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charged, is not affected by the decree, though the legitimacy of other children of the wife may be determined by the court upon the proofs in the cause. (a) The defendant, by way of punishment for the guilt, is disabled from remarrying during the life of the other party. (6) 2
The statute further provides, that if the wife be the complainant, the court is to make a suitable allowance, in sound discretion, out of the defendant's property, for the maintenance of her and her children, and to compel the defendant to abide the decree. The chancellor is also to give to the wife, being the injured party, the absolute enjoyment of any real estate belonging to her, or of any personal property derived by title through her, or acquired by her industry. (@) If, on the other hand, the husband be the com
(a) N. Y. Revised Statutes, vol. ii. p. 145, sec. 40, 41, 43, 44. (6) Ibid. sec. 49.
(c) Ibid. scc. 45, 46. Pending a suit in chancery by the wife, or in the consistory court by the husband, for a divorce, it is a general rule of ecclesiastical law that the court may, ander proper circumstances, and in its discretion, allow the wife, by an order on the husband, a sum of money for carrying on the suit, as well as for immediate alimony 2 Dickens, 498,582. Oughton, 306, tit. 206–209, sec. 7. Earl of Portsmouth v. Countess of Portsmouth, 3 Addams, 63. Fournel, Traité de l'Adult. 365. Burn, tit. Marriage, ch. 11, sec. 8. 2 Hagg., Cons. 199, 201. Mix v. Mix, 1 Johns. Ch. 108. Denton v. Denton, Ibid. 364. The New York Revised Statutes, vol. ii. p. 148, sec. 58, have expressly enforced this reasonable doctrine, by declaring, that in every suit for a divorce or separation, the court in its discretion, may require the husband to pay any sum necessary to enable the wife to carry on the suit during its pendency. But if the bill for divorce be filed by the husband, the wife will not be allowed alimony, or an order for moneys to enable her to defend the suit until she has, by answer, disclosed
Cropsey o. Ogden, 1 Kern. N. Y. 228. A woman married elsewhere may contract a valid marriage in Massachusetts during the life of her former husband, if the divorce were decreed in another state for acts of hers, which would not be a cause of divorce in Massachusetts. Clark v. Clark, 8 Cush. 385.
& But a woman who has obtained a bill of divorce a vinculo matrimonii for the adultery of her husband, has been held not entitled to dower after his death. Wait v. Wait, 4 Barb. N. Y. 192. In the Court of Appeals, to which this case was subsequently (1850) carried, it was held that the wife was entitled to dower. Wait v. Wait, 4 Comst. 95. And in Forest r. Forest, 6 Duer. (N. Y.) 102, it was held, that a decree of alimony, on condition that the wife release her claim of dower, is improper.
* Daiger v. Daiger, 2 Maryl. Ch. Dic. 335, Coles v. Coles, Id. 341. Tayman v. Tayman, Id. 393. Begbie v. Begbie, 3 Halst. Ch. 98. See, too, McGee v. McGee, 10 Georg. 477. Alimony, pendente lite, was granted to the wife on her sworn answer averring her innocence of the adultery charged by the bill; Bray v. Bray, 2 Halst. Ch. 27; but denied where there appeared to be no foundation for the suit. 4 Halst. Ch. 540. And see Taylor r. Taylor, 1 Jones (Law) 528. In Lynde v. Lynde, 4 Sandf. Ch. 373, while a suit for divorce was pending, the court ordered the husband to pay the expense of the wife's residence in a tropical climate.
