age ; that at the ■ term of the court of common pleas in and for the county of , in the state of , such proceedings were had by said court, in a certain action for divorce therein pending, in which action said plaintiff herein was plaintiff and said defendant herein was defendant; that said plaintiff was, on account of the misconduct and ill treatment and neglect of said defendant, by the judgment of said court of common pleas, divorced from said defend- ant, and awarded ' the custody, nurture, education and care of said minor child,' A. P. " Plaintiff further says that ever since said decree of di- vorce was entered, said plaintiff and defendant have lived separate and apart, and said A. P., son of the said defend- ant, has been boarded and clothed and cared for by the plaintiff, and that such boarding, clothing, care and atten- tion so furnished said son of the defendant by the plaintiff were necessary and appropriate to his comfort and condi- tion in life, and were of the value of not less than dol- lars per year. " Said plaintiff further says that at the time said decree 1 Sustained in Pretzinger v. Pretzinger, 45 O. 453, 15 N. E. 471. § T58.] FOfiMS OF PLEADINGS AND DECKEES. 717 •of divorce aforesaid was granted, said defeadant herein was insolvent, but that he has become and now is solvent and Avell able to support his said son. " Plaintiff says that there is due and owing her from the defendant for said boarding, clothing and care, a specific ac- -count of which is hereto attached, marked Exhibit ' A,' the sum of dollars, and interest; wherefore said plaintiff prays judgment against said defendant," etc. In this action it was held that the following answer did not state sufficient facts to constitute a defense to the above petition : " That plaintiff in said cause, in county common pleas court, asked that the care, custody and nurture of their said child be awarded to her, and that reasonable alimony be decreed her for the support of herself and their said child. That on the final hearing thereof the court decreed to the ■said plaintiff a divorce on the grounds of gross neglect of duty, and for no other cause, and he denies that said divorce was granted on account of ill treatment of plaintiff by this defendant. " That the said court further decreed to plaintiff the care and custody of their said child at her special request, and against the wishes and requests of this defendant, and until the further order of said court, and decreed permanent ali- mony, in the sum of — — - dollars, in addition to the sum of ■ dollars in said cause allowed as temporary alimony, which said court found to be a reasonable sum for the sup- port of herself and said child, as prayed for in her said peti- tion ; and that this plaintiff then and there appeared in open 'Court and agreed to accept said sum, and did then and there .accept said sum in fuU satisfaction of all alimony that she was or might be entitled to in the premises." § 758. Petition to set aside a fraudulent conveyance. — The petition should allege all the facts necessary to state a cause for divorce, and also sufficient facts to constitute a cause of action, as in the ordinary cases. The following- petition has been sustained as stating a cause of action when assailed by a general demurrer, and because the causes of action were improperly joined. The petition Avas in the usual form of a petition for divorce, and also alleged that the husband had, with the proceeds of the wife's prop- erty, purchased certain property, and had directed the title 718 FOKMS OF PLEADINGS AND DECREES. [§ 758, to be placed in the name of another in order to defeat her claim to the property, and proceeds, as follows : " That the defendants, fraudulently contriving and com- bining together to chea;t and defraud this plaintiflf, and ta prevent her recovery of and from the defendant CD. sup- port for herself and children, alimony, suit money, and the- avails of the sale of the property received by him as afore- said, caused the said E. F. and W . F. to deed the said real estate so purchased and paid for by the defendant 0. D., as aforesaid and hereinbefore described, to the defendant A. D.,, and the defendant A. D., in pursuance of said fraudulent purpose and design, accepted said deed and caused the same to be recorded on the day of , 18 — , in the office of the register of deeds for Dane county^ "Wisconsin, in volume of Deeds, on page ." " The plaintiff further shows that the defendant A. D. knew the plaintiff and defendant C. D. while they lived to- gether as man and wife in the state of Massachusetts, and before their removal to the state of Wisconsin, and knew the relation that subsisted between them." " The plaintiff further shows, upon information and belief,, that the defendant A. D., prior to the purchase of the prop- erty of the said E. F.'and "W". F. by the defendant 0. D., as hereinbefore stated, knew that the defendant C. D. took the avails of the sale of the plaintiff's property in Massachu- setts, as hereinbefore alleged, and that he brought the same to Wisconsin, and at the time of said purchase knew that the same was used in paying the purchase-price of the "real estate hereinbefore described." "The plaintiff further shows that the defendant 0. D. has threatened that if this plaintiff in any way interfered with, or commenced proceedings against him, he would dis- pose of all his property, leave the country and never return." " The plaintiff further shows that she has now no prop- erty in her own right, but is entirely dependent for the sup- port of herself and children, and their edacation, upon her own exertions and the kindness of her friends; that the present value of the property of the defendant C. D., as she is informed and believes, is about dollars ; that the real estate hereinbefore described has been much improved since the same was purchased by the defendant C. D., as before stated, and the same is now worth a,bout - — - dollars." The prayer was for divorce and alimony, and that said, conveyance be set aside, and for general relief.' 1 Damon v. Damon, 28 Wis. 510. §§ 759, 760.] FOEMs OF pleadings and deceees. 719* §769. Petition for alimony without divorce. — Where the statute permits alimony -without divorce in certain cases,, the petition must allege one of the statutory causes, and must conform to the provisions of the statute.^ "Where the- application is made' in a court of equity, the petition must allege- sufficient facts to show a justifiable cause for sepa- rating from the husband and the necessity for separate maintenance. The following petition -was held sufficient, although it does not allege the ability of the husband to pay alimony. After alleging a marriage and cohabitation, the petition continued in substance as follows ; " That about defendant commenced to abuse and ill treat plaintiff, calling her a thief, and demanding explana- tions, and informing her that she could no longer live -with him, or be supported by him, unless explanations of his ac- cusations -were made, of which plaintiff -was not guilty; " That on account of the violent abuse and unreasonable language of defendant, plaintiff was compelled to seek board and lodging elsewhere ; " That after plaintiff was compelled to leave defendant's, home, he circulated among her friends and neighbors false and scandalous stories concerning plaintiff's chastity, know- ing them to be false and without foundation ; " That during the last year of plaintiff's living with de- fendant he ill treated her to such extent as to render her living with him detrimental to her health ; " That defendant peremptorily refused to support plaintiff" or allow her in his house; and that plaintiff has no property^ and is dependent on her own labor for support, and is un- able to obtain employment, and compelled to incur indebt- edness against defendant for board and lodging." ^ § 760. Applications for alimony. — The application for permanent alimony is a part of the petition or cross-petition for divorce.'^ The application for temporary alimony is gen-' erally in the form of a motion supported by affidavits and the pleadings. The following has been suggested as a proper 1 Arnold v. Arnold (Ind.), 39 N. E. also, allegations in Earle v. Earle^ 863. See form of petition in Carr 27 Neb. 277, 43 N. W. 118, V. Carr, 6 Ind. Ap. 377, 33 N. E. 805. ^ gee forms of petitions. 2 Finn v. Finn, 62 la. 482. See, '720 FOEMS OF PLEADINGS AND DECEEES. [§ T60. •form for the application for temporary alimony, but it would .seem that some of the facts alleged appear of record and in the pleadings, while the remaining facts could be properly set up in affidavits. Petition for alimony pendente lite where the wife is plaintiff. 1. A. B., the plaintiff herein, respectfully states to the <;ourt that on the day of , 18 — , she commenced an a,otion in this court against 0. D. for a dissolution of the marriage relation existing between them, upon the ground of on the part of said defendant. A copy of the petition is hereto annexed and made a part hereof. 2. On the day of , 18 — , said defendant answered ^he petition of the plaintiff in said action, denying the charge of therein made,_ but the plaintiff alleges that said ■charge is true, and she will be able to prove the same on the trial of said cause. 3. The plaintiff is entirely without means to carry on this action or to support herself^ during its pendency, and [state the facts in regard to the number and age of child/ren if in care of'wife\. 4. The defendant is possessed of the following real estate, to wit: [desGJ'ihe prermses\ which the plaintiff has reason to beheve is free from incumbrances and is of the value of dollars, and is also possessed of personal property to the value of dollars. The plaintiff therefore prays that the defendant may be [required to pay the plaintiff a reasonable sum for her main- tenance and support during the pendency of the action, and £uch further sum as will enable her to carry on this action. [ Verification.'] A. B. Petition for alimony pendente lite where wife is defendant. 1. Tour petitioner respectfully states to the court that on the day of , 18 — , A. B. commenced an action in this court against her for a dissolution of the marriage rela- tion existing between them, upon the ground of adultery. 2. On the day of , 18 — , your petitioner iiled an answer to said petition, denying all the allegations therein except the allegation as to the marriage between the plaint- iff in said action and the defendant. 3. [Continue as in preceding fiorm, changing the language to conform to the facts.'] ^ 1 Maxwell's Pleading and Practice, p. 659. § Y61.J FORMS OF PLEADINGS AND DECEEES. 721 According to the practice in England the proceedings for alimony require a separate petition and answer, as such ques- tions cannot be tried before a jury in an action in which the co-respondent is a party. The following form has been prescribed by the courts for applications for both temporary •■and permanent alimony : Petition for alimowy. In the High Court of Justice. Probate, Divorce and Admi- ralty Division. The day of , 18—. A. B. V. C. B. The petition of C. B., the lawful wife of A. B., showeth : 1. That the said A. B. does now carry on, and has for many years past carried on, the business of a at , and from such business he derives the net annual income of £ . 2. That the said A. B. is now, or lately was, possessed of, or entitled to, proprietary shares of the Railway "Company, amounting in value to £ , and yielding a clear annual dividend of £ . 3. That the said A. B. is possessed of certain stock in trade in his said business of a of the value of £, . [iw s(Mne manner state particulars of any other po'operty which the husband may possess."] Your petitioner therefore humbly prays : That your lordship wUl be pleased to decree her such sum •or sums of money by way of alimony pendente lite [or, per- manent alimony] as to your lordship shall seem meet. § 761. Order for temporary alimony. — The order for temporary alimony may include a provision for the -custody and maintenance of the children during the litigation and also a specific sum for attorney's fees. The order may be to pay certain sums to the wife or to some person or officer for her use. In the western states the usual practice is to require all such payments to be made to the clerk of the court. In case the payments are not made as required, the •clerk may, upon request of the plaintiff, issue execution .against the defendant, as the order is a judgment in form 46 T22 FOEMS OF PLEADINGS AND DECEEES. [§ 763* and effect. The following order will suggest the necessary provisions of the ordinary order for temporary alimony : " It is ordered, adjudged and decreed that on or before the day of , 18 — , the said defendant deposit with the clerk of this court the sum of $100, for the use and bene- fit of the plaintiff for her costs herein to accrue, or which may accrue in said cause ; also, f or-the plaintiff personally, for her personal use and benefit, the sum of $60; also, t&e further sum of $300 for plaintiff's counsel and attorney's, fees herein, — each and every of the aforesaid payments to- be made on or before the day of . " It is further ordered, adjudged and decreed that on this day of , and every calendar month during the pendency of this suit, and so until the further order of the' court, the defendant pay to the clerk of this court, for the plaintiff personally, the sum of $25 ; that the defendant also, from this time forthwith, in addition to the monthly allow- ance due, furnish for the plaintiff and her children all reason- able food, fuel and clothing, or provide for her obtaining the same on his credit, and allow to her and said children the use of the house and residence mentioned in the plead- ings herein, and now occupied by them, and the furniture and furnishings therein, as their abiding place and home, with- out let or hindrance ; and, in case of failure of the said de- fendant to furnish food, fuel and clothing as aforesaid, or to furnish credit whereon and whereby plaintiff may pro- cure the same, plaintiff has leave, without additional showing^ to apply for an increase of the aforesaid monthly allowance; this without prejudice to the rights of either party here- after to apply for a modification of this order as far as the a,f oresaid monthly allowance is concerned. " It is further adjudged and decreed that in case of fail- ure on the part of the defendant to pay any one or more of the aforesaid sums of money, or any monthly allowance aforesaid, the plaintiff may have execution to collect the same, with costs of issuing said execution, to be taxed, with- out prejudice to her rights to proceed against the defendant as for contempt." ^ § 762. Decrees of absolute divorce. — The decree of di- vorce should contain the findings of the court, and should state the nature of the divorce granted and the cause for » This order was affirmed in Cowan u Cowan, 19 Colo. 316, 35 P. 347. § 762.] FOEMS OF PLEADINGS AND DECEBES. 723 ■which the decree was granted. It should be based on the pleadings, and should show whether the divorce is granted on the petition or cross-petition. If no appearance was made by defendant, the nature of the service may be stated as one of the jurisdictional facts. The following form may be followed where a decree is to be rendered in contested cases : [Title of cause.^ This cause came on to be heard on this ■ day of 18 — , upon the petition, answer and cross-petition and reply, and the evidence submitted in open court by both parties, and was submitted to the court; on consideration whereof the court finds that the plaintiflf has been a resident of county and state of for years before filing her petition herein; that the parties were married as alleged in said petition; that the defendant committed adultery as alleged in said petition. The court further finds that the plaintifl' did not condone said adultery, and has not wilfully deserted the defendant as alleged in said answer and cross- petiti6n, and said cross-petition is hereby dismissed. Wherefore it is ordered, adjudged and decreed by the court that the marriage relation hei-etof ore existing between , the said plaintiiBf, and , the said defend- ant, is hereby dissolved, and the said parties are, and each of them is, released from the bonds of matrimony. It is further ordered [insert jarovisions of decree concerning alimony, etci]. The following decree was held valid in a recent case, although it does not reveal the cause for divorce, and con- tained no special findings of fact, but a general finding that the material allegations of the complaint are true : ' " This cause having been brought on to be heard this 20th day of November, 1883, upon the complaint herein taken as confessed by the defendant, whose default for not answering has been duly entered, and upon the answer of the state of Oregon being filed herein, and upon the proofs; taken herein, and upon the report of Charles T. Hyde, referee in this case, to whom it was referred by order of this court duly made the 12th day of November, 1883, to take the 1 Wilhite V. Wilhite, 41 Kan. 154, 31 P. 173. 724 FOKMS OF PLEADINGS AND DECEEES. [§ 763. ])roof of the facts set forth in the complaint, and to report the same to the court. . " And the said referee having taken the testimony by written questions and answers, and reported the same to the court on this 20th day of November, 1883, from which it appears that all the material allegations of the complaint are sustained by testimony free from all legal exceptions as to its competency, admissibility and sufficiency. " And it also appearing to said court that the said defend- ant and T. C. Hyde, the district attorney of the sixth judi- cial district of Oregon, was duly served with process, and all and singular the law and the premises being by the court here seen, heard, understood and fully considered. "Wherefore, it is here ordered, adjudged and decreed, and the court, by virtue of the power and authority herein vested, and in pursuance of the statute in such cases made and provided, does order, adjudge and decree that the raar- ria,ge between the said plaintiff, Daniel W. "White, and said defendant, Mary A. White, be dissolved, and forever held for naught, and the same is hereby dissolved accordingly, and the said parties are, and each of them is, freed and abso- lutely released from the bonds of matrimony, and all the obligations thereof. " And it is further ordered and decreed that the custody of the minor children of said marriage, to wit, Thomas E. White, aged fifteen years, RoceUa V . White, aged eleven years, Edward A. White, aged eight years, and Claudius E. White, aged seven years, be, and the same are hereby, awarded to the plaintiff." § 763. Default upon constructive serA'ice. — Where the decree of divorce is rendered upon default, and the service upon the defendant is not personal but some form of con- structive service, the decree may recite the nature of the Service and the default of the defendant, together with the usual findings. {Title of cause.] 'Now on this day of , 18 — , this cause, came on to be heard, the plaintiff appearing in person and by her at- torney, but the defendant, being duly called, appears not but makes default; whereupon this cause is submitted to the court upon the proof of publication and the petition of the plaintiff and the evidence; on consideration whereof the court finds : That defendant was dulv served with summons §§ 764, T65.] FOEMs of pleadings and decrees. 125 and a copjr of said petition by delivering the same to the defendant in the city of , and state of [or, that due notice was given to the defendant by the publication of summons] ; that defendant has failed to answer or demur to said petition; that the plaintiff has been a honajide resident of — county, in the state, before the filing of her petition herein [or, has resided in the state of , years before the filing of her petition herein, and was, and now is, a resi- dent of county, in the state of ] ; that on the day of the plaintiff was la^vfuUy married to the de- fendant ; that on the day of • the defendant wil- fully deserted the plaintiff without just cause and has ever since absented himself. Wherefore it is ordered, adjudged and decreed by the court that the marriage existing between the said plaintiff, , and the said defendant, , be dissolved, and the same is hereby dissolved accordingly, and the said parties are, and each of them is, freed and absolutely re- leased from the bonds of matrimony and all the obligations thereof; and it is further ordered and decreed that this cause be dismissed without prejudice to the plaintiff as to alimony and division of the defendant's property. §764. Decree of separation or limited divorce. — The following form of a decree of separation is suited to the l^ew York practice : i It is therefore ordered, adjudged and decreed that the plaintiff, A. B., the lawful wife of the defendant C. B., be and is hereby forever separated [or, separated until the further order'of the court] from said defendant, his bed and board, upon the ground of extreme cruelty [or other cause] ; provided, however, that the parties hereto may, at any time hereafter by their joint petition, apply to this court to have this judgment modified or discharged. ' It is further ordered and adjudged that neither of said parties is at liberty to marry any other person during the life of the other party. [Add further provisions relating to alimony and custody of children.'] § 765. Decree of nullity. — The decree of nullity is simi- lar in form to the decree of divorce, and should contain ap- propriate findings, and state the cause of annulmeht. [Title of eaiise.] This cause came on to be heard' on this day of , VM FOEMS OF PLEADINGS AND DECEEES. [§ 166. 18 — , upon the petition, answer and reply, and the evidence submitted by both parties in open court ; on consideration whereof the court finds that the plaintiff has been a resident of the state of for years before the filing of her petition herein ; that the parties were married as alleged in said petition ; that at the time of said marriage the defend- ant had a wife living, and not divorced from said defendant. The court further finds that the marriage of the parties in this action was contracted in good faith, and in the belief that the former wife was dead. It is therefore ordered, adjudged and decreed that the marriage contract between said parties be and the same is hereby declared null and void, and of no force and effect ; and the same is hereby set aside and annulled, and the said parties released from the obligations of the same. And it is further decreed that the issue of said marriage, to wit, , born or begotten before the commence- ment of the action, are hereby declared legitimate, and en- titled to succeed to the real and personal estate of their mother, ■ , the plaintiff herein, as legitimate chil- dren. And it is further ordered [provision restoring wife's prop- erty]. § 766. Decree for permanent alimony. — The decree for permanent alimony may be entered as a part of the decree granting divorce or separately. The foUowmg form may be added as a part of the decree of divorce : It is furthered ordered that the defendant pay to the clerk of the court for the use of the plaintiff the sum of dol- lars on the 1st day of — ■ — , 18 — , and on the 1st day of , 18 — [semi-annually or quarterly], for the support and main- tenance of the said plaintiff during her natural life or until she shall again marry ; such sums not to be in lieu of her right of dower in the defendant's real estate or in lieu of her interest in the personal estate of said defendant in case of his death intestate. It is further ordered that the defendant give security to the clerk of this court, to be approved by said clerk [or, by this court], for the payment of said alimony, and the said allowance for the support of said chOdren. It is further ordered that in case the defendant fails to make the said payments as provided herein, the clerk of said court may, upon the request of the plaintiff, issue exe- cution for the collection of payments then due. § 166.1 FOEMS OF PLEADINGS AND DEOEEES. 727 And it is further ordered that in case of a change in the circumstances of either of the parties to this action, either •of them may apply to this court for such modification of this decree as may seem just and equitable. The following form may be used where the permanent alimony is declared to be a lien upon real estate and execu- tion awarded : "And it is further ordered, adjudged and decreed that defendant pay to plaintiff's attorney the sum of $100 as counsel fees of plaintiff in this action; and that the said defendant pay to the clerk of this court, for the use of the plaintiff, as plaintiff's costs in this action taken, the sum of ■$28.05 ; and that the said defendant pay to said plaintiff the sum of $1,600 in full for all future ahmony for the support of herself and her two minor children ; and that said sum to be paid, amounting in the aggregate to the sum of $1,628.05, be and the same is hereby declared a lien on the following described real property which is hereby declared to belong to the defendant: [description of property.'} That all ot said sums may be paid to the parties entitled thereto, or to the clerk of this court for their use, and if the same be not paid, and the receipts therefor filed with the said clerk Nvithin twenty days from the date of this decree, execution or order of sale of the said property may issue thereon, on demand of the plaintiff, under which execution or order of sale the said real property, or so much thereof as will satisfy plaintiff's demand, to wit, $1,628,05, may be sold in the manner prescribed by law for the sale of real property under execution." ' The decree for permanent alimony may be secured by bond or mortgage upon real estate. In the following decree the securities are to be deposited with trustees : " It is further adjudged that the plaintiff forthwith pay to the attorney for the defendant, for her as alimony, $2,100, •and to her, as further alimony, the further sum of $200, on the 1st day of January, 1885, and the further sum of $400 on the 1st day of July, 1885, and the like sum of $400 on the first day of each and every six months from said 1st day of July, 1885. 1 This decree was held valid in ney's fee was payable to the attor- Eobinson v. Eobinson, 79 CaL 511; ney instead of to the clerk for the but irregular because the attor- use of the wife. 72S FOEMS OF PLEADINGS AND DEOEEES. [§ 767... " It is further adjudged that, to secure the payment of said serai-annual allowance of alimony of $iOO, Geo. Jess & Co., bankers of "Waupun, Wis., are hereby constituted and' appointed trustees, to take hold of the following securities^ to wit : The plaintiff shall forthwith execute to said Geo. Jess & Co. a mortgage in trust on his homestead in the city of "Waupun, "Wis., and shall forthwith deposit with them, and. keep on deposit with them, for the same purpose, at least $6,000, face value, of good notes secured bj^ good real-estate- mortgages." ^ This form of security will not be preferred to the decree- which is declared a lien upon real estate, for, in case of a failure to pay the alimony as it becomes due, execution may be awarded ; while in the case of alimony secured by mort- gage, the wife may be compelled to foreclose her securities. § 767. Decree awarding custody of children and use of homestead. — - The following decree was entered by the su- preme court of Colorado in a contested case, and may be use- ful in similar cases : ^ " It is now ordered, adjudged and decreed by the court that the defendant, Marion A. Luthe, shall, until further order of the court, retain the custody and control of the- said children of the parties hereto, during- their njinority, to support, care for and educate them to the best advantage- the condition and circumstances of the plaintiff and defend- ant will allow. " That for this purpose defendant shall have the possession of lot 25 and south half of lot 26, block 150, Adea's addition, to the city of Denver, Arapahbe county, and state of Colo- rado, and the improvements thereon/to hold, occupy and enjoy the same, together with the issues, rents and profits, thereof^ without let, hindrance or interference in any man- ner on the part of the plaintiff. That plaintiff shall keep the dwelling-nouse situate on said premises well insured at his own expense, in some fire insurance company of good repute for financial responsibility. He shall pay the taxes thereon, and shall keep the interest paid up on the incum- brance of $3,800 on said premises. " And further, plaintiff shall pay or cause to be paid to» defendant, within sixty days from the entry of this modi- iMaxweU v. Sawyer (Wis.), 63 2 Luthe -y. Luthe, 13 Colo. 421, 2 li N. W. 383. P. 467. § 767.] FOEMS OF PLEADINGS AND DEOEEES. 739' fied decree, tlie sum of $260 on account of the furniture taken by him from said defendant; and plaintiff shall also pay or cause to be paid to the defendant, on or before the 15th day of December of each and every year, the sum of $50 for herself, and the suni of $25 on account of each of said minor children then remaining in her custody and con- trol as aforesaid. " In case the plaintiff shall fail at any time to pay to de- fendant any of the sums of money hereinbefore specified, or any part thereof, when the same shall become due and pay- able, the amount so remaining unpaid shall constitute a lien in favor of defendant against plaintiff's undivided half in- terest in said lot 25, and south half of lot 26, aforesaid, and the same may be foreclosed by proper civil action.^ " Defendant may also at any time have execution, garnish- ment or other proper proceedings against plaintiff for any such sum or sums of money, or any part thereof, remaining due and unpaid according to the terms of this decree. " In case the plaintiff shall fail to keep said dwelling-house insured as aforesaid, and any loss shall thereby befall said -estate, such loss shall be a lien against his interest in said premises, and in favor of the defendant, and the amount of said lien may be established by a proper civil action, and foreclosed accordingly. " If plaintiff shall suffer said premises, or any part thereof, to be sold for taxes or for default in payment of said incum- brance of $3,800, or any part thereof, or any interest thereon, the loss or sacrifice on account of such sale or sales shall, as between the parties hereto, be borne wholly by the said plaintiff; and the defendant may become the purchaser at such sale or sales, or may redeem or repurchase said prem- ises, or any part thereof, from such sale or sales, for the benefit of her individual or separate estate, the same a& though she were not a tenant in common with plaintiff. "The plaintiff may renew said incumbrance from time ta time, as may be necessary, but not for a greater sum than $3,800, nor at a rate of interest greater than ten per cent, per annum; and defendant shall joiain the execution of any necessary securities thereof; and plaintiff shall not in any manner interfere with defendant's enjoyment of said prem- ises, or any part thereof, for the purposes aforesaid, until the further order of the court. " If plaintiff shall faithfully perform the matters required of hini by this decree while said defendant shall have the custody of said children as aforesaid, his undivided half inter- 1 Luth^ V. Luthe, 13 Colo. 431, 31 P. 467. "730 FORMS OF PLEADINGS AND DECBEES. [§ 768. est in said premises shall not be deemed to be otherwise ■affected hereby, and the same shall be preserved for his ulti- mate use and enjoyment; provided, nevertheless, that, if plaintiff shall elect so to do, he may convey to defendant by good and sufficient warranty deed, subject only to the in- cumbrance and hens hereinbefore mentioned, aU his right, -title and interest in and to the premises above described, so that defendant shall become the absolute owner of the whole thereof, subject only to said liens and incumbrance, with full authority to use, sell, convey, lease or incumber the same, as she shall deem for the best interest of herself and said minor children ; and upon the execution and de- livery of the conveyance aforesaid within twenty days from the entering of this decree, plaintiff shall be and stand re- lieved from each and every of the commands, directions and requirements hereinbefore expressed, touching the payment of interest, insurance, taxes and other allowances on account of alimony and maintenance for said defendant, remaining ■subject only to such obligations as may thereafter be de- volved upon him in respect to his surviving children during the minority, in case of necessity or of a substantial change in the condition or circumstances of the parties thereto. " This decree shall stand in lieu of all former decrees as to the custody of the children, use of realty, recovery of personalty and alimony, and maintenance for defendant and said children. The former decree of this court, in reference to visits to and by the children, and the conduct of the par- ents in thejLr intercourse with the children, shall be and re- main in full force and effect, and shall be enforced by the oourt when either party shall, upon proper notice to the other, show that there has been a violation thereof. This decree may be further modified by the court upon due no- tice to the parties and opportunity to be heard, as the con- dition or circumstances oi the parties may change, or as the best interests of the children may require." § 768. Decree restraining sale of property and restor- ing wife's property and awarding use of homestead. — After the usual decree of divorce, the following provision may be added to the decree where the wife prayed for the return of her property, the use of the homestead and a per- petual injunction against judgments against the husband alleged to be fraudulent : " And it is further ordered and adjudged : " That the said judgments, rendered as aforesaid in the § 768.] FOEMS OF PLEADINGS AND DECREES, T31 district court of , , in favor of said J. B. and J. U., be and they_ are hereby declared to be fraudulent and void. "That said executions and levies constitute no lien on said premises; that said H. B., J. B. and J. U. be and they are hereby enjoined and restrained from collecting or at- tempting to collect said judgments, or from selling or at- tempting to sell said premises or any part thereof, or from mortgaging or in any way incumbering said property or any part thereof, without the assent of said plaintiff A.B. " That said plaintiff has the right, conjointly with said ■defendant H. B., to the possession and occupancy of the fol- lowing premises heretofore occupied as a homestead by the plaintiff and defendant, to wit : [description of property^ " That plaintiff have the issues, rents and profits of the following described premises, and that she have the right to rent and control the same : [description of property.'] " That the defendant H. B. return to the plaintiff, and that she have as her separate and absolute property, aU the house- hold goods in the house of said homestead or belonging thereto. [Description of personal property .^ " That said defendants, H. B., J. B. and J. U., be, and they are hereby, enjoined and restrained from in any way inter- fering with said plaintiff in the peaceable possession of the said homestead premises, to wit: [description of property'], or in renting, controlling or receiving the issues, rents and profits of the said property. " That plaintiff have and recover of and from defendant H. B. the sum of $50 as her reasonable attorneys' fees herein, and that defendant H. B. pay the costs of this ac- tion, taxed '($87.60)." > 1 Affirmed in Busenbark v. Biisenbark, 33 K^n. 573. EVIDENCE. 774 In general. 775. Default. 776. Depositions. 777. Proof of marriage. 778. Husband and wife as wit- nessefs. 779. Necessity of corroborating testimony of a party. 780. What corroboration is suffi- cient. 781. Confessions and admissions. 782. Privileged communications between husband and wife. 783. Privileged communications- to physicians and attor- neys. 784 Testimony of children of the parties. 785. Relatives and servants as witnesses. § 774. In general. — The suit for divorce is sui generis} It is not a proceeding to punish crime,^ but is a special pro- ceeding in a court of equity, and therefore conforms to the chancery practice except in certain instances which are noted in this treatise in the treatment of various subjects. As it is a civil suit it is not governed by the rules of criminal procedure, and the matrimonial offense alleged as a cause for divorce need not be proved beyond a reasonable doubt. ^ It is not necessary to repeat here the rules of evidence with reference to each cause for divorce, and each of the de- fenses to the suit for divorce. A reference to the sections in which the evidence of each cause for divorce has been noticed may be appropriate here.* 1 See authorities cited in § 4 2§6. 3 Thus, adultery is both a cause for divorce and a statutory crime, but adultery need not be proved beyond a reasonable doubt. See Adultery, § 142. For sufficiency of evidence of adultery, see § 140. That circumstances must be in- compatible with innocence, see § 141. Whether the fact of adul- tery must be a necessary conclusion from the evidence, § 143. Proof of intent, see §§ 163-176. * Desertion, §§ 102-110. Adul- tery, §§ 140-162. Evidence of in- § T75.] EVIDENCE. 733 In suits for divorce the court may vary the order of the iutroductiou of the testimony, and rulings in this regard will not be held erroneous unless there has been an abuse of dis- <;retion manifestl^^ prejudicial to the complaining party. The , following is suggested as the convenient and logical order of the evidence in the suit for divorce, as it follows in the order of the usual allegations of the petition : 1. Proof of the required residence in the state.^ 2. Proof of marriage of the parties.^ S. Proof of the cause for divorce.' 4. Proof of the allegations concerning alimony and divis- ion of the property and the custody of the children.^ In a contested suit for divorce questions relating to alimony can- not be tried with the issues relating to the causes for divorce without confusion, especially where there is a trial by jury. In such cases the court may hear the evidence relating to the cause for divorce, and a decree of divorce may be entered reserving the question of alimony for further consideration. § 775. Default. — When a case is heard upon default the court should protect the interest of the pubHc and of the ■defendant by requiring strict proof, not only of the cause for divorce, but of aU facts required by the statute, such as residence, good faith and the good conduct of the complain- ant.' The fact that the defendant has not appeared or an- swered does not supersede the necessity of proof of every fact necessary to entitle the plaintiff to the relief demanded." tent, §§ 163-176. Witnesses in Permanent alimony, §§ 900-917. adultery oases, §§ 190, 301. Cruelty, Custody and support of children, §§ 338-343. Habitual drunkenness, §§ 975-985. §358. Recrimination, § 443. Con- 5 Reed v. Eeed, 39 Mo. Ap. 473; donation, §§ 463-468. Connivance, Suesemiloh v. Suesemilch, 43 111. §§ 488, 489. Collusion, § 510. Pre- Ap. 593. sumptions in favor of marriage, ephelan v. Phelan, 13 Fla. 449; § 580. Barry v. Barry, 1 Hopkins Ch. 118; iPor proof of residence or domi- Scott v. Scott, 17 Ind. 309; Robin- ■cile, see Domicile, §§ 40^8. son v. Robinson, 16 Mich. 79; Hanks 2 See §777. '"■ Hanks, 3 Edw. Ch. 469; Latham 3 See references swpm. v. Latham, SO Gratt. 307; Palmer -i Temporary alimony, §§ 850-863. v. Palmer, 1 Paige, 276; Lewis v. Y34 EVIDENCE. [§ 775- The decree by default need not recite that a hearing was had or that the evidence was sufficient.^ The court should be satisfied before hearing the proofs that it has jurisdiction to render a decree. Care in this respect may prevent many of the complications that disturb titles and render second marriages void.^ The default should be set aside in all cases where there is any showing of a defense, although the de- fendant may have been guilty of laches that might pre- clude her in ordinary cases.' The court has a wide discretion in actions for divorce, and will exercise its power in setting aside a default in any case where it is probable that the de- cree should be modified or vacated.* In California it is held that no showing of a defense need be made.^ But it seems absurd that a court should act in the matter unless the ne- cessity of a new trial is made to appear.^ If a showing is made the issue should be tried, for the law favors trials upon the merits, especially in divorce suits, where the inter- ests of the state demand that aU the facts be adduced, and that no divorce be granted except for adequate causes and where no valid defenses exist.' Where such showing is made or an answer tendered, it is manifest that a hearing should be granted, and that the merits of the aipplication should not be determined by counter-affidavits.' When the default is set aside the case is tried in the usual manner.* The fact that plaintiff has married after the decree was entered will not deprive the defendant from having the de- Lewis, 9 Ind. 105; Welch v. Welch, 5 McBlain v. McBlain, 77 CaL 507,. 16 Ark. 527; Montgomery ju. Mont- 20 P. 61; Wadsworth v. Wads- gomery, 3 Barb. Ch. 132. ' worth, 81 Cal. 182, 22 P. 648; Cot- 1 Young u Young (Tex. Civ. Ap.), treU v. Cottrell, 83 Cal. 457, 23 P. 23 S. W. 83. 581. -'See Pinckney v. Pinckney, 4 6 Blank w. Blank, 107 N. Y. 91, 13 la. 324. N. E. 615. 3 Smith V. Smith, 20 Mo. 166; 'See contra, Savage v. Savage,. Brown -y. Brown, 59 IlL 315; Bowan 10 Or. 331. V. Bowan, 64' 111. 75; Mumford v. SThelin v. Thelin, 8 111. Ap. 421. Mumf ord, 13 R. L 19. » Chase v. Chase, 19 N. Y. Supp.. * Simpkins v. Simpkins, 14 Mont. 269. 386, 36 P. 759. §§ YY6, 117.'] EVIDENCE. 735 fault set aside.^ Where the wife enters an appearance and moves to set aside the default because the return of the sheriff is false and she had no notice of the suit, and tenders an answer to the plaiintiff's petition, the default will be set aside after a period of six months, although the statute pro vides that the court has control over its decrees of divorce for six months after entry.- In some states the courts are prevented by statute from vacating decrees of divorce after the term in which they are rendered.' /§776. Depositions. — Unless there is some provision of the statute to the contrary, depositions are admissible as in other cases. The right to introduce such testimony is con- ferred by statute, and does not exist at common law. The general provision of the statute authorizing and regulating' the taking of depositions in all civil cases is broad enough to include suits for divorce.^ The rules of the chancery practice are followed in som6 states.' The reports do not throw much light upon the method of taking depositions,, and the practitioner must consult the statutes of his own state and local rules of practice. / § 777. Proof of marriage. — In every action for divorce the marriage must be proved. If there was no marriage, there can be no breach of marital duties, and no relation t* suspend or dissolve. To some extent a decree of divorce affirms the marriage and then decrees that such relation is- dissolved. Such decree is in some instances competent evi- dence of the marriage." Where there is a valid prior mar- riage undissolved, the fact that one party to a subsequent marriage has obtained a decree of divorce wiU in no way ■Scripture v. Scripture, 70 Hun, *Lattier u Lattier, 5 Ohio, 538 r 432,24 N. Y. Supp. 301; Simpkins Anonymous, 1 Yeates, 404; Page u. Simpkins, 14 Mont. 386, 36 P. 759. v. Page, 51 Mich. 88; Looker v. 2 Locke V. Locke (R L), 30 A. 422. Looker, 46 Mich. 68. 5 See on this point cases cited in 5 gee authorities cited in Flavell § 1050. When default vacated v. Flavell, 20 N. J. Eq. 211. where the service is constructive, eHolbrook v. S., 34 Ark. 511 ^ see § 835. When decree vacated Moore v. Hegeman, 92 N. Y. 521. on account of fraud, g§ 1050-1057. •736 EVIDENCE. ' [§ 777. affect the validity of the second marriage.' The party to the first marriage is not bound by a decree of divorce dis- solving the subsequent marriage, and no inference should •be drawn from such decree. The admission of the parties that they are husband and wife is not sufficient proof of the marriage.^ Bat where there is such admission in the pleadings, mere proof of long cohabitation and repute is sufficient.' If the marriage is denied, the issue thus raised should be first determined before any evidence is heard tending to prove a .cause for divorce. If there is no mar- riage the action may be dismissed.* But the interest of the state requires that the alleged marriage be declared null in the same action. Generally, when the marriage is denied, the defendant asks for such relief.' A marriage is presumed valid if it is shown to have been duly solemnized and con- summated.' If the validity of a marriage is affected by a ■decree of divorce, such decree must be proved by, the party alleging it.'' The marriage may be established in actions for divorce as in other actions. It may be proved by witnesses who were ■ present when the marriage took place, and who testify that the marriage was celebrated according to the usual form, although they cannot state the words used.' The testimony of eye-witnesses is sometimes regarded as the best evidence, and admissible without proof that other evidence cannot be produced.^ In some states the marriage may be established 1 Williams v. Williams, 46 Wis. Davis v. Davis, 1 Abb. N. C. (N. Y.) 464; Williams v. Williams, 63 Wis. 140; Blinks v. Blinks, 5 Misc. Eep. -58; Pearce v. Pearce (Ky.), 16 S. W. 193, 35 N. Y. Supp. 768. 271. SFinnu Finn, 63How. Pr. 83. 2 Schmidt v. Schmidt, 29 N. J. « Harris v. Harris, 8 111. Ap. 57. Eq. 496; Williams v. Williams, 8 ' Donahue u. Donahue, 17 111. Ap. Me. 135; Zule v. Zule, 1 N. J. Eq. 578; Dare v. Dare (N. J.), 27 A. 654. 96. See, contra, Fox v. Fox, 25Cal. SKope v. P., 43 Mich. 41; P. v. .587; Harman v. Harman, 16 111. 85. Calder, 30 Mich. 85; Fleming v. P., 3 Morris v. Morris, 20 Ala. 168. 27 N. Y. 329; Lord v. S., 17 Neb. * Mangue v. Mangue, 1 Mass. 240; 536; McQuade v. Hatch, 65 Vt. 482. Simons v. Simons, 13 Tex. 468; 9 Chew v. S. (Tex.), 5 S. W. 373; § 777.] EVIDENCE. 737 by the testimony of one of the spouses.* Marriage certifi- cates are admissible if proved to have been kept in proper custody or by the person asserting the marriage.'' It isi admissible without proof of its genuineness or the official capacity of the person who performed the ceremony.' The contents of the certificate, if lost, may be proved by a wit- ness who can state in substance what it contained.* Before a certified copy of a marriage record is admissible it, must appear that such record was required to be kept by some officer pursuant to some statute.' When the marriage is to be proved by a certificate of a justice of the peace of an- other state, it must be established by other evidence that the signature is genuine, and that he had authority to sol- emnize marriage at the time and place.^ A marriage may be proved by the original license if issued by proper author- ity, and by the indorsement of the officer that he performed the ceremony at a certain time and place, together with satisfactory evidence that the parties cohabited as man and wife, and were reputed to be such.'' The identity of the parties with those named in the record will be presumed from the identity of name.^ In actions for divorce the mar- riage may be proved by cohabitation and repute ' or by S. V. Marvin, 35 3Sr. H. 22; Warner risey v. Wiggins Ferry Co., 47 Mo. V. Com., 2 Va. Cases, 95; Baugh- 521 ; Hutchins v. Kimmell, 31 Mich, man V. Baughman, 29 Kan. 283. 126; Niles v. Sprague, 13 la. 198; 1 Miles V. United States, 103 U. S. Succession of Taylor, 15 La. An. 304; Van Tuyl v. Van Tuyl, 57 313; Stanglein v. 8., 17 O. St. 453; Barb. 235; Woodrich v. Freeman, Bradford v. Bradford, 51 N. Y. 669; 71 N. Y. 601; Brown v. Brown, 143 Abbott v. Abbott, 4 Swab. &T. 254; IlL 409; P. V. Bartholf, 34 Hun, 273; Degnan v. Degnan, 17 N. Y. Supp. S. V. Bowe, 61 Me. 171. 883; Verhalf v. Houwenlengen, 21 2 Gaines v. Green Pond Iron Co., la- 439. 33 N. J. Eq. 86; Gaines v. Relf, 13 ^S. v. Horn, 43 Vt. 30. How. (U. S.) 472. ' Glaser v. Dambman (Md.), 32 3 Camden v. Belgrade, 78 Me. A. 523. 304, 3 A. 653. See contra, Com. v. 8 Jackson v. King, 5 Cow. 337. Morris, 1 Cash. 391. See contra, Wedgwood's Case, 8 * Camden v. Belgrade, 78 Me. 204, Greenl. 75. 3 A. 653. " Bowman v. Bowman, 24 IlL Ap. * Tucker v. P., 123 IIL 588; Mor- 165; Whits v. White, 83 CaL 427, 47 738 " EVIDENCE. [§ Y78. other circumstantial evidence.^ But the presumption which arises from cohabitation and repute may be overcome by any competent evidence.^ It may be shown that such co- habitation was of meretricious origin, and then a marria,ge will not be presumed.' The fact of marriage may be proven by a marriage contract purporting to have been signed by the parties.* § 778. Husband and wife as witnesses. — Under the com- mon law neither husband nor wife could be witnesses in a suit for divorce, because they were both parties and inter- ested in the event of the suit ; and also because they could not testify for or against each other. And at the present time both parties are incompetent as witnesses, unless the statutes permit them to testify.* The fact that the statute confers the right to obtain a divorce for certain causes does not necessarily make the parties competent witnesses.* The reason of the common law seems to have been that the hus- band and wife could not testify for each other, " because their interests were identical ; " nor against each other, be- cause it was against public policy to allow them to do so for fear of creating dissent and distrust between them. The 23 P. 376; Finn v. Finn, 13 Hun v. McDermott, 91 N. Y. 451; Both- (N. Y.), 339; Vreeland v. Vreeland, ick v. Bothick, 45 La. Ann. 1883, 18 N. J. Eq. 43; Houpt v. Houpt, 5 14 So. 293. O. 539; Wright v. Wright, 6 Tex. ' Hunt's Appeal, 86 Pa. 294; Har- 3; Mitchell v. Mitchell, 11 Vt. 184; beck v. Harbeck, 103 N. Y. 714, Hitchcox V. Hitchcox, 3 W. Va. affirming 31 Hun, 640; Badger v. 435; Trimble v. Trimble, 3 Ind. 76; Badger, 88 N. Y. 546; Brinkley v. Jones V. Jones, 48 Md. 891; Barnum Brinkley, 50 N. Y. 184; Van Dusan V. Barnum, 43 Md. 351; Borton v. u Van Dusan, 97 Mich. 70; Ahlberg Borton, 48 la. 697; Kilburn v. Kil- v. Ahlberg, 34 N. Y. Supp. 919. burn, 89 Cal. 46, 36 P. 636; Cross v. < Bates v. Bates, 7 Misc. Eep. 547 Cross, 55 Mich. 280; Clancey v. State v. Behrman (N. C), 19 S. E. Clancey,6S Mich. 303; Peet v. Feet, 330; Sharon v. Terry, 36 Fed. 337 53 Mich. 464. Sharon v. Sharon, 67 CaL 185; S. C, 1 Hamilton, In re, 76 Hun, 200, 27 79 Cal. 633; 84 Cal. 424. N. Y. Supp. 813. 5 Anonymous, 58 Miss. 15; Cor- 2 Chamberlain u Chamberlain, 71 nish v. Cornish, 56 Tex. 564. N. Y. 433; Port v. Port, 70 III 484; shyers v. Ayers, 28 Mo. Ap. 97. Jones V. Jones, 45 Md. 144; Haynes § 778.] EVIDENCE. 739 fact that the parties are living in separation, and their mutual confidence has already been, destroyed by other causes, does not render the parties competent as witnesses against each other.^ Although it would seem that, where the parties are thus estranged, the reason of the common- law rule would not obtain. Generally the parties are made competent witnesses. in all cases by some general statute or provision of the code. These general provisions may be so broad as to include actions for divorce.^ Where the statute permits the parties to testify in all cases except in any " action for divorce on account of adultery," the parties may testify in a suit for divorce on account of the wife's im- potence.' But there are some general statutes not quite broad enough to include actions for divorce. Thus the statute in the Dis- trict of Columbia made all parties and interested persons competent to testify, and provided that : " Nothing in the preceding section shall render ... a husband compe- tent or compellable to give evidence for or against his wife, or a wife competent or compellable to give evidence for or against her husband, in any criminal proceeding, or in any proceeding instituted in consequence of adultery. Nor shall a husband be compellable to disclose any communication made to him by his wife during marriage ; nor shall a wife be compellable to disclose any communication made to her by her husband during marriage." It was held that this, if taken literally, would make the parties to a divorce suit competent to testify, but the subsequent provisions of the section indi- cated a contrary intention.* The husband and wife are not rendered competent by a general statute permitting persons to testify, although " interested in the event of the suit as par- ties or otherwise," because the common-law disqualification of husband and wife is based upon other considerations than in- 1 Dwelly V. Dwelly, 46 Me. 377. ' Barringer v. Barringer, 69 N. C. 2Stebbins v. Anthony, 5 Colo. 179. 348; Berlin v. Berlin, 52 Mo. 151; < Burdette u Burdette, 6 Mackey, Barrier v. Barrier, 58 Mo. 233. 469. 740 EVIDENCE. [§ 778. terest in the event.^ A provision that the husband and wife shall not be incompetent tb testify except as to " confiden- tial commuijications between them " is not clear and explicit enough to change the common law and render the parties competent witnesses in divorce suits.'' The fact that a de- fendant may be required to answer the complaint under oath has been regarded as ground for excluding the testi- mony of the parties.^ Although the statute may permit the parties to testify as in other cases, this will not permit the wife to prove non-access of her husband. The incompetency of such evidence rests not upon the marital relation alone, but upon the ground of public policy and morality.* In some states the party is not competent to testify in actions for divorce on account of adultery except to prove or disprove the marriaare and residence within the state.' The rule excluding the testimony of the parties is espe- cially harsh and dangerous to justice in suits for divorce, be- cause it prevents the defendant from explaining the circum- stances and detailing facts which would otherwise prevent a decree. Marital wrongs are, in- the nature of the -case, generally committed before few witnesses, or while the par- ties are alone, and it will often amount to a denial of jus- tice if the parties cannot relate their version of the affair. Modern legislation has, to some extent, remedied this defect in the law." Although the statute has made the husband 1 DweUy v. D welly, 46 Me. 377; Haley v. Haley, 67 Cal. 24; Kean v. Spofford V. Spofford, 41 Tex. Ill; Kean, 7 D. C. 4; Shafto v. Shafto, Manchester v. Manchester, 24 Vt. 28 N. J. Eq. 34 649;iCorson v. Corson, 44 N. H. 587. 5 Doughty v. Doughty, 32 N. J. 2 Cornish v. Cornish, 56 Tex. 564. Eq. 32; Franz v. Franz, 33 N. J. Eq. 3 Morse v. Morae, 25 Ind. 156. 483; Wells v. Wells, 32 N. J. Eq. 4; * Corson v. Corson, 44 N. H. 587. Marsh v. Marsh, 29 N. J. Eq. 196; See, also, statutes not permitting Woolfolk u Woolf oik, 53Ga. 661; the parties to testify. Dillon v. Roe v. Eoe, 8 J. & S. 1; Finn «. Dillon, 33 La. An. 643; Daspit v. Finn, 12 Hun, 339; Moore v. Moore, Ehringer, 33 La. An. 1174. Stat- 14 Wk. Dig. 255; Bailey v. Bailey, utes permitting such testimony. 41 Hun, 424; Fanning v. Fanning, Matthai v. Matthai, 49 CaL 90; 20 N. Y; Supp. 849, 3 Misc. Rep. 90. Melvin v. Melvin, 58 N, H. 569; 6 Li New York the defendant is 1779.] EVIDENCE. 741 and wife competent witnesses in an action for divorce, a de- cree should rarely be granted without some corroborative evidence. And where the defendant denies and contradicts all the plaintiEE's testimony it is clear that no case is estab- lished. Still there may be instances where the credibility of the parties is so unequal or the denial so inconsistent that a finding or verdict in favoi* of the plaintiff may be justified.^ § 779. Necessity of corroborating testimony of a party. "When the testimony of a party is admissible it is regarded as of no greater force than the testimony of an accomplice, and corroboration is generally required.^ Eut corroboration permitted by recent amendment of the code to testify to any fact disproving the adultery. Irsoh u Irsch, 12 Civil Proc. 181 ; Stevens v. Stevens, 54 Hun, 490, 8 N. Y. Supp. 47; De Meli v. De Meli, 120 N. Y. 485. approving 67 How. Pr. 20; Steffens v. Steffens, 11 N. Y. Supp. 424 The communications of hus- band and wife are admissible in an action for divorce for adultery although there is also an issue of cruelty to be tried in the same suit. Testimony competent on either isfeue must be admitted. De Meli V. De Meli, 120 N. Y. 485, 24 N. E. 996; Woodrick v. Woodrick, 141 K. Y. 457, 36 N. E. 395, affirming 20 N. Y. Supp. 468; McCarthy «. McCarthy (N. Y.), 38 N. E. 288. As to competency of the parties as witnesses see also the following cases: Castello v. Castello, 41 Ga. 613; Cook v. Cook, 46 Ga. 308; Lor- enz V. Lorenz,93 lU. 376; Wilcox r. Wilcox, 16 111. Ap. 580; Morse v. Morse, 65 Ind. 156; Stuart u Stuart, 47 Mich. 566; Belton v. Belton, 29 N. J. Eq. 449; Pullen v. Pullen, 3 Stew. Ch. 541; Rivenburgh v. Rivenburgh, 47 Barb. 419; Bisssl te Bissel, 55 Barb. 325; Hennessy V. Hennessy, 58 How. Pr. 304; Eoe V. Eoe, 40 N. Y. Supr. 1; Chamber- lain V. P., 23 N. Y. 85; Perkins v. Perkins, 88 N. C. 41; Winter v. Winter, 7 Phila. 369; Bronson v. Bronson, 8 Phila. 261 ; Pyle v. Pyle, 10 Phila. 58; Stafford v. Stafford, 41 Tex. Ill; Hays v. Hays, 19 Wis. 197; Hill V. Proctor, 10 W. Va. 59; Rose V. Brown, 11 W. Va. 122. 1 Where a husband contradicted the wife's testimony in every par- ticular, it was said that, the law having made the parties compe- tent witnesses, it was for the jury and not the court to determine their credibility. "That she was flatly contradicted by her husband did not take the case away from the jury is clear. It may be that the credibility of the wife, and the want of credibility of the husband, were as clear to the minds of the jury as the light of noonday." Flattery v. Flattery, 88 Pa. 27. 2 Harris v. Harris, 2 P. & M. 77; Scott V. Scott, 3 Swab. & T. 319; Shafto V. Shafto, 28 N. J. Eq. 34j 7i2 EVIDENCE. [§ 779, is not required by any absolute rule of law. Marital wrongs often occur when no witnesses are present, or the circum- stances of the case are such that corroboration is impossible, and then a decree may be based on the testimony of one party alone.' Thus, in an action to annul a marriage on ac- count of impotence, the wife's testimony was held sufficient. " No one," said the judge, " can help feeling that the single oath of a party interested, fortified by nothing stronger than the silence of the party charged, is treacherous ground for judicial decision ; but no one can deny that if the lady's story is true, her condition is one of grievous hardship. And to call for corroboration, where all corroboration is from the nature of the subject impossible, would be harder still. I have no alternative, then, but to examine and adjudicate upon the petitioner's truth, or to close the door of the court against her altogether, be her story never so true. I accept the former, and pronounce myself entirely satisfied that this marriage has never been consummated, and that the respond- ent is incurably impotent." ^ The rule requiring the plaint- iff's testimony to be corroborated is held to be merely a general rule of piactice and not an inflexible rule of law. " When other evidence can be had," says Gray, J., " it is not ordinarily safe or fit to rely on the testimony of the party only. But sometimes no other evidence exists or can be ob- tained. The parties are made competent witnesses by stat- ute, and there is no law to permit the finding of a fact upon the testimony of a party whose credibility and good faith are satisfactorily established." ' And this is believed to be the law in all our states where the statute permits the par- tics to testify, and does not prohibit the courts from grant- ing a decree upon the uncorroborated testimony of one party.* If both parties testify and the defendant denies aU the plaintiff's testimony, the evidence is insufficient.' In > H. n P., 3 p. & M. 126. < Sylvis v. Sylvis, 11 Colo. 319, 17 2F. V. D., 4 Swab. & T. 86. P. 913. 8 Bobbins v. Bobbins, 100 Mass. s Fischer «. Fischer, 18 N. J. Eq. 150. 300. § 780.] EVIDENCE. 743 such case, however, the court must be careful to notice the character of both parties and the consistency of the testi- mony, and may refuse the decree if the evidence is not sat- isfactory. In New Jersey and Arkansas, and perhaps other states, the courts have required corroborative evidence for so long a time that the rule has acquired almost the effect of a statute.^ It is provided in some of the states that no divorce shall be granted upon the uncorroborated statement, admissions or testimony of the parties.^ § 780. What corroboration is sufficient. — The amount of corroboration that wiU suffice must depend upon the facts and circumstances of each particular case, and no general rule can be derived from the authorities. It is, however, conceded that the corroboration need not, standing alone, be sufficient to make out a prima facie case.' By some au- thorities it is held that the testimony of an accomplice is sufficiently corroborated by other evidence sustaining any material fact in the case ; ^ while the greater weight of judi- cial opinion seems to be that the confirmatory evidence must tend in some degree to connect the prisoner with the crime, and not merely establish some collateral matter or prove 1 Woodwortli V. Wood worth, 21 39 N. W. 270; Lewis v. Lewis, 75 la. N. J, Eq. 351 ; Sandf ord v. Sandford, 200, 39 N. W. 271 ; Evans v. Evans, 33 N. J. Eq. 430; Franz v. Franz, 33 41 Cal. 103; Matthai v. Matthai, 49 N. J. Eq. 483; Doughty v. Doughty, Cal. 90; Cooper v. Cooper, 88 Cal. 33 N. J. Eq. 33; McShane v. Mc- 45, 25 P. 1062; Hagle u Hagle, 74 Shane, 45 N. J. Eq. 341, 19 A. 465; Cal. 608, 16 P. 518; Leach «. Leach, Palmer v. Palmer, 23 N. J. Eq. 88; 46 Kan. 724, 37 P. 131; McCulIoch Tate V. Tate, 36 N. J. Eq. 55; Costill v. McCuUoch, 8 Blackf. 60; Math- V. Costill, 47 N. J. Eq. 346; Herold ews v. Mathews, 41 Tex. 331. «. Herold, 47 N. J. Eq. 210, 20 A. SRapalje on Witnesses, § 227, 375, and cases cited; Eie v. Eie, 34 citing Lumpkin v. S., 68 Ala. 56; Ark. 37; Brown v. Brown, 38 Ark. Hoyle v. S., 4 Tex. Ap. 239; 8. v. 324; Scarborough v. Scarborough, Lawler, 28 Minn. 216; Jackson v. 54 Ark. 20, 14 S. W. 1098; Kurtz v. S., 4 Tex. Ap. 293. Kurtz, 38 Ark. 119; Ortman v. Ort- < S. v. Hennessy, 55 la. 299; Terri- man, 93 Mich. 173, 52 N. W. 619. tory v. Corbett, 3 Mont. 50. 2 See Potter v. Potter, 75 la. 311, 744 EVIDENCE. [§ 781. that a crime has been committed by some one.' There is no doubt that circumstantial evidence which establishes a ma- terial fact in the case is sufficient corroboration of the plaint- iff's testimony in an action for divorce.^ "When no divorce could be granted upon the testimony of either party " unless corroborated by other evidence," it was held that the wife's testimony that her husband committed adultery with a cer- tain woman was sufficiently corroborated by evidence that the woman w&s of doubtful character and had lived alone with the defendant for some time, and also by the failure of the defendant to contradict her testimony, both the defend- ant and the alleged paramour being present at the trial.' The plaintiff's testimony that her husband had called her vile and opprobrious names was sufficiently corroborated by the testimony of a witness that the husband, when informed that his wife had complained to others of his ill treatment, did not deny the charges made against him.* Where there was no direct evidence aside from the testimony of the plaintiff that her husband became an habitual drunkard after marriage, her testimony was sufficiently corroborated by other facts in the case, detailed by other witnesses, tend- ing to show that the drinking did not become habitual until after marriage and that the fits of intoxication became more frequent in later years.* § 781. Confessions and admissions. — The confessions and admissions of a party are admissible against him in a divorce suit as in other actions.* Such evidence is, however, of the 1 Rapalje on Witnesses, citing ^ Evans v. Evans, 41 Cal. 103. Com. V. Drake, 134 Mass. 31; S. v. «Venzke v. Venzke, 94 Cal. 335, Kellerman, 14 Kan. 135; Marler v. 29 P. 443. S., 67 Ala. 55; P. v. Garnett, 39 Cal. 5 Lewis v. Lewis, 75 la. 300, 39 N. 633; P. V. Ames, 39 Cal. 403; P. v. W. 371. Cloonan, 50 Cal. 449; P. v. Coiu-t- 6 King u King, 38 Ala. 315; Hand- ney, 28 Hun (N. Y.), 589. berry v. Handberry, 39 Ala. 719; 2 Emerson v. Emerson, 16 N. Y. Lindsay v. Lindsay, 43 N. J. Eq. Supp. 793 ; Derby v. Derby, 31 N. J. 150, 7 A. 666 ; Burk v. Burk, "44: Kan. Eq. 36; Venzke v. Venzke, 94 Cal. 307,24 P. 466; Breckmans uBreck- 335, 29 P. 449; Lewis v. Lewis, 75 mans, 16 N. J. Eq. 133; Richardson la. 200, 39 N. W. 371. v. Richardson, 50 Vt. 119; Betts v. § 781.J EVIDENCE. 745 very IdWest order, and from the earliest times to the present has been received with caution, and held insufficient to justify, a decree of divorce.^ The statutes sometimes prohibit the courts from granting divorce on such evidence.^ So the admissions of the parties in their pleadings do not relieve them from establishing all the facts necessary to pro- Betts, 1 Johns. Ch. 197; Armstrong V. Armstrong, 33 Miss. 379; White V. White, 45 N. H. 121; Clutch v. Clutch, 1 N. J. Eq. 474; Lyster v. Lyster, 1 la. 130 ; Fulton v. Fulton, 86 Miss. 517; Lyon v. Lyon, 63 Barb. (N. y.) 138; Devanbaugh v. Devan- baugh, 5 Paige, 554. 1 See Summerbell v. Summerbell, 37 N. J. Eq. 603, reviewing the fol- lowing early authorities: Williams V. Williams, 1 Hagg. Con. 399; Mor- timer V. Mortimer, 3 Hagg. 810 Harris v. Harris, 2 Hagg. 376 Burgess v. Burgess, 3 Hagg. 223 Noverre v. Noverre, 1 Rob. 438 Owen V. Owen, 4 Hagg. 361 ; Grant V. Grant, 3 Curties, 16; Deane v. Deane, 12 Jur. 63. The rule is de- duced from the above that, if the proofs are almost sufficient, but do not entirely satisfy the conscience of the court, the confession may be decisive if free from suspicion of collusion, improper influence, or made in good faith. See, also, as supporting the text, Miller v. Mil- ler, 1 N. J. Eq. 386; Baxter v. Bax- ter, 1 Mass. 346; Sawyer v. Saw- yer, Walker (Mich.), 48; Jones v. Jones, 17 N. J. Eq. 851 ; Latham v, Latham, 38 Gratt. (Va.) 307; WiU- iams V. Williams, 1 P. & M. 29; Le Brun v. Le Brun, 55 Md. 495; Mack V. Handy, 39 La. An. 491, 3 So. 181; Vance v. Vance, 8 Me. 132; Johns V. Johns, 29 Ga. 718; Ed- wards V. Edwards, 3 Pitts. 338; Van Veighten v. Van Veighten, 4 Johns. Ch. 501. ^Kean v. Kean, 7 Dist. C. 4; Woodrick v. Woodrick, 30 N. Y. Supp. 468; Marshall v. Baynes, 80 Va. 1040, 14 S. E. 978 ; Burk v. Burk, 44 Kan. 307, 34 P. 466; SteflEens v. Steflfens, 11 N. Y. Supp. 425; Fow- ler V. Fowler, 11 N. Y. Supp. 419. Where a witness has testified that the husband had invited the para- mour to tlie house, another witness may be asked, on cross-examina- tion, if " she did not hear the plaint- iff before that forbid (the wife) to go with (the paramour) or go where he was." Such testimony is not incom- peiient under the statute excluding the declarations and admissions of the parties, and is admissible to dis- prove connivance. Toole i'. Toole, 109 N. C. 615. Such conversation, having taken place in the presence of the witness, is not a privileged communication. Toole v. Toole, 113 N. C. 153. The declarations of the alleged paramour, made to or in the presence of the wife, and the reply of the wife, tending to show that improper familiarities had been or were about to be in- dulged in by the parties, is not incompetent as a confession or ad- mission of a party to the suit. Toole V. Toole, 113 N. C. 153. 746- EVIDENCE. [§ 781. cure the divorce.' The admission of defendant's counsel that plaintiff is a resident of the state does not excuse proof of that fact where the statute requires such fact to be proved by at least two witnesses.^ The reason for requiring addi- tional evidence is to prevent divorce by coUusive agreements, and because the confession may have been obtained by extor- tion or fraud.' Some authorities maintain that a decree can be based upon the confession of the defendant, " where it is full, confidential, reluctant and free from suspicion of col- lusion," * or the circumstances were such as to repel all just suspicion.' But the general doctrine already stated requires something more than mere proof of the genuineness of the confession ; it requires proof that the confession itself must be true. This does not require the additional proof to be sufficient to establish a prima facie case." If the confession is consistent and genuine and corroborated by other evi- dence, it is entitled to great weight, and becomes the foun- dation of other evidence which may be explanatory.'' Or, if it is inconsistent and improbable, it wiU not be regarded as of any value. The confession to be admissible must be vol- untary. If it has been obtained by unfair means, by fraud- ulent representations, by fear of violence or disgrace, or through the husband's constraint, it should not be admitted as part of the evidence.* A written confession of the wife 1 Schmidt v. Schmidt, 29 N. J. parties. Hampton v. Hampton, 87 Eq. 496; Hughs v. Hughs, 44 Ala. Va. 148, 12 S. E. 340. In Texas this 698; True v. True, 6 Minn. 315. was held to exclude the confessions 2 Prettyman v. Prettyman, 125 of the parties. Stafford v. Stafford, Ind. 149, 25 N. E. 179. ' 41 Tex. 111. But see Hanna v. SBetts V. Betts, 1 Johns. Ch. 197. Hanna, 3 Tex. Civ. Ap. 51, 21 S. W. ^Matchin v. Matchin, 6 Pa. 382. 720. In this case there was also strong '' See Hansley v. Hansley, 10 Ire. circumstantial evidence. Law, 506. 5 Madge v. Madge, 42 Hun, 524; « Hampton v. Hampton, 87 Va. BiUings v. Billings, 11 Pick. 461. 148, 12 S. E. 340; Miller v. Miller, 2 6 In some states the statute re- N. J. Eq. 139; Callender v. Callen- quires the evidence to be full and der, 53 How. Pr. 364; Twyman v. satisfactory independent of the Twyman, 27 Mo. 383. confessions and admissions of the § 782.] EVIDENCE. 747 that she had occupied a state-room with the alleged para- mour during the night was excluded as involuntary, where she was persuaded that such confession would not be an ad- mission of adultery ; and the husband to induce her to sign it had promised to hire a house and go to housekeeping with her.i Such confession must be excluded if not fuUy under- stood or fairly obtained, although it has been formally sworn to before an authorized officer.^ A confession copied by the wife in the presence of her husband from memoranda made for her, though signed in the presence of a witness, must be disregarded when all the circumstances create a strong sus- picion that the acts confessed could not have taken place, and the subsequent conduct of the parties shows collusion.^ Where the trial is to the court without a jury, it seems that the confession must be admitted in evidence to determine whether it is genuine, and then evidence is heard to estab- lish its validity, leaving the court to determine its weight from the corroborative evidence. In a jury trial other con- siderations may control, but generally it may be admitted after establishing its validity. § 782. Privileged commuuications between husband and wife. — At common law neither the husband nor the wife could be a witness either for or against the other, partly on the ground of interest and identity, but principally on the ground of public policy which protected marital confidence by excluding all communications between husband and wife as privileged. When husband and wife are made competent witnesses by statute, this did not abrogate the common-law rule which excluded their conversations and communica- tions.* The common law must be changed by some express enactment permitting the parties to relate their private con- versations. Generally the statutes do not alter the common law, but simply express the common-law rule that such com- 1 Derby v. Derby, 21 N, J. Eq. sSummerbell v. Summerbell, 37 36-48. N. J. Eq. 603. 2 Id. ^Raynes v. Bennett, 114 Mass. 424 748 EVIDENCE. [§ 782. munications are privileged.' The general provisions of the statute relating to evidence are held to exclude this kind of testimony in actions for divorce.^ This rule works great hardship where the husband has been guilty of extreme cruelty or of indignities rendering the wife's condition intol- erable, as accusing the wife of adultery or using vile, abusive and profane language when others are not present ; but even in such cases such evidence is not admitted even on the ground of necessity.' The privilege extends not only to the conversations of the parties, but also to written communications, letters or tele- grams.* The reason of the common-law rule extends to written as well as oral communications. The parties should be as free to write to each other as to talk together. But it is held that the privilege does not extend to conversations in the presence of others. A witness who secretly or accident- ally overheard a conversation of the parties may relate itj' although both parties were unaware that they were over- heard." And when a letter of one of the parties falls into the hands of a third person it is said that " the sacred shield of privilege " is removed.'' But it seems that the reason for the privilege would exist in all cases where the letter comes into the possession of a third person except where the writer voluntarily places it in the hands of others under such cir- cumstances that it may be read. After the letter reaches the hands of the other pa,rty it should be privileged. No in- fidelity of the receiver can make it an instrument of evidence. 1 Cornish v. Cornish, 56 I'ex. 564; contra, Fowler v. Fowler, 11 N. Y. Briggs V. Briggs (E. I.), 36 A. 198; Supp. 419, 58 Hun, 601. Smith V. Smith, 77 Ind. 80. < Brown v. Brown, 53 Mo. Ap. 453. 2 Berlin v. Berlin, 53 Mo. 151; See. also, Mitchell V. Mitchell, 80 Moore v. Moore, 51 Mo. 118; Dwyer Tex. 101. V. Dwyer, 2 Mo. Ap. 17; Stebbins = Toole v. Toole, 112 N. C. 153. V. Anthony, 5 Colo. 348; French v. 6 Com. v. Griffin, 110 Mass. 181; French, 14 Gray, 186. S. v. Centre, 35 Vt. 378; Gannon v. 3 Miller v. Miller, 14 Mo. Ap. 418 Vogel V. Vogel, 13 Mo. Ap. 588 Dwyer v. Dwyer, 3 Mo. Ap. 17 P., 127 111. 518; Jacobs u Hesler, 113 Mass. 157. 'S. V. Buffington, 20 Kan. 599; Ayers v. Ayers, 28 Mo. Ap. 97. See S. v. Hoyt, 47 Conn. 518, 540. § 783.] EVIDENCE. 749 The same privilege continues after the marriage is dis- solved, and neither of the divorced parties can reveal any information acquired during the marriage.' But their com- munications made after divorce are admissible.' § 783. Privileged communications to physicians and attorneys. — The testimony of physicians is often resorted to in actions for divorce for cruelty or adultery. Theip tes- timony is admissible as in other cases. At common law the communications of patients to their physicians Avere not privileged, and so are not protected unless by statute.' The statutes are held to extend their protection to all informa- tion received by eye or ear, from observation of the patient's symptoms, and from statements of others around him as well as those of the patient himself.* A letter addressed to a physician is a privileged communication if the facts dis- closed in it are necessary to enable the physician to pre- scribe.* In an action for divorce for adultery, where it is claimed that defendant has a venereal disease, a physician cannot, against the defendant's objection, disclose any in- formation acquired in his professional employment." Such communications, like those made by a client to counsel, or by a layman to a clergyman, are admissible unless the privi- lege is claimed. The patient may waive this privilege and allow the physician to testify.' Communications to an at- torney, in the presence of another party who acts as a friend 'S.U Jolly, 3 Dev. & Bat. 110; 'Grattam v. Nat. Life Ins. Co., Owen -y. S., 78 Ala. 425; Barnes v. 15 Hun (N. Y.), 74. Camaok, 1 Barb. Ch. 392; S. v. J. B. < Eapelje on Witnesses, § 272. N., 1 Tyler, 36, overruled in S. v. »Briggs V. Briggs, 20 Mich. 34. Phelps, 3 Tyler, 874; Cook v. ejo^ngon v. Johnson, 4 Paige, Grange, 18 O. 526; Kimbrough 468; a C, 14 "Wend. 641; Hunn v. V. Mitchell, 1 Head, 539; Brook v. Hunn, 1 Thomp. & C. 499; Venzke Brock, 116 Pa. 109; Perry v. Ran- v. Venzke, 94 Cal. 325. dall,83I]id. 143; Andersouv.Ander- 'A party may claim the privi- son, 9 Kan. 113; Elswick v. C, 13 lege where the communications Bush, 155; Mercer v. Patterson, 41 are stated in an aflldavit to be Ind. 440; Chamberlain v. P., 23 N. used on a hearing for temporary Y. 85. alimony. Sohlosser v, Schlosser, 29 2 Long V. S., 86 Ala. 36. Ind. 488. 750 EVIDENCE. [§§ 784, 785. and agent, and tlie conversation of all three persons in re- gard to the cause of action, are admissible where the attorney is not employed at the time, or subsequently employed, as attorney.' § 784. Testimony of children of the parties. — Children who are of suflBcient age may testify as in other actions, but their testimony is not regarded with much favor. Children of the parties to the suit are often biased in favor of one parent as against the other, and for that reason as well as their mental immaturity their testimony is received with caution and accorded but little weight.^ Where the cause for divorce is adultery, it is manifestly improper to call the children of the parties to establish the guilt of one of the parents. "It is a great wrong to them, not only as it touches them in their natural affections, but also as it tends to destroy their purity of mind and conduct. Moreover, the evidence of such children to acts which will naturally be construed by their prepossessions and immature and incorrect notions is of very slight value, even when honestly called out and given, and is easily shaped and perverted if a dis- honest father shall be so inclined." ' As the cause for divorce must be established by full and satisfactory evidence, the testimony of children of the parties, without other evi- dence, is insuiiicient to justify a decree.'' "Where the hus- band and wife contradict each other, and their testimony is of equal credibility, the testimony of their children, if con- sistent, may create a satisfactory preponderance in favor of one party.' § 785. Relatives and servants as witnesses. — In the old reports there is some comment on the value of the testimony of relatives and servants, but similar considerations will not 1 Sharon v. Sharon, 79 CaL 633. 3 Crowner v. Crowner, 44 Mich. 2 Blake v. Blake, 70 111. 618; Phil- 180. lips V. Phillips, 91 Ga. 551, 17 S. E. 805. The right to dismiss. 806. Eeference, 807. Co^ts. 808. New trials. 809. Appeal. §800. The trial — Open court. — Under the early chan- cery practice the chancellor did not hear oral testimony b,ut determined the case on the depositions of the witnesses. If the divorce suit follows the chancery practice it would be proper to try the issues in the same manner unless the stat- utes provide otherwise. In some states it is required that the case shall be tried in open court or that the witnesses shall be examined in open court.^ It is supposed that a pub- lib trial is a safeguard against bribery and collusion and that the best interests of the state demand it. An open court is a court formally opened and engaged in the trans- action of judicial affairs, to which all persons who conduct themselves in an orderly manner are admitted.^ A statute which requires a court to proceed to "hear the cause by ex- amination of witnesses in open court " is not compUed with by hearing the testimony of one witness and the deposition of another.' In the absence of any statute to the contrary, it is supposed that a court may hear a. nullity suit in private where the evidence is offensive and the parties do not ob- ject." 'See HobartwHobart,45 la. 501; 'Suesemilch v. Suesemilch, 43 Cross V. Cross 55 Mich. 280. IlL Ap. 573. 2Hobart v. Hobart, 45 la. 501. *2 Bishop, Mar., Sep. & Div. 674 •§ 801.J TEIAL AND APPEAL. V53 § 801. Trial by jury and verdict.— In the ecclesiastical courts the judge heard the divorce suit vpithout the inter- ventiou of a jury;i and this is the common practice in our -country unless the statute provides for a jury trial.^ If a jury trial is permitted by statute it is a matter of right un- less waived.^ In the absence of statute the parties have no constitutional right to a trial by jury, since such right did not exist at common law.* Where a jury is required the court may instruct them as in other cases.' And a request for special findings may be submitted to the jury under the provisions of the code,* and the court may make additional findings on issues not presented to the jury.' "Where the divorce suit follow^s the chancery practice the court may submit certain issues to the jury ; but the refusal to do so is within the discretionary power of the court and is not sub- ject to review.^ In such case the verdict of the jury is not binding on the court, but is simply advisory, and may be dis- regarded.' But the action of the court in entering a decree iCaton V. Caton, 13 Jur. 431. 2 Slade V. Sla,de, 58 Me. 157; Coffin V. Coffin, 55 Me. 361; Hobart v. Hobart, 51 la. 513; Carpenter v. Carperiter, 30 Kan. 713; Simpson V. Simpson, 35 Ark. 487; Madison v. Madison, 1 Wash. Ter. 60; Allison V. Allison, 46 Pa. 821 ; Miles v. Miles, 3 Jones Eq. 31; Carre v. Carre, 3 Yeates, 307. In New York the is- sue of adultery must be tried by a jury. Dietz v. Dietz, 4 Thomp. & C. 565; Condennan v. Conderman, 44 Hun, 181; Galusha v. Galusha, 43 Hun, 181; Baltzell v. Baltzell, 42 N. Y. Sup. Ct. 561; Whale v. Whale, 1 Code R. 115; Anon., 8 Code R 139; Parker v. Parker, 3 Abb. Pr. 478; Anon., 5 How. Pr. 806; Winans v. Winans, 54 N. Y. Sup. ■Ct. 542. 3 Dietz V. Dietz, 4 Thomp. & C. 565, 3 Hun, 339; Razor v. Razor, 43 48 IlL Ap. 504; Black v. Black, 5 Mont. 15. See, also, Keller v. Kel- ler, 3 Woodward, 483; SchaefEeru Schaeffer, 3 Kulp, 14; Uhrich v. TJhrich, 3 Kulp, 14; Jordon v. Jor- don, 13 W. N. C. 193. > *Cassiday v. Cassiday, 64 Cal. 366; Mead v. Mead, 1 Mo. Ap. 347. 5 Smith V. Smith, 73 N. C. 139; Richmond v. Richmond, 10 Yerg. 843. 6 Morrison v. Morrison, 14 Mont. 8, 35 P. 1; Morse v. Morse, 35 Ind. 156; Ewing v. Ewing, 24 Ind. 468; Bradley v. Bradley, 45 Ind. 67; Cul- len V. Cullen, 44 Kan. 370. 'Schmidt v. Schmidt, 31 Minn. 106. 8 Anon., 35 Ala. 226; Leffel v. Leffel, 85 Ind. 76; Burkley v. Burk- ley, 56 N. Y. 192. 9 Lewis V. Lewis, 9 Ind. 105; Hay- good V. Haygood, 25 Tex. 576; 754 TRIAL AND APPEAL. [§§ 802, 803, in opposition to the verdict is subject to review.' If a jury trial is required by statute it would seem that the verdict should not be advisory, but should have all the force and effect of a verdict at common law.^ § 802. The right to open and close. — The suit for divorce is often a complex proceeding. The issue pi'esented by the complainant may be denied by the defendant, who may ten- der an issue of far greater importance. Thus the defendant may deny the validity of the marriage and pi'ay that the same may be annulled. Or he may set up some offense of the plaintiff in recrimination, and this issue will become the main issue of the case, toward which most of the proof is directed. In reason, the party who tenders the principal issue assumes the burden of proof and is therefore entitled to open and close. Thus, where the wife brought an action for separate maintenance on account of desertion, the hus- band denied the desertion and set up the adultery of the wife in a cross-petition as a cause for divorce, and at the trial the adultery became the principal issue. It was held that the husband should have the right to open and close the case, but the court had a right to direct the method of the trial, and the refusal to permit the defendant to open and close the case was not an abuse of discretion.' § 803. When the divorce suit follows the code proced' , ure. — Since the suit for divorce is governed by peculiar principles of its own, it is clear that all the provisions of the code are not applicable. For instance, the provisions relat? ing to confessions of judgment have no application in a suit for divorce, where the court must disregard the confession O'Bryan v. O'Brj'an, 13 Mo. 16; Montfort v. Montfort, 88 Ga. 641, Muloch V. Muloch, 1 Edw. Ch. 14; 15 S. E. 688; Carpenter v. Carpen- Paulson V. Paulson (Tex.), 31 S. W. ter, 9 N. Y. Supp. 583; Eichmond v. 778; Moore v. Moore, 22 Tex. 237; Richmond, 10 Yerg. (Tenn.) 348. Morse v. Morse, 25 Ind. 156. ' See contra, Beck v. Beck, 6 Mont. iJernigan v. Jernigan, 87 Tex. 818, 13 P. 694. 420. 3 Razor v. Razor, 149 III. 631, 43 2 Razor V. Razor, 43 111. Ap. 504; III Ap. 504. Poertner v. Poertner, 66 Wis. 644; § 803.] TEIAL AND APPEAL. 755 or default of a party, and refuse a decree unless the cause for divorce is established by clear and satisfactory evidence. The practice in the ecclesiastical courts cannot be followed, because our courts have established rules of practice and codes of civil procedure. When jurisdiction to grant divorce was conferred upon our courts, it was not intended that the practice would be changed. The divorce statutes sometimes contain special provisions governing the divorce suit, and the inference is that in all other respects the practice may follow the usual course of proceedings. The divorce act may contain no provision for answer, cross-petition, demur- rers, amendment of pleadings, reply, motions for continu- ance or new trials, service of summons, change of venue, bills of exception, appeal, or similar pleadings and proceedings. Yet all such provisions of the code are applicable to the di- vorce suit, because the divorce act would be inoperative unless such procedure could be followed.' But if the stat- ute is silent as to the method of procedure, or contains no provision giving full scope to a right which is a part of the common law of divorce, the ecclesiastical practice may be followed. If the statute is silent in regard to such defenses as connivance, collusion or recrimination, the right to inter- pose such defense will exist as a part of the common law of divorce. The right to file a cross-petition in an action for divorce and to obtain affirmative relief is not to be derived from the divorce act, or from the usual provision of the codes relating to set-off and counter-claim. In the absence of any provision for such a pleading, the defendant may obtain re- lief by following the ecclesiastical practice, which is a part of the common law of our country, except as modified by our statutes.^ AU provisions of the code, unless manifestly in conflict with thp reason and policy of divorce law, or the provisions of the divorce act, are applicable to the proceed- ings for divorce. 1 Powell V. Powell, 104 Ind. 18; P. 886, citing G. v. G., 33 Md. 401; Evans v. Evans, 105 Ind. 304. Le Barron v. Le Barron, 35 Vt. 365. ^Wuest V. Wuest, 17 Nev. 317) 30 756 TRIAL AND APPEAL. ' [§§ 804, 805. § 804. Change of venue. — A suit for divorce is a civil case within the meaning of a code providing for a change of venue in civil cases. The divorce proceeding in most of the states must follow the procedure in other civil cases, where the act relating to divorce is silent as to questions of pleading and practice, unless the code is for some reason in- applicable. For this reason it is held that the provisions of the code relating to a change of venue or the right to ap- point a special judge are applicable to divorce suits ; ' but not to applications to revise decrees of alimony.^ If the statute gives a peremptory right to a change of venue, the motion must be granted before an order for temporary ah- mony is made.' "Where a change of venue is demanded on the ground of local prejudice or undue influence over the citizens of the county, a different question arises, since such provision evidently refers to a trial by jury, while in a di- vorce suit the court may in its discretion refuse a trial by jury. But if the statute evidently includes all civil actions a change of venue must be granted. The legislature having permitted the change in all cases, the court will not inquire into the reasons for the provision, and adjudge them suffi- cient or insufficient.* Eut the court may determine that from the nature of the proceeding for divorce the code pro- vision is or is not applicable.* § 805. The right to flismiss.— The right of the plaintiff to dismiss an action for divorce requires some notice here, because it differs from the plaintiff's right in other actions. Under the chancery practice it is well settled that, at any time prior to the decree, the complainant has the right to control the fortunes of his own bill, and on payment of costs can dismiss it as a matter of course.^ And under the codes iMoeuMoe, 39Wis.309; PoweU sHennessy v. Mcol (Cal.), 38 P. V. Powell, 104 Ind. 18, overruling 649. Mussebnan v. Musselman, 44 Ind. * Evans A Evans, 105 Ind. 204. 106. 5 See, also. Usher v. Usher (CaL), 2HopkinsuHopkins, 40Wis. 463. g6 P. 8; Warner v. Warner, 100 See contra, McPike v. McPike, 10 Cal. 11, 34 P. 533. la Ap. 333. 6 Clark v. Clark, 39 lU. Ap. 257. § 805.] TEIAL AND APPEAL. 757 of civil procedure the plaintiff has even greater rights, and may dismiss an action in vacation by filing an order for dis- missal.' But the action for divorce in this respect is sui generis, and cannot be dismissed without permission of the court if the defendant has entered an appearance.'^ There must be an application to the court so that the rights of the parties and their attorneys can be adjusted and all the mat- ters pertaining to the suit disposed of. The application for temporary alimony must be acted upon, and the plaintiff's dismissal will not deprive the court of jurisdiction to award alimony and costs.' The court has also the discretionary power to make alt necessary orders to compel the payment of attorneys' fees, although the parties have agreed to dis- miss the suit and resume cohabitation.* The action of the court in this matter is not ordinarily subject to review. Sometimes the courts have disregarded the rights of the at- torneys for the wife and refused to make any allowance for their services in preparing a defense for her.^ But the cases are wrong in principle, for it is good policy to encourage the wife to make every possible defense and thus discourage and prevent divorces. When the services are rendered in part by the preparation of a defense, the court should see 1 Courtney u Courtney, 4 Ind. Ap. v. Thompson, 40 Tenn. (3 Head), 231, 30 N. E. 914 536. 2 Winans v. Winans, 134 N. Y. 140, * Courtney v. Courtney, 4 Ind. Ap. 36 N. E. 398; Murphy v. Murphy, 8 331, 30 K E. 914; Reynolds v. Supr. Phila. 357; Cooper 'W.Cooper, 3 Swab. Ct, 6 P. 431, 7 P. 480; Dixon v. & T. 393; Campbell v. Campbell, 13 Dixon, 3 P. & M. 353; Wagner v. Hun, 636, 54 How. Pr. 115; Leslie u Wagner, 34 Minn. 441; Waters v. Leslie, 10 Abb. Pr. (N. S.) 64. Waters, 49 Mo. 385; Burgess v. Bur- 5 Butler V.Butler, 38 N. J.Eq.636; gess, 1 Duv. (Ky.) 387; Phillips v. Weaver v. Weaver, 33 Ga. 173; Les- Simons, 11 Abb. Pr. 388; Kirby v. lie V. Leslie, 10 Abb. Pr. (N. S.) 64; Kirby, 1 Paige, 565; Gossett v. Pat- Clymer v. Clymer, 45 Leg. Int. (Pa.) ten, 33 Kan. 341. 879; Kinohloe t). Merriam, 54 Ark. » Reynolds v. Reynolds, 67 Cal. 557; Chase v. Chase, 65 How. Pr. 176; Moore v. Moore, 33 N. Y. Supp. 308; Louden v. Louden, 65 How. 451; Newman v. Newman, 69 111. Pr. 411; Smith v. Smith, 35 Hun, 167; Persons v. Persons, 7 Humph. 378; -Thorndike v. Thorndike, 1 183; McCulloch v. Murphy, 45 III. Wash. 175. See contra, Thompson 356. 768 TEIAL AND APPEAL. [§ 806. that the attorney receives some remuneration when the dis- missal is entered.! In no case will the dismissal of a bill defeat the right of the defendant to obtain the relief asked for in the cross-bill.^ And where there is no cross-bill, but a mere denial of the marriage, the plaintiff cannot dismiss, but the court will proceed in the action and determine the validity of the marriage, since the second wife and the gen- eral public have a right to have the status of the second wife and her children determined in this action.^ Ordinarily the plaintiff has no right to dismiss without prejudice after the issues have been submitted to the court or jury; but where, by oversight or surprise, the plaintiff has failed to introduce essential testimony, the court may, in its discretion, permit the plaintiff to recall the submission and dismiss without prejudice.* The action should be dismissed for want of prosecution as in other cases. In no case should a delay be allowed where the wife is receiving instalments of tempo- rary alimony and will profit by delay. If the husband is unable to pay the alimony as ordered, the court may, in its discretion, require the parties to proceed to trial or other- wise grant the hiisband's application to dismiss , the action. § 806. Reference. — In the absence of any statute requir- ing divorce suits to be tried by a jury, or in open court, or by the court without the intervention of the jury, the eccle- siastical practice will obtain and the action will be tried be- fore the court." In such case it is doubtful whether a refer- ence may be ordered when both parties consent. If the statute requires a trial by jury, the court should refuse a reference upon the stipulation of the parties.^ There are some grave objections to the appointment of a referee in actions for divorce. There is a great temptation to avoid an intelligent examination of the witness which might de- 1 Green v. Green. 40 How. Pr. 465. < Ashmead u Ashmead, 23 Kan. See, also, Aspinwall v. Sabin, 23 262. Neb. 73, 34 N. W. 73. s Mangels u Mangels, 6 Mo. Ap. 2 See, also, § 745. 