OJnrnpU ICam Bc\^aa\ library Cornell University Library KF 535.B88D5 A digest of statutes, decisions and case 3 1924 018 828 735 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/cu31924018828735 DIGEST STATUTES, DECISIONS ATO CASES THROUGHOUT THE UNITED STATES UPON THE SUBJECTS OP DIVORCE AND ALIMONY. SUPFLEUENTED B7 A BRIEF OF LAW AND FACT OF ALL CASES IN DIVORCE DECIDED IN THE SUPREME COURT OF PENNSYLVANIA, SYNOPSIS OP THE ACTS OF ASSEMBLY AND THE RULES OF PRACTICE IN DIVORCE CASES IN PENNSYLVANIA. BY WM. HAEDOASTLE BEOWI^E, Em.^-^ /-> OF THE PHILADELPHIA BAB. '^ v=*«<..<> ^ Ao » v^/Jselo^ '^ PHILADELPHIA: KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS. 1872. 115^/^^^ Entered according to Act of Congress, in the year 1872, by WM. HARDCASTLE BROWNE, in the Office of the Librarian of Congress, at Washington. PHILADELPHIA : COLLINS, PRINTER, 106 JAYNE STREET. PREFACE. No branch of legal practice has attained such rapid growth or awakened proportionate inquiry and interest within the past few years, as that which refers to the severance of the marital relation, and yet no legal subject is equally involved in obscurity, from a lack of text books and classified authorities. Divorce in America is solely the offspring of statutes, and hence the common law has but slight bearing upon the subject, while 'the ecclesiastical law, in its application to divorce, has been so altered and modified in the several States by acts of assembly, as to be almost undistinguishable, except in its funda- mental principles. It has been the aim of the writer, in view of the urgent de- mand of the profession for some digest on divorce, to prepare a compilation of statutes, decisions and cases upon the subject, which should be general and comprehensive in its applicability to the several States, and yet should include in concise form, important points in divorce law, which mayt have exclusive reference to a particular State. The first section of the following book is an analytical digest of the statutes of the several States upon divorce, embracing the causes for which a divorce will be decreed, and the mode of proceeding therein. The States are arranged in alphabetical order, and the causes of divorce in numerical order, under the respective heads of total and partial divorces. The second section is a digest of important decisions, rendered in the appellate courts of the dififerent States, in matters apper- taining to divorce, which judicial dicta are classified under the respective heads of Adultery, Cruelty, Desertion, Other Causes IV PREFACE. of Divorce, Jurisdiction and Domicile, Petition or Libel, Practice and Pleading, Evidence, Property of the Parties, Custody of the Children, Effect of Decrees granted in other States, Position of the parties after Divorce, and Questions of Alimony. These syllabi are arranged chronologically, and each division has a table of State reference prefixed, and a table of division reference affixed thereto. The third section is a complete index of all cases in divorce mentioned in the reports of the appellate courts of every State. This index is exhaustive and thorough, and is arranged alpha- betically as to States, chronologically as to the reports, and is further subdivided into the respective heads specified in the preceding section, together with additional divisions in several of the larger States. The fourth section is a brief of fact and law of all cases pub- lished in the State reports of Pennsylvania, the decisions of whose courts are in high repute elsewhere, under the two divi- sions of divorces a vinculo matrimonii and divorces a mensa et thoro. The fifth section is a synopsis of the Pennsylvania acts of assembly upon the subject of divorce, and the sixth and last section contains the rules of practice in the same State. The work terminates with the Levitical table of consanguinity and affinity, and with the ecclesiastical law of England upon the subject of divorce. Philadelphia, June 1, 1873. ACKNOWLEDGMENT. The author herewith returns his grateful acknowledgments to the follow- ing prominent members of the bar throughout the United States, for the information they have furnished him in relation to the statutes bearing upon divorce in their respective States, and also to personal friends in the profes- sion in Boston, New York, Baltimore, Chicago, and Philadelphia, who have kindly aided him with suggestions and material, which have proved of essen- tial service in the preparation of the work. John Nbal & Son, Eastman, Page & Albin, Daniel Egberts, Thomas C. Gkeen, G. D. W. Veoom, M. B. Tatloe, Anthony Higgins, EOWLAND Oox, J. N. GOKBON, W. P. & D. L. Hubbard, Hatne & Son, Tompkins & Garrard, A. DOGGET, Seals, Wood & Eoquemae, W. W. Edwards, Mills & Tevis, Watkins & Eose, Bishop & Adams, Buchanan, Gooding & Buchanan, Duke & Eichards, J. S. Garland, Harnbeeger & House, Portland, Maine. Concord, N. H. Burlington, Vermont. Providence, E. I. Trenton, N. J. Camden, N. J. Wilmington, Delaware. Washington, D. C. Lynchburg, Va. Wheeling, W. Va. Charleston, S. C. Savannah, Ga. Jacksonville, Pla. Eufaula, Ala. New Orleans, La. Galveston, Texas. Little Eock, Arkansas. Cleveland, Ohio. Evansville, Indiana. Louisville, Kentucky. St. Louis, Mo. Clarksville, Tenn. VI ACKNOWLEDGMENT. Cornell & Beo., James McAlistee, E. F. Oeowell, Waed & Palmeb, Savage & Mandeeson, L. B. Fkance, MaYHEW & McMtJETET, 0. B. Valentine, Mitchell & Dolph, Campbell, Fox & Campbell, Iowa City, Iowa. Milwaukee, Wis. St. Paul, Minn. Detroit, Mich. Omaha, Neb. Denver, Cal. Deer Lodge City, Montana. Elk Point, Dakota. Portland, Oregon. San Francisco, Cal. TABLE OF CONTENTS. I. Digest op Statutes upon Divorce II. Digest of Decisions . 1. Adultery 2. Cruelty .... 3. Desertion 4. Other Causes of Divorce 5. Jurisdiction and Domicile 6. Petition or Libel . T. Practice and Pleading . 8. Evidence 9. Property 10. Custody of Children . 11. Decrees of other States 12. Position of the Parties after Divorce 13. Alimony III. Index of Divorce Cases in State Reports IV. Brief of Pennsylvania Cases . 1. Divorces a vinculo matrimonii 2. Divorces a mensa et thoro . V. Synopsis of Pennsylvania Acts of Assembly VI. Rules of Practice in Pennsylvania 1. Divorces a vinculo matrimonii 2. Divorces a mensa et thoro . Table of Consanguinity and Affinity APPENDIX. Ecclesiastical Law of Divorce PAGE 1 61 63 76 94 109 119 136 147 171 185 204 213 219 225 267 327 327 352 365 378 373 383 385 386 LAW OF DIYORCE. I. DIGEST or STATUTES, CAUSES OF DIVOECE. 1. Physical incapacity at the time of marriage. 2. Adultery. 3. Desertion during the two years immediately preceding the filing of the petition. 4. Imprisonment in any State penitentiary for two years, the sentence being seven years or longer. 5. Commission of the crime against nature with man or beast before or after marriage. 6. Pregnancy at marriage by another man without her husband's knowledge. 7. Commission by the husband of actual violence on the wife's person, endangering her life thereby, or where there is reasonable apprehension of such violence. 8. Habitual drunkenness. If the defendant be a resident, the bill must be filed in the Court of Chancery in the county where the defendant resides. The defendant's answer need not be under oath. If the defendant be a non-resident, the bill must be filed in the county where the plaintiff resides, and the plaintiff need only prove one year's recent residence in the State. On the ground of desertion, however, the plaintiff must have resided during the past three years in the State. 1 I LAW OF DIVORCE. If the defendant be a non-resident, there must be publica- tion, as in other chancery suits. Pendente lite, alimony is granted. After the divorce, if the wife have no estate, the court may grant allowance, which is more liberal if the wife have been the complainant. A divorce for the adultery of the wife bars her dower. The chancellor at his discretion may decree a divorce from bed and board. Arkansas* CAUSES OF DIVORCE. 1. Impotency at the date of marriage and still existing. 2. "Wilful desertion for one year without reasonable cause. 3. Bigamy. 4. Conviction of felony or other infamous crime. 5. Habitual drunkenness of either for one year. 6. Cruel and barbarous treatment, endangering the life of either. 7. Such indignities offered to the person as shall render the condition of the party intolerable. 8. Adultery. The Circuit Court of the county, sitting as a Court of Chancery, has jurisdiction. The complainant must have resided within the State one year next before the filing of the bill, unless the offence was committed in the State, or while one or both the parties resided in the State. The case should be brought in the^ county where the com- plainant resides, and process may be directed to any county in the State where the defendant may then reside. The bill must have an affidavit annexed, but the answer need not be under oath. After the decree, the court will grant an order for alimony CALIFORNIA. 3 to the wife and maintenance for the children. Where the wife is the complainant, the court will force the husband to give security for alimony, and execution will issue for col- lecting it. The court may enforce payment by sequestration. Alimony is often granted "pendente lite. Alterations may be made as to the amount of it, both before and after the decree. If the wife obtain the divorce, all the property which shall have come to the husband by reason of the marriage, undisposed of at the time of filing the bill, shall revert to the wife. The legislature cannot grant a decree of divorce. CAUSES OP DIVORCE. 1. Impotence at marriage, if the application be made within two years. 2. Wliere the female at marriage was under fourteen years of age, and the alleged marriage was without the consent of her parents or guardian and not subsequently ratified by her. 3. Adultery, unless collusion or condonation and subse- quent cohabitation. 4. Extreme cruelty. 5. Habitual intemperance. 6. "Wilful neglect on the part of the husband during two years to provide his wife with the necessaries of life, he having the ability to do so, or failing so to do by reason of his idleness, profligacy, or dissipation. 7. "Wilful desertion for two years. 8. 'Where consent wa^ obtained by force or fraud. 9. Conviction after marriage of either party for felony. 4 LAW OF DIVORCE. Divorces from bed and board are granted for the same causes. The District Courts have jurisdiction. The petitioner must have resided in the State six months, prior to filing the libel. The court may pendente lite or after decree make orders for the support of the vrife and the maintenance and educa- tion of the children, and may annul or modify such orders at any time. 'Eo divorce v?ill be granted on account of the default of the defendant nor upon the admission of the defendant, but the court will hear proof, w^hich if taken before a referee shall be upon written questions and answers, and free from all legal exceptions as to its competency, admissibility, and sufficiency. Either party may be a witness. Upon the dissolution of the marriage the common pro- perty shall be equally divided between the parties, and the court shall make an order therefor. CAUSES OP DIVOECB. 1. Impotency. 2. Bigamy. 3. Adultery. 4. Desertion for one year without reasonable cause; 5. Wilful absence of either party from the Territory without the intention of returning. 6. Habitual drunkenness for two years. 7. Extreme cruelty. 8. Conviction of felony or other infamous crime. A RESIDENCE of One year is required, unless the offence or injury complained of was committed within 'the Territory, or while one or both of the parties resided in the Territory. CONNECTICUT. & The statute is similar to that of Illinois. The only divorce recognized is the one a vinculo matri- monii. Proceedings are commenced by bill in the chancery side of the court. CAUSES OP DIVORCE. 1. Consanguinity and affinity. 2. Bigamy. 3. Impotence. 4. Adultery. 5. Wilful desertion for three years, with total neglect of duty. 6. Absence for seven years, during which time the party has not been heard from. . 7. Fraudulent contract. 8. Intolerable cruelty. 9. Habitual intemperance. The divorces granted are a vinculo matrimonii, and are subject to the jurisdiction of the superior courts. The petitioner must have resided three years in the State prior to filing the petition, unless the cause of action arose subsequent to his residence in the State. Notice of the petition must be given to the defendant twelve days before the sitting of the court. If there be no proof of actual notice to the respondent, the court will con- tinue the case. If the respondent be out of the State, and cannot be per- sonally served without great expense, the pendency of the petition shall be published in two or more public newspapers of the State for six weeks successively, immediately after, the rising of the court. LAW OF DIVOECE. If the divorce be for the husband's default, the court has the power to assign to the wife a part of the husband's estate, not exceeding the value of one-third part thereof. CAUSES OF DIVOECE. 1. Impotence at marriage. 2. Where the female at marriage was under the age of fourteen, and the consent of her parents or guardian was not obtained, nor was there subsequent ratification on her part. 3. Adultery, except where collusion or voluntary cohabi- tation, after knowledge by the innocent party, of the offence. 4. Extreme cruelty, by inflicting upon 'the other party grievous bodily or mental suffering. 5. Habitual intemperance. 6. "Wilful desertion for two years. 7. Where the husband, having the ability to provide for his wife, fails to do so by reason of his idleness. 8. Profligacy or dissipation. 9. Where from threatening words the weaker party feels in danger of bodily injury. 10. Where consent was obtained by force, fraud, intimi- dation, deception or influence of stronger minds. 11. Conviction for felony after marriage. 12. Bigamy. 13. Pregnancy at marriage by other than her husband, without his knowledge. A Divorce will also be granted where the other party has procured a divorce in another Territory or State. DAKOTA. 7 The wife may apply for alimony alone for the follow- ing causes : — 1. Adultery. 2. Gross neglect of duty. 3. Abandonment of the wife without good cause. 4. "Where there is a separation in consequence of ill treat- ment on the part of the husband. 5. Habitual drunkenness. 6. Confinement for felony. The District Courts have jurisdiction. Either party may be a witness on the trial in a case of divorce, but their testimony must be corroborated by other evidence. Cohabitation and reputation are sufficient proof of mar- riage. Where the husband has been at fault, the wife, after the divorce, shall be restored to her real estate not previously disposed of, and to her maiden name, if she desire it, and such alimony out of her husband's estate as the court shall think reasonable, payable either in gross or in instalments as the court shall decree, and if she survive her husband she is entitled to her dower.. Where the wife has been at fault, she is debarred from dower in her husband's lands, but the court will restore her all of her real estate not previously disposed of, and such share of her husband's property as it may deem reasonable and proper. The application should be made in the county where the petitioner in good faith resides, having been a resident thereof for at least ninety days before the filing of the petition. Any married woman may file her petition, setting forth that her husband from habitual intemperance or other cause is about to waste and squander the property to which she is entitled by her own right, or is proceeding fraudulently to convert the same to his own use for the purpose of depriving her of the benefit thereof, and the court upon hearing may enjoin the husband from disposing of or interfering with » LAW OP DIVORCE. sucH property, and may appoint a receiver to manage the same. "Witnesses resident in the county are examined in open court, otherwise by depositions. If the defendant cannot be served with notice, publication thereof must be made in a newspaper in the Territory for three consecutive weeks, and a copy of the notice be mailed to the defendant if his address be known or can readily be ascertained by the petitioner. Appeals may be taken to the Supreme Court. CAUSES OP DIVOECE. 1. Adultery of the wife. 2. Impotency at marriage. For the above causes a total divorce will be granted. For the following causes a total divorce or one only from bed and board will be granted, at the discretion of the court : — 3. Adultery of the husband. 4. Extreme cruelty. 5. Procurement of the marriage by force or fraud. 6. Ifon-age, the husband being under sixteen, or the wife being under fourteen, at the time of marriage, and no subse- quent ratification. 7. "Wilful abandonment of either party by the other for three years. 8. Conviction after marriage of a felony, deemed such by the laws of this State, whether the crime have been com- mitted here or elsewhere, or perpetrated before or after marriage. 9. Habitual gross drunkenness for three years, contracted after marriage. DELAWARE. 9 10. "Wilful neglect on the part of the husband for three years to provide for his wife the common necessaries of life. No divorce will be decreed unless the parties have lived together in the State, nor for any cause which occurred out of the State, unless the parties had cohabited here before, or one of them at the time was living in the State. The court may affirm the validity of a disputed marriage. The summons should be served upon the defendant one month before the return day. If service cannot be made, an alias summons should be issued to the next term, which the sheriff shall publish for three months in one. or more newspapers, and the case then proceeds ex parte. , The court may grant alimony pendente lite, and may pre- vent the husband from imposing restraint upon the wife. Confessions of the parties are not taken in evidence. A divorce for adultery is not granted where there has been condonation of the offence with subsequent cohabita- tion, or in cases where the plaintiff was' equally guilty, or allowed his wife to prostitute herself. The party guilty of adultery must not marry the accom- plice. If the wife have been guilty of adultery, she forfeits any estate settled upon her in lieu of dower. If the divorce have been decreed for the husband's fault, the wife has restored to her all her real estate, and the court allows her part of her husband's real and personal estate. If for the fault of the wife, the court restores the whole or part of her real estate, as it deems reasonable. After such allowance, the court may appoint commissioners, who ' may issue writs of possession, as in case of land sold by execution. In marriages void ab initio, except from insanity, the issue is illegitimate, except in cases where a second marriage is contracted, in good faith, while a former husband or wife is living, though believed to be dead. If a citizen go to another State to obtain a divorce for causes not sanctioned here, such divorce is void in this State. 10 LAW OP DIVORCE. In addition to the causes of divorce v^liich are sufficient in most of the States, an act passed in 1870 gives the fol- lowing causes: — 1. Uninterrupted desertion for tvpo years. 2. Cruelty, endangering life or health. 3. Three years habitual drunkenness. "Where the cause of action arose out of the District, two years' residence within the same is necessary to give the court jurisdiction. Proceedings are by bill, reference, &c., and no decree is granted without proof. CAUSES OF DIVOBCE. 1. Consanguinity or affinity. 2. Natural impotency. 3. Adultery. 4. Former husband or wife living at the date of the second marriage. 5. Extreme cruelty of either party towards the other. 6. Habitual indulgence of violent and ungovernable temper. 7. Habitual intemperance. 8. Wilful, obstinate, and continued desertion for one year. A RESIDENCE of two years in the State immediately prior to the application is required. The Circuit Courts have jurisdiction. GEORGIA, ^ 11 Suits mxist be brought by bill and conducted as in other equity cases. The wife may sue in her own name. The answer of the defendant need not be under oath. The mode of procedure has been completely changed in this State within the past few years, and is now substantially the same as that adopted in JSTew York {quod vide). The wife may apply to the court for alimony, where there has been desertion on the part of the husband for one year, or where he has lived in open adultery for three months, and also in eases of cruel and barbarous treatment inflicted by him. All divorces granted here are total. (Georgia. CAUSES OF DIVORCE. 1. Consanguinity and affinity. 2. Mental incapacity at the time of marriage. 3. Impotency. 4. Force or fraud. 5. Pregnancy of the wife at marriage without her hus- band's knowledge. 6. Adultery. 7. Wilful desertion for three years. 8. Conviction for two years. 9. Cruel treatment. 10. Habitual intoxication. The Superior Courts have jurisdiction. Divorces are total or merely from bed and board. In the former case the concurrent verdict of two special juries is necessary. In the latter case one jury suffices. "When the application for the divorce is made, the pe- titioner must add schedules of the property owned by the parties. 12 ^ LAW OF mVOKCE. CAUSES OF DrVOROB. 1. Impotency, dating from marriage and still existing. 2. Bigamy. 3. Adultery. 4. Wilful desertion for two years. 5. Extreme and repeated cruelty. 6. Plabitual drunkenness for two years. 7. Felony or other infamous crime. 8. For any other causes which the court at its discretion may deem sufficient, the court having the same discretion- ary power as in other chancery cases. The Circuit Courts sitting as Courts of Chancery have iurisdiction, and the. process, practice, and proceedings are conducted as in other chancery cases. The action must be brought in the county where the complainant resides, and the process may be directed to any county in the State. The complainant must have resided in the State for one year last preceding the filing of the petition, unless the offence complained of was committed in the State, or while one or both parties resided in the State. If the defendant appear and deny the charges, the case shall be tried by a jury; but if the bill be taken pro con- fesso, the court may proceed by examining witnesses in open court. In cases where the wife is the complainant,- the court may order the husband to give security for alimony, the amount of which may be altered from time to time at the discretion of the court. Sometimes such a decree is made a lien upon lands. If, as complainant, the wife prove her poverty, the court releases her from all costs and assigns her counsel. INDIANA. 13 She can also regain her maiden name, if she applied for it in the original hill. After the divorce, the court may decree alimony for the maintenance of the wife and children. Untriana. CAUSES or DIVORCE. 1. Consanguinity or affinity. 2. Difference of color. 3. Bigamy, where the recent marriage was solemnized in the State. In the above cases the marriage is void without legal process, and the issue are illegitimate, except in the last instance, where the second marriage was solemnized under a reasonable belief that the first husband or wife was dead. 4. Adultery. 5. Impotency. 6. Abandonment for one year. 7. Cruel treatment of either party by the other. 8. Habitual drunkenness of either.- 9. Failure on the part of the husband to make a reason- able provision for his family. 10. Conviction after marriage, in any county", of an in- famous crime. 11. For any other causes the court at its discretion may deem sufficient. In cases of adultery the divorce is refused if the offence have been committed with the connivance of the complain- ant, or if there have ■ been voluntary cohabitation after knowledge of the fact, or if complainant failed to file the 14 LAW OF DIVORCE. petition within two years after the discovery of the offence, or if the complainant he proven guilty of a similar crime. The Circuit Courts and Courts of Common Pleas have concurrent jurisdiction in divorce cases. The action should be brought in the county where the petitioner resides at the time of filing the petition^ com- plainant having been a resident of the State for one year last preceding. If the defendant reside within the State, personal service of the summons should be made, or be left at the residence. If by the affidavit of a disinterested person, or by official return, there be proof of defendant's non-residence within the State, the Clerk of the Court must give notice of such petition, by publication for three successive weeks in some weekly newspaper of general circulation, printed within the county. In such case no summons need be issued. The case stands for trial at the first term after personal service on the defendant of the summons, ten days having intervened, or, in the event of publication, after an interval of thirty days. If the petitioner require it, the defendant must answer under oath. If undefended, the prosecuting attorney must resist it. The defendant may also file a cross petition for a divorce- The witnesses may be examined in open court, or their depositions may be taken, at the option of the party offer- ing the testimony. The petition may be filed in the wife's own name, and her good character may be established by proof that for two years previous thereto she bore a fair reputation for chastity and virtue. Interlocutory orders may be granted by the court as to the disposition of property, the care of children, and the wife's expenses •pendente lite. These orders may be enforced by attachment. If the divorce have been granted owing to the misconduct of the husband, the wife has the same rights in her real estate as if her husband were dead. Vice versa as to hus- band, in case of the wife's misconduct. IOWA. 15 The final decree of the court should make provision for the custody and support of the minor children. A decree of alimony to the wife should be a sum in gross, and not payable in annual or other instalments, but the court may give time wherein to pay it, security being given therefor. Parties against whom a divorce has been decreed without other notice than by newspaper publication may have the decree opened as to the care and support of minor children, and may also within two years after the decree have it opened as to alimony and disposition of property, except where such property is owned by bond fide purchasers. CAUSES OF DIVORCE. 1. Impotency at marriage. 2. Bigamy. 3. Adultery. 4. Wilful desertion for two years. 5. Conviction of felony after marriage. 6. Habitual drunkenness after marriage. 7. Inhuman treatment, endangering life. The District Court of the county where the plaintiff resides has jurisdiction. The Act of 1870 extends the juris- diction to the county also where the defendant resides. The plaintiff must have resided in the State for six months immediately preceding the filing of the petition. The petition must be sworn to. If the defendant does not appear and answer, the court, if satisfied the complainant is the injured party, may decree a dissolution of the marriage. If the defendant can be found, the court may, in its discretion, bring him in by attachment and force him to answer. 16 LAW OP DIVORCE. After the divorce be decreed, the court may make orders as to the children and property of the parties and the main- tenance of the wife. CAUSES OF DIVOEOE. 1. Bigamy. 2. Abandonment for one year. 3. Adultery. 4. Impotency. 5. Pregnancy by another man at the time of marriage. 6. Extreme cruelty. 7. Fraudulent contract. 8. Habitual drunkenness, 9. Gross neglect of duty. 10. Conviction of felony and imprisonment in the peni- tentiary. The District Courts have jurisdiction. The plaintiff must have resided in the State for one year immediately preceding the filing of the petition, and have been a resident of the county at the time the petition was filed. The petition should have an affidavit annexed. If the summons be not served, publication should be made. A copy of the notice of publication and the petition must, within three days after the first publication made, be en- closed in an envelope addressed to the defendant at his or her place of residence, and then be mailed, unless the plain- tiff swears such residence is unknown and cannot be readily ascertained. The defendant in the answer may allege a cause of divorce on his or her side, and may have the same relief as the plaintiff. KENTUCKY. 17 If there be equal wrong, the court may at discretion grant a divorce to either. Pendente lite, the court by attachment may enforce an order to restrain the disposition of property of either party. The court may also decree as to the custody of the chil- dren, and the maintenance of the wife, together with her costs of suit. After the decree, provision may be made for the minor children. If the husband be at fault, the court may adjudge to the wife a reasonable sum for alimony. All claim to property is barred by a divorce. CAUSES OF DIVOKCE. 1. Impotency or malformation, such as prevents sexual intercourse. 2. Where the parties have lived separate and without cohabitation for five consecutive years preceding the appli- cation, the complainant having resided in the State during the entire time. In the above cases either party may apply. 3. Abandonment in this State for one year. 4. Abandonment and living in adultery for six months. 5. Condemnation for felony here or elsewhere. 6. Concealment from the other party of any loathsome disease existing at the time of marriage, or the contracting of such disease afterwards. 7. Force, duress, or fraud in obtaining the marriage. 8. Union with any religious society whose creed and rules require renunciation of the m'arriage covenant or forbid the husband and wife from cohabiting. 2 18 LAW OF DIVORCE. 9. Confirmed habits of drunkenness of the husband for one year, accompanied with a wasting of his estate or his life, health, or labor, without any suitable provision for the maintenance of his wife and children. 10. Habitual behavior towards the wife by the husband for at least six months in such cruel and inhuman manner as to indicate his settled aversion to her, and his intention to destroy permanently her peace and happiness. 11. Such cruel beating or injury or attempts at injury by the husband as indicate an outrageous and ungovernable temper in him, resulting in probable danger to her, or great bodily injury, should she remain with him. 12. Pregnancy of wife at marriage by another man with- out the husband's knowledge. 13. Adultery committed by the wife, or such lewd, lasci- vious behavior on her part as proves her to be unchaste, without actual proof of a specific act of adultery. 14. Lunacy and unsound mind of three years' standing, where it was the result of intemperance or the result of a hereditary taint of insanity, which was concealed at the time of marriage. Divorces from bed and board may also be allowed for all the above causes, or for any other cause the court at its dis- cretion may deem sufiicient, and, as to property subsequently acquired, are like total divorces, except they do not bar curtesy, dower or distributive right. The Chancery Courts have jurisdiction. The petitioner must have resided in the State for one year immediately preceding the action. The cause of divorce must have occurred or existed in this State, or, if out of the State, it must either have been a legal cause of divorce in the State where it occurred or existed, or the plaintiff's residence at the time must have been in this State.' The cause of divorce must have' existed within five years next before the suit. LOUISIANA. 19 The suit must be brought in the county where the wife resides, if she lives in the State, aliter, in the county where the husband resides. The defendant need not answer under oath. The attorney for the commonwealth must resist applica- tions for divorce. If he defeat the divorce, his fee must be paid by the husband. • Every decree of divorce may be revoked at any time on the joint application of the parties, but no divorce there- after shall be granted for the same or a similar cause. Where a defendant has been constructively summoned and did not appear, against whom judgment has been ren- dered, he is allowed to come into court within five years and have a new trial. This privilege is denied where the defendant had been served with a copy of the petition and summons sixty days before the term at which the judgment was rendered. !N"o decree of divorce shall permit either party to marry again until one year after final decree, except where allowed in favor of both parties, nor shall the oftending, party marry again until five years thereafter. An earlier marriage ren- ders one liable for bigamy. Upon the decree, each party recovers his or her property not disposed of at the commencement of the suit, as either obtained from the other before or during marriage. If the wife have not sufficient estate, the court may decree her part of her husband's. A jury shall not be used in any case, either for divorce or alimony. The legislature has the power to grant a divorce. •CAUSES OP DIVOKOE. 1. Adultery of the wife. 2. Adultery of the husband, where he has kept his con- 20 LAW OF DIVORCE. cubine in the common dwelling, or openly and publicly in any other, 3. Excesses or cruel treatment of either party, rendering the life of the other insupportable. 4. Habitual intemperance. 5. Condemnation to an ignominious punishment, or where the party being charged with an infamous oftence flies from justice. 6. Desertion for five years, where the party absent has ' been summoned to return by order of a competent court, and he refuses or neglects to do so. In this case, a decree from bed and board must first be obtained. One year later, a decree for a total divorce may be applied for. In all the above cases except the 5th, a total divorce may be obtained in the first instance. If there have been a reconciliation, the action must be brought for causes transpiring since. In a divorce for adultery, the guilty party cannot marry the accomplice. If the party charged with an infamous crime has fled, an attorney will be appointed to represent him. The District Courts throughout the State, with the Parish Court of New Orleans, have jurisdiction. A right of appeal exists to the Supreme Court. The petitioner, after the decree, takes the children, unless the c6urt order otherwise. In a separation from bed and board, the children have the same rights as if no separation ha,d occurred. The court may decree alimony to the wife after the di- vorce, which decree is revocable. It must not exceed one third of the income of the husband's estate. MAINE. 21 CAUSES OF DIVORCE. 1. Consanguinity and affinity. 2. Insanity and idiocy. 3. Bigamy. 4. Sentence of imprisonment for life. 5. Intermarriage of a white person with a negro, mulatto, or an Indian. In the above cases, the marriage is absolutely void. 6. Where the judge, in the exercise of a sound discre- tion, deems it reasonable and proper, conducive to domestic harmony, and consistent with the peace and morality of society. The Supreme Judicial Court has jurisdiction. The libel must be filed in the county where the peti- tioner resides, the parties having either been married in the State, or having cohabited here after marriage. The libel must be served on the defendant fourteen days before the session of the court to which it is re- turned, or it may be presented to the court during the session in any county, and the court shall order notice returnable in the county where the libellant resides. Divorces from bed and board are granted for — 1. Extreme cruelty of either party. 2. Where the husband, having sufficient ability, cruelly neglects to provide for his wife. Pendente lite, the wife's expenses should be paid by the husband, who must give alimony to maintain her and her children. The court may also prohibit the husband from imposing any restraint upon the wife. 22 LAW OF DIVORCE. If the divorce be granted for impotence, the wife's real estate shall be restored to her, and the court may order the husband to return all or part of her personal estate, the amount and nature of which he may be forced to disclose under oath. If the husband be at fault, the wife shall have dower in his real estate, to be recovered as if he were dead. The court may also decree alimony to the wife, or a spe- cific sum in gross. If the wife have been guilty of adultery, the husband, after divorce, holds her personal estate forever, and her real estate during life, if issue born alive, otherwise he holds for her life only. The court may, however, allow the wife sufficient for her support. The wife, upon petition, may pray for a lien on the hus- band's real estate. If issue be living or a partial divorce be decreed for the cruelty of the wife, the court exercises discretion as to ali- mony and the personal estate. The validity of a marriage may be affirmed. In cases of non-age, idiocy, or insanity, the children are legitimate. Also in cases where a second marriage occurs during the lifetime of a former husband or wife, if such marriage be bondjide under the belief that the absent party is dead. Within three years after the decree of divorce, the court, on petition of the party aggrieved, may grant a new trial, unless there has been an intermediate marriage. If the parties leave the State to obtain a divorce elsewhere for causes not legal in this State, such divorce is void here. CAUSES OF DIVORCE. 1. Impolency at marriage. 2. Consanguinity or affinity. 3. Adultery. MASSACHUSETTS. 23 4. Abandonment for three years, deliberate and final, with no reasonable expectation of reconciliation. 5. Carnal intercourse by the wife before marriage, with another man than her husband, the same being unknown to her husband at the time of the marriage. Divorces from bed and board are decreed for — 1. Cruel treatment. 2. Excessively vicious conduct. 3. Abandonment and desertion. 4. For all the above causes for which a total divorce would be granted. Courts of Equity have jurisdiction. The bill is filed in the county where either party resides. Proceed by summons and procure an answer as in other chancery cases, and, where a bill in chancery would be taken ■pro confesso, the court in a bill for divorce should order a commission to take evidence ex 'parte. The applicant must have resided two years last past in the State, if the cause for divorce occurred out of the State. A total divorce is not prevented by a prior partial divorce. The court awards the wife her property as it existed at the time of her marriage, or the value of the same, having regard, however, to the condition of the husband at the time of granting the divorce. The court also directs as to the care and support of the children of the parties. |W;assacl)usetts, CAUSES OF DIVOEOE. 1. Consanguinity and affinity. 2. Bigamy. 3. Insanity or idiocy. 24 LAW OF DIVORCE. 4. Marriage under the age of consent, witli no subsequent cohabitation. In the above cases, divorce by legal process is un- necessary. 5'. Fraud or other causes of nullity. Proof being ad- duced, the marriage will be declared void, even if solem- nized out of the State, if the libellant's domicile was within the State when the marriage took place or when the libel was filed. 6. Impotency. 7. Adultery. 8. Sentence to hard labor in the State prison, or in a jail or house of correction for five years or longer. 9. Desertion for five consecutive years. If the libel be filed by the party who deserted, proof must be given that the desertion was caused by the ex- treme cruelty of the other party, or by the gross or wanton and cruel neglect of the husband to provide for the wife. No libel shall be defeated by the temporary return of the deserting party, unless bond fide. 10. Separation by either from the other without consent, and connection with a religious sect or society professing to believe the relation of husband and wife unlawful; pro- vided the offending party has continued in such sect three years, refusing during that period to cohabit with the in- nocent party, who is not connected therewith. Divorces from bed and board are decreed for— 1. Extreme cruelty or abusive treatment by either. 2. Utter desertion. 3. Gross and confirmed habits of intoxicq-tion contracted after marriage. 4. Gross or wanton and cruel refusal or neglect of the husband to provide suitable maintenance for the wife according to his ability. MASSACHUSETTS. 25 If the parties live apart for the succeeding five years after a partial divorce has been decreed, a total divorce will be decreed upon the petition of the party who obtained the partial divorce. Under similar circumstances, after ten consecutive years have elapsed since the decree of partial divorce, either party may upon petition obtain a divorce a vinculo. If the libellant have resided in the State for five years last past, a divorce may be decreed for any cause allowed by law, whether the cause occurred here or elsewhere, unless the libellant move into the State for the purpose of obtain- ing the divorce. Otherwise no divorce will be decreed, unless the parties have lived together in this State, or, if the causes occurred elsewhere, the parties have resided here prior thereto, and one has resided here during the time the cause existed. The Supreme Judicial Court held for the county in which one of the parties lives has jurisdiction. If the libellant have left the county in which the parties have lived to- gether, the adverse party still residing therein, the libel shall be heard in the court of that county. Either party may demand a jury trial, conducted like suits at common law. The libel should be signed, not sworn to, by the libellant, unless the libellant be of unsound mind or under legal age, when the signature of the parent, guardian, or next friend should be afiixed. If the defendant reside in the State, the summons should be served upon him personally at the dwelling, fourteen days before the sitting of the court. If left at the dwelling, proof must be given that the defendant called at such place afterwards. If the defendant reside beyond the State, the court directs publication in one or more newspapers. Pendente lite, the court may require the husband to pay into court a sufficient amount to enable the wife to conduct the suit. She is also entitled to alimony, a decree for which may be enforced in the same manner as an equity decree. The court may also order an attachment to issue upon the husband's property. 26 LAW OF DIVORCE. A divorce from bed and board does not bar the wife's dower. If the divorce be decreed on account of the adultery of the husband, or owing to a sentence of confinement with hard labor, the wife is entitled to dower in her husband's lands in the same manner as if he were dead. If the divorce be decreed for the ^dultery of the wife, the husband obtains her personal estate absolutely, and her real estate during their mutual lives. If he survive her, with issue alive, he retains possession as tenant by the curtesy. The court may decree a portion of the income therefrom to the wife for her support. In all other cases the wife, after the divorce, obtains all her real estate, as if her husband were dead, and the court at its option may decree a return to her of the whole or part of her personal property in her husband's hands, and ap- point a trustee to take charge of it. The husband may be forced to disclose under oath what personal estate has come to him by reason of the marriage. The innocent party may marry again. The guilty party may also do so by leave of court, having first filed a petition setting forth residence in the State at the date of the decree. An exception is made in cases of adultery. "When an inhabitant of this State has gone elsewhere to obtain a divorce for any cause occurring here, while the parties were resident here, or for any cause not authorized by the laws of this State, a divorce so obtained has no validity here. In all other cases divorces decreed elsewhere are in force here. If the marriage have been dissolved on account of a former husband or wife living, and it appear that the second marriage was consummated with the full belief of the death of the absent one, the issue of such second marriage shall be declared legitimate. Infants of divorced persons, natives of the State, if of suitable age, shall not be removed therefrom without their own consent. If very young, the consent of both parents must be obtained, unless the court order otherwise. MICHIGAN. 27 CAUSES OF DIVORCE . 1. Consanguinity and affinity. 2. Bigamy. 3. Marriage under the age of legal consent, without subsequent cohabitation. 4. Insanity and idiocy at marriage. 5. Force or fraud in consummating the marriage. 6. Marriage between a white and negro. 7. Sentence of imprisonment for life. In all the above cases, where the marriage has been solemnized in the State, it is void without decree or legal process. 8. Adultery. 9. Physical incapacity at the time of marriage. The action must be brought within two years thereafter. 10. Sentence of imprisonment for three years or longer. 11. Desertion for two years. 12. Habitual drunkenness of either party. Divorces from bed and board forever, or for a limited time, are granted for — 1. Extreme cruelty, whether by personal violence or other means. 2. Desertion for two years. 3. "Where the husband has not sufficient ability to provide suitable maintenance for the wife. 4. Where the husband grossly or wantonly and cruelly refused or neglected to provide such maintenance. The same causes, at the court's discretion, will answer in an application for a total divorce. 28 LAW OF DIVOKCE. A divorce may be granted to a resident of the State, when the other party has obtained a divorce in another State. The Circuit Court of the county in which one or both of the parties reside, together with the Courts of Chancery, have jurisdiction. The petitioner must have resided for one year last past in the State, unless the marriage was solemnized here, and the plaintiff has resided here since the marriage up to the date of filing the bill. 'No divorce will be granted where there is collusion, or where both parties are guilty of the offence charged. The wife may sue in her own name. The answer need not be under oath. The suits are conducted like equity cases, and the court awards issues, decrees, and costs. The court may force the husband to defray the wife's ex- penses pendente lite, and many award execution or order sequestration. It may also prohibit all restraint exercised over the wife, and may provide for the custody and mainte- nance of the children. In all cases of divorces from bed and board, and in total divorces, except for the wife's adultery, or where the hus- band is sentenced to imprisonment for life, the wife is entitled to all of her real estate as if her husband were dead ; and all or part of her personal estate which came to her husband by reason 'of the marriage, at the discretion of the court, will be returned to her, or its equivalent in money. This money is placed in the hands of trustees for the use of her and the children of the marriage. The husband may be forced to disclose on oath the amount and nature of such personal property, and the balance of it in his hands. After the decree, the court may order alimony at its dis- cretion. The wife is entitled to dower where the husband is sen- tenced to imprisonment for three years or longer, or has committed adultery, or where the- divorce has been decreed for his misconduct. This is granted as if her husband were already dead,. MINNESOTA. 29 "WTien the divorce is decreed for the wife's adultery, the husband holds her persoual estate forever, and her real estate while they both live, and if he survive her with issue born alive, he holds as tenant by the curtesy, yet the court can allow her an income for her maintenance. The court can require security from the husband for ali- mony, and, if it be not paid, can sequester his personal estate and the rents of his real estate. In cases of a second marriage in good faith, under a belief that the former husband or wife is dead, the issue is legiti- mate. Also in cases of non-age, idiocy, and insanity. CAUSES or DIVORCE. 1. Consanguinity. 2. Former husband or wife living. Void absolutely without decree. 3. Incapacity of assent from lack of age or understand- ing. 4. Consent obtained by force or fraud, and no subsequent voluntary cohabitation. The marriage is void from the time its nullity is declared by a competent court. In any of the above cases, the party should file the complaint in the District Court of the county where the parties or one of them resides, to annul the same. The same process may be resorted to, in order to affirm the validity of a marriage. 5. Adultery. 6. Impotency. 7. Sentence of imprisonment in the penitentiary. 8. "Wilful desertion for the term of three years next pre- ceding the filing of the complaint. 30 LAW OF DIVORCE. 9. Cruel and inhuman treatment of one by the other. 10. Habitual drunkenness of either for one year. The District Courts have jurisdiction. The complainant must have resided here one year last past, except in cases of adultery comnjitted while the com- plainant resided here, or unless the marriage was solemnized here, and the complainant has resided in the State ever since. No divorce will be granted for adultery, where there has been connivance of the complainant, or condonation or subsequent voluntary cohabitation with knowledge of the offence, or where the suit has not been brought within three years after the discovery have been made. The action may be brought by the wife in her own name, or by her next friend, and the defendant need not answer under oath. The age of the parties must be given in the petition. A copy of the complaint must be served on the defendant, with notice to appear and answer within thirty days after service thereof, or such other notice as the court may order. Either party may claim a jury trial. The court may force the husband to pay the wife's ex- penses of the suit, and prohibit him, pendente lite, from im- posing any restraint upon her. It may also make an order concerning the custody and maintenance of the children, both before and after the final decree. After the decree, the wife is entitled to her real estate, except where she has committed adultery. "Where the husband is sentenced to imprisonment for life, the wife is entitled to his entire real estate. After the divorce, the court may order the husband to restore to the wife all the personal estate, or the value there- of, which came to him by the marriage, also the value of any of her real estate disposed of by him, and the court may force him to disclose the facts under oath. The court may appoint trustees to receive such property. If the wife has no adequate estate, the court, except where she has committed adultery, may order alimony out of the husband's estate. MISSISSIPPI. 31 If the husband be imprisoned, and a divorce obtained therefor, or if he have committed adultery, the wife has dower in his lands, as if he were dead. The court, at its discretion, may change the name of the wife where she is the complainant. Where children are born before naarriage, the subsec[uent marriage of the parties legitimatizes them. CAUSES OP DIVORCE. 1. Consanguinity and affinity. 2. Impotence. 3. Adultery. 4. Conviction and sentence for two years in the peni- tentiary. 5. Insanity or idiocy, unknown at marriage. 6. Pregnancy of the wife by another man at marriage, without her husband's knowledge. 7. Another wife or husband living. In cases of extreme cruelty and habitual intoxication the court may grant a divorce a mensa et thoro, involving per- petual separation with separate right to after-acquired property. This may be revoked at any time. In a divorce for adultery the court may decree that the offender shall not marry again. The proceeding in divorce is by a bill in chancery in the Circuit Courts. The defendant need not answer under oath. The petitioner must have resided one year last past in the State, except in an action for desertion, when three years' residence is required. The parties must have lived at some time in the State as husband and wife, and the action must be for no cause 32 LAW OF DIVORCE. occurring in any other State, unless before such act the parties had resided in wedlock in this State. This does not apply to bond fide citizens of this State, who married abroad and discovered the cause of divorce after- wards. If the defendant be absent, there must be a publication of the hearing in one paper for a month. CAUSES I'OR DIVOECE. 1. Impotency at marriage and still existing. 2. Former husband or wife living. 3. Adultery. 4. Absence for one year without reasonable cause. 5. Cruel and barbarous treatment, endangering life. 6. Indignities to the person, rendering his or her condi- tion intolerable. 7. Vagrancy of husband. 8. Husband's conviction of felony in any State prior to the contract of marriage. 9. Pregnancy of wife by another man at marriage with- out her husband's knowledge. The Circuit Courts have jurisdiction. The petition should have an affidavit annexed. It must be filed in the county where the plaintiff resides, and pro- cess may be directed throughout the State. The plaintiff must have resided in the State one year im- mediately preceding the filing of the petition, unless the offence or injury was committed within the State, or while one or both of the parties was resident in the State. If the case be conducted ez parte, the court must have proof of the good conduct of the petitioner. If the wife be the successful complainant, all the property MONTANA. 83 undisposed of which came to her husband through the mar- riage, reverts to her and the children. The court, upon her request, can change her name to her maiden name or to that of a former husband. Pendente lite, the court may decree alimony, which at the discretion of the court may be also decreed after the divorce, together with an order for the maintenance of the minor children. If the wife have been the complainant, the hus- band must give security for the payment of the alimony, and upon failure of payment on his part at any time, his property is liable to be sequestrated. The guilty party in the divorce suit forfeits all rights and claims under the marriage, and cannot marry again for five years after the decree has been made, unless otherwise ordered by the court at a term subsequent to the one in which the divorce was granted. An appeal from the decree can be taken before the expira- tion of the term of the court in which the divorce was granted, and a writ of error must issue within sixty days after the decision has been given. Montana. CAUSES OF DIVORCE. 1. Impotency. 2. Bigamy. 3. Adultery. 4. Wilful absence without reasonable cause for one year. 5. "Wilful absence of the husband from the wife, coupled with his departure from the Territory without an intention to return. 6. Habitual drunkenness for one year. 7. Extreme cruelty. 8. Conviction of felony or other infamous crime, without subsequent cohabitation. 3 34 LAW OF DIVORCE. The petitioner must have resided here for one year imme- diately prior to filing his bill, unless the offence was com- mitted within the Territory during the residence of one or both of the parties here. In cases of non-residence, there must be publication for four successive weeks. Sixty days having intervened, ser- vice is deemed complete. If the defendant's residence be known, copies of the papers filed must be sent through the post-office. "Where the defendant does not appear, the court usually appoints a referee at the suggestion of the plaintiff's attorney to report on the case. If he report favorably, the divorce will be granted. Nebraska, CAUSES OP DIVORCE. 1. Where either party has not attained the age of legal consent. 2. Where the consent has been obtained by force or fraud. Subsequent voluntary cohabitation nullifies actions for the above causes. 3. Sentence of imprisonment for life. No decree neces- sary. 4. Adultery, 5. Physical incapacity. ' 6. Wilful desertion for two years. 7. Sentence of imprisonment for three years. 8. Habitual drunkenness, DiSTKiCT Courts have jurisdiction. The petitioner must, have resided in the State for six months immediately preceding the filing of the petition. The husband must give security for alimony. The wife retains possession of her real estate, and the court NEW HAMPSHIRE, 35 at its discretion may give the wife a portion of the personal property which the husband has obtained from her. It may also appoint trustees to take charge of such property. If the husband have been at fault, and a divorce have been decreed for causes Ifos. 3, 4, 7, or 8, the wife has dower. Since the abolishment of chancery proceedings in this State, divorce suits are commenced by petition instead of bill. CAUSES OF DIVOECE. 1. Consanguinity and affinity. 2. Former husband or wife living, with the guilty party's knowledge of the fact. If the marriage have been solem- nized in the State, it is void without legal process. 3. Impotency. 4. Adultery. 5. Extreme cruelty on the part of either. 6. Conviction of any crime punishable in this State with more than one year's imprisonment, which at the time is being undergone. 7. Ill-treatment seriously injurious to health. 8. Ill-treatment endangering reason. 9. Absence of either for three, years, the absentee not having been heard from during that period. 10. Habitual drunkenness of either party for the preced- ing three years. 11. Connection of either party Ivith a religious sect or society, which professes to believe the relation of husband and wife unlawful, with a refusal for the past six months to cohabit with the innocent party. 12. Abandonment and refusal for three consecutive years 36 LAW OF DIVORCE. to cohabit, where there is not sufficient cause and where there has been no mutual consent. 13. Voluntary absence of the husband from the wife for three consecutive years, without affording her suitable sup- port and maintenance. 14. Voluntary absence of the wife of any citizen without his consent for three consecutive years. 15. Removal of the wife of a citizen beyotfd the State and separation from her husband for ten years without his con- sent, and without hier return to claim her marriage rights. 16. Absence of the husband from the country with inten- tion to beconxe a citizen of another country, the wife having resided here for three years. "With the exception of actions for adultery, tlie cause must exist when the libel is filed. The Supreme Judicial Court holden in or for the county in which one of the parties lives has jurisdiction. ' The case is heard at the discretion of a justice of the court before the term as of the term or at the trial term of the court, at the court-house or at chambers at any time fixed by him as in suits of equity, and he may frame and direct issues of fact to be tried by a jury. He may require depositions or oral testimony of witnesses or both, and may have their evi- dence with a report of the proceedings noted down in full by a phonographic reporter employed under his direction. This is by a recent act, which took effect January, 1871. The libel should be signed by the libellant, if of good mind and suitable age. Aliter, by parents, guardian, or next friend. IS'otice should be given to the libellee, unless the court order otherwise. After the libel is filed, the court may prohibit the husband from imposing restraint upon the wife pendente lite, and may make orders for the custody and maintenance of the children, which may be continued after the decree with reasonable provision therefor out of the estate of the guilty party. The court may restore to the wife any part of her estate. NEW JERSEY. 37 or assign to her such portion of her husband's estate, or order him to pay her such amount, as it may deem just, and may compel the husband to disclose under oath the situation of jiis property. The court may appoint a trustee to invest the money for the support of the wife and children. The court also may require the husband to give security for alimony decreed. CAUSES OF DIVOKCE. 1. Bigamy. 2. Consanguinity and affinity. 3. Adultery. 4. "Wilful, continued and obstinate desertion for three years. 5. Extreme cruelty is a cause for divorce from bed and board only, and is granted for life or for a limited period. The Courts of Chancery have jurisdiction. The complainant or defendant must either have been an inhabitant of the State vp^hen the injury, desertion, or neglect complained of occurred, or, in cases where the marriage was consummated here, the complainant must have been a resident at the time the bill was filed. In cases of adultery, where the act was committed in the State, an action may be brought, if either party reside here at the time of filing the bill. After the petition has been filed, the clerk, if required, makes a certified copy of it, which is served upon the defend- ant, and a citation is issued under the seal of the court, com- manding the defendant to answer by the first day of the next term of the court. 38 LAW OP DIVORCE. No petition or citation shall be set aside for defect of form, but may be amended. If the defendant does not file his answer within three days thereafter, or obtain an extension of time from the court, the plaintifi:" proceeds ex 'parte. This answer need not be under oath. The parties then proceed at once to take evidence. If the chancellor, upon affidavit shown him, believes the defendant cannot be found within his jurisdiction, he appoints a day upon which the defendant shall answer the petition, which will be not less than two months nor more than six months from the date of such order, which said order shall be served within twenty days thereafter on the defendant wherever found, or at the dwelling-house of the defendant ; or be published in one newspaper designated in such order once a week for four weeks consecutively, with additional publication, should the court require it. If the wife be the complainant, the court may order the husband to give security. If he fail, aji order may be made of sequestration of his personal estate, and the rents of his realty. If the chancellor deem a jury necessary in any matter of fact, the Court of Chancery may direct issue in the Supreme or Circuit Courts. After the decree, the court may make orders for alimony, and for the maintenance of the children of the parties. In April, 1870, the chancellor added the following rules in substance : — In a suit for divorce on account of adultery, the petition must state the name of the person with whom the act was committed, if known, and if not known, shall describe such person, or designate the time, place, and circumstances, in order that the defendant and the court may distinguish the particular offence charged ; otherwise no reference will be ordered. In suits for desertion, the master shall examine into and report the facts and circumstances under which the desertion took place and the reasons which caused or provoked it, if the same can be ascertained. NEW YORK. 39 Neb ¥orIt. CAUSES OF DIVORCE. 1. Nonage of either party at the date of marriage, with- out subsequent willing cohabit&,tion. 2. Former husband or wife of either party living, and the previous marriage still in force. If a reasonable belief of death exist, the children of the second marriage inherit as legitimate. 3. Idiocy or lunacy. Any relative may bring an action for this cause. 4. Consent by force or fraud, and no subsequent voluntary cohabitation. 6. Physical incapacity for marriage. An action for this cause must be brought within two years from the solemnization of the marriage. For the above causes, existing before marriage, the chancellor may by sentence of nullity declare such marriages void. 6. Adultery, if at the time of the commission of the offence, both parties lived in the State, or in cases where the marriage was solemnized here, or where the injured party at the time of the commission of the offence and at the date of filing the bill was an inhabitant of the State. In every instance, suits must be brought by bill and conducted as in other equity cases. The wife may sue in her own name. The answer of the defendant need not be under oath. If tlie offence charged be denied, the court shall direct a feigned issue for the trial of the facts at some Circuit Court. If the answer admit the charge of adultery or the bill be taken -pro eonfesso, the cQurt will refer the case to a master to report testimony with his opinion thereon. 40 LAW OF DIVORCE. A divorce for adultery will be refused where there has been connivance on the part of the complainant, or condonation, or cohabitation with knowledge, or where complainant is also guilty of adultery, or where more than five years have intervened since the discovery of the offence. If the wife be guilty of adultery, she loses dower in the estate of her husband and all right to a distributive share of his personal estate. 'So defendant, guilty of adultery, shall marry again during the lifetime of the complainant. • If the wife be the complainant, the court, after the decree, may order the husband to provide her suitable allowance and provide for the support of the children. The wife shall also retain her real estate and such per- sonal property as'she may actually have in possession. If the husband be the complainant, the wife retains her real estate, but yields to the husband her personal property and the choses in action in her possession. Divorces from bed and board for a limited term or for- ever, on the wife's complaint, may be decreed by the Court of Chancery for the following causes : — 1. Cruel and inhuman treatment by the husband. 2. Such conduct of the husband as may render it unsafe and improper for the wife to cohabit with him. 3. Abandonment of the wife by the husband, arid his refusal or neglect to provide for her. The defendant may justify by showing the ill conduct of the complainant. To sustain the above actions by the wife, both parties must live in the State, or, if the marriage was consummated here, the wife must be an actual resident, or both parties must have lived in the State one year, and the wife be an actual resident at the time of filing the bill. The court may order the maintenance of the wife and children on the part of the husband, and force him to give security therefor. A receiver may be appointed to collect NORTH CAROLINA. 41 his rents and pay a portion to the wife. This order is revocable. The expenses of the suit and the costs pendente lite may be demanded of the husband, and, upon his refusal or neglect, his property may be sequestrated. If the defendant cannot be found within the State, which fact is proved by affidavit after the bill has been issued, the court may direct publication in two newspapers most likely to give notice to the defendant, not less than once a week for six weeks, and the court may also order a copy of the bill' to be deposited in the post-office directed to the defendant at his residence, unless the complainant swear he is ignorant of such residence and cannot find it. If publication be ordered, personal service of the bill out- side of the State answers. The action must be commenced in the county where the plaintiff resides. Where the wife is the defendant in an action of adultery, asserting her innocence under oath, and has no means, she is entitled to alimony and counsel fees ; but, if the affidavits and papers presented by her raise a serious doubt of her final success, the motion will be denied. CAUSES OF DIVORCE. 1. Impoteney at the date of marriage. 2. Adultery coupled with separation. 3. Any other just cause at the discretion of the court. Divorces from bed and board are granted for — 4. Malicious abandonmerit of his family by the man, or in cases where the man turns his wife out of doors. 5. Cruel and barbarous treatment by the husband endan- gering the life of the wife. 42 LAW OF DIVORCE. 6. Indignities offered by the husband to the wife's person, rendering her life burdensome. A DBCEEB for alimony alone may be made where the husband is a spendthrift or a habitual drunkard, where such decree does not prejudice the creditors of the husband. The libel should be filed either during the term of the court, or, if in vacation, twenty days before the term shall begin. It should be accompanied with an affidavit, and a bond with security should be entered, unless the petitioner swear he is not worth two hundred dollars. The causes must have existed at least six months before the filing of the libel, and the complainant must have resided in the State for three years next preceding the date of the commencement of the action. The subpoena must be served personally upon the defend- ant or at his or her abode ten days before the return day. If not found, an alias subpoena is issued. This is followed by public proclamation at the court-house and notice in one newspaper for six weeks. The party offending cannot marry again during the life of the other. CAUSES OP DIVOECE. 1. Former husband or wife living at the time of the second marriage. 2. Wilful absence of either party for three years. 3. Adultery. 4. Impotency. 5. Extreme cruelty, unless proof of condonation. 6. Fradulent contract, as where pregnancy at the date of marriage without the husband's knowledge. 7. Gross neglect of duty. OHIO. 43 8. Habitual drunkenness for three years. 9. Imprisonment in the penitentiary of any State, for an offence which would have been similarly punished in this State. (Marriages by males under eighteen years of age and by females under fourteen are invalid, unless they are confirmed by subsequent cohabitation after that age be reached.) The Legislature cannot grant divorces. The Courts of Common Pleas have jurisdiction. The wife may file her petition for alinaony alone for the following causes : — 1. Adultery. 2. Gross neglect of duty. 3. Abandonment without good cause. 4. Separation on account of the husband's ill treatment of the wife. 5. Habitual drunkenness. 6. Imprisonment in any penitentiary. One year's residence in the State immediately prior to the filing of the petition is requisite. The petitioner must also be a resident of the county where the petition is filed, except where the cause of complaint took place in the county. The petition must state the causes, and also the names and ages of the children of the parties. If alimony be . sought, the petition should state the amount and kind of the husband's personal property and real estate. If the defendant reside where the petition is filed, the sheriff must serve a summons and a copy of the petition at least six weeks before the hearing of the case. If the defe^dant be a non-resident in the county, then notice of the petition, containing the substance thereof, shall be published in some newspaper of general circulation in the county for six consecutive weeks, and a summons and copy of the petition shall be mailed to the defendant, unless the 44 LAW OF DIVORCE. complainant swear by affidavit that such residence is un- known to him and could, not be readily ascertained. "Where the defendant resides in another county, service of the sum- mons and petition may be made upon him as above. The answer need not be under oath. If the defendant deny the charges, the court hears and determines, and makes orders for the care and maintenance of the children. Where the witnesses in the divorce case or for alimony reside in the county, they are examined in open court ; but, if resident elsewhere or unable to attend, depositions are taken; notice of such depositions, where the defendant is absent, being given by publication in a newspaper three weeks before the depositions are taken, and a copy of such notice must be mailed to the defendant, if the residence be known. Alimony, pendente lite, is also granted. If the husband have done the wrong, the court will return to the wife all her real estate not previously disposed of, with such alimony as the court may deem reasonable, and if she survive the husband, she has dower in his lands. She also may have her maiden name restored to her, if she desire it. If she be the wrongdoer, she is barred of dower, but re- tains her own estate with alimony as above. Appeals may be taken in any case to the District Court. (&xt^on. Maeriagbs are absolutely void in cases of consanguinity or bigamy, or where there is one-fourth or more of negro blood in a person married to a white man or woman, if such marriage have been solemnized in Oregon. OREGON. 45 CAUSES OF DIVORCE. 1. Incapacity of assent. 2. Force or fraud. In the above cases the court may declare the marriage void ah initio or from the decree. 3. Impotency at and after marriage. 4. Adultery. 5. Habitual drunkenness, contracted since marriage and continuing during the two years immediately preceding the suit. 6. Conviction of felony. 7. "Wilful desertion for three years. 8. Cruel and' inhuman treatment. An action for adultery must be brought within one year after the discovery of the act. There must have been no condonation nor similar act committed by the plaintiff. After divorce, the real estate of neither is controlled by the other in any manner, except in cases of adultery or con- viction of felony, when dower and curtesy both exist. Pendente lite the court attends to the custody of the children, also to the freedom of the wife from restraint by the hus- band. The court may further order that the husband pay or se- cure to the clerk of the court sufficient money to. defray the wife's expenses of suit. After a divorce be decreed, the court may order the party in fault to pay for the care of the children during their early minority, or to aid in the maintenance of the innocent party. The husband may be enjoined to deliver to the wife or to trustees her personal property in his hands at the time of the decree. Where the wife is not in fault, the court may permit her to resume her maiden name. The court has the power to modify or set aside a decree. 46 L'AW OF DIVORCE. CAUSES OF DIVORCE. 1. Impotency at marriage with incapacity for procrea- tion, whicii still continues. 2. Bigamy. 3. Adultery. 4. Wilful and malicious desertion, without reasonable cause for two years. 5. Cruel and barbarous treatment of the wife by the hus- band, whereby her life is endangered. 6. Such indignities offered by the husband to the wife, as to render her condition intolerable and her life burden- some, and thereby force her to withdraw from the house and family of her husband. 7. Marriage obtained by fraud, force, or coercion. 8. Sentence of either party to two years' imprisonment for a felony. 9. Cruel and barbarous treatment by the wife, as shall render the husband's life intolerable. In this case alimony is granted to the wife. 10. Personal abuse, or such conduct on either side as ren- ders life intolerable and burdensome, even if at the time such conduct existed the parties lived in another State. Note. As to the mode of procedure and practice, see the Rules of Prac- tice of Pennsylvania in the concluding portion of this work. KHODB ISLAKD. 47 Mftotre Hslantr. CAUSES OF DIVORCE. 1. Where the marriage is originally void or voidable by law. 2. "Where either party for crime is civilly dead. 3. Where either party, from long absence, is presumed to be naturally dead. 4. Impotency. 5. Adultery. 6. Extreme cruelty. 7. Wilful desertion for five years or for a shorter period, at the discretion of the court. 8. Continued drunkenness. 9. Neglect or refusal of the husband to provide necessa- ries for the wife, where he has the ability. 10. Any other gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage contract. Collusion will defeat the application. Divorces fr(ym bed and board may be granted for the same causes, and for such other causes as may seem to require such divorce. The petitioner must have resided in the State one year last past, and the case is heard in the county where the petitioner resides. The court may make interlocutory decrees and grant temporary injunctions. The Supreme Court has exclusive jurisdiction, and by the act of 1867 one justice is sufficient. Where the divorce has been granted for affinity, consan- guinity, impotency, idiocy, lunacy, or crime, the wife shall 48 LAW OF DIVORCE. have restored to her all of her real estate, and judgment may be obtained for a restoration of her personal property which has come into the husband's hands by marriage. If the divorce be decreed for any other of the above causes committed by the vrife, the husband shall hold her personal property, not secured to her by law, forever, and her real estate, not" secured to her by law, during his life if issue born alive, otherwise during their mutual lives. The court, however, may allow the wife for her subsistence as much of her estate as it may deem proper. If the husband be at fault, the wife continues to hold all her real and personal property, secured to her by law, free from her husband's control forever. The court may also grant her reasonable alimony, not exceeding the use of a moiety of his real and personal estate, in his possession while living with his wife. The court also makes decrees as to the care and mainte- nance of the children. It may also allow the wife, as com- plainant, to change her name. The divorce laws are in a very crude condition in this State. Prior to the adoption of the present constitution in 1868, divorces were not allowed for any cause. There was no statute or constitutional provision on the subject, and the courts, as well as the legislature, refused to entertain appli- cations for divorce. The present constitution contains, however, the following provision on the subject, to wit: "Divorces from the bonds of matrimony shall not be allowed but by the judgment of a court as shall be prescribed by law." There has as yet been no statutory enactment to carry this provision of the constitution into effect, and some of the Circuit Judges have refused to entertain juris- diction of applications for divorce in the absence of such enactment, while others have entertained them as within TENNESSEE. 49 the jurisdiction of the court by virtue of the powers incident to it at common law. The question has not been before the Supreme Court of the State. As to the mode of proceeding, the legislature adopted in March, 1871, a code of procedure which is almost an exact transcript, mutatis mutandis, of the ISew York new code. CAUSES OP DIVOECE. 1. Impotence at marriage with incapacity for procreation. 2. Bigamy. 3. Adultery. 4. WiKul and malicious desertion or absence without reasonable cause for two years. 5. Conviction of felony, with imprisonment in the peni- tentiary. 6. Pregnancy of wife at marriage with a child of color. Divorces from bed and board are granted for the above causes, and alsofoi — 1. Cruel and barbarous treatment, endangering the life of the wife. 2. Malicious abandonment of the wife by the husband, or where he turns her out of his house. 3. Indignities offered to the wife's person, such as render her condition intolerable. The subpoena in divorce must be served personally or a copy be left at the defendant's place of abode, at least fifteen days before the return day. If there be no appearance, an alias subpoena must be issued, returnable on the first Monday of the next term, which must be served as before. If the defendant be not found, the sheriff must issue 4 50 LAW OP DIVORCE. proclamation, on three several days at the court house during term time, together with, a notice in a nevs^spaper for four successive weeks before the return day of the process. Either party may demand a jury trial. The court may make interlocutory orders. The complainant must be a citizen of the State, with one year's residence therein immediately preceding the filing of the petition. If either party upon false rumor of the death of the other, who has been absent for two years, has married again, it is not adultery, but the party remaining single, at his or her return, may choose to revive the former marriage or have it dissolved and permit- the second marriage to stand. No divorce will be decreed for adultery, if there have been condonation, or if the plaintiff have been equally guilty, or if the husband have sanctioned the wife's prostitution. The guilty party shall not marry the accomplice in adultery during the life of the innocent party. After the divorce, if the wife live openly with the adulterer named in the petition, she cannot alienate any real estate, but all deeds and wills made by her shall be void, and her property shall descend as if she died seized thereof intestate. In divorces from bed and board, alimony may be allowed the wife in a sum not exceeding the one-third of the husband's income, which must be paid until reconciliation or offer made by the husband to cohabit again with his wife and treat her properly. After a divorce, the court may decree to the wife some part of the real or personal property of the husband, and appoint three freeholders as commissioners to make division accordingly, taking into consideration the property which came to the husband through the wife. When any female of good character shall have removed to this State and lived here for two years last past, and shall have been abandoned by her husband during that time maliciously and without reasonable cause, upon application a decree of divorce will he granted, notwithstanding such cause of divorce may have occurred in another State. TEXAS. 61 CAUSES OF DIVORCE. 1. Impotency. 2. Adultery of wife committed within the State. 3. Adultery of husband committed within the State, if coupled with abandonment of wife, he meanwhile living in adultery. 4. Desertion for three years. A DIVORCE by separation will be decreed when either party is guilty of excesses, cruel treatment, or outrages towards the other, rendering life insupportable. The defendant is not compelled to answer on oath. The jury may render a verdict on the facts. After the suit is commenced, the husband cannot contract debts on account of the household, nor dispose of his lands with fraudulent intent to injure his wife. Pendente lite, the wife may require an inventory and appraisement to be made of both the real and personal estate in the possession of her husband, and may obtain an injunc- tion restraining him from disposing of it in any manner. The' court may ultimately decree a just division of the estate of the parties. This does not divest the title to real estate. Costs may be awarded to either party. Alimony -pendente lite may be granted, and the court may make orders in relation to the property of either party. An appeal may be taken to the Supreme Court. The legislature has no power to grant divorces. 52 LAW OF DIVORCE. Vtxmont CAUSES OF DIVORCE. 1. Consanguinity or affinity. No decree necessary. 2. Former husband or wife living. No decree necessary. 3. Where either party has not attained the age of legal consent. 4. Idiocy or lunacy. 5. Where consent was obtained by force or fraud. , 6. Impotency at marriage, if the action be brought with- in two years thereafter. 7. Adultery. 8. Sentence for three 'years or more with actual confine- ment. Not affected by subsequent pardon after the divorce has been granted. 9. Intolerable severity. 10. Desertion for three consecutive years. 11. Absence for seven years, without tidings of where- abouts. 12. Neglect, or wanton, cruel refusal on the part of ^he hus- band to suitably maintain his wife, where he has the ability. There must have been no voluntary cohabitation after the party has attained proper age, nor in the case of force or fraud, or the causes Nos. 3 and 5 will be inoperative. In the latter case the custody of the children will be decreed to the innocent party, and the guilty one must support them. The children of a marriage, annulled on account of the lunacy of a parent, succeed as legitimate children to the pro- perty of the same parent. The Supreme Court of the county has jurisdiction. The petitioner must have lived in the State two years next preceding and one year in the county. If the respondent reside in the State, the summons must VERMONT. 63 be served at least twelve days before the sitting of the court. This is done by giving the respondent an attested copy of the libel and summons, or by leaving copies at the abode of the respondent. In the latter case, the service is worth nothing, unless there be proof adduced that the respondent afterwards called at such abode. If the respondent be out of the State, the libel should be presented to the judge, who will order publication of the substance of the libel with his order attached in one or more papers, at his option. If the court deem a notice defective, a further notice may be ordered. Where the wife is the petitioner, the court may enjoin the husband from disposing of his property. This order is a lien on real estate and corporation stocks, after being filed and notice given to the private corporation. Alimony is granted pendente lite. The court disposes' of the custody of children before and after the divorce. If a divorce be decreed on account of adultery by the wife, the husband holds her personal estate forever and her real estate as long as both live. If he survive her, issue having been born alive, he holds for his life. The court, in such cases usually grants the wife an allowance. In every other case, the wife after divorce is entitled to immediate possession of her real estate. The court may also decree her a portion of her husband's estate as may seem just. The husband may be required to disclose on oath what pro- perty has come to him by reason of the marriage, and what has become of it. The court may appoint trustees over the property of the husband decreed to the wife, and hold it for -the use of her and her minor children. The court permits the woman to take her maiden name or the name of any former husband. 54 LAW OF DIVORCE. CAUSES OF DIVORCE. 1. Adultery. 2. Incurable impotency, existing at time of marriage. 3. Confinement in the penitentiary. 4. Conviction of an infamous offence prior to marriage, unknown to the other party. 5. "Wilful desertion for five years. 6. Pregnancy of the wife at the time of marriage by an- other man, the- fact being unknown to the husband. 7. The wife having been a prostitute before marriage, without the husband's knowledge, unless there have been subsequent cohabitation with such knowledge. 