plainant, then he is entitled to retain the same interest in his wife's real estate which he would have had if the marriage had continued ; and he is also entitled to her personal estate and choses in
action, which she possessed at the time of the divorce, * 100 equally as if * the marriage had continued ; and the wife
loses her title to dower, and to a distributive share in the husband's personal estate. (a)
These are the statute provisions in New York on the subject of a divorce a vinculo matrimonii; and it is requisite, if the marriage was solemnized out of the state, distinctly and certainly to make it appear upon the bill, that both parties were inhabitants of the state at the time of the commission of the adultery; or that the offence was committed within the state, and the injured party an actual inhabitant at the time of exhibiting the bill. It must also appear,
'the nature of her defence. Lewis v. Lewis, 3 Johns. Ch. 519. In North Carolina, the courts have no power to assist the wife in the above cases, pendente lite, and Mr. Justice Gaston questions the policy of giving any such power. Wilson v. Wilson, 2 Dev. & Batt., 377. I am entirely convinced, however, from my own judicial experience, that such a discretion is properly confided to the courts. In New Hampshire, alimony is understood to be a provision made to the wife upon a divorce a vinculo; and it is not allowed in any other case. Parsons v. Parsons, 9 N. Hamp. 309.5
(a) N. Y. Revised Statutes, vol. ii. p. 146, sec. 47, 48. The Revised Statutes of Massachusetts of 1836, part 2, tit. 7, ch. 76, sec. 27, 28, and of Vermont, 1839, pp. 325, 326, give the court similar discretion on divorce, touching the care and maintenance of the minor children, and the restoration to the wife of her estate, and of alimony, if necessary, if she be the innocent party. So, in New Jersey, the jurisdiction in all cases of divorce is in the Court of Chancery, proceeding regularly by bill, as in other cases. The bill may be filed if either party was an inhabitant of the state at the time of the injury complained of; or where the marriage was in the state, and the complainant a resident therein at the time of the injury and the filing of the bill; or where the adultery was committed in the state, and either party a resident when the bill was filed. Elmer's Digest, 139. In the case of Charruaud v. Charruaud, in Chancery, before the assistant V. C., in 1847, (New York Legal Observer, vol. i. p. 134,) it was adjudged, that, upon the principles of the common law, a divorce of the wife a vinculo for adultery annuls every provision made for her in marriage articles or a marriage settlement, in the nature of jointure or otherwise, as well as any provision in articles executed upon separation.
5 Sheafe v. Sheafe, 4 Foster, (N. H.)564. In Rhode Island, the court has no power to order the husband to defray the wife's expenses during the pendency of the petition. Sanford v. Sanford, 2 R. I. 64. Nor could alimony be granted in such a case in Massachusetts before the statute of 1855. Shannon v. Shannon, 2 Gray, 285. See Mass. Laws, 1851, c. 82; 1855, c. 65; and the “ Act in relation to Libels for Divorce," 1855, c. 137. The Court of Chancery of New Jersey has no power to decree alimony, except as concomitant with divorce or under the 10th section of the statute. (R. L. 924.) Yule v. Yule, 2 Stockt. (N. J.) 138. Alimony, pendente lite, may be granted in Arkansas. Bauman v. Bauman, 18 Ark. 320.
if the parties were married within the state, that the complainant was an actual resident at the time of the offence and of bringing the suit; and this means that the party's domicil was here, or that he had fixed his residence animo manendi. (6) Though the fact
(6) Mix v. Mix, 1 Johns. Ch. 204. Williamson v. Parisien, Ibid. 389. N. Y. Revised Statutes, vol. ii. p. 144, sec. 38. It was declared in Indiana, by law, in 1829– 1830, that the laws concerning divorce applied only to citizens who had resided a year within the state. In Ohio, no petition for a divorce is sustained, unless the husband or wife applying has been a bonâ fide resident in the state for two years, and an actual resident, at the time, of the county where the application is made. In that case the application is to be sustained, whether the marriage or the cause of divorce occurred within the state or elsewhere. Statutes of Ohio, 1824, 1827. In Michigan, the petitioner in equity for a divorce must have been a resident of three years. Act of April 4th, 1833. So, in North Carolina, on application for a divorce, the party applying must have resided within the state for three years immediately preceding the filing of the petition or bill, unless it be in the case of a divorce a mensa for cruel treatment. There is this further check, that the facts forming the ground of the complaint in every case must have existed to the knowledge of the party at least six months prior to the suit. IN.C. Revised Statutes, 1837, p. 240. In Missouri, petitioner for a divorce must have had a permanent residence of one year, and the cause for it must have happened within the state. R. S. of Missouri, 1835, p. 225.3 In Maine, it is held not to be necessary as a foundation of jurisdiction in a suit for divorce, unless made so by positive statute, that the fact of adultery should have been committed within the state, in whose tribunals a decree of divorce is sought for that cause. Harding v. Alden, 9 Greenl. R. 140. The Vermont statute has wisely guarded against imposition and abuse of jurisdiction on this subject, by declaring that no divorce shall be decreed for any cause, if the parties had never lived in the state as husband and wife ; nor unless tho libellant had resided in the state for one year next preceding the suit; nor if the cause accrued out of the state, unless the parties had, before it occurred, lived as husband and wife in the state, nor unless one of them was then living in the state. Revised Statutes of Vermont, 1839, p. 324. So, in New Hampshire, a divorce was refused, where the parties at the time of the divorce resided out of the state. Clark v. Clark 8 N. Hamp. 21.*
