Skip to main content

Full text of "A treatise on the law of divorce and annulment of marriage : including the adjustment of property rights upon divorce .."

See other formats 


(5orn?U  Sam  ^rljool  SIthtarg 


KF  535.N4r"' ""'"""•'"■"'"'>' 


and  ann 


Cornell  University 
Library 


The  original  of  tiiis  book  is  in 
tine  Cornell  University  Library. 

There  are  no  known  copyright  restrictions  in 
the  United  States  on  the  use  of  the  text. 


http://www.archive.org/details/cu31924018828727 


A  TREATISE 


ON  THE 


LAW  OF  DIVOECE 


AND 


ANNULMENT  OF  MAREIAGE 


INCLTJDINa 


THE  ADJUSTMENT  OF  PROPERTY  RIGHTS  UPON  DIVORCE, 

THE  PROCEDURE  IN  SUITS  FOR  DIVORCE,  AND 

THE  VALIDITY  AND  EXTRATERRITORIAL 

EFFECT  OF  DECREES  OF  DIVORCE 


WILLIAM  T.  NELSON 

Of  the  Omaha,  Neb.,  Bas 


IN  TTVO  VOLtTMBS 

YOLUME  II 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1895 


Copyright,  1895, 

BY 

WILLIAM  T.  NELSON. 


STATE  JOUENAL  PEIirnNG  COMPANY. 

Frintebs  and  Stbheotypbiis, 

uaoisom,  wis. 


TABLE  OF  CONTENTS. 


YOLUME  II. 


Sec. 
565. 
566. 
567. 
568. 
569. 
570. 
57J. 


575. 
57a 

577. 

578. 

579. 

580. 

581. 

583. 

583a. 

583. 

584 

585. 

586. 

587. 

588. 

589. 

590. 

591. 


ANNULMENT  OF  MARRIAGE. 


In  general     , 
Divorce  and  annulment  disti 
Void  and  voidable         . 
Void  marriages     .         . 
Voidable  marriages 
Defenses  to  nullity  suit 
Practice  and  procedure 


nguished 


PRIOR  MARRIAGE  UNDISSOLVED, 


In  general 

General  doctrine  of  this  chapter 

When  prior  marriage  is  undissolved  the  second  marriage  is 

void 

When  second  marriage  is  voidable  under  statutes 

Void  although  divorce  subsequently  obtained 

Presumptions  in  favor  of  marriage 

Knowledge  that  disability  has  been  removed 

Marriage  before  decree  nisi  is  made  absolute 

Marriage  during  time  for  appeal 

Marriage  after  a  decree  a  mensa  . 

Belief  that  prior  marriage  was  dissolved  by  death 

Belief  that  prior  marriage  was  dissolved  by  divorce 

Marriage  after  void  decree  of  divorce 

Decree  obtained  by  fraud     .... 

Remarriage  of  guilty  party 

Bigamy  as  a  cause  for  divorce 

Effect  of  void  marriage  at  the  common  law 

Void  marriages  under  the  civil  law 


Page. 
539 
530 
583 
533 
534 
585 
536 


537 
538 

539 
540 
641 
543 
545 
546 
547 
548 
549 
549 
650 
554 
555 
658 
559 
560 


FRAUD,  ERROR  AND  DURESS. 

600.  In  general 563 

601.  Jurisdiction  in  the  absence  of  statute 665 


IV  TABLE  OF  CONTEKTS VOLUME  11. 

Sea  Page. 

602.  Fraud  where  the  marriage  is  not  consummated  .        .        .  566 

603.  Affirmance  of  marriage 568 

604.  Misrepresentation  of  chastity 569 

605.  Representing  her  child  legitimate .570 

606.  Pregnancy  concealed  from  innocent  husband      .         .         .  570 

607.  Concealed  pregnancy,  husband  guilty  of  fornication  .        .  573 

608.  False  representation  as  to  paternity 574 

609.  False  representation  as  to  paternity  —  Child  born  before 

marriage • 575 

610.  Pretended  pregnancy 576 

611.  Conspiracy  to  bring  about  marriage 577 

613.    False  representations  as  to  wealth  and  character        .         .  579 

613.    Fraud  in  obtaining  license  —  False  ceremony      .        .         .  583 

614    Misrepresentation  of  age      .......  584 

615.  The  evidence  of  fraud  .         .  ' 584 

616.  Error  or  mistake 586 

617.  Duress,  in  general 587 

618.  "What  duress  is  sufficient 588 

619.  Unlawful  arrest  or  imprisonment 590 

620.  Marriage  under  arrest 591 

691.    Threats  of  arrest  and  imprisonment 591 

633.    Duress  from  other  parties 593 

633.  Effect  of  consummation 593 

634.  Pleading  and  evidence 593 

INSANITY  AND  MENTAL  INCAPACITY. 

650.  In  general 594 

651.  Insanity  as  a  cause  for  divorce 595 

653.  Post-nuptial  insanity    .         .     ■ 596 

658.    Not  mere  mental  unsoundness 597 

654.  The  test  of  business  ability  .         .         .         .         .       , .         .  598 

658.  Ability  to  understand  the  nature  of  the  marriage  contract  600 

659.  To  what  extent  must  the  nature  of  the  marriage  contract 

be  understood _  601 

660.  Insane  delusion 603 

661.  Lucid  interval 604 

663.    Hereditary  insanity 604 

663.  Other  forms  of  mental  incapacity 605 

664.  Marriage  while  drunk 605 

665.  Suicide 606 

668.    Burden  of  proof  and  presumptions 607 

667.  Effect  of  previous  finding  of  insanity  by  inquisition   .         .  607 

668.  Conduct  at  marriage  ceremony 609 

669.  Deliberate  preparations  for  marriage 609 


TABLE  OF  CONTENTS VOLUME  II.  V 

Sea  Page. 

670  AflBrming  marriage      .        .        .       _ 610 

671.  How  marriage  disafiirmed 611 

672.  Statutes  declaring  marriage  void  or  voidable      .        .        .613 

IMPOTENCY. 

675.  In  general 615 

676.  Impotency  defined 617 

677.  Physically  incapacitated 617 

678.  Matrimonial  incapacity 617 

679.  Physically  incapable 617 

680.  Must  be  permanent  or  incurable 618 

681.  Forms  of  impotence 619 

682.  Refusing  intercourse 620 

683.  Impotence  as  a  fraud 630 

684.  What  will  bar  the  action  —  Adultery  not  a  bar  .        ,        .621 

685.  Age  of  parties 621 

686.  Deed  of  separation  not  a  bar 621 

687.  Recrimination  not  a  bar 621 

688.  Delay 633 

689.  Insincerity 623 

690.  Estoppel  —  Impotent  party  as  plaintiff         ....  634 

691.  Pleading  —  In  general 624 

693.  How  impotency  alleged 625 

693.  Different  forms  of  impotency  may  be  joined      .         .        .  626 

694.  Evidence  —  In  general 626 

695.  Burden  of  proof 628 

696.  Triennial  cohabitation 628 

697.  Inspection  of  the  person 629 

698.  Power  of  our  courts  to  compel  inspection    ....  630 

699.  Power  denied 631 

700.  When  inspection  necessary 632 

701.  Inspection  by  commission 634 

702.  Personal  injury  cases 635 

703.  Order  for  inspection,  how  enforced 637 

704.  Effect  of  decree  —  Whether  divorce  or  annulment      .        .  638 

705.  Impotency  renders  the  marriage  voidable    ....  638 

CONSANGUINITY  AND  AFFINITY. 

710.  In  general 640 

711.  The  Levitical  degrees  and  the  common  law         .        .        .  641 
713.  How  the  degrees  are  computed    .        .        .        .  ,     .        .  643 

713.  Consanguinity 643 

714.  Affinity 644 

715.  Modern  statutes 644 


VI  TABL-E  OF   CONTENTS  —  TOLITME  n. 


See.  MISCEGENATION.                                  p^ge. 

716.  In  general 6*6 

717.  Mulatto 64? 

718.  Persons  of  color  and  white  persons 648 

719.  Civil  rights  bill,  or  fourteenth,  amendment ....      648 
730.  Siich  marriages  valid  unless  declared  void  by  statute.        .      650 


WANT  OF  AGE. 

731.    In  general    .       ' 651 

733.    Consent  of  parents ,       .         .  653 

733.  Affirming  marriage 654 

734.  How  marriage  disalHrmed 654 

725.    Statutes  affecting  the  common-law  age  of  consent      .        .  666 


PARTIES. 

736.    Who  may  maintain  a  suit  for  divorce  or  annulment 

727.  Third  persons  as  defendants — Eight  to  intervene 

728.  Coverture,  infancy  and  guardianship  . 

739.    Insane  persons  as  parties      .         .         .         .         . 
729a.  Death  of  parties  and  revival  of  suit 


659 
660 
663 
665 
670 


PLEADING. 

730.  The  petition 675 

781.  Allegation  of  jurisdiction 676 

733.  How  marriage  alleged  .         . , 678 

733.  Plaintiff  need  not  anticipate  defenses 679 

784  Premature  suit ,        ,  680 

735.  Joinder  of  causes 681 

736.  Causes  for  ancillary  relief  may  be  joined     ....  683 

737.  The  prayer 684 

788.  Verification 686 

739.  Bill  of  particulars 687 

740.  Supplemental  pleadings 688 

741.  Amendments 689 

743.  Demurrer      ..........  691 

748.  Answer 693 

744  Cross-bill  for  affirmative  relief 693 

745.  Statutes  permitting  cross-bills 697 

746.  Applications  for  temporary  alirflony 760 

747.  Applications  for  permanent  alimony  .        ,        .        .        ^  70t 

748.  Decree •fH^ 


TABLE   OF  CONTENTS  —  VOLUME   IL  VU 

ggp  FORMS  OF  PLEADINGS  AND  DECREES.  pg^gg_ 

750.  In  general 708 

751.  Petitions  for  divorce 707 

753.    Petition  for  divorce  on  account  of  cruelty  ....  711 

753.    Answers  iiLsuits-for  divorce 713 

754    Answer  and  cross-petition  for  divorce          .        .        .        .  713 

755.  Petition  for  annulment  of  marriage 714 

756.  Petition  to  annul  marriage  contracted  in  good  faith  and  to 

have  children  declared  legitimate 715 

757.  Petition  for  maintenance  of  child  after  divorce  .         .         .  716 

758.  Petition  to  set  aside  a  fraudulent  conveyance      .        .        .  717 

759.  Petition  for  alimony  without  divorce 919 

760.  Applications  for  alimony 719 

761.  Order  for  temporary  alimony 731 

763.    Decrees  of  absolute  divorce 733 

763.    Default  upon  constructive  service 734 

764    Decree  of  separation  or  limited  divorce        ....  735 

765.    Decree  of  nullity 735 

766..  Decree  for  permanent  alimony 726 

767.  Decree  awarding  alimony,  custody  of  children  and  use  of 

homestead 738 

768.  Decree  restraining  sale  of  property  and  restoring  the  wife's 

property  and  awarding  use  of  homestead         .         .         .  730 

EVIDENCE. 

774    In  general >        •  733 

775.  Default 733 

776.  Depositions .735 

777.  Proof  of  marriage 735 

778.  Husband  and  wife  as  witnesses 738 

779.  Necessity  of  corroborating  testimony  of  a  party        .        .  741 

780.  What  corroboration  is  sufficient 743 

781.  Confessions  and  admissions ,       -  744 

782.  Privileged  communications  between  husband  and  wife    .  747 
788.    Privileged  communications  to  physicians  and  attorneys   .  749 

784    Testimony  of  children  of  the  parties 750 

785.    Relatives  and  servants  as  witnesses 750 

TRIAL  AND  APPEAL. 

800.  The  trial  —  Open  court 753 

801.  Trial  by  jury  and  verdict 753 

803.    The  right  to  open  and  close 754 

803.    When  the  divorce  suit  follows  the  code  procedure    .        .  754 

804    Change  of  venue 756 

805.    The  right  to  dismiss 756 


vm 


TABLE  OF  CONTENTS VOLUME  II. 


Sec.  Page. 

806.  Reference 758 

807.  Costs  .         .        .         : 760 

808.  New  trials .         .  763 

809.  Appeal 763 

PROCESS  AND  CONSTRUCTIVE  SERVICE. 

815.  Process  or  summons 771 

816.  Waiver  of  process 773 

817.  Constructive  service 773 

818.  Defective  service,  when  void 775 

819.  The  affidavit  of  non-residence 777 

830.  Sheriff's  diligence  before  publication 779 

831.  The  notice 780 

833.  Mailing  copy  of  summons  and  petition  to  defendant   .         .  781 
838.  Proof  of  publication 783 

834.  Personal  service  out  of  the  state 783 

835.  Decree  based  on  constructive  service,  how  vacated     .         .  786 

TEMPORARY  ALIMONY. 


850. 

In  general  .  . 

, 

.         , 

.      788 

851. 

The  power  to  grant  temporary  alimony 

.      789 

853. 

Annulment  of  marriage        ...... 

.      790 

853. 

Evidence  on  application  for  alimony  —  Proof  of  marriage 

.      793 

854. 

Same  —  Probable  cause  for  divorce  dr  a  valid  defense 

.      798 

855. 

Same  —  Poverty  of  the  vrif  e 

.      803 

856. 

Same  —  The  husband's  income 

.      806 

856a 

Defenses  to  application 

.      807 

857. 

Same  —  Misconduct  of  the  wife     ..... 

.      808 

858. 

Same  —  Offer  to  support  wife 

.      809 

859. 

Amount  of  temporary  alimony 

809 

860. 

When  temporary  alimony  commences  and  terminates 

815 

861. 

How  the  order  is  enforced 

817 

863. 

Appeal 

818 

863. 

Temporary  alimony  on  appeal 

SUIT  MONEY  AND  ATTORNEY'S  FEES. 

830 

875. 

In  general 

833 

876. 

Action  at  law  for  attorney's  fees 

835 

877. 

How  obtained  after  dismissal 

830 

878. 

Number  of  counsel 

833 

879. 

Amount  of  attorney's  fees    . 

833 

880. 

The  order  for  attorney's  fees 

835 

881. 

Contingent  fee 

836 

883. 

Attorney's  lien 

. 

836 

TABLE    OF   CONTENTS VOLUME    IL 


IX 


PERMANENT  ALIMONY. 


Sea 

900.  In  general 

901.  Permanent  alimony  of  the  common  law 
903.  Permanent  alimony  on  decree  of  separation 
903.  Distinction  between  common-law  and  statutory  alimony 
904  Liability  of  wife  to  pay  the  husband  alimony 

905.  When  alimony  is  refused 
9056t.  Annulment  of  marriage 

906.  Alimony  where  a  divorce_is  denied 

907.  When  a  guilty  wife  may  receive  alimony^ 

908.  The  amount  of  the  permanent  allowance 

909.  Compensation  for  the  wife's  property  rights 

910.  Compensation  for  injuries    . 

911.  Compensation  for  loss'of  support 
913.  The  husband's  income  and  property 

913.  The  wife's  income  and  property  . 

914.  The  support  of  the  children 

915.  Agreements  relating  to  alimony  . 

916.  Other  circumstances  which  determine  the  amount 
017.  Allowance  where  the  husband  has  no  property   . 
918.  Pleading  and  practice 


Page. 

838 
840 
843 
844 
847 
848 
849 
850 
851 
854 
858 
860 
863 
863 
864 
865 
865 
866 
868 
869 


THE  DECREE  FOR  ALIMONY. 

930.  In  general 873 

931.  Whether  in  gross  or  in  instalments 873 

933.    When  the  permanent  allowance  terminates         .         .         .  877 
983.    Whether  marriage  of  the  divorced  wife  terminates  her  ali- 
mony        ..........  883 

933a.  Revision  of  decree  for  alimony 884 

934    When  permanent  alimony  will  be  revised    ....  888 

935.  Alimony  where  there  is  no  personal  service          .         .         .  890 

936.  Alimony  after  divorce 891 

937.  When  alimony  is  exempt 898 

938.  The  wife  as  a  creditor  of  the  husband 900 

939.  Attachment  for  contempt 909 

940.  Writ  ne  exeat  regno 908 

941.  Other  means  of  enforcing  payment 910 

943.    Suit  on  foreign  decree  for  alimony 913 

943.    Suit  on  decree  for  alimony  rendered  in  another  state  .        .  913 


DIVISION  AND  RESTORATION  OF  PROPERTY. 


960.  In  general 

961.  Whether  the  property  allotted  is  alimony 
963.    Division  of  property  by  divesting  title 


916 
918 
919 


X  TABLE  OF  CONTENTS VOLUME  H. 

Sec. 

963.  Division  of  property  by  other  means    .         .        .         • 

964.  Enforcing  agreement  to  convey  title    .         .         .         . 

965.  How  the  property  is  divided 

966.  Practice  in  the  division  of  property 

CUSTODY  AND  SUPPORT  OF  CHILDREN. 


975.  In  general 

976.  The  relative  claims  of  the  parents 

977.  Custody  during  suit  for  divorce    . 

978.  Access  to  children 

979.  Custody  where  a  divorce  is  denied 

980.  Eifect  of  order  of  custody  rendered  in  another  state 

981.  Support  of  children  after  divorce 

983.  Support  where  decree  is  silent  as  to  custody 

983.  Support  where  custody  awarded  to  wife 

984  The  order  for  custody  and  support 

985.  When  modified 


Page. 
933 
937 
937 
933 


934 
936 
940 
942 
943 
944 
946 
949 
950 
953 
954 


ALIMONY  WITHOUT  DIVORCE. 

1000.  In  general 958 

1001.  The  question  as  affected  by  statute 965 

1003.  When  maintenance  is  granted 968 

1003.  The  procedure 971 

DECREES  OF  DIVORCE. 

1030.  In  general 975 

1031.  Decree  TOSJ 976 

1033.  Divorce  from  bed  and  board 977 

1033.  Decree  of  nullity .983 

1034  Divorce  from  the  bonds  of  matrimony  —  In  general    .         .  984 

1035.  After  divorce  tenants  by  the  entirety  become  tenants  in 

common 985 

1036.  Dower 987 

1037.  Mairiage  settlements  and  articles  of  separation  .        .        ,  993 

1028.  The  wife's  interest  in  the  policy  of  insurance       .        .        .  993 

1029.  Name  of  wife  after  .divorce 994 

1030.  Curtesy  and  husband's  interest  in  the  wife's  property  after 

divorce 995 

1031.  Homestead 997 

1033.  Federal  homestead 1003 

1033.  Effect  of  decree  obtained  in  another  state  on  constructive 

service 1003 


TABLE   OF  CONTENTS  —  VOLUME   H.  XI 

ggjj^                    ANNULLING  DECREE  FOR  FRAUD.  p 

1050.  In  general 1007 

1051.  False  or  insufficient  evidence 1009 

1053.  Fraud  in  concealing  proceedings  and  preventing  defense   .  1011 

1053.  Whether  decree  vacated'  after  one  party  has  married  .        .  1013 

1054.  The  death  of  one  of  the  divorced  parties  is  not  a  bar  .        .1015 

1055.  When  parties  are  bound  by  a  decree  obtained  by  collusion  .  1015 

1056.  Delay  and  estoppel 1018 

1057.  Procedure  in  vacating  decree  obtained  by  fraud  .        .        .  1021 

DIVORCE  STATUTES. 

Causes  fob  Divorce 1025 

Domicile  of  Parties 1053 

England,  Statutes  Relating  to  Divobce  in    .       .     '  .      ,.  1064 

Statutes  Relating  to  Constructive  Service  ....  1069 

California  Code 1077 

North  Dakota 1087 


THE  LAW  OF  DIYORCE. 


ANNULMENT  OF  MARRIAGE. 


§  565.  In  generaL 

566.  Divorce  and  annuliuent  dis- 

tinguished. 

567.  Void  and  voidable. 


§  568.  Void  marriages. 

569.  Voidable  marriages. 

570.  Defenses  to  nullity  suit 

571.  Practice  and  procedure. 


§  666.  In  general. —  It  is  the  purpose  of  this  chapter  to 
oonsider  in.  a  general  way  the  nature  and  incidents  of  pro- 
ceedings to  annul  void  and  voidable  marriages.  Not  all  the 
questions  relating  to  the  proof  and  validity  of  marriage 
need  be  included  ia  this  subject.  The  purpose  is  to  state 
the  grounds  for  the  annulment  of  marriage  and  the  effect 
of  the  nullity  decree.  The  grounds  for  which  a  marriage 
was  annulled  by  the  ecclesiastical  courts  were  precontract, 
consanguinity,  affinity  and  impotence,  and  these  are  called 
canonical  disabilities  and  rendered  the  marriage  voidable. 
These  courts  also,  in  common  with  the  common-law  courts, 
declared  marriages  void  on  account  of  prior  marriage,  want 
of  age,  mental  incapacity,  and  want  of  solemnization.  As 
the  church  held  marriage  to  be  indissoluble  and  refused  ab- 
solute divorce  for  misconduct  after  marriage,  many  doubt- 
ful interpretations  were  resorted  to  by  the  ecclesiastical 
courts  to  declare  a  marriage  void.  If  a  party  agreed  to 
marry  one  person  and  during  the  existence  of  this  agree- 
ment married  another,  the  marriage  was  declared  void  on 
account  of  precontract,  and  the  court  would  compel  the 
execution  of  the  prior  agreement.  The  degrees  of  consan- 
guinity and  affinity  were  greatly  extended  until  a  marriage 

was  voidable  on  accoimt  of  relationship  of  the  seventh  de- 
84 


530  AJOTULMENT    OF   MAEEIAGE.  [§  566, 

gree  of  the  canonical  reckoning,  or  the  fourteenth  degree  of 
the  civil  law.  Sexual  intercourse  or  fornication  was  held  to 
create  the  same  affinity  as  a  valid  marriage,  and  thus  the 
validity  of  marriage  was  brought  into  such  great  uncertainty 
that  the  law  was  changed  by  legislation.'  Precontract  is 
not  therefore  one  of  the  common-law  grounds  for  annul- 
ment of  marriage,  and  the  extreme  degrees  of  consanguinity 
and  affinity  were  changed  by  statute  before  we  derived  our 
unwritten  law  from  England. 

Both  tiie  law  and  equity  courts  had  jurisdiction  at  common 
law  to  declare  a  marriage  void,  but  a  direct  proceeding  for  this. 
purpose  was  brought  in  the  ecclesiastical  courts  only.  The 
jurisdiction  to  annul  a  marriage  is  generally  conferred  by 
statute  upon  certain  courts,  and  in  the  absence  of  such  stat- 
utes only  courts  of  equity  will  have  jurisdiction  to  annul  a 
marriage  in  a  direct  proceeding,  and  this  jurisdiction  must  be 
under  some  head  of  equity,  as  the  power  to  annul  contracts 
for  fraud.^  This  question  will  be  noticed  under  the  various 
subjects  relating  to  grounds  for  annulment  of  marriage.' 

Where  marriage  is  void  by  operation  of  common  law  or 
statute  either  party  is  entitled  to  a  decree  of  annulment.  It 
would  seem  that  the  incapable  party  would  be  estopped  from 
setting  up  his  own  incapacity.  But  estoppel  does  not  apply 
to  such  cases,  as  it  cannot  add  validity  to  that  which  is  void. 
The  incapable  party  may  therefore  be  entitled  to  relief.^ 

§  566.  IMvorce  and  annulment  distinguished.— ! The 
term  dmorce,  in  its  accurate  sense,  denotes  a  dissolution  or 
suspension  by  law  of  the  marital  relation.    As  a  legal  term, 

iFor  statement  of  the  various  *See  Amory  v.  Amory^  6   Eok 

acts  see  Wing  v.  Taylor,  3  Swab.  &  (N.  Y.)  514;  Bobbins  u  Potter,  98 

T.  S78.  Mass.  532. 

2  Teft  V.  Teft,  35  Ind.  44    See  ju-  For  parties  to  nullity  proceed- 

risdiction  of  federal  courts  to  annul  ings,  see  §  760. 

a  written  contract  of  marriage  on  For  effect  of  decree  of  nullity,  see 

account  of  fraud.    Sharon  v.  Hill,  §  1023. 

20  Fed.  3;  Sharon  v.  Terry,  36  Fed.  Effect  of  void  marriage  at  com- 

337.  mon  law,  see  §  590. 

'  Jurisdiction  to  annul  for  fraud.  Whether  divorce  or  annulment 

§  601.    For  impotency,  §  675,  for  impotence,  see  §§  704,  705. 


§  566.]  AMfULMENT    OF   MAEEIAGB.  531 

and  unaided  by  context,  it  means  a  dissolution  of  the  bonds 
of  matrimony.!  |When  a  marriage  is  dissolved  the  action  of 
the  court  proceeds  upon  proof  that  a  valid  marriage  existed 
and  created  rights  and  liabilities.  !  The  decree  of  divorce 
usually  proceeds  to  make  a  final  adjustment  of  these  liabili- 
ties. ]The  decree  of  annulment  declares  in  effect  that  no 
valid  marriage  ever  existed,  and  restores  the  parties  to  their 
former  positionjand  relieves  them  from  civil  and  criminal 
liability.  The  decree  of  divorce  operates  from  the  time  it  is 
rendered,  but  the  nullity  decree  relates  back  to  the  time  the 
void  marriage  was  entered  into. 

This  distinction,  though  easily  comprehended,  does  not 
appear  in  the  early  books  and  reports.  Blackstone,  in  re- 
ferring to  the  two  kinds  of  divorce,  says  that  the  "  total 
divorce,  a  vinculo  matritnonii,  must  be  for  some  of  the 
canonical  causes  of  impediment  before  mentioned,  and  these, 
existing  before  the  marriage,  as  is  always  the  case  in  con- 
sanguinity ;  not  supervenient  or  arising  afterwards,  as  may 
be  the  case  in  affinity  or  corporeal  imbecility.  iFor  in  cases 
of  total  divorce,  the  marriage  is  declared  null,  as  having 
been  absolutely  unlawful  ab  initio."  The  same  failure  to 
distinguish  the  terms  divorce  and  annulment  may  be  noticed 
in  our  statutes^which  provide  that  marriages  may  be  dis- 
solved for  certain  causes,  among  which  are  "any  causes 
rendering  the  marriage  originally  void  ^  or  voidable ; " ' 
pregnancy  of  the  wife,  unknown  to  the  husband  at  the  time 
of  marriage ;  *  impotence  or  physical  incapacity  at  the  time 
of  marriage ;  where  either  party  has  a  former  husband  or 
wife  living ;  where  the  marriage  was  procured  by  fraud  or 
duress ;  ^yhere  marriage  was  solemnized  while  either  party 
was  under  the  age  of  consent ; '  or  when  the  parties  to  the 
marriage  were  related  within  the  prohibited  degrees.    These 

1  Miller  v.  Miller,  33  Cal.  355.    '         souri,  North  Carolina,  Tennessee, 

2  "Washington.  Virginia,  West  Virginia,  Wyom- 
=  Rhode  Island  ing. 

<  Alabama,  Georgia,  Iowa,  Kan-       ^  Delaware, 
sas,   Kentucky,    Mississippi,    Mis- 


632  ANNULMENT    OF   MARKIAGE.  [§  567. 

grounds  are  clearly  those  of  annulment  and  not  divorce.  To 
give  these  statutes  a  literal  interpretation  would  lead  to 
absurd  consequences  not  intended  by  the  various  legislatures. 
It  is  held  that  these  statutes,  when  interpreted  with  refer- 
ence to  the  common  law  and  our  entire  system  of  jurispru- 
dence, require  a  decree  of  nullity,  and  not  a  decree  granting 
a  dissolution  of  marriage.'  Wher^  the  distinction  appears 
in  a  statute  which  provides  for  both  divorce  and  annulment, 
and  permits  the  court  to  grant  alimony  upon  decreeing  "  the 
dissolution  of  a  marriage,  and  also  upon  decreeing  a  divorce, 
whether  from  the  bonds  of  matrimony  or  from  bed  and 
board,"  the  term  "  dissolution  "  refers  to  divorce  and  not  an- 
nulment.^ 

§  567.  Toid  and  voidable. —  The  terms  voict  and  voiddbU 
are  ambiguous,  and  without  the  aid  of  other  terms  cannot 
be  used  with  accuracy,  because  there  are  shades  of  meaning 
for  which  we  have  no  word  and  resort  must  be  had  to  other 
terms.  It  will  be  of  some  assistance  to  say  how  these  terms 
are  used  with  reference  to  marriage.  A  marriage  is  said  to 
be  v6id  when  it  cannot  be  ratified  or  afiirmed  by  the  parties, 
and  voidable  when  it  is  not  absolutely  invalid,  but  may  be 
rendered  valid  by  conduct  aflBrming  it,  or  if  not  affirmed  it 
may  be  declared  void.  The  term  void  is  applied  where  some 
act  is  in  violation  of  law,  and  no  person  is  bound  by  it,  and 
any  person  may  plead  and  prove  its  invalidity.  But  where 
an  act  has  some  force,  but  is  capable  of  being  affirmed  or 
disaffirmed  by  an  interested  party,  it  is  said  to  be  voidable. 
The  decree  may  declare  a  marriage  void  which  before  it  was 
rendered  was  voidable.    After  such  decree  the  marriage  is 

lit  is  held  that  a  statute  per-  distinct  and  positive  legislation, 

mitting  a  divorce,  "where  either  Smith  v.  Smith,  5  O.  St.  33.    To 

of  the  parties  had  a  former  hus-  render  a  divorce    for  this  cause 

band  or  wife  living  at  the  time  of  would  in  effect  render  the  second 

solemnizing  the  second  marriage,"  marriage  voidable,  since  it  would 

does  not  render  the  second  mar-  exist  until  one  party  chose  to  ap- 

riage  voidable,  because  it  was  ab-  ply  for  divorce, 

solutelyvoid,  and  could  not  be  con-  ^gtewart  v.  Vandervort,  34  W. 

sidered  voidable  in  the  absence  of  Va.  534>  13  S.  B.  736. 


§  568.]  AUNULMIST    OF   JIAIiEIAGE.  533 

not,  in  some  respects  and  legal  consequences,  as  a  marriage 
■which  was  absolutely  void  before  decree.  There  is  no  term 
in  common  use  which  distinguishes  between  the  void  mar- 
riage and  the  marriage  declared  void. 

§  568.  Void  marriages.  —  A  marriage  is  void  when  it  has 
no  legal  effect,  confers  no  marital  or  property  rights,  im- 
poses no  duties  or  liabilities,  and  is  incapable  of  subsequent 
ratification.  Marriages  are  void  when  declared  so  by  stat- 
ute, and  when  there  is  a  valid  prior  marriage  undissolved. 
The  invalidity  of  such  marriage  may  be  shown  in  any  pro- 
ceeding, direct  or  collateral,  by  any  party  and  at  any  time.* 
This  rule  seems  to  be  so  stated  in  the  books,  but  there  is  one 
important  exception :  that  after  the  death  of  one  of  the  par- 
ties the  other  cannot  have  the  marriage  annulled.^  It  may 
be  questioned,  however,  in  a  collateral  proceeding,  after  the 
death  of  one  or  both  parties.'  As  the  void  marriage  created 
no  obligations  or  status,  the  capable  party  may  marry  again 
without  first  obtaining  a  decree  annulling  the  void  marriage.* 
But  a  decree  of  annulment  during  the  life-time  of  both  par- 
ties is  to  be  preferred,  because  a  fair  trial  may  be  had  while 
both  the  parties  and  their  witnesses  are  living,  and  a  decree 
of  a  court  of  competent  jurisdiction  will  prevent  subsequent 
litigation  in  other  jurisdictions.''    The  children  of  parties  to 

1 1  Bishop,  Mar.,  Sep.  &  Div.,  §  258,  -  Rawson  v.  Rawson  156  Mass.  578, 

eiting  Shelf,  Mar.  &  Div.  479;  Wil-  31 N.  E.  653;  Hinks v.  Harris,  4  Mod. 

son  V.   Brockley,   1    Phillim.   132;  183;  Heming  w  Price,  13  Mod.  432; 

Ferlat    v.    Gojon,    Hopkins,    478;  Brownsword  u  Edwards,  3  Ves.  Sr. 

Hantz  V.  Sealy,  6  Binn.  405;  Gath-  343. 

ings  w.  Williams,  5  Ire.  487;  Hem-  ^  inQmshill  v.  Murray,  1   Bland, 

ming  V.  Price,  13  Mod.  433;  Patter-  479;  Pingree  v.  Goodrich,  41  Vt.  47. 

son  V.  Gaines,  6  How.  (U.  S.)  550;  *  Gaines  v.  Relf,  12  How.  (IT.  S.) 

Fornshill  u  Murray,  1  Bland,  479;  473;  Patterson  v.  Gaines,  6  How. 

Mount  Holly  v.  Andover,  11  Vt.  (U.  S.)  550;  Williams  u  Williams,  6S 

326;  Rawdon  V.  Rawdon,   28  Ala.  Wis.  58;  Lincoln  u  Lincoln,  6  Rob. 

565;   Middleborough  v.  Rochester,  (N.  Y.)  635;  Martin  u  Martin,  23  Ala. 

13  Mass.  363;  Higgins  v.  Breen,  9  86. 

Mo.  493;  Smarts.  Whaley,  6  S.  &  'See  complications  arising  in  the 

M.  308.    This  rule  is  approved  in  Gaines  cases,    supra,  and  also  in 

Williams  v.  Williams,  63  Wis.  58.  the  Hill  v.  Sharon  cases,  cited  in 


534  ANNULMENT    OF   MAEKIAGE.  [§  509. 

a  void  marriage  are  illegitimate.^  Since  the  marriage  is 
void,  the  Avoman  did  not  become  a  wife,  and  is  not  entitled  to 
dower  or  the  rights  of  a  vvidow.^ 

The  rigor  of  the  common  law  has  been  modified  by  legis- 
lation in  most  of  the  states.  The  statutes  in  effect  provide 
that  if  the  void  marriage  was  contracted  in  good  faith,  and 
with  the  full  belief  that  the  former  husband  or  wife  was 
dead,  the  issue  of  the  second  marriage  shall  be  legitimate.' 
The  void  marriage  is  in  effect  only  voidable  under  statutes 
which  provide  that  a  void  marriage  shall  be  valid  until  its 
nullity  is  adjudged  by  a  court  of  cordpetent  jurisdiction.* 
The  interpretation  and  effect  of  these  statutes  will  be  con- 
sidered under  the  appropriate  subjects. 

§  569.  Toidable  marriages. —  A  marriage  is  voidable 
when  it  is  not  so  imperfect  or  contrary  to  law  that  the  im- 
perfection can  be  waived  and  the  marriage  become  legal  and 
valid  by  subsequent  affirmance  and  ratification.  A  voidable 
marriage  can  only  be  inquired  into  by  a  direct  proceeding 
between  the  parties  and  during  the  lives  of  both  of  them.' 
Until  it  is  set  aside  it  is  practically  valid  for  all  purposes; 
but  when  set  aside  the  decree  renders  it  void  from  the  be- 

3§Fed.  337.  See,  also,  Appelton  i;.  E.  106;  Glass  v.  Glass,  114  Mass. 
Warner,  51  Barb.  (N.  Y.)  270;  Teft  563.  See,  also,  similar  statutes  in 
«.  Teft,  35  Ind.  44.  The  right  of  Dyeri;.Brannock,66Mo.391;Lince- 
the  capable  party  to  marry  again  cum  v.  Lincecum,  3  Mo.  441 ;  Watts 
without  having  the  void  marriage  v.  Owens,  62  Wis.  512;  Harris  v. 
annulled  exists,  although  the  stat-  Harris,  85  Ky.  4.9,  2  S.  W.  549; 
ute  provides  how  such  marriage  Hiram  v.  Pierce,  45  Me.  367.  These 
may  be  annulled.  This  provision  statutes  being  remedial  may  be  ap- 
does  not  change  the  rule  nor  be-  plied  retrospectively.  Brower  v. 
etow  aiiy  validity  upon  the  void  Brower,  1  Abb.  Ap.  214;  Teter  v. 
marriage.  Drummond  v.  Irish,  53  Teter,  101  Ind.  129;  Stone  v.  Keel- 
la.  41.  ing,  3  Hen.  &  M.  228. 

1  Clayton  v.  Wardell,  4  Comst.  <  See  statute  in  Jackson  v.  Jack- 
230.  son,  94  Cal.  446;  Charles  v.  Charles, 

2  Smith  V.  Smith,  5  O.  St.  32;  41  Minn.  201,  42  N.  W.  935;  Nesbit 
Higgins  V.  Breen,  9  Mo.  493;  Smart  v.  Nesbit,  3  Dem.  (N.  Y.)  329;  Wyles 
V.  Whaley,  6  Sm.  &  M.  808;  Rand-  v.  Gibbs,  1  Redf.  382. 

lett  V.  Rice,  141  Mass.  385.  6  Stuckey  v.  Mather,  24  Hun,  461. 

3  Gall  V.  Gall,  114  N.  Y.  109,  21  N. 


§  570.]  ANNULMENT    OF   MAEKIAGE.  ^35 

ginning.  Marriages  are  voidable  wMcli  are  obtained  witli 
imperfect  consent,  as  where  there  is  fraud,  error  or  duress, 
or  the  party  is  incapable  of  giving  consent  from  want  of  age, 
or  mental  incapacity,  or  where  one  of  the  parties  was  im- 
potent before  marriage.  At  the  common  law  the  canonical 
disabilities,  consanguinity,  affinity  and  impotence,  rendered 
the  marriage  voidable  and  not  void.  This  is,  however,  modi- 
fied by  statutes  declaring  certain  marriages  void  for  consan- 
guinity and  affinity.  Yoidable  marriages  are,  of  course, 
good  for  every  purpose  until  avoided ;  the  children  are  legit- 
imate ; '  the  survivor  is  entitled  to  the  rights  of  a  husband 
or  wife,^  and  the  wife  is  entitled  to  dower.'  During  the 
existence  of  the  voidable  marriage  neither  party  can  marry 
again.* 

§  570.  Defenses  to  nullity  snlt. —  It  is  clear  that  some 
of  the  defenses  which  may  be  made  to  a  suit  for  divorce 
have  no  application  to  nullity  proceedings.  Where  a  mar- 
riage is  absolutely  void  by  statute,  or  on  account  of  a  prior 
marriage  undissolved,  no  defense  will  prevent  a  decree  of 
nullity  unless  it  be  estoppel  or  unreasonable  delay.  The 
doctrines  of  connivance,  collusion,  condonation  and  recrim- 
ination are  based  upon  violations  of  marital  duties,  and  can 
have  no  application  where  the  marriage  relation  does  not 
exist.  The  void  marriage  imposed  no  duties  and  created  no 
obligations  except  such  as  arise  between  strangers.  A  wife 
may  have  her  marriage  annulled  on  account  of  the  impotence 
of  the  husband  though  she  had  committed  adultery.*  If  the 
marriage  is  void  the  defense  of  recrimination  is  wholly  im- 
material.' The  doctrine  of  condonation  has  no  application ; 
but  where  the  marriage  is  voidable,  relief  may  be  refused 
where  cohabitation  commenced  or  continued  under  circum- 

1  Bury's  Case,  5  Co.  98.  §  603;  Duress,  §  633;  Want  of  age, 

ZEUiot  V.  Gurr,  2  Phillim.  16.  §  723;  Insanity,  §  670. 

3 1  Black.  Com.  434.  ^M.  v.  D.,  10  P.  D.  75, 175;  A.  B. 

estate  V.  Cone,  86  Wis.  498,  57  N.  v.  C.  B.,  11  Scotch  Sess.  Cas.  (4th 

W.  50.    See  contra,  In  re  Eichoff,  Ser.)  1060;  C.  B.  v.  A.  B.,  12  Scotch 

101  CaL   600.     For  affirmance    of  Sess.  Cas.  (4th  Ser.)  36. 

voidable    marriages,   see     Fraud,  *  See  §  435. 


536  ANNULMENT   OF   MAEEIAGE.  [§5Y1. 

stances  from  which,  ratification  may  be  inferred.  The  gen- 
eral doctrine  of  delay  applies  to  proceedings  to  annul  a 
marriage  for  impotence,  though  it  seems  that  insincerity  is 
not  a  defense.'  Impotence  or  physical  incapacity  cannot  be 
condoned,  but  the  circumstances  may  show  an  unreasonable 
delay.^ 

§571.  Practice  and  procedure. —  The  suit  to  annul  a 
marriage  is  similar  to  the  suit  for  divorce  and  requires  no 
separate  treatment,  as  distinctions  have  been  noted  in  the 
general  treatment  of  various  subjects.  The  statutes  have 
generally  conferred  jurisdiction  upon  the  courts  to  annul 
marriages  in  certain  cases,  and  authorized  the  same  plead- 
ings as  in  the  divorce  suit,  The  domicile  of  the  parties  must 
be  adequate  for  the  suit  for  divorce.  The  wife  is  entitled 
to  temporary  alimony  in  any  proceeding  in  which  a  de  facto 
marriage  is  alleged  to  be  void.'  The  wife  is  not  entitled  to 
permanent  alimony  but  to  a  restoration  of  property,  or  a 
gross  sum  in  lieu  of  her  property  rights  and  her  contribu-^ 
tions  to  the  common  fund.* 

1 M.  V.  D.,  10  P.  D.  75.  *  Allowance    in    restitution    of 

3  See  §  454,  What  offenses  may  property,  §§  960-966;  Recovery  of 

be  condoned.    Also,  Ryder  v.  Ryder  services,  rents  and  profits,  etc.,  on 

(Vt.),  38  A.  1039.  decree  of  nulUty,  §  lOSa 
'§853. 


PRIOR  MARRIAGE  UNDISSOLVED. 


575.  In  general. 

576.  General   doctrine    of    this 

chapter. 

577.  When  prior  marriage  is  un- 

dissolved the  second  mar- 
riage is  void. 

578.  When  second  marriage  is 

voidable  under  statutes. 

579.  Void  although  divorce  sub- 

sequently obtained. 

580.  Presumptions  in  favor  of 

marriage. 

581.  Knowledge  that  disability 

has  been  removed. 
583.    Marriage  before  decree  nisi 

is  made  absolute. 
583a.  Marriage  during  time  for 

appeal. 


:  583.    Marriage  after  a  decree  a 
mensa. 
584    Belief  that  prior  marriage 
was  dissolved  by  death. 

585.  Belief  that  prior  marriage 

was  dissolved  by  divorce. 

586.  Marriage  after  void  decree 

of  divorce. 

587.  Decree  obtained  by  fraud. 

588.  Eemarriage  of  guilty  party. 

589.  Bigamy  as  a  cause  for  di- 

vorce. 

590.  Effect  of  void  marriage  at 

the  common  law. 

591.  Void  marriages  under  the 

civil  law. 


§  575.  In  general. —  At  common  law  marriage  is  a  union, 
of  the  two  sexes  for  life  to  the  exclusion  of  aU  others.  A 
person  could  not  be  a  party  to  two  valid  co-existing  mar- 
riages. While  a  lapse  of  time  will  raise  a  presumption  of 
the  death  of  the  absent  party,  so  long  as  both  parties  are 
living  no  length  of  separation  can  dissolve  the  union.  The 
party  who  violated  his  marital  obligations  by  entering  into 
a  void  second  marriage  was  guilty  of  the  canonical  offense 
of  bigamy.  Later,  in  the  time  of  James  I,  the  offense  was 
made  a  felony,  but  the  statute  exempted  from  punishment 
for  bigamy  all  persons  who  remarried  during  the  life-time 
of  the  former  spouse,  after  a  decree  of  divorce,  a  sentence  of 
nulUty,  or  disaffirmance  on  reaching  the  age  of  consent,  or 
where  one  party  married  after  the  other  had  remained  away 


538  PEIOE   MAEEIAGE   UNDISSOLVED.  [§  5Y6. 

for  the  period  of  seven  years  without  being  heard  from.i 
Bigamy  is  punishable  in  nearly  all  the  states  by  similar  stat- 
utes containing  similar  exceptions.  The  common  law  was 
very  harsh  in  dealing  with  innocent  parties  who  had  entered 
into  void  marriages  believing  that  the  prior  marriage  was 
■dissolved.  When  the  second  marriage  was  annulled  the  in- 
nocent party  was  deprived  of  all  property  rights  and  the 
issue  of  the  second  marriage  became  illegitimate.  The  first 
marriage  was  regarded  as  of  divine  origin,  and  continued  no 
matter  how  long  the  parties  were  separated.  And  if  one  of 
the  parties  to  the  first  marriage  had  died  in  the  meantime, 
the  survivor  could  return  and  claim  the  rights  of  a  surviving 
husband  or  wife.  No  estoppel,  no' laches,  and  no  neglect  of 
m.arital  duties,  however  flagrant,  could  bar  the  right  of  the 
delinquent  party  to  assert  his  or  her  rights.  Much  of  this 
injustice  is  now  prevented  by  declaring  legitimate  the  ohil- 
ilren  of  void  marriages;  and  in  some  states  the  prior  un- 
dissolved marriage  is  held  in  abeyance  until  the  second 
marriage  is  declared  void  in  a  proceeding  to  test  its  y,alidity. 
It  is  an  absolute  necessity,  for  the  protection  of  the  public 
as  well  as  the  innocent  parties,  that  second  marriages^  con- 
tracted under  a  mistake  of  law  or  of  fact,  should  be  left  un- 
disturbed after  a  reasonable  lapse  of  time,  especially  where 
the  parties  to  the  second  marriage  have  acted  in  good  faith. 
Otherwise  the  second  marriage  is  never  secure,  but  is  always 
open  to  attack  whenever  the  other  party  is  prompted  by 
greed  or  enmity  to  assert  his  rights.^ 

§576.  General  doctrine  of  this  chapter. —  A  marriage 
exists  until  it  is  dissolved  by  divorce  or  the  death  of  one  of 
the  parties.  During  the  existence  of  the  first  marriage 
neither  of  the  parties  can  enter  into  a  valid  second  marriage. 
If  a  party  to  a  valid  subsisting  marriage  enters  into  another 
marriage  the  second  marriage  is  absolutely  void  and  has  no 
legal  effect  whatever.    It  is  not  merely  voidable,  but  is  an  ab- 

iStat.    1    Jac.    1,    ch.    11,    1604;    lowed  in  an  action  to  annul  a  mar- 
Queen  V.  Luniley,  L.  R.  1  C.  C.  196.    riage  for  this  cause.    §  852. 
-  Temporary  alimony  may  be  al- 


§  577.]  PEIOE  MAEKIAGE   TTADISSOLTED.  539 

solute  nullity,  incapable  of  ratification.^  A  party  to  a  valid 
and  subsisting  marriage  is  absolutely  incapable  at  common 
law  of  effecting  a  valid  marriage  with  a  third  person,  and 
a  second  marriage,  while  the  first  marriage  subsists,  is  a 
nullity,  void  db  initio?  Such  is  the  general  doctrine  Avhere 
there  is  a  prior  marriage  undissolved.  It  will  be  necessary 
to  examine  the  various  applications  of  this  doctrine  and  its 
collateral  results. 

§  577.  When  prior  marriage  is  undissolved  the  second 
marriage  is  void. —  When  a  valid  prior  marriage  is  shown 
to  have  been  in  full  force  at  the  time  the  second  marriage 
was  entered  into,  this  is  sufficient  proof  that  the  second 
marriage  is  void.^  It  was  once  contended  that  such  second 
marriage  is  voidable.*  It  was  urged  that  a  prior  undissolved 
marriage  did'  not  render  the  second  marriage  ipso  facto 
void,  but  voidable  only ;  furnishing  ground  for  a  dissolution 
of  the  marriage,  but  not  per  se  annulling  it.  But  it  was 
held  that  a  valid  prior  marriage,  when  established,  rendered 
void  the  second  one.  "  A  man  having  a  wife  in  full  life  is 
utterly  powerless  to  make  a  valid  contract  of  marriage,  and 
his  attempt  to  do  so  is  entirely  nugatory." '  By  the  general 
concurrence  of  the  authorities,  the  second  marriage  is  not 
voidable,  but  absolutely  void,  without  a  decree  declaring  it 

1  Williamson  v.  Parisien,  1  Johns.  ^  Lady  Madison's  Case,  1  Hale,  P. 
Ch.  389;  MUes  v.  Chilton,  1  Eob.  Ec.  C.  693;  Wightman  v.  Wightman,  4 
'684;  Bird  v.  Bird,  1  Lee,  621  ;■  Searle  Johns.  Ch.  343:  Hemming  v.  Price, 
V.  Price,  3  Hag.  Con.  187;  Young  12  Mod.  482;  Eex  v.  P^nson,  5  Car. 
V.  Nay  lor,  1  Hill,  Eq.  383;  Smith  v.  &  P.  412;  Regina  v.  Brown,  1  Car. 
Smith,  1  Tex.  621;  Cartwright  v.  &K.  144;  Riddleson  v.  Wogan,  Cro. 
McGowan,  121  IlL  388;  Kenley  v.  Eliz.  858;  Smart  v.  Whaley,  6 
Kenley,  2  Yeates,  207;  Heffner  v.  Smedes  &M.  308;  Martin's  Heirs  u 
Heffner,  23  Pa.  104;  Teft  v.  Teft,  35  Martin,  22  Ala.  86;  Rawdon  v.  Eaw- 
Ind.  44;  Donnelly  v.  Donnelly's  don,  28  Ala.  565;  Gathings  v.  Will- 
Heirs,  8  B.  Mon.  113;  Spicer  v.  iams,  5  Ired.  Law,  487;  In  re 
■Spicer,  16  Abb.  Pr.  (N.  S.)  112;  S.  v.  Shaak's  Estate,  4  Brewster,  305; 
Cfoodrich,  14.  W.  Va.  834;  Lindsay  Patterson  v.  Gaines,  6  How.  550; 
■V.  Lindsay,  42  N.  J.  Eq.  150;  Glass  Drummond  v.  Irish,  52  la.  41. 
V.  Glass,  114  Mass.  563;  Smith  v.  '  See.  .sitpj-a,  §  576. 
-Smith,  5  O.  St.  32:  Armory  v.  Ar-  <  Heffner  v.  Heffner,  23  Pa.  104. 
mory,  6  Rob.  (N.  Y.)  514.             '  » Id. 


540  PKIOE  MAKEIAGE    UNDISSOLVED.  [§  57S. 

SO.'  Therefore,  the  competent  party  to  the  second  marriage 
may  marry  again  without  first  obtaining  a  decree  annulling^ 
the  supposed  marriage.^ 

§  578.  When  a  second  marriage  is  voidable  under  stat- 
utes.—  By  statute  in  some  states  the  void  second  marriage- 
is  valid  until  annulled  by  decree.  Such  statutes  produce 
the  anomalous  result  of  two  legal  marriages  of  one  person 
existing  at  the  same  time.  In  one  case  the  first  wife  de- 
serted the  husband,  settled  in  California  and  married  there. 
The  husband  married  again  and  died.  In  a  settlement 
of  his  estate  it  was  held  the  second  wife  was  entitled  to- 
dower,  as  her  marriage  was  valid  until  annulled  by  a  court 
of  competent  jurisdiction,  and  is  to  be  deemed  valid  until 
such  decree  is  entered.'  Under  such  statute  the  validity  of 
the  marriage  cannot  be  tried  in  any  collateral  proceeding, 
but  only  in  a  direct  proceeding  to  annul  the  marriage.  A 
similar  provision  of  the  ISTew  York  code  declares  that:  "If 
any  person  whose  husband  or  wife  shall  have  absented  him- 
self or  herself  for  the  space  of  five  successive  years,  without 
being  known  to  such  person'  to  be  living  during  that  time,, 
shall  marry  during  the  life-time  of  such  absent  husband  or 
wife,  the  marriage  shall  be  void  only  from  the  time  that  its- 
nuUity  shall  be  pronounced  by  a  court  of  competent  author- 
ity." The  interpretation  placed  upon  this  statute  is  that 
the  first  marriage  is  suspended  or  placed  in  abeyance,  and 
is  not  reinstated  upon  the  return  of  the  absentee ;  otherwise 
both  marriages  would  be  in  force  at  the  same  time,  and 
polygamy  would  be  sanctioned.  The  first  marriage  is  merely 
inchoate  and  without  any  effect  until  one  of  the  three  par- 
ties obtains  a  decree  pronouncing  the  second  marriage  void.^ 
For  purposes  of  succession  and  administration  the  second 

1  Strode  v.  Strode,  3  Bush,  237;  173;  Reeves  v.  Reeves,  54  111.  333? 

Teft  V.  Teft,  35  Ind.  .44;   Peet  v.  Williams  v.  WilUams,  63  Wis.  58? 

Peet,  53  Mich.  464,  and  authorities  Dare  v.  Dare  (N.  J.  Eq.),  27  A.  654. 

cited  in  this  chapter.  s  Charles  v.  Charles,  41  Minn.  201^ 

^  Patterson  v.  Gaines,  6  How.  550;  42  N.  W.  935. 

Gaines  v.  Relf,  12  How.  (U.  S.)  472-  *  Gall  v.  Gall,  114  N.  Y.  109;  Grif- 

593;  Queen  v.  Chad  wick,  11  Q.  B.  fin  v.  Banks,  34  How.  213. 


§  5Y9.]  PEIOK   MARRIAGE    UNDISSOLVKD;  541 

marriage  is  valid  until  its  invalidity  is  established.'  The 
statute  is  thus  construed  to  promote  the  best  interests  of 
the  state ;  and  the  marriage  may  be  held  void  if  the  moving 
party  has  not  acted  in  good  faith,  but  married  without  in- 
quiry in  regard  to  the  absentee,  or  without  an  honest  belief 
that  the  other  party  was  dead.'^  The  statute  proceeds  upon 
a  presumption  of  death,  and  a  party  is  not  protected  in  mar- 
rying without  due  inquiry  for  the  absentee.^ 

The  provision  of  the  California  code  is  similar  to  that  of 
New  York.  It  provides  that :  (1)  "  A  subsequent  marriage 
contracted  by  any  person  during  the  life  of  a  former  hus- 
band or  wife  of  such  person,  with  any  person  other  than 
such  former  husband  or  wife,  is  illegal  and  void  from  the 
beginning;  (2)  unless  such  former  husband  or  wife  was  ab- 
sent, and  not  known  to  such  person  to  be  living,  for  the 
space  of  five  successive  years  immediately  preceding  such 
subsequent  marriage,  or  was  generally  reputed  and  was  be- 
lieved by  such  person  to  be  dead  at  the  time  such  subse- 
quent, marriage  was  contracted;  in  either  of  which  cases 
the  subsequent  marriage  is  valid  until  its  nullity  is  adjudged 
by  a  competent  tribunal."  It  is  held  that  the  second  mar- 
riage is  not  void,  but  voidable,  if  the  husband  had  written 
several  letters  to  the  absent  wife  and  to  his  friends,  making 
inquiries  about  her,  and  he  was  informed  and  believed  that 
she  was  dead.* 

■  §  579.  Void  although  divorce  subsequently  obtained.— 
A  decree  of  divorce  does  not  relate  back  to  any  particular 
time,  but  becomes  operative  only  when  rendered.'*  If  for 
some  reason  the  decree  is  not  operative,  although  the  couri 
had  in  fact  made  some  minutes  directing  a  decree,  the  mar- 
riage is  void  and  does  not  become  valid  by  a  subsequent  de- 

1  White    V.  Lowe,   1   Redf.   376;  McCartee  v.  Camel,  1  Barb.  Ch.  455, 

Spicer  v.  Spicer,  16  Abb.  Pr.  (N.  S.)  464. 

113;  Wyles  v.  Gibbs,  1  Redf.  383.  a  Valleau  v.  Valleau,  6  Paige,  207, 

^  Id. ;  Jones  v.  Zoller,  32  Hun,  380;  *  Jackson  v.  Jackson,  94  Cal.  446. 

Cropsey  v.  McKinney,  30  Barb.  47;  *  Alt  v.  Banholzer,  39  Minn.  511. 


5J:2  PEIOE   MAEKIAGE    UNDISSOLVED.  [§  580.. 

cree.^  A  marriage  where  the  decree  of  divorce  was  entered 
two  hours  after  the  marriage  ceremony  was  performed  was, 
however,  held  valid.'^  Generally  the  party  who  enters  into- 
a  subsequent-  marriage,  knowing  that  the  other  spouse  is 
living  and  undivorced,  is  unable  to  procure  a  dissolution 
of  the  first  marriage  on  account  of  the  adultery  committed  in 
the  meretricious  marriage.'  If  he-  desires  to  maintain  the 
second  marriage  he  must  wait  until  his  real  wife  by  the  first 
marriage  obtains  a  divorce  from  him  and  then  have  a  new- 
ceremony  performed  with  his  second  wife.  The  mere  fact 
that,  after  the  void  second  marriage  is  entered  into,  the  first 
marriage  is  dissolved  will  not  render  the  second  marriage 
valid.* 

§  580.  Presumptions  in  favor  of  marriage. —  While  the 
parties  to  the  void  second  marriage  are  liviiig  together  their 
relation  is  meretricious  and  illicit,  and  the  question  arises,. 
Can  this  marriage  become  valid  by  cohabitation  after  the 
first  marriage  is  dissolved  by  divorce  or  by  the  death  of  the 
other  party  ?  It  is  clear  that  as  the  second  marriage  is  void 
it  cannot  be  ratified.'  But  if  the  parties  discover  that  the 
first  marriage  was  dissolved  and  continue  to,  cohabit  as  hus- 
band and  wife  for  years,  the  presumption  would  arise  that 
ar  valid  marriage  took  place  after  the  first  marriage  was  dis-' 
solved.  This  presumption  is  very  strong  where  the  parties 
entered  into  the  marriage  in  good  faith,  believing  Ihat  the 

1 S.  V.  Eaton,  85  Wis.  587, 55  N.  W.  s  See  "Whippen  v.  "Whippen,  147 

8910;  In  re  Cook's  Estate,  83  Cal.  Mass.  294. 

415,33  P.   393;  Teter  v.  Tatar,  88  -tin  re    McLaughlins,  4  Wash. 

Ind.  494.                                     ,  570,  30  P.  651;  Harris  v.  Harris,  85 

2Merriam  v.  Wolcott,  61  How.  Ky.   49,  3  S.  W.  549;  Williams  v. 

Pr.  377, 393.    In  this  case  the  par-  Williams,    63  Wis.    58;    Teter    v. 

ties  acted  in  good  faith  believing  Teter,  88  Ind.  494  and  101  Ind.  139; 

that  a  divorce  had  been  granted.  Hunt's  Appeal,  86  Pa.  394. 

The  law  would  presume  the  de-  5  Tyler  on  Infancy  &  Gov.  833; 

cree  to  date  from  the  opening  of  "  Holabird  v.  Atlanta,  etc.  Ins.  Co., 

court  on  that  day,  and  would  dis-  13  Am.  L.  Reg.  566;  Thompson  v. 

regard  fractipns  of  a  day,  except  Thompson,  114  Mass.  566. 
in    cases   of  necessity    to    guard 
against  injustice. 


§  580.]  PEIOE   MAUEIAGE    UNDISSOLVED.  643 

first  marriage  was  dissolved,  and  after  discovering  the  mis- 
take continued  to  cohabit  as  husband  and  wife,  acknowledg- 
ing their  child  as  legitimate,  and  by  every  act  and  declaration 
showing  their  belief  that  they  were  legally  married  after 
the  first  marriage  was  dissolved.  To  overcome  this  pre- 
sumption of  a  valid  marriage  after  the  first  is  dissolved,  it 
would  be  necessary  to  prove  a  negative, —  to  prove  that  at 
no  time  after  the  dissolution  of  the  first  marriage  had  the 
parties  entered  into  a  valid  marriage.  This  would  be  most 
difficult  to  prove,  especially  where  a  common-law  marriage 
is  held  sufficient.  But  this  difficulty  of  proof  is  not  unusual 
in  such  cases,  since  it  is  the  rule  that  all  presurrvptions  shall 
ie  made  in  favor  of  marriage  where  matrimony  was  the  dt'- 
sire  of  the  parties.  In  conformity  with  all  the  presumptions 
in  favor  of  marriage,  the  true  doctrine  is  believed  to  be  that 
a  valid  marriage  will  be  presumed  if  the  parties  continue  ta 
cohabit  as  husband  and  wife  after  the  disability  is  removed. 
Where  a  common-law  marriage  is  valid,  a  marriage  will  be 
presumed  if  the  parties  to  the  void  marriage  live  together, 
as  husband  and  wife,  but  a  short  time  after  death  or  divorce 
has  dissolved  the  first  marriage,  and  it  will  be  necessary  for 
the  impeaching  party  to  show  that  the  parties,  after  re- 
moval of  the  disability,  had  no  desire  to  continue  the  mar- 
ital relation  and  did  not  subsequently  agree  to  be  married.'' 
Under  such  circumstances  a  marriage  will  be  presumed,  al- 
though a  formal  mai*iage  is  required,  and  a  marriage  good 
at  common  law  is  not  sufficient.  The  presumption  exists 
whatever  the  form  of  marriage  required.     In  such  case  the 

iTeter   v.  Teter,   101    Ind.   129;  Atty.  Gen.,  1  Ap.  Cas.  686;  Harvey 

TeteruTeter,88IncL494;Boulden  v.  Carrol,  5  Tex.  Civ.  Ap.  324,33 

V,  Mclntire,  119  Ind.  574,  21  N.  E.  S.  W.  713;  Blanchard  v.  Lambert, 

445;  Cartwright  v.  McGown,   131  43  la.  328;  Harbeck  t;.  Harbeck,  103 

IlL  388;  Adams  v.  Adams,  57  Miss.  N.  Y.  714;  Campbell  v.  Campbell, 

267;    State    v.  Worthingham,   23  1    H.   L.   So.   182-215;    Lapsley  v. 

Minn.  528;  Schmisseur  v.  Beatrie,  Grierson,   1    H.   L.   Cas.   498;    De 

147  111.  210,  35  N.  E.  525;  Fenton  v.  Thoren  v.  Wall,  3  Scotch  Sess.  Cas. 

Reed,  4  Johnson,  52;  Rose  v.  Clark,  (4th  Ser.)  H.  L.  38. 
8  Paige,  Ch.  574;    De  Thoren  v. 


SM  PEIOE   MAKEIAGE   UNDISSOLVED.  [§  580. 

presumption  will  be  that  the  marriage  was  in  conformity  to 
the  law.  But  this  is  denied  in  some  of  the  states  where 
common-law  marriages  are  not  valid ;  the  presumption  being 
that  an  illicit  cohabitation  continued  unless  a  ceremony  was 
shown.i 

There  may  also  be  a  presumption  of  divorce  where  the 
parties,  or  one  of  them,  has,  after  a  separation,  married 
again.^  Where  the  validity  of  a  second  marriage  is  ques- 
tioned, and  the  impeaching  party  proves  a  prior  marriage, 
it  will  be  presumed  that  such  marriage  has  been  dissolved 
by  divorce  and  the  second  marriage  is  therefore  valid.'  The 
burden  of  proof  is  on  the  impeaching  party  to  show  that  the 
absent  spouse  was  living  when  the  second  marriage  was  en- 
tered into,  or  that  the  divorce  was  not  rendered  before  such 
second  marriage,  and  also  that  the  parties  did  not  marry 
after  removal  of  the  disability.*  This  presumption  of  divorce 
may  be  overcome  by  proof  that  no  divorce  could  be  obtained 
in  the  state  where  the  parties  resided,^  or  by  proof  that  no 
divorce  was  granted  in  the  county  whesre  both  parties  re- 

1  Harris  v.  Harris,  85  Ky.  49,  2  S.  pretended  marriage  of  complain- 
W.  549;  In  re  McLaughlin,  4  Wash,  ant  -with  the  defendant,  the  com- 
570,  SOP.  651;  Boulden  u  Molntire,  plainant  was  a  married  woman 
119  Ind.  574,  31  N.  E.  445;  Randlett  And  was  then  and  there  the  wife 

V.  Rice,  141  Mass.  385;  Spencer  v.  of ,  who  was  then  and 

Pollock,  83  Wis.  215.  there  alive."     The  only  evidence 

2  Blanchard  v.  Lambert,  43  la.  that  the  husband  was  alive  at  that 
228;  Ellis  v.  EUis,  58  la.  720;  Car-  time  was  the  testimony  of  the  wife 
roll  V.  Carroll,  20  Tex.  731.  that  six  years  before  her  second 

'Johnson  u  Johnson,  114  IlL  611;  marriage  she  heard  that  her  hus- 

Coal  Run  Co.  v.  Jones,  127  111.  374;  band   had   married  again.    Held, 

Com.  V.  Belgard,  5  Gray,  95.  Where  that  the  dissolution  of  the  first 

the  records  had  been  destroyed  by  marriage    by   death    or    divorce 

fire  and  the  parties, married  others,  would  be  presumed  under  the  cir- 

it  will  be  presumed  that  a  valid  di-  cumstances.    Johnson  v.  Johnson, 

vorce  was  granted,  and  the  decree  114  111.  611. 

was  entered  of  record.    In  re  Ed-  *  Boulden  v.  Molntire,  119  Ind. 

wards,  58  la.  431.    In  an  action  for  574,  21  N.  E.  445. 

divorce  the  husband  alleged  as  a  '  McCarty  v.  McCarty,  2  Strob.  6, 

defense  " that  at  the  time  of  the  47  Am,  D.  585, 


§  581.J  PEIOK   MARRIAGE    UNDISSOLVED.  5i5 

sided,^  or  by  the  admission  of  the  sarvivor  that  neither 
party  obtained  a  divorce  or  believed  that  a  divorce  had 
been  obtained.^ 
§  581.  Knowledge  that  disability  has  been  removed. — 

If  the  parties  knowingly  enter  into  an  illicit  cohabitation 
and  continue  it  without  knowledge  that  the  disability  has 
been  removed,  it  is  clear  that  there  is  no  presumption  of 
marriage  after  the  parties  become  competent.  Or  if  the 
parties  suppose  the  marriage  is  valid  and  continue  what  they 
believe  to  be  a  lawful  union,  and  are  never  aware  that  their 
marriage  is  void,  it  is  folly  to  presume  a  new  niarriage. 
Their  condition  is  most  unfortunate.  To  treat  their  mar- 
riage as  void,  to  deprive  them  of  the  right  of  dower  or  cur- 
tesy, and  to  declare  innocent  children  to  be  bastards,  is  cer- 
tainly demanding  a  great  and  useless  sacrifice  to  modern 
idolatry  of  the  marriage  relation.  But  their  pitiable  condi- 
tion is  the  result  of  legal  doctrines  so  firmly  established  that 
the  only  means  of  escape  is  by  some  statutory  enactment 
incorporating  into  our  law  the  rule  of  the  civil  law  that  a 
putative  marriage  is  converted  into  a  real  one  by  the  re- 
moval of  the  disability  by  death  or  divorce. 

If  one  of  the  parties  is  ignorant  of  any  impediment  to  the 
marriage  and  dies  believing  the  marriage  is  legal,  no  sub- 
sequent marriage  could  be  presumed,  because  the  parties  are 
acting  under  a  belief  that  their  marriage  was  valid,  and  all 
their  conduct  would  be  interpreted  with  reference  to  the 
second  marriage.'  This  is  well  illustrated  by  an  Illinois 
case  where  a  man,  whose  wife  was  living,  married  another 
woman  during  the  existence  of  the  first  marriage.  Three 
years  afterward,  without  his  knowledge,  the  first  wife  ob- 
tained a  divorce,  but  it  does  not  appear  that  the  second  wife 
had  any  knowledge  of  this  proceeding.  The  parties  to  the 
second  marriage  during  their  life-time  treated  their  marriage 
as  valid  and  evidently  believed  it  to  be  so.    Four  children 

1  Barnes  v.  Barnes  (la.),  57  N.  W.       SRandlett  v.  Eice,  141  Mass.  385. 
«51. 

2EUisttEllis,  58Ia.  730, 
35 


546  PEIOE   MAEEIAGE    UNDISSOLVED.  [§  582", 

were  born  to  them  and  were  recognized  as  legitimate.  After 
the  death  of  both  parties  the  validity  of  the  marriage  was 
questioned  in  an  action  for  the  partition  of  the  husband's 
lands,  brought  by  his  brothers  and  sisters  against  the  heirs, 
of  a  child  of  the  second  marriage.  On  these  facts  the'  ques- 
tion arose  whether  a  new  marriage  would  be  presumed  from' 
long  cohabitation  and  repute.  Speaking  of  the  wife,  who 
was  ignorant  of  a  prior  marriage,  it  was  said :  "  She  was  de- 
ceived and  imposed  upon  by  Lewis,  in  his  falsely  assuming 
to  have  capacity  to  marry  her,  and  in  concealing  the  fact  of 
his  prior  marriage  to  a  then  living  and  undivorced  wife, 
Not  knowing  of  the  former  marriage  she  could  have  had  no- 
reason  for  desiring  a  second  marriage.  If  she  regarded  her- 
self as  the  lawful  wife  of  Lewis,  it  would  be  a  violent  pre- 
sumption to  hold  that  she  had  assented  to  a  second  informal 
marriage."  ^  As  every  reasonable  and  fair  presumption  will 
be  indulged  in  to  uphold  a  marriage  and  establish  the  legiti- 
macy of  children,  it  will  be  presumed  that  the  wife  had 
knowledge  of  the  divorce,  and  that,  aftet  such  fact  was 
known,  the  parties  consented  to  marry  each  other  and  thus 
formed  a  common-law  marriage.  In  the  last  cases  cited  the 
presumption  is  rebutted  by  satisfactory  evidence.^ 

§  583.  Marriage  before  decree  nisi  is  made  absolute. — 
Although  a  decree  nisi  has  been  entered,  the  marriage  exists 
until  such  decree  is  made  absolute.  A  second  martiage  dur- 
ing the  existence  of  the  decree  nisi,  and  before  it  is  made 
absolute,  is  void.'  ■  If  a  party  marries  again,  supposing  he 
was  at  liberty  to  do  so  under  such  decreCj  he  has  made  a 
mistake  of  law  and  not  of  fact,  and  the  court  wiU  refuse  to 

iCartwright    v.  McGowan,    131  Cook  u.  Cook,  144  Mass.  163, 10  N.  B. 

111.  388.    Followed  by  Voorhees  v.  749;  Googins  v.  Googins,  153  Mass. 

Voorhees,  46  N.  J.  Eq.  411.  533,  35  N.  E.  833;  Graves  v.  Graves, 

2  But  see  cases  cited  in  §  580,  108  Mass.  314;  Edgerly  «.  Edgerly, 

holding  that  the  party  impeaching  113  Mass.  53;   Sparhawk  v.  Spar- 

the  marriage  must  negative  the  hawk,   114   Mass.   355:   Warter  v. 

presumption  of  a  valid  marriage  Warter,  15  P.  D.  153;  Wickham  v~ 

after  removal  of  the  disability.  Wickham,  6  P.  D.  11, 

!<  Moors  V.  Moors,  131  Mass.  333; 


§  5S2a.]  PBIOE   MAEEIAGE   UNDISSOLVED.  547 

make  the  decree  absolute.^  But  if  he  waits  the  time  required 
by  law,  believing  and  havidg  reason  to  believe  that  he  has 
obtained  a  decree  absolute,  and,  being  guilty  of  no  negli- 
gence, marries  again  and  cohabits  with  the  person  he  mar- 
ries, he  is  not  prevented  from  having  the  decree  made  abso- 
lute.^ The  marriage  under  the  decree  nisi  being  void  a  new 
ceremony  would  be  necessary,  iinless  the  decree  absolute 
dated  from  the  entry  of  decree  nisi.' 

§  582a.  Marriage  (luring  time  for  appeal. —  It  is  pro- 
vided in  many  states  that  the  divorced  parties  may  not  marry 
until  after  the  expiration  of  the  time  for  appeal,  or  until  six 
months  after  the  decree  of  divorce  is  entered.  If  such  pro- 
vision is  penal,  a  marriage  within  the  prohibited  time  will 
be  valid,  but  the  parties  will  be  subject  to  a  prosecution  for 
the  offense.  Such  marriage  will,  not  be  void  unless  the  stat- 
ute expressly  declares  it  to  be  so.*  If  it  is  penal  it  has  no 
extraterritorial  effect,  and  the  parties  may  avoid  the  statute 
by  a  marriage  in  another  state.  It  is  held  in  England  that, 
such  statute  makes  the  decree  inoperative  unto,  the  six 
months  have  expired,  and  that  the  decree  is  in  effect  a  decree 
nisi,  and  a  marriage  within  the  prohibited  time  is  void. 
Accordingly,  it  is  held  that  a  marriage  in  England  is  void 
if  at  the  time  the  decree  in  India  had  not  become  operative.* 
The  statutes  of  our  states  are  similar  in  form  and  effect 
to  statutes  prohibiting  the  remarriage  of  the  guilty  party, 
and  win  receive  the  same  construction.^ 

1  Moots  V.  Moors,  131  Mass.  332.        or  claim  of  either  party  shall  have 

2  Pratt  V.  Pratt,  157  Mass.  403,  33  the  effect  to  terminate  such  mar- 
N.  E.  747.  riage  as  to  both  parties,  except 

'Prole  V.  Soady,  3  Ch.  Ap.  330;  that  neither  party  shall  be  capable 

Norman  v.  Villars,  3  Ex.  Div.  359;  of  contracting   marriage  with  a 

Noble  V.  Noble,  1  P.  D.  691;  "Wales  third  person;  and  if  he  or  she  does 

V.  Wales,  119  Mass.  89.  so  contract,  shall  be  liable  there- 

*  See  §  588.  for  as  if  such  decree  had  not  been 

'  Warter  v.  Warter,  15  P.  D.  153.  given,  until  the  stiit  has  been  heard 

*See  §  588  on  this  point.  and  determined  on  appeal;  and  if 

The    code    of  Oregon   provides  no  appeal  be  taken,  the  expiration 

that  "a  decree  declaring  a  mar-  of  the  period  allowed  by  this  code 

riage  void  or  dissolved  at  the  suit  to  take  such  appeal."    The  wife,  a 


648 


PEIOE   MARRIAGE   UNDISSOLVED. 


[§  583. 


§  583.  Marriage  after  a  decree  a  mensa. —  A  decree 
a  mensa  does  not  destroy  the  marriage  relation  or  dissolve 
it,  but  merely  suspends  some  of  the  marital  obligations.^  A 
second  marriage  after  such  a  decree  is  clearly  void.^  "When 
the  second  marriage  is  discovered  to  be  void  for  this  reason, 
either  party  to  such  marriage  can  have  it  annulled.  But  if 
the  parties  desire  to  have  their  illicit  relation  converted  to 
the  states  of  a  valid  marriage,  they  must  have  the  first  mar- 
riage dissolved  and  have  a  new  ceremony  performed  after 


resident  of  Oregon, 'married  in  that 
state  before  the  decree  became 
operative  under  this  statute.  In  a 
suit  for  alimony  against  her  second 
husband,  it  was  held  that  such 
marriage  was  void,  although  the 
statute  did  not  declare  it  to  be  so. 
Wilhite  V.  Wilhite,  41  Kan.  154 

The  code  of  Washington  declares 
that  "  neither  party  shall  be  capa- 
ble of  contracting  marriage  with 
a  third  person  until  the  period  in 
which  an  appeal  may  be  taken 
under  the  provisions  of  the  civil 
practice  act  has  expired;  and,  in 
case  an  appeal  is  taken,  then 
neither  party  shall  intermarry 
with  a  third  person  until  the  cause 
has  been  fully  determined."  The 
plaintiff  obtained  a  divorce  and 
married  in  Washington  within  six 
months.  The  parties  cohabited  as 
husband  and  wife  until  the  death 
of  one  of  the  husbands.  No  appeal 
was  taken,  and  no  marriage  was 
solemnized  after  the  time  for  ap- 
peal had  expired.  On  a  petition  of 
the  first  wife  for  letters  of  admin- 
istration, the  second  marriage  was 
held  void  under  the  statute  cited. 
In  re  Smith's  Estate,  4  Wash.  702, 
30  P.  1059. 

A  marriage    to   the   defendant 


within  four  months  after  the  ren- 
dition of  a  decree  is  void,  where 
the  statute  declares  that  a  decree 
of  divorce  "  shall  not  operate  so  as 
to  release  the  offending  party,  who 
shall,  nevertheless,  remain  subject 
to  the  pains  and  penalties  which 
the  law  prescribes  against  a  mar- 
riage whilst  a  former  husband  or 
vrife  is  living."  Cox  v.  Combs,  8 
B.  Mon.  231. 

Marriage  after  ex  parte  di- 
vorce.—  In  Comstock  v.  Adams,  23 
Kan.  513,  the  parties  were  mariaed 
six  days  after  a  decree  of  divorce 
was  obtained  on  service  by  publi- 
cation. The  parties  to  the  divorce 
suit  entered  into  a  contract,  in 
which  the  defendant  agreed,  in  con- 
sideration of  a  certain  sum,  to  take 
no  steps  or  proceedings,  or  to  in- 
stitute any  proceedings  to  inval- 
idate, set  aside  or  annul  the  divorce 
granted.  On  a  failure  to  pay  the 
consideration,  the  defendant  had 
the  decree  vacated.  After  the 
death  of  the  husband,  the  first 
wife  brought  an  action  to  set  aside 
his  will,  and  it  was  held  that  the 
second  marriage  was  void. 

1  Barker  v.  Barker,  2  Pin.  297. 

2  Young  V.  JSTaylor,  1  Hill,  Eq.  (S. 
C.)  383;  Carmena  v.  Blaney,  16  La. 


§§  584,  585.]         PEIOE   MAEEIAGE   UNDISSOLVED.  549 

the  divorce  is  obtained.  The  divorce  cannot  be  obtained  by 
the  incapable  party,  for  by  entering  into  a  void  marriage 
he  or  she  has  committed  adultery,  unless  such  marriage  was 
entered  into  by  mistake  of  fact.  This  adultery  can  be  set 
up  as  recrimination  and  defeat  the  suit  for  divorce  unless 
the  recrimination  is  only  a  bar  at  discretion  of  the  court. 
In  such  case  the  court  will  not  refuse  a  divorce  where  the 
adultery  of  the  plaintiff  in  entering  the  void  marriage  is 
only  technical  and  was  committed  under  a  mistake  of  law  or 
iact.  The  party  to  the  first  marriage  who  has  not  entered 
into  a  void  marriage  may  obtain  a  divorce  on  account  of 
adultery  or  bigamy. 

§  584.  Belief  that  prior  marriage  was  dissolved  by 
death. —  Since  a  marriage  exists  until  dissolved  by  death  or 
divorce,  it  continues  as  long  as  the  absentee  lives,  no  matter 
how  long  he  may  remain  away.  A  second  marriage  is  there- 
fore absolutely  void,  and  cannot  be  aifirmed  if  the  absentee 
is  still  living.'  The  belief  of  both  parties,  or  of  one  of  them, 
that  the  prior  marriage  was  dissolved  by  the  death  of  the 
absentee,  or  because  he  has  been  absent  for  more  than  seven 
years,  may  be  a  defense  in  a  criminal  proceeding  for  bigamy, 
but  does  not  render  the  second  marriage  valid.*  But  in 
many  of  the  states  the  statutes  provide  that  the  issue  of  the 
second  marriage  shall  be  legitimate  if  the  second  marriage 
was  contracted  in  good  faith  and  with  the  full  belief  of  the 
parties  that  the  former  husband  or  wife  was  dead.' 

§585.  Belief  that  prior  marriage  was  dissolved  hy  di- 
vorce.—  The  belief  that  a  prior  marriage  was  dissolved  by 
divorce  may  be  a  mistake  of  fact  or  of  law  according  to  the 

An.  245;  Thompson  v.  Thompson,  *Paini  v.  Pain,  37  Mo.  Ap.  110; 

10  Philadelphia,  131.  Thomas  v.  Thomas,  124  Pa.  646,  17 

3  James  v.  James,  5    Blackford  A.  182;  Glass  v.  Glass,  114  Mass. 

(Ind.),   141;    Kenley  v.  Kenley,  2  563;  Valleau  v.  Valleau,  6  Paige, 

Yeates  (Pa.),  207;  Martin  v.  Martin,  207;  Oram  v.  Oram,  3  Eedf.  300. 

22  Ala.  86;  Zule  v.  Zule,  1  N.  J.  Eq.  5 Gall  v.  Gall,  114  N.  Y.  109,  21 

96;  Williamsons.  Parisian,!  Johns.  N.  E.  106;  Glass  w  Glass,  114  Mass. 

Ch.  888;  Glass  v.  Glass,  114  Mass.  563. 
563. 


550  PEIOK   MAEEIAGE   UNDISSOLVED.  [§  586. 

circumstances.  If  it  is  a  mistake  as  to  the  effect  of  a  decree 
nisi  or  a  mensa  it  is  clearly  a  mistake  of  law.^  Eut  if  the 
mistake  is  in  regard  to  the  entry  or  existence  of  a  decree  -it 
is  a  mistake  of  fact.^  The  belief  that  one  of  the  parties  is 
divorced  may  be  a  material  fact  vs^here  the  statute  provides 
that  children  of  parties  married  in  good  faith  shall  be  legiti- 
•  mate.'  But  otherwise  such  behef  is  immaterial,  as  such  mar- 
riage, like  the  marriage  under  the  belief  that  a  former  hus- 
band and  wife  is  dead,  noticed  in  the  previous  section,  is 
void  and  not  voidable.*  Such  a  marriage  is  void  although 
the  statute  declare  the  children  legitimate  "when  either 
party  to  a  marriage,  void  because  a  former  marriage  exists 
undissolved,  shall  have  contracted  such  void  marriage  in 
the  reasonable  belief  that  such  disability  did  not  exist." 
Such  provision  relates  to  the  legitimacy  of  the  children  and 
not  to  the  validity  of  the  marriage.'  "Where  the  second 
marriage  has  been  contracted  under  such  belief,  the  marriage 
is  void,  and  a  decree  annulling  the  marriage  is  not  necessary, 
and  the  competent  party  may  enter  into  a  valid  marriage 
without  such  decree.^  But  the  wisest  course  is  to  have  such 
marriage  annulled  during  the  lifetime  of  the  parties.'' 

§  586.  Marriage  after  void  decree  of  divorce. —  Accord- 
ing to  familiar  principles  of  law,  a  judgment  or  decree  of  a 
court  without  jurisdiction  is  a  mere  nullity.  A  decree  of 
divorce,  void  for  want  of  jurisdiction,  is  without  any  legal 
effect  and  does  not  dissolve  the  marriage.  A  decree  is  void 
for  want  of  jurisdiction  if  the  plaintiff  did  not  have  a  lona 
fide  domicile  within  the  state.*    The  invalidity  of  such  de- 

1  Moors  V.  Moors,  131  Mass.  233^        5  Teter  v.  Teter,  88  Ind.  494 
White    V.  WMte,   105  Mass.    335;        6  Reeves  v.  Reeves,  54  111.   333; 
Glass,  V.  Glass,  114  Mass.  563.  Martin  v.  Martin,  33  Ala.  86 ;  Gaines 

2  Pratt  V.  Pratt,  157  Mass.  503.  v.  Eelf ,  13  How.  (U.  S.)  473 ;  Williams 
8  See  §  584  v.  WiUiams,  68  Wis.  58;  Lincoln  v. 
4  Brown  v.  Brown,  143  TO..  409;    Lincoln,  6  Eob.  535.  - 

Gordon  v.  Gordon,  141  111.  160;  'Appleton  v.  Warner,  51  Barb. 
Cartwright  v.  McGowan,  131  IlL  (N.  Y.)  370;  Teft  v.  Teft,  35  Ind.  44 
388.  8  Ditcher   v.  Dutcher,   39    Wis. 


§  586.] 


FEIOE   MAEEIAGE   UNDISSOLVED. 


551 


■cree  may  be  shown  in  a  proceeding  in  any  state  and  between 
any  parties  wherever  the  issue  may  arise.^  As,  where  the 
applicant  removed  from  his  own  state  to  Utah,  and .  pro- 
cured a  divorce  under  a  statute  authorizing  the  courts  of  the 
territory  to  take  jurisdiction  of  divorce  cases  "  where  the 
applicant  wished  to  become  a  resident."  Such  decrees  are 
uniformly  held  to  be  void  and  do  not  dissolve  the  marriage. 
Subsequent  marriages  are  void  and  bigamous.^  According 
to  the  peculiar  doctrine  of  jurisdiction  and  domicile  which 
prevails  in  New  York,  a  valid  divorce  may  be  obtained  by 
substituted  service  upon  a  non-resident  if  his  domicile  is  in 
fact  within  the  state.'  But  it  is  denied  that  the  marital  re- 
lation is  a  res  within  the  state  of  the  party  invoking  the 


651;  Jackson  v.  Jackson,  1  Johns. 
434;  Yates  v.  Yates,  2  Beasley, 
280;  House  v.  House,  35  Ga.  473; 
I^ith  u  Leith,  39  N.  H.  20;  Strait 
V.  Strait,  3  MacAr.  415;  Gregory 
V.  Gregory,  78  Me.  187;  Ditson 
V.  Ditson,  4  E.  I.  87;  Pawling  v. 
WiUson,  13  Johns.  193;  Barber  v. 
Eoot,  10  Mass.  260;  Nefle  v.  Beau- 
champ,  74  la.  93,  36  N.  W.  905 
Bradshaw  v.  Heath,  13  "Wend.  407 
Watkins  v.  Watkins,  135  Mass.  83 
Sewall  V.  SewaU,  123  Mass.  156 
Van  Fossen  v.  S.,37  O.  St.  317;  Get- 
tysu  Gettys,  3  Lea,  260;  Shannon 
V.  Shannon,  4  Allen,  134;  Shaw  v. 
Gould,  L.  E.  3  H.  L.  55;  Shaw  v. 
Atty.-Gen,,  2  P.  &  M.  156;  Kerr 
V.  Kerr,  41  N.  Y.  272;  White  v. 
White,  5  N.  H.  476;  Harrison  v. 
Harrison,  20  Ala.  629;  Hare  v.  Hare, 
10  Tex.  355;  Vischer  v.  Vischer,  12 
Barb.  640;  Coddington  v.  Coddiag- 
ton,  30  N.  J.  Eq.  263;  Weatherbee 
V.  Weatherbee,  20  Wis.  499. 

1  See  cases  in  last  note.  People 
V.  DaweU,  25  Mich.  247;  Smith 
V.  Smith,  13  Gray,  209;  Sew- 
aU V.  SewaU,  133  Mass.  156;  Hoff- 


man V.  Hoffman,  46  N.  Y.  30; 
Piatt's  Appeal,  80  Pa.  501;  Cava- 
naugh  V.  Smith,  84  Ind.  380; 
Doughty  V.  Doughty,  28  N.  J.  Eq. 
581;  Adams  v.  Adams,  154  Mass. 
390,  38  N.  E.  260;  Larimore  v. 
Kioyle,  43  Kan.  338,  23  P.  487;  St. 
Sure  V.  Lindsf  elt,  83  Wis.  346,  52 
N.  W.  308;  Smith  v.  Smith,  43  La. 
An.  1140,  10  So.  248;  Van  Orsdal 
V.  Van  Orsdal,  67  la.  35,  24  N.  W. 
579;  Eegina  v.  Wright,  1  P.  &  B. 
(New  Brunswick),  363 ;  Neff  v.  Beau- 
champ,  74  la.  93,  36  N.  W.  905; 
Gettys  V.  Gettys,  71  Tenn.  260; 
Mvmspn  v.  Munson,  14  N.  Y.  Supp. 
692;  Chaney  v,  Bryan,  83  Tenn.  589. 
But  see  Eeed  v.  Eeed,  53  Mich.  117; 
Waldo  V.  Waldo,  52  Mich.  94. 

^Litowich  V.  Litowich,  19  Kan. 
451,  27  Am.  E.  145;  Hood  v.  S.,  56 
Ind.  263;  S.  v.  Armington,  35  Minn. 
39;  Folger  v.  Columbia  Ins.  Co.,  99 
Mass.  367;  Smith  v.  Smith,  19  Neb. 
706,  28  N.  W.  296;  Cost  v.  Cost,  1 
Utah,  112;  S.  v.  Fleak,  54  la.  439; 
Davis  V.  Com.,  13  Bush,  318 ;  Hardy 
V.  Smith,  136  Mass.  328. 

3  Hunt  V.  Hunt,  72  N.  Y.  217. 


552  PEIOE   MAEEIAGE   UNDISSOLVED.  [§  586, 

jurisdiction  of  the  court  to  dissolve  it.  A  decree  of  divorce 
obtained  in  another  state  by  substituted  service,  although 
valid  in  all  other  states,  is  held  void  in  New  York  as  against 
a  citizen  of  that  state  who  was  not  personally  served  with 
summons  and  did  not  appear  in  the  proceedings.  The  status 
of  such  citizen  is  not  affected  by  the  decree,  he  or  she  re- 
maining a  married  person.^  Thus,,  where  the  wife  obtained 
a  decree  of  divorce  in  Ohio  against  her  husband,  who  was  a 
citizen  of  New  York,  it  was  held  that  such  decree  did  not 
affect  the  status  of  the  husband.  He  committed  bigamy  by 
entering  into  a  second  marriage.^  A  second  marriage  per- 
formed in  New  York,  after  such  decree  of  divorce,  is  void.* 
And,  since  the  validity  of  a  marriage  is  to  be  determined  by 
the  law  of  the  state  where  it  was  entered  into,  such  mar- 
riage is  void  everywhere.*  It  has  been  admitted,  however, 
that  a  decree  of  divorce  was  valid  where  the  parties  married 
and  resided  in  Ohio,  and  the  husband  obtained  a  divorce  on 
account  of  the  wife's  adultery  committed  in  that  state,  al- 
though the  wife  had,  after  their  separation,  removed  to  New 
York,  and  notice  was  served  by  publication.' 

A  marriage  of  one  of  the  parties  supposed  to  be  divorced 
by  a  decree  which  is  void  for  want  of  jurisdiction,  or  for 
fraud  ill  obtaining  or  proving  jurisdiction,  is  absolutely  void'. 
No  subsequent  conduct  of  the  parties  can  render  such  void 
decree  valid.    The  innocent  party,  who  had  no  notice  of  the 

lEigney  v.  Eigney,  137  N.  Y.408,  Supp.  191;  In  re  Hoiise  Estate,  14 

reversing  6  N.  Y.  Supp.  141;  Will-  N.  Y.  Supp.  275;  Scragg  v.  Scragg, 

lams  V.  Williams,  130  N.  Y.  193,  39  18  N.  Y.  Supp.  487.    See,  also.  Cook 

N.  E.  98;  People  v.  Baker,  76  N.  Y.  v.  Cook,  56  Wis.  195,  14  N.  W.  83; 

78;  O'Dea  v.  O'Dea,  101  N.  Y.  23,  4  Doughty  v.  Doughty,  28  N.  J.  Eq. 

N.  E.  110;  Jones  v.  Jones,  108  N.  Y.  581;  Flower  v.  Flower,  43  N.  J.  Eq. 

415,  15  N.  E.  707;  Cross  v.  Cross,  153,  7  A.  669;  Simonds  v.  Allen,  33; 

108  N.  Y.  638,  15  N.  E.  333;  De  Meli  ID.  Ap.  513. 

V.  De  Meli,  120  N.  Y.  485,  34  JST.  E.  2  People  v.  Baker,  76  N.  Y.  78. 

996;    Bundle  v.  Van  Inwegan,   9  '  O'Dea  v.  O'Dea,  101  N.  Y.  23. 

Civ.  Pro.  338;  Morrison,  In  re,  53  *  Simonds  v.  Allen,   33  III  Ap, 

Hun,   102;   Feyh  Estate,  5  N.  Y.  512. 

Supp.  90;  Burton  v.  Burton,  45  ^  Matter  of  Morrison,  52  Hun,  lOSU 
Hun,  68;  Davis  v.  Davis,  33  N.  Y. 


§  586;]  PBIOK   MAEEIAGE    UNDISSOLVED.  553' 

divorce  proceedings,  is  not  estopped  to  assert  its  in\-alidity 
because  she  has  herself  relied  upon  the  decree  and  married 
another.^  The  fact  that  a  mother  is  willing  to  have  the  child 
of  the  second  marriage  declared  a  bastard  in  order  to  recover 
dower,  while  extremely  reprehensible,  cannot  be  considered, 
as  in  any  way  rendering  the  void  decree  operative.  ISTor 
can  the  party  who  practiced  the  fraud  upon  the  court  by 
making  a  false  showing  of  jurisdiction  prevent  the  vacation 
of  the  decree  by  entering  into  a  second  marriage  before 
such  void  decree  is  vacated.^  The  doctrines  of  delay  and  es- 
toppel may  prevent  either  party  from  asserting  property 
rights  under  such  circumstances.'  A  void  decree  will  be  set 
aside  although  an  innocent  party  relied  upon  it  and  married 
one  of  the  divorced  parties  and  children  were  born  of  such 
marriage.*  "When  this  question  was  first  decided  it  was  ad- 
mitted that  "  it  may  seem  an  arbitrary  act  to  expunge  a. 
sentence  of  divorce  with  a  stroke  of  a  pen,  bastardize  after- 
begotten  children,  involve  an  innocent  third  person  in  legal 
guilt,  and  destroy  rights  acquired  in  reliance  on  a  judicial 
act  which  was  operative  at  the  time.  But  the  legitimate 
husband  has  also  his  rights ;  and,  if  any  one  must  suffer  from 
the  invalid  marriage,  it  is  he  who  procured  it."  ^  The  status 
of  the  second  wife  is  no  more  deplorable  than  that  of  any 
innocent  woman  who  marries  a  man  having  a  wife  living 

1  Rundle  v.  Van  Inwegan,  9  Civil  24  Neb.  551,  39  N.  W.  594;  Brotbei- 
Pro.  328.  ton    v.    Brotherton,    12    Neb.    72;. 

2  Brotherton    v.    Brotherton,   13  Wortman  v.  Wortman,  17  Ab.  Pr, 
Neb.  72.    See,  also,  §  1053.  (N.  Y.)  66;  Comstock  v.  Adams,  33^ 

3  See  Estoppel,  §  556.  Kan.  513;  Push  v.  Rush,  46  la.  648, 
<  Allen  V.  McClellan,  13  Pa.  St.    48  la.  701;  Lawrence  u  Lawrence, 

338   (1849);   Everett  u  Everett,  60  73  111.  557;  Stephens  u  Stephens,  63 

Wis.  300;  Edson  v.  Edson,  108  Mass.  Tex.  337;  Whitcomb  v.  Whitcorab, 

590;  Smith  v.  Smith,  20  Mo.  166;  46  la.  437;  Boyd's  Appeal,  38  Pa, 

Caswell  V.  Caswell,  120  111.  377,  11  341;  Crouch  v.  Crouch,  30  Wis.  667; 

N.  E.  343;  Scanlon  v.  Scanlon,  41  Weatherbee  u  Weatherbee,  30  Wis, 

IlL  Ap.  449;  Holmes  v.  Holmes,  63  499. 

Me.  430;  True  v.  True,  6  Minn.  315;  'Allen  v.  McClellan,  13  Pa.  St, 

Bomsta  v.  Johnson,  38  Minn.  230,  338. 
86  N.  W.  341 ;  Wisdom  v.  Wisdom, 


S54  PEIOE  MAEEIAGE   UNDISSOLVED.  [§  587. 

and  undivorced.  It  is  to  be  regretted  that  the  disgrace  and 
trouble  cannot  be  visited  upon  the  head  of  the  wrong-doer 
a,lone,  but  it  often  happens  innocent  parties  must  suffer  with 
the  guilty.  Considerations  of  public  policy  as  well  as  jus- 
tice demand  that  fraud  practiced  upon  a  court  shall  not  be 
successful.  It  is  of  the  highest  unportance  that  all  should 
landerstand  that  a  decree  obtained  by  fraud  will  be  set  aside 
when  the  facts  are  proven.  Were  it  otherwise,  a  reckless 
man,  by  imposing  upon  the  court,  might  relieve  himself  of 
supporting  his  wife,  cut  off  her  right  of  dower,  obtain  cus- 
tody of  the  children  and  "  stamp  her  name  with  unmerited 
disgrace,"  and  preclude  her  from  aU  relief  by  committing 
the  additional  wrong  of  marrying  another. 

§  587.  Decree  obtained  by  fraud. —  A  distinction  should 
be  made  between  a  decree  void  for  want  of  jurisdiction  and 
a  decree  obtained  by  false  evidence  as  to  the  cause  for  di- 
vorce. If  a  decree  of  divorce  is  void  for  want  of  jurisdiction, 
no  estoppel  or  long  acquiescence  will  prevent  ,a  party  from 
having  it  set  aside.  The  fact  that  the  moving  party  has  re- 
lied on  the  divorce  as  a  dissolution  of  the  marriage  and  has 
married  again  will  not  estop  her  from  showing  that  such 
decree  is  void  for  want  of  jurisdiction.^  A  fraudulent  show- 
ing of  jurisdiction  will  render  the  decree  absolutely  void, 
but  a  fraud  practiced  upon  the  court  in  giving  false  evidence, 
or  in  misleading  the  defep.dant  as  to  the  cause  for  divorce, 
or  suppressing  the  evidence,  or  procuring  a  decree  by  collu- 
sion, wiU  render  the  decree  voidable  only.  This  distinction 
is  carefully  noted  in  the  opinions.^  Thus,  where  the  court 
had  jurisdiction  of  the  parties,  and  the  fraud  was  practiced 
in  procuring  the  decree,  it  wiU  not  be  set  aside  if  the  mov- 
ing party  has  been  guilty  of  acquiescence  or  unreasonable 
delay  after  the  discovery  of  the  fraud.'    The  statute  of  lim- 

lEundle  v.  Van  Inwegan,  9  Civil  ^Sedlak  v.  Sedlak,  14  Or.  540, 13 

fro.  E.  338.    See,  also,  §  1053.  P.  453;  Nichpls  v.  Nichols,  35  N.  J. 

2  Everett  v.  Everett,  60  Wis.  300;  Eq.  60;  Richardson's  Ap.,  133  Pa. 

Edson  V.  Edson,108  Mass.  590;  Cas-  293, 19  A.  83;  Singer  v.  Singer,  41 

well  V.  Caswell,  130  III  377.  Barb.  139;  Miltmore  v.  Miltmore, 


§  588.]  PEIOE  MAEEIAGE   UNDISSOLVED.  555 

itations  is  applicable  to  such  cases,  but  does  not  begin  to  run 
until  the  discovery  of  the  fraud.^  Especially  is  this  true 
when  an  innocent  party  has  married  one  of  the  divorced 
parties  relying  upon  such  decree.^  Under  such  circumstances 
the  courts  may  rightly  refuse  to  disturb  the  rights  of  "inno- 
cent parties  by  declaring  the  marriage  void  and  thus  bas- 
tardizing innocent  children,  vrhere  the  motive  of  the  moving 
party  is  to  gratify  personal  feeling  and  recover  alimony.' 
Nor  should  the  divorce  be  set  aside  on  the  ground  of  public 
morals  if  the  moving  party  is  actuated  solely  by  mercenary 
motives.* 

§  588.  Remarriage  of  guilty  party. —  The  marriage  is 
completely  dissolved  by  a  decree  of  divorce,  and  all  the  ob- 
ligations created  by  that  relation  are  discharged,  and  the 
parties  stand  as  though  no  such  relation  had  existed.  The 
marriage  relation  is  as  completely  dissolved  by  divorce  as 
by  death.  Therefore  qn  the  entry  of  a  decree  of  divorce 
both  parties  are  entitled  to  marry  again,  unless  the  statutes 
expressly  prohibit  the  guilty  party  from  marrying  again.' 
The  JSTew  York  code '  provides  that  "  "Where  a  marriage  is 
dissolved,  as  prescribed  in  this  article,  the  plaintiff  may  marry 
again,  during  the  life-time  of  the  defendant ;  but  a  defend- 
ant, adjudged  to  be  guilty  of  adultery,  shall  not  marry 
again  until  the  death  of  the  plaintiff."  But  this  section  does 
not  prevent  the  remarriage  of  the  parties  to  the  action.'' 
If  the  guilty  party  marries  again  in  the  state  during  the 

40  Pa,  151;  Garner  u  Garner,  38  Larimore  v.  Knoyle,  43  Kan.  338, 

Ind.  139:  Stephens  v.  Stephens,  51  33  P.  487. 

Ind.  543;  Bourn  v.  Simpson,  9  B.  2  ginger  v.  Singer,  41  Barb.  139; 

Mon.  454;  Jordon  v.  Van  Epps,  58  Nichols  v.  Nichols,  35  N.  J.  Eq.  60; 

How.  Pr.  388;  Nicholson  v.  Nichol-  Earle  v.  Earle,  91  Ind.  37;  Yorston 

son,  113  Ind.  131, 15  N.  E.  333 ;  Brown  v.  Yorston,  33  N.  J.  Eq.  495. 

V.  Grove,  116  Ind.  84,  18  N.  E.  387;  'Id. 

Jones  V.  Jones,  78  Wis.  446,  47  N.  <  Hubbard  v.  Hubbard,  19  Colo. 

"W.  738;  Thompson  v.  Thompson,  13,  34  P.  170. 

91  Ala.  591;  Zoellner  v.  Zoellner,  6  Barber  u  Barber,  16  CaL  378. 

46  Mich.  511 ;  Danf orth  v.  Danforth,  6  §  1761. 

105  ILL  603.  ''  See  construction  of  this  section 

» Caswell  V.  Caswell,  130  IlL  377;  in  Peck  v.  Peck,  8  Abb.  N.  C.  400; 


556  PEIOE  MAEEIAGE   UNDISSOLVED.  [§  588. 

life  of  the  complainant  lie  is  guilty  of  bigamy.^  Generally 
the  remarriage  is  prohibited  within  a  specified  period ;  as,, 
five  years.2  In  some  states  until  the  further  order  of  the 
court.'  The  guilty  party  is,  by  some  statutes,  allowed  to 
remarry  upon  showing  good  behavior  and  obtaining  per- 
mission of  the  court.*  Such  permission  must  be  first  ob- 
tained or  the  second  marriage  will  be  void.^  It  is  held  that' 
these  statutes  are  not  void  as  being  in  restraint  of  marriage 
and  therefore  contrary  to  public  policy,^  and,  though  retro- 
spective, are  not  void  as  being  ex  post  facto  laws.' 

The  evident  intent  of  these  statutes  is  to  prevent  the 
guilty  party  from  entering  into  another  marriage.  He  hav- 
ing been  unfaithful  to  the  obligations  of  the  first  marriage,  it 
is  presumed  that  he  is  unfit  to  enter  into  a  second  marriage 
unless  he  reforms.  But  such  prohibition  is  in  fact  a  re- 
straint of  marriage.  It  leaves  at  large  a  person  who,  by 
false  representations,  may  induce  an  unsuspecting  woman 
to  enter  into  a  void  marriage ;  or  if  this  does  not  occur,  the 
unfortunate  defendant,  who  cannot  marry,  is  tempted  to 
continued  adulteries  without  incentive  to  reformation.  A 
prohibition  which  restrains  marriage,  encourages  adultery, 
leaves  the  party  in  a  position  to  contract  void  marriages, 
and  takes  away  a  natural  incentive  to  reformation,  should 
be  held  contrary  to  public  policy.  These  consideraticins  are 
sufficient  to  justify  the  repeal  of  such  statutes.*    The  prohi- 


Moore  v.  Moore,  8  Abb.  N.  C.  171 
Colvin  V.  Colvin,  3  Paige,  385 
Green's  Case,  8  Abb.   N.   C.   450 


Cox  u  Combs,  8  B.  Mon.  231 ;  Thomp- 
son V.  Thompson,  114  Mass.  566. 
sMusiok  V.  Musiok,  88  Va.  13, 13 


Peugnet  v.  Phelps,  48  Barb.   566.  S.  E.  303. 

It  is  held  that  a  marriage  with  the  <  Sparhawk    v.    Sparhawk,    114 

guilty  party  is  valid  where  both  Mass.  355;  Peckz;.  Peck,  8  Abb.  N.  C. 

parties  were  not  residents  of  the  400;  Morgan  v.  Morgan,  1  P.  &  M. 

state  of  New  York  at  the  time  the  644;  Cochrane's  Petition,  93  Mass. 

marriage  was  entered  into.     Sue-  276;  Childs'  Case,  109  Mass.  406. 

cession  of  Hernandez  (La.),  15  So.  'Thompson    v.    Thompson,    114 

461.  Mass.  566. 

1  P.  V.  Taber,  92  N.  Y.  146,  over-  «  Owen  v.  Braokett,  75  Tenn.  448. 
ruling  P.  V.  Hovey,  5  Barb.  117.  'Elliott  v.  Elliott,  38  Md.  357. 

2  Peck  V.  Peck,  8  Abb.  N.  C.  400;  ^  statutory  prohibition  of  reniar- 


§  588.] 


PEIOE  MAEEIAGE    UNDISSOLVED. 


557 


bition  applies  only  to  the  parties  who  have  been  found 
guilty  by  a  decree  rendered  in  the  state,  and  has  no  refer- 
ence to  a  decree  granted  in  another  state.^  The  authorities 
are  almost  uniform  that  such  statutes,  being  penal,  have  no 
extraterritorial  operation,  and  unless  there  is  an  express 
provision  making  a  marriage  entered  into  in  another  state 
void,  the  guilty  party  may  contract  a  valid  marriage  in  an- 
other state,  even  though  both  parties  are  residents  of  the 
state  where  the  decree  was  rendered,  and  went  out  of  the 
state  to  evade  its  laws.^ 


Tiage  has  been  repealed  in  Maine 
and  Massachusetts. 

1  PhiUips  V.  Madrid,  83  Me.  305,  23 
A.  314;  Bullock  v.  BuUock,  133 
Mass.  3. 

^Van  Voorhis  v.  Brintnall,  86 
N.  Y.  18,  overruling  Thorp  v. 
Thorp,  47  Sup.  Ct.  80,  and  Marshall 
V.  Marshall,  3  Hun,  288;  S.  C,  48 
Barb.  57.  See  other  authorities  in 
this  state.  Thorp  v.  Thorp,  90  N.  Y. 
605;  Miller  v.  MiUer,  91  N.  Y.  331; 
Moore  v.  Hegeman,  93  N.  Y.  531. 
See,  also,  Ponsford  v.  Johnson,  3 
Blatchford,  51. 

See,  also,  FuUer  v.  Fuller,  40  Ala. 
301;  Dickson  v.  Dickson,  1  Yerg. 
<Tenn.)  110;  Cox  v.  Combs,  8  B. 
Mon.  331;  Wilson  v.  Holt,  83  Ala. 
528,  3  So.  321;  Com.  v.  Lane,  113 
Mass.  458;  Van  Storch  v.  Griffln,  71 
Pa.  340;  Stephenson  v.  Gray,  17  B. 
Mon.  (Ky.)  193;  Putnam  v.  Putnam, 
8  Pick.  433;  Medway  v.  Needham, 
16  Mass.  157;  Com.  v.  Putnam,  1 
Pick.  136;  Scott  v.  Atty.  Gen.,  11 
P.  D.  138;  Warter  v.  Warter,  15  P. 
D.  153. 

This  doctrine  is  denied  in  Pen- 
negar  v.  State,  87  Tenn.  (3  Pickle), 
244,  10  S.  W.  305.  After  a  decree 
of  divorce  in  Tennessee  prohibit- 
ing the  wife  from  remarriage  dur- 


ing the  life-time  of  her  husband, 
the  wife  married  Pennegar,  her 
paramour,  in  Alabama,  while  the 
husband  was  living,  and  immedi- 
ately returned  to  Tennfessee,  where 
the  parties  cohabited  openly  as 
husband  and  wife,  and  Pennegar 
was  indicted  for  lewdness.  It  was 
held  that  he  was  guilty,  not  be- 
cause such  provision  of  the  statute 
had  any  extraterritorial  effect,  but 
because  the  marriage  was  void  as 
being  contrary  to  the  settled  policy 
of  the  state.  The  cases  cited  above 
were  disapproved  by  the  court  and 
the  dictum  of  an  English  case  was 
followed.  The  court  quoted  Brook 
V.  Brook,  9  H.  L.  Cas.  193:  "If  a 
marriage  is  absolutely  prohibited 
in  any  country  as  being  contrary 
to  public  policy  and  leading  to 
social  evils,  I  think  that  the  domi- 
ciled inhabitants  of  that  country 
cannot  be  permitted,  by  passing 
the  frontier  and  entering  another 
state  in  which  the  marriage  is  not 
prohibited,  to  celebrate  a  marriage 
forbidden  by  their  own  state,  and, 
immediately  returning  to  their 
own  state,  to  insist  on  their  mar- 
riage being  recognized  as  lawful." 
In  this  case  a  marriage  of  a  man 
to  the  sister  of  his  deceased  wife 


558  PKIOE  MAEEIAGE    UNDISSOLVED.  [§  SS^^ 

-  In  some  states  the  party  found  guilty  of  adultery  is  pro- 
hibited from  marrying  the  par  iioeps  criminis.  A  similar  pro- 
hibition is  found  in  Scotland.^  "There  is,"  says  Macqueen, 
"  a  standing  order  of  the  House  of  Lords  that  every  divorce 
bill  should  contain  a  clause  of  this  sort ;  .  .  .  but  though 
required  in  the.  bill  the  clause  is  not  retained  in  the  act, 
.  .  .  all  the  feelings  of  humanity,  and  all  the  dictates  of 
policy,  suggesting  that  the  guilty  parties  ought  not  to  be- 
debarred  from  making  amends  to  social  order  by  entering 
into  matrimony.  To  prevent  marriage  in  such  a  case  would 
be  but  to  prolong  the  unseemly  spectacle  of  adultery,  and 
to  inflict  bastardy  on  the  innocent  and  helpless  offspring." 
,  The  marriage  of  the  a,dulterer  with  his  paramour  is  ilot  void 
unless  -the  statute  expressly  declares  it  to  be  so.^  In  con- 
formity with  the  construction  of  all  statutes  regulating  mar- 
riage and  providing  penalties  for  violating  the  regulations, 
a  marriage,  violating  a  statutory  prohibition  referred  to  in 
this  section,  is  voidable  only  and  not  void.'  In  some  states, 
however,  a  marriage  prohibited  by  statute  is  held  to  be  ab- 
solutely void.*  But  the  better  and  prevailing  doctrine  is 
believed  to  be  that  no  marriage  in  violation  of  penal  or  di- 
rectory laws  is  to  be  held  void  unless  the  statute  expresdy 
declares  that  such  violation  renders  the  marriage  void. 

§589.  Bigamy  as  a  cause  for  divorce. —  This  chapter 
proceeds  upon  the  doctrine  that  if  the  first  marriage  is  valid 
and  undissolved,  the  second  marriage  is  a  nullity  ab  initio^ 

was  held  void,  although  the  parties  i  Bouglas  v.  Douglas,  Mor.  Diet, 

had  married  while  temporarily  in  329. 

Denmark,  where  such  marriage  is  s^damsu  Adams,3Chester(Pa.), 
valid.  The  Tennessee  case  cites  and  560.  > 
approves  Kinney  v.  Com.,  30  Grat.  'Mason  v.  Mason,  101  Ind.  25; 
858;  State  v.  Kennedy,  76  N.  C.  251,  Park  v.  Barron,  20  Ga.  702. 
and  State  v.  Boss,  76  N.  C.  243,  all  *  Barrowdale's  Estate,  28  Hun, 
cases  in  which  the  marriage  of  336;  Marshall  t;.  Marshall,  4  Thomp. 
a  white  person  and  a  negro  in  an-  &  C.  449;  Cropsey  v.  Ogden,  11 
other  state,  for  the  purpose  of  N.Y.  228;  Thompson  u  Thompson, 
evading  local  laws,  was  held  in-  114  Mass.  566;  Ponsford  v.  John- 
valid,  son,  2  Blatchf.  51;  Fuller  v.  Fuller,. 

40  Ala.  301. 


§  590.]  PEIOE   MAKEIAGE   UNDISSOLVED.  559 

and  the  only  relief  that  can  be  obtained  in  such  cases  is  to 
have  the  subsequent  marriage  annulled.  Although  the  stat- 
ute includes  bigamy  "with  other  causes  for  divorce,  the  inten- 
tion is  to  provide  a  remedy  for  void  marriages.  Where  the 
statute  pro^ades  that  a  void  marriage  shall  be  valid  until 
annulled,  the  second  marriage  will  be  treated  as  valid  and 
subsisting  until  such  decree  of  annulment  is  rendered.  In 
effect  this  would  make  the  issue  of  the  void  marriage  equal 
heirs  with  the  issue  of  the  first  marriage,  and  in  some  in- 
stances the  second  wife  would  be  entitled  to  alimony.  The 
terms  of  the  statute  governing  marriage  and  divorce  may 
contain  such  omissions  and  expressions  as  to  make  it  clear 
that  bigamy  is  to  be  treated  as  a  cause  for  divorce  and  not 
a  ground  for  annulment  of  the  marriage.  But  unless  this^ 
intent  clearly  appears,  the  true  construction  is  that  the  stat- 
ute is  intended  to  confer  jurisdiction  upon  the  court  to  grant 
the  proper  relief  in  certain  cases,  and  the  fact  that  a  ground 
for  nullity  was  included  among  causes  for  divorce  wiU  not 
prevent  the  court  from  annulling  the  marriage  and  thtus 
grant  the  same  relief  that  might  have  been  obtained  in  the 
ecclesiastical  courts.  The  statutes  also  declare  the  marriage 
of  one  of  the  parties  to  a  third  person  is  a  cause  for  divorce. 
Both  forms  of  statute  are  perhaps  unnecessary,  as  the  void 
marriage  can  be  annulled  and  the  remedy  for  subsequent 
void  marriage  is  a  divorce  for  adultery. 

§  590.  Effect  of  void  marriage  at  the  common  law. — 
A  void  marriage  at  common  law^  had  no  legal  effect.  Chil- 
dren born  of  such  marriages  were  bastards,  and  the  supposed 
wife  was  not  entitled  to  dower  or  property  rights.'  The- 
wise  and  humane  rule  of  the  civil  law  relieving  the  innocent 
party  from  the  result  of  a  grievous  mistake  in  contracting  a. 
void  marriage  has  not  softened  the  harshness  of  the  com- 
mon law.  Legislation  has,  however,  mitigated  the  evil  con- 
sequences of  the  void  marriage.  In  some  states  such  marriage 

1  Smith  V.  Smith,  5  Or.  186:  Don-  Higgins  v.  Breen,  9  Mo.  493;  Woods 
nelly  v.  Donnelly,  8  B,  Mon.  113;  v.  Woods,  3  Bay,  476;  Smart  v, 
Jackson  v.  Claw,  18  Johns.  346;    Whaley,  6  Sm.  &  M.  308. 


560  PEIOE   MAEKIAGE    UNDISSOLVED.  [§  591. 

is  voidable  and  not  void,  or  stands  as  a  good  marriage  until 
annulled  by  the  proper  court.'  In  many  of  tbe  states  the 
statutes  provide  that  the  issue  of  all  marriages  deemed  null 
in  law  shall  nevertheless  be  legitimate.^  But  it  is  believed 
that  in  no  state  except  Louisiana  is  the  stern  rule  of  the 
common  law  so  modified  as  to  give  the  innocent  party  any 
right  to  her  husband's  estate.  Either  party  may  obtain  a 
decree  annulling  a  bigamous  marriage.  The  ordinary  rules 
■of  estoppel  in  cases  of  fraud  do  not  apply  to  this  action,  be- 
cause the  marriage  is  void  independently  of  any  fraud  or 
admissions  of  the  guilty  party  who  has  entrapped  the  other 
into  the  marriage.  Sometimes  relief  is  granted  on  the  ap- 
plication of  the  guilty  party.' 

§  591.  Told  marriages  under  the  civil  law. —  The  laws 
of  Louisiana  are  derived  principally  from  the  civil  law  as  it 
/existed  in  France  and  Spain.  The  civil  code  of  that  state 
relating  to  putative  marriages  is  the  same  as  the  French 
•code,  and  provides  that  "  the  marriage  which  has  been  de- 
clared null  produces  its  civil  effects  as  it  relates  to  the  par- 
ties and  their  children  if  it  had  been  contracted  in  good 
faith.  If  only  one  of  the  parties  acted  in  good  faith,  the 
marriage  produces  its  civil  effects  only  in  his  or  her  favor 
and  in  favor  of  children  born  of  the  marriacfe."  *    This  is  a 


■"o^ 


1  VaUeau  v.  Valleau,  6  Paige,  207;  Watts  v.  Owens,  62  Wis.  513;  Glass 

Cropsey  v.  McKinney,  30  Barb.  47;  v.  Glass,  114  Mass.  563;  Hatwell  v. 

Gall  V.  Gall,  114  N.  T.  109;  White  Jackson,   7  Tex.   576;  Graham  v. 

iv.   Lowe,   1    Eedf.   376;    Wyles  v.  Bennet,  3  Cal.  503;  Curtis  v.  Hew- 

Gibbs,  1  Redf.  383;  Spicer  u  Spicer,  ins,  11  Met.  394;  Hiram  v.  Pierce, 

16  Abb.  Pr.  (N.  S.)  113;  Machini  v.  45  Me.  867;  Earle  v.  Dawes,  3  Md. 

Zanoni,  5  Eedf.  493;   Jones  v.  Zol-  Ch.  330. 

ler,  33  Hun,  280,  39  Hun,  551.    See  » Glass  v.  Glass,  114  Mass.  563; 

construction    of    California    civil  Anonymous,  3  Thompson  &  C.  558, 

code,  sec.  61,  in  Jackson  v.  Jack-  15  Abb.  Pr.  (N.  S.)  171;  Miles  v. 

son,  94  Cal.  446,  29  P.  957.  Chilton,  1  Bob.  Ec.  684;  Norton  v, 

2Teter   v.  Teter,   101    Ind.   139;  Seaton,  3  Phillim.  147.    See  contra, 

Wright  V.  Lore,  13  O.  St.  619;  Dyer  Tefft  v.  Te£Et,  35  Ind.  44 

V.  Brannock,  66  Mo.  391 ;  Lincecum  *  Articles  117  and  118  of  the  Civil 

V.  Lincecum,  3  Mo.  441;  Harris  u  Code  of  Louisiana,  and  articles  391, 

Harris,  85  Ky.   49,  3  S.  W.   549;  293,  Napoleon  Code. 
Bowers  V.  Bowers,  1  Ab.  Pr.  214; 


,§  591.J  PKIOE   MAEKIAGE    UNDISSOLVED.  561 

"wise  and  beneficent  rule,  relieving  the  innocent  party  and 
his  or  her  heirs  from  all  forfeitures,  and  declaring  the  chil- 
dren of  the  marriage  legitimate.  Similar  provisions  might 
Avell  be  adopted  in  all  the  states.  The  good  faith  here  re- 
ferred to  means  an  honest  and  reasonable  belief  that  the 
marriage  was  valid  and- that  there  existed  no  legal  impedi- 
ment thereto.'  The  party  is  deemed  to  have  exercised  good 
faith  whether  she  has  made  a  mistake  of  law  or  of  fact.^ 
Although  the  naarriage  between  an  uncle  and  niece  may 
have  been  a  nullity,  the  wife  is  held  to  have  acted  in  good 
faith  where  she  acted  upon  the  advice  of  friends  and  counsel 
that  such  marriage  would  be  valid.'  A  wife  does  not  act  in 
good  faith  where  she  relies  upon  the  mere  statement  of  the 
man  that  he  is  divorced,  when  she  has  been  informed  by  the 
first  wife  that  there  was  no  divorce  and  has  been  warned 
by  others  to  the  same  effect.*  Perfect  good  faith  is  shown 
where  a  decree  of  divorce  has  been  obtained  but  is  void  for 
want  of  jurisdiction  or  other  cause.'  Under  this  code  a 
woman  who  is  deceived  into  a  marriage  with  a  man  who 
has  a  wife  living  and  undivorced  becomes  entitled  to  all  the 
rights  of  a  wife,  and  the  children  born  of  this  marriage  are 
legitimate.*  Thus,  where  the  second  wife  marries  in  good 
faith  while  the  first  marriage  is  undissolved,  at  the  death  of 
the  husband  she  and  her  children  by  deceased  will  share  the 
conamunity  property  with  the  first  wife  and  her  children 

1  Harrington  v.  Barfleld,  30  La.    band's  estate.   Succession  of  Llula, 
An.  1297;  Succession  of  Navarro,    44  La.  An.  61. 

24  La.  An.  398;  Abston  v.  Abston,  5  Smith  v.  Smith,  43  La.  An.  1140. 

15  La.  An.  137.  «  Gaines  v.  New  Orleans,  6  Wall. 

2  Succession  of  Buissiere,  41  La.  642;    Gaines  v.  Hennen,  24  How. 
An.  317,  5  So.  Eep.  668.  (U.  S.)  553;  Summerlin  v.  Liying- 

3  Id.  ston,  15  La.  An.  519;  Colwell's  Suo- 
*  Taylor's  Succession,  39  La.  An.    cession,  34  La.  An.  265;  Hebert's 

833.   She  does  not  act  in  good  faith  Succession,  33  La.  An.  1099;  Hub- 

where  she  deserts  her  husband  and  bell  v.  Inkstein,  7  La.  An.  252.    See, 

marries  another  man  and  resides  also,  Gregory   v.  Dyer,  15  Lower 

in  the  same  community  as  her  hus-  Canada   J.  223;   Morin  v.  Cor  de 

tend.    In  such  case  she  is  not  en-  Pilots,  8  Quebec,  232. 
titled  to  a  share  of  the  second  hus- 
86 


562  PRIOR   MARRIAGE   UNDISSOLVED.  [§591, 

by  deceased.'  Or  if  the  parties  separate  before  the  death  of 
the  husband,  the  interests  of  the  parties  of  the  second  mar- 
riage will  be  regulated  in  the  same  manner.  Should  the 
disability  which  rendered  the  marriage  void  be  subsequently 
removed,  the  putative  marriage  becomes  good.^ 

1  Jennan  v.  Tenneas,  44  La.  An.  2  Smith  v.  Smith,  1  Tex.  631 ;  Lee 
620;  Abston  v.  Abston,  15  La.  An.  ii.  Smith,  18  Tex.  141;  Patton  v. 
137.  Philadelphia,  1  La.  An.  98.         ' 


FRAUD,  ERROR  AND  DURESS. 


600. 

In  general 

§  611. 

601. 

Jurisdiction  in  the  absence 

of  statute. 

613. 

603. 

Fraud  where  the  marriage 

is  not  consiunmated. 

613. 

603. 

Affirmance  of  marriage. 

604. 

Misrepresentation   of  chas- 

614 

tity. 

615. 

605. 

Representing  her  child  le- 

616. 

gitimate. 

617. 

606. 

Pregnancy  concealed  from 

618. 

innocent  husband. 

619. 

607. 

Concealed  pregnancy,   hus- 

band guilty  of  fornication. 

620. 

608. 

False  representation  as  to 
paternity. 

621. 

609. 

False  representation  as  to 

633. 

paternity  —  Child  born  be- 

623. 

fore  marriage. 

634 

610. 

Pretended  pregnancy. 

Conspiracy  to  bring  about 
marriage. 

False  representations  as  to 
wealth  and  character. 

Fraud  in  obtaining  license — 
False  ceremony. 

Misrepresentation  of  age. 

The  evidence  of  fraud. 

Error  or  mistake. 

Duress,  in  general. 

What  duress  is  sufficient. 

Unlawful  arrest  or  impris- 
onment. 

Marriage  under  arrest. 

Threats  of  arrest  and  imr 
prisonment. 

Duress  from  other  parties. 

Effect  of  consummation. 

Pleading  and  e\ridenc& 


§  600.  In  general The  three  grounds  for  annulment  of 

marriage — fraud,  error  and  duress — are  best  treated  together 
in  the  same  chapter,  since  they  are  cognate  subjects.  These 
elements  occur  in  the  same  cases  in  a  manner  rendering  it 
difficult  to  give  each  subject  a  separate  analysis.  Thus, 
where  a  woman,  pregnant  by  another,  procures  a  marriage 
with  a  man  who  has  sinned  with  her,  by  falsely  representing 
that  the  child  is  his,  and  by  the  threats  of  arrest  and  im- 
prisonment, all  three  of  the  subjects  are  involved  in  the  case. 

The  subject  is  difficult  and  judicial  opinions  are  few  and 
not  very  satisfactory.  It  would  seem  that  the  fraud  which 
justifies  the  cancellation  of  an  ordinary  contract  would  be 
sufficient  to  relieve  a  party  from  a  marriage  procured  by 


564  FEAUD,  EEKOK  AND  DDEESS.  [§  600. 

fraud.  The  ordinary  contract,  if  sustained,  may  impose  a 
pecuniary  loss  from  which  the  injured  party  will  easily  re- 
cover without  serious  or  continued  evil  consequences.  But 
if  a  marriage  procured  by  fraud  is  not  annulled  the  most 
serious  consequences  follow;  the  parties  are  bound  in  law  to 
love  and  cherish  when  in  fact  this  is  impossible.  The  fraud 
and  duress  engender  a  loss  of  respect  and  hatred  which  will 
prevent  the  performance  of  duties  of  the  marriage,  and  the 
relation  will  not  exist  except  in  its  legal  effect.  A  decree 
affirming  a  marriage  procured  by  fraud  sufficient  to  entrap 
th^  weaker  party  is  in  such  case  a  mere  nullity  so  far  as  the 
stability  of  the  marriage  relation  is  concerned,  but  is  what 
the  defrauding  party  designed  it  to  be — a  decree  conferring 
all  the  property  rights  of  a  valid  marriage.  Public  policg^, 
it  would  seem,  does  not  require  the  weaker  party  to  forfeit 
property  rights  in  such  cases  in  order  to  sustain  the  stability 
of  marriage  as  a  public  institution.  On  the  contrary  it  would 
seem  that  as  marriage  entails  such  important  responsibilities, 
imposes  duties,  both  public  and  private,  and  continues  these 
duties  and  responsibilities  throughout  the  joint  lives  of  the 
parties,  that  public  policy  would  require  the  marriage  to  be 
annulled  for  a  less  degree  of  fraud  than  would  render  a  con- 
tract voidable.  Thus,  where  a  professional  thief,  without 
means,  by  fraudulent  representations  procures  a  conveyance 
of  real  estate  from  a  credulous  and  confiding  woman,  she  is 
entitled,  by  all  authorities,  to  have  this  conveyance  set  aside. 
But  if  this  same  thief  should,  by  representations  as  fraudu- 
lent and  effective,  persuade  the  woman  that  he  has  character 
and  wealth,  and  she  in  reliance  thereon  marries  him,  the 
courts  have  not  agreed  that  the  marriage  should  be  annulled. 
One  line  of  authorities  maintain'  that  his  representation  as 
to  wealth  and  character,  although  sufficient  to  deceive  the 
credulous  party  and  obtain  consent  to  the  marriage,  is  never- 
theless a  small  deception  as  to  a  non-essential  fact — a  mere 
exaggeration  which  is  immaterial  if  the  party  is  in  fact  of 
sound  mind  and  perfect  body.  The  relief  is  denied  because 
it  would  tend  to  weaken  the  sentiment  and  stability  of  mar- 


§  601.]  FRAUD,  EKEOE  AND  DURESS.  565 

riage  if  such  misrepresentations  were  grounds  for  annul- 
ment. Directly  opposed  to  this  is  the  view  that  if  a  marriage 
is  procured  by  such  representations  it  should  be  annulled; 
that  to  deny  relief  in  such  a  case  will  not  tend  to  maintain 
the  stability  of  marriage  as  a  public  institution,  but  Avill 
rather  tend  to  bring  reproach  upon  the  administration  of 
justice;  that  no  mandate  of  the  law  will  deter  the  weak, 
credulous  and  ignorant  from  indiscreet  marriage.  The  latter 
view  is  the  most  humane  and  practical,  the  best  public  policy 
and  most  consonant  with  the  general  law  of  fraud,  but  must 
be  received  with  caution  and  subject  to  some  exceptions. 

The  exceptions  are  created  by  the  fact  that  marriage  in- 
volves the  interest  of  the  state,  the  rights  of  the  unborn, 
the  social  and  the  legal  relations  of  husband  and  wife  to  the 
general  public.  Marriage  begins  by  contract  and  results  in 
a  status.  If,  before  children  are  begotten,  before  debts  are 
created,  real  estate  involved,  and  the  community  have  long 
recognized  the  relation,  the  injured  party  seeks  relief  from 
fraud,  error  or  duress,  it  seems  clear  that  no  consideration 
of  public  policy  wiU  prevent  a  court  from  annulling  a  mar- 
riage where  the  relation  has  not  fully  ripened  into  the  com- 
plications of  a  public  statxis.  In  such  case  the  marriage  is 
but  little  more  than  a  contract ;  and,  in  view  of  the  serious 
consequences  to  foUow,  the  degree  of  fraud  which  vitiates  a 
contract  should  be  sufficient. 

But  after  long  cohabitation,  when  a  chUd  is  begotten, 
debts  created  and  titles  acquired,  the  public  has  an  interest 
in  the  continuance  of  the  relation.  In  such  case  the  law  is 
clear.  The  injured  party  is  denied  relief  because  the  delay 
is  too  great  or  the  marriage  is  affirmed.  The  authorities 
are  not  in  accord  on  many  questions  relating  to  fraud,  and 
it  may  be  said  that  fundamental  principles  of  this  most  dif- 
ficult subject  are  still  in  dispute. 

§601.  Jurisdiction  in  absence  of  statute.— Although 
the  statute  did  not  specify  fraud  as  a  ground  for  the  annul- 
ra.ent  of  marriage,  the  courts  may  determine  cases  of  this 


566  FEAUB,    EEEOE   AND   DTJEESS.  [§  602. 

kind  under  the  general  jurisdiction  of  courts  of  equity"  to 
annul  fraudulent  contracts.' 

In  'Ne^v,  Jersey,  at  a  time  when  the  constitution  prohib- 
ited legislative  divorces  and  there  was  no  provision  of  con- 
stitution or  statute  conferring  jurisdiction  in  such  cases 
upon  any  tribunal,  it  was  held  that  the  court  of  chancery 
had,  under  its  general  power  to  annul  fraudulent  contracts, 
the  jurisdiction  to  annul  a  marriage  on  account  of  fraiid,^ 

§  602.  Fraud  where  the  marriage  is  not  consummated. 
After  the  marriage  is  consummated  the  parties  have  fully 
executed  the  contract  of  marriage ;  their  status,  is  fixed  so 
far  as  the  public  is  concerned,  the  property  rights  of  each 
party  are  determined  with  reference  to  their  new  relation, 
and  children  have  acquired  rights.  To  disregard  these  rights 
and  to  annul  the  marriage  is  a  harsh  remedy,  not  to  be  re- 
sorted to  except  in  extreme  cases  of  fraud  or  mistake.  But 
before  consummation  the  parties  stand  upon  almost  the 
same  footing  as  the  parties  to  an  ordinary  contract.  In  one 
case  there  has  been  a  ceremony  performed  before  a  priest  or 
some  person  authorized  by  law,  and  in  the  other  case  the 
contract  is  oral  or  reduced  to  writing,  and  signed  before  wit- 
nesses. No  writing  however  forma),  and  no  signing  how- 
ever well  attested,  wiU  prevent  the  law  from  relieving  the 

1  Clark  V.  Field,  13  Vt.  460;  Keys  of  marriage  obtained  by  fraud  al- 

V.  Keys,  32  N.  H.  553;   Burtis  v.  though  there  is  a  suit  pending  in 

Burtis,  Hopkins,  557 ;  Sloan  v.  Kane,  the  state  courts  to  obtain  a  decree 

10  How.  Pr.  66;  Aymar  v.  Eofif,  3  that  a  marriage  exists  between  the 

Johns.  Ch.  49;  Wightmanu  Wight-  parties.    Compare  Sharon  u  Hill, 

man,  4  Johns.   Ch  343;    Scott  v.  22  Fed.  1,  and  Sharon  u  Sharon,  67 

Sohufeldt,  5  Paige,  43;  Eespublica  Cal.  185.    It  seems  that  the  valid- 

V.  Henrici.  3    Wheel.   C.   C.    505;  ity  of  a  man-iage  may  be  deter- 

HuU  V.  Hull,  15  Jur.  710;  Jolly  v.  mined  in  a  collateral  suit  in  a  law 

McGregor,  3  Wils.  &  S.  85.    In  the  court,  but  only  as  to  that  particu- 

following    cases  jurisdiction  was  lar  proceeding.     Ferlat  v.  Gojon, 

assumed:    Robertson    v.    Cole,    18  Hopkins' Ch.  478;  Clark  u  Field,  18 

Tex.  356;  Weir  v.  Still,  31  la.  107;  Vt.  460. 

True  V.  Ranny,  1  Foster  (N.  H.),  52;  2  Carris  v.  Carris,  34  N.  J.  Eq.  516 

Eeynolds  v.  Reynolds,  85  Mass.  605.  (1873),  citing  and  approving  the  de- 

The  federal  courts  have  jurisdic-  cisions  of  New  York, 
tion  to  annul  a  written  contract 


§  602.]  FRAtlD,    EKEOK   AND   DUEESS.  5G7 

injured  party  from  the  fraud,  error  or  duress  which  induced 
him  to  enter  into  the  contract.  And  the  question  arises,  Shall 
a  mere  ceremony  of  marriage  be  set  aside  like  any  formal 
contract  where  the  innocent  party  discovers  the  fraud  or 
mistake,  and  escapes  from  the  control  of  the  other  before 
consummation?  Although  such  cases  have  been  reported, 
no  one  of  them  contains  a  reference  to  this  distinction,  that 
consummation  materially  alters  the  status  of  the  parties; 
and  none  of  them  affirm  or  deny  that  ordinary  fraud  would 
be  sufficient  where  the  defrauded  party  repudiated  the  mar- 
riage before  consummation.'  In  one  case  we  find  reference 
made  to  the  mere  fact  that  there  was  no  consummation,  but 
the  court  seems  to  have  proceeded  upon  the  theory  that  the 
material  fraud  in  obtaining  a  license  was  sufficient.  The 
defendant  in  this  case  was  a  coachman,  and  while  driving 
about  the  city  in  such  employment  he  inveigled  his  employ- 
er's daughter,  a  child  fifteen  years  old,  into  a  marriage,  hav- 
ing first  obtained  a  license  by  falsely  swearing  that  she  was 
of  age.  The  court  was  of  the  opinion  that  such  marriage 
was  not  valid.  "  If,  however,  notwithstanding  this  crimfe, 
the  parties  had  voluntarily  lived  together  as  man  and  wife, 
she  knowing  it  had  been  committed,  the  niarriage  would  be 
held  valid  on  the  principle  of  acquiescence."  ^ 

Where  there  has  been  no  consummation,  any  fraud  which 
would  be  sufficient  to  annul  a  contract  should  in  reason  be 
sufficient  to  annul  a  marriage  ceremony.  'So  satisfactory 
reason  of  the  law  will  justify  the  courts  in  declaring  valid 
such  a  contract  of  marriage  when  tainted  with  fraud  or 
duress,  where  the  only  effect  wiU  be  the  punishment  of  the 

1  Shoro  V.  Shoro,  60  Vt.  368,  14  A.    355;  Harford  v.  Morris,  2  Hag.  Con. 


177;  Keys  v.  Keys,  23  N.  H.  553 
Robertson  v.  Cole,  13  Tex.  356 
Sloan  V.  Kane,  10  How.  Pr.  66 
Scott  V.  Schufeldt,  5  Paige,  43 
Jolly  V.  McGregor,  3  Wils.  &  S.  85 


423;  Hull  v.  Hull,  15  Jur.  710;  Res- 
publica  V.  Henrici,  3  Wheeler,  Crim. 
Cas.  505;  Dalrymple  v.  Dalrymple, 
3  Hag.  Con.  54;  Harford  v.  Morris, 
2  Hag.  Con.  433. 


Perry  v.  Perry,  3  Paige,  501;  Fer-  2  Lyndon  v.  Lyndon,  69  111.  43. 
lat  V.  Gojon,  Hopkins,  478;  Ports-  See,  also,  Robertson  uCole,  13  Tex. 
mouth  V.  Portsmouth,  1  Hag.  Eo.    356. 


568  FEAUD,  EEEOE  AND,  DUEESS.  [§  603, 

innocent  and  the  confiscation  of  his  or  her  property  by  the 
deception.  If  the  marriage  is  declared  valid  it  will  exist  in 
name  only,  preventing  both  parties  from  marrying  again 
and  bringing  the  marriage  relation  into  disrepute.  Every 
reason  for  relief  from  fraud  is  applicable  here,  where  a  de- 
nial of  relief  is  fraught  with  evil  consequences  much  greater 
than  those  flowing  from  ordinary  contracts. 

§  603.  Affirmance  of  marriage. —  Ordinarily  a  party  wha 
continues  cohabitation  after  being  induced  by  fraud  to  enter 
into  a  marriage  is  held  to  have  affirmed  the  marriage,  and 
is  bound  by  it.  Before  a  party  discovers  the  fraud  of  which 
he  complains,  he  is  not  barred  by  any  conduct  which  would 
otherwise  prove  a  ratification  or  affirmance  of  the  marriage. 
'No  doctrine  of  condonation  or  estoppel  applies  where  the 
party  asking  for  relief  separated  from  the  other  as  soon  as 
the  wrong  was  discovered.  But  for  reasons  of  public  policy, 
a  marriage  should  not  be  annulled  after  the  parties  have 
cohabited  as  husband  and  wife  for  years.  Thei'e  are,  how- 
ever, some  instances  where  the  fraud  must  be  discovered 
within  a  reasonable  length  of  time  after  the  marriage,  and 
in  such  cases  a  cohabitation  until  the  discovery  of  fraud  is 
not  a  bar;  as  where  the  fact  that  the  wife  was  pregnant  by 
another  is  not  discovered  until  some  months  after  the  child 
is  born.  Thus,  in  a  Michigan  case,  a  young  man  became 
acquainted  with  a  woman  by  correspondence,  and  after- 
wards married  her  on  the  third  day  after  meeting  her.  Six 
months  after  the  marriage  and  during  the  husband's  ab- 
sence she  gave  birth  to  a  fuUy-developed  child.  "When  the 
child  was  two  weeks  old  he  came  home,  and  the  wife  ex- 
plained to  him  that  the  birth  was  premature,  and  that  the 
child  when  born  was  undeveloped,  but  had  developed  won- 
derfully in  two  weeks'  time.  The  husband,  being  ignorant 
and  inexperienced,  accepted  this  explanation,  and  lived  with 
the  wife  for  six  months,  when  the  fraud  was  discovered  and 
he  separated  from  her.  It  was  held  that  such  cohabitation 
did  not  bar  the  suit.'    By  statute  in  some  states  cohabita- 

iHanisoQ  v.  Harrison,  94  Mich.  599,  54  N.  W.  274 


§  604.]  FEAUD,    EEEOE   AlfD   DUEBSS.  56^ 

tion  after  the  marriage  will  bar  an  action  to  annul  the  mar- 
riage.' But  such  statutes  are  to  be  interpreted  with  refer- 
ence to  the  common  law,  and  refer  to  cohabitation  after 
discovery  of  the  fraud. 

§604.  Misrepresentation  of  chastity.  —  Ante-nuptial 
chastity  is  not  deemed  such  essentialia  of  the  marriage  rela- 
tion that  a  misrepresentation  concerning  it  amounts  to  a 
fraud  rendering  the  marriage  voidable.^  It  is  not  denied  that 
such  misrepresentation  is  a  gross  fraud,  causing  great  un- 
happiness,  where  a  virtuous  person  finds  he  is  married  for 
life  to  prostitute  or  a  woman  whose  ill  repute  is  generally 
known.  Ifor  is  it  denied  that  the  consequences  may  be 
equally  disastrous  where  the  incontinence  has  resulted  in 
pregnancy ;  for,  in  either  case,  if  the  parties  have  any  high 
sense  of  honor  or  virtue,  they  wiU  refuse  to  continue  the 
marriage  relation.  But  the  law  denies  reUef  in  such  cases 
on  grounds  of  public  policy.  In  a  carefully  considered 
opinion  in  a  case  of  concealed  pregnancy,  Bigelow,  Chief 
Justice,  reasons  as  follows :  "  In  regard  to  continence,  as 
well  as  other  personal  traits  and  attributes  of  character,  it 
is  the  duty  of  a  party  to  make  due  inquiry  beforehand,  and 
not  to  ask  the  law  to  relieve  him  from  a  position  into  which 
his  own  indiscretion  or  want  of  diligence  has  led  him.  Cer- 
tainly it  would  lead  to  disastrous  consequences  if  a  woman 
who  had  once  fallen  from  virtue  could  not  represent  herself 
as  continent,  and  thus  restore  hei-self  to  the  rights  and  priv- 
ileges of  her  sex,  and  enter  into  matrimony  without  incur- 
ring the  risk  of  being  put  away  by  her  husband  on  discovery 
of  her  previous  immorality." '  If  marriages  should  be  an- 
nulled for  this  cause,  the  incontinent  would  live  Avithout 
hope,  condemned  to  celibacy  and  doomed  to  incontinence. 

1  Glinsman  v.  G-linsman,  13  How.  v.  Carrington,  2  De  F.  &  J.  481. 
Pr.  33;  MuUer  v.  Muller,  21  Weekly  See,  also,  Best  v.  Best,  1  Adams, 
Digest  (Pa.),  287.  411;  Graves  v.  Graves,  3  Curties, 

2  Varney  v.  Varney,  53  Wis.  130;  395. 

WiUiams  v.  WiUiams,  63  Wis.  58 ;  ^  Reynolds  v.  Reynolds,  85  Mass. 
Allen's  Ap.,  99  Pa.  St.  196;  Evans    605. 


570  rEATJD,    EEEOE   AND   DUEESS.  [§§  605 j"  606. 

It  would  prevent  reform  and  permit  the  reputation  of  the 
virtuous  to  be  destroyed  by  manufactured  testimony.  And 
it  has  been  suggested  that,  in  states  where  communications 
between  husband  and  wife  are  excluded,  if  the  husband,  on 
being  informed  by  her  of  the  misbehavior,  should  forgive 
her  wrong-doing,  this  forgiveness  could  not  be  shown  in  a 
suit  to  annul  the  marriage  for  this  cause.^  Ante-nuptial  in- 
c:)ntinence  is  a  cause  for  divorce.^ 

§  605.  Representing  her  child  legitimate  —  Divorcee 
claiming  to  he  single. —  Nor  is  the  concealment  of  ante- 
nuptial incontinence  resulting  in  the  birth  of  a  child  a  fraud 
suiilcient  to  render  the  marriage  voidable.  A  representar 
tjon  by  a  woman  that  her  child  is  the  fruit  of  a  former  mar- 
riage, when  in  fact  the  child  is  illegitimate,  is  not  a  fraud  in 
the  essentialia  of  the  inarriage  relation,  aad  in  this  respect 
resembles  misrepresentations  as  to  chastity.'  The  law  en- 
courages the  mother  of  a  bastard  child  to  reform  and  pro- 
tects her  in  the  marriage  relation,  and  refuses  to  annul  the 
marriage  for  concealing  her  unchastity. 

For  similar  reasons  misrepresentations  as  to  the  stdtus  of 
the  person,  whether  single  or  divorced,  is  not  such  a  serious 
fraud  as  will  justify  an  annulment  of  the  marriage.  If  a 
woman  represents  herself  as  a  maiden  when  she  is  a  widow 
or  a  divorced  woman,  or  if  a  man  represents  that  he  is  a 
bachelor  when  he  is  a  widower  or  a  divorcee,  the  misrepre- 
sentation is  not  a  sufficieat,f  raud,  if  the  complaiiaing  party 
does  not  discover  the  fraud  before  the  marriage  is  consum- 
mated.* 

' ,  §  606.  Pregnancy  concealed  from  innocent  hashand. — 
It  is  now  weU  established  that  a  marriage  is  voidable  for 
fraud  where  the  woman  conceals  her  pregnancy  from  the 
man  who  has  had  no  improper  relations  with  her  and  who 

1  Leavitt  v.  Leavitt,  13  Mich.  453.    this  case  the  wife  represented  her- 

2  See  Ante-nuptial  incontinence,  self  single  when  in  fact  she  had 
§  380.  been  married  and  had  obtained  a 

SFarr  r.  Farr,  2  Mac  Arthur,  35;  divorce  from  her  former  husband. 
Smith  V.  Smith,  8  Or.  100.  The  opinion  does  not  state  that  the 

^  Fisk  V.  Fisk,  12  Misc.  466.    In    marriage  was  consummated. 


§  606.]  FEAUD,  ERROR  AND  DURESS.  571 

marries  lier  without  knowledge  of  her  condition.'  The  true 
reason  for  considering  this  conceahnent  a  fraud  is  that  a 
"woman  who  consents  to  marry  a  man  impliedly  represents 
lierself  to  her  future  husband  as  chaste  and  able  to  bear  him 
his  own  children.  "  A  child,"  said  Field,  J.,  "  imposes  bur- 
dens and  possesses  rights.  It  would  necessarily  become  a 
charge  upon  the  defendant  and,  through  her,  upon  the  plaint- 
iff. It  would  become  presumptive  heir  of  his  estate,  and  en- 
titled under  our  law,  as  against  his  testamentary  disposition, 
to  an  interest  in  his  property  acquired  after  marriage,  to 
the  deprivation  of  any  legitimate  offspring.  Tlie  assump- 
tion of  such  'burdens,  and  the  yielding  of  such  rights,  cannot 
be  inferred  in  the  absence  of  actual  hnowledge  of  her  condi- 
tion on  his  part.''''  ^  And  we  find  the  same  reason  given  bv 
the  Massachusetts  court :  "  Therefore  a  woman  who  is  in- 
capable of  bearing  a  child  to  her  husband  at  the  time  of  her 
marriage,  by  reason  of  her  pregnancy  by  another  man,  is 
unable  to  perform  an  important  part  of  the  contract  into 
which  she  enters ;  and  any  representation  which  leads  to  the 
belief  that  she  is  in  a  marriageable  condition  is  a  false  state- 
ment of  a  fact  material  to  the  contract,  and  on  well  settled 
principles  affords  good  ground  for  setting  it  aside  and  de- 
claring the  marriage  void.'^,  .  .  .  "There  is  no  sound 
rule  of  law  or  consideration  of  policy  which  requires  that  a 
marriage  procured  by  false  statements  or  representations, 
and  attended  with  such  results  upon  an  innocent  party, 
rshould  be  held  valid  and  binding  on  him."  ' 

These  reasons,  it  will  be  noticed,  have  peculiar  reference 
to  marriage  as  a  physical  union.  But  if  other  reasons  were 
necessary  to  sustain  a  doctrine  so  manifestly  sound  and  just, 
it  may  be  urged  that  marriage  is  also  an  intellectual  and 

1  Baker  v.  Baker,  13  Cal.  87;  Key-    Harrison  v.  Harrson,  94  Mich.  599, 


nolds  V.  Reynolds,  85  Mass.  605 
Morris  v.  Morris,  Wright,  630 
Donovan  v.  Donovan,  91  Mass.  140 
-Carris  v.  Carris,  34  N.  J.  Eq.  516 
Allen's  Ap.,  99  Pa.  196;  Nadra  v. 
:Nadra,  79  Micli.  591,  44  N.  W.  1046 


54  N.   W.  275;  Bitter  u   Bitter,  5 
Blackford,  81. 

2  Baker  v.  Baker,  13  Cal.  87. 

3  Beynolds  v.  Beynolds,  85  Mass. 
605. 


572  FKAUD,  EEEOE  AND  D0EESS.  [§  606. 

spiritual  union,  based  upon,  love  and  confidence,  and  a  decep- 
tion so  base  is  a  fraud  upon  the  party  contracting  for  such 
love  and  confidence.  If  a  bride  is  pregnant  by  a  stranger 
at  the  time  of  maiTiage  she  is  incompetent  to  enter  that 
relation,  viewed  in  its  highest  and  holiest  sense;  and  her 
mere  consent  to  enter  the  relation  implies  a  warranty  on 
her  part  that  she  is  competent  to  do  so.  Manifestly,  it  is 
not  required  that  a  man  shall  make  indecent  and  insulting 
inquiries  before  marriage.  But  the  courts  have  held  that  a 
nian,  having  married  a  woman  who  has  fallen  at  least  once, 
takes  her  with  notice  that  she  is  unchaste  and  is  thereby  put 
upon  his  guard,  and  is  bound  to  accept  as  his  own  any  child 
that  may  be  born  after  the  marriage,  whether  black  or 
white.^  The  injustice  of  such  decision  is  as  remarkable  as 
the  erroneous  conclusion  of  fact  upon  which  the  reasoning 
is  based.  It  is  not  a  fact  that  a  woman,  who  once  yields  to 
the  man  she  loves,  has  been  unchaste.  Such  presumption 
is  violent  and  is  not  based  upon  the  usual  course  of  human 
conduct.  It  is  in  contrast  with  that  wholesome  and  just 
presumption  of  the  law  that  innocence  is  always  presumed. 
And  the  law  of  notice  is  not  applicable  to  questions  of 
chastity  for  certain  physical  reasons  not  necessary  to  be  dis- 
cussed here. 

Some  courts  have  denied  relief  because  the  plaintiff  is 
himself  participant  in  the  wrong.  The  rule  of  equity  that 
the  plaintifif  must  come  with  clean  hands  applies  to  those 
cases  only  where  the  plaintiff  is  guilty  of  some  evil  con- 
duct in  reference  to  the  transaction  before  the  court,  and 
relief  is  never  denied  because  he  leads  an  immoral  life,  or 
is  unscrupulous  in  other  business.  Here  the  wrong  com- 
plained of  is  a  child  begotten  by  another  which  the  woman 
attempts  to  force  upon  him  as  his  own.     It  is  difficult  to 

1  Seilheimer  v.  Seilheimer,  40  N.  Scroggins  v.  Scroggins,  3  Dev.  &  B. 

J.  Eq.  413;  Crehore  u  Creboie,  97  535.  See  dissenting  opinion,  Sissung 

Mass.  330;  Long  v.  Long,  77  N.  C.  v.  Sissung,  65  Mich.  168,  31  N.  W. 

304;    Foss   v.  Foss,   94   Mass.    26;  770. 
States  V.  States,  37  N.  J.  Eq.  195; 


§  607.]  FEAUD,  EREOE  AND  DUEESS;  573 

see  how  this  rule  applies  to  these  cases  where  the  plaintiff 
has  had  intercourse  with  a  woman  who  at  the  time  was 
pregnant  by  another.^ 

§  607.  Concealed  pregnancy,  husband  guilty  of  forni- 
cation.—  The  same  evil  consequences  flow  from  the  birth  of 
a  child  begotten  by  a  stranger,  whether  the  husband  is 
guilty  or  innocent  of  fornication  with  the  woman.  He  must 
support  a  bastard  child  who  comes  into  his  home  an  unin- 
vited guest  and  unwelcome  heir.  If  an  upright  and  right- 
minded  man,  who,  having,  as  he  supposed,  seduced  a  virtuous 
woman,  and  then,  to  obliterate  her  sin  as  far  as  he  can,  has 
married  her,  believing  she  bears  in  her  womb  the  fruit  of 
their  first  indiscretion,  discovers  that  he  has  been  deceived, 
is  he  bound  by  such  a  marriage?  Must  he  be  compelled  to 
live  with,  or  at  least  support,  a  woman  who  has  thus  betrayed 
him?  Must  he  be  compelled  to  recognize  this  bastard  as  his 
own  offspring,  as  the  heir  of  his  own  name  and  estate,  as  an 
object  of  life-long  humiliation?  "Upon  what  principle  of 
justice  can  the  law  impose  such  consequences  except  upon' 
the  ground  that  he  voluntarily  consented  to  it?  No  good 
purpose  win  be  subserved  by  charging  upon  a  man  who  has 

1  These  reasons  are  now  gener-  not,  and  thus  persuaded  the  man 
ally  accepted.  But  in  an  early  to  marry  her.  Barden  v.  Barden, ' 
case  in  North  Carolina  the  court,  in  3  Dev.  548.  The  court  justified 
refusing  to  release  certain  white  this  change  of  doctrine  as  a  "  con- 
parties  where  the  wife  gave  birth  cession  to  the  deep-rooted  and 
to  a  mulatto  child,  did  not  recog-  virtuous  prejudice  of  the  com- 
nize  fraud  as  a  cause  for  annul-  munity."  From  which  Rodman, 
ment  of  marriage.  Scroggins  v.  J.,  infers  that  the  court  had  ascer- 
Scroggins,  3  Dev.  533  (1832).  The  tained  that  the  common  sense  of 
court  said  there  was,  "  in  general,  the  people  rejected  the  former 
no  safe  rule  but  this:  that  persons  opinion  and  was  thus  induced  to 
who  marry  agree  to  take  each  other  recede  from  such  doctrine.  See 
as  they  are."  But  subsequently  dissenting  opinion  of  Rodman,  J., 
this  doctrine  was  abandoned  and  in  Long  v.  Long,  77  N.  C.  304.  See 
marriage  annulled  where  a  woman,  criticism  of  Scroggins  v.  Scrog- 
after  the  birth  of  her  mulatto  gins  in  Baker  v.  Baker,  13  Cal.  87, 
chUd,  represented  that  the  child  and  Sissung  v.  Sissung,  65  Mich. 
was  white  and  the  result  of  their  168,  31  N.  W.  770. 
intercourse,  when  in  fact  it  was 


574  FEATJD,    EEEOB   ANH   DUKESS.  [§  608, 

been  guilty  of  fornication,  a  child"  of  foreign  blood,  or  by 
attempting  by  a  decree  to  coerce  him  to  live  with  his  be- 
trayer, when  there  is  no  union  in  fact,  and  such  decree  will 
be  a  vain  record  except  as  an  "  instrument  of  undeservetl 
and  perpetual  torture."  If  such  a  marriage  cannot  be  an- 
nulled, then  the  only  safe  course  for  such  a  man  is  to  refuse 
to  marry  the  woman,  or,  if  he  discovers  the  truth  after  mar- 
riage, to  desert  her  and  allow  her  to  obtain  a  divorce. 

§  608.  False  representation  as  to  paternity. —  Suppose 
that  a  woman,  pregnant  by  another,  induces  a  man,  who  has 
had  intercourse  with  her  while  she  is  pregnant,  to  believe 
that  she  is  pregnant  from  such  intercourse,  and  she  insists 
upon  a  prompt  marriage  to  save  her  reputation.  The  man, 
believing  the  woman  to  be  virtuous  and  the  unborn  child  to 
be  his  own,  marries  her  with  the  worthy  motives  of  saving 
her  reputation  and  making  the  best  amendment  possible  for 
this  supposed  seduction.  Can  he  have  the  marriage  annulled 
for  this  fraud  when  he  proves  conclusively  that  the  woman 
was  unchaste  before  he  met  her  ?  It  has  been  decided  that 
siuch  marriage  is  not  voidable  because  he  was  put  upon  his 
guard  by  participating  with  her  in  crime,  and  should  have 
made  careful  inquiry  by  consulting  a  physician  as  to  her 
condition.'  In  Michigan  it  was  said  concerning  a  case  pre- 
senting the  same  question,  that  "  the  fraud  in  this  case  is  a 
more  potent  reason  for  a  nullification  of  the  marriage  than 
it  would  be  in  a  case  where  the  man  was  ignorant  of  the 
pregnancy.  In  such  a  case  the  woman  makes  no  represen- 
tation, except  as  the  concealment  of  her  condition  may  tend 
in  that  direction ;  but  here  a  false  statement  is  made,  and 
an  appeal  based  thereon  to  the  better  and  kindlier  nature  of 
the  man,  who,  moved  thereby,  undertakes  to  make  restitu- 
tion for  his  supposed  wrong,  and,  in  so  doing,  falls  easily 
into  the  trap  laid  for  him  by  a  wanton  and  designing  woman. 
He  is  certainly  entitled  to  a  release."  ^    "  The  essence  of  the 

iStatesD.  States,37N.  J.  Eq.  195;    31   N.  W.  770.     In  this  case  the 

Foss  V.  Foss,  94  Mass.  27.  lower  court  oveiTuled  a  demurrer 

^Sissung.v.  Sissung,  65  Mich.  168,    to  plaintifiE's  petition,  and  the  rul- 


§  609.]  FEAUDj  EBEOE  AND  DUKESS.  675> 

irikrriage  contract  is  wanting  when  the  woman,  at  the  time 
of  its  consummation,  is  bearing  in  her  womb,  knowingly,  the 
fruit  of  her  Ulicit  intercourse  with  a  stranger ;  and  the  re- 
sult is  the  same  whether  the  husband  is  ignorant  of  her 
pregnancy,  and  believes  her  chaste,  or  is  cognizant  of  her 
condition,  but  has  been  led  to  believe  the  child  is  his." ' 

§  609.  False  representation  as  to  paternity  —  Child  born 
before  marriage. —  After  the  birth  of  the  child  a  different 
case  is  presented.  Here  the  husband  has  notice,  before  he 
marries,  of  two  facts  that  should  put  him  upon  his  guard : 
the  date  of  the  birth,  from  which  the  period  of  gestation  may 
be  calculated,  and  also  the  color  and  appearance  of  the  child, 
which  may  often  disclose  its  paternity.  If  a  man,  with  no- 
tice of  these  important  facts,  chooses  to  rely  upon  the  rep- 
resentations of  the  woman  that  he  is  the  father  of  the  child, 
it  would  seem  that  he  should  be  bound  by  his  negligence  in 
not  making  fuU  inquiry.  But  the  law  of  notice  is  not  ap- 
plied to  such  cases.  Here  is  a  deliberate  fraud  by  the  woman, 
and  a  mistake  of  fact  as  well  as  a  reliance  upon  the  misrep- 
resentations. "Where  a  white  woman,  after  illicit  intercourse 
with  a  white  man,  gave  birth  to  a  mulatto  child,  yet  per- 
suaded the  man  that  he  was  the  father  of  the  child,  and  thus 
brought  about  k  marriage  by  her  false  representations,  the 

ing  was  affirmed  by  an  equal  di-  bearing  a  child  to  her  husband  at 
-vision  of  the  court.  Although  such  the  time  of  her  marriage  .  .  . 
division  prevents  any  direct  de-  is  unable  to  perform  the  contract 
cision  of  the  whole  court,  the  rea-  into  which  she  enters;  and  any 
sons  assigned  in  the  opinion  are  representation  which  leads  to  the 
worthy  of 'examination.  belief  that  she  is  in  a  marriageable 
I  Id.  And  in  this  connection  the  condition  is  a  false  statement  of  a 
court  cites  the  following  from  the  fact,  material  to  this  contract,  and, 
opinion  of  Bigelow,  C.  J.,  in  Reyn-  on  well  settled  principles,  affords 
oldsu  Reynolds,  85  Mass.  605:  "A  good  ground  for  setting  it  aside, 
husband  has  a  right  to  require  that  and  deoLiring  the  marriage  void." 
his  wife  shall  not  bear  to  his  bed  It  will  be  observed  that  this  Ian- 
aliens  to  his  blood  and  lineage,  guage  was  used  with  reference  to 
This  is  implied  in  the  very  nature  concealed  pregnancy,  but  the  Mich- 
of  the  contract  of  marriage.  There-  igan  court  considered  it  applicable 
fore  a  woman  who  is  incapable  of  to  the  case  before  it. 


576 


[§  610. 


husband,  upon  afterwards  discovering  the  fraud,  Avas  allowed 
a  decree  of  annulment.'' 

§  610.  Pretended  pregnancy. —  If  the  parties  have  had 
illicit  intercourse,  the  marriage  will  not  be  annulled  because 
the  woman  falsely  represents  that  she  is  pregnant  and  thus 
induces  the  man  to  marry  her  to  prevent  disgrace.^  In  such  ■ 
cases  the  pregnancy  is  always  a  doubtful  matter,  and  if  it 
does  not  exist  it  is  still  a  matter  of  some  uncertainty  that  a 
child  will  be  born.  The  husband  having  placed  himself  in 
such  a  position  that  he  cannot  tell  whether  the  woman  is  or 
not  pregnant,  and  is  thus  in  her  power,  is  still  free  to  pursue 
his  own  course.  He  may  dishonor  the  woman  by  refusing 
to  marry  her,  and,  if  a  child  is  born,  be  liable  to  bastardy 
proceedings.     Or  he  may  choose  to  marry  her  from  such 


•  Barden  v.  Barden,  3  Devereaux 
(N.  C),  548  (1832).  And  see,  also, 
similar  case,  Scott  v.  Schufeldt,  5 
Paige,  43  (1835),  where  one  object 
of  the  marriage  was  to  avoid  pend- 
ing bastardy  proceedings.  The 
majority  of  the  court  were  of  the 
opinion  "that  when  a  man  is  act- 
ing in  good  faith,  and  marries  with 
the  design  on  his  part  to  repair  the 
injury  done  to  a  female,  whom  he 
supposes  to  be  the  reluctant  victim 
of  his  own  solicitations,  which  a 
strong  and  exclusive  affection  for 
him  made  her  unable  finally  to  re- 
sist, advantage  shall  not  be  taken 
of  his  confidence  and  honorable 
principles  of  action  to  draw  him 
by  false  tokens  and  artful  devices 
of  this  sort.  .  .  But  by  await- 
ing tliat  event  (birth),  and  promptly 
following  it  up  by  consummating 
the  contract,  while  the  child  was 
very  young,  it  is  but  reasonable  to 
conclude  that  the  birth  of  the  child, 
and  the  belief  that  it  was  his  own, 
constituted  the  prevailing,  perhaps 


the  chief,  motive  and  inducement 
for  this  action.  The  obstacle  with 
me  on  this  part  of  the  case  is,  that 
the  color  of  the  child  is  an  object  of 
the  senses;  and  that  it  can  hardly 
be  supposed  that  a  man  would 
marry  a  woman  because  he  be- 
lieved her  to  be  the  mother  of  his 
child,  without  being  drawn,  even 
by  curiosity,  not  to  say  instinctive 
affection,  to  see  the  child  itself. 
But  it  may  be  that  in  so  young  an 
infant,  whose  mother  was  white, 
it  might  not  bein  the  power  of  an 
ordinary  man,  from  inspection  of 
the  face  and  other  uncovere'd  parts ; 
of  the  body,  to  discover  the  tinge, 
although  it  were  so  deep  as  to  lead 
to  the  belief  now  that  it  is  the  issue 
of  a  father  of  full  African  blood.'' 
This  case  was  then  reversed  and 
remanded  for  proofs. 

2  Todd  V.  Todd,  149  Pa.  60,  24  A. 
128;  Tait  v.  Tait,  3  Miscellaneous 
E.  (N.  Y.)  218;  Hoffman  v.  Hoff- 
man, 30  Pa.  St.  417;  Fairchild  v. 
Fairchild,  43  N.  J.  Eq.  478. 


§  611.]  FEAUD,  EEEOE  AND  DUEESS.  577 

excellent  motives  as  to  recompense  the  seduction  as  far  as 
possible  to  shield  her  honor  as  well  as  his  own,  and  to  as- 
sume in  advance  liabilities  which  he  believes  are  inevitable. 
When  he  marries  under  such  circumstances,  he  voluntarily 
assumes  a  known  risk  that  the  pregnancy  exists.  He  takes 
the  woman  for  better  or  worse,  and  should  not  be  released 
because  no  pregnancy  existed  and  the  unfortunate  affair  has 
resulted  better  than  he  has  calculated.  This  is  not  a  case  of 
Tinmixed  fraud,  because  the  man  relies  not  alone  on  her  rep- 
resentations, but  in  part  upon  the  knowledge  of  his  guilty 
•conduct.  He  does  not  assume  unknown  habilities  and  condi- 
tions, as. is  the  case  where  a  man  marries  a  woman  whom  he 
believes  is  chaste,  when  in  fact  she  is  concealing  the  fact 
that  she  is  pregnant  by  another. 

Where  the  marriage  is  thus  voluntarily  entered  into  Avith 
knowledge  of  the  risks  assumed,  the  question  of  consumma- 
tion is  immaterial,  although  if  it  existed  it  would  be  an  ad- 
-ditional  reason  for  denying  a  decree. 

§  611.  Conspiracy  to  bring  about  marriage.— It  is  a 
general  rule  that  no  conspiracy  of  third  parties  is  adequate 
to  render  a  marriage  voidable  unless  the  plaintiff  was  in- 
•capable  of  consent  at  the  time,  or  did  not,  for  some  reason, 
give  complete  consent.  If  the  marriage  is  the  voluntary  act 
of  both  parties,  and  neither  of  them  is  aware  of  fraud,  the 
marriage  is  valid  although  it  is  brought  about  by  the  deceit- 
ful practices  and  fraudulent  representations  of  third  persons. 
If  the  conspiracy  was  instigated  by  one  of  the  parties,  or  if 
the  conspiracy  of  others  is  unknown  until  about  the  time  of 
the  marriage,  and  upon  learning  of  the  fraud  he  avails  hun- 
self  of  it,  the  marriage  would  be  voidable  at  the  option  of 
the  innocent  party  if  the  fraud  was  otherwise  sufficient. 
These  general  doctrines  are  subject  to  the  control  of  the  cir- 
cumstances peculiar  to  each  case ;  but  it  is,  perhaps,  safe  to 
say  that  in  other  cases  the  conspiracy  of  third  parties  Avill 
not  bind  an  innocent  party  to  a  bad  marriage.  If  third 
parties  combine,  as  in  the  case  supposed  by  Lord  Stowell, 
•"  to  intoxicate  another  and  marrying  him  in  that  perverted 
37 


578  FKAUD,  EEEOE  AND  DUEESS.  [§  611, 

state  of  mind,  this  court  would  not  hesitate  to  annul  a  mar- 
riage on  clear  proof  of  such  a  cause  connected  with  such  an 
effect.  ISTot  many  other  cases  occur  to  me  in  which  the  co- 
operation of  other  persons  to  produce  a  marriage  can  be  so 
considered  if  the  party  was  not  in  a  state  of  disability,  nat- 
ural or  artificial,  which  created  a  want  of  reason  or  volition 
amounting  to  an  incapacity  to  consent."  ^ 

"Where  marriages  have  been  annulled  on  account  of  fraud 
and  conspiracy,  the  weaker  party  is  generally  imposed  upon 
on  account  of  youth  or  some  mental  incapacity  which  pre- 
vents intelligent  cohsent.  As  where  the  marriage  is  de- 
clared void  on  account  of  fraud  practiced  by  the  trustee  and 
solicitor  of  a  party  of  weak  mind ;  ^  or  where  a  girl  of  ten- 
der years  is  entrapped  into  a  marriage  to  which  she  gave 
apparent  but  feigned  consent ; '  or  where  commissioners  of 
the  poor,  for  the  purpose  of  effecting  a  change  of  the  settle- 
ment of  a  woman  "  feeble  both  in  body  and  in  mind,"  bring 
about  a  marriage  by  threatening  to  withdraw  all  her  sup- 
port unless  she  marries  the  man  whom  they  have  hired  for 
that  purpose ;  *  or  where  the  relatives  of  an  insane  woman 
concealed  her  condition  from  the  man,  and  by  fraudulent 
devices  and  practices  brought  about  the  marriage.'  The 
consent  of  one  of  the  parties  is  obtained  by  fraud  and  con- 
spiracy when  a  girl  is  intoxicated  and  taken  before  a  priest,, 
who  supplies  more  liquor  and  performs  the  ceremony  whil^ 
she  is  under  the  influence  of  it  and  unable  to  give  intelligent 
consent.*  Where  a  marriage  is  contemplated,  but  no  con- 
sent is  given,  it  wiU.  be  annulled  where  the  girl  is  entrapped 
and  surprised  into  a  ceremony  before  the  nature  of  it  is 

1  Sullivan  v.  Sullivan,  2  Hagg.        s  pgrlat  u.  Gojon,  Hop.  Ch.  478. 
Con.  238.    In  this  case  the  father        « Barnes  v.  Wyethe,  38  Vt.  41. 

of  the  husband,  a  minor,  brought        '  Keys  v.  Keys,  23  N.  H.  553.   The 

suit  to  annul  the  marriage  of  his  husband  was  the  plaintiff  in  this 

son  to  a  girl  of  humble  birth  on  case,  and  the   marriage  was  an- 

account  of  undue  publication  of  nulled  on  account  of  the  fraud  and 

banns  and  fraud.  not  the  insanity  of  the  wife. 

2  Portsmouth  v.  Portsmouth,  1       ^  Sloan  v.  Kane,  10  How.  Pr.  66, 
Hag.  355. 


§  612.]  FKATTD,    EEEOK   AND   DtTEESS.  579 

made  known  to  her,  and  the  circumstances  show  her  to  be 
greatly  excited  and  incapable  of  deliberate  consent,  and  the 
marriage  is  not  consummated.'  A  noted  case  of  conspiracy 
was  where  a  girl  of  fifteen  was  decoyed  from  her  boarding- 
school  by  a  false  report  that  her  mother  was  dangerously 
ill  and  had  sent  for  her.  The  conspirators  having  thus  ob- 
tained possession  of  her  person,  induced  her  to  marry  one 
of  them,  representing  that  her  father  had  fled  in  great  dis- 
tress to  evade  arrest  on  account  of  bankruptcy,  and  reading 
a  pretended  letter  from  him  asking  her  to  save  the  estate  by 
marrying  this  person.  Before  the  marriage  was  consum- 
mated she  was  discovered  by  her  friends.  This  marriage 
Avas  declared  void  by  act  of  parliament.^ 

§  612.  False  representations  as  to  wealth  and  char- 
acter.—  After  consummatijan,  a  marriage  will  not  be  an- 
nulled on  account  of  fraud  of  one  of  the  parties  in  repre- 
senting himself  to  be  what  he  is  not.'  He  may  represent 
that  he  has  wealth,  or  is  of  good  character,  and  if  the  inno- 
cent party  rely  upon  such  representations  no  relief  wiU  be 
granted  if  the  marriage  is  consummated  before  the  fraud  is. 
discovered.  Eelief  is  denied  in  such  cases  for  the  reason 
that  the  remedy  for  the  evils  growing  out  of  such  mar- 
riages is  not  in  f acihty  of  divorce ;  and  if  frequently  innocent 
parties  are  freed  from  such  marriages,  it  would  result  as  an 
inducement  for  their  frequent  occurrence,  and  thus  tend  to 
disturb  the  sanctity  with  which  the  marriage  bond  should 
be  regarded.*  This  is  a  frequent  reason  for  denying  rehef 
in  the  most  urgent  cases  of  matrimonial  wrongs,  and  does 
not  appear  very  satisfactory  to  the  writer.  A  court  of 
equity  might  hastily  relieve  its  docket  of  all  cases  of  fraud  ' 

1  Cameron  v.  Malcolm,  Mor.  Diet.  The  conspirators  were  afterward 
13586.  convicted.     Rex  v.  Wakeiield,  BO' 

2  Turner's    Nullity  of   Marriage  Annual  Eeg.   316,  1  Deuc.   Grim. 
Bill,  17  Hans.  Pari.  Deb.  1133.   The  Law,  4 

application  was  not  made  in  the  s  Klein  v.  Wolfsohn,  1  Ab.  N.  Cas- 

ecclesiastical  courts  because  of  the  134. 

difficulty  of  proof,  her  testimony  <  Id. 
being  inadmissible  in  that  court. 


580  FBATJD,    EEEOE   Als^D   DITBESS.  [§  612. 

arising  from  misrepresentation  by  a  summary  and  harsh 
ruling  that  parties  must  exercise  caution  before  entering  into 
ordinary  contracts,  and  that  to  relieve  from  a  fraudulent 
contract  would  tend  to  disturb  the  contracts  of  the  whole 
business  world.  Love  is  blind,  and  no  law  can  prevent  in- 
discreet marriages  while  deception  and  credulity  exist.  The 
unwary,  who  complain  in  these  cases,  are  always  ignorant 
of  the  law,  and  do  not  calculate  upon  any  of  the  conse- 
quences of  a  hasty  marriage,  much  less  the  legal  remedies 
to  which  resort  may  be  had.  This  reason  has,  therefore,  no 
application  to  ill-considered  marriages. 

Another  reason  is  that  misrepresentation  as  to  personal 
qualities  is  not  a  fraud  or  deception  as  to  a  material  fact 
essential  to  the  marriage  contract.  Why  such  fraud  is  im- 
material is  not  easily  explained.  "We  have,  however,  a 
dictum  that  "the  only  general  rule  which  can  be  safely 
stated  is,  that  to  render  a  contract  void  on  the  ground  of 
fraud  there  must  be  a  fraudulent  misrepresentation  or  con- 
cealment of  some  material  fact.  What  amounts  to  such 
misrepresentation  or  concealment,  and  whether  the  fact  mis- 
stated or  withheld  is  material,  are  questions  to  be  deci(Jed 
according  to  the  circumstances  developed  in  each  case  as  it 
arises  for  judicial  determination.  .  .  .  Any  error  or 
misapprehension  as  to  personal  traits  or  attributes,  or  con- 
cerning the  position  or  circumstances  in  life  of  a  party,  is 
deemed  wholly  immaterial,  and  furnishes  no  good  cause  for 
divorce.  Therefore  no  misconception  as  to  the  character, 
fortune,  health  or  temper,  however  brought  about,  will  sup- 
port an  allegation  of  iraud  on  which  a  dissolution  of  the 
marriage  contract,  when  once  executed,  can  be  obtained  in 
a  court  of  justice.  These  are  accidental  qualities,  which 
do  not  constitute  the  essential  elements  on  which  the  mar- 
riage relation  rests.  The  law,  in  the  exercise  of  a  wise  and 
sound  policy,  seeks  to  render  the  contract  of  marriage,  when 
once  executed,  as  far  as  possible  indissoluble.  The  great 
object  of  marriage  in  a  civilized  and  Christian  community 
is  to  secure  the  existence  and  permanence  of  the  family  re- 


§  612.]  FEAtlD,    EEEOK   AND   DUEESS.  681 

lation  and  to  insure  the  legitimacy  of  offspring.  It  would 
tend  to  defeat  this  object  if  error  or  disappointment  in  per- 
sonal qualities  or  character  was  allowed  to  be  the  basis  of 
proceedings  on  which  to  found  a  dissolution  of  the  marriage 
tie."  1 

Before  the  consummation  of  the  marriage  these  reasons 
do  not  apply.  The  question  is,  Shall  a  mere  ceremony  of 
marriage  be  set  aside  when  the  fraud  is  discovered  before  a 
real  union  of  the  parties  has  in  fact  taken  place  ?  Here  is 
a  mere  status,  existing  on  the  records  only,  without  the  in- 
ception of  the  family  relation,  and  the  annulment  of  which 
cannot  disturb  titles  nor  mislead  creditors.  Here  no  un- 
born children  will  "  cry  out  from  the  mother's  womb,  de- 
manding that  they  may  nbt  be  bastardized,  lose  a  father  and 
know  only  a  disgraced  mother."  Shall  the  court  relieve  an 
innocent  party  from  a  marriage  existing  in  name  only,  or 
shall  it  declare  the  marriage  valid  by  a  decree  which  is  futile 
in  every  way  except  to  torture  an  innocent  party,  deprive 
him  of  his  property  and  prevent  his  happy  marriage  to  an- 
other? This  question  was  determined  in  Iowa  upon  the 
following  facts :  An  entire  stranger  in  the  community  called 
upon  a  widow,  representing  that  her  friends  had  recom- 
mended her  as  a  suitable  person  for  a  wife ;  and  that  he  was 
a  man  of  good  character  and  high  standing  in  society,  and 
had  many  respectable  friends  and  connections,  and  was  able 
and  willing  to  give  any  references  she  might  desire.  He 
came  again,  and  allayed  any  fears  she  might  have  concern- 
ing his  character;  and  represented  that  he  had  plenty  of 
means,  and  was  able  to  maintain  her  and  her  child.  After 
a  short  acquaintance  he  procured  a  marriage  license,  and 
accompanied  her  to  her  mother's  house;  a  justice  of  the 
peace  was  sent  for  and  the  marriage  ceremony  performed. 
After  she  escaped  from  his  control  and  discovered  that  he 
was  a  convict  just  released  from  serving  his  third  term  in 

1  Reynolds  v.  Reynolds,  85  Mass.  terial  fact  that  the  concealment  of 
605.  Here  the  point  adjudicated  it  was  a  fraud  vitiating  the  mar- 
was  that  pregnancy  was  such  a  ma-    riage  contract. 


0S2  FEAUD,  EEEOE  AND  DUEESS.  [§  612. 

the  penitentiary,  she  refused  him  admittance  to  her  house, 
a,nd  never  lived  or  cohabited  vrith  him.  The  court  refused 
to  annul  such  marriage,  doubting  the  sound  public  policy  of 
doing  so,  and  said :  "  Mere  false  representations  by  one  of 
the  parties  as  to  his  fortune,  character  and  social  standing 
will  not  avoid  the  marriage.  If  they  should  be  so  held, 
where  would  courts  fix  the  limits  of  invalid  marriages  ? " ' 
The  court  overlooked  the  fact  that  no  consummation  took 
place.  The  injustice  and  hardship  which  this  imposed  was 
apparent  to  the  court,  for  it  was  admitted  that,  but  for  the 
violation  of  rules  and  doctrines,  it  was  desirable  to  relieve 
plaintiff  from  the  consequences  of  her  folly .^ 

This  case  has  not  been  approved.'  In  a  recent  case  in 
]Srew  York  it  was  held  that  a  marriage  would  be  annulled 
where  the  consent  of  a  yoi^ng  woman  was  obtained  by  a 
representation  by  defendant  that  he  was  honest  and  in- 
dustrious, wlien  in  fact  he  was  a  professional  thief;  and  was 
at  the  time  of  the  suit  in  prison  for  crime.*  The  doctrine 
announced  in  this  case  is  that  a  misrepresentation  as  to 
character  is  a  material  fraud,  if  in  fact  it  was  sufficient  to 
induce  the  consent  of  the  weaker  party,  and  whether  the 
misrepresentation  had  this  effect  or  not  is  a  question  of  fact. 
It  is  believed  that  this  doctrine  is  sound,  and  is  in  conformity 
with  well-established  principles  of  equity.  A  husband  sought 
to  have  his  marriage  annulled  because  he  discovered,  some 

1  Wier  V.  Still,  31  la.  107  (1870).  not  directed  to  the  element  of  non- 

2  Mr.  Bishop  criticises  this  case  consummation,  and  the  case  went 
as  one  "in  which  the  distinction  against  her  on  the  ordinary  rea- 
between  marriage  consummated  soning,  as  applied  to  marriage  con- 
and  not  consummated  would  have  summated.  The  books  of  reports, 
been  important,  but  it  was  not  sug-  as  to  other  subjects,  are  full  of 
gested  by  counsel,  and  it  did  not  cases  like  this,  which  are  regarded 
occur  to  the  unaided  thoughts  of  not  otherwise  than  as  if  the  un- 
the  judges.  Thus,  before  the  Iowa  thought  of  fact  did  not  exist."  1 
court,  there  was  a  case  of  gross  Bishop,  Mar.,  Sep.  &  Div.,  §  463. 
fraud,  such  as  would  have  annulled  ^See  criticism  in  Bigelow  on 
any  other  contract,  wherein  the  Fraud,  p.  93. 

woman  took  alarm  before  copula.  *  Keyes  v.  Keyes,  6  Misc.  355,  26 
But  the  attention  of  the  court  was    N.  Y.  Supp.  910. 


%  613.]  FSAXTD,   EEEOE  AND   DUEESS.  583 

^tx  years  after  the  marriage,  that  his  wife  was  a  klepto- 
maniac, and  this  fact  had  been  known  and  concealed  from 
him  by  herself  and  relatives ;  and  that  the  concealment  of 
such  fact  was  such  a  fraud  as  would  render  the  marriage 
voidable.  The  court  found  the  facts  did  not  warrant  relief, 
as  the  fact  concealed  was  a  mere  personal  trait  and  not  an 
essential  incapacity  to  enter  the  marriage  relation.^ 

It  is  held  that  where  a  woman  has  made  careful  inquiry 
before  marriage  concerning  the  character  of  her  husband 
and  was  assured  of  his  good  character  by  himself  and  others, 
she  may  have  the  marriage  annulled  for  fraud,  on  discover- 
ing that  he  was,  at  the  time  of  the  marriage,  a  criminal 
and  gambler.^  The  parties  had  lived  together  for  several 
months  before  the  fraud  was  discovered,  but  the  marriage 
had  resulted  in  the  birth  of  a  child  or  the  result  might 
have  been  otherwise.  The  early  decisions  seem  to  have  held 
strictly  to  the  rule  that  a  party  must  make  careful  inquiry 
before  entering  into  the  marriage  relation,  and  that  no  fraud 
discovered  after  marriage  would  be  sufficient  cause  for  an- 
nulment if  the  marriage  had  been  consummated ;  but  the 
tendency  of  the  recent  decisions  is  towards  the  more  equi- 
table rule  that  in  marriage,  as  in  contracts,  the  conduct  of  the 
defrauded  party  before  discovery  of  the  fraud  wiU  not  con- 
stitute an  affirmance  by  waiver  of  the  fraud. 

§  613.  Fraud  in  obtaining  license  —  False  ceremony. — 
It  is  held  that  where  a  marriage  license  is  procured  by 
falsely  swearing  that  the  parties  are  of  age,  when  in  fact 
one  is  not,  or  obtaining  a  license  by  forgery,  is  a  fraud  suf- 
ficient to  vitiate  the  marriage.'  But  aside  from  the  fraud 
such  cases  may  be  based  on  other  reasons  equally  satisfac- 
tory, such  as  lack  of  consent  or  non-age.  It  may  be  weU  to 
observe  that  a  consummation  of  the  marriage  with  knowl- 
edge of  the  fraud  will  render  the  marriage  valid.  Although 
there  was  fraud  iu  procuring  the  license,  if  the  woman  was 

1  Lewis  V.  Lewis,  44  Minn.  134,  46  '  Lyndon  v.  Ljrndon,  69  111.  43 ; 
JSr.  W.  333.  Eobertson  v.  Cole,  13  Tex.  356. 

2  King  V.  Brewer,  8  Misc.  597. 


584  FRAUD,    EEEOK   AND   DUEESS.  [§§  614,  615. 

able  to  understand  the  nature  of  her  actions  and  was  not 
laboring  under  duress,  the  marriage  is  valid.^ 

Where  a  woman  was  persuaded  by  false  representations- 
to  believe  that  a  valid  license  had  been  obtained,  and  that  a 
person  was  a  regularly  ordained  minister  of  the  gospel, 
Avhen  in  fact  he  was  not,  and  the  ceremony  was  illegal,  it 
was  held  that  such  marriage  was  not  void  but  voidable ;  and 
since  the  woman  believed  the  proceedings  valid  at  the  time,, 
and  the  parties  lived  together  after  discovery  of  the  fraud,, 
the  marriage  was  now  valid.^ 

§  614.  Misrepresentation  of  age. —  Ordinarily,  one  who,, 
by  false  representations,  induces  another  to  marry,  is  es- 
topped by  his  own  fraud  and  cannot  maintain  an  action  tO' 
annul  the  marriage.  But  where  a  minor  fraudulently  rep- 
resents himself  to  be  of  the  age  of  consent  and  thus  induces 
a  woman  to  marry  him,  he  is  not  estopped  by  this  fraud  in 
an  action  to  annul  the  marriage  on  the  ground  that  he  was. 
in  fact  under  the  age  of  consent.  It  is  held  that  an  infant 
incapable,  for  want  of  age,  to  enter  into  a  valid  contract  of 
marriage  is  also  incapable  to  estop  himself  by  fraudulent 
declarations.' 

§  615.  The  evidence  of  fraud. —  Eraud  is  diificult  to  de- 
fine, and  yet  the  question  whether  deception  was  practiced' 
and  relied  upon  is  seldom  difficult  when  all  the  circumstances- 
of  each  case  are  considered.  And  in  these  cases  where  preg- 
nancy is  concealed,  or  the  woman  falsely  represents  the  pa- 
ternity of  the  child,  the  right  to  annul  the  marriage  should 
be  based  upon  the  circumstances  pecuhar  to  each  case  rather 
than  upon  rigid  rules  and  wise  maxims  generally  inapplicable 
and  often  blindly  applied.  The  motives  of  the  parties,  the  fact 
that  the  pregnancy  is  known  to  the  wife,  and  her  efforts  to- 
fasten  its  parentage  upon  the  most  responsible  and  desirable 
of  her  paramours,  the  man's  motives  in  marrying,  the  dura- 

1  Crane  v.  Crane,  1891  Probate,  2  Farley  v.  Farley,  94  Ala.  501,  10' 
367;  Field's  Mar.  Annulling  Bill,  3    So.  646. 

H.  L.  Cas.  48.  3  Eliot  v.  Eliot,  77  Wis.  634,  51 

N.  W.  81. 


§  615.]  FRATID,    EEEOE   AND   DtTEESS.  585 

tion  of  the  marriage  before  the  child  is  born,  and  the  subse- 
quent conduct  of  both  parties,  should  all  be  considered.  The 
case  should  not  be  summarily  dismissed  by  a  general  rule 
that  a  man  who  marries  a  \foman  whom  he  knows  to  be 
unchaste  is  bound  to  acknowledge  any  child  she  may  bear 
him.' 

The  deception  must  be  judged  by  its  results.  The  ques- 
tion is  not  whether  such  fraud  would  have  deceived  an  or- 
dinary man  or  woman,  but  whether,  under  the  circumstances, 
the  person  was  deceived.  A  fraud  easily  detected  by  one  of 
mature  and  discreet  mind  may  yet  have  misled  a  party  not 
possessing  ordinary  mental  powers  by  reason  of  youth,  old 
age  or  mental  weakness.^  A  girl  of  fifteen,  while  absent 
from  home,  was  induced  to  marry  a  laborer  who  had  been 
employed  on  her  father's  farm.  She  at  first  refused  because 
she  was  too  young  and  did  not  have  the  consent  of  her  par- 
ents. He  overcame  her  objections  by  the  false  representa- 
tions that  her  parents  knew  of  his  intentions  and  would  not 
care  or  object ;  that  her  father  had  promised  him  one  of  his- 
farms  and  one  of  his  daughters  if  he  would  work  for  him, 
for  four  years ;  and  that,  if  she  was  too  young,  she  might 
keep  the  ceremony  a  secret  and  continue  to  attend  school 
and  reside  with  her  parents.  These  false  representations 
related  to  the  essence  of  the  contract  and  were  held  suffi- 
cient to  uphold  a  judgment  declaring  the  marriage  contract 
void.' 

A  clear  case  must  be  made  to  overcome  the  presumption 
that  a  child  bom  during  marriage  is  legitimate.  Where  the- 
birth  occurs  so  soon  after  the  marriage  that  the  man  must 
have  had  some  notice  of  the  pregnancy,  the  presumption  is^ 

1  As  is  laid  down  in  Foss  v.  Foss,  Ferg.  Const.  Law,  37 ;  Field,  Mar- 
94  Mass.  26.  riage  Annulling  Bill,  2  H.  L.  Cas, 

2  Robertson  v.  Cole,  12  Tex.  356;    48. 

Lyndon  v.  Lyndon,  69  111.  43;  Gil-  a  Moot  v.  Moot,  37  Hun,  288,  cit- 

lett  V.  Gillett,  78  Mich.  184, 43  N.  W.  ing  Robertson  v.  Cowdry,  2  West- 

1101;   Portsmouth  v.  Portsmouth,  ern  Law  J.  191,  and  Hull  v.  Hull,  5- 

1  Hag.  Eo.  355;  Harford  v.  Morris,  Eng.  L.  &  Eq.  589. 

2  Hag.  Con.  423;  Allen  v.  Young, 


586  FBAITD,    EEEOE   AND   DUEESS.  [§  610. 

almost  conclusive  that  lie  knew  of  her  condition  and  would 
not  have  married  the  woman  unless  he  had  sinned  with  her. 
On  the  contrary,  if  the  parties  became  acquainted  but  a 
short  time  before  the  marriage,  and  had  no  opportunity  for 
intercourse  during  the  period  of  conception,  or  if  the  woman's 
reputation  was  bad,  the  presuniption  can  be  easily  overcome.' 
The  knowledge  of  the  situation  of  the  parties  constitutes  the 
ground  of  the  presumption.^  If  the  pregnancy  was  concealed 
before  marriage,  no  inference  that  the  man  is  father  of 
the  child  can  be  drawn  from  the  fact  that  he  married  the 
woman.  It  is  clear  that  the  action  to  annul  the  marriage 
•should  be  dismissed  where  it  does  not  appear  by  clear  and 
satisfactory  evidence  that  the  man  is  not  the  father  of  the 
child,  since  this  must  appear  before  the  question  of  fraud 
becomes  material.'  Where  the  parties  associated  together 
a  year  before  the  marriage,  and  were  engaged  during  a  por- 
tion of  that  time,  and  there  was  no  evidence  of  improper 
intimacy  with  other  m.en,  the  inference  that  the  husband 
is  the  father  of  the  child  born  three  and  one-half  months 
after  the  marriage  is  not  overcome  but  is  rather  strength- 
ened by  such  circumstances.* 

§616.  Error  or  mistake. —  If  a  party  is  deceived  and 
marries  a  person  believing  that  person  to  be  another,  the 
marriage  is  void.*     It  is  improbable  that  such  cases  will 

1  For  method,  of  proving  the  non-  reality  the  girl  he  married  was 
access,  see  Page  v.  Denison,  1  Grant  without  fortune.  He  repudiated 
<Pa.),  377;  Dennisonw  Page,  29  Pa.  this  marriage  and  married  the 
420 ;  StegaU  v.  Stegall,  2  Brock.  256 ;  Duchess  of  Cleveland.  Mr.  Bishop 
S.  i;.  Herman,  2  Ire.  502.  says  of  this  case:  "  It  would  be  fair 

2  Baker  v.  Baker,  13  CaL  87.  to  say  that  though  Fielding  did 
'  Long  V.  Long,  77  N.  C.  304  not  get  possession  of  the  particular 
*  McCulloch  V.  McCulloch,  69  Tex.    rich  widow  whom  he  was  seeking, 

«82,  7  S.  W.  593.  he  did  obtain  the  very  flesh  and 
5  See  Fielding's  Case,  Burke's  blood  he  courted  and  over  which 
Celebrated  Trials,  63,  where  a  sec-  he  poured  his  protestations  and 
ond  marriage  was  annixlled.  Field-  sighs.  And  as  he  was  himself 
ing  had  married  a  woman  by  mis-  playing  a  game  of  fraud,  pretend- 
take,  supposing  he  had  won  the  ing  to  have  his  heart  on  the  person, 
hand  of  a  rich  widow,  while  in  while  it  was  really  on  her  supposed 


§  617.]  FEAUD,    EI4E0E    AND    DUEESS.  587 

arise  without  sufiElcient  fraud  to  render  the  marriage  void- 
able. The  error  or  mistake  of  fact  must  be  in  regard  to 
some  capacity  for  marriage  and  essential  to  it.  Since  mis- 
representations as  to  wealth,  chastity,  health,  character  and 
other  personal  qualities  wiU  not  render  the  marriage  void- 
able, a  mistake  of  fact  as  to  such  qualities  will  not.  On 
familiar  principles  a  mistake  of  the  law  will  not  entitle  the 
party  to  relief,  since  all  are  conclusively  presumed  to  know 
it.^  But  where  a  party  is  entrapped  into  a  marriage  cere- 
mony valid  in  form,  under  the  belief  that  it  is  to  be  a  mock 
marriage  and  not  to  be  consummated  until  a  public  cere- 
mony is  performed,  and  the  parties  do  not  assume  the  mar- 
ital relation,  the  marriage  is  void.  Here  the  ignorance  of 
the  law  is  not  unmixed  with  fraud  and  mistake  of  fact.^ 

§  617.  Duress  —  In  general. —  This  cause  for  divorce  or 
nullity  is  similar  to  fraud,  in  that  the  consent  of  one  of  the 
parties  is  not  fairly  and  freely  obtained.  Duress  affecting 
the  validity  of  a  marriage  is  the  unlawful  constraint  or 
threatened  danger  which  deprives  the  party  of  the  exercise 
of  his  free  wiU  and  extorts  a  verbal  consent  to  the  marriage. 
The  duress  need  not  be  the  fear  of  bodily  harm,  of  violence 
or  of  death.  The  fear  of  loss  of  property,  public  disgrace 
or  of  imprisonment  is  sufficient  if  the  wiU  of  the  party  is 
overcome  by  such  fear,  and  he  feels  compelled  to  enter 
into  the  ceremony  as  the  only  means  of  escaping  from  the 
persons  who  unlawfully  restrain  or  threaten  him.  Duress 
may  consist  of  threats  alone  without  any  efforts  to  execute 
them.  Thus,  where  the  relatives  of  a  woman  threaten  to 
murder  a  man. unless  he  will  marry  her,  his  consent,  if  ob- 
tained while  in  such  fear,  is  not  the  free  consent  necessary 
to  a  valid  marriage.  But  where  such  threats  do  not  disturb 
him  and  he  has  an  opportunity  to  escape  if  he  so  desires, 

and  other  motives  were  probable,  the  marriage  is  vaM.' 

\ 

wealth,  he  was  hardly  in  a  posi-       i  Cooper  v.  Crane,  1891  Probate, 
tion  to  complain  when  outwitted    367;  Clark  v.  Field,  13  Vt.  460. 
therein."   See,  also,  Farquharson  v.       3  dark  v.  Field,  13  Vt.  460. 
Parqnharson,  3  Ad.  Ec.  383.  'Todd  v.  Todd,  149  Pa.  60,  34  A- 

138. 


588  FEATXD,  EEEOE  AOT5   DTIEESS.  [§  618, 

Since  threats  of  a  lawful  prosecution  may  be  duress  which 
Avill  avoid  a  contract  obtained  thereby,'  it  may  be  a  disputed 
question  whether  a  criminal  prosecution  may  be  threatened. 
In  reason  it  would  seem  that  a  consent  is  not  obtained  under 
duress  where  the  party  yields  in  consideration  of  all  the.con- 
sequences  which  usually  follow  a  refusal  to  marry  a  seduced 
woman.  And  if  this  is  true,  any  threat  not  beyond  the  plain 
truth  may  be  lawfully  made.  Expostulations  of  the  wom- 
an's friends  and  their  refusal  to  any  delay,  threats  of  public 
disgrace  to  both  the  parties  of  the  marriage,  and  the  proba- 
bility of  lynching  by  others  in  the  community,  have  been 
considered  insufficient  duress,  where  the  man  procures  the 
license  and  voluntarily  goes  to  the  house  where  the  ceremony'- 
is  performed.^ 

§618.  What  duress  is  sufficient. —  Like  fraud  and  de- 
ception, duress  is  to  be  judged  by  its  effect  upon  the  com- 
plainant under  the  circumstances.  It  must  be  sufficient  to 
overcome  the  will  and  prevent  voluntary  action.  And  it 
need  not  have  been  sufficient  to  have  moved  a  person  of  or- 
dinary courage.  To  rule  that  the  constraint  would  have 
been  insufficient  to  have  moved  a  person  of  ordinary  firm- 
ness is  to  impose  penalties  upon  the  weak  because  they  are 
so,  and  to  ignore  common  principles  of  equity.  A  recent 
English  case  denied  the  doctrine  that,  to  avoid  a  contract 
on  account  of  duress,  the  fear  must  be  such  as  would  impel 
a  person  of  ordinary  courage  and  resolution  to  yield  to  it. 
"  I  do  not  think  it  is  an  accurate  statement  of  the  law,"  said 
the  court.  "  Whenever  from  natural  weakness  of  intellect  or 
from  fear  — whether  reasonably  entertained  or  not  —  either 
party  is  actually  in  a  state  of  mental  incompetence  to  resist 
pressure  improperly  brought  to  bear,  there  is  no  more  con- 
sent than  in  the  case  of  a  person  of  stronger  intellect  and 
more  robust  courage  yielding  to  a  more  serious  danger." ' 
This  sound  doctrine  is  now  generally  accepted.  For  instance, 

1  Haynes  v.  Rudd,  30  Hun,  239.  3  Scott  v.  Seabright,  12  P.  D.  21 

2Honnett  v.  Honnett,  83    Ark. 
156. 


§  618.]  FEAUD,  EKEOE  AUD   DUEESS.  581) 

a  designing  woman  who  is  pregnant  and  desirous  of  a  speedj 
marriage  to  avoid  giving  birth  to  a  child  that  would  other- 
Avise  appear  illegitimate,  selects  an  innocent  boy  of  sixteen 
or  eighteen  years,  and  by  threats  and  a  bastardy  proceeding, 
and  some  assistance  from  the  officers,  induces  him  to  marry 
her.  Others  knowing  themselves  innocent  of  any  connection 
with  her  would  have  hesitated  to  marry  a  woman  of  the 
town,  and  would  have  disregarded  the  threats  and  impor- 
tunities, and  awaited  vindication  on  the  trial  of  the  case. 
Here  the  youth  and  inexperience  of  the  boy  ^re  to  be  con- 
sidered, and  the  marriage  will  be  declared  void  if  he  con- 
sented under  such  duress.^ 

Marriage  is  a  status  of  great  public  importance.  It  is  un- 
like an  ordinary  contract  obtained  by  duress,  in  that  pecun- 
iary loss  may  result  from  the  enforcement  of  the  contract, 
but  vastly  greater  evils  may  flow  from  a  decree  declaring  a 
marriage  valid  when  there  has  been  some  constraint  and 
force  employed.  It  may  force  the  man  to  maintain  a  woman 
for  whom  he  has  the  most  profound  contempt  and  hatred, 
and  may  compel  a  disgraced  woman  to  wear  the  name  of 
one  for  whom  she  entertains  like  sentiments.  A  suit  to  annul 
a  marriage  obtained  by  duress  is  always  a  suit  for  property 
rights,  unless  one  party  desires  to  be  relieved  from  the  mar- 
riage in  order  to  marry  another.  Should  a  decree  be  refused, 
the  parties  wiU  remain  apart,  their  bitterness  increased  by 
the  contest  in  court.  Other  evils  are  easily  suggested.  In 
fact,  no  good  can  follow  the  refusal  of  a  decree,  except  where 
a  child  is  born  from  ante-nuptial  pregnancy.  Evils  like  these 
suggest  the  advisability  of  a  departure  from  the  doctrine  of 
duress  as  applied  to  contracts.  It  may  be  safely  stated,  how- 
ever, that  any  duress  sufficient  to  avoid  an  ordinary  con- 
tract will  render  the  marriage  voidable.^ 

1  Shoro  V.  Shoro,  60  Vt.  268,  14  A.  fice  that  a  party  married  unwill- 
177;  Smith  u  Smith,  51  Mich.  607.  ingly;  he  must  have  been  forced 

2  Scott  V.  Seabright,  13  P.  D.  21.  by  fear  of  bodily  harm."  Citing 
In  Browne  on  Divorce  it  is  laid  Stevenson  v.  Stevenson,  7  Phila- 
down  that  "  There  must  be  actual  delphia,  386. 

<ompulsion;  hence  it  will  not  suf- 


590  FRAUD,  EEEOE  AND  DUEESS.  [f  61^. 

A  young  woman  of  some  wealth  had  assisted  a  young  maa 
by  accepting  some  bills  for  his  accommodation.  These  came 
due,  and,  he  being  unable  to  meet  them,  his  creditors  threat- 
ened her  with  bankruptcy  proceedings.  These  threats  caused 
her  such  great  anxiety  as  to  greatly  impair  her  health  and 
endanger  her  reason,  leaving  her  in  such  a  state  of  mental 
prostration  as  to  incapacitate  her  to  resist  any  restraint  or 
force.  At  a  meeting  of  her  creditors  it  was  insisted  that 
she  meet  them  on  the  next  day,  and  upon  going  to  the  place 
the  young  man  took  her  in  a  carriage  to  a  place  where  the 
marriage  ceremony  was  performed.  Here  he  told  her  the 
only  way  out  of  the  difficulty  was  to  marry  him,  and  threat- 
ened to  shoot  her  if  she  showed  any  resistance  before  the 
officer.  In  great  agitation  of  mind  she  performed  her  part 
of  the  ceremony,  but  never  consummated  the  marriage.  The 
court  held  that  she  had  not  given  her  consent  and  the  mar- 
riage was  annulled.! 

§  619.  Unlawful  arrest  or  imprisonment. —  If  the  man 
marries  to  escape  an  unlawful  custody,  fear  of  great  bodily 
harm  or  death,  and  escapes  as  soon  as  the  restraint  is  re- 
moved, and  there  is  no  consummation,  the  marriage  wUl  be 
annulled.^  An  arrest  is  considered  unlawful  in  this  sense 
when  it  is  malicious  or  without  probable  cause.'  It  is  not 
probable  that  a  marriage  will  be  annulled  for  duress  because 
the  process  was  void,  unless  the  complainant  shows  that  he 
is  innocent  of  any  illicit  intercourse,  and  the  fear  under 
which  his  consent  was  obtained  was  due  wholly  to  his  fear 
of  unlawful  arrest  or  imprisonment.  It  is  clear  that  the 
marriage  should  not  be  annulled  because  the  arrest  or  im- 
prisonment was  unlawful  for  some  technical  reason,  where  it 
is  not  denied  that  the  complainant  was  guilty  of  illicit  inter- 
course. An  arrest  without  a  warrant  is  clearly  unlawful 
in  bastardy  proceedings ;  and  where  the  party  is  induced  to 

1  Scott  V.  SeabrigM,  12  P.  D.  31.  3  Collins  v.  Collins,  3  Brewster, 
See,  also,  Ful wood's  Case,  Cro.  Car.  515;  Stevenson  v.  Stevenson,  7 
483.  Phila.  386;    Marvin  v.  Marvin,  53: 

2  Bassett  v.  Bassett,  9  Bush,  696.  Ark.  435. 


§§  620,  621.]  FEATTO,  EEKOB  AUD   DUEESS.  591 

marry  under  such  proceedings,  and  is  innocent  of  illicit  in- 
tercourse with  the  woman,  the  marriage  will  be  declared 
void.^  "When  an  unlawful  arrest  is  shown,  the  coercion  is 
not  a  necessary  and  unavoidable  conclusion.  To  prove 
duress  of  imprisonment  it  must  appear  that  the  party  acted 
involuntarily  and  under  unlawful  restraint. 

§620.  Marriage  under  arrest. —  Where  a  man  has  se- 
duced a  woman  and  he  has  been  arrested  on  a  process  for 
seduction  or  bastardy,  or  other  lawful  proceeding  arising 
out  of  the  wrong  he  has  inflicted,  his  consent  to  marry,  given 
while  under  such  arrest,  is  not  obtained  under  duress.^  He 
is  responsible  for  the  wrong  and  has  a  choice  of  two  evils : 
either  to  marry  the  woman  or  to  await  the  result  of  the 
pending  suit.  He  should  not  escape  all  liability  by  first 
taking  the  woman  as  his  wife,  having  the  prosecution  dis- 
missed and  then  have  the  marriage  annulled.  The  arrest- 
being  lawful  and  in  the  enforcement  of  legal  rights  is  not 
alone  such  duress  as  to  prevent  a  voluntary  consent  to  the- 
marriage.  "Where  a  man  supposes  a  woman  to  be  pregnant 
from  their  illicit  intercourse  and  furnishes  her  the  drugs 
necessary  to  produce  an  abortion,  and  criminal  proceedings- 
are  lawfully  instituted  against  him  with  a  view  to  punish 
him  for  the  offense,  the  restraint  which  results  from  his  own 
conduct  is  not  duress,  nor  does  it  constitute  a  ground,  either 
in  law  or  morals,  for  annulling  the  marriage.' 

§  621.  Threats  of  arrest  and  imprisonment. —  In  per- 
suading a  man  to  marry  a  woman  with  whom  he  has  had 
illicit  intercourse,  threats  of  arrest  for  bastardy  which  over- 

1  Brant  v.  Brant,  41  Leg.  Int.  54;  v.  Marvin,  53  Ark.  435, 13  S.  W.  875; 
James  v.  Smith,  reported  1  Bishop,  Lacoste  v.  Gurdroz,  16  So.  836; 
Mar.,  Sep.  &  Div.,  §  544.  Copeland  v.  Copeland  ^Va.),  31  S.  E^ 

2  Sickles  V.  Carson,  11  C.  E.  Green,  341. 

440;  Williams  v.  S.,  44  Ala.  34;  S.        3 Frost  v.  Frost,  43  N.  J.  Eq.  55, 

■u.  Davis,  79  N.  C.  603;  Johnson  u  6  A.   383.    The  fact  that  this  is- 

Johns,  44  Tex.  40;   Medrano  v.  S.  purely  a  criminal  proceeding,  in 

(Tex.),  33  S.  W.  684;  Dies  v.  Win-  no  way  looking  to  the  care  and 

nie,    7   Wend.    47;    Schwartz    v.  support  of  the  child,  is  not  ma^ 

Schwartz,  29  111.  Ap.  516;  Marvin  teriaL 


592  FRAUD,  EEEOE  AND  DUBESS.  [§  622. 

come  his  will  and  induce  him  to  marry  would  not  render 
the  marriage  void  for  duress,  since  the  threat,  if  executed, 
would  not  have  that  effect.  Threats  made  by  relatives  of 
the  parties  may  be  considered  although  the  woman  is  not  in 
any  way  a  party  to  such  threats.  "Where  a  man  is  forced  to 
marry  a  woman  with  whom  he  has  had  no  intercourse,  and 
his  consent  is  obtained  through  the  threats  of  others,  or  of 
the  officers  of  a  court  having  jurisdiction  of  the  offense,  such 
threats  will  have  the  same  effect  as  an  unlawful  arrest  or 
imprisonment. 

§  622.  Duress  from  other  parties. —  It  is  immaterial 
from  what  source  the  threats  emanate,  or  who  is  the  active 
instigator  of  the  proceedings  at  law  which  constitute  the 
duress.^  If  others  have  so  frightened  the  complainant  that 
his  consent  is  involuntarily  given — "a  yielding  of  his  lips, 
but  not  of  his  mind" — the  marriage  is  voidable  for  want  of 
consent.  If  the  woman  was  ignorant  of  the  actions  of  her 
friends  in  procuring  his  consent  by  duress,  this  would  not 
render  the  marriage  valid.  The  lack  of  consent  is  vital  in 
all  cases  of  duress,  and  therefore  the  complicity  of  the  other 
party  or  her  ignorance  of  the  duress  is  immaterial.^  Thus, 
where  the  woman  had  assented  to  a  postponement  of  the 
ceremony,  to  which  complainant  had  not  yet  consented,  and 
he  was  forced  into  the  marriage  by  the  threats  and  impor- 
tunities of  the  justice  of  the  peac^,  the  minister  and  the  of- 
ficer who  had  complainant  in  charge,  the  question  to  be 
determined  was  whether  his  consent  was  extorted,  and  if  it 
was  the  marriage  should  be  annulled  although  no  conspiracy 
is  proven.' 

1  Marks  v.  Crume  (Ky.),  29  S.  "W.  sufficient  duress  to  avoid  the  mar- 
436.  riage  when  there  has  been  no  con- 

2  See  contra,  Sherman  v.  Sher-  summation,  although  the  threats 
man,  30  N.  Y.  Supp.  414;  Schwartz  were  communicated  to  plaintiff  by 
V.  Schwartz,  29  111.  Ap.  516.  a  priest  who  undertook  to  induce 

'Sayer  v.  Sayer,  37  N.  J.  Eq.  210.  the  plaintiflE  to  marry.    Anderson 

Threats  by  relatives  of  the  woman  v.  Anderson,  74  Hun,  56,  26  N.  Y. 

that  they  would  kill  the  plaintiflE  Supp.  493. 
unless  he  married  the  defendant  is 


|§  623,  624:.]  PEATJD,  ERKOE  AND  DURESS.  593 

§623.  Eifect  of  consummation. —  Consummation  of  the 
marriage  by  the  man  is  a  complete  bar  to  his  complaint  of 
duress,  for  he  cannot  explain  his  ratification  as  being  a  part 
of  the  restraint.^  But  the  woman  is  not  barred  by  her  in- 
voluntary consummation.  All  that  is  required  of  her  is  that 
she  withdraw  from  the  man  as  soon  as  his  restraint  is  re- 
moved. With  one  or  two  exceptions  in  the  cases  noticed 
under  this  subject  the  parties  refused  to  consummate  the 
marriage,  but,  as  usual  in  cases  of  duress,  submitted  to  the 
ceremony  without  the  intent  to  enter  into  the  marriage  re- 
lation. ' 

§624.  Pleading  and  evidence. —  The  form  and  rules  of 
pleading  fraud,  error  or  duress  in  the  marriage  contract  are 
substantially  the  same  as  in  ordinary  contracts,  and  require 
no  special  notice.^  The  burden  of  proof  and  the  weight  of 
evidence  is  the  same  as  in  actions  where  the  plaintiff  is  seek- 
ing to  avoid  a  contract  on  the  ground  of  fraud  or  duress.' 

1  See  Schwartz  v.  Schwartz,  29  mation  as  a  defense  to  a  marriage 
IlL  Ap.  516.  alleged  to  be  void  on.  account  of 

2  See  forms  in  Hoffman  v.  Hoff-  duress  must  be  specifically  alleged, 
man,  30  Pa.  417;  Schiver  ■«.  Schiver,  Miller  v.  Miller,  31  S.  E.  254. 

18  W.  N.  0. 144.    For  form  of  peti-  '  Montgomery  v.  Montgomery,  3 

tion  in  case  of  duress  see  Brant  Barb.  Ch.  182;  Dawson  v.  Dawson, 

V.  Brant,  17  Phila.  655.    Consum-  18  Mich.  335. 
38 


INSANITY  AND  MENTAL  INCAPACITY. 


§  650.  In  general. 

651.  Insanity  as  a  cause  for  di- 

vorce. 

652.  Post-nuptial  insanity. 

653.  Not  mere  mental  unsound- 

ness. 

654.  The  test  of  business  ability. 

658.  Ability  to  understand  the 

nature   of   the    marriage 
contract. 

659.  To  what  extent  must  the 

nature    of   the   marriage 
contract  be  understood. 

660.  Insane  delusion. 

661.  Lucid  interval. 

663.  Hereditary  insanity. 


663.  Other  forms  of  mental  in- 

capacity. 

664.  Marriage  while  drunk. 

665.  Suicide. 

666.  Burden  of   proof  and  pre- 

sum]3tions. 

667.  Effect  of  previous  finding 

of  insanity  by  inquisition. 

668.  Conduct  at  marriage  cere- 

mony. 

669.  Deliberate  preparations  for 

marriage. 