8. Extreme cruelty. Divorces jrom bed and board may be decreed for — 1. Cruelty. , 2. Eeasonable apprehension of bodily hurt. 3. Abandonment or desertion. The Circuit Courts sitting in chancery have jurisdiction. One of the parties must be a resident of the State at the time the suit is brought. The action may be brought in the county where the par- ties last dwelt, or at the option of the plaintiff in the county where the defendant resides, if a resident, aliter in the county where the plaintiff lives. The action is conducted like other suits in equity, except that the bill is not taken pro confesso, and the case is heard independent of the confessions of either. The court may award aHmorxy pendente lite, and also costs. It may also prevent restraint by the husband, and may pre- serve his estate, that it may be forthcoming to meef the de- cree, or compel him to give security to abide by the decree. WEST VIRGINIA. 55 The court may add to the decree an order for the mainte- nance and custody of the children. In a divorce from bed and board, the court may decree perpetual separation and protection in person and property. Actions for adultery must be commenced within five years from the commission of the crime, and the court in such actions may decree that the guilty party shall not marry again, which decree may be revoked. CAUSES OF DIVORCE. 1. Where a white person and a negro have intermarried. 2. Former wife or husband living. 3. Consanguinity or aflinity. 4. Insanity at marriage. 5. Physical incapacity at marriage. 6. Where either party has not attained the age of legal consent. For the above causes, where the marriage took place in the State, a decree of nullity will be granted. A similar decree will: be granted, where a party in order to evade the law! temporarily leaves the State, marries elsewhere and subsequently returns and cohabits here. The validity of a marriage supposed to be void for the foregoing causes may be affirmed by a decree after proof heard. 7. Adultery, if the action be brought within five years. 8. Natural and incurable impotence at date of marriage. 9. Sentence of confinement in the penitentiary. 10. Conviction of an infamous offence prior to marriage, without the knowledge of the other party". . 56 LAW OF DIVORCE. 11. "Wilful desertion for three years. 12. Pregnancy of the wife at marriage by other than her husband and without his knowledge. 13. Where the wife before marriage without the know- ledge of the husband has been notoriously a prostitute. 14. "Where the husband before marriage without the knowledge of the wife has been notoriously licentious. In the last three cases a divorce will not be granted where there has been subsequent cohabitation with knowledge. Divorces from bed and hoard may he decreed for — 1. Reasonable apprehension of bodily hurt. 2. Abandonment or desertion, 3. Cruel or inhuman treatment. A false charge of prostitution made by the husband against the wife is included under this third cause. The Circuit Court sitting in chancery has jurisdiction. One of the parties must be a resident of the State. The suit must be brought in the county in which the parties last cohabited, or (at the option of the plaintiff') where the defendant resides, if a resident, otherwise in the county where the plaintiff" lives. A wife must sue in her own name. "Where the defendant is a non-resident, publication of the statement and object of the suit must be made once a week for four weeks in a newspaper in the county, with the posting of the statement for twenty days on the court-house door. Costs may be awarded to either party. Pendente lite, the court may compel the husband to pay alimony and provide for the children, and also preserve his estate to meet the decree, and compel him to give security to abide the decree. In a divorce from bed and board, the court may decree perpetual separation and protection of each party in person and property. This operates upon property thereafter acquired and upon the personal rights and legal capacities WISCONSIN. 57 of the parties, as if a total divorce, except that neither party- shall marry during the lifetime of the other. If the decree be granted for desertion, a total divorce will be decreed at the end of three years on the application of the injured party. Divorces from bed and board may be revoked at any time on the joint application of the parties. Wimomin. CAUSES or DIVOKCB. 1. Consanguinity and affinity. 2. Bigamy. Marriages under the above circumstances are void without legal process. 3. IN'on-age and want of understanding. 4. Force or fraud, and no subsequent cohabitation. Marriages under the latter circumstances are void by a decree of nullity granted by the court. 5. Sentence of imprisonment for life. This dissolves a marriage absolutely. 6. Adultery. 7. Impotency. 8. Sentence of imprisonment for three years or longer. 9. "W^ilful desertion for one year last past. 10. "Where the husband and wife shall have voluntarily lived entirely separate for the space of five years next pre- ceding the application for divorce, the same may be granted on the petition of either party. 11. Cruel and inhuman treatment, by using personal vio- lence or other means. 12. Habitual drunkenness of either party for one year. 58 LAW OP DIVORCE. Divorces from bed and hoard are decreed for — 1. Desertion for oae year. 2. Cruel treatment. 3. Drunkenness. 4. "Where the husband, with sufficient ability, neglects to provide for the wife. 5. Where the husband's conduct renders it unsafe or im- proper for the wife to live with him. A judgment of divorce from bed and board may be revoked. Total divorces may be granted for the last-mentioned causes also at the discretion of the court. The Circuit Courts have jurisdiction. The petitioner must have resided one year last past in the State, except for adultery committed while the plaintiff was a resident of the State, or unless the marriage was solemnized in the State, and the applicant has resided here ever since. An action for adultery must be brought within three years after the discovery of the offence. The answer of the defendant need not be under oath. Pendente lite, the court may force the husband to pay the wife's expenses of the suit. If he neglect to do so, the court may order his property to be sequestrated. The court may prohibit the husband from placing any restraint upon the wife, and may give orders as to the care and custody of the minor children. In all cases of divorce, except for the wife's adultery and in cases where the husband has been sentenced to imprison- ment for life, and also in divorces from bed and board, the wife is entitled to all her real estate, as if her husband were dead. The court may also compel the husband to return to the wife all or part of her personal estate, which came to him through the marriage, or the value thereof, and may compel him to disclose the nature and amount under oath. The court may place this property in the hands of trustees, to pay over the income to the wife and the children, and it WISCONSIN. 59 may also decree alimony, except where the wife has com- mitted adultery. If the husband be sentenced to imprisonment for three years or longer, or has been guilty of adultery, the wife is entitled to dower, as if he were dead. The court may require security for the payment of alimony. It may sequester his personal estate and the rents of his real estate, and may appoint a receiver. Children born before wedlock are legitimatized by subse- quent marriage, if the father acknowledge them. The issue of marriages declared null in law are legiti- mate. II. DIGEST OF DECISIONS. 1. Adultery. 2. Cruelty. 3. Desertion. 4. Other Causes of Divorce. 5. Jurisdiction and Domicile. 6. The Petition or Libel, 7. Practice and Pleadings. 8. Evidence. 9. Property of the Parties. 10. Custody of the Children. 11. Decrees granted in other States. 12. Position of the Parties after a Divorce. 13. Alimony. ^truItetK, INDEX OP SECTIONS. Alabama, 51, 58, 69, 88. Arkansas, 79. Connecticut, 33. Delaware, 92. Georgia, 60, 68. Illinois, 64, 95. Indiana, 16, 31, 34.. Louisiana, 73, 75. Massachusetts, 18, 19, 28, 35, 36, 38, 70, 85, 86, 103. Maine, 17, 23, 89, 39J. Michigan, 93. Mississippi, 30, 61, 63. Missouri, 44, 63. North Carolina. 5, 34, 36, 37, 54. New Hampshire, 20, 21, 31-33, 53, 78. New Jersey, 59, 71, 77, 81-83, 89, 91, 96-102. New Yorlf, 1-15, 43, 43, 48-51, 54, 55, 66, 67, 73, 74, 76, 87, 90, 94. Ohio, 37, 38, 40, 41. Pennsylvania, 27, 29, 45-47. Tennessee, 79, 80, 84. Vermont, 65. 1. ]S"ew York. A divorce a vinculo, though adultery be fully proved, is not granted of course in all cases. 1 John, Ch. 488. 2. ITew York. The court will not decree a divorce a vinculo for the adultery of the wife, if the husband, with knowledge of the adultery, subsequently cohabit with her, or acquiesce for a long time (in this case twenty years), without any disability to sue. 1 John. Ch. 488 ; 14 Wend. 637; 4 Paige Ch. 460. 3. ISTew York. The effect of cohabitation, as a condona- tion of adultery, is less binding upon the wife than the husband. 1 Edw. Ch. 439. 4. ISTew York. Condonation, implied from subsequent co- habitation, is not in all cases a strict bar against a suit for divorce by the wife. 2 Paige Ch. 108. 5. New York and Iforth Carolina. Condonation of the adultery is a conditional forgiveness of the offence, and a repetition of the adultery revives the offence. 4 Paige Ch. 482,460; 1 Dev. Ch. 352. 6. New York. "Whether cohabitation after a private confession by the husband to the wife of his adultery, but 64 LAW OF DIVOKCB. of which the wife has no legal evidence, is a bar to her suit for the adultery. Vide 7 Paige Ch. 60. 7. New York. "Where the bill for adultery shows an ap- parent condonation, but states circumstances to negative the condonation, it seems that the master, upon a reference, may take proof of condonation, though not set up by the defendant. 1 Edw. Ch. 439. 8. New York. In a suit for divorce for the husband's adultery, proof that he has lived separate from the wife, and of an admission by him that he has cohabited with a woman residing in the house with him, is not sufficient. 2 Edw. Ch. 207. 9. New York. "Where a bill by the wife for divorce for adultery had been taken pro confesso, the court refused to decree a divorce on thp testimony of one witness, that the adultery was committed with herself. 3 Edw. Ch. 295. 10. New York. After a decree was granted for the wife's adultery, upon petition by husband and wife to vacate such decree, upon the husband's oath that he was then satisfied that his wife was not guilty, the order was granted and the complainant's bill dismissed. 2 Paige 385. 11. New York. Where it is shown that parties have been cohabiting illicitly, the criminal intercourse will be presumed to continue so long as they are living under the same roof. 4 Paige Ch. 432. 12. New York. If the husband who seeks a divorce for the wife's adultery has been guilty of the same offence, either before or after the offence of the wife, it is a conclu- sive bar to the suit. And where the offence of the husband was committed after the commencement of the suit, upon a proper application immediately after the discovery of the fact, even after the adultery of the wife has been found on the trial of a feigned issue, the defendant will be allowed to put in a supplemental answer or to file a cross bill in the nature of a -plea, -puis darrein continuance at law to establish the fact. lb. 13. New York. A divorce for adultery will not be granted, though the bill be taken pro confesso, without clear proof of the adultery. 3 Edw. Ch. 469. ADULTERY. 65 14. New York. '.The necessary denial of condonation in the bill must be supported by proof. 3 Edw. Ch. 389. 15. New York. A divorce cannot be decreed upon a bill charging adultery generally, without stating either time, place, or circumstances, though the persons with whom it is committed are unknown. lb. 16. Indiana. A husband cannot resist a divorce for adultery by setting up desertion by the wife. 4 Porter 467. 17. Maine. Where, in cross libels between husband and wife for divorce 'a vinculo for adultery, each respondent pleaded, in bar, that the other party had committed the same crime, it was held that these pleas could not be received as admissions of the facts alleged in the libels. 3 Greenl. 398. 18. Massachusetts. A charge of extreme cruelty and a charge of adultery may be joined in the same libel, and the court will decree a divorce according to the evidence pro- duced. 4 Mass. 430. 19. Massachusetts. If upon a libel for divorce for adultery, the respondent would show a like crtme committed by the libellant, he must plead it, or evidence of the same will not be received. 6 Mass. 276. 20. New Hampshire. If a libel for divorce allege adultery with a particular person, it is not sustained by proof of adultery with any other person. 5 N. Hamp. 195. , 21. New Hampshire and Indiana. "Where a wife has committed adultery, a subsequent cohabitation with her by the husband, with a knowledge of her guilt, is a remission of her offence on his part and a bar to a divorce. 4 Blackf. 131; 4 N. Hamp. 462. 22. Maine. Such proof may be given in evidence under a general traverse of the facts alleged in the libel. 3 Greenl. 136. 23. Connecticut and Massachusetts. Cohabitation with a guilty party after the commission of adultery, with probable knowledge of the offence, is a remission of it, and a defence to a petition for divorce. 9 Conn. 333 ; 6 Mass. 69, 147 ; 5 Mass. 320. 24. Indiana. If a man apply for a divorce on account of the adultery of the wife, and it be proved that, after the 5 66 LAW OF DIVORCE. offence complained of, he himself lived in adultery, his application must fail. 3 Blackf. 203; 2 Ham. 333. 25. Massachusetts. If, upon the hearing of a libel for divorce for the adultery of the husband, it appears that he has become insane since the crime charged, the court will not proceed further until the appointment of a guardian. 13 Mass. 412. ,26. Massachusetts. A divorce will not be decreed for adultery, if it appear that the respondent was insane when the offence was committed. 7 Mass. 474." 27. Pennsylvania. The adultery of the husband after the desertion of the wife is no bar to an action for the deser- tion, and by the act of 1815 is only a bar in an action brought for adultery. 4 Eawle 460. 28. Massachusetts. A divorce will not be granted for the adultery of the wife, committed through the husband's pro- curement. 3 Pick. 299. 29. Pennsylvania. Where the libel is for desertion, it is no bar to the action, that the libellant committed adultery after the desertion occurred. If the adultery had been committed while the parties lived together, it would be a reasonable cause for desertion. 4 Rawle 160. 30. Mississippi. Adultery may be set up as a bar to alimony. "Walker 474. 31. S^ew Hampshire. If either party forgive the adultery of the other, it cannot afterwards be set up as a ground of divorce, without evidence of a further injury. ION. Hamp. 272. 32. New Hampshire. If having reasonable notice of such adultery, and of his power to prove the fact, the husband cohabits with his wife, this is an implied condonation, and bars him of any right to avail himself of the previous adultery alone, as a cause of divorce. lb. 33. New Hampshire. But cohabitation, under circupi- stances which might excite suspicion merely, does not amount to condonation. lb. 34. North Carolina. Where the parties are living in voluntary separation, the court may in some cases grant a divorce a mensa for the cause of adultery committed' during such separation. But in no case will it decree a divorce a ADTJLTBEY. 67 vinculo under such circumstances, unless the wife alleges and proves, that she was compelled to such separation by the violent or outrageous conduct of her husband, in which case it shall be deemed that he separated himself from her. 5 Iredell 674. 35. North Carolina. Under the act of 1814, a single act of adultery in a married man whereby he becomes ihfected with disease which he communicates to his wife, is not a sufficient cause for a divorce for adultery. 2 Hawks 189. 36. North Carolina. A husband cannot obtain a divorce from his wife on the ground of adultery by her after a separation, if such separation has been occasioned by the fault or at the instigation of the husband. 2 Iredell 55. 37. Ohio. Adultery may be presumed from circumstances. Wright 156. 38. Ohio. "Where gross neglect is the only ground alleged for divorce, it will not be granted on proving adultery. Wright 763. 39. Maine. The particeps. criminis is a competent witness for the libellant. 1 Shep. 110. 39|. Maine. Where a libel for adultery alleged to have been committed with parties named and others unknown, within a specified period, was not sustained, such judgment is a bar to a subsequent libel for offences committed within that period, but not to a libel for offences prior and subse- quent to the period laid in the first libel, it not appearing that the causes complained of were the same in both. 5 Shep. 203. 40. Ohio. The name of the person with whom the adultery was committed should be given. Wright 98, 302. 41. Ohio. A charge of adultery with a certain woman is too indefinite. Wright 284. 42. New York. Under the statute of New York, where a wife sets up in defence to a bill for divorce the adultery of the husband, he may avoid the defence by showing a condonation; and by replying to such defence, he not only takes issue on the charge of adultery, but tenders another, that the adultery charged was not such as would entitle the defendant, if innocent, to a divorce. 1 Barb. 318. 43. New York. In such defence by the wife, she must 68 LAW OF DIVORCE. allege the name of the person with whom the adultery was committed, if known to her, and if not known, she must allege that it is unknown ; she must also state with reason- able certainty the time and place of committing the act. lb. 44. Missouri. In a proceeding for a divorce in Missouri by a husband against his wife for drunkenness, the wife may defend by showing the adultery of the husband, and, if that fact be found, a divorce will not be granted. 9 Mis. 639. 45. Pennsylvania. The Pennsylvania statute of May, 1815, enacts, that, in cases where the libellant has admitted the respondent into conjugal society and embraces, after he or she knew of the other having committed the crime of adultery, it is a bar to a divorce on that ground and for that oftence. But there is no such provision in cases of divorce for cruel treatment. 6 Barr 449. 46. Pennsylvania. A wife's insanity is not a bar to a divorce for adultery committed by her when insane, although it would be a defence to an indictment for the crime. Insanity might be a bar to a divorce at the suit of the wife, when it would not, in similar circumstances, be a bar to a divorce at the suit of the husband. This distinction is founded upon English law. Adultery committed under the influence of nymphomania or erotic mania would certainly be a ground for divorce though not of indictment. 6 Barr 332. 47. Pennsylvania. It is a fundamental principle, that it is not necessary to prove the direct fact of adultery, for, being committed in secret, it is seldom susceptible of proof, except by circumstances. 6 Barr 332. 48. IS'ew York. In a suit for a separation, an application by the defendant, to set up as a defence the adultery of the complainant since the putting in of his answer, will not be granted except under very urgent circumstances, such as repel any notion of any attempt to evade the justice of the case, or to set up new or ingeniously contrived defences or subterfuges. The court must be satisfied that the reasons in support of the application are well founded, that the facts to be added are highly probable if not certain, that they are ADULTERY. 69 material,, and have come to the party's knowledge since his original answer was sworn to. The proper mode is for the defendant to obtain an order that the cause stand over until he can put the facts in issue by a cross bill, which must be brought to a hearing with the original suit. 2 Barb. Sup. Ct. 473. 49. New York. Where, to a bill to obtain a divorce for adultery, the defendant in her answer alleged, that the plaintiff had committed the same crime without the defend- ant's procurement, it is proper to direct an issue, whether the plaintiff has been guilty of adultery without the defendant's procurement, etc., but not whether such adultery, if com- mitted, has been forgiven ; the latter question not being raised by the pleadings. 3 Barb. Sup. Ct. 236. 50. N'ew York. Where the only acts of adultery occurred after the filing of a bill for divorce, it will not be granted. 4 Edw. Ch. 296. 51. New York. Though it is not necessary to prove the / direct fact of adultery, it is necessary to show that adultery | is the only necessary conclusion from the facts of the case. ^ 3 Sandf. Sup. Gt. 307. ■ 52. North Carolina. In North Carolina, a divorce a vin- culo will not ije granted, unless one of the parties has been guilty of adultery after their separation, even though that separation has been caused by the continued adultery of the offending party. Mere confession of adultery is not suffi- cient evidence to support a decree of divorce. 10 Ired. 506. 53. New Hampshire. Proof of adultery on the part of the libellant is no bar to a divorce grounded on the subsequent adultery of the respondent, if there have been an intervening condonation of the libellant's crime. 15 N. Hamp. 159. 54. New York. A divorce for adultery under the New York statute is prospective in its operation, and has no other effect upon the marriage than such as is declared by the statute. 4 Comst. 95. 55. New York. At common law, a divorce avoided the marriage ah initio, and was not granted for adultery or other causes happening after the marriage. A divorce or separa- tion which recognized the validity of the marriage and 70 LAW OF DIVORCE. avoided it for causes subsequent, was a mensa et thoro merely, and such a divorce was for adultery. lb. 56. Alabama. Adultery committed by the wife when insane, is no ground for a divorce on the application of the husband. 19 Ala. 522. 57. IS'orth Carolina. It is not necessary in a bill for divorce on the ground of adultery, to negative a condonation. Especially is this the case where a divorce a mensa and alimony are sought. 1 Jones Eq. 239. 58. Alabama. Adultery, constituting ground for a di- vorce, may be committed by sexual connection with a slave. 29 Ala. 313. 59. 'New Jersey. Charges of adultery in a bill for divorce a mensa et thoro only are improper, and evidence in support of them will not be received. 2 Stockt. 261. 60. Georgia. When one of the parties, knowing the other to have committed a breach of the marriage duties, yet con- tinues or rene'^s cohabitation, the law presumes the offence is condoned. 24 Geo. 238. 61. Mississippi. Condonation is but a forgiveness on con- dition of subsequent fidelity ; if not kept, the rights of the injured party are restored, as if there had been no condona- tion. 3 George 279. 62. Mississippi. The doctrine of condonation is not ap- plied with strictness to the rights of the wife as it is to the husband ; her want of control over him, the difficulty she may find either in quitting his house, or withdrawing from his bed, renders it not improper that she should, for a time, show a patient forbearance ; and therefore condonation, from the mere fact of cohabitation, ought not to be implied against her, after the discovery of the husband's criminal conduct. lb. 63. Missouri. After one of the parties has been wronged in a way that would warrant a divorce, if he or she volun- tarily cohabits with the other party, it is a condonation of the offence. 27 Mis. 383. 64. Illinois. In a suit for divorce on the ground of adul- tery, where condonation is set up for a defence, this is always accompanied not only with the implied condition that the injury shall not be repeated, but also that the offending ADULTERY. 71 party will ever after treat the other with conjugal kindness; and crvLelty, pendente lite, will invalidate such a defence, even without the filing of a supplemental bill. 19 111. 334. 65. Vermont. Adultery by an insane person is not cause for a divorce. 31 Vt. 328. 66. New York. Even if the adultery of the defendant be proven, yet a divorce will not be decreed, if the com- plainant have been guilty of adultery committed without the procurement or connivance of the defendant. 31 Barb. 330. 67. New York. In an action for divorce a mensa et thoro, the adultery of the complainant cannot be set up as a ground for affirmative relief. 2 Hilton 547- 68. Georgia. On a libel by the husband on the ground of the wife's adultery, a visit to and friendly interview with the wife, desiring her to come home, after the filing of the libel, is not a condonatiom 29 Geo. 718. 69. Alabama. Adultery committed by the wife while in- sane, does not bar her right to alimony. 33 Ala. 187. 70. Massachusetts. A wife who has wilfully and utterly deserted her husband for five years, without fault on his part during that time, cannot maintain a libel for divorce against him, on account of his subsequent adultery- But she may maintain her libel, if before the expiration of five years he has taken another woman for his wife. 4 Allen 39. 71. Uew Jersey. Adultery is not ground for divorce, if the husband have been reconciled to his wife since its com- mission, or knowingly retains her thereafter. 2 Beasley 281, 72. B'ew York. Where adultery has been duly proved, connivance destroys all claim to remedy by way of divorce. 41 Barb- 114- 73- Louisiana- The charge of adultery, preferred by the wife to serve as a basis for a judgment for divorce, does not itself amount to a defamation as a ground of divorce, upon the failure of the former to sustain the allegation by proof- 16 La. An- 94 74. New York. In a husband's suit for divorce for the wife's adultery, his adultery cannot be set up, under the coda 72 LAW OP DIVORCE. of New York, as a counterclaim, and if proved, will not entitle her to a divorce. 40 Barb. 9. 75. Louisiana. Positive or direct evidence is not neces- sary to establish adultery. "Where, from the circumstances proven, no other inference can be drawn, but that there was an improper intimacy or illicit connection between the par- ties, the fact of adultery or concubinage will be considered as substantiated. 16 La. An. 4. 76. New York. "Where references are directed in actions of divorce for adultery, the referee must find not only as to the fact of adultery, but also as to all other material facts. 41 Barb. 114. 77. New Jersey. "Where the wife applied for a divorce on the ground of adultery, it was held, that, if the wife, having knowledge of the adultery, or reason to believe it, continued voluntarily to live with her husband, except for imperative reasons, it constitutes a condonation of the of- fence, and she is not entitled to a divorce. If she has con- tinued to live with him after the offence, there should be facts or circumstances to show that the offence has not been condoned, or a clear, express, and unequivocal denial by the complainant of knowledge of the husband's infidelity during the continuance of their cohabitation, and a report of the master adverse to the condonation. 1 McCarter 374. 78. New Hampshire. The mere admissions of the libellee are not sufficient to prove adultery in a divorce suit. 45 N. Hamp. 121. 79. Arkansas and Tennessee. A husband who cohabits with his wife after knowledge of her having committed adultery, cannot maintain a bill for a divorce on the ground of such adultery. 23 Ark. 615 ; 2 Cold. 123. 80. Tennessee. A divorce from bed and board was granted a wife, upon proof that her husband had made gross and unfounded accusations of adultery against her, and had at- tempted to induce a negro servant to criminate her in adultery with himself. 2 Cold. 123. 81. New Jersey. To establish the existence of adultery, the facts proved must be such as cannot be reconciled with probability and the innocence of the parties, and such as ADULTERY. 73 would lead the guarded discretion of a reasonable and just man to that conclusion. 1 Green 122. 82. iN'ew Jersey. To prove adultery by circumstantial evi- dence, tv/o points are to be ascertained and established — the opportunity for the crime, and the will to commit it. Where both are established, the court will infer guilt. lb. 83. Ifew Jersey. Proof that a husband, within six months of his marriage to a widow, was afflicted with vene- real disease, does not establish his adultery against his sworn denial. 2 McCarter 162. 84. Tennessee. Although the proof clearly establishes the adultery of the defendant, in a proceeding for divorce, yet if nothing affirmative of the complainant's character for virtue and chastity appears in the proof, his bill will be dis- missed. 2 Cold. 375. 85. Massachusetts. The fact of eighteen years' cohabita- tion after the act of adultery for which the divorce is prayed is no ground of defence, if the libellant was meanwhile ignorant of the act. 97 Mass. 381. 86. Massachusetts. A husband cannot maintain a libel for the wife's adultery and desertion, where it appears that he himself has committed adultery during that time. 97 Mass. 531. 87. jN'ew York. In an action of divorce for cruelty, adultery cannot be set up in defence, and an absolute divorce asked by way of counterclaim. 3 Rob. 614. 88. Alabama. Where a husband and wife each file a bill for divorce, the one for cruelty and the othet for adulter}^ and both the charges are sustained, each will be considered a bar to the other ; and a divorce to both will be denied. 39 Ala. 348. 89. N'ew Jersey. In an action for divorce on the grdund of adultery, the proof of the adultery must be clear and positive. 2 Green 101, 453. 90. N'ew York. "Where the charge was adultery, the defendant alleged, in her answer, that the plaintift", in March, 1867, in the cities of New York and Brooklyn, committed adultery, and thereby contracted a venereal disease, which he communicated to the defendant some time about the month of March, 1867. Held, that the allegations in the 74 LAW OF DIVORCE. answer were sufficiently specific, and that the adultery of the plaintiff was well pleaded. 7 Rob. 276. 91. New Jersey. Proof in actions for adultery must not only be clearly and directly sworn to, but the proof must be entitled to and command belief. 4 Grreen 37. 92. Delaware. A return to conjugal society and embraces, after knowledge of adultery, though a defence against a suit for divorce, will not avail if subsequent acts of adultery be proved, but these acts ought to be alleged. 2 Har. 38. 93. Michigan. 'No decree of divorce can be granted for adultery which is not charged in the bill, with specifications of time, place, and circumstances. 20 Mich. 222. 94. New York. A decree for adultery will be granted, where it appears the defendant committed the act while sane, although, for several years last past before the suit was brought, he has been adjudged a lunatic. 40 How. Pract. 328. 95. Illinois. Adultery must be proved by direct or cir- cumstantial evidence, and not on mere suspicion or even on bad reputation. 55 111. 162. 96. New Jersey. "Where, in a suit for divorce, adultery is pleaded in recrimination, the acts of adultery must be specified in the same manner required in a bill or petition for divorce on the ground of adultery. 6 C. E. Greene 331. 97. [N'ew Jersey. A party who has negatively violated the marriage contract in its two most vital points, to love and to cherish, and has only performed it in the last and least, to support, comes into a court of equity with an ill grace to complain of a positive breach by the party whom he first injured. 6 C. E. Greene 36. 98. New Jersey. A written confession of adultery form- ally' sworn to will have no weight as evidence, when made under circumstances which compel the belief that it was not fairly obtained or understandingly made. lb. 99. New Jersey. It is not sufficient, to convict parties who may be supposed willing to commit adultery, to prove that they were in a position where it was possible to commit it. It must be shown that they were together under suspi- cious circumstances, which cannot be easily accounted for ADULTERY. 75 unless they had that design, or which could not be well explained without it. 6 C. E. Greene 246. 100. New Jersey. Proof that the parties charged were together in a place where, and at a time when, it was possible for them to have been guilty of adultery is not sufficient to warrant a decree, nor will this defect of proof be supplied by evidence that defendant had many years before lived in concubinage with a married man. 5 C. E. Greene 100. 101. New Jersey. Unsupported evidence by an alleged paramour as to a wife's antenuptial incontinence is insuffi- cient to overcome her positive denial. Even if fully proved, such incontinence would be no foundation for a divorce, nor admissible to support proof of her subsequent adultery. 6 C. E. Greene 61. 102. New Jersey. A husband, who connives at or assents to adultery by his wife with one person, will be deemed as assenting to it with others, and will not be entitled to a divorce for a subsequent act of adultery with a different person. It will not affect the case that the act of adultery at which the husband connived was not committed. A man cannot claim advantage of his wife's incontinence, when caution on his part would have prevented it. lb. 103. Massachusetts. On application for a divorce for adultery committed with a certain person, evidence of acts of adultery by the libellee with that person out of the com- monwealth and after the filing of the libel, is competent to show the nature of the intercourse between them at the time when the adultery is alleged in the libel to have been com- mitted. 101 Mass. 111. Vide the following sections under their respective divi- sions : — Jurisdiction and Domicile, §§ 1, 4, 7, 15, 16, 18, 19, 23,. 35, 36, 64, 103. Petition or Libel, §§ 1, 4, 5, 6, 13, 16-30, 38, 31, 34, 38, 43, 55, 57, 73, 76, 79-81, 84, 87-89, 90, 91. Practice, §§ 3, 6, 7, 9, 13, 13, 15, 16, 19, 33, 35, 36, 39, 33, 33, 39, 47, 48, 67, 79, 104, 117, 160, 161, 163, 166, 173. Evidence, §§ 4-6, 8, 9, 17, 18, 30-34, 36, 39, 35, 36, 38-40, 46, 48, 49, 53, 59, 63, 64, 73, 93, 100, 101, 107, 113, 114, 117-119, 130. Propm-ty, §§ 6, 10, 30, 35, 93, 99, 105, 131. 76 LAW OP DIVORCE, Custody of Ohildren, § 8. Decrees of other States, §§ 7, 29. Position after Divoree, g§ 13, 13, 16, 30, 31, 38, 30-34, 36. Alimony, §§ 7, 8, 10, 19, 67, 77, 98, 100, 101, 103, 104, 173, 195, 197, 303, 312, 338, 251, 303, 335. ©ntelts^ INDEX OF SECTIONS. Alabama, 14^-16, 17, 33-36, 43, 48- ,50, 59, 66. Arkansas, 37, 28. California, 73-75, 83, 116. Connecticut, 11-13. Georgia, 43, 70, 85, 86, 88, 97, 98. Illinois, 46, 53, 68, 109, 115, 123. Indiana, 83, 99. Iowa, 77, 78, 89, 100. Kentucky, 18, 23. Louisiana, 60, 69, 81. Maryland, 26, 31, 33, 40, 41, 118. Massachusetts, 1-4, 47, 96, 135-127. Michigan, 113, 114, 124. Mississippi, 8. Missouri, 51, 61, 76. North Carolina, 54, 64, 65, 84, 108. New Hampshire, 5, 6, 9. New Jersey, 79, 80, 105, 107, 132, 138. New York, 15, 21, 24, 25, 57, 58, 67, 95, 101, 103, 117, 119-121. Ohio, 10. Nevada, 110, 113. Pennsylvania, 19, 20, 32, 63, 71, 73, 90-94. Tennessee, 53, 106. Texas, 39, 30, 37, 38, 44, 45, 55. Vermont, 39. Wisconsin, 56, 63, 111. 1. Massachusetts. Threats of violence without an actual assault are not a legal cause for a divorce a mensa et thoro. 2 Mass. 150. 2. Massachusetts. Such a divorce will be granted upon proof of the exercise of force by the respondent upon the libellant without provocation. 4 Mass. 587. 3. Massachusetts. The extreme cruelty in the statute tneans personal violence and answers to the scevitia of the civil law. 3 Mass. 321. ' 4. Massachusetts. A divorce a mensa will not be refused upon proof that, after the personal violence complained of was committed, the parties had lived together. 6 Mass. 69. 5. E'ew Hampshire. Menaces of bodily harm, coupled with harsh treatment and neglect in sickness, and a reason- able apprehension that the wife might be subjected to dis- ease, if she cohabited with her husband, constitute a case CRUELTY. ' 77 of extreme cruelty, authorizing a divorce in New Hamp- shire, though there has been no actual personal violence. 7 K Hamp. 196. 6. New Hampshire. A wife is not entitled to a divorce on the ground of ill-treatment, if such ill-treatment has been drawn upon her by her own misconduct, unless the injury done her is out of proportion to the offence on his part. 8 N. Hamp. 307. 7. Delaware. A divorce a vinculo will be granted in Dela- ware for extreme cruelty. 3 Har. 8. 8. Mississippi. In Mississippi a divorce a mensa ei thoro was decreed for continued ill-treatment. Walker 474. 9. New Hampshire. Where extreme cruelty is alleged as a cause of divorce, there should be a specification of the acts of cruelty complained of. 8 N. Hamp. 160. 10. Ohio. HI usage an:d cruelty to support a claim for divorce must be proved aliunde. Wright 212. 11. Connecticut. A decree of divorce on the ground of intolerable cruelty, will not be granted, unless the acts com- plained of are in fact intolerable and as cruel, at least, as those for which, under the head of extreme cruelty^ the courts in G-reat Britain and elsewhere divorce a mensa et thoro. 17 Conn. 189. 12. Connecticut. Vulgar, obscene, and harsh language, with epithets suited deeply to wound the feelings and excite the passions, but not accompanied with violence to the per- son, do not constitute such cruelty. Nor does the exclusion from the house by the husband of his wife's relatives and friends, and his forbidding her to visit them, constitute such cruelty, lb. 13. Connecticut. Where the husband repeatedly forced his wife to occupy the same bed with himself, when, in con- sequence of her ill health, it was indelicate, improper, and injurious to her health to do so, and did endanger her health, although this effect was not foreseen or intended by him, it was held that such conduct did not constitute intolerable cruelty within the statute. lb. 14. Alabama. A bill, filed for divorce on the ground of cruelty, must state the facts which constitute such cruelty. 78 LAW OF DIVORCE. But this can only be taken advantage of by assigning it as a cause of special demurrer. 10 Ala. 527. 15. New York. In a suit by a wife for a separation on the ground of cruelty, nothing in the answer will be con- sidered as impertinent which tends to show the conduct of either against the other. In addition to a denial of such treatment, he may allege, in his answer, conduct on her part calculated to irritate and provoke him, and to excite his jealousy or alienate his affections from her. 11 Paige 46. 16. Alabama. To constitute legal cruelty which will authorize a divorce, there must be actual violence committed, attended with danger to life, limb, or health ; or there must be reasonable apprehension of such violence. 11 Ala. 620. 17. Alabama. The throwing a bucket of water on the wife in bed, with a threat of further violence, if she did not leave the house, is legal cruelty. Abusive language, and other unbecoming conduct, not amounting to legal cruelty, may be received in aggravation of an act of cruelty. lb. 18. Kentucky. When a husband's conduct towards his wife is such an habitual course of persecution, as to render the bond of matrimony a bond of wretchedness and degra- dation, she may leave him and have alimony. 7 B. Mon. 424. 19. Pennsylvania. Cohabitation, after cruel treatment and abuse, is not a bar to divorce for that cause, although it is so in cases of adultery. The distinction between the cases seems to be founded on a just conception of the conjugal relations. 6 Barr 449. 20. Pennsylvania. It is possible that a single act of cruelty on a single occasion may be so severe, and attended with such corresponding circumstances, as might justify a divorce. But it is not every single touching of the wife's person in anger, at a moment of sudden excitement or pas- sion, that would sanction a divorce. 1 Grant 389. _ 21. New York. The cruelty which entitles a wife to a divorce is actual personal violence, or the reasonable appre- hension of it; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe. 1 Barb. Ch. Cases 344. 22. Pennsylvania. To render the condition of a wife into- CRUELTY. 79 lerable and her life burdensome, it is not necessary that there should be blows, or cruel and barbarous infliction of batteries that endanger her life. There may, without that, be such indignities' to her person as to render her life a bur- den. All treatment which violates the sentiments of affec- tion, delicacy, and honor habitually and constantly, and proceeds avowedly from hatred, revenge, and spite, and which renders even the hours devoted to repose hours of weeping and distress, must render a woman's condition in- tolerable and her life burdensome. 9 Barr 166. 23. Kentucky. That a wife continued to live with her husband after acts of violence, is proof that she did not con- sider herself in danger. 8 B. Mon. 120. 24. ]^ew York. To obtain a limited divorce, there must be ill-treatment and personal injury, or a reasonable appre- hension of personal injury. Words of menace accompanied by a probability of bodily violence will be suflicient. It may be enough, if they are such as inflict indignity and threaten pain. 4 Barb. Sup. Ct. 217. 25. New York. Condonation of cruel treatment is always subject to the condition, that the husband shall afterwards treat his wife with conj agal kindness. If condonation be inferred from cohabitation, the presumption may be rebut- ted, lb, 26. Maryland. Under the act of 1841 in Maryland, a di- vorce a mensa et thoro will be decreed in a case of great cruelty and of harsh usage for a series of years, practised by the husband towards the wife. 4 Gill. 105. 27. Arkansas. In order to obtain a divorce and alimony for cruelty and personal indignity, it is not necessary that the .wife should be entirely without blame; and exhibitions of justly aroused passion on her part cannot defeat her of alimony, when it appeared that she had submitted to years of insult. 4 English 507. ' 28. Arkansas. The fifth cause of divorce in the Arkansas statute gives to the courts a broader jurisdiction than that exercised by the civil and ecclesiastical courts for legal cruelty. Personal indignities, such as rudeness, unmerited reproach, contempt, studied neglect, open insult, etc., and other plain manifestations of settled hate, alienation, and 80 LAW OF DIVORCE. estrangement. They must be habitual, continuous, and per- manent, causing extreme and unmerited suffering, although they are not alitended with bodily harm. lb. 29. Texas. A series of studied vexations and deliberate insults and provocations would, under the statute, be suffi- cient cause of divorce, without apprehension of personal violence or bodily hurt. The jury must draw their own conclusions from the facts proved. The opinions of witnesses are inadmissible. 3 Texas 79. 30. Texas. The acts complained of must be specifically stated, as to the time, 'place and material circumstances. General charges of cruelty, adultery, excesses, etc., are not sufficient to sustain the action. The terms " excess, cruel treatment, and outrages" employed in the statute, are con- clusions from facts, and the acts which constitute them must be stated. 3 Texas 168, 336. 31. Maryland. Upon an application for a divorce a mensa for cruelty under the act of 1841, there must be a series of acts of personal violence, or danger to life, limb, or health shown, in order to justify a decree of separation, and even if acts of personal violence are shown, the court will consider whether they were for trivial causes or without cause, or occasioned by the wife pushing the patience of the husband to the last extremity. 2 Md. Ch. Decis. 335. 32. Maryland. The rule prescribed by the common law and the law of England, is applicable to the Maryland act of 1841, allowing a divorce for cruel treatment, and the term (cruelty) used in that act, must have the same interpre- tation as that given by the English ecclesiastical courts. Ih. 341, 393. 33. Alabama. A divorce will not be granted for cruel, barbarous, and -inhuman treatment, unless there has been either actual violence committed, attended with danger to life, limb, or health, or a reasonable apprehension of such violence. 19 Ala. 307. 34. Alabama. Proof that the defendant was habitually intoxicated, that he had used profane and abusive language towards his wife, threatening to inflict personal violence and actually attempted to strike her, and that on one occasion he kicked her, establishes a case of legal cruelty, lb. CRUELTY. 81 85. Alabama. Acts of cruelty, committed after a recon- ciliation, revive the former cruelty, condonation being always conditional. lb. 36. Alabama. A proposal made by the wife, but rejected by the husband, to return to his house, from which she had been driven by his cruelty, cannot be construed into a con- donation. 19 Ala. 363. 37. Texas. To constitute excess, cruelty, and outrage within the meaning of the statute, it is not necessary that indignities or violence be offered to the person of the wife. If the act be an outrage on her feelings, though done to third persons, it is good ground for divorce. 6 Texas 3. 38. Texas. Reconciliation or condonation is not a per- petual bar against complaint for previous offences. Where there are subsequent offences, or reasonable apprehension of further violence, the antecedent offences may be averred and shown. lb. 39. Vermont. Condonation is always conditional, and has for its consideration the promise, not only that the former injuries shall not be repeated, but that the forgiving par- ties shall in future be in all respects treated kindly and restored to conjugal rights. It is not necessary that' the former injuries be repeated to cancel the condonation. 25 Vt. 678. 40. Maryland. The fact that " cruel treatment" was the result of the too frequent use of intoxicating drink on the part of the husband, does not diminish the right of the wife to relief. 3 Md. Ch. Decis. 51. 41. Maryland. Condonation on the part of the wife is not pressed with the same rigor as condonation on the part of the husband ; yet where the wife has forgiven the hus- band for injuries inflicted upon her, and. the parties have become reconciled, courts are averse to listen to the old grounds of complaint. lb. 42. Georgia. After a separation between husband and wife, and condonation on the part of the latter, the parties lived together two years. The wife then filed a bill for a divorce on the ground of " cruel treatment." There was no proof of cruel treatment subsequent to the condonation. The bill was therefore dismissed; 12 Geo. 201. 6 82 LAW OF DIVORCE. 43. Alabama. If a wife still continue to live with her husband two years after a gross act of violence on his part,. it will not amount to condonation, nor estop her from sub- sequently complaining of it in a bill of divorce. 23 Ala. 785. 44. Texas. Reconciliation is a bar to a divorce for pre- cedent acts of cruelty, only where there is no further ill treatment. If there be fresh cruelty or outrage, the former acts will be revived and the impediment of the reconcilia- tion removed. Otherwise, in case of condonation of acts of adultery. 7 Texas 538. 45. Texas. An apprehension of danger to life, limb, or health is the ordinary criterion of cruelty. lb. 46. Illinois. Where the statute requires personal violence as a ground for divorce, unkind treatment, threats of per- sonal violence, abusive language, and opprobrious epithets are not sufficient to authorize a decree of divorce. 15 111. 186. 47. Massachusetts. Cohabitation for a single night im- mediately after acts of cruelty by a husband towards his wife, is not such a condonation as will bar a libel by the wife for a divorce a mensa, if the violence of his subsequent conduct cause a reasonable apprehension in her mind that she can no longer cohabit with him without imminent dan- ger of further cruelty. 2 Gray 434. 48. Alabama. Cruelty, where it does not affect life, limb, or health, is frequently a relative term, the meaning of which must, be determined by the particular circumstances of each case. Between persons of education, refinement, and deli- cacy, the slightest blow in anger might be cruelty, while between persons of a different character and walk in life, it might not mar, to any great extent, their conjugal relations, nor materially interfere with their happiness. 27 Ala. 222. 49. Alabama. Specific acts of cruelty, which are esta- blished by the evidence, but not charged in the bill, cannot be made the foundation for a decree of divorce, although the court may give weight to them as corroborating other acts specifically alleged in the bill. lb. 50. Alabama. If the evidence shows, that the wife, by her own misconduct, has brought on herself the ill treatment CRUELTY. 83 of which she complains, and which is not wholly dispropor- tioned to the provocation, she is required to make out a much stronger case for relief, than when her own conduct has been entirely blameless. On this ground, a divorce was refused in this case, and each party ordered to pay half the costs. Ih. 51. Missouri. Under the act of 1849, it is not necessary that indignities should be offered to the person, to be the ground of divorce. 4 Bennett 355. 52. Tennessee. Mere acerbity of temper, occasional re- proaches or rude language on the part of the husband to- wards the wife — or even a threat of violence, when none is offered, do not constitute a sufficient ground of divorce. 2 Sneed 716. 53. Illinois. In Illinois, it is not necessary that extreme and repeated cruelty should be endured by a party for the space of two years, before a divorce can be decreed for that cause. 16 111. 85. 54. N'orth Carolina. The statute authorizing a divorce a mensa et thoro, in cases where the husband offers such in- dignities to the wife, as render her condition intolerable, or her life burdensome, does not require that he should strike or touch her body ; a false charge of infidelity to her mar- riage vow, a refusal to recognize her as his wife and to sleep in the same bed with her, are sufficient. 2 Jones Eq. 392. 55. Texas. The charge of adulterous intercourse against the wife, if groundless, is undoubtedly an act of gross cruelty. 14 Texas 356. 56. Wisconsin. Cruel and inhuman treatment is such conduct, as would render it unsafe and improper for the wife to live with her husband. 4 Wis. 135. 57. New York. A condonation is a conditional forgive- ness ; it implies that there shall be a continuation of kind treatment ; and a subsequent repetition of the -personal abuse affords not a substantial cause of separation, but revives all those which existed prior to the condonation. 22 Barb. 97. 58. 'New York. And slight acts of abuse, which of them- selves would not sustain a bill, are a breach of this condi- tional reconciliation, and revive all antecedent acts of cruelty and misconduct. lb. 84 LAW OP DIVORCE. 59. Alabama. Irritability of temper on the part of tbe husband, producing ungovernable passion and occasional acts of violence, renders cohabitation unsafe, and from which the wife should be protected, although she may not have been wholly blameless. When the husband displays such passion, that it is unsafe for the wife to continue in his society, it is immaterial from what provocation such violence may have originated. 28 Ala. 315. 60. Louisiana. Under the Louisiana law, disappointment in the marriage relation, and mere incompatibility of temper, are not causes for a judicial separation; excesses, outrages, and cruel treatment, of a nature to render the conjugal life intolerable, are sufficient, but with the qualification that the party complaining must be comparatively innocent. Mutual insults and outrages, the fruit of mutual provocations, unless there be a great disproportion of guilt, furnish no ground of action to either. 12 La. An. 882. 61. Missouri. In an action of divorce for cruel and bar- barous treatment, it is not sufficient to prove specified in- stances of such treatment, but a continued course of bad conduct must be established on the part of the defendant, together with reasonable- propriety on the part of the com- plainant. 5 Jones 545. 62. Wisconsin. The cruelty which lays a legal foundation for a divorce, must be unmerited and unprovoked. If pro- voked by the wife's misconduct, her disregard of her conjugal duties, frequenting houses of ill fame, etc., it will not be sufficient. 6 Wis. 449. 63. Pennsylvania. Under the act of May, 1854, the courts are empowered to grant a divorce a vinculo to the husband for cruel and barbarous treatment upon him inflicted by the wife, by which the condition of the husband is rendered intolerable, or his life burdensome. No divorce a mensa is mentioned, although under this act, the court will allow alimony and support to the wife as her husband's circum- stances will admit. 10 Casey 233. 64. North Carolina. ' Cruelty towards the children of a wife by a former husband, especially if not charged as an insult or indignity to her, is not a ground for a partial di- vorce. 5 Jones 202. CRUELTY. 85 65. North Carolina. Ill breeding, coarse and insulting language, jealousy, and charges of adultery, not accompanied with acts and threats of violence, or by an abandonment of the marriage bed, were held not sufficient ground for such a divorce. lb. 66. Alabama. Actual violence on the part of the hus- band is not necessary to constitute legal cruelty ; any con- duct on his part, which furnishes reasonable apprehension that the continuance of the cohabitation would be attended with bodily harm to the wife, is cruelty. 30 Ala. 714. 67. New York. A divorce a mensa will be granted, on the application of the husband for the same causes (cruelty or desertion) which entitle the wife thereto; a^d he, as respon- dent, on making out such a case, is entitled to affirmative relief. 2 Hilton 547. 68. Illinois. Austerity of temper, sallies of passion, or abusive language do not constitute such extreme and re- peated cruelty within the statute, as to authorize a decree of divorce. 21 111. 438. 69. Louisiana. It is only where a subsequent cause arose, sufficient to base an action for a separation, that the plaintiff will be entitled to urge a cause precedent to the reconcilia- tion, 14 La. An. 386. 70. Georgia. To a libel for cruelty, adultery may be set up in recrimination. 29 Geo. 718. 71. Pennsylvania. The law does not permit a divorce for any single act of violence or abuse, however vulgar, rude, harsh or unchivalrous, but requires proof of such a course of conduct or continued treatment, as renders the libellant's condition intolerable, and her life burdensome. The jury should look at the whole evidence, and determine from it whether the general conduct of the respondent was in ac- cordance and consistent with the act complained of. 1 Wright 225. 72. Pennsylvania. Where the wife returned to her hus- band's house with her trunk and children on a winter even- ing, and was ordered out of the house by her husband, who pushed her from his door, although she begged permission to remain, it was held good cause for a divorce a mensa. Nothing amounts to a bar against such suit, except such 86 LAW OF DIVORCE. facts, as would entitle tlie defendant to a divorce. 1 Wright 443. 73. California. Indignities provoked by the complaining party are no ground for divorce, unless in cases where the retaliation is excessive. 14 Cal. 459. 74. California. Extreme cruelty in our statute is the same as the scevitia or cruelty of the English courts ; it is any conduct in one of the parties, which furnishes reasonable apprehension that the continuance of the cohabitation would be attended with bodily harm to the other. Thus, actual violence, not of itself attended with serious injury, nor of itself to cause reasonable apprehension for the future is not a cause of divorce, if it be the only act of the kind, and done under the influence of strong passion provoked by the plaintiff. 14 Cal. 76. 75. California. The acts of cruelty, which are made a cause of divorce, need not be persistent, nor a fixed habit. 19 Cal. 627. 76. Missouri. Evidence that the libellant was an indus- trious and exemplary woman, that the respondent had be- come very intemperate, that, while under the influence of liquor, he had abused the libellant, sometimes ejecting her from his house, and had used abusive language, charging her with a want of chastity, was held suflacient to support a decree for a divorce. 31 Miss. 479. 77. Iowa. A husband brought a bill for divorce, alleging that his wife for several years had beaten and bruised him without good cause ; that within twelve months of the time of filing the petition, she had often threatened to poison hini ; that his occupation required him to keep poisons about the house ; that she had many times seized him and pulled out his hair by the handful, and that he feared that if he continued to live with her, his life would be endangered. A divorce was decreed. 2 Withrow 133. 78. Iowa. Such treatment of a wife, as will afiect her mind so as to destroy her health, and ultimately to endan- ger her life, is sufficient cause for divorce. 6 With. 266. 79. New Jersey. A single act of personal violence, stand- ing alone, would not be sufficient to warrant a decree of divorce, but the question is, whether the act was committed CRUELTY. 87 under circumstancea so as to furnish a reasonable apprehen- sion that the continuance of the cohabitation would be at- tended with further personal injury. The court will not be governed by the degree of actual violence, but will protect from the danger reasonably to be apprehended thereafter by reason of such violence. The court interferes, not so much to punish past violence, as to protect from future injury, and will interfere when thfe evidence shows a reasonable appre- hension of bodily hurt. 3 Stockt. 195. 80. N'ew Jersey. The cruelty must be bodily harm, and not mere mental suffering, in order to justify a decree. lb. 81. Louisiana. It is proper, in deciding whether one sin- gle act of cruelty on the part of the husband towards, the wife is sufficient to entitle her to a separation from bed and board, to take into consideration the age, habits, and mode of life of the parties. 15 La. An. 593. 82. California. Where a husband was in the habit of using vile and abusive language towards his wife, causing her much mental suffering, and fits of illness, threatening permanent injury to her health ; held, that the wife was en- titled to a divorce, on the ground of cruelty. 22 Cal. 358. 83. Indiana. A wife obtained a divorce for cruelty and gross indignities practised upon her by her husband, although the jury found that she had endeavored to discharge the duties of a faithful and affectionate wife. 23 Ind. 546. 84. North Carolina. There are circumstances under which the striking of his wife with a horsewhip or switch by the husband and inflicting bruises, would not be the ground of a divorce. Where such a violence is alleged, it is necessary that the petition should set forth particularly and specially, what the wife did and said immediately prior to and during such use of force. 6 Jones Eq. 322, 85. Georgia. If a husband inflict on his wife, by violence, bodily pain, or if he threaten or attempt to commit adul- tery, or if he purse and abuse her, or use insulting and op- probrious language, he is guilty of cruel treatment towards her ; and the same conduct on the part of the wife consti- tutes the same ground of divorce. 31 Geo. 625. 86. Georgia. That a wife lives with her husband after 88 LAW OF DIVORCE. receiving ill treatment from him, is no evidence that she consents to such ill treatment. lb. 87. "Wilful communication of a venereal disease to the wife is cruelty, and, primd facie, the husband's state of health is presumed to be within his own knowledge. English Cases cited U. S. Annual Digest for 1866, page 283. 88. Georgia. When a wife sues for divorce on the ground that her husband whipped her, he cannot justify by showing opprobrious or abusive language on her part, because it is not " like conduct." But evidence of such language should be considered upon the question whether the divorce, if granted, should be made more or less favorable to the libel- lant. 31 Geo. 625. 89. Iowa. To authorize a claim for divorce mnder .the Eevised Statutes, the cruel treatment should be inhuman, and such as to endanger life. 19 Iowa 33. 90. Pennsylvania. It is not all bad conduct of a wife which entitles a husband to a divorce, and a legal justifica- tion of his refusal to receive his wife, must be such as would entitle him to a divorce if he were the applicant. The act of May, 1854, extended to the husband a right to a divorce where the wife shall have by cruel and barbarous treatment rendered his condition intolerable and life burdensome. Personal indignities, a cause which former acts had carefully distinguished from cruel treatment is not added to the hus- band's causes for divorce, although the wife may obtain a divorce for such cause. 12 "Wright 226. 91. Pennsylvania. The cruel and' barbarous treatment spoken of in the act of 1854 is the same as that described in the acts of 1815 and 1817, notwithstanding the slight dif- ference of language. Judge King, in 1 Pars. Eq. Cases, de- fined cruelty as " actual personal violence, or the reasonable apprehension of it, or such a course of treatment as endan- gers life or health, and renders cohabitation unsafe." Ih. 12 P. F. Smith 206. 92. Pennsylvania. The legislature cannot decree a di- vorce in any case where by law the courts have such power, and where the legislature oversteps the boundary of its limited power, its act is void and must be inquired into. The cause of divorce ia inquirable into as a fact, when not CRUELTY. 89 set forth in the act, and the actual relations between hus- band and wife presented to the legislature as grounds of divorce, are the subjects of proof, as other facts are. 4 P. F. Smith 255. 93. Pennsylvania. It is not every act of cruelty on the part of the husband that will entitle the wife to a divorce — this ill treatment may or may not endanger her life. It is not necessary that there should be repeated and continuous acts of cruelty, in order to entitle the wife to a divorce, but no single act of cruelty however severe, that comes short of endangering life, is sufficient to justify a decree of divorce. 12 P. F. Smith 206. 94. Pennsylvania. "What acts or course of conduct will amount to indignities to the wife's person seem to be no- where defined, and perhaps they are incapable of specifica- tion or exact definition. But they must render the wife's condition intolerable, and her life burdensome. A single act of indignity will not be sufficient. There must be con- tinned bad treatment. These indignities need not be such as to endanger life or health. lb. 95. l^ew York. Where a divorce is asked on the ground of cruelty, adultery cannot be set up in defence, and an abso- lute divorce asked by way of counterclaim. 3 Rob. 614. 96. Massachusetts. Where a divorce is sought on the ground of cruelty, it must appear to be at least such cruelty as shall cause injury to life, limb, or health, or create a dan- ger of such injury, or a reasonable apprehension of such danger. It may be mere words, if they create a reasonable apprehension of personal violence, or tend to wound the feelings to such a degree, as to affisct the health of the party, or create a reasonable apprehension that it may be affected. 97 Mass. 373. 97. Georgia. Legal cruelty is such conduct on, the hus- band's part, as creates reasonable apprehension of danger to the life, limb, or health of the wife. 36 Geo. 286. 98. Georgia. Condonation is conditional forgiveness; on full knowledge, of antecedent guilt. These are not pre- sumed, but must be clearly proved to bar an action. After reconciliation, fresh acts of cruelty will revive acts of cruelty and, of adultery. lb. 90 LAW OF DIVORCE. 99. Indiana. Condonation is not absolute remission, bnt proceeds upon the idea of repentance, and is not operative where subsequent acts show that there was no repentance. 27 Ind. 186. 100. Iowa. Legal cruelty is that conduct which furnishes reasonable apprehension that the continuance of the cohabi- tation will be attended with bodily harm whether there be actual personal violence or not. To impair health is to jeopardize life. 23 Iowa 433. 101. Ifew York. An offer by a wife to return to the society of her husband is not a condonation unless accepted by the husband. 2 Rob. 694. ' 102. New York. Acts of cruelty by a husband, though there has been a condonation by cohabitation, will be re- vived by subsequent misconduct of a slighter nature than such as would be sufficient, of itself, to entitle the wife to a decree of separation. 10 Paige Oh. 20. 103. iffew York. To constitute such cruelty of the hus- band towards the wife as to authorize a divorce a mensa, no actual bodily injury is necessary, but occasional intoxication or occasional sallies of passion from whatever source, which do not threaten bodily harm, do not afford sufficient ground for separation. 1 Edw. Ch. 278. 105. N'ew Jersey. To entitle a party to a divorce for ex- treme cruelty, actual violence need not be shown. 1 Green Ch. 459. 106. Tennessee. A wife is entitled to a divorce, where the husband's conduct is such as to render it unsafe for her to live with him, and where her situation is rendered into- lerable by indignities habitually offered to her by him. 4 Humph. 500. 107. ITew Jersey. Where a wife has left her husband, and brought a suit for a divorce on the ground of his cruelty, a notice by him to her after such suit brought, to return to him, will be of no avail to him in defending the suit. 1 Green Ch. 459. 108. K"orth Carolina. "Where a petition for divorce al- leged that the defendant drove the petitioner with threats of violence from his house, and swore he would kill her if she did not leave, with other allegations charging adultery, CKUBLTY. 91 it was held to be sufficient ground for a divorce a mensa and alimony pendente lite. 63 N. 0. 22. 109. Illinois. "Where there is evidence of provocation on the part of the plaintift' by violence and other misconduct, it is error to instruct the jury, without qualification, that, if they find that the defendant has been guilty of extreme and repeated cruelty, it is their duty to return a verdict for the complainant. 46 111. 134. 110. Nevada. A divorce will not be granted on the ground of extreme cruelty, where it appears that the party complaining wilfully provoked the violence or misconduct complained of, unless such violence be extremely out of pro- portion to the provocation. 4 !N"ev. 395. 111. Wisconsin. "Where a husband struck his wife once, attempted to kick her, bestowed on her most abusive epi- thets, at times refused to speak to her for months, supplied her scantily with clothing, told her to depart, a divorce from bed and board with alimony was granted. 22 Wis. 658. 112. Michigan. Where a husband told his wife, if she could not behave herself she had better go, and she went without compulsion, and afterwards returned against her husband's wishes, who refused to allow her to sleep in his room, but who, subsequent to her second departure, went to her to get her to return, and she refused, it was held, that the wife had no ground for a partial divorce for cruelty. 17 Mich. 205. 113. Nevada. There may be extreme cruelty without the slightest violence; if it appear probable that the life of one of the parties will be rendered miserable by any misconduct on the part of the other, although no personal violence be apprehended, a separation should be decreed. A mere act of violence, where there is no apprehension of its repetition, and which is the result of rashness rather than malignity, does not furnish a ground of divorce for extreme cruelty, nor is there extreme cruelty,, where the complainant has wilfully provoked the violence, unless the violence be far beyond the provocation. 4 Helm. 875, 114. Michigan. Although the specific acts of cruelty must be set out in the bill, yet the evidence is not necessarily limited to the particular facts charged. Thus, acts of per- 92 LAW OF DIVOECE. sonal violence, when intrinsically and separately considered, may not justify a divorce, yet, virhen attended by habitual brutal behavior, so as to be a constant outrage upon the sense of decency and propriety of the party to be affected by them, a case of extreme cruelty within the meaning of the statute, is established. 20 Mich. 34, 115. Illinois. Where the charge is violence upon the wife, the motive which induced such violence is a most ma- terial subject of examination. The court will not dissolve the marriage tie because of violence provoked by the wife's misconduct, even though such violence should proceed to blows. But where a blow is given in a mode to endanger life or cause a serious bodily injury, unless given in strict defence of life or limb, no degree of provocation can excuse the act. 46 111.135. 116. California. If a husband, on more than one occasion, inflict violence upon the person of his wife, so that the marks thereof remain, he is guilty of extreme cruelty, which is not excused by the fact that the wife has a bad temper and scolds the husband. 37 Cal. 364. 117. ISew York. In an action by the wife for a limited divorce on the ground of cruelty, the husband cannot set up as a defence the adultery of the wife. 43 How. Pract. 238. 118. Maryland. Violent and outrageous conduct on the part of the wife, rendering the proper discharge of the duties of married life impossible, is a sufficient ground for a di- vorce a mensa et thoro. 33 Md. 328. 119. Ifew York. In an action for total separation from bed and board for cruelty, the continuance of cohabitation by the parties for a limited time after the last act of cruelty proved, is not, as in an action for divorce, conclusive of the fact of condonation. 34 How. Prac. 346. 120. 'New York. Husband and wife should not be lightly separated, or without good cause. It is the duty of the wife to live with her husband and put up with his ill nature and petulance, and bear with his infirmities, if she can do so with safety to her person, and without great personal appre- hension and discomfort. 55 Barb. 130. 121. ISew York. If the wife continue to cohabit with her husband for several months, after cruelty has been shown CRUELTY. 93 her, this implies a forgiveness, after which the court will not grant a divorce for such cause, if in the interval the husband has treated the wife kindly and given her no further cause of complaint. If additional cruelty be shown, then all the former acts may be revived and may be offered in evidence. There must have been reasonable ground of apprehension for personal safety. Words of ntenace, accompanied by a probability of bodily violence, are sufficient. lb. 122. New Jersey. Improvidence and gross intemperance with failure to support, may justify a wife in leaving her husband, but do not amount to the extreme cruelty that would justify a divorce a mensa ; much less will they convert her leaving into a desertion by him, so as to entitle her to a divorce for it. 6 C. E. Greene 248. 123. Illinois. A single act of cruelty does not constitute sufficient ground for a divorce. There must be extreme and repeated cruelty, which must consist in physical violence, and not merely in angry, abusive, or profane epithets, to au- thorize a divorce in this State. Mere angry or abusive words, menaces, or indignities do not constitute cruelty, within the meaning of our statute. 53 111. 394. 124. Michigan. "While it is true, that in a bill for divorce on the ground of cruelty, the specific acts, on which the charge rests, must be set out in the bill, the evidence is not necessarily limited to the particular facts charged. Evidence of other facts which serve to give character to the specified acts proved, is admissible. 20 Mich. 34. 125. Massachusetts. The mere neglect of a husband, with no circumstance of aggravation, to provide maintenance for his wife and children for fifteen years, during which time she has supported the children from her own earnings, is not such gross or wanton and cruel neglect, as will sustain a libel in her behalf for divorce. 104 Mass. 195. 126. Massachusetts. To sustain a libel for divorce for the cause of extreme cruelty, there must be evidence of personal violence, intentionally inflicted, of such a character as to endanger the life, limb, or health of the libelleej or create reasonable apprehension of such danger. 104 Mass. 198. ,127. Massachusetts. Any condonation by the wife of her husband's cruelty is on condition, implied, if not expressed. 94 LAW OP DIVORCE. that he will, in future, treat her with conjugal kindness, and a breach of this condition will revive the right to main- tain a libel for the original offence, and may consist in con- duct which would not of itself sustain such a libel. 100 Mass. 150. 128. New Jersey. Actual personal violence, not very great, nor such as standing alone would warrant a decree of separation, when accompanied by inhuman, coarse, and brutal treatment towards the wife, rendering it unjustifiable that she should be compelled to live with her husband, will entitle her to a decree of divorce a mensa et thoro and to alimony. In this case the custody of the children was adjudged to the mother. 5 C. E. Greene 97. Vide also the following sections under their respective divisions: — Desertion, § 96. Jurisdiction, % 109. Petition or Libel, §§ 1, 4, 8, 9, 18, 30, 26, 27, 34, 39-41, 64, 66, 67, 74, 75, 79, 82, 89. Practice, §§ 1, 3, 45, 49, 61, 83, 106, 119, 151, 166, 172, 175. Property, §§ 50, 54, 89. Emdence, §§ 4, 87, 42, 48, 87, 108, 113. Custody of children, §§ 3, 4, 6. Alimony, §§ 4, 15, 33, 34, 40, 41, 49, 132, 333, 397. MtuxiiOXi. INDEX or SECTIONS. Alabama, 19, 28-83, 40, 41, 48, 73. California, 55, 61, 63, 64, 84-86. Delaware, 5. Florida, 93. Illinois, 35, 100, 101. Indiana, 42. Iowa, 65. Kentucky, 17, 70, 94. Maine, 18, 23. Maryland, 30, 36, 37, 58, 54, 75. Massachusetts, 4, 46, 68, 81, 87, 96, Michigan, 88-90, 93. Mississippi, 33, 49, 50. Missouri, 57. North Carolina, 18. New Hampshire, 11, 12, 14-16, 44, 45, 66. New Jersey, 24, 25, 58-60, 63, 67, 69, 73, 74, 82, 83, 95, 97, 102. Ohio, 6-10. Pennsylvania, 1, 21, 88, 48, 53, 77- 80. Tennessee, 47. Texas, 34, 51, 76. Vermont, 2, 8, 37-39. Wisconsin, 36, 56, 71, 91, 98. DESERTION. 95 1. Penneylvania. Where the libel is for desertion, it is no bar to the action, that the libellant committed adultery after the desertion occurred. If the adultery had been committed while the parties lived together, it would be a reasonable cause for desertion. 4 Rawle 160. 2. Vermont. In Vermont, to obtain a divorce under the statute, for gross, wanton, and cruel refusal or neglect to maintain the wife, being of sufficient ability, something more must be shown than a wilful desertion and a refusal to support. 15 Vt. 786. 3. Vermont. In Vermont, where a husband appropriated the whole property of his wife and abandoned her without leaving her provision for support, continuing so to do for several months, a divorce was decreed. 14 Vt. 561. 4. Massachusetts. Though a husband so abuses his wife that she has justifiable cause to leave him, and does actually leave him without oflFering to return, and the husband for five years thereafter lives apart from her and neglects to provide for her, yet she cannot maintain a libel for a divorce a vinculo for his desertion of her. 3 Met. 257. 5. Delaware. A divorce a vinculo was refused in Delaware on the ground of abandonment where both parties resided within the county. 3 Har. 13. 6. Ohio. A separation between husband and wife by agreement will not obtain a divorce for wilful absence. Wright 475, 636. 7. Ohio. Where a wife leaves a husband on account of his drunkenness, it is not desertion on his part, entitling her to a divorce. Wright 210. 8. Ohio. One who is absent three years, without any known cause, will be decreed to have deserted his wife, and a divorce will be granted. Wright 211. 9. Ohio. Where a husband leaves his wife, intending to return, and afterwards decides to stay away, the three years' desertion will begin to run from this decision. Wright 224. 10. Ohio. One leaving his wife three years and drunken may be divorced. Wright 225. 11. ll^ew Hampshire. Where the allegation is that the husband has been absent for three years without suitably providing for his wife, the court must be satisfied of his 96 LAW OP DIVORCE. continued ability during that time to maintain her; mere physical strength and capacity to labor are not, ordinarily, evidence of such ability. 8 !N". Hamp. 160. 12. New Hampshire. Where the ground is that the husband has been absent more than three years, without being heard of, evidence from his friends and relations should be produced, or a reason assigned why it has not been procured ; and the testimony should prove that he has not been heard "of" and not merely that he has not been heard " from." TS. 13. Iforth Carolina. If a wife petitions for a divorce a vinculo, and alleges in her petition that she separated herself from her husband, she is estopped by this averment. 5 Iredell 674. 14. 'Eew Hampshire. In applications on the ground of desertion, there must be evidence of the particular circum- stances which preceded and accompanied the desertion. And the account must either be corroborated by other testimony, or, if no others know the facts, there must be evidence that the libellant sustains a good, general character, in order to fortify his statements, and rebut any presumption that the desertiop was occasioned by his misconduct. 13 N. Hamp. 222. 15. 'Eew Hampshire. Where a wife seeks a divorce on the ground of the husband's absence, without making provision for her support, it must appear that the husband had been possessed of property, out of which he might have made such provision, otherwise a divorce will not be decreed. 1 K Hamp. 198. 16. I^ew Hampshire. Where the husband willingly separates from his wife for three years, and having the ability, does not provide for her, but continues to reside in the same town, this is not such desertion as would authorize a divorce. 6 E". Hamp. 87. 17. Kentucky. The right of the wife to obtain a divorce for abandonment by the husband for two years is nof impaired by an offer made by the husband shortly before the expiration of the two years to make provision for her support. 2 Litt. 837. 18. Maine. The statute of 1847 in Maine does not repeal DJBSERTION. 97 the laws then in force on divorce, but adds new causes of divorce ; and the court has no power to decree a divorce for desertion for a time less than for the term of five consecutive years. 14 Shep. 563. 19. Alabama. Where husband and wife live apart by- consent, they cannot charge each other with desertion from bed and board, with the intention of a voluntary abandon- ment. 13 Ala. 145. 20. Maryland. When, after actual separation, the parties execute a deed of separation, by which provision is made for the support of the wife and children, through the inter- vention of a trustee, and the parties continue to live separate, the court will not grant a 'divorce a vinculo; and a divorce a mensa et thoro would be unnecessary and perhaps improper. 6 Gill. 249. 21. Pennsylvania. A bond given by a husband to the guardians of the poor, conditioned for the support of his wife, who had left his house, is a bar to his proceedings in divorce for wilful and malicious desertion under the act of 1815. 1 Harris 211. 22. Maine. A wife deserted her husband a few months without cause, then went back, confessed to him her wrong, promised to return to her duties, and requested him to receive her in his house. He refused to do so, and- for five years made no provision for her support, nor gave her per- mission to return to his house. Held that this was a case of desertion within the statute of Maine. 31 Maine 842. 23. Mississippi. The statute of Mississippi providing that wilful, continued, and obstinate desertion for the term of three years shall be a cause of divorce, contemplates a con- tinuous and uninterrupted desertion. Two periods of de- sertion cannot be added together to make up the time. 23 . Miss. 152. 24. New Jersey. Where a husband had failed to make any provision for his wife and family, and she removed to another place and took board and remained there several years, the husband still failing to make provision for her: Held, not to be desertion. 2 Halst. Ch. R. 22. 25. New Jersey. On a petition for divorce for desertion, the proof offered was not sufficient. 2 Halst. Ch. R. 542. 7 Vii LAW OF DIVOKCE. 26. Maryland. By the second section of the Maryland act of 1841, a divorce a mensa et thoro may be granted for abandonment and desertion, without regard to its duration or the absence of the party complained against from the State. 2 Md. Ch. Decis. 316. 27. Maryland. The parties in the above case executed a deed of separation, by which provision was made for the support of the wife and children, and by which the parties agreed to forever live apart. Held, that this deed, so long as complied with by the husband, exonerated him from the obligation to support his wife, and protected him against any claim for necessaries supplied her. There being no proof that any circumstances had transpired, since the execution of the deed, to render it necessary that the relation of the parties should be changed, the court refused to decree a divorce a vinculo, as the effects of the decree upon the rights secured by the deed might occasion injurious conse- quences, lb. 28. Alabama. A wife is not entitled to a divorce on the ground of abandonment for three years, where, by her con- duct, her husband has been driven from her society and de- nied the locus penitentice and privilege of returning. In such a case, her consent to the separation must be intended. 15 Ala. 779. 29. Alabama. "Where the wife refuses to accept the pro- vision made for her support by the husband, but selects her own place of residence in contravention of his wishes, she cannot complain that he does not provide for her. lb. 30. Alabama. Abandonment by the wife is not a good ground of divorce, where an unfounded charge of infidelity made by the husband and never retracted, is the sole cause of the separation. 17 Ala. 250. 31. Alabama. "Where the desertion originated in this State, it is immaterial where the defendant resided during the three years subsequent thereto. 19 Ala. 499. 32. Alabama. A husband abandoned his wife on account of a difficulty respecting her property, and soon after pro- posed a reconciliation, which she refused, asserting her inten- tion not to live with him. Held, that her declaration barred an action by her for his abandonment. 23 Ala. 583. DESERTION. 99 33. Pennsylvania. The reasonable cause which would jus- tify a wife's desertion and abandonment of her husband, must be such as would entitle her to a divorce. The law requires acts to be proved, of which declarations may be part ; but mere declarations, especially when inconsistent with all the acts in evidence, can never be ground for justifying deser- tion. 11 Harris 343. 34. Texas., Separation and intention to abandon must concur, in order to constitute the ground for divorce. But they need not be identical in their commencement. If one should leave the other on business, and afterwards determine not to return, the desertion would commence from the time the intention was formed. 14 Texas 356. 35. Illinois. In Illinois, a divorce will be granted a wife , on the ground of desertion for two yeai's, her husband re- siding in this State, although the desertion commenced in a foreign jurisdiction. 17 111. 476. 36. Wisconsin. To enable a husband to maintain a bill of divorce against his wife for desertion, because she refused •to remove with him from one State to another, he must show that her conduct was unreasonable, and that his conduct was such, that it would be safe for his wife to live with him. 4 Wis. 64. 37. Vermont. Upon an ex parte hearing of an application for a divorce on account of wilful desertion, it only appeared that the wife had refused to move with her husband to live near his relatives. Held, that in the absence of evidence showing the contrary, this excuse must be presumed to h^ve been made bona fide, and that the applicants must be dis- missed. 29 Vt. 148. 38. Vermont. Desertion, to form a ground of divorce, must be without any sufficient cause, or without any cause which the party, upon reasonable proof, believes to be suffi- cient. Ih. 39. Vermont. Where one party remained absent from the other upon the bona fide belief of such a cause existing ; qumre, whether a divorce a vinculo should be granted, even upon proof that such cause did not exist, and that the party had no sufficient reason to believe its existence, lb, 40. Alabama. If the wife have left the husband without 100 LAW OF DIVORCE. cause, yet, if she return to him, and in good faith make a sincere offer, without improper qualifications or conditions, to resume conjugal relations, it is his duty to accept her; and, if he refuse, the refusal amounts to a desertion, which in time may become the ground of a divorce. In this case it was shown by the defendant's letters, that his motive in marrying was low and selfish ; that he neglected his wife after marriage ; that he removed to another State, leaving her behind ; that she went to.him voluntarily, remained a few months, and returned alone ; and that she wrote him a letter proposing to return, which he rejected. Held, that the wife was entitled to a divorce for his desertion. 29 Ala. 719. 41. Alabama. Impropriety of language and the indul- gence of bad temper on the wife's part, will not justify the husband's desertion. lb. 42. Indiana. Upon a bill filed for divorce for abandon- ment, it was proved at the hearing, that a separation had taken place, and that the wife had afterwards said, that she did not intend to live with her husband, but it did not ap-* pear which of the parties was in fault; it was held that the bill was properly dismissed. 3 Ind. 555. 43. Pennsylvania. The refusal of a wife to accompany her husband to a foreign country is not, in itself, a wilful and malicious desertion within the meaning of the act. 6 Casey 412. 44. lifew Hampshire. "Where the alleged cause of divorce is willing absence, without making provision for the libel- lant's support for three years, it must be shown that the respondent left without intending to return, or, having left with the intention of returning, he afterwards determined to abandon her, and that this intention was persisted in for three successive years next before the filing of the libel. 37 N. Hamp. 191. 45. New Hampshire. So, too, it must be shown that the respondent had some pecuniary ability wherewith to pro- vide for his wife's support. lb. 46. Massachusetts. A divorce will be decreed for wilful desertion for five years, although the guilty party has been BESERTION. in the house of correction during the greater part of ^li^^^^ years. 7 Gray 279. 47. Tennessee. "Where desertion was alleged, and it ap- peared that the desertion was in accordance with the wishes of the wife, and against those of the defendant, it was held that this was not good ground for a divorce. 