1 Wilcox v. Wilcox, 10 Ind. 436.
: This provision is not complied with by considering the domicil of the husband to be the domicil of the wife. Schonwald v. Schonwald, 2 Jones Eq. (N. C.) 367.
3 Kruse v. Kruse, 25 Miss. (4 Jones) 68.
* A libel for a divorce froin a marriage, contracted in another state, must aver that the parties resided within the state when the alleged cause of divorce arose. Batchelder o. Batchelder, 14 N. Hamp. 380. Hopkins v. Hopkins, 35 N. Hamp. 474.
In Rhode Island, the court may now dispense with the former requirement of three years' residence, and take cognizance of petitions for divorce, if the causes of divorce occurred in that state, or were causes of divorce in the state in which they occurred. Williams o. Williams, 3 R. I. 185. Ditson v. Ditson, 4 R. I. 87. See Hare v. Hare, 10 Tex. 355. Harrison r. Harrison, 19 Ala. 499.
In Wisconsin, the law on this subject is very lax. For it was decided in Hubbell v. Hubbell, 3 Wis. 662, that the courts of that state have jurisdiction to grant a divorce, whenever the complainant is domiciled within the state, although the marriage and causes of divorce
of adultery be made out, it does not follow, as a matter of course, that a divorce is to be awarded, for the remedy by divorce is purely a civil and private prosecution, under the control and at the volition of the party aggrieved, and he may bar himself of the remedy, in several ways, by his own act. (1.) Neither party can obtain a divorce for adultery, if the other party recriminates, and can prove a correspondent infidelity. The delictum, in that case, must be of the same kind, and not an offence of a different character. (c) The compensatio criminis is the standard canon law of England in questions of divorce, and it is founded on the principle that a man cannot be permitted to complain of the breach of a contract which he had first violated; and the same principle, it is to be pre
sumed, prevails in the United States. (d) (2.) So, if the * 101 injured * party, subsequently to the adultery, cohabits with
the other, or is otherwise reconciled to the other, after just grounds of belief in the fact, it is, in judgment of law, a remission of the offence, and a bar to the divorce. This is a general principle everywhere pervading this branch of jurisprudence. (a)
(c) Johnson v. Johnson, 4 Paige, 460. In Eldred v. Eldred, 2 Curteis, 376, and Dillon v. Dillon, 3 Ib. 86, it was held that the wife could not set up a charge of cruelty in bar of her husband's remedy of divorce for adultery, nor will malicious desertion be a bar, said Dr. Lushington, ubi supra.
(d) Oughton's Ordo Judiciorum, vol. i. tit. 214. Forster v. Forster, 1 Hagg. Cons. 144. Proctor v. Proctor, 2 Ibid. 292. Chambers v. Chambers, 1 Ibid. 439. Astley o. Astley, 1 Hagg. Eccl. 714. Beeby v. Beeby, Ibid. 789. Wood v. Wood, 2 Paige 108. Whittington r. Whittington, 2 Dev. & Batt., 64.