481. sWinansu Winans, 134N.Y. 140, "gimmons v. Simmons, 3 Rob. 26 N. E. 293. (N. Y.) 642. § 806.] TEIAL AND APPEAL. T59 Yelop some defense to the action. If it appear that the offense has been condoned, or there is some evidence of recrimination, the referee taay neglect to inquire into the matter, and the evidence will not be taken, so that the court , ■will be apprised of the defense and the real merits of the case. The state, which is always an interested party in every divorce suit, cannot be fairly represented in a proceed- ing before a referee who does not investigate every sus- picious circumstance in the case. There is a general belief, not entirely without foundation, that reference gives too much opportunity to fraud and collusion, and other evils which flow from hasty and secret divorces ; and such practice is not permitted in most of the states. Where the divorce suit proceeds under the chancery practice, the courts may, in accordance with their usual mode of procedure, refer the suit to a master in chancery.^ The powers and duties of referees in divorce cases, as regulated by the practice in jSTew York state, are not of general interest to the profes- sion, but may be determined by examining the provisions of the code and the following adjudications.^ This practice is iShillinger v. Shillinger, 14 111. 1070; Jones v. Jones, 71 Hun, 519, 147; Stone v. Stone, 28 N. J. Eq. 24 N. Y. Supp. 1031, and cases cited;. 409; Mangels v. Mangels, 6 Mo. Ap. Bice v. Eice, 33 W. Dig. 258; Smith 481; Graves v. Graves, 2 Paige (N. v, Smith, 4 Monthly L. Bui. 57; Y.), 63; Dodge v. Dodge, 7 Paige, Scl^^•oeter v. Schroeter, 30 Hun, 589; Moore u Moore, 56 N. H. 513; 330; Harding v. Harding, 11 J. & Ren wick v. Renwick, 10 Paige, 430; S. 37; Bihin v. Bihin, 17 Ab. Pr. 19; Hart V. Hart, 3 Edw. Ch. 207: Arborgast u Arborgast, 8 How. Pr. Pugsley V. Pugsley, 9 Paige, 589; 297; Turney v. Turney, 4 Edw. Ch. Banta v. Banta, 3 Edw. Ch. 295; 566; Fairbanks v. Fairbanks, 3 Lincoln v. Lincoln, 6 Rob. 635; P. Edw. Ch. 308; Glick v. Glick, 5 ^^ McGinnis, 1 Park. 387. Month. L. Bui. 63; Bloodgood u 2Ryerson v. Ryerson, 7 N. Y. Bloodgood, Daily Reg., Apr. 30, Supp. 736, 55 Hun, 191; Goodrich 1884; Gade v. Gade, 14 Ab. N. C. V. Goodrich, 31 Weekly Digest, 364; 510; Greene v. Greene, 14 W. Dig. Uhlmann v. Uhlmann, 17 Ab. N. C. 159; Blott v. Ryder, 47 How. Pr. 236, 264; Matthews v. Matthews. 6 90; Thornton v. Thornton, 66 How. N. Y. Supp. 589, 53 Hun, 244; Ross Pr. 119; Moore v. Moore, 24 W. Dig. V. Ross, 31 Hun, 140; Griffin v. 255; Burgess v. Burgess, 53 N. Y. •Grifian, 70 Hun, 73, 23 N. Y. Supp. Supp. (J. & S.) 545; Bliss v. Bliss, 11 760 TKIAL AND APPEAL. [§ 807.. permitted under the statutes of some other states.' In New York the defendant has an absolute right to a trial by jury where the adultery is alleged as a .cause for divorce. A ref- erence cannot be ordered without the consent of the defend- ant in such cases.^ Where the parties have had a hearing before a referee by consent, the court may refuse the plaint- iff's request for a trial by jury, as the consent to a reference is a waiver of the right, and the court may in its discretion refuse to grant a jury trial.^ § 807. Costs. — There is no absolute rule for the taxation of costs in an action for divorce. In general it may be said that the costs are not always taxed against the defeated party as in the ordinary suit.* The court may, in its discretion, ap- portion the costs as may be equitable under all the circum- stances of the case, taking into consideration the merits of the case, the property of each party, and aU other facts which may properly influence the court in adjusting the rights of the parties. Unless there has been an abuse of this discre- tion the reviewina: court will not interfere with the deter- mination of the trial court.' Owing to the identity of the parties and the husband's control of all the property, the ecclesiastical courts generally allowed the wife her costs whether successful or not.' For similar reasons our courts- Civil Pro. R. 94; Waterman v. ^-yvinans v. Winans, 134 N. Y. Waterman, 37 How. Pr. 36; Didell 140, 36 N. E. 39.3. V. Didell, 3 Ab. Pr. 167; MoCleary «Shoop's Appeal, 34 Pa. 333; Ni- V. McCleary, 30 Hun, 154; Paul v. kirk v. Nikirk, 3 Met. (Ky.) 433; Paul, 11 N. Y. St. R. 71, and cases Dugan v. Dugan, 1 Duv. 389. cited; Smith v. Smith, 33 Civil 5 Sumner r. Sumner, 54 Wis. 643. Pro. 386; s. c, 7 Misc. 305, 37 N. E. e Wells v. Wells, 1 Swab. & T. 569; Bliss v. Bliss, 13 Daly, 489; 308; Evans u Evans, 1 Swab. & T. Harding v. Harding, 53 How. Pr. 338; Ditchfield v. Ditchfield, 1 P. 238; Ives v. Ives, 7 Misc. 338; Mer- & M. 739; Holt v. Holt, 38 L. J. rill V. Merrill, 11 Ab. Pr. (N. S.) 74. Mat. Cas. 13. But see Jones v. iHobart v. Hobart, 45 la. 501; Jones, 3 P. & M. 333. The vrife is Baker v. Baker, 10 Cal. 257. See allowed the costs of a continuance statement of duties of referee and and the mileage and expenses of a effect of his finding under the code, witness sent abroad to obtain ma- Gibson V. Gibson, 24 Neb. 394. terial testimony. Allen v. Allen, 2 Batzell V. Batzell, 10 J. & S. 561. 3 Swab. & T. 107, § 807.] TRIAL AND APPEAL. 761 rarely decree costs against a defeated wife.^ If the wife has been unsuccessful the husband may be compelled to pay the costs, and if his conduct has been improper and unjust the decree for costs " may be a salutary admonition to him to govern himself and regulate his conduct in the future."^ A sound public policy requires that unfounded and vexatious suits for divorce should be discouraged, especially where the object of the proceeding is to obtain temporary alimony.* This kind of litigation should not be' encouraged by the knowledge that the wife will recover her costs at all events.* But generally the wife should be allowed costs if she has brought the suit in good faith.^ Or, if she has been com- pelled by her husband's allegations to prepare a defense, she should be allowed her costs, although the husband dismisses the suit.* Where the husband withdraws his answer and allows a default to be taken against him, it is an abuse of discretion to tax as costs the fees and expenses unnecessarily incurred.' The costs of appeal are governed by similar con- siderations, but generally the wife is allowed costs even though the decree is affirmed, if the appeal is taken in good faith.* "Where the parties are equally at fault each should be condemned to pay his own costs.' But if the wife's suit 1 Coad V. Coad, 40 Wis. 393; Ben- ■• See Soper v. Soper, 29 Mich. 305; der V. Bender, 14 Or. 353, 13 P. 713; German v. German, 57 Mich. 356; De Rose v. De Eose, Hopkins Cli. Clark v. Clark, 4 Swab. & T. 111. 100; Thatcher v. Thatcher, 17 111. » Bishop v. Bishop, 17 Mich. 211 66; McKay v. McKay, 6 Grant, U. De Meli v. De Meli, 5 Civil Pro. 306 C. 330; Richardson v. Richardson, Stafford v. Stafford, 53 Mich. 533 4 Port. 467 r Wood v. Wood, 3 Paige, Ash v. Ash, 1893 Prob. 524. 4.54; Main v. Main, 50 N. J. Eq. 713, ^ Thorndyke v. Thorndyke, 1 35 A. 373. The wife may show Wash. Ter. 17.5. See contra, Moore that the husband is not entitled to v. Moore, 33 N. Y. Supp. 451. sue as a pauper. Moyers i;. Moyers, 'Firman u Firman, 109 111. 63; 58 Tenn. 495. For rule of costs in Kendall v. Kendall, 1 Barb. Ch. action forma pauperis, see Moon 610. V. Moon, 43 N. J. Eq. 403, 3 A. 350. SRayner v. Eayner, 49 Mich. 600; 2 Phillips V. Phillips, 37 Wis. 353; Whitmore v. Whitmore, 49 Mich. Sumner v. Sumner, 54 Wis. 643. 417. » See, also, Balkum v. Balkum, 83 ^ Cox v. Cox, 35 Mich. 461. Ala. 449. 762 TRIAL AND APPEAL. [§ 808. is brought without reasonable grounds the court may deny costs.' For the protection of clerks and other oflBoers the plaintiff is sometimes required by rule of court to pay all costs before the decree is entered. Such rule is void if it in any way interferes with the discretion of the court in ad- justing the costs that each party should pay.^ The decree for costs may be enforced by attachment for contempt or by execution.* § 808. New trials. — The practice of each state will gov- ern the granting of new trials. Generally the courts will grant new trials as in other cases and upon the same grounds.* In actions for divorce the courts are invested with a wider discretion than in other proceedings and may grant a new trial under circumstances not quite adequate in other pro- ceedings.^ The provisions of the code relating to new trials are generally applicable to proceedings for divorce or annul- ment of marriage.* A new trial may be granted as to the 1 Flower v. Flower, 3 P. & M. 133; Heal V. Heal, 1 P. & M. 800. estate V. Bates, 5 O. Ct. Eep. 18. 3 Cockef air v. Cockef air, 28 Abb. JN. Gas. 219, 7 N. Y. Sup. 170; Mc- Inall V. Mclnall, 17 W. N. C. 312. * Mercer v. Mercer, 114 Ind. 558, 17 N. E. 183; Ewing v. Ewing, 34 Ind. 468; Forrest v. Forrest, 25 N. Y. 501; Meyar v. Meyar, 3 Met. 298 ; Mercer v. Mercer, 1 Mao Ar. 655 ; Sharon v. Sharon, 79 Cal. 633, 33 P. 131; Chapman v. Chapman, 139 111. 886, 31 N. E. 806; Gardner v. Gard-. ner, 68 Mass. 485; Gholston v. Gholston, 31 Ga. 625; Tierney v. Tierney, 1 Wash. 568; Poertner V. Poertner, 66 Wis. 644; Ferguson -y. Ferguson, 3 Sandf. 307; Amory v. Amory, 6 Rob. (N. Y.) 514; Conger V. Conger, 77 N. Y. 432; Rindge v. Rindge, 23 Ind. 81 ; Matthi v. Mat- thi, 49 Cal. 90; Ulrich v. Ulrich, 8 Kan. 403; Janvrin v. Janvrin, 58 N. H. 144; Nutting v. Hurbert, 37 N. H. 346. See, also, Fitzgerald v. Fitzgerald, 3 Swab. & T. 400; Fol- som V. Folsom, 55 N. H. 78; Good- rich V. Goodrich, 2 P. & M. 393; Ahier v. Ahier, 10 P. D. 110; Taplin V. Taplin, 13 P. D. 100; Lee v. Lee, 2 P. & M. 409; Hitchcock v. Hitch- cock, 2 Swab. & T. 513; Morphett u Morphett, 1 P. & M. 703; Bacon V. Bacon, 2 Swab. & T. 53; Kolb's Case, 4 Watts, 154; McGonigal v. McGonigal, 30 New Brunswick, 1 Jago V. Jago, 8 Swab. & T. 103 Dolby V. Dolby, 2 Swab. & T. 228 Stoate V. Stoate, 2 Swab. & T. 384 Hill V. Hill, 2 Swab. & T. 407. 'Dunn V. Dunn, 11 Mich. 284; Bostwick I'. Bostwick, 78 Tex. 182. 6 It is not error to grant a new trial on account of newly dis- covered evidence that the plaintiff was not a resident of the state at the time he obtained the decree. § 809.] TEIAL AND APPEAL. 763 issues relating to property rights without disturbing the de- cree of divorce.' This is perhaps the safest course, as in some states the decree of divorce is an adjudication of all property rights depending upon the marriage relation. § 809. Appeal. — The right to appeal from a decree of di- vorce must be derived in some way from the statute, as the right did not exist at common law.^ Generally the statutes permitting appeals in actions in equity are held applicable to proceedings for divorce.^ A statute giving the right of appeal in all civil actions includes actions for divorce.* In some states the decree of divorce is reviewed on appeal as other chancery decrees.' In Indiana, Kentucky and Ohio the decree of divorce is final, but an appeal lies from orders granting alimony.* It has been said that " When a divorce Grant v. Grant (S. Dak.), 60 N. "W. 743. 1 Lake v. Bender, IS Nev. 361. 2 Simpson v. Simpson, 35 Ark. 487. See discussion of this point in dissenting opinion of Judge Mc- Kee in Sharon v. Sharon, 67 Cal. 199, citing statutes and cases. 3 Sharon v. Sharon, 67 Cal. 185,; Brotherton i\ Brotherton, 12 Neb. 73; Jungk v. Jungk, 5 la. 541. * Sherwood v. Sherwood, 44 la. 193. But see, contra, Lucas v. Lucas, 69 Mass. 136. 5 Fulton V. Fulton, 36 Miss. 517; Hitcbcox V. Hitchcox, 2 W. Va. 435; Robbarts v. Robbarts, 9 S. & R. 191 ; Brentlinger v. Brentlinger, 4 Rawie, 241; Brom v. Brom, 2 Whart. 94; Hoffman v. Hoffman, .80 Pa. 417; Hoffmire v. Hoffmire, 7 Paige, 60; Dunn v. Dunn, 4 Paige, 435; Smith v. Smith, 4 Paige, 432; Phelps V. Phelps, 7 Paige, 150; Burr r. Burr, 10 Paige, 166; Jeanr, v. Jeans, 3 Har. (Del.) 136; Sheaf e v. Sheafe, 9 Fost. (N. H.) 269. See, also, Hanberry v. Hanberry, 29 Ala. 719; Hansford v. Hansford, 10 Ala. 561; Underwood v. Underwood, 13 Fla. 434; Krone v. LinvUle, 31 Md. 138. 6 Taylor v. Taylor. 25 O. St. 71; Cox V. Cox, 19 O. St. 503; Tappan v. Tappan, 6 O. St. 64; Bascom v. Bascom, 7 O. (part 3), 135; Laugh- ery v. Lovighery, 15 O. 404; Price r. Price, 10 O. St. 315; Reed v. Reed, 17 0- St. 564; Boggess v. Boggess, 4 Dana, 307; Maguire v. Maguire, 7 Dana, 181; Thornberry v. Thorn- berry, 4 Litt. 251 ; Whitney v. Whitney, 7 Bush (Ky.), 530; Pence V. Pence, 6 B. Mon. 496 ; Bourne v. Simpson, 9 B. Mon. 454; Woolfolk V. Woolfolk (Ky.), 29 S. W. 742; Beall V. Beall, 80 Ky. 675; Davis v. Davis, 86 Ky. 32. The right to ap- peal is now denied in Indiana. See Keller v. Keller (Ind.), 38 N. E. 337; McJunkin v. McJunkin, 3 Ind. 30; McQuigg v. MoQuigg, 13 Ind. 394; Ewing v. Ewing, 24 Ind. 468; Wooley V. Wooley, 13 Ind. 663. 76i TEIAL AND APPEAL. [§ 809. was granted upon which one of the parties contracts new relations and a third party acquires rights, it cannot be that a process could be had to reverse a decree, the consequence of which would be the severance of all those new relations. Such anomalous mischief cannot be engrafted on the prac- tice of our courts except by "blear and legislative enact- ment." ' The answer to this objection is that a party " has no right to contract another marriage until he obtains a final decree of divorce, and this, in case of an appeal, cannot be had until the determination of the appeal." '^ The right to appeal is perhaps more valuable in actions for divorce than in other actions, for not only property rights are in- volved, but also the more important rights of remarriage and the custody of children. The interest of the state is best protected by permitting either party to appeal and have the case reviewed in the appellate court. "Without the right to appeal an innocent party may be greatly wronged b}"^ an erroneous decree, which could not be reversed.'' The time within which an appeal can be taken should be limited to a much shorter period than is allowed in other cases, and such seems to be the tendency of modern legislation.* A statute prohibiting appeal in actions for divorce may be un- constitutional where the state constitution permits the right to appeal in all civil cases.^ But see later cases: Willman v. 125. See similar argument in Willman, 57 Ind. 500; Sullivan v. Lucas v. Lucas, 69 Mass. 136, in Learned, 49 Ind. 252; Harrell v. which the right of review is denied. Harrell, 39 Ind. 185; Cochnower ^grotherton v. Brotherton, 12 V. Cochnower, 27 Ind. 253. For Neb. 73. the right to review by error or ap- 3 gge Davis v. Davis, 86 Ky. 32, peal in Missouri, see State v. Kansas 4 S. W. 822. City Ct. of Ap., 104 Mo. 419, 16 *See statutes limiting time for S. V/. 415; Hansford v. Hansford, appeal. Pennegar v. S., 3 Pick. 34 Mo. Ap. 262; Salisbury v. Sails- 244, 10 S. W. 305; Hemphill v. bury, 93 Mo. 683. 4 S. W. 717; Gold- Hemphill, 38 Kan. 220; Wilhite v. ing V. Golding, 74 Mo. 133; Nichols Wilhite, 41 Kan. 154, 21 P. 174 See V. Nichols, 39 Mo. Ap. 391 ; Childs interpretation of this statute 'in V. Childs, 11 Mo. Ap. 395. Locke r. Locke (R. I.), 30 A. 433. 1 Bascom v. Bascom, 7 O. (part 3), '•• Tierney v. Tierney, 1 Wash. § 809.] , TBIAL AND APPEAL. 765 An appeal will not lie unless a decree is rendered.' A mere order overruling a motion for nonsuit is not appealable.'* An order vacating an order for temporary alimony, entered after an order for a decree, is not a final order.' Where by stipulation the issues in a divorce suit are tried by a jury and a judgment entered on the verdict ordering that the bonds of matrimony be dissolved, but reserving all questions relating to alimony and custody of the children to be deter- mined upon a future hearing, the order is interlocutory and not final.* An order vacating or modifying a decree of di- vorce is, of course, a final order disposing of the case.' The decision of a lower court on the ruling of a master wiU not ordinarily be reviewed on appeal.* A decree of divorce will not be disturbed where the only question raised on ap- peal is the allowance of alimony.' The failure of one party to appeal from decree determining the issues of her cross- bill will not preclude her from resisting the claim of the other party.* The interest of the state requires that the record be examined and the appellant defeated if he has not established a case. This reason is sometimes overlooked and the whole record is not examined unless there has been a cross-appeal.' Generally an appeal should be dismissed Avhere the appellant has availed himself of the benefits of the decree ; and this is especially true where, pending an appeal, the appellant has married another.'" Orders grant- ing or refusing an allowance of temporary alimony and Ter. 568; Simpson v. Simpson, 25 6 O'Brien v. O'Brien, 19 Neb. 584, Ark. 487. 27 N. W. 640. 1 Pearson v. Pearson, 7 Peck, 22, «Pullen v. Pullen, 41 N. J. Eq. •overruling Pillow v. Pillow, 1.3 417. Tenn. 420. ' Ensler v. Ensler, 72 la. 159. 2 Christie v. Christie, 53 Cal. 26. 8Nadra v. Nadra, 79 Mich. 591, 44 'McNevin v. McNevin, 63 Cal. N. W. 1046. 186. 9HoflEwHoff,48Mioh. 281. See, * Lake v. King, 16 Nev. 215. See, also, Birkby v. Birkby, 15 111. 120. also, Hunter v. Hunter, 100 111. 519; i« Garner v. Garner, 38 Ind. 139; Knowlton v. Knowlton, 40 lU. Ap. Stephens v. Stephens, 51 Ind. 543. 588. But see contra, Shaw v. Shaw, See, also, Baylies, New Trials and 9 Mich. 164 Appeals, 18, on waiver of appeal. 7QG TEIAL AND APPEAL. [§ 809, suit money;' or fixing property rights;^ or granting the custody of children,^ are final orders subject to review. Such orders are not merely interlocutory, because they are in the^ nature of judgments, and, no matter how erroneous or op- pressive, may be enforced by execution, attachment, injunc- tion or proceedings in contempt. The right to have such order reviewed on error or appeal would afford the party no relief, since years might and generally do elapse before a final decision can be reached, and in the meantime valuable rights may be violated. This is, however, a controverted question, and other authorities maintain that such orders cannot be reviewed until a final decree upon the merits has been rendered.* The question is sometimes regulated by the code, and it seems that such orders are final orders within its definition. But some of the courts place a difl'erent and perhaps erroneous construction on the code provisions, and hold that such orders do not involve the merits of the case and are not final.' "While such order is a step in the pro- ceeding not involving the merits of the controversy, it is, nevertheless, a money judgment as final as any judgment at law, and may be enforced at once unless an appeal is per- mitted. For abatement of appeal on the 31 P. 1130; Boyd v. Boyd (Cal.), 31 death of one party, see § 729a. P. 1108. ' 1 Sharon v. Sharon, 67 Cal. 185 Lochnane v. Lochnane, 78 Ky. 467 White V. White. 86 Cal. 216, 24 P. 1030; Hecht v. Heoht, 28 Ark. 92 Golding V. Golding, 74 Mo. 133 sPittman v. Pittman, 3 Or. 472;. Irwin V. Irwin (Ky.), 28 S. W. 664; Laplin, In re (La.), 8 So. 615. See contra, Price v. Price, 55 N. Y. 656; Rogers V. Rogers (O.). 36 N. E. 310; Blake v. Blake, 80 111. 532; Foss v. Thomson v. Thomson, 5 Utah, 401. Foss, 100 111. 576; Foote v. Foote,23 16 P. 400; Waring v. Waring, 100 111. 425; Casteel v. Casteel, 38 Ark. N. Y. 570. 477: Blair v. Blair, 74 la. 311, 37 « Call v. Call, 65 Me. 407; Russell N. W. 385; Williams v. Williams, ». Russell, 69 Me. 336 ; Sparhawk i;. 29 Wis. 517; Reed v. Reed, 17 O. St. Sparhawk, 120 Mass. 390; Ross v. 563; King v. King, 38 O. St. 370; Ross, 47 Mich. 186; Cooper v. May- Graves V. Graves (Ohio), 33 N. E. hew, 40 Mich. 528. See, also, Hay- 720. wary v. Hayward (Md.), 26 A. 537. 2 Lake v. Lake, 17 Nev. 230, 30 P. 5 Aspinwall v. Aspinwall, 18 Neb.. 878; Storzynski v. Storzynski (Cal.), 463, 25 N. W. 633; Wyatt v. Wyatt, § 809.] TRIAL AND APPEAL. 76T The amount of alimony to be allowed is of course within the discretion of the court, and the exercise of that discre- tion will not be reviewed; but where the facts are such that on general principles of equity the wife is not entitled to alimony, the question is not one of discretion but of law, and is subject to review by the appellate court.^ It then becomes a question of power in the lower court, for where there is no power there is no discretion.'^ Ordinarily the appellate court will not interfere with the award of perma- nent alimony made by the trial court unless there has been a clear and manifest abuse of discretion.' If the trial court has evidently overlooked some impor- tant element in computing the amount of alimony, so that the amount awarded the wife is manifestly too small, or other\vise inequitable, the appellate court may modify the decree and increase the amount. But as the condition of the parties and the value of property may have changed during the appeal, the safest course is to reverse the order for further proceedings in accordance with the opinion.* While the amount of property which may be awarded to the wife in lieu of alimonj' is left to the discretion of the trial court, the decree may be reviewed on appeal, and the 2 Idaho, 219, 10 P. 238; Earles v. Ind. 159; Simons u Simons, 107 Ind. Earles, 26 Kan. 178. 197; Henderson v. Henderson, 110 1 Collins V. Collins, 71 N. Y. 269. Ind. 316; Eastes v. Eastes, 79 Ind. 2 Kennedy v. Kennedy, 73 N. Y. 363; Peck v. Peck, 113 Ind. 168, 15 369; Brinkley v. Brinkley, 50 N. Y. N. E. 12; Merceru. Mercer, 114Ind. 184; Townsend v. Hendricks, 40 558; Stewartson v. Stewartson, 15 How. 143, 161. See, also. Appeal 111. 145; Davis v. Davis, 86 111. Ap. from order for temporary alimony, 643; Lane v. Lane, 22 111. Ap. 529; § 862. Temporary alimony on ap- Lind v. Lind, 37 HI. Ap. 178 ; Wooley peal, see § 863. Attorney fees on v. Wooley, 24111. Ap. 431; Campbell appeal, §§ 879, 880. Appeal from v. CampbfeU, 73 la. 483, 35 N. W. order relating to custody and sup- 522; "Wagner v. "Wagner, 39 Minn, port of children, see § 984. 394, 40 N. "W. 360; Cowan v. Cowan, • 3 Douglas V. Douglas, 81 la. 258, 10 Colo. 540, 16 P. 315; "Wyatt v. 47 N. "W. 93; Rossman v. Rossman, "Wyatt, 3 Idaho, 219, 10 P. 228. 63 Mich. 429; Cleghorn v. Cleghorn, < Yost v. Yost (Ind.}, 41 N. E. 11. 66 Cal. 309; Buckles v. Buckles, 81 768 TEIAL AND APPEAL. [§ 809. amount changed, where there has been an abuse of discre- tion or a mistake of law or fact.' Ordinarily the decree is not disturbed ; but there are many instances in the reported cases where decrees dividing the property have been changed by the appellate courts.^ The decree of distribution may be reviewed in some states without an appeal from the decree of divorce. If the supreme court should arrive at the con- clusion that the divorce should have been denied, the decree of distribution may be changed, and the defendant awarded the property.' In some states the supreme courts have no jurisdiction to disturb a decree of divorce; but in such cases the distribution of property or the amount of alimony can be changed.* Where the decree of the lower court was clearly erroneous, the decree cannot be reversed, but the in- nocent wife will be allowed alimony.* When the amount is excessive, or the trial court has overestimated the husband's means or the wife's necessities, or the decree is burdensome or inequitable in view of the circumstances of the case, the decree will be reduced or modified by the appellate court.* Or, where alimony is denied, the reviewing court may re- mand the cause for further proof and direct the lower court to award alimony.' An examination of the cases last cited will show that the reviewing courts exercise considerable freedom in modifying decrees for alimony. Such decrees 1 Robinson v. Robinson, 36 Tenn. ilton, 37 Mich. 603; Ross v. Ross, 78 440. 111. 403; Cowan v. Cowan, 16 Colo. 2Bovo V. Bovo, 63 Cal. 77; Es- 835, 36 P. 934; Hickling v. Hick- linger V. Eslinger, 47 Cal. 63; Eiden- ling, 40 IlL Ap. 73; Turner v. Tur- muller v. Eidenmuller, 37 Cal. 364; ner, 80 Cal. 141; Rourke v. Rourke, Brown v. Brown, 60 Cal. 579. See, 8 Ind. 437;' Robinson v. Robinson, also, Kashaw V. Kasha w, 3 CaL 313. 26 Tenn. (7 Humph.) 440; Will- SEnsleru Ensler, 73Ia. 159. iams v. Williams, 6 N. Y. Supp. * Pence v. Pence, 6 B. Mon. 496. 645; Hardy v. Hardy, 6 N. Y. Supp. 5 Davis V. Davis, 86 Ky. 33,4 S. 300; Sleeper v. Sleeper, 65 Hun, W. 833. 454, 30 N. Y. Supp. 337; Small v. 6Ensler v. Ensler, 73 la. 159, 33 Small, 38 Neb. 843, 45 N. W. 348. N. W. 384: Andrews v. Andrews, 'Reynolds v. Reynolds, 93 Mich. 69 111. 609; McGrady v. McGrady, 104 48 Mo. Ap. 668; Hamilton v. Ham- § 809.] TEIAL AND APPEAL. 769 are not to be accredited as the ordinary findings of a trial court ; for there may be both errors of computation and of findings of fact, where the evidence is conflicting, as well as •errors of law. "Whether under the circumstances alimony should be granted is a matter of law. The amount that ■should be granted is a matter of discretion. To modify or reverse the order for alimony the appellate court should review the whole testimony relating to the conduct of the parties, for the amount awarded by the trial court may have been influenced by the conduct of the parties, and other cir- cumstances disclosed in the evidence on the trial of the cause for divorce. Ordinarily the decree for alimony is not dis- turbed when the evidence is conflicting and the order is not manifestly inequitable. The appeal generally brings the case up to the appellate court for trial de novo, but such court wiU treat the finding of the court as equal to the verdict of a jury and will not disturb either where the evidence is conflicting and contra- ■dictory, although the reviewing court might reach different •conclusions of fact.^ In such case the appellate court should be fuUy convinced that the lower court, with all its advan- tages for ascertaining the truth, has rendered a decree with- out suificient evidence.'' Where the charge of adultery is not sustained by direct proof, and the finding of the court is based upon inferences drawn from circumstances, the review- ing court will examine the evidence to ascertain whether the circumstances warrant the inferences. The judgment win be reversed if the evidence is insufficient, for such evi- -dence is, in the eye of the law, no evidence.^ The rule that iGibbs V. Gibbs, 18 Kan. 419 Powers V. Powers, 30 Neb. 529 ■Callahan v. Callahan, 7 Neb. 38 143 lU. 374, 30 N. E. 672; Corrie v. Corrie, 46 Mich. 235; Darrow v. Darrow, 159 Mass. 363, 34 N. E. 370. Fuller V. Fuller, 17 CaL 605; Mo 2 Nicholas v. Nicholas, 50 Mich. Gonegal v. McGonegal, 46 Mich. 66 ; 163. Carter v. Carter, 153 IlL 434, 38 N. E. 3 Pollock v. Pollock, 71 N. Y. 137. :948; Ayers u Ayers, 41 111. Ap. 336, 49 770 TEIAl AND APPEAL. ' [§ 809^„ the verdict of a jury will not be disturbed where there is ' some evidence to support it does not apply to actions for di- vorce. The judge must be satisfied the cause for divorce is proven by sufficient and satisfactory evidence.' The decree: of divorce maybe affirmed, and the portion of the decree re- lating to alimony may be modified or reversed and remanded to the lower court for a new trial.^ 1 Paulson V. Paulson (Tex.), SI S. * Reynolds v. Reynolds, 93 Mich, W. 778. 104 PROCESS AND CONSTRUCTIVE SERVICE, § 815. Process or summons. 816. Waiver of process. 817. Constructive service. 818. Defective service, when void. 819. The affidavit of non-resi- dence. 820. Sheriff's diligence before publication. § 831. The notice. 822. Mailing copy of summons and petition to defendant. 823. Proof of publication. 824. Personal service out of the state. 835. Decree based on construct- ive service, how vacated. § 815. Process or summons. — The process in divorce suits is the same as in other suits unless the statute contains some special provision relating to the subject. In every case the provisions of the local statute must be followed,, otherwise the service is void and the court will have no jurisdiction to render a decree. The sufficiency of personal service upon the defendant in a divorce suit need not be noticed here, as it would involve questions of local practice- and the interpretation of statutes which are changing from time to time. The cases cited below may be consulted.' The practice as to the form and service of the summons or sub- poena is generally the same as the chancery practice where the divorce suit is classed as a suit in equity.- Where the statutes relating to divorce contain no special provision con- 1 Spafford v. Spafford, 16 Vt. 511; Leavitt v. Leavitt, 135 Mass. 191; Phelps V. Phelps, 7 Paige, 150; Lyon V. Lyon, 21 Conn. 185; Temple v. Temple, 81 Tenn. 160; Brown v. Brown, 15 Mass. 389; Wanamaker V. Wanamaker, 10 PhiL 466; Ed- wards V. Edwards, 3 Pitts. 333; Tillman's Appeal, 99 Pa. 286; Harter v. Barter, 5 O. 318; Smith V. Smith, 6 Mass. 36; Houston v. Houston, 3 Mass. 159; Rochester v. Rochester. 1 Or. 307; Young v.. Young, 18 Minn. 72, 90; Shetzler V. Shetzler, 3 Edw. Ch. 584; Dunn V. Dunn, 4 Paige, 435; Bratton v, Bratton, 79 Ind. 588. ^ Welch V. Welch, 16 Ark. 537. T72 PROCESS AND CONSTEUCTIVE SEEVICB. [§ 816. cerning the notice in divorce suits, the summons must con- form to the statutes or provisions of the code relating to suits in general, and must be indorsed and served as other summons.^ The indorsement must show the nature of the relief demanded ; as, " suit for a divorce from the bonds of matrimony ; " or, " action for divorce and alimony ; " or, " action for a separation." Where the statute directs that the summons in an action for divorce is required to. be in- dorsed as follows: "Action to annul a marriage;" or, "ac- tion for a divorce ; " or, " action for a separation," accord- ing to the relief demanded, the indorsement " action for a divorce " on a summons in a suit for a separation will not render the order for alimony void, but is a mere irregularity, of which a defendant, who has permitted a default to be en- tered against him, cannot complain unless he was prejudiced thereby.^ Actual notice should be given the defendant if possible, especially if he is a resident of the state.' A fail- ure to give actual notice to a non-resident, where no reason appears for not doing so, is a suspicious circumstance which may warrant a dismissal of the case where the evidence is not satisfactory in some respects.'' As in other cases, a gen- eral appearance in the divorce suit is a. waiver of any defects in the process or its service.^ Where there has been no serv- ice of process, either actual or constructive, and no appear- ance by defendant, the court has no jurisdiction, and it is error to render judgment.* § 816. Waiver of process, — It is not an evidence of col- lusion for the defendant to waive the issuance of process or to accept service of it, but it opens the way for fraud. The court should be satisfied that such waiver is genuine, and 1 Brown V. Brown, 10 Neb. 349. 333; Johnson v. Johnson, 13 Bush, 2 Rudolph V. Rudolph, 19 Civil 485; White u. White, 60 N. H. 310; Pro. 434, 13 N. Y. Supp. 81. Jones v. Jones, 108 N. Y. 415. ' Labotiere v. Labotiere, 8 Mass. * Champon v. Champon, 40 La. 383; Smith v. Smith, 9 Mass. 433; An. 38; Jurgielwiez v. Jurgiel- Eandall v. Randall, 7 Mass. 503. wiez, 24 La. An. 77; Townsand v. * Clark V. Clark, 48 Mo. Ap. 157. Townsand, 31 111. 540. * Stanbridge v. Stanbridge, 31 Ga. § yl7.] PEOCESS AND CONSTKUCTIVE SEEVICE. 173 that the signature of the defendant was not obtained .by force or fraud.' Ordinarily the acceptance of service is good evidence that the defendant has notice of the suit, and is equal to an appearance in the suit.'^ In New Jersey the acknowledgment of service of a copy of the citation in a divorce suit is not sufficient unless the defendant is served with a copy of the petition and also enters his appearance.''' A Avritten admission of service and an agreement to " waive any other service " was held insufficient where the defend- ant was not a resident of the state, and the required order of publication had not been obtained.* § 817. Constructive service.— Every state has the power to regulate the domestic relations and determine the civil status of its inhabitants, and this involves the power to au- thorize and prescribe the manner of obtaining jurisdiction in a suit to change the marital relation of a party who re- sides in the state, although personal service cannot be had upon the other party to the marriage. " The state," says Justice Field in Pennoyer v. Neff^ "has absolute right to prescribe the conditions upon which the marriage relations between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties, guilty of acts for which, by the law of the state, a dissolution may be granted, may have removed to a state where no dissolution is permitted. The complaining party would fail if a divorce were sought in the state of defendant, and if application cannot be made to the tribunals of complainant's domicile in such case, and proceedings be there instituted without personal service of process, or personal notice to the offend- ing party, the injured citizen would be without redress." * 1 Rouse u Rouse, 47 la. 422; Will- of publication. See criticism in man v. Willman, 57 Ind. 500. Van Fleet, Col. At., § 466. See 2Keeler u Keeler, 24 Wis. 522. Wright v. Mahaffey, 76 la. 90, 4* 3 Stone V. Stone, 25 N. J. Eq. 445. N. W. 113. < Weatherbee v. Weatherbee, 20 ^95 u. S. 714. Wis. 499. This case is wrong in * See, also. Hunt v. Hunt, 72 N. Y. principle, since the defendant had 217; Thompson v. Thompson, 91 actual notice, and waived the order Ala. 591 ; King v. King, 84 N. C. 32. 'T74 PEOOESS ANB CONSTE0CTIVE SERVICE. [§ 817. One state cannot invade the jurisdiction of another to serve its process therein and compel the non-resident to ap- pear before its tribunals and have his rights determined by its own laws. This being true, a party guilty of a cause for divorce might avoid a dissolution of the marriage by desert- ing and remaining in another state. A wife who is guilty of adultery might avoid divorce and loss of dower by re- moving .to another state. Her husband could not obtain personal service on her, and would be compelled to submit to the double wrong of adultery and desertion. The inter- est of the state and good public policy require that the marriage relation be dissolved where the parties refuse to live together and to perform the duties of the marriage. Parties who live in separation are apt to contract secret marriages or indulge in the grossest immoralities, and in- stead of maintaining a home and rearing children become the cause of public scandal and a menace to public morals. The deserted party has a right to free herself from a status which will prevent her from marrying again, and to enforce this right the state has found it expedient to dissolve the marriage in certain cases, although the defendant is a non- resident. In order to do this the proceeding is made public, and a substituted service is provided for to notify the de- fendant, if possible, that the divorce will be granted for cer- tain causes and on a certain day, unless he appears and defends. "The right of the legislature to prescribe such notice and to give it effect as a process rests upon the ne- cessity of the case, and has long been recognized and acted upon." 1 The statutes authorizing constructive service in all cases where the defendtot is a non-resident include suits for diyorce.^ In states where divorce suits follow the equity practice, constructive service may be had as in equity cases.' 1 Cooley's Const. Lim. 403. For 3 Temple v. Temple, 81 Tenn. 160 nature and effect of the decree of Lawrence v. Lawrence, 7,3 111. 577 diyorce in proceeding in rem, see McJunkin v. McJunkin, 3 Ind. 30 §§ 5, 37, 83. Smith v. Smith, 30 Mo. 166. 2 Lewis V. Lewis, 15 Kan. 181; Hare v. Hare, 10 Tex. 855. ■§ 818.] PEOOESS AND CONSTEUOTIVE SEEVIOB. Y75 If the defendant is a resident of a foreign country, the prac- tice is the same as though such party resided in another state.^ § 818. Defective service, when Toid. — It has generally been held that the requirements of the statutes for impart- ing notice must be strictly followed, otherwise the decree of divorce is void and open to collateral attack in any pro- ceeding.* And it has been the fashion in the last generation to pick out some small defect in the preliminary steps that must precede the published notice, or some minor technical- ity in the notice or in the proof that it was published a suf- ficient length of time, and overturn the decree, regardless of the merits of the case and regardless of the fact that the defendant was a non-resident as alleged. Great injustice has been done to innocent parties who have acquired rights under Such decrees. Titles have been overturned, securities destroyed and other property rights disturbed. Even the home and the marriage relation, ordinarily guarded by every intendment and presumption of our law, have been destroyed by so simple a thing as a mistake in a preliminary affidavit. The absent party who has deserted and neglected all his marital duties and acquiesced in the decree has been allowed to destroy a happy second marriage, to bastardize the chil- dren and wreak a most enduring revenge by securing a con- viction of his former partner on a charge of bigamy. The only reason which can be given for holding a decree void where there has been a defective but substantial compliance with the statute is that the statute directs certain things to be performed in a certain manner, and if the court has pro- ceeded without these prerequisites it has acted without due process of law.' This is only true where the defendant ap- pears in that proceeding and demands his rights. But if the defendant is a non-resident, the object of the statute is fully attained if a proper notice is actually published during the required time. Suppose all the prehminaries before the publication have not been compUed with, the notice will give 1 Trevino v. Trevino, 54 Tex. 261. ' Morey v. Morey, 37 Minn. 365. ■2 Eeno on Non-residents, § 354. T76 PEOCESS AND CONSTEUCTIVE SEEVICE. [§ 818, the public and the defendant the same information. Such defects and irregularities have been held to be sufficient to deprive the court of jurisdiction and render the decree of divorce void.^ But the correct interpretation of such stat- utes is believed to be that their provisions are directory and are satisfied with a substantial compliance which fully in- forms the public of the pendency of the suit and the nature^ of the relief demanded, and that such irregularities and er- rors are cured by the decree of the court.^ And this seems- to be in conformity with recent adjudications where decrees, of divorce were attacked in collateral proceedings.' In every case where there has been constructive service and the defendant has not appeared, the court should not proceed to hear the plaintiff's evidence until it is satisfied by a personal examination of the record and the filings in the case that every requirement of the statute has been complied with, and that proof of such compliance is entered on the records of the court. This duty should not be performed in a hasty and perfunctory manner, as is generally the case where a court is hearing ex parte applications and entering defaults. The question of jurisdiction is vital and all-impor- tant in decrees of divorce. Ordinary decrees affect only the parties to the suit, bat the decree of divorce is far reaching'. It will not only dissolve the marriage relation but will de- 1 Atkins V. Atkins, 9 Neb. 191; Oodfrey v. Godfrey, 27 Ga. 466;, Werner v. "Werner, 30 lU. Ap. 159; Stone v. Stone, 35 N. J. Eq. 445. Collins V. Collins, 80 N. Y. 1 ; Morey 2 See Van Fleet, Col. At., §§ 329- V. Morey, 27 Minn. 265; Beach v. and 330. See, also, Cason v. Cason, Beach, 6 Dak. 871, 43 N. W. 701; 31 Miss. 578; Banta v. Wood, 33 Ig,. Wortman v. Wortman, 17 Abb. Pr. 469; Ward v. Lowndess, 96 N. C. 66; Burton v. Burton, 45 Hun, 68; 867, 2 S. E. 591. Cheeley v. Clayton, 110 tJ. S. 701, 4 3 Carr's Adm'r v. Carr, 93 Ky. 552, S. C. E. 328; McBlain v. McBlain, 18 S. W. 453; In re Newman, 75 77 Cal. 507, 20 P. 61. See, also, di- CaL 213, 16 P. 889; Hemphill v. Toroe cases requiring strict per- Hemphill, 38 Kan. 220, 16 P. 457; f ormance of the statutory require- Calvert v. Calvert, 15 Colo. 390, 24 ments. Smith u Smith, 4 la. 266 Pinkney v. Pinkney, 4 la. 334 Pluminer v. Plummer, 37 Miss. 185 P. 1048; Ensign v. Ensign, 45 Kan. 613, 26 P. 7; Anthony v. Eice, 110 Mo. 233, 19 S. W. 433. § 819.] PEOCESS AND CONSTRUCTIVE SEEVICE. 77T termine the rights of heirs for several generations; the title- of the husband and the wife to the real estate which they own or may acquire during the life-time of both ; the legiti- macy of children of a subsequent marriage ; the status and property rights of a second wife, and the liability of the- parties to the subsequent marriage to a prosecution for big- amy. These rights and liabilities are before the courts though the parties themselves are not. Every precaution should be observed, therefore, to see that all the preliminary requirements have been complied with, that a sufficient no- tice has been published for the required length of time in a, paper of general circulation, and that proof of such publica- tion appears in the record. If such proceedings are defect- ive or irregular, the court must continue the cause until a, valid service is obtained.' But if the proceedings are regu- lar the court must proceed to take the proofs.^ § 819. The affidavit of non-residence. — The statutes re- quire the fact that the defendant is a non-resident to ap- pear in the record, either in the allegations of the petition,* or by an affidavit that personal service cannot be made on the defendant within the state.* Such affidavit is jurisdic- tional, being the foundation of the constructive service ; and it is held that a decree obtained without such affidavit wilt render the proceedings erroneous, although all the subse- quent requirements have been complied with, and the notice has been duly published.^ The omission of any material aUegation from the affidavit will render the service void.* Chase v. Chase, 61 N. H. 123. 5 Parish v. Parish, 33 Ga. 658; At- 2Kingt'. King, 84N. C. 32; Stan- kins v. Atkins, 9 Neb. 191. Seer bridge v. Stanbridge, 31 Ga. 323; contra, Sweely v. Van Steenburg,. Rogers v. Rogers, 18 N. J. Eq. 445. 69 la. 696, 26 N. "W\ 78; Van Fleet- 3 Anon., 5 Mass. 196; Mace v. on Col. At., § 341, and reasons given Mace, 7 Mass. 312; Choate v. in the preceding section. Choate, 3 Mass. 391; Phelps v. « Atkins v. Atkins, 9 Neb. 191 f Phelps, 7 Paige, 150; Bland w Bland, Beach v. Beach, 6 Dak. 371, 43 N, 3 P. & M. 233. W. 701 ; Wortman v. Wortman, IT 4 Morrison v. Morrison, 64 Mich. Abb. Pr. 66. See, also, as sustain- 53, 30 N. W. 903. ing text, Harris v. Chaflin, Sft 118 PEOOESS AJTO CONSTKUCTIVE SEETTOE. [§ 819. The failure to show that any diligence was used to ascertain defendant's residence renders the affidavit fataUy defective if such allegation is required by statute.^ But minor defects and the omission of allegations that do not affect the juris- diction of the court will not render thd decree void, although the statute has not been strictly followed.^ The affidavit should contain sufficient facts to show that' the cause of action is one in which constructive service may be had, but it need not contain a complete statement of a cause of action.' The rule by which the sufficiency of the affidavit of non- residence is determined is stated as follows : " If there is a total want of evidence upon a vital point in the affidavit the court acquires no jurisdiction by publication of the sum- mons ; but where there is not an entire omission to state some material fact, but it is insufficiently set forth, the pro- ceedings are merely voidable." * Kan. 543, 13 P. 830; Towsley v. Mc- Donald, 33 Barb. 604; Manning v. Heady, 64 Wis. 630, 25 N. W. 1; Drysdale v. Biloxi Canning Co., 67 Miss. 534, 7 So. 541 ; Von Eliade v. Yon Ehade, 2 T. & C. (N. Y.) 491. 1 Yorke v. Yorke (N. Dak.), 55 N. "W. 1095. 2Carr's Adm'r v. Carr, 93 Kj. 553, 18 a W. 453; Hynes v. Old- ham, 3 B. Mon. 266; StegaU v. Huff, 54 Tex. 193. 3 Calvert v. Calvert, 15 Colo. 390, 34 P. 1043. See forms of affidavit in Shedenhelm v. Shedenheto, 21 Neb. 387; Donnelly v. West, 66 How. Pr. 428; O'Connell v. O'Con- nell, 10 Neb. 390. Compare Atkins V. Atkins, 9 Neb. 191, 2 N. W. 466, and Claypoole v. Houston, 12 Kan. 324. See, also. Shields v. MiUer, 9 Kan. 890; Harris v. Chaflin, 36 Kan. 543, 13 P. 830; Essigu Lower, 120 Ind. 339, 31 N. E. 1090; Carrico V. Tarwater, 103 Ind. 86, 3 N. E. 327; Forbes v. Hyde, 31 CaL 343. Although the affidavit of plaintifiE's attdrney may be valid, as was held in O'OonneU v. O'Connell, 10 Neb. 390, the safest course for the at- torney is to require the plaintiff to make the affidavit. See proceed- ings in Morton v. Morton, 16 Colo. 358, 27 P. 718. In New York, an order of publication cannot be ob- tained upon the plaintiff's affidavit alone. Other proof that defend- ant is a non-resident is required. Hallu Hall, 10 N. Y. Supp. 238. * Atkins V. Atkins, 9 Neb. 191. Section 78 of the Nebraska Code provides that, " before service can be made by publication, an affida- vit must be filed that service of summons cannot be made within this state on the defendant or de- fendants to be served by publica^ tion, and that the case is one of § 820.] PEOCESS AND COKSTETJOTITE SBEVICE. 779 § 820. Sheriflf's diligence before publication.— Before service by publication can be made in Colorado, the statute requires the " usual exertion on the part of the sheriff to serve the summons." The object of this statute is to obtain a personal service of the summons, if possible, during the life of the writ, and it is necessary that the sheriff should retain the writ until return day.^ And it is held by the courts of that state that unless this is done the subsequent publication of notice will not confer jurisdiction on the court to render a decree.^ Such decree is absolutely void and subject to collateral attack, and is not rendered valid because it was not attacked within the statutory time for those mentioiied in the preceding section." Section 79 requires the notice to specify when defendants are required to answer. In this case the affidavit stated that the " cause is one of those mentioned in section 77," but did not state the nature of the cause of action. The summons published did not notify the defendant the date when she would be required to answer, but notified her that unless she an- swered on or before a certain day "the petition would be taken as true." It was held that the affida- vit and notice were so defective that the court had no jurisdiction. It would seem that the affidavit was sufficient, for when read with the petition on file it disclosed that the action was a suit for divorce. The notice was in the usual form and disclosed when the defendant was required to answer. The rec- ord of this case discloses enough to sustain the jurisdiction of the court, as it was a substantial com- pliance with the statute. The Code of Dakota (sec. 104) provides that, "where the person on whom the service of the sum- mons is to be made cannot, after due diligence, be found within the territory, and that fact appeared by affidavit to the satisfaction of the court or judge thereof, . . . naay grant an order that the serv- ice be made by the publication of a summons.'' The affidavit stated that defendant could not, after due diligence, be found within the territory, and that the affiant did not know her residence or where- abouts, and could not, by reason- able diligence, ascertain the same. It was held that the affidavit was insufficient and the decree void for want of jurisdiction, because the efforts to find defendant were not stated at length in the affidavit. Beach v. Beach, 6 Dak. 371, 43 N. W. 701. This ruling was not nec- essary to a determination of. the case, as it appeared that the decree was obtained by fraud in conceal- ing the proceedings from the wife. 1 Palmer v. Co^dry, 3 Colo. 1. 2 Vance v. Maroney, 4 Colo. 47. 780 PKOCESS AND COKSTEUCTIVE SEEVICE. [§ 821. setting such decree aside.' The same ruling was made in Michigan under similar facts.^ Judge Cooley dissented and pointed out that the trial court had the right, to determine- the jurisdictional fact, that the defendant was a non-resident^ from the return and other evidence before it. The statute^ did not require anything more than a showing that the pro- cess issued could not be served by reason of the absence of the defendant from the state. " I cannot think it possible," said he, " that it was ever intended jurisdiction of a case should depend upon a circumstance so entirely unimportant as that a subpoena which could not be served was left in the register's office before its return day, instead of being kept in the office of the sheriff or of the party." In all of the above cases the non-residence of the defendant, which is the jurisdictional fact authorizing the court to order publication,, was shown by the record. This fact, and the publication of a notice otherwise valid, would seem to be sufficient to. give the court jurisdiction regardless of minor defects in the proceedings before the notice. § 821. The notice. — The notice should conform to the order of publication, be directed to the defendant, inform- ing him of the nature of the action and the time for appear- ance, and should fulfill all the statutory requirements.^ A defective notice will not render the decree void unless the defect is such a,s to leave some material fact ambiguous and uncertain. If the time for appearance fixed by the notice does not give the defendant the full time allowed by stat- ute, the decree is void and subject to collateral attack.* The- court will not obtain jurisdiction if the notice is not pub- lished the required length of time.^ As a defense to an in- 1 Clayton v. Clayton, 4 Colo. 410; of the action. Shedenhelm v. She- Israel V. Arthur, 7 Colo. 85, 1 P. denhelm, 31 Neb. 387. 438; Cheeley v. Clayton, 110 TJ. S. ^Morey v. Morey, 27 Minn. 265, 6. 701, 4 S. C. E. 338. N. W. 783. But see Van Fleet, CoL ^Soule V. Hough, 45 Mich. 418, 8 At., § 490, and cases cited. ' N. W. 50, 159. 5 Tucker v. People, 122 111. 583, 11 ^It need not state the cause for N. E. 765; Bachelor v. Bachelor, 1 divorce, but must state the nature Mass. 356. § S22.] PKOOESS AND CONSTEOOTIYE SERVICE. 781 146; Kiefer v. Kiefer, 4 Colo. Ap. 339; McGrath u MoGrath, 2 Chan. 506, 36 P. 631; Shaw v. Shaw (la.), Chamb. 411; Fisk v. Fisk, 22, La. 61 N. W. 368. An. 401. ' ' ■i Starkweather v. Starkweather, svihcent v. Vincent, 17 N. Y. 29 Hun, 488. See contra, Ober v. Supp. 497, 16 Daly, 534; Bowman Ober, 7 N. Y. Supp. 843. v. Bowman, 34 111. Ap. 165. § 853.] TBMPOEAKY ALIMONY. 797 termine from the showing made whether a marriage cere- mony had been performed. The showing on this point was very conflicting ; but it was admitted that the parties had cohabited as husband and wife for' a long time, and that he introduced her as his wife on several occasions. The evi- dence was so conflicting that the court could not readily de- termine the real issue in the case. But the court decided such issue in advance, and refused temporary alimony be- cause no marriage was admitted or proved.^ The writer believes the doctrine announced in this case is unsound, and the method pursued is contrary to the authorities. This opinion does not appear to have met with approval else- where. In the famous case of Sharon v. Sharon,'^ the plaintiff al- leged a marriage contract in writing, which, by its terms, was to be kept secret, and that afterwards the parties con- summated the marriage and recognized her in public and private as his wife, but had subsequently deserted her and neglected to stipport her, and prayed for divorce and alimony. The defendant denied the marriage and also de- nied that he ever introduced plaintiff as his wife, or spoke of her as such in the presence of other persons, or that plaintiff ever spoke of him as her husband in the presence of others, or that the parties were ever reputed, among their mutual friends, to be husband and wife, or that there was at any time any mutual, open recognition of such relation- ship by the parties, nor any pubhc assumption by them of the relation of husband and wife. The answer alleged that the contract of marriage was a forgery. It was held not an .abuse of discretion to award temporary alimony under such circumstances. Where the marriage is denied temporary alimony should not be granted to the wife on her affidavit alone. Other- wise an adventuress could by perjury compel a man to pay her temporary alimony as long as her unfounded suit could 1 York V. York, 34 la. 530. 2 75 Cal. 1. 798 TEMPOEAEY ALIMONY. [§ 854- be "spun out."' The denial of the marriage must be over- come by further proof.^ The wife's affidavit is sufficient, however, where the showing made by the husband discloses- that the parties have long cohabited as man and wife, and that he has attempted to obtain a divorce.^ § 854. Same — Probable cause for divorce or a valid defense. — "When the wife applies for temporary alimony and suit money, she must show that she has a probable cause- for divorce, or, if she is the defendant, that she has a valid defense to the suit.* This is required to prevent imposition upon the court and to protect the husband from being com- pelled to assist the wife in her suit where she has no cause of action and the suit must fail. G-enerally the court refuses to enter into an examination of affidavits to determine the merits of the case before allowing alimony.^ But the plead- ings are inspected, and alimony is refused if her pleadings, do not state a cause of action or a defense.*^ This is not an absolute rule, however. The court, being free to exercise its discretion, may award alimony where the wife's pleading is not manifestly defective, especially where a demurrer has been filed by the husband that raises a question of law that cannot be readily determined. In such case the wife needs the means to employ counsel to protect her rights and also 1 Vreeland v. Vreeland, 18 N. J. (6 Lea), 499; Desborough v. Desbor- Eq. 43. ough, 29 Hun. 593 ; Friend v. Friend, 2 Smith V. Smith, 61 la. 138. 65 Wis. 412; Weishaupt v. Weis- 3 Finkelstein v. Finkelstein, 14 haupt, 37'Wis. 631 ; Bucki v. Bucki, Mont. 1, 34 P. 1090. 24 N. Y. Supp. 374; Lishey v. Lishey, * Lewis V. Lewis, 8 Johns. Ch. 3 Tenn. 2; Kennedy v. Kennedy,. 519. 73 N. Y. 369; Carpenter v. Carpen- s Sparks v. Sparks, 69 N. C. 319; ter, 19 How. Pr. 539; Ballentine ■;;.- Cravens v. Cravens, 4 Bush, 435; Ballentine, 1 Halst. Ch. 471; Ea w- Frith t;. Frith, 18 Ga. 273. son v. Rawson, 37 111. Ap.,491; eWorden v. Worden, 3 Edw. Ch. Ward v. Ward, 1 Tenn. Ch. 263; 387; Jones v. Jones, 2 Barb. Ch. Browne v. Burns, 5 Scotch Sess. 146; Rose v. Rose, 11 Paige, 166 j Cas. (2d Ser.) 1288; Erwin v. Er- Wood V. Wood, 3 Paige, 454; Rob- win, 4 Jones' Eq. 83: Methvin v. ertson v. Robertson, 1 Edw. Ch. Methvin, 15 Ga. 97; Shearin v. 360; Burrow v. Burrow, 74 Tenn. Shearin, 5 Jones' Eq. 338. § 854-] TEMPOEAET ALIMONY. 799" separate support until the demurrer is determined.' The necessity for alimony is the same whether the issue to be tried is one of law or of fact. Thus a demurrer to the juris- diction of the court will not preclude the granting of ali- mony and suit money .^ A demurrer against the wife's, pleading should be filed if the husband wishes to object tO' alimony on account of the lack of probable cause. Other- ^vise the court may, in its discretion, refuse to determine the sufficiency of the wife's bill after he has answered without demurrer.' It is not an abuse of discretion to grant tempo- rary alimony, although the case is pending on a plea of for- mer adjudication.* An order for temporary alimony may be made without waiting for a trial of an issue concerning defendant's insanity.^ Where the wife is defendant, her ap- plication for alimony and suit money should not be made until her demurrer or answer is on file, as a sound judicial discretion cannot be exercised without a knowledge of the issues which she will raise in the case. The meritorious de- fense should appear in the pleadings as well as in the affi- davits submitted with her application. In New York, and probably in some other states, the wife is required to show the merits of her case by affidavits if she applies for alimony in a suit for separation. This method may be some assistance to the court in determining the good faith of the application, but not in any other respect, as the merits can only be determined at the trial. A review of the decisions and the practice in this state cannot be en- tered into with profit. But a reference to the decisions on this point may be useful.' In Illinois the probable cause is 1 Langan u Langan, 91 Cal. 654, 108; Turrell v. Turrell, 3 Johns. Ch. 37P.1092; Disbroughn Disbrough 391. (N. J. Eq.), 20 A. 960. s Chaffee v. Chaffee, 14 Mich. 463. 2 Gray v. Gray (N. Y.), 38 N. E. i Filer v. Filer, 77 Mich. 469, 43 301, affirming 28 N. Y. Supp. 856; N. W. 887. King, Ex parte, 27 Ala. 387; Miller ^Storke v. Storke, 99 Cal. 631, 34 V. Miller, 38 Fla. 453, 15 So. 332; P. 339. Ronalds «. Ronalds, 3 P. & M. 359. «Bissel v. Bissel, 1 Barb. 430; See, also, Mix v. Mix, 1 Johns. Ch. Solomon v. Solomon, 3 Eob. 669; 800 TEMPOEAET ALIMONY. [§ 851. determined from, affidavits as well as the pleadings.^ The fact that a large number of counter-affidavits are filed does not necessarily prove that the court abused its discretion in awarding alimony and suit money, as the fact to be de- termined is not whether an offense was committed, but whether the complainant has a probable ground for divorce.^ In such case the poverty of the wife may prevent her from making a sufficient showing.'' When a decree is rendered against the wife, the trial court may allow the wife additional alimony and suit money to permit her to perfect her appeal. The reason for this al- lowance is that the wife must be placed upon an equality with her husband until the case is finally determined. Like any other litigant, she has the right to have the rulings of the lower court reviewed. To deny alimony under such cir- cumstances amounts to a denial of justice if she is without means to perfect and present an appeal.^ In such case the wife must show that the review is prosecuted in good faith, and that some prejudicial error has been committed.' The S. C, 2 How. Pr. 318; Worden v. i Wheeler v. Wheeler, 18 111. Ap. Worden, 3 Edw. Ch. 387; Boubon 39; Umlauf v. Umlauf, 22 111. Ap. V. Boubon, 8 Kob. (N. Y.) 715; Hoi- 583; Hardin v. Hardin, 40 111. Ap. lerman v. Hollerman, 1 Barb. 64; 202; Wooley v. Wooley, 24 III. Snyder v. Snyder, 8 Barb. 621 ; Os- Ap. 481 ; Eawson v. Rawson, 37 111. good V. Osgood, 2 Paige, 621 ; Ap. 491 ; Jenkins v. Jenkins, 91 111. Fowler v. Fowler, 4 Abb. Pr. 511; 168; Johnson v. Johnson, 20 lU. Ap. Whitney v. Whitney, 22 How. Pr. 495; Brown v. Brown, 18 111. Ap. 175; Douglas v. Douglas, 13 Ab. Pr. 446; Burgess v. Burgess, 25 111. Ap. (N. S.) 291; Scragg v. Scragg, 18 525. N. Y. Supp. 487; Shaw v. Shaw, 5 ^Zoellner v. Zoellner, 35 111. Ap. Miso. 497; Frickel v. Frickel, 34 N. 404. Y. Supp. 483; Jones v. Jones, 3 ' Waters u Waters, 49 Mo. 385. Barb. Ch. 146; Thomas v. Thomas, ^Whether the lower or appellate 18 Barb. 149; Carpenter v. Car- court has jurisdiction, see § 863. penter, 19 How. Pr. 539; Laurie v. s Friend v. Friend, 65 Wis. 413; Laurie, 9 Paige, 334; Shore v. Shore, Larkin v. Larkin, 71 Cal. 330, 13 P. 2 Sandf. 715; Meldore v. Meldore, 227; Painter u Painter, 78 Cal. 635; 4 Sandf. 721; Wood v. Wood, 8 Krause u Krause,23 Wis.854; Van Wend. 357; Walsh v. Walsh, 34 Voorhis v. Van Voorhis, 90 Mich. N. Y. Supp. 335. 276, 51 N. W. 381; Jones v. Jones, 3 § 854:.] TEMPOEAET ALIMONY. 801 trial court must look into the record, and from this and the knowledge of the case obtained at the trial may readily de- termine whether the appeal is without merits. This is a delicate task where the court has rendered the decree which is questioned, and the allowance should be made unless it is clear that the appeal is frivolous for the purpose of delay or to obtain temporary alimony and suit money. The ap- pellate court may, in granting this kind of alimony, examine the record, although the question of a meritorious appeal is necessarily involved in the appeal itself.' The defendant may file counter-affidavits in the appellate court showing the merits of the appeal.^ And the poverty of the wife and the ability of the husband must be shown if such fact do not appear in the record. Temporary alimony and suit money may be granted where the husband appeals from an order for temporary alimony.^ The court has a wide discretion in preventing the divorce, suit being used as a means to obtain alimony and counsel, fees by a wife who has no intention of procuring a divorce, or who cannot obtain a divorce because she has been guilty of misconduct which is a cause for divorce.* The power to compel the husband to furiiish means to carry on the suit should be exercised with caution, and the alimony and suit money refused where the apparent object of the wife is to obtain money and not to prosecute or defend the suit.' "Where there is grave doubt of the good faith of the appli- cation the temporary alimony may be ordered paid into court to await the trial." Where ill faith or collateral pur- pose are suspected the amount awarded should be small until the trial. P. & M. 333; Holthoefer v. Holt- * Dicken «. Dicken, 38 Ga. 663. hoefer, 47 Mich. 643; Whitmore v. 'Glasser v. Glasser, 28 N. J. Eq. Whitmore, 49 Mich. 417. 33; Keck v. Keck, 43 Barb. 515; I Friend v. Friend, 65 Wis. 413; Kirrigan v. Kirrigan, 15 N. J. Eq. Pollockt;.Pollock(S.D.),64N.W.165. 146; Swearingen v. Swearingen, 19 2Pleyte v. Pleyte, 15 Colo. 135, 35 Ga. 265. P. 25. *See Rogers «. Rogers, 4 Swab. & » Ex parte Winter, 70 CaL 291. T. 83. 61 802 TEMPOEAET ALIMONY. [§ 855. If the husband has been declared insane for more than one j'^ear, and the wife seeks divorce for cruelty inflicted during the year, the court may refuse temporary alimony.. " The order implies a default and neglect of a moral obliga- tion 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." ^ The probability that the cruelty was inflicted while the defendant was insane is also another reason why alimony should be refused in some cases ; as the wife is then unable to show a probable cause for divorce. The guardian of an insane person should be made a party to the suit ; and where the guardian is not joined as a party, an order compelling him to pay alimony and counsel fees is void for want of jurisdiction.^ § 855. Same — Poverty of the wife. — The wife must make it appear that she has not sufficient means to maintain herself and pay the expenses of her suit, as there is no pre- sumption that a married woman is without means. At the common law the wife's property was generally under the control -of the husband, but not always, since she may have property by virtue of a marriage settlement or other means. The ecclesiastical courts seem to have allowed temporary alimony almost as a matter of courfee, without much inquiry as to the wife's circumstances. But as this relief is only granted on the ground of necessity, it is incumbent upon the wife to show that the necessity exists. Especially is this true at the present time, when married women may acquire and possess real and personal property in their own right.' It is error to grant alimony without such proof, as there is ' McEwen v. McEwen, 10 N. J. lowed her and also her attorney's Eq. 386. fees, and a sum to the guardian -In Tlfifany v. Tiffany, 80 la. 123, ad litem. It was held that an ap- 50 N. W. 554, the guardian ad litem peal would lie from this order, al- for defendant answered setting up though the amounts had been paid, insanity as a defense to tlie alleged as the order was void, being made cruelty. The guardian of the in- against one not a party to the suit, sane husband, on the order of the ^Eoss v. Ross, 47 Mi oh. 185; court, paid the wife the sum al- Marker v. Marker, 11 N. J. Eq. 258. § 855.] TEMPOEAKT ALIMONY. 803 no presumption that she has no property.' To grant tem- porary alimony without proof of the wife's needs is an abuse of discretion. " The fact that the wife is destitute of means to carry on her suit and to support herself during its pend- ency is as essential as any other fact to authorize the court to award temporary alimony. This is not a mere matter of discretion, but a settled principle of equity." '^ But the appellate court of Illinois refused to reverse an order for alimony where there was no proof of the poverty of the wife. " There is no presumption," it was said, " that a mar- ried woman, sixteen years a wife, has any property. As the world goes, she generally has none." ' This court seems to have overlooked the rule of evidence that the burden of proof is upon the moving party to establish all the essential facts which entitle such party to the relief demanded.'* Temporary alimony should be refused if it appear that the wife has sufficient income to support herself during the trial, to employ counsel and to advance the necessary costs and expenses.* It is immaterial how she derives this main- tenance, if she is able to prosecute the suit, or to make a defense. The courts sometimes refuse to assist her where friends and relatives are doing so.^ If the parties have been living apart for years, and the wife has supported her- self, no alimony should be allotted.' It is clearly unproper, and perhaps an abuse of discretion, to compel the husband to support and assist the wife during the suit, if she is liv- ild.; Maxwell v. Maxwell, 38 Kenemer, 26 Ind. 330; Hardijig v. Hun, 566. Harding, 40 IlL Ap. 202; Morrell 2 Collins V. Collins, 80 N. Y. 1. v. Morrell, 2 Barb. S. C. Rep. 480. 3 Ayers v. Ayers, 41 IlL Ap. 226. * Bradstreet v. Bradstreet, 6 *Laciar v. Laciar, 6 C. C. (Pa^) Mackey, 502; Zeigenfuss u Zeigen- 40-3; Eroh v. Eroh, 4 Kiilp, 521 ; Brad- fuss, 21 Mich. 414; Eaton v. Eaton, ley V. Bradley, 3 Chan. Chamb. 2P. &M. 51; Burrows t>. Burrows, (Ont.) 329. 1 P. & M. 554 5 Turner v. Turner, 80 Cal. 141, 22 7 Thompson v. Thompson, 1 P. Dawson v. Dawson, 37 Mo. Ap. 208. 207. 2 Loveden v. Loveden; 1 Phillim. <> Wells v. Wells, 8 Swab. & T. 208; Rees w. Eees, 3 Phillim. 387. 542. But see contra, Stanford ». 3 In New York it can only be al- Stanford, 1 Edw. Ch. 316. lowed from the time that the no- ' Dunn v. Dunn, 13 P. D. 91. tice of application was served. 8 Langan v. Langan, 91 Cal. 654, Thrall v. ThraU, 31 N. Y. Supp. 591, 27 P. 1092. 83 Hun, 189. 9 Wright v. Wright, fi Tex. 29; *Moncrief i'. Monorief, 15 Abb. O'Haley v. Q'Haley, 31 Tex, 502. Pr. 187; Germond u Germond, 1 Paige, 83. § 861.J TEMPOEAEY ALIMONY. 817 mony conflicts with the terms of the decree for permanent -alimony, the latter decree will prevail as a final adjustment of the matter.' Upon the determination of the case upon appeal or by entry of a final judgment of any kind, the order for temporary alimony terminates. If no alimony has been ]5aid on the order, and the husband appealed from the order, a dismissal of the wife's suit because no marriage existed will operate to vacate the order, and no arrears of alimony can be recovered.^ § 861. How enforced. — An order for temporary alimony may be enforced by execution, sequestration, or by proceed- ings in contempt.' But during the suit the court has the power to enforce its orders by declaring the husband in contempt and refusing to proceed with the cause until its order is complied with.* In some instances the courts have dismissed his petition for a failure to comply with its orders.* It is error to refuse a matter of right, such as a change of venue, until the temporary alimony is paid.' It is doubtful if the court should refuse to enter a decree of divorce until the temporary alimony is paid. But in some instances this practice has been approved.' In many instances the hus- band's answer has been stricken out for his disobedience of the orders of the court.* But this is now considered against 1 Driver v. Driver (Ga.), 31 S. E. 154. s. C, 8 Ab. N. Gas. 436, 30 Hun, 400, 2 Sharon v. Sharon, 84 CaL 434. 59 How. Pr. 476 ; McCrea v. McCrea, 3 See Permanent alimony, § 939. 58 How. Pr. 330; Quigley v. Quig- ;v:is. 359. v. Hamilton, 3 C. P. D. 393. 1 Clyde V. Peavy, 74 la. 47. See, 826 SUIT MONET AND attoeney's rEE3. [§ 876. suit, for the proceeding is necessary for the wife's protection. " Where there is reasonable apprehension of violence," said Orompton, J., " a divorce may be the most effectual protec- tion, and it may be a necessary within the rule which au- thorizes a wife, who has left her husband from apprehension of cruelty, to pledge his credit for what is necessary to her." ^ The services and expenses of an attornejy have been held necessaries in suits other than divorce : such as reasonable legal expenses incurred by defending a wife in a prosecution instituted by the husband ; ^ or in prosecuting the husband where the wife files a complaint against him for a breach of the peace.^ It was the opinion of Lord EUenborough that in such a case " 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 there- fore charge her husband with the expense of the proceed- ing, as much as for the necessary food and raiment."* And upon the same principle he is liable for services ren- dered the wife in a suit against him to enforce an agreement to make a marriage settlement,^ or to recover separate main- tenance.* 1 Brown v. Ackroyd, 5 Ellis & Williams v. Fowler, McClel. & X Bl. 819; followed by Eice v. Shep- 369; Turner v. Eookes, 10 A. & E. herd, 12 C. B. (N. S.) 333, and Wil- 47. ' son V. Ford, L. E. 3 Ex. 63. It will < Shepherd v. Mackoul, 3 Camp, be noticed in these cases that the 336. In some instances the husband ■counsel might have obtained his is not liable for the services of pri- f ees by application to the divorce vate counsel who assisted the pros- court, so that the husband is liable ecuting attorney, as such services in the action at law as well as in may be unnecessary. The state, -the divorce suit. Ottaway v. Ham- and not the husband, is liable in ilton, 3 C. P. D. 393. such cases. See McQuhae v. Eey, 2 Wilson V. Ford, L. E. 3 Ex. 63 Warner v. Heiden, 38 Wis. 517 Barker v. Hibbard, 54 N. H. 539 Eobertson v. Artz, 38 lU. Ap. 593 3 Misc. E. (N. Y.) 476, 23 N. Y. Supp. 175, a Misc. 550; Grindell v. God- mand, 3 Har. & W. 339. 5 Wilson V. Wilson, 1 Des. 319. Turner v. Eookes, 10 Adolphus & SBueter v. Bueter, 1 S. Dak. 94, Ellis, 47. 45 N. W. 308. 3 Morris v. Palmer, 39 N. H. 133; '§ 8T6.] SUIT MONEY AND ATTOENEY's FEES. 827 The general rule for determining what are necessaries for the wife has been stated in a recent case in Massachusetts, it which it is held that " whatever actually and reasonably tends to relieve distress, or materially and in some essential particular to promote comfort, either of body or mind, may be deemed a necessary for which a wife, under proper cir- cumstances, may pledge her husband's credit. . . . Ap- proximation may sometimes be made by holding that certain articles or services are to be deemed outside of any reason- able construction of the term. But legal services do not fall -within such universal or general exclusion. There may be occasions when such services are absolutely essential for the relief of a wife's physical or mental distress. Suing out a writ of habeas corpus to deliver herself from unjust or ille- gal imprisonment is an illustration of the rule." ^ It may be considered well-established law that legal services rendered the wife are within the definition of neces- saries, and it is difficult to assign any good reason why such services, when rendered in a suit for divorce, are not neces- saries. The relief demanded is a legal separation or a disso- lution of the marriage, and the division of the property or suitable alimony. The law recognizes the liability of the husband to furnish her the necessary means to enforce or defend her marital rights in the divorce suit, and compels hJTn by summary methods to furnish such means. The ne- cessity of such legal services is so manifest in the proceeding for divorce as to admit of no argument. It is a presump- tion of law that such services are necessary, and attorney's fees are allowed upon proof that the wife has a probable cause for divorce, and that she has not sufficient means to prosecute the suit, while her husband has property. If, under proper circumstances, legal services are necessaries within the definition of that term at common law, it must follow that such services are necessaries in actions to obtain a separate maintenance, or alimony without divorce, or even a dissolution of the marriage. 1 Conant v. Burnham, 133 Mass. 505, 828 SUIT MONEY AND ATTOENEy's FEES. [§ 876, In some of our states the courts have followed the English doctrine that the usual method of obtaining attorney fees in the action for divorce is not exclusive, but that when the di- vorce suit is no longer pending, or the services were rendered in preparing a suit which was not commenced, the attorney for the wife may recover the value of his legal services in an action at law.^ And this is deemed to be the better .doctrine, as it is in accord with the principles of the common law. But it is held by the greater number of American authori- ties that legal service^ rendered the wife in prosecuting or defending a suit for divorce are not such necessaries as the law requires the husband to furnish, and that he is not liable, for such services in an action at law.^ The ea,rly cases seem to have considered a divorce suit as unnecessary for the pro- tection of the wife, and held such proceedings as a kind of luxury, tending to promote discord and the destruction of the marriage relation. The most cogent reason that was as- signed was that " the duty of providing necessaries for the wife is strictly marital, and is imposed hy the common law in reference only to a state of coverture and not of divorce. By that law the contract of marriage was and is indissoluble, and therefore by it the husband could never have been placed under obligation to provide for its dissolution. Such an event was a legal impossibility." » But this reason is not 1 Porter v. Briggs, 38 la. 166; Newell, 40 Conn. 596; Dow i;. Eys- Preston v. Johnson, 65 la. 385; ter, 79 111. 354; Stein v. Blake, 56 Clyde u Pea vy, 74 la. 47; Eaton i;. 111. 535; Phillips v. Simmons, 11 Peavy, 75 la. 740; Sherwin v. Ab. Pr. (N. Y.) 388; Williams v. Maben, 78 la. 467; Gossett v. Pat- Monroe, 18 B. Mon. 514; Dorsey r. ten, 33 Kan. 340; McCurley v. Goodenow, Wright, ISO; Johnson Stookbridge, 63 Md. 433; Spray- u Williams, 3 G. Greene (la.), 97; berry v. Merk, 30 Ga. 81; Glenn v. McCulloch v. Eobinson, 3 Ind. 680; Hill, 50 Ga. 94; LangbeinuSohnei- Coffin v. Dunham, 63 Mass. 404; der, 16 N. Y. Supp. 943, 27 Ab. N. Thompson v. Thompson, 40 Tenn. Cas. 338. (3 Head), 527; Pearson v. Darring- 2 Wing u Hurlbnrt, 15 Vt. 607; ton, 32 Ala. 329. Kincheloe v. Merriman, 54 Ark. ^Shelton v. Pendleton, 18 Conn. 5.57; Clarke v. Burke, 65 Wis. 859; 417, approved in Clarke v. Burke, Morrison v. Holt, 42 N. H. 478; Bay 65 Wis. 359. V. Adden, 50 N. H. 82; Cooke v. § 8t6.] SUIT MONEY AND ATTOKNEy's FEES. 829 altogether satisfactory, since the principles of the common law are applicable to new and anomalous conditions created by statute. If legal services rendered in a suit for separa- tion are necessaries, it would seem to follow that such serv- ices in a suit for a dissolution would be necessaries within the reason and policy of the common law, as the liability was created before the marriage was dissolved.^ The liability of the wife for the services of an attorney is clear where she is permitted to contract with reference to her separate property by that form of statute known as the Married "Women's Act. And it is held in a recent case that a married woman may bind herself for the services of an attorney rendered in preparing and commencing a suit for divorce which was afterwards discontinued at her request before any allowance was made for her attorney. It was con- tended in her behalf that her husband was liable, and that such services were not rendered Avith reference to her sepa- rate estate ; but this was denied on the ground that the stat- ute contemplated her right to sue and her liability for the costs unless the court made the husband liable therefor in the divorce suit. " The statute," it was said, " clearly indi- cates that such proceedings are to be maintained at the cost 'of the wife, unless the court shall relieve her of such cost by an order for expense money to be paid by her husband. It has also been held in this state that a married woman, is competent to assert her rights either as plaintiff or defend- ant, and, where a suit is brought against her as defendant, is bound to do so.^ It would seem to follow logically that, having the power to bring suit, and being in such suit re- sponsible for costs, she must be held competent to contract for the services of an attorney to represent her rights. We 1 A married woman cannot bind And her promise cannot be en- herself at common law to pay for forced after the marriage is dis- the services of an attorney in a di- solved by divorce. Mnsick v. Dob- vorce suit whether she is plaintifiE son, 76 Mo. 624; Putnam v. Tenny- or defendant. Cook v. Walton, 38 son, 50 Ind. 456. Ind. 328 ; McCabe v. Britton, 79 Ind. 2 Wilson v. Coolidge, 43 Mich. 113. 234; Viser v. Bertrand, 14 Ark. 367. 830 SUIT MONET AND ATTOENEt's FEES. [§ 87T- think the right to contract for such services is necessarily- incident to and included in her right to bring the suit." ' § 877. How obtained after dismissal.— Frequently family quarrels and the divorce suits which grow out of them are settled by the parties, and the action dismissed without no- tice to the wife's attorney, and without paying the attorney for his "services. It then becomes a difficult question how to proceed to recover the fees which are equitably due. Where, as in England, the action cannot be dismissed with- out the action of the court, the order of dismissal will not be rendered until the attorney is paid.^ "Where attorneys have notice of the dismissal and oppose it because their fees are not paid, the court should allow them a reasonable fee based upon the services already rendered, but in some in- stances the courts have declined to do this.' It is clear that after an order for attorney's fees have been entered, the vol- untary dismissal of the suit by the wife will not invalidate such order.* Eut the fact that the action is dismissed may _ be urged to diminish the amount ordered, since aU the serv- ices contemplated, such as preparing the evidence and con- ducting a trial, have not been rendered.' The attorney who appears for the wife and does not look to her for compensation for his services has a right to pro- ceed in the case with the assurance that a suitable fee will 1 Wolcott V. Patterson, 100 Mich, court, or in the hands of a re- 337, 58 N. W. 1006. The statute re- ceiver." f erred to is as follows: 2 How. 2 Dixon u Dixon, 3 P. & M. 353; Ann. St., § 6235: "In every suit Twistleton v. Twistleton, 3 P. & M. brought, either for a divorce or for 339. See same practice, ©reen v. a separation, the court may in its Green, 40 How. Pr. 465; Burgess v. discretion require the husband to Burgess, 1 Duv. 388. pay any sums necessary to enable 3 Eeynolds v. Eeynolds, 67 Cal. the wife to carry on or defend the 176; Gregory v. Gregory, 33 N. J. suit during its pendency, and it Eq. 434. may decree costs against either < People v. Dist. Court (Cal.), 40 party and award execution for the P. 460: Traylor v. Richardson, 3 same, or it may direct such costs Ind. App. 453,38 N.E. 305; Weaver- to be paid out of any property se- v. Weaver, 38 Ga. 173. questered or in the p^wer of the s Waters v. Waters, 49 Mo. 885. § 87Y.] SUIT MONEY AND ATTOENEy's FEES. 831 be awarded to him by the court, unless his' case is without merit or probable cause. He is acting to a great extent a» an officer of the court, and has an equitable right to an order in the proceeding compelling the husband to pay for his services. ]Sreither party should have the assistance of the court in avoiding the payment of what is justly due the- wife's attorney for his services. If the parties have settled their difficulties and dismissed the suit without paying the Avife's attorney, he has the choice of two remedies : either to sue the husband in an action at law, or to have the di- vorce suit reinstated, and apply to the court for an order for the fees. The latter method is to be preferred; as it is an open question whether the husband is liable in an action at law. Even where the suit has been dismissed by stipulation of the parties or by the court, the attorneys for the wife may have such dismissal set aside, and an order entered for the payment of a certain sum to the wife as fees.^ It is said that the p6wer to enforce the attorney's rights after a settlement by the parties is founded upon the familiar prin- ciple of equity, that, where a court of equity has acquired jurisdiction over the parties and the subject-matter of the- action, it wiU retain jurisdiction until complete justice is done to all parties.^ In some instances it has been held that the- attorneys are not entitled to an order for fees if the action was tried and the wife did not succeed; as- this is an adjudi- cation that the action should not have been brought.^ With all respect to these authorities, it is submitted that if the attorney acted in good faith, and there was a probable cause 1 Courtney v. Courtney, 4 Ind. 2 Chase v. Chase, 65 How. Pr. 306, App. 221 ; Aspinwall v. Sabin, 22 reversed for lack of proper notice. Neb. 73; Davis v. Davis (Ind.), 40 29 Hun, 527. N. E. 802; Thomdike v. Thorn dike, 'Wagner v. Wagner, 84 Minn. 1 Wash. Ter. 175; Londen v. Lon- 441; Newman v. Newman, 69 111. den, 65 How. Pr. 411: Moore v. 167; McCulloch v. Murphy, 45 111. Moore, 10 Ontario Pr. Rep. 284; 256; Reynolds v. Reynolds, 67 Cal. Smith V. Smith, 35 Hun, 878, af- 176; Thompson v. Thompson, 4» firmed, 99 N. Y. 689; Lamy v. Ca- Tenn. (8 Head), 536. tron iN. Mex.), 23 P. 778 S32 SUIT MOITET AND ATTOENEy's FEES. [§ 878. for divorce, he is entitled to compensation for his services, although no divorce was granted. It is sometimes held that the application for attorney's fees is too late after the settle- ment of the parties or a dismissal of the action ; that such allowance is for the future; and as nothing further is to be done, there is no necessity for further expense.' But this is not a suificient reason for permitting the husband to escape the payment of what is justly due for the services rendered, with the expectation that a suitable allowance would be made by the court. As to the moral aspect of the case, it may be said that suits for divorce should be discouraged by denying attorney fees in every instance where the wife does not procure a decree. But a sound policy would seem to require the pay- ment of what has in fact been earned in order that the hus- band should meet just obligations. Such a policy will have a wholesome effect in repressing future quarrels and diffi- culties, and teach the parties that they cannot appeal to the courts with petty cases without the expenditure of consid- erable sums.- § 878. Number of counsel.— The court should limit the number of counsel so that the amount allowed for their fees shall not be improper or oppressive. ISTo particular number has been prescribed. The number of counsel nee-, essary must be determined from the nature of the case, the usages of the court, and the number employed by the hus- 1 Beadlestbn u Beadleston, 9 Civil thereof in vacation may make Pro. 440; Wilde v. Wilde, 3 Nev. . . . such orders relative to the ^06. expenses of such suit as wiU in- 2 A wife's suit for divorce was sure the wife an eflScient prepara- dismissed at her costs. In due tion of her case and a fair and im- time she applied to have the de- partial trial thereof." It was held -cree set aside and for an allow- that the court had the power to ance for costs and attorney fees in modify the decree and grant one addition to the allowance made additional allowance to the wife before decree. The statute pro- for costs and attorney fees. Davis vided that "Pending a suit for di- v. Davis (Ind.), 40 N. E. 803. vorce the court or the judge § 879.] SUIT MONET AND ATTOENEy's FEES. 833 band.' It has been held that four or five are too many,^ or that one, or the members of one firm, will be enough under ordinary circumstances.' In a Wisconsin case the wife em- ployed two able counsel ; and when the husband employed the same number she employed a third counsel. The su- preme court Avas of the opinion that any one of the three eminent counsel employed by the wife could have conducted the trial alone, and reduced the amount to about one fee, although the husband had ample means.^ It would seem, however, that the wife should have as many counsel as the husband had found it necessary to employ for himself.* In the Sharon case the trial court permitted the employment of six lawyers to present the merits of the plaintiff's cause. The supreme court considered this " an undeserved reflec- tion upon the administration of justice " in the trial court, and that such number was unreasonable and unnecessary.^ The fact that one attorney is employed by the wife upon a contingent fee will be good ground for denying an allow- ance unless others are employed with him, when an allow- ance may be made.' § 879. Amount of attorney's fees. — The court may exer- cise its discretion in fixing the amount allowed as attorney's fees, keeping in view the nature of the case and the means of the husband as weU as the nature and extent of the serv- ices to be required. The allowance, when made in advance of the trial, should be influenced by many considerations which affect the allowance for temporary alimony, of which it is a part. The amount should be conservative, as the cause may never reach trial, and if more labor be ex- pended than was anticipated an additional allowance may be made after the trial. Generally the court determines iSeeUhlman v. Uhlman, 51 N. 520; Burgess v. Burgess, 1 Duv. Y. Supr. 361; Money v. Money, 1 (Ky.) 387. Spinks, 117. *Williamsu Williams, 29 Wis. 517. iiRawson v. Rawson, 37 IlL Ap. 5 See Shy v. Shy, 54 Tenn. 125; 491; Dugan v. Dugan, 1 Duv. (Ky.) Baldwin v. Baldwin, 6 Gray, 341. 289. 6 Sharon v. Sharon, 75 Cal. 1. 3 Whitney v. Whitney, 7 Bush, 'White v. White, 86 Cal. 312, 216. 53 834 SUIT MONET AND ATTOKNEy's FEES. [§,879, what will be a reasonable fee in the case without hearing^ any evidence on that point.^ Ko amount can be fixed as reasonable in all cases. The court must determine what is necessary for the protection of the rights of the wife. But ' little aid can be obtained from the reports, as all the facts are not stated ; and yet it is believed that the matter in note below may be of some assistance.^ "When an appeal is taken, the whole case is open for re- ■saew upon the evidence, and while the courts hesitate to disturb discretionary orders, it seems that the order for at- 1 De Lamosas v. De Lamosas, 63 Boyce, 27 N. J. Eq. 433; Smith v N. Y. 618; Peyre v. Peyre, 79 Cal. 336. But see contra, Whitney v. Whitney, 7 Bush, 520; Jeter v. Jeter, 36 Ala. 391. Smith, 40 N. J. Eq. 602; Ewing«. Ewing, 4 A. 651 ; Cowsnnv. Cowan, 10 Colo. 540; Friend v. Friend, 53 Mich. 543. $500 allowed in Cane v. 2 The sum of |100 is said to be a Cane, 39 N. J. Eq. 148, for usual common fee for the trial of a suit for divorce. Shy v. Shy, 54 Tenn. (7 Heisk.) 125; Lishey v. Lishey, 2 Tenn. Ch. 1; Vroom v. Marsh, 29 N. J. Eq. 15; Poutney v. Poutney, 10 N. J. Supp. 192; Umlauf v. Um- lauf, 138IU.378; Meathe u Meathe, labor in defending the wife. See, also, Pauly v. Pauly, 69 Wis. 419;. Varney v. Varney, 53 Wis. 130. In Walsh v. Walsh, 61 Mich. 554, $1,500 was allowed on appeal. In Meyar v. Meyar, 3 Met. (Ky.) 298, |25 was allowed for services 83 Mich. 150 ; Harran v. Harran, 85 in vacating a decree and conduct- Wis. 399, 55 N. W. 400. In the following cases $150 was allowed: McConahey v. McCona- ing new trial. In Donnelly v. Donnelly, 63 How. Pr. 481, $95 was allowed for serv- hey, 31 Neb. 463 ; Day v. Day, 84 ices on appeal. la. 231, 50 N. W. 979; Bueter v. Bueter, 1 S. Dak. 94, 45 N. W. 208; Young V. Young (Ky.), 15 S. W. 780; Gordon v. Gordon, 141 111. 160, 30 N. E. 446. Sometimes $200 is not considered excessive. Doolittle v. Doolittle, 78 la. 691; Burgess v. Burgess, 1 Duv. 287. The following amounts have been allowed: $250, Douglas v. Douglas, 81 la. 358; Winton v. Winton, 13 Ab. K Cas. 159. $390, Ayers v. Ayers, 41 111. Ap. 336. I for trial and appeal, Boyce v. In Melvin v. Melvin, 130 Pa. 6, $100 was allowed on appeal. Where the husband is a laborer, $25 is a reasonable fee. Davis v. Davis, 36 111. Ap. 643. Under the circumstances of the case, held that $60 was not excess- ive. Potts V. Potts, 68 Mich. 492. Where the suit involves the va- lidity of three marriages and the laws of four different states, a fee of $750 is not unreasonable where husband has an annual income of $20,000. Sinn v. Sinn, 3 Misc. 598. § 880.] SUIT MoiirET AND attoenet's fees. 835 tornej^'s fees is often changed with great freedom, and the amount reduced to what the appellate court deems a reason- able fee. Eeasons for holding a fee excessive are seldom given; but the extent of the services rendered is often stated.' § 880. The order for attorney's fees.— While the wife's- attorney is the real party in interest in obtaining the allow- ance, yet he is not a party to the suit ; and the order must be that the amount be paid to the clerk of the court, or to the wife for the u^e of the attorney.^ An order to pay a certain sum to an attorney is irregular.' The court cannot enter a direct judgment in favor of a person not a party to the suit.* The order should be entered separately,' and not included in the final decree.* An order to pay attorney fees to the attorney is not void but merely irregular.'' On appeal the order will be corrected without a reversal.' The order for attorney fees is enforced like an order for tempo- rary alimony. In some instances the court may deny any matter of favor until its order is complied with." The court may refuse to dismiss the action until the attorneys are paid.'" Where the husband refuses to comply with the order of the court, resort may be had to contempt proceedings, as if the order were for alimony alone." Where the statute 1 In Williams t'. "Williams, 29 Wis. Supp. 645; Mercer v. Mercer, 35 517, a fee of $2,600 for three counsel N. Y. Supp. 867; Straus v. Straus, was held excessive and reduced to 23 N. Y. Supp. 567. $600. Blake v. Blake, 70 IlL 618, ' People v. District Court (Cal.), $6,000 reduced to S2,000. Miller r. 40 P. 460. Miller, 43 la. 325, .$700 reduced to s storke v. Storke, 99 Cal. 631, 34 $300. Raymond v. Raymond, 13 111. P. 339. Ap. 189, $250 reduced to $125. » Farnham v. Famham, 9 How. 2 Van Duzer v. Van Duzer, 05 la. Pr. 231. 625. '" Courtney v. Courtney, 4 Ind. Ap. 3 Sharon v. Sharon, 75 Cal. 1. 221; Cooper v. Cooper, 3 Swab. & * Robinson r. Robinson, 79 Cal. T. 393; Dixon v. Dixon, 3 P. & M. 511 ; Parker v. Parker (Miss.), 14 So. 253. 459, 11 See Ballard v. Caperton, 2 Met. 5 See. form of order in Traylor v. 413; Pritchard w Pritohard, 4 Abb. Richardson, 3 Ind. Ap. 453. N. Cas. 398; Branth v. Branth, 20 « Williams v. Williams, 6 N. Y, Civil Pro. 33. 836 SUIT MONEY AND ATTOKNEt's FEES. [§§ 881, 882. authorizes an execution to issue, other remedies al-e not ex- cluded. Such statute does not deprive a court of its inher- ent power to punish for contempt.^ § 881. Contingent fee. — An agreement with the wife that her attorneys shall receive a portion of the amount of ali- mony obtained is champertous and void as against public policy. Agreements for contingent fees are objectionable in ordinary actions, but in actions for divorce this kind of agreement is particularly vicious. The wife's attorney be- comes an interested party in the proceeding, and ceases to act in the capacity of a legal adviser and an officer of the court. His concern is to ignore any rights of his client Avhich interfere with the decree for alimony, and, if he fol- lows his own interest, he encourages divorce and discourages all attempts at reconciliation. It is also a fraud upon the court to obtain the allowance for the wife's support and di- vert the fund for other purposes, especially Avhere the court makes a reasonable allowance for attorney fees. The courts discourage such agreements ; and if, in the progress of the trial, the court discovers that an attorney has rendered his services upon a contingent fee, no allowance for attorney's fees will be made.' If the wife has other attorneys who are not parties to the champertous agreement, an allowance will be made for their services.' Although the wife has assigned a portion of the alimony to her attorneys as their fees, she may recover any portion of her alimony held by them under such agreement.* § 882. Attorney's lien. — The allowance made by the court for the maintenance of the wife is ordinarily exempt from all liens and claims of creditors, on the ground that public policy requires that the divoi-ced wife shall not be left destitute to become dependent upon the state for sup- 1 People V. Dist. Court (Cal.), 40 170. See in this case form of con- P. 460. tract held champertous, and also 2 Sharon v. Sharon, 75 Cal. 1. remarks of the court concerning 3 White V. White, 86 Cal. 213. reprehensible conduct of attorneys * Jordan v. Westerman, 63 Mich, in preventing reconciliation. § 882.] SUIT MONET AND ATTOENEy's FEES. 837 port. A court of equity will not allow this fund to be di- verted to any other purpose except her support. It follows, therefore, that her assignment of a portion of the alimony awarded her is void and will not be enforced.' And an at- torney is not entitled to a lien upon payments of alimony in his hands, as this would defeat the purpose of the allow- ance. There are, however, some circumstances in which a lien for services and costs advanced will be permitted by the court granting the alimony. If the allowance provides for a certain sum for attorney's fees, the attorney would have a lien for that amount, but not for a greater sum. And it seems that her attorneys may have a lien where alimony is allowed in gross, but the court has the power to determine what is a reasonable fee in such case.