5 Sneed 554. 48. Alabama. To obtain a divorce under the code, the husband must affirmatively show a refusal on the part of his wife to live with him during the three years next preceding the application. 33 Ala. 486. 49. Mississippi. Desertion by mutual consent is no ground for divorce. No absence can amount to a desertion without an animus non revertendi. 7 George 517. 50. Mississippi. ISo ofl'er to return, during the time, can prevent the desertion from being continuous and a ground for divorce, unless made in good faith, with a sincere desire that it should be accepted, and unaccompanied by conditions which the deserter has no right to impose. lb. 51. Texas. If a wife leave her husband for good cause, 'and the separation continue for three years, it is ground for divorce, for it is regarded as a desertion by the husband. 18 Texas 528. 52. Pennsylvania. A divorce was fraudulently obtained by the libellant, who, first having induced his wife to absent herself from him for two years on a visit to friendsiin Ken- tucky, then brought an ex parte, action against her, alleging wilful and malicious desertion on her part, he meanwhile directing her not to return to him. The decree was annulled within the year, although the libellant had died meanwhile. 2 Wright 241. 53. Maryland. Failure by the husband to supply his wife with such necessaries and comforts as are within his reach, and compelling her by cruelty to quit him, are as much an abandonment as actual desertion on his part. 16 Md. 218. 54. Maryland. The evidence in this case did not prove the husband's failure to support his wife, but there was proof that once while intoxicated he struck her. For this and other ill treatment she left him and lived apart at her father's house, although importuned to return to her husband. Held 102 LAW OF DIVORCE. that this was not a case for a divorce a vinculo, but a decree « mensa was rendered. lb. 55. California, Though a refusal on the wife's part to accompany her husband in a reasonable change of domicile probably amounts to a desertion, yet it must appear that the proposition for removal was peremptory, and could not rea- sonably have been regarded as addressed to her discretion, whether to accompany her husband or not. 14 Oal. 654. 56. Wisconsin. The court granted the wife alimony in a suit for her husband's desertion of her on a certain day. Held, that this was a bar to a suit by the husband for divorce based upon the wife's desertion of him upon that day. 9 Wis. 529. 57. Missouri. Where the wife separates from the hus- band with his consent, he is not entitled to a divorce on the ground of her desertion. 31 Mis. 24. 58. 'New Jersey. Desertion, sufficient to authorize divorce, cannot be inferred from the unaided fact that the parties do not live together; it must appear, to establish desertion by the wife, that she left her husband of her own accord, with- out his consent and against his will, or that, without any just cause, she obstinately refused to return at his request. 2 Beasley 38. 59. New Jersey. Mere separation, by the husband's leaving and living apart from the wife, is not such desertion as jus- tifies a divorce. 2 Beasley 263. 60. New Jersey. A wife having left her home with her husband's consent, to visit her mother, her subsequent change of purpose and refusal to return will not convert such ab- sence into a wilful desertion from the time of departure, within the statute of divorce. 2 Beasley 286. 61. California. Desertion, as a cause of divorce, consists in the cessation of matrimonial cohabitation, and the inten- tion to desert. 20 Cal. 431. 62. California. A husband's abandonment of his wife, prolonged through many years, without provision for her support, is sufficient proof of an intent to desei-t. lb. 63. New Jersey. If a husband, by his extreme cruelty to his wife, compel her, for her own safety and protection, to seek a home elsewhere than under his roof, she does not there- DESERTION. 103 by desert him. But if the purpose of his cruelty is to drive her from his home, and she does leave by reason of it, he deserts her. 3 Stockt. 256. 64. California. The plaintift' need not show negatively that no cause for the desertion existed. 20 Cal. 431. 65. Iowa. Evidence must show that the complainant was not instrumental in procuring the absence of the respondent, on account of which a divorce is demanded. 4 Greene 324. 66. New Hampshire. "Where a wife left her husband in the State of their domicile and came into N"ew Hampshire, it was held that his failure to follow her was not a voluntary absenting of himself. 17 IST. Hamp. 251. 67. ISTew Jersey. The statute of 1857, declaring that a divorce may be decreed for desertion for three years, does not repeal the act of 1846, which requires that one of the parties shall have been a resident of this State for five years. 1 McCarter 78. 68. Massachusetts. If a married woman leave her hus- band with his consent, and remain absent five years, it is not such a desertion as will entitle to a divorce. 8 Allen 418. 69. I^ew Jersey. The voluntary separation by a wife from her husband, pending a suit for divorce for the wife's alleged adultery, does not constitute a wilful desertion in point of law, but, on the contrary, a regard for public decency, as well as. the settled usage of the court, requires that under such circumstances the parties should not live together. 1 Mc- Carter 315. 70. Kentucky. In a suit for divorce brought by the wife, the husband may, on a cross petition, have a divorce on the ground of the wife's abandonment of him without his fault, if such abandonment had continued for a year previous to the filing of the cross petition. 1 Duvall 196. 71. Wisconsin. In a suit for divorce on the ground of the wife's desertion of her husband, it was proven that the plaintiff" had so conducted himself before the wife left, as to show a desire to have her leave, and so as indirectly to bring about the result ; that she was not unwilling to cohabit with him, but objected to certain persons whom he kept near him ; and that when she left, she probably expected to return ; and, 104 LAW OF DIVORCE. there being no evidence fixing any subsequent time as the time of the alleged abandonment, a divorce was refused. 19 Wis. 172. 72. Alabama. . A husband vs^ho without just cause makes a charge of infidelity against his wife, and on that ground drives her from his house, abandons her in the legal meaning of that word. 37 Ala. 393. 73. Ifew Jersey. To constitute desertiop on the part of the wife, she must absent herself from her husband of her own accord, without his consent, and against his will. 1 G-reen 275. 74. ISTew Jersey. "Where a wife left her husband on the ground that his intercourse with her was very frequent, but there was no pretence of any peculiar debility or physical infirmity on the part of the wife, and no proof of any vio- lence or compulsion on the part of the husband, it was held that this constituted no justification for her desertion. lb. 75. Maryland. "Where a husband repeatedly tells his wife, after she has given birth to a child, that she must leave his house as soon as her confinement is over, and admits this in his answer, and she voluntarily leaves his house in conse- quence, the husband declaring she shall not return, and that he will not support her and her child, a divorce a mensa et thoro and alimony may be granted the wife on the ground of desertion. 22 Md. 337. 76. Texas. The fact that a husband has left his wife for three years, with the intention of abandonment, is, by statute, a specific cause for divorce ; and it is immaterial what were the circumstances attending the separation, if the wife be in no manner chargeable with it, either by act or consent. 27 Texas 390. 77. Pennsylvania. Separation is not desertion. Desertion is an actual abandonment of matrimonial cohabitation, with an intent to desert, wilfully and maliciously persisted in, without cause, for two years. The guilty intent is manifested, when, without cause or consent, either party withdraws from the residence of the other. Poverty, idleness, untruthfulness, are great evils,' when they drive a wife into separation from her husband, but they must not be mistaken for the high crime of malicious desertion. 13 Wright 249. DESERTION, 105 78. Pennsylvania. The act of April 26, 1850, gave the courts jurisdiction in cases of desertion, notwithstanding the parties were, at the time of the desertion, domiciled in another State. It did not reach a case where the parties Vere domiciled in any foreign country. 12 "Wright 226. 79. Pennsylvania. A wife is not bound to follow her husband wherever he may direct, if she have good reason to believe that his movements were made solely with a view to force her to desert her habitation and thus make a case of divorce for him. He is bound to exhibit good faith on his part, in order to charge bad faith on hers. Evidence was admissible to prove his desire to get rid of his wife, and that he had labored and schemed to provoke the desertion by her. In such a case, neither party could claim a divorce. This sort of proof would be a mode of negativing the charge of wilful and malicious desertion. He could not obtain a di- vorce based upon his own schemes to promote it. 13 P. P. Smith 450. 80. Pennsylvania. The wife, in the above case, might de- feat the unworthy attempts of her husband, by showing that her refusal to follow him was to avoid his schemes to get rid of her, and not through wilfulness and malice, with just the same effect as if she had gone to him and suffered until she could endure no longer. Ih, 81. Massachusetts. Eefusal of sexual intercourse for five years consecutively, although not justified by considerations of health, is not desertion. 97 Mass. 327. 82. !N"ew Jersey. In a disagreement between husband and wife, the declaration of the wife that she will not live with him, his assent to her going where she chooses, furnish- ing her with money for her support, and never insisting that she perform marital duties, although he entreats her to re- turn, does not constitute wilful, obstinate, and continued desertion. It has too much the aspect of a friendly arrange- ment. 3 Green 42. 83. New Jersey. Absence from the wife for three years is not desertion in the legal sense of the term. The inten- tion must be evident. 3 Grreen 445. 84. California. Wilful desertion signifies an intentional 106 LAW OF DIVORCE. desertion. It does not imply malice toward the other party. 32 Cal. 467. 85. California. Where the desertion has continued for more than two years, an offer made by the offending party to return will not defeat the action for a divorce, unless accepted and acted upon. An offer to receive the offending party may, until cohabitation, be withdrawn. lb. 86. California. A desertion is made out, when it is shown that the absence has commenced, and has continued during the prescribed period without the consent and against the objections of the other party. lb. 87. Massachusetts. In a suit for divorce, the desertion of one party, caused and justified by the misconduct of the other, is not the desertion of the other. 98 Mass. 155. 88. Michigan. If there be a separation by consent, nothing but an unconditional and entire resumption of the marriage relations can restore them to such a position as would make a new separation by the departure of the wife a criminal desertion. 17 Mich, 205. 89. Michigan. "Where a wife was held for trial for a year, under a charge preferred by the husband of an attempt to take his life by poison, and was acquitted, it was held that her absence from her husband during the year did not con- stitute desertion under the statute as a ground for divorce. 18 Mich. 320. 90. Michigan. Where a wife, three days after the separa- tion from her husband, filed a bill for a divorce, and obtained a decree, which was subsequently reversed, and the husband then filed his bill for divorce on the ground of separation of the wife, which separation embraced the time pending the first bill, it was held that the separation by the wife was justifiable, and no ground for a divorce. lb. 91. Wisconsin. Where a husband left his wife and lived in another State for five years, during which term he wrote to others, but not to her — never requested her to go and live with him, gave no reason for not returning — made no pro- vision for her support, although doing well in business, and neither party intended to live together again, though no declarations thereon could be obtained from him, held to be a ground for divorce. 22 Wis. 256. DESERTION, 107 92. Elorida. Desertion begins when the intention not to return, and resolution to remain away, are formed. This time should be fixed by the allegations of the bill. 12 Fla. 449. 93. Michigan. The separation required must be, and con- tinue to be for the period named in the statute, a voluntary breaking off of matrimonial cohabitation by one party against the will of the other, and under circumstances which the law does not consider sufficient to justify it. 5 Jennison 420. 94. Kentucky. "When the wife has deserted the husband, the petition must allege, and the evidence prove, that the wife had separated from him without his fault. 1 Bush. 74. 95. ITew Jersey. If a husband drive his, wife from his home, or use personal violence or brutal treatment toward her, such as to indicate an intention to drive her away, or to render it unsafe to live with him, the leaving his house by her for these reasons is a desertion by the husband, and, if she be allowed to stay away for three years, without solici- tation to return and proper assurance of better treatment, would be a desertion by him sufficient to warrant a divorce. Unpublished decision of chancellor, May, 1871. 96. Massachusetts. A party whose extreme cruelty has caused the desertion of the other, or a husband whose gross and cruel neglect to provide suitable maintenance for his wife, he having the ability, has caused her desertion, cannot maintain a libel for divorce for such desertion. 99 Mass. 493. 97. IS'ew Jersey. The requirement that a party shall be an inhabitant of the State at the time of the desertion, refers to the whole period of three years, during which the de- sertion must have continued, and not to the mere commence- ment or act of desertion. 5 C. E. G-reene 263. 98. "Wisconsin. Equity will annul at the suit of the wife a judgment of divorce, the ground of which was her alleged desertion by the husband, where it appears that the separa- tion was in fact voluntary, under written articles, and where also an order for the publication of the summons was ob- tained, on the ground that the husband was unable to ascer- tain her residence, whereas, in fact, he well knew it, and 108 LAW OF DIVORCE. she had no knowledge of the suit until the time for appeal ing had expired. 23 Wis. 452. 99. Massachusetts. Proof that the husband intentionally and against his wife's consent has, for five years, abandoned all matrimonial intercourse and companionship with her, and denied her the protection of his home, will sustain her libel for a divorce on the ground of his desertion ; and it is immaterial that during the period he has regularly con- tributed money, and from time to time necessaries, towards supporting the wife and their children. 103 Mass. 577. 100. Illinois. The statute requires that desertion shall continue without cause for two years, and courts have no power to prescribe a shorter period. 51 111. 162. 101. Illinois. Desertion must be wilful and continue two years ; nor is the case altered, where the bill is prematurely filed, by filing a supplemental bill, when the two years in- cludes any portion of the time which has elapsed after the filing of the original bill. 53 111. 394. 102. New Jersey. Refusal by a wife of marital inter- course with her husband does not justify him in deserting her. 6 C. E. Greene 331. Vide also the following sections under their respective divisions : — Cruelty, § 134. Jurisdiction, §§ 20, 33, 30, 44, 51, 63, 68, 70, 75, 77, 87, 104. Petition or Libel, §§ 35, 83, 34, 36, 38, 43, 48, 50, 68, 77, 85, 86. Practice, %% 41, 54, 83, 151, 197. Evidence, §§ 3, 41, 70, 75, 76, 93, 94. Property, §§ 40, 113. Custody of Children, §§ 13, 18, 33. Decrees of other States, §| 9, 10. Alimony, §§ 51, 60, 73, 91, 111, 119, 139, 161, 194, 311, 353, 258, 367, 375, 284, 387, 309. OTHER CAUSES OP DIVORCE. 109 ©tjer ©auses oi Miboxtt. IKDEX OF 8E0TIOKS. Alabama, 36, 40, 52. California, 41, 42, 48, 53. Connecticut, 16, 24. Delaware, 69. Florida, 68. Georgia, 44, 57. Illinois, 76. Indiana, 37, 38, 67. Iowa, 50. ' Kentucky, 33, 39, 75. Maine, 26, 32. Maryland, 71, 72. Massachusetts, 59, 68. Michigan, 57, 58, 64. Missouri, 22, 23, 49, 54, 56. North Carolina, 1, 2, 10, 13, 17, 18. New Hampshire, 14, 35, 60, 65, 70. New York, 3-9, 11, 12, 28-30, 66, 73, 74. Ohio, 19-21. Pennsylvania, 27, 61, 63. Tennessee, 43. Texas, 31, 45-47. Vermont, 15, 25, 55. 1. North Carolina. The courts of I^orth Carolina can di- vorce for the idiocy of one of the parties at the time of the marriage. 2 Ired. Ch. 470. 2. I^orth Carolina. In a suit for divorce for the lunacy of one of the parties at the time of the marriage, the court has no discretionary power in granting or refusing the di- vorce. 3 Ired. Ch. 9.1. 3. E^ew York. The court can decree a divorce for insanity, lineal consanguinity, etc. 4 John. Ch. 443,' , 4. Jfew York. Also for fraud and legal'iiicapacity to as- sent to the marriage. 2 Paige Ch. 501. ''■\ 5. New York. Mere sterility is in no caSe sufficient cause for a divorce. 5 Paige Ch. 554. i ■ 6; New York. A marriage will not be declared void for impotence of one of the parties, unless such incapacity existed at the time of the marriage, and is incurable. lb. 1. New York. Nor where there is good ground to believe that the disability might be removed by a slight surgical operation without danger, 6 Paige Ch. 175^, 8. New York, The court can decree a marriage void, where it was obtained by the fraud of cine party without the consent of the other, and which has never been consum- mated. Hopk. 478. 9. New York. The court cannot decree a divorce for cor- 110 LAW OF DIVORCE. poral impotence or for any other cause not specified in the statutes. Hopk. 557. 10. North Carolina. Though the idiocy of one of the parties renders the marriage void, the court will, in such cases, formally divorce the parties. 2 Ired. Ch. 470. 11. New York. On a bill by the husband for the wife's impotence, the wife will be compelled to submit to a surgical examination ; and if she have already submitted to an ex- amination by competent surgeons, whose testimony can be readily obtained, she will be excused from further examina- tion. 5 Paige Ch. 554. 12. New York. In a suit for divorce for the incapacity of the wife, she was compelled to submit to an examination by physicians, though she produced a certificate of two physicians that the incapacity had arisen since the marriage. In such suit, the wife must answer such interrogatories as may be previously settled by the master. 9 Paige Ch. 25. 13. North Carolina. An inquisition finding idiocy is not conclusive upon the question, in a suit for a divorce on the ground of the idiocy. 2 Ired. Ch. 470. 14. New Hampshire. Where a husband united himself with the sect of the Shakers, which sect professes to believe that it is unlawful for a man and wife to cohabit as man and wife, the wife is entitled to a divorce under the statute of 1821. 5 N. Hamp. 271. 15. Vermont. Alienation of feeling to any degree is no cause for divorce. Brayt. 55. 16. Connecticut. Fraudulent contract in the Connecticut statute includes those causes only which render the marriage unlawful ah initio. 1 Day 111. 17. North Carolina. Where a man was induced to marry a woman by her representing that a child she had was his, and after the marriage he discovered that the child was black, it was held that he was entitled to a divorce, if the color was so indistinct as to mislead ordinary diligence, or the child had been kept out of his sight. 3 Dev. 548. 18. North Carolina. In North Carolina, if a husband might have known that his intended wife was pregnant, he is not entitled to a divorce. 3 Dev. 535, 548. OTHER CAUSES OF DIVORCE, 111 19. Ohio. One married to a pregnant woman, without his knowledge, may be divorced. Wright 630. 20. Ohio. A divorce will be granted, where a husband is lazy, and neglects to provide for his family for more than three years. "Wright 66. 21. Ohio. The court will not grant a divorce by consent of parties or consent of counsel. "Wright 644. 22. Missouri. In a proceeding for a divorce in Missouri by a husband against his wife for drunkenness, the wife may defend by showing the adultery of the husband, and if that fact be found, a divorce will not be granted. 9 Mis. 539. 28. Missouri. Mere indignities by a husband to the moral character or reputation of the wife are not sufficient to authorize .a divorce, nor the fact that he charged her with infidelity. 10 Mis. 296. 24. Connecticut. In a petition for divorce on the ground of "corporal imbecility," it is necessary to show a permanent and incurable impotency to consummate the marriage, and the term " corporal imbecility" does not ex vi termini import such impotency. The averment that the respondent never had nor attempted to have sexual intercourse with the peti- tioner, although they had for several weeks slept together in the same bed, is insufficient, it being no allegation of the fact of impotency. 8 Conn. 166. 25. Vermont. Impotency arising from idiocy is no cause for a divorce in Vermont. 2 Aik. 188. 26. Maine. The legislature of Maine has power to grant divorces in cases where the Supreme Court has no jurisdic- tion; but, where the court has jurisdiction, the constitution forbids the exercise of that power by the legislature. 4 Shep. 479. 27. Pennsylvania. "When, from the proof exhibited, it appears that the husband's conduct has been of such a nature that the wife's person cannot be in safety, the court will grant a divorce a mensa, even if the husband offisr to receive the wife again with promises of amendment. 1 Yeates 78. 28. l^Tew York. If the defendant, in a suit to annul the marriage on the ground of fraud, is an idiot, the complainant 112 LAW OF DIVORCE. should procure the appointment of a guardian ad litem to appear and defend the suit for the wife. 3 Barb. Ch. 132. 29. New York. A suit to annul the marriage, upon the ground of fraud in obtaining consent thereto, must be brought within six years after the discovery by the ag- grieved party of the facts constituting the fraud, and during the lifetime. of the parties or one of them. lb. 80. ISqw York. A court of equity will not annul the marriage for fraud, upon the mere admission by the defend- ant of the facts charged in the bill, nor upon the admission by a third person, that a child of the wife born, after the marriage, though begotten, before, was begotton by such person and not by the husband. lb. • 31. Texas. A wife petitioned for a divorce a vinculo, alleging that her husband had committed theft, and had run awaty for the purpose of escaping punishment. Held that this was not an " outrage" within the Texas act of 1841, and hence the decree could not be granted. 2 Texas 212. 32. Maine. Under the revised statutes of Maine, which did not repeal the old law of divorce, but left the decree more at the discretion of the court, it is enacted, that a com- bination of such wrongs as might each become, by a suffi- cient length of continuance, a ground of divorce under the former law, might altogether, under the statute as revised, each continuing a less time, become so. 31 Maine 490. 33. Kentucky. Under the laws of Kentucky, where a wife in society treated her husband with contempt, and openly preferred the company of another man against the remonstrances of her husband, and finally abandoned him for the space of a year, a divorce was granted on the prayer of the husband. 12 B. Mon. 210. 34. United States. A marriage with a man having a former wife living is absolutely void, and does not require a judicial sentence to annul it. 12 How. U. S. 472. 35. New Hampshire. Impotency, in order to constitute a ground of divorce, must exist at the time of the marriage, although the statute making it such is silent as to the time when it must be proved to exist. 5 Foster 267. 36. Alabama. The lapse of twenty-two years after the discovery of the alleged insanity, before filing a bill to avoid OTHER CAUSES OF DIVORCE. IIS the marriage on that ground, is a bar to the relief sought. 28 Ala. 565. 37. Illinois. Hereditary insanity, evinced before marriage and unknown to the husband, affords no ground for divorce. 18 111. 137. 38. Illinois. The power of decreeing divorces conferred on the court by the statute of 1845, is confined to the common or canon law and statutory causes. lb. 39. Kentucky. The wife may have a divorce for the confirmed habit of drunkenness on the part pf 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 and children. Held that the words " wasting of his estate" where the husband has no property, apply to his health, time and labor, all of which for the purpose of supporting himself and family, are essentially his estate. 18 B. Mon. 8. 40. Alabama. If a marriage is void by reason of insanity of either party, no decree of divorce is necessary to restore the parties to their original rights ; yet a decree of divorce in .such case is conducive to good order and decorum. 28 Ala. 565. 41. California. Wilful neglect, whether accompanied with desertion or otherwise, is a distinct ground of divorce. But the neglect must be such as to leave the wife destitute of the common necessaries of life, or such as would leave her destitute but for the charity of others; if provided by the common earnings of either, there is no neglect. The earn- ings of both go into a common fund and become common property,the control of which belongs to the husband, and may be applied by him for her support. 9 Cal. 475. 42. California. It must appear affirmatively, that the husband had sufficient property to support the wife, and neglected so to do. It must be the possession of means in property to provide such necessaries, not to his capacity of acquiring such means by labor. lb. ■ 43. Tennessee. Under a law authorizing a divorce a mji- eulo on conviction of husband or wife of felony, such convic- tion and punishment out of this State, is not ground of divorce. 5 Sneed 423. 8 114 LAW OF DIVORCE. 44. Georgia. Mental incapacity at the time of marriage is a ground for divorce in Georgia, but not for a sentence of nullity of marriage, which is unknown in the State. 27 Geo. 102. 45. Texas. Under the act of 1841 in Texas, the fact that the husband was sentenced for seven years for forgery, and that the wife was dependent on her father for support, is no good cause for divorce. 18 Texas 621. 46. Texas. Habitual drunkenness of the husband for several months, and his use when drunk of insulting and abusive language towards the wife, combined with his failure to provide for the support of his wife and children during that period, are not sufficient grounds for divorce. Habitual intoxication is itself a cruelty, if such as to incapacitate a husband from discharging his marital duties, and if continued three years, would, like desertion for that time, be good ground for divorce. Any language, however, which would amount to cruelty under the statute, would not be excused, but would be aggravated by intoxication. 18 Texas 528. 47. Texas. A deliberate charge of infidelity against the wife, with her desertion by the husband and his subsequent adultery, make a strong ground of divorce. 18 Texas 626. 48. California. If a woman be with child by a stranger at the time of marriage, and her intended husband be igno- rant thereof, he shall have a divorce, for the fraud upon him vitiates the contract. It seems otherwise as to antenuptial incontinence merely. 13 Cal. 87. 49. Missouri. Courts will not grant divorces to those who, by a long course of ill advised and imprudent conduct, have produced such a state of alienation of feeling, as would, if unexplained, seemingly warrant a divorce. 29 Mis. 301. 50. Iowa. Under § 1482 of the Code, which provides that a divorce may be decreed, where the parties cannot live in peace and happiness together, the chancellor must be fully satisfied of the facts, and the moral, social, and mental wel- fare of the parties and their children requires a permanent separation. There may cases arise under the law, where the parties are mutually at fault, in which a divorce might be decreed. 5 Clarke 204. OTHER CAUSES OF DIVOKOE. 115 51. Georgia. A libel for divorce on the ground of mental incapacity, must be filed and tried in the same manner as in other cases. The jury may not only authorize a divorce, but may direct how the property of the incompetent party shall be disposed of. 27 Geo. 102. 52. Alabama. In a proceeding for a divorce for physical incapacity, a motion for an order to compel the defendant to submit her person to an examination, after publication has passed, is addressed to the discretion of the chancellor, and his ruling is not appealable. 35 Ala. 226. 53. California. A fixed habit of drinking to excess, to such a degree as to disqualify a person from attending to his business, during the principal portion of the time usually devoted to business, is such habitual intemperance as is made ground of divorce. 19 Cal. 627. 54. Missouri. A single act of drunkenness and indecency of a wife is not such an indignity as will render the con- dition of the husband intolerable. 84. Mis. 211. 55. Vermont. Impotence, being made by our statute a cause for nullifying a marriage, and the legislature having invested the Supreme Court with jurisdiction of the subject, the court may compel the defendant to submit to a medical examination, though the statute makes no provision for it. The settled practice in the English ecclesiastical courts in divorce suits for incurable impotence, is to require a medical examination to ascertain the fact. 35 Vt. 365. 56. Missouri, Under the statute of Missouri, an allega- tion that defendant was, at the time of marriage, and still is, impotent, and a specification of the particular character of the impotence, is sufficient to sustain a petition for divorce. The further allegation that the defect is incurable, is un- necessary, this being implied in the term impotence. 34 Mis. 211. 57. Michigan. Those frauds which invalidate a marriage are usually such as negative aiiy consent to be married at all, without reference to previous inducements, and are commonly duress, surprise, or stratagem in procuring the marriage; and the fraud must be nearly, if not absolutely, coincident in time with the marriage, and operate to destroy that in- 116 LAW OF DIVOECE. telligent consent which is required for the marriage itself, rather than jhe preliminary engagement. 13 Mich. 452. 58. Michigan. A husband after twenty years of marriage, desired a divorce on the ground of fraud in the contract, the wife before marriage having specifically asserted her chastity to him, which assertions were subsequently found to be false. The decree was refused. Ih. 59. Massachusetts. In order to sustain a petition for a sentence of nullity of a marriage on the ground, that the woman was pregnant by another man than the petitioner at the date of the marriage, and that she fraudulently in- duced him to believe she was chaste, it is not necessary to prove express representations by the woman as to her chas- tity. 9 Allen 140. 60. ISew Hampshire. It being cause for divorce, if either party shall have joined any religious sect, which professes to believe the relation of husband and wife to be unlawful, and refused to cohabit with the other party for three years; it was held, that it is none the less a cause for divorce, if both have joined such society, and afterwards the husband has ceased to be a member, while the wife has refused so to do. 46 K Hamp. 184. 61. Pennsylvania. By the act of 1815, where an inces- tuous marriage has not been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be in- quired into after the death of either. This is similar to the law in England. The marriage is voidable, not void. The act of March, 1860, seems to make such marriages void, but the court declined to express an opinion upon this point. 8 Wright 309. 62. Pennsylvania. It is not pecuniaty motives or delu- sive promises of wealth, position, and the like, which are the procuring fraud contemplated by the act of 1854. The act refers not to a marriage merely, but to an alleged mar- riage, and in which the mental assent of the injured party is wanting. The very act of marriage must be tainted with fraud. 4 P. F. S. 255. 63. Massachusetts. If a man, after having had sexual intercourse with a womati, marries her, on faith in her as- surance that she is not pregnant ; the fact that she was then OTHER CAUSES OF DIVOUnE. 117 pregnant with a bastard child of which he was not the father, is not a ground for avoidance of the contract. 97 Mass. 330. 64. Michigan. A divorce cannot be had for habitual drunkenness, if the complainant was aware of this before marriage. 16 Mich. 140. 65. N"ew Hampshire. Conviction in the District Court of the United States for the District of Massachusetts, and imprisonment in the State's prison in Massachusetts, under sentence on that conviction, are no causes for divorce in N'ew Hampshire. 47 'N. Hamp. 52. 66. 'Hew York. A husband is not entitled to a decree of nullity of marriage on the ground, that the former husband of his wife obtained a divorce from her husband by her fraudulent collusion. 53 Barb. 454. 67. Indiana. A husband separated, from his wife on the ground of religious scruples, she having been divorced from one still living — and afterwards entreated her to live with him again. Held, on appeal, that the facts did not justify a divorce on her application, under the discretionary power of the court, or on the ground of cruel treatment. 29 Ind. 174. 68. Plorida. Under the statute giving a divorce for "ha- bitual indulgence of violent and ungovernable temper," it should be expressly alleged that the husband indulged in violent and ungovernable temper towards his wife. 12 Fla. 449. 69. Delaware. Imbecility of mind is not a sufficient ground of divorce, unless 'it amounts to idiocy or insanity. N'or will intoxication a.'; the time of the marriage, accom- panied with circumstances of fraud, combination, or circum- vention on the part of the father and friends of the wife to induce the petitioner to marry his daughter, give the court jurisdiction to decree a divorce, unless the petitioner was insane, within the meaning of the act. 2 Hous. 308. 70. !N^ew Hampshire. Conviction and imprisonment in another jurisdiction is not a cause of divorce in New Hamp- shire. 47 1^. Hamp. 52. 71. Maryland. Where, by organic defect of the female, existing at the time of marriage, there cannot be a natural and perfect coition, vera copula, between the parties, and the 118 LAW OF DIVORCE. defect 18 permanent and incurable, the case comes within the legal definition of impotence, and will authorize a di- vorce a vinculo. 33 Md. 401. 72. Maryland. A voluntary deed of separation between husband and wife, is not a bar to a bona fide application by the former for a divorce, on the ground of the wife's impo- tence at the date of the marriage. lb. 73. Ifew York. A decree for divorce on the ground of fraud or force cannot be granted, if, before the commence- ment of the suit, there was a voluntary cohabitation of the parties as husband and wife. Qucere. "Whether to meet the requirements of justice, the statute does not need amend- ment, if the voluntary cohabitation mentioned, does not mean a knowledge of the fraud. 12 How. Pract. 32. 74. l^Tew York. An action cannot be maintained by a husband to obtain a decree on the ground that the wife had obtained a divorce from a former husband by fraudulent collusion. 51 Barb. 454. 25. Kentucky. Confirmed habits of drunkenness of the husband for one year with a wasting of his estate and with- out suitable maintenance of his wife and children authorize a divorce to the wife. His mental and physical faculties may constitute the husband's only estate, a wasting of which is one of the ingredients for divorce in favor of the wife. 7 Bush. 306. 76. Illinois. It is no ground for divorce, within the statute, that a party has committed a larceny, where no con- viction had been had. 51 111. 162. Vide the following sections under their respective divi- sions: — Jurisdiction, %% 8-10, 43, 95, 108, 116. Libel, § 78. Practice, §§ 28, 137. Evidence, §§ 11, 47, 113. Alimony, %% 23, 76, 99, 176, 299, 321, 332, 84S. JURISDICTION AND DOMICILE. 119 ^uvistriction antr domicile* INDEX OF SECTIOITS. Alabama, 34, 50, 65, 66, 72, 74, 76, 83. Arkansas, 71. California, 67, 83. Connecticut, 36, 37, 113, 114. Delaware, 5, 113. Florida, 110. Georgia, 98. lUinois, 53, 79, 115. Indiana, 6, 33, 23, 68, 85, «8, 89, 99, 100, 103. Iowa, 84, 90. Kentucky, 116, 117. Louisiana, 41, 69, 77, 78. Maine, 16, 17, 81, 97, 111. Maryland, 47, 48, 120. Massachusetts, 13-15, 18-31, 34, 107, 109. Mississippi, 53, 96. Missouri, 38, 63. North Carolina, 7-9, 55, 95. New Hampshire, 35, 26, 31, 33, 35, 42, 44, 58, 70, 93. New Jersey, 87, 94, 103. New York, 1-4, 10-12, 45, 46, 57, 64, 86, 108, 118, 119. Ohio, 27. Pennsylvania, 28, 39, 40, 49, 75, 104, 106. Rhode Island, 54, 59-62. Tennessee, 29, 30, 33. Texas, 51. Vermont, 91, 92. Wisconsin, 56, 101. 1. 'Sew York. To give tlie court jurisdiction to decree a divorce a vinculo for adultery, where the marriage was solemnized abroad, the bill must show that both the parties resided in the State when the adultery was committed. 1 John. Ch. 204. 2. New York. Chancery has not power to grant an abso- lute or partial divorce, except in cases provided for by statute. 1 Paige 276. 3. N'ew York. If the bill d6es not, show upon its face that it is within the provisions pf the statute, the plaintiff cannot have a decree, even though the defendant does not demur. 3 Edw. Ch. 462. 4. New York. To give the court jurisdiction to decree a divorce for adultery, the plaintiff must have been an actual inhabitant of the State, both when the offence was commit- ted, and at the time of filing the bill ; and, coming into the State to file the bill, and departing immediately after, will not satisfy the requirements of the statute. 3 Edw. Ch. 650. 5. Delaware. A court of chancery has no jurisdiction 120 LAW OF DIVOECB. in a case where the bill is filed for alimony merely. Har- rington Ch. 19. 6. Indiana. Prior to 1833, the common law courts had exclusive cognizance of divorce suits ; but, by the Indiana statutes of 1838 and 1835 the courts of chancery have sole jurisdiction therein, and associate judges cannot, in the ab- sence of the circuit judge, determine such case. 4 Blackf. 132. 7. 'North Carolina. In Iforth Carolina, the Court of Equity may grant a divorce for adultery, either a mensa or a vinculo. 1 Dev. Ch. 352. 8. ITorth Carolina. The court has jurisdiction by statute, to declare void a marriage for the idiocy of one of the par- ties at the time of the marriage. 2 Ired. Ch. 470. 9. Iforth Carolina. In a suit for divorce for the lunacy of one of the parties at the time of the marriage, the court has no discretionary power in granting or refusing the divorce. 3 Ired. Ch. 91. 10. New York. The court has jurisdiction to declare a marriage void for other causes than those mentioned in the statute, giving the court jurisdiction, as for insanity, lineal consanguinity, &c. 4 Johns. Ch. 343. 11. New York. No court in New York possesses by the common law the jurisdiction exercised by the Ecclesiastical Court in England, to dissolve a marriage de facto, which was voidable merely. 2 Paige Ch. 501. 1.:. New York. Where it appeared in the wife's suit for divorce, that she came into the State with her husband a short time before filing her bill, and that he had continued to reside here since that tiifle, it was held that she was pre- sumed to have been a resident at the time of filing the bill. 4 Paige Ch. 460. 13. Massachusetts. Under the Massachusetts statute of 1786, the libel must be filed and notice ordered in the county where the parties live. 2 Mass. 117. But where the respondent was out of the State, the libel was filed and notice ordered in a county other than that in which the libellant lived, the order of notice being for the respondent to answer in the county where the libellant lived. 12 Mass. 312. JURISDICTION AND DOMICILE. 121 14. Massachusetts. "Where the husband and wife have no permanent place of residence, the libel may be sustained in the county where the libellant resides. 2 Mass. 167 ; 3 Mass. 184. Aliter, when the libellant only has changed residence. 2 Mass. 153. 15. Massachusetts. A libel for adultery will not be sus- tained in Massachusetts, if the parties lived in another State at the time the adultery was committed, although the libel- lant has since removed into the State. 3 Mass. 168 ; 6 Mass. 263. But if the parties lived in Massachusetts before the adultery, and the wrongdoer had removed out of the county and committed the offence, the libel would be sustained. 8 Mass. 158. 16. Maine. A libel for divorce for adultery- in the State may be tried in the county where the injured party lived at the time of the adultery. 9 Greenl. 140. 17. Maine. If the husband has forfeited his marital rights by misbehavior and has deserted his wife, they are capable of having different domiciles. lb. 18. Massachusetts. A divorce may be decreed in this State where the husband has left his wife, established his domicile in another State, and there committed adultery. lb. 19. Massachusetts. Unless a positive statute exists, it is not necessary that adultery should have been committed within the State, where a decree of divorce is asked for it. lb. 20. Massachusetts. If a wife, domiciled in another State, has been deserted by her husband, and establishes her resi- dence in this State, her rights as a married woman will be recognized here. lb. 21. Massachusetts. A decree was refused, where the wife filed her libel in Massachusetts, from which State her hus- band and herself had removed to H'ew York, in which latter State the desertion took place, her husband retaining his domicile there, although the wife had returned to the former State. The alleged desertion was no ground of divorce in l^ew York, and the courts of Massachusetts had no juris- diction. 14 Pick. 181. 22. Indiana. In a suit for a divorce, the lex domicilii is to govern the courts in their decision. 2 Blackf. 407. 122 LAW OF DIVORCE. 23. Indiana, A marriage took place in Kentucky where the parties lived. The husband then deserted the vrife and lived in open adultery in the State of Kentucky. Two years later the wife removed her residence to Indiana, and filed her libel. A decree was granted. lb. 24. Massachusetts. The domicile of the wife follows that of the husband' in the State. 11 Pick. 410. 25. New Hampshire. A husband, living in Vermont, com- mitted adultery in N'ew Hampshire. He afterwards deserted his wife, who thereupon removed to New Hampshire, after which he removed there also. Held, that a divorce for adultery could not be decreed in New Hampshire, as the parties, at the date of the adultery, lived in Vermont. 8 N. Hamp. 21. 26. New Hampshire. Parties were married in New Hamp- shire, and resided there for a time and then removed to New York, where the husband deserted the wife. She then re- turned to New Hampshire, and her husband committed adultery in Vermont. Held, that the marriage having been contracted in New Hampshire, and the wife lawfully re- siding there, the court of that State had jurisdiction of her application for a divorce. 10 N. Hamp. 61. 27. Ohio. Non-residents cannot sue for a divorce in Ohio. Wright 631. 28. Pennsylvania. In Pennsylvania, while the parties re- main subject to the jurisdiction of its courts, the marriage is dissolvable only by its laws ; when they'are remitted to another jurisdiction, it is incidentally remitted along with them. Not only does jurisdiction belong to the courts at the place of the domicile, but the retribution must be meted by their measure. The law of the domicile at the time and place of the injury, is the rule for everything but the original obligation of the marriage. 7 Watts 349. 29. Tennessee. It is not necessary that a petitioner for a divorce should be a resident in Tennessee a whole year, un- interruptedly, immediately preceding the filing of the peti- tion under the act of 1799. 5 Yerg. 203. 30. Tennessee. Necessary absence for more than a year, with an intention of returning to reside in the State, will JURISDICTION AND DOMICILE. 123 not be an abandonment of the State, so as to bar a person from the privileges of this act. Ih. 31. New Hampshire. In New Hampshire, the libellant must reside within the State to give the court jurisdiction, and the libel must be filed and made returnable within the county where the libellant resides, except where the libel having been filed in such county, a notice has been ordered, returnable in some other county, or where the court has permitted the libel to be filed in some other county, and has ordered a notice, returnable in the county of the residence. 8 N. Hamp. 160. 32. New Hampshire. In New Hampshire, the court has no jurisdiction over causes of divorce which arose while the parties had their domicile in another State. 12 N. Hamp. 200. 33. Tennessee. The provisions of the Tennessee act of 1885, place the question of jurisdiction in divorce cases upon the same ground, upon which cases in equity for the prosecu- tion of other personal rights rest. The domicile of the husband does not in that State, as in England, give jurisdic- tion. 6 Humph. 148. 34. Alabama. "When, by the law of an Indian tribe, the husband can dissolve the marriage, and his abandonment of his wife, he remaining within the jurisdiction of his tribe, is evidence of it, the efl'ect of this dissolution is the same as if directed by a lawful decree. 8 Ala. 48. 35. New Hampshire. In New Hampshire, where the par- ties resided in another State at the time of the desertion alleged, it must be shown, at what time, and under what circumstances, the libellant removed into the State, that it may appear whether the court there has jurisdiction. 13 N. Hamp. 222. 36. Connecticut. The Connecticut act, requiring that if the libellant shall have removed from another State or nation, he shall have resided in this State three years before the date of the libel, unless the cause of divorce shall have arisen subsequent to such removal, is applicable to a later act authorizing divorces on the ground of habitual intemperance and intolerable cruelty. 17 Conn. 284. 37. Connecticut. The continuation of the cause in an- 124 LAW OP DIVORCE. Other State, after the removal of the petitioner into this State, and down to the date of the petition, does not bring the case within the exception of the statute. lb. 38. Missouri. In Missouri, the'libel must allege the com- plainant has resided in the State one year next preceding the application, or that the offence complained of was com- mitted within the State, or while one or both the parties resided in the State. 10 Mis. 296. 39'. Pennsylvania. The removal and domicile of the hus- band and wife in another State, is no bar to proceedings for divorce on the part of the wife, for causes occurring in this State prior to the removal, if she has returned and resided in this State one year previous to the filing of the libel. 6 Barr 449. 40. Pennsylvania. The act of March, 1815, enacts that no person shall be entitled to a divorce who is not a citizen of Pennsylvania, and who shall not have resided therein one year previous to filing the libel. But the act of April, 1843, provides that the word "citizen" shall not apply to any woman who shall have a bona fide residence in this State at least one year before filing her petition. 6 Barr 449. 41. Louisiana. .The courts of Louisiana have no jurisdic- tion in an action to dissolve the marriage contracted in ano- ther State, where the husband continues to reside, for causes originating in that other State, although the wife resides in Louisiana. 1 La. An. E. 315. 42. ISTew Hampshire. In New Hampshire, a libel for di- vorce from a marriage contracted without the State, must aver specially a residence within the State prior to the time when the cause of divorce arose. 14 IST. Hamp. 380. 43. N'ew Hampshire. To sustain a libel for habitual drunkenness, the libellant must have had a legal domicile in the State for the whole of the three years during which the drunkenness existed. lb. 44. 'Eew Hampshire. A marriage was celebrated in New Hampshire and the parties resided there several years. The husband afterwards left his wife without support, and re- moved to another State. The wife subsequently left the State. After her departure, the husband returned and con- tinued to reside in New Hampshire up to the date of the JURISDICTION AND DOMICILE. 125 libel. Held, that there was no desertion on her part, and that the court had jurisdiction of her libel, she having a domicile in ifew Hampshire by virtue of his residence in the State. 15 N. Hamp. 159. 45. New York. The domicile of the husband is prima facie that of the wife ; but if separated by a decree of a com- petent court, and the wife remains in the same plq,ce, that presumption is rebutted. 12 Barb. 640. 46. 'New York. A change of domicile requires no certain length of time, and length of time alone is not sufficient. There must be a bond fide and permanent intent, animus et factum. lb. 47. Maryland. The Maryland acts, authorizing the courts of equity to decree divorces in certain specified cases, do not divest the legislature of all power over the subject, or give to the equity courts of the State exclusive jurisdiction of the subject. 2 Md. 429. 48. Maryland. Jurisdiction in divorce matters was con- ferred upon the Equity Court of Maryland by the act of 1841, c. 262, with the supplements of 1843, c. 287, and 1844, c. 306. 2 Md. Ch. Decis. 316. 49. Pennsylvania. The Pennsylvania legislature has no power to decree a divorce for causes over which the courts have jurisdiction. 2 Jones. 350. 50. Alabama. The law of the place of the parties' actual domicile must govern in all questions of divorce, without regard to the law of the place where the marriage was cele- brated. 19 Ala. 499. 51. Texas. Where a divorce is sought on the ground of abandonment, it is not necessary under the statute that both parties should have resided in the State at the time of the abandonment. 10 Texas 355. 52. Illinois. The revised istatutes do not confer unlimited discretion upon the courts to grant divorces, in all cases wherein they may deem it expedient or advisable. 15 111. 120. 53. Mississippi. The Circuit Courts have equity jurisdic- tion which extends to cases of divorce. Alimony, being an incident of proceedings, may be granted by them, and they 126 LAW OF DIVORCE. are required to do whatever chancery is required to do in such cases. 5 Cush. 630. 54. Rhode Island. The Supreme Court of Rhode Island, in the exercise of the discretion vested in it to dispense with three years' residence in the State by an applicant for a divorce, will take cognizance, if it has jurisdiction over the parties, where the causes of divorce occurred in that State, or were causes of divorce under the laws of the State where they occurred ; in all other cases they refuse to receive .evi- dence to rebut the presumption that the petitioner came into the State for the sole purpose of procuring a divorce. 3 R. I. 185. 55. ITorth Carolina. The provision in the statute regard- ing divorces, that no person shall be entitled to sue, unless he or she shall have resided in the State three years, is not complied with by considering the domicile of the husband to be the domicile of the wife. 2 Jones Eq. 367. 56. Wisconsin. The courts of "Wisconsin have jurisdic- tion whenever the complainant is domiciled within the State, although the marriage and causes of divorce have occurred elsewhere, and although the defendant has never been in the State, or been served with process. 4 Wis. 64 ; 3 Wis. 662. 57. ISTew York. Under the revised statutes, authority to entertain proceedings in habeas corpus in the case of a wife separated from her husband applying for the custody of her minor child, is vested only in the Supreme Court, and a sin- gle judge of that court, or a county judge, has no jurisdiction. 24 Barb. 521. 58. New Hampshire, When the alleged cause of divorce is such that it must have continued three years next pre- ceding the filing of the libel, in order to entitle the party to a decree, it must be alleged in the libel and proved by the evidence that the domicile of the libellant has been in this State during that period, in order to give the court jurisdic- tion to decree a divorce. 35 N". Hamp. 274. 59. Rhode Island. By the statute law the jurisdiction of the courts in divorces, whether a mensa or a vinculo, depends solely upon the residence in the State or citizenship of the ' ' petitioner. 4 R. I. 87. 60. Rhode Island. By the general law, the jurisdiction JURISDICTION AND DOMICILE. 127 of the courts of a country, in divorce, depends not upon the place of the marriage or the breach of its duties, but upon the right of a country to determine the status of its own citizens, a party to the relation. Jurisdiction over the peti- tioning party alone, as a citizen of a State, is sufficient by the general law to give jurisdiction to the courts of the State to divorce the party upon such notice, personal or construc- tive, to the other party, whether he be present or absent from the State, as is possible or customary under the circum- stances, lb. 61. Rhode Island. Although, in general, the domicile of the husband is the domicile of the wife, yet, if he be guilty of such act or dereliction of duty in the relation as entitles her to have it partially or totally dissolved, she may esta- blish a separate jurisdictional domicile of her own. lb. 62. Rhode Island. A female citizen of Rhode Island, married in Ifew York to an Englishman, with whom she lived for several years abroad, and by whom she was finally deserted in Massachusetts, is entitled to a divorce a vinculo in Rhode Island, although the husband has never been within the jurisdiction of Rhode Island, and although only constructive notice by publication was given him. lb. 63. Missouri. Under the Missouri laws, a petition for divorce must be dismissed, unless the applicant is a resident of that State. 25 Miss. 68. 64. New York. The adultery was committed in New York during the residence of the parties in that State. The defendant resided in the city of New York at the time of the trial as well as of the filing of the libel. Held, that the Superior Court of New York city had jurisdiction of the libel. 6 Duer 102. 65. Alabama. The jurisdiction of the Alabama courts to grant a divorce to a party having a domicile there, is not de- pendent upon the place at which the act complained of occurred. 29 Ala. 719. 66. Alabama. It is a settled general rule of law that the domicile of the wife follows that of the husband, but as an exception to this rule, it is held, that the wife must be allowed to acquire, in the State where she is living at the time of the act complained of, a distinct domicile from her husband's. 128 LAW OP DIVORCB. after the occurrence of a legal and adequate cause of divorce, for the purpose of obtaining the divorce. lb. 67. California. Under the act requiring six months' residence in California immediately preceding an application for a divorce, the wife's residence is of no importance, pro- vided her husband has resided within the State the requisite time, for her domicile follows her husband's. 3 Cal. 312. 68. Indiana. On application by the husband for a divorce on the ground of abandonment, the plaintiff made an affi- davit of residence here, and, after notice by publication, the defendant was defaulted ; there was evidence of abandon- ment. Held, that a divorce might be granted, though the cause originated in New York, where both parties at the time resided. 10 Ind. 436. 69. Louisiana. The affidavit of the appellant, in a suit for divorce, that his interests involved in the suit exceed $300, is sufficient to give that court jurisdiction. 12 La. Ah. 59. 70. New Hampshire. When the desertion took place in Massachusetts, where the parties resided, and the wife re- moved to this State, remaining here three years, during which the desertion continued, a divorce was decreed. 34 N. Hamp. 518, 71. Arkansas. In the exercise of jurisdiction in matters of divorce, the chancery courts should employ the same rules of law which the ecclesiastical courts do, except when they are unsuited to our courts, or in conflict with constitu- tional or statutoiy provisions, or the general spirit of our laws. 18 Ark. 320. 72. Alabama. The husband has a right to emigrate and acquire a new domicile, and thereby acquires the right of having his matrimonial status controlled by the laws and judicial tribunals of the country of his new domicile, although his wife remains in the State which he left. 28 Ala. 12. 73. Alabama. Under the Arkansas statute, the fact that the cause of divorce commenced and existed out of that State, and was not continued or completed there, would not render void a decree there obtained by the husband, who had resided an entire year in that State. lb. 74. Alabama. A divorce obtained in Arkansas by a per- JURISDICTION AND DOMICILE. 129 son domiciled in Alabama would be void, if the decree were procured by fraud, or if the defendant did not go to Arkan- sas animo manendi, or if he went merely to obtain a divorce and with no intention to remain longer than was necessary to effect his purpose. lb. 75. Pennsylvania. Our courts have no jurisdiction to decree a divorce on the ground of desertion, where the mar- riage and alleged desertion took place in a foreign country, and the defendant never was within the jurisdiction of the court. The act of April, 1850, giving jurisdiction on the ground of desertion, where the parties at the time of the occurrence were domiciled in any other State, applies only to parties domiciled in one of the United States. 6 Casey 412. 76. Alabama. To authorize a decree of divorce, where the defendant is a non resident, proof must be made of the plaintiff's bond fide residence in this State for one year next before the filing of the bill; otherwise the bill should be dismissed without prejudice. 30 Ala. 494. 77. Louisiana. The abandonment, which is made a ground of separation from bed and board, to be a good cause of action, must have originated, while the parties were domi- ciled in this State. 13 La. An. 1. 78. Louisiana. "Where the marriage took place in 'Sew York, and the wife always lived there, the husband, who subsequently removed to Louisiana, cannot maintain an action for separation against his wife, by summoning her to his domicile in Louisiana. lb. 79. Illinois. In an action of divorce in a Circuit Court of Indiana, an objection to the jurisdiction in that county, after trial and verdict, is bad. 19 111. 269. 80. United States. The courts of the United States have no jurisdiction upon the subject of divorce, or for the allow- ance of alimony, either as an original proceeding in chan- cery, or as an incident to a divorce a vinculo, or from bed and board. 21 How. U. S. 582. 81. Maine. The Supreme Judicial Court of Maine can- not decree a divorce to parties who were married in a foreign country, if they have not cohabited in this State since the 9 130 LAW OF DIVORCE. \ marriage, and only one of them has ever been a resident here. 45 Maine 377. 82. Alabama. If the defendant be a non-resident, the plaintiff must allege and prove his ovpn residence in the State, during one year immediately preceding the applica- tion. 33 Ala. 486. 83. California. The Supreme Court of California has ap- pellate jurisdiction. 10 Cal. 249. 84. Iowa. " Resident," in the code, c. 86, means not an actual residing alone, but such a residence, as that when a man leaves it temporarily, he has an intention to return to, and which is de facto and de jure his domicile, his residence, and from which he has no present intent to move. 1 Clarke 36. 85. Indiana. The courts of common pleas have concur- rent jurisdiction in divorce cases with the circuit courts in Indiana. 16 Ind. 126. 86. New York. The Superior Court of the City of New York has jurisdiction of actions for divorce. 11 Smith 501. 87. New Jersey. The applicant for divorce resided in New Jersey for four years, during which time she was aban- doned by her husband. From that time she continued to reside in Vermont. Held, that the court had no jurisdic- tion. 2 Beasley 280. 88. Indiana. An applicant for divorce, a bondjide resident at the time of filing the application, and having been so for one year previous thereto, does not deprive the court of ju- risdiction by removing his residence before the time of trial. 18 Ind. 449. 89. Indiana. The statute of 1848 gives the Common Pleas Court jurisdiction in divorce. 20 Ind. 101. 90. Iowa. The District Court has jurisdiction in cases of divorce, where the plaintiff resides in the county, without regard to whether or not the cause of complaint occurred in the county or State. But such residence must be bond fide, and not for the express purpose of bringing his suit for di- vorce there as a resident. 4 Greene 266. 91. Vermont. Jurisdiction to grant divorces and annul marriages never having been exercised by the ordinary law courts of England, could not be exercised by the courts of JURISDICTION AND DOMICILE. 131 law in this country until vested in them by the legislature, but was in abeyance or vested in the legislature itself. 35 Vermont 365. 92. Vermont. "When jurisdiction of the subject is be- stowed upon any tribunal, it is to be exercised and enforced according to the settled principles and practice of the English ecclesiastical courts, so far as applicable to the altered con- dition of things here and the spirit of our laws ; and it is not a mere statutory jurisdiction, limited wholly to the terms of the statute, lb. 93. New Hampshire. An offence committed, when both parties were without the jurisdiction of the court, is not a ground for divorce. 17 N. Hamp. 251. 94. Ifew Jersey. When an actual residence is adopted in this State, under circumstances which warrant the con- clusion, that the change of residence .was made for the pur- pose of obtaining a divorce, sound policy fbrbids.that the judicial tribunals of this State should be used by citizens of other States, in evasion of their own laws, or to procure re- dress, for which resort should be had to their own tribunals. '1 McCarter 78. 95. North Carolina. The domicile of the husband draws to it the domicile of the wife ; therefore, by Rule 14 of the Revised Code, where both parties are residing in this State, a bill by the wife for a divorce for the cause of impotency, must be brought in the county where the husband resides. 6 Jones' Eq. 360. 96. Mississippi. The Court of Chancery has jurisdiction to entertain a suit for divorce. 9 George 64. 97. Maine. A divorce by act of the legislature is valid in a case of which the court, under existing laws, has no jurisdiction. Especially, if it be granted by consent of the parties, and their consent may be inferred from their acts. 51 Maine 480. 98. Georgia. The Superior Court h^s jurisdiction of a libel for divorce, filed by a citizen against a respondent, who has been a resident but is absent at the time, when service by publication has been had, and the libellee's attorney has ■appeared and filed a plea to the merits, without pleading to the jurisdiction, 31 Geo. 223. 132 LAW OF DIVOKOE. 99. Indiana. The courts of this State have jurisdiction, under the statute, to grant a divorce upon a cross petition by a non-resident, where they had jurisdiction of the original cause. 24 Ind. 355. 100. Indiana. In this State, the residence of the plaintiff, and not the residence of the defendant, gives jurisdiction in divorce cases ; and process may be served in any county, and service by copy is personal service. 24 Ind. 468. 101. "Wisconsin. The County Court of Milwaukee has concurrent jurisdiction with the Circiiit Court for said county, where the amount in controversy is less than $20,000. Held, that said court has jurisdiction of an action for divorce, brought by the husband, where the complainant avers the amount and value of his property, and that it does not ex- ceed $20,000. 19 Wis. 531.' 102. Indiana. In case of final separation of husband and wife, and their'actual permanent residence in different States, the domicile of the husband does not fix that of the wife, so as to determine the question of jurisdiction in a suit for divorce. 24 Ind. 355. 103. New Jersey. A citizen of another State, who brings his effects into this State for the purpose of establishing a residence here, with the manifest intention of procuring a divorce, and immediately commencing a suit for that pur- pose, is not an inhabitant or resident of this State, within the meaning of the act concerning divorces, and the court will not maintain jurisdiction of a suit for divorce under such circumstances, although the charge of adultery is clearly proved against the defendant. 1 Green 107. 104. Pennsylvania. The act of April 26, 1850, gave the courts jurisdiction in cases of desertion, notwithstanding the parties were at the time of the desertion domiciled in another State. It did not reach a case where the parties were domiciled in any foreign country. 12 "Wright 226. 105. Pennsylvania. The law of domicile implies, that it is the actual domicile of both the parties, or was when the offending party left it. "When the inj ured party seeks a new and different domicile, there is no reason why the husband's new domicile should prevail over the wife's, nor vice versd. Neither should draw the other into the folds of a foreign JURISDICTION AND DOMICILE. 133 jurisdiction. K a wife, enjoying here the comforts of home and friends, should refuse to follow the whim of her hus- band into western wilds, on what principle of natural justice shall the husband's new abode draw his wife's domicile thither? The publication of notice makes no difference, for back of it lies the want of power of the distant State to subject her to its jurisdiction. Ifothing short of possession of the person before or at the time of the proceeding can justify this. 5 P. F. Smith 875. 106. Pennsylvania. The injured party in the marriage relation must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicile of both. 12 P. F. Smith 308. 107. Massachusetts. There is no presumption of the juris- diction of a court of record of another State over a non- resident libeller in divorce, whose citation does not appear by the record. 97 Mass. 538. 108. l^ew York. The Supreme Court has no jurisdiction to declare a marriage void, on the ground that one of the parties was divorced from a former husband for adultery, and forbidden- by the decree of the court to marry again during the life of her husband. 48 Barb. 566. 109. Massachusetts. A husband and wife were married in Massachusetts, where they resided for a time. Subse- quently, with intent to remove, they started westward, and while temporarily sojourning in Philadelphia, acts of cruelty were committed. The wife then returned alone to Massa- chusetts and commenced an action for divorce. Held, that the courts of Massachusetts had jurisdiction. 98 Mass. 158. 110. Florida. It must be alleged in the bill and proved, that the applicant for divorce has resided in the State for two years prior to the term of the application, otherwise no divorce can be granted. 12 Fla. 449. 111. Maine. The Supreme Judicial Court cannot divorce from the bonds of matrimony a husband and wife, who were married without the State, and who, since their intermarriage, have only been in it a few days on a visit. 3 Virgin 365. 112. Delaware. The doctrines of the ecclesiastical courts on divorce, will, as far as applicable, be recognized by our courts. 2 Har. 38. 184 LAW OF DIVORCE. 113. Connecticut. There is no proceeding known to our common law or to our system of equity, by which the mar- riage relation can be dissolved. Divorce is the special crea- ture of statute. The manner in which the superior court shall proceed, and the rules by which it shall be governed in acting upon applications for divorce, are not prescribed by the statute, and both are therefore left to its discretion. 35 Conn. 48. 114. Connecticut. "Where, therefore, while a petition for divorce was pending, which had been brought before the petitioner had resided three years in the State, as required by the statute, a supplemental bill was allowed to be filed, after she had resided three years in the State, it was held, that the proceeding was not void, although such a practice was not to be sanctioned. lb. 115. Illinois. The statute does not confer upon the courts an unlimited discretion to grant divorces whenever they may deem it expedient or advisable. Their power to act is derived solely from the statute, and they must conform strictly to its requirements. 51 111. 162. 116. Kentucky. A circuit court is authorized to decree a separation or divorce a mensa for any such cause, as it may, in its discretion, deem sufficient. This discretion is not ar- bitrary or unlimited, but a sound legal discretion, and only to be exercised for such causes as may be deemed sufficient, when considered with a just and reasonable regard to the legal rights and obligations of both parties. 4 Bush. 435. 117. Kentucky. The residence of the husband is in legal contemplation the domicile of the wife, while the marriage relation continues, although they may be living separately and in different States. Hence the wife is not entitled to a divorce in Kentucky for abandonment, without proof that abandonment was a ground of divorce in New York where the husband lives, and where the abandonment took place. 5 Bush. 670. 118. New York. The appearance of the defendant in Illinois gave the court of that State jurisdiction over the persons of both parties, and whether the court could grant a divorce depended, not on jurisdiction, but upon the plead- ings and evidence in the case. 58 Barb. 425. JURISDICTION AND DOMICILE. 135 119. New York. The common law maxim, that the domicile of the wife follows that of the husband, has no application in an action for a divorce, where a separation has actually taken place. In such a case, the law will recognize the wife as having a separate existence and separate rights. 12 How. Pract. 32. 120. Maryland. . Courts of equity in Maryland, on appli- cations for divorce, sit, not in the exercise of their ordinary equitable jurisdiction, but as divorce coui-ts, and must be governed by the rules and principles established in the eccle- siastical courts in England, so far as they are consistent with the provisions of the code. 38 Md. 401. 121. N'ew Jersey. The residence required to give the court jurisdiction means fixed domicile or permanent home. 5 C. E. Greene 263. 122. Massachusetts. Proof that the husband and wife lived at the same time in the State, but without cohabiting or having any communication with each other, is not proof that they lived together as husband and wife here within the meaning of the statute. 103 Mass. 574. 123. Massachusetts. The terms "lived together in this State as husband and wife," mean, that they must have had a domicile here. 103 Mass. 575. 124. Illinois. The statute does not confer on the courts an unlimited discretion to grant divorces, whenever they may deem it expedient or advisable. Their power is derived solely from statute. 51 111. 162. 125. "Wisconsin. The residence of one year required of the plaintiff in divorce to give the court jurisdiction, is such as would subject him to taxation and to the service of pro- cess in this State. 25 Wis. 600. 136 LAW OF DIVORCE. Station ox %iM, INDEX OF SECTIONS. Alabama, 27, 33-36, 40, 46, 79. (Jalifornia, 72. Delaware, 3. Florida, 85. Georgia, 54, 78. Illinois, 49, 53, 61, 73. Indiana, 70, 75. Iowa, 20, 62, 68, 69, 74, 83. Maine, 21, 23. Massachusetts, 13, 14, 16-19, 92. Maryland, 45. Michigan, 87, 90. Missouri, 47, 48, 86. North Carolina, 26, 59, 81, 83. New Hampshire, 15, 25, 56-58, 60, 66, 67, 71. New Jersey, 9-12, 76, 80, 91. New York, 1, 3, 4^8, 28-31, 64, 65, 84, 89, 93. Pennsylvania, 22, 24, 55, 63, 88, 94. Rhode Island, 89. Tennessee, 50. Texas, 32, 37, 41-43. Vermont, 38, 44. Wisconsin, 53, 77. 1. New York. As to whetlier charges of adultery and cruelty can be joined in the same bill of divorce, vide 1 John. Ch. 488. 2. Wew York. A divorce will not be decreed upon tak- ing the bill p7~o eonfesso merely ; but the facts will be first ascertained. Hopk. 118. 3. Delaware. A feme covert cannot file a bill against her husband without a prochein ami. Harrington Ch. 19. 4. lyTew York. A charge of adultery cannot be joined in a bill with a charge of cruel usage. 6 John. Ch. 163; 4 Paige Ch. 92. 5. New York. On a bill for a divorce for adultery, it is sufficient to charge the offence as having been committed with one or more persons to the plaintift" unknown. 6 John. Ch. 347. 6. New York. In a suit for divorce, the charge of adul- tery, whether in crimination or recrimination, should be stated with such reasonable certainty as to time, place, and person, that the party may be prepared to meet it on the trial. 2 Paige Ch. 108. 7. New York. Under the revised statutes, a bill for divorce must be filed within five years after the plaintiff has had notice of the facts, although the illicit intercourse PETITION OR LIBEL. 137 continued up to the commencement of the suit. 6 Paige Ch. 207. 8. New York. A wife's bill for a divorce a mensa, for the cruelty of her husband, must be filed by her next friend. A question may arise, as to whether the prochein ami is a responsible person. 8 "Wend. 357. 9. New Jersey. In a bill for a divorce, a charge of cruelty cannot be united with a charge of extreme cruelty. 1 Green Ch. 294. 10. New Jersey. A prayer for a divorce and a prayer for relief, founded on charges which require an answer on oath, cannot be united in the same bill. An answer under oath is prohibited by statute. lb. 11. New Jersey. In New Jersey, a wife may apply for a divorce for any cause, in her own name, without the inter- vention of a prochein ami. 3 Green Ch. 171. 12. New Jersey. In a bill for divorce, a general charge of adultery against the defendant, without setting out time, place and circumstances, is not sufficient. Saxton 474. 13. Massachusetts. Libels should be subscribed by the libellants, and not by attorney or guardian. 4 Mass. 506; 7 Mass. 96 ; 1 Met. 382. 14. Massachusetts. Where the libellant stated her maiden name to be Saunders, and in the copy published the name was Saundess, the notice was considered insufficient on account of the variance. 7 Mass. 94. 15. New Hampshire. In New Hampshire a libel, founded on the husband's neglect to support the wife, must state with certainty, where the marriage was solemnized, and that the husband had been an inhabitant of the State. 5 N. Hamp. 476. 16. Massachusetts. "Where a libel alleged adultery on one day, the court permitted an amendment, charging the crime on another day, and granted the respondent a contin- uance. 4 Mass. 506. 17. Massachusetts. In libels for divorce a vinculo for adultery, the person with whom the adultery is supposed to have been committed must be named, or there must be an averment that the particeps criminis is unknown to the libellant. 3 Mass. 157, 397. 138 LAW OF DIVOKCK. 18. Massachusetts. A charge of extreme cruelty and a charge of adultery may be joined in the same libel, and the court will decree a divorce according to the evidence pro- duced. 4 Mass. 430. 19. Massachusetts. "Where a libel charged generally va- rious acts of adultery at divers times, with persons unknown, during eight years, the court ordered the libellant to file a bill of particulars. 11 Pick. 454. 20. Iowa. A libel for divorce a vinculo for adultery may be amended, by adding a charge of extreme cruelty, and praying for a divorce a mensa et thoro. 4 Greene 100. 21. Maine. The -wife, although under the age of 21, may in her own name, without acting by guardian or next friend, file her libel for divorce. 6 Shep. 308. 22. Pennsylvania. In Pennsylvania, a wife may file her bill under the act of 1815 for a divorce a vinculo or under that *of 1817 for alimony at her election. 1 Watts 264. 28. Maine. A written motion to dismiss the libel for causes stated, may be equivalent to pleading the same matter in abatement. 6 Shep. 308. 24. Pennsylvania. The libellant can only have such a decree as is prayed for in the libel. 1 Ashmead 52. 25. E'ew Hampshire. A libel on account of abandonment and refusal to cohabit, should contain an allegation in some form, that the abandonment and refusal continue up to the filing of the libel. An allegation that the respondent still refuses to cohabit suffices. 18 N. Hamp. 222. 26. l^orth Carolina. A libel, alleging cruelty and indigni- ties oftered to the wife's person by the husband generally, is not sufficient. The facts should be alleged specifically, and are to be found by the jury ; the sufficiency of the facts to justify a divorce is to be judged of by the court. 7 Ire- dell 484. 27. Alabama. A libel, alleging cruelty, must state the facts which constitute such cruelty. But this can only be taken advantage of by assigning it as a cause of special demurrer. 10 Ala. 527. 28. New York. "Where a wife files a bill against her husband for a divorce on the ground of adultery, containing a prayer for relief adapted to the charge of adultery only. PETITION OR LIBEL. 139 the bill is not rendered multifarious by the insertion therein of charges of cruel treatment. 11 Paige 161. 29. "New York. But if such bill is so framed as to entitle her to a separation if she fail to establish the adultery, it is multifarious. 11 Paige 166. 30. New York. Where such bill is bad on demurrer, it is good ground for refusing an application by the wife for alimony and her expenses in conducting the suit for di- vorce, lb. 31. !N"ew York. If the person be unknown with whom the alleged adultery was committed, the bill should state particularly the place where the offence occurred, as at a specified house, or the like ; but an allegation that the offence was committed in the city of ITew York with a female whose name is unknown to the plaintiff, and the particular circumstances are unknown to her, will not suffice. 4 Sandf. Sup. Ct. 692. 32. Texas. In a libel, explicit statement is necessary, in order to enable the defendant to prepare for his defence, and proofs should not be received to sustain mere general charges without specifications. 3 Texas 168, 336. 33. Alabama. In a bill for' a divorce, an averment of the marriage, of the residence of the complainant in this State for the preceding three yeiars, and of the abandonment of the husband for three years, without the intention of return- ing, are sufficient. The willingness of complainant to receive and live with her husband need not be averred. 15 Ala. 779. 34. Alabama. A libel for a divorce a vinculo, which alleges cruelty, abandonment and adultery, is not multifa- rious. 19 Ala. 363. 35. Alabama. A bill for a divorce is not demurrable be- cause it alleges two distinct grounds of divorce. 20 Ala. 168. 36. Alabama. "Where the bill alleges that the husband drove the wife out of his house, and lives in adultery with another woman, the case is within the Alabama statute, and is equivalent to an allegation that he abandoned her. lb. 37. Texas. Vague allegations in a petition for divorce, without specifying time, place or circumstances, are not allowable. 6 Texas 3. 140 LAW OP DIVORCE. 38. Vermont. In a libel for the cause of severity, no particularity of specification is necessary; but if it be for adultery, the petition should set forth the particeps eriminis, and the time and place of committing the offence, and if not particularly set forth in the libel, the respondent will be entitled to specifications before the testimony is taken. But where no such specification can be given, the party relying upon presumptive evidence of guilt with some unknown person, the court will excuse the party from giving such specification and only require a statement of the evidence relied upon. 25 Vt. 713. 39. Ehode Island. If a petition for a divorce state the grounds in the language of the statute, it is sufficiently spe- cific, except in the case of gross misbehavior and wicked- ness, in repugnance and violation of the marriage contract, when the court requires the petition to specify in what the misbehavior consisted. 2 R. I. 381. 40. Alabama. A libel need not set forth specifically every act of cruelty complained of; one or two specifications are sufficient, and the evidence may make out others under the general charge. 23 Ala. 785. 41. Texas. In a petition for a divorce for cruel treatment, the acts of cruelty should be stated, with specifications as to time, place, &c. 7 Texas 538. 42. Texas. The petition for a divorce for abandonment should state fully and distinctly such facts, as will show that the abandonment was really voluntary and without suffi- cient cause. It is not sufficient to allege that it was with- out any known cause or provocation. 10 Texas 355. 43. Texas. The filing of a petition for a divorce, grounded upon the supposed adultery of the wife, is not a sufficient ground to support a cross petition by the wife praying to be divorced. 13 Texas 468. 44. Vermont. It is fatal to a petition for a divorce that it is not signed by the libellant, and that the summons was signed by a justice of the peace. 1 "Williams 786. 45. Maryland. A supplemental bill for divorce which re-avers the allegations of the original bill, and is filed and received without objection by the defendant, is treated as part of the case, and facts occurring before the filing of the PETITION OR LIBEL. 1-41 supplemental bill will be considered as supporting the plain- tiff's case. 7 Md. 537. 46. Alabama. A bill may be filed in the county where the defendant resides. 27 Ala. 704. 47. Missouri. A petition is not sufficiently specific, which only charges, in general terms, that one party offered to the other indignities, which rendered his or her condition in- tolerable. 4 Bennett 351. 48. Missouri. A petition for desertion for more than two years must state, that the defendant remained absent that length of time without reasonable cause. 4 Bennett 354. 49. Illinois. If a bill for a divorce avers a marriage, which is confessed or not denied by the answer, it may be regarded as waiving any issue on this allegation. 16 111. 85. 50. Tennessee. To authorize a divorce for desertion, it must be averred in the petition, that the desertion was wil- ful and malicious and without reasonable cause, and this averment must be verified by proof. Malice in fact was in- tended by the statute a"nd not malice in law. 2 Swan 591. 51. United States. A libel for divorce should be answered before the filing of a cross bill. 1 Hemp. 88. 62. Wisconsin. If a bill for a divorce be defective in its allegations, no divorce can be decreed upon it, whatever be the amount of evidence introduced, or even if the verdict of a jury be found in its favor. 4 Wis. 135. 53. Illinois. A bill, brought by a wife for a divorce, should not be dismissed with costs for the respondent. 17 111. 66. '54. Georgia. The defendant may, on the trial of the libel, plead in bar to the plaintiff's right to recover, that the libel was prosecuted at the instance of others than the libellant and without her consent. 19 Geo. 265. 55. Pennsylvania. A libel for divorce must set forth particularly and specially the causes of complaint ; it is not sufficient to allege in general terms that the marriage was procured by fraud, force and false representations. It seems that such defect in the libel may be cured by filing a specifi- cation of the facts intended to be proved. A libel is de- fective which has not an affidavit attached, that the facts set forth therein are true to the best of the libellant's know- 142 LAAV OF BIVOKCE. ledge and belief, and that the complaint is not made out of levity or by collusion between the said husband and wife, and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes men- tioned in said petition or libel. 6 Casey 417. 56. New Hampshire. In a libel, proof of adultery at a different place from the one alleged is insufficient ; but the libel may be amended so as to meet the proof in this partic- ular. A charge of adultery with persons unknown to the libellant, is sufficient to admit evidence of the act with any person identified in the evidence. 20 IS". Hamp. 299. 57. ITew Hampshire. There must be evidence sufficient to warrant a decree at the time of filing the libel ; but where adultery is the basis of the suit, the libel may be amended so as to charge acts committed at any time before the decree. Ih. 58. 'Eew Hampshire. A libel for a cause, that by law must coiitinue to exist at the time of its being filed, is de- fective, if dated before it is filed. 37 If. Hamp. 191. 59. !f[orth Carolina. The charges in the petition must be in legal language, and articulate and certain as to acts, persons, times and places. 5 Jones' Law 202. 60. l!few Hampshire. A decree, dismissing a libel, upon a hearing on the merits, is a bar to any future libel for the same cause; aliter, if the libel be dismissed for defect of proper allegations, or for want of prosecution, qr on motion of .the libellant. 37 IST. Hamp. 536. 61. Hlinois. A bill, filed for a divorce, is to be taken against the party filing it as true. 22 111. 390. 62. Iowa. In cases of divorce, it is not necessary that the petition should be sworn to in order to give the District Court jurisdiction of the cause. 5 Clarke 232. 63. Pennsylvania. An amended libel will be allowed by the court to be filed where it presents no new case, but only a more specific statement of the cause of complaint originally made. 1 Wright 443. 64. ISTew York. A libel on the ground of improper con- duct and threatened violence should set out the acts. 32 Barb. 203. 65. JSTew York. If the libel prays only a divorce a mensa, PETITION OR LIBEL. 143 a demurrer must be sustained, if the facts alleged do not entitle the party to that relief, though they do to a divorce a vinculo, because, under his prayer, he cannot have the latter relief, unless an answer be put in, and the respondent may never answer. lb. 66. ISTew Hampshire. A libel, alleging that the respondent has so treated, and still does so treat the libellant, as seriously to injure the health of said libellant, is insufficient, unless it also contains a specification of the acts complained of. And when the charge is extreme cruelty, the acts com- plained of should ^be set forth with such particularity of time, place and circumstances, as to give the respondent notice, not only of the general charge made against him, but of the main facts upon which the charge is to be sustained. 