670.  Affirming  marriage. 

671.  How  marriage  disaffirmed. 
673.  Statutes  declaring  marriage 

void  or  voidabla 


§  650.  Ill  general. — ''A  valid  contract  of  marriage  re- 
quires the  mutual  consent  of  two  persons  of  sound  mind. 
If  at  the  time  of  the  marriage  one  of  the  parties  was  men- 
tally incapable  of  giving  an  intelligent  consent  to  what  was 
done,  the  solemnization  is  a  mere  idle  ceremony,  conferring 
no  right,  and  leaving  the  status  of  both  parties  unchanged. 
The  mental  incapacity  which  prevents  a  valid  consent  niay 
arise  from  any  form  of  mental  derangement  or  weakness; 
so  this  chapter  treats  of  mental  weakness  and  drunkenness 
as  well  as  insanity.  fWhatever  the  form  of  mental  derange- 
ment, the  same  degree  of  mental  capacity  is  required,  viz. : 
the  ability  to  understand  the  nature  of  the  marriage  con- 
tract^ While  this  rule  is  easily  stated  it  is  very  difficult  to 
apply  it  to  the  facts  of  a  case.  Mental  diseases  are  not  as  ■ 
capable  of  direct  diagnosis  as  physical  diseases,  and  the  con- 
dition of  the  mind  must  be  inferred  from  words,  acts  and 


§  651.J  INSANITY   AND   MENTAL   INCAPACITY.  595 

symptoms.  THis  kind  of  evidence  is  satisfactory  only  when 
it  siiows  that  all  the  faculties  of  the  mind  are  clouded.  When 
there  is  an  insane  delusion  it  is  difficult  to  ascertain  its  effect 
upon  certain  faculties  of  the  mind.  If  the  faculties  required 
to  understand  the  contract  are  diseased,  the  party  is  then 
incapable  of  marriage,  but  might  be  able  to  make  a  will  or 
transact  some  kinds  of  business.  It  is  also  dilBcult  to  define 
the  essentials  of  the  marriage  contract  which  it  is  absolutely 
necessary  for  a  party  to  understand.  It  is  clear  that  no  per- 
son, however  learned  in  science  or  law,  can  comprehend  the 
nature  of  the  marriage  contract  in  its  fullest  sense.  So  great 
are  the  variations  of  human  character  and  conduct,  so  com- 
plex are  the  legal  rights  of  husband  and  wife,  and  so  unde- 
fined are  the  laws  of  .sex,  that  marriage,  and  the  probable 
consequences  which  flow  from  it,  may  Avell  be  classed  among 
the  uncertain  things  of  this  life.  Yet  parties  who  enter  the 
relation  must  be  capable  of  knowing  the  principal  duties  that 
will  be  required  of  them.  Some  attempt  has  been  made  to 
determine  what  these  duties  are. 

'iJChe  state  has  no  interest  in  preserving  the  marital  rela- 
tion where  one  of  the  parties  is  tainted  with  hereditary  in- 
sanity.^ It  has,  in  fact,  a  direct  interest  in  prohibiting  such 
marriages,  because  the  issue  may  be  insane  and  become  a 
charge  upon  the  state,  as  well  as  a  menace  to  public  safety. 
The  rapid  increase  of  the  number  of  those  aiflicted  with 
congenital  insanity  has  suggested  the  advisability  of  prohib- 
iting such  marriages  and  forcibly  separating  the  parties,  and 
it  seems  that  such'  measures  would  not  be  unconstitutional 
as  an  undue  exercise  of  the  police  power  of  the  state.'  There 
is  no  doubt  of  the  power  of  the  state  to  make  such  insanity 
a  cause  for  divorce  in  certain  cases,  for  this  would  permit  the 
dissolution  of  a  marriage  which  the  state  has  no  interest  in 
preserving. 

§  651.  Insanity  as  a  cause  for  divorce. —  The  Arkansas 
■statute  provides  that  a  divorce  may  be  granted  "Where 
either  party  shall,  subsequent  to  such  marriage,  have  become 

1  Tiedeman,  Lim.  Police  Power, 


596  INSANITY   AND   MENTAL  INOAPACITT.  [§  652. 

permanently  or  incurable  insa,ne."  Such  a  cause  for  divorce 
has  not  been  enacted  in  other  states.  Divorce  for  this  cause 
should  only  be  granted  at  the  discretion  of  the  court,  as  cases 
may  arise  where  it  would  be  unjust  to  dissolve  the  marriage. 
It  may  happen  that  no  children  were  born,  no  affection  ever 
existed  between  the  parties,  and  that  the  insane  person  is  a 
charge  upon  the  state  or  has  sufficient  estate  to  support 
himself.  In  such  case  it  would  be  an  act  of  humanity  to  re- 
lieve the  wife  from  a  status  the  duties  of  which  can  never 
be  performed.  But  if  the  court  has  no  discretion  in  the 
premises,  it  may  often  happen  that  heartless  and  inhuman 
husbands  and  wives  will  find  this  cause  for  divorce  a  ready 
means  to  cast  aside  all  fidelity  to  their  unfortunate  partners, 
obtain  their  property  and  marry  again. , 

The  statute  of  Washington  very  wisely  provides  that 
"  The  court  may,  in  its  discretion,  grant  a  divorce  in  case  of 
incurable  chronic  mania  or  dementia  of  either  party,  having 
existed  for  ten  years."  This  act  has  been  held  valid  and 
within  the  power  of  the  territorial  legislature  under  the  or- 
ganic act,  and  not  unconstitutional  as  being  contrary  to  pub- 
lic policy.* 

§652.  Post-nnptial  insanity.^  Evidence  that  the  party 
was  insane  immediately  after  marriage  is  admissible  to  show 
that  the  party  continued  to  be  unable  to  give  an  intelligent 
consent  to  the  marriage.  But  post-nuptial  insanity  was 
not  a  cause  for  divorce  »r  annulment  of  marriage  at  com- 
mon law,  nor  is  it  a  cause  for  divorce  unless  by  express  pro- 
vision of  the  statute.^    It  cannot  affect  the  validity  of  the 

1  Hickman  u  Hickman,  1  "Wash.  137;  Lloyd  v.  Lloyd,  66  IIL  87; 
257,  24  P.  445.  In  "Wisconsin  in-  Curryu  Curry,  1  Wilson  (Ind.),  336; 
sanity  after  marriage  was  a  canse  "Wertz  v.  Wertz,  43  la.  534;  Powell 
for  divorce  where  the  plaintiff  gave  v.  Powell,  18  Kan.  371;  Baker  v. 
security  for  support  of  defendant  Baker,  82  Ind.  146;  Parnell  u  Par- 
se long  as  the  insane  party  should  nell,  2  Hag.  Con.  169;  Hickman  v. 
live.  This  act  was  repealed  in  1882.  Hickman,  1  Wash.  Ter.  257,  24  P. 
See  Hicks  v.  Hicks,  79  Wis.  465,  445;  Pile  w.  Pile  (Ky.),  22  8.  W.  215; 
48  N.  W.  495.                "" —  Brown  v.  Westbrook,  27  Ga.  103. 

SHamaker  v.  Hamaker,  18  IIL 


§  653.]  INSANITY   AND   MENTAL   INCAPACITY.  597 

marriage,  because  tlie  parties  were  capable  of  giving  their 
consent  at  the  time  of  the  marriage.^ 

§  653.  Not  mere  mental  unsoundness. — fProof  of  mere 
mental  unsoundness  is  not  sufficient.  There  may  be,  how- 
ever, such  acute  disease  as  to  destroy  all  the  faculties  and 
powers  of  mind.  ^  At  one  time  there  was  a  doctrine  in  Eng- 
land that  if  the  mind  is  unsound  in  any  respect  the  act  of 
the  incapable  party  is  void.  This  rule  was  laid  down  in 
Waring  v.  Waring,^  where  Lord  Brougham,  in  an  elaborate 
opinion,  said :  "  If  the  mind  is  unsound  on  one  subject,  pro- 
viding that  unsoundness  is  at  all  times  existing  upon  that 
subject,  it  is  erroneous  to  suppose  such  mind  is  really  sound 
on  other  subjects ;  it  is  only  sound  in  appearance ;  for  if  the 
subject  of  the  delusion  be  presented  to  it,  the  unsoundness 
would  be  manifested  by  such  a  person  believing  in  the  sug- 
gestions as  if  they  were  realities ;  any  act,  therefore,  done 
by  such  a  person,  however  apparently  rational  that  act  may 
appear  to  be,  is  void,  as  it  is  the  act  of  a  morbid  or  unsound 
mind." 

Later  this  rule  was  applied  in  an  action  to  annul  a  mar- 
riage where  the  form  of  insanity  was  intermittent,  and  the 
woman  was  sane  during  part  of  the  time,  but  there  was 
strong  evidence  of  a  mental  disease  which  would  terminate 
in  permanent  insanity.  "  It  was  said :  "  The  court  has  not 
here,  as  in  many  testamentary  cases,  to  deal  with  varieties 
and  degrees  in  strength  of  mind,  with  the  more  or  less  fail- 
ing condition  of  intellectual  power  in  the  prostration  of  ill- 
ness, or  the  decay  of  faculties  in  advanced  age.  The  ques- 
tion here  is  one  of  health  or  disease  of  mind,  and  if  the 
proof  shows  that  the  mind  was  diseased,  the  court  has  no 
means  of  gauging  the  extent  of  the  derangement  consequent 
upon  that  disease,  or  affirming  the  limits  within  which  the 
disease  might  operate  to  obscure  or  divert  the  mental  power." ' 
This  doctrine  was  subsequently  carried  to  its  logical  conclu- 

iForman  v.  Forman,  24  N.  Y.  3  Hancock  v.  Peaty,  1  P.  &  D. 
Supp.  917.'  335. 

2  6Moo.  P.  C.  341(1848> 


598.  INSANITY    AND   MENTAL   INGAPACITT.  [§  651. 

sion,  and  it  was  held  that  a  person  who  is  affected  by  mono- 
mania, although  sensible  or  prudent  on  other  subjects,  is  not 
in  law  capable  of  making  a  wHL'  The  doctrine  of  the 
"Waring  case  is  no  longer  accepted  in  England.  In  18Y9  it 
waSi  said :  "  A  few  years  ago  it  was  generally  considered 
that,  if  a  man's  mind  was  unsound  in  one  particular,  the 
mind  being  one  and  indivisible,  his  mind  was  altogether  un- 
sound, and  therefore  that  he  could  not  be  held  capable  of 
performing  rationally  such  an  act  as  the  making  of  a  will. 
A  different  doctrine  subsequently  prevailed,  and  this  I  pro- 
pose to  enunciate  for  your  guidance.  It  is  this :  If  the  de- 
lusions could  not  reasonably  be  convinced  to  have  had  any- 
thing to  do  with  the  deceased's  power  of  considering  the 
claims  of  his  relations  upon  him  and  the  manner  in  which 
he  acted,  then  the  presence  of  a  particular  delusion  would 
not  incapacitate  him  from  making  a  will."  ^  The  doctrine 
of  the  Waring  case  does  not  seem  to  have  found  much  favor 
in  American  courts  and  has  been  expressly  repudiated.' 

§654.  The  test  of  business  ability. —  In  the  iirst  decis- 
ions on  questions  of  insanity  the  law  was  contradictory  and 
not  yevy  satisfactory  to  any  reasonable  doctrine.  The  nat- 
ure of  mental  phenomena  and  diseases  was  not  well  settled, 
although  it  was  beginning  to  be  believed  that  some  forms 
of  insanity  would  yield  to  medical  treatment.  The  presence 
of  insanity  was  taken  as  proof  that  the  whole  mind  was  dis- 
ordered, and  therefore  it  was  held  that  if  a  party  could 
enter  into  a  contract,  or  care  for  his  estate,  he  had  capacity 
to  enter  into  any  kind  of  agreement.^    And  at  one  time  the 

1  Smith  V.  Tebbetts,  1  P.   &  D,  '     2  Smee  v.  Smee,  5  P.  D.  84    See, 

398.    Some  dicta  to  the  same  effect  also,  Jenkins  v.  Morris,  14  Ch.  D. 

appear  in  McDonald  v.  McDonald,  674;  BanksuGoodfellow,5  Q.B.549. 

14  Grant's  Ch.  545;  Cook  v.  Parker,  3  Dennett  v.  Dennett,  44  N.  H. 

4  Phil.  263;  Vensell  u  Chancellor,  531;  Boardman    v.  Woodman,  47 

5  Whart.  371.  But  see  McDonald  N.  H.  120;  Frazer  v.  Jennison,  43 
V.  McDonald,  16  Grant's  Ch.  37;  Mich.  206;  Benoist  v.  Mmrin,  58 
Beals  V.  See,  10  Pa.  St.  56;  Lan-  Mo.  304;  Denson  u  Beasley,  34Tex. 
caster  Co.  Bank  v.  Moore,  78  Pa.  191. 

St  407.  i  In  Browning  v.  Eeane,  3  Phillim. 


§  654.]  INSANITY   AND   MENTAL   INCAPAOITY.  599 

American  authorities  were  uniform  that  the  true  test  of  in- 
sanity in  this  kind  of  action  was  the  ability  to  enter  into  a 
contract  or  transact  business.'  This  is  Avhat  may  be  called 
a  general  test,  and  proceeds  upon  the  unsound  presumption 
that  the  ability  required  to  make  one  contract  is  suificient 
for  all  contracts.  This  test  ignores  the  fact  that  different 
faculties  and  degrees  of  mental  power  are  required  in  mak- 
ing the  dift'erent  kinds  of  contracts.  It  was  once  thought 
that  ability  to  make  a  contract  was  suificient,  since  a  less 
capacity  was  required  to  contract  marriage.^  In  an  English 
case  an  opposite  view  is  taken,  and  it  is  said  that  "  if  any 
contract  more  than  another  is  capable  of  being  invalidated 
on  the.  ground  of  the  insanity  of  either  of  the  contracting 
parties^  it  should  be  the  contract  of  marriage, —  an  act  by 
which  the  parties  bind  their  property  and  their  persons  for 
the  rest  of  their  lives."  ' 

Such  comparisons  are  not  pertinent.  The  law  aims  to 
find  the  ability  of  the  party  to  make  the  particular  contract 
at  the  time  it  was  entered  into.  It  tries  by  a  special  test 
for  each  case  to  discover  whether  the  alleged  insane  is  such 
in  respect  to  the  particular  question  which  is  being  investi- 
gated.    A  monomaniac  may  be  unsound  in  one  respect  and 

69,  Sir  John  NiohoU  held  that  "if  Cole,  5  Sneed,  57;  Middleborough 

the  incapacity  be  such  that  the  v.  Rochester,  13  Mass.  363;  Page  on 

party  is  incapable  of  understand-  Divorce,  193;  Atkinson  u  Medford, 

ing  the  nature  of  the  conduct  it-  46    Me.   510;    Foster    v.  Means,   1 

self,  and  incapable  from  mental  Speer  (N.  C),  569. 

imbecility  to  take  care  of  his  or  ^Ex  parte  Glen,  4  Des.  546.    In 

her  own  person  and  property,  such  this  case  it  was  said  that  "  there 

an  individual  cannot  dispose  of  his  may  possibly  be  so  much  imbeoil- 

or  her  person  and  property  by  the  ity  as  to  render  her  incapable  of 

matrimonial   contract    any   more  making    contracts    which    would 

than  by  any  other  contract."    And  bind  her  estate,  but  this  imbecility 

Lord  Stowell  held  that  it  must  be  does  not  appear  to  exist  in  so  great 

something  that  affects  a  party's  a  degree  as    to  incapacitate  her 

"  general  fitness  to  be  trusted  with  from  contracting  marriage,  which 

the  management  of  himself  and  seems  to  be  the  chief  object  of  the 

his  own  concerns."    Turner  t;.  Mey-  petitioner." 

ers,  1  Hag.  Con.  414.  '  Lord  Penzance  in  Hancock  v. 

1  Anonymous,  4  Pick.  33;  Cole  v.  Peaty,  1  P.  &  M.  335. 


600  INSANITY   AND   MENTAL   INCAPACITY.  [§  658. 

not  in  all  others.  He  may  have  "  mental  competency  to 
make  one  contract  and  not  another."  ^  The  test  of  business 
abihty  is  not,  therefore,  a  correct  test  of  ability  to  enter  into 
the  marriage  contract. 

§  658.  Ability  to  understand  the  nature  of  the  mar- 
riage contract. —  In  a  suit  to  annul  a  marriage  on  the 
ground  that  one  of  the  parties  was  insane  and  therefore 
incapable  of  consenting  to  the  marriage,  different  tests  of 
insanity  have  been  applied.  FBut  the  most  reasonable  test 
is  believed  to  be  the  ability  to  understand  the  nature  of  the 
marriage  contract  and  not  the  ability  to  enter  into  ordinary 
contracts  or  to  make  a  willil  So  various  are  the  forms  and 
degrees  of  mental  unsoundness  that  the  party  may  be  able  to 
act  intelhgently  in  one  transaction  and  be  utterly  unable  to 
understand  the  nature  of  another  transaction.  It  is  imprac- 
tical to  apply  the  same  tests  to  actions  which  require  differ- 
ent powers  of  mind.  The  law  recognizes  the  fact  that  there 
may  be  derangements  of  mind  as  to  particular  subjects,  and 
yet  capacity  to  act  on  other  si^bjeots.  Proof  of  insanity 
does  not  estaiblish  incapacity  in  every  respect.  In  order  to 
invalidate  a  man's  act  it  must'  be  shown  that  the  insanity 
was  such  as  to  prevent  rational  thought  and  reasonable  judg- 
ment in  regard  to  the  very  act  in  controversj''.  Monomania 
does  not  pervert  aU  the  faculties  of  the  mind.  A  person 
subject  to  an  insane  delusion  is  not  incompetent  to  make  a 
will,  unless  such  delusion  is  one  affecting  and  incapacitating 
him  as  a  testator.  The  deed  of  a  monomaniac  is  valid  when 
his  monomania  did  not  affect  his  business  capacity  in  this 
respect.  And  so  with  the  marriage  contract;  the  alleged 
insane  person  may  be  able  to  understand  the  nature  of  such 
contract  and  to  give  intelligent  consent  to  it,  and  yet  be  in- 
capable of  criminal  intent  or  without  ability  to  transact 
business.  Therefore  the  true  test,  in  actions  to  annul  a  mar- 
riage on  account  of  insanity  at  the  time  of  the  marriage,  is 
whether  the  party  was  capable  of  understanding  the  respon- 

iSt.  George  v.  Biddleford,  76  Me.  593. 


§  659.]  INSANITY    AND   MENTAL   INOAPACITT.  601 

sibilities  assumed  by  marriage.  This  test  is  applied  in  all  the  / 
recent  and  well  considered  cases,  both  English  and  American.*  I 
§  659.  To  what  extent  must  the  nature  of  the  mar- 
riage  contract  be  understood. —  We  have  seen  that  the  test 
of  mental  capacity  to  enter  the  marital  relation  is  the  ability 
to  vm,derstand  the  nature  of  the  marriage  contract.  This  ex- 
pression needs  some  further  explanation.  It  certainly  does 
not  require  the  contracting  parties  to  comprehend  all  the 
complications  of  property  rights  which  may  follow  marriage, 
for  such  test  would  require  a  legal  education.  And  for  the 
same  reason  the  parties  need  not  be  able  to  enumerate  the 
causes  for  dissolution  of  the  marriage  which  they  are  about 
to  enter,  or  the  laws  of  nature  concerning,  the  procreation  of 
children,  and  the  probability  of  the  children  of  the  marriage 
being  subject  to  hereditary  insanity.  Nor  need  there  be 
any  ability  to  apprehend  any  other  consequences  of  mar- 
riage which  require  special  knowledge  or  even  a  common 
education.  For  the  most  illiterate  person,  even  a  savage, 
can  have  the  required  understanding.  The  question  then 
arises,  what  understanding  is  required?  It  is  not  possible 
that  any  satisfactory  formula  can  be  given  that  will  contain 
the  few  essentials  absolutely  required.  In  the  law  of  wills 
the  mental  capacity  has  been  thus  described:  "  A  person  of 
sound  mind,  within  the  meaning  of  the  law  in  this  case,  is 
one  who  has  full  and  intelligent  knowledge  of  the  act  he  is 
engaged  in,  a  full  knowledge  of  the  property  he  possesses, 
an  intelligent  perception  and  understanding  of  the  disposi- 
tion he  desires  to  make  of  it,  and  of  the  persons  he  desires 
shall  be  the  recipients  of  his  bounty,  and  the  capacity  to 
recoUect  and  comprehend  the  nature  of  the  claims  of  those 
who  are  excluded  from  participating  in  his  bounty ;  but  it  is 
not  necessary  that  he  should  have  sufficient  capacity  to  make 
contracts  and  do  business  generally,  nor  to  engage  in  com- 

iKem  V.  Kern  (N.  J.  Eq.),  26  A.  ford,  76  Me.  593;  Cannon  uSmalley, 

837;  Lewis  v.  Lewis,  44  Minn.  124,  10  P.  D.  96;.  Hunter  v.  Edney,  10 

46  N.  W.  323;  Durham  v.  Durham,  P.  D.  93. 
10  P.  D.  80;  St.  George  u  Biddle- 


602  INSANITY   AND  MENTAL   INCAPACITY.  [§  660. 

plex  and  intricate  business  matters." '  This  was  given  as  an 
instruction  to  a  jury  and  held  correct  on  appeal.  It  seems 
to  be  a  fair  enumeration  of  the  mental  powers  that  should 
be  required  of  a  testator.  A  similar  definition  of  the  mental 
capacity  to  contract  marriage  has  been  thought  impractical 
and  unwise.^  It  is  simply  a  difficult,  but  not  impossible, 
task,  to  enumerate  the  essentials  of  the  marriage  contract 
that  must  be  understood  before  a  valid  marriage  can  be  en- 
tered into.  A  person  understands  the  nature  of  the  marriage 
contract  who  knows  that  marriage  is  an  agreetnent  between 
a  man  and  a  woman  to  love  each  other,  to  live  together  as 
husband  and  wife,  in  mutual  dependence,  for  life,  unless 
grave  causes  justify  their  divorce.  'No  person  can  under- 
stand the  nature  of  the  marriage  contract  unless  he  or  she 
is  rational  enough  to  know  the  other  party  and  is  able  to 
contemplate  marriage  with  such  other,  to  entertain  some 
affection  for  the  other,  and  to  desire  a  union  for  life.  These 
simple  requirements  are  to  be  taken  into  consideration  with 
the  knowledge  of  the  incapable  party  of  his  surroundings, 
his  financial  ability  and  other  facts. 

§  660.  Insane  delnsion. —  We  have  seen  that  mere  mental 
unsoundness  does  not  invalidate  the  act  of  the  party,  or 
render  him  incapable  in  law  of  doing  any  valid  act.  It  is 
now  weU  established  that  one  possessed  of  an  insane  delu- 
sion may  be  capable  of  transacting  business,  the  subject- 
matter  of  which  is  not  within  the  scope  of  his  peculiar  de- 
rangement.'   It  now  remains  to  inquire  into  the  nature  and 

1  Meeker  v.  Meeker,  74  la.  353,  ments  of  mutual  esteem,  attaoh- 
37  N.  W.  773,  citing  Bates  v.  Bates,  ment  and  affection,  which  the 
27  la.  110;  Will  of  Convey,  52  la.  weakest  may  feel  as  well  as  the 
197.  strongest  intellects,  than  on  the 

2  In  Elzey  v.  Elzey,  1  Houst.  308,  exercise  of  a  clear,  unclouded  rea- 
it  is  said:  "It  would  be  dangerous,  son,  or  sound  judgment,  or  intelli- 
perhaps,  as  well  as  difficult,  to  pre-  gent  discernment  and  discrimina- 
sci-ibe  the  precise  degree  of  mental  tion,  and  in  which  it  diilers  in  a 
vigor,  soundness  and  capacity  es-  very  important  respect  from  all 
sential  to  the  validity  of  such  an  other  civil  contracts." 
engagement:  which,  after  all,  in  !^Smee  v.  Smee,  5  P.  D.  84 
many  cases  depends  more  on  senti- 


§  660.]  INSANITY   AND   MENTAL   INCAPACITY.  603 

effect  of  insane  delusions.  A  delusion  is  a  spontaneous  con- 
ception of  the  mind  which  has  no  existence  except  in  the 
imagination,  and  which  the  party  believes  against  all  evi- 
dence to  the  contrary.  In  a  modern  case  the  delusions  were 
a  constant  and  unreasonable  fear  of  personal  violence;  a 
belief  that  the  party  had  certain  diseases,  and  a  conception 
that  he  could  see  inside  of  the  bodies  of  others.^  The  first 
two  delusions  were  thought  to  be  too  common  among  in- 
telligent persons  to  be  any  indication  of  diseased  intellect, 
and  the  last  delusion,  while  evidence  of  great  mental  weak- 
ness or  disease,  was  not  of  such  a  nature  as  to  preclude  a 
proper  understanding  of  the  contract  of  marriage.^  It  is  not 
probable  that  a  belief  in  modern  spiritualism  would  indicate 
an  incapacity  to  understand  the  responsibilities  of  the  mar- 
riage relation.  It  is  not  considered  evidence  of  mental  unsound- 
ness.^ Kleptomania,  or  a  morbid  propensity  to  steal,  whether 
a  form  of  mental  weakness  or  a  disease,  is  not  such  mental 
unsoundness  as  to  render  the  party  incapable  of  assenting  to 
the  contract  of  marriage.^  The  special  test  in  all  classes  of 
insane  delusion  or  monomania  is  now  held  to  be  this :  Did 
the  person  whose  act  is  questioned  possess  suificient  ability 
to  understand  the  transaction  in  a  reasonable  manner?  If 
so,  the  act  is  valid.^    If  a  will  is  the  direct  offspring  of  the 

iKern  v.  Kern  (N.  J.  Eq.),  26  A.  Phila.  344;  Lee  v.  Lee,  2  McCord, 

837.  183;  Johnson  v.  Johnson,  10  Ind. 

2  Id.  387;  Woodbury  v.  Obear,  7  Gray, 

3  Cent.  Ins.  Co.  v.  Depeuch,  82  Pa.  467.  Nor  will  peculiar  views  as  to 
225;  Middleditoh  u  Williams,  45  N.  the  state  of  future  existence,  for 
J.  Eq.  736;  La  Bau  v.  Vanderbilt,  3  this  is  a  question  not  of  accurate 
Eedf.  (N.  Y.)  384;  Matter  of  Keeler,  knowledge,  but  of  faith.  Austin 
12  N.  Y.  St.  Rep;  148.  v.  Graham,  1  Spinks,357;  Bonard's 

i  Lewis  V.  Lewis,  44  Minn.  124,  46  Will,  16  Abb.  Pr.  (N.  S.)  128;  Weir's 

N.  W.  323.    The  belief  in  witch-  Will,  9  Dana,  434;  Gass  v.  Gass,  3 

craft  wiU  not  render  a  testator  Humph.    278;   Denson  v.  Beasley, 

incompetent.    Kelly  v.  Miller,  39  34  Tex.  191. 

Miss.   17;    Van    Guysling  v.   Van  sDavern  r.  White,  43  N.  J.  Eq. 

Kuren,  35  N.  Y.  70;  Addington  v.  569,  7  A.  683;  Eaton  v.  Eaton,  37 

Wilson,  5  Ind.  137;  Matter  of  Ved-  N.  J.  L.  108;  Blakeley  v.  Blakeley, 

der,  6  Dem.  93;  Leech  v.  Leech,  1  33  N.  J.  Eq.  502. 


604  INSANITY   AND   MENTAL   INCAPACITY.       [§§  661,  662. 

partial  insanity  or  monomania  under  which  the  testator  is 
laboring,  it  is  invalid,  although  he  may  have  been  sane  as  to 
all  other  subjects.^  In  conformity  to  these  rulings,  the  spe- 
cial test  of  insanity,  in  actions  where  the  validity  of  the  mar- 
riage is  tested,  is  whether  the  party  was  capable  at  the  time 
of  understanding,  in  a  reasonable  manner,  the  nature  of  the 
marriage  contract ;  or  whe'ther  the  insane  delusion  was  such 
as  to  cloud  the  mind  with  reference  to  such  contract.^ 

§  661.  Lucid  interval. —  Any  contract  entered  into  dur- 
ing a  lucid  interval  was  not  voidable  at  common  law  or  the 
civil  law,  although  the  party  may  have  been  insaiie  before 
and  after  such  interval.'  And  this  is  true  of  the  marriage 
contract.*  If  the  insanity  is  temporary  and  in  the  incipient 
stage,  the  marriage  will  be  presuined  to  have  taken  place 
during  a  lucid  interval,  and  insanity  at  the  time  of  marriage 
must  be  proved.'  But  a  permanent  form  of  insanity  once 
shown  is  presumed  to  continue,  and  if  the  proof  shows  that 
the  derangement  was  present  after  the  marriage,  the  inca- 
pacity will  be  presumed,  and  the  burden  shifts  upon  the 
other  party  to  prove  that  the  celebration  occurred  during 
the  lucid  interval.  "' 

§  663.  Hereditary  insanity. —  The  fact  that  other  mem- 
bers of  the  family  of  the  alleged  insane  had  been  of  unsound 
mind  was  at  one  time  considered  inadmissible  in  either  civil 
or  criminal  cases.^  But  science  having  shown  how  material 
such  fact  may  be  in  investigating  the  nature  and  extent  of 
insanity,  our  courts  have  abandoned  that  rule  of  evidence 

iRedfleld  on  Wills;   Denson.  v.  *  Turner  i;.  Meyers,  1  Hag.  Con. 

Beasley,  34  Tex.  191 ;  Middleditch  414. 

u  Williams,  45  N.J.  Eq.  736;  Town-  « Smith  v.  Smith,  47  Miss.  311; 

send  u  Townsend,  7  Gill,  10;  Smith  Scott   v.   Paquet,  17   Lower   Can. 

V.  Smith  (N.  J.  Eq.),  35  A.  11;  Jen-  Rep.  383;  Goodheart  v.  Ransley,  38 

kins  V.  Morris,   14  Ch.  Div.   674:  Weekly  Law  Bui.  337. 

Blakeley's  Will,  48  Wis.  394,  4  N.  « Meeker  v.  Meeker,  75  111.  360 

W.  837.     Contra,  Waring  v.  War-  McAdam  v.  Walker,  1   Dow.   148 

ing,  6  Moore  P.  C.  341.  Hugan  v.  8.,  5  Baxter. (Tenn.),  615 

2Slais  V.  Slais,  9  Mo.  Ap.  96.  Doe  v.  Whitefoot,  8  C.  &  P.  370. 

3  Bush  well  on  Insanity,  848,  , 


§§  663,  664.]      INSANITY   AND   MENTAL   INCAPACITY.  605 

as  unphilosophical  and  unsound,  and  now  hold  that  evidence 
of  insanity  of  either  parent,  or  even  of  a  remote  ancestor,  is 
competent  upon  the  issue  of  insanity.*  The  usual  method 
of  introducing  such  evidence  is  to  first  show  the  presence  of 
symptoms  of  insanity,  and  then  the  insanity  of  the  ancestor 
becomes  admissible.  This  question  is  not  discussed  in  the 
reports  of  actions  to  annul  marriages  on  the  ground  of  in- 
sanity ;  such  evidence  seems  to  have  been  admitted  in  most 
of  the  cases  without  objection.  Such  fact  is  considered  by 
the  courts  as  a  minor  fact  tending  to  establish  insanity,  and 
as  not  entitled  to  any  great  weight,  since  a  party  may  have 
congenital  insanity  and  yet  be  perfectly  lucid  for  years  at  a 
time.  The  mere  presence  of  the  taint  of  hereditary  insanity 
which  is  manifested  by  occasional  paroxysms  is  not  a  cause, 
for  annulling  the  marriage.^ 

§  663.  Other  forms  of  mental  incapacity. —  No  aid  can 
be  derived  from  a  discussion  of  the  various  forms  of  mental 
unsoundness,  weakness  or  disease.  The  same  special  test 
should  be  applied  to  all  the  various  shades  of  derangement, 
namely,  the  ability  to  understand  the  nature  and  conse- 
quences of  entering  the  marital  relation.' 

§  664.  Marriage  while  drunk. —  The  test  applied  in  cases 
of  alleged  insanity  at  marriage  should  be  applied  to  that 
mental  state  called  intoxication.  A  marriage  celebrated 
while  the  party  is  intoxicated  to  the  extent  of  great  mental 
disturbance  is  not  voidable  unless  the  party  was  incapable  of 
knowing  the  nature  of  the  marriage  contract  and  that  he  was 

'People  v.  Garbutt,  17  Mich.  10;  v.  Reane,  3  Phillim.  69;  Birdsong 

People  V.  Smith,  31  CaL  466;  Brad-  v.  Birdsong,    2   Head,  289;    Car^ 

ley  u  S.,  31  Ind.492;  Lurosv.  Com.,  wright  v.   Cartwright,  1   Phillim. 

84  Pa.  200.  80;  Johnson  v.  Kincade,  2  Ired.  Eq. 

2  Smith  V.   Smith,  47  Miss.   311;  470. 

Ackley  v.  Stephens,  8   Ind.  411 ;  As  to  ability  of  deaf  and  dumb 

Hamaker  v.  Hamaker,  18  111.  137.  to  understand  nature  of  contracts, 

3  Doe  V.  Roe,  1  Edm.  Sel.  Cas.  see  Dickenson  v.  Blisset,  1  Dick. 
(N.  Y.)  344;  In  re  Vanauken,  10  268  (1754);  Harrod  v.  Hariod,  1 
N.  J.  Eq.  186;  Smith  v.  Smith,  47  Kay  &  J.  4;  Brower  v,  Fisher,  4 
Miss.  311;    Portsmouth   v.   Ports-  Johns,  Ch.  441. 

mouth,  1  Hag.  Ec.  355;  Browning 


606  INSANITY   AND   MENTAL' INCAPACITY.  [§  665. 

performing  the  ceremony.'  ^  The  proof  of  mental  incapacity 
should  be  clear  to  invalidate  a  marriage  where  a  party  has 
deliberately  planned  the  occasion,  made  all  necessary  prepara- 
tions for  it,  and  in  other  ways  showed  a  determination  to 
bring  about  the  marriage  which  he  now  seeks  to  avoid.  No 
case  is  reported  where  such  marriage  was  declared  void. 
Other  elements,  such  as  fraud,  conspiracy  or  mental  weak- 
ness, must  be  shown  in  such  case.  Some  assistance  may  be 
derived  from  an  examination  of  cases  where  the  validity  of 
wills  and  contracts  has  been  contested  on  the  ground  of 
mental  incapacity  arising  from  drunkenness  or  delirium 
tremens,  but  it  should  be  borne  in  mind  that  the  ability  to 
enter  into  a  contract  or  make  a  will  is  not  an  exact  test  of 
the  ability  to  understand  the  nature  of  the  marriage  con- 
tract.^ Thus  a  marriage  is  valid  where  the  husband  is  suf- 
fering from  attacks  of  delirium  tremens,  if  the  marriage 
took  place  during  a  lucid  interval,  and  the  alleged  incompe- 
tent party  was  able  to  discuss  and  arrange  the  terms  of  a 
marriage  agreement.' 

§  665.  Suicide. —  The  mere  fact  of  self-destruction  raises 
no  presumption  of  insanity.*  A  person  may  commit  suicide 
and  be  rational  as  to  everything  else.  The  act  itself  is  not 
inconsistent  with  the  idea  of  a  sound  mind.  The  act  occur- 
ring shortly  after  the  marriage  in  question  is,  of  course,  ad- 

lElzey  V.  Elzey,  1  Houst.  (Del.)  dal,    Wright,  507;    Cummings   v. 

308;    Roblin  v.  Roblin,   28  Grant  Henry,  10  Ind.  109. 

(U.  Canada),  439;  Clement  v.  Matte-  ^gcott  v.  Paquet,  17  Lower  Can., 

son,  3  Rich.  Law  (S.  C),  98;  John-  Rep.  283. 

son  V.  Brown,  2  Scotch  Sess.  Cas.  <  Jones  v.  Gorham  (Ky.),  14  S.  W. 

437;  MoCreery  v.  Barcalow,  6  Ohio  599;  MoElwee  v.  Ferguson,  43  Md. 

Cr.  Ct.  R.  481.  179;  Germain  v.  Brooklyn  L.  Ins. 

2  Dixon  V.  Dixon,  22  N.  J.  Eq.  91;  Co.,  26  Hun,  604;  Duffleld  v.  Mor- 

Menkins  v.  Lightner,  18  III.  282;  ris'  Ex'r,  2  Har.  (Del.)  375;  Brooks 

Jenness  v.  Howard,  6  Blackf.  (Ind.)  v.  Barrett,  7  Pick.  94;  McAdams  v/ 

940;  Wheeler  v.  Alderson,  3  Hag.  Walker,  1  Dow.  148;  Merritt  u  Ins. 

Ec.  574;  Sill  v.  JIcKnight,  7  Watts  Co.,  55  Ga.  103;  Terry  v.  Ins.  Co.,  1 

&  S.  (Pa.)  244;  Hutchinson  v.  Tind-  Dillon  C.  C.  403;  Pettitt  v.  Pettitt, 

all,  3  N.  J.  Eq.  357;  Clifton  v.  Davis,  4  Humph.  191;  Crum  v.  Thornley, 

1  Parsons  (Pa.),  31;  Woods  v.  Pin-  47  IlL  192. 


§§  666,  667.]       INSANITY   AND   MENTAL   INCAPACITY.  607 

missible  in  connection  with  other  facts,  but  it  does  not  alone 
create  a  presumption  of  insanity,  although  such  act  may  be 
contrary  to  reason,  education  and  natural  instincts  of  self- 
preservation. 

§  666.  Burden  of  proof  and  presumptions.—  The  burden 
of  proof  is  always  upon  the  party  who  attacks  the  validity  of 
a  marriage,  for  he  must  overcome  a  strong  presumption  that 
such  marriage  is  legal  and  valid.  Such  presumption  is  one 
of  necessity  as  well  as  of  a  sound  public  policy  that  protects 
the  parties,  their  children  and  property  from  the  evils  which 
will  result  in  declaring  a  marriage  invalid.  Mental  capacity 
is  also  presumed,  and  the  burden  of  proof  is  also  on  the 
party  who  seeks  to  avoid  the  marriage  on  the  ground  of  in- 
sanity, so  that  there  is  a  union  of  presumptions  to  overcome. 
There  is  another  presumption,  common  to  every  department 
of  law,  that  a  condition  or  situation  of  things  once  shown  is 
presumed  to  continue  until  the  contrary  appears.  The  pre- 
sumption of  continued  insanity  is  weak  where  the  alleged 
incompetent  party  was  adjudged  insane  at  a  time  remote 
from  the  time  of  marriage.  If  found  insane  shortly  before 
the  marriage,  the  presumption  of  continued  insanity  is  suffi- 
cient, in  the  absence  of  rebuttal,  to  justify  a  finding  that  a 
party  was  insane  at  the  time  of  the  marriage.  But  if  such 
person  was  adjudged  insane  three  years  before  the  marriage, 
the  fact  is  too  remote  to  create  a  presumption  of  continued 
insanity  sufficient  to  overcome  the  two  presumptions  of  va- 
lidity of  marriage  and  the  mental  capacity  of  the  parties.' 

§  667.  Effect  of  previous  finding  of  insanity  by  inquisi- 
tion.—  The  finding  of  a  commission  of  lunacy  is  always  ad- 
missible where  such  finding  is  not  too  remote.  It  is  not, 
however,  conclusive  that  the  party  was  insane  at  the  time 
■  of  the  marriage.  But  such  finding  is  competent  evidence  of 
the  fact,  and  is  such  jprimM  facie  proof  as  to  raise  the  pre- 
sumption that  the  party  was  insane  and  continued  to  be 
while  the  commission  continued.^    The  party  will  be  pre- 

1  Castor  V.  Davis,  120  Ind.  231.         837;  Portsmouth  v.  Portsmouth,  1 

2  Kern  v.  Kern  (N.  J.  Eq.),  26  A.    Hagg.  355;  Keys  v.  Norris,  6  Kieh. 


608  INSANITY    AND   MENTAL   INCAPACITY.  [§  667. 

sumed  to  be  insane  if  the  act  in  question  occurred  subse- 
quently to  the  finding  of  the  commission,  or  so  nearly  an- 
tecedent as  to  have  been  embraced  in  the  inquiry  of  the 
commission.'  The  finding  would,  of  course,  affect  the  valid- 
ity of  a  will  which  was  executed  during  the  time  covered 
by  the  inquisition.^  The  finding  is  not  conclusive  upon  the 
party  because  of  its  ex  parte  nature,  and  may  be  rebutted 
or  avoided  by  proof  that  the  party  was  always  of  sound 
mind,  or  had  been  insane  but  had  recovered,  or  that  the 
party,  although  often  insane,  acted  during  a  lucid  interval.' 
The  fact  that  a  commission  has  found  a  party  incapable  of 
transacting  the  ordinary  affairs  of  life  may  not  always  de- 
termine the  party's  capacity  to  enter  into  the  status  and 
relation  of  marriage.*  For  a  party  may  have  an  insane 
delusion  which  would  be  dangerous  to  others  and  justify  his 
confinement  in  an  asylum,  and  yet  be  capable  of  understand- 
ing the  nature  and  effect  of  marriage ;  as  where  he  has  a 
delusion  or  fear  of  personal  attack  and  carries  arms  for  self- 
defense.' 

Eq.  388;  Banker  u  Banker,  63  N.  Y.  Smith,  6  Ir.  Eep.  Eq.  429;  Hume 
409;  Hunt  v.  Hunt,  13  N.  J.  Eq.  161;  v.  Burton,  Ridgway,  204;  Gibson  v. 
Yaugert;.  Skinner,  14  N.J.  Eq.  389;  Soper,  6  Gray,  279;  Titlow  v.  Tit- 
Hill  V.  Day,  84  N.  J.  Eq.  150;  Mott  low,  40  Pa.  St.  483;  Field  v.  Lucas, 
V.  Mott,  49  N.  J.  Eq.  192,  22  A.  21  Ga.  447;  Stevens  v.  Stevens,  127 
997;  Little  v.  Little,  13  Gray,  264:  Ind.  560,  26  N.E.  1078;  Middleditch 
Crowninshield  v.  Crowninshield,  2  v.  Williams,  45  N.  J.  Eq.  726, 17  A. 
Gray,  524.  See,  also,  Buswell  on  826.  See,  also.  Stone  v.  Damon,  13 
Insanity  (1885),  216,  citing  Serge-  Mass.  488;  Breed  u  Pratt,  18  Pick, 
son  V.  Sealy,  3  Atk.  412;  Faxllderu.  115. 

Silk,  3  Camp.  (N.  P.)  126;  Cooke  v.  i  Banker  v.  Banker,  63  N.  Y.  409. 

Turner,  15  Sim.  611 ;  Van  Dusen  2  Hughes  v.  Hughes,  3  Mun.  209. 

V.  Sweet,  51  N.  Y.  378;  Shumway  springep  v.  Dyce,  10  Moo.  P.  C. 

V.  Shumway,  2  Vt.  339;  Rippy  v.  232;  Titlow  v.  Titlow,  40  Pa.  St, 

Gant,  4   Ired.    448;   Christmas   v.  483;  Rider  v.  Miller,  86  N.  Y.  507; 

Mitchell,   3    Ired.   Eq.   585;    Arm-  Cook  u  Cook,  53  Barb.  180. 

strong  u  Short,  1  Hawks,.  11;  Wil-  ^Garnett  v.  Garnett,  114  Mass. 

lis  V.  Willis,  13  Pa.  St.  159;  Gang-  879. 

were's  Estate,  14 Pa.  St  417;  Lucas  'Kern  v.  Kern  (N.  J.  Eq.),  26  A. 

V.  Parsons,  23  Ga,  267;  Hassard  v.  837. 


§§  668,  669.]      INSANITY   AND   MENTAL   INCAPACITY.  609 

§  668.  Conduct  at  marriage  ceremony. —  It  is  said  that 
"  the  fact  of  a  party's  being  able  to  go  through  the  mar- 
riage ceremony  with  propriety  is  prima  facie  evidence  of 
sufficient  understanding  to  make  the  contract." '  This  might 
be  true  where  there  is  no  proof  of  insanity  before  the  mar- 
riage. Eut  where  there  is  some  evidence  of  insanity,  the 
fact  that  the  party  knew  the  ceremony  was  being  performed 
and  acted  with  propriety  is  not  entitled  to  much  weight,  for 
the  insane  may  appear  rational  at  times.^  They  may  be 
able  to  take  part  in  a  mere  ceremony  without  being  able  to 
understand  the  nature  of  the  marriage  contract.'  The  evi- 
dence is  not  restricted  to  the  conduct  of  the  party  at  the 
time  of  the  marriage,  but  evidence  of  the  mental  condition 
of  the  party  both  before  and  after  the  ceremony  is  admis- 
sible.* 

§  669.  Deliberate  preparations  for  marriage. —  There 
can  be  no  better  proof  of  sanity  at  the  time  of  marriage 
than  that  the  party  made  deliberate  preparations  for  the 
marriage  and  for  the  support  of  his  Avife,  and  was  able  to 
execute  his  plans  until  the  ceremony  was  performed.  Such 
forethought  is  direct  proof  that  he  understood  the  nature 
and  responsibility  of  the  marriage  relation  and  intelligently 
arranged  his  affairs  accordingly.  A  marriage  is  therefore 
valid  where  the  husband,  though  of  weak  intellect,  and  at 
times  unable  to  express  himself  coherently,  has  mind  enough 
to  successfully  manage  his  own  estate,  to  purchase  a  house 
and  furniture,  to  manage  his  engagement  with  some  skill,  to 
talk  intelligently  to  the  minister,  to  conduct  himself  with 
propriety  during  the  ceremony,  and  to  avail  himself  of  his 
marital  rights.* 

1  Anon.,  4  Pick.  33.  Lee,  383  (1757),  where  a  marriage 

^Smithi;.  Smith,  47  Miss.  311.  was  declared  valid  although  the 

s  Browning  v.  Eeane,  3  Phillim.  husband  had  a  "  weak  understand- 

69.  ing  from  his  infancy,  and  by  hard 

*  Nonnemacher  v.  Nonnemacher,  drinking  was  at  times  lunatic,  and 

159  Pa.  634»  did  many  mad  and  frantic  acts,  but 

5  Kern  v.  Kern  (N.  J.  Eq.),  36  A.  no  commission  of  lunacy  was  taken 

637.  See,  also,  Parker  v.  Parker,  3  out,  nor  was  he  constantly  mad, 
39 


610 


INSANITY   AND   MENTAL   INCAPACITT. 


[§  670, 


§  670.  Affirming  marriage. —  Although  a  marriage  is 
voidable  on  account  of  the  incapacity  to  consent  while  in- 
toxicated, yet  the  party  may  consummate  the  marriage  upon 
recovering  from  intoxication,  and  if  he  does  so,  such  mar- 
riage is  valid  without  a  second  ceremony.'  And  it  is  not 
disputed  that  a  party  who  was  insane  at  the  time  of  mar- 
riage may,  upon  becoming  sane,  have  the  marriage  declared 
void  if  no  consummation  has  taken  place.^  Eut  the  author- 
ities are  not  agreed  as  to  the  eileot  of  a  marriage  of  an  in- 
sane person.  It  may  be  inferred  from  the  expressions  found 
in  the  early  writers  on  common  law  that  they  considered 
such  marriage  absolutely  void,  and  that  "  acquiescence,  long 
cohabitation  and  issue,  or  the  desire  of  the  parties  to  adhere, 
cannot  amend  the  original  defect." ' 

Nearly  aU  of  the  older  decisions  assume  that  the  marriage 
of  an  insane  person  is  a  mere  nullity,  incapable  of  rattfica- 


but  only  by  fits."  It  appeared  that 
he  had  no  attacks  of  insanity  about 
the  time  of  the  marriage,  that  he 
procured  and  paid  for  his  license, 
and  married  with  previous  deliber- 
ation and  intention. 

1  Roblin  V.  Roblin,  38  Grant.(U.  C), 
439. 

^Wightman  v.  "Wightman,  4 
Johns.  Ch.  343. 

■Toynter  on  Marriage  and  Di- 
vorce, 157.  See,  also.  Brae.  Abr., 
"Idiots  and  Lunatics;  "  Smart  v. 
Taylor,  9  Mod.  98;  Ex  parte  Tui'ing, 
1  Ves.  &  B.  140;  Co.  Litt.  33a.  See 
statement  of  common  law  of  this 
subject  in  Wiser  v.  Lockwood,  42 
Vt.  730.  The  f oUowing  dicta  have 
been  criticised  as  holding  that  such 
marriage  could  not  be  affirmed  (see 
1  Bishop,  Mar.,  Sep.  &  Div.,  §  616), 
but  it  seems  that  the  court  ex- 
pressly avoids  such  holding.  "In 
a  case  of  alleged  insanity  at  the 
time  of  marriage,  subsequent  ac- 


quiescence, during  long  or  frequent 
periods  of  undoubtedly  restored 
reason,  would  be  cogent  proof  of 
competent  understanding  at  the 
time  of  the  marriage;  but  assum- 
ing lunacy  to  then  have  existed, 
the  rule  of  the  author  quoted  seems 
to  be  sustained  by  the  considera- 
tion that  marriage  is  a  peculiar 
contract,  to  be  celebrated  with 
prescribed  ceremonies,  and  there- 
fore subsequent  acts,  not  amount- 
ing in  themselves  to  a  marriage, 
will  not  make  that  good  which  was 
bad  in  the  beginning.  But  we  do 
not  propose  to  lay  down  such  a  rule 
in  this  ease,  for  we  are  clearly  of 
opinion  that  a,t  no  timie  since  this^ 
marriage  has  this  person  been  so 
in  possession  of  her  faculties  as  to 
be  capable  of  judging  her  rights 
or  interests,  or  of  making  or  con- 
firming a  contract."  Crump  v. 
Morgan,  3  Ired.  Eq.  (N.  C.)  91,  40- 
Am.  D.  447  (1848). 


§  671.]  INSANITY   AND    MEKTAL   INCArACITY.  611 

tion.^  But  the  better  doctrine  is  believed  to  be  that  one 
Avho  marries  while  insane  may,  when  restored  to  reason, 
affirm  the  marriage  by  giving  consent  to  what  has  been 
done,  or  by  acquiescence  or  long  cohabitation,  and  that  such 
marriage,  when  thus  affirmed,  does  not  require  a  new  celebra- 
tion.^ This  doctrine  is  in  conformity  with  the  law  of  ratifi- 
cation by  subsequent  consent  where  the  party  was  at  the 
time  of  marriage  incapable  of  giving  a  valid  consent  on  ac- 
count of  want  of  age,  fraud,  error  or  duress.^  For  when 
the  fraud  or  mistake  is  discovered,  the  duress  escaped,  or 
the  age  of  consent  is  attained,  the  party  may  treat  the  mar- 
riage ceremony  as  valid,  and  thus  ratify  what  has  been  done. 
The  consent  and  the  marriage  ceremony  need  not  be  simul- 
taneous. To  hold  the  marriage  of  the  insane  to  be  void 
although  there  has  been  an  affirmance  would  open  the  way 
for  fraud,  and  cause  marriages  to  be  contested  where  there 
was  some  doubt  of  the  sanity  of  the  party.  After  a  long 
cohabitation,  when  children  are  born,  titles  conveyed,  prop- 
erty acquired  and  credit  obtained,  every  consideration  of 
public  policy  demands  that  a  marriage  so  long  affirmed 
should  not  be  annulled,  children  declared  illegitimate,  titles 
disturbed,  and  securities  declared  void,  because  the  ceremony 
of  marriage  and  the  consent  to  it  were  not  simultaneous. 

§  671.  How  marriage  disaffirmed. —  The  marriage  of  an 
insane  person  is  a  mere  nullity  unless  affirmed  after  reason 
is  restored.     If  the  insane  person  dies  before  reason  is  re- 

'  Portsmouth    v.  Portsmouth,    1  569;  Clement  v.  Mattison,  3  Rich. 

Hagg.  Ec.  355;  Browning  r.  Eeane,  93. 

2  Phillim.  69;  Rawdon  v.  Rawdon,  2  Cole  v.  Cole,  5  Sneed  (Tenn.),  57 
3S  Ala.  565;  Powell  u  Powell,  18  (1857),  citing  Bishop,  M.  &  Di v.,  sec. 
Kan.  371;  Jenkins  v.  Jenkins,  3  189;  AUis  u  Billings,  47  Mass.  415; 
Dana,  103;  Fornshill  v.  Murray,  1  Wightman  v.  Wightman,  4  Johns. 
Bland,  479;  Middleborough  r.  Roch-  Ch.  343.  See,  also,  Brown  v.  West- 
ester,  13  Mass.  363;  Ward  v.  Du-  brook,  27  Ga.  103;  Stickney  v. 
laney,  33Miss.  410;  Smith  t;.  Smith,  Mather,  24  Hun,  461;  Sabalot  v. 
47  Miss.  211;  True  v.  Ranney,  21  Populus,  31  La.  An.  854;  Secor  v. 
N.  H.  53;  Keys  v.  Keys,  33  N.  H.  Secor,  1  MacAr.  6^0. 
503;  Christy  v.  Clarke,  45  Barb.  3  gchouler,  Husb.  &  Wif e,  g  31. 
539;  Foster  v.  Means,  1  Speer  Eq. 


612  INSANITY   AND   MENTAL   INCAPAOITT.  [§  671. 

stored,  or  refuses  to  affirm  the  marriage  after  being  restored 
io  reason,  such  marriage  is  an  absolute  nullity  not  changing 
their  status.  It  is  a  mere  idle  ceremony.  The  invalidity  of 
such  marriage  may  be  established  in  any  court  and  in  any 
proceeding  where  the  question  may  arise,'  between  any  par- 
ties, and  whether  in  the  life-time  or  after  the  death  of  the 
supposed  husband  and  wife.^  It  is  a  grievous  wrong  to  all 
concerned  that  the  validity  of  a  marriage  should  be  open  to 
attack  at  any  time  and  in  any  proceeding.  But  such  issues 
may  be  avoided,  and  it  is  believed  that  the  only  just  method 
of  preventing  investigations  after  the  death  of  both  parties 
and  after  property  rights  are  questioned  is  to  obtain  a  decree 
of  nullity  within  a  reasonable  time  after  the  invalid  marriage 
was  entered  into.  It  is  unwise  to  prohibit  such  investigations 
by  an  absolute  statute,  for  we  have  seen  that  the  parties  may 
die  before  the  decree  could  be  obtained,  and  such  statute 
would  be  the  instrument  by  which  greater  wrongs  could  be 
inflicted.  The  true  method  of  avoiding  all  questions  of  the 
validity  of  the  marriage  is  to  determine  its  validity  before  a 
court  of  competent  jurisdiction,  before  the  parties  are  dead, 
and  while  witnesses  of  the  ceremony  are  living  and  their 
testimony  can  be  obtained,  while  associates  and  physicians 
of  the  alleged  insane  person  can  recall  to  memory  the  con- 

1  In  Massachusetts  the  statute  WiUiams,  5  Ired.  Law,  487,  44  Am. 
prohibits  such  collateral  attack  by  Deo.  49.  See  note,  page  54;  Unity 
declaring  that  "the  validity  of  a  v.  Belgrade,  76  Me. 419;  Bell  u  Ben- 
marriage  shall  not  be  questioned  nett,  73  Ga.  784;  Middleborough  v. 
in  the  trial  of  a  collateral  issue  on  Rochester,  12  Mass.  363;  Jenkins  u 
account  of  the  sanity  or  idiocy  of  Jenkins,  2  Dana,  103;  Jaques  v.  Pub- 
either  party,  but  only  in  a  process  lie  Adm.,  1  Brad.  499;  Waymire  v. 
duly  instituted  in  the  life-time  of  Jetmire.  23  O.  St.  371 ;  Atkinson  v. 
both  parties  for  determining  such  Medford,  46  Me.  510;  Clement 
validity.''  See  Goshen  v.  Wilhams,  v.  Mattison,  3  Rich.  93;  Johnson  v. 
4  Allen,  458;  Stukey  v.  Mathes,  34  Kincade,  2  Ired.  Eq.  470;  Ex  parte 
Hun,  461;  Wiser  v.  Lockwood,  42  Turing,  1  Ves.  &  B.  140;  Foster  v. 
Vt.  720;  Brown  v.  Westbrook,  37  Means,  1  Speer's  Eq.  569,  42  Am. 
Ga.  103.  Dec.  332;  PoweU  v.  Powell,  18  Kan. 

2Shelf.Mar.&Div.479;Schouler,  371. 
Husb.  &  Wife,  §  21;   Gathing  v. 


§  6T'2.J  INSANITY   AND   MENTAL   INCAPAOITT.  613 

duct  of  such  person,  tending  to  prove  his  capacity  to  under- 
stand the  nature  of  the  marriage  contract.  Unless  such 
decree  is  obtained,  the  question  must  be  determined  after  the 
death  of  the  parties,  in  actions  for  dower  or  curtesy,'  or  to 
fix  the  legitimacy  of  children,  or  to  determine  the  title  to 
property,  and  numerous  other  property  rights  affecting  the 
heirs  and  the  general  public- 

§  673.  Statutes  declaring  marriage  void  or  voidable. — 
The  question  whether  the  marriage  of  an  insane  party  is 
void  or  voidable,  and  whether  such  marriage  can  be  affirmed, 
is  determined  in  many  states  by  statutory  provisions  that 
such  marriage  shall  be  void :  "  Unless  after  the  removal  of 
the  disability  the  parties  freely  cohabited  as  husband  and 
wife ; " '  or,  "  not  void  in  case  of  lunacy  if  the  lunatic  has  re- 
covered reason,  and  the  parties  thereafter  have  freely  cohab- 
ited ; "  *  or,  "  after  restoration  to  reason  the  parties  freely 
cohabited ; " '  or,  ^'  not  voidable  if  after  the  restoration  of 
the  lunatic  to  sound  mind  the  parties  have  freely  cohabited 
as  husband  and  wife."  *  The  l^ew  York  code  declares  the 
marriage  of  a  lunatic  "  not  voidable  if  the  parties  cohabit 
after  the  lunatic  is  restored  to  reason." '  This  provision  is 
concise  and  accurate,  and  might  well  be  enacted  in  every 
state  to  prevent  the  perplexing  questions  which  arise  where 
the  statutes  are  ambiguous  or  silent.  In  some  of  the  states 
the  statutes  declare  that  the  marriage  of  an  incompetent 
party  "  shall  be  void  from  the  time  its  nullity  shall  be  de- 
clared by  a  court  of  competent  jurisdiction."  In  effect  this 
declares  the  marriage  valid  until  a  decree  of  nullity  has 
been  rendered.'  The  result  of  this  legislative  folly  is  that, 
if  a  raving  lunatic  marries  and  dies  before  the  delay  of  the 

1  Jenkins  v.  Jenkins,  3  Dana,  103 ;        «  Wyoming. 

Bell  V.  Bennett,  73  Ga.  784  'Similar  provisions  may  be  found 

2  Fomshill  v.  Murray,  1  Bland's  in  the  statutes  of  Nevada,  Oregon 
Chu  479  (Jlaryland,  1838).  and  Vermont. 

3  California,  North  Dakota,  South  «  Wiser  v.  Lockwood,  43  Vt.  730 ; 
Dakota,  Idaho.  Eliot  v.  Eliot,  77  Wis.  684,  46  N.  W. 

« Michigan.  806;  State  v.  Cone,  86  Wis.  498,  57 

5  Nebraska.  N.  W.  50. 


614 


INSANITY   AND   MENTAL   INCAPACITY. 


[§  CT2. 


law  will  permit  a  decree  declaring  such  marriage  void,  the 
woman  who  brought  about  such  marriage  will  be  entitled  to 
the  rights  of  a  widow.'  This  consequence  alone  would  jus- 
tify the  repeal  of  such  provision;  but  other  consequences 
equally  serious  might  be  suggested.^ 


1  Wiser  v.  Lockwood,  42  Vt.  720. 

2  Mr.  Bishop  lias  very  ably  criti- 
cised this  form  of  statute  as  "  mean- 
ingless and  contradictory  to  the 
context,  .  .  .  contrary  to  rea- 
son, to  right,  and  to  established 
principles  of  our  jurisprudence," 
.  .  .  permitting  the  man  "to 
commit  a  rape  on  the  woman,  take 


away  her  property,  and  vests  it  in 
him,  and  brings  matrimony  into 
ignominy."  He  arrives  at  the  con- 
clusion that  such  provision  "should 
not  be  treated  as  void  for  repug- 
nance, but  as  a  mere  senseless  at- 
tempt to  declare  an  obvious  truth." 
1  Mar.,  Sep.  &  Div.,  §§  636-38. 


IMPOTENCY. 


^  675. 
676. 
677. 
678. 
679. 
680. 

681. 
682. 
683. 
684 

685. 
«86. 

«87. 
•688. 
'689. 
690. 


In  generaL 

Impotency  defined. 

Physically  incapacitated. 

Matrimonial  incapacity. 

Physically  incapable. 

Must  be  permanent  or  in- 
curable. 

Forms  of  impotence. 

Refusing  intercourse. 

Impotence  as  a  fraud. 

What  will  bar  the  action  — 
Adultery  not  a  bar. 

Age  of  parties. 

Deed  of  separation  not  a 
bar. 

Eecrimination  not  a  bar. 

Delay. 

Insincerity. 

Estoppel  —  Impotent  party 
as  plaintiff. 


i  691.  Pleading  —  In  general. 
693.  How  impotency  alleged. 

693.  Different    forms    of    impo- 

tency may  be  joined. 

694.  Evidence  —  In  generaL 

695.  Burden  of  proof. 

696.  Triennial  cohabitation. 

697.  Inspection  of  the  person. 

698.  Power  of  our  courts  to  com- 

pel inspection. 

699.  Power  denied. 

700.  When  inspection  necessary. 

701.  Inspection  by  commission. 

702.  Personal  injury  cases. 

703.  Order   for  inspection,  how 

enforced. 

704.  Effect  of  decree  — Whether 

divorce  or  annulment. 

705.  Impotency  renders  the  mar- 

riage voidable. 


§  675.  In  general. —  At  common  law  impotence  or  phys- 
ical incompetency  was  cause  for  annulment  of  marriage,  but 
in  most  of  our  states  it  is  a  cause  for  divorce.  Whatever 
the  form  of  the  decree  the  court  is  empowered  to  enter,  the 
law  and  the  evidence  are  substantially  the  same.  The  in- 
decency of  the  required  evidence  and  the  invasion  of  the 
privacy  of  both  parties  has  deterred  many  from  bringing 
suit  for  this  cause ;  but  such  considerations  cannot  obstruct 
the  administration  of  the  law  or  hinder  the  averment  and 
proof  of  the  necessary  facts.  The  incapacity  of  one  party 
is  a  defect  rendering  true  marriage  impossible,  an.d  defeating 
the  purpose  of  the  marital  relation  to  such  an  extent  that 
the  law  wisely  relieves  both  parties  from  their  obligations. 


616  IMPOTENCT.  [§  6Y5. 

But  in  practice  it  is  advisable  to  avoid  this  cause  not  only 
on  account  of  the  diifioulty  of  proof,  but  because  other 
causes  for  divorce  will  answer  as  well.  If  the  cohabitation 
with  an  impotent  party  has  proved  injurious  to  the  com- 
plainant's health,  or  the  fraud  has  caused  grievous  men- 
tal suffering,  a  divorce  can  be  obtained  although  some  of 
the  evidence  may  tend  to  establish  incurable  impotence  at 
the  time  of  the  marriage.  Or  a  cause  for  dissolution  will 
exist  if  either  party  deserts  the  other  for  the  necessary 
period. 

Whether  the  marriage  be  annulled  or  dissolved  the  law 
has  granted  a  remedy  upon  the  broad  ground  that  the  prin- 
cipal ends  of  paarriage  are  copula  and  procreation.  The 
old  writers  gave  as  reasons  the  design  of  "  having  offspring  " 
and  " avoiding  fornication,"  "to  prevent  licentiousness," ' 
and  "  the  pleasures  and  enjoyments  of  matrimony."  ^  So 
the  test  of  impotence  is  not  f ruitfulness  or  sterility,'  it  is 
the  ability  for  copula.  Whien  this  is  lacking,  sterility  gen- 
erally exists,  but  not  always.*  Imperfect  copula  must  be  of 
such  a  degree  as  to  be  unnatural  and  disgusting  to  both.* 
The  best  interests  of  society  are  not  advanced  by  "  retain- 
ing within  the  marriage  bonds  parties  driven  to  such  dis- 
gusting practices.  Certainly  it  would  not  tend  to  the  pre- 
vention of  adulterous  intercourse,  one  of  the  greatest  evils 
to  be  avoided."  * 

Jurisdiction  to  annul  a  marriage  on  the  ground  of  impo- 
tence must  be  conferred  by  statute.'  In  the  absence  of 
statute  a  court  of  equity  will  not  annul  a  marriage  for  a 
cause  which  renders  it  voidable  and  not  void.'  A  court  of 
equity,  if  without  statutory  jurisdiction  to  annul  marriage 

iDeaneu  Aveling,  IRob.  Eo.  379;  5  Lewis  u  Hay  ward,  4  Swab.  & 

B.  V.  B.,  1  Spinks,  348;  Briggs  v.  T.  115. 

Morgan,  3  Phillim.  325.  6t)r.    Lushington    in    Deane    v. 

2  a  V.  a.,  3  P.  &  M.  287.  Aveling,  1  Eob.  Ec.  379.    See,  also, 

3  Deane  v.  Aveling,  1  Rob.  Ec.  similar  Reasons  given  in  Gr.  v.  G.,. 
279.  33  Md.  401. 

<  Bishop,  Mar.,  Sep.  &  Div.,  §§  774^       ^  Anon.,  34  N.  J.  Eq.  19. 
775.  Hd. 


§§  6T6-679.]  mpoTENOT.  617 

for  this  cause,  will  not  assume  jurisdiction  on  the  ground  of 
fraud.^ 

§  676.  Impotency  defined. —  Impotency,  to  be  a  cause  for 
annulment  or  dissolution  of  the  marriage,  is  such  incurable 
physical  incapacity  of  one  of  the  parties  as  prevents  true 
and  natural  copulation.  The  copulation  which  is  referred 
to  is  copula  vera,  not  partial,  imperfect  or  unnatutal.^  The 
incapacity  must  exist  at  the  time  of  the  marriage.'  If  it 
arises  subsequent  to  the  marriage  the  divorce  should  not  be 
granted,  for  then  the  essential  element  of  fraud  and  imposi- 
tion is  lacking.*  The  term  "  naturally  impotent "  is  said  to 
mean  incurably  impotent,  and  from  natural  causes,  and  not 
from  accident,  disease  or  self -abuse.' 

§677.  Physically  incapacitated. —  A  statute  which  pro- 
vides that  either  party  is  entitled  to  a  divorce  "  when  the 
other  party  was,  at  the  time  of  the  marriage,  physically  and 
incurably  incapacitated  from  entering  into  the  marriage 
state,"  is  held  to  denote  the  same  physical  incapacity  as  im- 
potence. The  term  "  impotent "  means  powerless  or  wanting 
in  physical  power  to  consummate  the  marriage.* 

§  678.  Matrimonial  incapacity. —  Under  a  statute  allow- 
ing divorce  for  "  matrimonial  incapacity  at  the  time  of  the 
marriage,"  the  pregnancy  of  the  wife  before  marriage  is  held 
a  "matrimonial  incapacity,"  where  the  husband  was  not 
aware  of  her  condition  and  had  no  criminal  connection  with 
her.''  This  is  a  most  liberal  interpretation  of  the  term 
"matrimonial."  Matrimonial  incapacity  would  doubtless 
include  all  physical  incapacities  to  enter  into  the  marriage 
relation. 

§  679.  Physically  incapable. —  The  fact  that  the  woman 
was  pregnant  at  the  time  of  her  marriage  is  not  a  ground 

i§683.  5  Griffith  V.   Griffith,  55  IlL  Ap. 

2  Payne  v.  Payne,  46  Minn.  467,  474. 

49  N.  W.  330.  «  Anonymous,  89  Ala.  391,  7  So. 

s  PoweU  V.  Powell,  18  Kan.  371.  100. 

*  Bascomb  v.  Bascomb,  5  Foster,  ''  Caton  v.  Caton,  6  Mackey,  309. 
267  (1853),  reviewing  authorities. 


■618  IMPOTENOT.  [§  680. 

for  annulment  of  marriage  imder  section  82  of  the  Civil  Code 
of  California,  providing  for  such  relief  when  "either  party- 
was,  at  the  time  of  the  marriage,  physically  incapable  of  en- 
tering into  the  married  state,  and  such  incapacity  continues, 
and  appears  to  be  incurable,"  as  this  clause  includes  only 
such  physical  defect  or  incurable  disease  existing  at  the  time 
of  marriage  as  will  prevent  sexual  intercourse.' 

§  680.  Must  be  permanent  or  incurable.—  Generally  the 
courts  require  some  proof  that  the  impotence  is  permanent 
or  incurable.^  And  it  was  once  asserted  that,  if  the  defect 
could  be  removed  without  serious  danger,  it  would  not  be  a 
ground  of  nullity,  though  the  party  refuses  to  submit  to  a 
surgical  operation.'  The  reason  assigned  was  that,  if  the 
law  were  otherwise,  a  party  might,  by  being  impotent  or 
incapable,  as  she  chose,  thus  affirm  or  deny  the  marriage. 
But  this  objection  requires  the  impossible  of  the  capable 
party  who  is  seeking  relief,,  since  he  cannot  compel  the  op- 
eration. Something  similar  occurs  in  a  case  of  desertion,  as 
the  deserter  may  return  or  not,  as  he  chooses;  thus,  at  his 
own  election,  rendering  the  dissolution"  of  the  marriage  pos- 
sible or  impossible.  It  is  clear  from  the  authorities  that  re- 
lief was  not  denied  the  capable  party  because  the  impotent 
would  not  submit  to  treatment.  Thus,  where  the  marriage 
had  not  been  consummated  after  two  years  and  ten  months' 
cohabitation,  a  decree  was  granted,  although  the  husband 
might  have  overcome  the  hysteria  had  the  wife  taken  the 
prescribed  remedies.*  Where  the  operation  might  have  been 
successful  had  the  woman  submitted  to  it,  the  court  granted 

iFranke  v.  Franke  (Cal.),  31  P.  mous,  10  W.  N.C.  569;  Anonymous, 

571,  distinguishing  Baker  ij.  Baker,  11  W.  N.  C.  479;   Roe  v.  Roe,  29 

13  Cal.  87.  Pitts.  Leg.  J.  319;  Anonymous,  35 

2  Payne  v.  Payne,  46  Minn.,  467,  Ala.  226. 

49  N.  W.  280;  D.  v.  A.,  1  Rob.  Eo.  SDevanbaugh  v.  Devanbaugh,  6 

279;  Ferris  v.  Ferris,  8  Conn.  166;  Paige,  175. 

Bascorab    v.   Basoomb,    5    Foster  ^G.  v.  Q.,  3  P.  &  M.  387.    See, 

<N.  H.),  267;  G.  v.  G.,  33  Md.  401;  also,  P.  v.  L.,  3  P.  D.  73;  W.  v.  H.,  3 

Norton  v.  Norton,  2  Aikens,  188;  Swab.  &  T.  340. 
Anonymous,  89  Ala.  291;  Anon}- 


§  681.J  mpoTENOT.  619 

the  husband  a  decree,  saying  that  "  the  court  cannot  compel 
her  to  submit,  and  the  man  can  onty  be  expected  to  take  all 
reasonable  means, to  persuade  her.  This  he  has  done,  and 
she  has  distinctly  refused."  ^  The  wife  may  obtain  a  decree 
of  nullity  on  account  of  the  husband's  impotence,  because 
such  impotence  proceeds  from  self-abuse  and  is  curable  by 
the  exercise  of  self-restraint.  His  failure  "to  exercise  such 
restraint  will  not  affect  her  right  to  a  decree.^ 

§  681.  Forms  of  impotence. —  No  particular  form  of  im- 
potence is  necessary.  It  may  be  any  form  which  prevents 
natural  copulation  and  is  incurable.  Deformities  are  an 
uncommon  form  of  impotence,  and  but  a  few  instances  are 
to  be  found  among  the  reported  cases.'  Sometimes  the 
form  is  that  of  arrested  development  of  the  wife's  organs, 
which  is  generally  incurable.^  The  most  common  form  is 
that  of  frigidity  or  latent  incapacity  of  the  husband.'  The 
extreme  physical  sensibility  and  hysteria  of  the  wife  may 
be  so  incurable  as  to  prevent  intercourse,  and  is  then  a  form 
of  physical  incapacity.'  A  long  period  of  cohabitation  is 
required  to  prove  that  such  condition  is  incurable ;  but  it 
seems  that  in  one  case  a  triennial  cohabitation  was  not  re- 
quired, two  years   and  ten  months  being  held   sufficient. 

1 L.  V.  L.,  7  P.  D.  16.  »  G.  V.  M.,  10  Ap.   Cas.  171;  F.  v. 

^F.v.  D.,  4  Swab.  &  T.  86;  S.  v.  D.,  4  Swab.   &  T.   86;  Lorenz  u 

E.,  3  Swab.  &  T.  240.  Lorenz,  93  111.  376;  A.  v.  A.,  19  L. 

3  In  Briggs  v.  Morgan,  3  Phillim.  E.  (Ireland),  403.    This  form  may 

335;  B.  V.  B.,  1  Spinks,  248;  W.  v.  arise  from  self -abuse,    SeeS.  i;.  E.,3 

R.,  1  P.  D.  405,  the  wife's  malforma-  Swab.  &  T.  240;  F.  v.  D.,  4  Swab, 

tion  was  alleged.    In  Peipbo  v.  Pei-  &  T.  86;  Griffith  v.  Griffith,  55  IlL 

pho,  88  IlL  438,  the  husband  alleged  Ap.  474.    In  Anon.,  89  Ala.  291,  7 

that  his  wife  was  a  hermaphro-  So.  100,  the  wife  complained  of  the 

dite,  and  incapable  of  intercourse  abnormal  proportions  of  the  hus- 

when    sexually  excited.     In    one  band's  organs, 
case  the  husband  alleged  that  the        «  H.  v.  P.,  3  P.  &  M.  126;  G.  v.  G., 

wife's  vagina  was  closed.    Kempf  2  P.  &  M.  287;  S.  v.  A.,  3  P.  D.  72; 

V.  Kempf,  34  Mo.  211.  Merrill  v.  Merrill,  126  Mass.  228;  L. 

*  G.  V.  G.,  33  Md.  401 ;  S.  v.  A.,  3  v.  L.,  7  P.  D.  16. 
P.  D.  72.    And  see  P.  v.  L.,  in  note, 
a  P.  D.  78. 


620  iMPOTEKCT.  [§§  682,  GSS. 

Since  this  is  a  nervous  and  not  a  structural  defect,  it  should 
be  established  by  clear  and  satisfactory  evidence  that  the 
disease  will  not  yield  to  skilful  treatment,  and  that  the  dif- 
ficulty is  not  a  mere  wilful  refusal  of  intercourse. 

§  682.  Refusing  intercourse. —  The  fact  that  the  wife- 
refuses  all  attempts  to  have  sexual  intercourse,  assigning  no 
reason  for  such  refusal,  and  admits  her  incapacity,  but  re- 
fuses to  submit  to  the  examination  of  physicians,  is  not  suf- 
ficient evidence  to  justify  a  finding  that  she  is  impotent.' 
But  if  the  husband  has  attempted  intercourse,  and  found  it 
impossible,  and  the  wife  becomes  hysterical  and  resists  all 
further  attempts,  a  decree  will  be  granted  although  she  de- 
nies the  incapacity.^  If  the  intercourse  has  taken  place  at 
one  time,  her  subsequent  refusal  is  not  to  be  considered  as 
evidence  of  impotence.' 

§  683.  Impotence  as  a  fraud. —  Unless  the  impotence  is 
unknown  to  the  incompetent  party,  he  or  sl^e  commits  a 
fraud  upon  the  competent  party  by  entering  into  a  relation 
the  duties  of  which  cannot  be  fulfilled.  Sometimes  the 
transaction  is  viewed  in  this  light.*  But  it  is  not  a  fraud  in 
the  ordinary  sense  giving  the  right  of  rescission  or  action  for 
damages.^  And  if  the  parties  continue  cohabitation,  this 
will  not,  as  in  a  case  of  fraud,  be  considered  a  bar,  but  is 
additional  proof  that  a  consummation  has  been  attempted. 
Even  cohabitation  during  suit  is  not  a  bar  to  this  proceed- 
ing.' Although  courts  of  equity  may  have  jurisdiction  to 
annul  marriages  for  fraud  and  other  causes  rendering  the 
marriage  absolutely  void,  it  is  held  that  impotence  is  not 
such  a  fraud,  and  that  no  relief  can  be  granted  for  such 
cause  unless  authorized  by  statute.'' 

1  Merrill  v.  Merrill,  126  Mass.  228.    tract."    Benton  v.  Benton,  1  Day, 

2  P.  V.  L.,  note  in  S.  v.  A.,  3  P.  D.  111.  But  see  Guilford  v.  Oxford,  9 
72:  H.  V.  P.,  3  P.  &  M.  12C.  Conn.  321.    See,  also,  disease  as  'a. 

3  S.  V.  A.,  3  P.  D.  72.  fraud,  Myer  v.  Myer,  49  How.  Pr.  311. 
*  Basoomb  v.  Bascomb,  5  Foster        5  gge  Burtis  r.  Burtis,  1  Hopkins,- 

(N.  H.),  267.    In  Connecticut  the    557 ;  Perry  r.  Perry,  2  Paige,  501. 
marriage  of  an  impotent  person  is        '>M.  v.  H.,  3  Swab.  &  T.  592. 
considered  as  a  "fraudulent  con-        'Burtis  v.  Burtis,  1  Hopkins  Ch^ 


§§  684-687.]  iMPOTEKCT,  621 

§  684.  What  will  bar  the  action  —  Adultery  not  a  bar. 

In  a  nullity  suit  adultery  or  other  recrimination  is  not  a  bar, 
since,  the  marriage  being  null,  the  cause  for  divorce  cannot 
be  considered,  as  no  marriage  obligations  were  violated.' 

§  685.  Age  of  parties. —  The  inspection  of  the  person  is 
deemed  more  odious  as  the  party  increases  in  years ;  and  as 
the  suit  is  supposed  to  be  based  upon  injuries  arising  from 
the  inability  to  copulate,  the  age  of  the  parties  sometimes 
bars  the  suit.^  There  is,  however,  no  particular  age  which 
will  bar  the  suit.'  "Where  the  wife  waited  twenty-seven 
years  after  the  marriage  before  bringing  suit  to  annul  the 
marriage,  this  delay  and  her  own  age  were  sufficient  to 
prevent  a  decree.  She  was  in  her  fortyreighth  year,  "  an 
age  when  neither  the  procreation  of  children  nor  the  grati- 
fication of  the  passions,"  the  usual  motives  which  lead  to 
the  institution  of  such  suits,  were  present.^ 

§  686.  Deed  of  separation  not  a  bar. —  Although  a  deed 
of  separation  is  entered  into  deliberately  and  with  full 
knowledge  of  all  the  facts  with  the  express  purpose  of  pre- 
venting a  scandalous  litigation  and  needless  exposure,  such 
agreement  will  not  bar  a  divorce  for  impotence.  To  hold 
such  agreement  binding  would  be  "  alike  unjust  and  against 
reason  and  public  policy."  *  But  Avhere  the  manifest  purpose 
of  such  suit  was  to  escape  liability  under  the  agreement  and 
there  had  been  a  delay  of  eight  years,  a  suit  was  dismissed 
for  insincerity.* 

§  687.  Recrimination  not  a  bar. —  If  the  marriage  can- 
not be  consummated  on  account  of  the  impotence  of  one  of 

(N.  Y.)  557.     See,  also,   Perry  v.  for  divorce  on  account  of  the  wife's 

Perry,  3  Paige,  501.  adultery. 

1  McCarthy  v.  De  Caix,  2  CI.  &  F.  2Shafto  v.  Shafto,  38  N.  J.  Eq. 

568;  M.  V.  D.,  10  P.  D.  75,  175;  G.  v.  34;  Fulmer  v.  Fulmer,  36  Leg.  Int. 

JL.  10  Ap.  Cas.  171;  A.  B.  v.  C.  B.,  (Pa.)  98. 

11  Scotch  Sess.  Cas.  (4th  Ser.)  1060;  '  W.  v.  H.,  3  Swab.  &  T.  340. 

s.  C,  C.  B.V.  A.  B.,  13  id.  (H.  L.)  86.  *  W.  v.  R,  1  P.  D.  405. 

In  Griffin  v.  Griffin,  38  How.  Pr.  ^G.  v.  G.,  38  Md.  401  (1870). 

189,  it  was  held  that  the  husband's  «  M.  v.  C,  3  P.  &  M.  414. 
impotenoy  was  no  bar  to  his  suit 


622  iMPOTENcr.  [§  688-- 

the  parties,  the  law  does  not  refuse  a  divorce  on  the  ground 
that  the  competent  party  is  guilty  of  some  misconduct  which 
entitles  the  other  to  a  divorce.^  This  form  of  suit  proceeds 
upon  the  theory  that  the  marriage  is  voidable  on  account  of 
physical  defects,  and  not  upon  the  theory  that  a  marital 
wrong  has  been  committed. 

§  688.  Delay. —  We  have  considered  the  effect  of  delay 
in  reference  to  actions  for  divorcfe,  and  some  differences  will 
be  noticed  here,  as  they  apply  to  the  suit  for  nullity  on  ac- 
count of  impotence.  No  particular  period  of  time  is  held  ta 
be  an  unreasonable  delay,  but  each  case  depends  upon  its 
own  merits.^  Where  a  wife  brought  suit  twenty-one  years 
after  separating  from  her  husband  and  twenty-five  yeara 
after  marriage,  it  was  a  disputed  question  whether  such 
delay  would  bar  the  suit.  A  majority  of  the  court  held  that 
a  decree  should  be  refused.'  The  wife  is  not  required  to  b& 
as  prompt  in  bringing  suit  as  her  husband,  yet  a  delay  of  ten 
years  is  too  great.*  ITo  objection  in  one  case  was  made  to 
her  delay  of  twelve  years.'  A  husband's  delay  of  seven 
years  was  not  a  bar.*  And  in  one  case  a  delay  of  seventeen 
years  was  permitted.''  The  period  within  which  suit  for  this 
cause  can  be  brought  is  fixed  by  statute  in  some  of  the 
states.^  Where  all  attempts  at  consummation  are  repulsed 
by  the  wife  for  a  period  of  five  years,  when  her  incapacity 

1  McCarthy  v.  De  Caix,  3  CI.  &  F.  firmed  on  appeal,  Castleden  v.  Cas^ 
568;  Miles  v.  Chilton,  1  Rob.  Ec.    tleden,  9  H.  L.  Cas.  186. 

684  ^Lorenz  v.  Lorenz,  93IU.  376. 

2  Harris  v.  Ball,  cited  in  Norton  ^  PoUard  v.  Wybourn,  1  Hag.  Eo. 
V.  Seaton,  3  PhilUm.  147;  Cuiio  v.    735. 

Cuno,  3  H.  L.  Sc.  300;  S.  v.  A.,  3  6  Guest  v.  Shipley,  2  Hag.  Con.  331.. 

P.  D.  73:  Anonymous,  Deane  &  S.  '  Langevin  v.  Barette,  4  Rev.  Leg. ' 

295;  B.  N.  v.  B.  N.,  1  Spinks,  348;  (Quebec),  160. 

B.  V.  M.,  3  Rob.  Ec.  580;  M.  v.  B..  3  » Generally  the    period    is    two 

Swab.  &  T.  550;  T.  v.  D.,  1  P.  &  M.  years  after  the  marriage.   Arizona, 

127;  W.u  R.,  IP.  D.  405;  Harrison  Michigan,   New    York,   Nebraska, 

u.  Harrison,  3  Swab.  &  T.  863;  M.u  Vermont,  Wyoming.    In  Calif or- 

D.,  10  P.  D.  75;  G.  v.  M.,  10  Ap.  Cas.  nia.  North  and  South  Dakota  and 

171.           '  Idaho  the  action  must  be  within 

3H.  V.  C,  1  Swab.  &  T.  605;  af-  four  years. 


§  689.]  IMPOTBNOT.  62S 

was  discovered,  and  twelve  years  after  the  marriage  she 
su  bmitted  to  an  unsuccessful  operation,  a  delay  of  two  years 
after  the  operation  did  not  bar  the  husband's  suit.'  "Where 
the  husband's  application  was  not  made  until  thirteen  years 
after  the  marriage  and  several  years  after  the  wife  had  be- 
come insane,  and  while  she  was  in  an  insane  asylum,  the 
court  held  the  delay  too  great.  "  For  nearly  eight  years 
the  complainant  cohabited  with  appellee,  with  full  knowl- 
edge and  without  complaint  of  this  cause.  In  the  absence 
of  strong  rebutting  facts,  he  must  be  taken  to  have  accepted 
the  situation,  and  cannot  now  be  heard  to  complain.  Mere 
motives  of  delicacy  are  not  a  sufficient  explanation  of  such 
long-continued  acquiescence."  ^  A  delay  of  five  years  was 
explained  by  the  fact  that  complainant  was  restrained  by 
conscientious  scruples  from  seeking  a  divorce  and  supposed 
it  to  be  inconsistent  with  his  religious  duty ;  and  a  divorce 
a  vinculo  was  granted  although  the  parties  had  entered  into 
a  deed  of  separation.' 

§  689.  Insincerity.  —  It  was  a  rule  of  the  ecclesiastical 
courts  to  refuse  to  annul  a  marriage  where  it  appeared  that 
the  plaintiff  prosecuted  the  stiit  for  some  collateral  motive 
other  than  the  real  cause  of  complaint.  Thus,  where  a 
party,  aftef  some  delay,  brings  the  suit  because  the  husband 
has  ceased  to  support  her ;  *  or  because  the  annulment  will 
relieve  from  the  liability  of  further  support ;  *  or  to  silence 
reports  that  complainant  is  insane,*"  the  court  wiU  not  grant 
a  decree  because  the  real  grievance  is  not  a  failure  to  have 
sexual  intercourse.^  This  doctrine  of  "  insincerity  "  was  ap- 
plied with  such  strictness  as  to  be  productive  of  much  injus- 
tice, and  has  been  criticised  as  severe  and  a  fruitless  attempt 
to  discern  aU  the  motives  of  the  plaintiff.*  The  presence  of 
collateral  motives  should  not  bar  the  remedy  where  there  is 

1  A.  B.  u  C.  B.,  84  N.  J.  Eq.  43.  5  m.  v.  C,  3  P.  &  M.  414 

aPeipho  v.  Peipho,  88  111.  438.  ^M.  v.  B.,  3  Swab.  &  T.  550. 

3  G.  V.  G.,  33  Md.  401.  ">  W.  v.  R,  1  P.  D.  405. 

■•Castleden  v.  Castleden,  9  H.  L.  ^G.v.  M.,  10  Ap.  Cas.  171. 
Cas.  186. 


624  iMPOTENCT.  [§§  690,  691. 

a  cause  of  action  established  by  satisfactory  evidence.  The 
doctrine  has  not  been  affirmed  in  any  American  cases,  and 
it  is  safe  to  say  that  a  suit  to  annul  a  marriage  will  not  be 
■dismissed  because  the  unfortunate  party  desires  to  recover 
aU  her  separate  property,  to  vindicate  her  reputation,  to 
avoid  a  cohabitation  which  threatens  to  injure  her  health, 
or  to  marry  another,  or  in  fact  for  any  other  collateral  pur- 
pose which  is  recognized  by  the  law  and  for  which  a  remedy 
has  been  provided  in  other  cases.  But  where  there  has  been 
delay,  and  this  combined  with  collateral  purpose,  the  case  is 
then  governed  by  different  considerations. 

§  690.  Estoppel  —  Impotent  party  as  plaintiff. —  It  is  a 
principle  of  justice  and  reason  that  no  man  can  take  advan- 
tage of  his  own  wrong,  and  a  party  who  is  conscious  that 
he  has  some  incurable  defect  cannot  enter  into  the  marriage 
relation  and  afterwards  have  the  marriage  declared  nuU.' 
If  the  marriage  with  an  impotent  party  was  void  instead  of 
voidable,  other  reasons  would  apply ;  as  where  the  courts 
relieve  the .  parties  from  a  bigamous  marriage.''  But  the 
wife  may  choose  to  live  with  the  impotent  husband,  and 
then  he  cannot  avoid  the  duties  of  the  marriage,  such  as 
support  and  cohabitation,  by  having  the  marriage  annulled. 
If,  after  unsuccessful  attempts  to  consummate  the  marriage, 
the  wife  deserts,  the  husband  should  not  be  precluded  from 
obtaining  a  decree  annulling  the  marriage,  where  he  was  at 
the  time  of  the  marriage  unconscious  of  his  frigidity  and 
consequent  impotence.^ 

§  691.  Pleading  —  In  general. —  The  complaint  must 
allege  the  marriage ;  the  peculiar  form  of  the  physical  in- 
capacity in  such  specific  language  as  to  show  that  natural 
copulation  is  impossible ;  that  the  defect  existed  at  the  time 

1  Norton  v.  Seaton,  3  Phillim.  147  cree  made  absolute,  and  the  appli- 

(1820).    In  H.  V.  B.,  6  P.  D.  13,  a  de-  cation  of  co-respondent  for  that 

cree  of  nuUity  had  been  entered  purpose  was  denied, 

on  account  of  the  cruelty  and  im-  ^  Miles  v.  Chilton,  1  Rob.  Eo.  684. 

potence  of  the  co-respondent.    The  '  A.  v.  A.,  19  L.  R.  (Ireland),  403. 
petitioner  refused  to  have  this  de- 


§  692.] 


IMPOTENCr. 


■of  the  marriage ;  and  is  incurable.^  rrand,  not  being  an  es- 
sential element  in  this  cause  of  action,  need  not  be  alleged, 
i^or  is  it  necessary  in  aU  cases  that  the  woman  allege  that 
she  is  a  virgin  and  capable.  Her  capacity  is  presmned  and 
is  therefore  not  a  necessary  averment.  Her  virginity  is 
l)roperly  alleged  if  such  is  the  case,  but  relief  wiU  not  be  de- 
nied should  the  evidence  show  that  she  has  had  children  by 
a  former  marriage,  or  where  she  has  comm.itted  adultery. 
The  age  of  the  parties  is  usually  alleged,  but  the  omission  of 
this  fact  would  not  render  the  pleading  demurrable. 

§  692.  How  impotency  alleged. —  The  following  form 
contains  all  the  necessary  averments,  and  is  probably  suffi- 
cient under  the  rules  of  code  pleading.^  To  this  form  an  alle- 
gation may  be  added  "  that  plaintiff  is  a  virgin  and  unknown 
•of  man  "  if  such  is  the  fact.  But  such  allegation  is  not  a 
necessary  one,  and  is  perhaps  objectionable  as  alleging  evi- 
■dence  of  the  husband's  impotence,  a  fact  already  stated  in 
this  pleading.' 


1  Under  a  statute  perraitting  a 
sentence  of  nullity  "when  either 
party  at  the  time  of  the  marriage 
Tvas,  and  still  is,  impotent,"  an  al- 
legation that  "  the  defendant  was, 
and  still  is,  impotent,  in  that  the 
mouth  of  the  vagina  of  the  said 
Margaret  was  and  still  is  closed,  so 
as  to  prevent  copulation,"  was  held 
sufficient,  as  the  term  "  impotent " 
implies  "incurability."  Kempf  v. 
Kempf,  34  Mo.  311.  The  term  "  cor- 
poral imbecility "  is  not  a  suffi- 
cient term  to  denote  an  incurable 
physical  incapacity  to  consummate 
the  marriage.  Ferris  i'.  Ferris,  8 
Conn.  166. 

2  That  on  the  day  of  , 

,  the  plaintiff,  whose  maiden 

name  w^as  A.,  married  the  defend- 
a,nt  B.,  and  cohabited  with  him 
from  said  date  until  the  day  of 

40 


That  at  the  time  of  said  mar- 
riage the  defendant  was,  and  has 
ever  since  continued  to  be,  impo- 
tent, by  reason  of  (here  state  the 
nature  of  physical  incapacity), 
and  that  said  incapacity  is  incur- 
able. 

That,  on  account  of  said  physical 
incapacity,  the  defendant  has  been, 
and  is  now,  unable  to  consummate 
said  marriage,  although  the  plaint- 
iff is  apt  and  willing  to  do  so. 

3  In  Serrell  v.  Serrell,  2  Swab.  & 
T.  422,  the  husband  asked  for  a  dis- 
solution of  the  marriage  on  ac- 
count of  the  wife's  adultery.  The 
wife,  in  her  answer,  denied  that 
she  was  lawfully  married  to  plaint- 
iff, and  pleaded  his  impotence  in 
the  following  language:  "That  at 
the  time  of  the  celebration  of  the 
said  pretended  marriage  on  the 
5th  of  November,   1844,   the  said 


626 


rMPOTENCT. 


[§§  693,  69^- 


§  693.  Different  forms  of  impotence  may  be  joined. — 

Different  forms  of  incapacity  may  be  .joined  so  long  as  they 
are  not  in  their  nature  inconsistent.  Thus,  malformation 
may  be  alleged  with  frigidity  resulting  from  or  existing  with 
it.^  The  following  petition  is  an  illustration  of  the  method 
of  alleging  the  incapacity,  first,  as  a  malformation,  and  sec- 
ond, as  a  weakness  or  frigidity  of  the  parts  of  generation.^ 
§  694.  Evidence  —  In  general. — The  proof  must  be  satis- 
factory and  as  direct  as  is  possible  under  the  circumstances, 
of  the  case.  The  impotence  of  the  husband  may  be  shown 
by  proving  cohabitation  and  that  the  wife  remains  a  virgin.' 
But  the  signs  of  virginity  are  uncertain,^  and  there  are  many 


S was  impotent,  and  unable  to 

consummate  their  said  marriage; 
that  sudh  impotency  was  then, 
and  now  is,  incurable;  that  not- 
withstanding the  said  S con- 
sulted divers  medical  men,  and 
adopted  divers  remedies,  be  con- 
tinued impotent,  unable  to  con- 
summate the  said  marriage;  and 
that,  although  the  respondent  was 
apt  and  willing  to  receive  the  con- 
jugal embraces  of  the  said  S , 

he  never  did  consummate  the  said 
marriage;  but  that,  down  to  the 
8th  of  January,  1861,  when  the  re- 
spondent ceased  to  reside  with  the 

said  S ,  she  was  and  continued 

to  be  a  virgin  intact."  The  prayer 
of  the  answer  was  for  annulment 
of  marriage.  The  above  pleading 
would,  under  the  rules  of  code 
pleading,  be  open  to  the  objection 
that  the  nature  of  the  incapacity 
is  not  stated,  and  it  is  indefinite  in 
that  respect.    See  above  form. 

1  Welde  V.  Welde,  2  Lee,  578. 

2 "  First,  that  on,  etc.,  the  peti- 
tioner being  about  twenty-four 
years  of  age  and  the  respondent 


twenty-six  (proceeding  to  allege 
the  marriage  and  cohabitation). 

"  Second,  that  from  the  said  date 
the  petitioner  lived  with  the  said  re- 
spondent at,  etc.,  but  that  the  said 
respondent  was  at  said  date,  and 
has  ever  since  continued  to  be, 
wholly  unable  to  consxmimate  his 
said  marriage  by  reason  of  the 
malformation  of  his  parts  of  gen- 
eration, and  that  such  malformar 
tion  is  incurable  by  art  or  skill. 

"  Third,  that  the  said  respondent 
was,  at  the  time  of  the  said  mar- 
riage, and  has  ever  since  continued 
to  be,  wholly  unable  to  consum- 
mate the  said  marriage  by  reason 
of  the  frigidity  and  impotence  of 
his  parts  of  generation,  and  that 
such  frigidity  and  impotence  of 
his  parts  of  generation  are  wholly 
incurable  by  art  or  skill."  M.  v.  H., 
3  Swab.  &  T.  517;  S.  a,  Marshall  v. 
Hamilton,  10  Jur.  (N.  S.)  853. 

8M.  V.  H.,  3  Swab.  &  T.  517;  M. 
V.  B.,  3  Swab.  &  T.  550;  Pollard  v. 
■Wyborn,  1  Hagg.  Eo.  725;  Anon., 
11  W.  N.  Cas.  479;  Grimbaldeston 
V.  Anderson,  cited  in  3  Phillim.  155, 

<  S.  V.  E.,  3  Swab.  &  T.  240. 


§  694.J  IMPOTENOY.  627 

cases  where  the  husband  was  shown  to  be  impotent  and  the 
marriage  annulled,  although  the  signs  of  virginity  were 
doubtful.'  And  in  one  case  it  was  established  by  medical 
testimony  that  the  hymen  may  remain,  although  the  mar- 
riage is  consummated.^  In  another  a  decree  was  granted 
the  wife  where  there  was  a  triennial  cohabitation,  and  proof 
that  the  husband  had  admitted  his  impotency,  although 
there  was  no  proof  of  wginity,  and  the  husband  denied  his 
incapacity  in  the  answer.'  The  admission  of  the  defendant 
and  the  testimony  of  the  plaintiff  has  been  held  insufficient 
where  the  physician's  testimony  is  equivocal  and  the  inca- 
pacity, if  it  existed,  was  latent.*  "Where  the  testimony  of 
the  parties  is  contradictory  and  the  testimony  of  the  physi; 
cians  leaves  the  question  of  her  virginity  in  doubt,  the  suit 
should  be  dismissed  for  lack  of  evidence.*  If  the  evidence  is 
not  clear  the  courts  inquire  into  the  motives  of  the  parties,, 
the  date  when  complaint  of  the  impotence  was  first  made  to 
others,  and  any  conduct  of  the  parties  which  may  account 
for  the  suit  being  brought  on  account  of  collateral  mo- 
tives. In  such  cases  the  court  looks  at  all  the  circum- 
stances and  the  conduct  of  the  parties  for  corroboration. 
In  one  case  the  inquiry  was,  when  did  the  petitioner  first 
become  aware  of  the  alleged  deficiencies  of  her  husband  and 
how  did  she  conduct  herself  upon  that  discovery  ?  ®  The 
fact  that  the  wife  lives  with  her  husband  for  ten  years  with- 
out complaint  is  considered  a  suspicious  circumstance  tending 
to  show  that  her  testimony  is  a  fabrication.'.  The  birth  of  a 
child  is  sufficient  evidence  to  disprove  her  physical  incapacity.* 

1 T.  V.  D.,  1  P.  &  M.  137;  L.  v.  H.,  or  the  contrary;  but  there  are  de- 

4  Swab.  &  T.  115;  F.  v.  D.,  4  Swab,  cidedly  no  physical  impediments. 

&  T.  86.  to  sexual  intercourse."    See  this 

2  L.  V.  H.,  4  Swab.  &  T.  115.  case  affirmed,  Harrison  v.  Harri- 

3  Sparrow  v.  Harrison,  3  Curt.  Ec.  son,  4  Moore,  P.  C.  96. 

16.    The  report  of  the  physicians        *  Lorenz  v.  Lorenz,  93  IlL  876. 
was  as    follows:     "The    signs  of       5 XJ.  v.  J.,  1  P.  &  M.  460. 
virginity  are  in  many  instances        *  Cuno  v.  Cuno,  3  P.  &  M.  414. 
inconclusive.    In  the  present  case        '  Lorenz  v.  Lorenz,  93  111.  376. 
there  are  no  positive  proofs  of  con-        ^  Riley  v.  Riley,  26  N.  Y.  Supp. 

nection  having  ever  taken  place,  164,  73  Hun,  694. 


628  iMPOTENCT.  [§§  695,  696. 

§  695.  Burden  of  proof. —  The  burden  of  proof  is,  of 
course,  with  the  party  alleging  the  impotence,  and  the  evi- 
dence must  establish  its  existence  at  the  time  of  the  mar- 
riage, and  that  it  is  of  an  incurable  nature.'  The  evidence 
must  be  clear  and  satisfactory,  and  sufficient  to  convince  the 
court  that  the  incapacity  exists.  In  one  case  the  court 
granted  a  decree  upon  the  uncorroborated  testimony  of  the 
wife.-    Ordinarily  more  proof  wiU  be  required. 

§  696.  Triennial  cohabitation. —  It  was  a  rule  of  the 
canon  law,  recognized  by  the  ecclesiastical  courts,  that  where 
the  parties  after  marriage  have  lived  together  for  a  period 
of  three  years,  and  the  woman  can  show  that  she  is  virgo 
intacta,  the  impotency  of  one  of  the  parties  will  be  presumed 
in  the  absence  of  rebutting  proof.'  It  is  not  a  rule  of  law 
requiring  such  cohabitation  in  doubtful  cases,  but  is  a  mere 
rule  of  presumption  where  direct  evidence  is  not  before  the 
court.  If  the  parties  have  lived  together  in  the  same  house 
for  three  years,  under  ordinary  opportunities  for  inter- 
course, and  there  has  been  no  consummation,  the  impotency 
of  one  of  the  parties  is  presumed.  But  this  presumption 
may  be  rebutted.*  "Where  the  defect  is  obvious,  or  can  be 
proved  by  competent  testimony,  no  particular  period  of 
cohabitation  is  required  or  is  necessary.*    The  presumption 

iBrownuBrown,  IHag.Ec.  533;  325;  "Welde  ?;.  Welde,  3  Lee,  578. 

"Welde  u  Welde,  3  Lee,  578;  Devan-  This  requirement    seems  to  have 

baugh  u  Devanbaugh,  5  Paige,  554;  beeu  absolute  in  some  cases.    Ale- 

M.  V.  C  2  P.  &  M.  414.    See  same  son  v.  Aleson,  2  Lee,  576;  Lewis  v. 

case    afBrmed,   Cuno    v.   Cuno,   2  Lewis,  cited  Welde    v.  Welde,  3 

Scotch  Ap.  (H.  L.)  800;  Newell  v.  Lee,  579;  Gimbalderson  v.  Ander- 

NeweU,  9  Paige,  25.  son,  cited  in  Norton  v.  Seaton,  3 

2  Christman  v.  Christman,  7  Pa.  Phillim.    147.     In    Greenstreet  v. 

Co.  Ct.  Rep.  595.  Cumyns,  2  Phillim.  10,  it  is  con- 

3G.  V.  M.,  10  Appeal   Cases,  171  sidered  "a  well  known  and  valu- 

(1885);  Pollard  u  Wybourn,  1  Hag.  able  rule,  adopted  of  old  time  for 

Ec.  725.  the  guidance   of  the  court,  that 

''C.  B.v.K  B.,  12  Scotch  Sess.  impotence  shall  be  presumed  after 

Gas.  (4th  Ser.)  H.  L.  36.  three  years  of  ineffectual  cohabita- 

^Deane  v.  Aveling,  1   Rob.  Ec.  tion,  and  shall  not  be  presirmed 

379;  Briggs  v.  Morgan,  3  Phillim.  before."    See,  also,  U.  v.  F.,  2  Rob. 


§  697.]  IMPOTEXCY.  629 

from  triennial  cohabitation  may  be  applied  by  our  courts,  but 
ordinarily  the  evidence  will  be  sufficient  without  it.' 

Where  the  impotence  complained  of  is  the  result  of  self- 
abuse,  which  may  be  cured  by  self-restraint  and  proper 
treatment,  the  period  of  cohabitation  must  be  for  such  a 
length  of  time  as  to  show  that  the  weakness  is  incurable, 
because  the  defendant  Avill  not  submit  to  treatment  or 
abandon  the  habit.  A  cohabitation  of  only  two  months  is 
held  to  be  insufficient  in  such  cases.^ 

§697.  Inspection  of  the  person.— When  the  proofs  are 
doubtful,  the  court  may  order  an  inspection  of  the  person 
by  medical  experts,  who  examine  the  sexual  organs  of  the 
parties  and  report  whether  or  not  they  are  capable  of  mar- 
riage consummation.  The  ecclesiastical  courts  appointed 
three  persons  —  two  physicians  and  a  surgeon,  or  two  sur- 
geons and  a  physician.  These  were  nominated  by  the  plaint- 
iff or  promoter,  but  the  adverse  party  had  the  privilege  of 
choosing  one  of  them.'  It  seems  that  at  oue  time  the  woman 
was  examined  by  matrons  and  midwives.^ 

Ec.  614;  S.  V.  E.,  3  Swab.  &  T.  340;  child.    A  jury  of  matrons   were 

M.  V.  H.,  3  Swab.  &  T.  517;  F.  v.  D.,  sworn  to  inspect  her  person  and 

4  Swab.  &T.  86;  G.  u  G.,  3P.&  M.  report   the    result    to   the    court. 

287;  A.  r.  B.,  1  P.  &  M.  559;  N r  See  procedure  described  at  length 

V.  M — -e,  3  Rob.   Ec.   635;  s.  C,  in  Reg.  v.  Wycherley,  8  Carr.  &  P. 

Anon.,  22  Eng.  Law  &  Eq.  637;  A.  363  (1888);  Reg.n  Baynton,  17  How. 

V.  B.,  1  Spinks,  13.  St.  Tr.  598;  State  v.  Arden,  1  Bay 

iln  Anonymous,  89  Ala.  391,  7  (S.  C),  487;  Thompson  on  Trials, 

So.  100,  the  rule  was  not  applied  §  853.    This  method  of  inspection 

owing  to  the  form  of  the  statute,  has  been  condemned  by  such  mod- 

2  Griffith  V.  Griffith,  55  IlL  Ap.  ern  medical  authority  as  Beck  (see 

474;  S.  V.  E.,  3  Swab.  &  T.  340.  Med.  Jur.   203)  and  Taylor  (Med. 

'See  proceedings  in  full,  Deane  Jur.   154),    and    their   position    is 

V.  Aveling,  1  Rob.  Eo.  379.  amply  sustained  by  the  history  of 

4  Essex  V.  Essex,  3  How.  St.  Tr.  such  cases.     In  some  states  the 

786;  Welde  v.  Welde,  2  Lee,  580.  jury  is  required  to  be  in  whole  or 

This  proceeding  is   analogous  to  in  part  of  medical  men.    To  tlie 

that  pursued  in  the  common-law  objection  that  such  examinations 

courts  where  the  execution  of  a  were  offensive  and  obscene,  Lord 

death  sentence  was  suspended  if  Stowell    answered    that    "It    has 

the  woman  was  found  to  be  with  been  said  that  the  means  resorted  to 


630  IMPOTENCY.  [§  698. 

§  698.  The  power  of  our  courts  to  compel  inspection. — 

The  objection  has  been  raised  that  our  courts  have  no  power 
to  compel  an  inspection,  since  both  the  jurisdiction  and  in- 
cidental powers  are  conferred  by  statute,  and  no  other  or 
further  power  exists  unless  so  conferred.  The  answer  from 
the  court  to  this  objection  is  that  when  the  legislature  con- 
ferred upon  a  court  the  jurisdiction  to  annul  a  marriage  for 
impotenoy,  it  conferred  also  the  incidental  powers  necessary 
to  make  its  exercise  effectual.  If  the  court  has  no  power  to 
compel  the  inspection,  this  would  result  in  most  cases  to  an 
absolute  denial  of  justice,  for  in  the  very  nature  of  the  case 
no  other  evidence  can  be  obtained.  Therefore  the  courts 
may  exercise  the  incidental  powers  of  the  English  courts 
so  far  as  the  principles  and  practice  of  those  courts  are  ap- 
plicable to  the  conditions  and  circumstances  of  our  people.^ 
This  doctrine  is  sound,  and,  unless  the  common  law  on  this 
point  is  declared  inapplicable  to  the  conditions  and  wants  of 
the  people,  the  courts  having  jurisdiction  to  annul  a  marriage 
for  this  cause  have  also  the  power  to  compel  either  or  both 
parties  to  submit  themselves  to  an  examination  by  persons 
appointed  for  that  purpose.^ 

for  proof  on  these  occasions  are  of-  different  principle  from  that  which 

fensive  to  natural  modesty;  but  nat-  had   theretofore    existed  in  Eng- 

ure  has  provided  no  other  means,  land,  and  indeed,  in  all  Christian 

and  we  must  be  under  the  neces-  countries,  as  to  the  nature  and  ex- 

sity  of  saying  that  all  relief  shall  tent  of   the    physical   incapacity 

be  denied,  or  of  applying  the  means  which  would  deprive  one  of  4he 

within  our  power.    The  court  must  parties  of  the  power  to  contract 

not  sacrifice  justice  to  notions  of  matrimony.    And  the  court  is,  by 

delicacy  of  its  own."     Briggs  v.  necessary  implication,  armed  with 

Morgan,  3  Phillim.  335.  all  the  usual  powers  which  in  that 

1  See  Le  Barron  v.  Le  Barron,  35  country,  from  which  our  laws  are 

Vt.  365  (1862),  a  leading  case,  citing  principally    derived,    are    deemed 

Devanbaugh    v.    Devanbaugh,     5  requisite  to  ascertain  the  fact  of 

Paige,  554,  in  which  the  following  incapacity,  and  without  which  it 

language  of  Chancellor  Walworth  would  be  impossible  to   exercise 

is  found:   "When  the  legislature  such  jurisdiction.'' 

conferred  this  branch  of  its  juris-  2  This  power  was  not  questioned 

diction  upon  the  court  of  chancery,  in   the    following   cases:    Anony- 

it  was  not  intended  to  adopt  a  mous,  35  Ala.  236;  Anonymous,  89 


§  699.]  raroTEKCY.  631 

§  699.  Power  denied. —  "While  it  is  clear  that  the  com- 
mon-law courts  coiild  compel  either  or  both  parties  to  sub- 
mit themselves  to  an  examination  by  experts  appointed  by 
the  courts  for  that  purpose,  yet  our  courts  may  decline  to 
exercise  such  power,  because  such  an  extraordinary  remedy 
is  not  suited  to  the  condition  or  to  the  manners  of  the  peo- 
ple, and  not  consistent  with  modern  legislation  and  the 
right  of  personal  immunity.  The  right  to  exercise  this 
power  was  emphatically  denied  by  Cooley,  J.  "  It  should 
be  understood,"  said  he,  "  that  there  are  some  rights  which 
belong  to  men  as  men  and  to  women  as  women,  which  in 
civilized  communities ,  they  can  never  forfeit  by  becoming 
parties  to  divorce  or  any  other  suit,  and  there  are  limits  to 
the  indignities  to  which  parties  to  legal  proceedings  may  be 
lawfully  subjected."  ^ 

The  power  of  a  court  to  grant  an  order  compelling  a 
physical  examination  in  personal  injury  cases  has  been  often 
questioned  in  recent  decisions,  and  the  tendency  is  to  deny 
that  such  power  exists.  The  supreme  court  of  the  United 
States,  in  a  recent  opinion  exhausting  the  subject,  has  denied 
the  power  of  the  court  to  issue  and  enforce  an  order  to  a 
party  in  a  suit,  compelling  him  to  submit  his  person  to  an 
examination  of  surgeons  without  consent  and  in  advance  of 
the  trial.  The  court  held  such  extraordinary  proceedings  to 
be  without  authority  of  the  common  law  or  of  the  statutes 
<jt  the  United  States  and  without  precedent  in  common 
visage.  Justice  Gray,  speaking  for  the  court,  quoted  Judge 
Oooley's  remark  that  "  the  right  to  one's  person  may  be  said  ^ 
to  be  a  right  of  complete  immunity,  to  be  let  alone,"  and 
said  that  by  the  common  law  every  individual  had  the  right 
to  the  possession  and  control  of  his  own  person,  free  from 
;all  restraint  or  interference  of  others,  unless  by  clear  and 
unquestionable  authority  of  law;  and  he  continued,  "the  in- 
violability of  the  person  is  as  much  invaded  by  compulsory 

Ala,  39t,  7  So.  100;  Darrow  v.  Lau-    Shafto  v.  Shafto,  28  N.  J.  Eq.  34; 
srent,  17  Lower  Canada  Jurist,  334;    Morrell  o.  Morrell,  17  Hun,  324. 

1  Page  V.  Page,  51  Mich.  88. 


633  IMPOTENCY.  [§  700. 

stripping  and  exposure  as  by  a  blow.  To  compel  any  one  to 
lay  bare  the  body,  or  submit  .to  the  touch  of  a  stranger, 
without  lawful  authority,  is  an  indignity,  an  assault  and  a 
trespass ;  and  no  order  of  process,  commanding  such  expos- 
ure or  submission,  was  ever  known  to  the  common  law  in 
administration  of  justice  between  individuals,  except  in  a 
very  small  number  of  cases,  based  upon  special  reasons,  and 
upon  ancient  practice,  coming  down  from  ruder  ages,  now 
mostly  obsolete  in  England,  and  never,  so  far  as  v^e  are 
aware,  introduced  in  this  country."  ^  And  we  iind  that  this 
power  of  the  court  to  compel  a  physical  examination  is 
denied  in  some  of  our  states.^  In  the  leading  case  upon- 
this^  question,'  the  power  to  compel  the  examination  is  sus- 
tained on  the  ground  that  a  party  to  an  action  has  a  right 
to  demand  the  administration  of  exact  justice,  and  for  that 
purpose  all  essential  evidence  within  the  control  of  the  court 
shall  be  produced,  and  that  it  is  within  the  power  of  the 
court  to  compel  the  plaintiff  as  a  witness  before  it  to  submit 
to  an  examination  or  treat  his  refusal  as  a  contempt.  The 
power  is  also  admitted  in  a  number  of  cases  decided  since 
the  above  case,  some  of  which  cite  it,  and  others  use  the 
same  or  similar  reasons. 

§  700.  When  inspection  necessary. —  Since  the  rule  that 
the  impotent  party  must  be  examined  is  based  upon  the- 
necessity  of  such  evidence,  where  there  is  other  competent 

1  Union  Pacific  Ry.  Co.  v.  Bots-  WooUey,  116  N.  Y.  294;  s.  C,  26  St.. 
ford,  141  U.  S.  250, 11  Sup.  Ct.  1000.  Rep.  678.  See  dissenting  opinion. 
See,  also,  dissenting  opinion  of  McQuigan  v.  Delaware,  etc.  E.  R. 
Brewer,  J.  Co.,  122  N.  Y.  618 :  Parker  v.  Enslow,. 

2  Roberts  v.  Ogdensburgh,  etc.  R.  103  111.  372;  Chicago,  etc.  R.  R.  Co.^ 
R.  Co.,  29  Hun,  154  This  case  in  v.  Holland,  18  111.  Ap.  418,  433;  s.  c.,. 
effect  overrules  Walsh  v.  Sayer,  53  133  111.  461.  The  case  of  Loyd  v^ 
How.  Pr.  334,  and  Shaw  v.  Van  Hannibal,  etc.  E.  R.' Co.,  57  Mo.  509,. 
Rensselaer,  60  How.  Pr.  143;  ap-  has  been  overruled.  Pennsylvania, 
proved  and  followed  in  Neuman  v.  R.  E.  Co.  v.  Newmeyer,  28  N.  E.  860,^. 
Third  Avenue  R.  R.  Co.,  18  J.  &  S.  overruling  the  dictum  in  Kern  v.. 
412;  McSwyny  v.  Broadway,  etc.  Bridwell,  119  Ind.  336,  31  N.  E.  664. 
R.  R.  Co.,  7  N.  Y.  Supp.  456;  S.  C,  ^gchroeder  v.  Chicago,  etc.  Ry.. 
S7  St.  Rep.  368,  and  in  Elfers  v.  Co.,  47  la.  375. 


§  700.]  IMPOTENOY.  633 

evidence  the  inspection  will  be  refused.  It  is  not  necessary, 
as  was  once  supposed,  that  there  be  physical  examination  in 
every  case.^  All  that  is  required  is  a  prima  facie  case,  or 
such  evidence  as  will  convince  the  court  that  the  incapacity 
exists  and  that  there  is  no  collusion  between  the  parties.^ 
An  inspection  is  not  necessary  where  the  court  finds  there 
is  such  insincerity  as  will  bar  the  decree.'  The  necessity  of 
an  examination  was  denied  where  the  party  was  in  her  sixty- 
ninth  year.*  The  necessity  for  the  examination  should  ap- 
pear in  the  trial  and  not  upon  a  showing  made  before  the 
hearing.  Since  this  indelicate  invasion  of  personal  rights 
must  be  justified- by  the  most  extreme  necessity  arising  from 
the  conflict  of  evidence,  or  the  lack  of  it,  aU  preliminary 
questions  should  first  be  determined,  such  as  the  presence 
of  the  defect  at  the  time  of  the  marriage,  the  age  of  the 
parties,  the  incurable  nature  of  the  incapacity,  and  whether 
it  would  be  such  as  to  prevent  natural  copulation,  and 
whether  the  action  is  not  barred  by  delay  or  insincerity. 
And  after  hearing  all  the  testimony,  if  the  court  is  satisfied 
that  the  action  must  be  dismissed,  the  court  may,  in  its  dis- 
cretion, refuse  to  order  a  compulsory  examination.  An  ex 
parte  examination  by  the  party's  own  physician  has  been 
held  to  be  insufficient  in  a  contested  case,^  and  the  defend- 
ant was  required  to  submit  to  an  inspection  by  one  or  more 
respectable  physicians  chosen  by  complainant,  with  the 
sanction  of  the  court.  For  many  obvious  reasons  the  party's 
own  physician  should  be  permitted  to  be  one  of  the  inspect- 
ors or  at  least  be  present.  If  physicians  have  examined 
the  incompetent  party  before  the  suit  was  brought,  their 
testimony  will  be  sufiicient  without  an  inspection."  Partic- 
ularly is  this  true  where  the  wife's  surgeon  testifies  that 

1 H.  V.  C,  1  Swab.  &  T.  605.    But        <  Shaf to  v.  Shaf to,  28  N.  J.  Eq.  34. 
see  where  decree  granted  without        » Newell  v.  Newell,  9  Paige,  25. 
inspection,  F.  v.  D.,  4  Swab.  &  T.        *  Brown  v.  Brown,  1  Hag.  Eo.  523, 

86.  3Eng.Ec.  229;  Anonymous,  35  Ala. 

2  Harrison  v.  Harrison,  4  Moore  226;  Devanbaugh  v.  Devanbaugh, 
P.  C.  96.  5  Paige,  554. 

3  Briggs  V.  Morgan,  3  Phila.  325. 


634  IMPOTENOT.  [§  701. 

the  difficulty  has  not  been  cured  after  several  operations.' 
"Where  the  plaintiff  introduced  the  testimony  of  two  physi- 
cians who  had  examined  the  wife,  and  also  the  testimony  of 
the  family  physician  and  his  assistant,  it  was  sufficient,  and 
the  court  did  not  err  in  refusing  an  order  for  inspection,  al- 
though the  medical  testimony  was  conflicting.^  The  testi- 
anony  of  the  party's  own  physician  may  often  be  satisfactory 
if  corroborated  by  other  evidence,  however  slight,  and  a 
compulsory  examination  should  not  be  ordered  until  after 
such  testimony  is  heard  and  the  necessity  for  further  evi- 
dence appears.  Where  the  impotency  of  the  husband  is  al- 
leged, no  inspection  is  necessary  as  to  the  virginity  of  the 
woman  if  she  has  been  married  before,  or  where,  from  acci- 
dent, disease  or  other  causes,  no  evidence  of  virginity  could 
be  expected,'  or  where  she  denies  her  virginity. 

§  701.  Inspection  by  commission. —  No  unif orili  practice 
is  followed  in  directing  an  inspection.  "Where  a  commis- 
sion is  ordered  to  take  the  proofs,  the  parties  are  ordered  to 
submit  themselves  to  a  personal  examination  by  such  num- 
ber of  physicians  and  surgeons,  at  such  time  and  place,  and 
under  such  regulations,  as  are  prescribed  by  the  commis- 
sioner.* This  practice  has  been  justly  criticised  as  being 
too  far  removed  from  the  control  of  the  court  and  leading 
to  abuse  of  the  privilege  of  examination.'  In  a  recent  case 
the  supreme  court  ordered  the  chancellor  to  select  the 
physician  or  matrons  who  were  to  examine  a  woman  who 
complained  of  the  abnormal  proportions  of  the  husband's 
sexual  organs.  The  defendant,  as  a  condition  of  his  de- 
fense, must  also  submit  to  an  examination  if  he  contests 
the  complainant's  rights.®  The  inspectors  are  sworn  to 
faithfully  and  to  the  best  of  their  sMll  inspect  the  parts 
and  organs  of  generation  of  each  of  the  parties  and  report 

1  Payne  v.  Payne,  46  Minn.  467,  *Le  Barron  v,  Le  Barron,  35  Vt. 
49  N.  "W.  230.  365  (1863). 

2  Or.  V.  a,  33  Md.  401.  «  Page  v.  Page,  51  Mich.  88. 
sSerreU  v.  Serrell,  2  Swab.  &  T.       « Anonymous,  89  Ala.  291,  7  So. 

-433.  100. 


f  Y02.]  IMPOTENCY.  635 

in  writing  to  the  court  whether  the  man  is  capable  of  per- 
forming the  act  of  generation,  and,  if  incapable,  whether 
the  incapacity  can  be  cured ;  also  whether  the  ^voman  is  or 
is  not  a  virgin,  or  has  an  impediment  preventing  the  consum- 
mation of  the  marriage,  and  whether  such  impediment  can 
be  remedied  by  a  surgical  operation.'  The  inspectors  after 
the  examination  file  a  certificate  as  above,  and  if  it  appears 
necessary  may  be  examined  as  witnesses.  Their  certificate 
does  not  exclude  their  own  testimony  or  that  of  other  wit- 
nesses.^ 

§  702.  Personal  injury  cases. —  Some  assistance  may  be 
derived  from  the  examination  of  similar  proceedings  in  per- 
sonal injury  cases.  It  is  clear  that  the  exercise  of  this  power 
by  a  court  is  discretionary  and  that  the  refusal  to  exercise 
it  is  not  a  reversible  error.'  Or  if  there  is  any  error  in  re- 
fusing an  application  for  the  appointment  of  experts,  it  is 
cured  where  it  is  shown  that  all  the  facts  are  fairly  and 
fully  brought  out  by  the  testimony  of  competent  and  un- 
biased witnesses.*  There  is  a  presumption  which  always 
runs  in  favor  of  the  trial  court,  that  the  order  was  refused 
under  such  circumstances  that  it  ought  not  to  have  been 
granted,  and  he  who  complains  of  the  ruling  must  show  that 
the  error  committed  was  prejudicial  to  him.^  The  power  of 
the  court  to  appoint  experts  for  this  inspection,  if  exercised 
at  all,  should  be  to  appoint  one  or  more  disinterested  ex- 
perts, either  of  its  own  selection  or  such  as  may  be  agreed 
upon  by  both  parties.^  Where  it  is  sought  to  have  an  exam- 
ination by  experts  named  by  the  adverse  party,  the  request 

1  Browne,  Div.  Practice  (4th  ed.),  '  State  v.  Johnson,  67  N.  C.  55,  3 
632.  West.  Law  Jour.  131. 

2  For  form  of  certificates,  see  ^  State  v.  Garrett,  71  N.  C.  85, 17 
W.  V.  H.,  3  Swab,  &  T.  340;  S.  v.  E.,  Am.  Rep.  1. 

3  Swab.  &  T.  240;  L.  v.  H.,  4  Swab.  » Miami,  etc.  Co.  v.  Baily,  37  Ohio 

&  T.  115.    Examination  of  inspect-  St.  104. 

ors,  see  above  cases  and  also  M.  u  ^  Missouri  Pacific  R.  R.  Co.   v. 

B.,  3  Swab.  &  T.  550;  Deane  v.  Johnson,  73  Tex.  95.    In  this  case 

Aveling,  1  Rob.  Ec.  379.  the  plaintiff  was  willing  to  be  ex- 


630  IMPOTEKCT.  [§  T02. 

should  be  refused/  as  the  application  should  have  been  that 
the  court  appoint  a  physician  or  physicians  without  naming- 
any  one. 

It  seems  that  the  right  to  select  the  party's  own  physi- 
cian is  sometimes  recognized  by  the  courts.  In  one  case  the 
plaintifP,  a  lady  of  refinement,  declined  to  submit  to  a  com- 
pulsory examination,  giving  as  a  reason  that  she  had  been 
once  examined  by  a  certain  skilled  physician  whose  testi- 
mony could  be  obtained,  and  that  she  was  also  willing  to 
submit  to  another  examination  by  a  resident  physician,  of 
high  skill,  whose  testimony  could  also  be  obtained;  and  it 
was  held  error  to  deny  the  defendant's  application,  for  th& 
"  plaintiff's  offer  was  a  fair  one,  and  that  asked  by  the  de- 
fendant unreasonable."  ^ 

The  court  may  also  deny  this  application  if  it  is  not  mad& 
in  due  time,  or  is  made  at  such  a  time  that  it  would  un- 
necessarily prolong  the  trial.  And  if  no  reason  is  shown 
for  the  delay  in  making  the  application,  it  may  be  refused 
on  that  ground  alone.'  Ordinarily  the  request  wiU  not  be 
granted  if  made  during  the  trial,  but  the  court  may  order  it 
if  the  delay  is  explained  or  the  necessity  for  such  examina- 
tion appears  in  the  progress  of  the  trial.*  It  will  of  course 
devolve  upon  the  applicant  to  show  that  no  examination  has 
been  made ;  or,  if  it  was  made,  that  for  some  reason  it  was 
insufficient  and  incomplete,  or  made  by  incompetent  persons, 
or  persons  under  the  control  of  the  opposite  party.  But  if 
afterwards  the  applicant  uses  those  persons  who  have  made 
the  examination  as  witnesses  in  the  case,  he  will  be  deemed 
to  have  waived  his  right  to  a  compulsory  examination.^ 

amined  by    any  other,  physician  *  Stuart  v.  Havens,  17  Neb.  211.. 

than  the  one  selected  by  the  de-  But  the  court  may  order  it  if  it 

fendant.  sees  fit.    St.  Louis  Bridge  Co.  v. 

1  Sioux,  etc.  Ey.  Co.  v.  Finlayson,  Miller  (111.),  28  N.  E.  1091;  Hess  iv 

16  Neb.  578.  Lowrey,  132  Ind.  225,  23  N.  E.  156; 

-  Shepard  v.  Missouri  Pacific  Ry.  Railroad  Co.  v.  Brunker,  128  Ind. 

Co.,  85  Mo.  629.  542,  36  N.  E.  178. 

3  Miami,  etc.  Co.  v.  Baily,  37  Ohio  ^  International,   etc.    Ry.    Co.   v. 

St.  104.  Underwood,  64   Tex.   463;    Sibley 


■§  703.]  IMPOTENCY.  637 

§  703.  Order  for  inspection,  how  enforced.— In  case 
the  plaintiff  refuses  to  obey  the  order  for  inspection,  the  ac- 
tion should  be  dismissed.'  But  a  more  difficult  question 
arises  if  the  defendant  refuses.  It  is  the  opinion  of  Mr. 
Bishop  that  an  attachment  for  contempt  will  lie,  but  he  does 
not  refer  to  cases  where  this  process  "was  insisted  upon.  It 
lias  been  suggested  that  the  court  can  enforce  this  order  in 
the  same  manner  as  it  would  compel  a  stubborn  witness  to 
testify.^  But  if  the  power  to  punish  for  contempt  should 
fail,  it  is  not  probable  that  force  would  be  resorted  to  in  any 
case.  The  court  cannot  annul  the  marriage  upon  the  refusal 
of  a  defendant  to  submit  to  inspection,  for  the  parties  would 
then  be  able  to  obtain  the  desired  decree  where  the  evidence 
might  not  justify  any  relief.  In  this  connection  it  may  be 
well  to  observe  that  a  court  should  proceed  with  great  cau- 
tion in  granting  such  an  order,  because  the  exercise  of  this 
power  must  be  justified,  if  at  ail,  upon  the  ground  of  neces- 
sity, and  the  utter  absence  of  competent  evidence  should 
appear  on  the  trial;  and  any  questions  relating  to  delay  or 

V.  Smith,  46  Ark.  375;  Shaw  v.  Wis.  586;  Railway  Co.  v.  Under- 
Van  Rensselaer,  60  How.  Pr.  143;  wood,  64  Tex.  463;  Sioux  City  R. 
Chicago,  etc.  R.  R.  Co.  v.  Miller  Co.  v.  Finlayson,  16  Neb.  578.  In 
<I1L),  38  N.  E.  1091 ;  Turnpike  v.  Alabama  Ry.  Co.  v.  Hill,  90  Ala.  71, 
Bailey,  37  O.  St.  104;  Railway  Co.  8  So.  90,  it  was  held  error  to  over- 
V.  Thul,  39  Kan.  466;  White  v.  rule  a  motion  for  the  examination 
Railway  Co.,  61  Wis.  536,  31  N.  W.  of  plaintiff,  a  young  woman  of 
524;  Hatfield  v.  Railway  Co.,  33  nervous  temperament  and  delicate 
Minn.  130,  33  N.W.  176;  Stewart  u  and  refined  feelings,  who  had 
Havens,  17  Neb.  311,  33  N.  W.  414;  already  submitted  to  several  ex- 
Owens  V.  Railway  Co.,  95  Mo.  196,  aminations  of  her  physicians,  the 
8  S.  W.  350;  Railway  Co.  v.  John-  proposed  examinations  not  involv- 
son,  72  Tex.  95,  10  S.  W.  335;  Rail-  ing  any  ill  consequences, 
way  Co.  V.  Childress,  83  Ga.  719,  i  Miami,  etc.  R.  Co.  v.  Bailey,  37 
«  S.  E.  603;  Railway  Co.  v.  Hill,  O.  St.  104;  Owensu  K.C.  R.  R.  Co., 
90  Ala.  71,  8  So.  90;  Shepard  v.  Mo.  95  Mo.  196;  Shepard  w  Mo.  Pac.  Ry. 
Pac.  Ry.  Co.,  85  Mo.  639;  Kinney  v.  Co.,  85  Mo.  639. 
Springfield,  35  Mo.  Ap.  97;  Side-  ^gchroeder  v.  Chicago,  etc.  R. 
kum  V.  Wabash  R.  Co.,  93  Mo.  400;  Co.,  47  la.  875. 
White  V.  Milwaukee  Ry.  Co.,  61 


638  iMPOTENCT.  [§§  Y04,  705, 

insincerity  should  be  first  determined,  so  that  the  only  ques- 
tion remaining  to  be  determined  is  the  present  condition  of 
the  sexual  organs  of  one  or  perhaps  both  parties. 

§  704.  Eflfect  of  decree— Whether  divorce  or  annulment. 
In  the  ecclesiastical  law  this  was  a  suit  for  nullity,  and  th& 
marriage  was  declared  void  ah  initio.  If  our  statutes  are 
for  the  sole  purpose  of  granting  jurisdiction  to  the  courts^ 
then  the  proceeding  is  a  nullity  suit.^  Where  a  statute- 
permitted  divorces  for  "impotency  or  adultery,"  the  suit 
was  considered  a  nullity  suit."  A  similar  construction  was 
given  the  term,  "  the  impotence  of  either  party  at  the  time 
of  the  marriage."  "^  But  from  the  expressions  used  in  the 
various  decisions,  as  well  as  the  context  of  the  statutory 
terms,  it  is  apparent  that  the  physical  incapacity  is  men-^ 
tioned  as  a  cause  for  divorce.'  This  construction  supposes 
a  voidable  marriage  which  the  complainant  has  not  consum- 
mated, but  in  fact  affirms  and  asks  to  have  dissolved.  The 
question  is  not  free  from  difficulty,  and  is  so  dependent  upon 
the  context  of  the  statute  that  further  discussion  would  be 
fruitless.  A  construction  in  accordance  with  the  common 
law  would  require  the  decree  to  annul  the  marriage.^ 

§  705.  Impotency  renders  the  marriage  voidable. —  A 
marriage  is  not  void  because  one  of  the  parties  is  impotent 
or  physically  incapable  to  consummate  the  marriage.'  It 
was  contended  that  such  marriage  was  void,  and  therefore 
an  impotent  husband  had  no  right  to  administration  after 
the  death  of  his  wife ;  but  the  court  held  such  marriage  only 
voidable,  observing  that  the  practice  of  the  courts,  both 
temporal  and  spiritual,  from  all  time,  has  been  inconsistent, 
with  the  attempt  now  made,  and  that  it  is  not  supported  by 

1  Bascomb  v.  Bascomb  (N.  H.),  5  <  Chase  v.  Chase,  55  Me.  31.  And! 
Foster,  267.  therefore  no  permanent  alimony^ 

2  Kempf  V.  Kempf,  34  Mo.  311.         could  be  allowed. 

8  Anonymous,  89  Ala.  391,  7  So.  ^A  New  Jersey  statute  at  one 

100;  G.  V.  Gr.,  33  Md.  401;  A.  B.  v.  time  made  such    marriage  void. 

C.  B.,  34  N.  J.  Eq.   43;  Payne  u  See  reference  to  statute.    Gulick 

Payne,  46  Minn.  467,  49  N.  W.  330.  v.  Gulick,  13  Vroom,  13. 


§  Y05.]  mpoTENOT.  63& 

,  a  single  authority."  ^  The  writer  has  found  no  exception  to 
this  rule  from  that  time  until  the  present.  Indeed,  the 
whole  law  of  this  subject  is  incompatible  with  void  mar- 
riages, since  the  complainant  may  by  acquiescence  delay,  or 
by  insincerity  waive,  his  right  to  have  the  marriage  an- 
nulled.^ 

1  A.  r.  B.,  1  P.  &  M.  559  (1868).  »  Elliott  v.  Gurr,  2  Phillim.  16. 


CONSANGUINITY  AND   AFFINITY. 


§  710.  In  general. 

711.  The  Levitical  degrees  and 
the  common  law. 

713.  How  the  degrees  are  com- 
puted. 


§  713.  Consanguinity. 

714.  Affinity. 

715.  Modern  statutes. 


§  710.  In  general. —  Consanguinity  is  the  relation  of  per- 
sons descended  from  the  same  common  ancestor,  while  aflBn- 
ity  is  the  relation  by  marriage.  Affinity  exists  between  the 
husband  and  the  blood  relations  of  the  wife,  and  between  the 
wife  and  the  blood  relations  of  the  husband.  There  is  no 
affinity  between  the  blood  relations  of  the  husband  and  the 
blood  relations  of  the  wife.^  Affinity  ceases  when  the  tie  is 
broken  by  the  death  of  one  of  the,  parties  to  the  marriage 
without  issue,^  but  continues  so  long  as  their  issue  is  living.  3 
The  prohibition  of  marriage  in  these  cases  applies  to  rela- 
tionship of  the  half  blood  as  well  as  of  the  whole  blood.* 
Generally  the  courts  refuse  to  determine  the  validity  of  such 
marriage  in  a  collateral  proceeding.^  And  it  seems  that  at 
common  law  the  canonical  disability  of  consanguinity  and 


1  Paddock  v.  Wells,  3  Barb.  Oh. 
331. 

2  Id. ;  Carman  v.  Newell,  1  Denio 
(N.  Y.),  26;  Mounson  v.  West,  Leon- 
ard, 88;  Blodgett  v.  Brinsmaid,  9 
Vt.  37.  See  contra,  Spear  v.  Rob- 
inson, 39  Me.  581. 

3  Paddock  v.  Wells,  3  Barb.  Ch. 
331:  Trout  v.  Drawhorn,  57  Ind. 
570;    Winchester  v.  Hinsdale,   12 


Conn.  88;  Dillworth  v.  Com.,  10 
Gratt.  (Va.)690;  Dearmond  v.  Dear- 
mond,  10  Ind.  191;  Cain  v.  Ingham, 
7  Cowen  (N.  Y.),  478. 

■•Reg.  V.  Brighton,  1  B.  &  S.  447. 

SMyatt  V.  Myatt,  44  IlL  473;  Boy- 
Ian  V.  Dinzer,  45  N.  J.  Eq.  485,- 18 
A.  119;  Sutton  v.  Warren,  51  Mass. 
451 ;  Buissiere's  Succession,  41  La. 
An.  317,  5  So.  668;  Elliott  v.  Gurr, 


"§  711.]  CONSANGUINITY   AND    AFFINITY.  641 

aflBnity  rendered  the  marriage  voidable  only,  and  valid  as  to 
all  civil  purposes  unless  sentence  of  nullity  was  rendered 
during  the  life-time  of  the  parties.^  Either  party  to  such 
void  marriage,  or  even  interested  third  persons,  may  have 
such  marriage  declared  void.^  The  fact  that  both  parties 
are  aware  of  the  consanguinity  is  not  a  defense  to  the  suit. 
In  most  of  our  states  marriages  are  void  for  consanguinity, 
but  in  many  states  the  marriage  is  deemed  valid  until  it  is 
annulled  by  a  court  of  competent  jurisdiction.'  Thus  in 
Pennsylvania  a  marriage  of  a  man  to  his  son's  widow  is  de- 
■clared  void  by  statute ;  but  after  the  death  of  the  man,  the 
widow  is  entitled  to  dower,  as  the  validity  of  the  marriage 
cannot  be  questioned  after  the  death  of  one  of  the  parties.* 
And  this  is  held  to  be  true  at  common  law.  A  niece  is  entitled 
to  th6  rights  of  a  widow  where  she  marries  her  uncle  and  sur- 
vives him,  if  the  question  is  not  a£fected  by  statute  and  the 
marriage  is  not  annulled  during  the  life-time  of  both  parties.* 
§  711.  The  Levitical  degrees  and  the  common  law. — 
The  statute  of  Henry  YIII  declared  lawful  all  marriages 
"  not  prohibited  by  God's  law,"  .  .  .  and  that  "  no  res- 
ervation or  prohibition,  God's  law  except,  shall  trouble  or 
impeach  any  marriage  without  the  Levitical  degrees."  The 
terms  "  God's  laws  "  and  "  the  Levitical  degrees  "  are  con- 
strued to  be  identical  in  meaning.*  The  English  courts,  in 
interpreting  this  statute,,  adopted  the  table  of  prohibited 
degrees  published  by  Archbishop  Parker.  "  These  tables," 
it  was  said,  "  do  show  the  sense  of  the  church  of  England, 
and  so  are  a  proper  exposition  of  the  law  of  God,  and  by 

SPhillim.  16;  Bonham  v.  Badgley,  2  Andrews  v.  Ross,  14  P.  D.  15; 

7  lU.  633;  Stevenson  v.  Gray,  17  B.  Miles  v.  Chilton,  1  Rob.  Ec.  684. 

Mon.  193-315,  3  Cent.  Law  J.  340.  3 Parker's    Appeal,  44   Pa.    809; 

lAdkins  v.  Holmes,  3  Ind.  197,  Harrison  v.  S.,  23  Md.  468;   S.  v. 

citing  3  Kent's  Com.  95;  1  Black-  Barefoot,  3  Rich.  309. 

stone's  Com.  434;  Shelf  ord.  Mar.  &  *  Walter's  Appeal,  70  Pa.  393. 

Div.  154;  Gathing  v.  Williams,  5  *  Bowers  u  Bowers,  10  Rich.  551. 

Iredell,  487;  Sutton  v.  Warren,  10  «  Reg.  v.  Chadwick,  11  Q.  B.  173. 
Metcalf,  451,  51  Mass.  451;  Bonham 
*.  Badgley,"  3  Gilman,  633. 
41 


642 


CONSANGUINITY    AND    AFFINITY. 


[§  ri2- 


consequence  ought  to  have  great  weight  with  the  judges 
when  they  expound  the  Levitical  law."  ^ 

The  statute  of  Henry  VIII/  and  this  interpretation  of  it, 
is  a  part  of  our  common  law.  The  various  states  of  the 
Union,  however,  have  regulated  the  prohibited  degrees  to 
such  extent  that  it  is  believed  this  portion  of  the  common 
law  is  now  no  longer  in  force. 

§  712.  How  the  degrees  are  computed. —  The  degrees  of 
consanguinity  and  affinity  are  computed  according  to  the 
rule  of  the  civil  law.  Commencing  with  either  of  the  per- 
sons related,  the  degrees  are  counted  upward  to  the  common 
ancestor,  and  then  descending  to  the  other  person,  reckon- 


1  Butler  V.  Gastrill,  Gilb.  Ch.  158.    The  table  of  prohibited  degrees  was 
as  follows: 


A  man  may  not  marry  his 

A  woman  may  not  marry  her 

1.  Grandmother. 

1.  Grandfather. 

2.  Grandfather's  wife. 

2.  Grandmother's  husband. 

3.  Wife's  grandmother. 

3.  Husband's  grandfather. 

4.  Father's  sister. 

4.  Father's  brother. 

6.  Mother's  sister. 

5.  Mother's  brother. 

6.  Father's  brother's  wife. 

6.  Father's  sister's  husband. 

7.  Mother's  brother's  wife. 

7,  Mother's  sister's  husband. 

8.  Wife's  father's  sister. 

^  8.  Husband's  father's  brother. 

9.  Wife's  mother's  sister. 

9.  Husband's  mother's  brother. 

10.  Mother. 

10.  Father. 

11.  Step-mother. 

11.  Step-father. 

12.  Wife's  mother. 

12.  Husband's  father. 

13.  Daughter. 

13.  Son. 

14.  Wife's  daughter. 

14.  Husband's  son. 

15.  Son's  wife. 

15.  Daughter's  husband. 

16.  Sister. 

16.  Brother. 

17.  Wife's  sister. 

17.  Husband's  brother. 

18.  Brother's  wife. 

18.  Sister's  husband. 

19.  Son's  daughter. 

19.  Son's  son. 

20.  Daughter's  daughter. 

20.  Daughter's  s6n. 

21.  Son's  son's  wife. 

21.  Son's  daughter's  husband. 

23.  Daughter's  son's  wife. 

22.  Daughter's  daughter's  husband. 

23.  Wife's  son's  daughter. 

23.  Husband's  son's  son. 

34.  Wife's  daughter's  daughter. 

24.  Husband's  daughter's  son. 

2.5.  Brother's  daughter. 

25.  Brother's  son. 

26.  Sister's  daughter. 

26.  Sister's  son. 

87.  Brother's  son's  wife. 

27.  Brother's  daughter's  husband. 

28.  Sister's  son's  wife. 

28.  Sister's  daughter's  husband. 

29.  Wife's  brother's  daughter. 

29.  Husband's  brother's  son. 

30.  Wife's  sister's  daughter. 

80.  Husband's  sister's  sm, 

2  33  Hen.  VIII,  cL  38. 


§  713.]  CONSANGUINITY    AND    AFFINITY.  643 

iug  a  degree  for  each  person,  both  ascending  and  descending.^ 
The  common  ancestor  is  the  trunk  or  common  stock  from 
"which  the  relation  branches  out.  According  to  this  rule, 
the  civil  law  counts  the  sum  of  degree's  in  both  line's.  The 
father  stands  in  the  first  degree ;  the  grandfather  in  the  sec- 
ond degree ;  uncle  in  the  third  degree,  and  the  cousins  in 
the  fourth  degree.  Lineal  consanguinity  is  the  direct  line 
of  descent  as  between  the  father,  son,  grandson  and  great- 
grandson,  the  latter  being  in  the  third  degree.  But  in  col- 
lateral consanguinity  the  parties,  although  descended  from 
a  common  stock,  are  not  direct  descendants ;  as  a  man  is 
collaterally  related  to  his  brother  or  sister  in  the  second  de- 
gree, to  his  nephew  or  niece  in  the  third  degree,  and  to  his 
grand-nephew  or  niece  ij"  the  fourth  degree.  Second  cousins 
are  related  in  the  sixth  degree  of  consanguinity,  as  wiU  be 
seen  by  counting  from  one  second  cousin  to  the  common 
ancestor  (the  great-grandfather),  three  degrees,  and  three 
degrees  more  in  descending  to  the  other  second  cousin. 
Affinity  is  calculated  in  the  same  manner.  Where  two  men 
marry  sisters  they  become  related  to  each  other  in  the  sec- 
ond degree  of  affinity,  as  their  wives  are  related  in  the  second 
degree  of  consanguinity.  The  degree  of  consanguinity  of 
the  husband  to  a  person  is  the  same  as  the  degree  of  affinity 
of  the  wife  to  that  person. 

§  713.  Consanguinity. —  This  incapacity  to  marry  extends 
to  all  blood  relationship  of  both  the  entire  ascending  and 
descending  lineal,  and  to  both  lineal  and  collateral  consan- 
guinity of  the  first,  second  and  third  degrees  of  the  civil-law 
rule.  According  to  this  rule,  under  the  ecclesiastical  law, 
which  is  part  of  our  common  law,  a  man  could  not  marry 
his  niece,^  and  a  woman  could  not  marry  her  nephew  or 
other  relative  within  the  third  degree.  Eut  a  man  may 
marry  the  widow  of  his  great-uncle,'  or  cousins-german  or 
other  relatives  of  the  fourth  degree. 

1 4  Kent  Com.  412.  Con.  384;  Watkinson  v.  Mergatron, 

2  Woods  V.  Woods,  3  Ctirt.  Ec.    T.  Raym.  464. 
516 ;  Burgess  v.  Burgess,  1  Hagg.       '  Blackmore  v,  Brider,  3  Phillim. 

359. 


644  CONSANGUINITY   AND   ATFINITT.  [§§  714r-715, 

§  714.  Affinity. —  According  to  the  ecclesiastical  law,  mar- 
riages were  prohibited  on  the  ground  of  affinity  in  the  first, 
second  and  third  degrees  of  the  civil  law.  Under  the  En- 
glish law,^  a  man  is  prohibited  from  marrying  his  deceased 
wife's  sister;^  his  deceased  wife's  sister's  daughter;'  his  de- 
ceased wife's  mother's  sister ;  *  or  his  deceased  wife's  daugh- 
ter by  a  former  husband.'  And  a  woman  is  prohibited  from 
marrying  her  deceased  husband's  brother.^  Since  there  is 
no  affinity  existing  between  the  blood  relations  of  the  hus- 
band and  blood  relations  of  the  wife,  brothers  may  marry 
sisters,  and  father  and  son  may  marry  mother  and  daugh- 
ter ;  or  a  man  marry  the  widow  of  his  wife's  brother.  At 
one  time  affinity  was  created  by  precontract  and  by  mere 
sexual  intercourse,  but  this  law  was  changed  by  subsequent 
legislation.  Thus,  before  the  act  of  Henry  YIII,  a  man 
could  obtain  a  decree  annulling  his  marriage  if  he  had,  be- 
fore marriage,  committed  adultery  with  his  wife's  mother. 
But  after  this  act,  it  was  held  that  the  affinity  which  makes 
the  subsequent  marriage  unlawful  is  created  by  marriage 
only.' 

§  715.  Modern  statutes. —  In  nearly  all  of  the  states  the 
statutes  specify  the  particular  relationships  within  which 
marriages  are  prohibited ;  so  that  aU  marriages  not  among 
those  enumerated  will  be  deemed  vahd.  In  two  states  the 
statutes  refer  to  the  "Levitical  degrees,"  and  Archbishop 
Parker's  table  and  its  interpretation  at  common  law  is  fol- 
lowed.' In  many  states  the  intermarriage  of  first  cousins  is 
prohibited ; '  while  in  other  states  marriages  are  prohibited 

1 33  Hen.  8.  6  Aughtie  u  Aughtie,  1  Philliin. 

2C.  V.  Perryman,  2  Leigh,  717;  201. 

Eeg.  V.   Chad  wick,  11   Q.   B.   173;  'Wing  v.  Taylor,  2  Swab.  &  T. 

Kelly  V.  Scott,  5  Gratt.  479;  Hutch-  278. 

ins  V.  C,  2  Va.  Cas.  331;  Com.  v.  s  Florida,  Georgia, 

Leftwich,  5  Eand.  657.  9  Arizona,    Arkansas,    Colorado, 

sWortly  V.  Watkinson,  2  Lev.  Illinois,  Indiana,  Kansas,  Montana, 

254-  Nevada,  New    Hampshire,  North 

*  Butler  V.  Gastril,  Gilb.  Ch.  156.  and    South    Dakota,     Ohio   and 

5  Blackmore  v.  Brider,  2  Phillim.  Wyoming,    i 
359. 


§  715.]  CONSANGUINITT   AND    AFFINITY.  645 

between  persons  "  nearer  of  kin  than  first "  ^  or  "  second 
cousins."  ^  "  Marriages  are  prohibited  between  parents  and 
children,  ancestors  and  descendants  of  every  degree,  and  be- 
tween brothers  and  sisters  of  the  half  as  well  as  the  whole 
blood,  and  between  uncles  and  nieces  or  aunts  and  nephews," 
in  the  following  states:  California,  Idaho,  Missouri,  JSTe- 
braska  and  ISTew  Mexico.  To  this  the  statutes  of  E^orth  and 
South  Dakota  add :  "  Between  cousins  of  the  half  as  well 
as  of  the  whole  blood,"  and  "step-father  with  a  stepr 
daughter,  or  of  a  step-mother  with  a  stepson."  In  some 
states  the  statutes  declare  that  "  ISTo  man  shall  marry  his 
mother,  grandmother,  daughter,  granddaughter,  step-mother, 
grandfather's  wife,  son's  wife,  grandson's  wife,  wife's  mother, 
wife's  grandmother,  wife's  daughter,  wife's  granddaughter, 
sister,  brother's  daughter,  sister's  daughter,  father's  sister, 
or  mother's  sister.  No  woman  can  marry  her  correspond- 
ing relatives." '  Another  common  form  of  statute  provides 
that  "AU  marriages  are  forbidden  between  parents  and 
children,  including  grand-parents  and  grand-children  of 
every  degree ;  between  brothers  and  sisters  of  the  one-half 
as  well  as  the  whole  blood,  and  between  uncles  and  nieces, 
aunts  and  nephews,  and  between  first  cousins."  *  The  Mary- 
land statute  provides  that  "A  man  shall  not  marry  his 
grandmother,  grandfather's  wife,  wife's  grandmother,  fath- 
er's sister,  mother's  sister,  mother,  step-mother,  wife's  mother, 
daughter,  wife's  daughter,  son's  wife,  sister,  son's  daughter, 
daughter's  daughter,  brother's  daughter  or  sister's  daughter. 
A  woman  shall  not  marry  her  corresponding  relatives." ' 

1  Minnesota,  North  Carolina,  Ore-  *  Arizona,  Arkansas,  Illinois,  Kan- 
gon  and  Wisconsin.  sas,  Wyoming. 

2  Indiana,    Ohio,    Montana,    Ne-  ^  xhe  same  statute  is  in  force  in 
vada,  Washington.  New  Jersey,  Rhode  Island  and  Dis- 

3  Maine,    Massachusetts,    South  trict  of  Columbia. 
Carolina,  Vermont. 


MISCEGENATION. 


§  716.  In  generaL 

717.  Mulatto. 

718.  Persons  of  color  and  white 

persons. 


§  719.  CivU  jrights    bill,   or    four- 
teenth amendment. 
720.  Such  marriages  valid  unless 
declared  .void  by  statute. 


§  716.  Itt  general. —  The  state,  under  its  power  to  control 
the  domestic  relations  of  its  citizens,  may  prohibit  the  inter: 
marriage  of  races.  But  such  prohibition  should  be  based 
upon  some  physiological  reasons,  such  as  are  considered  suf- 
ficient to  interdict  the  intermarriage  of  cousins.  It  is  purely 
a  question  of  science  whether  or  not  the  intermarriage  of 
whites  and  blacks  wUl  cause  a  general  decay  of  national 
strength,  and  whether  their  offspring  will  be  sterile  and  of 
enfeebled  constitution.  When  the  various  statutes  prohibit- 
ing the  intermarriage  of  whites  and  blacks  were  enacted  it 
Avas  not  established  as  a  scientific  fact  that  such  marriages 
produced  enfeebled  offspring.  This  legislation  seems  to  have 
been  actuated  by  race  prejudice  and  a  popular  sense  of  superi- 
ority over  an  enslaved  people.  At  the  present  time  it  is  still 
a  controverted  question  whether  such  marriages  produce 
enfeebled  and  sterile  offspring.^  In  one  case  such  legislation 
is  justified  because :  "  It  is  stated  as  a  well  authenticated 
fact  that  if  the  issue  of  a  black  man  and  a  white  woman,  ancl, 
a  white  man  and  a  black  woman,  intermarry,  they  cannot 
possibly  have  any  progeny,  and  such  a  fact  sufficiently  justi- 
fies those  laws  which  forbid  the  intermarriage  of  blacks  and 
whites,  laying  out  of  view  other  sufficient  grounds  for  such 
enactments."^  The  difficulty  of  proving  that  such  inter- 
marriage produces  sterility  is  apparent,  for  all  other  causes 


iTiedeman's  Police  Powers,  157.        ^S.  v.  Jackson,  80  Mo.  175  (1883). 


§  YIY.]  MISCEGENATION.  64:7 

must  be  excluded.  The  opinion  of  a  jurist  is,  however,  en- 
titled to  some  weight  where  the  question  is  not  of  science 
exclusively,  but  in  part  a  matter  of  common  observation. 
Brown,  C.  J.,  declares  that  such  law  is  "dictated  by  wise 
statesmanship,  and  has  a  broad  and  solid  foundation  in  en- 
lightened policy,  sustained  by  sound  reason  and  common 
sense.  The  amalgamation  of  the  races  is  not  only  unnatural, 
but  is  always  productive  of  deplorable  results.  Our  daily 
observation  shows  us  that  the  offspring  of  the  unnatural 
connections  are  generally  sickly  and  effeminate,  and  that 
they  are  generally  inferior  in  physical  development  and 
strength  to  the  full  blood  of  either  race.  It  is  sometimes 
urged  that  such  marriages  should  be  encouraged,  for  the  pur- 
pose of  elevating  the  inferior  race.  The  reply  is,  that  such 
connections  never  elevate  the  inferior  race  to  the  position  of 
the  superior,  but  they  bring  down  the  superior  to  that  of  the 
inferior.  They  are  productive  of  evil,  and  evil  only,  with- 
out any  corresponding  good."  ^ 

§  717.  Mulatto. —  There  is  no  uniformity  of  definition  of 
the  terms  mulatto,  negro,  white  person  and  colored  per- 
son. A  mulatto  is  properly  defined  as  a  person  begotten  by 
a  white  and  a  black.  This  would  not  include  children  of 
parents  of  mixed  blood.  The  child  of  a  white  woman  by  a 
mulatto  father  is  not  a  mulatto.^  The  children  of  a  white 
and  a  mulatto,  or  children  whose  parents  are  not  of  pure 
blood,  are  not  designated  by  any  accurate  term.  In  South 
Carolina,  according  to  local  usage,  mulatto  signifies  "  a  per- 
son of  mixed  white  or  European  and  negro  descent,  in  what- 
ever proportions  the  blood  may  be  mixed,"  so  long  as  the 
proportion  of  black  blood  is  visible.^ 

1  Scott  V.  State,  39  Ga.  323  (1869).  hibiting  mixed  marriages  and  de- 

In  this  case  it  was  held  that  a  con-  daring  them  null  and  void, 

stitutional    provision    vphich    de-  2  Inhabitants  of  Med  way  v.  Nat- 

clares  that  "the   social  status  of  ich,  7  Mass.  88;  Thurman  v.  S.,  18 

the  citizen  9hall  never  be  the  sub-  Ala.   376;   Anderson's   Law  Diet., 

ject  of  legislation  "  does  not  repeal  Mulatto. 

or    render    inconsistent    the    pro-  ^  state  v.  Davis,  2  Bailey,  558; 

vision  of  the  Georgia  Code  pro-  State  u  Hayes,  1  Bailey,  275;  John- 


648  MISCEGENATIOif.  [§§  718,  719, 

§  718.  Persons  of  color  and  white  persons. —  I^egroes 
and  all  persons  having  a  distinct  admixture  of  African  blood 
are  properly  termed  "persons  of  color."'  Sometimes  the 
statute  fixes  the  generation  at  which  the  admixture  is  to  be 
deemed  indistinct.  Thus,  in  Yirginia,  "  every  person  having^ 
one-fourth  or  more  negro  blood  shall  be  deemed  a  colored 
person."  ^  And  in  the  absence  of  such  statute  a  similar  rule 
is  observed.'  These  decisions  are  at  variance  with  the  gen- 
eral holding  that  aU  persons  are  white  in  whom  the  white 
blood  predominates.*  The  term  "white  person"  includes 
one  nearer  white  than  black  or  red,^  but  does  not  include  a 
person  half  white  and  half  Indian,*  or  a  Mongolian.' 

§  719.  Civil  rights  bill^  or  fourteenth  amendment. — 
The  power  of  the  states  to  regulate  marriages  is  an  inherent 
power  reserved  because  not  expressly  delegated  to  the  na- 
tional government.'  The  laws  of  states,  prohibiting  and 
providing  punishment  for  the  intermarriage  of  white  per- 
sons and  negroes,  are  not  abrogated  or  in  any  way  impaired 
by  the  civil  rights  bill  of  Aprd  9,  1866,  which  provided, 
among  other  things :  "  That  all  persons  born  in  the  United 
States,  and  not  subject  to  any  foreign  power,  excluding  In- 
dians not  taxed,  are  hereby  declared  to  be  citizens  of  the 

son  V.  Boon,  1  Speers,  968.    See,  v.  Baker,  13  Ohio,  337;  Thacker  v. 

also,  Daniel  v.  Guy,  19  Ark.  131;  Hawk,  11  Ohio,  376;  Williams  v. 

Dean  v.  Com.,  4  Gratt.  541.,  School  Dist,  Wright,  578.    See  dis- 

1  Johnson  v.  Norwich,  39  Conn,  senting   opinion,    P.    v.  Dean,  14 

408;  Van  Campu.  Board  of  Educa-  Mich.  406;  Walker  v.  Brockway,  1 

tion,  9  O.  St.  411.  Mich.  57. 

2McPherson  v.  Com.,  38  Gratt.  *  Jeffries  v.  Ankeny,  11  O.  375;. 

939;  Jones  v.  Com.,  80  Va.  543.  United  States  v.  Barryman,  31  Alb> 

^S.  V.  Dempsey,  9  Ire.  Law,  384;  Law  J.  194 

Gentry  v.  McMinnis,  3  Dana,  383;  ^ije  Camille,  6  Fed.  356. 

S.  V.  Chavers,  5  Jones  Law  (N.  C),  7  Be  Ah  Yup,  5  Saw.  155. 

11;  P.  uHaU,  4CaL  399;  S.  u  Mel-  8  state    v.  Gibson,  36    Ind.   389, 

ton,  Busbee,  49.    See,  also.  White  v.  citing  Lane  Co.  v.  Oregon,  7  WalL 

Tax  CoUector,  3  Rich.  136;  Pauska  76;  Collector  v.  Day,  11  Wall.  113;. 

V.  Dans,  31  Tex.  67;  People  v.  Dean,  Prigg  v.  Com.,  16  Pet.  635;  City  of 

14  Mich.  406.  New  York  v.  Miln,  11  Pet.  103,  139, 

<  BaUey  v.  Fiske.  34  Me.  77 ;  Lane 


§719.]  MISOEGENATIOSr.  649 

United  States ;  and  that  such  citizens  of  every  race  and  color, 
\Yithout  regard  to  any  previous  condition  of  slavery  or  in- 
voluntary servitude,  except  as  a  punishment  for  crime, 
vrhereof  the  party  shall  have  been  duly  convicted,  shall  have 
the  ^ame  right  in  every  state  and  territory  in  the  United 
States  to  make  and  enforce  contracts  .  .  .  as  is  enjoyed 
by  white  persons,  and  shall  be  subject  to  like  punishment, 
pains  and  penalties,  and  to  none  other,  any  law,  statute, 
ordinance,  regulation  or  custom  to  the  contrary  notwith- 
standing." Nor  are  such  state  laws  impaired  by  the  similar 
provisions  of  the  fourteenth  amendment  to  the  constitution, 
declaring  that  no  state  shall  "  deny  to  any  person  the  equal 
protection  of  the  laws." '  The  civil  rights  bill .  extended  its 
protection  to  lawful  contracts  only,  and  did  not  contemplate 
marriages  declared  void  by  the  laws  of  the  state.^  The  state 
law  abridges  the  rights  of  both  parties,  and  punishes  them 
with  the  same  fines  and  penalties.'  Judge  Cooley*  says: 
"  Many  states  prohibit  the  intermarriage  of  white  persons 
and  negroes ;  and  since  the  fourteenth  amendment  this  reg- 
ulation has  been  contested  as  the  offspring  of  race  preju- 
dice, as  establishing  an  unreasonable  discrimination,  and  as 
depriving  one  class  of  the  equal  protection  of  the  laws. 
Strictly,  however,  the  regulation  discriminates  no  more 
against  one  race  than  against  another;  it  merely  forbids 
marriage  between  the  two.  ISov  can  it  be  said  to  so  narrow 
the  privilege  of  marriage  as  practically  to  impede  and  pre- 
vent it.  "Race  prejudice,  no  doubt,  has  had  something  to  do 
with  establishing  this  law,  but  it  cannot  be  said  to  be  so  en- 
tirely without  reason  in  its  support  as  to  be  purely  arbitrary. 
The  general  current  of  judicial  decision  is,  that  it  deprives 

1  Pace  V.  Alabama,  106  U.  S.  583;  son,  80  Mo.  175;  State  v.  Gibson,  36 

Green  v.  State,  58  Ala.  190;  Ellis  v.  Ind.  389;  Frasher  v,  S.,  3  Tex.  Ap. 

S.,  43  Ala.  525;  Ford  v.  S.,  58  Ala.  263;  Lonasu  State,  3  Heisk.  287. 
150;   State  v.  Hairston,  63  N.  C.        ^  Ex  parte 'K.imiej,  Z  Hughes,  1, 

451;    State  v.  Eeinhart,  63  N.  C.  80  Gratt.  858. 
S47;  State  v.  Kenny,  76  N.  C.  251;        ^Ex  rel.  Hobbs,  1  Wood,  587;  Eat 

Burns  v.  State,  48.  Ala.  195;  Hoover  parte  Fracois,  3  Wood,  367. 
V.  State,  59  Ala.  59;  State  v.  Jack-       <  Const.  Law,  328,  229. 


650  MISCE&ENATION.  [§  720. 

a  citizen  of  notliing  that  he  can  claim  as  a  legal  right,  priv- 
ilege or  exemption." 

§  720.  Such  marriages  ralid  unless  declared  Toid  by 
statute. —  The  marriage  of  a  white  person  with  a  negro  or 
person  of  color  is  valid  unless  the  statute  expressly  declares 
such  marriage  void.  This  is  in  conformity  to  the  law  of 
marriage  under  such  disabilities  as  want  of  age  or  mental  or 
physical  incapacity.  Such  marriage  may  therefore  be  valid, 
although  the  statute  makes  it  a  crime  punishable  by  fine  or 
imprisonment.  Generally  the  statutes  declare  such  mar- 
riages void,  and  then  no  decree  of  nullity  is  necessary  before 
contracting  another  marriage.  If  the  statute  declares  that 
"  the  celebration  of  such  marriage  is  forbidden  and  the  mar- 
riage is  void,"  the  invalidity  of  the  marriage  may  be  shown 
in  any  proceeding.^  Although  the  word  "void"  does  not 
appear  in  the  statute,  the  equivalent  words  may  be  sufficient 
to  convey  that  meaning,  as  the  declaration  that  "  ma/rriage 
cannot  he  contracted  between  ^  white  person  and  a  negro,  a 
mulatto  or  person  of  mixed  blood  to  the  third  generation 
inclusive."  ^ 

•  Succession  of  Miniveielle,  15  La.       ^  Carter  v.  Montgomery,  2  Tenn. 
An.  343.  Ch.  21& 


WANT  OF  AGE. 


§  721.  In  general 

723.  Consent  of  parents. 
723.  AfSrming  marriage. 


§  724.  Hojv  marriage  disaiBrmed. 
725.  Statutes  affecting  the  com- 
mon-law age  of  consent. 


§  721.  Ill  general. —  The  incapacity  to  make  valid  con- 
tracts, which  is  termed  infancy,  continues  as  to  both  males 
and  females  until  they  reach  the  age  of  twenty-one.  This 
incapacity  to  enter  into  contracts  did  not  apply  to  the  con- 
tract of  marriage.  The  common  law  fixed  the  age  of  con- 
sent required  for  marriage  at  fourteen  in  males  and  twelve 
in  females.  This  so-called  "age  of  discretion"  seems  to 
have  been  based  upon  the  probable  time  when  the  parties 
might  attain  puberty  and  thus  be  physically  capable  to  bear 
children.  These  ages  were  regarded  as  conclusive  proof  of 
puberty  at  common  law ;  but  it  seems  that  the  canon  law 
permitted  proof  of  puberty  to  be  made  by  actual  inspec- 
tion. These  indecent  examinations  were  not  allowed  in 
England  or  Scotland.^  The  ages  at  which  puberty  is  gen- 
erally attained  is  in  fact  somewhat  later  than  that  fixed  by 
the  canon  law,  which  is  supposed  to  have  been  based  upon 
observations  made  in  Italy,  where  development  is  more 
rapid  than  in  northern  latitudes.  At  aU  events,  the  com- 
jnon-iaw  age  of  consent  has  been  changed  in  many  of  the 
.states,  and  a  greater  age  required  in  every  instance.  No 
marriage  had  any  effect  at  common  law  if  the  parties  were 
less  than  seven  years  old.  A  marriage  contracted  by  parties 
m.ore  than  seven  years  old,  but  less  than  the  age  of  consent, 
was  not  a  mere  nullity,  but  only  an  imperfect  or  inchoate 
marriage,  which  might  be  affirmed  when  the  youngest  party 

1  Johnston  v.  Ferrier,  Mort.  Diet.  8931. 


652  WANT  OF  AGE.  [§  722. 

became  of  age,  and  upon  such  affirmance  -would  become  a 
valid  marriage  without  repeating  a  ceremony  or  its  prelim- 
inaries. 

§  722.  Consent  of  parents. —  The  consent  of  parents  is 
required  in  nearly  all  the  states  in  the  Union  where  the  par- 
ties are  minors.  Generally  the  consent  is  required  unless 
the  male  is  twenty-one  and  the  female  eighteen  years  of 
age.  At  the  common  law  the  consent  of  parents  or  guard- 
ians was  not  necessary  to  a  valid  marriage.'  It  is  univer- 
sally held  that  the  failure  to  procure  the  consent  of  parents 
will  not  render  the  marriage  void  unless  the  statute  ex- 
pressly declares  that  such  failure  wiU  render  the  marriage 
void.'^  This  requirement,  like  the  requirements  of  publication 
of  banns,  license,  solemnization,  return  of  marriage  license, 
etc.,  is  merely  directory  and  penal.  It  is  not  the  intention 
in  such  statutes  to  invalidate  all  marriages  where  there  is 
no  compliance  with  such  regulations.'  Thus  the  statute 
fixing  the  age  of  consent  for  males  and  females,  and  provid- 
ing that  parties  under  such  age  must  first  obtain  the  consent 
of  their  parents  before  a  license  shall  be  issued,  is  merely 
directory,  and  does  not  render  a  marriage  void  without  such 
consent.*    Nor  is  such  a  marriage  void  where  the  statute 

1  Hargraves  u  Thompson,  31  Miss,  penalties  for  violating  such  stat- 
311;  S.  V.  Dole,  20  La.  An.  378;  Gov-  utes,  see  S.  v.  Bittick,  103  Mo.  183, 
ernor  v.  Rector,  39  Tenn.  57;  Pear-  15  S.  W.  335;  Wood  v.  Adams,  35 
son  V.  Howey,  6  Halstead  (N.  J.  N.  H.  33;  Kent  v.  S.;  8  Blackford, 
Law),  13.  163;    Smyth   v.  S.,   13    Ark.    696; 

2  Rex  V.  Birmingham,  8  B.  &  C.  Fitzsimmons  v.  Buckley,  59  Ala. 
29  (1828);  Goodwin  v.  Thompson,  3  539;  Adams  v.  Outright,' 53  III.  361; 
Greene  (la.),  329 ;  Parton  v.  Hervey,  Ely  r.  Gammel,  53  Ala.  584 ;  Vaughn 
67  Mass.  119;  Caterall  v.  Sweet-  v.  McQueen,  9  Mo.  330;  Robinson 
man,  1  Rob.  Ec.  304;  Milford  v.  v.  English,  10  Casey,  334;  Cole  v.: 
Worcester,  7  Mass.  48;  Hiram  v.  Laws,  108  N.  C.  585,  13  S.  E.  985; 
Pierce,  45  Me.  367;  Ferrie  v.  The  Walker  v.  Adams,  109  N.  C.  481,  13 
Public  Adm.,  4  Brad.  (N.  Y.)  38.  S.  E.  907;.Maggett  v.  Roberts  (N. 

3  Pearson  v.  Howey,  6  Halst.  13;  C),  13  S.  E.  890;  Riley  u  Bell  (Ala.), 
Askew    V.    Dupree,    30    Ga.    173;  7  So.  155. 

Courtright  v.  Courtright  (Ohio),  36  « Fitzpatrick  v.  Fitzpatrick,  6 
Week.  Law  BuL  309;  De  Barros  v.  Nev.  63;  Hunter  v.  Milam  (CaL),  41 
De  Barros,  3  P.  D.  1.    For  various    P.  333. 


§  '722.]  WANT    OF   AGE.  653 

contains  the  additional  provision  that  "  nothing  in  this  act 
shall  be  construed  so  as  to  make  the  issue  of  any  marriage 
illegitimate  if  the  person  or  persons  shall  not  be  of  lawful 
age."  1 

The  object  of  the  statutes  requiring  consent  of  the  parents 
of  minors  is  to  prevent  hasty,  ill-considered  and  fraudulent 
marriages,  to  notify  the  parents,  who  are  in  most  cases  liable 
for  the  support  of  the  pair,  and  ultimately  to  discourage 
marriages  at  an  age  when  passions  are  ripe  but  reason  and 
discretion  are  still  immature.  So  grave  are  the  evils  of 
early  and  secret  marriages  that  legislation  in  almost  every 
state  has  required  notice,  consent  of  parents,  license,  etc.  In 
England  at  one  time  it  was  thought  advisable  to  declare 
void  all  marriages  of  minors  not  in  widowhood  (solemnized 
by  license  but  not  including  marriage  by  banns),  when  en- 
tered into  without  the  consent  of  the  father,  if  living,  or,  if 
dead,  of  the  guardian  or  of  the  mother,  or  of  the  court  of 
chancery .*  This  statute  was  construed  in  the  cases  cited 
below.^ 

The  effect  of  this  unwise  legislation  was  to  make  many 
children  illegitimate  and  to  leave  the  marriage  relation  open 
to  attack  at  any  time  by  either  of  the  parties,  or  by  the  par- 
ents who  had  not  consented  to  the  marriage.*  So  great 
were  the  evils  which  arose  from  the  act  and  the  various  in- 
terpretations of  it,  that  it  was  subsequently  repealed  and  a 
statute  was  enacted  declaring  that  all  the  property  accru- 

iFitzpatrick    v.    Fitzpatrick,    6  1  Hag.  Con.  262;  Cresswellu  Cous- 

Nev.  407.  ins,    3    Phillim.    281;    Droney     v. 

2  Lord  Hardwicke's  Marriage  Archer,  3  Phillim.  337;  Fielder  u 
Act,  36  Geo.,  3,  ch.  33,  §  11.  Smith,  3    Hag.   Con.  193;   Clarke 

3  Priestly  v.  Hughes,  11  Eas.  1;  v.  Hankln,  3  Phillim.  328;  Duins 
Days  V.  Jarvis,  3  Hag.  Con.  173;  v.  Donovan,  3  Hag.  Ec.  301;  Rex 
Sullivan  v.  Sullivan,  3  Hag.  Con.  v.  James,  Puss.  &  E.  17;  Piers  u 
238;  ReddaU  v.  Leddiard,  3  Phil-  Piers,  3  H.  L.  Cas.  331;  Rex  v.  But- 
lim.  356;  Johnston  v.  Parker,  3  ler,  Russ.  ,&  R.  61;  Harrison  v. 
Phillim.  39;  Jones  v.  Robinson,  3  Southampton,  31  Eng.  L.  &  Eq.  343i 
Phillim.  285;  Smith  v.  Htison,  1  « Hayes  v.  Watts,  3  Phillim.  43. 
Phillim.  287;  Hodgkinson  v.  Wilkie, 


654  wAiTT  OF  AGE.  [§§  723,  T24. 

ing  from  the  marriage  shall  be  forfeited,  thus  depriving  the 
guilty  party  of  the  pecuniary  benefit  which  is  commonly 
the  inducement  to  such  marriages.^  Fortunately  Lord  Hard- 
Avicke's  marriage  act  was  enacted  too  late  to  become  a  part 
of  oar  common  law.^  It  is  a  piece  of  legislative  folly  from 
which  many  valuable  lessons  may  be  drawn.  However  un- 
wise and  undesirable  child  marriages  may  be,  the  true  policy^ 
consonant  with  good  public  morals  and  the  best  interests  of 
the  state,  the  parties  and  their  offspring,  is  to  preserve  such 
unions  when  once  made;  declare  their  offspring  legitimate,, 
the  marriage  valid.  Such  policy  is  one  of  necessity;  other- 
wise the  validity  of  the  marriage  would  always  be  open  to 
attack.  The  common  law'  has  always  proceeded  upon  this 
principle,  holding  the  consent  of  the  parties  as  sufficient 
without  license  or  solemnization. 

§  723.  Affirming  marriage. —  After  both  parties  have 
attained  the  age  of  consent,  they  may  affirm  the  marriage, 
and,  when  thus  affirmed,  it  becomes  valid  without  a  new 
ceremony.  A  marriage  may  be  affirmed  by  continuing  to 
cohabit,  by  sexual  intercourse,  by  the  wife  assuming  the  hus- 
band's name,'  or  by  any  other  acts  which  show  a  desire  to 
ratify  the  marriage  and  assume  the  marital  relation.  It 
seems  that  such  marriage  may  be  affirmed,  although  the 
statute  has  declared  all  marriages  void  where  the  "parties 
are  unable  to  contract,  or  unwilling  to  contract,  or  fraud- 
ulently induced  to  contract."  * 

§  724r.  How  marriage  disaffirmed.— According  to  com- 
mon-law writers  and  some  ancient  authorities,  the  marriage 
of  minors  could  hot  be  affirmed  or  disaffirmed  until  they 
both  reached  the  age  of  consent.  It  was  supposed  that  this 
inchoate  marriage  must  so  remain  until  the  parties  were 
capable  of  contracting  a  new  marriage.     In  other  words,  the 

iRex  V.  Birmingham,  8  B.  &  C.  173;  Governor  v.  Rector,  39  Tenn. 

39 ;  Act  of  3  G.  4,  ch.  75,  §  1 ;  19  and  57. 

SO  Vict.  ch.  119,  §§  3-17.  3  Holtz  v.  Dick,  43  O.  St.  39. 

2  Pearson  v.  Howey,  6  Halstead  <  Smith  v.  Smith  (Ga.),  11  S.  E. 

(N.  J.),  13;  Askew  v.  Dupree,  30  Ga.  496. 


§  T21.1 


WANT   OF   AGE. 


65& 


iacapacity  to  contract  marriage  was  also  an  incapacity  to 
disaffirm.  But  the  better  opinion  is  that  either  party  may, 
at  any  time  before  the  age  of  consent,  dissent  to  and  dis- 
affirm the  marriage  in  toto}  "  If  the  plaintiff  had  capacity 
to  become  a  party  to  such  imperfect  and  inchoate  or  condi- 
tional marriage,  he  should  have  capacity  to  disaffirm  it  at 
any  tune  thereafter,  before  it  has  ripened  into  an  absolute 
marriage,  by  invoking  the  authority  of  the  court  to  annul 
it  under  the  statute.  ilSTo  good  reason  is  perceived  why  the 
parties  should  be  compelled  to  remain  in  so  unfortunate  a 
jiosition  until  the  plaintiff  becomes  of  age."  ^ 

sent.  Whether  this  is  true  or  not 
at  common  law,  a  disaffirmance 
under  the  age  of  consent  has  been 
recognized  in  our  practice  when- 
ever it  occurred.  Consent  may  re- 
quire intelligence  usual  to  the  age 
fixed  by  the  law,  but  no  policy  of 
our  law  requires  a  like  degree  of 
discretion  to  disafiSrm.  Thus,  in 
New  York  a  man  twenty-three 
years  of  age  married  an  infant 
under  twelve,  who  immediately 
declai-ed  her  dissent  to  the  mar- 
riage, and  the  court  placed  the  in- 
fant under  its  protection  and 
forbade  him  all  intercourse  or  cor- 
respondence with  her.  Aymar  v. 
Ruff,  3  Johns.  Ch.  49.  And  in  more 
recent  decisions  a  disaffirmance 
before  the  statutory  age  of  con- 
sent has  been  held  sufficient.  See 
Eliot  V.  Eliot,  77  Wis.  634.  See 
same  case,  46  N.  W.  806  and  51 
N.  W.  81;  Shafher  v.  State,  20  O. 
1.  The  Michigan  statute  provides 
that  "in  no  case  shall  such  mar- 
riage be  annulled  on  the  applica- 
tion of  the  party  who  was  of  the 
age  of  legal  consent  at  the  time  of 
the  marriage."  People  v.  Slack, 
15  Mich.  193. 


1  See  Tyler  on  Infancy  and  Cov- 
erture, 126. 

-  Eliot  V.  Eliot,  77  Wis.  634,  46  N. 
W.  806. 

Chancellor  Kent  (2  Com.  78),  fol- 
lowing Blackstone,  said:  "No  per- 
sons are  capable  of  binding  them- 
selves in  marriage  until  they  have 
arrived  at  the  age  of  consent. 
Marriage  before  that  age  is  void- 
able at  the  election  of  either  party, 
on  arriving  at  the  age  of  consent, 
if  either  of  the  parties  be  under 
that  age  when  the  contract  is 
made."  In  Co.  Lit.  79,  it  is  said: 
"  The  time  of  agreement  or  disa- 
greement when  they  marry  infra 
annos  nubiles,  is  for  the  woman  at 
twelve  or  after,  and  for  the  man 
at  fourteen  or  after,  and  there 
need  be  no  new  marriage  if  they  so 
agree;  but  disagree  they  cannot 
before  the  said  ages,  and  then  they 
may  disagree  and  marry  again 
to  others  without  any  divorce; 
and  if  they  once  after  give  con- 
sent, they  can  never  disagree 
after."  From  the  above  state- 
ments of  the  common-law  doctrine 
it  would  be  inferred  that  no  valid 
disaffirmance  could  be  made  be- 
fore the  common-law  age  of  con- 


636  WANT   OF   AGE.  [§^25. 

At  any  time  before  the  youngest  party  arrives  at  the 
common-law  age  of  consent,  which  we  have  seen  was  four- 
teen years  in  the  male  and  twelve  years  in  the  female,  either 
party  may  disaffirm  the  marriage.  A  man  of  thirty  may 
marry  a  lass  of  eleven  years  and  disaffirm  such  marriage  at 
any  time  he  chooses  until  she  reaches  the  age  of  consent, 
after  which  he  is  bound  or  not  at  her  election.'  In  ordinary 
contracts,  only  the  minor  may  disaffirm ;  but  in  such  mar- 
riages either  party  may  disaffirm,  for  both  parties  must  be 
bound  or  neither.  It  would  seem  that  a  judicial '  sentence 
of  annulment  would  be  necessary  where  such  imperfect' 
marriage  has  been  disaffirmed.^  This  is  especially  true  in 
our  country  at  the  present  time  when  marriages  are  entered 
on  public  records,  and  this  evidence  may  be  used  in  the 
future  to  disturb  titles  and  bastardize  children.  In  Ohio, 
where  the  statutory  age  of  consent  is  fixed  at  eighteen  for 
males,  a  boy  married  when  he  was  but  sixteen,  and  disaf- 
firmed the  marriage  at  seventeen  by  marrying  another  with 
whom  he  cohabited  after  he  was  eighteen.  This  second 
marriage  was  held  valid  and  the  former  void.  The  disaf- 
firmance was  pronounced  valid,  "  for  our  law  furnishes  no 
method  of  obtaining  a  judicial  sentence  for  annulling  such 
a  marriage ;  unless  the  parties  have  the  means  of  escape  in 
their  own  hands,  none  exists." '  The  Wisconsin  statute  pro- 
vides that  marriages  voidable  for  want  of  age  "  shall  be 
void  from  such  time  as  shall  be  fixed  by  the  judgment  of  a 
court  of  competent  authority  declaring  the  nullity  thereof." 
It  is  further  held  that  such  a  marriage  is  not  an  absolute 
nuUity,  but  is  only  annulled  from  such  time  as  shaU  be 
fixed  by  the  judgment  of  the  court,  and  that  a  party  can- 
not disaffirm  the  first  marriage  by  marrying  another.  Such 
second  marriage  is  bigamy.^ 

§  725.  Statutes  affecting  the  common-law  age  of  con- 
sent.—  It  is  a  general  rule  that  statutes  in  derogation  of  the 

'People  V.  Slack,  15  Mich.  193;  2 But  see  Walls  u  S., 33  Ark.  565. 

Eliot  V.  Eliot,  77  Wis.  634,  51 N.  W.  sghafiier  v.  State,  SO  O.  1. 

81 ;  Shafher  v.  State,  20  O.  1 ;  Walls  « State  v.  Cone,  86  Wis.  498,  57  N. 

V.  S.,  33  Ark.  565;  2  Kent  Com.  44.  W.  50. 


§  725.]  WANT  OF  AGE.  667 

common  law  are  not  extended  by  construction  beyond  their 
general  meaning.  If  the  statute  modifies  some  period  of 
time,  that  alone  will  not  change  the  principles  of  the  common 
law.  Thus,  the  common-law  age  of  consent  is  changed  by 
a  provision  that  "  a  male  under  the  age  of  seventeen  and  a 
female  under  the  age  of  fourteen  years  are  incapable  of  con- 
tracting marriage."  But  such  provision  does  not  render  a 
marriage  of  parties  under  these  ages  void.  The  manifest 
purpose  of  the  enactment  was  to  merely  enlarge  the  age  of 
consent  from  that  fixed  by  the  common  law.'  In  North 
Carolina  the  age  of  consent  is  enlarged  by  a  provision  that 
"  females  under  the  age  of  fourteen  and  males  under  the  age 
of  sixteen  years  shall  be  incapable  of  contracting  marriage."  "■ 
Such-provision,  although  it  changed  the  ages  of  consent,  was 
considered  to  leave  the  common  law  unaltered  in  respect  to 
the  validity  of  the  marriage.  In  Iowa,  the  statute  provid- 
ing for  the  issuing  of  marriage  licenses,  and  directing  what 
officers  may  perform  the  ceremony,  enacted,  among  other 
things,  that  "  male  persons  of  the  age  of  eighteen  years  and 
female  persons  of  the  age  of  fourteen  years,  not  nearer  of 
kin  than  first  cousins,  and  not  having  a  husband  or  wife 
living,  may  be  joined  in  marriage.  Provided  ahoays,  that 
male  persons  under  twenty-one  years,  female  persons  under 
the  age  of  eighteen  years,  shall  first  obtain  the  consent  of 
their  fathers  respectively ;  or,  in  the  case  of  the  death  or  in- 
capacity of  their  fathers,  then  of  their  mothers  or  guardians." 
Such  statute  was  held  merely  directory  and  penal.  It  was 
in  efl'ect  merely  cumulative,  and  did  not  change  the  com- 
mon law.  The  marriage  of  a  daughter  fourteen  years  old, 
without  the  consent  of  her  parents,  was  not  void.' 

The  same  interpretation  has  been  placed  upon  similar 
statutes  in  other  states.^     When  the  statutes  have  raised  the 

»Beggs  V.  State,  55  Ala.  108.  «Parton  v.  Herrey,  67  Mass.  119; 

2  Koonce   v.  Wallace,  7   Jones'    Fitzpatrick  v.  Fitzpatrick,  6  Nev. 
Law  (N.  C),  194  63;  Bennett  v.  Smith,  31  Barb.  439. 

'  Goodwin  v.  Thompson,  3  Greene 
(la,),  339. 
43 


658  WANT  OF  AGE.  [§'^'25. 

age  of  consent,  the  marriage  does  not  become  valid  by  ratt 
fication  when  the  youngest  party  has  reached  the  common- 
law  age  of  consent,  but  is  stiU  inchoate  and  imperfect  until 
such  party  affirms  or  ratifies  the  marriage  after  reaching  the 
statutory  age  of  consent.^  The  common-law  age  of  consent 
is  not  abrogated  by  a  provision  of  a  penal  code  fixing  the 
age  under  wMch  a  female  shall  be  held  incapable  of  consent- 
ing to  unlawful  carnal  knowledge.^ 

1  Eliot  V.  Eliot,  77  "Wis.  634,  51  2  Fisher  v.  Bernard  (Vt.),  37  A. 

N.  W.  81,  citing  People  v.  Slack,  15  316.    But  see  Bennett  v.  Smith,  31 

Mich.  198;  McDeed  v.  McDeed,  67  Barb.  439,  and  Moot  v.  Moot,  37 

IlL  546;  Holtz  v.  Dick,  43  O.  St.  33;  Hun,  288,  where  the  question  was 

Shafher  v.  State,  30  0. 1;  People  v.  raised  but  avoided. 
Bennett,  39  Mich.  208. 


PARTIES. 


I  736.  Who  may  maintain  a  suit 
for  divorce  or  annul- 
ment. 
727.  Third  persons  as  defend- 
ants —  Eight  to  inter- 
vene. 


§  738. 


and 


Coverture,     infancy 
guardianship. 

Insane  persons  as  parties. 
729a.  Death   of  parties  and  re- 
vival of  suit. 


739. 


§  726.  Who  may  maintain  a  snit  for  divorce  or  annul- 
ment.—  The  right  to  sue  for  divorce  is  a  personal  right  and 
can  only  be  exercised  by  one  of  the  parties  of  the  marriage. 
It  is  for  the  injured  party  to  determine  whether  the  cause 
for  divorce  shall  be  condoned,  or  whether  it  shall  be  the 
ground  for  an  application  to  dissolve  the  marriage.  The 
statutes  require  the  plaintiff  to  verify  the  petition  for  di- 
vorce, and  provide  for  no  substituted  verification  as  in- other 
cases,  and  in  other  respects  the  provisions  relating  to  suits 
for  divorce  evidently  contemplate  a  suit  by  one  of  the  mar- 
ried parties.'  It  is  not  certain  that  a  third  person  could 
maintain  such  suit  in  the  ecclesi9,stical  courts." 

In  the  absence  of  any  statute  to  the  contrary  it  would 
seem  that  any  interested  party  might  maintain  an  action  to 
have  a  void  marriage  declared  to  be  so.  Such  marriage  may 
be  a  cloud  upon  titles,  or  may  entitle  a  reputed  spouse  to  a 


'Mohler  v.  Shank's  Estat«  (la.), 
61  N.  W.  981.  The  verification  can- 
not be  made  by  others.  See  Dan- 
iels V.  Daniels,  56  N.  H.  219;  Phil- 
brick  V.  Philbrick,  27  Vt.  786. 

2  In  Morgan  v.  Morgan,  2  Curt. 
Ec.  679,  a  father  was  allowed  to 
maintain  a  suit  for  separation  on 
a  showing  that  his  son  was  a  minor 


and  residing  in  the  East  Indies, 
and  that  the  delay  incident  to  ob- 
taining the  son's  consent  would  re- 
sult in  a  failure  to  preserve  the 
evidence  of  the  wife's  adultery. 
The  court  heard  the  evidence,  but 
before  entering  the  decree  required 
a  proxy  from  the  son  confirming 
and  ratifying  the  acts  of  his  father. 


660  PARTIES.  [§  737. 

distributive  share  of  an  estate.  The  right  is  not  purely  per- 
gonal. A  suit  to  annul  will  not  abate  upon  the  death  of  the 
parties.'  No  affirmance  or  ratification  of  either  party  can 
render  it  void,  and  there  is  no  opportunity  for  the  personal 
volition  required  in  a  suit  for  divorce.  The  ecclesiastical 
law  permitted  third  persons  to  maintain  an  action  to  annul 
'  a  void  marriage,  but  such  persons  must  have  some  interest 
in  the  marriage,  either  as  heirs  or  as  persons  who  might  be 
liable  for  the  support  of  the  parties  or  their  children.^  But 
if  the  marriage  is  voidable  it  is  clear  that  it  is  a  personal 
action,  dependent  upon  the  will  of  the  party  to  affirm  or  dis- 
affirm the  marriage.  Our  statutes  relating  to  annulment  of 
marriage  are  often  so  joined  and  mingled  with  divorce 
statutes  that  this  form  of  action  may  be  classified  as  a  per- 
sonal action,  and  cannot  be  maintained  by  an  interested 
third  party.' 

§  727.  Third  persons  as  defendants  —  Right  to  inter- 
vene.—  In  the  divorce  suit  proper,  in  which  no  ancillary 
relief  is  prayed  for,  no  third  person  will  be  allowed  to  inter- 
vene. The  ecclesiastical  practice  permitted  any  person  hav- 
ing an  interest  in  the  marriage  to  intervene  in  the  nullity 
suit  or  in  the  suit  for  separation.*  But  this  practice  has  not 
been  adopted  in  this  country,  and  the  alleged  paramour  can- 

iSee  Sharon  v.  Terry,  36  Fed.  vorce  and  married  another  man, 

837.  for  the  code  provides  that  the  suit 

2  Sherwood  v.  Ray,  1  Moore  P.  C.  can  only  be  brought  by  either 
853,  was  an  action  by  the  father  party.  Ridgely  v.  Eidgely  (Md.), 
to  annul  a  void  marriage  of  his  29  A.  597.  Where  a  statute  de- 
daughter  to  a  son-in-law,  the  mar-  dares  that  a  certain  marriage,  if 
riage  being  void  on  account  of  in-  contracted  in  good  faith,  shall  be 
cest,  as  the  woman  was  the  de-  declared  void  only  on  the  applica- 
ceased  wife's  sister.  See,  also,  Ray  tion  o^  one  of  the  parties,  it  is  held 
V.  Sherwood,  1  Curt.  Ec.  193;  Fare-  to  be  a  voidable  marriage,  and  can- 
mouth  V.  "Watson,  1  Phillim.  355;  not  be  declared  void  on  the  appli- 
"Wells  V.  Cottam,  3  Swab.  &  T.  cation  of  creditors.  Cropsey  v. 
864.  McKinney,  30  Barb.  47. 

3  Thus,  in  Maryland,  a  husband  <See  Ray  v.  Sherwood,  1  Curt, 
cannot  maintain  this  action  where  Eo.  178,  and  cases  cited, 

his  wife  has  procm-ed  a  void  di- 


§  727.]  PAETiES.  661 

not  intervene  and  contest  the  suit  to  protect  his  character.' 
In  one  case  he  was  permitted  to  take  part  in  the  trial  and 
cross-examine  the  witnesses.^  But  this  practice  is  condemned, 
and  he  is  refused  the  privilege  where  the  suit  is  being  con- 
tested in  good  faith.'  It  would  seem  to  be  the  denial  of  an 
absolute  right  to  hold  that  a  person  charged  with  adultery 
cannot  become  a  party  and  protect  his  character  by  taking 
part  in  the  issues.  It  is  true,  the  alleged  paramour  is  not 
bound  by  the  decree,  as  it  cannot  be  introduced  as  proof  of 
the  same  adultery.  But  to  deny  this  right  opens  the  way 
for  the  parties  to  obtain  a  divorce  by  collusion  and  to  obtain 
a  finding  which  the  party  cannot  contradict  except  collater- 
ally in  a  suit  for  damages  for  slander  and  libel.  To  allow 
such  intervention  would  permit  the  paramour  to  disprove 
false  charges  and  expose  coUusion  and  thus  discourage  suits 
for  divorce.  In  an  action  for  divorce  on  the  ground  of 
adultery  the  paramour  is  a  necessary  party  under  the  stat- 
utes now  in  force  in  England.^ 

Recently  some  of  the  eastern  states  have  enacted  statutes 
permitting  the  paramour  to  intervene  and  assist  in  the  de- 
fense. This  practice  has  some  commendable  features,  as  it 
permits  the  alleged  paramour  to  explain  his  conduct  and 
defend  his  reputation,  when  the  defendant  would  permit 
the  case  to  go  by  default  in  order  to  allow  the  plaintiff  to 
procure  a  divorce.  It  allows  the  alleged  paramour  to  have 
a  standing  as  a  party  before  the  court,  where  an  active  and 
open  defense  may  be  maintained  instead  of  giving  the  de- 

1  Quigley  v.  Quigley,  45  Hun,  23.    Long  v.  Long,  15  P.  D.  318;  Mason 

2  Clay  V.  Clay,  21  Hun,  609.  v.  Mason,  7  P.  D.  233;  Ravensoraft 
^  Burke  v.  Burke,  5  Misc.   Rep.    u  Ravensoraft,  3  P.  &  M.  376 ;  Lyne 

319,  26  N.  Y.  Supp.  57.  v.  Lyne,  1  P.  &  M.  508.    But  the 

*  Wheeler  v.  Wheeler,  14  P.   D.  court  may  in  its  discretion  proceed 

154;  Cox  V.  Cox,  2  P.  &  M.  201;  without  such  co-respondent  when 

Hawks    V.    Hawks,  1   P.   D.    137;  his  name  is  unknown.    Pitt  u  Pitt, 

Hulse  V.  Hulse,  2  P.  &  M.  357;  1  P.  &  M.  464;  Jefiers  u  Jeffers,  3 

Nelson  v.  Nelson,  1  P.  &  M.  510;  P.  D.  90;  Curling  v.  Curling,  14  P. 

Conradi  v.  Conradi,  1  P.  &  M.  163;  D.  13;  Jinking  v.  Jinking,  1  P.  & 

Cornish  v.  Cornish,  15  P.  D.  131;  M.  330. 
Handcock  v.  Peaty,  1  P.  &  M.  335; 


662  PARTIES.  [§  727. 

fendant  secret  assistance.  A  creditor  cannot  be  made  a 
party  to  a  divorce  suit,  although  his  application  alleges  that 
the  suit  is  collusive  and  that  a  divorce  is  sought  by  both 
parties  in  order  to  avoid  his  judgment.^  He  may,  however, 
attend  the  trial  and  assist  the  court  as  a  witness  or  amicus 
curioB.  After  a  decree  has  been  -rendered  annulhng  the 
marriage,  the  mother  of  the  infant  wife  has  no  interest  in 
the  matter  which  will  allow  her  to  intervene  and  become  a 
party  to  the  suit,  especially  where  the  rights  of  an  infant 
defendant  have  been  protected  by  a  guardian  ad  litem?  The 
court  may  hear  her  application  to  set  aside  the  decree  on 
account  of  fraud  and  collusion,  but  no  appeal  lies  from  his 
decision.'  The  children  of  the  parties  cannot  have  a  judg- 
ment vacated  on  account  of  collusion,  although  they  are  as 
much  affected  by  the  decree  as  the  parties  themselves.*  In 
a  suit  for  divorce  the  plaintiff  joined  the  husband,  and  also 
the  woman  who  claimed  to  be  his  wife  by  a  marriage  subse- 
quent to  a  decree  of  divorce.  The  husband  denied  the  al- 
leged marriage  with  the  plaintiff  and  rested  upon  this  issue. 
It  was  held  that  the  interest  of  the  second  wife  in  this  pro- 
ceeding made  her  a  proper  party,  and  that  the  plaintiff 
could  not  dismiss  the  action  until  the  rights  of  the  second 
wife  were  adjudicated.'  A  decree  of  divorce  will  not  be 
set  aside  on  account  of  fraud  and  conspiracy  of  the  parties 
to  effect  a  marriage  of  the  wife  to  another  man,  where  the 
application  to  set  aside  the  decree  is  made  by  the  father  of 
the  second  husband.  The  father  has  not  sufficient  interest 
in  the  former  decree  to  have  the  same  set  aside,  although 
the  divorce  was  a  part  of  a  conspiracy  to  obtain  the  prop- 
arty  of  his  son." 

It  seems  that  a  wife  may  intervene  in  a  suit  to  vacate  a 

•Steams  v.  Steams,  10  Vt.  540.  6 Simmons  v.  Simmons,  32  Hun, 

2  B.  V.  B.,  28  Barb.  299.  551.    In  such  case  the  court  may 

'Id.  make    an    order    compelling   the 

*Baugh  V.  Baugh,  37  Mich.  59.  father  to  pay  the  costs  of  the  ac- 

sWinans  v.  "Vyinans,  124  N.  Y.  tion,  although  the  action  is  ,dis- 

140,  26  N.  E.  293.  missed  for  want  of  jurisdiction. 


§  728.]  PARTIES.  663 

decree  of  divorce,  where  her  marriage  subsequent  to  the  de- 
cree would  be  void  if  the  decree  was  vacated.  For  instance, 
a  husband  while  his  first  wife  was  living  married  again.  He 
then  procured  a  decree  declaring  the  second  marriage  void, 
and  married  a  third  wife.  The  second  wife  was  allowed  to 
open  the  decree  on  the  ground  of  fraud,  and  to  put  in  an 
answer  alleging  the  validity  of  the  marriage.  In  this  pro- 
ceeding the  third  wife  was  permitted  to  intervene  and  set 
up  the  validity  of  the  third  marriage,  and  to  deny  the  valid- 
ity of  the  second  marriage.'  In  a  suit  for  divorce  it  is  not 
necessary  to  join  the  parents  of  the  parties,  although  their 
parents  are  all  parties  to  a  marriage  settlement  which  must 
be  adjusted  in  case  a  divorce  is  granted.^  The  parents  of 
the  parties,  and  perhaps  third  persons,  may  intervene  in  a 
suit  for  divorce  where  the  custody  of  the  children  of  the 
parties  is  to  be  determined,  and  the  court  has  the  power  to 
award  the  custody  to  parties  other  than  the  parents.  Such 
practice  is  followed  in  England,  but  no  instance  is  reported 
in  America.' 

Where  the  plaintiff  seeks  any  ancillary  relief  by  attach- 
ment, injunction,  creditor's  bill,  or  like  process,  aU  third  per- 
sons who  Avould  be  necessary  parties  in  a  direct  proceeding 
may  be  made  parties  to  the  divorce  suit.  Any  person  is  a 
proper  party  who  is  a  creditor  of  the  husband,  or  who  has 
received  a  fraudulent  conveyance  of  real  or  personal  prop- 
erty from  the  husband,  or  who  will  be  affected  by  the  decree 
for  permanent  allowance  or  division  of  property  if  a  divorce 
is  rendered. 

§  728.  Coverture,  infancy  and  guardianship. —  Gen- 
erally the  wife  may  sue  or  defend  in  her  own  name  without 
the  interposition  of  her  next  friend.''  This  was  the  practice 
in  the  ecclesiastical  courts,  and  also  under  the  divorce  act. 

1  Anonymous,  15  Ab.  Pr.  (N.  S.)  to  right  of  third  persons  to  custody 
307.    See  same  case,  2  T.  &  C.  (N.  Y.)    of  children. 

558.  <  Barber  v.  Barber,  21  How.  (U.  S.) 

2  D'Auvillers  v.  Her  Husband,  32  582;  Sprayberry  v.  Mark,  80  Ga.  81 ; 
La.  An.  605.  Jones  i;.  Jones,  18  Me.  308;  Amos 

3  See  cases  cited  in  §  976,  relating  v.  Amos,  4  N.  J.  Eq.  171 ;  Wright 


664  PARTIES.  [§  728. 

This  practice  is  now  regulated  by  statutes  in  most  of  the 
states,  which  authorize  the  wife  to  sue  in  her  own  name. 

A  guardian  ad  litem  is  generally  required  under  the  prac- 
tice in  the  ecclesiastical  courts  and  also  in  the  modern  courts 
of  England  and  America  where  a  party  is  not  of  age.*  The 
general  statute  providing  for  the  appointment  of  guardians 
ad-  litem  is  applicable  to  suits  for  divorce.  Some  forms  of 
the  statute  may  permit  the  infant  to  sue  alone.^  In  Georgia, 
where  the  practice  is  not  regulated  by  statute,  it  was  held 
that  an  infant  might  bring  a  suit  in  her  own  right  without 
a  guardian.  The  reason  assigned  was  that :  "  If  a  wife  is  of 
sufficient  age  to  enter  into  a  marriage,  no  good  reason  oo^' 
curs  to  us  why  she  may  not  maintain  an  action  in  the  courts 
to  dissolve  it.  .  .  .  The  complainant  in  this  case  was  of 
lawful  age  to  contract  marriage  and  make  a  marriage  set- 
tlement, and  such  contracts  made  by  infant  females  being 
as  binding  upon  them  as  if  made  by  adults,  it  would  seem 
that  they  would  be  as  competent  to  maintain  an  action  to 
dissolve  the  marriage  contract,  for  any  of  the  causes  author- 
ized by  law,  as  an  adult  married  woman  would  be." '  This 
ease  seems  to  be  coi-rect  in  principle.  The  same  principle 
applies  to  the  action  to  annul  the  marriage.  An  infant  who 
marries  before  the  age  of  consent  may,  on  arriving  at  that 
age,  affirm  or  disaffirm  the  marriage.  This  right  to  disaffirm 
may  be  enforced  by  the  minor  before  he  arrives  at  majority 
by  a  suit  to  annul  the  marriage.  "  If  the  plaintiff,"  it  is 
said,  "had  capacity  to  become  a;  party  to  such  imperfect 
and  inchoate  or  conditional  marriage,  he  should  have  capac- 
ity to  disaffirm  it  at  any  time  thereafter  before  it  has  rip- 
ened into  an  absolute  marriage  by  invoking  the  authority 
of  the  court  to  annul  it  under  the  statute.   JSTo  good  reason  is 

u  Wright,  3  Tex.  168;  Hawkins  u    6  Phila.  50;  Kenley  u  Kenley,  3 
Hawkins,  4  Sneed,  105;  Smith  v.    How.  (Miss.)  751. 
Smith,  4  Paige  (N.  Y.),  93.   See  ccm-        i  Bowzer   v.  Eicketts,    1    Hagg. 
tra,  Lindemouth  v.  Lindemouth,  3    Con.  318. 
Leg.  Opin.  343;  Howard  v.  Lewis,        ^  Jones  v.  Jones,  18  Me.  308. 

3  Besore  v.  Besore,  49  Ga.  879. 


§  729.]  PAETiES.  665 

perceived  why  the  parties  should  be  compelled  to  remain  in 
so  unfortunate  a  position  until  the  plaintiff  becomes  eighteen 
years  of  age." '  The  incapable  party  may  bring  a  suit  to 
annul  a  marriage  Avithout  a  guardian  where  the  statute  pro- 
vides that,  "  when  either  of  the  parties  to  a  marriage  shall  be 
incapable,  from  want  of  age  or  understanding,  of  contract- 
ing such  marriage,  the  same  may  be  declared  void  on  appli- 
cation of  the  incapable  party."  ^  A  party  under  guardianship 
as  a  spendthrift  is  not  for  that  reason  incompetent  to  sue  in 
his  own  name  ^or  divorce.'  In  case  the  defendant  has  been 
adjudged  an  habitual  drunkard,  it  is  not  necessary  to  make 
defendants  the  committee  who  are  appointed  to  take  care 
of  his  estate.*  The  general  rule  is  that  the  omission  to  pro- 
cure the  appointment  of  a  guardian  or  jprochein  ami  for  an 
infant  plaintiff  is  a  mere  irregularity  not  affecting  the  valid- 
ity of  the  judgment.^  The  error  is  waived  unless  the  objec- 
tion is  raised  by  a  motion  for  nonsuit.^ 

§  729.  Insane  persons  as  parties. — ^^t  is  an  open  ques- 
tion whether  a  divorce  should  be  granted  when  one  of  the 
parties  is  insane."]  The  suit  for  divorce  is  based  upon  some 
marital  wrong  which  the  injured  party  may  waive  if  he  or 
she  may  desire.  [It  is  a  matter  of  personal  volition  whether 
the  injured  party, liotuated  by  his  own  views  of  duty,  pro-| 
priety  and  religion,  shall  condone  the  offense  or  shall  insist  \ 
that  the  marriage  shall  be  dissolved.  Such  volition  cannot 
be  exercised  while  the  injured  party  is  insaneTJi  And  so  it  is 
held  that  a  next  friend  or  guardian  cannot  make  the  election 
for  the  insane  person  and  prosecute  a  divorce  suit  for  him.' 
This  is  in.  harmony  with  the  policy  upon  which  the  state 
has  proceeded  to  permit  divorces.    No  person  is  by  our  law 

1  Eliot  r.  Eliot,  77  Wis.  634,  51  N.  « Blood  v.  Harrington,  8    Pick. 

"W.  81.  553;  Fitch  v.  Fitch,  -18  Wend.  513. 

2 Pence  v.  Aughe,  101  Ind.  317.  ''Worthy  v.  Worthy,  36  Ga.  45, 

3  Richardson    v.  Richardson,  50  91  Am.  D.  758;  Bradford  v.  Abend, 
Vt.  119.  89  111.  78,  31  Am.  R.  67;  Birdzell  u 

4  Gregg  u  Gregg,  48  Hun,  451.  Birdzell,  33  Kan.  433;  Mohler  v. 

5  Tyler   on   Infancy,  page   196;  Shank's  Estate  (la.),  61  N.  W.  981. 
Wolf ord  V.  Oakley,  43  How.  Pr.  118. 


666  PAETiES.  [§  729. 

commanded  to  obtain  divorce  because  some  consideration  of 
public  morals  or  common  propriety  demands  that  the  com- 
fort, and  apparently  the  best  interests  of  the  parties,  would 
be  best  subserved  by  a  dissolution  of  the  mamage.  The 
state,  in  effect,  says  to  the  -injured  party,  it  is  for  you,  and 
you  alone,  to  determine  whether  it  is  your  duty  to  suffer 
the  wrongs  that  have  been  inflicted  upon  you;  whether 
you  can  be  reconciled  to  continue  cohabitation  with  the 
wrong-doer  with  a  hope  of  reforming  him;  or  whether, 
under  all  the  circumstances,  the  situation  has  become  so  in- 
tolerable that  in  your  opinion  a  divorce  is  the  last  resort. 
The  state,  however,  allows  the  guardian  of  an  insane  person 
to  bring  any  suit  necessary  to  enforce  his  legal  rights  in  all 
other  cases.  But  it  is  conceded  that  such  suits,  being  for 
the  protection  of  property  rights  of  the  insane  person,  are 
always  for  his  best  interest. 

There  is  another  and,  perhaps,  better  reason  than  the  one 
above  stated  for  refusing  the  application  of  a  guardian  of 
an  insane  party  for  the  dissolution  of  the  marriage^  The 
absolute  divorce  dissolves  the  marriage,  t]je  common  prop- 
erty of  the  parties  is  divided,  and  the  custody  of  the  children 
is  provided  for.  The  defendant  may  marry  another.  So 
that  if  the  insane  person  is  restored  to  reason  and  desires  to 
disaffirm  all  that  has  been  done  by  the  guardian,  she  will 
find  that  her  property  and  marital  rights  have  been  ad- 
justed and  that  her  only  choice  is  to  affirm  what  has  been 
done.  If  a  decree  of  separation  had  been  granted  this  rea- 
son would  not  apply,  for  the  defendant  could  not  have  en- 
tered into  a  valid  marriage  and  the  property  would  not  be 
divided.^ 

'In  Mohler   v.    Shank's   Estate  ment  by  whicli  the  wife  was  to 

(la.),  61  N.  W.  981,  the  guardian  of  receive  a  gross  sum  in  lieu  of  ali- 

an  insane  husband  brought  suit  mony  and  her  right  of  dower,  and 

for  divorce  on  the  ground  of  the  this  agreement  was  approved  by 

wife's    adultery.     It    was    shown  the  court  and  entered  as  a  part  of 

that  the  wife  had  a  bastard  child,  the  decree,  and  the  amount  was 

During  the  suit  the  guardian  and  paid  to  the  wife.    On  the  death  ,of 

the  wife  entered  into   an  agree-  the  husband  the  wife  brought  a 


§  729.]  PAETiES.  ^667 

The  guardian  or  next  friend  of  an  insane  person  is  author- 
ized in  some  states  to  prosecute  a  suit  for  divorce.*  Such 
statutes  are  desirable,  because  there  are  circumstances  in 
which  it  is  clear  that  the  insane  person  would  seek  a  divorce 
if  he  had  the  mental  capacity  to  do  so,  and  in  such  cases  the 
guardian  or  the  court,  or  iboth  of  them,  should  have  the 
power  to  carry  on  a  divorce  suit.^  7  The  foregoing  reasons 
do  not  apply  to  a  suit  for  a  separation  or  alimony.  This  is 
a  proper  proceeding  for  the  guardian  to  bring,  for  he  can 
determine  for  the  insane  person  the  absolute  necessity  of  a 
separation  and  alimony.'  On  attaining  reason,  the  insane 
person  may  disaffirm  the  separation  and  continue  the  marital 
■  relation,  since  the  defendant  could  not  marry  another  during 
the  separation.  This  form  of  relief  could  be  obtained  by  a 
guardian  for  the  insane  person  in  the  ecclesiastical  courts,^ 
and  also  in  the  modern  divorce  court.^  The  relief  is  also 
granted  in  our  country,  unless  the  statutes  interfere."  l.li  a, 
cause  for  divorce  must  be  proved  in  order  to  recover  alimony, 
it  is  held  that  the  guardian  of  the  insane  person  cannot  bring 
the  action,  for  he  cannot  elect  for  the  insane  persoa  in  such 
case  for  the  same  reasons  that  he  cannot  elect  to  have  the 
marriage  dissolved.'' 

suit  for  a  distributive  share  of  the  tie,  13  Gray,  264;  Denny  v.  Denny, 

estate  on  the  ground  that  she  was  8  Allen,  311;  Fegan's  Estate,  My- 

a  lawful  widow  of  deceased.    It  rick,  Prob.  10.     The  guardian  of 

was  held  that   such    decree  was  an  insane  person  is  authorized  to 

void,    but    having    accepted   the  sue  by  the  English  divorce    act. 

benefits  of  the  decree  she  was  es-  Baker  v.  Baker,  5  P.  D.  143;  s.  C,  6 

topped  to  deny  its  validity.  P.  D.  13;  Fry  v.  Fry,  15  P.  D.  50. 

A  decree  of  divorce  obtained  iir  23  Bishop,  Mar.,  Sep.  &  Div.,  §  535. 

the  name  of  the  wife  by  the  hus-  ' "  While  this  sort  of  divorce  is 

band,  while  the  wife  is  insane  and  never  fit  for  the  sane,''  says  Mr. 

confined  in  an  asylum,  is  void  for  Bishop,  "  it  may  often  be  good  for 

collusion,  and  will  be  set  aside  on  the  insane." 

the  application  of  her  conservator.  *  ParneU  v.  Parnell,  3  Hagg.  Con. 

Bradford  v.  Abend,  89  111.  78.  169. 

igee  form  of  statute  in  Thayer  s-vVoodgate  v.  Taylor,  3  Swab. 

V.  Thayer,  9  R.  I.  377;  Cowan  v.  &  T.  513. 

Cowan,  139  Mass.  377;  Garnett  v.  6Mims  v.  Mims,  33  Ala.  98. 

Garnett,  114  Mass.  379;  Little  ■;;.  Lit-  '  It  was  held  in  Birdzell  v.  Bird- 


668 


PAETIES. 