^ An attorney's lien for fees and costs advanced was sustained in an English case where arrears of temporary alimony were paid upon an order of the court entered when the husband dismissed the action. The wife claimed the fund as exempt for her sep- arate maintenance ; but the court was of the opinion that as the wife had authorized the payment of the alimony to her attorney, he liad a lien upon the same as in other cases between attorney and client.' Under the circumstances the court had the power to apply the alimony to the payment of attorney's fees; as the marriage was not dissolved, and the husband was still liable for her maintenance. 1 Jordan n Westerman, 63 Mich. ' Brenner, Ex parte, 1 P. & M. 170. 354. 2 State V. Saclis, 3 Wash. St. 371. PERMANENT ALIJ^IONY § 900. In generaL § 909. 901. Permanent alimony of the common law. 910. 903. Permanent alimony on de- cree of separation. 911. 903. Distinction between com- mon-law and statutory 913. alimony. 913. 904. Liability of wife to pay the husband alimony. 914. 905. When alimony is refused. 905a Annulment of marriage. 915. 90S. Alimony where a divorce is 4enied. 916. 907. "When a guilty wife may receive alimony. 917. 908. The amount of the perma,- nent allowance. 918. Compensation for the wife's property rights. Compensation for injuries. Compensation for loss of support. The husband's income and property. The wife's income and prop- . erty. The support of the chil- dren. Agreements relating to ali- mony. Other circumstanceswhich determine the amount. Allowance where the hus- band has no property. Pleading and practice. § 900. In general. — It is the duty of the husband to sup- port the wife according to his ability and in a manner suit- able to his fortune and condition. If a judicial separation or an absolute divorce is rendered for the fault of the hus- band, he is not relieved from this liability for support. After divorce this liability is continued in the form of a decree for a certain sum of money payable to the wife. For the wife, if compelled by his misconduct to seek the aid of the court, does not forfeit her property rights. This allowance to the wife upon a decree of divorce from bed and board was at common law called permanent alimony. We have no special term in this country for the allowance made to the wife after a decree of divorce dissolving the bonds of matrimony. Such allowance is generally called " permanent alimony ; " but this term does not distinguish between the two kinds of § 900.] PERMANENT ALIMONY. • 839 decrees of divorce, partial and absolute. In England the allowance made for the wife upon an absolute divorce is called a " permanent maintenance," and the term " perma- nent alimony " retains its common-law meaning. The decree providing for the support of the wife, after an absolute di- vorce, is called a " permanent allowance " in California, and perhaps this statutory term is used in other states.' Our courts have so often found it necessary to distinguish between the permanent alimony of the common law and the permanent allowance of the statutes, that it would seem best to make the distinction in every instance to avoid mis- apprehension. In this work the Avord alimony is used to denote any allowance by the court for the support of the wife after a decree of divorce, either a mensa or a vinculo, and such is the meaning of the Avord as commonly used.^ The power to grant the Avife a permanent allowance after an absolute divorce is not derived from the common law and is not derived from the jurisdiction to grant divorce. The permanent alimony of the common laAV Avas granted to the wife upon a decree of separation from bed and board ; so that it is held that our statutes must confer upon our courts the power to grant the wife a permanent allowance after the dissolution of the bonds of matrimony.' The statute 1 Jji re Spencer, 83 Cal. 460^23 P. clothing and a habitation, or the 595. See sec. 139, Cal. Civil Code, necessary support of the wife after 2 "Alimony is the allowance the marriage bond has been sev- which is made to a woman, on a ered: and since what is thus neces- decree of divorce, for her support sary has more or less of relation to out of the estate ot her husband, the condition, habit of life, and . . . It is the equivalent of the social position of the individual, it obligation of the husband to fur- is graded in the judgment of a nish his wife a suitable support — court of equity somewhat by re- corresponding in degree with his gard for these circumstances, but pecuniary ability and social stand- never loses its distinctive char- ing." Stillman v. Stillman, 99 111. acter." Eomaine v. Chauncey, 129 196; Adams v. Storey, 135 111. 448, N. Y. 566, affirming 60 Hun, 477; ■26 N. E. 582. In New York ali- s. c, 15 N. Y. Sup. 198. mony is said to be '"like the ali- ^Erkenbrach v. Erkenbraoh, 96 mentuvi of the civil law, from N. Y. 456; Romaine v. Chauncey, which the word was evidently de- 129 N. Y. 566. rived, ... a provision for food, 840 PEEMANENT ALIMONY. [§ 901.. must confer the power upon the court to provide some- allowance'for the wife, who is, by an absolute divorce, placed in a situation unknown at the common law.' §901. Permanent alimony of the common law. — This form of alimony requires separate treatment, owing to the distinct purpose for which it was allowed and the limited powers of the courts which granted it. At present jurisdic- tion of divorce is generally conferred on courts of equity having aU the powers incident to equity jurisdiction ; and such courts may exercise such powers, in a settlement after a dissolution of the marriage, to restore to the wife her separate estate, divide personal and real property, decree a gross sum of money, and secure the same by making the decree a lien upon the husband's real estate. But the eccle- siastical courts did not possess any of these powers for ren- dering exact justice between husband and wife. The most, rigorous decree which it ventured to give in the most ex- treme case was one-half the joint income of the parties, even where it was shown that the entire estate came through the wife. The inadequacy of such relief is illustrated by a de- cision of the arches court of Canterbury in 1812. "In this instance," said Sir John Nicholl, " the husband raised himself to independence and affluence by marrying this young woman ; he has not only injured, but insulted, her by debauching a maid-servant who lived at the adjoining house; for this servant he has taken a house, and for her society he has abandoned the society of his wife; he has children by her, and receives his friends in" the house, and introduces her to them as his wife. It is a most offensive case. If he violates the marriage contract, it might be equi- table, perhaps, that he should lose the whole benefit of it, and be obliged to give up the whole of the wife's property. 1 This principle is overlooked in manent alimony, see Petitions for Chaires v. Chaires, 10 Fla. 308, divorce, § 751. where the court appears to have Whether applied for on separate made no distinction between tern- petition, see § 747. porary and permanent alimony. For form of decree or order for For form of application for per- permanent alimony, see § 766. § 901.J PERMANENT ALIMONY. 841 At all events it would be most unjust that the wife should be deprived of any considerable portion of the property she brought, in order to support the husband in pukic scandal, and to enable him to continue his adulterous connection and provide for the issue which are the fruits of it." ^ The limitations which surrounded the ecclesiastical courts in their care of souls, the crude and unjust laws relating to married women and their property rights, as well as the fact that only a partial divorce was granted, render the de- cisions of such courts of very little value in determining the amount of permanent allowance to the wife where the mar- riage has been dissolved. But a review of the decisions may be made here in justification of what has been said.^ 1 Cooke V. Cooke, 3 Phillim. 40. The court then affirmed a decree allowing the wife £450 per an- num — about . one-half of the hus- band's income — leaving the re- mainder to him to be enjoyed with his concubine and her children. This case is often cited as a prece- dent in determining the amount of alimony; but for obvious rea- sons it has no application in mod- ern practice. According to modern views of justice, the circumstances of this case would require that the innocent party should not suffer by a marriage the obligations of which the other has broken; and our courts would dissolve the mar- riage, restore the property to the wife, and leave the husband to make the best of the situation by marrying the concubine and car- ing for his children. It is submit- ted, also, that a dissolution of the marriage in such a case is in ac- cordance wi*h sound public policy. 2 Where the husband's income was between two and three thou- sand pounds, and the wife's prop- erty at marriage was only 6,000?., the court allowed her 2001. per an- num, payable quarterly, and the sum of 400?. for two years arrears of alimony, she having received no alimony during suit. Robinson V. Robinson, 2 Lee, 593 (1738). The sum of 160Z. per annum was allowed to the wife, that being about two-flfths of the husband's income. No reduction was made in favor of the husband because he paid 200?. to the support of a daughter. Street v. Street, 3 Ad. Ec. 1. Where the joint incomes amount- ed to 5,500?. per annum and the hus- band had six children to maintain and educate, the wife was allowed 2,000?. per annum, payable quar- terly, although the greater part of the property came from the wife. Otway V. Otway, 3 Phillim. 109. Where the property was settled upon the wife and she was induced, by the hope of better treatment, to give it up to her husband, she was allowed 1,000?. per annum, one-half the joint income, for herself and €42 PEKMANENT ALIMONY. [§'902. § 902. Permanent alimony on decree of separation. — The allowance made on a decree of separation is in many- respects the same as the permanent alimony awarded by the ecclesiastical courts on a decree a mensa et tkoro. The de- crees are almost identical, and the subsequent status of the parties is the same. The Avife does not lose her dower in- terest by either decree, and the husband retains the right of curtesy. She is still entitled to her distributive share in his personal property, should he die intestate. The parties are still husband and Avife. The circumstances of the parties, and their legal rights, being the same as upon a decree a mensa et thoro, it follows that the principles of the perma- nent alimony of the ecclesiastical law should govern the award of permanent alimony after a decree of separation. In the absence of any statutory provision to the contrary, the allowance is a suitable provision for the wife from the income of her husband, and not a portion of his estate or a gross sum.' It is not a division or restoration of property.^ The amount is modified by the wife's demeanor and the ex- tent of the husband's delictum, the respective needs and in- comes of the parties, and other considerations which may influence judicial discretion.' An allowance may be made for the support of the wife on a decree nisi.^ As such allow- clxild. Smith v. Smith, 2 Phillim. 2 Doe v. Doe, 52 Hun, 405; S. C, 235. 5 N. Y. Supp. 514. But see Holmes The sum of lOOZ. was allowed the v. Holmes, 4 Barb. 295. wife where she had a separate in- 3 gge on these points, Burr v. come of 350Z., and the husband's Burr, 10 Paige, 20; Sleeper v. income was about 1,015^., out of Sleeper, 65 Hun, 454, 20 N. Y. Supp. which he supported seven chil- 339; Williams v. Williams, 6 N. Y. dren. Eees v. Rees, 3 Phillim. 387. Supp. 645; Erkenbrach v. Erken- See, also, amount of permanent brach, 96 N. Y. 456; CuUen v. Cul- alimony granted in Blaguiere v. len, 55 J. & S. 346; Emerson u Em- Blaguiere, 3 Phillim. 258; Durant erson, 68 Hun, 37; s. C, 22 N. Y. V. Durant, 1 Hag. 538; Kempe v. Supp. 684. Kempe, 1 Hag. 532; Myttonr. Myt- ^Waterhouse v. Waterhouse, 6 ton, 3 Hag. Ec. 657. Eep. (1894), 630. 1 Burr V. Burr, 10 Paige, 20, 7 Hill, 207. § 902.] PERMANENT ALIMONT. 843 ance is not permanent, and as the marriage is not dissolved, this form of alimony resembles the common-la-\v alimony and is governed by the same principles. Such decree is subject to revision at any time during the separation, and the amount may be increased or diminished according to the changed circumstances of the ])arties.^ The object of such revision is to preserve the equality of their respective incomes.^ If after the decree of separation the wife acquires an adequate income from other sources, the decree for alimony may be vacated on the application of the husband.' In general it may be said that this kind of alimony terminates whenever the necessity for it ceases, as when the parties become rec- onciled and renew cohabitation.^ A decree of absolute di- vorce, if rendered after a decree a mensa, terminates the permanent alimony allowed on the latter decree.* The per- manent alimony on a decree of separation terminates on the death of either party.^ On the death of the wife the hus- band is under no legal obligation to her heirs, as the decree was for maintenance of the wife, and was not a vested right. On the death of the husband the wife comes into possession of her distributive share as a widow, and there is no neces- sity for continuing the alimony.' This form of alimony is for the support of the wife during the separation. It must be distinguished from the permanent allowance to the wife on a dissolution of the marriage, as such allowance is more in the nature of a final settlement of partnership accounts. iHalsted v. Halsted, 5 Duer, 659; 5 Blake v. Cooper, 7 S. & E. 500; Strauss v. Strauss, 14 K. Y. Supp. Smith v. Smith, 3 S. & R. 348. But €71; Simonds v. Simonds, 10 N. Y. see Bremner v. Bremner, 48 Ind. Supp. 606; Stahl v. Stahl, 13 N. Y. 262. Supp. 855; Kerr v. Kerr, 9 Daly, ' Dewees v. Dewees, 55 Miss. 315. 517. ' Lockridge v. Lockridge, 3 Dana 2Mildeberger v. Mildeberger, 13 (Ky.), 28; Storey v. Storey, 125 111. Daly, 195. 608, 18 X. E. 339; Clark v. Clark, 6 3 Holmes v. Holmes, 4 Barb. 295; Watts & S. 85; Stones v. Cooke, 8 "Whispell V. Whispell, 4 Barb. 317. Sim. 321; Shaftoe v. Shaftoe, 7 Ves. ^Nicol V. Nicol, 30 Ch. D. 143, 31 171; Dawson v. Dawson, 7 Ves. 173. Ch. Div. 524 S-ii PERMANENT ALIMONY. [§ 903. § 903. Distinction between common-law and statutory alimony. — Mr. Bishop claims that the rules governing per- manent alimony at common law are applicable to the stat- utory alimony ; and in the chapter on " Permanent alimony " has drawn largely from the ecclesiastical reports, blending- and confusing the alimony of the common law, and the statutory allowance made by our courts on dissolving the marriage. " We have American authority," said he, " that a judicial discretion conferred by statute to grant alimony on a decree dissolving the marriage should be exercised by the court on the same principles as the like discretion where the divorce is from bed and board." ^ The English courts,, since the divorce act, jnay grant an absolute divorce ; and where such divorce was rendered, the divorce court was of the opinion that the wife should receive the same amount which the ecclesiastical courts would have granted. "If a man, before the divorce act, treated his wife Avith cruelty and was also guilty of adultery, she could only obtain a di- vorce a mensa et thorn- and an allowance called permanent alimony was made her, which was generally calculated at the rate of one-third of her husband's income. Since the divorce act, the same conduct on the part of the husband entitles the wife to a dissolution of her marriage ; but it is hard to say that she was intended by the legislature to pur- chase that remedy by a surrender to any extent of the pro- vision to which she would otherwise have been entitled. "The needs of the wife and the wrong of the husband are the same in both cases. In both cases the husband has of his own wrong and wickedness thrust forth his wife from the position of participator in his station and means. Obliged in both cases to withdraw from his home, she is, without any fault of her own, deprived of her fair and reasonable share of such necessaries and comforts as lay at his com- mand. "Why should not the husband's purse be called upon to meet both cases alike \ " ^ This case is said by Mr. Bishop 1 Citing Harris v. Harris, 31 Grat. 2 Sidney v. Sidney, 4 Swab. & T. 13; Blake v. Blake, 68 Wis. 303. 178. § 903.] PEKMANENT ALIMONY. 845 to. have settled the doctrine in England as to alimony on dissolution.^ But it is submitted that decisions of the ecclesiastical courts are entitled to small value as precedents for the following reasons : Equity requires that where the wife obtains di- vorce she shaU not suffer pecuniarily on account of the disso- lution of the marriage for the husband's ill conduct. To place her in statu quo requires the court to consider a con- dition of facts and property rights that could not exist at common law, and cannot be adjusted by common-law prin- ciples. The wife has now both separate property and sepa- rate income. Her right of dower upon divorce is declared by statute in some states, and in others the court must allow her a sum to compensate the loss of dower. The power of the court to restore in fee the property of j;he wife, and the ability of the wife to receive and control it in her own right, are also novel to the common law. Common-law alimony was granted to the wife for her separate maintenance until the parties become reconciled, while the statutory allowance is in fact a final distribution of the property in order that the parties may be forever independent of each other. The principles of this final distribution are in some resp^ts dif- ferent from the principles which govern the allowance of the common-law alimony. The ecclesiastical courts ascertained the husband's income and awarded her a portion of it as maintenance. The modern courts ascertain the value of the husband's property and give the wife an equitable portion of it, or a gross sum in lieu of all her rights, or a sum payable in instalments, which is granted in lieu of maintenance and her right of dower.^ 1 Approved in Campbell v. Camp- granting the allowance. The rea- bell, 90 Ga. 687. sons assigned were as follows: "In 2 In Calame v. Calame, S4 N. J. the ecclesiastical law, as it existed Eq. 440, the court refused to follow in England prior to the statute of the ecclesiastical practice in grant- 1858, no divorces from the matri- ing alimony, either as to amount monial bond were decreed by the or the terms of the decree, as well courts. All divorces so decreed as the object to be attained in were only from bed and board, and 846 PERMANENT ALIMONY. [§ 903. The true doctrine of the laAT of permanent allowance after a total divorce is that such decree is a final adjudication of the property rights of both parties. This may be a new doctrine to those who hare considered the allowance to be the same as the permanent alimony of the common law. But this is clearly the doctrine of all modern authorities which distinguish between the two kinds of alimony. The court in making the allowance must estimate the property of both parties, and adjudicate all claims which one party has against the other. The court, sitting as a court of etpity, and having the parties before it, Avill not render a decree disposing of part of the questions before it, leaving the parties to resort to further litigation; but under its equity jurisdiction will proceed to decide all the issues which arise in the case, and will award complete relief.^ The de- cree for alimony is in many respects like the decree rendered in the final settlement of partnership accounts. Both are presumed to adjudicate all matters which might have been litigated. The best-considered authorities clearly concur in holding that the permanent allowance after total divorce is a final determination of all property rights growing out of the marriage relation, or otherwise existing between the parties at the time of divorce.^ It is this consideration that whatever provision was made by under our law, is unqualified and the courts for the wife while the absolute, and the wife is no longer separation continued was made the wife, and no longer holds her with reference to a probable or pos- dower or other interest in the prop- sible reconciliation, and was not erty of the husband, to be asserted meant to discourage it. Hence in his life or at his death, the nat- alimony, as a general term, if not ure and principles of the provision restricted in meaning to stated to be made for her rights by the allotments of income, was yet a courts are essentially and radically pi'ovision which, in point of fact, different." was made in that class of cases by i Pomeroy's Equity Jur., § 331. payments from time to time, and 2 Parker v. Albee, 86 la. 46, 53 N. not at once and in full of all future W. 533 ; Patton v. Laughridge, 49 la. demands. It could not well be, and 318; Tatro v. Tatro, 18 Neb. 395, certainly did not need to be, the 85 N. W. 571 ; Behrley v. Behrley, 93 latter. But where the divorce, as Ind. 255, and cases cited; Mucken- § 90-i.J PERMANENT ALIMONY. 84T controls the amount of the permanent allowance in cases where both parties have property rights. As a decree in final settlement it makes the wife a creditor of the husband^ tind it is not therefore subject to revision and does not ter- minate on the death of either party.^ § 904. Liability of wife to pay the husband alimony. — Ko instance could occur at common law in which the court would decree alimony to the husband; and, in the absence of any statute creating such liability, the wife would not be- liable to an action for alimony, although she is enabled by statute to hold and transfer real and personal property in hCr own name and rig'ht.- But under modern legislation the wife may have all the property transferred to her by the husband, and it would be inequitable that, when a divorce is granted for her fault, she should retain the property. To do exact justice in the premises, the court may make such decree respecting an allowance to the husband as will place him in as good a situation as if the marriage was not dis- solved. In some states it is provided that alimony may be decreed to either party .^ And in proper circumstances ali- mony may be decreed to the husband although he is the guUty party.* "Where a division of the property is made in the decree, it may be convenient to allow the wife to retain the real estate, and to pay the husband in easy instalments the value of his interest in the property.^ The English courts are authorized by statute to exercise a very liberal discretion in adjusting the property of both parties when the marriage is dissolved, and may increase the husband's burg V. Holler, 29 Ind. 139; Thomp- 2 Somers v. Somers, 39 Kan. 133, son V. Thompson, 138 Ind. 288, 31 17 P. 841. N. E. 529; Gray i'. Thomas, 83 Tex. 3 Garnett v. Garnett, 114 Mass. 246, 18 S. W. 721; Johnson u John- 347; Abel v. Abel (la.), 56 N. W. son, 65 How. Pr. 517; Meldrum v. 443. Meldnim, 15 Colo. 478, 34 P. 1088; * Barnes v. Barnes, 59 la. 456. Roe V. Roe, 53 Kan. 724, 35 P. 808. ^ Snodgrass v. Snodgrass, 40 Kan. 1 §§ 933, 933, 933a, 934, 935. See 494. also on this point. Smith v. Smith, 45 Ala. 364, quoted in § 933a. S48 PERMANENT ALIMONY. [§ 905. allowance under a marriage settlement or grant him an allowance from the wife's income.' Under a statute which provides that " the court, on de- creeing a divorce, shall make provision for the guardian- ship, custody and support of the minor children of such marriage," a decree may be entered providing that the wife shall pay to the husband one-third of the rents and profits for the support and education of the children.^ In Oregon the husband is entitled to one-third of the Avife's real prop- erty after a divorce for her fault, under a statute allowing that proportion to the party obtaining the decree.^ §905. When alimony is refused. — Alimony is refused whenever from the circumstances of the case there is no reason or necessity for allowing it. Where the husband has no income or property, and is unable to wprk, no allowance will be made. Nor is the wife entitled to anything where the husband's resources are all required to support the chil- dren. 'No necessity appears where the wife has sufficient separate property of her own to support her as if the mar- riage had continued, or where sufficient property has been conveyed to her by the husband.* A valid marriage settle- ment or ante-nuptial contract may obviate the necessity for alimony where the terms are fair and the provision for the wife is adequate.^ These contracts are perhaps valid so far as they aifect the wife's property rights, but do not relieve 1 Swift V. Swift, 15 p. D. 118; false pretenses. Munroe v. Mun- Benyon v. Benyon, 1 P. D. 447; roe, 20 Or. 579, 26 P. 838. March v. March, 1 P. & M. 440. * Harrison v. Harrison, 49 Mich. 2Cheeveru Wilson, 76 U. S. 108. 240; Eose v. Rose, 11 Paige, 166; 3 Eees w Eees, 7 Or. 48. It is dif- Stevens v. Stevens, 49 Mich. 504; ficult to see the object of depriving Stultz v. Stultz, 107 Ind. 400. the court of the power to make an * Galusha v. Galusha, 116 N. Y. equitable division of the property 635, reversing 43 Hun, 181. See in such cases. Under such statute ante-nuptial contract held a bar. the husband may recover money Corey v. Corey, 81 Ind. 469. See advanced to the wife before mar- contra, Wilson v. 'Wilson, 40 la. riage, where it is shown that the 230; Miller v. Miller, 1 N. J. Eq. marriage and a release of all claim 386. for the money was obtained by § 905a.] PERMANENT ALIMONT. 849 the husband from the obligation of support.^ If not suifi- cient an additional amount may be awarded.^ And the court may in its discretion consider the nature of the husband's offense, and award something in addition as a compensation for her damage.' Agreements to pay the wife a certain sum during separation will not constitute a bar to the allow- ance; but if the sum is adequate it may be ratified by the court. It wiU not be ratified if the rights of the wife are not fuUy protected and the payments properly secured.* Alimony must be refused when a divorce is denied, unless there is some statute to the contrary. If the husband ob- tains a divorce from his wife he is not liable for her con- tinued support in the form of alimony. In some circum- stances, however, the court will make some allowance for a guilty wife.* § 905a. AunuIIment of marriage. — 'So permanent ali- mony can be granted on a decree of nullity, as such decree is a finding that no vaM marriage ever existed.^ Where j the statute does not confer the power to award permanent aMmony on a decree of nullity, the court has the power as a court of equity to restore to the parties the property 1 Logan V. Logan, 3 B. Mon. 14^ 6 Fuller v. Fuller, 33 Kan. 583; 149. Wilhite v. Wilhite, 41 Kan. 154. 2 Benyon v. Benyon, 1 P. D. 447. Stewart v. Vandervort, 34 W. Va. 3 Steams v. Steams (Vt.), 28 A. 524. This was an action to annul •875. After a decree of divorce and a marriage because the wife had a ahraony has been rendered, and- former husband living. The wife the court has reserved the power applied for permanent alimony and to modify the decree, the wife proved that she had married in may obtain an order annulling good faith, having good reason to the agreement and an allowance believe that her husband was dead ; as if such agreement had not ex- that the parties had lived together isted. Amounts paid by the hus- for twenty years and had acquired band on said agreement are for her property by their joint labor and support and need not be restored economy. It was held that in the by the wife. Galusha v. Galusha, absence of a statute in force when 188 N. T. 373. the void marriage was contracted * Evans v. Evans (Ky.), 20 S. W. the court had no power to award i605. permanent alimony. 6 §907. 54 850 PERMANENT ALIMONY. [§ 906!- owned by each prior to the marriage.' In some states the statutes provide that alimony may be granted as in other cases.^ The object of these statutes is not to permit the' court to grant the regular permanent alimony for the sup- port of the wife and in compensation for her right of dower^, but some just and reasonable amount in restitution of the- property received by the husband by reason of the marriage- and compensation for the services of the wife. §906. Alimony where a divorce is denied. — It seems that where neither party is guilty of a cause for divorce, and a decree is denied, the court cannot enter a decree for alimony. If the husband has not been guilty of a causefor divorce he is not liable for the separate maintenance of the wife. It is her duty to return to his house.^ If she is not guilty of conduct which is a cause for divorce it is his duty to receive her. Where it is provided that, where the hus- band is guilty of certain causes for divorce, the court may enter a decree of separation or " such other decree in the 1 A. V. M., 10 p. B. 178. See other a judgment annulling a marriage^ remedies, such as recovery of dam- the court may make provision for ages, rents and profits, etc., in restoring to the wife the whole or § 1033. A court of equity will en- any such part as it shall deem just, join the enforcement of a decree and reasonable, of any estate which for alimony where it is shown that the husband may have received the marriage is void. Scurlock v. from her, or the value thereof, and Scurlock, 93 Tenn. 639, 33 S. W. 858. may compel him to disclose what 2 Van Valley v. Van Valley, 19 estate he shall have received and O. St. 588. Section 8437, MoClain's when and how the same has been Annotated Code of Iowa, provides disposed of." Wheeler v. Wheeler^ that, " In case either party entered 76 Wis. 631. Under this statute into the contract of marriage in the court may compel the hus- good faith, supposing the other to band to return to the wife the- be capable of contracting, and the amount he received from her with marriage is declared a nullity, interest thereon; and where the such fact shall be entered in the husband and wife have been part- decree, and the court may decree ners, the husband is liable to the such innocent party compensation wife for one-half of the net profits' as in cases of divorce." Barber ■«. of the business -with interest. Barber, 74 la. 301; Daniels v. Mor- Wheeler v. Wheeler, 79 Wis. 303. ris, 54 la. 369. The Wisconsin stat- 3McCahill v. McCahill, 71 Hun,, ute pro-vddes that, " Upon rendering 334, 35 N. Y. Supp. 331. § 907.]. PEK3VLA.NEXT ALIMONY. 851 premises as tlie nature and circumstances of the case re- quire," the court may refuse a decree of divorce and allow alimony.^ There are statutes in several states providing that although a divorce is refused the court may make such order concerning the support and maintenance of the wife and of her children as may be necessary. The circumstances under which such a decree will be made must be of the same nature as would justify a decree of divorce.^ Where the parties are , in mutual fault as to the conduct complained of, the courts will generally refuse alimony or a division of the property unless the statute permits such relief.' § 907. When a guilty wife may receive alimony. — Ac- cording to the ecclesiastical practice the guilty wife received no alimony, although there may have been some mitigating circumstances in her favor, and she might have brought a considerable dowry to her husband.* Her offense relieved her husband from all duty of support. But the severity of this rule soon became manifest, and it was customary tO' make some provision for the wife when a divorce was granted by parliament to the husband.* The divorce court now has discretionary power to grant her alimony, but will ordinarily refuse to do so.* In New York, Missouri and California the court is prevented from exercising any dis- cretion in the matter by the provision of the statute that alimony may be allowed where a divorce is granted for the offense of the husband.'' 1 Nicely u Nicely, 40 Tenn. 184. 3 Van Brunt v. Van Brunt, 52 2Rucknian v. Ruckman, 58 How. Kan. 380, 34 P. 1117. Pr. 278 ; Douglas v. Douglas, 5 Hun, * 3 Blackstone's Com. 94 ; Perry i;. 140; P. u P., 24 How. Pr, 197: Davis Perry, 2 Barb. Ch. 311; Allen v. V. Davis, 1 Hun, 444; Atwater v. Allen, 43 Conn. 419; Palmer v. Atwater, 53 Barb. 631; Chaffee v. Palmer, 1 Paige, 276. Chaffee, 15 Mich. 184; Tilton v. Til- 5 3 Law Rep. 219. ton (Ky.), 29 S. W. 290. See, also, eRatclifl v. Ratcliff, 1 Swab. & sec. 136 of California Code, as in- T. 467. terpreted in Hagle u Hagle, 68 Cal. "Waring v. Waring, 100 N. T. 588; Hagle v. Hagle, 74 Cal. 608; 570; Mclntire v. Mclntire, 80 Mo_ Peyre v. Peyre, 79 Cal. 336. 470; Everett v. Everett, 53 Cal, 883; Doyle v. Doyle, 36 Mo. 545 852 PEKKANENT ALIMONY. [§ 907. The Kentucky statute provides that, " if the wife have not sufficient estate of her own, she may, on a divorce obtained by her, have such allowance out of that of her husband as shall be deemed equitable." A literal construction of this statute would be that, because the divorce was not obtained by the wife in a proceeding by her for that purpose, she is not entitled to alimony. But it is held where a divorce is granted to the husband on account of separation for five years, and- he is in fault, having left the wife, the decree of divorce will not be disturbed, but the wife will be allowed alimony.! The statute is construed to embrace any case where the wife is entitled to obtain a divorce, though the husband is seeking it;^ or where she is guilty of desertion, but is otherwise innocent or not greatly at.fault.^ In most of the states the provisions of the statute relating to alimony confer an unlimited discretion upon the court to allow alimony according to the conduct of the parties and the circumstances of the case.* The common-law doctrine was held to be modified by the general terms of a statute Avhich provided as follows : " When a divorce shall be decreed, the court may make such order touching the alimony and main- tenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable \ Laoey v. Lacey (Ky.), 23 S. W. 111. 74; Eeavis v. Eeavis, 1 Scam. 673. (111.) 343; Fiveooat v. Fivecoat, 82 2 Davis V. Davis, 86 Ky. 32, 4 S. la. 198; Zuver v. Zuver, 36 la. 190 W. 832. Pence v. Pence, 6 B. Mon. 496 ' Hoover v. Hoover (Ky.), 21 S. W. Gains v. Gains (Ky.), 19 S. W. 929 234. Brandon v. Brandon, 14 Kan. 343 * See statutory provisions in the Graves u Graves," 108 Mass. 314 following cases: Lovett v. Lovett, Sheaf e v. Sheaf e, 4 Fost. (N. H.)564: 11 Ala. 763; Luthe v. Luthe, 13 Sheaf e v. Laighton, 36 N. H. 240: Colo. 431; Chandler u Chandler, 13 Janvrin v. Janvrin, 59 N. H. 23 Ind. 492; Conner v. Conner, 29 Ind. Dailey v. Dailey, Wright, 514; Ald- 48 ; Hedriok u Hedrick, 38 Ind. 291 ; rich v. Aldrioh, 21 Ontario Sup. 447 ; Cox V. Cox, 25 Ind. 303; Coon v. Buckminster v. Buckminster, 38 Coon, 26 Ind. 189; Hyatt v. Hyatt, Vt. 248. In Nebraska and Wiscon- 33 Ind. 309; Deenis v. Deenis, 79 sin alimony may be granted a § 907.] PERMANENT ALIMONY. 853 and just." ' The reasons why alimony is sometimes allowed to a guilty wife are: To provide for the support of children, if the custody of any are awarded her ; to permit the court to make a partial restoration of the property which she brought to her husband at marriage, or any subsequent con- tributions she may have made; to provide for her to some extent so that she will not become a public charge or be forced into prostitution, and to permit the court to make some allowance where there are some mitigating circum- stances, in order that justice may be tempered with mercy. But it is error to allow alimony to a wife where there are no mitigating circumstances. Thus, where a husband ob- tained a divorce from his wife for desertion, it was held that the %vife was not entitled to any allowance where she brought no means with her, and without any excuse had deliberately abandoned her husband and lived in adultery .^ The discre- tion of the court may be influenced in favor of the wife where the evidence in the case was not free from doubt, or where the husband has not been free from fault. All the equities of the case are then entitled to some weight, and the court may alleviate the harshness of the decree by the amount of the allowance. In an Illinois case these consider- ations are thus commented upon : " In the present case it appears that the husband has ample property for a comfort- able maintenance for himself and family. The labor and frugality of the wife have contributed to its acquisition. She has passed the meridian of hf e and is without a separate estate. If the evidence does not show she was entirely jus- tified in deserting her husband, it lacks so little that the difference is almost inappreciable. It is equitable that the husband, out of his abundance, should contribute to her sup- gmlty wife in all cases unless she 2 Spitler v. Spitler, 108 111. 120. has committed adultery. Dicker- See, also, Hiokling v. Hickling, 40 sonu Dickerson,26Neb. 318; State 111. Ap. 73; Spaulding v. Spauld- V. Smith, 19 Wis. 531. ing, 133 Ind. 123, 33 N. E. 331, and 1 Spitler V. Spitler, 108 111. 120, cases cited. and cases cited. Approved in Luthe V. Luthe, 13 Colo. 431. 854 PERMANENT ALIMONY. [§ 908. port, to prevent her becoming a burden upon others, even if her conduct had been far more objectionable that it is proved to have been." ^ § 908. The amount of the permanent allowance.— There is no absolute rule for determining the amount vrhiph the wife should receive when an absolute divorce is rendered. It is not a proportion of the husband's income or of his property. The amount is determined by the equities of the case and the financial condition of the parties. The terms of the statutes provide the only rule, perhaps, which is pos- sible in the nature of the case) "We find the following ex- pressions in the statutes : " Such allowance as the court shall deem just ; " "having regard to the circumstances of the par- ties respectively ; " " suitable allowance to the wife for her support, during her life, or for a shorter period, as the court may deem just ; " " such decree ... as the circumstances of the case shall render just and proper ; " and other similar phrases, conferring a broad and hberal discretion upon the courts to consider all the circumstances of the casa, and to make such provision for the wife as the equities of the case require. Some aid may be derived from the observations of the courts as to the considerations which should influence judicial discretion in arriving at the amount of alimony. " The power which the statute confers," says one court, " is to make such allowance as the court shall deem just, having regard to the circumstances of the parties; that is, the amount and income of the husband's estate and the other duties and burdens chargeable upon him, and the rank and condition in life of the wife. On a divorce for adultery, the considerations governing the amount of alimony are es- sentially of a pecuniary nature. If the defendant have the ability to pay, the injured party is to recover such an allow- ance as will correspond with her social position, and at least maintain her in the style and condition that her husband's 1 Deenis u Deenis, 79 111. 74. See, 28; Gooden v. Gooden, 1891 Erob. also, Davis v. Davis, 86 Ky. 32; 395. For award to guilty husband, Midwinter v. Midwinter, 1892 Prob. see Abel v. Abel (la.), 56 N. W. 442. ^ 908.] fEBMANEHT ALIMONY. 855 fortune would have reasonable justified her maintenance but for his infidelity. She is not to be put on a stinted allow- ance because the husband has been unfaithful to his mar- riage vows; but this is rather a reason, if his estate be ample, that should receive a generous and liberal support. The law allots no definite proportion of the husband's es- tate for alimony, but leaves the court to award such sum as in the discreet exercise of the power, and having regard to the circumstances of the parties, shall be deemed just. As no two cases are alike, what would be just in one might be unjust in another. Where the husband is possessed of a large estate and has no children or relatives dependent on his bounty, and the wife occupies a high social position and ' is a lady of refined and intellectual tastes, it would be just to award such a sum as would be ample to maintain her in the state to which she has been accustomed, though such sum was one-third or even one-half of his income. On the other hand, where the estate of the husband is limited, and he has duties or burdens chargeable upon him, and the Avife's condition and station in life is comparatively humble, it would not accord with a just sense, nor would there be a fitness and propriety in it, to strip the husband of the bulk of his property and bestow it on the wife. On adjusting the allowance where there has been a divorce for adultery, as it is an act of judicial discretion, the court may take into account imputations against the wife, and even her moral delinquencies, after judgment has passed in her favor ; but under the statute, and in harmony with the course of judi- cial decision, the main and legitimate subjects of inquiry are the proper measure of the wife's expenditures, the amount and incoine of the husband's estate, and other duties or burdens chargeable upon him." ' 1 Forrest v. Forrest, 35 N. Y. 501- nocent party should not be left to -515. Mr. Bishop lays down the suffer pecuniarily for having been following principles for the allot- compelled, by the conduct of the ment of aUmony on a decree for other, to seek the divorce. Sec- .absolute divorce: "First. The in- ond. The wife, made thus in a cer- 856 PERMANENT ALIMONY. [§ 908.- The decree must be equitable and not oppressive. The- circumstances of the husband must always be considered: The decree should, as far as possible, provide a suitable maintenance for the wife without impairing the capital of the husband or confiscating his ready means. It is an abuse of discretion to allow the wife so large an amount of real and personal property as to destroy the husband's business,, when a gross sum might have answered the same purpose.'- The object of the English divorce court in fixing a per- manent maintenance and adjusting the property rights of the parties is to place the innocent party, as far as practi- cable, in the same pecuniary condition as before the mar- riage was dissolved.^ The leading principle in such cases seems to be, " The innocent party should not ie left to suffer pecuniarily for Jux/ving ieen compelled, hy the conduct of the other, to seek divorce." ' Accordingly the innocent wife shouldi receive the same support as if the parties had continued to- liye together.* If, however, the wife has separate property,, or an inchoate right of dower, the court must allow com- pensation for her property rights in addition to her ordi- nary maintenance. In many cases, but not in all, an admi- rable equity may be accomplished by treating the wife as if the marriage had been dissolved by death, and allowing her the rights of a widow in both personal and real property.' Such a rule, if followed in all cases, would deprive the court of the discretionary power to regulate the amount accord- ing to the conduct of the parties and the necessities of the tain sense a -widow, should not proved in Calame v. Calame, 34 usually be set back simply where N. J. Eq. 440. she stood in point of property i Raymond v. Eaymond, 13 111. when she entered the marriage. Ap. 173. See, also, Rea v. Rea, 53- She has given her time, her vir- Mich. 40. ginity, her earlier bloom, where ^ggnyon v. Benyon, 1 P. D. 447.- she has been awarded only with 3 Mussing i;. Mussing, 104 111. 136 ; ill-faith in return for her faith. Johnson v. Johnson, 36 111. Ap. 153> Third. She should not stand worse 4 Packard v. Packard, 34 Kan. nz -,- than if death, instead of divorce, Boyoe v. Boyce, 37 N. J. Eq. 433. had dissolved the connection." Ap- 'Thornberry v. Thornberry, 4- Litt. (Ky.) 351 (1838). § 908.] PEEMANENT ALIMOITT. 857 case. Another rule is that " where the wife, by her industry and economy, has contributed to the accumulation of the property, and where the divorce has been granted to her on account of the misconduct of the husband, . . . she should not be placed in a worse condition than if she had survived her husband; otherwise the husband would be permitted to take advantage of his own wrong.'" And this rule is approved so far as it fixes the minimum amount of the allowance.^ A just and equitable allowance made upon a decree dis- solving the marriage must compensate the wife for all dam- ages which she may sustain, and place her in a financial condition as good as if the marriage had continued. Equity requires that the husband should not profit by his own wrong. The court, in estimating what allowance will be proper under the circumstances, should consider all the prop- erty rights of the wife separately. The allowance is not to be a mere provision for the continued support of the wife, but is a composite sum having one or more of the following elements according to the circumstances of the case : 1. Compensation for the wife's property rights.' 2. Compensation for injuries.* 3. Compensation for the loss of support.' It wiU be noticed that upon a divorce a mensa the first two elements do not form a part of, or in any way influence, the amount of the allowance. For this reason it is neces- sary to distinguish between the allowance on absolute di- vorce and the permanent alimony of the common law on a decree a mensa. The reason of the common law applies only to the last two elements; and where neither husband nor wife has property, and the decree is based upon his income, the allowance is substantially that of the permanent alimony of the common law. ' Musselman v. Musselman, 44 ^ See § 909. Ind. 106. ■" § 910. 2 Graft V. Graft, 76 Ind. 136, » § 911. 658 PEEMANENT ALIMONY. [§ 909. § 909. Compensation for the wife's propertjv rights. — We have seen that the decree for a permanent allowance is a final adjudication of all property rights between the par- ties. After such decree neither party has any claim upon the other of any kind. The parties have in the proper tri- bunal and at an appropriate time had an opportunity to litigate their property rights, and the decree is presumed to be an adjudication of all matters which might have been tried in such action. It follows that in estimating the proper a,mount for the wife aU her claims against the husband must be considered. One element iri the permanent allowance is the compen- sation for the wife's contribution to the common fund. "What she has contributed was for the benefit of both, and if so applied should' be in part restored, if the husband's means are sufficient. This restoration may be accomplished by a division of the property, by the return of specific prop- erty, or by including the value of her contributions in esti- mating the allowance. If the decree is rendered by a court of equity, it seems clear that the husband may .be ordered to restore specific property to the wife.^ In some states the power to restore separate property to the wife is de- rived from statute.^ In various circumstances the husband will be relieved from restoring the wife's separate property or its equivalent ; as where the money or proceeds of the property have been consumed by the family, and the hus- 1 Vincent v. Parker, 7 Paige, 65; v. Day, 2 Pick. 316; Pkge v. Estes, Holmes v. Holmes, 4 Barb. 295. 19 Pick. 269; Grubb v. Grubb, 1 See, also, A. v. M., 10 P. D. 178; Har. (Del.) 516; Handlin v. Hand- Wood V. Wood, 14 P. D. 157. It is lin, 37 W. Va. 486,' 16 S. E. 597; almost a matter of course for the Jackson v. Jackson, 1 MaoAr. 34; court to apportion the household Dillon v. Starin (Neb.), 63 N. W. 12. furniture. But see contra on a de- Where the court allows the wife cree of separation. Doe v. Doe, 52 a sum in lieu of her equitable Hun, 405. interest in the lands purchased 2 Chase v. Phillips, 153 Mass. 17; with her money the legal title to Tayman v. Tayman, 2 Md. Ch. 393; which is in the husband, the value Flood V. Flood, 5 Bush, 167; Dean of her interest should be carefully t\ Richmond, 5 Pick. 461; Kriger estimated, as the decree deprives § 909.] PEHMANENT ALIIIOXY. 859 band has only sufficient means to support the family.* Gen- erally the courts do not attempt to restore specific property, but accomplish the same purpose by estimating the amount of .property the wife brought to the common fund at marriage, or subsequently contributed by her, and increasing the allow- ance accordingly.^ "Where she has made no contributions the allowance is smaller, and is based on other considera- tions.' The fact that she had no separate estate, but holds property conveyed to her by her husband, is not a bar to an allowance ; but the income from the property is deducted from the estimate of the proper allowance.^ If the wife had no property at marriage, and contributed nothing except her services during the time the parties lived together, she is not entitled to a very liberal award of alimony.^ Where the property has been acquired by joint effort the allowance should be liberal.* In such case an equal division would seem to be a proper basis; but that proportion might be in- creased where the husband is guilty of some serious offense against the wife. The loss of the inchoate right of dower is another ele- ment of the damages incurred by the wife on a total di- vorce. She ceases to be his wife and cannot inherit as his widow, for the total divorce terminates all her non-vested her of all equitable interest in the ^wilson u Wilson, 102 lU. 297; land. Brooks v. Akeny, 7 Or. 461. Wilde v. Wilde, 37 Neb. 891; Ees- 1 See other circnmstances in Dean sor v. Eessor, 82 111. 442; Atkins v. V. Dean, 5 Pick. 428; Warner v. Atkins, 13 Neb. 271; McConahey Warner, 33 Miss. 547; Hagerty v. v. McConahey, 21 Neb. 463; Cum- Harwell, 16 Tex. 663; Sharp v. mings v. Cummings, 50 Mich. 305; Sharp, 84 Tenn, 496; Whittier Bobbins v. Bobbins, 101 111. 416. uWhittier, 11 Fost. (N. H.) 452; 3 Id. ; Leach u Leach, 46 Kan. 724, Jennings v. Montaigne, 3 Gratt. 27 P. 131. 350; Lishey i). Lishey, 3 Tenn. 1, < Cole i). Cole, 27 Wis. 531. and cases cited. Where the hus- syost v. Tost (Ind.), 41 N. E. 11. band and his family occupied the « Gercke v. Gercke, 100 Mo. 237, wife's house during the suit for di- 13 S. W. 400; Musselman v. Mussel- vflrce, the husband is not liable to man, 44 Ind. 106; Sesterhen v. Ses- her for the use of the property, terhen, 60 la. 301; Hedricku Hed- Edwards v. Edwards (Miss.), 15 So. rick, 138 Ind. 533. 43. 860 PERMANENT ALIMONY. [§ 910, rights dependent on the marriage. In some states this ele- ment is not included in the estimate, as the statute provides that on divorce the right to dower accrues as if the husband were dead.^ Yet in these states it is competent for the court to make an allowance in lieu of dower.^ The court would have no authority to include the value of the dowei" right in an allowance on a decree a mensa, as such partial divorce does not terminate the right of dower.' A provision- in lieu of dower on such decree would not bar the right of dower.* "Where a provision is made for the wife on a total divorce, either in a decree for alimony or in a decree entered in conformity to the agreement of the parties, such provis- ion is presumed to be in lieu of dower.^ And this is true although the statute provide that the wife is entitled to dower on divorce in her favor as if the husband were dead.* The court may award an allowance in lieu of dower, although the statute preserves the right of dower after divorce.'' The value of the inchoate right of dower is not to be esti- mated as if the husband were dead, unless the statute so provide. The value of the right will depend upon the pos- sibility of the wife surviving the husband, as shown by the age and health of each party, and other circumstances.* § 910. Compensation for injuries. — The suit for divorce is not an action in tort to recover damages inflicted by a cause for divorce. To recompense the injured party, and relieve him or her from the obligations of the marriage, might be exact justice between the parties; but it is clear that such a rule would place the marriage relation upon the same level as parties bound by an ordinary contract, — a po-, 1 Percival v. Peroival, 56 Mich. * Grain v. Cavana, 36 Barb. 410. 297, 32 N. W. 807; Orth u Orth, 69 ^Xatro u Tatro, 18 Neb. 395-^ Jlich. 158, 37 N. W. 67; Lamkin v. Adams v. Storey, 135 111. 448. Knapp, 20 O. St. 454; Crane v. ^ Tatro u Tatro, sifpra. Fipps, 29 Kan. 585. 'Beed v. Reed, 86 Mich. 600;. 2 Owen V. Yale, 75 Mich. 256, 42 Owen v. Yale, 75 Mich. 256, 43 N. N. W. 817; Tatro v. Tatro, 18 Neb. W. 817. 395; Plaster u Plaster, 47 111. 290. SGeroke v. Gercke, 100 Mo. 337. 3 Taylor v. Taylor, 93 N. C. 418. 13 S. W. 400. § 910.] PEKMANENT ALIMONY. 861 sition repugnant to sound public policy. The husband's misconduct is only an element in the composite sum -which is to be allowed the Avif e. The statute requiring the amount to be fixed with " due regard to the circumstances of the parties " requires the court to consider the nature of the husband's offense. " The wife," says Mr. Bishop, " should not ordinarily be set back simply where she stood in prop- erty when she entered the marriage; she has given her time, her virginity, her earlier bloom, where she has been rewarded with ill-faith in return for her faith." So the ecclesiastical courts considered the nature of the husband's offense, and its effect upon the wife, and regulated the amount accord- ingly.i Our courts have followed the same principle, and to some extent rewarded the wife for meritorious conduct and made some reparation for the cruelty and hardship endured during the marriage.^ Where the husband has communicated a venereal disease to the wife and thereby permanently injured her health, such fact may be considered in fixing the amount of alimony.' The fact that judicial discretion is influenced by the nature of the husband's de- lictum has led some of our courts to consider alimony as compensation for the injury inflicted by the misconduct and by the breach of the marriage contract to love and cherish. And there are some recent adjudications that alimony is a compensation for her injuries.* The allowance, as we have seen, is a composite sum, and the compensation to the wife for the tort inflicted by the husband is but one element of that sum. It would be better to consider the permanent 1 See leading case, Cookeu Cooke, Pauly v. Pauly, 69 "Wis. 419 ; Ensler 3 Phillim. 40, in § 901. See, also, v. Ensler, 72 la. 159; Mussing v. Bees V. Eees, 3 Phillim. 387; Du- Mussing, 104 lU. 126; Pence v. rant v. Durant, 1 Hag. Ec. 538; Pence, 6 B. Mon. 496; Davis v. Smith V. Smith, 2 PMUim. 235; Davis, 86 Ky. 33. Mytton -y. Mytton, 3 Hag. Ec. 657; ^Gusman v. Gusman (Ind.), 39 Otway V. Otvsray, 3 Phillim. 109. N. E. 918. 2 Burr V. Burr, 7 Hill (N. Y.), 207; < steams v. Stearns (Vt), 38 A. TurreU v. Turrell, 3 Johns. Ch. 391 ; 875 ; In re Spencer, 83 Cal. 460, 33 P. Lishey v. Lishey, 3 Tenn. Ch. 1; 395; Pauly v. Pauly, 69 Wis. 419. 862 PERMANENT ALIMONY. [§§ 911, 912. allowance as damages for the breach of the marriage con- tract. § 911. Compensation for loss of support.— The perma- nent allowance is principally an equivalent for the loss of the support of the husband. The obligation of support is. assumed by the husband at marriage, and on divorce for his. fault he is not relieved of this duty, but the general obliga- tion is continued by the decree for alimony. The fact that the husband has no property does not relieve him from this obligation. If the wife has separate property, or he has conveyed property to her, and either is sufficient for her sup- port, no allowance need be made ; but if either is inadequate the deficiency must be supplied by an allowance. §913. The husband's income and property. — In deter- mining the amount to be allowed the wife on a decree dis- solving the marriage, the property of the husband, both real and personal, whether productive or non-productive, will be considered. The house occupied by him may be treated as part of his resources, and its rental value estimated as a part of his income.' The inquiry extends to the date of the di- vorce, and property acquired during the suit may be in- cluded in the estimate.^ But it is doubtful if anything further than vested interests should be considered.' After an absolute divorce the wife would have no interest in prop- erty inherited by the husband.* The property must be esti- mated at its fair market value and not its speculative or prospective value or its value at forced sale.' United States bonds should not be estimated at the par value but at the market value.* Under proper pleadings the fraudulent con- iBrisco V. Brisco, 2 Hag. Con. Harris v. Harris, 1 Hag. Eo. 351; 199; Cooke v. Cooke, 3 Phil. 40; De Bruere v. Bruere, 1 Curt. Eo. 566. Blaquire v. De Blaquire, 3 Hag. Ec. * Van Orsdal v. Van Orsdal, 67 la. 323. 35. But see contra, Eeed v. Reed, 2 Sparhawk v. Sparhawk, 120 86 Mich. 600 ; Johnson v. Johnson, Mass. 390. See, also, Cralle v. 36 111. Ap. 153. Cralle, 79 Va. 183, 84 Va. 198. sgegelbaum v. Segelbaum, 39 3 Stone V. Stone, 3 Curt. Ec. 341; Minn. 358. 6 Thomas v. Thomas, 41 Wis. 339. § 912.] PERMANENT ALIMONY. 863 veyances of the husband may be set aside and the property included in the estimate. Keal property situated beyond the jurisdiction of the court may be considered as part of the resources of the husband. And so may pensions granted by the United States for disabilities acquired in the service.*' "Where the husband has health, business experience and ability, or has a profession or occupation of any kind, the amount which he usually derives from his personal exertions may be added to his income from other sources.^ Bat in this estuuate of his future income his ageand health must not be overlooked.' The court may include, as a part of the hus- band's income, the earnings of the children while in their minority.* The gross income and the gross amount of property hav- ing been computed, a reduction must be made for all ionor fide debts of the husband, the expenses of the business, and the necessary repairs ■ and improvements for his real estate,. and also all taxes on both personal and real property.' In arriving at the net income of the husband no deduction is- made for his personal and household expenses. The amount necessary for the support and education of the children is- not deducted from his net income, but is taken into consider- ation in fixing the allowance for the wife. A deduction should be made for amounts due on the husband's insurance policies, whether payable to the wife, his creditors or his heirs. If the policy can be converted into money at any time, the surrender value may be considered in the estimate- of the husband's property.* In estimating the future income? 1 Hedrick u Hedrick, 128 Ind. 533, S. W. 878; Freeman v. Freeman 36 N. E. 768. (Ky.), 13 S. "W. 346. 2 Pauley v. Pauley, 69 Wis. 419, 34 < Mussing v. Mussing, 104 111. 136. N. W. 513; Logan v. Logan, 90 Ind. ' Newsome ■;;. Newsome (Ky.), 35' 107; Battey v. Battey, 1 R. L 313; S. W. 878. Holmes v. Holmes, 39 N. J. Eq. 9; ^Forster v. Forster, 3 Swab. & T. SmaU V. Small, 38 Neb. 843 ; Butler 553 ; Frankfort v. Frankfort, 4 Notes V. Butler, 38 N. J. Eq. 636; Carlton Cas. 380; Harris v. Harris, 1 Hag. V. Carlton, 44 Ga. 316; Vemer v. Ec. 351; Pemberton v. Pemberton, Vemer, 64 Miss. 184 3 Notes Cas. 17. 3 Newsome v. Newsome (Ky.), 35 S61 PERMANENT ALIMONY. [§ 913. of the husband, the nature of the securities which he holds, and the probable profits of his business, are to be deter- mined. The fact that the husband has sustained losses by speculation, and for some time has had no profit from his investments, does not excuse him from the payment of an allowance based upon a fair income from his property under proper management.^ The fact that the husband's invest- ments are not yielding an income will not deprive the wife of alimony, for the value of the investments will be esti- mated and alimony based thereon.^ § 913. The wife's income and property. — The income and property of the wife are estimated in the same manner as the estate of the husband. Her earnings and her ability to earn are an important element in the estimate where she has been accustomed to labor of any Mnd.' "Where the wife has any means of support, the fact has an important bearing on the amount of alimony. Under the principles of the per- manent alimony of the common law, the wife was not en- titled to alimony if she possessed an income proportionate to her husband's or had adequate means of her own.* The object of the estimate being a suitable proportion of the joint income, the income of the wife was added to that of the hus- band, and a suitable proportion for the wife was estimated on this aggregate sum. The wife's income was then de- ducted from the suitable proportion, and the remainder was the amount of her allowance.^ If the .allowance ' is to be made on a decree dissolving the bonds of matrimony, this method of calculation would not apply; the permanent allowance being a compensation for property rights, etc., which would otherwise be lost on a dissolution of the mar- riage. Property derived from the husband is included in iNeil V. Neil, 4 Hag. Ec. 373; < Bremner ?;. Bremner, 3 Swab. & Theobald v. Theobald, 15 P. D. T. 249. 26. 5 3 Bishop, Mar., Sep. & Div., 2 Close V. Close, 10 C. E. Green, § 1012, citing Cooke v. Cooke, 2 434. PhiUim. 40 ; Street v. Street, 3 Add. 3 Goodheim v. Goodheim, 2 Swab. Ec. 1; Morse v. Morse, 25 Ind. 156; & T. 250. Cole V. Cole, 37 Wis. 531. §§ 914:, 915.] PERMANENT ALIMONY. 865 the estimate, and if sufficient compensation, or equal to the amount of alimony which she would otherwise receive, no allowance will be made.* § 914. "The support of the children.— In fixing the amount of the allowance the court must not overlook the support of the children of the parties. The husband is not liable for the support of his step-children, and no deduction is allowed for their support.* Before the order for perma- nent allowance is made, the custody of the children should be determined. If the husband retain them in his custody or if he remain liable for their support, the alimony should be diminished accordingly.' If his property and income are barely sufficient for the support of himself and children, alimony may be refused.* For the claims of the children are paramount to that of the wife.' The fact that some of the children are grown up and have been provided for, or are able to support themselves, should not be overlooked.* The allowance must be greater where the wife retains the custody of the children.' The amount necessary for the support and education of the children should be first determined, and the allowance to the wife can be based upon the remainder of the hus- band's property. § 915. Agreements relating to alimony. — The agree- ment of the parties with reference to the permanent allow- ance is valid, and it will generally be approved by the court, and a decree may be entered in conformity to it.' Agree- i Stevens v. Stevens, 49 Mich. 504. stead is exempt from wife's claim, 2 Freeman v. Freeman (K7.), 13 Biffle v. Pullman, 114 Mo. 50, 21 S. S. W. 246. W. 450. s Coon V. Coon, 26 Ind. 189; Metz- s Jeter v. Jeter, 36 Ala. 391; ler V. Metzler, 99 Ind. 384; Luthe Berryman v. Berryman, 59 Mich. v.Luthe,12Col.421; Graf t ». Graf t, 605. 76 Ind. 136; Sesterhen v. Sesterhen, ^ Scragg v. Scragg, 18 N. Y. Supp. 60 la. 301. 487. (Supp.) 99. In Dailey v. Dailey, 9 § 916.] PERMANENT ALIMONY. 867 increased allowance.^ If the husband is able to support him- self only, and the wife is in feeble health, the larger portion of the property may be set apart for the wif e.^ The amount of the allowance should not be large where the wife is young and healthy, brought no property to her husband, and did not aid him in accumulating any. This is especially true where she obtained a divorce for the purpose of mar- rying him, and lived with him but a short time.' Where the husband was seventy-five years old, and was the fourth hus- band of the wife, and she was his seventh wife, and the parties lived together about fourteen months, during which time she refused to perform the duties of a wife, the sum of SlOO was held a sufficient allowance on an absolute divorce for his abandonment, although his property was estimated at $2,500.* Where the husband was sixty-eight, and the wife but forty, and he was a cripple, and scarcely able to support himself and his children by a former wife, the sum of $450 alimony was held excessive, and the supreme court, not being satisfied that the evidence warranted a divorce, allowed the decree to stand, but denied all ahmony to the wife, although the husband had a home worth §1,600, and about S200 in money.'' Where the wife had deserted the husband or been guilty of other misconduct which was con- ducive of the adultery complained of, her allowance Avill be less than if she had been discreet." The amount is less where 1 Doolittle V. Doolittle, 78 la. 691, his own support, or for the support 43 N. W. 616; Gercke v. Gercke, of his wife, may be so limited that 100 Mo. 237, 13 S. W. 400; Finlay it would be better for both parties V. Finlay, Milward, 575; Lynde v. that no order for support be made, Lynde, 4 Sandf. 373. and that in lieu thereof the real 2 Webster v. Webster, 64 Wis. 438. property be given to the wife." "A case might occur where it SQummings v. Cummings, 50 would be eminently proper to di- Mich. 305. vest the title to all the real estate * Tumblesome v. Tumblesome, 79 of the husband, and vest the same Ind. 558. in the wife, especially where the sEnsler v. Ensler, 73 la. 158. husband is in fault, causing the epeckford v. Peckford, 1 Paige, judgment for divorce. The ability S74, of the husband to earn money for 868 PERMANENT ALIMONY. [§ 917. there are palliating circumstances in favor of the husband, or where the wife is partly in fault.' § 917. Allowance where the husband has no property. — . It has been held that on a dissolution of the marriage the court may allow the wife a portion of the husband's income from property, but if he has no jDroperty the court cannot bind his future earnings and savings.^ But where the court is empowered to exercise a liberal discretion in making a suitable provision for the maintenance of the wife, it is held that alimony may be awarded where the husband has no personal or real property.' The wife must be placed in as good a position as she was before marriage, when she de- rived her support from his personal exertions. During mar- riage the obligation of support continues although he has no property, and the court may consider his income from personal services as well as from any other resources. And it seems that, if the husband is temporarily out of employ- ment, this will not prevent a decree for alimony, as the court may consider his ability to earn when employment is found.* "Where the income is from personal labor, the court should consider the health, age and habits of the parties, their man- iBeallu Beall, 80 Ky. 675; Severn if, upon tke divorce, nothing can V. Severn, 7 Grant Ch. (U. C.) 109. be given to her, or less than may 2 In this case the statute em- be suitable to her rank and condi- povered " the court in all oases of tion in life, by reason of the hus- divorce to decree to the wife so band's poverty, it is her misfortune, divorced such part of the real and to wliioh she must submit." Chen- personal property of the husband ault v. Chenault, 37 Tenn. 247; ap- as the court shall think proper, proved in Boggers v. Boggers, 65 having reference, of course, to all Tenn. 299. See, also, Feighly v. those considerations which prop- Feighly, 7 Md. 537. erly belong to the determination 3 Canine v. Canine (Ky.), 16 8. W. of the question." Upon an abso- 367; Bailey v. Bailey, 21 Gratt. 43; lute divorce it was held that " the McCrocklin v. McCrocklin, 2 B. wife can have no claim on the Mon. 372; Miller v. Miller, 75 N. C. future earnings or acquisitions of 70; Muse v. Muse, 84 N. C. 35; the husband, any more than upon Prince v. Prince, 1 Rich. Eq. 282; his protection, society or other Parlter v. Parker, 61 IlL 369. conjugal rights or duty ; he is alike ' < Canine v. Canine (Ky.), 16 S. W. discharged from them alL And 367. § 918.] PERMANENT ALIMONY. 869 ner of living, and estimate what the -wife will need for her support under similar circumstances in the future.- From this estimated amount the court may deduct what the wife can probably earn by her own exertions, and the result will be a fair allowance for her. For where the wife has been accustomed to labor, her earnings may be considered to re- duce the amount taken from the husband's income.' Other circumstances may be taken into consideration by the court, and the amount thus obtained may be increased according to the nature of the husband's misconduct, or diminished where it appears that she is not free from fault.^ Where the permanent allowance must be paid from the earnings of the husband, a sound discretion would require the court to make such allowance payable in monthly or quarterly instalments, and the decree should be limited to the joint lives of the parties, and to terminate upon the mar- riage of the divorced wife. Otherwise the husband, if he marries again, may find it impossible to support the second family and the former wife.' Where the question is not settled, or the statute is silent upon the power to revise de- crees of alimony, the decree should reserve the power to revise such decree from time to time.^ This form of decree is absolutely necessary to make an equitable allowance to the wife where the husband has no property. And to over- look any of these considerations is perhaps an abuse of dis- cretion. § 918. Pleading and practice. — There is no uniform practice in making and hearing the application for perma- nent alimony or allowance. Sometimes the application is a part of the petition for divorce ; and this method has some advantages where an injunction is prayed for, or relief is iMcGrady v. MoGrady, 48 Mo. enough where the parties were Ap. 668; Abey v. Abey, 33 la. 575; equally at fault for the existing Farley v. Farley, 30 la. 353; Burs- state of aiiairs. ler V. Bursler, 5 Pick. 427. ^ See situation of husband in 2 In Eussell v. Russell, 75 Mich.. Spencer, In re, 83 Cal. 110, 83 Cal. 573, it was held that an allowance 460. of two dollars per week was large ^ Green v. Green, 13 S. W. 945. 8T0 PERMANENT ALIMONY. [§ 918. sought against a fraudulent conveyance. Mr. Bishop rec- ommends the ecclesiastical practice, where the application is strictly ancillary, and no mention is made of alimony in the petition and other pleadings for divorce. But the procedure must conform to the local practice, of course. In Wisconsin the practice is to join the application for alimony in the pe- tition for divorce. This is considered the better practice, because "it accords with the analogies of equity practice, by including in the same bill all the allegations of fact upon which it may be necessary for the court to adjudicate for the purpose of a complete determination of all matters in- volved in this action." ' In the code states the general practice is to include the application in the petition or the answer. And this is undoubtedly the better practice where ancillary relief is sought against third persons or speciiio property belonging to the husband.^ The decree for ali- mony may be based upon a motion,^ or upon a petition in an ancillary proceeding.* But the decree must be based upon some allegation in the pleadings or the record; other- wise such decree is void.^ 1 Damon v. Damon, 28 Wis. 510. *Bray v. Bray, 3 Halst. Ch. 27; See, also, Prescott v. Prescott; 59 Culver v. Culver, 8 B. Mon. 128; Me. 146. Longfellow v. Longfellow, Clarke, 2 See Folerton u Williard, 30 O. 34A. St. 579; Remington v. Supr. Ct, G9 5 Cummings v. Cummings, 75 Cal. Cal. ,633; Wilkinson v. Elliott, 43 435; Bender v. Bender, 14 Or. 355; Kan. 590, 23 P. 614; Busenbark u Jordan v. Jordan, 53 Mich. 552; Busenbark, 88 Kan. 572; Sapp v. Clayton v. Clayton, 1 Ashm. (Pa,) Wightman, 103 111. 150; Wharton 53; Chandler v. Chandler, 13 Ind. V. Wharton, 57 la. 696; Powell v. 492. In Iowa the rule of ordinary Campbell, 20 Nev. 282; Bamfordv. judgments is held to be inappli- BamfOrd, 4 Or. 30; Harshberger cable to a decree for alimony; for V. Harshberger, 26 la. 503; Hender- that is an incident to the divorce, son V. Henderson, 110 Ind. 816. and the court is given full power Otherwise the wife would have to make any orders concerning no relief against third persons, permanent alimony and custody O'Brien v. Putney, 55 la. 292; Scott of children, although there is no V. Rogers, 77 la. 482, 43 N. W. 377. application for such orders. Zuver 3 Becker u Becker, 15 111. Ap. 247; u Zuver, 36 la. 190; McEwen u Roseberry u Eoseberry, 17 Ga. 139; McEwen, 26 la. 375; Darrow V. Kirch V. Kirch, 18 N. Y. Supp. 447. Darrow, 48 la. 411. § 918.] PERMANENT ALIMONY. 871 "Where the application for alimony is made in the peti- tion, the defendant may make any such answer as he desires in the answer to the petition ; ' or, if the application is by motion, affidavits may be filed by the husband showing the extent of his property. The showing made by the husband maybe contradicted by, counter-affidavits or by the intro- duction of any competent evidence on the hearing before the court or the officer to whom the question is referred. 1 Stearns u Stearns (Vt.), 38 A. 875. THE DECREE FOR ALIMONY. § 930. In general § 936. 931. Whether in gross or in in- 937. stalments. 938. 933. "When the permanent al- lowance terminates. 939. 933. "Whether marriage of the 940. divorced wife terminates 941. her alimony. 933a Revision of decree for ali- mony. 943. 934. "When permanent alimony wiU be revised. 943 935. Alimony where there is no persohal service. Alimony after divorce. "When alimony is exempt. The wife as a creditor of the husband. Attachment for contempt. "Writ tie exeat regno. Other means of enforcing payment. Suit on foreign decree for alimony. Suit on decree for ali- mony rendered in an- other state. § 930. In general. — Tlie decree for alimony may form part of the decree of divorce or may be entered as a sepa- rate decree. The terms of the decree are fixed by the court in the exercise of a sound discretion, and should state when the alimony commences and upon what events it will termi- nate. Ordinarily permanent alimony should date from the day it was allowed ; but an earlier date may be fixed when the litigation has been protracted by the husband. "Where the suit has been delayed for several years it is not an abuse of discretion to date the decree from the commencement of the action.' If the decree is based upon a decree a mensa, or is granted as a part of the personal earnings of the hus- band where he has no property, it should terminate upon the death of either party. Where an absolute divorce is rendered and the husband has no property, the decree should terminate upon the marriage of the wife, otherwise the hus- 1 Forrest v. Forrest, 25 N. Y. 501; McCarthy v. McCarthy (N. Y.), 38 N. E. 388. § 931.J THE DEOEEE FOE ALIMONY. 873 band will be compelled to support the wife of another. If the decree contains, as one of its elements, the compensation to the wife for her contributions to the common fund, or the amount is influenced by the amount of property which she brought to the husband at marriage, or is in part a com- pensation for her loss of dower, the decree should not termi- nate upon the death of the wife. The husband should be held to pay the amount to her estate. ITor, in such case, should the marriage of the wife affect her right to alimony any more than the marriage of an ordinary creditor should relieve his debtor. The allowance is not in such case a mere maintenance, to be withdrawn whenever the wife obtains maintenance elsewhere. The decree should make a separate allowance for the wife and each child. Many perplexing questions concerning the allowance may be avoided by defi- nite provisions in the decree for certain contingencies. § 931. Whether in gross or instalments. — The per- manent alimony granted by the ecclesiastical courts was payable in annual instalments. This form of alimony was admirably suited for the circumstances of the parties and their legal and social status at that time. The decree from bed and board was onlj'^ a temporary permission to live apart until the parties were reconciled and the past con- doned. 'So property rights were disturbed or forfeited by such a decree. Under such circumstances the law wisely provided that the alimony should be payable in instalments which could terminate on reconciliation.^ 1 See Hyde v. Hyde, 4 Swab. & T. erty payable in three annual pay- 80; Wilson v. Wilson, 3 Hag. Ec. ments where a decree of separation 329; De Blaquiere v. De Blaquiere, is granted. The allowance was 3 Hag. Ec. 322; Wallingsford v. changed to §15 per month. Sleeper Wallingsford, 6 Har. & J. 485; v. Sleeper, 65 Hun, 454. Haggerty v. Haggerty, 11 Grant's The practice of granting alimony Ch. 562; Maguire V. Maguire, 7 on a decree of separation has been Dana, 181. discontinued by some of the courts In New York it is held an abuse of New York, on account of the of discretion to award one-third of present laws affording a better the value of the husband's prop- remedy. Where the husband fail^ 874 THE DECREE TOE ALIIIONT. [§ &31. But an absolute divorce, dissolving the bonds of matri- mony, was unknown at common law. It places the parties in a position essentially different from a decree from bed and board. The parties are free to marry others or to be- come reconciled to each other, as they choose. All property rights depending on the marriage are terminated. The al- lowance granted under such circumstances must be a restora- tion or a division of property instead of a temporary' provision for the wife's support. Such allowance must be made in contemplation of a final settlement of property rights. The situation is therefore so different that the ecclesiastical prac- tice is not always followed by courts having the power to grant absolute divorce. The courts of England may, in granting absolute divorce, allow a gross sum or an annual sum, as the circumstances seem to require.' The early prac- tice in our country seems to have been to follow the En- glish precedents, overlooking the fact that the reasons for the allowance after absolute divorce might be different.^ At present the practice appears to be that the kind of alimony awarded is governed by the circumstances of the case. It is clear that the power conferred by the statute, to make " such order " concerning the " allowance " or " alimony and maintenance " as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just, con- fers a discretionary power upon the courts to award either a gross sum or a sum payable in instalments.' Where the or neglects to support the wife, her i Jardine v. Jardine, 6 P. D. 213; remedy is to have a criminal pro- Medley v. Medley, 7 P. D. 133. ceeding commenced against him 2 Calame v. Calame, 35 N. J. Eq. in the police court, where an order 548; Purcell v. Purcell, 4 Hen. & for support may be granted and M. 507; Eussel v. Russel, 4 Greene can be enforced by numerous offi- (la.), 36; Grain %\ Gavana, 36 Barb, cers of the court by proceedings of 410, 63 Barb. 109; Almond v. Al- a summary character. Patton v. mend, \ Rand. (Va.) 663. Patton, 13 Misc. 736, citjng Euopp 3 Galame u Galame, 34 N. J. Eq. u Euopp, N. Y. L. J. (March, 1894). 440; Plaster v. Plaster, 47 IlL 290; Where this remedy may be had, the Barrows v. Purple, 107 Mass. 438, decree of separation will become and cases cited; Eobinsori v. Rob- useless as a remedy. • inson, 79 Gal. 511, and cases cited; §■ 931.J THE DECEEE FOE ALIMONY. 875 statute requires alimony to be in gross the decree may award a gross sum payable in instalments.* Such decree is in the nature of final settlement, and it would seem to make the husband a creditor of the wife, and would not be subject to revision. In the event of the death or marriage of one or both parties the decree would not be terminated. "Where the court has discretionary power to decree ali- mony in a gross sum, it was held error to do so where the wife apparently married the husband for his wealth, he hav- ing accumulated his property before the marriage and re- ceived no property from the wife. In such case it was more just and reasonable that the allowance should be paid in instalments in order that the amount may be increased or diminished by the court, or withdrawn in case she should misconduct herself. The circumstances of the husband would, in this case, make it easy for him to secure the allowance.^ In the ordinary case, however, it is believed that a gross sum OB a specific portion of the property will prove more practical-and satisfactory.' It will terminate the litigation. The decree will not complicate the husband's property with a lien which is uncertain in amount. If a gross sum is awarded it may be secured by real estate, by a lien or mort- gage for a specific amount. The wife then has a specific income that cannot be terminated by the refusal or neglect of the husband. The amount is safe from any act of the husband, and cannot be defeated by his poverty or bank- ruptcy. The parties in a divorce suit are generally much embittered and estranged, and apt to consider any decree unjust. If the allowance is in instalments the husband is goaded by the apparent injustice of supporting a woman for Piatt V. Piatt, 9 Ohio, 37; Jeter v. v. Winemiller, 114 Ind. 540; Will- Jeter, 36 Ala. 391; Call v. Call, 65 iams t;. Williams (S.D.),61 N.W.38. Me. 407; Crews v. Mooney, 74 Mo. ilfert v. Ifert, 29 Ind. 473. 26. See, also, statutes in Taylor v. ^ Von Glahn v. Von Glalin, 46 Gladwin, 46 Mich. 332; Dinet v. 111. 134. Eigenman, 80 111. 274; Halleman SMcGechie v. MoGechie (Neb.), r,Halleman,65Ga. 476;WinemiJler 61 N. W. 692; Cochran u Cochran (Neb.), 60 N. W. 943. 876 THE DECEEB FOE ALIMONY. [§ 931. whom he entertains the deepest hatred ; a woman who is either a legal relict or the wife of another. Under such circum- stances the wife will probably be put to great expense and annoyance to recover each instalment as it becomes due.' There are two forms of decrees payable in instalments. One is a decree for a certain gross sum, which, for the con- venience of the husband, is made payable in instalments. It is in effect a mortgage securing notes which mature at certain intervals. The other form is a decree for a certain sam payable each month or other period of time. Where the latter form of decree is made a lien upon real estate of the husband it becomes an absolute bar to any conveyance by him. Ho purchaser could be found for a title incum- bered for an amount which is indefinite and subject to be increased upon the further order of the court. For the same reason no mortgage or other security could be negotiated by the husband, as the prior incumbrance is uncertain in amount. This form of decree is not " suited to our present system of laws relating to real estate, the policy of which is to render titles perfect, and subject only to liens definite in amount and duration. On the other hand, the decree for a definite sum is not an intolerable burden upon the hus- band. He may sell his real estate subject to such lien. He may negotiate a mortgage subject to it. Or he may pay the entire sum and thereby remove the lien from his real estate. In many states the practice appears to be to require the husband to execute ar mortgage for the gross sum allowed by the court. Experience has shown that such securities are not as desirable as the decree for a gross sum, as the wife may be compelled to resort to the expense and delay of a foreclosure. The decree for a gross sum has the advan- tage that, on the failure to pay any amount due, execution may issue at once. The permanent allowance being in the nature of a final settlement, payable in instalments, is a 1 WilUams v. Williams, 36 Wis. 362; McClung v. McClung, 40 Mich. 493. § 932.] THE DECREE FOE ALIMONY. 877 fixed debt, and each instalment draws interest from the time it becomes due.^ § 932. When the permanent allowance terminates.— "When the alimony is payable in instalments the decree should specify the period during which it is to be paid, and the time when it will terminate. It should also terminate by its terms upon such contingencies as the marriage of the wife or the death of either party. The failure to fix such period is an error and perhaps an abuse of discretion, bat does not render the decree void/^ Perplexing questions will arise where no time is fixed by the decree. If the alimony is allowed on a decree of sepa- ration it is clear that it will terminate on the death of either party. But if the allowance is made on a decree of absolute divorce, the only rule that can be laid down is that the nat- ure of the decree will govern. As already stated,' there are two kinds of decrees of alimony which may be made payable in instalments. One is a gross sum of money in restitution of the wife's separate property, a settlement of all property rights and other elements which may influence the court in determining the amount which may be reason- able under all the circumstances of the parties. This form is granted only where the parties are absolutely divorced, and is made payable in instalments for the convenience of the husband. The other form of decree is a mere mainte- nance granted to the wife, payable until the reconciliation of the parties, or while they are separated. It is in form and effect similar to a pension, and must be distinguished from the former decree, which resembles a decree rendered 1 Lancaster v. Elliott, 55 Mo. Ap. ant refused to pay the same be- 249, 43 Mo. Ap. 503; Winemiller cause indefinite and therefore roid. V. Winemiller, 114 Ind. 540, 17 N. E. But it was held to be sufficiently 133. certain, and contemplated the pay- 'Casteel v. Casteel, 38 Ark. 478. ment of alimony during the life of In Ex parte Hart, 94 CaL 354, the the wife or until modified by the decree for alimony after an abso- court, lute decree of divorce contained ' § 931. no definite limit, and the defend- 878 THE DECEEE FOE ALIMONY. [§ 932. on a dissolution of a partnership. This distinction is vital to the question when a decree for permanent alimony ren- dered on an absolute decree of divorce will terminate. In a recent and well-considered case this distinction is pointed out. "The rule," it was said, "which prevailed at common law, that the death of the husband necessarily and of itself put an end to the payment of alimony, was applicable only in divorces a mensa et thoro, which did not have the eifect of finally and forever terminating the marriage relation, but operated as mere temporary separation, leaving all the other marital rights and obligations in full force. In the case of such divorces, the separation was liable to end at any time by the reconciliation of the parties ; and even if no reconcil- iation took place, the marriage continued to exist until it was dissolved by death. But where, as under the statute of Illinois, alimony is awarded upon a. decree of absolute divorce, which at once puts an end to the marriage relation, the right of the divorced wife to have the alimony contin- ued to her out of the estate of her divorced husband will depend upon the nature of the terms of the decree allowing alimony.' So far as the alimony allowed on a decree of separation is concerned it is clear that it terminates on the death of either party. The reason for this is well stated by the court. " Alimony," said Eobertson, C. J., " is the maintenance se- cured by judicial authority, during coverture, or until recon- ciliation. There being no divorce a mnoulo, it cannot be right to decree any allowance for the term of the wife's life. If she surviA'e her husband she would also be entitled to dower. At his death the law provides for her ; and being then sui Juris, there is no necessity for a decree for main- tenance, nor any suitableness or propriety in such a decree." ^ 'Storey v. Storey, 13&I1L 608, re- Field v. Field, 15 Ab. N. Cas. 434; versing 33 IlL Ap. 558. Harte, Ex parte, 94 Cal. 254; Knapp 2 Lookridge v. Lockridge, 3 Dana v. Knapp, 184 Mass. 355; Francis v. (Ky,), 28; Wallingford v. Walling- Francis, 31 Gratt. 283; Casteel v. ford, 6 Har. & J. 485. See, also, Casteel, 38 Ark. 478; Burr v. Burr, § 932.] THE DECREE FOE ALIMONY. 879 Where no property rights were included in the decree for alimony and no sum can be allowed in lieu of dower, it is clear that the alimony allowed on an absolute decree of di- vorce will terminate on the death of either party, if the de- cree is otherwise in form and effect substantially the same as the alimony or maintenance allowed by the ecclesiastical courts.* Thus in those states where the absolute divorce does not teraninate the right of dower and the vested rights of the parties are expressly reserved by statute, the decree of alimony is not in lieu of property rights 'of the wife, but, is in effect a decree for maintenance and terminates upon the death of either party. " If this were not true," observes Van Brunt, J"., " we have this anomaly presented to us : that although the amount of permanent alimony depends very largely, in most cases, upon the income of the husband, de- rived from his personal efforts, that yet, when this source of revenue is entirely withdrawn, his estate is liable for the same amount of alimony, although, if that had been the only source of income, not one-tenth part of the alimony granted would ever have been allowed." " We are also confronted, with this peculiar condition of affairs: if the husband should happen, during coverture, to have been possessed of real estate, the income of the former wife would be greater, the husband being dead, than if he 10 Paige, 20, 7 Hill, 207 ; Smith v. same f orm^ as the alimony allowed Smith, 1 Root (Conn., 1792), 349; on a decree for separation and was Guenther's Appeal, 40 Wis. 115. considered to be the same. The See contra, Sloan v. Cox, 4 Hay- court said: " As alimony out of the wood (Tenn.), 75, imder a statute husband's property is a provision now repealed. for the support of the wife by him, 1 For nature and effect of the de- the obligation to pay it in the f ut- eres for alimony on a decree of ure necessarily ceases with the separation, see § 902. death of the husband ; but amounts In Knapp v. Knapp, 134 Mass. already due at the time of his death 353, it was held that the wife could are in the nature of a debt then recover arrears of permanent ali- existing, and are payable out of his mony due at the time of the death estate." Citing Smith v. Smith, 1 of the husband but no later instal- Root, 349; Wren v. Moss, 1 Gilman, rrients. The decree was in the 560. 880 THE DEOEEE FOE ALIMONY, [§ 932. were alive, as she would not only be entitled to receive the alimony granted by the court, but also to recover her dower out of his real estate." ^ But in those states where alimony is in fact a decree ad- justing and settling all the property rights of the wife, it seems clear that she thereby becomes a creditor of the hus- band, and the death or marriage of one or both parties will not affect the decree. Thus, in Indiana, where the decree must conform to a statute requiring the alimony to be in a gross sum but m'ay be made payable in instalments, it is held that the term "alimony," as used in the statute, "is not the alimony of the common law, the right to which ceased to exist or reverted to-the husband on the death of the wife, resulting from the fact that the marriage relation continued to exist until her death. But it is alimony under, and the creature of, thfe statiite, given upon an equitable settlement between the parties upon the dissolution of the marriage and of all the relations of husband and wife theretofore ex- isting between them. The reason of the rule at common law (that permanent alimony terminated on the death of the husband) does not exist under the statute, and the rule itself should not therefore be applied." ^ ' Field V. Field, 15 Abb. Pr. 434, decree was for a gross sum. She 66 How. Pr, 346. brought an action of debt on this 2 Miller v. Clark, 28 Ind. 370. In decree in Illinois and attached the this case the wife was allowed the husband's property. Afterwards gross sum of §1,200, to be paid in the husband died. It was held instalments as follows: $300 in six that the action would lie, and that months, $500 in one year, and §500 the attachment did not abate upon in two years. After the last in- the death of the husband, but stalment and interest became due might be revived against the ad- the wife died, and it -was held that ministrator of the husband's estate. the administrator might recover In Maxwell v. Sawyer (Wis.), 63 the amount due for the benefit of N. W. 383, the decree of alimony her estate. See similar case, Dinet rendered on an absolute divorce V. Eigeman, 80 111. 375. provided for the payment of cer- In Dow V. Blake, 148 III 76, 85 tain sums semi-annually to be se- N. E. 761, the wife was allowed a cured by a mortgage and notes for decree of alimony in Wisconsin a certain sum. On the death of upon her release of dower. The the husband he left a will provid- § 932.] THE DECREE FOE ALIMONY. 881 The nature of the alimony, whether a gross sum in lieu of property rights or an order for the maintenance, must be -established by competent evidence.' It cannot be shown by proof of an oral contemporaneous agreement, before the entry of the decree, that the alimony should continue during the life of the Avife. The terms of a decree cannot be af- fected or contradicted in this manner.