43 K Hamp. 164. 67. New Hampshire. In a libel for divorce for cruelty, the acts relied on must be specified with reasonable certainty as to time, place and circumstances, and, if the application is delayed so long as to raise a presumption of condonation, sufficient excuse for the delay must be shown. 48 ]!f. Hamp. 234. 68. Iowa. A husband's petition for divorce, on the ground of his wife's wilful absence, is insufficient, unless it alleges that the absence was "without a reasonable cause" or " with- out sufficient cause." 4 Greene 824. 69. Iowa. A petition for divorce should show ^nmd/aaV, that the complainant is the injured i^arty, so that the essen- tial facts may be proved before a divorce is decreed for de- fault, lb. 70. India'na. The provision, that it shall be deemed suffi- cient evidence of good character, if the petitioner satisfy the court or jury, that she had for two years prior to filing her peti ion maintained a good reputation for chastity and virtue, does not require that the petition itself should allege such fact. 23 Ind. 888. 71. IJfew Hampshire. A libel for divorce should contain allegations of every fact, the existence of which is made necessary by the statute, in order to the granting of the divorce. 45 K Hamp. 121. 72. California. The petition should allege the residence 144 LAW OF DIVORCE. of the applicant in the State for the preceding six months, and this fact should be proved on the trial, although it be not denied in the answer. 28 Cal. 599. 73. Illinois. An allegation in a bill for a divorce for adul- tery, that the adultery was committed in 1860 in the county of Vermilion and at sundry times since, was held sufficiently definite so far as the venue is concerned. The time might have been more specific, but it is sufficient that it was alleged that it was before the commencement of the suit. 33 111. 286. 74. Iowa. The petition for divorce must state the specific facts of inhuman treatment relied upon as the ground of relief; it is not sufficient to allege generally, that the defend- ant is guilty of such inhuman treatment as to endanger life. 19 Iowa 33. 75. Indiana. A petition for divorce by the husband con- tained no allegation that the plaintiff was without fault, but alleged that the peace and happiness of the family were destroyed, in consequence of the violent temper and miscon- duct of the defendant. Held, that the allegations were suffi- cient to charge the fault upon the defendant. 26 Ind. 330. 76. JSTew Jersey. "Where a libel charged the defendant with adultery with divers persons and at divers places, and that on different days in different years, but on what particu- lar days the complainant was ignorant, the defendant had committed adultery with one H., and that the defendant is now and for a long time past has been living in adultery with said H., it was held insufficient, as it did not state suffi- ciently the time, place and circumstances, under which the adultery was committed. 1 Green 391. 77. "Wisconsin. A complaint alleged abandonment, and that the defendant wholly neglected to provide for the plain- tiff or furnish her a home, and that she has been under the necessity of residing with her parents since that time. Held, that wilful desertion not being alleged, a divorce a vinculo could not be decreed, and the words " not being of sufficient ability" being omitted, there could not be a divorce a mensa. 20 Wis. 252. 78. Georgia. An action for divorce a vinculo cannot be maintained by a prochein ami in the name of a lunatic wife. The right to bring such suit is strictly personal and under PETITION OR LIBEL. 145 the exclusive volition and control of the person injured by the infidelity of the other. 36 Geo. 45. 79. Alabama. Where each party files a bill for divorce, one for cruelty and the other for adultery, and both the charges are sustained, each will be considered a bar to the other. 39 Ala. 348. 80. New Jersey. A general charge that the wife is an adulteress, is not sufficient to support a bill for divorce. The adultery must be designated, either by the adulterer's name, or by circumstances, and the time when and place where such adultery was committed. 8 Green 444. 81. Iforth Carolina. A petition for divorce for adultery need not allege the petitioner's innocence thereof. Phill. 534. 82. Iowa. To entitle one to a divorce on the ground of inhuman treatment, it is not necessary to establish all the specifications of the petition, nor precisely as laid. 23 Iowa 433. 83. North Carolina. Where the filing of a petition had been delayed seven years, it was. accounted for, by the peti- tioner at the time the right of action first existed, having been a non-resident of the State and a pauper. Phill. Eq. 215. 84. New York. In an action for divorce for adultery, the complaint alleged that the defendant had committed several acts of adultery with one S. E., which acts were committed in the plaintiff's residence in B. Street, and at a house of ill fame in S. Street, and at divers other times and places in said city. Held, the latter allegation was wholly insufficient, and that the complainant should have alleged the number of the house, or at least the block in S. Street, where the alleged adulteries were committed ; and if unable to do so, should have referred to the particular nature of the proof, by which such allegation was to be supported. 7 Eob. 302. 85. Florida. Under a statute, allowing a divorce on ac- count of " wilful, obstinate, and continued desertion for the term of one year," it is not sufficient to allege " wilful deser- tion for more than one year." 12 Fla. 449. 86. Missouri. In a petition for divorce on the ground of abandonment of the husband by the wife without cause, the petition should allege not only that the wife left voluntarily, 10 146 LAW OF DIVORCE. but that she has remained away against the will of the petitioner. 43 Mo. 547. 87. Michigan. No decree of divorce can be granted for adultery, which is not charged in the bill, with specifica- tions of time, place and circumstances. 20 Mich. 222. 88. Pennsylvania. In an action of divorce for adultery, the provisions of the statute, so far as the libel is concerned, are satisfied by setting forth the causes of complaint, with- out accompanying it by time, place or the circumstances of the violation of the marital obligation complained of. A special statement of the cause for which the divorce is claimed, is all that is required. If an appearance be entered, the respondent may demand a bill of particulars or notice of special matter intended to be proved. 14 P. F. Smith 470. 89. New York. An application for divorce for adultery and for a limited divorce for cruelty, should not be combined in an action, as they are two distinct and separate grounds. 12 How. Pract. 289. 90. Michigan. No decree for a divorce can be granted for adultery, which is not charged in the bill, with specifi- cations of time, place and circumstances. 20 Mich. 222. 91. New Jersey. A divorce can never be granted, upon general charges in the bill, of adultery with divers other persons, whose names are unknown. A bill for divorce should not be filed upon general suspicion, until the dis- covery of some specific act, or of the facts from which such act may be inferred. If the name of the person with whom the adultery is alleged to have been committed be unknown, the time, place and circumstances must be stated, so as to identify the offence, or the person of the adulterer must be described, and the fact that the name of such person was unknown at the time of filing the bill must be proved. If the name be known, it must be stated in the bill. 5 C. E. Greene 216. 92. Massachusetts. A refusal, to allow an amendment of the libel on a trial for divorce, is not subject to exceptions. 104 Mass. 198. 93. New York. If the bill does not show upon its face, that it is within the provisions of the statute, the plaintift cannot have a decree, even though the defendant does not demur. 3 Edw. Ch. 462. PRACTICE AND PLEADINGS. 147 94. Pennsylvania. A divorce will not be decreed upon answer, admitting the libel, or upon other confession, unless corroborated by circumstances. 2 Brewster 447. Vide the following sections under their respective divi- sions: — Cruelty, § 126. Practice, §§ 33, 34, 45, 68, 71, 78. Bkidenee, §§ 39, 61. Alimony, §§ 95, 310. Practice antr ^llcatrings. INDEX OF SECTIONS. Alabama, 45, 76-80, 120, 179. Arkansas, 91, 93. California, 96, 107, 108, 132, 186, 187. Delaware, 188, 184. Florida, 170, 175. Georgia, 115, 180, 198. Illinois, 83, 114, 143, 303. Indiana, 85, 93, 94, 97, 100, 101, 109, 113, 113, 137-139, 189, 140, 143, 166, 176, 181, 195. Iowa, 72, 116, 136, 144, 167, 177. Kentucky, 31, 132, 190, 301. Louisiana, 95. Maine, 36, 119, 182, 199, 300. Maryland, 74, 75, 188. Massachusetts, 32-34, 41, 43, 54-59, 66, 86, 103, 137, 173, 196, 197. Michigan, 133, 141, 168. Minnesota, 180, 138. Mississippi, 64, 110. Missouri, 65, 87, 171, 178. North Carolina, 38, 35, 43, 89, 106, 19d. New Hampshire, 131. New Jersey, 27, 78, 135, 136, 146, 151, 153, 163. New York, 1-36, 46-48, 61-63, 67- 69, 88, 104, 105, 134, 134, 135, 160 -163, 173, 174, 189, 194. Ohio, 99, 111, 131. Oregon, 133. Pennsylvania, 37-40, 49-53, 83, 84, 102, 118 147-150, 153-157, 164. Rhode Island, 98. Tennessee, 39, 30, 145, 165. Texas, 70, 71, 81, 90, 191, 193. Vermont, 60, 169. Wisconsin, 117, 158, 159. West Virginia, 185. 1. New York, on account of the take notice of any Ch. 501. 2. New York, not be under oath. John. Ch. 163. 3. New York, for the cruelty of court, on hearing On a bill by a wife for a divorce a mensa cruelty of her husband, the court will not counter charges in the answer. 4 John. To a charge of adultery, the answer need To a charge of cruel usage, contrd. 6 When the charges made by the husband the wife are denied by the answer, the upon bill and answer, cannot decree a 148 LAW OF DIVORCE. divorce for acts of cruelty on the part of the husband, set up in the answer. 1 Paige Ch. 276. 4. New York. Where the husband suffers the bill to be taken pro confesso, reference is made to a master to ascertain the truth of the charges in the bill, and also to report which of the parties shall have the care and custody of the chil- dren. 2 Paige Ch. 62. 5. New York. A wife may compromise a. suit against her husband for divorce, though the court will closely scru- tinize such compromise, and the plaintiff's solicitor cannot afterwards prosecute the suit, in order to obtain his costs. 1 Paige Ch. 505. 6. New York. If the person with whom adultery was committed is unknown, that fact should be stated in the pleadings and issue. 2 Paige Ch. 108. 7. New York. In a decree of divorce for adultery, a clause should be inserted, prohibiting the defendant from marrying during the life of the plaintiff". 2 Paige Ch. 62. 8. New York. In a suit for divorce, if the wife be an infant, she must prosecute or defend by her next friend or guardian. 2 Paige Ch. 108. 9. New York. After a decree of divorce a vinculo for the wife's adultery, upon petition by husband and wife to vacate such decree, and a statement made under oath by the hus- band, that he was then satisfied that his wife was not guilty, an order was granted, and the complainant's bill was dis- missed ; but, to protect the rights of others^ the proceedings were ordered to remain upon the files. 2 Paige 385. 10. New York. If the next friend of the wife, in her suit for separation, is insolvent, the husband may apply for a stay of proceedings, until security is given, or a responsible party is substituted. 3 Paige Ch. 267. 11. New York. The next friend of the wife must be worth at least $250 over and above all his debts. 3 Paige Oh. 387. 12. New York. In a suit for the wife's adultery, she may set up a condonation, even after the trial of a feigned issue, by which the fact of adultery was found, on showing suffi- cient excuse for the delay, if she apply immediately after the trial of the feigned issue. 4 Paige Ch. 432. PRACTICE AND PLEADINGS. 149 13. E'ew York. "Where a feigned issue is sent to a circuit judge to try the question of adultery simply, it is improper for him to receive evidence of a condonation. lb. 14. !New York. Personal service of a subpoena upon a defendant confined in the State prison is regular, the defend- ant not appearing to have been deprived by his situation of any legal and meritorious defence. 7 Paige Ch. 150. 15. IsTew York. Where the report of the master left the question of condonation in doubt, the report was referred back to him to re-examine witnesses and report proofs. It is his duty to examine all the witnesses produced, as to every fact charged in the bill, and to report the proofs with his opinion, as to the truth of every allegation in the bill. 7 Paige Ch. 589. 16. New York. Upon a reference to a master, to take proofs of the facts charged in a bill for divorce for adultery, taken as confessed, the master must report the proof in rela- tion to all the facts necessary to give the court jurisdiction, and whether there has been a condonation, as well as the proof of adultery. 9 Paige Ch. 589. IV. New York. Where a wife delayed filing her bill for separation, until seven years after ceasing to live with her husband, the delay was held to be excused, by showing that the only child of the wife was living with the husband during that time, and that the wife was unwilling to raise family difficulties, by filing a bill during the life of such child. 10 Paige Ch. 20. 18. New York. Where a wife has commenced a suit for divorce a mensa, the husband will not be entitled to a stay of proceedings therein, upon filing a bill for a divorce a vinculo, unless he shows a preponderance in his favor upon the merits of the respective suits. 1 Edw. Ch. 382. 19. New York. In a suit by the wife for a divorce on the ground of adultery, she was not allowed to introduce acts of adultery, committed by the husband subsequently to the filing of the bill, either by amendment or by a supplemental bill. 2 Edw. Oh. 114. 20. New York. For the form of a decree of separation, vide 4 John. Ch. 187 ; 2 Edw. Ch. 192. 21. New York. Where the master, in a suit for a divorce 150 LAW OF DIVORCE. a vinculo, reported that there was suflacient ground for a divorce, the court deeming the evidence insufficient, referred the report back to the master to enable the plaintiff to strengthen the testimony. 2 Edw. Ch. 207. ' 22. ISTew York. The original depositions taken before the master must be annexed to the report, and filed in the clerk's office. 2 Edw. Ch. 208. 23. jN'ew York. "Where the answer contained a charge of adultery, but without specifying name, time or circumstance, held, that the defendant could not upon the making up of an issue to try the question of adultery, add an affidavit as to names, &c., so as to have it included in the issue. 2 Edw. Ch. 448. 24. l^ew York. Upon a reference on a bill taken as con- fessed, the court will require proof, that the subpoena to ap- pear and answer was served within the jurisdiction of the court, and also proof of the identity of the party, on whom it was served. 2 Edw. Ch. 584. 25. ^ew York. Where the bill alleged but one charge of adultery, and that with a person named, the report of a mas- ter, that the defendant had committed adultery with a per- son whose name was unknown, was held not to warrant a decree of divorce. 3 Edw. Ch. 376. 26. New York. In a suit for a divorce for adultery, a decree will not be granted, where the master omits to take proofs of the marriage, and of facts and circumstances regu- lating condonation. 3 Edw. Ch. 377. 27. E^ew Jersey. In New Jersey, by statute it is required, that answers to bills for divorce should not be under oath ; therefore, though an answer to such bill be sworn to, it will be considered as if it had not been. Saxton 386. 28. North Carolina. A suit to annul a marriage for lu- nacy may be brbught in the name of the lunatic by his guardian, or in the name of the guardian. 3 Ired. Ch. 91. 29. Tennessee. Where an issue is directed to try the fact of adultery, it is no objection, that the issue was submitted to the jury, drawn up on a paper distinct from the petition and answer. 10 Yerg. 343. 30. Tennessee. Divorce cases are in the nature of chan- cery suits, and the practice accordingly, except so far as PRACTICE AND PLEADINGS. 151 changed by statute. An order to take a deposition in such case is not necessary. lb. 31. Kentucky. On a bill fpr divorce and alimony, although there is iiot ground for decreeing a divorce, yet the bill should not be dismissed, so far as the claim to alimony is concerned, but a jury should be empanelled to inquire into facts. 2 J. J. Marsh, 322. 32. Massachusetts. "Where a libel alleged adultery on one day, the court permitted an amendment, charging the fact on another day, and granted the respondent a continu- ance. 4 Mass. 506. 33. Massachusetts. If upon a libel for divorce for adul- tery, the respondent would show a like crime committed by the libellant, he must plead it, or evidence of the same will not be received. 6 Mass. 276. 34. Massachusetts. If, in a libel for divorce, the respond- ent appears and intends to defend, he must answer the libel in writing. 1 Mass. 341. 35. ifTorth Carolina. A divorce a mensa et thoro will riot be granted, where a divorce a vinculo is refused, unless the petitioner make a special demand for it. 2 Dev. & Bat. 64. 36. Maine. Under the Maine statute of 1838, there is no appeal upon a question of fact. The decision of the justice of the Supreme Court is conclusive and not open to revision. 6 Shep. 308. 37. Pennsylvania, l^otice should be given of the facts intended to be proved under the general allegations of the libel. 1 Dallas 409. 38. Pennsylvania. On issuing subpoenas in divorce, a rule may be made to take depositions before the return thereof. 1 Yeates 404. 39. Pennsylvania. Consent is requisite to withdraw a juror, where the issue in divorce is adultery. The libellant may suffer a nonsuit, with leave to move to have it set aside. 4 Yeates 244. 40. Pennsylvania. On an appeal from the decree of the Court of Common Pleas, on petition, for a divorce, an affi- davit that it is not intended for delay must be filed, although, such an affidavit is not a prerequisite of an appeal. 4 Eawle 241. 152 LAW OF DIVORCE. 41. Massachusetts. Pendency of a libel for divorce a mensa for desertion, cannot be well pleaded in abatement of a libel for a divorce a vinculo for desertion also. 1 Met. 279. 42. Massachusetts. The wife, if she prevail in a libel, will be allowed costs against her husband. lb. 43. North Carolina. In a proceeding for a divorce, the issues submitted and the verdict found should be as specific and certain, as the facts alleged in the petition. 5 Iredell 674. 45. Alabama. A libel, a;lleging cruelty, must state the facts which constitute such cruelty. But this can only be taken advantage of by assigning it as a cause of special de- murrer. 10 Ala. 527. 46. l^ew York. In ISew York, where a libel in divorce is taken as confessed, a divorce will not be granted, until after an inspection of the libel proofs, and the ajEdavit of service of the subpoena upon the defendant. 1 Barb. 27. 47. IS'ew York. "Where the complainant alleges facts, which would be a bar to the respondent's counter charge of adultery, the court is bound to frame the feigned issue ; both the fact of adultery of the complainant, and the circum- stances which avoid the efiiect of the adultery, if true, as condonation, &c. 1 Barb. 318. 48. l^ew York. On a reference to a master, it is his duty to decide, whether the circumstances alleged in avoidance of the complainant's adultery are sufilcient, and to frame the issue accordingly. lb. 49. Pennsylvania. The act of 1785 directs, that upon due proof of cruelty the court may grant a divorce a mensa et thoro. The words are not on "due proof and trial." The case, therefore, is left as it is in the civil law, to a trial by the court per testes, and there is strong reason for this dis- tinction between such divorces and those from the bonds of matrimony. 2 Yeates 207. 50. Pennsylvania. Testimony, taken under a commission without the State, cannot be read, if the attorney of one party was present when it was taken, though he took no part in the examination, and was not employed to attend 6 Barr 449. 51. Pennsylvania. An appeal from the decree of a Court PRACTICE AND PLEADINGS. 153 of Common Pleas will be dismissed, unless a recognizance have been entered, with at least one good surety. 2 Whar- ton 94. 52. Pennsylvania. After a decree for divorce, depositions taken on the part of the respondent in the court below can- not be read on hearing of the appeal. 9 Barr 166. 53. Pennsylvania. The Court of Common Pleas have the power to vacate a decree of divorce entered at a previous term, where it was obtained by fraud on the court, although a marriage had been contracted subsequently on the facts of such . decree with a party thereto, and issue born. The order to vacate would be only erroneous and unimpeachable, after the expiration of the period for reversing it by appeal. 2 Jones 328. 54. Massachusetts. If the husband be absent on a voyage with an expectation of returning, it is not such an absence from the State as will authorize proceedings upon the libel without personal notice to him. 7 Mass. 212. 55. Massachusetts. Newspaper notice can be resorted t6 only where it appears by the libel, that the party to be noti- fied is.out of the State. 3 Mass. 159-391; 5 Mass. 197; 6 Mass. 36; 9 Mass. 422. 56. Massachusetts. A service by reading is not sufficient. 9 Mass. 422. 57. Massachusetts. 'Nov by a constable. 15 Mass. 389. 58. Massachusetts. lS6v by an attested copy left at the respondent's last and usual place of abode, if it appear that the respondent was not in the house at the time, and had not been within the county since the service. 7 Mass. 502. 59. Massachusetts. Nor where it appears that the libel- lant is resident in another State. 8 Mass. 383. 60. Vermont. The delivery to the respondent of a copy of the libel and of an order of notice made by a judge of the Supreme Court, by an indifierent person, not specially de- puted to serve the same, constitutes no notice of the petition, which the petitioner is bound to regard. 16 Vt. 511. 61. New York, No decree for a separation will be granted in a suit by a wife against her husband, where the acts of cruelty alleged, occurred so long since that the statute of limitations has attached. 2 Barb. Ch. R. 309. 62. New York. In an application by a defendant to set 154 LAW OF DIVORCE. up a new defence after answer filed, the court must be satis- fied, that the facts to be added are highly probable and mate- rial, and have come to the party's knowledge since the origi- nal answer was sworn to. The proper mode is for the defend- ant to obtain an order, that the cause stand over until he can put the facts in issue by a cross bill, which must be brought to a hearing with the original suit. 2 Barb. Sup. Ct. 473. 63. New York. Under the ]!^ew York code for 1848, a wife may sue for a partial divorce without the intervention of a next friend. 2 Sandf. Sup. Ct. 715. 64. Mississippi. A valid agreement of separation between husband and wife can be made only through the medium of a trustee. 14 S. & M. 59. 65. Missouri. In Missouri, where both parties areguilty of the offences mentioned in the statute on divorce, the bill should be dismissed, as innocent parties alone are entitled to a decree. 12 Mis. 53, 157. 66. Massachusetts. Scire facias is a proper process to en- force payment of arrears of alimony. ■ 4 Cush. 518. 67. New York. In an action of divorce for adultery, an order of reference on the default of the defendant to answer, will not be made, where the complaint contains no specifica- tion of the person with whom, or the place where the oft'ence was committed. 4 Sandf, Sup. Ct. 692. 68. New York. Under the New York code, as amended in 1851, in an action for an absolute divorce against a wife, the court cannot proceed after service of the summons, until a next friend has been appointed to defend the suit in her be- half. If she neglect to procure the appointment, it will be made by the court on application of the plaintiff. 4 Sandf. 721. 69. New York. The duty of the jury is only to ascertain the truth of the allegations. The court are to ascertain whether they are sufiicient to authorize a divorce. Ih. 70. Texas. A demurrer to a plea of justification, aspersing the general character of the plaintiff, without stating par- ticular acts of bad conduct, does not admit the truth of the charge. 3 Texas 168. 71. Texas. A wife may be sued in her own name for a divorce without the intervention of a proehein ami. lb. PRACTICE AND PLEADINGS. . 155 72. Iowa. A petition for alimony is a civil proceeding, and a capias cannot issue thereon in Iowa. 2 Greene 598. 73. New Jersey. An application was made for a ne exeat, in a divorce case, and the affidavit filed, before the petition for a divorce was filed. Held irregular, and the ne exeat denied. 2 Halst Ch. E. 28. 74. Maryland. In Maryland, where a writ of ne exeat issued upon the unsupported oath of the complainant in a bill for a divorce, before a decree had established her right to alimony, and the answer with strong averments disputed such right, and denied any intention to remove, the chan- «ellor granted a motion to discharge the writ upon the case presented by bill and answer. 2 Md. Ch. Decis. 326. 75. Maryland. Upon a bill for a divorce a mensa, a writ of ne exeat may be granted upon the affidavit of the wife alone, that her husband, the defendant, intends to leave the State and depart beyond the jurisdiction of the court. Ih. 76. Alabama. A decree of divorce against a non-resident defendant, upon whom service has been perfected by publi- cation in the manner prescribed by the statute, is equally as obligatory upon the defendant, as if he had been personally served, and had answered. 19 Ala. 499. 77. Alabama. A decree will not be pronounced fraudu- lent in a subsequent proceeding, in which it is collaterally attacked, on account of a misnomer of the defendant in the insertion of a letter, as the initial of a middle name, the description being otherwise sufficiently accurate, and there being no allegation in the pleadings of such subsequent suit, that she was not known or called by such name ; nor will the decree be considered void for fraud when collaterally im- peached, because the bill omitted to state a fact, which would have been a bar to the relief sought. 19 Ala, 499. 78. Alabama. A bill for a divorce is not demurrable, because it alleges two distinct grounds of divorce. 20 Ala. 168. 79. Alabama. If a defendant answer a bill of divorce for adultery, which does not allege, the name of the particeps criminis, or the fact that it is unknown to the complainant, without raising any objection to the omission, he will be held to have waived it. 23 Ala. 777. 156 LAW OP DIVOECE. 80. Alabama. The statute, which allows a bill for divorce to be filed in the court of chancery of the county in which the complainant resides, is remedial and cumulative, and does not take away the right to file it in the county where the defendant resides. 23 Ala. 785. 81. Texas. In an action for divorce, the rules and doc- trines of the ecclesiastical law, so far as they are applicable, must be enforced. 7 Texas 538. 82. Illinois. The court has no authority to decree a divorce on a bill being taken for confessed, without proof to sustain its allegations. 14 111. 147. 83. Pennsylvania. "When the respondent's answer justifies desertion, by alleging the barbarous treatment of the libel- lant, the latter is entitled to demand specifications of time^ place and circumstances before joining issue, but may waive the right by putting in a general replication, denying the respondent's statements and demanding a jury. 10 Harris 275. 84. Pennsylvania. "Where the court below expressed no opinion on the merits, and were not asked to do so, the omission is' not assignable for error, for it has often been ruled that want of direction, not asked for, is not error. lb. 85. Indiana. By the revised statutes of 1843, the answer of the husband need not be filed until the first day of the term to which the process is returnable, nor can he take de- positions until after his answer is filed ; and upon a proper affidavit he was entitled to have the cause continued to take depositions. 5 Ind. 190. 86. Massachusetts. A decree of divorce a vinculo, although obtained by fraud and false testimony, cannot be set aside on an original libel filed at a subsequent term. 2 Gray 361. 87. Missouri. A decree of divorce rendered against a party who has not been summoned, and has not appeared, may be set aside, provided the bill of review is filed within one year after the service of notice of the decree, or within five years after the date thereof, where notice is not given. 5 Bennett 166. 88. New York. A libel for divorce should be answered, before the filing of a cross bill. 1 Hemp. 88. 89. North Carolina. In a petition for a divorce and ali- PRACTICE AND PLEADINGS. 157 mouy, the material facts charged in the petition must be submitted to a jury, on whose verdict, and not otherwise, the court shall make their decree. 2 Jones Eq. 21. 90. Texas. In an application for a divorce, a new trial will not be granted on the ground of newly discovered evi- dence, where no reason for a divorce, to which such evidence is applicable, is mentioned in the petition. 14 Texas 356. 91. Arkansas. Under the provisions of the statute, a service of a subpoena to answer a bill of divorce, by simply reading to the defendant, is not sufficient. 16 Ark. 627. 92. Indiana. In a libel for divorce, publication of notice is sufficient service on the absent defendant to give jurisdic- tion without issuing summons. 7 Ind. 113. 93. Arkansas. A decree pro confesso in divorce against the defendant is not sufficient, without evidence to sustain the allegations of the complainant's bill. 16 Ark. 527. 94. Indiana. "Where a decree was obtained by the plain- tiff without appearance on the part of the defendant ; held, that the decree could not be reversed on account'of the ab- sence of the prosecuting attorney. 7 Ind. 113. 95. Louisiana. In cross actions brought by husband and wife for a separation from bed and board, it was held, that where the faults of the parties are nearly balanced and of a similar nature, the complaint of neither party can be heard in a court of justice. 12 La. An. 882. 96. California. Under the statute of 1850, as to husband and wife, a petition for the partition of common property is well joined with an application for a divorce. In such petition, the wife has a right to make a party to the suit any one claiming an interest in the property, and it is proper for her to disclose in' what the property consists, its nature and value. 3 Cal. 312. 97. Indiana. In actions for divorce, the rule of procedure contemplates a trial of the cause by the court, and though the court may submit questions raised by the pleadings to a jury, the verdict may not in all respects be conclusive. Oa a final hearing of the cause, the court may look into the whole case, and disregard so much of the finding of the jury as is plainly without the issues. 9 Ind. 105. 98. Rhode Island. Rules and practice in Rhode Island 168 LAW OF DIVORCE. as to notice to an absent or non-resident party, — vide 4 E. I. 87. 99. Ohio. A decree of the Court of Common Pleas in cases of divorce and alimony is not subject to judicial revision. 6 Ohio 64. 100. Indiana. The provision, that parties against vrhom a decree in chancery has been made, may have such decree opened and let into a hearing by publication in. a newspaper within five years, is not applicable to suits for divorce. 3 Ind. 30. 101. Indiana. In a petition for divorce by the husband, and answer and cross petition by the wife, the dismissal of the husband's petition carries the whole cause out of court. 9 Ind. 505. 102. Pennsylvania. If the respondent go to trial without demanding a specification of the particular acts relied on to sustain the libel, he will be presumed to have waived such notice. If he had been really surprised at the trial, an affi- davit to that efiect would have obtained him a continuance. 2 Casey 161. 103. Massachusetts. A decree of divorce obtained by fraud, and without the respondent's knowledge, may be set aside on the application of. the respondent during the same term. 7 Gray 545. 104. New York. An answer, setting up the adultery of the plaintiff as a defence, need not allege the residence of the parties in the State, when the offence was committed, or that the defendant at that time, and at the commencement of the action, was an actual inhabitant of the State, 31 Barb. 330. 105. l!few York. Where a reference is ordered to ascer- tain the proper amount of alimony to be paid, upon the re- versal of so much of a decree for a divorce as fixed the amount of permanent -alimony ; neither party is entitled to a commission, as a matter of strict right, and such commis- sion should not be issued with a stay of proceedings, except in a case free from suspicion, that the motive in applying for it is to delay or annoy the plaintiff, nor unless it appears that great injustice would probably be done by refusing it. 3 Bosw. 661. PEACTICE AND PLEADINGS. 159 106. North Carolina. The Revised Code, c. 39, requires the acts which are alleged to amount to indignity to be set out particularly, so that an issue may be taken upon each severally, and will tolerate no generality in making the charges. 4 Jones Eq. 82. 107. California. The statute does not alter any of the ordinary rules of pleading, therefore failure to object to de- fects in pleading is a conclusive waiver of them. 10 Cal. 249, 108. California. The whole issue cannot be referred for decision even by consent ; the reference under the statute is simply to take testimony, on which the court alone is to de- cide. 10 Cal. 527. 109. Indiana. The court cannot, in a divorce case, appoint an attorney for an adult, compos mentis, party to a suit,, against the consent of such party, and tax the party with a compensation for his service. 13 Ind. 492. 110. Mississippi. Decrees of divorce, like all chancery decrees, are appealable. 36 Miss. 517. 111. Ohio. A decree of divorce a vinculo, though obtained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent time, 9 Ohio 534. 112. Indiana. A judgment for divorce and alimony cannot be set aside after the expiration of a year. 12 Ind. 663. 113. Indiana. It can only be set aside within that time on a motion made for a new trial. 13 Ind. 294. 114. Illinois. It is error to render a decree of divorce by default, when there has not been any service of process. 21 111. 540. 115. Georgia. Attachment, not Ji. fa., is the proper mode of enforcing alimony, 29 Geo. 109. 116. Iowa, After a trial of the question on the merits, • it is too late to object on appeal to the form of an applica- tion for a modification of the decree in regard to alimony and the custody of children. The* time and manner of making such applications are within the discretion of the court. 5 Clarke 541. 117. "Wisconsin. A divorce was granted for other cause than adultery, which cause was alleged in the libel. , Held, that it was still competent to allow testimony of such adultery, as bearing upon the questions of alimony and the 160 LAW OF DIVOKCE. custody of children. This may be done at any time after the decree has been enrolled. 7 "Wis. 296. 118. Pennsylvania. The Court of Common Pleas may vacate a decree of divorce obtained within the year, where there has been imposition practised on the court by the libellant, this too, even though the libellant has died within the year, and devised his property to others. 2 "Wright 241. 119. Maine. The failure of the respondent to comply with an order of t'he court below, passed after the filing of the exceptions, to pay money into court for the use of the libellant, is no ground for the dismissal of his exceptions by the Supreme Court. The proper remedy is, it seems, by pro- ceedings for contempt in the court below. 46 Maine 377. 120. Alabama. The refusal of the chancellor to submit the issue in a divorce case to a jury, is not appealable; he can decide if he see fit. 35 Ala. 226. 121. Ohio. Divorce suits are not appealable, except by virtue of the statute, and the statute, § 17, does not authorize appeals from final hearings on the merits. 10 Ohio 316. 122. Kentucky. A court rendering a judgment of divorce may grant a rehearing and new trial upon sufficient grounds, and within the time and in the mode provided in other cases. 3 Met. 298. 123. Michigan. A decree for a divorce a vinculo is final, and an appeal lies therefrom, notwithstanding a reference to a commissioner for the determination of alimony pendente lite. 9 Mich, 164. 124. ~Eew York. The trial of issues of fact in a divorce case is reviewed, and a new trial granted or refused, not upon the principles applicable to a strict bill of exceptions, but on those which govern a court of equity. Unless the errors are such as to render the trial an unfair one, or sub- stantially affect the verdict, a new trial will be denied. 11 Smith 501. 125. New Jersey. "When a cause in a divorce suit is re- ferred to a master, it is irregular to examine a witness before another master. 2 Beasley 263. 126. New Jersey. A defendant in divorce is not entitled to a verified answer as in other cases in equity. But a veri- PKACTICE AND PLEADINaS. 161 fied answer may be read as an affidavit on a motion for ali- mony, pendente lite. 3 Stoekt. 70. 127. Indiana. Under the general chancery practice, a default in a divorce suit does not supersede the necessity of proof, or lighten the burden on the plaintiff of establishing his case. 17 Ind. 309. 128. Indiana. All applications for divorce, not otherwise defended, must be opposed by the prosecuting attorney, for the sake of the public interests, and to secure the rights of third persons. lb. 129. Indiana. In a husband's suit for divorce for cruel treatment, the wife, by answer, admitted the allegations, and they filed a joint agreement relating to the disposition of the children and property. "With further evidence, a refusal to grant the divorce was held to have been proper. lb. 130. Minnesota. A decree may be vacated, upon clear proof of fraud in obtaining it. 6 Minn. 458. 131. ITew Hampshire. A libel for divorce cannot be prosecuted by the libellant's father, or any third person, where the libellant dies before entry of the libel, in order to exclude the respondent from a share of her husband's estate, or from the custody of their child. 44 IJT. Hamp. 122. 132. California. An objection in proceedings for a divorce, that the complaint is insufficient, in not properly stating the facts showing the property to be common, must be raised by demurrer. 22 Cal. 633-635. 133. Oregon. In divorce cases, service made ten days be- fore the commencement of a term is sufficient, though made in a different county from that where the action is com- menced, notwithstanding the statute requires thirty days for actions at law under such circumstances. 1 Oregon 307. 134. New York. Any judgment of divorce obtained by collusion or fraud will be ordered to be set aside, not from any regard to the parties concerned, but from motives of public policy. 41 Barb. 139. 135. New York. A judgment of divorce will not be re- versed on appeal, and a new trial ordered, merely because the record contains some technical exceptions which were well taken, if the court be satisfied upon the whole case that justice has been done. 8 Bosw. 640. 11 162 LAW OF DIVOEOB. 136. Iowa. The power of the court to modify a decree of divorce under the revision of 1857 is not limited to one year after the entry thereof. 7 "With. 423. 137. Massachusetts. The court has authority to entertain a petition filed by a third party, representing that a libellant for divorce is insane ; and, if such insanity be established, the court will appoint a guardian ad litem, to conduct the cause for the libellant. 8 Allen 311. 138. Minnesota. The provision of the rule of the District Court, that a defendant in a divorce suit may appear and answer the complaint within ninety days after service of the summons, is in conflict with the statute, which requires the defendant to answer within thirty days, and the time pre- scribed by the latter must govern. 9 Minn. 72. 139. Indiana. The statute contemplates a trial by the court in divorce cases, and though the court may of its own motion, or by consent, or upon the motion of either party, submit the issues to a jury, still the verdict is not conclusive, and on the final hearing the court may look into the whole case, and disregard so much of the finding as is without the issue, 25 Ind. 156. 140. Indiana. Upon the trial of a suit for divorce, where the defendant had filed a cross petition, the court found that a divorce ought to be granted, " not upon the application of either party, but upon the whole case." Held, that under the statute, a divorce can only be granted upon the applica- tion of the injured party, and a finding in favor of one party and against the other, is necessary to authorize a divorce. 25 Ind. 517. 141. Michigan, "Where, in a suit for divorce, an answer was filed and afterwards withdrawn, no decree will be granted, without satisfactory evidence that the withdrawal was voluntary and not collusive. 13 Mich. 452. 142. Illinois. It is not necessary in a proceeding for a divorce, when the bill is taken for confessed, that the oral proof or evidence on which the court acted, should be pre- served in the record ; it is sufficient that the record shows proof was heard, sustaining the allegations of the bill, 33 111. 286. 143. Indiana. Sections 99 and 356 of the code, providino- PRACTICE AND PLEADINGS. 163 for the reopening of judgments, do not apply to divorce cases. 24 Ind. 468. 144. Iowa. Section 3160, Eev. 1860, providing for setting aside defaults granted against defendants, served with notice by publication only, has no application to divorce suits, 20 Iowa 225. 145. Tennessee. A bill for divorce and alimony cannot be revived against the executors of a deceased husband. 2 Cold. 634. 146. New Jersey. It is in accordance with the soundest principles of public policy and morality, that a wife, while living in a state of separation from her husband, in silent submission to her wrongs, should not be debarred by any lapse of time from the protection to which she might other- wise be entitled, whenever the husband shall disturb her peace by an attempted exercise of his marital rights. 2 McCarter 138. 147. Pennsylvania. A party to a libel for divorce is en- titled to an issue for the trial of disputed facts, if he exer- cise his right reasonably and with vigilance ; but where the respondent's answer concluded with a verification and not to the country, and no issue is asked until after the report of the commissioners appointed with the assent of both parties, and when the court was about to make a final decree, the application is too late, and the refusal to award the issue is not error. 10 "Wright 323. 148. Pennsylvania. In an action to test the legitimacy of children, it is not error in the court to submit to the jury all the evidence of access on the part of the husband, with the record of divorce, and to decline to charge them that the divorce was a judicial determination as to separation for two years, which, with evidence of their separate residence, rebutted the legal presumption of access. The record of divorce concluded only the desertion of the wife, not the non- access of the husband, and did not estop the children from claiming legitimacy. 2 Wright" 439. 149. Pennsylvania. In an action of divorce, brought by a woman who had obtained a divorce seven years before for her husband's adultery, the court held, that the wife was estopped by her own actions, from showing any irregularity 164 LAW OF DIVORCE. in the proi3eedings in divorce. Such irregularity was void- able and not void, where the court had jurisdiction of the matter and of the parties, and should have been objected to in time, and by a party who had a right to object. The decree entered, could only be reversed for error by a direct proceeding for that purpose and not collaterally. The court rejected evidence on the part of the wife to prove fraud in obtaining the decree, to which fraud she was necessarily a party. 4 Wright 151. 150. Pennsylvania. The legal assertion of a right acquired by a decree of a court having jurisdiction, will estop the party from all proceedings thereafter to invalidate the decree, under which the asserted right has been claimed. In this case, subsequent to- a decree of divorce for the wife's desertion, she brought an action of replevin against . her former hus- band. Held, that this was an estoppel in pais of all appeals to vacate the decree of divorce. 8 "Wright 274. 151. New Jersey. An answer to a libel for desertion, alleging as an excuse, the cruel treatment practised, by the husband upon the wife, without specifying particular acts, or any facts from which cruelty could be inferred, is too vague to entitle the respondent to introduce evidence of the facts relied on to support the charge. 1 Green 275. 152. New Jersey. An averment, that the statements con- tained in a bill of divorce are made upon information and belief, constitutes no ground for demurrer. 1 Green 391. 153. Pennsylvania. "When an issue to try facts in divorce is asked, the court may direct the form of the issues, and require the other party to join therein, full opportunity being given for the production of proof of facts alleged. 5 P. F. Smith 231. 154. Pennsylvania. A jury trial may be had on the issue framed by the libel and answer, but in such case notice of special matter, intended to be given in evidence, may be re- quired by either party. It is preferable, however, that the issues should be special at first. That the issue is to be something other than that resulting from the libel and an- swer is implied by the act itself, which reads " then if either party shall desire any matter of fact, that is affirmed by one PRACTICE AND PLEADINGS. 165 and denied by the other, to be tried by a jury, an issue shall be framed so that the same shall be tried accordingly." lb. 155. Pennsylvania. A rule of court required that in divorce proceedings an issue should be demanded in the answer. A respondent neglected to do so, and shortly after- wards, and before much testimony had been taken, asked to amend her answer by demanding an issue. This should have been allowed. 9 P. F. Smith 430. 156. Pennsylvania. If the causes set forth are merely a scheme to make out a technical case, the court should refuse the application, which should not be made out of levity or collusion, or for the mere purpose of being freed and sepa- rated, but in sincerity and truth for the causes mentioned in the petition. There is no reason why fraud and chicanery should not defeat an application for a divorce, as it vitiates everything it touches, and certainly would be a check in every other case. 13 P. F. Smith 450. 157. Pennsylvania. The want of notice of special matter, not required by rule of court, or by any special order, is not ground for refusing the evidence when offered. lb. 158. Wisconsin. There is nothing in our statute, to pre- vent a court from vacating a judgment of divorce from the bond of matrimony at the same term, for cause shown. 20 Wis. 331. 159. Wisconsin. A judgment for divorce rendered with- out jurisdiction of the person of the defendant, may be set aside on motion at a subsequent term. 20 Wis. 499. 160. IsTew York. A motion to amend an answer, so as to allege facts discovered after the issues were joined, which show adultery by the plaintiff, will be granted, if the de- fendant appears to have a reasonable prospect of establishing such allegation. 3 Rob. 669. 161. ISew York. A general allegation in the answer, that the plaintiff was guilty of adultery at some time be- fore the commencement of the action, without reference to time or locality, does not state such an issue as can be tried under 2 Rev: Sts. 145. 4 Rob. 621. 162. New York. In an action for divorce a vinculo, issues made by the pleadings, and not requiring to be settled, will not be expunged on motion. lb. 166 LAW OF DIVORCE. 163. New Jersey. The recriminatory plea of adultery to a petition for divorce on that ground, must be clearly pet out in the answer. 3 Green 33. 164. Pennsylvania. In a libel for divorce, where an al- lowance has been decreed, and the court has ordered the case for trial, although the allowance has not been paid, such discretionary action of the court cannot be noticed on error. The remedy is by attachment. 5 P. F. Smith 231. 165. Tennessee. The sections of the code, providing that a decree shall become absolute, if the defendant does not come forward and make a defence within six months after service of a copy of the decree, do not apply to causes for divorce. 3 Cold. 544. 166. Indiana. The husband's answer contained a general denial of the acts of cruelty charged, and by' way. of cross petition alleged causes of divorce against the plaintiff. The plaintiff at the trial, by leave of the court, filed an additional answer to the cross complaint, charging the defendant with adultery committed after the commencement of the suit. Held, that the answer of adultery was a good defence to the cross petition, as this being admissible as evidence under the general denial, the court did not err in allowing the addi- tional answer to be filed. 27 Ind. 186. 167. Iowa. The verdict of the jury in a divorce case, is, on appeal to the Supreme Court, entitled to the same effect as in a purely law action. 23 Iowa 433. 168. Michigan. A decree cannot be entered by consent in a divorce suit, but the court must satisfy itself by the testimony, that legal cause for divorce exists. 16 Mich. 79. 169. Vermont. It seems, that a petition to annul a mar- riage cannot be maintained after the death of one of the parties, where the cause alleged renders the marriage void ab initio without such proceeding. 41 Vermont 47. 170. Florida.^ Relief cannot be granted for matters not charged, although they may be apparent from other parts of the pleading and evidence. Such defects are not cured by a decree pro confesso. 12 Fla. 449. 171. Missouri. In reply to an application for divorce, the defendant may allege, by way of cross petition, the commis- PRACTICE AND PLEADINGS. 167 sion by the plaintiff of any offence that, by the statute, is made a cause for divorce. 43 Mo. 547. 172. Massachusetts. A judgment upon a hearing on the merits, dismissing a libel of a wife for a divorce from bed and board on the* ground of cruelty, is a bar to a subsequent libel, filed after five years for a total divorce for' the same cause, although there is evidence of other acts of cruelty, previous to the former libel, than those testified to at the first trial. 98 Mass. 155. 173. New York. Where, in an action for divorce on the ground of adultery, the issues are tried before a referee, and the action dismissed upon the plaintiff's failure to prove her marriage with the defendant, a new trial will not be granted under 2 Rev. Sts. 145, § 40. 6 Rob. 514. 174. New-York. It seems that a party, whose guilt of adultery has been established by the verdict of a jury, can alone avail himself of the provisions of that section. lb. 175. Florida. After a divorce and decree for alimony, an appeal was taken from the latter decree only. Held, that the Supreme Court, if satisfied that there was no proof of extreme cruelty, might reverse the decree of divorce. 12 .Fla. 434. 176. Indiana. To justify this court in reversing the judgment of the court below refusing a divorce, under the clause giving "discretionary power," &c., a very clear case must be shown of an iriiproper exercise of that power. 29 Ind. 174. 177. Iowa. Several years after a divorce had been ob- tained, the libellant applied to have the decree altered, so as to allow her alimony. Held, that it was error to modify the decree unless the circumstances of the parties had changed since it was rendered. 25 lawa 266. 178. Missouri. In reply to an application for divorce, the defendant may allege, either by, way of recrimination or cross petition, the commission by the plaintiff of any offence that, by the statute, is a cause for divorce. If both parties have a right to a divorce, neither party has. 2 Post 347. 179. Alabama. A suit for divorce on any statutory ground may be defeated, by proof of the existence of another 168 LAW OF DIVORCE. Statutory ground in fuvor of the defendant, and such recip- rocal causes being proved under separate bills, the court will not grant a divorce to either party. 39 Ala. 348. 180. Georgia. A suit for a total divorce brought in the name of a lunatic wife by prochein ami against her husband cannot be maintained. The right to institute such suit is strictly personal. 36 Geo. 45. 181. Indiana. Where the decree is obtained by default, and the record shows no notice to the defendant, pendente lite, the objection may be made on appeal without applying to the court below for relief. 27 Ind. 253. 182! Maine. A libellee named in a libel, praying to have the marriage between the parties annulled on account of an alleged prior marriage, is not entitled to a trial by jury. 4 Virgin 561. 183. Delaware. The court will entertain a suit for divorce though the defendant appears, and does not deny the petition. 1 Har. 137. 184. Delaware. A certiorari lies from the Court, of Ap- peals to the Superior Court in divorce cases to correct errors, &c. 3 Har. 136, 185. "West Virginia. The Court of Appeals has jurisdic- tion to review by appeal a decree of the court below in mat- ters of divorce. The statute puts such causes on the same footing with other chancery causes. 2 W. Va. 435. 186. California. If the referee in a divorce action finds the facts, the court should disregard the finding, and deter- mine the cause upon the evidence. 32 Cal. 457. 187. California. A judgment awarding a divorce, with- out stating whether from the bonds of matrimony, or from bed and board, is a divorce from the bonds of matrimony. 33 Cal. 353. 188. Maryland. A voluntary deed of separation between husband and wife, is not a bar to a bond fide application by the former for a divorce from the latter, on the ground of her impotence. 33 Md. 401. 189. New York. A judgment of divorce will be reversed on appeal, if the referee's report, on which it was entered, does not find upon issues made by the pleadings as to guilt PRACTICE AND PLEADINGS. 169 oh the part of the successful party. 10 Abbott's Practice, New Series, 291. 190. Kentucky. Although no legal cause of divorce exists, the right to a decree of separation and alimony, which the law afforded to the wife before the adoption of the Revised Statutes, is not impaired, but recognized. 191. Texas. In suits for divorce, notwithstanding the verdict for the plaintiff, the court may render a verdict in favor of the defendant. In such a case, if the plaintiff be- lieve that his or her case can be strengthened by additional testimony, the proper remedy is to apply for a new trial after the announcement by the judge of his dissatisfaction with the verdict. 31 Te;xas 175. 192. Texas. In a divorce case, the jury found the facts which constituted a good cause for a divorce, but the court refused to enter a decree. The Supreme Court reversed the judgment, and upon the verdict and evidence rendered a decree of divorce, and also for the partition of the property between the parties, lb. . 193. !N'orth Carolina. Where the wife is defendant, the costs are to be paid in advance (unless indulgence be shown by the officers of the court) by the husband as his own are, and this will be enforced by order of the court. 64 IJT. C. 255. 194. BTew York. Courts will not regard a service or notice of the pendency of an action, by publication in an Indiana newspaper, as giving a court of that State jurisdic- tion of a defendant, who was at the time a resident of this State. 55 Barb. 269. 195. Indiana. Interrogatories to be answered under oath by the defendant, cannot properly be filed with the answer to a cross petition in an action for divorce ; and, if filed and answered, cannot properly be introduced in evidence. 31 Ind. 240. 196. Massachusetts. At the trial of a libel for divorce, the special findings of a jury on questions of fact are not conclusive of facts not essential to, although consistent with their general verdict and the decree entered thereon. 97 Mass. 200. 170 LAW OF DIVORCE. 197. Massachusetts. If a decree, dismissing a libel for divorce for the desertion of the libellee, does not set forth that the dismissal is without prejudice, it is a bar to a sub- sequent libel of the same libellant for a divorce a vinculo for a desertion of the same libellee, which began not less than five years before the filing of the former libel. 99 Mass. 39. 198. Georgia. "WTien there was a motion for alimony, pending a bill for divorce, and the defendant in the motion moved to continue, showing that a material witness was absent without his consent, who lived in the county, and had been subpoenaed, it was error in the court to refuse the continuance on the ground that ;the granting of alimony was wholly in the discretion of the court, and that there was no necessity for the presence of all the witnesses. 39 Geo. 53. 199. Maine. The parties to a libel for divorce a vinculo^ tried by the presiding justice at Ifisi Prius, are entitled to the right of alleging exceptions to rulings admitting testi- mony. 7 Virgin 157. 200. Maine. The fact that the husband has already ob- tained a divorce a vinculo is no bar to the granting of a like divorce to the wife ; when, in the exercise of a sound discre- tion, it is deemed reasonable and proper. If he wished to take advantage of this fact, his plea should have been of puis darrein continuance, and such a plea must not be pleaded in bar generally, but to the further maintenance of the suit. 7 Virgin 508. 201. Kentucky. The Court of Appeals has no power to review or reverse a jiidgment for divorce. 7 Bush. 520. 202. Illinois. A hearing can only be had upon the grounds which exist when the suit is commenced, and sub- sequent grounds cannot be incorporated into the case after the commencement of proceedings. 53 111. 394. EVIDENOB. 171 IBbitrence, INDEX or SECTIONS. « Alabama, 33, 55, 61, 67, 115. Arkansas, 65. California, 79, 81, 83, 93, 93, 97. Georgia, 63-64, 73, 76, 77, 109-111. Illinois, 58, 68. Indiana, 8, 45, 46, 66, 99. Iowa, 84, 94. Kentucky, 33, 75, 106. Louisiana, 71. Maine, 13, 13, 30, 31, 36, 85. Massachusetts, 14, 15, 18, 32-34, 87- 89. Michigan, 7, 113. Minnesota, 95. Mississippi, 73, 78. Missouri, 16, 51, 53, 74, 83, 103, 104. New Hampshire, 17, 19, 37, 47, 96, 98, 113, 117, 118. New Jersey, 6, 9, 10, 100-103, 108, 114, 116. New York, 1-5, 31, 36-43, 48, 49, 90, 91, 107. Ohio, 35, 38-30. Pennsylvania, 34, 35, 50, 69, 70, 86, 105, 105J. South Carolina, 11, 44. Texas, 53, 56, 57, 59, 60, 80. Vermont, 54. 1. New York. The court will disregard the consent of the defendant as ground for a decree of divorce. 1 John, Ch.488; 4 John. Ch. 501. 2. 'New York. Upon a bill for separation under 2 R. S. 147, § 49, both an abandonment and a refusal or neglect to support the wife must be proven. The intention to abandon is the criterion, and it may be gathered not only from pro- tracted absence, but from other facts. 1 Hoffman Ch. 47. 3. New York. The charges in a bill for divorce must be fully proved, and the consent of the parties, or default in the , suit, will not authorize a decree of divorce. 1 P,aige Ch. 276. 4. New York. In a suit for divorce for adultery, evidence of cruelty immediately connected with the adultery charged, may be admitted to show an alienation of the aftections, and as aftbrding an inference of the adultery, but not as a foundation for a decree of separation. 1 Edw. Ch. 14. 6. New York. In a suit for divorce for adultery, positive evidence of the fact of adultery is not requisite. lb. 6. New Jersey. The admissions of a party on a charge of adultery, in a bill for a divorce, are not, as a general rule, to be received with much faith, but must be connected with other evidence. 1 Green Ch. 139. 172 LAW OP DIVORCB. 7. Michigan. A divorce will not be granted upon the admissions of a party unsupported by evidence, but the amount of evidence required varies with the danger of col- lusion. Walker Ch. 48. 8. Indiana. The charge of adultery may be proved by circumstantial evidence, but it must be shown by such facts as lead to it by fair inference, as a necessary conclusion. The admission of adultery by the defendant in -his answer, will not authorize a decree without proof of the fact. This applies to either kind of divorce. 4 Porter 467. 9. IsTew Jersey. It is not necessary to prove adultery by direct evidence, but the circumstances must be such, as to lead the guarded discretion of a reasonable and just man to the conclusion that the crime has been committed. 3 Green Ch. 444. 10. ]!few Jersey. The confessions of parties are to be taken, with extreme caution, and are never sufficient without strong corroborative circumstances. Saxton 474. 11. South Carolina. Upon a bill by the wife for relief on account of a prior marriage by the husband, proof that the husband had cohabited with a woman, and that he had spoken of her in his letters as his wife, was held to be in- sufficient evidence of the marriage. 1 Desau. 196. 12. Maine. In a libel for a divorce a mensa et thoro, the court will require evidence of the marriage, even though the respondent does not appear to answer the libel. 3 Greenl. 13-5. 13. Maine. In a libel by the wife for a partial divorce, a record of the husband's conviction for an assault and bat- tery, for which he had pleaded guilty, may be admitted in evidence ; 2 Fairf. 367. But if there were a trial in the case, and the wife was a witness, the record is not evidence. 2 Fairf. 475. 14. Massachusetts. A divorce a vinculo will not be decreed unless a legal marriage be proved. 1 Mass. 241. 15. Massachusetts. In a libel for a divorce a mensa, it is not necessary to prove a marriage, unless it is denied. 2 Mass. 150. 16. Missouri. A deed of separation is no bar to a divorce. 1 Miss. 324. EVIDENCE. 173 17. New Hampshire. If a libel allege adultery with a particular . person, it is not sustained by proof of adultery with any other person. 5 N. Hamp. 195. 18. Massachusetts. "Where a libel alleged adultery to have been coramitted without the State with a person un- known, and there was an appearance for the respondent, evidence was admitted of adultery committed at a place within the commonwealth. 8 Mass. 131. 19. New Hampshire. Upon a libel against the wife, evi- dence is inadmissible to prove that the wife has sustained the character of a lewd and unchaste woman. 5 N. Hamp. 195. 20. Maine. Proof of condonation of adultery may be given in evidence under a general traverse of the facts al- leged in the libel. 3 Grcenl. 136. 21. Maine. In a libel for divorce on the ground of adul- tery, the record of the conviction of the respondent, upon an indictment for that crime, is sufficient evidence, both of the marriage and of the ofience. 4 G-reenl. 100, 326. 22. Massachusetts. A divorce a vinculo for adultery will not be granted upon the confession of the party charged, unsupported by other evidence. 2 Mass. 154 ; 1 Mass. 346. 23. Massachusetts. But where it appeared from the cir- cumstances of the case, that there was no collusion, the re- spondent's confession was held sufficient. 11 Pick. 461. 24. Massachusetts. In a libel for adultery, proof of the second marriage of the respondent is not sufficient evidence of adultery, without also proving cohabitation. 4 Mass. 586. 25. Ohio. "Where there is collusion between the parties, a divorce will not be granted. Wright 243. 26. Maine. The particeps criminis is a competent witness for the libellant. 1 Shep. 110. 27. New Hampshire. In New Hampshire the libel should set forth the place of the marriage. If it took place in the State, and the parties are described as being resident here, no further allegation of residence is necessary. If married elsewhere, a subsequent residence in the State, at the time the cause of the divorce occurred, must be averred. 12 N. Hamp. 200. 174 LAW OF DIVORCE. 28. Ohio. A divorce will not be decreed on hearsay evi- dence, or admission of parties. Wright 354, 632. 29. Ohio. A charge of adultery with a certain woman is too indefinite ; "Wright 284. The name of the person with whom the adultery was committed should be given. Wright 98, 302. 30. Ohio. In a suit for divorce, the libellant's general reputation for chastity may be inquired into, but not as to specific acts. Wright 288. 31. ISTew York. JSTo thing will be considered impertinent in the answer, which can in any event be material to the defendant, either as an absolute defence to the suit, or in re- lation to the question of costs or amount of alimony to be decreed to the complainant, if she succeeds. 11 Paige 46. 32. Alabama. The answer of a defendant, denying the allegations of the bill, does not make it necessary to prove them by two witnesses. Proof by one is sufficient. 11 Ala. 620. 33. Kentucky., In contests on an application for separa^ tion and alimony, to determine the degree of fault, the court must look as well to the provocation on the one hand as the reciprocal duties of the parties. 7 B. Mon. 424. 34. Pennsylvania. It is a rule of policy not to found a sentence of divorce on confession alone. Yet where it is full, confidential, reluctant, free from suspicion of collusion, and corroborated by circumstances, it is ranked with the safest proofs. 6 Barr 332. 35. Pennsylvania. It is a fundamental rule, that it is not necessary to prove the direct fact of adultery, for being com- mitted in secret, it is seldom susceptible of proof, except by circumstances, which, however, are sufficient, whenever they would lead the guarded discretion of a reasonable and just man to a conclusion of guilt. lb. 36. Ifew York. The complainant who asks in divorce for a decree declaring the children of his wife illegitimate, must produce some other evidence of his non-access than the mere fact that his wife was living in open adultery with another person. 1 Barb. Ch. 375. 37. ^ew York. To sustain a bill by a husband against his wife for a separation under the New York act of 1824, EVIDENCE. 175 it is not Bufficient for him to show a single act of violence on her part towards him, but the husband must prove such a continued course of bad conduct on the part of the wife towards himself, and those who are under his protection and care, as to satisfy the court that it is unsafe for him to co- habit or live with her. 1 Barb. Oh. 516. 38. New York. "Where the sole evidence of the husband's adultery was by implication, from the stains upon the defen- dant's linen, supposed to be occasioned by venereal disease, the jury were not authorized to give a verdict in favor of the complainant, and the Court of Chancery should grant a new trial. 1 Barb. Ch. 604. 39. New York. The object of a jury trial in suits for divorce for adultery is to protect the rights of the defendant, and the court will not make a decree of divorce, where there is reason to doubt his guilt. lb. 40. New York. The plaintiff, in a bill for a divorce on the ground of adultery, may state any matter of evidence, or any collateral fact, the admission of which by the defen- dant may be material, in establishing the general allegations of the bill as a pleading, or in ascertaining the nature, ex- tent or kind of relief, to which the plaintiff may be entitled. 2 Barb. Sup. Ct. 59. 41. New York. In such bill by the wife, an allegation that her husband has abandoned her and neglected to pro- vide for her is not impertinent, as it affects not only ali- mony and costs, but is also corroborative of the principal charge. lb. 42. New York. "Where a bill is filed for a separation, upon the allegation of cruelty practised by the husband, and an answer on oath is waived, the defendant suffering the bill to be taken as confessed, the complainant cannot be examined by the master upon the reference, to prove the acts of cruelty charged in the bill, under the 166th rule of the New York Court of Chancery. 2 Barb. Ch. 309. 48. New York. In a suit for a limited divorce, grossly indecent language of the husband used in the presence of the wife will find no palliation or excuse in the fact, that the parties have not enjoyed the advantages of cultivated society. 4 Barb. Sup. Ct. 217. 176 LAW OP DIVOKCE. 44. South Carolina. A divorce by the law of Georgia, being grantable in a court of record, can be proved only by the record. " 3 Strobh. 33. 45. Indiana. In Indiana, to authorize a divorce under the statute of 1843, there must be satisfactory proof, inde- pendently of the confession of the defendant, of the alleged charge. 8 Blackf. 60. 46. Indiana. On a trial where the charge is adultery, the complainant may prove the offence, though he had known of its existence more than two years before the suit was instituted, and the defendant may prove scienter in the de- fence. 8 Blackf. 218. 47. ISTew Hampshire. Testimony in general terms, that the respondent is an habitual drunkard, is insufficient to maintain a libel for that cause. The facts should be given in detail, that the court may judge whether or not they amount to habitual drunkenness. 14 1^. Hamp. 380. 48. New York. Non-cohabitation cannot be proved by a witness deposing, that the parties had not resided together since their separation to the best of his knowledge and belief, but the person with whom the wife had resided since that time should be called to prove that fact. Nor is the unsup- ported evidence of two prostitutes sufficient proof of adultery to authorize the granting of a divorce. 4 Edw. Ch. 566. 49. New York. Where adultery was sought to be proved, by proving that the husband had a venereal disease after marriage, it was held, that as this disease very often appears after marriage, where it has been caused by previous immo- ralities, the court, in the absence of all other evidence, must deem the respondent innocent ; though it is not necessary to prove the direct fact of adultery, it is necessary to show that adultery is the only necessary conclusion from the facts of the case. 3 Sandf Sup. Ct. 307. 50. Pennsylvania. The defendant has a right to establish by evidence, that a Special legislative act of divorce was passed for a cause over which the courts had jurisdiction, and hence that the legislature had no jurisdiction in the case. Evidence is not admissible to show that the divorce was obtained by fraud or falsehood, or that a member of the legislature misrepresented the facts. 2 Jones 350. EVIDENCE. 177 51. Missouri. In Missouri, where both parties to a bill for a divorce are guilty of the offences enumerated in the statutes on divorce, the bill should be dismissed, as the law- contemplates that a divorce should only be granted to an innocent party. 12 Mis. 53, 157. 52. Missouri. On an application for a divorce by a hus- band on the ground of his wife's adultery, evidence of her general good character is admissible. 13 Mis. 16. 53. Texas. The confessions of a party, unsustained by collateral circumstances, are not competent proof of the fact of adultery. 2 Texas 79. 54. Vermont. In the case of a petition for divorce, the testimony of neither party is admissible on the main issue. 24 Vt. 649. 55. Alabama. A sworn answer, the oath to which is unnecessary, denying the allegations of the bill, does not im- pose upon the complainant the necessity of establishing her case by two witnesses, or one witness with corroborating circumstances. 19 Ala. 307. 56. Texas. In a petition for a divorce, a valid, subsisting marriage must be alleged and proved, but proof of general reputation, cohabitation, and general reception as husband and wife is sufficient. 6 Texas 3. 57. Texas. Evidence that the petitioner had been mar- ried before she married the defendant, and that the marriage was subsisting at the time, was held inadmissible to show that the present parties were never legally married. lb. 58. Illinois. Unless parties can show such a case as the law requires for a divorce, they should not be encouraged to seek for one, as the marriage contract will not be dissolved for any trivial cause. 15 111. 186. 59. Texas. In a suit for a divorce on the ground of adul- tery, the testimony of the partieeps criminis is of the weak- est and most unsatisfactory nature, if admissible at all. 13 Texas 468. 60. Texas. In an action for a divorce, the marriage must be proved by other evidence than the admission of the de- fendant, lb. 61. Alabama. The particular act of violence charged in the bill must be substantially prov6d, but it is not necessary 12 178 LAW OF DIVOECE. that all the non-essential circumstances attending it should be proved precisely as alleged. 27 Ala. 222. 62. Georgia. In a suit for divorce for adultery, it is com- petent for a witness to testify as to his opinion, in respect to solicitude or tender interest manifested by the wife at the sick bed of a man not her husband, whether evinced by words or actions. If he cannot recollect the words used, he may give the impression left upon his mind by them. 18 Geo. 646. 63. Georgia. But letters written by the person suspected, in reply to those purporting to come from the wife, but actually written by the husband without her knowledge, and acts done by him in consequence of such letters, are in- admissible as evidence. lb. 64. Georgia. So also are declarations of such suspected person, as to his having had criminal intercourse with the wife, not made in her presence, and not known to have ever been brought to her knowledge. lb. 65. Arkansas. A decree jiro confesso against the defen- dant, is not sufficient, without evidence to sustain the alle- gations of the complainant's bill, to authorize the court to decree relief from the bond of matrimony. 16 Ark. 527. 66. Indiana. "Where cohabitation, as a matter of defence, is not set up in the answer, it cannot be proved on the trial. A finding, based upon such proof, could have no legal effect on the decision of the cause, and might be rejected as sur- plusage. 9 Ind. 105. 67. Alabama. The enactment in Alabama, that " no de- cree can be rendered on the confessions of the parties" does not mean that the confessions are inadmissible, but insuffi- cient evidence when they stand alone and unsupported. 28 Alabama 315. 68. Illinois. A decree of divorce can be rendered on a bill taken pro covfesso only upon evidence heard in support of its allegations. A decree so rendered is good on error brought, though such evidence be not preserved upon the record. 18 111. 39. 69. Pennsylvania. Whether certain ambiguous words, uttered by the respondent, involved a threat of personal injury, is a question for the jury. 2 Casey 161. EVIDENCE. 179 70. Pennsylvania. In a proceeding for a divorce on the ground of desertion, it is not sufficient for witnesses to tes- tify, that the respondent wilfully and maliciously deserted the libellant, in the words of the statute. Facts must be proven, showing that such desertion has taken place, and that it was wilful and malicious. 6 Casey 412. 71. Louisiana. The rule that in actions of separation from bed and board, both parties should be dismissed when guilty of mutual wrongs, has its qualification, that the wrongs should be similar in nature, and so proportioned in extent, as to render it difficult to ascertain which party is mainly in fault. 13 La. An. 127. 72. Georgia. Where evidence consists exclusively in con- fessions, a tetal divorce will not be granted. 24 Geo. 238. 73. Missouri. The admissions of the husband are not alone sufficient to maintain the charge of adultery, but if supported by other proof, or corroborated by circumstances clearly proved, his admissions are competent, and sufficient to justify a decree for a divorce a vinculo. 3 George 279. 74. Missouri. The admissions of a party in a proceeding for a divorce against him are evidence, but alone they are not made the foundation of a decree. 6 Jones 383. 75. Kentucky. Abandonment for one year is a ground of divorce which may be proved by one witness. 1 Met. 476. 76. Georgia. On a libel for desertion, evidence that the libellant was cruel in some degree, though not sufficiently as to justify the wife in leaving him, and that he declared she should not live with him again, is admissible to show that he was consenting to the desertion, and thus to defeat the libel. 29 Geo. 281. 77. Georgia. The confessions of the parties are admissi- ble, where there is no pretence of collusion. 29 Geo. 718. 78. Mississippi. Where there is no suspicion of collusion, the declarations of the parties at the time of the separation are competent as part of the res gestae, to show which party desired the separation, and so became the deserter. 56 Miss. 517. 79. California. The statute, providing that no divorce shall be granted upon admissions, means that it shall not be granted upon them alone. Therefore, where the rest of the 180 LAW OP DIVORCE. testimony and the circumstances show that there can be no collusion, and leave no doubt as to the truth of the confes- sions, the court may act upon them thus corroborated, 13 Cal. 87. 80. Texas. The judge is not to decree a divorce, unless the evidence be full and satisfactory to his own mind. A verdict of a jury is not conclusive on the judge; he must also be clearly satisfied, and his decision is prima fade cor- rect. If he be not satisfied, the petition should be dismissed without prejudice. 22 Texas 237. 81. California. To be an absolute bar, the conduct of the libellant must be such as, standing alone, would authorize a decree against her on a libel by the respondent. Still, as the court has discretion whether to decree a divorce a vin- culo or a mensa, desertion, not amounting to a bar as above, may be considered by the court in the exercise of that dis- cretion, 10 Cal. 249. 82. California. Ordinarily, if the libellant be not entirely without reproach, a divorce a mensa only will be decreed. lb. 83. Missouri. Where the evidence is conflicting, and the decision of the court that tries the cause depends upon the credibility of witnesses, the Supreme Court will not inter- fere. 29 Mis. 96. 84. Iowa. The court must be satisfied, notwithstanding the admission by the defendant that a divorce is proper, before it will grant it. 1 Clarke 130. 85. Maine, ^Neither the husband nor wife can, under the Revised Statutes, testify as witnesses in a divorce suit, to which they are parties. 46 Maine 377. 86. Pennsylvania. The mere opinion of witnesses about the probable eflFect of the husband's conduct are inadmissi- ble in evidence, 1 Wright 225, 87. Massachusetts, On the trial of a wife's libel for di- vorce for .cr,uelly neglecting to support her, the exclusion of evidence of the causes of a former separation, after which cohabitation took place again, is no ground of exception, if these causes were acts, which, if they had occurred after the condonation, would not bar the libel. 14 Gray 186. 88. Massachusetts. It is no ground of exception, that the judge, upon the trial of a libel for divorce, ruled that cer- EVIDENCE. 181 tain evidence constituted no defence, instead of instructing the jury what would in law constitute a defence to the libel, and leaving them to decide whether the evidence offered would constitute one. lb. 89. Massachusetts. A party to a libel for divorce, under the statute of 1857, cannot testify to private conversations between the parties, while living together as husband and wife. lb. 90. N"ew York. Under the code of 1857, a party to a divorce case is a competent witness in his own behalf. 9 Smith 85. 91. J^ew York. The libellant must prove a full and com- plete case ; nothing will be taken in his favor by presump- tion or intendment as to the facts, even in case of a default in answering or at the hearing. 36 Barb. 61. 92. California. In a suit for divorce, the wife's adultery with C. was alleged. Held, that on cross-examination of C, questions as to the conduct of himself and defendant towards each other when travelling, and as to their intimacy since suit brought, were proper, as affecting his credit, and enabling the jury to see what effect these things had, or might have had, upon his evidence. 17 Cal. 605. 93. California. A plaintiff for divorce on the ground of desertion, is not required to show negatively that no cause for the desertion existed. 20 Cal. 431. 94. Iowa. Evidence in an action for desertion must show that the complainant was not instrumental in procuring the absence of the respondent. 4 Greene 324. 95. Minnesota. A decree of divorce cannot be made solely upon the admission of facts charged in the complaint ; but these must be proved by witnesses other than the parties to the record. 6 Minn. 458. 96. Ifew Hampshire. In a libel for divorce, the husband is not a competent witness to prove non-access. 44 N". Hamp. 587. 97. California. In an action of divorce, the marriage of the parties is sufficiently proved by the defendant's admis- sion, or failure to traverse the allegation of it in the com- plaint, and in such a case it is not necessary that the fact of the marriage should be found. 25 Cal. 587. 182 LAW OP DIVORCE. 98. New Hampshire. The mere admissions of the libellee are not sufficient to prove adultery in a divorce suit. 45 N. Hamp. 121. 99. Indiana. Under the act in relation to witnesses, hus- band and wife are incompetent as witnesses in suits for divorce. 25 Ind. 156. 100. ISTew Jersey. Parol evidence of the declarations of a particeps eriminis, even though he has confessed his guilt, is not competent evidence against a party charged in a divorce suit with adultery. 1 G-reen 122. 101. 'New Jersey. When a husband holds in his hands what he claims to be satisfactory proofs of the adultery of the wife, his delay to file a bill for divorce is strong evidence in the wife's favor. lb. 102. IS'ew Jersey. It is a well-settled rule of this court, that in questions of divorce, guilt cannot be established by the unsupported testimony of either of the parties. 2 McCarter 138. 103. Missouri. In a suit for divorce against the husband for desertion, and a cross bill by the husband, charging the wife with adultery, evidence of the general reputation of the wife for chastity is inadmissible. 39 Mis. 490. 104. Missouri. The plaintiff must show herself entitled to prevail by a general averment and proof of her own good character, coupled with a statement of the cause of action, and this statement being a negative averment, a simple denial by the defendant would not present such an issue as to develop the facts in the case. The defendant, in his answer, must show such facts as would justify his conduct. lb. 105. Pennsylvania. Pending proceedings instituted by the wife for a divorce a mensa et thoro, the husband procured an act of assembly divorcing them absolutely. Held, that the divorcing act was evidence in the proceedings. 4 P. ¥. Smith 265. 105^. Pennsylvania. Where the testimony is ex parte, the defendant not having been actually summoned, and the parents of the libellant are the only witnesses, and hence likely to be biassed by relationship and affection, their evi- dence should be carefully scrutinized and their opinions BVIDENOE. 183 are worth nothing as proofs of wrongs inflicted. 7 P. F. Smith 232. 106. Kentucky. A party seeking a divorce under the revised statutes, which provides that a divorce may be granted to the party not in fault for certain causes, must allege and prove that he was not in fault. 1 Bush. 74. 107. New York. Where the evid'ence of adultery in an action for divorce rests on the unsupported testimony of the paramour, the case will be referred back for further evidence, the testimony of the paramour being subject to the same objection as that of any other accomplice. 5 E.ob. 611. 108. Ifew Jersey. The complainant, in a bill for divorce a mensa et thoro on the ground of cruelty, has the burden of proof, and must sustain her case by something more than, equally balanced testimony. 3 Qreen 300. 109. G-eorgia. In a suit for divorce, evidence of the transfer of the husband's property before the separation of the parties is admissible in connection with other evidence, tending to show whether or not such transfer was in fraud of the rights of the wife. The antenuptial settlement is admissible also to show the source of the property. 36 Geo. 286. 110. Georgia. The declarations of a wife, in the act of leaving her husband during his absence, are admissible for the purpose of explaining her motives and conduct. Ih. 111. Georgia. "Where an attorney of the Court is ap- pointed to see that an ex parte divorce suit is proceeding on legal grounds, he may introduce evidence to show that the applicant is not entitled to a divorce. 36 Geo. 618. 112. New Hampshire. Upon a libel for divorce on the ground of adultery, confessions may be received, and if cor- roborated, may justify a decree of divorce, and the record of the plea of guilty to an indictment for the crime in another State is admissible evidence of that confession. 47 1^. Hamp. 395. 113. Michigan. To maintain a bill for divorce on the alleged ground that assent to the marriage was obtained by. fraud, there must be satisfactory evidence sustaining the charge, irrespective of the declarations, confessions and ad- missions of the parties. 18 Mich. 335. 184 LAW OF DIVORCE. 114. ^ew Jersey. '"When divorce courts require adultery to be clearly proved before a divorce will be decreed for that cause, they do not merely mean that it must be clearly and directly sworn to, but that the proof must be entitled to and command belief. Evidence of a witness notoriously unchaste, and in her evidence untruthful and reckless, ought not to be sufficient to dissolve the marriage tie of a man, against whose conduct for fidelity to his wife during the many years of their relation, nothing else is shown. 4 Green 37. 115. Alabama. In suits for divorce, the court may re- ceive evidence of the plaintiff's misconduct, although not alleged in the answer. 39 Ala. 348. 116. New Jersey. It is a settled principle in causes of divorce, never to grant a divorce where the only proof of the ground of the divorce is the testimony of the com- plainant. Unpublished decision of chancellor. May, 1871. 117. !N'ew Hampshire. In a libel for a divorce for the cause of adultery, a plea 'of guilty, to an indictment for adultery, is admissible in evidence, although the proceeding was in another State. 47 "N. Hamp. 395. 