[§  ^29. 


ijNo  good  reason  can  be  given  why  a  guardian  cannot 
prosecute  a  suit  to  have  a  marriage  of  an  insane  person  an- 
nulled on  account  of  a  prior  marriage  undissolved,  or  in 
other  cases  where  the  marriage  is  absolutely  void  and  can- 
not be  ratified.  No  vohtion  or  election  of  the  insane  party 
can  change  her  statusT]  The  best  interest  of  the  parties  as 
well  as  the  state  requires  that  a  court  of  competent  jurisdic- 
tion should  declare  such  marriage  void  during  the  life-time 
of  the  parties,  and  before  property  rights  become  entangled. 
But  if  the  marriage  is  voidable,  as  for  want  of  age^  impo- 
tency,  fraud  or  duress,  the  suit  is  somewhat  similar  to  an 
action  to  dissolve  the  marriage  and  might  depend  upon  the 


zell,  33  Kan.  433,  that  a  guardian 
of  an  insane  person  could  not  uaain- 
tain  an  action  for  divorce  or  for 
alimony  without  divorce.  As  to 
the  suit  for  divorce  it  was  said: 
"  The  injured  party  may  be  willing 
to  condone  the  wrong,  or,  foi"  rea- 
sons satisfactory  to  himself  or  her- 
self, may  desire  to  continue  the 
marriage  relation,  notwithstand- 
ing the  wrong.  In  the  present 
case,  some  of  the  wrongs  charged 
against  the  defendant  existed  prior 
to  the  insanity  of  the  plaintiff. 
Can  the  guardian  say  that  she  did 
not  condone  them?  .  .  .  Whether 
a  party  who  is  entitled  to  divorce 
shaU  commence  proceedings  to 
procure  the  same  is  purely  a  per- 
sonal matter  resting  solely  with 
the  injured  party,  and  it  requires 
an  intelligence  on  the  part  of  such 
party  to  commence  the  proceed- 
ings, and  such  an  election  cannot 
be  had  from  an  insane  person." 
As  to  alimony,  it  was  said  that  the 
statute  did  not  permit  such  action. 
The  statute  provided  that  "The 
wife  may  obtain  alimony  from  the 


husband  without  a  divorce,  in  an 
action  brought  for  that  purpose  in 
the  district  court,  for  any  of  the 
causes  for  which  a  divorce  may  be 
granted.  The  husband  may  make 
the  same  defense  to  such  action  as 
he  might  to  an  action  for  divorce, 
and  may,  for  sufBcient  cause,  ob- 
tain a  divorce  from  the  wife  in 
such  action."  Civil  Code,  649.  It 
was  said,  "  Can  a  husband  obtain  a 
divorce  from  an  insane  wife?  Can 
a  guardian  defend  her?  She  has  a 
right  to  testify  in  a  divorce  case. 
Can  her  guardian  supply  such  tes- 
timony? A  part  of  the  grounds  for 
divorce  and  alimony  in  the  present 
case  existed  before  the  defendant 
became  insane.  Can  the  guardian 
say  that  she  did  not  condone  the 
wrongs  upon  which  these  grounds 
rest?  .  .  .  There  are  better 
remedies  to  eliforce  this  support 
than  the  strange  one  resorted  to  in 
th  e  present  case.  There  are  all  the 
common-law  remedies,  and  there 
are  the  further  remedies  furnished 
by  the  statutes." 


§  729.]  PARTIES.  669 

same  reasons ;  as  in  either  action  the  plaintiff  can  preserve 
the  marriage  by  affirming  it,  or  refusing  to  have  it  annulled. 
The  fact  that  a  defendant  is  insane  when  a  divorce  suit  is 
brought  may  delay  the  proceeding  if  there  is  hope  of  his  re- 
covery.^ But  if  the  insanity  is  incurable,  the  plaintiff  will 
not  be  debarred  of  her-  right  to  a  divorce  for  an  act  com- 
mitted while  sane.'  The  fact  that  a  defendant  was  insane 
did  not  relieve  him  from  any  liability  at  common  law,  al- 
though courts  of  chancery  might  interfere  by  injunction  in 
order  that  all  the  lunatic's  debtors  might  have  their  claims 
tried  in  one  proceeding.'  No  good  reason  appears  why  a 
defendant  should  be  relieved  from  the  consequences  of  his 
marital  wrongs,  any  more  than  liabilities,  on  account  of 
supervening  insanity.  The  proceeding  is,  however,  much 
embarrassed  by  his  inability  to  make  a  proper  defense. 
There  is  no  doubt  the  insane  defendant  should  be  repre- 
sented by  his  guardian,  who  should  interpose  every  defense 
and  protect  all  his  rights.  If  the  facts  justify,  the  guardian 
may  set  up  causes  for  divorce  in  a  cross-bill  and  ask  for  af- 
firmative relief,  and  also  any  ancillary  relief  to  which  the 
party  may  be  entitled.  The  rights  of  the  insane  defendant 
should  be  protected  by  every  favor  which  the  court  has  the 
discretionary  power  to  grant,  either  in  setting  aside  de- 
faults,* or  in  other  proceeding,  after  the  decree  has  been 
entered.*  In  no  case  should  a  party  urge  the  insanity  of  the 
opposing  party  in  order  to  defeat  a  right  of  an  insane  party 
or  to  do  him  an  injustice.* 

1  Stratford  v.  Stratford,  93  N.  C.  "Tifiany  v.  Tiffany,  84  la.  123,  50 

297.  N.  W.  554. 

2 Id.;    Rathbun    v.    Rathbun,  40  « Allen  v.  Berryliill,  27  la.   534. 

How.  Pr.  328;   Mordaunt  v.  Mon-  In  Douglass  u' Douglass,  31  la.  431, 

creifEe,  L.  R.  2  H.  L.  Sc.  374;  Mor-  the  wife  sued  for  divorce  on  the 

daunt  V.  Mordaunt,  3  P.  &  M.  103.  ground  of  desertion,  and  the  hus- 

See  contra,  Bawden  v.  Bawden,  2  band's  defense  was  that  he  was  in- 

Swab.  &  T.  417.  sane  during  part  of  the  period  and 

3  See  Buswell  on  Insanity,  §§  122-  was  not  wilfully  absent.    The  wife 

134  proved  that  the  husband  deserted 

<Cohn  V,  Cohn,  85  CaL  108.  her  before  he  became  insane,  and 


6Y0  PAETiES.  [§  729a. 

§  729a.  Death  of  parties  and  reyival  of  suit. —  Upon 
the  death  of  either  party  the  suit  terminates  and  cannot  be 
revived.'  It  is  a  personal  action,  and  abates  with  the  death 
of  one  party .^  The  suit  for  divorce  is  generally  prosecuted 
to  obtain  a  dissolution  of  the  marriage,  the  custody  of  the 
children  and  the  right  to  marry  again.  If  death  confers 
this  relief  the  decree  of  the  court  is  anticipated,  and  it  vrould 
be  useless  to  enter  it.'  For  the  same  reason  the  suit  for 
alimony  will  abate,  as  the  wife  can  obtain  her  portion  of 
the  estate.*  The  death  of  one  party  after  the  cause  has 
been  submitted  wiR  dissolve  the  marriage,  and  the  court 
cannot  enter  a  decree  of  divorce  and  alimony  and  direct 
that  the  decree  relate  back  to  a  period  before  the  defend- 
ant's death;  for  the  relationship  has  ceased  and  the  rule 
does  not  apply  to  such  a  case.'  But  another  court  has  held 
that  such  decree  may  be  entered  as  of  the  date  of  submis- 
sion.* Wtere  the  defendant  died  during  the  trial  and  be- 
fore the  retirement  of  the  jury,  the  decree  was  entered  as 
of  the  first  day  of  the  term.''  The  rule  stated  in  Wilson  v. 
Wilson  is  consonant  with  reason  and  the  nature  of  the  situa- 

af ter  his  recovery  and  release  from  '  Kimball  v.  Kimball,  44  N.  H. 

the  asylum  he  declared  he  never  132;  Stanhope  w  Stanhope,  11  P.  D. 

intended  to  live  with  her  again.  103;  Zoellner  v.  Zoellner,  46  Mich. 

Afterwards     he     became    insane  511. 

again  and  continued  to  be  so  at  *  Swan  v.  Harrison,  42  Tenn.  534; 

the  time  of  the  suit.    It  was  held  McBee  v.  McBee,  48  Tenn.  558;  Mc- 

that  he  had  deserted  the  wife  with-  Galium  v.  McCallum,  48  Tenn.  565. 

out  reasonable  cause,  and  a  divorce  But  temporary  alimony  accruing 

was  granted.  before  defendant's  death  may  be 

1  Grant  V.  Grant,  3  Swab.  &  T.  recovered.    Francis  v,  Francis,  31 

533;  Brocas  v.  Brocas,  2  Swab.  &  T.  Gratt  283. 

383;  Downer  v.  Howard,  44  Wis.  'Wilson  v.  Wilson,  73  Mich.  620, 

83;    Sackett  v.  Giles,  3  Barb.  Oh.  41  N.  W.  817. 

204;  Barney  V.  Barney,  14  la.  189;  «Gantt,  J.,  in  Mead  tt  Mead,  1 

O'Hagan  v.  O'Hagan's  Ex.,  4  la.  509.  Mo.  Ap.  247,  citing  Cent.  Sav.  Bank 

2McCurley  v.  MpCurley,  60  Md.  v.  Shine,  48  Mo.  456,  and  the  an- 

185,  45  Am.  R.  717;  Barney  v.  Bar-  cient  practice  in  England,  stated 

ney,  14  la.  189;  Ewald  v.  Corbett,  82  in  Cumber  v.  Wane,  1  Stra.  426. 

CaL  493;  Pearson  v.  Darrington,  83  'Webber  v.  Webber,  83  N.  C.  280. 
Ala.  227. 


§,729a.]  PAETiBs.  '  671 

tion,  and  the  latter  cases  are  wrong  in  applying  the  doctrine 
of  relation  to  actions  for  divorce  and  alimony.^  In  such 
proceeding  the  heirs  are  necessary  parties. 

It  has  been  held  that  an  appeal  from  a  decree  of  divorce 
abates  upon  the  death  of  either  party,  and,  as  the  action 
could  not  be  revived,  the  decree  became  inoperative,^  If  a 
decree  dismisses  the  suit  and  denies  divorce,  it  will  abate  on 
the  death  of  either  party  and  cannot  be  revived,  as  no  party 
could  maintain  the  action.'  But  if  the  suit  is  to  annul  a  void 
marriage  it  is  probable  that  the  court  would  permit  the  suit 
to  be  revived,  and  the  persons  interested  to  be  parties,  for 
the  purpose  of  protecting  property  interests  dependent  upon 
the  marriage.''  If  the  deceased  had  no  property  and  there 
was  no  issue  of  the  alleged  marriage,  a  decree  dismissing 
a  nullity  suit  wiU  not  be  revived,  as  a  decree  of  nullity 
would  be  useless  and  inoperative.'  The  objections  that  a 
suit  for  a  dissolution  of  the  marriage  cannot  be  revived  be- 
cause the  suit  has  abated  as  to  the  subject-matter,  and  can 
only  be  revived  by  those  interested  in  the  subject-matter 
and  not  in  the  consequences  of  the  suit ;  or  that,  if  the  de- 
cree is  reversed,  no  new  trial  can  be  granted,  have  not  been 
approved  by  the  courts.'  The  right  of  appeal  will  not  be 
denied  for  such  reasons.  The  status  of  the  defendant  is 
not  restored  by  the  death  of  the  party  obtaining  the  de- 
cree.   The  party  against  whom  the  decree  was  obtained 

1  Where  an  absolute  divorce  was  band.    No  proceedings  were  taken 

granted  and  the  question  of  ali-  to  revive    the  suit  in  the  lower 

mony  was  reserved  in  the  decree  court  according  to  the  provisions 

for  the  further  order  of  the  court,  of  the  code  which  were  applicable 

the  death  of  the  husband  wiU  not  in  such  case.    Held,  that  a  revivor 

prevent  the  court  from  granting  could  not  be  had  in  the  supreme 

permanent  alimony  out  of  the  de-  court. 

cedent's  estate.    Seilby  v.  Ingham  3  Downer  v.  Howard,  44  Wis.  82. 

(Mich.),  63  N.  W.  538.  <Id. 

2 Barney  v.  Barney,  14  la.  189.  'Id. 

In  Thomas  v.  Thomas,  57  Md.  504,  6  Wren  v.  Moss,  3  Gilm.  (7  III.)  73, 

the  husband  died  before  the  wife  approved  in  Israel  v,  Arthur,  6  Colo, 

had  perfected  her  appeal  from  a  85. 
decree  divorcing  her  from  her  bus- 


672  PAETiEs.  [§  729a. 

ought  not  to  be  concluded  by  the  death  of  the  successful 
party,  if  any  property  rights  are  involved.  An  appeal  is 
said  to  lie  in  such  case  "  to  restore  the  survivor  to  his  or  her 
rights  of  property  divested  erroneously  by  the  decree.  On 
the  reversal  of  a  decree  of  divorce,  the  parties  will  be  placed 
in  the  position  they  occupied  before  the  decree  was  entered, 
and,  if  one  of  them  has  died  between  the  date  of  the  decree 
of  divorce  and  its  reversal,  the  survivor  procuring  the  re- 
versal wiU  be  entitled  to  all  rights  of  succession  or  dower, 
and  the  like,  in  the  estate  of  the  other,  the  same  as  if  no 
divorce  had  ever  been  had ;  but  in  such  case  the  court  need 
not  ordinarily  remand  the  ease,  as  no  other  decree  of  divorce 
can  ever  be  had."  ^ 

A  rule  of  law  should  extend  no  further  than  the  reason 
upon  which  it  proceeds.  If  a  divorce  suit  abates  beyond 
revivor,  for  the  reason  that  death  grants  all  the  relief  that 
the  decree  of  divorce  would  confer,  then  the  rule  does  not 
apply  where  property  rights  and  the  interests  of  third  per- 
sons are  concerned.  Then  the  suit  may  be  revived  and  a 
decree  rendered  adjudicating  the  rights  of  all  parties.^  A 
suit  to  annul  a  marriage  should  not  abate  on  the  death  of 
one  of  the  parties.  It  is  not  a  suit  to  dissolve  the  marriage ; 
nor  is  it  a  proceeding  in  which  the  relief  sought  is  made  un- 

i  Danforth  v,  Danforth,  HI  111.  cases  cited  in  procedure  in  vacat- 

236.  ing  decree  for  fraud,  §  1057. 

Where  it  is   soiight  to   appeal  In  a  suit  to  vacate  a  decree  for 

from  a  deci-ee  of  divorce  after  the  fraud,  all  the  heirs  must  be  made 

death  of    one '  of  the    parties,   or  parties.    Howard    v.    Howard,   47 

where  one  party  dies  after  the  ap-  How.  Pr.   240;  Boyd's  Appeal,  38 

peal  is  taken,  the  proper  practice  Pa.  St.  241. 

is  to  join  all  parties  who  may  be  The  death  of  one  of  the  divorced 

affected  by  a  reversal  of  the  de-  parties  will  not  prevent  the  vaca- 

cree.    In  such  case  the  adminis-  tion  of  a  decree  obtained  by  fraud, 

trator  is  not  the  only  necessary  §  1054. 

party,  but  his  heirs  at  law  must  be  ^  Thomas  v.  Thomas,  57  Md.  604; 

joined.    Israel  v.  Arthur,  6  Colo.  Webber  v.  Webber,  83  N.  C.  280; 

85;  Danforth  v.  Danforth,  111  IlL  McCurley  v.  McCurley,  60  Md.  185; 

236;  Shafer  v.  Shafer,  30  Mich.  168;  Wren  v.  Moss,  7  IlL  73;  s.  a,  3 

Wren  v.  Moss,  3  Gilm.  73.    See  also  Gilm.  73. 


§  T29a.]  PARTIES.  673 

necessary  by  the  death  of  one  party.  The  relief  is  the  very 
■opposite  of  a  dissolution,  for  the  prayer  is  for  the  adjudica- 
tion that  an  assumed  marriage  is  not  and  has  not  been  a 
real  and  valid  marriage.  The  ecclesiastical  courts,  however, 
refused  to  annul  a  marriage  and  bastardize  the  issue  after 
the  death  of  one  of  the  parties,  but  the  validity  of  the  mar- 
riage could  be  attacked  in  other  courts  in  collateral  proceed- 
ings.^ And  this  seems  to  be  the  law  in  our  states,  although 
the  decisions  are  governed  by  statutory  provisions.^  As  the 
law  now  stands,  the  action  to  annul  the  marriage  abates  on 
the  death  of.  one  party,  and  the  action  cannot  be  revived  in 
the  name  of  the  legal  representatives  of  the  deceased.^  The 
legitimacy  of  every  child  of  the  parties,  and  the  title  to  all 
their  real  estate,  and  all  other  questions  which  may  arise 
concerning  the  marriage,  must  be  determined  by  separate 
suits"  in  any  state  in  which  the  questions  may  arise  at  any 
time  in  the  future.*  The  litigation  that  arose  out  of  the 
Gaines  marriage  is  a  good  illustration  of  the  numerous  suits 
that  may  thus  arise.'  And  the  alleged  marriage  with  Sen- 
ator Sharon  was  the  subject  of  a  litigation  equally  famous 
and  complicated.'  Experience  has  shown  that  the  validity 
of  a  marriage  should  be  determined  during  the  hfe-time  of 
both  parties.  But  the  statute  of  every  state  should  permit 
the  nullity  suit  to  proceed  after  the  death  of  one  party.  Or 
if  both  parties  are  dead  the  interested  parties  should  be  al- 

iHinks  V.  Harris,  4  Mod.   Eep.  nen,  34  How.  (U.  S.)  553;  Gaines  u 

182  (1793);  Hemming  v.  Price,  13  New  Orleans,  6  WalL  643;  Gaines 

Mod.  Eep.  433;  Brownsword  v.  Ed-  v.  De  La  Croix,  6  "WalL  719;  New 

wards,  3  Ves.  Sr.  345  (1750).  Orleans  v.  Gaines,  15  Wall.   634; 

2  See  §§  568,  569;  Rawson  v.  Eaw-  Gaines  v.  Fuentes,  3  Otto,  10;  Davis 
son,  156  Mass.  578,  31  N.  E.  653;  u  Gaines,  104  U.  S.  386;  Ex  ■parte 
Pingree  v.  Goodrich,  41  Vt.  47.  Whitney,  IS  Peters,  404. 

3  Id.  « Sharon  v.  Terry,  86  Fed.  337; 
^Fomshill  v.  Murray,   1   Bl^nd    Sharon  u  Hill,  30  Fed.  1;  Ealston 

(Md.),  479  (1836).  u  Sharon,  51  Fed.  703;  Sharon  v. 

5  See  Gaines   v.   Chew,   3  How.  Sharon,  67  Cal.  185;  id.  68  Cal.  336, 

(TJ.  S.)  619;  Patterson  v.  Gaines,  6  id.  75  Cal.  1,  19  P.  345;  id.  79  Cal. 

How.  (U.  S.)  550;  Gaines  v.  Eelf,  633,  33  P.  36;  id.  84  Cal.  434,  33  P. 

13  How.  (U.  S.)  473;  Gaines  v.  Hen-  1100. 
43 


6U 


PAETIES. 


[§  729^, 


lowed  to  go  before  a  proper  tribunal,  and  determine  the 
validity  of  the  marriage  in  one  proceeding,  and  thas  aToid  a 
multiplicity  of  suits.^ 


1  An  action  to  anrnil  a  mairiage 
on  the  ground  of  a  prior  marriage 
undissolved  cannot  be  maintained 
by  the  administrator  of  the  intes- 
tate against  the  widow.  But  the 
probate  court,  in  the  distribution 
of  the  estate,  has  a  right  to  deter- 
mine the  validity  of  the  marriage. 
Pingree  v.  Goodrich,  41  Vt.  47. 
"Where  the  marriage  was  con- 
tracted in  good  faith,  but  it  is  sub- 
sequently discovered  that  the  mar- 


riage is  void  because  the  wife  ha» 
a  former  husband  living,  the  wife 
cannot  maintain  an  action  against 
the  heirs  of  the  deceased  husband 
to  have  the  rnarriage  declared  void 
and  to  declare  legitimate  her  son 
by  deceased.  The  statute  contem- 
plates proceedings  in  such  cases 
between  the  original  parties  while 
both  are  alive.  Rawson  v.  Rawson, 
156  Mass.  578. 


PLEADING. 


I  730.  The  petition. 
781.  Allegation  of  jurisdiction. 
733.  How  marriage  alleged. 
733.  Plaintiff  need  not  anticipate 

defenses. 
73i  Premature  suit. 
735.  Joinder  of  causes. 
786.  Causes  for  ancillary  relief 

may  be  joined. 

737.  The  prayer. 

738.  Verification. 

739.  BiU  of  particulars. 

740.  Supplemental  pleadings. 


i  741. 

743. 
743. 
744. 

745. 

746. 

747. 
748. 


Amendments. 

Demurrer. 

Answer. 

Cross-bill  for  affirmative  re- 
lief. 

Statutes  permitting  cross- 
bills. 

A;^pli<5a-tions  for  temporary 
alimony. 

Applications  for  permanent 
alimony. 

Decree. 


§  730.  The  petition.— The  pleading  filed  by  the  plaint- 
iff at  the  commencement  of  the  action,  is  known  by  the- 
various  names  of  petition,  complaint,  bill  or  libel,  according 
to  the  practice  in  the  different  states.  No  particular  form 
of  this  pleading  is  required.  It  is  clear  that  the  petition 
need  not  conform  to  the  libel  in  the  ecclesiastical  courts,, 
which  alleged  aU  the  facts  both  ultimate  and  probative,  was 
redundant  with  quaint  phraseology,  and  stated  conclusions 
of  law.  It  was  evidently  framed  to  suggest  the  questions, 
for  the  examination  of  witnesses,  to  search  the  conscience  of 
the  defendant  and  obtain  from  him  admissions  under  oath. 
The  modern  petition  must  be  brief,  avoiding  statements  of 
the  evidence  and  conclusions  of  law.  It  must  state  a  cause 
for  divorce  and  all  the  other  facts  required  by  the  statute, 
such  as  the  necessary  residence  within  the  state  and  the 
plaintiff's  good  conduct  and  freedom  from  connivance  or 
collusion.  'No  proof  should  be  received  without  the  proper 
allegations.*    If  the  petition  is  defective  the  court  may  grant 

1  Moores  v.  Moores,  16  N.  J.  Eq.  375;  McQueen  v.  McQueen,  82  N.  C.  471;. 
Hare  v.  Hare,  10  Tex.  355. 


6^16  PLEADING.  [§  T31. 

leave  to  amend,  and  if  this  is  not  done  the  action  must  be 
dismissed.^  Immaterial  or  scandalous  matter  will  be  stricken 
out  as  in  other  cases.^  If  the  pleading  state  a  cause  of  ac- 
tion it  will  be  ^stained,  and  any  minor  defects  will  be 
waived  by  answering  to  the  merits.'  The  petition  must 
comply  with  local  statutes  and  practice  and  be  signed  by 
the  party  or  his  attorney.'' 

§  731.  Allegation  of  Jurisdiction. —  In  nearly  all  the 
states  the  plaintiif  or  one  of  the  parties  is  required  to  reside 
a  given  time  within  the  state  before  the  commencement  of 
the  action.  This  domicile  within  the  state  is  therefore  a 
fact  giving  the  court  the  jurisdiction  to  hear  and  determine 
the  cause.  Where  the  petition  does  not  state  that  the 
plaintiff  has  resided  in  the  state  for  the  time  required  by 
the  statute,  the  action  should  be  dismissed  for  want  of  juris- 
diction.' Such  allegation  is  as  necessary  as  the  allegation 
of  citizenship  of  another  state  which  gives  the  federal  courts 
jurisdiction.*  It  is  a  condition  precedent  to  obtaining  the 
relief  demanded,'  and  is  as  necessary  as  the  allegation  of 

'  Densmore     v.     Densmore,      6  Applications  for  alimony,  §  760. 

Maokey,  544;  Wright  u  Wright,  6  spate  v.  Pate,   6    Mo.    Ap.    49; 

Tex.  3.    See  Amendments,  §  741.  Eichardson  v.  Eichardson,  50  Vt. 

2  Price  V.  Price  (N.  J.  Eq.),  3  A.  119;  Jarvis  v.  Jarvis,  3  Edw.  Ch. 

729;   Moore  v.  Moore,  7  Phil.  617;  462;  Mix  v.  Mixj  1  John.  Ch.  204; 

Burns  v.  Bums,  60  Ind.  259;  Klein  PoweU  v.  Powell,  53  Ind.  513;  Hus- 

V.  Klein,  43  How.  Pr.  (N.  Y.)  166.  ton  v.  Huston,  63  Me.  184;  White 

sConant  v.  Conant,  10  Cal.  349;  v.  White,  45  N.  H.  131;  Kimhall  v. 

Cai-riUo  V.  Carrillo,  6  N.  Y.  Supp.  Kimball,  13  N.  H.  323;  Batchelder 

305;  Brick  v.  Brick,  65  Mich.  330;  v.  Batchelder,  14  N.  H.  380;  Smith 

Huston  u  Huston,  63  Me.  184.  v.  Smith,  13  N.  H.  80;   Young  v. 

<  Daniels  i;.  Daniels,  56  N.H.  319;  Young,  18  Minn.  90;   Greenlaw  v. 

WiUard  v.  Willard,  4  Mass.  506;  Greenlaw,  13  N.  H.  300;  Phelan  u 

Philbriok  v.  Philbrick,  37  Vt.  786.  Phelan,  12  Fla.  450. 

For  forms  of  petitions  for  divorce  ^Erwin  v.  Lowry,  7  How.  (U.  S.) 

see  §  751  to  §  759.  173,  reversing  6  Rob.  303.    It  seems 

Petition  for  divorce  on  account  that  the  falsity  of  such  allegation 

of  cruelty,  §  753.  wUl  not  make  the  judgment  void. 

Petition  for  annulment  of  mar-  For  usual  form  of  this  allegation 

riage,  §§  755,  756.  see  Petitions  for  divorce,  §  751. 

Petition  for  alimony  without  di-  'Eastes  v.  Eastes,  79  Ind.  363;  Ir- 

vorce,  §  759.  win  v.  Irwin  (Okl.),  41  P.  369. 


§  731.J  PLEADING.  G77 

marriage.'  It  has  been  held  that  without  such  allegation 
the  decree  is  void,  having  been  coram  nonjudioe?  But  it 
seems  that  a  failure  to  allege  a  residence  in  the  county  for 
the  required  time  will  not  render  the  decree  void  and  sub- 
ject to  collateral  attack.' 

Usually  the  statutory  expression  concerning  domicile 
should  be  followed,  but  a  departure  from  it  will  not  be  fatal 
if  the  facts  conferring  jurisdiction  can  be  gathered  from  the 
entire  pleading.  The  expression  "  usually  resides  "  is  satis- 
fied by  an  allegation  that  plaintiff  "  now  resides  and  for 
some  while  has  resided  in  this  county."  *  But  under  a  stat- 
ute requiring  that  the  plaintiff  "  shall  at  the  time  of  exhibit- 
ing his  petition  be  an  actual  iona  fide  inhabitant  of  the 
state,  and  shall  have  resided  in  the  county  where  the  suit 
is  filed  six  months  preceding  the  filing  of  the  suit,"  it  is  not 
sufficient  to  allege  that  "plaintiff  is  a  hona  fide  ciiizQn  of 
the  county  of  Bell,  state  of  Texas,  and  has  been  for  more 
than  six  months  before  the  filing  of  this  petition,"  as  he 
may  not  be  the  actual  honafide  inhabitant  required  by  the 
statute.'  "Where  the  statute  provides  that  "no  divorce 
shall  be  granted  to  any  applicant  unless  it  shall  appear  that 
such  applicant  has  resided  in  the  state  of  Florida  for  the 
space  of  two  years  prior  to  the  time  of  such  apphcation," 
the  court  will  not  obtain  jurisdiction  by  an  allegation  that 
"  the  complainant  is,  and  has  been  for  more  than  two  years, 
a  resident  of  this  state,  and  that  the  parties  were  married 
in  Jacksonville,  in  this  state,  according  to  law,  in  April,  1862, 
where  the  parties  have  ever  since  lived."  Both  the  allega- 
tion of  marriage  and  of  jurisdiction  are  defective.*  Where 
the  statute  requires  a  residence  of  "  one  whole  year  next 
before  filing  the  petition,"  an  allegation  that  the  plaintiff 

1  Bennett    v.    Bennett,    28    Cal.    v.  Gant,  49  Mo.  Ap.  3,  denying  Pate 
599.  V.  Pate,  6  Mo.  Ap.  49. 

2  Cole  V.  Cole,  3  Mo.  Ap.  571.  <Loohnane  v.  Lochnane,  78  Ky* 
aWerz  u  Werz,  11  Mo.  Ap.  26.    467. 

In  a  later  case  it  is  held  that  the        SHaymond  v.  Haymond,  74  Tex^ 

allegation  as  to  the  residence  in    414. 

the  county  is  not  necessary.    Gant        «  Burns  v.  Burns,  13  Fla.  369. 


'678  PLEADING.  [§  732. 

"  has  for  more  than  one  year  prior  to  the  filing  of  this  peti- 
tion been  a  resident,"  is  insufficient.' 

§  732.  How  marriage  alleged. —  The  marriage  of  the 
parties  is  a  necessary  allegation  in  every  proceeding  for 
divorce  or  annulment.^  Unless  there  has^  been  a  valid  mar- 
riage there  is  no  cause  of  action  in  either  case,  for  there  is 
nothing  to  dissolve  or  annul.'  It  is  not  necessary  to  allege 
the  courtship,  though  such  was  the  ecclesiastical  practice.* 
It  is  customary  to  allege  the  wife's  maiden  name,  whether 
she  be  plaintiff  or  defendant,  as  such  allegation  helps  to 
identify  the  wife  and  to  explain  the  certificate  of  marriage 
Avhen  offered  in  evidence.  But  such  allegation  does  not 
seem  to  be  necessary  to  a  statement  of  a  cause  of  action. 
The  name  of  the  officer  who  performed  the  ceremony,  his 
official  character,  the  procurement  of  a  license,  the  return, 
the  witnesses  and  other  circumstances  are  merely  probative 
facts  and  not  required  by  the  rules  of  code  pleading.*  The 
marriage  itself  is  the  ultimate  fact  to  be  proven.  The  place 
where  the  marriage  took  place  should  be  alleged  as  a  matter 
of  convenience,  and  as  stating  an  additional  fact  to  aid  the 
allegation  of  jurisdiction.  In  some  states  the  practice  and 
the  form  of  the  statutes  require  that  the  place  of  marriage 
be  alleged.*  The  age  of  the  parties  should  be  alleged ;  but 
it  is  not  a  necessary  averment  unless  required  by  statute.'' 
"Where  the  marriage  was  without  formal  solemnization,  or 
was  irregular,  or  did  not  comply  with  the  statutory  require- 
ments, it  is  the  practice  in  some  states  to  set  out  the  facts 

1  Collins  V.  Collins,  53  Mo.  Ap.    Pool,   3  Phillim.  119;   Brinokle  v. 
470.    No  allegation  of  domicile  is    Brinckle,  10  Phila.  1. 

required  in  cross-bills.    §  744.  *  Dillon  v.  Dillon,  3  Curt.  Ec.  86. 

2  For  allegation  of  marriage,  see  *  See  Huston  v.  Huston,  63  Me. 
§  751.  184,  where  petition  was  held  suflB- 

3  Huston  V.  Huston,  63  Me.  184;  cient  without  an  allegation  of  such 
Gray  v.  Gray,  15  Ala.  779;  Wright  facts. 

V.  Wright,  6  Tex.  3;  Greenlaw  v.  *  Greenlaw  v.  Greenlaw,  13  N.  H. 
Greenlaw,  13  N.  H.  300;  Leighton  300;  White  v.  White,  5  N.  H.  476; 
V.  Leighton,  14  Jur.   318;  Pool  v.     Mix  r.  Mix,  1  Johns.  Ch.  304. 

7  Lattier  v.  Lattier,  5  O.  538 


§  733.]  PLEADING.  679 

concerning  the  marriage.  A  demurrer  will  then  test  the 
validity  of  such  marriage.'  "Where  the  validity  of  the  mar- 
riage is  in  question  ia  divorce  proceedings,  this  method  is  to 
be  preferred,  as  a  question  of  law  may  thus  be  disposed  of 
before  proceeding  to  trial.^ 

§  733.  Plaintiif  need  not  anticipate  defenses. —  The  peti- 
tion is  sufficient  if  it  set  out  the  jurisdiction  of  the  court  and 
the  marriage  and  the  misconduct  of  defendant  amounting  to 
a  cause  for  divorce.  It  is  not  necessary  to  allege  the  virtues 
of  the  plaintifif,  since  the  right  to  relief  is  based  upon  the  de- 
fendant's misconduct.  Such  allegation  is,  however,  very 
frequent  in  modern  practice,  but  does  not  add  anything  to 
the  strength  of  the  pleading.  It  is  not  necessary  for  the 
petition  to  show  that  the  adultery  which  is  the  cause  of  ac- 
tion has  not  been  condoned,  or  was  not  committed  by  the 
procurement  or  with  the  connivance  of  the  plaintiff.'  Nor 
need  the  petition  contain  the  negative  averment  that  the 
plaintiff  is  not  in  fault  or  himself  guilty  of  like  conduct.'' 
Where  the  plaintiff  seeks  divorce  for  cruelty  it  is  held  that 
the  circumstances  should  be  stated  so  that  it  will  appear  that 
the  cruel  conduct  was  not  provoked.'  This  is  an  exception 
to  the  general  current  of  authorities,  for  the  provocation  is 

1  Farley  v.  Farley,  94  Ala.  501, 10  than  is  required  by  the  rules  of 
So.  646;  Andrews  v.  Andrews,  75  code  pleading.  The  ultimate  facts 
Tex.  609,  12  S.  "W.  1134.  are  all  that  should  be  alleged.    It 

2  In  a  suit  by  the  wife  to  have  a  is  not  necessary  to  allege  the  pro- 
marriage  declared  valid  the  peti-  bative  facts. 

tion  may  state  all  the  facts  which  3  Young  v.  Young,  18  Minn.  90. 
•constitute  marriage,  such  as  the  *  Steele  v.  Steele,  104  N.  0.  631, 10 
agreement  to  marry,  a  marriage  S.  E.  707,  citing  Edwards  v.  Ed- 
ceremony  performed  at  a  certain  wards,  Phil.  (N.  C.)  534;  Home  v. 
time  and  place  by  a  qualified  offi-  Home,  73  N.  C.  530;  Toms  v.  Fite, 
cer,  and  the  subsequent  conduct  93  N.  C.  274. 

and  repute  of  the  parties  as  bus-  *  O'Connor  v.  O'Connor,  109  N.  C. 
band  and  wife.  In  Gibson  v.  Gib-  139,  13  S.  E.  887,  citing  White  v. 
son,  24  Neb.  394  39  N.  W.  450,  the  White,  84  N.  C.  340;  Joyner  v.  Joy- 
petition  set  out  in  the  opinion  al-  ner,  6  Jones  Eq.  332;  Jackson  v. 
leges  aU  the  facts  constituting  the  Jackson,  105  N.  C.  433;  McQueen  v. 
marriage   with  more   minuteness  McQueen,  82  N.  C.  471. 


680  PLEADING.  [§  ISi-. 

as  much  a  defense  as  condonation  or  recrimination.  The 
statutes  of  some  of  the  states  require  the  plaintiff  to  allege 
his  good  behavior,  that  he  is  not  in  fault,  or  ~that  his  com- 
plaint is  not  made  out  of  levity  or  collusion  with  the  defend- 
ant, but  in  sincerity  and  truth.^  And  where  the  pleading- 
does  not  conform  to  this  requirement,  the  action  will  be  dis- 
missed, although  the  objection  was  not  raised  in  the  trial 
court.^ 

§  734.  Premature  suit.— If  the  suit  was  brought  before- 
the  cause  of  action  was  complete  it  should  generally  be  dis- 
missed, unless  the  circumstances  show  something  to  excuse- 
the  premature  commencement  of  the  action.'  In  such  case 
the  suit  should  be  dismissed  without  prejudice,  as  the  merits 
of  the  case  have  not  been  passed  upon.  And  after  the  cause^ 
of  action  is  matured  a  new  suit  may  be  brought.  Ordinarily 
a  suit  for  divorce  on  the  ground  of  desertion  ^ill  present 
some  complex  question  as  to  the  time  the  desertion  com- 
menced, and  if  the  suit  is  brought  in  good  faith  and  in  hon- 
est mistake  of  the  law,  the  court  may,  in  its  discretion,  grant 
the  decree  where  the  period  of  desertion  was  complete  at 
the  time  the  decree  is  rendered.*  To  deny  a  decree  in  such 
cases  will  put  the  plaintiff  to  further  costs  and  delay  the  de- 
cree to  which  he  is  clearly  entitled. 

The  premature  suit  need  not  be  dismissed  where,  by  filing, 
an  amended  petition,  the  cause  will  not  be  premature  or  in- 
complete. Thus,  where  a  petition  for  divorce  and  alimony 
was  prematurely  filed,  it  was  held  an  amended  petition  may 
be  filed  setting  up  grounds  for  alimony  occurring  after  the^ 
commencement  of  the  suit,  and  the  court  might  grant, a  de- 
cree for  alimony.'    Where  the  period  of  desertion  was  not- 

'Yallaly  v.  YaUaly,  39  Mo.  490;  3  Smith  v.  Smith,  33  Kan.   699? 

Cameron  v.  Cameron,  3  Cold-vr.  (43  Embree  v.  Embree,  53  IlL  394;  Hill 

Tenn.)    375;    Epling   v.  Epling,   1  uHill,  10  Ala.537;Milneru  Milner, 

Bush  (Ky.),  74;  Kenemer  v.  Kene-  3  Ed.  Ch.  114. 

mer,  36  Ind.  330;  Fritz  «.  Fritz,  S3  *Henien-way  v.  Hemenway,    65- 

Ind.  888.  Vt.  623,  27  A.  609. 

2  De  Armond  v.  De  Armond,  92  5  Logan  v.  Logan,  3  B.  Mon.  148.- 
Tenn.  40,  20  S.  W.  423. 


§  735.]  PLEADING.  681 

complete  when  the  suit  -was  commenced,  the  error  may  ba 
cured  by  filing  an  amended  petition  after  such  desertion,  is 
sufficient  to  constitute  a  cause  for  divorce.'  In  a  recent  case,. 
a  petition  for  divorce  was  filed  before  the  plaintiff  had  been 
a  resident  of  the  state  for  "  one  year  next  before  the  com- 
mencement of  the  action."  But  after  a  residence  of  one 
year  the  plaintiff  filed  an  amended  petition,  adding  a  new 
and  distinct  cause  for  divorce ;  and  alleged  a  residence  in 
the  state  for  more  than  one  year  next  before  filing  the= 
amended  petition.  It  was  held  that  the  filing  of  the  amended 
petition  was  equivalent  to  the  commencement  of  a  new  suit, 
and  there  was  no  error  in  granting  a  decree.^ 

§  735.  Joinder  of  causes. —  Different  causes  for  divorce, 
such  as  desertion,  cruelty  and  adultery,  may  be  joined  in  the- 
same  petition,  although  one  cause  may  justify  a  decree  for 
a  dissolution  of  the  marriage,  and  the  other  a  decree  for  sep- 
aration.' In  such  case,  where  the  relief  sought  is  a  dissolu- 
tion of  the  marriage,  the  court  may  grant  either  decree,, 
according  to  the  proofs.  The  methods  of  proof  being  the 
same  in  either  case,  the  different  causes  may  be  proved  in 
the  same  action.  A  cause  for  dissolution  of  marriage  and 
a  cause  for  separation  are  not  inconsistent,  since  the  greater 
decree  includes  the  less.^  If  a  cause  for  dissolution  is  shown, 
such  decree  may  be  granted ;  and  if  the  cause  for  separation 
is  the  only  cause  proven,  a  decree  for  separation  may  h& 
granted.  In  those  states  where  the  issue  of  adultery  must 
be  tried  by  a  jury,  while  other  causes  may  be  tried  upon 
depositions  according  to  the  ordinarj''  course  of  the  court  f 
or  where  different  modes  may  be  adopted  for  trying  twa 
different  causes  for  divorce,  only  those  causes  may  be  joined 
which  are  susceptible  of  the  same  mode  of  proof.' 

iMcCrocklin    v.  McCrocilin,    2  "Wagner,  36  Minn.  339;  McDonald 

B.  Mon.  370.  v.  McDonald,  1  Mich.  (N.  P.)  191. 

2Woodu  Wood,  59  Ark.  441.  ^  Wagner  v.  Wagner,  36  Minn. 

3  Mack  V.  Handy,  39  La.  An.  491,  339. 

2  So.  181;  Grant  «.  Grant,  53  Minn.  ^Zorn  v.  Zorn,  38  Hun,  67;  Mc 

181,   54    N.   W.    1059;    Wagner  v.  Namara  v.  McNamara,  9  Abb.  Pr, 


682  PLEADING.  [§  736. 

§  736.  Causes  for  ancillary  relief  may  be  joined. —  The 

divorce  suit  being  a  proceeding  to  dissolve  the  marriage  and 
permit  the  parties  to  separate,  it  may  also  be  a  suit  to  di- 
vide the  community  property ;  to  adjust  the  mutual  accounts 
of  the  parties;  to  determine  "who  shall  own  and  occupy  the 
homestead,  and  to  determine  who  is  entitled  to  the  custody 
of  the  children,  and  who  is  to  bear  the  burden  of  their  main- 
tenance and  education.  When  the  marriage  is  dissolved  it 
as  the  proper  time  and  the  right  proceeding  in'  which  to  ad- 
just all  the  property  rights  of  the  parties.  The  decree  of 
■divorce  is  in  effect  an  adjudication  of  such  matters.  But  in 
order  to  give  the  court  the  power  to  grant  such  ancillary 
reliief,  the  pleadings  must  contain ,  sufficient  allegations  to 
raise  an  issue  concerning  the  relief  demanded,  otherwise  the 
action  of  the  court  will  be  a  mere  nullity.^  As  in  other 
suits,  the  orders  and  decrees  must  be  justified  by  the  plead- 
ings as  well  as  by  the  proofs.  If  an  injunction  is  prayed 
for,  the  petition  must  state  sufficient  facts  to  justify  an  in- 
junction.^ And  if  the  relief  sought  is  to  affect  certain  real 
estate,  it  is  necessary  to  describe  the  real  estate  with  the 
same  care  as  in  other  actions.'  Generally  the  wife  must 
give  a  bond  as  in  the  case  of  an  ordinary  injunction.* 

The  causes  for  ancillary  relief  which  may  be  joined  with 
a  cause  for  divorce  must  be  in  some  way  directly  depending 
upon  the  right  to  divorce,  and  must  concern  the  mutual 
property  rights  of  both  parties.  It  must  be  to  protect  or  to 
adjudicate  rights  which  cannot  with  safety  and  propriety 

18;  Henry  v.  Henry,  17  Abb.  Pr.  41;  HaU  v.  Hall,  9  Or.  453;  Weber  v. 

Johnson  v.  Johnson,  6  Johns.  Ch.  Weber,  16  Or.  163;   Eemington  v. 

163;  Eose  u  Rose,  11  Paige  (N.  Y.),  Supr.  Ct,  69   Cal.   633,   11  P.  353; 

166;  Smith  v.  Smith,  4  Paige,  93;  Handling.  Handlin,   37  West  Va., 

Mcintosh  V.  Mcintosh,  13  How.  Pr.  486,  16  S.  E.  597. 

:289;  HofCman  u  Hoffman,  35  How.  ^Norris  v.  Norris,   37  Ala.  519; 

Pr.  384;  Klein  v.  Klein,  43  How.  Pr.  Uhl  v.  Irwin  (Okl.),  41  P.  376. 

166;  Snover  v.  Snover,  10  N.  J.  Eq.  3  Bamford  v.  Bamford,  4  Or.  80. 

■261 ;  Decamp  v.  Decamp,  8  N.  J.  See  petition  to  set  aside  fraudulent 

Eq.  394.  conveyances,  §  758. 

'  Bamford  v.  Bamford,  4  Or.  30;  « Jn  re  Pavey,  53  Kan.  675. 


§  736.]  PLEADING.  683 

be  determined  after  a  divorce  has  been  granted  and  mutual 
property  rights  adjusted.  In  the  proceeding  for  divorce  it 
is  proper  to  join,  either  in  the  same  or  a  supplementary  pro- 
ceeding, an  application  to  enjoin  the  defendant  from  inter- 
fering with  the  present  custody  of  children,  or  the  transfer 
of  his  property  to  avoid  the  payment  of  alimony.' 

While  the  suit  is  pending  the  parties  have  a  right  to  live 
in  sejaaration,  and  one  party  may  be  enjoined  from  entering 
the  home.  Where  a  husband  is  guilty  of  a  cause  for  di- 
vorce he  may  be  enjoined  from  entering  a  house  or  a  place 
of  business  occupied  and  owned  by  the  wife.^ 

A  creditor's  bUl  may  be  joined  with  an  action  for  divorce 
where  the  object  is  to  set  aside  a  fraudulent  conveyance  to 
third  parties,  and  subject  the  property  to  the  payment  of 
alimony,  if  granted.' 

But  no  action  can  be  joined  with  the  action  for  divorce 
when  the  relief  sought  has  no  congruity  with  divorce  and 
the  settlements  arising  out  of  a  dissolution  of  the  marriage. 
If  the  plaintiff  can  obtain  the  same  relief  in  an  independent 
action,  or  if  the  property  in  controversy  will  be  secure 
while  the  divorce  suit  is  pending,  the  issues  should  not  be 

iBusenbark    v.     Busenbark,    33  s  t well  ?;.  T well,  6  Mont.  19,  and 

Kan.  573;  Boils  v.  Boils,  41  Tenn.  cases  cited;  Vanduzerw.Vanduzer, 

284;  Wharton  v.  Wharton,  57  la.  6  Paige,  366;  Livermorev.  Boutelle, 

696;   Ricketts  v.  Ricketts,   4  Gill  11. Gray,  317;  Chase  v.  Chase,  105 

(Md.),  105;  Johnson  v.  Johnson,  59  Mass.  387;  Barrett  v.  Barrett,  5  Or. 

Ga.  613;  Vanzant  v.  Vanzant,  33  413;  Bailey  v.  Bailey,  61  Me.  363 

UL  536;  Errisman  v.  Errisman,  35  Bouslaugh  v.  Bouslaugh,  68  Pa.  St, 

ru.  119,136;  Springfield  Ins.  Co.  v.  495;  Turner  u  Turner,  44  Ala.  437 

Peck,  103  111.  365;  Wiley  v.  Wiley,  Morrison  v.  Morrison,  49  N.  H.  69 

33  Tex.  358;  Tolertonu  Willard,  30  Kamp  v.  Kamp,  46  How.  Pr.  143 

O.  St.  579;  Wilkinson  v.  Elliot,  43  Draper  v.  Draper,  68  IlL  17;  Nix  v. 

Kan.   590,  23  P.  614;   Vermilye  v.  Nix,  lOHeisk.546;  Duganu.Trisler, 

Vermilye,  33  Minn.  499.    See  con-  69  Ind.  553;  Way  v.  Way,  67  Wis. 

tra,  Newton  v.  Newton,  11  P.  D.  11 ;  662;  Damon  v.  Damon,  38  Wis.  510 

Wagoner  v.  Wagoner  (Md.),  36  A.  Gibson  u  Gibson,  46  Wis.  449;  Boog 

284  uBoog,  78  la.  524;  Atkins  V.  Atkins, 

2  Northledge  v.  Northledge,  6  Rep.  18  Neb.  474. 
<1894),  65;  Gardner  v.  Gardner,  87 
N.  Y.  14  reversing  34  Hun,  637. 


681  PLEADING.  [§  73T. 

tried  in  a  divorce  suit  but  in  a  separate  action,  where  a  single 
issue  may  be  tried  by  the  proper  parties.  Thus,  an  action 
to  quiet  title  cannot  be  joined  with  an  action  to  annul  the 
marriage.'  An  action  to  recover  personal  property  and  to 
settle  an  estate ;  ^  or  to  adjust  accounts  with  a  mortgagee 
who  is  in  possession  of  the  community  property ; '  or  to  en- 
force a  deed;*  or  to  set  aside  a  deed  to  the  wife's  land,* 
should  not  be  joined  with  a  suit  for  divorce,  as  in  any  of 
these  cases  the  same  relief  could  be  obtained  in  a  separate 
action.  In  one  case,  where  a  divorce  was  refused  and  the 
wife  had  some  property  in  her  own  right,  while  the  husband 
had  none,  and  no  alimony  was  awarded,  the  court  did  not 
consider  the  proceeding  a  proper  one  for  an  accounting  be- 
tween the  husband  and  wife  for  the  wife's  separate  prop- 
erty. "  The  property  claimed  by  the  complainant  does  not 
relate  to  or  grow  out  of  the  marital  relation.  It  was  her 
separate  estate,  subject  to  her  entire  control  independent  of 
her  husband.  Its  recovery  had  no  congruity  whatever  with 
her  action  for  divorce,  and  should  have  been  sought  in  an 
independent  action."  ^  But  in  case  a  decree  had  been  granted 
and  the  property  divided,  it  is  clear  that  such  accounting 
would  have  been  necessary  to  a  complete  adjustment  x)f  their 
rights.  The  divorce  suit  must  be  determined,  of  course,  be- 
fore the  trial  of  the  issues  concerning  the  ancillary  relief. 

§  737.  The  prayer. —  The  usual  practice  is  to  pray  for  the 
specific  relief  desired,  and  also  for  such  general  relief  as  may 
seem  just  and  equitable.'  Under  this  form  of  prayer  the 
plaintifif  may  have  any  decree  which  is  sustained  by  the 
pleadings  and  proof,'  or  which  is  "  consistent  with  the  case 
made  by  the  complaint  and  embraced  within  the  issue."  * 
It  is  held  that  under  the  general  prayer  a  plaintiff  is  entitled 

1  Uhl  V.  Uhl,  53  Cal.  350.  e  pgck  v.  Peck,  id. 

2  Faulk  V.  FaxUk,  33  Tex.  653.  ^  See  petitions  for  divorce,  §  731. 

3  Cummings  v.  Cummings,  75  Cal.  8  Pillow  v.  Pillow,  13  Tenn.  420. 
434,  14  P.  563.  9  Cummings  v.  Cummings,  75  CaL 

■1  Fritz  V.  Fritz,  23  Ind.  388.  434,  14  P.  562. 

5  Peck  V.  Peck,  66  Mich.  586,  33 
N.  W.  893. 


§  737.]  PLEADING.  '  685 

to  a  decree  for  alimony,  for  such  relief  is  incidental  to  a  de- 
cree for  divorce.!  But  the  best  practice  is  to  set  out  the 
facts  which  entitle  the  party  to  alimony  and  ask  for  such 
specific  relief.  And  if  any  ancillary  relief  is  sought,  such  as 
the  custody  of  children,  a  writ  ne  exeat,  or  an  injunction  to 
restrain  the  defendant  from  interfering  with  the  plaintiff  or 
disposing  of  his  property,  the  petition  must  contain  the  nec- 
essary allegation  and  a  specific  prayer  for  such  relief.^  A 
judgment  by  default  must  be  vacated  if  the  ancillary  relief 
granted  is  greater  than  that  asked  for  in  the  petition.'  If 
the  prayer  is  specific  that  relief  wiH  be  granted.  But  if  the 
proofs  do  not  justify  the  relief  prayed  for,  no  other  will  be 
granted.*  It  is  held  error  to  decree  a  divorce  a  vinculo 
under  a  prayer  for  alimony  and  general  relief.'  Directly 
opposed  to  these  rulings  is  the  better  doctrine  that  the  court 
will  grant  the  relief  that  is  justified  by  the  pleading  and 
proof.  Thus  a  decree  of  divorce  may  be  granted  although 
the  prayer  is  for  a  decree  of  nullity.* 

In  those  states  where  a  cause  for  separation  may  be  joined 
with  a  cause  for  dissolution  of  the  marriage,  the  prayer  may 
be  in  the  alternative  form.  This  is  not  a  violation  of  the 
rule  of  pleading  that  the  kinds  of  relief  sought  must  be 
consistent.'  Although  the  absolute  divorce  and  the  limited 
divorce  are  provided  for  by  separate  and  distinct  sections  of 
a  statute,  yet  the  proceedings  which  lead  to'  the  decree  are 
the  same  in  both  cases.  The  two  forms  of  relief  are  not 
inconsistent,  for  the  absolute  divorce  may  be  said  to  include 
the  limited  divorce  as  the  whole  includes  the  part.  The  re- 
lief in  either  case  is  a  change  of  the  marital  relation,  and 

iDarrow  u  Darrow,  43  la.  411.  3  Hoh  v.  Hoh,  84  Wis.  378,  54  N. 

2  Handlin  v.  Handlin,  37  W.  Va.  W.  731. 

486, 16  S.  E.  597;  Feigley  v.  Feigley,  *  "Walton  v.  "Walton,  33  Barb.  303, 

7  Md.   537;   Gibson  v.   Gibson,  46  20  How.  Pr.  347. 

"Wis.  449;  "Wilson  v.  Wilson,  Wright  5 piUow  v.  Pillow,  13  Tenn.  430. 

(O.),  139;  Bayly  v.  Bayly,  3  Md.  Ch.  ecaton  v.  Caton,  6  Mackey,  310. 

336;  Edmonds  v.  Her  Husband,  4  See,  also,  Tefft  v.  TefEt,  85  Ind.  44; 

La.  An.  489.  Powell  v.  Powell,  18  Kan.  371. 

'Bliss,  Code  Pleading,  §  164. 


686  PLEADING.  [§  738, 

the  difference  in  the  decrees  is  one  of  degree  and  not  of 
kindt^  For  like  reasons  a  bill  for  divorce  may  be  converted 
into  a  bill  for  separate  maintenance.^  The  general  practice 
is  beKeved  to  be  in  accord  with  this  doctrine.  The  two 
lands  of  relief  are  asked  in  the  same  proceeding,  and,  the 
prayer  being  in  the  alternative,  the  court  grants  the  one  or 
the  other  according  to  the  proof.'  The  court  having  juds- 
diction  of  the  parties  and  the  subject-matter  should  retain 
the  cause  and  grant  complete  relief.*  Under  the  practice  in 
the  code  states  the  prayer  may  always  be  amended  to  con- 
form to  the  pleadings  and  proof  if  both  parties  are  before 
the  court  and  the  cause  of  action  is  not  changed.  A  prayer 
for  divorce  cannot  be  amended  to  a  prayer  for  annulment 
of  the  marriage,  although  the  pleading  and  evidence  would 
support  a  decree  of  nullity.'  But  where  the  allegations-  of 
the  petition  are  sufficient,  a  prayer  for  alimony  may  be 
amended  to  a  prayer  for  absolute  divorce.^ 

§  738.  Terification. —  A  verification  to  a  petition  for  di- 
vorce is  not  absolutely  necessary,  even  where  the  plaintiff 
may  require  the  defendant  to  answer  under  oath.'  But  in 
most  of  the  states  a  verification  is  required  by  statute  or  by 
a  rule  of  court  which  is  authorized  by  statute.*  The  verifi- 
cation is  sufficient  if  it  complies  with  th«  provision  of  the 
code  relating  to  verification  of  pleadings:^  Wh«re  the  plead- 
ing is  not  verified  as  required,  the  proper  practice  is  to  move 

1  Grant  v.  Grant,  53  Minn.  181,  «  gee  Anable  v.  Anable,  24  How. 

54  N.  W.  1059;  Wagner -y.  Wagner,  Pr.  92;  Farace  v.  Faraoe,  61  How. 

36  Minn.  239,  30  N.  W.  766;  Fera  v.  Pr.  61;  Beeves  v.  Beeves,  34  Leg. 

Fera,  98  Mass.  155.  Int.  115;  Garrett  v.  Garrett,  4  W. 

^Klemme  v.  Klemme,  37  111.  Ap.  N.  0.  240;  Ex  parte  Bruce,  6  P.  D. 

54.  16;  Grisson  v.  Grisson,  8  W.  N.  C. 

3  Young  V.  Young,  4  Mass.  430.  484;  Dyer  v.  Dyer,  5  N.  H.  271. 

<Bliss,  Code  Pleading,  §166.  SBurdiok    v.  Burdiok,   7  Wash. 

5  Schaftberg   v.    Schaftberg,    52  535,  35  P.  415.    For  form  of  verifl- 
Mich.  429.  cation  required  in  Michigan,  see 

6  Williams  u  Williams  (Ky.),  29  P.  u  McCafErey,   75  Mich,   115,42. 
S.  W.  133.  N.  W.  681. 

'Musseknan    v.   Musselman,   44 
Ind,  106. 


§  739.]  PLEADING.  68T 

to  have  the  action  dismissed,'  and  then  the  court  may  per- 
mit an  amendment  or  enter  a  dismissal.  Should  the  court 
attempt  to  proceed  without  a  verified  petition  against  the* 
defendant's  objection,  m,andamus  will  lie  to  compel  the  court 
to  dismiss  the  action.*  The  verification  being  a  statutory 
requirement,  it  is  held  that  the  defendant  cannot  waive  the 
defect,"  and  the  action  will  be  dismissed  by  the  appellate 
court  although  this  objection  had  not  been  raised  in  the' 
trial  court.*  But  it  would  seem  that  the  statute  is  merely 
directory,  and  after  decree  a  defective  verification  is  a  mere' 
irregularity,  not  a  cause  for  reversal,  unless  the  objection  is- 
raised  in  the  lower  court.*  It  seems  that  a  decree  based 
upon  a  petition  not  verified  is  valid,  and  will  not  be  set  aside 
for  such  defect,  as  the  verification  is  not  a  jurisdictional  requi- 
site.* The  verification  may  be  amended  or  added  after  de- 
cree.' 

§  739.  Bill  of  particulars. —  According  to  an  ancient 
practice,  a  defect  in  a  pleading  might  be  cured  by  subse- 
quently filing  a  bill  of  particulars,  giving  the  definite  facts 
which  should  have  been  stated  in  the  original  pleading.'  In 
some  states  this  practice  continues,  and  it  is  permissible  tO' 
omit  the  usual  allegations  of  time  and  place  until  the  court 
orders  a  bill  of  particulars.*  Such  practice  continues  in  the' 
English  divorce  court,  but  the  bill  of  particulars  will  not. 

1  Warner  v.  Warner,  11  Kan.  131.  '  See,  also,  Bill  of  particulars  inj 

^  Ajrers  V.  Gartner,  90  Mich.  380,  aid  of  allegations  of  adultery,  §  183.. 

51  N.  W.  461.  SKealf  v.  Eealf,  77  Pa.  31;  Han- 

3  Id.  cock's  Appeal,  64  Pa.  470;  Brinokle 

*  De  Armond  v.  De  Armond,  92  v.  Brinckle,  10  Phila.  144;  Edwards- 

Tenn.  41,  20  S.  W.  433.  v.  Edwards,  9  Phila.  617;  Butler  v, 

5  Holcomb  tt  Holcomb,  100  Mich.  Butler,  1  Parson,  339;  Weimar  u 

431,  51)  N.  W.  170.  Weimer,  1  Parson,  539;   Harring- 

<•  McCreaney 'W.  McCreaney,  51a.  ton  v,  Harrington,  107  Mass.  339; 

253;  Darrow  v.  Danrow,  43  la.  411.  Sanders   v.    Sanders,   35  Vt.  713;: 

'Daly  V.  Hosmer  (Mich.),  60  N.  Hawes  v.  Hawes,  83  HI.  386;  Lord 

W.  758.     A  verification  before  an  v.  Lord,  16  W.  N.  C.  496;  Jones  v, 

officer  not  mentioned  in  the  stat-  Jones,  16  W.  N.  C.  370;  Bartol  v, 

ute  is  sufficient,  as  such  statute  is  Bartol,  18  W.  N.  C.  8;  Shisler  v.. 

mterely  directory.  Brown  v.  Brown  Shisler,  19  W.  N.  C.  130. 
<Ind.),  37  N.  E.  143. 


•ess 


PLEADING. 


[§  T40. 


supply  the  defects  of  a  mere  general  allegation.*  The  power 
to  permit  or  require  the  filing  of  a  biU  of  particulars  is  dis- 
<}retionary  with  the  court,  as  is  usually  the  case  with  orders 
concerning  the  issues  preliminary  to  the  trial.^  "Under  the 
rules  of  code  pleading  a  vague  and  indefinite  pleading  should 
be  attacked  by  a  motion  to  make  the  pleading  more  definite 
and  certain,  and  such  is  the  practice  in  most  of  the  code 
states.*  In  New  York,  however,  the  practice  of  filing  a  biH 
of  particulars  still  continues.* 

§  740.  Supplemental  pleadings. —  Causes  for  divorce  aris- 
ing after  filing  the  pleading  cannot  be  proved  as  a  cause  for 
-divorce  unless  a  supplemental  pleading  has  been  filed  con- 
taining the  necessary  allegations.^  In  such  cases  the  subse- 
quent facts  constituting  a  cause  for  divorce  must  be  set  out  in 
a  supplemental  pleading  or  may  be  incorporated  by  amend- 
ment into  the  original  pleadings.*   According  to  the  practice 


iLeete  v.  Leete,  2  Swab.  &  T. 
568;  Brook  v.  Brook,  12  P.  D.  19; 
Codrington  v.  Codrington,  4  Swab. 
.&  T.  63;  Hunt  v.  Hunt,  2  Swab.  & 
T.  574;  Porter  v.  Porter,  3  Swab.  & 
T.  596. 

2  Harrington  v.  Harrington,  107 
Mass.  329. 

3  Freeman  v.  Freeman,  39  Minn. 
370,  40  N.  W.  167. 

4  §  182;  Carrillo  v.  Carrillo,  6  N.  Y. 
Supp.  303;  Carpenter  u  Carpenter, 
17  N.  Y.  Supp.  195;  Mitcbell  v. 
Mitchell,  61  N.  Y.  398;  Codd  v. 
•Codd,  2  Johns.  Ch.  224. 

An  answer  alleged  the  plaintiff's 
adiiltery  in  the  following  terms: 
-"  That  during  the  year  1894,  prior 
to  the  19th  day  of  December,  1894 
the  plaintiff,  without  the  conniv- 
ance, consent,  privity  or  procure- 
ment of  this  defendant,  had  sexual 
intercourse  with  some  man  or  men, 
whose  name  or  names  are  at  the 
present  time  unknown  to  this  de- 


fendant, but  that  such  sexual  in- 
tercourse took  place  in  New  York." 
A  motion  to  make  this  allegation 
more  definite  and  certain  by  stat- 
ing the  places  and  dates  when  and 
where  such  sexual  intercourse  took 
place  was  overruled  because  the 
court  could  determine  with  ordi- 
nary certainty  the  meaning  of 
the  allegation  and  the  defense  in- 
tended. A  bill  of  particulars  should 
have  been  applied  for.  Kelly  v. 
Kelly,  12  Misc.  457. 

5  Marsh  v.  Marsh,  18  N.  J.  Eq. 
281;  Ferrier  v.  Ferrier,  4Edw.  Ch. 
296;  Burden  v.  BurdeU,  2  Barb. 
473;  Feigley  V.  Feigley,  7  Md.  337; 
Klemme  v.  Klemme,  37  ILL  Ap.  54; 
Blanc  V.  Blanc,  67  Hun,  884,  22 
N.  Y.  Supp.  264  But  see,  contra, 
Halstead  v.  Halstead,  26  N.  Y.  Supp. 
758,  5  Misc.  Eep.  416. 

6  Steele  v.  Steele,  35  Conn.  48; 
Cornwall  v.  Cornwall,  30  Hun,  573: 
Butler  V.  Butler,  4  Litt.  (Ky.)  201; 


§  74:1.]  PLEADING.  689 

in  some  states  a  new  subpoena  must  be  served  after  filing 
the  supplemental  bill.'  The  plaintiff  may  file  a  supplement- 
ary petition  asking  for  ancillary  relief,  such  as  injunction  or 
a  creditor's  bill.''  Since  the  interest  of  the  state  demands 
that  no  defense  to  the  proceeding  should  be  suppressed,  the 
courts  always  allow  a  supplemental  answer  to  be  filed,  show- 
ing any  defense  which  may  have  arisen  since  the  original 
answer  was  filed.'  A  party  is  not  compelled  to  file  a  sup- 
plemental petition,  but  may  bi'ing  another  action  based  upon 
a  cause  for  divorce  which  did  not  exist  when  the  former 
proceeding  was  commenced.*  The  granting  or  refusing  the 
privilege  of  filing  a  supplemental  pleading  is  within  the  dis- 
cretionary power  of  the  court,  and  it  may  determine  at  how 
late  a  stage  of  the  action  the  supplemental  pleading  may  be 
filed.'  If  defendant  pleads  condonation,  the  plaintiff  will 
be  granted  leave  to  file  a  supplemental  petition  charging  an 
act  of  adultery  committed  after  the  commencement  of  the 
action.' 

§741.  Amendments. —  The  divorce  suit  is  analogous  to 
a  proceeding  in  equity,  and  amendments  are  permitted  as  in 
such  proceedings  and  not  according  to  the  practice  at  com- 
mon law.'  The  allowance  of  amendments  is  generally  within 
the  discretion  of  the  judge  who  presides  at  the  trial.'  The 
general  concurrence  of  authorities  is  that  amendments  may 
be  allowed  in  divorce  suits  as  in  other  cases.* 

Logan  V.  Logan,  3  B.  Men.  143;  Me-  *  Cordier  v.  Cordier,  26  How.  Pr. 

Crocklin  v.  McCrocklin,  3  B.  Mon.  187. 

370.    See,  contra,  Halstead  v.  Hal-  ^  Scoland  v.  Sooland,  4  Wash.  118, 

stead,  7  Misc.  23;  Neiberg  v.  Nei-  29  P.  930. 

berg,  8  Misa  97.  «  Lutz  v.  Lutz  (N.  J.  Eq.),  20  A. 

1  Eigney  v.  Eigney,  127  N.  Y.  408,  315. 

28  N.  E.  405.  '  Clayburgh    v.    Clayburgh,    15 

2  Peck  V.  Peck,  66  Mich.  586,  33    Weekly  Notes  (Pa.),  3G3. 

N.  W.  893.  '  Harrington  v.  Harrington,  107 


3  Fuller  V.  Fuller,  41  N.  J.  Eq.  189 
Strong  V.  Strong,  3  Eob.  (N.  Y.)  669 
Stilphen  v.  Stilphen,  58  Me,  508 


Mass.  339;  Ford  v.  Ford,  104  Mass. 
198;  Mussehnan  v.  Musselman,  44 
Ind.  106.' 


Armstrong  v.  Armstrong,  27  Ind.        'Briggs  v.  Briggs,  20  Mich.  34; 
186;  Wilson  v.  Wilson,  40  la.  230.       Green  v.  Green,  26  Mich,  437;  Shaf- 
44 


690 


PLEADING. 


[|  741. 


The  prayer  of  the  petition  may  be  changed  from  a  prayer 
for  a  dissolution  of  the  marriage  to  one  for  a  decree  of  sep- 
aration, but  not  otherwise.'  The  discretionary  po"\Ter  to 
permit  amendment  is  so  great  that  it  seems  to  be  without 
limitation,  except  that  the  amendment  shall  not  bring  in  a 
new  cause  of  action,  either  in  an  action  at  law  or  suit  in 
equity  or  in  proceedings  under  the  code.'^  A  prayer  for 
alimony  may  be  amended  to  a  prayer  for  absolute  divorce.^ 

As  in  other  actions  the  pleadings  in  divorce  suits  may  be 
amended  before  the  trial,*  at  the  final  hearing,^  or  during 
the  trial,^  or  after  the  submission  of  the  evidence  to  the 
court.''  The  court  may  permit  the  plaintiff  to  strike  allega- 
tions of  different  acts  of  adultery  from  his  petition  against 
the  defendant's  objection.^  The  pleading  may  be  amended 
to  conform  to  the  evidence  which  has  been  admitted  with- 


berg  V.  Sliafberg,  53  Mich.  429; 
Crawford  v.  Crawford,  17  Fla.  180; 
Armstrong  v.  Armstrong,  37  Ind. 
186;  Errisuian  v.  Errisman,  35  111. 
136;  Fishli  v:  Fishli,  3  Litt.  (Ky.) 
337;  Anderson  v.  Anderso.^  4  Me. 
100;  Inskeep  v.  Inskeep,  5  la.  204; 
Tourtelot  v.  Tourtelot,  4  Mass.  506; 
Whip  V.  Whip,  54  N.  H.  580;  Miller 
V.  Miller,  40  N.  J.  Eq.  475;  Brinkley 
V.  Brinkley,  56  N.  Y.  193;  Rose  v. 
Rose,  11  Paige  (N.  Y.),  166,  192; 
Crocker  v.  Crocker,  Shelden,  374; 
Mix  V.  Mix,  1  Johns.  Ch.  (N.  Y.)  204; 
Robertson  v.  Robertson,  9  Daly,  44; 
Klein  v.  IClein,  9  Daly,  44;  Grove's 
Appeal,  37  Pa.  443;  Power's  Appeal, 
130  Pa.  320:  Hancock  v.  Hancock, 
13  W.  N.  C.  29;  Mathews  v.  Math- 
ews, 6  W.  N.  C.  147;  Perkins  y. 
Perkins,  18  W.  N.  C.  39;  Shay  v. 
Shay,  9  Phila.  531;  Spilsbury  v. 
Spilsbury,  3  Swab.  &  T.  310;  Lap- 
ington  V.  Lapington,  14  P.  D.  31; 
Rowley  v.  Rowley,  1  Swab.  &  T. 


487;  Wright  v.  Wright,  1  Swab.  & 
T.  80;  Ashley  v.  Ashley,  3  Swab. 
&  T.  388. 

'  Hackney  v.  Hackney,  28  Tenn. 
450;  Anderson  v.  Anderson,  4  Me. 
100.  See  Drysdale  v.  Drysdale,  1 
P.  &  M.  365;  Mycock  v.  Mycock,  3 
P.  &  M.  98. 

2  Bliss  on  Code  Pleading,  sea  429. 

3  Williams  v.  WiUiams  (Ky.),  39 
S.  W.  133. 

*  Freeman  v.  Freeman,  39  Minn. 
370, 40  N.  W.  167;  Richards  v.  Rich- 
ards, Wright,  303;  Bird  v.  Bird, 
Wright,  98;  Briggs  v.  Briggs,  20 
Mich.  34. 

5  Barrett  v.  Barrett,  37  N.  J.  Eq. 
29. 

'  Melvin  v.  Melvin,  130  Pa.  6,  18 
A.  920;  Lee  v.  Lee,  3  Wash.  336,  28 
P.  355.  See  Carter  v.  Carter,  152  111. 
434,  28  N.  E.  948. 

'Miller  v.  Miller,  40  N.  J,  Eq.  475. 

8  Peacock  v.  Peacock,  6  Rep. 
(1894),  61. 


§  T42.]  PLEADING.  691 

out  objection,'  but  not  where  such  evidence  disclosed  a  state 
of  facts  entirely  different  from  those  alleged  in  the  petition.^ 
Where  a  cause  was  reversed  by  the  supreme  court,  leave  may 
be  granted  to  amend  the  petition.' 

§  742.  Demurrer. —  The  sufficiency  of  a  petition  or  cross- 
petition  for  divorce  may  be  tested  by  demurrer  as  in  other 
cases.*  In  such  case  the  demurrer  is  not  such  an  admission 
of  the  facts  as  to  justify  a  decree  upon  the  pleading  should 
the  demurrer  be  overruled.  A  demurrer  is  not  in  fact  an 
admission  of  the  truth  of  the  facts  pleaded,  but  is  a  plead- 
ing that  creates  an  issue  of  law  whether  the  facts  alleged 
are  sufficient  to  constitute  a  cause  of  action.  It  is  a  denial 
of  the  proposition  of  law  contained  in  the  petition.'  The 
cause  for  divorce  must  be  proven,  and  cannot  be  granted 
upon  a  demurrer  any  more  than  upon  the  admissions 
and  declarations  of  the  parties.'  The  demurrer  should  be 
overruled  if  all  the  facts  essential  to  the  relief  prayed  for 
have  been  stated  or  may  be  reasonably  inferred  from  the 
facts  alleged.'  As  in  other  cases,  if  the  pleading  is  vague 
and  indefinita  the  defect  should  be  brought  to  the  attention 
of  the  court  by  a  motion  for  a  more  specific  statement  and 
not  by  demurrer.*  The  demurrer  must  be  overruled  if  the 
pleading  is  sufficient  to  entitle  the  party  to  some  relief,  al- 
though not  sufficient  to  justify  the  relief  demanded.'    But 

1  Adams  v.  Adams,  20  N.  H.  399;  gerth,  15  Or.  626,  16  P.  650;  Stone 
O'Connor  v.  O'Connor,  109  N.  C.    v.  Stone,  13  A.  245. 

139, 13  S.  E.  887;  Jackson  v.  Jack-  «Eie  v.  Rie,  34  Ark.  37. 

son,  105  N.  C.  433,  11  S.  E.  443.  THnston  v.  Huston,  63  Me.  184; 

2  Green  t'.  Green,  36  Mich.  437.  Murphy  v.  Murphy,   95  Ind.  430; 

3  Jones  V.  Jones,  62  N.  H.  403.  Steele  u  Steele,  104  N.  C.  631,  10  S. 
See,  also,  Harrison  v.  Harrison,  94  E.  707;  Van  Benthuysen  v.  Van 
Mich.  599,  54  N.  W.  375;  Power's  Benthuysen,  3  N.  Y.  Supp.  238; 
Appeal,  120  Pa.  330.  Holyoke  u  Holyoke,  78  Me.  404. 

4SeeMixi;.Mix,l  Johns.  Ch.  304;  8  Goodwin  v.  Goodwin,  23  N.  J. 
Vance  v.  Vance,  17  Me.  303.  Eq.  310;  Marsh  v.  Marsh,  16  N.  J. 

SRice  V.  Rice,  13  Or.  337,  10  P.  Eq.  391 ;  Black  ?;.  Black,  26  N.  J.  Eq. 
495,  citing  Bliss  on  Code  Pleading,  431;  Brown  v.  Brown  (Ind.),  37  N. 
sec.  418.    See,  also,  Eggerth  v.  Eg-    E.  142. 

9  Hooper  v.  Hooper,  19  Mo.  355. 


692  PLEADING.  [§  743. 

if  the  facts  alleged  do  not  constitute  a  cause  for  divorce  the 
pleading  may  be  amended  or  the  action  dismissed: ' 

§  743.  The  answer. —  The  answer  must  conform  to  the 
practice  in  the  particular  jurisdiction.  Generally  the  divorce 
suit  is  a  suit  in  equity,'  and  the  answer  must  conform  to  the 
requirements  of  an  answer  in  equity.'  In  the  code  states 
the  answer  must  conform  to  the  requirements  of  code  plead- 
ing, and  must  allege  issuable  facts  essential  to  the  defense, 
and  not  relate  the  evidence  by  which  such  facts  will  be  es- 
tablished.^ If  the  answer  follows  the  old  chancery  practice, 
and  alleges  mere  matters  of  evidence  and  probative  facts,  such 
allegations  may  be  stricken  out  as  redundant  and  irrelevant.' 
The  answer  may  traverse  the  allegations  of  the  petition  or 
may  consist  of  a  general  denial.  Under  the  code,  "  a  state- 
ment of  facts  by  way  of  defense,  which  are  merely  incon- 
sistent with  those  stated  by  the  plaintiff,  is,  in  effect,  a  denial."  * 
The  general  denial  puts  in  issue  all  the  material  averments 
of  the  complaint,  and  permits  the  defendant  to  prove  any 
facts  which  negative  those  averments ; '  but  it  will  not  per- 
mit defendant  to  establish  the  usual  defenses, «such  as  collu- 
sion or  connivance.  While  it  is  true  that  the  court  will 
permit  any  evidence  showing  connivance,  and  will  of  its 
own  motion  direct  further  inquiry  concerning  defenses  not 
pleaded,  the  safest  and  best  practice  is  to  set  up  the  defense 
in  the  answer,  otherwise  the  cause  will  be  continued  to  allow 
the  plaintiff  an  opportunity  to  meet  the  issue  raised  at  the 
trial.  "Where  there  is  an  issue  of  this  kind  raised  on  trial, 
and  the  plaintiff  is  taken  by  surprise,  the  court  should  direct 
an  amended  answer  to  be  filed,  and  continue  the  case  if  the 
plaintiff  so  request.     A  general  denial  puts  in  issue  the  mar- 

1  Martin  v.  Martin,  33  W.  Va.  695,  2  For  forms  of  answers  in  suits 

11  8.  E.  13;  Fairohild  v.  Faii;child,  for  divorce  see  §  753. 

43  N.  J.  Eq.  473, 11  A.  426;  Hopper  s  Vermilye  v.  Vermilye,  33  Minn. 

V.  Hopper,  11  Paige,  46.    See  form  499. 

of  answer  in  Warner  v.  Warner,  54  *  Bliss,  Code   Pleading,  cited  in 

Mich.  493;  Paden  v.  Paden,  38  Neb.  Sylvis  v.  Sylvis,  11  Colo.  319, 17  P. 

875.  913. 

»Id. 


§  744.J  PLEADING.  693 

riage  of  the  parties.  But  if  the  defendant  desires  to  prove 
a  prior  marriage  as  a  defense,  he  must  plead  such  new  mat- 
ter in  avoidance  to  make  such  defense  available.*  The  an- 
swer may  join  all  consistent  defenses.  The  defendant  may 
deny  the  allegations  of  the  bill  and  plead  condonation,^  or 
he  may  join  a  plea  of  connivance  with  a  general  denial  of 
the  alleged  offense.'  The  general  denial  may  be  joined  with 
any  special  matter  of  defense.  The  answer  may  be  amended 
as  in  other  cases.*  And  it  need  not  be  under  oath  unless 
required  by  statute  or  the  rules  of  the  court.'  The  admis- 
sions in  the  answer,  whether  under  oath  or  not,  do  not  re- 
lieve the  plaintiff  from  the  necessity  of  establishing  his  case 
with  full  and  satisfactory  evidence.^ 

§  744.  Cross-bill  for  affirmative  relief.^  Under  the 
ecclesiastical  practice  the  defendant  could  allege  and  prove 
a  cause  for  divorce  as  a  defense  in  recrimination,  and  if  the 
plaintiff  failed  in  his  proofs  the  defendant  could  have  affirm- 
ative relief  upon  establishing  the  plaintiff's  misconduct.'  It 
seems  that  the  defendant  might  obtain  any  relief  which  con- 
cerned the  marriage  relation,  such  as  divorce,  annulment 
of  the  marriage  or  restitution  of  conjugal  rights.  In  a  suit 
for  restitution  of  conjugal  rights  the  defendant  may  have  a 
decree  of  divorce.^    Or  in  a  suit  for  annulment  of  the  mar- 

1  Vincent  v.  Vincent,  17  N.  Y.  411,  the  plaintiff  prayed  for  divorce 
Supp.  497,  16  Daly,  534  on  the  ground  of  cruelty,  and  the 

2  Wood  V.  Wood,  2  Paige,  108.  defendant  set  up  the  adultery  of 
8  Austin  V.  Austin,  10  Conn.  231 ;    the  plaintiff.  No  relief  was  granted 

Rogers  v.  Rogers,  3  Hagg.  Ec.  57.  either  party,  but  the  court  held 

^  Sharon  v.  Sharon,  77  Cal.  102,  19  that    the    defendant   might  have 

P.  230;  Magill's  Ap.,  59  Pa.   430;  afarmative  relief  in  the  same  ac- 

Strong  V.  Strong,  28  How.  Pr.  433.  tion,  not  only  upon  a  cross-demand, 

sSweet  V.  Sweet,  15  How.  Pr.  169;  but  even  upon  his  answer  if  his 

Anable  v.  Anable,  34  How.  Pr.  92.  evidence  showed  him  entitled  to 

But  see  Olney  v.  Olney,  7  Abb.  Pr.  it.    Citing  Dynely  v.  Dynely  (1733), 

350.  and  Mathews  v.  Mathews  (1769). 

«  Hughes  V.  Hughes,  44  Ala.  698,  SDysart  v.  Dysart,  1  Rob.  Eo.  106; 

703;  Schmidt  v.  Schmidt,  29  N.  J.  Anichini  v,  Anichini,  2  Curt.  Ec. 

Eq.  496.  210. 

'In  Best  V.  Best,  1  Addams  Eco. 


694  PLEADING.  [§  744. 

riage  tlie  court  may  grant  the  defendant  a  decree  for  resti- 
tution of  conjugal  rights.'  Adultery  or  cruelty  could  be 
shown  as  a  justification  for  the  separation,  and  therefore  a 
defense  to  the  suit  for  the  restitution  of  conjugal  rights.  If 
the  defendant  could  establish  this  defense,  the  suit  for  resti- 
tution was  dismissed  and  the  defendant  became  entitled  to 
a  decree  of  divorce  as  though  he  was  the  original  plaintiff 
in  a  separate  suit  for  this  purpose.^  This  practice  continued 
until  the  divorce  act  provided  that,  "  in  any  suit  for  the  dis- 
solution of  the  marriage,  .  .  .  the  court  .  .  .  may 
give  to  the  respondent,  on  his  or  her  application,  the  same 
relief  to  which  he  or  she  would  have  been  entitled  in  case 
he  or  she  had  filed  a  petition  seeking  such  relief." ' 

The  ecclesiastical  practice  is  a  part  of  the  common  law 
and  may  be  foUoAved  in  our  country  where  our  practice  is 
inadequate,  unless  the  statute  has  abrogated  such  practice 
by  prescribing  a  different  method  of  obtaining  relief.  The 
power  to  grant  affirmative  relief  is  assumed  by  some  of  the 
courts,  or  at  least  exercised  without  question.^  If  the  stat- 
ute contains  no  provision  upon  the  subject,  and  the  usual 
provision  concerning  counter-claims  and  setToff  is  inappli- 
cable to  suits  for  divorce,  it  is  held  that  affirmative  relief  will 
be  granted  according  to  the  ecclesiastical  practice.' 

In  most  of  the  states  the  proceeding  for  divorce  is  in 
many  respects  a  suit  in  equity,  and  conforms  to  the  practice 
in  equity  cases  where  relief  may  be  granted  on  a  cross-bill 
or  cross-petition.*    It  is  convenient  and  practical  to  adjust 

1  Clowes  V.  Jones,  3  Curt.  Ec.  185.  Coulthurst  v.  Coulthurst,  58  CaL 

2Poynter,  Mar.  &  Div.  241.  239;  Bovo  v.  Bovo,  63  CaL  77;  Lee 

sBlackborne  v.  Blackborne,  1  P.  v.  Lee,  1  Duv.  (Ky.)  196;  Hoff  v. 

.&  D.  563;  Brown  v.  Brown,  3  P.  &  Hoflf,  48  Mich.  281;  Martin  v.  Mar- 

M.  203;  D.  v.  D.,  10  P.  D.  75;  Moore  tin,  33  W.  Va.  695. 

V.  Moore,  13  P.  D.  193;  Drysdale  v.  *  Wuest  v.  Wuest,  17  Nev.  317,  30 

Drydale,  1  P.  &  D.  365.    See,  also,  P.  886.    See,  also,  §  745. 

Bancroft  v.  Bancroft,  3  Swab.  &  T.  «  Osborn  v.  Osborn,  44  N.  J.  Eq. 

597;  Osborne  v.  Osborne,  3  Swab.  257;  Sterl  v.  Sterl,  2  III.  Ap.  233; 

&  T.  327.  Harrison  v.  Hai-rison,  46  N.  J.  Eq. 

^Shafer  v.  Shafer,  10  Neb.  468;  75. 


§^  7"44.]  PLEADING.  695 

all  tlie  marital  rights  of  the  parties  in  one  proceeding  and 
thus  avoid  a  multiplicity  of  suits.  No  useful  purpose  could 
be  subserved  by  compelling  the  defendant  to  prosecute  a 
separate  proceeding  for  divorce  or  annulment  of  marriage 
when  the  issue  ia  the  first  proceeding  will  involve  the  va- 
lidity of  the  marriage  and  the  causes  for  divorce  set  up  in 
recrimination,  and  must  be  proved  by  substantially  the  same 
evidence.  The  cross-bill  should  be  a  complete  bill,  and 
should  state  the  cause  of  action  with  the  same  particularity 
and  conform  to  the  statutory  requirements  as  if  it  were  an 
original  bill.^  It  need  not  be  verified  as  an  original  bill  un- 
less the  statute  so  requires.^  Nor  need  it  contain  the  allega- 
tions showing  the  jurisdiction  of  the  court  and  the  domicile 
of  the  parties.'  For  the  jurisdiction  of  the  court  depends 
upon  the  plaintiff's  bill  and  his  right  to  proceed.  A  non- 
resident defendant  who  appears  and  seeks  affirmative  relief 
is  not  to  be  dismissed  without  a  remedy  because  he  has  not 
the  statutory  residence  required  in  an  original  bill.* 

The  defendant  may  seek  any  kind  of  relief  which  wiU 
affect  the  marital  relation,  regardless  of  the  kind  of  relief 
asked  for  by  the  plaintiff.'  Thus  in  an  action  for  separation 
the  defendant  may  obtain  a  decree  of  dissolution."  Or,  in 
an  action  for  absolute  divorce,  the  defendant  may  set  up  a 
cause  for  separation,'  or  a  cause  for  dissolution,^  or  both.' 
The  wife  may  set  up  the  necessary  facts  and  obtain  alimony 
and  the  custody  of  the  children  without  obtaining  a  divorce.^" 

1  Moores  v.  Moores,  16  N.  J.  Eq.  ^  Van  Benthuysen  v.  Van  Ben- 

375;  Burr  v.  Burr,  2  Edw.  Ch.  (N.  Y.)  thuysen,  17  N.  Y.  St.  Eep.  978;  De 

448;  Clark  v.  Clark,   5  Hun,  340;  Pass  v.  Winter,  2.3  La.  An.  423. 

Chestnut  v.  Chestnut,  88  111.  548.  "Spahn  v.  Spahn,  13  Abb.  N.  C. 

2Musselman    v.    Musselman,    44  169. 

Ind.  106.  8  Mott  V.  Mott,  83  Cal.  413,  33  P. 

^Lesseuer  v.  Lesseuer,  81  Barb.  1140. 

(N.  Y.)  330.     But  see  Coulthurst  u  » Spahn  v.  Spahn,  13  Abb.  N.  C. 

Coulthurst,  58  Cal.  338.  169. 

*  §§  47  and  48,  citing  Sterl  v.  Sterl,  i«  Gilpin  v.  Gilpin,  13  Colo.  504,  31 

3  III  Ap.  233;  Jenness  v.  Jenness,  P.  613;   Allen  v.  Allen,  1  Hemp. 

24  Ind.  355.  (Ark.)  58, 

5  For  form  of  cross-bill  see  §  754. 


696  PLEADING.  [§  744. 

In  an  action  for  divorce  the  defendant  may  deny  that  there 
is  a  valid  marriage  subsisting  between  the  parties,  and  may 
ask  to  have  the  marriage  annulled.'  Or,  in  an  action  to  annul 
the  marriage,  the  defendant  may  allege  the  validity  of  the 
marriage  and  ask  for  divorce,^  or  for  alimony  without  di- 
vorce.^ In  every  suit  for  divorce  the  marriage  must  iirst  be 
proved,  .since  if  there  is  no  marriage  there  has  been  no  marital 
wrong  to  redress  and  no  relation  to  dissolve.  The  validity 
of  the  marriage  is  thus  brought  in  question,  and  if  the  court 
determines  that  there  is  no  marriage  the  defendant  is  en- 
titled to  a  decree  declaring  the  marriage  void.  No  good 
reason  appears  why  this  decree  cannot  be  entered  in  such  a 
proceeding.  The  parties  are  before  the  court  having  juris- 
diction of  the  controversy,  and  the  pleadings  and  evidence 
are  a  sufficient  foundation  for  the  decree,  and  the  suit  is  the 
proper  time  and  place  to  raise  such  an  issue.  Otherwise  the 
decree  of  divorce  will  have  no  validity ;  for  in  another  pro- 
ceeding it  may  be  shown  that  in  fact  no  marriage  ever  ex- 
isted, and  therefore  the  decree  dissolving  such  marriage  is 
void.  The  cross-bill  should  be  answered  and  the  allegations 
of  the  bill  denied.^  But  a  failure  to  deny  the  allegations 
will  not  entitle  the  defendant  to  a  decree  without  proof.' 
The  cross-bill  may  set  up  facts  which  occurred  after  the 
commencement  of  the  action.* 

Ordinarily  the  cross-bill  should  be  fil(?d  with  the  answer, 
but  it  may  be  filed  afterwards  with  leave  of  court.'  Under 
the  peculiar  facts  of  one  case  it  was  held  no  error  for  the 

iSee  D.  V.  D.,  10  P.  D.  75;  Free-  5  Freeman  u  Freeman,  13  S.  W. 

man  v.  Freeman  (Ky.),  13  S.  W.  346;  246;  Sylvis  v.  Sylvis,  11  Colo.  819, 

Wheeler  v.  Wheeler,  76  Wis.  631,  7  P.  913;  Nichols  v.  Nichols,  39  Mo. 

45  N.  W.  531;  Winans  v.  Winans,  Ap.  291. 

134  N.  Y.  140,  36  N:  E.  393.  «  Martin  v.  Martin,  38  W.  Va.  695, 

sWadsworth  v.  Wadsworth,  81  11  S.  E.  13;   Wilson  u  Wilson,  40 

Cal.  182,  22  P.  648.  la.  230;  Armstrong  v.  Armstrong, 

3  Poole  V.  Wilbur,  95  Cal.  339.  37  Ind.  186. 

^LesUeuLeslie,  11  Abb. N. 0.311;  'Johnson  v.  Johnson,  50  Mich. 

Armstrong  v.  Armstrong,  87  Ind.  293. 
186;  Fioke  v.  Fioke,  63  Mo.  335. 


§  745.]  PLEADING.  697 

court  to  permit  defendant  to  file  an  amended  cross-bill  set- 
ting up  affirmative  matter,  and  asking  for  a  divorce  after 
the  greater  portion  of  pla,intifE's  evidence  -was  taken,  where 
an  application  for  leave  to  file  a  cross-bill  was  made  before 
the  commencement  of  the  trial.' 

If  the  allegations  of  both  the  biU  and  cross-bill  are  proved 
no  decree  of  divorce  can  be  entered ;  both  parties  cannot  be 
entitled  to  a  divorce.  The  defendant  has  established  re- 
crimination as  a  defense.^  "Where  a  oross-biU  has  been  filed 
the  decree  should  contain  findings  as  to  both  the  bill  and 
the  cross-bill  and  should  state  upon  which  pleading  the  de- 
cree is  based.'  The  want  of  such  finding  will  not,  however, 
cause  a  reversal  of  the  decree  if  the  evidence  is  insufficient 
to  sustain  a  finding  in  favor  of  the  party  raising  the  objec- 
tion.^ 

§  745.  Statutes  permitting  cross-bills. —  Sometimes  the 
statutes  pro\ade  that  the  defendant  may  have  affirmative  re- 
lief in  an  action  for  divorce.^  Thus,  in  Indiana  it  is  provided 
that,  "  in  addition  to  an  answer,  the  defendant  may  file  a 
cross-petition  for  divorce ;  and  when  filed,  the  court  shall 
decree  a  divorce  to  the  party  legally  entitled  thereto."  This 
authorizes  the  court  to  determine  from  all  the  evidence  in- 
troduced by  both  parties  which  one  is  entitled  to  a  divorce 
and  to  render  a  decree  accordingly.^  It  is  doubtful  whether 
affirmative  relief  can  be  granted  in  an  action  for  divorce 
under  the  usual  provisions  of  the  codes  of  civil  procedure 
regulating  counter-claims.     The  marital  wrong  which  is  set 

1  Van  Voorhis  v.  Van  Voorhis,  94  '  Rgv.  Stat.  111. ;  Owen  v.  Owen, 

Mich.  60,  53  N.  W.  964.  54  Ga.  537;  Jenness  v.  Jenness,  24 

2Gnllett  V.  Gullett,  25  Ind.  517;  Ind.  355;  Hoffman  v.  Hoffman,  43 
Reddington  v.  Reddington,  3  Colo.  Mo.  547;  Fioke  v.  Fioke,  63  Mo.  337; 
Ap.  8,  and  cases  cited.  See,  also,  Carter  v.  Carter,  62  111.  439;  Chest- 
Recrimination,  §§425-443.  nut  v.  Chestnut,  88  111.  548;  Arm- 

3 Haley  v.   Haley,  44  Ark.   439;  strong  v.  Armstrong,  37  Ind.  186; 

Cassidy    v.  Cassidy,  63    Cal.   352;  Rev.  Code  Iowa  (1888),  §  3416. 

Gullett  V.  Gullett,  25  Ind.  517;  Pol-  "  Glasscock  v.  Glasscock,  94  Ind. 

lock  V.  Pollock.  71  N.  Y.  137.  163.    See,  also,  Stoner  v.  Stoner,  9 

i  White  V.  White,  83  Cal.  437.  Ind.  505. 


698  PLEADING.  [f  T45. 

forth  as  a  cause  for  divorce  resembles  a  tort  more  than  it 
does  a  "  contract "  or  "  transaction  "  referred  to  in  the  code. 
Under  the  i^ew  York  Code  the  counter-claim  "  must  arise 
out  of  one  of  the  following  causes  of  action :  (1)  A  cause  of 
action  arising  out  of  the  contract  or  transaction  set  forth  in 
the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action.  (2)  In  an  action 
arising  on  contract,  any  other  cause  of  action  arising  also 
on  contract,  and  existing  at  the  commencement  of  the  ac- 
tion." It  was  held  that  plaintiff's  adultery  cannot  be  set  up 
as  a  counter-claim  against  the  defendant's  adultery.  The 
adultery  of  the  plaintiff  which  is  set  up  as  a  counter-claim 
does  not  arise  out  of  the  "  contract  or  transaction  set  forth 
in  the  complaint,"  for  that  transaction  is  the  alleged  adul- 
tery of  the  defendant.  Nor  is  the  offense  "  connected  with 
the  subject  of  the  action,"  for  that  is  the  wrongful  act  of  the 
defendant.'  It  would  seem  that  this  is  a  correct  interpreta- 
tion of  the  terms  of  the  code.  The  term  cownter-daim  is 
not  applicable  to  a  cause  for  divorce,  which  is  neither  a 
tort  or  a  breach  of  contract,  but  is  cause  of  action  unlike  all 
other  causes.  The  better  view  is  that  the'  terms  eounter- 
claim,  contract  and  transaction  have  no  reference  to  mar- 
riage or  divorce,  and  do  not  autho,rize  affirmative  relief  in 
divorce  cases.^  The  courts  would  then  be  free  to  follow  the 
ecclesiastical  practice.'''  There  is,  however,  some  slight  ground 
for  holding  one  cause  for  divorce  a  cross-demand  "  relating 

'H.  V.  H.,  40  Barb.  9;  Spahn  v.  fin  v.  Griffin,  23  How.  Pr.  189;  Doe 

Spahn,  12  Abb.  N.  C.  169;  Henry  u  v.  Eoe,  33  Hun,  19;  McNamara  v. 

Henry,  25  How.  Pr.  5;  Mcintosh  McNamara,  3  Hilt.  (N.  Y.)  548,  9 

V.  Mcintosh,  12  How.  Pr.  289;  Ter-  Abb.  Pr.  18;  Campbell  v.  Campbell, 

hune  V.  Terhune,  40  How.  Pr.  258.  12  Hun,  636;   Black  v.  Bleck,  37 

But  affirmative  relief  is  now  per-  Hun,  296;    Linden  v.  Linden,  36 

mitted  under  certain  amendments  Barb.  61. 

of  the  New  York  Code.    See  Van        2  De  Haley  v.  De  Haley,  74  Cal. 

Benthuysen  v.  Van  Benthysen,  17  489,  16  P.  248.    See  contra,  Wilson 

N.  Y.  St.  Rep.  978,  15  Civil  Pro.  234.  v.  Wilson,  40  la.  230. 
See,  also,  Waltermire  v.  Walter-        3  Wuest  v.  Wuest,  17  Nev.  317, 30 

mire,  110  N.  Y.  183,17  N.  E.  739;  P.  886. 
Finn  v.  Finn,  62  How.  Pr.  83;  Grif- 


§  745.]  PLEADING.  699 

to  or  depending  upon  the  contract  or  transaction  upon 
which,  the  action  is  brought." '  In  Oregon  it  is  held  that  a 
cause  for  divorce  is  suificiently  "  connected  with  the  subject 
of  the  suit "  to  constitute  a  eounter-claini  within  the  defini- 
tion of  the  code.^ 

The  plaintiff  may  at  any  time  obtain  a  dismissal  of  his 
bill,  and  if  the  defendant  has  answered  by  general  denial  or 
sets  up  other  defenses  and  asks  that  the  suit  be  dismissed, 
the  dismissal  of  the  original  bill  will,  as  a  general  rule,  carry 
with  it  the  entire  proceeding.'  Bat  if  the  defendant  has 
filed  a  cross-bill  setting  up  a  cause  for  divorce  or  a  ground 
for  the  annulment  of  marriage,  the  dismissal  of  the  original 
bill  will  not  deprive  the  defendant  of  the  right  to  prosecute 
the  cross-suit  as  an  independent  action.^  The  defendant 
may  proceed  with  the  case  and  obtain  a  decree  of  divorce  if 
the  evidence  is  sufficient.^  Or  may  obtain  a  decree  of  ali- 
mony where  such  relief  is  granted  without  a  decree  of  di- 
vorce.* There  is  no  good  reason  why  the  whole  action  can 
be  dismissed  by  the  act  of  one  party,  and  the  defendant 
forced  to  the  delay  and  expense  of  another  proceeding.  If 
the  defendant  is  in  fact  the  injured  party  and  has  a  cause 

1  Wads  worth  v.  "Wadsworth,  81  M.  563.    See  also  Dawson  v.  Amey, 

Cal.  182,  33  P.  648.    See,  also,  Mott  13  Stew.  Eq.  496;  Daniel's  Ch.  PI. 

V.  Mott,  83  Cal.   413,  23  P.   1140;  &  Pr.  1553.    In  Indiana  the  dismis- 

Blakely  v.  Blakely,  89  Cal.  334,  36  sal  at  one  time  deprived  the  def  end- 

P.  1072;  Kirsoh  v.  Kirsch,  83  Cal.  ant  of  affirmative  relief.    Stoneru 

663,  33  P.  1083.  Stoner,  9  Ind.  505;  Jenness  v.  Jen- 

2Dodd  V.  Dodd,  14  Or.  338,  13  P.  ness,  24  Ind.  355;  Barr  v.  Barr,  31 

509.  Ind.  240;  Armstrong  u  Armstrong, 

3  Donahue    v.    Mariposa  Mining  27  Ind.  186.    But  the  statute  now 

Co.,   1  Pao.  L.  J.  319;   Cont.  Life  provides  that  after  such  dismissal 

Ins.    Co.    v.   Webb,    54  Ala.    688;  the  defendant  may  proceed  to  trial 

Thomason  v.  Neely,  50  Miss.  310.  without  further  notice  to  the  ad- 

*  Butler  V.   Butler,  38  N.  J.  Eq.  verse  party.    Musselman  v.  Mussel- 


636;  Pioke  v.  Ficke,  62  "Mo.  335 
CampbeU  v.  Campbell,  12  Hun,  636 
Dewees  v.  Dewees,  55  Miss.  315 
Schira  v.  Sohira,   1  P.  &  M.   466 


man,  44  Ind.  108. 

5  Mott  V.  Mott,  83  Cal.  413,  22  P. 
1140. 

6  Dewees  v.  Dewees,  55  Miss.  315; 


Blackborne  v.  Blackborne,  1  P.  &    Butler  v.  Butler,  38  N.  J.  Eq.  626. 


700  PLEADING.  [§  746. 

for  divorce,  no  interest  of  the  state  requires  that  a  new  ac- 
tion must  be  commenced  to  determine  his  rights. 

§  746.  Application  for  temporary  alimony. —  The  appli- 
cation for  temporary  alimony  should  be  in  the  nature  of  a 
motion,  supported  by  the  petition  or  answer  and  by  affi- 
davits showing  a  probable  cause  for  divorce  or  a  defense, 
and  also  that  a  de  facto  marriage  relation  exists  between  the 
parties;  that  the  husband  has  property  and  ability  to  paj^ 
alimony,  and  that  the  wife  is  without  available  means  to 
prosecute  the  suit.  In  England,  and  in  some  of  the  United 
States,  the  application  is  in  the  nature  of  a  petition  called 
an  "  allegation  of  faculties,"  or  a  "  petition  for  alimony."  ^ 
No  notice  of  this  application  is  necessary  in  the  absence  of 
statutes  requiring  it.^  But  where  the  application  is  by  mo- 
tion, supported  by  affidavit,  the  same  notice  wiU  be  required 
according  to  the  practice  of  the  court  on  ordinary  motions.' 
The  application  is  not  ordinarily  made  by  the  plaintiff  until 
an  issue  is  raised  by  demurrer  or  answer.*    lS.o  application 

iln  New  York  the  application  petition,  the  defendant  must  be 

for   temporary   alimony   and    at-  presumed  to  be   in    court  at  all 

torney's  fees  may  be  made  by  mo-  times  after  the  service  of  process 

tion.    A  proceeding  by  petition  is  on  him  for  the  period  specified  in 

not  necessary.    Kirch  v.  Kirch,  45  the   decree."    Loohnane   v.  Loch- 

St.  Rep.  287,  18  N.  Y.  Supp.  447.  nane,  78  Ky.  467.   Where,  on  an  ap- 

The  application  is  by  motion  in  plication  for  alimony  pendente,  lite, 

the  following  states:  Vandei-grift  the  court  makes  an  order  requir- 

V.  Vandergrift,   30  N.   J.   Eq.   76;  ing  the  husband  to    appear  and 

Letowioh  v.  Letowioh,  19  Kan.  451 ;  show  cause  why  the  same  should 

Beeves   v.  Reeves,  83  N.   C.   348;  not  be  granted,  no  notice  of  said 

Swearingen  v.  Swearingen,  19  Ga.  application  is  required  previous  to 

265;  Becker  v.  Becker,  15  111.  Ap.  the  entry  of  said  order.    Mudd  v. 

247;  Simpson  v,  Simpson  (la.),  59  Mudd,  98  Cal.  320.    The  notice  re- 

N.  W.  33;  Finn  v.  Finn,  63  la.  483.  quired  by  statute  need  not  specify 

2  Becker  v.  Becker,   15  111.  Ap. .  the  time  and  place  of  the  hearing. 

347.     In  Kentucky  no   notice   is  Zimmerman    v.   Zimmerman,  113 

required  where  the  petition  for  di-  N.  C.  433'. 

vorce  contains  a  prayer  for  tempo-  3  But  see,  contra,  Curtis  v.  Curtis, 

rary  alimony.     "  For  all  purposes  54  Mo.  351. 

sought  to  be  accomplished  by  the  *See§  854 
allegations  and  the  prayer  of  the 


§  747.]  PLEADING.  701 

should  be  made  by  defendant  until  an  answer  or  demurrer 
is  filed,  for  it  would  seem  that  a  lona  fide  defense  should  be 
interposed,  otherwise  there  is  no  adequate  showing  of  neces- 
sity for  a  defense  or  of  the  merits  of  the  case.'  Generally 
the  application  for  temporary  alimony  should  be  made  be- 
fore the  expenses  are  incurred,  as  the  alimony  is  properly 
an  allowance  for  future  expenses.  In  some  instances  the 
courts  have  declined  to  make  any  allowance  for  expenses 
already  incurred,  because  it  is  not  "  necessary  to  enable  the 
wife  to  carry  on  the  action."  ^  It  is  thought  that  the  lan- 
guage of  the  statute  will  not  permit  the  court  to  pay  ex- 
penses incurred  by  the  wife  in  her  defense  unless  there  is  a 
showing  that  the  payment  of  these  expenses  is  necessary  to 
a  further  prosecution  of  the  suit.^ 

This  interpretation  is  too  narrow,  as  the  statute  was  evi- 
dently intended  to  confer  upon  the  court  the  ordinary  power 
of  a  court  of  equity,  and  not  to  prevent  the  court  from 
making  such  allowances  as  were  incurred  in  good  faith  and 
upon  the  implied  power  of  the  court  to  make  such  orders  at 
discretion  at  any  stage  of  the  case.  Such  interpretation  is 
not  followed  so  far  as  it  relates  to  costs  and  attorney's  fees.'' 

§  747.  Application  for  permanent  alimony.— The  appli- 
cation for  permanent  alimony  should  be  made  a  part  of  the 
petition  for  divorce.'  It  is  a  part  of  the  relief  prayed  for, 
and  is  also  a  part  of  the  remedy  provided  in  the  decree.     In 

iBut  a  showing  may  be  made  Loveren,   100    Cal.   493,   35  P.  87; 

by  plaintiff  in  some  states  before  Mudd  v.  Mudd,  98  Cal.  332. 

the  return  day  of  the  writ.    See  ^  Bohnert  v.  Bohnert,  91  Cal.  428, 

Russell  V.  Eussell,  69  Me.  336.    In  27  P.  733;  Atherton  v.  Atherton,  83 

Deane  v.  Deane,  28  L.  J.  Mat.  Cas.  Hun,  179. 

23,  it  was  held  that  no  alimony  *  See  Attorney's  fees,  §§  875-88?. 

would  be  granted  where  there  was  sjhis  is  the  practice  in  the  code 

no  appearance  by  the  husband,  as  states.    In  New  York  the  applioa- 

the  case  can  then  be  disposed  of  tion    for    permanent    alimony    is 

without  a  contest.  usually  "  incorporated  in  the  com- 

2  McCarthy  v.  McCarthy,  137  N.  plaint  with  appropriate  averments, 

Y.  500;  Beadleston  v.  Beadlestfin,  and  the  evidence  relating  to  it  on 

103  N.  Y.  402;  Emerson  v.  Emer-  both  sides,  taken  upon  the  trial  of 

son,  26  N.  Y.  Supp.  393;  Loveren  v.  the  principal  issue,  where  it  is  had 


702  PLEADING.  [§  748. 

all  cases  where  the  petition  asks  for  injunction  to  restrain 
the  husband  from  transferring  his  property  to  defeat  the 
decree  for  alimony;  or  where  attachment,  restoration  or 
division  of  property  is  sought,  the  petition  or  cross-bill  would 
be  defective,  unless  the  petition  or  cross-bill  stated  sufficient 
facts  to  entitle  the  party  to  a  decree  for  alimony.'  As  the  prac- 
tice in  suits  for  divorce  generally  conforms  to  the  chancery 
practice,  it  is  necessary  in  some  states  to  make  the  applica- 
tion a  part  of  the  petition  for  divorce,  especially  where  third 
persons  are  made  parties,  and  relief  is  prayed  against  them.^ 

§  74:8.  Decree. — ^  A  decree  of  divorce  should  be  similar  in 
form  to  a  decree  in  equity.  It  should  be  a  complete  decree 
and  not  an  order  directing  that  a  decree  be  entered-.'  It 
should  disclose  the  date  when  it  was  rendered.*  A  decree 
does  not  relate  back  unless  so  provided. 

Every  decree  of  divorce  should  recite  the  facts  necessary 
to  show  the  jurisdiction  of  the  court.  If  this  is  done  the 
jurisdiction  will  be  presumed;  unless  the  want  of  it  affirm- 
before  the  court  or  a  referee;  but  sources  from  whence  it  was  de- 
if  the  defendant  insists  upon  his  rived,  yet  it  seems  to  be  the  usual 
right  to  a  jury  trial,  there  would  practice  in  this  country  —  though 
be  a  manifest  impropriety  in  tak-  not  in  England  —  to  do  so.  In 
ing  in  their  presence  the  testi-  England,  alimony  is  made  the  sub- 
mony  relating  to  the  question  of  ject  of  a  special  application  or  peti- 
alimony.  The  practice  to  be  pur-  tion,  separate  and  distinct  from 
sued  in  each  case  must  be  left  in  a  the  libel  for  divorce.  But  we  think 
great  measure  to  the  sound  dis-  that  ours  is  the  better  practice,  in 
cretion  of  the  trial  court."  Galusha  that  it  accords  with  the  analogies 
V.  Galusha,  138  N.  Y.  372.  of  the  equity  procedure,  by  includ- 

1  When  permanent  alimony  ing  in  the  bill  or  complaint  all  the 
granted,  see  Permanent  alimony,  allegations  of  fact  upon  which  it 
§§  900-917.  niay  be  necessary  for  the  court  to 

2  An  objection  to  including  such  adjudicate  for  the  purpose  of  a 
application  in  a  suit  for  divorce  complete  determination  of  all 
was  overruled  by  the  Wisconsin  matters  involved  in  the  action." 
court.  It  was  said:  "  Although  it  Damon  v.  Damon,  28  Wis.  510.  See 
is  perhaps  not  absolutely  neces-  form  of  petition  in  this  case  in 
sary  in  an  action  for  divorce  and    §  758. 

alimony  to  set  forth  the  amount        '  In  re  Cook,  77  CaL  220. 

of  the  husband's  property,  the  par-       *  Cook  v.  Cook,  144  Mass.  163. 

ticulars  of  its  situation,  and  the 


§  748.]  PLEADING.  703 

atively  appears.*  The  residence  of  the  plaintiff  in  the  state 
for  the  required  time  should  be  stated.  The  service  of  pro- 
cess should  be  stated  unless  the  record  shows  that  the  de- 
fendant appeared.  If  the  divorce  is  granted  upon  default, 
the  manner  of  service  and  its  due  execution  should  be  stated. 
It  is  sulEcient  to  state  that  the  summons  was  served  accord- 
ing to  law,  or  that  notice  by  publication  was  duly  given.  If 
the  manner  of  service  is  stated  in  detail,  some  error  or  omis- 
sion may  make  the  record  disclose  a  lack  of  jurisdiction 
when  in  fact  the  court  had  it.  Or  if  there  is  a  defect  in  the 
notice  the  detailed  statement  may  disclose  such  defect.^  The 
marriage  may  be  properly  stated  in  the  decree,  but  an  omis- 
sion to  iind  that  the  parties  were  married  will  not  be  fatal ; 
as  such  fact  is  disclosed  in  the  record  of  the  case.  The  kind 
of  divorce  granted,  whether  a  decree  of  separation  or  an  ab- 
solute decree,  should  be  stated,  otherwise  the  word  "divorce  " 
without  qualification  means  an  absolute  divorce  from  the 
bonds  of  matrimony.'  The  decree  should  be  based  upon  the 
pleadings  and  not  upon  issues  erroneously  raised  at  the  trial.'' 
Thus  where  the  only  charge  of  adultery  was  with  a  certain 
person,  a  decree  finding  defendant  guilty  of  adultery  with  a 
person  whose  name  is  unknown  is  erroneous  and  will  be  re- 
versed.' The  decree  should  disclose  the  cause  or  causes  for 
which  it  was  granted .*  The  name  of  the  party  against  whom 
the  decree  was  granted   should  be   stated  in  the  decree. 

IS.  V.  Armington,  35  Minn.  29;  decree  finds  defendant  guilty  of 

Brannon  V.  P.,  1  IlL  Ap.  496.  "wilful    neglect,''  and   the    com- 

2  As  in  Tucker  v.  People,  123  111.  plaint  does  not  state  facts  consti- 

583,  where  the  decree  disclosed  that  tuting  this  cause  for  .divorce,  a 

the  court  had  no  jurisdiction;  as  decree  will  be  entered  in  favor  of 

the  notice  was  not  published  the  defendant.    Devoe  v.  Devoe,  51  Cal. 

required  length  of  time.  543. 

SMiUer  v.  Miller,  33  Cal.  353.  SBokel  v.  Bokel,  3  Edw.  Ch.  876. 

4  Haltenhoff  v.  HaltenhofE,  35  IlL  «  Young  v.  Young  (Tex.),  33  S.  W. 
Ap.  236;  Weber  v.  Weber,  16  Or.  83.  A  failure  to.  state  the  cause 
163.  In  such  case  if  the  complaint  for  divorce  does  not  render  the  de- 
does  not  state  a  cause  for  divorce  cree  void.  Chemung  Canal  Bank 
it  will  be  dismissed  on  appeal,  v.  Judson,  8  N.  Y.  254;  Wells  v. 
Ward  V,  Ward,  20  Wis.  266.    If  a  Wells  (N.  Y.),  10  St.  Rep.  248. 


704 


PLEADING. 


[§  748. 


"Where  this, is  omitted,  the  decree  will  be  presumed  to  be  in 
favor  of  the  wife  where  she  obtains  alimony  and  the  custody 
of  the  children.'  This  is  especially  true  where  defendant 
has  filed  a  cross-bill  and  contested  the  case.^ 

The  failure  to  enter  findings  in  regard  to  both  petition, 
and  cross-petition  is  not  always  a  reversible  error.'  The 
form  of  the  finding  may  render  it  unnecessary  to  make  sepa- 
rate findings  as  to  both  pleadings.* 


1  Eskholm  v.  Eau,  34  La.  An.  546. 
Form  of  decrees  of  divorce,  see 

§§  763-765. 

For  effect  of  decrees  of  divorce, 
see  §§  1020-1034. 

Nature  and  effect  of  divorce 
from  bed  and  board,  §  1033. 

Form  of  decree  of  separation, 
§764. 

Effect  of  decree  nisi,  §  1031. 

Decrees  of  divorce,  in  general, 
§  1030. 

Divorce  from  the  bonds  of  mat- 
rimony, §  1034. 

Effect  of  absolute  divorce  on 
property  rights,  §§  1034-1084. 

Effect  of  decree  annulling  mar- 
riage, §  1038. 

Forms  of  nullity  decree,  §  765. 

Order  for  temporary  alimony, 
§  860. 

Form  of  order,  §  761. 

Order  for  permanent  alimony, 
§§  930-944. 

Form  of  order,  §  766. 

Order  for  custody  of  children, 
§984 

Form  of  order,  §  767. 

Order  for  attorneys'  fees,  §  880. 

Vacating  and  annulling  decree 
for  fraud,  §§  1050-1057. 

When  default  set  aside,  §  775. 

2  In  Gullett  V.  Gullett,  35  Ind, 
517,  the  defendant  filed  a  cross-bill, 
and  the  court,  after  hearing  the 


evidence  offered  by  both  parties, 
found  that  a  divorce  ought  to  be 
granted,  "  not  upon  the  application 
of  either  party,  but  upon  the  whole 
case."  Held  erroneous  and  suit 
dismissed. 

In  Cassiday  v.  Cassiday,  63  Cal. 
353,  the  court  made  no  finding 
upon  the  answer  and  cross-petition 
of  tlie  defendant,  but  found  that 
"all  the  material  allegations  of 
facts  set  forth  in  plaintiff's  com- 
plaint are  sustained  and  proven  by 
the  evidence."  It  was  held  that 
such  finding  was  insufficient,  be- 
cause not  responding  tb  all  the 
material  issues  made  by  the  plead- 
ings. 

3  Haley  v.  Haley,  44  Ark.  439. 

4  In  Pollock  V.  Pollock,  71  N.  Y. 
187,  the  referee  reported  that  one 
party  was  guilty  and  the  other  not 
guilty.  The  finding  of  the  court 
that  plaintiff  was  guilty  "as 
charged  in  the  answer  "  was  held 
a  sufficient  compliance  with  the 
provisions  of  the  code  requiring 
the  decision  of  the  court  to  con- 
tain a  statement  of  the  facts 
found,  and  the  conclusions  of 
law,  separately.  The  decree  for 
alimony  need  not  contain  find- 
ings justifying  the  court  in  com- 
pelling the  husband  to  furnish 
the   wife   separate   maintenance. 


>§  748.] 


PLEADING. 


705 


A  decree  of  divorce  may  reserve  questions  relating  to  ali- 
Tttony  and  the  custody  and  support  of  the  children  for  future 
-consideration.^  Or  it  may  find  the  wife  entitled  to  a  divorce 
and  alimony,  and  refer  the  matter  to  a  master  in  chancery 
for  further  evidence.^ 

As  the  decree  of  divorce  is  final  as  to  aU  property  rights 
which  are  or  might  have  been  litigated  in  the  divorce  suit, 
^he  decree  should  contain  specific  and  complete  provisions 
relating  to  the  property  rights  of  both  parties.  The  rights 
of  curtesy  and  dower  should  be  expressly  reserved  or  extin- 
guished- by  the  decree.'  The  order  for  the  custody  and 
support  of  the  children,  the  order  for  alimony  or  a  division 
or  restoration  of  property,  and  the  order  for  attorneys' 
fees,  are  usually  incorporated  in  the  final  decree  of  divorce.'' 
The  decree  may  be  amended  during  term  as  other  judgments 
and  decrees.* 


Dooley  v.  Dooley,  19  IlL  Ap.  391. 
But  where  no  answer  is  filed,  find- 
ings are  not  required.  Eeading  v. 
Reading,  96  CaL  4,  80  P.  803. 

1  Ambrose, -Ba;  parte,  72  CaL  398; 
Cooledge  v.  Cooledge,  1  Barb.  Ch. 
77. 

2  See  form  of  order  in  Knowlton 
V.  Knowlton,  40  HI.  Ap.  588. 

8  If  left  in  doubt  as  to  dower  the 
■decree  may  be  amended.  Leeman 
V.  Leeman,  Stephen's  Digest  (Ont.), 
495. 

*But  it  is  held  that  the  order 
for  attorneys'  fees  is  not  a  proper 
portion  of  the  final  decree  of  di- 

45 


vorce.  Williams  v.  Williams,  6  N. 
Y.  Supp.  645. 

5E.  u  E.,  20  Wis.  331;  Eeading  v. 
Eeading,  96  Cal.  4,  30  P.  808;  Mos- 
ter  V.  Moster,  58  Mo.  326;  Tucker 
V.  Tucker,  132  lU.  558;  Carley  v. 
Carley,7  Gray,  545;  Oadesv.  Oades, 
6  Neb.  304. 

When  default  set  aside,  §  775. 

Modification  of  decrees  of  ali- 
mony, §  934. 

Modification  of  order  for  custody 
and  maintenance  of  children,  §  985. 

For  procedure  in  vacating  de- 
cree for  fraud,  see  §  1057. 

Application  or  petition  to  annul 
decree  obtained  by  fraud,  §  1057. 


FORMS  OF  PLEADINGS  AND  DECREES. 


§  750.  In  general. 

751.  Petitions  for  divorce. 

753.  Petition  for  divorce  on  ac- 
count of  cruelty. 

753.  Answers  in  suits  for  divorce. 

754  Answer  and  cross-petition 
for  divorce. 

755.  Petition  for  annulment  of 

marriage. 

756.  Petition  to  annul  marriage 

contracted  in  good  faith 
and  to  have  children  de- 
clared legitimate. 

757.  Petition  for  maintenance  of 

child  after  divorce. 

758.  Petition  to  set  aside  a  fraud- 

ulent conveyance. 

759.  Petition  for  alimony  with- 

out divorce. 


§  760.  Applications  for  alimony. 

761.  Order    for    temporary   ali- 

mony. 

762.  Decrees  of  absolute  divorce- 

763.  Default  upon  constructive 

service. 
764  Decree  of  separation  or  lim- 
ited divorce. 

765.  Decree  of  niillity. 

766.  Decree  for  permanent  ali- 

mony. 

767.  Decree  awarding  alimony^ 

custody  of  children  and 
use  of  homestead. 

768.  Decree  restraining  sale  of 

property  and  restoring  the- 
wife's  property  and  award-  ' 
ing  use  of  homestead. 


§  750.  In  general. —  There  is  no  uniform  practice  relat- 
ing to  the  divorce  suit,  as  the  suit  is  in  some  states  a  proceed- 
ing in  equity  and  in  other  states  a  proceeding  under  the  cod© 
of  civil  procedure.  The  following  forms  of  pleadings  and 
decrees  are  selected  with  reference  to  the  states  having  codes 
of  civil  procedure ;  but  it  is  believed  that,  with  some  varia- 
tions required  by  local  practice,  the  forms  will  be  sufficient 
in  either  form  of  procedure.  The  forms  given  are  mere  out- 
lines, suggesting  the  nature  of  the  pleadings  required,  and  are' 
to  be  varied  according  to  the  nature  of  the  case.  Some  of 
the  forms  are  taken  from  the  reports,  and,  although  held  suf- 
ficient by  the  courts,  are  not  always  free  from  objection,  but 
will  be  useful  in  suggesting  to  the  pleader  the  necessary  f ormi 
which  his  case  may  require. 


§  751.J  FOKMS    OF    PLEADINGS   AND   DECKEES.  TQ7 

§  751,  Petition  for  divorce — -The  following  is  a  commom 
form  of  the  petition  for  divorce : 

1.  The  plaintiff, ,  alleges  that  she  is  now,  and 

has  been  for  more  than  [statutory  period  of  residence\  imme- 
diately preceding  the  filing  of  this  petition,  a  resident  of 

county,  in  the  state  of ;  and  that  said  residence 

has  been  in  good  faith  and  not  for  the  purpose  of  obtaining 
a  decree  of  divorce.^ 

a.  That  on  the  day  of  ,  in  the  city  of ,  in 

county, ,  the  plaintiff,  whose  maiden  name 


M'as ,  married ,  the  defendant,  and  said 

parties  lived  together  as  man  and  wife  until  the day  of 

,  18 — J^    That  during  all  of  the  time  said  parties  lived 

together,  the  plaintiff  conducted  herself  as  a  faithful,  chaste 
and  obedient  wife.' 

3.  That  on  the  • day  of [or  at  various  times  dur- 
ing the  months  of and  — ■ — ^  the  defendant  had  sexual 

intercourse  with  one [or  if  the  name  is  unknown 

the  allegation  may  Ije,  "  with  a  woman  whose  name  is  un- 
known to  the  plaintiff  "  ]  at  the  house  of ,  at  No.. 

,  — ■ — ■  street,  in  the  city  of .  [The  following  alle- 
gation is  sometimes  required :  "  "Without  the  connivance  or- 
collusion  of  the  plaintifi',  who  has  not  condoned  or  forgiven 
such  offense."  ]  * 

4.  That  the  following  children  are  the  issue  of  said  mar- 
riage of  plaintiff  and  defendant  [here  state  names  and  ages 
of  children'],  who  are  now  living  with  plaintiff  [or  other  per- 
son, as  the  case  may  he']. 

5.  That  defendant  is  leading  an  immoral  Ufe,  has  no  per- 
"manent  residence,  is  violent  and  cruel  in  his  treatment  of 

children  [state  other  facts  showing  unfitness],  and  is  wholly 
unfit  to  be  intrusted  with  the  care  and  education  of  children. 

6.  That  plaintiff  has  personal  property  consisting  of  [here 

describe  it],  worth  about dollars,  and  also  the  following 

described  real  estate, ,  worth  about  dollars,  but 

mortgaged  for  the  sum  of  dollars,  and  none  of  said 

property  produces  an  income  or  can  be  sold  or  converted  to 

iSee  Allegation  of  jurisdiction,  *Wheii    pleading   is    indefinite, 

§  731.  §§  182,  183. 

2  See  How  marriage  alleged,  §733.  When  name  of  paramour  is  not 

3  See  Plaintiff  need  not  antici-  required,  §  181. 

pate  defenses.  Variance  of  time  and  place,  §§184,. 

185. 


708  FOEMS    OF   PLEADINGS   AND   DECI4EES.  [§  Y51. 

plaintiff's  use.  [Or  allege  that  "  plaintiff  has  no  property 
in  her  own  right,  and  no  means  with  which  to  prosecute  this 
suit  and  maintain  herself  and  children  (except ), .] 

7.  That  defendant  has  personal  property  consisting  of 

[here  describe  if],  worth  about doUars,  and  is  the  owner 

in  fee  of  the  following  described  real  estate  [desoriied  as  m 
a  conveyance'] ;  and  defendant  also  owns  the  property  now 
occupied  by  plaintiff  and  said  children  as  a  homestead,  and 

described  as  follows:  [description'],  and  worth  about  

dollars,  and  mortgaged  for  the  sum  of dollars.     That 

plaintiff  is  without  means  to  support  said  children  and  to 
prosecute  this  action,  and  said  defendant  has  neglected  and 
refused  to  support  the  plaintiff  and  said  children.^ 

Therefore  plaintiff  prays  that  she  may  be  divorced  from 
said  defendant,  and  that  said  marriage  be  dissolved;  that 
she  may  be  given  the  custody  of  said  children ;  that  she  may 
be  allowed  to  remain  in  said  homestead ;  that  the  said  real 
estate  be  divided  between  the  parties,  and  that  defendant  be 
decreed  to  pay  a  reasonable  sum  of  alimony,  and  for  such 
other  relief  as  may  be  just  and  equitable.^ 

A.  B.,  by ,  her  Attorney. 

[Add  the  required  verification^ ' 

Other  causes  for  divorce  may  be  alleged  as  follows: 

Cruelty. 

That  the  defendant  has  been  guilty  of  extreme  cruelty  [use 

statutory  term]  towards  the  plaintiff,  in  this,  that  on  the 

day  of ,  and  at  numerous  times  thereafter  untH  the 

day  of ,  defendant  accused  plaintiff  of  having  committed 

adultery  with  one .  That  said  accusation  was  re- 
peated before  plaintiff's  friends  and  relatives,  and  has  caused 
plaintiff  severe  mental  stiff ering,  thereby  rendering  plaintiff's 
condition  intolerable  and  impairing  her  health.     Plaintiff 

denies  that  she  has  committed  adultery  with ,  or 

with  any  other  person,  and  alleges  that  she  has  conducted 
herself  as  a  chaste  and  discreet  wife,  and  that  said  accusa- 
tion is  utterly  false  and  unfounded.* 

'  See  Causes  for  ancillary  relief,  *  For  another  form  of  allegation 

§  736.  on  the  ground  of  cruelty,  see  §  752. 

2  Prayer  for  divorce,  see  §  737.  For    sufficiency  of   allegation   of 

'  See  Verification,  §  788.  cruelty,  see  §§  332-837. 


§  T51.]  FOEMS    OF   PLEADINGS    AND   DECEEBS.  TOS 

Desertion. 

That  on.  the day  of defendant  deserted  the 

plaintiff  without  just  cause  and  has  ever  since  been  wilfully 
absent  from  plaintiff.^ 

Habitual  drunkenness. 

That  after  said  marriage  defendant  commenced  the  excess- 
ive use  of  intoxicating  liquors  and  has  for  more  than  \_stat- 
utoi'y  period']  been  guilty  of  habitual  drunkenness.^ 

Imprisonment. 

That  on  the day  of and  at  the term  of  the 

court  of county, ,  the  defendant,  was  duly 


convicted  of  the  crime  of ,  and  was  thereupon  sentenced 

by  said  court  to  confinement  in  the  penitentiary  of  the  state 

of for  the  period  of years..    That  defendant  is  now 

confined  in  said  penitentiary  in  pursuance  of  said  sentence, 
which  now  remains  in  full  force  and  effect,  and  that  no  pro- 
ceedings to  reverse  said  sentence  are  now  pending.' 

Gross  neglect  of  duty. 

That  the  defendant  for  more  than years  last  past  has 

been  guilty  of  gross  neglect  of  duty  towards  plaintiff,  in 
that  by  reason  or  his  idleness  and  dissipation  he  has  wilfully 
failed  and  neglected  to  provide  this  plaintiff  and  their  said 
children  with  food  and  clothing  and  the  common  necessaries 
of  life,  so  that  she  has  been  compelled  to  live  by  her  own 
exertions  and  labor,  and  on  the  assistance  and  charity  ren- 
dered by  her  relatives,  although  he  was  fully  able  to  prop- 
erly support  her  and  her  said  children.* 

Neglect  to  provide  or  failure  to  support. 

That  the  defendant  has  for  more  than years  last  past 

been  guilty  of  gross  neglect  of  duty  toward  plaintiff,  in  that 
he  has  separated  from  plaintiff  without  the  fault  of  plaint- 
iff, and  has  during  said  time  wilfully  failed  and  neglected  to 
provide  plaintiff  with  the  common  necessaries  of  life  [or  to 
contribute  arvything  towards  the  support  of  plaintiff  \ 

1  Or  the  facts  causing  separation  '  Effect  of  proceedings  in  error, 

may  be  alleged.    See  §g  111-114.  see  §  361. 

SFor  sufficiency  of  this  allega-  *For    facts    constituting    gross 

tion,   see   Habitual    drunkenness,  neglect  of  duty,  see  §  383. 
§859. 


iiO  FOEMS    OF   PLEADINGS    AND   DECREES.  [§  751. 

That  daring  said  time  defendant  was  in  receipt  of  ■ 


dollars  per  month  income  from  his  business  [or,  was  in  con- 
stant receipt  of  wages   sufficient  for  their  joint  support, 

to  wit,  about  dollars  per  month],  [or,  that  plaintiff, 

being  in  good  health  and  having  strength  and  ability  to 
labor,  and  being  offered  employment;,  ^as  refused  to  labor, 
and  has  failed  to  provide  plaintiff  with  the  common  neces- 
saries of  life,  because  of  idleness  and  dissipation].^ 

The  following  forms  have  been  prepared  by  the  judges  of 
the  English  courts  according  to  the  provisions  of  the  statute, 
directing  them  to  make  such  rules  and  regulations  concern- 
ing the  practice  and  procedure  as  they  may  deem  expedient : 

Petition. 

In  the  High  Court  of  Justice.     Probate,  Divorce  and  Admi- 
ralty Division.     (Divorce.) 

To  the  Eight  Honorable  the  President  of  the  said  Division : 

The day  of ,  18—. 

The  petition  of  A.  B.,  of ,  showeth : 

1.  That  your  petitioner  was,  on  the  day  of , 

18 — ,  lawfully  married  to  C.  B.,  then  0.  D.  [spinster  or 
widow],  at  the  parish  church  of,  etc. 

[Here  state  where  the  marriage  tooTc place.'\ 

2.  That  after  his  said  marriage  your  petitioner  lived  and 

cohabited  with  his  said  wife  at and  at ,  and  that 

your  petitioner  and  his  said  wife  have  had  issue  of  their 
said  marriage children,  to  wit : 

[Here  stMe  the  names  and  ages  of  the  children,  issue  of  the 
marriage.'] 

3.  That  on  the day  of -,  18 — ,  and  on  other  days 

between  that  day  and ,  the  said  C.  B.,  at ,  in  the 

county  of ,  committed  adultery  with  E.  S. 

4.  That  in  and  during  the  months  of  January,  February 
and  March,  18—,  the  said  C.  B.  frequently  visited  the  said 

C.  B.  at ,  and  on  divers  of  such  occasions  committed 

adultery  with  the  said  E.  S. 

Your  petitioner  thei-ef ore  humbly  prays : 
That  your  lordship  will  be  pleased  to  decree: 
[Here  set  out  the  relief  sought.] 

And  that  your  petitioner  may  have  such  further  and  other 
relief  in  the  premises  as  to  your  lordship  may  seem  meet. 

[Petitioner's  signature.] 

'For  sufficiency  of  allegation,  see  §  378. 


§  752.]       FOEMS  OF  PLEADINGS  AND  DECREES.  711 

Answer. 

In  the  High  Court  of  Justice.    Probate,  Divorce  and  Admi- 
ralty Division.    (Divorce.) 

The day  of ,  18—. 

A.  B.  V.  0.  B. 

The  respondent  0.  B.,  by  0.  D.,  her  solicitor  [or,  in  per- 
son], in  knswer  to  the  petition  filed  in  this  cause,  saith : 

1.  That  she  denies  that  she  committed  adultery  with  K.  S., 
as  set  forth  in  the  said  petition : 

2.  Kespondent  further  saith  that  on  the day  of , 

18 — ,  and  on  other  days  between  that  day  and ,  the  said 

A.  B.,  at ,  in  the  county  of ,  committed  adulterv 

with  K.  L. 

[In  like  manner  respondent  is  to  state  conuwanoe,  condona- 
iion,  or  other  matters  relied  on  as  a  growndfor  dismissing  the 
petition.'] 

Wherefore  this  respondent  humbly  prays : 

That  your  lordship  will  be  pleased  to  reject  the  prayer 
■of  the  said  petition  and  decree,  etc. 

§  752.  Petition  for  divorce  on  account  of  cruelty. —  The 

following  petition  illustrates  the  form  in  which  specific  acts 
of  cruelty  should  be  alleged.  After  alleging  the  marriage 
and  residence  in  the  state,  the  petition  contained  the  follow- 
ing allegations  of  cruelty: 

"  (2)  That  on  February  1, ,  the  defendant  was  guilty 

of  extreme  cruelty  towards  her,  without  any  cause  or  prov- 
ocation, in  this :  That,  having  put  on  his  overcoat  to  go 
out  of  his  house,  and  for  no  cause  whatever,  became  angry, 
and  began  to  curse  and  swear  and  to  use  violent  language 
towards  plaintiff,  caUing  her  aU  kinds  of  vulgar  and  vile 
names,  and  taking  hold  of  her  person  in  a  rude  and  violent 
manner,  striking  her  with  his  clinched  fists.  He  threw  and 
knocked  her  to  the  floor,  and  threw  his  whole  body  and 
Aveight  upon  her  with  so  much  violence  and  force  as  to  injure 
the  whole  side,  body  and  head  of  the  plaintiff,  so  that  she 
was  for  a  long  time  sick  and  sore  from  said  injuries,  and, 
after  she  got  up  from  the  floor,  he  chased  her  about  the 
house,  jamming  her  in  the  door  as  she  was  escaping  from 
him. 

"  (3)  On  the  1st  day  of  February  he  was  guilty  of  extreme 
cruelty  towards  her,  without  any  cause  or  provocation  on 
her  part,  in  the  use  of  violent,  indecent  and  profane  language 

and  conduct,  calling  her  "  a bitch,  and  old  whore," 

And  other  like  names. 


T12  FORMS    OF   PLEADINGS    AND    DECKEES.  [§  753. 

"  (4)  In  the  spring  of ,  in  the  presence  of  plaintiff's; 

daughter,  he  was  guilty  of  extreme  cruelty  towards  plaintiff, 
without  any  cause  or  provocation,  and  at  divers  times  dur- 
ing that  spring,  at  their  home,  in  this :  That  he  called  her 
"  a  whore,  a  damned  bitch,"  and  other  Uke  names,  and  fre- 
quently, during  said  spring,  struck  her  with  his  fists,  and' 
assaulted  and  battered  her. 

"  (5)  That  he  is  a  man  of  vicious  and  vulgar  habits,  witb 
a  quick  and  bad  temper,  of  a  jealous,  selfish  and  revengeful 
disposition,  and  has  often  declared  that  he  would  never  live- 
with  plaintiff,  nor  permit  her  to  live  with  him ;  and  that  on 

the  first  Monday  in  April, ,  on  account  of  his  violent 

conduct  and  abusive  language,  she,  being  in  fear  of  great 
bodily  injuries,  if  not  of  her  life,  left  her  home,  and  has  since: 
lived  apart  from  defendant,  and  has  supported  herself."  ' 

§  753.  Answers  in  suits  for  divorce. —  The  foHowing^ 
forms  will  suggest  the  necessary  allegations  in  answer  to 
the  petition  for  divorce : 

\Title  of  cause.] 

1.  The  defendant,  in  answer  to  the  plaintiff's  petition,  de- 
nies each  and  every  allegation  therein  contained  except  as 
hereinafter  admitted. 

2.  -The  defendant  admits  that  the  plaintiff  has  resided  in. 

this  state  and  county  for  more  than years  immediately 

preceding  the  filing  of  said  petition. 

Denial  of  marriage. 

3.  The  defendant  denies  that  the  parties  to  this  action' 
^vere  married  at  the  time  alleged  in  said  petition  or  at  any 
other  time.  The  defendant  further  denies  that  he  agreed 
to  become  the  husband  of  the  plaintiff,  or  that  he  aflBrmed 
or  consummated  the  marriage  alleged  in  said  petition,  or 
that  he  recognized  plaintiff  as  his  wife  either  in  public  or 
private,  or  introduced  her  to  others  as  his  wife,  or  that  he 
spoke  of  her  as  such  in  the  presence  of  others,  or  that  the 
parties  herein  are  reputed  to  be  husband  and  wife. 

Mecrimination. 

The  defendant  further  alleges  that  the  plaintiff  has  been 
guilty  of  [here  state  a  cause  for  dvoorce  as  in  the  form  of  a; 
jpetitiorv],  and  that  defendant  on  discovering  said  offense  [or^ 
after  the  commission  of  said  offense]  separated  from  plaint- 
iff and  has  not  condoned  or  forgiven  said  offense. 

1  Paden  v.  Paden,  28  Neb.  275,  44  N.  W.  2i38. 


§  Y54.J       FOEMS  OF  PLEADINGS  AND  DECREES.  IIS- , 

Condonation. 
The  defendant  further  alleges  that  on  or  about  ■ 


and  after  the  acts  alleged  in  plaintiff's  petition,  the  plaintiff 
voluntarily  forgave  the  alleged  offense  and  resided  and  co- 
habited with  defendant  as  his  wife  during , . 

Justification  for  cruelty. 

The  defendant  further  alleges  that  at  the  time  referred  to 
in  the  first  paragraph  of  plaintiff's  petition,  the  plaintiff'  at- 
tempted to  strike  defendant  with  a  chair,  without  any  cause 
or  provocation  on  his  part ;  that,  in  order  to  protect  himself^ 
defendant  immediately  took  the  chair  away  from  her,  using 
no  more  force  or  violence  than  was  necessary.  That  plaint- 
iff then  seized  a  heavy  cane  and  attempted  to  strike  him 
therewith,  and  defendant  was  compelled  to  take  the  cane 
away  from  her  to  protect  himself  from  injury,  which  he  did, 
using  no  more  force  or  violence  than  was  necessary.  That 
any  injuries  the  plaintiff  may  have  received  in  resisting  de- 
fendant's  efforts  to  protect  himself  were  not  voluntarily  in- 
flicted with  intent  to  injure  the  plaintiff.  Defendant  denies 
that  he  struck  or  beat  the  plaintiff,  as  alleged  in  said  peti- 
tion, or  used  any  violence  towards  her  except  as  herein  set- 
forth. 

§  754.  Answer  and  cross-petition  for  divorce. — 

1.  The  defendant,  in  answer  to  the  plaintiff's  petition,  de- 
nies each  and  every  allegation  therein  contained,  except  as 
hereinafter  admitted. 

2.  The  defendant  admits  that  for  more  than years 

immediately  preceding  the  filing  of  said  petition  the  plaint- 
iff has  been  a  resident  of  this  state,  and  that  the  parties  t» 
this  action  were  married  as  alleged  in  said  petition. 

3.  The  defendant  denies  that  he  committed  adultery  with 
at  the  time  and  place  alleged  in  said  petition. 

4.  The  defendant  alleges  that  since  the  filing  of  said  peti- 
tion the  plaintiff  has  voluntarily  cohabited  with  the  defend- 
ant as  his  wife,  and  thereby  condoned  the  offense  alleged  in 
said  petition. 

5.  The  defendant  alleges  that  the  plaintiff  had  sexual  in- 
tercourse with  one ,  at  defendant's  residence  during 

his  absence,  in  the  months  of  September  and  October, ; 

and  the  defendant,  on  discovering  said  offense,  ceased  to  co- 
habit with  the  plaintiff,  and  has  not  condoned  her  offense. 

6.  [Add  allegation  concernvng  property.'] 


714  FORMS    OF   PLEADINGS    AND    DECEEES.  [§  755. 

,  Therefore  defendant  prays  that  the  plaintiff's  petition  be 
dismissed,  that  he  be  divorced  from  the  plaintiii,  and  that 
said  marri3,ge  be  dissolved,  and  for  such  other  relief  as  may 
be  just  and  equitable. 

C.  B.,  by ,  his  Attorney. 

lAdd  verifioation  if  required.^ 

§  755.  Petition  for  annulment  of  marriage. —  The  pe- 
tition for  annulment  of  marriage  is  similar  in  form  to  the 
petition  for  divorce.'  The  following  petition  will  suggest 
the  form  for  annulment  on  the  ground  of  fraud : 

1.  {^Allege  residence  as  in  a  joetition  for  divorce.] 

2.  [Allege  the  mwrriage.'] 

3.  Plaintiff  alleges  that  said  defendant,  for  the  purpose 
of  inducing  and  persuading  this  plaintiff  to  enter  into  said 
marriage,  falsely  and  fraudulently  represented  herself  to  be 
a  virtuous  and  chaste  woman,  when  in  truth  and  in  fact  she 
was  not,  but  was  then  pregnant  by  some  man  other  than 
this  plaintiff. 

4.  Plaintiff,  relying  upon  the  representations  so  made  by 
said  defendant,  and  belie^aug  the  same  to  be  true,  entered 
into  said  marriage,  which  he  would  not  have  done  had  not 
■said  false  representations  been  made  to  him.  That  imme- 
diately upon  discovering  that  said  representations  were  false, 

to  wit,  on  or  about  the day  of ,  18 — ,  he  ceased  to 

live  and  cohabit  with  said  defendant  and  has  ever  since  re- 
mained away  from  her. 

5.  That  plaintiff,  believing  said  marriage  to  be  valid,  on 
or  or  about , ,  conveyed  to  the  defendant  the  prop- 
erty now  occupied  by  plaintiff  as  a  homestead  and  described 
as  follows,  to  wit:  [description  of  property.']  That  said 
property  was  owned  by  plaintiff  before  said  marriage,  and 
that  defendant  has  contributed  nothing  toward  the  improve- 
ment of  the  same.  Plaintiff  further  says  that  he  received 
no  property  of  any  kind  from  the  defendant. 

Therefore  plaintiff  prays  that  said  marriage  may  be  de- 
clared nuU  and  void  and  that  the  conveyance  of  said  real 
•estate,  to  wit  [description  of  property],  niay  be  vacated  and 
set  aside  and  the  title  of  the  same  declared  to  be  in  the 
plaintiff,  and  for  such  other  relief  as  may  seem  just  and 
equitable. 

1  For  forms  of  petition  to  have  marriage  declared  valid,  see  Gibson 
V.  Gibson,  34  Neb.  394^  39  N.  "W.  450. 


§  756.]  FOEMS    OF    PLEADINGS    AND    DECEEES.  715 

Other  causes  for  annulment  of  marriage  may  be  alleged 
as  follows: 

Physical  incapacity. 

That  at  the  time  of  said  marriage  the  defendant  was  and 
has  ever  since  continued  to  be  wholly  incapable  to  consum- 
mate said  marriage  by  reason  of  the  [here  state  the  nature 
of  the  incapacity,  as:  malformation  of  her  parts  of  genera- 
tion, or  the  frigidity  and  impotence  of  his  parts  of  genera- 
tion], and  that  such"  incapacity  is  incurable. 

Prior  marriage  undissolved. 

That  at  the  time  of  the  said  marriage  of  plaintiff  the  de- 
fendant had  a  former  [husband  or  wife]  living,  and  not  di- 
vorced. 

Mental  incapacity. 

That  at  the  time  of  said  marriage  the  plaintiff  was  [in- 
sane, feeble-minded  o?-  intoxicated],  and  therefore  incapable 
of  understanding  the  nature  of  the  marriage  contract,  and 
incapable  of  entering  into  the  marriage  relation.  That 
plaintiff  is  now  of  sound  mind,  and  has  not  affirmed  or  in 
any  way  ratified  said  marriage. 

Nonrage. 

That  at  the  time  of  said  marriage  the  plaintiff  was  but 
years  of  age  and  the  defendant  was  but years  of 


age,  and  therefore  incapable  of  contracting  marriage. 

That  before  the  plaintiff  was  [age  of  consent]  years  old 
she  separated  from  defendant,  and  has  not  in  any  way  rati- 
fied or  affirmed  said  marriage.^ 

§  756.  Petition  to  annul  a  marriage  contracted  in  good 
faith  and  to  have  the  children  declared  legitimate. — 

1.  [Allege  facts  showing  jurisdiction  as  in  the  petition.'] 

2.  [Allege  the  marriage.] 

3.  The  plaintiff  alleges  that  before  said  marriage  the  de- 
fendant married  onB  A.  D.,  at ,  in  county, , 

and  that  said  parties  cohabited  as  husband  and  wife  until 
about  the  day  of ,  18 —  [here  allege  facts  show- 
ing a  prior  ma/t'riage  undissolved],  and  that  said  marriage 
of  plaintiff  with  defendant  was  entered  into  subsequently 
but  with  good  faith  on  the  part  of  plaintiff  and  with  a  full 
behef  that  the  said  A.  D.  was  [dead  or  divorced]. 

1  For  form  of  petition  to  annul  marriage  on  the  ground  of  fraud, 
«rror  and  duress,  see  cases  cited  in  §  634. 


716  FOBMS    OF   PLEADINGS    AND    DECREES.  [§  757.. 

4.  \JSere  allege  the  facts  showing  that  a  decree  of  divorce  is- 
void,  or  that  the  said  A.  D.  was  livicg  at  the  time  said  mar- 
riage was  entered  into.] 

5.  That  the  issue  of  the  said  marriage  of  the  plaintiff  and 
defendant  is  as  follows :  \^ive  names  and  ages  of  children.'} 

■  The  plaintiff  therefore  prays  that  said  marriage  between 
the  plaintiff  and  defendant  may  be  declared  null  and  void^ 
and  that  said  marriage  was  contracted  in  good  faith  and 
with  the  full  belief  that  the  said  A.  D.  was  [dead  or  di- 
vorced], and  that  said  children  be  declared  legitimate,  and 
for  such  other  relief  as  may  be  just  and  equitable. 

A.  B.,  by ,  her  Attorney. 

[^Add  the  required  verification.'] 

§  757.  Petition  for  maintenance  of  child  after  divorce. — 

The  following  petition  has  been  sustained  as  stating  a  cause 
of  action  against  the  husband  for  the  maintenance  of  a  child 
after  a  decreee  of  divorce  in  which  the  wife  was  allowed 
permanent  alimony  and  the  custody  of  the  child,  but  made 
no  provision  for  the  support  of  the  child :  ^ 

"  The  plaintiff,  I.  P.,  for  her  petition  against  the  defend- 
ant, J.  P.,  says  that  on  or  about  the day  of ,  18 — ,, 

she  was  married  to  the  defendant;  that  there  was  issue  of 

said  marriage  a  son,  A.  P.,  who  still  lives,  and  is  now  ■ 

years  of  age ;  that  at  the ■  term  of  the  court  of  common 

pleas  in  and  for  the  county  of ,  in  the  state  of ,  such 

proceedings  were  had  by  said  court,  in  a  certain  action  for 
divorce  therein  pending,  in  which  action  said  plaintiff  herein 
was  plaintiff  and  said  defendant  herein  was  defendant;  that 
said  plaintiff  was,  on  account  of  the  misconduct  and  ill 
treatment  and  neglect  of  said  defendant,  by  the  judgment 
of  said  court  of  common  pleas,  divorced  from  said  defend- 
ant, and  awarded  '  the  custody,  nurture,  education  and  care 
of  said  minor  child,'  A.  P. 

"  Plaintiff  further  says  that  ever  since  said  decree  of  di- 
vorce was  entered,  said  plaintiff  and  defendant  have  lived 
separate  and  apart,  and  said  A.  P.,  son  of  the  said  defend- 
ant, has  been  boarded  and  clothed  and  cared  for  by  the 
plaintiff,  and  that  such  boarding,  clothing,  care  and  atten- 
tion so  furnished  said  son  of  the  defendant  by  the  plaintiff 
were  necessary  and  appropriate  to  his  comfort  and  condi- 
tion in  life,  and  were  of  the  value  of  not  less  than dol- 
lars per  year. 

"  Said  plaintiff  further  says  that  at  the  time  said  decree 

1  Sustained  in  Pretzinger  v.  Pretzinger,  45  O.  453,  15  N.  E.  471. 


§  T58.]  FOfiMS    OF   PLEADINGS    AND    DECKEES.  717 

•of  divorce  aforesaid  was  granted,  said  defeadant  herein  was 
insolvent,  but  that  he  has  become  and  now  is  solvent  and 
Avell  able  to  support  his  said  son. 

"  Plaintiff  says  that  there  is  due  and  owing  her  from  the 
defendant  for  said  boarding,  clothing  and  care,  a  specific  ac- 
-count  of  which  is  hereto  attached,  marked  Exhibit  '  A,'  the 

sum  of  dollars,  and  interest;  wherefore  said  plaintiff 

prays  judgment  against  said  defendant,"  etc. 

In  this  action  it  was  held  that  the  following  answer  did 
not  state  sufficient  facts  to  constitute  a  defense  to  the  above 
petition : 

"  That  plaintiff  in  said  cause,  in county  common  pleas 

court,  asked  that  the  care,  custody  and  nurture  of  their 
said  child  be  awarded  to  her,  and  that  reasonable  alimony 
be  decreed  her  for  the  support  of  herself  and  their  said  child. 
That  on  the  final  hearing  thereof  the  court  decreed  to  the 
■said  plaintiff  a  divorce  on  the  grounds  of  gross  neglect  of 
duty,  and  for  no  other  cause,  and  he  denies  that  said  divorce 
was  granted  on  account  of  ill  treatment  of  plaintiff  by  this 
defendant. 

"  That  the  said  court  further  decreed  to  plaintiff  the  care 
and  custody  of  their  said  child  at  her  special  request,  and 
against  the  wishes  and  requests  of  this  defendant,  and  until 
the  further  order  of  said  court,  and  decreed  permanent  ali- 
mony, in  the  sum  of  — — -  dollars,  in  addition  to  the  sum  of 

■  dollars  in  said  cause  allowed  as  temporary  alimony, 

which  said  court  found  to  be  a  reasonable  sum  for  the  sup- 
port of  herself  and  said  child,  as  prayed  for  in  her  said  peti- 
tion ;  and  that  this  plaintiff  then  and  there  appeared  in  open 
'Court  and  agreed  to  accept  said  sum,  and  did  then  and  there 
.accept  said  sum  in  fuU  satisfaction  of  all  alimony  that  she 
was  or  might  be  entitled  to  in  the  premises." 

§  758.  Petition  to  set  aside  a  fraudulent  conveyance. — 

The  petition  should  allege  all  the  facts  necessary  to  state  a 
cause  for  divorce,  and  also  sufficient  facts  to  constitute  a 
cause  of  action,  as  in  the  ordinary  cases.  The  following- 
petition  has  been  sustained  as  stating  a  cause  of  action  when 
assailed  by  a  general  demurrer,  and  because  the  causes  of 
action  were  improperly  joined.  The  petition  Avas  in  the 
usual  form  of  a  petition  for  divorce,  and  also  alleged  that 
the  husband  had,  with  the  proceeds  of  the  wife's  prop- 
erty, purchased  certain  property,  and  had  directed  the  title 


718  FOKMS    OF   PLEADINGS   AND   DECREES.  [§  758, 

to  be  placed  in  the  name  of  another  in  order  to  defeat  her 
claim  to  the  property,  and  proceeds,  as  follows : 

"  That  the  defendants,  fraudulently  contriving  and  com- 
bining together  to  chea;t  and  defraud  this  plaintiflf,  and  ta 
prevent  her  recovery  of  and  from  the  defendant  CD.  sup- 
port for  herself  and  children,  alimony,  suit  money,  and  the- 
avails  of  the  sale  of  the  property  received  by  him  as  afore- 
said, caused  the  said  E.  F.  and  W .  F.  to  deed  the  said  real 
estate  so  purchased  and  paid  for  by  the  defendant  0.  D.,  as 
aforesaid  and  hereinbefore  described,  to  the  defendant  A.  D.,, 
and  the  defendant  A.  D.,  in  pursuance  of  said  fraudulent 
purpose  and  design,  accepted  said  deed  and  caused  the  same 

to  be  recorded  on  the day  of ,  18 — ,  in  the  office  of 

the  register  of  deeds  for  Dane  county^  "Wisconsin,  in  volume 
of  Deeds,  on  page ." 

"  The  plaintiff  further  shows  that  the  defendant  A.  D. 
knew  the  plaintiff  and  defendant  C.  D.  while  they  lived  to- 
gether as  man  and  wife  in  the  state  of  Massachusetts,  and 
before  their  removal  to  the  state  of  Wisconsin,  and  knew 
the  relation  that  subsisted  between  them." 

"  The  plaintiff  further  shows,  upon  information  and  belief,, 
that  the  defendant  A.  D.,  prior  to  the  purchase  of  the  prop- 
erty of  the  said  E.  F.'and  "W".  F.  by  the  defendant  0.  D.,  as 
hereinbefore  stated,  knew  that  the  defendant  C.  D.  took 
the  avails  of  the  sale  of  the  plaintiff's  property  in  Massachu- 
setts, as  hereinbefore  alleged,  and  that  he  brought  the  same 
to  Wisconsin,  and  at  the  time  of  said  purchase  knew  that 
the  same  was  used  in  paying  the  purchase-price  of  the  "real 
estate  hereinbefore  described." 

"The  plaintiff  further  shows  that  the  defendant  0.  D. 
has  threatened  that  if  this  plaintiff  in  any  way  interfered 
with,  or  commenced  proceedings  against  him,  he  would  dis- 
pose of  all  his  property,  leave  the  country  and  never  return." 

"  The  plaintiff  further  shows  that  she  has  now  no  prop- 
erty in  her  own  right,  but  is  entirely  dependent  for  the  sup- 
port of  herself  and  children,  and  their  edacation,  upon  her 
own  exertions  and  the  kindness  of  her  friends;  that  the 
present  value  of  the  property  of  the  defendant  C.  D.,  as  she 

is  informed  and  believes,  is  about dollars ;  that  the  real 

estate  hereinbefore  described  has  been  much  improved  since 
the  same  was  purchased  by  the  defendant  C.  D.,  as  before 
stated,  and  the  same  is  now  worth  a,bout  - — -  dollars." 

The  prayer  was  for  divorce  and  alimony,  and  that  said, 
conveyance  be  set  aside,  and  for  general  relief.' 

1  Damon  v.  Damon,  28  Wis.  510. 


§§  759, 760.]    FOEMs  OF  pleadings  and  deceees.  719* 

§769.  Petition  for  alimony  without  divorce. —  Where 
the  statute  permits  alimony  -without  divorce  in  certain  cases,, 
the  petition  must  allege  one  of  the  statutory  causes,  and 
must  conform  to  the  provisions  of  the  statute.^  "Where  the- 
application  is  made'  in  a  court  of  equity,  the  petition  must 
allege-  sufficient  facts  to  show  a  justifiable  cause  for  sepa- 
rating from  the  husband  and  the  necessity  for  separate 
maintenance.  The  following  petition  -was  held  sufficient, 
although  it  does  not  allege  the  ability  of  the  husband  to  pay 
alimony.  After  alleging  a  marriage  and  cohabitation,  the 
petition  continued  in  substance  as  follows ; 

"  That  about defendant  commenced  to  abuse  and  ill 

treat  plaintiff,  calling  her  a  thief,  and  demanding  explana- 
tions, and  informing  her  that  she  could  no  longer  live  -with 
him,  or  be  supported  by  him,  unless  explanations  of  his  ac- 
cusations -were  made,  of  which  plaintiff  -was  not  guilty; 

"  That  on  account  of  the  violent  abuse  and  unreasonable 
language  of  defendant,  plaintiff  was  compelled  to  seek  board 
and  lodging  elsewhere ; 

"  That  after  plaintiff  was  compelled  to  leave  defendant's, 
home,  he  circulated  among  her  friends  and  neighbors  false 
and  scandalous  stories  concerning  plaintiff's  chastity,  know- 
ing them  to  be  false  and  without  foundation ; 

"  That  during  the  last  year  of  plaintiff's  living  with  de- 
fendant he  ill  treated  her  to  such  extent  as  to  render  her 
living  with  him  detrimental  to  her  health ; 

"  That  defendant  peremptorily  refused  to  support  plaintiff" 
or  allow  her  in  his  house;  and  that  plaintiff  has  no  property^ 
and  is  dependent  on  her  own  labor  for  support,  and  is  un- 
able to  obtain  employment,  and  compelled  to  incur  indebt- 
edness against  defendant  for  board  and  lodging."  ^ 

§  760.  Applications  for  alimony. —  The  application  for 
permanent  alimony  is  a  part  of  the  petition  or  cross-petition 
for  divorce.'^   The  application  for  temporary  alimony  is  gen-' 
erally  in  the  form  of  a  motion  supported  by  affidavits  and 
the  pleadings.   The  following  has  been  suggested  as  a  proper 

1  Arnold  v.  Arnold  (Ind.),  39  N.  E.  also,  allegations  in  Earle  v.  Earle^ 
863.    See  form  of  petition  in  Carr    27  Neb.  277,  43  N.  W.  118, 

V.  Carr,  6  Ind.  Ap.  377,  33  N.  E.  805.        ^  gee  forms  of  petitions. 

2  Finn  v.  Finn,  62  la.  482.    See, 


'720  FOEMS    OF   PLEADINGS   AND    DECEEES.  [§  T60. 

•form  for  the  application  for  temporary  alimony,  but  it  would 
.seem  that  some  of  the  facts  alleged  appear  of  record  and  in 
the  pleadings,  while  the  remaining  facts  could  be  properly 
set  up  in  affidavits. 

Petition  for  alimony  pendente  lite  where  the  wife  is  plaintiff. 

1.  A.  B.,  the  plaintiff  herein,  respectfully  states  to  the 

<;ourt  that  on  the day  of ,  18 — ,  she  commenced  an 

a,otion  in  this  court  against  0.  D.  for  a  dissolution  of  the 
marriage  relation  existing  between  them,  upon  the  ground 

of  on   the  part  of  said   defendant.     A  copy  of  the 

petition  is  hereto  annexed  and  made  a  part  hereof. 

2.  On  the day  of ,  18 — ,  said  defendant  answered 

^he  petition  of  the  plaintiff  in  said  action,  denying  the  charge 

of  therein  made,_  but  the  plaintiff  alleges  that  said 

■charge  is  true,  and  she  will  be  able  to  prove  the  same  on  the 
trial  of  said  cause. 

3.  The  plaintiff  is  entirely  without  means  to  carry  on  this 
action  or  to  support  herself^  during  its  pendency,  and  [state 
the  facts  in  regard  to  the  number  and  age  of  child/ren  if  in 
care  of'wife\. 

4.  The  defendant  is  possessed  of  the  following  real  estate, 
to  wit:  [desGJ'ihe prermses\  which  the  plaintiff  has  reason  to 

beheve  is  free  from  incumbrances  and  is  of  the  value  of 

dollars,  and  is  also  possessed  of  personal  property  to  the 
value  of dollars. 

The  plaintiff  therefore  prays  that  the  defendant  may  be 
[required  to  pay  the  plaintiff  a  reasonable  sum  for  her  main- 
tenance and  support  during  the  pendency  of  the  action,  and 
£uch  further  sum  as  will  enable  her  to  carry  on  this  action. 

[  Verification.']  A.  B. 

Petition  for  alimony  pendente  lite  where  wife  is  defendant. 

1.  Tour  petitioner  respectfully  states  to  the  court  that  on 

the day  of ,  18 — ,  A.  B.  commenced  an  action  in 

this  court  against  her  for  a  dissolution  of  the  marriage  rela- 
tion existing  between  them,  upon  the  ground  of  adultery. 

2.  On  the day  of ,  18 — ,  your  petitioner  iiled  an 

answer  to  said  petition,  denying  all  the  allegations  therein 
except  the  allegation  as  to  the  marriage  between  the  plaint- 
iff in  said  action  and  the  defendant. 

3.  [Continue  as  in  preceding  fiorm,  changing  the  language 
to  conform  to  the  facts.']  ^ 

1  Maxwell's  Pleading  and  Practice,  p.  659. 


§  Y61.J  FORMS    OF   PLEADINGS   AND   DECEEES.  721 

According  to  the  practice  in  England  the  proceedings  for 
alimony  require  a  separate  petition  and  answer,  as  such  ques- 
tions cannot  be  tried  before  a  jury  in  an  action  in  which 
the  co-respondent  is  a  party.  The  following  form  has  been 
prescribed  by  the  courts  for  applications  for  both  temporary 
•■and  permanent  alimony : 

Petition  for  alimowy. 

In  the  High  Court  of  Justice.    Probate,  Divorce  and  Admi- 
ralty Division. 

The day  of ,  18—. 

A.  B.  V.  C.  B. 

The  petition  of  C.  B.,  the  lawful  wife  of  A.  B.,  showeth : 

1.  That  the  said  A.  B.  does  now  carry  on,  and  has  for 

many  years  past  carried  on,  the  business  of  a at , 

and  from  such  business  he  derives  the  net  annual  income  of 
£ . 

2.  That  the  said  A.  B.  is  now,  or  lately  was,  possessed  of, 

or  entitled  to, proprietary  shares  of  the Railway 

"Company,  amounting  in  value  to  £ ,  and  yielding  a  clear 

annual  dividend  of  £ . 

3.  That  the  said  A.  B.  is  possessed  of  certain  stock  in  trade 
in  his  said  business  of  a of  the  value  of  £, . 

[iw  s(Mne  manner  state  particulars  of  any  other  po'operty 
which  the  husband  may  possess."] 

Your  petitioner  therefore  humbly  prays : 

That  your  lordship  wUl  be  pleased  to  decree  her  such  sum 
•or  sums  of  money  by  way  of  alimony  pendente  lite  [or,  per- 
manent alimony]  as  to  your  lordship  shall  seem  meet. 

§  761.  Order  for  temporary  alimony. —  The  order  for 
temporary  alimony  may  include  a  provision  for  the  -custody 
and  maintenance  of  the  children  during  the  litigation  and 
also  a  specific  sum  for  attorney's  fees.  The  order  may  be 
to  pay  certain  sums  to  the  wife  or  to  some  person  or  officer 
for  her  use.  In  the  western  states  the  usual  practice  is  to 
require  all  such  payments  to  be  made  to  the  clerk  of  the 
court.  In  case  the  payments  are  not  made  as  required,  the 
•clerk  may,  upon  request  of  the  plaintiff,  issue  execution 
.against  the  defendant,  as  the  order  is  a  judgment  in  form 
46 


T22  FOEMS    OF  PLEADINGS   AND   DECEEES.  [§  763* 

and  effect.  The  following  order  will  suggest  the  necessary 
provisions  of  the  ordinary  order  for  temporary  alimony : 

"  It  is  ordered,  adjudged  and  decreed  that  on  or  before 

the day  of ,  18 — ,  the  said  defendant  deposit  with 

the  clerk  of  this  court  the  sum  of  $100,  for  the  use  and  bene- 
fit of  the  plaintiff  for  her  costs  herein  to  accrue,  or  which 
may  accrue  in  said  cause ;  also,  f or-the  plaintiff  personally, 
for  her  personal  use  and  benefit,  the  sum  of  $60;  also,  t&e 
further  sum  of  $300  for  plaintiff's  counsel  and  attorney's, 
fees  herein, —  each  and  every  of  the  aforesaid  payments  to- 
be  made  on  or  before  the day  of . 

"  It  is  further  ordered,  adjudged  and  decreed  that  on  this 
day  of  ,  and  every  calendar  month  during  the 


pendency  of  this  suit,  and  so  until  the  further  order  of  the' 
court,  the  defendant  pay  to  the  clerk  of  this  court,  for  the 
plaintiff  personally,  the  sum  of  $25 ;  that  the  defendant  also, 
from  this  time  forthwith,  in  addition  to  the  monthly  allow- 
ance due,  furnish  for  the  plaintiff  and  her  children  all  reason- 
able food,  fuel  and  clothing,  or  provide  for  her  obtaining 
the  same  on  his  credit,  and  allow  to  her  and  said  children 
the  use  of  the  house  and  residence  mentioned  in  the  plead- 
ings herein,  and  now  occupied  by  them,  and  the  furniture  and 
furnishings  therein,  as  their  abiding  place  and  home,  with- 
out let  or  hindrance ;  and,  in  case  of  failure  of  the  said  de- 
fendant to  furnish  food,  fuel  and  clothing  as  aforesaid,  or 
to  furnish  credit  whereon  and  whereby  plaintiff  may  pro- 
cure the  same,  plaintiff  has  leave,  without  additional  showing^ 
to  apply  for  an  increase  of  the  aforesaid  monthly  allowance; 
this  without  prejudice  to  the  rights  of  either  party  here- 
after to  apply  for  a  modification  of  this  order  as  far  as  the 
a,f  oresaid  monthly  allowance  is  concerned. 

"  It  is  further  adjudged  and  decreed  that  in  case  of  fail- 
ure on  the  part  of  the  defendant  to  pay  any  one  or  more  of 
the  aforesaid  sums  of  money,  or  any  monthly  allowance 
aforesaid,  the  plaintiff  may  have  execution  to  collect  the 
same,  with  costs  of  issuing  said  execution,  to  be  taxed,  with- 
out prejudice  to  her  rights  to  proceed  against  the  defendant 
as  for  contempt."  ^ 

§  762.  Decrees  of  absolute  divorce. —  The  decree  of  di- 
vorce should  contain  the  findings  of  the  court,  and  should 
state  the  nature  of  the  divorce  granted  and  the  cause  for 

» This  order  was  affirmed  in  Cowan  u  Cowan,  19  Colo.  316,  35  P.  347. 


§  762.]       FOEMS  OF  PLEADINGS  AND  DECEBES.  723 

■which  the  decree  was  granted.  It  should  be  based  on  the 
pleadings,  and  should  show  whether  the  divorce  is  granted 
on  the  petition  or  cross-petition.  If  no  appearance  was 
made  by  defendant,  the  nature  of  the  service  may  be  stated 
as  one  of  the  jurisdictional  facts.  The  following  form  may 
be  followed  where  a  decree  is  to  be  rendered  in  contested 
cases : 

[Title  of  cause.^ 

This  cause  came  on  to  be  heard  on  this  ■ day  of 


18 — ,  upon  the  petition,  answer  and  cross-petition  and  reply, 
and  the  evidence  submitted  in  open  court  by  both  parties, 
and  was  submitted  to  the  court;  on  consideration  whereof 

the  court  finds  that  the  plaintiflf  has  been  a  resident  of 

county  and  state  of  for  years  before  filing  her 

petition  herein;  that  the  parties  were  married  as  alleged 
in  said  petition;  that  the  defendant  committed  adultery  as 
alleged  in  said  petition.  The  court  further  finds  that  the 
plaintifl'  did  not  condone  said  adultery,  and  has  not  wilfully 
deserted  the  defendant  as  alleged  in  said  answer  and  cross- 
petiti6n,  and  said  cross-petition  is  hereby  dismissed. 

Wherefore  it  is  ordered,  adjudged  and  decreed  by  the 
court  that  the  marriage  relation  hei-etof  ore  existing  between 
,  the  said  plaintiiBf,  and ,  the  said  defend- 
ant, is  hereby  dissolved,  and  the  said  parties  are,  and  each 
of  them  is,  released  from  the  bonds  of  matrimony. 

It  is  further  ordered  [insert  jarovisions  of  decree  concerning 
alimony,  etci]. 

The  following  decree  was  held  valid  in  a  recent  case, 
although  it  does  not  reveal  the  cause  for  divorce,  and  con- 
tained no  special  findings  of  fact,  but  a  general  finding  that 
the  material  allegations  of  the  complaint  are  true : ' 

"  This  cause  having  been  brought  on  to  be  heard  this 
20th  day  of  November,  1883,  upon  the  complaint  herein 
taken  as  confessed  by  the  defendant,  whose  default  for  not 
answering  has  been  duly  entered,  and  upon  the  answer  of 
the  state  of  Oregon  being  filed  herein,  and  upon  the  proofs; 
taken  herein,  and  upon  the  report  of  Charles  T.  Hyde,  referee 
in  this  case,  to  whom  it  was  referred  by  order  of  this  court 
duly  made  the  12th  day  of  November,  1883,  to  take  the 

1  Wilhite  V.  Wilhite,  41  Kan.  154,  31  P.  173. 


724  FOKMS    OF   PLEADINGS   AND   DECEEES.  [§  763. 

])roof  of  the  facts  set  forth  in  the  complaint,  and  to  report 
the  same  to  the  court.  . 

"  And  the  said  referee  having  taken  the  testimony  by 
written  questions  and  answers,  and  reported  the  same  to 
the  court  on  this  20th  day  of  November,  1883,  from  which 
it  appears  that  all  the  material  allegations  of  the  complaint 
are  sustained  by  testimony  free  from  all  legal  exceptions  as 
to  its  competency,  admissibility  and  sufficiency. 

"  And  it  also  appearing  to  said  court  that  the  said  defend- 
ant and  T.  C.  Hyde,  the  district  attorney  of  the  sixth  judi- 
cial district  of  Oregon,  was  duly  served  with  process,  and 
all  and  singular  the  law  and  the  premises  being  by  the  court 
here  seen,  heard,  understood  and  fully  considered. 

"Wherefore,  it  is  here  ordered,  adjudged  and  decreed, 
and  the  court,  by  virtue  of  the  power  and  authority  herein 
vested,  and  in  pursuance  of  the  statute  in  such  cases  made 
and  provided,  does  order,  adjudge  and  decree  that  the  raar- 
ria,ge  between  the  said  plaintiff,  Daniel  W.  "White,  and  said 
defendant,  Mary  A.  White,  be  dissolved,  and  forever  held 
for  naught,  and  the  same  is  hereby  dissolved  accordingly, 
and  the  said  parties  are,  and  each  of  them  is,  freed  and  abso- 
lutely released  from  the  bonds  of  matrimony,  and  all  the 
obligations  thereof. 

"  And  it  is  further  ordered  and  decreed  that  the  custody 
of  the  minor  children  of  said  marriage,  to  wit,  Thomas  E. 
White,  aged  fifteen  years,  RoceUa  V .  White,  aged  eleven 
years,  Edward  A.  White,  aged  eight  years,  and  Claudius  E. 
White,  aged  seven  years,  be,  and  the  same  are  hereby, 
awarded  to  the  plaintiff." 

§  763.  Default  upon  constructive  serA'ice. —  Where  the 
decree  of  divorce  is  rendered  upon  default,  and  the  service 
upon  the  defendant  is  not  personal  but  some  form  of  con- 
structive service,  the  decree  may  recite  the  nature  of  the 
Service  and  the  default  of  the  defendant,  together  with  the 
usual  findings. 

{Title  of  cause.] 

'Now  on  this  day  of ,  18 — ,  this  cause,  came  on 

to  be  heard,  the  plaintiff  appearing  in  person  and  by  her  at- 
torney, but  the  defendant,  being  duly  called,  appears  not 
but  makes  default;  whereupon  this  cause  is  submitted  to  the 
court  upon  the  proof  of  publication  and  the  petition  of  the 
plaintiff  and  the  evidence;  on  consideration  whereof  the 
court  finds :  That  defendant  was  dulv  served  with  summons 


§§  764,  T65.]     FOEMs  of  pleadings  and  decrees.  125 

and  a  copjr  of  said  petition  by  delivering  the  same  to  the 

defendant  in  the  city  of ,  and  state  of [or,  that  due 

notice  was  given  to  the  defendant  by  the  publication  of 
summons] ;  that  defendant  has  failed  to  answer  or  demur  to 
said  petition;  that  the  plaintiff  has  been  a  honajide  resident 
of  —  county,  in  the  state,  before  the  filing  of  her  petition 

herein  [or,  has  resided  in  the  state  of , years  before 

the  filing  of  her  petition  herein,  and  was,  and  now  is,  a  resi- 
dent of county,  in  the  state  of ] ;  that  on  the 

day  of  the  plaintiff  was  la^vfuUy  married  to  the  de- 
fendant ;  that  on  the  day  of •  the  defendant  wil- 
fully deserted  the  plaintiff  without  just  cause  and  has  ever 
since  absented  himself. 

Wherefore  it  is  ordered,  adjudged  and  decreed  by  the 
court  that  the  marriage  existing  between  the  said  plaintiff, 

,  and  the  said  defendant, ,  be  dissolved, 

and  the  same  is  hereby  dissolved  accordingly,  and  the  said 
parties  are,  and  each  of  them  is,  freed  and  absolutely  re- 
leased from  the  bonds  of  matrimony  and  all  the  obligations 
thereof;  and  it  is  further  ordered  and  decreed  that  this 
cause  be  dismissed  without  prejudice  to  the  plaintiff  as  to 
alimony  and  division  of  the  defendant's  property. 

§764.  Decree  of  separation  or  limited  divorce. —  The 

following  form  of  a  decree  of  separation  is  suited  to  the 
l^ew  York  practice :  i 

It  is  therefore  ordered,  adjudged  and  decreed  that  the 
plaintiff,  A.  B.,  the  lawful  wife  of  the  defendant  C.  B.,  be 
and  is  hereby  forever  separated  [or,  separated  until  the 
further  order'of  the  court]  from  said  defendant,  his  bed  and 
board,  upon  the  ground  of  extreme  cruelty  [or  other  cause] ; 
provided,  however,  that  the  parties  hereto  may,  at  any  time 
hereafter  by  their  joint  petition,  apply  to  this  court  to  have 
this  judgment  modified  or  discharged.   ' 

It  is  further  ordered  and  adjudged  that  neither  of  said 
parties  is  at  liberty  to  marry  any  other  person  during  the 
life  of  the  other  party. 

[Add  further  provisions  relating  to  alimony  and  custody 
of  children.'] 

§  765.  Decree  of  nullity. —  The  decree  of  nullity  is  simi- 
lar in  form  to  the  decree  of  divorce,  and  should  contain  ap- 
propriate findings,  and  state  the  cause  of  annulmeht. 

[Title  of  eaiise.] 

This  cause  came  on  to  be  heard'  on  this day  of , 


VM  FOEMS  OF  PLEADINGS  AND  DECEEES.       [§  166. 

18 — ,  upon  the  petition,  answer  and  reply,  and  the  evidence 
submitted  by  both  parties  in  open  court ;  on  consideration 
whereof  the  court  finds  that  the  plaintiff  has  been  a  resident 

of  the  state  of for years  before  the  filing  of  her 

petition  herein ;  that  the  parties  were  married  as  alleged  in 
said  petition ;  that  at  the  time  of  said  marriage  the  defend- 
ant had  a  wife  living,  and  not  divorced  from  said  defendant. 

The  court  further  finds  that  the  marriage  of  the  parties 
in  this  action  was  contracted  in  good  faith,  and  in  the  belief 
that  the  former  wife  was  dead. 

It  is  therefore  ordered,  adjudged  and  decreed  that  the 
marriage  contract  between  said  parties  be  and  the  same  is 
hereby  declared  null  and  void,  and  of  no  force  and  effect ; 
and  the  same  is  hereby  set  aside  and  annulled,  and  the  said 
parties  released  from  the  obligations  of  the  same. 

And  it  is  further  decreed  that  the  issue  of  said  marriage, 
to  wit, ,  born  or  begotten  before  the  commence- 
ment of  the  action,  are  hereby  declared  legitimate,  and  en- 
titled to  succeed  to  the  real  and  personal  estate  of  their 
mother, ■ ,  the  plaintiff  herein,  as  legitimate  chil- 
dren. 

And  it  is  further  ordered  [provision  restoring  wife's  prop- 
erty]. 

§  766.  Decree  for  permanent  alimony. —  The  decree  for 
permanent  alimony  may  be  entered  as  a  part  of  the  decree 
granting  divorce  or  separately.  The  foUowmg  form  may 
be  added  as  a  part  of  the  decree  of  divorce : 

It  is  furthered  ordered  that  the  defendant  pay  to  the  clerk 
of  the  court  for  the  use  of  the  plaintiff  the  sum  of dol- 
lars on  the  1st  day  of  — ■ — ,  18 — ,  and  on  the  1st  day  of , 

18 —  [semi-annually  or  quarterly],  for  the  support  and  main- 
tenance of  the  said  plaintiff  during  her  natural  life  or  until 
she  shall  again  marry ;  such  sums  not  to  be  in  lieu  of  her 
right  of  dower  in  the  defendant's  real  estate  or  in  lieu  of 
her  interest  in  the  personal  estate  of  said  defendant  in  case 
of  his  death  intestate. 

It  is  further  ordered  that  the  defendant  give  security  to 
the  clerk  of  this  court,  to  be  approved  by  said  clerk  [or,  by 
this  court],  for  the  payment  of  said  alimony,  and  the  said 
allowance  for  the  support  of  said  chOdren. 

It  is  further  ordered  that  in  case  the  defendant  fails  to 
make  the  said  payments  as  provided  herein,  the  clerk  of 
said  court  may,  upon  the  request  of  the  plaintiff,  issue  exe- 
cution for  the  collection  of  payments  then  due. 


§  166.1  FOEMS  OF  PLEADINGS  AND  DEOEEES.  727 

And  it  is  further  ordered  that  in  case  of  a  change  in  the 
circumstances  of  either  of  the  parties  to  this  action,  either 
•of  them  may  apply  to  this  court  for  such  modification  of  this 
decree  as  may  seem  just  and  equitable. 

The  following  form  may  be  used  where  the  permanent 
alimony  is  declared  to  be  a  lien  upon  real  estate  and  execu- 
tion awarded : 

"And  it  is  further  ordered,  adjudged  and  decreed  that 
defendant  pay  to  plaintiff's  attorney  the  sum  of  $100  as 
counsel  fees  of  plaintiff  in  this  action;  and  that  the  said 
defendant  pay  to  the  clerk  of  this  court,  for  the  use  of  the 
plaintiff,  as  plaintiff's  costs  in  this  action  taken,  the  sum  of 
■$28.05 ;  and  that  the  said  defendant  pay  to  said  plaintiff  the 
sum  of  $1,600  in  full  for  all  future  ahmony  for  the  support 
of  herself  and  her  two  minor  children ;  and  that  said  sum  to 
be  paid,  amounting  in  the  aggregate  to  the  sum  of  $1,628.05, 
be  and  the  same  is  hereby  declared  a  lien  on  the  following 
described  real  property  which  is  hereby  declared  to  belong 
to  the  defendant:  [description  of  property.'}  That  all  ot 
said  sums  may  be  paid  to  the  parties  entitled  thereto,  or  to 
the  clerk  of  this  court  for  their  use,  and  if  the  same  be  not 
paid,  and  the  receipts  therefor  filed  with  the  said  clerk 
Nvithin  twenty  days  from  the  date  of  this  decree,  execution 
or  order  of  sale  of  the  said  property  may  issue  thereon,  on 
demand  of  the  plaintiff,  under  which  execution  or  order  of 
sale  the  said  real  property,  or  so  much  thereof  as  will  satisfy 
plaintiff's  demand,  to  wit,  $1,628,05,  may  be  sold  in  the 
manner  prescribed  by  law  for  the  sale  of  real  property 
under  execution." ' 

The  decree  for  permanent  alimony  may  be  secured  by 
bond  or  mortgage  upon  real  estate.  In  the  following  decree 
the  securities  are  to  be  deposited  with  trustees : 

"  It  is  further  adjudged  that  the  plaintiff  forthwith  pay 
to  the  attorney  for  the  defendant,  for  her  as  alimony,  $2,100, 
•and  to  her,  as  further  alimony,  the  further  sum  of  $200,  on 
the  1st  day  of  January,  1885,  and  the  further  sum  of  $400 
on  the  1st  day  of  July,  1885,  and  the  like  sum  of  $400  on 
the  first  day  of  each  and  every  six  months  from  said  1st  day 
of  July,  1885. 

1  This  decree  was  held  valid  in  ney's  fee  was  payable  to  the  attor- 
Eobinson  v.  Eobinson,  79  CaL  511;  ney  instead  of  to  the  clerk  for  the 
but  irregular  because  the  attor-    use  of  the  wife. 


72S  FOEMS    OF   PLEADINGS   AND   DEOEEES.  [§  767... 

"  It  is  further  adjudged  that,  to  secure  the  payment  of 
said  serai-annual  allowance  of  alimony  of  $iOO,  Geo.  Jess  & 
Co.,  bankers  of  "Waupun,  Wis.,  are  hereby  constituted  and' 
appointed  trustees,  to  take  hold  of  the  following  securities^ 
to  wit :  The  plaintiff  shall  forthwith  execute  to  said  Geo. 
Jess  &  Co.  a  mortgage  in  trust  on  his  homestead  in  the  city 
of  "Waupun,  "Wis.,  and  shall  forthwith  deposit  with  them,  and. 
keep  on  deposit  with  them,  for  the  same  purpose,  at  least 
$6,000,  face  value,  of  good  notes  secured  bj^  good  real-estate- 
mortgages."  ^ 

This  form  of  security  will  not  be  preferred  to  the  decree- 
which  is  declared  a  lien  upon  real  estate,  for,  in  case  of  a 
failure  to  pay  the  alimony  as  it  becomes  due,  execution  may 
be  awarded ;  while  in  the  case  of  alimony  secured  by  mort- 
gage, the  wife  may  be  compelled  to  foreclose  her  securities. 

§  767.  Decree  awarding  custody  of  children  and  use  of 
homestead. — -  The  following  decree  was  entered  by  the  su- 
preme court  of  Colorado  in  a  contested  case,  and  may  be  use- 
ful in  similar  cases :  ^ 

"  It  is  now  ordered,  adjudged  and  decreed  by  the  court 
that  the  defendant,  Marion  A.  Luthe,  shall,  until  further 
order  of  the  court,  retain  the  custody  and  control  of  the- 
said  children  of  the  parties  hereto,  during-  their  njinority,  to 
support,  care  for  and  educate  them  to  the  best  advantage- 
the  condition  and  circumstances  of  the  plaintiff  and  defend- 
ant will  allow. 

"  That  for  this  purpose  defendant  shall  have  the  possession 
of  lot  25  and  south  half  of  lot  26,  block  150,  Adea's  addition, 
to  the  city  of  Denver,  Arapahbe  county,  and  state  of  Colo- 
rado, and  the  improvements  thereon/to  hold,  occupy  and 
enjoy  the  same,  together  with  the  issues,  rents  and  profits, 
thereof^  without  let,  hindrance  or  interference  in  any  man- 
ner on  the  part  of  the  plaintiff.  That  plaintiff  shall  keep 
the  dwelling-nouse  situate  on  said  premises  well  insured  at 
his  own  expense,  in  some  fire  insurance  company  of  good 
repute  for  financial  responsibility.  He  shall  pay  the  taxes 
thereon,  and  shall  keep  the  interest  paid  up  on  the  incum- 
brance of  $3,800  on  said  premises. 

"  And  further,  plaintiff  shall  pay  or  cause  to  be  paid  to» 
defendant,  within  sixty  days  from  the  entry  of  this  modi- 

iMaxweU  v.  Sawyer  (Wis.),  63  2  Luthe -y.  Luthe,  13  Colo.  421,  2  li 
N.  W.  383.  P.  467. 


§  767.]       FOEMS  OF  PLEADINGS  AND  DEOEEES.  739' 

fied  decree,  tlie  sum  of  $260  on  account  of  the  furniture 
taken  by  him  from  said  defendant;  and  plaintiff  shall  also 
pay  or  cause  to  be  paid  to  the  defendant,  on  or  before  the 
15th  day  of  December  of  each  and  every  year,  the  sum  of 
$50  for  herself,  and  the  suni  of  $25  on  account  of  each  of 
said  minor  children  then  remaining  in  her  custody  and  con- 
trol as  aforesaid. 

"  In  case  the  plaintiff  shall  fail  at  any  time  to  pay  to  de- 
fendant any  of  the  sums  of  money  hereinbefore  specified,  or 
any  part  thereof,  when  the  same  shall  become  due  and  pay- 
able, the  amount  so  remaining  unpaid  shall  constitute  a  lien 
in  favor  of  defendant  against  plaintiff's  undivided  half  in- 
terest in  said  lot  25,  and  south  half  of  lot  26,  aforesaid,  and 
the  same  may  be  foreclosed  by  proper  civil  action.^ 

"  Defendant  may  also  at  any  time  have  execution,  garnish- 
ment or  other  proper  proceedings  against  plaintiff  for  any 
such  sum  or  sums  of  money,  or  any  part  thereof,  remaining 
due  and  unpaid  according  to  the  terms  of  this  decree. 

"  In  case  the  plaintiff  shall  fail  to  keep  said  dwelling-house 
insured  as  aforesaid,  and  any  loss  shall  thereby  befall  said 
-estate,  such  loss  shall  be  a  lien  against  his  interest  in  said 
premises,  and  in  favor  of  the  defendant,  and  the  amount  of 
said  lien  may  be  established  by  a  proper  civil  action,  and 
foreclosed  accordingly. 

"  If  plaintiff  shall  suffer  said  premises,  or  any  part  thereof, 
to  be  sold  for  taxes  or  for  default  in  payment  of  said  incum- 
brance of  $3,800,  or  any  part  thereof,  or  any  interest  thereon, 
the  loss  or  sacrifice  on  account  of  such  sale  or  sales  shall,  as 
between  the  parties  hereto,  be  borne  wholly  by  the  said 
plaintiff;  and  the  defendant  may  become  the  purchaser  at 
such  sale  or  sales,  or  may  redeem  or  repurchase  said  prem- 
ises, or  any  part  thereof,  from  such  sale  or  sales,  for  the 
benefit  of  her  individual  or  separate  estate,  the  same  a& 
though  she  were  not  a  tenant  in  common  with  plaintiff. 

"The  plaintiff  may  renew  said  incumbrance  from  time  ta 
time,  as  may  be  necessary,  but  not  for  a  greater  sum  than 
$3,800,  nor  at  a  rate  of  interest  greater  than  ten  per  cent, 
per  annum;  and  defendant  shall  joiain  the  execution  of  any 
necessary  securities  thereof;  and  plaintiff  shall  not  in  any 
manner  interfere  with  defendant's  enjoyment  of  said  prem- 
ises, or  any  part  thereof,  for  the  purposes  aforesaid,  until  the 
further  order  of  the  court. 

"  If  plaintiff  shall  faithfully  perform  the  matters  required 
of  hini  by  this  decree  while  said  defendant  shall  have  the 
custody  of  said  children  as  aforesaid,  his  undivided  half  inter- 

1  Luth^  V.  Luthe,  13  Colo.  431,  31  P.  467. 


"730  FORMS    OF   PLEADINGS   AND   DECBEES.  [§  768. 

est  in  said  premises  shall  not  be  deemed  to  be  otherwise 
■affected  hereby,  and  the  same  shall  be  preserved  for  his  ulti- 
mate use  and  enjoyment;  provided,  nevertheless,  that,  if 
plaintiff  shall  elect  so  to  do,  he  may  convey  to  defendant  by 
good  and  sufficient  warranty  deed,  subject  only  to  the  in- 
cumbrance and  hens  hereinbefore  mentioned,  aU  his  right, 
-title  and  interest  in  and  to  the  premises  above  described,  so 
that  defendant  shall  become  the  absolute  owner  of  the 
whole  thereof,  subject  only  to  said  liens  and  incumbrance, 
with  full  authority  to  use,  sell,  convey,  lease  or  incumber 
the  same,  as  she  shall  deem  for  the  best  interest  of  herself 
and  said  minor  children ;  and  upon  the  execution  and  de- 
livery of  the  conveyance  aforesaid  within  twenty  days  from 
the  entering  of  this  decree,  plaintiff  shall  be  and  stand  re- 
lieved from  each  and  every  of  the  commands,  directions  and 
requirements  hereinbefore  expressed,  touching  the  payment 
of  interest,  insurance,  taxes  and  other  allowances  on  account 
of  alimony  and  maintenance  for  said  defendant,  remaining 
■subject  only  to  such  obligations  as  may  thereafter  be  de- 
volved upon  him  in  respect  to  his  surviving  children  during 
the  minority,  in  case  of  necessity  or  of  a  substantial  change 
in  the  condition  or  circumstances  of  the  parties  thereto. 

"  This  decree  shall  stand  in  lieu  of  all  former  decrees  as 
to  the  custody  of  the  children,  use  of  realty,  recovery  of 
personalty  and  alimony,  and  maintenance  for  defendant  and 
said  children.  The  former  decree  of  this  court,  in  reference 
to  visits  to  and  by  the  children,  and  the  conduct  of  the  par- 
ents in  thejLr  intercourse  with  the  children,  shall  be  and  re- 
main in  full  force  and  effect,  and  shall  be  enforced  by  the 
oourt  when  either  party  shall,  upon  proper  notice  to  the 
other,  show  that  there  has  been  a  violation  thereof.  This 
decree  may  be  further  modified  by  the  court  upon  due  no- 
tice to  the  parties  and  opportunity  to  be  heard,  as  the  con- 
dition or  circumstances  oi  the  parties  may  change,  or  as  the 
best  interests  of  the  children  may  require." 

§  768.  Decree  restraining  sale  of  property  and  restor- 
ing wife's  property  and  awarding  use  of  homestead. — 

After  the  usual  decree  of  divorce,  the  following  provision 
may  be  added  to  the  decree  where  the  wife  prayed  for  the 
return  of  her  property,  the  use  of  the  homestead  and  a  per- 
petual injunction  against  judgments  against  the  husband 
alleged  to  be  fraudulent : 

"  And  it  is  further  ordered  and  adjudged : 

"  That  the  said  judgments,  rendered  as  aforesaid  in  the 


§  768.]       FOEMS  OF  PLEADINGS  AND  DECREES,  T31 

district  court  of , ,  in  favor  of  said  J.  B.  and  J.  U., 

be  and  they_  are  hereby  declared  to  be  fraudulent  and  void. 

"That  said  executions  and  levies  constitute  no  lien  on 
said  premises;  that  said  H.  B.,  J.  B.  and  J.  U.  be  and  they 
are  hereby  enjoined  and  restrained  from  collecting  or  at- 
tempting to  collect  said  judgments,  or  from  selling  or  at- 
tempting to  sell  said  premises  or  any  part  thereof,  or  from 
mortgaging  or  in  any  way  incumbering  said  property  or 
any  part  thereof,  without  the  assent  of  said  plaintiff  A.B. 

"  That  said  plaintiff  has  the  right,  conjointly  with  said 
■defendant  H.  B.,  to  the  possession  and  occupancy  of  the  fol- 
lowing premises  heretofore  occupied  as  a  homestead  by  the 
plaintiff  and  defendant,  to  wit :  [description  of  property^ 

"  That  plaintiff  have  the  issues,  rents  and  profits  of  the 
following  described  premises,  and  that  she  have  the  right  to 
rent  and  control  the  same :  [description  of  property.'] 

"  That  the  defendant  H.  B.  return  to  the  plaintiff,  and  that 
she  have  as  her  separate  and  absolute  property,  aU  the  house- 
hold goods  in  the  house  of  said  homestead  or  belonging 
thereto.     [Description  of  personal  property  .^ 

"  That  said  defendants,  H.  B.,  J.  B.  and  J.  U.,  be,  and  they 
are  hereby,  enjoined  and  restrained  from  in  any  way  inter- 
fering with  said  plaintiff  in  the  peaceable  possession  of  the 
said  homestead  premises,  to  wit:  [description  of  property'], 
or  in  renting,  controlling  or  receiving  the  issues,  rents  and 
profits  of  the  said  property. 

"  That  plaintiff  have  and  recover  of  and  from  defendant 
H.  B.  the  sum  of  $50  as  her  reasonable  attorneys'  fees 
herein,  and  that  defendant  H.  B.  pay  the  costs  of  this  ac- 
tion, taxed '($87.60)."  > 

1  Affirmed  in  Busenbark  v.  Biisenbark,  33  K^n.  573. 


EVIDENCE. 


774  In  general. 

775.  Default. 

776.  Depositions. 

777.  Proof  of  marriage. 

778.  Husband  and  wife  as  wit- 

nessefs. 

779.  Necessity  of  corroborating 

testimony  of  a  party. 

780.  What  corroboration  is  suffi- 

cient. 

781.  Confessions  and  admissions. 


782.  Privileged  communications 

between  husband  and 
wife. 

783.  Privileged  communications- 

to  physicians  and  attor- 
neys. 

784  Testimony  of  children  of 
the  parties. 

785.  Relatives  and  servants  as 
witnesses. 


§  774.  In  general. —  The  suit  for  divorce  is  sui  generis} 
It  is  not  a  proceeding  to  punish  crime,^  but  is  a  special  pro- 
ceeding in  a  court  of  equity,  and  therefore  conforms  to  the 
chancery  practice  except  in  certain  instances  which  are 
noted  in  this  treatise  in  the  treatment  of  various  subjects. 
As  it  is  a  civil  suit  it  is  not  governed  by  the  rules  of  criminal 
procedure,  and  the  matrimonial  offense  alleged  as  a  cause 
for  divorce  need  not  be  proved  beyond  a  reasonable  doubt.  ^ 

It  is  not  necessary  to  repeat  here  the  rules  of  evidence 
with  reference  to  each  cause  for  divorce,  and  each  of  the  de- 
fenses to  the  suit  for  divorce.  A  reference  to  the  sections 
in  which  the  evidence  of  each  cause  for  divorce  has  been 
noticed  may  be  appropriate  here.* 


1  See  authorities  cited  in  §  4 

2§6. 

3  Thus,  adultery  is  both  a  cause 
for  divorce  and  a  statutory  crime, 
but  adultery  need  not  be  proved 
beyond  a  reasonable  doubt.  See 
Adultery,  §  142.  For  sufficiency 
of  evidence  of  adultery,  see  §  140. 


That  circumstances  must  be  in- 
compatible with  innocence,  see 
§  141.  Whether  the  fact  of  adul- 
tery must  be  a  necessary  conclusion 
from  the  evidence,  §  143.  Proof  of 
intent,  see  §§  163-176. 

*  Desertion,    §§    102-110.     Adul- 
tery, §§  140-162.    Evidence  of  in- 


§  T75.]  EVIDENCE.  733 

In  suits  for  divorce  the  court  may  vary  the  order  of  the 
iutroductiou  of  the  testimony,  and  rulings  in  this  regard  will 
not  be  held  erroneous  unless  there  has  been  an  abuse  of  dis- 
<;retion  manifestl^^  prejudicial  to  the  complaining  party.  The  , 
following  is  suggested  as  the  convenient  and  logical  order 
of  the  evidence  in  the  suit  for  divorce,  as  it  follows  in  the 
order  of  the  usual  allegations  of  the  petition : 

1.  Proof  of  the  required  residence  in  the  state.^ 

2.  Proof  of  marriage  of  the  parties.^ 
S.  Proof  of  the  cause  for  divorce.' 

4.  Proof  of  the  allegations  concerning  alimony  and  divis- 
ion of  the  property  and  the  custody  of  the  children.^  In  a 
contested  suit  for  divorce  questions  relating  to  alimony  can- 
not be  tried  with  the  issues  relating  to  the  causes  for  divorce 
without  confusion,  especially  where  there  is  a  trial  by  jury. 
In  such  cases  the  court  may  hear  the  evidence  relating  to 
the  cause  for  divorce,  and  a  decree  of  divorce  may  be  entered 
reserving  the  question  of  alimony  for  further  consideration. 

§  775.  Default. —  When  a  case  is  heard  upon  default  the 
court  should  protect  the  interest  of  the  pubHc  and  of  the 
■defendant  by  requiring  strict  proof,  not  only  of  the  cause 
for  divorce,  but  of  aU  facts  required  by  the  statute,  such  as 
residence,  good  faith  and  the  good  conduct  of  the  complain- 
ant.' The  fact  that  the  defendant  has  not  appeared  or  an- 
swered does  not  supersede  the  necessity  of  proof  of  every 
fact  necessary  to  entitle  the  plaintiff  to  the  relief  demanded." 

tent,    §§    163-176.     Witnesses    in  Permanent    alimony,   §§    900-917. 

adultery  oases,  §§  190, 301.   Cruelty,  Custody  and  support  of  children, 

§§  338-343.   Habitual  drunkenness,  §§  975-985. 

§358.    Recrimination,  §  443.     Con-  5  Reed  v.  Eeed,  39  Mo.  Ap.  473; 

donation,  §§  463-468.    Connivance,  Suesemiloh  v.  Suesemilch,  43  111. 

§§  488,  489.    Collusion,  §  510.    Pre-  Ap.  593. 

sumptions  in  favor  of  marriage,  ephelan  v.  Phelan,  13  Fla.  449; 

§  580.  Barry  v.  Barry,  1  Hopkins  Ch.  118; 

iPor  proof  of  residence  or  domi-  Scott  v.  Scott,  17  Ind.  309;  Robin- 

■cile,  see  Domicile,  §§  40^8.  son  v.  Robinson,  16  Mich.  79;  Hanks 

2  See  §777.  '"■  Hanks,  3  Edw.  Ch.  469;  Latham 

3  See  references  swpm.  v.  Latham,  SO  Gratt.  307;    Palmer 
-i  Temporary  alimony,  §§  850-863.  v.  Palmer,  1  Paige,  276;  Lewis  v. 


Y34  EVIDENCE.  [§  775- 

The  decree  by  default  need  not  recite  that  a  hearing  was 
had  or  that  the  evidence  was  sufficient.^  The  court  should 
be  satisfied  before  hearing  the  proofs  that  it  has  jurisdiction 
to  render  a  decree.  Care  in  this  respect  may  prevent  many 
of  the  complications  that  disturb  titles  and  render  second 
marriages  void.^  The  default  should  be  set  aside  in  all  cases 
where  there  is  any  showing  of  a  defense,  although  the  de- 
fendant may  have  been  guilty  of  laches  that  might  pre- 
clude her  in  ordinary  cases.'  The  court  has  a  wide  discretion 
in  actions  for  divorce,  and  will  exercise  its  power  in  setting 
aside  a  default  in  any  case  where  it  is  probable  that  the  de- 
cree should  be  modified  or  vacated.*  In  California  it  is  held 
that  no  showing  of  a  defense  need  be  made.^  But  it  seems 
absurd  that  a  court  should  act  in  the  matter  unless  the  ne- 
cessity of  a  new  trial  is  made  to  appear.^  If  a  showing  is 
made  the  issue  should  be  tried,  for  the  law  favors  trials 
upon  the  merits,  especially  in  divorce  suits,  where  the  inter- 
ests of  the  state  demand  that  aU  the  facts  be  adduced,  and 
that  no  divorce  be  granted  except  for  adequate  causes  and 
where  no  valid  defenses  exist.'  Where  such  showing  is 
made  or  an  answer  tendered,  it  is  manifest  that  a  hearing 
should  be  granted,  and  that  the  merits  of  the  aipplication 
should  not  be  determined  by  counter-affidavits.'  When  the 
default  is  set  aside  the  case  is  tried  in  the  usual  manner.* 
The  fact  that  plaintiff  has  married  after  the  decree  was 
entered  will  not  deprive  the  defendant  from  having  the  de- 
Lewis,  9  Ind.  105;  Welch  v.  Welch,  5  McBlain  v.  McBlain,  77  CaL  507,. 
16  Ark.  527;  Montgomery  ju.  Mont-  20  P.  61;  Wadsworth  v.  Wads- 
gomery,  3  Barb.  Ch.  132.    '  worth,  81  Cal.  182,  22  P.  648;   Cot- 

1  Young  u  Young  (Tex.  Civ.  Ap.),    treU  v.  Cottrell,  83  Cal.  457,  23  P. 
23  S.  W.  83.  581. 

-'See    Pinckney  v.  Pinckney,   4        6 Blank  w.  Blank,  107  N.  Y.  91,  13 
la.  324.  N.  E.  615. 

3 Smith   V.  Smith,  20    Mo.   166;        'See  contra,  Savage  v.  Savage,. 
Brown -y.  Brown,  59  IlL  315;  Bowan    10  Or.  331. 

V.  Bowan,  64'  111.  75;  Mumford  v.  SThelin  v.  Thelin,  8  111.  Ap.  421. 
Mumf ord,  13  R.  L  19.  »  Chase  v.  Chase,  19  N.  Y.  Supp.. 

*  Simpkins  v.  Simpkins,  14  Mont.    269. 
386,  36  P.  759. 


§§  YY6, 117.']  EVIDENCE.  735 

fault  set  aside.^  Where  the  wife  enters  an  appearance  and 
moves  to  set  aside  the  default  because  the  return  of  the 
sheriff  is  false  and  she  had  no  notice  of  the  suit,  and  tenders 
an  answer  to  the  plaiintiff's  petition,  the  default  will  be  set 
aside  after  a  period  of  six  months,  although  the  statute  pro 
vides  that  the  court  has  control  over  its  decrees  of  divorce 
for  six  months  after  entry.-  In  some  states  the  courts  are 
prevented  by  statute  from  vacating  decrees  of  divorce  after 
the  term  in  which  they  are  rendered.' 

/§776.  Depositions. —  Unless  there  is  some  provision  of 
the  statute  to  the  contrary,  depositions  are  admissible  as  in 
other  cases.  The  right  to  introduce  such  testimony  is  con- 
ferred by  statute,  and  does  not  exist  at  common  law.  The 
general  provision  of  the  statute  authorizing  and  regulating' 
the  taking  of  depositions  in  all  civil  cases  is  broad  enough 
to  include  suits  for  divorce.^  The  rules  of  the  chancery 
practice  are  followed  in  som6  states.'  The  reports  do  not 
throw  much  light  upon  the  method  of  taking  depositions,, 
and  the  practitioner  must  consult  the  statutes  of  his  own 
state  and  local  rules  of  practice.    / 

§  777.  Proof  of  marriage. — In  every  action  for  divorce 
the  marriage  must  be  proved.  If  there  was  no  marriage, 
there  can  be  no  breach  of  marital  duties,  and  no  relation  t* 
suspend  or  dissolve.  To  some  extent  a  decree  of  divorce 
affirms  the  marriage  and  then  decrees  that  such  relation  is- 
dissolved.  Such  decree  is  in  some  instances  competent  evi- 
dence of  the  marriage."  Where  there  is  a  valid  prior  mar- 
riage undissolved,  the  fact  that  one  party  to  a  subsequent 
marriage  has  obtained  a  decree  of  divorce  wiU  in  no  way 

■Scripture  v.  Scripture,  70  Hun,  *Lattier  u  Lattier,  5  Ohio,  538 r 

432,24  N.  Y.  Supp.  301;  Simpkins  Anonymous,  1  Yeates,  404;  Page 

u.  Simpkins,  14  Mont.  386,  36  P.  759.  v.  Page,  51  Mich.  88;   Looker  v. 

2  Locke  V.  Locke  (R  L),  30  A.  422.  Looker,  46  Mich.  68. 

5  See  on  this  point  cases  cited  in  5  gee  authorities  cited  in  Flavell 

§    1050.     When    default    vacated  v.  Flavell,  20  N.  J.  Eq.  211. 

where  the  service  is  constructive,  eHolbrook    v.    S.,   34  Ark.    511  ^ 

see  §  835.    When  decree  vacated  Moore  v.  Hegeman,  92  N.  Y.  521. 
on  account  of  fraud,  g§  1050-1057. 


•736  EVIDENCE.       '  [§  777. 

affect  the  validity  of  the  second  marriage.'  The  party  to 
the  first  marriage  is  not  bound  by  a  decree  of  divorce  dis- 
solving the  subsequent  marriage,  and  no  inference  should 
•be  drawn  from  such  decree.  The  admission  of  the  parties 
that  they  are  husband  and  wife  is  not  sufficient  proof  of 
the  marriage.^  Bat  where  there  is  such  admission  in  the 
pleadings,  mere  proof  of  long  cohabitation  and  repute  is 
sufficient.'  If  the  marriage  is  denied,  the  issue  thus  raised 
should  be  first  determined  before  any  evidence  is  heard 
tending  to  prove  a  .cause  for  divorce.  If  there  is  no  mar- 
riage the  action  may  be  dismissed.*  But  the  interest  of  the 
state  requires  that  the  alleged  marriage  be  declared  null  in 
the  same  action.  Generally,  when  the  marriage  is  denied, 
the  defendant  asks  for  such  relief.'  A  marriage  is  presumed 
valid  if  it  is  shown  to  have  been  duly  solemnized  and  con- 
summated.' If  the  validity  of  a  marriage  is  affected  by  a 
■decree  of  divorce,  such  decree  must  be  proved  by,  the  party 
alleging  it.'' 

The  marriage  may  be  established  in  actions  for  divorce  as 
in  other  actions.  It  may  be  proved  by  witnesses  who  were  ■ 
present  when  the  marriage  took  place,  and  who  testify  that 
the  marriage  was  celebrated  according  to  the  usual  form, 
although  they  cannot  state  the  words  used.'  The  testimony 
of  eye-witnesses  is  sometimes  regarded  as  the  best  evidence, 
and  admissible  without  proof  that  other  evidence  cannot  be 
produced.^    In  some  states  the  marriage  may  be  established 

1  Williams  v.  Williams,  46  Wis.  Davis  v.  Davis,  1  Abb.  N.  C.  (N.  Y.) 
464;  Williams  v.  Williams,  63  Wis.  140;  Blinks  v.  Blinks,  5  Misc.  Eep. 
-58;  Pearce  v.  Pearce  (Ky.),  16  S.  W.     193,  35  N.  Y.  Supp.  768. 

271.  SFinnu  Finn,  63How.  Pr.  83. 

2  Schmidt  v.  Schmidt,  29  N.  J.        « Harris  v.  Harris,  8  111.  Ap.  57. 
Eq.  496;  Williams  v.  Williams,  8        '  Donahue  u.  Donahue,  17  111.  Ap. 
Me.  135;  Zule  v.  Zule,  1  N.  J.  Eq.  578;  Dare  v.  Dare  (N.  J.),  27  A.  654. 
96.   See,  contra,  Fox  v.  Fox,  25Cal.        SKope  v.  P.,  43  Mich.  41;  P.  v. 
.587;  Harman  v.  Harman,  16  111.  85.  Calder,  30  Mich.  85;  Fleming  v.  P., 

3  Morris  v.  Morris,  20  Ala.  168.  27  N.  Y.  329;  Lord  v.  S.,  17  Neb. 
*  Mangue  v.  Mangue,  1  Mass.  240;    536;  McQuade  v.  Hatch,  65  Vt.  482. 

Simons  v.  Simons,    13    Tex.   468;        9  Chew  v.  S.  (Tex.),  5  S.  W.  373; 


§  777.]  EVIDENCE.  737 

by  the  testimony  of  one  of  the  spouses.*  Marriage  certifi- 
cates are  admissible  if  proved  to  have  been  kept  in  proper 
custody  or  by  the  person  asserting  the  marriage.''  It  isi 
admissible  without  proof  of  its  genuineness  or  the  official 
capacity  of  the  person  who  performed  the  ceremony.'  The 
contents  of  the  certificate,  if  lost,  may  be  proved  by  a  wit- 
ness who  can  state  in  substance  what  it  contained.*  Before 
a  certified  copy  of  a  marriage  record  is  admissible  it, must 
appear  that  such  record  was  required  to  be  kept  by  some 
officer  pursuant  to  some  statute.'  When  the  marriage  is  to 
be  proved  by  a  certificate  of  a  justice  of  the  peace  of  an- 
other state,  it  must  be  established  by  other  evidence  that 
the  signature  is  genuine,  and  that  he  had  authority  to  sol- 
emnize marriage  at  the  time  and  place.^  A  marriage  may 
be  proved  by  the  original  license  if  issued  by  proper  author- 
ity, and  by  the  indorsement  of  the  officer  that  he  performed 
the  ceremony  at  a  certain  time  and  place,  together  with 
satisfactory  evidence  that  the  parties  cohabited  as  man  and 
wife,  and  were  reputed  to  be  such.''  The  identity  of  the 
parties  with  those  named  in  the  record  will  be  presumed 
from  the  identity  of  name.^  In  actions  for  divorce  the  mar- 
riage may  be  proved  by  cohabitation  and  repute '  or  by 

S.  V.  Marvin,  35  3Sr.  H.  22;  Warner  risey  v.  Wiggins  Ferry  Co.,  47  Mo. 

V.  Com.,  2  Va.  Cases,  95;  Baugh-  521 ;  Hutchins  v.  Kimmell,  31  Mich, 

man  V.  Baughman,  29  Kan.  283.  126;  Niles  v.  Sprague,  13  la.  198; 

1  Miles  V.  United  States,  103  U.  S.  Succession  of  Taylor,  15  La.  An. 
304;  Van  Tuyl  v.  Van  Tuyl,  57  313;  Stanglein  v.  8.,  17  O.  St.  453; 
Barb.  235;  Woodrich  v.  Freeman,  Bradford  v.  Bradford,  51  N.  Y.  669; 
71  N.  Y.  601;  Brown  v.  Brown,  143  Abbott  v.  Abbott,  4  Swab.  &T.  254; 
IlL  409;  P.  V.  Bartholf,  34  Hun,  273;  Degnan  v.  Degnan,  17  N.  Y.  Supp. 
S.  V.  Bowe,  61  Me.  171.  883;  Verhalf  v.  Houwenlengen,  21 

2  Gaines  v.  Green  Pond  Iron  Co.,  la-  439. 

33  N.  J.  Eq.  86;  Gaines  v.  Relf,  13        ^S.  v.  Horn,  43  Vt.  30. 

How.  (U.  S.)  472.  '  Glaser  v.  Dambman  (Md.),  32 

3  Camden    v.    Belgrade,   78    Me.    A.  523. 

304,  3  A.  653.  See  contra,  Com.  v.  8  Jackson  v.  King,  5  Cow.  337. 
Morris,  1  Cash.  391.  See  contra,  Wedgwood's  Case,  8 

*  Camden  v.  Belgrade,  78  Me.  204,    Greenl.  75. 

3  A.  653.  "  Bowman  v.  Bowman,  24  IlL  Ap. 

*  Tucker  v.  P.,  123  IIL  588;  Mor-    165;  Whits  v.  White,  83  CaL  427, 

47 


738  "  EVIDENCE.  [§  Y78. 

other  circumstantial  evidence.^  But  the  presumption  which 
arises  from  cohabitation  and  repute  may  be  overcome  by 
any  competent  evidence.^  It  may  be  shown  that  such  co- 
habitation was  of  meretricious  origin,  and  then  a  marria,ge 
will  not  be  presumed.'  The  fact  of  marriage  may  be  proven 
by  a  marriage  contract  purporting  to  have  been  signed  by 
the  parties.* 

§  778.  Husband  and  wife  as  witnesses. —  Under  the  com- 
mon law  neither  husband  nor  wife  could  be  witnesses  in  a 
suit  for  divorce,  because  they  were  both  parties  and  inter- 
ested in  the  event  of  the  suit ;  and  also  because  they  could 
not  testify  for  or  against  each  other.  And  at  the  present 
time  both  parties  are  incompetent  as  witnesses,  unless  the 
statutes  permit  them  to  testify.*  The  fact  that  the  statute 
confers  the  right  to  obtain  a  divorce  for  certain  causes  does 
not  necessarily  make  the  parties  competent  witnesses.*  The 
reason  of  the  common  law  seems  to  have  been  that  the  hus- 
band and  wife  could  not  testify  for  each  other,  "  because 
their  interests  were  identical ; "  nor  against  each  other,  be- 
cause it  was  against  public  policy  to  allow  them  to  do  so  for 
fear  of  creating  dissent  and  distrust  between  them.    The 

23  P.  376;  Finn  v.  Finn,  13  Hun  v.  McDermott,  91  N.  Y.  451;  Both- 

(N.  Y.),  339;  Vreeland  v.  Vreeland,  ick  v.  Bothick,  45  La.  Ann.  1883, 

18  N.  J.  Eq.  43;  Houpt  v.  Houpt,  5  14  So.  293. 

O.  539;  Wright  v.  Wright,  6  Tex.        '  Hunt's  Appeal,  86  Pa.  294;  Har- 

3;  Mitchell  v.  Mitchell,  11  Vt.  184;  beck  v.  Harbeck,  103  N.   Y.  714, 

Hitchcox  V.  Hitchcox,  3  W.  Va.  affirming  31  Hun,  640;  Badger  v. 