^ In a recent and well considered case the parties had entered into an agree- ment concerning alimony, and this agreement was incorpo- rated into the decree, which recited such fact. The bond and trust deed executed to secure the performance of the •decree provided that the " heirs and assigns " of the husband were entitled to the possession of the real estate until de- fault was made " by him or them." The decree recited that the sum of $2,000 per annum was to be paid to the wife " so long as she may be and remain sole and unmarried." It was also shown that the husband had conveyed the same real estate in trust, and bound himself, " his heirs, executors, administrators and assigns," to pay the instalments due on the prior trust deed securing the alimony. In consideration of aU of these circumstances the decree was construed to be in lieu of property rights, and was not terminated by the deatk of the husband as in the case of a mere allowance.' It seems that the liberal discretion conferred upon the court to make " such order " as may seem just and equitable under all the circumstances gives the court the power, on an absolute divorce, to allow a mere maintenance during the life of the wife.^ In such case the alimony does not termi- nate on the death of the husband but may be recovered ing for the annual payment to the i See on this point Olney v. Watts, wife of the same sum during her 43 Ohio, 499, cited in next section, natural life. It was held that the ^ Maxwell v. Sawyer (Wis.), 63 decree was for alimony proper and N. W. 383, citing Freeman on Judg- ■not a division of property, and ments, § 836. therefore it terminated on the ' Storey v. Storey, 125 111. 608, re- death of the husband, and the wife versing 33 III. Ap. 558. could not recover both the alimony * Miller v. Miller, 64 Me. 484; Burr -and the annuity under the will v. Burr, 10 Paige, 30; Lawton, Pe- 56 882 THE DECEEE FOE ALIMONY. [§ 933, from his estate. It is held that such decree may be entered upon the agreement of the parties, and does not terminate upon the death of the husband.' § 933. Whether marriage of a divorced wife terminates her alimony. — The solution of this question depends upon the theory of the allovTance made by the -court upon dis- solving the marriage. If alimony is considered a sum in lieu of dower, a compensation and a payment in lieu of a divis- ion of property acquired by joint effort, or a decree for a sum brought to the husband at marriage, no subsequent con- duct of the wife should release her former husband who has now become her judgment debtor.^ On the contrary, if the sum awarded is regarded as a kind of pension, an equivalent for the obligation created by marriage to support the wife,, and which obligation is released by divorce, then it would follow that when the divorced wife marries another her second husband assumes the obligation of support, and the pension is terminated.' Or if the second husband has not sufficient ability, the amount may be reduced if she marries again.* Where the wife received a large portion of her hus- band's property as alimony and also a decree for a monthly allowance, the allowance will be cut off on her marriage to- another.' The two theories of alimony are not directly in conflict. The facts of each case may show that the court acted upon one theory or the other. ' For instance, if the husband and wife had no property at marriage and when the divorce was rendered, the allowance may have been made as a pension in lieu of the support which the husband' titioner, 13 R. I. 310; Smythe v. 3 Stillman «. Stillman, 99 111. 196, Banks, 73 Ga. 303; Ex parte ^in- reversing 7 111. Ap. 534; Bowman ter, 94 Cal. 254. v. Worthington, 34 Ark. 533. As- 1 Storey u' Storey, supra; Strat- to this theory, consult Sidney v. ton V. Statton, 77 Me. 373; Carson Sidney, 4 Swab. & T. 178; Fisher v. V. Murray, 3 Paige, 483; O'Hagan Fisher, 3 Swab. & T. 411. V. O'Hagan's Adm., 4 la. 509; Lock- ^ Albee v. Wyman, 10 Gray, 333; wood V. Krum, 34 O. St. 3. King v. King, 38 O. St. 370. 2 See, also. Shepherd v. Shepherd, ^Bankston v. Bankston, 37 Miss> 1 Hun, 340. 693. § 933.] THE DECREE FOE ALIMONY. 883 ■n^as obliged to'render under the marriage contract. Or, sup- pose the husband received a large sum of money from the wife at marriage, and on his obtaining divorce from her the court found it equitable that part of the money be restored to her in instalments as alimony. In such case the remar- riage of the Avife should not impair the decree. This dis- tinction is made in an Ohio case, where the court, on an application to vacate a decree of alimony on account of the marriage of the divorced wife, remanded the action for a new trial, and suggested that if it should " appear that the former decree, instead of being in the nature of alimony pay- able in instalments for the support of the wife, was in the nature of a permanent division of the husband's property, and that the parties fixed the same by their agreement or consent, this, if alleged and proved, may furnish a complete defense." ' Where the alimony awarded to the wife con- sisted of one-half the personal and the use of one-half of the realty for life, the remarriage of the wife will not ter- minate the decree, and such fact is not a ground for modi- fying it.2 Much of the confusion on this question is caused by the attempt to denote by the term "alimony " all the various elements and property rights Avhich are merged into one de- cree. And j'et it is believed that where the courts are per- mitted by statute to revise decrees of alimony from time to time, the facts and circumstances which influenced the court in making the allowance may be proved, and the alimony may be terminated or not according to the circumstances. "Where the decree of alimony is held to be a vested right, not subject to revision, the subsequent marriage of the di- vorced wife will not affect the decree. Where the husband has no property, the court frequently provides for the support of the wife out of his earnings by a decree containing no provision for its termination on the marriage of the wife. It may happen that both parties may marry again, in which event the former husband has 1 Olney v. Watts, 43 Ohio, 499. 2 Sammis v. Merlbury, 14 R. 1. 214 884: THE DECREE FOE ALIMONY. . [§ 933a. two to support. If his earnings are inadequate and he fails to pay the alimony, he may be thrown in jail, where he will be unable to support either of them. The supreme court of California has characterized this as " an anomalous condition of domestic affairs which requires a man ... to sup- port a legal relict, who is not only matrimonially dead to him but is perhaps married to another, who is unwilling or unable to support her." ' The difficulty in such cases may be avoided by limiting the decree for alimony by such phrases as, " until she marries again," or " so long as she re- mains unmarried." The power of our courts to make this provision is unquestioned. Such provision is not void as being in restraint of marriage.^ Under the English divorce act the court may, at its discretion, order the payment of alimony during the hfe of the wife, or so long as she re- mains unmarried.' But such clause is not added to the decree where the object of the decree is to deprive the hus- band of his interest in the wife's property and to restore her property and her own income.* § 933a. Revision of decree of alimony. — The permanent alimony of the common law was a form of separate main- tenance for the Avife. No absolute divorce was granted, but the decree was for separation. The marriage relation continued, and the whole proceeding looked forward to a reconciliation and reunion of the parties. Under such cir- cumstances the husband's duty of support remained, and the amount which he should contribute varied according to his means and the needs of the wife. In an early case it was held by Dr. Lushington that, " where there is a material alteration of circumstances, a change in the rate of alimony may be made. If the faculties are improved, the wife's 1 Spencer, In re, 83 Cal. 460, 83 wynd, 1 P. D. 39; Harrison v. Har- Cal. 110. rison, 13 P. D. 130; Hart v. Hart, 2Stillman v. Stillman, 99 111. 196. 18 Ch. D. 670; Corbett v. Corbett, sSeeListeruLister, 14P.D. 175, 13 P. D. 136, 14 P: D. 7. 15 P. D. 4, citing Sidney v. Sidney, * Gladstone v. Gladstone, 1 P. D. 4 Swab. & T. 178; Medley v. Med- 443. ley, 7 P. D. 133; Chetwynd v. Cbet- § 933a.] THE DECEEE FOE ALIMONY. 885 allowance ought to be increased; and if the husband is lajMics facuUatilms, the wife's allowance ought to be re- duced." 1 But under our statutory divorce the marriage is dissolved and the husband and wife sustain no relation towards each other. The door of reconciliation is no longer open. The alimony allowed to the wife is a sum in lieu of dower and as compensation for the ill treatment she received. The wife is a judgment creditor of the husband, and has no interest in his financial successes. If he inherits wealth, she should not be entitled to an additional allowance. If he fails in business, she will suffer with other creditors unless her claim is secured. The situation of the parties is novel to the com- mon law : the allowance to the wife is not in all respects ali- mony, and neither the rule nor the reason of the common law is applicable. The failure to make this distinction has led to much confusion in our statutes and decisions. Where the distinction has been brought to the attention of our courts, it has been held that the rule that a decree of ali- mony is subject to change at any time does not apply to decrees rendered when absolute divorces are granted.^ And 1 De Blaquiere v. De Blaquiere, 3 for a new trial has elapsed. Sam- Hag. Ec. 332. See, also, Lockrldge mis v. Medbury, 14 R. I. 214. V. Lockridge. 3 B. Mon. 538; Rees The same rule applies to a, decree V. Rees, 3 Phillim. 387 ; Kirkwall v. for monthly payments. Sampson Kirkwall, Poynter, M. & D. 235; v. Sampson, 16 R. I. 456, 16 A. 71. Neil V. Neil, 4 Hag. Ec. 373. Where the statute confers on ^Kamp V. Kamp, 59 N. Y. 213; the court the power to modify the Kerr v. Kerr, 59 How. Pr. 355 ; decree in respect to the guardian- Stratton v. Stratton, 73 Me. 481; ship, custody, support and educa- Olney v. Watts, 43 O. St. 499. But tion of the children, whenever see, cowfra, McGeer. McGee, 10 Ga. circumstances may render such 477; Rogers v. Vines, 6 Ired. 393; change necessary, but does not au- Lockridge v. Lockridge, 3 B. Mon. thorize the court to modify the 258. decree for alimony, a decree for Where the wife is awarded one- alimony in gross, payable in in- half the personalty and one-half of stalments, will not be modified, the rents of the husband's realty Mitchell v. Mitchell, 20 Kan. 665. for life, the decree is final, and, in See similar construction in Samp- the absence of statutory authority, son v. Sampson, supra. cannot be modified after the time 886 THE DECEEE FOE ALIMONY. [§ 933*. it is clear that such a decree of divorce may reserve the allowance for future consideration, and in such case the de- cree is not an adjudication of a matter which by its very terms is left open for determination.^ In 'New York, and perhaps other states, the statutes provide for a change in the amount of alimony where the' divore is from bed and board.'^ But where the statutes make no distinction the courts refuse to do so, and will revise an allowance of per- manent alimony after an absolute divorce.' The practice in the ecclesiastical courts is not to be fol- lowed in such cases. For, as noted in one case, " This allow- ance to the wife is not in fact alimony in the sense of the ecclesiastical law of England, but is more strictly an arrange- ment in lieu of a division of the estate of the parties, so as to return to the wife her just portion of that property which mutually belonged to both during the marriage, and which the labor and care of both may have equally contributed to procure and preserve. This allowance was intended to sup- ply the wife with the means of commencing life anew after her expulsion from the household of the husband, and the withdrawal of his liability for her maintenance and support, and place her above actual destitution. Such purpose could best be accomplished by making such allowance absolute and permanent." * The courts are authorized to revise and change decrees of alimony by express statutes in some of the states.' iFrieSuFries, 1 MacArthTir,391; of the property and afterwards va- Stahl V. Stahl, 13 N. Y. Supp. 855. cated the decree and entered a de- But see CuUen v. CuUen, 55 N. Y. cree for alimony. The first decree Superior Ct. 346; Beck v. Beck, 43 was erroneous, and the court had N. J. Eq. 668. a right to correct the error under 2 Kerr v. Kerr, 9 Daly, 517 ; Sim- the provisions of the code for modi- onds V. Simonds, 10 N. Y. Supp. fying decrees after term, but the 606; Strauss v. Strauss, 14 N. Y. statute relating to the modification Supp. 671. See, distinction in Mil- of decrees of alimony was cited and deberger v. Mildeberger, 13 Daly, relied upon. 195- * Smith v. Smith, 45 Ala. 364. SBauman v. Bauman, 18 Ark. sgtillman u Stillman.99 Bl. 196; 330. In Ellis u Ellis, 13 Neb. 91, Wheeler u Wheeler, 18 Bl. 39; Rob- the lower court granted a division bins v. Robbins, 101 111. 416; Call v. § 933a.J THE DECEEE FOE ALIMONY. 887 Eut it seems that such statutes refer to alimony proper, where it is made payable in instalments for the maintenance •of the wife according to the practice of the ecclesiastical courts. Such alimony must be varied according to the -changed circumstances of the parties, the diminished means of the husband, or the increased needs of the wife. At the common law the parties were not absolutely divorced, and the husband's liability could be adjusted by the courts while the parties were separated. This Avas the reason of the rule that the amount of alimony might be increased or dimin- ished. But the rule has no application to alimony in the form of a gross sum or a division of the property. In such case it is held that the gross sum is in lieu of all claims for alimony. " Had it been a yearly sum," suggested one court, " then the alteration of the circumstances of the parties might, in many cases, be such as would require its reduction or increase in amount. But where a gross sum is decreed and received for or in satisfaction, or in lieu of alimony, it must be held to be in full discharge and satisfaction of all claim for future support of the wife. When they are di- vorced, they from that time forward cease to have claims on each other, and all rights and duties are at an end. Hav- ing discharged the duty of her support, by paying to his former wife the gross sum decreed in lieu of alimony, she ceased to have any more claim on her former husband for her support than she has on any other man in the commu- nity." ' "Where a division of property is authorized by stat- ute, it is held that the statutes providing for the modification of decrees of alimony do not apply, as the decree is a final settlement.^ Call, 65 Mo. 407; Sheaf e v. Sheaf e, 40 Wis. 462; Thomas v. Thomas, 41 36 N. H. 155; Perkins v. Perkins, 13 Wis. 329; Blake v. Blake, 75 Wis. Mich. 456 ; Fisher v. Fisher, 32 la. 20 ; 339. •Shaw V. McHenry, 52 la. 182; Ely the ' Plaster v. Plaster, 47 111. 290, ap- V. Blythe, 25 la. 266 ; Andrews v. proved in Semrow v. Semrow, 23 Andrews, 15 la. 423; O'Hagan v. Minn. 214. O'Hagan, 4 la. 509; Weld u Weld, 2 Bacon v. Bacon, 43 Wis. 197; 28 Minn. 33; Hopkins v. Hopkins, Webster v. Webster, 64 Wis. 438. 888 THE DECREE FOE ALIMONY. [§ 934. The terms of the decree may exclude any modification.^ But it is clear that the decree cannot prohibit such change^ where the statute provides otherwise.^ In all cases the de- cree for alimony may be vacated and set aside or modified as other judgments and decrees, on account of fraud and mistake.' § 934:. When permanent alimony will be revised. — In those states where the decree for alimony may be revised it is held that no change will be made unless it is shown that the wife's needs or the husband's faculties have increased or diminished. The decree is res judicata as to all matters existing at the time it was rendered. IS'ew facts occurring since the decree must be shown.* The estoppel extends ta all matters properly before the court which the parties might have litiffated.'^ The new facts which wiU influence the court in increasing or decreasing the allowance are necessarily those which affect the pecuniary condition of the parties.* The former The same construction is given to Wilde v. Wilde, 36 la. 319; Raid u. the English statute. Gladstone v. Eeid, 74 la. 681; White v. White, Gladstone, 1 P. D. 443. 75 la. 318; Strauss v. Strauss, 14 N. iHyde V. Hyde, 4 Swab. & T. 80. Y. Supp. 671; Semrow v. Semrow, 2 Campbell v. Campbell, 87 Wis. 23 Minn. 214; Fisher v. Fisher, 33: 206; CoaduCoad,41 Wis.23;Guen- la. 20;'Olney v. Watjts, 43 O. St.. ther V. Jacobs, 44 Wis. 354 499; Buckminster v. Buckminster, 3 Sinter v. Senter, 70 Cal. 619; 38 Vt. 248; Perkins v. Perkins, 12 Gray v. Gray, 83 Mo. 106; Speck v. Mich. 456; Weld v. Weld, 28 Minn. Dausman, 7 Mo. Ap. 165; Moon v. 33; De Blaquiere u De Blaquiere, 3 Baum, 58 Ind. 194. In Perkins v. Hag. Ec. 322; Cox v. Cox, 3 Ad. Ec. Perkins, 13 Mich. 456, the court re- 276; Vert v. Vert, 3 S. Dak. 619, 54 fused to modify a decree for ali- N. W. 665; Louis v. Louis, 1 P. & mony where the husband was not M. 330. aware, when the decree was ren- s Petersine v. Thomas, 38 0. St. dered, that alitoony in gross was 596; Harmar v. Harmar, D. & S. not a bar to the wife's right of 383. dower. If the lower court had over- ^ gge form of decree revising ali- looked the fact that the wife re- mony in Dawson v. Dawson, 110- tained her right of dower on di- IlL 279. See form of application vorce, it would seem to be error to to modify decree for alimony in refuse to modify the decree. Olney v. Watts, 43 Ohio St. 499. *Fishli V. Fishli, 1 Biackf. 360; § 934.] THE DECREE FOE ALIMONY. 88& wife is no longer such, but is a mere judgment creditor of the husband ; consequently her misconduct will not affect the allowance.^ Her adultery will not be a cause for terminat- ing the alimony ; as she can commit no offense against a marriage which has been dissolved.''* It is said that " the di- vorce puts the parties in the position of strangers to each other as to their moral conduct thereafter. Her claim on him under the ordinary order of alimony is merely pecun- iary, not to be affected by her vice or virtue, any more than if the recurring sums for alimony were instalments upon a land purchase." ' Another good reason for refusing to disturb the decree on account of the subsequent miscon- duct of the wife is that the allowance made by the court may have been a restitution of property which the wife had contributed to the common fund, or which was the result of their joint earnings and economy.* It is held that the wife cannot recover alimony while she is supported by a para- mour ; but she may recover after such support ceased.' The death of a child or the ability of the children to support themselves may be a cause for changing the allowance, as such events relieve the wife of their support.^ Generally the application to change the allowance is based upon the inability of the husband to make the required payments.'^ It is held that an increase of the husband's property by in- heritance will justify an increase of the allowance.^ 1 But if the divorce is from bed * Cole v. Cole, 142 111. 19. and board the wife still owes alle- 5 Holt v. Holt, 1 P. & M. 610. giance to the husband, and her ^ Thurston v. Thurston, 38 111. adultery will justify the court in Ap. 464; Senirow v. Semrow, 33 vacating the decree of alimony. Minn. 214. Severn v. Severn, 14 Grant (U. C), ' Fisher v. Fisher, 33 la. 20; Bar- 150. rett V. Barrett, 41 N. J. Eq. 139; 2 Forrest v. Forrest, 3 Bosw. 661, Holway v. Hoi way, 39 Grant Ch. 8 Bosw. 640, 9 Bosw. 686, 35 N. Y. 41 ; Halstead v. Halstead, 5 Duer, 501; Cross v. Cross, 63 N. H. 444; 659; De Blaquiere u De Blaquiere, Alexander v. Alexander, 20 D. C. 3 Hag. Ec. 333. 553;Begbiei;.Begbie,3Halst.Ch.98. ^Mildeberger v. Mildeberger, 13 3 Cole V. Cole, 35 111. Ap. 544. See, Daly, 195. also, Bradley v. Bradley, 7 P. D. 337. In revising a decree for alimony €90 THE DECREE FOE ALIMONY. [§ 935. "Where the alimony is not in gross and does not appear to be in settlement of property rights or in lieu of dower, the court may terminate the allowance on the death of the husband.^ § 935. Alimonj where there is no personal service. — Where there is no personal service and the defendant does not appear, the suit is based upon constructive service — either service by publication or personal service in another state. In such case the proceeding is said to be in rem so far as it affects the marital status of the parties. The jurisdiction is over the status of the parties only ; and so far as the decree operates upon such status it is valid. Eut so far as the decree awards alimony and costs, or the maintenance of children, it is said to be in personam, and void for want of personal service within the state.^ It seems that under the present condition of our law the wife is without remedy where the husband leaves his property and goes to another state. She may have the marriage dissolved by a decree in rem, but in such action she cannot have a valid decree of alimony or any relief against his property." If she follows her husband to obtain divorce where he resides, he can remove to an- other state before she can acquire a domicile and commence her suit. Under the rulings of many of our states the hus- band may leave his wife and property, go to another state and obtain a decree of divorce without personal service or actual notice to the wife, and such decree is a bar to her right to alimony and dower.* Where a decree for alimony was held void because rendered without personal service the court may award a gross sum Lythe v. Lythe, 48 Ind. 300; Mid- in lien of alimony in instalments, die worth v. McDowell, 49 Ind. 386; and may make such sum a lien on Beard v. Beard, 21 Ind. 331; Kline property which secured the former v. Kline, 57 la. 386; Madden v. decree. King v. Miller, 10 Wash. Fielding, 19 La. An. 505; Ellison v. 274, 38 P. 1020. Martin, 53 Mo. 575; Eigney v. Rig- iLennahan v. O'Keefe, 107 111. ney, 137 N. Y. 408, 28 N. E. 405; ^-*^- Black on Judgments, § 933. 2 Bunnell v. Bunnell, 25 Fed. 214; 3 Bunnell v. Bunnell', 35 Fed. 214 Prosser v. Warner, 47 Vt. 667; < Gould v. Crow, 51 Mo. 200. § 936.] THE DECREE FOE ALIMONY. 891 upon the husband, it was suggested that if the wife " Avere allowed to proceed as an attaching credito-r when her bill is filed, the suit might partake of the nature of a proceeding in rem, and a decree for alimony be enforced against the property- itself." ^ Where a petition for divorce describes the husband's property, and asks that his conveyance to others be set aside and the property made subject to a de- cree for alimon}', the fact that a lis pendens was filed will not create a lien upon the property, or bring it within the jurisdiction of the court so as to render the proceeding in rem? The most satisfactory remedy is an attachment against the husband's property to satisfy the decree of ali- mony. Such remedy exists in some of the states.' In some states this remedy may be had under the general provisions of the code.^ Where the decree for alimony is void because rendered without personal service, it is held that in a sup- plemental proceeding, in the nature of a creditor's bill against the husband's property, the same court may render a valid decree for alimony if the husband appears to object to the vahdity of the proceedings.* § 936. Alimony after divorce. — It is an open question whether alimony can be allowed after the marriage relation is dissolved by divorce. The question is clearly one of in- terpretation of the statute, and no aid can be derived from iBunnellu Bunnell, 25 Fed. 314, 884. The code (sec. 41) provides citing on this proposition. Cooper that service by publication can V. Reynolds, 10 Wall. 308. only be had in "cases of attach- 2 Bunnell v. Bunnell, 25 Fed. 214 ment, foreclosure, claim and de- 3 See statutes in Daniels v. Lind- livery, divorce or other proceed- ley, 44 la. 567; Daniels v. Morris, ings where specific property is to 54 la. 369; Downs v. Flanders, 150 be affected, or where the procedure Mass. 93. is such as is known as a proceed- * In Colorado the wife may re- ing in rem." cover alimony without divorce 5 Johnson v. Johnson, 31 Neb. and in the same action have a 385, 47 N. W. 1115. For direct pro- fraudulent conveyance set aside ceeding for alimony upon personal and the real estate adjudged sub- service in another state, see Thurs- ject to a lien for the alimony, ton v. Thurston (Minn.), 59 N. W. Hanscom v. Hanscom (Colo.), 39 P. 1017. 892 THE DECEEE FOE ALIMONY. [§ 936. the common law, since the power both to dissolve the mar- riage and grant the wife a permanent maintenance after an absolute divorce is derived from statute in all the states and in England. These statutes are similar in their phraseology, and a fair interpretation would seem to be that they con- template an adjudication of all questions of alimony by the court which grants the divorce and at the same time. It is conceded that the court may, in a decree dissolving the marriage, reserve the power' to grant alimony at a later date.^ And the statute may by direct terms permit a decree for alimony after divorce, as in New Hampshire, where the court has power " to revise and modify any order made re- specting alimony, and to make such new orders as may be necessary," etc.^ Or the terms of the statute often indicate , that 'the decree may be rendered " upon a decree of divorce " or "when a divorce is granted."' But where the decree does not reserve the power to grant alimony, or such power is not given by statute, it is clear that a decree of divorce without alimony is an adjudication against the right of the wife, for the right to alimony should have been determined when the divorce was granted.* 1 Ambrose, Ex parte, 73 Cal. 398. ^ Downey v. Downey (Ala.), 1$ Permanent alimony cannot be So. 413. granted until the court had deter Mr. Bishop holds that alimony mined that a divorce will be ren- may be granted after a decree of dered. To grant alimony before divorce has heen rendered and the ,the final hearing is error. John- term of court has closed. "Divorce son V. Johnson (iCan.), 39 P. 7'3.j; litigation," said he, "is in its nature "Woods V. Waddle, 44 O. St. 449; exceptional, rendering it, as to ali- Cooledge v. Cooledge, 1 Barb. Ch. niony, or the support, of the wife, 77; Lake v. King, 16 Nev. 21.5; never at an end during the joint Galusha v. Galusha, 138 N. Y. 373^ lives of the parties. Aiid such was 33 N. E. 1063. But see contra, Cul- the law which traveled to this len V. CuUen, .55 N. Y. Supr. 346. country from England to become ^Ela V. Ela, 63 N. H. 116; Sheafe common law here. For the course V. Sheafe, 36 N. H. 155; Sheafe v. in the ecclesiastical courts, fol- Laighton, 36 N. H. 240; Folsom v. lowed afterward by the divorce Eolsom, 55 N. H. 78. court, was not only to receive ap- 3 See Prescott v. Prescott, 59 Me. plications to vary the alimony at lis. times and terms of court however I 936.] THE DECREE FOE ALIMONY. 893 If the decree expressly reserves the question of alimony for further consideration or for further order or decree, it is clear that the decree is not an adjudication of the question. Application for permanent alimony may be made within any reasonable time after the divorce is granted.' The power to revise or modify a judgment relating to ali- mony would seem to imply the power to grant a new hear- ing, and to make a new decree in conformity to the changed condition of the parties. If the decree of divorce fixes some amount of alimony, that amount may be changed. If the decree was silent as to alimony, further evidence may be heard, and the decree may be revised. The power to revise exists in either case. " The power of the court to award remote after the granting of the diTorce; but if the question of ali- mony was not passed upon before the divorce sentence was entered and the court adjourned, to enter- tain in the same cause an original petition for it at any subsequent time or term. In accordance with which view, it has been in some of our courts laid down that though the common practice is to ask for divorce and alimony in one bill, and have an award of both at one time, a party need not proceed thus; but if the question of ali- mony is not determined in the di- . vorce suit, the wife may afterward sue for it by separate bill, either in the same court or any other of competent jurisdiction,'' — citing the following authorities, some of which do not sustain him: Shot- well V. ShotweU, Sm. & M. Ch. 51; Lawson v. ShotweU, 27 Miss. 680; Crugom V. Crugom, 64 Wis. 253; also Lyon v. Lypn, 21 Conn. 185; McKarracher i v. McKarracher, 3 Yeates, 56; Jordan v. Jordan, 53 Mich. 550; Ellis v. Ellis, 13 Neb. 91. No distinction is made by him be- tween the two kinds of divorce. The common law applies to per- manent alimony after a decree a mensa, but it seems that it does not apply to the permanent main- tenance rendered after the statu- tory divorce from the bonds of matrimony. See Erkenbrach i\ Erkenbrach, 96 N. Y. 456; Eomaine V. Chauncey, 139 N. Y. 566. 1 A decree of absolute divorce re- served the question of permanent alimony " for further order or de- cree herein,"' and the wife made no application for alimony until after the death of the husband, some five years after the decree of divorce was rendered. The exec- utor imder the will resisted the wife's application for alimony out of the estate. It was held that the wife could recover alimony under such circumstances, as the subse- quent death of the husband would not oust the court of jurisdiction to make such order. Seilby v. Ing- ham (Mich.), 63 N. W. 538. 894: THE DECEEE FOE ALIMONY. [§ 936, alimony to a wife in a divorce suit does not depend on the fact that some alimony was awarded at the time the judg- ment for divorce was granted. The fact that no alunony was then awarded by the court is no bar to its being after- ward awarded." ^ But where the wife has applied for ali- mony, and the decree of divorce is silent as to her right ta alimony, the presumption is that her application was re- fused, and the decree is an adjudication that she has no right to alimony.^ Such decree cannot be modified by allowing alimony. The English divorce act ' contains a provision similar to th^ provisions of our statutes relating to alimony after an absolute divorce. It provides that " the court may, if it shall think fit, 07i any such decree (of absolute divorce) order that the husband shall, to the satisfaction of the court, se- cure to the wife such gross sum of money," etc. Under this statute it is held that the court may make an order for per- manent maintenance after an absolute divorce has been pro- nounced, if the application is made without unreasonable delay.* The decree of divorce, whether with or without alimony,. 1 Cook V. Cook, 56 Wis. 195. The silent as to alimony, it was held Wisconsin statute provides that that the court might award it on "after a judgment providing for tlie wife's application five year& alimony, or other allowance for afterward. Crugom v. Crugom, 64 the wife or children, . . . the Wis. 353. court may from time to time, on For Missouri statute relating to the petition of either of the par- revision, see Anderson v. Ander- ties, revise and alter such judg- son, 55 Mo. Ap. 368. nient, . . . and may make any ^ Howell v. Howell, f04 Cal. 45, judgment respecting any of the 37 P. 770. said matters which such court i ' 20 and 21 Vict, might have made in the original ac- * Bradley v. Bradley, 3 P. D. 47, tion." It is held that tliis provision overruling Vicars v. Vicars, 29 L. J. authorizes the granting of alimony (P. & M.) 20. See, also, Winston v. where a divorce was obtained in Winston, 2 Swab. & T. 346; Charles another state. See dissenting opin- v. Charles, 1 P. & M. 360 ; Sidney v. ion of Taylor, J., in Cook v. Cook, Sidney, 1 P. & M. 78, overruled 36 56 Wis. 195. And where the hus- L. J. (P. & M.) 74; CoveU v. Covell, band obtained a decree which was 3 P. & M. 411. § 936.] THE DECREE FOE ALIMONY. 895- sliould be governed by the ordinary rules of law which are applied to other judgments. If the wife appeared in the action and a decree was rendered without alimony, the law will presume that every question which might have been involved in the action was litigated, and in effect a decree without alimony is the same as a decree denying alimony.' Such decree may be revised by showing that it was obtained by fraud, or that some mistake was made, or that the hus- band concealed his property .^ Under the principle of res judicata it would seem that if the wife had no opportunity to be heard, and could make no application for alimony, and the court did not pass upon the question, or had no jurisdic- tion to award alimony, the ex parte decree of divorce should not be a bar to her subsequent proceedings for alimony.-' It may be urged that the decree of divorce dissolved the- marriage relation and there is no longer a husband and wife and no liability on the part of the man to support his former wife. But in answer to this it may be said that when a man obtains a divorce he thereupon becomes liable for per- manent maintenance of his former wife as fixed by the court. If the court granting the divorce does not fix the amount of his liability, has he escaped all liability ? Are the rights of the wife to be determined without her ' day in court?' What remedy has she if an ex parte divorce is a bar to a subsequent application for alimony ? * iKamp V, Kamp, 59 N. Y. 312; time to permit her to defend, and Erkenbach v. Erkenbach, 96 N. Y. the decree made no provision for 456; Wilde v. Wilde, 36 la. 319; alimony, the wife could obtain re- Jordan V. Jordan, 53 Mich. 550 ; lief by an original suit, but not by Lawson v. Shotwell, 27 Miss. 630, proceeding for review. Henderson overruling Shotwell v. Sliotwell, r. Henderson, 64 Me. 419. Sm. & M. Ch. 51. " See contra, Roe v. Roe, 53 Kan, 2 Wilde V. Wilde, 36 la. 319; 724, 35 P. 808. Blythe u BIythe, 35 la. 266. But * The statute of Ohio permits her see, contra, Johnson v. Johnson, 13 to obtain alimony although the Daly, 333, 65 How. Pr. 517. In parties are divorced by an ex parte Maine it is held that where the decree. In Cox u Cox, 19 0. St. husband obtained a divorce with- 503, the wife was allowed a decree out actual notice to the wife in for alimony although the husband 896 THE DECEEE FOE ALIMONY. [§ 936. The ex parte decree of divorce is in no sense an adjudica- tion of her right to alimony. The court had no jurisdiction over the wife or her property rights. The jurisdiction of the court was limited to the res^ the staUis of the husband, and so far is valid as a dissolution of the marriage. As said by the Alabama court, " it certainly cannot affect the rights of the complainant, except her right in the husband as a husband. . . . But it does not settle her right to ali- mony; it does not settle her right to dower in his lands, and her statutory right to distribution of his property in this state, in the event she should survive him, nor any other interest of a pecuniary character she may have against him." ' In conformity with the above doctrine it is held in Min- nesota that " The question of alimony is not res adjudieata by reason of a judgment of divorce in the proceeding in rem. . . . That judgment establishes nothing except that the marriage relation has been condemned and de- stroyed by a judgment of divorce ; all other questions are had obtained a divorce in Indiana, sequently acquired should not be Where a wife obtained an ex parte considered. Van Orsdal v. Van divorce a vinculo in Tennessee Orsdal, 67 la. 35. upon constructive service, and her i Turner v. Turner, 44 Ala. 437, application for alimony vcas dis- citing Webster v. Eeid, 11 How. missed without prejudice to enable (U. S.) 437, 460 ; Nations v. Johnson, her to sue for it elsewhere, it was 34 How. (U. S.) 195; Boswell's Les- held that she might' recover ali- see w Otis, 9 How. (U. S.) 336; Mills mony in a subsequent action in v. Duryee, 7 Cranch, 481 ; D'Arcey Ohio. Woods V. Waddle, 44 O. St. v. Ketohum, 11 How. (U. S.) 165; 449. It is held that an ex jaarte de- McElmoyle v. Cohen, 18 Pet. 313, cree while it changes the status of 330. the parties does not' affect their ^xhurston v. Thurston (Minn.), property rights. Doer v. Forsythe, 59 N. W. 1017, approving Turner v. 50 O. St. 736. In Iowa it is ad- Turner, 44 Ala. 437. In this case the niitted that an ex parte divorce husband, in contemplation of a suit will not bar an application for ali- for divorce, induced the wife to join mony; but the alimony granted with him in conveying his real es- must be with reference to the hus- tate to one of the defendants to be band's property at the time the de- held in trust for the husband and cree was rendered. Property sub- thus defeat the wife's claim for § 936.] THE DECREE FOE ALIMONY. 897. Where the husband leaves the wife and goes to another state, he cannot escape his liability for alimony by obtaining an ex parte decree of divorce on constructive service. To give the decree this effect would work a fraud upon the pe- -cuniary rights of the parties. The wife may, within a rea- sonable time, recover alimony in a subsequent proceeding without vacating the ex parte decree.^ She may bring the action in the state where the husband obtained the decree.^ Or she may recover the alimony in the state where she re- sides.' The doctrine that an ex parte decree is not a bar to a sub- sequent proceeding for alimony is denied in Kansas. The wife brought -an action for divorce in Kansas, but before she obtained a decree the husband obtained a valid decree of di- vorce in Colorado on service by publication. It was held that this decree was a final adjudication not only of the ■status of the parties but also of th^ pt-operty rights of the wife.* The doctrine of res adjudioata could not make such ■decree final as to property rights, for the reason that such rights could not have been litigated in the proceeding in, .rem in Colorado. That action could proceed no farther than to fix the status of the husband. Alimony. The defendant pleaded Thurston v. Thurston (Minn.), 59 ■a, decree of divorce obtained by the N. W. 1017. Under the peculiar husband in Washington, and on statuteof Ohio, when such alimony the trial objected to the jurisdic- is granted, the allowance is based tion of the court to grant alimony upon the value of the husband's because the personal service on the property at the time of the wife's husband in Washington was, in application, and not at the time he effect, only constructive, and not obtained a decree. Cox v. Cox, 20 justifying a decree in personam. O. St. 439. But it was held that the decree was * Eoe v. Roe, 53 Kan. 774, 35 P. not a bar to an action for alimony, 808. Thfe decision is influenced by -and the defect of parties defendant the delay of the wife and also by was waived by failure to raise the the presumption that the laws of objection before trial. Colorado are the same as Kansas, 1 Cochran v. Cochran (Neb.), 60 which provide that a decree of U. W. 942. divorce shall be a final adjudica- 2 Id. ; Graves v. Graves, 36 la. 810. tion of property rights. ■* Turner v. Turner, 44 Ala. 437; 57 898 THE DECREE FOE ALIMOSTT. [§ 937:, The fact that the relation of husband and wife no longer exists will not prevent the action for alimony. A legisla- tive divorce dissolves the marriage but does not bar the ac- tion for alimony .^ This is denied, however, because it is said that alimony is always an incident of divorce and cannot be' granted on a subsequent application.^ It is now held in most of the states that the wife may recover alimony with- out divorce.' § 937. When alimony is exempt. — When the decree for alimony is payable in instalments, and is not a division of the property or a decree for a gross sum, it is intended that the alimony shall be allowed to the wife for her support. Duriug the marriage the husband is bound to support the wife, and when the marriage is dissolved by divorce the hus- band is not relieved from such obligation, but it is continued by the decree for alimony. Such decree is not strictly a debt, but is a continuing duty of support, the terms of which are expressed in the decree.* It has been held that this special fund for the wife's support is her own separate prop- erty, and is subject to execution and garnishment as other property. The reason assigned was that at common law all the debtor's property, except necessary wearing apparel^ might be taken to pay the claims of creditors, and that all exceptions to this general rule must be created by statute. Alimony, or the separate maintenance of a married woman,, is not exempt by statute, and therefore may be applied to the payment of judgments against the wife.^ While it may 1 Biohardson v. WUson, 8 Yerg. 44 la. 567; Burr v. Burr, 7 Hill, 207 ^ 67. White v. Bates (Tenn.), 15 S. W. 651. 2 Bowman v. Worthington, 24 ^ Stevenson v. Stevenson, 34 Hun, Ark. 523. 157. The separate maintenance in 8 See reasoning in Cochran v. this case was granted upon a de- Coohran, supra. cree of divorce "from bed and * Jordan v. Westerman, 62 Mich, board forever," and it does not ap- 170; Guenther v. Jacobs, 44 Wis. pear that the judgments against 354; Grain i;. Cavana, 62 Barb. 109; the wife were fornecessaries. The Wallingsf ord v. Wallingsford, 6 court also held that her alimony Har. & J. 485; Daniels v, Lindley, was not exempt as property held in trust for the wife. § 937.] THE DECREE FOE ALIMONY. 899 be true that alimony is not exempt by statute, this decision is clearly wrong, as it overlooked other reasons which re- quire that the separate maintenance of the wife be held exempt from her creditors. One reason for holding such alimony ^exempt is that public policy requires that the fund for her support should be applied to that specific purpose ; otherwise she may become dependent upon public support.^ This fund is in some respects like the salary of certain offi- cers of the army and navy, which are held exempt on the ground of public policy in order that they may receive the support necessary to render them capable to perform their duties.^ And the fund is protected from her creditors by the same public policy which exempts policies of insurance in favor of the wife on the life of the husband.' Another sufficient reason for holding the alimony exempt is that such fund is created by equity for a special purpose, and is therefore entitled to the protection of equity against the claims of general creditors.* It follows, therefore, that as. such alimony is exempt on the ground of public policy as a special fund for the support of the wife, if a tradesman sells the wife necessaries for her support his claim is not within the reason of the rule, but may be satisfied from such spe- cial fund.' The special character of alimony renders it exempt from any set-off pleaded by the husband unless it be a claim for necessaries. He cannot purchase a judgment or pay a judgment as surety, and have the same declared a set-off against the instalments of alimony then due." It is doubtful whether aU kinds of alimony have the ex- emption which is conceded to alimony payable in instal- ments. Where the allowance is iu fact a restoration to the 1 Romaine v. Chauncey, 60 Hun, ' Eomaine v. Chauncey, 129 N. Y. 477, disapproving Stevenson v. Ste- 566. venson, 34 Hun, 157. *Id. 2 Id. ; In re Eobinson, 37 Ch. D. ^ xhis point is not adjudicated. 160; Reiilenstein v. Hooper, 36 U, The doctrine is asserted in Ro- C. Q. B. 295. maine v. Chauncey, 60 Hun, 477. s Locke V. Locke, 71 Hun, 368. 900 THE DECKBB FOE ALIMONY. [§ 938. wife of her property, or a division of property acquired by joint effort, or a gross sum in lieu of alimony, the allow- ance in such case is property that vests ^t once in the wife, and she may assign and dispose of the same as her separate property. Such allowances are not strictly for the main- tenance of the wife, are not special funds subject to the re- vision and control of the courts, and ai'e not therefore within the reasons of the above rule.^ § 938. The wife as a creditor of the husband.— The wife is a special creditor of the husband. Public poHoy requires that he should support her in order that she may not become dependent upon the state. His obligation to support is a paramount duty and a prior claim upon his re- sources. A discharge in bankruptcy does not, therefore, relieve him from the pajanent of alimony.^ The claims of a creditor are not prior to those of the wife unless they ex- isted before her suit for alimony, and can be satisfied out of property not exempt.' "When the husband makes an assign- ment she does not pro rate with other creditors.* The public policy which protects the homestead and the earnings of the husband from the avarice of the ordinary creditor does not exempt them from the special claims of the wife.^ Her iSee Kempster u Evans, 81 Wis. ^ Bates v. Bates, 74 Ga. 105; Ma- 247, 51 N. W. 327. honey v. Mahoney (Minn.), 01 N. ^Ex parte Fryer, 17 Q. B. 718; W. 334; Menzie v. Anderson, 65 Ex parte Otway, 58 L. T. (N. S.) Ind. 239; Keyes v. Scanlon, 63 "Wis. 885; Stones v. Cooke, 7 Sim. 821-, 345; Luthe v. Luthe, 12 Colo. 421; Prescott V. Prescott, 30 L. T. (N. S.) Barker v. Dayton, 38 Wis. 367; In 331; Newhouse v. C, 5 Whart. 83; re Spencer, 82 CaL 110; Wetmore Shine v. Shine, 1893 Probate, 389; v. Wetmore, 39 N. Y. Supp. 440; Linton v. Linton, 15 Q. B. D. 339; s. C, 8 Misc. 51; McGrady v. Mo- Dickens V. Dickens, 30 L. J. Mat. Grady, 48 Mo. Ap. 668. See contra, Cas. 183, 3 Swab. & T. 645; In re as to homestead, Byers v. Byers, 21 Henderson, 20 Q. B. D. 509. But la. 368; Biffle v. Pullman^ 114 Mo. see Beach v. Beach, 29 Hun, 181; 50, 21 S. W. 450; Dent v. Dent, 1 P. Texas' Case, 1 Ashm. 175. & M. 366. But see Sansom v- San- 3MoGee v. McGee, 3 Sneed, 221. som, 4 P. D. 69; Birch v. Birch, 8 * Abraham v. Abraham, 19 Out. P. D. 163. 356. § 938.] THE DECEEE FOE ALIMONY. 901 claim may be secured by the attachment of the husband's property.^ The wife as a special creditor of the husband is within the protection of the statute against fraudulent conveyances and may proceed according to its provisions.^ On a proper show- ing of the fraud, the conveyance wiU be set aside and the property of the" husband will be declared subject to the de- cree for maintenance or alimony.^ A chattel mortgage may be set aside when given to defeat a decree of alimony, and personal property may be made subject to a lien for ali- mony.'' The conveyance will be sustained as in other cases, Frakes v. Brown, 2 Blackf. 1 See statutes in Daniels v. Lind- ley, 44 la. 567; Daniels v. Morris, 54 la. 369; Twing v. O'Mera, 59 la. 326; Downs v. Flanders, 150 Mass. 92; Sewall v. Sewall, 139 Mass. 157; Sewall V. Sewall, 130 Mass. 201; North V. North, 39 Mich. 67; Ains- woi-th V. Ains worth, 37 Ga. 627; Farr v. Buckner, 32 Ind. 382; Beck- neU V. Becknell, 110 Ind. 42; Harsh- berger v. Harshberger, 26 la. 503; KeUer v. Keller (Ind.), 38 N. E. 337. The court may order funds held in trust for the husband paid to the wife. Thompson v. Thompson, 52 Hun, 456. The husband's wages are subject to garnishment. Bates V. Bates, 74 Ga. 105. ^ Livermore v. Boutelle, 77 Mass. (11 Gray), 217; Chase v. Chase, 105 Mass. 385; Bailey v. Bailey, 61 Me. 361; Plunkett v. Plunkett, 114 Ind. 484; Wetmore v. Wetmore, 5 Or. 469; Lott v. Kaiser, 61 Tex. 665; Morrison v. Morrison, 49 N. H. 69; Turner v. Turner, 44 Ala. 438; Boils V. Boils, 41 Tenn. (1 Coldw.) 284; Brooks V. Caughran, 40 Tenn. 464; Bouslough V. Bouslough, 68 Pa. 495; Carithers v. Venable, 52 Ga. 389; Feighley v. Feighley, 7 Md. 538; 295. "Damon u. Damon, 28 Wis. 510; Draper v. Draper, 68 IlL 17; Twell V. Twell, 6 Mont. 19, and cases cited; Barker v. Dayton, 28 Wis. 368; Varney v. Varney, 54 Wis. 422; Foster v. Foster, 56 Vt. 540; Boog V. Boog, 78 la. 524; Pickett v. Garri- son, 76 la. 347; Springfield Ins. Co. V. Peck, 102 111. 265; Atkins v. At- kins, 18 Neb. 474; Barrett u Barrett, 5 Or. 411; Odom v. Odom, 36 Ga. 286; Janvxin v. Janvrin, 60 N. H. 169; Janvrin v. Curtis, 62 N. H. 312; Tyler v. Tyler, 126 la 525; Foster V. Foster, 56 Vt. 540; Green v. Adams, 59 Vt. 602, 10 A. 742; John- son V. Johnson (Ky.), 2 S. W. 487; Gregory v. Fillbeck, 12 Col. 379; Eeeg«. Burnham, 55 Mich. 39; Way V. Way, 67 Wis. 662; Jenny v.- Jenny, 24 Vt. 324; Jiggetts v. Jig- gets, 40 Miss. 718; Nix v. Nix, 57 Tenn. (10 Heisk.) 546; Dugan- v. Trisler, 69 Ind. 553 ; Stuart v. Stuart, 123 Mass. 370; Dutton v. Jackson, 2 Del. Ch. 86; Prouty v. Prouty, 4 Wash. 174; Scott v. Magloughlin, 133 111. 33, 24 N. E. 1030. * Gardenhire v. Gardenhire (Okl.), 37 P. 8l3. m-2 THE DECEEK FOE ALIMONY. [§ 938. if made to one who purchases in good faith and without in- tent to defraud the wife.^ A conveyance of real estate by both husband and wife to a minor child several years before the divorce suit was com- menced wiU be sustained and wi],l not be set aside to allow the wife alimony.^ The wife may, in the suit for divorce, restrain him from conveying his property to defeat the order for alimony which may be rendered.' Such injunction must continue until the further order of the court, and should terminate when the order for alimony is entered and pro- visions are made to secure its payment.* When the husband leaves the state to avoid the payment of alimony the court may apply the income of a trust fund payable to him to the payment of the decree.^ Where the petition specifically de- scribes the husband's real estate, the proceedings are con- structive notice to others of the wife's claim.' But in an ordinary suit for divorce and alimony the doctrine of Us 1 Barrow v. Barrow, 18 Ind. 345 Metzler v. Metzler, 99 Ind. 384 Halleman v. Halleman, 65 Ga. 476 Lamar v. Jennings, 69 Ga. 393 Fields V. Fields, 3 Wash. 441, 37 P. 367; Faris v. Goins, 13 S. W. 3. 2 Bruner v. Bruner, 115 111. 40. SBusenbark v. Busenbark, 33 Kan. 573; Boils v. Boils, 41 Tenn. (1 Coldw.) 384; Springfield Inv. Co. V. Peck, 103 IIL 365; Eetnington v. Supr. Court of San Francisco, 69 CaL 633, 11 P. 253; Frakes v. Brown, 3 Blackf. 394; Gray Bros. v. Gray, 65 Ga. 193; Wharton v. Wharton, 57 la. 696; Wilson v. Wilson, Wright (Ohio), 139; Edwards v. Edwards, Wright, 308; Questel v. Questel, Wright, 493; Johnson v. Johnson, Wright, 454; Bascomb V. Bascomb, Wright, 633; Eicketts V. Ricketts, 4 Gill, 105; Anshutz v. Anshutz, 16 N. J. Eq. 163; Johnson V. Johnson, 59 Ga. 613; Eoseu Rose, 11 Paige Ch. 166; Vanzant v. Van- zant, 33 lU. 536. See contra, New- ton V. Newton, 11 P. D. 11; Fein v. Fein, 8 Wyoming, 161, 13 P. 79; Vincent v. Parker, 7 Paige, 65; Nor- ris V. Norris, 37 Ala. 519; Uhl v. Irwin (Okl.), 41 P. 376; Irwta v. Ir- win (Okl.), 37 P. 548. 4 Draper v. Draper, 68 111. 17; Erissman v. Erissman, 35 111. 136. 5 Wetmore v. Wetmore, 8 Misc. 51. eSapp V. Wightman, 103 111. 150; Tolertonu Willard, 30 0. St. 579; Daniels v. Hodges, 87 N. C. 97; Wil- kinson V. Elliott, 43 Kan. 590, 33 P. 614; Gilmore v. Gilmore, 5 Jones' Eq. 284; Isler v. Brown, 66 N. C. 556; Tabb u Williams, 4 Jones' Eq. 353; Berg v. Ingalls, 79 Tex. 533, 15 S. W. 579; Almond v. Almond, 4 Randolph (Va.), 663; Moore v. Moore, 59 Tex. 54 ■§ 939.] THE DECEEE FOE ALIMONY. '903 pendens does not apply.^ The decree for alimony, however, is a judgment, and is considered as having the same effect as other judgments for the payment of money.^ Where judg- ments are declared by statute to be a lien upon the real es- tate of the defendant from the day of the rendition of such judgment, or from the iirst day of the term in which the judgment is rendered, the decree for alimony will become a lien upon the same date as other decrees.^ The wife is, therefore, entitled to an execution against lands conveyed by the husband after the decree became a lien, although the pleadings and decree contain no reference to any spe- cific property.* § 939, Attachment for coatempt. — The ecclesiastical court did not enforce its orders by imprisonment for con- tempt; but when a husband refused to pay the ahmony awarded he was excommunicated. In 1813 excommunica- tion as a civil process was forbidden, and it was provided that where a party was in contempt a writ de contumace capiendo could be obtained in the court of chancery. But this provision is too recent to be a part of our common law. Later the divorce court was empowered to enforce its orders by proceedings in conformity to the chancery prac- tice.* American courts having jurisdiction of actions for 1 Powell V. Campbell, 30 Nev. 333, provide in effect that the mode of •30 P. 156; Brightman v. Bright- proceedings for divorce shall be as man, 1 E. L 113; Spencer u Spencer, in chancery, and that " decrees in 5 E. I. 150; HamUn v. Bevins, 7 chancery shall, from the time of Ohio (1st part), 161; O'Brien v. their being pronounced, have the Putney, 55 la. 293; Scott v. Rogers, force, operation and effect of a 77 la. 483, 43 N. W. 377; Houston v. judgment at law." Timmerman, 17 Or. 499, 31 P. 1037. ^gee Ex parte Holden, 13 C. B. See indefinite description in Yen- (N. S.) 641; Greenhill v. Greenhill, able V. Craig, 44 Ga. 437. 1 Curt. Ec. 462; Hamerton v. Ham- 2Frakes v. Brown, 3 Blackf. 395. erton, 1 Hag. Ec. 33. As to Eng- 3 Keyes v. Scanlan, 63 Wis. 345, lish practice, see De Lossy v. De ■23 N. W. 570. Lossy, 15 P. D. 115; Alexander v. * Conrad i!. Everich, 50 O. St. 476, Alexander, 3 Swab. & T. 385 ; Nich- criticising ©lin v. Hungerford, 10 oils v. NichoUs, 2 Swab. & T. 637; Ohio, 268. The statutes of Ohio Thomas V.Thomas, 3 Swab. &T. 64; 904 THE DECREE FOE ALIMONY. [§ 939,- divorce have also the inherent power to enforce their orders by contempt proceedings, or by such other adequate means as may be justified by the general jurisdiction of the court,, and its procedure.^ "Without such power our courts could not maintain their authority and many important functions would be paralyzed. It has frequently been insisted that a decree for alimony is in fact a debt, and therefore payment should not be en- forced by attachment for contempt where the constitution prohibits imprisonment for debt. But it is uniformly held^ and such is the true doctrine, that the decree for alimony is an order of the court to the husband compelling him to support his wife by paying certain sums, and thus per- form a public as well as marital duty. Such decree is. something more than an ordinary debt or judgment for money. It is a personal order to the husband, similar to an order of the court to one of its officers or to an attorney. The imprisonment is not alone to enforce the payment of money but to punish the disobedience of a party ; and the' order is not, therefore, a debt, within the meaning of the constitution.^ It is sometimes held that where the statute^ provides for execution and other processes for the coUectioni of alimony, that imprisonment for contempt cannot be re- sorted to as an additional remedy.' But the correct inter- Davies w. Davies, 2Swab. & T.437; Carlton v. Carlton, 44 Ga. 216;. Bremner v. Bremner, 3 Swab. & T. Wightman v. Wightman, 45 IlL. 378; Busby v. Busby, 3 Swab. & T. 167; Ballard v. Caperton, 3 Meto. 383; Dickens v. Dickens, 3 Swab. & (Ky.) 412; Lewis v. Lewis, 80 Ga.. T. 521 ; Pearson u. Pearson, 3 Swab. 706; Grimm v. Grimm, 1 E. D,. & T. 546; Hepworth v. Hepworth, Smith, 100: Pain v. Pain, 80 N. C_ 3 Swab. & T. 414; HoUand v. Hoi- 333; Sheafe v. Sbeafe, 36 N. H. 155; land, 4 Swab. & T. 78; Parr v. Parr, Andrew v. Andrew, 62 Vt. 495, 20 4 Swab. & T. 229; Watts v. Watts, A. 817. See opinion by Cooley, J.,. 4 Swab. & T. 274. Stellar v. Stellar, 35 Mich. 159. But 1 Andrews v. Andrews, 63 Vt. 495, see contra, Coughlin v. Ehlert, 39^ 28 A. 17; Curtis v. Gordon, 63 Vt. Mo. 385. Effect of this provisions 340, 20 A. 820. in contempt cases, see Blake v. P., 2 £'a; ^arte Perkins, 18 Cal. 60; 80111.11. 31urray v. Murray, 35 Fed. 496; 'Lansing u Lansing, 4 Lans. 377^ § 939.] THE DECEEE FOB AUMONT. 905- pretation is that the statute conferring additional remedies- did not deprive the courts of their inherent power to enforce such orders.^ In Illinois it is held that where the payments ar& secured the husband is not liable to attachment for contempt^ such proceeding being harsh and unnecessary.^ In New York the moving party is required to show, not only that the husband has refused to comply with the order, but also that the payment cannot be enforced by execution or seques- tration, or a resort to the securities.' And the order com- mitting for contempt for the non-payment of alimony must be an adjudication that the refusal to make the payments demanded defeated or prejudiced the rights of the other party, and it must further appear that the payments cannot otherwise be enforced.'' The husband is guilty of contempt not only for refusal to pay temporary alimony and perma- nent maintenance, but also attorney fees,''* fees of referee and stenographer," and the cost of commitment, but not the ordinary costs of the suit for divorce.' In those states where it is held that a separate suit for maintenance may be maintained without seeking a divorce, the decree may be enforced by contempt proceedings. The reversing 41 How. Pr. 248; Gane v. Isaacs, 10 Daly, 306; Eahl v. Rahl, Gane, 13 J. & S. 355, overruled in 14 Wk. Dig. 560; Eyer v. Ryer, 67 Freeman v. Freeman, 8 Ab. N. C. How. Pr. 369. 174: Baker v. Baker, 23 Hun, 356. ■> Whitney v. Whitney, 11 N. Y. See statute in Segear v. Segear, 23 Supp. 583, 19 Civil Pro. 265; In re Neb. 306; Jn re Fanning, 40 Minn. 4; Sims, 11 N. Y. Supp. 211, 57 Hun, North V. North, 39 Mich. 67. 433; Mendel v. Mendel, 4 N. Y. St, 1 Staples V. Staples (Wis.), 58 N. Rep. 556; Mahon v. Mahon, 18 J. & W. 1036; Strobridge v. Strobridge, S. 92; In re Swenarton, 40 Hun, 41, 21 Hun, 288; Park v. Park, 18 Hun, 5 Ward v. Ward, 6 Ab. (N. S.) 79, 466; s. C, 80 N. Y. 156. See contra, Branth v. Branth, 36 2 Andrews v. Andrews, 69 111. 609. N. Y. St. 628. See contra, McSherry v. McSherry, 6 Mahon v. Mahon, 5 Civil Pro. 49 111. Ap. 90. 58. See, also. People u Grant, 13 3 See construction of code in Civil Pro. 183. Cockefair v. Cockefair, 23 Ab. N. C. 'Weil v. Weil, 18 Civil Pro. 241, 219, 7 N. Y. Supp. 170; Sandford v. 10 N. Y. Supp. 627; Jacquin v. Jao- Sandford, 44 Hun, 363; Isaacs ». quin, 36 Hun, 378; Rodman v. Rod- Isaacs, 61 How. Pr. 869; Isaacs v. man, 24 Wk. Digest, 473. ©06 THE DECREE FOE ALIMONY. [§ 939. inherent power of the court in such cases is the same as if the proceedings were for divorce.^ The exercise of such power does not violate the provision of the constitution of the United States, that no person shall be deprived of his liberty without due process of law.'^ Attachment for contempt is a harsh and severe remedy. It shoold be confined to cases where the refusal of the hus- band is contumacious, showing a resolve to disobey or defeat the order of the court.' The imprisonment should not be ordered when it appears that the husband has failed to com- ply with the order on account of his inability from business ■misfortunes, lack of health or employment, or other exten- uating circumstances.* The doctrine of res judicata should .apply to the question of the husband's ability to comply with the order. He should not be heard on this question at every stage of the case. "When the court, after hearing the evidence, fixes the amount of the alimony, the order is final, and the husband's remedy is by appeal. If his inabil- ity is due to subsequent events his remedy is by motion to reduce the amount, and by appeal from this order if not satisfactory.* It has been held that, on motion to show cause why he should not be committed for failing to com- ply with the order of the court, the husband cannot show, in opposition to the motion, that his pecuniary circumstances .are such as to render him unable to make the required pay- ments.' But it would seem that any facts occurring after the date of the order for alimony might be shown, since iMurrayv. Murray, 84 Ala. 363, WaUen v. WaUen, 11 Pa. Co. Ct. 4 So. 239. 41. See, also, West v. West, 11 Pa. 2 Murray v. Murray, 35 Fed. 496, Co. Ct. 354; In re Clark, 20 Hun, following above. 551; Gerard v. Gerard, 2 Barb. Ch. 1 Staples V. Staples (Wis.), 58 N. 73; Pritohard v. Pritchard, 4 Ab. W. 1036; Slade v. Slade, 106 Mass. N. Gas. 298; Eyckman v. Eyok- •499. man, 34 Hun, 235. < Noland v. Noland, 39 Hun, 630; « State v. Dist. Ct., 14 Mont. 396, Holtham v. Holtham, 26 N. Y. Supp. 86 P. 757. 763; Spencer v.Lawler, 79 CaL 215; egtrobridge v. Strobridge, 21 Galland v. GaUand, 44 CaL 475; Hun, 288. § 939.] THE DECEEE FOE ALIilUXT. 907 ■such facts Avere not before the court at that time, and may be such as will excuse the husband from further payments.^ The proceeding is quasi-criminal, and due notice of the award must be given and a demand made upon the husband.^ Such demand and notice may be unnecessary under some circumstances, as where the husband is in court, or has no- tice of the order and refuses to comply with it.' The notice should be served upon the husband, but in some cases notice to his attorney will be sufficient.^ The husband must be allowed a hearing on the order to show cause and allowed to show any circumstance which teuds to excuse him or pre- sents a ground for reducing the amount of alimony. The order of the court refusing to reduce the amount of alunony and committing the defendant to prison is a final order from which an appeal will lie.* And the reviewing court may examine all the evidence and order a reduction of the amount.' Bat the evidence cannot be reviewed upon habeas corpus or certiorari? The appeal from the order of commitment does not stay proceedings to enforce instalments of alimony which subsequently become due.* lO'Callaghan v. O'Callaghan, 69 Fairchild v. Fairchild, 13 A. 599, .111. 552. not reported in N. J. Equity Re- 2 Potts V. Potts, 68 Micli. 492, 36 ports. See, also, Rapalje on Con- N. W. 240; Edison v. Edison, 56 tempt, § 104, citing Pitt u David- Mich. 185; Sanchez v. Sanchez, 31 son, 37 N. Y. 234; s. C, 37 Barb. 97; Fla. 346; Sandford v. Sandford, 44 Fisher v. Raab, 56 How. Pr. 218. Hun, 563; Stahl v. Stahl, 13 N. Y. sg. v. Dent, 29 Kan. 416, citing Supp. 854; Brown v. Brown, 23 Whittem v. S., 36 Ind. 196. Mich. 299; Ryckman v. Ryckman, 6GrayleyuGrayley,31How.475; 33 Hun, 193; Zimmerman v. Zim- Pinckard v. Pinckard, 23 Ga. 286; merman, 113 N. 0. 432, 18 S. E. 334. Haines v. Haines, 35 Mich. 138. For procedure consult Petree v. P., See contra, Russell v. Russell, 69 40 111. 334 Me. 336. 3 Potts V. Potts, 68 Mich. 492, 36 ''Ex parte Wilson, 73 Cal. 97; N. W. 340; ,State v. Dist. Ct., 43 Ex parte Cottrell, 59 Cal. 420; In Minn. 40, 43 N. W. 686; Ex parte re Bissell, 40 Mich. 63; "Wright v, Robinson, 71 CaL 608; Davis v. Wright, 74 Wis. 439; State u Dist. Davis, 83 Hun, 500. Ct., 14 Mont. 396, 36 P. 757. See ^ Zimmerman v. Zimmerman, 14 In re Spencer, 83 Cal. 110. N. Y. Supp. 444^ 36 Ab. N. C. 366; 8 Ross v. Griffin, 53 Mich. 5. 908 THE DECEEE FOE ALIMONY. [§ 940. On application to release the husband from imprisonraent,, his inability to comply with the order of the court may b& niade an issue, and the question tried again as of the date of the application.! Upon proof of inability to make the re- quired payments the defendant will be discharged.^ When he has been discharged on account of his inability to comply with the order, he cannot be imprisoned again under another order because of his contempt in failing to pay sums of money afterwards becoming due under the same judgment.^ § 940. Writ ne exeat regno. — The ecclesiastical court could not restrain the husband from leaving the kingdom, nor could it compel the husband to find bail. After the de- cree for alimony Avas granted, if the husband sought to avoid its payment by leaving the country, the court of chancery AFOuld restrain him by issuing the writ ne exeat regno^ The writ would not be issued before the decree was rendered, and there was no remedy while the case was pending in the trial court or on appeal.' American courts having jurisdiction to render decrees of divorce are generally courts of equity, or of common-law jurisdiction, and sometimes exercise both jurisdictions combined. Our courts may issue this writ, unless some other method is provided by statute, or it is pro- hibited by some provision of the constitution or the statutes- against imprisonment for debt. The true doctrine is, that 1 Lansing v. Lansing, 41 How. Pr. ^ Shaftoe v. Sliaf toe, 7 Ves. 171 ; 248; Ryer v. Byer, 33 Hun, 116; Dawson v. Dawson, 7 Ves. 173; McClung V. MoClung, 33 N. J. Efl. Haflfey u HaflEey, 14 Wis. 361; Head 462; In re Ryckman, 36 Hun, 646. v. Head, 3 Atk. 295; Read v. Read, 2 Nixon V. Nixon, 15 Mont. 6, 37 1 Cas. Ch. 115; Oldham v. Oldham, P. 839. , ' 7 Ves. 410; Street V. Street, Turn. •Winton u Winton, 53 Hun, 4; & R. 323; Cook v. Ravie, 6 Ves. s. C, 5 N. Y. Supp. 537, affirmed, 117 283; Anonymous, 3 Ves. Sen. 489; N. Y. 633. For minor points con- Anonymous, 3 Atk. 201 ; Smith- suit, also, Ex parte Allen, 6 Allen son's Case, 2 Vent. 345; Ex parte (N. B.),"398; Gott v. Gott, 10 Grant Whitmore, 1 Dick. 143. Ch. 543; Mackphersonu Mackpher- ^Coglar v. Coglar, 1 Ves. Jr. 94?. son, 3 Chy. Chamb. 222; Needham Street v. Street, 1 Turn. & Russ. V. Needham, 39 Grant, 117; Purcell 333, V. Purcell, 4 Hen. & Munf. 507. § 940.] THE DECREE FOE ALIMONY. 909 ■our courts are not deprived of the jurisdiction to issue this writ by such provisions in cases where the court can render a personal judgment against the defendant, which can be enforced by attachment for contempt, and where he must be personally present to answer its decree, but not in actions for a mere money demand.^ To protect the wife's interests, and to secure the payment of alimony, our courts may issue the writ as soon as the bill is filed, where the wife has reason to believe that the husband is about to leave the state to .avoid paying any alimony which may be awarded her.^ The "writ may issue at any time after decree.^ The aifidavit of the wife alone is sufficient ; and it should show that the hus- band is about to leave the state, and that his departure will defeat her alimony.* In some cases her affidavit that she Relieves the defendant is about to remove from the state win be sufficient, though ordinarily the fact must be estab- lished by a positive affidavit.' When the writ is issued, it must fix the amount of security which will be required of the husband.^ The husband may be discharged upon his paying into court the amount required. But the fact that lie has given security wiU not permit him to leave the state. If it appears that the plaintiff has no case, or that he is not going out of the state, the defendant will be released ; but 'Macolm V. Andrews, 68 IlL 100; 10 N. J. Eq. 138. See practice in Hx parte Barker, 49 Cal. 465; Taber v. Taber, 16 N. Y. Sup. 613; Adams v. Whitcomb, 46 Vt. 708; s. c, 60 N. Y. Supr. 65; Bouoioault Brown v. HaflE, 5 Paige, 334; Beck- v. Boucicault, 59 How. Pr. 131, 31 with V. Smith, 54 Barb. 313; Dean Hun, 481; Hammond v. Hammond, V. Smith, 23 Wis. 483; Bonesteel v. 1 Clark Ch. 151. Bonesteel, 38 Wis. 345; Meyer ■«. 3 gge note, Lyon w Lyon, 31 Conn. Meyer, 35 N. J. Eq. 38; Samuel v. 185. , Wiley, 50 N. H. 353. See action for « Yule v. Yule, 10 N. J. Eq. 138. separate maintenance, Harper v. * Collinson v. CoUinson, 18 Ves. Booker, 53 IlL 370; Jamieson v. 353; Yule v. Yule, 10 N. J. Eq. 138. Jamieson, 53 How. Pr. 113. See affidavit and proceedings in 2McGree v. McGee, 8 Ga. 395; Gardiner v. Gardiner, 3 Abb. N. Prather v. Prather, 4 Des. 33 ; DevaU C. 1. V. Devall, 4 Des. 79; Bylandt v. 'Bj- 6 Denton v. Denton, 1 Johns. Ch. landt, 6 N. J. Eq. 38; Yule v. Yule, 364. 910 THE DECEEE FOE ALIMONT. [§ 9«^ the court may require him to give security that he will an- swer such sum as may be awarded against him.' § 941. Other means of enforcing payment.— The order for permanent maintenance or alimony may be enforced by methods other than attachment for contempt. Sequestra- tion may be resorted to where the husband has available property.^ In some states the various instalments of ali- mony as they become due may be satisfied by execution and garnishment.' The decree is often a lien upon the real es- tate of the husband by virtue of the statute, as such decree is like other judgments.^ But in some states the decree is not a lien unless made so by the terms of the decree.^ The power to secure the payment of alimony by making the decree a specific lien upon the husband's real estate is de- nied under some forms of the statute." The decree may 1 For further questions relating to practice, see Daniel's Chancery Practice, 1698. 2 Stratton v. Stratton, 77 Me. 373; Hills V. Hills, 76 Me. 486; Donnelly V. Shaw, 7 Ab. N. Cas. 264; Becker V. Becker, 15 111. Ap. 247; Forrest v. Forrest, 9 Bosw. 686 ; Foster v. Town- send, 3 Ab. N. Cas. 29; Blenkinsopp V. Blenkinsopp, 13 Beav. 586; Mint- zer V. Mintzer, 10 W. N. C. 336. See, also, Clinton v. Clinton, 1 P. & M. 215; Cook v. Cook, 15 P. D. 116; Allen V. Allen, 10 P. D. 187. 3 Taylor v. Gladwin, 40 Mich. 332; Robinson v. Robinson, 79 Cal. 511, 21 P. 1095; Van Cleave v. Bucher, 79 Cal. 600, 21 P. 954; Piatt v. Piatt, 9 Ohio, 37; Yelton v. Handley, 28 IlL Ap. 640; Foster v. Foster, 130 Mass. 189; Morton v. Morton, 4 Cush. 518; Newcomb v. Newcomb, 12 Gray, 28; Chase v. Ingalls, 97 Mass. 534; Weaver v. Weaver, 7 Utah, 396; Fletcher u Henley, 18 La. 150; Compton v. Arial, 9 La. An. 496. * Sapp V. Wightman, 108 111. 150; Kurtz V. Kurtz, 38 Ark. 119; Stoy V. Stoy, 41 N. J. Eq. 370; Keys v. Scanlon, 63 Wis. 345; Wilson v. Wilson, 40 la. 330; Segear v. Segear, 33 Neb. 806. As to enforcement of decree against a homestead, see Homestead, § 1031. SErrisman v. Errisman, 35 111. 186; Wightman v. Wightman, 45 lU. 167; Perkins v. Perkins, 16 Mich. 162; Walsh v. Walsh, 61 Mich. 554; Sesterhen v. Sesterhen, 60 la. 801; Byers v. Byers, 21 la. 268; Harsh- berger v. Harshberger, 36 la; 503; Min Young v. Min Young, 47 O. St. 501; Johnson v. Johnson, 135 111. 510. SQlin V. Hungerford, 10 Ohio, 268; Kurtz v. Kurtz, 38 Ark. 119; Casteel v. Casteel, 38 Ark. 477. In Nebraska coitipare Swansen v. Swansen, 12 Neb. 210, and Brother- ton V. Brotherton, 14 Neb. 1S6, with Segear u -Segear, 28 Neb. 306; Ny- gren v. Nygren (Neb.), 60 N. W. 885. Under such statute it is a § 941.] THE DECEEE FOE ALIMONT. 911 order the land sold for the payment of alimony.^ The court- has power to compel the husband to give sufficient secu- rity for the payment of alimony .^ If the husband is about to dispose of his property and leave the state to avoid the payment of temporary alimony, he may be enjoined from doing so and a receiver may be appointed to take charge of the property.' Where the husband does not pay taxes, and interest upon debts secured by mortgage on his property, the court may appoint a receiver to take charge of the rents and profits and apply them to claims against the prop- erty and to the payment of alimony.* The wife may maintain a suit on a decree for alimony, but the courts are not agreed upon the form of the action. In some states scire facias will lie.^ But in other states debt is- the proper form of action.* The action is generally in a harmless error to make the decree a specific lien, as it will continue to be a general lien upon a home- stead which can be sold under an ordinaiy execution. Mahoney v. Mahoney (Minn.), 61 N. W. 334 iMcBee v. McBee, 48 Tenn. (10 Heisk.) 558. 2 Wright V. Wright, 74 Wis. 439, 43 N. W. 145; Park v. Park, 18 Hun, 466, 80 N. Y. 156; Sapp v. Wight- man, 103 m. 150; Galusha v. Galu- sha, 108 N. Y. 114; Gane v. Gane, 46 N. Y. Supr. 31§; Howarth v. Howarth, 11 P. D. 68; Harper v. Eooker, 52 111. 370; Reiffenstein v. Hooper, 36 U. 0. Q. B. 395; Rice V. Rice, 13 Ind. 563; Pratherc. Pra- ther, 4 Des. 33; Errisman v. Erris- man, 25 111. 186. Such order may compel the husband to give secu- rity by mortgage on property in another state. Alderson v. Alder- son, 84 la. 198, 50 N. W. 671. But speciflc performance of such order must be enforced by the court which made the order, and cannot be enforced by a suit in the state- where the lands are situated. Bul- lock V. Bullock (N. J. Eq.), 37 A. 435i » Carey v. Carey, 3 Daly, 424. The injunction and lis pendens may be set aside to permit the husband t» mortgage the property to pay the decree for alimony. White v. White, 97 Cal. 604. < Holmes v. Holmes, 39 N. J. Eq, (3 Stew.) 9; Murray u Murray, 84 Ala. 363; Forrest v. Forrest, 9 Bos, 686. SKnapp V. Knapp, 134 Mass. 353 j McCracken v. Swartz, 5 Or. 62, 34 A. 670; Hewitt v. Hewitt, 1 Bland, 101 : Morton v. Morton, 4 Gush. 518 ; Chestnut v. Chestnut, 77 111. 346 j Hansford v. Van Auken, 79 Ind. 303; Prescott u Prescott, 63 Me, 438. <* Compare Elmer v. Elmer, 150 Pa. 205, 34 A. 670; and Clark v. Clark, 6 Watts & S. 85; Howard v, Howard, 15 Mass. 196. ■912 THE DECEEE FOE ALIMONY. [§§ 94:2, 943. court of equity, since the decree is directed by a ooui;t of equity and cannot properly be enforced in an action at law.^ § 942. Suit on foreign decree for alimony.— A decree for alimony rendered by a foreign court may be enforced in this country by the same process as a decree obtained in an- other state. The wife may maintain a suit in equity to re- cover the arrears of alimony. It would seem that when a decree is rendered upon a foreign decree that the court could exercise any of its powers as a court of equity, and enjoin the husband from conveying his property, compel him to give security for the alimony to become due, and enforce the payment of the decree by sequestration and other processes of courts of equity. But in JS'ew York it is held that an ac- tion at law to recover instalments of alimony as they accrue is the plain and adequate remedy, and that' equity can afford no further rehef. " It is said the defendant may depart or make away with his property. But against that contingency the ancillary processes of arrest, attachment and injunction afford a sufficient safeguard. It is said again that still the plaintiff has no security for future alimony. But the French decree does not sequestrate the defendant's property ; and in the absence of any lien or other specific claim on such property he has a right to dispose of it, and plaintiff's reh- ance is on his personal credit." . . . "The lex fori — the law of this state — gives effect to a right of alimony acquired abroad only by an action for its recovery." ^ § 943. Suit on decree for alimony rendered in another state. — The husband cannot escape his liability under a de- cree for alimony by leaving the state. The federal courts or the courts of other states will enforce her decree.' It was at one time held that an action in equity to enforce a decree for alimony rendered in another state could not be iVan Buskirk v. Mulock, 3 Har- ing Barber v. Barber, 21 How. rison, 184; Allen v. AUen, 100 Mass. (U. S.) 583. .373. 3 Van Buskirk v. Mulock, 3 Har- 2 "Wood V. Wood, 28 N. Y. Supp. rison, 184 See, contra, Bullock v. 154, 7 Misc. E. (N. Y.) 579, criticis- Bullock (N. J.), 37 A. 435. .§ 943.] THE DECKEB FOE ALIMOHT. 913 maintained because such decree was not a fixed judgment or debt, but was a mere adjudication of the husband's duty to support, and consequently subject to the revision of the trial court at any time.^ But this ruling is not followed to .any extent, and was soon after discredited in a subsequent proceeding between the same parties in the federal courts.' The power to revise the decree for alimony should not deter the courts of other states from granting relief ; for, if the decree is erroneous or oppressive, the husband may have the same revised by the court which rendered it. Until this is done, the decree stands in some respects as an erroneous decree, and is otherwise valid if the court in which it was rendered had jurisdiction. The courts of other states can- not change the terms of the decree.' Nor will the courts of one state refuse to enforce the decree of another because such decree was rendered in an action for alimony without divorce and such relief could not be obtained within the state. It is nevertheless a judgment of another state and entitled to the full faith and credit required by the constitu- tion of the United States, although alimony without divorce may be a remedy not afforded by the laws of the state.^ In a suit upon a decree for alimony rendered in another state, the jurisdiction of the court which rendered the decree maj^ be questioned and the action dismissed if there was no per- sonal service upon the husband and he did not enter appear- ance.' If for any reason the decree for alimony is erroneous, this will not be a defense to an action on such decree in iBarberu Barber, IChand. (Wis.) port of the wife after a child 280. Such decree is not merely in- reached a certain age, it was held terlocutory. Dow v. Blake, 46 111. that the Wisconsin court had ex- Ap. 339; S. C, 148 lU. 76, 35 N. E. elusive jurisdiction to determine 761. the amount of such support. Al- 2 Barber u. Barber, 21 How. (U. S.) derson v. Alderson, 84 la. 198, 50 583, foUowed in Brisbane v. Dob- N. W. 671. son, 50 Mo. Ap. 176. ^ Stewart v. Stewart, 27 W. Va. 'In an action to foreclose a 167. mortgage in Iowa, given to secure ' See Rigney v. Eigney, 6 N. Y. a decree of alimony rendered in Supp. 141, reversed 127 N. Y. 408, . Wisconsin for the reasonable sup- 28 N. E. 405. 58 914 THE DECEEE FOE ALIMONY. [§ 943, another state. The husband's remedy is to apply to the court which rendered the decree to have the same vacated. Where the husband obtained an absolute divorce in Ken- tucky, and afterwards the wife obtained a decree for divorce and alimony in Ohio, she may enforce the decree for alimony against the lands of the husband in Kentucky if the Ohio court had jurisdiction, although the Ohio court might have erred in granting aUmony under the circumstances.' The proceeding to enforce a decree for alimony is gen- erally a suit in equity. But an action of debt will also lie- in most states.^ "The amount of the decree and all the un- paid instalments may be recovered as if the decree was a, judgment in an action at law, although the courts of equity in England refused to enforce more than the arrears of ali- mony for one year preceding the application in such courts.' An action may be maintained by the wife against the husband in the federal courts to enforce the payment of arrears of alimony. Federal courts have no jurisdiction to- award alimony, but derive their jurisdiction in such cases from the general jurisdiction of courts of equity. Such courts exercise the same jurisdiction as the chancery court of England, which would enforce the payment of alimony. The courts also have jurisdiction on the ground that the parties reside in different states, whether the decree is an absolute divorce or a separation from bed and board.'' In either case the wife has a right to acquire a separate dom- icile, and the suit to enforce a decree for alimony is a con- troversy between citizens of different states.'* The jurisdiction of the federal courts is well illustrated by the leading case of Barber v. Ba/rher^ The wife obtained a decree for ali- mony, and for separation from bed and board, in a suit in IsTew York, where both parties were domiciled. The hus- * 1 Rogers v. Eogers, 15 B. Mon. ^\A. -364. * Barber v. Barber, 31 Ho-ve. (U. S.) 2 Brisbane v. Dobson, 50 Mp. Ap. 583. 170; Dow V. Blake, 148 IlL 76, 35 6 Bennett v. Bennett, Deady, 399. N. E. 761. 6 31 How. (U. S.) 583, § 943.] THE DECEEE FOE ALIMONY. 915 band refused to pay the alimony awarded, and removed to Wisconsin, where he obtained an absolute divorce from his wife, who remained in New York. The wife brought suit in Wisconsin and the supreme court of that territory held that the action would not lie. Subsequently the wife brought a suit in equity in the circuit court of the United States for that territory, and recovered a decree against the husband, which was affirmed on appeal to the supreme court of the United States. The decision of the latter court affirms the jurisdiction of the federal courts, and holds that the Wis- consin decree a vinculo did not affect the force and vaUdity of the decree for alimony rendered in New York.' 1 This case is followed in Cheever v. Wilson, 76 U. S. 108. DIVISION AND KESTORATION OF PROP- ERTY. § 960. In generaL 961. Whether the property al- lotted is alimony. Division of property by di- vesting title. Division of property by other means. 963. 963. § 964 Enforcing agreement to con- vey title. 965. How the property is divided. 966. Practice in the division of property. § 960. In general. — The status of a wife, divorced for causes arising subsequent to the marriage, was unknown at the common law. "When an absolute divorce is granted the wife is placed in a new position, and the statute must au- thorize the court to make some provision for her. In the absence of statute our courts have no jurisdiction or com- mon-law power to grant an absolute divorce, or to grant farther relief after such divorce. The courts have, therefore, only such power to provide for the wife after a dissolution of the marriage as is conferred by the statutes. The legis- latures of the various states have accordingly authorized the courts to give the wife an allowance after divorce, and in most cases have called this allowance alimony, or perma- nent alimony. In a few states these terms have been avoided ; and the courts have been authorized to provide for the wife out of the real and personal estate of both par- ties, or to divide the real and personal estate.' When an absolute divorce is granted the policy of our law encourages subsequent marriages, and does not hold the property of the parties with a view to reconciliation and reunion. The common law proceeded upon an entirely dif- 1 See Parsons v. Parsons, 9 N. H. 309 (1888), § 960.] DITISION Am) EESTOEATION OF PEOPEETT. 917 ferent policj. It contemplated a reunion, and granted the wife a liberal allowance for her support until this was con- summated. No property was disturbed and no titles were divested. But the absolute divorce is an ultimate remedy, a last resort. The parties must be relieved of the marital re- lation in every respect. Their separate property must be restored ; and their common property, the result of mutual labor and contribution, must be divided. It is clear that the property should be divided so as not to interfere with the obligations of a subsequent marriage. If an allowance is granted to the wife out of the husband's income during their joint lives, he is placed in the anomalous and burdensome position of supporting two wives, if he should marry again. If the divorced wife should marry again he will not be re- lieved of supporting her; although she has become the wife of another. The injustice of such decrees has often induced the husband to refuse further payments ; and his vigorous protest has often caused contempt proceedings to be brought against him. If the decree for alimony is not secured by real estate, the husband will frequently defeat all attempts to enforce its payment. If the court grant the use of the husband's land during their joint lives, this will prevent the improvement and sale of the property, and is in other ways contrary to our policy concerning the title to real estate. If the decree is made a lien upon real estate, this may neces- sitate its sale ; and the proceeds may be wasted by the wife. If a gross sum is awarded her, to be paid immediately, it will impose a heavy burden upon the husband, often forcing him to sacrifice his property at sale, or to borrow money at high rates of interest. Many of these dilficulties may be avoided by distributing the personal property and awarding the wife a portion of the real estate in fee. This she may lease, incumber or convey as the circumstances may require. A final accounting and distribution of the property of both parties is to be preferred to a decree of alimony ; because the parties are free to marry again, their rights are adjudi- cated and secured without unnecessary sacrifice, and their 918 DIVISION AND EESTOKATION OF PEOPEKTY. [§ 961. titles are clear and unincumbered. A decree of divorce is thterefore a final settlement as to all property rights of tlie husband and wife. In some states a similar remedy is provided by statutes directing the court to grant alimony to the wife, and to re- store to her the whole, or such part as may seem reasonable, of the personal estate that came to the husband by reason of the marriage. Where such statutes were enacted before the enactment of the married women's act, it is clear that it refers to the property rights of the husband at common law, and the object of such statute was to restore such property to the wife. It is held that property obtained from the wife as a gift is not within the meaning of such statute.^ Eut this is not important, since the court, in making an allow- ance to the wife, may consider any gifts made to the hus- band, and increase the allowance according to the circum- stances of the case and not according to the rigid rules of law.- This form of statute contemplates a restoration of the property by a decree of the court based on proper pleadings. A divorce will not, by mere operation of the statute, restore to each the property owned before marriage.^ §961. Whether the property allotted is alimony. — If the common-law definition of alimony is adhered to, the term should only be applied to the provision for the support of the wife after a decree of separation.* In its technical meaning it is an allowance paid by a husband to a wife dur- ing a judicial separation. But if the marriage is dissolved, there is no wife, no husband, and consequently no alimony. An allotment of real estate awarded to the wife after a dis- 1 Dillon V. Starin (Neb.), 63 N. W, mortgage, and while it was pend- 12. ing the wife obtained a divorce. 2 See Permanent alimony, g 909. It was held that the divorce did 3 Farley v. Farley, 91 Ky. 497. not revive the mortgage debt which In this case the wife, while a feme was extinguished by the marriage. sole, executed a note and mortgage For allowance of dower on di- to a man to whom she was after- vorce, see Dower, § 1036. ward married. The husband com- * See distinction made in Miller menced an action to foreclose the v. Clark, 23 Ind. 370, § 962.] DIVISION AND EESTOKATION OF PEOPERTY. 919 solution of the marriage is in the nature of a settlement of mutual accounts, in Avhich not only the maintenance of the wife, but also the conduct of both parties, is considered, and compensation is allowed for her right of dower, and for the "wrong inflicted upon her by the cause for divorce. It is a final adjudication of property rights of the parties, and is not subject to changes according to the needs of the wife or the wealth of the husband.' The death of either party will not affect the property rights of the other.' The allotment is similar to a decree for alimony in that it is granted after divorce and provides in part for the maintenance of the wife. But in all other respects the two are different, and to call the allotment alimony, or permanent alimonj', is a misnomer leading to confusion of terms.' But inadvertently, or for want of a better term, the courts have called this division ■of real and personal property "alimony."* § 962. Division of property by divesting title. — In some states the statute in express terms directs the court to divide the real and personal property.^ In other states the power 'Bacon v. Bacon, 43 Wis. 197; ^See Brandon v. Brandon, 14 Blake V. Blake, 68 Wis. 303; Peter- Kan. 342; Busenbark v. Busen- sine V. Thomas, 28 O. St. 596. bark, 33 Kan. 573; Blankenship v. 2 Miller V. Clark, 23 Ind. 370. Blankenship, 19 Kan. 159; Broad- 3.Eicpaj-feSpicer, 83CaL460. well v. Broadwell, 21 O. St. 657 ■"See Ross v. Ross, 78 III 403; Faulkner r. Faulkner, 15 S. W. 523 Daily v. Daily, 64 la 339; Prescott Herron v. Herron, 47 O. St. 544 ■V. Prescott, 65 Me. 478; Prescott v. Petersine v. Thomas, 36 O. St. 590 Prescott, 59 Me. 146; Tyson i;. Tyson, Lovett v. Lovett, 11 Ala. 763 54 Md. 35; Taylor v. Taylor, 93 N. Quarles v. Quarles, 19 Ala. 363 -C. 418; Shaw v. Shaw, 114 III. 586; Whittier v. Whittier, 11 Foster Dinet v. Eigenmann, 80 111. 274; (N. H.), 452; Webster v. Wehster, ■Chenault v. Chenault, 37 Tenn. 2 Wash. St. 417, 26 P. 864; Swett v. 247; Wiggins v. Smith, 54 N. H. Swett, 49 N. H. 264; Barker v. 313; Owen v. Yale, 75 Mich. 256; Cobb, 36 N.H. 264; Sheaf et-. Sheaf e, ■Coadn Coad, 41 Wis.33; Williams 40 N. IL 516. As to division of t'.WiUiams, 36 Wis. 362; Gallagher community property, see White V. Fleury, 36 O. St. 590; Moul v. v. White, 86 Cal. 219, 24 P. 996; Moul, 30 Wis. 203; Burrows «. Pur- Cummings v. Cummings, 75 Cal. pie, 107 Mass. 438; Broadwell v. 434; Harris v. Han-is, 71 Cal. 314; Broadwell, 31 O. St. 657. • Simpson v. Simpson, 80 CaL 287; 920 DIVISION AND EESTOEATION OF PEOPERTY. [§ 962.. to divide real property and vest the fee in the wife is de- rived from the statutes, which in general terms authorize- the court to provide maintenance for the wife and children. Thus in Illinois the statute provides that : " When a divorce shall be decreed the court may make such order touching- the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the cir- cumstances of the parties and the nature of the case shall be fit, reasonable and just ; and, in case the wife be complain- ant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner con- sistent with the rules and practice of the court." This stat- ute is held to be so general in its terms as to permit the- court to assign as alimony to the wife a part of the real es- tate of the husband in fee.^ Thus, where the wife purchased lands with the proceeds of the husband's property, the court, on granting her a decree for his desertion, directed the wife to convey one-half of the land to the husband.^ The statute of New Jersey makes no distinction between the absolute divorce and the decree of separation, but pro- vides that, " when a divorce shall be decreed, it shaU and may be lawful for the court of chancery to take (make) such order touching the alimony and maintenance of the wife,, and also touching the care and maintenance of the children or any of them, by the said husband, as from the circum- stances of the parties and the nature of the case shall be fit, reasonable and just." The vice-chancellor held that as the statute was remedial it should be liberally construed, and that its terms permitted the court to decree the husband's, property in fee to the wife as alimony.' But on appeal the Eslinger v. Eslinger, 47 Cal. 63; lifif u JoUiff, 33 111. 537; Robbins t). - Miller V. Miller, 33 Cal. 353; De Bobbins, 101 111. 416; Hopper v. Godney v. De Godney, 39 Cal. 157; Hopper, 19 111. 319. Fields V. Fields, 3 Wash. St. 441, 37 ^ Stewartson v. Stewartson, 15 P. 367. 111. 146. 1 Armstrong u Armstrong, 35 111. ^Calame v. Calame, 34 N. J. Eq.. 109; Wheeler v. Wheeler, 18 111. 39; 441. Bergen v. Bergen, 33 HL 187; Jol- § 962.] DIVISION AND EESTOEATION OF PEOPEETT. 921 chancellor refused to follow this interpretation. The terms " alimony " and " maintenance" were technical words having- a fixed and established meaning, and had not received this construction ; although the statute had been' in force more than fifty years. "Xor" can I "perceive," said he, "the force of the argument that, as these terms have acquired tbeir meaning from having been applied to divorces from bed and board, they should have a wider scope when applied to divorces from the bond of matrimony. How is a change of meaning to be implied, when language, understood tech- nically, is certainly not inapt when used in either connec- tion? . . . The clause under consideration relates to both kinds of divorces, so that, if land can be awarded as alimony where there is a divorce from the bond of matrimony, it can where there is a mere separation from bed and board. This result alone would seem to be sufficient to demonstrate the inadmissibility of the interpretation in question. In aid of this view, 1 will, in conclusion, point to the fact that the modes appointed by the act to enforce the payment of ali- mony, such as requiring security from the husband, and au- thorizing the sequestration of his personal estate and the rents and profits of his real estate, appear to stand in oppo- sition to the idea that a part of the land itself can be set apart for the wife. In fine, as the legislative language, put- ting upon it its well settled meaning, will not lead to any absurd or unreasonable result, in my opinion the section must be held to import that, where an allowance is made under its authority, such allowance must be alimony, that is, money payments of the character of an annuity." ^ In New York the provision relating to alimony ^ does not permit any relief other than the alimony of the common law. It is held that the court has no power to set apart a portion of the household furniture for the use of the wife.' lid., 35 N. J. Eq. 548. In this 2 Sec. 1766 of the Code, case the same relief was granted ' Doe v. Doe, 53 Hnn, 405; s. C, 5 on the ground that the husband N. Y. Supp. 415. This is a narrow had agreed to convey the property and erroneous construction of the in question. liberal discretion conferred by the 922 DIVISION AND KESTORATION OF PEOPEETT. [§ 962. The statute in "Wisconsin provides that " The court shall, in all cases, subject to the provisions of this chapter, regu- late the division and distribution of the estate, real and per- sonal, between the parties, and the allowance of alimony to the Avife, or to her and the minor children committed to her care and custody, according to equity and good conscience, having always due regard to the legal and equitable rights of each party; but nothing contained in this chapter shall authorize the court to divest any party of their title to or interest in any real estate, further than is expressly specified herein." The last portion of this section is held to prohibit the court from divesting a party of his title to real estate in all cases except as provided in the same section, but not in all cases. The practice in this state is to^divest the guilty party of the title to real estate and transfer the property, or a portion of it, to the innocent party in fee.