118. New Hampshire. The confession of the libellee, when corroborated by other evidence, may justify a decree of divorce. lb. 119. ISTew Jersey. The precise time of the adultery stated in the bill is not necessary to be proved, provided the vari- ance is not so great as to mislead the defendant. 5 C. E. G-reene 216. 120. New Jersey. Evidence sufficient to establish the fact that the defendant and her house are of ill repute, are not sufficient to entitle the complainant to a decree of di- vorce for adultery, lb. 121. Massachusetts, The usage of not granting a divorce upon the uncorroborated testimony of the libellant is merely a general rule of practice, not an inflexible rule of law. 100 Mass. 150. 122. New Jersey. Although the testimony of a party is competent in divorce cases, a divorce will never be granted upon such testimony alone as to the cause of such divorce. 6 0. E. Greene 251. PROPERTY. 185 Vide the following sections under their respective divi- sions : — Practice, g§ 36, 50, 53, 90, 148. Position after Divorce, § 39. Alimony, § 218. Propertg* INDEX OF SECTIONS. Alabama, 23, 26, 27, 40, 41, 60. Arkansas, 115, 116. California, 59-71, 82, 85, 104, 105, 130-123. Connecticut, 13, 117. Delaware, 30, 33, 63, 113. Georgia, 47, 61, 93, 103, 106. IlUnois, 34, 79, 100, 101, 110, 118, 119. Indiana, 7, 43, 57, 73, 86 ,109, 125- 127. Iowa, 111. Kentucky, 4, 51-53, 76-78, 89, 90, 123, 181, 132. Louisiana, 65, 68, 81, 83, 84. Maine, 91, 129. Massachusetts, 11, 12, 14, 15, 54. Maryland, 39, 43, 44. Michigan, 10. Minnesota, 80. Missouri, 33, 130. Mississippi, 48, 64, 69. Nevada, 112. North Carolina, 74. New Hampshire, 55, 56, 63, 73. New York, 1, 5, 6, 39-31, 35, 75, 88. Ohio, 8, 9. Pennsylvania, 16-18, 33, 93-99. Tennessee, 19, 28, 50, 107. Texas, 86-38, 45, 46, 55, 66, 67, 70, 87, 134, 128. Vermont, 21, 32, 108. Virginia, 24, 25, 114. Wisconsin, 103. 1. ISew York. After a ne exeat granted, and an injunc- tion to restrain the husband from alienating his property, pending a suit by the wife for a divorce, a receiver of the property of the husband was appointed on the affidavit of the wife. 1 Paige Ch. 261. 2. Alabama. On a bill by the wife, in which she does not claim alimony, a decree in favor of the husband cannot be rendered on his answer, for money paid by him for her debts contracted before marriage. If such decree could be made, it niust be on a cross bill filed by him. 5 Ala. 75. 3. Alabama. Where it appears that the husband has made a settlement to the separate use of his wife and her children by a former marriage, it seems, the court will not decree a divorce on the bill of the wife, until she could make a reconveyance of such separate estate. lb. 186 LAW OP DIVORCE. 4. Kentucky. A decree for a division of an estate in a suit for a divorce may be revised by the Court of Appeals, though it is precluded from disturbing that part of the - decree which grants a divorce. An allowance obtained by the wife, whose conduct is blameless, equal to what the law would have given her on the death of her husband, was held reasonable. 4 Litt. 251. 5. 'New York. Where a husband has been guilty of an act entitling the wife to a decree of separation, the court may make provision for the maintenance of the wife out of the property of the wife, though reduced to possession by the husband against judgment-creditors and all others who have not acquired a specific lien upon the property, without notice of the wife's rights, and her intention to enforce them. 6 Paige Ch. 366. 6. New York, Upon a decree of divorce for the adultery of the husband, all the separate rights and choses in action of the wife which had not been reduced to possession by the husband before the commencement of the suit, will belong to the wife, discharged of the claims of the husband, in the same manner as if the marriage had been, dissolved by the death of the husband. 10 Paige Ch. 420. 7. Indiana. Pending a bill for a divorce by the wife, the court may make an order, restraining the husband from con- veying his property pendente lite ; but such order will not affect purchasers of it without notice of it. 2 Blackf. 295. 8. Ohio. Where a husband conveys property to his son to put it out of the reach of his wife, should she obtain a decree for alimony on a bill pending, a court of equity will enjoin father and son from proceeding to change the situa- tion of the property, and will subject it to the wife's claim for alimony. Wright 492. 9. Ohio. A decree for alimony payable by instalments does not operate per se as a lien upon the lands of the hus- band. 10 Ohio 268. 10. Michigan. Upon a divorce for any other cause, excepting the adultery of the wife, she is entitled to the immediate possession of all her real estate as if her husband were dead. Walker Ch. 309. 11. Massachusetts. A decree of divorce, directing to PROPERTY. 187 restore to the wife the personal property which she brought to her husband at marriage, does not operate on articles con- sumed or disposed of at the time of the divorce. 5 Pick. 428. 12. Massachusetts. The Supreme Judicial Court, on grant- ing a divorce a mensa, has no authority to decree a restora- tion to the wife of the personal property which belonged to her at marriage. 5 Pick. 461. Such divorce does not affect the right of the husband to reduce to possession choses in action, which belonged to the wife before divorce. lb. 13. Connecticut. The right of the husband- in the land of the wife is terminated by a divorce a vinculo for the crime of the husband. Where, therefore, a creditor of a husband had seized under execution a husband's right in his wife's land, and a divorce a vinculo was granted for the crime of the husband, the creditor's right in the land was thereby terminated. 8 Conn. 541. 14. Massachusetts. By the Massachusetts statute of 1785, upon a decree, that the wife shall be divorced a mensa and restored to her lands, she ca'n recover the land which has been alienated by the husband during the coverture without her consent. 2 Pick. 316. 15. Massachusetts. The interest acquired by a judgment- creditor of the husband by an execution upon the rents and profits of the wife's real estate is determined and defeated by a decree of divorce a vinculo in favor of the wife. 10 Mass. 260. 16. Pennsylvania. A divorce obtained by a wife from her husband, places her in the same situation as to her legal rights, in reference to property owned by her before mar- riage, or acquired by her during its continuance, as if she had actually survived her husband. 2 Ashmead 455. 17. Pennsylvania. The debt of a husband, contracted with his wife's father during coverture, cannot be set off after a di- vorce against the distributive share of the wife in her father's estate, although the decree of divorce was subsequent to the death of the intestate. This distributive share is a mere chose in action, and the administrators could only allege 188 LAW OF DIVORCE. the set-ofi" where the husband before divorce had asaerted his right to recover. 6 Watts 132. 18. Pennsylvania. A divorce a mensa et thoro does not destroy the relation of marriage, but merely suspends some of the obligations arising out of that relation, hence the right, as regards succession of property, is not impaired. Thus, a wife is dowable of her husband's lands, and the husband is tenant by the curtesy of his wife's lands. 6 "Watts & Sergeant 85. 19. Tennessee. In Tennessee, upon a divorce a vinculo^ the marriage is adjudged void ah initio, and the possession of the wife's property, which belonged to her at the time of her marriage, is restored to her. 1 Meigs 131. 20. Delaware. In Delaware, on a decree of divorce for the adultery of the husband, the court allowed the wife one- third of his lands for life and appointed commissioners to assign it. They also allowed a writ of habere facias posses- sionem to put the wife into possession. 2 Har. 142. 21. Vermont. In Vermont, on a petition for a divorce, where real estate held by the husband in right of the wife, had been levied upon by the creditors of the husband, it was held that the creditors, as such, could not be permitted to appear and resist the petition, on their suggestion, that the "petition was collusive, and intended to defeat their rights. 10 Vt. 540. 22. Vermont. But it seems, attorneys of the creditors, or any member of the bar, may, as amici curiae, suggest such collusion to the court. No order will, however, be made by the court that the evidence in the case be submitted to their inspection. lb. 23. Pennsylvania. On a decree of divorce, the court will inquire into waste committed by the husband on the wife's land since the petition, and compensate her for it out of the husband's estate, 1 Har. 516. 24. Virginia. The Virginia statute of 1827 respecting divorces, which authorizes the Chancery Court to restore to the injured party as far as practicable the rights of property conferred by the marriage on the other, does not authorize the court to interfere and defeat the vested rights of ere- ditors, or bond fide alienees or incumbrancers, whose rights PROPERTY. 189 attached prior to the institution of proceedings for the di- vorce, and when the property was absolute in the husband. 2 Gratt. 350. 25. Virginia. In such case, an attachment on mesne pro- cess is superior to the claim of the wife. lb. 26. Alabama. In Alabama, upon a divorce a vinculo, it is the duty of the chancellor to make a division of the estate of the parties. But the law does not require an equal divi- sion, but one graduated according to the nature of the case, considering the cause for which the divorce is granted, the party offending, the age of the parties, the estate to be di- vided, &c. ; but, in all cases, if the estate of the husband is sufficient, the wife is entitled to a maintenance. In this case, one-third of the personal property absolutely, and the use of one-third part of the land for life was decreed to the wife. 11 Ala. 763. ' 27. Alabama. The proper course in such a case is, after the decree, for the wife to file an " allegation of faculties," setting out the estate of the husband, which he is required to answer ; after which, proof may be adduced. lb. 28. Tennessee. In Tennessee, upon a divorce a vinculo, the wife is entitled to a fair portion of her husband's estate for her support; and the amount thus to be appropriated is a matter within the legal discretion of the chancellor, sub- ject to the revision of the Supreme Court. 7 Humph. 440. 29. New York. Under the JSTew York statute respecting separations, the court has authority to make a decree, divest- ing the husband of all control over the property of his wife, whenever from the nature and circumstances of the case such a decree would be just. 2 Barb. Sup. Ct. 877. 30. !N"ew York. After a decree of separation obtained by the wife, the court can protect her in the enjoyment of the fruits of her industry and such property as she may derive by inheritance or otherwise, subsequent to the decree. lb. 31. Ifew York. Independently of the act of 1848 in IS&vr York, courts of equity in suits for divorce or separation have the power of restoring to the wife the whole, or a portion of her property, and of restraining the husband, on a bill filed by the wife, from receiving gifts or legacies to her after such divorce or separation. 4 Barb. Sup. Ct. 295. 190 LAW OF DIVORCE. 32. Delaware. A divorce, restoring to a wife her lauds, divests judgment liens created by the husband, and annuls sales made under such liens. 4 Harring. 440: 33. Missouri. A husband and wife residing in Louisiana bought land with common money in Missouri, and after- wards, upon their return to Louisiana, were divorced. In a suit in equity, brought by the wife to recover her interest in the land, it was held, that the land would be considered as held by the husband in trust for his wife, to the extent of her interest in the money invested in the purchase, there being no evidence of any assent on the part of the wife to a change in the property by the investment. 11 Mis. 314. 34. Illinois. An antenuptial agreement to convey to his intended wife certain property is void, where a divorce takes place prior to the trustee being called upon to compel the conveyance. 11 111. 105. 35. New York. A divorce decreed for the husband's adultery does not deprive the wife of her right of dower in his real estate. 4 Comst. 95. 36. Texas. The provisions of the statute, exempting de- fendants in suits for divorce from answering on oath, and rendering the admissions of parties incompetent as proof, do not apply to such statements in the pleadings as relate to the property of the parties, and upon which the restraining orders of the court are to.be grounded. 3 Texas 168. 37. Texas. A wife is entitled to an injunction to restrain her husband from selling or encumbering their common prop- erty in any manner whatever, pending a suit for a divorce. lb. 38. Texas. When a divorce is decreed, it is a dissolution of the marital rights in relation to the common property of the parties, and the wife is entitled to her share of such property and to her own separate property, if any she has. 3 Texas 336. 39. Maryland. The effect of the Maryland statute passed in March, 1850, was to restore to the wife the real estate of which she was seised at the time of the marriage, and which had not been conveyed away, during coverture, by the joint act of herself and husband. 2 Md. 429. 40. Alabama. If a husband, with no intention of return- ing, removes into another State, and abandons his wife, con- PROPERTY, 191 tinuing so to do for five years, the law allows her to contract and sue as though a feme sole. 15 Ala. 141. 41. Alabama. "Where a divorce a vinculo is decreed the wife, it is error to decree alimony to her, instead of a division of the estate between the parties. 19 Ala. 363. 42. Indiana. In Indiana, when a divorce has been granted on account of the misconduct of both parties, the wife can- not afterwards claim dower in the husband's lands. 2 Carter 233. 43. Maryland. A conveyance of personal property by the husband, which would be valid against the claim of the wife in case she survived him, is good against her claim for maintenance during their separation. 3 Md. Ch. Decis. 140. 44. Maryland. The fact that the complainant had filed a bill in the equity side of the county court for a divorce and alimony, before bringing her bill in chancery for a pro- vision out of her husband's estate, without asking for a divorce, is an insuperable objection to her obtaining relief iu'the latter court, lb. 45. Texas. "Where partition of all the property, real and personal, which, the defendant owned at the commencement of the suit, was decreed by the court, and commissioners of partition were appointed, they were authorized to look be- yond the property enumerated in the petition, and divide any other property they might find. 7 Texas 526. 46. Texas. The inventory which is taken in a suit for divorce and a division of the property, is not conclusive against the wife. Ih. ■ 47. Georgia. In cases of partial divorce, there is no lien created on the husband's property, until the judgment is rendered; neither are two concurrent verdicts necessary. 16 Geo. 81. 48. Mississippi. A title to the wife's property, perfected in the husband before a divorce, cannot be asserted by her after a divorce. 5 Cush. 630, 49. Illinois. A wife holding lands, and applying for a divorce, the court may, upon decreeing alimony, order that such lands be divided between the parties, and that they execute to each other conveyances to perfect such decree 15111.145. 192 LAW OF DIVORCE. 50. Tennessee. Where the husband, in contemplation of marriage, had promised the wife to settle her property on herself and children, and on the day of the marriage exe- cuted an instrument really vesting the title in himself, by which the wife was deceived and defrauded, and she in a bill for divorce alleged these facts, and also intolerable abuse, all which was proven, the chancery court, in decree- ing the divorce, also decreed that the wife's property and effects should be restored to her. 2 Sneed 496. 61. Kentucky. The rule of equity, which requires, upon the recession of a contract, that the parties should be re- stored to their original condition, cannot be applied in a case of divorce a vinculo. 15 B. Mon. 49. 52. Kentucky. The law in force at the time the facts alleged in the petition for a divorce occurred, must govern in regard to the distribution of property under that decree. lb. 53. Kentucky. Such division of property should be equitable, due regard being had to the rights of the parties and the children, if any, and should not divest either party of the title to real estate. In determining the amount of alimony, the actual estate of the husband, the fact that he received a large estate by the will of ^he wife's father, and in consideration of marriage, and also the general good character and conduct of the wife, must be considered. lb. 54. Massachusetts. A decree, dismissing for want of proof a libel filed by a wife alleging cruel treatment, is not conclusive evidence of her having unjustifiably left his house, in an action by a third person against him for neces- saries furnished the Wife. 3 Gray 387. 55. !New Hampshire. An assignment of part of a hus- band's estate to his wife upon a divorce, as alimony, vests the title in her, as the assignment of a bankrupt's estate vests it in the assignee. 11 Foster 452. 56. ISTew Hampshire. If the property assigned is a right of action, the wife may maintain an action in her own name, but her declaration should show her title as assignee. lb. 57. Indiana. A jury returned a verdict in favor of the divorce, and having ascertained the value of the husband's PROPERTY. 193 real estate, set off one-third of it to the wife. A decree was^ then entered. On an appeal, that part of the decree was reversed which set off the real estate, and the cause remanded with instructions to decree one-third the net value of the real estate as alimony. 6 Ind. 100. 58. Texas. The constitution of the State and the law of 1848 made' no change in the rule of division of property on divorce. 14 Texas 443. 59. California. Under the statute of 1850, a petition for the partition of common property is well joined with an application for a divorce. In such petition, the wife has a right to make a party to the suit, any one claiming an in- terest in the property, and it is proper for her to disclose in what the property consists, its nature and value; 3 Cal. 512. 60. Alabama. A decree of divorce a vinculo, in favor of the wife, defeats and determines all the rights and interests of her husband in and to her lands, and of others claiming under a mortgage executed by him, and restores her rights, precisely as her husband's death would have restored them. 28 Ala. 332. 61. Georgia. "Where the libellant rendered a sworn sche- dule of his property, and obtained a verdict, it was held, that creditors have the first claim to the property, and after the payment of all just debts, the jury may award a portion of the property to either the libellant, the respondent, or the issue of the marriage, or to all. The term "either" in the statute may mean "each" or "both." 20 Geo. 120. 62. New Hampshire. A divorce does not, ipso facto, cut off the rights of the husband in the real estate of his wife. It requires the decree of the court granting the divorce to disencumber the estate from the husband's rights. 36 iN". • Hamp. 344. 63. Delaware. "Where land is assigned to the wife upon a decree of divorce, she is entitled to rents from the confir- mation of the return. 5 Hairing. 106. 64. Mississippi. A divorce a vinculo granted to a wife, with a restoration to all her rights of property, will not enable her to recover against a purchaser of property, owned by her at the time of the marriage, from her husband, who had the legal right to sell the property. 4 George 547. 13 194 LAW OF DIVOKCE. 65. Louisiana. The acceptance of the wife, separated from bed and board, of the community need not be by nota- rial act — it may be express or tacit. 13 La. An. 387. 66. Texas. In granting a divorce, the court may make such a division at least of the community property, in refer rence to the condition of the parties, and the support and education of the children, as may be equitable. 15 Texas 18. 67. Texas. "Where a husband alienates a part of the community property, after the wife has sued for a divorce, if the alienation does not appear to be made for the benefit of both, the husband will be charged with the value, where the property is divided. 16 Texas 663. 68. Louisiana. The fees of counsel employed by the wife to prosecute a suit for a divorce and a partition of the com- munity property, must be paid by her out of her separate estate ; the community cannot be held liable for them. 14 La. An. 734. 69. Mississippi. A husband may show, in a suit against his wife's vendee, that the decree of a divorce a vinculo, which gave to her the property, was obtained by fraud, and therefore that neither she nor her vendee got any title by it. 8 George 185. 70. Texas. A decree of the District Court partitioning the property of divorced parties, if clearly unjust or oppres- sive to either party, would be subject to revision and correc- tion. 23 Texas 344. 71. California. Where land claimed as a homestead has never been the residence of the family, it is common property, and is to be treated as such upon judicial division of the property after divorce. 10 Cal. 224. 72. Indiana. In a suit by the wife, whose husband had abandoned her, asking that a conveyance of his land, in which she joined, may be set aside, and that she may be allowed a support out of it ; where there is but a nominal judgment for alimony, the conveyance of the land will not be disturbed for the collection of the judgment, at least till after a refusal or failure to pay that nominal judgment with- out such disturbance. 13 Ind. 396. 73. New Hampshire. , The Supreme Court may make such orders in relation to the property, real and personal, of a PROPERTY. 195 husband ordered to pay alimony to a divorced wife, as may be necessary to carry the decree into full eiFect, and protect the rights of the wife. 40 l^T. Hamp. 516. 74. North Carolina. Where a wife filed a petition for a divorce and alimony, it was held, that a court of equity would not, in favor of such wife, restrain an assignee from reducing into possession a chose in action of the wife, assigned him by the husband for value, and without notice of an equity in the wife. 6 Jones Eq. 284. 75. New York. In proceedings in a divorce suit, chan- cery has no authority to require a married woman, although a party, to accept a gross sum from her husband in lieu of dower. 36 Barb. 410. 76. Kentucky. The revised statutes, c. 47, art. 3, does not require that the decree of divorce should order the restora- tion of the property between husband arid wife, but rather contemplates that such ord^r for restoration should be based upon the order for divorce, and it may, consequently, be made afterwards. 3 Met. 486. 77. Kentucky. The order of restoration contemplated in § 462, civil code, is a formal one, to be made where no men- tion of the property to be restored has been made in the pleadings, and was not designed to apply to specific property, or to settle any controversy thereabout between the divorced parties, or one claiming under either of them. Such con- troversy may be settled, after the order, by subsequent pro- ceedings, lb. 78. Kentucky. In proceedings for divorce, no attachment or injunction is required between husband and wife, nor is it necessary to entitle the wife to restoration of her property, that such property should be referred to in her petition. lb. 79. Illinois. In a suit for divorce, the decree should not perpetually enjoin the respondent from selling his property and direct his imprisonment until he give bond for the pay- ment of alimony; but should declare the alimony a lien upon the realty, and enjoin the sale of the land, until the respondent shall have executed a mortgage therein as secu- rity. 25 111. 136. 80. Minnesota, Pending a suit for divorce brought by the wife, an agreement was entered into between the parties. 196 LAW OF DIVORCE. whereby the husband conveyed certain property to a third party, which was to be transferred to trustees for the benefit of the wife, if she should not appear, nor claim alimony in the suit. Held, that the agreement was against public policy, and its concealment a fraud upon the court, and that its enforcement would not be directed. 5 Min. 211. 81. Louisiana. The wife who is divorced from her hus- band and takes no steps to accept the community within the legal delays, is presunSed to have renounced it. 15 La. An. 416. 82. California. The statute of California, defining the common property of husband and wife, and providing for the division of common property, in case of .divorce, is a mere regulation of a right of property,, and does not pro- vide a new right of action, and a proceeding for a division of such property need not conform with the strict require- ments governing statutory actions. 22 Cal. 636. 83. Louisiana. "When a judgment of the separation of property was rendered contradictorily on due proof, and not upon the confession of the husband, held, that the plaintiff was regularly separated in property with her husband, and that the decree of separation carried with it a dissolution of the community. 16 La. An. 318. 84. Louisiana. "When a causa superveniens, the severance of the marriage tie occurs, property (dotal) previously in- alienable, will be subject, like all other property of the de- fendant, to seizure and sale under execution. 16 La. An 363. 85. California. Under the California statute, the court, before which a proceeding for divorce is brought, has autho- rity to divide the common property upon granting a divorce, although such division is not prayed for in the complaint 22 Cal. 633. 86. Indiana. The husband obtained a divorce, and, at his request, certain property was set off to her by the court. Afterwards, at the same term, he moved the court for a new trial for other reasons, recently made known to him, which, if known and disclosed, would have enabled him to obtain the divorce without letting her have the property. Held,^ PROPERTY. 197 that under the circumstaAces, the motion for a new trial was correctly overruled. 22 Ind. 31. 87. Texas. In a suit for divorce, the court may not only appoint a trustee to take charge of the community of the husband and wife, and apply the proceeds to the support of children, but may also divide their separate property in cases of necessity, or the whole, both separate and community, may be kept together for the benefit of the children. 21 Texas 58. 88. "New York. Until after an order has been made by a court, by whom an absolute divorce has been decreed in favor of a wife, requiring the husband to give a bond, with surety for the payment of an allowance awarded to the wife, and the failure of the husband and surety to fulfil the condition, the court is not authorized to sequester the estate of the husband, appoint a receiver thereof and apply it to the pay- ment of such allowance. 9 Bosw. 686. 89. Kentucky. Upon granting a divorce for the husband's cruelty, a decree that she should have the use of one-half his land, or $1200, and the title to one-half of his movable property, she having no property of her own, was held to be just. 1 Duvall 197. 90. Kentucky. The court in allowing maintenance to a wife out of her husband's property upon a divorce, has no power to devise the title of the husband's real estate. lb. 91. Maine. A divorce granted by the legislature is not invalid as impairing the obligation of contracts. 51 Maine "480. 92. Georgia. It is not error to charge a jury, that if they find a partial divorce, they may give the plaintift' a portion of her husband's property as her own. 31 Geo. 625. 93. Pennsylvania. A wife is not entitled to dower, where an unreversed decree of divorce a vinculo exists. AH the duties, rights, and claims of the parties in pursuance of the marriage, cease and determine with the divorce. The only distinction in a divorce decreed for adultery, is the provi- sion that the guilty party shall not marry the paramour during the' life of the former husband or wife. With this restriction, a divorce a vinculo works the same eftect as the death of either party. 4 Wright 151. 198 LA-W OP DIVORCE. 94. Pennsylvania. A widow, who had been divorced a mensa et thpro, is not entitled to the $300 exemption on the death of her husband, under the act of April 14, 1851. The purpose of that act was to make an immediate provi- sion for the wants of the family, when the head of it is re- moved by death. "When uo family relation exists, it can with no propriety be said that the property remains or is retained, whereas the right is to retain the property which shall remain for the use of the widow and family. 5 P. F. Smith 290. 95. Pennsylvania. As to the question, whether a divorce decreed in another State without the wife's knowledge, dis- charged the husband's lands in Pennsylvania from the wife's right of dower — the court held, that as neither the person nor the property of the wife was within the power of the court decreeing the divorce, no extra-territorial effect in re- lation to property can be imputed to its judgment. When the injured party seeks a new and different domicile, there is no reason why the husband's new domicile should prevail over the wife's, nor vice versd. Neither should draw the other into the folds of a foreign jurisdiction. By marriage, the wife has claims upon her husband's property here. On what principle of right or comity shall the decree of a distant tribunal cut loose those claims? The husband had his right of action in this State, and the courts had jurisdiction over the person of his wife. In seek- ing a new domicile, he abandoned these rights. 5 P. F. Smith 375. 96. Pennsylvania. "Where a husband and wife jointly own real estate, their divorce makes no other change than to free the wife and her estate from the control of the hus- band. 6 P. F. Smith 475. 97. Pennsylvania. A trust for the separate use of a mar- ried woman ceases on the death of her husband, or on her divorce from him — and this, though vested in terms in the trustee in fee, because it is a special trust, and either death or divorce renders its continuance unnecessary, 7 P. F. Smith 354. 98. Pennsylvania. In an action of dower, unde nihil habet, brought by the wife against the husband's vendee in a farm PROPERTY. 199 sold during the husband's lifetime, where there was proof that the proper forum for an application for divorce was in Pennsylvania, where the parties resided after marriage, and from which the wife never removed, and yet the husband had obtained a divorce in Tennessee, the court sustained the action of dower. The judge cited 5 P. F. S. 375 to the effect, that the in- jured party in the marriage relation should have sought redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicile of both. 12 P. F. Smith 308. 99. Pennsylvania. At common law, adultery was no bar to dower. The law was changed in this respect by 13 Edw. I., c. 34, where it was provided, that where elopement and adultery were combined, the wife should be forever barred of dower. lb. 100. Illinois. "Where real estate, held by a husband under contract of purchase, is upon a decree of divorce, set apart as alimony to his wife, a subsequent assignment of the con- tract by the husband, and a conveyance from the original vendor to the assignee, will pass no better title than the husband had to the wife's portion of the estate, and equity will compel the grantee to convey it to her. 38 111. 9. 101. Illinois. If, in the allotment of land for alimony, it be decreed, that certain incumbrances upon the land shall rest exclusively upon the portion retained by the husband and the wife, to protect her interest, and she discharges a portion of that incumbrance, she will thereby have a lien on the husband's portion, and equity will decree that she be re- paid out of the same. Ih. 102. Wisconsin. A circuit court, on granting a divorce from the bond of matrimony, may, in regulating the divi- sion of the estate, real and personal, between the parties so as to do equity between them, divest the husband's title to real estate and transfer the property to the wife, to be held in fee simple. (One judge dissenting.) ^0 "Wis. 586. 103. Georgia. Evidence of the transfer of the husband's property before the separation of the parties is admissible in a suit for divorce. The antenuptial settlement is admissi- 200 LAW OP DIVORCE. ble also to show the source of the property contained in the • schedule. 36 Geo. 286. 104. California. After the death of a husband, against whom a decree of divorce has been granted, a supplemental decree, for the purpose of partitioning the common property, will not affect the interests of the husband's heirs, unless a revivor is had as to them. 32 Cal. 493. 105. California. It is in the discretion of the court in a divorce for adultery to award all the common property to the prevailing party. 33 Cal. 558. 106. Georgia. The effect of a verdict in favor of a wife for a divorce a vinculo, and for the recovery of a certain sum, is to vest in her out of her husband's estate the amount found as permanent alimony for her support. 36 Geo. 286. 107. Tennessee. If a wife file a bill for divorce and ali- mony, having a sufficient cause, and is induced by fraudu- lent promises to dismiss her bill, and thereafter the husband executes a conveyance in order to defeat her right to ali- mony, the grantee cognizant of this design, the conveyance is void, and will be set aside as to her. 3 Head 464. 108. Vermont. An administrator cannot maintain a pe- tition for a decree of nullity of his intestate's marriage, where such decree is not necessary to the proper descent or distribution of the estate, 41 Vt. 47. 109. Indiana. An agreement in writing between a hus- band and wife, made, pending her application for a divorce that, one day after the divorce is granted, she will pay him a certain sum for improvements made by him on her lands during coverture, is against public policy, and void. 29 Ind. 139. 110. Illinois. A court of chancery has power, in addi- tion to making a decree for alimony a lien on the lands of a defendant, to enforce the decree by attachment for con- tempt, and if the defendant remain contumacious, defying the court, may also sequestrate his estate, real and personal, as a means of enforcing performance of the decree. 45 111. 167. 111. Iowa. A judgment of a district court, allowing a wife a lien for alimony upon lands of the husband in another county is valid, and a subsequent attaching creditor of the PROPERTY. 201 husband can acquire only a lien upon the land, subject to the lien of the judgment for alimony, although levy is made before a transcript is filed in the county where the land is situated. 26 Iowa 603. 112. Nevada. In an action for desertion and cruelty, where the pleadings contain a clause in regard to the dis- position of the common property, it is error to award the entire property to one of the parties. 4 Nev. 469. , 113. Delaware. On a decree of divorce, the court will inquire into waste committed by the husband on the wife's lands since the petition, and compensate her for it out of the husband's estate. 1 Har. 516. 114. Virginia. By the act of divorce, the right of the wife to her choses in action, not reduced into possession during the coverture, is placed on the same ground as if the husband had then died. 2 Rob. 340. 115. Arkansas. The contract of a married woman for professional services in obtaining a divorce may be enforced upon her express promise to pay after she becomes discovert, without any new or further consideration for the promise. 1 Barb. 267. 116. Arkansas. Money advanced to the husband at the wife's request, in consideration of his making no opposition to the divorce, being for an illegal and immoral considera- tion, cannot be recovered against her on her express promise to pay. lb. 117. Connecticut. "Where a divorce was obtained by col- lusion and illegal agreement, the title of the children to real estate given them is not affected by the collusive agreement, since they were not parties to it. 36 Conn. 177. 118. Illinois. A court of chancery has power, in addition to making a decree for alimony a lien on the lands of a de- fendant, to enforce the decree by attachment for contempt, and if the defendant remain contumacious, may also seques- trate his real and personal property as a means of enforcing performance of the decree. 45 111. 167. 119. Illinois. Where the property of the husband was accumulated by him before marriage, and the wife brought 'no property to him upon the marriage, it would be unjust to 202 LAW OP DIVORCE. decree to her as alimony, after decree of divorce pronounced, a large amount of the husband's property. 46 111. 135. 120. California. Any other court than the one rendering the decree of divorce, if otherwise competent, has the juris- diction to determine the disposition of the community pro- perty. 39 Oal. 157. 121. California. If a decree for a divorce simply be for the cause of adultery, it does not follow that the guilty party would be deprived of his or her interest in the com- munity property. lb. 122. California. "Where a decree of divorce directs an equal division of the common property, the former husband and wife become tenants in common eo nomine in the land theretofore held by them in community. If the wife die intestate, her heir becomes a tenant in common with the title and right of entry of the deceased. 31 Cal. 29. 123. Kentucky. Pendente lite for alimony and divorce a vinculo against her absconding husband, to the extent of the amount of alimony adjudged her, the plaintiff has the right to make other parties, and recover judgments against them for money won by them from her husband by unlawful bet- ting on a horse race. 2 Bush 263. 124. Texas. It is error to deprive a husband of all interest in the community property, even if he could be divested of all title therein. 31 Texas 203. 125. Indiana. The wife owned a farm, upon which the husband planted corn, and sold the growing crop to a phy- sician for medical services. Before it was ripe, the wife obtained a divorce. Held, that the purchaser of the corn was not affected by the divorce. 30 Ind. 262. 126. Indiana. A married woman carried on business in her own name while she was living with her husband whom she had made her agent. Together they executed a pro- missory note, the payee relying upon her for payment. Held, in a suit on the note after the wife had been divorced, she was not personally liable thereon. 31 Ind. 111. 127. Indiana. An attachment was levied against the property of an absconding debtor. His wife claimed $300 exemption. Pending the attachment, the wife obtained a PROPERTY. 203 divorce and a decree for alimony for herself and children. Held, that her claim still existed. 32 Ind. 382. 128. Texas. In a divorce suit, the service was by publi- cation. The sheriff in his return did not show that the citation was published four successive weeks, but the court took jurisdiction, tried the case, granted the divorce, and rendered judgment for costs. On this judgment the land in suit was sold. Six years later, the court allowed the sheriia" to amend his return, and five years later the court dismissed the divorce suit. Held, that the divorce judgment was void, and the sheriff's sale gave no title. 31 Texas 488. 129. Maine. A woman, after a divorce a vinculo, may maintain an action against her former husband on a promis- sory note given by him to her during coverture for money borrowed of, and belonging to her. 7 Virgin 139. 130. Missouri. After a lapse of twenty years, after the legislature granted a divorce (even admitting such divorce to have been illegal), the court will not require a wife after her second marriage, when she wished to dispose of her separate property, to prevail on her former husband to join in the conveyance. 6 Post 20. 131. Kentucky. A divorce a mensa does not bar curtesy, dower, or distributive right. 7 Bush 53. 132. Kentucky. Divorce destroys the husband's potential right to curtesy. 7 Bush 489. Vide the following sections under their respective divi- sions: — Practice, §§ 75, 96, 143, 149. Evidence, § 109. Decree in another State, %% 95, 98. Position after a Divorce, §§ 1-4, 10, 14, 15, 35, 36, 39. Alimony, §§ 31, 36, 39, 46, 47, 53, 56, 59, 64, 66, 71, 73, 80, 84, 96, 109, 110, 113, 114, 118, 134, 128, 145, 146, 155, 157, 175, 187, 189, 191, 193, 301, 307, 216, 217, 320, S29, 340, 245, 347, 358, 354, 360, 364, 868, 377, 392, 294, 395, 300, 313, 315, 316, 334, 331. 204 LAW OF DIVORCE. INDEX OF SECTIONS. Alabama, 9, 24-36, 30, 31. California, 32, 51, 53. Connecticut, 17. Delaware, 8. Illinois, 13, 46, 56. Indiana, 11, 16, 30, 39, 45. Iowa, 36-39. Kentucky, 43, 54. Maryland, 33. Michigan, 49. Mississippi, 50. Missouri, 27. New Jersey, 14, 15. New York, 1-6, 10, 12, 18, 21, 34, 35, 53. Ohio, 17, 43, 44. Pennsylvania, 33. South Carolina, 7, 23. Texas, 40, 41. Vermont, 47, 48. 1. New York. At common law in England the father • has, in the first instance, the custody and control of all chil- dren, without regard to sex and with slight qualification to age ; but the rule has been modified in England by the re- fusal of courts to interfere on behalf of a father, when he is unfitted to have charge of the child. The doctrine of a father's right, though weakened, has not been overthrown in this country. 1 Hoffman 497. 2. New York. By the revised statutes of New York, in a suit by a married woman for divorce, the disposition of the children is left to the discretion of the court ; and it may be that, under this statute, the children might be made wards of court, with proper guardians appointed^ and the right of access of the parents to them regulated. lb. 3. New York. "Where the husband was intemperate and treated his. wife and children with violence and cruelty, and had attempted by threats to make her dispose of her property to his use, it was ordered, pending a suit for divorce on the wife's petition, that she should have the exclusive custody of the children, and that the husband should not be per- mitted to visit them, except under the direction of one of the masters of the court. 2 John. Ch. 141. 4. New York. On a bill by the wife for a divorce a mensa for cruelty, the court made the separation perpetual, subject to be set aside, on the joint and voluntary applica- CUSTODY OF CHILDREN. 205 tion of the parties; and the wife, under the circumstances, was allowed to retain the custody of her infant son, subject to future direction by the court. 4 John. Ch. 187. 5. New York. Where a wife cohabits voluntarily with her husband pending a bill by her for divorce a mensa, and is in no danger from personal violence, the court will not grant an order to give her the custody of their children. 2 Paige Ch. 9. 6. New York. Where the husband had been guilty of cruelty and harshness towards his wife, sufficient to justify her in living apart from him, though not sufficient to au- thorize a decree of separation, the court allowed her the custody of her infant child of a very tender age. 8 Paige Ch. 47. 7. South Carolina. Where a husband drove his wife from his house, the court, upon granting her separate main- tenance, ordered, that she be allowed the care and custody of her infant child. 4 Desau 33. 8. Delaware. In Delaware, upon a decree of divorce foi^ the adultery of the husband, the court gave the wife the custody of her daughters, and made her an annual allow- ance for their support. 2 Harring. 142. 9. Alabama. Upon a decree of divorce, where the bill filed invoked the jurisdiction of the chancellor to dispose of the minor children, it is proper for the court to determine which parent shall be entrusted with the custody of the minor children. 10 Ala. 561. 10. New York. An agreement between the parties as to the custody of their children, made ]previou8 to a decree for a divorce, will not have a controlling influence upon the decision of the court with respect to the care and custody of such children. 1 Barb. Ch. 639. 11. Indiana. Where the parties are living separate, it is not sufficient ground for decreeing the custody of their minor children to their mother, that the husband is a bad manager and provider, there being no evidence against his moral cha- racter. 1 Smith 168. 12. New York. Where a divorce a mensa was granted on account of the abandonment of the wife by the husband, the custody of their two daughters was given to the wife. 206 LAW OF DIVORCE. and the husband was compelled to give bonds, securing to them and her their allowance and alimony. 4 Sandf. Ch. 493. 13. Illinois. Where a separation is decreed, the father has the legal right to the possession of the child, unless he has waived it or lost it by his misconduct, l^ext to him the mother is entitled to that possession. If the separation were caused by the misconduct of the father, the court will order the child into the charge of the mother, but the father must have access to it on reasonable occasions, and any attempt to alienate its affections from either parent is a con- tempt of the court. In whosesoever custody the children may be placed, they become the wards of the court, and cannot be removed from its jurisdiction. 11 111, 43. 14. Ifew Jersey. Where parties were living apart, and the mother had the custody of three children, two boys aged three and five years, and a girl of thirteen months, it was held, on a habeas corpus, that the elder son should be given to the father, and that the other two should remain with the mother. 2 K J. 286. 15. New Jersey. Generally the father of legitimate children is entitled to their custody in preference to the mother, where they are living apart ; if the children are of the age of discretion they may choose, when brought up on habeas corpus, with which parent they may live ; where the child is of tender years, and in the custody of the father, it will not be taken from him, no matter how gross his con- duct may be ; when the mother has the custody of a young child, the court uses itfe discretion as to the future custodv. lb. ^ 16. Indiana. Before the revised statute of Indiana, p. 606, in cases where the parties were separated, without divorce, the husband was entitled to the custody of the children of the marriage, unless of bad moral character. 1 Carter 171. 17. Connecticut. The parties were divorced on the wife's application, and the custody and control of their minor children were awarded to her. In an action of book debt brought against the father for the entire support and educa- tion of such children, furnished by her, after such decree CUSTODY OF CHILDREN. 207 had been granted, it was held that she could not recover. (Two judges dissenting.) 22 Conn. 411. 18. New York. Where a wife has, without good cause, separated from her husband, she will not be entitled to the custody of their child, even though it be less than six months old, unless the health of the child imperatively de- mand the care of the mother. 24 Barb. 521. 19. Ohio. A husband, claiming by habeas corpus the cus- tody of an infant child from his wife, who is living separate from him, may introduce evidence Of her incompetency for the charge, as well after as before the introduction of evi- dence by her to show her fitness. 4 Ohio 615. 20. Indiana. On passing a decree of divorce, the court awarded the custody of an infant son to the mother. She afterwards married, and being with her second husband, about to remove from the State, the father petitioned to have the custody of the child awarded to him, to which the mother objected. From the testimony heard, it appeared that both parties were equally able to take care of the child, and equally fit in regard to morals. The court below decided in favor of the mother, and the decision was aflirmed. 8 Ind. 152. 21. New York. When a separation takes place, without any fault on the husband's part, and he is a proper person in other respects, the custody of the children will be decreed him. 27 Barb. 9. 22. Pennsylvania. A mother deserted her husband before the birth of her child, for which desertion, a divorce was de- creed. The wife afterwards retained the child, and brought suit to recover of the father compensation for its mainte- nance. Held, that she was not entitled to recover. 9 Casey 50. 23. South Carolina. The claim of the husband to the custody of the children will be preferred, unless sufficient reason be shown against it. 11 Rich. Law 326. . 24. Alabama. It is not competent for the probate court, on habeas corpus, sued out by the mother of an infant child, to take it from the custody of the father, when no improper restraint of the infant is established. 31 Ala. 425. 25. Alabama. Although the admissions of the husband cannot occasion a decree of divorce in favor of the wife, yet 208 LAtf OF DIVORCK. they are competent evidence against him on the question of the custody of the children. lb. 479. 26. Alabama. The chancery court has jurisdictioii, and may give the children to either party as the circumstances of the case may require, even if the wife fail in her applica- tion for a divorce, yet if the evidence shows the unfitness of the husband to have charge of the children, the court may give the charge of them to the wife; but the order should be temporary and subject to future modification. lb. 27. Missouri. It does not follow that the party prevail- ing shall, in all cases, have care of the children ; the court, in its discretion, consulting the best interests of the chil- dren, may assign the custody of them to the other parent. 28 Mis. 91. 28. New York. In the case of a separation or divorce, while the obligation to support a child continues to rest, as a general rule, upon the husband, it is materially affected by the facts of each particular case, and should be regulated by the terms of the decree. To make the father liable for its support while the child is in the custody of the mother, who is in receipt of alimony, there must be special circum- stances averred in the complaint, or appearing in the evi- dence from which the obligation must arise. The award of the custody of the child to the mother upon obtaining a decree of divorce, must be presumed to carry with it the obligation to support it, in the absence of evidence to the contrary. In such case the husband is not liable without a previous •demand and refusal, or an abandonment of the child. 29 Barb. 124. 29. Indiana. A decree as to the custody of children ren- dered when the divorce was granted, cannot be changed or modified, although it seems it may be enforced by a court other than the one in which it was rendered, upon an application by habeas corpus to obtain possession of the children. 13 Ind. 523. 30. Alabama. To entitle a wife, separated from her hus- band, to the custody of her children, it is not enough to show that he is occasionally drunk, though not so as to in- terfere with his business. In this casfe the boy was five and the girl three years old ; the wife had left her husband with- CUSTODY OF CHILDREN. 209 out justifiable cause, and, though he was intemperate, the court thought he would not necessarily contaminate the children or render them unsafe under his care, and so re- fused to take them from him. 34 Ala. 516. 31. Alabama. In Alabama, the chancellor has control over the children, only in the case of a voluntary separation ; and to be voluntary, it must be by mutual agreement. lb. 32. California. The interest of the child is the leading, if not the paramount consideration, in determining in whose custody a child shall be placed after divorce. In this case the divorce was on the ground of one attempt on the part of the husband to shoot the wife, provoked by excessive and unfounded jealousy; in all other respects, the conduct of both was blameless ; the mother had remarried. It was de- creed that a girl of seven years should be placed in the mother's custody, with liberty to the father to see it at con- venient times. 14 Cal. 512. 83. Maryland. . After a decree a mensa, the custody of a daughter of tender years was confided to the mother, she appearing to be a suitable person to have the charge of it. 16 Md. 213. 34. ITew York. The statute of 1860, making the hus- band and wife joint guardians of their children, gave no rights to the wife, while living in voluntary separation from her husband. 35 Barb. 85. 35. ISew York. As between parents living in voluntary separation, the court looks at the character of the parents, and their respective merits with regard to the' separation, and also especially to the welfare of the children. The actual custody of the children raises no presumption as to whom they should be intrusted. The court leans in favor of the father. lb. 36. Iowa. In determining what is "right and proper" under the code, in regard to the custody of children in di- vorce cases, it is the duty of the court to observe the legal rights of the parents, the child, and the community. 4 Greene 216. 37. Iowa. The father's right to the possession, care, and control of his minor child is paramount, if the child be of such an age that it can without injury or violence to nature, 14 210 LAW OF DIVORCE, be withdrawn from maternal nursing. The father's consent, made in court, to the wife's possession of the child, does 'not prevent his subsequent re-assertion of his own paramount right. lb. 38. Iowa. A minor is a ward in chancery, subject to the sound discretionary power of the court, but the court will not exercise its discretion to change the regular course of the law, unless the parent labors under a moral or natural disability, disqualifying him from performing the diities of his natural and legal relation. lb. 39. Iowa. The jurisdiction of the court over parties di- vorced, having been duly acquired, continues as long as the first judgment remains unexecuted ; and the court has power to modify an. order relating to the custody of children; not- withstanding the parties may have become residents of another State since the judgment. 7 "With. 423. 40. Texas. In a suit for divorce, the court has authority to remove the children of the parties from the guardianship of the parents, and appoint their grandfather guardian. 21 Texas 58. 41. Texas. In such suit, the court may not only appoint a trustee to take charge of the community property of the husband and wife, and apply the proceeds to the support of children, but may also divide their separate property in cases of necessity, or the whole, both separate and com- munity, may be kept together for the benefit of children. lb. 42. Kentucky. Where parties are divorced, although primd facie, the abstract right and duty of the father are superior to those of the mother ; yet the court, dissolving the union, should confide the care and custody of their in- fant child to the parent, most trustworthy and capable; and if neither of them shall be worthy of the trust, the interest of the child and of the public may authorize a transfer of the custody to a stranger. 1 Duvall 167. 48. Ohio. Where a court of common pleas, on rendering a decree of divorce, further decree the "custody, care, and control" of the minor children to one of the parties; a pro- bate court, while such decree remains in force, cannot, as between the parties to the decree, legally interfere with the CUSTODY OF CHILDREN. 211 custody so decreed, either by habeas corpus or letters of guar- dianship. 15 Ohio St. 427. 44. Ohio. The jurisdiction of the Court of Common Pleas over the subject of the custody of children in divorce cases is a continuing jurisdiction; and may, on proper application, be invoked to modify orders relating to the custody of chil- dren, whenever the character and circumstances of the case, or of the parties, require it. lb. 45. Indiana. The amount allowed in a judgment for divorce for the support of children, is subject to subsequent modification. 25 Ind. 303. 46. Illinois. There is no error in requiring the husband to maintain a minor child committed to the mother's cus- tody, after a divorce obtained on account of his misconduct. 35 111. 109. 47. Vermont. The court has jurisdiction to make a fur- ther decree as to the care and maintenance of children, not only where the decree of alimony is for an annual allow- ance to be paid from year to year, but also where the decree is for a settled sum payable at the time of the divorce. 38 Vt. 248. 48. Vermont. Where, by a decree of divorce, the chil- dren are given to the care and custody of the wife, this will not discharge the husband from his natural obligation as their father to contribute reasonably to their support. lb. 49. Michigan. No order can be made for the support of a daughter, who is of age, although an invalid. 15 Mich. 184. 50. Mississippi. If the Chancery Court, in decreeing a divorce, fail to make an order for the custody of a child, any other court before which the right to its custody may be litigated, may regard the mere legal right of the father at an end, and make such disposition of the child as may appear equitable and just. 39 Miss. 423. • 51. California! An order for alimony and for the custody of the children pendente lite, can only be made by the court in which the action for divorce is pending. 35 Cal. 688. ' 52. Illinois. A decree of divorce, giving the custody of the children to the mother because of the unfitness of the father, and allowing a sum in gross as her alimony, does not 212 LAW OP DIVOECB. impair the obligation of the father to support them. He is ' only hound to provide support according to the age, ability and circumstances of his children and his own means. He will not be charged with their education, where a free school is accessible to them. In making such estimate, the chil- dren's earnings will be considered and deducted, as he will not be required to support them in idleness. 47 111. 290. , 53. New York. Where the temporary custody of a child pendente lite for a divorce, is given to the mother, the privi- lege should not be made an instrument of possible injustice to the father. Therefore the father, on sufficient cause shown, may require security from the mother that the child be kept within the jurisdiction of the court. 15 How. Pract. 167. 54. Kentucky. As a general rule, the father is entitled to the custody of his infant child, but the chancellor may bestow the custody on the mother in preference to the father, when, from their relative habits or other circum- stances, it shall appear more beneficial to the child to do so. 1 Bush. 15. 55. Illinois. A court of chancery having decreed the divorce, has jurisdiction to entertain a petition of the wife asking for provision for the future maintenance of the chil- dren. But where such petition asks for repayment by the husband to the wife for her expenditures in the support of the children since the divorce, the claim in that regard must be confined to the five years next preceding the commence- ment of the suit. 53 111. 445. Vide the following sections under their respective divi- sions: — Cruelty, § 130. Jurisdiction, § 57. Practice, §§ 17, 148. Position after Divorce, §§ 5, 11, 15. Alimony, %% 119,»133, 308. DECREES GRANTED IN OTHER STATES. 213 Mttut^ (^rantetr in otbtx %Uit^. INDEX or 8E0TIOKS. Alabama, 13, 13, 18, 39. Kentucky, 15. Maine, 7, 8. Massachusetts, 4-6, 16, 33, 34, 36, 37, 36. North Carolina, 30, 31. New Hampshire, 33. New Jersey, 88. New York, 1, 3, 10, 11, 19, 35, 33, 33. Ohio, 3, 37. Pennsylyania, 34, 35. Rhode Island, 17. South Carolina, 9. Wisconsin, 14. 1. E'ew York. If the wife of a citizen of Kew Tork leave her husband for the express purpose of obtaining a divorce in another State, and such divorce is decreed on grounds not authorizing it in New York, with alimony, she cannot support an action upon the decree in New York. 1 Johns. 424. 2. Ohio. A divorce granted in Indiana precludes an appli- cation for divorce in Ohio. 7 Ham. (part 2d) 238. 3. New York. Whether a divorce of persons domiciled in New York, decreed in another State, where such persons were married, is valid in New York, — vide 13 Johns. 192 ; 16 lb. 121. 4. Massachusetts. The effects of a divorce made in a for-, eign State, which is recognized in Massachusetts as valid, are the same as if it were decreed there. 10 Mass. 260. 5. Massachusetts. Decrees of divorce of foreign tribu- nals, where the parties are not domiciled, for offences not committed there, are not valid in the State where the par^ ties are domiciled. lb. 6. Massachusetts. If a citizen of Massachusetts remove to another State to obtain a divorce a vinculo, on a ground which would not, in Massachusetts, support a decree, and then returns, the decree by him so obtained is of no effect. lb. 7. Maine. "Where a husband deserted his wife in Maine and went to North Carolina, and she removed to Rhode 214 LAW OF DIVOECB. Island, after which he committed adultery in North Caro- lina, for which cause she was divorced in Rhode Island, the divorce was valid, and the wife was entitled to dower in Maine, as if the parties had remained there, and the divorce been decreed there. 9 Greenl. 140. 8. Maine. Divorces pronounced according to the law of one jurisdiction and the new relations thereupon formed, should be recognized, in the absence of all fraud, as opera- tive and binding everywhere. But this applies to the decree only so far as it dissolves the marriage. It does not proceed further, so as to order the payment of money by the hus- band, lb. 9. South Carolina. "Where a man, married in Connecticut, had resided many years in South Carolina, it was held in the latter State, that a divorce for desertion obtained in Connec- ticut dissolved the marriage tie for all purposes, everywhere. 2 Strobh. Eq. 174. 10. ~Eew Yoi'k. A marriage took place in N"ew York, where the parties were domiciled. On the application of the wife, a separation from bed and board forever was de- creed. Subsequently the husband went to Michigan, and applied for a divorce, alleging desertion on the part of his wife. The proceedings were by publication, and the divorce was obtained without the wife's knowledge. The husband then married another woman in Albany, New York. Held, that the divorce in Michigan was invalid ; and on applica- tion of the wife, a divorce was granted for adultery. 12 Barb. 640. 11. New York. It seems that a divorce granted by the courts of a sister State, after appearance, or, if the parties have their domicile there, after personal service, there being no fraud or collusion, would be conclusive here. lb. 12. Alabama. A decree of divorce, regularly rendered by the proper tribunal in this State, is not invalid, because the laws of the State in which the marriage was celebrated do not allow a divorce a vinculo. 19 Ala. 499. 13. Alabama. A decree for maintenance to the wife, ren- dered by the Court of Chancery in South Carolina, where no divorce is by law allowed, to continue until reconciliation or death, cannot be enforced in Alabama, after the husband DECREES GRANTED IN OTHER STATES. 215 ha8 obtained a decree of divorce in its courts, except for the amount due at the date of the decree of divorce. 20 Ala. 629. 14. "Wisconsin. An action of debt on a decree for ali- mony in another State cannot be maintained, it being in its nature temporary and distinct, liable to be modified or an- nulled according to circumstances. The court making the decree can alone enforce the performance of it in the same judicial capacity in which it was pronounced. 1 Chand. 280. 15. Kentucky. After a decree of divorce in Kentucky, in favor of the husband, the wife brought a bill for alimony in Ohio. Held, that a decree for alimony in the Ohio court, having jurisdiction of the subject-matter, was a valid decree and enforceable in Kentucky. 15 B. Mon. 364. 16. Massachusetts. A decree obtained by the wife in another State, upon proceedings instituted two months after the removal from this State (her husband continuing to re- side here, and not being served with process in that State, nor appearing in the proceedings) for a cause which occurred here, and which would not authorize a divorce by the laws of this State, is of no effect in this State. 2 Gray 367. 17. Ehode Island. A decree of divorce, granted by the courts of a State having jurisdiction over the petitioning party as a citizen of the State, is, by art. 4, § 1, of the Con- stitution of the United States, valid in all the States. 4 E. I. 87. 18. Alabama. The general principle that judgments and decrees, when set up in a different State from that in which they were rendered, may be avoided, when the court had no jurisdiction of the defendant's person, and there was no ap- pearance, does not apply to decrees of divorce rendered on publication against non-resident defendants, the validity of which depends on the statutes of the State in which they were rendered,, and results necessarily from the existence of the jurisdiction. 28 Ala. 12. 19. New York. A decree of divorce obtained in a sister State, though confessedly obtained illegally, cannot, without any allegation of any injurious consequences flowing from it to the plaintiff, or of any attempts to enforce it in any way 216 LAW OP DIVOBOE. in the courts of this State, or of any assertion of any rights under it here, be made the foundation of any action here, simply to declare it void. 28 Barb. 23. 21. United States. If a husband fraudulently have, in Wisconsin, obtained a divorce a vinculo., he will not thereby be relieved from his liability under a decree against him in New York for alimony. 21 How. TJ. S. 582. 22. Massachusetts. A divorce a vinculo, obtained in an- other State between parties residing in this State, for a cause not sufficient in this State, and at the suit of a party who went into that State for the purpose of obtaining the divorce, is void in this State, even if the other party appeared and answered to that suit. 6 Gray 157. 23. ]!^ew Hampshire. A divorce decreed in another State, under a statute authorizing a decree upon the application of a bond fide resident, is invalid in this State, if it appear that at the time of the application and of the decree, both parties were domiciled here. The question of residence is open to inquiry in the courts of this State, notwithstanding the record of the proceedings is in due form and properly authenticated. 39 IS. Hamp. 20. 24. Massachusetts. A decree of divorce a vinculo between parties residing in this State, obtained in another State, for a cause which occurred here, and which was not a legal cause of divorce here, is void in this State, and cannot be set up in defence to a libel for divorce filed by the same party in this State. 13 G-ray 209. 25. ISTew York. "Where a resident of lifew York, having a wife who also resides here, goes to another State, and in a suit brought there, obtains a decree of divorce, without any service upon, or notice to her, or any appearance by her, such decree is void. 31 Barb. 69. 26. Massachusetts. It is no defence to a wife's libel for divorce, to prove that a divorce has already been granted in another State in favor of the husband, if it be proved, that he was not a citizen of the State in which the divorce was granted, but went there from this State, in which he was a citizen, for the purpose of obtaining it, and did obtain it fraudulently. In such case, the decree of, the court granting DECEEES GRANTED IN OTHER STATES. 217 the divorce is not conclusive evidence of his citizenship. 4 Allen 134. 27. Massachusetts. A decree of divorce, duly obtained by the husband in' the court of another State, is conclusive upon the wife, if the husband has his domicile in such State, and nothing appears to show that the wife has gained a dif- ferent domicile, except the mere fact that she removed there- from and resided in this commonwealth separate from her husband at the time the libel was filed, and on a libel for divorce, brought by her in this State, she cannot offer evi- dence that he obtained the decree of divorce there by fraud, and on facts which would not entitle him to a divorce here. 11 Allen 196. 28. New Jersey. When it appears, by the record of di- vorce proceedings in Indiaha, that the court had jurisdic- tion both of the parties and of the subject-matter, that the defendant appeared by counsel and has received alimony therefrom, she will not now be permitted to impugn the decree on the ground that it was fraudulently obtained. 2 McCarter 146. 29. Alabama. A statutory prohibition of subsequent marriage by the guilty defendant in a divorcp case has no extraterritorial operation, and does not affect the validity of a subsequent marriage in another State. 40 Ala. 301. 30. North Carolina. The Constitution of the United States in providing tha,t full faith and credit shall be given to the judicial proceedings of one State in the courts of another, intended only to render the record of a suit inter partes conclusive, not to enable a State to assume jurisdic- tion of persons without her boundaries, and dispense with the service of process. 1 Dev. & Bat. Eq. 578. 31. North Carolina. "Where a marriage was solemnized in South Carolina by parties resident there, and the parties afterwards acquired a domicile in Tennessee, from whence the wife removed to North Carolina; it was held, that a decree of divorce in Tennessee upon the petition of the husband, exhibited six years after the removal of the wife to this State, and without personal service upon her, was a nullity. lb. 218 LAW OF DIVORCE. 32. l^ew York. "When a question arises here as to the effect in ISaw York of a decree of divorce in Indiana as evidence, it is exclusively a question as to the jurisdiction of the Indiana court to make the decree. In determining that question in the second action, the court has nothing to do v(fith any allegations of fraud in connection with the Indiana decree. 55 Barb. 269. 33. ISTew York. Even if this court could, within a proper time, declare a judgment for divorce rendered in Illinois void, no such action should be taken after the judgment has become absolute, and the time for appealing has expired, so, that it cannot be reversed in that State. The judgment is then final, and the rights of the parties under it are perfect, and the court should not interfere with it. 58 Barb. 425. 34. Pennsylvania. Where neither the person nor the property of the wife be within the power of a court in another State, no extraterritorial effect can be imputed to its judgment, unless a proceeding in divorce be an exception to the general rule. 5 P. F. Smith 375. 35. Pennsylvania. The injured party in the marriage relation must seek redress in the forum of the defendant, unless where such defendant has removed from Avhat was before the common domicile of both. When it is once de- termined that a court has not jurisdiction, notice or even process duly served cannot give vitality to the judgment it may pronounce. It is null and void, at least, as to any extraterritorial effect. 12 P. F. Smith 308. 36. Massachusetts. A special statute of the State of Maine, authorizing the Supreme Judicial Court of that State, at its discretion, to divorce parties named, is unconstitutional. 103 Mass. 572. 37. Ohio. To a petition of the wife for divorce and alimony, the husband set up a decree of divorce obtained by him in another State, where there was no jurisdiction of the person of the wife except by constructive service, and of which proceeding she had no actual notice. Held, that the domicile of the wife remained unaffected by the desertion of the husband, and that the decree of divorce was no defence to the petition for alimony. 19 Ohio St. 502. POSITION OF THE PARTIES AFTER A DIVORCE. 219 Vide the following sections under their respective divi- sions: — Jurisdiction, §| 74, 118. Property, |§ 95, 98. Alimony, §§ 162, 190. IJositiott oi tfte parties after a Hiborce. INDEX or SECTIONS. Alabama, 5, 8, 33, 31, 34. Arkansas, 85. California, 34, 36. Connecticut, 15. Illinois, 27. Indiana, 18. Kentucky, 1, 9. Louisiana, 35, 29. Massachusetts, 2, 80. Missouri, 4, 17. Nortli Carolina, 38, 39. New York, 10-13, 16, 30, 31, 26, 32, 33 Pennsylvania, 6, 7, 19, 23, 28. Tennessee, 37. Vermont, 3. Wisconsin, 14. 1. Kentucky. Under a Kentucky statute, a wife, sepa- rated by a decree of alimony, may make binding contracts. 5 J. J. Marsh 689. 2. Massachusetts. A wife, divorced a mensa, may sue or be sued as a feme sole, for property acquired or debts con- tracted by her, subsequent to her divorce. 6 Pick. 461. 3. Vermont. Lease by the husband of lands held in right of his wife cannot enure against the wife after a divorce a vinndo, as evidence of a lessee's right of possession, but only of his right of entry for emblements. 1 Tyler 409. 4. Missouri. After a decree of alimony, the husband is not chargeable for debts contracted by the wife. 2 Mis. 69. 5. Alabama. Upon a libel filed for a divorce, where a clause is inserted, invoking the jurisdiction of the chancellor to dispose of the minor children, it is proper for the court, after decreeing a divorce a vinculo, to proceed to determine which parent shall be entrusted with the custody of the minor children. 10 Ala. 561. 6. Pennsylvania. The court can vacate a decree of divorce entered at a previous term, where it was obtained by fraud 220 LAW OF DIVORCE. on the court, although a marriage had been contracted sub- sequently on the faith of such decree with a party thereto, and issue born. The order to vacate would be only erroneous and unimpeachable after the expiration of a period for re- versing it by appeal. 2 Jones 328. 7. Pennsylvania. After a decree of divorce a mensa, the mere offer of the husband to receive the wife and cohabit with her again, is not in all cases a cause of suspending the decree. 2 Dall. 128. 8. Alabama. A marriage in Alabama of parties before divorced in Georgia is not therefore necessarily void. 13 Ala. 570. 9. Kentucky. A marriage by a party divorced in Ken- tucky under the act of 1809, within two years after the ren- dition of the decree of divorce, is invalid. 8 B. Mon. 231. 10. iN'ew York. After a decree of separation obtained by the wife, the court can protect her in the enjoyment of the fruits of her industry, and such property as she may derive by inheritance or otherwise, subsequent to the decree. 2 Barb. Sup. Ct. 377. 11. New York. An agreement between the parties as to the custody of their children, made previous to a decree for a divorce, will not have a controlling influence upon the decision of the court with respect to the care and custody of such children. 1 Barb. Ch. 639. 12. New York. A suit for divorce on the ground of adul- tery, is terminated by a final decree with or without costs, and containing no reservation of a right to the wife to apply for alimony ; and the wife, after her remarriage to another husband, in conjunction with such second husband, may apply to the court by petition for an order giving her the care and custody of a child by the first marriage. lb. 13. New York. After a divorce for adultery, the mar- riage contract is at an end, and if the guilty party marries again, it is not bigamy. But such second marriage is pro- hibited in New York, and the guilty party so marrying is punishable for a misdemeanor. 6 Barb. Sup. Ct. 117. 14. Wisconsin. A divorce a mensa et thoro does not de- stroy the relation of marriage, so as to enable the wife thus divorced to maintain an action against her husband. Suing POSITION OP THE PARTIES AFTER A DIVORCE. 221 by prochein ami does not obviate the difficulty. 1 Chand. 280. 15. Connecticut. The parties were divorced, and the custody and control of the children were awarded to the wife. In an action of book debt brought against the father for the entire support of such children fuitaished them after the decree, it was hel^, the wife could not recover. 3 Day 37; 22 Conn. 411. 16. Ifew York. A person whose marriage was dissolved in 'New York for adultery, was thereby prohibited from marrying again during the life of the other party. 1 Kernan 228. 17. Missouri. In Missouri, a divorce obtained by the witie must, in law, be considered the same as the death of the husband, and the wife must be looked upon as his widow. 5 Bennett 363. 18. Indiana. By a decree, granting a divorce a vinculo, the rights of the parties, under the law then in force, are fixed, and thenceforth remain unchanged. 6 Ind. 229. 19. Pennsylvania. Where the husband, after a divorce a mensa, desires to do his duty, and the wife unreasonably refuses to join him, she ought to be punished for her obstinacy, by the withdrawal of her separate support. But the hus- band has no absolute right to annul the whole proceeding whenever he pleases, by the mere act of presenting a petition. He cannot force his wife back again into the power that abused her before, by his simple expression of his own will. The courts may annul or suspend the sentence in a proper case, but they are not bound to do so in every case. It is left to their discretion by the very words of the statute. 2 Casey 161. 20. New York. A. obtained a divorce a vinculo in ISTew York on the ground of the adultery of her husband B. By the laws of that State, the party convicted of adultery should not marry again until the other party was actually dead. Subsequently, during the lifetime of A., a marriage took place between B. and another woman C, during the residence of the parties in New York, although the marriage took place in New Jersey. At the time C. knew nothing of the divorce nor of A. Afterwards B. died, leaving large property. His 222 LAW OF DIVORCE. administrator refused to pay the assets over to C, alleging that her marriage was invalid. Upon suit therefor, the court held, that the decree of divorce was an absolute dissolution of the marriage contract as to both parties, and that the dis- ability to marry declared by the statute, attached to B. by way of penalty only within the State of ll^ew York, and did not incapacitate him from contracting a sound and valid marriage in the State of New Jersey, where the same dis- ability did not exist. 2 Blatch. Ct. Ct. 51. . 21. New York. The misconduct of the wife, subsequent to a divorce obtained by her for her husband's adultery, is no violation of any matrimonial duty on her part, as, from the time of such decree, she owes none. 3 Bosw. 661. 22. Alabama. Under the Alabama law, a decree of divorce is not operative until sanctioned by the legislature ; there- fore, before that sanction, the matter may be regarded as still pending, and so the decree may be impeached for fraud. 34 Ala. 455. 23. Pennsylvania. The Court of Common Pleas may vacate a decree of divorce obtained within the year, where there is clear proof of imposition having been practised on the court by the libellant. The death of the libellant in the mean time will not prevent the court from vacating such wrong decree, even though the rights of devisees under the libellant's last will should be aftected thereby. 2 "Wright 241. 24. California. In the absence of statute authority, a court, dissolving the bonds of matrimony, has no power to restrain either party from marrying again. 16 Cal. 378. 25. Louisiana. The wife who is divorced and takes no steps to accept the community, within the legal delays, is presumed to have renounced it. 15 La. An. 416. 26. ifew York. Any judgment of divorce obtained by collusion or fraud should be set aside, not from any regard to the parties concerned, but from motives of public policy. "Where the divorce was acquiesced in for several years, and the plaintiff has again been married, some better reason than the mere gratification of personal feeling, or the desire to obtain more money from the plaintiff, should be made clearly to appear, before the court would be warranted in granting POSITION OP THE PARTIES AFTER A DIVORCE. 223 such application. No reason of public policy should suffice, where both the parties have for three years acquiesced in the judgment, and an innocent person has become involved by marriage. 41 Barb. 139. 27. Illinois. Where a divorce has been granted, after default taken, it has been held improper to set the default aside,, since the party may have been married in the mean time. 30 111. 180, 28. Pennsylvania. After a decree of divorce for desertion, the second marriage of the wife with a man who had adul- terous connection with her, during her first marriage, is legal. It is only invalid, where the divorce was decreed for adul- tery, and where the second husband had been the particeps criminis. 6 Wright 198. 29. Louisiana. Although an acknowledgment by the de- fendant of the truth of the facts alleged is insufficient to support the demand for a divorce, yet a judgment solemnly rendered upon such evidence, and acquiesced in for many years, must have its legal effects, until regularly annulled. 18 La. An. 49. 30. Massachusetts. A woman from whom a divorce has been obtained for adultery, may, in the discretion of the court, under St. 1864, c. 216, have leave to marry again, simply upon proof, that since the divorce she has main- tained a good character, and is a fit person to marry. 10 Allen 276. 31. Alabama. A provision in the law of another State, prohibiting the guilty party from marrying again, does not affect a marriage of the party in this State. 40 Ala. 301. 32. 'S&w York. After a decree was granted for the wife's adultery, upon petition by husband and wife to vacate such decree, upon the husband's oath, that he was then satisfied that his wife was not guilty, an order was granted, and the complainant's bill dismissed. 2 Paige Ch. 385. 33. New York. After a decree for the wife's adultery, and a second marriage by the husband, the court refused to set aside the decree absolutely, on proof that the defendant was out of the State when the subpoena was served upon her ; but it was referred to a master to inquire and report whether the wife had been guilty ; and if s6, whether there 224 LAW OF DIVOKCE. had been condonation ; if not, the decree would be set aside. 4 Paige Ch. 425. 34. Alabama. A statutory prohibition of subsequent marriage by the guilty defendant does not affect the validity of a subsequent marriage in another State. 40 Ala. 401. 35. Arkansas. The contract of the wife for professional services in obtaining a divorce, may be enforced upon her express promise to pay after she becomes discovert, without any new or further consideration for the promise. 1 Barb. 267. 36. California. If a decree for a divorce simply be for the cause of adultery, it does not follow that the guilty party would be deprived of his or her interest in the com- munity property. 39 Cal. 157. 37. Tennessee. After a decree of divorce a vinculo, and the death of one of the parties, there is no statute authoriz- ing a revivor of the cause; it can only be revived by an appeal. 3 Cold. 544. 38. North Carolina. The statute makes it felony for the offending party to marry after a divorce, his or her former wife or husband being alive, and such marriage is void. 6 Jones' Law 569. 39. North Carolina. The administrator of a husband, who had married a woman so offending, could not recover her property given to her during the existence of such unlawful marriage. lb. Vide the following sections under the division of Practice, §§ 77, 86, 87, 100, 111, 118, 133, 177, 181. ALIMONY. 225 ^limong* INDEX OF SECTIONS. Alabama, 76, 128, 139, 160, 310-213, 355-357, 267. Arkansas, 183, 183, 380. California, 239, 808, 337. Connecticut, 59, 63. Georgia, 75, 136, 137, 138, 152, 153, 158, 159, 164, 166-170, 177, 196, 207-209, 266, 304. Florida, 353-254, 305-307. Illinois, 54, 154, 155, 187, 215, 262- 264, 366, 370, 313, 313, 324-326, 340, 34r, Indiana, 55, 56, 112, 129, 171, 184- 186, 300, 314, 339, 361, 268, 269, 281, 382, 296, 310, 311, 319,320, 385. Iowa, 17, 21-23, 127, 316-318, 228, 240, 341, 297, 314, 315, 341. Kentucky, 47-53, 60, 61, 104-107, 120, 121, 124, 162, 236, 227, 258- 260, 295, 309, 331, 332. Louisiana, 198, 237, 278, 279, 323, 338. Maine, 125, 299, 331. Maryland, 39-33, 114-116, 133-136, 145, 147, 157, 184-186, 344. Massactusetts, 58, 123, 149, 156, 265, 286, 336. Michigan, 199, 249, 350, 283, 284, 398. Mississippi, 43-45, 77, 197, 293. Missouri, 64, 161, 178-181, 325, 238. North Carolina, 65, 86, 87, 109, 151, 305, 306, 222, 388-290, 334. New Hampshire, 2, 97, 142, 143, 191, 333 New Jersey, 24-28, 111, 118, 130- 132, 150, 174-176, 231-236, 243, 275—377 291 New York, 1,' 3-20, 83-85, 90-93, 95, 96, 98-103, 108, 110, 119, 165, 173, 173, 302-204, 219-331, 330, 344-348, 351, 287, 301-303, 338, 329. Nevada, 285. Ohio, 66, 79-82, 146, 337, 342, 343. Pennsylvania, 57, 68-73, 117, 148, 188, 189, 273, 345, 346. Rhode Island, 118, 144. South Carolina, 37-43, 62, 192-195. Tennessee, 36, 46, 67, 78, 94, 201, 273, 393, 294. Texas, 123, 135, 140, 330. Virginia, 34, 35, 332. Vermont, 74, 89, 243, 274, 300. Washington Territory, 316-318. Wisconsin, 141, 223, 224, 271, 339. United States, 163, 190. 1. New York. In a suit for a divorce a mensa, a plea de- nying the marriage, but without denying cohabitation or living together, is insufficient in answer to an application for alimony pendente lite. 1 Edw. Ch. 255. 2. l^ew Hampshire. Alimony will not be decreed in New Hampshire, unless the case comes within some of the causes for a divorce. 9 N. Hamp. 309. 3. New York. Pending a bill for a divorce by a wife against her husband, the court will allow a monthly sum to the wife as alimony, and also a reasonable allowance for the . necessary expenses of the suit, to be paid by the husband. 1 John. Ch. 364. 4. Ne.w York. Licentious conduct and misbehavior of 15 226 LAW OF DIVORCE. the wife, if existing prior to the acts of cruelty, for which the court decrees a separation, will, it seems, be a bar to her claim for maintenance. 1 John. Ch. 604. 5. New York. On a petition by the .wife, pending a suit by the husband for divorce, for an allowance for alimony, she must disclose the nature of her defence to the bill, and especially will the petition be denied, where it does not show that the wife stands in need of any allowance. 3 John, Ch. 619. 6. New York. It seems, that after a divorce a vinculo and an allowance of alimony to the wife, it is in the discretion of the court to vary the allowance, when, from change of circumstances, such variation becomes proper. 6 John. Ch. 91. 7. New York. On a bill by the husband for a divorce a vineulo for adultery, the wife, on the final decree, will be allowed a remuneration for her reasonable costs and expenses of the suit, and the arrears of an allowance granted pendente lite up to the time of the final decree. 1 Paige Ch. 83. 8. New York. After a decree of divorce, at the suit of the wife for the adultery of the husband, the court, in allow- ing alimony, will take into consideration the' conduct of the wife during coverture. 1 Paige Ch. 274. 9. New York. Where the wife is defendant, she is enti- tled to aliioaonj pendente lite, unless the court is satisfied that she is altogether in the wrong. 