435;  Trimble  v.  Trimble,  3  Ind.  76;  Badger,  88  N.  Y.  546;  Brinkley  v. 

Jones  V.  Jones,  48  Md.  891;  Barnum  Brinkley,  50  N.  Y.  184;  Van  Dusan 

V.  Barnum,  43  Md.  351;  Borton  v.  u  Van  Dusan,  97  Mich.  70;  Ahlberg 

Borton,  48  la.  697;  Kilburn  v.  Kil-  v.  Ahlberg,  34  N.  Y.  Supp.  919. 
burn,  89  Cal.  46,  36  P.  636;  Cross  v.        <  Bates  v.  Bates,  7  Misc.  Eep.  547 

Cross,  55  Mich.   280;    Clancey    v.  State  v.  Behrman  (N.  C),  19  S.  E. 

Clancey,6S  Mich.  303;  Peet  v.  Feet,  330;  Sharon  v.  Terry,  36  Fed.  337 

53  Mich.  464.  Sharon  v.  Sharon,  67  CaL  185;  S.  C, 

1  Hamilton,  In  re,  76  Hun,  200, 27  79  Cal.  633;  84  Cal.  424. 

N.  Y.  Supp.  813.  5  Anonymous,  58  Miss.  15;   Cor- 

2  Chamberlain  u  Chamberlain,  71    nish  v.  Cornish,  56  Tex.  564. 

N.  Y.  433;  Port  v.  Port,  70  III  484;        shyers  v.  Ayers,  28  Mo.  Ap.  97. 
Jones  V.  Jones,  45  Md.  144;  Haynes 


§  778.]  EVIDENCE.  739 

fact  that  the  parties  are  living  in  separation,  and  their 
mutual  confidence  has  already  been,  destroyed  by  other 
causes,  does  not  render  the  parties  competent  as  witnesses 
against  each  other.^  Although  it  would  seem  that,  where 
the  parties  are  thus  estranged,  the  reason  of  the  common- 
law  rule  would  not  obtain.  Generally  the  parties  are  made 
competent  witnesses. in  all  cases  by  some  general  statute  or 
provision  of  the  code.  These  general  provisions  may  be  so 
broad  as  to  include  actions  for  divorce.^  Where  the  statute 
permits  the  parties  to  testify  in  all  cases  except  in  any 
"  action  for  divorce  on  account  of  adultery,"  the  parties 
may  testify  in  a  suit  for  divorce  on  account  of  the  wife's  im- 
potence.' 

But  there  are  some  general  statutes  not  quite  broad  enough 
to  include  actions  for  divorce.  Thus  the  statute  in  the  Dis- 
trict of  Columbia  made  all  parties  and  interested  persons 
competent  to  testify,  and  provided  that :  "  Nothing  in  the 
preceding  section  shall  render  ...  a  husband  compe- 
tent or  compellable  to  give  evidence  for  or  against  his  wife, 
or  a  wife  competent  or  compellable  to  give  evidence  for  or 
against  her  husband,  in  any  criminal  proceeding,  or  in  any 
proceeding  instituted  in  consequence  of  adultery.  Nor  shall 
a  husband  be  compellable  to  disclose  any  communication 
made  to  him  by  his  wife  during  marriage ;  nor  shall  a  wife  be 
compellable  to  disclose  any  communication  made  to  her  by  her 
husband  during  marriage."  It  was  held  that  this,  if  taken 
literally,  would  make  the  parties  to  a  divorce  suit  competent 
to  testify,  but  the  subsequent  provisions  of  the  section  indi- 
cated a  contrary  intention.*  The  husband  and  wife  are  not 
rendered  competent  by  a  general  statute  permitting  persons  to 
testify,  although  "  interested  in  the  event  of  the  suit  as  par- 
ties or  otherwise,"  because  the  common-law  disqualification  of 
husband  and  wife  is  based  upon  other  considerations  than  in- 

1  Dwelly  V.  Dwelly,  46  Me.  377.  '  Barringer  v.  Barringer,  69  N.  C. 

2Stebbins   v.  Anthony,  5  Colo.  179. 

348;  Berlin  v.  Berlin,  52  Mo.  151;  <  Burdette  u  Burdette,  6  Mackey, 

Barrier  v.  Barrier,  58  Mo.  233.  469. 


740  EVIDENCE.  [§  778. 

terest  in  the  event.^  A  provision  that  the  husband  and  wife 
shall  not  be  incompetent  tb  testify  except  as  to  "  confiden- 
tial commuijications  between  them  "  is  not  clear  and  explicit 
enough  to  change  the  common  law  and  render  the  parties 
competent  witnesses  in  divorce  suits.''  The  fact  that  a  de- 
fendant may  be  required  to  answer  the  complaint  under 
oath  has  been  regarded  as  ground  for  excluding  the  testi- 
mony of  the  parties.^  Although  the  statute  may  permit  the 
parties  to  testify  as  in  other  cases,  this  will  not  permit  the 
wife  to  prove  non-access  of  her  husband.  The  incompetency 
of  such  evidence  rests  not  upon  the  marital  relation  alone,  but 
upon  the  ground  of  public  policy  and  morality.*  In  some 
states  the  party  is  not  competent  to  testify  in  actions  for 
divorce  on  account  of  adultery  except  to  prove  or  disprove 
the  marriaare  and  residence  within  the  state.' 

The  rule  excluding  the  testimony  of  the  parties  is  espe- 
cially harsh  and  dangerous  to  justice  in  suits  for  divorce,  be- 
cause it  prevents  the  defendant  from  explaining  the  circum- 
stances and  detailing  facts  which  would  otherwise  prevent 
a  decree.  Marital  wrongs  are,  in-  the  nature  of  the  -case, 
generally  committed  before  few  witnesses,  or  while  the  par- 
ties are  alone,  and  it  will  often  amount  to  a  denial  of  jus- 
tice if  the  parties  cannot  relate  their  version  of  the  affair. 
Modern  legislation  has,  to  some  extent,  remedied  this  defect 
in  the  law."    Although  the  statute  has  made  the  husband 

1  DweUy  v.  D welly,  46  Me.  377;  Haley  v.  Haley,  67  Cal.  24;  Kean  v. 
Spofford  V.  Spofford,  41  Tex.  Ill;  Kean,  7  D.  C.  4;  Shafto  v.  Shafto, 
Manchester  v.  Manchester,  24  Vt.    28  N.  J.  Eq.  34 

649;iCorson  v.  Corson,  44  N.  H.  587.        5  Doughty  v.  Doughty,  32  N.  J. 

2  Cornish  v.  Cornish,  56  Tex.  564.    Eq.  32;  Franz  v.  Franz,  33  N.  J.  Eq. 

3  Morse  v.  Morae,  25  Ind.  156.  483;  Wells  v.  Wells,  32  N.  J.  Eq.  4; 
*  Corson  v.  Corson,  44  N.  H.  587.    Marsh  v.  Marsh,  29  N.  J.  Eq.  196; 

See,  also,  statutes  not  permitting  Woolfolk  u  Woolf  oik,  53Ga.  661; 

the  parties  to  testify.    Dillon  v.  Roe  v.  Eoe,  8  J.  &  S.  1;   Finn  «. 

Dillon,  33  La.  An.  643;   Daspit  v.  Finn,  12  Hun,  339;  Moore  v.  Moore, 

Ehringer,  33  La.  An.  1174.    Stat-  14  Wk.  Dig.  255;  Bailey  v.  Bailey, 

utes   permitting  such  testimony.  41  Hun,  424;  Fanning  v.  Fanning, 

Matthai   v.   Matthai,  49   CaL  90;  20  N.  Y;  Supp.  849,  3  Misc.  Rep.  90. 

Melvin  v.  Melvin,  58  N,  H.  569;  6  Li  New  York  the  defendant  is 


1779.] 


EVIDENCE. 


741 


and  wife  competent  witnesses  in  an  action  for  divorce,  a  de- 
cree should  rarely  be  granted  without  some  corroborative 
evidence.  And  where  the  defendant  denies  and  contradicts 
all  the  plaintiEE's  testimony  it  is  clear  that  no  case  is  estab- 
lished. Still  there  may  be  instances  where  the  credibility 
of  the  parties  is  so  unequal  or  the  denial  so  inconsistent 
that  a  finding  or  verdict  in  favoi*  of  the  plaintiff  may  be 
justified.^ 

§  779.  Necessity  of  corroborating  testimony  of  a  party. 
"When  the  testimony  of  a  party  is  admissible  it  is  regarded 
as  of  no  greater  force  than  the  testimony  of  an  accomplice, 
and  corroboration  is  generally  required.^    Eut  corroboration 


permitted  by  recent  amendment 
of  the  code  to  testify  to  any  fact 
disproving  the  adultery.  Irsoh  u 
Irsch,  12  Civil  Proc.  181 ;  Stevens  v. 
Stevens,  54  Hun,  490,  8  N.  Y.  Supp. 
47;  De  Meli  v.  De  Meli,  120  N.  Y. 
485.  approving  67  How.  Pr.  20; 
Steffens  v.  Steffens,  11  N.  Y.  Supp. 
424  The  communications  of  hus- 
band and  wife  are  admissible  in 
an  action  for  divorce  for  adultery 
although  there  is  also  an  issue  of 
cruelty  to  be  tried  in  the  same  suit. 
Testimony  competent  on  either 
isfeue  must  be  admitted.  De  Meli 
V.  De  Meli,  120  N.  Y.  485,  24  N.  E. 
996;  Woodrick  v.  Woodrick,  141 
K.  Y.  457,  36  N.  E.  395,  affirming 
20  N.  Y.  Supp.  468;  McCarthy «. 
McCarthy  (N.  Y.),  38  N.  E.  288. 
As  to  competency  of  the  parties 
as  witnesses  see  also  the  following 
cases:  Castello  v.  Castello,  41  Ga. 
613;  Cook  v.  Cook,  46  Ga.  308;  Lor- 
enz  V.  Lorenz,93  lU.  376;  Wilcox 
r.  Wilcox,  16  111.  Ap.  580;  Morse  v. 
Morse,  65  Ind.  156;  Stuart  u  Stuart, 
47  Mich.  566;  Belton  v.  Belton,  29 
N.  J.  Eq.  449;  Pullen  v.  Pullen, 
3  Stew.  Ch.  541;    Rivenburgh  v. 


Rivenburgh,  47  Barb.  419;  Bisssl  te 
Bissel,  55  Barb.  325;  Hennessy 
V.  Hennessy,  58  How.  Pr.  304;  Eoe 
V.  Eoe,  40  N.  Y.  Supr.  1;  Chamber- 
lain V.  P.,  23  N.  Y.  85;  Perkins  v. 
Perkins,  88  N.  C.  41;  Winter  v. 
Winter,  7  Phila.  369;  Bronson  v. 
Bronson,  8  Phila.  261 ;  Pyle  v.  Pyle, 
10  Phila.  58;  Stafford  v.  Stafford, 
41  Tex.  Ill;  Hays  v.  Hays,  19  Wis. 
197;  Hill  V.  Proctor,  10  W.  Va.  59; 
Rose  V.  Brown,  11  W.  Va.  122. 

1  Where  a  husband  contradicted 
the  wife's  testimony  in  every  par- 
ticular, it  was  said  that,  the  law 
having  made  the  parties  compe- 
tent witnesses,  it  was  for  the  jury 
and  not  the  court  to  determine 
their  credibility.  "That  she  was 
flatly  contradicted  by  her  husband 
did  not  take  the  case  away  from 
the  jury  is  clear.  It  may  be  that 
the  credibility  of  the  wife,  and  the 
want  of  credibility  of  the  husband, 
were  as  clear  to  the  minds  of  the 
jury  as  the  light  of  noonday." 
Flattery  v.  Flattery,  88  Pa.  27. 

2  Harris  v.  Harris,  2  P.  &  M.  77; 
Scott  V.  Scott,  3  Swab.  &  T.  319; 
Shafto  V.  Shafto,  28  N.  J.  Eq.  34j 


7i2  EVIDENCE.  [§  779, 

is  not  required  by  any  absolute  rule  of  law.  Marital  wrongs 
often  occur  when  no  witnesses  are  present,  or  the  circum- 
stances of  the  case  are  such  that  corroboration  is  impossible, 
and  then  a  decree  may  be  based  on  the  testimony  of  one 
party  alone.'  Thus,  in  an  action  to  annul  a  marriage  on  ac- 
count of  impotence,  the  wife's  testimony  was  held  sufficient. 
"  No  one,"  said  the  judge,  "  can  help  feeling  that  the  single 
oath  of  a  party  interested,  fortified  by  nothing  stronger 
than  the  silence  of  the  party  charged,  is  treacherous  ground 
for  judicial  decision ;  but  no  one  can  deny  that  if  the  lady's 
story  is  true,  her  condition  is  one  of  grievous  hardship.  And 
to  call  for  corroboration,  where  all  corroboration  is  from 
the  nature  of  the  subject  impossible,  would  be  harder  still. 
I  have  no  alternative,  then,  but  to  examine  and  adjudicate 
upon  the  petitioner's  truth,  or  to  close  the  door  of  the  court 
against  her  altogether,  be  her  story  never  so  true.  I  accept 
the  former,  and  pronounce  myself  entirely  satisfied  that  this 
marriage  has  never  been  consummated,  and  that  the  respond- 
ent is  incurably  impotent."  ^  The  rule  requiring  the  plaint- 
iff's testimony  to  be  corroborated  is  held  to  be  merely  a 
general  rule  of  piactice  and  not  an  inflexible  rule  of  law. 
"  When  other  evidence  can  be  had,"  says  Gray,  J.,  "  it  is  not 
ordinarily  safe  or  fit  to  rely  on  the  testimony  of  the  party 
only.  But  sometimes  no  other  evidence  exists  or  can  be  ob- 
tained. The  parties  are  made  competent  witnesses  by  stat- 
ute, and  there  is  no  law  to  permit  the  finding  of  a  fact  upon 
the  testimony  of  a  party  whose  credibility  and  good  faith 
are  satisfactorily  established." '  And  this  is  believed  to  be 
the  law  in  all  our  states  where  the  statute  permits  the  par- 
tics  to  testify,  and  does  not  prohibit  the  courts  from  grant- 
ing a  decree  upon  the  uncorroborated  testimony  of  one 
party.*  If  both  parties  testify  and  the  defendant  denies  aU 
the  plaintiff's  testimony,  the  evidence  is  insufficient.'    In 

>  H.  n  P.,  3  p.  &  M.  126.  <  Sylvis  v.  Sylvis,  11  Colo.  319, 17 

2F.  V.  D.,  4  Swab.  &  T.  86.  P.  913. 

8  Bobbins  v.  Bobbins,  100  Mass.  s  Fischer «.  Fischer,  18  N.  J.  Eq. 

150.  300. 


§  780.]  EVIDENCE.  743 

such  case,  however,  the  court  must  be  careful  to  notice  the 
character  of  both  parties  and  the  consistency  of  the  testi- 
mony, and  may  refuse  the  decree  if  the  evidence  is  not  sat- 
isfactory. In  New  Jersey  and  Arkansas,  and  perhaps  other 
states,  the  courts  have  required  corroborative  evidence  for 
so  long  a  time  that  the  rule  has  acquired  almost  the  effect  of 
a  statute.^ 

It  is  provided  in  some  of  the  states  that  no  divorce  shall 
be  granted  upon  the  uncorroborated  statement,  admissions 
or  testimony  of  the  parties.^ 

§  780.  What  corroboration  is  sufficient. —  The  amount 
of  corroboration  that  wiU  suffice  must  depend  upon  the  facts 
and  circumstances  of  each  particular  case,  and  no  general 
rule  can  be  derived  from  the  authorities.  It  is,  however, 
conceded  that  the  corroboration  need  not,  standing  alone, 
be  sufficient  to  make  out  a  prima  facie  case.'  By  some  au- 
thorities it  is  held  that  the  testimony  of  an  accomplice  is 
sufficiently  corroborated  by  other  evidence  sustaining  any 
material  fact  in  the  case ;  ^  while  the  greater  weight  of  judi- 
cial opinion  seems  to  be  that  the  confirmatory  evidence  must 
tend  in  some  degree  to  connect  the  prisoner  with  the  crime, 
and  not  merely  establish  some  collateral  matter  or  prove 

1  Woodwortli  V.  Wood  worth,  21  39  N.  W.  270;  Lewis  v.  Lewis,  75  la. 
N.  J,  Eq.  351 ;  Sandf ord  v.  Sandford,  200,  39  N.  W.  271 ;  Evans  v.  Evans, 
33  N.  J.  Eq.  430;  Franz  v.  Franz,  33  41  Cal.  103;  Matthai  v.  Matthai,  49 
N.  J.  Eq.  483;  Doughty  v.  Doughty,  Cal.  90;  Cooper  v.  Cooper,  88  Cal. 
33  N.  J.  Eq.  33;  McShane  v.  Mc-  45,  25  P.  1062;  Hagle  u  Hagle,  74 
Shane,  45  N.  J.  Eq.  341,  19  A.  465;  Cal.  608,  16  P.  518;  Leach «.  Leach, 
Palmer  v.  Palmer,  23  N.  J.  Eq.  88;  46  Kan.  724,  37  P.  131;  McCulIoch 
Tate  V.  Tate,  36  N.  J.  Eq.  55;  Costill  v.  McCuUoch,  8  Blackf.  60;  Math- 
V.  Costill,  47  N.  J.  Eq.  346;  Herold  ews  v.  Mathews,  41  Tex.  331. 

«.  Herold,  47  N.  J.  Eq.  210,  20  A.  SRapalje    on  Witnesses,   §  227, 

375,  and  cases  cited;  Eie  v.  Eie,  34  citing  Lumpkin  v.  S.,  68  Ala.  56; 

Ark.  37;  Brown  v.  Brown,  38  Ark.  Hoyle  v.  S.,  4  Tex.  Ap.  239;  8.  v. 

324;  Scarborough  v.  Scarborough,  Lawler,  28  Minn.   216;  Jackson  v. 

54  Ark.  20,  14  S.  W.  1098;  Kurtz  v.  S.,  4  Tex.  Ap.  293. 

Kurtz,  38  Ark.  119;  Ortman  v.  Ort-  <  S.  v.  Hennessy,  55  la.  299;  Terri- 

man,  93  Mich.  173,  52  N.  W.  619.  tory  v.  Corbett,  3  Mont.  50. 

2  See  Potter  v.  Potter,  75  la.  311, 


744  EVIDENCE.  [§  781. 

that  a  crime  has  been  committed  by  some  one.'  There  is  no 
doubt  that  circumstantial  evidence  which  establishes  a  ma- 
terial fact  in  the  case  is  sufficient  corroboration  of  the  plaint- 
iff's testimony  in  an  action  for  divorce.^  "When  no  divorce 
could  be  granted  upon  the  testimony  of  either  party  "  unless 
corroborated  by  other  evidence,"  it  was  held  that  the  wife's 
testimony  that  her  husband  committed  adultery  with  a  cer- 
tain woman  was  sufficiently  corroborated  by  evidence  that 
the  woman  w&s  of  doubtful  character  and  had  lived  alone 
with  the  defendant  for  some  time,  and  also  by  the  failure  of 
the  defendant  to  contradict  her  testimony,  both  the  defend- 
ant and  the  alleged  paramour  being  present  at  the  trial.' 
The  plaintiff's  testimony  that  her  husband  had  called  her 
vile  and  opprobrious  names  was  sufficiently  corroborated  by 
the  testimony  of  a  witness  that  the  husband,  when  informed 
that  his  wife  had  complained  to  others  of  his  ill  treatment, 
did  not  deny  the  charges  made  against  him.*  Where  there 
was  no  direct  evidence  aside  from  the  testimony  of  the 
plaintiff  that  her  husband  became  an  habitual  drunkard 
after  marriage,  her  testimony  was  sufficiently  corroborated 
by  other  facts  in  the  case,  detailed  by  other  witnesses,  tend- 
ing to  show  that  the  drinking  did  not  become  habitual  until 
after  marriage  and  that  the  fits  of  intoxication  became  more 
frequent  in  later  years.* 

§  781.  Confessions  and  admissions. —  The  confessions  and 
admissions  of  a  party  are  admissible  against  him  in  a  divorce 
suit  as  in  other  actions.*    Such  evidence  is,  however,  of  the 

1  Rapalje    on  Witnesses,    citing        ^  Evans  v.  Evans,  41  Cal.  103. 
Com.  V.  Drake,  134  Mass.  31;  S.  v.        «Venzke  v.  Venzke,  94  Cal.  335, 
Kellerman,  14  Kan.  135;  Marler  v.    29  P.  443. 

S.,  67  Ala.  55;  P.  v.  Garnett,  39  Cal.  5  Lewis  v.  Lewis,  75  la.  300,  39  N. 

633;  P.  V.  Ames,  39  Cal.  403;  P.  v.  W.  371. 

Cloonan,  50  Cal.  449;  P.  v.  Coiu-t-  6  King  u  King,  38  Ala.  315;  Hand- 

ney,  28  Hun  (N.  Y.),  589.  berry  v.  Handberry,  39  Ala.  719; 

2  Emerson  v.  Emerson,  16  N.  Y.  Lindsay  v.  Lindsay,  43  N.  J.  Eq. 
Supp.  793 ;  Derby  v.  Derby,  31  N.  J.  150, 7  A.  666 ;  Burk  v.  Burk,  "44:  Kan. 
Eq.  36;  Venzke  v.  Venzke,  94  Cal.  307,24  P.  466;  Breckmans  uBreck- 
335,  29  P.  449;  Lewis  v.  Lewis,  75  mans,  16  N.  J.  Eq.  133;  Richardson 
la.  200,  39  N.  W.  371.  v.  Richardson,  50  Vt.  119;  Betts  v. 


§  781.J 


EVIDENCE. 


745 


very  IdWest  order,  and  from  the  earliest  times  to  the  present 
has  been  received  with  caution,  and  held  insufficient  to  justify, 
a  decree  of  divorce.^  The  statutes  sometimes  prohibit  the 
courts  from  granting  divorce  on  such  evidence.^ 

So  the  admissions  of  the  parties  in  their  pleadings  do  not 
relieve  them  from  establishing  all  the  facts  necessary  to  pro- 


Betts,  1  Johns.  Ch.  197;  Armstrong 
V.  Armstrong,  33  Miss.  379;  White 
V.  White,  45  N.  H.  121;  Clutch  v. 
Clutch,  1  N.  J.  Eq.  474;  Lyster  v. 
Lyster,  1  la.  130 ;  Fulton  v.  Fulton, 
86  Miss.  517;  Lyon  v.  Lyon,  63  Barb. 
(N.  y.)  138;  Devanbaugh  v.  Devan- 
baugh,  5  Paige,  554. 

1  See  Summerbell  v.  Summerbell, 
37  N.  J.  Eq.  603,  reviewing  the  fol- 
lowing early  authorities:  Williams 
V.  Williams,  1  Hagg.  Con.  399;  Mor- 
timer V.  Mortimer,  3  Hagg.  810 
Harris  v.  Harris,  2  Hagg.  376 
Burgess  v.  Burgess,  3  Hagg.  223 
Noverre  v.  Noverre,  1  Rob.  438 
Owen  V.  Owen,  4  Hagg.  361 ;  Grant 
V.  Grant,  3  Curties,  16;  Deane  v. 
Deane,  12  Jur.  63.  The  rule  is  de- 
duced from  the  above  that,  if  the 
proofs  are  almost  sufficient,  but  do 
not  entirely  satisfy  the  conscience 
of  the  court,  the  confession  may  be 
decisive  if  free  from  suspicion  of 
collusion,  improper  influence,  or 
made  in  good  faith.  See,  also,  as 
supporting  the  text,  Miller  v.  Mil- 
ler, 1  N.  J.  Eq.  386;  Baxter  v.  Bax- 
ter, 1  Mass.  346;  Sawyer  v.  Saw- 
yer, Walker  (Mich.),  48;  Jones  v. 
Jones,  17  N.  J.  Eq.  851 ;  Latham  v, 
Latham,  38  Gratt.  (Va.)  307;  WiU- 
iams  V.  Williams,  1  P.  &  M.  29; 
Le  Brun  v.  Le  Brun,  55  Md.  495; 
Mack  V.  Handy,  39  La.  An.  491,  3 
So.  181;  Vance  v.  Vance,  8  Me.  132; 
Johns  V.  Johns,  29  Ga.   718;  Ed- 


wards V.  Edwards,  3  Pitts.  338; 
Van  Veighten  v.  Van  Veighten,  4 
Johns.  Ch.  501. 

^Kean  v.  Kean,  7  Dist.  C.  4; 
Woodrick  v.  Woodrick,  30  N.  Y. 
Supp.  468;  Marshall  v.  Baynes,  80 
Va.  1040, 14  S.  E.  978 ;  Burk  v.  Burk, 
44  Kan.  307,  34  P.  466;  SteflEens  v. 
Steflfens,  11  N.  Y.  Supp.  425;  Fow- 
ler V.  Fowler,  11  N.  Y.  Supp.  419. 

Where  a  witness  has  testified  that 
the  husband  had  invited  the  para- 
mour to  tlie  house,  another  witness 
may  be  asked,  on  cross-examina- 
tion, if  "  she  did  not  hear  the  plaint- 
iff before  that  forbid  (the  wife)  to  go 
with  (the  paramour)  or  go  where  he 
was."  Such  testimony  is  not  incom- 
peiient  under  the  statute  excluding 
the  declarations  and  admissions  of 
the  parties,  and  is  admissible  to  dis- 
prove connivance.  Toole  i'.  Toole, 
109  N.  C.  615.  Such  conversation, 
having  taken  place  in  the  presence 
of  the  witness,  is  not  a  privileged 
communication.  Toole  v.  Toole, 
113  N.  C.  153.  The  declarations  of 
the  alleged  paramour,  made  to  or 
in  the  presence  of  the  wife,  and 
the  reply  of  the  wife,  tending  to 
show  that  improper  familiarities 
had  been  or  were  about  to  be  in- 
dulged in  by  the  parties,  is  not 
incompetent  as  a  confession  or  ad- 
mission of  a  party  to  the  suit. 
Toole  V.  Toole,  113  N.  C.  153. 


746-  EVIDENCE.  [§  781. 

cure  the  divorce.'  The  admission  of  defendant's  counsel  that 
plaintiff  is  a  resident  of  the  state  does  not  excuse  proof  of 
that  fact  where  the  statute  requires  such  fact  to  be  proved 
by  at  least  two  witnesses.^  The  reason  for  requiring  addi- 
tional evidence  is  to  prevent  divorce  by  coUusive  agreements, 
and  because  the  confession  may  have  been  obtained  by  extor- 
tion or  fraud.'  Some  authorities  maintain  that  a  decree  can 
be  based  upon  the  confession  of  the  defendant,  "  where  it  is 
full,  confidential,  reluctant  and  free  from  suspicion  of  col- 
lusion," *  or  the  circumstances  were  such  as  to  repel  all  just 
suspicion.'  But  the  general  doctrine  already  stated  requires 
something  more  than  mere  proof  of  the  genuineness  of  the 
confession ;  it  requires  proof  that  the  confession  itself  must 
be  true.  This  does  not  require  the  additional  proof  to  be 
sufficient  to  establish  a  prima  facie  case."  If  the  confession 
is  consistent  and  genuine  and  corroborated  by  other  evi- 
dence, it  is  entitled  to  great  weight,  and  becomes  the  foun- 
dation of  other  evidence  which  may  be  explanatory.''  Or,  if 
it  is  inconsistent  and  improbable,  it  wiU  not  be  regarded  as 
of  any  value.  The  confession  to  be  admissible  must  be  vol- 
untary. If  it  has  been  obtained  by  unfair  means,  by  fraud- 
ulent representations,  by  fear  of  violence  or  disgrace,  or 
through  the  husband's  constraint,  it  should  not  be  admitted 
as  part  of  the  evidence.*    A  written  confession  of  the  wife 

1  Schmidt  v.  Schmidt,  29  N.  J.  parties.  Hampton  v.  Hampton,  87 
Eq.  496;  Hughs  v.  Hughs,  44  Ala.  Va.  148,  12  S.  E.  340.  In  Texas  this 
698;  True  v.  True,  6  Minn.  315.  was  held  to  exclude  the  confessions 

2  Prettyman  v.  Prettyman,  125  of  the  parties.  Stafford  v.  Stafford, 
Ind.  149,  25  N.  E.  179.                '  41   Tex.   111.     But   see  Hanna  v. 

SBetts  V.  Betts,  1  Johns.  Ch.  197.  Hanna,  3  Tex.  Civ.  Ap.  51,  21  S.  W. 

^Matchin  v.  Matchin,  6  Pa.  382.  720. 

In  this  case  there  was  also  strong  ''  See  Hansley  v.  Hansley,  10  Ire. 

circumstantial  evidence.  Law,  506. 

5  Madge  v.  Madge,  42  Hun,  524;  « Hampton  v.  Hampton,  87  Va. 
BiUings  v.  Billings,  11  Pick.  461.  148,  12  S.  E.  340;  Miller  v.  Miller,  2 

6  In  some  states  the  statute  re-  N.  J.  Eq.  139;  Callender  v.  Callen- 
quires  the  evidence  to  be  full  and  der,  53  How.  Pr.  364;  Twyman  v. 
satisfactory    independent    of   the  Twyman,  27  Mo.  383. 
confessions  and  admissions  of  the 


§  782.]  EVIDENCE.  747 

that  she  had  occupied  a  state-room  with  the  alleged  para- 
mour during  the  night  was  excluded  as  involuntary,  where 
she  was  persuaded  that  such  confession  would  not  be  an  ad- 
mission of  adultery ;  and  the  husband  to  induce  her  to  sign 
it  had  promised  to  hire  a  house  and  go  to  housekeeping  with 
her.i  Such  confession  must  be  excluded  if  not  fuUy  under- 
stood or  fairly  obtained,  although  it  has  been  formally  sworn 
to  before  an  authorized  officer.^  A  confession  copied  by  the 
wife  in  the  presence  of  her  husband  from  memoranda  made 
for  her,  though  signed  in  the  presence  of  a  witness,  must  be 
disregarded  when  all  the  circumstances  create  a  strong  sus- 
picion that  the  acts  confessed  could  not  have  taken  place, 
and  the  subsequent  conduct  of  the  parties  shows  collusion.^ 
Where  the  trial  is  to  the  court  without  a  jury,  it  seems  that 
the  confession  must  be  admitted  in  evidence  to  determine 
whether  it  is  genuine,  and  then  evidence  is  heard  to  estab- 
lish its  validity,  leaving  the  court  to  determine  its  weight 
from  the  corroborative  evidence.  In  a  jury  trial  other  con- 
siderations may  control,  but  generally  it  may  be  admitted 
after  establishing  its  validity. 

§  782.  Privileged  commuuications  between  husband  and 
wife. —  At  common  law  neither  the  husband  nor  the  wife 
could  be  a  witness  either  for  or  against  the  other,  partly  on 
the  ground  of  interest  and  identity,  but  principally  on  the 
ground  of  public  policy  which  protected  marital  confidence 
by  excluding  all  communications  between  husband  and  wife 
as  privileged.  When  husband  and  wife  are  made  competent 
witnesses  by  statute,  this  did  not  abrogate  the  common-law 
rule  which  excluded  their  conversations  and  communica- 
tions.* The  common  law  must  be  changed  by  some  express 
enactment  permitting  the  parties  to  relate  their  private  con- 
versations. Generally  the  statutes  do  not  alter  the  common 
law,  but  simply  express  the  common-law  rule  that  such  com- 

1  Derby  v.  Derby,  21   N,  J.  Eq.        sSummerbell  v.  Summerbell,  37 
36-48.  N.  J.  Eq.  603. 

2  Id.  ^Raynes  v.  Bennett,  114  Mass. 

424 


748  EVIDENCE.  [§  782. 

munications  are  privileged.'  The  general  provisions  of  the 
statute  relating  to  evidence  are  held  to  exclude  this  kind  of 
testimony  in  actions  for  divorce.^  This  rule  works  great 
hardship  where  the  husband  has  been  guilty  of  extreme 
cruelty  or  of  indignities  rendering  the  wife's  condition  intol- 
erable, as  accusing  the  wife  of  adultery  or  using  vile,  abusive 
and  profane  language  when  others  are  not  present ;  but  even 
in  such  cases  such  evidence  is  not  admitted  even  on  the 
ground  of  necessity.' 

The  privilege  extends  not  only  to  the  conversations  of  the 
parties,  but  also  to  written  communications,  letters  or  tele- 
grams.* The  reason  of  the  common-law  rule  extends  to 
written  as  well  as  oral  communications.  The  parties  should 
be  as  free  to  write  to  each  other  as  to  talk  together.  But  it 
is  held  that  the  privilege  does  not  extend  to  conversations  in 
the  presence  of  others.  A  witness  who  secretly  or  accident- 
ally overheard  a  conversation  of  the  parties  may  relate  itj' 
although  both  parties  were  unaware  that  they  were  over- 
heard." And  when  a  letter  of  one  of  the  parties  falls  into 
the  hands  of  a  third  person  it  is  said  that  "  the  sacred  shield 
of  privilege  "  is  removed.''  But  it  seems  that  the  reason  for 
the  privilege  would  exist  in  all  cases  where  the  letter  comes 
into  the  possession  of  a  third  person  except  where  the  writer 
voluntarily  places  it  in  the  hands  of  others  under  such  cir- 
cumstances that  it  may  be  read.  After  the  letter  reaches 
the  hands  of  the  other  pa,rty  it  should  be  privileged.  No  in- 
fidelity of  the  receiver  can  make  it  an  instrument  of  evidence. 

1  Cornish  v.  Cornish,  56  I'ex.  564;  contra,  Fowler  v.  Fowler,  11  N.  Y. 
Briggs  V.  Briggs  (E.  I.),  36  A.  198;    Supp.  419,  58  Hun,  601. 

Smith  V.  Smith,  77  Ind.  80.  <  Brown  v.  Brown,  53  Mo.  Ap.  453. 

2  Berlin  v.  Berlin,  53  Mo.  151;  See.  also,  Mitchell  V.  Mitchell,  80 
Moore  v.  Moore,  51  Mo.  118;  Dwyer    Tex.  101. 

V.  Dwyer,  2  Mo.  Ap.  17;  Stebbins        =  Toole  v.  Toole,  112  N.  C.  153. 
V.  Anthony,  5  Colo.  348;  French  v.        6  Com.  v.  Griffin,  110  Mass.  181; 
French,  14  Gray,  186.  S.  v.  Centre,  35  Vt.  378;  Gannon  v. 


3  Miller  v.  Miller,  14  Mo.  Ap.  418 
Vogel  V.  Vogel,  13  Mo.  Ap.  588 
Dwyer  v.  Dwyer,   3  Mo.   Ap.  17 


P.,  127  111.  518;  Jacobs  u  Hesler,  113 
Mass.  157. 
'S.  V.  Buffington,  20  Kan.  599; 


Ayers  v.  Ayers,  28  Mo.  Ap.  97.    See    S.  v.  Hoyt,  47  Conn.  518,  540. 


§  783.]  EVIDENCE.  749 

The  same  privilege  continues  after  the  marriage  is  dis- 
solved, and  neither  of  the  divorced  parties  can  reveal  any 
information  acquired  during  the  marriage.'  But  their  com- 
munications made  after  divorce  are  admissible.' 

§  783.  Privileged  communications  to  physicians  and 
attorneys. —  The  testimony  of  physicians  is  often  resorted 
to  in  actions  for  divorce  for  cruelty  or  adultery.  Theip  tes- 
timony is  admissible  as  in  other  cases.  At  common  law  the 
communications  of  patients  to  their  physicians  Avere  not 
privileged,  and  so  are  not  protected  unless  by  statute.'  The 
statutes  are  held  to  extend  their  protection  to  all  informa- 
tion received  by  eye  or  ear,  from  observation  of  the  patient's 
symptoms,  and  from  statements  of  others  around  him  as 
well  as  those  of  the  patient  himself.*  A  letter  addressed  to 
a  physician  is  a  privileged  communication  if  the  facts  dis- 
closed in  it  are  necessary  to  enable  the  physician  to  pre- 
scribe.* In  an  action  for  divorce  for  adultery,  where  it  is 
claimed  that  defendant  has  a  venereal  disease,  a  physician 
cannot,  against  the  defendant's  objection,  disclose  any  in- 
formation acquired  in  his  professional  employment."  Such 
communications,  like  those  made  by  a  client  to  counsel,  or 
by  a  layman  to  a  clergyman,  are  admissible  unless  the  privi- 
lege is  claimed.  The  patient  may  waive  this  privilege  and 
allow  the  physician  to  testify.'  Communications  to  an  at- 
torney, in  the  presence  of  another  party  who  acts  as  a  friend 

'S.U  Jolly,  3  Dev.  &  Bat.  110;  'Grattam  v.  Nat.  Life  Ins.  Co., 

Owen  -y.  S.,  78  Ala.  425;  Barnes  v.  15  Hun  (N.  Y.),  74. 

Camaok,  1  Barb.  Ch.  392;  S.  v.  J.  B.  <  Eapelje  on  Witnesses,  §  272. 

N.,  1  Tyler,  36,  overruled  in  S.  v.  »Briggs  V.  Briggs,  20  Mich.  34. 

Phelps,    3    Tyler,    874;     Cook    v.  ejo^ngon  v.  Johnson,   4  Paige, 

Grange,    18    O.    526;    Kimbrough  468;  a  C,  14  "Wend.  641;  Hunn  v. 

V.  Mitchell,  1  Head,  539;  Brook  v.  Hunn,  1  Thomp.  &  C.  499;  Venzke 

Brock,  116  Pa.  109;  Perry  v.  Ran-  v.  Venzke,  94  Cal.  325. 

dall,83I]id.  143;  Andersouv.Ander-  'A  party  may  claim  the  privi- 

son,  9  Kan.  113;  Elswick  v.  C,  13  lege  where   the    communications 

Bush,  155;  Mercer  v.  Patterson,  41  are  stated  in  an  aflldavit  to  be 

Ind.  440;  Chamberlain  v.  P.,  23  N.  used  on  a  hearing  for  temporary 

Y.  85.  alimony.   Sohlosser  v,  Schlosser,  29 

2  Long  V.  S.,  86  Ala.  36.  Ind.  488. 


750  EVIDENCE.  [§§  784,  785. 

and  agent,  and  tlie  conversation  of  all  three  persons  in  re- 
gard to  the  cause  of  action,  are  admissible  where  the  attorney 
is  not  employed  at  the  time,  or  subsequently  employed,  as 
attorney.' 

§  784.  Testimony  of  children  of  the  parties. —  Children 
who  are  of  suflBcient  age  may  testify  as  in  other  actions,  but 
their  testimony  is  not  regarded  with  much  favor.  Children 
of  the  parties  to  the  suit  are  often  biased  in  favor  of  one 
parent  as  against  the  other,  and  for  that  reason  as  well  as 
their  mental  immaturity  their  testimony  is  received  with 
caution  and  accorded  but  little  weight.^  Where  the  cause 
for  divorce  is  adultery,  it  is  manifestly  improper  to  call  the 
children  of  the  parties  to  establish  the  guilt  of  one  of  the 
parents.  "It  is  a  great  wrong  to  them,  not  only  as  it 
touches  them  in  their  natural  affections,  but  also  as  it  tends 
to  destroy  their  purity  of  mind  and  conduct.  Moreover, 
the  evidence  of  such  children  to  acts  which  will  naturally  be 
construed  by  their  prepossessions  and  immature  and  incorrect 
notions  is  of  very  slight  value,  even  when  honestly  called 
out  and  given,  and  is  easily  shaped  and  perverted  if  a  dis- 
honest father  shall  be  so  inclined." '  As  the  cause  for  divorce 
must  be  established  by  full  and  satisfactory  evidence,  the 
testimony  of  children  of  the  parties,  without  other  evi- 
dence, is  insuiiicient  to  justify  a  decree.''  "Where  the  hus- 
band and  wife  contradict  each  other,  and  their  testimony  is 
of  equal  credibility,  the  testimony  of  their  children,  if  con- 
sistent, may  create  a  satisfactory  preponderance  in  favor  of 
one  party.' 

§  785.  Relatives  and  servants  as  witnesses. —  In  the  old 
reports  there  is  some  comment  on  the  value  of  the  testimony 
of  relatives  and  servants,  but  similar  considerations  will  not 

1  Sharon  v.  Sharon,  79  CaL  633.  3  Crowner  v.  Crowner,  44  Mich. 

2  Blake  v.  Blake,  70  111.  618;  Phil-    180. 

lips  V.  Phillips,  91  Ga.  551,  17  S.  E.  <Kneale  v.  Kneale,  28  Mich.  344. 
633;  Fox  v.  Fox,  25  CaL  587;  Look-  sCrichton  v.  Crichton,  73  Wis. 
wood  V.  Lockwood,  2  Curt.  Ec.  281.    59,  40  N.  W.  638;  Land  v.  Mullin, 

—  La,  ^,  15  So.  657. 


§  T85.]  EVIDENCE.  751 

apply  to  their  testimony  at  the  present  time  because  such 
persons  are  not  as  dependent  as  formerly.'  Such  testi- 
mony should  be  examined  with  care,  as  it  is  seldom  free 
from  bias,  and  is  not  entitled  to  the  weight  of  the  testimony 
of  witnesses  not  related  or  otherwise  interested.^  The  pro- 
verbial bias  of  the  mother-in-law  in  favor  of  her  child  as 
against  her  son-in-law  or  daughter-in-law  has  often  been  the 
subject  of  unfavorable  comment  in  the  reports.' 

'See  remarks  in  Dysart  v.  Dy-  Ala. 698;  Reading u Reading (N.  J.), 

sart,    1    Rob.   Ec.   106;    Ciocci    v.  8  A.  809. 

Ciocci,  26  L.  &  Eq.  604;   s.  C,  1  '  Berckmans  v.  Berckmans,  16  N. 

Spinks,  121.  J.  Eq.  132;  S.  C,  17  N.  J.  Eq.  453; 

3  Jenkins  v.  Jenkins,  86  III  340;  Edmond's  Appeal,  57  Pa.  233;  Fan- 
Hampton  V.  Hampton,  87  Va.  148,  ning  v.  Fanning,  20  N.  Y.  Supp. 
13  S.  E.  340;  Hughs  v.  Hughs,  44  849;  Murray  v.  Murray,  66  Tex.  207, 

18  S.  W.  508. 


TRIAL  AND  APPEAL. 


§  800.  The  trial  — Open  court 

801.  Trial  by  jury  and  verdict. 

802.  The  right  to  open  and  close. 

803.  When  the  divorce  suit  fol- 

lows the  code  procedure. 

804.  Change  of  venue.     > 


805.  The  right  to  dismiss. 

806.  Eeference, 

807.  Co^ts. 

808.  New  trials. 

809.  Appeal. 


§800.  The  trial  —  Open  court. —  Under  the  early  chan- 
cery practice  the  chancellor  did  not  hear  oral  testimony  b,ut 
determined  the  case  on  the  depositions  of  the  witnesses. 
If  the  divorce  suit  follows  the  chancery  practice  it  would  be 
proper  to  try  the  issues  in  the  same  manner  unless  the  stat- 
utes provide  otherwise.  In  some  states  it  is  required  that 
the  case  shall  be  tried  in  open  court  or  that  the  witnesses 
shall  be  examined  in  open  court.^  It  is  supposed  that  a  pub- 
lib  trial  is  a  safeguard  against  bribery  and  collusion  and 
that  the  best  interests  of  the  state  demand  it.  An  open 
court  is  a  court  formally  opened  and  engaged  in  the  trans- 
action of  judicial  affairs,  to  which  all  persons  who  conduct 
themselves  in  an  orderly  manner  are  admitted.^  A  statute 
which  requires  a  court  to  proceed  to  "hear  the  cause  by  ex- 
amination of  witnesses  in  open  court "  is  not  compUed  with 
by  hearing  the  testimony  of  one  witness  and  the  deposition 
of  another.'  In  the  absence  of  any  statute  to  the  contrary, 
it  is  supposed  that  a  court  may  hear  a. nullity  suit  in  private 
where  the  evidence  is  offensive  and  the  parties  do  not  ob- 
ject." 

'See  HobartwHobart,45  la.  501;  'Suesemilch  v.  Suesemilch,  43 
Cross  V.  Cross  55  Mich.  280.  IlL  Ap.  573. 

2Hobart  v.  Hobart,  45  la.  501.  *2  Bishop,  Mar.,  Sep.  &  Div.  674 


•§  801.J 


TEIAL   AND   APPEAL. 


V53 


§  801.  Trial  by  jury  and  verdict.— In  the  ecclesiastical 
courts  the  judge  heard  the  divorce  suit  vpithout  the  inter- 
ventiou  of  a  jury;i  and  this  is  the  common  practice  in  our 
-country  unless  the  statute  provides  for  a  jury  trial.^  If  a 
jury  trial  is  permitted  by  statute  it  is  a  matter  of  right  un- 
less waived.^  In  the  absence  of  statute  the  parties  have  no 
constitutional  right  to  a  trial  by  jury,  since  such  right  did 
not  exist  at  common  law.*  Where  a  jury  is  required  the 
court  may  instruct  them  as  in  other  cases.'  And  a  request 
for  special  findings  may  be  submitted  to  the  jury  under  the 
provisions  of  the  code,*  and  the  court  may  make  additional 
findings  on  issues  not  presented  to  the  jury.'  "Where  the 
divorce  suit  follow^s  the  chancery  practice  the  court  may 
submit  certain  issues  to  the  jury ;  but  the  refusal  to  do  so  is 
within  the  discretionary  power  of  the  court  and  is  not  sub- 
ject to  review.^  In  such  case  the  verdict  of  the  jury  is  not 
binding  on  the  court,  but  is  simply  advisory,  and  may  be  dis- 
regarded.'   But  the  action  of  the  court  in  entering  a  decree 


iCaton  V.  Caton,  13  Jur.  431. 

2  Slade  V.  Sla,de,  58  Me.  157;  Coffin 
V.  Coffin,  55  Me.  361;  Hobart  v. 
Hobart,  51  la.  513;  Carpenter  v. 
Carperiter,  30  Kan.  713;  Simpson 
V.  Simpson,  35  Ark.  487;  Madison  v. 
Madison,  1  Wash.  Ter.  60;  Allison 
V.  Allison,  46  Pa.  821 ;  Miles  v.  Miles, 
3  Jones  Eq.  31;  Carre  v.  Carre,  3 
Yeates,  307.  In  New  York  the  is- 
sue of  adultery  must  be  tried  by  a 
jury.  Dietz  v.  Dietz,  4  Thomp.  & 
C.  565;  Condennan  v.  Conderman, 
44  Hun,  181;  Galusha  v.  Galusha, 
43  Hun,  181;  Baltzell  v.  Baltzell, 
42  N.  Y.  Sup.  Ct.  561;  Whale  v. 
Whale,  1  Code  R.  115;  Anon.,  8 
Code  R  139;  Parker  v.  Parker,  3 
Abb.  Pr.  478;  Anon.,  5  How.  Pr.  806; 
Winans  v.  Winans,  54  N.  Y.  Sup. 
■Ct.  542. 

3  Dietz  V.  Dietz,  4  Thomp.  &  C. 
565,  3  Hun,  339;  Razor  v.  Razor,  43 

48 


IlL  Ap.  504;  Black  v.  Black,  5 
Mont.  15.  See,  also,  Keller  v.  Kel- 
ler, 3  Woodward,  483;  SchaefEeru 
Schaeffer,  3  Kulp,  14;  Uhrich  v. 
TJhrich,  3  Kulp,  14;  Jordon  v.  Jor- 
don,  13  W.  N.  C.  193.  > 

*Cassiday  v.  Cassiday,  64  Cal. 
366;  Mead  v.  Mead,  1  Mo.  Ap.  347. 

5  Smith  V.  Smith,  73  N.  C.  139; 
Richmond  v.  Richmond,  10  Yerg. 
843. 

6  Morrison  v.  Morrison,  14  Mont. 
8,  35  P.  1;  Morse  v.  Morse,  35  Ind. 
156;  Ewing  v.  Ewing,  24  Ind.  468; 
Bradley  v.  Bradley,  45  Ind.  67;  Cul- 
len  V.  Cullen,  44  Kan.  370. 

'Schmidt  v.  Schmidt,  31  Minn. 
106. 

8  Anon.,  35  Ala.  226;  Leffel  v. 
Leffel,  85  Ind.  76;  Burkley  v.  Burk- 
ley,  56  N.  Y.  192. 

9  Lewis  V.  Lewis,  9  Ind.  105;  Hay- 
good   V.    Haygood,   25   Tex.    576; 


754  TRIAL   AND    APPEAL.  [§§  802,  803, 

in  opposition  to  the  verdict  is  subject  to  review.'  If  a  jury 
trial  is  required  by  statute  it  would  seem  that  the  verdict 
should  not  be  advisory,  but  should  have  all  the  force  and 
effect  of  a  verdict  at  common  law.^ 

§  802.  The  right  to  open  and  close. —  The  suit  for  divorce 
is  often  a  complex  proceeding.  The  issue  pi'esented  by  the 
complainant  may  be  denied  by  the  defendant,  who  may  ten- 
der an  issue  of  far  greater  importance.  Thus  the  defendant 
may  deny  the  validity  of  the  marriage  and  pi'ay  that  the 
same  may  be  annulled.  Or  he  may  set  up  some  offense  of 
the  plaintiff  in  recrimination,  and  this  issue  will  become  the 
main  issue  of  the  case,  toward  which  most  of  the  proof  is 
directed.  In  reason,  the  party  who  tenders  the  principal 
issue  assumes  the  burden  of  proof  and  is  therefore  entitled 
to  open  and  close.  Thus,  where  the  wife  brought  an  action 
for  separate  maintenance  on  account  of  desertion,  the  hus- 
band denied  the  desertion  and  set  up  the  adultery  of  the 
wife  in  a  cross-petition  as  a  cause  for  divorce,  and  at  the 
trial  the  adultery  became  the  principal  issue.  It  was  held 
that  the  husband  should  have  the  right  to  open  and  close 
the  case,  but  the  court  had  a  right  to  direct  the  method  of 
the  trial,  and  the  refusal  to  permit  the  defendant  to  open 
and  close  the  case  was  not  an  abuse  of  discretion.' 

§  803.  When  the  divorce  suit  follows  the  code  proced'  , 
ure. —  Since  the  suit  for  divorce  is  governed  by  peculiar 
principles  of  its  own,  it  is  clear  that  all  the  provisions  of  the 
code  are  not  applicable.  For  instance,  the  provisions  relat? 
ing  to  confessions  of  judgment  have  no  application  in  a  suit 
for  divorce,  where  the  court  must  disregard  the  confession 

O'Bryan    v.   O'Brj'an,   13   Mo.   16;  Montfort  v.  Montfort,  88  Ga.  641, 

Muloch  V.  Muloch,  1  Edw.  Ch.  14;  15  S.  E.  688;  Carpenter  v.  Carpen- 

Paulson  V.  Paulson  (Tex.),  31  S.  W.  ter,  9  N.  Y.  Supp.  583;  Eichmond  v. 

778;  Moore  v.  Moore,  22  Tex.  237;  Richmond,   10   Yerg.   (Tenn.)   348. 

Morse  v.  Morse,  25  Ind.  156.              '  See  contra,  Beck  v.  Beck,  6  Mont. 

iJernigan  v.  Jernigan,   87  Tex.  818,  13  P.  694. 

420.  3  Razor  v.  Razor,  149  III.  631,  43 

2  Razor  V.  Razor,  43  111.  Ap.  504;  III  Ap.  504. 
Poertner  v.  Poertner,  66  Wis.  644; 


§  803.]  TEIAL  AND  APPEAL.  755 

or  default  of  a  party,  and  refuse  a  decree  unless  the  cause 
for  divorce  is  established  by  clear  and  satisfactory  evidence. 
The  practice  in  the  ecclesiastical  courts  cannot  be  followed, 
because  our  courts  have  established  rules  of  practice  and 
codes  of  civil  procedure.  When  jurisdiction  to  grant  divorce 
was  conferred  upon  our  courts,  it  was  not  intended  that  the 
practice  would  be  changed.  The  divorce  statutes  sometimes 
contain  special  provisions  governing  the  divorce  suit,  and 
the  inference  is  that  in  all  other  respects  the  practice  may 
follow  the  usual  course  of  proceedings.  The  divorce  act 
may  contain  no  provision  for  answer,  cross-petition,  demur- 
rers, amendment  of  pleadings,  reply,  motions  for  continu- 
ance or  new  trials,  service  of  summons,  change  of  venue,  bills 
of  exception,  appeal,  or  similar  pleadings  and  proceedings. 
Yet  all  such  provisions  of  the  code  are  applicable  to  the  di- 
vorce suit,  because  the  divorce  act  would  be  inoperative 
unless  such  procedure  could  be  followed.'  But  if  the  stat- 
ute is  silent  as  to  the  method  of  procedure,  or  contains  no 
provision  giving  full  scope  to  a  right  which  is  a  part  of  the 
common  law  of  divorce,  the  ecclesiastical  practice  may  be 
followed.  If  the  statute  is  silent  in  regard  to  such  defenses 
as  connivance,  collusion  or  recrimination,  the  right  to  inter- 
pose such  defense  will  exist  as  a  part  of  the  common  law  of 
divorce.  The  right  to  file  a  cross-petition  in  an  action  for 
divorce  and  to  obtain  affirmative  relief  is  not  to  be  derived 
from  the  divorce  act,  or  from  the  usual  provision  of  the  codes 
relating  to  set-off  and  counter-claim.  In  the  absence  of  any 
provision  for  such  a  pleading,  the  defendant  may  obtain  re- 
lief by  following  the  ecclesiastical  practice,  which  is  a  part 
of  the  common  law  of  our  country,  except  as  modified  by 
our  statutes.^  AU  provisions  of  the  code,  unless  manifestly  in 
conflict  with  thp  reason  and  policy  of  divorce  law,  or  the 
provisions  of  the  divorce  act,  are  applicable  to  the  proceed- 
ings for  divorce. 

1  Powell  V.  Powell,  104  Ind.  18;     P.  886,  citing  G.  v.  G.,  33  Md.  401; 
Evans  v.  Evans,  105  Ind.  304.  Le  Barron  v.  Le  Barron,  35  Vt.  365. 

^Wuest  V.  Wuest,  17  Nev.  317)  30 


756  TRIAL   AND   APPEAL.  '  [§§  804,  805. 

§  804.  Change  of  venue. —  A  suit  for  divorce  is  a  civil 
case  within  the  meaning  of  a  code  providing  for  a  change 
of  venue  in  civil  cases.  The  divorce  proceeding  in  most  of 
the  states  must  follow  the  procedure  in  other  civil  cases, 
where  the  act  relating  to  divorce  is  silent  as  to  questions  of 
pleading  and  practice,  unless  the  code  is  for  some  reason  in- 
applicable. For  this  reason  it  is  held  that  the  provisions  of 
the  code  relating  to  a  change  of  venue  or  the  right  to  ap- 
point a  special  judge  are  applicable  to  divorce  suits ; '  but 
not  to  applications  to  revise  decrees  of  alimony.^  If  the 
statute  gives  a  peremptory  right  to  a  change  of  venue,  the 
motion  must  be  granted  before  an  order  for  temporary  ah- 
mony  is  made.'  "Where  a  change  of  venue  is  demanded  on 
the  ground  of  local  prejudice  or  undue  influence  over  the 
citizens  of  the  county,  a  different  question  arises,  since  such 
provision  evidently  refers  to  a  trial  by  jury,  while  in  a  di- 
vorce suit  the  court  may  in  its  discretion  refuse  a  trial  by 
jury.  But  if  the  statute  evidently  includes  all  civil  actions 
a  change  of  venue  must  be  granted.  The  legislature  having 
permitted  the  change  in  all  cases,  the  court  will  not  inquire 
into  the  reasons  for  the  provision,  and  adjudge  them  suffi- 
cient or  insufficient.*  Eut  the  court  may  determine  that 
from  the  nature  of  the  proceeding  for  divorce  the  code  pro- 
vision is  or  is  not  applicable.* 

§  805.  The  right  to  flismiss.—  The  right  of  the  plaintiff 
to  dismiss  an  action  for  divorce  requires  some  notice  here, 
because  it  differs  from  the  plaintiff's  right  in  other  actions. 
Under  the  chancery  practice  it  is  well  settled  that,  at  any 
time  prior  to  the  decree,  the  complainant  has  the  right  to 
control  the  fortunes  of  his  own  bill,  and  on  payment  of  costs 
can  dismiss  it  as  a  matter  of  course.^    And  under  the  codes 

iMoeuMoe,  39Wis.309;  PoweU  sHennessy  v.  Mcol  (Cal.),  38  P. 

V.  Powell,  104  Ind.  18,  overruling  649. 

Mussebnan  v.  Musselman,  44  Ind.  *  Evans  A  Evans,  105  Ind.  204. 

106.  5  See,  also.  Usher  v.  Usher  (CaL), 

2HopkinsuHopkins,  40Wis.  463.  g6  P.   8;  Warner  v.  Warner,  100 

See  contra,  McPike  v.  McPike,  10  Cal.  11,  34  P.  533. 

la  Ap.  333.  6  Clark  v.  Clark,  39  lU.  Ap.  257. 


§  805.]  TEIAL   AND   APPEAL.  757 

of  civil  procedure  the  plaintiff  has  even  greater  rights,  and 
may  dismiss  an  action  in  vacation  by  filing  an  order  for  dis- 
missal.' But  the  action  for  divorce  in  this  respect  is  sui 
generis,  and  cannot  be  dismissed  without  permission  of  the 
court  if  the  defendant  has  entered  an  appearance.'^  There 
must  be  an  application  to  the  court  so  that  the  rights  of  the 
parties  and  their  attorneys  can  be  adjusted  and  all  the  mat- 
ters pertaining  to  the  suit  disposed  of.  The  application  for 
temporary  alimony  must  be  acted  upon,  and  the  plaintiff's 
dismissal  will  not  deprive  the  court  of  jurisdiction  to  award 
alimony  and  costs.'  The  court  has  also  the  discretionary 
power  to  make  alt  necessary  orders  to  compel  the  payment 
of  attorneys'  fees,  although  the  parties  have  agreed  to  dis- 
miss the  suit  and  resume  cohabitation.*  The  action  of  the 
court  in  this  matter  is  not  ordinarily  subject  to  review. 
Sometimes  the  courts  have  disregarded  the  rights  of  the  at- 
torneys for  the  wife  and  refused  to  make  any  allowance  for 
their  services  in  preparing  a  defense  for  her.^  But  the  cases 
are  wrong  in  principle,  for  it  is  good  policy  to  encourage 
the  wife  to  make  every  possible  defense  and  thus  discourage 
and  prevent  divorces.  When  the  services  are  rendered  in 
part  by  the  preparation  of  a  defense,  the  court  should  see 

1  Courtney  u  Courtney,  4  Ind.  Ap.  v.  Thompson,  40  Tenn.  (3  Head), 
231,  30  N.  E.  914  536. 

2  Winans  v.  Winans,  134  N.  Y.  140,  *  Courtney  v.  Courtney,  4  Ind.  Ap. 
36  N.  E.  398;  Murphy  v.  Murphy,  8  331,  30  K  E.  914;  Reynolds  v.  Supr. 
Phila.  357;  Cooper 'W.Cooper,  3  Swab.  Ct,  6  P.  431,  7  P.  480;  Dixon  v. 
&  T.  393;  Campbell  v.  Campbell,  13  Dixon,  3  P.  &  M.  353;  Wagner  v. 
Hun,  636,  54  How.  Pr.  115;  Leslie  u  Wagner,  34  Minn.  441;  Waters  v. 
Leslie,  10  Abb.  Pr.  (N.  S.)  64.  Waters,  49  Mo.  385;  Burgess  v.  Bur- 

5 Butler  V.Butler, 38  N.  J.Eq.636;  gess,  1   Duv.  (Ky.)  387;  Phillips  v. 

Weaver  v.  Weaver,  33  Ga.  173;  Les-  Simons,  11  Abb.  Pr.  388;  Kirby  v. 

lie  V.  Leslie,  10  Abb.  Pr.  (N.  S.)  64;  Kirby,  1  Paige,  565;  Gossett  v.  Pat- 

Clymer  v.  Clymer,  45  Leg.  Int.  (Pa.)  ten,  33  Kan.  341. 

879;  Kinohloe  t).  Merriam,  54  Ark.  » Reynolds  v.  Reynolds,  67   Cal. 

557;  Chase  v.  Chase,  65  How.  Pr.  176;  Moore  v.  Moore,  33  N.  Y.  Supp. 

308;  Louden  v.  Louden,  65  How.  451;  Newman  v.  Newman,  69  111. 

Pr.  411;  Smith  v.  Smith,  35  Hun,  167;  Persons  v.  Persons,  7  Humph. 

378;  -Thorndike    v.    Thorndike,    1  183;  McCulloch  v.  Murphy,  45  III. 

Wash.  175.    See  contra,  Thompson  356. 


768  TEIAL   AND    APPEAL.  [§  806. 

that  the  attorney  receives  some  remuneration  when  the  dis- 
missal is  entered.!  In  no  case  will  the  dismissal  of  a  bill 
defeat  the  right  of  the  defendant  to  obtain  the  relief  asked 
for  in  the  cross-bill.^  And  where  there  is  no  cross-bill,  but 
a  mere  denial  of  the  marriage,  the  plaintiff  cannot  dismiss, 
but  the  court  will  proceed  in  the  action  and  determine  the 
validity  of  the  marriage,  since  the  second  wife  and  the  gen- 
eral public  have  a  right  to  have  the  status  of  the  second  wife 
and  her  children  determined  in  this  action.^  Ordinarily  the 
plaintiff  has  no  right  to  dismiss  without  prejudice  after  the 
issues  have  been  submitted  to  the  court  or  jury;  but  where, 
by  oversight  or  surprise,  the  plaintiff  has  failed  to  introduce 
essential  testimony,  the  court  may,  in  its  discretion,  permit 
the  plaintiff  to  recall  the  submission  and  dismiss  without 
prejudice.*  The  action  should  be  dismissed  for  want  of 
prosecution  as  in  other  cases.  In  no  case  should  a  delay  be 
allowed  where  the  wife  is  receiving  instalments  of  tempo- 
rary alimony  and  will  profit  by  delay.  If  the  husband  is 
unable  to  pay  the  alimony  as  ordered,  the  court  may,  in  its 
discretion,  require  the  parties  to  proceed  to  trial  or  other- 
wise grant  the  hiisband's  application  to  dismiss ,  the  action. 
§  806.  Reference. —  In  the  absence  of  any  statute  requir- 
ing divorce  suits  to  be  tried  by  a  jury,  or  in  open  court,  or 
by  the  court  without  the  intervention  of  the  jury,  the  eccle- 
siastical practice  will  obtain  and  the  action  will  be  tried  be- 
fore the  court."  In  such  case  it  is  doubtful  whether  a  refer- 
ence may  be  ordered  when  both  parties  consent.  If  the 
statute  requires  a  trial  by  jury,  the  court  should  refuse  a 
reference  upon  the  stipulation  of  the  parties.^  There  are 
some  grave  objections  to  the  appointment  of  a  referee  in 
actions  for  divorce.  There  is  a  great  temptation  to  avoid 
an  intelligent  examination  of  the  witness  which  might  de- 

1  Green  v.  Green.  40  How.  Pr.  465.        <  Ashmead  u  Ashmead,  23  Kan. 
See,  also,  Aspinwall  v.   Sabin,  23    262. 

Neb.  73,  34  N.  W.  73.  s  Mangels  u  Mangels,  6  Mo.  Ap. 

2  See,  also,  §  745.  481. 

sWinansu  Winans,  134N.Y.  140,        "gimmons  v.  Simmons,   3  Rob. 
26  N.  E.  293.  (N.  Y.)  642. 


§  806.]  TEIAL    AND    APPEAL.  T59 

Yelop  some  defense  to  the  action.  If  it  appear  that  the 
offense  has  been  condoned,  or  there  is  some  evidence  of 
recrimination,  the  referee  taay  neglect  to  inquire  into  the 
matter,  and  the  evidence  will  not  be  taken,  so  that  the  court  , 
■will  be  apprised  of  the  defense  and  the  real  merits  of  the 
case.  The  state,  which  is  always  an  interested  party  in 
every  divorce  suit,  cannot  be  fairly  represented  in  a  proceed- 
ing before  a  referee  who  does  not  investigate  every  sus- 
picious circumstance  in  the  case.  There  is  a  general  belief, 
not  entirely  without  foundation,  that  reference  gives  too 
much  opportunity  to  fraud  and  collusion,  and  other  evils 
which  flow  from  hasty  and  secret  divorces ;  and  such  practice 
is  not  permitted  in  most  of  the  states.  Where  the  divorce 
suit  proceeds  under  the  chancery  practice,  the  courts  may, 
in  accordance  with  their  usual  mode  of  procedure,  refer  the 
suit  to  a  master  in  chancery.^  The  powers  and  duties  of 
referees  in  divorce  cases,  as  regulated  by  the  practice  in 
jSTew  York  state,  are  not  of  general  interest  to  the  profes- 
sion, but  may  be  determined  by  examining  the  provisions  of 
the  code  and  the  following  adjudications.^    This  practice  is 

iShillinger  v.  Shillinger,  14  111.  1070;  Jones  v.  Jones,  71  Hun,  519, 

147;  Stone  v.  Stone,  28  N.  J.  Eq.  24  N.  Y.  Supp.  1031,  and  cases  cited;. 

409;  Mangels  v.  Mangels,  6  Mo.  Ap.  Bice  v.  Eice,  33  W.  Dig.  258;  Smith 

481;  Graves  v.  Graves,  2  Paige  (N.  v,   Smith,  4  Monthly  L.   Bui.   57; 

Y.),  63;  Dodge  v.  Dodge,  7  Paige,  Scl^^•oeter   v.  Schroeter,    30  Hun, 

589;  Moore  u  Moore,  56  N.  H.  513;  330;  Harding  v.  Harding,  11  J.  & 

Ren  wick  v.  Renwick,  10  Paige,  430;  S.  37;  Bihin  v.  Bihin,  17  Ab.  Pr.  19; 

Hart    V.   Hart,   3  Edw.    Ch.    207:  Arborgast  u  Arborgast,  8  How.  Pr. 

Pugsley  V.  Pugsley,  9  Paige,  589;  297;  Turney  v.  Turney,  4  Edw.  Ch. 

Banta  v.   Banta,  3  Edw.  Ch.  295;  566;    Fairbanks    v.    Fairbanks,    3 

Lincoln  v.  Lincoln,  6  Rob.  635;  P.  Edw.   Ch.   308;   Glick  v.   Glick,  5 

^^  McGinnis,  1  Park.  387.  Month.  L.   Bui.   63;   Bloodgood  u 

2Ryerson    v.  Ryerson,   7   N.  Y.  Bloodgood,   Daily    Reg.,    Apr.    30, 

Supp.  736,  55  Hun,  191;   Goodrich  1884;  Gade  v.  Gade,  14  Ab.  N.  C. 

V.  Goodrich,  31  Weekly  Digest,  364;  510;  Greene  v.  Greene,  14  W.  Dig. 

Uhlmann  v.  Uhlmann,  17  Ab.  N.  C.  159;   Blott  v.  Ryder,  47  How.  Pr. 

236,  264;  Matthews  v.  Matthews.  6  90;  Thornton  v.  Thornton,  66  How. 

N.  Y.  Supp.  589,  53  Hun,  244;  Ross  Pr.  119;  Moore  v.  Moore,  24  W.  Dig. 

V.  Ross,   31   Hun,    140;    Griffin  v.  255;  Burgess  v.   Burgess,  53  N.  Y. 

•Grifian,  70  Hun,  73,  23  N.  Y.  Supp.  Supp.  (J.  &  S.)  545;  Bliss  v.  Bliss,  11 


760  TKIAL    AND   APPEAL.  [§  807.. 

permitted  under  the  statutes  of  some  other  states.'  In  New 
York  the  defendant  has  an  absolute  right  to  a  trial  by  jury 
where  the  adultery  is  alleged  as  a  .cause  for  divorce.  A  ref- 
erence cannot  be  ordered  without  the  consent  of  the  defend- 
ant in  such  cases.^  Where  the  parties  have  had  a  hearing 
before  a  referee  by  consent,  the  court  may  refuse  the  plaint- 
iff's request  for  a  trial  by  jury,  as  the  consent  to  a  reference 
is  a  waiver  of  the  right,  and  the  court  may  in  its  discretion 
refuse  to  grant  a  jury  trial.^ 

§  807.  Costs. —  There  is  no  absolute  rule  for  the  taxation 
of  costs  in  an  action  for  divorce.  In  general  it  may  be  said 
that  the  costs  are  not  always  taxed  against  the  defeated  party 
as  in  the  ordinary  suit.*  The  court  may,  in  its  discretion,  ap- 
portion the  costs  as  may  be  equitable  under  all  the  circum- 
stances of  the  case,  taking  into  consideration  the  merits  of 
the  case,  the  property  of  each  party,  and  aU  other  facts  which 
may  properly  influence  the  court  in  adjusting  the  rights  of 
the  parties.  Unless  there  has  been  an  abuse  of  this  discre- 
tion the  reviewina:  court  will  not  interfere  with  the  deter- 
mination  of  the  trial  court.'  Owing  to  the  identity  of  the 
parties  and  the  husband's  control  of  all  the  property,  the 
ecclesiastical  courts  generally  allowed  the  wife  her  costs 
whether  successful  or  not.'    For  similar  reasons  our  courts- 

Civil  Pro.    R.    94;    Waterman   v.  ^-yvinans  v.  Winans,   134  N.  Y. 

Waterman,  37  How.  Pr.  36;  Didell  140,  36  N.  E.  39.3. 

V.  Didell,  3  Ab.  Pr.  167;  MoCleary  «Shoop's  Appeal,  34  Pa.  333;  Ni- 

V.  McCleary,  30  Hun,  154;  Paul  v.  kirk  v.  Nikirk,  3  Met.  (Ky.)  433; 

Paul,  11  N.  Y.  St.  R.  71,  and  cases  Dugan  v.  Dugan,  1  Duv.  389. 

cited;    Smith    v.   Smith,   33  Civil  5  Sumner  r.  Sumner,  54  Wis.  643. 

Pro.  386;  s.  c,  7  Misc.  305,  37  N.  E.  e  Wells  v.  Wells,  1   Swab.  &  T. 

569;   Bliss  v.   Bliss,   13  Daly,  489;  308;  Evans  u  Evans,  1  Swab.  &  T. 

Harding  v.  Harding,  53  How.  Pr.  338;  Ditchfield  v.  Ditchfield,  1  P. 

238;  Ives  v.  Ives,  7  Misc.  338;  Mer-  &  M.  739;  Holt  v.  Holt,  38  L.  J. 

rill  V.  Merrill,  11  Ab.  Pr.  (N.  S.)  74.  Mat.   Cas.   13.      But  see  Jones  v. 

iHobart  v.  Hobart,  45  la.  501;  Jones,  3  P.  &  M.  333.  The  vrife  is 
Baker  v.  Baker,  10  Cal.  257.  See  allowed  the  costs  of  a  continuance 
statement  of  duties  of  referee  and  and  the  mileage  and  expenses  of  a 
effect  of  his  finding  under  the  code,  witness  sent  abroad  to  obtain  ma- 
Gibson  V.  Gibson,  24  Neb.  394.  terial  testimony.    Allen  v.  Allen, 

2  Batzell  V.  Batzell,  10  J.  &  S.  561.  3  Swab.  &  T.  107, 


§  807.]  TRIAL   AND   APPEAL.  761 

rarely  decree  costs  against  a  defeated  wife.^  If  the  wife 
has  been  unsuccessful  the  husband  may  be  compelled  to  pay 
the  costs,  and  if  his  conduct  has  been  improper  and  unjust 
the  decree  for  costs  "  may  be  a  salutary  admonition  to  him 
to  govern  himself  and  regulate  his  conduct  in  the  future."^ 
A  sound  public  policy  requires  that  unfounded  and  vexatious 
suits  for  divorce  should  be  discouraged,  especially  where  the 
object  of  the  proceeding  is  to  obtain  temporary  alimony.* 
This  kind  of  litigation  should  not  be'  encouraged  by  the 
knowledge  that  the  wife  will  recover  her  costs  at  all  events.* 
But  generally  the  wife  should  be  allowed  costs  if  she  has 
brought  the  suit  in  good  faith.^  Or,  if  she  has  been  com- 
pelled by  her  husband's  allegations  to  prepare  a  defense,  she 
should  be  allowed  her  costs,  although  the  husband  dismisses 
the  suit.*  Where  the  husband  withdraws  his  answer  and 
allows  a  default  to  be  taken  against  him,  it  is  an  abuse  of 
discretion  to  tax  as  costs  the  fees  and  expenses  unnecessarily 
incurred.'  The  costs  of  appeal  are  governed  by  similar  con- 
siderations, but  generally  the  wife  is  allowed  costs  even 
though  the  decree  is  affirmed,  if  the  appeal  is  taken  in  good 
faith.*  "Where  the  parties  are  equally  at  fault  each  should 
be  condemned  to  pay  his  own  costs.'    But  if  the  wife's  suit 

1  Coad  V.  Coad,  40  Wis.  393;  Ben-  ■•  See  Soper  v.  Soper,  29  Mich.  305; 
der  V.  Bender,  14  Or.  353,  13  P.  713;  German  v.  German,  57  Mich.  356; 
De  Rose  v.  De  Eose,  Hopkins  Cli.  Clark  v.  Clark,  4  Swab.  &  T.  111. 
100;  Thatcher  v.  Thatcher,  17  111.  » Bishop  v.  Bishop,  17  Mich.  211 
66;  McKay  v.  McKay,  6  Grant,  U.  De  Meli  v.  De  Meli,  5  Civil  Pro.  306 
C.  330;  Richardson  v.  Richardson,  Stafford  v.  Stafford,  53  Mich.  533 
4  Port.  467  r  Wood  v.  Wood,  3  Paige,  Ash  v.  Ash,  1893  Prob.  524. 

4.54;  Main  v.  Main,  50  N.  J.  Eq.  713,  ^  Thorndyke    v.    Thorndyke,    1 

35   A.   373.    The   wife   may  show  Wash.  Ter.  17.5.     See  contra,  Moore 

that  the  husband  is  not  entitled  to  v.  Moore,  33  N.  Y.  Supp.  451. 

sue  as  a  pauper.    Moyers  i;.  Moyers,  'Firman  u  Firman,  109  111.  63; 

58  Tenn.  495.    For  rule  of  costs  in  Kendall  v.  Kendall,   1  Barb.   Ch. 

action  forma  pauperis,  see  Moon  610. 

V.  Moon,  43  N.  J.  Eq.  403,  3  A.  350.  SRayner  v.  Eayner,  49  Mich.  600; 

2  Phillips  V.  Phillips,  37  Wis.  353;  Whitmore  v.  Whitmore,  49  Mich. 
Sumner  v.  Sumner,  54  Wis.  643.  417. 

»  See,  also,  Balkum  v.  Balkum,  83       ^  Cox  v.  Cox,  35  Mich.  461. 
Ala.  449. 


762 


TRIAL   AND   APPEAL. 


[§  808. 


is  brought  without  reasonable  grounds  the  court  may  deny 
costs.'  For  the  protection  of  clerks  and  other  oflBoers  the 
plaintiff  is  sometimes  required  by  rule  of  court  to  pay  all 
costs  before  the  decree  is  entered.  Such  rule  is  void  if  it  in 
any  way  interferes  with  the  discretion  of  the  court  in  ad- 
justing the  costs  that  each  party  should  pay.^  The  decree 
for  costs  may  be  enforced  by  attachment  for  contempt  or 
by  execution.* 

§  808.  New  trials. —  The  practice  of  each  state  will  gov- 
ern the  granting  of  new  trials.  Generally  the  courts  will 
grant  new  trials  as  in  other  cases  and  upon  the  same  grounds.* 
In  actions  for  divorce  the  courts  are  invested  with  a  wider 
discretion  than  in  other  proceedings  and  may  grant  a  new 
trial  under  circumstances  not  quite  adequate  in  other  pro- 
ceedings.^ The  provisions  of  the  code  relating  to  new  trials 
are  generally  applicable  to  proceedings  for  divorce  or  annul- 
ment of  marriage.*    A  new  trial  may  be  granted  as  to  the 


1  Flower  v.  Flower,  3  P.  &  M.  133; 
Heal  V.  Heal,  1  P.  &  M.  800. 

estate  V.  Bates,  5  O.  Ct.  Eep.  18. 

3  Cockef  air  v.  Cockef air,  28  Abb. 
JN.  Gas.  219,  7  N.  Y.  Sup.  170;  Mc- 
Inall  V.  Mclnall,  17  W.  N.  C.  312. 

*  Mercer  v.  Mercer,  114  Ind.  558, 
17  N.  E.  183;  Ewing  v.  Ewing,  34 
Ind.  468;  Forrest  v.  Forrest,  25 
N.  Y.  501;  Meyar  v.  Meyar,  3  Met. 
298 ;  Mercer  v.  Mercer,  1  Mao  Ar.  655 ; 
Sharon  v.  Sharon,  79  Cal.  633,  33  P. 
131;  Chapman  v.  Chapman,  139  111. 
886,  31  N.  E.  806;  Gardner  v.  Gard-. 
ner,  68  Mass.  485;  Gholston  v. 
Gholston,  31  Ga.  625;  Tierney  v. 
Tierney,  1  Wash.  568;  Poertner 
V.  Poertner,  66  Wis.  644;  Ferguson 
-y.  Ferguson,  3  Sandf.  307;  Amory  v. 
Amory,  6  Rob.  (N.  Y.)  514;  Conger 
V.  Conger,  77  N.  Y.  432;  Rindge  v. 
Rindge,  23  Ind.  81 ;  Matthi  v.  Mat- 
thi,  49  Cal.  90;  Ulrich  v.  Ulrich,  8 
Kan.  403;   Janvrin  v.  Janvrin,  58 


N.  H.  144;  Nutting  v.  Hurbert,  37 
N.  H.  346.    See,  also,  Fitzgerald  v. 
Fitzgerald,  3  Swab.  &  T.  400;  Fol- 
som  V.  Folsom,  55  N.  H.  78;  Good- 
rich V.  Goodrich,  2  P.  &  M.  393; 
Ahier  v.  Ahier,  10  P.  D.  110;  Taplin 
V.  Taplin,  13  P.  D.  100;  Lee  v.  Lee, 
2  P.  &  M.  409;  Hitchcock  v.  Hitch- 
cock, 2  Swab.  &  T.  513;  Morphett 
u  Morphett,  1  P.  &  M.  703;  Bacon 
V.  Bacon,  2  Swab.  &  T.  53;  Kolb's 
Case,  4  Watts,  154;  McGonigal  v. 
McGonigal,  30  New  Brunswick,  1 
Jago  V.  Jago,  8  Swab.  &  T.  103 
Dolby  V.  Dolby,  2  Swab.  &  T.  228 
Stoate  V.  Stoate,  2  Swab.  &  T.  384 
Hill  V.  Hill,  2  Swab.  &  T.  407. 

'Dunn  V.  Dunn,  11  Mich.  284; 
Bostwick  I'.  Bostwick,  78  Tex.  182. 

6  It  is  not  error  to  grant  a  new 
trial  on  account  of  newly  dis- 
covered evidence  that  the  plaintiff 
was  not  a  resident  of  the  state  at 
the  time  he  obtained  the  decree. 


§  809.] 


TEIAL   AND   APPEAL. 


763 


issues  relating  to  property  rights  without  disturbing  the  de- 
cree of  divorce.'  This  is  perhaps  the  safest  course,  as  in 
some  states  the  decree  of  divorce  is  an  adjudication  of  all 
property  rights  depending  upon  the  marriage  relation. 

§  809.  Appeal. —  The  right  to  appeal  from  a  decree  of  di- 
vorce must  be  derived  in  some  way  from  the  statute,  as  the 
right  did  not  exist  at  common  law.^  Generally  the  statutes 
permitting  appeals  in  actions  in  equity  are  held  applicable 
to  proceedings  for  divorce.^  A  statute  giving  the  right  of 
appeal  in  all  civil  actions  includes  actions  for  divorce.*  In 
some  states  the  decree  of  divorce  is  reviewed  on  appeal  as 
other  chancery  decrees.'  In  Indiana,  Kentucky  and  Ohio 
the  decree  of  divorce  is  final,  but  an  appeal  lies  from  orders 
granting  alimony.*    It  has  been  said  that  "  When  a  divorce 


Grant  v.  Grant  (S.  Dak.),  60  N.  "W. 
743. 

1  Lake  v.  Bender,  IS  Nev.  361. 

2  Simpson  v.  Simpson,  35  Ark. 
487.  See  discussion  of  this  point 
in  dissenting  opinion  of  Judge  Mc- 
Kee  in  Sharon  v.  Sharon,  67  Cal. 
199,  citing  statutes  and  cases. 

3  Sharon  v.  Sharon,  67  Cal.  185,; 
Brotherton  i\  Brotherton,  12  Neb. 
73;  Jungk  v.  Jungk,  5  la.  541. 

*  Sherwood  v.  Sherwood,  44  la. 
193.  But  see,  contra,  Lucas  v. 
Lucas,  69  Mass.  136. 

5  Fulton  V.  Fulton,  36  Miss.  517; 
Hitcbcox  V.  Hitchcox,  2  W.  Va. 
435;  Robbarts  v.  Robbarts,  9  S.  & 
R.  191 ;  Brentlinger  v.  Brentlinger, 
4  Rawie,  241;  Brom  v.  Brom,  2 
Whart.  94;  Hoffman  v.  Hoffman, 
.80  Pa.  417;  Hoffmire  v.  Hoffmire,  7 
Paige,  60;  Dunn  v.  Dunn,  4  Paige, 
435;  Smith  v.  Smith,  4  Paige,  432; 
Phelps  V.  Phelps,  7  Paige,  150;  Burr 
r.  Burr,  10  Paige,  166;  Jeanr,  v. 
Jeans,  3  Har.  (Del.)  136;  Sheaf e  v. 
Sheafe,  9  Fost.   (N.  H.)  269.    See, 


also,  Hanberry  v.  Hanberry,  29  Ala. 
719;  Hansford  v.  Hansford,  10  Ala. 
561;  Underwood  v.  Underwood,  13 
Fla.  434;  Krone  v.  LinvUle,  31  Md. 
138. 

6  Taylor  v.  Taylor.  25  O.  St.  71; 
Cox  V.  Cox,  19  O.  St.  503;  Tappan  v. 
Tappan,  6  O.  St.  64;  Bascom  v. 
Bascom,  7  O.  (part  3),  135;  Laugh- 
ery  v.  Lovighery,  15  O.  404;  Price 
r.  Price,  10  O.  St.  315;  Reed  v.  Reed, 
17  0-  St.  564;  Boggess  v.  Boggess, 
4  Dana,  307;  Maguire  v.  Maguire,  7 
Dana,  181;  Thornberry  v.  Thorn- 
berry,  4  Litt.  251 ;  Whitney  v. 
Whitney,  7  Bush  (Ky.),  530;  Pence 
V.  Pence,  6  B.  Mon.  496 ;  Bourne  v. 
Simpson,  9  B.  Mon.  454;  Woolfolk 
V.  Woolfolk  (Ky.),  29  S.  W.  742; 
Beall  V.  Beall,  80  Ky.  675;  Davis  v. 
Davis,  86  Ky.  32.  The  right  to  ap- 
peal is  now  denied  in  Indiana.  See 
Keller  v.  Keller  (Ind.),  38  N.  E. 
337;  McJunkin  v.  McJunkin,  3  Ind. 
30;  McQuigg  v.  MoQuigg,  13  Ind. 
394;  Ewing  v.  Ewing,  24  Ind.  468; 
Wooley  V.  Wooley,    13    Ind.   663. 


76i  TEIAL   AND    APPEAL.  [§  809. 

was  granted  upon  which  one  of  the  parties  contracts  new 
relations  and  a  third  party  acquires  rights,  it  cannot  be  that  a 
process  could  be  had  to  reverse  a  decree,  the  consequence  of 
which  would  be  the  severance  of  all  those  new  relations. 
Such  anomalous  mischief  cannot  be  engrafted  on  the  prac- 
tice of  our  courts  except  by  "blear  and  legislative  enact- 
ment." '  The  answer  to  this  objection  is  that  a  party  "  has 
no  right  to  contract  another  marriage  until  he  obtains  a 
final  decree  of  divorce,  and  this,  in  case  of  an  appeal,  cannot 
be  had  until  the  determination  of  the  appeal."  '^  The  right 
to  appeal  is  perhaps  more  valuable  in  actions  for  divorce 
than  in  other  actions,  for  not  only  property  rights  are  in- 
volved, but  also  the  more  important  rights  of  remarriage 
and  the  custody  of  children.  The  interest  of  the  state  is 
best  protected  by  permitting  either  party  to  appeal  and 
have  the  case  reviewed  in  the  appellate  court.  "Without  the 
right  to  appeal  an  innocent  party  may  be  greatly  wronged 
b}"^  an  erroneous  decree,  which  could  not  be  reversed.''  The 
time  within  which  an  appeal  can  be  taken  should  be  limited 
to  a  much  shorter  period  than  is  allowed  in  other  cases,  and 
such  seems  to  be  the  tendency  of  modern  legislation.*  A 
statute  prohibiting  appeal  in  actions  for  divorce  may  be  un- 
constitutional where  the  state  constitution  permits  the  right 
to  appeal  in  all  civil  cases.^ 

But  see  later  cases:   Willman  v.  125.     See     similar    argument    in 

Willman,  57  Ind.  500;  Sullivan  v.  Lucas  v.  Lucas,  69  Mass.  136,  in 

Learned,  49  Ind.   252;   Harrell  v.  which  the  right  of  review  is  denied. 

Harrell,   39  Ind.  185;    Cochnower  ^grotherton    v.    Brotherton,    12 

V.  Cochnower,  27  Ind.   253.     For  Neb.  73. 

the  right  to  review  by  error  or  ap-  3  gge  Davis  v.  Davis,  86  Ky.  32, 

peal  in  Missouri,  see  State  v.  Kansas  4  S.  W.  822. 

City  Ct.   of  Ap.,  104  Mo.   419,   16  *See  statutes  limiting  time  for 

S.  V/.  415;  Hansford  v.  Hansford,  appeal.    Pennegar  v.   S.,   3   Pick. 

34  Mo.  Ap.  262;  Salisbury  v.  Sails-  244,   10    S.   W.   305;    Hemphill    v. 

bury,  93  Mo.  683.  4  S.  W.  717;  Gold-  Hemphill,  38  Kan.  220;  Wilhite  v. 

ing  V.  Golding,  74  Mo.  133;  Nichols  Wilhite,  41  Kan.  154,  21  P.  174   See 

V.  Nichols,  39  Mo.  Ap.  391 ;  Childs  interpretation  of  this   statute  'in 

V.  Childs,  11  Mo.  Ap.  395.  Locke  r.  Locke  (R.  I.),  30  A.  433. 

1  Bascom  v.  Bascom,  7  O.  (part  3),  '••  Tierney    v.   Tierney,    1    Wash. 


§  809.]      ,  TBIAL   AND   APPEAL.  765 

An  appeal  will  not  lie  unless  a  decree  is  rendered.'  A  mere 
order  overruling  a  motion  for  nonsuit  is  not  appealable.'*  An 
order  vacating  an  order  for  temporary  alimony,  entered 
after  an  order  for  a  decree,  is  not  a  final  order.'  Where  by 
stipulation  the  issues  in  a  divorce  suit  are  tried  by  a  jury 
and  a  judgment  entered  on  the  verdict  ordering  that  the 
bonds  of  matrimony  be  dissolved,  but  reserving  all  questions 
relating  to  alimony  and  custody  of  the  children  to  be  deter- 
mined upon  a  future  hearing,  the  order  is  interlocutory  and 
not  final.*  An  order  vacating  or  modifying  a  decree  of  di- 
vorce is,  of  course,  a  final  order  disposing  of  the  case.'  The 
decision  of  a  lower  court  on  the  ruling  of  a  master  wiU  not 
ordinarily  be  reviewed  on  appeal.*  A  decree  of  divorce 
will  not  be  disturbed  where  the  only  question  raised  on  ap- 
peal is  the  allowance  of  alimony.'  The  failure  of  one  party 
to  appeal  from  decree  determining  the  issues  of  her  cross- 
bill will  not  preclude  her  from  resisting  the  claim  of  the 
other  party.*  The  interest  of  the  state  requires  that  the 
record  be  examined  and  the  appellant  defeated  if  he  has  not 
established  a  case.  This  reason  is  sometimes  overlooked 
and  the  whole  record  is  not  examined  unless  there  has  been 
a  cross-appeal.'  Generally  an  appeal  should  be  dismissed 
Avhere  the  appellant  has  availed  himself  of  the  benefits  of 
the  decree ;  and  this  is  especially  true  where,  pending  an 
appeal,  the  appellant  has  married  another.'"  Orders  grant- 
ing or  refusing  an  allowance  of  temporary  alimony  and 

Ter.  568;  Simpson  v.  Simpson,  25  6  O'Brien  v.  O'Brien,  19  Neb.  584, 

Ark.  487.  27  N.  W.  640. 

1  Pearson  v.  Pearson,  7  Peck,  22,  «Pullen  v.  Pullen,  41  N.  J.  Eq. 
•overruling    Pillow   v.    Pillow,    1.3  417. 

Tenn.  420.  '  Ensler  v.  Ensler,  72  la.  159. 

2  Christie  v.  Christie,  53  Cal.  26.  8Nadra  v.  Nadra,  79  Mich.  591, 44 
'McNevin  v.  McNevin,  63  Cal.    N.  W.  1046. 

186.  9HoflEwHoff,48Mioh.  281.    See, 

*  Lake  v.  King,  16  Nev.  215.    See,  also,  Birkby  v.  Birkby,  15  111.  120. 

also,  Hunter  v.  Hunter,  100  111.  519;  i«  Garner  v.  Garner,  38  Ind.  139; 

Knowlton  v.  Knowlton,  40  lU.  Ap.  Stephens  v.  Stephens,  51  Ind.  543. 

588.   But  see  contra,  Shaw  v.  Shaw,  See,  also,  Baylies,  New  Trials  and 

9  Mich.  164  Appeals,  18,  on  waiver  of  appeal. 


7QG  TEIAL   AND   APPEAL.  [§  809, 

suit  money;'  or  fixing  property  rights;^  or  granting  the 
custody  of  children,^  are  final  orders  subject  to  review.  Such 
orders  are  not  merely  interlocutory,  because  they  are  in  the^ 
nature  of  judgments,  and,  no  matter  how  erroneous  or  op- 
pressive, may  be  enforced  by  execution,  attachment,  injunc- 
tion or  proceedings  in  contempt.  The  right  to  have  such 
order  reviewed  on  error  or  appeal  would  afford  the  party 
no  relief,  since  years  might  and  generally  do  elapse  before  a 
final  decision  can  be  reached,  and  in  the  meantime  valuable 
rights  may  be  violated.  This  is,  however,  a  controverted 
question,  and  other  authorities  maintain  that  such  orders 
cannot  be  reviewed  until  a  final  decree  upon  the  merits  has 
been  rendered.*  The  question  is  sometimes  regulated  by  the 
code,  and  it  seems  that  such  orders  are  final  orders  within 
its  definition.  But  some  of  the  courts  place  a  difl'erent  and 
perhaps  erroneous  construction  on  the  code  provisions,  and 
hold  that  such  orders  do  not  involve  the  merits  of  the  case 
and  are  not  final.'  "While  such  order  is  a  step  in  the  pro- 
ceeding not  involving  the  merits  of  the  controversy,  it  is, 
nevertheless,  a  money  judgment  as  final  as  any  judgment  at 
law,  and  may  be  enforced  at  once  unless  an  appeal  is  per- 
mitted. 

For  abatement  of  appeal  on  the    31  P.  1130;  Boyd  v.  Boyd  (Cal.),  31 
death  of  one  party,  see  §  729a.  P.  1108. ' 


1  Sharon  v.  Sharon,  67  Cal.  185 
Lochnane  v.  Lochnane,  78  Ky.  467 
White  V.  White.  86  Cal.  216,  24  P. 
1030;  Hecht  v.  Heoht,  28  Ark.  92 
Golding  V.  Golding,  74   Mo.  133 


sPittman  v.  Pittman,  3  Or.  472;. 
Irwin  V.  Irwin  (Ky.),  28  S.  W.  664; 
Laplin,  In  re  (La.),  8  So.  615.  See 
contra,  Price  v.  Price,  55  N.  Y.  656; 
Rogers  V.  Rogers  (O.).  36  N.  E.  310; 


Blake  v.  Blake,  80  111.  532;  Foss  v.  Thomson  v.  Thomson,  5  Utah,  401. 

Foss,  100  111.  576;  Foote  v.  Foote,23  16  P.  400;  Waring  v.  Waring,  100 

111.  425;  Casteel  v.  Casteel,  38  Ark.  N.  Y.  570. 

477:  Blair  v.  Blair,  74  la.  311,  37  « Call  v.  Call,  65  Me.  407;  Russell 
N.  W.  385;  Williams  v.  Williams,  ».  Russell,  69  Me.  336 ;  Sparhawk  i;. 
29  Wis.  517;  Reed  v.  Reed,  17  O.  St.  Sparhawk,  120  Mass.  390;  Ross  v. 
563;  King  v.  King,  38  O.  St.  370;  Ross,  47  Mich.  186;  Cooper  v.  May- 
Graves  V.  Graves  (Ohio),  33  N.  E.  hew,  40  Mich.  528.  See,  also,  Hay- 
720.  wary  v.  Hayward  (Md.),  26  A.  537. 
2  Lake  v.  Lake,  17  Nev.  230,  30  P.  5  Aspinwall  v.  Aspinwall,  18  Neb.. 
878;  Storzynski  v.  Storzynski  (Cal.),  463,  25  N.  W.  633;  Wyatt  v.  Wyatt, 


§  809.]  TRIAL   AND   APPEAL.  76T 

The  amount  of  alimony  to  be  allowed  is  of  course  within 
the  discretion  of  the  court,  and  the  exercise  of  that  discre- 
tion will  not  be  reviewed;  but  where  the  facts  are  such  that 
on  general  principles  of  equity  the  wife  is  not  entitled  to 
alimony,  the  question  is  not  one  of  discretion  but  of  law, 
and  is  subject  to  review  by  the  appellate  court.^  It  then 
becomes  a  question  of  power  in  the  lower  court,  for  where 
there  is  no  power  there  is  no  discretion.'^  Ordinarily  the 
appellate  court  will  not  interfere  with  the  award  of  perma- 
nent alimony  made  by  the  trial  court  unless  there  has  been 
a  clear  and  manifest  abuse  of  discretion.' 

If  the  trial  court  has  evidently  overlooked  some  impor- 
tant element  in  computing  the  amount  of  alimony,  so  that 
the  amount  awarded  the  wife  is  manifestly  too  small,  or 
other\vise  inequitable,  the  appellate  court  may  modify  the 
decree  and  increase  the  amount.  But  as  the  condition  of 
the  parties  and  the  value  of  property  may  have  changed 
during  the  appeal,  the  safest  course  is  to  reverse  the  order 
for  further  proceedings  in  accordance  with  the  opinion.* 

While  the  amount  of  property  which  may  be  awarded  to 
the  wife  in  lieu  of  alimonj'  is  left  to  the  discretion  of  the 
trial  court,  the  decree  may  be  reviewed  on  appeal,  and  the 

2  Idaho,  219,  10  P.  238;  Earles  v.  Ind.  159;  Simons  u  Simons,  107  Ind. 

Earles,  26  Kan.  178.  197;  Henderson  v.  Henderson,  110 

1  Collins  V.  Collins,  71  N.  Y.  269.  Ind.  316;  Eastes  v.  Eastes,  79  Ind. 

2  Kennedy  v.  Kennedy,  73  N.  Y.  363;  Peck  v.  Peck,  113  Ind.  168,  15 
369;  Brinkley  v.  Brinkley,  50  N.  Y.  N.  E.  12;  Merceru.  Mercer,  114Ind. 
184;  Townsend  v.  Hendricks,  40  558;  Stewartson  v.  Stewartson,  15 
How.  143,  161.  See,  also.  Appeal  111.  145;  Davis  v.  Davis,  86  111.  Ap. 
from  order  for  temporary  alimony,  643;  Lane  v.  Lane,  22  111.  Ap.  529; 
§  862.  Temporary  alimony  on  ap-  Lind  v.  Lind,  37  HI.  Ap.  178 ;  Wooley 
peal,  see  §  863.  Attorney  fees  on  v.  Wooley,  24111.  Ap.  431;  Campbell 
appeal,  §§  879,  880.  Appeal  from  v.  CampbfeU,  73  la.  483,  35  N.  W. 
order  relating  to  custody  and  sup-  522;  "Wagner  v.  "Wagner,  39  Minn, 
port  of  children,  see  §  984.  394,  40  N.  "W.  360;  Cowan  v.  Cowan, 

•  3  Douglas  V.  Douglas,  81  la.  258,  10  Colo.  540,  16  P.  315;  "Wyatt  v. 

47  N.  "W.  93;  Rossman  v.  Rossman,  "Wyatt,  3  Idaho,  219,  10  P.  228. 

63  Mich.  429;  Cleghorn  v.  Cleghorn,  <  Yost  v.  Yost  (Ind.},  41  N.  E.  11. 
66  Cal.  309;  Buckles  v.  Buckles,  81 


768  TEIAL   AND   APPEAL.  [§  809. 

amount  changed,  where  there  has  been  an  abuse  of  discre- 
tion or  a  mistake  of  law  or  fact.'  Ordinarily  the  decree  is 
not  disturbed ;  but  there  are  many  instances  in  the  reported 
cases  where  decrees  dividing  the  property  have  been  changed 
by  the  appellate  courts.^  The  decree  of  distribution  may  be 
reviewed  in  some  states  without  an  appeal  from  the  decree 
of  divorce.  If  the  supreme  court  should  arrive  at  the  con- 
clusion that  the  divorce  should  have  been  denied,  the  decree 
of  distribution  may  be  changed,  and  the  defendant  awarded 
the  property.'  In  some  states  the  supreme  courts  have  no 
jurisdiction  to  disturb  a  decree  of  divorce;  but  in  such  cases 
the  distribution  of  property  or  the  amount  of  alimony  can 
be  changed.*  Where  the  decree  of  the  lower  court  was 
clearly  erroneous,  the  decree  cannot  be  reversed,  but  the  in- 
nocent wife  will  be  allowed  alimony.*  When  the  amount  is 
excessive,  or  the  trial  court  has  overestimated  the  husband's 
means  or  the  wife's  necessities,  or  the  decree  is  burdensome 
or  inequitable  in  view  of  the  circumstances  of  the  case,  the 
decree  will  be  reduced  or  modified  by  the  appellate  court.* 
Or,  where  alimony  is  denied,  the  reviewing  court  may  re- 
mand the  cause  for  further  proof  and  direct  the  lower  court 
to  award  alimony.'  An  examination  of  the  cases  last  cited 
will  show  that  the  reviewing  courts  exercise  considerable 
freedom  in  modifying  decrees  for  alimony.     Such  decrees 

1  Robinson  v.  Robinson,  36  Tenn.  ilton,  37  Mich.  603;  Ross  v.  Ross,  78 

440.  111.  403;  Cowan  v.  Cowan,  16  Colo. 

2Bovo  V.  Bovo,  63  Cal.  77;  Es-  835,  36  P.  934;  Hickling  v.  Hick- 
linger  V.  Eslinger,  47  Cal.  63;  Eiden-  ling,  40  IlL  Ap.  73;  Turner  v.  Tur- 
muller  v.  Eidenmuller,  37  Cal.  364;  ner,  80  Cal.  141;  Rourke  v.  Rourke, 
Brown  v.  Brown,  60  Cal.  579.  See,  8  Ind.  437;' Robinson  v.  Robinson, 
also,  Kashaw  V.  Kasha w,  3  CaL  313.  26   Tenn.   (7   Humph.)   440;   Will- 

SEnsleru  Ensler,  73Ia.  159.  iams    v.  Williams,  6   N.  Y.  Supp. 

*  Pence  v.  Pence,  6  B.  Mon.  496.  645;  Hardy  v.  Hardy,  6  N.  Y.  Supp. 

5  Davis  V.  Davis,  86  Ky.  33,4  S.  300;   Sleeper  v.  Sleeper,  65  Hun, 

W.  833.  454,  30  N.  Y.  Supp.  337;  Small  v. 

6Ensler  v.  Ensler,  73  la.  159,  33  Small,  38  Neb.  843,  45  N.  W.  348. 

N.  W.  384:  Andrews  v.  Andrews,  'Reynolds  v.  Reynolds,  93  Mich. 

69  111.  609;  McGrady  v.  McGrady,  104 
48  Mo.  Ap.  668;  Hamilton  v.  Ham- 


§  809.]  TEIAL    AND    APPEAL.  769 

are  not  to  be  accredited  as  the  ordinary  findings  of  a  trial 
court ;  for  there  may  be  both  errors  of  computation  and  of 
findings  of  fact,  where  the  evidence  is  conflicting,  as  well  as 
•errors  of  law.  "Whether  under  the  circumstances  alimony 
should  be  granted  is  a  matter  of  law.  The  amount  that 
■should  be  granted  is  a  matter  of  discretion.  To  modify  or 
reverse  the  order  for  alimony  the  appellate  court  should 
review  the  whole  testimony  relating  to  the  conduct  of  the 
parties,  for  the  amount  awarded  by  the  trial  court  may  have 
been  influenced  by  the  conduct  of  the  parties,  and  other  cir- 
cumstances disclosed  in  the  evidence  on  the  trial  of  the  cause 
for  divorce.  Ordinarily  the  decree  for  alimony  is  not  dis- 
turbed when  the  evidence  is  conflicting  and  the  order  is  not 
manifestly  inequitable. 

The  appeal  generally  brings  the  case  up  to  the  appellate 
court  for  trial  de  novo,  but  such  court  wiU  treat  the  finding 
of  the  court  as  equal  to  the  verdict  of  a  jury  and  will  not 
disturb  either  where  the  evidence  is  conflicting  and  contra- 
■dictory,  although  the  reviewing  court  might  reach  different 
•conclusions  of  fact.^  In  such  case  the  appellate  court  should 
be  fuUy  convinced  that  the  lower  court,  with  all  its  advan- 
tages for  ascertaining  the  truth,  has  rendered  a  decree  with- 
out suificient  evidence.''  Where  the  charge  of  adultery  is  not 
sustained  by  direct  proof,  and  the  finding  of  the  court  is 
based  upon  inferences  drawn  from  circumstances,  the  review- 
ing court  will  examine  the  evidence  to  ascertain  whether 
the  circumstances  warrant  the  inferences.  The  judgment 
win  be  reversed  if  the  evidence  is  insufficient,  for  such  evi- 
-dence  is,  in  the  eye  of  the  law,  no  evidence.^    The  rule  that 


iGibbs  V.  Gibbs,  18  Kan.  419 
Powers  V.  Powers,  30  Neb.  529 
■Callahan  v.  Callahan,  7  Neb.  38 


143  lU.  374,  30  N.  E.  672;  Corrie  v. 
Corrie,  46  Mich.  235;  Darrow  v. 
Darrow,  159  Mass.  363,  34  N.  E.  370. 


Fuller  V.  Fuller,  17  CaL  605;  Mo       2  Nicholas  v.  Nicholas,  50  Mich. 
Gonegal  v.  McGonegal,  46  Mich.  66 ;     163. 

Carter  v.  Carter,  153  IlL  434, 38  N.  E.        3  Pollock  v.  Pollock,  71  N.  Y.  137. 
:948;  Ayers  u  Ayers,  41  111.  Ap.  336, 
49 


770  TEIAl  AND   APPEAL.  '  [§  809^„ 

the  verdict  of  a  jury  will  not  be  disturbed  where  there  is ' 
some  evidence  to  support  it  does  not  apply  to  actions  for  di- 
vorce. The  judge  must  be  satisfied  the  cause  for  divorce  is 
proven  by  sufficient  and  satisfactory  evidence.'  The  decree: 
of  divorce  maybe  affirmed,  and  the  portion  of  the  decree  re- 
lating to  alimony  may  be  modified  or  reversed  and  remanded 
to  the  lower  court  for  a  new  trial.^ 

1  Paulson  V.  Paulson  (Tex.),  SI  S.       *  Reynolds  v.  Reynolds,  93  Mich, 
W.  778.  104 


PROCESS   AND   CONSTRUCTIVE  SERVICE, 


§  815.  Process  or  summons. 

816.  Waiver  of  process. 

817.  Constructive  service. 

818.  Defective     service,     when 

void. 

819.  The   affidavit    of    non-resi- 

dence. 

820.  Sheriff's     diligence     before 

publication. 


§  831.  The  notice. 

822.  Mailing  copy  of  summons 

and  petition  to  defendant. 

823.  Proof  of  publication. 

824.  Personal  service  out  of  the 

state. 
835.  Decree  based  on  construct- 
ive service,  how  vacated. 


§  815.  Process  or  summons. —  The  process  in  divorce 
suits  is  the  same  as  in  other  suits  unless  the  statute  contains 
some  special  provision  relating  to  the  subject.  In  every 
case  the  provisions  of  the  local  statute  must  be  followed,, 
otherwise  the  service  is  void  and  the  court  will  have  no 
jurisdiction  to  render  a  decree.  The  sufficiency  of  personal 
service  upon  the  defendant  in  a  divorce  suit  need  not  be 
noticed  here,  as  it  would  involve  questions  of  local  practice- 
and  the  interpretation  of  statutes  which  are  changing  from 
time  to  time.  The  cases  cited  below  may  be  consulted.'  The 
practice  as  to  the  form  and  service  of  the  summons  or  sub- 
poena is  generally  the  same  as  the  chancery  practice  where 
the  divorce  suit  is  classed  as  a  suit  in  equity.-  Where  the 
statutes  relating  to  divorce  contain  no  special  provision  con- 


1  Spafford  v.  Spafford,  16  Vt.  511; 
Leavitt  v.  Leavitt,  135  Mass.  191; 
Phelps  V.  Phelps,  7  Paige,  150;  Lyon 
V.  Lyon,  21  Conn.  185;  Temple  v. 
Temple,  81  Tenn.  160;  Brown  v. 
Brown,  15  Mass.  389;  Wanamaker 
V.  Wanamaker,  10  PhiL  466;  Ed- 
wards V.  Edwards,  3  Pitts.  333; 
Tillman's    Appeal,    99    Pa.     286; 


Harter  v.  Barter,  5  O.  318;  Smith 
V.  Smith,  6  Mass.  36;  Houston  v. 
Houston,  3  Mass.  159;  Rochester  v. 
Rochester.  1  Or.  307;  Young  v.. 
Young,  18  Minn.  72,  90;  Shetzler 
V.  Shetzler,  3  Edw.  Ch.  584;  Dunn 
V.  Dunn,  4  Paige,  435;  Bratton  v, 
Bratton,  79  Ind.  588. 
^  Welch  V.  Welch,  16  Ark.  537. 


T72  PROCESS   AND    CONSTEUCTIVE    SEEVICB.  [§  816. 

cerning  the  notice  in  divorce  suits,  the  summons  must  con- 
form to  the  statutes  or  provisions  of  the  code  relating  to 
suits  in  general,  and  must  be  indorsed  and  served  as  other 
summons.^  The  indorsement  must  show  the  nature  of  the 
relief  demanded ;  as,  "  suit  for  a  divorce  from  the  bonds  of 
matrimony ; "  or,  "  action  for  divorce  and  alimony ; "  or, 
"  action  for  a  separation."  Where  the  statute  directs  that 
the  summons  in  an  action  for  divorce  is  required  to.  be  in- 
dorsed as  follows:  "Action  to  annul  a  marriage;"  or,  "ac- 
tion for  a  divorce ; "  or,  "  action  for  a  separation,"  accord- 
ing to  the  relief  demanded,  the  indorsement  "  action  for  a 
divorce  "  on  a  summons  in  a  suit  for  a  separation  will  not 
render  the  order  for  alimony  void,  but  is  a  mere  irregularity, 
of  which  a  defendant,  who  has  permitted  a  default  to  be  en- 
tered against  him,  cannot  complain  unless  he  was  prejudiced 
thereby.^  Actual  notice  should  be  given  the  defendant  if 
possible,  especially  if  he  is  a  resident  of  the  state.'  A  fail- 
ure to  give  actual  notice  to  a  non-resident,  where  no  reason 
appears  for  not  doing  so,  is  a  suspicious  circumstance  which 
may  warrant  a  dismissal  of  the  case  where  the  evidence  is 
not  satisfactory  in  some  respects.''  As  in  other  cases,  a  gen- 
eral appearance  in  the  divorce  suit  is  a.  waiver  of  any  defects 
in  the  process  or  its  service.^  Where  there  has  been  no  serv- 
ice of  process,  either  actual  or  constructive,  and  no  appear- 
ance by  defendant,  the  court  has  no  jurisdiction,  and  it  is 
error  to  render  judgment.* 

§  816.  Waiver  of  process, —  It  is  not  an  evidence  of  col- 
lusion for  the  defendant  to  waive  the  issuance  of  process  or 
to  accept  service  of  it,  but  it  opens  the  way  for  fraud.  The 
court  should  be  satisfied  that  such  waiver  is  genuine,  and 

1  Brown  V.  Brown,  10  Neb.  349.        333;  Johnson  v.  Johnson,  13  Bush, 

2  Rudolph  V.  Rudolph,  19  Civil  485;  White  u.  White,  60  N.  H.  310; 
Pro.  434, 13  N.  Y.  Supp.  81.  Jones  v.  Jones,  108  N.  Y.  415. 

'  Labotiere  v.  Labotiere,  8  Mass.  *  Champon  v.  Champon,  40  La. 

383;  Smith  v.  Smith,  9  Mass.  433;  An.   38;     Jurgielwiez    v.    Jurgiel- 

Eandall  v.  Randall,  7  Mass.  503.  wiez,  24  La.  An.  77;  Townsand  v. 

*  Clark  V.  Clark,  48  Mo.  Ap.  157.  Townsand,  31  111.  540. 

*  Stanbridge  v.  Stanbridge,  31  Ga. 


§  yl7.]  PEOCESS   AND    CONSTKUCTIVE    SEEVICE.  173 

that  the  signature  of  the  defendant  was  not  obtained  .by 
force  or  fraud.'  Ordinarily  the  acceptance  of  service  is  good 
evidence  that  the  defendant  has  notice  of  the  suit,  and  is 
equal  to  an  appearance  in  the  suit.'^  In  New  Jersey  the 
acknowledgment  of  service  of  a  copy  of  the  citation  in  a 
divorce  suit  is  not  sufficient  unless  the  defendant  is  served 
with  a  copy  of  the  petition  and  also  enters  his  appearance.''' 
A  Avritten  admission  of  service  and  an  agreement  to  "  waive 
any  other  service  "  was  held  insufficient  where  the  defend- 
ant was  not  a  resident  of  the  state,  and  the  required  order 
of  publication  had  not  been  obtained.* 

§  817.  Constructive  service.— Every  state  has  the  power 
to  regulate  the  domestic  relations  and  determine  the  civil 
status  of  its  inhabitants,  and  this  involves  the  power  to  au- 
thorize and  prescribe  the  manner  of  obtaining  jurisdiction 
in  a  suit  to  change  the  marital  relation  of  a  party  who  re- 
sides in  the  state,  although  personal  service  cannot  be  had 
upon  the  other  party  to  the  marriage.  "  The  state,"  says 
Justice  Field  in  Pennoyer  v.  Neff^  "has  absolute  right  to 
prescribe  the  conditions  upon  which  the  marriage  relations 
between  its  own  citizens  shall  be  created,  and  the  causes  for 
which  it  may  be  dissolved.  One  of  the  parties,  guilty  of 
acts  for  which,  by  the  law  of  the  state,  a  dissolution  may  be 
granted,  may  have  removed  to  a  state  where  no  dissolution 
is  permitted.  The  complaining  party  would  fail  if  a  divorce 
were  sought  in  the  state  of  defendant,  and  if  application 
cannot  be  made  to  the  tribunals  of  complainant's  domicile 
in  such  case,  and  proceedings  be  there  instituted  without 
personal  service  of  process,  or  personal  notice  to  the  offend- 
ing party,  the  injured  citizen  would  be  without  redress."  * 

1  Rouse  u  Rouse,  47  la.  422;  Will-  of  publication.     See  criticism  in 

man  v.  Willman,  57  Ind.  500.  Van  Fleet,  Col.   At.,   §  466.      See 

2Keeler  u  Keeler,  24  Wis.  522.  Wright  v.  Mahaffey,  76  la.  90,  4* 

3  Stone  V.  Stone,  25  N.  J.  Eq.  445.  N.  W.  113. 

<  Weatherbee  v.  Weatherbee,  20  ^95  u.  S.  714. 

Wis.  499.    This  case  is  wrong  in  *  See,  also.  Hunt  v.  Hunt,  72  N.  Y. 

principle,  since  the  defendant  had  217;    Thompson  v.  Thompson,   91 

actual  notice,  and  waived  the  order  Ala.  591 ;  King  v.  King,  84  N.  C.  32. 


'T74  PEOOESS   ANB   CONSTE0CTIVE    SERVICE.  [§  817. 

One  state  cannot  invade  the  jurisdiction  of  another  to 
serve  its  process  therein  and  compel  the  non-resident  to  ap- 
pear before  its  tribunals  and  have  his  rights  determined  by 
its  own  laws.  This  being  true,  a  party  guilty  of  a  cause  for 
divorce  might  avoid  a  dissolution  of  the  marriage  by  desert- 
ing and  remaining  in  another  state.  A  wife  who  is  guilty 
of  adultery  might  avoid  divorce  and  loss  of  dower  by  re- 
moving .to  another  state.  Her  husband  could  not  obtain 
personal  service  on  her,  and  would  be  compelled  to  submit 
to  the  double  wrong  of  adultery  and  desertion.  The  inter- 
est of  the  state  and  good  public  policy  require  that  the 
marriage  relation  be  dissolved  where  the  parties  refuse  to 
live  together  and  to  perform  the  duties  of  the  marriage. 
Parties  who  live  in  separation  are  apt  to  contract  secret 
marriages  or  indulge  in  the  grossest  immoralities,  and  in- 
stead of  maintaining  a  home  and  rearing  children  become 
the  cause  of  public  scandal  and  a  menace  to  public  morals. 
The  deserted  party  has  a  right  to  free  herself  from  a  status 
which  will  prevent  her  from  marrying  again,  and  to  enforce 
this  right  the  state  has  found  it  expedient  to  dissolve  the 
marriage  in  certain  cases,  although  the  defendant  is  a  non- 
resident. In  order  to  do  this  the  proceeding  is  made  public, 
and  a  substituted  service  is  provided  for  to  notify  the  de- 
fendant, if  possible,  that  the  divorce  will  be  granted  for  cer- 
tain causes  and  on  a  certain  day,  unless  he  appears  and 
defends.  "The  right  of  the  legislature  to  prescribe  such 
notice  and  to  give  it  effect  as  a  process  rests  upon  the  ne- 
cessity of  the  case,  and  has  long  been  recognized  and  acted 
upon."  1  The  statutes  authorizing  constructive  service  in  all 
cases  where  the  defendtot  is  a  non-resident  include  suits 
for  diyorce.^  In  states  where  divorce  suits  follow  the  equity 
practice,  constructive  service  may  be  had  as  in  equity  cases.' 

1  Cooley's  Const.  Lim.  403.  For  3  Temple  v.  Temple,  81  Tenn.  160 
nature  and  effect  of  the  decree  of  Lawrence  v.  Lawrence,  7,3  111.  577 
diyorce  in  proceeding  in  rem,  see  McJunkin  v.  McJunkin,  3  Ind.  30 
§§  5,  37,  83.  Smith  v.  Smith,  30  Mo.  166. 

2  Lewis  V.  Lewis,   15  Kan.  181; 
Hare  v.  Hare,  10  Tex.  855. 


■§  818.]  PEOOESS   AND   CONSTEUOTIVE   SEEVIOB.  Y75 

If  the  defendant  is  a  resident  of  a  foreign  country,  the  prac- 
tice is  the  same  as  though  such  party  resided  in  another  state.^ 
§  818.  Defective  service,  when  Toid. —  It  has  generally 
been  held  that  the  requirements  of  the  statutes  for  impart- 
ing notice  must  be  strictly  followed,  otherwise  the  decree 
of  divorce  is  void  and  open  to  collateral  attack  in  any  pro- 
ceeding.* And  it  has  been  the  fashion  in  the  last  generation 
to  pick  out  some  small  defect  in  the  preliminary  steps  that 
must  precede  the  published  notice,  or  some  minor  technical- 
ity in  the  notice  or  in  the  proof  that  it  was  published  a  suf- 
ficient length  of  time,  and  overturn  the  decree,  regardless  of 
the  merits  of  the  case  and  regardless  of  the  fact  that  the 
defendant  was  a  non-resident  as  alleged.  Great  injustice 
has  been  done  to  innocent  parties  who  have  acquired  rights 
under  Such  decrees.  Titles  have  been  overturned,  securities 
destroyed  and  other  property  rights  disturbed.  Even  the 
home  and  the  marriage  relation,  ordinarily  guarded  by  every 
intendment  and  presumption  of  our  law,  have  been  destroyed 
by  so  simple  a  thing  as  a  mistake  in  a  preliminary  affidavit. 
The  absent  party  who  has  deserted  and  neglected  all  his 
marital  duties  and  acquiesced  in  the  decree  has  been  allowed 
to  destroy  a  happy  second  marriage,  to  bastardize  the  chil- 
dren and  wreak  a  most  enduring  revenge  by  securing  a  con- 
viction of  his  former  partner  on  a  charge  of  bigamy.  The 
only  reason  which  can  be  given  for  holding  a  decree  void 
where  there  has  been  a  defective  but  substantial  compliance 
with  the  statute  is  that  the  statute  directs  certain  things  to 
be  performed  in  a  certain  manner,  and  if  the  court  has  pro- 
ceeded without  these  prerequisites  it  has  acted  without  due 
process  of  law.'  This  is  only  true  where  the  defendant  ap- 
pears in  that  proceeding  and  demands  his  rights.  But  if 
the  defendant  is  a  non-resident,  the  object  of  the  statute  is 
fully  attained  if  a  proper  notice  is  actually  published  during 
the  required  time.  Suppose  all  the  prehminaries  before  the 
publication  have  not  been  compUed  with,  the  notice  will  give 

1  Trevino  v.  Trevino,  54  Tex.  261.       '  Morey  v.  Morey,  37  Minn.  365. 
■2  Eeno  on  Non-residents,  §  354. 


T76  PEOCESS   AND    CONSTEUCTIVE    SEEVICE.  [§  818, 

the  public  and  the  defendant  the  same  information.  Such 
defects  and  irregularities  have  been  held  to  be  sufficient  to 
deprive  the  court  of  jurisdiction  and  render  the  decree  of 
divorce  void.^  But  the  correct  interpretation  of  such  stat- 
utes is  believed  to  be  that  their  provisions  are  directory  and 
are  satisfied  with  a  substantial  compliance  which  fully  in- 
forms the  public  of  the  pendency  of  the  suit  and  the  nature^ 
of  the  relief  demanded,  and  that  such  irregularities  and  er- 
rors are  cured  by  the  decree  of  the  court.^  And  this  seems- 
to  be  in  conformity  with  recent  adjudications  where  decrees, 
of  divorce  were  attacked  in  collateral  proceedings.' 

In  every  case  where  there  has  been  constructive  service 
and  the  defendant  has  not  appeared,  the  court  should  not 
proceed  to  hear  the  plaintiff's  evidence  until  it  is  satisfied  by 
a  personal  examination  of  the  record  and  the  filings  in  the 
case  that  every  requirement  of  the  statute  has  been  complied 
with,  and  that  proof  of  such  compliance  is  entered  on  the 
records  of  the  court.  This  duty  should  not  be  performed 
in  a  hasty  and  perfunctory  manner,  as  is  generally  the  case 
where  a  court  is  hearing  ex  parte  applications  and  entering 
defaults.  The  question  of  jurisdiction  is  vital  and  all-impor- 
tant in  decrees  of  divorce.  Ordinary  decrees  affect  only  the 
parties  to  the  suit,  bat  the  decree  of  divorce  is  far  reaching'. 
It  will  not  only  dissolve  the  marriage  relation  but  will  de- 

1  Atkins  V.  Atkins,  9  Neb.  191;  Oodfrey  v.   Godfrey,  27  Ga.   466;, 

Werner  v.  "Werner,  30  lU.  Ap.  159;  Stone  v.  Stone,  35  N.  J.  Eq.  445. 

Collins  V.  Collins,  80  N.  Y.  1 ;  Morey  2  See  Van  Fleet,  Col.  At.,  §§  329- 

V.  Morey,  27  Minn.  265;  Beach  v.  and  330.    See,  also,  Cason  v.  Cason, 

Beach,  6  Dak.  871,  43  N.  W.  701;  31  Miss.  578;  Banta  v.  Wood,  33  Ig,. 

Wortman  v.  Wortman,  17  Abb.  Pr.  469;  Ward  v.  Lowndess,  96  N.  C. 

66;  Burton  v.  Burton,  45  Hun,  68;  867,  2  S.  E.  591. 

Cheeley  v.  Clayton,  110  tJ.  S.  701,  4  3  Carr's  Adm'r  v.  Carr,  93  Ky.  552, 

S.  C.  E.  328;  McBlain  v.  McBlain,  18  S.  W.  453;  In  re  Newman,  75 

77  Cal.  507,  20  P.  61.    See,  also,  di-  CaL   213,  16  P.   889;  Hemphill  v. 

Toroe  cases  requiring  strict  per-  Hemphill,  38  Kan.  220,  16  P.  457; 

f  ormance  of  the  statutory  require-  Calvert  v.  Calvert,  15  Colo.  390,  24 


ments.  Smith  u  Smith,  4  la.  266 
Pinkney  v.  Pinkney,  4  la.  334 
Pluminer  v.  Plummer,  37  Miss.  185 


P.  1048;  Ensign  v.  Ensign,  45  Kan. 
613,  26  P.  7;  Anthony  v.  Eice,  110 
Mo.  233, 19  S.  W.  433. 


§  819.]  PEOCESS    AND    CONSTRUCTIVE    SEEVICE.  77T 

termine  the  rights  of  heirs  for  several  generations;  the  title- 
of  the  husband  and  the  wife  to  the  real  estate  which  they 
own  or  may  acquire  during  the  life-time  of  both ;  the  legiti- 
macy of  children  of  a  subsequent  marriage ;  the  status  and 
property  rights  of  a  second  wife,  and  the  liability  of  the- 
parties  to  the  subsequent  marriage  to  a  prosecution  for  big- 
amy. These  rights  and  liabilities  are  before  the  courts 
though  the  parties  themselves  are  not.  Every  precaution 
should  be  observed,  therefore,  to  see  that  all  the  preliminary 
requirements  have  been  complied  with,  that  a  sufficient  no- 
tice has  been  published  for  the  required  length  of  time  in  a, 
paper  of  general  circulation,  and  that  proof  of  such  publica- 
tion appears  in  the  record.  If  such  proceedings  are  defect- 
ive or  irregular,  the  court  must  continue  the  cause  until  a, 
valid  service  is  obtained.'  But  if  the  proceedings  are  regu- 
lar the  court  must  proceed  to  take  the  proofs.^ 

§  819.  The  affidavit  of  non-residence. —  The  statutes  re- 
quire the  fact  that  the  defendant  is  a  non-resident  to  ap- 
pear in  the  record,  either  in  the  allegations  of  the  petition,* 
or  by  an  affidavit  that  personal  service  cannot  be  made  on 
the  defendant  within  the  state.*  Such  affidavit  is  jurisdic- 
tional, being  the  foundation  of  the  constructive  service ;  and 
it  is  held  that  a  decree  obtained  without  such  affidavit  wilt 
render  the  proceedings  erroneous,  although  all  the  subse- 
quent requirements  have  been  complied  with,  and  the  notice 
has  been  duly  published.^  The  omission  of  any  material 
aUegation  from  the  affidavit  will  render  the  service  void.* 

Chase  v.  Chase,  61  N.  H.  123.  5  Parish  v.  Parish,  33  Ga.  658;  At- 

2Kingt'.  King,  84N.  C.  32;  Stan-  kins   v.   Atkins,  9  Neb.   191.    Seer 

bridge  v.  Stanbridge,  31  Ga.  323;  contra,  Sweely  v.  Van  Steenburg,. 

Rogers  v.  Rogers,  18  N.  J.  Eq.  445.  69  la.  696,  26  N.  "W\  78;  Van  Fleet- 

3  Anon.,   5  Mass.   196;    Mace    v.  on  Col.  At.,  §  341,  and  reasons  given 
Mace,     7    Mass.    312;     Choate    v.  in  the  preceding  section. 
Choate,    3    Mass.    391;    Phelps    v.  « Atkins  v.  Atkins,   9  Neb.  191  f 
Phelps,  7  Paige,  150;  Bland  w  Bland,  Beach  v.  Beach,  6  Dak.  371,  43  N, 
3  P.  &  M.  233.  W.  701 ;  Wortman  v.  Wortman,  IT 

4  Morrison  v.  Morrison,  64  Mich.  Abb.  Pr.  66.    See,  also,  as  sustain- 
53,  30  N.  W.  903.  ing     text,    Harris    v.   Chaflin,   Sft 


118 


PEOOESS    AJTO   CONSTKUCTIVE    SEETTOE. 


[§  819. 


The  failure  to  show  that  any  diligence  was  used  to  ascertain 
defendant's  residence  renders  the  affidavit  fataUy  defective 
if  such  allegation  is  required  by  statute.^  But  minor  defects 
and  the  omission  of  allegations  that  do  not  affect  the  juris- 
diction of  the  court  will  not  render  thd  decree  void,  although 
the  statute  has  not  been  strictly  followed.^  The  affidavit 
should  contain  sufficient  facts  to  show  that'  the  cause  of 
action  is  one  in  which  constructive  service  may  be  had,  but 
it  need  not  contain  a  complete  statement  of  a  cause  of 
action.' 

The  rule  by  which  the  sufficiency  of  the  affidavit  of  non- 
residence  is  determined  is  stated  as  follows :  "  If  there  is  a 
total  want  of  evidence  upon  a  vital  point  in  the  affidavit  the 
court  acquires  no  jurisdiction  by  publication  of  the  sum- 
mons ;  but  where  there  is  not  an  entire  omission  to  state 
some  material  fact,  but  it  is  insufficiently  set  forth,  the  pro- 
ceedings are  merely  voidable."  * 


Kan.  543,  13  P.  830;  Towsley  v.  Mc- 
Donald, 33  Barb.  604;  Manning  v. 
Heady,  64  Wis.  630,  25  N.  W.  1; 
Drysdale  v.  Biloxi  Canning  Co.,  67 
Miss.  534,  7  So.  541 ;  Von  Eliade  v. 
Yon  Ehade,  2  T.  &  C.  (N.  Y.)  491. 

1  Yorke  v.  Yorke  (N.  Dak.),  55  N. 
"W.  1095. 

2Carr's  Adm'r  v.  Carr,  93  Kj. 
553,  18  a  W.  453;  Hynes  v.  Old- 
ham, 3  B.  Mon.  266;  StegaU  v.  Huff, 
54  Tex.  193. 

3  Calvert  v.  Calvert,  15  Colo.  390, 
34  P.  1043.  See  forms  of  affidavit 
in  Shedenhelm  v.  Shedenheto,  21 
Neb.  387;  Donnelly  v.  West,  66 
How.  Pr.  428;  O'Connell  v.  O'Con- 
nell,  10  Neb.  390.  Compare  Atkins 
V.  Atkins,  9  Neb.  191,  2  N.  W.  466, 
and  Claypoole  v.  Houston,  12  Kan. 
324.  See,  also.  Shields  v.  MiUer,  9 
Kan.  890;  Harris  v.  Chaflin,  36 
Kan.  543, 13  P.  830;  Essigu  Lower, 
120  Ind.  339,  31  N.  E.  1090;  Carrico 


V.  Tarwater,  103  Ind.  86,  3  N.  E. 
327;  Forbes  v.  Hyde,  31  CaL  343. 
Although  the  affidavit  of  plaintifiE's 
attdrney  may  be  valid,  as  was  held 
in  O'OonneU  v.  O'Connell,  10  Neb. 
390,  the  safest  course  for  the  at- 
torney is  to  require  the  plaintiff  to 
make  the  affidavit.  See  proceed- 
ings in  Morton  v.  Morton,  16  Colo. 
358,  27  P.  718.  In  New  York,  an 
order  of  publication  cannot  be  ob- 
tained upon  the  plaintiff's  affidavit 
alone.  Other  proof  that  defend- 
ant is  a  non-resident  is  required. 
Hallu  Hall,  10  N.  Y.  Supp.  238. 

*  Atkins  V.  Atkins,  9  Neb.  191. 
Section  78  of  the  Nebraska  Code 
provides  that,  "  before  service  can 
be  made  by  publication,  an  affida- 
vit must  be  filed  that  service  of 
summons  cannot  be  made  within 
this  state  on  the  defendant  or  de- 
fendants to  be  served  by  publica^ 
tion,  and  that  the  case  is  one  of 


§  820.] 


PEOCESS   AND    COKSTETJOTITE    SBEVICE. 


779 


§  820.  Sheriflf's  diligence  before  publication.—  Before 
service  by  publication  can  be  made  in  Colorado,  the  statute 
requires  the  "  usual  exertion  on  the  part  of  the  sheriff  to 
serve  the  summons."  The  object  of  this  statute  is  to  obtain 
a  personal  service  of  the  summons,  if  possible,  during  the 
life  of  the  writ,  and  it  is  necessary  that  the  sheriff  should 
retain  the  writ  until  return  day.^  And  it  is  held  by  the 
courts  of  that  state  that  unless  this  is  done  the  subsequent 
publication  of  notice  will  not  confer  jurisdiction  on  the 
court  to  render  a  decree.^  Such  decree  is  absolutely  void 
and  subject  to  collateral  attack,  and  is  not  rendered  valid 
because  it  was  not  attacked  within  the  statutory  time  for 


those  mentioiied  in  the  preceding 
section."  Section  79  requires  the 
notice  to  specify  when  defendants 
are  required  to  answer.  In  this 
case  the  affidavit  stated  that  the 
"  cause  is  one  of  those  mentioned 
in  section  77,"  but  did  not  state  the 
nature  of  the  cause  of  action.  The 
summons  published  did  not  notify 
the  defendant  the  date  when  she 
would  be  required  to  answer,  but 
notified  her  that  unless  she  an- 
swered on  or  before  a  certain  day 
"the  petition  would  be  taken  as 
true."  It  was  held  that  the  affida- 
vit and  notice  were  so  defective 
that  the  court  had  no  jurisdiction. 
It  would  seem  that  the  affidavit 
was  sufficient,  for  when  read  with 
the  petition  on  file  it  disclosed  that 
the  action  was  a  suit  for  divorce. 
The  notice  was  in  the  usual  form 
and  disclosed  when  the  defendant 
was  required  to  answer.  The  rec- 
ord of  this  case  discloses  enough 
to  sustain  the  jurisdiction  of  the 
court,  as  it  was  a  substantial  com- 
pliance with  the  statute. 
The  Code  of  Dakota  (sec.  104) 


provides  that,  "where  the  person 
on  whom  the  service  of  the  sum- 
mons is  to  be  made  cannot,  after 
due  diligence,  be  found  within  the 
territory,  and  that  fact  appeared 
by  affidavit  to  the  satisfaction  of 
the  court  or  judge  thereof,  .  .  . 
naay  grant  an  order  that  the  serv- 
ice be  made  by  the  publication  of 
a  summons.''  The  affidavit  stated 
that  defendant  could  not,  after 
due  diligence,  be  found  within  the 
territory,  and  that  the  affiant  did 
not  know  her  residence  or  where- 
abouts, and  could  not,  by  reason- 
able diligence,  ascertain  the  same. 
It  was  held  that  the  affidavit  was 
insufficient  and  the  decree  void  for 
want  of  jurisdiction,  because  the 
efforts  to  find  defendant  were  not 
stated  at  length  in  the  affidavit. 
Beach  v.  Beach,  6  Dak.  371,  43  N. 
W.  701.  This  ruling  was  not  nec- 
essary to  a  determination  of.  the 
case,  as  it  appeared  that  the  decree 
was  obtained  by  fraud  in  conceal- 
ing the  proceedings  from  the  wife. 

1  Palmer  v.  Co^dry,  3  Colo.  1. 

2  Vance  v.  Maroney,  4  Colo.  47. 


780  PKOCESS   AND    COKSTEUCTIVE    SEEVICE.  [§  821. 

setting  such  decree  aside.'  The  same  ruling  was  made  in 
Michigan  under  similar  facts.^  Judge  Cooley  dissented  and 
pointed  out  that  the  trial  court  had  the  right,  to  determine- 
the  jurisdictional  fact,  that  the  defendant  was  a  non-resident^ 
from  the  return  and  other  evidence  before  it.  The  statute^ 
did  not  require  anything  more  than  a  showing  that  the  pro- 
cess issued  could  not  be  served  by  reason  of  the  absence  of 
the  defendant  from  the  state.  "  I  cannot  think  it  possible," 
said  he,  "  that  it  was  ever  intended  jurisdiction  of  a  case 
should  depend  upon  a  circumstance  so  entirely  unimportant 
as  that  a  subpoena  which  could  not  be  served  was  left  in  the 
register's  office  before  its  return  day,  instead  of  being  kept 
in  the  office  of  the  sheriff  or  of  the  party."  In  all  of  the 
above  cases  the  non-residence  of  the  defendant,  which  is  the 
jurisdictional  fact  authorizing  the  court  to  order  publication,, 
was  shown  by  the  record.  This  fact,  and  the  publication 
of  a  notice  otherwise  valid,  would  seem  to  be  sufficient  to. 
give  the  court  jurisdiction  regardless  of  minor  defects  in  the 
proceedings  before  the  notice. 

§  821.  The  notice. —  The  notice  should  conform  to  the 
order  of  publication,  be  directed  to  the  defendant,  inform- 
ing him  of  the  nature  of  the  action  and  the  time  for  appear- 
ance, and  should  fulfill  all  the  statutory  requirements.^  A 
defective  notice  will  not  render  the  decree  void  unless  the 
defect  is  such  a,s  to  leave  some  material  fact  ambiguous  and 
uncertain.  If  the  time  for  appearance  fixed  by  the  notice 
does  not  give  the  defendant  the  full  time  allowed  by  stat- 
ute, the  decree  is  void  and  subject  to  collateral  attack.*  The- 
court  will  not  obtain  jurisdiction  if  the  notice  is  not  pub- 
lished the  required  length  of  time.^    As  a  defense  to  an  in- 

1  Clayton  v.  Clayton,  4  Colo.  410;  of  the  action.    Shedenhelm  v.  She- 
Israel  V.  Arthur,  7  Colo.  85,  1   P.  denhelm,  31  Neb.  387. 
438;  Cheeley  v.  Clayton,  110  TJ.  S.  ^Morey  v.  Morey,  27  Minn.  265,  6. 
701,  4  S.  C.  E.  338.  N.  W.  783.    But  see  Van  Fleet,  CoL 

^Soule  V.  Hough,  45  Mich.  418,  8  At.,  §  490,  and  cases  cited.    ' 

N.  W.  50, 159.  5  Tucker  v.  People,  122  111.  583,  11 

^It  need  not  state  the  cause  for  N.  E.  765;  Bachelor  v.  Bachelor,  1 

divorce,  but  must  state  the  nature  Mass.  356. 


§  S22.]  PKOOESS   AND   CONSTEOOTIYE    SERVICE.  781 

<li3tmeiit  for  bigamy  the  defendant  introduced  a  decree  of 
■divorce  obtained  upon  constructive  service,  and  which  re- 
cited that  the  decree  was  rendered  within  thirty-five  days 
after  the  first  publication,  while  the  statute  required  the 
first  insertion  to  be  at  least  forty  days  before  the  commence- 
ment of  the  term  of  court.  Three  years  afterward  this  de- 
■cree  was  amended  so  as  to  show  a  valid  notice,  but  such 
amendment  was  made  without  notice  to  the  defendant  in 
the  divorce  proceeding.  It  was  held  that  the  decree  and 
the  amendment  were  void,  having  been  rendered  by  a  court 
without  jurisdiction,  and  that  the  divorce  thus  obtained  was 
no  defense  to  the  indictment.^  A  decree  upon  default  ren- 
dered before  the  answer  day  fixed  in  the  notice,  although 
premature,  is  simply  erroneous  and  not  void.  It  can  be  cor- 
rected by  an  interested  party  on  motion  or  by  appeal,  but 
is  not  subject  to  collateral  attack.^ 

§  822.  Mailing  copy  of  summons  and  petition  to  de- 
fendant. —  It  is  sometimes  required  that  in  addition  to  the 
publication  of  summons  the  plaintiff  shall  mail  to  defendant 
a  copy  of  such  notice  together  with  a  copy  of  the  petition, 
and  it  is  held  that  the  decree  is  void  unless  such  copies  are 
mailed.'  This  part  of  the  service  is  not  required  if  the  plaint- 
iff file  an  affidavit  that  defendant's  residence  is  unknown. 
Such  affidavit  is  not,  however,  a  part  of  the  service,  but  it 
simply  furnishes  proof  to  the  court  that  the  statute  has  been 
complied  with  as  far  as  possible,  and  it  may  be  filed  at  any 
time  before  the  divorce  is  granted.*  Where  it  is  shown  that 
a  copy  of  the  summons  was  mailed  to  defendant  properly 
addressed,  the  defendant  may  show  that  she  has  received 
her  mail  at  such  address  with  uniform  regularity  for  several 

1  Tucker  v.  People,  122  111.  583,  11  v.  Carr,  6  la.  331;  Hallett  v.  Eight- 
N.  E.  765.  ers,  13  How.  Pr.  43;  Smith  v.  Wells, 

2  Jn   re   Newman,   75    Cal.   213;    69  N.  Y.  600. 

Carr's  Adm.  v.  Carr,  92  Ky.  552,  18  *  Ensign  v.  Ensign,  45  Kan.  012, 

S.  W.  453.  26  P.   7;  Larimore   v.  Knoyle,   43 

3  Lewis  V.  Lewis,  15  Kan.  181;  Kan.  338,  23  P.  487;  Hemphill  v. 
Odell  V.  Campbell,  9  Oreg.  298 ;  Stone  Hemphill,  38  Kan.  220,  16  P.  457. 

i:  Stone,  25  N.  J.  Eq.  445;  McGahen 


Y82  ■  PEOCESS   AND   CONSTETJCTIVB    SERVICE.  [§  823. 

years,  and  that  no  copy  of  the  summons  in  the  case  ever 
reached  her,  and  such  proof  will  create  the  presumption  that 
the  postage  on  the  letter  containing  the  summons  was  not 
paid  and  that  the  letter  was  not  mailed.^  "Where  a  court 
proceeded  to  render  a  divorce  upon  a  false  affidavit  that  the 
wife  is  a  non-resident  and  her  address  is  unknown,  the  de- 
cree is  void,  and  the  wife,  upon  an  application  for  letters  of 
administration  in  another  state,  may  show  that  such  affida- 
vit was  false,  and  that  she  was  a  resident  of  that  state  when 
the  decree  was  rendered  and  her  residence  was  known  to 
the  husband.^  If  the  decree  recites  the  mode  by  which  the 
defendant  was  notified  and  does  not  recite  that  a  copy  of 
the  notice  was  mailed  to  defendant  as  required  by  statute, 
there  is  no  presumption  that  any  other  or  further  notice  was 
given.'  This  defect  is  held  to  render  the  decree  void,  and  is 
subject  to  collateral  attack  in  another  state  in  an  action  for 
separate  maintenance.* 

§  823.  Proof  of  paMication. —  The  record  of  a  proceed- 
ing based  upon  publication  of  summons  should  contain  some 
proof  of  the  publication.  The  affidavit  of  the  editor,  pub- 
lisher or  printer  should  state  the  dates  of  the  first  and  last 
insertion  of  the  notice  and  the  number  of  publications.  The 
absence  of  this  affidavit  does  not  render  the  judgment  void 
if  the  record  recites  that  the  affidavit  was  filed.^  "Whether 
defects  in  the  affidavit  proving  publication  will  render  the 
judgment  void  is  a  controverted  question  not  within  the 
scope  of  this  work.  A  reference  to  some  of  the  authorities. 
upon  this  point  may  be  of  some  assistance.*    After  the  de- 

1  Morton  v.  Morton,  16  Colo.  358,  Ark.  384;   Dexter  v.  Cranston,  41 
27  P.  718.  Mich.  448;  Cillett  v.  Needham,  37 

2  Stanton  v.  Crosby,  9  Hun,  370.  Mich.  143;  Palmer  v.  McCormick, 

3  Werner  v.  "Werner,  30  111.  Ap.  28  Fed.  541;  White  v.  Bogart,73N.. 
159.                                              .  Y.  256;  Hahn  v.  Kelly,  ii  Cal.  391; 

*  Id.  .  Pierce  v.  Charleton,  12  111.  358 ;  Hay- 

5  0gden  V.  Walters,  12  Kan.  282..  wood  v.  Collins,  60  111.  328;  Fox  v. 

«Petti£ord  v.  Zoellner,  45  Mich.  Turtle,  55  111.  377;  King  v.  Harring- 

358,  8  N.  W.  57;  Steinbach  v.  Leese,  ton,  14  Mich.  532;  People  v.  Greene, 

27  CaL  295;  Scott  v.  Pleasants,  21  74  CaL  400,  16  P.  197;  Roberts  v. 


§  824.]  PROCESS   AND    OONSTBTJOTIVE    SEEVICB.  785 

cree  is  rendered  a  defective  aflfidavit  of  publication  may  he 
amended.* 

§  824.  Personal  service  out  of  the  state. —  The  defend- 
ant should  have  actual  notice  of  the  proceedings  against 
him  if  possible.  £00  parte  divorces  are  often  fraudulent,, 
and  an  imposition  upon  the  public  and  the  defendant  who' 
has  no  opportunity  to  be  heard.  Such  divorces  may  be  ob- 
tained by  a  suppression  of  facts  Avhich  would  prevent  the 
plaintiff  from  obtaining  a  decree.  Modern  legislation  has 
provided  many  safeguards  against  secret  divorces,  such  as 
requiring  notice  through  the  mails,  the  service  upon  defend- 
ant of  a  copy  of  the  petition  and  summons,  and  the  appoint- 
ment of  an  attorney  to  notify  defendant  and  represent  him  at 
the  trial.^  Many  of  the  states  provide  that  personal  service 
may  be  had  upon  a  non-resident  in  another  state  in  lieu  of 
publication  of  summons.  Personal  notice  to  a  non-resident 
will  give  the  decree  such  validity  that  it  will  be  recognized; 
in  the  state  where  the  defendant  resides  as  a  valid  adjudica- 
tion of  the  status  of  both  parties.'  This  form  of  notice  is  tO' 
be  preferred  because  it  is  less  expensive,  and  the  most  satis- 
factory proof  that  the  defendant  has  actual  notice  of  the  pro- 
ceeding. A  decree  based  on  such  service  is  liable  to  direct 
attack  only,  and  would  only  be  set  aside  on  a  strong  show- 
ing of  fraud ;  and,  the  record  being  less  complicated  than 
other  forms  of  service,  the  decree  will  seldom  be  liable  ta 
collateral  attack.  The  statute  providing  for  this  form  of 
constructive  service  should  be  liberally  construed  with  a 
view  to  promote  justice  and  give  effect  to  its  provisions.* 

The  failure  to  obtain  an  order  of  publication  before  ob- 

Flanagan,  31  Neb.  503,  33  N.  W.  2  Butler  v.  Washington,  45  La. 

563;  Wood  v.  Blythe,  46  Wis.  650.  An.  375,  13  So.  356. 

Improper  verification  will  render  3  Doughty  v.  Doughty,  28  N.  J. 

the  judgment  void.     Stanton   v.  Eq.  581 ;  Williams  v.  Williams,  58 

Ellis,  16  Barb.  319;  Senichau  Lowe,  Mo.  Ap.  617. 

74  111.  374.    But  see  contra,  Hart  v.  *  Personal  service  in  a  foreign 

Grigsby,   14   Bush,  543;   Mann  v.  country  is  a  substantial  compli- 

Martin,  14  Bush,  763.  ance  with  this  statute.    Green  -y, 

1  In  re  Newman,  75  CaL  313, 16  P.  Green,  13  Pa.  Co.  Ct.  E.  671. 
887. 


"784:  PKOOESS   AND    CONSTKUCTIVB    SERVICE.  [§  824. 

-taining  service  upon  a  non-resident  defendant  has  been  iield 
to  render  the  decree  void.^  The  only  reason  assigned  was 
that  the  service  was  not  in  compliance  with ,  the  statute.^ 
This  is  an  absurd  ruling,  giving  great  weight  to  a  mere 
-technicality  which  could  in  no  way  operate  to  the  prejudice 
of  the  defendant  who  has  notice  of  the  proceedings.  His 
remedy  is  to  appear  and  have  the  service  quashed  at  the 
icost  of  complainant. 

The  true  rule  in  cases  where  there  is  some  defect  in  the 
preliminary  steps  preceding  the  service  is,  that  the  court 
obtains  jurisdiction  by  a  substantial  compliance  with  the 
statute,  which  is  sufficient  to  warn  the  defendant  that  a  suit 
is  pending  against  him,  and  that  such  defects  do  not  render 
the  decree  void.'  The  service  will  not  be  quashed  before 
.decree  because  the  record  does  not  show  all  the  preliminary 
.steps  to  obtain  the  notice  and  the  authority  of  the  officer 
who  served  it.  "  The  object  of  the  statute,"  it  was  said, 
'^'  was  to  provide  for  an  easier  and  less  expensive  method  of 
effecting  service  on  non-residents  than  by  publication,  and 
.at  the  same  time  to  make  it  certain  that  the  defendant  had 
iuU  notice  of  the  suit.  To  carry  out  these  objects  we  must 
give  the  statute  a  liberal  construction,  disregard  technical- 
ities, and  supply  by  intendment  what  the  law,  in  other  cases, 
Avould  presume  had  been  done.  The  defendant  was  a  non- 
resident, and  this  authorized  the  service.  The  application 
for  the  notice  will  be  presumed  when  it  has  been  issued,  and 
especially  when  it  has  been  asked  for  in  the  petition.  It  is 
-also  a  fair  presumption  that  the  party  making  the  service  is 
competent  and  disinterested  until  the  contrary  is  proved, 
iind  the  signature  and  seal  of  the  officer  to  the  jurat,  as  made 
dn  the  present  case,  is  as  full  and  complete  a  certificate  as  is 
required  by  the   statute."  *    Personal  service  beyond  the 

1  McBlain  v.  McBlain,  77  Cal.  507,  f  endants  by  a  proper  personal 
•20  P.  61.  service  without  the  state  was  not 

2  See,  also,  dictum  in  Keeler  v.  in  the  alternative  form  as  directed 
Keeler,  34  Wis.  533.  by  statute,  but  this  defect  was  not 

3  In  Field,  In  re,  131  N.  Y.  189,  sufficient  to  deprive  the  ooiirt  of 
30  N.   E.  48,   the  order  directing  jurisdiction. 

service  upon  the  non-resident  de-       <  Jones  v.  Jones,  60  Tex.  451. 


'§  824.]  PROCESS   AND    CONSTEUCTIVE    SERVICE.  785 

limits  of  the  state  is  a  f orai  of  constructive  service,  and  must 
be  authorized  by  the  statute,  otherwise  such  service  will  not 
give  the  court  jurisdiction.^  Where  this  form  of  service  is 
had  the  proceedings  are  said  to  be  in  rem,  and  a  personal 
judgment  against  the  defendant  is  void,  as  in  other  cases 
where  the  judgment  is  based  upon  constructive  service.^ 
No  decree  for  alimony  or  division  of  property  should  be 
granted  where  jurisdiction  is  obtained  by  this  form  of  serv- 
ice.' A  decree  of  divorce  based  upon  this  form  of  service 
has  the  same  effect  as  if  based  upon  any  other  form  of  con- 
structive service.*  ^uch  decree  will  be  valid  in  every  state 
in  the  Union  so  far  as  it  determines  the  status  of  the  plaint- 
iff, and  in  all  the  states  except  New  York  it  is  considered  as 
a  complete  dissolution  of  the  marriage,  since  it  is  impossible 
that  a  union,  when  it  has  been  dissolved,  can  exist  as  to  one 
party.  In  New  York  the  decree  based  on  personal  service 
out  of  the  state  has  no  effect  upon  the  defendant  although 
she  has  actual  notice  of  the  proceedings.'  If  she  Avas  present 
at  the  taking  of  the  depositions  out  of  the  state,  this  will  not 
constitute  such  an  appearance  as  will  give  the  court  jurisdic- 
tion to  render  a  decree  affecting  her  status}  But  the  decree 
is  binding  on  defendant  if  a  general  appearance  is  made.^ 

'Burton  v.  Burton,  45  Hun,  68.  5 -Williams  v.  Williams,  6  N.  Y. 

Such  service  is  not  authorized  by  Supp.  645,  affirmed  in  130  N.  Y. 

a  statute  directing  that  a  subpoena  193,  29  N.  E.  98,  citing  authorities, 

be  "served  personally  on  defend-  eQ'Dea  v.  O'Dea,  101  N.  Y.  33,  4 

ant    wherever    found."    Ealston's  N.  E.  110. 

Ap.,  93  Pa.  133,  overruling  Harvey  ''  Jones  v.  Jones,  108  N.  Y.  405,  15 

V.  Harvey,  3  Week.  Notes  Cases,  N.  E.  707.    A  decree  of  divorce  ob- 

835;   Keene  v.  Keene,  3  id.    493;  tained  in  America  is  void  in  Eng- 

Love  V.  Love,  10  Phila.  453;  Sny-  land,  although  personal  service  was 

der  V.  Snyder,  10  id.  306.     See,  also,  had  upon  the  defendant  in  Eng- 

Briggsv.  Briggs,  6Kulp,  490;  Bisoh-  land.    Such  decree  has  no  effect 

off  V.  Wethered,  9  WalL  813.  upon  the  rights  of  an  Englishman 

2  Shepard  u  Wright,  113  N.  Y.  583.  whose  domicile  is  in  England,  and 

8  But    see    contra,    Thurston    v.  who  has  not  submitted  to  the  juris- 

Thurston  (Minn.),  59  N.  W.  1017.  diction   of   the   court.    Green   v. 

« Smith   V.   Smith,   43   La.    An.  Green,  1803  Prob.  89. 
1140,  10  So.  348. 
50 


786  PROCESS    AND    CONSTEUCTIVE    SEEVICE.  [§  823. 

§  825.  Decrees  based  on  constructive  service,  how  va- 
cated.—  "Where  the  defendant  is  not  served  with  summons 
within  the  state,  and  the  service  is  constructive,  the  decree 
will  be  set  aside  for  fraud  or  lack  of  jurisdiction,  as  in  other 
cases.  Thus,  where  the  plaintiff  deceives  the  court  by  falsely 
swearing  that  he  does  not  know  defendant's  present  address,, 
the  decree  will  be  set  aside.^  Another  form  of  fraud  which 
will  justify  the  vacation  of  a  decree  is  the  insertion  of  the 
notice  in  an  obscure  paper,  or  one  published  under  such  cir- 
cumstances as  to  be  inaccessible  to  the  defendant,  with  a. 
desire  to  obtain  the  divorce  without  actual  notice  to  defend- 
ant.* It  is  held  that  is  some  instances  a  default,  where  there 
is  constructive  service,  may  be  set  aside  as  though  there  had 
been  personal  service.'  It  would  seem  that  a  decree  of  di- 
vorce based  upon  constructive  service  might  be  set  aside 
under  the  same  circumstances  as  any  other  decree  thus  ob- 
tained.* But  in  some  of  the  states  it  is  held  that  the  provis- 
ion for  vacating  decrees  obtained  by  constructive  service 
does  not  apply  to  decrees  of  divorce.^  Thus,  where  the  stat- 
ute provided  that  constructive  service  may  be  had  in  divorce 
cases  as  in  other  cases,  and  another  section  of  the  code  pro- 
vided for  such  service  and  for  vacating  all  decrees  obtained 
by  such  service,  it  was  held  that  a  decree  of  divorce  could 
not  be  vacated  under  the  latter  provision.^    Such  decrees 

1  Britton  v.  Brittori,  45  N.  J.  Eq.  Van  Derveer  v.  Van  Derveer,  30  W. 
88,  15  A.  266;  Holmes  v.  Holmes,  Law  Bui.  (Ohio),  96;  Cralle  u  Cralle, 
63  Me.  430;  Brayant  v.  Austin,  36  79  Va.  183;  Crouch  v.  Crouch,  80 
La.  An.  808;  Crouch  v.  Crouch,  80  Wis.  667;  Edson  v.  Edson,  108  Mass. 
Wis.  667;  Johnson  v.  Coleman,  38  590;  Meyar  v.  Meyar,  3  Met.  399. 
Wis.  453;  Edson  u  Edson,  108  Mass.  sowenv.Sims,43Tenn.(3Coldw.) 
590.  544;  Gilruth  v.  Gilruth,  30  la.  335; 

2  Adams  v.  Adams,  51  N.  H.  888;  McJunkin  v.  McJunkin,  3  Ind.  80. 
Everett  v.  Everett,  60  Wis.  300;  eo'Connell  v.  O'Connell,  10  Neb. 
Hemphill  v.  Hemphill,  38  Kan.  230.  890.    This  interpretation  is  clearly 

3  Grown  v.  Grown,  58  N.  Y.  609,  wrong,  so  far  as  it  follows  Lewis  u 
reversing  1  Hun,  443;  Von  Rhade  Lewis,  15  Kan.  181,  which  was 
V.  Von  Rhade,  3  Sup.  Ct.  (T.  &  C.)  based  upon  special  statutes  provid- 
N.  Y.  491.  ing  for  personal  service  outside  of 

4  Lawrence  v.  Lawrence,  78  111.  the  state  and  was  controlled  by 
577;  Smith  v.  Smith,  20  Mo.  166;  special  provisions. 


§  825.]  PROCESS    AND    CONSTEUCTIVE    SERVICE.  787 

may  be  vacated  under  a  statutory  provision  that  no  pro- 
ceedings may  be  had  to  vacate  a  decree  of  divorce  if  com- 
menced within  six  months  after  the  rendition  of  such  decree,* 
and  the  same  relief  may  be  had  under  special  provision  in 
some  states.^  In  all  cases,  except  where  the  jurisdiction  is 
attacked,  the  moving  party  must  make  a  sufficient  showing 
of  a  valid  defense  to  the  divorce  proceeding  so  that  the  court 
may  be  able  to  see  that  the  divorce  would  not  have  been 
rendered  if  the  defendant  had  had  an  opportunity  to  be 
heard.'^  The  fact  that  defendant  was  a  resident  of  the  state 
will  render  the  judgment  erroneous  and  subject  to  vacation 
upon  the  defendant's  application.''  But  such  fact  does  not 
render  the  decree  subject  to  collateral  attack.*  "Where  the 
decree,  based  on  constructive  service,  is  attacked  by  a  motion 
to  vacate  and  open  the  decree  on  account  of  defective  pro- 
ceedings prior  to  the  publication  of  summons,  the  procedure 
conforms  to  the  civil  code.'  A  decree  by  default,  rendered 
before  the  time  allowed  in  the  notice  for  defendant  to  an- 
swer, is  merely  erroneous,  and  can  be  attacked  only  by  motion 
or  appeal,  -and  by  the  party  aggrieved.  It  is  not  subject  to 
collateral  attack.* 

iSee   Hemphill  v.  Hemphill,  38  v.   Day,   67  Tenn.   77;   Lawson  v. 

Kan.  320.  Moorman,  85  Va.  880,  9  S.  E.  150. 

2  Morton  v.  Morton,  16  Colo.  358,  See  contra,  Hartley  v.  Boynton,  17 
27  P.  718;  Britton  v.  Britton,  45  N.  Fed.  873. 

J.  Eq.  88,  15  A.  266;  Carr's   Adm.  For  effect  of  delay  and  estoppel 

V.  Carr,  93  Ky.  553,18  S.  W.  810;  on  application  to  vacate  decree,  see 

Larimore  v.  Knoyle,  43  Kan.  338,  §  1056. 

23  P.  487.     See,  also,  the  showing  Effect  of  marriage  after  decree, 

held  insufficient  in  Richardson  v.  §  1053. 

Stowe,  113  Mo.  33,  14  S.  W.  810.  Effect  of  death  of  one  of  the  di- 

3  Morrison  v.  Morrison,  64  Mich,  vorced  parties,  §  1054. 

53,  30  N.  W.  903.  Procedure  in  vacating  decree  ob- 

4  Martin  v.  Burns,  80  Tex.  676,  16    tained  by  fraud,  §  1057. 

S.  W.  1072.    See,  also,  Van  Fleet's  ^  For  forms  of  motions  and  order 

Col.   At,   §  398,   citing  Ogden  v.  vacating  decree  see  Atkins  v.  At- 

Walters,  13  Kan.  383;  Larimore  v.  kins,  9  Neb.  191;  Beach  v.  Beach,  6 

Knoyle,  43  Kan.  338 ;  Rayne  v.  Lott,  Dak.  371. 

00  Mo.  676,  3  S.  W.  403;  Hammond  «Iw  re  Newman,  75  CaL  313. 
V.  Davenport,  16  O.  St.  177;  Walker 


TEMPORARY  ALIMONY. 


850.  In  general 

851.  The  power  to  grant  tempo- 

rary alimony. 

Annulment  of  marriage. 

Evidence  on  application 
for  alimony — Proof  of 
marriage. 

Sam.e  —  Probable  cause  for 
diTorce  or  a  valid  defense. 

Same — Poverty  of  the  wife. 

Same  —  The  husband's  in- 
come. 
856a.  Defenses  to  application. 


852, 
853. 


854 

855. 
856. 


§857. 
858. 
859. 
860. 


861. 
863. 


Same  —  Misconduct  of  the 
wife. 

Sam^ —  Offer  to  support 
wife.     ( 

Amount  of  temporary  ali- 
mony. 

When  temporary  alimoi^y 
commences  and  termi- 
nates. 

How  the  order  is  enforced. 

Appeal. 

Temporary  alimony  on  ap- 
peal. 


§  850.  In  general. —  The  allowance  to  the  wife  for  her 
maintenance  during  a  suit  for  divorce  is  called  temporary 
alimony.  It  is  also  designated  by  other  terms  such  as  "ali- 
mony ad  interim  "  and  "  alimony  pendente  lite."  The  allow- 
ance at  common  law  was  based  upon  the  theory  that  the 
husband  had  aU  the  property  and  was  bound  to  support  the 
wife  according  to  his  rank  and  condition.  Modern  legisla- 
tion enlarging  the  rights  of  married  women  has  not  relieved 
the  husband  of  the  obligation  to  support  his  wife,  and  the 
temporary  alimony  of  the  common  law  is  not  affected  by 
such  legislation,  unless  it  be  that  the  wife  on  her  application 
is  now  bound  to  show  that  her  separate  property  does  not 
furnish  her  sufficient  support.^  In  nearly  every  respect  our 
temporary  alimony  conforms  to  that  of  the  common  law,  is 

1  Marker  v.  Marker,  11  N.  J.  Eq.  Ont.  Prac.  R.  570,  11  Ont.  Ap.  178; 

356;  Westerfield  v.  Westerfield,  36  Bradley  u  Bradley,  10  Ont.  Prac. 

N.  J.Eq.  196;  Verner  u  Verner,  63  E.  571;  Snider  v.  Snider,  11  Ont. 

Miss.  360;  Magurn  v.  Magurn,  10  Prac.  R.  140. 


§  851.]  TEMPOEAET   ALIMONY.  789 

for  the  same  purpose,  and  is  granted  for  the  same  reasons 
and  under  like  circumstances.' 

§851.  The  power  to  grant  temporary  alimony.— In 

some  of  the  early  cases  it  was  held  that  the  power  to 
grant  temporary  alimony  must  be  derived  from  statute  and 
that  our  courts  could  not  follow  the  ecclesiastical  practice, 
although  they  had  the  power  to  grant  divorces.^  After- 
Avards  the  power  to  grant  temporary  alimony  was  conferred 
by  legislation  in  the  states  where  such  power  was  denied.' 
But  it  is  now  conceded  that  such  relief  may  be  gi-anted  to 
the  wife  without  the  aid  of  statute.  Courts  of  equity  have 
inherent  power  to  compel  the  husband  to  provide  the  wife 
suiBcient  means  to  etiforce  her  rights  against  him,  or  to  de- 
fend her  rights  where  he  is  the  plaintiff.  To  deny  her  the 
means  to  sue  or  defend  is  in  effect  to  deny  her  all  remedy. 
The  power  to  grant  divorces  necessarily  carries  with  it  the 
incidental  power  to  allow  the  wife  temporary  alimony.  The 
courts  are  also  justified  in  following  the  practice  in  the  ec- 
clesiastical courts,  which  is  a  part  of  our  common  law.  But 
the  true  doctrine  is,  that  this  power  is  not  an  incident  of 
a  divorce  proceeding,  but  is  an  inherent  power  vested  in 
courts  of  equity  to  assist  the  wife  in  proceedings  where  the 
husband  and  wife  are  adverse  parties  and  the  wife  is  with- 
out means.  The  later  authorities  are  in  accord  with  this 
doctrine  where  there  is  no  provision  for  alunony,  and  also 

'In  some  instances  the  statute  385;  Coffin «. Dunham, 63 Mass. 404 

permits  alimony  only  when   the  Sandford  v.  Sandford,  3  E.  I.  64 

wife  is  plaintiff.    Morton  v.  Mor-  Parsons  v.  Parsons,  9  N.  H.  309 

ton,  33  Mo.  614.  Rowell  v.  Rowell,  63  N.   H.   223 

For  form  of  application  for  tem-  Quincy  v.  Quincy,  10  N.   H.  272 

porary  alimony,  see  §  746  and  §  760.  Whipp  v.  Whipp,  54  N.  H.  580 ;  Mor- 

Form  of  order  for  temporary  ali-  ris  v.  Palmer,  39  N.  H.  133. 

mony,  see  §  761.  '  Nary  v.  Braley ,  41  Vt.  180 ;  Reeves 

When    application    should     be  v.  Reeves,  83  N.  C.  348;  Lea  v.  Lea, 

made,  see  §  746.  104  N.  C.  603;  Miller  v.  Miller,  75 

2  Wilson  V.  Wilson,  3  Dev.  &  B.  N.  C.  70;    Webber  v.  Webber,  79 

S77;  Harrington  v.  Harrington,  10  N.  C.  573;  Taylor  v.  Taylor,  1  Jones 

Vt.  505;  Hazen  v.  Hazen,  19  Vt.  (N.  C),  538;  Thayer  u  Thayer,  9  R.  L 

603;  Shannon  v.  Shannon,  3  Gray,  877. 


790  TEMPOEAEY   ALIMONY.  [§  852. 

where  there  is  a  provision  for  permanent  alimony  but  the 
statute  is  silent  as  to  temporary  alimony .^  Accordingly  it 
is  held  that  in  the  absence  of  statute  the  courts  have  inher- 
ent power  to  allow  the  wife  alimony  in  various  proceedings 
in  which  she  is  an  adverse  party  to  her  husband  either  as 
plaintiff  or  defendant,  as  in  actions  to  annul  a  marriage ;  ^ 
in  actions  for  alimony  without  divorce ; '  in  actions  to  set 
aside  a  decree  of  divorce ;  *  on  applications  to  make  a  decree 
nisi  absolute ;  ^  on  applications  to  modify  a  decree  of  ali- 
mony;* and  on  appeal.'  It  is  also  clear  that  appellate 
courts  have  the  same  inherent  power  to  grant  temporary 
alimony  where  the  necessity  arises  on  appeal.^   - 

Temporary  alimony  may  be  granted  upon  certain  con- 
ditions fixed  by  the  court.  But  it  is  an  abuse  of  discretion 
to  allow  alimony  to  the  wife  only  upon  condition  that  she 
waive  a  matter  of  right,  as  a  trial  by  jury.' 

§  852.  Annulment  of  marriage. —  In  actions  to  annul  a 
marriage  the  court  has  the  inherent  power  to  award  tem- 
porary alimony  to  the  wife  whether  she  is  plaintiff  or  de- 
fendant. According  to  the  ecclesiastical  practice  such  ali- 
mony should  be  granted  to  the  wife  to  enable  her  to  make 
a  defense,  the  reason  being  that  the  husband,  by  virtue  of 
the  defaoto  marriage,  had  the  right  to  possess  all  the  prop- 

1  Griffin  v.  Griffin,  47  N.  Y.  134;  Ex  parte,  34  Ala.  455;  Everett  v. 
PeU-ee  v.  People,  40  lU.  834;  Gold-  Everett,  60  Wis.  300;  Caswellf.  Cas- 
smith  V.  Goldsmith,  6  Mich.  385;    well,  120  IlL  377. 

Jones  V.  Jones,  18  Me.  808;  Tayman  6  Foden  v.  Foden,  6  Rep.  (1894),  63. 

V.  Tayman,  2  Md.  Ch.  393 ;  Brinkley  «  Thurston  v.  Thurston,  38  HI.  Ap. 

V.  Brinkley,  50  N.  Y.  184;  Porter  v.  464;  Blake  v.  Blake,  68  Wis.  303; 

Porter,  41  Miss.  116;  Melizet  v.  Mel-  Blake  v.  Blake,  70  Wis.  238;  Helden 

izet,  1  Parsons,  77;  Banes  v.  Banes,  v.  Helden,  7  Wis.  296,  9  Wis.  557, 11 

8  Phila.  250;  MoGee  v.  McGee,  10  Wis.  554;    O'Brien  v.  O'Brien,  19 

Ga.  478;  Ryan  v.  Ryan,  9  Mo.  539;  Neb.  584. 

Grove's  Appeal,  68  Pa.  143.  '  See  §  862. 

2  See  next  section.  8  But  see  §  863. 

3  See  Alimony  without  divorce.  '  Lowenthal    v.    Lowenthal,    68 

4  Wilson  V.  Wilson,  49  la.  544;  Hun,  366,  disapproving  Sigel  v. 
Smith  V.  Smith,  3  Or.  363;  McFar-  Sigel,  19  N.  Y.  Supp.  906.  See,  also, 
landi7.McFarland,51Ia.565;Quelin  Strong  v.  Strong,  5  Rob.  (N.  Y.), 
D.  Quelin,  llPa.  Co.  Ct.  265;  Smith,  612. 


§  852.]  TEMPOEARY   ALIMONY.  791 

erty  of  the  wife,  and  it  was  presumed  that  she  had  no  prop- 
erty.' Our  courts  have  followed  this  practice  and  to  some 
extent  aifirmed  the  above  cases.^ 

In  the  leading  case  on  this  question  the  husband  contended 
that,  as  the  wife  had  another  husband  living  and  not  di- 
vorced, the  marriage  was  void  and  the  court  had  no  jurisdic- 
tion to  award  alimony.  The  appellate  court  held  that  the 
lower  court  had  the  same  power  in  regard  to  temporary  ali- 
m.ony  as  the  ecclesiastical  courts.  This  was  not  "  upon  the 
theory  that  the  court  of  chancery  of  this  state  was  vested 
with  the  jurisdiction  of  the  ecclesiastical  courts  of  England 
in  matrimonial  cases,  or  that  (except  in  special  cases  here- 
after referred  to)  it  ever  possessed  any  jurisdiction  in  cases 
of  divorce  other  than  that  which  was  conferred  by  our  stat- 
utes ;  but  upon  the  ground  of  the  general  equitable  juris- 
diction of  the  court,  and  also  that  when  our  statutes  did 
confer  jurisdiction  upon  the  court  of  chancery,  in  those 
actions  for  divorce  which  by  the  English  law  are  solely  cog- 
nizable in  the  ecclesiastical  courts,  the  grant  of  that  jurisdic- 
tion carried  with  it  hy  implication  the  incidental  powers 
which  were  indispensable  to  its  proper  exercise,  and  not  in 
conflict  with  our  own  statutory  regulations  on'  the  subject.' 
The  inherent  power  of  courts  of  equity  to  require  the  hus- 
band to  pay  temporary  alimony  is  said  to  exist  although  the 

1  Bird  V.  Bird,  1  Lee,  209,  decided  which  the  authority  is  said  to  be 
in  1753;  Smyth  v.  Smyth,  3  Add.  Ec.    statutory  only. 

254;  Portsmouth  v.  Portsmouth,  3  3  Griffin  v.  Griffin,  47  N.  Y.  137, 

Add.  Ec.  63;  Bain  v.  Bain,  2  Add.  followed  in  Brinkley  v.  Brinkley, 

Ec.  253;  Miles  v.  Chilton,  1  Rob.  Ec.  50  N.  Y.  184;  Lee  v.  Lee,  66  How. 

684.    See,  also,  Reynolds  v.  Rey-  307;  O'Dea  v.  O'Dea,  31  Hun,  441, 

nolds,  45  L.  J.  (N.  S.)  89.  affirmed  without  opinion,  93  N.  Y. 

2  North  V.  North,  1  Barb.  Ch.  241 ;  667.  But  see  contra,  where  the 
Vroom  V.  Marsh,  29  N.  J.  Eq.  15;  wife  applies  for  annulment  on  the 
Allen  V.  Allen,  8  Ab.  N.  C.  175;  ground  of  the  husband's  impo- 
Pord  V.  Ford,  41  How.  Pr.  169:  tency,  Bartlett  v.  Bartlett,  1  Clark 
Firth  V.  Firth,  18  Ga.  273,  overrul-  Ch.  460;  Bloodgood  v.  Bloodgood, 
ing  Roseberry  v.  Roseberry,  17  Ga.  59  How.  Pr.  43.  But  alimony  was 
189.  But  see  contra,  Kelley  v.  Kel-  allowed  in  a  similar  case.  AUen  v. 
ley,  161  Mass.  Ill,  36  N.  E.  837,  in  Allen,  59  How.  Pr.  27. 


V92  TEMPOEAKY   ALIMONY.  [§  853, 

code  has  provided  for  such  alimony  only  in  suits  for  divorce.' 
Where  the  statute  provides  for  temporary  alimony  in  suits. 
for  divorce  "from  the  bonds  of  matrimony,"  this  is  held 
to  include  nullity  suits,  since  in  common-law  language  the 
decree  of  nullity  was  from  the  bonds  of  matrimony.^  And 
similar  constructions  are  found  where  the  statute  does  not 
distinguish  between  annulment  and  divorce.' 
'  In  the  cases  cited  the  wife  is  a  defendant.  A  distinction 
is  made  where  she  is  the  plaintiff  and  alleges  that  the  mar- 
riage is  void  and  that  defendant  is  not  her  husband.  In. 
such  case  temporary  alimony  and  counsel  fees  are  refused.* 
But  where  the  parties  have  entered  into  a  void  marriage 
and  lived  together  for  some  time,  and  the  putative  husband 
has  acquired  the  wife's  property,  the  wife's  necessity  would 
be  the  same  as  in  the  ordinary  suit  for  divorce.  This  is  true 
where  the  statute  declares  the  marriage  valid  until  declared 
void  by  a  court  of  competent  jurisdiction.'  But  the  putative 
wife  is  not  entitled  to  alimony  where  it  appears  that  the  co- 
habitation was  illicit,*  or  it  is  admitted  that  she  is  the  wife 
of  another,  or  such  fact  is  not  contradicted  by  her  in  her 
showing  on  the  application  for  temporary  alimony.' 

§853.  Evidence  on  application  for  alimony  —  Proof  of 
marriage.— In  order  to  obtain  an  order  for  alimony,  costs 

1  Poole  V.  Wilber,  95  Cal.  339,  30  In  Freeman  v.  Freeman,  49  N.  J. 
P.  548.  Eq.  103,  the  husband  sued  for  a  de- 

2  Lea  V.  Lea,  lp4  N.  C.  603.  cree  of  nullity,  on  the  ground  that 

3  Brown  v.  Brown,  18  111.  Ap,  445;  the  wife  had  another  husband  liv- 
Barber  v.  Barber,  74  la.  301 ;  Van  ing  and  not  divorced.  On  the  ap- 
Valley  v.  Van  Valley,  19  O.  St.  588.  plication  for  alimony  it  appeared 

*  See  Meo  v.  Meo,  22  Abb.  N.  C.  that  the  wife  had  another  husband 

58,  where  the  wife  alleged  the  mar-  living,  but  she  claimed  that  her 

riage  was  void  on  the  ground  of  first  marriage  was  void  because  the 

fraud.   See,  also,  Isaacsohn  v.  Isaac-  first  husband  bad  a  wife  living  and 

sohn,  3  Mon.  Law  Bui.  73.  therefore  her  second  marriage  was 

5  See  Bardin  v.  Bardin  (S.  Dak.),  valid.    The  validity  of  the  mar- 

56  N.  W.  1069.  riage  of  the  first  husband  not  being 

«  Humphreys  v.  Humphreys,  49  shown  except  by  his  unsworn  state- 
How.  Pr.  140.  ments,  the  court  denied  temporary 

^  Collins  v.  Collins,  71  N.  Y.  269.  alimony. 


§  853.]  TEMPOEAKT   ALIMONY.  793 

and  counsel  fees,  the  wife  must  sustain  her  application  by- 
proof  of  — 

1.  A  marriage,  either  legal  or  de facto. 

2.  A  probable  cause  for  divorce  or  valid  defense.^ 

3.  Her  inability  to  support  herself  and  prosecute  or  de- 
fend the  action.^ 

4.  The  husband's  ability  to  contribute  to  her  support.' 
All  these  facts  must  be  established  in  order  to  entitle  her 

to  this  relief.  The  evidence  to  establish  these  facts  is  gen- 
erallj'  in  the  form  of  aiEdavits,  but  other  evidence  may  be 
received,  as  depositions,  the  petition  and  answer  in  the  case ; 
or  the  parties  may  be  examined  in  court  where  such  practice 
is  permitted  on  the  hearing  of  motions.  The  marriage  which 
will  justify  an  order  for  alimony  in  a  suit  for  annulment  of 
marriage  has  been  noticed  in  a  previous  section.* 

To  entitle  the  wife  to  temporary  alimony  she  must  es- 
tablish by  prima  facie  proof  that  the  marriage  relation 
exists ;  but  the  proof  need  not  be  of  the  degree  necessary 
to  establish  a  marriage  at  the  trial.  The  true  rule  in  some 
cases  is  said  to  be  that  the  wife  must  establish  "  a  fair  pre- 
sumption of  the  fact  of  marriage,"  or  "  a  reasonably  plain 
case  of  the  existence  of  the  marital  relation."  ^  Mr.  Bishop 
has  laid  down  the  following  rule :  "  To  justify  an  order  for 
temporary  alimony  there  must  be  a  marriage,  either  valid 
in  fact  or  by  the  parties  supposed  to  be  valid,  by  reason 
whereof  they  have  entered  upon  those  mutual  property  rela- 
tions which  govern  matrimonial  cohabitation.  Further  than 
this  it  need  not  be  good  in  law."  But  after  an  examination 
of  aU  the  reported  cases  the  writer  believes  the  true  rule  to 
be  that  temporary  alimony  must  he  granted  where  there  is  a 
real  issue  as  to  the  m,arriage  which  cannot  he  readily  deier- 

1  §  854.  *  Brinkley  v.  Brinkley,  50  N.  Y. 

2  §  855.  184;  Collins  v.  Collins,  71  N.  Y.  269, 

3  §  856.  For  the  nature  of  the  cited  with  approval  in  Bardin  v. 
application  for  alimony,  whether  Bardin  (S.  Dak.),  56  N.  W.  1089; 
by  petition  or  motion,  see  §  746.  Walsh  v.  Walsh,   4   Misc.  (N.  Y.) 

<  §  853.  448. 


794  TEMPOEAKT   ALIMONY.  [§  853. 

mined  without  a  trial.  The  court  can  seldom  determine 
from  the  showing  that  there  is  a  valid  marriage,  but  gen- 
■erally  reserves  this  question  until  the  trial.  It  is  clear  that 
the  court  should  not  pass  upon  an  ultimate  fact  in  the  case 
with  no  other  evidence  than  the  pleadings  and  affidavits. 
The  object  in  the.  examination  is  to  determine  whether  the 
woman  is  presenting  a  real  issue  in  good  faith,  and  whether 
the  fact  does  not  appear  from  the  showing  that  she  will  fail 
to  establish  a  marriage  at  the  trial.  To  avoid  the  payment 
•of  temporary  alimony  the  husband  must  make  it  appear 
that  there  is  no  marriage  relation,  and  no  real  controversy 
■concerning  the  existence  of  such  relation.* 

It  is  seldom  that  the  husband  is  able  to  make  such  a  show- 
ing -without  the  aid  of  the  wife's  admissions  that  no  mar- 
riage exists.  In  a  Michigan  case  the  Avife  alleged,  in  her  bill 
for  divorce  on  the  ground  of  cruelty,  that  she  had  married 
the  man  with  full  knowledge  of  the  fact  that  he  Avas  living 
apart  from  his  wife  under  an  agreement  of  separation.  No 
other  showing  was  made.  "  The  bill,"  said  the  court,  "  does 
not  bring  the  complainant  within  any  recognized  equity ; 
and  on  such  a  bill  no  provision  could  properly  be  made  for 
a,limony."  ^  No  temporary  alimony  should  be  allowed  where 
the  woman  admits  in  her  answer  that  she  had  a  husband 
living  at  the  time  of  the  alleged  marriage.     It  being  clear 

1 A  recent  writer  has  stated  the  riage,  from  compelling  a  man  to 
law  upon  this  point  as  follows:  "It  support  her  during  a  protracted 
has  been  held  that,  to  warrant  the  suit;  and  on  the  other,  to  prevent 
court  in  granting  an  order,  a  mar-  a  man,  by  his  mere  denial  of  mar- 
riage must  be  admitted  or  proved  riage,  from  relieving  himself  from 
to  the  satisfaction  of  the  court.  The  his  liability  to  support  his  wife.'' 
proof,  however,  need  not  be  so  full  Browne  on  Divorce.  There  is  a 
as  will  be  essential  to  obtain  a  final  tacit  admission  in  this  statement 
decree,  and  the  court,  when  in  that  the  object  of  the  investigation 
doubt  from  the  evidence  presented,  by  the  court  is  not,  in  fact,  to  de- 
will  usually  incline  at  the  outset  termine  that  there  is  a  marriage, 
to  favor  the  wife  and  grant  ali-  but  to  determine  the  good  faith  of 
mony.  It  will  seek,  on  the  one  the  wife's  application, 
hand,  to  prevent  a  mere  adventur-  ^  Lapp  v.  Lapp,  43  Mich.  387. 
ess,  by  her  allegation  of  a  mar- 


:§  853.]  TEMPOEAEY   ALIMONY.  795 

that  she  is  not  his  wife,  there  is  no  controversy  as  to  the 
marriage  relation,  and  it  is  error  to  award  her  alimony.' 
AVhere  the  husband  shows  that  there  is  a  prior  marriage 
undissolved,  and  this  fact  is  not  controverted,  the  court  must 
refuse  temporary  alimony ;  because  there  is  no  marriage  re- 
lation shown,  and  no  controversy  concerning  it.  Thus,  the 
correct  rule  in  such  cases  is,  that  "when,  in  answer  to  the 
allegation  of  marriage,  facts  are  disclosed  showing  that 
the  applicant  was  not  competent  to  contract  such  marriage, 
and  did  not  thereby  become  a  wife,  such  facts  must  be  denied 
or  explained  to  the  satisfaction  of  the  court.  If  left  uncon- 
troverted,  the  court  is  not  justified  in  making  the  order."  ^ 

According  to  this  rule  the  wife  will  be  entitled  to  alimony 
where  she  swears  that  at  the  time  of  her  second  marriage 
she  believes,  and  had  reason  to  believe,  that  her  first  husband 
was  dead.  The  reason  for  granting  her  alimony  in  such 
cases  is  that  "  to  adjudge  in  limine,  upon  ex  parte  affidavits, 
that  the  complainant  will  probably  succeed,  and  therefore 
to  withhold  from  the  defendant  the  means  of  resisting  the 
attack,  would  be  substantially,  to  a  certain  extent,  a  pre- 
judgment adverse  to  her  on  the  merits  without  lawful  evi- 
dence, the  consequence  of  Avhich  might  and  probably  would 
be  that  she  would  be  unable  to  defend  herself.  A  good  de- 
fense might,  by  such  means,  be  prevented,  and  a  bad  cause 
oonsequently  succeed." '  AV  here  the  prior  marriage  is  set 
up  as  a  defense,  the  wife  is  entitled  to  alimony  where  she 
shows  that  the  former  husband  was  absent  more  than  the 
required  number  of  years  before  the  second  marriage  took 

1  Appelton  V.  Warner,  51  Barb.  s  Vandegrif t  v.  Vandegrift,  30  N. 
•370.  J.  Eq.  76,  distinguishing  Ballentine 

2  Collins  V.  Collins,  71  N.  Y.  269;  v.  Ballentine,  1  HaL  Ch.  471 ;  Begbie 
approved  in  Freeman  v.  Freeman,  v.  Begbie,  3  Hal.  Ch.  98;  Dougherty 
49  N.  J.  Eq.  103,  23  A.  113.  See,  v.  Dougherty,  4  Hal.  Ch.  540;  Mar- 
also,  Collins  ?;.  Collins,  80  N.  Y.  1;  tin  V.  Martin,  4  Hal.  Ch.  563; 
Humphreys  u  Humphreys,  49  How.  Glasser  v.  Glasser,  38  N.  J.  Eq.  23. 
Pr.  140;  Brinkley  v.  Brinkley,  50  The  doctrine  in  this  case  is  ap- 
:N.  Y.  184;  North  v.  North,  1  Barb,  proved  in  Freeman  v.  Freeman,  49 
Ch.  241.  N.  J.  Eq.  103,  23  A.  113. 


796  TBMPOKAET  ALIMONY.  [§  85S. 

place,  and  consequently  the  second  marriage  is  void  only 
from  the  entry  of  the  decree.  Such  issue  raises  a  contro- 
versy about  the  marriage  relation  which  cannot  be  tried 
upon  aihdavits.^  The  fact  that  the  wife  alleges  the  mar- 
riage is  void  does  not  preclude  her  from  receiving  alimony, 
since  it  is  by  the  de  facto  marriage  that  the  husband  becomes 
liable  for  her  support.- 

It  is  clear  that  the  application  should  be  denied  where  the 
husband  shows  that  the  marital  relation  has  already  been 
dissolved  by  a  valid  decree  of  divorce.  The  validity  of  this 
decree  may  be  passed  upon  in  ruling  on  the  application.* 
But  if  the  jurisdictional  facts  are  disputed  by  the  wife,  the 
court  cannot  determine  the  question  without  a  trial,  and  for 
this  reason  should  allow  the  wife  temporary  alimony.* 

Where  no  ceremony  has  been  performed,  but  the  parties 
have  cohabited  as  husband  and  wife  for  some  time,  it  seems 
clear  that  the  A^alidity  of  the  marriage  cannot  be  determined 
by  affidavits ;  and  the  court  should,  in  such  case,  grant  tem- 
porary alimony.  And  this  seems  to  be  the  common  prac- 
tice in  such  cases. ^  In  some  instances  the  order  is  granted 
where  the  parties  formed  an  illicit  connection,  and  the  wife- 
claims  that  a  valid  common-law  marriage  was  subsequently 
entered  into,  or  that  a  marriage  took  place  after  the  man 
had  obtained  a  divorce  from  his  first  wife.*  But  in  one  case 
the  order  of  the  lower  court  was  reversed  where  the  husband 
denied  the  marriage.     The  supreme  court  undertook  to  de- 

1  Bardin  v.  Bardin  (S.  Dak.),  56  5  McFarland  v.  McFarland,  51  la. 
N.  W.  1069;  Poole  v.  Wilber,  95  565;  Hereforth  u  Hereforth,  3  Ab. 
Gal.  339.  But  see  cowfra,  Kinzey  V.  Pr.  N.  S.  (N.  Y.)  483;  Brinkley  v. 
Kinzey,  7  Daly  (N.  Y.),  460.  Brinkley,  50  N.  Y.  184;  Smith  v~ 

2  Cray  v.  Cray,  33  N.  J.  Eq.  35;  Smith,  1  Edw.  Ch.  255;  Smyth 
Vroom  V.  Marsh,  3  Stew.  Ch.  15.  v.  Smyth,  3  Ad.  Ec.  354;  Bradley 

3  Kirrigan  u  Kirrigan,  15  N.  J.  Eq.  v.  Bradley,  3  Chan.  Chamb.  (Ont.> 
146;  Kiefer  v.  Kiefer,  4  Colo.  Ap.  339;  McGrath  u  MoGrath,  2  Chan. 
506,  36  P.  631;  Shaw  v.  Shaw  (la.),  Chamb.  411;  Fisk  v.  Fisk,  22,  La. 
61  N.  W.  368.  An.  401.  ' ' 

■i  Starkweather  v.  Starkweather,  svihcent  v.  Vincent,  17  N.  Y. 
29  Hun,  488.  See  contra,  Ober  v.  Supp.  497,  16  Daly,  534;  Bowman 
Ober,  7  N.  Y.  Supp.  843.  v.  Bowman,  34  111.  Ap.  165. 


§  853.]  TBMPOEAKY    ALIMONY.  797 

termine  from  the  showing  made  whether  a  marriage  cere- 
mony had  been  performed.  The  showing  on  this  point  was 
very  conflicting ;  but  it  was  admitted  that  the  parties  had 
cohabited  as  husband  and  wife  for'  a  long  time,  and  that  he 
introduced  her  as  his  wife  on  several  occasions.  The  evi- 
dence was  so  conflicting  that  the  court  could  not  readily  de- 
termine the  real  issue  in  the  case.  But  the  court  decided 
such  issue  in  advance,  and  refused  temporary  alimony  be- 
cause no  marriage  was  admitted  or  proved.^  The  writer 
believes  the  doctrine  announced  in  this  case  is  unsound,  and 
the  method  pursued  is  contrary  to  the  authorities.  This 
opinion  does  not  appear  to  have  met  with  approval  else- 
where. 

In  the  famous  case  of  Sharon  v.  Sharon,'^  the  plaintiff  al- 
leged a  marriage  contract  in  writing,  which,  by  its  terms, 
was  to  be  kept  secret,  and  that  afterwards  the  parties  con- 
summated the  marriage  and  recognized  her  in  public  and 
private  as  his  wife,  but  had  subsequently  deserted  her 
and  neglected  to  stipport  her,  and  prayed  for  divorce  and 
alimony.  The  defendant  denied  the  marriage  and  also  de- 
nied that  he  ever  introduced  plaintiff  as  his  wife,  or  spoke 
of  her  as  such  in  the  presence  of  other  persons,  or  that 
plaintiff  ever  spoke  of  him  as  her  husband  in  the  presence 
of  others,  or  that  the  parties  were  ever  reputed,  among  their 
mutual  friends,  to  be  husband  and  wife,  or  that  there  was 
at  any  time  any  mutual,  open  recognition  of  such  relation- 
ship by  the  parties,  nor  any  pubhc  assumption  by  them  of 
the  relation  of  husband  and  wife.  The  answer  alleged  that 
the  contract  of  marriage  was  a  forgery.  It  was  held  not  an 
.abuse  of  discretion  to  award  temporary  alimony  under  such 
circumstances. 

Where  the  marriage  is  denied  temporary  alimony  should 
not  be  granted  to  the  wife  on  her  affidavit  alone.  Other- 
wise an  adventuress  could  by  perjury  compel  a  man  to  pay 
her  temporary  alimony  as  long  as  her  unfounded  suit  could 

1  York  V.  York,  34  la.  530.  2  75  Cal.  1. 


798  TEMPOEAEY  ALIMONY.  [§  854- 

be  "spun  out."'  The  denial  of  the  marriage  must  be  over- 
come by  further  proof.^  The  wife's  affidavit  is  sufficient, 
however,  where  the  showing  made  by  the  husband  discloses- 
that  the  parties  have  long  cohabited  as  man  and  wife,  and 
that  he  has  attempted  to  obtain  a  divorce.^ 

§  854.  Same  —  Probable  cause  for  divorce  or  a  valid 
defense. —  "When  the  wife  applies  for  temporary  alimony 
and  suit  money,  she  must  show  that  she  has  a  probable  cause- 
for  divorce,  or,  if  she  is  the  defendant,  that  she  has  a  valid 
defense  to  the  suit.*  This  is  required  to  prevent  imposition 
upon  the  court  and  to  protect  the  husband  from  being  com- 
pelled to  assist  the  wife  in  her  suit  where  she  has  no  cause 
of  action  and  the  suit  must  fail.  G-enerally  the  court  refuses 
to  enter  into  an  examination  of  affidavits  to  determine  the 
merits  of  the  case  before  allowing  alimony.^  But  the  plead- 
ings are  inspected,  and  alimony  is  refused  if  her  pleadings, 
do  not  state  a  cause  of  action  or  a  defense.*^  This  is  not  an 
absolute  rule,  however.  The  court,  being  free  to  exercise  its 
discretion,  may  award  alimony  where  the  wife's  pleading  is 
not  manifestly  defective,  especially  where  a  demurrer  has 
been  filed  by  the  husband  that  raises  a  question  of  law  that 
cannot  be  readily  determined.  In  such  case  the  wife  needs 
the  means  to  employ  counsel  to  protect  her  rights  and  also 

1  Vreeland  v.  Vreeland,  18  N.  J.  (6  Lea),  499;  Desborough  v.  Desbor- 
Eq.  43.  ough,  29  Hun.  593 ;  Friend  v.  Friend, 

2  Smith  V.  Smith,  61  la.  138.  65  Wis.  412;   Weishaupt  v.  Weis- 

3  Finkelstein  v.  Finkelstein,  14  haupt,  37'Wis.  631 ;  Bucki  v.  Bucki, 
Mont.  1,  34  P.  1090.  24  N.  Y.  Supp.  374;  Lishey  v.  Lishey, 

*  Lewis  V.  Lewis,  8  Johns.   Ch.  3  Tenn.  2;  Kennedy  v.  Kennedy,. 

519.  73  N.  Y.  369;  Carpenter  v.  Carpen- 

s  Sparks  v.  Sparks,  69  N.  C.  319;  ter,  19  How.  Pr.  539;  Ballentine  ■;;.- 

Cravens  v.  Cravens,  4  Bush,  435;  Ballentine,  1  Halst.  Ch.  471;  Ea w- 

Frith  t;.  Frith,  18  Ga.  273.  son   v.   Rawson,   37    111.   Ap.,491; 

eWorden  v.  Worden,  3  Edw.  Ch.  Ward  v.  Ward,  1  Tenn.  Ch.  263; 

387;   Jones  v.  Jones,  2  Barb.  Ch.  Browne  v.  Burns,  5  Scotch  Sess. 

146;  Rose  v.  Rose,  11  Paige,  166  j  Cas.  (2d  Ser.)  1288;   Erwin  v.  Er- 

Wood  V.  Wood,  3  Paige,  454;  Rob-  win,  4  Jones'  Eq.  83:  Methvin  v. 

ertson  v.   Robertson,  1  Edw.   Ch.  Methvin,    15    Ga.    97;    Shearin  v. 

360;  Burrow  v.  Burrow,  74  Tenn.  Shearin,  5  Jones'  Eq.  338. 


§  854-]  TEMPOEAET   ALIMONY.  799" 

separate  support  until  the  demurrer  is  determined.'  The 
necessity  for  alimony  is  the  same  whether  the  issue  to  be 
tried  is  one  of  law  or  of  fact.  Thus  a  demurrer  to  the  juris- 
diction of  the  court  will  not  preclude  the  granting  of  ali- 
mony and  suit  money .^  A  demurrer  against  the  wife's, 
pleading  should  be  filed  if  the  husband  wishes  to  object  tO' 
alimony  on  account  of  the  lack  of  probable  cause.  Other- 
^vise  the  court  may,  in  its  discretion,  refuse  to  determine  the 
sufficiency  of  the  wife's  bill  after  he  has  answered  without 
demurrer.'  It  is  not  an  abuse  of  discretion  to  grant  tempo- 
rary alimony,  although  the  case  is  pending  on  a  plea  of  for- 
mer adjudication.*  An  order  for  temporary  alimony  may 
be  made  without  waiting  for  a  trial  of  an  issue  concerning 
defendant's  insanity.^  Where  the  wife  is  defendant,  her  ap- 
plication for  alimony  and  suit  money  should  not  be  made 
until  her  demurrer  or  answer  is  on  file,  as  a  sound  judicial 
discretion  cannot  be  exercised  without  a  knowledge  of  the 
issues  which  she  will  raise  in  the  case.  The  meritorious  de- 
fense should  appear  in  the  pleadings  as  well  as  in  the  affi- 
davits submitted  with  her  application. 

In  New  York,  and  probably  in  some  other  states,  the  wife 
is  required  to  show  the  merits  of  her  case  by  affidavits  if 
she  applies  for  alimony  in  a  suit  for  separation.  This  method 
may  be  some  assistance  to  the  court  in  determining  the 
good  faith  of  the  application,  but  not  in  any  other  respect, 
as  the  merits  can  only  be  determined  at  the  trial.  A  review 
of  the  decisions  and  the  practice  in  this  state  cannot  be  en- 
tered into  with  profit.  But  a  reference  to  the  decisions  on 
this  point  may  be  useful.'    In  Illinois  the  probable  cause  is 

1  Langan  u  Langan,  91  Cal.  654,  108;  Turrell  v.  Turrell,  3  Johns.  Ch. 
37P.1092;  Disbroughn  Disbrough    391. 

(N.  J.  Eq.),  20  A.  960.  s  Chaffee  v.  Chaffee,  14  Mich.  463. 

2  Gray  v.  Gray  (N.  Y.),  38  N.  E.  i  Filer  v.  Filer,  77  Mich.  469,  43 
301,  affirming  28  N.  Y.  Supp.  856;    N.  W.  887. 

King,  Ex  parte,  27  Ala.  387;  Miller  ^Storke  v.  Storke,  99  Cal.  631,  34 

V.  Miller,  38  Fla.  453,  15  So.  332;  P.  339. 

Ronalds  «.  Ronalds,  3  P.  &  M.  359.  «Bissel    v.  Bissel,   1    Barb.   430; 

See,  also,  Mix  v.  Mix,  1  Johns.  Ch.  Solomon  v.  Solomon,  3  Eob.  669; 


800  TEMPOEAET   ALIMONY.  [§  851. 

determined  from,  affidavits  as  well  as  the  pleadings.^  The 
fact  that  a  large  number  of  counter-affidavits  are  filed  does 
not  necessarily  prove  that  the  court  abused  its  discretion  in 
awarding  alimony  and  suit  money,  as  the  fact  to  be  de- 
termined is  not  whether  an  offense  was  committed,  but 
whether  the  complainant  has  a  probable  ground  for  divorce.^ 
In  such  case  the  poverty  of  the  wife  may  prevent  her  from 
making  a  sufficient  showing.'' 

When  a  decree  is  rendered  against  the  wife,  the  trial  court 
may  allow  the  wife  additional  alimony  and  suit  money  to 
permit  her  to  perfect  her  appeal.  The  reason  for  this  al- 
lowance is  that  the  wife  must  be  placed  upon  an  equality 
with  her  husband  until  the  case  is  finally  determined.  Like 
any  other  litigant,  she  has  the  right  to  have  the  rulings  of 
the  lower  court  reviewed.  To  deny  alimony  under  such  cir- 
cumstances amounts  to  a  denial  of  justice  if  she  is  without 
means  to  perfect  and  present  an  appeal.^  In  such  case  the 
wife  must  show  that  the  review  is  prosecuted  in  good  faith, 
and  that  some  prejudicial  error  has  been  committed.'    The 

S.  C,  2  How.  Pr.  318;  Worden  v.        i  Wheeler  v.  Wheeler,  18  111.  Ap. 

Worden,  3  Edw.  Ch.  387;  Boubon  39;  Umlauf  v.  Umlauf,  22  111.  Ap. 

V.  Boubon,  8  Kob.  (N.  Y.)  715;  Hoi-  583;  Hardin  v.  Hardin,  40  111.  Ap. 

lerman  v.  Hollerman,  1  Barb.  64;  202;    Wooley   v.   Wooley,    24   III. 

Snyder  v.  Snyder,  8  Barb.  621 ;  Os-  Ap.  481 ;  Eawson  v.  Rawson,  37  111. 

good    V.    Osgood,    2    Paige,    621 ;  Ap.  491 ;  Jenkins  v.  Jenkins,  91  111. 

Fowler  v.  Fowler,  4  Abb.  Pr.  511;  168;  Johnson  v.  Johnson,  20  lU.  Ap. 

Whitney  v.  Whitney,  22  How.  Pr.  495;  Brown  v.  Brown,  18  111.  Ap. 

175;  Douglas  v.  Douglas,  13  Ab.  Pr.  446;  Burgess  v.  Burgess,  25  111.  Ap. 

(N.  S.)  291;   Scragg  v.  Scragg,  18  525. 

N.  Y.  Supp.  487;  Shaw  v.  Shaw,  5        ^Zoellner  v.  Zoellner,  35  111.  Ap. 

Miso.  497;  Frickel  v.  Frickel,  34  N.  404. 

Y.   Supp.   483;    Jones  v.  Jones,  3        '  Waters  u  Waters,  49  Mo.  385. 
Barb.  Ch.  146;  Thomas  v.  Thomas,        ^Whether  the  lower  or  appellate 

18    Barb.   149;    Carpenter  v.  Car-  court  has  jurisdiction,  see  §  863. 
penter,  19  How.  Pr.  539;  Laurie  v.        s  Friend  v.  Friend,  65  Wis.  413; 

Laurie,  9  Paige,  334;  Shore  v.  Shore,  Larkin  v.  Larkin,  71  Cal.  330,  13  P. 

2  Sandf.  715;  Meldore  v.  Meldore,  227;  Painter  u  Painter,  78  Cal.  635; 

4  Sandf.   721;   Wood  v.  Wood,  8  Krause  u  Krause,23  Wis.854;  Van 

Wend.   357;    Walsh  v.  Walsh,   34  Voorhis  v.  Van  Voorhis,  90  Mich. 

N.  Y.  Supp.  335.  276,  51  N.  W.  381;  Jones  v.  Jones,  3 


§  854:.]  TEMPOEAET   ALIMONY.  801 

trial  court  must  look  into  the  record,  and  from  this  and  the 
knowledge  of  the  case  obtained  at  the  trial  may  readily  de- 
termine whether  the  appeal  is  without  merits.  This  is  a 
delicate  task  where  the  court  has  rendered  the  decree  which 
is  questioned,  and  the  allowance  should  be  made  unless  it  is 
clear  that  the  appeal  is  frivolous  for  the  purpose  of  delay 
or  to  obtain  temporary  alimony  and  suit  money.  The  ap- 
pellate court  may,  in  granting  this  kind  of  alimony,  examine 
the  record,  although  the  question  of  a  meritorious  appeal  is 
necessarily  involved  in  the  appeal  itself.'  The  defendant 
may  file  counter-affidavits  in  the  appellate  court  showing 
the  merits  of  the  appeal.^  And  the  poverty  of  the  wife  and 
the  ability  of  the  husband  must  be  shown  if  such  fact  do  not 
appear  in  the  record.  Temporary  alimony  and  suit  money 
may  be  granted  where  the  husband  appeals  from  an  order 
for  temporary  alimony.^ 

The  court  has  a  wide  discretion  in  preventing  the  divorce, 
suit  being  used  as  a  means  to  obtain  alimony  and  counsel, 
fees  by  a  wife  who  has  no  intention  of  procuring  a  divorce, 
or  who  cannot  obtain  a  divorce  because  she  has  been  guilty 
of  misconduct  which  is  a  cause  for  divorce.*  The  power  to 
compel  the  husband  to  furiiish  means  to  carry  on  the  suit 
should  be  exercised  with  caution,  and  the  alimony  and  suit 
money  refused  where  the  apparent  object  of  the  wife  is 
to  obtain  money  and  not  to  prosecute  or  defend  the  suit.' 
"Where  there  is  grave  doubt  of  the  good  faith  of  the  appli- 
cation the  temporary  alimony  may  be  ordered  paid  into 
court  to  await  the  trial."  Where  ill  faith  or  collateral  pur- 
pose are  suspected  the  amount  awarded  should  be  small  until 
the  trial. 

P.  &  M.  333;  Holthoefer  v.  Holt-  *  Dicken  «.  Dicken,  38  Ga.  663. 

hoefer,  47  Mich.  643;  Whitmore  v.  'Glasser  v.  Glasser,  28  N.  J.  Eq. 

Whitmore,  49  Mich.  417.  33;   Keck  v.  Keck,  43  Barb.   515; 

I  Friend  v.  Friend,  65  Wis.  413;  Kirrigan  v.  Kirrigan,  15  N.  J.  Eq. 

Pollockt;.Pollock(S.D.),64N.W.165.  146;  Swearingen  v.  Swearingen,  19 

2Pleyte  v.  Pleyte,  15  Colo.  135,  35  Ga.  265. 

P.  25.  *See  Rogers  «.  Rogers,  4  Swab.  & 

»  Ex  parte  Winter,  70  CaL  291.  T.  83. 
61 


802  TEMPOEAET   ALIMONY.  [§  855. 

If  the  husband  has  been  declared  insane  for  more  than 
one  j'^ear,  and  the  wife  seeks  divorce  for  cruelty  inflicted 
during  the  year,  the  court  may  refuse  temporary  alimony.. 
"  The  order  implies  a  default  and  neglect  of  a  moral  obliga- 
tion on  the  part  of  the  defendant.  This  ought  not  to  be 
imputed  to  a  lunatic.  The  embarrassment  in  enforcing  such 
an  order  is  also  an  objection  to  making  it."  ^  The  probability 
that  the  cruelty  was  inflicted  while  the  defendant  was  insane 
is  also  another  reason  why  alimony  should  be  refused  in 
some  cases ;  as  the  wife  is  then  unable  to  show  a  probable 
cause  for  divorce.  The  guardian  of  an  insane  person  should 
be  made  a  party  to  the  suit ;  and  where  the  guardian  is  not 
joined  as  a  party,  an  order  compelling  him  to  pay  alimony 
and  counsel  fees  is  void  for  want  of  jurisdiction.^ 

§  855.  Same  —  Poverty  of  the  wife. —  The  wife  must 
make  it  appear  that  she  has  not  sufficient  means  to  maintain 
herself  and  pay  the  expenses  of  her  suit,  as  there  is  no  pre- 
sumption that  a  married  woman  is  without  means.  At  the 
common  law  the  wife's  property  was  generally  under  the 
control -of  the  husband,  but  not  always,  since  she  may  have 
property  by  virtue  of  a  marriage  settlement  or  other  means. 
The  ecclesiastical  courts  seem  to  have  allowed  temporary 
alimony  almost  as  a  matter  of  courfee,  without  much  inquiry 
as  to  the  wife's  circumstances.  But  as  this  relief  is  only 
granted  on  the  ground  of  necessity,  it  is  incumbent  upon  the 
wife  to  show  that  the  necessity  exists.  Especially  is  this 
true  at  the  present  time,  when  married  women  may  acquire 
and  possess  real  and  personal  property  in  their  own  right.' 
It  is  error  to  grant  alimony  without  such  proof,  as  there  is 

'  McEwen  v.  McEwen,  10  N.  J.  lowed  her  and  also  her  attorney's 

Eq.  386.  fees,  and  a  sum  to  the  guardian 

-In  Tlfifany  v.  Tiffany,  80  la.  123,  ad  litem.    It  was  held  that  an  ap- 

50  N.  W.  554,  the  guardian  ad  litem  peal  would  lie  from  this  order,  al- 

for  defendant  answered  setting  up  though  the  amounts  had  been  paid, 

insanity  as  a  defense  to  tlie  alleged  as  the  order  was  void,  being  made 

cruelty.    The  guardian  of  the  in-  against  one  not  a  party  to  the  suit, 

sane  husband,  on  the  order  of  the  ^Eoss    v.    Ross,   47    Mi  oh.     185; 

court,  paid  the  wife  the  sum  al-  Marker  v.  Marker,  11  N.  J.  Eq.  258. 


§  855.]  TEMPOEAKT   ALIMONY.  803 

no  presumption  that  she  has  no  property.'  To  grant  tem- 
porary alimony  without  proof  of  the  wife's  needs  is  an  abuse 
of  discretion.  "  The  fact  that  the  wife  is  destitute  of  means 
to  carry  on  her  suit  and  to  support  herself  during  its  pend- 
ency is  as  essential  as  any  other  fact  to  authorize  the  court 
to  award  temporary  alimony.  This  is  not  a  mere  matter 
of  discretion,  but  a  settled  principle  of  equity."  '^  But  the 
appellate  court  of  Illinois  refused  to  reverse  an  order  for 
alimony  where  there  was  no  proof  of  the  poverty  of  the 
wife.  "  There  is  no  presumption,"  it  was  said,  "  that  a  mar- 
ried woman,  sixteen  years  a  wife,  has  any  property.  As 
the  world  goes,  she  generally  has  none." '  This  court  seems 
to  have  overlooked  the  rule  of  evidence  that  the  burden  of 
proof  is  upon  the  moving  party  to  establish  all  the  essential 
facts  which  entitle  such  party  to  the  relief  demanded.'* 

Temporary  alimony  should  be  refused  if  it  appear  that 
the  wife  has  sufficient  income  to  support  herself  during  the 
trial,  to  employ  counsel  and  to  advance  the  necessary  costs 
and  expenses.*  It  is  immaterial  how  she  derives  this  main- 
tenance, if  she  is  able  to  prosecute  the  suit,  or  to  make  a 
defense.  The  courts  sometimes  refuse  to  assist  her  where 
friends  and  relatives  are  doing  so.^  If  the  parties  have 
been  living  apart  for  years,  and  the  wife  has  supported  her- 
self, no  alimony  should  be  allotted.'  It  is  clearly  unproper, 
and  perhaps  an  abuse  of  discretion,  to  compel  the  husband 
to  support  and  assist  the  wife  during  the  suit,  if  she  is  liv- 

ild.;    Maxwell  v.  Maxwell,    38  Kenemer,  26  Ind.  330;  Hardijig  v. 

Hun,  566.  Harding,  40  IlL  Ap.  202;   Morrell 

2  Collins  V.  Collins,  80  N.  Y.  1.  v.  Morrell,  2  Barb.  S.  C.  Rep.  480. 

3  Ayers  v.  Ayers,  41  IlL  Ap.  226.  *  Bradstreet     v.     Bradstreet,    6 
*Laciar  v.  Laciar,  6  C.  C.  (Pa^)  Mackey,  502;  Zeigenfuss  u  Zeigen- 

40-3;  Eroh  v.  Eroh,  4  Kiilp,  521 ;  Brad-  fuss,  21  Mich.  414;  Eaton  v.  Eaton, 

ley  V.   Bradley,    3  Chan.    Chamb.  2P.  &M.  51;  Burrows  t>.  Burrows, 

(Ont.)  329.  1  P.  &  M.  554 

5  Turner  v.  Turner,  80  Cal.  141, 22  7  Thompson  v.  Thompson,  1  P.  <S;5 

P.  72;  Westerfield  v.  Westerfleld,  M.  553;  George  v.  George,  1  P.  & 

36  N.  J.  Eq.  195;  Rawson  v.  Raw-  M.  554 
son,  37  lU.  Ap.  491;  Kenemer  v. 


804  TEMPOEAET  ALIMONY.  [§  855. 

ing  in  adultery  -with  the  paramour,^  or  where  sh.e  is  living 
with  a  second  husband  under  a  void  marriage.^  The  fact 
that  the  wife  has  separate  property  will  always  be  consid- 
ered. If  it  is  producing  an  income  sufficient  to  maintain  her, 
this  relief  is  refused.  If  it  is  non-productive,  or  is  not  pro- 
ducing a  sufficient  income,  the  husband  must  supply  the, 
deficiency.' 

Where  the  separate  property  of  the  wife  yields  no  in- 
come, but  can  be  sold  or  mortgaged  by  her,  the  court  may 
in  some  cases  refuse  alimony.  But  ordinarily  she  should 
be  assisted  in  the  suit  without  forcing  her  to  sell  or  incum- 
ber her  estate,  or  to  use  up  her  capital.*  If  her  income  is 
inadequate  she  is  not  compelled  to  exhaust  her  separate 
property  before  the  court  will  grant  temporary  alimony.' 
Where  the  husband  has  ample  means,  it  was  held  that  it 
was  not  an  abuse  of  discretion  to  award  temporary  alimony, 
although  the  wife  had  recently  sold  her  property  and  had 
a-n  ample  sum  of  money  on  deposit.^  But  generally  no  ali- 
mony should  be  allowed  in  such  cases,  especially  where  the 
wife  is  defendant  and  it  is  probable  that  the  husband  is  en- 
titled to  a  divorce.''  Settlements  upon  the  wife  and  agree- 
ments for  separation  are  considered  in  the  same  way;  and 
if  adequate  for  the  support  of  the  wife  no  temporary  ali- 

1  See  Holt  v.  Holt,  1  P,  &  M.  610 ;  «  Merritt  v.  Merritt,  99  N.  Y .  .343, 
Miller  v.  Miller,  3  Kulp  (Pa.),  6.  affirming  Merritt  v.  Merritt,  19  J. 

2  Coad  u  Coad,  40  Wis.  393.  See,  &  S.  540.  See  contra,  Coombs  v. 
also,  Stillman  v.  Stillman,  99  111.  196.  Coombs,  1  P.  &  M.  318. 

3  Rose  V.  Bose,  53  Mich.  585;  '  Where  the  wife's  property  con- 
Campbell  V.  Campbell,  73  la.  483;  sists  of  realty  in  another  state. 
Potts  V.  Potts,  68  Mich.  493;  Boss  valued  at  $1,200,  subject  to  a  tax 
V.  Griffin,  53  Mich.  8;  Killiani  v.  lien,  and  also  a  note  of  $50  of 
Killiam,  35  Ga.  186;  Briggs  v.  doubtful  value,  the  wife  will  be 
Briggs,  36  la.  383;  Hoffman  i;.  Hofif-  allowed  temporary  alimony  and 
man,  7  Rob.  (N.  Y.)  474.  attorney  fees;  the   property    not 

*  Harding  v.  Harding,  144  111.  588.  being  convertible  into  cash  and 

8  Allen  V.  Allen,  6  Rep.  (1894),  38;  she  being  unable  to  raise  money 

Miller  v.  Miller,  75  N.  C.  70.    See  soon  enough  to  make  her  defense 

contra,  Osgood  v.  Osgood,  3  Paige,  against  her  husband's  suit.    Sellers 

634;  Morrellu  Morrell,  3  Barb.  Sup.  v.  Sellers  (Ind.),  40  N.  E.  698. 
Ct.  Rep.  480. 