(a) Oughton's Ordo, ubi supra, Burn's Eccl. Law, tit. Marriage, sec. 11. 1 Ersk. Inst. 113, 114. Anon. 6 Mass. 147. Williamson v. Williamson, 1 Johns. Ch. 492. Condonation is conditional forgiveness, and founded on a full knowledge of all antecedent guilt. Bramwell v. Bramwell, 3 Hagg. Eccl. 629. Ibid. 351. Dellibero, Delliber, 9 Conn. 233. See, also, Code Napoleon, art. 272. Civil Code of Louisiana, art. 149. Van Leeuwen's Com. on the Roman-Dutch Law, p. 84, to the same point of condonation. Condonation, or the forgiveness of the offence, is of two kinds : 1. By an express forgiveness or reconciliation; 2. A tacit remission of the offence by a return to connubial intercourse. Snow v. Snow, Consist. Court, London, The Jurist, No. 6, 1842. Condonation is not presumed as a bar so readily against the wife as against the husband, for she has not the same control. Condonation is accompanied with an implied condition, that the injury shall not be repeated; and a breach of the condition, even though com
nave occurred elsewhere, and although the defendant has never been in the state or been served with process. And see Gleason v. Gleason, 4 Wis. 64. As to the jurisdiction in Pennsylvania, see Bishop o. Bishop, 30 Penn. (State) 412. And as to Alabama, Hanberry 0. Hanberry, 29 Ala. 719.
1 Morrell v. Morrell, 1 Barb. (N. Y.) 318.
(3.) By active procurement or passive and conscious toleration of his wife's guilty conduct. (6) It is also well established, that though mere time is no bar in the case of a woman, (c) yet that lapse of time, or a long tacit acquiescence of the husband in his wife's infidelity, even without cohabitation, but without any disability on his part to prosecute, will be deemed equivalent to a condonatio injuriæ, and bar a prosecution for a divorce, unless the delay be satisfactorily accounted for. The husband is not to be permitted, at any distance of time, to agitate such inquiries, and especially where his tacit acquiescence continued after his wife had formed another matrimonial connection, and he slumbered, in uncomplaining silence, until she became the mother of a new race of children. (d) The statute law of New York has declared, that the court may refuse to decree a divorce, though the fact of adultery be established. (1.) If the offence was committed by the procurement or with the connivance of the complainant. (2.) If it has been forgiven, and the forgiveness proved by express proof, or by the voluntary cohabitation of the parties with the knowledge of the fact. (3.) Where the suit has not been brought within five * years after the knowledge of the adultery. (4.) Or where
* 102 the complainant has been guilty of the same offence. (a) All these exceptions, except the positive limitation as to time, were, as we have already seen, settled and acknowledged principles of general jurisprudence applicable to the subject.
mitted out of the jurisdiction of the court, revives the right to remedy for the former injury. Durant v. Durant, 1 Hagg. Eccl. 733, 752, 761, 786, 793. Johnson v. Johnson, 4 Paige 460. Burr v. Burr, 10 Paige, 20. Condonation is accompanied with this further condition in the English law, that the wife shall be treated with conjugal kindness. Durant v. Durant, sup. Bramwell v. Bramwell, 3 Hagg. Eccl. 635. Johnson v. Johnson, 14 Wendell, 637. A guilty connivance on the part of the wife to her husband's adultery, is not to be established without grave and conclusive proof. 3 Hagg. Eccl. 351.
(6) To constitute a bar, by the ecclesiastical law, to the husband's complaint of the adultery of the wife, arising from his presumed consent, there must be corrupt connivance on his part. He must intentionally invite or encourage licentious conduct in the wife, or be knowingly accessory or privy to the adultery. Rogers v. Rogers, 3 Hagg. Eccl. 57. Rix v. Rix, Ibid. 74. Timmings v. Timmings, Ibid. 76. Lovering v. Lovering, Ibid. 85. Moorsom v. Moorsom, Ibid. 87. Crewe v. Crewe, Ibid. 129, 131, 133. Hoar v. Hoar, Ibid. 137. Gilpin v. Gilpin, Ibid. 150.
(c) Popkin v. Popkin, 1 Hagg. Eccl. 765, note.
(d) Williamson v. Williamson, ubi supra. Best v. Best, 2 Phill. 161. Mortimer v. Mortimer, 2 Hagg. Cons. 313. Whittington v. Whittington, 2 Dev. & Batt. 64. (a) N. Y. Revised Statutes, vol. ii. p. 145, sec. 42.