2 Paige Ch. 108. 10. New York. If the wife be defendant in a suit for divorce for adultery, she must, in her petition for alimony, deny on oath the charge of adultery, or show that she has some other valid defence. This too, although he presents affidavits to prove her guilt. 2 Paige Ch. 621. 11. New York. Alimonj, pendente lite, must be allowed more sparingly than that which is assigned to the wife as complainant, as a permanent provision after a decree in her favor. 3 Paige Ch, 267. 12. New York, In fixing alimony, the court will have reference to the nature of the husband's means, the amount of his income, the claims of children or relatives upon him for support, the station of the parties in society, and the ALIMONY. 227 ability of the husband to provide for himself and family by his own exertions. lb. 13. li^ew York. Alimony, 'pendente lite, must be limited to the wife's actual w.ants, until the termination of the suit in her favor establishes the fact that she is entitled to a more liberal allowance. 4 Paige Ch. 643. 14. New York. In a suit for separation, the master, upon a reference to fix a proper allowance for the wife, pendente lite, should make no allowance, if it appear that the husband is entirely destitute of property. 9 Paige Oh. 234. 15. New York. Upon a decree of separation at the suit of the wife, on account of the cruelty of the husband, which was of the most aggravated kind, the alimony of the wife was fixed at $10,000 per annum, the estate of the husband being estimated at nearly a million. 10 Paige Ch. 20. 16. New York. Upon a decree of separation, the court has power to decree a provision for the wife for her life, though it should continue beyond the life of the husband, lb. 17. New York. Iowa. In a suit by the wife for a divorce, alimony is allowed almost as a matter of course, though the circumstances charged in the bill are fully denied. 1 Edw. Ch. 62; 1 Clark 151. 18. New York. It is not a matter of course to allow alimony to the wife to enable her to prosecute a suit for divorce against her husband, and it will not be granted where there is strong reason to believe the action to be groundless. 3 Edw. Ch. 387. 19. New York. In a suit by the husband for divorce for the wife's adultery, she is allowed her temporary alimony to the date of the decree, though the adultery is found against her by the verdict of a jury. 1 Edw. Ch. 317. 20. New York, Upon a bill by the husband for divorce, he cannot excuse himself from furnishing the wife with money to enable her to carry on her defence, on the ground of poverty. 3 Edw, Ch, 194. 21. Iowa, An application for alvaxonj, pendente lite, should be by a petition, a copy of which, with notice of the appli- cation, should be served upon the solicitor of the adverse party. 1 Clark 344. 22. Iowa. In a suit by the wife for separation, after she 228 LAW OF DIVOKOB. had left her husband, and had gone to reside with her father, who had agreed with the husband to support the wife, the court refused alimony. 1 Clark 460. 23. Iowa. In a suit by the wife for a divorce for the impotency of the husband, the court has no power to re- quire the husband to make an allowance to the wife for the expenses of carrying on the suit. lb. 24. New Jersey. Where, upon a decree of divorce, the children are placed under the charge of the mother, an allowance for their maintenance will be such that they may be maintained in a manner corresponding with the condition of the father. An allowance of alimony must be graduq,ted according to the peculiar circumstances of each case. 1 Green Ch. 90. 25. l^ew Jersey. Pending a bill for divorce, the court will make an allowance to the wife, whether the bill be filed by or against her, to be paid by the husband for her support, and for the prosecution of the suit ; but such allowance will be moderate, and may be determined. without a reference to a master. 3 Green Ch. 171. 26. New Jersey. Where children are grown up, it is not proper to make an allowance for them. lb. 27. New Jersey. Alimony may be decreed by the court, without referring the matter to a master, where neither party requests a reference. Saxton 386. 28. New Jersey. The Court of Chancery of New Jersey has jurisdiction to decree alimony, though no decree is made for a divorce. lb. 29. Maryland. In Maryland the Court of Chancery has jurisdiction to determine questions of alimony. 1 Bland 479; 6Har. & J. 485. 30. Maryland. To authorize a decree for alimony for the wife, it must be proved that the separation was caused by the misconduct of the husband, not by her voluntary act ; and evidence or admissions, to show the value of his property, are necessary. 6 Har. & J, 485. 31. Maryland. Alimony is a maintenance afforded to the wife, where the husband refuses to give it, or compels her , to separate from him by his improper conduct. It is not a portion of his real estate to be assigned to her in fee simple, ALIMONY. 229 but a provision for her Bupport to continue during their separate or joint lives. lb. 32. Maryland. "Where, upon a petition for alimony, the wife agreed to accept the settlement proposed in the hus- band's answer, no decree can pass upon the petition to en- force this agreement, but a new petition must be filed. lb. 33. Maryland. Cruel and violent treatment of the wife will support a bill by her for alimony, and if the alimony decreed be not paid, and the husband, under a rule, fail to show cause, a ji. fa. may be issued to collect the same. 1 Bland 101. 34. Virginia. "The Chancery Court of Virginia has juris- diction in cases of alimony, this too, even without a separa- tion, where the conduct of the husband is such as to render it unsafe for her to live with him, or he turns her out of doors without support. 4 Eand. 662. 35. Virginia. But such right does not give her any claim to any specific property of the husband. lb. 36. Tennessee. "While a bill for alimony was pending, the husband was about to remove with, his property, the court ordered sequestration of his property, until he should give security for the performance of the decree which might be pronounced against him. 1 Hay. 347. 37. South Carolina. A widow cannot sustain a suit against the estate of her deceased husband for alimony, especially where she lived separate from him many years, without suing for alimony in his lifetime. 2 Desau. 198. 38. South Carolina. The court will entertain a suit by a deserted wife for separate maintenance. 4 Desau. 33. 39. South Carolina. "Where a husband, in his answer to a bill by his wife for alimony, they living- separate, offered to allow her a certain sum out of the income of property settled upon the marriage, it was held, he could not retract his offer, and the court decreed the allowance offered, though the separation was without sufficient cause. 4 Desau. 94. 40. South Carolina. Where the husband has, by gross cruelty, compelled his wife to leave his house for safety, the court will decree to her a separate maintenance, though the husband offer to receive her back. 4 Desau. 79, 165, 560. 41. South Carolina. Alimony will not be allowed to a 230 LAW OF DIVORCE. Wife on account of the cruelty of her husband, if the vio- lence complained of was induced by a sufficient provocation on her part. 1 Harp. Ch. 144. 42. South Carolina. Alimony may be decreed against a husband having the means of supporting his wife, though he has no visible property or permanent income. 1 Rich. Ch. 282. 43. Mississippi. Where the wife obtains a total divorce, the mere omission to provide in the decree for the alimony of the wife will not aftect her right to have such provision made for her afterwards. 1 8. & M. Ch. 51. 44. Mississippi. And where the divorce was granted the wife in the Circuit Court, the Superior Court of Chancery may afterwards entertain her application for alimony. Ih. 45. Mississippi. A decree of alimony results from a de- cree of divorce, but is not identical with nor a necessary part of it. lb. 46. Tennessee. The court refused to reverse a decree of divorce, giving alimony to the full extent of the husband's remaining property, even to the detriment of his creditors, where the sum allowed fell far short of the amount of prop- erty acquired by him by the marriage, a large part of which he had squandered. Meigs 131. 47. Kentucky. A decree, giving a sum of money to the wife, on a decree of divorce for abandonment by the hus- ,band, was held to be erroneous. Where the husband was possessed of real and personal estate, a decree was entered giving to the wife one-half of the personal property and the use of one-third of the real estate for life, there being no children, and the abandonment being unjustifiable. 2 Litt. 337. 48. Kentucky. A suit for alimony instituted after the husband's death, is not maintainable. 7 Monr. 285. 49. Kentucky, A wife is entitled to alimony for cruel, inhuman and barbarous treatment, though her life is not endangered. 2 J. J. Marsh 522. 50. Kentucky. Alimony should be decreed only during the joint lives of husband and wife, where the divorce is not a vinculo, the court reserving the right to change the allowance from time to time, according to circumstances. 3 Dana 28. ALIMONY. 231 51. Kentucky. Alimony will not be granted where tlie wife has abandoned her husband, unless, without fault on her part, her safety required it. 4 Dana 307. 52. Kentucky. An antenuptial contract, by which each party renounces all right to the property of the other, is no bar to a decree for alimony, but the wife will be entitled to as much as -will maintain her in decency and comfort. 2 B. Monr. 142. 53. Kentucky. The chancellor may modify a decree for alimony, as the circumstances of the parties may require. 2 B. Monr. 258. 54. Illinois. "Where the husband obtained a divorce, and the question of alimony continued to the next term, before which the husband died, and the suit abated as to the ali- mony, a motion was made in the Supreme Court for a sci. fa. to his executors, and a writ of error, etc., and the motion was allowed. 2 Gilm. 72. 65. Indiana. 'No court has original jurisdiction to grant alimony ; it can be given only as incidental to a decree of divorce; and if sufficient alimony be not granted by the court on decreeing a divorce, no other court can supply the deficiency. 1 Blackf. 360. 56. Indiana. A decree for a divorce and for a certain sum as alimony is a lien on the real estate of the husband for alimony. 2 Blackf. 295. 57. Pennsylvania. If the wife become reconciled to her husband after a divorce and order of alimony, the order for alimony expires. 2 Binn. 402. 58. Massachusetts. Where a certain sum was allowed for alimony, after a divorce, the court decreed an execution for the whole amount, to be issued against the husband. 1 Mass. 341. 59. Connecticut. In Connecticut, upon a divorce for the adultery of the husband, the court will grant alimony, not , exceeding one-third part of the husband's estate, and this, although the husband is an inhabitant and resident of another State, and had not been within the State, pendente lite, and had no property in the State, and only appeared by attorney. 5 Day 353. 60. Kentucky. On a divorce for abandonment, where 232 LAW OF DIVORCE. the husband has property, a decree of a gross sum to the wife is erroneous ; but a decree for the use of one-third of his real estate during her life, and half of his personal estate absolutely, would be proper. 2 Litt. 337. 61. Kentucky. Where a divorce has been obtained by the wife, and her conduct is blameless, an allowance, equal to what the law gives her on the death of her husband, is reasonable. 4 Litt. 251. 62. South Carolina. A wife may maintain an action by her next friend against her husband for alimony, decreed her by a court of equity. Const. E,ep. 453. 63. Connecticut. A sum ordered to be paid to the wife upon her divorce from her husband, is recoverable out of his estate. 1 Root 349. 64. Missouri. After a decree of alimony, the husband is not chargeable for debts contracted by the wife. 2 Mis. 69. 65. liforth Carolina. The courts of North Carolina have no power, in a petition for divorce and alimony, to allow alimony pendente lite. 2 Dev. & Bat. 377. 66. Ohio. A decree for alimony, charged upon real estate, binds the estate only from the time of its rendition, and the charge will be subject to the lien of judgments ren- dered, pendente lite. 7 Ham. (Part I.) 161. 67. Tennessee. In Tennessee, a husband, who had been divorced a mensa, and ordered to pay alimony, cannot avoid such payment on account of the subsequent adultery of the wife. 4 Hayw. 75. 68. Pennsylvania. If the parties have been reconciled since their divorce from bed and board, a fresh decree of divorce is necessary to entitle the wife to alimony. 3 Yeates 56. 69. Pennsylvania. An order of alimony upon a decree a mensa et thoro continues in force only until the reconcilia- tion of the parties. When the wife returns to her hus- .band,-and puts herself under his power, even for a brief period, she gives up her claim to arrears of alimony. 3 Binney 202. 70. Pennsylvania. A decree of alimony is final and con- clusive, though subject to be suspended or annulled, in con- sequence of subsequent acts of the husband. 9 S. & R. 191. ALIMONY. 233 71. Pennsylvania. Alimony is not considered the sepa- rate property of the wife, and may be varied by the court according to the husband's circumstances. A married wo- man, divorced and entitled to alimony, accepted a bill of exchange for articles of dress supplied her by the drawer, and made payable at her banker's, to whom her alimony was paid. It was held she did not thereby charge her ali- mony. A distinction was taken between her separate estate and alimony. The former she had a right to charge, but the latter she has not, because it is given for her support and maintenance from year to year. 6 W. & S. 85. 72. Pennsylvania. Upon the death of the wife to whom alimony has been decreed, the arrears of alimony belong to the husband, and the administrator cannot sue for them, ex- cept in a case like the present one, where the husband with- drew himself from the jurisdiction of the court, so that the decree could not be enforced by attachment, and where the administrator sued for the benefit of the wife's creditors. The relief given, however, is purely equitable. lb. 73. Pennsylvania. The refusal by a foreigner, who arrives and becomes domiciled here, to receive his wife who follows him hither, is a virtual turning her out of doors, and the Court of Common Pleas may decree her alimony. 8 "W". & S. 251. 74. Vermont. In Vermont, the Supreme Court has no power to grant temporary alimony pendente lite for a divorce instituted by the wife. 10 Vt. 505. 75. Georgia. Pendente lite, if it appear that the husband is willing to take the wife to his bed and board and treat her well, the court will not grant temporary alimony. Dud- ley 165. 76. Alabama. A wife filed a bill for divorce and alimony, on the ground inter alia of the lunacy of the husband, and thereupon the chancellor decreed alimony. The husband being afterwards restored to sanity, and the bill dismissed, it was held that an action of assumpsit would lie against the husband to recover for the tuition of his children on a contract made by the wife, pending the bill in chancery. 1 Ala. 259. 234 , LAW OF DIVOBCE. 77. Mississippi. Adultery may be set up as a bar to ali- mony. Walker 474. 78. Tennessee. A husband cannot resist a decree for ali- mony, because his creditors may be affected by it, nor in ascertaining the alimony, will the court take an account of his debts. The court will, however, attend to the interest of the creditors, so far as it can consistently. 1 Meigs 131. 79. Ohio. Alimony will be decreed where the parties are both at fault, and cannot live together. "Wright 632. 80. Ohio. Where a wife is at fault, she will yet be allowed alimony from property earned by herself and husband, during coverture. Wright 514. 81. Ohio. In a decree a vinculo, a gross sum may be al- lowed as alimony, and be ordered to be paid in gross or in instalments, in the discretion of the court. 9 Ham. 37. 82. Ohio. Where divorce is not granted, alimony may be allowed. Wright 454. 83. New York. The amount to be allowed the wife for permanent alimony on decreeing a divorce or separation, depends upon the circumstances of each case, e. g. the rank and condition of the parties, the fortune of the husband, his conduct towards the wife, etc. 7 Hill 207. 84. l^ew York. - The Court of Chancery has power, in such cases, to decree that the allowance shall belong to the wife as her separate estate, with the right to dispose, by will, of such part of it as may remain at her deceased lb. 85. E^ew York. The decree may, at its option, direct the allowance to commence from the time of filing the bill, in- stead of the date of the decree. lb. 86. North Carolina. The provision of alimony assigned to a wife, may be altered at any time by the couri during the separation. 6 Iredell 293. 87. North Carolina. Where the alimony assigned consists of specific articles, such as slaves, her right to the use of them continues only until a reconcilement or the death of either party. lb. 89. Vermont. Temporary alimony will not be allowed to the wife, to enable her to prepare a defence to a libel for a divorce preferred by the husband. 19 Vt. 603. 90. New York. Alimony will not be decreed as a matter ALIMONY. • 235 of course on a bill for a separation by a wife against her husband ; to authorize such decree the court must be satis- fied, that it is necessary to enable her to establish her just rights against him. 1 Barb. 64. 91. E'ew York. It will not be decreed, where no ill treat- ment by him of her is shown, and it appears that she left him without just cause, and insists upon living separate from him. lb. 92. New York. Although it is in the discretion of the court to grant an allowance to the wife for alimony and ex- penses in both suits for divorce and desertion, yet the rules which govern them differ in different cases. 1 Barb. 430. 93. !New York. On a bill filed by a wife for a separation, she will not be allowed for aliiliony and expenses, unless it appears that she has good ground for bringing her suit. Ih. 94. Tennessee. In Tennessee, upon a divorce a vinculo, the wife is entitled to a fair portion of her husband's estate for her support; and the amount thus to be appropriated is a matter within the legal discretion of the chancellor, sub- ject to the revision of the Supreme Court. 7 Humph. 440. 95. New York. "Where the wife's libel is bad on demurrer, it is good ground for the court to refuse an application by her for alimony and the expenses of prosecuting the suit. 11 Paige 166. 96. New York. Especially would this application be re- fused, if the husband had settled part of his estate upon his wife in consideration of her agreement to separate from him. The surrender or offer to surrender such settlement on the part of the wife, must be a condition precedent to such application. lb. 97. New Hampshire. Upon a libel by the husband, if there be evidence to show that the wife has a good defence, and that she has no property, the court will order the hus- band to furnish a reasonable sum to her, with which to make her defence ; and the affidavit of the wife is usually received as sufficient evidence. 10 N. Hamp. 272. 98. New York. A decree of divorce for adultery may reserve to the wife, who is the complainant, the right to go before a master and get his report as to a proper allowance to her for alimony. 1 Barb. Ch. 77. 236 LAW OP DIVORCE. 99. New York. "Where a husband alleges bigamy of the wife, which allegation is denied by her, she is entitled to alimony pendente lite, and an allowance from the complainant to enable her to defend the suit. 1 Barb. Ch. 241. 100. New York. Where a husband alleged the adultery of the wife, and the adultery was denied on oath, and the complainant neglected to bring on the issue to be tried, the court directed the husband to pay his wife a specified sum for her travelling expenses and board, where it was shown that her health required her temporary sojourn in a warmer climate, and the husband's income warranted it. 2 Barb. Ch. 72; 4 Sandf. Ch. 373. 101. New York. And even where proof is adduced, that the husband obtained a verdict in an action of crim. con. against the alleged paramour of the wife, it will not prevent the wife obtaining such alimony and allowance pendente lite, such proof not being even presumptive evidence of the fact of adultery against her in the face of her own affidavit. 8 Barb. Ch. 628. 102. New York. An allowance to a wife for temporary support, as well as for her expenses in an action brought by her for a separation, is left to the sound discretion of the court; and in the exercise of that discretion, such allowance will be withheld, when it is apparent that there is no proba- bility that the wife will ultimately succeed. 2 Barb. Ch. 146; 3 Barb. Sup. Ct. 621. 103. New York. Where a wife leaves her husband's house in consequence of his adultery, she is entitled to sup- port from him, and he is liable for necessaries furnished her, although he has offered her board and a separate apartment in his house, and has forbid all persons from trusting her on his account. 1 Sandf. Sup. Ct. 483. 104. Kentucky. On a motion to make an allowance to a wife for her support during the pendency of a suit for ali- mony, the only proper inquiry is into the circumstances of the husband. It is the imperative duty of the court to make a provision, if the wife is not suitably provided, un- less the wife be living in adultery; and evidence on other points will not be admissible on such motion. 8 B. Mon. 50. 105. Kentucky. A decree dismissing a bill for alimony ALIMONY. 237 is no bar to another suit, founded upon subsequently accru- ing causes. 8 B. Mon. 120. 106. Kentucky. Though the law does not require the conduct of the wife to be entirely blameless before she can be entitled to alimony ; yet, if it appear that she is the chief cause of all the dissensions in the family, and pursued towards the husband a systematic course of petty annoy- ances to harass and distract him, the chancellor will refuse her alimony. lb. 107. Kentucky. In Kentucky, eight days' notice of an intended application for an allowance out of the husband's estate, pendente lite, suffices. 8 B. Mon. 128. 108. New York. In granting a decree for a separation under the act of 1824, in li^ew York, in favor of the husband against the wife, the court has no power to direct the hus- band to pay to the wife an allowance for her support. 2 Barb. Ch. 311. 109. North Carolina. Where, on a divorce a mensa, the wife is allowed, in part of alimony, the rent of certain lands, out of which she makes an annual saving, the husband has no right to the amount accumulated out of such saving. 9 Ired. 339. 110. New York. "Where, in a decree for a separation, alimony was granted, and afterwards the court permitted the wife to receive a legacy given to her, which is sufficient to furnish her a reasonable support, the husband should be discharged from his liability for alimony. 4 Barb. Sup. Ct. 295. 111. New Jersey. On a.bill by a wife for support, charg- ing that her husband had abandoned her and refused to provide for her, alimony pendente lite and an allowance for the expenses of the suit were granted. 1 Halst. Ch. 471. 112. Indiana. On a proceeding for divorce by a wife, the court has not power in Indiana to decree alimony in lieu of dower, so as to divest her right of dower. 1 Smith 356. 113. New Jersey. On an application for alimony pendente lite, the nature of the case made by the bill may be consid- ered. A motion on the part of the husband that his wife, the complainant, should file security for costs, was denied. 1 Halst. Ch. 471. 238 LAW OF DIVORCE. 114. Maryland. Upon a bill in equity for divorce and alimony, where the wife alleges that her husband may alien or secrete his property, an injunction may be awarded to prevent him from doing so. 4 Gill. 105. 115. Maryland. The court can compel the husband to pay a proper fee for retaining counsel to aid his wife in her suit. Ih. 116. Maryland. Upon a divorce a mensa, where the hus- band's income was $900, alimony of one-third that amount for the maintenance of an aged wife, who has been com- pelled to abandon her home by his cruelty, is not unreason- able. Ih. 117. Pennsylvania. "When the wife has no separate sup- port, she must be subsisted, and is entitled to her necessary costs pendente lite. She is not obliged to await the result of the suit. The court, from time to time, may make the proper allowance, according to the circumstances. 7 Har- ris 173. 118. Ehode Island. Before the petition for separate maintenance can be rightfully preferred, the relation of cohabitancy must have been already broken up ; it mupt ap- pear that the petitioner is in no fault; that the cause of the separation is the unprovoked wrong of the respondent, and such as to necessitate the separation ; and if it do not equal it in enormity, yet that it is like in kind with the offences that are causes of divorce. There must be property out of which the provision can be made, or at least means or ability for acquiring property, which can be estimated and applied. 1 R. I. 212. 119. New York. "Where a divorce a mensa was granted, on account of the abandonment of the wife by the husband, the custody of their two daughters was given to the wife, and the husband was compelled to give bonds securing to them and her their allowance and alimony. 4 Sandf. Oh. 493. 120. Kentucky. The claim for alimony ceases on the death of the husband, and no decree can afterwards be ren- dered in faVor of the widow for previous support, unless there are debts contracted by her for necessaries. 9 B. Mon. 295. 121. Kentucky. A suit for alimony is not barred by a ALIMONY. 239 legislative divorce obtained during the pendency of the suit. Ih. 122. Massachusetts. Scire facias is a proper process to enforce payment of arrears of alimony. 4 Gush. 518. 123. Texas. Application for alimony should be sustained by the oath of the party or evidence aliunde. Without this the court cannot act advisedly in determining the amount which the husband should contribute to the support of the wife. 3 Texas 168. 124. Kentucky. Where a woman lived with a man as his wife for a number of years, and they afterwards sepa- rated, the woman was not allowed to recover anything for her services, or as alimony from her reputed husband ; but it appearing that her money had been used to buy land, for which the husband held the deed, she was held to be entitled to a decree for her money with interest. 12 B. Mon. 285. 125. Maine. On an affidavit by the respondent of her in- nocence, sickness and destitution, a motion that the libel- lant should advance money to enable her to defend was granted, and he was ordered to advance a certain sum thirty days before the next term of the court. 31 Maine (1 Red.) 591. 126. Georgia. A valid agreement may be made through the intervention of a trustee for an immediate separation, and for a separate allowance to the wife for her support. 8 Geo. 341. 127. Iowa. A petition for alimony is a civil proceeding, and a capias cannot issue thereon in Iowa. 2 Greene 698. 128. Alabama. Where a divorce a vinculo is decreed in favor of the wife, it is error to decree alimony to her, instead of a division of the estate between the parties. 19 Ala. 363. 129. Indiana. In an application by a husband for a di- vorce, which is dismissed, he is not liable for the attorney fees of the wife, without a promise to that effect. 2 Carter Ind. 630. 130. E'ew Jersey. In a suit by a husband for a divorce, for alleged adultery, alimony was allowed the wife pending the suit, on her denial of the adultery under oath. 2 Halst. Oh. 27. 240 LAW OF DIVORCE. 131. New Jersey. The answer of the wife should be put in without oath, the petition for alimony should contain a denial of the adultery, and the petition be under' oath. lb. 132. New Jersey. On motion for alimony pendente lite, on a bill for divorce for cruel treatment, it appeared that the wife left her husband's house without his knowledge, and took their children with her. The bill showed no suffi- cient cause for her leaving at that time. The court refused alimony unless she returned with her children, and her hus- band refused to receive her. 3 Halst. Ch. 98 ; 4 Halst. Ch. 563. 133. Maryland. Upon the application of the wife, sepa- rated from her husband, and having no means of living or defraying the expenses of her suit, for alimony pendente lite and money to conduct the suit, the allowance will be made without an examination into the merits of the cause. 2 Md. Ch. Deeis. 335, 393. 134. Maryland. This, too, even though the jurisdiction of the court be denied by demurrer or otherwise. lb. 341. 135. Maryland and Texas. If the wife has under her own control the means of carrying on the suit, and maintain- ing herself pending the litigation, alimony will not be granted. lb.; also 6 Texas 29. 136. Maryland. If the wife be living with her husband, an allowance of alimony, pendente lite, would be unnecessary and improper, but it would not necessarily follow that the husband should not be forced to supply her with money to fee counsel, and to defray the expenses of the suit. 2 Md. Ch. Decis. 393. 137. Georgia. The power to grant temporary alimony is incidental to the jurisdiction of the Superior Court of Georgia over divorces. Such power does not belong in Georgia to a Court of Chancery. 10 Geo. 477. 138. Georgia. Alimony is granted to the wife pendente lite, whether she be plaintiff or defendant, on motion after the court has been judicially informed of the fact of the marriage. The amount is a matter of judicial discretion, depending upon the wealth of the husband, his personal inconie, the number of children or others dependent upon him, and the circle of society in which he is accustomed to move. Alimony, pendente lite, is less than permanent ali- ALIMONY. 241 mony and is limited to a support. The court has the power to modify the order at its option. lb. 139. Alabama. Where a husband abandons his wife without just cause, and casts her upon society destitute of the means of subsistence, a court of chancery, as an original ground of equity, will entertain a bill filed against him for alimony. 16 Ala. 440. 140. Texas. Alimony was decreed to the wife pendente lite. Several instalments had fallen due and were unpaid, when the suit was dismissed. Held, that by the dismissal of the suit, the decree for alimony was annulled, and no basis was left for process to carry it into execution, but the husband was bound to pay the debts of the wife for her support and necessary expenses. 6 Texas 29. 141. Wisconsin. An action of debt on a decree for ali- mony in another State cannot be maintained, it being in its nature temporary and distinct, and may be modified or annulled according to circumstances. The court making the decree can alone enforce the performance of it in the same judicial capacity in which it- was pron,ounced, 1 Chand. 280. 142. I^ew Hampshire. The court has the power, and on a proper case shown should award alimony, even though the decree of divorce is against the wife. 4 Foster 564. 143. Ijfew Hampshire. In such application, after a divorce on the petition of the husband, the court may consider evi- dence tending to refute the charges in the libel. lb. -144. Ehode Island. During the pendency of a petition for a divorce or for separate maintenance, the court cannot order the husband to furnish the wife with the money to carry on or defend the suits. 2 E. I. 64. 145. Maryland. In Maryland, the Court of Chancery will, upon a proper case shown, grant the wife alimony, even when a divorce is not asked for, yet the court will not in such case investigate the character of alienation of property by the husband, so as to compel his alienee to pay the allow- ance to the wife. 3 Md. Ch. Decis. 140. 146. Ohio. Where a separation de facto exists, the wife, living as a single woman, having had specific property granted her as alimony, may maintain an action at law in 16 242 LAW OF DIVORCE. regard to such property, without the joinder of her husband, though no divorce has been decreed. 1 Ohio St. 403. 147. Maryland. "Where the husband has separated from his wife, and refuses to live with her, and to provide for her, the court has the power to decree her alimony, though no divorce has been decreed. 4 Md. Ch. Decis. 289. 148. Pennsylvania. When the wife has no separate sup- port, she must be subsisted, and is entitled to her necessary costs pendente lite for divorce. She is not obliged to await the result of the suit. The court from time to time may make the proper allowance, according to the circumstances. 7 Harris 173. 149. Massachusetts. "Where proceedings for divorce were instituted in the Circuit Court by the wife, and no alimony was prayed for, but a divorce was granted ; it was held on a subsequent application for alimony in the Superior Court of Chancery, that matters which ought to have been em- braced in the previous decree in the other court, should not on principles of policy be again litigated between the same parties elsewhere. 5 Cush. 630. 150. New Jersey. On a bill for alimony and maintenance, a motion for alimony pendente lite and counsel fee will be denied, if the case, as it appears at the time of making the motion, shows that there is no foundation for the bill. 4 Ilalst. Ch. 540. 151. North Carolina. In suits for divorce and alimony brought by the wife under the act of 1852, after the pre- liminary adjudication, that the petition ought to be enter- tained, which is made in every case before a suit can be carried on, it is the duty of the court to make a reasonable allowance for the wife, pendente lite. 1 Jones 528. 152. Georgia. In a suit for divorce by a wife, after proof of marriage, a court does not scrutinize very strictly the conduct of a wife for the purpose of determining her right to temporary alimony. But for the purpose of fixing the amount, they will ascertain the amount of her separate for- tune. 15 Ceo. 97. 153. Georgia. "Where the defendant has been ordered to pay temporary aWmowy pendente lite, his neglect or refusal ' ALIMONY. 243 does not authorize the court to deny him the right to de- fend. 15 Geo. 405. 154. Illinois. Upon a question of alimony, the Supreme Court will not disturb the decree of the court below, unless it sees manifest injustice has been done. 15 111. 145. 155. Illinois. A wife holding lands and applying for a divorce, the court may upon decreeing alimony order that such lands be divided between the parties, and that they execute to e£(ch other conveyances to perfect such decree. lb. 156. Massachusetts. Before the passing of the statute of 1855, this court had no power to grant alimony until after a decree of divorce. 2 Gray 285. 157. Maryland, l^o decree for alimony can be passed against a husband who has no estate. 7 Md. 537. 158. Georgia. On application for temporary' alimony, ^pendente lite, the defendant answered, denying the legality of the marriage, and at the hearing offered proof of his as- sertion. Held, that the judge should have heard, the proof and decided the point, which he was fully competent to do without the aid of a jury. 17 Geo. 139. 159. Georgia. On a suit for divorce, where the marriage is proven, alimony is decreed almost as a matter of course, without entering into the merits of the case as to divorce, lb. 160. Alabama. Temporary alimony was allowed in a case by the chancellor, and a decree of divorce was after- wards obtained by the wife, from which the husband ap- pealed. N'otwithstanding the appeal, the chancellor had jurisdiction to grant an order to secure the prompt payment of the quarterly allowances made by the previous interlo- cutory decree, as also counsel fees of the wife's solicitors in defending the appeal. 27 Ala. 387. 161. Missouri. By the act of 1845, wanton abandonment by the husband and destitution of the wife, is good ground for a decree for the maintenance of the wife. 4 Bennett 355. 162. Kentucky. After a decree of divorce in Kentucky in favor of the husband, the wife brought a bill for alimony in Ohio. Held, that a decree for alimony in the Ohio court, having jurisdiction of the subject matter, was a valid decree, and enforceable in Kentucky. 15 B. Mon. 364. 244 LAW OF DIVORCE, 163. United States. Alimony cannot be granted before answer. 1 Hemp. 58. 164. Georgia. A husband applied for a divorce on the ground that his wife was pregnant at the time of marriage, and concealed the fact from him. Held, that she was en- titled to temporary alimony, pendente lite. 18 Geo. 273. 165. New York. "Where, upon a divorce, the plaintiff's permanent alimony was fixed, the court will not grant an additional allowance, merely because the expenses of the plaintiff have been augmented by reason of her assisting a person, whom the defendant was under no legal or moral obligation to support. 5 Duer 659. 166. Georgia. "Where alimony is craved, and there is reason to suspect that the action was not brought by the consent of the wife, it is the duty of the court to institute some inquiry as to- the bona fides of the suit. 18 Geo. 816. 168. Georgia. The allowance of temporary alimony is a matter of discretion, which this court will not control unless flagrantly extravagant. 19 Geo. 265. 169. Georgia. The order for temporary alimony may properly relate back to the commencement of the suit. lb. 170. Georgia. Upon a motion for temporary alimony in behalf of a libellant, it is competent for the court to decide whether or not the proceeding is bona fide, and the libellant 's counsel authorized to act. lb. 171. Indiana. Under the statute of Indiana, a decree for alimony must be of a sum in gross, and a decree awarding to the plaintiff certain property of the defendant by way of alimony, is erroneous. 7 Ind. 113. 172. ]lj fieri facias. Phill. 588. 289. North Carolina. A defendant in a divorce case was not served with process, but was present in court when an order for alimony was asked. Held, that the presence of the defendant did not give to the cause the character of a lis pendens, and no order for alimony could be made at such stage. Phill. Eq. 63. 290. North Carolina. In this State the question of mar- riage need not be decided before passing upon the right to alimony pendente lite. In deciding upon such right, the court is confined to a consideration of the petition in the cause. Phill. Eq. 215. 291. New Jersey. Where the real controversy in a suit ALIMONY. 259 is whether the marriage relation exists, the order for alimony and counsel fees pendente lite cannot be made upon the mere ex parte affidavits of the wife. 3 Green 43. 292. Mississippi. Alimony, pendente lite, will not be al- lowed, when it is apparent on the face of the bill that no decree for a divorce can be made ; nor will it be allowed, until the separate estate of the wife is exhausted. 41 Miss. 116. 293. Tennessee. Under the Tennessee Code, the court may make such order for the support of the complainant and her children, or any of them, out of her husband's pro- perty, as is proper, whether a decree of separation is pro- nounced or not. 3 Head 184. 294. Tennessee. If the wife have not sufficient separate property to prosecute or defend, the action, and is acting in good faith, she is entitled to alimony, pendente lite, and the expenses of the suit. 3 Head 527. 295. Kentucky. Pending a suit for alimony and divorce a vinculo, the wife as a creditor of the husband may main- tain a suit in her own name against those indebted to him. 2 Bush 263. 296. Indiana. Under the laws of Indiana, a court has power to grant alimony to the wife, although the divorce is granted to her husband for her misconduct. 28 Ind. 291. 297. Iowa. On decreeing a divorce of a wife for ill treat- ment, she was awarded, besides alimony, the homestead, it having been purchased with her means, though the hus- band's money had contributed towards the improvements thereon. 23 Iowa 433. 298. Michigan. A court of equity has no inherent power to decree permanent alimony. 16 Mich. 162. 299. Maine. The court has no power under the statutes of this State to allow alimony on a divorce a vinculo for im- potence. 55 Maine 21. 300. Vermont. A decree for temporary alimony is, during the pendency of the libel, entirely and exclusively within the jurisdiction and discretion of the Supreme Court, to be rescinded, modified or enforced ; it creates no debt ab- solutely, but is contingent, so long as the libel is pending, or until process for its collection has been ordered by the 260 LAW OF DIVORCE. court that made it, and no action can be maintained thereon, if the libellee dies before such order has issued. 41 Vt. 180. 301. New York. Neither the referee nor the court can make an order for the support of the plaintiff by her hus- band, when she fails to establish either of the grounds or causes required by the statute to authorize a judgment for separation from bed and board. 63 Barb. 621. 302. New York. In an action for divorce for adultery, alimony will not be granted, where the charges are all made on information and belief, without affidavits to support them, and they are positively denied by the defendant. Affidavits of general admissions of the defendant are in- sufficient, if coupled with a denial of the specific act charged. 7 Eob. 153. 303. New York. "Where the wife is charged with adul- tery, counsel fees and alimony will not be allowed her on a recriminatory charge of adultery set up in her answer on information and belief in general terms; but otherwise, where she swears that the husband, by reason of such adul- teries, contracted a venereal disease long after marriage, which he communicated to her ; such allegations constitute an affirmative defence. 7 Rob. 284. 304. Georgia. In divorce proceedings, it is in the discre- tion of the judge to inquire into the cause and circumstances of the separation, in fixing the amount of temporary ali- mony, or to refuse it altogether. The wife is not entitled to it as a matter of right. 38 Geo. 663. 305. Florida. A prima facie case must appear in the wife's pleadings, to authorize an order from the court grant- ing her means, from the husband's estate, to pay counsel fees. 12 Fla. 449. 306. Florida. It is error to award a single sum of money as alimony, instead of a periodical allowance. lb. 307. Florida. Before an allotment of permanent alimony is made, the ability of the husband should be shown, as well as the other considerations which are to be estimated, in connection with his facilities in determining the amount. lb. 308. California. An order for alimony and for the cus- tody of the children pendente lite, can only be made by the ALIMONY. 261 court in which the action for divorce is pending ; it cannot be made by the judge of the court where pending, in the district court of an adjoining county of the same district. 35 Cal. 688. 309. Kentucky. A woman in this State, abandoned by a man whom she had married in ignorance of the fact that he had a wife living in another State, is entitled to alimony. 3 Bush 227. 310. Indiana. This court will not disturb a decree for alimony as excessive, if the record does not show the amount of the husband's estate, his conduct towards the wife, &c. 29 Ind. 473. 311. Indiana. The court may give a reasonable time for the payment of alimony by instalments, on sufficient surety being given. lb. 312. Illinois. Although counsel for the wife, who is com- plainant in a bill for divorce, may obtain an order against the husband for the payment of fees pendente lite, on making a proper case, yet if the controversy be settled by the parties by the voluntary return of the wife to the husband, and the abandonment of the suit before counsel have procured such order, their right to it is gone. 45 111. 256. 313. Illinois. A deci-ee of $30,000 absolutely, as alimony, against a defendant who had $100,000, will not be allowed, when it appears that the whole amount was accumulated by the defendant before marriage, and that there is but one child. In such a case the allowance to the wife should be • paid at stated intervals. 46 111. 134. 314. Iowa. A judgment for alimony, on a petition for a divorce and alimony, is not void, because there is no state- ment in the original notice to the defendant of any claim for alimony. 26 Iowa 375. 315. Iowa. A district court having -jurisdiction of a pe- tition for divorce and alimony, may rightfully enforce a lien for alimony upon lands, although situated in another county. 26 Iowa 503. 316. Washington Territory. In a suit for divorce, the court may, instead of granting a sum absolutely to the wife as alimony, decree that a certain sum shall be paid into the hands of a trustee, the interest to be paid to the wife quar- 262 LAW OP DIVORCE. terly during her natural life, and at her death, the principal to revert to the husband. 1 Wash. Terr. 73. 317. "Washington Territory. Dismissing a divorce suit is such a termination of the suit as to authorize the court to adjudge that the plaintiff husband should bear the reason- able expenses and disbursements of the defendant wife. 1 Wash. Terr. 198. 318. Washington Territory. A husband suing for a di- vorce is liable, on the dismissal of his suit, for the counsel fees, as costs, of the wife. lb. 319. ^New York. The amount required to be paid to the wife, in a suit for divorce or separation, to enable her to carry on the suit, is discretionary with the judge, and can- not be reviewed on appeal. 3 Daly 358. 320. Indiana. When a divorce is decreed to the husband upon his own petition, it is not error to render judgment against him for the costs of the suit. lb. 322. Virginia. The rule of law is that, in a controversy touching the validity of a marriage, no alimony is due un- til some matrimonial proof appear, but wherever a marriage does appear, unless 'the wife be in fault, then alimony shall be due. 4 Hen. & Munf. 515. 323. Louisiana. An order giving alimony to the plain- tiff was granted ex parte, and without legal notice to the husband defendant, and without any proof of the facts, the judicial knowledge of which was essential to the exercise of a sound legal discretion. Held, that the order would work an irreparable injury to the defendant. 19 La. 505. 324. Illinois. A court of chancery has the power not only to make alimony a lien upon lands, but may enforce the decree by attachment for contempt, and if the defendant remain contumacious, may also sequestrate his real and per- sonal property. 45-111. 167. 325. Illinois. When a wife has voluntarily returned to her husband, and abandoned her suit for a divorce, her counsel cannot obtain an order for fees against the husband. 45 111. 256. 326. Illinois. The better mode of decreeing alimony is, unless special reason to the contrary exist, by an annual ALIMONY. 263 allowance to be held under the control of the court. 48 111. 241. 327. California. An order for alimony ^pendente lite can only be made in the court, in which the action for divorce is pending. 35 Cal. 688. 328. JS'ew York. A decree for divorce should not direct the payment by the defendant of arrears of alimony pre- viously ordered by the court. The plaintifl" should be left to enforce the payment of such arrears in the ordinary way. 55 Barb. 269. 329. New York. In respect to permanent alimony, the better way is to direct a reference to ascertain the amount which should be allowed, although this is not essential. lb. 330. Texas. "Where an Order for alimony pendente lite is not complied with by the husband, and at the trial the jury find against the wife's application for a divorce, an execution cannot be issued to enforce the allowance. The order for alimony is stated on the ground, that the wife's complaint is true; if the jury find against her, the order and all its consequences fall to the ground. 31 Texas 502. 331. Kentucky. The decree for alimony should be for so much only, as with the separate property of the wife will maintain her in decency and comfort during the separation. "Where the chancellor .decrees alimony, he should retain the case for the purpose of enlarging or curtailing the allowance, as circumstances may warrant, and for keeping open the door of reconciliation. 2 B. Mon. 149. 332. Kentucky. A Texan committed bigamy in Ken- tucky, and then abandoned his second wife. The Kentucky wife, being blameless, was held entitled to alimony. 3 Bush 327. 333. New Hampshire. A person imprisoned upon an ex- ecution to enforce a decree for alimony, comes within the act for the relief of poor debtors, and may lawfully be dis- charged from arrest upon giving bond as provided in the insolvent act. 47 N. Hamp. 95. 334. North Carolina. Upon an application for alimony pendente lite, it is unnecessary to decide whether the petition warrants a divorce a vinculo or only a divorce a mensa. 63 N. 0. 22. 264 LAW OF DIVOKCB. 335. Indiana. "Where a divorce was granted to a hus- band for the adultery of his wife, it was held that alimony of the value of one-third of his estate was unreasonable. 29 Ind. 48. 336. Massachusetts. A decree for alimony made by this court cannot be enforced by action thereon in the superior courts. 100 Mass. 373. 337. Ohio. "Where a petition for alimony is dismissed on a final hearing in the Common Pleas upon its merits, the case is not appealable to the District Court. 17 Ohio St. 663. 338. Louisiana. A preponderance of testimony in favor of a marriage is sufficient to base a judgment for alimony pending a suit for divorce, but such judgment rendered on a rule will not preclude the husband from urging the plea, at the final trial, that there was no marriage. 22 La. An. 401. 339. Wisconsin. Temporary alimony and suit money will not be granted by the appellate court to enable the appellant from a judgment of divorce, to prosecute her appeal, where it appears that the appeal is without merit. 23 Wis. 354. 340.' Illinois. A decree for alimony will operate as a dis- missal of another suit pending, brought by a feme covert under the act of 1867 for separate maintenance. 52 111. 370. 341. Iowa. The amount of alimony is governed by no fixed rule of law, but depends upon the facts and circum- stances of each case; and when fixed, the times of payment thereof should be adjusted so as to avoid, if possible, a sac- rifice of the husband's property to pay the amount allowed. 30 Iowa 352. 342. Ohio. The effect of an appeal from a decree for alimony is to reopen for trial in the appellate court all the issues of fact, upon which the rights of the parties in re- spect to alimony depend, notwithstanding a divorce was granted in the court below, which remains unaflfected by the appeal. 19 Ohio St. 502. 343. Ohio. Where the decree was granted to the wife on the ground, that the husband had another wife living at the time of the marriage, the court may decree reasonable ali- mony to the petitioner. 19 Ohio St. 588. ALIMONY. 265 344. Maryland. The courts of equity have no jurisdiction to decree alimony when both the husband and the wife are non-residents. The fact that the husband has property within the jurisdiction of the court will not authorize it to decree alimony, where both parties reside out of the State. 34 Md. 21. 345. Pennsylvania. One-third of a husband's annual profits or income is the maximum of alimony. Where a portion of the rents of a husband's land were appropriated to pay debts with which it was encumbered, the alimony allowed was one-third of what remained beyond the appro- priation. 16 P. F. Smith 866. 346. Pennsylvania. The order of alimony is part of the final decree, and when brought up by appeal is, with all the evidence, the subject of the jurisdiction of the Supreme Court. lb. 347. Illinois. A decree of divorce awarding a sum in gross as alimony bars all further claim of the wife to a fu- ture support by the husband. 47 111. 290. 348. Alabama. Alimony made to a wife upon a decree of total divorce under the statute in this State is absolute, and cannot afterwards be increased or diminished. 45 Ala. 264. 349. Ohio. On the hearing of a petition for alimony filed after the husband has procured an ex 'parte divorce in another State, it is competent for the wife to show that the husband has received accessions of property by inheritance since the date of the divorce. 20 Ohio St.'439. 350. ITew York. Where a decree of divorce rendered in Ohio, where neither party resides, and where the service was by publication, contains a direction for the payment of ali- mony, it is void in New York as to the alimony, whatever may be its efl"ect upon the marriage. 60 Barb. 107. Vide the following sections under their respective divi- sions: — Jurisdiction, §§ 5, 53. Petition or Libel, % 22. Practice, §§ 66, 72, 105, 115, 133, 145, 164, 177, 199. Property, §§ 8, 9, 41, 49, 57, 101, 106, 107, 110, HI, 118. Custody of Children, §§ 47, 51-53. Decree of other States, §§ 13-15. Position after Divorce, § 19. III. INDEX OF ALL CASES OF DIVORCE PUB- LISHED IN THE STATE REPORTS. ALABAMA. I.— Adultery. Wray v. Wray 19 Alabama, 532 Morris V. Morris Holston V. Holston Mosser v. Mosser Wray ». Wray Jetter v. Jetter 30 23 39 33 36 168 777 313 ■ 187 391 II.— Cruelty. Hill 9, Hill 10 Alabama, 537 Moyler ®. Moyler 11 " 620 Hughes 9. Hughes 19 " 307 Quarles v. Quarles 19 " 363 Morris v. Morris 20 " 168 Harrison v. Harrison 30 " 629 Eeese v. Reese 33 " 785 Bavid ». David 27 " 222 King «. King 28 " 315 Smedley v. Smedley 30 " 714 Ribet v. Ribet 39 " 348 III.— Desertion. LoTett J). Lovett Jones D. Jones Mead v. Hughes Gray v. Gray Glover v. Glover Hardin v. Hardin Crow V. Crow Holston V. Holston Hanberry ®. Hanberry Mims V. Mims Bryan v. Bryan . Kinsley v. Kinsley IV.— Other Causes of Divorce. 11 Alabama, 763 13 15 15 16 17 33 23 29 33 34 38 145 141 779 440 350 583 777 719 98 516 393 Harris v. Davis 1 Alabama, 259 Rawdon v. Rawdon 28 Mims 9. Mims 33 Wray v. Wray . 33 Grossman «. Grossman 38 Anonymous 35 565 98 187 486 326 268 LAW OF DIVORCE. v.— Jurisdiction and Domicile. Wall ■». Williamson 8 Alabama, 48 ~ ' ' ' 570 ' 440 499 785 387 ' 704 13 719 394 486 455 516 301 Eeed ». Hudson 13 Glover v. Glover 16 Harrison b. Harrison 19 Eeese «. Reese 23 Ex parte King 27 Wylie «. Wylie 27 Thompson v. The State 28 Hanberry v. Hanberry 29 Edwards e. Edwards 30 frossman «. Grossman 38 Ex parte Smith 34 Bryan «. Bryan 34 Fuller V. Puller 40 VI.— Petition or Libel. Hill ». Hill . Hansford ». Hansford Gray ». Gray Hughes «. Hughes Quarles ®. Quarles Morris «. Morris . Holston «. Holston Reese «. Reese David ». David Norris ii. Norris . Wylie «. Wylie . Smedley ». Smedley Ex parte Smith . VII.— Practice and Pleading. Hill V. Hill 10 Alabama, 527 10 15 19 19 20 23 23 27 37 27 30 34 561 779 307 363 168 777 785 223 519 704 714 455 Harrison «. Harrison 19 Morris ». Morris 20 Holston V. Holston 23 Ex parte King 27 Norris v. Norris . ' 27 King B. King 28 Rawdon ». Rawdon 28 Mosser ». Mosser 29 Edwards v. Edwards 30 Bryan «. Bryan 34 Anonymous 35 Kinsley «. Kinsley 37 Eibet V. Ribet .89 10 Alabama, 527 499 168 777 387 519 315 565 313 394 516 226 393 848 VIII.— Evidence. Moyler «. Moyler 11 Alabama, Hughes ». Hughes 19 u Morris «. Morris 20 " Crow e. Crow .23 " King V. King ! 28 " ' Rawdon «. Rawdon . . . . ." ! 38 " Mosser v. Mosser ! 29 " Hanberry t>. Hanberry •..'.! 29 " Anonymous ! '. 35 " Kinsley «. Kinsley •■....' 37 " Ribet «. Ribet ". 89 " 630 807 168 583 315 565 313 719 223 396 348 INDEX OF CASES. 269 IX.— Property. Harris «. Davis Wall«. ■Williamson Lovett «. Loyett . Mead «. Hughes . Quarles v. Quarles Norris v. Norris . Boykin «. Rain X.— Custody of Children. Hansford v. Hansford . Boaz V. Boaz Bryan «. Bryan . XI.— Decrees in other States. Harrison v. Harrison . do. do. Thompson v. The State Fuller V. Fuller . 1 Alabama 359 8 48' 11 763 15 " 141 19 363 27 519 28 332 10 Alabama, 561 31 435 34 " 516 19 Alabama, 499 20 " 639 28 " 13 40 801 XII.— Position of Parties after a Decree. Hansford v. Hansford 10 Alabama, 561 Lovett V. Lovett 11 " 763 Reed v. Hudson 13 " 570 Ex parte Smith 34 " 455 XIII.— Alimony. Harris v. Davis 1 Alabama, 259 Quarles v. Quarles 19 " 363 Ex parte King 37 " 387 King V. King 38 " 315 Mims V. Mims 33 " 98 Wray ». Wray 33 " 187 Ex parte Smith 34 " 455 Jetter «. Jetter 36 " 891 Kinsley v. Kinsley 37 " 393 Smith V. Smith 45 " 364 AEKAN'SAS. I.— Adultery. Turnbull v. TurnbuU 33 Arkansas, 615 II.— Cruelty. Rose V. Rose 4 English, 507 Simpson ». Simpson 35 Arkansas, 487 III.— Other Causes of Divorce. Rose V. Rose 4 English, 507 270 LAW OF DIVORCE. IV.— Jurisdiction and Domicile. Rose V. Rose 4 English, 507 Bauman «. Bauman 5 Barber, 617 Bowman v. Worthington 24 Arkansas, 533 v.— Practice and Pleading. Ferguson v. Collins 3 English, 341 Rose V. Rose 3 "507 Welch v. "Welch 3 Barber, 537 Bauman v. Bauman 5 " 617 Simpson ®. Simpson 35 Arkansas, 487 VI.— Evidence. Welch ». Welch 3 Barber, 537 VII.— Property. Ferguson ®. Collins 3 English, 341 Viser v. Bertrand 1 Barber, 367 do. do 3 " 396 VIII.— Alimony. Rose V. Rose 3 English, 507 Bauman v. Bauman 5 Barber, 617 Bowman v. Worthington . ' . . . .34 Arkansas, 533 CALIFORNIA. I.— Adultery. Conant v. Conant . Puller V. Fuller . Case V. Case . Miller v. Miller De Qodey v. De Godey 10 California, 349 17 " 605 17 " 598 33 " 353 39 " 157 II.— Cruelty. Morris v. Morris 14 California, 76 Johnson v. Johnson 14 " 459 Wand V. Wand .14 >> 512 Fuller «. Fuller ] I7 n go5 Mahone v. Mahone 19 " q26 Powelson v. Powelson 23 " 358 Gimmy v. Gimmy '23 " 633 EidenmuUer v. EidenmuUer . . . ', | 37 " 3^4 III.— Desertion. Washburn ®. Washburn 9 California, 475 Conant v. Conant 10 u 249 Hardenbergh ». Hardenbergh . . .' .14 " 054 Ex parte Perkins ' 18 n gg Morrison v. Morrison . . . . .' ." 20 " 431 Benkert «. Benkert . . . . .' '33 u 457 INDEX OP OASES, 271 IV.— Other Causes of Divorce. Baker v. Baker 13 California, 87 Mahone v. Mahone 19 " 696 v.— Jurisdiction and Domicile. Harman v. Harman 1 California, 315 Kashaw v. Kashaw . . ' . . . .3 " 312 Deuprez v. Deuprez 5 " 387 Bennett v. Bennett 28 • " 599 Bennett «. Southard 35 " 688 De Godey v. De Godey 39 " 157 VI.— Practice and Pleading. Kashaw v. Kashaw 8 California, 312 Deuprez ». Deuprez S Conant v. Oonant . . . . . Gimmy v. Glmmy Fox ». Fox Bennett «. Bennett . . Benkert v. Benkert Miller v. Miller 33 EidenmuUer v. EidenmuUer De Godey v. De Godey .... VII.— Evidence. Baker ®. Baker .13 California, 87 Fuller V. Fuller ....'... 17 ". 605 Case V. Case 17 " 598 Morrison v. Morrison 20 " 431 Fox V. Fox 35 " 587 VIII.— Property. Kashaw «. Kashaw 3 California, 313 Deuprez «. Deuprez 5 " 387 Washburn v. Washburn 9 " 475 Ex parte Perkins . 18 " 60 Gimmy v. Gimmy 33 " 633 Gimmy v. Doane 33 " 635 McLeran v. Benton 31 " 29 Miller v. Miller 33 " 353 EidenmuUer v. EidenmuUer .... 37 " 864 De Godey v. De Godey 89 " 157 6 387 10 ' 349 33 633 35 587 38 ' 599 33 467 33 ' 353 87 864 39 157 IX.— Custody of Children. Graham v. Bennett 3 California, Wanda. Wand 14 " Bennett v. Southard 35 " 503 513 X.— Position of Parties after a Decree. Barber v. Barber 16 California, 378 XI.— Alimony. Ex parte Perkins 18 California, 60 Bennett v. Southard 85 " 688 EidenmuUer v. EidenmuUer . . . .87 " 364 272 LAW OF DIVORCE. COIS^JS^ECTICUT. I.— Adultery. Goodwin v. Goodwin . Humplirey ». Humphrey Delliber v. Delliber Austin V. Austin II.-Cruelty. Shaw «. Shaw Sawtell V. Sawtell III.— Desertion. Scott ». Scott .... IV.— Other Causes of Divorce. Benton v. Benton Ferris v. Ferris Sawtell V. Sawtell v.— Jurisdiction and Domicile. Benton ». Benton Sanford i). Sanford Sawtell v. Sawtell Steele «. Steele VI.— Petition or Libel. Ferris v. Ferris Steele v. Steele VII.— Practice and Pleading. Scott V. Scott .... Hotchkiss' Petition Goodwin «. Goodwin . ' . Sanford v. Sanford Skelton v. Pendleton . Lyon V. Lyon .... Steele v. Steele .... VIII.— Evidence. Humphrey v. Humphrey Delliber v. Delliber Austin «. Austin Shaw V. Shaw IX.— Property. Smith V. Smith Goodwin ■». Goodwin Starr «. Pease Guilford v. Guilford . Hotchkiss 1). Hotchkiss Finch V. Finch McCarthy v. McCarthy 4 Day, 343 7 Connecticut, 116 9 " 233 10 " 321 17 Connecticut, 189 17 " 284 Kirby, 270 1 Day, 111 8 Connecticut, 166 17 " 284 1 Day, 111 5 " 353 17 Connecticut, 284 35 " 48 8 Connecticut, 166 35 " 48 Kirby, 270 1 Root, 355 4 Day, 343 5 " 353 18 Connecticut, 417 21 " 185 35 " 48 7 Connecticut, 116 9 " 233 10 " 221 17 " 189 1 Root, 349 4 Day, 343 8 Connecticut, 541 ■ 9 " 321 10 " 225 22 " 411 36 " 177 INDEX OF CASES. 273 X.— Custody of Children. Stanton «. Willson Marlborough i>. Hebron Shelton v. Pendleton Finch V. Finch 3 Day, 37 2 Connecticut, SO 18 " 417 22 " 411 XI.— Position of Parties after a Decree. Stanton v. Willson Marlborough's. Hebron Starr ». Pease Guilford V. Oxford Wheeler «. Hotchkiss Lyon V. Lyon Finch V. Finch 8 Day, 37 3 Connecticut, 8 9 " 10 " 21 " 23 " 30 541 321 325 185 411 XII.— Alimony. Smith V. Smith Sanford v. Sanford Shelton v. Pendleton Lyon V. Lyon 1 Root, 34& 5 Day, 353 18 Connecticut, 417 21 " 185 DELAWARE. I.— Adultery. McCauley ». McCauley .... 1 Harrington, 137 Jeans v. Jeans 3 " 38 Jeans v. Jeans 2 " 142 II.— Cruelty. McCauley ». McCauley .... 1 Harrington, 137 Grubb u. Grubb 1 " 516 Ki'ngsberry ». Kingsberry .... 3 " 8 III.— Desertion. Cbverdill v. Coverdill 3 Harrington, 18 IV.— Fraud, Insanity, and Intoxication. Elzey V. Elzey 1 Houston, 308 v.— Jurisdiction. Jeans v. Jeans 2 Harrington, 88 Jeans v. Jeans 3 " 186 Townsend v. Griffin 4 " 440 VI.— Practice and Pleading. McCauley v. McCauley .... 1 Harrington, 137 Jeans v. Jeans 3 " 13(5 18 274 LAW OF DIVORCE. VII,— Property. Grubb i>. Grubb Jeans v. Jeans Kingsberry «. Kingsberiy . Townsend v. Giiffln .... Spicer ». Spicer VIII.— Custody of Children. Jeans v. Jeans 1 Harrington, 516 3 " 143 3 " 8 4 " 440 5 " 106 3 Harrington, 143 FLORIDA. I.— Jurisdiction and Domicile. Ponder ». Graham 4 Florida, 33 Ghaires«. Chaires 10 " 308 Phelan v. Phelan 13 " 449 II.— Petition or Libel. Phelan v. Phelan 13 Florida, 449 III.— Practice. Underwood v. Underwood 13 Florida, 434 IV.— Alimony. Chaires v. Chaires 10 Florida, 308 Underwood ». Underwood 13 " 434 Phelan i>. Phelan .... . 13 " 449 GEOEGIA. I.— Adultery. Leary v. Leary 18 Georgia, 696 Swearingen v. Swearingen ... 18 " 316 Swearingen «. Swearingen 19 " 365 Odom V. Odom 86 " 986 II.— Cruelty. Whitaker v. Strong 16 Georgia, 81 Buckholts V. Buckholts 34 " 338 Johns 1). Johns 39 " 718 Odom V. Odom ." . 36 " 386 III.— Desertion. Word V. Word 39 Georgia, 381 INDEX OF CASES. 275 IV.— Other Causes of Divorce. Frith V. Frith 18 Georgia, 273 Killiam v. Killiam 25 " 186 Brown v. Westbrook 37 " 103 v.— Jtirisdiction and Domicile. McGee v. McGee 10 Georgia, 477 Whitaker «. Strong 16 " 81 Standridge «. Standridge 31 " 223 VI.— Practice and Pleading. Sterling ». Sterling 12 Georgia, 201 Cason V. Gason 15 " 405 Leary v. Leary 18 " 696 Frith D. Frith 18 " 273 Jackson v. Stewart 30 " 130 Buckholts ». Buckholts 34 " 338 Brown v. Westbrook 37 " 103 Goes s. Goes 29 " 109 Gholstein ». Gholatein 81 " 625 Standridge v. Standridge 31 " 233 Worthy v. Worthy 36 " 45 Creamer v. Creamer 36 " 618 VII.— Evidence. Leary v. Leary 18 Georgia, 696 Swearingen v. Swearingen 18 " 316 Sw^earingen v. Swearingen 19 " 365 Buckholts V. Buckholts 34 " 388 Word V. Word 29 " 281 Johns V. Johns 39 " 718 Odom V. Odom 86 " 286 VIII.— Property. Chapman v. Gray 8 Georgia, 341 Methoin v. Methoin 15 " 97 Whitaker v. Strong 16 " 81 Jackson o. Stewart 20 " 120 Killiam v. Killiam 25 " 186 Killiam v. Killiam 31 " 333 IX.— Alimony. Chapman i>. Gray 8 Georgia, 341 McGee a. MeGee 10 " 477 Sterling a. Sterling 13 " 201 Methoin v. Methoin 15 " 97 Cason 0. Cason 15 " 405 Frith V. Frith 18 " 373 Swearingen «. Swearingen 19 " 365 Pinckard ». Pinckard 33 " 31 Pinckard v. Pinckard 33 " 286 Killiam v. Killiam 25 " 186 Goss «. Goss * 29 " 109 Odom V. Odom . 36 " 286 276 LAW OP DIVORCE. ILLINOIS. I.— Adultery. Davis V. Davis 19 Illinois, 334 Thomas v. Thomas 51 " 162 II.— Cruelty. Vignis V. Vignis 15 Illinois, 186 Harman v.' Harman . . ' . . . .16 " 85 Davis V. Davis 19 " 334 De la Hay v. De la Hay 31 " 352 TurWtt V. Turbitt 21 " 438 Von Olahn «. Von Glahn .' . . . .46 "135 Embree v. Embree 58 " 394 III.— Desertion. Eeavis v. Reavis 1 Scammon, 343 Ashbaugh i). Ashbaugh 13 Illinois, 476 Thomas v. Thomas 51 " 163 Embree v. Embree 58 "894 IV.— Other Causes of Divorce. Hamaker v. Hamaker . . ' . . . .18 Illinois, 137 Turbitt V. Turbitt 31 " 438 Thomas v. Thomas 51 " 163 v.— Jurisdiction and Domicile. Clash V. Lott 11 Illinois, 105 Ashbaugh v. Ashbaugh 13 " 476 Birkby v. Birkby 15 " 120 ■ Davis V. Davis 30 " 180 Heatherwick v. Heatherwick . . . .83 " 73 Thomas !). Thomas 51 " 163 Plaster v. Plaster 53 " 445 VI.-Libel. Harman v. Harman 16 Illinois, 85 Brrissman «. Brrissman 35 " 136 Hawes v. Hawes 33 >• 386 VII.— Practice. Clash «. Lott 11 Illinois, 105 Shillinger «. Shillinger 14 »i 147 Thatcher v. Thatcher 17 " 66 De la Hay t>. De la Hay 31 " 353 Townsand v. Townsand . . . . .21 " 540 Errissman «. Errissman . . . . ! 25 " 136 Harris 0. Harris 38 " 286 Wightman v. Wightman . . . . ! 45 " 167 Embree i>. Embree ! 53 " 394 VIII.— Evidence. Reavis «. Eeavis 1 Scammon, 243 Shillinger «. Shilhnger I4 nunois, 147 Vigms 11. Vignis 15 " 186 INDEX OP CASES. 277 VIII. — Evidence. Continued. Harman «. Harman 16 Illinois, 85 Thatcher «. Thatcher 17 " 66 Wheeler v. Wheeler .:.... 18 " 39 Davis V. Davis 19 " 334 Bergen v. Bergen 33 " 187 Hawes ». Hawes 33 " 286 Streeter v. Streeter 43 " 157 Von Glahn v. Von Glahn 46 "185 IX.— Property. Clash 11. Lott 11 Illinois, 105 Stewartson ■». Stewartson 15 Hopper V. Hopper 19 Vanzant v. Vanzant 33 Errissman «. Errissman 25 Armstrong v. Armstrong 35 Blue V. Blue 38, Keating «. Keating 48 145 219 536 136 109 9 241 X.— Custody of Children. Miner v. Miner 11 Illinois, 43 Plaster «. Plaster 47 " 290 do. do 53 " 445 XL— Costs. Thatcher v. Thatcher 17 Illinois, 66 Armstrong ». Armstrong 35 " 109 McCulloch V. Murphy 45 " 356 XII.— Position of Parties after a Decree. Waddams v. Humphrey 23 Illinois, 661 Vanzant v. Vanzant 23 " 536 Davis V. Davis 30 " 180 Streeter «. Streeter 43 " 157 XIII.— Alimony. Beavis i>. Reavis 1 SCammon, 243 Wren v. Moss 2 Oilman, 73 Stewartson ». Stewartson 15 Illinois, 145 Wheeler v. Wheeler 18 Hopper V. Hopper 19 Bergen v. Bergen 23 Foote V. Foote 22 Errissman v. Errissman 25 Jolliff 11. Jolliff 33 Armstrong v. Armstrong 35 Petrie v. People 40 Wightman ®. Wightman 45 Plaster v. Plaster 47 Keating i>. Keating 48 ■ Von Glahn v. Von Glahn ..... 46 Harper v. Booker . ; . . . .53 Plaster v. Plaster 53 39 219 187 435 186 527 109 334 167 290 241 135 370 445 278 LAW OF DIVORCK. IJ^DIANA. I.— Adultery. Christianberry v. Christianberry .... 3 Blackford, 303 • Phillips v. Phillips 4 " 131 McCaflferty «. McCafferty 8 " 3J8 Fulk V. Fulk 8 " 561 Lewis V. Lewis ....... 9 Indiana, 105 Armstrong v. Armstrong 37 " 186 II.— Cruelty. Rudman «. Riidman 5 Indiana, 63 Kourke ». Eoiirke 8 " 437 Scott V. Scott 17 " 309 Shores v. Shores 33 " 546 Ruby «. Ruby 39 " 174 III.— Desertion. McCoy V. McCoy 3 Indiana, 555 Lewis V. Lewis 9 " 105 IV.— Drunkenness. Rourke v. Rourke 8 Indiana, 437 v.— Jurisdiction and Domicile. Tolen «. Tolen 3 Blackford, 407 Varner 1). "Vamer 3 " 163 Smith.?). Smith 4 " 133 Ritter ». Ritter 5 " 81 Noel V. Ewing 9 Indiana, 37 Wilcox II. Wilcox 10 Herron v. Herron 16 Waltz V. Waltz 18 Ellis V. Hatfield 20 Beard ®. Beard 21 Jenness v. Jenness 34 Ewing V. Ewing 24 Kernodle v. Cason 35 436 139 449 101 321 355 468 362 VI.— Petition. Christianberry v. Christianberry .... 3 Blackford, 303 Stafford v. Stafford 9 Indiana, 163 Eritz V. Fritz 33 u 3gg VII.— Practice and Pleading. Ritter ». Ritter 5 Blackford, 81 McJunkin v. McJunkin .... 3 Indi Gregg V. Gregg ." 3 Phillips V. Phillips 5 Green «. Green . 7 Nare v. Nave •••■•.'. 7 Lewis V. Lewis . 9 Stoner v. Stoner ■..."... 9 Woolley V. WooUey •■.!!" 13 ana, 30 ' 305. 190 ' 113 ' 122 ' 105 ' 505 663 INDEX OF CASES. 279 VII.— Practice and Pleading. Continued. McQuigg V. McQuigg 13 Indiana, 394 Chandler v. Chandler 13 " 492 Beard v. Beard 31 " 331 Eindge «. Rindge 33 " 31 Jenness J). Jenness 34 " 355 Ewing V. Ewing 24 " 468 Morse v. Morse 25 " 156 Kernodle o. Cason 25 " 362 Gullett i>. GuUett 35 " 517 Kenemer «. Kenemer 36 " 330 Armstrong i>. Armstrong . . . . 37 " 186 Hedrick D. Hedrick 38 " 391 Euby V. Ruby 29 " 174 Barr «. Barr 31 " 340 VIII.— Evidence. McCuUoch V. McCulloch McCafterty v. McCaflerty Trimble «. Trimble Naye v. Nave Stafford ». Stafford Morse v. Morse Armstrong v. Armstrong Cochnower v. Cochnower Barr v. Barr . IX.— Property. Frakes v. Brown . Doe V. Brown McCafferty v. McCafferty Fulk V. Fulk Comly V. Strader . Russell V. Russell Eudman v. Rudman Rice V. Eice . Eourke v. Rourke Chenowith v. Chenowith Rindge v. Rindge . Billan -o. Hercklebrath Hedrick i>. Hedrick Muckenburg v. Holler . Cunningham «. Mitchell Button ». Dutton . Barr v. Barr . Farr ■». Buckner . 8 Blackford, 60 8 &( 318 3 Indiana , 76 7 ■ 132 9 163 35 156 27 186 37 253 31 240 3 Blackford, 295 5 ' U ' 309 8 U 218 8 £1 561 1 Indiana 134 1 510 5 63 6 100 8 437 14 3 23 81 33 71 38 391 39 139 30 262 30 453 31 240 33 382 X. Custody of CMldren. Tarkington v. State 1 Indiana, 171 Darnall v. MuUikin 8 " 152 Williams i>. Williams 13 " 533 Ewing 1). Ewing 34 " 468 XI. Position of Parties after a Decree. Whitsall V. Mills . '. 6 Indiana, 329 McQmgg V. McQuigg 13 " 394 O'Daily v. Morris 81 " 111 280 LAW OF DIVORCE. XII. Alimony. Prakes v. Brown . McCuUocli V. McCulloCh Gregg «. Gregg Houston -0. Houston Rudman v. Rudman Eice V. Rice . Green v. Green Rourke v. Rourke Stafford v. Stafford Hart ». Hart . Chandler «. Chandler Scott V. Scott Beard «. Beard Ewing V. Ewing . Morse v. Morse Cox V. Cox . Coon V. Coon . > Kenemer ». Kenemer Conner v. Conner Muckenburg v. Holler Ifert V. Ifert . Farr «. Buckner . Hyatt V. Hyatt 2 Blackford 295 8 a 60 8 Indiana, 305 4 139 5 63 6 100 7 113 8 437 9 162 11 384 13 492 17 309 31 321 34 468 35 156 35 303 2(5 189 2fi 330 39 48 39 139 29 473 33 383 38 309 IOWA. I.— Adultery. Inskeep v. Inskeep 5 Clark, 204 II.— Cruelty. Beebe v. Beebe 10 Iowa, 133 Carnthers v. Caruthers 13 " 266 Preerking i). Freerking 19 " 84 Coles. Cole 23 " 433 III.— Desertion. Pinkney v. Pinkney . McCraney i>. McOraney Dupont i>. Dupont IV.— Jurisdiction and Domicile. Levins ». Sleator Smith ®. Smith Hinds 9. Hinds Andrews v. Andrews .... Harsberger v. Harsberger . v.— Petition or Libel. Pinkney v. Pinkney McCraney ». McCraney Beebe v. Beebe . Freerking b. Freerking Cole V. Cole 4 Green. 324 5 Clark, 333 10 Iowa, 113 3 Green, 604 4 " 366 1 Clark, 86 15 Iowa, 423 36 " 503 4 Green, 324 5 Clark, 333 10 Iowa, 133 19 " 34 23 " 433 1 Clark 130 5 " 541 14 Iowa, 189 15 " 433 20 " 235 33 " 433 INDEX OF CASES. 281 VI.— Practice or Pleading. Lyster v. Lyster . Jungk V. Jungk . Barney v. Barney Andrews v. Andrews Gilruth «. Gilruth Cole «. Cole VII.— Evidence. Pinkney v. Pinkney 4 Green, 324 Lyster ». Lyster 1 Clark, 130 Inskeep «. Inskeep 5 " 204 Cole V. Cole 23 Iowa, 433 VIII.— Property. Levins «. Sleator 2 Green, 604 Russell 0. Russell . , . . . . . . 4 " 26 Joly V. Joly 1 Clark, 9 Inskeep v. Inskeep 5 " 304 Cole V. Cole 23 Iowa, 433 Harshberger ». Harshberger 26 " 503 IX.— Custody of Children. Hunt V. Hunt 4 Green, 216 Barney v. Barney 4 Iowa, 189 Andrews ». Andrews 15 " 424 Cole V. Cole 23 " 433 X.— Position of Parties after a Decree. Andrews v. Andrews 15 Iowa, 423 XI.— Alimony. Westbrook v. Westbrook 2 Green, 598 Russell «)• Russell . . 4 " 26 Joly V. Joly 1 Clark, 9 Jungk V. Jungk .... . . . 5 " 541 Dupont V. Dupont 10 Iowa, 112 Cole V. Cole 23 " 433 Blythe v. Blythe 25 " 366 Harshberger v. Harshberger 26 " 503 McEwen «. McEwen 26 " 375 Farley v. Farley 80 " 353 ka:n'sas. Jurisdiction.— Practice.— Alimony. Worth V. Worth . - 4 Banks, 223 282 LAW OF DIVORCE. KEI^TUCKY. I.- Cruelty. Thornberry v. Thomberry 2 J. J. Marshall, 322 Lockridge v. Lockridge 3 Dana, 28 Boggess «. Boggess .... 4 " 307 Finley v. Finley .... 9 " 52 Mayhugh v. Mayhugh. 7 B. Monroe, 424 Griffin v. Griffin .... 8 " 120 Quisenberry «. Quisenberry 1 Duval, 197 II.- -Desertion. Fialili 11. Fishli 2 Littell, 337 Logan V. Logan ..... 2 B. Monroe, 144 McCrocklin i. McCrocklin 3 " 370 Evans v. Evans .... 5 " 278 Watkinson v. Watkinson . . 13 " 211 Stibbins v. Stibbias .... 1 Metcalfe, 476 Lee v. Lee 1 Duval, 196 Epling «. Epling .... 1 Bush, 74 Hick V. Hick 5 " 670 III —Other Causes of Divorce. Watkinson «. Watkinson . . 12 B. Monroe, 211 McKay ». McKay .... . 18 " 8 Strode v. Strode .... 3 Bush, 227 Shrook «. Sbrock .... 4 " 682 Shuck V. Shuck .... 7 " 306 IV. —Jurisdiction and Domicile. Lockridge «. Lockridge 3 Dana, 28 Simpson «. Simpson .... 4 " 141 Boggess V. Boggess .... 4 " 307 Maguire v. Maguire .... 7 " 181 Berthelemy v. Johnson 3 B. Monroe, 90 Pence v. Pence 6 " 497 Gaines ». Gaines .... 9 " 295 Becket v. Becket .... 17 " 374 Cabell V. Cabell .... 1 Metcalfe, 319 Shrock ». Shrock .... 4 Bush, 682 Hick «. Hick 5 " 670 V.- -Practice and Pleading. Thornberry v. Thornberry 4 Littell, 251 do. do. 2 J. J. Marshall, 322 Dejarnet v. Dejarnet .... 5 Dana, 499 Lockridge v. Lockridge 2 B. Monroe, 258 Logan V. Logan 3 " 149 McCrocklin ». McCrocklin 3 " 370 Evans «. Evans 5 " 278 Pence v. Pence 6 " 497 Bourne «. Simpson .... 9 " 457 McDonald «. Fleming 13 " 387 Wilmore v. Wilmore 15 " 49 Stibbins v. Stibbins .... 1 Metcalfe, 476 INDEX OF CASES. 283 v.— Practice and Pleading. Meyar v. Meyar Williams «. Gooch . Strode v. Strode Continued. VI.— Evidence. Mayhngh v. Mayhugh Stibbins 11. Stibbins . Epling 9. Epling VII. —Property. Fishli V. Fishli . Thornberry e. Thomberry Dejamet «. Dejarnet . Maguire v. Maguire . Logan ffl. Logan, r Gaines ». Gaines McDonald v. Fleming Wilmore b. Wilmore Williams 0. Gooch Quisenberry ». Quisenberry Cain ». McHarry Flood ». Flood . Rich «. Rich VIII.— Custody of CMldren. MoBride «. McBride . 3 Metcalfe, 398 3 " 486 3 Bush, 327 7 B. Monroe, 434 1 Metcalfe, 476 1 Bush, 74 2 Littell, 337 4 " 351 5 Dana, 499 7 " 181 3 B. Monroe, 149 9 " 395 13 " 387 15 " 49 3 Metcalfe, 486 1 Duval, 197 3 Bush, 363 5 " 167 7 " 53 IX.— Decree of another State. Maguire v. Maguire . 1 Bush, 15 7 Dana, 181 X.— Position of Parties after a Decree. 5 J. J. Marshall, 639 8 B. Monroe, 231 1 Metcalfe, 319 3 " 298 Taylor ». Simpson Cox V. Combs . Cabell 11. Cabell . Meyar «. Meyar . Flood V. Flood . XI.— Costs. Finley 11. Finley .... Williams v. Monroe 18 B. Monroe, 518 5 Bush, 167 9 Dana, 53 Ballard ». Caperton . Meyar v. Meyar Nikirk v. Nikirk Burgess v. Burgess . Dugan V. Dugan Cravens ®. Cravens . XII.— Alimony. Fishli V. Fishli . Glenn v. Glenn . Thornberry «. Thornberry Lochridge v. Lochridge Boggess V. Boggess . Dejarnet o. Dejarnet . Maguire «. Maguire . 3 Metcalfe, 413 3 " 398 3 " 433 1 Duval, 387 1 " 389 4 Bush. 435 3 Littell, 337 7 Monroe, 386 2 J. J. Marshall, 332 3 Dana, 28 4 " 307 5 " 499 7 " 181 284 LAW OP DIVORCE. XII. — Alimony. Continued. Lockridge v. Lockridge Logan «. Logan WooldEidge v. Lucas Mayhugh «. Mayhugh Whitsell V. "Whltsell Griffln a. Griffin Culver «. Culver Gaines v. Gaines Lee «. Lee . Cain v. McHarry Strode ». Strode Cravens v. Cravens 3 B. Monroe, 358 3 149 7 50 7 434 8 " 50 8 130 8 138 9 395 ] Duval, 196 3 Bush, 363 8 " 337 4 " 435 LOUISIANA. I.— Adultery. Adams «. Hurst . Cooper «. Cooper . Ledoux ». Boyd . Mehle «. Lapeyrollerie Homes ■». Carrier . II.— Cruelty. Cooper V. Cooper . Taylor v. Phelps . Edwards v. Green Trowbridge v. Carlin Thomas «. Tailleu Bienvenu v. Buisson Lauber B.'Mast Halls V. Cartwright III.— Desertion. Harman v. McLeland MuUer v. Hilton . IV.— Jurisdiction and Domicile. Neal V. Neal Knight ». Knight .... Muller «. Hilton v.— Practice. Savoie ®. Ignogoao Harman v. McLeland Trowbridge v. Carlin Knight V. Knight . Muller ®. Hilton . Succesaion of Weigel Gernon v. Hickey Heyob v. Bouixiette Moore ■». Moore Holbrook v. Holbrook Madden v. Fielding 9 Louisiana, 343 10 " 349 10 Louisiana Annual, 663 16 " 4 16 " 94 10 Louisiana, 349 10 , " 114 9 Louisiana Annual, 317 13 883 13 137 14 386 15 593 18 414 16 Louisiana, 36 13 Louisiana Annual, 1 1 Louisiana Annual, 315 13 " 59 13 " 1 7 Louisiana, 381 16 U 36 18 Louisiana Annual, 883 13 59 13 1 18 49 18 454 18 41 18 613 18 643 19 505 INDEX OF CASES. 285 VI.— Evidence. Savoie «. Ignogoso Adams v. Hurst . Taylor v. Phelps . Harman v. McLeland Edwards v. Green Thomas v. Tailleu Tucker v. Carlin . Succession of Weigel Pisk,«. Fisk . 7 Louisiana, 281 9 " 343 10 " . 114 16 " 36 9 Louisiana Annual, 317 13 " 137 14 " 734 18 " 49 33 " 401 VII.— Property. De Young v. DeYoung Williamson v. Amilton Tucker «. Carlin . Ewing ■». Altmeyer Heyob v. Bourdette VIII.— Alimony. Edwards v. Green Collins ». Hallier . Fletcher v. Henley Lauber «. Mast Moore v. Moore . , Holbrook v. Holbrook Madden v. Fielding Fisk ». Fisk . 9 Louisiana Annual, 545 13. , '■' 387 14 " 734 15 " 416 18 " 41 9 Louisiana Annual, 317 13 " 678 13 " 150 15 " 593 18 " 613 18 " 643 19 " 505 33 " 401 MAINE. I.— Adultery. Backus V. Backus . Anderson ». Anderson Eandall v. Randall Vance v. Vance Harding «. Alden . Moulton V. Moulton Vance v. Vance State V. Weatherby 3 Greenleaf, 136 4 " 100 4 " 326 8 " 132 9 " 140 1 Shepley, 110 5 " 203 1 Ludden, 358 II.— Cruelty. Williams v. Williams 3 Greenleaf, 135 Anderson «. Anderson 4 " 100 Bradley v. Bradley 3 Fairfield, 367 Woodruflfi). Woodruff 3 " 475 Motley V. Motley 1 Redington, 490 El well «. Elwell 2 " 387 Slade V. Blade 7 Virgin, 157 286 LAW OF DIVORCE. III.— Desertion. Sherburne v. Sherburne Harding v. Alden . Anonymous . Ricker v. Kicker . Fellows V. Fellows Moitey v. Moitey . Goodwin «. Goodwin IV.— Other Causes of Divorce. Motley V. Motley .... Chase v. Chase .... -Jurisdiction. Sherburne «. Sherburne Harding v. Allen . Appendix (statute) Jones ». Jones Anonymous .. Kicker «. Kicker . Ex parte Tarbell . Goodwin v. Goodwin Adams «. Palmer . Calef «. Calef VI.— Petition or Libel. Vance «. Vance . VII.— Practice and Pleading, Turner «. Turner . Backus ®. Backus Vance i). Vance . Jones V. Jones Dwelly 0. Dwelly Coffin V. Coffin . Merrill ». Shattuck Slade ». Slade Webster v. Webster Stilphen v. Stilphen VIII.— Evidence. Williams v. Williams Turner i>. Turner Anderson v. Anderson Randall «. Randall Cayford's Case Vance v. Vance . Bradley «. Bradley Woodrufi'«. Woodruff Moulton V. Moulton Dwelly e. Dwelly Merrill v. Shattuck IX.— Property. Curtis V. Hobart . Adams «. Palmer . Webster v. Webster 6 Greenleaf, 310 9 " 140 14 Shepley, 563 39 Maine, 381 31 " 343 1 Kedington, 490 1 Hubbard, 377 1 Redington, 490 4 Virgin, 31 6 Greenleaf, 310 9 " 140 4 Shepley, 479 6 " 808 14 " 568 39 Maine, 381 3 Kedington, 589 1 Hubbard, 377 7 " 480 3 Virgin, 365 5 Shepley, 303 3 Greenleaf, 398 3 " 186 5 Shepley, 208 6 " 308 3 Hubbard, 377 4 Virgin, 861 4 " 374 7 " 157 7 " 139 7 " 508 3 Greenleaf, 135 398 100 336 57 133 3 Fairfield, 367 3 " 475 1 Shepley, 110 3 Hubbard, 377 4 Virgin, 374 1 Adams, 330 7 Hubbard, 480 7 Virgin, 139 INDEX OF CASES. 287. 9 Greenleaf, 140 X.— Decree in other States. Harding «. Alden XI.— Position of Parties after a Decree. Stilphen «. Stilphen 7 Virgin, 508 XII.— Alimony. Chase v. Chase 4 Virgin, 31 MAEYLAND. I.— Cruelty. Ricketts v. Ricketts Codd V. Codd Levering v. Levering . Lynch v. Lynch . Hewitt v. Hewitt McNamara v. McNamara Scott i>. Scott Govane v. Govane Coles «. Coles Daiger v. Dalger . Tayman v. Tayman Bowie V. Bowie . . 4 Gill, 105 (foot) 1 Blands Ch., 101 . 16 Maryland, 213 . 33 " 339 . 1 Blands Ch., 101 (foot) 1 " 566 (foot) 3 " 341 (foot) 3 " 570 . 3 Maryland Ch., 341 . 3 " 385 . 3 " 393 . 3 " 51 II.— Desertion. Brown v. Brown . Levering v. Levering Harding v. Harding Lynch v. Lynch . Browne ». Browne III.— Intemperance. J. G. V. H. G. IV.— Jurisdiction and Domicile. Crane v. Meginnis Brown ». Brown Wright V. Wright J. G. ■». H. G. Keerl v. Keerl Browne v. Browne Dunnock ®. Dunnock Jamison «. Jamison v.— Practice. Bayly v. Bayly VI.— Evidence. Bowie ». Bowie 5 Gill, 349 16 Maryland, 313 33 " 345 33 " 339 3 Maryland Ch., 316 33 Maryland, 401 1 Gill & Johnson, 463 5 Gill, 349 3 Maryland, 439 33 " 401 34 " 31 3 Maryland Ch., 316 3 " 140 4 " 389 2 Maryland Ch., 336 3 Maryland Ch., 51 288 LAW OF DIVORCE. VII.— Property. Wallingsford v. Wallingsford Eicketts v. Ricketts Brown v. Brown . Wright V. Wriglit Feigley v, Peigley Helms 1). Franciscus Brown v. Brown . Tayman v. Tayman Dunnock v. Dunnock VIII.-Custody of Children. Levering «. Levering . Harding ®. Harding IX.— Alimony. Galwith ■». Gal with Wallingsford ii. Wallingsford Crane v. Meginnis Ricketts v. Ricketts Feigley «. Feigley Keerl v. Keerl Hewitt V. Hewitt . Codd V. Codd Helms V. Franciscus McNamara v. Mcljfamara . . (foot) Scott V. Scott .... (foot) Govane v. Govane Bayly ». Bayly Dunnock v. Dunnock . Jamison v. Jamison 6 Harris & Johnson, 485 4 Gill, 105 5 " 349 2 Maryland, 439 7 " 537 SBlandsCh., 544 3 Maryland Ch., 316 3 " 393 3 " 140 16 Maryland, 313 33 " 345 4 Harris & McHenry, 477 6 Harris & Johnson, 485 1 Gill & Johnson, 463 4 Gill, 105 7 Maryland, 537 34 " 31 1 Elands Oh., 101 ■1 " 101 3 « 544 2 " 566 3 " 568 3 " 570 3 Maryland Ch., 326 3 " 140 4 " 289 MASSACHUSETTS. I.— Adultery. Mangue ■». Mangue Baxter v. Baxter . Richardson v. Richardson Holland ®. Holland Lane v. Lane West V. West Church V. Church Hopkiiis V. Hopkins Homston v. Homston . Squire «. Squire . Choate v. Choate . Tourtelot o". Tourtelot . Reemie v. Reemie North V. North . Brown v. Brown . Anonymous . Carter v. Carter . Pastoiet v. Pastoiet Labotiere v. Lahotiere . Washburn v. Washburn 1 Massachusetts 341 1 346 . 2 153 . 3 " 154 . 2 " 167 3 " 233 3 157 3 158 3 " 159 3 184 3 " 391 4 606 4 586 5 330 . • 5 " 330 6 147 6 " 363 6 " 376 8 " 383 8 131 INDEX OF CASES. 289 I. — Adultery. Continued. Smith V. Smith . ElUs «. Ellis Merry «. Merry . Mansfield «. Mansfield . Commonwealth ». Putnam West Cambridge v. Lexingti Hunter «. Boucher Pierce v. Pierce . Putnam ». Putnam Billings ». Billings Bahcock v. Babcock . Commonwealth v. Hunt Allen v. Allen Clark V. Clark Clapp V. Clapp Thayer «. Thayer II.— Cruelty. Hill B.Hill . Warren ®. Warren French v. French Perkins v. Perkins Kriger v. Day Greene v. Greene . Harteau o. Harteau Pidge 11. Pidge Gardner v. Gardner Burleh v. Shannon French ». French Bailey «. Bailey . Shaw V. Shaw Lea «. Lea . Hubert v. Fera . Eobbins v. Bobbins Peabody o. Peabody Ford V. Ford III.— Desertion. Harteau b. Harteau Pidge V. Pidge Brett V. Brett Commonwealth ». Hunt Lyon «. Lyon Greene ». Greene . Shannon v. Shannon Hews ». Hews Allen D. Allen Lea i>. Lea . Southwick 1). Southwick Fera v. Fera Lea ». Lea . Thurston «. Thurston Hubert «. Fera Bobbins v. Eobbins Magrath v. Magrath 19 9 Massachusetts, 422 11 " 92 12 " 312 13 " 412 1 Pickering, 136 1 " 506 3 " 289 3 " 299 8 " 433 11 " 461 22 " 61 4 Cushing, 49 4 Allen, 39 97 Massachusetts, 331 97 " 581 101 " 111 2 Massachusetts 150 3 331 4 587 6 69 2 Pickering, 316 11 " 410 14 " 181 3 Metcalf, 257 3 Gray, 434 8 " 387 14 " 186 97 Massachusetts, 373 98 158 99 " 493 99 198 100 " 150 104. " 195 104 198 14 Pickering, 181 3 Metcalf, 257 5 " 233 4 Cushing, 49 3 Gray, 367 3 " 361 3 " 285 7 " 279 4 Allen, 39 8 " 418 97 Massachusetts, 337 98 " 155 99 " 493 99 " 39 99 " 198 100 150 103 577 290 LAW OF DIVORCE. IV.— Other Causes of Divorce. Anonymous . Donovan v. Donovan Foss V. Foss v.— Jurisdiction and. Domicile. Moore v. Moore Eichardson «. Bichardson . Lane v. Lane Hopkins v. Hopkins' . . . . Squire v. Squire Carter v. Carter Labotiere b. Labotiere . . Merry v. Merry Hanover «. Turner . . . . West Cambridge v. Lexington . Putnam v. Putnam . . . , Greene v. Greene . . . . Harteau v. Harteau . . . . Brett «. Brett . . . . . Clark V. Clark Lyon 11. Lyon Shannon v. Shannon . . . . Shaw «. Shaw Schrow «. Schrow . . . . Ross ». Ross VI.— Petition or Libel. Church V. Church Choate v. Choate . Young V. Young . Tourtelot v. Tourtelot Willard v. Willard Jenne v. Jenne . Winslow V. Winslow . Washburn v. Washburn Gould 9. Gould . Pord V. Ford VII.— Practice and Pleading. Orrok v. Orrok . West «. West Homston v. Homston . Anonymous Smith «. Smith . Pastoret v. Pastoret Mace V. Mace Broadstreet v. Broadstreet Randall v. Randall Smith V. Smith . Labotiere v. Labotiere . Merry n. Merry . Mansfield v. Mansfield . Davol V. Davol . Howard v. Howard Brown «. Brown . Stevens v. Stevens Morton v. Morton . 4 Pickering, 33 9 Allen, 140 13 " 36 3 Massachusetts 117 3 153 3 167 3 " 158 3 184 6 363 8 " 383 13 313 14 " 337 1 Pickering, 506 8 " 433 11 " , 410 14 " 181 5 Metcalf, 333 8 " 385 3 Gray, 367 4 Allen, 134 98 Massachusetts, 158 103 574 103 " 575 3 Massachusetts, 157 3 391 4 " 430 4 506 4 506 7 " 94 7 96 8 131 1 Metcalf, 383 104 Massachusetts, 198 1 Massachusetts, 341 3 " 333 3 " 159 5 197 6 " 36 6 376 7 313 7 " 474 7 503 9 " 433 8 383 13 313 13 " 413 13 " 363 15 " 196 15 " 389 1 Metcalf, 379 4 Cushing, 518 INDEX OF CASES. 291 VII.— Practice and Pleading, Greene «. Greene . Gardner v. Gardner Lucas V. Lucas Carley «. Carley . Newcomb v. Newcomb Little V. Little Denny v. Denny . Clark V. Clark Commonwealth v. Blood Fera «. Fera Lea V. Lea . Burlen ». Shannon Hubert ». Fera Allen V. Allen Adams v. Adams . Ford V. Ford Continued. 3 Gray, 361 3 " 434 3 " 136 7 " 545 13 " 38 18 " 264 8 Allen, 311 97 Massachusetts, 331 97 98 99 99 99 100 100 104 538 155 493 300 198 373 365 198 VIII.— Evidence. Mangue «. Mangue Baxter ». Baxter . Hill ». Hill . Holland v. Holland Eeemie ®. Eeemie Legg V. Legg Ellis V. Ellis Anonymous Billings V. Billings Little V. Little French v. French Shannon v. Shannon Donovan v. Donovan Hood v. Hood Foss V. Foss Southwick V. Southwick Clapp ». Clapp Bobbins v. Bobbins Ford V. Ford 1 Massachusetts, 341 1 " 346 3 " 150 3 " 154 4 " 586 8 " 99 11 " 93 4 Pickering, 33 11 " 461 13 Gray, 364 14 " 186 4 Allen, 134 9 " 140 11 " 196 13 " 36 97 Massachusetts, 337 97 " 531 100 " 150 104 " 198 IX.— Property, Legg D. Legg Barber v. Root Kriger v. Day Hunter ». Boucher Dean ®. Dean Dean v. Eichmond Page V. Estes Babcock v. Babcock Pierce v. Burnham Ames V. Chew Coffin V. Dunham Burlen v. Shannon Albee ®. Wyman . 8 Massachusetts, 99 10 " 360 3 Pickering, 316 3 5 5 19 33 4 5 289 " 438 " 461 " 369 " 61 Metcalf, 303 " 320 8 Gushing, 404 3 Gray, 387 ' 10 " 323 X.— Decrees of other States. Barber v. Root .... Hanover v. Turner Lyon V. Lyon 10 Massachusetts, 14 " 3 Gray, 367 260 337 292 LAW OF DIVORCE. X.— Decrees of other States. Continued. Chase v. Chase 6 Gray, 157 Smith V. Smith 13 " 309 Shannon v. Shannon 4 Allen, 134 Hood 1). Hood 11 " 196 Commonwealth «. Blood ■ , • ■ .97 Massachusetts, 538 Burlen v. Shannon 99 " 200 Simonds v. Simonds 103 " 573 XI.— Position of the Parties after a Decree, Commonwealth «. Putnam . West Cambridge v. Lexington Dean ■». Richmond Putnam v. Putnam Page .11. Estes Pierce v. Burnham Ames V. Chew Greene v. Greene . Albee v. Wyman . Thurston v. Thurston XII.— Alimony. 1 Pickering, 136 1 " 506 5 " 461 8 " 433 19 " 369 4 Metcalf, 303 5 " 330 3 Gray, 361 10 " 333 10 Allen, 376 99 Massachusetts, 39 Orrok v. Orrok 1 Massachusetts, 341 French ». French 4 " 537 Davol «. Davol . ' I3 n 333 Howard ®. Howard 15 " jgg Bursler «. Bursler 5 Pickering, 427 Morton v. Morton 4 Gushing, 518 Shannon v. Shannon 2 Gray 285 Baldwin a. Baldwin 6 " ' 341 Albee v. Wyman 10 " 332 Newcomb v. Newcomb . . . ! 