^ The Kentucky code ^ provides that every decree of divorce shall contain an order of restitution of any property not dis- posed of at the commencement of the action which either party may have obtained directly or indirectly from or through the other during marriage. Where the wife has obtained the property through a decree of separation, she holds the same, although the husband subsequently obtains a decree of absolute divorce containing the order of restitu- tion.' In Nevada the statute provides that, " when the marriage provision which authorizes the 586; Wilke v. Wilfce, 38 Wis. 296 court, "in the final separation, to Damon v. Damon, 28 Wis. 510 give such directions as the nature Williams v. Williams, 36 Wis. 362 ' and circumstances of the case re- Thomas v. Thomas, 41 Wis. 229 quire. In particular, it may com- Varney v. Varney, 58 Wis. 19. See pel the defendant to provide suit- dictum to contrary in Nebraska, ably for the education and main- Ellis v. Ellis, 13 Neb. 91, 13 N. W. 29. tenance of the children of the 2 gee. 425, Civ. Code, marriage, and for the support of 3 Johnson v. Johnson (Ky.), 29 S. the plaintiff, as justice requires, W. 332; Flood u Flood, 5 Bush, 167. having regard to the circum- See, also, Williams v. Gooch, 3 stances of the respective parties." Mete. 486; Bennett v. Bennett, 36 1 Donovan v. Donovan, 20 Wis. S. W. 392. § 963.] DIVISION AND EESTOEATION OF PKOPEKTT. 923 shall be dissolved by the husband being sentenced to impris- onment, and when a divorce shall be ordered for the cause of adultery committed by the husband, the wife shall be en- titled to the same proportion of his lands and property as if he were dead; but in other cases the court niay set apart such portion for her support and the support of their chil- dren as shall be deemed just and equitable." The term " set apart " means a division of property, and authorizes the court to divest one party of title and convey it to the other.^ Where the alimony must be in gross, and not in annual payments, the courts have no implied power to divest one party of title or to set apart a certain share of real estate.^ The court may give the Avife absolute title to lands under a statute providing 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 right and proper." ' § 963. Division of property by other means. — The stat- utes providing for a division of property after a dissolution of the marriage confer a broad discretionary power upon the courts to provide for the equitable settlement of the prop- erty of both parties. The best policy will generally require a division of the real estate, giving the wife some productive property which will yield her an income, and allowing the husband to retain any property which is incumbered, or which requires attention or further investment. It is imma- terial who holds the legal title to the property, since the decree of the court may divest the title and convey it to the other.* This method is to be preferred, because the property iPowelli;. Campbell, 30 Nev. 333; Ewen, 26 la. 375; Zuver v. Zuver, Wuest V. Wuest, 17 Nev. 217. 36 la. 190; Twing v. O'Mera, 59 la. 2 Green v. Green, 7 Ind. 113; Rice 336. See different construction in V. Rice, 6 Ind. 100: Musselman v. Russell u Russell, 4 Greene (la.), 26; Musselman, 44 Ind. 106; Alexander Hunt v. Hunt, 4 Greene, 316; Du- V. Alexander (Ind.), 40 N. E. 55. pont v. Dupont, 10 la. 112. 3 Jolly V. Jolly, 1 la. 9; O'Hagan < Gallagher v. Gallagher, 89 Wis. «5. O'Hagan, 4 la. 509; Jungk v. 461, 61 N. W. 1104. Jungk, 5 la. 541; McEwen v. Mc- 924 DIVISION AITD EESTOEATION OF PEOPEETY. [§963. will not be sacrificed at forced sale by execution or injure the financial standing of the parties. Third persons inter- ested in the real estate will have an opportunity to protect their rights after the division of the property. If the parties desire to forgive the past, and renew the marital relation,^ they may do so without the loss or disturbance of their prop- erty rights. There are also many other considerations which may render a division of the property and a divesting of title the most satisfactory remedy. But the statutes permit a departure from this method where the circumstances will not permit of a divesting of title or the allotment of specific property. One party may be awarded the use of the real estate or a pertion of it dur- ing good behavior or while single. In some instances the wife is awarded the use of the real estate for life.^ Where the property consists of real estate and division of it is im- practical or will destroy its desirability or productiveness,, or interfere with vested rights of creditors, the court may award a gross sum of money as an equivalent.^ This sum may be secured by making the decree a lien on the property, where the decree would not have that effect by operation of statute. Or the court may make other orders securing the payment of such sum, without forcing the sale of real'estate.* Where the wife is inexperienced or without business ability the court may find it expedient to award the wife a resi- dence or a small portion of the real estate and a reasonable amount of ahmony.* Or the division may be adjusted by awarding a portion of real estate and a sum of money.' The iLovett V. Lovett, 11 Ala. 763; 19 Kan. 159; Holmes v. Holmes, 2 Shaw V. Shaw, 114 111. 586; Rogers Jones' Eq. 334; Royston v. Royston, V. Vines, 6 Ire. 293; Keating v. 13 Ga. 435. Keating, 48 111. 241 ; Sammis v. ^ McClung v. McClung, 43 Mich. Medbury, 14 R. I. 314. 53. ' Benedict v. Benedict, 58 Conn. * Armstrong v. Armstrong, 35 111. 336; Lyon v. Lyon, 31 Conn. 184; 109. See confra, Quarles n Quarles,^ Sanford v. Sanford, 5 Day, 353; 19 Ala. 363. Von Glahn v. Von Glahn, 46 111. ^See Brooks v. Akeny, 7 Or. 461; 134; Blankenship v. Blankenship, Varney v. Varney, 58 Wis. 19. § 963.] DITISION AND KESTOEATION OF PEOPEETT. 925 husband may be compelled to pay off the incumbrances upon the property awarded to the wife.' Or the wife may be compelled to pay the taxes and incumbrances, and divide the profits of the homestead allotted to her, paying the hus- band in semi-annual instalments.^ The court may allow the wife to retain property held in her name, and require her to pay the husband a certain sum of money or to secure such sum by mortgage on her real estate.' "Where the court has power to divide the real estate, the title cannot be awarded to the children, or to the wife in trust for the children.* If the statute provides that alimony may be awarded out of real and personal property, it is not error to award alimony in the usual f orm.^ The provision of the statute relating to the division of the property, and providing for a suitable allowance for the wife, must be liberally construed, with a view to eifect its object and to promote justice. In some instances this will require a decree providing for the payment of a sum of money in instalments, or, in effect, a decree for alimon3^ And the court has the power to award this allowance al- though the statute does not use the term " permanent ali- mony." * This allowance is not, in fact, permanent alimony, but is a compensation for the wrong to the wife, a compen- sation for her right of dower, or for her interest in the com- munity property. But for want of a better term it is called " permanent alimony " in some states. In Illinois the courts have been averse to awarding the wife a portion of the real estate in fee ; and have awarded in lieu thereof a permanent allowance, which is termed alimony. In a leading case in this state the wife was allowed as alimony real estate worth about $10,000, and $20,000 in money, this being equal to 1 Cummings v. Cummings, 75 CaL See, also, Groslouis v. Northcut, 3 434, Or. 394; Dosoher v. Bleokiston, 7 2Snodgrass v. Snodgrass, 40 Kan. Or. 403; JollifiE v. JoUiff, 33 111. 527. 494 6 Sampson v. Sampson, 16 R. L 3 Gallagher v. Gallagher, 89 Wis. 456, 16 A. 711. 461, 61 N. W. 1104 ^In re Spencer, 83 CaL 460. * Simpson v. Simpson, 80 CaL 337. 926 DlVISIOlf AND BESTOEATION OF PEOPEETT. [§ 963. one-third of the property owned by tl:e husband. The ap- pellate court refused to affirm this decree, and said : " The power of the court to decree alimony in this mode has been sanctioned by this court, but Ave do not deem this a proper case for its exercise. The estate of the defendant had been accumulated by him before his marriage. Her claim, there- fore, to an a'bsolute portion of it is by no means the same, in an equitable point of Adew, that it would be if the prop- erty were the product of the joint labors and economies of the parties during their married life. Neither did the wife bring property to the husband upon her marriage. It would then, in our opinion, be unjust to give her absolutely a large amount of property, which, in the event the death of the child followed on her own death, would go to her family, who are strangers to the blood of the defendant. Or sup- pose, what Avould be very likely to happen, that she should marry again and have children. On her (Jeath, intestate,, the children by the second husband would each have the same share of this $30,000 with the child of the defendant. . . . The statute evidently contemplated an allowance to be paid at stated intervals for the wife's support ; and in the present case, as it is now before us, we should regard this as the better practice." ' It appears to be the settled policy of this state to grant the wife alimony, instead of real estate in fee, where she had no means at marriage, de- rived none by inheritance, and the property is not accumu- lated during the marriage.^ If the husband receives nothing from the wife, she is not entitled to any title in fee ; but if her money or labor has assisted in the purchase of the land there should be a division of the property.' Although the statute does not permit a division of the property, the court may allot the use of a portion of the real estate for life as alimony.* 1 Von Glahn v. Von Glalm, 46 IlL 3 See Bobbins v. Eobbins, 101 111. 134. 416. 2 Wilson V. Wilson, 102 111. 397; * Shaw v. Shaw. 114111. 586; Rog- Keating v. Keating, 4S 111. 341. ers v. Vines, 6 Ired. 393; Russell u Russell, 4 Greene (la.), 26. §§ 964, 965.] DIVISION and kestoeation of pkopeett. 93T § 964. Enforcing agreement to convey title. — Although the statute does not authorize the court to divest either party of title to land, and the court has no such inherent power, yet this will not preclude the court from enforcing the agreement of the parties to convey land, when a decree of divorce is rendered. Where a husband offered to convey certain land in fee to the wife, and also to pay a certain sum of money in gross, when she obtained a decree, and such offer was made and accepted in writing and set up in the petition with a prayer that the agreement be enforced, such agreement may be enforced by a court of equity as a provision in lieu of alimony. Such agreement must be valid and reasonable, and not against public policy as an agree- ment to live in separation.^ This case was approved and followed in Missouri under a similar statute where the agree- ment was made in open court.^ The court is not bound by the agreement of the parties, and may make an additional allowance to the wife, especially where the custody of the children is awarded to her.' Or, if the agreement is unjust and inequitable, the court will disregard it.* § 965. How tiie property is divided. — The statutes gen- erally leave this question to the discretion of the court. And this is the only method by which the rights and merits of the parties can be considered, and justice tempered with mercy. Our divorce laws are, at best, harsh and arbitrary 'in their operation, denying relief when both parties and the interest of the state demand it, and, again, granting a dis- solution of the marriage for slight offenses, when the courts would, if they had discretion, refuse divorce. But while the statutes do not give the courts any latitude as to the 1 Calame v. Calame, 25 N. J. Eq. 2 Crews v. Mooney, 74 Mo. 37, 548, citing and discussing the f ol- citing Eussell v. Riwsell, 4 Greene lowing cases: Lucas v. Lucas, 1 (la.), 26. See, also, Stockton v. Atk. 270; Head v. Head, 3 Atk. 547; Guth v. Guth, 3 Bro. C. C. 614 Frampton v. Frampton, 4 Beav. 394; Fitzer v. Fitzer, 3 Atk. 513 Shepard v. Shepard, 7 Johns. Ch. 57, Knock, 78 Cal. 435. 3 Cole v. Cole, 33 la. 433. 1 McAllister v. McAllister, 57 Tenn. (10 Heisk.) 345. 928 DIVISION AND KESTORATION OF PEOPEETT. [§ 965. causes for divorce, when the property rights are to be de- , termined, the courts are free to consider all the conduct of the parties, their industry, their earnings, and the amounts they have contributed to the common fund, and in view of all the circumstances to give each party what is just and equitable. Long experience has established the wisdom of trusting this distribution of the property to the courts, and demonstrated the folly of prescribing fixed rules, for this purpose. jSTevertheless we still find in the statutes of some of our states a fixed proportion to be given a wife who ob- tains a divorce from her husband. Sometimes she is to be given the same amount as if the marriage were dissolved by death, or, in other words, the portion of a widow. In some instances the legislature has fixed a greater or less amount. These statutes operate as a fixed prize or bounty to all wives who will renounce their marital duties and obtain divorce. In V some instances it may induce designing Avomen to con- tract marriage to enable them to win this prize by divorce. In Oregon it is the peremptory duty of the court to decree to the innocent party one-third part of aU the real estate owned by the guilty party, regardless of the equities of the case.' The division of property after a dissolution of the marriage is sometimes made upon the theory that the court must re- store to each party his or her share of the common fund, as if the marriage were annulled, and each must be placed in statu quo.''' But the better doctrine is that the rule of equity which requires that upon a rescission of a contract the par- ties be placed in statu quo has no application to a suit for divorce.' The common-law unity of husband and wife would forbid such a theory of distribution. Such a rule would be •Wetmore v. Wetmore, 5 Or. ^chunn v. Chunn, Meigs, 131; 469; Rees v. Rees, 7 Or. 47; Hall v. Musselman v. Musselman, 44 Ind. Hall, 9 Or. 543; Bamford v. Bam- 106;' Payne v. Payne, 33 Tenn. (4 ford, 4 Or. 30; Ross v. Ross, 31 Or. Hiunph.) 500; McGill v. MoGill, 19 9. But a foreign decree will not Fla. 341. have this effect. Barrett v. Fail- ^"vyillniore v. Willmore, 15 B. ing, 6 Sawyer, 473. Mon. 49. § 965.] DIVISIOX AXD EESTOEATION OF PEOPEETT. 929 against public policy- ; since it would leuve either party to .commit a cause for divorce with impunity, knowing that . upon a decree dissolving the marriage he or she would re- ceive the same proportion of the property. And to send away an injured wife with simply what she has brought to her husband, or with an additional sum for her services dur- ing the marriage, " with nothing for her mental sufferings, nothing for her blasted prospects in life, nothing for the sacrifice of her virginity and early bloom to brutality or lust," would place her on the level of a mistress and a serv- ant. The sound theory upon which the court should pro- ceed in dividing the property after divorce is to compensate the wife for the wrong inflicted upon her by the cause for divorce, to compensate her for the loss of dower, and the interest in the common property, as well as to provide in part for her future support.^ In dividing the property the conduct of each party will have some influence with the court. The guilty wife will receive something, but much less than an equal share.'^ If the conduct of the wife has been §uch that she is not en- titled to a divorce, but the decree cannot be reversed on appeal, the supreme court may refuse alimony, and allow the husband to retain the homestead.' Although the wife is entitled to a divorce, the court, in awarding her alimony, may consider her ante-nuptial unchastity, her fraudulent concealment of her guilt before marriage, her hasty suit for divorce, and the liberal allowance of temporary alimony during litigation.'' The amount of property which the wife contributed to the common fund should be considered. Her -specific property may be restored to her.' But where there i/n re Spencer, 83 Cal. 460. < Varney v. Varney, 58 Wis. 19. 2Lovett V. Lovett, 11 Ala. 763; 6 sharp v. Sharp, 84 Tenn. (3 McCaflEertyv.McCafferty,8Blaokf. Sneed), 496; Tewksbury r. Tewks- •218; Richardson u Wilson, 8 Yerg. bury, 4 How. (Miss.) 109; Kings- 67; Snodgrass v. Snodgrass, 40 berry u Kingsberry, 8 Harr. (Del.) Kan. 494; Tumblesome v. Tumble- 8; Grubb v. Grubb, 1 Harr. (Del.) some, 79 Ind. 558. 516. See, also, Flood v. Flood, 5 3 Ensler v. Ensler, 72 la. 159. Bush (Ky.), 167; Williams v. Gooch, 59 930 DrVISIOlf AND EESTOEATION OF PEOPEETT. [§ 965"l. is a distribution to be made the court may refuse to restore • the wife's property to her, but will consider her contribu- tion to the common fund, and award her accordingly.^ Both the separate and the joint property may be included in the- estunated fund from which the distribution may be made.* The proportion which the wife should receive on a disso- lution of the marriage is, in the absence of statute, fixed by the court according to the circumstances of the case. There is no fixed rule or proportion. The courts have not set- tled upon any policy which should govern the distribution. Under the common-law status of the wife she should have sufficient to maintain her according to the means of her husband. Modern, legislation has placed the husband and wife in a status of equality in many of their property and social rights, but has not removed from the husband the burden of supporting the family. This duty still remains, and must be considered in a distribution of property. But if the husband has no property, the wife must submit to. the? misfortune.' If the property to be divided is community property, it is not clear that all of it may be awarded to the wife.* But in some cases where the wife is the innocent party and is awarded the custody of the children, the courts have found it a sound and conservative policy to award the homestead in feq to the wife.'' If the wife is unable to sup- 3 Met. (Ky.) 486; Kriger v. Day, 2 Pick. 316; Dean v. Dean, 5 Pick. 438; Dean v. Richmond, 5 Pick. 461; Warner v. Warner, 83 Miss. 547 ; Jennings v. Montaigne, 2 Gratt. (Va.) 350; Dejarnet v. Dejarnet, 5 Dana, 499. 1 Stillman v. Stillman, 66 Tenn. (7 Baxter), 169. 2 Webster v. Webster, 2 Wash. St. 417, 26 P. 864; Van Brunt v. Van Brunt, 53 Kan. 380, 34 P. 1117. ^Chenault v. Chenault, 87 Tenn. (5 Sneed), 248; Ensler t). Ensler, 73 la. 159. ^All the community property may be awarded. See Miller v. Mil- ler, 33 Cal. 353; Gimmy v. Gimmy, 23 Cal. 633; Gimmy v. Doane, 23 Cal. 635; Howe v. Howe, 4 Nev. 469; Strozynski v. Strozynski, 97 Cal. 189, 31 P. 1130. But see, contra, Tiemann v. Tiemann, 34 Tex. 522; Craig V. Craig, 31 Tex. 203. See in- ventory and division of community property approved in Simons u Simons, 33 Tex. 344'; Trimble v.. Trimble, 15 Tex. 18. For Louisi- ana see cases cited in HeflEner v. Parker (La. An.), 17 So. 207. 5 Brandon v. Brandon, 14 Kan. 342; Cole v. Cole, 33 la. 433; Boyd, § 965.] DIVISION AND EEST0EA1T0N OF PEOPEETT. 931 port herself, all of the homestead may be awarded to her, leaving the husband to support himself by his own efforts, and by sale of some of the personal property awarded to him.^ Where the property of the husband consists of a house and lot, this may be awarded to the wife, if the hus- band is able to support himself.^ In making the distribution the court wiU consider ante- nuptial agreements and marriage settlements. It would seem that the power to divest a party of title to real estate would include the power to vary or cancel marriage settle- ments according to the rules governing the distribution of property.' In England the courts are authorized, after an- nulling or dissolving a marriage, "to inquire into the exist- ence of any ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make any such orders with reference to the application of the whole or a portion of the property settled, either for the benefit of the children of the marriage or of their re- spective parents, as to the court shall seem fit." * The de- cisions under this section may be useful where a marriage settlement is to be changed after divorce.^ V. Boyd (Cal.), 31 P. 1108; Johnson Bacon, 2 Swab. & T. 86; Corbett V. Johnson (Cal.), 33 P. 637. But the v. Corbett, 13 P. D. 136; Corbett v. community property so awarded Corbett, 14 P. D. 7; Noakes v. is subject to the debts of the fam- Noakes, 4 P. B. 60; Bird v. Bird, -1 ily contracted by the husband on P. & M. 231; March v. Marcli, 1 P. the faith of his ownership of such & M. 440; Corrance v. Corrance, 1 property. Frankel u Boyd (Cal.), P. & M. 495; Smithe uSmithe, IP. 39 P. 939. & M. 587; Worsley v. Worsley, 1 P. 1 "Webster v. Webster, 64 "Wis. & M. 648; Graham v. Graham, 1 438; Donovan v. Donovan, 20 Wis. P. & M. 711; Paul v. Paul, 2 P. &M. 586; Eidenmuller v. Eidentnuller, 93; Sykes v. Sykes, 3 P. & M. 163; 37 Cal. 864 Milne v. Milne, 3 P. & M. 395; Crisp 2 Wuest V. Wuest, 17 Nev. 317, 30 v. Crisp, 3 P. & M. 436; Symonds P. 886; Harran v. Harran, 85 Wis. v. Symonds, 3 P. & M. 477; Hope 299 55 N. W. 400. v. Hope, 3 P. & M. 326; Gladstone "Hacker v. Hacker (Wis.), 63 N. v. Gladstone, 1 P. D. 442, 3 P. & M. W. 378. 160; Benyon v. Benyon, 1 P. D. 447; 4 32 & 33 Vict., eh. 61, § 5. Maudsley v. Maudsley, 3 P. D. 356; 5 A. V. M., 10 P. D. 178; Bacon v. Yglesiasu Yglesias, 4 P. D. 71; Anii- 932 DIVISION AND EESTOEATION OF PKOPEETT. [§ 965. The power of our courts to vary or cancel marriage set- tlements and conveyances of one married party to another has been denied where the statute does not confer such power. The trial court on granting a divorce found that the husband had nlade a voluntary settlement upon the wife of certain real property, and directed her to reconvey a spe- , cific portion thereof to the husband. The real estate Avas purchased by the husband with money received by him from the wife at marriage, but both parties had contributed the funds used in the erection of improvements. The supreme court of the District of Columbia affirmed the decree of the lower court.' But the supreme court of the United States reversed the decree, holding that, in the absence of any stat- ute relating to permanent alimony, the lower court had no power to disturb a valid gift upon granting a divorce.^ But in the states where the courts have statutory power to grant alimony on an absolute divorce, it seems clear that all gifts and settlements should be considered in determining the proper allowance.' dell V. Ansdell, 5 P. D. 138; Boss v. v. Carstairs, 3 Swab. & T. 538; Call- Ross, 7 P. D. 20 ; Wigney v. Wigney, well v. Callwell, 3 Swab. & T. 359 ; 7 P. D. 177; Wigney u Wigney, 7 P. Norris v. Norris, 1 Swab. & T. 174; D. 228; Jump v. Jump, 8 P. D. 159; Webster v. Webster, 3 Swab. & T. Oppenheim v. Oppenheim, 9 P. D. 106; Thomas v. Thoraas, 2 Swab. & 60; Clifford v. Clifford, 9 P. D. 76; T. 89; Bent v. Bent, 3 Swab. & T. Ponsonby v. Ponsonby, 9 P. D. 58- 392; Boynton v. Boynton, 3 Swab. 132; Noel v. Noel, 10 P. D. 179; Far- & T. 375; Bell v. BeU, 1 Swab. & T. rington v. Farrington, 11 P. D. 84; 565. Smith V. Smith, 13 P. D. 102; Har- i Jackson v. Jackson, 1 MacAr. 34. rison v. Harrison, 12 P. D. 130; 2 jaokson u Jackson, 9i IT. S. 122. Pryor v. Pryor, 12 P. D. 165 ; Bos- It has since been held that on viUe V. Bosville, 13 P. D. 76; Ben- granting a divorce the court has yon V. Benyon, 15 P. D. 39 ; Nun- no power, in the absence of stat- neley v. Nunneley, 15 P. D. 186; ute, to disturb a valid settlement Chetwynd v. Chetwynd, 1 P. & M. made before the cause for divorce 89; Swift V. Swift, 15 P. D. 118; arose. Hinds v. Hinds, 7 Maokey, RolUns V. Eollins, 4 Swab. & T. 158 ; 85. Gill V. Gill, 3 Swab. & T. 359 ; Ling ' See this question in Permanent V. Ling, 4 Swab. & T. 99; Stone v. alimony, § 1037. Stone, 3 Swab. & T. 373; Carstairs § 960.] DIVISION AND EESTOEATION OF PEOPEETY. 033 § 966. Practice in tlie division of propei'ty. — This is a statutory proceeding for a division of property after a dis- solution ; and the property should be described and a divis- ion prayed for in the petition for divorce.^ There are some states "where the property allotted is called alimony; and it is held that a prayer for division of the property is not nec- essary, since alimony is a mere incident of a proceeding for divorce.^ The award of property is not in a true sense a decree of alimony, but is more in the nature of a final accounting be- tween the parties. After term the court will have no power to revise the decree or change the amount.' Such decree is a final judgment, unless it is shown property was omitted by fraud or mistake.* To have this eifect the decree must show that there was a distribution of the property ; and if it appears that alimony was awarded, or personal property only was divided, the decree may be modified.^ If, after the decree is rendered, the wife discovers other real property not considered by the court in making the award, she may have the decree modified and her proportion of the property increased.^ The wife may bring a subsequent suit to enforce her rights under the decree, as against the husband and his creditors and grantees.'' 1 Howe V. Howe, 4 Nev. 469; Boss N. W. 337; Petersine v. Thomas, 38 V. Ross. 21 Or. 9, 36 P. 1007, and O. St. 596. cases cited. * Wright v. Wright, 7 Tex. 526. 2Twing V. O'Mera, 59 la. 326. In s Blake v. Blake, 68 Wis. 303. Georgia the jury may award prop- " Lyon v. Lyon, 21 Conn. 185. erty to the wife in fee. See Gholston ' Weiss v. Bethel, 8 Or. 523 ; Godey V. Gholston, 54 Ga. 285. v. Godey, 39 Cal. 161 ; Whetstone v. 3 Bacon v. Bacon, 43 Wis. 197; Coffee, 48 Tex. 269; H6uston v. Webster v. Webster, 64 Wis. 438; Timmerman, 17 Or. 499. Kempster v. Evans, 81 Wis. 347, 51 CUSTODY AND SUPPORT OF CHILDREN. §975, 976. 977. 978. In general. The relative claims of the parents. Custody during suit for di- vorce. Access to children. 979. Custody where a divorce is denied. 980. Effect of order of custody ' rendered in another state. § 981. Support of children after divorce. 983. Support where decree is si- lent as to custody. 983. Support where custody awarded to wife. 984. The order for custody and support. 985. "When modified. § 975. In general. — "When it has been determined that a divorce will be rendered it becomes necessary to make some order concerning the custody and support of children of the parties. The court granting the divorce is the proper tribunal in which to determine which parent is best quali- fied to be custodian ; for, in hearing the evidence as to the conduct of the parties and the nature and extent of the property owned by each, such court has before it the prin- cipal facts which are necessary to enable it to select the best person as a custodian. The statutes confer a broad discre- tion upon the trial court to make such order as the circum- stances require, and in the exercise of this discretion the court is to consult the welfare of the child in every case. The good of the child is paramount to all other considera- tions, and the court may ignore the greater affection of one party, the common-law right of the father, the agreements of the parties, and, if the circumstances clearly require it, niay award the custody to a third person. The agreement of the parties is not binding upon the court, for it is not the § 975.] CUSTODY AlifD SUPPORT OF OHILDEEN. 935 rights of the parents whicli are to be determined.' Tet if the <30urt upon investigation finds the agreement is fair and ade- quate, it will hesitate to interfere with the wishes of the par- ties. If such agreement is approved the coupt may enter an order in conformity with it. If the child has arrived at an age to have an opinion as to which parent wiU be most suitable, the court may consult the wishes of the child.^ But the court may ignore the choice of a child where it is the result of prejudice and manifestly against its welfare.^ In case the child has attained an age of suflBcient discretion to «nable it to exercise a wise choice, the order will not be made contrary to its wishes.* The English courts at one time held that the order for custody and support could only be made until the children arrived at sixteen.' The rule of the court of chancery, that at sixteen a child was of sufficient years of discretion to choose its own guardian, was followed, and the custody was awarded until the children arrived at six- teen years of age. From this it was reasoned that a valid order of support for a child over sixteen could not be made, for the maintenance followed the custody. But the true doctrine is that on rendering a decree of divorce the court has a statu- tory discretion which greatly exceeds that of the court of chan- cery," and may provide for both the custody and support of -the children until they are twenty-one years old.'' The usual form of the order for support is that a certain person shall have the custody of the children, and a certain sum shall be paid for their support at certain intervals " until the further 1 Giles V. GUes, 30 Neb. 634; * Eeg. u Howes, 3 B. & E. 333. D'Alton V. D'Alton, 4 P. D. 87; 5 Mallinson u MaUinson, :^ P. & M. White V. White, 75 la. 218; Cook 231; Eyder v. Eyder, 3 Swab. & T. V. Cook, 1 Barb. Ch. 639; Kremel- 335; Webster v. Webster, 31 L. J. burg V. Kremelburg, 53 Md. 553. P. & M. 184. 2 Coffee V. Black, 83 Va. 567. In « Marsh v. Marsh, 1 Swab. & T, English V. English, 31 N. J. Eq. 543, 312. the court allowed a boy of ten 'Thomassett v. Thomassett, 6 years and a girl of eight to select Eep. (1894), 637, overruling Bland- .theparemt. ford v. Blandford, 1893 Probate, 3 DissMiting opinion in Hewitt v. 148, and citing and discussing the iLong, 76 III 399. authorities. 936 CUSTODY XKD SUPPORT OF CHILDEEN. [§ 976, order of the court," and in this way the decree may he modi- fied from time to time, whether the statute provides this, remedy or not. It is the duty of the court to fix the cus- tody of the children, although the pleadings do not seek: such relief.^ § 976. The relative claims of the parents. — Upon di- vorce the parents have equal rights as to the custody of the- children, and the welfare of the child will always deterndne- the conflicting claims of the parents. The paramount right of the father to the custody of a child at the common law is in some of the cases admitted to exist, bat is said to be suhr ordinate to the best interest of the child.^ But on decreeing: divorce the husband has no paramount right to the custody of his children. The common-law right, if it was an abso- lute vested right, is terminated by the dissolution of the' marriage.' The absolute divorce and the discretion of the court to make such order as is just and reasonable concern- ing the maintenance and custody of the children after the marriao:e is dissolved were unknown at the common law, and are conditions created hy modern statutes. The court has au- thority under the statute to treat the welfare of the children as the. chief consideration, and in the exercise of a sound 1 Parker v. Parker, 8 Ohio Cr. Ct. natural guardian, invested by Godi R. 363. and the law of the country with 2 Adams v. Adams, 1 Duv. (Ky.) reasonable power over them. Un- 167. See Welch v. Welch, 38 Wis. less, therefore, his parental power 534; Wand v. Wand, 14 CaL 513; has been cruelly abused, this court Green v. Green, 52 la. 403; Lusk v. would be very cautious of inter- Lusk, 38 Mo. 91; Ahrenfeldt v. fering with the exercise of it." Ahrenfeldt, 1 Hoffman, 497; Ben- Afterwards on proof of the cruelty nett V. Bennett, Deady, 399; Chet-/ of the husband, the custody or wynd V. Chetwynd, 1 P. & M. 39; the children was awarded to the Cartlidge v. Cartlidge, 2 Swab. & mother. Prather v. Prather, 4, T. 567. In an early case on grant- Des. 33. ing the wife separate maintenance 3 Giles v. Giles, 30 Neb. 634; Hew- the chancellor said: "With respect ett v. Long, 76 111. 899; Green v.^ to the children, I do not feel at Green, 53 la. 403; Cooke v. Han- liberty to take them out of the num, 39 Miss. 433, 489. custody of the father. He is the § 976.] CUSTODY AND SUPPORT OF CHILDREN 93 T discretion will choose that parent as custodian who has the best qualifications.' "We will now proceed to notice the instances Avhere th& good of the child has been held paramount to the valid claims of the parents. Perhaps the most extreme case is- where the best interests of the child have required the court to ignore the claims of both .parents, and award the custody to a third person who was better quahfied than either.^ The power to award the custody of the children of the par- ties to a third person is conferred by the ordinary form of the statute relating to the custody of children after divorce.' The terms of the statute in some states may contemplate this disposition.* The discretion of the court is abused if the custody of a child is awarded to a third person where one of the parties is not manifestly unqualified for the trust.* Where the court has the power to award the custody to a third person, a stranger will be allowed to intervene and raise an issue concerning the qualifications of both parents.* Where the parties are not of the same faith, the court is not 1 Marsh v. Marsh, 1 Swab. & T. *In re Laplain (La. An.), 8 So, 312; Boynton v. Boynton, 2 Swab. 615. This power is denied where & T. 275; Miner v. Miner, 11 111. 43; the statute provides that the courts Umlauf V. Umlauf, 128 111. 378, 21 upon rendering a decree of divorce, N. E. 600; Barrere v. Barrere, 4 "may make such further judg- Johns. Ch. 187; Cook i: Cook, 1 ment as it shall deem just and Barb. Ch. 639; Schichtl u Schichtl, proper concerning the care, cus- 88 la. 210, 55 N. "W. 309; Lyle v. tody and maintenance of the minor Lyle, 86 Tenn. 372; Haymond v. children of the parties, and may Haymond, 74 Tex. 414; Adams v. determine with lohich of the parties Adams, 1 Duv. 167; Corrie v. Cor- the children, or any of them, may rie, 42 Mich. 509 ; Myers v. Myers, remain, having due regard to the 83 Va. 806, 6 S. E. 630. age and sex of such children. "^ - Custody was awarded to grand- Hopkins v. Hopkins, 39 Wis. 165, parents in Lambert v. Lambert, 16 166, 167. Or. 485, 19 P. 459; Eice v. Rice, 21 5 Farrar v. Farrar, 75 la. 125. Tex. 58; Godrich v. Godrich, 3 P. 6 Chetwynd v. Chetwynd, 1 P. & & M. 134. See, also, McCarthy v. M. 39, 4 Swab. 151; Godrich v. God- Hinman, 35 Conn. 538. rich, 3 P. & M. 134; March v. March, 3 Chetwynd v. Chetwynd, 4 Swab. 1 P. & M. 437. & T. 151. 938 CUSTODY AND SUPPOET OF CHILDEEN. [§ 976. bound to choose which form of religious training will be for the best interests of the children, but may properly avoid the question by awarding the custody to some suitable per- son within easy access of both parents.^ This will leave the children free from the evil effects of the dissensions of their parents. Where the good of the child does not prevent, the custody is generally awarded to the party who obtained the divorce.^ Where the parties cohabited during a suit to annul the marriage on account of a prior marriage undissolved, neither of them is an " innocent party " within the meaning of the statute, and the court will not change the custody of the child.' A party who is fairly qualified ought not to lose the society of the children because forced to obtain divorce by the misconduct of the other .^ But the court may in its discretion award the custody to the guilty party if best qualified, for the party obtaining divorce is not entitled to the custody as a matter of right.^ Ordinarily a mother who has committed adultery will not be permitted to retain her child after divorce.* But the guilt of the wife may be over- looked where she is not grossly immoral, if the child is of tender years.'' In such case the order is only temporary and subject to the further order of the court. iD'Alton V. D'Alton, 4 P. D. 87. Milford v. Milford, 1 P. & M. 715 2Carr v. Carr, 23 Gratt. 168 Latham v. Latham, 30 Gratt. 307 Welch V. Welch, 38 Wis. 534 Bacon v. Bacon, 1 P. & M. 167 Skinner v. Skinner, 18 P. D. 90 Beaucaire v. Lepage, 12 Lower Can, Becker v. Becker, 79 111. 533; Bixrge Eep. 81. -u. Burge, 88 lU. 164; Wilkinson v. sSafford v. Safford, 31 Abb. N. C. DemiQg, 80 IlL 343; Codd v. Codd, 73, 27 N. T. Supp. 640. 3 Johns. Ch. 141; Lemunier v. Mo *Suggate v. Suggate, 1 Swab. & Cearly, 37 La. An. 133; Klein v. T. 492. Klein, 47 Mich. 518; Kingsberry v. 5 Haskell v. Haskell, 133 Mass. 16. Kingsberry, 3 Harring. (Del) 8; ^Helden v. Helden, 7 Wis, 396; Jeans v. Jeans, 3 Harring. (Del.) Kremelberg v. Kremelberg, 52 Md. 143; Noel v. Noel, 9 0. E. Green, 553; Jackson v. Jackson, 8 Or. 403; 137; P. V. Mercein, 8 Paige, 47; J. Uhlman u Uhlman, 17 Abb. N. Gas. F. C. V. M. E., 6 Rob. (La.) 135; Boyn- 236. ton V. Boynton, 2 Swab. & T. 275; ^C. v. Addicks, 5 Binn. 530. The § 976.3 cusxdDY ajnD suppokt of oiiildken. 939 It is not an absolute rule that one who has committed adul- tery is morally unfit to have the custody of a child. The circumstances may show repentance or other facts which render a repetition of the offense improbable.^ And sus- picious conduct of the wife will not deprive her of the cus- tody of young children where the husband failed to establish her adultery, and divorce is granted on account of his cruelty.- The fact that a party has deserted may be evidence of a gross marital wrong. But in the ordinary case there are generally some palliating circumstances which, though not sufficient to justify a separation, may disclose that the de- serter was not greatly at fault. The mother may in some circumstances be permitted to retain the custody of the children, although she has been guilty of desertion.' But the circumstances may justify the court in awarding the custody to the father, where the welfare of the children re- quires.* The mother is preferred as a custodian for children while very young and in need of personal attention and maternal care ; and the courts have without exception granted the custody to her, regardless of her former conduct.* The necessity of a mother's care does not necessarily cease when the nursing period is over. A delicate and nervous child custody may be subsequently * See cases cited above. See, also, changed when the child is older. Wagner v. Wagner, 6 Mo. Ap. 573; C. V. Addicks, 2 S. & B. 174 Lyle v. Lyle, 86 Tenn. 373; Brown iSee observations in Cook v. u Brown, 53 Mo. Ap. 453; Johns u Cook, 1 Barb. Ch. 639; Dailey v. Johns, 57 Miss. 530. See statute of Dailey, Wright, 514; Williams v. Michigan in Klein v. Klein, 47 Williams, 4 Des. 183. Mich. 518, fixing custody of chil- 2 Brown v. Brown, 53 Mo. Ap. 453. dren in mother if children are 8 Messenger v. Messenger, 56 Mo. under twelve years of age. In 529; Umlauf v. Umlauf, 128 lU. Miner v. Miner, 11 111. 43, children 378; Leavitt v. Leavitt, Wright, at seven or eight were considered 719; Luthe v. Luthe, 13 Colo. 431; of tender years, and in need of Thiesing v. Thiesing (Ky.), 36 S. W. " that tender care which nature 718. requires, and which it is the pecul- * Luck V. Luck, 93 CaL 653, 38 P. iar province of a mother to sup- 787. ply." 940 CUSTODY AND SUPPOET OP OHILDEEN. [§ 977. needs a mother's attention and care until years of discretion are reached.^ But one court has concluded that when a. child is three years old, "the tender nursing period has- passed by, and the time for moral training and impressions- has arrived." ^ This is perhaps an extreme case, as older children are usually awarded to the mother. The best in- terest of the child 'is to be determined by the court, and no- absolute rule can be given. As a rule the mother is preferred as a custodian for the daughters, and the sons are awarded to the father, as each parent may have some peculiar advantage in training a child of the same sex.' The fact that one or both parties, have married again may change this practice, since the ques- tion will then be, Which home will be the best for the child?* On the death of the parent in custody of the child, the sur- vivor has a right to present his claims to the custody of the child ; ' and the deceased parent has no right to appoint a testamentary guardian.^ The child remains the ward of the court, and the decree may grant the custody to the survivor on his application.^ §977. Custody during siiit for divorce. — The custody of the children of the parties in a suit for divorce is not 1 See Eeeves v. Reeves, 75 Ind. court and granted the custody to 343. the mother in accordance with the- 2 Carr v. CaiT, 33 Gratt. 168. wishes of the child, which was held 3 See Greenleaf v. Greenleaf (S. to have attained sufficient disore- D,), 61 N. W. 43. tion to make an intelligent choice. *In Hewitt v. Long, 76 111. 399, In both the opinion and the dis- the father of the child, a girl of senting opinion the relative claims fourteen, applied for a modifica- of the parents are considered at tion of the decree of (Jivorce and greatlength. for the custody of the child. The '" Schammel v. Schammel, 105 mother had allowed the child to Cal. 258, 38 P. 739. remain with her father and mother, ^Blackburn, In re, 41 Mo. Ap. the child's grandparents, until her 623; Davis v. Davis, 14 P. D. 162. marriage. The father had mar- See, under Texas statute, McKin- ried, and had the best home and ney v. Noble, 38 Tex. 195; S. r. more ample means for the educa- ReufE, 29 W. Va. 751. tion of the child; but the court 'See, contra. Hill v. Hill, 49 Md. reversed the decision of the lower 450. § 977.] CUSTODY AND SUPPOKT OF OHILDKEN. 9J:1 finally determined until the decree is rendered. The statutes generally provide that when a divorce has been rendered the court may make such order concerning the care, custody and maintenance of the children as from the circumstances of the parties and the nature of the case shall be reasonable and just. This statute, it wlLl be observed, does not give the power to fix the custody of the children while the suit is pending. On the contrary, the power to make ad interim orders concerning the custody of children seems to have been excluded by the terms of the statute. But under this form of statute it is held that courts having general chan- cery jurisdiction over the custody of children may make ad interim orders in a suit for divorce.^ And it is clear that the court, having jurisdiction without the suit for divorce, would not be deprived of jurisdiction by the pendency of such suit on its own docket. It is held the power to make ad interim orders may be implied from the general terms of the statute relating to the custody of children on divorce.'^ This construction is not to be approved, however, as the statute contemplates an order made after decree.' The order ad interim must be applied for and sustained by some showing. Ordinarily the party having the custody win be allowed to retain it unless some good reason appears why the children should be given to the custody of the ap- pUcant.* On the hearing of this application the court will act upon the showing, but will not attempt to determine, in advance, the merits of the suit.^ The application like one for temporary alimony should show probable cause. Where the welfare of the children does not demand immediate change the court wiU generally, in the exei-cise of its dis- cretion, permit the party having possession of the children i/w re Morgan, 117 Mo. 349, 21 nam v. Putnam, 3 Code K. 122; P. S. W. 1132, 23 S. W. 913; Scoggins v. Paulding, 15 How. Pr. 167; V. Scoggins, 80 N. C. 318; Gilpin v. Green v. Green, 53 la. 403. Oilpin, 13 Colo. 504, 31 P. 613. * Day v. Day, 4 Misc. 235, 34 N. 2 In re Morgan, supra. Y. Supp. 873. 3 See construction of statute per- 5 Eyder v. Eyder, 3 Swab. & T. mitting ad interim orders. Put- 335. 942 CUSTODY AlTD SUPPOET OF CHILDEEN. [§ 978. to retain it during the suit and grant the other party reason- able access from time to time.' Other courts will not interfere by Tiaheas corpus or other- "wise to fix the custody of a child when the court having- jurisdiction of the parties in the divorce suit has made an. order for the temporary custody of the children pending the suit for divorce.^ The welfare of the child and its fut- ure support are so dependent upon the result of the suit that the pendency of the suit should deprive other courts from interfering in the matter.' The power to make a tem- porary order for custody pending suit includes the power to make a similar order while the suit is pending on appeal.*' § 978. Access to children. — The court usually grants the- custody to one party and allows the other party reasonable access to the child.* The parent deprived of custody has no absolute right to access to the children, as the court may refuse the same for the best interest of the child. This power will be rarely exercised. The practice once was to deny an adulteress all access to her children.* But it is now conceded to be within the discretion of the court, and the feelings of the guilty party are now considered.'' In fact it is better for the child to be acquainted with both parents,. iDayu Day, 4 Misc. 233, 24 N. 5 Haley v. Haley, 44 Ark 429; T. Supp. 873; Boynton v. Boynton, Campbell v. Campbell, 37 Wis. 206:, 1 Swab. & T. 324; Thompson v. Oliver u Oliver, 151 Mass. 349;. Thompson, 2 Swab. & T. 402; Cur- Bailey u Bailey, 17 Or. 114. 19 P. tis V. Curtis, 1 Swab. & T. 75. 844; Hill v. Hill, 49 Md. 450. The 2 In re Morgan (Mo.), supra. failure to allow a party access i» 3 In re Delano, 87 Mo. Ap. 185. not error. The remedy is to apply But other courts have interfered for a modification of the decree in on the ground that before a di- this respect. Burge v. Burge, 88 vorco is rendered the court has 111. 165. no power to make a temporary 6 Seddon v. Seddon, 3 Swab. & T. order concerning the custody of 640; Clout v. Clout, 2 Swab. & T. the children. Ex parte De Ange- 391. lis, Edmond's Sel. Cas. 476. ' Taylor v. Taylor, 29 L. J. (P. & *In King v. King, 43 Mo. Ap. M.) 150; Symington a;. Symington,. 454, such order is said to be void, L. E. 3 So. & D. 415. as interfering with the jurisdiction of the appellate court. § 979.] CUSTODY AOT> SUPPORT OF CHILDREN. 943 and the court will not permit, one parent to prejudice th& child against the other. Access will be denied where it is- shown that it is abused by causing dissensions in the family and arousing discontent in the child.^ It is the policy of our courts to permit both .parents tO' have access to the children, and for this reason the order may provide that the child shall not be removed beyond the jurisdiction of the court or out of the state.^ But where it is urged that one party, otherwise a proper custodian, will re- move the child to another state, such person has been granted the custody.' The advisability of permitting one parent to' remove the child to another state is a matter clearly within the jurisdiction of the court, and, like all questions relating- to mutual claims of the parents, must be determined by the best interests of the child.* § 979. Custody where a divorce is denied. — Under stat- utes granting power to fix the custody of children where a divorce is rendered, or " during the pendency of the cause, ' Handley v. Handley, 1 Probate not personally be within the juris- (1891), 124 diction of the court; the subject- 2 Hewitt V. Long, 76 lU. 399; Um- matter is such that the judgment lauf V. XJmlauf, 35 111. Ap. 634; of the court will be valid and bind- Eckard v. Eckard, 29 Neb. 457; ing upon her, and by the constitu- Ryce V. Byce. 53 liid. 64; Miner v. tion of the United States may be Miner, 11 111. 43; Clarke, In re, 17 enforced against her, though in Jur. 362, 17 Eng. Law & Eq. 599; another state." Stetson v. Stetson, Dawson v. Jay, 2 Eng. Law & Eq. 80 Me. 483, 15 A. 60. 451. See criticism of English au- ■• Where a decree of divorce- thorities in Hewitt v. Long, supra, awards the custody to one party in dissenting opinion. and does not prohibit a removal 3 Adams u Adams, 1 Duv. 167; from the state, but grants access BuUen, In re, 38 Kan. 781. There to the other party, the inference is is a dictum that there is no au- that the child shall remain where thority to prevent the parent from both parties then reside. Camp- removing the child from the state bell v. Campbell, 37 111 206. But and that the court retains juris- a removal will not place the party diction to change the custody of in contempt of court where the the child after the removal. " On interests of the child are thereby any proper process for a change, promoted. Id. Such removal does she is bound, wherever she may not give the other party a right to be, to take notice, though she may obtain the custody of the child- Dii CUSTODY AND STJPPOET OF OHILDEEN. [§ 980. or at its final hearing, or afterwards," it has been held that the courts have no authority to fix the custody of the chil- dren where a divorce is denied.' It is said that this juris- diction is purely statutory, and such relief must be refused because it is not provided for in the statute. Eut it is not ■denied that the court has jurisdiction to fix the custody in a subsequent proceeding by habeas corpus, and it seems useless to deny the relief in a divorce and grant it in another suit for the same purpose in states where the different forms of action are abolished. When the parties are before the court and their domestic affairs have been the subject of ju- dicial investigation, it would seem to be the proper time to adjudicate the rights of the parents to the custody of the children, as the court has jurisdiction of the parties and the subject-matter. In some states this relief wiU be granted where divorce is denied.^ But the court may in its discre- tion refuse to make any order concerning the children if the circumstances do not require it.' The good of the child determines the custody where a divorce is denied, and the same considerations will influence the discretion of the ^ourt.'' § 980. Effect of order of custody rendered in another state. — An order of custody rendered in another state by a court having jurisdiction over both parents is valid and binding as to" their rights to the children. Such order is not, however, res judicata as to the right of the state to de- termine the custody of the child. The decree of another state may be binding as to the parties, but the courts of each state will have the right to determine anew who shall be entitled to the custody of the cMld,' and where its wel- fare requires, the courts of the latter state may commit the Joab V. Sheets, 99 Ind. 339. It is, s Brenot v. Brenot, 102 CaL 394, however, a circumstance in his 36 P. 673. favor. ^ Cornelius v. Cornelius, 31 Ala. 1 Davis V. Davis, 75 N. Y. 331; 479. Keppel u Keppel (Ga.), 17 S. E. 976. ^Kentzler v. Kentzler, 8 Wash. 2 See Luck v. Luck, 93 Cal. 653. St. 166, 38 P. 370. •28 P. 787. § 980.] CTTSTODT AND SUPPOKT OF CHILDREN. 9J:5 ■child to the custody of a third person.^ Where a wife ob- tained a decree of divorce from the husband in Illinois, and the husband, after having answered in the case, left the state and removed the children to ISTew York to avoid the decree of the court, on habeas corpus by the wife to obtain the possession of the children it was held that the Illinois decree awarding the wife the custody of the children did not operate as an estoppel, but only as a fact bearing on the discretion of the court in arriving at a proper custody of the children in the circumstances of the case.'' In these cases the right of the state to change the guardian or custodian is recognized. But in other decisions it is held that the order of a court having jurisdiction over the child is res ad- Judicata as to all parties, and the power to change the cus- tody of the child is never lost although the parents and child leave the state.' And all applications to change the decree must be made to the court granting the order.^ It is clear that a decree based upon constructive service is void for lack of jurisdiction so far as it attempts to fix the custody of a child residing with the defendant in an- other state.' It is not res adjudicata as to the defendant or as to the interest of the state in which the child resides. But a valid order may be made where the child is within the state although the defendant is a non-resident and is served by publication.* In such case the court had jurisdiction to determine the custody of the child as well as the status of the plaintiff, the jurisdiction being obtained by the same process. The court in which the divorce is rendered may fix the custody of children although they are residing in an- other state. The order in such case is an adjudication of l/wreBort, 25 Kan. 308. Wuest v. Wuest, 17 Nev. 317; ' Stanton i\ Wilson, 3 Day, 37. Webster v. Webster, 3 Swab. & T. ■• See dissenting opinion in Pierce 106; Plaster v. Plaster, 53 111. 445; V. Pierce, 64 Wis. 73. A divorced Id., 67 111. 93. 94:8 CUSTODY AND SUPPOET OF CHILDEBN. [§ 981. children.^ If the court has made no provision for custody and support in the decree, or has granted the custody to the wife without provision for their support, the provision may be afterwards made upon petition or motion and notice to the husband.^ Where the statute provides that the court shall have power to modify the order at any time after the decree, it is clear that the court granting the order of custody will retain jurisdiction not only as to questions of custody, but also as to support, and a wife cannot maintain an action in another court to recover the expense of keeping the chil- dren. Her only remedy is to apply to have the ord^r modi- lied by the court which granted it.' And upon the hearing the court may render complete justice and order the hus- band to pay for past support.* The power to grant relief as to support already furnished is doubtful. The support without decree should be presumed voluntary unless the circumstances show an agreement for conapensation.' The amount of the allowance should be stated separately and not included in the sum allowed as alimony.^ For where ali- mony is allowed and the decree is silent as to the main- tenance of the children, it is held that the alimony is for the wife alone.'' The property of the parties cannot be set apart except as maintenance for the children during their minor- ity.' The ordinary form of the statute directing a provision • Heninger v. Heninger (Va.), 18 * Plaster v. Plaster, supra; Holt S. W. 193. V. Holt, supra; and Washburn v. 2 Wilson w Wilson, 45 Cal. 399; Catlin, sttpra. Plaster v. Plaster, 47 111. 390; Holt 5 Chester v. Chester, 17 Mo. Ap. V. Holt, 42 Ark. 495; Buckminster 657. V. Buckminster, 38 Vt. 348; King « Johnson v. Johnson, 36 111. Ap. uMiller(Wash.), 38P. 1030; Erken- 152; Zuver v. Zuver, 36 la. 190; bradh v. Erkenbraoh, 96 N. Y. 456; Wheildon'ti. Wheildon, 3 Swab. & Washburn v. Catlin, 97 N. Y. 623. T, 388. As to power under revised code see ^ Pretzinger v. Pretzinger, 45 O. Wells V. Wells, 10 N. Y. St. Eep. St. 453; Eogers v. Rogers (Ohio), 36 348; Chamberlain v. Chamberlain, N. E. 310; Eiohmond v. Richmond, 17 N. Y. Supp. 578. 1 Green Ch. 90; Foote v. Foote, 23 SMcNees v. McNees (Ky.), 80 S. 111. 435; Dow v. Dow, 38 N. H. 188. W. 207. 8 Fitch V. Cornell, 1 Saw. 156. § 982.] CUSTODY AJSTD S0PPOET OF CHILDREN. 949 for the support does not confer the power to transfer prop- erty to the wife to be held in trust for the children.* The wife may be compelled by the decree to support the children after divorce.^ The court in estimating the amount of ali- mony should consider the rights of the children as para- mount, and may refuse alimony for the reason that the hus- band's income is sufficient for the support of the children only. The custody of the children may be withheld from her by the terms of the decree until she undertakes to com- ply with what is just. In the absence of statute it is held that the court has no power to compel the husband to secure the payment of the maintenance.' But the term " such order as may be just and proper" is broad enough to authorize a court to exercise its discretion as to the security to be given.'' § 982. Support where decree is silent as to custody. — If the decree is silent as to the custody of the children, the liability of the father to the divorced wife for the support of the children is the same as his liability to any other stranger. For upon divorce the obligations of marriage are canceled and the parties become as other strangers. Where the father neither refuses nor neglects to furnish his chil- dren with necessaries, a stranger cannot supply them at his charge.* But he will be liable to a third person for neces- saries furnished to his children if he neglects or deserts them.® It is therefore clear that if the divorced wife sup- 1 Simpson v. Simpson, 80 Cal. 337. secure the payment of the main- But see contra, Doscher v. Blackis- tenance is not thereby released, ton, 7 Or. 403. Miller v. Miller, 64 Me. 484. 2 See form of statute set out in sGottsu Clark, 78 111. 239; Eog- Cheever v. Wilson, 9 Wall. (U. S.) ers v. Turner, 59 Mo. 116. 134; Seatel v. Seatel, 4 Swab. & T. « Dennis v. Clark, 3 Cusli. 353; 230. Parson on Contracts, 353, 354; Gor- 3 Hunt V. Hunt, 8 P. D. 161. don v. Potter, 17 Vt. 348, approved * A decree awarding custody of by Tyler on Infancy, § 65; Stanton the children to the wife and com- r. Wilson, 3 -Day (Conn.), 37 ; Weeks pelling the husband to support the v. Merrow, 40 Me. 151 ; Gill v. Read, cliildren until the further order of 5 R. I. 343; Ruraney v. Keyes, 7 N. the court is not discharged by his H. 571. While this is a much dis- death, and a surety on his bond to puted question, it seems to be most 950 CUSTODY AND SUPPOET OF CHILDEElSr. [§983. ports the children Avithout a decree giving her the custody of them, the husband is liable to her for their maintenance under a contract implied by the law.' But if the husband obtains divorce because the wife has left him, and she re- tains the custody of their child, and the decree is silent as to its custody and support, no contract to pay for its sup- port will be implied."^ This is perhaps the true doctrine of our unwritten law. There are some authorities which hold the husband liable to the wife for the support of the chil- dren W'here the decree is silent as to custody and support, on the ground that his obligation continues and is not dis- charged by divorce.' These cases do not discuss the status of divorced parties or the presumption that the support was voluntary. It is admitted by all that the liability of the husband is not discharged by divorce, but the principle over- looked is his liability to the wife, which, after divorce, is no greater than his liability to any other person. § 983. Support where custody awarded to wife. — Th& father is not liable for the support of his children where the decree has granted the custody of the children to the wife and contains no provision for their support.^ There are several reasons for this. The statute having made it the duty of the court to provide for the custody and mainte- nance of the children on divorce, it will be presumed that the decree has made all the provision that was necessary. The decree is conclusive as to the, mutual rights and obliga- tions of the parties, subject to the right to have such decree modified as subsequent exigencies may require. The di- vorce makes the parties strangers. The father is not liable in accord with established prin- 2 Fitler v. Fitler, 33 Pa. 50. ciples of law to hold the husband * Buckminster v. Buckminster, 38 liable only when he casts his chil- Vt. 248; Courtright u Courtright, dren upon the mercy of others, 40 Mich. 633; Holt v. Holt, 43 Ark. otherwise the stranger, and not 495; Lusk u Lusk, 28 Mo. 91; the parent, can choose what seems Chester v. Chester, 17 Mo. Ap. 657. best for the child. * Harris v. Harris, 5 Kan. 46; iGilley u Gilley, 79 Me. 293;- Chandler u Dye, 37 Kan. 765, 15 P. Maddox v. Patterson, 80 Ga. 719. 935. § 983.] CUSTODY AND SUPPORT OF CHILDREN. 951 to a stranger who furnishes the children with necessaries unless under such circumstances that a contract will be im- plied.' Thus in a recent case the wife was denied remuneration for the support of a child where she had been awarded the custody of the child and the decree was silent as to its support. The husband had obtained a decree of absolute divorce, and the wife had not appealed from that portion of the decree awarding her the custody of the child without providing for its support. Nor had she moved for a modifi- cation of the decree in this respect. It was said, " the law presumes that every question involved in the actionin which the judgment was rendered — and the right of the plaintiff to an allowance for the maintenance of the child was one of those questions — was passed on by the court, and that the ■claim for such maintenance was decided adversely to the plaintiff." ^ Accordingly it is held that the divorced husband is not liable to his divorced wife for necessaries furnished a child in her custody unless by agreement express or impKed.' Under such circumstances her support is the voluntary per- formance of a natural duty.* Her remedy was to apply for maintenance for the children when the divorce was rendered and the custody awarded to her. Even where the husband ■obtains a divorce and the custody of the childi'en is awarded to the wife, the court must make some order ior the support of the children. Where the wife is without sufficient means it is error to make no order concerning the maintenance of the children.* 1 See Shelton v. Springett, 11 C. 2 Rich v. Rich, 88 Hun, 566, 34 N. B. 453, 20 Eng. Law & Eq. 283; Y. Supp. 854. Gordon v. Potter, 17 Vt. 348; White » Ramsey v. Ramseyj 121 Ind. 215, V. Mann, 110 Ind. 74; Schouler, 23 N. E. 69; Cushman ». Hassler,83 Dom. Rel., § 241; Kelly w Davis, 49 la. 295, 47 N. W. 1036; Burritt v. N. H. 186; Porter v. Powell, 79 la. Burritt, 39 Barb. 124. 151. See, also, Finch v. Finch, 32 - * Fulton v. Fulton (Ohio), 39 N. E. ■Conn. 413, as modified by Welch's 739. Appeal, 43 Conn. 342. 5 Tuggles v. Tuggles (Ky.), 30 S. W. 875. 952 CUSTODY AND SUPPOET OF CHILDEEIT. [§ 983.. Another reason for relieving the husband from liability for the support of the children, where the custodj' is awarded to the wife, is that he has no longer the right to take the- child and support it himself or to employ others to support it.i "While the wife has custody of the children by virtue of a decree of divorce the husband is not entitled to their serv- ices, and is therefore not liable for their maintenance ; for the custody of the child and the obligation of support are re- ciprocal rights and obligations.^ Where the custody of the child is awarded to the mother, the presumption is that the court granted all the relief that the circumstances required,, and if the wife desired the husband to support the child her remedy was to have the decree amended by a further order for the support of the child.' It is a question which might have been litigated at the time the custody was awarded. The above reasons are sometimes overlooked, and it is held the decree awarding the custody to the wife does not impair the obligation of the husband to support his children, and therefore he is liable for their support while in her custody,, regardless of whether there is a contract for their support either express or implied.' The leading case which holds the father liable, where the^ wife is allowed alimony and the custody of the children, as- signs as a reason for such holding that upon divorce the attitude of the husband is the same towards his children as though he had deserted them. The court approves the doc- trine that, if a minor is forced into the world by cruelty or improper conduct of the father, necessaries may be supplied and the value thereof may be recovered from the parent. " There is evidently no satisfactory reason," said the court, " for changing the rule of liability when, through ill-treat- ment or other breach of marital obligation, the husband •Brow V. Brightman, 136 Mass. Conn. 410; Hancock v. Merrick, 10' 187. Cush. 41. 2 Husband v. Husband, 67 Ind. 3 Burritt v. Burritt, supra, 583; Johnson w. Onstead, 74 Mich. ^ Plaster v. Plaster, 47 III 290 j 437, 43 N. W. 63; Finch v. Finch, 33 Conn v. Conn, 57 Ind. 833. § 984.J CUSTODY AND SUPPORT OF OHILDEEN. 963 renders it necessary for a court of justice to divorce the wife and commit to her the custody of her minor children. If under such circumstances, upon the allowance of alimony with custody of children, the court omits to make an order for the children's maintenance, the father's natural obliga- tion to support is of none the less force. The duty of sup- port is not evaded by the husband's so conducting himself as to render it necessary to dissolve the bonds of matrimony and give to the mother the care and custody of the infant offspring. It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they are not parties ; or to enable the father to convert his own misconduct into a shield against parental liability." ^ This reasoning can only apply where the hus- band is at fault and the decree is silent as to his liability. But where the divorce is rendered on account of the mis- conduct of the wife the reasons do not apply. The wife, if given the custody of the children, assumes the obligations incident to such custody. " If under these circumstances, where her own misconduct has destroyed the family relation and deprived the father of the custody and society of his children, she has in fact maintained her children, she has no claim, either legal or moral, to demand reimbursement from the father." ^ § 984. The order for custody and support.— It is the duty of the court, on granting a divorce, to protect the in- terest of the state by providing for the custody and support of the children, although there is no prayer for such relief.' The support of the children is paramount to an^ right of the wife to alimony or a division of the property, and should therefore be first calculated and deducted from the income of the husband. The order should provide that a certain 1 Pretzinger v. Pretzinger, 45 729, approving Dedham v. Natick, O. St. 452, 15 N. E. 471, approved in 16 Mass. 135, and Sohouler, Dom. 2 Bishop, Mar., Sep. & Div., § 1223. Eel., § 293. For petition in this case see § 757. ' § 975. 2 Fulton V. Fulton (Ohio), 39 N. E. ■954: ' CUSTODT AND SUPPORT OF CHILDREN". [§ 983. parent or person shall have the custody of the children until the further order of the court, and that the other party shall have reasonable access to the children at certain times; that the husband or wife shall pay to the custodian or a third per- son ^ a certain amount annually or monthly for the support of the child. The order may require security for the payments of this support. And if the interests of the children require, the court may order the child to be kept in a certain place.^ The order may be enforced by habeas corpus or by proceed- ings in contempt.f Or the party entitled to custody may take the child from the other by the use of reasonable force.* This order is a final order and is subject to review under general statutes relating to appeal. But in some states the order is said to be an incident of the decree of divorce and not subject to separate review.* In New York it is a dis- cretionary order not subject to review on appeal.* § 985. When modified. — The order awarding the custody of children may be changed on subsequent application of the parties.'' This power is statutory, and gives the court power to vary the order for custody and support from time to time as the welfare of the children may require.^ The order of the court upon a decree of divorce is binding upon the parties as an adjudication of their rights and as to the 1 An order to pay to a person not 36 N. E. 310. But see contra, Irwin a party to the suit is not void on v. Irwin (Ky.), 28 S. W. 664; Evans this account. Gordon, Ex parte, v. Evans (Ky.), 30 S. W. 605. 95 CaL 374, 30 P. 561. But see con- 6 Price v. Price, 55 N. Y. 656 ; War^ tra, Schammel v. Schammel, 105 ring v. "Warring, 100 N. Y. 570. i Cal. 258, 38 P. 729. ' Umlauf v. Umlauf , 35 111. Ap, 2 May require the child to be kept 624; Umlauf v. Umlauf, 27 111. Ap. in another county. Luck v. Luck, 375; Cowls v. Cowls, 3 Oilman. 435; 93 Cal. 653. Harvey v. Lane, 66 Me. 536 ; Chand- 3 Ex parte Gordon, 95 Cal. 374, 30 ler v. Chandler, 24 Mich. 176 ; Flory P. 651; Nicholls v. NichoUs, 3 Duer, v. Ostrom, 92 Mich. 633, 53 N. W. €42; Buck v. Buck, 60 IIL 105. 1038. ^Monjo u Monjo, 6 N. Y. Supp. ^Ahrenfeldt v. Ahrenfeldt. 4 133. Sandf. Ch. 493. See contra, Crira- 5 Thompson v. Thompson, 5 Utah, mins v. Crimmins, 64 How. Pr. 103, 401, 16 P. 400; Rogers u Rogers (O.), 38 Hun, 200. ' 9S5.] CUSTODY AND STJPPOET OF CHILDREN. 955 welfare of the child at the time the order was made. The power of the court to vary the order deprives other courts of the power to determine the custody in another proceed- ing ; for the divorce court becomes in eif ect the ward of the child, and all applications must be made to this court.' Other courts in the same state have no jurisdiction to vary the order, even if the circumstances would justify it.^ There is a dictum that the court granting divorce is the only court which can vary the order, where the parties and the child are in another state.'' But it seems that the courts of other states having jurisdiction over the parties will proceed to fix the custody of the child as its welfare requires, regard- less of former adjudications. Where the divorce court has made no decree concerning the children, other courts may fix the custody upon evidence of the fitness of the parents.* But the safest course is to apply to the court granting the It is lield in California that the power of the court to modify an order for the custody of a child is iost when th& parent having custody has permitted another to adopt the chUd by regular proceedings in another court. It is held that the proceedings for adoption are in rem, and binding- on both divorced parties, so that the court rendering divorce loses jurisdiction over the child, and can make no further order concerning it.^ The facts which will justify a change of custody must be essentially diilerent from those presented to the court which rendered the decree.^ Facts known to the applicant before the decree of divorce was rendered cannot be shown to ob- tain the custody of the children.' But facts which could not have been discovered with reasonable diligence before the decree may be shown in a supplemental proceeding to change the order.* Ordinarily, the fact that the parent having custody of the child has married again will not be a sufficient circumstance to justify a change of custody,''' but wOl be sufficient if the welfare of the child requires.* Cruelty of the parent and a disposition to require too much labor of the children to the neglect of their education,' or attempts to estrange the child from the other parent, have been held insufficient.^ Where, at the time the divorce was rendered,, the child was of tender years and needed the attention of its mother, it may be shown that the child is no longer in need of a mother's care, and that other considerations will render the custody of the father for the best interests of the child.* The failure to educate the children may justify a change.^* 1 Younger v. Younger (Cal.), 39 s Wand v. Wand, 14 Cal. 513. P. 778. 6 Welch v. Welch, 33 Wis. 534. 2 White V. White, 75 la. 218 ; Reid ' Boggs v. Boggs, 49 la. 190. V. Raid, 75 la. 681; S. r. Bechdel, 37 s Sherwood v. Sherwood, 56 la. Minn. 360; Teter v. Teter, 88 Ind. 608; D'Alton v. D'Alton, 4 P. D. 87. 494; Pfau v. Pfau, 8 Ohio Cir. Ct. 9 Valentine v. Valentine. 4 Halst. R. 87; Irwin v. Irwin (Ky.), 30 S. Ch. 219; Olivers. Oliver, 151 Mass. W. 417. 849. 3 Dubois V. Johnson, 96 Ind. 6. w Snover v. Snover, 13 N, J. Eq. ■tSemrow v. Semrow, 23 Minn. 261. 214 § 985.] CUSTODY AND SUPPCKT OF CHILDREN. 957 It will be sufficient to show that the parent has become dis- solute, or has committed adultery, or , is otherwise immoral and likely to have a bad influence upon the child.' In gen- ■eral, it may be said that any new circumstances which were not before the court when the order was made will be suffi- cient if they show clearly that the welfare of the child re- quires a change of custody.^ The amount awarded for the maintenance of the children is likewise subject to the modification of the court. In this respect the order resembles a decree for alimony, and is sub- ject to the further order of the court as the changed cir- cumstances of the parties may require.' The husband will be relieved of the order for support where the necessity no longer exists, as where the children are old enough to sup- port themselves by their own earnings, or where the wife has acquired ample means since the order was entered.'' iWittv. Witt, 1891 Probate, 163. port be diverted. Lancaster v. 2Flory V. Ostrom, 92 Mich. 622, Lancaster, 39 lU. Ap. 510. 53 N. W. 1038. The order may be 'See Power to change the amount upon the condition that the hus- of permanent alimony, § 934 hand shall be entitled to the child * Greenleaf v. Greenleaf (S. D.)» if the amount ordered for its sup- 61 N. W. 43. ALIMONY WITHOUT DIVORCE. 1000. In general. IQOl. The question as affected by statute. § 1003. When maintenance granted. lOOB. The procedure. § 1000. In general. — It is a controTerted question wbeth'er in the absence of statute a court of equity has jurisdiction to decree separate maintenance to the wife where the hus- band, having sufficient means, has failed or refused to sup- port her. This question has been disposed of in some state* by treating the wife's suit for separate maintenance as a suit for alimony, and holding that alimony is alyays an in- cident to a proceeding for divorce, and therefore such relief cannot be granted in a direct proceeding.^ lYule V. Yule, 10 N. J. Eq. 138; Cory V. Cory, 11 N. J. Eq. 400; An- shutz V. Anshutz, 16 N. J. Eq. 163; Doyle V. Doyle, 26 Mo. 545; Mcln- tyre v. Mclntyre, 80 Mo. 470; De- Graw V. DeGraw, 7 Mo. Ap. 131; Parsons v. Parsons, 9 N. H. 309; Bowman v. Worthington, 34 Ark. 533; Ross v. Boss, 69 111. 569; Trot- ter V. Trotter, 77 111. 510; Carroll v. Carroll, 43 La. An. 1071; Holbrook V. Holbrook, 33 La. An. 13; Moore V. Moore, 18 La. An. 818; Heyob v. Her Husband, 18 La. An. 41 ; Moon V. Baum, 58 Ind. 194; Fischli v. Fischli, 1 Blackf. 360; Perkins v. Perkins, 16 Mich. 163; Peltier v. Peltier, Harring. (Mich.) 19; Trevino V. Trevino, 63 Tex. 650. In an early case of first impres- sion the wife applied for main- tenance out of funds due her from her father's estate, and alleged that the husband had deserted her be- fore her father's death and re- turned to her for the sole purpose of receiving her share of the estate and had since deserted her. Coun- sel for the wife contended that a court of equity had jurisdiction on the ground of fraud, trust and the prevention of injustice. After an exhaustive review of the English authorities the court found no exact precedent, and held that the jurisdiction exercised by the coui't of chancery in England in such cases is not founded on the basis of trust or fraud, but is a branch of equity connected with the power to enforce a settlement upon her out of her estate, and was origi- § 1000.] ALIMONY WITHOUT DIVOECB. 959' These authorities do not discuss the question of the juris- diction of a court of equity to grant relief where there is no adequate rcmed}' at law, but seem to have overlooked this proposition. The cases cited are not, therefore, authorities denying such jurisdiction to courts of equity. The common- law alimony was undoubtedly an incident to a suit for divorce in its true and technical meaning. "Where the statute bas provided certain instances in which the wife is entitled to alimony without a divorce, the courts have declined to grant alimony in all cases which do not fall within the statute. The rule exjpressio imius est exolusio alterius was not applied. The courts do not base their decision on a construction of the statute, but have denied the wife's application on the ground that alimony is always an incident of divorce unless the statute provides otherwise. Thus, in New Jersey, the courts are authorized to grant alimony where the husband, Avithout any justifiable cause, deserts the wife or refuses or neglects to maintain and provide for her, and it is held that the power to grant this kind of relief is confined to the cases mentioned in the statute.' These cases are followed in Mis- souri under a similar statute.^ The statute of Illinois author- izes the court to grant alimony to the husband where the wife is living apart from her husband without her fault. nally exercised only where thehus- courts have said by way of dictum band sought the aid of a court of that alimony is always an incident equity to gain possession of his to the suit for divorce. Bowman wife's property. It was also held v. Worthington, 24 Ark. 523; Moon that the jurisdiction conferred by v. Baum, 58 Ind. 194; Perkins v. statute in cases of fraud and trust Perkins, 16- Mich. 162; Peltier v. did not empower the court to de- Peltier, Harring. (Mich.) 19. cree the wife, on her application, a ' Yule v. Yule, 10 N. J. Eq. 138, sum for her maintenance out of followed in Cory v. Cory, 11 N. J. her equitable property, although Eq. 400, and Anshutz v. Anshutz, such property was in the hands of 16 N. J. Eq. 162. an administrator as a distributive ^ Doyle v. Doyle, 26 Mo. 545, f ol- share of the estate. Parsons v. lowed in Mclntyre v. Mclntyre, Parsons, 9 N. H. 309 (1838). 80 Mo. 470, De Graw v. De Graw, In suits involving the effect of 7 Mo. Ap. 121. decrees of alimony and divorce the 960 ALIMONY -WITHOtTT DIVOEOE. [§ 1000. The object of the statute is said to be to remedy the defect of the common law which did not enforce the duty of the husband to support the wife until she had purchased neces- saries on his credit, and was intended as a remedy in all cases where she would be justified in obtaining such support on the credit of the husband at the common law. It is held that relief will not be granted in cases not within the stat- ute because a court of equity has no jurisdiction in such cases.^ The statutes of Texas and Louisiana do not permit a suit by the wife for maintenance.^ But the relief asked for is maintenance without a divorce. The real question is, Can such .relief be granted the wife without divorce, when the statute has provided that she may have that relief with divorce ? ^ The weight of the most care- fully considered authorities is that such relief can be granted by a court of equity on the ground that there is no adequate remedy at law. The reasons upon which this doctrine is based will be stated at some length, as the question has not been fully discussed in any work on this subject. In the various editions of his work, Mr. Bishop has denied the jurisdiction of courts of equity to grant this relief. The reason assigned by him was that " in England, whence we derive our laws, neither the equity tribunals nor any other had the jurisdiction when this country was settled. If we assume that equity had it during the commonwealth, it did not afterward. Our ancestors brought with them the laws of the mother country as they were at the date of the emi- gration, not at a previous date. They did not transfer hithei* what in England had then no existence. If the ecclesiastical courts had exercised this jurisdiction there would be a show of reason for saying that, as we have no such courts, equity may take it. But even this argument is done away with by 1 Koss V. Boss, 69 111. 569; Trotter 1071; Holbrook v. Holbrook, 33 La. V. Trotter, 77 III. 510. An. 13. 2 See Trevino v. Trevino, 63 Tex. ' See on this point the conclusion 650; Heyob v. Her Husband, 18 La. reached in Edgerton v. Edgerton, An. 41; Moore v. Moore, 18 La. An. 12 Mont. 133, 39 P. 967. 613; CarroU v. Carroll, 43 La. An. § 1000.] ALIMONY WITHOUT DIVOEOE. 961 the uniform holding of our tribunals that, in the absence of ■ecclesiastical courts, equity cannot perform their divorce functions. Moreover there is no one head of equity jpower to which hy analogy this can be said to "belong. Again, let the reader notice the peculiarity of this proceeding. A divorce from bed and board given to the wife concludes with the same decree for alimony which this proceeding does. But it also contains a finding and a judgment, not that the mar- riage is dissolved, but that she who is to be alienated is entitled, by reason of the fault of the other party, to Live in separation. In the proceeding under consideration, a court acknowledging itself without power to adjudicate the right to live in separation — for that would be simply and exactl}'' to pronounce a divorce from bed and board — undertakes to make a permanent order for alimony. And yet, as a foun- dation for the order, it passes upon the very question of right which it admits not to be withia its jurisdiction, and which, therefore, it does not reduce to record." ' This reasoning has not found favor with our courts where the question has since arisen. In many well-considered cases it is held that courts of equity do have the power to adjudicate the right to live in separation, and that such courts have jurisdiction to grant relief in such cases on the ground that there is no ade- quate remedy at law, and to prevent multiplicity of suits.^ The deserted wife may obtain necessary support by pur- chasing supplies on her husband's credit, and these creditors may each recover from the husband. But this is not an adequate remedy, and involves the husband in numerous 11 Bishop on Mar., Sep. & Div., Bland (Md.), 544; Anonymous, 1 § 1400. See same, Mar. & Div., Hayw. (N. C.) 347; Earle v. Earle, 856 (1681). 27 Neb. 377, 43 N. W. 118 ; Bueter v. 2 Garland v. Garland, 50 Miss. Bueter, 1 S. Dak. 94, 45 N. W. 208; 694; Galland v. Galland, 38 CaL Edgerton v. Edgerton, 13 Mont. 365; Butler v. Butler, 4 Litt. (Ky.) 122, 29 P. 967. 203; Purcell v. Purcell, 4 H. & M. In addition to these leading cases (Va.) 507; Lockridge v. Lockridge, see, also, as following the above: 3 Dana, 28; Graves v. Graves, 36 Alabama: Glover v. Glover, 16 la, 310; Helms v. Franciscus, 2 Ala. 440; Hinds v. Hinds, 80 Ala, 61 962 AUMONT •WITHOUT DIVOKCE. [§ looa.. suits. The wife is generally unable to purchase goods under the circumstances, for the creditor is reluctant to give credit where he will become involved in a suit in which he must prove the reasonable value of his goods, and also that ther wife had good cause in separating from her husband. This relief is also inadequate, because the husband may escape his liability by fraudulently disposing of his property, or re- moving it beyond the jurisdiction of the court. The inade- quacy of this common-law remedy is apparent from the number of states which have provided for a direct proceed- ing against the husband for support.^ The wife cannot in 235; Wray v. Wray, 33 Ala. 187; Murray v. Murray, 84 Ala. 363. Arkansas : Wood v. Wood, 54 Ark. 173, overruling Bowman v. Worth- ington, 24 Ark 533. Colorado: Daniels v. Daniels, 9 Colo. 133. District of Colnmbia: Cheever V. Wilson, 6 Dist. Col. 149; Shaw v. Shaw, 23 Wash. L. Eep. 77; Tolman V. Tolman, 1 App. D. C. 299. Iowa: Finn v. Fiiin, 63 la. 483; Farber v. Farber, 64 la. 363; Plat- ner v. Platner, 66 la. 378; Whit- comb V. Whitoomb, 46 la. 437; Simpson v. Simpson (la.), 59 N. W. 23. Kentucky : Boggess v. Boggess, 4 Dana, 307; Woolridge v. Lucas, 7 B. Mon. 49; Hulett v. Hulett, 80 Ky. 364; Arnold v. Arnold, 14 S. W. 376. Maryland : Fornshill v. Murray, 1 Bland, 479; Macnamara's Case, 3 Bland, 566; Scott's Case, 3 Bland, 568; Govane's Case, 3 Bland, 570; Wallingsford v. Wallingsford, 6 Har. & J. 485; Wiles v. Wiles, 8 Md. 1; Jamison v. Jamison, 4 Md. Ch. 289; Wright v. Wright, 3 Md.429; Hewitt V. Hewitt, 1 Bland, 101; Crane v. Meginnis, 1 Gill & J. 463; Dunnock v. Dunnock, 3 Md. Ch. 140. : Mississippi : Vemer v. Verner, 63^ Miss. 260; McFarlandu McFarlaK'df 64 Miss. 449. North Carolina: Knight v^ Knight, 2 Hayw. 101 ; Spiller u Spil- ler, 1 Hayw. 482; Hodges v. Hodges, 82 N. C. 133. Khode Island: Batty v. Batty, 1 E. I. 313. South Carolina: Jelineau v. Jel- ineau, 3 Des. 45; Briggs v. Briggs^ 34 S. C. 377; Prather v. Prather, 4 Des. 33; Mattison v. Mattison, 1 Strob. Eq. 387; Three wits v. Three- wits, 4 Des. 560 ; Prince v. Prince, 1 Rich. Eq. 382; Rhame v. Ehame, 1 McCord Eq. 197. Tirginia: Purcell v. Purcell, 4 H. & M. 507; Almond v. Aknond, 4 Rand. 663. See, also, similar cases in foreign countries: Severn v. Severn, 3 Grant (U. C.) Ch. 431; Soules v. Soules, 3 Grant (U. C.) Ch. 399; Wood V. Wood, 1 Manitoba, 317; Weir v. Weir, 10 Grant, 565; Howey V. Howey, 37 Grant, 57. 1 See Ross v. Ross, 69 111. 569. § 1000.] ALIMONY WITHOUT DIVOECE. 963 this country procure a restitution of conjugal riglits. And it has been decided* that the writ of supplicavit is not a proper remedy in such cases.' In an early case it was said : " It is clear that strong moral obligations must lie on the husband, who has abandoned his wife, to support her. The marriage contract, and every principle, binds him to this. If he fails to do it, it is a wrong acknowledged by common law, though the law knows no remedy, because the wife can- not sue the husband; but in equity the wife can sue the hus- band; and it is the province of the court of equity to afford the remedy where conscience and law acknowledge the right but know no remedy." ^ "VYe have no English precedent in which this relief was granted by the chancery court ; but it seems that this court took cognizance of other cases concerning marital rights, such as controlling the wife's separate property, and de- voting it to her separate maintenance where the husband had so conducted himself as to justify her living in separa- tion, and restraining the husband by the writ ne exeat from quitting the kingdom to evade the payment of an allowance. In his work on Equity Jurisprudence, Judge Story says : " In America a broader jurisdiction in cases of ahmony has been asserted in some of our courts of equity ; and it has been held that if a husband abandons his w4fe, and separates himself from her without any reasonable support, a court of equity may in all cases decree her a suitable maintenance and support out of his estate, upon the very ground that there is no adequate or suificient remedy at law in such a case. And there is so much good sense and reason in this doctrine that it might be wished it were generally adopted." It must not be overlooked that the statutory delegation of power to courts of equity varies in our states, and that in some instances the court may reach different conclusions on this question. 1 Adams v. Adams, 100 Mass. 365. land v. Galland, 38 Cal. 265; Earle 2 Butler V. Butler, 4 Litt. (Ky.) v. Earle, 27 Neb. 277; Bueter v. 203, cited with approval in Gal- Bueter, 1 S. Dak. 94, 45 N. W. 208. 964 ALIMOHT "WITHOUT DITOECE. [§ 1000. Mr. Bishop objects to courts of equity granting this relief, because such courts have no power to determine that the wife is living separate from her husband for justifiable cause, and that such finding is in effect a decree for separation. But it must be remembered that the common-law courts had to determine the same facts when the creditor, sued the hus- band for the wife's support.^ A similar instance is where the validity of a marriage is in question. Such controversy does not deprive either the courts of equity or common law of jurisdiction to determine the validity of a marriage as an incident to the enforcement of some right, although no de- cree of annulment could be entered. It would seem that a court would have the power to decree separate maintenance although in doing so it will determine that the separation is lawful. The jurisdiction of our modern courts of equity would seem to be beyond question in states where the distinction between law and equity is declared by statute to have been abolished, and also where jurisdiction of divorce has been conferred upon courts of equity. But in almost every state it would seem that courts of equity would have jurisdiction on the ground that there was no adequate remedy at law and to prevent multiplicity of suits. Jurisdiction was based on this ground in Iowa in a well considered case in which the main question involved was the jurisdiction of the court. On this point it was said : " That a husband is bound, both in law and in equity, for the support and maintenance of his wife is a proposition hitherto and now undisputed. If by his conduct he makes it unsafe, or by entertaining others there he makes it immoral for her to remain at his home, she may leave it and him and carry with her his credit for her maintenance elsewhere. So that in such case a victualer, a merchant, a dressmaker, a milliner, or any dealer in the necessaries of life, may severally supply the wife with arti- cles needful and proper in her situation, and may respect- 1 See reasoning in Edgerton v. Edgerton, 13 Mont. 123, pages 143, 143. ~ § 1001.] ALIMONY WITHOUT DIVORCE. 965 ively maintain their action against the husband for their value. This remedy the law affords. But this involves mul- tiplicity of suits ; and besides the remedy is by no means adequate. The wife may find it difficult, if not impossible, to obtain a continuous support in this way, since such dealers and professional men would be unwilling to supply their articles or services if thus compelled to resort to litigation in order to secure their pay. Here then is a plain legal duty of the husband, for the violation of which no adequate rem- edy, even with a multiplicity, can be had except in a court of equity. Upon the ground of avoiding a multiplicity of suits, or on the ground that no adequate remedy can be had at law, a court of equity may properly base its jurisdiction in such cases." ^ The doctrine announced in this case seems to be correct, and has been followed in Iowa and approved elsewhere.^ § 10()1. The question as aifected by statutes. — In many of the states where the courts have denied the power to grant separate maintenance the jurisdiction has been con- ferred by statute. These statutes are not uniform, but pro- vide in substance that the court may decree separate main- tenance where the husband has been guilty of desertion and failure to support. A reference to the cases where such statutes have been interpreted and enforced may be useful.' It is the object of such statutes to give the wife a sure 1 Graves v. Graves, 36 la. 310. In selves to our judgment. This rea- this case the husband deserted the soning seems to us logical and safe, wife, procured a void decree of di- and their conclusions in harmony vorce and was living in adultery with the present legal status of with another woman, and had married women. A denial of such neglected to support his wife. jurisdiction would seem to expose 2Earle v. Earle, 27 Neb. 277. In the law and the courts to the just Bueter v. Bueter, 1 S. Dak. 94, 45 criticism of having squarely as- K. "W. 208, the above cases are re- serted the wife's right to support viewed, and it was said: "These from her husband, yet denying her cases, while possibly not in line a remedy when such support is re- with the prevailing current of ju- fused." dicial decisions, either in England 3 California: Civil Code, 136; or this country, commend them- Hagle v. Hagle, 68 Cal. 588; Hagle vm ALIMONY WITHOUT DIVOECE. [§ 1001, and speedy remedy whenever the husband fails to perform his legal duty, instead of leaving her right to be wrought out through a third person, as at common law. These stat- utes are remedial, and should be construed to give the wife V. Hagle, 74 dal. 608; Hardy v. Hardy, 97 Cal. 125, 31 P. 906; Peyre V. Peyre, 79 CaL 336. Georgia: Clark v. Clark, 78 Ga. 79; Gardners. Gardner, 54 Ga. 560; McGee v. McGee, 10 Ga. 477; Glass V. Wyn, 76 Ga. 319; Hawes v. Hawes, 66 Ga. 142; Lamar v. Jen- nings, 69 Ga. 393. Illinois: Ross v. Ross, 69 111. 569; Wahle V. Wahle, 71 111. 510; Farrell V. Farrell, 28 111. Ap. 37; Fountain V. Fountain, 83 111. Ap. 539; O'Brook V. O'Brook, 32 111. Ap. 149; Houts v. Houts, 17 lU. Ap. 439; Jenkins V. Jenkins, 104 111. 134: Cooper v. Cooper, 4 111. Ap. 285; Tureman v. Tureman, 4 111. Ap. 385; Johnson V. Johnson, 125 111. 510; Umlauf v. IXmlauf, 9 111. Ap. 517, 117 111. 580; Hunter v. Hunter, 7 111. Ap. 253; lOemme v. lOemme, 37 111. Ap. 54. Indiana: Walter u "Walter, 117 Ind. 247; Harris v. Harris, 101 Ind. 499; Carr v. Carr, 6 Ind. 377, 33 N. E. 805; Chapman v. Chapman, 13 Ind. 396; Hallett v. Hallett (Ind.), 34 N. E. 740. Massacliusetts : Smith v. Smith, 154 Mass. 262; Blackinton v. Blaok- inton, 141 Mass. 432; Silverman v. Silverman, 140 Mass. 560; Doole v. Doole, 144 Mass. 278; Watt v. Watt, 160 Mass. 464, 36 N. E. 479. Michigan : Russell v. Russell, 75 Mich. 572; Tobey v. Tobey, 100 Mich. 54, 58 N. W. 629; Chaffee v. Chaffee, l5 Mich. 184. Missouri: Dwyer v. Dwyer, 26 Mo. Ap.^653; Spengler v. Spengler, 38 Mo. Ap. 266; Lindenschmidt v. Lindenschmidt, 29 Mo. Ap. 295; Neviiion v. Newton, 83 Mo. Ap. 162; McGrady v. McGrady, 48 Mo. Ap. • New Jersey : Anshutz v. Anshutz, 16 N. J. Eq. 162; Walling v. Wall- ing, 16 N. J. Eq. 389; Davis v. Davis, 19 N. J. Eq. 180; Cory v. Cory, 11 N. J. Eq. 400; Begbie v. Begbie, 7 N. J. Eq. 98; Martin v. Martin, 8 N. J. Eq. 563; Starkey v. Starkey, 21 N. J. Eq. 135; Ballentine v. Bal- lentine, 5 N. J. Eq. 471; Boyce v. Boyce, 23 N. J. Eq. 337, 24 N. J. Eq. 588; McEwen v. MoEwen, 10 N. J. Eq. 286; Shinn v. Shinn, 51 N. J. 78, 24 A. 1022; Elliott v. Elliott, 48 N. J. 231; O'Brien v. O'Brien, 23 A. 1073; Fairchild v. Fairohild, 43 N. J. Eq. 473, 11 A. 426. New York : Eamsden v. Ramsden, 91 N. Y. 281; Douglas v. Douglas, 5 Hun, 140; Davis i). Davis, 1 Hun, 444; Euckman v. . Ruckman, 58 How. Pr. 278 ; Atwater v. Atwater, 36 How. Pr. 431 ; Pomeroy v. Wells, 8 Paige, 406; P. v. P., 24 How. Pr. 197. North Carolina: Hodges v. Hodges; 82 N. C. 123; Cram v. Cram (N. C), 21 S. E. 197. North Dakota: Bauer v. Bauer, 2 N. Dak. 108, 49 N. W. 418. Ohio : Woods v. Waddle, 44 O. St. 449; Dailey v. Dailey, Wright, 514; Questel v. Questel, Wright, 491; Bascom v. Bascom, Wright, 633. PennsylTania: Appeal of Nye, 136 Pa. 341, 17 A. 618. ^lOOl.j ALIMONY ■WITHOUT DIVOEOE. 