§  855.]  TEMPOEAET   AilMONT.  805 

mony  will  be  allowed.*  If  the  wife  has  received  alimony 
in  gross  on  a  decree  a  mensa  in  a  former  suit,  temporary  ali- 
mony must  be  denied,  unless  she  offers  to  restore  the  amount 
received.''  For  like  reasons  there  is  no  necessity  for  tem- 
porary alimony  where  the  wife  has  employment  and  can 
support  herself  and  prosecute  her  suit  from  her  own  income. 
If  her  income  is  barely  sufficient  to  support  herself,  she 
should  be  allowed  suit  money.' 

Temporary  alimony  is  said  to  be  a  provision  for  the  future, 
and  not  a  payment  of  amounts  expended  or  debts  incurred 
on  the  wife's  credit.*  Such  an  allowance  can  only  be  made 
for  the  payment  of  past  expenses  where  it  is  necessary  to 
enable  the  wife  to  further  prosecute  or  defend  her  case.^  If 
the  wife  has  been  able  to  pay  expenses  with  means  derived 
from  her  own  separate  estate,  or  upon  her  credit,  there  is  no 
necessity  for  the  allowance.  The  fact  that  she  has  been  able 
to  pay  her  expenses,  or  to  obtain  money  on  her  own  credit, 
is  the  best  evidence  of  her  ability  to  carry  on  the  suit  with- 
out assistance.^  Where  the  wife  has  incurred  costs  and  at- 
torney's fees  and  her  suit  is  dismissed,  the  court  may  gener- 
ally make  an  order  to  pay  such  expenses.' 

1  Sharon    v.  Sharon,  75  Cal.   1 ;  '  Marker  v.  Marker,  11  N.  J.  Eq. 

CampbeU  v.  Campbell,  73  la.  483;  256. 

Cooper  V.  Cooper,   17    Mich.   205;  •'Beadleston  v.  Beadleston,  103 

Bartlett  v.  Bartlett,  1  Clark's  Ch.  N.  Y.  402,  approved  in  McCarthy  u 

460;  Miller  v.  Miller,  43  How.  Pr.  McCarthy,  137  N.  Y.  500,  33  N.  E. 

125.    See  leading  case  of  PoweU  v.  550:  Emerson  v.  Emerson,  26  N.  Y. 

Powell,  3  P.  &M.  186,  and  cases  cited.  Supp.  292;  Atherton  v.  Atherton, 

2McDonough  v.  McDonough,  36  82  Hun,  179. 

How.  Pr.   193.    The  wife  had  ob-  ^  gee  Bohnert  i).  Bohnert,  91  CaL 

tained  a  divorce  for  cruelty,  and  428,  27  P.  732. 

the  decree  allowed  her  $100  in  f uU  *  Loveren  v.  Loveren,  100  Cal.  493, 

of  aU  claims  for  alimony.     In  the  35  P.  87;  Mudd  v.  Mudd,  98  Cal. 

suit  by  her  husband  for  divorce  on  822;   Lacey  v.  Lacey  (Cal.),  40  P. 

the  ground  of  adultery,  it  was  held  1056. 

that  the  former  decree  was  a  bar  'Under  a  statute  providing  that 

to  further  allowance,  but  an  at-  "  pending  a  petition  for  divorce  the 

torney  fee  was  allowed  with  the  court  or  the  judge  thereof  in  vaca- 

privilege  of  alimony  on  restoring  tion  may  make    .    .    .    such  order 

amounts  received  on  the  decree.  relative  to  the  expenses  of  the  suit 


806  TEMPOEAET  ALIMONY.  [§  856. 

§  856.  Same  —  The  husband's  income.—  The  court  should 
not  grant  temporary  alimony  without  some  proof  of  the  hus- 
band's means  or  ability  to  earn  money,  or  what  was  known 
in  the  ecclesiastical  courts  as  the  husband's  "faculties."^ 
Generally  the  affidavits  of  the  wife  and  of  others  who  are 
acquainted  with  the  husband  will  be  sufficient.^  The  hus- 
band's income  should  be  shown,  whether  derived  from  his 
capital  or  labor,  or  both.  If  he  has  no  property,  a  portion 
of  his  salary  wiU  be  awarded  to  the  wife.  If  he  is  able  to 
earn  fair  wages,  the  court  may  award  temporary  alimony, 
although  he  is  unemployed,  as  the  liability  to  support  the 
wife  is  a  personal  liability,  in  no  way  dependent  upon  his  in- 
come or  capital.  The  husband's  poverty  will  rarely  be  a 
defense  to  the  wife's  application.'  Especially  where  he  is 
plaintiff ;  for  he  is  not  entitled  to  a  divorce  if  his  wife  has 
no  opportunity  to  make  a  defense.*  But  in  our  courts  the 
wife  may  appear  as  a  witness  against  the  husband  and  de- 
fend herself  in  that  way,  or  the  court  may  appoint  an  attor- 
ney to  appear  for  the  wife  if  the  husband  is  destitute  of 
means  to  carry  on  the  suit  and  assist  the  wife.  If  the  show- 
ing of  the  husband's  poverty  and  inability  is  so  strong  that 
the  court  is  convinced  that  th«  order  for  temporary  alimony 
cannot  be  complied  with,  such  order  should  not  be  made.^ 

as  will  insure  to  the  wife  an  eiH-  Burgess    v.  Burgess,  25    111.    535; 

oient  preparation  of  her  case  and  a  Glenn  v.  Glenn,  44  Ark.  46.    It  is 

fair  and  impartial  trial  thereof,"  it  error  to  refuse  to  hear  the  hus- 

is  held  that  a  decree  dismissing  the  band's  testimony  concerning  his 

wife's  suit  may  be  modified  so  as  means.    Jenkins  v.  Jenkins,  69  Ga. 

to  allow  her  a  further  sum  for  CQsts  483. 

and  attorney  fees.    Davis  v.  Davis  s  Rublinsky  v.  Eublinsky,  24  N. 

(Ind.),  40  N.  E.  803.  Y.  Supp.  920;  Lane  v.  Lane,  22  la 

1  Butler  V.  Butler,  1  Lee,  88.    See  Ap.  539;  Miller  v.  Miller,  75  N.  C. 
contra,  Schmidt  v.  Schmidt,  36  Mo.  70;  Cohen  v.  Cohen,  11  Misc.  704 
235.  iprucell  v.  Prucell,  3  Edw.  Ch. 

2  Lilly  V.  LiUy,  1  W.  N.  C.  160;  194;  Deemer  u.  Deemer,  7  Pa.  Co. 
Miller  v.  Miller,  1  W.  N.  C.  415;  Ct.  Rep.  554 

Gaylord  v.  Gaylord,  4  Jones'  Eq.       *  Vinson  v.  Vinson  (Ga.),  19  S.  E. 
74;  "Wright  v.  Wright,  3  Tex.  168;    898. 


§  85  6«.]  TEMPOEAKY   ALIMONY.  807 

§  856a.  Defenses  to  the  application. — Tlie  defenses  to 
the  application  for  temporary  alimony  have  already  been 
considered  in  connection  with  various  topics.  .  It  is  not  a  de- 
fense that  the  court  has  no  jurisdiction  to  award  temporary 
alimony,  because  the  statute  is  silent  as  to  such  power,  or 
because  the  statute  has  provided  for  permanent  alimony  and 
not  temporary  alimony.^  The  denial  that  a  marriage  exists, 
or  the  allegation  in  the  petition  or  answer  that  the  marriage 
is  void  on  account  of  a  prior  marriage  undissolved,  is  not  a 
defense.^  In  general,  it  may  be  said  that  a  denial  of  the 
marriage  relation  is  not  a  defense  because  it  raises  an  issue 
to  be  tried  in  the  action,  and  cannot  be  disposed  of  on  the 
hearing  of  the  application  for  temporary  alimony.  The  ex- 
ception to  this  rule  is  where  the  evidence  is  not  so  conflict- 
ing that  the  court  may  safely  determine  in  advance  that  the 
marriage  is  void  or  has  been  dissolved  by  a  valid  decree  of 
divorce.'  For  the  same  reason  the  denial  of  a  cause  for  di- 
vorce,* or  the  misconduct  of  tlie  wife,'  will  not  be  a  defense, 
as  this  would  involve  a  determination  of  the  merits  of  the 
case  before  the  trial.  "We  have  seen  that  the  fact  that  the 
wife  has  sufiicient  income  to  pay  the  expenses  of  the  suit 
and  maintain  herself  during  the  trial  is  a  defense,  as  it  dis- 
proves the  necessity  for  the  allowance.*  But  there  must  be 
an  adequate  income.  The  ownership  of  property  which  is 
not  readily  convertible  into  money,  or  does  not  yield  an  ade- 
quate income,  is  not  a  defense.''  The  fact  that  the  wife  has 
entered  into  a  void  marriage,  and  is  supported  by  one  who 
claims  to  be  her  husband;  or  is  living  in  adultery  and  is  sup- 
ported by  her  paramour,  will  be  a  defense.^  The  poverty 
of  the  husband,  if  it  amounts  to  an  absolute  inability  to  pay 
alimony,  is  a  defense  where  the  wife  is  plaintiff.  But  if  he 
is  plaintiff,  the  rule  is  otherwise.  He  is  not  entitled  to  a  di- 
vorce where  h&  cannot  pay  alimony,  and  the  wife  is  unable 

1  §851.  »§857. 

2  §853.  «§855. 
3 §§853,  854  'Id. 
*§854.  6  §855. 


808  TBMPOKAEY   ALIMONT.  [§  857. 

to  make  a  defense.'   The  husband's  offer  to  support  the  wife 
during  the  suit  is  not  a  defense.^ 

§857.  Same— Misconduct  of  the  wife.— It  is  no  defense 
to  the  application  for  alimony  that  the  wife  has  committed 
adultery,  or  that  she  is  guilty  of  such  misconduct  that  the 
suit  must  fail.  In  some  instanced  the  courts  have  refused 
the  order  because  the  wife's  adultery  was  shown  by  aiH da- 
vits.' The  court  may  refuse  alimony  in  such  cases;  and 
such  refusal  is  not  reversible  error  unless  it  is  clear  that  the 
discretion  has  been  abused.*  The  misconduct  of  the  wife 
may  be  considered  by  the  court  in  fixing  the  amount  of  ali- 
mony.^ It  is  manifestly  improper  to  try  any  of  the  issues 
of  the  case  upon  affidavits ;  and  the  courts  generally  decline 
to  do  so.  If  recrimination  is  set  up  by  the  husband,  the 
wife  cannot  be  condemned  without  a  trial.  In  genergtl 
the  merits  of  the  case  are  not  examined  on  an  application 
for  temporary  alimony.*  But  where  it  appears  that  the 
wife  is  guilty  of  desertion,  and  has  not  lived  with  the  hus- 
band for  several  years,  the  court  may  refuse  alimony,  but 

i§856.  3  Md.  Ch.  341;   Heilbron  v.  Heil- 

2  §  858.  bron,  158  Pa.  397,  37  A.  987 ;  Frickel 

SKook  V.   Kock,  43  Barb.   515;  v.  Frickel,  4  Misc.  383,  34  N.  Y. 

Carpenter  v.   Carpenter,  19  How.  Supp.  483;  Brinkley  «.  Brinkley,  50 

-  539;  Griffin  v.  Griffin,  31  How.  Pr.  N.  Y.  184;  Nolan  v.  Nolan,  1  Chan. 

364;  Cook  u  Cook,  13  Canada  L.  T.  Chamb.   (Ont.)   368;    Campbell    v. 

73;  Miller  u  Miller,  3  Kulp,  6;  An-  Campbell,  6  Practice  Eep.  (Ont.) 

drews  V.  Andrews,  Dallam  (Tex.),  138 ;  Vandegrift  ■;;.  Yandegrif t,  30 

375;  HiU  v.  Hill,  47  Ga.  333.    See  N.  J.  Eq.76;  Brenner  u  Brenner,  5 

statute  in  Lassiter  v.  Lassiter,  93  Kulp,  6;  Brooks  v.  Brooks,  18  W. 

N.  C.  139.  _  N.  C.  115.    See,  contra,  Dougberty 

^Pettee  v.  Pettee,  19  N.  Y.  Supp.  v.  Dougherty,  8  N.  J.  Eq.  550;  Beg- 

311.  bie  V.  Begbie,  7  N.  J.  Eq.  98;  Monk 

5  Leslie  v.  Leslie,  6  Ab.  Pr.  (N.  S.)  v.  Monk,  7  Eob.  (N.  Y.)  153.   -See, 

193.  also,  Countz  v.  Countz,  30  Ark.  73 

SGruhl  V.  Gruhl,  133  Ind.  87,  33  Edwards  v.  Edwards,  Wright,  308 

N.  E.  1101;  Burgess  v.  Burgess,  35  Wooley  v.  Wooley,  Wright,  345 

lU.  Ap.  535;  Bowman  v.  Bowman,  Slack  v.  Slack,  Dudley  (Ga.),  165 

34  m.  Ap.  165;  Litowich  ■;;.  Lito-  Longfellow  v.  Longfellow,  Clarke, 

wich,  19  Kan.  451;  Coles  v.  Coles,  844 


§§  858,  859.]  TEMPOEAEY    ALIMONY.  809 

will  allow  her  sufficient  suit  money  and  attorneys'  fees  to 
try  the  case.' 

§  858.  OfiFer  to  support  wife. —  It  is  no  defense  to  an  ap- 
plication for  temporary  alunony  that  the  husband  offers  to 
support  the  wife  in  his  own  house.  It  may  be  true  that  she 
has  left  his  home  without  his  fault,  and  that  he  is  not  liable 
at  law  for  her  separate  support.'''  It  may  be  that  she  is  in 
"fault ;  but  that  is  an  issue  that  must  await  the  trial,  and 
should  not  be  determined  from  the  affidavits  alone.'  If  in 
fact  the  husband  is  guilty  of  a  cause  for  divorce,  the  wife  is 
justified  in  remaining  away,  and  may  refuse  the  husband's 
offer  of  support  in  his  own  house.''  She  has  a  cause  for  di- 
vorce, and  may  condone  it  or  not,  at  her  election,  and  is  not 
required  to  live  with  her  husband  under  such  circumstances. 

§  859.  Araount  of  temporary  alimouy. —  The  object  in 
granting  this  kind  of  alimony  is  to  assist  the  wife  in  main- 
taining herself  untiL  the  termination  of  the  suit;  and  the 
amount  should  be  adequate  for  this  purpose.  The  amount 
must  be  governed  by  the  needs  of  the  wife.  If  she  is  accus- 
tomed to  support  herself  and  is  doing  so  in  a  manner  suited 
to  the  circumstances  of  the  parties,  there  is  no  necessity  for 
this  allowance.  If  her  means  are  not  adequate,  the  tempo- 
rary alimony  must  be  sufficient  to  supply  the  deficiency. 
The  amount  varies  with  her  needs.  If  she  is  accustomed  to 
a  moderate  style  of  living,  the  amount  should  not  be  greater 

'Anthony  v.  Anthony,  11  N.  J.  108:  Gleason  v.  Gleason,  12  W.  N. 

Eq.  70.    See,  also,  oases  cited  in  C.  408;  Cronk  v.  Cronk,  19  Grant 

§  875.  Ch.  383;  Snider  v.  Snider,  11  Ont 

2  Culver  V.  Culver,  8  B.  Monr.  128.  Pr.  Rep.  140;  Knapp  v.  Knapp,  12 
See,  also,  Rockwell  v.  Morgan,  2  Ont.  Pr.  Rep.  105;  Ousey  v.  Ousey, 
Beas.  119.                                         '  22  W.  R.  (New  B.)  556;  Suberville 

3  See  contra,  O'Hara  v.  O'Hara,  12  v.  Adams,  46  La.  An.  119,  14  So. 
Pa,  Co.  Ct.  603.  518;  Carr  v.  Carr,  2  Ch.   Chamb. 


<  Breinig  v.  Breinig,  21  Pa.  161 
Johnson  v.  Johnson,  125  111.  510 
Wolf  V.  Wolf,  14  Lan.  Bar  Rep.  59 
Atkinson  v.  Atkinson,  1  L.  Val.  149 


Ont.  71 ;  Weir  v.  Weir,  1  Ch.  Chamb. 
194;  Wilson  v.  Wilson,  6  Prac.  Rep. 
129;  Martin  v.  Martin,  4  Halst.  563; 
Sclileif  cr  v.  Schleif  er,  19  N.  Y.  Supp. 


Garrettson  v.  Garrettson,  14  W.  N.     973;  Downing  v.  Downing,  7  Kulp, 
C.  566;  Wilson  v.  Wilson,  1  L.  VaL    138. 


810  TEMPOEAEY   ALIMONY.  [§  859. 

than  will  support  her  accordingly,  although  the  husband  has 
a  large  income.  Unless  the  wife  is  profligate  or  has  been  living 
beyond  her  husband's  means,  she  should  be  allowed  sufficient 
means  to  continue  her  accustomed  mode  of  living  during  the 
suit.  No  specific  rules  have  been  formulated  or  followed  by 
our  courts  in  fixing  this  amount.  And  in  the  nature  of  the 
case  no  definite  proportion  should  be  adopted,  since  the  court 
must  consider  the  wealth  and  social  standing  of  the  parties, 
their  manner  of  living,  the  present  available  means  of  the 
wife  and  the  ability  and  income  of  her  husband,  her  h^th 
and  probable  needs  while  the  suit  is  pending,  and  many 
other  circumstances ;  and  from  aU  these  the  court  may  esti- 
mate what  amount,  if  any,  will  be  necessary  to  maihtain  her 
in  a  suitable  manner  during  the  litigation.  Perhaps  the 
most  satisfactory  rule  is  that  the  amount  must  be  sufficient 
to  enable  the  Avif e,  in  addition  to  her  own  means,  to  main- 
tain herself  during  the  suit  according  to  her  former  manner 
of  living.  "  The  wife  should  not  be  placed  in  a  better  posi- 
tion than  she  was  in  before  the  suit  was  instituted."  ^ 

It  is  said  to  be  the  common  rule  in  England  and  most  of 
our  states  "  to  allow  for  temporary  alimony  about  one-fifth 
of  the  joint  income,  deducting  the  wife's  separate  income. 
Yet  this  is  subject  to  be  varied  with  the  circumstances."  ^ 
But  no  such  rule  is  indorsed  by  our  courts ;  and  an  exami- 
nation of  later  decisions  in  England  will  disclose  that  the 
amount  is  determined  from  the  wife's  circumstances,  and 
not  from  the  income  of  the  husband.  Thus,  where  the  hus- 
band has  no  income,  the  court  may  award  the  wife  a  suit- 
able allowance.^  And  where  the  husband  has  an  income  the 
amount  is  not  generally  one-fifth  of  the  income,  but  an  allow- 
ance according  to  the  wife's  needs.  To  follow  such  a  rule 
would  lead  the  courts  to  make  absurd  allowances  and  to 

1  George  v.  George,  1  P.  &  M.  554.    &  T.  85;  Williams  v.  Williams,  29 

2  3  Bishop,  Mar.,  Sep.  &  Div.,  §  953,    Wis.  517. 

citing  Hawkes  v.  Hawkes,  1  Hag.,  'Thompson  u  Thompson,  1  P.  <& 

Eo.  526;   Brisco  v.  Briscp,  2  Hag.  M.  553;  Miller  u  Miller,  75  N.C.  70; 

Con.  199;  Rees  v.  Rees,  3  Phillim.  Ward  u  Ward,  29  Ab.  N.  0.  256; 

387;  Hay  ward  u.  Hay  ward,  1  Swab.  Lane  v.  Lane,  32  111.  Ap.  529. 


§  859.]  TEMPOEAEY   ALIMOKT.  811 

neglect  the  exercise  of  that  broad  and  liberal  discretion  to 
adjust  the  amount  according  to  the  circumstances  of  each 
case. 

As  this  question  cannot  be  treated  in  the  abstract,  some 
decisions  will  be  noticed  here,  not  as  precedents  binding  upon 
our  courts  in  similar  circumstances,  but  as  illustrations  of 
the  considerations  which  have  influenced  the  courts  in  esti- 
mating the  proper  amount  of  temporary  alimony.  Where 
the  wife  had  sued  her  husband  for  divorce  after  living  apart 
from  him  for  several  years,  during  which  she  had  employ- 
ment and  continued  to  be  able  to  support  herself,  the  court 
refused  temporary  alimony  although  the  husband  received  a 
fair  income.^  To  grant  her  alimony  under  such  circum- 
stances would  be  to  place  her  in  a  better  position  before  suit 
was  instituted.  In  a  leading  case  the  wife  had  been  receiv- 
ing forty  pounds  per  annum  under  an  agreement  for  separa- 
tion, but  in  his  suit  for  divorce  she  applied  for  an  additional 
allowance  on  the  ground  that  the  husband  had  recently  ac- 
quired a  considerable  fortune,  and  his  income  had  increased. 
But  the  court  refused  the  application,  saying  that  "  if  a  wife 
is  content  to  live  on  a  small  income  for  many  years,  it  would 
be  very  unfair  to  the  husband  that  on  her  being  accused  of 
committing  adultery  she  should  at  once  be  entitled  to  a 
higher  rate  of  allowance  than  she  had  previously  received."  ^ 
On  appeal  it  was  insisted  by  eminent  counsel  that  the  insti- 
tution of  the  suit  reopened  the  question  of  allowance,  and 
she  was  entitled  to  the  usual  proportion  of  alimony,  and  that 
it  was  a  mistake  to  treat  the  question  of  alimony  as  "  one  of 
bare  maintenance  for  the  wife ;  she  is  entitled  to  more  than 
a  bare  maintenance,  to  a  suflBcient  maintenance  in  proportion 
to  the  husband's  means."  But  the  court  held  that  the  allow- 
ance, having  been  sufficient  in  the  past,  would  be  sufficient 
during  the  suit,  as  it  was  not  shown  that  she  would  be  put 
to  any  extra  expense.'  The  husband's  income  was  not  con- 
sidered in  arriving  at  this  conclusion. 

1  George  v.  George,  1  P.  &  M.  553.        3  Powell  v.  Powell,  3  P.  &  M.  186. 

2  PoweU  V.  Powell,  3  P.  &  M.  55. 


812  TEMPOEAET   ALtMONT.  '[§  859. 

The  amount  of  temporary  alimony  must  be  based  upon 
the  actual  wants  of  the  wife.^  The  amount  should  not  per- 
mit the  wife  to  profit  by  her  separation  and  suit.  If  she  is 
allowed  greater  means  than  if  she  had  remained  with  her 
husband,  the  precedent  may  encourage  unfounded  and  vexa- 
tious suits  and  other  abuses.  The  object  of  /the  allowance 
is  to  support  her  during  the  litigation  and  to  permit  her  to 
have  a  fair  trial ;  and  this  will  require  an  estimate  of  the 
amount  necessary  for  her  support,  and  the  manner  in  which 
she  is  to  live  during  the  suit.  The  modern  rule  appears  to 
be  that  the  wife  who  has  separated  herself  from  her  hus- 
band on  account  of  his  misconduct,  and  has  sued  him  for 
divorce,  is  entitled  to  support  according  to  her  station  in 
life  and  the  ability  of  her  husband.  This  is  the  legal  duty 
of  the  husband  at  all  times,  and  his  commission  of  a  matri- 
monial wrong  does  not  relieve  him  or  justify  a  smaller  al- 
lowance. The  wife  is  not  required  to  change  her  manner 
of  living  during  the  suit.  Thus,  where  the  husband  is  a 
millionaire  and  has  a  net  annual  income  of  $30,000,  it  is  not 
error  to  allow  the  wife  $300  per  month,  although  she  might 
have  lived  in  a  modest  and  economical  way  on  her  own 
means.^ 

In  the  famous  Sharon  case  the  court  did  not  confine  the 
wife  to  a  sum  sufficient  to  meet  her  actual  wants,  or  to  a 
portion  of  the  husband's  income,  but  considered  the  sum 
which  she  had  been  receiving  from  the  husband  as  sufficient 
to  enable  her  to  live  in  the  same  position  and  manner  as  she 
,  was  accustomed  to  before  the  suit  was  commenced.  In  re- 
viewing the  order  for  temporary  alimony  McKihstry,  J.,  said : 
"  "Where  the  income  of  the  husband  is  very  large,  and  the 
parties  have  publicly  lived  together  in  a  style  conformable 

iSee    Saunders   v.    Saunders,   3  2  Harding  v.  Harding,  144  111.  588, 

Edw.  Ch.  4&1 ;  Denton  v.  Denton,  1  reversing  Harding  v.  Harding,  40 

John.  Ch.  364;  Forrest  v.  Forrest,  111.  Ap.  202,  and  overruling  Raw- 

5  Bosworth  (N.  Y.),  673;  Collins  v  son  v.  Eawson,  37  IlL  Ap.  491. 
CoUins,  2  Paige,  9;  Gilbert  v.  Gil- 
bert, 15  N.  Y.  Supp.  833. 


§  859.]  TEMPOEAET   ALIMONT,  813 

to  such  income,  a  just  allowance  would  seem  to  be  one  suffi- 
cient to  enable  the  wife  to  continue  the  enjoyment  of  many 
luxuries  which  habit  has  made  apparent  necessities;  this, 
however,  subject  to  the  limitation  that,  while  her  suit  is 
pending,  she  is  to  live  in  the  discreet  and  quiet  manner  ap- 
propriate to  those  whose  domestic  relations  are  being  made 
the  subject  of  public  investigation,  and  without  expenditure 
for  mere  display  or  the  gratiiication  of  personal  vanity.  In 
the  case  now  here  the  plaintiff  never  enjoyed  a  portion  of 
the  defendant's  income  accordant  with  the  position  of  his 
recognized  wife.  Assuming  every  fact  in  her  favor,  she  was, 
at  the  commencement  of  their  relations,  willing  that  the 
marriage  should  be  kept  secret  for  a  definite  time,  and  dur- 
ing that  period  to  live  in  comparative  obscurity  upon  an 
allowance  of  $500  a  month.  That  large  sum  (however  small 
a  portion  of  the  defendant's  actual  income)  was  amply  suffi- 
cient for  her  comfortable  support,  and  to  supply  her  with 
many  of  the  appliances  of  wealth." ' 

In  New  York  the  rule  appears  to  be  that  the  temporary 
alimony  should  be  confined  to  the  actual  wants  of  the  wife, 
or  real  necessities  of  subsistence  during  the  suit,  wholly  unin- 
fluenced by  the  wealth  or  social  standing  of  the  husband.^ 
Where  the  husband's  annual  income  was  more  than  $60,000, 
the  court  considered  the  sum  of  $50  per  week  as  more  than 
necessary  to  support  the  wife,  and  reduced  the  amount  to 
$30  per  week.'  The  court  was,  no  doubt,  influenced  by  the 
fact  that  the  wife  had  agreed  to  live  upon  that  sum  at  the 
time  of  their  separation.  In  an  early  case  in  this  state  $25 
per  month  was  considered  too  great  an  award  for  the  wife's 
support  in  the  city  of  New  York.  "  As  a  general  rule,"  it 
was  said,  "  to  guard  against  any  abuse  of  the  privilege  of 

'Sharon  v.  Sharon,  75  CaL  1,  47.  Paige,  267;  Morrell  v.  Morrell,  3 

The  lower  court  had  allowed  the  Barb.  480;  Simmona  u  Simmons, 

sum  of  §S,500  per  month  as  tern-  2  Rob.  712.     But  see  contra,  De 

porary  alimony,  and  this  amount  Llamosas  v.  De  Llamosas,  4  Thomp. 

was  reduced  to  §500  per  month.  &  C.  574. 

^Germond  v.  Germond,  4  Paige,  3  Leslie  v.  Leslie,  6  Ab.  Pr.  (N.  S.) 

643;    Lawrence    v.    Lawrence,    8  103. 


814  TEMPOEAET  ALIMONY.  [§  859. 

the  wife  to  obtain  temporary  support  pending  a  suit  for  di- 
vorce or  separation,  and  to  prevent  the  bringing  of  improper 
suits  for  the  mere  purpose  of  obtaining  a  support  during  a 
protracted  litigation,  the  temporary  alimony  must  be  limited 
to  the  actual  wants  of  the  wife,  until  the  termination  of  the 
suit  in  her  favor  establishes  the  fact  that  she  has  been  abused 
and  is  entitled  to  a  more  liberal  allowance."  * 

Where  the  wife  was  a  defendant,  the  old  rule  was  to  allow 
her  only  a  mere  subsistence,  with  reference  to  her  "  former 
comfortable  state."  ^  It  was  said  that  the  "  bringing  of  the  ' 
accusation  casts  a  shadow  over  her  which  should  induce  her 
to  live  in  comparative  seclusion  and  consequent  economy 
until  it  is  removed." '  But  it  is  doubtful  whether  this  con- 
sideration is  of  much  weight  in  our  courts,  as  the  wife  is 
considered  innocent  until  the  contrary  appears,  and  she  is 
entitled  to  support  while  the  question  is  in  litigation.  This 
doctrine  has  been  denounced  as  "worthy, only  of  feudal 
times,"  and  as  "a  doctrine  practically  repudiated  by  this 
enlightened  age,  like  many  other  unjust  and  cruel  rules  ap- 
plicable to  women."  * 

The  amount  is  sometimes  influenced  by  the  fact  that  the 
wife  is  plaintiff.'  Or  that  the  husband  has  denied  the  wife's 
charges  under  oath.*  Or  that  the  husband  during  the  suit 
has  to  pay  the  costs  for  both,  as  well  as  support  the  wife.' 
The  custody  of  the  children  cannot  be  determined  on  the 
hearing  of  the  application  for  temporary  alimony.  Gener- 
ally they  are  permitted  to  remain  with  the  parent  with 
whom  they  resided  at  the  commencement  of  the  suit.    In 

iGermond  v.  Germond,  4  Paige,  « story  v.  Story,   Walk.   (Mich.) 

643.  431 ;  De  Llamosas  v.  De  Llamosas,  4 

2  Smith  V.  Smith,  3  Phillim.  153;  Thomp.  &  G.  574.    But  see  contra, 

Cooke  V.  Cooke,  2  Phillim.  40.  Moriarity  v.  Moriarity,  10  N.  Y. 

'Hawkes  v.  Hawkes,  1  Hag.  Ea    Supp.  338;  Eawson  v.  Eawson,  37 

S36.  111.  Ap.  491. 

4  Dissenting  opinion  of  Barrett,  ^Brisco  v.  Brisco,  3  Hag.  Con. 

J.,  in  Leslie  v.  Leslie,  6  Ab.  Pr.  199;  Harris  v.  Harris,  1  Hag.  Ec. 

(N.  S.)  19a  35L 

*  Amos  V.  Amos,  4  N.  J.  Eq.  171.  ' 


§  860.]  TEMPOEAKT   ALIMONY.  815 

some  instances  the  fact  that  the  children  reside  with  their 
mother  may  be  considered,  and  the  amount  is  increased  for 
their  support  during  the  suit.'  The  wife's  health  may  ren- 
der an  increased  allowance  necessary,  and  this  may  be  con- 
sidered in  fixing  the  amount.^  The  amount  should  be  in- 
creased or  diminished  during  the  suit,  if  circumstances  require 
it.'  The  amount  should  not  be  generous,  for  it  is  only  for 
a  short  time  and  a  temporary  purpose.  If  it  is  too  low, 
the  amount  may  be  increased  at  any  time  upon  a  showing 
of  the  necessity. 

If  the  husband  insists  that  the  amount  is  too  large,  the 
court  may  grant  another  hearing  and  adjust  the  amount  ac- 
cording to  the  circumstances.  Where  the  husband  is  ready 
for  trial,  and  the  wife  delays  the  same  by  demanding  a 
change  of  venue,  or  a  continuance,  or  a  trial  by  jury,  the 
court,  in  granting  her  request,  may  excuse  the  husband  from 
the  payment  of  ad  interim  alimony.  Such  alimony  is  not  a 
matter  of  strict  right,  but  of  sound  discretion.* 

§  860.  When  temporary  alimony  commences  and  ter- 
minates.—  Th.e  purpose  of  temporary  alimony  being  the 
support  of  the  wife  during  the  suit  and  a  provision  for  her 
expenses,  the  aid  should  commence  and  terminate  with  the 
necessity  for  it.  Ordinarily  this  kind  of  alimony  dates  from 
the  commencement  of  the  suit.'    In  ecclesiastical  practice 

lUmlauf  V.  Umlauf,  23  111.  Ap.  404;  Bay's  Appeal,   6  A.  40;  Van 

580;  Scragg  v.   Scragg,   18   N.   Y.  "Wormer  v.  Van  Wormer,  11  N.  Y. 

Supp.    487;     Lynde    v.    Lynde,    4  Supp.   247;    Gilbert   v.  Gilbert,    1 

Sandf.   373;  Harding  v.  Harding,  N.  Y.  Supp.  534;  Beers  v.  Beers,  4 

40  IlL   Ap.   203,   reversed  144  IlL  Lane.  Eep.  (Pa.)  154. 

588;  Potts  V.  Potts,  68  Mich.  493,  <Sigel  v.  Sigel,  19  N.  Y.  Supp. 

36 N.W. 240 ;WiUiams U.Williams,  906,28  Ab.  N.  0.  303;   Walker  u 

29  Wis.  517.  Walker,  10   Practice   Eep.  (Ont.) 

2  Schammel  v.  Schammel,  74  CaL  633;  WiUiams  v.  Williams,  29  Wis. 

36,  15  P.   864;  Lynde  v.  Lynde,  4  517. 

Sandf.  373,  affiriaed  in  3  Barb.  Ch.  » Forrest  v.  Forrest,  3  Bosw.  661;. 

73.  Burr  v.  Burr,  7  Hill,  207;  Leslie  v. 

» Leslie  V.  Leslie,  11  Ab.Pr.  (N.  S.)  Leslie,  6  Ab.  Pr.   193;    Howe   v. 

311;  Hardy  v.  Hardy,  6  N.  Y.  Supp.  Howe,  3  Chy.  Chamb.  (Ont.)  494; 

300;  Sheckles  v.  Sheckles,  3  Nev.  Ricketts  v.  Eicketts,  4  Gill,  105. 


816  TEMPORARY  ALIMONY.  [§  860. 

the  temporary  alimony  generally  dates  back  to  the  return 
of  the  citation ;  for  until  then  the  wife  might  obtain  sub- 
sistence upon  her  husband's  credit.'  But  the  court,  in  its 
discretion,  might  fix  the  date  when  this  alimony  should  com- 
mence— at  the  time  the  citation  was  issued,  or  at  some  later 
date,  according  to  the  circumstances  of  the  parties  and  the 
date  of  the  application.^  In  modern  practice  the  date  when 
the  temporary  alimony  commences  is  fixed  in  the  order,  and 
this  date  is  generally  the  day  the  order  is  granted.' 

Temporary  alimony  ceases  upon  the  entry  of  a  final  judg- 
ment.* The  suit  is  no  longer  pending,  and  the  necessity  for 
alimony  and  suit  money  is  terminated.  If  a  motion  for  a 
new  trial  is  pending,  or  an  appeal  has  been  taken  from  the 
decree  of  divorce,  the  temporary  alimony  would  continue.' 
It  appears  to  be  the  rule  in  England  that  temporary  alimony 
ceases  upon  the  verdict  of  a  jury  finding  the  wife  guilty  of 
adultery.*  But  the  court  has  the  power  to  continue  the  ali- 
mony, if  it  is  made  to  appear  that  she  has  good  cause  for  a 
new  trial.^  The  order  for  temporary  alimony  may  provide 
that  the  same  shall  continue  in  force  until  a  final  decree  is 
rendered.  Bat  the  failure  to  so  limit  the  time  will  not  render 
the  order  erroneous,  as,  by  necessary  implication,  the  order 
ceases  to  have  any  force  or  effect  after  a  final  decree.^ 
Where  the  wife's  petition  is  dismissed  for  failure  to  prove  a 
cause  for  divorce,  the  order  for  temporary  alimony  is  thereby 
annulled,  and  the  wife  cannot  recover  any  amount  which 
may  be  due  at  the  time.'    If  the  decree  for  temporary  ali- 

1  Loveden  v.  Loveden,  1  Phillim.  <>  Dawson  v.  Dawson,  37  Mo.  Ap. 
208.  207. 

2  Loveden  v.  Loveden;  1  Phillim.  <>  Wells  v.  Wells,  8  Swab.  &  T. 
208;  Rees  w.  Eees,  3  Phillim.  387.  542.    But  see  contra,  Stanford  ». 

3  In  New  York  it  can  only  be  al-  Stanford,  1  Edw.  Ch.  316. 
lowed  from  the  time  that  the  no-  '  Dunn  v.  Dunn,  13  P.  D.  91. 
tice    of    application    was    served.  8  Langan  v.  Langan,  91  Cal.  654, 
Thrall  v.  ThraU,  31  N.  Y.  Supp.  591,  27  P.  1092. 

83  Hun,  189.  9  Wright  v.  Wright,  fi  Tex.  29; 

*Moncrief  i'.  Monorief,  15  Abb.    O'Haley  v.  Q'Haley,  31  Tex,  502. 
Pr.  187;  Germond  u  Germond,  1 
Paige,  83. 


§  861.J  TEMPOEAEY   ALIMONY.  817 

mony  conflicts  with  the  terms  of  the  decree  for  permanent 
-alimony,  the  latter  decree  will  prevail  as  a  final  adjustment 
of  the  matter.'  Upon  the  determination  of  the  case  upon 
appeal  or  by  entry  of  a  final  judgment  of  any  kind,  the  order 
for  temporary  alimony  terminates.  If  no  alimony  has  been 
]5aid  on  the  order,  and  the  husband  appealed  from  the  order, 
a  dismissal  of  the  wife's  suit  because  no  marriage  existed 
will  operate  to  vacate  the  order,  and  no  arrears  of  alimony 
can  be  recovered.^ 

§  861.  How  enforced. —  An  order  for  temporary  alimony 
may  be  enforced  by  execution,  sequestration,  or  by  proceed- 
ings in  contempt.'  But  during  the  suit  the  court  has  the 
power  to  enforce  its  orders  by  declaring  the  husband  in 
contempt  and  refusing  to  proceed  with  the  cause  until  its 
order  is  complied  with.*  In  some  instances  the  courts  have 
dismissed  his  petition  for  a  failure  to  comply  with  its  orders.* 
It  is  error  to  refuse  a  matter  of  right,  such  as  a  change  of 
venue,  until  the  temporary  alimony  is  paid.'  It  is  doubtful 
if  the  court  should  refuse  to  enter  a  decree  of  divorce  until 
the  temporary  alimony  is  paid.  But  in  some  instances  this 
practice  has  been  approved.'  In  many  instances  the  hus- 
band's answer  has  been  stricken  out  for  his  disobedience  of 
the  orders  of  the  court.*    But  this  is  now  considered  against 

1  Driver  v.  Driver  (Ga.),  31 S.  E.  154.  s.  C,  8  Ab.  N.  Gas.  436, 30  Hun,  400, 

2  Sharon  v.  Sharon,  84  CaL  434.  59  How.  Pr.  476 ;  McCrea  v.  McCrea, 

3  See  Permanent  alimony,  §  939.  58  How.  Pr.  330;  Quigley  v.  Quig- 
<Keane  v.  Keane,  3  P.  &  M.  53;  ley,  45  Hun,  33;  Brisbane  v.  Bris- 

Winter  r.  Supr.  Ct.,  70  CaL  395,  11  bane,  67  How.  Pr.  184;   Clark  v. 

P.  630;  Johnsons.  Superior  Ct.,  63  Clark,  13  Daly,  497;  Zimmerman 

-CaL  578.  v.  Zimmerman,  7  Mont.  114,  14  P. 

sCasteel  v.  Casteel,  38  Ark.  477;  665;  Farnham  v.  Farnham,  9  How. 

Newhouse  v.  Newhouse,  14  Or.  390.  Pr.  331;   Bird  v.  Bird,  1  Lee,  573; 

^Hennessy  u  Nichol  (CaL),  38  t.  Cason  v.  Cason,  15  Ga.  405;  Gant 

.649.  V.  Gant,  19  Humph.  (Tenn.)  464    If 

'  State  V.  St.  Louis  Ct.  of  Ap.,  99  defendant  absconds  to  avoid  pay- 
Mo.  316,  13  S.  W.  661;  Latham  v.  ing  alimony,  the  default  against 
Latham,  3  Swab.  &  T.  399;  Foster  him  will  not  be  set  aside  until  he 
4J.  Eedfleld,  50  Vt.  285.  has  complied  with  the  order.  Weid- 

8  Walker  v.  Walker,  83  N.  Y.  360;  ner  v.  Weidner,  85  Hun,  433. 
52 


818  TEMPOKAET   ALIMONr.  [§  8621 

public  policy;  for  it  prevents  that  fuU  investigation  into 
the  merits  of  the  controversy  which  is  necessary  to  protect 
the  interest  of  the  state.'  And  for  the  same  reason  the  hus- 
band's exceptions  should  not  be  dismissed  on  appeal  for  fail- 
ure to  pay  alimony.^  But  the  supreme  court  may  refuse  to- 
modify  a  decree  for  permanent  alimony  until  the  decree- 
for  temporary  alimony  is  satisfied.' 

§  862.  Appeal. —  The  action  of  the  court  in  granting  or  re- 
fusing temporary  alimony,  although  discretionary,  is-  never- 
theless subject  to  review.*  In  some  states  the  order  for 
temporary  alimony  and  suit  money  is  held  to  be  a  mere  inter- 
locutory order,  and  not  reviewable  until  a  final  judgment  is- 
rendered.^  But  the  true  doctrine  is  that  such  order  is  itself 
a  final  judgment.  It  is  a  decree  for  a  specific  sum  payable 
absolutely.  An  execution  may  issue  upon  this  order,  or  pay- 
ment be  enforced  by  sequestration  of  real  or  personal  estate. 
If  the  husband  wilfully  refuses  to  comply  with  the  order, 
the  decree  may  be  enforced  by  attachment  for  contempt.. 
If  there  is  no  appeal,  there  is  no  remedy  against  this  judg- 
ment for  the  payment  of  money,  no  matter  how  unjust  and 
oppressive  the  order  may  be.  The  money  recovered  from 
the  husband  by  execution  or  other  means  is  paid  to  the  par- 
ties in  whose  favor  it  was  awarded,  and  passes  beyond  the- 
control  of  the  court,  and  cannot  be  recovered  if  the  appel- 
late court  should  reverse  or  modify  the  order.  The  weight 
of  authority  is  that  such  order  may  be  stayed  by  the  execu- 

1  Gordon  v.  Gordon,  141  111.  160,  Lapham  v.  Lapham,  40  Mich.  537; 

30  N.  E.  446;  s.  c,  41  111.  Ap.  137;  Aspinwall  v.  Aspinwall,   18  Neb. 

Peel  V.  Peel,  50  la.  522;  Allen  v.  463,  25  N.  W.  623;  Wyatt «.  Wyatt,. 

Allen,  73  la.  502;  Bally  v.  Bally,  69  3  Idaho,  219,  10  P.  228;  Gordon  v. 

la.  77.  Gordpn,  88  N.  C.  45;  Boss  v.  Ross, 

3D-weUy  v.  D welly,  46  Me.  377-  47  Mich.  186;  Webber  v.  Webber, 

381.  79  N.  C.  572;   Sparhawk  v.  Spar- 

3  Williams -y.  Williams  (S.D.),  61  ha-svk,  120  Mass.    390;    Eussell  v. 

N.  W.  38.  Kussell,  69  Me.  338;  Call  v.  CaU,  65- 

^See  contra,  Call  v.  Call,  65  Me.  Me.  407;    Maloney  v.  Maloney,  9 

407.  Rob.  (La.)  116.    As  to  right  of  ap- 


3  Earls  V.  Earls,  36  Kan.  178 
Cooper  V.  Mayhe-w,  40  Mich.  538 
Froman  v.  Froman,  53  Mich.  581 


peal  from  appellate  court  of  Illi- 
nois see  Crittenden  v.  Crittenden,. 
138  111.  511. 


§  862.]  TEMIXIEARY    ALIMuNY.  819 

tion  of  a  suitable  undertaking,  and  the  case  may  be  reviewed 
without  awaiting  a  final  decree  in  the  action  for  divorce.' 
The  undertaking  must  conform  to  the  provisions  of  the  code,^ 
and  should  be  in  double  the  amount  of  the  order  for  a  rea- 
sonable time  within  which  the  appeal  can  be  determined, 
and  for  costs.'  After  the  filing  of  such  undertaking  the  court 
may  make  another  order  compelling  the  husband  to  pay 
costs  and  attorney  fees  to  enable  the  wife  to  resist  the  appeal. 

Ordinarily  the  court  will  not  disturb  the  order  unless  there 
has  been  an  abuse  of  discretion  or  an  error  in  law,  or  the  lower 
court  has  overlooked  or  disregarded  some  important  element 
in  the  case,  to  the  manifest  injury  of  one  of  the  parties.'' 

Discretion  is  said  to  be  abused  whenever  in  its  exercise 
"  a  court  exceeds  the  bounds  of  reason."  ^  ISTo  partiality 
must  be  shown,  and  no  material  consideration  disregarded. 
"When,  in  view  of  all  the  circumstances,  the  amount  is  largely 
in  excess  of  the  wife's  needs,  or  greatly  inadequate,  or  the 
husband's  rights  have  been  overlooked,  or  the  amount  is  in 
excess  of  his  ability  to  pay,  the  order  may  be  said  to  be  an 
abuse  of  discretion.  The  order  must  be  so  extravagant  as 
to  show  that  there  was  some  mistake  either  in  the  method 
of  the  calculation  or  the  proportion  awarded.     The  appel- 

1  Sharon  v.  Sharon,  67  Cal.  185;  Murray  u  Murray,  84  Ala.  363;  Col- 
Golding  V.  Golding,  74  Mo.  123;  lins  v.  Collins  (Ga.),  19  S.  E.  833; 
Blake  v.  Blake,  80  IlL  523;  Loch-  Crittenden  v.  Crittenden,  37  111. 
nana  v.  Loohnane,  78  Ky.  467;  Ap.  617;  Lind  v.  Lind,  37  111.  Ap. 
Ileoht  V.  Heoht,  28  Ark.  92;  Casteel  178;  Becker  v.  Becker,  15  111.  Ap. 
v.  Casteel,  38  Ark.  477;  Blair  v.  247;  Foss  u  Foss,  73  la.  483:  Camp- 
Blair,  74  la.  311 ;  Williams  v.  Will-  bell  v.  Campbell,  73  la.  481 ;  Small  r. 
iams,  29  Wis.  517;  Reed  v.  Reed,  Small,42Ia.lll;  Gruhli;.Gruhl,133 
17  O.  St.  563;  King  v.  King,  38  O.  Ind.  37;  Henderson  v.  Henderson, 
St.  370;  State  v.  Seddon,  93 Mo.  520;  110  Ind.  316;  Peck  v.  Peck,  113  Ind. 
Finklestein,  In  re,  13  Mont.  425.  168;  Haines  v.  Haines,  35  Mich.  138; 

2  Cowan  V.  Cowan,  19  Colo.  315.  Froman  v.  Froman,  53  Mich.  581 ; 

3  For  form  of  undertaking  held  Roseu  Rose,  53  Mich.  585;  Rossman 
sufficient,  see  Sharon  v.  Sharon,  68  v.  Rossman,  62  Mich.  429;  Collins  v. 
Cal.  836.  Collins,  71  N.  Y.  269;  Lee  v.  Lee,  a 

4  Williams  v.  Williams,  39  Wis.  Wash.  Ter.  236,  28  P.  355;  Grant  w. 
r)17;   Sumner  v.   Sumner,   54  Wis.  Grant  (S.   Dak.),    57  N.    W.    948; 
643;  White  v.  White,  73  Cal.  105;  Waldron  v.  Waldron,  55  Pa.  331. 
Schammel  v.  Schammel,  74  Cal.  36;  »  Sharon  v.  Sharon,  75  Cal.  1,  48. 


S20  TEMPOEAET   ALIMONY.  [§  863. 

late  court  should  not  interfere  with  the  order  merely  because 
in  a  particular  case  the  court  might  in  its'  own  discretion 
have  reached  a  different  conclusion. '  But  some  of  our  ap- 
pellate courts  exercise  considerable  freedom  in  modifying 
the  amount  of  alimony. 

Where  there  has  been  an  abuse  of  discretion  the  order 
may  be  reversed,  or,  upon  a  review  of  the  decree  of  divorce, 
the  appellate  court  may  correct  the  amount  and  make  an 
additional  allowance.^  On  reversal  the  court  may  order  a 
restitution  of  the  amounts  paid.'  But  it  would  seei;n  that 
counsel  fees  and  costs  should  not  be  returned  after  the  serv- 
ices are  rendered.* 

§  863.  Temporary  alimony  on  appeal. —  It  is  clear  that 
a  wife  destitute  of  means  is  entitled  to  temporary  alimony 
and  attorney's  fees  during  an  appeal,  whether  the  appeal 
is  taken  by  herself  or  her  husband.'  The  action  is  still 
pending,  and  the  necessity  for  the  allowance  continues  until 
the  final  decree  is  rendered.^  But  which  court  has  jurisdic- 
tion to  make  the  order  for  temporary  alimony  and  suit 
money  ?  Has  the  lower  court  power  after  the  appeal  is  per- 
fected? The  courts  have  reached  a  variety  of  conclusions 
on  this  question.  As  a  matter  of  convenience  the  lower 
court  should  retain  the  jurisdiction  until  the  appeal  is  deter- 
mined. Such  court  is  convenient;  has  in  its  records  the 
showing  as  to  the  wife's  needs  and  the  husband's  ability ; 
has,  perhaps,  already  determined  a  proper  allowance  for  the 
wife ;  can  make  additional  allowance  as  the  necessity  arises ; 
and  is,  in  most  cases,  near  the  husband  and  can  enforce  its 

1  Powell  V.  Powell,  3  P.  &  M.  186.  ^  See  Jenkins  v.  Jenkins,  91  III. 

2Brenig  v.  Brenig,  26  Pa.  161;  167;  Grauer  v.  Grauer,  3  Misc.  98, 

Powers'  Appeal,  120  Pa.  320 ;  Whit-  30  N.  Y.  Supp.  854;  Wuest  v.  Wuest, 

sellu  Whitsell,  8  B.  Mon.  50;  Ed-  17  Nev.  317;  l,ishey  v.  Lishey,  74 

wards  v.  Edwards,  84  Ala.  361, 3  So.  Tenn.  418. 

896 ;  Jenkins  v.  Jenkins,  91  IlL  167 ;  ^  There  must,  he  a  showing  of 

S.  V.  Eombauer,  99Mo.  316;  Champ-  prejudicial  error  if  wife  appeals, 

lin  V.  Champlin,  43  la.  169.  §  854. 

3Mullin  V.  Mullin,  60  N.  H.  16.  » Forrest  v.  Forrest,  5  Bos.  672. 
See,  also,  Persons  v.  Persons,   36 
Tenn.  183. 


§  863.]  TEMPOEAEY   ALIMONY.  821 

orders  without  great  expense  or  delay.  On  the  contrary, 
the  whole  power  should  not  be  delegated  to  the  lower  court, 
for  during  the  pendency  of  the  appeal  the  appellate  court 
may  find  it  necessary  to  change  the  amount  of  alirriony  and 
suit  money  and  to  make  further  orders  concerning  the  same. 
"Where  the  practice  is  not  controlled  by  statute,  the  ordi- 
nary rules  of  practice,  as  well  as  plain  principles  of  law,  would 
suggest  that  the  jurisdiction  of  the  lower  court  is  lost  when 
the  appeal  is  perfected.'  Before  the  appeal  is  perfected  the 
lower  court  has  the  power  to  award  alimony  and  any  sum 
of  money  necessary  to  enable  the  wife  to  prepare  the  case 
for  appeal,  including  clerks'  and  reporters'  fees,  the  cost  of 
printing  the  record,  etc.,  and  a  suitable  attorney  fee  for 
making  such  preparation.^  "When  the  appeal  is  perfected 
all  proceedings  in  the  lower  court  are  stayed,  and  the  appli- 
cation must  be  made  to  the  appellate  court,  which  now  has 
complete  jurisdiction  over  the  parties.'  Upon  reversal  the 
lower  court  will  obtain  jurisdiction  over  the  parties  again, 
and  may  make  further  orders  concerning  alimony  and  attor- 
ney fees.*  The  appellate  court  has  the  inherent  power  to 
allow  alimony  and  counsel  fees,  although  not  authorized  by 
any  statutory  provision  on  the  subject;  for  the  jurisdiction 
to  review  decrees  of  divorce  carries  with  it,  by  implication, 
the  incidental  power  to  make  such  allowances.^  But  this 
power  has  been  denied  by  some  of  the  appellate  courts.^ 

iCralleuCralle,81Va,773;  Jen-  King's  Digest  (Tenn.),  933;  Cope- 
kins  V.  Jenkins,  91  111.  167;  State  v.  land  v.  Copeland,  id.  934;  Pleyte  v. 
Phillips,  33  Fla.  403.  See  contra,  Pleyte,  15  Colo.  135, 35  P.  25;  Helden 
Eohrback  v.  Eohrback,  75  Md.  317,  v.  Helden,  9  Wis.  508;  Krause  v. 
33  A.  610.  Krause,  23  Wis.   354;    Phillips  v. 

2  Butler  V.  Butler,  15  P.  D.  13;  Phillips,  37  Wis.  353;  Coad -y.  Coad, 

Jones  V.  Jones,  3  P.  D.  333.  40  Wis.  392. 

3 See  Goldsmith  v.  Goldsmith,  6  •'Shy  v.  Shy,  54  Tenn.  125;  Wag- 
Mich.  385;  Van  Voorhis  v.  Van  ner  v.  Wagner,  36  Minn.  339. 
Voorhis,  90  Mich.  376;  Stafford  v.  ^Lake  v.  Lake,  16  Nev.  364,  17 
Stafford,  53  Mich.  533;  Skillman  v.  Nev.  330,  30  P.  878.  Approved  in 
Skillman,  18  Mich.  458;  Chaffee  v.  dissenting  opinion,  Ex  parte  Win- 
Chaffee,  14  Mich.  463;  Hoff  v.  Hoff,  ter,  70  Cal.  391. 
48  Mich.  281;  Zeigenfuss  u  Zeigen-  ^Kesler  v.  Kesler,  39  Ind.  153; 
fuss,  31  Mich.  414;   Keel  v.  Keel,  S.  v.  St.  Louis  Ct.  Ap.,  88  Mo.  135 ; 


323  TEMPOEAEY   ALIMONT.  [§  863. 

The  form  of  the  statute  providing  for  temporary  alimony 
in  the  lower  court  is  sometimes  held  to  prohibit  the  appellate 
court  from  exercising  such  power.  Thus  the  California  Code 
provides  that,  "  when  an  action  for  divorce  is  pending,  the 
court  may,  in  its  discretion,  require  the  husband  to  pay,  as 
alimony,  any  money  necessary  to  enable  the  wife  to  support 
herself  or  her  children,  or  to  prosecute  or  defend  the  action." 
This  section  evidently  refers  to  the  lower  court,  but  cer- 
tainly does  not  authorize  such  court  to  grant  alimony  after 
it  has  lost  jurisdiction  by  appeal.  The  court  referred  to 
must  be  one  having  jurisdiction.  "  The  legislature,"  it  is 
said,  "  did  not  intend  to  extend  the  jurisdiction  of  the  dis- 
trict court  to  matters  affecting  the  appellate  court  alone." ' 
But  it  is  held  that  such  statute  contemplates  that  the  lower 
court  may  exercise  this  power  so  long  as  the  action  is  "  pend- 
ing," whether  in  the  lower  or  in  the  appellate  court.^  A 
similar  statute  has  received  the  same  construction  in  'Ne^^' 
York  and  Illinois.*  These  authorities  do  not  deny  that  the 
appellate  court  may  make  further  orders  in  the  case  in  dis- 
posing of  it.  In  fact,  it  must  be  conceded  that  the  appellate 
court  at  all  times  retains  its  inherent  power  to  compel  the 
husband  to  furnish  the  wife  the  means  to  prosecute  or  defend 
the  appeal,  and  that  such  court  cannot  be  deprived  of  such 
power  without  express  prohibition. 

S.  V.  St.  Louis  Ct.  Ap.,  99  Mo.  316.  391;  Larkin  v.  Larkin,  71  Gal.  330; 
But  see,  also,  Lewis  v.  Lewis,  30  Eeilly  v.  Eeilly,  60  Oal.  634;  WolflE 
Mo.  Ap.  546;  Clarkson  v.  Clarkson,  v.  Wolff  (Gal.),  37  P.  858. 
30  Mo.  Ap.  94;  Miller  v.  Miller,  14  'McBride  v.  McBride,  119  N.  T.. 
Mo.  Ap.  418;  Dwyer  v.  Dwyer,  16  519,  23  N.  E.  1065,  affirming  55 
Mo.  Ap.  433.  Where  the  lower  Hun,  401,  and  overruling  McBride 
court  allowed  alimony  after  the  v.  McBride,  6  N.  Y.  Supp.  447; 
appeal  was  perfected  the  supreme  Fagan  v.  Fagan,  39  Hun,  531 ;  Win- 
court  will  not  review  such  order,  ter  v.  Winter,  31  Hun,  290.  See, 
Edwards  v.  Edwards,  80  Ala.  97.  also.  Anonymous,  15  Ab.  Pr.  (N.  S.) 

1  Lake  v.  Lake,  17  Nev.  230.  307;  Halstead  v.  Halstead,  11  Misc. 

2  Bohnert  v.  Bohnert,  91  Gal.  428,  593;  Jenkins  v.  Jenkins,  91  111.  167; 
27  P.  733;  Ex  parte  Winter,  70  Gal.  Hunter  v.  Hunter,  100  111.  477. 


SUIT  MONEY  AND  ATTORNEY'S  FEES. 


^  875.  In  general. 

876.  Action  at  law  for  attorney's 
fees. 

€77.  How  obtained  after  dis- 
missal. 


878.  Number  of  counsel. 

879.  Amount  of  attorney's  fees. 

880.  The  order  for  attorney's  fees. 

881.  Contingent  fee. 
883.  Attorney's  lien. 


§  875.  In  general. —  The  term  suit-money  is  broad  enough 
to  include  attorney's  fees  and  all  costs  and  expenses  of  the 
divorce  proceeding.  The  rules  for  the  application  and  prac- 
tice in  granting  suit-money  do  not  differ  materially  from, 
those  governing  temporary  alimony.  Suit-money  is  in  fact 
■a,  specific  part  only  of  the  temporary  alimony,  and  is  granted 
under  the  same  conditions.  It  is  likewise  subject  to  the 
order  of  the  court,  and  may,  at  its  discretion,  be  increased  or 
diminished  with  the  varying  necessities  of  the  case.^  The 
power  to  award  suit-money  in  an  action  for  divorce  is  gen- 
erally derived  from  the  general  terms  of  the  statutes  which 
refer  to  temporary  alimony.^  But  in  the  absence  of  statu- 
tory provision  it  is  universally  held  that  the  courts  possess 
such  power  as  an  incident  of  the  jurisdiction  to  render  de- 
crees of  divorce  and  ahmony.'  Suit-money  and  attorney's 
fees  are  allowed  or  refused  under  the  same  circumstances  or 


1  Donelly  v.  Donelly,  63  How.  Pr. 
481;  Schloemer  v.  Sohloemer,  49 
TSr.  Y.  83;  Winton  v.  Winton,  13  Ab. 
N.  Cas.  159;  "Winton  v.  Winton,  31 
Hun,  390;  Beadlestonu  Beadleston, 
103  N.  T.  403,  8  N.  E.  735;  Poutney 
V.  Poutney,  10  N.  T.  Supp.  193; 
Stampfer  ■;;.  Stampfer,  11  N.  Y. 
Supp.  558;  Van  Wormer  v.  Van 
Woi-mer,  11  N.  Y.  Supp.  347. 

-  See  statutes  referred  to  in  Mc- 


Quien  v.  McQuien,  61  How.  Pr.  280; 
Green  v.  Green,  40  How.  Pr.  465; 
Meyar  v.  Meyar,  3  Met.  298;  Nikirk 
V.  Nikirk,  3  Met.  438;  Williams  v. 
Monroe,  18  B.  Mon.  514;  Burnham 
V.  Tizard,  31  Neb.  781,  48  N.  W.  823; 
Thomas  v.  Thomas,  7  Bush,  665. 

3  Lake  v.  Lake,  16  Nev.  363 ;  Black 
V.  Black,  5  Mont.  15;  Lamy  v. 
Catron  (N.  Mex),  33  P.  773. 


824  SUIT   MONEY   AND   ATTOKNBT's    FEES.  [§  875;. 

upon  the  same  showing  as  temporary  alimony.  Generally, 
both  are  allowed  in  the  same  order  and  upon  the  same  show- 
ing. In  some  instances  attorney's  fees  have  been  allowed' 
although  temporary  alimony  was  refused.'  The  application 
may  be  denied  if  counsel  have  agreed  to  render  their  serv- 
ices gratuitously.^  The  application  for  attorney's  fees  should 
be  made  as  soon,  as  it  appears  that  the  wife  cannot  pay  the 
same  out  of  her  separate  means.  Such  application  may,, 
however,  be  made  at  any  stage  of  the  proceeding,  after  dis- 
missal, or  after  a  verdict  against  the  wife,  if  she  desires  to^ 
appeal.^  The  amount  of  attorney's  fees  may  be  increased,, 
and  if  an  appeal  is  taken  an  additional  amount  is  sometimes 
allowed,  as  the  first  allowance  does  not  contemplate  any 
services  after  the  decree  is  rendered. 

The  order  of  court  granting  or  refusing  attorney's  fees  is 
a  final  order,  and  is  a  conclusive  adjudication  of  the  ques- 
tion, both  as  to  the  parties  and  the  attorney.  This  must  be- 
true,  for  from  the  nature  of  the  case  the  court  has  jurisdic- 
tion of  the  parties  and  passes  upon  the  merits  of  thp  case  in 
determining  the  amount  which  shall  be  paid,  as  well  as  the- 
necessity  of  such  payment.  After  the  court  has  granted' 
or  refused  attorney's  fees,  its  action  may  be  reviewed  by  the 
appellate  court,  but  otherwise  it  is  a  complete  adjudication.^' 
If  additional  services  are  rendered  the  attorney  niust  apply 
to  the  court  for  compensation.  He  cannot  recover  such, 
compensation  in  an  action  at  law.^   ,:This  doctrine  is  denied' 

1  See  Miller  v.  Miller,  43  How.  Pr.  Shaw,  5  Misc.  497;  Siiin  v.  Sinn,  »; 

135;    McDonough  v.  McDonough,  Misc.  59& 

36  How.  Pr.  193;  Anonymous,  15  2  Mudd  v.  Mudd,  98  Cal.  330, 38  P. 

Ab.  Pr.   (N.  S.)  307;    Anthony  v.  114 

Anthony,  11  N.  J.  Eq.  70;  Douglas  3  gee  Van  Driele  v.  Van  Driele, 

V.  Douglas,  13  Ab.  Pr.  (N.  S.)  391.  58  Mich.  373;  Cooke  v.  Newell,  40^ 

Attorney's  fees  are  gi-anted  where  Conn.  596. 

the  wife  is  able  to  support  herself  ^Dow  v.  Eyster,  79  111.  354;  Eob- 

and  has  a  residence  of.  her  own.  ertson   v.    Artz,   38    111.   Ap.   593; 

She  is  not  required  to  reduce  her  Green  v.  Green,  40  How.  Pr.  465; 

capital  where  her  income  is  insuffl-  McCabe  v.  Britton,  79    Ind.  334;- 

cient  to  pay  the  fees  and  the  hus-  Adams  v.  Adams,  49  Mo.  Ap.  593. 

band  has  ample  means.    Shaw  v.  ^  Burnham  v.  Tizard,  31  Neb.  781,. 


§  876.]  SUIT   MONET   AND    ATTOENEt's    FEES.  82& 

in  Iowa,  where  it  is  held  that  proof  of  the  order  for  attor- 
ney's fees  and  payment  is  not  a  suiBcient  bar  in  a  separate 
action  for  additional  compensation.  "  These  orders,"  it  i& 
said,  ''  are  usually  made  to '  continue  from  term  to  term,  for 
the  reason  that  it  is  impossible  to  determine  at  the  begin- 
ning what  the  necessities  of  the  case  may  require.  It  may 
continue  for  years,  and  the  court  •  cannot  determine  in  ad- 
vance that  any  named  sum  of  money  ought  to  be  a  full 
allowance  for  all  purposes.  This  being  the  nature  of  the 
proceeding,  no  mere  temporary  order  can  be  said  to  be  a 
final  adjudication." '  But  the  question  of  additional  com- 
pensation mi^ht  have  been  determined  in  the  suit  for 
divorce,  and  such  question  is,  therefore,  not  open  to  investi- 
gation in  another  action,  for  the  rule  of  res  adjudicata  ex- 
tends to  all  questions  which  might  have  been  determined  in 
the  action.  The  plea  of  res  adjudicata  cannot  be  sustained 
where  the  services  were  rendered  in  preparing  a  suit  for  di- 
vorce, which  is  settled  by  the  parties  before  the  action  i& 
commenced ;  and  where  the  action  is  dismissed  by  the  col- 
lusive agreement  of  the  parties,  to  avoid  paying  the  fees  of 
the  attorney  for  the  wife,  before  an  application  for  tempo- 
rary alimony  was  made.  It  is  held  in  some  states  that  the 
fees  may  be  recovered  in  a  separate  action.  It  is  clear,  how- 
ever, that  such  dismissal  might  be  set  aside,  and  an  applica- 
tion for  attorney's  fees  may  be  made  and  determined  in  the 
suit  for  divorce,  if  the  rules  of  practice  will  permit. 

§  876.  Action  at  law  for  attorney's  fees.—  Whether  the 
husband  is  liable  in  an  action  at  law  for  services  rendered 
the  wife  in  preparing  and  conducting  a  suit  for  divorce  is 
a  controverted  question.  The  English  doctrine  is  that  he  is 
liable  for  such  services  if  the  suit  is  conducted  in  good  faith 
and  on  probable  cause.  It  is  held  that  the  wife  has  author- 
ity to  pledge  her  husband's  credit  for  the  cost  of  a  divorce 
suit  where  there  was  probable  grounds  for  instituting  the 

48  N.  W.  823;  Clarke  v.  Burke,  65  also,  to  the  same  effect,  Ottaway 
>;v:is.  359.  v.  Hamilton,  3  C.  P.  D.  393. 

1  Clyde  V.  Peavy,  74  la.  47.    See, 


826  SUIT  MONET  AND  attoeney's  rEE3.  [§  876. 

suit,  for  the  proceeding  is  necessary  for  the  wife's  protection. 
"  Where  there  is  reasonable  apprehension  of  violence,"  said 
Orompton,  J.,  "  a  divorce  may  be  the  most  effectual  protec- 
tion, and  it  may  be  a  necessary  within  the  rule  which  au- 
thorizes a  wife,  who  has  left  her  husband  from  apprehension 
of  cruelty,  to  pledge  his  credit  for  what  is  necessary  to  her."  ^ 
The  services  and  expenses  of  an  attornejy  have  been  held 
necessaries  in  suits  other  than  divorce :  such  as  reasonable 
legal  expenses  incurred  by  defending  a  wife  in  a  prosecution 
instituted  by  the  husband ;  ^  or  in  prosecuting  the  husband 
where  the  wife  files  a  complaint  against  him  for  a  breach 
of  the  peace.^  It  was  the  opinion  of  Lord  EUenborough 
that  in  such  a  case  "  she  carried  along  with  her  a  credit  for 
whatever  her  preservation  and  safety  required.  She  had  a 
right  to  appeal  to  the  law  for  protection,  and  she  must 
have  the  means  of  appealing  effectually.  She  might  there- 
fore charge  her  husband  with  the  expense  of  the  proceed- 
ing, as  much  as  for  the  necessary  food  and  raiment."* 
And  upon  the  same  principle  he  is  liable  for  services  ren- 
dered the  wife  in  a  suit  against  him  to  enforce  an  agreement 
to  make  a  marriage  settlement,^  or  to  recover  separate  main- 
tenance.* 

1  Brown  v.  Ackroyd,  5  Ellis  &  Williams  v.  Fowler,  McClel.  &  X 
Bl.  819;  followed  by  Eice  v.  Shep-  369;  Turner  v.  Eookes,  10  A.  &  E. 
herd,  12  C.  B.  (N.  S.)  333,  and  Wil-  47.  ' 
son  V.  Ford,  L.  E.  3  Ex.  63.  It  will  <  Shepherd  v.  Mackoul,  3  Camp, 
be  noticed  in  these  cases  that  the  336.  In  some  instances  the  husband 
■counsel  might  have  obtained  his  is  not  liable  for  the  services  of  pri- 
f  ees  by  application  to  the  divorce  vate  counsel  who  assisted  the  pros- 
court,  so  that  the  husband  is  liable  ecuting  attorney,  as  such  services 
in  the  action  at  law  as  well  as  in  may  be  unnecessary.  The  state, 
-the  divorce  suit.  Ottaway  v.  Ham-  and  not  the  husband,  is  liable  in 
ilton,  3  C.  P.  D.  393.  such  cases.    See  McQuhae  v.  Eey, 


2  Wilson  V.  Ford,  L.  E.  3  Ex.  63 
Warner  v.  Heiden,  38  Wis.  517 
Barker  v.  Hibbard,  54  N.  H.  539 
Eobertson  v.  Artz,  38  lU.  Ap.  593 


3  Misc.  E.  (N.  Y.)  476, 23  N.  Y.  Supp. 
175,  a  Misc.  550;  Grindell  v.  God- 
mand,  3  Har.  &  W.  339. 
5  Wilson  V.  Wilson,  1  Des.  319. 


Turner  v.  Eookes,  10  Adolphus  &       SBueter  v.  Bueter,  1  S.  Dak.  94, 
Ellis,  47.  45  N.  W.  308. 

3  Morris  v.  Palmer,  39  N.  H.  133; 


'§  8T6.]  SUIT    MONEY    AND    ATTOENEY's    FEES.  827 

The  general  rule  for  determining  what  are  necessaries  for 
the  wife  has  been  stated  in  a  recent  case  in  Massachusetts, 
it  which  it  is  held  that  "  whatever  actually  and  reasonably 
tends  to  relieve  distress,  or  materially  and  in  some  essential 
particular  to  promote  comfort,  either  of  body  or  mind,  may 
be  deemed  a  necessary  for  which  a  wife,  under  proper  cir- 
cumstances, may  pledge  her  husband's  credit.  .  .  .  Ap- 
proximation may  sometimes  be  made  by  holding  that  certain 
articles  or  services  are  to  be  deemed  outside  of  any  reason- 
able construction  of  the  term.  But  legal  services  do  not  fall 
-within  such  universal  or  general  exclusion.  There  may  be 
occasions  when  such  services  are  absolutely  essential  for  the 
relief  of  a  wife's  physical  or  mental  distress.  Suing  out  a 
writ  of  habeas  corpus  to  deliver  herself  from  unjust  or  ille- 
gal imprisonment  is  an  illustration  of  the  rule."  ^ 

It  may  be  considered  well-established  law  that  legal 
services  rendered  the  wife  are  within  the  definition  of  neces- 
saries, and  it  is  difficult  to  assign  any  good  reason  why  such 
services,  when  rendered  in  a  suit  for  divorce,  are  not  neces- 
saries. The  relief  demanded  is  a  legal  separation  or  a  disso- 
lution of  the  marriage,  and  the  division  of  the  property  or 
suitable  alimony.  The  law  recognizes  the  liability  of  the 
husband  to  furnish  her  the  necessary  means  to  enforce  or 
defend  her  marital  rights  in  the  divorce  suit,  and  compels 
hJTn  by  summary  methods  to  furnish  such  means.  The  ne- 
cessity of  such  legal  services  is  so  manifest  in  the  proceeding 
for  divorce  as  to  admit  of  no  argument.  It  is  a  presump- 
tion of  law  that  such  services  are  necessary,  and  attorney's 
fees  are  allowed  upon  proof  that  the  wife  has  a  probable 
cause  for  divorce,  and  that  she  has  not  sufficient  means  to 
prosecute  the  suit,  while  her  husband  has  property.  If, 
under  proper  circumstances,  legal  services  are  necessaries 
within  the  definition  of  that  term  at  common  law,  it  must 
follow  that  such  services  are  necessaries  in  actions  to  obtain 
a  separate  maintenance,  or  alimony  without  divorce,  or  even 
a  dissolution  of  the  marriage. 

1  Conant  v.  Burnham,  133  Mass.  505, 


828  SUIT   MONEY   AND    ATTOENEy's    FEES.  [§  876, 

In  some  of  our  states  the  courts  have  followed  the  English 
doctrine  that  the  usual  method  of  obtaining  attorney  fees  in 
the  action  for  divorce  is  not  exclusive,  but  that  when  the  di- 
vorce suit  is  no  longer  pending,  or  the  services  were  rendered 
in  preparing  a  suit  which  was  not  commenced,  the  attorney 
for  the  wife  may  recover  the  value  of  his  legal  services  in  an 
action  at  law.^  And  this  is  deemed  to  be  the  better  .doctrine, 
as  it  is  in  accord  with  the  principles  of  the  common  law. 

But  it  is  held  by  the  greater  number  of  American  authori- 
ties that  legal  service^  rendered  the  wife  in  prosecuting  or 
defending  a  suit  for  divorce  are  not  such  necessaries  as  the 
law  requires  the  husband  to  furnish,  and  that  he  is  not  liable, 
for  such  services  in  an  action  at  law.^  The  ea,rly  cases  seem 
to  have  considered  a  divorce  suit  as  unnecessary  for  the  pro- 
tection of  the  wife,  and  held  such  proceedings  as  a  kind  of 
luxury,  tending  to  promote  discord  and  the  destruction  of 
the  marriage  relation.  The  most  cogent  reason  that  was  as- 
signed was  that  "  the  duty  of  providing  necessaries  for  the 
wife  is  strictly  marital,  and  is  imposed  hy  the  common  law  in 
reference  only  to  a  state  of  coverture  and  not  of  divorce.  By 
that  law  the  contract  of  marriage  was  and  is  indissoluble, 
and  therefore  by  it  the  husband  could  never  have  been  placed 
under  obligation  to  provide  for  its  dissolution.  Such  an 
event  was  a  legal  impossibility." »    But  this  reason  is  not 

1  Porter  v.  Briggs,  38  la.  166;  Newell,  40  Conn.  596;  Dow  i;.  Eys- 
Preston  v.  Johnson,  65  la.  385;  ter,  79  111.  354;  Stein  v.  Blake,  56 
Clyde  u  Pea vy,  74  la.  47;  Eaton  i;.  111.  535;  Phillips  v.  Simmons,  11 
Peavy,  75  la.  740;  Sherwin  v.  Ab.  Pr.  (N.  Y.)  388;  Williams  v. 
Maben,  78  la.  467;  Gossett  v.  Pat-  Monroe,  18  B.  Mon.  514;  Dorsey  r. 
ten,  33  Kan.  340;  McCurley  v.  Goodenow,  Wright,  ISO;  Johnson 
Stookbridge,  63  Md.  433;  Spray-  u  Williams,  3  G.  Greene  (la.),  97; 
berry  v.  Merk,  30  Ga.  81;  Glenn  v.  McCulloch  v.  Eobinson,  3  Ind.  680; 
Hill,  50  Ga.  94;  LangbeinuSohnei-  Coffin  v.  Dunham,  63  Mass.  404; 
der,  16  N.  Y.  Supp.  943,  27  Ab.  N.  Thompson  v.  Thompson,  40  Tenn. 
Cas.  338.  (3  Head),  527;  Pearson  v.  Darring- 

2  Wing  u  Hurlbnrt,  15  Vt.  607;  ton,  32  Ala.  329. 

Kincheloe    v.  Merriman,   54  Ark.  ^Shelton  v.  Pendleton,  18  Conn. 

5.57;  Clarke  v.  Burke,  65  Wis.  859;  417,  approved  in  Clarke  v.  Burke, 

Morrison  v.  Holt,  42  N.  H.  478;  Bay  65  Wis.  359. 
V.  Adden,  50  N.   H.  82;   Cooke  v. 


§  8t6.]  SUIT   MONEY   AND    ATTOKNEy's    FEES.  829 

altogether  satisfactory,  since  the  principles  of  the  common 
law  are  applicable  to  new  and  anomalous  conditions  created 
by  statute.  If  legal  services  rendered  in  a  suit  for  separa- 
tion are  necessaries,  it  would  seem  to  follow  that  such  serv- 
ices in  a  suit  for  a  dissolution  would  be  necessaries  within 
the  reason  and  policy  of  the  common  law,  as  the  liability 
was  created  before  the  marriage  was  dissolved.^ 

The  liability  of  the  wife  for  the  services  of  an  attorney  is 
clear  where  she  is  permitted  to  contract  with  reference  to 
her  separate  property  by  that  form  of  statute  known  as  the 
Married  "Women's  Act.  And  it  is  held  in  a  recent  case  that 
a  married  woman  may  bind  herself  for  the  services  of  an 
attorney  rendered  in  preparing  and  commencing  a  suit  for 
divorce  which  was  afterwards  discontinued  at  her  request 
before  any  allowance  was  made  for  her  attorney.  It  was  con- 
tended in  her  behalf  that  her  husband  was  liable,  and  that 
such  services  were  not  rendered  Avith  reference  to  her  sepa- 
rate estate ;  but  this  was  denied  on  the  ground  that  the  stat- 
ute contemplated  her  right  to  sue  and  her  liability  for  the 
costs  unless  the  court  made  the  husband  liable  therefor  in 
the  divorce  suit.  "  The  statute,"  it  was  said,  "  clearly  indi- 
cates that  such  proceedings  are  to  be  maintained  at  the  cost 
'of  the  wife,  unless  the  court  shall  relieve  her  of  such  cost 
by  an  order  for  expense  money  to  be  paid  by  her  husband. 
It  has  also  been  held  in  this  state  that  a  married  woman,  is 
competent  to  assert  her  rights  either  as  plaintiff  or  defend- 
ant, and,  where  a  suit  is  brought  against  her  as  defendant, 
is  bound  to  do  so.^  It  would  seem  to  follow  logically  that, 
having  the  power  to  bring  suit,  and  being  in  such  suit  re- 
sponsible for  costs,  she  must  be  held  competent  to  contract 
for  the  services  of  an  attorney  to  represent  her  rights.    We 

1 A  married  woman  cannot  bind  And  her  promise  cannot  be   en- 

herself  at  common  law  to  pay  for  forced  after  the  marriage  is  dis- 

the  services  of  an  attorney  in  a  di-  solved  by  divorce.    Mnsick  v.  Dob- 

vorce  suit  whether  she  is  plaintifiE  son,  76  Mo.  624;  Putnam  v.  Tenny- 

or  defendant.     Cook  v.  Walton,  38  son,  50  Ind.  456. 

Ind.  328 ;  McCabe  v.  Britton,  79  Ind.  2  Wilson  v.  Coolidge,  43  Mich.  113. 
234;  Viser  v.  Bertrand,  14  Ark.  367. 


830  SUIT   MONET    AND   ATTOENEt's    FEES.  [§  87T- 

think  the  right  to  contract  for  such  services  is  necessarily- 
incident  to  and  included  in  her  right  to  bring  the  suit." ' 

§  877.  How  obtained  after  dismissal.—  Frequently  family 
quarrels  and  the  divorce  suits  which  grow  out  of  them  are 
settled  by  the  parties,  and  the  action  dismissed  without  no- 
tice to  the  wife's  attorney,  and  without  paying  the  attorney 
for  his  "services.  It  then  becomes  a  difficult  question  how 
to  proceed  to  recover  the  fees  which  are  equitably  due. 
Where,  as  in  England,  the  action  cannot  be  dismissed  with- 
out the  action  of  the  court,  the  order  of  dismissal  will  not 
be  rendered  until  the  attorney  is  paid.^  "Where  attorneys 
have  notice  of  the  dismissal  and  oppose  it  because  their  fees 
are  not  paid,  the  court  should  allow  them  a  reasonable  fee 
based  upon  the  services  already  rendered,  but  in  some  in- 
stances the  courts  have  declined  to  do  this.'  It  is  clear  that 
after  an  order  for  attorney's  fees  have  been  entered,  the  vol- 
untary dismissal  of  the  suit  by  the  wife  will  not  invalidate 
such  order.*  Eut  the  fact  that  the  action  is  dismissed  may 
_  be  urged  to  diminish  the  amount  ordered,  since  aU  the  serv- 
ices contemplated,  such  as  preparing  the  evidence  and  con- 
ducting a  trial,  have  not  been  rendered.' 

The  attorney  who  appears  for  the  wife  and  does  not  look 
to  her  for  compensation  for  his  services  has  a  right  to  pro- 
ceed in  the  case  with  the  assurance  that  a  suitable  fee  will 

1  Wolcott  V.  Patterson,  100  Mich,  court,  or  in  the  hands  of  a   re- 

337,  58  N.  W.  1006.   The  statute  re-  ceiver." 

f erred  to  is  as  follows:    2  How.  2 Dixon  u  Dixon,  3  P.  &  M.  353; 

Ann.   St.,  §  6235:  "In  every  suit  Twistleton  v.  Twistleton, 3  P.  & M. 

brought,  either  for  a  divorce  or  for  339.    See  same  practice,  ©reen  v. 

a  separation,  the  court  may  in  its  Green,  40  How.  Pr.  465;  Burgess  v. 

discretion  require  the  husband  to  Burgess,  1  Duv.  388. 

pay  any  sums  necessary  to  enable  3  Eeynolds  v.  Eeynolds,  67  Cal. 

the  wife  to  carry  on  or  defend  the  176;  Gregory  v.  Gregory,  33  N.  J. 

suit  during  its  pendency,  and  it  Eq.  434. 

may  decree   costs  against  either  <  People  v.  Dist.  Court  (Cal.),  40 

party  and  award  execution  for  the  P.   460:  Traylor  v.  Richardson,  3 

same,  or  it  may  direct  such  costs  Ind.  App.  453,38  N.E.  305;  Weaver- 

to  be  paid  out  of  any  property  se-  v.  Weaver,  38  Ga.  173. 

questered  or  in  the  p^wer  of  the  s  Waters  v.  Waters,  49  Mo.  885. 


§  87Y.]  SUIT   MONEY   AND    ATTOENEy's    FEES.  831 

be  awarded  to  him  by  the  court,  unless  his'  case  is  without 
merit  or  probable  cause.  He  is  acting  to  a  great  extent  a» 
an  officer  of  the  court,  and  has  an  equitable  right  to  an 
order  in  the  proceeding  compelling  the  husband  to  pay  for 
his  services.  ]Sreither  party  should  have  the  assistance  of 
the  court  in  avoiding  the  payment  of  what  is  justly  due  the- 
wife's  attorney  for  his  services.  If  the  parties  have  settled 
their  difficulties  and  dismissed  the  suit  without  paying  the 
Avife's  attorney,  he  has  the  choice  of  two  remedies :  either 
to  sue  the  husband  in  an  action  at  law,  or  to  have  the  di- 
vorce suit  reinstated,  and  apply  to  the  court  for  an  order  for 
the  fees.  The  latter  method  is  to  be  preferred;  as  it  is  an 
open  question  whether  the  husband  is  liable  in  an  action  at 
law.  Even  where  the  suit  has  been  dismissed  by  stipulation 
of  the  parties  or  by  the  court,  the  attorneys  for  the  wife 
may  have  such  dismissal  set  aside,  and  an  order  entered  for 
the  payment  of  a  certain  sum  to  the  wife  as  fees.^  It  is 
said  that  the  p6wer  to  enforce  the  attorney's  rights  after  a 
settlement  by  the  parties  is  founded  upon  the  familiar  prin- 
ciple of  equity,  that,  where  a  court  of  equity  has  acquired 
jurisdiction  over  the  parties  and  the  subject-matter  of  the- 
action,  it  wiU  retain  jurisdiction  until  complete  justice  is  done 
to  all  parties.^  In  some  instances  it  has  been  held  that  the- 
attorneys  are  not  entitled  to  an  order  for  fees  if  the  action 
was  tried  and  the  wife  did  not  succeed;  as- this  is  an  adjudi- 
cation that  the  action  should  not  have  been  brought.^  With 
all  respect  to  these  authorities,  it  is  submitted  that  if  the 
attorney  acted  in  good  faith,  and  there  was  a  probable  cause 

1  Courtney  v.   Courtney,  4  Ind.  2  Chase  v.  Chase,  65  How.  Pr.  306, 

App.  221 ;  Aspinwall  v.  Sabin,  22  reversed  for  lack  of  proper  notice. 

Neb.  73;  Davis  v.  Davis  (Ind.),  40  29  Hun,  527. 

N.  E.  802;  Thomdike  v.  Thorn  dike,  'Wagner  v.  Wagner,  84  Minn. 

1  Wash.  Ter.  175;  Londen  v.  Lon-  441;  Newman  v.  Newman,  69  111. 

den,   65  How.   Pr.   411:    Moore   v.  167;  McCulloch  v.  Murphy,  45  111. 

Moore,   10  Ontario  Pr.   Rep.   284;  256;  Reynolds  v.  Reynolds,  67  Cal. 

Smith  V.  Smith,  35  Hun,  878,  af-  176;    Thompson  v.  Thompson,  4» 

firmed,  99  N.  Y.  689;  Lamy  v.  Ca-  Tenn.  (8  Head),  536. 
tron  iN.  Mex.),  23  P.  778 


S32  SUIT   MOITET   AND    ATTOENEy's    FEES.  [§  878. 

for  divorce,  he  is  entitled  to  compensation  for  his  services, 
although  no  divorce  was  granted.  It  is  sometimes  held  that 
the  application  for  attorney's  fees  is  too  late  after  the  settle- 
ment of  the  parties  or  a  dismissal  of  the  action ;  that  such 
allowance  is  for  the  future;  and  as  nothing  further  is  to  be 
done,  there  is  no  necessity  for  further  expense.'  But  this 
is  not  a  suificient  reason  for  permitting  the  husband  to  escape 
the  payment  of  what  is  justly  due  for  the  services  rendered, 
with  the  expectation  that  a  suitable  allowance  would  be 
made  by  the  court. 

As  to  the  moral  aspect  of  the  case,  it  may  be  said  that 
suits  for  divorce  should  be  discouraged  by  denying  attorney 
fees  in  every  instance  where  the  wife  does  not  procure  a 
decree.  But  a  sound  policy  would  seem  to  require  the  pay- 
ment of  what  has  in  fact  been  earned  in  order  that  the  hus- 
band should  meet  just  obligations.  Such  a  policy  will  have 
a  wholesome  effect  in  repressing  future  quarrels  and  diffi- 
culties, and  teach  the  parties  that  they  cannot  appeal  to  the 
courts  with  petty  cases  without  the  expenditure  of  consid- 
erable sums.- 

§  878.  Number  of  counsel.—  The  court  should  limit  the 
number  of  counsel  so  that  the  amount  allowed  for  their 
fees  shall  not  be  improper  or  oppressive.  ISTo  particular 
number  has  been  prescribed.  The  number  of  counsel  nee-, 
essary  must  be  determined  from  the  nature  of  the  case,  the 
usages  of  the  court,  and  the  number  employed  by  the  hus- 

1  Beadlestbn  u  Beadleston,  9  Civil  thereof  in  vacation  may  make 
Pro.  440;  Wilde  v.  Wilde,  3  Nev.  .  .  .  such  orders  relative  to  the 
^06.  expenses  of  such  suit  as  wiU  in- 

2  A  wife's  suit  for  divorce  was  sure  the  wife  an  eflScient  prepara- 
dismissed  at  her  costs.  In  due  tion  of  her  case  and  a  fair  and  im- 
time  she  applied  to  have  the  de-  partial  trial  thereof."  It  was  held 
-cree  set  aside  and  for  an  allow-  that  the  court  had  the  power  to 
ance  for  costs  and  attorney  fees  in  modify  the  decree  and  grant  one 
addition  to  the  allowance  made  additional  allowance  to  the  wife 
before  decree.  The  statute  pro-  for  costs  and  attorney  fees.  Davis 
vided  that  "Pending  a  suit  for  di-  v.  Davis  (Ind.),  40  N.  E.  803. 
vorce    the    court    or    the    judge 


§  879.]  SUIT   MONET   AND    ATTOENEy's    FEES.  833 

band.'  It  has  been  held  that  four  or  five  are  too  many,^  or 
that  one,  or  the  members  of  one  firm,  will  be  enough  under 
ordinary  circumstances.'  In  a  Wisconsin  case  the  wife  em- 
ployed two  able  counsel ;  and  when  the  husband  employed 
the  same  number  she  employed  a  third  counsel.  The  su- 
preme court  Avas  of  the  opinion  that  any  one  of  the  three 
eminent  counsel  employed  by  the  wife  could  have  conducted 
the  trial  alone,  and  reduced  the  amount  to  about  one  fee, 
although  the  husband  had  ample  means.^  It  would  seem, 
however,  that  the  wife  should  have  as  many  counsel  as  the 
husband  had  found  it  necessary  to  employ  for  himself.*  In 
the  Sharon  case  the  trial  court  permitted  the  employment 
of  six  lawyers  to  present  the  merits  of  the  plaintiff's  cause. 
The  supreme  court  considered  this  "  an  undeserved  reflec- 
tion upon  the  administration  of  justice  "  in  the  trial  court, 
and  that  such  number  was  unreasonable  and  unnecessary.^ 
The  fact  that  one  attorney  is  employed  by  the  wife  upon  a 
contingent  fee  will  be  good  ground  for  denying  an  allow- 
ance unless  others  are  employed  with  him,  when  an  allow- 
ance may  be  made.' 

§  879.  Amount  of  attorney's  fees. —  The  court  may  exer- 
cise its  discretion  in  fixing  the  amount  allowed  as  attorney's 
fees,  keeping  in  view  the  nature  of  the  case  and  the  means 
of  the  husband  as  weU  as  the  nature  and  extent  of  the  serv- 
ices to  be  required.  The  allowance,  when  made  in  advance 
of  the  trial,  should  be  influenced  by  many  considerations 
which  affect  the  allowance  for  temporary  alimony,  of  which 
it  is  a  part.  The  amount  should  be  conservative,  as  the 
cause  may  never  reach  trial,  and  if  more  labor  be  ex- 
pended than  was  anticipated  an  additional  allowance  may 
be  made  after  the  trial.     Generally  the  court  determines 

iSeeUhlman  v.  Uhlman,  51  N.  520;    Burgess  v.  Burgess,   1  Duv. 

Y.  Supr.  361;  Money  v.  Money,  1  (Ky.)  387. 
Spinks,  117.  *Williamsu  Williams,  29  Wis.  517. 

iiRawson  v.  Rawson,  37  IlL  Ap.        5  See  Shy  v.  Shy,  54  Tenn.  125; 

491;  Dugan  v.  Dugan,  1  Duv.  (Ky.)  Baldwin  v.  Baldwin,  6  Gray,  341. 


289. 


6  Sharon  v.  Sharon,  75  Cal.  1. 


3  Whitney  v.  Whitney,  7  Bush,       'White  v.  White,  86  Cal.  312, 216. 
53 


834 


SUIT   MONET    AND   ATTOKNEy's    FEES. 


[§,879, 


what  will  be  a  reasonable  fee  in  the  case  without  hearing^ 
any  evidence  on  that  point.^  Ko  amount  can  be  fixed  as 
reasonable  in  all  cases.  The  court  must  determine  what  is 
necessary  for  the  protection  of  the  rights  of  the  wife.  But 
'  little  aid  can  be  obtained  from  the  reports,  as  all  the  facts 
are  not  stated ;  and  yet  it  is  believed  that  the  matter  in  note 
below  may  be  of  some  assistance.^ 

"When  an  appeal  is  taken,  the  whole  case  is  open  for  re- 
■saew  upon  the  evidence,  and  while  the  courts  hesitate  to 
disturb  discretionary  orders,  it  seems  that  the  order  for  at- 

1  De  Lamosas  v.  De  Lamosas,  63    Boyce,  27  N.  J.  Eq.  433;  Smith  v 


N.  Y.  618;  Peyre  v.  Peyre,  79  Cal. 
336.  But  see  contra,  Whitney  v. 
Whitney,  7  Bush,  520;  Jeter  v. 
Jeter,  36  Ala.  391. 


Smith,  40  N.  J.  Eq.  602;  Ewing«. 
Ewing,  4  A.  651 ;  Cowsnnv.  Cowan, 
10  Colo.  540;  Friend  v.  Friend,  53 
Mich.  543.    $500  allowed  in  Cane  v. 


2  The  sum  of  |100  is  said  to  be  a    Cane,  39  N.  J.  Eq.  148,  for  usual 


common  fee  for  the  trial  of  a  suit 
for  divorce.  Shy  v.  Shy,  54  Tenn. 
(7  Heisk.)  125;  Lishey  v.  Lishey,  2 
Tenn.  Ch.  1;  Vroom  v.  Marsh,  29 
N.  J.  Eq.  15;  Poutney  v.  Poutney, 
10  N.  J.  Supp.  192;  Umlauf  v.  Um- 
lauf,  138IU.378;  Meathe  u  Meathe, 


labor  in  defending  the  wife.  See, 
also,  Pauly  v.  Pauly,  69  Wis.  419;. 
Varney  v.  Varney,  53  Wis.  130. 

In  Walsh  v.  Walsh,  61  Mich.  554, 
$1,500  was  allowed  on  appeal. 

In  Meyar  v.  Meyar,  3  Met.  (Ky.) 
298,  |25  was  allowed  for  services 


83  Mich.  150 ;  Harran  v.  Harran,  85    in  vacating  a  decree  and  conduct- 


Wis.  399,  55  N.  W.  400. 

In  the  following  cases  $150  was 
allowed:   McConahey  v.  McCona- 


ing  new  trial. 

In  Donnelly  v.  Donnelly,  63  How. 
Pr.  481,  $95  was  allowed  for  serv- 


hey,  31  Neb.  463 ;  Day  v.  Day,  84    ices  on  appeal. 


la.  231,  50  N.  W.  979;  Bueter  v. 
Bueter,  1  S.  Dak.  94,  45  N.  W.  208; 
Young  V.  Young  (Ky.),  15  S.  W.  780; 
Gordon  v.  Gordon,  141  111.  160,  30 
N.  E.  446. 

Sometimes  $200  is  not  considered 
excessive.  Doolittle  v.  Doolittle, 
78  la.  691;  Burgess  v.  Burgess,  1 
Duv.  287. 

The  following  amounts  have 
been  allowed:  $250,  Douglas  v. 
Douglas,  81  la.  358;  Winton  v. 
Winton,  13  Ab.  K  Cas.  159.  $390, 
Ayers  v.  Ayers,  41  111.  Ap.  336. 
I  for  trial  and  appeal,  Boyce  v. 


In  Melvin  v.  Melvin,  130  Pa.  6, 
$100  was  allowed  on  appeal. 

Where  the  husband  is  a  laborer, 
$25  is  a  reasonable  fee.  Davis  v. 
Davis,  36  111.  Ap.  643. 

Under  the  circumstances  of  the 
case,  held  that  $60  was  not  excess- 
ive.   Potts  V.  Potts,  68  Mich.  492. 

Where  the  suit  involves  the  va- 
lidity of  three  marriages  and  the 
laws  of  four  different  states,  a  fee 
of  $750  is  not  unreasonable  where 
husband  has  an  annual  income  of 
$20,000.    Sinn  v.  Sinn,  3  Misc.  598. 


§  880.]  SUIT  MoiirET  AND  attoenet's  fees.  835 

tornej^'s  fees  is  often  changed  with  great  freedom,  and  the 
amount  reduced  to  what  the  appellate  court  deems  a  reason- 
able fee.  Eeasons  for  holding  a  fee  excessive  are  seldom 
given;  but  the  extent  of  the  services  rendered  is  often 
stated.' 

§  880.  The  order  for  attorney's  fees.— While  the  wife's- 
attorney  is  the  real  party  in  interest  in  obtaining  the  allow- 
ance, yet  he  is  not  a  party  to  the  suit ;  and  the  order  must 
be  that  the  amount  be  paid  to  the  clerk  of  the  court,  or  to 
the  wife  for  the  u^e  of  the  attorney.^  An  order  to  pay  a 
certain  sum  to  an  attorney  is  irregular.'  The  court  cannot 
enter  a  direct  judgment  in  favor  of  a  person  not  a  party  to 
the  suit.*  The  order  should  be  entered  separately,'  and  not 
included  in  the  final  decree.*  An  order  to  pay  attorney 
fees  to  the  attorney  is  not  void  but  merely  irregular.''  On 
appeal  the  order  will  be  corrected  without  a  reversal.'  The 
order  for  attorney  fees  is  enforced  like  an  order  for  tempo- 
rary alimony.  In  some  instances  the  court  may  deny  any 
matter  of  favor  until  its  order  is  complied  with."  The  court 
may  refuse  to  dismiss  the  action  until  the  attorneys  are 
paid.'"  Where  the  husband  refuses  to  comply  with  the  order 
of  the  court,  resort  may  be  had  to  contempt  proceedings,  as 
if  the  order  were  for  alimony  alone."    Where  the  statute 

1  In  Williams  t'.  "Williams,  29  Wis.  Supp.  645;  Mercer  v.  Mercer,  35 
517,  a  fee  of  $2,600  for  three  counsel  N.  Y.  Supp.  867;  Straus  v.  Straus, 
was  held  excessive  and  reduced  to    23  N.  Y.  Supp.  567. 

$600.    Blake  v.  Blake,  70   IlL  618,  '  People  v.  District  Court  (Cal.), 

$6,000  reduced  to  S2,000.    Miller  r.  40  P.  460. 

Miller,  43  la.  325,  .$700  reduced  to  s  storke  v.  Storke,  99  Cal.  631,  34 

$300.  Raymond  v.  Raymond,  13  111.  P.  339. 

Ap.  189,  $250  reduced  to  $125.  » Farnham  v.  Famham,  9  How. 

2  Van  Duzer  v.  Van  Duzer,  05  la.  Pr.  231. 

625.  '"  Courtney  v.  Courtney,  4  Ind.  Ap. 

3  Sharon  v.  Sharon,  75  Cal.  1.  221;  Cooper  v.  Cooper,  3  Swab.  & 
*  Robinson  r.  Robinson,  79  Cal.    T.  393;  Dixon  v.  Dixon,  3  P.  &  M. 

511 ;  Parker  v.  Parker  (Miss.),  14  So.  253. 

459,  11  See  Ballard  v.  Caperton,  2  Met. 

5  See.  form  of  order  in  Traylor  v.  413;  Pritchard  w  Pritohard,  4  Abb. 

Richardson,  3  Ind.  Ap.  453.  N.  Cas.  398;  Branth  v.  Branth,  20 

«  Williams  v.  Williams,  6  N.  Y,  Civil  Pro.  33. 


836  SUIT   MONEY   AND   ATTOKNEt's    FEES.       [§§  881,  882. 

authorizes  an  execution  to  issue,  other  remedies  al-e  not  ex- 
cluded. Such  statute  does  not  deprive  a  court  of  its  inher- 
ent power  to  punish  for  contempt.^ 

§  881.  Contingent  fee. —  An  agreement  with  the  wife  that 
her  attorneys  shall  receive  a  portion  of  the  amount  of  ali- 
mony obtained  is  champertous  and  void  as  against  public 
policy.  Agreements  for  contingent  fees  are  objectionable 
in  ordinary  actions,  but  in  actions  for  divorce  this  kind  of 
agreement  is  particularly  vicious.  The  wife's  attorney  be- 
comes an  interested  party  in  the  proceeding,  and  ceases  to 
act  in  the  capacity  of  a  legal  adviser  and  an  officer  of  the 
court.  His  concern  is  to  ignore  any  rights  of  his  client 
Avhich  interfere  with  the  decree  for  alimony,  and,  if  he  fol- 
lows his  own  interest,  he  encourages  divorce  and  discourages 
all  attempts  at  reconciliation.  It  is  also  a  fraud  upon  the 
court  to  obtain  the  allowance  for  the  wife's  support  and  di- 
vert the  fund  for  other  purposes,  especially  Avhere  the  court 
makes  a  reasonable  allowance  for  attorney  fees.  The  courts 
discourage  such  agreements ;  and  if,  in  the  progress  of  the 
trial,  the  court  discovers  that  an  attorney  has  rendered  his 
services  upon  a  contingent  fee,  no  allowance  for  attorney's 
fees  will  be  made.'  If  the  wife  has  other  attorneys  who  are 
not  parties  to  the  champertous  agreement,  an  allowance  will 
be  made  for  their  services.'  Although  the  wife  has  assigned 
a  portion  of  the  alimony  to  her  attorneys  as  their  fees,  she 
may  recover  any  portion  of  her  alimony  held  by  them  under 
such  agreement.* 

§  882.  Attorney's  lien. —  The  allowance  made  by  the 
court  for  the  maintenance  of  the  wife  is  ordinarily  exempt 
from  all  liens  and  claims  of  creditors,  on  the  ground  that 
public  policy  requires  that  the  divoi-ced  wife  shall  not  be 
left  destitute  to  become  dependent  upon  the  state  for  sup- 

1  People  V.  Dist.  Court  (Cal.),  40    170.    See  in  this  case  form  of  con- 
P.  460.  tract  held  champertous,  and  also 

2  Sharon  v.  Sharon,  75  Cal.  1.  remarks  of  the  court  concerning 

3  White  V.  White,  86  Cal.  213.  reprehensible  conduct  of  attorneys 
*  Jordan  v.  Westerman,  63  Mich,    in  preventing  reconciliation. 


§  882.]  SUIT   MONET    AND    ATTOENEy's    FEES.  837 

port.  A  court  of  equity  will  not  allow  this  fund  to  be  di- 
verted to  any  other  purpose  except  her  support.  It  follows, 
therefore,  that  her  assignment  of  a  portion  of  the  alimony 
awarded  her  is  void  and  will  not  be  enforced.'  And  an  at- 
torney is  not  entitled  to  a  lien  upon  payments  of  alimony 
in  his  hands,  as  this  would  defeat  the  purpose  of  the  allow- 
ance. There  are,  however,  some  circumstances  in  which  a 
lien  for  services  and  costs  advanced  will  be  permitted  by  the 
court  granting  the  alimony.  If  the  allowance  provides  for 
a  certain  sum  for  attorney's  fees,  the  attorney  would  have 
a  lien  for  that  amount,  but  not  for  a  greater  sum.  And  it 
seems  that  her  attorneys  may  have  a  lien  where  alimony  is 
allowed  in  gross,  but  the  court  has  the  power  to  determine 
what  is  a  reasonable  fee  in  such  case.^  An  attorney's  lien 
for  fees  and  costs  advanced  was  sustained  in  an  English  case 
where  arrears  of  temporary  alimony  were  paid  upon  an 
order  of  the  court  entered  when  the  husband  dismissed  the 
action.  The  wife  claimed  the  fund  as  exempt  for  her  sep- 
arate maintenance ;  but  the  court  was  of  the  opinion  that 
as  the  wife  had  authorized  the  payment  of  the  alimony  to 
her  attorney,  he  liad  a  lien  upon  the  same  as  in  other  cases 
between  attorney  and  client.'  Under  the  circumstances  the 
court  had  the  power  to  apply  the  alimony  to  the  payment 
of  attorney's  fees;  as  the  marriage  was  not  dissolved,  and 
the  husband  was  still  liable  for  her  maintenance. 

1  Jordan  n  Westerman,  63  Mich.       '  Brenner,  Ex  parte,  1  P.  &  M. 
170.  354. 

2  State  V.  Saclis,  3  Wash.  St.  371. 


PERMANENT  ALIJ^IONY 


§  900. 

In  generaL 

§  909. 

901. 

Permanent  alimony  of  the 

common  law. 

910. 

903. 

Permanent  alimony  on  de- 
cree of  separation. 

911. 

903. 

Distinction  between  com- 
mon-law and  statutory 

913. 

alimony. 

913. 

904. 

Liability  of  wife  to  pay  the 

husband  alimony. 

914. 

905. 

When  alimony  is  refused. 

905a 

Annulment  of  marriage. 

915. 

90S. 

Alimony  where  a  divorce  is 

4enied. 

916. 

907. 

"When  a  guilty  wife  may 

receive  alimony. 

917. 

908. 

The  amount  of  the  perma,- 

nent  allowance. 

918. 

Compensation  for  the  wife's 
property  rights. 

Compensation  for  injuries. 

Compensation  for  loss  of 
support. 

The  husband's  income  and 
property. 

The  wife's  income  and  prop- 
.  erty. 

The  support  of  the  chil- 
dren. 

Agreements  relating  to  ali- 
mony. 

Other  circumstanceswhich 
determine  the  amount. 

Allowance  where  the  hus- 
band has  no  property. 

Pleading  and  practice. 

§  900.  In  general. —  It  is  the  duty  of  the  husband  to  sup- 
port the  wife  according  to  his  ability  and  in  a  manner  suit- 
able to  his  fortune  and  condition.  If  a  judicial  separation 
or  an  absolute  divorce  is  rendered  for  the  fault  of  the  hus- 
band, he  is  not  relieved  from  this  liability  for  support.  After 
divorce  this  liability  is  continued  in  the  form  of  a  decree  for 
a  certain  sum  of  money  payable  to  the  wife.  For  the  wife, 
if  compelled  by  his  misconduct  to  seek  the  aid  of  the  court, 
does  not  forfeit  her  property  rights.  This  allowance  to  the 
wife  upon  a  decree  of  divorce  from  bed  and  board  was  at 
common  law  called  permanent  alimony.  We  have  no  special 
term  in  this  country  for  the  allowance  made  to  the  wife 
after  a  decree  of  divorce  dissolving  the  bonds  of  matrimony. 
Such  allowance  is  generally  called  "  permanent  alimony ; " 
but  this  term  does  not  distinguish  between  the  two  kinds  of 


§  900.]  PERMANENT   ALIMONY.  •         839 

decrees  of  divorce,  partial  and  absolute.  In  England  the 
allowance  made  for  the  wife  upon  an  absolute  divorce  is 
called  a  "  permanent  maintenance,"  and  the  term  "  perma- 
nent alimony  "  retains  its  common-law  meaning.  The  decree 
providing  for  the  support  of  the  wife,  after  an  absolute  di- 
vorce, is  called  a  "  permanent  allowance  "  in  California,  and 
perhaps  this  statutory  term  is  used  in  other  states.' 

Our  courts  have  so  often  found  it  necessary  to  distinguish 
between  the  permanent  alimony  of  the  common  law  and  the 
permanent  allowance  of  the  statutes,  that  it  would  seem 
best  to  make  the  distinction  in  every  instance  to  avoid  mis- 
apprehension. In  this  work  the  Avord  alimony  is  used  to 
denote  any  allowance  by  the  court  for  the  support  of  the 
wife  after  a  decree  of  divorce,  either  a  mensa  or  a  vinculo, 
and  such  is  the  meaning  of  the  Avord  as  commonly  used.^ 
The  power  to  grant  the  Avife  a  permanent  allowance  after 
an  absolute  divorce  is  not  derived  from  the  common  law 
and  is  not  derived  from  the  jurisdiction  to  grant  divorce. 
The  permanent  alimony  of  the  common  laAV  Avas  granted  to 
the  wife  upon  a  decree  of  separation  from  bed  and  board ;  so 
that  it  is  held  that  our  statutes  must  confer  upon  our  courts 
the  power  to  grant  the  wife  a  permanent  allowance  after 
the  dissolution  of  the  bonds  of  matrimony.'    The  statute 

1  Jji  re  Spencer,  83  Cal.  460^23  P.  clothing  and  a  habitation,  or  the 
595.    See  sec.  139,  Cal.  Civil  Code,  necessary  support  of  the  wife  after 

2  "Alimony  is  the  allowance  the  marriage  bond  has  been  sev- 
which  is  made  to  a  woman,  on  a  ered:  and  since  what  is  thus  neces- 
decree  of  divorce,  for  her  support  sary  has  more  or  less  of  relation  to 
out  of  the  estate  ot  her  husband,  the  condition,  habit  of  life,  and 
.  .  .  It  is  the  equivalent  of  the  social  position  of  the  individual,  it 
obligation  of  the  husband  to  fur-  is  graded  in  the  judgment  of  a 
nish  his  wife  a  suitable  support  —  court  of  equity  somewhat  by  re- 
corresponding  in  degree  with  his  gard  for  these  circumstances,  but 
pecuniary  ability  and  social  stand-  never  loses  its  distinctive  char- 
ing." Stillman  v.  Stillman,  99  111.  acter."  Eomaine  v.  Chauncey,  129 
196;  Adams  v.  Storey,  135  111.  448,  N.  Y.  566,  affirming  60  Hun,  477; 
■26  N.  E.  582.    In  New  York  ali-  s.  c,  15  N.  Y.  Sup.  198. 

mony  is  said  to  be  '"like  the  ali-  ^Erkenbrach  v.  Erkenbraoh,  96 

mentuvi    of    the   civil    law,   from  N.  Y.  456;  Romaine  v.  Chauncey, 

which  the  word  was  evidently  de-  129  N.  Y.  566. 
rived,    ...    a  provision  for  food, 


840  PEEMANENT   ALIMONY.  [§  901.. 

must  confer  the  power  upon  the  court  to  provide  some- 
allowance'for  the  wife,  who  is,  by  an  absolute  divorce,  placed 
in  a  situation  unknown  at  the  common  law.' 

§901.  Permanent  alimony  of  the  common  law. —  This 
form  of  alimony  requires  separate  treatment,  owing  to  the 
distinct  purpose  for  which  it  was  allowed  and  the  limited 
powers  of  the  courts  which  granted  it.  At  present  jurisdic- 
tion of  divorce  is  generally  conferred  on  courts  of  equity 
having  aU  the  powers  incident  to  equity  jurisdiction ;  and 
such  courts  may  exercise  such  powers,  in  a  settlement  after 
a  dissolution  of  the  marriage,  to  restore  to  the  wife  her 
separate  estate,  divide  personal  and  real  property,  decree  a 
gross  sum  of  money,  and  secure  the  same  by  making  the 
decree  a  lien  upon  the  husband's  real  estate.  But  the  eccle- 
siastical courts  did  not  possess  any  of  these  powers  for  ren- 
dering exact  justice  between  husband  and  wife.  The  most, 
rigorous  decree  which  it  ventured  to  give  in  the  most  ex- 
treme case  was  one-half  the  joint  income  of  the  parties,  even 
where  it  was  shown  that  the  entire  estate  came  through  the 
wife.  The  inadequacy  of  such  relief  is  illustrated  by  a  de- 
cision of  the  arches  court  of  Canterbury  in  1812.  "In  this 
instance,"  said  Sir  John  Nicholl,  "  the  husband  raised 
himself  to  independence  and  affluence  by  marrying  this 
young  woman ;  he  has  not  only  injured,  but  insulted,  her 
by  debauching  a  maid-servant  who  lived  at  the  adjoining 
house;  for  this  servant  he  has  taken  a  house,  and  for  her 
society  he  has  abandoned  the  society  of  his  wife;  he  has 
children  by  her,  and  receives  his  friends  in"  the  house,  and 
introduces  her  to  them  as  his  wife.  It  is  a  most  offensive 
case.  If  he  violates  the  marriage  contract,  it  might  be  equi- 
table, perhaps,  that  he  should  lose  the  whole  benefit  of  it, 
and  be  obliged  to  give  up  the  whole  of  the  wife's  property. 

1  This  principle  is  overlooked  in  manent  alimony,  see  Petitions  for 

Chaires   v.   Chaires,    10    Fla.   308,  divorce,  §  751. 

where  the  court  appears  to  have  Whether  applied  for  on  separate 

made  no  distinction  between  tern-  petition,  see  §  747. 

porary  and  permanent  alimony.  For  form  of  decree  or  order  for 

For  form  of  application  for  per-  permanent  alimony,  see  §  766. 


§  901.J 


PERMANENT   ALIMONY. 


841 


At  all  events  it  would  be  most  unjust  that  the  wife  should 
be  deprived  of  any  considerable  portion  of  the  property  she 
brought,  in  order  to  support  the  husband  in  pukic  scandal, 
and  to  enable  him  to  continue  his  adulterous  connection 
and  provide  for  the  issue  which  are  the  fruits  of  it."  ^  The 
limitations  which  surrounded  the  ecclesiastical  courts  in 
their  care  of  souls,  the  crude  and  unjust  laws  relating  to 
married  women  and  their  property  rights,  as  well  as  the 
fact  that  only  a  partial  divorce  was  granted,  render  the  de- 
cisions of  such  courts  of  very  little  value  in  determining  the 
amount  of  permanent  allowance  to  the  wife  where  the  mar- 
riage has  been  dissolved.  But  a  review  of  the  decisions 
may  be  made  here  in  justification  of  what  has  been  said.^ 


1  Cooke  V.  Cooke,  3  Phillim.  40. 
The  court  then  affirmed  a  decree 
allowing  the  wife  £450  per  an- 
num —  about .  one-half  of  the  hus- 
band's income  —  leaving  the  re- 
mainder to  him  to  be  enjoyed  with 
his  concubine  and  her  children. 
This  case  is  often  cited  as  a  prece- 
dent in  determining  the  amount 
of  alimony;  but  for  obvious  rea- 
sons it  has  no  application  in  mod- 
ern practice.  According  to  modern 
views  of  justice,  the  circumstances 
of  this  case  would  require  that  the 
innocent  party  should  not  suffer 
by  a  marriage  the  obligations  of 
which  the  other  has  broken;  and 
our  courts  would  dissolve  the  mar- 
riage, restore  the  property  to  the 
wife,  and  leave  the  husband  to 
make  the  best  of  the  situation  by 
marrying  the  concubine  and  car- 
ing for  his  children.  It  is  submit- 
ted, also,  that  a  dissolution  of  the 
marriage  in  such  a  case  is  in  ac- 
cordance wi*h  sound  public  policy. 

2  Where  the  husband's  income 
was  between  two  and  three  thou- 
sand pounds,  and  the  wife's  prop- 


erty at  marriage  was  only  6,000?., 
the  court  allowed  her  2001.  per  an- 
num, payable  quarterly,  and  the 
sum  of  400?.  for  two  years  arrears 
of  alimony,  she  having  received 
no  alimony  during  suit.  Robinson 
V.  Robinson,  2  Lee,  593  (1738). 

The  sum  of  160Z.  per  annum  was 
allowed  to  the  wife,  that  being 
about  two-flfths  of  the  husband's 
income.  No  reduction  was  made 
in  favor  of  the  husband  because 
he  paid  200?.  to  the  support  of  a 
daughter.  Street  v.  Street,  3  Ad. 
Ec.  1. 

Where  the  joint  incomes  amount- 
ed to  5,500?.  per  annum  and  the  hus- 
band had  six  children  to  maintain 
and  educate,  the  wife  was  allowed 
2,000?.  per  annum,  payable  quar- 
terly, although  the  greater  part  of 
the  property  came  from  the  wife. 
Otway  V.  Otway,  3  Phillim.  109. 

Where  the  property  was  settled 
upon  the  wife  and  she  was  induced, 
by  the  hope  of  better  treatment,  to 
give  it  up  to  her  husband,  she  was 
allowed  1,000?.  per  annum,  one-half 
the  joint  income,  for  herself  and 


€42  PEKMANENT   ALIMONY.  [§'902. 

§  902.  Permanent  alimony  on  decree  of  separation. — 

The  allowance  made  on  a  decree  of  separation  is  in  many- 
respects  the  same  as  the  permanent  alimony  awarded  by  the 
ecclesiastical  courts  on  a  decree  a  mensa  et  tkoro.  The  de- 
crees are  almost  identical,  and  the  subsequent  status  of  the 
parties  is  the  same.  The  Avife  does  not  lose  her  dower  in- 
terest by  either  decree,  and  the  husband  retains  the  right  of 
curtesy.  She  is  still  entitled  to  her  distributive  share  in  his 
personal  property,  should  he  die  intestate.  The  parties  are 
still  husband  and  Avife.  The  circumstances  of  the  parties, 
and  their  legal  rights,  being  the  same  as  upon  a  decree  a 
mensa  et  thoro,  it  follows  that  the  principles  of  the  perma- 
nent alimony  of  the  ecclesiastical  law  should  govern  the 
award  of  permanent  alimony  after  a  decree  of  separation. 
In  the  absence  of  any  statutory  provision  to  the  contrary, 
the  allowance  is  a  suitable  provision  for  the  wife  from  the 
income  of  her  husband,  and  not  a  portion  of  his  estate  or  a 
gross  sum.'  It  is  not  a  division  or  restoration  of  property.^ 
The  amount  is  modified  by  the  wife's  demeanor  and  the  ex- 
tent of  the  husband's  delictum,  the  respective  needs  and  in- 
comes of  the  parties,  and  other  considerations  which  may 
influence  judicial  discretion.'  An  allowance  may  be  made 
for  the  support  of  the  wife  on  a  decree  nisi.^    As  such  allow- 

clxild.    Smith  v.  Smith,  2  Phillim.  2  Doe  v.  Doe,  52  Hun,  405;  S.  C, 

235.  5  N.  Y.  Supp.  514.    But  see  Holmes 

The  sum  of  lOOZ.  was  allowed  the  v.  Holmes,  4  Barb.  295. 

wife  where  she  had  a  separate  in-  3  gge    on   these  points,  Burr  v. 

come  of  350Z.,  and  the  husband's  Burr,    10    Paige,    20;    Sleeper   v. 

income  was  about  1,015^.,   out  of  Sleeper,  65  Hun,  454,  20  N.  Y.  Supp. 

which  he    supported    seven    chil-  339;  Williams  v.  Williams,  6  N.  Y. 

dren.    Eees  v.  Rees,  3  Phillim.  387.  Supp.  645;   Erkenbrach  v.  Erken- 

See,  also,  amount  of  permanent  brach,  96  N.  Y.  456;  CuUen  v.  Cul- 

alimony  granted  in  Blaguiere  v.  len,  55  J.  &  S.  346;  Emerson  u  Em- 

Blaguiere,  3  Phillim.  258;  Durant  erson,  68  Hun,  37;  s.  C,  22  N.  Y. 

V.  Durant,   1  Hag.  538;  Kempe  v.  Supp.  684. 

Kempe,  1  Hag.  532;  Myttonr.  Myt-  ^Waterhouse  v.  Waterhouse,  6 

ton,  3  Hag.  Ec.  657.  Eep.  (1894),  630. 

1  Burr  V.  Burr,  10  Paige,  20,  7  Hill, 
207. 


§  902.]  PERMANENT  ALIMONT.  843 

ance  is  not  permanent,  and  as  the  marriage  is  not  dissolved, 
this  form  of  alimony  resembles  the  common-la-\v  alimony  and 
is  governed  by  the  same  principles.  Such  decree  is  subject 
to  revision  at  any  time  during  the  separation,  and  the  amount 
may  be  increased  or  diminished  according  to  the  changed 
circumstances  of  the  ])arties.^  The  object  of  such  revision 
is  to  preserve  the  equality  of  their  respective  incomes.^  If 
after  the  decree  of  separation  the  wife  acquires  an  adequate 
income  from  other  sources,  the  decree  for  alimony  may  be 
vacated  on  the  application  of  the  husband.'  In  general  it 
may  be  said  that  this  kind  of  alimony  terminates  whenever 
the  necessity  for  it  ceases,  as  when  the  parties  become  rec- 
onciled and  renew  cohabitation.^  A  decree  of  absolute  di- 
vorce, if  rendered  after  a  decree  a  mensa,  terminates  the 
permanent  alimony  allowed  on  the  latter  decree.*  The  per- 
manent alimony  on  a  decree  of  separation  terminates  on  the 
death  of  either  party.^  On  the  death  of  the  wife  the  hus- 
band is  under  no  legal  obligation  to  her  heirs,  as  the  decree 
was  for  maintenance  of  the  wife,  and  was  not  a  vested  right. 
On  the  death  of  the  husband  the  wife  comes  into  possession 
of  her  distributive  share  as  a  widow,  and  there  is  no  neces- 
sity for  continuing  the  alimony.'  This  form  of  alimony  is 
for  the  support  of  the  wife  during  the  separation.  It  must 
be  distinguished  from  the  permanent  allowance  to  the  wife 
on  a  dissolution  of  the  marriage,  as  such  allowance  is  more 
in  the  nature  of  a  final  settlement  of  partnership  accounts. 

iHalsted  v.  Halsted,  5  Duer,  659;  5  Blake  v.  Cooper,  7  S.  &  E.  500; 

Strauss  v.  Strauss,  14  K.  Y.  Supp.  Smith  v.  Smith,  3  S.  &  R.  348.   But 

€71;  Simonds  v.  Simonds,  10  N.  Y.  see  Bremner  v.  Bremner,  48  Ind. 

Supp.  606;  Stahl  v.  Stahl,  13  N.  Y.  262. 

Supp.  855;  Kerr  v.  Kerr,  9  Daly,  '  Dewees  v.  Dewees,  55  Miss.  315. 

517.  '  Lockridge  v.  Lockridge,  3  Dana 

2Mildeberger  v.  Mildeberger,  13  (Ky.),  28;  Storey  v.  Storey,  125  111. 

Daly,  195.  608,  18  X.  E.  339;  Clark  v.  Clark,  6 

3  Holmes  v.  Holmes,  4  Barb.  295;  Watts  &  S.  85;  Stones  v.  Cooke,  8 

"Whispell  V.  Whispell,  4  Barb.  317.  Sim.  321;  Shaftoe  v.  Shaftoe,  7  Ves. 

^Nicol  V.  Nicol,  30  Ch.  D.  143,  31  171;  Dawson  v.  Dawson,  7  Ves.  173. 
Ch.  Div.  524 


S-ii  PERMANENT  ALIMONY.  [§  903. 

§  903.  Distinction  between  common-law  and  statutory 
alimony. —  Mr.  Bishop  claims  that  the  rules  governing  per- 
manent alimony  at  common  law  are  applicable  to  the  stat- 
utory alimony ;  and  in  the  chapter  on  "  Permanent  alimony  " 
has  drawn  largely  from  the  ecclesiastical  reports,  blending- 
and  confusing  the  alimony  of  the  common  law,  and  the 
statutory  allowance  made  by  our  courts  on  dissolving  the 
marriage.  "  We  have  American  authority,"  said  he,  "  that 
a  judicial  discretion  conferred  by  statute  to  grant  alimony 
on  a  decree  dissolving  the  marriage  should  be  exercised  by 
the  court  on  the  same  principles  as  the  like  discretion  where 
the  divorce  is  from  bed  and  board."  ^  The  English  courts,, 
since  the  divorce  act,  jnay  grant  an  absolute  divorce ;  and 
where  such  divorce  was  rendered,  the  divorce  court  was  of 
the  opinion  that  the  wife  should  receive  the  same  amount 
which  the  ecclesiastical  courts  would  have  granted.  "If  a 
man,  before  the  divorce  act,  treated  his  wife  Avith  cruelty 
and  was  also  guilty  of  adultery,  she  could  only  obtain  a  di- 
vorce a  mensa  et  thorn-  and  an  allowance  called  permanent 
alimony  was  made  her,  which  was  generally  calculated  at 
the  rate  of  one-third  of  her  husband's  income.  Since  the 
divorce  act,  the  same  conduct  on  the  part  of  the  husband 
entitles  the  wife  to  a  dissolution  of  her  marriage ;  but  it  is 
hard  to  say  that  she  was  intended  by  the  legislature  to  pur- 
chase that  remedy  by  a  surrender  to  any  extent  of  the  pro- 
vision to  which  she  would  otherwise  have  been  entitled. 
"The  needs  of  the  wife  and  the  wrong  of  the  husband  are  the 
same  in  both  cases.  In  both  cases  the  husband  has  of  his 
own  wrong  and  wickedness  thrust  forth  his  wife  from  the 
position  of  participator  in  his  station  and  means.  Obliged 
in  both  cases  to  withdraw  from  his  home,  she  is,  without 
any  fault  of  her  own,  deprived  of  her  fair  and  reasonable 
share  of  such  necessaries  and  comforts  as  lay  at  his  com- 
mand. "Why  should  not  the  husband's  purse  be  called  upon 
to  meet  both  cases  alike  \ "  ^    This  case  is  said  by  Mr.  Bishop 

1  Citing  Harris  v.  Harris,  31  Grat.        2  Sidney  v.  Sidney,  4  Swab.  &  T. 
13;   Blake  v.  Blake,  68  Wis.  303.  178. 


§  903.]  PEKMANENT   ALIMONY.  845 

to. have  settled  the  doctrine  in  England  as  to  alimony  on 
dissolution.^ 

But  it  is  submitted  that  decisions  of  the  ecclesiastical  courts 
are  entitled  to  small  value  as  precedents  for  the  following 
reasons :  Equity  requires  that  where  the  wife  obtains  di- 
vorce she  shaU  not  suffer  pecuniarily  on  account  of  the  disso- 
lution of  the  marriage  for  the  husband's  ill  conduct.  To 
place  her  in  statu  quo  requires  the  court  to  consider  a  con- 
dition of  facts  and  property  rights  that  could  not  exist  at 
common  law,  and  cannot  be  adjusted  by  common-law  prin- 
ciples. The  wife  has  now  both  separate  property  and  sepa- 
rate income.  Her  right  of  dower  upon  divorce  is  declared 
by  statute  in  some  states,  and  in  others  the  court  must  allow 
her  a  sum  to  compensate  the  loss  of  dower.  The  power  of 
the  court  to  restore  in  fee  the  property  of  j;he  wife,  and  the 
ability  of  the  wife  to  receive  and  control  it  in  her  own  right, 
are  also  novel  to  the  common  law.  Common-law  alimony 
was  granted  to  the  wife  for  her  separate  maintenance  until 
the  parties  become  reconciled,  while  the  statutory  allowance 
is  in  fact  a  final  distribution  of  the  property  in  order  that 
the  parties  may  be  forever  independent  of  each  other.  The 
principles  of  this  final  distribution  are  in  some  resp^ts  dif- 
ferent from  the  principles  which  govern  the  allowance  of  the 
common-law  alimony.  The  ecclesiastical  courts  ascertained 
the  husband's  income  and  awarded  her  a  portion  of  it  as 
maintenance.  The  modern  courts  ascertain  the  value  of  the 
husband's  property  and  give  the  wife  an  equitable  portion 
of  it,  or  a  gross  sum  in  lieu  of  all  her  rights,  or  a  sum  payable 
in  instalments,  which  is  granted  in  lieu  of  maintenance  and 
her  right  of  dower.^ 

1  Approved  in  Campbell  v.  Camp-  granting  the  allowance.  The  rea- 
bell,  90  Ga.  687.  sons  assigned  were  as  follows:  "In 

2  In  Calame  v.  Calame,  S4  N.  J.  the  ecclesiastical  law,  as  it  existed 
Eq.  440,  the  court  refused  to  follow  in  England  prior  to  the  statute  of 
the  ecclesiastical  practice  in  grant-  1858,  no  divorces  from  the  matri- 
ing  alimony,  either  as  to  amount  monial  bond  were  decreed  by  the 
or  the  terms  of  the  decree,  as  well  courts.  All  divorces  so  decreed 
as  the   object  to  be  attained  in  were  only  from  bed  and  board,  and 


846  PERMANENT   ALIMONY.  [§  903. 

The  true  doctrine  of  the  laAT  of  permanent  allowance  after 
a  total  divorce  is  that  such  decree  is  a  final  adjudication  of 
the  property  rights  of  both  parties.  This  may  be  a  new 
doctrine  to  those  who  hare  considered  the  allowance  to  be 
the  same  as  the  permanent  alimony  of  the  common  law. 
But  this  is  clearly  the  doctrine  of  all  modern  authorities 
which  distinguish  between  the  two  kinds  of  alimony.  The 
court  in  making  the  allowance  must  estimate  the  property 
of  both  parties,  and  adjudicate  all  claims  which  one  party 
has  against  the  other.  The  court,  sitting  as  a  court  of 
etpity,  and  having  the  parties  before  it,  Avill  not  render  a 
decree  disposing  of  part  of  the  questions  before  it,  leaving 
the  parties  to  resort  to  further  litigation;  but  under  its 
equity  jurisdiction  will  proceed  to  decide  all  the  issues  which 
arise  in  the  case,  and  will  award  complete  relief.^  The  de- 
cree for  alimony  is  in  many  respects  like  the  decree  rendered 
in  the  final  settlement  of  partnership  accounts.  Both  are 
presumed  to  adjudicate  all  matters  which  might  have  been 
litigated.  The  best-considered  authorities  clearly  concur  in 
holding  that  the  permanent  allowance  after  total  divorce  is 
a  final  determination  of  all  property  rights  growing  out  of 
the  marriage  relation,  or  otherwise  existing  between  the 
parties  at  the  time  of  divorce.^    It  is  this  consideration  that 

whatever  provision  was  made  by  under  our  law,  is  unqualified  and 

the  courts  for  the  wife  while  the  absolute,  and  the  wife  is  no  longer 

separation    continued   was    made  the  wife,  and  no  longer  holds  her 

with  reference  to  a  probable  or  pos-  dower  or  other  interest  in  the  prop- 

sible  reconciliation,  and  was  not  erty  of  the  husband,  to  be  asserted 

meant  to    discourage    it.     Hence  in  his  life  or  at  his  death,  the  nat- 

alimony,  as  a  general  term,  if  not  ure  and  principles  of  the  provision 

restricted  in   meaning  to    stated  to  be  made  for  her  rights  by  the 

allotments  of  income,  was  yet  a  courts  are  essentially  and  radically 

pi'ovision  which,  in  point  of  fact,  different." 

was  made  in  that  class  of  cases  by        i  Pomeroy's  Equity  Jur.,  §  331. 
payments  from  time  to  time,  and        2  Parker  v.  Albee,  86  la.  46,  53  N. 

not  at  once  and  in  full  of  all  future  W.  533 ;  Patton  v.  Laughridge,  49  la. 

demands.   It  could  not  well  be,  and  318;  Tatro  v.  Tatro,   18  Neb.  395, 

certainly  did  not  need  to  be,  the  85  N.  W.  571 ;  Behrley  v.  Behrley,  93 

latter.    But  where  the  divorce,  as  Ind.  255,  and  cases  cited;  Mucken- 


§  90-i.J  PERMANENT   ALIMONY.  84T 

controls  the  amount  of  the  permanent  allowance  in  cases 
where  both  parties  have  property  rights.  As  a  decree  in 
final  settlement  it  makes  the  wife  a  creditor  of  the  husband^ 
tind  it  is  not  therefore  subject  to  revision  and  does  not  ter- 
minate on  the  death  of  either  party.^ 

§  904.  Liability  of  wife  to  pay  the  husband  alimony. — 
Ko  instance  could  occur  at  common  law  in  which  the  court 
would  decree  alimony  to  the  husband;  and,  in  the  absence 
of  any  statute  creating  such  liability,  the  wife  would  not  be- 
liable  to  an  action  for  alimony,  although  she  is  enabled  by 
statute  to  hold  and  transfer  real  and  personal  property  in 
hCr  own  name  and  rig'ht.-  But  under  modern  legislation 
the  wife  may  have  all  the  property  transferred  to  her  by  the 
husband,  and  it  would  be  inequitable  that,  when  a  divorce 
is  granted  for  her  fault,  she  should  retain  the  property.  To 
do  exact  justice  in  the  premises,  the  court  may  make  such 
decree  respecting  an  allowance  to  the  husband  as  will  place 
him  in  as  good  a  situation  as  if  the  marriage  was  not  dis- 
solved. In  some  states  it  is  provided  that  alimony  may  be 
decreed  to  either  party .^  And  in  proper  circumstances  ali- 
mony may  be  decreed  to  the  husband  although  he  is  the 
guUty  party.*  "Where  a  division  of  the  property  is  made  in 
the  decree,  it  may  be  convenient  to  allow  the  wife  to  retain 
the  real  estate,  and  to  pay  the  husband  in  easy  instalments 
the  value  of  his  interest  in  the  property.^  The  English 
courts  are  authorized  by  statute  to  exercise  a  very  liberal 
discretion  in  adjusting  the  property  of  both  parties  when 
the  marriage  is  dissolved,  and  may  increase  the  husband's 

burg  V.  Holler,  29  Ind.  139;  Thomp-  2  Somers  v.  Somers,  39  Kan.  133, 

son  V.  Thompson,  138  Ind.  288,  31  17  P.  841. 

N.  E.  529;  Gray  i'.  Thomas,  83  Tex.  3  Garnett  v.  Garnett,  114  Mass. 

246,  18  S.  W.  721;  Johnson  u  John-  347;  Abel  v.  Abel  (la.),  56  N.  W. 

son,  65  How.  Pr.  517;  Meldrum  v.  443. 

Meldnim,  15  Colo.  478,  34  P.  1088;  *  Barnes  v.  Barnes,  59  la.  456. 

Roe  V.  Roe,  53  Kan.  724,  35  P.  808.  ^  Snodgrass  v.  Snodgrass,  40  Kan. 

1  §§  933,  933,  933a,  934,  935.    See  494. 
also  on  this  point.  Smith  v.  Smith, 
45  Ala.  364,  quoted  in  §  933a. 


S48  PERMANENT   ALIMONY.  [§  905. 

allowance  under  a  marriage  settlement  or  grant  him  an 
allowance  from  the  wife's  income.' 

Under  a  statute  which  provides  that  "  the  court,  on  de- 
creeing a  divorce,  shall  make  provision  for  the  guardian- 
ship, custody  and  support  of  the  minor  children  of  such 
marriage,"  a  decree  may  be  entered  providing  that  the  wife 
shall  pay  to  the  husband  one-third  of  the  rents  and  profits 
for  the  support  and  education  of  the  children.^  In  Oregon 
the  husband  is  entitled  to  one-third  of  the  Avife's  real  prop- 
erty after  a  divorce  for  her  fault,  under  a  statute  allowing 
that  proportion  to  the  party  obtaining  the  decree.^ 

§905.  When  alimony  is  refused. —  Alimony  is  refused 
whenever  from  the  circumstances  of  the  case  there  is  no 
reason  or  necessity  for  allowing  it.  Where  the  husband  has 
no  income  or  property,  and  is  unable  to  wprk,  no  allowance 
will  be  made.  Nor  is  the  wife  entitled  to  anything  where 
the  husband's  resources  are  all  required  to  support  the  chil- 
dren. 'No  necessity  appears  where  the  wife  has  sufficient 
separate  property  of  her  own  to  support  her  as  if  the  mar- 
riage had  continued,  or  where  sufficient  property  has  been 
conveyed  to  her  by  the  husband.*  A  valid  marriage  settle- 
ment or  ante-nuptial  contract  may  obviate  the  necessity  for 
alimony  where  the  terms  are  fair  and  the  provision  for  the 
wife  is  adequate.^  These  contracts  are  perhaps  valid  so  far 
as  they  aifect  the  wife's  property  rights,  but  do  not  relieve 

1  Swift  V.  Swift,  15  p.  D.  118;  false  pretenses.    Munroe  v.  Mun- 

Benyon  v.  Benyon,  1  P.   D.   447;  roe,  20  Or.  579,  26  P.  838. 

March  v.  March,  1  P.  &  M.  440.  *  Harrison  v.  Harrison,  49  Mich. 

2Cheeveru  Wilson,  76  U.  S.  108.  240;  Eose  v.  Rose,  11  Paige,  166; 

3  Eees  w  Eees,  7  Or.  48.    It  is  dif-  Stevens  v.  Stevens,  49  Mich.  504; 

ficult  to  see  the  object  of  depriving  Stultz  v.  Stultz,  107  Ind.  400. 

the  court  of  the  power  to  make  an  *  Galusha  v.  Galusha,  116  N.  Y. 

equitable  division  of  the  property  635,  reversing  43  Hun,  181.     See 

in  such  cases.    Under  such  statute  ante-nuptial  contract  held  a  bar. 

the  husband  may  recover  money  Corey  v.  Corey,  81  Ind.  469.    See 

advanced  to  the  wife  before  mar-  contra,  Wilson  v.  'Wilson,  40  la. 

riage,  where  it  is  shown  that  the  230;  Miller  v.  Miller,  1  N.  J.  Eq. 

marriage  and  a  release  of  all  claim  386. 
for  the  money  was  obtained  by 


§  905a.]  PERMANENT   ALIMONT.  849 

the  husband  from  the  obligation  of  support.^  If  not  suifi- 
cient  an  additional  amount  may  be  awarded.^  And  the  court 
may  in  its  discretion  consider  the  nature  of  the  husband's 
offense,  and  award  something  in  addition  as  a  compensation 
for  her  damage.'  Agreements  to  pay  the  wife  a  certain 
sum  during  separation  will  not  constitute  a  bar  to  the  allow- 
ance; but  if  the  sum  is  adequate  it  may  be  ratified  by  the 
court.  It  wiU  not  be  ratified  if  the  rights  of  the  wife  are 
not  fuUy  protected  and  the  payments  properly  secured.* 
Alimony  must  be  refused  when  a  divorce  is  denied,  unless 
there  is  some  statute  to  the  contrary.  If  the  husband  ob- 
tains a  divorce  from  his  wife  he  is  not  liable  for  her  con- 
tinued support  in  the  form  of  alimony.  In  some  circum- 
stances, however,  the  court  will  make  some  allowance  for  a 
guilty  wife.* 

§  905a.  AunuIIment  of  marriage. —  'So  permanent  ali- 
mony can  be  granted  on  a  decree  of  nullity,  as  such  decree 
is  a  finding  that  no  vaM  marriage  ever  existed.^  Where  j 
the  statute  does  not  confer  the  power  to  award  permanent 
aMmony  on  a  decree  of  nullity,  the  court  has  the  power  as 
a  court  of  equity  to  restore  to  the  parties  the  property 

1  Logan  V.  Logan,  3  B.  Mon.  14^  6  Fuller  v.  Fuller,  33  Kan.  583; 
149.  Wilhite  v.  Wilhite,  41  Kan.  154. 

2  Benyon  v.  Benyon,  1  P.  D.  447.        Stewart  v.  Vandervort,  34  W.  Va. 

3  Steams  v.  Steams  (Vt.),  28  A.  524.  This  was  an  action  to  annul 
•875.  After  a  decree  of  divorce  and  a  marriage  because  the  wife  had  a 
ahraony  has  been  rendered,  and-  former  husband  living.  The  wife 
the  court  has  reserved  the  power  applied  for  permanent  alimony  and 
to  modify  the  decree,  the  wife  proved  that  she  had  married  in 
may  obtain  an  order  annulling  good  faith,  having  good  reason  to 
the  agreement  and  an  allowance  believe  that  her  husband  was  dead ; 
as  if  such  agreement  had  not  ex-  that  the  parties  had  lived  together 
isted.  Amounts  paid  by  the  hus-  for  twenty  years  and  had  acquired 
band  on  said  agreement  are  for  her  property  by  their  joint  labor  and 
support  and  need  not  be  restored  economy.  It  was  held  that  in  the 
by  the  wife.  Galusha  v.  Galusha,  absence  of  a  statute  in  force  when 
188  N.  T.  373.  the  void  marriage  was  contracted 

*  Evans  v.  Evans  (Ky.),  20  S.  W.  the  court  had  no  power  to  award 
i605.  permanent  alimony. 

6  §907. 

54 


850  PERMANENT   ALIMONY.  [§  906!- 

owned  by  each  prior  to  the  marriage.'  In  some  states  the 
statutes  provide  that  alimony  may  be  granted  as  in  other 
cases.^  The  object  of  these  statutes  is  not  to  permit  the' 
court  to  grant  the  regular  permanent  alimony  for  the  sup- 
port of  the  wife  and  in  compensation  for  her  right  of  dower^, 
but  some  just  and  reasonable  amount  in  restitution  of  the- 
property  received  by  the  husband  by  reason  of  the  marriage- 
and  compensation  for  the  services  of  the  wife. 

§906.  Alimony  where  a  divorce  is  denied. —  It  seems 
that  where  neither  party  is  guilty  of  a  cause  for  divorce, 
and  a  decree  is  denied,  the  court  cannot  enter  a  decree  for 
alimony.  If  the  husband  has  not  been  guilty  of  a  causefor 
divorce  he  is  not  liable  for  the  separate  maintenance  of  the 
wife.  It  is  her  duty  to  return  to  his  house.^  If  she  is  not 
guilty  of  conduct  which  is  a  cause  for  divorce  it  is  his  duty 
to  receive  her.  Where  it  is  provided  that,  where  the  hus- 
band is  guilty  of  certain  causes  for  divorce,  the  court  may 
enter  a  decree  of  separation  or  "  such  other  decree  in  the 

1  A.  V.  M.,  10  p.  B.  178.  See  other  a  judgment  annulling  a  marriage^ 
remedies,  such  as  recovery  of  dam-  the  court  may  make  provision  for 
ages,  rents  and  profits,  etc.,  in  restoring  to  the  wife  the  whole  or 
§  1033.  A  court  of  equity  will  en-  any  such  part  as  it  shall  deem  just, 
join  the  enforcement  of  a  decree  and  reasonable,  of  any  estate  which 
for  alimony  where  it  is  shown  that  the  husband  may  have  received 
the  marriage  is  void.  Scurlock  v.  from  her,  or  the  value  thereof,  and 
Scurlock,  93  Tenn.  639,  33  S.  W.  858.  may  compel  him  to  disclose  what 

2  Van  Valley  v.  Van  Valley,  19  estate  he  shall  have  received  and 
O.  St.  588.  Section  8437,  MoClain's  when  and  how  the  same  has  been 
Annotated  Code  of  Iowa,  provides  disposed  of."  Wheeler  v.  Wheeler^ 
that,  "  In  case  either  party  entered  76  Wis.  631.  Under  this  statute 
into  the  contract  of  marriage  in  the  court  may  compel  the  hus- 
good  faith,  supposing  the  other  to  band  to  return  to  the  wife  the- 
be  capable  of  contracting,  and  the  amount  he  received  from  her  with 
marriage  is  declared  a  nullity,  interest  thereon;  and  where  the 
such  fact  shall  be  entered  in  the  husband  and  wife  have  been  part- 
decree,  and  the  court  may  decree  ners,  the  husband  is  liable  to  the 
such  innocent  party  compensation  wife  for  one-half  of  the  net  profits' 
as  in  cases  of  divorce."  Barber  ■«.  of  the  business  -with  interest. 
Barber,  74  la.  301;  Daniels  v.  Mor-  Wheeler  v.  Wheeler,  79  Wis.  303. 
ris,  54  la.  369.  The  Wisconsin  stat-  3McCahill  v.  McCahill,  71  Hun,, 
ute  pro-vddes  that,  "  Upon  rendering  334,  35  N.  Y.  Supp.  331. 


§  907.].  PEK3VLA.NEXT   ALIMONY.  851 

premises  as  tlie  nature  and  circumstances  of  the  case  re- 
quire," the  court  may  refuse  a  decree  of  divorce  and  allow 
alimony.^  There  are  statutes  in  several  states  providing  that 
although  a  divorce  is  refused  the  court  may  make  such  order 
concerning  the  support  and  maintenance  of  the  wife  and  of 
her  children  as  may  be  necessary.  The  circumstances  under 
which  such  a  decree  will  be  made  must  be  of  the  same  nature 
as  would  justify  a  decree  of  divorce.^  Where  the  parties  are 
,  in  mutual  fault  as  to  the  conduct  complained  of,  the  courts 
will  generally  refuse  alimony  or  a  division  of  the  property 
unless  the  statute  permits  such  relief.' 

§  907.  When  a  guilty  wife  may  receive  alimony. —  Ac- 
cording to  the  ecclesiastical  practice  the  guilty  wife  received 
no  alimony,  although  there  may  have  been  some  mitigating 
circumstances  in  her  favor,  and  she  might  have  brought  a 
considerable  dowry  to  her  husband.*  Her  offense  relieved 
her  husband  from  all  duty  of  support.  But  the  severity  of 
this  rule  soon  became  manifest,  and  it  was  customary  tO' 
make  some  provision  for  the  wife  when  a  divorce  was 
granted  by  parliament  to  the  husband.*  The  divorce  court 
now  has  discretionary  power  to  grant  her  alimony,  but  will 
ordinarily  refuse  to  do  so.*  In  New  York,  Missouri  and 
California  the  court  is  prevented  from  exercising  any  dis- 
cretion in  the  matter  by  the  provision  of  the  statute  that 
alimony  may  be  allowed  where  a  divorce  is  granted  for  the 
offense  of  the  husband.'' 

1  Nicely  u  Nicely,  40  Tenn.  184.  3  Van  Brunt  v.  Van  Brunt,   52 

2Rucknian  v.  Ruckman,  58  How.  Kan.  380,  34  P.  1117. 

Pr.  278 ;  Douglas  v.  Douglas,  5  Hun,  *  3  Blackstone's  Com.  94 ;  Perry  i;. 

140;  P.  u  P.,  24  How.  Pr,  197:  Davis  Perry,  2  Barb.   Ch.   311;  Allen  v. 

V.  Davis,  1  Hun,  444;  Atwater  v.  Allen,   43  Conn.   419;    Palmer    v. 

Atwater,  53  Barb.  631;  Chaffee  v.  Palmer,  1  Paige,  276. 

Chaffee,  15  Mich.  184;  Tilton  v.  Til-  5  3  Law  Rep.  219. 

ton  (Ky.),  29  S.  W.  290.    See,  also,  eRatclifl  v.  Ratcliff,  1  Swab.  & 

sec.  136  of  California  Code,  as  in-  T.  467. 

terpreted  in  Hagle  u  Hagle,  68  Cal.  "Waring  v.  Waring,  100  N.  T. 

588;  Hagle  v.  Hagle,  74  Cal.  608;  570;  Mclntire  v.  Mclntire,  80  Mo_ 

Peyre  v.  Peyre,  79  Cal.  336.  470;    Everett  v.   Everett,  53   Cal, 

883;  Doyle  v.  Doyle,  36  Mo.  545 


852  PEKKANENT   ALIMONY.  [§  907. 

The  Kentucky  statute  provides  that,  "  if  the  wife  have  not 
sufficient  estate  of  her  own,  she  may,  on  a  divorce  obtained 
by  her,  have  such  allowance  out  of  that  of  her  husband  as 
shall  be  deemed  equitable."  A  literal  construction  of  this 
statute  would  be  that,  because  the  divorce  was  not  obtained 
by  the  wife  in  a  proceeding  by  her  for  that  purpose,  she  is 
not  entitled  to  alimony.  But  it  is  held  where  a  divorce  is 
granted  to  the  husband  on  account  of  separation  for  five 
years,  and- he  is  in  fault,  having  left  the  wife,  the  decree  of 
divorce  will  not  be  disturbed,  but  the  wife  will  be  allowed 
alimony.!  The  statute  is  construed  to  embrace  any  case 
where  the  wife  is  entitled  to  obtain  a  divorce,  though  the 
husband  is  seeking  it;^  or  where  she  is  guilty  of  desertion, 
but  is  otherwise  innocent  or  not  greatly  at.fault.^ 

In  most  of  the  states  the  provisions  of  the  statute  relating 
to  alimony  confer  an  unlimited  discretion  upon  the  court  to 
allow  alimony  according  to  the  conduct  of  the  parties  and  the 
circumstances  of  the  case.*  The  common-law  doctrine  was 
held  to  be  modified  by  the  general  terms  of  a  statute  Avhich 
provided  as  follows :  "  When  a  divorce  shall  be  decreed,  the 
court  may  make  such  order  touching  the  alimony  and  main- 
tenance of  the  wife,  the  care,  custody  and  support  of  the 
children,  or  any  of  them,  as  from  the  circumstances  of  the 
parties  and  the  nature  of  the  case  shall  be  fit,  reasonable 

\  Laoey  v.  Lacey  (Ky.),  23  S.  W.  111.  74;  Eeavis  v.  Eeavis,  1  Scam. 

673.  (111.)  343;  Fiveooat  v.  Fivecoat,  82 

2  Davis  V.  Davis,  86  Ky.  32,  4  S.  la.  198;  Zuver  v.  Zuver,  36  la.  190 

W.  832.  Pence    v.  Pence,   6  B.   Mon.   496 

'  Hoover  v.  Hoover  (Ky.),  21 S.  W.  Gains  v.  Gains  (Ky.),  19  S.  W.  929 

234.  Brandon  v.  Brandon,  14  Kan.  343 

*  See  statutory  provisions  in  the  Graves  u   Graves,"  108  Mass.  314 

following  cases:  Lovett  v.  Lovett,  Sheaf e  v.  Sheaf e, 4  Fost.  (N.  H.)564: 

11  Ala.  763;   Luthe  v.   Luthe,   13  Sheaf e  v.  Laighton,  36  N.  H.  240: 

Colo.  431;  Chandler  u  Chandler,  13  Janvrin  v.  Janvrin,  59  N.  H.  23 

Ind.  492;  Conner  v.  Conner,  29  Ind.  Dailey  v.  Dailey,  Wright,  514;  Ald- 

48 ;  Hedriok  u  Hedrick,  38  Ind.  291 ;  rich  v.  Aldrioh,  21  Ontario  Sup.  447 ; 

Cox  V.  Cox,  25  Ind.  303;  Coon  v.  Buckminster    v.  Buckminster,  38 

Coon,  26  Ind.  189;  Hyatt  v.  Hyatt,  Vt.  248.    In  Nebraska  and  Wiscon- 

33  Ind.  309;  Deenis  v.  Deenis,  79  sin    alimony   may  be    granted   a 


§  907.]  PERMANENT   ALIMONY.  853 

and  just." '  The  reasons  why  alimony  is  sometimes  allowed 
to  a  guilty  wife  are:  To  provide  for  the  support  of  children, 
if  the  custody  of  any  are  awarded  her ;  to  permit  the  court 
to  make  a  partial  restoration  of  the  property  which  she 
brought  to  her  husband  at  marriage,  or  any  subsequent  con- 
tributions she  may  have  made;  to  provide  for  her  to  some 
extent  so  that  she  will  not  become  a  public  charge  or  be 
forced  into  prostitution,  and  to  permit  the  court  to  make 
some  allowance  where  there  are  some  mitigating  circum- 
stances, in  order  that  justice  may  be  tempered  with  mercy. 
But  it  is  error  to  allow  alimony  to  a  wife  where  there  are 
no  mitigating  circumstances.  Thus,  where  a  husband  ob- 
tained a  divorce  from  his  wife  for  desertion,  it  was  held  that 
the  %vife  was  not  entitled  to  any  allowance  where  she  brought 
no  means  with  her,  and  without  any  excuse  had  deliberately 
abandoned  her  husband  and  lived  in  adultery .^  The  discre- 
tion of  the  court  may  be  influenced  in  favor  of  the  wife 
where  the  evidence  in  the  case  was  not  free  from  doubt,  or 
where  the  husband  has  not  been  free  from  fault.  All  the 
equities  of  the  case  are  then  entitled  to  some  weight,  and 
the  court  may  alleviate  the  harshness  of  the  decree  by  the 
amount  of  the  allowance.  In  an  Illinois  case  these  consider- 
ations are  thus  commented  upon :  "  In  the  present  case  it 
appears  that  the  husband  has  ample  property  for  a  comfort- 
able maintenance  for  himself  and  family.  The  labor  and 
frugality  of  the  wife  have  contributed  to  its  acquisition. 
She  has  passed  the  meridian  of  hf  e  and  is  without  a  separate 
estate.  If  the  evidence  does  not  show  she  was  entirely  jus- 
tified in  deserting  her  husband,  it  lacks  so  little  that  the 
difference  is  almost  inappreciable.  It  is  equitable  that  the 
husband,  out  of  his  abundance,  should  contribute  to  her  sup- 

gmlty  wife  in  all  cases  unless  she  2  Spitler  v.   Spitler,  108  111.  120. 

has  committed  adultery.    Dicker-  See,  also,  Hiokling  v.  Hickling,  40 

sonu  Dickerson,26Neb.  318;  State  111.   Ap.  73;  Spaulding  v.  Spauld- 

V.  Smith,  19  Wis.  531.  ing,  133  Ind.  123,  33  N.  E.  331,  and 

1  Spitler  V.  Spitler,  108  111.  120,  cases  cited. 
and    cases     cited.    Approved    in 
Luthe  V.  Luthe,  13  Colo.  431. 


854  PERMANENT   ALIMONY.  [§  908. 

port,  to  prevent  her  becoming  a  burden  upon  others,  even  if 
her  conduct  had  been  far  more  objectionable  that  it  is  proved 
to  have  been."  ^ 
§  908.  The  amount  of  the  permanent  allowance.— There 

is  no  absolute  rule  for  determining  the  amount  vrhiph  the 
wife  should  receive  when  an  absolute  divorce  is  rendered. 
It  is  not  a  proportion  of  the  husband's  income  or  of  his 
property.  The  amount  is  determined  by  the  equities  of  the 
case  and  the  financial  condition  of  the  parties.  The  terms 
of  the  statutes  provide  the  only  rule,  perhaps,  which  is  pos- 
sible in  the  nature  of  the  case)  "We  find  the  following  ex- 
pressions in  the  statutes :  "  Such  allowance  as  the  court  shall 
deem  just ; "  "having  regard  to  the  circumstances  of  the  par- 
ties respectively ; "  "  suitable  allowance  to  the  wife  for  her 
support,  during  her  life,  or  for  a  shorter  period,  as  the  court 
may  deem  just ; "  "  such  decree  ...  as  the  circumstances 
of  the  case  shall  render  just  and  proper ; "  and  other  similar 
phrases,  conferring  a  broad  and  hberal  discretion  upon  the 
courts  to  consider  all  the  circumstances  of  the  casa,  and  to 
make  such  provision  for  the  wife  as  the  equities  of  the  case 
require.  Some  aid  may  be  derived  from  the  observations 
of  the  courts  as  to  the  considerations  which  should  influence 
judicial  discretion  in  arriving  at  the  amount  of  alimony. 
"  The  power  which  the  statute  confers,"  says  one  court,  "  is 
to  make  such  allowance  as  the  court  shall  deem  just,  having 
regard  to  the  circumstances  of  the  parties;  that  is,  the 
amount  and  income  of  the  husband's  estate  and  the  other 
duties  and  burdens  chargeable  upon  him,  and  the  rank  and 
condition  in  life  of  the  wife.  On  a  divorce  for  adultery, 
the  considerations  governing  the  amount  of  alimony  are  es- 
sentially of  a  pecuniary  nature.  If  the  defendant  have  the 
ability  to  pay,  the  injured  party  is  to  recover  such  an  allow- 
ance as  will  correspond  with  her  social  position,  and  at  least 
maintain  her  in  the  style  and  condition  that  her  husband's 

1  Deenis  u  Deenis,  79  111.  74.  See,  28;  Gooden  v.  Gooden,  1891  Erob. 
also,  Davis  v.  Davis,  86  Ky.  32;  395.  For  award  to  guilty  husband, 
Midwinter  v.  Midwinter,  1892  Prob.    see  Abel  v.  Abel  (la.),  56  N.  W.  442. 


^  908.]  fEBMANEHT   ALIMONY.  855 

fortune  would  have  reasonable  justified  her  maintenance  but 
for  his  infidelity.  She  is  not  to  be  put  on  a  stinted  allow- 
ance because  the  husband  has  been  unfaithful  to  his  mar- 
riage vows;  but  this  is  rather  a  reason,  if  his  estate  be 
ample,  that  should  receive  a  generous  and  liberal  support. 
The  law  allots  no  definite  proportion  of  the  husband's  es- 
tate for  alimony,  but  leaves  the  court  to  award  such  sum  as 
in  the  discreet  exercise  of  the  power,  and  having  regard  to 
the  circumstances  of  the  parties,  shall  be  deemed  just.  As 
no  two  cases  are  alike,  what  would  be  just  in  one  might  be 
unjust  in  another.  Where  the  husband  is  possessed  of  a 
large  estate  and  has  no  children  or  relatives  dependent  on 
his  bounty,  and  the  wife  occupies  a  high  social  position  and 
'  is  a  lady  of  refined  and  intellectual  tastes,  it  would  be  just 
to  award  such  a  sum  as  would  be  ample  to  maintain  her  in 
the  state  to  which  she  has  been  accustomed,  though  such 
sum  was  one-third  or  even  one-half  of  his  income.  On  the 
other  hand,  where  the  estate  of  the  husband  is  limited,  and 
he  has  duties  or  burdens  chargeable  upon  him,  and  the 
Avife's  condition  and  station  in  life  is  comparatively  humble, 
it  would  not  accord  with  a  just  sense,  nor  would  there  be  a 
fitness  and  propriety  in  it,  to  strip  the  husband  of  the  bulk 
of  his  property  and  bestow  it  on  the  wife.  On  adjusting 
the  allowance  where  there  has  been  a  divorce  for  adultery, 
as  it  is  an  act  of  judicial  discretion,  the  court  may  take  into 
account  imputations  against  the  wife,  and  even  her  moral 
delinquencies,  after  judgment  has  passed  in  her  favor ;  but 
under  the  statute,  and  in  harmony  with  the  course  of  judi- 
cial decision,  the  main  and  legitimate  subjects  of  inquiry  are 
the  proper  measure  of  the  wife's  expenditures,  the  amount 
and  incoine  of  the  husband's  estate,  and  other  duties  or 
burdens  chargeable  upon  him." ' 

1  Forrest  v.  Forrest,  35  N.  Y.  501-  nocent  party  should  not  be  left  to 

-515.     Mr.   Bishop    lays  down  the  suffer  pecuniarily  for  having  been 

following  principles  for  the  allot-  compelled,  by  the  conduct  of  the 

ment  of  aUmony  on  a  decree  for  other,  to   seek  the  divorce.    Sec- 

.absolute  divorce:   "First.  The  in-  ond.  The  wife,  made  thus  in  a  cer- 


856  PERMANENT   ALIMONY.  [§  908.- 

The  decree  must  be  equitable  and  not  oppressive.  The- 
circumstances  of  the  husband  must  always  be  considered: 
The  decree  should,  as  far  as  possible,  provide  a  suitable 
maintenance  for  the  wife  without  impairing  the  capital  of 
the  husband  or  confiscating  his  ready  means.  It  is  an  abuse 
of  discretion  to  allow  the  wife  so  large  an  amount  of  real 
and  personal  property  as  to  destroy  the  husband's  business,, 
when  a  gross  sum  might  have  answered  the  same  purpose.'- 

The  object  of  the  English  divorce  court  in  fixing  a  per- 
manent maintenance  and  adjusting  the  property  rights  of 
the  parties  is  to  place  the  innocent  party,  as  far  as  practi- 
cable, in  the  same  pecuniary  condition  as  before  the  mar- 
riage was  dissolved.^  The  leading  principle  in  such  cases 
seems  to  be,  "  The  innocent  party  should  not  ie  left  to  suffer 
pecuniarily  for  Jux/ving  ieen  compelled,  hy  the  conduct  of  the 
other,  to  seek  divorce."  '  Accordingly  the  innocent  wife  shouldi 
receive  the  same  support  as  if  the  parties  had  continued  to- 
liye  together.*  If,  however,  the  wife  has  separate  property,, 
or  an  inchoate  right  of  dower,  the  court  must  allow  com- 
pensation for  her  property  rights  in  addition  to  her  ordi- 
nary maintenance.  In  many  cases,  but  not  in  all,  an  admi- 
rable equity  may  be  accomplished  by  treating  the  wife  as  if 
the  marriage  had  been  dissolved  by  death,  and  allowing  her 
the  rights  of  a  widow  in  both  personal  and  real  property.' 
Such  a  rule,  if  followed  in  all  cases,  would  deprive  the  court 
of  the  discretionary  power  to  regulate  the  amount  accord- 
ing to  the  conduct  of  the  parties  and  the  necessities  of  the 

tain  sense    a  -widow,  should  not  proved  in  Calame  v.  Calame,  34 

usually  be  set  back  simply  where  N.  J.  Eq.  440. 

she    stood   in   point    of  property  i  Raymond  v.  Eaymond,  13  111. 

when  she  entered  the   marriage.  Ap.  173.    See,  also,  Rea  v.  Rea,  53- 

She  has  given  her  time,  her  vir-  Mich.  40. 

ginity,  her  earlier  bloom,  where  ^ggnyon  v.  Benyon,  1  P.  D.  447.- 

she  has  been  awarded  only  with  3  Mussing  i;.  Mussing,  104  111.  136 ; 

ill-faith  in   return  for  her  faith.  Johnson  v.  Johnson,  36  111.  Ap.  153> 

Third.  She  should  not  stand  worse  4  Packard  v.  Packard,  34  Kan.  nz  -,- 

than  if  death,  instead  of  divorce,  Boyoe  v.  Boyce,  37  N.  J.  Eq.  433. 

had  dissolved  the  connection."  Ap-  'Thornberry    v.  Thornberry,    4- 

Litt.  (Ky.)  351  (1838). 


§  908.]  PEEMANENT   ALIMOITT.  857 

case.  Another  rule  is  that  "  where  the  wife,  by  her  industry 
and  economy,  has  contributed  to  the  accumulation  of  the 
property,  and  where  the  divorce  has  been  granted  to  her 
on  account  of  the  misconduct  of  the  husband,  .  .  .  she 
should  not  be  placed  in  a  worse  condition  than  if  she  had 
survived  her  husband;  otherwise  the  husband  would  be 
permitted  to  take  advantage  of  his  own  wrong.'"  And 
this  rule  is  approved  so  far  as  it  fixes  the  minimum  amount 
of  the  allowance.^ 

A  just  and  equitable  allowance  made  upon  a  decree  dis- 
solving the  marriage  must  compensate  the  wife  for  all  dam- 
ages which  she  may  sustain,  and  place  her  in  a  financial 
condition  as  good  as  if  the  marriage  had  continued.  Equity 
requires  that  the  husband  should  not  profit  by  his  own 
wrong.  The  court,  in  estimating  what  allowance  will  be 
proper  under  the  circumstances,  should  consider  all  the  prop- 
erty rights  of  the  wife  separately.  The  allowance  is  not  to 
be  a  mere  provision  for  the  continued  support  of  the  wife, 
but  is  a  composite  sum  having  one  or  more  of  the  following 
elements  according  to  the  circumstances  of  the  case : 

1.  Compensation  for  the  wife's  property  rights.' 

2.  Compensation  for  injuries.* 

3.  Compensation  for  the  loss  of  support.' 

It  wiU  be  noticed  that  upon  a  divorce  a  mensa  the  first 
two  elements  do  not  form  a  part  of,  or  in  any  way  influence, 
the  amount  of  the  allowance.  For  this  reason  it  is  neces- 
sary to  distinguish  between  the  allowance  on  absolute  di- 
vorce and  the  permanent  alimony  of  the  common  law  on  a 
decree  a  mensa.  The  reason  of  the  common  law  applies  only 
to  the  last  two  elements;  and  where  neither  husband  nor 
wife  has  property,  and  the  decree  is  based  upon  his  income, 
the  allowance  is  substantially  that  of  the  permanent  alimony 
of  the  common  law. 

'  Musselman   v.   Musselman,  44       ^  See  §  909. 
Ind.  106.  ■"  §  910. 

2  Graft  V.  Graft,  76  Ind.  136,  »  §  911. 


658  PEEMANENT   ALIMONY.  [§  909. 

§  909.  Compensation  for  the  wife's  propertjv  rights. — 

We  have  seen  that  the  decree  for  a  permanent  allowance  is 
a  final  adjudication  of  all  property  rights  between  the  par- 
ties. After  such  decree  neither  party  has  any  claim  upon 
the  other  of  any  kind.  The  parties  have  in  the  proper  tri- 
bunal and  at  an  appropriate  time  had  an  opportunity  to 
litigate  their  property  rights,  and  the  decree  is  presumed  to 
be  an  adjudication  of  all  matters  which  might  have  been 
tried  in  such  action.  It  follows  that  in  estimating  the  proper 
a,mount  for  the  wife  aU  her  claims  against  the  husband  must 
be  considered. 

One  element  iri  the  permanent  allowance  is  the  compen- 
sation for  the  wife's  contribution  to  the  common  fund. 
"What  she  has  contributed  was  for  the  benefit  of  both,  and 
if  so  applied  should'  be  in  part  restored,  if  the  husband's 
means  are  sufficient.  This  restoration  may  be  accomplished 
by  a  division  of  the  property,  by  the  return  of  specific  prop- 
erty, or  by  including  the  value  of  her  contributions  in  esti- 
mating the  allowance.  If  the  decree  is  rendered  by  a  court 
of  equity,  it  seems  clear  that  the  husband  may  .be  ordered 
to  restore  specific  property  to  the  wife.^  In  some  states 
the  power  to  restore  separate  property  to  the  wife  is  de- 
rived from  statute.^  In  various  circumstances  the  husband 
will  be  relieved  from  restoring  the  wife's  separate  property 
or  its  equivalent ;  as  where  the  money  or  proceeds  of  the 
property  have  been  consumed  by  the  family,  and  the  hus- 

1  Vincent  v.  Parker,  7  Paige,  65;  v.  Day,  2  Pick.  316;  Pkge  v.  Estes, 
Holmes  v.  Holmes,  4  Barb.  295.  19  Pick.  269;  Grubb  v.  Grubb,  1 
See,  also,  A.  v.  M.,  10  P.  D.  178;  Har.  (Del.)  516;  Handlin  v.  Hand- 
Wood  V.  Wood,  14  P.  D.  157.  It  is  lin,  37  W.  Va.  486,'  16  S.  E.  597; 
almost  a  matter  of  course  for  the  Jackson  v.  Jackson,  1  MaoAr.  34; 
court  to  apportion  the  household  Dillon  v.  Starin  (Neb.),  63  N.  W.  12. 
furniture.  But  see  contra  on  a  de-  Where  the  court  allows  the  wife 
cree  of  separation.  Doe  v.  Doe,  52  a  sum  in  lieu  of  her  equitable 
Hun,  405.  interest  in   the    lands   purchased 

2  Chase  v.  Phillips,  153  Mass.  17;  with  her  money  the  legal  title  to 
Tayman  v.  Tayman,  2  Md.  Ch.  393;  which  is  in  the  husband,  the  value 
Flood  V.  Flood,  5  Bush,  167;  Dean  of  her  interest  should  be  carefully 
t\  Richmond,  5  Pick.  461;  Kriger  estimated,  as  the  decree  deprives 


§  909.]  PEHMANENT   ALIIIOXY.  859 

band  has  only  sufficient  means  to  support  the  family.*  Gen- 
erally the  courts  do  not  attempt  to  restore  specific  property, 
but  accomplish  the  same  purpose  by  estimating  the  amount  of 
.property  the  wife  brought  to  the  common  fund  at  marriage, 
or  subsequently  contributed  by  her,  and  increasing  the  allow- 
ance accordingly.^  "Where  she  has  made  no  contributions 
the  allowance  is  smaller,  and  is  based  on  other  considera- 
tions.' The  fact  that  she  had  no  separate  estate,  but  holds 
property  conveyed  to  her  by  her  husband,  is  not  a  bar  to  an 
allowance ;  but  the  income  from  the  property  is  deducted 
from  the  estimate  of  the  proper  allowance.^  If  the  wife  had 
no  property  at  marriage,  and  contributed  nothing  except 
her  services  during  the  time  the  parties  lived  together,  she 
is  not  entitled  to  a  very  liberal  award  of  alimony.^  Where 
the  property  has  been  acquired  by  joint  effort  the  allowance 
should  be  liberal.*  In  such  case  an  equal  division  would 
seem  to  be  a  proper  basis;  but  that  proportion  might  be  in- 
creased where  the  husband  is  guilty  of  some  serious  offense 
against  the  wife. 

The  loss  of  the  inchoate  right  of  dower  is  another  ele- 
ment of  the  damages  incurred  by  the  wife  on  a  total  di- 
vorce. She  ceases  to  be  his  wife  and  cannot  inherit  as  his 
widow,  for  the  total  divorce  terminates  all  her  non-vested 

her  of  all  equitable  interest  in  the  ^wilson  u  Wilson,  102  lU.  297; 

land.     Brooks  v.  Akeny,  7  Or.  461.  Wilde  v.  Wilde,  37  Neb.  891;  Ees- 

1  See  other  circnmstances  in  Dean  sor  v.  Eessor,  82  111.  442;  Atkins  v. 

V.  Dean,  5  Pick.  428;   Warner  v.  Atkins,  13  Neb.  271;   McConahey 

Warner,  33  Miss.  547;  Hagerty  v.  v.  McConahey,  21  Neb.  463;  Cum- 

Harwell,   16    Tex.    663;    Sharp  v.  mings  v.  Cummings,  50  Mich.  305; 

Sharp,    84    Tenn,    496;    Whittier  Bobbins  v.  Bobbins,  101  111.  416. 

uWhittier,  11   Fost.  (N.  H.)  452;  3 Id. ;  Leach  u  Leach,  46  Kan.  724, 

Jennings  v.  Montaigne,  3    Gratt.  27  P.  131. 

350;    Lishey  i).  Lishey,  3  Tenn.  1,  <  Cole  i).  Cole,  27  Wis.  531. 

and  cases  cited.    Where  the  hus-  syost  v.  Tost  (Ind.),  41  N.  E.  11. 

band  and  his  family  occupied  the  «  Gercke  v.  Gercke,  100  Mo.  237, 

wife's  house  during  the  suit  for  di-  13  S.  W.  400;  Musselman  v.  Mussel- 

vflrce,  the  husband  is  not  liable  to  man,  44  Ind.  106;  Sesterhen  v.  Ses- 

her  for  the  use  of  the  property,  terhen,  60  la.  301;  Hedricku  Hed- 

Edwards  v.  Edwards  (Miss.),  15  So.  rick,  138  Ind.  533. 
43. 


860  PERMANENT   ALIMONY.  [§  910, 

rights  dependent  on  the  marriage.  In  some  states  this  ele- 
ment is  not  included  in  the  estimate,  as  the  statute  provides 
that  on  divorce  the  right  to  dower  accrues  as  if  the  husband 
were  dead.^  Yet  in  these  states  it  is  competent  for  the 
court  to  make  an  allowance  in  lieu  of  dower.^  The  court 
would  have  no  authority  to  include  the  value  of  the  dowei" 
right  in  an  allowance  on  a  decree  a  mensa,  as  such  partial 
divorce  does  not  terminate  the  right  of  dower.'  A  provision- 
in  lieu  of  dower  on  such  decree  would  not  bar  the  right  of 
dower.*  "Where  a  provision  is  made  for  the  wife  on  a  total 
divorce,  either  in  a  decree  for  alimony  or  in  a  decree  entered 
in  conformity  to  the  agreement  of  the  parties,  such  provis- 
ion is  presumed  to  be  in  lieu  of  dower.^  And  this  is  true 
although  the  statute  provide  that  the  wife  is  entitled  to 
dower  on  divorce  in  her  favor  as  if  the  husband  were  dead.* 
The  court  may  award  an  allowance  in  lieu  of  dower,  although 
the  statute  preserves  the  right  of  dower  after  divorce.'' 

The  value  of  the  inchoate  right  of  dower  is  not  to  be  esti- 
mated as  if  the  husband  were  dead,  unless  the  statute  so 
provide.  The  value  of  the  right  will  depend  upon  the  pos- 
sibility of  the  wife  surviving  the  husband,  as  shown  by  the 
age  and  health  of  each  party,  and  other  circumstances.* 

§  910.  Compensation  for  injuries. —  The  suit  for  divorce 
is  not  an  action  in  tort  to  recover  damages  inflicted  by  a 
cause  for  divorce.  To  recompense  the  injured  party,  and 
relieve  him  or  her  from  the  obligations  of  the  marriage, 
might  be  exact  justice  between  the  parties;  but  it  is  clear 
that  such  a  rule  would  place  the  marriage  relation  upon  the 
same  level  as  parties  bound  by  an  ordinary  contract, —  a  po-, 

1  Percival  v.  Peroival,  56  Mich.        *  Grain  v.  Cavana,  36  Barb.  410. 
297,  32  N.  W.  807;  Orth  u  Orth,  69        ^Xatro    u   Tatro,   18    Neb.    395-^ 
Jlich.  158,  37  N.  W.  67;  Lamkin  v.  Adams  v.  Storey,  135  111.  448. 
Knapp,  20    O.   St.   454;    Crane  v.        ^  Tatro  u  Tatro,  sifpra. 

Fipps,  29  Kan.  585.  'Beed    v.    Reed,    86    Mich.   600;. 

2  Owen  V.  Yale,  75  Mich.  256,  42    Owen  v.  Yale,  75  Mich.  256,  43  N. 
N.  W.  817;  Tatro  v.  Tatro,  18  Neb.    W.  817. 

395;  Plaster  u  Plaster,  47  111.  290.  SGeroke  v.  Gercke,  100  Mo.  337. 

3  Taylor  v.  Taylor,  93  N.  C.  418.        13  S.  W.  400. 


§  910.]  PEKMANENT   ALIMONY.  861 

sition  repugnant  to  sound  public  policy.  The  husband's 
misconduct  is  only  an  element  in  the  composite  sum  -which 
is  to  be  allowed  the  Avif  e.  The  statute  requiring  the  amount 
to  be  fixed  with  "  due  regard  to  the  circumstances  of  the 
parties "  requires  the  court  to  consider  the  nature  of  the 
husband's  offense.  "  The  wife,"  says  Mr.  Bishop,  "  should 
not  ordinarily  be  set  back  simply  where  she  stood  in  prop- 
erty when  she  entered  the  marriage;  she  has  given  her  time, 
her  virginity,  her  earlier  bloom,  where  she  has  been  rewarded 
with  ill-faith  in  return  for  her  faith."  So  the  ecclesiastical 
courts  considered  the  nature  of  the  husband's  offense,  and 
its  effect  upon  the  wife,  and  regulated  the  amount  accord- 
ingly.i  Our  courts  have  followed  the  same  principle,  and 
to  some  extent  rewarded  the  wife  for  meritorious  conduct 
and  made  some  reparation  for  the  cruelty  and  hardship 
endured  during  the  marriage.^  Where  the  husband  has 
communicated  a  venereal  disease  to  the  wife  and  thereby 
permanently  injured  her  health,  such  fact  may  be  considered 
in  fixing  the  amount  of  alimony.'  The  fact  that  judicial 
discretion  is  influenced  by  the  nature  of  the  husband's  de- 
lictum has  led  some  of  our  courts  to  consider  alimony  as 
compensation  for  the  injury  inflicted  by  the  misconduct  and 
by  the  breach  of  the  marriage  contract  to  love  and  cherish. 
And  there  are  some  recent  adjudications  that  alimony  is  a 
compensation  for  her  injuries.*  The  allowance,  as  we  have 
seen,  is  a  composite  sum,  and  the  compensation  to  the  wife 
for  the  tort  inflicted  by  the  husband  is  but  one  element  of 
that  sum.    It  would  be  better  to  consider  the  permanent 

1  See  leading  case,  Cookeu  Cooke,  Pauly  v.  Pauly,  69  "Wis.  419 ;  Ensler 
3  Phillim.  40,  in  §  901.  See,  also,  v.  Ensler,  72  la.  159;  Mussing  v. 
Bees  V.  Eees,  3  Phillim.  387;  Du-  Mussing,  104  lU.  126;  Pence  v. 
rant  v.  Durant,  1  Hag.  Ec.  538;  Pence,  6  B.  Mon.  496;  Davis  v. 
Smith  V.  Smith,   2    PMUim.   235;  Davis,  86  Ky.  33. 

Mytton  -y.  Mytton,  3  Hag.  Ec.  657;  ^Gusman  v.  Gusman   (Ind.),   39 

Otway  V.  Otvsray,  3  Phillim.  109.  N.  E.  918. 

2  Burr  V.  Burr,  7  Hill  (N.  Y.),  207;  <  steams  v.  Stearns  (Vt),  38  A. 
TurreU  v.  Turrell,  3  Johns.  Ch.  391 ;  875 ;  In  re  Spencer,  83  Cal.  460,  33  P. 
Lishey  v.  Lishey,  3  Tenn.  Ch.  1;  395;  Pauly  v.  Pauly,  69  Wis.  419. 


862  PERMANENT   ALIMONY.  [§§  911,  912. 

allowance  as  damages  for  the  breach  of  the  marriage  con- 
tract. 

§  911.  Compensation  for  loss  of  support.— The  perma- 
nent allowance  is  principally  an  equivalent  for  the  loss  of 
the  support  of  the  husband.  The  obligation  of  support  is. 
assumed  by  the  husband  at  marriage,  and  on  divorce  for  his. 
fault  he  is  not  relieved  of  this  duty,  but  the  general  obliga- 
tion is  continued  by  the  decree  for  alimony.  The  fact  that 
the  husband  has  no  property  does  not  relieve  him  from  this 
obligation.  If  the  wife  has  separate  property,  or  he  has 
conveyed  property  to  her,  and  either  is  sufficient  for  her  sup- 
port, no  allowance  need  be  made ;  but  if  either  is  inadequate 
the  deficiency  must  be  supplied  by  an  allowance. 

§913.  The  husband's  income  and  property. —  In  deter- 
mining the  amount  to  be  allowed  the  wife  on  a  decree  dis- 
solving the  marriage,  the  property  of  the  husband,  both  real 
and  personal,  whether  productive  or  non-productive,  will  be 
considered.  The  house  occupied  by  him  may  be  treated  as 
part  of  his  resources,  and  its  rental  value  estimated  as  a  part 
of  his  income.'  The  inquiry  extends  to  the  date  of  the  di- 
vorce, and  property  acquired  during  the  suit  may  be  in- 
cluded in  the  estimate.^  But  it  is  doubtful  if  anything 
further  than  vested  interests  should  be  considered.'  After 
an  absolute  divorce  the  wife  would  have  no  interest  in  prop- 
erty inherited  by  the  husband.*  The  property  must  be  esti- 
mated at  its  fair  market  value  and  not  its  speculative  or 
prospective  value  or  its  value  at  forced  sale.'  United  States 
bonds  should  not  be  estimated  at  the  par  value  but  at  the 
market  value.*    Under  proper  pleadings  the  fraudulent  con- 

iBrisco  V.  Brisco,  2  Hag.   Con.  Harris  v.  Harris,  1  Hag.  Eo.  351; 

199;  Cooke  v.  Cooke,  3  Phil.  40;  De  Bruere  v.  Bruere,  1  Curt.  Eo.  566. 
Blaquire  v.  De  Blaquire,  3  Hag.  Ec.        *  Van  Orsdal  v.  Van  Orsdal,  67  la. 

323.  35.    But  see  contra,  Eeed  v.  Reed, 

2  Sparhawk  v.  Sparhawk,  120  86  Mich.  600 ;  Johnson  v.  Johnson, 
Mass.    390.     See,    also,    Cralle    v.  36  111.  Ap.  153. 

Cralle,  79  Va.  183,  84  Va.  198.  sgegelbaum    v.    Segelbaum,    39 

3  Stone  V.  Stone,  3  Curt.  Ec.  341;    Minn.  358. 

6  Thomas  v.  Thomas,  41  Wis.  339. 


§  912.]  PERMANENT   ALIMONY.  863 

veyances  of  the  husband  may  be  set  aside  and  the  property 
included  in  the  estimate.  Keal  property  situated  beyond 
the  jurisdiction  of  the  court  may  be  considered  as  part  of 
the  resources  of  the  husband.  And  so  may  pensions  granted 
by  the  United  States  for  disabilities  acquired  in  the  service.*' 
"Where  the  husband  has  health,  business  experience  and 
ability,  or  has  a  profession  or  occupation  of  any  kind,  the 
amount  which  he  usually  derives  from  his  personal  exertions 
may  be  added  to  his  income  from  other  sources.^  Bat  in  this 
estuuate  of  his  future  income  his  ageand  health  must  not  be 
overlooked.'  The  court  may  include,  as  a  part  of  the  hus- 
band's income,  the  earnings  of  the  children  while  in  their 
minority.* 

The  gross  income  and  the  gross  amount  of  property  hav- 
ing been  computed,  a  reduction  must  be  made  for  all  ionor 
fide  debts  of  the  husband,  the  expenses  of  the  business,  and 
the  necessary  repairs  ■  and  improvements  for  his  real  estate,. 
and  also  all  taxes  on  both  personal  and  real  property.'  In 
arriving  at  the  net  income  of  the  husband  no  deduction  is- 
made  for  his  personal  and  household  expenses.  The  amount 
necessary  for  the  support  and  education  of  the  children  is- 
not  deducted  from  his  net  income,  but  is  taken  into  consider- 
ation in  fixing  the  allowance  for  the  wife.  A  deduction 
should  be  made  for  amounts  due  on  the  husband's  insurance 
policies,  whether  payable  to  the  wife,  his  creditors  or  his 
heirs.  If  the  policy  can  be  converted  into  money  at  any 
time,  the  surrender  value  may  be  considered  in  the  estimate- 
of  the  husband's  property.*    In  estimating  the  future  income? 

1  Hedrick  u  Hedrick,  128  Ind.  533,  S.  W.  878;  Freeman  v.  Freeman 
36  N.  E.  768.  (Ky.),  13  S.  "W.  346. 

2  Pauley  v.  Pauley,  69  Wis.  419, 34  <  Mussing  v.  Mussing,  104  111.  136. 
N.  W.  513;  Logan  v.  Logan,  90  Ind.  '  Newsome  ■;;.  Newsome  (Ky.),  35' 
107;  Battey  v.  Battey,  1  R.  L  313;  S.  W.  878. 

Holmes  v.  Holmes,  39  N.  J.  Eq.  9;  ^Forster  v.  Forster,  3  Swab.  &  T. 

SmaU  V.  Small,  38  Neb.  843 ;  Butler  553 ;  Frankfort  v.  Frankfort,  4  Notes 

V.  Butler,  38  N.  J.  Eq.  636;  Carlton  Cas.  380;  Harris  v.  Harris,  1  Hag. 

V.  Carlton,  44  Ga.  316;  Vemer  v.  Ec.  351;  Pemberton  v.  Pemberton, 

Vemer,  64  Miss.  184  3  Notes  Cas.  17. 

3  Newsome  v.  Newsome  (Ky.),  35 


S61  PERMANENT   ALIMONY.  [§  913. 

of  the  husband,  the  nature  of  the  securities  which  he  holds, 
and  the  probable  profits  of  his  business,  are  to  be  deter- 
mined. The  fact  that  the  husband  has  sustained  losses  by 
speculation,  and  for  some  time  has  had  no  profit  from  his 
investments,  does  not  excuse  him  from  the  payment  of  an 
allowance  based  upon  a  fair  income  from  his  property  under 
proper  management.^  The  fact  that  the  husband's  invest- 
ments are  not  yielding  an  income  will  not  deprive  the  wife 
of  alimony,  for  the  value  of  the  investments  will  be  esti- 
mated and  alimony  based  thereon.^ 

§  913.  The  wife's  income  and  property. —  The  income 
and  property  of  the  wife  are  estimated  in  the  same  manner 
as  the  estate  of  the  husband.  Her  earnings  and  her  ability 
to  earn  are  an  important  element  in  the  estimate  where  she 
has  been  accustomed  to  labor  of  any  Mnd.'  "Where  the  wife 
has  any  means  of  support,  the  fact  has  an  important  bearing 
on  the  amount  of  alimony.  Under  the  principles  of  the  per- 
manent alimony  of  the  common  law,  the  wife  was  not  en- 
titled to  alimony  if  she  possessed  an  income  proportionate 
to  her  husband's  or  had  adequate  means  of  her  own.*  The 
object  of  the  estimate  being  a  suitable  proportion  of  the  joint 
income,  the  income  of  the  wife  was  added  to  that  of  the  hus- 
band, and  a  suitable  proportion  for  the  wife  was  estimated 
on  this  aggregate  sum.  The  wife's  income  was  then  de- 
ducted from  the  suitable  proportion,  and  the  remainder  was 
the  amount  of  her  allowance.^  If  the  .allowance  '  is  to  be 
made  on  a  decree  dissolving  the  bonds  of  matrimony,  this 
method  of  calculation  would  not  apply;  the  permanent 
allowance  being  a  compensation  for  property  rights,  etc., 
which  would  otherwise  be  lost  on  a  dissolution  of  the  mar- 
riage.    Property  derived  from  the  husband  is  included  in 

iNeil   V.  Neil,  4  Hag.  Ec.  373;  <  Bremner  ?;.  Bremner,  3  Swab.  & 

Theobald    v.  Theobald,    15    P.  D.  T.  249. 

26.  5  3   Bishop,  Mar.,  Sep.    &    Div., 

2  Close  V.  Close,  10  C.  E.  Green,  §  1012,  citing  Cooke  v.  Cooke,  2 
434.  PhiUim.  40 ;  Street  v.  Street,  3  Add. 

3  Goodheim  v.  Goodheim,  2  Swab.  Ec.  1;  Morse  v.  Morse,  25  Ind.  156; 
&  T.  250.  Cole  V.  Cole,  37  Wis.  531. 


§§  914:,  915.]  PERMANENT   ALIMONY.  865 

the  estimate,  and  if  sufficient  compensation,  or  equal  to  the 
amount  of  alimony  which  she  would  otherwise  receive,  no 
allowance  will  be  made.* 

§  914.  "The  support  of  the  children.—  In  fixing  the 
amount  of  the  allowance  the  court  must  not  overlook  the 
support  of  the  children  of  the  parties.  The  husband  is  not 
liable  for  the  support  of  his  step-children,  and  no  deduction 
is  allowed  for  their  support.*  Before  the  order  for  perma- 
nent allowance  is  made,  the  custody  of  the  children  should 
be  determined.  If  the  husband  retain  them  in  his  custody 
or  if  he  remain  liable  for  their  support,  the  alimony  should 
be  diminished  accordingly.'  If  his  property  and  income  are 
barely  sufficient  for  the  support  of  himself  and  children, 
alimony  may  be  refused.*  For  the  claims  of  the  children 
are  paramount  to  that  of  the  wife.'  The  fact  that  some  of 
the  children  are  grown  up  and  have  been  provided  for,  or 
are  able  to  support  themselves,  should  not  be  overlooked.* 
The  allowance  must  be  greater  where  the  wife  retains  the 
custody  of  the  children.' 

The  amount  necessary  for  the  support  and  education  of 
the  children  should  be  first  determined,  and  the  allowance 
to  the  wife  can  be  based  upon  the  remainder  of  the  hus- 
band's property. 

§  915.  Agreements  relating  to  alimony. —  The  agree- 
ment of  the  parties  with  reference  to  the  permanent  allow- 
ance is  valid,  and  it  will  generally  be  approved  by  the  court, 
and  a  decree  may  be  entered  in  conformity  to  it.'    Agree- 

i  Stevens  v.  Stevens,  49  Mich.  504.  stead  is  exempt  from  wife's  claim, 

2  Freeman  v.  Freeman  (K7.),  13  Biffle  v.  Pullman,  114  Mo.  50,  21  S. 

S.  W.  246.  W.  450. 

s  Coon  V.  Coon,  26  Ind.  189;  Metz-  s  Jeter   v.    Jeter,   36   Ala.    391; 

ler  V.  Metzler,  99  Ind.  384;  Luthe  Berryman  v.  Berryman,  59  Mich. 

v.Luthe,12Col.421;  Graf t ».  Graf t,  605. 

76  Ind.  136;  Sesterhen  v.  Sesterhen,  ^  Scragg  v.  Scragg,  18  N.  Y.  Supp. 

60  la.  301.  487. 

<See  Ensler  v.  Ensler,  73  la.  159.  «  See  construction  of  such  decrees 

»  EidenmuUer  v.  EidenmuUer,  37  and  agreements.    Storey  v.  Storey, 

Cal.    364.    See   also  when   home-  23  111.  Ap.  558, 125  111.  608;  Allison 
53 


866  PERMANENT   ALIMONY,  [§  916. 

ments  to  pay  the  wife  a  certain  sum  in  lien  of  alimony  on 
condition  that  she  obtain  a  divorce  are  collusive  and  con- 
trary to  public  policy ;  and  where  such  agreements  are  not 
disclosed  to  the  court  the  wife  wiU  be  entitled  to  dower  as 
if  no  alimony  had  been  awarded.'  Such  agreements  must 
be  free  from  collusion  or  fraud ;  and  the  court  may  investi- 
gate the  circumstances  of  the  parties  and  the  nature  of  the 
agreement  for  the  protection  of  the  public  as  well  as  of  the 
wif  e.^  The  court  is  not  bound  by  the  agreement  relating  to 
alimony;  and  if  the  amount  is  not  considered  sufficient,  an 
additional  allowance  may  be  made,  or  the  agreement  may 
be  ignored  and  an  adequate  allowance  made  for  the  wife.' 

§  916.  Other  circumstances  which  determine  the 
amount. —  In  addition  to  the  elements  of  the  allowance  and 
the  pecuniary  circumstances  of  the  parties  there  are  other 
circumstances  which  influence  judicial  discretion  and  have 
some  weight  in  determining  the  amount  of  the  allowance. 
The  respective  ages  of  the  parties  and  the  duration  of  their 
marriage  are  frequently  commented  upon  by  the  courts.* 
The  wife's  age,  and  her  condition  of  health,  may  justify  an 

V.  Allison  (S.  Dak.),  58  N.  "W.  563;  Misc.  511,  the  parties  entered  into 

Cheever*  v.  Wilson,  9  "Wall.   108;  an  agreement  that  a  decree  of-sep- 

Wilson  V.  Wilson,  45  Cal.  399.    For  aration  and  an  order  for  alimony 

agreements  that  will  be  approved,  might  be  entered,  and  such  decree 

see  Calame  v.  Calame,  25  N.  J.  Eq.  and  order  were  entered  without 

548;  Martin  v.  Martin,  65  la.  255:  the  knowledge  of  the  court.     It 

Carson    v.    Murry,    3    Paige.'  483;  was  held  that  the  decree  was  void, 

Miller  v.  Miller,  64  Me.  484;  Bar-  but  that  in  making  an  allowance 

bour  V.  Barbour  (N.  J.  Eq.),  24  A.  to  the  wife  the  amounts  paid  on 

227;  Crews  v.  Mooney,  74  Mo.  26;  the  decree  v/ould  be  considered. 

Petersine  v.  Thomas,  SB  O.  St.  596;  ^  Burr  v.  Burr,  7  Hill  (N.  Y.),  207 

Buck  V.  Buck,  60  111.  242;  Olney  v.  Lovett  v.  Lovett,  11  Ala.  763;  Res' 

Watts,  43  O.  St.  409,  3  N.  E.  354.  sor  v.  Eessor,  82  111.  443;  Ensler  v. 

1  Seeley's  Appeal,  56  Conn.  202.  Ensler,  72  la.  159,  33  N.  W.  884 

2  Gracey  v.  Gracey,  17  Grant  Ch.  Miller  v.  Miller,  6  Johns.  Ch.  91 
113;  Chapin  v.  Chapin,  135  Mass.  Freeman  i?.  Freeman  (Ky.),  13  S.  W, 
393.  246;  Newsome  v.  Newsome  (Ky.), 

s  Dailey  v.  Dailey,  30  N.  Y.  Supp.  25  S.  W.  878;  Varney  v.  Varney,  58 
337;  McLaren  v.  McLaren,  33  Ga.    Wis.  19.  > 

(Supp.)  99.    In  Dailey  v.  Dailey,  9 


§  916.]  PERMANENT   ALIMONY.  867 

increased  allowance.^  If  the  husband  is  able  to  support  him- 
self only,  and  the  wife  is  in  feeble  health,  the  larger  portion 
of  the  property  may  be  set  apart  for  the  wif e.^  The  amount 
of  the  allowance  should  not  be  large  where  the  wife  is 
young  and  healthy,  brought  no  property  to  her  husband, 
and  did  not  aid  him  in  accumulating  any.  This  is  especially 
true  where  she  obtained  a  divorce  for  the  purpose  of  mar- 
rying him,  and  lived  with  him  but  a  short  time.'  Where  the 
husband  was  seventy-five  years  old,  and  was  the  fourth  hus- 
band of  the  wife,  and  she  was  his  seventh  wife,  and  the 
parties  lived  together  about  fourteen  months,  during  which 
time  she  refused  to  perform  the  duties  of  a  wife,  the  sum  of 
SlOO  was  held  a  sufficient  allowance  on  an  absolute  divorce 
for  his  abandonment,  although  his  property  was  estimated 
at  $2,500.*  Where  the  husband  was  sixty-eight,  and  the 
wife  but  forty,  and  he  was  a  cripple,  and  scarcely  able  to 
support  himself  and  his  children  by  a  former  wife,  the  sum 
of  $450  alimony  was  held  excessive,  and  the  supreme  court, 
not  being  satisfied  that  the  evidence  warranted  a  divorce, 
allowed  the  decree  to  stand,  but  denied  all  ahmony  to  the 
wife,  although  the  husband  had  a  home  worth  §1,600,  and 
about  S200  in  money.''  Where  the  wife  had  deserted  the 
husband  or  been  guilty  of  other  misconduct  which  was  con- 
ducive of  the  adultery  complained  of,  her  allowance  Avill  be 
less  than  if  she  had  been  discreet."   The  amount  is  less  where 

1  Doolittle  V.  Doolittle,  78  la.  691,  his  own  support,  or  for  the  support 
43  N.  W.  616;  Gercke  v.  Gercke,  of  his  wife,  may  be  so  limited  that 
100  Mo.  237,  13  S.  W.  400;  Finlay  it  would  be  better  for  both  parties 
V.  Finlay,  Milward,  575;  Lynde  v.  that  no  order  for  support  be  made, 
Lynde,  4  Sandf.  373.  and  that  in  lieu  thereof  the  real 

2  Webster  v.  Webster,  64  Wis.  438.  property  be  given  to  the  wife." 
"A    case  might    occur    where  it        SQummings    v.    Cummings,    50 
would  be  eminently  proper  to  di-  Mich.  305. 

vest  the  title  to  all  the  real  estate  *  Tumblesome  v.  Tumblesome,  79 

of  the  husband,  and  vest  the  same  Ind.  558. 

in  the  wife,  especially  where  the  sEnsler  v.  Ensler,  73  la.  158. 

husband  is  in   fault,  causing  the  epeckford  v.  Peckford,  1  Paige, 

judgment  for  divorce.   The  ability  S74, 

of  the  husband  to  earn  money  for 


868  PERMANENT   ALIMONY.  [§  917. 

there  are  palliating  circumstances  in  favor  of  the  husband, 
or  where  the  wife  is  partly  in  fault.' 
§  917.  Allowance  where  the  husband  has  no  property. — . 

It  has  been  held  that  on  a  dissolution  of  the  marriage  the 
court  may  allow  the  wife  a  portion  of  the  husband's  income 
from  property,  but  if  he  has  no  jDroperty  the  court  cannot 
bind  his  future  earnings  and  savings.^  But  where  the  court 
is  empowered  to  exercise  a  liberal  discretion  in  making  a 
suitable  provision  for  the  maintenance  of  the  wife,  it  is  held 
that  alimony  may  be  awarded  where  the  husband  has  no 
personal  or  real  property.'  The  wife  must  be  placed  in  as 
good  a  position  as  she  was  before  marriage,  when  she  de- 
rived her  support  from  his  personal  exertions.  During  mar- 
riage the  obligation  of  support  continues  although  he  has 
no  property,  and  the  court  may  consider  his  income  from 
personal  services  as  well  as  from  any  other  resources.  And 
it  seems  that,  if  the  husband  is  temporarily  out  of  employ- 
ment, this  will  not  prevent  a  decree  for  alimony,  as  the  court 
may  consider  his  ability  to  earn  when  employment  is  found.* 
"Where  the  income  is  from  personal  labor,  the  court  should 
consider  the  health,  age  and  habits  of  the  parties,  their  man- 

iBeallu  Beall,  80  Ky.  675;  Severn  if,  upon  tke  divorce,  nothing  can 

V.  Severn,  7  Grant  Ch.  (U.  C.)  109.  be  given  to  her,  or  less  than  may 

2  In  this  case  the  statute  em-  be  suitable  to  her  rank  and  condi- 
povered  "  the  court  in  all  oases  of  tion  in  life,  by  reason  of  the  hus- 
divorce  to  decree  to  the  wife  so  band's  poverty,  it  is  her  misfortune, 
divorced  such  part  of  the  real  and  to  wliioh  she  must  submit."  Chen- 
personal  property  of  the  husband  ault  v.  Chenault,  37  Tenn.  247;  ap- 
as  the  court  shall  think  proper,  proved  in  Boggers  v.  Boggers,  65 
having  reference,  of  course,  to  all  Tenn.  299.  See,  also,  Feighly  v. 
those  considerations  which  prop-  Feighly,  7  Md.  537. 
erly  belong  to  the  determination  3  Canine  v.  Canine  (Ky.),  16  8.  W. 
of  the  question."  Upon  an  abso-  367;  Bailey  v.  Bailey,  21  Gratt.  43; 
lute  divorce  it  was  held  that  "  the  McCrocklin  v.  McCrocklin,  2  B. 
wife  can  have  no  claim  on  the  Mon.  372;  Miller  v.  Miller,  75  N.  C. 
future  earnings  or  acquisitions  of  70;  Muse  v.  Muse,  84  N.  C.  35; 
the  husband,  any  more  than  upon  Prince  v.  Prince,  1  Rich.  Eq.  282; 
his  protection,  society  or  other  Parlter  v.  Parker,  61  IlL  369. 
conjugal  rights  or  duty ;  he  is  alike '  <  Canine  v.  Canine  (Ky.),  16  S.  W. 
discharged  from  them  alL     And  367. 


§  918.]  PERMANENT   ALIMONY.  869 

ner  of  living,  and  estimate  what  the  -wife  will  need  for  her 
support  under  similar  circumstances  in  the  future.-  From 
this  estimated  amount  the  court  may  deduct  what  the  wife 
can  probably  earn  by  her  own  exertions,  and  the  result  will 
be  a  fair  allowance  for  her.  For  where  the  wife  has  been 
accustomed  to  labor,  her  earnings  may  be  considered  to  re- 
duce the  amount  taken  from  the  husband's  income.'  Other 
circumstances  may  be  taken  into  consideration  by  the  court, 
and  the  amount  thus  obtained  may  be  increased  according 
to  the  nature  of  the  husband's  misconduct,  or  diminished 
where  it  appears  that  she  is  not  free  from  fault.^ 

Where  the  permanent  allowance  must  be  paid  from  the 
earnings  of  the  husband,  a  sound  discretion  would  require 
the  court  to  make  such  allowance  payable  in  monthly  or 
quarterly  instalments,  and  the  decree  should  be  limited  to 
the  joint  lives  of  the  parties,  and  to  terminate  upon  the  mar- 
riage of  the  divorced  wife.  Otherwise  the  husband,  if  he 
marries  again,  may  find  it  impossible  to  support  the  second 
family  and  the  former  wife.'  Where  the  question  is  not 
settled,  or  the  statute  is  silent  upon  the  power  to  revise  de- 
crees of  alimony,  the  decree  should  reserve  the  power  to 
revise  such  decree  from  time  to  time.^  This  form  of  decree 
is  absolutely  necessary  to  make  an  equitable  allowance  to 
the  wife  where  the  husband  has  no  property.  And  to  over- 
look any  of  these  considerations  is  perhaps  an  abuse  of  dis- 
cretion. 

§  918.  Pleading  and  practice. —  There  is  no  uniform 
practice  in  making  and  hearing  the  application  for  perma- 
nent alimony  or  allowance.  Sometimes  the  application  is  a 
part  of  the  petition  for  divorce ;  and  this  method  has  some 
advantages  where  an  injunction  is  prayed  for,  or  relief  is 

iMcGrady  v.  MoGrady,  48  Mo.  enough  where    the  parties  were 

Ap.  668;  Abey  v.  Abey,  33  la.  575;  equally  at  fault  for  the   existing 

Farley  v.  Farley,  30  la.  353;  Burs-  state  of  aiiairs. 

ler  V.  Bursler,  5  Pick.  427.  ^  See    situation    of    husband   in 

2  In  Eussell  v.  Russell,  75  Mich..  Spencer,  In  re,  83  Cal.  110,  83  Cal. 

573,  it  was  held  that  an  allowance  460. 

of  two  dollars  per  week  was  large  ^  Green  v.  Green,  13  S.  W.  945. 


8T0  PERMANENT   ALIMONY.  [§  918. 

sought  against  a  fraudulent  conveyance.  Mr.  Bishop  rec- 
ommends the  ecclesiastical  practice,  where  the  application  is 
strictly  ancillary,  and  no  mention  is  made  of  alimony  in  the 
petition  and  other  pleadings  for  divorce.  But  the  procedure 
must  conform  to  the  local  practice,  of  course.  In  Wisconsin 
the  practice  is  to  join  the  application  for  alimony  in  the  pe- 
tition for  divorce.  This  is  considered  the  better  practice, 
because  "it  accords  with  the  analogies  of  equity  practice, 
by  including  in  the  same  bill  all  the  allegations  of  fact  upon 
which  it  may  be  necessary  for  the  court  to  adjudicate  for 
the  purpose  of  a  complete  determination  of  all  matters  in- 
volved in  this  action." '  In  the  code  states  the  general 
practice  is  to  include  the  application  in  the  petition  or  the 
answer.  And  this  is  undoubtedly  the  better  practice  where 
ancillary  relief  is  sought  against  third  persons  or  speciiio 
property  belonging  to  the  husband.^  The  decree  for  ali- 
mony may  be  based  upon  a  motion,^  or  upon  a  petition  in 
an  ancillary  proceeding.*  But  the  decree  must  be  based 
upon  some  allegation  in  the  pleadings  or  the  record;  other- 
wise such  decree  is  void.^ 

1  Damon  v.  Damon,  28  Wis.  510.  *Bray  v.  Bray,  3  Halst.  Ch.  27; 
See,  also,  Prescott  v.  Prescott;  59  Culver  v.  Culver,  8  B.  Mon.  128; 
Me.  146.  Longfellow  v.  Longfellow,  Clarke, 

2  See  Folerton  u  Williard,  30  O.  34A. 

St.  579;  Remington  v.  Supr.  Ct,  G9        5  Cummings  v.  Cummings,  75  Cal. 

Cal.  ,633;  Wilkinson  v.  Elliott,  43  435;  Bender  v.  Bender,  14  Or.  355; 

Kan.  590,  23  P.  614;  Busenbark  u  Jordan  v.  Jordan,   53  Mich.   552; 

Busenbark,  88  Kan.  572;   Sapp  v.  Clayton  v.  Clayton,  1  Ashm.  (Pa,) 

Wightman,  103  111.  150;  Wharton  53;  Chandler  v.  Chandler,  13  Ind. 

V.  Wharton,  57  la.  696;  Powell  v.  492.    In  Iowa  the  rule  of  ordinary 

Campbell,  20  Nev.  282;  Bamfordv.  judgments  is  held  to  be  inappli- 

BamfOrd,   4  Or.   30;   Harshberger  cable  to  a  decree  for  alimony;  for 

V.  Harshberger,  26  la.  503;  Hender-  that  is  an  incident  to  the  divorce, 

son  V.   Henderson,    110    Ind.   816.  and  the  court  is  given  full  power 

Otherwise    the  wife  would  have  to  make   any  orders    concerning 

no    relief   against   third  persons,  permanent  alimony  and  custody 

O'Brien  v.  Putney,  55  la.  292;  Scott  of  children,  although  there  is  no 

V.  Rogers,  77  la.  482,  43  N.  W.  377.  application  for  such  orders.  Zuver 

3  Becker  u  Becker,  15  111.  Ap.  247;  u  Zuver,  36  la.  190;  McEwen  u 
Roseberry  u  Eoseberry,  17  Ga.  139;  McEwen,  26  la.  375;  Darrow  V. 
Kirch  V.  Kirch,  18  N.  Y.  Supp.  447.  Darrow,  48  la.  411. 


§  918.]  PERMANENT   ALIMONY.  871 

"Where  the  application  for  alimony  is  made  in  the  peti- 
tion, the  defendant  may  make  any  such  answer  as  he  desires 
in  the  answer  to  the  petition ; '  or,  if  the  application  is  by 
motion,  affidavits  may  be  filed  by  the  husband  showing  the 
extent  of  his  property.  The  showing  made  by  the  husband 
maybe  contradicted  by,  counter-affidavits  or  by  the  intro- 
duction of  any  competent  evidence  on  the  hearing  before 
the  court  or  the  officer  to  whom  the  question  is  referred. 

1  Stearns  u  Stearns  (Vt.),  38  A.  875. 


THE  DECREE  FOR  ALIMONY. 


§  930. 

In  general 

§  936. 

931. 

Whether  in  gross  or  in  in- 

937. 

stalments. 

938. 

933. 

"When  the    permanent  al- 

lowance terminates. 

939. 

933. 

"Whether  marriage  of  the 

940. 

divorced  wife  terminates 

941. 

her  alimony. 

933a 

Revision  of  decree  for  ali- 
mony. 

943. 

934. 

"When  permanent  alimony 
wiU  be  revised. 

943 

935. 

Alimony  where  there  is  no 
persohal  service. 

Alimony  after  divorce. 

"When  alimony  is  exempt. 

The  wife  as  a  creditor  of 
the  husband. 

Attachment  for  contempt. 

"Writ  tie  exeat  regno. 

Other  means  of  enforcing 
payment. 

Suit  on  foreign  decree  for 
alimony. 

Suit  on  decree  for  ali- 
mony rendered  in  an- 
other state. 


§  930.  In  general. —  Tlie  decree  for  alimony  may  form 
part  of  the  decree  of  divorce  or  may  be  entered  as  a  sepa- 
rate decree.  The  terms  of  the  decree  are  fixed  by  the  court 
in  the  exercise  of  a  sound  discretion,  and  should  state  when 
the  alimony  commences  and  upon  what  events  it  will  termi- 
nate. Ordinarily  permanent  alimony  should  date  from  the 
day  it  was  allowed ;  but  an  earlier  date  may  be  fixed  when 
the  litigation  has  been  protracted  by  the  husband.  "Where 
the  suit  has  been  delayed  for  several  years  it  is  not  an  abuse 
of  discretion  to  date  the  decree  from  the  commencement  of 
the  action.'  If  the  decree  is  based  upon  a  decree  a  mensa, 
or  is  granted  as  a  part  of  the  personal  earnings  of  the  hus- 
band where  he  has  no  property,  it  should  terminate  upon 
the  death  of  either  party.  Where  an  absolute  divorce  is 
rendered  and  the  husband  has  no  property,  the  decree  should 
terminate  upon  the  marriage  of  the  wife,  otherwise  the  hus- 

1  Forrest  v.  Forrest,  25  N.  Y.  501;  McCarthy  v.  McCarthy  (N.  Y.),  38 
N.  E.  388. 


§  931.J  THE   DEOEEE   FOE   ALIMONY.  873 

band  will  be  compelled  to  support  the  wife  of  another.  If 
the  decree  contains,  as  one  of  its  elements,  the  compensation 
to  the  wife  for  her  contributions  to  the  common  fund,  or 
the  amount  is  influenced  by  the  amount  of  property  which 
she  brought  to  the  husband  at  marriage,  or  is  in  part  a  com- 
pensation for  her  loss  of  dower,  the  decree  should  not  termi- 
nate upon  the  death  of  the  wife.  The  husband  should  be 
held  to  pay  the  amount  to  her  estate.  ITor,  in  such  case, 
should  the  marriage  of  the  wife  affect  her  right  to  alimony 
any  more  than  the  marriage  of  an  ordinary  creditor  should 
relieve  his  debtor.  The  allowance  is  not  in  such  case  a  mere 
maintenance,  to  be  withdrawn  whenever  the  wife  obtains 
maintenance  elsewhere.  The  decree  should  make  a  separate 
allowance  for  the  wife  and  each  child.  Many  perplexing 
questions  concerning  the  allowance  may  be  avoided  by  defi- 
nite provisions  in  the  decree  for  certain  contingencies. 

§  931.  Whether  in  gross  or  instalments. —  The  per- 
manent alimony  granted  by  the  ecclesiastical  courts  was 
payable  in  annual  instalments.  This  form  of  alimony  was 
admirably  suited  for  the  circumstances  of  the  parties  and 
their  legal  and  social  status  at  that  time.  The  decree  from 
bed  and  board  was  onlj'^  a  temporary  permission  to  live 
apart  until  the  parties  were  reconciled  and  the  past  con- 
doned. 'So  property  rights  were  disturbed  or  forfeited  by 
such  a  decree.  Under  such  circumstances  the  law  wisely 
provided  that  the  alimony  should  be  payable  in  instalments 
which  could  terminate  on  reconciliation.^ 

1  See  Hyde  v.  Hyde,  4  Swab.  &  T.  erty  payable  in  three  annual  pay- 

80;  Wilson  v.  Wilson,  3  Hag.  Ec.  ments  where  a  decree  of  separation 

329;  De  Blaquiere  v.  De  Blaquiere,  is    granted.     The    allowance  was 

3  Hag.   Ec.   322;    Wallingsford  v.  changed  to  §15  per  month.   Sleeper 

Wallingsford,   6    Har.   &    J.    485;  v.  Sleeper,  65  Hun,  454. 