12 " 28 Allen V. Allen 100 Massachusetts, 378 MICHIGAN. I.— Adultery. Shoemaker «. Shoemaker . . , II.-Cruelty. - Briggs V. Briggs III.— Desertion. Porritt V. Porritt IV.— Other Causes of Divorce. Porritt V. Porritt Porritt ®. Porritt ....." Dawson «. Dawson . . _ . [ Leavitt v. Leavitt . . ' . . 3 Clarke, 333 . 2 Clarke, 34 . 5 Jennison, 430 . 3 Jennison, 140 . 5 " 430 . 5 " 335 . 1 Meddaugh, 453 INDEX OF CASES. 293 v.— jTirisdiction and Domicile. Freeman «. Freeman 1 Manning, 480 VI.— Practice and Pleading. Goldsmith v. Qoldsmitli .' . . . .3 Cooley, 285 Shaw 11. Shaw 5 " 164 Leavitt «. Leavitt 1 Meddaugh, 453 Chaflfee «. Chaflfee 1 Jennison, 463 Robinson v. Robinson . . . . . .3 " 79 Shoemaker «. Shoemaker . ' . . . .3 Clarke, 323 Briggs V. Briggs 3 " 34 VII.— Evidence. Dawson v. Dawson 3 Jennison, 335 Briggs V. Briggs 2 Clarke, 34 VIII.— Legislative Divorce. Teft V. Teft 3 Gibbs, 67 IX.— Decree of another State. Perkins v. Perkins 8 Cooley, 456 X.— Alimony. Goldsmith v. Goldsmith 2 Cooley, 385 Perkins v. Perkins 8 " 456 Chaffee o. Chaffee 1 Jennison, 463 Chaffee v. Chaffee 2 >' 184 MmNESOTA. I.— Practice and Pleading. Belden ». Munger 5 Minnesota, 311 True V. True 6 " 458 Fagebank B. Fagebank 9 " 73 II.— Evidence. True «. True . ' . . '. . . .6 Minnesota, 458 III.— Property. Belden «. Munger 5 Minnesota, 311 MISSISSIPPI. I.— Adultery. Holmes «. Holmes .... Walker, 474 Tewksbury «. Tewksbury' . ' . . 4 Howard, 109 Carter v. Carter 14 Smedes & Marshall, 59 294 LAW OF DIVORCE. I. — Adultery. Continued. Armstrong ®. Armstrong Cocke ®. Hannum Shotwell «. Shotwell . PuUiam v. PuUiam 11.— Cruelty. Holmes v. Holmes Waskam v. Waskam . 3 George, 279 10 " 433 1 Smedes & Marshall Ch. 1 Freeman Ch., 348 51 Walker, 474 2 George, 154 III.— Desertion. Fulton 1). Fulton . Clark V. Slaughter IV.— Other Causes of Divorce. Howell V. Howell Waskam v. Waskam . v.— Jurisdiction and Domicile. Lawson v. Shotwell . Bankston v. Bankston Fulton 1). Fulton . Clark V. Slaughter Carson v. Carson Shotwell V. Shotwell . VI.— Petition or Libel. Lawson v. Shotwell . Plummer i>. Plummer . VII.— Practice and Pleading. Bankston «. Bankston . Lawson «. Shotwell Plummer v. Plummer . Shotwell ■». Shotwell . 7 George, 517 9 " 64 5 Cushman, 783 2 George, 154 5 Cushman, 630 5 " 693 7 George, 517 9 " 64 40 Mississippi, 349 1 Smedes & Marshall Ch., 51 5 Cushman, 630 8 George, 185 VIII.— Evidence. Tewksbury o. Tewksbury Armstrong v. Armstrong Fulton v. Fulton . IX.— Property. Holmes v. Holmes Tewksbury v. Tewksbury Carter ■». Carter . Lawson v. Shotwell Howell v. Howell Armstrong «. Armstrong Warner v. Warner Plummer v. Plummer . Clark V. Slaughter PuUiam v. Pulliam X.— Custody of Children. Cocke V. Hannum 5 Cushman, 693 5 " 630 8 George, 185 1 Smedes & Marshall Ch., 51 4 Howard, 109 8 George, 279 7 " 517 Walker, 474 4 Howard, 109 14 Smedes & Marshall, 95 5 Cushman, 630 5 " 783 3 George, 279 4 " 547 8 " 185 9 " 64 1 Freeman Ch., 848 10 George, 423 INDEX OF OASES. 295 XI.— Position of Parties after a Decree. Howell V. Howell ... 6 Cushman, 703 XII.— Alimony. .Holmes v. Holmes Tewksbury v. Tewksbury Lawson v. Shotwell Eankston i>. Bankston . Armstrong v. Armstrong Porter v. Porter . Shotwell V. Shotwell . Walker, 474 4 Howard, 109 5 Cushman, 630 5 " 693 3 George; 379 41 Mississippi, 849 1 Smedes & Marshall Ch., 51 MISSOUEI. I.— Adultery. Stokes V. Stokes 1 Missouri, 388 Eyau V. Ryan 9 "539 Cheatham «. Cheatham 10 "396 Nagle ». Nagle 13 " 53 O'Bryan v. O'Bryan 13 " 16 Harper v. Harper 8 Jones, 301 II.— Cruelty. Hooper ». Hooper 4 Bennett, 355 Bowers ■». Bowers 4 " 351 Doyle V. Doyle 5 Jones, 545 Twyman «. Twyman 6 " 383 III.— Desertion. Freeland v. Freeland 4 Bennett, 354 Hooper «. Hooper 4 " 355 Doyle V. Doyle 4 Jones, 545 Gillin waters v. Gillinwaters . . . . 7 " 60 Simpson v. Simpson 31 Missouri, 34 Yallaly v. Yallaly 8 "Whittelsey, 490 Hoffman «. Hoffman 3 Post, 547 IV.— Other Causes of Divorce. Rjim V. Ryan . , 9 Missouri, 539 Mansfield v. Mansfield 5 Jones, 163 v.— Jurisdiction and Domicile. stokes ®. Stokes 1 Missouri, 238 State D. Fry . 4 "120 Cheatham v. Cheatham 10 "296 Krause «. Krause 4 Jones, 68 VI.— Petition or Libel. Stokes ». Stokes 1 Missouri, 228 Cheatham v. Cheatham 10 " 296 Bowers v. Bowers 4 Bennett, 351 296 LAW OF DIVORCE. VII.— Practice and Pleading. Stokes V. Stokes . Kyan v. Ryan Nagle V. Nagle . O'Bryan «. O'Bryan Smith V. Smith . Oliver v. Oliver . Schmidt v. Schmidt Stevenson ». Stevenson Judge V. Judge . Coughlin V. Ehlert Yallaly v. Yallaly Hoffman «. Hoffman 1 Missouri, 228 9 " 539 13 " 53 18 " 16 5 Bennett, .166 5 " 261 5 Jones, 235 8 " 95 7 Whittelsey, 159 8 " 285 8 " . 490 3 Post, 547 VIII.— Evidence. O'Bryan v. O'Bryan 13 Missouri, 16 Bowers i). Bowers 4 Bennett, 351 Doyle V. Doyle 5 Jones, 545 Twyman 11. Twyman 6 " 383 Stevenson v. Stevenson 8 " 95 Harper v. Harper 8 " 301 Yallaly v. Yallaly 8 Whittelsey, 490 Hoffman v. Hoffman 3 Post, 547 IX.— Property. Lincecum i>. Lincecum 3 Missouri, 310 State B. Fry 4 " 130 Depas V. Mays 11 "314 Duncan v. Duncan 13 " 157 Wood V. Simmons 5 Bennett, 363 Richeson v. Simmons 6 Post, 30 X.— Custody of Children. Lincecum v. Lincecum 3 Missouri, 310 Lusk V. Lusk 7 Jones, 9i XI.— Position of Parties after a Decree. Mansfield v. Mansfield 5 Jones, 163 Richeson v. Simmons 6 Post, 30 XII.— Legislative Divorces. Bryson ■». Campbell 13 Missouri, 498 Bryson v. Bryson 3 Bennett, 590 Chouteau v. Magennis 7 Jones, 187 Bryson v. Bryson 3 Post, 333 XIII.— Alimony. Schmidt v. Schmidt 5 Jones, 335 Doyle V. Doyle 5 " 545 Simpson i). Simpson 31 Missouri, 34 Morton v. Morton 3 Whittelsey, 614 Coughlin V. Ehlert 8 " 385 INDEX OP CASES. 297 NEVADA. I.— Cruelty. Reed v. Reed 4 Helm, 469 II.— Desertion. Howe V. Howe 4 Helm, 395 III.— Property.— Practice.— Custody of Children. Howe 1). Howe 4 Helm, 395 IV.— Non-Age. Fitzpatrick v. ritzpatrick 6 Helm, 63 ISTEW HAMPSHIEB. I.— Adultery. Hall ». Hall 4 New Hampshire, 463 Washburn v. Washburn .... 5 " 195 Clark V. Clark 8 " 31 Frary v. Frary 10 " 61 Quincy v. Quincy 10 " 373 Master «. Master ....... 15 " 159 Adams ®. Adams 30 " 399 Whiter. White 45 " 131 Burgess v. Burgess 47 " 395 II.— Cruelty. Harratt v. Harratt 7 New Hampshire, 196 Fellows s. Fellows 8 " 160 Poor V. Poor 8 " 307 Whipple V. Whipple 43 " 335 III.— Desertion. F. B. F 1 New Hampshire, 198 Cram v. Cram 6 " 87 Fellows V. Fellows 8 " 160 Parsons v. Parsons 9 " 309 Smith V. Smith 13 " 80 Master ®. Master 15 " 159 Payson ®. Payson 34 " 518 Hopkins «. Hopkins 35 " 475 IV.— Other Causes of Divorce. Dyer v. Dyer 5 New Hampshire, 371 Greenlaw v. Greenlaw . . . .13 " 200 Keyes v. Keyes 3 Foster, 553 Bascomb «. Bascomb 5 " 367 Fitts V. Fitts 46 New Hampshire, 184 Martin ». Martin 47 " 53 298 LAW 05 DIVORCE. v.— Jurisdiction and Domicile. White B. White 5 New Hampshire, 476 Clavk D.Clark 8 " 21 Fellows V. Fellows 8 " 160 Frary v. Frary 10 " 61 Clark V. Clark 10 " 380 Smith «. Smith 13 " ,80 Greenlaw v. Greenlaw .... 12 " 200 Kimball v. Kimball 13 " 222 Batchelder D. Batchelder . . . . 14 " 380 Master v. Master 15 " 159 Frost V. Frost 17 " 251 Payson v. Payson 34 " 518 Hopkins v. Hopkins 35 " 474 Leith «. Leith 39 " 20 VI.— Petition or Libel. Washburn «. Washburn . 5 White V. White . . 5 Smith V. Smith . . 12 Greenlaw v. Greenlaw . 12 Kimball v. Kimball . . 13 Batchelder v. Batchelder . 14 Adams v. Adams . 20 Smith 1). Smith' . . 43 Whipple V. Whipple . . 43 White i>. White . 45 5 New Hampshire, 195 " 476 " 80 " 200 " 222 " 380 299 " 234 " 235 " 131 VII.— Practice and Pleading. Fellows V. Fellows . " Whipple D. Whipple Kimball ■». Kimball . Shannon ». Shannon Sheafe ». Sheafe VIII.— Evidence. Washburn b. Washburn Poor V. Poor Kimball v. Kimball . Batchelder «. Batchelder Adams v. Adams Corson o. Corson White V. White Burgess v. Burgess . IX.— Property. F. v.V. Sheafe o. Leighton Barker v. Cobb Weeks v. Hill Sheafe i>. Sheafe . Kimball v. Kimball Whittier ?). Whittier X.— Custody of Children. Dow «. Dow State v. Farrar 8 New Hampshire, 160 43 " 235 44 " 123 48 »' • ' 407 9 Foster, 369 5 New Hampshire, 195 8 " 307 13 " 223 14 " 380 30 " 399 44 " 587 45 " 131 47 " 395 1 New Hampshire, 198 36 " 240 36 " 344 38 " 199 40 " 516 44 " 133 11 Foster, 453 38 New Hampshire, 188 41 " 53 INDEX OP OASES, 299 XI.— Decree in another State. Leith V. Leith 39 New Hampshire, 20 XII.— Position of the Parties after a Decree. Dow «. Dow 38 New Hampshire, 188 XIII.— Costs. Morrison v. Hock 42 New Hampshire, 478 XIV.— Alimony. Parsons v. Parsons 9 New Hampshire, 309 Quincy v. Quincy 10 " 273 Sheafe v. Sheafe 36 " 155 Sheafe v. Leighton 36 " 240 Sheafe v. Sheafe 40 " 516 Shannon's Case 48 " 407 NBW JERSEY. I.— Adultery. Marsh v. Marsh 2 Beasley Ch. 381 Decamp v. Decamp 1 Green Ch., 294 Day V. Day . 3 " 444 Bray «. Bray 2 Halsted Ch. 506 Bray v. Bray 2 " 27 Snover v. Snover . 2 Stockton Ch. .261 Winship v. Winship 1 C. E. Greene,107 Adams v. Adams . 2 334 Jones V. Jones 2 " 351 Berckmans v. Berckman s 2 453 Jones V. Jones 3 " 33 Mills V. Mills 3 444 Clare v. Clare 4 " 37 Larrison «. Larrison 5 100 Derby ». Derby 6 " 36 Hedden v. Hedden 6 " 61 Mayer v. Mayer 6 " 246 Eeida.Eeid 6 331 II.— Cruelty. Clutch V. Clutch 1 Saxton. 474 Graecen ». Graecen 1 Green, 459 Bylandt «. Bylandt McEwen u. McEwen 2 Halsted, 28 3 Stockton Ch. ,286 Cook V. Cook 3 195 Marker «. Marker 3 256 Moores v. Moores . 1 C. E. Greene ,376 Fischer v. Fischer 3 " 300 Davis «. Davis 4 180 Thomas v. Thomas 5 " 97 Laing v. Laing 6 *348 300 LAW OP DIVOECB. III.— Desertion. Jennings v. Jennings Cook ». Cook . Yates V. Yates Conger v. Conger . Lewis V. Lewis Ford V. Ford . Martin v. Ma?tin . Marker v. Marker - Moore v., Moore Ansliutz i>. Anshutz Adams v. Adams . Goldbeck v. Goldbeck Eogers v. Rogers . Test V. Test . Hedden ». Hedden Laing ». Laing Woodworth v. "Woodworth Reid V. Reid . IV.— Jurisdiction and Domicile, Yule V. Yule Cory «. Cory Anshutz V. Ansliutz Winship v. Winship Groldbeck v. Goldbeck . v.— Petition or Libel. Snover v. Snover . Decamp v. Decamp Clutch V. Clutch Mills V. Mills .... Davis V. Davis . . . . VI.— Practice and Pleading. Miller v. Miller . . . . Richmond v. Richmond Amos V. Amos . . . . Yule V. Yule . . . . Anthony «. Anthony . Cory V. Cory .... Moore v. Moore .... Jones V. Jones .... Fischer «. Fischer Eogers v. Rogers .... VII.— Evidence. Miller v. Miller Clutch «. Clutch Day V. Day . Bray ». Bray Ford ffl. Ford Snover ®. Snover , Cook V. Cook ' Moore «. Moore Adams v. Adams Jones V. Jones Berckmans v. Berckmana Goldbeck v. Goldbeck . Fischer v. Fischer SBeasleyCh., 38 3 " 263 3 " 380 3 " 386 3 Halsted Ch., 33 3 " 543 4 " 563 3 Stockton Ch., 356 1 C. E. Greene, 376 1 163 3 334 8 43 3 445 4 343 6 61 6 348 6 351 6 331 3 Stockton Ch., 138 3 " 400 1 C. E. Greene, 162 1 " 107 3 " 43 3 Stockton Ch., 361 1 Green Ch., 294 1 Saxton, 474 3 C. E. Greene, 444 4 " 180 1 Saxton, 386 1 Green Ch., 90 3 " 171 3 Stockton Ch., 138 3 3 IC. 3 3 3 70 " 400 E. Greene, 376 " 33 " 300 " 445 1 Saxton, 386 1 " 474 3 Green Ch., 444 2 Halsted Ch., 50rf 3 " 543 3 Stockton Ch., 361 3 " 195 1 C. E. Greene, 376 3 " 334 3 " 351 3 " 453 3 " 43 3 " 300 INDEX OF CASES. 301 VII. — Evidence. Continued. Mills «. Mills 3 C. E. Greene 444 Clare v. Clare 4 37 Larrison v. Larrison . . 5 100 Derby «. Derby . 6 " 36 Hedden v. Hedden 6 " 61 Mayer v. Mayer . 6 246 Woodwortli V. Woodworth 6 351 VIII.— Property. Miller v. Miller 1 Saxton, 386 Bullock ». Zilley 1 " 489 Richmond «. Riclimond .... 1 Green Ch., 90 Marker «. Marker 3 Stockton Cb, 356 IX —Custody of Children. Yalentine v. Valentine 4 Halsted Ch., 219 X.- -Alimony. Miller v. Miller 1 Saxton, 886 Richmond ®. Richmond 1 Green Ch., 90 Decamp ii. Decamp 1 " 394 Amos ». Amos 3 " 171 Paterson v. Paterson . 1 Halsted Ch., 389 Ballentine v. Ballentine . 1 471 Bray v. Bray 3 37 Dougherty b. Dougherty 4 540 Martin v. Martin . 4 563 Yule V. Yule 3 Stockton Ch. ,138 McEwen v. McEwen . 3 " 286- Anthony ii. Anthony . 3 70 Marker «. Marker . 3 256 Cory V. Cory 3 400 Anshutz «. Anshutz 1 C. E. Greene ,162 Larrison v. Larrison . 5 100 IS^EW YOEK. I.- -Adultery. Johnson v. Johnson 14 Wendell, 637 Wait V. Wait 4 Comstock, 95 Cropsey v. Ogden 1 Kernan, 338 Forrest v. Havens 11 Tiffany, 469 Trust V. Trust . 11 Howard, 533 Mcintosh V. Mcintosh 13 " 389 Sweet ». Sweet . 15 " 169 Whitney v. Whitney . 33 " 175 Griffin v. Griffin 28 " 183 Cordier o. Cordier 26 " 187 McDonough v. McDonough 26 " 193 Henry ». Henry 27 " 5 Strong V. Strong 28 " 433 Amory v. Amory 33 " 490 Terhune v. Terhune . 40 " 258 Ralhbun v. Rathbun . 40 " 338 Morrell v. Morrell 1 Barbour, 318 302 LAW OP DIVORCE. I.— Adultery. Continued. Casey «. Casey 2 Barbour, 59 Morrell «. Morrell . . 8 " 236 Van Epps v. Van Bpps . . 6 " 320 Leseuer v. Leseuer . 31 " 330 R. F. H. ». S..H. . . 40 " 9 Myers ». Myers . 41 " 114 Cook fl. Cook . . 53 " 180 Hofl'man ii. HoflFman . 55 " 269 Ferguson i). Ferguson . . 3 Sandford, 307 Heyde «. Heyde . 4 " 692 Forrest v. Forrest . . 3 Bosvrorth, 661 Strong V. Strong . 3 Robertson, 719 Amory v. Amory . . 7 " 514 Monk «. Monk . 7 " 153 Clark V. Clark . 7 " 284 Hoffman v. Hoffman . 7 " 474 Pragmiori v. Pragmiori . . 7 " 302 Williamson «. Williamson . 1 Johnson Ch., 488 Pomeroy «. Pomeroy . 1 " 606 Betts v. Betts . . 1 " 197 Codd ». Codd . . 2 " 224 Miller «. Miller . 6 " 91 Germond ». Qermond . 6 " 347 Johnson v. Johnson . 6 " 163 Kirby v. Kirby . 1 Paige, 261 Peckford u. Peckford . 1 " 374 Graves 7>. Graves . . 2 " 63 Wood «. Wood . 2 " 108 Osgood V. Osgood . . 2 " 621 Cross V. Cross . 3 " 139 Smith n. Smith . 4 " 92 Johnson v. Johnson . 4 " 460 Valleau ». Valleau . . 6 " 207 Hofmire 11. Hofmire . 7 " 60 Dodge v. Dodge . 7 " 589 Pugsley B. Pugsley". . 9 " 589 Burr V. Burr . . 10 " 20 Eemvick v. Renwick . 10 " 420 Mulock V. Mulock . . 1 Edwards, 14 Johnson ». Johnson . 1 " 439 Hart «. Hart . . 3 " 307 Banta v. Banta . 3 " 395 Hanks v. Hanks . 3 " 469 Hanford v. Hanford . 3 " 468 Bokel -0. Bokel . 3 " 376 Kane «. Kane 3 " 389 Miller v. Miller 1 Sandford Ch., 103 Ferguson «. Ferguson . 1 Barbour Ch., 604 Von Aernam «. Von 'Aemam 1 " 375 Coolidge «. Coolidge 1 " 77 Cook V. Cook . 1 " 689 Gerard v. Gerard . 3 " 72 Jones !). Jones 3 " 146 Williams v. Williams 3 " 628 II.— Cruelty. Jackson v. Jackson 1 Johnson. 424 Johnson v. Johnson ' 14 " 637 Reynolds ®. Reynolds 3 Keyes, 368 Bissell ». Bissell 3 Howard, 243 Mcintosh V. Mcintosh . 13 " 289 INDEX OF CASES. 303 II. — Cruelty. Continued. Vence v. Vence P Henry v. Henry Solomon v. Solomon Reynolds v. Reynolds Davies v. Davies Terhune v. Terhune "Whispell ». Wliispell Calkins v. Long Linden v. Linden . Davies v. Davies Betz V, Betz . Solomon v. Solomon McNamara ®. McNamara Bedell ». Bedell . Pomeroy v. Pomeroy Turrell v. Turrell Barrere «. Barrere Van Veghten «. Van Veghten Perry v. Perry Smith V. Smith Johnson v. Johnson Germond «. Germond Burr V. Burr . Hopper «. Hopper . Mulock e. Mulock . Mason «. Mason Moulton V. Moulton III.— Desertion. 15 Howard, 497 24 27 28 84 87 40 197 5 518 446 45 258 Boubon ®. Boubon . Ahrenfeldt b. Ahrenfeldt Mix v Mix Denton v. Denton . 4 Barbour, 217 22 " 97 86 " 69 55 " 130 2 Robertson, 694 8 " 669 2 Hilton, 547 1 Johnson Ch.,604 1 " 606 2 " 391 4 , " 187 4 " 501 3 Paige, 501 2 " 492 4 " 460 4 " 648 10 " 20 11 " 46 1 Edwards, 14 1 " 278 2 Barbour Ch., 809 8 Robertson, 715 5 Edwards, 47 1 Johnson Ch., 108 1 " 364 IV.— Other Causes of Divorce. Baker v. People 2 Glinsman n. Glinsman 12 Griffin v. Griffin 23 Griffin v. Banks 24 ■Kinnier ®. Kinnier 85 Kock V. Kock 42 Appleton V. Warner 51 Kinnier v. Kinnier . ". . . . .58 . 4 . , 5 . 5 .■ . 6 . 9 . 1 . 1 Wightman v. Wightman Devenbagh v. Devenbagh Scott «. Shufeldt . Devenbagh v. Devenbagh Newell «. Newell . Mason v. Mason Borradaile ». Borradaile . Burtis «. Burtis ' . Ferlat v. Gojon North ». North Hill, 325 Howard, 33 188 " ■ 213 " 66 Barbour, 515 " 270 454 Johnson Ch., 843 Paige, 554 43 " 175 25 Edwards, 278 " 40 Hopkins, 557 " 478 Barbour Ch., 241 v.— Jurisdiction and Domicile. Forrest ®. Forrest 11 Smith, 501 Forrest «. Havens 11 Tiffany, 469 304 LAW OF DIVORCE. -Jurisdiction and Domicile. Kerr v. Kerr . Vence v. Vence McGiffert v. McQifFert Vischer v. Vischer . People V. Humphrey Prugnet v. Ptelps . Hoffman v. Hoffman Kinnier v. Kinnler . Williamson ». Parisien Palmer v. Palmer . Perry ». Perry Dunn V. Dunn Jarvis v. Jarvia McNeill V. McNeill Burtis V. Burtis VI.— Petition or Libel. Woods. "Wood Walton B.Walton . ~ Henry v. Henry Hoffman v. Hoffman Walton «. Walton . Myers v. Myers Heyde v. Heyde Monk V. Monk Pragmiori «. Pragmiori . Pomeroy v. Pomeroy Van Veghten v. Van Veghten Germond v. Germond Jolinson V. Johnson Eobertson v. Robertson . Smith ». Smith Kane v. Kane . Perry «. Perry Continued. VII,— Practice and Pleading. Forrest v. Forrest . Anonymous Walton «. Walton . Cordier v. Cordier . Strong V. Strong Amory v. Amory Hoffman v. Hoffman Morrell v. Morrell . Robinson v. Robinson Burdell v. Burdell . Morrell v. Morrell . Forrest u. Forrest . Leseuer 11. Leseuer . Walton V. Walton . R. F. H. V. S. H. . Myers «. Myers Singer v. Singer Atwater «. Atwater Shore v. Shore Ferguson i>. Ferguson Heyde v. Heyde Meldora v. Meldora 3 Hand, 373 15 Howard, 467 17 " 18 12 Barbour, 640 34 " 531 48 " 566 55 " 369 58 " 437 1 Johnson Oh., 387 1 Paige, 376 3 " 501 4 " 435 3 Edwards, 463 3 " 550 Hopkins, 557 8 Wendell, 357 20 Howard, 847 27 " 5 35 " 384 33 " 203 41 " 414 4 Sandford, 692 7 " 153 7 " 302 1 Johnson Oh., 606 4 " 501 6 " 347 6 " 163 8 Paige, 387 4 " 93 8 Edwards, 389 3 Barbour Ch., 385 11 5 30 26 38 33 35 1 1 2 3 10 81 83 40 41 41 53 2 3 4 4 Smith, 501 Howard, 306 347 187 " 482 490 384 Barbour, 318 27 473 " 236 " 46 " 830 203 9 " 114 " 189 " 631 Sandford, 715 " 307 " 693 " 731 INDEX OF CASES. 305 VII.— Practice and Pleading. Continued. Nioliolls V. NichoUs 3 Duer, 643 Forrest «. Forrest . . 6 " 103 Forrest v. Forrest . 3 Bosworth, 661 Simmons «. Simmons 3 Robertson, 643 Strong V. Strong 3 " 719 Strong V. Strong . 3 " 669 Strong V. Strong 4 " 631 Amory v. Amory . 6 " 514 McNamara v. McNamara 3 Hilton, 547 Denton v. Denton . 1 Johnson Ch., 364 Williamson v. Williamson 1 " 488 Codd V. Codd . 3 " 334 Lewis V. Lewis 3 " 519 Van Veghten v. Van Vegliten . 4 " 501 Palmer v. Palmer . . 1 Paige, 376 Kirby ■». Kirby . 1 " 565 Graves v. Graves . . 3 " 63 Wood ». Wood . 3 !' 108 Colvin «. Colvin . 8 " 385 Wood V. Wood 3 " 454 Lawrence ■». Lawrence . . 8 " 267 Robertson «. Robertson . . 3 " 887 Dunn «. Dunn . ^ . . 4 " 435 Smith V. Smith . 4 " 433 Devenbagh v. Devenbagh . 5 " 554 Laurie v. Laurie . 9 " 334 Pugsley V. Pugsley . 9 " 589 Burr V. Burr . . 10 " SO Hopper V. Hopper . . 11 " 46 Rose V. Rose . . 11 " 166 Stanford «. Stanford . 1 Edwards, 317 Monroy v. Monroy . . 1 " 383 Borradaile v. Borradaile . 1 " 40 Worden v. Worden . 3 " 387 Walgrove «. Walgrove . . 3 " 337 Van Cort v. Van Cort . . 4 " 630 Barry «. Barry Hopkins, 118 Von Aernam v. Von Aernam . 1 Barbour Ch., 375 Cook «. Cook . . 1 " 639 VIII.— Evidence. Ratcliff®. Wales 1 Hill, 63 Chamberlain v. People . 9 Smith, 85 Reynolds v. Reynolds . 3 Keyes, 368 Trust v. Trust 11 Howard, 533 Sweet V. Sweet 15 " 169 Carpenter v. Carpenter . 18 " 539 Griffin v. Griffin . 33 " 183 P .... 34 " 197 Henry v. Henry 37 " 5 Terhune «. Terhune 40 " 358 Rathbun ». Rathbun 40 " 338 Casey v. Casey 3 Barbour, 59 Whispell V. Whispell . 4 " 217 Van Epps v. Van Epps 6 " 320 Linden v. Linden 36 " 69 Hofl'man «. Hoffman 55 " 369 Purguson «. Furguson . 3 Sandford, 807 20 306 LAW OF DIVOKCB. VIII. — Evidence. Continued. Betz v. Betz Monk®. Monk Betts V. Betts Germond v. Germond Kirby v. Kirby Cross V. Cross Johnson i). Johnson Valleau ». Valleau Dodge ®. Dodge Pugsley i>. Pugsley Hopper 1). Hopper Muloch V. Muloch Hart V. Hart Banta v. Banta Hanks v. Hanks Hanford ®. Hanford Bokel v. Bokel Dobbs D. Dobbs Kane «. Kane Perrier «. Ferrier . Turney «. Turney . Van Cort v. VanCort Ferguson v. Ferguson Van Aernam v. Van Aernam Perry v. Perry Moulton «. Moulton 2 Robertson, 694 7 " 153 1 Johnson Ch., 197 6 " 347 1 Paige, 261 3 " 139 4 " 460 6 " 207 7 " 589 9 " 589 11 " 46 1 Edwards, 14 3 " 207 3 " 295 3 " 469 3 " 468 3 " 376 3 " 377 3 " 389 4 " 296 4 " 566 4 " 680 1 Barbour Ch., 604 1 " 875 3 " 385 2 " 309 IX.— Property. Bradshaw v. Heath Wait V. Wait Griffln v. Banks Meehan®. Meehan . Holmes «. Holmes . Forrest «. Forrest . Grain v. Cavana Watkins v. Halstead Forrest «. Forrest . Forrest v. Forrest . Forrest d. Forrest Turrell v. Turrell . Miller v. Miller ' . Palmer v. Palmer . Kirby v. Kirby Collins V. Collins . Van Duzer «. Van Duzer Vincent «. Parker Eenwick v. Renwick Miller v. Miller -Custody of Children, Paulding v. Wilson In rem Paulding . People V. Humphreys People V. Olmstead Burritt v. Burritt People V. Brooks Nicholls «. NichoUs 13 Wendell, 407 4 Comstock, 95 24 Howard, 213 2 Barbour, 377 4 " 295 10 " 46 36 " 410 3 Sandford, 311 6 Duer, 103 8 Bosworth, 640 9 " 686 3 Johnson Ch., 391 6 " 91 1 Paige, 276 1 " 261 2 " 9 6 " 366 7 H 65 10 " 420 1 Sandford Ch., 103 13 Johnson, 192 15 Howard, 167 24 Barbour, 531 37 " 9 29 " 124 35 " 85 8 Duer, 643 INDEX OF OASES. 307 X.— Custody of CMldren. Continued. Bedell ii. Bedell Codd B. Codd Barrere v. Barrere Collins ». Collins People V. Marc.ein Laurie v. Laurie Ahrenfeldt «. Ahrenfeldt Ahrenfeldt v. Ahrenfeldt Cook «. Cook XI.— Decrees of other States. Jackson B. Jackson Paulding v. Wilson Borden v. Borden Bradsliaw «. Heath Kerr v. Kerr McGififert v. McGiffert Whitney v. Whitney . Vischer v. Vischer HillB. Hill McGiffert®. McGiffert Hoffman ®. Hoffman Holmes v. Holmes Kinnier «. Kinnier Phelps V. Baker Dunn V. Dunn XII.— Position of Parties Ratcliff v. Wales Cropsey «. Ogden. Kinnier ». Kinnier . 1 Johnson Ch., 604 3 " 141 3 " 187 3 Paige, 9 8 " 47 9 " 334 5 Edwards, 497 3 Sandford, 493 1 Barbour Ch.," 639 1 Johnson, 434 13 " 493 15 " 131 13 Wendell, 407 3 Hand, 373 17 Howard, 18 33 " 175 13 Bcrbour, 640 38 31 55 57 58 60 4 Paige, 435 33 69 369 305 434 107 after a Decree. 1 Hill, 63 XIII.— Allowance, pendente Wood «. Wood Bissell v. Bissell Solomon v. Solomon Bissell V. Bissell Morrell ». Morrell . Kock V. Kock . Appleton B. Warner Forrest v. Forrest . Solomon v. Solomon Clark V. Clark Pragmiori v. Pragmiori Germond s. Germond Collins v. Collins Osgood V. Osgood . Lawrence ». Lawrence Germond v. Germond Laurie v. Laurie Rose «. Rose Wright '0. Wright . Smith ». Smith Stanford «. Stanford Robertson v. Robertson Saunders «. Saunders Purcell B. Purcell Worden v. Worden lite, 1 Kernan, 338 35 Howard, 66 8 Wendell, 357 3 Howard, 343 38 " 318 1 Barbour, 430 3 " 480 43 " 515 51 " 270 5 Bosworth, 672 3 Robertson, 669 284 303 7 7 " 1 Paige, 3 3 4 9 11 83 9 631 267 643 334 166 1 Edwards, 62 355 317 360 491 194 387 308 LAW OF DIVORCE. XIII.— Allowance, pendente lite Jarvis v. Jarvis Hammond v. Hammond Longfellow v. Longfellow Bartlett i>, Bartlett Lynde i). Lynde Kendall v. Kendall North V. North Gerard «. Gerard Jones V. Jones Williams v. Williams Continued. 3 Edwards, 462 1 Clarke, 151 1 " 344 1 " 460 3 Sandford, 373 1 Barbour Ch., 610 1 " 341 3 " 73 3 " 146 3 " 638 XIV.— Costs. Phillips V. Simons Graves v. Graves Wood V. Wood Robertson ». Robertson Mulock V. Mulock De Rose v. De Rose Kendall «. Kendall XV.— Alimony. Burr B. Burr Forrest «. Forrest . Carpenter ». Carpenter . Whitney v. Whitney McDonough v. McDonough Hollerman v. HoUerman Holmes ®. Holmes Calkins «.■ Long Atwater v. Atwater Hoffman v. Hoffman Phelps 1). Baker Halsted v. Halsted Forrest «. Forrest Forrest «. Forrest Forrest v. Forrest Boubon V. Boubon Mix V. Mix Denton ». Denton Bedell «. Bedell Lewis V. Lewis Miller e. Miller . Peckfordo. Peckford Graves ■». Graves Wood «. Wood Lawrence «. Lawrence Burr V. Burr Rose V. Rose Paffu. Paff Coolidge V. Coolidge 30 Howard, 342 2 Paige, 63 3 " 454 3 " 387 1 Edwards, 14 Hopkins, 100 1 Barbour Ch., 610 7 Hill, 207 11 Smith, 501 18 Howard, 539 22 " 175 36 " 193 1 Barbour, 64 4 " 295 22 " 97 ■ 53 " 621 55 " 369 60 " 107 5 Duer, 659 6 " 103 3 Bosworth, 661 8 " 640 3 Robertson, 715 1 Johnson Ch., 108 1 " 364 1 " 604 3 " 519 6 " 91 1 Paige, 274 2 " 62 2 '■ 454 3 " 267 10 " 20 11 " 166 Hopkins, 584 1 Barbour Ch., 77 INDEX OP CASES. 309 NOKTH CAEOLINA. I.— Adultery. Long V. Long Whittinston v. Whittington Moss V. Moss Wood V. "Wood . Hansley v. Hansley Foy V. Foy . Edwards «. Edwards Collier v. Collier . Earp ®. Earp Little V. Little II.— Cruelty. Wilson V. Wilson Harrisons. Harrison Everton v. Bverton Coble V. Coble Erwin v. Erwin . Joyner «. Joyner . III.— Desertion. Wood V. Wood . IV.— Other Causes of Divorce. Scroggins ». Scroggins Barden v. Barden- Johnson «. Kincade Crump o. Morgan Williamson v. Williams v.— Jurisdiction and Domicile. Collier v. Collier HoUoman v. HoUoman Johnson «. Kincade .... Schonwald v. Schonwald . VI.— Petition or Libel. Whittington v. Whittington Wilson v. Wilson Harrison v. Harrison Foy D. Fqy . Everton v. Everton Edwards v. Edwards Erwin ». Erwin . Joyner ». Joyner VII.— Practice and Pleading, Barden v. Barden Whittington v. Whittington Moss D. Moss Wood fl. Wood . Lynch v. Lynch . Schonwald v. Schonwald . 2 Hawks, 159 3 Devereux & Battle, 64 3 Iredell, 55 5 " 674 10 " 506 13 " 90 Phillips, 534 Devereux Bq. 353 1 Jones Eq. 339 63 North Carolina, 33 3 Devereux & Battle, 377 7 Iredell, 484 5 Jones Law, 303 3 Jones Eq., 393 4 " 83 6 " 333 5 Iredell, 674 3 Devereux, 535 3 " 548 3 Iredell Eq., 470 3 " 91 3 Jones Eq., 446 Devereux Eq. , 353 2 Devereux & Battle, 370 3 Iredell Eq., 470 3 Jones Eq., 367 3 Devereux & Battle, 64 3 " " 377 7 Iredell, 484 13 " 90 5 Jones Law, 303 Phillips, 534 4 Jones Bq., 83 6 " 333 3 Devereux, 548 2 Devereux & Battle, 64 3 Iredell; 55 5 " 674 Phillips Eq., 46 " 215 310 LAW OF DIVORCE. VII.— Practice and Pleading, Wood V. Wood . Crump V. Morgan Earp ». Earp Miles V. Miles Gaylord v. Gaylord Shearin v. Shearin State «. VIII.— Evidence. Hansley v. Hansley Johnson v. Kinoade Crump «. Morgan Earp V. Earp Continued. PhillipsEq.,538 3 Iredell Eq., 91 1 Jones Eq., 118 3 " 21 4 " 74 5 " 233 64 Korth Carolina, 255 10 Iredell, 506 2 Iredell Eq., 470 3 " 91 1 Jones Eq., 289 IX.— Property. Eogers b. Vines . Darden v. Joynes Calloway ». Bryan Williamson i>. Williams Gaylord «. Gaylord Gilmore «. Gilmore X.— Decree of another State. Irby V. Wilson .... 6 Iredell, 293 9 " 339 6 Jones, 569 3 Jones Eq., 446 4 " 74 5 " 284 1 Devereux & Battle Eq., 568 XI.— Position of Parties after a Decree. Calloway ». Bryan .... 6 Jones, 569 XII.— Alimony. Wilson V. Wilson Eogers v. Vines . Darden v. Joyner Taylor v. Taylor . Lynch v. Lynch . Schonwald i>. Schonwald Wood i>. Wood . Earp ®. Earp Erwin i>. Erwin . Gaylord i). Gaylord Shearin ». Shearin Little V. Little 2 Devereux & Battle, 377 6 Iredell, 293 9 " 339 1 Jones, 528 Phillips Eq., 46 215 " 538 1 Jones Eq., 118 4 " 82 4 " 74 5 " 233 63 North Carolina, 255 OHIO. I.— Adultery. Mattox V. Mattox Wilson V. Wilson Longstaff «. Longstaff Bryant v. Bryant . Burchet v. Burchet Scroggins v. Scroggins 2 Hammond, 233 Wright Ch., 128 " 148 156 " 161 " 212 INDEX OF CASES. 311 I. — Adultery. Continued. Scott ». Scott Dailey «. Dailey . Dunlap «. Dunlap Smith I). Smith Thorp V. Thorp . II.— Cruelty. Thorp V. Thorp Conn V. Conn Hansel «. Hansel Jones V. Jones Beatty ». Beatty III.— Desertion. Cox v. Cox . Amsden «. Amsden Milliner t. Milliner White V. White . Cossan v. Gossan . Roberts v. Roberts Wyatt «. Wyatt . Hesler «. Hesler . St. John ». St. John McQuaid v. McQuaid Reed v. Reed Clark V. Clark Guembell v. Guembell Brainard ». Brainard Johnston v. Johnston Frarell v. Frarell . Barnes ■». Barnes . Scott J). Scott Thompson v. Thompson Friend ». Friend . Leavitt n. Leavitt Smith B. Smith Mansfield v. Mansfield Dunbar v. Dunbar Van Voorhees v. Van Voorhees IV.— Other Causes of Divorce. Leavitt v. Leavitt Keith V. Keith TJtsler «. Utsler . Morris «. Morris . v.— Jurisdiction and Domicile. Mclntyre b. Mclntyre , Jacob «. Jacob VI.— Petition or Libel. Smith ». Smith Scott V. Scott Thompson ®. Thompson Friend v. Friend . Wright Ch. ,469 It 514 U 539 U 644 (I 763 Wright Ch. ,763 563 £( 312 (( 244 l( 557 9 Ohio State ,502 Wright Ch. , 66 (( 138 (( 138 ti 147 a 149 (t 149 (L 210 (( 211 It 223 (( 224 4( 235 (t 326 (t 354 (( 454 u 455 (( 475 l( 469 It 470 (t 639 (( 719 (1 643 ** 284 tl 386 (i 636 Wright Ch. 719 11 518 t( 627 (t 630 Wright Ch. 135 (( 633 Wright Ch., 644 469 &t 470 (( 639 312 LAW OF DIVOEOB. VI.— Petition or Libel. Continued. Mansfield v. Mansfield .... Dunbar ». Dunbar .... Van Voorhees v. Van Voorhees . Bird ». Bird Richards v. Richards .... Dunlap V. Dunlap .... VII.— Practice and Pleading. Mattox «. Mattox Harter v. Harter . Houpt «. Houpt . Cooper ». Cooper Bascom ». Bascom Piatt «. Piatt Loughery v. Loughery Benadum ». Pratt Tappan v. Tappan Parrish®. Parrish Price V. Price Stoutenberg v. Lybrand Reed v. Reed Cox ». Cox . VIII.— Evidence. Wilson 0. Wilson Brainard v. Brainard Bird v. Bird . Jones V. Jones Wolf®. Wolf Houpt V. Houpt . IX.— Property, Hamlin v. Beyans Mansfield ». Mclntyre . Loughery ®. Loughery Benadum ■». Pratt Lamkin v. Knapp X.— Custody of Children. Hoffman ». Hoflfman . XI.— Decrees of Other States. Cooper V. Cooper .... Mansfield «. Mclntyre XII.— Legislative Divorce. Bingham «, Miller XIII.— Alimony. Hamlin i). Bevans Piatt o. Piatt Reed ». Reed Van valley ». Vanvalley Cox ®. Cox . , . Wright Ch ,284 (( 286 i( 636 t£ 98 u 302 (( 210 2 Hammonc ,233 5 319 5 " 539 7 594 7 " 465 9 37 15 Ohio, 404 1 Ohio State ,403 6 64 9 " 534 10 316 13 " 228 17 " 563 19 " 502 Wright Ch. 128 11 354 t( 98 t( 155 (( 243 (( 156 7 Hammond, 161 10 Ohio, 27 15 " 404 1 Ohio State, 403 20 544 15 Ohio State, 427 7 Hammond, 594 10 Ohio, 27 17 Ohio, 445 7 Hammond, 161 9 37 17 Ohio State, 563 19 " 588 20 " 439 INDEX OP CASES. 813 XIII. — Alimony. Continued. Wilson «. Wilson . . . . Wright Ch., 138 Dailey v. Dailey . , , ' 514 Dunlap V. Dunlap 559 Amsden v. Amsden 66 Johnson v. Johnson 454 Bascom v. Bascom ' 633 Questel «. Questel ' 491 Martin v. Martin . 104 Wooley «. Wooley 345 Edwards v. Edwards ' 308 Dorsey v. Goodenow 120 OEEGON Practice. Rochester n. Rochester 1 Wilson, 307 PElS^NSYLYAlSriA. I.— Adultery. Garrat v. Garrat . 4 Yeates, 244 Commonwealth v. Addicks . 3 Sergeant & Rawle 174 Lodge V. Hamilton . 3 " 491 Andrews v. Andrews . 5 374 Light V. Light . 17 273 Light V. Light . 1 Watts, 263 Matchin «. Matchin . 6 Barr, 333 Graves v. Cole . 7 Harris, 171 Miltimore v. Miltimore . 4 Wright, 151 Hancock's Appeal . 14 P. 8. Smith, 470 II— Cruelty, Steele v. Steele 1 Dallas, 409 Thompson v. Thompson . . . . 3 " 138 Kinsey o. Kinsey 1 Yeates, 78 Carre ». Carre 2 " 307 Tiffin «. Tiffin 3 Binney, 303 Smith V. Smith 3 Sergeant & Rawle, 348 Klingenberger ®. Klingenberger . . 6 " 187 Robbarts v. Robbarts .... 9 " 191 Hollister v. Hollister .... 6 Barr, 449 Elmes«. Blmes 9 " 166 Jones V. Jones 3 Jones, 350 Vanleer v. Vanleer 1 Harris, 311 , Richards «. Richards .... 1 Grant, 389 Breinig v. Breinig 3 Casey, 161 Shoop's Appeal 10 " 333 Richards «. Richards .... 1 Wright, 335 Grove's Appeal 1 " 443 Gordon v. Gordon . . '. . .13 " 326 Jones V. Jones . 16 P. F. Smith, 494 314 LAW OF DIVORCE. III.— Desertion. Cunningham v. Irwin Wintercast v. Smith Eistine v. Ristine Finlc v. Hake . Allen V. Maclellan . Vanleer v. Vanleer Buffaloe i>. "Whitedeer Cattison «. Cattison Eshbach v. Esnbach Bishop V. Bishop Hoffman v. Hoffman Boyd's Appeal Kleinert v. Elilers . Hill's Admr's v. Hill Baily v. Baily Ingersoll v. Ingersoll Waldron v. Waldron Colvin V. Reed Angier v. Angler IV.— Other Causes of Divorce. Heffner v. Heffner .... Jane Parlcer's Appeal Cronise v. Cronise v.— Jurisdiction. Miller v. Miller Andrews v. Andrews Light «. Light Dorseyi). Dorsey Allen «. Maclellan Bishop V. Bishop Shoop's Appeal Gordon v. Gordon Cronise v. Cronise Colvin 4). Reed Reel ■». Elder VI.— Domicile. Dorsey v. Dorsey . McDermott's Appeal Hollister v. Hollister Buffaloe v. Whitedeer Bishop V. Bishop " . Gordon v. Gordon . Colvin V. Reed Reel V. Elder VII.— Petition or Libel. Steele «. Steele Garrat v. Garrat Klingenberger v. Klingenberger Light V. Light .... Brentlinger v. Brentlinger Hoffman v. Hoffman Grove's Appeal Hancock's Appeal . . 7 Sergeant & Rawle, 247 , 4 Rawle, 177 , 4 " 460 , 6 Watts, 131 3 Jones, 328 1 Harris, 311 3 " 183 10 " 275 11 " 343 6 Casey, 412 6 " 417 3 Wright, 341 3 " 439 6 " 198 8 " 274 13 " 349 5 P. F. Smith, 331 5 " 375 13 " 450 11 Harris, 104 8 Wright, 309 4 P. F. Smith, 255 3 Binney, 30 5 Sergeant & Rawle, 374 17 " 378 7 Watts, 349 3 Jones, 338 6 Casey, 412 10 " 233 12 Wright, 236 4 P. F. Smith, 355 5 " 375 13 " 308 7 Wright, 349 8 Watts & Sergeant, 351 6 Barr, 449 3 Harris, 183 6 Casey, 412 13 Wright, 236 5 P. F. Smith, 375 13 " 308 1 Dallas, 409 4 Yeates, 244 6 Sergeant & Rawle, 187 17 " 373 4 Rawle, 241 6 Casey, 417 1 Wright, 443 14 P. F. Smith, 470 INDEX OF CASES. 815 VIII.— Practice and Pleading. Anonymous Miller ». Miller Robbarts v. Robbarts Light V. Light . Brom V. Brom . Elmes V. Elmes Cattison v. Cattison . Miltimore v. Miltimore Baily v. Baily . Allison V. Allison Waldron «. Waldron Magill's Appeal IX.— Evidence. Richards v. Richards Matchin v. Matchin Elmes V. Elmes Jones V. Jones . Eshbach v. Eshbach Bishop V. Bishop Richards v. Richards Grove's Appeal Miltimore o. Miltimore Gordon v. Gordon . Roberts v. Roberts . Edmond's Appeal . May n. May Angiero. Angler X.— Property. Wintercast v. Smith . Fink«. Hake . Clark V. Clark . Boyd's Appeal Miltimore s. Miltimore Baily v. Baily Hettrick ■». Hettrlck . Colvin V. Reed . Swisshelm's Appeal Koenig's Appeal May V. May Reel V. Elder . XI.— Custody of Children. Kleinert v. Ehlers . XII.— Notice of Special Matter. Steele v. Steele Garrat v. Garrat Light V. Light . Cattison d. Cattison Breinig ®. Breinig Angler v. Angier 1 Yeates, 404 3 Binney, 30 9 Sergeant & Rawle, 191 1 Watts, 264 2 Wharton, 94 9 Barr, 166 10 Harris, 375 4 Wright, 151 8 " 274 10 " 323 5 P. P. Smith, 331 9 430 1 Grant, 389 6 Barr, 333 9 " 166 2 Jones, 350 11 Harris, 343 6 Casey, 413 1 Wright, 235 1 " 443 4 " 151 12 " 326 4 P. P. Smith, 265 7 333 13 306 13 450 4 Rawle, 177 . 6 Watts, 132 6 Watts & Ser jeant, 85 2 Wright, 341 4 " 151 8 " 374 5 P. P. Smith, 390 5 375 6 475 7 354 13 206 13 " * 308 3 Wright, 439 1 Dallas, 409 4 Yeates, 344 17 Sergeant & Rawle, 373 10 Harris, 375 2 Casey, 161 13 P. P. Smith, 450 316 LAW OF DIVOKOE. XIII.— Jury Trials. Carre v. Carre 3 Yeates, 207 Garrat «. Garrat 4 "244 Allison V. Allison 10 Wright, 333 Waldron «. Waldron . . . . 5 P. F. Smitli, 331 Magill's Appeal 9 " 430 Angler v. Angler 13 " 450 XIV.— Husband's Oflfer to Receive the Wife. Thompson v. Thompson .... 2 Dallas, 128 Kinsey v. Kinsey 1 Yeates, 78 Breinig v. Breinig 2 Casey, 161 McClurg's Appeal 16 P. F. Smith, 366 XV.— Effects of Reconciliation. McKarracher b. McKarracher . . .3 Yeates, 56 Tiffin i>. Tiffin 3 Blnney, 203 Hollister «. HoUister 6 Barr, 449 XVI.— Vacating the Decree. Boyd's Appeal 2 Wright, 241 XVII.— Legislative Divorces. Jones 9. Jones 2 Jones, 350 Cronise «. Eoberts v. Cronise 4 P. Roberts 4 F. Smith, 255 365 XVIII.— Construction of Acts of Assembly. Carre v. Carre . Miller v. Miller Smith V. Smith . . Klingenberger v. Kllngenberger RobbartsD. Robbarts Light V. Light . Ristine ». Ristine Light «. Light . Hollister v. Hollister Jones V. Jones . Bishop «. Bishop Hoffman v. Hoffman Shoop's Appeal Hill's Adm'r v. Hill Jane Parker's Appeal Gordon i>. Gordon . Cronise v. Cronis^ . Hettrick v. Hettrick ColviH V. Reed . May «. May Jones V. Jones XIX.— Costs. Robbarts v. Robbarts XX.— Alimony. McKarracher v. McKarracher . Tiffin V. Tiffin .... Cunningham v. Irwin Robbarts B. Robbarts . 3 Yeates, 207 . 3 Binney, 30 . 3 Sergeant & Rawle, 348 . 6 " 187 . 9 " 191 . 17 " 373 . 4 Rawle, 460 . 1 Watts, 364 . 6 Barr, 449 . 2 Jones, 350 . 6 Casey, 413 . 6 " 417 . 10 " 238 . 6 Wright, 198 . 8 " 309 . 12 " 236 . 4 P. P. Smith, 255 . 5 " 390 . 5 " 375 . 13 " 206 . 16 " 494 9 Sergeant & Rawle, 191 8 Yeates, 56 3 Binney, 302 7 Sergeant* Rawle, 347 9 " 191 INDEX OF CASES. XX. — Alimony. Continued. Clark «. Clark . Vanleer v. Vanleer Graves v. Cole . Breinig v. Breinig Shoop's Appeal Waldron «. Waldron McClurg's Appeal . 317 6 Watts & Sergeant, 85 1 Harris, 311 7 " 173 3 Casey, 161 10 " 333 5 P. F. Smith, 331 16 " 366 ERODE ISLAND. I.— Cruelty. Bro-wn v. Brown 3 Rhode Island, 381 II.— Jurisdiction and Domicile. Williams ■». Williams 3 Ehode Island, 185 Ditson V. Ditson 4 " 87 III.— Practice and Pleading. Brown v. Brown 3 Rhode Island, 881 Ditson V. Ditson 4 " 87 IV.— Property. Battey v. Battey 1 Rhode Island, 313 v.— Decree of another State. Ditson ■». Ditson 4 Ehode Island, 87 VI.— Alimony. Battey v. Battey 1 Rhode Island, 313 Sandford v. Sandford 3 " 64 SOUTH CAEOLII^^A. I.- -Cruelty. Jelineau v. Jelineau .... 3 Desaussure, 45 Prather «. Prather 4 " 33 Anonymous 4 " 94 Devall v. Devall . 4 " 79 Taylor v. Taylor . 4 " 165 Threewits v. Threewits 4 " 560 Williams d. Williams . 4 " 183 Ehame v. Rhame 1 McCord, 197 Hair v. Hair 10 Richardson Eq., 163 318 LAW OF DIVORCE. II.— Desertion. Greenland v. Brown Rhame v. Rhame . Hair ». Hair III.— Jurisdiction and Domicile. ' Jelineau ». Jelineau .... Prather i). Prather .... Rhame v. Rliame Hair o. Hair IV.— Practice and Pleading. Devall V. Devall . . . . v.— Evidence, Devall V. Devall . Taylor v. Taylor . Threewits v. Threewits Boyd V. Boyd VI.— Property. Buckner ®. Ruth . Greenland ». Brown Anonymous Threewits v. Threewits Hull V. Hull VII.-Custody of Children. Ex parte Hewitt .... Prather ». Prather .... Anonymous Williams v. Williams .... VIII.— Decree of another State. Hull V. Hull IX.— Alimony. Buokner «. Ruth Jelineau v. Jelineau Anonymous Prather v. Prather Anonymous Devall V. Devall . Taylor v. Taylor . Williams ». Williams Barrett v. Barrett Boyd V. Boyd Rhame v. Rhame Prince v. Prince Converse v. Converse Hair v. Hair Tliompson v. Thompson 1 Desaussure, 196 1 McCord, 197 10 Richardson Eq., 163 2 Desaussure, 45 4 " 33 1 McCord, 197 10 Richardson Eq., 163 4 Desaussure, 79 4 Desaussure, 79 4 " 165 4 " 560 Harper Eq., 144 13 Richardson Law, 157 1 Desaussure, 196 4 " 94 4 " 560 2 Strobhart Eq., 174 11 Richardson Law, 326 4 Desaussure, 33 4 " 94 4 " 1^3 3 Strobhart Eq., 174 13 Richardson Law, 157 2 Desaussure, 45 2 198 4 33 4 94 4 79 4 165 4 183 4 " 457 Harper Eq. , 144 1 McCord, 197 1 Richardson Eq., 283 9 535 10 163 10 416 INDEX OP CASES. 319 I.— Adultery. Thomas v. Thomas 2 Coldwell, 133 Cameron v. Cameron 2 " 375 Eichmond v. Richmond 10 Yerger, 343 II.— Cruelty. Payne v. Payne 4 Humphrey, 500 Shell V. Shell 2 Sneed, 716 Sharp V. Sharp 2 " 496 Thomas v. Thomas 2 Coldwell, 128 III.— Desertion. Stewart v. Stewart 2 Swan, 591 Rutledge ». Rutledge 5 Sneed, 554 IV.— Jurisdiction and Domicile. Fickle ». Fickle 5 Yerger, 203 Person v. Person 6 Humphrey, 148 Rutledge v. Rutledge 5 Sneed, 554 v.— Petition or Libel. Pillow e. Pillow 5 Yerger, 420 Hackney v. Hackney 9 Humphrey, 450 Stewart v. Stewart 2 Swan, 591 Hawkins v. Hawkins 4 Sneed, 105 VI.— Practice and Pleading. Sloan V. Cox 4 Humphrey, 75 Pillow V. Pillow 5 Yerger, 420 Richmond v. Richmond 10 " 848 Hawkins v. Hawkins 4 Sneed, 105 Sowder D. Sowder 5 " 502 Swan V. Harrison 2 Coldwell, 584 Owens D. Sims 3 " 544 Hackney v. Hackney 9 Humphrey, 450 VII.— Evidence. Shell 1). Shell 2 Sneed, 716 Thomas ». Thomas 2 Coldwell, 123 Cameron v. Cameron 2 " 875 VIII.— Property. Richardson ». Wilson 8 Yerger, 67 Chunn v. Chunn Meigs, 131 Wynne «. Speirs 7 Humphrey, 394 Robinson v. Robinson 7 " 440 McGhee v. McGhee 2 Sneed, 221 Sharp V. Sharp 2 " 496 Richard o. Wallace 4 " 405 Chenault v. Ohenault 5 " 248 820 LAW OF DIVORCE. IX —Position of Parties after a Decree. Sloan i). Cox 4 Humplirey, 75 Wynne v. Speirs ''' " ,o ^^^ Chenault v. ChenauU ...... 5 Sneed, 348 Klutts V. Klutts 5 " 423 Owens ». Sims 3 Coldwell, 544 X.-Costs. Thompson v. Thompson XI.— Alimony. Sloan «. Cox Richardson v. Wilson Chunn v. Chunn . Robinson v. Robinson McGhee v. McGhee Chenault v. Chenault Sowder «. Sowder Thompson «. Thompson Swan V. Harrison 2 Coldwell, 123 4 Humphrey, 75 8 Yerger, 67 Meigs, 131 7 Humphrey, 440 2 Sneed, 221 5 " 248 5 " 502 3 Head, 527 2 Coldwell, 534 I.— Adultery. Simons v. Simons . TEXAS. 13 Texas, 468 II.— Cruelty. Sheflaeld v. Sheffield 3 Texas, 79 Byrne v. Byrne 3 " 886 Wright ®. Wright 6 " 8 Nogees v. Nogees 7 " 588 Pinkard v. Pinkard 14 " 356 Camps. Camp 18 " 528 Taylor v. Taylor 18 " 574 III.— Desertion. Pinkard «. Pinkard 14 Texas, 356 Camp V. Camp 18 " 528 Besch V. Besch 27 " 890 IV.— Other Causes of Divorce. Lucas V. Lucas 2 Texas, 112 Robertson v. Cole 12 " 356 . Sherman «. Sherman 18 " 521 Camp i). Camp 18 " 528 v.— Jurisdiction and Domicile. Wright V. Wright 6 Texas, 3 Hare v. Hare 10 " 355 Fitts v. Fitts . . . . . . . 14 " 443 Simons v. Simons 23 " 344 INDEX OF OASES. 321 VI.— Petition or Libel. Wright V. Wright Byrne v. Byrne Wright V. Wright Nogees v. Nogee's 7 Hare v. Hare Moore v. Moore VII.— Practice and Pleading. Wright V. Wright Hare v. Hare Simons v. Simons Pinkard v. Pinkard Moore v. Moore Haygood v. Haygood Rice V. Rice Perden o. Dayis VIII.— Evidence. Wright V. Wright . Sheffield v. Sheffield Wright V. Wright . Simons «. Simons . Moore v. Moore Haygood v. Haygood IX.— Property. Byrne v. Byrne Wright V. Wright Pitts V. Pitts Trimble v. Trimble Hagerty v. Harwell Cartwright v. Cartwright Rice V. Rice . Simons «. Simons Rice V. Rice . Perden v. Davis Craig «. Craig X.— Alimony. Wright V. Wright . Wright v. Wright . O'Haley v. O'Haley 3 Texas, 168 3 " 336 6 " 3 7 " 538 10 " 355 23 *' 237 3 Texas, 168 10 " 355 13 " 468 14 " 356 32 " 237 25 " 576 31 " 175 31 " 488 3 Texas, 168 3 " 79 6 » 39 13 " 468 23 " 337 85 " 576 3 Texas, 336 7 " 526 14 " 443 15 " 18 16 " 663 18 " 636 21 " 58 23 " 344 31 " 175 81 488 81 " 303 3 Texas, 168 6 " 29 31 " 503 YEEMONT. I.— Adultery. Sanders v. Sanders 25 Vermont, 713 Nichols V. Nichols 31 " 328 II.— Cruelty. Langdon v. Langdon 35 Vermont, 678 Sanders v. Sanders . . ■ . . . .25 " 713 21 322 LAW OF DIVORCE. III.— Desertion. Hurlburt ». Hurlburt Jf '^"??'"'*' ^6 Mandigo v. Mandigo ic u ^11 Spafford v. Spafford jo „ ^^^ Jennings v. Jennings 1° „ ° .0 Powel V. Powel ^^ ^^^ IV.— Other Causes of Divorce. Barnes «. Wyethe fJ^'T""^^ oil Le Barron v. Le Barron ^^ t, ^ « Brainard v. Brainard „ ^Tf y*° V Norton v. Norton 3 Aiken, 88 v.— Jurisdiction and Domicile. Guild V. Guild 16 Vermont, 512 Le Barron «. Le Barron 35 " °°^ Buckminster «. Buckminster .... 38 " 248 VI.— Petition or Libel. Sanders v. Sanders 35 Vermont, 713 Philbrick v. Philbrick 27 " 786 Penjoce «. Goodrich 41 " 47 VII.— Practice and Pleading. Stearns v. Stearns 10 Vermont, 540 Spafford ». Spafford 16 " 511 Philbrick v. Philbrick 27 " 786 Penjoce v. Goodrich ...... 41 " 47 VIII.— Evidence. Mitchell V. Mitchell 11 Vermont, 134 Mandigo v. Mandigo 15 " 786 Manchester ». Manchester 24 " 649 Powel 11. Powel 29 " 148 IX.— Property. Mallock V. Stearns 9 Vermont, 326 Stearns v. Stearns 10 " 540 Hmiburt v. Hurlburt 14 " 561 X.— Custody of Children. Buckminster «. Buckminster . . . .38 Vermont, 248 XI.— Position of the Parties after a Decree. Gould V. Webster 1 Tyler, 409 XII.— Alimony. Harrington v. Harrington 10 Vermont, 505 Hazen ®. Hazen 19 " 603 Le Barron v. Le Barron 35 " 365 Buckminster 0. Buckminster .... 38 " 248 INDEX OF OASES. 323 VIKGINIA. I.— Desertion. Purcell «. Purcell 4 Hening & Munford, 507 Spencer v. Ford 1 Robinson, 648 II.— jTirisdiction. Purcell V. Purcell 4 Hening & Munford, 507 Jennings v. Montague .... 3 Grattan, 350 III.— Property. Browning ». Headley .... 2 Robinson, 340 Jennings v. Montague . . . .3 Grattan, 350 IV.— Alimony. Purcell V. Purcell 4 Hening & Munford, 507 Spencer v. Ford 1 Robinson, 648 WEST YIKGINIA. Cruelty and Property. Hitchcock «. Hitchcock 3 West Virginia, 435 WISCONSIN. I.— Adultery. Helden v. Helden 7 Wisconsin, 296 State B. Smith 19 " 531 Donovan v. Donovan 30 " 586 II.— Cruelty. Johnson v. Johnson 4 Wisconsin, 135 Skinner v. Skinner 5 "449 Pillar V. Pillar 33 "658 Shafer v. Bushwell 34 "373 Keeler B. Keeler 34 "583 III.— Desertion. Gleason v. Gleason 4 Wisconsin, 64 McCormick s. McConnick .... 19 " 173 Wards. Ward 30 " 353 Phillips «. Phillips 33 " 256 824 LAW OF DIVORCE. IV.— Jurisdiction and Domicile, Hubbell V. Hubbell Helden v. Helden State V. Smith In re Gill Shafer v. Bushwell Hall 11. Hall . v.— Petition or Libel. "Ward «. "Ward ' . VI.— Practice and Pleading. Helden v. Helden . McCormick'«. McCormiok Weatherbee o. Weatherbee E. «. E. ... VII.— Evidence. Johnson v. Johnson Gleason ». Gleason Skimmer «. Skinimer Helden v. Helden Hays V. Hays Ward V- Ward Phillips V. Phillips VIII.— Property. Briggs V. jBriggs . Donovan o. Donovan IX.— Custody of Children. Helden v. Helden X.— Decree of another State. Hubbell V. Hubbell XI.— Position of Parties after a Decree, State 1). Dudley Helden v. Helden . Briggs 11. Briggs . E. «. E. Weatherbee v. Weatherbee XII.— Alimony. Helden v. Helden Helden v. Helden Helden v. Helden State V. Smith In re Gill . Krause v. Krause 3 Wisconsin , 662 9 557 19 531 30 686 34 873 35 600 30 Wisconsin ,352 9 Wisconsin , 557 19 4( 172 30 (( 499 30 (( 331 4 Wisconsin 185 4 64 5 449 7 396 19 183 30 253 32 256 10 Wisconsin, 126 30 (( 586 7 Wisconsin 396 3 Wisconsin, 663 e. 7 Wisconsin, 664 9 (( 557 10 (( 126 30 it 381 30 (( 499 7 Wisconsin, 296 9 557 10 554 19 581 30 686 28 854 INDEX OF CASES. 325. UNITED STATES. I.— Jurisdiction and Domicile. Barber v. Barber Cheever v. Wilson .... II.— Practice and Pleading. Cheever v. Wilson .... McGowan v. Caldwell .... III.— Property. Cheever v, Wilson .... IV.— Decrees in diflferent States. Barber v. Barber .... 21 Howard, 582 9 Wallace, 109 9 Wallace, 109 ICranchC. C. R.,481 9 Wallace, 109 21 Howard, 582 v.— Position of Parties after a Decree. Cheever v. Wilson .... 9 Wallace, 109 VI.— Alimony. Barber v. Barber McGowan v. Caldwell Allen v. Allen . 21 Howard, 582 ICranchO. C. R.,481 Hempstead, 58 L IV. DECISIONS OF THE SUPREME COURT OF PENNSYLVANIA. I. DIVORCES A VINCULO MATEIMONII. Steele v. Steele, 1 Dallas 409. Notice should be given of the facts intended to be proved under the general allega- tions of the libel. The court recommended that notice should be given, that between' two specific dates, acts of cruelty, etc., were intended to be proved. Anonymous, 1 Teates 404. On issuing subpoenas in cases of divorce, a rule may be made to take depositions before the return thereof. Gakrat v. Garrat, 4 Yeates 244. Consent is requisite to withdraw a juror, where the issue in divorce is adultery. The libellant may suffer a nonsuit, with leave to move to have it set aside. It is not indispensably necessary that the particeps criminis in adultery be named. Sufficient to state " with E. P. and other persons to the libellant unknown." If their names be subsequently known, written notice of them and of times and places should be given to the re- spondent without requisition. If the names be unknown, then the times, places, and attendant circumstances should be contained in the specification, aliter, the complainant should be precluded from giving particular instances in evi- dence on the trial under a general charge. Miller v. Miller, 3 Binney 30. Causes of divorce and alimony are, in general, not cognisable in common law courts. Jurisdiction was first given to the Supreme Court 328 LAW OF DIVORCE. by the act. of Sept. 19, 1785. The same jurisdiction was extended to the Courts of Common Pleas by the act of April 2, 1804, and this act provides, that after final sentence, either party may appeal to the Supreme Court. The proceedings are not according to the course of the .common law. On an appeal, the matter is taken up de novo and new evidence is admitted. • This could not be done under a writ of error, hence the writ does not lie to the final sentence of the Com- mon Pleas therein, but merely appeal. (Aflirmed in Allen V. Maclellan, 2 J. 332.) Andrews v. Andrews, 5 Sergeant & Eawle 374. An appeal to the Supreme Court lies from a decree for a divorce made by the Court of Common Pleas in pursuance of a verdict. The Supreme Court will not on such appeal, re-try the mat- ters of fact decided by the jury in the court below. Cunningham v. Irwin, 7 Sergeant & Eawle 247. The husband is not exempted from liability for necessaries furnished to his wife pending a libel by her against him for a divorce. She is his wife until the decree of divorce is pronounced, and it is his duty to support her. Light v. Light, 17 Sergeant & Eawle 273. By the act of 1815, jurisdiction in divorce cases is vested exclusively in the Courts of Common Pleas, subject to review on appeal to the Supreme Court. Bail on the appeal is directed to be taken before one of the judges of the Court of Common Pleas, with at least one surety, and the judges of the Supreme Court are to transmit the record with their judgment to the Court of Common Pleas. The Circuit Courts have no jurisdiction whatever in cases of divorce. In a libel for divorce, if the libellant, upon request, fails to give notice of the facts intended to be proved under the general allegations of the libel, he cannot supply the omis- sion at the trial by having the libel amended. ( Vide Light V. Light, 1 W. 264.) "Winteroast v. Smith, 4 Eawle 177. In this case a legacy was left to a feme covert, whose husband had deserted her, DIVORCES A VINCULO MATRIMONII. 329 and from whom she was subsequently divorced. After the divorce, the executors refused to pay her the legacy, alleging that the husband alone was entitled to it, although he had never claimed it, and it was uncertain whether he was living or dead. The court held that the woman was entitled to recover. EiSTiNE V. EiSTiNB, 4 Rawle 460. Where the libel for a divorce is founded upon wilful and malicious desertion on the part of the defendant, it is no bar to the action, to prove that the plaintiff" committed adultery after the desertion occurred. If the adultery, had been committed while the parties lived together, it would be a reasonable cause for desertion. The act of March, 1815, declares, that adultery committed by the plaintiff" shall be a good defence, and a perpetual bar against his obtaining a divorce in any case where he sues for it, on account of adultery committed by the defendant. The legislature confines this defence to the single case of a divorce sued for on account of adultery alleged to have been committed by the defendant, and it is not available in any other case. Light v. Light, 1 Watts 263. {Vide Idem v. Idem, 17 S. & E. 273.) A wife may file her bill under the act of 1815 for a divorce a vinculo, or under that of 1817 for alimony, at her election. Fink v. Hake, 6 Watts 131. This case affirms the decision in 4 E. 177, quod vide. The debt of a husband contracted with his wife's father during coverture, cannot be set off after a divorce, against the distributive share of the wife in her father's estate, although the decree of divorce was sub- sequent to the death of the intestate. This distributive share is a mere chose in action ; and the administrators could only allege the set-off where the hus- band before divorce had asserted his right to recover. This he never did, and the divorce forever bars him from claiming it, and the wife is entitled to recover, as if she never were married. Vide Hake v. Tink, 9 W. 336. 330 LAW OF DIVORCE. Dorset v. Dorset, 7 Watts 349. In cases of divorce, there is an irreconcilable difference between the decisions of the English and of the Scottish courts. The English judges acknowledge the legitimacy of no jurisdiction, which is not founded on the law of divorce at the place of marriage, if it be an English one, while the Scottish in the other extreme are willing to found theirs even on a temporary residence of the complainant in the country of the former. The fallacy of the Scotch judges consists in their assumption, that divorce is a penalty everywhere impliedly annexed to a breach of the marriage contract, which like a civil cause of action attendant on the person, may be enforced everywhere. The English doctrine is, that the dissolution of an English marriage, for any cause whatever, can be effected, so as to be acknowledged in that country, only by English authority. "With us, while the parties remain subject to our jurisdiction, the marriage is dissolvable only by our law ; when they are remitted to another, it is incidentally remitted along with them. By sanctioning the transfer, we consent to part with the municipal governance incident to it, but with this limi- tation, we part not with the remedy for past transgression. On any other principle, an offending husband might, by a change of domicile, elude the vigilance of the law. The law of divorce is rather a part of the criminal than the civil code. Not only does jurisdiction belong to the courts at the place of the domicile, but the retribution must be meted by their measure. The law of the domicile at the time and place of the injury is the rule for everything but the original obli- gation of the marriage. Brom v. Brom, 2 "Wharton 94. An appeal from the decree of a Court of Common Pleas will be dismissed, unless a recognizance have been entered, with at least one good surety. Matohin v. Matchin, 6 Barr 332. A wife's insanity is not a bar to a divorce for adultery committed by her when she was insane, although it would be a defence to an indict- ment for the crime. Neither the canon law nor our own statute makes any DIVORCES A VINCULO MATRIMONII. 331 distinction as to sex ; but that the legislation of England is guided by an opposite principle, is proved by its readiness to divorce for the adultery of the wife, and its reluctance to divorce for' the adultery of the husband. There have been but two instances of the latter, and in each of them the offence was marked with circumstances of brutality. The distinction is said to be preserved in the laws of many other countries, and though it is not expressly preserved in the application of the remedy under our own, we may conclude that insanity might be a bar to a divorce at the suit of the wife, when it would not, in similar circum- stances, be a bar to a divorce at the suit of the husband. Adultery committed under the influence of nymphomania or erotic mania would certainly be a ground for divorce, though not of indictment. It is a rule of policy, not to found a sentence of divorce on confession alone. Yet, where it is full, confidential, reluc- tant, free from suspicion of collusion, and corroborated by circumstances, it is ranked with the safest proofs. It is a fundamental rule, that it is not necessary to prove the direct fact of adultery, for being committed in secret, it is seldom susceptible of proof, except by circumstances, which, however, are sufficient, whenever they would lead the guarded discretion of a reasonable and just man to a conclu- sion of guilt. On this principle, a wife's visit with a man to a brothel, or to a man at his lodgings, has been held suf- ficient proof of it, because it is impossible to assign an inno- cent motive for such a meeting. Elmbs V, Elmes, 9 Barr 166. After a decree for divorce, depositions taken on the part of the respondent in the Court below, cannot be read on hearing of the appeal. To render the condition of a wife intolerable and her life burdensome, it is not necessary that there should be blows, or cruel and barbarous infiiction of batteries that endanger her life. There may, without that, be such indignities to her person as to render her life a burden. The husband is bound to the observance of duty to his wife, and as mar- riage is founded on the original constitution of the sexes, and dignified by strong and peculiar sentiments of affection, 332 LAW 01' DIVORCE. delicacy and honor, all treatment which violates these prin- ciples, habitually and constantly, and proceeds avowedly from hatred, revenge and spite, and which renders even the hours devoted to repose, hours of weeping and distress, must render a woman's condition intolerable and her life burden- some. Allen v. Maclellan, 2 Jones 328. The Court of Common Pleas have the power to vacate a decree of divorce, entered at a previous term, where it was obtained by fraud on the court, although a marriage had been contracted subsequent- ly on the faith of such decree, with a party thereto, and issue born. The order to vacate would be only erroneous and un- impeachable after the expiration of the period for reversing it by appeal. Jones v. Jones, 2 Jones 350. In England, Parliament has frequently annulled the contract of marriage for adultery. But Parliament is a court, and as such proceeds with the utmost circumspection, examines witnesses to prove the adultery, and where the guilty party has left the realm, re- quires that there shall also have been a trial in the common law courts for criminal conversation and damages recov- ered, and also that a sentence of divorce in the spiritual court should have been decreed, which can only divorce a mensa et thoro ; hence the necessity of the intervention of Parliament to divorce a vinculo. But in this State, the legislature seems to have acted on the ground that it was an exercise of legislative power, and therefore not requiring a judicial examination. We think, however, that this doctrine may be well questioned. However questionable the power of the legislature in granting divorces may have been under the constitution of 1790, the amended constitution of 1838 did expressly pro- hibit its power by the legislature, wherever the courts then had or should thereafter be vested with power. The legislature has therefore a limited power, with an express prohibition outside of the limitation. The courts have now power to decree a divorce in almost every case, where a divorce is justifiable. DIVOKCES A VINCULO MATRIMONII. 333 The defendant below has a right to establish, by evidence, that the act was passed for a cause over which the courts had jurisdiction, and that the court of some county, on a fair trial between the parties, had given judgment against the plaintiff, and that therefore the legislature had no juris- diction or power to grant the divorce. This would not be so, if the act or a preamble thereto had specified, that the divorce was granted for a cause, for which the court had no power to grant a divorce. Evidence is not admissible to show that the ^divorce was obtained by fraud or falsehood, or that a member of the legislature misrepresented the facts. Yanlebr v. Vanleer, 1 Harris 211. A bond given by a husband to the guardians of the poor, conditioned for the support of his wife, who had left his house, is a bar to his proceedings in divorce for wilful and malicious desertion, under the act of 1815. BuFPALOE V. "Whitedeer, 3 Harris 182. A female who has a settlement, exchanges it at her marriage for the settle- ment of her husband, if he have one — if he have none, her maiden settlement remains till she acquires another. She will not lose her husband's settlement by a divorce a vinculo on her application. Graves v. Cole, 7 Harris 171. When the wife has no separate support, she must be subsisted, and is entitled to her necesssary costs pendente lite, for divorce. She is not obliged to await the result of the suit. The court, from time to time,may make the proper allowance, according to the circumstances. Cattison v. Cattison, 10 Harris 275. "Where the respond- ent's answer justifies the desertion, by alleging barbarous treatment on the part of the libeliant, the latter is entitled to demand specifications of time, place and circumstances before joining issue, but may waive the right by putting in a general replication, denying the respondent's statements and demanding a jury. 334 LAW OF DIVOECE. Where the court below expressed no opinion on the mer- its, and were not asked to do so, the omission is not assign- able for error, for it has often been ruled that want of direc- tion, not asked for, is not error. EsHBACH V. EsHBACH, 11 Harris 343. The reasonable cause which would justify a wife's desertion and abandonment of her husband, must be such as would entitle her to a divorce. The law requires acts to be proved, of which declarations may be part ; but mere declarations, especially when incon- sistent with all the acts in evidence, can never be ground for justifying desertion. Kor is the fact that the husband lay in a separate bed an act of cruelty. IsTor is the inten- tion, however distinctly avowed, to obtain the wife's pro- perty, a reason for separation, if there be nothing done to render her condition intolerable and life burdensome. Bishop v. Bishop, 6 Casey 412. In this case the libellant is a resident of Pennsylvania, where his wife has never lived. The complaint is for desertion. In England, it is not a cause of divorce, while in Scotland it is. In England, Parliament alone has the power of granting divorces, and for the cause of adultery. The respondent having always lived in England, a divorce granted here for her desertion would have no binding effect in that country. Some writers deem it to be against the comity of nations to grant divorces ' in contravention of the lex loci contractus. In a proceeding for divorce on the ground of desertion, it is not sufficient for witnesses to testify, that the respondent wilfully and maliciously deserted the libellant in the words of the statute. Facts must be proven, showing that such desertion has taken place, and that it was wilful and ma- licious. The refusal of a wife to accompany her husband to a foreign country is not, in itself, a wilful and malicious de- sertion, within the meaning of the act. Our courts have no jurisdiction to decree a divorce, on the ground of desertion, where the marriage and alleged desertion took place in a foreign country, and the defendant never was within the j urisdiction. DIVOKCES A VINCULO MATRIMONII. 335 The act of 26th April, 1850, giving jurisdiction on the ground of desertion, -where the parties at the time of the occurrence were domiciled in any other State, applies only to parties domiciled in one of the United States. Hoffman v. Hoffman, 6 Casey 417. (Affirms Garratt v. Garratt, 4 Y. 244 ; Steele v. Steele 1 D. 409 ; and Lights. Light, 17 S. and E. 273.) A libel for divorce must set forth parti- cularly and specially the causes of complaint ; it is not suf- ficient under the act of 8th May, 1854, to allege, in general terms, that the marriage was procured by fraud, force and false representations. It seems that such defect in the libel may be cured by filing a specification of the facts intended to be proved. A libel is defective, which is not sworn to in the form prescribed by the act of 13th March, 1815, viz., that the facts set forth therein are true to the best of the libellant's know- ledge and belief, and that the complaint is not made out of levity or by collusion between the said husband and wife, and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes men- tioned in said petition or libel. Shoop's Appeal, 10 Casey 283. Under the act of 8th May, 1854, the Courts of Common Pleas are empowered to grant a decree of divorce for three new causes, the third of which is cruel or barbarous treatment of the husband by the wife, by which the condition of the husband is rendered intolera- ble or his life burdensome. In this enactment is added the proviso, that in cases of divorce under this act, if the application be made on the part of the husband, the court shall allow such support or alimony to the wife as her husband's circumstances will admit of, and as the said court may deem just and proper. This act does not empower the court to decree a divorce a mensa et thoro in favor of the husband, but only a vinculo. Throughout this whole system of legislation, there has been no intention to place the husband and wife in the same position, so far as relates to this cause of divorce. 336, LAW OF DIVORCE. But the husband cannot he decreed to pay costs, where he is successful in obtaining a divorce. Boyd's Appeal, 2 "Wright 241. (Affirms Allen v. Maclel- lan, 2 J. 328.) The Court of Common Pleas may vacate a decree of divorce obtained within the year, where there is clear proof of imposition havitig been practised on the court by the libellant. The death of the libellant in the mean- while, will not prevent the court from vacating such wrong decree, even though the rights of devisees under the libel- lant's last will should be affected thereby. The divorce itself was fraudulently obtained by the libel- lant, who, first having induced his wife to absent herself from him for two years on a visit to friends in Kentucky, then brought an ex parte action against her, alleging wilful and malicious desertion on her part, he meanwhile directing her not to return to him. The court subsequently revoked letters of administration previously granted to Boyd, and granted them to the widow, whose rights were restored by the vacation of the decree of divorce. Kleinert v. Ehlers, 2 Wright 439. This action was brought to test the legitimacy of children. "Where the question of such Jegititaa'cy is raised, it is not error in the court to submit to the jury all the evidence of access on the part of the husband with the record of divorce, and to de- cline to charge them, that the divorce was a judicial deter- mination as to separation for two years, which, with evidence of their separate residence, rebutted the legal presumption of access. The record of divorce concluded only the desertion of the wife, not the non-access of the husband, and did not estop the children from claiming legitimacy. Miltimore v. Miltimorb, 4 "Wright 151. This was an action of dower brought by a woman, who had been di-- vorced upon her. own application seven years before, on the ground of the adultery of her husband. The court held that the wife was estopped by her own DIVORCES A VINCULO MATRIMONII. 337 actions from showing any irregularity in the proceedings in divorce. Such irregularity was voidable and not void, where the court had jurisdiction of the matter and of the parties, and should have been objected to in time, and by a party who had a right to object. The decree entered could only be removed for error by a direct proceeding for that purpose and not collaterally. The court rejected evidence on the part of the wife to prove fraud in obtaining the decree, to which fraud she necessarily was a party. " Nemo allegans suam turpitudinem" is a legal maxim which forbids such attempt. The demandant is not entitled to dower, where an unre- versed decree of divorce a vinculo exists. All the duties, rights and claims of the parties in presence of the marriage, cease and determine with the divorce. The only distinction in a divorce decreed for adultery is the provision, that the guilty party shall not marry the par- amour during the life of the former husband or wife. With this restriction, a divorce a vinculo works the same effect as. the death of either party. It is an entire separation. In Scotland, the prohibition is unlimited. In England, adultery was only a cause of divorce a mensa. It is an axiom of the English law, that marriage is indissoluble. A decree a vinculo is therefore only pronounced there for some canonical or legal disability, existing prior to the contract. Hill's Adm'rs v. Hill, 6 Wright 198. Where a divorce has been decreed on the ground of desertion, the second mar- riage of the wife with a man who had adulterous connection with her during her first marriage, is legal. It is only in- valid, where the divorce was decreed on the ground of adul- tery, and where the second husband had been the particeps criminis. Bailt v. Baily, 8 Wright 274, The legal assertion of a right acquired by a decree of a court having jurisdiction, will estop the party from all proceedings thereafter to invalidate the decree, under which the asserted right has been claimed. This action was an appeal by the wife from the decree of the court below, dissolving a marriage on the ground of the 22 338 LAW OF DIVORCK. desertion of the wife. Subsequent to the decree, the wife brought an action of replevin against her former husband for goods which were in his possession, belonging to her, and obtained judgment against him. Held, that this -was an estoppel in pais of all appeals to vacate the decree of divorce. It is not the record that estops in such cases, but it is the repugnant rights claimed in the case, which the record proves to exist, that works an estop- pel in pais. Jane Paeker's Appeal, 8 "Wright 309. Question of incest raised, the marriage having been consummated between an uncle and niece. By the laws of the province in 1682, any person convicted of incest, which is uncleanness betwixt near relations in blood, shall forfeit one-half of his estate, and shall suffer one year's imprisonment in the house of cor- rection, at hard labor, and for the second offence imprison- ment for life. By the law of England, the intermarriage of uncle and aunt with nephew and niece is prohibited. The act of 1705 forbade such marriage, and declared it void, and gave the Governor power to dissolve the marriage. The parties were fined to one-third the value of their es- tates. By the act of 1818, all marriages within the degree of consanguinity or affinity are void, and the Courts of Com- mon Pleas may grant divorces on such grounds, and the par- ties shall be subject to the penalties against incest, but when any of such marriages shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be inquired into after the death of either the husband or wife. This placed such marriages upon the same footing as in England. They are not void but voidable. By the act of 31st March, 1860, if any person shall inter- marry within the degrees of consanguinity or affinity, he or she shall on conviction be sentenced to pay a fine not ex- ceeding $500, and to undergo an imprisonment by separate or solitary confinement at labor, not exceeding three years, and all such marriages shall be declared void. The court DIVORCES A VINCULO MATRIMONII. 339 declined to express an opinion on the effect of tlie last clause. Ingersoll v. Ingersoll, IB Wright 249. Separation is not desertion. Desertion is an actual abandonment of mat- rimonial cohabitation, with an intent to desert, wilfully and maliciously persisted in, without cause, for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other. Thus where, on the inability of a husband to support his wife, they separate voluntarily, and she returns to her rela- tives, with his acquiescence, such separation is not desertion on the part of either. Poverty, idleness, unthriftiness are great evils when they drive a wife into separation from her husband, but they must not be mistaken for the high crime of malicious desertion. Cronisb v. Cronise, 4 P. F. Smith 255. (Affirms Jones v. Jones, 2 J. 850.) This case involves the question of the power of the legislature to grant divorces. In the amended constitution of 1836, in section 14 of article I : " The legis- lature shall not have power to enact laws annulling the con- tract of marriage in any case, where by law, the courts of this Commonwealth are, or may hereafter be empowered to decree a divorce." It may be said, the absolute character of a law forbids inquiry into the^ grounds of legislation. But the answer is, that the grant of this power being limited in the constitution to certain grounds, an inquiry into them is a necessary duty under the bill of rights, to prevent injus- tice. If the boundary of a limited power be overstepped by the legislature, its act is void and must be inquired into. If, because no ground is cited, we refuse to inquire into the ground, we fail in an enjoined duty. * A special divorce act is an exercise of legislative poweflt and prima facie is founded on sufficient cause, not within the jurisdiction of the courts; this cause is inquirable into as a fact, when not set forth in the act. The actual relations between husband and wife presented 340 LAW OF DIVORCE. to the legislature as grounds of divorce, are the subjects of proof as other facts are. In this dase, the former husband entrapped his wife into marriage, as she alleged, by deceit, expecting to realize money therefrom ; failed in business within a month subse- quently, after having been guilty of dishonest practices which led to his arrest, and finally left the State secretly to avoid his creditors, though with his wife's knowledge and assent. These facts do not constitute the fraud meant by the act of 1854. It is not pecuniary motives or delusive promises of wealth, position and the like, which are the procuring fraud contemplated by the act. The act refers not to a marriage merely, but an alleged marriage; the three procuring causes of which are fraud, force and coercion, and in which the mental assent of the injured party is wanting. The very act of marriage itself must be tainted by fraud, and if not confirmed by the in- jured party, the alleged marriage may be set aside by the court. In the .above case there was no wilful desertion, but a flight from creditors. The husband left with his wife's full assent. The ground of relief was, therefore, legislative, and not judicial, and the special act of divorce was valid. Waldron v. Waldron, 5 P. F. Smith 231. Where an issue to try facts in divorce is asked, the court may direct the form of the issues, and require the other party to join therein, full opportunity being given for the production of proof of facts alleged. A jury trial may be had on the issue framed by the libel and answer, but in such case, notice of special matter in- tended to be ^iveu in evidence may be required by either party. It is preferable, however, that the issues should be special at first. That the issue is to be something other than that result- ing from the libel and answer is implied by the act itself, which reads "then if either party shall desire any matter of fact that is afarmed by one and denied by the other, to DIVORCES A VINCULO MATRIMONII. 341 be tried by a jury, an issue shall be framed, so that the same shall be tried accordingly." The amount and duration of alimony is within the dis- cretion of the court, and is not subject to review. CoLViN V. Reed, 5 P. F. Smith 375. The question raised in this case is, whether a court of another State has juris- diction to declare a divorce obtained by the husband with- out the wife's knowledge, so as to discharge his lands in Pennsylvania from the wife's right of dower. Neither the person nor the property of the wife being within the power of the court decreeing the divorce, no extra-|territorial eftect can be imputed to its judgment. This principle is recognized in Rogers v. Burns, 3 0. 527, and in Steel v. Smith, 7 W. & S. 447. The only question is, how far the subject of divorce forms an exception to the general principles requir- ing personal notice of the proceeding. The marriage rela- tion being one of civil status, as well as of contract, differ- ent views have been entertained. The unity of person created by the marriage is a legal fiction, to be followed for all useful and just purposes, and not to be used to destroy the rights of either, contrary to the principles of natural justice, in proceedings, which from their nature, make them opposite parties. Upon» the dissolution of their marriage, each has a right to be heard as a natural person. Can a State then, while regulating the civil status of one of the parties, alter the status of another, over whom it never had power? Bishop on Divorce states: "The doctrine now firmly esta- blished in America upon the subject of divorce is, that the law of the place of the actual bona fide domicile of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local law, without reference to the law of the place of the original marriage, or to the place where the offence, for which the divorce is allowed, was committed." Excepting the statement as to the locus delicti, this is the law of Pennsylvania. But the law of domicile implies, that it is the actual domicile of both of the parties, or was when the offending party left it. In the proceedings to dissolve a marriage, the parties stand upon a level of 342 LAW OF DIVORCE. rights. When the injured party seeks a new and different domicile, there is no reason why the husband's new domicile should prevail over the wife's, nor vice versd. IJJ'either should draw the other into the folds of a foreign jurisdiction. If a wife, enjoying here the comforts of home and friends, should refuse to follow the whim of the husband into west, ern wilds, on what principle of natural justice shall the husband's new abode draw his wife's domicile thither. Clearly no State right to regulate the status of its own citizens can justify this. The publication of the notice makes no dif- ference, for back of it lies the want of power of the distant State to subject her to its jurisdiction. Nothing short of possession of the person before or at the time of the pro- ceeding can warrant this. By marriage, the wife has claims upon her husband's pro- perty here. On what principle of right or of comity shall the decree of a distant tribunal cut loose these claims ? The husband had his right of action for divorce in this State, and the courts had jurisdiction over the person of his wife. In seeking a new domicile, he abandoned these rights. The court referred to Dorsey v. Dorsey, 7 W. 350, which is a leading case. On one point the opinion of Gibson, C. J., in the above case has been much doubt«d, to wit, the locus delicti, which he asserts is essential 'to the jurisdiction. It is denied by Mr. Bishop, and the legislature has since fur- nished a different rule in cases of desertion and adultery — act 26th April, 1850. The same opinion as to the locus de- licti was held in McDermott's Appeal, 8 W. and S. 256, that the courts here have no jurisdiction of marital duties abroad, and were we requested to decree alimony for desertion be- fore the parties were domiciled in the State, we would be bound to refuse it. The same doctrine was held in Hol- lister V. Hollister, 6 Barr 451, and even after the act of 1850, the court maintained the same view in Bishop v. Bishop, 6 C. 416, by confirming the act in its application to the States of the Union. In the present case, Taylor residing in Pennsylvania, con- veyed to Colvin, his wife not joining in the deed; Colvin gave a bond for, part of the purchase-money, payable when the wife's interest in the land should be discharged. Taylor DIVORCES A VINCULO MATRIMONII. 343 became a citizen of Iowa, his wife still residing in this State. He procured a divorce in Iowa and died, his wife surviving him, she not having released her interest. Held, that there could be no recovery on the bond. ( Vide Cheever V. "Wilson, 9 "Wallace 108, and American Leading Cases, vol. ii. p. 630.) Swisshblm's Appeal, 6 P. F. Smith 475. "Where a husband and wife jointly own real estate, their divorce makes no other change, than to free the wife and her estate from the control of the husband. In this case the husband procured the ownership and practical control of the liens, and sold out and purchased his wife's interest ; he was practically vendor and vendee. Edmond's Appeal, 7 P. F. Smith 232. The court below decreed the wife a divorce, on the ground of indignities offered her person by her husba,nd, of such a nature as to render her condition intolerable and her life burdensome. The trial was ex parte, the appellant not having been actually summoned, and having at the time been resident in a foreign country. Libellant's father and mother were the only wit- nesses examined, and none of the indignities were averred to have been offered in this country. The evidence in such a case should have be6n carefully scrutinized, especially where the witnesses are likely to be biassed by relationship or by affection for the party seeking a divorce, and where they have not been subj ected to cross-examination. Opinion s of such witnesses are worth nothing as proofs of wrongs inflicted. The court must be informed what the respondent has done, not what witnesses may conclude, or what they may regard as the character of his conduct. Koenig's Appeal, 7 P. F. Smith 354. A trust for the separate use of a married woman ceases on the death of her husband, or on her divorce from him, and this though vested in terms in the trustee in fee, and though he be re- quired to collect and pay over the rents and interest, not because such a trust is not an active one, but because it is special, and either the death or divorce renders its continu- 344 • LAW OP DIVOECE. ance unnecessary. If the sole purpose of the trust was to protect the wife's estate against her husband, it is manifest that purpose was fully accomplished when the coverture ceased. The divorce of the parties terminated all possi- bility of the husband's interference with the property de- vised to the wife, as completely as his death would have done. Magill's Appeal, 9 P. F. Smith 430. (Syllabus from the Eeport.) A rule of co^rt required, that in divorce proceed- ings, an issue should be demanded in the answer. A respond- ent in her answer neglected to make the demand, and shortly afterwards, and before much testimony had been taken, asked to amend her answer by demanding an issue. This Was refused by the court below. The Supreme Court held that the amendment should have been allowed. Mat v.. May, 12 P. P. Smith 206. This was an action by a wife against her husband for money, which he had received for her use from the administrator of her father's estate, and from the sale of her personal property. The wife had separated from her husband, and it was con- ceded she was not entitled to maintain the action, unless she had reasonable cause for leaving her husband, and this must have been sufficient to have entitled her to a divoi'ce. It is not every act of cruelty on the part of the husband that will entitle the wife to a divorce — ^this ill treatment may or may not endanger her life. Under the head of cruel and barbarous treatment, there must be actual personal vio- lence or the reasonable apprehension of it, or such a course of treatment as endangers life or health, and renders cohab- itation unsafe. Butler v. Butler, 1 Pars. 329; Gordon v. Gordon^ 12 "Wright 238. It is not necessary that there should be repeated and continuous acts of cruelty, in order to entitle the wife to a divorce. • A single act of cruelty on a single occasion, as suggested in Richards v. Richards, 1 G. 891, may be so severe, and attended with such circumstances of atrocity, as might under a fair and liberal construction of the act, justify a divorce. But no single act of cruelty, however severe, that comes DIVORCES A VINCULO MATRIMONII. 345 short of endangering life, is sufficient to justify a divorce on this ground. Indignities to the person constitute another cause of di- vorce. "What acts or course of conduct will amount to such indignities seem to be nowhere defined, and perhaps they are incapable of specification or exact definition. But they must render the wife's condition intolerable and her' life bur- densome. A single act of indignity will not be sufficient. There must be continued bad treatment. Richards v. Richards, 1 "Wright 227. These indignities need not be such as to en- danger her life or health. Reel v. Elder, 12 P. F. Smith 308. Action of dower unde nihil hahet brought by the wife against Reel, the vendee of the husband, to recover dower in a farm, which the hus- band had aliened in his lifetime. The facts of the case are these : The marriage was con- summated in this State, and the wife never left it. The husband deserted her and resided in Tennessee. At the ex- piration of six years, he brought an action of divorce in a Tennessee court, alleging that his wife was living in open adultery in Pennsylvania. Publication was made, and a commission was sent to Pennsylvania, to take testimony in relation to the alleged crime of the wife. The wife had notice to appear before the commissioner. The divorce was granted by the Tennessee court. Three years later the husband became seized of real estate, re- turned to his wife and lived in Pennsylvania with her for several months, he at the time terming the Tennessee divorce a nullity. He subsequently married another woman, and his wife re- taliated by cohabiting with another as his wife. Upon the death of the second object of the husband's affection, he re- turned to his first wife and lived with her until his death, prior to which return he aliened the said real estate, his second wife joining in the deed. The first wife claims dower in the property in question. Judge Sharswood in his opinion cites Colvin v. Reed, 5 P. r. Smith 375, which decides, that the injured party in the 346 LAW OF DIVORCE. marriage relation must seek redress in the forum of the defendant, unless, where such defendant has removed from what was before the common domicile of both. The rule thus established commends itself to every man's innate sense of justice, for surely no one who has not shut himself out by his own voluntary act of flight from justice shall be condemned without a hearing or an opportunity to be heard. The evidence of notice to the wife did not suffice, for back of it lies the want of power of the distant State to subject her to its jurisdiction. If the court have not jurisdictiouj notice, or even process duly served, cannot give vitality to the judgment it may pronounce. The divorce therefore was illegally granted, and the wife was entitled to dower after his death, in the lands of her husband, even though the land became vested in him after such decree of divorce. At common law, adultery was no bar to dower. The law was changed in this respect by the statute of "Westminster, 13 Edw. I. c. 34, where it was provided, if a wife willingly leave her husband, and go away and continue with her avouterer, she shall be barred forever of dower, if she be convicted, unless her husband pardon her and suffer her to dwell with him. Elopement, therefore, as well as adultery, were requisite, although the elopement need not be with the adulterer. In the present case, the proof was that the husband de- serted the wife, not that she had willingly left him. His own crime of unlawfulness exposed her to seduction, and that she fell was as much his fault as hers. The land in question was conveyed to Reel, before the wife alleged her marriage to a second husband, and her declarations having no effect upon the purchase, could not operate against her as an estoppel to her claim for dower. It is no defence to an action of dower, that the defendant is a bond fide purchaser for value without notice. Angibr v. Angibr, 13 P. F. Smith 450. The libellant in this case alleged desertion on the part of his wife as his ground for the application for divorce. During the tempo- rary absence of the wife, the husband, without the wife's DIVORCES A VINCULO MATRIMONII. 