96T a right of action wherever she is justified in living in sepa- ration.i The statutes contemplate a suit in equity and are constitutional, although they contain no provision for a trial by jury .2 The question has been considered as one of jurisdiction of courts of equity, and it remains to inquire whether, under th^ statutes, suph relief is, not prohibited by implication or by express provision; and whether a decree of separation will not be an adequate remedy. In all the states where courts of equity have exercised this jurisdiction the statutes have provided for ahmony or a suitable maintenance after a decree of divorce.' It has. been contended that where the statute provides for alimony when a divorce is granted, this impliedly negatives the power to grant such relief in other cases. But in every case where such interpretation was in- sisted upon, the courts have held that such provisions do not prohibit the court from granting the same relief with- out divorce.* The maxim exjpressio unius est exolusio alterius has no application to this class of cases.' In a well consid- ered case it was held that the legislature, in enacting such provision, did not intend to relieve the deserting husband from liability to support his wife. " If this provision im- l)lied that the obligation could only be enforced by first dis- solving the bonds of matrimony, the law would be open to the charge that it was so framed as to encourage divorces; for the wife who kept faith with the marriage vows might be driven by privation, in some cases at least, to release the husband from the bonds of matrimony, in order to obtain relief from penury and want. Such a construction of the legislative intent would make the statute provide, in effect, Tennessee: Nicely v. Nicely, 40 ^Bigeiow v. Bigelow, 130 Mass. Tenn. 184; Richardson v. Wilson, 330. 8 Yerg. 67. ' See cases aflSrming the right to Vermont : Morse v. Morse, 65 Vt. decree alimony without divorce. 112; Danville v. "Wheelock, 47 Vt. ^Galland v. Galland, 38 Cal. 265; .57. Earle v. Earle, 27 Neb. 277; Bueter 1 "Weigand v. "Weigand, 41 N. J. v. Bueter, 1 S. Dak. 94, 45 N. W. 208. Eli. 303. ' Galland v. Galland, 38 Cal. 365. 968 ALIMONY WITHOUT DIYOECE. [§ 1002. that in case a wife was driven away or deserted, and left without means of support, she must wait (the statutory period), and in the meantime suffer in destitution, or suffer the humiliation of becoming a public charge, or seek relief through friends or strangers, before she could call upon a. court to grant her a divorce, and then compel the offending husband, out of his substance, to fulfill his obligation to sup- port her; at which time the derelict husband may have placed himself and property beyond the reach of the court,", at least he would, in such case, be given ample opportunity to do so." 1 Where the statute provides that in an action for divorce the court may grant alimony although a decree is refused, it is held that such provision authorizes the court to grant separate maintenance in an independent proceeding.^ This construction is clearly erroneous, as it is apparent from the context that only proceedings for divorce were contem^ plated, and so this statute is construed in I^few York.' Such provision does not prevent a court of equity from granting relief in an independent proceeding, as it has no reference to such proceeding.* The fact that the same relief may be obtained by a de- cree of separation and alimony has been held a sufficient reason for denying separate maintenance.' But the decree- for separation changes to some extent the status of the par- ties and exceeds the relief desired. The wife may not desire- a separation, but maintenance until a reconciliation can be effected. This question is not discussed in the authorities^, but the relief is granted in many states where the wife could have obtained a decree of separation. § 1002. When maintenance is granted. — This suit pro- ceeds upon the liability of the husband for the support of iHarwood, J., in Edgerton v. 281; Douglas v. Douglas, 5 Hun, Edgerton, 13 Mont. 133, 39 P. 969. 140, and cases cited. -Nicely v. Nicely, 40 Tenn. 183. ^Earle v. Earle, 37 Neb. 377. 3 Eamsden v. Kamsden, 91 N. Y. ^ ggg dictum in Adams v. Adams,. 100 Mass. 365. § 1002.] ALIMONT "WITHOUT DIVORCE. 96?^ his wife, and the gist of the action is the failure to support. The husband is not liable in this action if he offers to sup- port the wife at home. But such offer may be refused by the wife if the husband is guilty of some misconduct which is a cause for divorce, in which case she may refuse such offer and recover from the husband. In this respect the suit follows the common-law liability of the husband for tlie goods sold to the wife. He is liable if he drives her away from the home by his misconduct, but not if she vol- untarily deserts him. Cruelty which would entitle her to a decree of separation will justify her in living apart from her husband and render him liable for her support.' And it is clear that the wife is justified in separating from her husband where he is living in adultery.^ To determine when the wife is not justified in leaving her husband, reference may be had to the general laAV of desertion, which need not be repeated here. The proceeding in equity is to deter- mine that the wife is destitute, and is justified in living" apart from her husband, and that the husband has mean& or ability to support her. The question of the lawful sepa- ration wiU not arise unless the husband pleads that he is willing to support the wife if she will return. Under some statutes, however, the court must find that the wife is jus- tified in living apart from her husband or that he is guilty of s^me cause for divorce.' As a general rule the relief is- granted where the wife is destitute and is deserted or is jus- tified in li"ving in separation.* The desertion must be with- 1 Lockridge v. Lockridge, 3 Dana, Hardy v. Hardy, 97 Cal. 125, 31 P, 28; O'Brock u O'Brook, 32 111. Ap. 906; P. v. P., 24 How. Pr. 197^ 149; Hunter v. Hunter, 7 IlL Ap. Euckman v. Ruokman, 58 How, 253; McCahill v. McCahill, 71 Hun, Pr. 278; Douglas v. Douglas, 5 Hun^ 224, 25 N. Y. Supp. 221. 140; Peyre v. Peyre, 79 Cal. 386^ 2 Graves v. Graves, 36 la. 310; Chaffee u Chaffee, 15 Mich. 184. Briggs V. Brlggs, 24 8. C. 377; ^As to the nature of the deser- Prather v. Prather, 4 Des. 33; "Wei- tion see Johnson v. Johnson, 125 gand V. "Weigand, 41 N. J. Eq. 202, 111. 510; Seelye v. Seelye, 45 111. Ap. and cases cited. 27; Ross v. Ross, 69 111. 569; An- 3Hagle V. Hagle, 74 Cal. 608; gelo u Angel o, 81 111. 251; Speng- 970 ALIMONY WITHOUT DITOKOE. [§ 1002. out legal justification, but the wife is entitled to relief be- fore the desertion has continued the statutory period. In many of the states this relief must be granted accord- ing to the provisions of the statute; but where the relief is granted by a court of equity, because there is no adequate remedy at law, the court may proceed upon the general principles which goyern the law of divorce in determining whether the wife is in fault, and whether the husband is guUty of desertion and failure to support. A reference to a iew leading cases may be useful here to illustrate the prin- ciples which govern the right to separate maintenance in the absence of statute. In a leading case the parties had resumed cohabitation after they had entered into articles of separation. The husband again withdrew from the wife, leaving her a house and lot and some unproductive property, xind caused a notice to be published in the papers warning aU persons to refuse credit to his wife on his account. This notice prevented her from obtaining goods and left her destitute. The husband refused all assistance and refused to live with her, and insisted that she obtain a divorce from him on account of his desertion, but the wife hoped a recon- ciliation and reunion would take place and refused to apply for a divorce or a decree of separation. It was held that -the wife was entitled to separate maintenance, although it does not appear that the wife was entitled to a. decree for .desertion.^ In another case the husband drove the wife from the house ^nd refused to cohabit with her without cause. He provided a monthly allowance for the wife and child, but such allowance ler u Spengler, 38 Mo. Ap. 266; 694. The fact that the parties have Fountain v. Fountain, 33 111. 529; entered into articles of separation Bueter v. Bueter, 1 S. Dak. 94, 45 is not a defense unless the husband N. W. 308; Van Duzer v. Van can prove that the provision made Duzer, 70 la. 614^ Meeker v. Meeker for the wife is just and adequate. coming thp widow of the husband. During the life of the husband the wife's interest in this insurance is non^vested^ and inchoate. If, before the death of the husband, the mar- riage is dissolved by divorce, the wife loses all claim to the insurance, for she cannot become the widow of the insured. The beneficiary association must comply with the statute- under which it was organized ; and if it requires the money to be paid to the widow of deceased, or to families of de-^ ceased members or their heirs, the divorced wife^is not en- titled to any part of the fund.' § 1029. Name of wife after divorce. — After marriage custom confers the husband's surname upon the wife. This name she may retain through life, although the marriage is- subsequently dissolved by death or divorce. If the marriage is annulled and declared void from the beginning, the sup- posed or reputed wife will have no right to the surname after such decree. A dissolution of the marriage does not affect the right of the wife to resume her maiden name, as- at common law a person may assume any name which will not interfere with the rights of others. In an action for damages for breach of marriage promise a divorced woman was permitted to sue in her maiden name. " The plaintiff," it was said, " had procured a divorce from, a bad husband and judiciously dropped his bad name and resumed that given by her parents. It was in effect the re- sumption of her original name by operation of law, rather iConn. Mutual Life Ins. Ca v. » Tyler w. Odd Fellows, 145 Mass. Schaefer, 94 U. S. 457. 134; Am. Legion of Honors Smithr 2 Johnson v. Van Epps, 14 HL 45 N. J. Eq. 466. Ap. 201. § 1030.] DEOEEES OF DIVOEOE. 995 than choice or fancy. ... Its dissolution restored her former rights, one of which was the liberty of bearing her family name, and this privilege she has seen fit to exercise." ' It is clear that a divorced woman may at common law as- sume her maiden name.* It is also held that she may assume a different name without divorce.' The power to change the wife's name when the decree is rendered is sometimes regulated by statute.* § 1030. Curtesy and husband's interest in the wife's property after divorce. — An estate by curtesy is the inter- est to which the husband is entitled upon the death of the wife, in the lands or tenements of which she was seized in possession, in fee-simple, or in tail, during their coverture,, provided they had lawful issue born alive which might by possibility inherit the estate as heir to the wife. It is said that when a man marries a woman seized of an inheritance,, and has by her issue born alive, capable of inheriting the estate, on her death he holds the lands for life, " as tenant by the curtesy of England." The requisites to this estate are a legal marriage, an actual seisin or possession in the wife, issue born of the marriage, and the death of the wife. Dur- ing the life of the wife the estate is initiate and non-vested. If, before her death, the marriage is dissolved, the estate ceases, under the rule that all non-vested interests of the married parties cease upon the dissolution of the marriage.* 1 Rich V. Mayer, 7 N. Y. Supp. 69. 325; Barber v. Root, 10 Mass. 360; 2 Fendall v. Goldsmid, 3 P. D. 263. Renwick v. Renwick, 10 Paige, 420 ; 3 Clark V. Clark, 19 Kan. 523, cit- Schuster v. Schuster, 93 Mo. 438, 6 ing In re Smock, 3 Hilt. (N. Y.) S. W. 359; Cull u Brown, 5 Blackf. 566; Cooper v. Burr, 45 Barb. 9; 309; Moran r;. Somes, 154 Mass. 300, Goodenow v. Tappan, 1 O. 61. At 28 N. E. 153; Wood. v. Simons, 20 common law a man may rightfully Mo. 363; Highley v. Allen, 3 Mo. change his name, and is bound by Ap. 521; Dunham v. Dunham, 128 contract in his adopted or reputed Mass. 34; Arrington v. Arrington, name. Linton v. Bank, 10 Fed. 102 N. C. 491; Boykin v. Rain, 38 894. Ala. 332; Starr v. Pease, 8 Conn. * Converse v. Converse, 9 Rich. 541; Howey v. Goings, 13 111. 95; Eq. 535-570. Hinsman v. Bush, 84 Ala. 368; Por- 5 Wheeler v. Hotchkiss, 10 Conn, ter v. Porter, 27 Gratt. 599; Blaker 990 DECEESS OF DIVOKCE. [§ 1030. The husband's title results from the marriage, and his title ceases with a dissolution of the marriage " as certainly and as effectually as it would have terminated by his death." ' If the husband survives the wife after divorce against either party, he is not a widower, and is not entitled to any part of her estate unless by virtue of some statute changing the common law and giving him that right. So far as her es- tate is concerned, a divorce operates as the death of the hus- band.^ This rule is not changed by the fact that children have been born and the husband is liable for their support. " The death of the wife," it is said, " is one of the four es- sential requisites to constitute a tenancy by the curtesy." And if she obtains a divorce before her death the estate does not exist.* After divorce the wife is entitled to the immediate possession of her property.* But this rule is sometimes changed by statutes which V. Cooper, 7 S. & R. 500; McGrath V. Penn. Life Ins. Co., 8 Phila. 113; Hays V. Sanderson, 7 Bush, 489; Townsend v. Griffin, 4 Harring. (Pel.) 440; Oldham v. Henderson, 5 Dana, 254; Burt v. Hurlburt, 16 Vt. 292; Mattock v. Stearns, 9 Vt. 336; Wright v. Wright, 3 Md. 439; Clark V. Slaughter, 38 Miss. 64: Davis V. Davis, 68 N. C. 180; Sellars V. Davis, 4 Yerg. 503. A husband v?ho acquires prop- erty as trustee for the wife has no interest in her real and personal property so held if the wife ob- tains a diyorce. Schoch's Appeal, 33 Pa. 351. Where a wife obtained a divorce and afterwards inherited slaves, the husband has no interest in them. After divorce she is en- titled to all choses in action not previously reduced into possession by him as if she survived him. Wood V. Simmons, 30 Mo. 363. Where a husband has a right under a statute to the use of slaves held by the wife, such right is ter- minated by a divorce obtained by the wife. Suchright, being founded on the continuance of the marriage relation, ceases when the marriage is dissolved by death. Clark v. Slaughter, 38 Vt. 64; By a decree in equity the hus- band and wife were to receive cer- tain proportions of a fund arising from, the sale of land belonging to the wife. The payments were to be received during their "joinf lives." JJeZd, that the husband was not entitled to any payments after the wife obtained a divorce. High- ley V. Allen, 3 Mo. Ap. 531. 1 Hayes v. Sanderson, 7 Bush, 489. 2 l^tarr v. Pease, 8 Conn. 541. 3 Wheeler v. Hotohkiss, 10 Conn. 235. * Dunham v. Dunham, 138 Mass. 34. § 1031. J DECREES OF DIVOECE. 997 either expressly or by inference preserve the right of curt- esy after a divorce for the wife's fault. In Illinois this right is held to be preserved by a statute providing that a wife shall not forfeit dower unless the divorce be for her fault, and that " when a divorce is obtained for the fault and misconduct of the husband, he shall lose his right to be tenant by the curtesy in the wife's lands, and also any es- tate granted therein by the laws of this state." ' This con- struction was said to be in conformity to the rule E.q)res- sio unius exclusio alterius. The legislature, by providing a forfeiture of the estate on divorce for his fault, intended to preserve such estate in all other cases.^ § 1031. Uoniestead. — A homestead is a family residence. As a law term the word denotes a family residence "owned, occupied, dedicated, limited, exempted and restrained in alienability as the statute prescribes."' The wife has an interest in the homestead, but it is not a vested interest which will continue after a dissolution of the marriage. During the life of her husband and the continuance of the marriage, she has. a right to possession of the property with her husband. If she is guilty of misconduct which is a cause for divorce, the husband may expel her from the residence. She has no right to remain at the homestead if the husband establishes the home elsewhere. Since the homestead estate is the creature of statute, and the family have rights in it, these rights cannot be divested in any other way than au- thorized by statute. Generally the husband is restrained from conveying the homestead without the consent of the wife. She cannot convey or incumber the homestead with- out his consent. It will be seen, therefore, that the interest of the wife in the homestead is a mere right of possession and immunity from alienation without her consent. It is not an estate or title, or even an inchoate interest that may iMeacham v. Bunting (111.), 41 cases this construction is errone- N. E. 178. ous. See Wood v. Wood in § 102(>. 2 If the legislature believed the 3 Waples, Homestead and Exemp- estate would continue in all other tion. 'Q9i DEOKEES OF DIVOEOE. [§ 1031. ripen into an estate, and therefore is not a vested interest. When the marriage is dissolved, the wife has no interest in, the homestead, the title to which is in the husband's name.' If the title to the homestead is in' the wife when the divorce -is granted, the husband has no title or right to possession of the homestead after the marriage is dissolved.^ And the wife can convey the title to the same without the husband joining in the deed.' If the decree is sUen't as to the title of the homestead the presumption is that the court in adjusting the property rights of the parties permitted the title ' to remain undis- turbed. The holder of the legal title can convey the prop- erty as if single ; for he has no wife after divorce, and there is no dower right to be released. The law which requires both the husband and the wife to join in the conveyance of the homestead does not apply after the dissolution of the marriage, because the parties ceased to be husband and wife.* This doctrine, that after a dissolution of the marriage the holder of the legal title can convey the same free from all claims of the other party, is directly affirmed in a recent case. The wife procured a decree of divorce awarding her the custody of the children and alimony for the support of herself and children. The husband had the legal title to the homestead, having received a patent from the govern- ment under the federal homestead law. After divorce the husband conveyed the homestead to a hona fide purchaser for value who had notice of the divorce .proceedings. The wife, although living elsewhere, had not abandoned the homestead. After the conveyance of her husband she re- turned and claimed the property as her homestead, contend- ing that when the decree was rendered, awarding her the iBums V. Lewis, 86 Ga. 591; s Burkett r. Burkett, 78 Cal. 310. Stahl u Stahl, 114 111. 375; Rendle- ^The decree a mensa does not man v. Rendleman, 118 111. 257. have this efifect. Castlebury v. ' Dunham v. Dunham, 128 Mass. Maynard, 95 N. C. 381. 34 ^ 1031.] DECKEES OF DITOECE. 999 -custody of the children, she became the head of the family, and that she did not, by obtaining a divorce for the hus- band's misconduct, lose her homestead right. But it was held that the statute permitting the court to assign the home- •stead to the Innocent party did not thereby convey the title, but expressly provided that the court might dispose of it by decree. " We deem it better for the innocent party," said the court, " better for the fee-owner, better as a rule of property, that the interest of the respective parties in the Jiomestead should be fixed by the decree in the divorce pro- ceeding ; and, when that decree is silent, the homestead, like .all other realty, must remain in possession of the party hold- ing the record title, discharged of all homestead rights and claims of the other party ; and this we deem the result of the better authorities." ^ If the homestead is community property, the parties become tenants in common after divorce if the decree is silent as to such property. Each may then ■convey whatever interest he or she has in the community property .2 If the divorced husband convey the homeistead •by deed of trust, the creditor is entitled to a partition to re- cover the husband's portion of the property, but the wife's interest is exempt.' If the homestead is held by the hus- band and wife by entireties, the wife may plead her exemp- tion against her husband's creditors where the homestead was assigned to her after divorce.* But it seems clear that the divorced wife, although she has no title in the homestead which is in her husband's name, may claim the property as exempt from the claims 437; Everett v. Everett, 60 Wis. 131, 15 N. E. 333. 200; Caswell v. Caswell, 130 lU. 377, ^Scanlan v. Scanlan, 41 IlL Ap. 11 N. E. 343. See, also. Babbitt u 449. Babbitt, 69 111. 377. For sufficiency 4 Thelin w. Thelin, 8 111. Ap. 431. of petition to vacate decree in such 5 Ejgon n Edson, 108 Masss. 590; cases, see Colby v. Colby (Minn.), Caswell v. Caswell, 120 111. 377, 11 61 N. "W. 460. N. E. 843. 1012 AHNTTLLING DECEEE FOK FEAUD. [§ 1052. cation and by mailing a copy of the summons and complaint to a false address, where defendant would receive no notice of the proceedings. In the second suit the plaintiff con- cealed from the court all the facts concerning the former action and procured a decree of divoi-ce. This decree was held void on acco mt of fraud in concealing the proceedings ■ and suppressing the facts from the court.^ A decree will be set aside for fraud 'where the order for publication is ob- tained by a false affidavit, as where plaintiff swears she does not know the defendant's address, when the address is known to her.^ Fraud in obtaining a divorce in the name of the other party will vitiate the decree, as where the hus- band procures the divorce against himself as defendant without the knowledge of the wife.' A decree was set aside ■where the husband induced the wife to go to Canada under promise that they would live together when she had been cured of a venereal disease. She was served with summons on her way out of the state and admonished by her husband to keep the matter quiet on account of public scandal. He continued to correspond with her in a friendly manner, but made no reference to the divorce suit. The wife was igno- rant of her rights and was under the control of the husband, and relied upon his promise to live with her at some future time. These facts were held sufficient, and the decree was opened and the wife was allowed to plead the connivance of her husband and that the offense had been condoned.* ' A remarkable case of fraud occurred in ISTew York, where the husband induced the wife to go to Cahfornia, and as he left her on board the steamer at the last moment before its departure, he delivered to her a sealed box, which, he in- formed her, contained a present to her mother in Cali- lYorke v. Yorke (N. Dak.), 55 3 Sloan ?;. Sloan, 103 lU. 581 ; 01m- N. W. 1095. stead v. Olmstead, 41 Minn. 397, 43 ^ Crouch V. Crouch, 30 Wis. 667 Britton v. Britten, 45 N. J. Eq. 88 Holmes v. Holmes) 63 Me. 430 Adams v. Adams, 51 N. H. 388. N. W. 67; Brown u Grove, 116 Ind. 84, 18 N. E. 387. * Young V. Young, 17 Minn. 181. § 1053.] A^fNULLING DEOKEE FOE FEATJD. 1013 fornia. The box contained a summons in a suit for divorce, but the wife did not discover the fact in time to return. The decree was vacated and the plaintiff charged with per- §1053. Whether decree vacated after one party has married. — Where the fraud has induced the court to render the decree, when in fact it had no jurisdiction, it must be conceded that the judgment is void, and when the truth is made to appear the decree must be vacated, although an in- nocent third person has married one of the divorced parties.- It is not disputed, if the plaintiff procures a decree by fraud in concealing the proceedings or preventing a defense, the fact that he has married again will not deprive the court of the power to render justice and vacate the decree.' The true reason of the law is that public policy requires that the court must be free to protect itself and innocent persons from fraud. The exercise of such power cannot, in the nature of the case, be prevented by the guilty party subse- quently committing ^ more grievous fraud in inducing an innocent party to marry him. To adopt a policy that a de- cree could not be vacated for fraud after a second marriage was contracted in good faith would encourage fraud by placing it in the power of the guilty party to prevent all disturbance of the fraudulent decree. It would allow him to take advantage of his own wrong. Shrewd and unscrupu- lous attorneys could assure their dishonest clients that a iBulkleyu Bulkley, 7 Abb. Pr. well v. Caswell, 34 III. Ap. 548; Rep. 307. Scanlan v. Soanlan, 41 111. Ap. 449; 2 Stephens v. Stephens, 63 Tex. Wortman u Wortman, 17 Abb. Pr. 337; Whitoomb v. Whitcomb, 46 66; Weatherbee v. Weatherbee, 30 la. 437; Holmes v. Holmes, 63 Me. Wis. 499; True v. True, 6 Minn. 420; Yorke v. Yorke (N. Dak.), 55 315; Everett v. Everett, 60 Wis. N. W. 1095; Caswell w Caswell, 120 200; Crouch v. Crouch, 30 Wis. 667; 111. 377; Edson v. Edson, 108 Mass. Bomsta v. Johnson, 38 Miniv 230, 590_ 36 N. W. 341 ; Wisdom v. AVisdom. 3 Allen V. McClellan, 13 Pa. St. 24 Neb. 551 ; Brotherton w. Brother- 338; Boyd's Appeal, 38 Pa. 241; ton, 12 Neb. 72; Olmstead u^Olm- Comstook V. Adams, 23 Kan. 513; stead, 41 Minn. 297. Smith V. Smith, 30 Mo. 167; Cas- 1014 ANNULLING DECREE FOE FRAUD. [§ 1053. hasty marriage will make the fraud successful beyond all question. Such a policy would add another iniquity to the ex parte divorce, which is already a disgrace to our laws and a reijroach upon the administration of justice. The rights of the innocent third person must, in this instance, yield to the paramount right of the state to so administer jusLice as to prevent fraud and protect the marriage re- lation. But as the laws proceed, in such cases, upon, reasons of public policy, the decree will not be vacated where other con- siderations of public policy intervene. The state is inter- ested in the preservation of a marriage after a lapse of time, in the security of titles and property rights, and in the legitimacy of children ; and where the defrauded party has delayed in asserting her rights for an unreasonable time the decree should not be disturbed. If the defrauded party could have prevented the second marriage the application comes too late. Every principle of estoppel and laches should be applied to defeat the party complaining of fraud where a second marriage has taken place. If the defrauded party has withdrawn from cohabitation and lives in another state, she- has, to soine extent, placed it in the power of her husband to commit the fraud ; and, as against the rights of the second wife, the rule of equity that " where one of two innocent parties must suffer from fraud, the party who placed it in the power of the third party to commit the fraud must suffer," should be applied. One who has re- nounced the marital relation for years comes in bad grace to assert marital rights. If she has relied upon the decree, accepted its benefits and married again, she cannot have the decree vacated, although the decree was obtained by fraud or is void for want of jurisdiction.^ 1 Eichardson v. Richardson, 133 1056; Marvin v. Foster (Wis.), 63 Pa. 293, 19 A. 82; EUis v. White, N. W. 484; Mohler u Shanks' Es- 61 la. 644-, Elliott v. Wohlfrom, 55 tate (la.), 61 N. W. 981. See contra, Cal. 384; Loud v. Loud, 139 Mass. Bundle v. Van Inwegan, 9 Civil 14; Kicheson v. Simmons, 47 Mo. Pro. (N. Y.) 328. 20; Ellis V. Ellis (Minn.), 56 N. W. j§§ 1054, 1055.] AlifNULLING DEOKEE FOR FEAUB. 1015 § 1054. The death of one of the divorced parties is not a har, — A decree obtained by fraud will be vacated although ■one of the divorced parties is dead.^ The sanie rule of pub- He policy that requires the decree to be vacated although a second marriage has taken place will require the same relief a,lthough one of the parties is dead. The proceeding will be a mere contest for property ; for if the decree is vacated the survivor cannot be restored to marital rights. The fact that the party is dead who is alleged to have procured the decree by fraud should justify the court in requiring clear and satisfactory evidence of the fraud, for the dead can make no ■denials or explanations. After the death of one of the parties the other is incom- petent to testify against deceased in a suit to set aside a decree on account of fraud.^ Where the application is made after the death of the party guilty of fraud, it seems that both the administrator and the heirs of the deceased should be made parties. The interests of the heirs are not identical with that of the administrator, and the decree should be final as to the interests of all par- ties when it is certified to the probate court before the estate is settled.' § 1055. When parties are hound by a divorce ohtained hy collusion. — Where the parties have obtained a decree of divorce by entering into an agreement to suppress evidence, or to not interpose a defense, or by other collusive agree- 1 Rawlins 17. Ea'wlins, 18 Fla. 345; where the complainant seeks to .Johnson v. Coleman, 33 Wis. 452; have the judgment declared void. Brown v. Grove, 116 Ind. 84; Fidel- "If that judgment should be de- ity Ins. Co.'s Appeal, 93 Pa. 243; clared void and of no effect, it Bomsta i;. Johnson, 38 Minn. 230; would open the door for the widow Boyd's Appeal, 38 Pa. 241. to come in and claim Jaer share 2 Fidelity Ins. Co.'s Appeal, 93 Pa. of the estate, and thus the heir 242. But see contra, Brown v. would be deprived of a portion ■Grove, 116 Ind. 84 of the inheritance. The pecuniary 3 Bomsta v. Johnson, mpra. In interest of the heir, therefore, is Johnson u Coleman, 23 Wis. 452, the opposed to the application and to court held that both the heir and granting the relief asked in the the administrator should be joined complaint." 1016 AISTNTJLLING DECEEE FOE FEAUD. [§ 1055. ments, they will be bound by the decree, and the wife can- not plead her. own collusion as a fraud upon the court in order to have the decree vacated and additional alimony granted to her. Although such decree is a fraud upon the court, and there- fore against public policy, in some cases the decree will not be disturbed, because it would be much more against public policy to relieve parties who are in pari delicto, or to allow the wife to profit by her collusion.^ A decree will not be vacated where the wife agrees to permit the husband to pro- cure a divorce on the ground of her adultery, in considera- tion that the husband pay her a sum of money and convey to her certain real property, which he refuses to do after obtaining the divorce. If the decree was vacated and the- wife allowed to interpose her defense, " she would occupy a. more advantageous position from which to renew her de- mand for money, and perhaps, profiting by her experience^ negotiate for another collusive divorce upon a cash-in-hand' basis." ^ Whether right or wrong the parties cannot be re- lieved from a shameless bargain to deceive the court.' In some instances the decree will be vacated where the wife is an unwilling party to the collusion, and participated in it under the coercion of the husband because she was weak and helpless. Then the collusion becomes a form of force and fraud. A decree will be vacated where the Wife is com- pelled to sign the petition for divorce against the husband or where the wife, while in, a weak and helpless condition,, is brought into the state, and compellfed to accept service of a summons upon the understanding that the decree will be for desertion, and the husband obtains a decree for adultery, and deprives her of her right of dower.* Collusion of the parties in going to another state to pro- 1 Nichols V. Nichols, 25 N. J. Eq. Orth v. Orth, 69 Mich. 158, 37 N. W.- 60; Singer v. Singer, 41 Barb. 139. 57. 2 Hubbard v. Hubbard, 19 Colo. *01mstead u Olmstead, 41 Minn. 13, 34 P. 170. 297, 43 N. W. 67. 3 Simons v. Simons, 47 Mich. 253; 5 Daniels v. Benedict, 50 Fed. 347.- § 1055.] ANNULLING DEOEEE FOE FEATID. 1017 cure a divorce will prevent either of the parties from show- ing, in a subsequent proceeding, that the decree was void for lack of jurisdiction. Neither of the parties can complain of mutual fraud upon the court. The party who invoked the aid of the court cannot be heard to question its jurisdic- tion.i This is a form of estoppel similar to that which pre- vents a party from attacking the validity of a judgment after he has accepted the benefits of it. The decree, which is void for lack of jurisdiction over the subject-matter, must always remain so, and no act of the parties can invest it with the force and validity of a decree rendered by a court of competent jurisdiction. Although it is a nullity, the law refuses all relief concerning it and binds the parties by their collusive agreement. But the novel and erroneous doctrine is announced in Minnesota that a decree of divorce obtained by collusion in another state where neither of the parties is domiciled, and consequently the court has no jurisdic- tion over the subject-matter, is valid as to the parties, but void as to the state of their residence. The facts were that the wife, in applying to be appointed administratrix of her former husband's estate, offered to show that she was the wife of deceased, and that his second marriage was void be- cause the decree of divorce which she had obtained in Wis- consin was void for the reason that at the time it was- 'rendered she and her husband were residents of Minnesota, and consequently the court in Wisconsin had no jurisdiction. This offer of proof was refused because the decree was valid as to the parties, and the rule was announced that " while the state cannot be bound by its resident citizens appearing in and consenting to the jurisdiction of a court in another state in an action for divorce, the parties may bind them- selves in respect to their individual interests. ... It may seem anomalous that a judgment of divorce can be so far effectual between the parties as to extinguish aU rights of property dependent on the marriage relation, without being effectual to protect them from accountability to the iPeyh's Estate, 5 N. Y. Supp. 90. 1018 ANNULLING DECREE FOE FEA0D. [§ 105G. state for their subsequent acts. One reason why they ought not to be permitted, by going into and procuring a divorce, to escape accountability to the laws of their state, is that their act is a fraud upon the state, and an attempt to evade its laws, to which it in no wise consents, and it may there- fore complain. But the parties consent, and why should they be heard to complain of the consequences to them of what they have done? "Why should they be permitted to lescape these consequences by saying : ' It is true that by a false oath made by one of us, and connived at by the other, we committed a fraud in the Wisconsin court and induced it to take cognizance of the case; but now we ask to avoid its judgment by proof of our fraud and perjury or suborna-. tion of perjury.' Because we do not think this can be done, the parties must, so far as their individual interests are con- cerned, abide by the judgment they procured that court to render ; and, of course, what wiU bind them will bind those who claim through them." The order appointing the sec- ond wife administratrix was then affirmed.^ So far as this opinion asserts the validity of this collusive decree, it is- clearly wrong, because the fundamental principle of juris- diction is overlooked. Jurisdiction over thp subject-matter cannot be conferred by consent of the parties. The same result could have been reached by holding the decree void for lack of jurisdiction, and that the wife was estopped from^^ attacking the decree by her fraud and collusion, by accept- ing the alimony awarded by it, and by permitting the decree to remain in force until the husband had married again. § 1056. Delay and estoppel. — It is a familiar principle of law that the party who seeks relief from fraud must pro- ceed promptly upon the discovery of the fraud, and an un- explained acquiescence or delay after he has knowledge of the facts wiU deprive him. of his rights. This rule is espe- cially applicable to a party seeking to vacate a decree of di- vorce on the ground of fraud ; for an innocent person relying upon the decree may marry the divorced party, and to vacate 1 EUis V. ElUs (Minn.), 56 N. W. 1056. f 1056.] ANNULLING DECREE EOK EEAUD. 1019 the decree v^'iU. deprive the second wife and her children of property rights and legal status. The defrauded party, after discovering the fraud, cannot wait until a second mar- riage takes place and assert her rights to the injury of oth- ers. If a second marriage takes place after an unreason- able delay of the defrauded party, she has lost her rights by laches and cannot disturb the decree upon which others have relied.i Public policy forbids the review of decrees of divorce under such circumstances.^ Actions to vacate decrees of divorce must be brought within a reasonable time after the discovery of the fraud. Such time must not exceed the period fixed by the statute of limitations within which actions must be brought after the discovery of fraud.' Every case must be governed by its own circumstances. The court is not governed by the statute in all cases, but may apply the inherent principles peculiar to courts of equity and refuse all relief for a delay of a shorter period than is permitted by the statute.* The cause of action ac- crues when the party discovers that a decree of divorce was rendered. The fact that the decree was entered of record and was therefore constructive notice of the proceeding will not be such actual notice as wiU put the plaintiff upon in- quiry.^ What will explain and excuse delay cannot be stated in advance by any rule of law, but is to be determined by the circumstances of each case.* In one instance a decree was 1 Nicholsons Nicholson, 113 Ind. •'Sedlack v. Sedlack, 14 Or. 340, 131, 15 N. E. 233; Yorston v. Yors- 18 P. 453; Cochran v. Cochran ton, 33 N. J. Eq. 495. (Neb.), 60 N. W. 933. 2 Thompson v. Thompson, 91 Ala. * Brown v. Grove, 116 Ind. 84, 18 591. N. E. 387; Caswell v. CasweU, 120 3 Larimore v. Knoyle, 43 Kan. 338, lU. 877, 11 N. E. 343. 38 P. 487; Caswell v. Caswell, 120 6 Linn v. Linn, 2 N. Y. Supp.578; 111. 377, 11 N. E. 342; Sloan v. Sloan, Perry v. Perry, 15 Phila. 243; Potts 103 111. 581; Jones v. Jones, 78 Wis. v. Potts, 10 W. N. C. 103; Firmin 446, 47 N. "W. 738; Bourlon v. v. Firmin, 16 PhiL 75; Smith v. Waggaman, 28 La. An. 481; Hoi- Smith, 3 Phila. 489; Kello'wu Kel- brook V. Holbrook, 114 Mass. 568; low, 1 Le Val. Eep. 203. Prewit V. Dyer (Cal.), 40 P. 105. 1020 ANNULLING DECEEE FOE FEATJD. [§ 1056. vacated after the death of the husband, and although twenty- years had elapsed since the date of the decree, where the husband had obtained a decree in his wife's name and con- cealed the proceedings from her.' If the plaintiff had some notice of the proceedings, a delay of fifteen years is not excused by plaintiff's poverty and her desire to wait until her son attains majority.^ Poverty wiU excuse a delay of nearly two years.' "Where plaintiff has resided in the com- munity for eight or nine years and had some knowledge of the fraud, her unexplained delay is too great.* A decree Avas vacated fourteen years after it was rendered, where the wife brought an afffcion to vacate within seven months after discovering that such decree had been rendered, the delay of seven, months being excused by her poverty.' A wife is not entitled to this relief where she has delayed her suit for four years while relying upon her husband's promise of a suitable provision for her; the inference being that she did not regard the wrong perpetrated upon her by the de- fendant in obtaining the divorce, but brings the action for alimony alone .^ The doctrine of estoppel may be applied in these cases> although it is shown that the decree was obtained by fraud. A party may be estopped from showing that a decree is void 1 Brown v. Grove, 116 Ind. 84, 18 from such course. It appeared K. E. 387. that the fact of their divorce was ^Earleu Earle, 91 Ind. 27. known to the relatives and was a ' Everett v. Everett, 60 Wis. 200. matter of common knowledge in *Zoellner v. Zoellner, 46 Mich.^ the community, although the di- 511. vorce was obtained in another 5 CasweU v. Caswell, 120 111. 377, county. Five years after her re- 11 N. E. 342. turn the wife applied to have the ^Nicholsonv. Nicholson, 113 Ind. decree set aside. Held, that her 131, 15 N. E. 223. knowledge of the decree would b& A wife testified that she re- presumed from the date of her re- turned to the place where the di- turn; and the action was dismissed vorced husband resided for the because not brought within three purpose of effecting a reconcilia- years (statutory period) after dis- txon, but her relatives who resided covery of the fraud. Prewitt v. in the same place dissuaded her Dwyer (Cal.), 40 P. 105. § 1057.] AlfHTTLLINQ DECEEE FOE FEATJD. 1021 by Ms conduct showing a reliance upon the decree. Thus, where a party has obtained a judgment or decree, he is es- topped from showing in a subsequent proceeding that the court which granted him the relief had no jurisdiction. And Avhere a party obtains a decree by fraud, it is clear that if the defrauded party relies upon the decree, or in any way accepts its benefits, he is estopped from, asserting its invalid- ity. The doctrine is familiar and need not be repeated. The authorities have been cited elsewhere.^ § lOo?. Procedure in vacating decree obtained by fraud. The procedure in vacating a decree for fraud must conform to the local practice. Generally the application is by an original bill stating fully and particularly all the facts show- ing the fraud relied upon.^ In some instances the applica- tion may be made by motion to vacate the decree under the provision of the code for vacating decrees after term.* But the decree may be vacated after the time fixed by the code.'' The application must be made to the court which rendered the decree.* It should state when the fraud was discovered, and also any facts which explain or excuse any apparent delay.* The application should also show a meritorious de- fense to the suit, so that the court can determine that the fraud has prevented the party from obtaining justice and that a new trial will result in a different decree.' If possible 1 Gee Estoppel, §§ 556 and 557. of the case was that the trial court 2 Johnson's Appeal, 9 Pa. 416; had no jurisdiction. True V. True, 6 Minn. 315. For ^ Smithson v. Smithson, id. forms of petitions held sufficient ^Bomsta v. Johnson, 38 Minn. on demurrer, see Lord v. Lord, 66 230, 36 N. W. 341 ; Larimore v. Me. 365; Eavvlins v. Eawlins, 18 Knoyle, 43 Kan. 338, 23 P. 487; Fla. 345. See, also, defective peti- Nicholson v. Nicholson, 113 Ind. tion in Larimore V. Knoyle, 43 Kan. 131, 15 N. E. 323; Bedding v. Eed- 838, 23 P. 487. ding, 15 N. Y. Supp. 60. See form 5 Mulkley v. Mulkley, 100 Cal. 91, of petition in Daniels v. Benedict, 84 P. 621. 50 Fed. 347. * See dtcfMW in Smithson u Smith- ^ Webster v. Webster, 54 la. 153; san, 37 Neb. 535, 56 N. W. 300. The Everett v. Morrison, 21 N. Y. Supp. only point determined in this opin- 328 ; Thelin v. Thelin, 8 111. Ap. 421 ; ioi necessary to a determination Long v. Long, 59 Mich. 296; Com, 1022 ANNULLING DKCEEE FOE FEAUD. [§ 1057. the plaintiff in the former suit should have actual notice of the application to vacate the decree.' But where the appli- cation is made in the same court that rendered the decree^ the notice may be served upon the attorney who represented the plaintiff.^ A third person who has relied upon the decree and married the plaintiff is ^ proper party to the ^proceeding and should have notice.^ But this is seldom required. Such third person cannot escape from the liabili- ties of the second marriage by having the decree vacated for fraud, where he is not injured by the fraud.* If the plaintiff is dead, the legal representatives of the deceased should be made parties, and also all parties interested in the distribution of the estate.^ The evidence of fraud should be clear and convincing be- fore the court will be justified in setting aside a decree.^ If the application is made promptly and before third parties, have relied upon the decree, the showing need not be as strong as where years have elapsed- and the other party has married and died, leaving a widow and children. The power of the court to vacate a decree on its own mo- tion is limited to a reasonable time, not extending beyond the term in which the decree was rendered.' "When the decree is vacated for fraud in deceiving the court as to the residence of the parties, the action must be dismissed if, at_ the time of the application, neither of the parties is domi- ciled within the jurisdiction of the court. In such case the V. Sperling, 8 Pa. Co. Ct. 491; ' ^Kinnier u. Kimiier,45 N. Y.535; Goldei^u Golden (Ala.), 14 So. 638. Ruger v. Heckle, 31 Hun, 489, 85 1 But this is not always required. N. Y. 483. Wanamaker v. Wanamaker, 10 sBomsta v. Johnson, 38 Minn. Phila. 466; Keeseman v. Keeseman, 330, 36 N. W. 341; Johnson v. Cole- 3 Pearson. 186; Fitch v. Fitch, 1 man, 33 Wis. 453; Eawhns v. Eaw- C. P. 46. . lins, 18 Fla. 345 ; Watson v. Watson, 2 Beach v. Beach, 6 Dak. 371, 43 47 How. Pr. 340. N. W. 701 ; Yorke v. Yorke (N. Dak.), « Hopkins v. Hopkins, 39 Wis. 167 ; 55 N. W. 1095. But see, contra, Getoher v. Getcher, 51 Md. 18,7; Ellis V. Ellis, 13 Neb. 91. Adams v. Adams, 51 N. H. 388. 3 Carlisle v. Carlisle, 96 Mich. 138, " Brown v. ^rown, 53 Wis. 39. 55 N. W. 673. § lOoY.] ANNULLING DECREE FOE FEATJD. 1025 court never bad jurisdiction of the parties and the subject- matter, and cannot obtain jurisdiction of the status of th& parties by their appearance.^ But if the court originally had jurisdiction by reason of the plaintiff's domicile in the state,, the decree is set aside, the defendant permitted to answer, and the case is tried upon its merits.^ In this proceeding temporary alimony may be allowed the wife.^ The order denying the application to vacate a decree is a final order and may be reviewed.^ 1 Crouch V. Crouch, 30 Wis. 667; Stephens v. Stephens, 63 Tex. 337; Lord I'. Lord, 66 Me. 265; Smith w McMurray v. McMurray, 78 Tex, Smith, 4 Greene (la.), 366. 584, 14 S. W. 895. 2Edson V. Edson, 108 Mass. 590; ^Ex parte Smith, 34 Ala. 455 ^ Adams v. Adams, ' 51 N. H. 388; Everett u Everett, 60 Wis. 200. Yorke v. Yorke (N. D.), 55 N. W. ^Haverty v. Haverty, 35 ICan, 1095; Whitcomb v. Whitcomb, 46 438, 11 P. 364 la. 437; Rush v. Eush, 46 la. 648; DIVORCE STATUTES. The following statutes were in force on the 1st day of January, 1895, unless otherwise noted. The codes and re- vised statutes from which the language is quoted are given in connection with each state, and any subsequent legisla- tion is cited from the session laws of later date. The session laws of each were examined as late as the year 1895. For <5onvemenoe the causes for divorce are given separately for each state in their alphabetical order, followed by the stat- utory provisions relating to the residence of the parties.' Statutes relating to constructive service on defendant are important in determining the validity of decrees of divorce rendered in other states, and are inserted separately.^ The Code of California relating to marriage and divorce is inserted in full on account of its importance in other states, and because it is the most complete code on this subject.' The English Divorce Act of 1857 is also included, as it is not accessible to many, and is important in a work requir-' ing the examination of English decisions. CAUSES FOR DIVORCE, ALABAMA, (Code 1886, see. 2322.) Absolute Divorce. (1) In favor of either party, where the other was, at the time of the marriage, physically and incurably incapacitated from entering into the marriage state. (3) Adultery. iPagelOSa 2 Page 1068. 'Page 1076. 65 1026 DIVOKOE STATUTES. (3) Voluntary abandonment from bed and board for two years next preceding the filing of the bill. (4) Imprisonment in the penitentiary of this or any other state for two years, the sentence being for seven years or longer. (5) The commission of the crime against nature, whether with man- kind or beast, either before or after marriage. (6) Becoming addicted after marriage to habitual drunkenness. (7) In favor of the husband when the wife was pregnant a,t the time^ of marriage without his knowledge or agency. (8) In favor of the wife when the husband has committed actual vio- lence on her person, attended with danger to life or health; or when, from his conduct there is reasonable apprehension of such violence. Limited Divorck (1) Cruelty in either of the parties, or any cause which would justify a decree from the bonds of matrimony, if the party applying therefor desires only a divorce" from bed and board. ARIZONA. (Sec. 2110, KeTise(l Statutes 1887.) Absolute Divorck (1) When the husband or wife is guilty of excesses, cruel treatment,, or outrages towards the other, whether by the use of personal v-iojence or any other means. " (2) In favor of the husband when his wife shall have been taken ini adultery; or where she shall have voluntarily left his bed and board for the space of six months with the intention of abandonment. (3) In favor of the wife where the husband shall have left her for six months with the Intention of abandonment; or, For habitual intemperance; or, Wilful neglect to provide for his wife the necessaries or comforts of life for like period, having the ability to provide the same, or failing ta do so by reason of his idleness, profligacy or dissipation; or, Where he shall have been taken in adultery with another woman. (4) In favor of either husband or wife, when the other shall have been convicted, after marriage, of a felony, and imprisoned in any prison. There is no Umited divorce in Arizona. ARKANSAS. (Sec. 3556, Mansfield's Digest 1887.) Absohjte or Limited Divorcb. (1) Where either party, at the time of the contract, was, and still is, impotent CAUSES FOK DIVOECE. 1027 (2) Where either party wilfully deserts and absents himself or herself from the other for the space of one year without reasonable cause. (3) Where he or she had a former wife or husband living at the time of the marriage sought to be set aside. (4) Where either party shall be convicted of felony or other infamous crime. (5) Where either party shall be addicted to habitual drunkenness for the space of one year; or (a) shall be guilty of such cruel and bar- barous treatment as to endanger the life of the other; or (b) shall ofEer such indignities to the person of the other as shall render his or her condition intolerable. (6) Where either party shall have committed adultery subsequent to such marriage. (T) Where either party shall, subsequent to such marriage, have be- come permanently or incurably insane. CALIFORNIA. See California Code, page 1076. COLORADO. (Act of 1893.) Absolute Divorck. (1) When either party, at the time of marriage, was, and continued to be, impotent; or, in consequence of immoral or criminal conduct subsequent to the marriage, became impotent. (2) When he or she had a wife or husband living at the time of such marriage. (3) When either party has committed adultery subsequent to the mar- riage; or, (4) Has wilfully deserted and absented himself or herself from the husband or wife, without reasonable cause, for the space of one year. (5) Has been guilty of extreme or repeated acts of cruelty, inflicting mental suffering or bodily violence. (6) That the husband, being in good bodily health, shall fail to make reasonable provision for the support of his family for the space of one year. (7) That either party has been guilty of habitual drunkenness for the space of one year. (8) That either party has been convicted of felony. There is no limited divorce, but alimony may be granted without di- vorce. 1028 DIVORCE STATUTES CONNECTICUT. (Sec. ^02, General Statutes.) Absolute Divorce. (1) Adultery. (2) Fraudulent contract. i (3) Wilful desertion for three years, with total neglect of duty. (4) Seven years' absence, during all which period the absent party has not been heard from. (5) Habitual intemperance. (6) Intolerable cruelty. (7) Sentence to imprisonment for life. (8) Any infamous crime involving a violation of conjugal duty and punishable by imprisonment in the state prison. There is no limited divorce in Connecticut. DAKOTA. See North Dakota and South Dakota. See, also, California Code, sec. 93. DELAWARa (Revised Code 1893.) - Absolute Divorce. (1) Adultery. (3) Desertion for three years. (3) Habitual drunkenness. (4) Impotency of either party at the time of marriage. (5) Extreme cruelty. (6) Conviction, either in or out of this state, after marriage, of a crime by the laws of this state deemed felony, whether such crime shall be perpetrated before or after such marriage. (7) Procurement of marriage by fraud for want of age, the husband being under the age of eighteen years, or the wife being under the age of sixteen years, at the time of the marriage, and such marriage not being, sifter those ages, voluntarily ratified. (8) Wilful neglect on the part of the husband for three years to pro- vide for his wife the necessaries of life suitable to her condition. Limited Divorce. Either an absolute or limited divorce may be decreed, at the discre- tion of the court, for the seventh and eighth causes above specified. CAUSES FOE DITOEOB. 1029 DISTRICT OF COLUMBIA. CU. S. statutes at large 1871-74.) Absolute DrvoECB. (1) When such marriage was contracted while either of the parties thereto had a former wife or husband living, unless the former mar- riage had been lawfvdly dissolved and no restraint imposed on the party contracting such second marriage. (3) Where such marriage was contracted during the lunacy of either party. (3) Where either party was matrimonially incapacitated at the time of marriage. (4) Where either party has committed adultery during the marriage. (5) For habitual drunkenness for a period of three years of either party complained against. (6) For cruelty of treatment, endangering the life or health of the party complaining. (7) For wilful desertion and abandonment by the party complained of against the party complaining for the full uninterrupted space of two years. Limited Divorce. (1) Cruelty of treatment, endangering the life or health of one of the parties. (3) Reasonable apprehension, to the satisfaction of the court, of bodily harm. FLORIDA. (Revised Statutes 1891, sec. 1480.) Absolute Divorck (1) Where the parties are within the degrees of relationship prohibited by law. (3) Where either party is naturally impotent. (3) Adultery in either of the parties. (4) Extreme cruelty in either party. (5) Habitual indulgence by defendant in violent and ungovernable temper. (6) Habitual intemperance of defendant. (7) Wilful, obstinate and continued desertion by either party for the term, of one year. (8) That defendant has obtained a divorce in any other state or country. (9) That either party had a husband or wife living at the time of the marriage sought to be annulled. 1030 DITOECE STATUTES. There is no limited divorce in Florida, but the wife may obtain ali- mony without divorce f or the f oUowing causes: (1) On the husband's deserting his wife for one year; (2) on his living in open and avowed adultery with another woman for three nionths; (3) in cases of cruel, inhuman and barbarous treatment; (4) on the husband's committing any act which shall be cause of divorce under the statutes of this state. GEORGIA. (Code 1882, sees. 1712, 1714.) Absolute Divorce. (1) Intermarriage by persons within the prohibited degrees of con- sanguinity and affinity. (2) Mental incapacity at the time of marriage. (3) Impotency at the time of the marriage. (4) Force, menaces, duress or fraud in obtaining the marriage. (5) Pregnancy of the wife at the time of the marriage unknown to the husband. (6) Adultery in either of the parties after marriage. (7) Wilful and continued desertion by either of the parties for the term of three years. (8) The conviction of either party of an offense involving moral tur- pitude, and under which he or she is sentenced to imprisonment in the penitentiary for the term of two years or longer. Absolute or limited divorce may be granted in the discretion of the jury in case of either (1) cruel treatment or (3) habitual intoxication by either party. Limited Divorcb. (1) " Divorces from bed and board may be granted on any ground which was held sufficient in the English courts prior to May 4, 1784." IDAHO. See California Code, sees. 82, 83, 92, 128, 141. ILLINOIS. {S. & C. Annotated Statutes 1885, ch. 40.) Absolute Divorce. (1) When either party at the time of marriage was, and continues to be, naturally impotent. (2) When he or she had a wife or husband living at the time of such marriage. CAUSES rOE DIVORCE. 1031 (3) When either party has committed adultery subsequently to the Boanriage; or, (4) Has wilfully deserted or absented himself or herself from the hus- band or wife, without any reasonable cause, for the space of two years; or, (5) Has been guilty of habitual drunkenness for the space of two years; or, (6) Has attempted the life of the other by poison or other means show- ing malice; or, (7) Has been guilty of extreme and repeated cruelty; or, (8) Has been convicted of felony or other infamous crime. There is no limited divorce in Illinois, but the wife may obtain ali- mony without divorce, where she is livipg apart from her husband with- out her fault INDIANA. (Annotated Code 1888, sec. 1032.) Absolute Divorck (1) Adultery. (3) Impotency existing at the time of the marriage. (3) Abandonment for two years. (4) Cruel and inhuman treatment of either party by the other. (5) Habitual drunkenness of either party. (6) The failure of the husband to make reasonable provision for his family for a period of two years. (7) The conviction, subsequent to the marriage, in any country, of either party, of an infamous crime. There is no limited divorce in Indiana, but a married woman may ob- tain provision for the supjwrt of herself and infant children in the fol- lowing cases (sec. 5133): (1) When the husband shall have deserted his wife, or wife and chil- dren, not leaving her or them sufficient provision for her or their sup- port. (2) When the husband shall have been convicted of felony, and im- prisoned in the state prison, not leaving his wife, or his wife and chil- ■dren, sufficient provision for her or their support. (3) When the husband is an habitual drunkard, and by reason thereof "becomes incapacitated or neglects to provide for his family. (4) When a married man renounces the marriage covenant or refuses to live with his wife in the conjugal relation, by joining himself to a «ect or denomination the rules and doctrines of which require a renun- ciation of the marriage covenant, or forbid a man and woman to dwell .and cohabit together in the conjugal relation according to the true in- i:ent and meaning of the institution of marriage. 1032 DIVOECE STATUTES. INDIAN TERRITORY. Statute the same as Arkansas, page 1026. IOWA. (McCIain's Annotated Code 1888, sec. 3414.) Absolute Divorce. (1) Against the husband when he has committed adultery subsequent to the marriage. (3) When he wilfully deserts his wife and absents himself without a reasonable cause for the space of two years. (3) When he is convicted of felony after the marriage. (4) When, after marriage, he becomes addicted to habitual drunken- ness. (5) When he is guilty of such inhuman treatment as to endanger the life of his wife. (6) Against the wife for the causes above specified, and also when the wife at the time of the marriage was pregnant by another than herhus- hand, unless the husband have an illegitimate child or children then living, which was unknown to the wife at the time of their marriage. There is no limited divorce in Iowa, but courts of equity will grant alimony without divorce. KANSAS. (General Statutes 1889, sec. 4Sr4S.) Absolute Divorce. (1) When either of the parties had a former husband or wife living at the time of the subsequent marriage. (3) Abandonment for one year. (3) Adultery. (4) Impotency. (5) When the wife, at the time of the marriage, was pregnant by an^ other than her husband. (6) Extreme cruelty. (7) Fraudulent contract. (8) Habitual drunkenness. (9) Gross neglect of duty. (10) The conviction of felony and imprisonment in the penitentiary therefor subsequent to the marriage. There is no limited divorce in Kansas, but the wife, whether a resi- dent or non-resident, may obtain alimony without divorce from her husband, in an action brought for that purpose, for any of the causes- for which a divorce may be granted. CAUSES FOE DITOEOE. 1033 KENTUCKY. (General Statutes 1888.) Absolute Divorce. To both husband and wife for the following causes: (1) Such impotency or malformation as prevents sexual intercourse. (8) Living apart without any cohabitation for five consecutive years next before the application. Also to the party not in fault for the following causes: (1) Abandonment of one party by the other for one year. (3) Living in adultery with another man or woman. (3) Condemnation for felony, in or out of this state. (4) Concealment from the other party of any loathsome disease exist- ing at the time of marriage; or, (5) Contracting such afterwards. (6) Force, duress, or fraud in obtaining the marriage. (7) Uniting with any religious society whose creed and rules require a renunciation of the marriage covenant, or forbid husband and wife from cohabiting. Also to the wife, when not in Uke fault, for the following causes: (1) Confirmed habit of drunkenness on the part of the husband of not less than one year's duration, accompanied with a wasting of his estate, and without any suitable provision for the maintenance of his wife or children. (3) Habitually behaving towards her by the husband, for not less than six months, in such cruel and inhuman manner as to indicate a settled aversion to her, or to destroy permanently her peace or happiness. (3) Such cruel beating or injury, or attempt at injury, of the wife by the husband as indicates an outrageous temper in him, or probable danger to her life, or great, bodily injury, from her remaining with him. Also to the husband for the following causes: (1) Where the wife is pregnant by another man without the husband's knowledge at the time of marriage. (3) When not in like fault, for habitual drunkenness on the part of the wife of not less than one year's duration. (3) Adultery by the wife, or such lewd, lascivious behavior on her part as proves her to be unchaste, without actual proof of an act of adultery. Limited Divorce. Judgment for separation, or divorce from bed and board, may also be rendered for any of the causes which allow divorce, or for such other cause as the court in its discretion may deem sufficient. 1034 DIVOECE STATUTES. LOUISIANA. Absolute Divorce. (1) Where the huslaand or wife may have been sentenced to an in- famous punishment; or, (3) Guilty of adultery. Limited Divorce. (1) In case of adultery on the part of the other spousa (2) Where the other spouse has been condemned to an infamous punishment. (3) On account of the habitual intemperance of one of the married persons; or, (4) Excesses, cruel treatment, or outrages of one of them toward the other, if such ill-treatment is of such a nature as to render their living together insupportable. (5) Public defamation on the part of one of the married persons towards the other. (6) The abandonment of the husband by the wife, or the wife by her husband. (7) An attempt of one of the married persons against the life of the other. (8) Where the husband or wife has been charged with an infamous offense and shall actually have fled from justice, on producing proofs that such husband or wife has actually been guilty of such infamous olfense, and has fled from justice. The party obtaining a limited divorce may, after one year, obtain an absolute divorce. MAINE. (Bevised Statutes 1883.) Absolute Divorce. (1) Adultery. (3) Impotence. (3) Extreme cruelty. (4) Utter desertion, continued for three consecutive years next prior to the filing of the libeL (5) Gross and confirmed habits of intoxication. (6) Cruel and abusive treatment. (7) On the libel of the wife, when the husband, being of sufficient ability, or being able to labor and provide for her, grossly or wantonly and cruelly refuses or neglects to prqvide suitable maintenance for her. (Act of 1898.) No limited divorce or decree nisi is granted. (Act of 1889.) CAUSES FOE DIYOKCE. 1035 MARYLAND. (General Statutes, page 142.) Absolute Divorce. <1) The impotence of either party at the time of the marriage. (2) Any cause which, by the laws of this state, renders a marriage Dull and void ab initio. (3) Adultery. (4) When the court shall be satisfied by competent testimony that the party complained against has abandoned the party complaining, and that such abandonment has continued uninterruptedly for at least three years, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation. (5) When the woman before marriage has been guilty of illicit carnal intercourse with another man, the same being unknown to the husband at the time of the marriage, and when such carnal connection shall be proved to the satisfaction of the court. Limited Divorce. (1) Cruelty of treatment. (2) Excessively vicious conduct. (3) Abandonment and desertion. Limited divorce may be decreed in a case where absolute divorce is prayed, if the causes proved be sufiicient to entitle the party to the £ame. MASSACHUSETTS. (PubUc statutes 1882.) Absolute Divorce. <1) Adultery. (2) Impotency. ^ (3) Extreme cruelty. (4) Utter desertion continued for three consecutive years next prior to the filing of the libeL (5) Gross and confirmed habits of intoxication. (6) Cruel and abusive treatment. (7) On the libel of the wife, when the husband, being of sufiicient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for her. (8) When either party has separated from the other without his or ber consent, and has united with a religious sect or society that pro- fesses to believe the relation of husband and wife void or unlawful, and bas continued united with such sect or society for three years, refusing during that term to cohabit with the other party. 1036 DIVOECE STATUTES. (9) When either party has been sentenced to confinement at hard labor for life or for five years or more in the state prison, or in a jail or house of correction. Limited Divorce. Excessive use of opium or other drugs. (Act of 1889.) A divorce from the bond of matrimony may Jje decreed for any of the causes allowed by law, notwithstanding the fact that the libelee has been continuously absent for such a period of time and under such cir- cumstances as would raise a presumption of death. All decrees of divorce shall in the first instance be decrees nisi, to become absolute after the expiration of six months from the entry thereof, and thereupon the clerk shall enter a final decree unless the court has, for sufiicient cause, on application of any party interested, otherwise ordered. (Act of 1893.) It is now provided by statute that when a divorce from bed and board, under laws heretojfore in force, has been decreed, and the parties have lived separately for three consecutive years next after the decree, a divorce from the bonds of matrimony may be granted upon the peti- tion of the party in whose favor the previous decree was granted; and when the parties have lived separately for five consecutive years next after such decree, a divorce from the bond of matrimony may be de- creed in favor of either party. MICHIGAN. (Howell's Annotated Statutes 1882, sec. 6228.) Absolute Divorce. (1) Whenever adultery has been committed by any husband or wife. (3) When one of the parties was physically incompetent at the time of the marriage. (3) When one of the parties has been sentenced to imprisonment4n ■ any prison, jail or house of correction for three years or more; and no pardon granted to the party so sentenced, after a divorce for that cause, shall restore such party to his or her conjugal rights. (4) When either party shall desert the other for the term of two years. (5) When the husband or wife shall have become an habitual drunkard. (6) And the circuit courts may, in their discretion, upon application as in other cases, divorce from the bonds of matrimony any party who is a resident of this state, and whose husband or wife shall have ob- tained a divorce in any other state. . Limited Divorce (or absolute in the discretion of the court). (1) Extreme cruelty, whether practiced by using personal violence or by other means. CAUSES FOE DIVORCE. 1037 (3) Utter desertion by either of the parties for the term of two years. (3) On complaint of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, shall grossly or wan- tonly and cruelly refuse or neglect so to do. MINNESOTA. (General Statutes 1889.) Absolute Divorce. (1) Adultery. (3) Impotenoy. (3) Cruel and inhuman treatment. (4) When either party, subsequent to the marriage, has been sen- tenced to imprisonment in the state prison. (5) "Wilful desertion of one party by the other for the term of three years next preceding the filing of the complaint. (6) Habitual drunkenness for the space of one year immediately pre- ceding the filing of the complaint. Limited Divorce (to wife only, forever or for limited time.) (1) Cruel and inhuman treatment by the husband of his wife. (2) Such conduct on the part of the husband towards his wife as may render it unsafe and improper for her to cohabit with him. (3) The abandonment of the wife by the husband, and his refusal or neglect to provide for her. MISSISSIPPI CAnnotated Code 1892, see. 1563.) Absolute Divorce. (1) Natural impotency. (3) Adultery, unless it shall appear that it was committed by collu- sion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery. (3) Being sentenced to the penitentiary, and not pardoned before being sent there. (4) Wilful, continued and obstinate desertion for the space of two years. (5) Habitual drunkenness. (6) Habitual and excessive use of opium, morphine or other like drug. (7) Habitual cruel and inhuman treatment. (8) Insanity or idiocy at the time of marriage, if the party complain- ing did not know of such infirmity. (9) Marriage to some other person at the time of the pretended mar- nage between the parties. 1038 DIVORCE STATUTES. (10) Pregnancy of the wife by another person at the time of the mar- riage, if the husband did not know of such pregnancy. (11) Either party may have a divorce if they be related to each other within the degrees of kindred between whom marriage is prohibited by law. Limited Divorce. Limited divorce is not granted, but courts of equity may grant a sep- arate maintenance. MISSOURL (Eevised Statutes 1889, sec. 4500.) Absolute Divoecb. (1) "When either party, at the time of the contract of marriage, waa and still is impotent; or, (2) Had a wife or husband living at the time of the marriage; or, (3) Has committed adultery since the marriage; or, (4) Has absented himself or herself, without a reasonable cause, for the space of one year; or, (5) During said marriage shall have been convicted cf felony or in- famous crime; or, (6) Shall have been addicted to habitual drunkenness for the space of one year; or, (7) Shall be guilty of such cruel or barbarous treatment as to endan- ger the life of the other; or, (8) Shall offer such indignities to the other as shall render his or her condition intolerable ; or, (9) When the husband shall be guilty of such conduct as to consti- tute him a vagrant, within the meaning of the law respecting va- grants; or, (10) Where, prior to the contract of marriage, or the solemnization thereof, either party shall have been convicted of a felony, or infamous crime, in any state, territory or country, without knowledge on the part of the other party of such fact at the time of such marriage; or, (11) Where the intended wife, at the time of marriage, shall have been pregnant by any other man than her intended husband, and with- out his knowledge at the time of such solemnization. There is no limited divorce in Missouri MONTANA. (CompUed Statutes 1887, sec. 999.) Absolute Divorck (1) If either party was, at the time of marriage, and continued to be, impotent naturally; or, CAUSES FOE DIVOECE. lOSO (3) That he or she bad a wife or husband living at the time of mar- riage; or, (3) Tliat either party has committed adultery subsequent to mar- riage; or, (4) Has wilfully absented himself or herself from the other without reasonable cause for the space of one year; or, (5) In favor of the wife if the husband has wilfully deserted and ab- sented himself from his wife, and departed from the territory without intention of returning; or, (6) If either party has been guilty of habitual drunkenness for the space of one year; or, (7) Has been guilty of extreme cruelty; or, (8) Has been convicted of felony or other infamous crime. There is no limited divorce in Montana. NEBRASKA, (Consolidated 1893.) Absohjte Divorce. (1) When adultery has been committed by any husband or wife. (3) When one of the parties was physically incompetent at the time of the marriage. (3) When one of the parties has been sentenced to imprisonment in any prison, jail or house of correction for three years or more; and, no pardon granted after a divorce for this cause shall restore such party to his or her conjugal rights. (4) When either party shall wilfully abandon the other without just cause for the term of two years. (5) When the husband or wife shall have become an habitual drunkard. (6) When either party shall be sentenced to imprisonment for life, and no pardon shall effect a decree for that cause rendered. (7) Extreme cruelty, whether practiced by using personal violence or by other means. (8) Utter desertion of either party for the term of two years. (9) In favor of the wife, when the husband, being of sufficient ability to provide suitable maintenance for her, shall grossly or wantonly and cruelly refuse or neglect so to do. Limited Divorce. For the last three causes limited divorce may also be decreed, NEVADA. (General Statutes 1885.) Absolute Divorce. (1) Impotency at the time of the marriage, continuing to the time of the divorce. 1040 DrVOKCE STATUTES. (2) Adultery since the marriage remaining nnforgiven. (3) Wilful desertion at any time of either party by the other for the period of one year. (4) Conviction of felony or infamous crime. (5) Habitual gross drunkenness, contracted since marriage, of either party, which shall incapacitate such party from contributing his or her^ share to the support of the family. (6) Extreme cruelty in either party. (7) Neglect'of the husband for one year to provide the common neces- saries of life, when such neglect is not the result of poverty on the part of the husband, which he could not avoid by ordinary industry. There is no limited divorce in Nevada. NEW HAMPSHIRE, (General Laws 1878.) Absolute Divorce. (1) Impotency of either party. (3) Adultery of either party. (3) Extreme cruelty of either party to the other. (4) Conviction of either party of crime punishable in this -state with imprisonment for more than one year, and actiial imprisonment under such conviction. (5) When either party has so treated the other as seriously to injure health. (6) When either party has so treated the other as seriously to endan- ger reason. (7) When either party has been absent three years together and has not been heard of. (8) When either party is an habitual drunkard, and has been such for three years together. (9) When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and re- fused to cohabit with the other for six months together. (10) When either party, without sufficient cause and without the con- sent of the other, has abandoned and refused for three years together to cohabit with the other. (11) When the husband has willingly absented himself from the wife for three years together without making suitable provision for her sup- port and maintenance. (12) When the wife of any citizen has willingly absented herself from her husband without his consent for three years together. (13) When the wife of any citizen has gone to reside beyond the limits of this state, and remained absent and separate from her husband ten CAUSES FOE DIVOEOE. 1041 years together without his consent and without returning to claim her marriage rights. (14) When the wife of any alien or citizen of another state living ^separate has resided in this state for three years together, her husband having left the United States with the intention of becoming a citizen of some foreign country, and not having during that period come into this state and claimed his marital rights, and not having made suitable iprovision {or his wife's support and maintenance. There is no limited divorce in New Hampshire. NEW JERSEY. (EeTision 1886.) Absolute Divoeob. (1) Where the parties are within the degrees prohibited by law; and (2) In case of adultery in either of the parties; and, also, (3) For wilful, continuecj and obstinate desertion for the term of two years. (Amended March 5, 1890; April 1, 1887.) Limited Divorce. (1) For extreme cruelty in either of the parties. A divorce from bed and board forever may be granted for — (1) Desertioiu (3) Adultery; and if the applicant has conscientious scruples against absolute divorce, the court may at its discretion deprive the guilty party of dower, etc. (Act of 1891.) In case a husband shall abandon his wife and refuse or neglect to maintain and provide for her, the court may decree support and main- itenance to the wife and the children of the marriage. NEW MEXICO. {Act of 1887.) Absolute Divokoe. (1) Adultery. •{2) Cruel or inhuman treatment. (3) Abandonment. (4) Habitual drunkenness. (5) Neglect on the part of the husband to support the wife. There is no limited divorce in New Mexico. NEW YORK. (Annotated Code 1888, sees. 1756, 1762.) Absolute Divoece. <1) Adultery of either party. 66 1042 DITOECE STATUTES. LmiTED Divorce. (1) The cruel and mhuman treatment of the plaintiff by the defenif- ant. (3) Such conduct on the part ot the defendant toward the plaintiff as may render it unsafe and improper for the former to cohabit -with the latter. (3) The abandonment of the plaintiff by the defendant. (3) When the wife is the plaintiff, the neglect or refusal of the de» fendant to provide for her. NORTH CAROLINA. (Code 1883, sec. 1285.) Absolute Divorce. (1) If either party shall separate from the other and live in adultery, (2) If the wife shall commit adultery. (8) If either party at the' time of marriage was, and still is, naturally impotent. (4) If the wife, at the time of the marriage, be pregnant, and the hus- band be ignorant of the fact of such pregnancy, and be not the father of the child with which the wife was pregnant at the time of the mar- riage. (5) If the husband shall be indicted for a felony and flee the state; and does not return within one year from the time the indictment is found. (Act of 1887.) (6) If, after the marriage, the wife shall wilfully and persistently refuse for twelve months to allow the husband to have sexual inter- course with her. (Act of 1889.) Limited Divorce. (1) If either party shall abandon his or her family; or, (3) Shall maliciously turn the other out of doOrs; or, (8) Shall, by cruel or barbarous treatment, endanger the life of the other; or, . (4) Shall offer such indignities to the person of the other as to render his or her condition intolerable and life burdensome; or, (5) Shall become an habitual drunkard. The facts constituting the grounds for divorce must have existed for at least six months prior to the institution of the suit, excfept where- the wife is the plaintiff, and the husband is removing, or about to re- move, his property and effects from the state, whereby she may be dis- appointed in her alimony. The statute permits the wife to recover alimony without divorce. CAUSES FOE DIVOEOB. 1043 NORTH DAKOTA. See California Code, sec. 92. See, also, page 1076. OHIO. (Compiled Statutes 1886, sec. 5689.) Absolute Divorck (1) That either party had a husband or wife living at the time of the marriage from which divorce is sought. (2) Wilful absence of either party from the other for three years. (3) Adultery. (4) Impotency. (5) Extreme cruelty. (6) Fraudulent contract. (7) Any gross neglect of duty. (8) Habitual drunkenness for three yeara (9) The imprisonment of either party in a penitentiary under sen- tence thereto; but the petition for divorce under this clause shall be filed during the imprisonment of the adverse party. (10) The procurement of a divorce without the state by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while the same remain binding upon the- other party. There is no limited divorce in Ohio, but alimony without divorce may be granted the wife for any of the following causes: (1) Adultery. (2) Any gross neglect of duty. (3) Abandonment of wife without good cause. (4) That there is a separation in consequence of ill-treatment on the part of the husband, whether the wife is maintained by the husband or not. (5) Habitual drunkenness. (6) Sentence to and imprisonment in a penitentiary; in which case the application must be made while the husband is so confined. OKLAHOMA- (Statutes 1893.) Absolute Divoece. Sec. 664 The district court may grant a divorce for either of the following causes: (1) When either of the parties had a prior husbaiid or wife living at the time of the subsequent marriage. (2) Abandonment for one year. 1044 DIVOECE STATUTES. (3) Adultery. (4) Impotency. (5) When the wife, at the time of the marriage, was pregnant by an- other than her husband. (6) Extreme cruelty. (7) Fraudulent contract. (8) Habitual druntenness. (9) Gross neglect of duty. (10) The conviction of a felony, and imprisonment in the penitentiary therefor, subsequent to the marriage. Limited Divorce. No limited divorces are granted, but the wife may obtain alimony without divorce for any of the above causes for divorce in her favor. OEEGON. (Hill, Annotated Laws, sec. 495.) Absolute Divorce. (1) Impotency existing at the time of marriage and continuing to the commencement of the suit. (3) Adulteiy. (3) Conviction of felony. (4) Habitual gross drunkenness contracted since marriage and con- tinuing for one year prior to the commencement of the suit. (5) Wilful desertion for the period of one year. (6) Cruel and inhuman treatment; or, (7) Personal indignities, rendering life burdensome. There is no limited divorce in Oregon. PENNSYLVANIA. CBrightley's Purdon's Digest, 1883.) Absolute Divorce. (1) When either party, at the time of the contract, was, and stiU is, naturally impotent or incapable of procreation; or, (2) That he or she hath knowingly entered into a second marriage in violation of the previous vow he or she made to the former husband or wife, whose marriage is still subsisting; or, (3) That either party shall have committed adultery; or, (4) Wilful and malicious desertion and absence from the habitation of the other, without a reasonable cause, for and during the term and space of two years; or, CAUSES FOE DIVOEOE. 1045 (5) When any husband shall have, by cruel and barbarous treatment, endangeredhis wife's life; or, (6) Offered such indignities to her person as to render her condition intolerable and life bui-densome, and thereby force her to withdraw from his house and family. (7) When the parties are within the degrees of consanguinity or af- finity according to the table established by law. (8) Where the alleged marriage was procured by fraud, force or coer- cion, and has not been subsequently confirmed by the acts of the in- jured party. (9) Where either of the parties shall have been convicted of a felony, and sentenced by the proper court either to the county prison of the proper county, or to the penitentiary of the proper district, for any term exceeding two years. (10) Where the wife shall have; by cruel and barbarous treatment, rendered the condition of her husband intolerable or life burdensome. Absolute Divokce (to the wife). (Act of 1893.) (1) Adultery committed by the husband. (3) Wilful and malicious desertion on the part of the husband, and absence from the habitation of the wife, without reasonable cause, for and during the term and space of two years. (3) Where any husband, by cruel and barbarous treatment, endangered his wife's Ufe, or offered such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family. (4) Where it shall be shown to the court, by any wife, that she was formerly a citizen of this commonweatli, and that, having intermarried with a citizen of any other state or any foreign country, she has been compelled to abandon the habitation and domicile of her husband in such other state or foreign country by reason of (the above causes, 1, S and 3), and has thereby been forced to retvirn to this commonweath in which she had her former domicile. (The wife may file her petition for divorce on the ground of deser- tion, as described in section j2, any time after six months from the de- sertion; but no decree shall be rendered until two years from such desertion.) Limited Divorce (to wife only). (1) When any husband shall maliciously abandon his family; or, (3) Turn his wife out of doors; or, (3) By cruel and barbarous treatment endanger her life; or (4) Offer such indignities to her person as to render her condition in- tolerable or life burdensome, and thereby force her to withdraw from his house and family. (5) Adultery, 1046 DIVOECE STATUTES. RHODE ISLAND. (Public Statutes 1882, ch. 167.) Absolute Ditoecb. (1) In case of any marriage originally void or voidable by law. (2) Where either party is for crime deemed to be, or treated as if, civ- illy dead. (3) Where either party, from absence or other circumstances, may be presumed to be naturally dead. (4) Impotency. (5) Adultery. (6) Extreme cruelty. (7) Wilful desertion for five years of either of the parties, or for such desertion for a shorter period of time, in the discretion of the court. (8) Continued drunkenness. (9) Neglect or refusal on the part of the husband, being of sufficient ability, to provide necessaries for the subsistence of his wife. (10) Any other gross misbehavior and wickedness in either of the par- ties repugnant to and in violation of the matriage covenant. (11) Whenever in the trial of any petition for divorce from the bond of marriage, or from bed and board and future cohabitation, it shall appear that the parties have lived separate and apart from each other for the space of at least ten years, the court, on motion of either party, may enter a decree divorcing both parties from the bond of marriage, and may make provision for alimony. (Act of 1893.) Limited Divoece. Limited divorces, imtil the parties maybe reconciled, maybe granted for any of the causes for which, by law, a divorce from the bond of marriage may be decreed, and for such other causes as may seem to require the same. SOUTH DAKOTA. See California Code, sec. 138. See, also, page 1076. TENNESSEE. (Sees. 3306-3308, Code 1884.) Absolute Divoece. (1) That either party, at the time of the contract, was, and still is, naturally impotent and incapable of procreation. (3) That either party has knowingly entered into a second mar- riage, in violation of a previous marriage still subsisting. (3) That either party has committed adultery. CAUSES FOE DIVOECB. 1047 (4) Wilful or malicious desertion, or absence of either party without a reasonable cause for two whole years. (5) Being convicted of any crime which, by the laws of the state, renders the party infamous. (6) Being convicted of a crime which, by the laws of the state, is de- clared to be a felony, and sentenced to confinement in the penitentiary. (7) "When either party has attempted the life of the other, by poison, or any other means showing malice. (8) Refusal on part of the wife to remove with her husband to this etate witlaout a reasonable cause, and wilfully absenting herself from him for two years. (9) "When the woman was pregnant at the time of the marriage by «,nother person, without the knowledge of the husband. (10) Habitual drunkenness of either party, when the husband or wife ihas contracted the habit of drunkenness after marriage. Limited Divoece. To wife only (or absolute divorce, at the discretion of the court): (1) When the husband is guilty of cruel and inhuman treatment; or, (3) Such conduct towards his wife as renders it unsafe and improper for her to cohabit with him and be under his dominion and control. (3) When he has offered such indignities to her person as to render her condition intolerable and thereby forced her to withdraw. (4) When he has abandoned her; or, (5) Turned her out of doors and refused or neglected to provide for her. TEXAS. CSaylea' Civii Statutes, art. 2861.) Absolute Divoece. (1) When either the husband or wife is guilty of excesses, cruel treat- ment or outrages towards the other, if such ill-treatment is of such a, nature as to render their living together insupportable. (3) In favor of the husband where his wife shall have been taken in adultery; or, (3) Where she shall have voluntarily left his bed and board for the ■space of three years with the intention of abandonment. (4) In favor of the wife where the husband shall have left her for three years with the intention of abandonment; or, (5) "Where he shall have abandoned her, and lived in adultery with ^another woman. (6) In favor of either husband or wife, when the other shall have been convicted, after marriage, of a felony and imprisoned in the state ►prison; provided, that no suit for divorce shall be sustained because of i;he conviction of either party for felony until twelve months after final 1048 DITOEOE STATUTES. judgment of conviction, nor then if the governor shall have pardoned the convict; provided that the husband has not been convicted on the- testimony of the wife, nor the wife on the testimony of the husband. There is no limited divorce in Texas. UTAH. (Compiled Laws 1888, sec. 2602.) Absolute Divorce. (1) Impotency of the defendant at the time of marriage. (3) Adultery committed by the defendant subsequent to marriage. (3) "Wilful desertion of the plaintiff by the defendant for more than' one year. (4) Wilful neglect of the defendant to provide for his wife the com- mon necessaries of life. (5) Habitual drunkenness of the defendant. (6) Conviction of the defendant for felony. (7) Cruel treatment of the plaintiff by the defendant to the extent ofr causing great bodily injury or great mental distress to the plaintiff. There is no limited divorce in Utah. VERMONT. (ReTised Laws, sec. 2362.) Absolute Dtvoece. (1) For adultery in either party. (3) When either party is sentenced to confinement to hard labor in' the state prison for Ufe, or for three or more years, and is actually con- fined at the time. And no pardon granted to the party so sentenced' shall restore such party to his or her conjugal rights. (3) For intolerable severity in either party. (4) For wilful desertion for three consecutive years. (5) When either party has been absent for seven years, and not heard' of during that time. (6) On petition of the wife when the husband, being of sufficient pe- cuniary ability to provide suitable maintenance for her, without cause- grossly or wantonly and cruelly refuses or neglects so to do. There is no limited divorce in Vermont. VIRGINIA. CCode 1887, sec. 2257.) Absolute Divorce. (1) Adultery. (3) Natural and incurable impotency of body existing at the time o£^ entering into the matrimonial contract. CAUSES FOK DITOECE. 1049' (3) Where either of the parties is sentenced to confinement in the penitentiary. And no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights. (4) Where prior to the marriage either party, without the knowledge of the other, has been convicted of an infamous offense. (0) Where either party charged with an oflEense punishable with death or confinement in the penitentiary has been indicted, is a fugitive from justice, and has been absent for two years. (6) Where either party wilfully deserts or abandons the other for fiver years. (7) To the husband where, at the time of the marriage, the wife, without the knowledge of the husband, was with child by some person other than the husband; or, (8) Prior to such marriage, had been, without the knowledge of th& husband, a prostitute. Limited Divorce. (1) Cruelty. (2) Eeasonable apprehension of bodily hurt. (3) Abandonment or desertion. When a divorce from bed and board has been decreed for this cause and five years have elapsed since aban- donment or desertion without reconciliation, the court may, on applica- tion of the injured party, decrea a divorce from the bonds of matrimony, WASHINGTON. (Hill's Annotated Statutes 1891, sec. 764.) Absolute Divorce. (1) When the consent to the marriage of the party applying for the divorce was obtained by force or fraud, and there has been no subse- quent voluntary cohabitation. (3) For adultery on the part of the wife or of the husband, when un- forgiven, and application is made within one year after it shall come ta his or her knowledge. (3) Impotency. (4) Abandonment for one year. (5) Cruel treatment of either party by the other; or, (6) Personal iniquities rendering Ufe burdensome. (7) Habitual drunkenness of either party. (8) Neglect or refusal of the husband to make suitable provisions for his family. (9) The imprisonment of either party in the penitentiary, if com- plaint is filed during the term of such imprisonment. (10) Any other cause deemed by the court sufficient, and when the court shall be satisfied that the parties can no longer live together. 