Haggerty  v.  Haggerty,  11  Grant's  The  practice  of  granting  alimony 

Ch.   562;    Maguire    V.  Maguire,   7  on  a  decree  of  separation  has  been 

Dana,  181.  discontinued  by  some  of  the  courts 

In  New  York  it  is  held  an  abuse  of  New  York,  on  account  of  the 

of  discretion  to  award  one-third  of  present  laws  affording    a    better 

the  value  of  the  husband's  prop-  remedy.    Where  the  husband  fail^ 


874  THE   DECREE   TOE  ALIIIONT.  [§  &31. 

But  an  absolute  divorce,  dissolving  the  bonds  of  matri- 
mony, was  unknown  at  common  law.  It  places  the  parties 
in  a  position  essentially  different  from  a  decree  from  bed 
and  board.  The  parties  are  free  to  marry  others  or  to  be- 
come reconciled  to  each  other,  as  they  choose.  All  property 
rights  depending  on  the  marriage  are  terminated.  The  al- 
lowance granted  under  such  circumstances  must  be  a  restora- 
tion or  a  division  of  property  instead  of  a  temporary'  provision 
for  the  wife's  support.  Such  allowance  must  be  made  in 
contemplation  of  a  final  settlement  of  property  rights.  The 
situation  is  therefore  so  different  that  the  ecclesiastical  prac- 
tice is  not  always  followed  by  courts  having  the  power  to 
grant  absolute  divorce.  The  courts  of  England  may,  in 
granting  absolute  divorce,  allow  a  gross  sum  or  an  annual 
sum,  as  the  circumstances  seem  to  require.'  The  early  prac- 
tice in  our  country  seems  to  have  been  to  follow  the  En- 
glish precedents,  overlooking  the  fact  that  the  reasons  for 
the  allowance  after  absolute  divorce  might  be  different.^  At 
present  the  practice  appears  to  be  that  the  kind  of  alimony 
awarded  is  governed  by  the  circumstances  of  the  case.  It 
is  clear  that  the  power  conferred  by  the  statute,  to  make 
"  such  order  "  concerning  the  "  allowance  "  or  "  alimony  and 
maintenance  "  as  from  the  circumstances  of  the  parties  and 
the  nature  of  the  case  shall  be  fit,  reasonable  and  just,  con- 
fers a  discretionary  power  upon  the  courts  to  award  either 
a  gross  sum  or  a  sum  payable  in  instalments.'    Where  the 

or  neglects  to  support  the  wife,  her  i  Jardine  v.  Jardine,  6  P.  D.  213; 
remedy  is  to  have  a  criminal  pro-  Medley  v.  Medley,  7  P.  D.  133. 
ceeding  commenced  against  him  2  Calame  v.  Calame,  35  N.  J.  Eq. 
in  the  police  court,  where  an  order  548;  Purcell  v.  Purcell,  4  Hen.  & 
for  support  may  be  granted  and  M.  507;  Eussel  v.  Russel,  4  Greene 
can  be  enforced  by  numerous  offi-  (la.),  36;  Grain  %\  Gavana,  36  Barb, 
cers  of  the  court  by  proceedings  of  410,  63  Barb.  109;  Almond  v.  Al- 
a  summary  character.  Patton  v.  mend,  \  Rand.  (Va.)  663. 
Patton,  13  Misc.  736,  citjng  Euopp  3  Galame  u  Galame,  34  N.  J.  Eq. 
u  Euopp,  N.  Y.  L.  J.  (March,  1894).  440;  Plaster  v.  Plaster,  47  IlL  290; 
Where  this  remedy  may  be  had,  the  Barrows  v.  Purple,  107  Mass.  438, 
decree  of  separation  will  become  and  cases  cited;  Eobinsori  v.  Rob- 
useless  as  a  remedy.                     •  inson,  79  Gal.  511,  and  cases  cited; 


§■  931.J  THE   DECEEE    FOE   ALIMONY.  875 

statute  requires  alimony  to  be  in  gross  the  decree  may 
award  a  gross  sum  payable  in  instalments.*  Such  decree 
is  in  the  nature  of  final  settlement,  and  it  would  seem  to 
make  the  husband  a  creditor  of  the  wife,  and  would  not  be 
subject  to  revision.  In  the  event  of  the  death  or  marriage 
of  one  or  both  parties  the  decree  would  not  be  terminated. 
"Where  the  court  has  discretionary  power  to  decree  ali- 
mony in  a  gross  sum,  it  was  held  error  to  do  so  where  the 
wife  apparently  married  the  husband  for  his  wealth,  he  hav- 
ing accumulated  his  property  before  the  marriage  and  re- 
ceived no  property  from  the  wife.  In  such  case  it  was  more 
just  and  reasonable  that  the  allowance  should  be  paid  in 
instalments  in  order  that  the  amount  may  be  increased  or 
diminished  by  the  court,  or  withdrawn  in  case  she  should 
misconduct  herself.  The  circumstances  of  the  husband  would, 
in  this  case,  make  it  easy  for  him  to  secure  the  allowance.^ 
In  the  ordinary  case,  however,  it  is  believed  that  a  gross 
sum  OB  a  specific  portion  of  the  property  will  prove  more 
practical-and  satisfactory.'  It  will  terminate  the  litigation. 
The  decree  will  not  complicate  the  husband's  property  with 
a  lien  which  is  uncertain  in  amount.  If  a  gross  sum  is 
awarded  it  may  be  secured  by  real  estate,  by  a  lien  or  mort- 
gage for  a  specific  amount.  The  wife  then  has  a  specific 
income  that  cannot  be  terminated  by  the  refusal  or  neglect 
of  the  husband.  The  amount  is  safe  from  any  act  of  the 
husband,  and  cannot  be  defeated  by  his  poverty  or  bank- 
ruptcy. The  parties  in  a  divorce  suit  are  generally  much 
embittered  and  estranged,  and  apt  to  consider  any  decree 
unjust.  If  the  allowance  is  in  instalments  the  husband  is 
goaded  by  the  apparent  injustice  of  supporting  a  woman  for 

Piatt  V.  Piatt,  9  Ohio,  37;  Jeter  v.  v.  Winemiller,  114  Ind.  540;  Will- 
Jeter,  36  Ala.  391;  Call  v.  Call,  65  iams  t;.  Williams  (S.D.),61  N.W.38. 
Me.  407;  Crews  v.  Mooney,  74  Mo.  ilfert  v.  Ifert,  29  Ind.  473. 
26.    See,  also,  statutes  in  Taylor  v.  ^  Von  Glahn  v.  Von  Glalin,  46 
Gladwin,  46  Mich.   332;    Dinet   v.  111.  134. 

Eigenman,  80  111.   274;  Halleman  SMcGechie  v.  MoGechie  (Neb.), 

r,Halleman,65Ga.  476;WinemiJler  61  N.  W.  692;  Cochran  u  Cochran 

(Neb.),  60  N.  W.  943. 


876  THE   DECEEB   FOE  ALIMONY.  [§  931. 

whom  he  entertains  the  deepest  hatred ;  a  woman  who  is  either 
a  legal  relict  or  the  wife  of  another.  Under  such  circum- 
stances the  wife  will  probably  be  put  to  great  expense  and 
annoyance  to  recover  each  instalment  as  it  becomes  due.' 

There  are  two  forms  of  decrees  payable  in  instalments. 
One  is  a  decree  for  a  certain  gross  sum,  which,  for  the  con- 
venience of  the  husband,  is  made  payable  in  instalments. 
It  is  in  effect  a  mortgage  securing  notes  which  mature  at 
certain  intervals.  The  other  form  is  a  decree  for  a  certain 
sam  payable  each  month  or  other  period  of  time.  Where 
the  latter  form  of  decree  is  made  a  lien  upon  real  estate  of 
the  husband  it  becomes  an  absolute  bar  to  any  conveyance 
by  him.  Ho  purchaser  could  be  found  for  a  title  incum- 
bered for  an  amount  which  is  indefinite  and  subject  to  be 
increased  upon  the  further  order  of  the  court.  For  the  same 
reason  no  mortgage  or  other  security  could  be  negotiated 
by  the  husband,  as  the  prior  incumbrance  is  uncertain  in 
amount.  This  form  of  decree  is  not "  suited  to  our  present 
system  of  laws  relating  to  real  estate,  the  policy  of  which 
is  to  render  titles  perfect,  and  subject  only  to  liens  definite 
in  amount  and  duration.  On  the  other  hand,  the  decree  for 
a  definite  sum  is  not  an  intolerable  burden  upon  the  hus- 
band. He  may  sell  his  real  estate  subject  to  such  lien.  He 
may  negotiate  a  mortgage  subject  to  it.  Or  he  may  pay 
the  entire  sum  and  thereby  remove  the  lien  from  his  real 
estate. 

In  many  states  the  practice  appears  to  be  to  require  the 
husband  to  execute  ar  mortgage  for  the  gross  sum  allowed 
by  the  court.  Experience  has  shown  that  such  securities 
are  not  as  desirable  as  the  decree  for  a  gross  sum,  as  the  wife 
may  be  compelled  to  resort  to  the  expense  and  delay  of  a 
foreclosure.  The  decree  for  a  gross  sum  has  the  advan- 
tage that,  on  the  failure  to  pay  any  amount  due,  execution 
may  issue  at  once.  The  permanent  allowance  being  in  the 
nature  of  a  final  settlement,  payable  in  instalments,  is  a 

1  WilUams  v.  Williams,  36  Wis.  362;  McClung  v.  McClung,  40  Mich.  493. 


§  932.]  THE   DECREE   FOE  ALIMONY.  877 

fixed  debt,  and  each  instalment  draws  interest  from  the 
time  it  becomes  due.^ 
§  932.  When  the  permanent  allowance  terminates.— 

"When  the  alimony  is  payable  in  instalments  the  decree 
should  specify  the  period  during  which  it  is  to  be  paid,  and 
the  time  when  it  will  terminate.  It  should  also  terminate 
by  its  terms  upon  such  contingencies  as  the  marriage  of  the 
wife  or  the  death  of  either  party.  The  failure  to  fix  such 
period  is  an  error  and  perhaps  an  abuse  of  discretion,  bat 
does  not  render  the  decree  void/^ 

Perplexing  questions  will  arise  where  no  time  is  fixed  by 
the  decree.  If  the  alimony  is  allowed  on  a  decree  of  sepa- 
ration it  is  clear  that  it  will  terminate  on  the  death  of  either 
party.  But  if  the  allowance  is  made  on  a  decree  of  absolute 
divorce,  the  only  rule  that  can  be  laid  down  is  that  the  nat- 
ure of  the  decree  will  govern.  As  already  stated,'  there 
are  two  kinds  of  decrees  of  alimony  which  may  be  made 
payable  in  instalments.  One  is  a  gross  sum  of  money  in 
restitution  of  the  wife's  separate  property,  a  settlement  of 
all  property  rights  and  other  elements  which  may  influence 
the  court  in  determining  the  amount  which  may  be  reason- 
able under  all  the  circumstances  of  the  parties.  This  form 
is  granted  only  where  the  parties  are  absolutely  divorced, 
and  is  made  payable  in  instalments  for  the  convenience  of 
the  husband.  The  other  form  of  decree  is  a  mere  mainte- 
nance granted  to  the  wife,  payable  until  the  reconciliation 
of  the  parties,  or  while  they  are  separated.  It  is  in  form 
and  effect  similar  to  a  pension,  and  must  be  distinguished 
from  the  former  decree,  which  resembles  a  decree  rendered 

1  Lancaster  v.  Elliott,  55  Mo.  Ap.  ant  refused  to  pay  the  same  be- 

249,  43  Mo.  Ap.   503;  Winemiller  cause  indefinite  and  therefore  roid. 

V.  Winemiller,  114  Ind.  540, 17  N.  E.  But  it  was  held  to  be  sufficiently 

133.  certain,  and  contemplated  the  pay- 

'Casteel  v.  Casteel,  38  Ark.  478.  ment  of  alimony  during  the  life  of 

In  Ex  parte  Hart,  94  CaL  354,  the  the  wife  or  until  modified  by  the 

decree  for  alimony  after  an  abso-  court, 

lute  decree  of  divorce  contained  '  §  931. 
no  definite  limit,  and  the  defend- 


878  THE    DECEEE    FOE   ALIMONY.  [§  932. 

on  a  dissolution  of  a  partnership.  This  distinction  is  vital 
to  the  question  when  a  decree  for  permanent  alimony  ren- 
dered on  an  absolute  decree  of  divorce  will  terminate.  In 
a  recent  and  well-considered  case  this  distinction  is  pointed 
out.  "The  rule,"  it  was  said,  "which  prevailed  at  common 
law,  that  the  death  of  the  husband  necessarily  and  of  itself 
put  an  end  to  the  payment  of  alimony,  was  applicable  only 
in  divorces  a  mensa  et  thoro,  which  did  not  have  the  eifect 
of  finally  and  forever  terminating  the  marriage  relation,  but 
operated  as  mere  temporary  separation,  leaving  all  the  other 
marital  rights  and  obligations  in  full  force.  In  the  case  of 
such  divorces,  the  separation  was  liable  to  end  at  any  time 
by  the  reconciliation  of  the  parties ;  and  even  if  no  reconcil- 
iation took  place,  the  marriage  continued  to  exist  until  it 
was  dissolved  by  death.  But  where,  as  under  the  statute 
of  Illinois,  alimony  is  awarded  upon  a.  decree  of  absolute 
divorce,  which  at  once  puts  an  end  to  the  marriage  relation, 
the  right  of  the  divorced  wife  to  have  the  alimony  contin- 
ued to  her  out  of  the  estate  of  her  divorced  husband  will 
depend  upon  the  nature  of  the  terms  of  the  decree  allowing 
alimony.' 

So  far  as  the  alimony  allowed  on  a  decree  of  separation 
is  concerned  it  is  clear  that  it  terminates  on  the  death  of 
either  party.  The  reason  for  this  is  well  stated  by  the  court. 
"  Alimony,"  said  Eobertson,  C.  J.,  "  is  the  maintenance  se- 
cured by  judicial  authority,  during  coverture,  or  until  recon- 
ciliation. There  being  no  divorce  a  mnoulo,  it  cannot  be 
right  to  decree  any  allowance  for  the  term  of  the  wife's  life. 
If  she  surviA'e  her  husband  she  would  also  be  entitled  to 
dower.  At  his  death  the  law  provides  for  her ;  and  being 
then  sui  Juris,  there  is  no  necessity  for  a  decree  for  main- 
tenance, nor  any  suitableness  or  propriety  in  such  a  decree."  ^ 

'Storey  v.  Storey,  13&I1L  608,  re-  Field  v.  Field,  15  Ab.  N.  Cas.  434; 

versing  33  IlL  Ap.  558.  Harte,  Ex  parte,  94  Cal.  254;  Knapp 

2  Lookridge  v.  Lockridge,  3  Dana  v.  Knapp,  184  Mass.  355;  Francis  v. 

(Ky,),  28;  Wallingford  v.  Walling-  Francis,  31  Gratt.  283;  Casteel  v. 

ford,  6  Har.  &  J.  485.    See,  also,  Casteel,  38  Ark.  478;  Burr  v.  Burr, 


§  932.]  THE   DECREE   FOE   ALIMONY.  879 

Where  no  property  rights  were  included  in  the  decree  for 
alimony  and  no  sum  can  be  allowed  in  lieu  of  dower,  it  is 
clear  that  the  alimony  allowed  on  an  absolute  decree  of  di- 
vorce will  terminate  on  the  death  of  either  party,  if  the  de- 
cree is  otherwise  in  form  and  effect  substantially  the  same 
as  the  alimony  or  maintenance  allowed  by  the  ecclesiastical 
courts.*  Thus  in  those  states  where  the  absolute  divorce 
does  not  teraninate  the  right  of  dower  and  the  vested  rights 
of  the  parties  are  expressly  reserved  by  statute,  the  decree 
of  alimony  is  not  in  lieu  of  property  rights 'of  the  wife,  but, 
is  in  effect  a  decree  for  maintenance  and  terminates  upon 
the  death  of  either  party.  "  If  this  were  not  true,"  observes 
Van  Brunt,  J".,  "  we  have  this  anomaly  presented  to  us :  that 
although  the  amount  of  permanent  alimony  depends  very 
largely,  in  most  cases,  upon  the  income  of  the  husband,  de- 
rived from  his  personal  efforts,  that  yet,  when  this  source  of 
revenue  is  entirely  withdrawn,  his  estate  is  liable  for  the 
same  amount  of  alimony,  although,  if  that  had  been  the  only 
source  of  income,  not  one-tenth  part  of  the  alimony  granted 
would  ever  have  been  allowed." 

"  We  are  also  confronted,  with  this  peculiar  condition  of 
affairs:  if  the  husband  should  happen,  during  coverture,  to 
have  been  possessed  of  real  estate,  the  income  of  the  former 
wife  would  be  greater,  the  husband  being  dead,  than  if  he 

10  Paige,  20,  7  Hill,  207 ;  Smith  v.  same  f orm^  as  the  alimony  allowed 

Smith,   1   Root  (Conn.,  1792),   349;  on  a  decree  for  separation  and  was 

Guenther's    Appeal,  40  Wis.   115.  considered  to  be  the  same.     The 

See  contra,  Sloan  v.  Cox,  4  Hay-  court  said:  "  As  alimony  out  of  the 

wood  (Tenn.),  75,  imder  a  statute  husband's  property  is  a  provision 

now  repealed.  for  the  support  of  the  wife  by  him, 

1  For  nature  and  effect  of  the  de-  the  obligation  to  pay  it  in  the  f ut- 
eres for  alimony  on  a  decree  of  ure  necessarily  ceases  with  the 
separation,  see  §  902.  death  of  the  husband ;  but  amounts 

In  Knapp  v.  Knapp,  134  Mass.  already  due  at  the  time  of  his  death 

353,  it  was  held  that  the  wife  could  are  in  the  nature  of  a  debt  then 

recover  arrears  of  permanent  ali-  existing,  and  are  payable  out  of  his 

mony  due  at  the  time  of  the  death  estate."    Citing  Smith  v.  Smith,  1 

of  the  husband  but  no  later  instal-  Root,  349;  Wren  v.  Moss,  1  Gilman, 

rrients.    The    decree   was   in  the  560. 


880  THE   DEOEEE   FOE   ALIMONY,  [§  932. 

were  alive,  as  she  would  not  only  be  entitled  to  receive  the 
alimony  granted  by  the  court,  but  also  to  recover  her  dower 
out  of  his  real  estate."  ^ 

But  in  those  states  where  alimony  is  in  fact  a  decree  ad- 
justing and  settling  all  the  property  rights  of  the  wife,  it 
seems  clear  that  she  thereby  becomes  a  creditor  of  the  hus- 
band, and  the  death  or  marriage  of  one  or  both  parties  will 
not  affect  the  decree.  Thus,  in  Indiana,  where  the  decree 
must  conform  to  a  statute  requiring  the  alimony  to  be  in  a 
gross  sum  but  m'ay  be  made  payable  in  instalments,  it  is  held 
that  the  term  "alimony,"  as  used  in  the  statute,  "is  not 
the  alimony  of  the  common  law,  the  right  to  which  ceased 
to  exist  or  reverted  to-the  husband  on  the  death  of  the  wife, 
resulting  from  the  fact  that  the  marriage  relation  continued 
to  exist  until  her  death.  But  it  is  alimony  under,  and  the 
creature  of,  thfe  statiite,  given  upon  an  equitable  settlement 
between  the  parties  upon  the  dissolution  of  the  marriage 
and  of  all  the  relations  of  husband  and  wife  theretofore  ex- 
isting between  them.  The  reason  of  the  rule  at  common 
law  (that  permanent  alimony  terminated  on  the  death  of  the 
husband)  does  not  exist  under  the  statute,  and  the  rule  itself 
should  not  therefore  be  applied."  ^ 

'  Field  V.  Field,  15  Abb.  Pr.  434,  decree  was  for  a  gross  sum.    She 

66  How.  Pr,  346.  brought  an  action  of  debt  on  this 

2  Miller  v.  Clark,  28  Ind.  370.    In  decree  in  Illinois  and  attached  the 

this  case  the  wife  was  allowed  the  husband's   property.     Afterwards 

gross  sum  of  §1,200,  to  be  paid  in  the  husband   died.    It  was   held 

instalments  as  follows:  $300  in  six  that  the  action  would  lie,  and  that 

months,  $500  in  one  year,  and  §500  the  attachment  did  not  abate  upon 

in  two  years.    After  the  last  in-  the   death   of   the   husband,  but 

stalment  and  interest  became  due  might  be  revived  against  the  ad- 

the  wife  died,  and  it  -was  held  that  ministrator  of  the  husband's  estate. 
the  administrator  might  recover        In  Maxwell  v.  Sawyer  (Wis.),  63 

the  amount  due  for  the  benefit  of  N.  W.  383,  the  decree  of  alimony 

her  estate.    See  similar  case,  Dinet  rendered  on  an  absolute  divorce 

V.  Eigeman,  80  111.  375.  provided  for  the  payment  of  cer- 

In  Dow  V.  Blake,  148  III  76,  85  tain  sums  semi-annually  to  be  se- 

N.  E.  761,  the  wife  was  allowed  a  cured  by  a  mortgage  and  notes  for 

decree   of  alimony  in  Wisconsin  a  certain  sum.    On  the  death  of 

upon  her  release  of  dower.    The  the  husband  he  left  a  will  provid- 


§  932.]  THE   DECREE    FOE   ALIMONY.  881 

The  nature  of  the  alimony,  whether  a  gross  sum  in  lieu  of 
property  rights  or  an  order  for  the  maintenance,  must  be 
-established  by  competent  evidence.'  It  cannot  be  shown 
by  proof  of  an  oral  contemporaneous  agreement,  before  the 
entry  of  the  decree,  that  the  alimony  should  continue  during 
the  life  of  the  Avife.  The  terms  of  a  decree  cannot  be  af- 
fected or  contradicted  in  this  manner.^  In  a  recent  and 
well  considered  case  the  parties  had  entered  into  an  agree- 
ment concerning  alimony,  and  this  agreement  was  incorpo- 
rated into  the  decree,  which  recited  such  fact.  The  bond 
and  trust  deed  executed  to  secure  the  performance  of  the 
•decree  provided  that  the  "  heirs  and  assigns  "  of  the  husband 
were  entitled  to  the  possession  of  the  real  estate  until  de- 
fault was  made  "  by  him  or  them."  The  decree  recited  that 
the  sum  of  $2,000  per  annum  was  to  be  paid  to  the  wife  "  so 
long  as  she  may  be  and  remain  sole  and  unmarried."  It 
was  also  shown  that  the  husband  had  conveyed  the  same 
real  estate  in  trust,  and  bound  himself,  "  his  heirs,  executors, 
administrators  and  assigns,"  to  pay  the  instalments  due  on 
the  prior  trust  deed  securing  the  alimony.  In  consideration 
of  aU  of  these  circumstances  the  decree  was  construed  to  be 
in  lieu  of  property  rights,  and  was  not  terminated  by  the 
deatk  of  the  husband  as  in  the  case  of  a  mere  allowance.' 

It  seems  that  the  liberal  discretion  conferred  upon  the 
court  to  make  "  such  order  "  as  may  seem  just  and  equitable 
under  all  the  circumstances  gives  the  court  the  power,  on 
an  absolute  divorce,  to  allow  a  mere  maintenance  during  the 
life  of  the  wife.^  In  such  case  the  alimony  does  not  termi- 
nate on  the  death  of  the  husband  but  may  be  recovered 

ing  for  the  annual  payment  to  the  i  See  on  this  point  Olney  v.  Watts, 

wife  of  the  same  sum  during  her  43  Ohio,  499,  cited  in  next  section, 

natural  life.    It  was  held  that  the  ^  Maxwell  v.  Sawyer   (Wis.),   63 

decree  was  for  alimony  proper  and  N.  W.  383,  citing  Freeman  on  Judg- 

■not  a    division    of  property,   and  ments,  §  836. 

therefore    it    terminated    on   the  '  Storey  v.  Storey,  125  111.  608,  re- 
death  of  the  husband,  and  the  wife  versing  33  III.  Ap.  558. 
could  not  recover  both  the  alimony  *  Miller  v.  Miller,  64  Me.  484;  Burr 
-and  the  annuity  under  the  will  v.  Burr,  10  Paige,  30;  Lawton,  Pe- 
56 


882  THE   DECEEE   FOE   ALIMONY.  [§  933, 

from  his  estate.  It  is  held  that  such  decree  may  be  entered 
upon  the  agreement  of  the  parties,  and  does  not  terminate 
upon  the  death  of  the  husband.' 

§  933.  Whether  marriage  of  a  divorced  wife  terminates 
her  alimony. —  The  solution  of  this  question  depends  upon 
the  theory  of  the  allovTance  made  by  the  -court  upon  dis- 
solving the  marriage.  If  alimony  is  considered  a  sum  in  lieu 
of  dower,  a  compensation  and  a  payment  in  lieu  of  a  divis- 
ion of  property  acquired  by  joint  effort,  or  a  decree  for  a 
sum  brought  to  the  husband  at  marriage,  no  subsequent  con- 
duct of  the  wife  should  release  her  former  husband  who  has 
now  become  her  judgment  debtor.^  On  the  contrary,  if  the 
sum  awarded  is  regarded  as  a  kind  of  pension,  an  equivalent 
for  the  obligation  created  by  marriage  to  support  the  wife,, 
and  which  obligation  is  released  by  divorce,  then  it  would 
follow  that  when  the  divorced  wife  marries  another  her 
second  husband  assumes  the  obligation  of  support,  and  the 
pension  is  terminated.'  Or  if  the  second  husband  has  not 
sufficient  ability,  the  amount  may  be  reduced  if  she  marries 
again.*  Where  the  wife  received  a  large  portion  of  her  hus- 
band's property  as  alimony  and  also  a  decree  for  a  monthly 
allowance,  the  allowance  will  be  cut  off  on  her  marriage  to- 
another.'  The  two  theories  of  alimony  are  not  directly  in 
conflict.  The  facts  of  each  case  may  show  that  the  court 
acted  upon  one  theory  or  the  other.  '  For  instance,  if  the 
husband  and  wife  had  no  property  at  marriage  and  when 
the  divorce  was  rendered,  the  allowance  may  have  been 
made  as  a  pension  in  lieu  of  the  support  which  the  husband' 

titioner,  13  R.  I.  310;    Smythe  v.        3  Stillman  «.  Stillman,  99  111.  196, 

Banks,  73  Ga.  303;  Ex  parte  ^in-  reversing  7  111.  Ap.  534;  Bowman 

ter,  94  Cal.  254.  v.  Worthington,  34  Ark.  533.    As- 

1  Storey  u'  Storey,  supra;  Strat-  to  this  theory,  consult  Sidney  v. 
ton  V.  Statton,  77  Me.  373;  Carson  Sidney,  4  Swab.  &  T.  178;  Fisher  v. 
V.  Murray,  3  Paige,  483;  O'Hagan  Fisher,  3  Swab.  &  T.  411. 

V.  O'Hagan's  Adm.,  4  la.  509;  Lock-  ^  Albee  v.  Wyman,  10  Gray,  333; 

wood  V.  Krum,  34  O.  St.  3.  King  v.  King,  38  O.  St.  370. 

2  See,  also.  Shepherd  v.  Shepherd,  ^Bankston  v.  Bankston,  37  Miss> 
1  Hun,  340.  693. 


§  933.]  THE   DECREE    FOE   ALIMONY.  883 

■n^as  obliged  to'render  under  the  marriage  contract.  Or,  sup- 
pose the  husband  received  a  large  sum  of  money  from  the 
wife  at  marriage,  and  on  his  obtaining  divorce  from  her  the 
court  found  it  equitable  that  part  of  the  money  be  restored 
to  her  in  instalments  as  alimony.  In  such  case  the  remar- 
riage of  the  Avife  should  not  impair  the  decree.  This  dis- 
tinction is  made  in  an  Ohio  case,  where  the  court,  on  an 
application  to  vacate  a  decree  of  alimony  on  account  of  the 
marriage  of  the  divorced  wife,  remanded  the  action  for  a 
new  trial,  and  suggested  that  if  it  should  "  appear  that  the 
former  decree,  instead  of  being  in  the  nature  of  alimony  pay- 
able in  instalments  for  the  support  of  the  wife,  was  in  the 
nature  of  a  permanent  division  of  the  husband's  property, 
and  that  the  parties  fixed  the  same  by  their  agreement  or 
consent,  this,  if  alleged  and  proved,  may  furnish  a  complete 
defense." '  Where  the  alimony  awarded  to  the  wife  con- 
sisted of  one-half  the  personal  and  the  use  of  one-half  of 
the  realty  for  life,  the  remarriage  of  the  wife  will  not  ter- 
minate the  decree,  and  such  fact  is  not  a  ground  for  modi- 
fying it.2 

Much  of  the  confusion  on  this  question  is  caused  by  the 
attempt  to  denote  by  the  term  "alimony  "  all  the  various 
elements  and  property  rights  Avhich  are  merged  into  one  de- 
cree. And  j'et  it  is  believed  that  where  the  courts  are  per- 
mitted by  statute  to  revise  decrees  of  alimony  from  time  to 
time,  the  facts  and  circumstances  which  influenced  the  court 
in  making  the  allowance  may  be  proved,  and  the  alimony 
may  be  terminated  or  not  according  to  the  circumstances. 
"Where  the  decree  of  alimony  is  held  to  be  a  vested  right, 
not  subject  to  revision,  the  subsequent  marriage  of  the  di- 
vorced wife  will  not  affect  the  decree. 

Where  the  husband  has  no  property,  the  court  frequently 
provides  for  the  support  of  the  wife  out  of  his  earnings  by 
a  decree  containing  no  provision  for  its  termination  on  the 
marriage  of  the  wife.  It  may  happen  that  both  parties 
may  marry  again,  in  which  event  the  former  husband  has 

1  Olney  v.  Watts,  43  Ohio,  499.         2  Sammis  v.  Merlbury,  14  R.  1. 214 


884:  THE   DECREE   FOE   ALIMONY.         .  [§  933a. 

two  to  support.  If  his  earnings  are  inadequate  and  he  fails 
to  pay  the  alimony,  he  may  be  thrown  in  jail,  where  he  will 
be  unable  to  support  either  of  them.  The  supreme  court  of 
California  has  characterized  this  as  "  an  anomalous  condition 
of  domestic  affairs  which  requires  a  man  ...  to  sup- 
port a  legal  relict,  who  is  not  only  matrimonially  dead  to 
him  but  is  perhaps  married  to  another,  who  is  unwilling  or 
unable  to  support  her." '  The  difficulty  in  such  cases  may 
be  avoided  by  limiting  the  decree  for  alimony  by  such 
phrases  as,  "  until  she  marries  again,"  or  "  so  long  as  she  re- 
mains unmarried."  The  power  of  our  courts  to  make  this 
provision  is  unquestioned.  Such  provision  is  not  void  as 
being  in  restraint  of  marriage.^  Under  the  English  divorce 
act  the  court  may,  at  its  discretion,  order  the  payment  of 
alimony  during  the  hfe  of  the  wife,  or  so  long  as  she  re- 
mains unmarried.'  But  such  clause  is  not  added  to  the 
decree  where  the  object  of  the  decree  is  to  deprive  the  hus- 
band of  his  interest  in  the  wife's  property  and  to  restore  her 
property  and  her  own  income.* 

§  933a.  Revision  of  decree  of  alimony. —  The  permanent 
alimony  of  the  common  law  was  a  form  of  separate  main- 
tenance for  the  Avife.  No  absolute  divorce  was  granted, 
but  the  decree  was  for  separation.  The  marriage  relation 
continued,  and  the  whole  proceeding  looked  forward  to  a 
reconciliation  and  reunion  of  the  parties.  Under  such  cir- 
cumstances the  husband's  duty  of  support  remained,  and  the 
amount  which  he  should  contribute  varied  according  to  his 
means  and  the  needs  of  the  wife.  In  an  early  case  it  was 
held  by  Dr.  Lushington  that,  "  where  there  is  a  material 
alteration  of  circumstances,  a  change  in  the  rate  of  alimony 
may  be  made.     If  the  faculties  are  improved,  the  wife's 

1  Spencer,  In  re,  83  Cal.  460,  83  wynd,  1  P.  D.  39;  Harrison  v.  Har- 

Cal.  110.  rison,  13  P.  D.  130;  Hart  v.  Hart, 

2Stillman  v.  Stillman,  99  111.  196.  18  Ch.  D.  670;  Corbett  v.  Corbett, 

sSeeListeruLister,  14P.D.  175,  13  P.  D.  136,  14  P:  D.  7. 

15  P.  D.  4,  citing  Sidney  v.  Sidney,  *  Gladstone  v.  Gladstone,  1  P.  D. 

4  Swab.  &  T.  178;  Medley  v.  Med-  443. 

ley,  7  P.  D.  133;  Chetwynd  v.  Cbet- 


§  933a.]  THE    DECEEE    FOE    ALIMONY.  885 

allowance  ought  to  be  increased;  and  if  the  husband  is 
lajMics  facuUatilms,  the  wife's  allowance  ought  to  be  re- 
duced." 1 

But  under  our  statutory  divorce  the  marriage  is  dissolved 
and  the  husband  and  wife  sustain  no  relation  towards  each 
other.  The  door  of  reconciliation  is  no  longer  open.  The 
alimony  allowed  to  the  wife  is  a  sum  in  lieu  of  dower  and 
as  compensation  for  the  ill  treatment  she  received.  The  wife 
is  a  judgment  creditor  of  the  husband,  and  has  no  interest 
in  his  financial  successes.  If  he  inherits  wealth,  she  should 
not  be  entitled  to  an  additional  allowance.  If  he  fails  in 
business,  she  will  suffer  with  other  creditors  unless  her  claim 
is  secured.  The  situation  of  the  parties  is  novel  to  the  com- 
mon law :  the  allowance  to  the  wife  is  not  in  all  respects  ali- 
mony, and  neither  the  rule  nor  the  reason  of  the  common 
law  is  applicable.  The  failure  to  make  this  distinction  has 
led  to  much  confusion  in  our  statutes  and  decisions.  Where 
the  distinction  has  been  brought  to  the  attention  of  our 
courts,  it  has  been  held  that  the  rule  that  a  decree  of  ali- 
mony is  subject  to  change  at  any  time  does  not  apply  to 
decrees  rendered  when  absolute  divorces  are  granted.^    And 

1  De  Blaquiere  v.  De  Blaquiere,  3  for  a  new  trial  has  elapsed.    Sam- 
Hag.  Ec.  332.    See,  also,  Lockrldge  mis  v.  Medbury,  14  R.  I.  214. 
V.  Lockridge.  3  B.  Mon.  538;  Rees        The  same  rule  applies  to  a,  decree 
V.  Rees,  3  Phillim.  387 ;  Kirkwall  v.  for  monthly  payments.    Sampson 
Kirkwall,  Poynter,  M.  &  D.  235;  v.  Sampson,  16  R.  I.  456,  16  A.  71. 
Neil  V.  Neil,  4  Hag.  Ec.  373.  Where  the  statute    confers  on 

^Kamp  V.  Kamp,  59  N.  Y.  213;  the  court  the  power  to  modify  the 

Kerr   v.   Kerr,   59  How.   Pr.   355 ;  decree  in  respect  to  the  guardian- 

Stratton  v.  Stratton,  73  Me.  481;  ship,  custody,  support  and  educa- 

Olney  v.  Watts,  43  O.  St.  499.    But  tion    of    the    children,   whenever 

see, cowfra,  McGeer.  McGee,  10  Ga.  circumstances   may  render    such 

477;  Rogers  v.  Vines,  6  Ired.  393;  change  necessary,  but  does  not  au- 

Lockridge  v.  Lockridge,  3  B.  Mon.  thorize  the  court  to  modify  the 

258.  decree  for  alimony,  a  decree  for 

Where  the  wife  is  awarded  one-  alimony  in  gross,  payable  in  in- 
half  the  personalty  and  one-half  of  stalments,  will  not  be  modified, 
the  rents  of  the  husband's  realty  Mitchell  v.  Mitchell,  20  Kan.  665. 
for  life,  the  decree  is  final,  and,  in  See  similar  construction  in  Samp- 
the  absence  of  statutory  authority,  son  v.  Sampson,  supra. 
cannot  be  modified  after  the  time 


886  THE   DECEEE   FOE   ALIMONY.  [§  933*. 

it  is  clear  that  such  a  decree  of  divorce  may  reserve  the 
allowance  for  future  consideration,  and  in  such  case  the  de- 
cree is  not  an  adjudication  of  a  matter  which  by  its  very 
terms  is  left  open  for  determination.^  In  'New  York,  and 
perhaps  other  states,  the  statutes  provide  for  a  change  in 
the  amount  of  alimony  where  the'  divore  is  from  bed  and 
board.'^  But  where  the  statutes  make  no  distinction  the 
courts  refuse  to  do  so,  and  will  revise  an  allowance  of  per- 
manent alimony  after  an  absolute  divorce.' 

The  practice  in  the  ecclesiastical  courts  is  not  to  be  fol- 
lowed in  such  cases.  For,  as  noted  in  one  case,  "  This  allow- 
ance to  the  wife  is  not  in  fact  alimony  in  the  sense  of  the 
ecclesiastical  law  of  England,  but  is  more  strictly  an  arrange- 
ment in  lieu  of  a  division  of  the  estate  of  the  parties,  so  as 
to  return  to  the  wife  her  just  portion  of  that  property  which 
mutually  belonged  to  both  during  the  marriage,  and  which 
the  labor  and  care  of  both  may  have  equally  contributed  to 
procure  and  preserve.  This  allowance  was  intended  to  sup- 
ply the  wife  with  the  means  of  commencing  life  anew  after 
her  expulsion  from  the  household  of  the  husband,  and  the 
withdrawal  of  his  liability  for  her  maintenance  and  support, 
and  place  her  above  actual  destitution.  Such  purpose  could 
best  be  accomplished  by  making  such  allowance  absolute  and 
permanent."  *  The  courts  are  authorized  to  revise  and  change 
decrees  of  alimony  by  express  statutes  in  some  of  the  states.' 

iFrieSuFries,  1  MacArthTir,391;  of  the  property  and  afterwards  va- 

Stahl  V.  Stahl,  13  N.  Y.  Supp.  855.  cated  the  decree  and  entered  a  de- 

But  see  CuUen  v.  CuUen,  55  N.  Y.  cree  for  alimony.    The  first  decree 

Superior  Ct.  346;  Beck  v.  Beck,  43  was  erroneous,  and  the  court  had 

N.  J.  Eq.  668.  a  right  to  correct  the  error  under 

2  Kerr  v.  Kerr,  9  Daly,  517 ;  Sim-  the  provisions  of  the  code  for  modi- 

onds  V.  Simonds,  10  N.  Y.  Supp.  fying  decrees  after  term,  but  the 

606;  Strauss  v.  Strauss,  14  N.  Y.  statute  relating  to  the  modification 

Supp.  671.    See,  distinction  in  Mil-  of  decrees  of  alimony  was  cited  and 

deberger  v.  Mildeberger,  13  Daly,  relied  upon. 

195-  *  Smith  v.  Smith,  45  Ala.  364. 

SBauman   v.  Bauman,   18  Ark.  sgtillman  u  Stillman.99  Bl.  196; 

330.    In  Ellis  u  Ellis,  13  Neb.  91,  Wheeler  u  Wheeler,  18  Bl.  39;  Rob- 

the  lower  court  granted  a  division  bins  v.  Robbins,  101  111.  416;  Call  v. 


§  933a.J  THE   DECEEE    FOE   ALIMONY.  887 

Eut  it  seems  that  such  statutes  refer  to  alimony  proper, 
where  it  is  made  payable  in  instalments  for  the  maintenance 
•of  the  wife  according  to  the  practice  of  the  ecclesiastical 
courts.  Such  alimony  must  be  varied  according  to  the 
-changed  circumstances  of  the  parties,  the  diminished  means 
of  the  husband,  or  the  increased  needs  of  the  wife.  At  the 
common  law  the  parties  were  not  absolutely  divorced,  and 
the  husband's  liability  could  be  adjusted  by  the  courts  while 
the  parties  were  separated.  This  Avas  the  reason  of  the  rule 
that  the  amount  of  alimony  might  be  increased  or  dimin- 
ished. But  the  rule  has  no  application  to  alimony  in  the 
form  of  a  gross  sum  or  a  division  of  the  property.  In  such 
case  it  is  held  that  the  gross  sum  is  in  lieu  of  all  claims  for 
alimony.  "  Had  it  been  a  yearly  sum,"  suggested  one  court, 
"  then  the  alteration  of  the  circumstances  of  the  parties 
might,  in  many  cases,  be  such  as  would  require  its  reduction 
or  increase  in  amount.  But  where  a  gross  sum  is  decreed 
and  received  for  or  in  satisfaction,  or  in  lieu  of  alimony,  it 
must  be  held  to  be  in  full  discharge  and  satisfaction  of  all 
claim  for  future  support  of  the  wife.  When  they  are  di- 
vorced, they  from  that  time  forward  cease  to  have  claims 
on  each  other,  and  all  rights  and  duties  are  at  an  end.  Hav- 
ing discharged  the  duty  of  her  support,  by  paying  to  his 
former  wife  the  gross  sum  decreed  in  lieu  of  alimony,  she 
ceased  to  have  any  more  claim  on  her  former  husband  for 
her  support  than  she  has  on  any  other  man  in  the  commu- 
nity." '  "Where  a  division  of  property  is  authorized  by  stat- 
ute, it  is  held  that  the  statutes  providing  for  the  modification 
of  decrees  of  alimony  do  not  apply,  as  the  decree  is  a  final 
settlement.^ 

Call,  65  Mo.  407;  Sheaf  e  v.  Sheaf  e,  40  Wis.  462;  Thomas  v.  Thomas,  41 

36  N.  H.  155;  Perkins  v.  Perkins,  13  Wis.  329;  Blake  v.  Blake,  75  Wis. 

Mich.  456 ;  Fisher  v.  Fisher,  32  la.  20 ;  339. 

•Shaw  V.  McHenry,  52  la.  182;  Ely  the  '  Plaster  v.  Plaster,  47  111.  290,  ap- 

V.  Blythe,  25  la.  266 ;  Andrews  v.  proved  in  Semrow  v.  Semrow,  23 

Andrews,  15  la.   423;  O'Hagan  v.  Minn.  214. 

O'Hagan,  4  la.  509;  Weld  u  Weld,  2  Bacon  v.  Bacon,  43  Wis.  197; 

28  Minn.  33;  Hopkins  v.  Hopkins,  Webster  v.  Webster,  64  Wis.  438. 


888  THE   DECREE   FOE   ALIMONY.  [§  934. 

The  terms  of  the  decree  may  exclude  any  modification.^ 
But  it  is  clear  that  the  decree  cannot  prohibit  such  change^ 
where  the  statute  provides  otherwise.^  In  all  cases  the  de- 
cree for  alimony  may  be  vacated  and  set  aside  or  modified 
as  other  judgments  and  decrees,  on  account  of  fraud  and 
mistake.' 

§  934:.  When  permanent  alimony  will  be  revised. —  In 
those  states  where  the  decree  for  alimony  may  be  revised  it 
is  held  that  no  change  will  be  made  unless  it  is  shown  that 
the  wife's  needs  or  the  husband's  faculties  have  increased  or 
diminished.  The  decree  is  res  judicata  as  to  all  matters 
existing  at  the  time  it  was  rendered.  IS'ew  facts  occurring 
since  the  decree  must  be  shown.*  The  estoppel  extends  ta 
all  matters  properly  before  the  court  which  the  parties 
might  have  litiffated.'^ 

The  new  facts  which  wiU  influence  the  court  in  increasing 
or  decreasing  the  allowance  are  necessarily  those  which 
affect  the  pecuniary  condition  of  the  parties.*    The  former 

The  same  construction  is  given  to  Wilde  v.  Wilde,  36  la.  319;  Raid  u. 

the  English  statute.    Gladstone  v.  Eeid,  74  la.  681;  White  v.  White, 

Gladstone,  1  P.  D.  443.  75  la.  318;  Strauss  v.  Strauss,  14  N. 

iHyde  V.  Hyde,  4  Swab.  &  T.  80.  Y.  Supp.  671;  Semrow  v.  Semrow, 

2  Campbell  v.  Campbell,  87  Wis.  23  Minn.  214;  Fisher  v.  Fisher,  33: 
206;  CoaduCoad,41  Wis.23;Guen-  la.  20;'Olney  v.  Watjts,  43  O.  St.. 
ther  V.  Jacobs,  44  Wis.  354  499;  Buckminster  v.  Buckminster, 

3  Sinter  v.  Senter,  70  Cal.  619;  38  Vt.  248;  Perkins  v.  Perkins,  12 
Gray  v.  Gray,  83  Mo.  106;  Speck  v.  Mich.  456;  Weld  v.  Weld,  28  Minn. 
Dausman,  7  Mo.  Ap.  165;  Moon  v.  33;  De  Blaquiere  u  De  Blaquiere,  3 
Baum,  58  Ind.  194.  In  Perkins  v.  Hag.  Ec.  322;  Cox  v.  Cox,  3  Ad.  Ec. 
Perkins,  13  Mich.  456,  the  court  re-  276;  Vert  v.  Vert,  3  S.  Dak.  619,  54 
fused  to  modify  a  decree  for  ali-  N.  W.  665;  Louis  v.  Louis,  1  P.  & 
mony  where  the  husband  was  not  M.  330. 

aware,  when  the  decree  was  ren-  s  Petersine  v.  Thomas,  38  0.  St. 

dered,  that  alitoony  in  gross  was  596;  Harmar  v.  Harmar,  D.  &  S. 

not  a  bar  to  the  wife's  right  of  383. 

dower.  If  the  lower  court  had  over-  ^  gge  form  of  decree  revising  ali- 

looked  the  fact  that  the  wife  re-  mony  in  Dawson  v.  Dawson,  110- 

tained  her  right  of  dower  on  di-  IlL  279.    See  form  of  application 

vorce,  it  would  seem  to  be  error  to  to  modify  decree  for  alimony  in 

refuse  to  modify  the  decree.  Olney  v.  Watts,  43  Ohio  St.  499. 
*Fishli  V.  Fishli,  1  Biackf.  360; 


§  934.]  THE  DECREE  FOE  ALIMONY.  88& 

wife  is  no  longer  such,  but  is  a  mere  judgment  creditor  of 
the  husband ;  consequently  her  misconduct  will  not  affect  the 
allowance.^  Her  adultery  will  not  be  a  cause  for  terminat- 
ing the  alimony ;  as  she  can  commit  no  offense  against  a 
marriage  which  has  been  dissolved.''*  It  is  said  that  "  the  di- 
vorce puts  the  parties  in  the  position  of  strangers  to  each 
other  as  to  their  moral  conduct  thereafter.  Her  claim  on 
him  under  the  ordinary  order  of  alimony  is  merely  pecun- 
iary, not  to  be  affected  by  her  vice  or  virtue,  any  more 
than  if  the  recurring  sums  for  alimony  were  instalments 
upon  a  land  purchase." '  Another  good  reason  for  refusing 
to  disturb  the  decree  on  account  of  the  subsequent  miscon- 
duct of  the  wife  is  that  the  allowance  made  by  the  court 
may  have  been  a  restitution  of  property  which  the  wife  had 
contributed  to  the  common  fund,  or  which  was  the  result  of 
their  joint  earnings  and  economy.*  It  is  held  that  the  wife 
cannot  recover  alimony  while  she  is  supported  by  a  para- 
mour ;  but  she  may  recover  after  such  support  ceased.'  The 
death  of  a  child  or  the  ability  of  the  children  to  support 
themselves  may  be  a  cause  for  changing  the  allowance,  as 
such  events  relieve  the  wife  of  their  support.^  Generally 
the  application  to  change  the  allowance  is  based  upon  the 
inability  of  the  husband  to  make  the  required  payments.'^ 
It  is  held  that  an  increase  of  the  husband's  property  by  in- 
heritance will  justify  an  increase  of  the  allowance.^ 

1  But  if  the  divorce  is  from  bed  *  Cole  v.  Cole,  142  111.  19. 
and  board  the  wife  still  owes  alle-  5  Holt  v.  Holt,  1  P.  &  M.  610. 
giance  to  the   husband,  and  her  ^  Thurston    v.   Thurston,   38  111. 
adultery  will  justify  the  court  in  Ap.   464;   Senirow  v.  Semrow,  33 
vacating  the  decree   of  alimony.  Minn.  214. 

Severn  v.  Severn,  14  Grant  (U.  C),  '  Fisher  v.  Fisher,  33  la.  20;  Bar- 

150.  rett  V.  Barrett,  41  N.  J.  Eq.  139; 

2  Forrest  v.  Forrest,  3  Bosw.  661,  Holway  v.  Hoi  way,  39  Grant  Ch. 
8  Bosw.  640,  9  Bosw.  686,  35  N.  Y.  41 ;  Halstead  v.  Halstead,  5  Duer, 
501;  Cross  v.  Cross,  63  N.  H.  444;  659;  De  Blaquiere  u  De  Blaquiere, 
Alexander  v.  Alexander,  20  D.  C.  3  Hag.  Ec.  333. 
553;Begbiei;.Begbie,3Halst.Ch.98.  ^Mildeberger  v.  Mildeberger,  13 

3  Cole  V.  Cole,  35  111.  Ap.  544.   See,  Daly,  195. 

also,  Bradley  v.  Bradley,  7  P.  D.  337.        In  revising  a  decree  for  alimony 


€90  THE  DECREE  FOE  ALIMONY.  [§  935. 

"Where  the  alimony  is  not  in  gross  and  does  not  appear 
to  be  in  settlement  of  property  rights  or  in  lieu  of  dower, 
the  court  may  terminate  the  allowance  on  the  death  of  the 
husband.^ 

§  935.  Alimonj  where  there  is  no  personal  service. — 
Where  there  is  no  personal  service  and  the  defendant  does  not 
appear,  the  suit  is  based  upon  constructive  service  —  either 
service  by  publication  or  personal  service  in  another  state. 
In  such  case  the  proceeding  is  said  to  be  in  rem  so  far  as  it 
affects  the  marital  status  of  the  parties.  The  jurisdiction  is 
over  the  status  of  the  parties  only ;  and  so  far  as  the  decree 
operates  upon  such  status  it  is  valid.  Eut  so  far  as  the  decree 
awards  alimony  and  costs,  or  the  maintenance  of  children, 
it  is  said  to  be  in  personam,  and  void  for  want  of  personal 
service  within  the  state.^  It  seems  that  under  the  present 
condition  of  our  law  the  wife  is  without  remedy  where  the 
husband  leaves  his  property  and  goes  to  another  state.  She 
may  have  the  marriage  dissolved  by  a  decree  in  rem,  but  in 
such  action  she  cannot  have  a  valid  decree  of  alimony  or 
any  relief  against  his  property."  If  she  follows  her  husband 
to  obtain  divorce  where  he  resides,  he  can  remove  to  an- 
other state  before  she  can  acquire  a  domicile  and  commence 
her  suit.  Under  the  rulings  of  many  of  our  states  the  hus- 
band may  leave  his  wife  and  property,  go  to  another  state 
and  obtain  a  decree  of  divorce  without  personal  service  or 
actual  notice  to  the  wife,  and  such  decree  is  a  bar  to  her 
right  to  alimony  and  dower.*  Where  a  decree  for  alimony 
was  held  void  because  rendered  without  personal  service 

the  court  may  award  a  gross  sum  Lythe  v.  Lythe,  48  Ind.  300;  Mid- 

in  lien  of  alimony  in  instalments,  die  worth  v.  McDowell,  49  Ind.  386; 

and  may  make  such  sum  a  lien  on  Beard  v.  Beard,  21  Ind.  331;  Kline 

property  which  secured  the  former  v.   Kline,   57    la.   386;    Madden  v. 

decree.    King  v.  Miller,  10  Wash.  Fielding,  19  La.  An.  505;  Ellison  v. 

274,  38  P.  1020.  Martin,  53  Mo.  575;  Eigney  v.  Rig- 

iLennahan  v.  O'Keefe,  107  111.  ney,  137  N.  Y.  408,  28  N.  E.  405; 

^-*^-  Black  on  Judgments,  §  933. 

2  Bunnell  v.  Bunnell,  25  Fed.  214;  3  Bunnell  v.  Bunnell',  35  Fed.  214 

Prosser    v.  Warner,  47    Vt.    667;  <  Gould  v.  Crow,  51  Mo.  200. 


§  936.]  THE   DECREE    FOE   ALIMONY.  891 

upon  the  husband,  it  was  suggested  that  if  the  wife  "  Avere 
allowed  to  proceed  as  an  attaching  credito-r  when  her  bill  is 
filed,  the  suit  might  partake  of  the  nature  of  a  proceeding 
in  rem,  and  a  decree  for  alimony  be  enforced  against  the 
property-  itself."  ^  Where  a  petition  for  divorce  describes 
the  husband's  property,  and  asks  that  his  conveyance  to 
others  be  set  aside  and  the  property  made  subject  to  a  de- 
cree for  alimon}',  the  fact  that  a  lis  pendens  was  filed  will 
not  create  a  lien  upon  the  property,  or  bring  it  within  the 
jurisdiction  of  the  court  so  as  to  render  the  proceeding 
in  rem?  The  most  satisfactory  remedy  is  an  attachment 
against  the  husband's  property  to  satisfy  the  decree  of  ali- 
mony. Such  remedy  exists  in  some  of  the  states.'  In  some 
states  this  remedy  may  be  had  under  the  general  provisions 
of  the  code.^  Where  the  decree  for  alimony  is  void  because 
rendered  without  personal  service,  it  is  held  that  in  a  sup- 
plemental proceeding,  in  the  nature  of  a  creditor's  bill 
against  the  husband's  property,  the  same  court  may  render 
a  valid  decree  for  alimony  if  the  husband  appears  to  object 
to  the  vahdity  of  the  proceedings.* 

§  936.  Alimony  after  divorce. —  It  is  an  open  question 
whether  alimony  can  be  allowed  after  the  marriage  relation 
is  dissolved  by  divorce.  The  question  is  clearly  one  of  in- 
terpretation of  the  statute,  and  no  aid  can  be  derived  from 

iBunnellu  Bunnell,  25  Fed.  314,  884.    The  code  (sec.  41)  provides 

citing  on  this  proposition.  Cooper  that  service    by  publication  can 

V.  Reynolds,  10  Wall.  308.  only  be  had  in  "cases  of  attach- 

2  Bunnell  v.  Bunnell,  25  Fed.  214  ment,  foreclosure,  claim  and  de- 

3  See  statutes  in  Daniels  v.  Lind-  livery,  divorce  or  other  proceed- 
ley,  44  la.  567;  Daniels  v.  Morris,  ings  where  specific  property  is  to 
54  la.  369;  Downs  v.  Flanders,  150  be  affected,  or  where  the  procedure 
Mass.  93.  is  such  as  is  known  as  a  proceed- 

*  In  Colorado  the  wife  may  re-  ing  in  rem." 
cover  alimony  without  divorce  5  Johnson  v.  Johnson,  31  Neb. 
and  in  the  same  action  have  a  385,  47  N.  W.  1115.  For  direct  pro- 
fraudulent  conveyance  set  aside  ceeding  for  alimony  upon  personal 
and  the  real  estate  adjudged  sub-  service  in  another  state,  see  Thurs- 
ject  to  a  lien  for  the  alimony,  ton  v.  Thurston  (Minn.),  59  N.  W. 
Hanscom  v.  Hanscom  (Colo.),  39  P.  1017. 


892  THE    DECEEE   FOE   ALIMONY.  [§  936. 

the  common  law,  since  the  power  both  to  dissolve  the  mar- 
riage and  grant  the  wife  a  permanent  maintenance  after  an 
absolute  divorce  is  derived  from  statute  in  all  the  states  and 
in  England.  These  statutes  are  similar  in  their  phraseology, 
and  a  fair  interpretation  would  seem  to  be  that  they  con- 
template an  adjudication  of  all  questions  of  alimony  by  the 
court  which  grants  the  divorce  and  at  the  same  time.  It  is 
conceded  that  the  court  may,  in  a  decree  dissolving  the 
marriage,  reserve  the  power'  to  grant  alimony  at  a  later 
date.^  And  the  statute  may  by  direct  terms  permit  a  decree 
for  alimony  after  divorce,  as  in  New  Hampshire,  where  the 
court  has  power  "  to  revise  and  modify  any  order  made  re- 
specting alimony,  and  to  make  such  new  orders  as  may  be 
necessary,"  etc.^  Or  the  terms  of  the  statute  often  indicate  , 
that 'the  decree  may  be  rendered  "  upon  a  decree  of  divorce  " 
or  "when  a  divorce  is  granted."'  But  where  the  decree 
does  not  reserve  the  power  to  grant  alimony,  or  such  power 
is  not  given  by  statute,  it  is  clear  that  a  decree  of  divorce 
without  alimony  is  an  adjudication  against  the  right  of  the 
wife,  for  the  right  to  alimony  should  have  been  determined 
when  the  divorce  was  granted.* 

1  Ambrose,  Ex  parte,  73  Cal.  398.  ^  Downey  v.  Downey  (Ala.),  1$ 

Permanent    alimony    cannot    be  So.  413. 

granted  until  the  court  had  deter  Mr.  Bishop  holds  that  alimony 

mined  that  a  divorce  will  be  ren-  may  be  granted  after  a  decree  of 

dered.    To  grant  alimony  before  divorce  has  heen  rendered  and  the 

,the  final  hearing  is  error.    John-  term  of  court  has  closed.    "Divorce 

son  V.  Johnson  (iCan.),  39  P.  7'3.j;  litigation,"  said  he,  "is  in  its  nature 

"Woods  V.  Waddle,  44  O.  St.  449;  exceptional,  rendering  it,  as  to  ali- 

Cooledge  v.  Cooledge,  1  Barb.  Ch.  niony,  or  the  support,  of  the  wife, 

77;    Lake   v.  King,   16    Nev.   21.5;  never  at  an  end  during  the  joint 

Galusha  v.  Galusha,  138  N.  Y.  373^  lives  of  the  parties.    Aiid  such  was 

33  N.  E.  1063.    But  see  contra,  Cul-  the  law  which    traveled    to  this 

len  V.  CuUen,  .55  N.  Y.  Supr.  346.  country  from  England  to  become 

^Ela  V.  Ela,  63  N.  H.  116;  Sheafe  common  law  here.    For  the  course 

V.  Sheafe,  36  N.  H.  155;  Sheafe  v.  in    the    ecclesiastical   courts,  fol- 

Laighton,  36  N.  H.  240;  Folsom  v.  lowed  afterward   by  the   divorce 

Eolsom,  55  N.  H.  78.  court,  was  not  only  to  receive  ap- 

3  See  Prescott  v.  Prescott,  59  Me.  plications  to  vary  the  alimony  at 

lis.  times  and  terms  of  court  however 


I  936.] 


THE  DECREE  FOE  ALIMONY. 


893 


If  the  decree  expressly  reserves  the  question  of  alimony 
for  further  consideration  or  for  further  order  or  decree,  it  is 
clear  that  the  decree  is  not  an  adjudication  of  the  question. 
Application  for  permanent  alimony  may  be  made  within  any 
reasonable  time  after  the  divorce  is  granted.' 

The  power  to  revise  or  modify  a  judgment  relating  to  ali- 
mony would  seem  to  imply  the  power  to  grant  a  new  hear- 
ing, and  to  make  a  new  decree  in  conformity  to  the  changed 
condition  of  the  parties.  If  the  decree  of  divorce  fixes  some 
amount  of  alimony,  that  amount  may  be  changed.  If  the 
decree  was  silent  as  to  alimony,  further  evidence  may  be 
heard,  and  the  decree  may  be  revised.  The  power  to  revise 
exists  in  either  case.     "  The  power  of  the  court  to  award 


remote  after  the  granting  of  the 
diTorce;  but  if  the  question  of  ali- 
mony was  not  passed  upon  before 
the  divorce  sentence  was  entered 
and  the  court  adjourned,  to  enter- 
tain in  the  same  cause  an  original 
petition  for  it  at  any  subsequent 
time  or  term.  In  accordance  with 
which  view,  it  has  been  in  some  of 
our  courts  laid  down  that  though 
the  common  practice  is  to  ask  for 
divorce  and  alimony  in  one  bill, 
and  have  an  award  of  both  at  one 
time,  a  party  need  not  proceed 
thus;  but  if  the  question  of  ali- 
mony is  not  determined  in  the  di- . 
vorce  suit,  the  wife  may  afterward 
sue  for  it  by  separate  bill,  either  in 
the  same  court  or  any  other  of 
competent  jurisdiction,''  —  citing 
the  following  authorities,  some  of 
which  do  not  sustain  him:  Shot- 
well  V.  ShotweU,  Sm.  &  M.  Ch.  51; 
Lawson  v.  ShotweU,  27  Miss.  680; 
Crugom  V.  Crugom,  64  Wis.  253; 
also  Lyon  v.  Lypn,  21  Conn.  185; 
McKarracher  i  v.  McKarracher,  3 
Yeates,  56;  Jordan  v.  Jordan,  53 
Mich.  550;  Ellis  v.  Ellis,  13  Neb.  91. 


No  distinction  is  made  by  him  be- 
tween the  two  kinds  of  divorce. 
The  common  law  applies  to  per- 
manent alimony  after  a  decree  a 
mensa,  but  it  seems  that  it  does 
not  apply  to  the  permanent  main- 
tenance rendered  after  the  statu- 
tory divorce  from  the  bonds  of 
matrimony.  See  Erkenbrach  i\ 
Erkenbrach,  96  N.  Y.  456;  Eomaine 
V.  Chauncey,  139  N.  Y.  566. 

1 A  decree  of  absolute  divorce  re- 
served the  question  of  permanent 
alimony  "  for  further  order  or  de- 
cree herein,"'  and  the  wife  made 
no  application  for  alimony  until 
after  the  death  of  the  husband, 
some  five  years  after  the  decree  of 
divorce  was  rendered.  The  exec- 
utor imder  the  will  resisted  the 
wife's  application  for  alimony  out 
of  the  estate.  It  was  held  that  the 
wife  could  recover  alimony  under 
such  circumstances,  as  the  subse- 
quent death  of  the  husband  would 
not  oust  the  court  of  jurisdiction 
to  make  such  order.  Seilby  v.  Ing- 
ham (Mich.),  63  N.  W.  538. 


894:  THE   DECEEE    FOE   ALIMONY.  [§  936, 

alimony  to  a  wife  in  a  divorce  suit  does  not  depend  on  the 
fact  that  some  alimony  was  awarded  at  the  time  the  judg- 
ment for  divorce  was  granted.  The  fact  that  no  alunony 
was  then  awarded  by  the  court  is  no  bar  to  its  being  after- 
ward awarded."  ^  But  where  the  wife  has  applied  for  ali- 
mony, and  the  decree  of  divorce  is  silent  as  to  her  right  ta 
alimony,  the  presumption  is  that  her  application  was  re- 
fused, and  the  decree  is  an  adjudication  that  she  has  no  right 
to  alimony.^  Such  decree  cannot  be  modified  by  allowing 
alimony. 

The  English  divorce  act '  contains  a  provision  similar  to 
th^  provisions  of  our  statutes  relating  to  alimony  after  an 
absolute  divorce.  It  provides  that  "  the  court  may,  if  it 
shall  think  fit,  07i  any  such  decree  (of  absolute  divorce)  order 
that  the  husband  shall,  to  the  satisfaction  of  the  court,  se- 
cure to  the  wife  such  gross  sum  of  money,"  etc.  Under  this 
statute  it  is  held  that  the  court  may  make  an  order  for  per- 
manent maintenance  after  an  absolute  divorce  has  been  pro- 
nounced, if  the  application  is  made  without  unreasonable 
delay.* 

The  decree  of  divorce,  whether  with  or  without  alimony,. 

1  Cook  V.  Cook,  56  Wis.  195.    The  silent  as  to  alimony,  it  was  held 

Wisconsin  statute    provides  that  that  the  court  might  award  it  on 

"after  a  judgment  providing  for  tlie  wife's  application  five  year& 

alimony,   or  other  allowance  for  afterward.     Crugom  v.  Crugom,  64 

the  wife  or  children,    .    .    .    the  Wis.  353. 

court  may  from  time  to  time,  on  For  Missouri  statute  relating  to 

the  petition  of  either  of  the  par-  revision,  see  Anderson  v.  Ander- 

ties,  revise  and   alter  such  judg-  son,  55  Mo.  Ap.  368. 

nient,    .    .    .    and  may  make  any  ^  Howell  v.  Howell,  f04  Cal.  45, 

judgment  respecting  any  of  the  37  P.  770. 

said    matters    which   such    court  i  '  20  and  21  Vict, 

might  have  made  in  the  original  ac-  *  Bradley  v.  Bradley,  3  P.  D.  47, 

tion."    It  is  held  that  tliis  provision  overruling  Vicars  v.  Vicars,  29  L.  J. 

authorizes  the  granting  of  alimony  (P.  &  M.)  20.    See,  also,  Winston  v. 

where  a  divorce  was  obtained  in  Winston,  2  Swab.  &  T.  346;  Charles 

another  state.  See  dissenting  opin-  v.  Charles,  1  P.  &  M.  360 ;  Sidney  v. 

ion  of  Taylor,  J.,  in  Cook  v.  Cook,  Sidney,  1  P.  &  M.  78,  overruled  36 

56  Wis.  195.     And  where  the  hus-  L.  J.  (P.  &  M.)  74;  CoveU  v.  Covell, 

band  obtained  a  decree  which  was  3  P.  &  M.  411. 


§  936.]  THE   DECREE    FOE   ALIMONY.  895- 

sliould  be  governed  by  the  ordinary  rules  of  law  which  are 
applied  to  other  judgments.  If  the  wife  appeared  in  the 
action  and  a  decree  was  rendered  without  alimony,  the  law 
will  presume  that  every  question  which  might  have  been 
involved  in  the  action  was  litigated,  and  in  effect  a  decree 
without  alimony  is  the  same  as  a  decree  denying  alimony.' 
Such  decree  may  be  revised  by  showing  that  it  was  obtained 
by  fraud,  or  that  some  mistake  was  made,  or  that  the  hus- 
band concealed  his  property .^  Under  the  principle  of  res 
judicata  it  would  seem  that  if  the  wife  had  no  opportunity 
to  be  heard,  and  could  make  no  application  for  alimony,  and 
the  court  did  not  pass  upon  the  question,  or  had  no  jurisdic- 
tion to  award  alimony,  the  ex  parte  decree  of  divorce  should 
not  be  a  bar  to  her  subsequent  proceedings  for  alimony.-' 
It  may  be  urged  that  the  decree  of  divorce  dissolved  the- 
marriage  relation  and  there  is  no  longer  a  husband  and  wife 
and  no  liability  on  the  part  of  the  man  to  support  his  former 
wife.  But  in  answer  to  this  it  may  be  said  that  when  a 
man  obtains  a  divorce  he  thereupon  becomes  liable  for  per- 
manent maintenance  of  his  former  wife  as  fixed  by  the 
court.  If  the  court  granting  the  divorce  does  not  fix  the 
amount  of  his  liability,  has  he  escaped  all  liability  ?  Are 
the  rights  of  the  wife  to  be  determined  without  her  '  day  in 
court?'  What  remedy  has  she  if  an  ex  parte  divorce  is  a 
bar  to  a  subsequent  application  for  alimony  ?  * 

iKamp  V,  Kamp,  59  N.  Y.  312;  time  to  permit  her  to  defend,  and 
Erkenbach  v.  Erkenbach,  96  N.  Y.  the  decree  made  no  provision  for 
456;  Wilde  v.  Wilde,  36  la.  319;  alimony,  the  wife  could  obtain  re- 
Jordan  V.  Jordan,  53  Mich.  550 ;  lief  by  an  original  suit,  but  not  by 
Lawson  v.  Shotwell,  27  Miss.  630,  proceeding  for  review.  Henderson 
overruling  Shotwell  v.  Sliotwell,  r.  Henderson,  64  Me.  419. 
Sm.  &  M.  Ch.  51.  "  See  contra,  Roe  v.  Roe,  53  Kan, 

2  Wilde    V.    Wilde,    36    la.    319;  724,  35  P.  808. 

Blythe  u  BIythe,  35  la.  266.    But  *  The  statute  of  Ohio  permits  her 

see,  contra,  Johnson  v.  Johnson,  13  to  obtain  alimony  although   the 

Daly,  333,   65  How.   Pr.   517.     In  parties  are  divorced  by  an  ex  parte 

Maine  it  is  held  that  where  the  decree.    In  Cox  u  Cox,  19  0.  St. 

husband  obtained  a  divorce  with-  503,  the  wife  was  allowed  a  decree 

out  actual  notice  to  the  wife  in  for  alimony  although  the  husband 


896  THE   DECEEE   FOE   ALIMONY.  [§  936. 

The  ex  parte  decree  of  divorce  is  in  no  sense  an  adjudica- 
tion of  her  right  to  alimony.  The  court  had  no  jurisdiction 
over  the  wife  or  her  property  rights.  The  jurisdiction  of 
the  court  was  limited  to  the  res^  the  staUis  of  the  husband, 
and  so  far  is  valid  as  a  dissolution  of  the  marriage.  As  said 
by  the  Alabama  court,  "  it  certainly  cannot  affect  the  rights 
of  the  complainant,  except  her  right  in  the  husband  as  a 
husband.  .  .  .  But  it  does  not  settle  her  right  to  ali- 
mony; it  does  not  settle  her  right  to  dower  in  his  lands, 
and  her  statutory  right  to  distribution  of  his  property  in 
this  state,  in  the  event  she  should  survive  him,  nor  any  other 
interest  of  a  pecuniary  character  she  may  have  against  him."  ' 

In  conformity  with  the  above  doctrine  it  is  held  in  Min- 
nesota that  "  The  question  of  alimony  is  not  res  adjudieata 
by  reason  of  a  judgment  of  divorce  in  the  proceeding  in 
rem.  .  .  .  That  judgment  establishes  nothing  except 
that  the  marriage  relation  has  been  condemned  and  de- 
stroyed by  a  judgment  of  divorce ;  all  other  questions  are 


had  obtained  a  divorce  in  Indiana,  sequently  acquired  should  not  be 

Where  a  wife  obtained  an  ex  parte  considered.     Van   Orsdal  v.  Van 

divorce    a   vinculo    in  Tennessee  Orsdal,  67  la.  35. 

upon  constructive  service,  and  her  i  Turner  v.  Turner,  44  Ala.  437, 

application  for  alimony  vcas  dis-  citing  Webster  v.  Eeid,  11   How. 

missed  without  prejudice  to  enable  (U.  S.)  437, 460 ;  Nations  v.  Johnson, 

her  to  sue  for  it  elsewhere,  it  was  34  How.  (U.  S.)  195;  Boswell's  Les- 

held  that  she  might' recover  ali-  see  w  Otis,  9  How.  (U.  S.)  336;  Mills 

mony  in  a  subsequent  action  in  v.  Duryee,  7  Cranch,  481 ;  D'Arcey 

Ohio.    Woods  V.  Waddle,  44  O.  St.  v.  Ketohum,  11  How.  (U.  S.)  165; 

449.    It  is  held  that  an  ex  jaarte  de-  McElmoyle  v.  Cohen,  18  Pet.  313, 

cree  while  it  changes  the  status  of  330. 

the  parties  does  not' affect  their  ^xhurston  v.  Thurston  (Minn.), 

property  rights.    Doer  v.  Forsythe,  59  N.  W.  1017,  approving  Turner  v. 

50  O.  St.  736.    In  Iowa  it  is  ad-  Turner,  44  Ala.  437.   In  this  case  the 

niitted  that  an  ex  parte  divorce  husband,  in  contemplation  of  a  suit 

will  not  bar  an  application  for  ali-  for  divorce,  induced  the  wife  to  join 

mony;   but  the  alimony  granted  with  him  in  conveying  his  real  es- 

must  be  with  reference  to  the  hus-  tate  to  one  of  the  defendants  to  be 

band's  property  at  the  time  the  de-  held  in  trust  for  the  husband  and 

cree  was  rendered.    Property  sub-  thus  defeat  the  wife's  claim  for 


§  936.]  THE   DECREE    FOE   ALIMONY.  897. 

Where  the  husband  leaves  the  wife  and  goes  to  another 
state,  he  cannot  escape  his  liability  for  alimony  by  obtaining 
an  ex  parte  decree  of  divorce  on  constructive  service.  To 
give  the  decree  this  effect  would  work  a  fraud  upon  the  pe- 
-cuniary  rights  of  the  parties.  The  wife  may,  within  a  rea- 
sonable time,  recover  alimony  in  a  subsequent  proceeding 
without  vacating  the  ex  parte  decree.^  She  may  bring  the 
action  in  the  state  where  the  husband  obtained  the  decree.^ 
Or  she  may  recover  the  alimony  in  the  state  where  she  re- 
sides.' 

The  doctrine  that  an  ex  parte  decree  is  not  a  bar  to  a  sub- 
sequent proceeding  for  alimony  is  denied  in  Kansas.  The 
wife  brought -an  action  for  divorce  in  Kansas,  but  before  she 
obtained  a  decree  the  husband  obtained  a  valid  decree  of  di- 
vorce in  Colorado  on  service  by  publication.  It  was  held 
that  this  decree  was  a  final  adjudication  not  only  of  the 
■status  of  the  parties  but  also  of  th^  pt-operty  rights  of  the 
wife.*  The  doctrine  of  res  adjudioata  could  not  make  such 
■decree  final  as  to  property  rights,  for  the  reason  that  such 
rights  could  not  have  been  litigated  in  the  proceeding  in, 
.rem  in  Colorado.  That  action  could  proceed  no  farther 
than  to  fix  the  status  of  the  husband. 

Alimony.    The  defendant  pleaded  Thurston  v.  Thurston  (Minn.),  59 

■a,  decree  of  divorce  obtained  by  the  N.  W.  1017.    Under  the  peculiar 

husband  in  Washington,  and  on  statuteof  Ohio,  when  such  alimony 

the  trial  objected  to  the  jurisdic-  is  granted,  the  allowance  is  based 

tion  of  the  court  to  grant  alimony  upon  the  value  of  the  husband's 

because  the  personal  service  on  the  property  at  the  time  of  the  wife's 

husband  in  Washington  was,  in  application,  and  not  at  the  time  he 

effect,  only  constructive,  and  not  obtained  a  decree.    Cox  v.  Cox,  20 

justifying  a  decree  in  personam.  O.  St.  439. 

But  it  was  held  that  the  decree  was  *  Eoe  v.  Roe,  53  Kan.  774,  35  P. 

not  a  bar  to  an  action  for  alimony,  808.    Thfe  decision  is  influenced  by 

-and  the  defect  of  parties  defendant  the  delay  of  the  wife  and  also  by 

was  waived  by  failure  to  raise  the  the  presumption  that  the  laws  of 

objection  before  trial.  Colorado  are  the  same  as  Kansas, 

1  Cochran  v.  Cochran  (Neb.),  60  which  provide  that  a  decree  of 
U.  W.  942.  divorce  shall  be  a  final  adjudica- 

2  Id. ;  Graves  v.  Graves,  36  la.  810.    tion  of  property  rights. 
■*  Turner  v.  Turner,  44  Ala.  437; 

57 


898  THE   DECREE    FOE   ALIMOSTT.  [§  937:, 

The  fact  that  the  relation  of  husband  and  wife  no  longer 
exists  will  not  prevent  the  action  for  alimony.  A  legisla- 
tive divorce  dissolves  the  marriage  but  does  not  bar  the  ac- 
tion  for  alimony .^  This  is  denied,  however,  because  it  is  said 
that  alimony  is  always  an  incident  of  divorce  and  cannot  be' 
granted  on  a  subsequent  application.^  It  is  now  held  in 
most  of  the  states  that  the  wife  may  recover  alimony  with- 
out divorce.' 

§  937.  When  alimony  is  exempt. —  When  the  decree  for 
alimony  is  payable  in  instalments,  and  is  not  a  division  of 
the  property  or  a  decree  for  a  gross  sum,  it  is  intended  that 
the  alimony  shall  be  allowed  to  the  wife  for  her  support. 
Duriug  the  marriage  the  husband  is  bound  to  support  the 
wife,  and  when  the  marriage  is  dissolved  by  divorce  the  hus- 
band is  not  relieved  from  such  obligation,  but  it  is  continued 
by  the  decree  for  alimony.  Such  decree  is  not  strictly  a 
debt,  but  is  a  continuing  duty  of  support,  the  terms  of  which 
are  expressed  in  the  decree.*  It  has  been  held  that  this 
special  fund  for  the  wife's  support  is  her  own  separate  prop- 
erty, and  is  subject  to  execution  and  garnishment  as  other 
property.  The  reason  assigned  was  that  at  common  law 
all  the  debtor's  property,  except  necessary  wearing  apparel^ 
might  be  taken  to  pay  the  claims  of  creditors,  and  that  all 
exceptions  to  this  general  rule  must  be  created  by  statute. 
Alimony,  or  the  separate  maintenance  of  a  married  woman,, 
is  not  exempt  by  statute,  and  therefore  may  be  applied  to 
the  payment  of  judgments  against  the  wife.^    While  it  may 

1  Biohardson  v.  WUson,  8  Yerg.  44  la.  567;  Burr  v.  Burr,  7  Hill,  207  ^ 
67.  White  v.  Bates  (Tenn.),  15  S.  W.  651. 

2  Bowman  v.  Worthington,  24  ^  Stevenson  v.  Stevenson,  34  Hun, 
Ark.  523.  157.    The  separate  maintenance  in 

8  See    reasoning    in  Cochran  v.  this  case  was  granted  upon  a  de- 

Coohran,  supra.  cree    of   divorce    "from  bed  and 

*  Jordan  v.  Westerman,  62  Mich,  board  forever,"  and  it  does  not  ap- 

170;   Guenther  v.  Jacobs,  44  Wis.  pear  that  the  judgments  against 

354;  Grain  i;.  Cavana,  62  Barb.  109;  the  wife  were  fornecessaries.    The 

Wallingsf ord   v.   Wallingsford,    6  court  also  held  that  her  alimony 

Har.  &  J.  485;  Daniels  v,  Lindley,  was  not  exempt  as  property  held 

in  trust  for  the  wife. 


§  937.]  THE    DECREE    FOE   ALIMONY.  899 

be  true  that  alimony  is  not  exempt  by  statute,  this  decision 
is  clearly  wrong,  as  it  overlooked  other  reasons  which  re- 
quire that  the  separate  maintenance  of  the  wife  be  held 
exempt  from  her  creditors.  One  reason  for  holding  such 
alimony  ^exempt  is  that  public  policy  requires  that  the  fund 
for  her  support  should  be  applied  to  that  specific  purpose ; 
otherwise  she  may  become  dependent  upon  public  support.^ 
This  fund  is  in  some  respects  like  the  salary  of  certain  offi- 
cers of  the  army  and  navy,  which  are  held  exempt  on  the 
ground  of  public  policy  in  order  that  they  may  receive  the 
support  necessary  to  render  them  capable  to  perform  their 
duties.^  And  the  fund  is  protected  from  her  creditors  by 
the  same  public  policy  which  exempts  policies  of  insurance 
in  favor  of  the  wife  on  the  life  of  the  husband.'  Another 
sufficient  reason  for  holding  the  alimony  exempt  is  that 
such  fund  is  created  by  equity  for  a  special  purpose,  and  is 
therefore  entitled  to  the  protection  of  equity  against  the 
claims  of  general  creditors.*  It  follows,  therefore,  that  as. 
such  alimony  is  exempt  on  the  ground  of  public  policy  as  a 
special  fund  for  the  support  of  the  wife,  if  a  tradesman  sells 
the  wife  necessaries  for  her  support  his  claim  is  not  within 
the  reason  of  the  rule,  but  may  be  satisfied  from  such  spe- 
cial fund.' 

The  special  character  of  alimony  renders  it  exempt  from 
any  set-off  pleaded  by  the  husband  unless  it  be  a  claim  for 
necessaries.  He  cannot  purchase  a  judgment  or  pay  a 
judgment  as  surety,  and  have  the  same  declared  a  set-off 
against  the  instalments  of  alimony  then  due." 

It  is  doubtful  whether  aU  kinds  of  alimony  have  the  ex- 
emption which  is  conceded  to  alimony  payable  in  instal- 
ments.   Where  the  allowance  is  iu  fact  a  restoration  to  the 

1  Romaine  v.  Chauncey,  60  Hun,  '  Eomaine  v.  Chauncey,  129  N.  Y. 
477,  disapproving  Stevenson  v.  Ste-    566. 

venson,  34  Hun,  157.  *Id. 

2  Id. ;  In  re  Eobinson,  37  Ch.  D.  ^  xhis  point  is  not  adjudicated. 
160;  Reiilenstein  v.  Hooper,  36  U,  The  doctrine  is  asserted  in  Ro- 
C.  Q.  B.  295.  maine  v.  Chauncey,  60  Hun,  477. 

s  Locke  V.  Locke,  71  Hun,  368. 


900  THE   DECKBB   FOE   ALIMONY.  [§  938. 

wife  of  her  property,  or  a  division  of  property  acquired  by 
joint  effort,  or  a  gross  sum  in  lieu  of  alimony,  the  allow- 
ance in  such  case  is  property  that  vests  ^t  once  in  the  wife, 
and  she  may  assign  and  dispose  of  the  same  as  her  separate 
property.  Such  allowances  are  not  strictly  for  the  main- 
tenance of  the  wife,  are  not  special  funds  subject  to  the  re- 
vision and  control  of  the  courts,  and  ai'e  not  therefore  within 
the  reasons  of  the  above  rule.^ 

§  938.  The  wife  as  a  creditor  of  the  husband.—  The 
wife  is  a  special  creditor  of  the  husband.  Public  poHoy 
requires  that  he  should  support  her  in  order  that  she  may 
not  become  dependent  upon  the  state.  His  obligation  to 
support  is  a  paramount  duty  and  a  prior  claim  upon  his  re- 
sources. A  discharge  in  bankruptcy  does  not,  therefore, 
relieve  him  from  the  pajanent  of  alimony.^  The  claims  of 
a  creditor  are  not  prior  to  those  of  the  wife  unless  they  ex- 
isted before  her  suit  for  alimony,  and  can  be  satisfied  out  of 
property  not  exempt.'  "When  the  husband  makes  an  assign- 
ment she  does  not  pro  rate  with  other  creditors.*  The  public 
policy  which  protects  the  homestead  and  the  earnings  of 
the  husband  from  the  avarice  of  the  ordinary  creditor  does 
not  exempt  them  from  the  special  claims  of  the  wife.^    Her 

iSee  Kempster  u  Evans,  81  Wis.        ^ Bates  v.  Bates,  74  Ga.  105;  Ma- 

247,  51  N.  W.  327.  honey  v.  Mahoney  (Minn.),  01  N. 

^Ex  parte  Fryer,  17  Q.  B.  718;  W.  334;  Menzie  v.  Anderson,  65 
Ex  parte  Otway,  58  L.  T.  (N.  S.)  Ind.  239;  Keyes  v.  Scanlon,  63  "Wis. 
885;  Stones  v.  Cooke,  7  Sim.  821-,  345;  Luthe  v.  Luthe,  12  Colo.  421; 
Prescott  V.  Prescott,  30  L.  T.  (N.  S.)  Barker  v.  Dayton,  38  Wis.  367;  In 
331;  Newhouse  v.  C,  5  Whart.  83;  re  Spencer,  82  CaL  110;  Wetmore 
Shine  v.  Shine,  1893  Probate,  389;  v.  Wetmore,  39  N.  Y.  Supp.  440; 
Linton  v.  Linton,  15  Q.  B.  D.  339;  s.  C,  8  Misc.  51;  McGrady  v.  Mo- 
Dickens  V.  Dickens,  30  L.  J.  Mat.  Grady,  48  Mo.  Ap.  668.  See  contra, 
Cas.  183,  3  Swab.  &  T.  645;  In  re  as  to  homestead,  Byers  v.  Byers,  21 
Henderson,  20  Q.  B.  D.  509.  But  la.  368;  Biffle  v.  Pullman^  114  Mo. 
see  Beach  v.  Beach,  29  Hun,  181;  50,  21  S.  W.  450;  Dent  v.  Dent,  1  P. 
Texas'  Case,  1  Ashm.  175.  &  M.  366.    But  see  Sansom  v-  San- 

3MoGee  v.  McGee,  3  Sneed,  221.  som,  4  P.  D.  69;  Birch  v.  Birch,  8 

*  Abraham  v.  Abraham,  19  Out.  P.  D.  163. 
356. 


§  938.] 


THE   DECEEE    FOE   ALIMONY. 


901 


claim  may  be  secured  by  the  attachment  of  the  husband's 
property.^ 

The  wife  as  a  special  creditor  of  the  husband  is  within  the 
protection  of  the  statute  against  fraudulent  conveyances  and 
may  proceed  according  to  its  provisions.^  On  a  proper  show- 
ing of  the  fraud,  the  conveyance  wiU  be  set  aside  and  the 
property  of  the"  husband  will  be  declared  subject  to  the  de- 
cree for  maintenance  or  alimony.^  A  chattel  mortgage  may 
be  set  aside  when  given  to  defeat  a  decree  of  alimony,  and 
personal  property  may  be  made  subject  to  a  lien  for  ali- 
mony.''    The  conveyance  will  be  sustained  as  in  other  cases, 

Frakes  v.  Brown,  2  Blackf. 


1  See  statutes  in  Daniels  v.  Lind- 
ley,  44  la.  567;  Daniels  v.  Morris,  54 
la.  369;  Twing  v.  O'Mera,  59  la. 
326;  Downs  v.  Flanders,  150  Mass. 
92;  Sewall  v.  Sewall,  139  Mass.  157; 
Sewall  V.  Sewall,  130  Mass.  201; 
North  V.  North,  39  Mich.  67;  Ains- 
woi-th  V.  Ains  worth,  37  Ga.  627; 
Farr  v.  Buckner,  32  Ind.  382;  Beck- 
neU  V.  Becknell,  110  Ind.  42;  Harsh- 
berger  v.  Harshberger,  26  la.  503; 
KeUer  v.  Keller  (Ind.),  38  N.  E.  337. 
The  court  may  order  funds  held  in 
trust  for  the  husband  paid  to  the 
wife.  Thompson  v.  Thompson,  52 
Hun,  456.  The  husband's  wages 
are  subject  to  garnishment.  Bates 
V.  Bates,  74  Ga.  105. 

^  Livermore  v.  Boutelle,  77  Mass. 
(11  Gray),  217;  Chase  v.  Chase,  105 
Mass.  385;  Bailey  v.  Bailey,  61  Me. 
361;  Plunkett  v.  Plunkett,  114  Ind. 
484;  Wetmore  v.  Wetmore,  5  Or. 
469;  Lott  v.  Kaiser,  61  Tex.  665; 
Morrison  v.  Morrison,  49  N.  H.  69; 
Turner  v.  Turner,  44  Ala.  438;  Boils 
V.  Boils,  41  Tenn.  (1  Coldw.)  284; 
Brooks  V.  Caughran,  40  Tenn.  464; 
Bouslough  V.  Bouslough,  68  Pa. 
495;  Carithers  v.  Venable,  52  Ga. 
389;   Feighley  v.  Feighley,  7  Md. 


538; 
295. 

"Damon  u.  Damon,  28  Wis.  510; 
Draper  v.  Draper,  68  IlL  17;  Twell 
V.  Twell,  6  Mont.  19,  and  cases  cited; 
Barker  v.  Dayton,  28  Wis.  368; 
Varney  v.  Varney,  54  Wis.  422; 
Foster  v.  Foster,  56  Vt.  540;  Boog 
V.  Boog,  78  la.  524;  Pickett  v.  Garri- 
son, 76  la.  347;  Springfield  Ins.  Co. 
V.  Peck,  102  111.  265;  Atkins  v.  At- 
kins, 18  Neb.  474;  Barrett  u  Barrett, 
5  Or.  411;  Odom  v.  Odom,  36  Ga. 
286;  Janvxin  v.  Janvrin,  60  N.  H. 
169;  Janvrin  v.  Curtis,  62  N.  H.  312; 
Tyler  v.  Tyler,  126  la  525;  Foster 
V.  Foster,  56  Vt.  540;  Green  v. 
Adams,  59  Vt.  602, 10  A.  742;  John- 
son V.  Johnson  (Ky.),  2  S.  W.  487; 
Gregory  v.  Fillbeck,  12  Col.  379; 
Eeeg«.  Burnham,  55  Mich.  39;  Way 
V.  Way,  67  Wis.  662;  Jenny  v.- 
Jenny,  24  Vt.  324;  Jiggetts  v.  Jig- 
gets,  40  Miss.  718;  Nix  v.  Nix,  57 
Tenn.  (10  Heisk.)  546;  Dugan-  v. 
Trisler,  69  Ind.  553 ;  Stuart  v.  Stuart, 
123  Mass.  370;  Dutton  v.  Jackson,  2 
Del.  Ch.  86;  Prouty  v.  Prouty,  4 
Wash.  174;  Scott  v.  Magloughlin, 
133  111.  33,  24  N.  E.  1030. 

*  Gardenhire  v.  Gardenhire  (Okl.), 
37  P.  8l3. 


m-2 


THE  DECEEK  FOE  ALIMONY. 


[§  938. 


if  made  to  one  who  purchases  in  good  faith  and  without  in- 
tent to  defraud  the  wife.^ 

A  conveyance  of  real  estate  by  both  husband  and  wife  to 
a  minor  child  several  years  before  the  divorce  suit  was  com- 
menced wiU  be  sustained  and  wi],l  not  be  set  aside  to  allow 
the  wife  alimony.^  The  wife  may,  in  the  suit  for  divorce, 
restrain  him  from  conveying  his  property  to  defeat  the  order 
for  alimony  which  may  be  rendered.'  Such  injunction  must 
continue  until  the  further  order  of  the  court,  and  should 
terminate  when  the  order  for  alimony  is  entered  and  pro- 
visions are  made  to  secure  its  payment.*  When  the  husband 
leaves  the  state  to  avoid  the  payment  of  alimony  the  court 
may  apply  the  income  of  a  trust  fund  payable  to  him  to  the 
payment  of  the  decree.^  Where  the  petition  specifically  de- 
scribes the  husband's  real  estate,  the  proceedings  are  con- 
structive notice  to  others  of  the  wife's  claim.'  But  in  an 
ordinary  suit  for  divorce  and  alimony  the  doctrine  of  Us 


1  Barrow  v.  Barrow,  18  Ind.  345 
Metzler  v.  Metzler,  99  Ind.  384 
Halleman  v.  Halleman,  65  Ga.  476 
Lamar  v.  Jennings,  69  Ga.  393 
Fields  V.  Fields,  3  Wash.  441,  37  P. 
367;  Faris  v.  Goins,  13  S.  W.  3. 

2  Bruner  v.  Bruner,  115  111.  40. 
SBusenbark    v.    Busenbark,    33 

Kan.  573;  Boils  v.  Boils,  41  Tenn. 
(1  Coldw.)  384;  Springfield  Inv.  Co. 
V.  Peck,  103  IIL  365;  Eetnington  v. 
Supr.  Court  of  San  Francisco,  69 
CaL  633, 11  P.  253;  Frakes  v.  Brown, 
3  Blackf.  394;  Gray  Bros.  v.  Gray, 
65  Ga.  193;  Wharton  v.  Wharton, 
57  la.  696;  Wilson  v.  Wilson, 
Wright  (Ohio),  139;  Edwards  v. 
Edwards,  Wright,  308;  Questel  v. 
Questel,  Wright,  493;  Johnson  v. 
Johnson,  Wright,  454;  Bascomb 
V.  Bascomb,  Wright,  633;  Eicketts 
V.  Ricketts,  4  Gill,  105;  Anshutz  v. 
Anshutz,  16  N.  J.  Eq.  163;  Johnson 


V.  Johnson,  59  Ga.  613;  Eoseu  Rose, 
11  Paige  Ch.  166;  Vanzant  v.  Van- 
zant,  33  lU.  536.  See  contra,  New- 
ton V.  Newton,  11  P.  D.  11;  Fein  v. 
Fein,  8  Wyoming,  161,  13  P.  79; 
Vincent  v.  Parker,  7  Paige,  65;  Nor- 
ris  V.  Norris,  37  Ala.  519;  Uhl  v. 
Irwin  (Okl.),  41  P.  376;  Irwta  v.  Ir- 
win (Okl.),  37  P.  548. 

4  Draper   v.  Draper,  68    111.  17; 
Erissman  v.  Erissman,  35  111.  136. 

5  Wetmore  v.  Wetmore,  8  Misc.  51. 
eSapp  V.  Wightman,  103  111.  150; 

Tolertonu  Willard,  30  0.  St.  579; 
Daniels  v.  Hodges,  87  N.  C.  97;  Wil- 
kinson V.  Elliott,  43  Kan.  590,  33  P. 
614;  Gilmore  v.  Gilmore,  5  Jones' 
Eq.  284;  Isler  v.  Brown,  66  N.  C. 
556;  Tabb  u  Williams,  4  Jones' Eq. 
353;  Berg  v.  Ingalls,  79  Tex.  533, 
15  S.  W.  579;  Almond  v.  Almond, 
4  Randolph  (Va.),  663;  Moore  v. 
Moore,  59  Tex.  54 


■§  939.]  THE   DECEEE    FOE   ALIMONY.  '903 

pendens  does  not  apply.^  The  decree  for  alimony,  however, 
is  a  judgment,  and  is  considered  as  having  the  same  effect  as 
other  judgments  for  the  payment  of  money.^  Where  judg- 
ments are  declared  by  statute  to  be  a  lien  upon  the  real  es- 
tate of  the  defendant  from  the  day  of  the  rendition  of  such 
judgment,  or  from  the  iirst  day  of  the  term  in  which  the 
judgment  is  rendered,  the  decree  for  alimony  will  become  a 
lien  upon  the  same  date  as  other  decrees.^  The  wife  is, 
therefore,  entitled  to  an  execution  against  lands  conveyed 
by  the  husband  after  the  decree  became  a  lien,  although 
the  pleadings  and  decree  contain  no  reference  to  any  spe- 
cific property.* 

§  939,  Attachment  for  coatempt. —  The  ecclesiastical 
court  did  not  enforce  its  orders  by  imprisonment  for  con- 
tempt; but  when  a  husband  refused  to  pay  the  ahmony 
awarded  he  was  excommunicated.  In  1813  excommunica- 
tion as  a  civil  process  was  forbidden,  and  it  was  provided 
that  where  a  party  was  in  contempt  a  writ  de  contumace 
capiendo  could  be  obtained  in  the  court  of  chancery.  But 
this  provision  is  too  recent  to  be  a  part  of  our  common 
law.  Later  the  divorce  court  was  empowered  to  enforce  its 
orders  by  proceedings  in  conformity  to  the  chancery  prac- 
tice.*   American  courts  having  jurisdiction  of  actions  for 

1  Powell  V.  Campbell,  30  Nev.  333,  provide  in  effect  that  the  mode  of 

•30  P.   156;   Brightman  v.  Bright-  proceedings  for  divorce  shall  be  as 

man,  1  E.  L 113;  Spencer  u  Spencer,  in  chancery,  and  that  "  decrees  in 

5  E.  I.  150;   HamUn  v.  Bevins,  7  chancery  shall,  from  the  time  of 

Ohio  (1st    part),   161;    O'Brien   v.  their  being  pronounced,  have  the 

Putney,  55  la.  293;  Scott  v.  Rogers,  force,  operation   and   effect  of  a 

77  la.  483,  43  N.  W.  377;  Houston  v.  judgment  at  law." 

Timmerman,  17  Or.  499,  31  P.  1037.  ^gee  Ex  parte  Holden,  13  C.  B. 

See  indefinite  description  in  Yen-  (N.  S.)  641;  Greenhill  v.  Greenhill, 

able  V.  Craig,  44  Ga.  437.  1  Curt.  Ec.  462;  Hamerton  v.  Ham- 

2Frakes  v.  Brown,  3  Blackf.  395.  erton,  1  Hag.  Ec.  33.    As  to  Eng- 

3  Keyes  v.  Scanlan,  63  Wis.  345,  lish  practice,  see  De  Lossy  v.  De 

■23  N.  W.  570.  Lossy,  15  P.  D.  115;  Alexander  v. 

*  Conrad  i!.  Everich,  50  O.  St.  476,  Alexander,  3  Swab.  &  T.  385 ;  Nich- 

criticising  ©lin  v.  Hungerford,  10  oils  v.  NichoUs,  2  Swab.  &  T.  637; 

Ohio,  268.    The  statutes  of  Ohio  Thomas  V.Thomas,  3  Swab.  &T.  64; 


904  THE  DECREE  FOE  ALIMONY.  [§  939,- 

divorce  have  also  the  inherent  power  to  enforce  their  orders 
by  contempt  proceedings,  or  by  such  other  adequate  means 
as  may  be  justified  by  the  general  jurisdiction  of  the  court,, 
and  its  procedure.^  "Without  such  power  our  courts  could 
not  maintain  their  authority  and  many  important  functions 
would  be  paralyzed. 

It  has  frequently  been  insisted  that  a  decree  for  alimony 
is  in  fact  a  debt,  and  therefore  payment  should  not  be  en- 
forced by  attachment  for  contempt  where  the  constitution 
prohibits  imprisonment  for  debt.  But  it  is  uniformly  held^ 
and  such  is  the  true  doctrine,  that  the  decree  for  alimony 
is  an  order  of  the  court  to  the  husband  compelling  him 
to  support  his  wife  by  paying  certain  sums,  and  thus  per- 
form a  public  as  well  as  marital  duty.  Such  decree  is. 
something  more  than  an  ordinary  debt  or  judgment  for 
money.  It  is  a  personal  order  to  the  husband,  similar  to  an 
order  of  the  court  to  one  of  its  officers  or  to  an  attorney. 
The  imprisonment  is  not  alone  to  enforce  the  payment  of 
money  but  to  punish  the  disobedience  of  a  party ;  and  the' 
order  is  not,  therefore,  a  debt,  within  the  meaning  of  the 
constitution.^  It  is  sometimes  held  that  where  the  statute^ 
provides  for  execution  and  other  processes  for  the  coUectioni 
of  alimony,  that  imprisonment  for  contempt  cannot  be  re- 
sorted to  as  an  additional  remedy.'    But  the  correct  inter- 

Davies  w.  Davies,  2Swab.  &  T.437;  Carlton  v.  Carlton,    44    Ga.    216;. 

Bremner  v.  Bremner,  3  Swab.  &  T.  Wightman  v.  Wightman,  45  IlL. 

378;  Busby  v.  Busby,  3  Swab.  &  T.  167;  Ballard  v.  Caperton,  3  Meto. 

383;  Dickens  v.  Dickens,  3  Swab.  &  (Ky.)  412;  Lewis  v.  Lewis,  80  Ga.. 

T.  521 ;  Pearson  u.  Pearson,  3  Swab.  706;    Grimm  v.   Grimm,   1    E.   D,. 

&  T.  546;  Hepworth  v.  Hepworth,  Smith,  100:  Pain  v.  Pain,  80  N.  C_ 

3  Swab.  &  T.  414;  HoUand  v.  Hoi-  333;  Sheafe  v.  Sbeafe,  36  N.  H.  155; 
land,  4  Swab.  &  T.  78;  Parr  v.  Parr,  Andrew  v.  Andrew,  62  Vt.  495,  20 

4  Swab.  &  T.  229;  Watts  v.  Watts,  A.  817.    See  opinion  by  Cooley,  J.,. 
4  Swab.  &  T.  274.  Stellar  v.  Stellar,  35  Mich.  159.    But 

1  Andrews  v.  Andrews,  63  Vt.  495,  see  contra,  Coughlin  v.  Ehlert,  39^ 
28  A.  17;  Curtis  v.  Gordon,  63  Vt.  Mo.  385.  Effect  of  this  provisions 
340,  20  A.  820.  in  contempt  cases,  see  Blake  v.  P., 

2  £'a;  ^arte  Perkins,   18  Cal.   60;  80111.11. 

31urray  v.  Murray,   35    Fed.  496;        'Lansing  u  Lansing,  4  Lans.  377^ 


§  939.]  THE   DECEEE   FOB   AUMONT.  905- 

pretation  is  that  the  statute  conferring  additional  remedies- 
did  not  deprive  the  courts  of  their  inherent  power  to  enforce 
such  orders.^  In  Illinois  it  is  held  that  where  the  payments  ar& 
secured  the  husband  is  not  liable  to  attachment  for  contempt^ 
such  proceeding  being  harsh  and  unnecessary.^  In  New 
York  the  moving  party  is  required  to  show,  not  only  that 
the  husband  has  refused  to  comply  with  the  order,  but  also 
that  the  payment  cannot  be  enforced  by  execution  or  seques- 
tration, or  a  resort  to  the  securities.'  And  the  order  com- 
mitting for  contempt  for  the  non-payment  of  alimony  must 
be  an  adjudication  that  the  refusal  to  make  the  payments 
demanded  defeated  or  prejudiced  the  rights  of  the  other 
party,  and  it  must  further  appear  that  the  payments  cannot 
otherwise  be  enforced.''  The  husband  is  guilty  of  contempt 
not  only  for  refusal  to  pay  temporary  alimony  and  perma- 
nent maintenance,  but  also  attorney  fees,''*  fees  of  referee 
and  stenographer,"  and  the  cost  of  commitment,  but  not  the 
ordinary  costs  of  the  suit  for  divorce.' 

In  those  states  where  it  is  held  that  a  separate  suit  for 
maintenance  may  be  maintained  without  seeking  a  divorce, 
the  decree  may  be  enforced  by  contempt  proceedings.    The 

reversing  41  How.  Pr.  248;  Gane  v.  Isaacs,  10  Daly,  306;  Eahl  v.  Rahl, 

Gane,  13  J.  &  S.  355,  overruled  in  14  Wk.  Dig.  560;  Eyer  v.  Ryer,  67 

Freeman  v.  Freeman,  8  Ab.  N.  C.  How.  Pr.  369. 

174:  Baker  v.  Baker,  23  Hun,  356.  ■>  Whitney  v.  Whitney,  11  N.  Y. 

See  statute  in  Segear  v.  Segear,  23  Supp.  583,  19  Civil  Pro.  265;  In  re 

Neb.  306;  Jn  re  Fanning,  40  Minn.  4;  Sims,  11  N.  Y.  Supp.  211,  57  Hun, 

North  V.  North,  39  Mich.  67.  433;  Mendel  v.  Mendel,  4  N.  Y.  St, 

1  Staples  V.  Staples  (Wis.),  58  N.  Rep.  556;  Mahon  v.  Mahon,  18  J.  & 
W.  1036;  Strobridge  v.  Strobridge,  S.  92;  In  re  Swenarton,  40  Hun,  41, 
21  Hun,  288;  Park  v.  Park,  18  Hun,  5  Ward  v.  Ward,  6  Ab.  (N.  S.)  79, 
466;  s.  C,  80  N.  Y.  156.  See  contra,  Branth   v.  Branth,  36 

2  Andrews  v.  Andrews,  69  111.  609.  N.  Y.  St.  628. 

See  contra,  McSherry  v.  McSherry,  6  Mahon  v.  Mahon,  5  Civil  Pro. 
49  111.  Ap.  90.  58.     See,  also.  People  u  Grant,  13 

3  See    construction    of    code    in    Civil  Pro.  183. 

Cockefair  v.  Cockefair,  23  Ab.  N.  C.  'Weil  v.  Weil,  18  Civil  Pro.  241, 
219,  7  N.  Y.  Supp.  170;  Sandford  v.  10  N.  Y.  Supp.  627;  Jacquin  v.  Jao- 
Sandford,  44  Hun,  363;  Isaacs  ».  quin,  36  Hun,  378;  Rodman  v.  Rod- 
Isaacs,  61  How.  Pr.  869;   Isaacs  v.  man,  24  Wk.  Digest,  473. 


©06  THE  DECREE  FOE  ALIMONY.  [§  939. 

inherent  power  of  the  court  in  such  cases  is  the  same  as  if 
the  proceedings  were  for  divorce.^  The  exercise  of  such 
power  does  not  violate  the  provision  of  the  constitution  of 
the  United  States,  that  no  person  shall  be  deprived  of  his 
liberty  without  due  process  of  law.'^ 

Attachment  for  contempt  is  a  harsh  and  severe  remedy. 
It  shoold  be  confined  to  cases  where  the  refusal  of  the  hus- 
band is  contumacious,  showing  a  resolve  to  disobey  or  defeat 
the  order  of  the  court.'  The  imprisonment  should  not  be 
ordered  when  it  appears  that  the  husband  has  failed  to  com- 
ply with  the  order  on  account  of  his  inability  from  business 
■misfortunes,  lack  of  health  or  employment,  or  other  exten- 
uating circumstances.*  The  doctrine  of  res  judicata  should 
.apply  to  the  question  of  the  husband's  ability  to  comply 
with  the  order.  He  should  not  be  heard  on  this  question 
at  every  stage  of  the  case.  "When  the  court,  after  hearing 
the  evidence,  fixes  the  amount  of  the  alimony,  the  order  is 
final,  and  the  husband's  remedy  is  by  appeal.  If  his  inabil- 
ity is  due  to  subsequent  events  his  remedy  is  by  motion  to 
reduce  the  amount,  and  by  appeal  from  this  order  if  not 
satisfactory.*  It  has  been  held  that,  on  motion  to  show 
cause  why  he  should  not  be  committed  for  failing  to  com- 
ply with  the  order  of  the  court,  the  husband  cannot  show, 
in  opposition  to  the  motion,  that  his  pecuniary  circumstances 
.are  such  as  to  render  him  unable  to  make  the  required  pay- 
ments.' But  it  would  seem  that  any  facts  occurring  after 
the  date  of  the  order  for  alimony  might  be  shown,  since 

iMurrayv.  Murray,  84  Ala.  363,  WaUen  v.  WaUen,  11  Pa.  Co.  Ct. 

4  So.  239.  41.    See,  also,  West  v.  West,  11  Pa. 

2  Murray  v.  Murray,  35  Fed.  496,  Co.  Ct.  354;  In  re  Clark,  20  Hun, 

following  above.  551;  Gerard  v.  Gerard,  2  Barb.  Ch. 

1  Staples  V.  Staples  (Wis.),  58  N.  73;  Pritohard  v.  Pritchard,  4  Ab. 

W.  1036;  Slade  v.  Slade,  106  Mass.  N.   Gas.   298;    Eyckman  v.  Eyok- 

•499.  man,  34  Hun,  235. 

<  Noland  v.  Noland,  39  Hun,  630;  « State  v.  Dist.  Ct.,  14  Mont.  396, 

Holtham  v.  Holtham,  26  N.  Y.  Supp.  86  P.  757. 

763;  Spencer  v.Lawler,  79  CaL  215;  egtrobridge    v.    Strobridge,    21 

Galland  v.  GaUand,  44  CaL  475;  Hun,  288. 


§  939.]  THE   DECEEE    FOE   ALIilUXT.  907 

■such  facts  Avere  not  before  the  court  at  that  time,  and  may 
be  such  as  will  excuse  the  husband  from  further  payments.^ 
The  proceeding  is  quasi-criminal,  and  due  notice  of  the 
award  must  be  given  and  a  demand  made  upon  the  husband.^ 
Such  demand  and  notice  may  be  unnecessary  under  some 
circumstances,  as  where  the  husband  is  in  court,  or  has  no- 
tice of  the  order  and  refuses  to  comply  with  it.'  The  notice 
should  be  served  upon  the  husband,  but  in  some  cases  notice 
to  his  attorney  will  be  sufficient.^  The  husband  must  be 
allowed  a  hearing  on  the  order  to  show  cause  and  allowed 
to  show  any  circumstance  which  teuds  to  excuse  him  or  pre- 
sents a  ground  for  reducing  the  amount  of  alimony.  The 
order  of  the  court  refusing  to  reduce  the  amount  of  alunony 
and  committing  the  defendant  to  prison  is  a  final  order  from 
which  an  appeal  will  lie.*  And  the  reviewing  court  may 
examine  all  the  evidence  and  order  a  reduction  of  the  amount.' 
Bat  the  evidence  cannot  be  reviewed  upon  habeas  corpus  or 
certiorari?  The  appeal  from  the  order  of  commitment  does 
not  stay  proceedings  to  enforce  instalments  of  alimony  which 
subsequently  become  due.* 

lO'Callaghan  v.  O'Callaghan,  69  Fairchild  v.  Fairchild,  13  A.  599, 

.111.  552.  not  reported  in  N.  J.  Equity  Re- 

2  Potts  V.  Potts,  68  Micli.  492,  36  ports.  See,  also,  Rapalje  on  Con- 
N.  W.  240;  Edison  v.  Edison,  56  tempt,  §  104,  citing  Pitt  u  David- 
Mich.  185;  Sanchez  v.  Sanchez,  31  son,  37  N.  Y.  234;  s.  C,  37  Barb.  97; 
Fla.  346;  Sandford  v.  Sandford,  44  Fisher  v.  Raab,  56  How.  Pr.  218. 
Hun,  563;  Stahl  v.  Stahl,  13  N.  Y.  sg.  v.  Dent,  29  Kan.  416,  citing 
Supp.  854;  Brown  v.  Brown,  23  Whittem  v.  S.,  36  Ind.  196. 
Mich.  299;  Ryckman  v.  Ryckman,  6GrayleyuGrayley,31How.475; 
33  Hun,  193;  Zimmerman  v.  Zim-  Pinckard  v.  Pinckard,  23  Ga.  286; 
merman,  113  N.  0.  432, 18  S.  E.  334.  Haines  v.  Haines,  35  Mich.  138. 
For  procedure  consult  Petree  v.  P.,  See  contra,  Russell  v.  Russell,  69 
40  111.  334  Me.  336. 

3 Potts  V.  Potts,  68  Mich.  492,  36  ''Ex  parte  Wilson,  73  Cal.  97; 

N.  W.  340;  ,State  v.  Dist.  Ct.,  43  Ex  parte  Cottrell,  59  Cal.  420;  In 

Minn.  40,  43  N.  W.  686;  Ex  parte  re  Bissell,  40  Mich.  63;  "Wright  v, 

Robinson,   71    CaL   608;    Davis   v.  Wright,  74  Wis.  439;  State  u  Dist. 

Davis,  83  Hun,  500.  Ct.,  14  Mont.  396,  36  P.  757.    See 

^  Zimmerman  v.  Zimmerman,  14  In  re  Spencer,  83  Cal.  110. 

N.  Y.  Supp.  444^  36  Ab.  N.  C.  366;  8  Ross  v.  Griffin,  53  Mich.  5. 


908  THE   DECEEE    FOE   ALIMONY.  [§  940. 

On  application  to  release  the  husband  from  imprisonraent,, 
his  inability  to  comply  with  the  order  of  the  court  may  b& 
niade  an  issue,  and  the  question  tried  again  as  of  the  date  of 
the  application.!  Upon  proof  of  inability  to  make  the  re- 
quired payments  the  defendant  will  be  discharged.^  When 
he  has  been  discharged  on  account  of  his  inability  to  comply 
with  the  order,  he  cannot  be  imprisoned  again  under  another 
order  because  of  his  contempt  in  failing  to  pay  sums  of  money 
afterwards  becoming  due  under  the  same  judgment.^ 

§  940.  Writ  ne  exeat  regno. —  The  ecclesiastical  court 
could  not  restrain  the  husband  from  leaving  the  kingdom, 
nor  could  it  compel  the  husband  to  find  bail.  After  the  de- 
cree for  alimony  Avas  granted,  if  the  husband  sought  to  avoid 
its  payment  by  leaving  the  country,  the  court  of  chancery 
AFOuld  restrain  him  by  issuing  the  writ  ne  exeat  regno^  The 
writ  would  not  be  issued  before  the  decree  was  rendered,  and 
there  was  no  remedy  while  the  case  was  pending  in  the  trial 
court  or  on  appeal.'  American  courts  having  jurisdiction  to 
render  decrees  of  divorce  are  generally  courts  of  equity,  or 
of  common-law  jurisdiction,  and  sometimes  exercise  both 
jurisdictions  combined.  Our  courts  may  issue  this  writ, 
unless  some  other  method  is  provided  by  statute,  or  it  is  pro- 
hibited by  some  provision  of  the  constitution  or  the  statutes- 
against  imprisonment  for  debt.     The  true  doctrine  is,  that 

1  Lansing  v.  Lansing,  41  How.  Pr.  ^  Shaftoe  v.  Sliaf toe,  7  Ves.  171 ; 

248;   Ryer  v.  Byer,  33  Hun,  116;  Dawson   v.   Dawson,  7  Ves.   173; 

McClung  V.  MoClung,  33  N.  J.  Efl.  Haflfey  u  HaflEey,  14  Wis.  361;  Head 

462;  In  re  Ryckman,  36  Hun,  646.  v.  Head,  3  Atk.  295;  Read  v.  Read, 

2 Nixon  V.  Nixon,  15  Mont.  6,  37  1  Cas.  Ch.  115;  Oldham  v.  Oldham, 

P.  839.          ,                                  '  7  Ves.  410;  Street  V.  Street,  Turn. 

•Winton  u  Winton,  53  Hun,  4;  &  R.  323;  Cook  v.  Ravie,  6  Ves. 
s.  C,  5  N.  Y.  Supp.  537,  affirmed,  117  283;  Anonymous,  3  Ves.  Sen.  489; 
N.  Y.  633.  For  minor  points  con-  Anonymous,  3  Atk.  201 ;  Smith- 
suit,  also,  Ex  parte  Allen,  6  Allen  son's  Case,  2  Vent.  345;  Ex  parte 
(N.  B.),"398;  Gott  v.  Gott,  10  Grant  Whitmore,  1  Dick.  143. 
Ch.  543;  Mackphersonu  Mackpher-  ^Coglar  v.  Coglar,  1  Ves.  Jr.  94?. 
son,  3  Chy.  Chamb.  222;  Needham  Street  v.  Street,  1  Turn.  &  Russ. 
V.  Needham,  39  Grant,  117;  Purcell  333, 
V.  Purcell,  4  Hen.  &  Munf.  507. 


§  940.]  THE    DECREE    FOE   ALIMONY.  909 

■our  courts  are  not  deprived  of  the  jurisdiction  to  issue  this 
writ  by  such  provisions  in  cases  where  the  court  can  render 
a  personal  judgment  against  the  defendant,  which  can  be 
enforced  by  attachment  for  contempt,  and  where  he  must 
be  personally  present  to  answer  its  decree,  but  not  in  actions 
for  a  mere  money  demand.^  To  protect  the  wife's  interests, 
and  to  secure  the  payment  of  alimony,  our  courts  may  issue 
the  writ  as  soon  as  the  bill  is  filed,  where  the  wife  has  reason 
to  believe  that  the  husband  is  about  to  leave  the  state  to 
.avoid  paying  any  alimony  which  may  be  awarded  her.^  The 
"writ  may  issue  at  any  time  after  decree.^  The  aifidavit  of 
the  wife  alone  is  sufficient ;  and  it  should  show  that  the  hus- 
band is  about  to  leave  the  state,  and  that  his  departure  will 
defeat  her  alimony.*  In  some  cases  her  affidavit  that  she 
Relieves  the  defendant  is  about  to  remove  from  the  state 
win  be  sufficient,  though  ordinarily  the  fact  must  be  estab- 
lished by  a  positive  affidavit.'  When  the  writ  is  issued,  it 
must  fix  the  amount  of  security  which  will  be  required  of 
the  husband.^  The  husband  may  be  discharged  upon  his 
paying  into  court  the  amount  required.  But  the  fact  that 
lie  has  given  security  wiU  not  permit  him  to  leave  the  state. 
If  it  appears  that  the  plaintiff  has  no  case,  or  that  he  is  not 
going  out  of  the  state,  the  defendant  will  be  released ;  but 

'Macolm  V.  Andrews,  68  IlL  100;  10  N.  J.  Eq.  138.    See  practice  in 

Hx  parte    Barker,    49    Cal.    465;  Taber  v.  Taber,  16  N.  Y.  Sup.  613; 

Adams  v.  Whitcomb,  46  Vt.  708;  s.  c,  60  N.  Y.  Supr.  65;  Bouoioault 

Brown  v.  HaflE,  5  Paige,  334;  Beck-  v.  Boucicault,  59  How.  Pr.  131,  31 

with  V.  Smith,  54  Barb.  313;  Dean  Hun,  481;  Hammond  v.  Hammond, 

V.  Smith,  23  Wis.  483;  Bonesteel  v.  1  Clark  Ch.  151. 

Bonesteel,   38  Wis.  345;   Meyer  ■«.  3  gge  note,  Lyon  w  Lyon,  31  Conn. 

Meyer,  35  N.  J.  Eq.  38;  Samuel  v.  185. 

,  Wiley,  50  N.  H.  353.    See  action  for  « Yule  v.  Yule,  10  N.  J.  Eq.  138. 

separate  maintenance,  Harper  v.  *  Collinson  v.  CoUinson,  18  Ves. 

Booker,   53  IlL   370;    Jamieson  v.  353;  Yule  v.  Yule,  10  N.  J.  Eq.  138. 

Jamieson,  53  How.  Pr.  113.  See  affidavit   and  proceedings  in 

2McGree    v.  McGee,    8    Ga.  395;  Gardiner  v.  Gardiner,   3  Abb.  N. 

Prather  v.  Prather,  4  Des.  33 ;  DevaU  C.  1. 

V.  Devall,  4  Des.  79;  Bylandt  v.  'Bj-  6  Denton  v.  Denton,  1  Johns.  Ch. 

landt,  6  N.  J.  Eq.  38;  Yule  v.  Yule,  364. 


910 


THE   DECEEE   FOE   ALIMONT. 


[§  9«^ 


the  court  may  require  him  to  give  security  that  he  will  an- 
swer such  sum  as  may  be  awarded  against  him.' 

§  941.  Other  means  of  enforcing  payment.—  The  order 
for  permanent  maintenance  or  alimony  may  be  enforced  by 
methods  other  than  attachment  for  contempt.  Sequestra- 
tion may  be  resorted  to  where  the  husband  has  available 
property.^  In  some  states  the  various  instalments  of  ali- 
mony as  they  become  due  may  be  satisfied  by  execution  and 
garnishment.'  The  decree  is  often  a  lien  upon  the  real  es- 
tate of  the  husband  by  virtue  of  the  statute,  as  such  decree 
is  like  other  judgments.^  But  in  some  states  the  decree  is 
not  a  lien  unless  made  so  by  the  terms  of  the  decree.^  The 
power  to  secure  the  payment  of  alimony  by  making  the 
decree  a  specific  lien  upon  the  husband's  real  estate  is  de- 
nied under  some  forms  of  the  statute."    The  decree  may 


1  For  further  questions  relating 
to  practice,  see  Daniel's  Chancery 
Practice,  1698. 

2  Stratton  v.  Stratton,  77  Me.  373; 
Hills  V.  Hills,  76  Me.  486;  Donnelly 
V.  Shaw,  7  Ab.  N.  Cas.  264;  Becker 
V.  Becker,  15  111.  Ap.  247;  Forrest  v. 
Forrest,  9  Bosw.  686 ;  Foster  v.  Town- 
send,  3  Ab.  N.  Cas.  29;  Blenkinsopp 
V.  Blenkinsopp,  13  Beav.  586;  Mint- 
zer  V.  Mintzer,  10  W.  N.  C.  336.  See, 
also,  Clinton  v.  Clinton,  1  P.  &  M. 
215;  Cook  v.  Cook,  15  P.  D.  116; 
Allen  V.  Allen,  10  P.  D.  187. 

3  Taylor  v.  Gladwin,  40  Mich.  332; 
Robinson  v.  Robinson,  79  Cal.  511, 
21  P.  1095;  Van  Cleave  v.  Bucher, 
79  Cal.  600,  21  P.  954;  Piatt  v.  Piatt, 
9  Ohio,  37;  Yelton  v.  Handley,  28 
IlL  Ap.  640;  Foster  v.  Foster,  130 
Mass.  189;  Morton  v.  Morton,  4 
Cush.  518;  Newcomb  v.  Newcomb, 
12  Gray,  28;  Chase  v.  Ingalls,  97 
Mass.  534;  Weaver  v.  Weaver,  7 
Utah,  396;  Fletcher  u  Henley,  18 
La.  150;  Compton  v.  Arial,  9  La. 
An.  496. 


*  Sapp  V.  Wightman,  108  111.  150; 
Kurtz  V.  Kurtz,  38  Ark.  119;  Stoy 
V.  Stoy,  41  N.  J.  Eq.  370;  Keys  v. 
Scanlon,  63  Wis.  345;  Wilson  v. 
Wilson,  40  la.  330;  Segear  v.  Segear, 
33  Neb.  806.  As  to  enforcement  of 
decree  against  a  homestead,  see 
Homestead,  §  1031. 

SErrisman  v.  Errisman,  35  111. 
186;  Wightman  v.  Wightman,  45 
lU.  167;  Perkins  v.  Perkins,  16  Mich. 
162;  Walsh  v.  Walsh,  61  Mich.  554; 
Sesterhen  v.  Sesterhen,  60  la.  801; 
Byers  v.  Byers,  21  la.  268;  Harsh- 
berger  v.  Harshberger,  36  la;  503; 
Min  Young  v.  Min  Young,  47  O.  St. 
501;  Johnson  v.  Johnson,  135  111. 
510. 

SQlin  V.  Hungerford,  10  Ohio, 
268;  Kurtz  v.  Kurtz,  38  Ark.  119; 
Casteel  v.  Casteel,  38  Ark.  477.  In 
Nebraska  coitipare  Swansen  v. 
Swansen,  12  Neb.  210,  and  Brother- 
ton  V.  Brotherton,  14  Neb.  1S6,  with 
Segear  u -Segear,  28  Neb.  306;  Ny- 
gren  v.  Nygren  (Neb.),  60  N.  W. 
885.    Under  such  statute  it  is  a 


§  941.] 


THE   DECEEE    FOE   ALIMONT. 


911 


order  the  land  sold  for  the  payment  of  alimony.^  The  court- 
has  power  to  compel  the  husband  to  give  sufficient  secu- 
rity for  the  payment  of  alimony .^  If  the  husband  is  about 
to  dispose  of  his  property  and  leave  the  state  to  avoid  the 
payment  of  temporary  alimony,  he  may  be  enjoined  from 
doing  so  and  a  receiver  may  be  appointed  to  take  charge  of 
the  property.'  Where  the  husband  does  not  pay  taxes,  and 
interest  upon  debts  secured  by  mortgage  on  his  property, 
the  court  may  appoint  a  receiver  to  take  charge  of  the 
rents  and  profits  and  apply  them  to  claims  against  the  prop- 
erty and  to  the  payment  of  alimony.* 

The  wife  may  maintain  a  suit  on  a  decree  for  alimony,  but 
the  courts  are  not  agreed  upon  the  form  of  the  action.  In 
some  states  scire  facias  will  lie.^  But  in  other  states  debt  is- 
the  proper  form  of  action.*    The  action  is  generally  in  a 


harmless  error  to  make  the  decree 
a  specific  lien,  as  it  will  continue 
to  be  a  general  lien  upon  a  home- 
stead which  can  be  sold  under  an 
ordinaiy  execution.  Mahoney  v. 
Mahoney  (Minn.),  61  N.  W.  334 

iMcBee  v.  McBee,  48  Tenn.  (10 
Heisk.)  558. 

2  Wright  V.  Wright,  74  Wis.  439, 
43  N.  W.  145;  Park  v.  Park,  18  Hun, 
466,  80  N.  Y.  156;  Sapp  v.  Wight- 
man,  103  m.  150;  Galusha  v.  Galu- 
sha,  108  N.  Y.  114;  Gane  v.  Gane, 
46  N.  Y.  Supr.  31§;  Howarth  v. 
Howarth,  11  P.  D.  68;  Harper  v. 
Eooker,  52  111.  370;  Reiffenstein  v. 
Hooper,  36  U.  0.  Q.  B.  395;  Rice 
V.  Rice,  13  Ind.  563;  Pratherc.  Pra- 
ther,  4  Des.  33;  Errisman  v.  Erris- 
man,  25  111.  186.  Such  order  may 
compel  the  husband  to  give  secu- 
rity by  mortgage  on  property  in 
another  state.  Alderson  v.  Alder- 
son,  84  la.  198,  50  N.  W.  671.  But 
speciflc  performance  of  such  order 
must  be   enforced  by  the   court 


which  made  the  order,  and  cannot 
be  enforced  by  a  suit  in  the  state- 
where  the  lands  are  situated.  Bul- 
lock V.  Bullock  (N.  J.  Eq.),  37  A.  435i 

» Carey  v.  Carey,  3  Daly,  424.  The 
injunction  and  lis  pendens  may  be 
set  aside  to  permit  the  husband  t» 
mortgage  the  property  to  pay  the 
decree  for  alimony.  White  v. 
White,  97  Cal.  604. 

<  Holmes  v.  Holmes,  39  N.  J.  Eq, 
(3  Stew.)  9;  Murray  u  Murray,  84 
Ala.  363;  Forrest  v.  Forrest,  9  Bos, 
686. 

SKnapp  V.  Knapp,  134  Mass.  353  j 
McCracken  v.  Swartz,  5  Or.  62,  34 
A.  670;  Hewitt  v.  Hewitt,  1  Bland, 
101 :  Morton  v.  Morton,  4  Gush.  518 ; 
Chestnut  v.  Chestnut,  77  111.  346  j 
Hansford  v.  Van  Auken,  79  Ind. 
303;  Prescott  u  Prescott,  63  Me, 
438. 

<*  Compare  Elmer  v.  Elmer,  150 
Pa.  205,  34  A.  670;  and  Clark  v. 
Clark,  6  Watts  &  S.  85;  Howard  v, 
Howard,  15  Mass.  196. 


■912  THE   DECEEE   FOE   ALIMONY.  [§§  94:2,  943. 

court  of  equity,  since  the  decree  is  directed  by  a  ooui;t  of 
equity  and  cannot  properly  be  enforced  in  an  action  at  law.^ 

§  942.  Suit  on  foreign  decree  for  alimony.— A  decree 
for  alimony  rendered  by  a  foreign  court  may  be  enforced  in 
this  country  by  the  same  process  as  a  decree  obtained  in  an- 
other state.  The  wife  may  maintain  a  suit  in  equity  to  re- 
cover the  arrears  of  alimony.  It  would  seem  that  when  a 
decree  is  rendered  upon  a  foreign  decree  that  the  court  could 
exercise  any  of  its  powers  as  a  court  of  equity,  and  enjoin 
the  husband  from  conveying  his  property,  compel  him  to 
give  security  for  the  alimony  to  become  due,  and  enforce  the 
payment  of  the  decree  by  sequestration  and  other  processes 
of  courts  of  equity.  But  in  JS'ew  York  it  is  held  that  an  ac- 
tion at  law  to  recover  instalments  of  alimony  as  they  accrue 
is  the  plain  and  adequate  remedy,  and  that'  equity  can  afford 
no  further  rehef.  "  It  is  said  the  defendant  may  depart  or 
make  away  with  his  property.  But  against  that  contingency 
the  ancillary  processes  of  arrest,  attachment  and  injunction 
afford  a  sufficient  safeguard.  It  is  said  again  that  still  the 
plaintiff  has  no  security  for  future  alimony.  But  the  French 
decree  does  not  sequestrate  the  defendant's  property ;  and 
in  the  absence  of  any  lien  or  other  specific  claim  on  such 
property  he  has  a  right  to  dispose  of  it,  and  plaintiff's  reh- 
ance  is  on  his  personal  credit."  .  .  .  "The  lex  fori — the 
law  of  this  state  —  gives  effect  to  a  right  of  alimony  acquired 
abroad  only  by  an  action  for  its  recovery."  ^ 

§  943.  Suit  on  decree  for  alimony  rendered  in  another 
state. —  The  husband  cannot  escape  his  liability  under  a  de- 
cree for  alimony  by  leaving  the  state.  The  federal  courts 
or  the  courts  of  other  states  will  enforce  her  decree.'  It 
was  at  one  time  held  that  an  action  in  equity  to  enforce  a 
decree  for  alimony  rendered  in  another  state  could  not  be 

iVan  Buskirk  v.  Mulock,  3  Har-  ing   Barber   v.  Barber,    21    How. 

rison,  184;  Allen  v.  AUen,  100  Mass.  (U.  S.)  583. 

.373.  3  Van  Buskirk  v.  Mulock,  3  Har- 

2  "Wood  V.  Wood,  28  N.  Y.  Supp.  rison,  184    See,  contra,  Bullock  v. 

154,  7  Misc.  E.  (N.  Y.)  579,  criticis-  Bullock  (N.  J.),  37  A.  435. 


.§  943.]  THE   DECKEB    FOE   ALIMOHT.  913 

maintained  because  such  decree  was  not  a  fixed  judgment 
or  debt,  but  was  a  mere  adjudication  of  the  husband's  duty 
to  support,  and  consequently  subject  to  the  revision  of  the 
trial  court  at  any  time.^  But  this  ruling  is  not  followed  to 
.any  extent,  and  was  soon  after  discredited  in  a  subsequent 
proceeding  between  the  same  parties  in  the  federal  courts.' 
The  power  to  revise  the  decree  for  alimony  should  not  deter 
the  courts  of  other  states  from  granting  relief ;  for,  if  the 
decree  is  erroneous  or  oppressive,  the  husband  may  have 
the  same  revised  by  the  court  which  rendered  it.  Until  this 
is  done,  the  decree  stands  in  some  respects  as  an  erroneous 
decree,  and  is  otherwise  valid  if  the  court  in  which  it  was 
rendered  had  jurisdiction.  The  courts  of  other  states  can- 
not change  the  terms  of  the  decree.'  Nor  will  the  courts  of 
one  state  refuse  to  enforce  the  decree  of  another  because 
such  decree  was  rendered  in  an  action  for  alimony  without 
divorce  and  such  relief  could  not  be  obtained  within  the 
state.  It  is  nevertheless  a  judgment  of  another  state  and 
entitled  to  the  full  faith  and  credit  required  by  the  constitu- 
tion of  the  United  States,  although  alimony  without  divorce 
may  be  a  remedy  not  afforded  by  the  laws  of  the  state.^  In 
a  suit  upon  a  decree  for  alimony  rendered  in  another  state, 
the  jurisdiction  of  the  court  which  rendered  the  decree  maj^ 
be  questioned  and  the  action  dismissed  if  there  was  no  per- 
sonal service  upon  the  husband  and  he  did  not  enter  appear- 
ance.' If  for  any  reason  the  decree  for  alimony  is  erroneous, 
this  will  not  be  a  defense  to  an  action  on  such  decree  in 

iBarberu  Barber,  IChand.  (Wis.)  port  of  the    wife   after    a    child 

280.    Such  decree  is  not  merely  in-  reached  a  certain  age,  it  was  held 

terlocutory.    Dow  v.  Blake,  46  111.  that  the  Wisconsin  court  had  ex- 

Ap.  339;  S.  C,  148  lU.  76,  35  N.  E.  elusive  jurisdiction  to  determine 

761.  the  amount  of  such  support.    Al- 

2  Barber  u.  Barber,  21  How.  (U.  S.)  derson  v.  Alderson,  84  la.  198,  50 

583,  foUowed  in  Brisbane  v.  Dob-  N.  W.  671. 

son,  50  Mo.  Ap.  176.  ^  Stewart  v.  Stewart,  27  W.  Va. 

'In  an   action   to   foreclose   a  167. 

mortgage  in  Iowa,  given  to  secure  '  See  Rigney  v.  Eigney,  6  N.  Y. 

a  decree  of  alimony  rendered  in  Supp.  141,  reversed  127  N.  Y.  408, 

.  Wisconsin  for  the  reasonable  sup-  28  N.  E.  405. 
58 


914  THE   DECEEE   FOE   ALIMONY.  [§  943, 

another  state.  The  husband's  remedy  is  to  apply  to  the 
court  which  rendered  the  decree  to  have  the  same  vacated. 
Where  the  husband  obtained  an  absolute  divorce  in  Ken- 
tucky, and  afterwards  the  wife  obtained  a  decree  for  divorce 
and  alimony  in  Ohio,  she  may  enforce  the  decree  for  alimony 
against  the  lands  of  the  husband  in  Kentucky  if  the  Ohio 
court  had  jurisdiction,  although  the  Ohio  court  might  have 
erred  in  granting  aUmony  under  the  circumstances.' 

The  proceeding  to  enforce  a  decree  for  alimony  is  gen- 
erally a  suit  in  equity.  But  an  action  of  debt  will  also  lie- 
in  most  states.^  "The  amount  of  the  decree  and  all  the  un- 
paid instalments  may  be  recovered  as  if  the  decree  was  a, 
judgment  in  an  action  at  law,  although  the  courts  of  equity 
in  England  refused  to  enforce  more  than  the  arrears  of  ali- 
mony for  one  year  preceding  the  application  in  such  courts.' 

An  action  may  be  maintained  by  the  wife  against  the 
husband  in  the  federal  courts  to  enforce  the  payment  of 
arrears  of  alimony.  Federal  courts  have  no  jurisdiction  to- 
award  alimony,  but  derive  their  jurisdiction  in  such  cases 
from  the  general  jurisdiction  of  courts  of  equity.  Such 
courts  exercise  the  same  jurisdiction  as  the  chancery  court 
of  England,  which  would  enforce  the  payment  of  alimony. 
The  courts  also  have  jurisdiction  on  the  ground  that  the 
parties  reside  in  different  states,  whether  the  decree  is  an 
absolute  divorce  or  a  separation  from  bed  and  board.''  In 
either  case  the  wife  has  a  right  to  acquire  a  separate  dom- 
icile, and  the  suit  to  enforce  a  decree  for  alimony  is  a  con- 
troversy between  citizens  of  different  states.'*  The  jurisdiction 
of  the  federal  courts  is  well  illustrated  by  the  leading  case 
of  Barber  v.  Ba/rher^  The  wife  obtained  a  decree  for  ali- 
mony, and  for  separation  from  bed  and  board,  in  a  suit  in 
IsTew  York,  where  both  parties  were  domiciled.     The  hus- 

* 

1  Rogers  v.  Eogers,   15  B.  Mon.        ^\A. 

-364.  *  Barber  v.  Barber,  31  Ho-ve.  (U.  S.) 

2  Brisbane  v.  Dobson,  50  Mp.  Ap.    583. 

170;  Dow  V.  Blake,  148  IlL  76,  35  6  Bennett  v.  Bennett,  Deady,  399. 
N.  E.  761.  6  31  How.  (U.  S.)  583, 


§  943.]  THE   DECEEE   FOE   ALIMONY.  915 

band  refused  to  pay  the  alimony  awarded,  and  removed  to 
Wisconsin,  where  he  obtained  an  absolute  divorce  from  his 
wife,  who  remained  in  New  York.  The  wife  brought  suit 
in  Wisconsin  and  the  supreme  court  of  that  territory  held 
that  the  action  would  not  lie.  Subsequently  the  wife  brought 
a  suit  in  equity  in  the  circuit  court  of  the  United  States  for 
that  territory,  and  recovered  a  decree  against  the  husband, 
which  was  affirmed  on  appeal  to  the  supreme  court  of  the 
United  States.  The  decision  of  the  latter  court  affirms  the 
jurisdiction  of  the  federal  courts,  and  holds  that  the  Wis- 
consin decree  a  vinculo  did  not  affect  the  force  and  vaUdity 
of  the  decree  for  alimony  rendered  in  New  York.' 

1  This  case  is  followed  in  Cheever  v.  Wilson,  76  U.  S.  108. 


DIVISION  AND   KESTORATION   OF  PROP- 
ERTY. 


§  960.  In  generaL 
961.  Whether    the    property  al- 
lotted is  alimony. 
Division  of  property  by  di- 
vesting title. 
Division    of    property    by 
other  means. 


963. 


963. 


§  964  Enforcing  agreement  to  con- 
vey title. 

965.  How  the  property  is  divided. 

966.  Practice  in  the  division  of 

property. 


§  960.  In  general. —  The  status  of  a  wife,  divorced  for 
causes  arising  subsequent  to  the  marriage,  was  unknown  at 
the  common  law.  "When  an  absolute  divorce  is  granted  the 
wife  is  placed  in  a  new  position,  and  the  statute  must  au- 
thorize the  court  to  make  some  provision  for  her.  In  the 
absence  of  statute  our  courts  have  no  jurisdiction  or  com- 
mon-law power  to  grant  an  absolute  divorce,  or  to  grant 
farther  relief  after  such  divorce.  The  courts  have,  therefore, 
only  such  power  to  provide  for  the  wife  after  a  dissolution 
of  the  marriage  as  is  conferred  by  the  statutes.  The  legis- 
latures of  the  various  states  have  accordingly  authorized 
the  courts  to  give  the  wife  an  allowance  after  divorce,  and 
in  most  cases  have  called  this  allowance  alimony,  or  perma- 
nent alimony.  In  a  few  states  these  terms  have  been 
avoided ;  and  the  courts  have  been  authorized  to  provide 
for  the  wife  out  of  the  real  and  personal  estate  of  both  par- 
ties, or  to  divide  the  real  and  personal  estate.' 

When  an  absolute  divorce  is  granted  the  policy  of  our 
law  encourages  subsequent  marriages,  and  does  not  hold 
the  property  of  the  parties  with  a  view  to  reconciliation  and 
reunion.     The  common  law  proceeded  upon  an  entirely  dif- 


1  See  Parsons  v.  Parsons,  9  N.  H.  309  (1888), 


§  960.]  DITISION   Am)   EESTOEATION   OF   PEOPEETT.  917 

ferent  policj.    It  contemplated  a  reunion,  and  granted  the 
wife  a  liberal  allowance  for  her  support  until  this  was  con- 
summated.    No  property  was  disturbed  and  no  titles  were 
divested.     But  the  absolute  divorce  is  an  ultimate  remedy,  a 
last  resort.     The  parties  must  be  relieved  of  the  marital  re- 
lation in  every  respect.     Their  separate  property  must  be 
restored ;  and  their  common  property,  the  result  of  mutual 
labor  and  contribution,  must  be  divided.   It  is  clear  that  the 
property  should  be  divided  so  as  not  to  interfere  with  the 
obligations  of  a  subsequent  marriage.     If  an  allowance  is 
granted  to  the  wife  out  of  the  husband's  income  during  their 
joint  lives,  he  is  placed  in  the  anomalous  and  burdensome 
position  of  supporting  two  wives,  if  he  should  marry  again. 
If  the  divorced  wife  should  marry  again  he  will  not  be  re- 
lieved of  supporting  her;  although  she  has  become  the  wife 
of  another.    The  injustice  of  such  decrees  has  often  induced 
the  husband  to  refuse  further  payments ;  and  his  vigorous 
protest  has  often  caused  contempt  proceedings  to  be  brought 
against  him.     If  the  decree  for  alimony  is  not  secured  by 
real  estate,  the  husband  will  frequently  defeat  all  attempts 
to  enforce  its  payment.     If  the  court  grant  the  use  of  the 
husband's  land  during  their  joint  lives,  this  will  prevent  the 
improvement  and  sale  of  the  property,  and  is  in  other  ways 
contrary  to  our  policy  concerning  the  title  to  real  estate.   If 
the  decree  is  made  a  lien  upon  real  estate,  this  may  neces- 
sitate its  sale ;  and  the  proceeds  may  be  wasted  by  the  wife. 
If  a  gross  sum  is  awarded  her,  to  be  paid  immediately,  it 
will  impose  a  heavy  burden  upon  the  husband,  often  forcing 
him  to  sacrifice  his  property  at  sale,  or  to  borrow  money  at 
high  rates  of  interest.     Many  of  these  dilficulties  may  be 
avoided  by  distributing  the  personal  property  and  awarding 
the  wife  a  portion  of  the  real  estate  in  fee.     This  she  may 
lease,  incumber  or  convey  as  the  circumstances  may  require. 
A  final  accounting  and  distribution  of  the  property  of  both 
parties  is  to  be  preferred  to  a  decree  of  alimony ;  because 
the  parties  are  free  to  marry  again,  their  rights  are  adjudi- 
cated and  secured  without  unnecessary  sacrifice,  and  their 


918  DIVISION   AND    EESTOKATION    OF   PEOPEKTY.  [§  961. 

titles  are  clear  and  unincumbered.  A  decree  of  divorce  is 
thterefore  a  final  settlement  as  to  all  property  rights  of  tlie 
husband  and  wife. 

In  some  states  a  similar  remedy  is  provided  by  statutes 
directing  the  court  to  grant  alimony  to  the  wife,  and  to  re- 
store to  her  the  whole,  or  such  part  as  may  seem  reasonable, 
of  the  personal  estate  that  came  to  the  husband  by  reason 
of  the  marriage.  Where  such  statutes  were  enacted  before 
the  enactment  of  the  married  women's  act,  it  is  clear  that  it 
refers  to  the  property  rights  of  the  husband  at  common  law, 
and  the  object  of  such  statute  was  to  restore  such  property 
to  the  wife.  It  is  held  that  property  obtained  from  the  wife 
as  a  gift  is  not  within  the  meaning  of  such  statute.^  Eut 
this  is  not  important,  since  the  court,  in  making  an  allow- 
ance to  the  wife,  may  consider  any  gifts  made  to  the  hus- 
band, and  increase  the  allowance  according  to  the  circum- 
stances of  the  case  and  not  according  to  the  rigid  rules  of 
law.-  This  form  of  statute  contemplates  a  restoration  of  the 
property  by  a  decree  of  the  court  based  on  proper  pleadings. 
A  divorce  will  not,  by  mere  operation  of  the  statute,  restore 
to  each  the  property  owned  before  marriage.^ 

§961.  Whether  the  property  allotted  is  alimony. —  If 
the  common-law  definition  of  alimony  is  adhered  to,  the 
term  should  only  be  applied  to  the  provision  for  the  support 
of  the  wife  after  a  decree  of  separation.*  In  its  technical 
meaning  it  is  an  allowance  paid  by  a  husband  to  a  wife  dur- 
ing a  judicial  separation.  But  if  the  marriage  is  dissolved, 
there  is  no  wife,  no  husband,  and  consequently  no  alimony. 
An  allotment  of  real  estate  awarded  to  the  wife  after  a  dis- 

1  Dillon  V.  Starin  (Neb.),  63  N.  W,  mortgage,  and  while  it  was  pend- 
12.  ing  the  wife  obtained  a  divorce. 

2  See  Permanent  alimony,  g  909.  It  was  held  that  the  divorce  did 

3  Farley  v.  Farley,  91  Ky.  497.  not  revive  the  mortgage  debt  which 
In  this  case  the  wife,  while  a  feme  was  extinguished  by  the  marriage. 
sole,  executed  a  note  and  mortgage  For  allowance  of  dower  on  di- 
to  a  man  to  whom  she  was  after-  vorce,  see  Dower,  §  1036. 

ward  married.  The  husband  com-  *  See  distinction  made  in  Miller 
menced  an  action  to  foreclose  the    v.  Clark,  23  Ind.  370, 


§  962.]  DIVISION   AND    EESTOKATION    OF    PEOPERTY.  919 

solution  of  the  marriage  is  in  the  nature  of  a  settlement  of 
mutual  accounts,  in  Avhich  not  only  the  maintenance  of  the 
wife,  but  also  the  conduct  of  both  parties,  is  considered,  and 
compensation  is  allowed  for  her  right  of  dower,  and  for  the 
"wrong  inflicted  upon  her  by  the  cause  for  divorce.  It  is  a 
final  adjudication  of  property  rights  of  the  parties,  and  is 
not  subject  to  changes  according  to  the  needs  of  the  wife  or 
the  wealth  of  the  husband.'  The  death  of  either  party  will 
not  affect  the  property  rights  of  the  other.'  The  allotment 
is  similar  to  a  decree  for  alimony  in  that  it  is  granted  after 
divorce  and  provides  in  part  for  the  maintenance  of  the  wife. 
But  in  all  other  respects  the  two  are  different,  and  to  call 
the  allotment  alimony,  or  permanent  alimonj',  is  a  misnomer 
leading  to  confusion  of  terms.'  But  inadvertently,  or  for 
want  of  a  better  term,  the  courts  have  called  this  division 
■of  real  and  personal  property  "alimony."* 

§  962.  Division  of  property  by  divesting  title. —  In  some 
states  the  statute  in  express  terms  directs  the  court  to  divide 
the  real  and  personal  property.^    In  other  states  the  power 

'Bacon  v.  Bacon,  43  Wis.  197;        ^See    Brandon    v.    Brandon,   14 

Blake  V.  Blake,  68  Wis.  303;  Peter-  Kan.    342;     Busenbark    v.   Busen- 

sine  V.  Thomas,  28  O.  St.  596.  bark,  33  Kan.  573;  Blankenship  v. 

2  Miller  V.  Clark,  23  Ind.  370.  Blankenship,  19  Kan.  159;  Broad- 

3.Eicpaj-feSpicer,  83CaL460.  well  v.  Broadwell,  21   O.  St.  657 

■"See  Ross  v.  Ross,   78  III  403;  Faulkner  r.  Faulkner,  15  S.  W. 523 

Daily  v.  Daily,  64  la  339;  Prescott  Herron  v.  Herron,  47  O.  St.  544 

■V.  Prescott,  65  Me.  478;  Prescott  v.  Petersine  v.  Thomas,  36  O.  St.  590 

Prescott,  59  Me.  146;  Tyson  i;.  Tyson,  Lovett    v.    Lovett,    11    Ala.    763 

54  Md.  35;  Taylor  v.  Taylor,  93  N.  Quarles    v.  Quarles,   19  Ala.   363 

-C.  418;  Shaw  v.  Shaw,  114  III.  586;  Whittier    v.  Whittier,   11    Foster 

Dinet  v.  Eigenmann,  80  111.  274;  (N.  H.),  452;  Webster  v.  Wehster, 

■Chenault    v.   Chenault,   37    Tenn.  2  Wash.  St.  417,  26  P.  864;  Swett  v. 

247;  Wiggins  v.  Smith,  54  N.  H.  Swett,  49    N.   H.  264;    Barker  v. 

313;  Owen  v.  Yale,  75  Mich.  256;  Cobb,  36  N.H.  264;  Sheaf et-.  Sheaf e, 

■Coadn  Coad,  41  Wis.33;  Williams  40  N.  IL  516.    As  to  division  of 

t'.WiUiams,  36  Wis.  362;  Gallagher  community   property,    see  White 

V.  Fleury,  36  O.  St.  590;  Moul  v.  v.  White,  86  Cal.  219,  24  P.  996; 

Moul,  30  Wis.  203;  Burrows  «.  Pur-  Cummings  v.  Cummings,  75  Cal. 

pie,   107  Mass.   438;   Broadwell  v.  434;  Harris  v.  Han-is,  71  Cal.  314; 

Broadwell,  31  O.  St.  657.  •  Simpson  v.  Simpson,  80  CaL  287; 


920  DIVISION   AND    EESTOEATION    OF   PEOPERTY.  [§  962.. 

to  divide  real  property  and  vest  the  fee  in  the  wife  is  de- 
rived from  the  statutes,  which  in  general  terms  authorize- 
the  court  to  provide  maintenance  for  the  wife  and  children. 
Thus  in  Illinois  the  statute  provides  that :  "  When  a  divorce 
shall  be  decreed  the  court  may  make  such  order  touching- 
the  alimony  and  maintenance  of  the  wife,  the  care,  custody 
and  support  of  the  children,  or  any  of  them,  as  from  the  cir- 
cumstances of  the  parties  and  the  nature  of  the  case  shall 
be  fit,  reasonable  and  just ;  and,  in  case  the  wife  be  complain- 
ant, to  order  the  defendant  to  give  reasonable  security  for 
such  alimony  and  maintenance,  or  may  enforce  the  payment 
of  such  alimony  and  maintenance  in  any  other  manner  con- 
sistent with  the  rules  and  practice  of  the  court."  This  stat- 
ute is  held  to  be  so  general  in  its  terms  as  to  permit  the- 
court  to  assign  as  alimony  to  the  wife  a  part  of  the  real  es- 
tate of  the  husband  in  fee.^  Thus,  where  the  wife  purchased 
lands  with  the  proceeds  of  the  husband's  property,  the  court, 
on  granting  her  a  decree  for  his  desertion,  directed  the  wife 
to  convey  one-half  of  the  land  to  the  husband.^ 

The  statute  of  New  Jersey  makes  no  distinction  between 
the  absolute  divorce  and  the  decree  of  separation,  but  pro- 
vides that,  "  when  a  divorce  shall  be  decreed,  it  shaU  and 
may  be  lawful  for  the  court  of  chancery  to  take  (make)  such 
order  touching  the  alimony  and  maintenance  of  the  wife,, 
and  also  touching  the  care  and  maintenance  of  the  children 
or  any  of  them,  by  the  said  husband,  as  from  the  circum- 
stances of  the  parties  and  the  nature  of  the  case  shall  be  fit, 
reasonable  and  just."  The  vice-chancellor  held  that  as  the 
statute  was  remedial  it  should  be  liberally  construed,  and 
that  its  terms  permitted  the  court  to  decree  the  husband's, 
property  in  fee  to  the  wife  as  alimony.'    But  on  appeal  the 

Eslinger  v.   Eslinger,   47  Cal.   63;  lifif  u  JoUiff,  33  111.  537;  Robbins  t). - 

Miller  V.  Miller,  33  Cal.   353;   De  Bobbins,   101  111.   416;    Hopper  v. 

Godney  v.  De  Godney,  39  Cal.  157;  Hopper,  19  111.  319. 
Fields  V.  Fields,  3  Wash.  St.  441,  37        ^  Stewartson    v.   Stewartson,   15 

P.  367.  111.  146. 

1  Armstrong  u  Armstrong,  35  111.        ^Calame  v.  Calame,  34  N.  J.  Eq.. 

109;  Wheeler  v.  Wheeler,  18  111.  39;  441. 
Bergen  v.  Bergen,  33  HL  187;  Jol- 


§  962.]  DIVISION   AND    EESTOEATION   OF   PEOPEETT.  921 

chancellor  refused  to  follow  this  interpretation.  The  terms 
"  alimony  "  and  "  maintenance"  were  technical  words  having- 
a  fixed  and  established  meaning,  and  had  not  received  this 
construction ;  although  the  statute  had  been'  in  force  more 
than  fifty  years.  "Xor"  can  I  "perceive,"  said  he,  "the 
force  of  the  argument  that,  as  these  terms  have  acquired 
tbeir  meaning  from  having  been  applied  to  divorces  from 
bed  and  board,  they  should  have  a  wider  scope  when  applied 
to  divorces  from  the  bond  of  matrimony.  How  is  a  change 
of  meaning  to  be  implied,  when  language,  understood  tech- 
nically, is  certainly  not  inapt  when  used  in  either  connec- 
tion? .  .  .  The  clause  under  consideration  relates  to  both 
kinds  of  divorces,  so  that,  if  land  can  be  awarded  as  alimony 
where  there  is  a  divorce  from  the  bond  of  matrimony,  it  can 
where  there  is  a  mere  separation  from  bed  and  board.  This 
result  alone  would  seem  to  be  sufficient  to  demonstrate  the 
inadmissibility  of  the  interpretation  in  question.  In  aid  of 
this  view,  1  will,  in  conclusion,  point  to  the  fact  that  the 
modes  appointed  by  the  act  to  enforce  the  payment  of  ali- 
mony, such  as  requiring  security  from  the  husband,  and  au- 
thorizing the  sequestration  of  his  personal  estate  and  the 
rents  and  profits  of  his  real  estate,  appear  to  stand  in  oppo- 
sition to  the  idea  that  a  part  of  the  land  itself  can  be  set 
apart  for  the  wife.  In  fine,  as  the  legislative  language,  put- 
ting upon  it  its  well  settled  meaning,  will  not  lead  to  any 
absurd  or  unreasonable  result,  in  my  opinion  the  section 
must  be  held  to  import  that,  where  an  allowance  is  made 
under  its  authority,  such  allowance  must  be  alimony,  that 
is,  money  payments  of  the  character  of  an  annuity."  ^ 

In  New  York  the  provision  relating  to  alimony  ^  does  not 
permit  any  relief  other  than  the  alimony  of  the  common 
law.  It  is  held  that  the  court  has  no  power  to  set  apart  a 
portion  of  the  household  furniture  for  the  use  of  the  wife.' 

lid.,  35  N.  J.  Eq.  548.    In  this  2 Sec.  1766  of  the  Code, 

case  the  same  relief  was  granted  '  Doe  v.  Doe,  53  Hnn,  405;  s.  C,  5 

on  the  ground  that  the  husband  N.  Y.  Supp.  415.    This  is  a  narrow 

had  agreed  to  convey  the  property  and  erroneous  construction  of  the 

in  question.  liberal  discretion  conferred  by  the 


922  DIVISION   AND   KESTORATION    OF    PEOPEETT.  [§  962. 

The  statute  in  "Wisconsin  provides  that  "  The  court  shall, 
in  all  cases,  subject  to  the  provisions  of  this  chapter,  regu- 
late the  division  and  distribution  of  the  estate,  real  and  per- 
sonal, between  the  parties,  and  the  allowance  of  alimony  to 
the  Avife,  or  to  her  and  the  minor  children  committed  to  her 
care  and  custody,  according  to  equity  and  good  conscience, 
having  always  due  regard  to  the  legal  and  equitable  rights 
of  each  party;  but  nothing  contained  in  this  chapter  shall 
authorize  the  court  to  divest  any  party  of  their  title  to  or 
interest  in  any  real  estate,  further  than  is  expressly  specified 
herein."  The  last  portion  of  this  section  is  held  to  prohibit 
the  court  from  divesting  a  party  of  his  title  to  real  estate  in 
all  cases  except  as  provided  in  the  same  section,  but  not  in 
all  cases.  The  practice  in  this  state  is  to^divest  the  guilty 
party  of  the  title  to  real  estate  and  transfer  the  property, 
or  a  portion  of  it,  to  the  innocent  party  in  fee.^ 

The  Kentucky  code  ^  provides  that  every  decree  of  divorce 
shall  contain  an  order  of  restitution  of  any  property  not  dis- 
posed of  at  the  commencement  of  the  action  which  either 
party  may  have  obtained  directly  or  indirectly  from  or 
through  the  other  during  marriage.  Where  the  wife  has 
obtained  the  property  through  a  decree  of  separation,  she 
holds  the  same,  although  the  husband  subsequently  obtains 
a  decree  of  absolute  divorce  containing  the  order  of  restitu- 
tion.' 

In  Nevada  the  statute  provides  that,  "  when  the  marriage 

provision    which    authorizes    the  586;  Wilke  v.  Wilfce,  38  Wis.  296 

court,  "in  the  final  separation,  to  Damon    v.  Damon,  28    Wis.   510 

give  such  directions  as  the  nature  Williams  v.  Williams,  36  Wis.  362 

'  and  circumstances  of  the  case  re-  Thomas  v.   Thomas,  41  Wis.  229 

quire.    In  particular,  it  may  com-  Varney  v.  Varney,  58  Wis.  19.    See 

pel  the  defendant  to  provide  suit-  dictum  to  contrary  in  Nebraska, 

ably  for  the  education  and  main-  Ellis  v.  Ellis,  13  Neb.  91, 13  N.  W.  29. 

tenance  of  the    children    of   the  2  gee.  425,  Civ.  Code, 

marriage,  and  for  the  support  of  3  Johnson  v.  Johnson  (Ky.),  29  S. 

the  plaintiff,  as  justice  requires,  W.  332;  Flood  u  Flood,  5  Bush,  167. 

having    regard    to    the    circum-  See,   also,   Williams    v.    Gooch,   3 

stances  of  the  respective  parties."  Mete.  486;  Bennett  v.  Bennett,  36 

1  Donovan  v.  Donovan,  20  Wis.  S.  W.  392. 


§  963.]  DIVISION    AND    EESTOEATION    OF   PKOPEKTT.  923 

shall  be  dissolved  by  the  husband  being  sentenced  to  impris- 
onment, and  when  a  divorce  shall  be  ordered  for  the  cause 
of  adultery  committed  by  the  husband,  the  wife  shall  be  en- 
titled to  the  same  proportion  of  his  lands  and  property  as  if 
he  were  dead;  but  in  other  cases  the  court  niay  set  apart 
such  portion  for  her  support  and  the  support  of  their  chil- 
dren as  shall  be  deemed  just  and  equitable."  The  term 
"  set  apart "  means  a  division  of  property,  and  authorizes 
the  court  to  divest  one  party  of  title  and  convey  it  to  the 
other.^ 

Where  the  alimony  must  be  in  gross,  and  not  in  annual 
payments,  the  courts  have  no  implied  power  to  divest  one 
party  of  title  or  to  set  apart  a  certain  share  of  real  estate.^ 
The  court  may  give  the  Avife  absolute  title  to  lands  under  a 
statute  providing  that,  "when  a  divorce  is  decreed,  the 
■court  may  make  such  order  in  relation  to  the  children  and 
property  of  the  parties,  and  the  maintenance  of  the  wife,  as 
shall  be  right  and  proper." ' 

§  963.  Division  of  property  by  other  means. —  The  stat- 
utes providing  for  a  division  of  property  after  a  dissolution 
of  the  marriage  confer  a  broad  discretionary  power  upon  the 
courts  to  provide  for  the  equitable  settlement  of  the  prop- 
erty of  both  parties.  The  best  policy  will  generally  require 
a  division  of  the  real  estate,  giving  the  wife  some  productive 
property  which  will  yield  her  an  income,  and  allowing  the 
husband  to  retain  any  property  which  is  incumbered,  or 
which  requires  attention  or  further  investment.  It  is  imma- 
terial who  holds  the  legal  title  to  the  property,  since  the 
decree  of  the  court  may  divest  the  title  and  convey  it  to  the 
other.*  This  method  is  to  be  preferred,  because  the  property 

iPowelli;.  Campbell,  30  Nev.  333;  Ewen,  26  la.  375;  Zuver  v.  Zuver, 

Wuest  V.  Wuest,  17  Nev.  217.  36  la.  190;  Twing  v.  O'Mera,  59  la. 

2  Green  v.  Green,  7  Ind.  113;  Rice  336.  See  different  construction  in 
V.  Rice,  6  Ind.  100:  Musselman  v.  Russell  u  Russell,  4  Greene  (la.),  26; 
Musselman,  44  Ind.  106;  Alexander  Hunt  v.  Hunt,  4  Greene,  316;  Du- 
V.  Alexander  (Ind.),  40  N.  E.  55.  pont  v.  Dupont,  10  la.  112. 

3  Jolly  V.  Jolly,  1  la.  9;  O'Hagan  <  Gallagher  v.  Gallagher,  89  Wis. 
«5.   O'Hagan,   4  la.   509;   Jungk  v.  461,  61  N.  W.  1104. 

Jungk,  5  la.  541;  McEwen  v.  Mc- 


924  DIVISION   AITD    EESTOEATION    OF   PEOPEETY.  [§963. 

will  not  be  sacrificed  at  forced  sale  by  execution  or  injure 
the  financial  standing  of  the  parties.  Third  persons  inter- 
ested in  the  real  estate  will  have  an  opportunity  to  protect 
their  rights  after  the  division  of  the  property.  If  the  parties 
desire  to  forgive  the  past,  and  renew  the  marital  relation,^ 
they  may  do  so  without  the  loss  or  disturbance  of  their  prop- 
erty rights.  There  are  also  many  other  considerations  which 
may  render  a  division  of  the  property  and  a  divesting  of  title 
the  most  satisfactory  remedy. 

But  the  statutes  permit  a  departure  from  this  method 
where  the  circumstances  will  not  permit  of  a  divesting  of 
title  or  the  allotment  of  specific  property.  One  party  may 
be  awarded  the  use  of  the  real  estate  or  a  pertion  of  it  dur- 
ing good  behavior  or  while  single.  In  some  instances  the 
wife  is  awarded  the  use  of  the  real  estate  for  life.^  Where 
the  property  consists  of  real  estate  and  division  of  it  is  im- 
practical or  will  destroy  its  desirability  or  productiveness,, 
or  interfere  with  vested  rights  of  creditors,  the  court  may 
award  a  gross  sum  of  money  as  an  equivalent.^  This  sum 
may  be  secured  by  making  the  decree  a  lien  on  the  property, 
where  the  decree  would  not  have  that  effect  by  operation  of 
statute.  Or  the  court  may  make  other  orders  securing  the 
payment  of  such  sum,  without  forcing  the  sale  of  real'estate.* 
Where  the  wife  is  inexperienced  or  without  business  ability 
the  court  may  find  it  expedient  to  award  the  wife  a  resi- 
dence or  a  small  portion  of  the  real  estate  and  a  reasonable 
amount  of  ahmony.*  Or  the  division  may  be  adjusted  by 
awarding  a  portion  of  real  estate  and  a  sum  of  money.'    The 

iLovett  V.  Lovett,  11  Ala.  763;  19  Kan.  159;  Holmes  v.  Holmes,  2 

Shaw  V.  Shaw,  114  111.  586;  Rogers  Jones'  Eq.  334;  Royston  v.  Royston, 

V.  Vines,   6  Ire.   293;    Keating  v.  13  Ga.  435. 

Keating,    48    111.    241 ;    Sammis  v.  ^  McClung  v.  McClung,  43  Mich. 

Medbury,  14  R.  I.  314.  53. 

'  Benedict  v.  Benedict,  58  Conn.  *  Armstrong  v.  Armstrong,  35  111. 

336;  Lyon  v.  Lyon,  31  Conn.  184;  109.   See  confra,  Quarles  n  Quarles,^ 

Sanford  v.  Sanford,   5   Day,   353;  19  Ala.  363. 

Von  Glahn  v.  Von  Glahn,  46  111.  ^See  Brooks  v.  Akeny,  7  Or.  461; 

134;   Blankenship  v.  Blankenship,  Varney  v.  Varney,  58  Wis.  19. 


§  963.]  DITISION   AND    KESTOEATION    OF   PEOPEETT.  925 

husband  may  be  compelled  to  pay  off  the  incumbrances  upon 
the  property  awarded  to  the  wife.'  Or  the  wife  may  be 
compelled  to  pay  the  taxes  and  incumbrances,  and  divide 
the  profits  of  the  homestead  allotted  to  her,  paying  the  hus- 
band in  semi-annual  instalments.^  The  court  may  allow  the 
wife  to  retain  property  held  in  her  name,  and  require  her  to 
pay  the  husband  a  certain  sum  of  money  or  to  secure  such 
sum  by  mortgage  on  her  real  estate.'  "Where  the  court  has 
power  to  divide  the  real  estate,  the  title  cannot  be  awarded 
to  the  children,  or  to  the  wife  in  trust  for  the  children.*  If 
the  statute  provides  that  alimony  may  be  awarded  out  of 
real  and  personal  property,  it  is  not  error  to  award  alimony 
in  the  usual  f  orm.^ 

The  provision  of  the  statute  relating  to  the  division  of  the 
property,  and  providing  for  a  suitable  allowance  for  the 
wife,  must  be  liberally  construed,  with  a  view  to  eifect  its 
object  and  to  promote  justice.  In  some  instances  this  will 
require  a  decree  providing  for  the  payment  of  a  sum  of 
money  in  instalments,  or,  in  effect,  a  decree  for  alimon3^ 
And  the  court  has  the  power  to  award  this  allowance  al- 
though the  statute  does  not  use  the  term  "  permanent  ali- 
mony." *  This  allowance  is  not,  in  fact,  permanent  alimony, 
but  is  a  compensation  for  the  wrong  to  the  wife,  a  compen- 
sation for  her  right  of  dower,  or  for  her  interest  in  the  com- 
munity property.  But  for  want  of  a  better  term  it  is  called 
"  permanent  alimony  "  in  some  states.  In  Illinois  the  courts 
have  been  averse  to  awarding  the  wife  a  portion  of  the  real 
estate  in  fee ;  and  have  awarded  in  lieu  thereof  a  permanent 
allowance,  which  is  termed  alimony.  In  a  leading  case  in 
this  state  the  wife  was  allowed  as  alimony  real  estate  worth 
about  $10,000,  and  $20,000  in  money,  this  being  equal  to 

1  Cummings  v.  Cummings,  75  CaL  See,  also,  Groslouis  v.  Northcut,  3 

434,  Or.  394;  Dosoher  v.  Bleokiston,  7 

2Snodgrass  v.  Snodgrass,  40  Kan.  Or.  403;  JollifiE  v.  JoUiff,  33  111.  527. 

494  6  Sampson  v.  Sampson,  16  R.  L 

3  Gallagher  v.  Gallagher,  89  Wis.  456,  16  A.  711. 

461,  61  N.  W.  1104  ^In  re  Spencer,  83  CaL  460. 

*  Simpson  v.  Simpson,  80  CaL  337. 


926  DlVISIOlf   AND   BESTOEATION   OF   PEOPEETT.  [§  963. 

one-third  of  the  property  owned  by  tl:e  husband.  The  ap- 
pellate court  refused  to  affirm  this  decree,  and  said :  "  The 
power  of  the  court  to  decree  alimony  in  this  mode  has  been 
sanctioned  by  this  court,  but  Ave  do  not  deem  this  a  proper 
case  for  its  exercise.  The  estate  of  the  defendant  had  been 
accumulated  by  him  before  his  marriage.  Her  claim,  there- 
fore, to  an  a'bsolute  portion  of  it  is  by  no  means  the  same, 
in  an  equitable  point  of  Adew,  that  it  would  be  if  the  prop- 
erty were  the  product  of  the  joint  labors  and  economies  of 
the  parties  during  their  married  life.  Neither  did  the  wife 
bring  property  to  the  husband  upon  her  marriage.  It  would 
then,  in  our  opinion,  be  unjust  to  give  her  absolutely  a  large 
amount  of  property,  which,  in  the  event  the  death  of  the 
child  followed  on  her  own  death,  would  go  to  her  family, 
who  are  strangers  to  the  blood  of  the  defendant.  Or  sup- 
pose, what  Avould  be  very  likely  to  happen,  that  she  should 
marry  again  and  have  children.  On  her  (Jeath,  intestate,, 
the  children  by  the  second  husband  would  each  have  the 
same  share  of  this  $30,000  with  the  child  of  the  defendant. 
.  .  .  The  statute  evidently  contemplated  an  allowance 
to  be  paid  at  stated  intervals  for  the  wife's  support ;  and  in 
the  present  case,  as  it  is  now  before  us,  we  should  regard 
this  as  the  better  practice."  '  It  appears  to  be  the  settled 
policy  of  this  state  to  grant  the  wife  alimony,  instead  of 
real  estate  in  fee,  where  she  had  no  means  at  marriage,  de- 
rived none  by  inheritance,  and  the  property  is  not  accumu- 
lated during  the  marriage.^  If  the  husband  receives  nothing 
from  the  wife,  she  is  not  entitled  to  any  title  in  fee ;  but  if 
her  money  or  labor  has  assisted  in  the  purchase  of  the  land 
there  should  be  a  division  of  the  property.'  Although  the 
statute  does  not  permit  a  division  of  the  property,  the  court 
may  allot  the  use  of  a  portion  of  the  real  estate  for  life  as 
alimony.* 

1  Von  Glahn  v.  Von  Glalm,  46  IlL  3  See  Bobbins  v.  Eobbins,  101  111. 
134.  416. 

2  Wilson  V.  Wilson,  102  111.  397;  *  Shaw  v.  Shaw.  114111.  586;  Rog- 
Keating  v.  Keating,  4S  111.  341.  ers  v.  Vines,  6  Ired.  393;  Russell  u 

Russell,  4  Greene  (la.),  26. 


§§  964,  965.]     DIVISION  and  kestoeation  of  pkopeett.      93T 

§  964.  Enforcing  agreement  to  convey  title. —  Although 
the  statute  does  not  authorize  the  court  to  divest  either 
party  of  title  to  land,  and  the  court  has  no  such  inherent 
power,  yet  this  will  not  preclude  the  court  from  enforcing  the 
agreement  of  the  parties  to  convey  land,  when  a  decree  of 
divorce  is  rendered.  Where  a  husband  offered  to  convey 
certain  land  in  fee  to  the  wife,  and  also  to  pay  a  certain 
sum  of  money  in  gross,  when  she  obtained  a  decree,  and 
such  offer  was  made  and  accepted  in  writing  and  set  up  in 
the  petition  with  a  prayer  that  the  agreement  be  enforced, 
such  agreement  may  be  enforced  by  a  court  of  equity  as  a 
provision  in  lieu  of  alimony.  Such  agreement  must  be  valid 
and  reasonable,  and  not  against  public  policy  as  an  agree- 
ment to  live  in  separation.^  This  case  was  approved  and 
followed  in  Missouri  under  a  similar  statute  where  the  agree- 
ment was  made  in  open  court.^  The  court  is  not  bound  by 
the  agreement  of  the  parties,  and  may  make  an  additional 
allowance  to  the  wife,  especially  where  the  custody  of  the 
children  is  awarded  to  her.'  Or,  if  the  agreement  is  unjust 
and  inequitable,  the  court  will  disregard  it.* 

§  965.  How  tiie  property  is  divided. —  The  statutes  gen- 
erally leave  this  question  to  the  discretion  of  the  court.  And 
this  is  the  only  method  by  which  the  rights  and  merits  of 
the  parties  can  be  considered,  and  justice  tempered  with 
mercy.  Our  divorce  laws  are,  at  best,  harsh  and  arbitrary 
'in  their  operation,  denying  relief  when  both  parties  and  the 
interest  of  the  state  demand  it,  and,  again,  granting  a  dis- 
solution of  the  marriage  for  slight  offenses,  when  the  courts 
would,  if  they  had  discretion,  refuse  divorce.  But  while 
the  statutes  do  not  give  the  courts  any  latitude  as  to  the 

1  Calame  v.  Calame,  25  N.  J.  Eq.  2  Crews  v.  Mooney,  74  Mo.  37, 
548,  citing  and  discussing  the  f  ol-  citing  Eussell  v.  Riwsell,  4  Greene 
lowing  cases:    Lucas  v.  Lucas,  1    (la.),  26.     See,  also,   Stockton   v. 


Atk.  270;  Head  v.  Head,  3  Atk. 
547;  Guth  v.  Guth,  3  Bro.  C.  C.  614 
Frampton  v.  Frampton,  4  Beav. 
394;  Fitzer  v.  Fitzer,  3  Atk.  513 
Shepard  v.  Shepard,  7  Johns.  Ch.  57, 


Knock,  78  Cal.  435. 

3  Cole  v.  Cole,  33  la.  433. 

1  McAllister    v.    McAllister,    57 
Tenn.  (10  Heisk.)  345. 


928  DIVISION   AND   KESTORATION   OF   PEOPEETT.  [§  965. 

causes  for  divorce,  when  the  property  rights  are  to  be  de- 
,  termined,  the  courts  are  free  to  consider  all  the  conduct  of 
the  parties,  their  industry,  their  earnings,  and  the  amounts 
they  have  contributed  to  the  common  fund,  and  in  view  of 
all  the  circumstances  to  give  each  party  what  is  just  and 
equitable.  Long  experience  has  established  the  wisdom  of 
trusting  this  distribution  of  the  property  to  the  courts,  and 
demonstrated  the  folly  of  prescribing  fixed  rules,  for  this 
purpose.  jSTevertheless  we  still  find  in  the  statutes  of  some 
of  our  states  a  fixed  proportion  to  be  given  a  wife  who  ob- 
tains a  divorce  from  her  husband.  Sometimes  she  is  to  be 
given  the  same  amount  as  if  the  marriage  were  dissolved  by 
death,  or,  in  other  words,  the  portion  of  a  widow.  In  some 
instances  the  legislature  has  fixed  a  greater  or  less  amount. 
These  statutes  operate  as  a  fixed  prize  or  bounty  to  all  wives 
who  will  renounce  their  marital  duties  and  obtain  divorce. 
In  V  some  instances  it  may  induce  designing  Avomen  to  con- 
tract marriage  to  enable  them  to  win  this  prize  by  divorce. 
In  Oregon  it  is  the  peremptory  duty  of  the  court  to  decree 
to  the  innocent  party  one-third  part  of  aU  the  real  estate 
owned  by  the  guilty  party,  regardless  of  the  equities  of  the 
case.' 

The  division  of  property  after  a  dissolution  of  the  marriage 
is  sometimes  made  upon  the  theory  that  the  court  must  re- 
store to  each  party  his  or  her  share  of  the  common  fund,  as 
if  the  marriage  were  annulled,  and  each  must  be  placed  in 
statu  quo.'''  But  the  better  doctrine  is  that  the  rule  of  equity 
which  requires  that  upon  a  rescission  of  a  contract  the  par- 
ties be  placed  in  statu  quo  has  no  application  to  a  suit  for 
divorce.'  The  common-law  unity  of  husband  and  wife  would 
forbid  such  a  theory  of  distribution.     Such  a  rule  would  be 

•Wetmore    v.  Wetmore,   5    Or.  ^chunn  v.   Chunn,  Meigs,    131; 

469;  Rees  v.  Rees,  7  Or.  47;  Hall  v.  Musselman  v.  Musselman,  44  Ind. 

Hall,  9  Or.  543;  Bamford  v.  Bam-  106;' Payne  v.  Payne,  33  Tenn.  (4 

ford,  4  Or.  30;  Ross  v.  Ross,  31  Or.  Hiunph.)  500;  McGill  v.  MoGill,  19 

9.    But  a  foreign  decree  will  not  Fla.  341. 

have  this  effect.    Barrett  v.  Fail-  ^"vyillniore    v.  Willmore,   15  B. 

ing,  6  Sawyer,  473.  Mon.  49. 


§  965.]  DIVISIOX    AXD    EESTOEATION    OF    PEOPEETT.  929 

against  public  policy- ;  since  it  would  leuve  either  party  to 
.commit  a  cause  for  divorce  with  impunity,  knowing  that . 
upon  a  decree  dissolving  the  marriage  he  or  she  would  re- 
ceive the  same  proportion  of  the  property.  And  to  send 
away  an  injured  wife  with  simply  what  she  has  brought  to 
her  husband,  or  with  an  additional  sum  for  her  services  dur- 
ing the  marriage,  "  with  nothing  for  her  mental  sufferings, 
nothing  for  her  blasted  prospects  in  life,  nothing  for  the 
sacrifice  of  her  virginity  and  early  bloom  to  brutality  or 
lust,"  would  place  her  on  the  level  of  a  mistress  and  a  serv- 
ant. The  sound  theory  upon  which  the  court  should  pro- 
ceed in  dividing  the  property  after  divorce  is  to  compensate 
the  wife  for  the  wrong  inflicted  upon  her  by  the  cause  for 
divorce,  to  compensate  her  for  the  loss  of  dower,  and  the 
interest  in  the  common  property,  as  well  as  to  provide  in 
part  for  her  future  support.^ 

In  dividing  the  property  the  conduct  of  each  party  will 
have  some  influence  with  the  court.  The  guilty  wife  will 
receive  something,  but  much  less  than  an  equal  share.'^  If 
the  conduct  of  the  wife  has  been  §uch  that  she  is  not  en- 
titled to  a  divorce,  but  the  decree  cannot  be  reversed  on 
appeal,  the  supreme  court  may  refuse  alimony,  and  allow 
the  husband  to  retain  the  homestead.'  Although  the  wife 
is  entitled  to  a  divorce,  the  court,  in  awarding  her  alimony, 
may  consider  her  ante-nuptial  unchastity,  her  fraudulent 
concealment  of  her  guilt  before  marriage,  her  hasty  suit 
for  divorce,  and  the  liberal  allowance  of  temporary  alimony 
during  litigation.''  The  amount  of  property  which  the  wife 
contributed  to  the  common  fund  should  be  considered.  Her 
-specific  property  may  be  restored  to  her.'    But  where  there 

i/n  re  Spencer,  83  Cal.  460.  <  Varney  v.  Varney,  58  Wis.  19. 

2Lovett  V.  Lovett,  11  Ala.  763;  6  sharp   v.    Sharp,  84   Tenn.    (3 

McCaflEertyv.McCafferty,8Blaokf.  Sneed),  496;  Tewksbury  r.  Tewks- 

•218;  Richardson  u  Wilson,  8  Yerg.  bury,   4  How.  (Miss.)  109;   Kings- 

67;    Snodgrass    v.    Snodgrass,    40  berry  u  Kingsberry,  8  Harr.  (Del.) 

Kan.  494;  Tumblesome  v.  Tumble-  8;  Grubb  v.  Grubb,  1  Harr.   (Del.) 

some,  79  Ind.  558.  516.    See,  also,   Flood  v.  Flood,  5 

3  Ensler  v.  Ensler,  72  la.  159.  Bush  (Ky.),  167;  Williams  v.  Gooch, 
59 


930 


DrVISIOlf  AND    EESTOEATION    OF   PEOPEETT.  [§  965"l. 


is  a  distribution  to  be  made  the  court  may  refuse  to  restore 
•  the  wife's  property  to  her,  but  will  consider  her  contribu- 
tion to  the  common  fund,  and  award  her  accordingly.^  Both 
the  separate  and  the  joint  property  may  be  included  in  the- 
estunated  fund  from  which  the  distribution  may  be  made.* 
The  proportion  which  the  wife  should  receive  on  a  disso- 
lution of  the  marriage  is,  in  the  absence  of  statute,  fixed  by 
the  court  according  to  the  circumstances  of  the  case.  There 
is  no  fixed  rule  or  proportion.  The  courts  have  not  set- 
tled upon  any  policy  which  should  govern  the  distribution. 
Under  the  common-law  status  of  the  wife  she  should  have 
sufficient  to  maintain  her  according  to  the  means  of  her 
husband.  Modern, legislation  has  placed  the  husband  and 
wife  in  a  status  of  equality  in  many  of  their  property  and 
social  rights,  but  has  not  removed  from  the  husband  the 
burden  of  supporting  the  family.  This  duty  still  remains, 
and  must  be  considered  in  a  distribution  of  property.  But 
if  the  husband  has  no  property,  the  wife  must  submit  to.  the? 
misfortune.'  If  the  property  to  be  divided  is  community 
property,  it  is  not  clear  that  all  of  it  may  be  awarded  to  the 
wife.*  But  in  some  cases  where  the  wife  is  the  innocent 
party  and  is  awarded  the  custody  of  the  children,  the  courts 
have  found  it  a  sound  and  conservative  policy  to  award  the 
homestead  in  feq  to  the  wife.''    If  the  wife  is  unable  to  sup- 


3  Met.  (Ky.)  486;  Kriger  v.  Day,  2 
Pick.  316;  Dean  v.  Dean,  5  Pick. 
438;  Dean  v.  Richmond,  5  Pick. 
461;  Warner  v.  Warner,  83  Miss. 
547 ;  Jennings  v.  Montaigne,  2  Gratt. 
(Va.)  350;  Dejarnet  v.  Dejarnet, 
5  Dana,  499. 

1  Stillman  v.  Stillman,  66  Tenn. 
(7  Baxter),  169. 

2  Webster  v.  Webster,  2  Wash.  St. 
417,  26  P.  864;  Van  Brunt  v.  Van 
Brunt,  53  Kan.  380,  34  P.  1117. 

^Chenault  v.  Chenault,  87  Tenn. 
(5  Sneed),  248;  Ensler  t).  Ensler,  73 
la.  159. 

^All    the    community  property 


may  be  awarded.  See  Miller  v.  Mil- 
ler, 33  Cal.  353;  Gimmy  v.  Gimmy, 
23  Cal.  633;  Gimmy  v.  Doane,  23 
Cal.  635;  Howe  v.  Howe,  4  Nev.  469; 
Strozynski  v.  Strozynski,  97  Cal. 
189,  31  P.  1130.  But  see,  contra, 
Tiemann  v.  Tiemann,  34  Tex.  522; 
Craig  V.  Craig,  31  Tex.  203.  See  in- 
ventory and  division  of  community 
property  approved  in  Simons  u 
Simons,  33  Tex.  344';  Trimble  v.. 
Trimble,  15  Tex.  18.  For  Louisi- 
ana see  cases  cited  in  HeflEner  v. 
Parker  (La.  An.),  17  So.  207. 

5  Brandon  v.  Brandon,  14  Kan. 
342;  Cole  v.  Cole,  33  la.  433;  Boyd, 


§  965.]  DIVISION  AND   EEST0EA1T0N   OF  PEOPEETT.  931 

port  herself,  all  of  the  homestead  may  be  awarded  to  her, 
leaving  the  husband  to  support  himself  by  his  own  efforts, 
and  by  sale  of  some  of  the  personal  property  awarded  to 
him.^  Where  the  property  of  the  husband  consists  of  a 
house  and  lot,  this  may  be  awarded  to  the  wife,  if  the  hus- 
band is  able  to  support  himself.^ 

In  making  the  distribution  the  court  wiU  consider  ante- 
nuptial agreements  and  marriage  settlements.  It  would 
seem  that  the  power  to  divest  a  party  of  title  to  real  estate 
would  include  the  power  to  vary  or  cancel  marriage  settle- 
ments according  to  the  rules  governing  the  distribution  of 
property.'  In  England  the  courts  are  authorized,  after  an- 
nulling or  dissolving  a  marriage,  "to  inquire  into  the  exist- 
ence of  any  ante-nuptial  or  post-nuptial  settlements  made  on 
the  parties  whose  marriage  is  the  subject  of  the  decree,  and 
may  make  any  such  orders  with  reference  to  the  application 
of  the  whole  or  a  portion  of  the  property  settled,  either  for 
the  benefit  of  the  children  of  the  marriage  or  of  their  re- 
spective parents,  as  to  the  court  shall  seem  fit."  *  The  de- 
cisions under  this  section  may  be  useful  where  a  marriage 
settlement  is  to  be  changed  after  divorce.^ 

V.  Boyd  (Cal.),  31  P.  1108;  Johnson  Bacon,  2  Swab.  &  T.  86;  Corbett 

V.  Johnson  (Cal.),  33  P.  637.   But  the  v.  Corbett,  13  P.  D.  136;  Corbett  v. 

community  property  so  awarded  Corbett,    14    P.    D.   7;    Noakes  v. 

is  subject  to  the  debts  of  the  fam-  Noakes,  4  P.  B.  60;  Bird  v.  Bird,  -1 

ily  contracted  by  the  husband  on  P.  &  M.  231;  March  v.  Marcli,  1  P. 

the  faith  of  his  ownership  of  such  &  M.  440;  Corrance  v.  Corrance,  1 

property.    Frankel  u  Boyd  (Cal.),  P.  &  M.  495;  Smithe  uSmithe, IP. 

39  P.  939.  &  M.  587;  Worsley  v.  Worsley,  1  P. 

1  "Webster  v.  Webster,  64  "Wis.  &  M.  648;  Graham  v.  Graham,  1 
438;  Donovan  v.  Donovan,  20  Wis.  P.  &  M.  711;  Paul  v.  Paul,  2  P.  &M. 
586;  Eidenmuller  v.  Eidentnuller,  93;  Sykes  v.  Sykes,  3  P.  &  M.  163; 
37  Cal.  864  Milne  v.  Milne,  3  P.  &  M.  395;  Crisp 

2  Wuest  V.  Wuest,  17  Nev.  317,  30  v.  Crisp,  3  P.  &  M.  436;  Symonds 
P.  886;  Harran  v.  Harran,  85  Wis.  v.  Symonds,  3  P.  &  M.  477;  Hope 
299  55  N.  W.  400.  v.  Hope,  3  P.  &  M.  326;  Gladstone 

"Hacker  v.  Hacker  (Wis.),  63  N.  v.  Gladstone,  1  P.  D.  442,  3  P.  &  M. 

W.  378.  160;  Benyon  v.  Benyon,  1  P.  D.  447; 

4  32  &  33  Vict.,  eh.  61,  §  5.  Maudsley  v.  Maudsley,  3  P.  D.  356; 

5  A.  V.  M.,  10  P.  D.  178;  Bacon  v.  Yglesiasu  Yglesias,  4  P.  D.  71;  Anii- 


932  DIVISION    AND   EESTOEATION    OF   PKOPEETT.  [§  965. 

The  power  of  our  courts  to  vary  or  cancel  marriage  set- 
tlements and  conveyances  of  one  married  party  to  another 
has  been  denied  where  the  statute  does  not  confer  such 
power.  The  trial  court  on  granting  a  divorce  found  that 
the  husband  had  nlade  a  voluntary  settlement  upon  the  wife 
of  certain  real  property,  and  directed  her  to  reconvey  a  spe- , 
cific  portion  thereof  to  the  husband.  The  real  estate  Avas 
purchased  by  the  husband  with  money  received  by  him  from 
the  wife  at  marriage,  but  both  parties  had  contributed  the 
funds  used  in  the  erection  of  improvements.  The  supreme 
court  of  the  District  of  Columbia  affirmed  the  decree  of  the 
lower  court.'  But  the  supreme  court  of  the  United  States 
reversed  the  decree,  holding  that,  in  the  absence  of  any  stat- 
ute relating  to  permanent  alimony,  the  lower  court  had  no 
power  to  disturb  a  valid  gift  upon  granting  a  divorce.^  But 
in  the  states  where  the  courts  have  statutory  power  to  grant 
alimony  on  an  absolute  divorce,  it  seems  clear  that  all  gifts 
and  settlements  should  be  considered  in  determining  the 
proper  allowance.' 

dell  V.  Ansdell,  5  P.  D.  138;  Boss  v.  v.  Carstairs,  3  Swab.  &  T.  538;  Call- 
Ross,  7  P.  D.  20 ;  Wigney  v.  Wigney,  well  v.  Callwell,  3  Swab.  &  T.  359 ; 
7  P.  D.  177;  Wigney  u  Wigney,  7  P.  Norris  v.  Norris,  1  Swab.  &  T.  174; 
D.  228;  Jump  v.  Jump,  8  P.  D.  159;  Webster  v.  Webster,  3  Swab.  &  T. 
Oppenheim  v.  Oppenheim,  9  P.  D.  106;  Thomas  v.  Thoraas,  2  Swab.  & 
60;  Clifford  v.  Clifford,  9  P.  D.  76;  T.  89;  Bent  v.  Bent,  3  Swab.  &  T. 
Ponsonby  v.  Ponsonby,  9  P.  D.  58-  392;  Boynton  v.  Boynton,  3  Swab. 
132;  Noel  v.  Noel,  10  P.  D.  179;  Far-  &  T.  375;  Bell  v.  BeU,  1  Swab.  &  T. 
rington  v.  Farrington,  11  P.  D.  84;  565. 

Smith  V.  Smith,  13  P.  D.  102;  Har-  i  Jackson  v.  Jackson,  1  MacAr.  34. 

rison   v.  Harrison,   12  P.   D.  130;  2  jaokson  u  Jackson,  9i  IT.  S.  122. 

Pryor  v.  Pryor,  12  P.  D.  165 ;  Bos-  It  has  since    been   held  that  on 

viUe  V.  Bosville,  13  P.  D.  76;  Ben-  granting  a  divorce  the  court  has 

yon  V.  Benyon,  15  P.  D.  39 ;  Nun-  no  power,  in  the  absence  of  stat- 

neley  v.  Nunneley,  15  P.  D.  186;  ute,  to  disturb  a  valid  settlement 

Chetwynd  v.  Chetwynd,  1  P.  &  M.  made  before  the  cause  for  divorce 

89;   Swift  V.  Swift,  15  P.  D.  118;  arose.    Hinds  v.  Hinds,  7  Maokey, 

RolUns  V.  Eollins,  4  Swab.  &  T.  158 ;  85. 

Gill  V.  Gill,  3  Swab.  &  T.  359 ;  Ling  '  See  this  question  in  Permanent 

V.  Ling,  4  Swab.  &  T.  99;  Stone  v.  alimony,  §  1037. 
Stone,  3  Swab.  &  T.  373;  Carstairs 


§  960.]  DIVISION   AND   EESTOEATION    OF   PEOPEETY.  033 

§  966.  Practice  in  tlie  division  of  propei'ty. —  This  is  a 

statutory  proceeding  for  a  division  of  property  after  a  dis- 
solution ;  and  the  property  should  be  described  and  a  divis- 
ion prayed  for  in  the  petition  for  divorce.^  There  are  some 
states  "where  the  property  allotted  is  called  alimony;  and  it 
is  held  that  a  prayer  for  division  of  the  property  is  not  nec- 
essary, since  alimony  is  a  mere  incident  of  a  proceeding  for 
divorce.^ 

The  award  of  property  is  not  in  a  true  sense  a  decree  of 
alimony,  but  is  more  in  the  nature  of  a  final  accounting  be- 
tween the  parties.  After  term  the  court  will  have  no  power 
to  revise  the  decree  or  change  the  amount.'  Such  decree  is 
a  final  judgment,  unless  it  is  shown  property  was  omitted 
by  fraud  or  mistake.*  To  have  this  eifect  the  decree  must 
show  that  there  was  a  distribution  of  the  property ;  and  if 
it  appears  that  alimony  was  awarded,  or  personal  property 
only  was  divided,  the  decree  may  be  modified.^  If,  after  the 
decree  is  rendered,  the  wife  discovers  other  real  property 
not  considered  by  the  court  in  making  the  award,  she  may 
have  the  decree  modified  and  her  proportion  of  the  property 
increased.^  The  wife  may  bring  a  subsequent  suit  to  enforce 
her  rights  under  the  decree,  as  against  the  husband  and  his 
creditors  and  grantees.'' 

1  Howe  V.  Howe,  4  Nev.  469;  Boss  N.  W.  337;  Petersine  v.  Thomas,  38 

V.  Ross.  21   Or.  9,  36  P.  1007,  and  O.  St.  596. 

cases  cited.  *  Wright  v.  Wright,  7  Tex.  526. 

2Twing  V.  O'Mera,  59  la.  326.    In  s  Blake  v.  Blake,  68  Wis.  303. 

Georgia  the  jury  may  award  prop-  "  Lyon  v.  Lyon,  21  Conn.  185. 

erty  to  the  wife  in  fee.  See  Gholston  '  Weiss  v.  Bethel,  8  Or.  523 ;  Godey 

V.  Gholston,  54  Ga.  285.  v.  Godey,  39  Cal.  161 ;  Whetstone  v. 

3  Bacon  v.  Bacon,  43  Wis.  197;  Coffee,  48  Tex.   269;    H6uston    v. 

Webster  v.  Webster,  64  Wis.  438;  Timmerman,  17  Or.  499. 
Kempster  v.  Evans,  81  Wis.  347,  51 


CUSTODY  AND   SUPPORT  OF  CHILDREN. 


§975, 
976. 

977. 

978. 


In  general. 

The  relative  claims  of  the 
parents. 

Custody  during  suit  for  di- 
vorce. 

Access  to  children. 

979.  Custody  where  a  divorce  is 

denied. 

980.  Effect  of  order  of  custody 

'  rendered  in  another  state. 


§  981.  Support  of  children  after 
divorce. 
983.  Support  where  decree  is  si- 
lent as  to  custody. 

983.  Support    where     custody 

awarded  to  wife. 

984.  The  order  for  custody  and 

support. 

985.  "When  modified. 


§  975.  In  general. —  "When  it  has  been  determined  that 
a  divorce  will  be  rendered  it  becomes  necessary  to  make 
some  order  concerning  the  custody  and  support  of  children 
of  the  parties.  The  court  granting  the  divorce  is  the  proper 
tribunal  in  which  to  determine  which  parent  is  best  quali- 
fied to  be  custodian ;  for,  in  hearing  the  evidence  as  to  the 
conduct  of  the  parties  and  the  nature  and  extent  of  the 
property  owned  by  each,  such  court  has  before  it  the  prin- 
cipal facts  which  are  necessary  to  enable  it  to  select  the  best 
person  as  a  custodian.  The  statutes  confer  a  broad  discre- 
tion upon  the  trial  court  to  make  such  order  as  the  circum- 
stances require,  and  in  the  exercise  of  this  discretion  the 
court  is  to  consult  the  welfare  of  the  child  in  every  case. 
The  good  of  the  child  is  paramount  to  all  other  considera- 
tions, and  the  court  may  ignore  the  greater  affection  of  one 
party,  the  common-law  right  of  the  father,  the  agreements 
of  the  parties,  and,  if  the  circumstances  clearly  require  it, 
niay  award  the  custody  to  a  third  person.  The  agreement 
of  the  parties  is  not  binding  upon  the  court,  for  it  is  not  the 


§  975.]  CUSTODY   AlifD    SUPPORT    OF    OHILDEEN.  935 

rights  of  the  parents  whicli  are  to  be  determined.'  Tet  if  the 
<30urt  upon  investigation  finds  the  agreement  is  fair  and  ade- 
quate, it  will  hesitate  to  interfere  with  the  wishes  of  the  par- 
ties. If  such  agreement  is  approved  the  coupt  may  enter 
an  order  in  conformity  with  it.  If  the  child  has  arrived  at 
an  age  to  have  an  opinion  as  to  which  parent  wiU  be  most 
suitable,  the  court  may  consult  the  wishes  of  the  child.^  But 
the  court  may  ignore  the  choice  of  a  child  where  it  is  the 
result  of  prejudice  and  manifestly  against  its  welfare.^  In 
case  the  child  has  attained  an  age  of  suflBcient  discretion  to 
«nable  it  to  exercise  a  wise  choice,  the  order  will  not  be  made 
contrary  to  its  wishes.*  The  English  courts  at  one  time  held 
that  the  order  for  custody  and  support  could  only  be  made 
until  the  children  arrived  at  sixteen.'  The  rule  of  the  court 
of  chancery,  that  at  sixteen  a  child  was  of  sufficient  years  of 
discretion  to  choose  its  own  guardian,  was  followed,  and 
the  custody  was  awarded  until  the  children  arrived  at  six- 
teen years  of  age.  From  this  it  was  reasoned  that  a  valid 
order  of  support  for  a  child  over  sixteen  could  not  be  made,  for 
the  maintenance  followed  the  custody.  But  the  true  doctrine 
is  that  on  rendering  a  decree  of  divorce  the  court  has  a  statu- 
tory discretion  which  greatly  exceeds  that  of  the  court  of  chan- 
cery," and  may  provide  for  both  the  custody  and  support  of 
-the  children  until  they  are  twenty-one  years  old.''  The  usual 
form  of  the  order  for  support  is  that  a  certain  person  shall 
have  the  custody  of  the  children,  and  a  certain  sum  shall  be 
paid  for  their  support  at  certain  intervals  "  until  the  further 

1  Giles   V.    GUes,    30    Neb.    634;  *  Eeg.  u  Howes,  3  B.  &  E.  333. 
D'Alton  V.  D'Alton,  4  P.  D.  87;  5  Mallinson  u  MaUinson,  :^  P.  &  M. 
White  V.  White,  75  la.  218;  Cook  231;  Eyder  v.  Eyder,  3  Swab.  &  T. 
V.  Cook,  1  Barb.  Ch.  639;  Kremel-  335;  Webster  v.  Webster,  31  L.  J. 
burg  V.  Kremelburg,  53  Md.  553.  P.  &  M.  184. 

2  Coffee  V.  Black,  83  Va.  567.    In  « Marsh  v.  Marsh,  1  Swab.  &  T, 
English  V.  English,  31  N.  J.  Eq.  543,  312. 

the  court  allowed  a  boy  of  ten  'Thomassett    v.    Thomassett,    6 

years  and  a  girl  of  eight  to  select  Eep.  (1894),  637,  overruling  Bland- 

.theparemt.  ford  v.  Blandford,    1893   Probate, 

3  DissMiting  opinion  in  Hewitt  v.  148,  and  citing  and  discussing  the 
iLong,  76  III  399.  authorities. 


936  CUSTODY   XKD   SUPPORT    OF   CHILDEEN.  [§  976, 

order  of  the  court,"  and  in  this  way  the  decree  may  he  modi- 
fied from  time  to  time,  whether  the  statute  provides  this, 
remedy  or  not.  It  is  the  duty  of  the  court  to  fix  the  cus- 
tody of  the  children,  although  the  pleadings  do  not  seek: 
such  relief.^ 

§  976.  The  relative  claims  of  the  parents. —  Upon  di- 
vorce the  parents  have  equal  rights  as  to  the  custody  of  the- 
children,  and  the  welfare  of  the  child  will  always  deterndne- 
the  conflicting  claims  of  the  parents.  The  paramount  right 
of  the  father  to  the  custody  of  a  child  at  the  common  law 
is  in  some  of  the  cases  admitted  to  exist,  bat  is  said  to  be  suhr 
ordinate  to  the  best  interest  of  the  child.^  But  on  decreeing: 
divorce  the  husband  has  no  paramount  right  to  the  custody 
of  his  children.  The  common-law  right,  if  it  was  an  abso- 
lute vested  right,  is  terminated  by  the  dissolution  of  the' 
marriage.'  The  absolute  divorce  and  the  discretion  of  the 
court  to  make  such  order  as  is  just  and  reasonable  concern- 
ing the  maintenance  and  custody  of  the  children  after  the 
marriao:e  is  dissolved  were  unknown  at  the  common  law,  and 
are  conditions  created  hy  modern  statutes.  The  court  has  au- 
thority under  the  statute  to  treat  the  welfare  of  the  children 
as  the.  chief  consideration,  and  in  the  exercise  of  a  sound 

1  Parker  v.  Parker,  8  Ohio  Cr.  Ct.  natural  guardian,  invested  by  Godi 
R.  363.  and  the  law  of  the  country  with 

2  Adams  v.  Adams,  1  Duv.  (Ky.)  reasonable  power  over  them.  Un- 
167.  See  Welch  v.  Welch,  38  Wis.  less,  therefore,  his  parental  power 
534;  Wand  v.  Wand,  14  CaL  513;  has  been  cruelly  abused,  this  court 
Green  v.  Green,  52  la.  403;  Lusk  v.  would  be  very  cautious  of  inter- 
Lusk,  38  Mo.  91;  Ahrenfeldt  v.  fering  with  the  exercise  of  it." 
Ahrenfeldt,  1  Hoffman,  497;  Ben-  Afterwards  on  proof  of  the  cruelty 
nett  V.  Bennett,  Deady,  399;  Chet-/  of  the  husband,  the  custody  or 
wynd  V.  Chetwynd,  1  P.  &  M.  39;  the  children  was  awarded  to  the 
Cartlidge  v.  Cartlidge,  2  Swab.  &  mother.  Prather  v.  Prather,  4, 
T.  567.    In  an  early  case  on  grant-  Des.  33. 

ing  the  wife  separate  maintenance  3  Giles  v.  Giles,  30  Neb.  634;  Hew- 
the  chancellor  said:  "With  respect  ett  v.  Long,  76  111.  899;  Green  v.^ 
to  the  children,  I  do  not  feel  at  Green,  53  la.  403;   Cooke  v.  Han- 
liberty  to  take  them  out  of  the  num,  39  Miss.  433,  489. 
custody  of  the  father.    He  is  the 


§  976.]  CUSTODY   AND    SUPPORT    OF   CHILDREN  93  T 

discretion  will  choose  that  parent  as  custodian  who  has  the 
best  qualifications.' 

"We  will  now  proceed  to  notice  the  instances  Avhere  th& 
good  of  the  child  has  been  held  paramount  to  the  valid 
claims  of  the  parents.  Perhaps  the  most  extreme  case  is- 
where  the  best  interests  of  the  child  have  required  the  court 
to  ignore  the  claims  of  both  .parents,  and  award  the  custody 
to  a  third  person  who  was  better  quahfied  than  either.^ 
The  power  to  award  the  custody  of  the  children  of  the  par- 
ties to  a  third  person  is  conferred  by  the  ordinary  form  of 
the  statute  relating  to  the  custody  of  children  after  divorce.' 
The  terms  of  the  statute  in  some  states  may  contemplate 
this  disposition.*  The  discretion  of  the  court  is  abused  if 
the  custody  of  a  child  is  awarded  to  a  third  person  where 
one  of  the  parties  is  not  manifestly  unqualified  for  the  trust.* 
Where  the  court  has  the  power  to  award  the  custody  to  a 
third  person,  a  stranger  will  be  allowed  to  intervene  and 
raise  an  issue  concerning  the  qualifications  of  both  parents.* 
Where  the  parties  are  not  of  the  same  faith,  the  court  is  not 

1  Marsh  v.  Marsh,  1  Swab.  &  T.  *In  re  Laplain   (La.  An.),  8  So, 

312;  Boynton  v.  Boynton,  2  Swab.  615.    This  power  is  denied  where 

&  T.  275;  Miner  v.  Miner,  11  111.  43;  the  statute  provides  that  the  courts 

Umlauf  V.  Umlauf,  128  111.  378,  21  upon  rendering  a  decree  of  divorce, 

N.   E.   600;  Barrere  v.   Barrere,   4  "may  make    such    further   judg- 

Johns.   Ch.   187;   Cook  i:   Cook,  1  ment  as  it   shall  deem  just  and 

Barb.  Ch.  639;  Schichtl  u  Schichtl,  proper  concerning  the  care,  cus- 

88  la.  210,  55  N.  "W.  309;   Lyle  v.  tody  and  maintenance  of  the  minor 

Lyle,  86  Tenn.   372;   Haymond  v.  children  of  the  parties,  and  may 

Haymond,  74  Tex.  414;  Adams  v.  determine  with  lohich  of  the  parties 

Adams,  1  Duv.  167;  Corrie  v.  Cor-  the  children,  or  any  of  them,  may 

rie,  42  Mich.  509 ;  Myers  v.  Myers,  remain,  having  due  regard  to  the 

83  Va.  806,  6  S.  E.  630.  age    and    sex  of    such  children. "^ 

-  Custody  was  awarded  to  grand-  Hopkins  v.  Hopkins,  39  Wis.  165, 

parents  in  Lambert  v.  Lambert,  16  166,  167. 

Or.  485,  19  P.  459;  Eice  v.  Rice,  21  5  Farrar  v.  Farrar,  75  la.  125. 

Tex.  58;  Godrich  v.  Godrich,  3  P.  6  Chetwynd  v.  Chetwynd,  1  P.  & 

&  M.  134.     See,  also,  McCarthy  v.  M.  39,  4  Swab.  151;  Godrich  v.  God- 

Hinman,  35  Conn.  538.  rich,  3  P.  &  M.  134;  March  v.  March, 

3  Chetwynd  v.  Chetwynd,  4  Swab.  1  P.  &  M.  437. 
&  T.  151. 


938  CUSTODY    AND    SUPPOET    OF    CHILDEEN.  [§  976. 

bound  to  choose  which  form  of  religious  training  will  be  for 
the  best  interests  of  the  children,  but  may  properly  avoid 
the  question  by  awarding  the  custody  to  some  suitable  per- 
son within  easy  access  of  both  parents.^  This  will  leave  the 
children  free  from  the  evil  effects  of  the  dissensions  of  their 
parents.  Where  the  good  of  the  child  does  not  prevent, 
the  custody  is  generally  awarded  to  the  party  who  obtained 
the  divorce.^ 

Where  the  parties  cohabited  during  a  suit  to  annul  the 
marriage  on  account  of  a  prior  marriage  undissolved,  neither 
of  them  is  an  "  innocent  party  "  within  the  meaning  of  the 
statute,  and  the  court  will  not  change  the  custody  of  the 
child.'  A  party  who  is  fairly  qualified  ought  not  to  lose 
the  society  of  the  children  because  forced  to  obtain  divorce 
by  the  misconduct  of  the  other .^  But  the  court  may  in  its 
discretion  award  the  custody  to  the  guilty  party  if  best 
qualified,  for  the  party  obtaining  divorce  is  not  entitled  to 
the  custody  as  a  matter  of  right.^  Ordinarily  a  mother  who 
has  committed  adultery  will  not  be  permitted  to  retain  her 
child  after  divorce.*  But  the  guilt  of  the  wife  may  be  over- 
looked where  she  is  not  grossly  immoral,  if  the  child  is  of 
tender  years.''  In  such  case  the  order  is  only  temporary 
and  subject  to  the  further  order  of  the  court. 

iD'Alton  V.  D'Alton,  4  P.  D.  87.    Milford  v.  Milford,  1  P.  &  M.  715 


2Carr  v.  Carr,  23  Gratt.  168 
Latham  v.  Latham,  30  Gratt.  307 
Welch    V.    Welch,    38    Wis.    534 


Bacon  v.  Bacon,  1  P.  &  M.  167 
Skinner  v.  Skinner,  18  P.  D.  90 
Beaucaire  v.  Lepage,  12  Lower  Can, 


Becker  v.  Becker,  79  111.  533;  Bixrge  Eep.  81. 

-u.  Burge,  88  lU.  164;  Wilkinson  v.  sSafford  v.  Safford,  31  Abb.  N.  C. 

DemiQg,  80  IlL  343;  Codd  v.  Codd,  73,  27  N.  T.  Supp.  640. 

3  Johns.  Ch.  141;  Lemunier  v.  Mo  *Suggate  v.  Suggate,  1  Swab.  & 

Cearly,  37  La.   An.   133;   Klein  v.  T.  492. 

Klein,  47  Mich.  518;  Kingsberry  v.  5  Haskell  v.  Haskell,  133  Mass.  16. 

Kingsberry,  3    Harring.   (Del)   8;  ^Helden  v.  Helden,  7  Wis,  396; 

Jeans  v.  Jeans,  3  Harring.  (Del.)  Kremelberg  v.  Kremelberg,  52  Md. 

143;  Noel  v.  Noel,  9  0.  E.  Green,  553;  Jackson  v.  Jackson,  8  Or.  403; 

137;  P.  V.  Mercein,  8  Paige,  47;  J.  Uhlman  u  Uhlman,  17  Abb.  N.  Gas. 

F.  C.  V.  M.  E.,  6  Rob.  (La.)  135;  Boyn-  236. 

ton  V.  Boynton,  2  Swab.  &  T.  275;  ^C.  v.  Addicks,  5  Binn.  530.    The 


§  976.3  cusxdDY  ajnD  suppokt  of  oiiildken.  939 

It  is  not  an  absolute  rule  that  one  who  has  committed  adul- 
tery is  morally  unfit  to  have  the  custody  of  a  child.  The 
circumstances  may  show  repentance  or  other  facts  which 
render  a  repetition  of  the  offense  improbable.^  And  sus- 
picious conduct  of  the  wife  will  not  deprive  her  of  the  cus- 
tody of  young  children  where  the  husband  failed  to  establish 
her  adultery,  and  divorce  is  granted  on  account  of  his 
cruelty.- 

The  fact  that  a  party  has  deserted  may  be  evidence  of  a 
gross  marital  wrong.  But  in  the  ordinary  case  there  are 
generally  some  palliating  circumstances  which,  though  not 
sufficient  to  justify  a  separation,  may  disclose  that  the  de- 
serter was  not  greatly  at  fault.  The  mother  may  in  some 
circumstances  be  permitted  to  retain  the  custody  of  the 
children,  although  she  has  been  guilty  of  desertion.'  But 
the  circumstances  may  justify  the  court  in  awarding  the 
custody  to  the  father,  where  the  welfare  of  the  children  re- 
quires.* The  mother  is  preferred  as  a  custodian  for  children 
while  very  young  and  in  need  of  personal  attention  and 
maternal  care ;  and  the  courts  have  without  exception  granted 
the  custody  to  her,  regardless  of  her  former  conduct.*  The 
necessity  of  a  mother's  care  does  not  necessarily  cease  when 
the  nursing  period  is  over.    A  delicate  and  nervous  child 

custody    may     be     subsequently  *  See  cases  cited  above.   See,  also, 

changed  when  the  child  is  older.  Wagner  v.  Wagner,  6  Mo.  Ap.  573; 

C.  V.  Addicks,  2  S.  &  B.  174  Lyle  v.  Lyle,  86  Tenn.  373;  Brown 

iSee   observations   in   Cook   v.  u  Brown,  53  Mo.  Ap.  453;  Johns  u 

Cook,  1  Barb.  Ch.  639;  Dailey  v.  Johns,  57  Miss.  530.    See  statute  of 

Dailey,  Wright,   514;  Williams  v.  Michigan   in    Klein    v.  Klein,  47 

Williams,  4  Des.  183.  Mich.  518,  fixing  custody  of  chil- 

2  Brown  v.  Brown,  53  Mo.  Ap.  453.  dren    in    mother  if  children   are 

8  Messenger  v.  Messenger,  56  Mo.  under   twelve    years    of  age.    In 

529;    Umlauf  v.  Umlauf,  128  lU.  Miner  v.  Miner,  11  111.  43,  children 

378;   Leavitt  v.  Leavitt,  Wright,  at  seven  or  eight  were  considered 

719;  Luthe  v.  Luthe,  13  Colo.  431;  of  tender  years,  and  in  need  of 

Thiesing  v.  Thiesing  (Ky.),  36  S.  W.  "  that  tender  care  which  nature 

718.  requires,  and  which  it  is  the  pecul- 

*  Luck  V.  Luck,  93  CaL  653,  38  P.  iar  province  of  a  mother  to  sup- 

787.  ply." 


940  CUSTODY   AND    SUPPOET   OP   OHILDEEN.  [§  977. 

needs  a  mother's  attention  and  care  until  years  of  discretion 
are  reached.^  But  one  court  has  concluded  that  when  a. 
child  is  three  years  old,  "the  tender  nursing  period  has- 
passed  by,  and  the  time  for  moral  training  and  impressions- 
has  arrived."  ^  This  is  perhaps  an  extreme  case,  as  older 
children  are  usually  awarded  to  the  mother.  The  best  in- 
terest of  the  child  'is  to  be  determined  by  the  court,  and  no- 
absolute  rule  can  be  given. 

As  a  rule  the  mother  is  preferred  as  a  custodian  for  the 
daughters,  and  the  sons  are  awarded  to  the  father,  as  each 
parent  may  have  some  peculiar  advantage  in  training  a 
child  of  the  same  sex.'  The  fact  that  one  or  both  parties, 
have  married  again  may  change  this  practice,  since  the  ques- 
tion will  then  be,  Which  home  will  be  the  best  for  the  child?* 
On  the  death  of  the  parent  in  custody  of  the  child,  the  sur- 
vivor has  a  right  to  present  his  claims  to  the  custody  of  the 
child ; '  and  the  deceased  parent  has  no  right  to  appoint  a 
testamentary  guardian.^  The  child  remains  the  ward  of  the 
court,  and  the  decree  may  grant  the  custody  to  the  survivor 
on  his  application.^ 

§977.  Custody  during  siiit  for  divorce. —  The  custody 
of  the  children  of  the  parties  in  a  suit  for  divorce  is  not 

1  See  Eeeves  v.  Reeves,  75  Ind.  court  and  granted  the  custody  to 
343.  the  mother  in  accordance  with  the- 

2  Carr  v.  CaiT,  33  Gratt.  168.  wishes  of  the  child,  which  was  held 

3  See  Greenleaf  v.  Greenleaf  (S.  to  have  attained  sufficient  disore- 
D,),  61  N.  W.  43.  tion  to  make  an  intelligent  choice. 

*In  Hewitt  v.  Long,  76  111.  399,  In  both  the  opinion  and  the  dis- 

the  father  of  the  child,  a  girl  of  senting  opinion  the  relative  claims 

fourteen,  applied  for  a  modifica-  of  the  parents  are  considered  at 

tion  of  the  decree  of  (Jivorce  and  greatlength. 

for  the  custody  of  the  child.    The  '"  Schammel    v.    Schammel,    105 

mother  had  allowed  the  child  to  Cal.  258,  38  P.  739. 

remain  with  her  father  and  mother,  ^Blackburn,  In  re,  41  Mo.   Ap. 

the  child's  grandparents,  until  her  623;  Davis  v.  Davis,  14  P.  D.  162. 

marriage.     The  father   had  mar-  See,  under  Texas  statute,  McKin- 

ried,  and  had  the  best  home  and  ney  v.  Noble,  38  Tex.   195;   S.  r. 

more  ample  means  for  the  educa-  ReufE,  29  W.  Va.  751. 

tion  of  the  child;  but  the  court  'See,  contra.  Hill  v.  Hill,  49  Md. 

reversed  the  decision  of  the  lower  450. 


§  977.]  CUSTODY    AND    SUPPOKT    OF    OHILDKEN.  9J:1 

finally  determined  until  the  decree  is  rendered.  The  statutes 
generally  provide  that  when  a  divorce  has  been  rendered 
the  court  may  make  such  order  concerning  the  care,  custody 
and  maintenance  of  the  children  as  from  the  circumstances 
of  the  parties  and  the  nature  of  the  case  shall  be  reasonable 
and  just.  This  statute,  it  wlLl  be  observed,  does  not  give 
the  power  to  fix  the  custody  of  the  children  while  the  suit 
is  pending.  On  the  contrary,  the  power  to  make  ad  interim 
orders  concerning  the  custody  of  children  seems  to  have 
been  excluded  by  the  terms  of  the  statute.  But  under  this 
form  of  statute  it  is  held  that  courts  having  general  chan- 
cery jurisdiction  over  the  custody  of  children  may  make 
ad  interim  orders  in  a  suit  for  divorce.^  And  it  is  clear  that 
the  court,  having  jurisdiction  without  the  suit  for  divorce, 
would  not  be  deprived  of  jurisdiction  by  the  pendency  of 
such  suit  on  its  own  docket.  It  is  held  the  power  to  make 
ad  interim  orders  may  be  implied  from  the  general  terms  of 
the  statute  relating  to  the  custody  of  children  on  divorce.'^ 
This  construction  is  not  to  be  approved,  however,  as  the 
statute  contemplates  an  order  made  after  decree.' 