347 knowledge, leased the dwelling in which they had resided, and took rooms for hoth at a boarding-house. He then noti- fied her by letter of these facts, and requested her to remove the furniture belonging to her from the dwelling, and dispose of it at her option. The wife's father then offered to defray the entire expenses of housekeeping of the husband and wife, but the libellant peremptorily declined the offer, assert- ing that his wife and himself could not live happily together, and that he wished she would give him a divorce. At this time the libellant was indebted to the father and brother of his wife in an amount exceeding $30,000. The wife refused to occupy the rooms of the libellant at the boarding-house, but stated she was ready' to return to him, whenever he expressed a wish to that effect and pro- vided a suitable residence. The trial was by jury in the court below, and the decree of divorce granted. This decree was reversed by the Su- preme Court. The following is a summary of the opinion of the court delivered by Thompson, 0. J. : — One of the grounds for divorce a vincido contained in the act of 13th March, 1815, is for wilful and malicious desertion and absence of one party from the habitation of the other, without reasonable cause, for the space of or during the period of two years. The applicant must establish with suf- ficient certainty each and every of these ingredients as ele- ments necessary to constitute desertion. The application must not be made out of levity or by col- lusion, and for the mere purpose of being freed and separated, but in sincerity and truth, for the causes mentioned in the petition. Whatever may be the grounds, the libellant must by oath make it appear to the court, that for that cause alone a divorce is claimed. If the causes set forth are merely a scheme to make out a technical case, the court should refuse the application. The court below, therefore, erred in rejecting as immaterial, evi- dence of the object of libellant in breaking up housekeeping, on the ground that he offered the respondent a home else- where. 348 LAW OF DIVORCE. The husband in this case, in point of fact, was the first to desert. Was she bound to follow him, if she had good rea- son to believe, that his movements were solely with a view to force her to desert his habitation, and thus make a case for him? "Was he not bound to exhibit a case of good faith on his part, in order to be entitled to charge bad faith on hers? If there were evidence that he desired to get rid of his wife prior to his giving up housekeeping, and all that he did afterwards was to consummate that design, was he enti- tled to a divorce? Would that be a divorce applied for " in sincerity and truth," if he had labored and schemed to provoke the desertion? There was no desertion from the habitation of the libellant by the respondent. He left their home without any cause or reason, as disclosed to his wife. The doctrine advanced was, that she was bound to follow his footsteps, notwithstanding every act might persuade that he did not desire her association as a wife. (Bishop v. Bishop, 6 C. 412, cited.) Although the wife in this case might not be justified to the extent of entitling her to a divorce, on account of the bad faith of her husband in breaking up his establishment with a design ultimately to force her to desert hirii, yet she might undoubtedly show the object he had in view was to put himself in a position to claim a divorce from her, as a good reason why she did not follow him to become the vic- tim of his schemes. In such a condition of things, neither party could claim a divorce ; their case would not be within the act of assem- bly. This sort of proof would be a mode of negativing the charge of wilful and malicious desertion. He could not claim a divorce based upon his own schemes to promote it. This would be taking advantage of his own wrong. The learned judge further erred, in refusing the offer of respondent to prove a series of humiliating language and opprobrious epithets, addressed to her by the libellant in the presence of her servants. This evidence was pertinent as to the motives of the libellant in breaking up housekeeping, and to show that this was done to force the respondent to refuse joining him in a boarding-house, or to compel her to abandon him in time, if she did. If the jury should infer DIVORCES A VINCULO MATRIMONII. 349 this from the testimony, it would present a case of fraud, which would have defeated his application for a divorce, for there is no reason why fraud and chicanery should not defeat an application for a divorce, as it certainly would be a check in every other case, as it vitiates everything it touches. Great latitude of proof is allowable in an issue of fraud, or where it may be alleged, and is material to be proved. The wife in this case might defeat his unworthy attempts, by showing that her refusal to follow him was to avoid his schemes to get rid of her, and not through wilful- ness and malice, with just the same affect, as if she had gone to him and suffered, until she could endure no longer. The want of notice of special matter not required by rule of court, or by any special order, is not ground for refusing the evidence when offered. The act of assembly provides for a jury, only, when either party shall desire any matter of fact, which is affirmed by one party and denied by the other, to be so tried. This was not the case here. The decree is here on appeal and subject to be disposed of, as if no jury had sat in the case. "We will therefore dis- pose of the case as we conceive the merits under the evidence require. Like in all other cases in equity, the ap]3licant must be rectus in curia ; have a good cause and the respondent a bad one. The party who would win must be clear of everything, which is charged as a cause of separation against the oppo- site party. Hancock's Appeal, 14 P. F. Smith 470. The act of 1815, which prescribes the mode of proceeding in divorce cases, directs that the injured party may exhibit his or her petition in term time of the Court of Common Pleas, or to one of the judges thereof, thirty days before the next term, setting forth particularly and specially the causes of complaint, and subscribing the oath or affirmation " that the facts contained in the said petition or libel are true to the best of his or her knowledge and belief, and that the complaint is not made out of levity or by collusion between.the parties," etc., and 350 LAW OP DIVORCE. thereupon, says the act, a " subpoena shall issue, directed to the party complained of, to appear at the next or subsequent term of court." Thus it is plain, that the provisions of the statute are sat- isfied, so far as the petition or libel is concerned, by setting forth the causes of complaint, without accompanying it by time, place or the circumstances of the violation of the. mar- ital obligation complained of. A special statement of the cause for which the divorce is claimed is all that is required. If an appearance be entered, the respondent may demand a bill of particulars or notice of special matter, intended to be proved, so as to be prepared to meet the proof of them. This results, not from any statute, but from a desire of the courts to further common justice, by allowing the party" ample notice. Vide Breinig v. Breinig, 2 Casey 161, where neither time, place nor circumstances were given, but the libel was held sufficient to sustain the decree. It was said in the opinion of that case, that if the respondent had desired anything more specific, he ought to have called on the libellant for a specification of the matters intended to be proved. IsTot having done so, he waived anything more specific. This shows that a compliance with the act, in the use of sufficient terms, specially setting out the cause of complaint, is all that is required. If a specification of times and places, wherever the cause of complaint arose, is demanded, it is to be obtained by rule or order of the court. This was early announced in 4 Yeates 244. The libel in the present case, charged in appropriate form, that the respondent had committed adultery with a person named. This authorized the awarding of the subpoena, which was served and returned. There was no appearance by the respondent, and hence no demand for a specification. All that remained for the court to do was to receive proof in order to make a decree. The proof required would be the commission of the adul- tery within this State ot some other State of the Union. The libel was sufficient, and it was supported by sufficient evidence — being uncontradicted. DIVORCES A VINCULO MATKIMONII. 851 Jones v. Jones, 16 P. F. Smith 494. This action was in- stituted under the act of May 18, 1854, for the wife's mis- conduct. The libel charges the wife with cruel and bar- barous treatment, by which the libellant's condition was rendered intolerable and his life burdensome. This treat- ment consisted of threats and acts of violence to the person of the husband. The wife occasionally amused herself by pound- ing her husband, andjXantippe like, indulged in opprobrious epithets, by which he was constantly disturbed and vexed. She threatened him with death by poison or fire. She drove his aged mother from the house, and forbade her hus- band entering the room of his sick child, who had been ren- dered frantic by her barbarous and disturbing noises. One of her occasional recreations was to cast things off the cook- ' ing-stove, and compel the family to withdraw to the wash- house and cook their meals there. Neither the act of 1815 nor that 1817 made cruel and bar- barous treatment on the part of the wife a cause of divorce for the husband. This was first done by the act of 1854. In 12 Wright 226, this act came up for interpretation, and it was there held that the words, " cruel and barbarous treat- ment," therein stated, have the same meaning as in the act of 1817. To limit the acts of cruelty to those that endanger life alone is inconsistent with the act itself, and with the pro- visions of the acts of 1815 and 1817. The act of 1854 reads, " When the wife shall have, by cruel and barbarous treat- ment, rendered the condition," etc. The acts of 1815 and 1817 read, " When any husband shall have, by cruel and bar- barous treatment, endangered the wife's life, or offered such indignities to her person as to render her condition," etc. It is evident, that the legislature, in the act of 1854, in- tended to narrow the causes of divorce in the husband's case to " cruel and barbarous treatment," leaving out the " indig- nities to the person," which are causes of divorce for the wife under the act of 1815, in the belief, no doubt, that for the latter the husband needed no protection for a severance of the relation. But by express words, the cruelty and bai-- barous treathient to the husband, given to him as a cause of divorce by the act of 1854, are extended in their effects to 352 LAW OP DIVORCE. rendering his condition intolerable and his life burdensome. From the nature of the thing, this would also exclude those acts which endanger his life. (Judge Strong's opinion in 12 Wright 226, criticized). II. DIVOECES A MENSA ET THORO. Thompson v. Thompson, 2 Dallas 128. The libel in this case charged the husband with various acts of cruelty and indignities, which rendered the libellant's situation insup- portable. Defendant pleaded, that before the filing of the libel, the libellant had separated herself from him and that he had offered to receive and cohabit with her again and use her as a good husband ought to. Also that by act of as- sembly, the court is obliged to suspend or discharge any sentence separating husband and wife from bed and board, whenever the husband should make the offer that was stated in the answer. If this was a good reason to annul a sentence, a fortiori, it is a suflacient answer to the complaint of this libel. The court thought, that even after sentence, the mere offer of the husband would not, in all cases, be a cause for suspending it ; and that the act left them a discretion, upon the offer being made, to hear the wife and to continue the sentence in full force, if the. circumstances of the case required it. KiNSEY V. KiNSET, 1 Ycates 78. (Above decision affirmed.) "When it appears from the proofs exhibited, that the hus- band's conduct has been of such a nature, that the person of the wife cannot be iii safety, the court will grant an absolute divorce from bed and board, notwithstanding any offer on the part of the husband to receive her again, with promises of better behavior towards her. A contrary construction would make the law absurd, and be cruel in the highest degree to unfortunate married women. The act is not absolutely compulsory on the court, but it DIVORCES A MENSA BT THORO. 353 rests in their discretion, whether they will permit the hus- band to receive his wife again, contrary to her consent. Carre v. Carre, 2 Yeates 207. The act of 19th September, 1785, directs that upon due proof of crueV treatment, &c., in manner aforesaid, the court may grant a divorce from bed and board. The words are not on due proof and trial, &c. The case, therefore, is left as it is in the civil law, to a trial by the court per testes, and there is strong reason for the dis- tinction between such divorces and those from the bonds of matrimony. McKarracher v. McKarracher, 3 Yeates 56. The libel- lant obtained a divorce from bed and board from her hus- band, and waived her claim to alimony in open court. Sub- sequently she filed her petition for alimony, stating therein, that her husband had represented to her, that he was pos- sessed of no property, but that she is now infprmed he is possessed of property of large value. The court decided, that the declarations of the wife in open court, after the divorce, had reference to the then sub- ject matter. It abandons her claim on the first petition, but on proper grounds she may resume it at a future period on a new petition. If the parties have been reconciled since their divorce from bed and board, a fresh decree of divorce is necessary to enti- tle the wife to alimony. Tiffin v. Tiffin, 2 Binney 202. An order of alimony upon a divorce a mensa et thoro continues in force only until the reconciliation of the parties. When the wife returns to her husband, and puts herself under his power, even for a brief ■ period, she gives up her claim to her arrears of alimony. In the present instance, the wife, after the reconciliation, left her husband again without just cause. The causes of divorce - from bed and board are, the husband's maliciously abandon- ing his family, turning his wife out of doors, or by cruel and barbarous treatment endangering her life, or offering such indignities to her person as to render her condition intolerable or life burdensome. , 23 354 LAW OF DIVORCE. Smith v. Smith, 3 Sergeant & Eawie 248. The act of 1785, permitting divorces from bed and board with alimony, was repealed by the act of March, 1815, and a divorce a vinculo was granted for the same causes, for which the partial divorce with alimony was previously decreed. In 1817 another act was passed, restoring the right to divorces a mensa et thoro. Klingbnbbrger v. Klingenbbrger, 6 Sergeant & Eawle 187. By the law prior to March, 1815, ill treatment of a wife was not a cause of divorce from the bond of marriage, but only from bed and board with an allowance of alimony. But by that act, such treatment was made a cause of divorce a vinculo matrimonii, but the court had no power to decree alimony. This being found inconvenient, the act of February, 1817, was passed, being a supplement to the one of March, 1815, by which it was enacted, that in case of cruel treatment, &c., the Court of Common Pleas, upon proof, may grant a divorce a mensa et thoro, and allow the wife such alimony as her husband's circumstances will admit of. Upon a libel of the wife for cruel treatment by the hus- band, and praying a divorce a vinculo and an allowance of alimony, the court may, notwithstanding the informality of the petition, decree a divorce from bed and board with ali- mony, provided the libellant does not object to the decree. EoBBARTS V. EoBBARTS, 9 Sergeant & Rawle 191. The act of 1815, which repealed all former acts relating to divorce, was found to be defective, inasmuch as it made no provision, for divorces from bed and board or alimony. To remedy this omission, the supplement of February, 1817, was passed. But there is no mention made therein of an appeal ' to the Supreme Court, and unless an appeal is given by these acts, it does not lie. But the original act and the supple- ment are so blended as parts of one system, that the ap- peal lies in all suits prosecuted under the one or the other. So, likewise, may costs be given in all suits, though the supplement says nothing of costs. It was unnecessary for DIVORCES A MBNSA ET THORO. 355 the supplement to give either an appeal or costs, because it was engrafted on the original law which gave both. A decree of alimony is final and conclusive, though sub- ject to be suspended or annulled in consequence of subse- quent acts of the husband, Brentinger v. Brbntinger, 4 Eawle 241. On an appeal from the decree of the Court of Common Pleas on a petition for a divorce, an affidavit that it is not intended for delay- must be filed. But such an affidavit is not a prerequisite of an appeal, and thfe court will not dismiss the appeal on the ground that such an affidavit has not been tiled with the record, where the defect has been supplied during the term, and before motion to dismiss the appeal. Clark v. Clark, 6 "Watts & Sergeant 85. A woman, di- vorced a mensa et thoro, and living apart from her husband, cannot be sued as a feme so?e, unless in the unknown cases of abjuration, exile and the like, where the husband is consid- ered as dead, and the woman a widow. The same holds good where she is divorced a vinculo. Alimony is not considered the separate property of the wife, and may be varied by the court, according to the hus- band's circumstances. A married woman, divorced and en- titled to alimony, accepted a bill of exchange for articles of dress supplied her by the drawer, and made payable at her bankers to whom her alimony was paid. It was held she did not thereby charge her alimony. A distinction was taken between her separate estate and alimony. The former she has a right to charge, but the latter she has not, because it is given for her support and maintenance from year to year. In case of a divorce a mensa et thoro, the wife ought to apply the alimony to her support as her occasions may re- quire, and if those who know her condition, instead of re- quiring immediate payment, give credit to her, they cannot sue her. This partial divorce does not destroy the relation of mar- riage, but merely suspends some of the obligations arising out of that relation, hence the right as regards succession 356 LAW OF DIVORCE. of property is not impaired. Thus, a wife is dowable of her husband's lands, and the husband is tenant by the curtesy of his wife's lands. He is also entitled to her personal pro- perty, and he may release a legacy given his wife, notwith- standing a divorce. A husband after divorce cannot release costs awarded to the wife in a suit of defamation. The arrears of alimony, therefore, belong to the husband, and it would be wrong to compel him to pay to another that which belongs to himself. This may have been avoided by the husband, who might, upon a proper application, have the letters of administration set aside. Here, however, the administrators sue for the benefit of the creditors of the wife, who will "be without remedy, unless this action can be sustained. After the sentence of the court decreeing alimony, the husband withdrew himself from the jurisdiction of the court, so that the decree could not be enforced by attachment. She has no property except her alimony, and if that is not paid, she must contract debts, which debts must be paid by the husband, or out of the ar- rears of her alimony. He cannot escape from the conse- quences of his own improper act. This relief is purely equitable. McDermott's Appeal, 8 Watts & Sergeant 251. The re- fusal by a foreignerj who arrives and becomes domiciled here, to receive his wife who follows him hither, is a virtual turning her out of doors, and the Court of Common Pleas may decree her alimony. HoLLiSTER V. HoLLiSTBR, 6 Barr 449. Testimony taken under a commission without the State cannot be read, if the attorney of one party was present when it was taken, though he took no part in the examination, and was not employed to attend. The removal and domicile of husband and wife in another State is no bar to proceedings for divorce on the part of the wife, for causes occurring in this State prior to the removal, if she has returned and resided in this State one year pre- vious to the filing of the libel. The act of March, 1815, enacts, that no person shall be entitled to a divorce who is DIVORCES A MENSA ET THORO. 357 not a citizen of this State, and who shall not have resided therein one full year before filing his or her petition. But the act of April, 1843, provides, t!hat the word " citizen" shall not be construed to apply to any woman, who shall have a bond fide residence in this State at least one year pre- vious to filing her petition. The general policy of this last act is not for me to question. Another question is, whether a reconciliation, after the abuse and ill treattnent alleged in the libel, and subsequent cohabitation is a remission of the offence and a bar to a divorce, without proof of new outrages after the reconcilia- tion. Our statute of 13th May, 1815, enacts, that in cases where the libellant has admitted the defendant into conju- gal society and embraces, after he or she knew of the other having committed the crime of adultery, is a bar to a divorce on that ground and for that offence. But as there is an entire absence of any such provision in cases of divorce for cruel treatment, I draw from thence an argument, that co- habitation, after such abuse, is not a bar to divorce for that cause. The distinction between the two cases seems to be founded on a just conception of the conjugal relations. The crime of adultery may, and sometimes doubtless is, com- mitted, especially on the part of the husband, when there are many atoning qualities, such as personal respect and kindness, and even love for the wife, with great attention to her comfort. But with regard to personal indignities and barbarous treatment, nothing but the devoted fondness of a female submission in distress could induce her to re- main with the hope of softening her husband's heart. A man may in a thousand ways, which cannot meet the eyes of witnesses, wound the bosom of his wife, which he has made desolate by his cruelty, so as to render her life burdensome, and compel her to withdraw from his house. EiCHARDS V. EiCHARDS, 1 Grant 389. In this case a di- vorce a mensa with alimony was decreed, simply because the husband on one occasion twisted his wife's nose, while she was pointing a knife in a threatening manner towards the sister of the husband, evidence having been given of his 358 LAW OF DIVORCE. uniform kindness and affection towards his wife. From this decree an appeal was taken, and the decree reversed. The court asserted that it was possible that a single act of cruelty, on a single occasion, might be so severe and at- tended with such corresponding circumstances, as might justify a divorce. But it is not every single touching of the wife's person in anger, at a moment of sudden excitement or passion, that would sanction a divorce. The facility with which divorces may be obtained needs no encouragement. The only evidence of the violent act in the present case was the declarations of the husband'. In Eshbach v. Eshbach, 11 H. 343, it was held, " that mere declarations of the hus- band, unaccompanied by acts, are not a ground of divorce." In Butler v. Butler, 1 Pars. Eq. Cases 844, Judge King says : " That the cruelty which entitles a wife to a divorce is actual personal violence or the reasonable apprehension of it ; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe. In limiting our intervention in matrimonial cases, in which cruelty is charged, to cases in which life or health are in any way involved, we occupy, safe and prudent grounds." A man may lay hands on his wife, even rudely, if neces- sary, to prevent the commission of some unlawful or criminal purpose. BKEINI& V. Breinig, 2 Casey 161. If the respondent go to trial, without demanding a specification of the particular acts relied on to sustain the libel, he will be presumed to have waived such notice. If he had been really surprised at the trial, an affidavit to that effect would have obtained him a continuance. "Whether certain ambiguous words, uttered by the respond- ent, involved a threat of personal injury, is a question for the jury. This affirms the decision of Breinig v. Meitzler, 11 H. 156. The amount of alimony is a question for the discretion of the court which pronounces the decree, and is not subject to review. Where a wife is destitute of a separate estate, and is either suing or defending a divorce, the court allows her DIVORCES A MENSA ET THORO. 859 out of her husband's property a reasonable sum to conduct the suit. Where the husband after a divorce a mensa et thoro, desires to do his duty and the wife unreasonably refuses to join him, she ought to be punished for her obstinacy by the withdrawal of her separate support. But the husband has no absolute right to annul the whole proceeding, whenever he pleases, by the mere act of presenting a petition. He cannot force his wife back again into the power that abused her before, by the simple expression of his own will. The court may annul or suspend the sentence in a proper case, but they are not bound to do so in every case. It is left to their discre- tion by the very words of the statute, EiOHARDS V. Richards, 1 "Wright 225. The decision of the court below as to the degree and kind of proof requisite to sustain a libel for divorce on the ground of cruel treat- ment of the wife, is herein reversed for the second time. Vide 1 Grant 389. Indignities provoked by the complaining parties arc of course no ground for divorce, unless when the retaliation is excessive. The mere opinions of the witnesses about the probable effect of the husband's conduct on the wife were of course improper evidence. Grove's Appeal, 1 Wright 443; The libel in the action charged the respondent with turning his wife out of doors, but contained an error as to dates. Subsequently an amended libel was filed by leave of the court, which was properly allowed, as it presented no new case, but only a more specific statement of the cause of complaint originally made. The time designated in the libel was not descriptive of the alleged offence, and therefore was not material, though the respondent might have called for a specification of the time, and thus made it descriptive. Jfothing amounts to a bar against such a suit for divorce, except such facts as would entitle the defendant to a divorce. N^othing short of such facts will justify a wilful separation or a continuance of it. This is the same principle which rules in the English eccle- siastical courts. In that country when cohabitation is bus- 360 LAW OF DIVOKCE, pended by either the husband or wife of his or her own mo- tion, without a sufficient reason, a suit for a restitution of conjugal rights may be maintained by the injured party. Separation is not to be tolerated for light causes, and all causes are light, which the law does not recognize as ground for the dissolution of the marriage bond. f Allison v. Allison, 10 Wright 323. (Syllabus from the Report.) " A party to a libel for divorce is entitled to an issue for the trial of disputed facts, if he exercise his right reasonably and with vigilance ; but where the respondent's answer concludes with a verification and not to the country and no issue is asked, until after the report of the commis- sioners appointed with the assent of both parties, and when the court was about to make a final decree, the application is too late, and the refusal to award the issue is not error." GoEDON V. GrORDON, 12 Wright 226. The libel alleged as causes for a separation, that the defendant had turned his wife out of doors, and ofibred indignities, rendering her con- dition intolerable and life burdensome. The defendant's answer averred, that his wife was accustomed to use obscene and abusive language, was immoral in her conduct, with intemperate and violent habits. But it is not all bad conduct of a wife which entitles a husband to a divorce, and a legal justification of his refusal to receive his wife must be such as would entitle him to a divorce if he were the applicant. Vide 11 Harris 343, and 1 Wright 447. Causes sufficient for that are such only as are defined in the acts of assembly. Under our statutes, a distinction has always been made between the causes of a divorce at the suit of a wife, and those which justify a divorce at the suit of a husband. The act of 1815 gave the husband a divorce on two grounds; the adultery and wilful desertion of him by the wife. Under the act of 1817, provision was maSe for a partial divorce at the suit of the wife for four distinct causes, viz: malicious abandonment by the husband of his family ; turn- ing the wife out of doors ; endangering her life by cruel and DIVORCES A MBNSA ET THOEO. 361 barbarous treatment, and offering such indignities to her person, as to render her condition intolerable or life burden- some, and thereby force her to withdraw from his house and family. The acts of assembly authorizing divorces remained in this condition substantially until 1854. In Dorsey v. Dorsey, 7 W. 349, it was decided that the law of the actual domicile at the time and place of the injury is the rule in cases of divorce for everything but the original obligation of marriage. To meet in part this decision, the act of 27th Feb. 1847, was passed, in which an attempt was made to validate divorces granted for adultery, if the offence was committed in this commonwealth, although the parties were at the time residents of another State ; if the libellant resided here for one year before filing the libel. This was followed by the act of 26th April, 1850, which gave the courts jurisdiction in cases of desertion, notwith- standing the parties were at the time of the desertion domi- ciled in any other State. It did not reach a case where the parties were domiciled in any foreign country, not one of the United States. Bishop v. Bishop, 6 C. 412. By the act of 8th May, 1854, the jurisdiction of the courts was enlarged. They were authorized to grant divorces for new causes, to wit : for fraud, force or coercion in the pro- curement of the marriage, if it had not been subsequently confirmed by the act of the injured party, and conviction of felony and sentence to either a county or State prison, where the application be made by the innocent party. The act also extended to the husband a right to a divorce, where the wife shall have, by cruel and barbarous treatment, ren- dered the condition of her husband intolerable and life bur- densome, but required that he should pay alimony, whenever a divorce should be decreed for such a cause. This act does not undertake to make the rights of husband and wife equally extensive. Cruel and barbarous treatment is added to the causes for which he is entitled to a divorce, but per- sonal indignities, a cause which former acts had carefully distinguished from cruel treatment, is not added. The act of 9th March, 1855, gave no new cause of divorce. Its sole purpose, like the act of 1850, was to extend the jurisdiction of the courts. That act extended the jurisdic- 362 LAW OF DIVORCE. tion over parties domiciled in another State at the time of the adultery or desertion, while the act of 1855 included also the inj uries of cruel and barbarous treatment or personal indignities. Personal abuse or indignities, offered by a wife to her husband, will not justify him in turning her out of doors; he must show such cruel and barbarous treatment as renders his condition intolerable and life burdensome, or endanger- ing his life, such as would justify a divorce. In strictness, to enable the husband to make use of any justification, he should have pleaded it, for it is matter of evidence. The cruel and barbarous treatment spoken of by the act of 1854 is the same as that described in the acts of 1815 and 1817, notwithstanding the slight difference of language. Judge King, in Butler v. Butler, 1 Pars. Eq. Cases 329, defined cruelty, as actual personal violence or the reasonable apprehension of it, or such a course of treatment as en- dangers life or health and renders cohabitation unsafe. Egberts v. Roberts, 4 P. F. Smith 265. Pending pro- ceedings instituted by a wife for divorce a mensa et thoro and alimony, the husband procured an act of assembly di- vorcing them absolutely. Held, that the divorcing act was evidence in the proceedings. In Cronise v. Cronise, decided on page 255 of this report, we held that a special divorce law is primd facie evidence, that it was passed for some just cause within the province of the legislature, the question whether the cause was actually within the jurisdiction of the court being a subject of proof upon the trial. Hettrick v. IIettrick, 5 P. F. Smith 290. A widow who had been divorced a mensa et thoro is not entitled to the $800 exemption, on the death of her husband under the act of April 14th, 1851. The purpose of that act was to make an immediate provision for the wants of the family when the head of it is removed by death. The right is to retain the property which shall remain for the use of the widow and family. "When no family relation exists, it can, with no propriety, be said that the property remains or is BIVORCES A MENSA BT THORO. 363 retained. The right is given in the disjunctive to the widow or children, in order that when the family relation extends no further, either may enjoy it; but the use is de- clared in the conjunctive for the widow and family, that both may be provided for. MoClurg's Appeal, 16 P. F. Smith 866. In 1845 Alex- ander McClurg, an old man, and the father of a large grown- iip family, married a woman of only half his years. Busi- ness losses soured his temper, and made him close and penu- rious. His wife became correspondingly discontented and unhappy. In 1864 Mr. McClurg left his wife, and has since continued separate from her. In 1867 the wife applied for a divorce from bed and board with alimony, alleging deser- tion and indignities on the part of the husband. The divorce was granted by the court below, and alimony allowed in the sum of $1200. The testimony proves the desertion and its continuance without sufficient legal, reasonable cause for it, while on the contrary, the husband appears to have been actuated by per- verse feelings, leaving the conclusion, that his absence was wilful, and in its legal acceptance, malicious. The evidence shows that before marriage, Mrs. McClurg was a lively, pleasant, amiable and happy lady. Her married life soon became full of trouble and discontent, her temper disturbed, and she was often found in tears. He was unkind to her at times, and spoke harshly to her in the presence of strangers. She did not receive sufficient means from him to provide for Ijis large family and herself, while she expended all her own patrimony, which was a very ample one. He was overbearing and penurious, denying her necessary comforts, disagreeing with her about her religion, refusing her relations permission to visit her, and shutting the door against them. This state of things, and this condition of feeling must be taken into account in considering his offers to provide a home for her. In 1865 he made her in writing a formal offer of a home, which offer is prefaced by a recital of grievances calculated rather to repel than to attract her. Twenty months later, he made another offer to her. The tone of this letter is rather kind and displays much better feeling, and had it not been preceded and followed by bit- 364 LAW OF DIVORCE. • terness and ill feeling, more weight would have been due to it. The next letter was signed by the counsel of Mr. McClurg, dated August, 1868, during the pendency of the proceeding. This, of course, was merely formal, and is com- bated by his own conduct too strongly to be looked upon as a cordial amd sincere invitation to a home. It was a question for the court to decide, whether the offers were made in all due sincerity, and with an intention bond fide to perform his marital duty. An unmeaning form- ality cannot always be accepted as a genuine act. It may have the hand of Esau, and yet betray the voice of Jacob. It must be remembered that the desertion was on his part, and fully proved. Her right to a divorce from bed and board and a maintenance, had been fully established, and it was not to be arrested by a merely formal offer of reconcilia- tion, contradicted by all the evidence, as to its motive and good faith. It would be subversive of all just administration of justice, if, when a case is clearly made out against the re- spondent, entitling the plaintiff to a decree, he could avoid it by the mere magic of a few words, without evidence of their frankness, and of his intention to remove the cause of complaint in truth and sincerity of purpose. Refer to 1 Yeates 75 ; 6 Barr 452 ; 2 Casey 161 ; 12 P. F. Smith 206. The alimony, however, is excessive. It is proved, that the rentals of a large proportion of Mr. McClurg's property are appropriated to the claims of creditors, whose claims are fixed upon the estate. The act of 1817 allows but one-third of the husband's annual profit or income, as the maximum of alimony. There is nothing to prevent a greater allowance hereafter, should his income be increased, if an increase should be found to be necessary for Mrs. McClurg. This can be effected by the terms of the decree itself. The order of alimony is part of the final decree, and when brought up by appeal is, with all the evidence, the subject of the jurisdiction of the Supreme Court. Y. SYNOPSIS OF PENNSYLYANIA STATUTES UPON DIVORCE. AoT OF September 19, ITSS. In cases of impotency, bigamy, adultery and wilful deser- tion for four years, the innocent party ia entitled to a divorce a mensa et thoro or to a divorce a vinculo. The judges of the Supreme Court have j urisdiction. If the respondent does not appear, the sheriff must make proclamation from the court house on three market days, and publication must be made for four successive weeks in a county newspaper. Eepealed by act of 1815. Act or April 2, 1804. Consanguinity and affinity are causes of divorce and the offending parties are liable to the penalties contained in the act against incest. The Circuit Courts and Courts of Com- mon Pleas have concurrent jurisdiction with the Supreme Court. Appeals lie to the Supreme Court and to the High Court of Errors and Appeals. Repealed by act of 1815. Act of March 13, 1815. I. A divorce from the bond of matrimony will be granted to the innocent party, where either party at the time of the marriage was and still is naturally impotent or incapable of procreation ; also in cases of bigamy, or where either party has committed adultery, or wilful and malicious desertion and absence from the habitation of the other without reason- able cause for two years, or where a husband shall have, by cruel and barbarous treatment, endangered his wife's life, 866 LAW OF DIVORCE. or oiFered 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. II. and III. These sections embody the mode of proceed- ing in such cases in the Common Pleas Courts of the county where the injured party resides — the libel — the affidavit attached — the subpoena — the demand for trial by jury — the alias subpoena — and the publication. rV. The record of a conviction for adultery is evidence in an action for divorce instituted by the injured party. V. Marriages within the degree of consanguinity or affinity, according to the table established by law, are void and the courts may grant divorces therefor. The parties shall be subject to like penalties as are contained in the act against incest ; but when any of the said marriages shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be inquired into after the death of either the husband or wife. YI. If either party upon false rumor, apparently well founded, of the death of the other after two years' absence, hath married again, no adultery exists, but it shall be at the option of the party returning to have the marriage dis- solved, the suit to be instituted within six months after such return. VII. In a suit for divorce for adultery, it will be a valid defence, if the plaintiff be proved to have been guilty of the same crime, or if there have been condonation, or if the hus- band allowed the wife's prostitution or received hire there- from, or exposed his wife to lewd company, whereby she fell from virtue. VIII. After the court has nullified or dissolved the mar- riage, all the duties, rights and claims accruing to either of the parties before in pursuance of the marriage shall end and the parties may marry again. IX. The wife or husband who shall have committed adul- tery shall not marry the particeps criminis during the life of the other party, but nothing herein contained shall affect or render illegitimate any children born of the wife during the coverture. X. "When any woman so divorced shall openly cohabit at SYNOPSIS OF PENNSYLVANIA STATUTES UPON DIVOKCB. 367 bed and board with the partieeps criminis mentioned in the libel, she is declared incapable to alienate her lands, but all deeds, wills, appointments, &c., shall be void, and after her death the same shall be distributed, as if she died seized thereof intestate. XI. No person shall be entitled to a divorce from the bond of matrimony, who is not a resident of this State, and who shall not have resided therein at least one whole year pre- vious to the filing his or her petition or libel. XII. The court may award costs to the party in whose behalf the sentence or decree shall pass, or that each party shall pay his or her own costs, as shall appear reasonable or just. Xin. Either party after decree, may appeal to the Supreme Court, upon entering into recognizance before a judge of the Common Pleas Court before whom the cause was tried, with at least one good surety, in a sum double the amount of costs to be incurred conditioned to prosecute the appeal with efiect. XIV. This section repeals the act of Sept. 19, 1785, and the supplement thereto, passed April 2, 1804, and so much of the act against incest as is hereby altered or supplied. Act of February 26, 181T. If any husband shall maliciously abandon his family or turn his wife out of doors, or by cruel and barbarous treat- ment endanger her life, or offer such indignities to her per- son as to render her condition intolerable or life burdensome, and thereby force her to withdraw from his house and family, the Courts of Common Pleas of the respective counties may grant the wife a divorce from bed and board and allow her such alimony as her husband's circumstances will admit of, so as the same do not exceed one-third part of his income, which shall continue until a reconciliation shall take place, or until the husband shall by his petition or libel offer to receive and cohabit with her again and to use her as a good husband ought to do ; and then the court may either sus- pend the decree, or in case of her refusal to return and cohabit under the protection of the court, may discharge 368 LAW OF DIVORCE. the same at their discretion ; and if he fail in performing his said offers and engagements, the former sentence may be revived and the arrears of alimony ordered to be paid. Act cf Febrtjaet 8, 1819. No appeal shall lie from the final decree of the court below after the expiration of one year from the time of pro- nouncing such decree. Act of Apeil 13, 1843. Where the wife is a lunatic or nen compos mentis, she may appear as libellant in divorce by any relative or by her next friend, by whom the afioidavit attached may be signed, pro- vided that the fact of the wife's lunacy as well as the circum- stances of the case be set forth in the libel. Act of Apkil 15, 1845. I. Upon a decree a mensa et thoro, and the allowance of alimony, the prothonotary of the court shall enter the decree on the judgment docket, as a lien on the real estate of the respondent, until the same is satisfied for the full amount that may be due up to the period of such satisfaction, and after such lien shall be so entered, the libellant, upon affi- davit made that any payment ordered by the court is due and unpaid, can issue execution for such amount which shall be directed to and served. by the sheriff in like manner as executions upon judgments, and if the court be of opinion that the said lien is not sufficient for the full or permanent secu- rity for payment of said decree, it shall have power, on sat- isfactory proof that the respondent is possessed of sufficient estate, to order a decree and require that security, approved by the court, shall be given for the payment of the alimony decreed ; the said security to be either by a bond with suffi- cient sureties, or a mortgage on real estate, taken in the name of the commonwealth, to the use of the party entitled to the alimony, or by the deposit of money, to be invested as the SYNOPSIS OF PENNSYLVANIA STATUTES UPON DIVORCE. 369 court may deem proper, to secure the payment of the ali- mony as it falls due. II. The said courts may enforce their decrees by attach- ment, on the return of which, they may make such order, either to imprison or discharge the defendant, as the facts of the case may justify. Act op February 21, 184T. Where divorces have been decreed for adultery, and no appeal has been taken within the year, they shall be deemed good and valid, if the offence have been committed in this State, and the libellant has resided here one year previous to the application therefor, although at the time of the com- mission of the offence, the parties may have been residents of another State ; provided, that in cases where the respond- ents resided out of this State, at the time of the preferment of the libels, personal notice shall be given to them. Act of April 26, 1850. I. The jurisdiction of the Courts of Common Pleas shall extend to all cases of divorce from the bonds of matrimony for wilful, malicious and continued desertion by either from the habitation of the other without reasonable cause, and the libel may be filed therefor at any time, not less than six months after such cause of divorce shall have taken place ; but the court shall not make a final decree of divorce from the bonds of matrimony, until the expiration of two years from the time such desertion took place. II. The courts may decree divorces a vinculo matrimonii for desertion and adultery, although the parties at the time, were domiciled in another State ; provided, that the applicant be a citizen of this State or shall have resided herein for the term of one year. Act of May 8, 1854. 1. Additional causes of divorce, to wit : I, "Where the alleged marriage was procured by fraud, force or coercion, and has not been subsequently confirmed by the acts of the injured party. 24 870 LAW OF DIVORCE. II. Where either party has been convicted of a felony and sentenced for any term exceeding two years. III. Where the wife shall have by cruel and barbarous treatment, rendered the condition of the husband intolerable, or life burdensome ; provided, that the court shall allow such support or alimony to the wife as her husband's circum- stances will admit of, and as the court may deem just and proper. 2. The proceedings in these cases shall be the same as those prescribed by' the act of March 13, 1815, and the acts supplemental thereto ; the word citizen shall not be so con- strued as to exclude any party who shall, for one year, have had a hondjide residence within this commonwealth previous to the filing of his or her libel. Act op March 9, 1855. Causes of divorce a vinculo extended to include the cause of personal abuse, or such conduct on the part of either the husband or the wife, as renders the condition of the other party intolerable and life burdensome, even though the par- ties at the time were domiciled in another State ; -provided, that the applicant be a citizen or shall have resided in this State for one year. Act op April 22, 1858. The jurisdiction conferred in the act of March 9, 1855, upon the Courts of Common Pleas is hereby extended to all cases of divorce from the bonds of matrimony for the causes therein mentioned, where either of the parties were or may be at the time of the occurring of said cause, domiciled in another State or country ; provided, that the applicant be a citizen, or shall have resided in this State one year. Act op April 14, 1859. In all cases where a marriage is absolutely void by reason of one of the parties having a husband or wife living at the time, the Courts of Common Pleas may decree the said mar- SYNOPSIS OP PENNSYLVANIA STATUTES UPON DIVORCE. 371 rlage void, upon the application of an innocent or injured party, and the proceedings shall be conducted according to the principles and forms prescribed in cases of divorce from the bonds of matrimony. Act oe Makoh 4, 18T0. The provisions of the act, allowing any party or person to be a witness in any civil proceeding, are hereby extended so as to allow the testimony of either husband or wife to be given in his or her own behalf, in any proceeding for a di- vorce, in every case, where personal service of the subpoena is made on the opposite party, or said party appears and defends. VI. PRACTICE IN PENNSYLYMIA IN CASES OF DIYORCE. I. IN DIVORCES A VmCULO MATEIMONII. First. Where the Respondent can he personally served. 1. Libel. The libellant must have been a bondjide resident of the' State for one year immediately prior to filing the libel,' and the action should be brought in the county where the appli- cant resides. If the wife be the libellant, the action should be instituted in her married name by her next friend.^ The libel should contain a specific detail of the facts intended to be proved ; also an assertion of the residence of the libellant in the State for one year last past and a denial of collusion with the respondent. It should terminate with an affidavit, the omission to sign which is amendable,' and should be framed in accordance with the form laid down in the act of March 13, 1815.^ The libel is technically sufficient, if it set forth the causes of complaint, without accompanying them by time, place and circumstances, as a special statement of the cause is all that is required, unless the respondent demand a bill of par- ticulars or notice of special matter.' It is not even indis- pensably necessary, that the particeps criminis in adultery should be named in the libel. If the name be subsequently known to the libellant, notice thereof should be given to the respondent without requisition.* The recital of family matters in a libel for divorce is mere surplusage.^ ' 6 Barr 449. = 6 Phila. 50. ' 6 Phila. 318. ' 6 Casey 417. 5 14 P. F. Smith 470. « 4 Yeates 344. ^ 7 PMla. 308. 874 LAW OP DIVORCE. An amended libel will always be allowed under a rule, where it presents no new causes of action, but only a more specific statement of the cause of complaint originally made,^ but the libel cannot be amended after the examiner's report has been filed.^ "Where a wife files a second libel for divorce, she will be allowed, if her default be accounted for, to enter a discontinuance of the former one nunc pro tunc.^ Defects in a libel may usually be cured by filing specifications.* Should the libel be lost, the judge will grant a rule to amend the record, by permitting a sworn office copy of the libel to be filed nunc pro tunc. The libel should be filed in the office of the Court of Com- mon Pleas, at least thirty days prior to the first Monday of the term to which it is rettjrnable. In the case of desertion, the libel cannot be filed until six months have elapsed from the commission of the ofl:ence, and the decree of divorce will not be granted until the ex- piration of two years thereafter. Upon application by the attorney for the libellant at side bar or in chambers, the judge of the Court of Common Pleas will indorse upon the libel : " Let subpoena a vin. mat. issue, returnable according to law." 2. SUBPCENA. Upon the presentation of the indorsed libel by the attorney to the clerk of the court, the subpoena in divorce will be issued. This writ must be served personally on the respond- ent by the sheriff, at least fifteen days before the return day. If the subpoena be issued later, it is voidable merely.^ Ac- ceptance of service of the subpoena by the respondent or by his counsel is prohibited, it being evidence of collusion. If the respondent reside elsewhere, the court, on motion, will grant an order on the sheriff of the county to deputize the sheriff of another county, in which the respondent dwells, to serve the subpoena personally on the respondent and make return thereto. Service of interrogatories may be made upon the respondent in a, similar manner. I 1 Wright 443. ' 7 Phila. 405. s i pjijia. 443. * 6 Casey 417. = 4 "Wright 151. practice in pennsylvania in oases of divorce. 375 3. Appearance. The respondent should enter his appearance within ten days after the return day. If twenty days elapse thereafter, the libellant may proceed ex parte. 4. Rule to Answer. This rule is entered by the libellant as of course, and is only taken where the respondent appears. It compels the respond- ent to answer within thirty days, aliter the proceedings will be ex parte. Service of this rule may, be made upon the attorney of record of the respondent, as is the case with all rules, except the one for a final decree. Where there is no attorney of record for the respondent, who has entered his appearance, service of the rule should be made by the sherift' upon the respondent, and proved in the same way as in the case of the subpoena. On application by the respondent's counsel for cause, the court often grants an extension of time in which to answer. 5. Rules on the Libellant. If an inherent defect exist in the libel, the respondent may ask a rule to set aside the libel and quash the proceed- ings. At the hearing of the rule, the judge will usually grant the libellant leave to amend. The respondent may also request a rule on the libellant to furnish a minute specification of the charges, with time, place and circumstances, upon which the libellant relies to sustain the libel.' If the libellant upon such request, fail to give such notice, he cannot supply the omission at the trial by having the libel amended.^ In an action of divorce for adultery, where the names of the parties are unknown, the times, places and attendant circumstances should be con- tained in the specification, aliter the libellant should be pre- cluded from giving particular instances in evidence on the trial, under a general charge.' If the respondent go to trial, without demanding specifi- cations of the particular acts relied upon to sustain the libel, ' 1 Dallas 409 ; 14 P. P. Smith 470. 2 17 Serg. & Rawle 373. ' 4 Yeates 344. 376 LAW OF DIVORCE. he waives such notice. If he be really surprised at the trial, an affidavit will give him a continuance. 6. Answer, Demurrer or Plea. A plea and demurrer cannot be put in at the same time.' The demurrer will be stricken off. The libellant then should file a joinder in demurrer, and proceedings will stay until the demurrer is disposed of. If a plea be filed, the libellant usually replies similiter or demurs to the plea. Usually, however, an answer only is filed, denying the allega- tions made in the libel. To this the affidavit of the respond- ent is attached. In an action for desertion, where the re- spondent justifies the act on the ground of cruel treatment, the libellant may under a rule obtain from the respondent a specification of the acts of cruelty complained of.^ If the libellant delays the demand until trial, he waives his right.' Demand for Jury Trial. Either party may make this demand at any time before the testimony has been submited to the court, but it is too late, where the respondent's answer concludes with a verifica- tion and not to the country, and the report, of the commis- sioners has been filed, upon which the court was about to make a final decree.^ If the respondent has not made the demand in his original answer, a supplemental answer may be filed,, reiterating the truth of the former answer and ap- pealing to the country.' To this the libellant files a replica- tion and also appeals to the country.' The case is then placed on the trial list. The court directs the form of the issue, and if it be framed in the libel and answer, notice of special matter may be required.'^ The court will allow an amend- ment of the libel at the trial to supply any omission.* If the libel charge adultery with A. B. and others un- known, the proof at the trial will be confined to inter- course with A. B., unless special notice be given before trial < 2 Phila. 371. » 8 P. L. J. 390 ; 1 Parsons 339. 2 Caeey 161 ; 10 Harris 375. ' 10 Wright 321. 9 P. F. Smith 430. e iq Harris 375. ' 5 P. F. Smith 231. 17 Serg. & Rawle 273. PRACTICE IN PENNSYLVANIA IN CASES OF DIVORCE. 377 of the names, if known, and times, places and circumstances of adultery with others.* The court will not permit a juror to be withdrawn on trial for adultery, without consent.^ A libellant in divorce may suffer a nonsuit on the trial of the issues as in other cases, which nonsuit the Court of Common Pleas has the power to take off. 7. Rule eor Alimony and Counsel Fees. This rule is entered as of course by the attorney of the wife, at any time pendente lite after the respondent's appearance or after the return day of the subpoena.^ On its return, on the day of hearing, service of the rule upon the husband or his counsel must be proved. The wife's affidavit of her* hus- band's circumstances and income is read in support of the rule. If the affidavit of the husband contradict the state- ments of the wife, the judge at his discretion, may require depositions to be taken before disposing of the rule. The amount of alimony pendente lite and the expenses of litigation are not reviewable by the Supreme Court,* but the order for permanent alimony is part of the final decree, and when brought up by appeal with all the evidence is subject to the jurisdiction of the Supreme Court.' The husband may at any time pendente lite, upon affidavit of additional facts, request the judge to grant a rule to vacate or modify the order for alimony, previously granted.^ If the husband neglect to pay the alimony and counsel fee decreed, the wife's attorney enters as of course a rule on him to show cause why an attachment should not issue. On the return day of the rule, if the husband offer no available excuse such as a well- founded plea of poverty, upon proof of service of the rule upon him, the court will order an attachment to issue for contempt of its mandates.' If the husband be the libellant, the court, in lieu of an attachment, usually stays proceedings until the order of alimony is complied with.' ' 4 Yeates 344 ; 17 8. & R. 373. ^ 7 Phila. 864. ' 3 Phila. 317. ' 11 Harris 156 ; 2 Casey 317. s 14 p. f. Smith 366. » 7 Harris 173. ' 1 PUla. 335. « 13 Leg. Int. 350. 378 law of divorce. 8. Examiner. On motion of the attorney for the libellant, the court will appoint an examiner to take the testimony of the libellant's witnesses. This motion in writing is usually handed by the clerk to the judge, who makes the appointment at his option and convenience. If the proceedings are ex parte, the attor- ney for the libellant sometimes suggests in writing the name of the examiner, aliter, leaves a blank, in which the judge in- serts the name. 9. Interrogatories. These must be filed, annexing thereto the names, resi- dences and business of libellant's witnesses. A verbatim copy must be served on the respondent or attorney, and also a notice containing the name of the examiner, the time when and the place where the testimony will be taken, and if an answer have been filed, permission to the respondent to file cross-interrogatories within ten days thereafter, with a list of witnesses. In 7 Phila. 405, it was officially announced that the proper time for the respondent to file interrogatories was when the libellant had finished his case. This copy and notice must be given at least ten days before the evidence is taken before the examiner. If no answer have been filed, the libellant must place an additional copy of the interrogatories and notice in a con- spicuous place in the clerk's office, ten days before the exam- ination. This having been certified to by the clerk should be handed to the examiner with the original papers. If the respondent have no counsel and resides elsewhere, service of the interrogatories may be made upon him in the manner prescribed for service of the subpoena. (See ante, 2.) If after service of the subpoena upon him, the respondent disappear, having no attorney of record, the libellant should frame an affidavit, containing a statement of his futile efibrts to find the respondent, whereupon the judge will grant an order to publish the notice of taking the testimony of libel- lant's witnesses. By a rule in the courts of Philadelphia, the libellant should insert such notice in the Legal Intelligencer of Philadelphia for two weeks, and in one daily paper for fifteen consecutive days. PRACTICE IN PENNSYLVANIA IN OASES OF DIVORCE. 379 If the respondent, having been served with the subpoena, has not appeared within twenty days after the return day, the libellant may proceed ex parte, by giving twenty days' notice of the time and place of taking testimony. The respondent may also examine witnesses by filing in- terrogatories as above, with a similar ten days' notice, and the libellant may file cross-interrogatories thereto. The testimony of either party in his or her behalf may be given, where personal service of the subpoena has been made on the opposite party, or said party appears and defends. The examiner shall require of all the witnesses, precise details of the facts proving the charges, and shall not return general affirmative or negative answers to the questions pro- posed in the interrogatories. • 10. Depositions Elsewhere. " Depositions in other States may be taken as in other suits, on motion of the attorney for either party. The judge there- upon grants permission to take testimony before the com- missioner suggested by the appellant, under the interroga- tories filed, with fifteen days' notice of the time and place of taking the testimony. If service of this notice upon the respondent or his counsel cannot be made, then a similar publication must take place as in the preceding section. The certificate of the commissioner's appointment must be annexed to the interrogatories. A rule to take depositions may be obtained before the return of the subpoena.' Testimony taken before a commissioner outside the State cannot be read, if the attorney, of one party was present when it was taken, though he took no part in the examina- tion, and was not employed to attend.* 11. Examination op "Witnesses. There should be never less than two witnesses examined on behalf of the libellant. The jurat should be attached to the testimony of each witness, and the witness, of course, should append his name to his testimony. > 1 Yeates 404. ^ 6 Barr 449. 380 LAW OF DIVOBCE. The examiner then should collect all the papers in the case, with a copy of the docket entries, and any affidavits of publication or service that may have been filed, and adding his report thereto, should return them to the court. The judge then, if satisfied with the testimony, will endorse "ex- amined and approved," and return the papers to the clerk, if the judge be not satisfied, and stronger evidence can be adduced by the libellant, permission is often given to take additional testimony after due notice. 12. EULE EOR A DeCKBB. This rule, entered as of course, by the libellant's attorney, is to show cause why a decree of divorce a vinculo matrimonii should not be granted. If the respondent can be found, here or elsewhere, it must be personally served by some one on the respondent and not on counsel. By a rule in the Philadelphia courts, if the respondent cannot be found, the rule for a decree must be published once a week for two weeks in two daily newspapers and in the Legal Intelligencer. Proof of the personal service or of the advertisement must be filed and exhibited to the court at the hearing of the rule. The decree then is granted in open court, the costs of the clerk having been paid. If the decree is obtained by fraud, the court can vacate it within the year, although there has been subsequent mar- riage and issue.^ It may vacate it even upon the death of the party.'' The libellant can only have such a decree as is prayed for in the libel,* yet it has been decided, that upon a libel of the wife for the husband's cruelty, praying for a total divorce and alimony, the court may, notwithstanding the informality of the petition, decree a divorce from bed and board with ali- mony, provided the libellant does not object to the decree.* 13. Appeal. An appeal to the Supreme Court may be made by either party within one year after the decree, upon entering into a recognizance with one surety in a sum double the costs ' 2 Jones 338. ' 2 Wright 241. a i Ashmead 52. * 2 Yeates 307. PRACTICE IN PENNSYLVANIA IN CASES OB DIVORCE. 381 incurred, to which an affidavit must be attached, that the appeal is not taken for delay. This affidavit is not a pre- requisite of an appeal, and the court will not dismiss the appeal on the ground that the affidavit was not filed with the record, where the defect has been supplied during the term and before the motion to dismiss the appeal.' Bail on the appeal should be taken before a judge of the Common Pleas Court, and the Supreme Court judges will transmit the record with their judgment to the lower court.^ On an appeal, the matter is taken up de novo and new evidence is admitted f yet it has been decided, that the Supreme Court on such appeal will not retry the matters of fact decided by the jury in the court below ;^ nor will de- positions, taken on the part of the respondent in the court below, be read on the hearing of the appeal.' Second. Where the Respondent cannot 1)6 found. 1. Libel. The libel is filed as in the above case. 2. SUBPCENA. The subpoena is issued as in the preceding instance. The sheriff makes his return of 'E. E. I. {nan est inventus). 3. Alias Subpcena. The attorney for the libellant files a prcecipe, and obtains from the prothonotary an alias subpoena, returnable on the first Monday of .any term subsequent to the term of the re- tm-n day of the original subpoena. This writ is returned by the sheriff with a similar endorse- ment to the original one. If, however, the sheriff finds the respondent, the action is conducted as in the first in- stance. 4. Order oe Publication. The judge orders the publication of notice upon the pe- tition of the libellant's attorney. This petition embodies ' 4 Rawle 341. 2 17 Sergeant & Rawle 373 ; 3 "Wharton 94. 3 3 Binney 30 ; 3 Jones 333. « 5 Sergeant & Kawle 374. 6 9 Barr 166. 382 LAW OF DIVORCE. the return of the sheriff to the original and alias subpoense. This order must, be obtained four weeks before the return day, which must be at least one term subsequent to the re- turn of the alias subpoena. This order is then handed to the sheriff and is published by him once a week for four weeks in one or more newspapers within the county, except in Philadelphia, where it is published, once a week for four successive weeks in both the Legal Intelligencer and in one daily newspaper. To this the sheriff replies "published, sec leg. and IsT. E. I. as to respondent." 5. Examinee. Appointed in the manner prescribed in the first instance. 6. Intbkrogatoribs. These must be filed with names, residence and business of libellant's witnesses. A copy of these should be placed in a conspicuous place in the office of the prothonotary, ten days before the testimony is to be taken before the.examiner. Endorsed thereon must be a notice of the appointment of the examiner, and the time and place of taking the deposi- tions of libellant's witnesses. The prothonotary must certify to this fact. 7. Examination of "Witnesses. As in the first instance {quod vide), attach to the report the affidavit of proper publication with the copies of the advertisements. 8. Rule for a Decree. This rule is entered as of course, and in Philadelphia is pub- lished by the attorney for the libellant once a week for two consecutive weeks both in the Legal Intelligencer, and also in two daily papers. Proof of this advertisement of notice is then filed. The decree is then granted in open court, the costs of the prothonotary having been paid. 9. Costs. The court seldom awards costs, though it has the power ; where the petition is dismissed with costs, &fi. fa. may issue against the wife's next friend for collection.^ ' Pittsburg Leg. J. 9 Dec. 1854. PRACTICE IN PENNSYLVANIA IN CASES OF DIVORCE. 383 II. DIVORCES A MBN8A ET THORO. The proceedings in this action for a partial divorce are the same as in the first instance hereinbefore described. The alimony granted the wife should not exceed one-third of the annual income of the husband, and must be paid by him until a reconciliation takes place, or until the husband, by his petition or libel, offers to cohabit with his wife again, and promises to demean himself properly. The court then suspends the decree, and permits the hus- band to resume his marital relations. If the wife refuse compliance, the court annuls the original decree, unless proof be adduced to show the wife would not be safe with him.' If a reconciliation intervene, and the wife again desires a partial divorce, she must commence de novo.'' The decree is at once entered in the judgment docket of the protbonotary or clerk, and remains a lien on the real es- tate of the respondent, as the arrears become due, up to the period of satisfaction.^ If unpaid, the protbonotary may issue execution upon the written order of the libellant. If the court believe that such lien is not sufficient, it may order the respondent, upon proof of his ownership of enough pro- perty, to give security for the payment of the alimony de- creed, either by bond or by mortgage taken in the name of the commonwealth, or by a deposit of money. The court may enforce its orders by attachment. The personal representatives of the wife cannot recover arrears of alimony from the husband. The creditors of the wife may make a demand therefor, however.* ' 3 Dallas 138; 1 Yeates 78. = 3 Yeates 56. ' 4 P. L. J. 381. * 6 Watts & Sergeant 85. TABLE OF CONSANGUINITY AND AFFINITY. OF THE MAN'S PART. Degrees of kindred and consan- guinity prohibited. A man may not marry his Mother. Father's sister. Mother's sister. Sister. Daughter. Daughter of his son or daughter. Degrees of affinity or alliance A man may not marry his Father's wife. Uncle's wife. Father's wife's daughter. Brother's wife. Wife's sister.^ Son's wife or wife's daugh- ter. Daughter of his wife's sop or daughter. OF THE WOMAN'S PART. A woman may not marry her A woman may not marry her Father. Father's brother. Mother's brother. Brother. Son of her son or daughter. 25 Mother's husband. Aunt's husband. Sister's husband. Husband's brother.' Son of her husband's son or daughter. ' Levitical code. APPENDIX. ECCLESIASTICAL LAW.> DIVORCE. 1. By the canon law, a divorce is not permitted without suffi- cient cognizance had of the cause. But by the civil law, divorces were often made through heat of anger, when the Romans had a mind to put away their wives, by sending them a bill of divorce by one of their freed-men, who was to acquaint the wife ^^ith the purpose and intention of her husband. Aj'l. Par. 225. Dr. Ayliflfe says: By the papal canon law, there are only five causes of divorce, to wit : adultery, impotency, cruelty, infldelitj', 3,nd entering into religion. Ayl. Par. 226. Unto which ought to have been added, consanguinitj\ 2. There be two kinds of divorces : the one that dissolveth the marriage, o vinculo matrimonii, as for consanguinity; and the other a mensa et thoro, as for adultery, because that divorce by reason of adultery cannot dissolve the marriage a vinculo matri- monii, for that the offence is after the just and lawful marriage. 3 Inst. 88. 3. Causes for separation a vinculo, are consanguinity or affinity within the degrees prohibited, also impuberty or frigidity; where the marriage itself was merely void ab initio, and the sentence of divorce only declaratory of its being so. Insomuch that in debt upon an obligation, though the defendant pleaded, that at the time of the bond she was wife to a person there named ; yet the plaintiff, showing that a former wife was alive at the time of his marrying the defendant, and that thereupon the marriage with him had been adjudged null and void in the spiritual court, judgment was given against her, because the marriage being merely void, she was always sole: And it was further said, that in such case the divorce was only declaratory, and there needed not any such sentence. Cro. El. 85*7 ; Gibs. 446. ' Richard Burn, LL.D. London, 1788. APPENDIX. 387 The effects of that original voidance and nullity are, that the wife is barred of dower, and the issue are illegitimate ; and that the persons so divorced may marry any others. Gibs. 446. Concerning divorce a vinculo in case of impuberty, or the male or female's marrying under the marriageable years, that is, the first under fourteen, or the second under twelve, the books of common law do confirm and ratify this nullity; not only by declaring, that in case of such divorce, the woman may have an assize for the land given in frank-marriage, but also in affirming further, that though the man hath issue by such marriage, and is divorced, and marries again and hath issue, and dies, the issue of the- second wife shall be his lawful heir ; nor will any aver- ment of consenting and living together after the marriageable years be received or admitted in the temporal court, after a divorce in the spiritual court made upon the original nullity, and unrepealed. Gibs. 446. In like manner, do the books of common law resolve, in case of divorce a vinculo for frigidity, after three years' trial and examination, and sentence in the spiritual court, for the perpetual impotency of generation. As it was in Bury's case, M. 40 & 41 El. who was so divorced, but afterwards married another wife, and had children by her: Upon which it was urged, that the church being evidently deceived as to his perpetual impotency, the divorce thereupon was null ; and if so, that the second mar- riage was unlawful, and the issue illegitimate. But the court resolved, that since there had been a divorce for frigidity or impotency, it was clear that each of them might lawfully marry again ; and though it should be allowed, that the church appear- ing to have hg^en deceived in the foundation of their sentence, the second marriage was voidable, yet till it should be dissolved, it remained a marriage, and the issue during the coverture lawful. Gibs. 446. But though a sentence of divorce, given in the spiritual court, may be repealed after the death of the parties, yet if any of the parties be dead, before such sentence given, suit cannot be in the spiritual court to declare the marriage void, and bastardize the issue ; the marriage being already dissolved by death, and the trial whether legitimate or not, in order to inheritance, originally belongeth to the king's court, and the sentence in the spiritual court being given only pro salute animse, it comes too late. Gibs. 446; Yiner; Bast. G. 4. 388 LAW OF DIVORCE. 4. Divorce a thoro et mensa is, when the use of matrimonj', as the cohabitation of the married persons, or their mutual conver- sation, is prohibited for a time, or without limitation of time. And this is in cases of adultery, cruelty, or the like; in which the marriage, having been originally good, is not dissolved, nor affected as to the vinculum or bond. And this is so by the common as well as by the canon law; insomuch that the wife so divorced, having sued for a legacy left to her, and the husband having given a release, such release hath been adjudged good, notwithstanding the divorce. Nor doth this kind either bar the wife of her dower, or bastardize the children ; but entitles her to alimony, which the ecclesiastical court assigns, in proportion to the circumstances and condition of her husband; and no pro- hibition will lie. . But as to the having again the goods she brought, or so much as is not spent ; that, in the law books, is meant only of divorce a vinculo, or when there was a nullity of marriage ab initio, so as to be really no marriage. Gibs. 335. But the children which she hath after the divorce, shall be deemed bastards ; for a due obedience to the sentence will be in- tended, unless the contrary be shown. 1 Salk. 123. By Can. 107. In all sentences pronounced only for divorce and separation a thoro et mensa, there shall be a caution and restraint inserted in the act of the said sentence, that the parties so separated shall live chastely and continently; neither shall they, during each other's life, contract matrimony with other person. And for the better observation of this last clause, the said sentences of divorce shall not be pronounced, until the party or parties requiring the same, have given good and suflBcient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition. And this doctrine, that neither of the parties shall contract matrimony during each other's life, hath been confirmed by the temporal judges in the case of Foliambe, who having been divorcd from his wife for incontinency on her part, married again during her life ; and the second marriage was declared to be void, because it was only a divorce a thoro et mensa. And the same is the doctrine of the canon law; and of the same tenor are the ancient constitutions of th& English Church. Nevertheless divers acts of parliament, for the divorce of particular persons in the case of adultery, agreeably to what the Reformatio legum did propose in general, have allowed a liberty to the innocent person of marrying again. Gibs. 446 ; Mo. 683. APPENDIX. 389 And by Can. 108. If any judge, giving sentence of divorce or separation, shall not fully keep and observe the premises; he shall be, by the archbishop of the province, or by the bishop of the diocese, suspended from the exercise of his office for the space of a whole year; and the sentence of separation so given, con- trary to the form aforesaid, shall be held void to all intents and purposes of the law, as if it had not at all been given or pro nounced. A divorce for adultery was anciently a vinculo matrimonii; and therefore in the beginning of the reign of Queen Elizabeth, the opinion of the Church of England was, that after a divorce for adultery, the parties might marry again : but in Foliambe's case aforesaid, H. 44 El. in the star chamber, that opinion was changed; and Archbishop Bancroft, by the advice of divines, held that adultery was only a cause of divorce a mensa et thoro. 3 Salk. 138. 5. Can. 105. Forasmuch as matrimonial causes have been always reckoned and reputed amongst the weightiest, and there- fore require the greater caution when they come to be handled and debated in judgment, especially in causes wherein-matrimony, having been in the church duly solemnized, is required upon any suggestion or pretext whatsoever to be dissolved or annulled; we do straitly charge and enjoin, that in all proceedings to divorce and nullities of matrimony, good circumspection and advice be used, and that the truth may (as far as is possible) be sifted out- by the deposition of witnesses and other lawful proofs and evictions, and that credit be not given to the sole confession of the parties themselves, howsoever taken upon oath, either within or without the court. The rule of the canon law upon this head, is in a decretal epistle of Pope Celestine the Third; who enjoineth, that the parties be not separated by their own confession only, or by the rumor of the neighborhood: For if they did believe that the ecclesiastical judge would concur with them, some persons would collude together, and confess incest, for the avoiding of their marriage: And the rumor of the neighborhood ought not so far to be judged valid, as to disannul marriages; unless other reasonable and probable evidences do occur. Gibs. 445. This prohibition against accepting the sole confession of the parties was expressly renewed in the canons of 1597. And how great need there was of such a prohibition will appear to any one who shall consult the ancient acts of courts before those 390 LAW OF BIVORCB, times, and shall see there how common it was to pronounce separations upon the sole confession of the parties, and how numerous these separations were, so long as that continued to be the rule. Gibs. lb. In 2 Mod. 314, there is a remarkable instance of this kind, wherein a prohibition was prayed in behalf of the children, who were in danger to be bastardized b}' such a fraud. Collet married Mary, and had children by her ; against whom it was libelled in the spiritual court, that he had before married Anne the sister of Mary: He and Anne appear, and confess the matter upon which (as the report sets forth) a sentence of divorce was to pass. Whereas in truth. Collet was never married to Anne, but it was a contrivance between him and his wife to get them- selves divorced, after they had lived together sixteen years. Gibs. 445. And sometimes women were suborned to personate the wife, who were to come and confess the adultery; and so the real wife might be divorced, whilst she knew nothing at all of the mattfer- And Mr. Gierke says, he knew two instances in his time, where suppositious women (not the wives of the parties) were suborned to come and confess the adultery, as if they had been the real and true wives. 1 Ought. Z\%. 6. If the party accused shall prove, that the accuser hath also committed adultery; this is a compensation for the crime, and the accuser shall not prevail in his suit. 1 Ought. 317. In like manner, if the party accused shall prove, that the accuser before the commencement of the suit had probable knowledge of the crime committed, and yet afterwards had carnal intercourse with the accused; in such case the accuser shall not obtain a sentence of divorce, for the crime shall be supposed to have been remitted. 1 Ought. 317. And probable knowledge in this case is, if the husband, sus- pecting his wife, shall charge her with the offence, and she con- fess it: Or if the witnesses, whom he shall afterwards produce, shall signify to him before the commencement of the suit, that they can testify' the offence from their own sight and knowledge ; Or if the husband shall take her in the act of adultery: In all which cases, nevertheless, if the husband shall afterwards have carnal knowledge of his wife, he remitteth the injury, and shall not have a divorce. Therefore if he desires to be divorced, he must abstain from her bed, although he doth not presently turn her out of doors. 1 Ought. 317. APPENDIX. 391 7. Can. 106. No sentence shall be given either for separation a thoro et mensa, or for annulling of pretended matrimony, but in open court, and in the seat of justice, and that with the knowledge and consent either of the archbishop within his province, or of the bishop within his diocese, or of the dean of the arches, the judge of the audience of Canterbury, or of the vicars general, or other principal officials, or sede vacante of the guardians of the spiritualties, or other ordinaries to whom of right it appertaineth, in their several jurisdictions and courts, and concerning them only that are then dwelling under their jurisdictions. 8. M. 1. Car. Green's case. Green prayed a prohibition to the ecclesiastical court at Salisbury, because his wife sued him there to be separated from him, propter ssevitiam. And sentence was there given for the husband against the wife; and he was enforced to pay all the costs for his wife. And afterwards she appealed ; and because the husband would not answer the appeal against himself, and pay for the transmitting of the record, he was there- fore excommunicated ; and now prayed a prohibition. The court conceived the case to be very hard, that he should be enforced to spend his money against himself. But because it was alleged, that the course was so in the spiritual court, they would advise' until the next term ; and ordered to stay their proceeding in the mean time. Cro. Car. 16. ALIMONY. 1. The ordinary hath the proper cognizance of alimony, and no other court : It is true, there lies an appeal, but still it is to the ecclesiastical judge; and if the person condemned will not obey the sentence of that judge, he may be excommunicated. Ayl. Par. 59- In the case of Angier and Angler, T. 1718: The wife by her next friend brought a bill against her husband, for a special execution of articles, whereby he had agreed with a friend of hers to allow her 521. a year separate maintenance. Great misbehavior to each other was proved in the cause. And it was proved by him, that she had libelled in the spiritual court for alimony ; and when that cause was depending there, these articles were made ; and that he was desirous to be reconciled to her, and therefore stopped the allowance: It was objected, that this would be decreeing a separation; which belongs to the spiritual court. Alimony continues only till the parties are reconciled; and if the articles should be decreed, a future reconciliation could not 892 LAW OP DIVORCE. set them aside. But the lord chancellor decreed an execution. He said it was no invasion upon the spiritual court; and if not decreed here, they can be of no force anywhere ; for the spiritual court cannot decree a performance of them. If the husband make a separate provision for her, he is not at law chargeable with her debts. And he ordered the master to settle an indemnity for him against her debts ; and decreed the arrears ; and said, it was not a decree for alimony or separation; for when they come together again, the articles would be no longer binding. Prec. Cha. 496. 2. A wife cannot sue for alimony, during the cohabitation. 4 Vin. 116. And although they be separated, yet if the husband maintains the wife, it bars her claim in respect thereof. Id. Also if she elopes from her husband, the law will not compel the husband to allow her alimony. Ayl. Par. 58. 3. A wife having separate allowance, and being separated, may make a gift of what she saves, as a feme sole. Vin. lb. And in the case of Button and Button, T. 1 G. Lord Chan- cellor Cowper allowed the wife to keep the place which she had bought, or had been given to her, during the separation. Id. So if she sue for defamation or other injury, and has costs, and the husband releases them, this shall not bar the wife; for these costs come in lieu of what she hath spent out of her alimony, which is a separate maintenance, and not in the power of her husband. 1 Salk. 115.