1050 DrVOECE STATUTES. (11) In case of incurable chronic mania or dementia of either party, having existed ten years or more, the court may, in its discretion, jgrant a divorce. There is no limited divorce in Washington. WEST VIRGINIA. (Code 1887, ch. 64.) Aesoltjte Divoeck (1) Adultery. (3) Natural or incurable impotency of body, existing at the time of entering into the matrimonial contract. (3) Where either of the parties is sentenced to confinement in the penitentiary; and no pardon granted to the person so sentenced shall restore such party to his or her conjugal rights.. (4) Where, prior to marriage, either party, without the knowledge of the other, had been convicted of an infamous offense. (5) Where either party wilfully abandons or deserts the other for three years. (6) Where at the time of the marriage the wife, without the knowl- «dg6 of the husband, was enceinte by some person other than the hus- band; or, (7) Where the wife, prior to the marriage, had been, without the knowledge of the husband, notoriously a prostitute; or, (8) Where the husband, prior to such marriage, had been, without the knowledge of the wife, notoriously a licentious person. Limited Divorce. (1) Cruel or inhuman treatment. (3) Eeasonable apprehension of bodily hurt. (3) Abandonment. i (4) Desertion. (5) Where either party after marriage becomes an habitual drunkard. WISCONSIN. CEevised Statutes 1878, sec. 2356.) Absolute Divorce. § 23S5. When either party shall be sentenced to imprisonment for life, the marriage shall be thereby absolutely dissolved, without any judgment of divorce or other legal process; and no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights. (See interpretation of this statute in sec. 366.) (1) Adultery. (2) Impotency. CAUSES FOR DIVOECE. 1051 (3) When either party subsequent to the marriage has been sentenced to imprisonment for three years or more; and no pardon granted after divorce for this cause shall restore the party sentenced to his or her conjugal rights. (4) The wilful desertion of one party by the other for the term of one year next preceding the commencement of the action. (5) When the treatment of either party by the other has been cruel and inhuman, whether practiced by using personal violence or by any other means; or, (6) When the wife shall be guilty of like cruelty to her husband or be given to intoxication. (7) Where the husband or wife shall have been an habitual drunkard for the space of one year immediately preceding the commencement of the action. (8) Whenever the husband and wife sbaU have voluntarily lived en- tirely separate for the space, of five years next preceding the com- mencement of the action, a divorce may be granted at the suit of either party. Limited Divoece (or absolute at discretion of the court). (1) For the fourth, fifth, sixth and seventh causes above specified. (2) For extreme cruelty of either party. (3) On the complaint of the wife, when the husband, being of suffi- cient ability, shall refuse or neglect to provide for her; or, (4) When his conduct toward her is such as may render it unsafe and improper for her to live with him. WYOMING. CKe-rised Statutes 1887, see. 1571.) Absolute Divorce. (1) When adultery has been committed by any husband or wife. (2) When one of the parties was physically incompetent at the time of the marriage, and the same has continued to the time of the divorce. (3) When one of the parties has been convicted of a felony and sen- tenced to imprisonment therefor in any prison, and no pardon granted after divorce for this cause shall restore the party sentenced to his or her conjugal rights. (4) When either party has wilfully deserted the other for the term of one year. (5) When the husband or wife shall have become an habitual drunk- ard, (6) When one of the parties has been guilty of extreme cruelty to the other. 1052 DITOKCE STATUTES. (7) "When the husband for the period of one year has neglected to provide the common necessaries of life, when such neglect is not the result of poverty on the part of the husband, which he could not avoid by ordinary industry. (8) When either party shall offer such indignities to the other as shall render his or her condition intolerable. (9) When the husband shall be guilty of such conduct as to consti- tute him a vagrant within the meaning of the law respecting vagrancy. (10) When, prior to the marriage, either party shaU have been con- victed of a felony or infamous crime in any state, territory or count[r]y without knowledge on the part of the other party of such fact at the time of such marriage. (11) When the intended wife at the time of contracting -marriage, or at the time of the solemnization thereof, shall have been pregnant by any other man than her intended husband, and without his knowledge at the time of such solemnization. There is no limited divorce in Wyoming. DOMICILE OF PARTIES. 1053 DOMICILE OF PARTIES. ALABAMA. (Civil Code 1886.) § 2328. No bill can be filed for a divorce on the ground of voluntary abandonment, unless the party applying therefor, whether husband or wife, has bona ftde been a resident of the state for three years next before the filing of tie bill, which must be alleged in the bill and proved. § 2329. Bills for divorce may be filed in the chancery district in which the defendant resides, or in the district in which the parties resided when the separation occurred; if the defendant is a non-resident, then in the district in which the other party to the marriage resides. § 2330. When the defendant is a non-resident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the biU and proved. ARIZONA. .(Eevised Statutes 1887.) § 2112. No suit for divorce from the bonds of matrimony shall be maintained in the courts unless the complainant for such divorce shall, at the time of exhibiting his or her complaint, be an actual bona fide resident of the territory, and shall have resided in the county where ihe suit is filed six months next preceding the filing of the, suit. ARKANSAS. CDigest 1884.) § 2562. The plaintiff, to obtain a divorce, must allege and prove in ■addition to a legal cause for divorce: First. A residence in the state for one year next before the com- mencement of the action. Second. That the cause for divorce occurred or existed in this state, or, if out of the state, either that it was a cause for divorce in the state where it occurred or existed, or that the plaintiff's residence was then in this state. CALIFORNIA. (Amendment of 1891.) § 128. A divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the ac- tion is brought three months, next preceding the commencement of the action. 1054 . DIYOECE STATUTES. COLORADO. (Session Law 1893.) § 6. No person shall be entitled to a divorce in this state unless such person shall have been a bona fide resident and citizen of the state for one year prior to the commencement of the action, which fact shall be proven by the evidence of at least one credible witness other than- the plaintiff; Provided, that this section shall not affect applications for divorce upon the grounds of adultery or extreme cruelty, where the offense- Tvas committed within the state; • I^ovided, further, that such suit shall only be brought in the county in which such plaintiff or defendant reside, or where such defendant, last resided. CONNECTICUT. CGeneral Statutes 1888.J § 2806. If the plaintiff shall not have continuously resided in this state three years next before the date of the complaint, it shall be dis- missed, unless the cause for divorce shall have arisen subsequently to the removal into this state, or unless the defendant shaU have continu- ously resided in this state three years next before the date of the com- plaint, and actual service shall have been made upon him, or unless the alleged cause is habitual intemperance or intolerable cruelty, and the plaintiff was domiciled in this state at the time of the marriage, and before bringing the complaint has returned to this state with the inteur tion of permanently remaining. DAKOTA. See North Dakota and South Dakota. FLORIDA. CRevised Statutes 1891.) § 1478. In order to obtain a divorce, the complainant must have re- sided two years in the state of Florida before filing the bilL GEORGIA. (Laws 1893 ) No court in this state shall grant divorce of any character to any person or persons who has not been a bona fide resident of the state twelve months before the filing of said application for divorce. IDAHO. (Revised Statutes 1887.) § 2469. A divorce must not be granted unless the plaintiff has been a resident of the territory for six months next preceding the com- mencement of the action. DOMICILE OF PAETIE3. 1055 ILLINOIS. (Starr's Annotated Statutes 1885.) § 3. No person shall be entitled to a divorce in pursuance of the pro- visions of this act who has not resided in the state one whole year next before filing his or her bill or petition, unless the offense or injury- complained of was committed within this state, or whilst one or both- of the parties resided in this state. INDIANA. (Eevised Statutes 1888.) § 1031. Divorce may be decreed by the superior and circuit courts of this state on petition filed by any person who, at the time of the filing of such petition, is and shall have been a bona fide resident of the state for the last two years previous to the filing of the same, and a bona fide resident of the county at the time of and for at least six months imme- diately preceding the filing of such petition; which bona fide residence shall be duly proven by such petitioner to the satisfaction of the court trying the same, by at least two witnesses who are resident freeholders- and householders of the state, And the plaintiflE shall, with his peti- tion, file with the clerk of the court an affidavit subscribed and sworn to by himself, in which he shall state the length of time he has been a. resident of the state, and stating particularly the place, town, city or township in which he has resided for the last two years past, and stat- ing his occupation, which shall be sworn to before the clerk of the- court in which said complaint is filed. IOWA. (McCHain's Annotated Statutes 1888.) § 3413. Except where the defendant is a resident of this state served! by personal service, the petition for divorce, in addition to the facts on account of which the plaintiff claims the relief sought, must state that the plaintiff has been for the last year a resident of the state, specify- ing the tovsTi and county in which he has so resided, and the entire length of his residence therein, after deducting aU absences from the state; that he is now a resident thereof; that such residence has been in good faith and not for the purpose of obtaining divorce only. KANSAS. § 640. The plaintiff in an action for divorce must have been an act- ual resident, in good faith, of the state, for one year next preceding the filing of the petition, and a resident of the county in which the action. is brought at the time the petition is filed. 1056 DIVORCE STATUTES. KENTUCKY. § 4 Action for divorce must be brought in the county where the wife usually resides, if she has an actual residence in the state; if not, then in the county of the husband's residence; and no such action shall "be brought by one who has not been a continuous resident of this state for a year next before its institution; nor unless the party coiuplaining had an actual residence here at the time of the doing of the act com- plained of, shall a divorce be granted for anything done out of the state, unless it was also a cause for divorce by the law of the country where the act was done. MAINE. (Act 1893.) §1. A divorce . . . may be decreed, . . . in the county where .either party resides at the commencement of proceedings, . . . provided the parties were married in this state or cohabited here after marriage, or if the libelant resides here when the cause for divorce ac- crued, or had resided here in good faith for one year prior to the com- mencem.ent of proceedings. MAEYLAND. (Public General Laws 1888.) § 35. The courts of equity of this state shall have jurisdiction of all applications for divorce; and any person desiring a divorce shall file his or her bill in the court, either where the party plaintiff or defend- ant resides; or, if the party against whom the bill is filed be a non- resident, then such bill may be filed in the court where the plaintiff resides. MASSACHUSETTS. (Public Statutes 1882.) § 4 Except as provided in the foUowing section, no divorce shall be decreed if the parties have never lived together as husband and wife in the commonwealth; nor shall a divorce be decreed for a cause oc- curring in another state or country, unless before such cause occurred the parties had lived together as husband and wife in the common- wealth, and one of them lived in the commonwealth at the time when the cause occurred. § 5. When the libelant has resided in the commonwealth for five years next preceding the filing of the libel, or, if the parties were in- habitants of the commonwealth at the time of the marriage, when the libelant has been such an inhabitant for three years next preceding such filing, a divorce may be decreed for any cause allowed by law, whether it occurred in the commonwealth or elsewhere, unless it ap- pears that the libelant has removed into the commonwealth for the purpose of obtaining a divorce. DOMICILE OF PAE'nES. 1057 MICHIGAN. (Howell's Annotated Statutes 1882.) § 6239. No divorce shall be granted unless the party exhibiting the petition or bill of complaint therefor shall have resided in this state one year immediately preceding the time of exhibiting such petition or bill; or unless the marriage was solemnized in this state, and the complainant shall have resided in this state from the time of such mar- riage to the time of exhibiting the i>etition or biU. CAct of 1887.) § 9. No divorce shall be granted unless the party exhibiting the peti- tion or bill of complaint therefor shall have resided in the state one year .immediately preceding the time of exhibiting such petition or "bill, or unless the marriage was solemnized in the state, and the com- plainant shall have resided in this state from the time of such marriage to the time of exhibiting the petition or biU; and when the cause for divorce occurred out of this state, no divorce shall be granted unless the complainant or defendant shall have resided within this state two years next preceding the filing of the petition or bill; and no proofs or testimony shall be taken in any cause until four months after the filing of such petition or bill for divorce, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the pur- pose of perpetuating such testimony. MINNESOTA. (Statutes 1878.) § 8. No divorce shall be granted unless the complainant has resided in this state one year immediately preceding the time of exhibiting the complaint, except for adultery committed while the complainant was a resident of this state. MISSISSIPPI (Annotated Statutes 1892.) § 1567. The jurisdiction of the chancery court in suits for divorce shall be confined to the following classes of cases: (a) Where both parties were domiciled within this state when the suit was commenced; or, (6) Where the complainant was domiciled within this state when the suit was commenced and the defendant was personally served with process within this state; or, (c) Where one of the parties was domiciled within this state when the action was commenced, and one or the other of them actually resided within this state for one year next preceding the commencement of the suit. 67 1058 DITOKCE STATUTES. MISSOURL CElevised Statutes 1889.) § 4503. No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before filing of the petition, unless the offense or injury complained of was committed within this state, or whilst one or both of the parties resided within this state. MONTANA. § 1001. No person shall be entitled to a divorce in pursuance of the provisions of this chapter who has not resided in this territory one whole year previous to filing his or her bill, unless the offense or injury complained of was committed within this territory, or whilst one or both of such parties resided in this territory. NEBRASKA. (Cobbey's Statutes 1893.) § 1424 No divorce shall be granted unless the complainant shall have resided in this state for six months immediately preceding the time of filing the complaint, or unless the marriage was solemnized in this state, and the applicant shall have resided therein from the time of marriage to the time of filing the complaint. NEVADA. (Gteneral Statutes 1885.) § 491. Divorce from the bonds of matrimony may be obtained by complaint under oath to the district court of the county in which the cause therefor shall have accrued; or in which the defendant shall re- side or be found; or in which the plaintiff shall reside, if the latter be either the county in which the parties last cohabited, or in which the plaiirtiff shall have resided six months before the suit be brought. . , . NEW JERSEY. (Session Laws 1889.) The court of chancery shall have jurisdiction of all causes of divorce and of alimony or maintenance by this act directed and allowed; pro- vided the parties complainant and defendant, or either of them, were or shall be inhabitants of this state at the time of the injury, desertion or neglect complained of. or where the marriage shall have been solem- nized or taken place within this state, and the , complainant shall have been an actual resident in the state at the time of the injury, desertion or neglect complained of, and at the time of exhibiting the bill; or where the adultery was committed in this state, and the parties com- DOMICILE OF PAETIES. 1059 plainant and defendant, or either of them, reside in this state at the time of exhibiting the bill; or where the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint; and the complainant or defendant shall have been a resident of this state for the terra of two years, during which such desertion shall have continued. NEW MEXICO. (Compiled Laws 1884.) § 2289. Hereafter no person shall commence any action for divoi'ce in any court of this territory unless such person has been a bona fide resident of the territory for the period of six months. Evidence of such residence, satisfactory to the judge trying the case, shall be re- quired by such judge before granting any judgment of divorce. NEW YORK. (Annotated Ctode 1888.) § 1756. In either of the following cases, a husband or a wife may maintain an action against the other party to the marriage, to procure a judgment divorcing the parties and dissolving the marriage, by rea- son of the defendant's adultery: 1. Where both parties were residents of the state when the oflfense was committeil. 8. Where the parties were married within the state. 3. Where the plaintiff was a resident of the state when the offense was committed, and is a resident thereof when the action is commenced. 4. Where the offense was committed within the state, and the injui-ed party, when the action is commenced, is a resident of the state. NORTH CAROLINA. (Code 1883.) § 1287. The plaintiff in a complaint seeking either divorce or alimony, or both, shall file with his or her complaint an affidavit . . . that complainant has been a resident of the state for two years next preced- ing the filing of the complaint. NORTH DAKOTA. § 2578. A divorce must not be granted unless the plaintiff has, in good faith, been a resident of the territory ninety days next preceding the commencement of this action. OHIO. (Eevised Statutes 1886.) § 5690. The plaintiff, except in an action for alimony alone, shall have been a resident of the state at least one year before filing the petition: 1060 DIVOKCE STATUTES. all actions for divorce or fo* alimony shall be brought in the county where the plaintiff has a bona fide residence at the time of filing the petition, or in the county where the cause of action arose; and the court shall hear and determine the same, whether the marriage took place or the cause of divorce occurred within or without the state. OKLAHOMA. (Code 18930 § 665. The plaintiff in an action for divorce must have been an actual resident, in good faith, of the territor;^ for ninety days next preceding the filing of the petition, and a resident of .the county in which the ac- tion is brought at the time the petition is filed. OREGON. (Hill's Annotated Laws 1987.) § 497. In a suit for the dissolution of the marriage contract, the plaintiff therein must be an inhabitant of the state at the commence- ment of the suit and for one year prior thereto, which residence shall be sufficient to give the court jurisdiction, without regard to the place where the marriage was solemnized or the cause of suit arose. PENNSYLVANIA, (Laws 1891.) I § 1. Be it enacted, etc., that the jurisdiction conferred in and by said act to which this is a supplement is hereby extended to all cases of divorce from the bonds of matrimony and from bed and board, and for the causes therein mentioned, where it shall be shown to the court by the petition of any wife, that she was formerly a citizen of this com- monwealth, and that, having intermarried with a citizen of any other state or any foreign country, she has been oompellfed to abandon the habitation and domicile of her husband in such other state or foreign country by reason of his adultery or of his cruel and barbarous treat- ment, or of such indignities to her person as to render her condition intolerable and her life burdensome, or wilful or malicious desertion and absence from the habitation of the other without a reasonable cause, and has thereby been forced to return to her former domicile within this commonwealth: Provided, that where in any such case personal services of the subpcena cannot be made upon such husband by reason of his non-residence within this commonwealth, the court, before entering a decree of divorce, shall require proof that, in addition to the publication now required by law, notice of said proceedings has been given to such non-resident husband either by personal service or by registered letter to his last known place of residence, and that a full opportunity has thereby been afforded to him to appear and defend DOMICILE OF PAE'HES. 1061 in said suit: And provided further, that no application for such divorce shall be made unless the applicant therefor shall be a citizen of this commonwealth or shall have actually resided therein for the term of one year prior to filing her petition, as provided by the existing laws of this commonwealth. RHODE ISLAND. (Public Statutes 1S82.) § 15. Said court shall have no cognizance of or jurisdiction over any petition for the same or either of the same, unless the petitioner shall, at the time of preferring such petition, be a domiciled inhabitant of this state and have resided therein for a period of one year next before the preferring of such petition. SOUTH DAKOTA. (Se-sioii Laws :893.) § 2578. A divorce must not be granted unless the plaintiff in good faith has been a bana fide resident of the state of South Dakota for at least six months next preceding the commencement of the action; and in no case shall a divorce be granted without personal service of the summons within this state, or personal service of the summons and order of publication in case of a non-resident defendant, until the plaintiff shall have been a bona fide resident of this state for one year next preceding the granting of such divorce. TENNESSEE. (Code, M. & V. 1884.) § 3308. A divorce may be granted for any of the aforesaid causes, though the acts complained of were committed out of the state, or the petitioner resided out of the state at the time, no matter where the other party resides, if the petitioner has resided in this state two years next preceding the filing of the petition. TEXAS. (Sayles' Texas Civil Statutes 1888.) § 2863. No suit for divorce from the bonds of matrimony shall be maintained in the courts, unless the petitioner for such divorce shall, at the time of exhibiting his or her petition, be an actual bona fide in- habitant of the state, and shall have resided in the county where the suit is filed, six months next preceding the filing of the suit. UTAH. (Compiled Laws 1888.) § 2602. Proceedings in divorce shall be commenced and conducted in the manner provided by law for proceedings in civil cases, except as hereinafter provided, and the court may decree a dissolution of the 1062 DIVOECE STATUTES. marriage contract between the plaintiff and defendant in all cases wherein the plaintiff, for one year next prior to the commencement of the proceedings, shall have been an actual and bona fide resident of the county within the jurisdiction of the court. VERMONT. (Revised Laws 1880.) § 2365. The libelant petitioning for a divorce for adultery or intol- erable severity or wilful desertion, when the cause of action accrued without the state, shall have been an inhabitant of the state two years next previous to the bringing of the petition, and of the county where such petition is preferred one year next previous to the term of the court to which the petition is preferred, VIRGINIA. (Code 1887.) § 2359. The circuit and" corporation courts, on the chancery side thereof, shall have jurisdiction of suits for annulling or affirming mar- riages and for divorces. No suit for annulling a marriage or for divorce shall be maintainable unless one of the parties has been domiciled in this state for at least one year preceding the commencement of the suit; nor shall any suit for affirming a marriage be maintainable unless one of the parties be domiciled in this state at the time of bringing such suit. The suit, in either case, shall be brought in the county or corpo- ration in which the parties last cohabited, or (at the option of the plaintiff) in the county or corporation in which the defendant resides, if a resident of this state, and if not a resident, in the county or corpo- ration in which the plaintiff resides. WASHINGTON. (Hill's Annotated Statutes 1891.) § 766. Any person who has been a resident of the state for one year may file his or her complaint for a divorce or decree of nullity of mai"- riage, under oath, in the superior court of the county where he or she may reside, and like proceeding shall be had thereon as in civil cases. WEST VIRGINIA. (Code 1887.) Ch. 64, § 7. The circuit court, on the chancery side thereof, shall have jurisdiction of suits for annulling or afiSrming marriages, or for di- vorces. No such suit shall be maintainable unless the parties, or one of them, shall have resided in the state one year next preceding the time of bringing such suit. The suit shall be brought in the county in which the parties last cohabited, or (at the option of the plaintiff) in the county in which the defendant resides, if a resident of this state; but if not, then in the county in which the plaintiff resides. DOMICILE OF PAETIE8. 1063^ WISCONSIN. (Revised Statutes 1878.) § 2339. No divorce shall be granted unless the plaintiff shall have re- sided in this state one year immediately preceding the time of the com- mencement of the action, except for adultery alleged to have been committed vs^hile the plaintiff vs'as a resident of this state ; or unless the marriage was solemnized in this state, and the plaintiff shall have re- sided therein from the time of such marriage to the time of the com- mencement of the action; or unless the action be brought by the wife, and the husband shall have resided in this state for one year next pre- ceding the commencement thereof. WYOMING. (Revised Statutes 1887.) § 1573. No divorce shall be granted unless the plaintiff shall have re- sided in this territory for six months immediately preceding the time of filing the petition; or unless the marriage was solemnized«in this territory, and the applicant shall have resided therein from the time of the marriage to the time of filing the petition. 1064 DIVOECE STATUTES. ENGLAND. (Statutes 20 & 21 Vict., oh. 85.) Causes foe Absolute Divoece. § 37. It shall be lawful for any husband to present a petition to the said court, praying that his marriage may be dissolved on the ground, that his wife has since the celebration thereof been guilty of adultery- and it shall be lawful for any wife to present a petition to the said court, praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy or bes-- tiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion without reasonable excuse for two years or up- wards. And every such petition shall state as distinctly as the nature of the case permits the facts on which the claim to have such marriage dis- solved is founded : provided, that for the purposes of this act incestuous adultery shaU. be taken to mean adultery committed by a husband with a woman with whom if his wife were dead he could not lawfully con- tract marriage by reason of her being within the prohibited degrees of consanguinity or affinity. And bigamy shall be taken to mean marriage of any person, being, married, to any other person during the life of the former husband or wife, whether the second marriage shall have taken, place within the dominions of her majesty or elsewhere. Causes foe Judicial Sepaeation. § 7. No decree shall hereafter be made for a divorce a mensa et thoro;: but in all cases in which a decree for a divorce a mensa et thoro might now be pronounced, the court may pronounce a decree for a judicial separa- tion, which shall have the same force and the same consequence as a divorce a mensa et thoro now has. § 16. A sentence of judicial separation (which shall have the effect of a divorce a mensa et thoro under the existing law and such other legal effect as herein mentioned) may be obtained, either by the hus- band or wife, on the ground of adultery, or cruelty, or desertion with- out cause for two years and upwards. Adulteeee a Co-eespondent. § 28. Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition. ENGLAND. 106& unless on special grounds to be allowed by the court he shall be excused from so doing; and on every petition presented by a wife for dissolu- tion of marriage, the court, if it sees fit, may 'direct that the person with whom the husband is alleged to have committed adultery be made a respondent ; and the parties or either of them may insist on having the contested matters of fact tried by a jury as hereinafter mentioned.. When Divorce Refused. § 29. Upon any such petition for the dissolution of a marriage, it shall be the duty of the court to satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or no the petitioner has been in any manner accessory to or conniving at the adultery, or has condoned the same, and shall also inquire into any counter-charge which may be made against the petitioner. §30. In case the court, on the evidence in relation to any such petition, shall not be satisfied that the alleged adultery has been com- mitted, or shall find that the petitioner has during the marriage been accessory to or conniving at the adultery of the other party to the mar- Tiage, or has condoned the adultery complained of, or that the peti- tion is presented or prosecuted in collusion with either of the respond- ents, then and in any of said cases the court shall dismiss the said petition. § 31. In case the court shall be satisfied on the evidence that the case of the petitioner has been proved, and shall not find that the petitioner lias been in any manner accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or pros- ecuted in collusion with ^ther of the respondents, then the court shall pronounce a decree declaring such marriage to be dissolved: provided always, that the court shall not be bound to pronounce such decree if it shall find that the petitioner has during the marriage been guilty of adultery, or if the petitioner shall, in the opinion of the court, have been guilty of unreasonable delay in presenting or pros- ecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or her- self from the other party before the adultery complained of, and without reasonable excuse, or of such wilfxil neglect or misconduct as has conduced to the adultery. Decree Nisl § 7. " Every decree for a divorce shall in the first instance be a de- cree msi, 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 period any person shall be at liberty, in such manner 1066 DIVOECE STATUTES. as the court shall by general or special order in that behalf from time to time direct, to show cause why the said decree should not be macte 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 so shown the court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further in- quiry, or otherwise as justice may require." Intekvention of Queen's Pkoctor. " And, at any time during the progress of the cause, or before the de- cree is made absolute, any person may give information to her majesty's proctor of any matter material to the due decision of the case, who may thereupon take such steps as the attorney-general may deem nec- essary or expedient; and if from any information or othei-wise the said proctor shall suspect that any parties to the suit are or have been act- ing in collusion for the purpose of obtaining a divorce contrary to the- justice of the case, he may, under the direction of the attorney-general, and by leave of the court, intervene in the suit, alleging such case of collusion, and retain counsel and subpoena witnesses to prove it; and it shall be lawful for the court to order the costs of such counsel and witnesses, and otherwise, arising, from such intervention, to be paid by the parties or such of them as it shall see fit, including a wife if she have separate property; and in case the said proctor shall not thereby be fully satisfied his reasonable costs, he shall be entitled to charge and be reimbursed the difference as a part of the expense of his of- fice." This act was, by its terms.-to continue only for a limited period; but it was made perpetual by 25 & 26 Vict., ch. 81. By 29 & 30 Vict., <;h. 33, § 3, it was provided that " no decree nisi for a divorce shall be made absolute until after the expiration of six calendar months from the pronouncing thereof, unless the court shall, under the power now vested in it, fix a shorter time." By 36 Vict., ch. 31, these several pro- visions were extended to suits for the nullity of marriage. Ad Interim Oeders and Final Bbcrees Relating to Temporary Alimony, Custody, Maintenance and Education op Children. By 20 & 31 Vict., ch. 85, § 35, it is provided that in any suit or other proceeding for obtaining a judicial separation or a decree of nullity of 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 educa- tion 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 pro- tection of the court of chancery. ENGLAND, 1067 Alimony on Dissolution of Mareiage. Section 32 of the same act provides that the court may, if it shall think fit, on any such decree, order that the husband shall, to the sat- isfaction of the court, secure to the wife svich 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; and for that purpose may refer it to any one of the conveyancing counsel of the court of chancery to settle, and approve of a proper deed or instru- ment to be executed by all necessary parties; and the said court may in such case, if it shall see fit, suspend the pronouncing of its decree until such deed shall have been duly executed. And upon any petition for dissolution of marriage the court shall have the same power to make interim orders for payment of money, by- way of alimony or otherwise, to the wife, as it would have in a suit instituted for judicial separation. § 34 In all cases in which the court shall make any decree or order for alimony, it may direct the same to be paid either to the wife herself or to any trustee on her behalf, to be approved by the court, and may impose any terms or restrictions which to the court may seem expedi- ent, and may from time to time appoint a new trustee, if for any reason it shall appear to the court expedient so to do. § 45. In any case in which the court shall pronounce a sentence of divorce or judicial separation for adultery of the wife, if it shall be made to appear to tlie court that the wife is entitled to any property either in possession or reversion, it shall be lawful for the court, if it shall think proper, to order such settlement as it shall think reasonable to be made of such property, or any part thereof, for the benefit of the in- nocent party, and of the children of the marriage, or either or any of them. By 33 & 33 Vict., ch. 61, sec. 5, the court, after a final decree of nuUity of marriage or dissolution of marriage, may inquire into the existence of any ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the application of the whole or a portion of the prop- erty settled, either for the benefit of the children of the marriage or of their respective parents, as to the court shall seem fit. Alimony Wheee the Husband Has No Property. The act 29 & 30 Vict., ch. 82, § 1, empowers the court, in every case where a decree for dissolution of marriage isi obtained against a hus- band who has no property on which the payment of a gross or annual sum of money can be secured to the wife, but he is able, nevertheless, to make a monthly or weekly payment to the wife during their joint lives, to make an order on the husband for payment to the wife during 1068 DIVOECE STATUTES. their joint lives of such monthly or weekly sums for her maintenance as the court may think reasonable: provided, that if the husband after- wards from any cause becomes unable to make such payments, it shall be lawful to discharge or modify the order, or temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again to revise the same order, wholly or in part. CONSTEUCriVE SEfiVICE. 1069 STATUTES RELATING TO CONSTRUCTIVE SERVICE. ALABAMA. Notice is served as in other chancery suits. ARIZONA. As in other civil cases. ARKANSAS. As in other chancery suits. COLORADO. (Session Laws 1894.) § 3. In every action for a divorce, personal service of a copy of the summons, to which shall be attached a copy of the complaint, shall be made upon the defendant, except as provided in section 4 hereof. If such service shall be made within the state of Colorado, then such de- fendant shall have thirty days thereafter within which to appear and plead to said complaint; if the defendant be not within the state of •Colorado, then personal service upon such defendant of a copy of the summons and complaint may be made by the sheriff of the county in which such defendant may be found, and the return of such sheriff, showing such personal service, shall be held to be a sufficient service to give the court jurisdiction in such case; and in case of such service out- side of the state of Colorado, such defendant shall have fifty days from the date of such service within which to appear and plead to such com- plaint; and in aU cases the time within which such appearance must be made shall be stated in the summons. § 4 In any case in which a party has committed any act which under the terms of this act would entitle the husband or wife to a divorce, and the party committing such act has left the state of Colorado, and the whereabouts of such person is unknown to the plaintiff, the plaint- iff may file an application to the court to make service upon such ab- sent party by publication; such application shall be made under oath, and shall state fully and in detail all of the knowledge of the plaintiff concerning the departure of such absent party, and shall state all facts within the knowledge of the applicant which might assist in ascertain- ing the address of such absent party. The court in which such appli- cation is filed, or the judge thereof in vacation, shall, whenever such 1070 DIVOKCE STATUTES. application shall be heard, carefully examine the plaintiflf and such other witnesses as may be produced, in order to determine what steps- shall be taken to notify such absent defendant, and may cause copies- of the summons to be sent by the clerk, together with letters of inquiry, to any and all places as the court may determine. And the court shall also, if satisfied of the good faith of the application, cause the summons to be published in the same manner and with like effect as is now pro- vided by law for the publication of summons in cases of attachment CONNECTICUT. (General Statutes 1888,) § 3804 On all such complaints, where the adverse party resides out of or is absent from this state, any judge or clerk of the supreme court of errors, or of the superior court, or any county commissioner, may, in vacation, make such order of notice to the adverse party as he may deem reasonable; and such notice having been given and duly proved to the court, it may hear such complaint if it finds that defendant has actually received notice that the complaint is pending; and if it shall not appear that the defendant has had such notice, the court shall order such notice to be given as it may deem reasonable, and continue the complaint until the order has been complied with. DELAWARE. (La-vrs 1893.) If service cannot be made of the summons, an alias summons shall issue to the next term, wl|ich the sheriff shall publish for (one) month in such newspapers, one or more, as he shall judge best for giving the de- fendant notice, and such proceedings shall then be had as are provided for in case of service of the summons, either with or without the de- fendant's appearance. DISTRICT OF COLUMBIA. If it shall appear by the affidavit of a disinterested witness that the defendant is a non-resident of the district, or has been absent therefrom for the space of six months, the court, after the return of the summons " not found," may authorize notice of the pendency of the petition to be given by publication in such manner as shall be directed, FLORIDA. § 1482. BiUs for divorce may be brought against defendants residing out of the state, and service shall be effected upon them as in other oases in chancery. CONSTKUCTIV-E SEKVICE. 1071 GEORGIA. § 1717. The action for divorce shall be by petition and process as in ordinary suits, filed and served as in other cases, unless the defendant ' be a non-resident of this state, when service shall be perfected as pre- scribed in causes of equity. IDAHO. No provision. ILLINOIS. § 6. The process, practice and proceedings under this act shall be the same as in other cases in chancery. INDIANA. § 1036. If it shall appear by the affidavit of a disinterested person that the defendant is not a resident of this state, the clerk shall give notice of the pendency of such petition by publication for three suc- cessive weeks in some weekly newspaper of general circulation pul> lished in such county, or, if there be no such paper, then in one published in tills state nearest to the county seat of such county: Provided, that the plaintiff shall, in case such notice is to be given by publication as aforesaid, before the same is given, file his or her affidavit with the clerk, stating therein the residence of the defendant, if such residence be known to the plaintiff; and if such residence be unknown to the plaintiff, such affidavit shall so state ; and in case such affidavit state the residence of the defendant, the clerk shall forward, by mail, to such defendant the number of the paper containing such notice, with the notice marked. IOWA. § 3833. Service may be made by publication (as in other a cept in an action for divorce, the defendant upon whom service by pub- lication is made, or his representatives, ruay, in like manner, ilpon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendi- tion, on such terms as may be just. . . . Proof of the service of the summons and of the complaint or aiotice, if any accompanying the same, must be as follows: 1. If served by the sheriff or other officer, his certificate thereof; or, 3. If by any other person, his affidavit thereof; or, 3. In case of publication, an affidavit made as provided in section 532 •of this code, and an affidavit of a deposit, of a copy of the summons .and complaint in the postoffioe, as required by law, if the same shall have been deposited; or, 4 The written admission of the defendant. In cases of service otherwise than by publication, the certificate, affi- davit or admission must state the time, place and manner of service. Sec. 4904. From the time of the service of the summons in a civil ac- tion, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal serv- ice of the summons upon him. INDEX. References are to sections. A MENSA, DIVORCE — nature and effect of, 1033. alimony awarded on, 903. form of decree, 764. A MENSA ET THORO — decree of, 1023. A VINCULO, DIVORCE fsee Decree op Divorce) - nature and effect of, 1020-1033. alimony awarded on, 900-943. form of decree, 763-765. ABANDONMENT (see Desertion) — distinction between, 53. ABATEMENT — by death, 729a. action revived as to property rights, 739a. appeal abates by death of one party, 739a. action to annul marriage abates, 739a. alimony awarded after death of husband, 729a. permanent alimony awarded out of estate, 739a. ABILITY — of husband as foundation for alimony, 912. in failure to support, 371-373. of wife to support herself, alimony, 913. ABSENCE (see Desertion)— excused by sickness, 73. imprisonment, 73. business, 73. insanity, 72. mere absence, no desertion, 65. presumption of death from, 584. excuses delay in bringing suit, 533, ABSENT AND NOT HEARD OF — as a cause for divorce, 385. 69 ' 1090 INDEX. References are to sections. ABSENT PERSON — when presumed dead, 584. ABUSE, OF MARITAL RIGHTS — excessive intercourse, 304. ABUSIVE LANGUAGE — not creating apprehension of cruelty, 263. as an indignity, 390. ABUSIVE TREATMENT — as cruelty, defined, 253. ACCESS — of parents, see Custody of Children, 978. of husband, birth without, 163. in action for divorce, non-acct'ss of husband may be sh'own, 163. ACCIDENTAL INJURY — not cruelty, 819, 343. ACCOMPLICE (see Witnesses). ACCUSATION — of crime as cruelty, 280. of adultery, 377, 378. by wife, 309. of impotence, 379. denying paternity of child as cruelty, 377. ACQUIESCENCE — a form of connivance, 477. in separation, bars divorce for desertion, 90. in void decree, estoppel, 556. ACTION — abatement and revival,- 739a. dismissal, 805. ' premature suit, amendment, 734. ACTIVE OR PASSIVE CONNIVANCE (see Connivance). ACTS OF CRUELTY — whether repeated, 268. ACTUAL NOTICE — of divorce suit required if possible, 834. personal service in another state, 834. effect of decree in rem with, 559. concealing notice, as fraud, 1053. ACTUAL RESIDENCE — distinguished from legal, 43. ACTUAL RESIDENT (see Domicile, 40-48). INDEX. 1091 I References are to sections. ADMINISTRATION — right to, on divorce, 103J. on divorce from bed and board, 1023. ADMINISTRATOR — a necessary party, when action revived, 729a. on vacating decree obtained by fraud, 1054 ADMISSIONS AND CONFESSIONS — divorce not granted on, 775. in proof of marriage, 777. vreight of, in suit for adultery, 191. declarations as res gestae, in desertion, 109. cruelty, 341. declarations of paramour, 781. ADULTEROUS DISPOSITION — proof of, 165. ADULTEROUS PARENT — right to custody on divorce, 976. ADULTERY (see, also, Ante-nuptial Incontinence, 380; Peegnancy Unknown at Mareiage, 379) — Definition mid Statutory Terms: adultery defined, 185. criminal intent, 136. insanity, 137. place, 128. the wife's offense compared with her husband's, 129. living in adultei-y, 130. separating and living in adultery, 131. adultery coupled with cruelty, 133. adultery coupled with desertion, 133. marriage after void divorce, 134. marriage pending appeal, 135. ■ marriage under mistake of fact, 136. same — negligence, 137. Circumstantial Evidence: in general, 138. adultery is not inferred from any particular circumstances, 139. sufficiency of circumstantial evidence, 140. ' the circumstances must be incompatible with innocence, 141. adultery need not be proved beyond a reasonable doubt, 143. whether it must be necessary conclusion from the evidence, 143. the elements of circumstantial evidence, 144 1092 INDEX. Eeferences are to sections. ADULTKRY (continued)— Opportunity: in general, 145. visiting house of ill-fame, 146. same — with other circumstances,- 147. same — facts may be explained, 148. locking doors, 149. wife visiting lodgings of paramour, 150. receiving visits in absence of husband, 151. living in same house, 152, occupying room with one bed, 153. occupying same bed, 154. when adultery is presumed from bigamy, 155. other facts incompatible with innocence : acting as husband and wife, 156. affection for particeps criminis, 157. concealment of intimacy, 158. gifts of paramour, 159. conduct after discovery, ICO. venereal disease, 161. birth without access of husband, 163. The Intent: in general, 163. familiarities of the suspected parties, 164, familiarities with other persons, 165. familiarities with relatives, 166. familiarities with physicians, pastors, etc., 167. familiarities prior and subsequent, 168. when too remote, 169, adulterous intent not presumed during sickness, 170 acts of adultery not alleged, 171. character of accused, 173. ante-nuptial unchastity, 173. character of particeps criminis, 174, letters of the accused parties, 175, intercepted letters, 176, Pleading and Practice: in general, 177, illustrations of vague and indefinite pleading, 178. rule of sufficiency, 179. time must be within reasonable limits, 180. name of particeps criminis, when not required, 181, indefinite pleading — bill of particulars, 183. same — waiver, 183. IXDEX. 1093 References are to sections. ADULTERY (continued) — Pleading and Practice (continued) : variance, time and place, 184. same — person, 185. proof by judicial record, 180. identity, 187. confrontation or presence of defendant at the trial, 188. obscene and indelicate evidence, 189. Witnesses and their Testimony: in general, 190. confessions, 191. denial by defendant, 193. effect of denial by accused and particeps criminis, 193. testimony of paramour, 194. necessity of corroboration, 193. paramour's confession of guilt, 196. declaration of paramour, not in presence of accused, 197. testimony of husband or wife of particeps criminis, 198. detectives, 199. prostitutes, 200. pimps, 201. ■when testimony of witness disregarded. 202. opinion of witness, 203. when should be a cause for divorce, 8. may cause such mental suffering as to amount to cruelty, 281. remarriage after divorce for, 588. parliamentary divorce for, 405. alimony without divorce for, 1003. accusation of wife as cruelty, 277. of husband as cruelty, 377, 309. must be without probable cause, 378. in suit for divorce as cruelty, 278. of, as justifying desertion, 94, 95, 96. connivance of, see Connivance, 475-489. conduct conducing to adultery, 480. collusion in committing adultery, 503. condonation by sexual intercourse, 455. delay after discovery of, see Delay. as recrimination, see RECEiraNATlON, 437-429. adultery a bar in all cases, 429. not a bar to nullity suit for impotence, 684. effect of, after divorce : as to custody of children, 976. as to permanent alimony, 907. as ground for terminating alimony, 907. 1094: INDEX. References are to sections. ADULTERY AND DESERTION — as a cause for divorce, 131. ADULTERY COUPLED WITH CRUELTY. 133. both cruelty aud adultery must be proved, 133. ADULTERY COUPLED WITH DESERTION, 133. desertion may be complete, 138. AFFECTION — loss of aa cruelty, 387. for lewd women, when cruelty, 887. AFFIDAVIT (see, also, Vekipication, 738) — , of defense on motion to set aside default, 775. of non-residence, 819. AFFINITY — defined, 710. whether impediment as consanguinity, 714. does not exist between blood relations of spouses, 710. ceases on death of one spouse without issue, 710. continues while issue living, 710. not created by sexual intercourse, 714 but by marriage, 714. as fixed by modern statutes, 715. AFFIRMING MARRIAGE (see Voidable Marriage) — voidable for fraud, 603. duress, 633. want of age, 733. disaffirming, 734. AGE — want of, as a ground for annulment, 731-735. of discretion, 731. of disaffirmance, 734. of consent, 731, 733. I materiality of, in impotence, 685. when a bar to nullity suit, 685. of parties, may be alleged, 733. young child awarded to mother, 976. of child, determines custody, 975, 976. disparity of age considered in cruelty, 317. in awarding alimony, 916. considered in determining probability of future cruelty, 317. considered in determining the effect of fraud, 615. misrepresentation of age as fraud, 614. minor not estopped by misrepresentation of age, 614. INDEX. 1095 References are to sections. AGREEMENTS — promoting divorce, are void, 507-509. to procure divorce, 505. ■ relating to alimony, as collusion, 509, 915. division of property, 964. custody of children, 975. vacating decree, as collusion, 508. dismissal of suit, as collusion, 507. as condonation, 466. suppression of evidence as collusion, 506. offending by, is collusion, 503. committing adultery by, 503. effect of decree obtained by collusion, 1055. AIDINa IN THE PROOF — as collusion, 504 ALABAMA — statutes relating to divorce, page 1035. domicile, page 1058. notice, page 1069. desertion as a crime in, 100. alimony without divorce, 1000. alimony after divorce, 986. ALIBI — proof of as defense in adultery, 187. ALIMONY, IN GENERAL (see, also, Temporary Alimony, 850-863; Permanent Alimony, 900-9] 8; Decree for Alimony, 930-948) — nature of permanent alimony, 900. definition of, 900, 932, 961. an incident of divorce suit, 1000. alimony without divorce, 1000-1003. alimony, divorce denied, 905. permanent, not granted before divorce, 986. not a debt, 987, 939. is exempt if not in gi'oss, 987. not subject to set-off, 937. not released by discharge in bankruptcy, 987. agreements relating to, when valid, 507, 881, 915. assignment of, contingent fee, 881. ALIMONY IN GROSS — in general, 931. does not terminate on death of either party, 983. or on marriage of either party, 988. not subject to revision, 933a, 934. 109,6 .INDEX. References are to sections. ALIMONY PENDENTE LITE (see Tempoeaht Alimony). ALIMONY, PERMANENT {see, also, Permanent Alimony) — application for, 747. generally in a petition for divorce, 947. may be joined with injunction and attachment, 747. form of application, 747. order for, 766, 767. ALIMONY, TEMPORARY (see, also, Temporary Alimony) — application for, 746. same, allegation of faculties, 746, 760. notice of, when required, 746. when made, 746. inherent power to grant, 851. granted on application to vacate decree, 851. make decree absolute, 851. modify decree absolute, 851. application for alimony without divorce, 851, 1003. appeal, 854, 863. demurrer, 854. not granted for past expenditures, 746, 855. after dismissal of wife's suit, 860. refused where marriage is admitted void, 852. a valid divorce is shown, 853. liusband insane, 854. I no cause for divorce is alleged, 854. wife's means sufficient, 855. wife guilty of a cause for divorce, 857. other defenses, 856a. terminates on verdict against wife, 860. dismissal, 860. iinal judgment, 860. enforced by refusing matters of favor but not matters of rights 861. contempt proceedings, 939. ALIMONY WITHOUT DIVORCE — in general, 1000. the question as affected by statute, 1001. when maintenance is granted, 1003. the procedure, 1003. form of petition for, 759. as a civil liability for desertion, 98. enforced by contempt proceedings, 939. terminates upon death or divorce, lOOi condonation, 1003. INDEX. 1097 References are to secticns. ALLEGATION (see Pleading, 730) — of marriage, 733. jurisdiction, 731. faculties, see Alimony, 746, 760. proof must conform to, 171, 338. ALLOWANCE TO WIFE (see Permanent Alimony; Division of Peoperty). AMENDMENT — in suits for divorce, 741. divorce suit to nullity, 737. suit for alimony to suit for divorce, 737. of prayer, 737. verification, 738^ ' answer, 743. decree, 748. decree during term, 748. indefinite pleading, bill of particulars, 183. bill of particulars not allowed under code, 183, 739. new causes added by, 740. premature suit ; amendment of petition, 734. ANCILLARY PROCEEDINGS (see Alimony, in General) — division of property, 960-986. custody of children, 975-985. injunction, 938. attachment, 736, 935, 938, lOOa garnishment, 938. contempt, 939. writ we exeat, 940. creditor's bill, 938. execution, 938. by supplemental bill, 740. ANOTHER ACTION PENDING, 554. as a bar to criminal proceedings for desertion, 99. to action for restitution of conjugal rights, 101. ANNUITY — right to recover after desertion, 95, note. ANNULMENT — of decree for fraud, in general, 1050-1057. ANNULMENT OF MARRIAGE — in general, 565. divorce and annulment distinguished, 566. 1098 INDEX. References are to sections. , ANNULMENT OF MARRIAGE (continued) — void and voidable, 567. void marriages, 568. voidable marriages, 569. defenses to nullity suit, 570. practice and procedure, 571. causes for, prior marriage, 575-591. fi-aud, eri-or and duress, 600-624. impotency, 675-705. insanitj"', 650-672. consanguinity and affinity, 710-715. miscegenation, 716-730. want of age, 721-735. whether suit abates on death of one party, 729a. temporary alimony, when allowed, 853. permanent alimony refused, 905a.' forms of petition for, 755, 756. decree, 705. effect of decree, 1033. ANSWER (see Pleadins, 743)— ■ must conform to equity practice, 743. forms of answers, 753. crdss-bill, 744, 745. form of cross-bill, 754. decree on cross-bill, 746. cannot be stricken for contempt, 861. conduct during suit may be pleaded in recrimination, 441. general denial not inconsistent with recrimination, 441. conspiracy to obtain alimony, 561. ANTE-NUPTIAL INCONTINENCE — as a cause for divorce, 380. ground for annulment, 604-610. pregnancy at marriage, 379. placing husband on guard, 607. as proof of adulterous disposition, 178. inference that, continued after marriage, 173. effect on amount of alimony, 965. ANTICIPATING DEFENSES — not required, 733. APPEAL — right of, must be derived from statute, 809. constitutional right in all cases, 809. INDEX. 1099 References are to sections, APPEAL (continued) — abuse of discretion, 809, 863. in requiring waiver of jury trial, 8D1. temporary alimony on appeal, 8o4, 863. restitution of alimony on reversal, 863. from decree for tempoi-ary alimony, 833. not a final order, 863, permanent alimony, 809. division of property, 809. attorney's fees, 879. imprisonment for contempt, 939. custody of children, 809, 984. alimony without divorce, 1003. decree in opposition to verdict, 801, 809. order vacating decree, 1057. what orders are final, 809, 863. discretionarj' orders, amendments, 741. supplemental pleadings, 740. submitting issue to jury, 801. right to open and close, 803. order for temporary alimony, 809. effect of death of party, 729a. marriage of party, 809. APPEARANCE — eflfect of, 36. does not confer jurisdiction over subject-matter, 36. jurisdictioii by, 36. on taking deposition, 36. in ex parte proceedings, 834. essential to temporary alimony, 850. APPREHENDED HARM — divorce for cruelty is for, 260. ARIZONA — statutes relating to divorce, page 1026. domicile, page 1053. notice, page 1069. discretionary divorce in, 388. ARKANSAS — statutes relating to divorce, page 1036. domicile, page 10,53. notice, page 1069, alimony after divorce, 936. without divorce, 1000. 1100 INDEX. Eeferenoes are to sections. ARREARS OF ALIMONY — when payable, 933, 942. not recoverable on foreign decree, 943. ARREST — efleect of as duress, 619, 630. to prevent departure from state,' 940. contempt proceedings, 939. vi'rit ne exeat, 940. ARSON — malicious charge of, as cruelty, 380. ARTICLES OF PEACE — husband liable for fees in, 876. ARTICLES OF SEPARATION — as a defense in general, 553. in cruelty, 553. in desertion, 83. suit for impotence, 686. in condonation, 466. as connivance, 483. in restitution of conjugal rights, 101. in criminal proceedings for desertion, 100. in application for alimony, 915. separate maintenance, 98. effect of absolute divorce, 1027. consent to separation presumed from, 67. ASSAULTS — as cruelty, 263. ASSIGNMENT OF ALIMONY — when void, 881. ASSIGNMENT FOR BENEFIT OF CREDITORS — divorced wife does not prorate with, 938. ATTACHMENT — in divorce suits, 736, 935, 938, 1003. homestead subject to, 938. wages subject to, 938. for contempt, see Contempt, 939. ATTEMPT — to poison, is cruelty, 366, 308. shoot, 266. kill, 266. commit adultery, may amount to cruelty, 281. malicious charge of attempt to poison is cruelty, 380. malicious charge of attempt to kill is cruelty, 280, INDEX. 1101 Eeferenoes are to sections. ATTORNEY — for state, 7. concealing truth from, as evidence of collusion, 510. ATTORNEY FEES — in general, 875-883. liability of husband for, 876. how obtained after dismissal, 877. number of counsel, 878. amount of, 879. the order for. 880. contingent fee, 881. attorney's Hen, 883. enforced by contempt proceedings, 939. awarded after dismissal, 805, 877. B. BAIL — compelling husband to give, 939. BANKRUPTCY — does not discharge alimony, 933. BARGAINING (see Ageeements). BARRENNESS — not impotence, 675. BASTARDS (see Illegitimate Children). BASTARDY PROCEEDINGS — efleect of as duress, 619, 620. BAWDY HOUSE — visiting, as evidence of adultery, 146, 147, 148. BEATING — as cruelty, 266. BED — occupying same as evidence of adultery, 154. in room with one bed, 153. occupying different, not desertion, 70. BED AND BOARD (see DECREES OF Divoece), BELIEF OF GUILT - right to permit adultery, connivance, 485. as an element of condonation, 453. that prior marriage is dissolved by death or divorce, 584, 585. 1102 INDEX. References are to sections, BELIEF THAT PARTY IS DEAD — no defense to adultery in void second maiu'iage, 131. BESTIALITY (see Sodomy, 303). BIGAMY (.see Peior Marriage Undissolved, 575-591) — as a cause for divorce, 589. not a crime if marriage after absence of seven years unheard of, 575. after ex parte divorce in another state, 586. , adultery presumed from, 15.'). malicious charge of, as cruelty, 380. BILL (see Pleading, 730-743). BILL OF PARTICULARS — in divorce suits, see Pleading, 739. to cure indefinite allegation of adultery, 183. BIRTH OF CHILD — as proof of adultery, 163. as disproof of impotency of wife, 694. BODILY HARM — as a test of cruelty, 353, 263. BONA FIDE INHABITANT (see Domicile). BOND — I whether wife must give, on injunction, 736. security for alimony, 941. on appeal from order for alimony, 863. BOND OF MATRIMONY, DIVORCE FROM (see Decrf.es op Divorce). BUGGERY (see Sodomy, 393). BUTLER V. BUTLER — opinion cited in text, 370. c. CALIFORNIA — statutes relating to domicile, page 1053. ' code of, relating to marriage and divorce, page 1077. void second marriage is voidable by statute, 578. injury to health not a test of cruelty, 365, 375. alimony where divorce is denied, 906. alimony without divorce, 1000, 1001. CANONICAL IMPEDIMENTS TO MARRIAGE, 565. CAUSES FOR DIVORCE — arising after suit, 740. tnust exist at commencement of suit, 734. joinder of, 785. INDEX. 1103 Eeferenoes are to sections. CAUSES FOR DIVORCE (continued) — the cause involving the least moral turpitude is chosen, 50. measured by effect, 8, 250. other causes may amount to cruelty, 281. should be of equal gravity, 8, 383. post-nuptial insanity is not, 653. all misconduct of equal gravity should be, 388. reasons for divorce for cruelty, 251. discretionary causes, 388. for legislative divorce, 405. pregnancy unknown at marriage, 379. ante-nuptial incontinence, 380. voluntary separation, 381. gross neglect of duty, 383. divorce obtained in another state, 883. inability to live together in peace and happiness, 384. absent and not heard of, 385. violent and ungovernable temper, 387. divorce at discretion of the court, 388. conduct rendering cohabitation unsafe and improper, 389. indignities rendering condition intolerable, 300. uniting with Shakers, 391. public defamation, 393. sodomy or buggery, 393. CERTAINTY — as time, place and person, in adulteri', 179-185. CERTIORARI — from contempt proceedings, 939. CHAMPERTY — assignment of alimony, 881. CHANGE OF RESIDENCE — effect on pending suit, 30." CHANGE OF VENUE — provision of code applicable to divorce, 804. CHARACTER — evidence of in divorce suit, 173. vchether evidence of adulterous disposition admissible, 165. why not admissible a.s in criminal suit, 10. of accused party, may be shown, 172. to prove disposition, 173. oiparticeps criminis, 174. misrepi'esentation of, not a fraud, 612. cHaracter and social condition as affected by cruelty, 316. 1104 INDEX. Eeferenoes are to sections. CHARGE TO JUEY, 801. CHASTITY (see Ante-nuptial Incontinence) — want of, not ground for-annulment, 604. misrepresentation of, as fraud, 604, accusation against, as cruelty, 377, 378. CHATTEL MORTGAGE — to defeat alimony, void, 988. CHILD (see Custody op Children, 975-985) — ill treatment of, as cruelty to parent, 300. cruelty of, Imputed to father, 301. permitting lewd conduct of child, is cruelty, 283, 300. husband may expel child from house, 301. as a witness, 785. fear of having, no excuse for desertion, 97. turning step-child away, no excuse for desertion, 299, 301. cost of supporting estimated in fixing alimony, 914. conveyance to, by both parties, not subject to alimony, 938. property not awarded to children, 963. status of, after annulment, 568. of void marriage, illegitimate, 575, 590, 591. denying paternity of, as cruelty, 377. born before marriage, fraud concerning paternity, 609. CHILD-BIRTH — cruelty to wife at, 318. CHOKING — is cruelty, 366. CHRISTIAN SCIENCE — practice of, as cruelty, 285. CHURCH — refusal to allow wife to attend, 394. CIRCUMSTANTIAL EVIDENCE — of adultery, 138-144. effect of denial by defendant, 192. and paramour, 193. when sufficient, 140. is sufficient corroboration of party, 780. CITATION (see Process and Constructive Service, 815-825). CITIZEN (see Domicile, 40-48). CIVIL ACTION (see Action). CIVIL CONTRACT — marriage as a, 2, S. INDEX. 1105 References are to sections. CIVIL LAW — \oid raan-iage, effect of, 591. CIVIL LIABILITY — for desertion, 98. See, also, Alimony Without Divorce. CIVIL RIGHTS BILL — marriage law not violating, 719. CIVIL SUIT — whether divorce is, 6. CLEAN HANDS — the doctrine of, 435, 437. CODE (see Statutes). COHABITATION — distinguished from sexual intercourse, 53. ceasing to, is not desertion, 70. as evidence of adulter}-, 153. condonation, 467, 4(38, 469. second marriage, 580. triennial cohabitation, 696. renewing, effect on desertion, 81. affirmance of marriage by, 569, 633, 673, 734. duty of, in general, 63, 93, 337. ceases after one party is guilty of.a cause for divorce, 63, 95 improper during suit, 63, 93, 337. but not a bar to suit for impotence, 683. refusing to commence, is desertion, 63. desertion while cohabiting in same house, 70. COHABITATION AND REPUTE — presumed to continue, 837. as evidence of marriage, 777. COLLATERAL ATTACK (see Fraud in Obtaining Decree) — of decree obtained by fraud, 560, 1051. fraud as available as in direct attack, 560. COLLUSION — defined, 500. bars divorce for any cause, 501. bars a meritorious cause for divorce, 503. offending by agreement, 503. aiding in the proofs, 504. the plaintiff cannot procure a divorce for defendant, 505. suppression of evidence, 506. agreements to dismiss suit, 507. agreement not to disturb a decree, 508. agreements concerning alimony and division of property, 509. 70 1106 INDEX. References are to sections. COLLUSION (continued) — pleading and evidence, 510. distinction between connivance and collusion, 500. failure to interpose defense is not, 506. effect of divorce obtained by, 1055. COLORADO — statutes relating to divorce, page 1027. domicile, page 1054. notice, page 1069. attorney appointed in ex parte divorce suit, 7. divorce in, when void, 19. alimony without divorce, 1000. attachment in ex parte proceedings, 935. COMITY (see Foreign Decrees) — law where offense was committed not enforced, 83. effect of foreign divorce, 38. divorce in other states, 23, 39, 30. COMMITMENT (see Contempt). COMMON LAW — marriage without celebration, 777. ecclesiastical law is part of, 10. no absolute divorce at, 10. right to whip wife denied, 293. COMMON PEOSTITUTE (see Prostitute). COMMUNITY PROPERTY — on divorce, 965. COMMUTATION OF PUNISHMENT — effect of, 363. COMPENSATION FOR INJURIES — permanent alimony as, 910. COMPLAINANT (see Plaintiff). COMPLAINT (see Pleading, 730-748). CONCEALMENT — of pregnancy, a ground for annulment, 606, 607. of address, to prevent reconciliation, bars divorce for desertion, 90. CONCLUSIVENESS OF DECREE (see Res Judicata). CONCURRENT JURISDICTION — of courts and legislature, 403. INDEX. 1107 Keterences are to sections. CONDONATION — in general, 450. thfe condonation must be voluntary, 451. the reconciliation must be complete, 453. there must be knowledge of the offense, 453. what offenses may be condoned, 454. condonation of cruelty, 455. revival of condoned offenses, 456. what revives condoned cruelty, 457. x'epetition of the offense, 458. cruelty revives condoned adultery, 459. any cause for divorce revives a condoned offense, 4G0. a cause for separation will revive a cause for divorce, 461. pleading, 463. evidence, 463. proof of condonation, 404. express condonation, 465. when condonation is inferred from agreements and settlements, 466. when inferred from the conduct of the parties, 467. when inferred from the conduct of the wife, 468. not inferred where party had no evidence, 453. not a license to repeat condoned offense, 450. too great facility of, is connivance, 479. a party may refuse to condone a cause for divorce, 75. not a defense in nullity proceedings, 570. answer alleging, 758. CONDUCT CONDUCING TO ADULTERY (see Conmvance, 475-489). CONDUCT ENDANGERING LIFE — as cruelty, 363. CONDUCT PROVOKED BY PLAINTIFF, 336-331. CONDUCT RENDERING CONDITION INTOLERABLE, 264, 390. CONDUCT RENDERING COHABITATION UNSAFE, 263, 389. CONDUCT SUBVERSIVE OF MARRIAGE RELATION, 265. CONFESSIONS AND ADMISSIONS, 781. admission of marriage not sufficient proof of, 777. divorce not granted on, 779. when not privileged communications, 783. demurrer is not, 743. default is not, 775. obtained by fraud, inadmissible, 781. corroboration of testimony of party, 779, 780. CONFIDENTIAL COMMUNICATIONS (see Peivileged CommunicAp TIONS). 1108 INDEX. References are to sections. CONFINEMENT — cruelty during. 318. CONFLICT OF LAWS (see Jurisdiction and Conflict op Laws). CONFRONTATION — or order for presence of defendant at trial, 188. CONJUGAL RIGHTS (see Restitution of) — mutual rights and duties, see Husband ; Wife. questions involving mutual rights in cruelty, 291-304. CONNECTICUT — statute relating to divorce, page 1028. domicile, page 1054 notice, page 1070. discretionary divorce in, 383. legislative divorce in, 400. desertion as a crime in, 100. CONNIVANCE — connivance defined, 475. when connivance is a defense, 476. connivance must be with corrupt intent, 477. delay is a form of connivance, 478. too great facility of condonation is connivance, 479. desertion as " conduct conducing to adultery," 480. cruelty and desertion as connivance, 481. imprudence, bad judgment, etc., are not connivance, 483. articles of separation as evidence of connivance, 483. the husband cannot entrap the wife, 484. the husband may watch and permit the wife's adultery if he believes her guilty, 485. one connivance a bar to all subsequent offenses, 480. connivance to subsequent adultery does not bar a divorce for prior adultery, 487. connivance disclosed by evidence,'though not alleged, 488. connivance must be clearly proven, 489. CONSANGUINITY AND AFFINITY — in general, 710. the Levitical degrees and the common law, 711. how the degrees are computed, 713. consanguinity, 713. affinity, 714. modern statutes, 715. CONSENT (see, also. Connivance) — desertion must be without, 70. does not confer jurisdiction over subject-matter, 33. INDEX. 1109 References are to sectlona. CONSENT OF PARENTS — not required at common law, 783. marriage not void for want of, 723. CONSPIRACY (see Collusion) — marriage brought about by, 611. to prove adultery by false testimony is cruelty, 377. to obtain alimony, as a defense, 561. CONSTITUTIONAL LAW — right to trial by jury, 801. right of appeal, 809. retrospective and ex post facto laws, 4, 5. prohibitions against legislative divorce, 401. of marriage of guilty party, valid, 588. implied prohibitions, 402. concurrent power of legislature to grant divorce, 403. civil rights bill, intermarriage of white and black, 719. when legislative divorce is void as special legislation, 408. as exercise of judicial power, 409. as impairing dontracts, 410. contempt, not imprisonment for debt, 939. is due process of law, 939. law making desertion a crime is constitutional, 100. CONSTRUCTIVE NOTICE (see Summons and Constructive Service) — in general, 815-825. statutes relating to, pages 1069-1076. CONSULTING CHILD — in controversy for its custody, 975. CONSUMMATION OF MARRIAGE — fraud vitiating ordinary contract sufflcieut before, 603, 613. prevents annulment for fraud, 602, 603. duress, 623. CONTEMPT — refusal to pay temporary alimony, 861. permanent alimony, 939. attorney's fees, 880, alimony vrithout divorce, 1003. inherent power not afiFected by other remedies, 880, 939. denial of matters of right, 861. refusal to proceed with trial, 801. modify decree, 861. file decree, 861. change of venue, 861. dismissal of suit, 801. striking out answer, 881. dismissal of appeal, 861. 1110 INDEX. Eeferences are to sections. CONTINUANCE — granted when defense disclosed not in issue, 4C3. when amendment necessary, 179. presumption of continuance, 80, 104, 581. costs of, allowed, 807. CONTINUING OFFENSE — when barred by delay, 1003. CONTINUITY OF DESERTION — how destroyed, 80-86. not destroyed by suit for divorce on other grounds, 93. not destroyed by removal during term of desertion, 69, 80. of habitual drunkenness, 356. CONTRACTS (see Obligation of Contracts) — marriage not a contract, 3. divorce suit as an action on contract, ,4. a cause for divorce similar to breach of, 4. as to alimony, when enforced, 509, 915. division of property, 964. custody of child, 975. to procure or promote divorce, are void, 507-509. CONVERSATION — of parties, when privileged, 782. CONVICT — domicile of, 41. CONVICTION FOR CRIME — as a cause for divorce, 360-366. COPULA — a test for impotence, 675. CORROBORATION — of witnesses, 779. what sufiScient, 780. of paramour's evidence, 195, 779. COSTS — in divorce suits, 807. suit money and attorney's fees, 875-883. not enforced by contempt, 939. as counsel fees, 875. COUNSEL (see Attorneys) — fees in general, 875-883. ■» number of, for wife, 878. COUNTER-CHARGE (see Recrimination). INDEX. 1111 References are to sections. COUNTER-CLAIM — a cross-suit is a, 745. COUNTY — in which suit must be brought, 31. whether actual or legal residence in, required, 43. allegation of domicile in, 731. suit in another county, fraud, 1052. change of venue, 804 COUNTY ATTORNEY — duty of, in ex parte divorce suit, 7. COURT (see Jurisdiction) — representing interests of state, 8. . cause never concluded against judge, 443, 463. discretionary orders, see Appeal. whether trial by jury, 801. open court, 800, COURTS — what, have jurisdiction of divorce, 19. COURTSHIP — allegation of, not necessary, 733. COUSINS — marriage of, prohibited, 713. COUSINS GERMAN — permitted to intermarry, 713. COVERTURE — wife may sue for divorce, 728. CREDITOR — right to intervene, 737. priority over wife's claim for alimony, 938. the wife as a, of husband, on divorce, 938. CREDITOR'S BILL — for .alimony, 736. CRIME — against nature, see Sodomy, 393. CRIME AND IMPRISONMENT — in general, 360. when this cause is complete, 361. pai'don and commutation of sentence, 363. whether the conviction and imprisonment must be in the state, 363. the sentence must be for the i-equired time, 364. marriage to convict pending appeal, 305. sentence foi- life as a divorce, 366. comnlission of crime as cruelty, 883. 1112 INBEX. References are to sections. CRIMINAL OR CIVIL — whether divorce suit is, 6. CRIMINAL PROCEEDINGS — against husband for desertion, 99, 100. CROSS-PETITION (see Pleading, 744). CRUEL TREATMENT — defined, 357. CRUEL AND ABUSIVE TREATMENT, 258. CRUEL AND INHUMAN TREATMENT, 359. CRUELTY — Definition and Statutory Terms: in general, 250. reason for divorce for cruelty, 251. cruelty under ecclesiastical law, 252. later definitions, 253. scevitia, 254. endangering life, 255. injury to limb, 256. cruel treatment, 257. cruel and abusive treatment, 258. cruel and inhuman treatment, 259. statutory terms and interpretations, 280. violence inferred from violence in the past, 261. violence inferred from any conduct, 263. bodily harm inferred from any cond.uct tending to impair the health, 363. conduct rendering the condition intolerable, 361 conduct subversive of the marriage relation whether impairing the health or not, 265. Violence and Direct Injuries: personal violence sufficient if creating apprehension, 366. the violence need not be habitual or persistent, 367. one act of violence may be sufBcient, 268. cruelty without personal violence, 269. reasons for same, 270. threats of violence, 271. communicating venereal disease, 373. inexcusable neglect during sickness, 373. Conduct Producing Mental Suffering: the mental suffering must impair the health, 374. evidence of mental suffering, 375. reasons for the physical test of mental suffering, 27b. false and malicious charge of adultery, 277. INDEX. 1113 References are to sections. CRUELTY (continued) — Conduct Producing Mental Suffering (continued;: charge of adultery in proceeding for divorce, 278. malicious charge of impoteuoe, 379. malicious charge of crime — malicious prosecution, 380. other causes for divorce may be cruelty, 381. commission of crime, 383. immoral conduct, 283. vile, abusive and profane language, 284. religious opinions, 285. unhappiness, 286. want of affection — dislike, 287. refusing to speak, 388. inability to live together, 389. presumptions arising from the wife's departure, 200. Questions Involving Mutual Rights and Duties: in general, 391. value of ancient authorities, 293. moderate correction, 393. husband's right of reasonable restraint, 294. his right to imprison, 395. management of household, 396. compelling the wife to overwork, 397. systematic tyranny, 398. expelling wife from home, 299. custody and punishment of children, 300. responsibility of husband for cruelty of children, 301. conformity to habits and tastes, 303. wife's associates, 303. exercise of marital rights, 304 Cruelty by the Wife: distinction, 305. violence of wife, 306. conduct endangering husband's health, 307. threats and attempts to poison husband, 808. wife's accusation of adultery, 309. wife's gross neglect or violation of duties, 310. ill conduct of wife not amounting to cruelty, 311. Evidence of Character and Intent: probable conduct in the future is the point to be determined, 313. subsequent conduct, 313. religious eccentricities, 314. divorce for cruelty is for safety and not for punishment, 315. character and social condition, 816. 1114 INDEX. References are to sections. CRUELTY (contiDued) — Evidence of Character and Intent (continued) : age of parties and duration of marriage, 317. physical condition of plaintiff, 318. cruelty must be wilful, 319. insanity, 320. insane delusions, eccentricities, 821. drunkenness, 322. delirium tremens, 323. delirium from morphine habit, 324 attacks of epilepsy, 325. Conduct Provoked by Plaintiff: in genera], 326. conduct disproportionate to provocation, 327. contra — provocation not considered, 338. retaliation by plaintiS, 329. mutual contests, fighting, 380. wordy quarrels and foolish disputes, 831. Pleading: allegation of cruelty, 332. general allegation is insufficient, 338. tlie mental and physical effect must be stated, 834 time and place, 335. alleging a course of ill conduct, 336, separation of the parties, 337. Evidence: pleading and proof, 338. record in criminal case, 339. confessions and testimony of the parties, 840. declarations, when res gestce, 341. marks of violence, 342. otlier causes foi- divorce may amount to, 281. habitual diunkenness may amount to, 281. desertion, 281. gross neglect of duty, 281. adultery, 281. a remedy to prevent apprehended evil, 260. conduct creating apprehension of cruelty : violence, inferred from violence, 261. ' violence, inferred from any conduct, 262. attempt to kill, 266. poison, 266. kicking, 266. choking, 266. pulling hair, 266. INDEX. 1115 References are to sections. CRUELTY (continued) — conduct creating apprehension of cruelty (continued): spitting in face, 266. whipping wife, 366. threats, 268, 670, 671. conduct forcing wife to unaccustomed labor, 378. should be a cause for divorce, 9. a cause for alimony without divorce, 1003. justifies separation, 64. as recrimination, 430, 431, 433, cruelty bars divorce for adultery, 436. desertion, 437. cruelty, 440. adultery bai-s divorce for any cause, 439. desertion Ipars divorce for cruelty, 438. condonation of cruelty, 455. cruelty an element in neglect to provide, 374. causing desertion, 64. form of allegation of, 753. CULTURE AND DISPOSITION OF PARTIES — considered in cruelty, 377. CURABLE — physical incapacity must be incurable, 680. CURTESY — efifect of desertiofl, 95, note. decree of divorce should extinguish or reserve, 748. extinguished by absolute divorce. 1030. but not by decree of separation, 1033. CUSTODY AND SUPPORT OF CHILDREN — in general, 975. the relative claims of the parents, 976. custody during suit for divorce, 977. access to children, 978. custody where a divorce is denied, 979. effect of order of custody rendered in another state, 91 support of children after divorce, 981. support where decree is silent as to custody, 983. support where custody awarded to wife, 983. the order for custody and support, 9S4. when modified, 983. petition for maintenance of, after divorce, 757. property cannot be awarded to children, 963. or to wife in trust for them, 963. form of decree awarding, 767. 1116 INDEX. Eeferenees are to seetiona D. DAMAGES — alimony as, 910. recovery of, by woman, void marriage, 1033. action against paramour, 454. effect of condonation, 454. DEAF AND DUMB — competent to marry, 6C3. DEATH — presumption of, 584. abates divoi'ce suit, 739a. suit for alimony, 72f)a, 1003. application for alimony, 739a. effect on alimony, 729a. permanent allowance, 933. appeal, 729a. attachment, 933. marriage believing other party dead, 584. prevents annulment for consanguinity, 710. does not prevent vacation of fraudulent decree, 1054. custody of child after, 976. DEBAUCHING SERVANT — as cruelty, 381. DEBT — alimony not a debt, 937, 939. alimony exempt from set-off, 937. contempt proceedings not imprisonment for debt, 939. action of, on decree of alimony, 941, 943. DECEASED HUSBAND'S BROTHER, 714 DECEASED WIFE'S SISTER — marriage of. 714. DECEASED WIFE'S SISTER'S DAUGHTER — marriage of, 714. DECEASED WIFE'S MOTHER'S SISTER, 714. DECEIT (see Fraud). DECLARATIONS OF PARTIES (see Admissions) — when admissible as res gestae, 109, 341. DECREES OP DIVORCE (see, also, Foeeign Decrees and Decrees OP Another State) — in general. 1020. decree nisi, 1021. INDEX. 1117 References are to sections. DECREES OF DIVORCE (continued) — dirorce from bed and board, 1033. decree of nullity, 1023. divorce from the bonds of matrimony — in general, 1024. after divorce tenants by the entirety become tenants in common, 1025. dower, 1026. marriage settlements and articles of separation, 1037. the wife's interest in tlie policy of insurance, 1038. name of wife after divorce, 1029. curtesy and husband's interest in the wife's property after divorce, 1030. homestead, 1031. federal homestead, 1033. effect of decree obtained in anotlier state on constructive service, 1083. forms of, 763-765. necessarj' recitals in decree, 748. when findings not required. 748. conformity to prayer, 737. void for want of allegation of domicile, 781. proper allegations, 748, 918. summons or valid notice, 818. not void for failure to verify petition, 738, DECREE OF DIVORCE, EFFECT OF — as decree in rem. 28, 29, 33. effect in other states, 30. as proof of valid marriage, 777. presumption that divorce was ab.solute, 748. wife obtained divorce if awarded alimony, 748. from bed and board, act changing, to decree nisi, not retrospective, 5. nature and effect of, 1023. terminates on reconciliation, 1032. petition of both parties, 1033. distinguished from bed and board, 901, 903. permanent alimony on, 902. form of decree a mensa, 764. marriage after, void, 583, 1033. and party guilty of adultery, 184. wife may acquire separate domicile afterward, 46. Annulling Decree for Fraud: in general, 1050-1057. false or insufficient evidence, 1051. fraud in concealing proceedings and preventing defense, 1053. ■ whether decree vacated after one party has married, 1053. the death of one of the divorced parties ia not a bar, 1054. 1118 INDEX. References are to sections. DECREE OF DIVORCE, EFFECT OF (continued) — Annulling Decree for Fraud (continued): when parties are bound by a decree obtained by collusion, 1053. delay and estoppel, 1050. procedure in vacating decree obtained by fraud, 1057. default, vacating personal service, 775. form of, constructive service; 763. extra-territorial effect of, denied, 30. minutes of judge, not a decree, 579. operative when rendered, 579. does not relate back, 579. effect of legislative divorce, 411. decree for alimony, see Alimojiy. DECREE NISI — in general, 1031, marriage, before decree made absolute, when void, 583. , , is adultery, 134. temporary alimony on, 851. act changing existing decrees of separation to, valid, 5. DEED OF SEPARATION (see Articles of Separation). DEFAMATION (see Public Defamation). DEFAULT — in general, 775. proof of constructive service, 817. in divorce cases, 775. when vacated, 775. constructive service, 835. form of decree, 763. DEFENDANT (see Parties^ — right to file cross-bill, 744. jurisdiction founded on domicile of, 47. may obtain affirmative relief, 43. although non-resident, 48. effect of denial of, in adultery, 192. DEFENSES (see, also, Connivance, 475-489; Collusion, 500-510; Re- crimination, 435-443; Condonation, 450-468; Delay, 515-534; Insincerity, 535-527) — in nullity proceedings, 570. condonation is not, 570. recrimination is not, 570. delay and estoppel, may be,. 570. to application for temporary alimony, 856aj other defenses — in general, 550. INDEX. 1119 References are to sections. DEFENSES (continued) — Toid marriage as a defense, 551. lack of jurisdiction, 553. articles of separation as a defense, 553. anotlier action pending, 554. res adjudicafa, 555. estoppel, 556. estoppel of decree obtained by fraud, 557. extent of estoppel of decree against non-resident, 558. estoppel by decree obtained in another state without actual notice, 559. estoppel by decree obtained in another state by fraud, 560. conspiracy to obtain alimony and propsTty, 561. misconduct of plaintiff not amounting to a cause for divorce, 502. when inconsistent, 743. evidence of temperance as a defense, 855. suppression of defense as collusion, 506. DEFINITION (see Words and Phrases). DEGREE OF CRUELTY, 269, 270. DELAWARE — statutes I'elating to divorce, page 1028. notice, page 1070. DELAY — in general, 515. presumption that oflfense is condoned, 516. statute of limitations, 517. explanations for delay — in general, 51S. waiting for reconciliation, 519. lack of funds, 520. lack of evidence, 521. absence, 522. recent cause for action, 523. pleading, 524. no defense to suit for alimony, 100". as defense in nullity suit, 688. in relating circumstances, 203. prevents vacation of decree for fraud, 587, 1056. to assert rights after void divorce, 586. as a form of connivance, 478. DELIRIUM FROM MORPHINE HABIT — as cruelty, 334. DELIRIUM TREMENS — in cruelty, 833, 1120 INDEX References are to sections. DELUSION — when insanity preventing marriage, 660. DEMURRER (see Pleading, 743) — temporary alimony allowed on, 854. sufficiency of marriage, tested by, 732. DEPOSITIONS — in suits for divorce, 776. DESERTER — one who causes separation, 65. not always the one who leaves home, 65. DESERTION — Definition and Statutory Terms: in general, 50. desertion defined, 51. abandonment, 53. cohabitation, 53, desertion not an abnegation of all duties, 54. desertion as a statutory cause for divorce, 55. wilful desertion, 56. obstinate desertion, 57. malicious desertion, 58. utter desertion, 59. without consent of the party deserted, 60. other statutory terms, 61. What Constitutes Desertion: refusing to renew cohabitntion, 62. refusing to commence cohabitation, 68. causing a separation is desertion, 64. non-cohabitation is not desertion, 65. when non-support is desertion, 66. a separation by mutual consent is not desertion, 67. refusal to emigrate or to follow the husband, 68. immaterial in what state the desertion occurred, G9. desertion while living in the same house, 70. refusal of sexual intercourse, 71. involuntary absence, 73. Offer to Return: in general, 73. the offer must be made with a bona fide intention to bring about a reconciliation, 74. the offer must be made within the statutory period, 75. the cause for the separation must be removed, 76. improper conditions must be omitted, 77, request to return, when necessary, 78. undisclosed unwillingness to receive, 79- INDEX. 1121 References are to sections. DESERTION (continued) — What Breaks the Continuity of Desertion: in general, 80. renewing cohabitation, 81. articles of separation, 83. continuing support, 83. division of property, 84. ofifer to return, 85. attempting to return, 86. When Plaintiff is Precluded by His Oum Misconduct- in general, 87. separation provolied by plaintiff, 88. whether the provocation must be a cause for divorce, 89. acquiescence, 90. consent to the separation, 91. What Justifies a Separation: separation by decree, 93. separation during suit for divorce, 93. a cause for divorce from bed and board, 94 what justifies a separation by a party seeliing divorce, 95. what misconduct of plaintiff justifies the defendant, 96. misconduct not justifying a separation, 97. Remedies for Desertion Other than Divorce: civil liability for desertion, 98. liability of minor husband to support his wife, 99. desertion as a crime, 100. restitution of conjugal rights, 101. Evidence: in general, 103. presumption of consent, 103. presumption of continuity. 104. justification for the separation not presumed, 105. prima facie case — separation against will of complainant, 106. the general conduct of the parties is admissible, 107. the intent to desert, 108. when declarations are admissible as res gestae, 109. record of suit for maintenance, 110. Pleading: in general. 111. the allegation should be in statutory terms, 113. language equivalent, 113. necessary allegations, 114. degerted party may change residence, 80. bars gross neglect of duty, 383. 71 1122 INDES. Eeferences are to sections. DESERTION (continued) — may amount to cruelty, 381. but is not an indignity, 390. may be condoned, 454. necessity of, as a cause for divorce, 9. alimony without divorce for, 1003. as affecting right to custody of children, 976. dower, 95. curtesy, 95. wife's annuity, 95. wife's advances to husband, 95. as connivance, 480, 481. period of, not complete, premature suit, 734. form of allegation of, 751. DESERTION AND ADULTERY — as a cause for divorce, 133. DESERTION AND LIVING IN ADULTERY — as a cause for divorce, 131. DESTRUCTION OF PROPERTY — as cruelty, 311. DETECTIVES — as witnesses, 199. weight of testimony of, 199. may be disregarded, 199. employment of, to procure evidence, 199. offering reward to witness, 199. impeachment of, 199. connivance of, imputed to employer, 484 DEUTERONOMY — causes for divorce, 380. DICTUM — whether a point was, 89, 353, 393, 390. DISCRETION OF COURT — as to cause for divorce, 388.' as to divorce for insanity, 651. as to reasonable cause for separation, 95. as to condoned offense as recrimination, 434. amendments, 740. supplemental pleadings, 741. in division of property, 965. in fixing amount of alimony, 809, 862* attorney's fees, 879. in selecting custodian for children, 975. INDEX. , 1123 » Eeferences are to sections. DISEASE (see Venereal Disease) — cruelty by communicating venereal disease, 273. DISLIKE — not cruelty, 287. DISMISSAL OF SUIT — on failure to prove marriage, 777, premature suits, 734. lack of jurisdictional allegation, 731. lack of verification, 738. failure to pay temporary alimony, 861. does not dismiss cross-bill, 745. attorney's fee may be allowed after, 805. alimony after, 805. the right to dismiss, 805. agreement to, when collusion, 507. when condonation, 466. of suit, a bar, 555. unless a dismissal without prejudice, So"). of premature suit, not a bar, 555. DISSOLUTION — as distinguished from separation, 961. DISSOLUTION OF MARRIAGE (see Effect of Decrees of Divorce). DISTRICT OF COLUMBIA — statutes relating to divorce, page 1039. notice, page 1070. alimony without divorce, 1000, 1003. DIVESTING TITLE — on division of property, 963. DIVISION AND RESTORATION OF PROPERTY — in general, 960. whether the property allotted is alimony, 961. division of property by divesting title, 963. division of property by other means, 963. enforcing agreement to convey title, 964 how the property is divided, 965. practice in the division of property, 966. consent to separation not inferred from, 67, 84 in suit for alimony without divorce, 1003. DIVORCE (see Causes for) — the three kinds compared, 961. as an action in tort, 5. 1124 INDEX. Eeferences are to sections. DIVORCE (continued) — not a punishment, 4, 271, 315. but a separation to prevent injury, 271, 315. an extraordinary remedy for evils which cannot be otherwise avoided, 251. physical injury as a cause for divorce, 251, 261, 362. conduct subversive of marriage relation, 265. rendering condition intolerable, 264. inflicting mental suffering, 265. endarlgering life and limb, 255, 256. tending to injure health, 263. inability to live together, 289. distinguished from annulment, 566. separation by ecclesiastical courts, 961. legislative divorce, 400-411. DIVORCE ACT, ENGLISH — nature of, 3. see Statutes, pages 1065-1068. DIVORCE AT DISCRETION OF COURT — in full, 388. DIVORCE OBTAINED IN ANOTHER STATE — as a cause for divorce, 383. effect of, see Foreign Divorce. DIVORCE STATUTES (see Statutes) — see pages 1025-1086. Causes for Divorce, see — Alabama, page 1025. Arizona, page 1026. Arkansas, page 1026. California, page 1077. Colorado, page 1037. Connecticut, page 1028. Delaware, page 1028. District of Columbia, page 1029. Florida, page 1029. Georgia, page 1030. Idaho, pages 1030, 1078. Illinois, page 1030. Indiana, page 1031. Indian Territory, page 1033. Iowa, page 1033. Kansas, page 1033. Kentucky, page 183. INDEX. 