The  order  ad  interim  must  be  applied  for  and  sustained 
by  some  showing.  Ordinarily  the  party  having  the  custody 
win  be  allowed  to  retain  it  unless  some  good  reason  appears 
why  the  children  should  be  given  to  the  custody  of  the  ap- 
pUcant.*  On  the  hearing  of  this  application  the  court  will 
act  upon  the  showing,  but  will  not  attempt  to  determine,  in 
advance,  the  merits  of  the  suit.^  The  application  like  one 
for  temporary  alimony  should  show  probable  cause.  Where 
the  welfare  of  the  children  does  not  demand  immediate 
change  the  court  wiU  generally,  in  the  exei-cise  of  its  dis- 
cretion, permit  the  party  having  possession  of  the  children 

i/w  re  Morgan,  117  Mo.  349,  21  nam  v.  Putnam,  3  Code  K.  122;  P. 

S.  W.  1132,  23  S.  W.  913;  Scoggins  v.    Paulding,    15    How.    Pr.    167; 

V.  Scoggins,  80  N.  C.  318;  Gilpin  v.  Green  v.  Green,  53  la.  403. 

Oilpin,  13  Colo.  504,  31  P.  613.  *  Day  v.  Day,  4  Misc.  235,  34  N. 

2  In  re  Morgan,  supra.  Y.  Supp.  873. 

3  See  construction  of  statute  per-  5  Eyder  v.  Eyder,  3  Swab.  &  T. 
mitting  ad  interim  orders.    Put-  335. 


942  CUSTODY   AlTD    SUPPOET   OF   CHILDEEN.  [§  978. 

to  retain  it  during  the  suit  and  grant  the  other  party  reason- 
able access  from  time  to  time.' 

Other  courts  will  not  interfere  by  Tiaheas  corpus  or  other- 
"wise  to  fix  the  custody  of  a  child  when  the  court  having- 
jurisdiction  of  the  parties  in  the  divorce  suit  has  made  an. 
order  for  the  temporary  custody  of  the  children  pending 
the  suit  for  divorce.^  The  welfare  of  the  child  and  its  fut- 
ure support  are  so  dependent  upon  the  result  of  the  suit 
that  the  pendency  of  the  suit  should  deprive  other  courts 
from  interfering  in  the  matter.'  The  power  to  make  a  tem- 
porary order  for  custody  pending  suit  includes  the  power 
to  make  a  similar  order  while  the  suit  is  pending  on  appeal.*' 

§  978.  Access  to  children. —  The  court  usually  grants  the- 
custody  to  one  party  and  allows  the  other  party  reasonable 
access  to  the  child.*  The  parent  deprived  of  custody  has 
no  absolute  right  to  access  to  the  children,  as  the  court  may 
refuse  the  same  for  the  best  interest  of  the  child.  This 
power  will  be  rarely  exercised.  The  practice  once  was  to 
deny  an  adulteress  all  access  to  her  children.*  But  it  is  now 
conceded  to  be  within  the  discretion  of  the  court,  and  the 
feelings  of  the  guilty  party  are  now  considered.''  In  fact  it 
is  better  for  the  child  to  be  acquainted  with  both  parents,. 

iDayu  Day,  4  Misc.  233,  24  N.  5  Haley  v.  Haley,   44  Ark  429; 

T.  Supp.  873;  Boynton  v.  Boynton,  Campbell  v.  Campbell,  37  Wis.  206:, 

1  Swab.   &  T.  324;   Thompson  v.  Oliver    u   Oliver,   151  Mass.    349;. 

Thompson,  2  Swab.  &  T.  402;  Cur-  Bailey  u  Bailey,  17  Or.  114.  19  P. 

tis  V.  Curtis,  1  Swab.  &  T.  75.  844;  Hill  v.  Hill,  49  Md.  450.    The 

2  In  re  Morgan  (Mo.),  supra.  failure  to  allow  a  party  access  i» 

3  In  re  Delano,  87  Mo.  Ap.  185.  not  error.  The  remedy  is  to  apply 
But  other  courts  have  interfered  for  a  modification  of  the  decree  in 
on  the  ground  that  before  a  di-  this  respect.  Burge  v.  Burge,  88 
vorco  is  rendered  the  court  has  111.  165. 

no  power  to  make    a  temporary  6  Seddon  v.  Seddon,  3  Swab.  &  T. 

order  concerning  the  custody  of  640;  Clout  v.  Clout,  2  Swab.  &  T. 

the  children.    Ex  parte  De  Ange-  391. 

lis,  Edmond's  Sel.  Cas.  476.  '  Taylor  v.  Taylor,  29  L.  J.  (P.  & 

*In  King  v.  King,  43  Mo.  Ap.  M.)  150;  Symington  a;.  Symington,. 

454,  such  order  is  said  to  be  void,  L.  E.  3  So.  &  D.  415. 
as  interfering  with  the  jurisdiction 
of  the  appellate  court. 


§  979.]  CUSTODY    AOT>    SUPPORT    OF    CHILDREN.  943 

and  the  court  will  not  permit,  one  parent  to  prejudice  th& 
child  against  the  other.  Access  will  be  denied  where  it  is- 
shown  that  it  is  abused  by  causing  dissensions  in  the  family 
and  arousing  discontent  in  the  child.^ 

It  is  the  policy  of  our  courts  to  permit  both  .parents  tO' 
have  access  to  the  children,  and  for  this  reason  the  order 
may  provide  that  the  child  shall  not  be  removed  beyond  the 
jurisdiction  of  the  court  or  out  of  the  state.^  But  where  it 
is  urged  that  one  party,  otherwise  a  proper  custodian,  will  re- 
move the  child  to  another  state,  such  person  has  been  granted 
the  custody.'  The  advisability  of  permitting  one  parent  to' 
remove  the  child  to  another  state  is  a  matter  clearly  within 
the  jurisdiction  of  the  court,  and,  like  all  questions  relating- 
to  mutual  claims  of  the  parents,  must  be  determined  by  the 
best  interests  of  the  child.* 

§  979.  Custody  where  a  divorce  is  denied. —  Under  stat- 
utes granting  power  to  fix  the  custody  of  children  where  a 
divorce  is  rendered,  or  "  during  the  pendency  of  the  cause, 

'  Handley  v.  Handley,  1  Probate  not  personally  be  within  the  juris- 

(1891),  124  diction  of  the  court;  the  subject- 

2  Hewitt  V.  Long,  76  lU.  399;  Um-  matter  is  such  that  the  judgment 
lauf  V.  XJmlauf,  35  111.  Ap.  634;  of  the  court  will  be  valid  and  bind- 
Eckard  v.  Eckard,  29  Neb.  457;  ing  upon  her,  and  by  the  constitu- 
Ryce  V.  Byce.  53  liid.  64;  Miner  v.  tion  of  the  United  States  may  be 
Miner,  11  111.  43;  Clarke,  In  re,  17  enforced  against  her,  though  in 
Jur.  362,  17  Eng.  Law  &  Eq.  599;  another  state."  Stetson  v.  Stetson, 
Dawson  v.  Jay,  2  Eng.  Law  &  Eq.  80  Me.  483,  15  A.  60. 

451.    See  criticism  of  English  au-  ■•  Where    a    decree    of    divorce- 

thorities  in  Hewitt  v.  Long,  supra,  awards  the  custody  to  one  party 

in  dissenting  opinion.  and  does  not  prohibit  a  removal 

3  Adams  u  Adams,  1  Duv.  167;  from  the  state,  but  grants  access 
BuUen,  In  re,  38  Kan.  781.  There  to  the  other  party,  the  inference  is 
is  a  dictum  that  there  is  no  au-  that  the  child  shall  remain  where 
thority  to  prevent  the  parent  from  both  parties  then  reside.  Camp- 
removing  the  child  from  the  state  bell  v.  Campbell,  37  111  206.  But 
and  that  the  court  retains  juris-  a  removal  will  not  place  the  party 
diction  to  change  the  custody  of  in  contempt  of  court  where  the 
the  child  after  the  removal.  "  On  interests  of  the  child  are  thereby 
any  proper  process  for  a  change,  promoted.  Id.  Such  removal  does 
she  is  bound,  wherever  she  may  not  give  the  other  party  a  right  to 
be,  to  take  notice,  though  she  may  obtain  the  custody  of  the  child- 


Dii  CUSTODY   AND    STJPPOET    OF    OHILDEEN.  [§  980. 

or  at  its  final  hearing,  or  afterwards,"  it  has  been  held  that 
the  courts  have  no  authority  to  fix  the  custody  of  the  chil- 
dren where  a  divorce  is  denied.'  It  is  said  that  this  juris- 
diction is  purely  statutory,  and  such  relief  must  be  refused 
because  it  is  not  provided  for  in  the  statute.  Eut  it  is  not 
■denied  that  the  court  has  jurisdiction  to  fix  the  custody  in  a 
subsequent  proceeding  by  habeas  corpus,  and  it  seems  useless 
to  deny  the  relief  in  a  divorce  and  grant  it  in  another  suit 
for  the  same  purpose  in  states  where  the  different  forms 
of  action  are  abolished.  When  the  parties  are  before  the 
court  and  their  domestic  affairs  have  been  the  subject  of  ju- 
dicial investigation,  it  would  seem  to  be  the  proper  time  to 
adjudicate  the  rights  of  the  parents  to  the  custody  of  the 
children,  as  the  court  has  jurisdiction  of  the  parties  and  the 
subject-matter.  In  some  states  this  relief  wiU  be  granted 
where  divorce  is  denied.^  But  the  court  may  in  its  discre- 
tion refuse  to  make  any  order  concerning  the  children  if 
the  circumstances  do  not  require  it.'  The  good  of  the  child 
determines  the  custody  where  a  divorce  is  denied,  and  the 
same  considerations  will  influence  the  discretion  of  the 
^ourt.'' 

§  980.  Effect  of  order  of  custody  rendered  in  another 
state. —  An  order  of  custody  rendered  in  another  state  by 
a  court  having  jurisdiction  over  both  parents  is  valid  and 
binding  as  to"  their  rights  to  the  children.  Such  order  is 
not,  however,  res  judicata  as  to  the  right  of  the  state  to  de- 
termine the  custody  of  the  child.  The  decree  of  another 
state  may  be  binding  as  to  the  parties,  but  the  courts  of 
each  state  will  have  the  right  to  determine  anew  who  shall 
be  entitled  to  the  custody  of  the  cMld,'  and  where  its  wel- 
fare requires,  the  courts  of  the  latter  state  may  commit  the 

Joab  V.  Sheets,  99  Ind.  339.    It  is,  s  Brenot  v.  Brenot,  102  CaL  394, 

however,  a    circumstance   in  his  36  P.  673. 

favor.  ^  Cornelius  v.  Cornelius,  31  Ala. 

1  Davis  V.  Davis,   75  N.  Y.  331;  479. 

Keppel  u  Keppel  (Ga.),  17  S.  E.  976.        ^Kentzler  v.  Kentzler,  8  Wash. 

2  See  Luck  v.  Luck,  93  Cal.  653.    St.  166,  38  P.  370. 
•28  P.  787. 


§  980.]  CTTSTODT    AND    SUPPOKT    OF   CHILDREN.  9J:5 

■child  to  the  custody  of  a  third  person.^  Where  a  wife  ob- 
tained a  decree  of  divorce  from  the  husband  in  Illinois,  and 
the  husband,  after  having  answered  in  the  case,  left  the 
state  and  removed  the  children  to  ISTew  York  to  avoid  the 
decree  of  the  court,  on  habeas  corpus  by  the  wife  to  obtain 
the  possession  of  the  children  it  was  held  that  the  Illinois 
decree  awarding  the  wife  the  custody  of  the  children  did 
not  operate  as  an  estoppel,  but  only  as  a  fact  bearing  on  the 
discretion  of  the  court  in  arriving  at  a  proper  custody  of  the 
children  in  the  circumstances  of  the  case.''  In  these  cases 
the  right  of  the  state  to  change  the  guardian  or  custodian 
is  recognized.  But  in  other  decisions  it  is  held  that  the 
order  of  a  court  having  jurisdiction  over  the  child  is  res  ad- 
Judicata  as  to  all  parties,  and  the  power  to  change  the  cus- 
tody of  the  child  is  never  lost  although  the  parents  and 
child  leave  the  state.'  And  all  applications  to  change  the 
decree  must  be  made  to  the  court  granting  the  order.^ 

It  is  clear  that  a  decree  based  upon  constructive  service 
is  void  for  lack  of  jurisdiction  so  far  as  it  attempts  to  fix 
the  custody  of  a  child  residing  with  the  defendant  in  an- 
other state.'  It  is  not  res  adjudicata  as  to  the  defendant  or 
as  to  the  interest  of  the  state  in  which  the  child  resides. 
But  a  valid  order  may  be  made  where  the  child  is  within  the 
state  although  the  defendant  is  a  non-resident  and  is  served 
by  publication.*  In  such  case  the  court  had  jurisdiction  to 
determine  the  custody  of  the  child  as  well  as  the  status  of 
the  plaintiff,  the  jurisdiction  being  obtained  by  the  same 
process.  The  court  in  which  the  divorce  is  rendered  may 
fix  the  custody  of  children  although  they  are  residing  in  an- 
other state.     The  order  in  such  case  is  an  adjudication  of 

l/wreBort,  25  Kan.  308.  <Id.;   Baily  v.  Schrader,  34  la. 

2  P.  V.  Allen.  105  N.  Y.  638,  af-  260. 

firming  40  Hun,  611;  Thomdyke  v.  5  Kline  v.  Kline,  57  la.  886;  Har- 

Eice,  24  L.  Rep.  19.                      -  ris  v.  Harris  (N.  C),  20  S.  E.  187. 

'Stetson  V.  Stetson,  80  Me.  483;  «  Wakefield  v.  Ives,  35  la.  238. 
Wakefield  v.  Ives,  35  la,  238. 
60 


946  CUSTODY   AISTD    SUPPOET    OF   CHILDEEN.  [§  981.. 

the  rights  of  both  parties  where  there  is  personal  service 
upon  the  defendant.' 

§  981.  Support  of  children  after  divorce. —  The  statute 
confers  a  discretionary  power  upon  the  courts  to  require 
either  the  husband  or  the  wife  to  support  their  children  until 
majority.  This  power  is  greater  than  that  of  any  court  previ- 
ously existing  in  England.^  Courts  of  equity  could  order 
children  to  be  maintained  out  of  their  own  property,  but  not 
otherwise.  Such  courts  could  not  compel  the  husband  to 
support  his  children.'  The  father  was  liable  to  others  for 
their  support  where  he  both  deserted  and  neglected  them,  but 
not  while  they  remained  with  him.  It  is  a  rule  of  the  comr 
mon  law  that  the  duty  of  support  follows  the  right  of  cus- 
tody. But  this  rule,  though  based  upon  reasons  that  still 
survive,  may  be  disregarded  by  the  court  aud  the  support  may 
be  ordered  against  one  who  is  not  entitled  by  the  decree  to 
the  custody  of  the  children.  It  would  seem  that  where  the 
status  of  married  women  has  been  sd)  changed  by  the  statute 
that  they  may  acquire,  own  and  control  their  own  separate 
property,  they  should  support  the  children  awarded  to  them 
by  the  decree.  If  the  wife  has  no  property  and  the  husband 
has,  the  decree  should  award  her  sufficient  property  to  en- 
able her  to  support  the  children  awarded  her.  Experience 
has  shown  that  an  order  for  support,  payable  in  instal- 
ments, is  like  a  decree  for  alimony  in  instalments,  an  oner- 
ous burden  and  difficult  to  enforce.  The  duty  of  support 
will  be  best  performed  where  the  means  are  furnished  di- 
rectly by  the  parent  instead  of  sums  of  money  paid  to  one 
who  has  ceased  to  be  a  wife  or  an  object  of  affection. 

"When  the  marriage  is  dissolved  it  is  clear  that  the  duty 
of  the  parents  to  maintain  them  after  divorce  remains  as 
before,  for  children  are  not  parties  to  the  divorce  suit  and 
lose  no  rights  thereby.    After  divorce  the  parents  become 

1  Avery  v.  Avery,  33  Kan.  1.  '  Thomassett    v.    Thomassett,    6 

2  Marsh  v.  Marsh,  1  Swab.  &  T.    Rep.  (1894),  637. 
313;  Spratt  v.  Spratt,  1  Swab.  &  T. 

2I5. 


§  981.]  CUSTODY   AND    SUPPOET   OF   CHILDREN.  947 

in  law  as  strangers  to  each  other,  except  as  provided  in  the 
decree.  The  liability  of  the  husband  to  the  divorced  wife 
is  therefore  the  same  as  it  would  be  to  a  third  person  who 
had  furnished  necessaries  to  the  children,  with  the  excep- 
tion that  the  wife  is  under  some  obligation  to  support  her 
own  children.  ^  At  the  common  law  the  husband  was  pri- 
marily liable  for  the  support  of  his  minor  children.^  But  the 
reasons  for  the  common  law  do  not  obtain  where  the  statute 
has  changed  the  rights  of  married  women  to  such  an  extent 
as  to  permit  her  to  own  and  control  separate  property.  It 
would  seem  that  her  duty,  after  a  divorce  ^\'hich  makes  no 
order  concerning  the  custody  and  support  of  the  children, 
would  be  to  contribute  to  their  support  according  to  her 
means.  This  is  intimated  in  some  of  the  cases.'^  The  rule 
appears  to  be  that  he  is  liable  to  her  for  their  support  after 
divorce.'  But  the  effect  of  the  statute  relating  to  married 
women  renders  this  an  open  question.* 

When  the  divorce  is  granted  it  is  the  duty  of  the  court  to 
prevent  all  questions  as  to  support  b}-  fixing  the  liability  in 
the  decree.  And  this  may  be  done  although  there  is  no 
reference  to  the  children  in  the  pleadings.'^  The  amount  of 
the  support  necessary  for  the  children  is  to  be  equal  to  what 
they  would  have  received  if  a  divorce  had  not  b^en  rendered, 
and  is  dependent  upon  the  circumstances  of  the  parties.*  A 
suitable  allowance  may  be  made  for  the  education  of  the 

■  Reynolds  v.  Sweetzer,  15  Gray,  wife,  who  is  also  guardian  for  her 

78;  Kimball  r.  Keyes,  11  Wend.  83;  children,   is  personally  liable  for 

Walker  v.  Leighton,  11  Fost.  (N.  H.)  the    care    and    education    of   her 

111;    Gill    t:    Read,   5    R.    I.   343;  children,    although    she    contract 

Bazeley  r.  Forder,  L.  R.  3  Q.  B.  ."JoQ;  for  the   same  as  their  guardian. 

Atkyns  v.  Pearce,  3  C.  B.  (N.  S.)  Aldrich  v.  More,  5  N.  Y.  Supp.  330. 

763;  Baldwin  v.  Foster,  138  Mass.  ^Snover  v.  Snover,  10  N.  J.  Eq. 

449.  261;  Morgan.  In  re,  117  Mo.  349,  31 

2 Harris    v.  Harris,   5    Kan.   46;  S.  W.  1123;  Gordon,  Ex  parte,  95 

Lapworth  v.  Leach,  79  Mich.  17;  Cal.  374,  30  P.  561. 

Pawling  V.  Wilson,  13  Johns.  193.  <>  Wuest  v.  Wuest,  17  Nev.  317; 

'  Stanton  i\  Wilson,  3  Day,  37.  Webster  v.  Webster,  3  Swab.  &  T. 

■•  See  dissenting  opinion  in  Pierce  106;  Plaster  v.  Plaster,  53  111.  445; 

V.  Pierce,  64  Wis.  73.     A  divorced  Id.,  67  111.  93. 


94:8  CUSTODY   AND    SUPPOET   OF   CHILDEBN.  [§  981. 

children.^  If  the  court  has  made  no  provision  for  custody 
and  support  in  the  decree,  or  has  granted  the  custody  to  the 
wife  without  provision  for  their  support,  the  provision  may 
be  afterwards  made  upon  petition  or  motion  and  notice  to 
the  husband.^  Where  the  statute  provides  that  the  court 
shall  have  power  to  modify  the  order  at  any  time  after  the 
decree,  it  is  clear  that  the  court  granting  the  order  of  custody 
will  retain  jurisdiction  not  only  as  to  questions  of  custody, 
but  also  as  to  support,  and  a  wife  cannot  maintain  an  action 
in  another  court  to  recover  the  expense  of  keeping  the  chil- 
dren. Her  only  remedy  is  to  apply  to  have  the  ord^r  modi- 
lied  by  the  court  which  granted  it.'  And  upon  the  hearing 
the  court  may  render  complete  justice  and  order  the  hus- 
band to  pay  for  past  support.*  The  power  to  grant  relief 
as  to  support  already  furnished  is  doubtful.  The  support 
without  decree  should  be  presumed  voluntary  unless  the 
circumstances  show  an  agreement  for  conapensation.'  The 
amount  of  the  allowance  should  be  stated  separately  and  not 
included  in  the  sum  allowed  as  alimony.^  For  where  ali- 
mony is  allowed  and  the  decree  is  silent  as  to  the  main- 
tenance of  the  children,  it  is  held  that  the  alimony  is  for  the 
wife  alone.''  The  property  of  the  parties  cannot  be  set  apart 
except  as  maintenance  for  the  children  during  their  minor- 
ity.'   The  ordinary  form  of  the  statute  directing  a  provision 

•  Heninger  v.  Heninger  (Va.),  18  *  Plaster  v.  Plaster,  supra;  Holt 

S.  W.  193.  V.  Holt,  supra;  and  Washburn  v. 

2  Wilson  w  Wilson,  45  Cal.  399;  Catlin,  sttpra. 

Plaster  v.  Plaster,  47  111.  390;  Holt  5  Chester  v.  Chester,  17  Mo.  Ap. 

V.  Holt,  42  Ark.  495;  Buckminster  657. 

V.  Buckminster,  38  Vt.  348;  King  « Johnson  v.  Johnson,  36  111.  Ap. 

uMiller(Wash.),  38P.  1030;  Erken-  152;  Zuver  v.  Zuver,  36  la.   190; 

bradh  v.  Erkenbraoh,  96  N.  Y.  456;  Wheildon'ti.  Wheildon,  3  Swab.  & 

Washburn  v.  Catlin,  97  N.  Y.  623.  T,  388. 

As  to  power  under  revised  code  see  ^  Pretzinger  v.  Pretzinger,  45  O. 

Wells  V.  Wells,  10  N.  Y.  St.  Eep.  St.  453;  Eogers  v.  Rogers  (Ohio),  36 

348;  Chamberlain  v.  Chamberlain,  N.  E.  310;  Eiohmond  v.  Richmond, 

17  N.  Y.  Supp.  578.  1  Green  Ch.  90;  Foote  v.  Foote,  23 

SMcNees  v.  McNees  (Ky.),  80  S.  111.  435;  Dow  v.  Dow,  38  N.  H.  188. 

W.  207.  8  Fitch  V.  Cornell,  1  Saw.  156. 


§  982.]  CUSTODY   AJSTD    S0PPOET   OF   CHILDREN.  949 

for  the  support  does  not  confer  the  power  to  transfer  prop- 
erty to  the  wife  to  be  held  in  trust  for  the  children.*  The 
wife  may  be  compelled  by  the  decree  to  support  the  children 
after  divorce.^  The  court  in  estimating  the  amount  of  ali- 
mony should  consider  the  rights  of  the  children  as  para- 
mount, and  may  refuse  alimony  for  the  reason  that  the  hus- 
band's income  is  sufficient  for  the  support  of  the  children 
only.  The  custody  of  the  children  may  be  withheld  from 
her  by  the  terms  of  the  decree  until  she  undertakes  to  com- 
ply with  what  is  just.  In  the  absence  of  statute  it  is  held 
that  the  court  has  no  power  to  compel  the  husband  to  secure 
the  payment  of  the  maintenance.'  But  the  term  "  such  order 
as  may  be  just  and  proper"  is  broad  enough  to  authorize  a 
court  to  exercise  its  discretion  as  to  the  security  to  be  given.'' 
§  982.  Support  where  decree  is  silent  as  to  custody. — 
If  the  decree  is  silent  as  to  the  custody  of  the  children,  the 
liability  of  the  father  to  the  divorced  wife  for  the  support 
of  the  children  is  the  same  as  his  liability  to  any  other 
stranger.  For  upon  divorce  the  obligations  of  marriage  are 
canceled  and  the  parties  become  as  other  strangers.  Where 
the  father  neither  refuses  nor  neglects  to  furnish  his  chil- 
dren with  necessaries,  a  stranger  cannot  supply  them  at  his 
charge.*  But  he  will  be  liable  to  a  third  person  for  neces- 
saries furnished  to  his  children  if  he  neglects  or  deserts 
them.®    It  is  therefore  clear  that  if  the  divorced  wife  sup- 

1  Simpson  v.  Simpson,  80  Cal.  337.  secure  the  payment  of  the  main- 
But  see  contra,  Doscher  v.  Blackis-  tenance  is  not  thereby  released, 
ton,  7  Or.  403.  Miller  v.  Miller,  64  Me.  484. 

2  See  form  of  statute  set  out  in  sGottsu  Clark,  78  111.  239;  Eog- 
Cheever  v.  Wilson,  9  Wall.  (U.  S.)  ers  v.  Turner,  59  Mo.  116. 

134;  Seatel  v.  Seatel,  4  Swab.  &  T.  « Dennis  v.  Clark,  3  Cusli.   353; 

230.  Parson  on  Contracts,  353,  354;  Gor- 

3  Hunt  V.  Hunt,  8  P.  D.  161.  don  v.  Potter,  17  Vt.  348,  approved 
*  A  decree  awarding  custody  of  by  Tyler  on  Infancy,  §  65;  Stanton 

the  children  to  the  wife  and  com-  r.  Wilson,  3  -Day  (Conn.),  37 ;  Weeks 

pelling  the  husband  to  support  the  v.  Merrow,  40  Me.  151 ;  Gill  v.  Read, 

cliildren  until  the  further  order  of  5  R.  I.  343;  Ruraney  v.  Keyes,  7  N. 

the  court  is  not  discharged  by  his  H.  571.    While  this  is  a  much  dis- 

death,  and  a  surety  on  his  bond  to  puted  question,  it  seems  to  be  most 


950  CUSTODY   AND    SUPPOET   OF   CHILDEElSr.  [§983. 

ports  the  children  Avithout  a  decree  giving  her  the  custody 
of  them,  the  husband  is  liable  to  her  for  their  maintenance 
under  a  contract  implied  by  the  law.'  But  if  the  husband 
obtains  divorce  because  the  wife  has  left  him,  and  she  re- 
tains the  custody  of  their  child,  and  the  decree  is  silent  as 
to  its  custody  and  support,  no  contract  to  pay  for  its  sup- 
port will  be  implied."^  This  is  perhaps  the  true  doctrine  of 
our  unwritten  law.  There  are  some  authorities  which  hold 
the  husband  liable  to  the  wife  for  the  support  of  the  chil- 
dren W'here  the  decree  is  silent  as  to  custody  and  support, 
on  the  ground  that  his  obligation  continues  and  is  not  dis- 
charged by  divorce.'  These  cases  do  not  discuss  the  status 
of  divorced  parties  or  the  presumption  that  the  support  was 
voluntary.  It  is  admitted  by  all  that  the  liability  of  the 
husband  is  not  discharged  by  divorce,  but  the  principle  over- 
looked is  his  liability  to  the  wife,  which,  after  divorce,  is  no 
greater  than  his  liability  to  any  other  person. 

§  983.  Support  where  custody  awarded  to  wife. —  Th& 
father  is  not  liable  for  the  support  of  his  children  where  the 
decree  has  granted  the  custody  of  the  children  to  the  wife 
and  contains  no  provision  for  their  support.^  There  are 
several  reasons  for  this.  The  statute  having  made  it  the 
duty  of  the  court  to  provide  for  the  custody  and  mainte- 
nance of  the  children  on  divorce,  it  will  be  presumed  that 
the  decree  has  made  all  the  provision  that  was  necessary. 
The  decree  is  conclusive  as  to  the,  mutual  rights  and  obliga- 
tions of  the  parties,  subject  to  the  right  to  have  such  decree 
modified  as  subsequent  exigencies  may  require.  The  di- 
vorce makes  the  parties  strangers.     The  father  is  not  liable 

in  accord  with  established    prin-  2  Fitler  v.  Fitler,  33  Pa.  50. 

ciples  of  law  to  hold  the  husband  *  Buckminster  v.  Buckminster,  38 

liable  only  when  he  casts  his  chil-  Vt.  248;  Courtright  u  Courtright, 

dren  upon  the  mercy  of    others,  40  Mich.  633;  Holt  v.  Holt,  43  Ark. 

otherwise  the    stranger,  and  not  495;    Lusk    u   Lusk,    28    Mo.    91; 

the  parent,  can  choose  what  seems  Chester  v.  Chester,  17  Mo.  Ap.  657. 

best  for  the  child.  *  Harris    v.  Harris,   5    Kan.   46; 

iGilley  u   Gilley,   79    Me.    293;-  Chandler  u  Dye,  37  Kan.  765,  15  P. 

Maddox  v.  Patterson,  80  Ga.  719.  935. 


§  983.]  CUSTODY   AND    SUPPORT    OF   CHILDREN.  951 

to  a  stranger  who  furnishes  the  children  with  necessaries 
unless  under  such  circumstances  that  a  contract  will  be  im- 
plied.' 

Thus  in  a  recent  case  the  wife  was  denied  remuneration 
for  the  support  of  a  child  where  she  had  been  awarded  the 
custody  of  the  child  and  the  decree  was  silent  as  to  its 
support.  The  husband  had  obtained  a  decree  of  absolute 
divorce,  and  the  wife  had  not  appealed  from  that  portion  of 
the  decree  awarding  her  the  custody  of  the  child  without 
providing  for  its  support.  Nor  had  she  moved  for  a  modifi- 
cation of  the  decree  in  this  respect.  It  was  said,  "  the  law 
presumes  that  every  question  involved  in  the  actionin  which 
the  judgment  was  rendered  —  and  the  right  of  the  plaintiff 
to  an  allowance  for  the  maintenance  of  the  child  was  one  of 
those  questions  —  was  passed  on  by  the  court,  and  that  the 
■claim  for  such  maintenance  was  decided  adversely  to  the 
plaintiff."  ^  Accordingly  it  is  held  that  the  divorced  husband 
is  not  liable  to  his  divorced  wife  for  necessaries  furnished  a 
child  in  her  custody  unless  by  agreement  express  or  impKed.' 
Under  such  circumstances  her  support  is  the  voluntary  per- 
formance of  a  natural  duty.*  Her  remedy  was  to  apply  for 
maintenance  for  the  children  when  the  divorce  was  rendered 
and  the  custody  awarded  to  her.  Even  where  the  husband 
■obtains  a  divorce  and  the  custody  of  the  childi'en  is  awarded 
to  the  wife,  the  court  must  make  some  order  ior  the  support  of 
the  children.  Where  the  wife  is  without  sufficient  means  it 
is  error  to  make  no  order  concerning  the  maintenance  of  the 
children.* 

1  See  Shelton  v.  Springett,  11  C.  2  Rich  v.  Rich,  88  Hun,  566,  34  N. 

B.  453,  20  Eng.  Law  &  Eq.  283;  Y.  Supp.  854. 

Gordon  v.  Potter,  17  Vt.  348;  White  » Ramsey  v.  Ramseyj  121  Ind.  215, 

V.  Mann,   110    Ind.    74;   Schouler,  23  N.  E.  69;  Cushman  ».  Hassler,83 

Dom.  Rel.,  §  241;  Kelly  w  Davis,  49  la.  295,  47  N.  W.  1036;  Burritt  v. 

N.  H.  186;  Porter  v.  Powell,  79  la.  Burritt,  39  Barb.  124. 

151.    See,  also,  Finch  v.  Finch,  32  -  *  Fulton  v.  Fulton  (Ohio),  39  N.  E. 

■Conn.  413,  as  modified  by  Welch's  739. 

Appeal,  43  Conn.  342.  5  Tuggles  v.  Tuggles  (Ky.),  30  S. 

W.  875. 


952  CUSTODY    AND    SUPPOET    OF   CHILDEEIT.  [§  983.. 

Another  reason  for  relieving  the  husband  from  liability 
for  the  support  of  the  children,  where  the  custodj'  is  awarded 
to  the  wife,  is  that  he  has  no  longer  the  right  to  take  the- 
child  and  support  it  himself  or  to  employ  others  to  support 
it.i  "While  the  wife  has  custody  of  the  children  by  virtue  of 
a  decree  of  divorce  the  husband  is  not  entitled  to  their  serv- 
ices, and  is  therefore  not  liable  for  their  maintenance ;  for  the 
custody  of  the  child  and  the  obligation  of  support  are  re- 
ciprocal rights  and  obligations.^  Where  the  custody  of  the 
child  is  awarded  to  the  mother,  the  presumption  is  that  the 
court  granted  all  the  relief  that  the  circumstances  required,, 
and  if  the  wife  desired  the  husband  to  support  the  child  her 
remedy  was  to  have  the  decree  amended  by  a  further  order 
for  the  support  of  the  child.'  It  is  a  question  which  might 
have  been  litigated  at  the  time  the  custody  was  awarded. 

The  above  reasons  are  sometimes  overlooked,  and  it  is  held 
the  decree  awarding  the  custody  to  the  wife  does  not  impair 
the  obligation  of  the  husband  to  support  his  children,  and 
therefore  he  is  liable  for  their  support  while  in  her  custody,, 
regardless  of  whether  there  is  a  contract  for  their  support 
either  express  or  implied.' 

The  leading  case  which  holds  the  father  liable,  where  the^ 
wife  is  allowed  alimony  and  the  custody  of  the  children,  as- 
signs as  a  reason  for  such  holding  that  upon  divorce  the 
attitude  of  the  husband  is  the  same  towards  his  children  as 
though  he  had  deserted  them.  The  court  approves  the  doc- 
trine that,  if  a  minor  is  forced  into  the  world  by  cruelty  or 
improper  conduct  of  the  father,  necessaries  may  be  supplied 
and  the  value  thereof  may  be  recovered  from  the  parent. 
"  There  is  evidently  no  satisfactory  reason,"  said  the  court, 
"  for  changing  the  rule  of  liability  when,  through  ill-treat- 
ment or  other  breach  of  marital  obligation,  the  husband 

•Brow  V.  Brightman,  136  Mass.  Conn.  410;  Hancock  v.  Merrick,  10' 

187.  Cush.  41. 

2  Husband  v.  Husband,  67  Ind.        3  Burritt  v.  Burritt,  supra, 
583;  Johnson  w.  Onstead,  74  Mich.        ^  Plaster  v.  Plaster,   47  III   290 j 

437,  43  N.  W.  63;  Finch  v.  Finch,  33  Conn  v.  Conn,  57  Ind.  833. 


§  984.J  CUSTODY    AND    SUPPORT   OF   OHILDEEN.  963 

renders  it  necessary  for  a  court  of  justice  to  divorce  the  wife 
and  commit  to  her  the  custody  of  her  minor  children.  If 
under  such  circumstances,  upon  the  allowance  of  alimony 
with  custody  of  children,  the  court  omits  to  make  an  order 
for  the  children's  maintenance,  the  father's  natural  obliga- 
tion to  support  is  of  none  the  less  force.  The  duty  of  sup- 
port is  not  evaded  by  the  husband's  so  conducting  himself 
as  to  render  it  necessary  to  dissolve  the  bonds  of  matrimony 
and  give  to  the  mother  the  care  and  custody  of  the  infant 
offspring.  It  is  not  the  policy  of  the  law  to  deprive  children 
of  their  rights  on  account  of  the  dissensions  of  their  parents, 
to  which  they  are  not  parties ;  or  to  enable  the  father  to 
convert  his  own  misconduct  into  a  shield  against  parental 
liability."  ^  This  reasoning  can  only  apply  where  the  hus- 
band is  at  fault  and  the  decree  is  silent  as  to  his  liability. 

But  where  the  divorce  is  rendered  on  account  of  the  mis- 
conduct of  the  wife  the  reasons  do  not  apply.  The  wife,  if 
given  the  custody  of  the  children,  assumes  the  obligations 
incident  to  such  custody.  "  If  under  these  circumstances, 
where  her  own  misconduct  has  destroyed  the  family  relation 
and  deprived  the  father  of  the  custody  and  society  of  his 
children,  she  has  in  fact  maintained  her  children,  she  has  no 
claim,  either  legal  or  moral,  to  demand  reimbursement  from 
the  father."  ^ 

§  984.  The  order  for  custody  and  support.—  It  is  the 
duty  of  the  court,  on  granting  a  divorce,  to  protect  the  in- 
terest of  the  state  by  providing  for  the  custody  and  support 
of  the  children,  although  there  is  no  prayer  for  such  relief.' 
The  support  of  the  children  is  paramount  to  an^  right  of  the 
wife  to  alimony  or  a  division  of  the  property,  and  should 
therefore  be  first  calculated  and  deducted  from  the  income 
of  the  husband.     The  order  should  provide  that  a  certain 

1  Pretzinger  v.  Pretzinger,  45  729,  approving  Dedham  v.  Natick, 
O.  St.  452,  15  N.  E.  471,  approved  in  16  Mass.  135,  and  Sohouler,  Dom. 
2  Bishop,  Mar.,  Sep.  &  Div.,  §  1223.    Eel.,  §  293. 

For  petition  in  this  case  see  §  757.        '  §  975. 

2  Fulton  V.  Fulton  (Ohio),  39  N.  E. 


■954:        '  CUSTODT   AND    SUPPORT   OF   CHILDREN".  [§  983. 

parent  or  person  shall  have  the  custody  of  the  children  until 
the  further  order  of  the  court,  and  that  the  other  party  shall 
have  reasonable  access  to  the  children  at  certain  times;  that 
the  husband  or  wife  shall  pay  to  the  custodian  or  a  third  per- 
son ^  a  certain  amount  annually  or  monthly  for  the  support  of 
the  child.  The  order  may  require  security  for  the  payments 
of  this  support.  And  if  the  interests  of  the  children  require, 
the  court  may  order  the  child  to  be  kept  in  a  certain  place.^ 
The  order  may  be  enforced  by  habeas  corpus  or  by  proceed- 
ings in  contempt.f  Or  the  party  entitled  to  custody  may 
take  the  child  from  the  other  by  the  use  of  reasonable  force.* 
This  order  is  a  final  order  and  is  subject  to  review  under 
general  statutes  relating  to  appeal.  But  in  some  states  the 
order  is  said  to  be  an  incident  of  the  decree  of  divorce  and 
not  subject  to  separate  review.*  In  New  York  it  is  a  dis- 
cretionary order  not  subject  to  review  on  appeal.* 

§  985.  When  modified. —  The  order  awarding  the  custody 
of  children  may  be  changed  on  subsequent  application  of 
the  parties.''  This  power  is  statutory,  and  gives  the  court 
power  to  vary  the  order  for  custody  and  support  from  time 
to  time  as  the  welfare  of  the  children  may  require.^  The 
order  of  the  court  upon  a  decree  of  divorce  is  binding  upon 
the  parties  as  an  adjudication  of  their  rights  and  as  to  the 

1  An  order  to  pay  to  a  person  not  36  N.  E.  310.  But  see  contra,  Irwin 
a  party  to  the  suit  is  not  void  on  v.  Irwin  (Ky.),  28  S.  W.  664;  Evans 
this  account.    Gordon,  Ex  parte,    v.  Evans  (Ky.),  30  S.  W.  605. 

95  CaL  374,  30  P.  561.    But  see  con-  6  Price  v.  Price,  55  N.  Y.  656 ;  War^ 

tra,  Schammel  v.  Schammel,  105  ring  v.  "Warring,  100  N.  Y.  570.        i 

Cal.  258,  38  P.  729.  '  Umlauf  v.  Umlauf ,  35  111.  Ap, 

2  May  require  the  child  to  be  kept  624;  Umlauf  v.  Umlauf,  27  111.  Ap. 
in  another  county.  Luck  v.  Luck,  375;  Cowls  v.  Cowls,  3  Oilman.  435; 
93  Cal.  653.  Harvey  v.  Lane,  66  Me.  536 ;  Chand- 

3  Ex  parte  Gordon,  95  Cal.  374,  30  ler  v.  Chandler,  24  Mich.  176 ;  Flory 
P.  651;  Nicholls  v.  NichoUs,  3  Duer,  v.  Ostrom,  92  Mich.  633,  53  N.  W. 
€42;  Buck  v.  Buck,  60  IIL  105.  1038. 

^Monjo  u  Monjo,  6  N.  Y.  Supp.  ^Ahrenfeldt    v.    Ahrenfeldt.    4 

133.  Sandf.  Ch.  493.     See  contra,  Crira- 

5  Thompson  v.  Thompson,  5  Utah,  mins  v.  Crimmins,  64  How.  Pr.  103, 

401, 16  P.  400;  Rogers  u  Rogers  (O.),  38  Hun,  200.                          ' 


9S5.] 


CUSTODY   AND    STJPPOET   OF    CHILDREN. 


955 


welfare  of  the  child  at  the  time  the  order  was  made.  The 
power  of  the  court  to  vary  the  order  deprives  other  courts 
of  the  power  to  determine  the  custody  in  another  proceed- 
ing ;  for  the  divorce  court  becomes  in  eif ect  the  ward  of  the 
child,  and  all  applications  must  be  made  to  this  court.'  Other 
courts  in  the  same  state  have  no  jurisdiction  to  vary  the 
order,  even  if  the  circumstances  would  justify  it.^  There 
is  a  dictum  that  the  court  granting  divorce  is  the  only  court 
which  can  vary  the  order,  where  the  parties  and  the  child 
are  in  another  state.''  But  it  seems  that  the  courts  of  other 
states  having  jurisdiction  over  the  parties  will  proceed  to 
fix  the  custody  of  the  child  as  its  welfare  requires,  regard- 
less of  former  adjudications.  Where  the  divorce  court  has 
made  no  decree  concerning  the  children,  other  courts  may 
fix  the  custody  upon  evidence  of  the  fitness  of  the  parents.* 
But  the  safest  course  is  to  apply  to  the  court  granting  the 
<livorce.' 


1  Hoffman  v.  Hoffman,  15  O.  St. 
437;  Williams  v.  WiUiams,  13  Ind. 
533;  McNees  v.  McNees  (Ky.),  30  S. 
W.  307. 

2  Jordan  v.  Jordan,  4  Tex.  Civ.  559, 
23  S.  W.  531;  Baily  v.  Schrader,  34 
Ind.  360;  Shaw  v.  McHenry,  53  la. 
183;  Leming  v.  Sale,  138  Ind.  317, 
27  N.  E.  619;  Sullivan  v.  Learned, 
49  Ind.  353;  Bennett  v.  Southard, 
35  CaL  '688;  Jennings  v.  Jennings, 
56  la.  288. 

3  Stetson  V.  Stetson,  80  Me.  483. 

■•  Cocke  V.  Hannum,  39  Miss.  433. 

sCook  V.  Cook,  1  Barb.  Ch.  639; 
Bush  V.  Bush,  37  Ind.  164;  Barney 
-D.  Barney,  14  la.  189;  Miner  v.  Mi- 
ner, 11  111.  43;  Logan  v.  Logan,  90 
Ind.  107;  Landis  v.  Landis,  10 
Vroom,  374;  Deeds  v.  Deeds,  1 
G.  Greene,  394 ;  Jungk  v.  Jungk,  5  la. 
.541;  Andrews  v.  Andrews,  15  la. 
433;  Laurie  v.  Laurie,  9  Paige 
(X.  Y.),  334;   Collins  v.   Collins   3 


Paige,  9;  Rogers  v.  Rogers  (Ohio), 
36  N.  E.  310:  Neil  v.  Neil,  38  O.  St. 
558;  Phillips  v.  Phillips,  34  W.  Va., 
591;  Paff  v.  Paff,  Hopkins,  584. 
The  power  to  vary  this  order  was 
denied  in  the  absence  of  any  stat- 
utory authority  in  England.  Ro- 
botham  v.  Robotham,  1  Swab.  &  T. 
190;  Seymour  v.  Seymour,  1  Swab. 
&  T.  332;  Curtis  v.  Curtis,  1  Swab. 
&  T.  193;  Suggate  v.  Suggate,  1' 
Swab.  &  T.  493.  But  this  authority 
was  subsequently  conferred  and 
the  courts  have  interpreted  the  re- 
vised statute  in  several  instances. 
D'Altonu  D' Alton,  4  P.  D.  87;  Mil- 
ford  V.  Milford,  1  P.  &  M.  715; 
Hyde  v.  Hyde,  13  P.  D.  166.  See, 
also,  cases  where  custody  was 
awarded.  Ryder  u  Ryder,  3  Swab. 
&  T.  225;  Cooke  v.  Cooke,  3  Swab. 
&  T.  248;  Seddon  v.  Seddon,  3 
Swab.  &  T.  640;  Bacon  v.  Bacon,  1 
P.  &  M.  167. 


956  CUSTODY  Airo  scppoet  of  children.  [§  985> 

It  is  lield  in  California  that  the  power  of  the  court  to 
modify  an  order  for  the  custody  of  a  child  is  iost  when  th& 
parent  having  custody  has  permitted  another  to  adopt  the 
chUd  by  regular  proceedings  in  another  court.  It  is  held 
that  the  proceedings  for  adoption  are  in  rem,  and  binding- 
on  both  divorced  parties,  so  that  the  court  rendering  divorce 
loses  jurisdiction  over  the  child,  and  can  make  no  further 
order  concerning  it.^ 

The  facts  which  will  justify  a  change  of  custody  must  be 
essentially  diilerent  from  those  presented  to  the  court  which 
rendered  the  decree.^  Facts  known  to  the  applicant  before 
the  decree  of  divorce  was  rendered  cannot  be  shown  to  ob- 
tain the  custody  of  the  children.'  But  facts  which  could 
not  have  been  discovered  with  reasonable  diligence  before 
the  decree  may  be  shown  in  a  supplemental  proceeding  to 
change  the  order.*  Ordinarily,  the  fact  that  the  parent 
having  custody  of  the  child  has  married  again  will  not  be  a 
sufficient  circumstance  to  justify  a  change  of  custody,'''  but 
wOl  be  sufficient  if  the  welfare  of  the  child  requires.*  Cruelty 
of  the  parent  and  a  disposition  to  require  too  much  labor  of 
the  children  to  the  neglect  of  their  education,'  or  attempts 
to  estrange  the  child  from  the  other  parent,  have  been  held 
insufficient.^  Where,  at  the  time  the  divorce  was  rendered,, 
the  child  was  of  tender  years  and  needed  the  attention  of  its 
mother,  it  may  be  shown  that  the  child  is  no  longer  in  need 
of  a  mother's  care,  and  that  other  considerations  will  render 
the  custody  of  the  father  for  the  best  interests  of  the  child.* 
The  failure  to  educate  the  children  may  justify  a  change.^* 

1  Younger  v.  Younger  (Cal.),  39        s  Wand  v.  Wand,  14  Cal.  513. 
P.  778.  6  Welch  v.  Welch,  33  Wis.  534. 

2  White  V.  White,  75  la.  218 ;  Reid        '  Boggs  v.  Boggs,  49  la.  190. 

V.  Raid,  75  la.  681;  S.  r.  Bechdel,  37  s  Sherwood  v.  Sherwood,  56  la. 

Minn.  360;  Teter  v.  Teter,  88  Ind.  608;  D'Alton  v.  D'Alton,  4  P.  D.  87. 

494;  Pfau  v.  Pfau,  8  Ohio  Cir.  Ct.  9  Valentine  v.  Valentine.  4  Halst. 

R.  87;  Irwin  v.  Irwin  (Ky.),  30  S.  Ch.  219;  Olivers.  Oliver,  151  Mass. 

W.  417.  849. 

3  Dubois  V.  Johnson,  96  Ind.  6.  w  Snover  v.  Snover,  13  N,  J.  Eq. 
■tSemrow  v.   Semrow,  23  Minn.  261. 

214 


§  985.]  CUSTODY    AND    SUPPCKT    OF    CHILDREN.  957 

It  will  be  sufficient  to  show  that  the  parent  has  become  dis- 
solute, or  has  committed  adultery,  or ,  is  otherwise  immoral 
and  likely  to  have  a  bad  influence  upon  the  child.'  In  gen- 
■eral,  it  may  be  said  that  any  new  circumstances  which  were 
not  before  the  court  when  the  order  was  made  will  be  suffi- 
cient if  they  show  clearly  that  the  welfare  of  the  child  re- 
quires a  change  of  custody.^ 

The  amount  awarded  for  the  maintenance  of  the  children 
is  likewise  subject  to  the  modification  of  the  court.  In  this 
respect  the  order  resembles  a  decree  for  alimony,  and  is  sub- 
ject to  the  further  order  of  the  court  as  the  changed  cir- 
cumstances of  the  parties  may  require.'  The  husband  will 
be  relieved  of  the  order  for  support  where  the  necessity  no 
longer  exists,  as  where  the  children  are  old  enough  to  sup- 
port themselves  by  their  own  earnings,  or  where  the  wife 
has  acquired  ample  means  since  the  order  was  entered.'' 

iWittv.  Witt,  1891  Probate,  163.  port   be    diverted.    Lancaster    v. 

2Flory  V.  Ostrom,  92  Mich.  622,  Lancaster,  39  lU.  Ap.  510. 

53  N.  W.  1038.    The  order  may  be  'See  Power  to  change  the  amount 

upon  the  condition  that  the  hus-  of  permanent  alimony,  §  934 

hand  shall  be  entitled  to  the  child  *  Greenleaf  v.  Greenleaf  (S.  D.)» 

if  the  amount  ordered  for  its  sup-  61  N.  W.  43. 


ALIMONY  WITHOUT  DIVORCE. 


1000.  In  general. 
IQOl.  The  question  as  affected  by 
statute. 


§  1003.  When      maintenance 
granted. 
lOOB.  The  procedure. 


§  1000.  In  general. — It  is  a  controTerted  question  wbeth'er 
in  the  absence  of  statute  a  court  of  equity  has  jurisdiction 
to  decree  separate  maintenance  to  the  wife  where  the  hus- 
band, having  sufficient  means,  has  failed  or  refused  to  sup- 
port her.  This  question  has  been  disposed  of  in  some  state* 
by  treating  the  wife's  suit  for  separate  maintenance  as  a 
suit  for  alimony,  and  holding  that  alimony  is  alyays  an  in- 
cident to  a  proceeding  for  divorce,  and  therefore  such  relief 
cannot  be  granted  in  a  direct  proceeding.^ 


lYule  V.  Yule,  10  N.  J.  Eq.  138; 
Cory  V.  Cory,  11  N.  J.  Eq.  400;  An- 
shutz  V.  Anshutz,  16  N.  J.  Eq.  163; 
Doyle  V.  Doyle,  26  Mo.  545;  Mcln- 
tyre  v.  Mclntyre,  80  Mo.  470;  De- 
Graw  V.  DeGraw,  7  Mo.  Ap.  131; 
Parsons  v.  Parsons,  9  N.  H.  309; 
Bowman  v.  Worthington,  34  Ark. 
533;  Ross  v.  Boss,  69  111.  569;  Trot- 
ter V.  Trotter,  77  111.  510;  Carroll  v. 
Carroll,  43  La.  An.  1071;  Holbrook 
V.  Holbrook,  33  La.  An.  13;  Moore 
V.  Moore,  18  La.  An.  818;  Heyob  v. 
Her  Husband,  18  La.  An.  41 ;  Moon 
V.  Baum,  58  Ind.  194;  Fischli  v. 
Fischli,  1  Blackf.  360;  Perkins  v. 
Perkins,  16  Mich.  163;  Peltier  v. 
Peltier,  Harring.  (Mich.)  19;  Trevino 
V.  Trevino,  63  Tex.  650. 

In  an  early  case  of  first  impres- 
sion the  wife   applied  for  main- 


tenance out  of  funds  due  her  from 
her  father's  estate,  and  alleged  that 
the  husband  had  deserted  her  be- 
fore her  father's  death  and  re- 
turned to  her  for  the  sole  purpose 
of  receiving  her  share  of  the  estate 
and  had  since  deserted  her.  Coun- 
sel for  the  wife  contended  that  a 
court  of  equity  had  jurisdiction  on 
the  ground  of  fraud,  trust  and  the 
prevention  of  injustice.  After  an 
exhaustive  review  of  the  English 
authorities  the  court  found  no 
exact  precedent,  and  held  that  the 
jurisdiction  exercised  by  the  coui't 
of  chancery  in  England  in  such 
cases  is  not  founded  on  the  basis 
of  trust  or  fraud,  but  is  a  branch 
of  equity  connected  with  the  power 
to  enforce  a  settlement  upon  her 
out  of  her  estate,  and  was  origi- 


§  1000.]  ALIMONY   WITHOUT   DIVOECB.  959' 

These  authorities  do  not  discuss  the  question  of  the  juris- 
diction of  a  court  of  equity  to  grant  relief  where  there  is  no 
adequate  rcmed}'  at  law,  but  seem  to  have  overlooked  this 
proposition.  The  cases  cited  are  not,  therefore,  authorities 
denying  such  jurisdiction  to  courts  of  equity.  The  common- 
law  alimony  was  undoubtedly  an  incident  to  a  suit  for  divorce 
in  its  true  and  technical  meaning.  "Where  the  statute  bas 
provided  certain  instances  in  which  the  wife  is  entitled  to 
alimony  without  a  divorce,  the  courts  have  declined  to  grant 
alimony  in  all  cases  which  do  not  fall  within  the  statute. 
The  rule  exjpressio  imius  est  exolusio  alterius  was  not  applied. 
The  courts  do  not  base  their  decision  on  a  construction  of 
the  statute,  but  have  denied  the  wife's  application  on  the 
ground  that  alimony  is  always  an  incident  of  divorce  unless 
the  statute  provides  otherwise.  Thus,  in  New  Jersey,  the 
courts  are  authorized  to  grant  alimony  where  the  husband, 
Avithout  any  justifiable  cause,  deserts  the  wife  or  refuses  or 
neglects  to  maintain  and  provide  for  her,  and  it  is  held  that 
the  power  to  grant  this  kind  of  relief  is  confined  to  the  cases 
mentioned  in  the  statute.'  These  cases  are  followed  in  Mis- 
souri under  a  similar  statute.^  The  statute  of  Illinois  author- 
izes the  court  to  grant  alimony  to  the  husband  where  the 
wife  is  living  apart  from  her  husband  without  her  fault. 

nally  exercised  only  where  thehus-  courts  have  said  by  way  of  dictum 

band  sought  the  aid  of  a  court  of  that  alimony  is  always  an  incident 

equity  to  gain  possession  of  his  to  the  suit  for  divorce.    Bowman 

wife's  property.     It  was  also  held  v.  Worthington,  24  Ark.  523;  Moon 

that  the  jurisdiction  conferred  by  v.  Baum,  58  Ind.  194;   Perkins  v. 

statute  in  cases  of  fraud  and  trust  Perkins,  16-  Mich.  162;    Peltier  v. 

did  not  empower  the  court  to  de-  Peltier,  Harring.  (Mich.)  19. 
cree  the  wife,  on  her  application,  a        '  Yule  v.  Yule,  10  N.  J.  Eq.  138, 

sum  for  her  maintenance  out  of  followed  in  Cory  v.  Cory,  11  N.  J. 

her  equitable   property,  although  Eq.  400,  and  Anshutz  v.  Anshutz, 

such  property  was  in  the  hands  of  16  N.  J.  Eq.  162. 
an  administrator  as  a  distributive        ^  Doyle  v.  Doyle,  26  Mo.  545,  f ol- 

share  of  the  estate.     Parsons  v.  lowed  in    Mclntyre   v.  Mclntyre, 

Parsons,  9  N.  H.  309  (1838).  80  Mo.  470,  De  Graw  v.  De  Graw, 

In  suits  involving  the  effect  of  7  Mo.  Ap.  121. 
decrees  of  alimony  and  divorce  the 


960  ALIMONY   -WITHOtTT   DIVOEOE.  [§  1000. 

The  object  of  the  statute  is  said  to  be  to  remedy  the  defect 
of  the  common  law  which  did  not  enforce  the  duty  of  the 
husband  to  support  the  wife  until  she  had  purchased  neces- 
saries on  his  credit,  and  was  intended  as  a  remedy  in  all 
cases  where  she  would  be  justified  in  obtaining  such  support 
on  the  credit  of  the  husband  at  the  common  law.  It  is  held 
that  relief  will  not  be  granted  in  cases  not  within  the  stat- 
ute because  a  court  of  equity  has  no  jurisdiction  in  such 
cases.^  The  statutes  of  Texas  and  Louisiana  do  not  permit 
a  suit  by  the  wife  for  maintenance.^ 

But  the  relief  asked  for  is  maintenance  without  a  divorce. 
The  real  question  is,  Can  such  .relief  be  granted  the  wife 
without  divorce,  when  the  statute  has  provided  that  she  may 
have  that  relief  with  divorce  ?  ^  The  weight  of  the  most  care- 
fully considered  authorities  is  that  such  relief  can  be  granted 
by  a  court  of  equity  on  the  ground  that  there  is  no  adequate 
remedy  at  law.  The  reasons  upon  which  this  doctrine  is 
based  will  be  stated  at  some  length,  as  the  question  has  not 
been  fully  discussed  in  any  work  on  this  subject. 

In  the  various  editions  of  his  work,  Mr.  Bishop  has  denied 
the  jurisdiction  of  courts  of  equity  to  grant  this  relief.  The 
reason  assigned  by  him  was  that  "  in  England,  whence  we 
derive  our  laws,  neither  the  equity  tribunals  nor  any  other 
had  the  jurisdiction  when  this  country  was  settled.  If  we 
assume  that  equity  had  it  during  the  commonwealth,  it  did 
not  afterward.  Our  ancestors  brought  with  them  the  laws 
of  the  mother  country  as  they  were  at  the  date  of  the  emi- 
gration, not  at  a  previous  date.  They  did  not  transfer  hithei* 
what  in  England  had  then  no  existence.  If  the  ecclesiastical 
courts  had  exercised  this  jurisdiction  there  would  be  a  show 
of  reason  for  saying  that,  as  we  have  no  such  courts,  equity 
may  take  it.     But  even  this  argument  is  done  away  with  by 

1  Koss  V.  Boss,  69  111.  569;  Trotter  1071;  Holbrook  v.  Holbrook,  33  La. 
V.  Trotter,  77  III.  510.  An.  13. 

2  See  Trevino  v.  Trevino,  63  Tex.  '  See  on  this  point  the  conclusion 
650;  Heyob  v.  Her  Husband,  18  La.  reached  in  Edgerton  v.  Edgerton, 
An.  41;  Moore  v.  Moore,  18  La.  An.  12  Mont.  133,  39  P.  967. 

613;  CarroU  v.  Carroll,  43  La.  An. 


§  1000.]  ALIMONY    WITHOUT   DIVOEOE.  961 

the  uniform  holding  of  our  tribunals  that,  in  the  absence  of 
■ecclesiastical  courts,  equity  cannot  perform  their  divorce 
functions.  Moreover  there  is  no  one  head  of  equity  jpower  to 
which  hy  analogy  this  can  be  said  to  "belong.  Again,  let  the 
reader  notice  the  peculiarity  of  this  proceeding.  A  divorce 
from  bed  and  board  given  to  the  wife  concludes  with  the 
same  decree  for  alimony  which  this  proceeding  does.  But  it 
also  contains  a  finding  and  a  judgment,  not  that  the  mar- 
riage is  dissolved,  but  that  she  who  is  to  be  alienated  is 
entitled,  by  reason  of  the  fault  of  the  other  party,  to  Live  in 
separation.  In  the  proceeding  under  consideration,  a  court 
acknowledging  itself  without  power  to  adjudicate  the  right  to 
live  in  separation  —  for  that  would  be  simply  and  exactl}''  to 
pronounce  a  divorce  from  bed  and  board  —  undertakes  to 
make  a  permanent  order  for  alimony.  And  yet,  as  a  foun- 
dation for  the  order,  it  passes  upon  the  very  question  of  right 
which  it  admits  not  to  be  withia  its  jurisdiction,  and  which, 
therefore,  it  does  not  reduce  to  record." '  This  reasoning 
has  not  found  favor  with  our  courts  where  the  question  has 
since  arisen.  In  many  well-considered  cases  it  is  held  that 
courts  of  equity  do  have  the  power  to  adjudicate  the  right  to 
live  in  separation,  and  that  such  courts  have  jurisdiction  to 
grant  relief  in  such  cases  on  the  ground  that  there  is  no  ade- 
quate remedy  at  law,  and  to  prevent  multiplicity  of  suits.^ 

The  deserted  wife  may  obtain  necessary  support  by  pur- 
chasing supplies  on  her  husband's  credit,  and  these  creditors 
may  each  recover  from  the  husband.  But  this  is  not  an 
adequate  remedy,  and  involves  the  husband  in  numerous 

11  Bishop  on  Mar.,  Sep.  &  Div.,  Bland  (Md.),   544;    Anonymous,   1 

§  1400.     See  same,  Mar.   &  Div.,  Hayw.  (N.  C.)  347;  Earle  v.  Earle, 

856  (1681).  27  Neb.  377, 43  N.  W.  118 ;  Bueter  v. 

2  Garland  v.   Garland,   50    Miss.  Bueter,  1  S.  Dak.  94,  45  N.  W.  208; 

694;   Galland  v.   Galland,   38  CaL  Edgerton    v.   Edgerton,   13   Mont. 

365;  Butler  v.  Butler,  4  Litt.  (Ky.)  122,  29  P.  967. 

203;  Purcell  v.  Purcell,  4  H.  &  M.  In  addition  to  these  leading  cases 

(Va.)  507;  Lockridge  v.  Lockridge,  see,  also,  as  following  the  above: 

3  Dana,  28;  Graves  v.  Graves,  36  Alabama:  Glover  v.  Glover,  16 

la,  310;    Helms  v.   Franciscus,  2  Ala.  440;  Hinds  v.  Hinds,  80  Ala, 
61 


962 


AUMONT   •WITHOUT   DIVOKCE. 


[§  looa.. 


suits.  The  wife  is  generally  unable  to  purchase  goods  under 
the  circumstances,  for  the  creditor  is  reluctant  to  give  credit 
where  he  will  become  involved  in  a  suit  in  which  he  must 
prove  the  reasonable  value  of  his  goods,  and  also  that  ther 
wife  had  good  cause  in  separating  from  her  husband.  This 
relief  is  also  inadequate,  because  the  husband  may  escape 
his  liability  by  fraudulently  disposing  of  his  property,  or  re- 
moving it  beyond  the  jurisdiction  of  the  court.  The  inade- 
quacy of  this  common-law  remedy  is  apparent  from  the 
number  of  states  which  have  provided  for  a  direct  proceed- 
ing against  the  husband  for  support.^    The  wife  cannot  in 


235;  Wray  v.  Wray,  33  Ala.  187; 
Murray  v.  Murray,  84  Ala.  363. 

Arkansas :  Wood  v.  Wood,  54  Ark. 
173,  overruling  Bowman  v.  Worth- 
ington,  24  Ark  533. 

Colorado:  Daniels  v.  Daniels,  9 
Colo.  133. 

District  of  Colnmbia:  Cheever 
V.  Wilson,  6  Dist.  Col.  149;  Shaw  v. 
Shaw,  23  Wash.  L.  Eep.  77;  Tolman 
V.  Tolman,  1  App.  D.  C.  299. 

Iowa:  Finn  v.  Fiiin,  63  la.  483; 
Farber  v.  Farber,  64  la.  363;  Plat- 
ner  v.  Platner,  66  la.  378;  Whit- 
comb  V.  Whitoomb,  46  la.  437; 
Simpson  v.  Simpson  (la.),  59  N.  W. 
23. 

Kentucky :  Boggess  v.  Boggess,  4 
Dana,  307;  Woolridge  v.  Lucas,  7 
B.  Mon.  49;  Hulett  v.  Hulett,  80 
Ky.  364;  Arnold  v.  Arnold,  14  S.  W. 
376. 

Maryland :  Fornshill  v.  Murray, 
1  Bland,  479;  Macnamara's  Case,  3 
Bland,  566;  Scott's  Case,  3  Bland, 
568;  Govane's  Case,  3  Bland,  570; 
Wallingsford  v.  Wallingsford,  6 
Har.  &  J.  485;  Wiles  v.  Wiles,  8  Md. 
1;  Jamison  v.  Jamison,  4  Md.  Ch. 
289;  Wright  v.  Wright,  3  Md.429; 
Hewitt  V.  Hewitt,   1   Bland,   101; 


Crane  v.  Meginnis,  1  Gill  &  J.  463; 
Dunnock  v.  Dunnock,  3  Md.  Ch. 

140.    : 

Mississippi :  Vemer  v.  Verner,  63^ 
Miss.  260;  McFarlandu  McFarlaK'df 
64  Miss.  449. 

North  Carolina:  Knight  v^ 
Knight,  2  Hayw.  101 ;  Spiller  u  Spil- 
ler,  1  Hayw.  482;  Hodges  v.  Hodges, 
82  N.  C.  133. 

Khode  Island:  Batty  v.  Batty,  1 
E.  I.  313. 

South  Carolina:  Jelineau  v.  Jel- 
ineau,  3  Des.  45;  Briggs  v.  Briggs^ 
34  S.  C.  377;  Prather  v.  Prather,  4 
Des.  33;  Mattison  v.  Mattison,  1 
Strob.  Eq.  387;  Three  wits  v.  Three- 
wits,  4  Des.  560 ;  Prince  v.  Prince, 
1  Rich.  Eq.  382;  Rhame  v.  Ehame,  1 
McCord  Eq.  197. 

Tirginia:  Purcell  v.  Purcell,  4 
H.  &  M.  507;  Almond  v.  Aknond,  4 
Rand.  663. 

See,  also,  similar  cases  in  foreign 
countries:  Severn  v.  Severn,  3 
Grant  (U.  C.)  Ch.  431;  Soules  v. 
Soules,  3  Grant  (U.  C.)  Ch.  399; 
Wood  V.  Wood,  1  Manitoba,  317; 
Weir  v.  Weir,  10  Grant,  565;  Howey 
V.  Howey,  37  Grant,  57. 

1  See  Ross  v.  Ross,  69  111.  569. 


§  1000.]  ALIMONY    WITHOUT   DIVOECE.  963 

this  country  procure  a  restitution  of  conjugal  riglits.  And 
it  has  been  decided*  that  the  writ  of  supplicavit  is  not  a 
proper  remedy  in  such  cases.'  In  an  early  case  it  was  said : 
"  It  is  clear  that  strong  moral  obligations  must  lie  on  the 
husband,  who  has  abandoned  his  wife,  to  support  her.  The 
marriage  contract,  and  every  principle,  binds  him  to  this. 
If  he  fails  to  do  it,  it  is  a  wrong  acknowledged  by  common 
law,  though  the  law  knows  no  remedy,  because  the  wife  can- 
not sue  the  husband;  but  in  equity  the  wife  can  sue  the  hus- 
band; and  it  is  the  province  of  the  court  of  equity  to  afford 
the  remedy  where  conscience  and  law  acknowledge  the 
right  but  know  no  remedy."  ^ 

"VYe  have  no  English  precedent  in  which  this  relief  was 
granted  by  the  chancery  court ;  but  it  seems  that  this  court 
took  cognizance  of  other  cases  concerning  marital  rights, 
such  as  controlling  the  wife's  separate  property,  and  de- 
voting it  to  her  separate  maintenance  where  the  husband 
had  so  conducted  himself  as  to  justify  her  living  in  separa- 
tion, and  restraining  the  husband  by  the  writ  ne  exeat  from 
quitting  the  kingdom  to  evade  the  payment  of  an  allowance. 
In  his  work  on  Equity  Jurisprudence,  Judge  Story  says : 
"  In  America  a  broader  jurisdiction  in  cases  of  ahmony  has 
been  asserted  in  some  of  our  courts  of  equity ;  and  it  has 
been  held  that  if  a  husband  abandons  his  w4fe,  and  separates 
himself  from  her  without  any  reasonable  support,  a  court  of 
equity  may  in  all  cases  decree  her  a  suitable  maintenance 
and  support  out  of  his  estate,  upon  the  very  ground  that 
there  is  no  adequate  or  suificient  remedy  at  law  in  such  a 
case.  And  there  is  so  much  good  sense  and  reason  in  this 
doctrine  that  it  might  be  wished  it  were  generally  adopted." 
It  must  not  be  overlooked  that  the  statutory  delegation  of 
power  to  courts  of  equity  varies  in  our  states,  and  that  in 
some  instances  the  court  may  reach  different  conclusions 
on  this  question. 

1  Adams  v.  Adams,  100  Mass.  365.    land  v.  Galland,  38  Cal.  265;  Earle 

2  Butler  V.  Butler,  4  Litt.  (Ky.)  v.  Earle,  27  Neb.  277;  Bueter  v. 
203,  cited  with  approval   in   Gal-    Bueter,  1  S.  Dak.  94,  45  N.  W.  208. 


964  ALIMOHT   "WITHOUT   DITOECE.  [§  1000. 

Mr.  Bishop  objects  to  courts  of  equity  granting  this  relief, 
because  such  courts  have  no  power  to  determine  that  the  wife 
is  living  separate  from  her  husband  for  justifiable  cause,  and 
that  such  finding  is  in  effect  a  decree  for  separation.  But 
it  must  be  remembered  that  the  common-law  courts  had  to 
determine  the  same  facts  when  the  creditor,  sued  the  hus- 
band for  the  wife's  support.^  A  similar  instance  is  where 
the  validity  of  a  marriage  is  in  question.  Such  controversy 
does  not  deprive  either  the  courts  of  equity  or  common  law 
of  jurisdiction  to  determine  the  validity  of  a  marriage  as  an 
incident  to  the  enforcement  of  some  right,  although  no  de- 
cree of  annulment  could  be  entered.  It  would  seem  that  a 
court  would  have  the  power  to  decree  separate  maintenance 
although  in  doing  so  it  will  determine  that  the  separation  is 
lawful. 

The  jurisdiction  of  our  modern  courts  of  equity  would 
seem  to  be  beyond  question  in  states  where  the  distinction 
between  law  and  equity  is  declared  by  statute  to  have  been 
abolished,  and  also  where  jurisdiction  of  divorce  has  been 
conferred  upon  courts  of  equity.  But  in  almost  every  state 
it  would  seem  that  courts  of  equity  would  have  jurisdiction 
on  the  ground  that  there  was  no  adequate  remedy  at  law 
and  to  prevent  multiplicity  of  suits.  Jurisdiction  was  based 
on  this  ground  in  Iowa  in  a  well  considered  case  in  which 
the  main  question  involved  was  the  jurisdiction  of  the  court. 
On  this  point  it  was  said :  "  That  a  husband  is  bound,  both 
in  law  and  in  equity,  for  the  support  and  maintenance  of 
his  wife  is  a  proposition  hitherto  and  now  undisputed.  If 
by  his  conduct  he  makes  it  unsafe,  or  by  entertaining  others 
there  he  makes  it  immoral  for  her  to  remain  at  his  home, 
she  may  leave  it  and  him  and  carry  with  her  his  credit  for 
her  maintenance  elsewhere.  So  that  in  such  case  a  victualer, 
a  merchant,  a  dressmaker,  a  milliner,  or  any  dealer  in  the 
necessaries  of  life,  may  severally  supply  the  wife  with  arti- 
cles needful  and  proper  in  her  situation,  and  may  respect- 

1  See  reasoning  in  Edgerton  v.  Edgerton,  13  Mont.  123,  pages  143, 143.  ~ 


§  1001.]  ALIMONY   WITHOUT    DIVORCE.  965 

ively  maintain  their  action  against  the  husband  for  their 
value.  This  remedy  the  law  affords.  But  this  involves  mul- 
tiplicity of  suits ;  and  besides  the  remedy  is  by  no  means 
adequate.  The  wife  may  find  it  difficult,  if  not  impossible,  to 
obtain  a  continuous  support  in  this  way,  since  such  dealers 
and  professional  men  would  be  unwilling  to  supply  their 
articles  or  services  if  thus  compelled  to  resort  to  litigation  in 
order  to  secure  their  pay.  Here  then  is  a  plain  legal  duty 
of  the  husband,  for  the  violation  of  which  no  adequate  rem- 
edy, even  with  a  multiplicity,  can  be  had  except  in  a  court 
of  equity.  Upon  the  ground  of  avoiding  a  multiplicity  of 
suits,  or  on  the  ground  that  no  adequate  remedy  can  be  had 
at  law,  a  court  of  equity  may  properly  base  its  jurisdiction 
in  such  cases."  ^  The  doctrine  announced  in  this  case  seems 
to  be  correct,  and  has  been  followed  in  Iowa  and  approved 
elsewhere.^ 

§  10()1.  The  question  as  aifected  by  statutes. —  In  many 
of  the  states  where  the  courts  have  denied  the  power  to 
grant  separate  maintenance  the  jurisdiction  has  been  con- 
ferred by  statute.  These  statutes  are  not  uniform,  but  pro- 
vide in  substance  that  the  court  may  decree  separate  main- 
tenance where  the  husband  has  been  guilty  of  desertion  and 
failure  to  support.  A  reference  to  the  cases  where  such 
statutes  have  been  interpreted  and  enforced  may  be  useful.' 

It  is  the  object  of  such  statutes  to  give  the  wife  a  sure 

1  Graves  v.  Graves,  36  la.  310.    In  selves  to  our  judgment.    This  rea- 

this  case  the  husband  deserted  the  soning  seems  to  us  logical  and  safe, 

wife,  procured  a  void  decree  of  di-  and  their  conclusions  in  harmony 

vorce  and  was  living  in  adultery  with  the  present  legal  status  of 

with    another    woman,    and    had  married  women.    A  denial  of  such 

neglected  to  support  his  wife.  jurisdiction  would  seem  to  expose 

2Earle  v.  Earle,  27  Neb.  277.    In  the  law  and  the  courts  to  the  just 

Bueter  v.  Bueter,  1  S.  Dak.  94,  45  criticism  of   having   squarely  as- 

K.  "W.  208,  the  above  cases  are  re-  serted  the  wife's  right  to  support 

viewed,  and  it  was  said:  "These  from  her  husband,  yet  denying  her 

cases,  while   possibly  not  in  line  a  remedy  when  such  support  is  re- 

with  the  prevailing  current  of  ju-  fused." 

dicial  decisions,  either  in  England  3  California:    Civil    Code,    136; 

or  this  country,  commend  them-  Hagle  v.  Hagle,  68  Cal.  588;  Hagle 


vm 


ALIMONY   WITHOUT   DIVOECE. 


[§  1001, 


and  speedy  remedy  whenever  the  husband  fails  to  perform 
his  legal  duty,  instead  of  leaving  her  right  to  be  wrought 
out  through  a  third  person,  as  at  common  law.  These  stat- 
utes are  remedial,  and  should  be  construed  to  give  the  wife 

V.  Hagle,  74    dal.   608;    Hardy  v. 
Hardy,  97  Cal.  125,  31  P.  906;  Peyre 


V.  Peyre,  79  CaL  336. 

Georgia:  Clark  v.  Clark,  78  Ga. 
79;  Gardners.  Gardner,  54 Ga.  560; 
McGee  v.  McGee,  10  Ga.  477;  Glass 
V.  Wyn,  76  Ga.  319;  Hawes  v. 
Hawes,  66  Ga.  142;  Lamar  v.  Jen- 
nings, 69  Ga.  393. 

Illinois:  Ross  v.  Ross,  69  111.  569; 
Wahle  V.  Wahle,  71  111.  510;  Farrell 
V.  Farrell,  28  111.  Ap.  37;  Fountain 
V.  Fountain,  83  111.  Ap.  539;  O'Brook 
V.  O'Brook,  32  111.  Ap.  149;  Houts  v. 
Houts,  17  lU.  Ap.  439;  Jenkins 
V.  Jenkins,  104  111.  134:  Cooper  v. 
Cooper,  4  111.  Ap.  285;  Tureman  v. 
Tureman,  4  111.  Ap.  385;  Johnson 
V.  Johnson,  125  111.  510;  Umlauf  v. 
IXmlauf,  9  111.  Ap.  517,  117  111.  580; 
Hunter  v.  Hunter,  7  111.  Ap.  253; 
lOemme  v.  lOemme,  37  111.  Ap.  54. 

Indiana:  Walter  u  "Walter,  117 
Ind.  247;  Harris  v.  Harris,  101  Ind. 
499;  Carr  v.  Carr,  6  Ind.  377,  33 
N.  E.  805;  Chapman  v.  Chapman, 
13  Ind.  396;  Hallett  v.  Hallett 
(Ind.),  34  N.  E.  740. 

Massacliusetts :  Smith  v.  Smith, 
154  Mass.  262;  Blackinton  v.  Blaok- 
inton,  141  Mass.  432;  Silverman  v. 
Silverman,  140  Mass.  560;  Doole  v. 
Doole,  144  Mass.  278;  Watt  v.  Watt, 
160  Mass.  464,  36  N.  E.  479. 

Michigan :  Russell  v.  Russell,  75 
Mich.  572;  Tobey  v.  Tobey,  100 
Mich.  54,  58  N.  W.  629;  Chaffee  v. 
Chaffee,  l5  Mich.  184. 

Missouri:  Dwyer  v.  Dwyer,  26 
Mo.  Ap.^653;  Spengler  v.  Spengler, 


38  Mo.  Ap.  266;  Lindenschmidt  v. 
Lindenschmidt,  29  Mo.  Ap.  295; 
Neviiion  v.  Newton,  83  Mo.  Ap.  162; 
McGrady  v.  McGrady,  48  Mo.  Ap. 


•  New  Jersey :  Anshutz  v.  Anshutz, 
16  N.  J.  Eq.  162;  Walling  v.  Wall- 
ing, 16  N.  J.  Eq.  389;  Davis  v.  Davis, 
19  N.  J.  Eq.  180;  Cory  v.  Cory,  11 
N.  J.  Eq.  400;  Begbie  v.  Begbie,  7 
N.  J.  Eq.  98;  Martin  v.  Martin,  8 
N.  J.  Eq.  563;  Starkey  v.  Starkey, 
21  N.  J.  Eq.  135;  Ballentine  v.  Bal- 
lentine,  5  N.  J.  Eq.  471;  Boyce  v. 
Boyce,  23  N.  J.  Eq.  337,  24  N.  J.  Eq. 
588;  McEwen  v.  MoEwen,  10  N.  J. 
Eq.  286;  Shinn  v.  Shinn,  51  N.  J. 
78,  24  A.  1022;  Elliott  v.  Elliott,  48 
N.  J.  231;  O'Brien  v.  O'Brien,  23 
A.  1073;  Fairchild  v.  Fairohild,  43 
N.  J.  Eq.  473, 11  A.  426. 

New  York :  Eamsden  v.  Ramsden, 
91  N.  Y.  281;  Douglas  v.  Douglas, 
5  Hun,  140;  Davis  i).  Davis,  1  Hun, 
444;  Euckman  v. .  Ruckman,  58 
How.  Pr.  278 ;  Atwater  v.  Atwater, 
36  How.  Pr.  431 ;  Pomeroy  v.  Wells, 
8  Paige,  406;  P.  v.  P.,  24  How.  Pr. 
197. 

North  Carolina:  Hodges  v. 
Hodges;  82  N.  C.  123;  Cram  v. 
Cram  (N.  C),  21  S.  E.  197. 

North  Dakota:  Bauer  v.  Bauer, 
2  N.  Dak.  108,  49  N.  W.  418. 

Ohio :  Woods  v.  Waddle,  44  O.  St. 
449;  Dailey  v.  Dailey,  Wright,  514; 
Questel  v.  Questel,  Wright,  491; 
Bascom  v.  Bascom,  Wright,  633. 

PennsylTania:  Appeal  of  Nye, 
136  Pa.  341,  17  A.  618. 


^lOOl.j  ALIMONY   ■WITHOUT   DIVOEOE.  96T 

a  right  of  action  wherever  she  is  justified  in  living  in  sepa- 
ration.i  The  statutes  contemplate  a  suit  in  equity  and  are 
constitutional,  although  they  contain  no  provision  for  a  trial 
by  jury .2 

The  question  has  been  considered  as  one  of  jurisdiction  of 
courts  of  equity,  and  it  remains  to  inquire  whether,  under 
th^  statutes,  suph  relief  is,  not  prohibited  by  implication  or 
by  express  provision;  and  whether  a  decree  of  separation 
will  not  be  an  adequate  remedy.  In  all  the  states  where 
courts  of  equity  have  exercised  this  jurisdiction  the  statutes 
have  provided  for  ahmony  or  a  suitable  maintenance  after 
a  decree  of  divorce.'  It  has. been  contended  that  where  the 
statute  provides  for  alimony  when  a  divorce  is  granted,  this 
impliedly  negatives  the  power  to  grant  such  relief  in  other 
cases.  But  in  every  case  where  such  interpretation  was  in- 
sisted upon,  the  courts  have  held  that  such  provisions  do 
not  prohibit  the  court  from  granting  the  same  relief  with- 
out divorce.*  The  maxim  exjpressio  unius  est  exolusio  alterius 
has  no  application  to  this  class  of  cases.'  In  a  well  consid- 
ered case  it  was  held  that  the  legislature,  in  enacting  such 
provision,  did  not  intend  to  relieve  the  deserting  husband 
from  liability  to  support  his  wife.  "  If  this  provision  im- 
l)lied  that  the  obligation  could  only  be  enforced  by  first  dis- 
solving the  bonds  of  matrimony,  the  law  would  be  open  to 
the  charge  that  it  was  so  framed  as  to  encourage  divorces; 
for  the  wife  who  kept  faith  with  the  marriage  vows  might 
be  driven  by  privation,  in  some  cases  at  least,  to  release  the 
husband  from  the  bonds  of  matrimony,  in  order  to  obtain 
relief  from  penury  and  want.  Such  a  construction  of  the 
legislative  intent  would  make  the  statute  provide,  in  effect, 

Tennessee:  Nicely  v.  Nicely,  40  ^Bigeiow  v.  Bigelow,  130  Mass. 

Tenn.  184;  Richardson  v.  Wilson,  330. 

8  Yerg.  67.  '  See  cases  aflSrming  the  right  to 

Vermont :  Morse  v.  Morse,  65  Vt.  decree  alimony  without  divorce. 

112;  Danville  v.  "Wheelock,  47  Vt.  ^Galland  v.  Galland,  38  Cal.  265; 

.57.  Earle  v.  Earle,  27  Neb.  277;  Bueter 

1  "Weigand  v.  "Weigand,  41  N.  J.  v.  Bueter,  1  S.  Dak.  94,  45  N.  W.  208. 

Eli.  303.  '  Galland  v.  Galland,  38  Cal.  365. 


968  ALIMONY   WITHOUT   DIYOECE.  [§  1002. 

that  in  case  a  wife  was  driven  away  or  deserted,  and  left 
without  means  of  support,  she  must  wait  (the  statutory 
period),  and  in  the  meantime  suffer  in  destitution,  or  suffer 
the  humiliation  of  becoming  a  public  charge,  or  seek  relief 
through  friends  or  strangers,  before  she  could  call  upon  a. 
court  to  grant  her  a  divorce,  and  then  compel  the  offending 
husband,  out  of  his  substance,  to  fulfill  his  obligation  to  sup- 
port her;  at  which  time  the  derelict  husband  may  have 
placed  himself  and  property  beyond  the  reach  of  the  court,", 
at  least  he  would,  in  such  case,  be  given  ample  opportunity 
to  do  so."  1 

Where  the  statute  provides  that  in  an  action  for  divorce 
the  court  may  grant  alimony  although  a  decree  is  refused, 
it  is  held  that  such  provision  authorizes  the  court  to  grant 
separate  maintenance  in  an  independent  proceeding.^  This 
construction  is  clearly  erroneous,  as  it  is  apparent  from  the 
context  that  only  proceedings  for  divorce  were  contem^ 
plated,  and  so  this  statute  is  construed  in  I^few  York.'  Such 
provision  does  not  prevent  a  court  of  equity  from  granting 
relief  in  an  independent  proceeding,  as  it  has  no  reference  to 
such  proceeding.* 

The  fact  that  the  same  relief  may  be  obtained  by  a  de- 
cree of  separation  and  alimony  has  been  held  a  sufficient 
reason  for  denying  separate  maintenance.'  But  the  decree- 
for  separation  changes  to  some  extent  the  status  of  the  par- 
ties and  exceeds  the  relief  desired.  The  wife  may  not  desire- 
a  separation,  but  maintenance  until  a  reconciliation  can  be 
effected.  This  question  is  not  discussed  in  the  authorities^, 
but  the  relief  is  granted  in  many  states  where  the  wife  could 
have  obtained  a  decree  of  separation. 

§  1002.  When  maintenance  is  granted. —  This  suit  pro- 
ceeds upon  the  liability  of  the  husband  for  the  support  of 

iHarwood,    J.,    in   Edgerton  v.    281;   Douglas  v.  Douglas,  5  Hun, 
Edgerton,  13  Mont.  133,  39  P.  969.        140,  and  cases  cited. 
-Nicely  v.  Nicely,  40  Tenn.  183.        ^Earle  v.  Earle,  37  Neb.  377. 
3  Eamsden  v.  Kamsden,  91  N.  Y.        ^  ggg  dictum  in  Adams  v.  Adams,. 

100  Mass.  365. 


§  1002.]  ALIMONT   "WITHOUT   DIVORCE.  96?^ 

his  wife,  and  the  gist  of  the  action  is  the  failure  to  support. 
The  husband  is  not  liable  in  this  action  if  he  offers  to  sup- 
port the  wife  at  home.  But  such  offer  may  be  refused  by 
the  wife  if  the  husband  is  guilty  of  some  misconduct  which 
is  a  cause  for  divorce,  in  which  case  she  may  refuse  such 
offer  and  recover  from  the  husband.  In  this  respect  the 
suit  follows  the  common-law  liability  of  the  husband  for 
tlie  goods  sold  to  the  wife.  He  is  liable  if  he  drives  her 
away  from  the  home  by  his  misconduct,  but  not  if  she  vol- 
untarily deserts  him.  Cruelty  which  would  entitle  her  to  a 
decree  of  separation  will  justify  her  in  living  apart  from 
her  husband  and  render  him  liable  for  her  support.'  And 
it  is  clear  that  the  wife  is  justified  in  separating  from  her 
husband  where  he  is  living  in  adultery.^  To  determine  when 
the  wife  is  not  justified  in  leaving  her  husband,  reference 
may  be  had  to  the  general  laAV  of  desertion,  which  need  not 
be  repeated  here.  The  proceeding  in  equity  is  to  deter- 
mine that  the  wife  is  destitute,  and  is  justified  in  living" 
apart  from  her  husband,  and  that  the  husband  has  mean& 
or  ability  to  support  her.  The  question  of  the  lawful  sepa- 
ration wiU  not  arise  unless  the  husband  pleads  that  he  is 
willing  to  support  the  wife  if  she  will  return.  Under  some 
statutes,  however,  the  court  must  find  that  the  wife  is  jus- 
tified in  living  apart  from  her  husband  or  that  he  is  guilty  of 
s^me  cause  for  divorce.'  As  a  general  rule  the  relief  is- 
granted  where  the  wife  is  destitute  and  is  deserted  or  is  jus- 
tified in  li"ving  in  separation.*    The  desertion  must  be  with- 

1  Lockridge  v.  Lockridge,  3  Dana,  Hardy  v.  Hardy,  97  Cal.  125,  31  P, 
28;  O'Brock  u  O'Brook,  32  111.  Ap.  906;  P.  v.  P.,  24  How.  Pr.  197^ 
149;  Hunter  v.  Hunter,  7  IlL  Ap.  Euckman  v.  Ruokman,  58  How, 
253;  McCahill  v.  McCahill,  71  Hun,  Pr.  278;  Douglas  v.  Douglas,  5  Hun^ 
224,  25  N.  Y.  Supp.  221.  140;  Peyre  v.  Peyre,  79   Cal.  386^ 

2  Graves  v.  Graves,  36  la.   310;  Chaffee  u  Chaffee,  15  Mich.  184. 
Briggs  V.   Brlggs,    24    8.    C.    377;  ^As  to  the  nature  of  the  deser- 
Prather  v.  Prather,  4  Des.  33;  "Wei-  tion  see  Johnson  v.  Johnson,   125 
gand  V.  "Weigand,  41  N.  J.  Eq.  202,  111.  510;  Seelye  v.  Seelye,  45  111.  Ap. 
and  cases  cited.  27;  Ross  v.  Ross,   69  111.  569;  An- 

3Hagle   V.  Hagle,   74    Cal.   608;    gelo  u  Angel o,  81  111.  251;  Speng- 


970  ALIMONY   WITHOUT   DITOKOE.  [§  1002. 

out  legal  justification,  but  the  wife  is  entitled  to  relief  be- 
fore the  desertion  has  continued  the  statutory  period. 

In  many  of  the  states  this  relief  must  be  granted  accord- 
ing to  the  provisions  of  the  statute;  but  where  the  relief  is 
granted  by  a  court  of  equity,  because  there  is  no  adequate 
remedy  at  law,  the  court  may  proceed  upon  the  general 
principles  which  goyern  the  law  of  divorce  in  determining 
whether  the  wife  is  in  fault,  and  whether  the  husband  is 
guUty  of  desertion  and  failure  to  support.  A  reference  to  a 
iew  leading  cases  may  be  useful  here  to  illustrate  the  prin- 
ciples which  govern  the  right  to  separate  maintenance  in 
the  absence  of  statute.  In  a  leading  case  the  parties  had 
resumed  cohabitation  after  they  had  entered  into  articles  of 
separation.  The  husband  again  withdrew  from  the  wife, 
leaving  her  a  house  and  lot  and  some  unproductive  property, 
xind  caused  a  notice  to  be  published  in  the  papers  warning 
aU  persons  to  refuse  credit  to  his  wife  on  his  account.  This 
notice  prevented  her  from  obtaining  goods  and  left  her 
destitute.  The  husband  refused  all  assistance  and  refused 
to  live  with  her,  and  insisted  that  she  obtain  a  divorce  from 
him  on  account  of  his  desertion,  but  the  wife  hoped  a  recon- 
ciliation and  reunion  would  take  place  and  refused  to  apply 
for  a  divorce  or  a  decree  of  separation.  It  was  held  that 
-the  wife  was  entitled  to  separate  maintenance,  although  it 
does  not  appear  that  the  wife  was  entitled  to  a.  decree  for 
.desertion.^ 

In  another  case  the  husband  drove  the  wife  from  the  house 
^nd  refused  to  cohabit  with  her  without  cause.  He  provided 
a  monthly  allowance  for  the  wife  and  child,  but  such  allowance 

ler  u   Spengler,   38  Mo.  Ap.   266;  694.   The  fact  that  the  parties  have 

Fountain  v.  Fountain,  33  111.  529;  entered  into  articles  of  separation 

Bueter  v.  Bueter,  1  S.  Dak.  94,  45  is  not  a  defense  unless  the  husband 

N.    W.    308;  Van    Duzer    v.  Van  can  prove  that  the  provision  made 

Duzer,  70  la.  614^  Meeker  v.  Meeker  for  the  wife  is  just  and  adequate. 

<N.  J.  Eq.),37A.  78;  Lindenschmidt  Daniels    v.  Daniels,   9    Colo.   133; 

■V.  Lindenschmidt,  39  Mo.  Ap.  395;  Cram  v.  Cram  (N.  C),  21  S.  E.  197; 

Droege  v.  Droege,  52  Mo.  Ap.  84.  People  v.  Meyer,  88  N.  Y.  Supp. 

1  Garland    r.   Garland,   50   Miss.  1133. 


§  1003.]  ALIMONY    WITHOUT   DIVOECE.  971 

was  small  and  not  in  proportion  to  his  income,  and  he  threat- 
ened to  reduce  the  amount.  The  wife  was  granted  relief 
although  she  was  not  entitled  to  a  divorce.'  In  some  recent 
cases  the  failure  to  support  the  wife  and  child  was  held  suf- 
ficient to  entitle  the  wife  to  maintenance,  it  not  appearing 
that  she  was  in  fault.^ 

In  any  case  relief  should  be  denied  where  the  wife  is  in 
fault,'  or  the  husband  has  requested  her  to  return.*  She 
cannot  recover  separate  maintenance  from  the  guardian  of 
her  insane  husband,  as  such  action  is,  in  effect,  against  the 
husband,  and  insanity  is  not  one  of  the  causes  fixed  ~by  the 
statute  for  alimony  without  divorce.' 

§  1003.  The  procedure. —  The  suit  to  compel  the  husband 
to  support  the  wife  must  conform  to  the  practice  of  the 
court  having  jurisdiction.*  In  the  absence  of  any  statutory 
provision  for  recovering  maintenance,  the  suit  is  always  an 
application  to  a  court  of  equity,  as  already  stated.''  The  peti- 
tion must  allege  the  residence  of  one  of  the  parties  in  the 
state,  the  marriage,  and  some  cause  for  divorce  justifying  a 
separation  or  a  desertion  and  failure  to  support,  and  the 
poverty  of  the  wife  and  ability  of  the  husband  to  support 
her.*  The  petition  should  state  what  amount  wiU.  be  neces- 
sary for  the  support  of  the  wife  and  children.  Where  this 
is  required  by  statute,  the  omission  of  such  allegation  renders 
the  petition  fatally  defective.^ 

The  jurisdiction  of  the  court,  so  far  as  it  is  regulated  by 
statute,  requires  the  same  domicile  as  in  a  suit  for  divorce. 
But  it  is  a  question  to  be  determined  from  the  whole  act 
whether  the  provision  requiring  the  plaintiff  to  be  a  resi- 

1  Galland  v.  Galland,  38  Cal.  265.        *  Meeker  v.  Meeker  (N.  J.),  37  A.  78. 

2  Graves  v.  Graves,  36  la.  310;  SHallett  v.  HaUett  (Ind.),  84N.E. 
Earle  v.  Earle,  27  Neb.  277;  Bueter    740. 

V.  Bueter,  1  S.  Dak.  94,  45  N.  "W.  6  Bauer  v.  Bauer,  3  N.  Dak.  108, 

308;  Bauer  v.  Bauer,  2  N.  Dak.  108,  49  N.  W.  418. 

49  N.  "W.  418;  Wood  v.  Wood,  54  7§  looo. 

Ark.  173.  *  See  fotai  of  petition,  §  759. 

"  Anderson  v.  Anderson,  45  111  "  Arnold  v.  Arnold  (Ind.),  39  N.  E. 

Ap.  168.  862. 


9T2 


ALIMONY   WITHOUT   DIVOECE. 


[§  1003. 


dent  of  the  state  was  intended  to  apply  to  this  proceed- 
ing as  well  as  divorce.'  "Where  the  proceeding  is  in  equity, 
and  in  the  absence  of  any  statute,  the  court  will  decline  to 
grant  the  relief  where  both  parties  are  non-residents,  al- 
though the  husband  has  property  in  the  state.^  But  where 
the  husband  is  a  resident  of  the  state  the  non-resident  wife 
may  maintain  the  action.'  The  residence  of  the  defendant 
must  be  such  that  an  ordinary  suit  could  be  maintained  ac- 
cording to  the  statute  regulating  the  venue  of  civil  cases 
and  not  the  statute  regulating  suits  for  divorce.*  The  suit 
must  be  commenced  in  the  usual  manner  by  filing  the  peti- 
tion and  issuing  summons.'  A  valid  decree  for  separate 
maintenance  may  be  rendered  upon  personal  service  out  of 
the  state  if  the  statute  permits  such  service.* 

The  liability  of  the  husband  being  continuous  is  not  barred 
by  the  statute  of  limitations.''  The  action  abates  upon  the 
death  of  the  husband  and  there  can  be  no  revivor  against 
his  legal  representatives.* 


iln  Florida  it  is  held  that  the 
statute  does  not  apply  to  such  pro- 
vision. Miller  v.  Miller,  33  Fla.  453. 

2  Keerl  v.  Keerl,  34  Md.  31. 

3  Tolman  v.  Tohnan,  1  App.  Dist. 
Col.  399;  Wood  v.  Wood,  54  Ark. 
173. 

4  In  Campbell  v.  Campbell,  67  Ga. 
433,  the  court  was  held  to  have 
jurisdiction  of  citizens  of  New- 
York  who  were  temporarily  resid- 
ing at  a  hotel  during  a  quarrel 
which  occurred  while  en  route  to 
Florida.  The  husband  was  arrested 
while  attempting  to  desert  the 
wife  and  return  to  New  York. 
The  statutes  relating  to  the  venue 
of  ordinary  suits  were  held  to  apply 
to  this  form  of  action. 

sYeomans  v.  Yeomans,  77  Ga. 
134,  3  S.  E.  354  In  North  Dakota 
the  suit  for  alimony  without  di- 


vorce is  a  suit  in  equity.  A  peti- 
tion was  filed  seeking  this  relief, 
and  the  district  court  issued  an 
order  to  show  cause,  which  was 
served  upon  the  husband,  and  on 
his  failure  to  do  so  on  the  return 
day  of  the  order,  the  husband  ap- 
peared specially  and  objected  to 
the  jurisdiction  of  the  court  for 
the  reason  that  no  summons  had 
been  served  upon  him  as  in  other 
civil  actions.  This  objection  was; 
sustained  by  the  supreme  court. 
Bauer  v.  Bauer,  3  N.  Dak,  108,'  49 
N.  W.  418. 

SBlackinton  v.  Blackinton,  141 
Mass.  433,  5  N.  E.  830. 

'  Carr  v.  Carr,  6  Ind.  Ap.  377. 

8  Swan  V.  Harrison,  43  Tenn.  534; 
Gaines  v.  Gaines,  9  B.  Mon.  393; 
Anonymous.  3  Des.  198;  Glenn  tv 
Glenn,  7  T.  B.  Men.  385. 


§  1003.]  ALIMONY   WITHOUT    DIVOEOE.  973 

In  many  respects  this  suit  resembles  the  suit  for  divorce. 
The  wife  is  entitled  to  temporary  alimony  to  prosecute  the 
action.'  There  must  be  a  showing  of  the  marriage,  the 
Avife's  needs,  and  the  ability  of  the  husband,  as  in  the  suit 
for  divorce.^  And  if  the  husband  appeal  from  the  order  for 
temporary  alimony,  the  court  will  grant  and  enforce  an 
order  for  further  aUmony  and  attorney's  fees  to  enable  her 
to  prosecute  the  appeal.'  And  the  wife  is  allowed  attorney's 
fees  as  in  other  actions.*  An  allowance  will  be  made  for 
her  expenses  on  appeal.' 

The  wife  is  granted  the  same  relief  as  though  a  divorce 
had  been  rendered,  and  in  some  states  the  court  will  grant 
her  a  portion  of  the  real  estate  in  fee.^  There  is  no  doubt 
that  the  vdfe  is  entitled  in  this  proceeding  to  an  injunction 
restraining  the  husband  from  conveying  his  property.''  A 
fraudulent  sale  to  avoid  the  decree  will  be  set  aside.^  The 
husband's  property  may  be  seized  and  sold  by  attachment 
proceedings.'    Payment  may  be  enforced  by  proceedings  for 

1  Johnson  v.  Johnson,  135  111.  510,  *Bueter  v.  Bueter,  1  S.  Dak.  94; 
affirming  20  111.  Ap.  495;  HoUeman  Patterson  v.  Patterson,  5  N.  J.  Eq. 
V.  HoUeman,  69  Ga.  676;  McFar-  389;  McEwan  v.  McEwan,  10  N.  J. 
land  V.  McFarland,  64  Miss.  449;  Eq.  28&;  Vreeland  v.  Jacobus,  19 
Verner    v.  Verner,   63    Miss.   260;  N.  J.  Eq.  333. 

Daniels   v.    Daniels,   9    Colo.   133;  s  Simpson  v.  Simpson  (la.),  59  N. 

Vreeland  v.  Vreeland,  18  N.  J.  Eq.  W.  23. 

43;  Newton  v.  Newton,  32  Mo.  Ap.  BNuetzell  v.  Nuetzell,  13  III.  Ap. 

163;  Patterson  v.  Patterson,  5  N.  J.  542;  Murray  v.  Murray,  84  Ala.  363. 

Eq.  389;  Harding  v.   Harding,  40  '  Price  v.   Price,  90  Ga,  344,  15 

111.  Ap.  303,  reversed  in  144  111.  588,  S.  E.  774;   Springfield  Ins.  Co.  v. 

33  N.  E.  306;  Razor  v.  Razor,  149  111.  Peck,  103  lU.  365. 

•631,   36  N.   E.   963;    Crittenden  v.  8  Bear  u  Bear,  145  111.  21,  33  N.  E. 

Crittenden,  37   IlL    Ap.   618.    See  878,  affirming  48  111.  Ap.  337. 

form  of  application  for  temporary  '  Downs  v.  Flanders,  150  Mass.  93, 

alimony,  Finn  v.  Finn,  63  la.  483.  22  N.  E.  585. 

2  Miller  v.  Miller,  33  Fla.  453;  In  some  states  the  general  pro- 
BurghoflEer  v.  Burghoffei:,  46  111.  visions  of  the  code  of  civil  prooed- 
Ap.  396.  ure  may  permit  the  wife  to  recover 

3  Ex  parte  Winter,  70  Cal.  291 ;  alimony  without  divorce,  where 
Storke  v.  Storke,  99  Cal.  631,  84  P.  the  husband  has  made  fraudulent 
339.  conveyances  of  his  isroperty  and 


974  ALIMONY   WITHOUT   DIVOECE.  [§  lOOS, 

contempt.^    The  decree  may  be  made  a  lien  upon  the  hus- 
band's real  property.'' 

The  order  for  support  is  terminated  upon  the  death  of 
either  party,  or  by  a  decree  of  absolute  divorce  in  favor 
of  either  party.'  The  husband  may  ordinarily  have  the  de- 
cree set  aside  if  the  wife  refuse  to  live  with  him.  Bat  she- 
may  refuse  to  do  so  if  he  is  guilty  of  any  misconduct  which 
is  a  cause  for  divorce.*  If  the  parties  resume  cohabitation, 
or  the  offense  is  condoned  by  the  wife,  it  is  held  that  the 
decree  wiU  not  be  enforced.^  But  it  would  seem  that  in  case 
of  condonation  the  decree  would  remain  on  the  records  and 
be  in  fuU  force  until  vacated  upon  the  application  of  one  or 
both  parties.  It  is  clear  that  such  decree  would  be  reinstated 
upon  a  showing  that  the  condonation  was  procured  by  fraud 
or  undue  means  and  the  husband  had  subsequently  refused 
to  support  his  wife. 

fled  from  the  state  to  avoid  service  '  Murray  v.  Murray,  84  Ala.  363,  4 

of  summons.    In  such  case  a  court  So.  239.    See  same  case  in  federal 

of  equity  may  grant  such  relief  in  court,  Murray  v.  Murray,  35  Fed. 

a  proceeding  in  rem.    In  Colorado  496. 

this  relief  is  permitted  by  section  2  Tobey  v.  Tobey,  100  Mich.  54,  5S 

41  of  the  code,  providing  that  serv-  N.  W.  639;  Thomas  v.  Thomas,  44 

ice   by  publication    can    only  be  111.  Ap.  604. 

made  in  "  cases  of  attachment,  fore-  '  Philadelphia  v.  Theile,  10  Phila. 

closure,  claim  and  delivery,  divorce  489. 

or  other  proceedings  where  specific  *  Com.  v.  Sperling,  8  Pa.  Co.  Ct. 

property  is  to  be  affected,  or  the  E.  491. 

proceeding  is  such  as  is  known  as  ^  Wade  ■;;.  Wade  (Cal.),  81  P.  258,^ 

a  proceeding  in  rem."     Hauscom  not  officially  reported- 

V.  Hanscom  (Colo.),  39  P.  885.  ' 


DECREES  OF  DIVOECE. 


§  1020.  In  general. 

1021.  Decree  nisu 

1022.  Divorce     from     bed    and 

board. 

1023.  Decree  of  nullity. 

1024.  Divorce  from  the  bonds  of 

matrimony —  In  general. 

1025.  After  divorce  tenants  by 

the  entirety  become  ten- 
ants in  common. 

1026.  Dower. 

1027.  Marriage  settlements  and 

articles  of  separation. 


§  1028.  The  wife's  interest  in  the' 
policy  of  insurance. 

Name  of  wife  after  divorce. 

Curtesy  and  husband's  in- 
terest in  the  wife's  prop- 
erty after  divorce. 

Homestead. 

Federal  homestead. 
1033.  EfEect  of  decree  obtained 
in  another  state  on  con- 
structive service. 


1029, 
1030. 


1031. 
1032. 


§  1020.  In  general. —  An  absolute  decree  of  divorce  f romi 
the  bonds  of  matrimony  does  not,  like  a  decree  of  nullity^ 
restore  the  parties  to  their  previous  condition,  but  in  effect 
affirms  the  marriage  and  dissolves  it,  leaving  the  parties  in 
a  new  status  as  to  their  property  rights.  So  far  as  the 
right  to  marry  again  is  concerned,  the  decree  dissolving  the 
marriage  leaves  the  parties  as  free  as  would  a  decree  of  nul- 
lity declaring  that  no  marriage  relation  ever  existed.  Al- 
though the  plaintiff  has  applied  for  and  obtained  a  decree 
of  divorce,  the  defendant  is  also  free  to  marry  again  in  the 
state  where  the  decree  was  rendered  unless  the  statute  pro- 
hibits such  marriage.  This  is  true  because,  in  the  nature 
of  the  case,  a  husband  whose  wife  has  obtained  an  absolute 
divorce  has  no  wife  and  is  therefore  single.  But,  the  mar- 
riage having  existed,  the  property  rights  of  the  parties  have 
become  complicated.  The  husband  acquired  the  wife's  prop- 
erty, and  the  right  to  curtesy,  and  perhaps  some  interest  in 
her  personal  property  and  choses  in  action.     The  wife  ac- 


"976  DEOEEES    OF   DIVOEOE.  [§-1021. 

quired  an  interest  in  the  husband's  realty,  the  right  of  sup- 
port, and  a  right  to  a  distributive  share  of  his  estate  should 
she  survive  him.  The  parties  may  have  acquired  property 
by  marriage  settlements  or  by  joint  effort  or  contributions, 
or  entered  into  conveyances,  agreements  and  partnerships. 
When  the  decree  of  divorce  is  rendered,  the  property  rights 
of  the  parties  should  be  adjusted  at  the  same  time.  But 
where  there  has  been  no  accounting,  the  following  questions 
arise:  What  was  the  effect  of  the  decree?  What  interest 
has*  each  in  the  property  after  divorce?  Who  shall  own 
the  homestead?  and  who  shall  become  the  beneficiary  of 
the  life  insurance?  These  questions  are  difficult,  and  re- 
quire separate  treatment. 

§  1021.  Decree  nisi. —  A  decree  nisi  is  a  conditional  de- 
cree which  may  be  made  absolute  after  a  certain  time.  It 
was  intended  to  give  the  parties  an  opportunity  for  recon- 
ciliation before  an  absolute  divorce  was  rendered.  It  is  in 
the  nature  of  a  decree  of  separation,  and  does  not  dissolve 
the  bonds  of  matrimony.^  This  form  of  decree  is  not  ren- 
dered where  a  divorce  is  granted  for  desertion.^  In  Loui- 
siana only  the  injured  party  can  apply  to  have  the  decree 
made  absolute.^  But  generally  either  party  may  apply 
to  have  an  absolute  decree  rendered.  The  absolute  de- 
cree dates  from  the  time  it  is  rendered,  and  does  not  relate 
back  to  the  time  the  decree  nisi  was  rendered.*  This  form 
of  decree  is  rendered  in  England,  and  has  been  the  source 
of  much  litigation  there.^    In  Massachusetts  it  has  given 

iGarnett  v.  Garnett,  114  Mass.  5  Noble  u  Noble,  1  P.'&  M.  691; 

;347.  Hulse  v.  Hulse,  3  P.  &  M.  359;  Nor- 

^Darrow  v.  Darrow,   159  Mass.  man  v.  Villars,  3  Ex.  D.  359;  Col- 

263,  34  N.  E.  370.  Uns  v.  CoUins,  9  P.  D.  331;  Lang- 

3  Johnston  v.  Johnston,   83  La.  worthy  u  Langwortliy,  11  P.  D.  85; 

An.  1139;  Van  Hoven  v.  Weller,  38  "Wiokham  v.  Wickham,  6  P.  D.  11 ; 

La.  An.  903;  Daspit  v.  Ehringer,  Latham  v.  Latham,  3  Swab.  &  T. 

-33  La.  An.  1174  299,  overruled  in  EUis  v.  Ellis,  8 

<Cook   V.   Cook,   144  Mass.   163.  P.  D.  188;  Boulton  v.  Boulton,  3 

But  see,  contra,  Prole  v.  Soady,  3  Swab.  &  T.  405;  Stoate  v.  Stoate, 

Ch.  Ap.  220.  3  Swab.  &  T.  884;  Stone  v.  Stone, 


-§  1022.]  DECREES    OF   DIVOKCE.  977 

rise  to  many  grave  complications,  and  has  led  the  parties 
into  void  marriages.^  It  is  necessary  for  one  of  the  parties 
to  make  an  application  for  an  absolute  decree;  but  fre- 
quently, through  the  ignorance  or  ■wilfulness  of  the  parties 
or  the  negligence  of  their  attorneys,  this  requirement  is  not 
complied  with,  and  the  parties  enter  into  void  marriages.'' 
The  confusion  and  errors  caused  by  this  form  of  decree  are 
sufficient  grounds  for  repealing  this  statute.  A  much  better 
method  of  guarding  against  hasty  divorces,  and  allowing  the 
parties  time  for  reconciliation  and  reflection,  is  to  render  an 
absolute  divorce  and  prohibit  the  parties  from  marrying 
others  for  a  period  of  six  months  or  more.  A  marriage  con- 
tracted during  this  time  is  void ; '  but  at  the  end  of  this 
period  the  decree  is  in  fuU  force  without  further  order  of 
the  court,  and  the  parties  are  free  to  marry  again.  This 
method  is  less  liable  to  inflict  injury  upon  innocent  parties 
-and  leaves  less  to  depend  upon  the  parties  and  their  attor- 
neys. 

§  1022.  Divorce  from  bed  and  board.—  This  was  the 
only  form  of  divorce  granted  by  the  ecclesiastical  courts. 
It  is  not  a  satisfactory  remedy  in  any  case.  "When  the 
€ouncil  of  Trent  in  1653  declared  that  marriages  were  in- 
dissoluble except  by  the  will  of  the  Pope,  this  remedy  was 
invented  as  a  mere  expedient,  and  perhaps  as  an  excuse  for 

3  Swab.  &  T.  212;  Lewis  u  Lewis,  2  255;  Wales  v.  "Wales,  119  Mass.  .89; 

Swab.  &  T.  394;  Forster  u  Forster,  Moors    v.    Moors,    121    Mass.   233; 

3  Swab.  &  T.  151;  Ousey  u  Ousey,  Whiting    v.    Whiting,    114   Mass. 

1  P.  D.  56;  S.  V.  B.,  9  P.  D.  80;  M.  494;  Edgerly  v.  Edgerly,  112  Mass. 

V.  B.,  3  P.  &  M.  200;  Fitzgerald  v.  .53;  Bigelow  v.  Bigelow,.  108  Mass. 

Fitzgerald,  3  P.  &  M.  136;  Bowen  38 ;  Peaslee  v.  Peaslee,  147  Mass.  171 ; 

V.  Bowen,  3  Swab.  &  T.  580;  Clem-  Brigham  v.  Brigham,  147  Mass.  159; 

ents  V.  Clements,  3  Swab.  &  T.  394;  Pratt  v.  Pratt,  157  Mass.  503. 

Palmer  v.   Palmer,  4  Swab.  &  T.  '^  Wickham  v.  Wiokham,  6  P.  D. 

143;  Daring  v.  Bering,  1  P.  &  M.  11;  Cook  v.  Cook,  144  Mass.  163; 

531;  Patterson  v.  Patterson,  3  P.  &  Googins  v.  Googins,  152  Mass.  533; 

M.  192.  Moors  v.  Moors,  131  Mass.  232. 

1  Sparhawk    v.    Sparhawk,    114  3  Wilhite  v.  Wilhite,  41  Kan.  154, 

Mass.  355;  Graves -u  Graves,  108  31  P.  174. 
Mas&  314;  Fox  v.  Davis,  113  Masa 
63 


978  DECREES    OF   DIVOKCE.  [§  1022^ 

clerical  interference.  There  is  no  necessity  for  this  decree- 
where  the  state  does  not  hold  the  marriage  relation  as  a 
divine  institution.  If  some  persons  have  religious  scruples 
against  a  dissolution  of  the  marriage,  they  -will  find  other 
remedies  adequate.  Separate  maintenance  may  be  granted 
in  most  of  our  states  with  or  without  the  aid  of  statute- 
One  partj""  may  desert  the  other  and  remain  away  without 
the  interference  of  our  courts.  The  deserter  may  be  ar- 
rested for  leaving  the  family ;  but  the  courts  of  our  country 
do  not  grant  a  restitution  of  conjugal  rights ;  so  the  decree 
of  separation  is  not  necessary  as  a  protection  to  an  innocent 
party  who  has  cause  for  deserting.  The  remedy  is  impolitic 
and  directly  opposed  to  the  policy  of  our  laws.  It  breaks 
up  the  home,  and  leaves  the  parties  open  to  secret  marriages 
or  to  adultery.  It  increases  the  danger  of  bastard  offspring,, 
and  acts  in  restraint  of  successful  marriage.  It  leaves  the 
marriage  to  exist  in  name,  imposing  all  its  burdens  upon 
both  parties  and  depriving  both  of  the  benefits  of  the  rela- 
tion. This  form  of  decree  is  not  justified  as  a  temporary 
decree  allowing  and  encouraging  the  parties  to  bring  about 
a  reconciliation.  The  same  result  may  be  attained  by  deny- 
ing an  absolute  divorce.  In  fact,  if  an  absolute  divorce  is 
-granted,  it  will  not  prevent  or  discourage  a  reconciliation, 
since  the  divorced  parties  are  free  to  marry  each  other. 
Perhaps  the  greatest  argument  against  the  decree  from  bed 
and  board  is  that  the  innocent  party  seldom  seeks  this  kind 
of  divorce.  In  Jfew  York,  where  absolute  divorces  are 
granted  for  adultery  'only,  it  is  supposed  that  this  kind  of 
relief  would  be  frequently  granted,  and  yet  the  divorce  sta- 
tistics show  that  in  the  ten  years  ending  in  1886  but  two  per 
cent,  of  all  the  decrees  granted  in  the  state  were  from  bed 
and  board.^ 

In  most  of  our  states  this  form  of  relief  is  permitted  on. 
the  application  of  the  plaintiff;  but  for  the  reasons  already 

1  There  is  a  probability  that  this  proceedings  against  the  husband 

form  of  divorce  will  become  obso-  for  failure  to  support.    The  lower 

lete,  as  the  wife  can  obtain  a  more  courts  of  New  York  have  discon- 

satisf  actory  remedy  by  criminal  tinned  the  practice  of  granting  ali- 


§  1022.]  DECEEES    OF   DIVOECE.  979 

stated  sucli  relief  is  seldom  asked* for.*  The  power  to  grant 
a  decree  from  bed  and  board  must  be  conferred  by  a  stat- 
ute stating  the  causes  for  which  it  may  be  granted.  If 
the  power  is  not  so  conferred,  the  court  will  not  grant  a 
separation  for  the  common-hns^  causes  for  divorce.^  There 
are  some  states  in  which  the  court  may  determine  at  its 
discretion  whether  the  decree  shall  be  for  absolute  divorce 
or  a  divorce  from  bed  and  board.'  In  the  exercise  of  this 
discretion  the  court  will  consider  the  interest  of  the  state 
^s  well  as  the  desire  of  plaintiff.  In  a  Michigan  case  the 
lower  court  granted  a  permanent  separation;  but  the  su- 
preme court  changed  this  decree  to  an  absolute  divorce.  The 
court  said :  "  The  statute  has  authorized  the  courts,  where 
a  case  is  made  out  for  a  permanent  separation,  to  decree  an 
absolute  divorce  if  it  appears  proper  to  do  so.  This  is  not 
done  to  meet  the  desire  of  the  parties,  but  on  grounds  of 
public  policy,  to  prevent  the  mischiefs  arising  from  turning 
out  into  the  world  in  enforced  celibacy  persons  who  are 
neither  married  nor  unmarried.  If  they  have  scruples  about 
remarriage,  there  is  nothing  to  prevent  their  continuing 
single  as  long  as  they  choose.  But  when  the  conduct  of  the 
party  complained  of  has  broken  up  the  marriage  relation, 
and  made  it  impossible  to  continue  it,  the  law  authorizes  the 
court  to  annul  it."  * 

mony  on  the  decree  of  separation,  249 ;  Rutledge  v.'  Eutledge,  5  Sneed, 

because  an  order  for  support  may  554;  Collier  v.  Collier,  1  Dev.,  Eq. 

be  obtained  in  the  police  courts,  356;  Whittington  v.  Whittington, 

where  it  can  be  enforced  by  pro-  2  Dev.  &  Bat.  64;  Moss  v.  Moss,  2 

ceedings  of  a  summaiy  nature  by  Ired.  55;  Ii'win  v.  Irwin  (Ky.),  28 

numerous  officers  of  the   courts.  S.  W.  664. 

Ruopp  V.  Ruopp,  N.  y.  L.  J.,  March  *  Campbell,  C.  J.,  in  Burlage  v. 

24, 18ff4,  cited  and  approved  in  Pat-  Burlage,  65  Mich.  624. 

ton  V.  Patton,  13  Misc.  726.  In  a  late  case  it  appeared  that  the 

1  For  reasons  for  this  divorce  see  husband  failed  to  support  his  wife 

Barrere  v.  Barrere,  4  Johns.  Ch.  187.  although  of  sufficient  ability  to  do 

^Hagle  V.  Hagle,  74  Cal.  608,  fol-  so;  that  he  permitted  his  children 

lowed  by  Eeade  v.  Reade,  22  P.  284  by  a  former  wife  to  abuse  her, 

(California),  not  reported  in  state  without  objection  on  his  part;  that 

reports.  angry  altercations   had  occurred 

3  See  Conant  v.  Conant,  10  CaL  concerning  a  marriage  settlement 


980  DECREES    OF   DIVOECE.  [§  1022. 

In  some  states  the  statute  gives  the  plaintiff  the  power  to 
elect  which  form  of  relief  he  or  she  desires.'  Under  the 
English  Divorce  Act  the  plaintiff  is  entitled  to  what  is  called 
a  judicial  separation  for  certain  causes,  at  his  or  her  election.^ 
This  will  place  it  in  the  power  of  one  party  to  prevent  the 
other  from  contracting  a  second  marriage,  ^nd  is  therefore 
impolitic.  The  decree  from  bed  and  hoard  may  separate 
the  parties  forever  or  for  a  limited  time.  Generally  the  de- 
cree separates  the  parties  "  until  they  shall  be  reconciled  to 
each  other." 

Such  decree  leaves  the  marriage  in  full  force,  but  relieves 
the  parties  from  the  duty  of  cohabitation.  It  does  not 
change  their  status  or  any  of  their  rights  depending  upon 
marriage.'  This  form  of  decree  continues  in  force  until  the 
reconciliation  of  ,t'he  parties,  or  they  may  return  to  cohabita- 
tion without  a  new  marriage  or  any  proceedings  in  court.* 
In  ISew  York  the  decree  of  separation  is  not  annulled'  by 
subsequent  cohabitation  of  the  parties.  Such  decree  will 
not  be  vacated  unless  upon  the  joint  application  of  the  hus- 
band and  wife.^    This  form  of  decree  does  not  render  the 

with  which  the  husband  had  re-  Thompson  v.  Thompson,  10  Phila. 

fused  to  comply;  that  the  parties  131;  Young  u  Young,  1  Hill,  Eq. 

were  more  than  fifty  years  old  and  383;  Jee  v.  Thurlow,  3  B.  &  C.  547; 

had  married  as  a  business  transao-  Ireland  v.  Ireland,  84  N.  Y.  321. 
tion  and  not  from  affection,  and        *  Tiffin  v.  Tiffin,  2  Binn.  (Pa.)  203. 

that  all  attempts  at  reconciliation  But  see  Barrere  v.  Barrere,  4  Johns, 

had  failed  during  the  pendency  of  Ch.  187;    Nathans    v.  Nathans,  3 

the  suit.     It  was  held  a  divorce  Phila.  393. 

from  bed  and  board  forever  was        5  "Where  the  wife  obtained  a  de- 

not  an  abuse  of  discretion.  Hacker  cree  of  separation  in  New  York, 

V.  Hacker  (Wis.),  63  N.  W.  378.  and  the  parties  subsequently  co- 

1  Light  V.  Light,  1  Watts,   363;  habited  in    New  Jersey  and  the 

Smith  V.  Smith,  3  S.   &  E.   248;  husband    deserts    the    wife,    the 

Coverdill    v.    Coverdill,    3    Harr.  courts  of  the  latter  state  hold  that 

(DeL)  13;  Le  Doux  u  Her  Husband,  such  decree   is    not  annulled  by 

10  La.  An.  663.  such  cohabitation,  and  the  wife  is 

-See  Mycock  v.  Mycock,  3  P.  &  not  entitled  to  a  decree  of  divorce 

M.  98.  for  desertion.    Jones  v.  Jones  (N. 

3  Carmena  v.  Blaney,  16  La.  An.  J.  Eq.),  39  A.  503. 
345;    Wait  v.  Wait,  4  N.   Y.   95;        See  form  of  this  decree,  §  764.' 


§  1022.]  DECREES    OF    DIVOECE.  9S1 

wife  a  competent  witness  where  she  was  not  before ; '  or 
confer  upon  her  the  capacity  to  convey  land  as  if  single.^ 
Children  born  during  the  separation  are  presumed  legiti- 
mate.' 

The  matrimonial  relation  is  not  destroyed  by  this  kind  of 
divorce ;  and,  as  a  general  rule,  the  property  rights  of  the 
parties  remain  unchanged.  The  wife  is  still  entitled  to  dower 
on  the  death  of  the  husband.*  And  the  decree  does  not 
terminate  the  husband's  right  of  curtesy.'  But  in  some 
states  the  statutes  give  a  greater  effect  to  the  decree,  and 
authorize  the  court  to  make  a  complete  distribution  of  the 
property  as  if  the  marriage  never  existed ;  or  give  the  in*- 
jured  wife  immediate  possession  of  her  real  property.^  The 
husband's  right  to  reduce  to  his  possession  choses  in  action 
is  not  affected  by  this  decree.'  The  wife's  capacity  to  sue 
and  be  sued  is  not  changed  by  this  form  of  decree,  unless 
the  statute  provide  otherwise.^  The  right  of  administi-ation 
is  not  affected.'    But  the  court  may  refuse  to  appoint  the 

iKemp    V.    Downham,   5    Harr.  kenbrachs,  96  N.  Y.  456;  Meehan  v. 

(Del.)  417.  Meehan,   2  Barb.   377;    Holmes  v. 

2  Ellison  V.  Mobile,  53  Ala.  558.  Holmes,  4  Barb.  395;  Van  Duzer  v. 

3  Van  Aerman  v.  Van  Aerman,  1  Van  Duzer,  6  Paige,  366;  Ren  wick 
Barb.  Ch.  375.  v.  Renwiok,  10  Paige,  420:  Havi- 

*  Castlebury  v.  Maynard,  95  N.  C.  land  v.  Bloom,  6  Johns.  Cli.  178. 

281;  Taylor  t'.  Taylor,"  93  N.  C.  418;  For    Massachusetts,    see    Page    v. 

Rogers  v.  Vines,  6  Ired.  393;  Ho-  Estes,  19  Pick.  269;  Kriger  v.  Day, 

kampr;.  Hagaman,  36  Md.  oil;  Jar-  3  Pick.  .'^lO;  Dean  v.  Richmond,  5 

nigan  v.  Jarnigan,  80  Tenn.  293.  See  Pick.   461.     See,  also,   Marshall  v. 

contra,  Gee  v.  Thompson,  11   La.  Baynes,  88  Va.  1040;  McAllister  v. 

An.  657.  McAllister,  57  Tenn.  845. 

5  Clark  V.  Clark,  6  Watts  &  S.  85;  7  Stephens  v.  Totty,  1  Cro.  Eliz. 
Rochon  V.  Lecatt,  2  Stew.  439;  908;  Ames  v.  Chew,  5  Met.  320; 
Smoot  u  Lecatt,  1  Stew.  590;  Elli-  Dealn  v.  Richmond,  5  Pick.  461; 
son  V.  Mobile,  53  Ala.  558.  Holmes  v.  Holmes,  4  Barb.  295;  Fry 

6  See   statutes   in    Delafleld    v.  v.  Fry,  7  Paige,  461. 

Brady,   108    N.   Y.   524;    Davis    v.  8  Barber  ^■.  Barber,  31  How.  (TJ.  S.) 

Davis,  75  N.Y.  331;  Griffin  v.  Grif-  583;    Barber  v.   Barber,  1   Chand. 

fin,  47  N.  Y.  134;  Kamp  v.  Kamp,  280. 

59  N.  Y.  313;  Erkenbrachs  v.  Er-  ^  Clark  v.  Clark,  6  Watts  &  S.  85. 


982  DECEEES    OF   DITOECE.  [§  1023. 

wife,  where  the  decree  was'  obtained  on  account  of  her  adul- 
tery.' 

§  1023.  Decree  of  nullity. —  A  decree  of  nullity  is  an  ad- 
judication that  a  valid  marriage  never  existed.  The  parties 
stand  as  if  they  had  always  remained  single.  Their  property 
rights  are  not  affected  by  the  invalid  marriage.  Eights  de- 
pending on  marriage,  such  as  dower  and  curtesy,  never 
existed  under  the  void  marriage,  and  such  rights  are  quieted 
by  the  decree  of  nuUity.^  The  court  may  restore  any  prop- 
erty acquired  by  reason  of  the  void  marriage,^  but  will  not 
grant  permanent  alimony.''  Property  rights  and  choses  in 
action  are  not  affected.'^  The  woman  is  relieved  of  her  inca- 
pacity to  sue  and  be  sued.  She  may  be  sue  the  man  who 
has  entrapped  her  into  a  void  marriage,  and  compel  him  to 
account  for  rents  and  profits  of  property  he  took  under 
such  marriage.^  "Where  a  woman  is  induced  by  fraud  and 
deceit  to  enter  into  a  void  marriage,  she  may  recover  dam- 
ages for  such  tort  without  first  having  the  marriage  annulled. 
Such  action  may  be  maintained  against  the  man's  adminis- 
trators.' It  seems  that  an  action  for  services  rendered  dur- 
ing a  void  marriage  will  not  lie,  for  there  is  no  implied 
contract  to  pay  for  such  services  during  such  marriage.  In 
a  recent  case  the  wife  discovered,  after  the  death  of  her 
husband,  that  he  had  another  wife  living  and  not  divorced. 
She  sued  his  administrators  for  services  rendered  as  house- 
keeper while  living  with  the  intestate.  The  court  said: 
"  The  legal  relations  of  the  parties  did  not  forbid  an  express 

1  Goods  of  Ihler,  3  P.  &  M.  50.  conducted  by  both,  she  is  entitled 

2  Price  V.  Price,  124  N.  Y.  599,  37  to  one-half  the  net  profits  and  all 
N.  E.  393;  Drummond  v.  Irish,  53  money  advanced  with  interest 
la.  41 ;  Zule  v.  Zixle,  Saxton,  96.  thereon.     Wheeler  v.  Wheeler,  79 

3  A.  V.  M.,  10  P.  D.  178;  Wheeler  Wis.  303,  48  N.  W.  260. 

V.  Wheeler,  76  Wis.  631.  6  Young  v.  Naylor,  1  Hill  Eq.  383; 

« Fuller  V.  Fuller,  33  Kan.  582.  McDonald  v.  Fleming,  13  B.  Mon. 

5  Reading  v.  Ludlow,  43  Vt.  628;  385. 

Kelly  u.  Scott.  5  Gratt.  479.    Where  'Higgins  v.  Breen,  9   Mo.   498; 

a  woman  has  contributed  personal  Blossom  v.  Barrett,  37  N.  Y.  434. 
services  and  money  to  a  business 


§  1023.]  DECREES    OF   DIVOECE.  983 

contract  between  them,  but  their  actual  relations  and  the 
circumstances  under  which  the  work  was,  performed  nega- 
tived any  implication  of  an  agreement  or  promise  that  it 
should  be  paid  for.'  .  .  .  There  was  clearly  no  obliga- 
tion to  pay  wages  arising  from  contract ;  and  the  plaintiff's 
case  is  rested  on  the  ground  that  there  was  an  obligation  or 
dut^T  imposed  by  law  from  which  the  law  raises  a  promise 
to  pay  money  upon  which  the  action  can  be  sustained.  The 
plaintiff's  remedy  was  by  an  action  of  tort  for  the  deceit  in 
inducing  her  to  marry  him  by  false  representations  or  by 
false  promise.^  The  injury  which  was  sustained  by  her  was 
in  being  led  by  the  promise  or  the  deceit  to  give  the  fellow- 
ship and  assistance  of  a  wife  to  one  who  was  not  her  hus- 
band, and  to  assume  and  act  in  a  relation  and  condition  that 
proved  to  be  false  and  ignominious.  The  duty  which  the 
intestate  owed  to  her  was  to  make  recompense  for  the  wrong 
which  he  had  done  her." '  This  reasoning  is  wrong,  as  it 
assumes  that  the  plaintiff,  having  a  right  to  sue  in  tort,  can- 
not waive  the  tort  and  sue  for  the  services  rendered  while 
plaintiff  was  ignorant  of  the  real  facts.  A  party  who  ac- 
-cepts  services  from  another  is  not  required  to  pay  for  the 
same  on  an  implied  contract  if  the  circumstances  show 
that  such  services  were  intended  to  be  gratuitous  when  ren- 
dered. But  in  this  case  the  services  were  procured  by  fraud, 
and  the  case  stood  as  if  the  intestate  had  procured  money 
by  fraud  and  his  estate  was  liable  for  the  same.  In  a  sim- 
ilar case  the  wife  was  allowed  to  recover  from  the  husband's 
administrator,  and  it  was  held  that  if  the  injury  was  a  tort 
which  resulted  in  no  benefit  to  intestate,  the  action  could 
not  survive ;  but  that  as  the  injury  resulted  in  an  advantage 
to  him  the  law  implied  a  promise  to  pay  for  her  services.'' 

1  Citing  Robbing  v.  Potter,  98  *  Higgins  v.  MoNally,  9  Mo.  493. 
Mass.  532.  Where  a  decree  annulling  a  mar- 

2  Citing  Blossom  v.  Barrett,  37  riage  is  rendered,  it  is  error  to  re- 
N.  Y.  434  fuse  to  permanently  enjoin  a  judg- 

3  Cooper  V.  Cooper,  147  Mass.  370.  ment  for  alimony  obtained  in  an- 
See  contra,  Fox  v.  Dawson,  8  Mar-  other  proceeding.  Scurlock  v. 
tin,  94.  Scurlock,  93  Tenn.  639,  23  S.  W.  858. 


984  DECREES    OF   DIVOECE.  [§  1024^ 

§  1024.  Diyorce  from  the  bonds  of  matrimony  —  In 
general. —  Every  decree  of  divorce  is  to  some  extent  an  ad- 
judication that  the  marriage  was  valid  and  existing  at  the 
date  of  the  decree ;  for  if  no  marriage  is  shown  the  suit  f or- 
divorce  must  fail.  A  decree  dissolving  the  marriage  affirms- 
the  existence  of  the  marriage  but  dissolves  it.  The  parties. 
■  are  not  restored  to  the  position  occupied  before  marriage,, 
but  are  placed  in  a  new  status  as  to  their  property  rights. 
Both  parties  are  free  to  marry  again,  unless  the  statute  au- 
thorizes the  court  to  prohibit  the  marriage  of  the  guilty 
party .^  The  obligations  of  marriage  being  mutual,  the  ab- 
rogation of  them  as  to  one  party  emancipates  the  other.^ 

The  general  rule  as  to  property  rights  of  the  parties  which 
depend  upon  the  marriage  relation  is  that  all  non-vested 
property  rights  terminate  upon  the  dissolution  of  the  marriage. 
Thus  the  wife's  choses  in  action  may  be  reduced  to  the  pos- 
session of  the  husband  during  coverture,  but  after  divorce 
this  right  of  the  husband  ceases.'  If  after  divorce  he  ob- 
tains money  due  her,  she  may  recover  it  from  him.*  After 
divorce  the  husband  may  recover  damages  for  the  seduction 
of  his  wife  before  divorce.'  The  husband  and  wife  may  sue- 
each  other  after  the  marriage  is  dissolved.  The  wife  cannot 
recover  damages  from  the  husband  for  torts  inflicted  during; 
the  marriage;  for  the  divorce  cannot  make  that  a  cause  of 
action  which  was  not  a  cause  of  action  during  marriage.^ 

After  the  marriage  is  dissolved  the  wife  can  recoyer  from 
her  former  husband  for  personal  services  performed  before 
marriage.  "While  the  marriage  relation  subsisted  she  could 
not  maintain  the  action ;  but  when  the  relation  ceased  her 
disability  was  removed.'  The  wife  after  divorce  has  no  right 
to  any  part  of  the  personal  property  of  the  husband.     The 

1  Barber  v.  Barber,  16  Cal.  378;  *EzeU  v.   Dodson,  60  Tex.  334; 
Baughman  v.  Baughman,  32  Kan.  Legg  v.  Legg,  8  Mass.  99.                i 
538.  5  Dickerman  v.  Graves,  6  Cush.- 

2  As  to  privileged   communica-  308. 

tions  after  divorce,  see  §  783.  ^  Nickerson  v.  Nickerson,  65  Tex.. 

3  Browning  v.  Headly,  3  Rob.  281;  Abbott  u  Abbott,  67  Me.  204^ 
<Va.)  840.  7  Carlton  v.  Carlton,  72  Me.  115, 


§  1026.]  DECREES    OF   DITOEOE.  985' 

statute  providing  that  she  shall  not  lose  dower  on  divorce 
does  not  create  any  right  to  personal  property,  as  the  terra 
dower  in  such  statute  refers  to  real  property.'  The  right 
to  administration  is  also  destroyed  by  divorce.'  The  wife  is 
not  entitled  to  a  distributive  share  of  the  personal  estate, 
although  she  was  the  innocent  party  and  obtained  a  divorce 
for  her  husband's  fault.'  In  general  the  divorced  wife  is 
not  after  the  death  of  the  husband  entitled  to  the  rights  of 
a  widow.* 

§  1025.  After  divorce  tenants  by  the  entirety  become 
tenants  in  common. —  Where  land  is  conveyed  to  both  hus- 
band and  wife  they  become  tenants  by  the  entirety,  as  the 
common  law  regarded  them  as  one  person.  The  two  took 
the  whole  estate,  and  each  was  seized  of  the  whole  and  not 
an  undivided  portion  of  it.  If  death  separated  them  the  sur- 
vivor still  held  the  whole,  because  the  survivor  always  had 
been  seized  of  the  whole,  and  the  other  had  no  estate  which 
was  devisable.  Neither  can  sell  the  estate,  and  neither  can 
sue  for  partition  or  for  damages  to  the  estate.  The  estate 
depends  upon  the  theory  of  the  legal  unity  of  husband  and 
Avife.  If  this  unity  is  dissolved  the  estate  does  not  revert, 
but  must  remain  in  the  parties.  It  cannot  continue  to.  be 
by  entireties,  since  the  divorced  wife  will  not  inherit  from 
the  husband.  After  divorce  the  legal  unity  of  the  parties  is 
dissolved,  they  become  two  persons,  and  hold  the  estate  as 
tenants  in  common.^  This  doctrine  is  well  illustrated  by  a 
recent  case  in  New  York.  Property  was  conveyed  by  deed 
to  the  husband  and  wife  without  defining  the  tenancy  of 

citing  Webster  v.  Webster,  58  Me.  ley,  18  Stew.  478.     But  not  by  con- 

139;  Blake  u  Blake,  64  Me.  177.  See,  duct  which  would  be  a  cause  for 

also,  Crowther  v.  Crowther,  55  Me.  divorce.    Altemus'  Case,  1  Ashm. 

358 ;   Pittman  v.    Pittman,    4  Or.  49 ;  Lodge  v.  Hamilton,  3  S.  &  R. 

398 ;  Smiley  v.  Smiley,  18  O.  St.  543;  491 ;  Coover's  Appeal,  53  Pa.  437. 

Abbott  V.  Winchester,   105  Mass.  ^  jn  re  Ensign,  37  Hun,  153. 

115.  *  Chenowith   v.    Chenowith,    14 

1  Kent  V.  McCann,  52  111.  Ap.  305.  Ind.  2. 

■-'  In  re  Ensign,  103  N.  Y.  284,  ap-  ^  Donegan  u  Donegan  (Ala.),  15 

proving  37  Hun,  153;  Bell  v.  Smal-  So.  828. 


986  DECEEES  OF  DIVOECE.  [§  1025. 

each.  The  husband  procured  a  divorce  on  account  of  the 
adultery  of  the  wife,  married  again,  and  died  intestate.  The 
first  wife  claimed  that  this  convej^ance  created  an  estate  by 
the  entirety,  and  that  upon  the  death  of  the  husband  she 
was  entitled  to  the  whole  of  the  estate  as  survivor.  The 
second  wife  claimed  dower  in  the  entire  estate.  It  was  beld 
that  the  first  wife  was  entitled  to  one-half  of  the  estate  els 
tenant  in  common,  and  the  second  wife  was  entitled'to  dower 
in  one-half  of  the  estate.  Counsel  for  the  first  wife  claimed 
that  it  was  only  necessary  that  the  parties  should  stand  in 
the  relation  of  husband  and  wife  at  the  time  of  the  convey- 
ance, and  at  that  time  the  estate  vested,  and  no  subsequent 
divorce  can  affect  an  estate  which  is  already  vested.  Eut 
the  court  inquired,  "  What  is  the  character  of  the  estate 
which  became  vested  by  the  conveyance  ?  If  it  were  of  such 
kind  that  nothing  but  the  termination  of  the  marriage  by 
the  death  of  one  of  the  parties  could  affect  it,  then  of  course 
the  claim  of  counsel  is  made  out ;  but  it  is  an  assumption  of 
the  whole  case  to  say  that  the  estate  was  of  the  character 
he  claims.  When  the  idea  upon  which  the  creation  of  an 
estate  by  entirety  depends  is  considered,  it  seems  to  me  much 
the  more  logical,  as  well  as  plausible  view,  to  say  that  as  the 
estate  is  founded  upon  the  unity  of  husband  and  wife,  and 
it  never  would  exist  in  the  first  place  but  for  such  unity, 
anything  that  terminates  the  legal  fiction  of  the  unity  of 
two  separate  persons  ought  to  have  an  effect  upon  the  estate 
whose  creation  depended  upon  such  unity.  It  would  seem 
as  if  the  continued  existence  of  the  estate  would  naturally 
depend  upon  the  continued  legal  unity  of  the  two  persons 
to  whom  the  conveyance  was  actually  made.  The  survivor 
takes  the  whole  in  case  of  death,  because  that  event  has  ter- 
minated the  marriage,  and  the  consequent  unity  of  the  par- 
ties. An  absolute  divorce  terminates  the  marriage  and  unity 
of  person  just  as  completely  as  does  death  itself,  only  instead 
of  one,  as  in  the  case  of  death,  there  are  in  the  case  of  di- 
vorce two  survivors  of  the  marriage,  and  there  are  from  the 
time  of  such  divorce  two  living  persons  in  whom  the  title 


§  1026.]  DECKEES    OF   DIVOECE.  987 

still  remains.  It  seems  to  me  the  logical  and  natural  out- 
come from  such  a  state  of  facts  is  that  the  tenancy  by  the 
entirety  is  severed,  and,  a  severance  having  taken  place,  each 
takes  his  or  her  proportionate  share  of  the  property  as  a 
tenant  in  common  -without  survivorship."  ^  Where  third 
persons  have  purchased  the  husband's  interest  in  an  estate 
in  entirety,  a  decree  of  divorce  will  entitle  the  Avife  to  the 
right  of  a  tenant  in  common  without  the  right  of  survivor- 
ship.^ In  Michigan  it  is  denied  that  divorce  has  any  effect 
upon  an  estate  by  entirety.'  The  opinion  does  not  discuss  the 
effect  of  divorce  upon  this  estate,  but  cites  Babcock  v.  S/nit/i* 
as  holding  that  the  relative  rights  of  the  husband  and  wife 
in  lands  conve\'ed  to  a  trnstee  in  trust  for  them  both  are  not 
affected  by  divorce.  In  Indiana  it  is  held  that  where  land 
is  conveyed  to  a  husband  and  wife  "  as  joint  tenants,  sur- 
vivor taking  the  whole,"  the  whole  estate  vests  in  the  sur- 
vivor, although  the  parties  Avere  divorced.* 

§  1026.  Dower. —  In  some  states  the  statute  has  simply 
affirmed  the  rule  that  divorce  bars  dower.*  In  other  states 
it  is  provided  that  dower  is  not  lost  by  a  decree  of  divorce 
on  account  of  the  misconduct  of  the  husband.'    An  exami- 

iStelz  V.  Shreok,  128  N.  Y.  263,  28  parties  during  their  "joint  lives," 

N.  E.  510,  affirming  10  N.  Y.  Supp.  a  divorce  is,  in  contemplation  of 

790,  14  N.  Y.  Supp.  106.     Consult,  law,  the  same  as  death,  and  such 

also,  Baggs  v.  Baggs,  55  Ga.  590;  estate  is  terminated  by  an  abso- 

Baker    v.  Stewart,    40    Kan.   442;  lute  divorce.    Highley  v.  Allen,  3 

Jackson  v.  Shelton,  89  Tenn.  82,  16  Mo.  Ap.  521. 

S.  W.  142;  Thornley  v.  Thornley,  3  «McKean  v.  Brown,  83  Ky.  208; 

Ch.  229  (1893);   Biggi  v.  Biggi,  98  Van  Cleaf  v.  Burns,  118  N.  Y.  549, 

Cal.  35,  33  P.  803.  23  N.  E.  881;  Hawkins  v.  Eagsdale, 

2Hopson    V.   Fowlkes,   92  Tenn.  80  Ky.  353;  Hinsom  r.  Bush,  84  Ala. 

«97,  33  S.  W.  55;  Harrer  v.  Wallner,  368,  4  So.  410,  overruling  Williams 

80  111.    197.    See   contra,  Ames  v.  v.  Hale,  71  Ala.  83. 

Norman,  4  Sneed,  683.  '  Gould    v.    Crow,    57    Mo.    300 

3  Lewis'  Appeal,  85  Jlich.  340,  48  Hunt    v.  Thompson,   61   Mo.   148 

N.  "W.  580,  overruling  Dowling  v.  Merril  v.    Shuttuck,   55    Mo.   370 

Salliotte,  83  Mich.  131.  Stilphen  v.  Houdlette,  60  Me.  447 

<  33  Pick.  61.  Moulton    v.    Moulton,   76  Me.   85 

5  Lash  V.  Lash,  58  Ind.  536.  Lewis  v.  Meserve,  61  Me.  374;  Will- 
Where  the  estate  is  vested  in  both  iams  v.  Williams,  78  Me.  83;  Mo- 


988  DEOBEES   OF  DIVOECB.  [§  1026. 

nation  of  these  cases  will  not  be  necessary  here.  But  should 
a  question  arise  as  to  the  interpretation  of  a  similar  statute^ 
some  assistance  may  be  derived  from  the  authorities  cited. 
This  form  of  statute  giving  the  wife  the  right  of  dower  on 
divorce  is  not  retrospective,  and  only  applies  to  decrees  ren- 
dered after  the  passage  of  the  act.^ ' 

The  word  "  dower "  denotes  the  interest  which  the  law 
gives  the  widow  in  the  real  estate  of  her  deceased  husband. 
It  is  an  inchoate  interest  which  attaches  to  the  real  estate  of 
the  husband  at  marriage,  and  to  land  acquired  subsequently, 
and  becomes  vested  in  the  wife  upon  the  death  of  the  husband. 
If  before  death  the  marriage  is  dissolved  by  divorce,  the  right 
to  dov^er  does  not  accrue,  because  at  the  death  of  the  hus- 
band he  had  no  wife,  and  consequently  no  widow.  Before 
his  death  he  was  under  no  legal" obligation  to  support  her, 
and  his  lands  should  not  bear  any  such  burden  after  his 
death.  It  is  essential  to  dower  that  the  marriage  relation 
subsist  at  the  death  of  the  husband.  The  right  to  dower 
after  a  dissolution  of  the  marriage  does  not  exist  at  the 
common  law.  Marriages  were  not  dissolved  at  common 
law  for  causes  arising  after  the  relation  was  entered  into ; 
so  that  this  question  can  arise  only  under  our  statutes.  The 
courts  cannot  therefore  create  a  new  right,  because  the  di- 
vorce has  left  the  wife  in  circumstances  unknown  to  the 
common  law.  The  legislature,  in  creating  a  new  status  — ■ 
that  of  a  wife  divorced  for  causes  arising  subsequent  to  the 
marriage, — should  have  conferred  a  corresponding  right. 
The  authorities  concur  that  a  decree  of  divorce  dissolving 
the  marriage  is  a  bar  to  dower,  whether  the  Avife  is  inno- 
cent or  guilty,  whether  the  decree  was  obtained  by  her,  or 

Gill?;.  Deming,  44  0.  St.  645;  Lamp-  Mass.   378;  Davol  ?;.   Howland,  14 

km  V.  Knapp,  30  O.  St.  454;  Clark  Mass.  319;  Hood  v.  Hood,  110  Mass. 

V.  Lett,  11  111.  105;  Gordon  v.  Dick-  463. 

son,  131  111.  141 ;  Adams  v.  Storey,  i  Cui-tis  v.  Hobart,  41  Me.   281. 

135  111.  448;  Crane  u  Fipps,  39  Kan.  For  effect  of  divorce  obtained  in 

585 ;  Chapman  v.  Chapman,  48  Kan.  another   state    upon    dower,    see 

636,  39  P.   1071;  Moran  v.   Somes,  §1033. 
154  Mass.  300;  Snow  v.  Stevens,  15 


§  1026.]  DECEEES    OF   DIVORCE.  989 

against  her,  unless  the  statute  provide  otherwise.'  And  it 
is  not  disputed  that  the  wife  has  no  interest  in  the  lands  of 
her  husband  acquired  after  divorce.^ 

In  New  York  it  was  early  decided  that  a  divorce  dissolv- 
ing the  marriage  on  the  ground  of  the  adultery  of  the  hus- 
band does  not  deprive  the  wife  of  the  right  of  dower  in  his 
estate ;  but  this  decision  was  influenced  to  some  extent  by 
the  statutes  of  that  state.'  The  supreme  court  decided  that 
the  right  to  dower  was  lost  by  a  dissolution  of  the  mar- 
riage, but  this  decision  was  reversed  in  the  court  of  appeals. 
In  discussing  the  legal  effect  of  a  dissolution  of  the  marriage 
it  was  said :  "  A  divorce  at  common  law  avoided  the  mar- 
riag'e  db  inkio.  It  was  equivalent  to  a  sentence  of  nullity 
under  our  statute.  It  placed  the  parties  in  the  same  rela- 
tion to  each  other  as  though  there  had  been  no  marriage. 
The  issue  of  the  marriage  was  bastardized.  It  was  in  ref- 
erence to  the  law  as  it  then  stood  that  Lord  Coke  said  that 
to  entitle  the  wife  to  dower  it  was  necessary  that  the  mar- 
riage should  continue,  for  if  that  be  dissolved  the  dower 
Avould  cease.  This  rule,  he  is  careful  to  say,  is  only  applica- 
ble where  there  is  a  divorce  a  vinculo  matrunonil;  in  other 
words,  when  the  marriage  is  declared  void  ab  initio.  For 
adultery  the  divorce  or  separation  at  common  law  was  only 
a  mensa  et  thoro.     Of  course  it  did  not  affect  the  right  of 

1  Barrett  v.  Failing,  6  Saw.  473;  v.  Heroklebrath,  2§  Ind.  71;  Milti- 

S.  C,  111  U.  S.  533;  Levins  v.  Slea-  more  v.  Miltimore,  40  Pa.  151;  Cal- 

tor,  3  Greene  (la.),  604;  Cunning-  ame  v.  Calame,  24  N.  J.  Eq.  440; 

ham  V.  Cunningham,  3  Ind.  333;  MoCraney  f.  McCraney,  5  la.  332; 

Burdick  v.  Briggs,   11  Wis.    136;  Gleason  v.  Emerson,  51  N.  H.  405; 

Rice    V.    Lumley,    10    O.    St.   596;  Jordan  u  Clark,  81  111.  465 ;  Pullen 

Lampkin  v.  Knapp,  20  O.  St.  i54;  v.  PuUen  (N.  J.  Eq.),  38  A.  719. 

Whitsell  V.  Mills,  6  Ind.  329;  Lash  2Fitzpatrick  v.  Dubois,  3  Sawyer, 

V.  Lash,  58  Ind.  536;  Frampton  v.  434;  Kade  v.  Lauder,  48  How.  Pr. 

Stephens,  31  Ch.  D.  164;  Marvin  v.  383;   Maynard  v.  Hill,   135  XJ.   S. 

Marvin,  59  la.  699;  Winch  v.  Bol-  190,  3  Wash.  Ter.  331;  Marshall  v. 

ton  (la.),  63  N.  W.  330;  Charraud  Baynes,  88  Va.  1040,  14  S.  E.  978; 

V.   Charruand,   1  N.  Y.  Leg.  Obs.  Schust  v.  Moll,  10  N;  Y.  Supp.  703. 

134;  Clark  v.  Clark,  6'W.  &  S.  85;  'gee  comment  of  Justice  Gray 

Dobson  V.  Butler,  17  Mo.  87;  Billam  in  Barrett  v.  Failing,  111  U.  S.  533. 


990  DECBEES    OF   DIVOKOE.  [§  1026, 

dower.  Until  our  statute  there  was  no  such  a  thing  as  a 
divorce  which  recognized  and  admitted  the  validity  of  the 
marriage,  and  avoided  it  for  causes  which  happened  after- 
wards. Such  a  divorce  is  alone  the  creature  of  the  statute. 
The  principles  applicable  to  a  common-law  divorce  cannot 
be  made  applicable  to  a  divorce  which  admits  the  validity 
of  the  marriage,  and  the  rights  and  obligations  resulting 
from  it.  The  effect  of  such  a  divorce  must  be  determined 
entirely  by  the  provisions  of  the  law  under  whose  author- 
ity it  is  granted.  The  common-law  divorce  avoided  the 
marriage,  and  all  rights  and  obligations  resulting  from  it. 
The  statutory  divorce  is  limited  in  its  operation,  and  only 
affects  the  rights  and  obligations  of  the  parties  to  the  extent 
declared  by  statute.  The  marriage  being  valid,  the  rights 
it  conferred,  and  the  obligations  it  imposed,  continue  where 
the  legislature  has  failed  to  interfere."  ^  The  court  then 
refers  to  various  provisions  of  the  statute  which  tended  to- 
show  the  intent  to  preserve  the  right  of  dower  where  the 
wife  was  the  aggrieved  party.  This  doctrine  is  approved 
in  a  subsequent  case  ^  in  jN'ew  York,  but  not  other  states. '^ 
The  answer  to  the  argument  of  the  court  is  that  dower  at 
common  law  depended  upon  the  concurrence  of  three  things : 
the  marriage,  seisin  of  the  husband,  and  death  of  the  hus- 
band. The,  marriage,  when  dissolved  by  the  statutory  di- 
vorce, does  not  continue  until  the  death  of  the  husband ;  so 
that  he  has  no  widow,  and  therefore  his  estate  is  free  from 
dower.  That  the  statutory  divorce  has  placed  the  wife  in 
circumstances  unknown  at  common  law  does  not  authorize 
the  court  to  create  a  right  which  did  not  exist  at  common 
law,  and  is  not  conferred  by  statute.* 

1  Wait  V.  Wait,  4  N.  Y.  95,  revers-  ^  Where  the  right  of  dower  is  not 
ing  4  Barb.  193.  terminated  after  divorce,  the  wife 

2  Forrest  v.  Forrest,  6  Duer,  103.  can  execute  a  valid  release  to  her 

3  The  interpretation  in  Wait  v.  husband  as  if  the  parties  were 
Wait,  4  N.  Y.  95,  is  questioned  in  strangers.  Savage  v.  Grill,  19 
Moore  v.  Hegeman,  37  Hun,  70,  af-  Hun,  4 

firmed  93  N.  Y.  531;  Price  v.  Price, 
124  N.  Y.  599. 


§  1026.]  DECEEES    OF   DIVORCE.  991 

The  precise  question  decided  in  Wait  v.  Wait  arose  in 
Arkansas  under  the  same  statute,  which  provides  that,  "  in 
case  of  divorce  dissolving  the  marriage  contract  for  the  mis- 
conduct of  the  Avife,  she  shall  not  be  endowed."  The  court 
disapproved  the  New  York  interpretation,  and  held  that  the 
right  of  dower  was  terminated  on  divorce  unless  the  statute 
expressly  preserved  the  right  and  repealed  the  common  law. 
It  was  said:  "The  common  law  in  this  respect  is  unre- 
pealed. Here  no  2'■Mas^■-marital  relation  or  condition  exists, 
after  a  divorce  from  the  bonds  of  matrimony  has  been 
granted,  upon  which  the  right  of  dower  can  attach.  Under 
the  statutes  of  this  state  the  widow  only  is  entitled  to 
dower.  It  is  true  that  the  lanffuaffe  of  the  statute  .  .  . 
indicates  the  opinion  that  the  wife  would  be  entitled  to 
dower  if  the  divorce  should  be  granted  on  account  of  the 
misconduct  of  the  husband;  but,  as  said  by  Chief  Justice 
Marshall,'  '  a  mistaken  opinion  of  the  legislature  concerning 
the  law  does  not  make  law.' "  ^ 

If  the  statute  preserves  the  right  of  dower  after  divorce? 
it  win  be  difficult  to  determine  when  the  right  to  dower  ac- 
crues. The  right  to  dower,  in  the  ordinary  meaning  of  that 
term,  accrues  upon  the  death  of  the  husband,  as  none  but 
widows  can  claim  dower.  If  the  statute  merely  preserves 
the  dower,  such  right  remains  inchoate  until  the  husband's 
death,  when  the  right  would  accrue.  Then,  if  the  husband  has 
married  again,  both  wives  are  entitled  to  dower  in  the  same 
estate.  The  terms  of  the  statute  will  generally  permit  a 
different  construction,  so  that  the  divorced  wife  is  permitted 
to  recover  dower  when  the  divorce  is  granted.  Under  the 
statute  of  Massachusetts  providing  that,  "  When  the  divorce 
shall  be  for  the  cause  of  adultery  committed  by  the  husband, 
the  wife  shall  have  her  dower  assigned  her  in  the  same  man- 
ner as  if  such  husband  was  naturally  dead,"  it  is  held  that 
the  right  to  dower  accrued  when  the  decree  was  rendered.* 

1  In  Postmaster-General  v.  Early,        ^  Da  vol  v.  Howland,  14  Mass.  219; 

13  Wheat.  148.  Harding  v.  Alden,  9  Me.  140;  Smith 

KWood  V.  Wood,  59  Ark.  441.  v.  Smith,  13  Mass.  331.    See  Run- 


992  DEOEEES    OF   DIVOECE.  [§  1027. 

The  statute  of  Michigan  provides  that  "  "When  a  divorce 
shall  be  decreed  for  the  cause  of  adultery  committed  by  the 
husband,  or  on  account  of  his  being  sentenced  to  confine- 
ment at  hard  labor,  the  wife  shall  be  entitled  to  her  dower 
in  his  lands  in  the  same  manner  as  if  he  were  dead."  After 
obtaining  a  divorce  a  wife  brought  an  action  under  this  stat- 
ute to  recover  dower,  and  it  was  held  that  the  right  of  dower 
and  the  time  when  it  shall  become  a  vested  interest  may  be 
regulated  by  legislature,  and  that  the  term,  "  as  if  he  ivere 
dead"  indicated  that  the  cause  of  action  accrued  when  the 
decree  of  divorce  became  final.^  She  is  therefore  entitled  to 
dower  in  the  husband's  lands  prior  to  the  hen  of  a  mortgage, 
although  such  mortgage  was  executed  by  the  husband  dur- 
ing the  divorce  proceedings  to  obtain  money  to  pay  the  wife 
alimony.^  In  case  the  husband's  lands  are  foreclosed,  the 
divorced  wife  is  entitled  to  dower  in  the  surplus  arising  from 
the  sale.'  But  it  is  held  that  the  Avife  is  not  entitled  to  an 
assignment  of  dower  in  the  divorce  proceedings.*  A  decree 
for  alimony  will  bar  the  right  to  dower  under  this  form  of 
statute.* 

§  1027.  Marriage  settlements  aiitl  articles  of  separa- 
tion.—  The  rights  under  articles  of  separation  or  marriage 
settlements  not  depending  upon  coverture  are  not  affected 
by  a  dissolution  of  the  marriage.  The  decree  of  divorce 
does  Tioiper  se  destroy  such  rights.^  In  fixing  the  amount 
of  alimony  the  court  may  consider  the  amount  settled  upon 
the  wife  as  a  fair  allowance,  and  allow  the  agreement  to  re- 

nels  V.  Webber,  59  Me.  488;  Arnold  ,    6  Clark  v.  Fosdick,  13  Daly,  500 

V.  Donaldson,  46  O.  St.  73.  Carpenter  v.  Osborn,  103  N.  Y.  552 

1  Percival  v.  Peroival,  36  Mich.  Galusha  v.  Galusha,  116  N.  Y.  635 
297;  Orth  v.  Orth,  69  Mich.  158,  37  Fox  v.  Davis,  113  Mass.  255;  Wright 
N.  W.  67;  Rea  v.  Rea,  63  Mich.  357.  v.  Miller,  1  Sandf.  Ch.  108;  Ander- 

2  Orth  V.  Orth,  69  Mioh.  158.  son  v.  Anderson,  1  Edw.  Ch.  380 
» Bowles  V.  Hoard,  71  Mich.  150.  Buffalo  v.  Whitedeer,  15  Pa.  183 
*  Holmes  v.  Holmes,  54  Minn.  353,    Dalton  v.  Bernardston,  9  Mass.  201 

56  N.  W.  40.  Stultz  V.  Stultz,  107  Ind.  400;  Hinds 

5Tatro  u  Tatro,  18  Neb.  395,  35  v.  Hinds,  7  Mackey,  85;  Fitzgerald 
N.  W.  571.  V.  Chapman,  1  Ch.  D.  563. 


§  1028.]  DECEEES    OF   DIVOKCE.  993 

main  in  force.^  Or  if  the  amount  is  not  sa,tisfactory  the 
court  may  grant  additional  alimony.  The  court  cannot  do 
so,  however,  in  the  absence  of  proof  that  the  sum  agreed 
upon  was  insufficient.^  Where  property  is  conveyed  to  a 
trustee  to  be  held  for  the  benefit  of  the  wife  during  her  life, 
with  a  life  interest  in  the  husband,  and  to  her  heirs  on  de- 
cease of  both,  it  was  held  that  after  her  death  he  was  en- 
titled to  the  use  of  the  property,  although  the  marriage  was 
dissolved.^  Instalments  payable  to  the  wife  duriug  her  life 
are  due  to  her  after  the  marriage  is  dissolved.*  Usually  the 
term  "  wife "  is  descriptive  of  the  character  in  which  she 
takes  a  bequest  or  receives  the  benefit  of  an  insurance  pol- 
icy.' And  where  a  third  person  provides  an  annuity  by 
will  for  the  husband  and  his  wife,  she  would  not  be  entitled 
to  the  annuity  after  divorce.  Sometimes  the  terms  of  the 
settlement  are  such  that  a  divorce  will  terminate  all  rights 
imder  it.  A  settlement  "during  the  continuance  of  said 
marriage "  is  terminated  by  either  death  or  divorce.^ 

§  1028.  The  wife's  interest  in  the  policy  of  insurance.— 
The  wife's  interest"  in  a  policy  of  insurance  is  a  chose  in  ac- 
tion where  she  is  named  as  the  sole  beneficiary.  It  is  an 
interest  which  is  vested  in  her  when  the  policy  is  delivered.'' 
The  divorce  does  not,  therefore,  affect  her  interest  in  the 
policy.'  It  has  been  contended  that  after  the  divorce  the 
wife  has  no  insurable  interest  in  the  life  of  the  husband. 

1  Pauly  V.  Pauly,  69  Wis.  419,  34  v.  Hipwell,  1892  Probate,  147.  And 
'N.  W.  512.            "  see,  also.  Division  of  property,  §  935. 

2  Galusha  v.  Galusha,  116  N.  T.  '  Olmstead  v.  Keys,  85  N.  Y.  593. 
635,  aflannlng  43  Hun,  181.  But    see,    contra,     Goldsmith    v. 

'Babcock  v.  Smith,  23  Pick.  61.  Union  Mutual  Life  Ins.  Co.,  15  Abb. 

^MoGrath   v.  Insurance    Co.,   8  N.  Cas.  409,  18  Abb.  N.  Cas.  325, 

Phila.  113.  where  policies  payable  to  the  wife 

5  See  contra,  Bullock  v.  Zilley,  were  reformed  and  made  payable 
Saxton,  489.  to  another  after  divorce. 

6  Harvard  College  v.  Head,  111  sjioKee  v.  Phoenix  Ins.  Co.,  28 
Mass.  209.  For  power  under  di-  Mo.  383;  Phoenix  Ins.  Co.  v.  Dun- 
Torce  act  to  vary  marriage  settle-  ham,  46  Conn.  79;  ^tna  Life  Ins. 
ment  see  Storer  v.  Storer,  6  Rep.  Co.  v.  Mason,  14  E.  I.  588. 

.(1894),  653,  and  cases  cited;  Hipwell 
63 


994  DECREES    OF   DIVOECE.  [§  10291- 

Bat  it  is  held  that,  if  the  policy  was  valid  in  its  inception,, 
the  cessation  of  the  insurable  interest  by  divorce  does  not 
make  the  contract  void  as  a  wager  policy.^  Insurance  in 
mutual  benefit  societies  formed  for  the  purpose  ofgissisting: 
widows  and  children  of  deceased  members  does  not  vest  in^ 
the  wife  and  is  not  a  chose  in  action.''  Her  interest  in  sucbi 
insurance  is  like  the  right  to  dower,  conditioned  on  her  be> 
coming  thp  widow  of  the  husband.  During  the  life  of  the 
husband  the  wife's  interest  in  this  insurance  is  non^vested^ 
and  inchoate.  If,  before  the  death  of  the  husband,  the  mar- 
riage is  dissolved  by  divorce,  the  wife  loses  all  claim  to  the 
insurance,  for  she  cannot  become  the  widow  of  the  insured. 
The  beneficiary  association  must  comply  with  the  statute- 
under  which  it  was  organized ;  and  if  it  requires  the  money 
to  be  paid  to  the  widow  of  deceased,  or  to  families  of  de-^ 
ceased  members  or  their  heirs,  the  divorced  wife^is  not  en- 
titled to  any  part  of  the  fund.' 

§  1029.  Name  of  wife  after  divorce. —  After  marriage 
custom  confers  the  husband's  surname  upon  the  wife.  This 
name  she  may  retain  through  life,  although  the  marriage  is- 
subsequently  dissolved  by  death  or  divorce.  If  the  marriage 
is  annulled  and  declared  void  from  the  beginning,  the  sup- 
posed or  reputed  wife  will  have  no  right  to  the  surname 
after  such  decree.  A  dissolution  of  the  marriage  does  not 
affect  the  right  of  the  wife  to  resume  her  maiden  name,  as- 
at  common  law  a  person  may  assume  any  name  which  will 
not  interfere  with  the  rights  of  others. 

In  an  action  for  damages  for  breach  of  marriage  promise 
a  divorced  woman  was  permitted  to  sue  in  her  maiden  name. 
"  The  plaintiff,"  it  was  said,  "  had  procured  a  divorce  from, 
a  bad  husband  and  judiciously  dropped  his  bad  name  and 
resumed  that  given  by  her  parents.  It  was  in  effect  the  re- 
sumption of  her  original  name  by  operation  of  law,  rather 

iConn.  Mutual  Life  Ins.  Ca  v.  » Tyler  w.  Odd  Fellows,  145  Mass. 

Schaefer,  94  U.  S.  457.  134;  Am.  Legion  of  Honors  Smithr 

2  Johnson  v.  Van  Epps,  14  HL  45  N.  J.  Eq.  466. 
Ap.  201. 


§  1030.]  DEOEEES   OF   DIVOEOE.  995 

than  choice  or  fancy.  ...  Its  dissolution  restored  her 
former  rights,  one  of  which  was  the  liberty  of  bearing  her 
family  name,  and  this  privilege  she  has  seen  fit  to  exercise."  ' 
It  is  clear  that  a  divorced  woman  may  at  common  law  as- 
sume her  maiden  name.*  It  is  also  held  that  she  may  assume 
a  different  name  without  divorce.'  The  power  to  change 
the  wife's  name  when  the  decree  is  rendered  is  sometimes 
regulated  by  statute.* 

§  1030.  Curtesy  and  husband's  interest  in  the  wife's 
property  after  divorce. — An  estate  by  curtesy  is  the  inter- 
est to  which  the  husband  is  entitled  upon  the  death  of  the 
wife,  in  the  lands  or  tenements  of  which  she  was  seized  in 
possession,  in  fee-simple,  or  in  tail,  during  their  coverture,, 
provided  they  had  lawful  issue  born  alive  which  might  by 
possibility  inherit  the  estate  as  heir  to  the  wife.  It  is  said 
that  when  a  man  marries  a  woman  seized  of  an  inheritance,, 
and  has  by  her  issue  born  alive,  capable  of  inheriting  the 
estate,  on  her  death  he  holds  the  lands  for  life,  "  as  tenant  by 
the  curtesy  of  England."  The  requisites  to  this  estate  are  a 
legal  marriage,  an  actual  seisin  or  possession  in  the  wife, 
issue  born  of  the  marriage,  and  the  death  of  the  wife.  Dur- 
ing the  life  of  the  wife  the  estate  is  initiate  and  non-vested. 
If,  before  her  death,  the  marriage  is  dissolved,  the  estate 
ceases,  under  the  rule  that  all  non-vested  interests  of  the 
married  parties  cease  upon  the  dissolution  of  the  marriage.* 

1  Rich  V.  Mayer,  7  N.  Y.  Supp.  69.  325;  Barber  v.  Root,  10  Mass.  360; 

2  Fendall  v.  Goldsmid,  3  P.  D.  263.  Renwick  v.  Renwick,  10  Paige,  420 ; 

3  Clark  V.  Clark,  19  Kan.  523,  cit-  Schuster  v.  Schuster,  93  Mo.  438,  6 
ing  In  re  Smock,  3  Hilt.  (N.  Y.)  S.  W.  359;  Cull  u  Brown,  5  Blackf. 
566;  Cooper  v.  Burr,  45  Barb.  9;  309;  Moran  r;.  Somes,  154  Mass.  300, 
Goodenow  v.  Tappan,  1  O.  61.  At  28  N.  E.  153;  Wood.  v.  Simons,  20 
common  law  a  man  may  rightfully  Mo.  363;  Highley  v.  Allen,  3  Mo. 
change  his  name,  and  is  bound  by  Ap.  521;  Dunham  v.  Dunham,  128 
contract  in  his  adopted  or  reputed  Mass.  34;  Arrington  v.  Arrington, 
name.  Linton  v.  Bank,  10  Fed.  102  N.  C.  491;  Boykin  v.  Rain,  38 
894.  Ala.  332;  Starr  v.  Pease,  8  Conn. 

*  Converse  v.  Converse,  9  Rich.    541;  Howey  v.  Goings,  13  111.  95; 

Eq.  535-570.  Hinsman  v.  Bush,  84  Ala.  368;  Por- 

5  Wheeler  v.  Hotchkiss,  10  Conn,    ter  v.  Porter,  27  Gratt.  599;  Blaker 


990 


DECEESS    OF   DIVOKCE. 


[§  1030. 


The  husband's  title  results  from  the  marriage,  and  his  title 
ceases  with  a  dissolution  of  the  marriage  "  as  certainly  and 
as  effectually  as  it  would  have  terminated  by  his  death." ' 
If  the  husband  survives  the  wife  after  divorce  against  either 
party,  he  is  not  a  widower,  and  is  not  entitled  to  any  part  of 
her  estate  unless  by  virtue  of  some  statute  changing  the 
common  law  and  giving  him  that  right.  So  far  as  her  es- 
tate is  concerned,  a  divorce  operates  as  the  death  of  the  hus- 
band.^ This  rule  is  not  changed  by  the  fact  that  children 
have  been  born  and  the  husband  is  liable  for  their  support. 
"  The  death  of  the  wife,"  it  is  said,  "  is  one  of  the  four  es- 
sential requisites  to  constitute  a  tenancy  by  the  curtesy." 
And  if  she  obtains  a  divorce  before  her  death  the  estate 
does  not  exist.*  After  divorce  the  wife  is  entitled  to  the 
immediate  possession  of  her  property.* 

But  this  rule  is  sometimes  changed  by  statutes  which 


V.  Cooper,  7  S.  &  R.  500;  McGrath 
V.  Penn.  Life  Ins.  Co.,  8  Phila.  113; 
Hays  V.  Sanderson,  7  Bush,  489; 
Townsend  v.  Griffin,  4  Harring. 
(Pel.)  440;  Oldham  v.  Henderson, 
5  Dana,  254;  Burt  v.  Hurlburt,  16 
Vt.  292;  Mattock  v.  Stearns,  9  Vt. 
336;  Wright  v.  Wright,  3  Md.  439; 
Clark  V.  Slaughter,  38  Miss.  64: 
Davis  V.  Davis,  68  N.  C.  180;  Sellars 
V.  Davis,  4  Yerg.  503. 

A  husband  v?ho  acquires  prop- 
erty as  trustee  for  the  wife  has  no 
interest  in  her  real  and  personal 
property  so  held  if  the  wife  ob- 
tains a  diyorce.  Schoch's  Appeal, 
33  Pa.  351. 

Where  a  wife  obtained  a  divorce 
and  afterwards  inherited  slaves, 
the  husband  has  no  interest  in 
them.  After  divorce  she  is  en- 
titled to  all  choses  in  action  not 
previously  reduced  into  possession 
by  him  as  if  she  survived  him. 
Wood  V.  Simmons,  30  Mo.  363. 


Where  a  husband  has  a  right 
under  a  statute  to  the  use  of  slaves 
held  by  the  wife,  such  right  is  ter- 
minated by  a  divorce  obtained  by 
the  wife.  Suchright,  being  founded 
on  the  continuance  of  the  marriage 
relation,  ceases  when  the  marriage 
is  dissolved  by  death.  Clark  v. 
Slaughter,  38  Vt.  64; 

By  a  decree  in  equity  the  hus- 
band and  wife  were  to  receive  cer- 
tain proportions  of  a  fund  arising 
from, the  sale  of  land  belonging  to 
the  wife.  The  payments  were  to 
be  received  during  their  "joinf 
lives."  JJeZd,  that  the  husband  was 
not  entitled  to  any  payments  after 
the  wife  obtained  a  divorce.  High- 
ley  V.  Allen,  3  Mo.  Ap.  531. 

1  Hayes  v.  Sanderson,  7  Bush,  489. 

2  l^tarr  v.  Pease,  8  Conn.  541. 

3  Wheeler  v.  Hotohkiss,  10  Conn. 
235. 

*  Dunham  v.  Dunham,  138  Mass. 
34. 


§  1031. J  DECREES    OF   DIVOECE.  997 

either  expressly  or  by  inference  preserve  the  right  of  curt- 
esy after  a  divorce  for  the  wife's  fault.  In  Illinois  this 
right  is  held  to  be  preserved  by  a  statute  providing  that  a 
wife  shall  not  forfeit  dower  unless  the  divorce  be  for  her 
fault,  and  that  "  when  a  divorce  is  obtained  for  the  fault 
and  misconduct  of  the  husband,  he  shall  lose  his  right  to  be 
tenant  by  the  curtesy  in  the  wife's  lands,  and  also  any  es- 
tate granted  therein  by  the  laws  of  this  state."  '  This  con- 
struction was  said  to  be  in  conformity  to  the  rule  E.q)res- 
sio  unius  exclusio  alterius.  The  legislature,  by  providing  a 
forfeiture  of  the  estate  on  divorce  for  his  fault,  intended  to 
preserve  such  estate  in  all  other  cases.^ 

§  1031.  Uoniestead. —  A  homestead  is  a  family  residence. 
As  a  law  term  the  word  denotes  a  family  residence  "owned, 
occupied,  dedicated,  limited,  exempted  and  restrained  in 
alienability  as  the  statute  prescribes."'  The  wife  has  an 
interest  in  the  homestead,  but  it  is  not  a  vested  interest 
which  will  continue  after  a  dissolution  of  the  marriage. 
During  the  life  of  her  husband  and  the  continuance  of  the 
marriage,  she  has.  a  right  to  possession  of  the  property  with 
her  husband.  If  she  is  guilty  of  misconduct  which  is  a  cause 
for  divorce,  the  husband  may  expel  her  from  the  residence. 
She  has  no  right  to  remain  at  the  homestead  if  the  husband 
establishes  the  home  elsewhere.  Since  the  homestead  estate 
is  the  creature  of  statute,  and  the  family  have  rights  in  it, 
these  rights  cannot  be  divested  in  any  other  way  than  au- 
thorized by  statute.  Generally  the  husband  is  restrained 
from  conveying  the  homestead  without  the  consent  of  the 
wife.  She  cannot  convey  or  incumber  the  homestead  with- 
out his  consent.  It  will  be  seen,  therefore,  that  the  interest 
of  the  wife  in  the  homestead  is  a  mere  right  of  possession 
and  immunity  from  alienation  without  her  consent.  It  is 
not  an  estate  or  title,  or  even  an  inchoate  interest  that  may 

iMeacham  v.  Bunting  (111.),  41  cases  this  construction  is  errone- 

N.  E.  178.  ous.    See  Wood  v.  Wood  in  §  102(>. 

2  If  the  legislature  believed  the  3  Waples,  Homestead  and  Exemp- 

estate  would  continue  in  all  other  tion. 


'Q9i  DEOKEES   OF  DIVOEOE.  [§  1031. 

ripen  into  an  estate,  and  therefore  is  not  a  vested  interest. 
When  the  marriage  is  dissolved,  the  wife  has  no  interest  in, 
the  homestead,  the  title  to  which  is  in  the  husband's  name.' 
If  the  title  to  the  homestead  is  in'  the  wife  when  the  divorce 
-is  granted,  the  husband  has  no  title  or  right  to  possession  of 
the  homestead  after  the  marriage  is  dissolved.^  And  the 
wife  can  convey  the  title  to  the  same  without  the  husband 
joining  in  the  deed.' 

If  the  decree  is  sUen't  as  to  the  title  of  the  homestead  the 
presumption  is  that  the  court  in  adjusting  the  property 
rights  of  the  parties  permitted  the  title '  to  remain  undis- 
turbed. The  holder  of  the  legal  title  can  convey  the  prop- 
erty as  if  single ;  for  he  has  no  wife  after  divorce,  and  there 
is  no  dower  right  to  be  released.  The  law  which  requires 
both  the  husband  and  the  wife  to  join  in  the  conveyance  of 
the  homestead  does  not  apply  after  the  dissolution  of  the 
marriage,  because  the  parties  ceased  to  be  husband  and 
wife.* 

This  doctrine,  that  after  a  dissolution  of  the  marriage  the 
holder  of  the  legal  title  can  convey  the  same  free  from  all 
claims  of  the  other  party,  is  directly  affirmed  in  a  recent 
case.  The  wife  procured  a  decree  of  divorce  awarding  her 
the  custody  of  the  children  and  alimony  for  the  support  of 
herself  and  children.  The  husband  had  the  legal  title  to 
the  homestead,  having  received  a  patent  from  the  govern- 
ment under  the  federal  homestead  law.  After  divorce  the 
husband  conveyed  the  homestead  to  a  hona  fide  purchaser 
for  value  who  had  notice  of  the  divorce  .proceedings.  The 
wife,  although  living  elsewhere,  had  not  abandoned  the 
homestead.  After  the  conveyance  of  her  husband  she  re- 
turned and  claimed  the  property  as  her  homestead,  contend- 
ing that  when  the  decree  was  rendered,  awarding  her  the 

iBums   V.  Lewis,    86  Ga.    591;  s  Burkett  r.  Burkett,  78  Cal.  310. 

Stahl  u  Stahl,  114  111.  375;  Rendle-  ^The  decree  a  mensa  does  not 

man  v.  Rendleman,  118  111.  257.  have    this    efifect.      Castlebury  v. 

'  Dunham  v.  Dunham,  128  Mass.  Maynard,  95  N.  C.  381. 
34 


^  1031.]  DECKEES   OF   DITOECE.  999 

-custody  of  the  children,  she  became  the  head  of  the  family, 
and  that  she  did  not,  by  obtaining  a  divorce  for  the  hus- 
band's misconduct,  lose  her  homestead  right.  But  it  was  held 
that  the  statute  permitting  the  court  to  assign  the  home- 
•stead  to  the  Innocent  party  did  not  thereby  convey  the 
title,  but  expressly  provided  that  the  court  might  dispose  of 
it  by  decree.  "  We  deem  it  better  for  the  innocent  party," 
said  the  court,  "  better  for  the  fee-owner,  better  as  a  rule  of 
property,  that  the  interest  of  the  respective  parties  in  the 
Jiomestead  should  be  fixed  by  the  decree  in  the  divorce  pro- 
ceeding ;  and,  when  that  decree  is  silent,  the  homestead,  like 
.all  other  realty,  must  remain  in  possession  of  the  party  hold- 
ing the  record  title,  discharged  of  all  homestead  rights  and 
claims  of  the  other  party ;  and  this  we  deem  the  result  of 
the  better  authorities."  ^  If  the  homestead  is  community 
property,  the  parties  become  tenants  in  common  after  divorce 
if  the  decree  is  silent  as  to  such  property.  Each  may  then 
■convey  whatever  interest  he  or  she  has  in  the  community 
property .2  If  the  divorced  husband  convey  the  homeistead 
•by  deed  of  trust,  the  creditor  is  entitled  to  a  partition  to  re- 
cover the  husband's  portion  of  the  property,  but  the  wife's 
interest  is  exempt.'  If  the  homestead  is  held  by  the  hus- 
band and  wife  by  entireties,  the  wife  may  plead  her  exemp- 
tion against  her  husband's  creditors  where  the  homestead 
was  assigned  to  her  after  divorce.* 

But  it  seems  clear  that  the  divorced  wife,  although  she 
has  no  title  in  the  homestead  which  is  in  her  husband's 
name,  may  claim  the  property  as  exempt  from  the  claims 
<oi  her  husband's  creditors  if  she  remains  upon  the  property 
with  the  children.  The  husband  is  still  liable  for  the  sup- 
port of  the  children,  and  his  property  is  exempt  so  long  as 

i.Eosholt  V.  Mehios.  3  N.  D.  513,  Chalfant,  47  CaL  433;   Gimmy  v. 

57  N.  W.  783.  Doane,  23  Cal.  638. 

2SimpSon«.  Simpson,  80  Cal.  237;  SKirkwood  v.  Domnau,  80  Tex. 

Gnipe  V.  Byers,  73  Cal.  371;  Stock-  643,  16  S.  W.  428;  Trigg  v.  Trigg 

ton  V.  Knock,  73  CaL  435;  Lowell  (Tex.),  18  S.  W.  818. 

iv.  Lowell,  55  CaL  316;  Shoemake  v.  *  Jackson  v,  Shelton,  89  Tenn.  83, 

16  S.  W.  143. 


1000  DECEEES    OF   DIVOECB.  [§  1031. 

he  must  furnish  such  support.  His  family  still  reside  on  the 
homestead,  and  its  exempt  character  is  not  changed  by  the 
divorce  or  the  subsequent  desertion  of  the  family  by  the  hus- 
band. The  conservation  of  the  home,  the  object  of  the  home- 
stead IsLvr,  requires  that  the  exemption  continue.'  Where 
the  family  remain  upon  the  homestead,  and  the  wife  is- 
awarded  the  custody  of  the  children,  the  homestead  is  ex- 
empt. "  The  spirit  and  policy  of  the  homestead  act  regard 
.  .  .  (the  divorced  wife)  as  a  widow  and  the  ,head  of  a 
family."  ^ 

The  homestead  referred  to  is  the  real  estate  occupied  by 
the  family  and'  protected  by  law  from  sale  by  execution. 
It  is  intended  as  a  home  for  the  family,  for  the  children  as 
well  as  the  wife.  If  the  marriage. is  dissolved,  it  may  con- 
tinue to  be  the  home  of  the  husband  and  the  children,  and 
then  it  should  be  protected  against  all  claims,  even  from  sale- 
by  execution  to  pay  a  decree  for  alimony.  If  the  custody 
of  the  children  is  awarded  to  the  wife,  and  she  resides  else- 
where, the  homestead  is  stiU  exempt  from  'her  decree  for 
alimony,  because  the  husband  is  liable  for  the  support  of 
the  children,  and  should  be  allowed  to  retain  the  homestead 
for  this  purpose.  The  husband's  right  to  the  homestead  is 
not  destroyed  by  divorce  in  such  case,  but  continues  the 
same  as  though  the  wife  had  died  or  deserted,  leaving  the 
children  under  his  care.  He  remains  the  head  of  a  family 
within  the  meaning  and  spirit  of  the  homestead  law.'  The 
liability  of  the  homestead,  in  such  case,  must  be  fixed  by  the 
decree  of  divorce.  If  the  wife  receives  a  general  judgment 
for  ahmony  and  the  same  is  not  declared  a  lien  on  the  home- 
stead, she  cannot  have  the  homestead  sold  under  her  judg- 
ment.^   In  New  Hampshire  the  homestead  is  said  to  belong- 

1  Blandy  ?;.  Asher,  73  Mo.  37.  368;   Woods  v.  Davis,  34  la.  364;- 

2  Van  Zant  v.  Van  Zaflt,  33  111.  Hemenway  v.  "Wood,  53  la.  81. 
536;  Bonnell  v.  Smith,  53  111.  375;  ^Byers  v.  Byers,  31  la.  268;  Phil-^ 
Sellon  v.  Eeed,  5  Biss.  135.  brick    v.    Andrews,    8    Wash.    7p 

3  Biffle  V.  PuUman,  114  Mo.  50,  31  Hemenway  v.  Wood,  53  la.  31. 
S.  W.  450;  Byers  v.  Byers,  31  la. 


§  1031.J  DECREES    OF  DIYOECE.  1001 

to  the  wife  and  children;  and  in  case  of  divorce  obtained 
by  the  wife,  the  husband  is  barred  of  the  right  of  home- 
stead, and  the  property  may  be  sold  under  her  decree  for 
alimony,  if  the  children  do  not  reside  upon  the  property  witk 
their  father.^  Where  there  are  no  children  the  husband 
cannot  claim  the  homestead  exemption  against  an  execution 
on  a  general  decree  for  alimony.  The  exemption  law,  in 
such  case,  has  no  more  application  than  it  would  have  in  an 
ordinary  suit  in  partition.^ 

If  the  title  to  the  homestead  is  in  the  husband's  name,  the 
court,  when  granting  a  decree  of  divorce,  may  decree  the  pos- 
session to  the  wife  and  require  the  husband  to  vacate  it. 
While  it  is  true  that  the  ^vif  e  has  no  title  and  no  interest  in 
the  homestead  except  that  derived  from  marriage,  it  does 
not  follow  that  a  decree  should  deprive  her  of  all  support. 
If  a  decree  will  extinguish  all  her  interest  in  the  property 
and  leave  the  husband  the  absolute  owner,  this  is  but  another 
reason  why  her  interests  should  be  protected  by  the  decree. 
The  rights  to  the  homestead  are  equal.  Before  divorce 
neither  party  could  sell  or  incumber  the  property  without 
the  consent  of  the  other.  Both  are  entitled  to  possession,. 
and  either  may  claim  the  exemption.  But  a  decree  of  di- 
vorce justifies  the  parties  in  living  apart,  and  the  law  does 
not  intend  that  both  shall  have  possession  of  the  homestead 
after  the  marriage  is  dissolved.  The  court  may  award  the 
homestead  to  the  wife  if  the  statute  permits  a  distribution 
of  the  property.'  Or  if  the  circumstances  require  a  different 
settlement,  the  court  may  decree  possession  to  the  husband 
subject  to  the  lien  of  a  judgment  for  alimony.*  Or  the  court 
may  allow  the  wife  to  have  possession  of  the  homestead  for 
life,'^  or  for  a  period  of  years.^ 

•  Wiggin  V.  Buzzell,  58  N.  H.  329.  *  Blankenship  v.  Blankenship,  1^ 

Sea,  also,  Heaton  v.  Sawyer,  60  Vt.  Kan.  159. 

495;  Whiteman  V.  Field,  58  Vt.  554.  sxiemann  v.  Tiemann,  84  Tex. 

-'Mahoney  v.  Mahoney   (Minn.),  533. 

61  N.  W.  334.  6  Where  the  homestead  was  as- 

3  Brandon  v.  Brandon,  14  Kan.  signed  to  the  innocent  party  for  a 

343;  I^eaoh  v.  Leach,  46  Kan.  784.  period  of  ten  years,  such  ei^tate  ter- 


1002  DECEEES    OF   DIVOKOE.  [§§  1032,  1033. 

§  1033.  Federal  homestead. —  The  public  lands  of  our 
nation  are  granted  by  act  of  congress  to  actual  settlers  upon 
certain  conditions,  such  as  residing  upon  and  cultivating  the 
land  fot  a  period  of  years.  During  the  time  of.  such  occu- 
pancy the  husband  has  no  vested  interest  in  the  land,  but  a 
mere  right  to  maintain  possession  until  he  can  comply  with 
the  law.  E"o  title  passes  to  the  husband  until  he  complies 
with  the  law.  If  before  the  title  has  passed  to  the  husband 
the  marriage  is  dissolved,  the  wife  loses  all  interest  in  the 
homestead.^ 

§  1033.  Effect  of  decree  obtained  in  another  state  on 
«onstr active  service. —  Where  the  husband  obtains  a  decree 
of  divorce  in  another  state  upon  constructive  service,  and 
the  wife  did  not  appear  in  the  proceeding,  the  decree  so  ob- 
tained is  valid  so  far  as  it  affects  his  status,  and  the  neces- 
sary conclusion  is  that,  as  the  husband  has  no  wife,  the  wife 
ceases  to  have  a  husband.  The  marriage  relation  is  dissolved, 
and  the  wife  loses  all  her  interest  in  his  property,  including 
her  dower.^  This  is  the  result  of  the  two  well-established 
principles  of  law,  that  each  state  can  reg'ulate  the  status  of 
its  own  citizens,  and  that  the  marriage  relation  is  dissolved 
when  one  party  is  lawfully  divorced.  The  decree  of  another 
state  is  a  bar  to  dower  because  it  dissolved  the  marriage  and 
terminated  all  non-vested  interests  depending  upon  the  cov- 
erture.' 

It  is  to  be  regretted  that  the  law  should,  by  operation  of 
its  fixed  rules,  place  the  wife  in  such  a  condition  that  she  is 
condemned  without  a  hearing,  found  guilty  without  a  trial, 

minates  upon  the  death  of  the  party  ^HoqjJ  ^_  Hood,  110  Mass.  463; 

within  the  period,  as  the  court  has  Marvin  v.  Marvin,  59  la.  699;  Boyles 

no  power  to  assign  the  homestead  v.  Latham,  61  la.   174;   Gould  v. 

if  or  a  greater  period  than  the  Ufe  of  Crow,  47  Mo.  200;   Rendleman  v. 

the  party.    Neary  v.  Godfrey,  103  Rendleman,  118  ILL   260;   Arring- 

iCaL  388,  36  P.  655.  ton  v.  Arrington,   102  N.  G.  491; 

1  Maynard  v.  Hill,  135  U.  S.  190,  Chapman  v.  Chapman,  48  Kan.  636, 

S  Supt.  Ct  E.  733, 2  Wash.  Ter.  321 ;  29  P.  1071. 

McSorley  v.  Hill,  2  Wash.  St.  688,  '  Hawkins  v.  Ragsdale,  80  Ky. 

27  P.  553.  353;  Gould  v.  Crow,  57  Mo.  300, 


§  1033.]  DEOEEES   OF  DIVOKOE.  1003 

and  deprived  of  her  property  without  a  day  in  court.  But 
the  only  avenue  of  escape  is  to  provide  by  appropriate  leg- 
islation that  such  decree  shall  not  be  a  bar  to  the  wife^s  suit 
for  dower,  or  by  permitting  a  subsequent  suit  for  divorce 
after  a  decree  has  been  obtained  in  another  state.^ 

To  relieve  the  wife  from  the  harshness  of  this  rule  the 
courts  have  sometimes  refused  to  recognize  an  ex  parte  de- 
cree of  divorce  rendered  in  another  state  as  a  bar  to  the 
wife's  suit  for  dower.  Yarious  excuses  and  evasions  have 
been  resorted  to,  some  of  them  not  very  creditable  to  the 
courts.  In  one  case  it  was  said,  "  By  our  law,  when  a  di- 
vorce is  decreed,  both  parties  are  absolved  from  the  obliga- 
tions of  the  marriage  contract.  In  looking  into  the  decree 
in  the  present  case,  however,  I  find  that  although  John 
Mansfield  is  divorced  from  his  wife  she  is  not,  in  terms,  re- 
leased from  any  of  her  obligations  to  him.  Tor  aught  that 
appears  in  the  decree  she  still  continued  to  bo  his  wife."  ^ 
It  is  submitted  that  this  is  mere  evasion ;  as  the  court  must 
have  known  that  a  decree  need  not  recite  aU  the  conse- 
quences which  must  flow  from  it.  This  case  is  weak  and 
unsound,  and  has  since  been  repudiated  by  allowing  the 
wife  to  recover  do^ver  on  a  decree  of  another,  state  under  a 
provision  of  statute.'  In  a  recent  case  in  the  same  state  the 
decree  of  another  state  was  held  void  because  it  did  not  ap- 
pear to  have  been  granted  for  causes  which  are  causes  for 
divorce  in  Ohio.  "  But  if  it  were  otherwise,"  said  the  court, 
"  as  she  had  no  opportunity  to  defend,  all  that  can  be 
claimed  for  that  decree  is  that  it  dissolved  the  marriage  re- 
lation between  the  parties,  and  restored  the  husband  to  the 
status  of  an  unmarried  man.  This  the  court  could  do.  But, 
as  it  had  no  jurisdiction  of  the  person  of  the  wife,  it  was 
not  competent  to  the  Indiana  court  to  affect  such  rights  as 
she  had  acquired  in  the  property  of  the  husband  under  the 

1  See    proceedings    in   Van   In-       ^  Mansfield  v.  Mclntire,  10  Ohio, 
wagen  v.  Van  Inwageu,  86  Mich.    31. 
333,  49  N.  W.  154.  » McGiU  v.  Deming,  44  O.  St.  645. 


lOOi  DECKEES    OP   DI\"OECE.  [§  1033'v. 

laws  of  this  state."  ^  This  doctrine  is  illogical  and  unsound. 
Admitting  that  such  decree  dissolved  the  marriage  relation, 
it  must  follow  that  the  inchoate  right  of  dower  terminated 
with  the  relation  upon  which  it  depends. 

The  courts  of  Pennsylvania  hold  that  no  interstate  comity 
requires  that  an  ex  parte  decree  of  divorce  obtained  in  an- 
other state  shall  be  a  bar  to  dower,  because  the  rights  of  the 
wife  and  of  the  state  have  not  been  adjudicated.  In  one 
case  the  court  said  that,  "  By  marriage  the  wife  has  claims 
upon  the  husband's  property  here,  and  the  law  of  Pennsyl- 
vania has  claims  to  apply  it  to  her  support,  as  one  of  its 
married  citizens.  On  what  principle  of  right  or  of  comity 
shall  the  decree  of  a  distant  tribunal,  never  having  acquired 
jurisdiction  from  domicile,  or  otherwise,  over  her,  cut  loose 
those  claims  and  enable  Pennsylvania  from  taking  the  prop- 
erty of  the  husband  within  her  borders,  to  lift  the  burden 
of  support  from  the  public  shoulders ;  or  from  rendering  to 
the  wife  judicially  that  right  which  she  has  in  her  husband's 
property,  and  which  he  neither  carried  away  with  him  nor 
defeated  by  his  removal  ?  To  admit  the  greater  right  of  the 
foreign  decree  is  to  derogate  from  our  own  sovereignty  and 
to  withdraw  from  one  of  our  own  citizens  the  protection 
due  her.  ISTo  correct  principle  of  interstate  law  cSn  de- 
mand this."  2  In  New  York  the  decree  of  another  state 
rendered  by  a  court  having  jurisdiction  over  both  parties, 
and  on  the  ground  of  the  wife's  adultery,  will  probably  bar 
dower,  although  this  point  has  not  been  determined.  It  is 
held  that  the  effect  which  a  decree  of  divorce,  granted  in 
another  state,  has  upon  lands  in.  New  York  is  determined 
by  its  own  laws  and  not  by  the  laws  of  the  state  vrhere  the 
decree  was  rendered,  and  that  an  absolute  divorce  rendered 
in  another  state  for  desertion  would  not  bar  dower  in  New 
York.  The  statute  of  this  state  provides  that  "  In  case  of 
divorce  dissolving  the  marriage  contract  for  the  miscon- 
duct of  the  wife,  she  shall  not  be  endowed."     The  miscon- 

1  Doerr  v.  Forsythe,  50  Ohio,  736,        ^Colvin  v.  Reed,  55  Pa.  375.    See, 
33  N.  E.  1055.  also,  Reel  v.  Elder,  65  Pa.  808. 


§  1033.],  DECEEES   OF  DIVOEOE.  1006 

duct  referred  to  is  held  to  be  adultery,  as  this  is  the  only 
cause  for  absolute  divorce.  Accordingly  it  is  held  that 
where  the  husband  obtains  a  decree  in  another  state  dissolv- 
ing the  marriage  on  the  ground  of  desertion,  such  decree, 
though  valid  in  every  respect,  will  not  deprive  the  wife  of 
dower.i 

In  South  Carolina  it  is  held  that  marriage  is  a  contract 
between  the  husband  and  wife,  and  a  court  has  no  jurisdic- 
tion to  annul  the  contract  or  dissolve  the  marriage  without 
jurisdiction  over  both  parties.  A  decree  of  another  state, 
•based  upon  constructive  service,  is  therefore  invalid,  and 
will  not  bar  dower  in  lands  situated  in  that  state.^ 

After  the  wife  has  recovered  a  diA'^orce  in  one  state  she 
may  recover  dower  in  another  state  where  it  is  provided 
by  statute  that  upon  the  dissolution  of  the  marriage  the 
wife  shall  be  entitled  to  dower  as  though  the  husband  were 
dead.  Such  statute  does  not  require  the  divorce  to  be  granted 
within  the  state.  This  was  decided  in  an  early  case  in 
Maine.  The  husband  deserted  his  wife  in  Maine,  and  went 
to  North  Carolina,  where  he  committed  adultery.  The 
wife  removed  to  Ehode  Island,  and  obtained  a  decree  dis- 
solving the  marriage  on  account  of  his  adultery,  he  hav- 
ing been  personally  cited  to  appear.  Such  divorce  was  held 
valid  in  Maine,  and  entitled  her  to  dower  in  his  lands. 
The  court  said :  "  If  the  divorce  decreed  in  Rhode  Island 
is  valid  here,  the  remaining  question  is  Avhether  the  wife 
was  entitled  to  dower  in  any  estate  of  inheritance  of  which 
the  husband  was  seized  during  coverture.  The  statute  al- 
lows it  in  the  lands  of  the  husband  where  a  divorce  is  de- 

1  Van  Cleaf  v.  Burns,  118  N.  Y.  "  adultery  "  would  have  been  used 

549,  33  N.  E.  881,  reversing  43  Hun,  instead  of  "misconduct." 
461 ;  on  second  appeal,  Van  Cleaf        ^  McCreery  v.  Davis  (S.  C),  33  8. 

V.  Burns,  133  N.  Y.  540,  80  K.  E.  661,  E.   178.    This   opinion    announces 

reversing  16  N.  Y.  Supp.  667.    It  doctrines  which  have   been  obso- 

is  submitted  that  this  opinion  is  lete  for  nearly  a  century.    It  does 

erroneous  and    unsound.     If  the  not  appear  that  the  cases  cited  iu 

statute   referred    to  decrees    ren-  this   section  were   considered  by 

dered    in    New   York,    the    word  the  court. 


1006  DECKEES    OF   DIVOECE.  [§  1033, 

creed  for  the  cause  of  adultery  committed  by  the  husband, 
to  be  assigned  ia  the  same  manner  as  though  he  Avere  dead. 
The  language  is  general,  and  is  not  limited  to  divorces  within 
the  state."  ^  This  interpretation  was  followed  in  Ohio  in  a 
similar  case.  There  was  nothing  in  the  statute  incompati- 
ble with  extending  its  provisions  to  decrees  of  another  state, 
and  nothing  to  indicate  that  it  was  the  intention  of  the  leg- 
islature to  restrict  its  provisions  to  divorce  by  local  courts^ 
only.'  It  is  clear  that  the  foreign  divorce  wiU  be  given  the- 
same  effect  as  the  domestic  divorce,  and  not  the  effect  which 
the  foreign  divorce  had  in  the  state  where  it  was  rendered. 
The  law  of  the  state  in  which  the  land  is  situated  will  con- 
trol as  to  the  effect  of  the  foreign  divorce  upon  dower.' 

1  Harding   v.    Alden,  9   GreenL  u  Mclntyre,  10  O.  St.  27;  Hawkins 
(Me.)  140.  V.  Eagsdale,  80  Ky.  353. 

2  MoGill  V.  Deming,  44  O.  645, 11  8  Thorns  v.  King  (Tenn.),  31  S.  W. 
N.  E.  118,  distinguishing  Mansfield  983. 


ANNULLING  DECREE  FOR  FRAUD. 


1050.  In  general. 

1051.  False   or  insnflBcient   evi- 

dence. 

1053.  Fraud  in  concealing  pro- 
ceedings and  preventing 
defense. 

1053.  Whether  decree  vacated 
after  one  party  has  mar- 
ried. 


§  1054.  The  death  of  one  of  the  di- 
vorced parties  is  not  a 
bar. 

1055.  When  parties  are  bound  by 

a  decree  obtained  by  col- 
lusion. 

1056.  Delay  and  estoppel 

1057.  Procedure  in  vacating  de- 

cree obtained  by  fraud. 


§1050.  In  general. —  The  maxim  that  "'fraud  vitiates 
everything  "  is  applicable  to  decrees  of  divorce.  There  are, 
however,  some  difficulties  in  the  vi^ay  that  may  prevent  the 
court  from  vacating  a  decree  of  divorce.  A  judgment  which 
afifects  but  two  parties  maybe  set  aside  without  serious  con- 
sequences to  any  one  but  the  plaintifif ;  but  if  a  decree  of 
divorce  is  vacated  innocent  parties  may  be  wronged,  and  th& 
marriage  relation  as  a  public  institution  wUl  be  disturbed. 
These  considerations  once  compelled  a  court  to  hold,  though 
reluctantly,  that  "  sound  public  policy,  in  this  class  of  cases, 
forbids  us  from  setting  aside  a  decree  of  divorce,"  although 
an  original  biU  was  filed  at  a  subsequent  term  alleging 
fraud  and  false  testimony.'  But  such  considerations  are 
outweighed  by  other  considerations  of  public  policy.  There 
is  much  greater  danger  of  fraud  in  divorce  cases  than  in 
other  cases,  and  experience  has  shown  that  the  tempta- 
tion is  great  and  fraudulent  decrees  are  frequent.     Public 


1  Parish  v.  Parish,  9  O.  St.  534 
This  decision  is  under  a  statute 
providing  that  "  no  appeal  shall  be 
obtained  from  the  decree,  but  the 
same'  shall  be  final  and   conclu- 


sive.'' The  opinion  has  been  char- 
acterized as  an  apology  "  in  behalf 
of  the  legislature  for  enacting 
such  an  immoral  statute." 


1008  AIJXULLING   DECEEE    FOE   FEAUD.  [§  1050. 

policy  requires  that,  as  a  general  rule,  the  courts  may  pro- 
tect themselves  by  vacating  decrees  obtained  by  fraud,  al- 
though the  rights  of  innocent  parties  may  sometimes  be 
sacrificed.  It  is  essential  to  the  due  administration  of  jus- 
tice that  the  courts  may  protect  themselves  and  the  parties 
before  them  from  fraud  and  imposition.  It  is,  however,  a 
power  which  must  be  exercised  with  great  discretion  and  only 
upon  thorough  investigation  of  the  facts.  If  an  imiocent 
party  has  married  one  of  the  divorced  parties,  the  court  should 
refuse  the  application  if  the  motive  is  to  obtain  alimony  or 
some  pecuniary  advantage.  In  no  case  should  the  court 
gi'ant  relief  where  the  applicant  has  accepted  the  benefits  of 
the  decree  in  any  way  by  receiving  alimony  or  by  treating 
the  decree  as  valid  and  marrying  another.  The  rule  that 
unreasonable  delay  will  bar  the  vacation  of  a  decree  for 
fraud  should  bejigidly  enforced.  Thfe  application  to  vacate 
a  decree  will  be  denied  where  the  applicant  is  guilty  of  any 
conduct  creating  an  estoppel; 

Legislation  in  some  of  the  states  wiU  prevent  the  court 
from  vacating  a  decree  of  divorce  after  the  term  in  which 
it  was  entered.'  But  in  the  absence  of  statutory  provisions 
on  the  subject  the  court  may  exercise  its  inherent  power  to 
vacate  its  own  decrees  where  they  have  been  obtained  by 
fraud;  and  the  authorities  are  now  unanimous  that  such 
power  may  be  exercised  in  vacating  decrees  of  divorce  after 
the  term  in  which  they  were  rendered.^    Although  the  stat- 

1  Salisbury  v.  Salisbury,  93  Mo.  439;  R.  «.  R,  30  Wis.  331 ;  Johnson 
mS;  Childs  v.  Childs,  11  Mo.  Ap.  u  Coleman,  33  Wis.  453;  Crouch  u 
395;  Nave  v.  Nave,  38  Mo.  Ap.  505;  Crouch,  30  Wis.  667;  Boyd's  Ap- 
Ficener  v.  Ficener,  (Ky.),  3  S.  W.  peal,  88  Pa.  341;  Fidelity  Ins.  Co.'s 
597;  Parish  u  Parish,  SMpra.  But  Appeal,  93  Pa.  343;  Young  u  Young, 
see,  contra,  Earle  v.  Earle,  91  Ind.  17  Minn.  181;  True  v.  True,  6  Minn. 
37,  overruling  McQuigg  v.  Mo-  315;  Holmes  u  Holmes,  63  Me.  430; 
Quigg,  13  Ind.  394;  Hoffman  w  HoflE-  Wisdom  v.  Wisdom,  34  Neb.  551; 
maA,  15  Ind.  378;  Eindge  v.  Rindge,  Smithson  u  Smithson,  37  Neb.  535, 
33  Ind.  31;  Ewing  v.  Ewing,  34  Ind.  56  N.  W.  300;  Rush  v.  Rush,  46  la. 
468.  648;  Whitoomb  v.  Whitcomb,  46 

2  Adams  v.  Adams,  51  N.  H.  388;  la.  437;  Getcher  v.  Getoher,  51  Md. 
Weatherbeei;.  Weatherbee,30  Wis.  187;  McMurray  v.   McMurray,  67 


§  1051.J        ANNULLING  DECKEE  FOE  FEAUD.  1009 

ute  prohibits  the  review  of  a  divorce  .suit  on  appeal,  the 
court  may  exercise  this  inherent  power  where  the  divorce 
was  obtained  by  fraud.}  In  a  case  in  which  the  power  of  a 
•court  of  equity  to  vacate  a  decree  of  divorce  was  questioned, 
Bigelow,  C.  J.,  stated  that  it  was  "  an  established  principle 
of  jurisprudence  that  courts  of  justice  have  power,  on  due 
proceedings  had,  to  set  aside  or  vacate  their  judgments  and 
decrees,  whenever  it  appears  that  an  innocent  party  without 
notice  has  been  aggrieved  by  a  judgment  or  decree  obtained 
iigainst  him  Mathout  his  knowledge,  by  the  fraud  of  the  other 
party.  Nor  is  this  principle  limited  in  its  application  to 
courts  which  proceed  according  to  the  course  of  the  common 
law.  It  is  equally  applicable  to  courts  exercising  jurisdic- 
tion in  equity,  and  to  tribunals  having  cognizance  of  cases 
which  are  usually  heard  and  determined  in  the  ecclesiastical 
court.  In  tribunals  of  the  last  named  description,  whose 
decrees  cannot  be  revised  by  writ  of  error  or  review,  the 
proper  form  of  proceeding  is  by  petition  to  vacate  the  former 
decree  as  having  been  obtained  by  fraud  upon  the  party  and 
imposition  upon  the  court.^ 

§  1051.  False  or  insuflicient  evidence. — In  all  cases  where 
a  decree  of  divorce  has  been  obtained  by  false  or  insufficient 
evidence,  it  will  be  vacated  on  the  usual  application  and  show- 
ing of  the  facts,  as  in  other  cases.  Owing  to  the  interest 
of  the  state,  a  decree  upon  default  will  be  set  aside  in  some 
instances  where  the  showing  would  be  considered  insuffi- 
cient in  ordinary  cases.'  It  is  an  open  question  whether 
fraud  consisting  of  false  and  perjured  testimony  as  to  proof 
of  the  cause  of  action  is  sufficient  cause  for  vacating  the  or- 
dinary decree.^    The  general  rule  in  the  case  of  ordinary 

Tex.    665,   disapproving    Green  v.  constructive    service  will  be  va- 

Green,  3  Gray,  361.  cated,  see  §  835. 

1  Mansfield  v.  Mansfield,  26  Mo.  3  See  Default,  §  775. 

163.  ^  The  decree  of  another  state  is 

■■iEdsonv.  Edson,  108  Mass.  590.  also  open  to  collateral  attack  for 

When  default  will  be  set  aside,  fraud.    See  cases  cited  in  §  560. 

see  §  775.    When  decree  based  on  Dunham  v.  Dunham,  57  111.  Ap.  475. 
64 


1010  ANNULLING    DECREE    FOE    FEAUD.  [§  1051,. 

■judgments  is  that  the  fraud  for  which  a  judgment  may  b& 
vacated  in  equity  must  be  in  the  procurement  of  the  judg- 
ment, in  preventing  a  defense,  or  in  a  false  showing  of  the- 
jurisdictional  facts.  But  fraud  in  the  cause  of  action  is  not 
sufficient.^  This  rule  has  been  applied  to  actions  to  impeach 
decrees  of  divorce.  Thus  a  wife  cannot,  in  a  collateral  pro- 
ceeding in  the  same  state,  impeach  a  decree  for  divorce  ob- 
tained by  the  husband  by  false  testimony  and  perjury  as  to 
the  cause  for  divorce.^  The  remedy  in  such  case  is  a  direct 
proceeding  to  vacate  the  judgment.'  In  a  recent  case  the 
heirs  of  the  husband  brought  an  action  to  vacate  a  decree 
of  divorce  on  the  ground  that  the  parties  were  not  lawfully 
married ;  that  the  husband  was  insane  and  incapable  of  as- 
senting to  the  marriage;  that  the  husband  at  the  time  of 
the  marriage  had  a  wife  living  and  not  divorced,  and  that 
the  allegations  in  the  petition  for  divorce  were  false.  Jt- 
was  held  that  this  action  would  not  lie,  as  it  was  not  based 
on  any  fraud  in  the  procurement  of  the  decree.^ 

There  is,  however,  some  authority  for  a  collateral  attack 
of  a  decree  of  divorce  on  the  ground  of  fraud  in  the  cause- 
of  action.  A  wife,  during  the  absence  of  her  husband,  ob- 
tained a  decree  of  divorce  on  the  ground  of  desertion.  The 
decree  was  in  regular  form,  was  based  upon  constructive 
service,  and  it  was  admitted  that  the  court  had  jurisdiction. 
The  de6ree  granted  the  wife  certain  slaves  which  she  sold. 
The  husband  brought  an  action  against  the  wife  and  the 
purchasers  to  recover  the  slaves  on  the  ground  that  the  de- 
cree was  void  for  fraud  and  collusion  of  the  witnesses  as  to- 
the  cause  for  divorce.  The  bill  was  sustained,  although  the 
dissenting  opinion  in  the  case  clearly  pointed  out  the  dis- 
tinction between  direct  and  collateral  attack.* 

1  Freeman  on  Judgments,  §  489.  *  Eiohardson  v.  Stowe,  102  Mo.  33. 

2  Greene  v.  Greene,  3  Gray,  361 ;  ^  Plummer  v.  Plummer,  37  Miss. 
Nicholson  v.  Nicholson,  113  Ind.  185.  See,  also.  Van  Fleet  on  CoL- 
131.  At.,  §  550,  citing  abov,e  cases, 

aid. 


§  1052.]  ANNULLING    DECEEE    FOE   FEAUD.  1011 

§  1052.  Fraud  in  concealing  proceedings  and  preventing 
defense.— Any  conduct  of  the  plaintiff  which  conceals  notice 
of  the  proceedings  or  prevents  the  defendant  from  making 
a  defense  is  a  fraud  upon  the  administration  of  justice  as  well 
as  upon  the  defendant,  and  a  decree  so  procured  will  be  set 
•  aside.  The  fraud  is  complete  where  the  husbaad  sends  his 
wife  out  of  the  state  and  obtains  service  by  publication,  and 
conceals  from  her  all  notice  of  the  proceedings,  although  he 
continues  to  correspond  with  her.^  This  is  a  fraud  upon  the 
court,  Avhich  will  for  its  own  protection  set  aside  the  decree 
without  a  showing  of  a  defense  to  the  action,  which  would 
be  required  where  the  fraud  was  practiced  upon  the  party 
alone.  A  decree  will  be  set  aside  where  the  defendant  was 
prevented  from  making  a  defense  by  relying  upon  the  plaint- 
iff's promise  that  the  suit  will  be  dismissed.^  Where  the 
wife  testifies  that  the  husband  promised  to  dismiss  the  suit 
and  the  husband  denies  such  agreement,  the  decree  Avill  not 
be  vacated  unless  the  wife  is  corroborated  by  others  or  by 
circumstantial  evidence,  as  that  the  parties  lived  together  as 
husband  and  wife  after  the  commencement  of  the  suit  for 
divorce.^  A  decree  will  be  set  aside  where  it  was  obtained 
after  the  parties  had  entered  into  a  stipulation  to  dismiss 
the  suit  and  the  offense  had  been  condoned.* 

It  is  also  a  fraud  to  conceal  all  the  proceedings  by  com- 
mencing the  suit  in  a  county  where  neither  of  the  parties 
resides.'  In  a  recent  case  the  wife  filed  an  answer,  and  her 
attorney  was  notified  that  he  would  receive  notice  of  any 
further  proceedings  in  the  case.  Subsequently  this  suit  was 
dismissed  without  notice  to  her  attorney,  and  an  action  was 
brought  in  another  county,  where  service  was  had  by  publi- 

1  Whitcomb  v.  Whitcomb,  46  la.  2  Nicholson  v.  Nicholson,  113  Ind> 

437;   Everett  v.  Everett,   60  Wis.  131,  15  N.  E.  333. 