1125 References are to sections. DIVORCE STATUTES (continued) — Causes for Divorce (continued) — Louisiana, page 1034. Maine, page 1034. Maryland, page 1035. Massachusetts, page 1085. Michigan, page 1036. Minnesota, page 1087. Mississippi, page 1037. Missouri, page 1038. Montana, page 1088. Nebraska, page 1089. Nevada, page 1039. New Hampshire, page 1040. New Jersey, page 1041. New Mexico, page 1041. New York, page 1041. North Carolina, page 1043. North Dakota, pages 1048, 1078. Ohio, page 1043. Oklahoma, page 1043. Oregon, page 1044. Pennsylvania, page 1044. Rhode Island, page 1046. South Dakota, pages 1046, 1078. Tennessee, page 1046. Texas, page 1017. Utah, page 1048. Vermont, page 1048. Virginia, page 1048. Washington, page 1049. West Virginia, page 1050. Wisconsin, page 1050. Wyoming, page 1051. Statutes Belating to Domicile, pages 1053-1068. notice to non-resident, pages 1069-1076. English Divorce Act, pages 1064-1068. California Code, pages 1077-1086. DIVORCE SUIT — nature of, 4 as a proceeding in rem, 5. is a suit in equity, 6. a triangular proceeding, 7. is siii generis, 6. 1126 INDEX. Beferences are to sections. DIVORCE SUIT (continued) — the state a party in, 7. whether civil or criminal, 6. governed by local practice when adequate, 10. otherwise by ecclesiastical practice, 10. when governed by code of civil procedure, 803. what provisions of code applicable, see Statutes. when premature, 734. custody of children during, 977. charge of adultery or impotence in, as cruelty, 378, 379. DOMICILE — in general, 40. the statutes require a domicile as distinguished from mere resi- dence, 41. the residence must be actual, not merely intended, 43. evidence of residence should be free from suspicion, 43. motives immaterial if the party resolves to remain, 44 obtaining divorce with intent to return, 45. the wife may have a separate domicile after her husband's delictum, 46. domicile of wife who has deserted her husband without justifica- tion, 47. non-resident party as plaintiff, 48. of choice, 40. whether, must be adequate for every purpose, 41, of one party sufficient, 38. contra, 39. change of, during suit, 80. as to counties, 30. at time of offense, immaterial, 33. English law of, 33. allegation of, is jurisdictional, 731, as to county, 731. residence not complete, premature suit, 734. of parties, in suit for alimony without divorce, 1003. DOWER — effect of desertion, 95, note, decree of absolute divorce should bar, 748. alimony as a bar to dower, 909, 1036. alimony as compensation for dower, 909. barred by absolute divorce, 1036. but not by decree of separation, 1032. INDEX. 1137 References are to sections. DOWER (continued) — effect of decree in rem, 1033. allowed after voidable marriage, 569. but not after void marriage, 568. unless by statute where marriage in good faith, 578, allowed wlien second wife entitled to, if there is prior marriage un- dissolved, 578. DRIVING WIFE AWAY — as desertion, 64, 95. not desertion in Massachusetts, 64. DRUNKENNESS (see, also. Delirium Tremens) — in general, 350-359. nature of habit, 351, 352. must be from liquors, 353, must be continuous, 356. allegation of, 751. no adultery during, 136. effect of, in cruelty, 371. not an excuse for threats or cruelty, 371. may be condoned, 454. may amount to cruelty, 281, 322. misconduct during, not an indignity, 390. as mental incapacity at marriage, 664. DRUNKENNESS AND WASTING ESTATE, 357. DUE PROCESS OF LAW — contempt proceedings are, 939. DURESS — in general, 617-624 defined, 617. what duress is suflBcient, 618. unlawful imprisonment, 619. marriage under arrest, 630. threats of arrest and imprisonment, 631. duress from other parties, 622. effect of consummation, 628. pleading and evidence, 624. DUTY — neglect of, as a cause for divorce, 383. by wife, as cruelty, 310. 1128 INDEX. ' Eeferences are to sections. E. ECCENTRICITIES — as cruelty, 331. ECCLESIASTICAL COURTS — pleadings in, 730. no jury trial in, 801. opinion of witness received, 303. permanent alimony allowed by, 901-903. no contempt proceedings in, 939. power to require bail, 940. ECCLESIASTICAL LAW — policy of, 9. reports of, 9. no absolute divorce, 10. a part of our common law, 10. in abeyance until our courts had jurisdiction, 10. partial adoption of, 10. reason of, for divorce for cruelty, 353. definition of cruelty, 353. husband had a right to divorce for cruelty, 305. alimony always an incident of divorce, 1000. alimony av,farded on decree a mensa, 901. restitution of conjugal rights, 101. ECCLESIASTICAL PRACTICE — followed where our procedure inadequate, 3, 744 when code does not provide for cross-petition, 744, aflSrmative relief, 13. bill of particulars, 183, petition not suitable, 730. decree of confrontation, 188. permanent alimony, 901, 903, 903. excommunication prohibited, 939. opinion of witness received, 303, both the facts and evidence were set out in pleading, 333, 730. ENDANGERING LIFE — as cruelty, defined, 355. ENDANGERING LIFE, LIMB AND HEALTH, 356. ENDANGERING REASON, 363. INDEX. 1129 References are to sections. ENGLISH DIVORCE ACT — statutes, pages 1064-1068. reports of decisions under, 9. validity of American decisions in England, 33. discretion of court, 434. conduct conducing to adultery, 480. reasonable excuse for delay, 517, 518. EPILEPTIC FITS — as cruelty, 89, 325. provoking separation, 89. as a cause for divorce, 89, 325. EQUITY — divorce suit is in equity, 6. EQUITY JURISDICTION — to grant divorce, 19. grant alimony without divorce, 1000. issue writ ne exeat, 940. annul marriage for fraud, 601. grant temporary alimony for impotence, 675, 851. punish contempt, 861, 880, 989. award custody of children, 975. award attorney fees, 875. award permanent alimony, 900. guilty wife, 907. order inspection of person, 697. vacate decrees obtained by fraud, 1050. ERROR — invalidating marriage, see Feaud, Error and Duress. ESTOPPEL— doctrine of, not always applicable to divorce, 556. may apply to nullity proceedings, 570. to deny validity of decree, 556, 586. obtained by fraud, 587, 1056. by decree obtained by fraud, 537. extent of decree against non-resident, 558, 559. without actual notice, 559. obtained by fraud, 560. of decree extend to all questions that might have been litigated, 555. but not to subsequent offenses, 555. minor not estopped, 614. divorce not granted on estoppel, 374 impotent party as plaintiff, 690. 1130 INDEX. Befereuces are to sections. EVANS V. EVANS — opinion In, 353. ' criticism of, 353. EVIDENCE (see, also. Presumptions; Eecoed; Witness)— in general, 774. default, 775. depositions, 776. proof of marriage, 777. husband and wife as witnesses, 778. necessity of corroborating testimony of a party, 779. what corroboration is sutHcient, 780. confessions and admissions, 781. privileged communications between husband and wife, 783. privileged communications to physicians and attorneys, 783. testimony of children of the parties, 784. relatives and servants as witnesses, 785. ' general conduct of the parties is admissible, 338, in desertion, 107. in adultery, 168. when too remote, 169. in cruelty, 377, 336, 833, 338. after the alleged act of cruelty, 313. before the alleged act, 335. residence in the state, 48. desertion, 103-110. adultery, 140-163. cruelty, 338-343. adulterous intent, 163-176. drunkenness, 858. recrimination, 443. condonation, 463-468. connivance, 488, 489. collusion, 510. of fraud, avoiding marriage, 615. of duress, avoiding marriage, 634 of insanity, 686. of impotence, 694. suppression of, is collusion, 506. preponderance, in circumstantial evidence, 140. on application for temporary alimony, 853. permanent alimony, 918. attorney's fees, 879. INDEX. 1131 References are to sections. EX PARTE DIVORCE (see, also, Foreign Divorce)— divorce suit as a proceeding in rem, 5, 27. alimony on, 935. attachment proceedings on, 736, 935. not an adjudication of matters other than status, 936. not a bar to recovery of alimony after divorce, 936. effect on dower, 1033. custody of children, 980. effect of divorce obtained in other states, 88, 39, 30. EX POST FACTO LAW — making prior misconduct a cause for divorce, 13. desertion as a crime, 100. EXASPERATING CONDUCT — when cruelty, 286. a provocation of cruelty, 320. EXCEPTIONS (see Appeal> EXCESSES — as cruelty, 264. EXCOMMUNICATION — in ecclesiastical courts, 939. EXCUSES FOR DELAY — in full, 51,8-523. EXEAT, WRIT NE — when awarded, 940. EXECUTIOlif — issuing on decree for alimony, 938, 941. EXEMPTION — on execution for alimony, 938, of wages, 938. of homestead, 938. when alimony is exempt from set-off, 937. EXPELLING FROM HOME — husband's right, 299. EXPENSES OF SUIT (see Costs). EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, 1000, 1030. EXTRATERRITORIAL EFFECT — of prohibition of marriage, 588. of ex parte divorce, 28, 29, 30. denied in New York, 29, 586. North Carolina, 29. where denied, a marriage after ex parte divorce is void everywhere, 586. 1132 INDEX. Eeferenoes are to sections. EXTREME CRUELTY — defined, 260. EXTREME AND REPEATED CRUELTY — defined, 361, FACT OF MARRIAGE (see Marriage, Proof op, 777). FACULTIES — of husband, see Alimony. allegation of, 746. proof of on appeal for temporary alimony, 836. FAILURE TO SUPPORT — the period of neglect, 370. whether ability means property or capacity for labor, 371. sufiicient peouniar3' ability, 372. the husband's ability must be shown, 373. the neglect must be cruel and wilful, 371 and must leave the wife destitute, 375. whether there is neglect if the wife supports herself, 370. no neglect if the wife deserts, 377. allegation in the terms of the statute not sufficient, 378. FALSE CHARGE OF ADULTERY — impotence or crime, no cruelty, 277, 278, 379, 280. FALSE PRETENSE (see Fraud). FAMILIARITIES — evidence of adulterous disposition, 164-169. FAMILY — the husband's right to control, 68, 396. FATHER (see Husband). FAULT— party in, not entitled to divorce, 438, 433. if both in fault it is the duty of both to renew cohabitation, 78. FAULT-FINDING — when cruelty, 386. FEAR (see Duress). FEDERAL COURTS — no jurisdiction of divorce, 19. equity jurisdiction to annul contract of marriage, 601. enforcing decree of alimony, 943. collateral attack of divorce, 1054, IXDEX. 1133 References are to sections. FEEBLE MIND (see Mental Incapacity). FEIGNED ISSUE (see Insinckrity). FELONY (see Crime and Imprisonment, 360-365), FICTITIOUS SUIT (see Insincerity, 535) — parties punishable by contempt, 525. FIGHTING — as cruelty, 839-331. FINDINGS — in decree of divorce, 748. required where there is cross-bill, 748. additional findings in jury trials, 801. FITS — whether justify desertion, 89, 335. FLORIDA — statutes relating to divorce, page 1039. domicile, page 1054. notice, page 1070. alimony without divorce, 1003, FORCING WIPE — having venereal disease, 373. FOREIGN COUNTRY — duty of wife to follow husband to, OS. service of process in, 831. FOREIGN DECREE AND DECREES OF OTHER STATES — in general, 33. extraterritorial effect of, 30. denied where there is no personal service, 39-33. validity of American divorces, 33. German divorce in New York, 33. French decree for alimony in New York, 943. Swedish decree for alimony, 33. Kansas divorce in England, 33. Pennsylvania divorce in England, 33. full faith and credit clause, 943. cause for, immaterial, 33. alimony awarded in another state, 943. France, 943. custody of children, 980. FORGIVENESS (see CONDONATION). 1134 INDEX. Eeferences are to sections. FORMS OF PLEADINGS AND DECREES — in general, 750-768. petitions fox- divorce, 751, petition for divorce on account of cruelty, 752. answers in suits for divorce, 753. answer and cross-petition for divorce, 754 petition for annulment of marriage, 755. petition to annul marriage contracted in good faith and to have chil- dren declared legitimate, 756. petition for maintenance of child after divorce, 757. petition to set aside a fraudulent conveyance, 758. petition for alimony without divorce, 759.. application for alimony, 760. order for temporary alimony, 761. decrees of absolute divorce, 763. default upon constructive service, 763. decree of separation or limited divorce, 764 decree of nullity, 765. deci-ee for permanent alimony, 766. decree awarding alimony, custody of children and use of homestead. 767. decree restraining sale of property and restoring the wife's property and awarding use of homestead, 768. FORNICATION (see Ante-nuptial Incontinence) — no distinction between, and adultery, 135. effect of, where pregnancy is concealed, 606, 607. creates same affinity as marriage, 565. FOURTEENTH AMENDMENT — prohibiting intermarriage of white and black not a violation of, 719. FRAUD, ERROR AND DURESS — in general, 600. jurisdiction in the absence of statute, 601. fraud where the marriage is not consummated, 603. affirmance of marriage, 608. misrepresentation of chastity, 604. representing her child legitimate, 605. pregnancy concealed from innocent husband, 606. concealed pregnancy, husband guilty of fornication, 607. false representation as to paternity, 608. false representation as to paternity — child born before marriage, 609. pretended pregnancy, 610. conspiracy to bring about marriage, 611. false representations as to wealth and character, 613; nsTDEx. 113E Eeferencea are to sections. FRAUD, ERROR AND DURESS (continued) — fraud in obtaining license — false ceremony, 613. misrepresentation of age, 614. the evidence of fraud, 615. error or mistake, 616. duress, in general, 617. what duress is sufBcient, 618. unlawful arrest or imprisonment, 619. marriage under arrest, 630. threats of arrest and imprisonment, 631. duress from other parties, 633. eflfect of consummation, 633. pleading and evidence, 634 impotency is not a fraud, 683. concealing disease not a fraud, 683. FRAUD IN OBTAINING DECREE — in general, 1050-1057. decree vacated after term, 1050. fraud in proof of cause for divorce, 1051. concealing pi-oceedings, 1052. promising to dismiss,, 1053. suing in county where neither resided, 1053. concealing notice of proceedings, 1053. false affidavit as to defendant's address, 1053. sending wife out of state, 1053. effect of delay and estoppel, 1056. when parties bound by collusion, 1055. vacated after death of plaintiff, 1054. marriage of plaintiff, 1053. procedure in vacating, 1057. FRAUDULENT CONVEYANCES — when set aside, 938. allegation of, in petition for divorce, 736. decree restraining collusive judgment, 768. FRAUDULENT DIVORCE — estoppel by decree of another state, 560. subject to collateral attack, 560, 1051. delay and estoppel prevent attack, 587, 105& marriage after, 587, 1053. FRAUDULENT GRANTEE — may be made a party, 938. chattel mortgage to, set aside, 938. 1136 INDEX. Eeterences are to sections. FRENCH DECREE FOE ALIMONY — suit on, 943. FRIENDS — as witnesses in divorce suit, 785. FULL FAITH AND CREDIT CLAUSE OF FEDERAL CONSTITU- TION — applicable to decrees in rem, 29. not violated by collateral attack, 560. divorce in another state entitled to, 383. does not prevent inquiry as to jurisdiction, 39. decrees of alimony. 943. FUNDS — lack of, excuses delay, 520. G. GAMBLING — not cruelty, 283. GENERAL DENIAL — plea of, not inconsistent with recrimination, 441. or connivance or condonation, 743. issue on, see Answer, 743. GEORGIA — statutes relating to divorce, page 1030. domicile, page 1054. notice, page 1071. verdict of jury in, 801. alimony without divorce in, 1001. GIFTS — of paramour as evidence of adultery, 159. GONORRHOEA (see' Venereal Diseases). GOOD BEHAVIOR — effect of promise of, 550. GOOD OF CHILD — determines custody, 976. GOVERNMENT EMPLOYEE— domicile of, 42. GREAT-UNCLE — marriage of, 713. GROSS NEGLECT OF DUTY — as a cause for divorce, 382. allegation of, 751, INDEX. 1 Bef erences are to sections. OROSS NEGLECT OF DUTY (continued) — refusal to cohabit is, 382. may amount to cruelty, 281. by wife, may be cruelty, 310. as provocation of cruelty, 326. ■GROSS SUM — as alimony, 931. OROUND FOR ANNULMENT (see Annulment). CROUND FOR DIVORCE (see Causes for Divorce). GUARDIAN — infant must sue by, 728. • ad litem, when necessary, 728. of insane party, 729. cannot obtain divorce for ward, 729. may obtain alimony, 729. GUILTY HUSBAND — efifect of divorce, 1030. right to marry after divorce, 588. GUILTY PARTY — right to remarry, 588. when permission necessary, 588. marriage with paramour after divorce, whether void, 588 GUILTY WIFE — provision for, on divorce, 966. when awarded a portion of property, 966. custody of children, 976. H. HABEAS CORPUS — to relieve wife from restraint, 295. to obtain custody of child during suit, 977. after imprisonment for contempt, 939. ' HABIT AND REPUTE — marriage by, 777. HABITUAL ADULTERY (see Adultery). HABITUAL DRUNKENNESS (see Drunkenness) — in general, 350. incapacitating for business, 351. habit formed after marriage, 352. the drunkenness must be from liquors, not from opium, etc., 353. the habit must be shown by proving frequent recurrence, 354. 73 1138 INDEX. Keferences are to sections. HABITUAL DRUNKENNESS (continued) — negative evidence of temperance is not sufficient defense, 355i the habit must be continuous, 356. drunkenness and wasting estate, 357. sufficiency of the evidence, 358. habitual drunkenness may be alleged in general terms, 359; HALF BLOOD — same as whole, in consanguinity, 710. HAPPINESS — not insured in marriage, 386. HASTY DIVORCE — discouraged, 9. HAUGHTINESS — as an indignity, 390. HEAD OF FAMILY — rights and duties of husband as, see Husband. HEALTH — injury to, as cruelty, 352-263. extent of injury, 276. as excuse for not following husband, 68. from cohabiting with impotent person, 304. refusal of sexual intercourse, 304, HEIRS — necessary parties in vacating decree, 1054 HEREDITARY INSANITY — evidence of, admissible, 663. HISTORY OF DIVORCE — in America, 10. HOME — policy of divorce law as to, 8. innocent party may remain in after other is guilty, S99, 469; husband's right to expel wife from, 299. wife may enjoin husband from returning to, 469. HOMESTEAD — title of on divorce, 1031. when exempt from execution fdr alimony, 938. not exempt when occupied, 938. may be attached, 938. on public lands, 1033. may be allotted to wife on divorce, 1031. decree awarding use of, 767, 768. INDEX. 1139 „^„„„,, _ References are to sections. HOUSEHOLD — husband's right to manage, 396. furniture not divided, 983. HUSBAND — right of reasonable restraint, 391, 393, 394 to protect himself and property, 394. to prevent her committing crime, 394. to management of household, 393. imprisonment of v?ife, 101, 295. to flx domicile, 68. to expel wife from home. 399. to expel unsuitable relatives or associates of wife, 77, 303. to refuse to receive wife when guilty of a cause for divorce, 75, 78. to custody of children, 976. to control of children, 284, 300. responsible for cruelly to children, 301. to recover alimony or part of property, 968, no I'ight to imprison wife, 101, 394. to treat as servant, 396. to compel her to overwork, 397. tyranny of, 398. liability of for support of wife during suit, 850. after separation, 1000. after divorce, 757. where she has a cause for divorce, 95, according to his ability, 67. neglect to provide, as a crime, 100. attorney's fees in suit for divorce, 875-882. where suit compromised, 877. support of child, decree silent concerning, 983. after divorce, 981. custody awarded to mother, 983. cruelty of wife, 805-311. HUSBAND AND WIFE — mutual rights and duties, see Husband ; Wife. doctrine of reasonable restraint of husband, 391, 304. no right to seize wife and carry her to his home, 395. to treat wife as a servant,' 396. to compel her to overwork, 297. management of household, 396. relative gravity of adultery by either, 139. wife's domicile the same as her husband's, 46. until she has cause for divorce, 46. or a decree of separation, 46. 1140 INDEX. Eeferences are to sections. HUSBAND AND WIFE (continued) — husband may expel wife from home if she is guilty of a cause for divorce, 399. HYSTERIA — as impotence, 681. I. IDAHO — statutes relating to divorce, page 1030. domicile, page 1054. notice, page 1071. injury to health not a test of cruelty, 265. IDENTITY OF PARTIES — in suits for divorce on account of adultery, 187. established by photograph, 187. parties compelled to appear for, 188. decree of confrontation, 188. attorney compelled to reveal address of defendant, 1,88. order to be present, how enforced, 188. presumed from marriage certificate, 777. IDIOCY (see Insanity and Mental Incapacity). IDIOT — mental capacity to marrj', 663. IGNORANCE OF LAW — does not excuse adultery in void marriage, 582, 585. INJUNCTION — allegations for, in petition for divorce, 736. writ ne exeat regno, 940. decree restraining sale of property, 768. ILL CONDUCT OF PLAINTIFF — amounting to a cause for divorce, see Recrimination. less than cause, distinction, 89. when a bar, in cruelty, 326-331. desertion, 87-91. not a bar in nullity pi'oceedings, 435. ILLEGITIMATE CHILDREN — born of void marriage, 568. statutes changing common law, 568. of voidable marriage, not, 569. denying paternity of a child, as cruelty, 277. concealing fact of having, is not fraud, 605. INDEX. 1141 Eeterences are to sections. ILL FAME — visiting house of, evidence of adultery, 146. suflScient witii otiier circumstances, 147. circumstances, how explained, 148. ILLICIT COHABITATION — marriage beginning in, 777. ILLINOIS — statutes relating to divorce, page 1030. domicile, page 1055. notice, page 1071. place of offense material in, 33. marriage in New York after ex parte divorce void in, 29, 586. doctrine that "repeated cruelty" is repeated violence, 361. one act of violence and threats not sufficient, 361, threats do not create reasonable apprehension of cruelty, 368. no contempt for non-payment of alimony, 939. alimony without divorce, 1001. division of property in, 963. ex parte divorce, void in South Carolina, 3. valid in Tennessee, 1033. IMMATURE AGE (see Want of Age). IMMORAL CONDUCT — as cruelty, 383. IMPAIRING OBLIGATION OF CONTRACT — whether legislative divorce does, 410. whether retrospective operation of statute does, 18. IMPEACHMENT OF WITNESS (see Witness). IMPEDIMENTS FOLLOWING DIVORCE - decree prohibiting marriage of guilty party, 588. marriage pending appeal, 582a. marriage on decree nisi, 582. marriage on decree a mensa, 583. IMPERFECT CONSENT — renders marriage voidable, 672. IMPERFECT COPULA — is impotence, 675. IMPOTENCY — in general, 675. impotency defined, 676. physically incapacitated, 677. matrimonial incapacity, 678. physically incapable, 679. 1142 INDEX. References are to sections. IMPOTENCY (continued) — must be permanent or incurable, 680. forms of impotence, 681. refusing intercourse, 683. impotence as a fraud, 683. what will bar the action — adultery not a bar, 684. age of parties, 685. deed of separation not a bar, 686. recrimination not a bar, 687. delay, 688. insincerity, 689. estoppel — impotent party as plaintiff, 690. pleading — in general, 691. how impotency alleged, 693. different forms of impotency may be joined, 693. evidence — in general, 694. burden of proof, 695. triennial cohabitation, 696. inspection of the person, 697. power of our courts to compel inspection, 698. power denied, 699. when inspection necessary, 700. inspection by commission, 701. personal injury cases, 703. order for inspection, how enforced, 703. effect of decree— whether divorce or annulment, 704. impotency renders the marriage voidable, 705. IMPRISONMENT — excuses desertion, 73. of wife, unlawful, 101, 394, 395. of wife, as cruelty, 395. unlawful, is dui-ess, 619. IMPRISONMENT FOR CRIME — as a cause for divorce, 360-866. conviction must be final, 361. imprisonment, in what state, 363. for life as a divorce, 366.. for required time, 364. not a cause if marriage pending appeal, 365. form of allegation of, 751. IMPRISONMENT FOR DEBT — contempt proceedings not, 939. IMPRUDENCE — as connivance, 483. INDEX. 1143 References are to sections. INABILITY — to attend to business as test of drunkenness, 351. INABILITY TO LIVE TOGETHER - as a cause for divorce, 384 as discretionaiy cause, 388. from drunkenness, 358. not a test of cruelty, 289. INCAPACITY (see Mental Incapacity) — physical incapacity, see Impotence. INCEST (see Consanguinity and Affinity). INCOME — estimating alimony, 913. of husband, 913. of -wife, when suflEicient, 913. INCOMPATIBILITY OF TEMPER — when cruelty, 289. INCUMBRANCES (see Mortgages; Liens; Real Estate) - deducted in estimating alimony, 913, 913. INDELICATE EVIDENCE — not excluded, 189. INDIAN — half blood not a white person, 718. INDIAN DIVORCE — effect of, 34 marriage and polygamy among, 34 INDIAN TERRITORY — statutes, page 1032. INDIANA — attorney appointed in ex ■parte divorce suit, 7. statutes relating to divorce, page 1031. domicile, page 1055. notice, page 1071. no appeal from decree of divorce, 809. alimony without divorce, 1001. INDIFFERENCE OF HUSBAND — as connivance, 479, 480. INDIGNITIES — defined, 390. INDIGNITIES RENDERING CONDITION INTOLERABLE — personal violence not necessary, 390. need not injure the health, 364, 390. or endanger life, 390. 1144: INDEX. References are to sections. INDIGNITIES RENDERING CONDITION INTOLERABLE (con.) — mental suffering sufficient, 390. accusation of adultery is suflScient, 264. when condition is intolerable, 364 misconduct committed, drunkenness is not, 390. excessive use of opiates is an indignity, 390. mere desertion is not, 390. may be condoned, 454. INDISCREET CONDUCT OF WIFE — a defense to accusation of adultery, 277. to cruelty, 836. INFANT (see Custody of Children, 975; Want of Age, 731-735 j Sttpport of. After Divorce, 981, 983, 983) — as a party, 738. right to earnings after marriage, 99. liability for support of wife, 98. must sue by guardian ad litem, 161. IN GROSS OR INSTALMENTS — temporary alimony, not in gross, 850. whether permanent alimony, should be, 981. when statute permits, 931. INHABITANT (see Domicile, 40-48) — meaning of term, 41. INHUMAN TREATMENT (see Cruelty)— defined, 359. INJUNCTION — restraining-transfer of property, 786, 738. bond required, 736. INJURED PARTY — meaning of term, 433. party guilty of a cause for divorce is not, 483. INJURY TO HEALTH — as test of cruelty, 363. not where violence is the test, 263, INJURY TO LIMB — as cruelty, 356. INNOCENCE — presumption of, 580. INNOCENT AND INJURED PARTY, 438. right of, to retaliate in cruelty, 339. INNOCENT PARENT — I'ight of, to custody of children, 976. INDEX. 1145 References are to sections. INNOCENT PARTY — divorce is a remedy for an, 438, 438. no rights in marriage after void divorce, 587. IN PERSONAM — how far suit is, 5. in New York and North CaroliDa divorce suit is, 5, 29, 30. IN REM (see Proceedings in Rem). INSANE DELUSION — in cruelty, when a defense, 377, 331. defined, 660. whether incapacitating for marriage, 660. INSANE PARTIES — guardian cannot obtain alimony or divorce for, 729. suit continued for insanity, 729. ground for vacating decree, 739. absence of, not desertion, 739. INSANITY AND MENTAL INCAPACITY — in general, 650. insanity as a cause for divorce, 651. post-nuptial insanity, 653. not mere mental unsoundness, 653. the test of business ability, 654. ability to understand the nature of the marriage contract, 658. to what extent must the nature of the marriage contract be under- stood, 659. insane delusion, 660. lucid interval, 661. hereditary insanity, 663. other forms of mental incapacity, 663. marriage while drunk, 664. suicide, 665. burden of proof and presumptions, 666. eflfect of previous finding of insanity by inquisition, 667. conduct at marriage ceremony, 668. deliberate preparations for marriage, 669. afiirming marriage, 670. how marriage disaffirmed, 671. statutes declaring marriage void or voidable, 673. as a defense, in adultery, 137. nymphomonia is not, 137. cruelty, 330, 331. desertion, renders absence involuntary, 73, 739. lliG INDEX. References are to sections. INSANITY AND MENTAL INCAPACITY (continued) — V excuses condonation, 453. ' delay in nullity suit, bars, 515. malicious charge of, is cruelty, 280. INSINCERITY — as a bar, 525-537. in general, 525. suit to compel support, 526. impotence, 527. pecuniary motive is not, 525. may be in some instances, 527. conspiracy to obtain alimony, 561. INSOLVENT LAWS — do not affect order for alimony, 938. INSPECTION OF PERSON — in suits for impotence, 697-708. when necessary, 700. power to order, 698. power to order, denied, 699. by commission, 701. how order enforced, 708. INSPECTORS OF IMPOTENT PERSON, 701. INSTALMENTS — alimony in, 931. INSTRUCTIONS TO JURY, 801. INSULT — not cruelty, 262. INSURANCE POLICY — wife's interest, on divorce, 1028. INTENT — evidence of, to desert, 108. commit adultery, 163-176. element of proof of adultery, 144- undisclosed, does not excuse separation, 67. INTEREST — on overdue instalments of alimony, 931. INTERLOCUTORY ORDERS AND DECREES (see Intonction; Writ NB Exeat; Temporary Alimony) — custody of children during divorce suit, 977. INDEX. lliT References are to sections. INTERMARRIAGE- of relatives, see Consanguinity, 710-715. of races, see Miscegenation, 716-720. INTERNATIONAL LAW (see Conflict op Laws). INTERPRETATION OF STATUTES (see Statutes). INTERSTATE COMITY, 34. INTERVENTION — of third persons, 727. 'INTOXICATION (see Drunkenness). INTRODUCTORY — divorce law in general, 1. nature and definition of marriage, 2. marriage not a contract, 3. nature of the divorce suit, 4. as a proceeding in rem, 5. whether civil or criminal, 6. a triangular proceeding — the state as a party, 7. the interest of the state, 8. the ecclesiastical law and its policy, 9. our common law of divorce, 10. the divorce statutes, 11. interpretation and effect, 12. IOWA — statutes relating to divorce, page 1032. domicile, page 1055. notice, page 1071. alimony without divorce, 1000. attachment securing alimony, 736, 935, 938. ISSUE (see Pleading) — upon general denial, 743. J. JACTITATION OF MARRIAGE — suit to have marriage declared valid, see note, 756. JEALOUSY — amounting to insane delusion, 321. as cruelty, when unfounded, 277, 309 as provocation for cruelty, 326. duty of wife to allay, 277, 326. on part of wife, as cruelty, 309. 1148 INDEX. References are to sections. JEST — marriage in, validity of, 616. < JEWISH LAW, 380. divorce according to, permitted in Russia, 38. valid in America, 33. JOINDER OF CAUSES — for divorce, 735. ancillary relief, 736. forms of impotence, 693. / , causes for total and partial divorce may be joined, 735. injunction and attachment, 736. JOINING SHAKERS — a cause for divorce, 391. JOINT TENANTS — effect of divorce, 1025. JUDGE — representing state, 8. cause never concluded against, 443, 462. may vacate decree on own motion during term, 1057. JUDGMENT (see Decrbe). JUDGMENT OF ANOTHER STATE (see Foreign Deceee), JURISDICTION AND CONFLICT OF LAWS— , in general, 17. the requisites of jurisdiction, 18. what courts have jurisdiction of divorce, 19. venue, as to counties, 20. jurisdiction as limited by domicile, 21. domicile at the time of offense is immaterial, 33. the place vphere the offense was committed is immaterial, 83. the law of the place of the offense is immaterial, 34, the place of marriage is immaterial, 35. jurisdiction by appearance, 86. proceedings in rem, 87. same — personal service on defendant not necessary, 28. effect of divorces obtained in other states, 39. the doctrine that an ex parte divorce has no extraterritorial effect, 30. consequence of this doctrine, 31. distinction between the decree and the status created by divorce, 38. foreign divorces, 33. Indian and tribal divorces, 34. as limited by domicile, 31, 32, 33, 24 INDEX. 1140 Eeterences are to sections. JURISDICTION AND CONFLICT OF LAWS (continued) — of federal courts, in divorce, 19. to enforce decree for alimony, 19. to annul marriage contract, 601. lack of jurisdiction as a defense, 553. allegation of, 731. courts of common-law and chancery jurisdiction have not, 19. jurisdiction in all civil cases does not relate to divorce, 38. presumption of jurisdiction, 19. annul marriage for fraud, 601. impotence, 675. to grant temporary alimony, 851. permanent alimony, 900. alimony without divorce, 1000, 1001. modify decrees of alimony, 934. order for custody of children, 985. punish for contempt, 939. JURY — in general, 801. not a matter of right, suit in equity, 6, 801. cause tried by, cannot be joined with others, 735. JUSTICE OF THE PEACE — authority to marry must be proved, 777. K. KANSAS — divorce in, invalid in England, 33. conduct subversive of marriage relation is cruelty, 265. statutes relatmg to divorce, page 1033. domicile, page 1055. notice, page 1071. alimony where divorce denied, 906. KENTUCKY — statutes relating to divorce, page 1033. domicile, page 1056. no appeal, 908. alimony without divorce, 1000. KICKING - as cruelty, 266. KLEPTOMANIA — not a mental incapacity, 660. 1150 INDEX. References are to sections^ KNOWLEDGE — 110 condonation without, 453, want of, excuses delay, 731. LACHES (see Delay, 515-534). LAND — interest in, after divorce, see Ebal Estate. LAPSE OF TIME (see Delay, 515-524) — excuses bigamy, 595. does not destroy or dissolve marriage, 575. LARCENY — malicious charge of, a cruelty, 380. LEGISLATIVE DIVORCES — in general, 400. constitutional prohibitions, 401. implied prohibitions, 403. concurrent power of legislature, 403. divorce while suit is pending, 404. causes for legislative divorce, 405. notice to the accused party, 406. when legislative divorces are valid, 407. whether void as special legislation, 408. whether void as an exercise of judicial powers, 409. legislative divorces as impairing the obligation of contracts, 410'. effect of legislative divorces, 411. LEGITIMACY OF CHILDREN (see Illegitimate Children). LETTERS — of parties, inadmissible as evidence of connivance, 488. as privileged communications, 783, 783. of paramour, admissible if received, 176. but not if intercepted, 176. concealing, as evidence of adultery, 158. as admissions of adulterous disposition, 175. in corroboration or impeachment, 175. failure to answer, misconduct preventing divorce for desertion, 86, 89.. LEVITICAL DEGREES — table of, 713. how computed, 714. a part of common law, 718. INDEX. 1151 References are to sections. LEWD CONDUCT — of wife, justifies charge of adultery, 277. of daughters, permitted by father, is cruelty, 383. LEX LOCI — immaterial, 24, 25. LIBEL (see Pleading, 730-748). LIBERAL INTERPRETATION (see Statutes). LICENSE TO MARRY — marriage not void for want of, 722. fraud in obtaining, 613. return on, as proof of marriage, 777. LIEN ON REAL ESTATE — when alimony is, 938, 941. as other decrees, 938. LIFE INSURANCE POLICY — effect of divorce, 1028. LIMITATIONS, STATUTE OF (see Delay). LIMITED DIVORCE (see Divorce from Bed and Board, 1022), LIS PENDENS — whether divorce suit is, 938. LIVING IN ADULTERY, 130. one act not sufficient proof of, 130. clandestine acts not sufficient, 130. as husband and wife, 130. cohabitation one day sufficient, 130. separating and living in adultery, as a cause for divorce, 131. LIVING IN SEPARATION — voluntary separation, not desertion, 67. as a cause for divorce, 381. in Rhode Island, act of 1893, see Statutes op, page 1046. LIVING TOGETHER — aa evidence of adultery, 152. LOATHSOME DISEASE (see Venereal Disease). LOCALITY — of delictum, immaterial, 24. of divorce suit, see Venue ; County. LOCKING DOORS — as evidence of opportunity to commit adultery, 149, LOCKING OUT — as acquiescence in desertion, 90. 1152 ] INDEX. Eeferences are to sections. LORD ADVOCATE — appearance of in divorce suit, 7. LOST LETTER — evidence of contents, 175. LOUISIANA — statutes relating to divorce, page 1034 notice, page 1073. only like offenses are sufficient in recrimination, 440. place of offense material in, 33. no alimony without divorce, 1000. decree nisi in, 1031. LOVE — inability to love, not cruelty, 387. LUCID INTERVAL — of insane person, marriage in, 660. proof of, 666. cohabitation during, 670. LUNACY (see Mental Incapacity). LUNATIC (see Insane Parties;. M. MAIDEN NAME — right to retain after divorce, 1039. in averment of marriage, 732. MAINE — statutes relating to divorce, page 1034 domicile, page 1056. discretionary divorce in, 388. cruelty must be personal violence in, 361. MAINTENANCE OF CHILDREN (see Custody of Childebn, 97." after divorce, 981, 983, 983. MAINTENANCE OF WIFE — arrest to secure, 100. alimony without divorce, 1000. MALFORMATION — as impotence, 693. MALICE — defined, 58. does not imply hatred or enmity, 58. cruelty apprehended from actual malice, 37L INDEX. 1153 References are to sections. MALICIOUS CHARGE — of adultery, 277, 278. impotence, 379. crime, 280. insanity, 380. attempt to poison, 280. larceny, 280. incest, 280. bigamy, 280. arson, 280. MALICIOUS DESERTION — defined, 58. MALICIOUS PROSECUTION — as cruelty, 280. MANDAMUS— to dismiss petition for want of verification of petition, 738. MARITAL CONNECTION — refusal of, as cruelty, 304 desertion, 71. MARKS OF VIOLENCE — as evidence of cruelty, 342. MARRIAGE (see Void Mabhiage; Voidable Marriage) — nature of, 2. not a contract, 3. but a status, 2. a " gateway to repentance and virtue," 173, 380. allegation of, in petition for divorce, 733. denial of, in answer, 753. proof of, in divorce suit, 777. in nullity suit, 853. on application for temporary alimony, 853. presumption of, after removal of disability, 580, 581. after divorce, 581, 777. no, where parties are ignorant of disability, 581. no, where parties are ignorant of removal of disa- bility, 581. annulment of, for fraud, error, duress, 600-634. insanity or mental incapacity, 650-672. physical incapacity, 675-705. consanguinity and affinity, 710-715. prior marriage, 575-591. miscegenation, 716-730. want of age, 731-725. mock marriage, 616. 73 1154 INDEX. References are to sections. MARRIAGE (continued) — annulment of, not necessary when prior marriage exists, 585. one not a party to prior marriage may marry without decree, 585. void after decree nisi, 583. of separation, 583. void decree, in full, 586. ax parte decree, if marriage in New York, 29, 586. void during appeal, 538a. after decree by default, does not prevent new trial, 775. pending appeal, is void, 135, 538a. See contra, 361, 368. to party guilty of adultery, when void, 135. to convict, when void, 365. after divorce, effect on alimony, 933. after decree obtained by fraud, 1053. validity of, determined by place where entered into, 35. but law of residence controls as to divorce, 35. proceeding to determine validity of, 566. proceeding to have marriage declared valid, 756, note, void marriage, in general, 568. as a defense, 551. MARRIAGE CERTIFICATES — as proof of marriage, 777. MARRIAGE SETTLEMENTS — power to disturb, on divorce, 965. English divorce act concerning, 965. See, also, page 1067. effect of divorce, 1037. MARRIED WOMEN — act relating to : effect of, upon husband's right to control, 393, 393. whethei; relieves husband from duty to support, 850. support of child in her custody, 983. liability to pay temporary ali- mony, 850. liability for attorney fees, 876. MARYLAND — statutes relating to divorce, page 1035. domicile, page 1056. notice, page 1073. first law of, 3. alimony without divorce, 1000. INDEX. 1155 References are to sections. MASSACHUSETTS — statutes relating to divorce, page 1035. domicile, page 1056. notice, page 1073. early law of, 2. driving wife away is not desertion, 64. desertion as a crime in, 100. conflicting definitions of cruelty, 861. alimony without divorce, 1000. MASTURBATION — when cruelty, 283. MATRIMONIAL INCAPACITY, 678. MAXIMS — eocpressio unius est exclusio alterius, 1000, 1030. he who comes into equity must come with clean hands, 425, 426, 427. does not refer to conduct in other transactions, 486, 487, 606. a doctrine of recrimination, 427. volenti nonfit injuria, 475, 481. , fraud vitiates everything, 1050. a rule not applied where the reasons for it do not exist, 932. a party cannot take advantage of his own wrong, 47, 92, 690. MEDICINE AND MEDICAL ATTENDANCE — to withhold necessary, is cruelty, 273. MENACE — as cruelty, 268, 271, 670, 671. MENTAL ANGUISH (see Mental Suffering). MENTAL INCAPACITY (see Insanity). MENTAL SUFFERING — as cruelty, 374-290. physical effect of, must be alleged, 334. evidence of, 275. reasons for physical test of, 276. mere unhappiness is not, 886. conduct causing, is an indignity, 390. MICHIGAN — statutes relating to divorce, page 1036. domicile, page 1057. desertion as a crime in, 100. wife liable for attorney's fees, 876. alimony without divorce, 1001. 1156 INDEX> References are to sections. MINNESOTA — statutes relating to divorce, page 1037. domicile, page 1057. notice, page 1073. dower allowed although prior marriage existing, 578. alimony after divorce, 936. alimony without divorce, see case in 936. MINOR (see Custody and Support op Children ; Infant) — marriage of, see Want of Age, 731-735. may disaffirm marriage, 734. MINUTES OF JUDGE — not a decree of divorce, 579. MISCEGENATION — in general, 716. mulatto, 7] 7. persons of color and white persons, 718. civil rights bill, or fourteenth amendment, 719. such marriages valid unless declared void by statute, 720, MISCONDUCT OF PLAINTIFF — to bar divorce, need not be a cause for divorce, 87. for desertion, 87-91. conduct provoking cruelty, 326-381. retaliation not always a bar, 339. MISERLY HABITS — as cruelty, 296. MISSISSIPPI — statutes relating to divorce, page 1037. domicile, page 1057. notice, page 1073. alimony without divorce, 1000. MISSOURI — statutes relating to divorce, page 1038. domicile, page 1057. notice, page 1073. legislative divorce in, void, 403. desertion as a crime in, 100. alimony without divorce, 1000. MISTAKE (see Fraud, Error and Duress)— invalidating marriage, 616. belief that ceremony was valid, 615, INDEX. 1157 References are to sections. MISTAKE OF FACT — excuses bigamy under decree nisi, 580. adultery in void marriage, 136. and law, may render marriage voidable, 616. effect of negligence in, 137. relying on statements of attorney, 137. MISTAKE OF LAW — does not excuse bigamy under decree nisi, 580. adultery in void marriage, 134, 136. MISTAKE OF WITNESS — new trial granted for, 192 note, 934. to permit party to correct testimony, 193 note. MOCK MARRIAGE — voidable, 616. MODERATE CORRECTION — doctrine of, 293. MODIFICATION — of decree for alimony, 934 MONGOLIAN — not a white person, 718. MONOMANIA — when sufficient to prevent marriage, 653, 660. MONTANA — statutes relating to divorce, page 1038. domicile, page 1058. notice, page 1073. MORPHINE — use of, not drunkenness, 353. excessive use of opiates is an indignity, 390. cruelty during delirium from morphine habit, 324. MORTGAGE — securing alimony, 931. compelling husband to give, 941. foreclosure of, in another state, 943. extinguished by marriage, not revived by divorce, 961. by wife to husband on divorce, 963. MOSAIC DIVORCE — for uncleanness, 380. MULATTO — meaning of word, 717. MUTUAL ADULTERY — no divorce granted in case of, 429. 1158 INDEX. References are to sections, MUTUAL DISLIKE — conduct arising from, not cruelty, 288. MUTUAL FAULT — in cruelty, 336-331. conduct provoked by plaintiff is not cruelty, 336. conduct disproportionate to provocation, 337. provocation not considered, 338. retaliation, when not a bar, 338. fighting and quarrels, in cruelty, 880, 38ll N. NAME — identity of person presumed from same name, 777. of wife, after divorce, 1039. right to assume maiden name, 1039. variance in pleading and proof, 185. ot particeps eiHminis, when required, 181. obtaining decree in name of other spouse, 1053. NATURE OF DIVORCE SUIT — in general, 4. a triangular proceeding, 7. sui generis, 4. whether civil or criminal, 6. generally in equity, 6. whether ex parte suit is in rem, 5. whether a cause for divorce is a tort, 6. NEBRASKA — statutes relating to divorce, page 1039. domicile, page 1058. notice, page 1073. violence not a test of cruelty in, 365. alimony after divorce, 936. NECESSARIES — attorney's fee in divorce suit, 876. alimony, suit for, instead of at law, 1000. NE EXEAT, WRIT OF — when granted, 940. NEGLECT — as desertion, 54, 66. as an indignity, 390. NEGLECT OF DUTY (see Gross Neglect of Duty, 383)- as a crime, see Desertion as a Crime, 100, INDEX. 1159 References are to sections. NEGLECT TO PROVIDE — as a cause for divorce, 370-378. allegatioQ of, 751. wilful desertion is not sufficient, 374. neglect must be wilful and cruel, 374. there must be neglect coupled with ability to provide, 373. may be condoned, 454. allegation of, 878. NEGROES AND WHITES — marriage of, prohibited, 716-720. NEPHEW AND AUNT — marriage of, 713. uncle's widow, marriage of, 713. NEVADA — statutes relating to divorce, page 1039. domicile, page 1058. notice, page 1073. NEW HAMPSHIRE — statutes relating to divorce, pape 1040. domicile, page 1058. notice, page 1073. early law of, 11. place of offense material in, 33. NEW JERSEY — statutes relating to divorce, page 1041. domicile, page 1058. notice, page 1073. history of law in, 11. desertion as a crime in, 100. party bound by undisclosed consent to desertion, 106. habitual drunkenness a cause for divorce if cruelty, 381. alimony without divorce, 1001. no division of property, 963. NEW MEXICO — statutes relating to divorce, page 1041. domicile, page 1059. notice, page 1074. NEW TRIAL — in general, 808. general provisions of statute applicable. 808. vacating decree obtained by fraud, 1057. not granted if fraud concerned jurisdiction, 1057. 1160 INDEX. Eeterences are to sections. NEW TRIAL (continued) — setting aside default, personal service, 775. constructive service, 825. marriage does not prevent, 775. on the ground of mistake, 934, 192 note. raodiflcation of permanent alimony, 933, 984 granting alimony after divorce, 936. modification of order for custody of children, 985. NEW YORK — statutes relating to divorce, page 1041. domicile, page 1059. history of lavi? in, 11. dower allowed although prior marriage is undissolved, 578. not barred in, by ex parte decree in another state, 30. ex parte divorce of, no effect in, 30, 586. bigamy after, in, 80. marriage in, after ex parte divorce, void every where, 30, 586. service by publication in, 27, 30. / husband's domicile in, does not give jurisdiction over wife, 47. bill of particulars in, 182, 739. desertion as a crime in, 100. injury to health is a test for cruelty,' 263. mental suffering not sufiScient, 263. showing on appeal for temporary alimony, 854. no division of property, 962. alimony without divorce, 1001. alimony where divoi'ce is denied, 906. alimony on decree of separation refused, 1022. NEXT FRIEND (see Parties). NIECE — marriage of, 713. NISI DECREE — effect of, 1021. NON-COHABITATION, MERE — not desertion, 70. NON-RESIDENT — notice to, see Process and Constructive Service. right to obtain divorce, see Domicile, 40-48. may obtain divorce on cross-petition, 47. wife, rights of, 47, 48. should be allowed to sue husband, 48. NON-SUPPORT — when desertion, 66. INDEX. 1161 Eoterences are to sections. NORTH CAROLINA — statutes relating to divorce, page 1043. domicile, page IO.jO. notice, page 1074. history of law in, 2, doctrine as to ex parte divorce, 39. New York doctrine approved, 39. alimony without divorce in, 1000, 1001. desertion as a crime in, 100. NORTH DAKOTA — statutes relating to divorce, page 1043. domicile, page 1059. service by publication, page 1087. code of, see page 1087. residence of plaintiff, see California Code, page 1077. injury to health not a test of cruelty in, 365. alimony without divorce in. 1001. alimony where divorce is denied, 906. NOTICE (see Process and Constructive Service, 815-835) — to non-resident required if possible, 559. by constructive service, 817. publication of summons, 831. statutes relating to constructive service, pages 1069, 1076. effect of decree obtained without, against non-resident, 559. of application for temporary alimony, 746. of contempt proceedings, 939. personal service, out of the state, 824. lis pendens, 938. to tradesmen not to trust wife, alimony granted, 1003. law of, not applicable to chastity, 606. not necessary in legislative divorce, 406. NULLITY SUIT (see Annulment of Marriage). NYMPHOMANIA — not mental incapacity, 137. o. OATH (see Verification). OBLIGATION OF CONTRACT — legislative divorce does not impair, 410. marriage not a contract within meaning of, 3, 410. OBSCENE EVIDENCE — not excluded, 189. 1162 INDEX. Eef erences are to sections. OBSCENITY — not connivance, 481. OBSTINATE — when desertion is, 57. OBTAINING DIVORCE — as a cause for divorce, 883. OFFENDING IN HOPE OF DIVORCE — when collusion, 500. OFFENSES — joinder of in suit for divorce, 735. neglect to provide is a continuing offense, 100. desertion is a continuing offense, 1003. OFFER OF SUPPORT — is a defense to crimipal proceedings for desertion, 100. application for temporary alimony, 858. OFFER TO RETURN — effect of, in desertion, 78-79. after separation by agreement, 02. is not condonation unless accepted, 453. OFFERING INDIGNITIES (see Indignities). OHIO — statutes relating to divorce, page 1048. domicile, page 1059. notice, page 1074. alimony after divorce, 936. alimony without divorce, 1001. OKLAHOMA — jurisdiction of county court in, 19. statutes relating to divorce, page 1043. domicile, page 1060. notice, page 1075. ONE ACT OF CRUELTY — whether sufBcient, 268. OPEN AND CLOSE — right to, 802. OPEN COURT — defined, 800. OPENING AND VACATING DECREE — setting aside default, 775. annulling decree for fraud, 1050-.-1057. OPIATES (see Opium ; Morphine). INDEX. 11G3 References ore to sections;. OPINION OF WITNESS — as to drunkenness, 858. as to adultery, 203. admitted on ground of necessity, 203. as to danger when threats are made, 271. as to physical condition of plaintiff, 275. OPIUM — excessive use of, not drunkenness, 353. nor cruelty, 353. but is an indignity, 300. ORDER FOR ALIMONY (see Decree for Alimony) — • form of, temporary alimony, 761. permanent alimony, 930, 944. attorneys' fees, 880. OREGON — statutes relating to divorce, page 1044. domicile, page 1060. notice, page 1075. cross-suit is a counter-claim, 745. division of property on divorce, 985. OUT OF DOORS — turning wife out is cruelty, 299. P. PARAMOUR — as a witness, 194. ' should be corroborated, 195, 779. but not absolutely required, 195, 779. failure to obtain testimony of, 194. may claim protection, if answer tends to criminate, 194 confessions may be disregarded. 196, 781. declarations not in presence of accused, 197, 781. testimony of husband and wife of paramour, 198, 781. as a party, 760. name of, not required if unknown, 181. character of may be shown, 174. letters of, 175. husband or wife of, as witness, 198. affection for, 157. gifts by as evidence of adultery, 159. wife visiting lodgings of, evidence of adultery, 150. receiving visits of, 151. marriage of to defendant after divorce valid, 588. 1164. INDEX. References are to seotiona PARDON — effect on divorce for crime and imprisonment, 363. PARENT — right to have cliild's marriage annulled, 736. , bring suit for divorce for child, 736. consent to marriage, 733. object of statute, 733. duty of, to support after divorce, 981, 983, 933. PARENT AND CHILD — relation not dissolved by divorce, 981. PARLIAMENTARY DIVORCE (see Legislative Divorce). PARTICEPS CRIMINIS (see Paramour). PARTIES — who may maintain a suit for di voire or annulment, 738. third persons as defendants — right to intervene, 737. coverturp, infancy and guardianship, 728. insane persons as parties, 739. death of parties and revival of suit, 739a. parties on application to vacate deci-ee, 1057. PARTY CANNOT TAKE ADVANTAGE OF HIS OWN WRONG, 47 93, 690. PAUPER — costs of, 807. PENAL — divorce law not penal, 13. divorce not for punishment,, 31.5. PENDENCY OF SUIT (see Lis Pendens) — excuses cohabitation, 93. PENETRATION — imperfect, as impotence, 675. PENNSYLVANIA — statutes relating to divorce, page 1044. domicile, page 1060. notice, page 1075. place of offense material in, 33. desertion as a crime in, 100. divorce in, void in England, 33. alimony without divorce, 1001. dower after decree in rem, 1033. PENURIOUSNESS — of husband as cruelty, 296. INDEX. 1165 Eeferonoea are to seotiong, PERMANENT ALIMONY^ in general, 900. permanent alimony of the common law, 901. permanent alimony on decree of separation. 903. distinction between common-law and statutory alimony, 903. liability of wife to pay the husband alimony, 904. when alimony is refused, 905. annulment.of marriage, 905a. alimony where a divorce is denied, 906. when a guilty wife may receive alimony, 907. the amount of the permanent allowance, 908. compensation for the wife's property rights, 909. compensation for injuries, 910. compensation for loss of support, 911. the husband's income and property, 913. the wife's income and property, 918. the support of the children, 914. agreements relating to alimony. 915. other circumstances which determine the amount, 916. allowance where the husband has no property, 917. pleading and practice, 918. The Decree for Alimony, how Enforced: in general, 930. whether in gross or in instalments, 931. when the permanent allowance terminates. 933. whether marriage of the divorced wife terminates her alimony, 933. revision of decree for alimony, 933a. when permanent alimony will be revised, 934. alimony where there is no personal service, 935. alimony after divorce, 93B. when alimony is exempt, 937. the wife as a creditor of the husband, 938. attachment for contempt, 939. writ ne exeat regno, 940. other means of enforcing payment, 941. suit on foreign decree for alimony, 943. suit on decree for alimony rendered in another state, 943. PERMANENT ALLOWANCE — compared with alimony on divorce from bed and board, 903. PERMISSION TO MARRY — when necessary for guilty party after divorce, 588. PERSON OP COLOR— defined, 7ia 11 G6 INDEX. Eeferences are to sections. PERSONAL JUDGMENT (see Proceedings in Rem). PERSONAL NOTICE — of divorce suit, see Notice, PERSONAL PROPERTY — subject to claim for alimony, 938. PERSONAL SERVICE (see Summons). PERSONAL VIOLENCE — as a test of cruelty, 231-369. forms of as cruelty, 360-266. PERSONAM (see Proceedings in Rem). PETITION (see, also, Pleading) — in general, 730. allegation of jurisdiction, 731. marriage, 733. desertion. 111. adultery, 178, cruelty, 333-337. impotency, 691. ancillary relief, 736. prayer, 737. verification, 738. must be signed by party or attorney, 730, PETITION FOR ALIMONY — whether by motion or petition, 746, 747. application for temporary alimony, 746. application for permanent alimony, 747. petition for alimony without divorce, 759. PETITION, FORMS OF — petitions for divorce for various causes, 751. for cruelty, 753. petitions for annulment of marriage, 755, 756. maintenance of child after divoroe> 757. alimony, 760. alimony without divorce, 759. PETTY VEXATIONS — as cruelty, 386. PHYSICAL EXAMINATION, 697, 703. PHYSICAL TEST — of mental suffering, 374. reasons for, 276. INDEX. 1167 References are to sections. PHYSICALLY INCAPACITATED — is impotence, 677. PHYSICIANS — testimony of, 161, 274. PIMPS — as witnesses, 201. PLACE (see Domicile) — of marriage, immaterial, 25. allegation of cruelty, 335. where offense committed, immaterial, 33. where adultery committed, immaterial, 128. material where desertion is a crime, 100. statutes relating to place, S3, venue as to county, 20. PLAINTIFF (see Parties) — must be an innocent and injured party, 432. cannot procure divorce for defendant, 50.5, 1052. misconduct of, barring divorce for desertion, 87-91. PLEADING — the petition, 730. allegation of jurisdiction, 731. how marriage alleged, 732. plaintiff need not anticipate defenses, 733. premature suit, 734. joinder of causes, 735. causes for ancillary relief may be joined, 786. the prayer, 737. verification, 788. bill of particulars, 739. supplemental pleadings, 749. amendments, 741. demun-er, 742. answer, 743. cross-bill for affirmative relief, 744 statutes permitting cross-bills, 745. applications for temporary alimony, 746. applications for permanent alimony, 747. decree, 748. indefinite pleading, cured by bill of particulars, 182, 789. motion to make definite, 182, 739 but not by demurrer, 743. redundant and irrelevant matter, 743. 1168 INDEX. Eeterences are to sections. PLEADING (continued) — allegation of desertion, 111-114 cruelty, 333-337. adultery, 178. certainty as to time and place, 179. habitual drunkenness, 359. failure to support, 378. separation, when necessary to allege, 337. irapotency, 691-698. necessity of pleading defenses: recrimination, 441, 443. connivance, 483, 489. collusion, 510. condonation, 463. delay, 524. defenses need not be anticipated, 733. POISON — attempt to, is cruelty, 366. threats of poisoning, 371, 308. threats and attempts of wife, 308. malicious charge of attempts to poison as cruelty, 380. POLICY OF LAW — confidential communications, 783, 783. communications of husband and wife, 783. annulment for ante-nuptial unchastity, 380. to encourage reformation, 73, 79. reconciliation, 454, 456. marriage, 8, 381. to prevent divorce, 8. alienation of real estate, 931. divorce for insanity not against, 651. prevention of fraudulent divorce, 1050. POLYGAMY (see Bigamy). POST-NUPTIAL INSANITY — a cause for divorce, 651, 653. POVERTY OF HUSBAND — released from contempt on proof of, 939. alimony where husband has no property, 915. does not excuse desertion by wite, 66. . not defense to appeal tot temporary alimon}^ 856. POVERTY OF WIFE — proof of, on application for alimony, 855. INDEX. 11G9 Eeferences are to sections. PRACTICE — under code, see Statutes. ultimate facts, and not evidence, alleged, 333. of ecclesiastical courts, when followed, 744. provisions of code as to depositions followed, 776. when suit is premature, 734. PRAYER (see PLEADlNa, 738) — relief must not exceed, 737. may be amended, 737. PRECONTRACT — disability of, not a part of our common law, 565. PREGNANCY — when concealed is a fraud, 606. ante-nuptial, 605-610. unknown, at marriage, as a cause for divorce, 379. effect of still-born child, 379. cruelty during, 318. PREJUDICE — dismissal without, 555, 734 PREMATURE SUIT — dismissal of, not a bar, 555. filing amended petition in, 133. when divorce granted in, 734. PRESUMPTION — of divorce, 579, 580, 777. jurisdiction of divorce, 19. marriage after divorce, 580. after removal of disability, 681. death, 584. condonation from cohabitation, 457. from delay, 516. innocence, 580. of legitimacy, 615. in favor of marriage, 580, 581. of sanity, 666, 667. that a condition proved continues, 80, 104, 581. continued insanity, 137, 667. continued cohabitation, 337. continued adultery, 153. illicit intercourse in void marriage, 580. sexual intercourse during cohabitation, 467. consent to separation, 103. 74 117C INDEX. Eeterenoes are to sections. PRESUMPTION (continued) — justification for separation, 105. of adultery from venereal disease, 161. from wife's departure, 290. PRIMA FACIE CASE — desertion, 103, 106. PRIOR MARRIAGE UNDISSOLVED — in general, 575. general doctrine of this chapter, 576. when prior marriage is undissolved second marriage is void, 577^- when second marriage is voidable under statutes, 578. void although divorce subsequently obtained, 579. presumptions in favor of marriage, 580. knowledge that disability has been removed, 581. marriage before decree nisi is made absolute, 583. marriage during time for appeal, 582a. ■ marriage after a decree a mensa, 583. belief that prior marriage was dissolved by death, 584. belief that prior marriage was dissolved by divorce, 585. marriage after void decree of divorce, 586. decree obtained by fraud, 587. remarriage of guilty party, 588. bigamy as a cause for divorce, 589. effect of void marriage at the common law, 590. void marriages under the civil law, 591. one not a party to prior marriage can marry again without divorce; 585. party guilty of bigamy cannot obtain a divorce, 579. but can render second marriage valid by remarriage after dis- solution of prior marriage, 579. PRIVATE CONVERSATIONS — of husband and wife, privileged, 783. PRIVILEGED COMMUNICATIONS — husband and wife, 783. physicians, etc., 161, 783. PROBATE COURTS — jurisdiction, of divorce, 19. in territories, 19. PROCEDURE- when code of civil procedure applies, 6. ecclesiastical practice followed, 3. parties, 736-739a. petition, 730-740. INDEX. 1171 Beferences are to sections. PROCEDURE (continued) — motions, 739. amendments, 741. demurrer, 742. answer, 743. trial, 800, 803. evidence, in general, 774, 785. on application for temporary alimony, 746. for permanent alimony, 747. to vacate decree, 1057. suit for alimony without divorce, 1003. PROCEEDINGS IN REM (see Ex Parte Divorce) — defined, 5. whether divorce suit is, 5, 27. doctrine in New York, 5, 29, 80. North Carolina, 5. South Carolina, 3. alimony without personal service, 935. attachment to secure alimony, 100, 736, 935. set aside fraudulent conveyance, 935. alimony after ex parte divorce, 936. dower after ex parte divorce, 1033. custody of children, effect of decree, 980. PROCESS AND CONSTRUCTIVE SERVICE — process or summons, 815. waiver of process, 816. constructive service, 817. defective service, when void, 818. the aflSdavit of non-residence, 819. sheriff's diligence before publication, 830. the notice, 831. mailing copy of summons and petition to defendant, 823. proof of publication, 833. personal service out of the state, 834. decree based on constructive service, how vacated, 835. PROFANE AND ABUSIVE LANGUAGE — as cruelty, 384 PROHIBITED DEGREES (see Consanguinity and Affinity). PROHIBITION — of legislative divorce, 401, 403. PROHIBITION OF MARRIAGE — after divorce, 588. no extra-territorial effect, 588. 1172 INDEX. References are to sections. PROHIBITION OF MARRIAGE (continued) — statute not contrary to public policy, 588. act not retrospective, 12, 588. PROOF — must correspond with allegations, 338. , general conduct of parties admissible, 338. in desertion, 107. in adultery, 168. in cruelty, 277, 336, 333, 33a prior and subsequent acts, 313, 335. PROPERTY (see Real Estate) — division of on absolute divorce, 960-966. PROSPECTIVE INTERPRETATION — preferred, 13. PROSTITUTE — defined, 200. associating with, as evidence of adultery, 193. testimony of, should be corroborated, 200. may be disregarded, 200. representing herself chaste, when fraud, 604. keeping, as cruelty, 382, 283. PROVOCATION — for cruelty, 336-331. conduct disproportionate to, 337. PUBERTY — age of, 731. PUBLIC — as a party, 7. divorce suit triangular, 7. represented by court, 7. attorney, 7. PUBLIC DEFAMATION — as ^ cause for divorce, 392. must be malicious and public, 393. accusation of adultery, 277, 378, 309, 392. denying paternity of child as cruelty, 277. PUBLIC LANDS — homestead after divorce, 1033. PUBLIC POLICY — encourages condonation and reconciliation, 454, 456. marriage, 881. INDEX. l|'iJ3 References are to sections. PUBLIC POLICY (continued) — does not require vacation of decree for fraud after delay and birth of children, 587. divorce for insanity not against, 651. PUBLICATION OF SUMMONS (see Constructive Service, 817) — form of notice, 831. proof of, 82a diligence before publication, 830. PULLING HAIR — is cruelty, 366. PUNISHMENT— divorce is not for, 315. husband no right to punish wife, 393. to punish children, 300. Q. QUARREL — violence in, is not cruelty, 331. QUASI IN REM — divorce suit said to be, 5, 27. QUEEN'S PROCTOR — intervention of in divorce, 7. R. RACES — intermarriage of, see Miscegenation, 716-730. RANK — social condition, eflEect of cruelty, 316. RAPE — not adultery on part of woman, 135. attempt to commit, as cruelty, 383. RATIFICATION (see Voidable Marriage). ' REAL ESTATE — division of, on divorce, 960-966. dower and curtesy, after divorce a mensa, 1033. dower after divorce, 1034, 1033. homestead may be sold or allotted to wife, 938, 1031. on public land, 1033. divesting title, on divorce, 962. tenants by entireties, effect of divorce, 1035. 1174 INDEX. Keferences are to sections. REAL ESTATE (continued) — joint tenants, effect of divorce, 1035. community property, on divorce, 965. lien of decree for alimony, 988-941. lis pendens, divorce suit as, 938, 941. fraudulent conveyance of, to defeat alimony, 938. mortgage on land in another state to secure alimony, 941. conveyance by both to child not subject to lien for alimony, 933. conveyance by husband enjoined, 938. general lien of decree for alimony, 938, 941, policy of law encouraging alienation, 931. enforcing agreement to convey, 964. REASONABLE CAUSE — for separation, defined, 95, 138. vehat is, 93-97. a cause for divorce is, 95. what is not, 97. refusal to live with wife's relatives, 97. to compel servants to obey wife, 97, to pay board to wife, 97. poverty of husband, 97. i charge of crime, 97. inability to satisfy sexual desires, 97, fear of having children, 97. refusal of sexual intercourse, 97. REASONABLE DOUBT — doctrine of, in divorce suit, 143. whether a crime must be proved beyond a, in a civil action, 143. REASONABLE RESTRAINT — husband's right of, 390, 391, 393, 394. RECEIVER — alimony secured by, 941. on failure to pay alimony, taxes, etc., 941. RECONCILIATION — condemnation must effect, 450. encouraged by law, 78. refusing, is desertion, 78-79. when refusing, is consent to separation, 91. avoids decree for separation, 93. alimony without divorce, 1003. "door of repentance " must be always open, 91. waiting for, excuses delay, 519. INDEX. 1175 References are to sections. RECORD — proof of marriage by, 777. certified copy of marriage record, 777. divorce, 19, 39. desertion, prior suit for maintenance, 110. adultery, 186. sodomy, 186. cruelty, 339. insanity, 127. BECRIMINATION — in general, 435. origin of the doctrine, 436. he who comes into equity must come with clean hands, 437. divorce is a remedy provided for an innocent party, 438. adultery is a bar in all cases, 439. whether any icause for divorce is a bar, 480. American doctrine, 431. statutory recrimination, 433. the recrimination must be a cause for divorce, 433. whether a cause for a decree of separation is sufficient, 434> recrimination is not applicable to nullity suits, 435. plaintiflE's cruelty bars divorce for adultery, 436. plaintiff's cruelty bars divorce for desertion, 437. plaintiff's desertion bars divorce for cruelty, 438. adultery bars adultery, 439. whether plaintiff's cruelty bars divorce for cruelty, 440. recrimination must be pleaded, 441. effect where recrimination is disclosed by plaintiff's testimony, 443. evidence, 443. form of allegation, 753. not a defense in nullity proceedings, 435, .370, 687. iREFEREE — in divorce suits, 806. JBEFORMATION — after adultery, custody of children, 976, encouraged by law, 380, 604. "door of repentance" must always be open, 91. misrepresentation of chastity not fraud, 604. ante-nuptial unchastity not a cause for divorce, 380. promise of, in cruelty as a defense, 550, 304, 318. effect of, in habitual drunkenness, 356. .of marriage settlement, 965, 1037. 1176 INDEX. References are to sections. REFUSAL — to cohabit, is desertion, 63, 63. of offer to renew cohabitation, is desertion, 73-79. of sexual intercourse, may be cruelty, 304. desertion, 71. does not justify desertion, 97. not proof of impotency, 683. of servants to obey wife, does not justify desertion, 97. of personal examination, in impotence, 683. to be cured of impotence, 683. to follow to new domicile, is desertion, 68. to emigrate, when desertion, 68. to live with wife's father, does not justify desertion, 97. to support wife, see Failure to Support ; Alimony Without Di^ VORCB. a party may refuse to condone an offense, 75. to speak, is cruelty, 388. REFUSING TO RECEIVE — is desertion if there is no cause for divorce, 73-79. party having cause for divorce may, 91. REHEARING (see New Trial). RELATE BACK — decree of divorce does not, 579. RELATION OF HUSBAND AND WIFE — destroyed by absolute divorce, 1034-1038. death, 1034-1033. not by decree nisi, 1031. from bed and board, 1083. RELATION OF PARENT AND CHILD — not destroyed by divorce, 981, RELATIONSHIP — as impediment to marriage, see Affinity and Consanguinity, RELATIVES — as witnesses, 785. interfereOce of, in divorce suit, 736. right of parent to intervene, 760. adultery not presumed from familiarities with, 160. husband may refuse to receive wife's relatives, 303. RELEVANCY — of evidence, see Evidence. RELIEF— ' general prayer for, 737. INDEX. 1177 References are to sections. RELIGION — joining Sliakers as a cause for divorce, 391. evil appreliended from religious eccentricities, 285, 314. cruelty arising from, will probably continue, 314. Christian science, as cruelty, 285. Sanctificationist, belief of and conduct as cruelty, 285. cruelty inflicted in prayers, 314. husband no right to prevent wife from attending church, 394. uniting with sect believing cohabitation unlawful, 391. if both unite, one may withdraw and obtain divorce if the other re- fuses, 391. REM (see In Personam, and Peoceedings in Rem) — whether divorce suit is in rem, 5. REMARRIAGE AFTER DIVORCE — in general, 688. when permission necessary for guilty party, 588. prohibition as to guilty party, 558, 588. no right of, on divorce from bed and board, 583. on void decree, 586. on decree nisi, 583. when prior marriage is undissolved, 575-591. on belief that marriage is dissolved, 584, 585. in New York, after ex parte divorce in another state, 586, effect on alimony in instalments, 933. in gross, 933. custody of children, 935. fraudulent decree of divorce, 587. REMARRIAGE AFTER VOID MARRIAGE — in general, 575-591. decree of annulment not necessary, 568. REMEDY — for desertion and failure to support, 1000. arrest for desertion, 100. civil liability, 98. alimony without divorce, 1000. restitution of conjugal rights, 101. RENEWAL OF COHABITATION — condonation presumed from, 467. refusal to, desertion, 63. destroys continuity of desertion, 81. cause for dismissing bill, 467. avoids decree for maintenance, 92. alimony, 1003. 1178 INDEX. References are to sections. RENT — of home in estimating alimony, 912. REPEAL OF STATUTE — effect on existing cause for divorce, 3. REPEATED CRUELTY — doctrine of, in Illinois, 361. REPORTS — of English and eccleciastical courts, 9. REPUTATION — of defendant, whether admissible, 10, 165, 172. of paramour, is admissible, 174 of house, 147, 148, 149. REQUEST TO RETURN — refusing, is desertion, 78. RES AD JUDICATA — doctrine of, applies to divorce suits, 555. extends to all the parties might have litigalted, 934. as a defense, 555. voidable or en-oneous decree is a bar until vacated, 555. decree a mensa not a bar to suit for absolute divorce, 555. decree denying absolute divorce is a bar to suit for separation for same cause, 555. estoppel extends to all property rights which might have been liti- gated, 555, 934. but not in ex parte proceedings, 934, 935, 980. but not to separate offenses not alleged, 555. dismissal of premature suit not a bar, 555. whether divorce bars alimony, 935, 986. RES GEST^ — when declarations admissible as, 109, 341. RESIDENCE (see Doshcilb, 40-48) — nature of, to give jurisdiction, 42. actual distinguished from legal, 42. allegation of, 731. proof of, 43. change of, after commencing suit, 30. does not break continuity of desertion, 80. RESIDENT (see Domicile). RESPONDENT (see Parties). RESTITUTION OF CONJUGAL RIGHTS — as a remedy for desertion, 101. our courts have no jurisdiction to enforce, 101. INDEX, 1179 References are to sections. RESTITUTION OF CONJUGAL RIGHTS (continued) — enforced by imprisonment but not by attachment, 101. is in effect a suit for alimony, 101. and a foundation for divorce for desertion, 101. barred by articles of separation, 101. may proceed on substituted service, 101. written demand for, is a necessary prerequisite, 101. decree does not confer right to imprison wife, 101. RESTORATION OF PROPERTY — on annulment of marriage, 1033. to wife on divorce, 960. effected by estimating value in allowance, 963. personal property restored, 965. form of decree Bestoring wife's property, 768. RESTRAINT — doctrine of reasonable restraint of husband, 390, 391, 393, 294 not a right to imprison, 101. RESTRAINT OF MARRIAGE — statute prohibiting marriage after divorce, 588. statute prohibiting marriage of black and white, 719. decree terminating alimony on wife's marriage, 933. RETALIATION- not always a bar in cruelty, 839. RETROSPECTIVE INTERPRETATION — in full, 5. RETROSPECTIVE LEGISLATION — in full, 4 prohibition of marriage of guilty party not, 588. REVISION — of decree for alimony, 933a, 934 REVIEW (see Appeal). REVIVAL — of suit after death, 729a. of condoned offenses, 456, 458, 459. of condoned cruelty, 457. REVOCABLE — consent to separation is, 73-79. RHODE ISLAND — statutes relating to causes for divorce, page 10461 domicile, page 1061. notice, page 1075. alimony without divorce, 1000. 1180 INDEX. References are to sections. RIGHTS OF HUSBAND AND WIFE (see Husband and Whb). RUDE AND DICTATORIAL — conduct as cruelty, 286, RUDENESS — is an indignity, 390. RUSSIA — Jewish divorce in, valid, 33. s. S^VITIA — defined, 254 SALARY — when exempt on execution for alimony, 938. SANCTIFIC ATIONIST — cruelty by, 285. SCANDAL — not evidence of adultery, 138-141. SCIRE FACIAS — on decree for alimony, 941. SCOTLAND — absolute divorce in, for desertion, 55. SECOND MARRIAGE (see Prior Marriage Undissolved, 575-591). SECURITY— for decree of alimony, 941. lien on real estate, 938, 941. how enforced, writ ne exeat, 940. SEDUCTION — arrest for, as duress, 619, 620. SELF- ABUSE — impotency caused by, 680. SELLING PROPERTY AND REFUSING TO PROVIDE - as a cause for divorce, 374. SENTENCE (see Decree). SEPARATE BEDS — no condonation presumed, 467. SEPARATE ESTATE OF WIFE — in estimating alimony, 913. SEPARATE MAINTENANCE (see Alimony Without Divorce). INDEX. 1181 Eeferences are to sections. SEPARATION (see Articles of Separation; Reasonable Cause FOR) — > voluntary, as a caase for divorce, 381. provoked by plaintiff, not desertion, 88. by agreement, not desertion, 67. is revocable, 73-79. becomes desertion on refusal to cohabit, 63. when justifiable, in desertion, 92-97. •when necessary to allege, in cruelty, 337. SEPARATION, DECREE OF (see Decree) — distinguished from dissolution, 903. nature and effect of, 1033. SEPARATING AND LIVING IN ADULTERY — as a cause for divorce, 131. both desertion and adultery must be shown, 13L SEQUESTRATION— enforcing alimony by, 941. SERVANTS — as witnesses, 785. failure to disclose facts at the time, 531, 785. ill-treatment of, aa cruelty, 301. attempt to debauch, when cruelty, 381. SERVICES — liability to woman for, after annulment, 1033. father's right to, of children, 981, 983. SETTLEMENT (see Marriage Settlement). SET-OFF — husband cannot have, against alimony, 987. SEXUAL INTERCOURSE — presumed from cohabitation, 453, 467. condonation presumed from sexual intercourse, 453. incapacity for, is impotence, 676. refusal of, as desertion, 71. as reasonable cause for separation, 97. cruelty, .304. considered as a' wrong, decreases alimony, 71, note, excessive intercourse, as cruelty, 304. SHAKERS — uniting with, as a cause for divorce, 391. SICK — cruelty while, 318. 1182 IKDEX. References are to sections. SICKNESS — excuses desertion, 73. adultery not presuuied during, 72. inexcusable neglect during, 273. SILENCE — as cruelty, 388. SISTER— marriage with deceased wife's, 714. SISTER STATES, JUDGMENTS OF (see Fobeiqn Deckees)i SIXTEEN YEARS — as age of custody, 975. SLANDER — as cruelty, see Accusation op Adultery or Crime. calling wife whore or bitch, a cruelty, 379. SLAVE — sexual intercourse with, is adultery, 125. SODOMY — as a cause for divorce, 393. SOLICITOR (see Attorney). SOLICITATIONS — of other women, revives adultery, 459. SOUTH CAROLINA — history of law of, 11. ex parte divorce void in, 1033. marriage a contract in, 3. alimony without divorce, 1000. dower not barred by decree in rem, 1033. SOUTH DAKOTA — code of, page 1077. residence in, see page 1061. injury to health not a test of cruelty, 265. SPEAK — refusal to, as cruelty, 388. SPECIAL FINDINGS — of jury, 801. request for, in jury trials, 801. SPECIAL LEGISLATION — when legislative divorce is void as, 408. SPENDTHRIFT — may sue in his own name, 728. INDEX. 1183 References are to sections. SPIRITUAL ADULTERY, 436. SPIRITUALISM — not evidence of mental incapacity, 660. SPITTING IN PACE — as cruelty, 266. STAINS ON LINEN — as evidence of venereal disease, 161. STATE — laws of, for its own citizens, 41, 45. interest of, in suit for divorce, 8. powerless to enforce cohabitation, 8. protected by authorized attorneys, 7. represented by the court, 7. no jurisdiction because offense committed in, 33. interstate comity, 28-30, 33. offense made a cause for divorce though not so where committed, 33. other state, maiTiage in, 29. decrees of, annulled for fraud, 560, 1051. decrees of, extra-territorial effect of, see Foeeign Decrees, STATION AND RANK — in cruelty, 316. alimony to wife according to, 908. STATUS — defined, 2. of marriage, 2. as to marriage and divorce, valid everywhere, 31, 33. distinction between decree and status, 32. STATUTES — relating to divorce, 11. digest of divorce statutes, see pages 1035-1087. history of, 11, uniformity of, desirable, 11. liberal construction of, 13, 963. strict construction of statute requiring residence, 45. prospective interpretation, 12. new remedy applicable to past offenses, 12. interpreted with reference to common law, 10, 13. additional remedies do not prohibit inherent powers, 939. repeal of, effect on existing cause for divorce, 12. do not define, causes of action are jurisdictional, 13. referring to discretion of court, see Discretion of Court. 1184: INDEX. Eeferenoes are to sections. STATUTES (continued) - desertion, statutes relating to, 50-61. cruelty, statutes relating to, 360-265. jurisdiction of court of equity in absence of statute, 19. to annul marriage for fraud, 601. impotence, 675. to order inspection of person, 697. to grant temporary alimony, 851. suit money and attorneys' fees, 875. permanent alimony, 900. alimony without divorce, 1000. to punish for contempt, 880, 939. to vacate decree obtained by fraud, 1050. to issue vprit ne exeat, 940. Code of Civil Procedure when Applicable to Divorce Suit, 3, statute of limitations does not apply, 517. provisions relating to continuance, trial by jury, 801. new trial, 808. appeal, 809. attachment, 935. change of venue, 804. reference, 806. costs, 807. contempt, 939. default, 775. change of venue, 804. counter-claim, 12, 745. bill of particulars, 739. special findings, 801. venue, change of, 804 STATUTES OF LIMITATION — general, do not apply to divorce, 517. apply tovacation of decree for fraud, 587. sterility- Is not impotence, 675. STRATAGEM — removing by, is desertion, 64. STRIKING — is cruelty, 266. STRUMPET (see Pkostitute). SUICIDE — creates no presumption of insanity, 665, INDEX. 1185 References are to sections. SUI GENERIS — divorce suit is, 4, 6. SUIT — effect of premature, 734 SUIT MONEY (see Alimony). SUIT PENDING (see Lis Pendens) - legislative divorce while, 404. as a defense, 554. SUMMONS — in general, 815. indorsement, 815. waiver of process, 816. personal service in another state, 834. foreign country, 824. personal service not necessary, 28. SUPPLEMENTAL PLEADINGS, 740. alleging act of cruelty subsequent to suit, 335. court may refuse to permit filing, 740. defense may be set up by, 740. SUPPLICAVIT — alimony on supplicavit, 1000. SUPPORT OF CHILDREN — after divorce, 981. where decree is silent as to, 983. where custody is awarded to wife, 983. considered in awarding alimony, 914 SUPPORT OF WIFE — neglect to, as cause for divorce, 370-378. arrest for failure to, 100. husband liable. for, at common law, 1000. alimony without divorce, 1000-1003. where divorce is denied, 905. after divorce, 936. temporary, 850-863. permanent, 900-943. continuing to support wife does not destroy continuity of deser- tion, 83. SURVIVOR — divorced woman not a widow, 1034. man not a widower, 1024. right to dower, 1026. curtesy, 1030. 75 I 1186 INDEX. Eeterences are to sections. SWEDEN — divorce in, when valid, 38. SYPHILIS (see Venereal Disease). TABLE OF DEGREES — of prohibited marriages, 711. TAKEN IN ADULTERY — divorce granted to husband when wife is, 129. TELEGRAMS — as admissions, 783. TEMPER - violent and ungovernable, a cause for divorce, 387. not insanity, 330. uncontrollable, creates necessary apprehension, 271. TEMPORARY ABODE — is not domicile, 44. TEMPORARY ALIMONY (see, also. Alimony; Permanent Alimony; Alimony Without Divorce) — in general, 850. the power to grant temporary alimony, 851. annulment of marriage, 853. evidence on application for alimony — proof of marriage, 853, same — probable cause for divorce or a valid defense, 854. same — poverty of the wife, 855. same — the husband's income, 856. defenses to application, 856a. same — misconduct of the wife, 857. same — offer to support wife, 858. amount of temporally alimony, 859. when temporary alimony commences and terminates, 860. how the order is enforced, 861. appeal, 863. temporary alimony on appeal, 868. TEMPORARY INSANITY — marriage during lucid interval, valid, 661. drunkenness as, 664. delirium tremens as, 333. TENANCY BY ENTIRETIES — effect of absolute divorce, 1035. INDEX. 1187 References are to sections. TENNESSEE — statutes, relating to divorce, page lOtS. domicile, page 1061. notice, page 1074. alimony divorce denied, 906, 1001. alimony without divorce, 1001. dower barred by decree in rem, 1033. TERM — opening decree during, see DEFAm.T, 775. TERRITORIES — legislative divorce in, 409, 410. jurisdiction of probate courts in, 19. statutes in Indian Territory, page 1033. Oklahoma, page 1043. TEST FOR INSANITY, 655. TEXAS — statutes relating to divorce, page 1047. domicile, page 1061. notice, page 1076. no alimony without divorce, 1000. THIRD PERSONS — as parties, see Parties, 727. fraudulent grantee, 727. mortgagee of chattels, 727. paramour, 727. co-respondent, 737. creditor cannot intervene, 727. interest of, is interest of the state, 8. right of third person to be made a party, 727. to avoid decree obtained by fraud, 557, 727. to have subsequent marriage annulled, 557. children cannot have decree vacated, 727. second wife a necessary party, 737. third wife a necessary party, 737. custody of children may be awarded to, 976. divorce suit by, 736. nullity suit by, 736. conspiracy by, rendei-s marriage voidable, 611. duress by, renders marriage voidable, 633. THREATS (see Duress) — of violence, as cruelty, 368, 670, 671.' of poisoning, 371, 303. of shooting, 371. causing desertion bj' threats of leaving, 67, 88. 1188 INDEX. References are to sections. THROWING WATER — as cruelty, 366. TIME — lapse of, see Delay. TIME AND PLACE — necessity of alleging in suit for adultery, 180-184. cruelty, 335. TITLE (see Division op Property ; Real Estate ; Doweh ; Curtesy ; Community Peopekty). TORT — whether a cause for divorce is a, 3, 4. TRIAL (see New Trial)- in open court, 800. general procedure, 802. right to open and close, 802. TRIAL BY JURY — in general, 801. when a constitutional right, 801. instructions to jury, 801. TRIANGULAR — divorce suit is, 7. TRIENNIAL COHABITATION — impotence presumed from, without consummation, 696. TRUST — property cannot be awarded in trust for children, 963. TRUST FUND — applied to payment of alimony, 938. TURNING OUT OF DOORS — as cruelty,' 299. as desertion, 64. by wife, is gross neglect of duty, 383. TYRANNY — of husband, as cruelty, S98. u. ULTERIOR PURPOSE (see Insincerity). UNCHASTITY (see Ante-nuptial Unchastity) — as fraud, see Fraud, 604. UNCONSTITUTIONAL (see Constitutional Law). INDEX. 1189 References are to eectiona UNHAPPINESS — causing, is not cruelty, 386. UNINTENTIONAL ACT — not cruelty, 319. UNITED STATES (see States) — history of divorce law in, 11. ecclesiastical law as a part of common law of, 10. UNITED STATES COURTS — no jurisdiction of divorce, 19. may enforce decree for alimony, 19, 943. doctrine of supreme court as to legislative divorce, 407. collateral attack of divorce in, 1054 cancellation of marriage contract, 601. homestead on public lands, after divorce, 1033. UNITING WITH SHAKERS — as a cause for divorce, 391. UNKNOWN PERSON — name not required, 181, 185. UNREASONABLE DELAY (see Delay, 515-534) — what is, 515. UNSAFE — what conduct renders cohabitation unsafe, 389. UNSOUND MIND (see Mental Incapacity). UNWRITTEN LAW — of United States, 10. USELESS ACT— the law does not require, 78, UTAH — statutes relating to causes for divorce, page 1048. domicile, page 1061. notice, page 1076. divorces in, void for lack of jurisdiction, 31. desire to become a resident, not actual residence, 31. jurisdiction of probate courts in, 19. UTTER — effect of, qualifying desertion, 59. UTTERLY DESERT — defined, 59. not an abnegation of all duties, 54, 51 refusal of sexual intercourse is not, 71. 1190 INDEX. Eeferences are to sections. VACATING DECREE (see Annulling Dkcree for Fraud, 1050-1057)— default on constructive service, 835. setting aside default, 775. for fraud, 1050-1057. afier term, 1050. deatli, 1054. marriage, 1053. VARIANCE— as to time and place in adultery suit, 184. not fatal if within limitations, 184. general conduct of parties admissible in divorce suit, see Evidence. as to person, is fatal, 185. where name alleged, proof of unknown person insufficient, 185. VENEREAL DISEASE — communicating, as cruelty, 373. ignorance of, excuses cruelty, 273. not presumed from husband's adultery, 373. as evidence of adultery, 161. keeping usual remedies as evidence of, 161. condonation with knowledge of, 372, 453, 454. cannot be condoned if a physical incapacity, 454. VENUE — as to counties, 30. suit in wrong county, fraud, 1053. change of, 804. VERDICT — in general, 801. when advisory, 801. decree contrary to, 801. VERIFICATION (see Pleading, 738) — not required in cross-bills. 744. VERMONT — statutes relating to divorce, page 1048. domicile, page 1063. notice, page 1076. desertion as a crime in, 100. alimony without divorce, 1001. VICE AND IMMORALITY — not causes for divorce as cruelty, 283. INDEX. 1191 References are to sections. VILE LANGUAGE - as cruelty, 384 VIOLENCE — as a form of cruelty, 266-373. marks of, as evidence of cruelty, 343. doctrine that court will not interfere until inflicted, 361. not a test of cruelty at common law, 263, 269. one act sufficient, 268. VIOLENT AND UNGOVERNABLE TEMPER — as a cause for divorce, 387. VIRGINIA — statutes relating to divorce, page 1048. domicile, JDage 1063. notice, page 1070. ante-nuptial incontinence a cause for divorce in, 380. alimony without divorce, 1000. VIRGINITY — as proof of impotence, 694 VISITS — from relatives, husband may prohibit, 303. VOID AND VOIDABLE — definition and use of terms, 567. VOID DIVORCE — for want of domicile in state, 19. adultery by marriage aftei', 134. not a bar to suit for divorce, 555. not void for want of ratification of petition, 738. acquiescence in, estoppel, 556. marriage after, is void, 586. ex parte divorce, void in some states, 586. vacated although inno'cent party relied upon, 586. children born, 586. VOID MARRIAGE (see, also. Prior Marriage Undissolved) — in general, 565, 570. not void for failure to obtain consent of parents, 733. license, 733. to comply with statutory regulations, 733. intermari-iage of relatives, 710. declared void at any time, 584 nullity decree not necessary, if void, 585. subsequent divorce does not invalidate, 579. a defense to divorce suit, 551. whether dower allowed on void marriage, 578. 1192 INDEX. Eeferences are to sections. VOID MARRIAGE (cod tinned) — void on account of prior marriage, 575-591. intermarriage of races, 720. marriage of guilty party after divorce, 588. marriage pending appeal, 135, 583a. on decree nisi, 583, 1031. on divorce a mensa, 583, 1031, on void divorce, 586, 1053. husband or wife presumed dead, 584. presumed divorced, 585. effect of nullity decree, 1033. effect of void marriage, common law, 590. civil law, 591. VOIDABLE MARRIAGES — in general, 569. statutes making void marriages voidable, 568. aflBrmance of, 569. impotence, 705. insanity, 673, want of age, 734. fraud, 603. duress, 633. must be annulled in direct proceeding, 569. during life-time of parties, 569. valid until disafiirmed, 569. children of, legitimate, 569. wife entitled to dower, 569. valid until annulled : for consanguinity, 710. for miscegenation, 730. for want of age, 734. effect of statute, 578. dower allowed on void marriage, 578. VOLUNTARY SEPARATION — as a cause for divorce, 381. VULGARITY — as an indignity, 390. w. WAGES — of husband, subject to attachment and garnishment, 988, WAIVER — of objections to indefinite pleading, 183. failure to appoint guardian, 738. INDEX. 1193 References are to elections. WANT OF AFFECTION — uot cruelty, 287. as evidence of adultery, 157. WANT OF AGE — in general, '7il. consent of parents, 733. affirming marriage, 723. how marriage disaffirmed, 724 statutes affecting the common-law age of consent, 735. WANT OF MENTAL CAPACITY (see Mental Incapacity). WASHINGTON — statutes relating to divorce, page 1049. domicile, page 1062. notice, page 1076. discretionary divorce in, 388. insanity a cause for divorce, 650. WASTING ESTATE, DRUNKENNESS AND — as a cause for divorce, 357. WATCHING WIFE — by husband, as connivance, 485. WEIGHT OF EVIDENCE (see New Trial). WEST VIRGINIA — statutes relating to divorce, page 1050. domicile, page 1063. notice, page 1076. ante-nuptial incontinence cause for divorce in, 380. WHIPPING WIFE — is cruelty, 366. husband has no right to, 293. WHITE PERSON — defined, 718. WIDOW — divorced wife cannot become, 1026. ■woman in void marriage cannot become, at common law, 568. WIDOWER — divorced husband is not, see Curtesy, 1030. WIFE — may acquire separate domicile if she has a cause for divorce, 40. or a decree of separation, 46. duty of, to cohabit, see Cohabitation. excused by cause for divorce, 63. excused by keeping lewd women in house, 76, 95. 119i INDEX. References are to sections. "WIFE (coDtinued) — duty of, follow husband to new domicile, 68. share fortunes of her husband, 66. to seek reconciliation, mot the same as husband's, 78. support children awarded to her on divorce, 981, 982, 983l cruelty by wife, 305-311. gross neglect of, a cause for divorce, 383. as cruelty, 310. right to sue for alimony without divorce, 1000-1003. although non-resident, 48. select new residence when deserted, 80. obtain divorce on cross-petition although non-resident, 47, 4S. liability to pay alimony, 904. remain in home after husband guilty of cause for divorce, 469. to custody of young children, 976. to visit relatives, 77. to receive visits of children by former marriage, 77. to recover advances to husband after desertion, 95. restraint of, when reasonable, 394 same efforts for reconciliation not required, 78. condonation not so readily presumed on account of, 469. connivance not so readily presumed, 489. delay of, excused by restraint, 516. not removed by statute relating to married women, 516. no right to whip wife, 393. to treat as servant, 396. to overwork, 397. to imprison, 101, 295. as a witness, 778. confidential communications to, 782. may testify in criminal proceedings against husband, 99, 783. as a mother, unfitness of, not cruelty, 311. physical condition of, considered in cruelty, 818. guilty, may receive alimony, 966. be awarded custody of children, 976. adultery of, as compared with husband's, 129. ci-uelty of, 305, 306. income of, estimating alimony, 913. poverty of, estimating alimony, 913. earnings in, estimating alimony, 913. domicile of, may be separate after she has cause for divorce, 25. property of, on divorce a mensa, 1032. nullity decree, 1023. absolute divorce, 1024, 1035, 1026. services of, liability for on annulment of marriage, 1033. INDEX. 1193 References are to sections. WIFE (continued) — divorced wife, as a creditor of husband, 938. marriage of, does not terminate alimony m gross, 933. death of, does not terminate alimony in gross, 932. misconduct of, immaterial, 933a, 934. alimony without divorce, 936. "WIFE'S SISTER, DECEASED — marriage of, 714. WILFUL, — meaning of, 56. cruelty must be, 319. accidental injury not cruelty, 319, 343. WILFUL AND CONTINUED DESERTION, 61. WILFUL AND MALICIOUS DESERTION, 61. WILFUL DESERTION — means without legal excuse, 68. WILFUL NEGLECT — as a cause for divorce, 374 WISCONSIN — statutes relating to divorce, page 10.50. domicile, page 1063 notice, page 1076. New York doctrine followed in, 29. desertion as a crime in, 100. injury to health not always a test of cruelty in, 285. alimony after divorce, 936. divorce from bed and board approved, 1022. WITHOUT CAUSE, DESERTION, 61. WITNESSES — husband and wife as, 778. necessity of corroboration, 779. what is sufficient corroboration, 780. confessions and admissions, 781. privileged communications, husband and wife, 782. physicians, etc., 783. opinion of, when admissible, 203. admitted on the ground of necessity, 303. as to adultery, 203. as to drunkenness, 358. detectives, 199. impeachment of, 199. paramour as witness, 194-198, 1196 INDEX. References are to sections. WITNESSES (continued) — prostitutes as witnesses, 200. pimps as witnesses, 201. liusband and wife as witnesses, 778. children as witnesses, 784 relatives and servants as witnesses,. 785. husband or wife of paramour, 198. wife may display marks of violence as evidence of cruelty, 343. WORDS AND PHRASES — Abandonment, 53. Ability, 371. Adultery, 135. Affinity, 710. Alimony, 900, 933, 961. Annulment of Marriage, 568. Cohabitation, 53. Collusion, 500. Condonation, 450. Conduct Endangering Life, 863. Conduct Rendering Cohabitation Unsafe, 263. Conduct Rendering Condition Intolerable, 363. Conduct Subversive of the Marriage Relation, 265. Confrontation, 188. Connivance, 47?5. Corporeal Imbecility, 691. Consanguinity, 710. Cruelty, 253, 258, 254. Cruel Treatment, 257. Cruel and Abusive Treatment, 258. Cruel and Inhuman treatment, 259. Debt, 937, 939. Delusion, 660. Desertion, 51. Divorce, 566. Domicile, 40. Drunkenness, 350, 353. Duress, 617. Endanger Life, Limb and Health as Cruelty, 255, 256, 263. Endanger Reason, 263. Extreme Cruelty, 252, 253. Extreme and Repeated Cruelty, 261. ' Fornication, 135. Habitual Drunkenness, 350. Impotence, 676, 691. INDEX. 1197 References are to sections. WORDS AND PHRASES (continued)— Indignities, 390. Indignities Rendering Condition Intolerable, 264, 390. Inhabitant, 41. Inhuman Treatment, 259. Injured Party, 432. Injury to Limb, 256. Levitical Degrees, 713, 714. Matrimonial Incapacity, 678. Mulatto, 717. Naturally Impotent, 676. Negro, 717, 718. Open Court, 800. Permanent Allowance, 900. Person of Color, 718. Physically Incapacitated, 677, Physically Incapable, 679. Prostitute Defined, 200. Reasonable Cause, 95-133, Recrimination, 425. Res Gestce, 109. SEBvitia, 254 Set Apart, 963. Status, 2. Such Order, 962. SufiBcient Pecuniary Ability, 372. Unsafe, 268, 389. Utter, 59. Utterly Desert, 59. Wasting Estate, 357. White Person, 718. Wilful, 56. Wilful and Malicious, 56, 58. WRIT NE EXEAT REGNO, 940. WRIT OF RESTITUTION (see Restitutiok of CONJtraAL RIGHTS, 101). WYOMING — statute relating to divorce, page 1051. domicile, page 1063. notice, page 1076.