200;  Caswell  v.  Caswell,  130  lU.  377,  ^Scanlan  v.  Scanlan,  41  IlL  Ap. 

11  N.  E.  343.    See,  also.  Babbitt  u  449. 

Babbitt,  69  111.  377.    For  sufficiency  4  Thelin  w.  Thelin,  8  111.  Ap.  431. 

of  petition  to  vacate  decree  in  such  5  Ejgon  n  Edson,  108  Masss.  590; 

cases,  see  Colby  v.  Colby  (Minn.),  Caswell  v.  Caswell,  120  111.  377,  11 

61  N.  "W.  460.  N.  E.  843. 


1012  AHNTTLLING   DECEEE    FOK   FEAUD.  [§  1052. 

cation  and  by  mailing  a  copy  of  the  summons  and  complaint 
to  a  false  address,  where  defendant  would  receive  no  notice 
of  the  proceedings.     In  the  second  suit  the  plaintiff  con- 
cealed from  the  court  all  the  facts  concerning  the  former 
action  and  procured  a  decree  of  divoi-ce.     This  decree  was 
held  void  on  acco  mt  of  fraud  in  concealing  the  proceedings  ■ 
and  suppressing  the  facts  from  the  court.^    A  decree  will 
be  set  aside  for  fraud  'where  the  order  for  publication  is  ob- 
tained by  a  false  affidavit,  as  where  plaintiff  swears  she  does 
not  know  the  defendant's   address,  when  the   address  is 
known  to  her.^    Fraud  in  obtaining  a  divorce  in  the  name 
of  the  other  party  will  vitiate  the  decree,  as  where  the  hus- 
band procures  the  divorce  against   himself  as   defendant 
without  the  knowledge  of  the  wife.'    A  decree  was  set  aside 
■where  the  husband  induced  the  wife  to  go  to  Canada  under 
promise  that  they  would  live  together  when  she  had  been 
cured  of  a  venereal  disease.     She  was  served  with  summons 
on  her  way  out  of  the  state  and  admonished  by  her  husband 
to  keep  the  matter  quiet  on  account  of  public  scandal.    He 
continued  to  correspond  with  her  in  a  friendly  manner,  but 
made  no  reference  to  the  divorce  suit.     The  wife  was  igno- 
rant of  her  rights  and  was  under  the  control  of  the  husband, 
and  relied  upon  his  promise  to  live  with  her  at  some  future 
time.     These  facts  were  held  sufficient,  and  the  decree  was 
opened  and  the  wife  was  allowed  to  plead  the  connivance 
of  her  husband  and  that  the  offense  had  been  condoned.* ' 
A  remarkable  case  of  fraud  occurred  in  ISTew  York,  where 
the  husband  induced  the  wife  to  go  to  Cahfornia,  and  as  he 
left  her  on  board  the  steamer  at  the  last  moment  before  its 
departure,  he  delivered  to  her  a  sealed  box,  which,  he  in- 
formed her,  contained  a  present  to  her  mother  in  Cali- 

lYorke  v.  Yorke  (N.   Dak.),   55        3  Sloan  ?;.  Sloan,  103  lU.  581 ;  01m- 
N.  W.  1095.  stead  v.  Olmstead,  41  Minn.  397,  43 


^  Crouch  V.  Crouch,  30  Wis.  667 
Britton  v.  Britten,  45  N.  J.  Eq.  88 
Holmes  v.  Holmes)  63  Me.  430 
Adams  v.  Adams,  51  N.  H.  388. 


N.  W.  67;  Brown  u  Grove,  116  Ind. 
84,  18  N.  E.  387. 
*  Young  V.  Young,  17  Minn.  181. 


§  1053.]  A^fNULLING   DEOKEE   FOE   FEATJD.  1013 

fornia.  The  box  contained  a  summons  in  a  suit  for  divorce, 
but  the  wife  did  not  discover  the  fact  in  time  to  return. 
The  decree  was  vacated  and  the  plaintiff  charged  with  per- 

§1053.  Whether  decree  vacated  after  one  party  has 
married. —  Where  the  fraud  has  induced  the  court  to  render 
the  decree,  when  in  fact  it  had  no  jurisdiction,  it  must  be 
conceded  that  the  judgment  is  void,  and  when  the  truth  is 
made  to  appear  the  decree  must  be  vacated,  although  an  in- 
nocent third  person  has  married  one  of  the  divorced  parties.- 
It  is  not  disputed,  if  the  plaintiff  procures  a  decree  by  fraud 
in  concealing  the  proceedings  or  preventing  a  defense,  the 
fact  that  he  has  married  again  will  not  deprive  the  court  of 
the  power  to  render  justice  and  vacate  the  decree.'  The 
true  reason  of  the  law  is  that  public  policy  requires  that  the 
court  must  be  free  to  protect  itself  and  innocent  persons 
from  fraud.  The  exercise  of  such  power  cannot,  in  the 
nature  of  the  case,  be  prevented  by  the  guilty  party  subse- 
quently committing  ^  more  grievous  fraud  in  inducing  an 
innocent  party  to  marry  him.  To  adopt  a  policy  that  a  de- 
cree could  not  be  vacated  for  fraud  after  a  second  marriage 
was  contracted  in  good  faith  would  encourage  fraud  by 
placing  it  in  the  power  of  the  guilty  party  to  prevent  all 
disturbance  of  the  fraudulent  decree.  It  would  allow  him 
to  take  advantage  of  his  own  wrong.  Shrewd  and  unscrupu- 
lous attorneys  could  assure  their  dishonest  clients  that  a 

iBulkleyu  Bulkley,  7  Abb.  Pr.  well  v.  Caswell,  34  III.   Ap.   548; 

Rep.  307.  Scanlan  v.  Soanlan,  41  111.  Ap.  449; 

2  Stephens  v.  Stephens,  63  Tex.  Wortman  u  Wortman,  17  Abb.  Pr. 
337;  Whitoomb  v.  Whitcomb,  46  66;  Weatherbee  v.  Weatherbee,  30 
la.  437;  Holmes  v.  Holmes,  63  Me.  Wis.  499;  True  v.  True,  6  Minn. 
420;  Yorke  v.  Yorke  (N.  Dak.),  55  315;  Everett  v.  Everett,  60  Wis. 
N.  W.  1095;  Caswell  w  Caswell,  120  200;  Crouch  v.  Crouch,  30  Wis.  667; 
111.  377;  Edson  v.  Edson,  108  Mass.  Bomsta  v.  Johnson,  38  Miniv  230, 
590_  36  N.  W.  341 ;  Wisdom  v.  AVisdom. 

3  Allen  V.  McClellan,  13  Pa.  St.  24  Neb.  551 ;  Brotherton  w.  Brother- 
338;  Boyd's  Appeal,  38  Pa.  241;  ton,  12  Neb.  72;  Olmstead  u^Olm- 
Comstook  V.  Adams,  23  Kan.  513;  stead,  41  Minn.  297. 

Smith  V.  Smith,  30  Mo.  167;  Cas- 


1014  ANNULLING  DECREE  FOE  FRAUD.        [§  1053. 

hasty  marriage  will  make  the  fraud  successful  beyond  all 
question.  Such  a  policy  would  add  another  iniquity  to  the 
ex  parte  divorce,  which  is  already  a  disgrace  to  our  laws 
and  a  reijroach  upon  the  administration  of  justice.  The 
rights  of  the  innocent  third  person  must,  in  this  instance, 
yield  to  the  paramount  right  of  the  state  to  so  administer 
jusLice  as  to  prevent  fraud  and  protect  the  marriage  re- 
lation. 

But  as  the  laws  proceed,  in  such  cases,  upon,  reasons  of 
public  policy,  the  decree  will  not  be  vacated  where  other  con- 
siderations of  public  policy  intervene.  The  state  is  inter- 
ested in  the  preservation  of  a  marriage  after  a  lapse  of  time, 
in  the  security  of  titles  and  property  rights,  and  in  the 
legitimacy  of  children ;  and  where  the  defrauded  party  has 
delayed  in  asserting  her  rights  for  an  unreasonable  time  the 
decree  should  not  be  disturbed.  If  the  defrauded  party 
could  have  prevented  the  second  marriage  the  application 
comes  too  late.  Every  principle  of  estoppel  and  laches 
should  be  applied  to  defeat  the  party  complaining  of  fraud 
where  a  second  marriage  has  taken  place.  If  the  defrauded 
party  has  withdrawn  from  cohabitation  and  lives  in  another 
state,  she- has,  to  soine  extent,  placed  it  in  the  power  of  her 
husband  to  commit  the  fraud ;  and,  as  against  the  rights  of 
the  second  wife,  the  rule  of  equity  that  "  where  one  of  two 
innocent  parties  must  suffer  from  fraud,  the  party  who 
placed  it  in  the  power  of  the  third  party  to  commit  the 
fraud  must  suffer,"  should  be  applied.  One  who  has  re- 
nounced the  marital  relation  for  years  comes  in  bad  grace 
to  assert  marital  rights.  If  she  has  relied  upon  the  decree, 
accepted  its  benefits  and  married  again,  she  cannot  have  the 
decree  vacated,  although  the  decree  was  obtained  by  fraud 
or  is  void  for  want  of  jurisdiction.^ 

1  Eichardson  v.  Richardson,  133  1056;  Marvin  v.  Foster  (Wis.),  63 

Pa.  293,  19  A.  82;   EUis  v.  White,  N.  W.  484;  Mohler  u  Shanks'  Es- 

61  la.  644-,  Elliott  v.  Wohlfrom,  55  tate  (la.),  61  N.  W.  981.  See  contra, 

Cal.  384;  Loud  v.  Loud,  139  Mass.  Bundle  v.  Van  Inwegan,  9  Civil 

14;  Kicheson  v.  Simmons,  47  Mo.  Pro.  (N.  Y.)  328. 
20;  Ellis  V.  Ellis  (Minn.),  56  N.  W. 


j§§  1054,  1055.]      AlifNULLING   DEOKEE   FOR  FEAUB.  1015 

§  1054.  The  death  of  one  of  the  divorced  parties  is  not 
a  har, — A  decree  obtained  by  fraud  will  be  vacated  although 
■one  of  the  divorced  parties  is  dead.^  The  sanie  rule  of  pub- 
He  policy  that  requires  the  decree  to  be  vacated  although  a 
second  marriage  has  taken  place  will  require  the  same  relief 
a,lthough  one  of  the  parties  is  dead.  The  proceeding  will  be 
a  mere  contest  for  property ;  for  if  the  decree  is  vacated  the 
survivor  cannot  be  restored  to  marital  rights.  The  fact  that 
the  party  is  dead  who  is  alleged  to  have  procured  the  decree 
by  fraud  should  justify  the  court  in  requiring  clear  and 
satisfactory  evidence  of  the  fraud,  for  the  dead  can  make  no 
■denials  or  explanations. 

After  the  death  of  one  of  the  parties  the  other  is  incom- 
petent to  testify  against  deceased  in  a  suit  to  set  aside  a 
decree  on  account  of  fraud.^ 

Where  the  application  is  made  after  the  death  of  the  party 
guilty  of  fraud,  it  seems  that  both  the  administrator  and  the 
heirs  of  the  deceased  should  be  made  parties.  The  interests 
of  the  heirs  are  not  identical  with  that  of  the  administrator, 
and  the  decree  should  be  final  as  to  the  interests  of  all  par- 
ties when  it  is  certified  to  the  probate  court  before  the 
estate  is  settled.' 

§  1055.  When  parties  are  hound  by  a  divorce  ohtained 
hy  collusion. —  Where  the  parties  have  obtained  a  decree  of 
divorce  by  entering  into  an  agreement  to  suppress  evidence, 
or  to  not  interpose  a  defense,  or  by  other  collusive  agree- 

1  Rawlins  17.  Ea'wlins,  18  Fla.  345;  where  the  complainant  seeks  to 
.Johnson  v.  Coleman,  33  Wis.  452;  have  the  judgment  declared  void. 
Brown  v.  Grove,  116  Ind.  84;  Fidel-  "If  that  judgment  should  be  de- 
ity Ins.  Co.'s  Appeal,  93  Pa.  243;  clared  void  and  of  no  effect,  it 
Bomsta  i;.  Johnson,  38  Minn.  230;  would  open  the  door  for  the  widow 
Boyd's  Appeal,  38  Pa.  241.  to  come  in  and  claim  Jaer  share 

2  Fidelity  Ins.  Co.'s  Appeal,  93  Pa.  of  the  estate,  and  thus  the  heir 
242.  But  see  contra,  Brown  v.  would  be  deprived  of  a  portion 
■Grove,  116  Ind.  84  of  the  inheritance.    The  pecuniary 

3  Bomsta  v.  Johnson,  mpra.  In  interest  of  the  heir,  therefore,  is 
Johnson  u  Coleman,  23  Wis.  452,  the  opposed  to  the  application  and  to 
court  held  that  both  the  heir  and  granting  the  relief  asked  in  the 
the  administrator  should  be  joined  complaint." 


1016  AISTNTJLLING  DECEEE   FOE   FEAUD.  [§  1055. 

ments,  they  will  be  bound  by  the  decree,  and  the  wife  can- 
not plead  her.  own  collusion  as  a  fraud  upon  the  court  in 
order  to  have  the  decree  vacated  and  additional  alimony 
granted  to  her. 

Although  such  decree  is  a  fraud  upon  the  court,  and  there- 
fore against  public  policy,  in  some  cases  the  decree  will  not 
be  disturbed,  because  it  would  be  much  more  against  public 
policy  to  relieve  parties  who  are  in  pari  delicto,  or  to  allow 
the  wife  to  profit  by  her  collusion.^  A  decree  will  not  be 
vacated  where  the  wife  agrees  to  permit  the  husband  to  pro- 
cure a  divorce  on  the  ground  of  her  adultery,  in  considera- 
tion that  the  husband  pay  her  a  sum  of  money  and  convey 
to  her  certain  real  property,  which  he  refuses  to  do  after 
obtaining  the  divorce.  If  the  decree  was  vacated  and  the- 
wife  allowed  to  interpose  her  defense,  "  she  would  occupy  a. 
more  advantageous  position  from  which  to  renew  her  de- 
mand for  money,  and  perhaps,  profiting  by  her  experience^ 
negotiate  for  another  collusive  divorce  upon  a  cash-in-hand' 
basis."  ^  Whether  right  or  wrong  the  parties  cannot  be  re- 
lieved from  a  shameless  bargain  to  deceive  the  court.' 

In  some  instances  the  decree  will  be  vacated  where  the  wife 
is  an  unwilling  party  to  the  collusion,  and  participated  in  it 
under  the  coercion  of  the  husband  because  she  was  weak 
and  helpless.  Then  the  collusion  becomes  a  form  of  force 
and  fraud.  A  decree  will  be  vacated  where  the  Wife  is  com- 
pelled to  sign  the  petition  for  divorce  against  the  husband 
or  where  the  wife,  while  in,  a  weak  and  helpless  condition,, 
is  brought  into  the  state,  and  compellfed  to  accept  service  of 
a  summons  upon  the  understanding  that  the  decree  will  be 
for  desertion,  and  the  husband  obtains  a  decree  for  adultery, 
and  deprives  her  of  her  right  of  dower.* 

Collusion  of  the  parties  in  going  to  another  state  to  pro- 

1  Nichols  V.  Nichols,  25  N.  J.  Eq.  Orth  v.  Orth,  69  Mich.  158,  37  N.  W.- 
60;  Singer  v.  Singer,  41  Barb.  139.  57. 

2  Hubbard  v.  Hubbard,  19  Colo.  *01mstead  u  Olmstead,  41  Minn. 
13,  34  P.  170.  297,  43  N.  W.  67. 

3  Simons  v.  Simons,  47  Mich.  253;  5  Daniels  v.  Benedict,  50  Fed.  347.- 


§  1055.]  ANNULLING   DEOEEE   FOE   FEATID.  1017 

cure  a  divorce  will  prevent  either  of  the  parties  from  show- 
ing, in  a  subsequent  proceeding,  that  the  decree  was  void 
for  lack  of  jurisdiction.  Neither  of  the  parties  can  complain 
of  mutual  fraud  upon  the  court.  The  party  who  invoked 
the  aid  of  the  court  cannot  be  heard  to  question  its  jurisdic- 
tion.i  This  is  a  form  of  estoppel  similar  to  that  which  pre- 
vents a  party  from  attacking  the  validity  of  a  judgment 
after  he  has  accepted  the  benefits  of  it.  The  decree,  which 
is  void  for  lack  of  jurisdiction  over  the  subject-matter,  must 
always  remain  so,  and  no  act  of  the  parties  can  invest  it 
with  the  force  and  validity  of  a  decree  rendered  by  a  court 
of  competent  jurisdiction.  Although  it  is  a  nullity,  the  law 
refuses  all  relief  concerning  it  and  binds  the  parties  by  their 
collusive  agreement.  But  the  novel  and  erroneous  doctrine 
is  announced  in  Minnesota  that  a  decree  of  divorce  obtained 
by  collusion  in  another  state  where  neither  of  the  parties 
is  domiciled,  and  consequently  the  court  has  no  jurisdic- 
tion over  the  subject-matter,  is  valid  as  to  the  parties,  but 
void  as  to  the  state  of  their  residence.  The  facts  were  that 
the  wife,  in  applying  to  be  appointed  administratrix  of  her 
former  husband's  estate,  offered  to  show  that  she  was  the 
wife  of  deceased,  and  that  his  second  marriage  was  void  be- 
cause the  decree  of  divorce  which  she  had  obtained  in  Wis- 
consin was  void  for  the  reason  that  at  the  time  it  was- 
'rendered  she  and  her  husband  were  residents  of  Minnesota, 
and  consequently  the  court  in  Wisconsin  had  no  jurisdiction. 
This  offer  of  proof  was  refused  because  the  decree  was  valid 
as  to  the  parties,  and  the  rule  was  announced  that  "  while 
the  state  cannot  be  bound  by  its  resident  citizens  appearing 
in  and  consenting  to  the  jurisdiction  of  a  court  in  another 
state  in  an  action  for  divorce,  the  parties  may  bind  them- 
selves in  respect  to  their  individual  interests.  ...  It 
may  seem  anomalous  that  a  judgment  of  divorce  can  be  so 
far  effectual  between  the  parties  as  to  extinguish  aU  rights 
of  property  dependent  on  the  marriage  relation,  without 
being  effectual  to  protect  them  from  accountability  to  the 

iPeyh's  Estate,  5  N.  Y.  Supp.  90. 


1018  ANNULLING   DECREE    FOE    FEA0D.  [§  105G. 

state  for  their  subsequent  acts.  One  reason  why  they  ought 
not  to  be  permitted,  by  going  into  and  procuring  a  divorce, 
to  escape  accountability  to  the  laws  of  their  state,  is  that 
their  act  is  a  fraud  upon  the  state,  and  an  attempt  to  evade 
its  laws,  to  which  it  in  no  wise  consents,  and  it  may  there- 
fore complain.  But  the  parties  consent,  and  why  should 
they  be  heard  to  complain  of  the  consequences  to  them  of 
what  they  have  done?  "Why  should  they  be  permitted  to 
lescape  these  consequences  by  saying :  '  It  is  true  that  by  a 
false  oath  made  by  one  of  us,  and  connived  at  by  the  other, 
we  committed  a  fraud  in  the  Wisconsin  court  and  induced 
it  to  take  cognizance  of  the  case;  but  now  we  ask  to  avoid 
its  judgment  by  proof  of  our  fraud  and  perjury  or  suborna-. 
tion  of  perjury.'  Because  we  do  not  think  this  can  be  done, 
the  parties  must,  so  far  as  their  individual  interests  are  con- 
cerned, abide  by  the  judgment  they  procured  that  court  to 
render ;  and,  of  course,  what  wiU  bind  them  will  bind  those 
who  claim  through  them."  The  order  appointing  the  sec- 
ond wife  administratrix  was  then  affirmed.^  So  far  as  this 
opinion  asserts  the  validity  of  this  collusive  decree,  it  is- 
clearly  wrong,  because  the  fundamental  principle  of  juris- 
diction is  overlooked.  Jurisdiction  over  thp  subject-matter 
cannot  be  conferred  by  consent  of  the  parties.  The  same 
result  could  have  been  reached  by  holding  the  decree  void 
for  lack  of  jurisdiction,  and  that  the  wife  was  estopped  from^^ 
attacking  the  decree  by  her  fraud  and  collusion,  by  accept- 
ing the  alimony  awarded  by  it,  and  by  permitting  the  decree 
to  remain  in  force  until  the  husband  had  married  again. 

§  1056.  Delay  and  estoppel. —  It  is  a  familiar  principle 
of  law  that  the  party  who  seeks  relief  from  fraud  must  pro- 
ceed promptly  upon  the  discovery  of  the  fraud,  and  an  un- 
explained acquiescence  or  delay  after  he  has  knowledge  of 
the  facts  wiU  deprive  him.  of  his  rights.  This  rule  is  espe- 
cially applicable  to  a  party  seeking  to  vacate  a  decree  of  di- 
vorce on  the  ground  of  fraud ;  for  an  innocent  person  relying 
upon  the  decree  may  marry  the  divorced  party,  and  to  vacate 

1  EUis  V.  ElUs  (Minn.),  56  N.  W.  1056. 


f  1056.]        ANNULLING  DECREE  EOK  EEAUD.  1019 

the  decree  v^'iU.  deprive  the  second  wife  and  her  children  of 
property  rights  and  legal  status.  The  defrauded  party, 
after  discovering  the  fraud,  cannot  wait  until  a  second  mar- 
riage takes  place  and  assert  her  rights  to  the  injury  of  oth- 
ers. If  a  second  marriage  takes  place  after  an  unreason- 
able delay  of  the  defrauded  party,  she  has  lost  her  rights 
by  laches  and  cannot  disturb  the  decree  upon  which  others 
have  relied.i  Public  policy  forbids  the  review  of  decrees 
of  divorce  under  such  circumstances.^  Actions  to  vacate 
decrees  of  divorce  must  be  brought  within  a  reasonable 
time  after  the  discovery  of  the  fraud.  Such  time  must  not 
exceed  the  period  fixed  by  the  statute  of  limitations  within 
which  actions  must  be  brought  after  the  discovery  of  fraud.' 
Every  case  must  be  governed  by  its  own  circumstances. 
The  court  is  not  governed  by  the  statute  in  all  cases,  but 
may  apply  the  inherent  principles  peculiar  to  courts  of 
equity  and  refuse  all  relief  for  a  delay  of  a  shorter  period 
than  is  permitted  by  the  statute.*  The  cause  of  action  ac- 
crues when  the  party  discovers  that  a  decree  of  divorce  was 
rendered.  The  fact  that  the  decree  was  entered  of  record 
and  was  therefore  constructive  notice  of  the  proceeding  will 
not  be  such  actual  notice  as  wiU  put  the  plaintiff  upon  in- 
quiry.^ 

What  will  explain  and  excuse  delay  cannot  be  stated  in 
advance  by  any  rule  of  law,  but  is  to  be  determined  by  the 
circumstances  of  each  case.*    In  one  instance  a  decree  was 

1  Nicholsons  Nicholson,  113 Ind.  •'Sedlack  v.  Sedlack,  14  Or.  340, 
131,  15  N.  E.  233;  Yorston  v.  Yors-  18  P.  453;  Cochran  v.  Cochran 
ton,  33  N.  J.  Eq.  495.  (Neb.),  60  N.  W.  933. 

2  Thompson  v.  Thompson,  91  Ala.  *  Brown  v.  Grove,  116  Ind.  84,  18 
591.  N.  E.  387;  Caswell  v.  CasweU,  120 

3  Larimore  v.  Knoyle,  43  Kan.  338,  lU.  877,  11  N.  E.  343. 

38  P.  487;  Caswell  v.  Caswell,  120        6  Linn  v.  Linn,  2  N.  Y.  Supp.578; 

111.  377, 11  N.  E.  342;  Sloan  v.  Sloan,  Perry  v.  Perry,  15  Phila.  243;  Potts 

103  111.  581;  Jones  v.  Jones,  78  Wis.  v.  Potts,  10  W.  N.  C.  103;  Firmin 

446,    47    N.    "W.    738;    Bourlon   v.  v.  Firmin,   16  PhiL   75;    Smith  v. 

Waggaman,  28  La.  An.  481;  Hoi-  Smith,  3  Phila.  489;  Kello'wu  Kel- 

brook  V.  Holbrook,  114  Mass.  568;  low,  1  Le  Val.  Eep.  203. 
Prewit  V.  Dyer  (Cal.),  40  P.  105. 


1020  ANNULLING   DECEEE   FOE   FEATJD.  [§  1056. 

vacated  after  the  death  of  the  husband,  and  although  twenty- 
years  had  elapsed  since  the  date  of  the  decree,  where  the 
husband  had  obtained  a  decree  in  his  wife's  name  and  con- 
cealed the  proceedings  from  her.'  If  the  plaintiff  had  some 
notice  of  the  proceedings,  a  delay  of  fifteen  years  is  not 
excused  by  plaintiff's  poverty  and  her  desire  to  wait  until 
her  son  attains  majority.^  Poverty  wiU  excuse  a  delay  of 
nearly  two  years.'  "Where  plaintiff  has  resided  in  the  com- 
munity for  eight  or  nine  years  and  had  some  knowledge  of 
the  fraud,  her  unexplained  delay  is  too  great.*  A  decree 
Avas  vacated  fourteen  years  after  it  was  rendered,  where 
the  wife  brought  an  afffcion  to  vacate  within  seven  months 
after  discovering  that  such  decree  had  been  rendered,  the 
delay  of  seven,  months  being  excused  by  her  poverty.'  A 
wife  is  not  entitled  to  this  relief  where  she  has  delayed  her 
suit  for  four  years  while  relying  upon  her  husband's  promise 
of  a  suitable  provision  for  her;  the  inference  being  that  she 
did  not  regard  the  wrong  perpetrated  upon  her  by  the  de- 
fendant in  obtaining  the  divorce,  but  brings  the  action  for 
alimony  alone  .^ 

The  doctrine  of  estoppel  may  be  applied  in  these  cases> 
although  it  is  shown  that  the  decree  was  obtained  by  fraud. 
A  party  may  be  estopped  from  showing  that  a  decree  is  void 

1  Brown  v.  Grove,  116  Ind.  84,  18  from    such    course.    It    appeared 

K.  E.  387.  that  the  fact  of  their  divorce  was 

^Earleu  Earle,  91  Ind.  27.  known  to  the  relatives  and  was  a 

'  Everett  v.  Everett,  60  Wis.  200.  matter  of  common  knowledge  in 

*Zoellner  v.  Zoellner,  46  Mich.^  the  community,  although  the  di- 

511.  vorce  was    obtained    in    another 

5  CasweU  v.  Caswell,  120  111.  377,  county.    Five  years  after  her  re- 

11  N.  E.  342.  turn  the  wife  applied  to  have  the 

^Nicholsonv.  Nicholson,  113  Ind.  decree  set  aside.    Held,  that  her 

131,  15  N.  E.  223.  knowledge  of  the  decree  would  b& 

A  wife  testified  that  she  re-  presumed  from  the  date  of  her  re- 
turned to  the  place  where  the  di-  turn;  and  the  action  was  dismissed 
vorced  husband  resided  for  the  because  not  brought  within  three 
purpose  of  effecting  a  reconcilia-  years  (statutory  period)  after  dis- 
txon,  but  her  relatives  who  resided  covery  of  the  fraud.  Prewitt  v. 
in  the  same  place  dissuaded  her  Dwyer  (Cal.),  40  P.  105. 


§  1057.]  AlfHTTLLINQ    DECEEE    FOE   FEATJD.  1021 

by  Ms  conduct  showing  a  reliance  upon  the  decree.  Thus, 
where  a  party  has  obtained  a  judgment  or  decree,  he  is  es- 
topped from  showing  in  a  subsequent  proceeding  that  the 
court  which  granted  him  the  relief  had  no  jurisdiction.  And 
Avhere  a  party  obtains  a  decree  by  fraud,  it  is  clear  that  if 
the  defrauded  party  relies  upon  the  decree,  or  in  any  way 
accepts  its  benefits,  he  is  estopped  from,  asserting  its  invalid- 
ity. The  doctrine  is  familiar  and  need  not  be  repeated. 
The  authorities  have  been  cited  elsewhere.^ 

§  lOo?.  Procedure  in  vacating  decree  obtained  by  fraud. 
The  procedure  in  vacating  a  decree  for  fraud  must  conform 
to  the  local  practice.  Generally  the  application  is  by  an 
original  bill  stating  fully  and  particularly  all  the  facts  show- 
ing the  fraud  relied  upon.^  In  some  instances  the  applica- 
tion may  be  made  by  motion  to  vacate  the  decree  under  the 
provision  of  the  code  for  vacating  decrees  after  term.*  But 
the  decree  may  be  vacated  after  the  time  fixed  by  the  code.'' 
The  application  must  be  made  to  the  court  which  rendered 
the  decree.*  It  should  state  when  the  fraud  was  discovered, 
and  also  any  facts  which  explain  or  excuse  any  apparent 
delay.*  The  application  should  also  show  a  meritorious  de- 
fense to  the  suit,  so  that  the  court  can  determine  that  the 
fraud  has  prevented  the  party  from  obtaining  justice  and 
that  a  new  trial  will  result  in  a  different  decree.'    If  possible 

1  Gee  Estoppel,  §§  556  and  557.  of  the  case  was  that  the  trial  court 

2  Johnson's    Appeal,    9  Pa.  416;     had  no  jurisdiction. 

True  V.  True,   6  Minn.   315.     For  ^  Smithson  v.  Smithson,  id. 

forms  of  petitions  held  sufficient  ^Bomsta  v.   Johnson,  38   Minn. 

on  demurrer,  see  Lord  v.  Lord,  66  230,  36  N.  W.   341 ;     Larimore  v. 

Me.   365;   Eavvlins  v.  Eawlins,   18  Knoyle,   43  Kan.   338,   23  P.   487; 

Fla.  345.    See,  also,  defective  peti-  Nicholson  v.  Nicholson,   113  Ind. 

tion  in  Larimore  V.  Knoyle,  43  Kan.  131,  15  N.  E.  323;  Bedding  v.  Eed- 

838,  23  P.  487.  ding,  15  N.  Y.  Supp.  60.    See  form 

5  Mulkley  v.  Mulkley,  100  Cal.  91,  of  petition  in  Daniels  v.  Benedict, 

84  P.  621.  50  Fed.  347. 

*  See  dtcfMW  in  Smithson  u  Smith-  ^  Webster  v.  Webster,  54  la.  153; 

san,  37  Neb.  535,  56  N.  W.  300.    The  Everett  v.  Morrison,  21  N.  Y.  Supp. 

only  point  determined  in  this  opin-  328 ;  Thelin  v.  Thelin,  8  111.  Ap.  421 ; 

ioi  necessary  to  a  determination  Long  v.  Long,  59  Mich.  296;  Com, 


1022  ANNULLING  DKCEEE  FOE  FEAUD.        [§  1057. 

the  plaintiff  in  the  former  suit  should  have  actual  notice  of 
the  application  to  vacate  the  decree.'  But  where  the  appli- 
cation is  made  in  the  same  court  that  rendered  the  decree^ 
the  notice  may  be  served  upon  the  attorney  who  represented 
the  plaintiff.^  A  third  person  who  has  relied  upon  the 
decree  and  married  the  plaintiff  is  ^  proper  party  to  the 
^proceeding  and  should  have  notice.^  But  this  is  seldom 
required.  Such  third  person  cannot  escape  from  the  liabili- 
ties of  the  second  marriage  by  having  the  decree  vacated 
for  fraud,  where  he  is  not  injured  by  the  fraud.*  If  the 
plaintiff  is  dead,  the  legal  representatives  of  the  deceased 
should  be  made  parties,  and  also  all  parties  interested  in  the 
distribution  of  the  estate.^ 

The  evidence  of  fraud  should  be  clear  and  convincing  be- 
fore the  court  will  be  justified  in  setting  aside  a  decree.^  If 
the  application  is  made  promptly  and  before  third  parties, 
have  relied  upon  the  decree,  the  showing  need  not  be  as 
strong  as  where  years  have  elapsed-  and  the  other  party  has 
married  and  died,  leaving  a  widow  and  children. 

The  power  of  the  court  to  vacate  a  decree  on  its  own  mo- 
tion is  limited  to  a  reasonable  time,  not  extending  beyond 
the  term  in  which  the  decree  was  rendered.'  "When  the 
decree  is  vacated  for  fraud  in  deceiving  the  court  as  to  the 
residence  of  the  parties,  the  action  must  be  dismissed  if,  at_ 
the  time  of  the  application,  neither  of  the  parties  is  domi- 
ciled within  the  jurisdiction  of  the  court.     In  such  case  the 

V.    Sperling,    8    Pa.    Co.    Ct.   491;      '  ^Kinnier  u.  Kimiier,45  N.  Y.535; 
Goldei^u  Golden  (Ala.),  14  So.  638.    Ruger  v.  Heckle,  31  Hun,  489,  85 

1  But  this  is  not  always  required.    N.  Y.  483. 

Wanamaker    v.    Wanamaker,     10        sBomsta  v.   Johnson,   38   Minn. 

Phila.  466;  Keeseman  v.  Keeseman,  330,  36  N.  W.  341;  Johnson  v.  Cole- 

3  Pearson.  186;   Fitch  v.  Fitch,  1  man,  33  Wis.  453;  Eawhns  v.  Eaw- 

C.  P.  46.  .  lins,  18  Fla.  345 ;  Watson  v.  Watson, 

2  Beach  v.  Beach,  6  Dak.  371,  43  47  How.  Pr.  340. 

N.  W.  701 ;  Yorke  v.  Yorke  (N.  Dak.),  «  Hopkins  v.  Hopkins,  39  Wis.  167 ; 

55  N.  W.   1095.    But  see,   contra,  Getoher  v.   Getcher,   51   Md.   18,7; 

Ellis  V.  Ellis,  13  Neb.  91.  Adams  v.  Adams,  51  N.  H.  388. 

3  Carlisle  v.  Carlisle,  96  Mich.  138,  "  Brown  v.  ^rown,  53  Wis.  39. 
55  N.  W.  673. 


§  lOoY.]  ANNULLING    DECREE    FOE    FEATJD.  1025 

court  never  bad  jurisdiction  of  the  parties  and  the  subject- 
matter,  and  cannot  obtain  jurisdiction  of  the  status  of  th& 
parties  by  their  appearance.^  But  if  the  court  originally  had 
jurisdiction  by  reason  of  the  plaintiff's  domicile  in  the  state,, 
the  decree  is  set  aside,  the  defendant  permitted  to  answer, 
and  the  case  is  tried  upon  its  merits.^  In  this  proceeding 
temporary  alimony  may  be  allowed  the  wife.^  The  order 
denying  the  application  to  vacate  a  decree  is  a  final  order 
and  may  be  reviewed.^ 

1  Crouch  V.  Crouch,  30  Wis.  667;  Stephens  v.  Stephens,  63  Tex.  337; 

Lord  I'.  Lord,  66  Me.  265;  Smith  w  McMurray  v.  McMurray,  78  Tex, 

Smith,  4  Greene  (la.),  366.  584, 14  S.  W.  895. 

2Edson  V.  Edson,  108  Mass.  590;  ^Ex  parte  Smith,  34  Ala.  455  ^ 

Adams  v.   Adams, '  51   N.  H.  388;  Everett  u  Everett,  60  Wis.  200. 

Yorke  v.  Yorke  (N.  D.),  55  N.  W.  ^Haverty  v.  Haverty,  35  ICan, 

1095;  Whitcomb  v.  Whitcomb,  46  438,  11  P.  364 
la.  437;  Rush  v.  Eush,  46  la.  648; 


DIVORCE  STATUTES. 


The  following  statutes  were  in  force  on  the  1st  day  of 
January,  1895,  unless  otherwise  noted.  The  codes  and  re- 
vised statutes  from  which  the  language  is  quoted  are  given 
in  connection  with  each  state,  and  any  subsequent  legisla- 
tion is  cited  from  the  session  laws  of  later  date.  The  session 
laws  of  each  were  examined  as  late  as  the  year  1895.  For 
<5onvemenoe  the  causes  for  divorce  are  given  separately  for 
each  state  in  their  alphabetical  order,  followed  by  the  stat- 
utory provisions  relating  to  the  residence  of  the  parties.' 
Statutes  relating  to  constructive  service  on  defendant  are 
important  in  determining  the  validity  of  decrees  of  divorce 
rendered  in  other  states,  and  are  inserted  separately.^ 

The  Code  of  California  relating  to  marriage  and  divorce  is 
inserted  in  full  on  account  of  its  importance  in  other  states, 
and  because  it  is  the  most  complete  code  on  this  subject.' 
The  English  Divorce  Act  of  1857  is  also  included,  as  it  is 
not  accessible  to  many,  and  is  important  in  a  work  requir-' 
ing  the  examination  of  English  decisions. 


CAUSES  FOR  DIVORCE, 

ALABAMA, 
(Code  1886,  see.  2322.) 

Absolute  Divorce. 

(1)  In  favor  of  either  party,  where  the  other  was,  at  the  time  of  the 
marriage,  physically  and  incurably  incapacitated  from  entering  into 
the  marriage  state. 

(3)  Adultery. 

iPagelOSa  2  Page  1068.  'Page  1076. 

65 


1026  DIVOKOE    STATUTES. 

(3)  Voluntary  abandonment  from  bed  and  board  for  two  years  next 
preceding  the  filing  of  the  bill. 

(4)  Imprisonment  in  the  penitentiary  of  this  or  any  other  state  for 
two  years,  the  sentence  being  for  seven  years  or  longer. 

(5)  The  commission  of  the  crime  against  nature,  whether  with  man- 
kind or  beast,  either  before  or  after  marriage. 

(6)  Becoming  addicted  after  marriage  to  habitual  drunkenness. 

(7)  In  favor  of  the  husband  when  the  wife  was  pregnant  a,t  the  time^ 
of  marriage  without  his  knowledge  or  agency. 

(8)  In  favor  of  the  wife  when  the  husband  has  committed  actual  vio- 
lence on  her  person,  attended  with  danger  to  life  or  health;  or  when, 
from  his  conduct  there  is  reasonable  apprehension  of  such  violence. 

Limited  Divorck 

(1)  Cruelty  in  either  of  the  parties,  or  any  cause  which  would  justify 
a  decree  from  the  bonds  of  matrimony,  if  the  party  applying  therefor 
desires  only  a  divorce"  from  bed  and  board. 

ARIZONA. 

(Sec.  2110,  KeTise(l  Statutes  1887.) 

Absolute  Divorck 
(1)  When  the  husband  or  wife  is  guilty  of  excesses,  cruel  treatment,, 
or  outrages  towards  the  other,  whether  by  the  use  of  personal  v-iojence 
or  any  other  means. 

"  (2)  In  favor  of  the  husband  when  his  wife  shall  have  been  taken  ini 
adultery;  or  where  she  shall  have  voluntarily  left  his  bed  and  board 
for  the  space  of  six  months  with  the  intention  of  abandonment. 

(3)  In  favor  of  the  wife  where  the  husband  shall  have  left  her  for  six 
months  with  the  Intention  of  abandonment;  or, 

For  habitual  intemperance;  or, 

Wilful  neglect  to  provide  for  his  wife  the  necessaries  or  comforts  of 
life  for  like  period,  having  the  ability  to  provide  the  same,  or  failing  ta 
do  so  by  reason  of  his  idleness,  profligacy  or  dissipation;  or, 

Where  he  shall  have  been  taken  in  adultery  with  another  woman. 

(4)  In  favor  of  either  husband  or  wife,  when  the  other  shall  have 
been  convicted,  after  marriage,  of  a  felony,  and  imprisoned  in  any 
prison. 

There  is  no  Umited  divorce  in  Arizona. 

ARKANSAS. 
(Sec.  3556,  Mansfield's  Digest  1887.) 

Absohjte  or  Limited  Divorcb. 
(1)  Where  either  party,  at  the  time  of  the  contract,  was,  and  still  is, 
impotent 


CAUSES    FOK    DIVOECE.  1027 

(2)  Where  either  party  wilfully  deserts  and  absents  himself  or  herself 
from  the  other  for  the  space  of  one  year  without  reasonable  cause. 

(3)  Where  he  or  she  had  a  former  wife  or  husband  living  at  the  time 
of  the  marriage  sought  to  be  set  aside. 

(4)  Where  either  party  shall  be  convicted  of  felony  or  other  infamous 
crime. 

(5)  Where  either  party  shall  be  addicted  to  habitual  drunkenness  for 
the  space  of  one  year;  or  (a)  shall  be  guilty  of  such  cruel  and  bar- 
barous treatment  as  to  endanger  the  life  of  the  other;  or  (b)  shall  ofEer 
such  indignities  to  the  person  of  the  other  as  shall  render  his  or  her 
condition  intolerable. 

(6)  Where  either  party  shall  have  committed  adultery  subsequent  to 
such  marriage. 

(T)  Where  either  party  shall,  subsequent  to  such  marriage,  have  be- 
come permanently  or  incurably  insane. 


CALIFORNIA. 
See  California  Code,  page  1076. 

COLORADO. 

(Act  of  1893.) 

Absolute  Divorck. 

(1)  When  either  party,  at  the  time  of  marriage,  was,  and  continued 
to  be,  impotent;  or,  in  consequence  of  immoral  or  criminal  conduct 
subsequent  to  the  marriage,  became  impotent. 

(2)  When  he  or  she  had  a  wife  or  husband  living  at  the  time  of  such 
marriage. 

(3)  When  either  party  has  committed  adultery  subsequent  to  the  mar- 
riage; or, 

(4)  Has  wilfully  deserted  and  absented  himself  or  herself  from  the 
husband  or  wife,  without  reasonable  cause,  for  the  space  of  one  year. 

(5)  Has  been  guilty  of  extreme  or  repeated  acts  of  cruelty,  inflicting 
mental  suffering  or  bodily  violence. 

(6)  That  the  husband,  being  in  good  bodily  health,  shall  fail  to  make 
reasonable  provision  for  the  support  of  his  family  for  the  space  of  one 
year. 

(7)  That  either  party  has  been  guilty  of  habitual  drunkenness  for  the 
space  of  one  year. 

(8)  That  either  party  has  been  convicted  of  felony. 

There  is  no  limited  divorce,  but  alimony  may  be  granted  without  di- 
vorce. 


1028  DIVORCE    STATUTES 

CONNECTICUT. 

(Sec.  ^02,  General  Statutes.) 

Absolute  Divorce. 

(1)  Adultery. 

(2)  Fraudulent  contract.  i 

(3)  Wilful  desertion  for  three  years,  with  total  neglect  of  duty. 

(4)  Seven  years'  absence,  during  all  which  period  the  absent  party 
has  not  been  heard  from. 

(5)  Habitual  intemperance. 

(6)  Intolerable  cruelty. 

(7)  Sentence  to  imprisonment  for  life. 

(8)  Any  infamous  crime  involving  a  violation  of  conjugal  duty  and 
punishable  by  imprisonment  in  the  state  prison. 

There  is  no  limited  divorce  in  Connecticut. 


DAKOTA. 
See  North  Dakota  and  South  Dakota.  See,  also,  California  Code,  sec.  93. 

DELAWARa 
(Revised  Code  1893.)  - 

Absolute  Divorce. 
(1)  Adultery. 
(3)  Desertion  for  three  years. 

(3)  Habitual  drunkenness. 

(4)  Impotency  of  either  party  at  the  time  of  marriage. 

(5)  Extreme  cruelty. 

(6)  Conviction,  either  in  or  out  of  this  state,  after  marriage,  of  a  crime 
by  the  laws  of  this  state  deemed  felony,  whether  such  crime  shall  be 
perpetrated  before  or  after  such  marriage. 

(7)  Procurement  of  marriage  by  fraud  for  want  of  age,  the  husband 
being  under  the  age  of  eighteen  years,  or  the  wife  being  under  the  age 
of  sixteen  years,  at  the  time  of  the  marriage,  and  such  marriage  not 
being,  sifter  those  ages,  voluntarily  ratified. 

(8)  Wilful  neglect  on  the  part  of  the  husband  for  three  years  to  pro- 
vide for  his  wife  the  necessaries  of  life  suitable  to  her  condition. 

Limited  Divorce. 

Either  an  absolute  or  limited  divorce  may  be  decreed,  at  the  discre- 
tion of  the  court,  for  the  seventh  and  eighth  causes  above  specified. 


CAUSES   FOE   DITOEOB.  1029 

DISTRICT  OF  COLUMBIA. 
CU.  S.  statutes  at  large  1871-74.) 

Absolute  DrvoECB. 

(1)  When  such  marriage  was  contracted  while  either  of  the  parties 
thereto  had  a  former  wife  or  husband  living,  unless  the  former  mar- 
riage had  been  lawfvdly  dissolved  and  no  restraint  imposed  on  the 
party  contracting  such  second  marriage. 

(3)  Where  such  marriage  was  contracted  during  the  lunacy  of  either 
party. 

(3)  Where  either  party  was  matrimonially  incapacitated  at  the  time 
of  marriage. 

(4)  Where  either  party  has  committed  adultery  during  the  marriage. 

(5)  For  habitual  drunkenness  for  a  period  of  three  years  of  either 
party  complained  against. 

(6)  For  cruelty  of  treatment,  endangering  the  life  or  health  of  the 
party  complaining. 

(7)  For  wilful  desertion  and  abandonment  by  the  party  complained 
of  against  the  party  complaining  for  the  full  uninterrupted  space  of 
two  years. 

Limited  Divorce. 

(1)  Cruelty  of  treatment,  endangering  the  life  or  health  of  one  of  the 
parties. 

(3)  Reasonable  apprehension,  to  the  satisfaction  of  the  court,  of  bodily 
harm. 

FLORIDA. 

(Revised  Statutes  1891,  sec.  1480.) 

Absolute  Divorck 

(1)  Where  the  parties  are  within  the  degrees  of  relationship  prohibited 
by  law. 
(3)  Where  either  party  is  naturally  impotent. 

(3)  Adultery  in  either  of  the  parties. 

(4)  Extreme  cruelty  in  either  party. 

(5)  Habitual  indulgence  by  defendant  in  violent  and  ungovernable 
temper. 

(6)  Habitual  intemperance  of  defendant. 

(7)  Wilful,  obstinate  and  continued  desertion  by  either  party  for  the 
term,  of  one  year. 

(8)  That  defendant  has  obtained  a  divorce  in  any  other  state  or 
country. 

(9)  That  either  party  had  a  husband  or  wife  living  at  the  time  of  the 
marriage  sought  to  be  annulled. 


1030  DITOECE    STATUTES. 

There  is  no  limited  divorce  in  Florida,  but  the  wife  may  obtain  ali- 
mony without  divorce  f or  the  f oUowing  causes:  (1)  On  the  husband's 
deserting  his  wife  for  one  year;  (2)  on  his  living  in  open  and  avowed 
adultery  with  another  woman  for  three  nionths;  (3)  in  cases  of  cruel, 
inhuman  and  barbarous  treatment;  (4)  on  the  husband's  committing 
any  act  which  shall  be  cause  of  divorce  under  the  statutes  of  this  state. 

GEORGIA. 

(Code  1882,  sees.  1712,  1714.) 

Absolute  Divorce. 

(1)  Intermarriage  by  persons  within  the  prohibited  degrees  of  con- 
sanguinity and  affinity. 

(2)  Mental  incapacity  at  the  time  of  marriage. 

(3)  Impotency  at  the  time  of  the  marriage. 

(4)  Force,  menaces,  duress  or  fraud  in  obtaining  the  marriage. 

(5)  Pregnancy  of  the  wife  at  the  time  of  the  marriage  unknown  to 
the  husband. 

(6)  Adultery  in  either  of  the  parties  after  marriage. 

(7)  Wilful  and  continued  desertion  by  either  of  the  parties  for  the 
term  of  three  years. 

(8)  The  conviction  of  either  party  of  an  offense  involving  moral  tur- 
pitude, and  under  which  he  or  she  is  sentenced  to  imprisonment  in  the 
penitentiary  for  the  term  of  two  years  or  longer. 

Absolute  or  limited  divorce  may  be  granted  in  the  discretion  of  the 
jury  in  case  of  either  (1)  cruel  treatment  or  (3)  habitual  intoxication  by 
either  party. 

Limited  Divorcb. 

(1)  "  Divorces  from  bed  and  board  may  be  granted  on  any  ground 
which  was  held  sufficient  in  the  English  courts  prior  to  May  4, 1784." 

IDAHO. 
See  California  Code,  sees.  82,  83,  92, 128, 141. 

ILLINOIS. 

{S.  &  C.  Annotated  Statutes  1885,  ch.  40.) 

Absolute  Divorce. 

(1)  When  either  party  at  the  time  of  marriage  was,  and  continues  to 
be,  naturally  impotent. 

(2)  When  he  or  she  had  a  wife  or  husband  living  at  the  time  of  such 
marriage. 


CAUSES   rOE  DIVORCE.  1031 

(3)  When  either  party  has  committed  adultery  subsequently  to  the 
Boanriage;  or, 

(4)  Has  wilfully  deserted  or  absented  himself  or  herself  from  the  hus- 
band or  wife,  without  any  reasonable  cause,  for  the  space  of  two  years; 
or, 

(5)  Has  been  guilty  of  habitual  drunkenness  for  the  space  of  two 
years;  or, 

(6)  Has  attempted  the  life  of  the  other  by  poison  or  other  means  show- 
ing malice;  or, 

(7)  Has  been  guilty  of  extreme  and  repeated  cruelty;  or, 

(8)  Has  been  convicted  of  felony  or  other  infamous  crime. 

There  is  no  limited  divorce  in  Illinois,  but  the  wife  may  obtain  ali- 
mony without  divorce,  where  she  is  livipg  apart  from  her  husband  with- 
out her  fault 

INDIANA. 

(Annotated  Code  1888,  sec.  1032.) 

Absolute  Divorck 
(1)  Adultery. 

(3)  Impotency  existing  at  the  time  of  the  marriage. 

(3)  Abandonment  for  two  years. 

(4)  Cruel  and  inhuman  treatment  of  either  party  by  the  other. 

(5)  Habitual  drunkenness  of  either  party. 

(6)  The  failure  of  the  husband  to  make  reasonable  provision  for  his 
family  for  a  period  of  two  years. 

(7)  The  conviction,  subsequent  to  the  marriage,  in  any  country,  of 
either  party,  of  an  infamous  crime. 

There  is  no  limited  divorce  in  Indiana,  but  a  married  woman  may  ob- 
tain provision  for  the  supjwrt  of  herself  and  infant  children  in  the  fol- 
lowing cases  (sec.  5133): 

(1)  When  the  husband  shall  have  deserted  his  wife,  or  wife  and  chil- 
dren, not  leaving  her  or  them  sufficient  provision  for  her  or  their  sup- 
port. 

(2)  When  the  husband  shall  have  been  convicted  of  felony,  and  im- 
prisoned in  the  state  prison,  not  leaving  his  wife,  or  his  wife  and  chil- 
■dren,  sufficient  provision  for  her  or  their  support. 

(3)  When  the  husband  is  an  habitual  drunkard,  and  by  reason  thereof 
"becomes  incapacitated  or  neglects  to  provide  for  his  family. 

(4)  When  a  married  man  renounces  the  marriage  covenant  or  refuses 
to  live  with  his  wife  in  the  conjugal  relation,  by  joining  himself  to  a 
«ect  or  denomination  the  rules  and  doctrines  of  which  require  a  renun- 
ciation of  the  marriage  covenant,  or  forbid  a  man  and  woman  to  dwell 
.and  cohabit  together  in  the  conjugal  relation  according  to  the  true  in- 
i:ent  and  meaning  of  the  institution  of  marriage. 


1032  DIVOECE    STATUTES. 

INDIAN  TERRITORY. 
Statute  the  same  as  Arkansas,  page  1026. 

IOWA. 

(McCIain's  Annotated  Code  1888,  sec.  3414.) 

Absolute  Divorce. 

(1)  Against  the  husband  when  he  has  committed  adultery  subsequent 
to  the  marriage. 

(3)  When  he  wilfully  deserts  his  wife  and  absents  himself  without  a 
reasonable  cause  for  the  space  of  two  years. 

(3)  When  he  is  convicted  of  felony  after  the  marriage. 

(4)  When,  after  marriage,  he  becomes  addicted  to  habitual  drunken- 
ness. 

(5)  When  he  is  guilty  of  such  inhuman  treatment  as  to  endanger  the 
life  of  his  wife. 

(6)  Against  the  wife  for  the  causes  above  specified,  and  also  when  the 
wife  at  the  time  of  the  marriage  was  pregnant  by  another  than  herhus- 
hand,  unless  the  husband  have  an  illegitimate  child  or  children  then 
living,  which  was  unknown  to  the  wife  at  the  time  of  their  marriage. 

There  is  no  limited  divorce  in  Iowa,  but  courts  of  equity  will  grant 
alimony  without  divorce. 

KANSAS. 
(General  Statutes  1889,  sec.  4Sr4S.) 

Absolute  Divorce. 

(1)  When  either  of  the  parties  had  a  former  husband  or  wife  living 
at  the  time  of  the  subsequent  marriage. 
(3)  Abandonment  for  one  year. 

(3)  Adultery. 

(4)  Impotency. 

(5)  When  the  wife,  at  the  time  of  the  marriage,  was  pregnant  by  an^ 
other  than  her  husband. 

(6)  Extreme  cruelty. 

(7)  Fraudulent  contract. 

(8)  Habitual  drunkenness. 

(9)  Gross  neglect  of  duty. 

(10)  The  conviction  of  felony  and  imprisonment  in  the  penitentiary 
therefor  subsequent  to  the  marriage. 

There  is  no  limited  divorce  in  Kansas,  but  the  wife,  whether  a  resi- 
dent or  non-resident,  may  obtain  alimony  without  divorce  from  her 
husband,  in  an  action  brought  for  that  purpose,  for  any  of  the  causes- 
for  which  a  divorce  may  be  granted. 


CAUSES   FOE  DITOEOE.  1033 

KENTUCKY. 

(General  Statutes  1888.) 

Absolute  Divorce. 

To  both  husband  and  wife  for  the  following  causes: 
(1)  Such  impotency  or  malformation  as  prevents  sexual  intercourse. 
(8)  Living  apart  without  any  cohabitation  for  five  consecutive  years 
next  before  the  application. 

Also  to  the  party  not  in  fault  for  the  following  causes: 
(1)  Abandonment  of  one  party  by  the  other  for  one  year. 
(3)  Living  in  adultery  with  another  man  or  woman. 

(3)  Condemnation  for  felony,  in  or  out  of  this  state. 

(4)  Concealment  from  the  other  party  of  any  loathsome  disease  exist- 
ing at  the  time  of  marriage;  or, 

(5)  Contracting  such  afterwards. 

(6)  Force,  duress,  or  fraud  in  obtaining  the  marriage. 

(7)  Uniting  with  any  religious  society  whose  creed  and  rules  require 
a  renunciation  of  the  marriage  covenant,  or  forbid  husband  and  wife 
from  cohabiting. 

Also  to  the  wife,  when  not  in  Uke  fault,  for  the  following  causes: 

(1)  Confirmed  habit  of  drunkenness  on  the  part  of  the  husband  of 
not  less  than  one  year's  duration,  accompanied  with  a  wasting  of  his 
estate,  and  without  any  suitable  provision  for  the  maintenance  of  his 
wife  or  children. 

(3)  Habitually  behaving  towards  her  by  the  husband,  for  not  less  than 
six  months,  in  such  cruel  and  inhuman  manner  as  to  indicate  a  settled 
aversion  to  her,  or  to  destroy  permanently  her  peace  or  happiness. 

(3)  Such  cruel  beating  or  injury,  or  attempt  at  injury,  of  the  wife  by 
the  husband  as  indicates  an  outrageous  temper  in  him,  or  probable 
danger  to  her  life,  or  great,  bodily  injury,  from  her  remaining  with  him. 

Also  to  the  husband  for  the  following  causes: 

(1)  Where  the  wife  is  pregnant  by  another  man  without  the  husband's 
knowledge  at  the  time  of  marriage. 

(3)  When  not  in  like  fault,  for  habitual  drunkenness  on  the  part  of 
the  wife  of  not  less  than  one  year's  duration. 

(3)  Adultery  by  the  wife,  or  such  lewd,  lascivious  behavior  on  her 
part  as  proves  her  to  be  unchaste,  without  actual  proof  of  an  act  of 
adultery. 

Limited  Divorce. 

Judgment  for  separation,  or  divorce  from  bed  and  board,  may  also  be 
rendered  for  any  of  the  causes  which  allow  divorce,  or  for  such  other 
cause  as  the  court  in  its  discretion  may  deem  sufficient. 


1034  DIVOECE    STATUTES. 

LOUISIANA. 

Absolute  Divorce. 

(1)  Where  the  huslaand  or  wife  may  have  been  sentenced  to  an  in- 
famous punishment;  or, 
(3)  Guilty  of  adultery. 

Limited  Divorce. 

(1)  In  case  of  adultery  on  the  part  of  the  other  spousa 

(2)  Where  the  other  spouse  has  been  condemned  to  an  infamous 
punishment. 

(3)  On  account  of  the  habitual  intemperance  of  one  of  the  married 
persons;  or, 

(4)  Excesses,  cruel  treatment,  or  outrages  of  one  of  them  toward  the 
other,  if  such  ill-treatment  is  of  such  a  nature  as  to  render  their  living 
together  insupportable. 

(5)  Public  defamation  on  the  part  of  one  of  the  married  persons 
towards  the  other. 

(6)  The  abandonment  of  the  husband  by  the  wife,  or  the  wife  by  her 
husband. 

(7)  An  attempt  of  one  of  the  married  persons  against  the  life  of  the 
other. 

(8)  Where  the  husband  or  wife  has  been  charged  with  an  infamous 
offense  and  shall  actually  have  fled  from  justice,  on  producing  proofs 
that  such  husband  or  wife  has  actually  been  guilty  of  such  infamous 
olfense,  and  has  fled  from  justice. 

The  party  obtaining  a  limited  divorce  may,  after  one  year,  obtain  an 
absolute  divorce. 

MAINE. 
(Bevised  Statutes  1883.) 

Absolute  Divorce. 
(1)  Adultery. 
(3)  Impotence. 

(3)  Extreme  cruelty. 

(4)  Utter  desertion,  continued  for  three  consecutive  years  next  prior 
to  the  filing  of  the  libeL 

(5)  Gross  and  confirmed  habits  of  intoxication. 

(6)  Cruel  and  abusive  treatment. 

(7)  On  the  libel  of  the  wife,  when  the  husband,  being  of  sufficient 
ability,  or  being  able  to  labor  and  provide  for  her,  grossly  or  wantonly 
and  cruelly  refuses  or  neglects  to  prqvide  suitable  maintenance  for  her. 
(Act  of  1898.) 

No  limited  divorce  or  decree  nisi  is  granted.     (Act  of  1889.) 


CAUSES    FOE   DIYOKCE.  1035 

MARYLAND. 

(General  Statutes,  page  142.) 

Absolute  Divorce. 

<1)  The  impotence  of  either  party  at  the  time  of  the  marriage. 

(2)  Any  cause  which,  by  the  laws  of  this  state,  renders  a  marriage 
Dull  and  void  ab  initio. 

(3)  Adultery. 

(4)  When  the  court  shall  be  satisfied  by  competent  testimony  that 
the  party  complained  against  has  abandoned  the  party  complaining, 
and  that  such  abandonment  has  continued  uninterruptedly  for  at  least 
three  years,  and  is  deliberate  and  final,  and  the  separation  of  the  parties 
beyond  any  reasonable  expectation  of  reconciliation. 

(5)  When  the  woman  before  marriage  has  been  guilty  of  illicit  carnal 
intercourse  with  another  man,  the  same  being  unknown  to  the  husband 
at  the  time  of  the  marriage,  and  when  such  carnal  connection  shall  be 
proved  to  the  satisfaction  of  the  court. 

Limited  Divorce. 

(1)  Cruelty  of  treatment. 

(2)  Excessively  vicious  conduct. 

(3)  Abandonment  and  desertion. 

Limited  divorce  may  be  decreed  in  a  case  where  absolute  divorce  is 
prayed,  if  the  causes  proved  be  sufiicient  to  entitle  the  party  to  the 
£ame. 

MASSACHUSETTS. 
(PubUc  statutes  1882.) 

Absolute  Divorce. 
<1)  Adultery. 

(2)  Impotency.     ^ 

(3)  Extreme  cruelty. 

(4)  Utter  desertion  continued  for  three  consecutive  years  next  prior 
to  the  filing  of  the  libeL 

(5)  Gross  and  confirmed  habits  of  intoxication. 

(6)  Cruel  and  abusive  treatment. 

(7)  On  the  libel  of  the  wife,  when  the  husband,  being  of  sufiicient 
ability,  grossly  or  wantonly  and  cruelly  refuses  or  neglects  to  provide 
suitable  maintenance  for  her. 

(8)  When  either  party  has  separated  from  the  other  without  his  or 
ber  consent,  and  has  united  with  a  religious  sect  or  society  that  pro- 
fesses to  believe  the  relation  of  husband  and  wife  void  or  unlawful,  and 
bas  continued  united  with  such  sect  or  society  for  three  years,  refusing 
during  that  term  to  cohabit  with  the  other  party. 


1036  DIVOECE   STATUTES. 

(9)  When  either  party  has  been  sentenced  to  confinement  at  hard 
labor  for  life  or  for  five  years  or  more  in  the  state  prison,  or  in  a  jail 
or  house  of  correction. 

Limited  Divorce. 

Excessive  use  of  opium  or  other  drugs.    (Act  of  1889.) 

A  divorce  from  the  bond  of  matrimony  may  Jje  decreed  for  any  of  the 
causes  allowed  by  law,  notwithstanding  the  fact  that  the  libelee  has 
been  continuously  absent  for  such  a  period  of  time  and  under  such  cir- 
cumstances as  would  raise  a  presumption  of  death. 

All  decrees  of  divorce  shall  in  the  first  instance  be  decrees  nisi,  to 
become  absolute  after  the  expiration  of  six  months  from  the  entry 
thereof,  and  thereupon  the  clerk  shall  enter  a  final  decree  unless  the 
court  has,  for  sufiicient  cause,  on  application  of  any  party  interested, 
otherwise  ordered.    (Act  of  1893.) 

It  is  now  provided  by  statute  that  when  a  divorce  from  bed  and 
board,  under  laws  heretojfore  in  force,  has  been  decreed,  and  the  parties 
have  lived  separately  for  three  consecutive  years  next  after  the  decree, 
a  divorce  from  the  bonds  of  matrimony  may  be  granted  upon  the  peti- 
tion of  the  party  in  whose  favor  the  previous  decree  was  granted;  and 
when  the  parties  have  lived  separately  for  five  consecutive  years  next 
after  such  decree,  a  divorce  from  the  bond  of  matrimony  may  be  de- 
creed in  favor  of  either  party. 

MICHIGAN. 

(Howell's  Annotated  Statutes  1882,  sec.  6228.) 

Absolute  Divorce. 

(1)  Whenever  adultery  has  been  committed  by  any  husband  or  wife. 
(3)  When  one  of  the  parties  was  physically  incompetent  at  the  time 
of  the  marriage. 

(3)  When  one  of  the  parties  has  been  sentenced  to  imprisonment4n 
■  any  prison,  jail  or  house  of  correction  for  three  years  or  more;  and  no 

pardon  granted  to  the  party  so  sentenced,  after  a  divorce  for  that 
cause,  shall  restore  such  party  to  his  or  her  conjugal  rights. 

(4)  When  either  party  shall  desert  the  other  for  the  term  of  two  years. 

(5)  When  the  husband  or  wife  shall  have  become  an  habitual  drunkard. 

(6)  And  the  circuit  courts  may,  in  their  discretion,  upon  application 
as  in  other  cases,  divorce  from  the  bonds  of  matrimony  any  party  who 
is  a  resident  of  this  state,  and  whose  husband  or  wife  shall  have  ob- 
tained a  divorce  in  any  other  state. . 

Limited  Divorce  (or  absolute  in  the  discretion  of  the  court). 

(1)  Extreme  cruelty,  whether  practiced  by  using  personal  violence  or 
by  other  means. 


CAUSES   FOE   DIVORCE.  1037 

(3)  Utter  desertion  by  either  of  the  parties  for  the  term  of  two  years. 

(3)  On  complaint  of  the  wife,  when  the  husband,  being  of  sufficient 
ability  to  provide  a  suitable  maintenance  for  her,  shall  grossly  or  wan- 
tonly and  cruelly  refuse  or  neglect  so  to  do. 

MINNESOTA. 
(General  Statutes  1889.) 

Absolute  Divorce. 
(1)  Adultery. 

(3)  Impotenoy. 

(3)  Cruel  and  inhuman  treatment. 

(4)  When  either  party,  subsequent  to  the  marriage,  has  been  sen- 
tenced to  imprisonment  in  the  state  prison. 

(5)  "Wilful  desertion  of  one  party  by  the  other  for  the  term  of  three 
years  next  preceding  the  filing  of  the  complaint. 

(6)  Habitual  drunkenness  for  the  space  of  one  year  immediately  pre- 
ceding the  filing  of  the  complaint. 

Limited  Divorce  (to  wife  only,  forever  or  for  limited  time.) 

(1)  Cruel  and  inhuman  treatment  by  the  husband  of  his  wife. 

(2)  Such  conduct  on  the  part  of  the  husband  towards  his  wife  as  may 
render  it  unsafe  and  improper  for  her  to  cohabit  with  him. 

(3)  The  abandonment  of  the  wife  by  the  husband,  and  his  refusal  or 
neglect  to  provide  for  her. 

MISSISSIPPI 
CAnnotated  Code  1892,  see.  1563.) 

Absolute  Divorce. 

(1)  Natural  impotency. 

(3)  Adultery,  unless  it  shall  appear  that  it  was  committed  by  collu- 
sion of  the  parties  for  the  purpose  of  procuring  a  divorce,  or  unless  the 
parties  cohabited  after  a  knowledge  by  complainant  of  the  adultery. 

(3)  Being  sentenced  to  the  penitentiary,  and  not  pardoned  before 
being  sent  there. 

(4)  Wilful,  continued  and  obstinate  desertion  for  the  space  of  two 
years. 

(5)  Habitual  drunkenness. 

(6)  Habitual  and  excessive  use  of  opium,  morphine  or  other  like  drug. 

(7)  Habitual  cruel  and  inhuman  treatment. 

(8)  Insanity  or  idiocy  at  the  time  of  marriage,  if  the  party  complain- 
ing did  not  know  of  such  infirmity. 

(9)  Marriage  to  some  other  person  at  the  time  of  the  pretended  mar- 
nage  between  the  parties. 


1038  DIVORCE   STATUTES. 

(10)  Pregnancy  of  the  wife  by  another  person  at  the  time  of  the  mar- 
riage, if  the  husband  did  not  know  of  such  pregnancy. 

(11)  Either  party  may  have  a  divorce  if  they  be  related  to  each  other 
within  the  degrees  of  kindred  between  whom  marriage  is  prohibited 
by  law. 

Limited  Divorce. 

Limited  divorce  is  not  granted,  but  courts  of  equity  may  grant  a  sep- 
arate maintenance. 

MISSOURL 

(Eevised  Statutes  1889,  sec.  4500.) 

Absolute  Divoecb. 

(1)  "When  either  party,  at  the  time  of  the  contract  of  marriage,  waa 
and  still  is  impotent;  or, 

(2)  Had  a  wife  or  husband  living  at  the  time  of  the  marriage;  or, 

(3)  Has  committed  adultery  since  the  marriage;  or, 

(4)  Has  absented  himself  or  herself,  without  a  reasonable  cause,  for 
the  space  of  one  year;  or, 

(5)  During  said  marriage  shall  have  been  convicted  cf  felony  or  in- 
famous crime;  or, 

(6)  Shall  have  been  addicted  to  habitual  drunkenness  for  the  space 
of  one  year;  or, 

(7)  Shall  be  guilty  of  such  cruel  or  barbarous  treatment  as  to  endan- 
ger the  life  of  the  other;  or, 

(8)  Shall  offer  such  indignities  to  the  other  as  shall  render  his  or  her 
condition  intolerable ;  or, 

(9)  When  the  husband  shall  be  guilty  of  such  conduct  as  to  consti- 
tute him  a  vagrant,  within  the  meaning  of  the  law  respecting  va- 
grants; or, 

(10)  Where,  prior  to  the  contract  of  marriage,  or  the  solemnization 
thereof,  either  party  shall  have  been  convicted  of  a  felony,  or  infamous 
crime,  in  any  state,  territory  or  country,  without  knowledge  on  the  part 
of  the  other  party  of  such  fact  at  the  time  of  such  marriage;  or, 

(11)  Where  the  intended  wife,  at  the  time  of  marriage,  shall  have 
been  pregnant  by  any  other  man  than  her  intended  husband,  and  with- 
out his  knowledge  at  the  time  of  such  solemnization. 

There  is  no  limited  divorce  in  Missouri 

MONTANA. 
(CompUed  Statutes  1887,  sec.  999.) 

Absolute  Divorck 

(1)  If  either  party  was,  at  the  time  of  marriage,  and  continued  to  be, 
impotent  naturally;  or, 


CAUSES    FOE   DIVOECE.  lOSO 

(3)  That  he  or  she  bad  a  wife  or  husband  living  at  the  time  of  mar- 
riage; or, 

(3)  Tliat  either  party  has  committed  adultery  subsequent  to  mar- 
riage; or, 

(4)  Has  wilfully  absented  himself  or  herself  from  the  other  without 
reasonable  cause  for  the  space  of  one  year;  or, 

(5)  In  favor  of  the  wife  if  the  husband  has  wilfully  deserted  and  ab- 
sented himself  from  his  wife,  and  departed  from  the  territory  without 
intention  of  returning;  or, 

(6)  If  either  party  has  been  guilty  of  habitual  drunkenness  for  the 
space  of  one  year;  or, 

(7)  Has  been  guilty  of  extreme  cruelty;  or, 

(8)  Has  been  convicted  of  felony  or  other  infamous  crime. 
There  is  no  limited  divorce  in  Montana. 

NEBRASKA, 

(Consolidated  1893.) 

Absohjte  Divorce. 
(1)  When  adultery  has  been  committed  by  any  husband  or  wife. 
(3)  When  one  of  the  parties  was  physically  incompetent  at  the  time 
of  the  marriage. 

(3)  When  one  of  the  parties  has  been  sentenced  to  imprisonment  in 
any  prison,  jail  or  house  of  correction  for  three  years  or  more;  and,  no 
pardon  granted  after  a  divorce  for  this  cause  shall  restore  such  party 
to  his  or  her  conjugal  rights. 

(4)  When  either  party  shall  wilfully  abandon  the  other  without  just 
cause  for  the  term  of  two  years. 

(5)  When  the  husband  or  wife  shall  have  become  an  habitual  drunkard. 

(6)  When  either  party  shall  be  sentenced  to  imprisonment  for  life, 
and  no  pardon  shall  effect  a  decree  for  that  cause  rendered. 

(7)  Extreme  cruelty,  whether  practiced  by  using  personal  violence  or 
by  other  means. 

(8)  Utter  desertion  of  either  party  for  the  term  of  two  years. 

(9)  In  favor  of  the  wife,  when  the  husband,  being  of  sufficient  ability 
to  provide  suitable  maintenance  for  her,  shall  grossly  or  wantonly  and 
cruelly  refuse  or  neglect  so  to  do. 

Limited  Divorce. 
For  the  last  three  causes  limited  divorce  may  also  be  decreed, 

NEVADA. 

(General  Statutes  1885.) 

Absolute  Divorce. 
(1)  Impotency  at  the  time  of  the  marriage,  continuing  to  the  time  of 
the  divorce. 


1040  DrVOKCE   STATUTES. 

(2)  Adultery  since  the  marriage  remaining  nnforgiven. 

(3)  Wilful  desertion  at  any  time  of  either  party  by  the  other  for  the 
period  of  one  year. 

(4)  Conviction  of  felony  or  infamous  crime. 

(5)  Habitual  gross  drunkenness,  contracted  since  marriage,  of  either 
party,  which  shall  incapacitate  such  party  from  contributing  his  or  her^ 
share  to  the  support  of  the  family. 

(6)  Extreme  cruelty  in  either  party. 

(7)  Neglect'of  the  husband  for  one  year  to  provide  the  common  neces- 
saries of  life,  when  such  neglect  is  not  the  result  of  poverty  on  the  part 
of  the  husband,  which  he  could  not  avoid  by  ordinary  industry. 

There  is  no  limited  divorce  in  Nevada. 

NEW  HAMPSHIRE, 
(General  Laws  1878.) 

Absolute  Divorce. 

(1)  Impotency  of  either  party. 
(3)  Adultery  of  either  party. 

(3)  Extreme  cruelty  of  either  party  to  the  other. 

(4)  Conviction  of  either  party  of  crime  punishable  in  this  -state  with 
imprisonment  for  more  than  one  year,  and  actiial  imprisonment  under 
such  conviction. 

(5)  When  either  party  has  so  treated  the  other  as  seriously  to  injure 
health. 

(6)  When  either  party  has  so  treated  the  other  as  seriously  to  endan- 
ger reason. 

(7)  When  either  party  has  been  absent  three  years  together  and  has 
not  been  heard  of. 

(8)  When  either  party  is  an  habitual  drunkard,  and  has  been  such 
for  three  years  together. 

(9)  When  either  party  has  joined  any  religious  sect  or  society  which 
professes  to  believe  the  relation  of  husband  and  wife  unlawful,  and  re- 
fused to  cohabit  with  the  other  for  six  months  together. 

(10)  When  either  party,  without  sufficient  cause  and  without  the  con- 
sent of  the  other,  has  abandoned  and  refused  for  three  years  together 
to  cohabit  with  the  other. 

(11)  When  the  husband  has  willingly  absented  himself  from  the  wife 
for  three  years  together  without  making  suitable  provision  for  her  sup- 
port and  maintenance. 

(12)  When  the  wife  of  any  citizen  has  willingly  absented  herself  from 
her  husband  without  his  consent  for  three  years  together. 

(13)  When  the  wife  of  any  citizen  has  gone  to  reside  beyond  the  limits 
of  this  state,  and  remained  absent  and  separate  from  her  husband  ten 


CAUSES   FOE   DIVOEOE.  1041 

years  together  without  his  consent  and  without  returning  to  claim  her 
marriage  rights. 

(14)  When  the  wife  of  any  alien  or  citizen  of  another  state  living 
^separate  has  resided  in  this  state  for  three  years  together,  her  husband 
having  left  the  United  States  with  the  intention  of  becoming  a  citizen 
of  some  foreign  country,  and  not  having  during  that  period  come  into 
this  state  and  claimed  his  marital  rights,  and  not  having  made  suitable 
iprovision  {or  his  wife's  support  and  maintenance. 

There  is  no  limited  divorce  in  New  Hampshire. 

NEW  JERSEY. 
(EeTision  1886.) 

Absolute  Divoeob. 

(1)  Where  the  parties  are  within  the  degrees  prohibited  by  law;  and 

(2)  In  case  of  adultery  in  either  of  the  parties;  and,  also, 

(3)  For  wilful,  continuecj  and  obstinate  desertion  for  the  term  of  two 
years.     (Amended  March  5,  1890;  April  1,  1887.) 

Limited  Divorce. 

(1)  For  extreme  cruelty  in  either  of  the  parties. 

A  divorce  from  bed  and  board  forever  may  be  granted  for — 

(1)  Desertioiu 

(3)  Adultery;  and  if  the  applicant  has  conscientious  scruples  against 
absolute  divorce,  the  court  may  at  its  discretion  deprive  the  guilty 
party  of  dower,  etc.    (Act  of  1891.) 

In  case  a  husband  shall  abandon  his  wife  and  refuse  or  neglect  to 
maintain  and  provide  for  her,  the  court  may  decree  support  and  main- 
itenance  to  the  wife  and  the  children  of  the  marriage. 

NEW  MEXICO. 

{Act  of  1887.) 

Absolute  Divokoe. 
(1)  Adultery. 
•{2)  Cruel  or  inhuman  treatment. 

(3)  Abandonment. 

(4)  Habitual  drunkenness. 

(5)  Neglect  on  the  part  of  the  husband  to  support  the  wife. 
There  is  no  limited  divorce  in  New  Mexico. 

NEW  YORK. 
(Annotated  Code  1888,  sees.  1756, 1762.) 

Absolute  Divoece. 

<1)  Adultery  of  either  party. 
66 


1042  DITOECE   STATUTES. 

LmiTED  Divorce. 

(1)  The  cruel  and  mhuman  treatment  of  the  plaintiff  by  the  defenif- 
ant. 

(3)  Such  conduct  on  the  part  ot  the  defendant  toward  the  plaintiff 
as  may  render  it  unsafe  and  improper  for  the  former  to  cohabit  -with 
the  latter. 

(3)  The  abandonment  of  the  plaintiff  by  the  defendant. 

(3)  When  the  wife  is  the  plaintiff,  the  neglect  or  refusal  of  the  de» 
fendant  to  provide  for  her. 


NORTH  CAROLINA. 

(Code  1883,  sec.  1285.) 

Absolute  Divorce. 

(1)  If  either  party  shall  separate  from  the  other  and  live  in  adultery, 

(2)  If  the  wife  shall  commit  adultery. 

(8)  If  either  party  at  the' time  of  marriage  was,  and  still  is,  naturally 
impotent. 

(4)  If  the  wife,  at  the  time  of  the  marriage,  be  pregnant,  and  the  hus- 
band be  ignorant  of  the  fact  of  such  pregnancy,  and  be  not  the  father 
of  the  child  with  which  the  wife  was  pregnant  at  the  time  of  the  mar- 
riage. 

(5)  If  the  husband  shall  be  indicted  for  a  felony  and  flee  the  state; 
and  does  not  return  within  one  year  from  the  time  the  indictment  is 
found.    (Act  of  1887.) 

(6)  If,  after  the  marriage,  the  wife  shall  wilfully  and  persistently 
refuse  for  twelve  months  to  allow  the  husband  to  have  sexual  inter- 
course with  her.    (Act  of  1889.) 

Limited  Divorce. 

(1)  If  either  party  shall  abandon  his  or  her  family;  or, 

(3)  Shall  maliciously  turn  the  other  out  of  doOrs;  or, 

(8)  Shall,  by  cruel  or  barbarous  treatment,  endanger  the  life  of  the 
other;  or,  . 

(4)  Shall  offer  such  indignities  to  the  person  of  the  other  as  to  render 
his  or  her  condition  intolerable  and  life  burdensome;  or, 

(5)  Shall  become  an  habitual  drunkard. 

The  facts  constituting  the  grounds  for  divorce  must  have  existed  for 
at  least  six  months  prior  to  the  institution  of  the  suit,  excfept  where- 
the  wife  is  the  plaintiff,  and  the  husband  is  removing,  or  about  to  re- 
move, his  property  and  effects  from  the  state,  whereby  she  may  be  dis- 
appointed in  her  alimony. 

The  statute  permits  the  wife  to  recover  alimony  without  divorce. 


CAUSES   FOE   DIVOEOB.  1043 

NORTH  DAKOTA. 
See  California  Code,  sec.  92.    See,  also,  page  1076. 

OHIO. 

(Compiled  Statutes  1886,  sec.  5689.) 

Absolute  Divorck 

(1)  That  either  party  had  a  husband  or  wife  living  at  the  time  of  the 
marriage  from  which  divorce  is  sought. 

(2)  Wilful  absence  of  either  party  from  the  other  for  three  years. 

(3)  Adultery. 

(4)  Impotency. 

(5)  Extreme  cruelty. 

(6)  Fraudulent  contract. 

(7)  Any  gross  neglect  of  duty. 

(8)  Habitual  drunkenness  for  three  yeara 

(9)  The  imprisonment  of  either  party  in  a  penitentiary  under  sen- 
tence thereto;  but  the  petition  for  divorce  under  this  clause  shall  be 
filed  during  the  imprisonment  of  the  adverse  party. 

(10)  The  procurement  of  a  divorce  without  the  state  by  a  husband  or 
wife,  by  virtue  of  which  the  party  who  procured  it  is  released  from  the 
obligations  of  the  marriage,  while  the  same  remain  binding  upon  the- 
other  party. 

There  is  no  limited  divorce  in  Ohio,  but  alimony  without  divorce 
may  be  granted  the  wife  for  any  of  the  following  causes: 

(1)  Adultery. 

(2)  Any  gross  neglect  of  duty. 

(3)  Abandonment  of  wife  without  good  cause. 

(4)  That  there  is  a  separation  in  consequence  of  ill-treatment  on  the 
part  of  the  husband,  whether  the  wife  is  maintained  by  the  husband 
or  not. 

(5)  Habitual  drunkenness. 

(6)  Sentence  to  and  imprisonment  in  a  penitentiary;  in  which  case 
the  application  must  be  made  while  the  husband  is  so  confined. 

OKLAHOMA- 
(Statutes  1893.) 

Absolute  Divoece. 

Sec.  664  The  district  court  may  grant  a  divorce  for  either  of  the 
following  causes: 

(1)  When  either  of  the  parties  had  a  prior  husbaiid  or  wife  living  at 
the  time  of  the  subsequent  marriage. 

(2)  Abandonment  for  one  year. 


1044  DIVOECE   STATUTES. 

(3)  Adultery. 

(4)  Impotency. 

(5)  When  the  wife,  at  the  time  of  the  marriage,  was  pregnant  by  an- 
other than  her  husband. 

(6)  Extreme  cruelty. 

(7)  Fraudulent  contract. 

(8)  Habitual  druntenness. 

(9)  Gross  neglect  of  duty. 

(10)  The  conviction  of  a  felony,  and  imprisonment  in  the  penitentiary 
therefor,  subsequent  to  the  marriage. 

Limited  Divorce. 

No  limited  divorces  are  granted,  but  the  wife  may  obtain  alimony 
without  divorce  for  any  of  the  above  causes  for  divorce  in  her  favor. 

OEEGON. 
(Hill,  Annotated  Laws,  sec.  495.) 

Absolute  Divorce. 

(1)  Impotency  existing  at  the  time  of  marriage  and  continuing  to 
the  commencement  of  the  suit. 
(3)  Adulteiy. 

(3)  Conviction  of  felony. 

(4)  Habitual  gross  drunkenness  contracted  since  marriage  and  con- 
tinuing for  one  year  prior  to  the  commencement  of  the  suit. 

(5)  Wilful  desertion  for  the  period  of  one  year. 

(6)  Cruel  and  inhuman  treatment;  or, 

(7)  Personal  indignities,  rendering  life  burdensome. 
There  is  no  limited  divorce  in  Oregon. 

PENNSYLVANIA. 
CBrightley's  Purdon's  Digest,  1883.) 

Absolute  Divorce. 

(1)  When  either  party,  at  the  time  of  the  contract,  was,  and  stiU  is, 
naturally  impotent  or  incapable  of  procreation;  or, 

(2)  That  he  or  she  hath  knowingly  entered  into  a  second  marriage  in 
violation  of  the  previous  vow  he  or  she  made  to  the  former  husband  or 
wife,  whose  marriage  is  still  subsisting;  or, 

(3)  That  either  party  shall  have  committed  adultery;  or, 

(4)  Wilful  and  malicious  desertion  and  absence  from  the  habitation 
of  the  other,  without  a  reasonable  cause,  for  and  during  the  term  and 
space  of  two  years;  or, 


CAUSES    FOE   DIVOEOE.  1045 

(5)  When  any  husband  shall  have,  by  cruel  and  barbarous  treatment, 
endangeredhis  wife's  life;  or, 

(6)  Offered  such  indignities  to  her  person  as  to  render  her  condition 
intolerable  and  life  bui-densome,  and  thereby  force  her  to  withdraw 
from  his  house  and  family. 

(7)  When  the  parties  are  within  the  degrees  of  consanguinity  or  af- 
finity according  to  the  table  established  by  law. 

(8)  Where  the  alleged  marriage  was  procured  by  fraud,  force  or  coer- 
cion, and  has  not  been  subsequently  confirmed  by  the  acts  of  the  in- 
jured party. 

(9)  Where  either  of  the  parties  shall  have  been  convicted  of  a  felony, 
and  sentenced  by  the  proper  court  either  to  the  county  prison  of  the 
proper  county,  or  to  the  penitentiary  of  the  proper  district,  for  any 
term  exceeding  two  years. 

(10)  Where  the  wife  shall  have;  by  cruel  and  barbarous  treatment, 
rendered  the  condition  of  her  husband  intolerable  or  life  burdensome. 

Absolute  Divokce  (to  the  wife). 

(Act  of  1893.) 

(1)  Adultery  committed  by  the  husband. 

(3)  Wilful  and  malicious  desertion  on  the  part  of  the  husband,  and 
absence  from  the  habitation  of  the  wife,  without  reasonable  cause,  for 
and  during  the  term  and  space  of  two  years. 

(3)  Where  any  husband,  by  cruel  and  barbarous  treatment,  endangered 
his  wife's  Ufe,  or  offered  such  indignities  to  her  person  as  to  render  her 
condition  intolerable  and  life  burdensome,  and  thereby  force  her  to 
withdraw  from  his  house  and  family. 

(4)  Where  it  shall  be  shown  to  the  court,  by  any  wife,  that  she  was 
formerly  a  citizen  of  this  commonweatli,  and  that,  having  intermarried 
with  a  citizen  of  any  other  state  or  any  foreign  country,  she  has  been 
compelled  to  abandon  the  habitation  and  domicile  of  her  husband  in 
such  other  state  or  foreign  country  by  reason  of  (the  above  causes,  1,  S 
and  3),  and  has  thereby  been  forced  to  retvirn  to  this  commonweath  in 
which  she  had  her  former  domicile. 

(The  wife  may  file  her  petition  for  divorce  on  the  ground  of  deser- 
tion, as  described  in  section  j2,  any  time  after  six  months  from  the  de- 
sertion; but  no  decree  shall  be  rendered  until  two  years  from  such 
desertion.) 

Limited  Divorce  (to  wife  only). 

(1)  When  any  husband  shall  maliciously  abandon  his  family;  or, 

(3)  Turn  his  wife  out  of  doors;  or, 

(3)  By  cruel  and  barbarous  treatment  endanger  her  life;  or 

(4)  Offer  such  indignities  to  her  person  as  to  render  her  condition  in- 
tolerable or  life  burdensome,  and  thereby  force  her  to  withdraw  from 
his  house  and  family. 

(5)  Adultery, 


1046  DIVOECE    STATUTES. 

RHODE  ISLAND. 

(Public  Statutes  1882,  ch.  167.) 

Absolute  Ditoecb. 

(1)  In  case  of  any  marriage  originally  void  or  voidable  by  law. 

(2)  Where  either  party  is  for  crime  deemed  to  be,  or  treated  as  if,  civ- 
illy dead. 

(3)  Where  either  party,  from  absence  or  other  circumstances,  may  be 
presumed  to  be  naturally  dead. 

(4)  Impotency. 

(5)  Adultery. 

(6)  Extreme  cruelty. 

(7)  Wilful  desertion  for  five  years  of  either  of  the  parties,  or  for  such 
desertion  for  a  shorter  period  of  time,  in  the  discretion  of  the  court. 

(8)  Continued  drunkenness. 

(9)  Neglect  or  refusal  on  the  part  of  the  husband,  being  of  sufficient 
ability,  to  provide  necessaries  for  the  subsistence  of  his  wife. 

(10)  Any  other  gross  misbehavior  and  wickedness  in  either  of  the  par- 
ties repugnant  to  and  in  violation  of  the  matriage  covenant. 

(11)  Whenever  in  the  trial  of  any  petition  for  divorce  from  the  bond 
of  marriage,  or  from  bed  and  board  and  future  cohabitation,  it  shall 
appear  that  the  parties  have  lived  separate  and  apart  from  each  other 
for  the  space  of  at  least  ten  years,  the  court,  on  motion  of  either  party, 
may  enter  a  decree  divorcing  both  parties  from  the  bond  of  marriage, 
and  may  make  provision  for  alimony.    (Act  of  1893.) 

Limited  Divoece. 

Limited  divorces,  imtil  the  parties  maybe  reconciled,  maybe  granted 
for  any  of  the  causes  for  which,  by  law,  a  divorce  from  the  bond  of 
marriage  may  be  decreed,  and  for  such  other  causes  as  may  seem  to 
require  the  same. 

SOUTH  DAKOTA. 
See  California  Code,  sec.  138.    See,  also,  page  1076. 

TENNESSEE. 
(Sees.  3306-3308,  Code  1884.) 

Absolute  Divoece. 

(1)  That  either  party,  at  the  time  of  the  contract,  was,  and  still  is, 
naturally  impotent  and  incapable  of  procreation. 

(3)  That  either  party  has  knowingly  entered  into  a  second  mar- 
riage, in  violation  of  a  previous  marriage  still  subsisting. 

(3)  That  either  party  has  committed  adultery. 


CAUSES    FOE   DIVOECB.  1047 

(4)  Wilful  or  malicious  desertion,  or  absence  of  either  party  without 
a  reasonable  cause  for  two  whole  years. 

(5)  Being  convicted  of  any  crime  which,  by  the  laws  of  the  state, 
renders  the  party  infamous. 

(6)  Being  convicted  of  a  crime  which,  by  the  laws  of  the  state,  is  de- 
clared to  be  a  felony,  and  sentenced  to  confinement  in  the  penitentiary. 

(7)  "When  either  party  has  attempted  the  life  of  the  other,  by  poison, 
or  any  other  means  showing  malice. 

(8)  Refusal  on  part  of  the  wife  to  remove  with  her  husband  to  this 
etate  witlaout  a  reasonable  cause,  and  wilfully  absenting  herself  from 
him  for  two  years. 

(9)  "When  the  woman  was  pregnant  at  the  time  of  the  marriage  by 
«,nother  person,  without  the  knowledge  of  the  husband. 

(10)  Habitual  drunkenness  of  either  party,  when  the  husband  or  wife 
ihas  contracted  the  habit  of  drunkenness  after  marriage. 

Limited  Divoece. 

To  wife  only  (or  absolute  divorce,  at  the  discretion  of  the  court): 
(1)  When  the  husband  is  guilty  of  cruel  and  inhuman  treatment;  or, 
(3)  Such  conduct  towards  his  wife  as  renders  it  unsafe  and  improper 
for  her  to  cohabit  with  him  and  be  under  his  dominion  and  control. 

(3)  When  he  has  offered  such  indignities  to  her  person  as  to  render 
her  condition  intolerable  and  thereby  forced  her  to  withdraw. 

(4)  When  he  has  abandoned  her;  or, 

(5)  Turned  her  out  of  doors  and  refused  or  neglected  to  provide  for 
her. 

TEXAS. 
CSaylea'  Civii  Statutes,  art.  2861.) 

Absolute  Divoece. 

(1)  When  either  the  husband  or  wife  is  guilty  of  excesses,  cruel  treat- 
ment or  outrages  towards  the  other,  if  such  ill-treatment  is  of  such  a, 
nature  as  to  render  their  living  together  insupportable. 

(3)  In  favor  of  the  husband  where  his  wife  shall  have  been  taken  in 
adultery;  or, 

(3)  Where  she  shall  have  voluntarily  left  his  bed  and  board  for  the 
■space  of  three  years  with  the  intention  of  abandonment. 

(4)  In  favor  of  the  wife  where  the  husband  shall  have  left  her  for 
three  years  with  the  intention  of  abandonment;  or, 

(5)  "Where  he  shall  have  abandoned  her,  and  lived  in  adultery  with 
^another  woman. 

(6)  In  favor  of  either  husband  or  wife,  when  the  other  shall  have 
been  convicted,  after  marriage,  of  a  felony  and  imprisoned  in  the  state 
►prison;  provided,  that  no  suit  for  divorce  shall  be  sustained  because  of 
i;he  conviction  of  either  party  for  felony  until  twelve  months  after  final 


1048  DITOEOE    STATUTES. 

judgment  of  conviction,  nor  then  if  the  governor  shall  have  pardoned 
the  convict;  provided  that  the  husband  has  not  been  convicted  on  the- 
testimony  of  the  wife,  nor  the  wife  on  the  testimony  of  the  husband. 
There  is  no  limited  divorce  in  Texas. 

UTAH. 
(Compiled  Laws  1888,  sec.  2602.) 

Absolute  Divorce. 

(1)  Impotency  of  the  defendant  at  the  time  of  marriage. 

(3)  Adultery  committed  by  the  defendant  subsequent  to  marriage. 

(3)  "Wilful  desertion  of  the  plaintiff  by  the  defendant  for  more  than' 
one  year. 

(4)  Wilful  neglect  of  the  defendant  to  provide  for  his  wife  the  com- 
mon necessaries  of  life. 

(5)  Habitual  drunkenness  of  the  defendant. 

(6)  Conviction  of  the  defendant  for  felony. 

(7)  Cruel  treatment  of  the  plaintiff  by  the  defendant  to  the  extent  ofr 
causing  great  bodily  injury  or  great  mental  distress  to  the  plaintiff. 

There  is  no  limited  divorce  in  Utah. 

VERMONT. 
(ReTised  Laws,  sec.  2362.) 

Absolute  Dtvoece. 

(1)  For  adultery  in  either  party. 

(3)  When  either  party  is  sentenced  to  confinement  to  hard  labor  in' 
the  state  prison  for  Ufe,  or  for  three  or  more  years,  and  is  actually  con- 
fined at  the  time.  And  no  pardon  granted  to  the  party  so  sentenced' 
shall  restore  such  party  to  his  or  her  conjugal  rights. 

(3)  For  intolerable  severity  in  either  party. 

(4)  For  wilful  desertion  for  three  consecutive  years. 

(5)  When  either  party  has  been  absent  for  seven  years,  and  not  heard' 
of  during  that  time. 

(6)  On  petition  of  the  wife  when  the  husband,  being  of  sufficient  pe- 
cuniary ability  to  provide  suitable  maintenance  for  her,  without  cause- 
grossly  or  wantonly  and  cruelly  refuses  or  neglects  so  to  do. 

There  is  no  limited  divorce  in  Vermont. 

VIRGINIA. 

CCode  1887,  sec.  2257.) 

Absolute  Divorce. 
(1)  Adultery. 

(3)  Natural  and  incurable  impotency  of  body  existing  at  the  time  o£^ 
entering  into  the  matrimonial  contract. 


CAUSES   FOK   DITOECE.  1049' 

(3)  Where  either  of  the  parties  is  sentenced  to  confinement  in  the 
penitentiary.  And  no  pardon  granted  to  the  party  so  sentenced  shall 
restore  such  party  to  his  or  her  conjugal  rights. 

(4)  Where  prior  to  the  marriage  either  party,  without  the  knowledge 
of  the  other,  has  been  convicted  of  an  infamous  offense. 

(0)  Where  either  party  charged  with  an  oflEense  punishable  with  death 
or  confinement  in  the  penitentiary  has  been  indicted,  is  a  fugitive  from 
justice,  and  has  been  absent  for  two  years. 

(6)  Where  either  party  wilfully  deserts  or  abandons  the  other  for  fiver 
years. 

(7)  To  the  husband  where,  at  the  time  of  the  marriage,  the  wife, 
without  the  knowledge  of  the  husband,  was  with  child  by  some  person 
other  than  the  husband;  or, 

(8)  Prior  to  such  marriage,  had  been,  without  the  knowledge  of  th& 
husband,  a  prostitute. 

Limited  Divorce. 

(1)  Cruelty. 

(2)  Eeasonable  apprehension  of  bodily  hurt. 

(3)  Abandonment  or  desertion.  When  a  divorce  from  bed  and  board 
has  been  decreed  for  this  cause  and  five  years  have  elapsed  since  aban- 
donment or  desertion  without  reconciliation,  the  court  may,  on  applica- 
tion of  the  injured  party,  decrea  a  divorce  from  the  bonds  of  matrimony, 

WASHINGTON. 
(Hill's  Annotated  Statutes  1891,  sec.  764.) 

Absolute  Divorce. 

(1)  When  the  consent  to  the  marriage  of  the  party  applying  for  the 
divorce  was  obtained  by  force  or  fraud,  and  there  has  been  no  subse- 
quent voluntary  cohabitation. 

(3)  For  adultery  on  the  part  of  the  wife  or  of  the  husband,  when  un- 
forgiven,  and  application  is  made  within  one  year  after  it  shall  come  ta 
his  or  her  knowledge. 

(3)  Impotency. 

(4)  Abandonment  for  one  year. 

(5)  Cruel  treatment  of  either  party  by  the  other;  or, 

(6)  Personal  iniquities  rendering  Ufe  burdensome. 

(7)  Habitual  drunkenness  of  either  party. 

(8)  Neglect  or  refusal  of  the  husband  to  make  suitable  provisions  for 
his  family. 

(9)  The  imprisonment  of  either  party  in  the  penitentiary,  if  com- 
plaint is  filed  during  the  term  of  such  imprisonment. 

(10)  Any  other  cause  deemed  by  the  court  sufficient,  and  when  the 
court  shall  be  satisfied  that  the  parties  can  no  longer  live  together. 


1050  DrVOECE    STATUTES. 

(11)  In  case  of  incurable  chronic  mania  or  dementia  of  either  party, 
having  existed  ten  years  or  more,  the  court  may,  in  its  discretion, 
jgrant  a  divorce. 

There  is  no  limited  divorce  in  Washington. 

WEST  VIRGINIA. 
(Code  1887,  ch.  64.) 

Aesoltjte  Divoeck 
(1)  Adultery. 

(3)  Natural  or  incurable  impotency  of  body,  existing  at  the  time 
of  entering  into  the  matrimonial  contract. 

(3)  Where  either  of  the  parties  is  sentenced  to  confinement  in  the 
penitentiary;  and  no  pardon  granted  to  the  person  so  sentenced  shall 
restore  such  party  to  his  or  her  conjugal  rights.. 

(4)  Where,  prior  to  marriage,  either  party,  without  the  knowledge  of 
the  other,  had  been  convicted  of  an  infamous  offense. 

(5)  Where  either  party  wilfully  abandons  or  deserts  the  other  for 
three  years. 

(6)  Where  at  the  time  of  the  marriage  the  wife,  without  the  knowl- 
«dg6  of  the  husband,  was  enceinte  by  some  person  other  than  the  hus- 
band; or, 

(7)  Where  the  wife,  prior  to  the  marriage,  had  been,  without  the 
knowledge  of  the  husband,  notoriously  a  prostitute;  or, 

(8)  Where  the  husband,  prior  to  such  marriage,  had  been,  without 
the  knowledge  of  the  wife,  notoriously  a  licentious  person. 

Limited  Divorce. 
(1)  Cruel  or  inhuman  treatment. 
(3)  Eeasonable  apprehension  of  bodily  hurt. 

(3)  Abandonment.  i 

(4)  Desertion. 

(5)  Where  either  party  after  marriage  becomes  an  habitual  drunkard. 

WISCONSIN. 
CEevised  Statutes  1878,  sec.  2356.) 

Absolute  Divorce. 

§  23S5.  When  either  party  shall  be  sentenced  to  imprisonment  for 
life,  the  marriage  shall  be  thereby  absolutely  dissolved,  without  any 
judgment  of  divorce  or  other  legal  process;  and  no  pardon  granted  to 
the  party  so  sentenced  shall  restore  such  party  to  his  or  her  conjugal 
rights.    (See  interpretation  of  this  statute  in  sec.  366.) 

(1)  Adultery. 

(2)  Impotency. 


CAUSES    FOR   DIVOECE.  1051 

(3)  When  either  party  subsequent  to  the  marriage  has  been  sentenced 
to  imprisonment  for  three  years  or  more;  and  no  pardon  granted  after 
divorce  for  this  cause  shall  restore  the  party  sentenced  to  his  or  her 
conjugal  rights. 

(4)  The  wilful  desertion  of  one  party  by  the  other  for  the  term  of  one 
year  next  preceding  the  commencement  of  the  action. 

(5)  When  the  treatment  of  either  party  by  the  other  has  been  cruel 
and  inhuman,  whether  practiced  by  using  personal  violence  or  by  any 
other  means;  or, 

(6)  When  the  wife  shall  be  guilty  of  like  cruelty  to  her  husband  or 
be  given  to  intoxication. 

(7)  Where  the  husband  or  wife  shall  have  been  an  habitual  drunkard 
for  the  space  of  one  year  immediately  preceding  the  commencement  of 
the  action. 

(8)  Whenever  the  husband  and  wife  sbaU  have  voluntarily  lived  en- 
tirely separate  for  the  space,  of  five  years  next  preceding  the  com- 
mencement of  the  action,  a  divorce  may  be  granted  at  the  suit  of 
either  party. 

Limited  Divoece  (or  absolute  at  discretion  of  the  court). 

(1)  For  the  fourth,  fifth,  sixth  and  seventh  causes  above  specified. 

(2)  For  extreme  cruelty  of  either  party. 

(3)  On  the  complaint  of  the  wife,  when  the  husband,  being  of  suffi- 
cient ability,  shall  refuse  or  neglect  to  provide  for  her;  or, 

(4)  When  his  conduct  toward  her  is  such  as  may  render  it  unsafe  and 
improper  for  her  to  live  with  him. 

WYOMING. 

CKe-rised  Statutes  1887,  see.  1571.) 

Absolute  Divorce. 

(1)  When  adultery  has  been  committed  by  any  husband  or  wife. 

(2)  When  one  of  the  parties  was  physically  incompetent  at  the  time 
of  the  marriage,  and  the  same  has  continued  to  the  time  of  the  divorce. 

(3)  When  one  of  the  parties  has  been  convicted  of  a  felony  and  sen- 
tenced to  imprisonment  therefor  in  any  prison,  and  no  pardon  granted 
after  divorce  for  this  cause  shall  restore  the  party  sentenced  to  his  or 
her  conjugal  rights. 

(4)  When  either  party  has  wilfully  deserted  the  other  for  the  term  of 
one  year. 

(5)  When  the  husband  or  wife  shall  have  become  an  habitual  drunk- 
ard, 

(6)  When  one  of  the  parties  has  been  guilty  of  extreme  cruelty  to 
the  other. 


1052  DITOKCE    STATUTES. 

(7)  "When  the  husband  for  the  period  of  one  year  has  neglected  to 
provide  the  common  necessaries  of  life,  when  such  neglect  is  not  the 
result  of  poverty  on  the  part  of  the  husband,  which  he  could  not  avoid 
by  ordinary  industry. 

(8)  When  either  party  shall  offer  such  indignities  to  the  other  as 
shall  render  his  or  her  condition  intolerable. 

(9)  When  the  husband  shall  be  guilty  of  such  conduct  as  to  consti- 
tute him  a  vagrant  within  the  meaning  of  the  law  respecting  vagrancy. 

(10)  When,  prior  to  the  marriage,  either  party  shaU  have  been  con- 
victed of  a  felony  or  infamous  crime  in  any  state,  territory  or  count[r]y 
without  knowledge  on  the  part  of  the  other  party  of  such  fact  at  the 
time  of  such  marriage. 

(11)  When  the  intended  wife  at  the  time  of  contracting -marriage,  or 
at  the  time  of  the  solemnization  thereof,  shall  have  been  pregnant  by 
any  other  man  than  her  intended  husband,  and  without  his  knowledge 
at  the  time  of  such  solemnization. 

There  is  no  limited  divorce  in  Wyoming. 


DOMICILE    OF   PARTIES.  1053 


DOMICILE  OF  PARTIES. 

ALABAMA. 
(Civil  Code  1886.) 

§  2328.  No  bill  can  be  filed  for  a  divorce  on  the  ground  of  voluntary 
abandonment,  unless  the  party  applying  therefor,  whether  husband  or 
wife,  has  bona  ftde  been  a  resident  of  the  state  for  three  years  next 
before  the  filing  of  tie  bill,  which  must  be  alleged  in  the  bill  and 
proved. 

§  2329.  Bills  for  divorce  may  be  filed  in  the  chancery  district  in  which 
the  defendant  resides,  or  in  the  district  in  which  the  parties  resided 
when  the  separation  occurred;  if  the  defendant  is  a  non-resident,  then 
in  the  district  in  which  the  other  party  to  the  marriage  resides. 

§  2330.  When  the  defendant  is  a  non-resident,  the  other  party  to  the 
marriage  must  have  been  a  bona  fide  resident  of  this  state  for  one  year 
next  before  the  filing  of  the  bill,  which  must  be  alleged  in  the  biU  and 
proved. 

ARIZONA. 

.(Eevised  Statutes  1887.) 

§  2112.  No  suit  for  divorce  from  the  bonds  of  matrimony  shall  be 
maintained  in  the  courts  unless  the  complainant  for  such  divorce  shall, 
at  the  time  of  exhibiting  his  or  her  complaint,  be  an  actual  bona  fide 
resident  of  the  territory,  and  shall  have  resided  in  the  county  where 
ihe  suit  is  filed  six  months  next  preceding  the  filing  of  the,  suit. 

ARKANSAS. 
CDigest  1884.) 
§  2562.    The  plaintiff,  to  obtain  a  divorce,  must  allege  and  prove  in 
■addition  to  a  legal  cause  for  divorce: 

First.  A  residence  in  the  state  for  one  year  next  before  the  com- 
mencement of  the  action. 

Second.  That  the  cause  for  divorce  occurred  or  existed  in  this  state, 
or,  if  out  of  the  state,  either  that  it  was  a  cause  for  divorce  in  the  state 
where  it  occurred  or  existed,  or  that  the  plaintiff's  residence  was  then 
in  this  state. 

CALIFORNIA. 
(Amendment  of  1891.) 
§  128.    A  divorce  must  not  be  granted  unless  the  plaintiff  has  been  a 
resident  of  the  state  for  one  year,  and  of  the  county  in  which  the  ac- 
tion is  brought  three  months,  next  preceding  the  commencement  of 
the  action. 


1054  .  DIYOECE    STATUTES. 

COLORADO. 
(Session  Law  1893.) 

§  6.  No  person  shall  be  entitled  to  a  divorce  in  this  state  unless  such 
person  shall  have  been  a  bona  fide  resident  and  citizen  of  the  state  for 
one  year  prior  to  the  commencement  of  the  action,  which  fact  shall 
be  proven  by  the  evidence  of  at  least  one  credible  witness  other  than- 
the  plaintiff; 

Provided,  that  this  section  shall  not  affect  applications  for  divorce 
upon  the  grounds  of  adultery  or  extreme  cruelty,  where  the  offense- 
Tvas  committed  within  the  state;  • 

I^ovided,  further,  that  such  suit  shall  only  be  brought  in  the  county 
in  which  such  plaintiff  or  defendant  reside,  or  where  such  defendant, 
last  resided. 

CONNECTICUT. 
CGeneral  Statutes  1888.J 

§  2806.  If  the  plaintiff  shall  not  have  continuously  resided  in  this 
state  three  years  next  before  the  date  of  the  complaint,  it  shall  be  dis- 
missed, unless  the  cause  for  divorce  shall  have  arisen  subsequently  to 
the  removal  into  this  state,  or  unless  the  defendant  shaU  have  continu- 
ously resided  in  this  state  three  years  next  before  the  date  of  the  com- 
plaint, and  actual  service  shall  have  been  made  upon  him,  or  unless  the 
alleged  cause  is  habitual  intemperance  or  intolerable  cruelty,  and  the 
plaintiff  was  domiciled  in  this  state  at  the  time  of  the  marriage,  and 
before  bringing  the  complaint  has  returned  to  this  state  with  the  inteur 
tion  of  permanently  remaining. 

DAKOTA. 
See  North  Dakota  and  South  Dakota. 

FLORIDA. 
CRevised  Statutes  1891.) 
§  1478.    In  order  to  obtain  a  divorce,  the  complainant  must  have  re- 
sided two  years  in  the  state  of  Florida  before  filing  the  bilL 

GEORGIA. 
(Laws  1893  ) 
No  court  in  this  state  shall  grant  divorce  of  any  character  to  any 
person  or  persons  who  has  not  been  a  bona  fide  resident  of  the  state 
twelve  months  before  the  filing  of  said  application  for  divorce. 

IDAHO. 

(Revised  Statutes  1887.) 
§  2469.    A  divorce  must  not  be  granted  unless  the  plaintiff  has  been 
a  resident  of  the  territory  for  six  months  next  preceding  the  com- 
mencement of  the  action. 


DOMICILE    OF   PAETIE3.  1055 

ILLINOIS. 

(Starr's  Annotated  Statutes  1885.) 

§  3.  No  person  shall  be  entitled  to  a  divorce  in  pursuance  of  the  pro- 
visions of  this  act  who  has  not  resided  in  the  state  one  whole  year 
next  before  filing  his  or  her  bill  or  petition,  unless  the  offense  or  injury- 
complained  of  was  committed  within  this  state,  or  whilst  one  or  both- 
of  the  parties  resided  in  this  state. 

INDIANA. 

(Eevised  Statutes  1888.) 

§  1031.  Divorce  may  be  decreed  by  the  superior  and  circuit  courts  of 
this  state  on  petition  filed  by  any  person  who,  at  the  time  of  the  filing 
of  such  petition,  is  and  shall  have  been  a  bona  fide  resident  of  the  state 
for  the  last  two  years  previous  to  the  filing  of  the  same,  and  a  bona  fide 
resident  of  the  county  at  the  time  of  and  for  at  least  six  months  imme- 
diately preceding  the  filing  of  such  petition;  which  bona  fide  residence 
shall  be  duly  proven  by  such  petitioner  to  the  satisfaction  of  the  court 
trying  the  same,  by  at  least  two  witnesses  who  are  resident  freeholders- 
and  householders  of  the  state,  And  the  plaintiflE  shall,  with  his  peti- 
tion, file  with  the  clerk  of  the  court  an  affidavit  subscribed  and  sworn 
to  by  himself,  in  which  he  shall  state  the  length  of  time  he  has  been  a. 
resident  of  the  state,  and  stating  particularly  the  place,  town,  city  or 
township  in  which  he  has  resided  for  the  last  two  years  past,  and  stat- 
ing his  occupation,  which  shall  be  sworn  to  before  the  clerk  of  the- 
court  in  which  said  complaint  is  filed. 

IOWA. 

(McCHain's  Annotated  Statutes  1888.) 

§  3413.  Except  where  the  defendant  is  a  resident  of  this  state  served! 
by  personal  service,  the  petition  for  divorce,  in  addition  to  the  facts  on 
account  of  which  the  plaintiff  claims  the  relief  sought,  must  state  that 
the  plaintiff  has  been  for  the  last  year  a  resident  of  the  state,  specify- 
ing the  tovsTi  and  county  in  which  he  has  so  resided,  and  the  entire 
length  of  his  residence  therein,  after  deducting  aU  absences  from  the 
state;  that  he  is  now  a  resident  thereof;  that  such  residence  has  been 
in  good  faith  and  not  for  the  purpose  of  obtaining  divorce  only. 

KANSAS. 

§  640.  The  plaintiff  in  an  action  for  divorce  must  have  been  an  act- 
ual resident,  in  good  faith,  of  the  state,  for  one  year  next  preceding  the 
filing  of  the  petition,  and  a  resident  of  the  county  in  which  the  action. 
is  brought  at  the  time  the  petition  is  filed. 


1056  DIVORCE    STATUTES. 

KENTUCKY. 

§  4  Action  for  divorce  must  be  brought  in  the  county  where  the 
wife  usually  resides,  if  she  has  an  actual  residence  in  the  state;  if  not, 
then  in  the  county  of  the  husband's  residence;  and  no  such  action  shall 
"be  brought  by  one  who  has  not  been  a  continuous  resident  of  this  state 
for  a  year  next  before  its  institution;  nor  unless  the  party  coiuplaining 
had  an  actual  residence  here  at  the  time  of  the  doing  of  the  act  com- 
plained of,  shall  a  divorce  be  granted  for  anything  done  out  of  the 
state,  unless  it  was  also  a  cause  for  divorce  by  the  law  of  the  country 
where  the  act  was  done. 

MAINE. 

(Act  1893.) 
§1.  A  divorce  .  .  .  may  be  decreed,  .  .  .  in  the  county  where 
.either  party  resides  at  the  commencement  of  proceedings,  .  .  . 
provided  the  parties  were  married  in  this  state  or  cohabited  here  after 
marriage,  or  if  the  libelant  resides  here  when  the  cause  for  divorce  ac- 
crued, or  had  resided  here  in  good  faith  for  one  year  prior  to  the  com- 
mencem.ent  of  proceedings. 

MAEYLAND. 
(Public  General  Laws  1888.) 
§  35.  The  courts  of  equity  of  this  state  shall  have  jurisdiction  of  all 
applications  for  divorce;  and  any  person  desiring  a  divorce  shall  file 
his  or  her  bill  in  the  court,  either  where  the  party  plaintiff  or  defend- 
ant resides;  or,  if  the  party  against  whom  the  bill  is  filed  be  a  non- 
resident, then  such  bill  may  be  filed  in  the  court  where  the  plaintiff 
resides. 

MASSACHUSETTS. 
(Public  Statutes  1882.) 

§  4  Except  as  provided  in  the  foUowing  section,  no  divorce  shall  be 
decreed  if  the  parties  have  never  lived  together  as  husband  and  wife 
in  the  commonwealth;  nor  shall  a  divorce  be  decreed  for  a  cause  oc- 
curring in  another  state  or  country,  unless  before  such  cause  occurred 
the  parties  had  lived  together  as  husband  and  wife  in  the  common- 
wealth, and  one  of  them  lived  in  the  commonwealth  at  the  time  when 
the  cause  occurred. 

§  5.  When  the  libelant  has  resided  in  the  commonwealth  for  five 
years  next  preceding  the  filing  of  the  libel,  or,  if  the  parties  were  in- 
habitants of  the  commonwealth  at  the  time  of  the  marriage,  when  the 
libelant  has  been  such  an  inhabitant  for  three  years  next  preceding 
such  filing,  a  divorce  may  be  decreed  for  any  cause  allowed  by  law, 
whether  it  occurred  in  the  commonwealth  or  elsewhere,  unless  it  ap- 
pears that  the  libelant  has  removed  into  the  commonwealth  for  the 
purpose  of  obtaining  a  divorce. 


DOMICILE   OF   PAE'nES.  1057 

MICHIGAN. 
(Howell's  Annotated  Statutes  1882.) 
§  6239.  No  divorce  shall  be  granted  unless  the  party  exhibiting  the 
petition  or  bill  of  complaint  therefor  shall  have  resided  in  this  state 
one  year  immediately  preceding  the  time  of  exhibiting  such  petition 
or  bill;  or  unless  the  marriage  was  solemnized  in  this  state,  and  the 
complainant  shall  have  resided  in  this  state  from  the  time  of  such  mar- 
riage to  the  time  of  exhibiting  the  i>etition  or  biU. 

CAct  of  1887.) 
§  9.  No  divorce  shall  be  granted  unless  the  party  exhibiting  the  peti- 
tion or  bill  of  complaint  therefor  shall  have  resided  in  the  state  one 
year  .immediately  preceding  the  time  of  exhibiting  such  petition  or 
"bill,  or  unless  the  marriage  was  solemnized  in  the  state,  and  the  com- 
plainant shall  have  resided  in  this  state  from  the  time  of  such  marriage 
to  the  time  of  exhibiting  the  petition  or  biU;  and  when  the  cause  for 
divorce  occurred  out  of  this  state,  no  divorce  shall  be  granted  unless 
the  complainant  or  defendant  shall  have  resided  within  this  state  two 
years  next  preceding  the  filing  of  the  petition  or  bill;  and  no  proofs  or 
testimony  shall  be  taken  in  any  cause  until  four  months  after  the  filing 
of  such  petition  or  bill  for  divorce,  except  where  the  cause  for  divorce 
is  desertion,  or  when  the  testimony  is  taken  conditionally  for  the  pur- 
pose of  perpetuating  such  testimony. 

MINNESOTA. 

(Statutes  1878.) 
§  8.    No  divorce  shall  be  granted  unless  the  complainant  has  resided 
in  this  state  one  year  immediately  preceding  the  time  of  exhibiting  the 
complaint,  except  for  adultery  committed  while  the  complainant  was 
a  resident  of  this  state. 

MISSISSIPPI 

(Annotated  Statutes  1892.) 

§  1567.  The  jurisdiction  of  the  chancery  court  in  suits  for  divorce 
shall  be  confined  to  the  following  classes  of  cases: 

(a)  Where  both  parties  were  domiciled  within  this  state  when  the 
suit  was  commenced;  or, 

(6)  Where  the  complainant  was  domiciled  within  this  state  when 
the  suit  was  commenced  and  the  defendant  was  personally  served  with 
process  within  this  state;  or, 

(c)  Where  one  of  the  parties  was  domiciled  within  this  state  when  the 
action  was  commenced,  and  one  or  the  other  of  them  actually  resided 
within  this  state  for  one  year  next  preceding  the  commencement  of  the 

suit. 

67 


1058  DITOKCE    STATUTES. 

MISSOURL 

CElevised  Statutes  1889.) 

§  4503.  No  person  shall  be  entitled  to  a  divorce  from  the  bonds  of 
matrimony  who  has  not  resided  within  the  state  one  whole  year  next 
before  filing  of  the  petition,  unless  the  offense  or  injury  complained  of 
was  committed  within  this  state,  or  whilst  one  or  both  of  the  parties 
resided  within  this  state. 

MONTANA. 

§  1001.  No  person  shall  be  entitled  to  a  divorce  in  pursuance  of  the 
provisions  of  this  chapter  who  has  not  resided  in  this  territory  one 
whole  year  previous  to  filing  his  or  her  bill,  unless  the  offense  or  injury 
complained  of  was  committed  within  this  territory,  or  whilst  one  or 
both  of  such  parties  resided  in  this  territory. 

NEBRASKA. 
(Cobbey's  Statutes  1893.) 
§  1424  No  divorce  shall  be  granted  unless  the  complainant  shall  have 
resided  in  this  state  for  six  months  immediately  preceding  the  time  of 
filing  the  complaint,  or  unless  the  marriage  was  solemnized  in  this 
state,  and  the  applicant  shall  have  resided  therein  from  the  time  of 
marriage  to  the  time  of  filing  the  complaint. 

NEVADA. 
(Gteneral  Statutes  1885.) 
§  491.  Divorce  from  the  bonds  of  matrimony  may  be  obtained  by 
complaint  under  oath  to  the  district  court  of  the  county  in  which  the 
cause  therefor  shall  have  accrued;  or  in  which  the  defendant  shall  re- 
side or  be  found;  or  in  which  the  plaintiff  shall  reside,  if  the  latter  be 
either  the  county  in  which  the  parties  last  cohabited,  or  in  which  the 
plaiirtiff  shall  have  resided  six  months  before  the  suit  be  brought.  .  ,  . 

NEW  JERSEY. 

(Session  Laws  1889.) 
The  court  of  chancery  shall  have  jurisdiction  of  all  causes  of  divorce 
and  of  alimony  or  maintenance  by  this  act  directed  and  allowed;  pro- 
vided the  parties  complainant  and  defendant,  or  either  of  them,  were 
or  shall  be  inhabitants  of  this  state  at  the  time  of  the  injury,  desertion 
or  neglect  complained  of.  or  where  the  marriage  shall  have  been  solem- 
nized or  taken  place  within  this  state,  and  the ,  complainant  shall  have 
been  an  actual  resident  in  the  state  at  the  time  of  the  injury,  desertion 
or  neglect  complained  of,  and  at  the  time  of  exhibiting  the  bill;  or 
where  the  adultery  was  committed  in  this  state,  and  the  parties  com- 


DOMICILE    OF   PAETIES.  1059 

plainant  and  defendant,  or  either  of  them,  reside  in  this  state  at  the 
time  of  exhibiting  the  bill;  or  where  the  complainant  or  defendant 
shall  be  a  resident  of  this  state  at  the  time  of  filing  the  bill  of  complaint; 
and  the  complainant  or  defendant  shall  have  been  a  resident  of  this 
state  for  the  terra  of  two  years,  during  which  such  desertion  shall  have 
continued. 

NEW  MEXICO. 
(Compiled  Laws  1884.) 
§  2289.  Hereafter  no  person  shall  commence  any  action  for  divoi'ce 
in  any  court  of  this  territory  unless  such  person  has  been  a  bona  fide 
resident  of  the  territory  for  the  period  of  six  months.  Evidence  of 
such  residence,  satisfactory  to  the  judge  trying  the  case,  shall  be  re- 
quired by  such  judge  before  granting  any  judgment  of  divorce. 

NEW  YORK. 
(Annotated  Ctode  1888.) 
§  1756.    In  either  of  the  following  cases,  a  husband  or  a  wife  may 
maintain  an  action  against  the  other  party  to  the  marriage,  to  procure 
a  judgment  divorcing  the  parties  and  dissolving  the  marriage,  by  rea- 
son of  the  defendant's  adultery: 

1.  Where  both  parties  were  residents  of  the  state  when  the  oflfense 
was  committeil. 
8.  Where  the  parties  were  married  within  the  state. 

3.  Where  the  plaintiff  was  a  resident  of  the  state  when  the  offense 
was  committed,  and  is  a  resident  thereof  when  the  action  is  commenced. 

4.  Where  the  offense  was  committed  within  the  state,  and  the  injui-ed 
party,  when  the  action  is  commenced,  is  a  resident  of  the  state. 

NORTH  CAROLINA. 
(Code  1883.) 
§  1287.    The  plaintiff  in  a  complaint  seeking  either  divorce  or  alimony, 
or  both,  shall  file  with  his  or  her  complaint  an  affidavit    .    .    .    that 
complainant  has  been  a  resident  of  the  state  for  two  years  next  preced- 
ing the  filing  of  the  complaint. 

NORTH  DAKOTA. 

§  2578.  A  divorce  must  not  be  granted  unless  the  plaintiff  has,  in 
good  faith,  been  a  resident  of  the  territory  ninety  days  next  preceding 
the  commencement  of  this  action. 

OHIO. 

(Eevised  Statutes  1886.) 
§  5690.    The  plaintiff,  except  in  an  action  for  alimony  alone,  shall  have 
been  a  resident  of  the  state  at  least  one  year  before  filing  the  petition: 


1060  DIVOKCE    STATUTES. 

all  actions  for  divorce  or  fo*  alimony  shall  be  brought  in  the  county 
where  the  plaintiff  has  a  bona  fide  residence  at  the  time  of  filing  the 
petition,  or  in  the  county  where  the  cause  of  action  arose;  and  the 
court  shall  hear  and  determine  the  same,  whether  the  marriage  took 
place  or  the  cause  of  divorce  occurred  within  or  without  the  state. 

OKLAHOMA. 
(Code  18930 

§  665.  The  plaintiff  in  an  action  for  divorce  must  have  been  an  actual 
resident,  in  good  faith,  of  the  territor;^  for  ninety  days  next  preceding 
the  filing  of  the  petition,  and  a  resident  of  .the  county  in  which  the  ac- 
tion is  brought  at  the  time  the  petition  is  filed. 

OREGON. 
(Hill's  Annotated  Laws  1987.) 
§  497.  In  a  suit  for  the  dissolution  of  the  marriage  contract,  the 
plaintiff  therein  must  be  an  inhabitant  of  the  state  at  the  commence- 
ment of  the  suit  and  for  one  year  prior  thereto,  which  residence  shall 
be  sufficient  to  give  the  court  jurisdiction,  without  regard  to  the  place 
where  the  marriage  was  solemnized  or  the  cause  of  suit  arose. 

PENNSYLVANIA, 
(Laws  1891.)  I 

§  1.  Be  it  enacted,  etc.,  that  the  jurisdiction  conferred  in  and  by 
said  act  to  which  this  is  a  supplement  is  hereby  extended  to  all  cases 
of  divorce  from  the  bonds  of  matrimony  and  from  bed  and  board,  and 
for  the  causes  therein  mentioned,  where  it  shall  be  shown  to  the  court 
by  the  petition  of  any  wife,  that  she  was  formerly  a  citizen  of  this  com- 
monwealth, and  that,  having  intermarried  with  a  citizen  of  any  other 
state  or  any  foreign  country,  she  has  been  oompellfed  to  abandon  the 
habitation  and  domicile  of  her  husband  in  such  other  state  or  foreign 
country  by  reason  of  his  adultery  or  of  his  cruel  and  barbarous  treat- 
ment, or  of  such  indignities  to  her  person  as  to  render  her  condition 
intolerable  and  her  life  burdensome,  or  wilful  or  malicious  desertion 
and  absence  from  the  habitation  of  the  other  without  a  reasonable 
cause,  and  has  thereby  been  forced  to  return  to  her  former  domicile 
within  this  commonwealth:  Provided,  that  where  in  any  such  case 
personal  services  of  the  subpcena  cannot  be  made  upon  such  husband 
by  reason  of  his  non-residence  within  this  commonwealth,  the  court, 
before  entering  a  decree  of  divorce,  shall  require  proof  that,  in  addition 
to  the  publication  now  required  by  law,  notice  of  said  proceedings  has 
been  given  to  such  non-resident  husband  either  by  personal  service  or 
by  registered  letter  to  his  last  known  place  of  residence,  and  that  a 
full  opportunity  has  thereby  been  afforded  to  him  to  appear  and  defend 


DOMICILE    OF   PAE'HES.  1061 

in  said  suit:  And  provided  further,  that  no  application  for  such  divorce 
shall  be  made  unless  the  applicant  therefor  shall  be  a  citizen  of  this 
commonwealth  or  shall  have  actually  resided  therein  for  the  term  of 
one  year  prior  to  filing  her  petition,  as  provided  by  the  existing  laws  of 
this  commonwealth. 

RHODE  ISLAND. 
(Public  Statutes  1S82.) 
§  15.  Said  court  shall  have  no  cognizance  of  or  jurisdiction  over  any 
petition  for  the  same  or  either  of  the  same,  unless  the  petitioner  shall,  at 
the  time  of  preferring  such  petition,  be  a  domiciled  inhabitant  of  this 
state  and  have  resided  therein  for  a  period  of  one  year  next  before  the 
preferring  of  such  petition. 

SOUTH  DAKOTA. 
(Se-sioii  Laws  :893.) 
§  2578.  A  divorce  must  not  be  granted  unless  the  plaintiff  in  good 
faith  has  been  a  bana  fide  resident  of  the  state  of  South  Dakota  for  at 
least  six  months  next  preceding  the  commencement  of  the  action; 
and  in  no  case  shall  a  divorce  be  granted  without  personal  service  of 
the  summons  within  this  state,  or  personal  service  of  the  summons  and 
order  of  publication  in  case  of  a  non-resident  defendant,  until  the 
plaintiff  shall  have  been  a  bona  fide  resident  of  this  state  for  one  year 
next  preceding  the  granting  of  such  divorce. 

TENNESSEE. 
(Code,  M.  &  V.  1884.) 
§  3308.  A  divorce  may  be  granted  for  any  of  the  aforesaid  causes, 
though  the  acts  complained  of  were  committed  out  of  the  state,  or  the 
petitioner  resided  out  of  the  state  at  the  time,  no  matter  where  the 
other  party  resides,  if  the  petitioner  has  resided  in  this  state  two  years 
next  preceding  the  filing  of  the  petition. 

TEXAS. 
(Sayles'  Texas  Civil  Statutes  1888.) 
§  2863.  No  suit  for  divorce  from  the  bonds  of  matrimony  shall  be 
maintained  in  the  courts,  unless  the  petitioner  for  such  divorce  shall, 
at  the  time  of  exhibiting  his  or  her  petition,  be  an  actual  bona  fide  in- 
habitant of  the  state,  and  shall  have  resided  in  the  county  where  the 
suit  is  filed,  six  months  next  preceding  the  filing  of  the  suit. 

UTAH. 

(Compiled  Laws  1888.) 

§  2602.    Proceedings  in  divorce  shall  be  commenced  and  conducted 

in  the  manner  provided  by  law  for  proceedings  in  civil  cases,  except  as 

hereinafter  provided,  and  the  court  may  decree  a  dissolution  of  the 


1062  DIVOECE    STATUTES. 

marriage  contract  between  the  plaintiff  and  defendant  in  all  cases 
wherein  the  plaintiff,  for  one  year  next  prior  to  the  commencement  of 
the  proceedings,  shall  have  been  an  actual  and  bona  fide  resident  of  the 
county  within  the  jurisdiction  of  the  court. 

VERMONT. 
(Revised  Laws  1880.) 
§  2365.  The  libelant  petitioning  for  a  divorce  for  adultery  or  intol- 
erable severity  or  wilful  desertion,  when  the  cause  of  action  accrued 
without  the  state,  shall  have  been  an  inhabitant  of  the  state  two  years 
next  previous  to  the  bringing  of  the  petition,  and  of  the  county  where 
such  petition  is  preferred  one  year  next  previous  to  the  term  of  the 
court  to  which  the  petition  is  preferred, 

VIRGINIA. 
(Code  1887.) 
§  2359.  The  circuit  and"  corporation  courts,  on  the  chancery  side 
thereof,  shall  have  jurisdiction  of  suits  for  annulling  or  affirming  mar- 
riages and  for  divorces.  No  suit  for  annulling  a  marriage  or  for  divorce 
shall  be  maintainable  unless  one  of  the  parties  has  been  domiciled  in 
this  state  for  at  least  one  year  preceding  the  commencement  of  the 
suit;  nor  shall  any  suit  for  affirming  a  marriage  be  maintainable  unless 
one  of  the  parties  be  domiciled  in  this  state  at  the  time  of  bringing  such 
suit.  The  suit,  in  either  case,  shall  be  brought  in  the  county  or  corpo- 
ration in  which  the  parties  last  cohabited,  or  (at  the  option  of  the 
plaintiff)  in  the  county  or  corporation  in  which  the  defendant  resides, 
if  a  resident  of  this  state,  and  if  not  a  resident,  in  the  county  or  corpo- 
ration in  which  the  plaintiff  resides. 

WASHINGTON. 

(Hill's  Annotated  Statutes  1891.) 
§  766.    Any  person  who  has  been  a  resident  of  the  state  for  one  year 
may  file  his  or  her  complaint  for  a  divorce  or  decree  of  nullity  of  mai"- 
riage,  under  oath,  in  the  superior  court  of  the  county  where  he  or  she 
may  reside,  and  like  proceeding  shall  be  had  thereon  as  in  civil  cases. 

WEST  VIRGINIA. 
(Code  1887.) 
Ch.  64,  §  7.  The  circuit  court,  on  the  chancery  side  thereof,  shall  have 
jurisdiction  of  suits  for  annulling  or  afiSrming  marriages,  or  for  di- 
vorces. No  such  suit  shall  be  maintainable  unless  the  parties,  or  one 
of  them,  shall  have  resided  in  the  state  one  year  next  preceding  the 
time  of  bringing  such  suit.  The  suit  shall  be  brought  in  the  county  in 
which  the  parties  last  cohabited,  or  (at  the  option  of  the  plaintiff)  in 
the  county  in  which  the  defendant  resides,  if  a  resident  of  this  state; 
but  if  not,  then  in  the  county  in  which  the  plaintiff  resides. 


DOMICILE    OF   PAETIE8.  1063^ 

WISCONSIN. 
(Revised  Statutes  1878.) 
§  2339.  No  divorce  shall  be  granted  unless  the  plaintiff  shall  have  re- 
sided in  this  state  one  year  immediately  preceding  the  time  of  the  com- 
mencement of  the  action,  except  for  adultery  alleged  to  have  been 
committed  vs^hile  the  plaintiff  vs'as  a  resident  of  this  state ;  or  unless  the 
marriage  was  solemnized  in  this  state,  and  the  plaintiff  shall  have  re- 
sided therein  from  the  time  of  such  marriage  to  the  time  of  the  com- 
mencement of  the  action;  or  unless  the  action  be  brought  by  the  wife, 
and  the  husband  shall  have  resided  in  this  state  for  one  year  next  pre- 
ceding the  commencement  thereof. 

WYOMING. 

(Revised  Statutes  1887.) 

§  1573.  No  divorce  shall  be  granted  unless  the  plaintiff  shall  have  re- 
sided in  this  territory  for  six  months  immediately  preceding  the  time 
of  filing  the  petition;  or  unless  the  marriage  was  solemnized«in  this 
territory,  and  the  applicant  shall  have  resided  therein  from  the  time  of 
the  marriage  to  the  time  of  filing  the  petition. 


1064  DIVOECE    STATUTES. 


ENGLAND. 

(Statutes  20  &  21  Vict.,  oh.  85.) 

Causes  foe  Absolute  Divoece. 

§  37.  It  shall  be  lawful  for  any  husband  to  present  a  petition  to  the 
said  court,  praying  that  his  marriage  may  be  dissolved  on  the  ground, 
that  his  wife  has  since  the  celebration  thereof  been  guilty  of  adultery- 
and  it  shall  be  lawful  for  any  wife  to  present  a  petition  to  the  said 
court,  praying  that  her  marriage  may  be  dissolved,  on  the  ground  that 
since  the  celebration  thereof  her  husband  has  been  guilty  of  incestuous 
adultery,  or  of  bigamy  with  adultery,  or  of  rape,  or  of  sodomy  or  bes-- 
tiality,  or  of  adultery  coupled  with  such  cruelty  as  without  adultery 
would  have  entitled  her  to  a  divorce  a  mensa  et  thoro,  or  of  adultery 
coupled  with  desertion  without  reasonable  excuse  for  two  years  or  up- 
wards. 

And  every  such  petition  shall  state  as  distinctly  as  the  nature  of  the 
case  permits  the  facts  on  which  the  claim  to  have  such  marriage  dis- 
solved is  founded :  provided,  that  for  the  purposes  of  this  act  incestuous 
adultery  shaU.  be  taken  to  mean  adultery  committed  by  a  husband  with 
a  woman  with  whom  if  his  wife  were  dead  he  could  not  lawfully  con- 
tract marriage  by  reason  of  her  being  within  the  prohibited  degrees  of 
consanguinity  or  affinity. 

And  bigamy  shall  be  taken  to  mean  marriage  of  any  person,  being, 
married,  to  any  other  person  during  the  life  of  the  former  husband  or 
wife,  whether  the  second  marriage  shall  have  taken,  place  within  the 
dominions  of  her  majesty  or  elsewhere. 

Causes  foe  Judicial  Sepaeation. 

§  7.  No  decree  shall  hereafter  be  made  for  a  divorce  a  mensa  et  thoro;: 
but  in  all  cases  in  which  a  decree  for  a  divorce  a  mensa  et  thoro  might  now 
be  pronounced,  the  court  may  pronounce  a  decree  for  a  judicial  separa- 
tion, which  shall  have  the  same  force  and  the  same  consequence  as  a 
divorce  a  mensa  et  thoro  now  has. 

§  16.  A  sentence  of  judicial  separation  (which  shall  have  the  effect 
of  a  divorce  a  mensa  et  thoro  under  the  existing  law  and  such  other 
legal  effect  as  herein  mentioned)  may  be  obtained,  either  by  the  hus- 
band or  wife,  on  the  ground  of  adultery,  or  cruelty,  or  desertion  with- 
out cause  for  two  years  and  upwards. 

Adulteeee  a  Co-eespondent. 

§  28.  Upon  any  such  petition  presented  by  a  husband,  the  petitioner 
shall  make  the  alleged  adulterer  a  co-respondent  to  the  said  petition. 


ENGLAND.  106& 

unless  on  special  grounds  to  be  allowed  by  the  court  he  shall  be  excused 
from  so  doing;  and  on  every  petition  presented  by  a  wife  for  dissolu- 
tion of  marriage,  the  court,  if  it  sees  fit,  may 'direct  that  the  person  with 
whom  the  husband  is  alleged  to  have  committed  adultery  be  made  a 
respondent ;  and  the  parties  or  either  of  them  may  insist  on  having  the 
contested  matters  of  fact  tried  by  a  jury  as  hereinafter  mentioned.. 

When  Divorce  Refused. 

§  29.  Upon  any  such  petition  for  the  dissolution  of  a  marriage,  it  shall 
be  the  duty  of  the  court  to  satisfy  itself,  so  far  as  it  reasonably  can,  not 
only  as  to  the  facts  alleged,  but  also  whether  or  no  the  petitioner  has 
been  in  any  manner  accessory  to  or  conniving  at  the  adultery,  or  has 
condoned  the  same,  and  shall  also  inquire  into  any  counter-charge  which 
may  be  made  against  the  petitioner. 

§30.  In  case  the  court,  on  the  evidence  in  relation  to  any  such 
petition,  shall  not  be  satisfied  that  the  alleged  adultery  has  been  com- 
mitted, or  shall  find  that  the  petitioner  has  during  the  marriage  been 
accessory  to  or  conniving  at  the  adultery  of  the  other  party  to  the  mar- 
Tiage,  or  has  condoned  the  adultery  complained  of,  or  that  the  peti- 
tion is  presented  or  prosecuted  in  collusion  with  either  of  the  respond- 
ents, then  and  in  any  of  said  cases  the  court  shall  dismiss  the  said 
petition. 

§  31.  In  case  the  court  shall  be  satisfied  on  the  evidence  that  the 
case  of  the  petitioner  has  been  proved,  and  shall  not  find  that  the 
petitioner  lias  been  in  any  manner  accessory  to  or  conniving  at 
the  adultery  of  the  other  party  to  the  marriage,  or  has  condoned 
the  adultery  complained  of,  or  that  the  petition  is  presented  or  pros- 
ecuted in  collusion  with  ^ther  of  the  respondents,  then  the  court 
shall  pronounce  a  decree  declaring  such  marriage  to  be  dissolved: 
provided  always,  that  the  court  shall  not  be  bound  to  pronounce  such 
decree  if  it  shall  find  that  the  petitioner  has  during  the  marriage 
been  guilty  of  adultery,  or  if  the  petitioner  shall,  in  the  opinion  of  the 
court,  have  been  guilty  of  unreasonable  delay  in  presenting  or  pros- 
ecuting such  petition,  or  of  cruelty  towards  the  other  party  to  the 
marriage,  or  of  having  deserted  or  wilfully  separated  himself  or  her- 
self from  the  other  party  before  the  adultery  complained  of,  and 
without  reasonable  excuse,  or  of  such  wilfxil  neglect  or  misconduct  as 
has  conduced  to  the  adultery. 

Decree  Nisl 

§  7.  "  Every  decree  for  a  divorce  shall  in  the  first  instance  be  a  de- 
cree msi,  not  to  be  made  absolute  till  after  the  expiration  of  such 
time,  not  less  than  three  months  from  the  pronouncing  thereof,  as 
the  court  shall  by  general  or  special  order  from  time  to  time  direct; 
and  during  that  period  any  person  shall  be  at  liberty,  in  such  manner 


1066  DIVOECE    STATUTES. 

as  the  court  shall  by  general  or  special  order  in  that  behalf  from  time 
to  time  direct,  to  show  cause  why  the  said  decree  should  not  be  macte 
absolute  by  reason  of  the  Same  having  been  obtained  by  collusion,  or 
by  reason  of  material  facts  not  brought  before  the  court:  and  on  cause 
being  so  shown  the  court  shall  deal  with  the  case  by  making  the  decree 
absolute,  or  by  reversing  the  decree  nisi,  or  by  requiring  further  in- 
quiry, or  otherwise  as  justice  may  require." 

Intekvention  of  Queen's  Pkoctor. 

"  And,  at  any  time  during  the  progress  of  the  cause,  or  before  the  de- 
cree is  made  absolute,  any  person  may  give  information  to  her  majesty's 
proctor  of  any  matter  material  to  the  due  decision  of  the  case,  who 
may  thereupon  take  such  steps  as  the  attorney-general  may  deem  nec- 
essary or  expedient;  and  if  from  any  information  or  othei-wise  the  said 
proctor  shall  suspect  that  any  parties  to  the  suit  are  or  have  been  act- 
ing in  collusion  for  the  purpose  of  obtaining  a  divorce  contrary  to  the- 
justice  of  the  case,  he  may,  under  the  direction  of  the  attorney-general, 
and  by  leave  of  the  court,  intervene  in  the  suit,  alleging  such  case  of 
collusion,  and  retain  counsel  and  subpoena  witnesses  to  prove  it;  and 
it  shall  be  lawful  for  the  court  to  order  the  costs  of  such  counsel  and 
witnesses,  and  otherwise,  arising,  from  such  intervention,  to  be  paid  by 
the  parties  or  such  of  them  as  it  shall  see  fit,  including  a  wife  if  she 
have  separate  property;  and  in  case  the  said  proctor  shall  not  thereby 
be  fully  satisfied  his  reasonable  costs,  he  shall  be  entitled  to  charge 
and  be  reimbursed  the  difference  as  a  part  of  the  expense  of  his  of- 
fice." This  act  was,  by  its  terms.-to  continue  only  for  a  limited  period; 
but  it  was  made  perpetual  by  25  &  26  Vict.,  ch.  81.  By  29  &  30  Vict., 
<;h.  33,  §  3,  it  was  provided  that  "  no  decree  nisi  for  a  divorce  shall  be 
made  absolute  until  after  the  expiration  of  six  calendar  months  from 
the  pronouncing  thereof,  unless  the  court  shall,  under  the  power  now 
vested  in  it,  fix  a  shorter  time."  By  36  Vict.,  ch.  31,  these  several  pro- 
visions were  extended  to  suits  for  the  nullity  of  marriage. 

Ad  Interim  Oeders  and  Final  Bbcrees  Relating  to  Temporary 
Alimony,  Custody,  Maintenance  and  Education  op  Children. 

By  20  &  31  Vict.,  ch.  85,  §  35,  it  is  provided  that  in  any  suit  or  other 
proceeding  for  obtaining  a  judicial  separation  or  a  decree  of  nullity  of 
marriage,  and  on  any  petition  for  dissolving  a  marriage,  the  court  may 
from  time  to  time,  before  making  its  final  decree,  make  such  interim 
orders,  and  may  make  such  provision  in  the  final  decree,  as  it  may  deem 
just  and  proper  with  respect  to  the  custody,  maintenance  and  educa- 
tion of  the  children  the  marriage  of  whose  parents  is  the  subject  of 
such  suit  or  other  proceeding,  and  may,  if  it  shall  think  fit,  direct 
proper  proceedings  to  be  taken  for  placing  such  children  under  the  pro- 
tection of  the  court  of  chancery. 


ENGLAND,  1067 

Alimony  on  Dissolution  of  Mareiage. 

Section  32  of  the  same  act  provides  that  the  court  may,  if  it  shall 
think  fit,  on  any  such  decree,  order  that  the  husband  shall,  to  the  sat- 
isfaction of  the  court,  secure  to  the  wife  svich  gross  sum  of  money,  or 
such  annual  sum  of  money  for  any  term  not  exceeding  her  own  life, 
as,  having  regard  to  her  fortune,  if  any,  to  the  ability  of  the  husband, 
and  to  the  conduct  of  the  parties,  it  shall  deem  reasonable;  and  for  that 
purpose  may  refer  it  to  any  one  of  the  conveyancing  counsel  of  the 
court  of  chancery  to  settle,  and  approve  of  a  proper  deed  or  instru- 
ment to  be  executed  by  all  necessary  parties;  and  the  said  court  may 
in  such  case,  if  it  shall  see  fit,  suspend  the  pronouncing  of  its  decree 
until  such  deed  shall  have  been  duly  executed. 

And  upon  any  petition  for  dissolution  of  marriage  the  court  shall 
have  the  same  power  to  make  interim  orders  for  payment  of  money,  by- 
way of  alimony  or  otherwise,  to  the  wife,  as  it  would  have  in  a  suit 
instituted  for  judicial  separation. 

§  34  In  all  cases  in  which  the  court  shall  make  any  decree  or  order 
for  alimony,  it  may  direct  the  same  to  be  paid  either  to  the  wife  herself 
or  to  any  trustee  on  her  behalf,  to  be  approved  by  the  court,  and  may 
impose  any  terms  or  restrictions  which  to  the  court  may  seem  expedi- 
ent, and  may  from  time  to  time  appoint  a  new  trustee,  if  for  any  reason 
it  shall  appear  to  the  court  expedient  so  to  do. 

§  45.  In  any  case  in  which  the  court  shall  pronounce  a  sentence  of 
divorce  or  judicial  separation  for  adultery  of  the  wife,  if  it  shall  be  made 
to  appear  to  tlie  court  that  the  wife  is  entitled  to  any  property  either 
in  possession  or  reversion,  it  shall  be  lawful  for  the  court,  if  it  shall 
think  proper,  to  order  such  settlement  as  it  shall  think  reasonable  to  be 
made  of  such  property,  or  any  part  thereof,  for  the  benefit  of  the  in- 
nocent party,  and  of  the  children  of  the  marriage,  or  either  or  any  of 
them. 

By  33  &  33  Vict.,  ch.  61,  sec.  5,  the  court,  after  a  final  decree  of  nuUity 
of  marriage  or  dissolution  of  marriage,  may  inquire  into  the  existence 
of  any  ante-nuptial  or  post-nuptial  settlements  made  on  the  parties 
whose  marriage  is  the  subject  of  the  decree,  and  may  make  such  orders 
with  reference  to  the  application  of  the  whole  or  a  portion  of  the  prop- 
erty settled,  either  for  the  benefit  of  the  children  of  the  marriage  or  of 
their  respective  parents,  as  to  the  court  shall  seem  fit. 

Alimony  Wheee  the  Husband  Has  No  Property. 

The  act  29  &  30  Vict.,  ch.  82,  §  1,  empowers  the  court,  in  every  case 
where  a  decree  for  dissolution  of  marriage  isi  obtained  against  a  hus- 
band who  has  no  property  on  which  the  payment  of  a  gross  or  annual 
sum  of  money  can  be  secured  to  the  wife,  but  he  is  able,  nevertheless, 
to  make  a  monthly  or  weekly  payment  to  the  wife  during  their  joint 
lives,  to  make  an  order  on  the  husband  for  payment  to  the  wife  during 


1068  DIVOECE   STATUTES. 

their  joint  lives  of  such  monthly  or  weekly  sums  for  her  maintenance 
as  the  court  may  think  reasonable:  provided,  that  if  the  husband  after- 
wards from  any  cause  becomes  unable  to  make  such  payments,  it  shall 
be  lawful  to  discharge  or  modify  the  order,  or  temporarily  suspend  the 
same  as  to  the  whole  or  any  part  of  the  money  so  ordered  to  be  paid, 
and  again  to  revise  the  same  order,  wholly  or  in  part. 


CONSTEUCriVE    SEfiVICE.  1069 


STATUTES  RELATING  TO  CONSTRUCTIVE  SERVICE. 

ALABAMA. 
Notice  is  served  as  in  other  chancery  suits. 

ARIZONA. 
As  in  other  civil  cases. 

ARKANSAS. 
As  in  other  chancery  suits. 

COLORADO. 

(Session  Laws  1894.) 

§  3.  In  every  action  for  a  divorce,  personal  service  of  a  copy  of  the 
summons,  to  which  shall  be  attached  a  copy  of  the  complaint,  shall  be 
made  upon  the  defendant,  except  as  provided  in  section  4  hereof.  If 
such  service  shall  be  made  within  the  state  of  Colorado,  then  such  de- 
fendant shall  have  thirty  days  thereafter  within  which  to  appear  and 
plead  to  said  complaint;  if  the  defendant  be  not  within  the  state  of 
•Colorado,  then  personal  service  upon  such  defendant  of  a  copy  of  the 
summons  and  complaint  may  be  made  by  the  sheriff  of  the  county  in 
which  such  defendant  may  be  found,  and  the  return  of  such  sheriff, 
showing  such  personal  service,  shall  be  held  to  be  a  sufficient  service  to 
give  the  court  jurisdiction  in  such  case;  and  in  case  of  such  service  out- 
side of  the  state  of  Colorado,  such  defendant  shall  have  fifty  days  from 
the  date  of  such  service  within  which  to  appear  and  plead  to  such  com- 
plaint; and  in  aU  cases  the  time  within  which  such  appearance  must  be 
made  shall  be  stated  in  the  summons. 

§  4  In  any  case  in  which  a  party  has  committed  any  act  which  under 
the  terms  of  this  act  would  entitle  the  husband  or  wife  to  a  divorce, 
and  the  party  committing  such  act  has  left  the  state  of  Colorado,  and 
the  whereabouts  of  such  person  is  unknown  to  the  plaintiff,  the  plaint- 
iff may  file  an  application  to  the  court  to  make  service  upon  such  ab- 
sent party  by  publication;  such  application  shall  be  made  under  oath, 
and  shall  state  fully  and  in  detail  all  of  the  knowledge  of  the  plaintiff 
concerning  the  departure  of  such  absent  party,  and  shall  state  all  facts 
within  the  knowledge  of  the  applicant  which  might  assist  in  ascertain- 
ing the  address  of  such  absent  party.  The  court  in  which  such  appli- 
cation is  filed,  or  the  judge  thereof  in  vacation,  shall,  whenever  such 


1070  DIVOKCE    STATUTES. 

application  shall  be  heard,  carefully  examine  the  plaintiflf  and  such 
other  witnesses  as  may  be  produced,  in  order  to  determine  what  steps- 
shall  be  taken  to  notify  such  absent  defendant,  and  may  cause  copies- 
of  the  summons  to  be  sent  by  the  clerk,  together  with  letters  of  inquiry, 
to  any  and  all  places  as  the  court  may  determine.  And  the  court  shall 
also,  if  satisfied  of  the  good  faith  of  the  application,  cause  the  summons 
to  be  published  in  the  same  manner  and  with  like  effect  as  is  now  pro- 
vided by  law  for  the  publication  of  summons  in  cases  of  attachment 

CONNECTICUT. 

(General  Statutes  1888,) 

§  3804  On  all  such  complaints,  where  the  adverse  party  resides  out  of 
or  is  absent  from  this  state,  any  judge  or  clerk  of  the  supreme  court  of 
errors,  or  of  the  superior  court,  or  any  county  commissioner,  may,  in 
vacation,  make  such  order  of  notice  to  the  adverse  party  as  he  may 
deem  reasonable;  and  such  notice  having  been  given  and  duly  proved 
to  the  court,  it  may  hear  such  complaint  if  it  finds  that  defendant  has 
actually  received  notice  that  the  complaint  is  pending;  and  if  it  shall 
not  appear  that  the  defendant  has  had  such  notice,  the  court  shall 
order  such  notice  to  be  given  as  it  may  deem  reasonable,  and  continue 
the  complaint  until  the  order  has  been  complied  with. 

DELAWARE. 

(La-vrs  1893.) 

If  service  cannot  be  made  of  the  summons,  an  alias  summons  shall 
issue  to  the  next  term,  wl|ich  the  sheriff  shall  publish  for  (one)  month  in 
such  newspapers,  one  or  more,  as  he  shall  judge  best  for  giving  the  de- 
fendant notice,  and  such  proceedings  shall  then  be  had  as  are  provided 
for  in  case  of  service  of  the  summons,  either  with  or  without  the  de- 
fendant's appearance. 

DISTRICT  OF  COLUMBIA. 

If  it  shall  appear  by  the  affidavit  of  a  disinterested  witness  that  the 
defendant  is  a  non-resident  of  the  district,  or  has  been  absent  therefrom 
for  the  space  of  six  months,  the  court,  after  the  return  of  the  summons 
"  not  found,"  may  authorize  notice  of  the  pendency  of  the  petition  to 
be  given  by  publication  in  such  manner  as  shall  be  directed, 

FLORIDA. 

§  1482.  BiUs  for  divorce  may  be  brought  against  defendants  residing 
out  of  the  state,  and  service  shall  be  effected  upon  them  as  in  other 
oases  in  chancery. 


CONSTKUCTIV-E    SEKVICE.  1071 

GEORGIA. 

§  1717.    The  action  for  divorce  shall  be  by  petition  and  process  as  in 
ordinary  suits,  filed  and  served  as  in  other  cases,  unless  the  defendant ' 
be  a  non-resident  of  this  state,  when  service  shall  be  perfected  as  pre- 
scribed in  causes  of  equity. 

IDAHO. 
No  provision. 

ILLINOIS. 

§  6.  The  process,  practice  and  proceedings  under  this  act  shall  be  the 
same  as  in  other  cases  in  chancery. 

INDIANA. 

§  1036.  If  it  shall  appear  by  the  affidavit  of  a  disinterested  person 
that  the  defendant  is  not  a  resident  of  this  state,  the  clerk  shall  give 
notice  of  the  pendency  of  such  petition  by  publication  for  three  suc- 
cessive weeks  in  some  weekly  newspaper  of  general  circulation  pul> 
lished  in  such  county,  or,  if  there  be  no  such  paper,  then  in  one  published 
in  tills  state  nearest  to  the  county  seat  of  such  county:  Provided,  that 
the  plaintiff  shall,  in  case  such  notice  is  to  be  given  by  publication  as 
aforesaid,  before  the  same  is  given,  file  his  or  her  affidavit  with  the 
clerk,  stating  therein  the  residence  of  the  defendant,  if  such  residence 
be  known  to  the  plaintiff;  and  if  such  residence  be  unknown  to  the 
plaintiff,  such  affidavit  shall  so  state ;  and  in  case  such  affidavit  state 
the  residence  of  the  defendant,  the  clerk  shall  forward,  by  mail,  to  such 
defendant  the  number  of  the  paper  containing  such  notice,  with  the 
notice  marked. 

IOWA. 

§  3833.  Service  may  be  made  by  publication  (as  in  other  a<ctions) 
.  .  .  if  the  defendant  is  a  non-resident  of  the  state  of  Iowa  or  his 
residence  is  unknown. 

KANSAS. 

§  641.  The  petition  must  be  verified  as  true  by  the  affidavit  of  the 
plaintiff.  A  summons  may  issue  thereon,  and  shall  be  served,  or  publi- 
cation made,  as  in  other  cases.  When  service  by  publication  is  proper, 
a  copy  of  the  petition,  with  a  copy  of  the  publication  notice  attached 
thereto,  shall,  within  three  days  after  the  first  publication  is  made,  be 
inclosed  in  an  envelope  addressed  to  the  defendant  at  his  or  her  place 
of  residence,  postage  paid,  and  deposited  in  the  nearest  postoffice,  unless 
the  plaintiff  shall  make  and  file  an  affidavit  that  such  residence  is  un- 
known to  the  plaintiff,  and  cannot  be  ascertained  by  any  means  within 
the  control  of  the  plaintiff 


1072  DIVOKCE   STATUTES. 

LOUISIANA. 

CElevised  Code  1888.) 

§  141.  When  the  defendant  is  absent  or  incapable  of  acting  from  any 
cause,  an  attorney  shall  be  appointed  to  represent  him,,  against  whom, 
contradictorily,  the  suit  shall  be  prosecuted. 

MARYLAND. ' 

§  35.  The  same  process,  by  summons,  notice  or  otherwise,  shall  be 
had  to  procure  the  answer  and  appearance  of  a  defendant  as  is  had  in 
other  cases  in  chancery. 

MASSACHUSETTS. 
(Public  Statutes  1883.) 

§  9.  The  court,  justice  or  clerk  may  order  the  adverse  party  to  be 
summoned  to  appear  and  answer  at  the  court  having  jurisdiction  of  the 
cause,  by  the  publication  of  the  libel  or  of  the  substance  thereof,  with 
the  order  thereon,  in  one  or  more  newspapers  to  be  designated  in  the 
order,  or  by  delivering  to  such  party  an  attested  copy  of  the  libel  and 
a  summons,  or  in  such  other  manner  as  may  seem  most  proper  and 
eflfectual;  but  when  such  order  is  made  by  a  clerk,  the  court  or  any 
justice  thereof  may  order  such  additional  notice  to  be  given  as  may 
seem  proper. 

§  10  (amended  1890).  When  the  adverse  party  does  not  appear,  and 
the  notice  of  the  pendency  of  the  libel  is  considered  by  the  court  to  be 
defective  or  insufficient,  it  may  order  such  further  notice  as  it  may 
consider  proper,    .    .    . 

MINNESOTA. 

§  13.  Copies  of  the  summons  and  complaint  shall  be  served  on  the  de- 
fendant personally;  and  when  such  service  is  made  out  of  this  state  it 
may  be  proved  by  the  affidavit  of  the  person  making  the  same,  with 
the  certificate  of  the  clerk  of  the  court  of  the  county,  to  the  identity 
of  the  oiScer  taking  the  affidavit;  but  if  personal  service  cannot  well 
be  made,  the  court  may  order  service  of  summons  by  publication  as  in 
other  actions. 

MISSISSIPPL 

§  1569.  The  biU  must  be  filed  in  the  county  in  which  the  complainant 
resides,  if  the  defendant  be  a  non-resident  of  this  state  or  be  absent,  so 
that  process  cannot  be  served;  and  the  manner  of  making  such  parties 
defendants  so  as  to  authorize  a  decree  against  them  in  other  chancery 
cases  shall  be  observed. 


C0X8TKUCTIVE    SEEVICE.  1073 

MISSOURI 

§  4501.  .  .  .  Like  process  and  proceeding  shall  be  had  in  such 
•causes  as  are  had  in  other  civil  suits,  except  the  answer  of  defendant 
sbail  not  be  under  oath. 

MONTANA. 

§  1000.  .  .  .  Like  process,  practice  and  proceedings  shall  be  had  as 
•they  are  usually  had  in  other  cases  in  chancery. 

NEBRASKA. 

§  1436.  .  .  .  Where  personal  service  cannot  be  had,  service  by  pub- 
lication may  be  made  as  is  provided  by  law  in  other  cases  under  the 
'Code  of  Civil  Procedure. 

NEVADA. 

§  493.  If  the  defendant  is  not  a  resident  of  the  territory  or  cannot, 
for  any  cause,  be  personally  summoned,  the  court  or  judge,  in  vacation, 
may  order  notice  of  the  pendency  of  the  suit  to  be  given  in  such  man- 
ner and  during  such  time  as  shall  appear  most  likely  to  convey  a 
knowledge  thereof  to  the  defendant,  without  undue  expense  or  delay; 
and  if  no  such  order  shaU  be  made,  it  shall  be  sufficient  to  publish  such 
notice  in  a  weekly  newspaper,  printed  in,  or  nearest  to,  the  county  in 
which  the  suit  is  pending,  three  months  in  succession. 

NEW  HAMPSHIRE. 

§  5.  All  libels  for  divorce  shall  be  brought  in  the  county  in  which 
the  parties,  or  one  of  them,  Uve,  and  before  the  supreme  court  holden 
in  or  for  such  county;  and  such  notice  of  the  pendency  thereof  shall 
be  given  to  the  libelee,  personal  or  otherwise,  as  the  court  shall  order. 

NEW  JERSEY. 

§  13.  In  case  a  petition  as  aforesaid  shall  be  filed,  and  it  shall  be  made 
"to  appear,  by  affidavit  or  otherwise,  to  the  satisfaction  of  the  chancel- 
lor, that  such  defendant  is  out  of  this  state,  or  cannot  upon  due  in- 
quiry be  found  therein,  or  that  he  or  she  conceals  himself  or  herself 
within  this  state,  the  chancellor  may  thereupon,  by  order,  direct  such 
defendant  to  answer  the  said  petition  at  a  certain  day  therein  named, 
not  less  than  two  nor  more  than  six  months  from  the  date  of  such 
order,  which  order  shall,  within  twenty  days  thereafter,  be  served  on 
such  defendant  by  delivery  of  a  copy  thereof  to  him  or  her,  or  by  leav- 
ing it  at  his  or  her  dwelling-house  or  usual  place  of  abode,  or  be  pub- 
lished in  one  of  the  newspapers  printed  in  this  state,  and  designated  in 
•such  order,  and  continued  therein  for  five  weeks  successively,  at  least 
once  in  every  week,  and  shall  be  published  in  such  other  manner  as 
68 


1074  DIVOECE    STATUTES. 

the  particular  circumstances  of  the  case  may  require,  if  in  the  opinion' 
of  the  chancellor  any  other  or  further  publication  shall  be  necessary  j. 
and  in  case  such  defendant  shall  not  file  his  or  her  answer  within  the 
time  so  limited,  or  within  some  further  time  to  be  allowed  by  the' 
chancellor,  on  proof  of  due  service  or  publication  of  said  order  the  court 
may  order  and  direct  the  petitioner  to  produce  depositions  or  other  evi- 
dence  to  substantiate  and  prove  the  allegations  in  the  petition,  and  the 
said  petitioner  may  then  proceed  ex  parte,  and  bring  on  the  hearing  of 
said  cause. 

NEW  MEXICO. 

§  2383.  Service  of  process  in  actions  for  divorce,  by  publication,  caw 
only  be  made  after  obtaining  from  a  judge  of  the  supreme  court  am 
order  allowing  the  same.  The  afSdavit  or  affidavits  on  which  such 
order  is  asked  must  show  the  present  residence  of  the  defendant,  if 
known,  or  the  last  known  place  of  such  residence,  with  its  date  and  the 
efforts  made  to  ascertain  the  present  residence;  and  the  order  shall  di- 
rect, in  addition  to  the  publication  provided  by  law  in  the  case  of  non- 
resident defendants,  that  a  copy  of  the  summons  shall  be  mailed,  post- 
paid, to  the  present  or  last  known  place  of  residence  of  the  defendant, 
and  may  direct  such  other  means  of  bringing  the  action  to  the  knowl- 
edge of  the  defendant  as  to  the  judge  shall  seem  proper  under  the  cir- 
cumstances of  any  particular  case. 

NORTH  CABOLINA. 
Same  service  as  in  other  civil  actions. 

NORTH   DAKOTA. 
See  page  1087. 

OHIO. 

§  5093.  When  the  defendant  is  a  resident  of  this  state  the  clerk  shall 
issue  a  summons  directed  to  the  sheriff  of  the  county  in  which  he  or 
she  resides  or  is  found,  which,  together  with  a  copy  of  the  petition,  shall 
be  served  on  the  defendant  at  least  six  weeks  before  the  hearing  of  the- 
cause. 

§  5093.  Where  the  defendant  is  not  a  resident  of  the  state,  or  his  resi- 
dence is  unknown,  notice  of  the  pendency  of  the  action  must  be  given' 
by  publication  as  in  other  cases;  and  unless  it  be  made  to  appear  to  the 
court,  by  affidavit  or  otherwise,  that  his  residence  is  unknown  to  the 
plaintiff  and  could  not  with  reasonable  diligence  be  ascertained,  a  sum- 
mons and  a  copy  of  the  petition  shall  forthwith,  on  the  filing  of  the 
petition,  be  deposited  in  the  postofflce,  directed  to  the  defendant  at  his- 
place  of  business. 


CONSTllTJCTIVB    SEKTICB.  ■  1075 

OKLAHOMA. 

§  066.  The  petition  must  be  verified  as  true  by  the  affidavit  of  the 
plaintiff.  A  summons  may  issue  thereon,  and  shall  be  served,  or  publica- 
tion made,  as  in  other  cases.  When  service  by  publication  is  proper,  a 
copy  of  the  petition,  with  a  copy  of  the  publication  notice  attached 
thereto,  shall,  within  three  days  after  the  first  publication  is  made,  be 
inclosed  in  an  envelope  addressed  to  the  defendant  at  his  or  her  place 
of  residence,  postage  paid,  and  deposited  in  the  nearest  postoffloe,  unless 
the  plaintiff  shall  make  and  file  an  affidavit  that  such  residence  is  un- 
known to  the  plaintiff,  and  cannot  be  ascertained  by  any  means  within 
the  control  of  the  plaintiff. 

OREGON. 
No  provision. 

PENNSYLVANIA. 
(Brightley's  Purdon's  Digest,  614.) 
§  13.  .  .  .  If,  on  the  return  of  the  said  alias  subpCena,  proof  shall 
be  made  that  the  said  party  could  not  be  found  in  the  said  county,  the 
sheriff  of  the  same  shall  cause  notice  to  be  published  in  one  or  more 
newspapers  printed  within  or  nearest  to  the  said  county,  for  four  weeks 
successively,  prior  to  the  first  day  of  the  then  next  term  of  said  court, 
requiring  the  said  party  to  appear  on  the  said  day  to  answer  to  the  said 
complaint,  at  which  term,  or  any  subsequent  term,  the  same  proceed- 
ings shall  be  had  as  are  authorized  and  directed  by  the  second  section 
of  this  act. 

RHODE  ISLAND. 

§  17.  The  said  (supreme)  court  may,  by  general  rule  or  otherwise,  pre- 
scribe the  notice  to  be  given,  within  or  without  the  state,  on  such  peti- 
tions, and  may  issue  such  processes  as  may  be  necessary  to  carry  into, 
effect  all  powers  conferred  upon  them  in  relation  to  the  same. 

TENNESSEE. 

§  3312.  The  complainant,  upon  giving  security  for  costs,  shall  have' 
the  usual  process  to  compel  the  defendant  to  appear  and  answer  the 
bill;  or  it  may  be  taken  as  confessed,  as  in  other  chancery  cases;  and 
if  the  divorce  be  demanded  because  the  defendant  is  a  convict  confined 
in  the  penitentiary,  the  bill  may  be  taken  for  confessed,  upon  publica- 
tion, as  if  he  were  a  non-resident. 

§  3314.  If  a  woman  sue  for  divorce,  her  bill  or  petition  may  be  heard 
and  a  divorce  granted,  without  service  of  the  subpoena  or  publication, 
if  her  bill  was  filed,  and  subpoena  for  the  defendant  was  placed  in  the 
hands  of  the  sheriff  of  the  county  in  which  the  suit  is  instituted,  three 
months  before  the  time  when  the  subpoena  is  returnable;  but  the  offi- 
cer having  the  subpoena  shall  execute  it  if  he  can. 


1076  DI^'OKCE    STATUTES. 

TEXAS. 
As  in  other  civil  suits. 

UTAH. 
As  in  other  civil  suits. 

VERMONT. 

§  2373.  If  the  party  complained  of  is  without  the  state,  the  libelant 
may  file  his  libel  in  the  office  of  the  clerk  of  the  court,  in  the  county 
where  the  same  is  required  to  be  brought,  and  such  clerk  shall  issue  an 
order  stating  the  substance  of  the  libel  or  petition,  and  requiring  the 
adverse  party  to  appear  on  the  first  day  of  the  next  stated  term  of  the 
county  court  in  said  county  and  make  answer  to  such  libel  or  petition, 
which  order  the  libelant  shall  cause  to  be  published  in  such  newspapers 
as  is  directed  by  such  order  three  weeks  successively,  the  last  publica- 
tion to  be  at  least  six  weeks  previous  to  the  commencement  of  the  term 
at  which  such  libelee  is  required  to  appear ;  and  a  judge  of  the  supreme 
court  may  grant  to  a  party  to  a  libel  an  order  of  notice  by  publication, 
or  in  such  other  manner  as  he  judges  proper  or  effectual. 

VIRGINIA. 
As  in  other  suits  in  equity. 

"WASHINGTON. 

§  776.    The  practice  in  civil  actions  shall  govern  all  proceedings  in  the 
trial  of  actions  for  divorce,  except  that  trial  by  jury  is  dispensed  with. 

WEST  VIRGINIA. 
As  in  other  suits  in  equity. 

WISCONSIN. 
As  in  other  actions. 

WYOMING. 
As  in  civil  actions. 


CALIFOKNIA    CODE.  1077 


CALIFORNIA  CODE. 

Tor  law  of  Idaho,  see  sees.  83,  92, 128  note,  and  sec.  141. 

The  Code  of  North  and  South  Dakota  is  the  same  except  as  indicated  herein. 

Sec.  55.  Marriage  is  a  personal  relation  arising  out  of  a  civil  con- 
tract, to  which  the  consent  of  parties  capable  of  making  it  is  necessary. 
Consent  alone  will  not  constitute  marriage;  it  must  be  followed  by  a 
solemnization,  or  by  a  mutual  assumption  of  marital  rights  or  obliga- 
tions. 

Sec.  56.  Any  unmarried  male  of  the  age  of  eighteen  years  or  up- 
wards, and  any  unmarried  female  of  the  age  of  fifteen  years  or  upwards, 
and  not  otherwise  disqualified,  are  capable  of  consenting  to  and  con- 
summating marriage. 

Sec.  57.  Consent  to  and  subsequent  consummation  of  marriage  may 
be  manifested  in  any  form,  and  may  be  proved  under  the  same  general 
rules  of  evidence  as  facts  in  other  cases. 

Sec.  58.  If  either  party  to  a  marriage  be  incapable  from  physical 
causes  of  entering  into  the  marriage  state,  or  if  the  consent  of  either 
be  obtained  by  fraud  or  force,  the  marriage  is  voidable. 

Sec.  59.  Marriages  between,  parents  and  children,  ancestors  and  de- 
scendants of  every  degree,  and  between  brothers  and  sisters  of  the  half 
as  well  as  the  whole  blood,  and  between  uncles  and  nieces  or  aunts  and 
nephews,  are  incestuous  and  void  from  the  beginning,  whether  the  re- 
lationship is  legitimate  or  illegitimate. 

Sec.  60.  All  marriages  of  white  persons  with  negroes  or  mulattoes 
are  illegal  and  void. 

Sec.  61.  A  subsequent  marriage  contracted  by  any  person  during 
the  life  of  a  former  husband  or  wife  of  such  person  with  any  person 
other  than  such  former  husband  or  wife  is  illegal  and  void  from  the 
beginning,  unless: 

1.  The  former  marriage  has  been  annulled  or  dissolved. 

3.  Unless  such  former  husband  or  wife '  was  absent,  and  not  known 
to  such  person  to  be  living,  for  the  space  of  five  successive  years  imme- 
diately preceding  such  subsequent  marriage,  or  was  generally  reputed 
and  was  believed  by  such  person  to  be  dead  at  the  time  such  subsequent 
marriage  was  contracted,  in  either  of  which  cases  the  subsequent  mar- 
riage is  valid  until  its  nullity  is  adjudged  by  a  competent  tribunal. 

Sec.  63.  Neither  party  to  a  contract  to  marry  is  bound  by  a  promise 
made  in  ignorance  of  the  other's  want  of  personal  chastity,  and  either 
is  released  therefrom  by  unchaste  conduct  on  the  part  of  the  other 
unless  both  parties  participate  therein. 

Sec.  63.  All  marriages  contracted  without  this  state,  which  would 
be  valid  by  the  laws  of  the  country  in  which  the  same  were  contracted, 
are  valid  in  this  state. 


1078  DIVOEOE   STATUTES. 

Sec.  68.  Marriage  must  be  licensed,  solemnized,  authenticated  and 
recorded  as  provided  in  this  article;  but  non-compliance  with  its  pro- 
visions does  not  invalidate  any  lawful  marriage. 

Sec.  69.  AU  persons  about  to  be  joined  in  marriage  must  first  obtain 
a  license  therefor  from  the  county  clerk  of  the  county  in  which  the 
marriage  is  to  be  celebrated,  showing: 

1.  The  identity  of  the  parties. 

2.  Their  real  and  full  names  and  places  of  residence. 

3.  Their  ages. 

4.  If  the  male  be  under  the  age  of  twenty-one,  or  the  female  under 
the  age  of  eighteen  years,  the  consent  of  the  father,  mother  or  guard- 
ian, or  of  the  one  having  the  charge  of  such  person,  if  any  such  be 
given;  or  that  such  non-aged  person  has  been  previously,  but  is  not  at 
the  time,  married. 

For  the  purpose  of  ascertaining  these  facts,  the  clerk  is  authorized 
to  examine  j^rties  and  witnesses  on  oath,  and  to  receive  affidavits,  and 
he  must  state  such  facts  in  the  license.  If  the  male  be  under  the  age 
of  twenty-one  years,  or  the  female  be  under  the  age  of  eighteen,  and 
such  person  has  not  been  previously  married,  no  license  shall  be  issued 
by  the  clerk,  unless  the  consent,  in  writing,  of  the  parents  of  the  per- 
son under  age,  or  of  one  of  such  parents,  or  of  his  or  her  guardian,  or 
of  one  having  charge  of  such  person,  be  presented  to  him;  and  such 
consent  shall  be  filed  by  the  clerk;  provided,  that  the  said  clerk  shall 
not  issue  a  license  authorizing  the  marriage  of  a  white  person  with  a 
negro,  mtdatto  or  Mongolian. 

Sec.  70.  Marriage  may  be  solemnized  by  either  a  justice  of  the  su- 
preme court,  judge  of  the  superior  court,  justice  of  the  peace,  priest 
or  minister  of  the  gospel  of  any  denomination. 

Sec.  71.  No  particular  form  for  the  ceremony  of  marriage  is  re- 
quired, but  the  parties  must  declare,  in  the  presence  of  the  person 
solemnizing  the  marriage,  that  they  take  each  other  as  husband  and 
wife. 

Sec.  73.  The  person  solemnizing  a  marriage  njiust  first  require  the 
presentation  of  the  marriage  license;  and  if  he  has  any  reason  to  doubt 
the  correctness  of  its  statement  of  facts,  he  must  first  satisfy  himself 
of  its  correctness,  and  for  that  purpose  he  may  administer  oaths  and 
examine  the  parties  and  witnesses  in  like  manner  as  the  county  clerk 
does  before  issuing  the  license. 

Sec.  73.  The  person  solemnizing  a  marriage  must  niake,  sign,  and 
indorse  upon,  or  attach  to,  the  license,  a  certificate  showing: 

1.  The  fact,  time  and  place  of  solemnization;  and 

2.  The  names  and  places  of  residence  of  one  or  more  witnesses  to  the 
ceremony. 

Sec.  74  He  must,  at  the  request  of  and  for  either  party,  make  a 
csrtified  copy  of  the  license  and  certifica:te,  and  file  the  originals  with 
the  county  recorder  within  thirty  days  after  the  marriage. 


CALIFORNIA    CODE.  1079 

Sec.  75.  Persons  married  without  the  solemnization  provided  for 
m  section  70  must  jointly  make  a  declaration  of  marriage,  substantially 
showing: 

1.  The  names,  ages  and  residence  of  the  parties. 

3.  The  fact  of  marriage. 

3.  The  time  of  marriage. 

4.  That  the  marriage  has  not  been  solemnized. 

Sec.  76.  If  no  record  of  the  solemnization  of  a  marriage  heretofore 
•contracted  be  known  to  exist,  the  parties  may  join  in  a  written  decla- 
ration of  such  marriage,  substantially  showing: 

1.  The  names,  ages  and  residences  of  the  parties. 

2.  The  fact  of  the  marriage. 

3.  That  no  record  of  such  marriage  is  known  to  exist.  Such  declara- 
tion must  be  subscribed  by  the  parties  and  attested  by  at  least  three 
w^itnesses. 

Sec.  77.  Declarations  of  marriage  must  be  acknowledged  and  re- 
-corded  in  like  manner  as  grants  of  real  property. 

Sec.  78.  If  either  party  to  any  marriage  denies  the  same,  or  refuses 
to  join  in  a  declaration  thereof,  the  other  may  proceed,  by  action  in  the 
superior  court,  to  have  the  validity  of  the  marriage  determined  and  de- 
■clared. 

Sec.  79.  "When  unmarried  persons,  not  minors,  have  been  living  to- 
gether as  man  and  wife,  they  may,  without  a  license,  be  married  by 
any  clergyman.  A  certificate  of  such  marriage  must,  by  the  clergy- 
man, be  made  and  delivered  to  the  parties,  and  recorded  upon  the  rec- 
ords of  the  church  of  which  the  clergyman  is  a  representative.  No 
other  records  need  be  made. 

Sec.  80.  Either  party  to  an  incestuous  or  void  marriage  may  proceed, 
by  action  in  the  superior  court,  to  have  the  same  so  declared. 

Sec.  83.  A  marriage  may  be  annulled  for  any  of  the  following  causes, 
existing  at  the  time  of  the  marriage  [sec.  2450,  Code  of  Idaho,  is  the 
same] : 

1.  That  the  party  in  whose  behalf  it  is  sought  to  have  the  marriage 
annulled  was  under  the  age  of  legal  consent,  and  such  marriage  was 
contracted  without  the  consent  of  his  or  her  parents  or  guardian,  or 
person  having  charge  of  him  or  her:  unless,  after  attaining  the  age  of 
.consent,  such  party  for  any  time  freely  cohabited  with  the  other  as 
liusband  or  wife. 

3.  That  the  former  hiisband  or  wife  of  either  party  was  living,  and 
the  marriage  with  such  former  husband  or  wife  was  then  in  force. 

3.  That  either  party  was  of  unsound  mind,  unless  such  party,  after 
•coming  to  reason,  freely  cohabited  with  the  other  as  husband  or  wife. 

4.  That  the  consent  of  either  party  was  obtained  by  fraud,  unless 
such  party  afterward,  with  fuU  knowledge  of  the  facts  constituting  the 
fraud,  freely  cohabited  with  the  other  as  husband  or  wife. 


1080  DITOECE    STATUTES. 

5.  That  the  consent  of  either  party  was  obtained  by  force,  unless- 
such  party  afterwards  freely  cohabited  with  the  other  as  husband  or 
wife.  ,  , 

6.  That  either  party  was,  at  the  time  of  marriage,  physically  incapa- 
ble of  entering  into  the  married  state,  and  such  incapacity  continues,^ 
and  appears  to  be  incurable. 

Sec.  83.  An  action  to  obtain  a  decree  of  nullity  of  marriage,  for 
causes  mentioned  in  the  preceding  section,  must  be  commenced  within 
the  periods  and  by  the  parties  as  follows  [sec.  3453,  Code  of  Idaho]: 

1.  For  causes  mentioned  in  subdivision  1 :  By  the  party  to  the  mar- 
I'iage  who  was  married  under  the  age  of  legal  consent,  within  four 
years  after  arriving  at  the  age  of  consent;  or  by  a  parent,  guardian  or 
other  person  having  charge  of  such  non-aged  male  or  female,  at  any 
time  before  such  married  minor  has  arrived  at  the  age  of  legal  consent. 

2.  For  causes  mentioned  in  subdivision  3:  By  either  party  during  the 
life  of  the  other,  or  by  such  former  husband  or  wife. 

3.  For  causes  mentioned  in  subdivisions:  By  the  party  injured,  or 
relative  or  guardian  of  the  party  of  unsound  mind,  at  any  time  before 
the  death  of  either  party. 

4.  For  causes  mentioned  in  subdivision  4:  By  the  party  injured,  within, 
four  years  after  the  discovery  of  the  facts  constituting  the  fraud. 

5.  For  causes  mentioned  in  subdivision  5:  By  the  injured  party, 
within  four  years  after  the  marriage. 

6.  For  causes  mentioned  in  subdivision  6:  By  the  injured  party,, 
within  four  years  after  the  marriage. 

Sec.  84.  When  a  marriage  is  annulled  on  the  ground  that  a  former 
husband  or  wife  was  living,  or  on  the  ground  of  insanity,  children  be- 
gotten before  the  judgment  are  legitimate,  and  succeed  to  the  estate  of 
both  parents. 

Section  3555  of  the  code  of  North  Dakota  as  revised  by  act  of  1895, 
instead  of  the  above  section  reads  as  follows: 

■'When  a  marriage  is  annulled,  children  begotten  before  the  judg- 
ment are  legitimate,  and  succeed  to  the  estate  of  both  parents." 

Sec.  85.  The  court  must  award  the  custody  of  the  children  of  a 
marriage  annulled  on  the  ground  of  fraud  or  force  to  the  innocent  par- 
ent, and  may  also  provide  for  their  education  and  maintenance  out  of" 
the  property  of  the  guilty  party. 

Sec.  86.  A  judgment  of  nullity  of  marriage  rendered  is  conclusive 
only  as  against  the  parties  to  the  action  and  those  claiming  under 
them. 

Sec.  90.    Marriage  is  dissolved  only: 

1.  By  the  death  of  one  of  the  parties;  or, 

3.  By  the  judgment  of  a  court  of  competent  jurisdiction  decreeing  a< 
divorce  of  the  parties. 

Sec.  91.  The  effect  of  a  judgment  decreeing  a  divorce  is  to  restore- 
the  parties  to  the  state  of  unmarried  persons. 


CALIFOENIA   CODE.  1081 

Sec.  92.  Divorces  may  be  granted  for  any  of  the  following  causes- 
[sec.  2457,  Code  of  Idaho]: 

1.  Adultery. 

2.  Extreme  cruelty. 

3.  Wilful  desertion  [for  one  year,  see  sec.  107], 

4.  Wilful  neglect.     [Id.] 

5.  Habitual  intemperance.     [Id.] 

6.  Conviction  of  felonyi 

Sec.  93.  Adultery  is  the  sexual  intercourse  of  a  married  person  with 
a  person  other  than  the  offender's  husband  or  wife. 

Sec.  94.  Extreme  cruelty  is  the  infliction  of  grievous  bodily  injury 
or  grievous  mental  suffering  upon  the  other  by  one  party  to  the  mar- 
riage. 

Sec.  95.  Wilful  desertion  is  the  voluntary  separation  of  one  of  the- 
married  parties  from  the  other  with  intent  to  desert. 

Sec.  96.  Persistent  refusal  to  have  reasonable  matrimonial  inter' 
course  as  husband  and  wife,  when  health  or  physical  condition  does  not 
make  such  refusal  reasonably  necessary;  or  the  refusal  of  either  party 
to  dwell  in  the  same  house  with  the  other  party,  when  there  is  no  just 
cause  for  such  refusal,  is  desertior(. 

Sec.  97.  When  one  party  is  induced,  by  the  stratagem  or  fraud  of 
the  other  party,  to  leave  the  family  dwelling-place  or  to  be  absent,  and 
during  such  absence  the  offending  "party  departs  with  intent  to  desert 
the  other,  it  is  desertion  by  the  party  committing  the  stratagem  or 
fraud,  and  not  by  the  other. 

Sec.  98.  Departure  or  absence  of  one  party  from  the  family  dwelling- 
place,  caused  by  cruelty  or  by  threats  of  bodily  harm  from  which  dan- 
ger w^ould  be  reasonably  apprehended  from  the  other,  is  not  desertion 
by  the  absent  party,  but  it  is  desertion  by  the  other  party. 

Sec.  99.  Separation  by  consent,  with  or  without  the  understanding 
that  one  of  the  parties  will  apply  for  a  divorce,  is  not  desertion. 

Sec.  100.  Absence  or  separation,  proper  in  itself,  becomes  desertion 
whenever  the  intent  to  desert  is  fixed  during  such  absence  or  separation. 

Sec.  101.  Consent  to  a  separation  is  a  revocable  act,  and  if  one  of  the 
parties  afterwards,  in  good  faith,  seeks  a  reconciliation  and  restoration, 
but  the  other  refuses  it,  such  refusal  is  desertion. 

Sec.  103.  If  one  party  deserts  the  other,  and,  before  the  expiration  of 
the  statutory  period  required  to  make  the  desertion  a  cause  of  divorce, 
returns  and  offers  in  good  faith  to  fulfill  the  marriage  contract,  and 
solicits  condonation,  the  desertion  is  cured.  If  the  other  party  refuse 
such  offer  and  condonation,  the  refusal  shall  be  deemed  and  treated  a& 
desertion  by  such  party  from  the  time  of  refusal. 

Sec.  103.  The  husband  may  choose  any  reasonable  place  or  mode  of 
living,  and  if  the  wife  does  not  conform  thereto  it  is  desertion  on  the- 
part  of  the  husband  from  the  time  her  reasonable  objections  are  made- 
known  to  him. 


1082  DIVOECE    STATUTES. 

Sec.  104.  If  the  place  or  mode  of  living  selected  by  the  husband  is 
xinreasonably  and  grossly  unfit,  and  the  wife  does  not  conform  thereto, 
it  is  desertion  on  the  part  of  the  husband  from,  the  time  her  reasonable 
objections  are  made  known  to  him.  i 

Sec.  105.  Wilful  neglect  is  the  neglect  of  the  husband  to  provide  for 
Jiis  wife  the  common  necessaries  of  life,  he  having  the  ability  to  do  so; 
or  it  is  the  failure  to  do  so  by  reason  of  idleness,  profligacy  or  dissipation. 

Sec.  106.  Habitual  -intemperance  is  that  degree  of  intemperance 
^rom  the  use  of  intoxicating  drinks  which  disqualifies  the  person  a 
igreater  portion  of  the  time  from  properly  attending  to  business,  or 
-which  would  reasonably  inflict  a  course  of  great  mental  anguish  upon 
an  innocent  party. 

Sec.  3564.  Code  of  North  Dakota  as  revised  by  act  of  1895  instead  of 
the  above  section  reads  as  follows: 

"Habitual  intemperance  isthat  degree  of  intemperance  from  the  use 
of  intoxicating  drinks,  morphine,  opium,  chloral ,  or  other  narcotic 
4rugs,  which  disqualifies  the  person  a  greater  portion  of  the  time  from 
properly  attending  to  business,  or  which  would  reasonably  inflict  a 
course  of  great  mental  agony  upon  the  innocent  party." 

Sec.  107.    Wilful  desertion,  wilful  neglect  or  habitual  intemperance 
anust  continue  for  one  year  before  either  is  ground  for  divorce. 
Sec.  111.    Divorces  must  be  denied  upon  showing: 

1.  Connivance;  or, 

2.  Collusion;  or, 

.3.  Condonation;  or, 

4.  Recrimination;  or, 

5.  Limitation  and  lapse  of  time. 

Sec.  112.  Connivance  is  the  corrupt  consent  of  one  party  to  the  com- 
mission of  the  acts  of  the  other,  constituting  the  cause  of  divorce. 

Sec.  113.  Corrupt  consent  is  manifested  by  passive  permission,  with 
intent  to  connive  at  or  actively  procure  the  commission  of  the  acts 
oomplained  of. 

Sec.  114.  Collusion  is  an  agreement  between  husband  and  wife  that 
one  of  them  shall  commit,  or  appear  to  have  committed,  or  to  be  repre- 
sented in  court  as  having  committed,  acts  constituting  a  cause  of  di- 
vorce, for  the  purpose  of  enabling  the  other  to  obtain  a  divorce. 

Sec.  115.  Condonation  is  the  conditional  forgiveness  of  a  matrimo- 
nial offense  constituting  a  cause  of  divorce. 

Sec.  116.    The  following  requirements  are  necessary  to  condonations: 

1.  A  knowledge  on  the  part  of  the  condoner  of  the  facts  constituting 
(the  cause  of  divorce. 

2.  Reconciliation  and  remission  of  the  offense  by  the  injured  party. 

3.  Restoration  of  the  offending  party  to  all  marital  rights. 

Sec.  117.    Condonation  implies  a  condition  subsequent:  that  the  iox- 
Sgiving  party  must  be  treated  with  conjugal  kindness. 
,    Sec.  118.    Where  the  cause  of  divorce  consists  of  a  course  of  offen- 
sive conduct,  or  arises  in  case  of  cruelty  from  successive  acts  of  ill 


CALIFORNIA    CODE.  1083 

treatment  which  may,  aggregately,  constitute  the  oflelloe,  cohabita- 
tion, or  passive  endurance,  or  conjugal  kindness,  shall  not  be  evidence 
of  condonation  of  any  of  the  acts  constituting  such  cause,  unless  ac- 
companied by  an  express  agreement  to  condone. 

Sec.  119.  In  cases  mentioned  in  the  last  section,  condonation  can  be 
made  only  after  the  cause  of  divorce  has  become  complete  as  to  the 
acts  complained  of. 

Sec.  130.  A  fraudulent  concealment  by  the  condonee  of  facts  con- 
stituting a  different  cause  of  divorce  from  the  one  condoned,  and  exist- 
ing at  the  time  of  condonation,  avoids  such  condonation. 

Sec.  121.  Condonation  is  revoked  and  the  original  cause  of  divorce 
revived  — 

1.  When  the  condonee  commits  acts  constituting  a  like  or  other 
cause  of  divorce;  or, 

2.  When  the  condonee  is  guilty  of  great  conjugal  unkindness,  not 
amounting  to  a  cause  of  divorce,  but  sufficiently  habitual  and  gross  to 
show  that  the  conditions  of  condonation  had  not  been  accepted  in  good 
faith,  or  not  fulfilled. 

Sec.  123.  Recrimination  is  a  showing  by  the  defendant  of  any  cause 
of  divorce  against  the  plaintiff,  in  bar  of  the  plaintiff's  cause  of  divorce. 

Sec.  123.  Condonation  of  a  cause  of  divorce,  shown  in  the  answer  as 
a  recriminating  defense,  is  a  bar  to  such  defense,  unless  the  condona- 
tion be  revoked,  as  provided  in  section  121,  or  two  years  have  elapsed 
'  after  the  condonation,  and  before  the  accruing  or  completion  of  the 
cause  of  divorce  against  which  the  recrimination  is  shown. 

Sec.  124.     A  divorce  must  be  denied: 

1.  When  the  cause  is  adultery,  and  the  action  is  not  commenced 
within  two  years  after  the  commission  of  the  act  of  adultery,  or  after 
its  discovery  by  the  injured  party;  or, 

3.  When  the  cause  is  conviction  of  felony,  and  the  action  is  not  com- 
menced before  the  expiration  of  two  years  after  a  pardon,  or  the  ter- 
mination of  the  period  of  sentence. 

3.  In  all  other  cases  when  there  is  an  unreasonable  lapse  of  time  be- 
fore the  commencement  of  the  action. 

Sec.  135.  Unreasonable  lapse  of  time  is  such  a  delay  in  commencing 
the  action  as  establishes  the  presumption  that  there  has  been  conniv- 
ance, collusion  or  condonation  of  the  offense,  or  full  acquiescence  in 
the  same,  with  intent  to  continue  the  marriage  relation  notwithstand- 
ing the  commission  of  such  offense. 

Sec.  126.  The  presumptions  arising  from  lapse  of  time  may  be  re- 
butted by  showing  reasonable  groim.ds  for  the  delay  in  commencing 
the  action. 

Sec.  137.  There  are  no  limitations  of  time  for  commencing  actions 
for  divorce,  except  such  as  are  contained  in  section  124. 

Sec.  128.  A  divorce  must  not  be  granted  unless  the  plaintiff  has  been 
a  resident  of  the  state  for  one  year  and  of  the  county  in  which  the  ac- 


1084  DIVOECE    STATUTES. 

tion  is  brought  three  raonths  next  preceding  the  commencement  of  the 
action.     [Amended  by  Act  March  10,  1891.] 

[Sec.  3578  of  Code  of  Territory  of  Dakota,  adopted  by  South  Dakota,  as 
amended  by  Act  of  1893,  Session  Law  1893,  page  97,  requires  six  months' 
residence  of  plaintiff,  and  a  residence  of  one  year  where  the  defendant 
is  a  non-resident.] 

[See.  3578  of  Code  of  Territory  of  Dakota,  adopted  by  North  Dakota, 
provides  that  the  plaintiff  must  be  a  resident  of  the  territory  ninety 
days  next  preceding  the  commencement  of  the  action.] 

[Sec.  2469,  Code  of  Idaho,  is  the  same  as  North  Dakota.] 

Sec.  139.  In  actions  for  divorce  the  presumption  of  law  that  the 
domicile  of  the  husband  is  the  domicile  of  the  wife  does  not  apply. 
After  separation  each  may  have  a  separate  domicile,  depending  for 
proof  upon  actual  residence,  and  not  upon  legal  presumptions. 

Sec.  130.  No  divorce  can  be  granted  upon  the  default  of  the  defend- 
ant or  upon  the  uncorroborated  statement,  admission  or  testimony  of 
the  parties,  or  upon  any  statement  or  finding  of  fact  made  by  a  referee: 
but  the  court  must,  in  addition  to  any  statement  or  finding  of  the  ref- 
eree, require  proof  of  the  facts  alleged,  [and  such  proof,  if  not  taken 
before  the  court,  must  be  upon  written  questions  and  answers.] 

Section  3580  of  the  Code  of  North  Dakota  omits  that  poi'tion"  inclosed 
in  brackets. 

Sec.  136.  Though  judgment  of  divorce  is  denied,  the  court  may,  in 
an  action  for  divorce,  provide  for  the  maintenance  of  the  wife  and  her 
children,  or  any  of  them,  by  the  husband. 

Sec.  137.  When  an  action  for  divorce  is  pending,  the  court  may,  in 
its  discretion,  require  the  husband  to  pay,  as  alimony,  any  money  neces- 
sary to  enable  the  wife  to  support  herself  or  her  children,  or  to  prose- 
cute or  defend  the  action.  "When  the  husband  wilfully  deserts  the 
wife,  she  naay,  without  applying  for  a  divorce,  maintain  in  the  supei-ior 
court  an  action  against  him  for  permanent  support  and  maintenance 
of  herself,  or  of  herself  and  children.  During  the  pendency  of  such 
action  the  court  may,  in  its  discretion,  require  the  husband  to  pay,  as 
alimony,  any  money  necessary  for  the  prosecution  of  the  action,  and  for 
support  and  maintenance,  and  executions  may  issue  therefor,  in  the 
discretion  of  the  court.  The  final  judgment  in  such  action  may  be  en- 
forced by  the  court  by  such  order  or  orders  as,  in  its  discretion,  it  may 
from  time  to  time  deem  necessary,  and  such  order  or  orders  may  be 
varied,  altered  or  revoked  at  the  discretion  of  the  court. 

Sec.  138.  In  an  action  for  divorce  the  court  may,  before  or  after 
judgment,  give  such  direction  for  the  custody,  care  and  education  of 
the  children  of  the  marriage  as  may  seem  necessary  or  proper,  and  may 
at  any  time  vacate  or  modify  the  same. 

Sec.  139.  Where  a  divorce  is  granted  for  an  offense  of  the  husband, 
the  court  may  compel  him  to  provide  for  the  maintenance  of  the  chil- 
dren of  the  marriage,  and  to  make  such  suitable  allowance  to  the  wife 
for  her  support  during  her  life,  or  for  a  shorter  period,  as  the  court  may 


CALIFOENIA   CODE.  1085 

■deem  just,  having  regard  to  the  circumstances  of  the  parties  respect- 
ively; and  the  court  may,  from  time  to  time,  modify  its  orders  in  these 
respects.    [Sec.  2584,  Code  of  Dakota  Territory.] 

Sec.  140.  Tlie  court  may  require  the  husband  to  give  reasonable  se- 
curity for  providing  maintenance  or  making  any  payments  required 
under  the  provisions  of  this  chapter,  and  may  enforce  the  same  by  the 
appointment  of  a  receiver,  or  by  any  other  remedy  applicable  to  the 
case. 

Section  2585  of  the  Codes  of  North  and  South  Dakota  contains  the 
following  instead  of  sections  141-143,  and  146-148: 

"  But  when  the  wife  has  a  separate  estate  suflBcient  to  give  her  a 
proper  support,  the  court,  in  its  discretion,  may  withhold  any  allowance 
to  her  out  of  the  separate  property  of  the  husband.  The  court,  in  ren- 
dering a  decree  of  divorce,  may  assign  the  homestead  to  the  innocent 
part}-,  either  absolutely  or  for  a  limited  period,  according  to  tht;  facts 
in  the  case,  and  in  consonance  with  the  law  relating  to  homesteads. 
The  disposition  of  the  homestead  by  the  court,  and  all  oi-ders  and  de- 
crees touching  the  alimony  and  maintenance  of  the  wife,  and  for  the 
custody,  education  and  support  of  the  children,  as  above  provided,  are 
subject  to  revision  on  appeal  in  all  particulars,  including  those  which 
are  stated  to  be  in  the  discretion  of  the  court. 

Sec.  141.  In  executing  the  five  preceding  sections,  the  court  must 
resort:  [Code  of  Idaho  refers  to  four  preceding  sections  and  contains 
all  the  following  provisions.] 

1.  To  the  conmiunity  property;  then, 

2.  To  the  separate  property  of  the  husband. 

Sec.  143.  "When  the  wife  has  either  a  separate  estate,  or  there  is 
community  property  sufficient  to  give  her  alimony  or  a  proper  sup- 
port, the  court,  in  its  discretion,  may  withhold  any  allowance  to  her 
out  of  the  separate  property  of  the  husband. 

Sec.  143.  The  community  property  and  the  separate  property  may 
be  subjected  to  the  support  and  education  of  the  children  in  such  pro- 
portions as  the  court  deems  just. 

Sec.  144.  "When  a  divorce  is  granted  for  the  adultery  of  the  husband, 
the  legitimacy  of  children  of  the  marriage  begotten  of  the  wife  before 
the  commencement  of  the  action  is  not  affected.  [Sec.  2573,  Code  of 
North  Dakota.] 

Sec.  145.  "When  a  divorce  is  granted  for  the  adultery  of  the  wife,  the 
legitimacy  of  children  begotten  of  her  before  the  commission  of  the 
adultery  is  not  affected;  but  the  legitimacy  of  other  children  of  the  wife 
may  be  determined  by  the  court  upon  the  evidence  in  the  case. 

Section  2574  of  the  Codes  of  North  and  South  Dakota  adds:  "In  every 
such  case  all  children  begotten  before  the  commencement  of  the  action 
are  to  be  presumed  legitimate  until  the  contrary  is  shown." 

The  Codes  of  North  and  South  Dakota  contain  the  following  prohibi- 
tion of  marriage  after  divorce: 

"  Sec.  2575.  "When  a  divorce  is  granted  for  adultery,  the  innocent 
party  may  marry  again  dm-ing  the  life  of  the  other;  but  the  guilty 
party  cannot  marry  any  person  except  the  innocent  party  until  the 
death  of  the  other." 


1086  DITOECE    STATtTTES. 

Sec.  146.  In  case  of  the  dissolution  of  the  marriage  by  the  decree  of 
a  court  of  competent  jurisdiction,  the  community  property  and  the 
homestead  shall  be  assigned  as  follows: 

1.  If  the  decree  be  rendered  on  the  ground  of  adultery  or  extreme 
cruelty,  the  community  property  shall  be  assigned  to  the  respective 
parties  in  such  proportions  as  the  court,  from  all  the  facts  of  the  case 
and  the  condition  of  the  parties,  may  deem  just. 

2.  If  the  decree  be  rendered  on  any  other  ground  than  that  of  adul-' 
tery  or  extreme  cruelty,  the  community  property  shall  be  equally  di- 
vided between  the  parties. 

3.  If  a  homestead  has  been  selected  from  the  community  property,  it 
may  be  assigned  to  the  innocent  party,  either  absolutely  or  for  a  limited 
period,  subject  in  the  latter  case  to  the  future  disposition  of  the  court, 
or  it  may,  in  the  discretion  of  the  court,  be  divided,  or  be  sold  and  the 
proceeds  divided. 

4.  If  a  homestead  had  been  selected  from  the  separate  property  of 
either,  it  shall  be  assigned  to  the  former  owner  of  such  property  sub- 
ject to  the  power  of  the  court  to  assign  it  for  a  limited  period  to  the 
innocent  party. 

Sec.  147.  The  court,  in  rendering  a  decree  of  divorce,  m.ust  make 
such  order  for  the  disposition  of  the  community  property  and  of  the 
homestead  as  in  this  chapter  provided,  and,  whenever  necessary  for 
that  purpose,  may  order  a  partition  or  sale  of  the  property  and  a  divis- 
ion or  other  disposition  of  the  proceeds. 

Sec.  148.  The  disposition  of  the  community  property  and  of  the 
homestead,  as  above  provided,  is  subject  to  revision  on  appeal  in  all 
particulars,  including  those  which  are  stated  to  be  in  the  discretion  of 
the  court.  [Sees.  164  and  172  of  code,  relating  to  community  property, 
have  been  amended  by  act  of  March  3, 1893.   Stats.  1898,  pp.  71  and  425.] 


NOETH   DAKOTA.  108T 


NORTH  DAKOTA. 

The  Eevised  Code  of  North  Dakota  is  not  accessible,  but 
the  writer  is  advised  by  resident  attorneys  that  the  follow- 
ing provisions  relating  to  constructive  service  will  be  in 
effect  on  or  before  January  1,  1896.  Other  amendments- 
have  been  noted  under  the  sections  of  the  California  code. 

SERVICE  BY  PUBLICATION. 

.  .  .  Service  of  summons  in  an  action  may  be  made  on  any  defend- 
ant by  publication  thereof  upon  filing  a  verified  complaint  therein 
with  the  clerk  of  the  district  court  of  the  county  in  which  the  action 
is  commenced,  setting  forth  a  cause  of  action  in  favor  of  the  plaintiff 
and  against  the  defendant,  and  also  filing  an  affidavit  stating  the  place' 
of  the  defendant's  residence,  if  known  to  the  affiant,  and  if  not  known,- 
stating  that  fact;  and  further  stating: 

1.  That  the  defendant  is  not  a  resident  of  this  state;  or, 

3.  That  personal  service  cannot  be  made  on  such  defendant  within' 
this  state  to  the  best  knowledge,  information  and  belief  of  the  personh 
making  such  affidavit;  and  in  cases  arising  under  this  subdivision  the 
affidavit  shall  be  accompanied  by  the  return  of  the  sheriff  of  the  county 
in  which  the  action  is  brought,  stating  that  after  diligent  inquiry  for 
the  purpose  of  serving  such  summons,  he  is  unable  to  make  personal 
service  thereof  upon  such  defendant. 

The  affidavit  shall  also  state  or  the  complaint  show: 

2.  That  the  defendant  is  a  resident  of  this  state,  and  has  departed! 
therefrom  with  intent  to  defraud  his  creditors,  or  to  avoid  the  service 
of  a  summosn,  or  keeps  himself  secreted  therein  with  a  like  intent  ^  or, 

4.  That  the  action  is  for  divorce  or  for  a  decree  annulling  a  marriage. 

.  .  .  Service  of  the  summons  by  publication  may  be  made  by  pub- 
lishing the  same  six  times,  once  in  each  week  for  six  successive  weeks, 
in  a  newspaper  published  in  the  county  in  which  the  action  is  pend- 
ing, if  a  newspaper  is  published  in  such  county;  and,  if  no  newspaper 
is  published  in  such  county,  then  in  a  newspaper  published  at  the  seat 
of  government  of  this  state. 

.  .  .  A  copy  of  the  summons  and  complaint  must,  within  ten  days- 
after  the  first  publication  of  the  summons,  be  deposited  in  some  post- 
office  in  this  state,  postage  prepaid,  and  directed  to  the  defendant,  to  be 


1088  DIVOECE    STATUTES. 

served  at  his  place  of  residence,  unless  the  affidavit  for  publication 
states  that  the  residence  of  the  defendant  is  unknown. , 

.  .  .  After  the  affidavit  for  publication  and  the  complaint  in  the 
action  are  filed,  personal  service  of  the  summons  and  complaint  upon 
the  defendant  out  of  the  state  shall  be  equivalent  to  and  have  the  same 
force  and  effect  as  the  publication  and  mailing  provided  for  in  this 
chapter. 

.  .  .  The  first  publication  of  the  summons,  or  personal  service  of 
-the  summons  and  complaint  upon  the  defendant  out  of  the  state,  must 
be  made  within  sixty  days  after  the  filing  of  the  affidavit  for  publica- 
tion, and,  if  not  so  made,  the  action  shall  be  deemed  discontinued. 

.    .    .    Service  by  publication  is  complete  upon  the  expiration  of 
thirty-six  days  after  the  first  publication  of  the  summons,  or  in  case  of 
personal  service  of  the  summons  and  complaint  upon  the  defendant  ' 
out  of  the  state,  upon  the  expiration  of  fifteen  days  after  the  date  of 
-such  service. 

.  .  .  The  defendant  upon  whom  service  by  publication  is  made,  or 
his  representatives,  on  application  and  sufficient  cause  shown  at  any 
-time  before  judgment,  must  be  allowed  to  defend  the  action;  and  ea> 
cept  in  an  action  for  divorce,  the  defendant  upon  whom  service  by  pub- 
lication is  made,  or  his  representatives,  ruay,  in  like  manner,  ilpon  good 
cause  shown,  be  allowed  to  defend  after  judgment,  or  at  any  time  within 
one  year  after  notice  thereof,  and  within  seven  years  after  its  rendi- 
tion, on  such  terms  as  may  be  just. 

.  .  .  Proof  of  the  service  of  the  summons  and  of  the  complaint  or 
aiotice,  if  any  accompanying  the  same,  must  be  as  follows: 

1.  If  served  by  the  sheriff  or  other  officer,  his  certificate  thereof;  or, 

3.  If  by  any  other  person,  his  affidavit  thereof;  or, 

3.  In  case  of  publication,  an  affidavit  made  as  provided  in  section  532 
•of  this  code,  and  an  affidavit  of  a  deposit,  of  a  copy  of  the  summons 
.and  complaint  in  the  postoffioe,  as  required  by  law,  if  the  same  shall 
have  been  deposited;  or, 

4  The  written  admission  of  the  defendant. 

In  cases  of  service  otherwise  than  by  publication,  the  certificate,  affi- 
davit or  admission  must  state  the  time,  place  and  manner  of  service. 

Sec.  4904.  From  the  time  of  the  service  of  the  summons  in  a  civil  ac- 
tion, or  the  allowance  of  a  provisional  remedy,  the  court  is  deemed  to 
have  acquired  jurisdiction,  and  to  have  control  of  all  the  subsequent 
proceedings. 

A  voluntary  appearance  of  a  defendant  is  equivalent  to  personal  serv- 
ice of  the  summons  upon  him. 


INDEX. 


References  are  to  sections. 

A  MENSA,  DIVORCE  — 
nature  and  effect  of,  1033. 
alimony  awarded  on,  903. 
form  of  decree,  764. 

A  MENSA  ET  THORO  — 
decree  of,  1023. 

A  VINCULO,  DIVORCE  fsee  Decree  op  Divorce)  - 
nature  and  effect  of,  1020-1033. 
alimony  awarded  on,  900-943. 
form  of  decree,  763-765. 

ABANDONMENT  (see  Desertion)  — 

distinction  between,  53. 
ABATEMENT  — 
by  death,  729a. 

action  revived  as  to  property  rights,  739a. 
appeal  abates  by  death  of  one  party,  739a. 
action  to  annul  marriage  abates,  739a. 
alimony  awarded  after  death  of  husband,  729a. 
permanent  alimony  awarded  out  of  estate,  739a. 
ABILITY  — 

of  husband  as  foundation  for  alimony,  912. 

in  failure  to  support,  371-373. 
of  wife  to  support  herself,  alimony,  913. 
ABSENCE  (see  Desertion)— 
excused  by  sickness,  73. 

imprisonment,  73. 
business,  73. 
insanity,  72. 
mere  absence,  no  desertion,  65. 
presumption  of  death  from,  584. 
excuses  delay  in  bringing  suit,  533, 
ABSENT  AND  NOT  HEARD  OF  — 
as  a  cause  for  divorce,  385. 
69  ' 


1090  INDEX. 

References  are  to  sections. 
ABSENT  PERSON  — 

when  presumed  dead,  584. 
ABUSE,  OF  MARITAL  RIGHTS  — 

excessive  intercourse,  304. 
ABUSIVE  LANGUAGE  — 

not  creating  apprehension  of  cruelty,  263. 

as  an  indignity,  390. 

ABUSIVE  TREATMENT  — 

as  cruelty,  defined,  253. 
ACCESS  — 

of  parents,  see  Custody  of  Children,  978. 

of  husband,  birth  without,  163. 

in  action  for  divorce,  non-acct'ss  of  husband  may  be  sh'own,  163. 

ACCIDENTAL  INJURY  — 

not  cruelty,  819,  343. 
ACCOMPLICE  (see  Witnesses). 

ACCUSATION  — 

of  crime  as  cruelty,  280. 

of  adultery,  377,  378. 

by  wife,  309. 

of  impotence,  379. 

denying  paternity  of  child  as  cruelty,  377. 
ACQUIESCENCE  — 

a  form  of  connivance,  477. 

in  separation,  bars  divorce  for  desertion,  90. 

in  void  decree,  estoppel,  556. 
ACTION  — 

abatement  and  revival,-  739a. 

dismissal,  805.  ' 

premature  suit,  amendment,  734. 
ACTIVE  OR  PASSIVE  CONNIVANCE  (see  Connivance). 

ACTS  OF  CRUELTY  — 

whether  repeated,  268. 
ACTUAL  NOTICE  — 

of  divorce  suit  required  if  possible,  834. 

personal  service  in  another  state,  834. 

effect  of  decree  in  rem  with,  559. 

concealing  notice,  as  fraud,  1053. 
ACTUAL  RESIDENCE  — 

distinguished  from  legal,  43. 
ACTUAL  RESIDENT  (see  Domicile,  40-48). 


INDEX.  1091 

I 
References  are  to  sections. 

ADMINISTRATION  — 

right  to,  on  divorce,  103J. 

on  divorce  from  bed  and  board,  1023. 

ADMINISTRATOR  — 

a  necessary  party,  when  action  revived,  729a. 

on  vacating  decree  obtained  by  fraud,  1054 

ADMISSIONS  AND  CONFESSIONS  — 
divorce  not  granted  on,  775. 
in  proof  of  marriage,  777. 
vreight  of,  in  suit  for  adultery,  191. 
declarations  as  res  gestae,  in  desertion,  109. 

cruelty,  341. 
declarations  of  paramour,  781. 

ADULTEROUS  DISPOSITION  — 
proof  of,  165. 

ADULTEROUS  PARENT  — 

right  to  custody  on  divorce,  976. 

ADULTERY  (see,  also,  Ante-nuptial  Incontinence,  380;  Peegnancy 
Unknown  at  Mareiage,  379)  — 
Definition  mid  Statutory  Terms: 

adultery  defined,  185. 

criminal  intent,  136. 

insanity,  137. 

place,  128. 

the  wife's  offense  compared  with  her  husband's,  129. 

living  in  adultei-y,  130. 

separating  and  living  in  adultery,  131. 

adultery  coupled  with  cruelty,  133. 

adultery  coupled  with  desertion,  133. 

marriage  after  void  divorce,  134. 

marriage  pending  appeal,  135. 
■  marriage  under  mistake  of  fact,  136. 

same  —  negligence,  137. 
Circumstantial  Evidence: 

in  general,  138. 

adultery  is  not  inferred  from  any  particular  circumstances,  139. 

sufficiency  of  circumstantial  evidence,  140.  ' 

the  circumstances  must  be  incompatible  with  innocence,  141. 

adultery  need  not  be  proved  beyond  a  reasonable  doubt,  143. 

whether  it  must  be  necessary  conclusion  from  the  evidence,  143. 

the  elements  of  circumstantial  evidence,  144 


1092  INDEX. 

Eeferences  are  to  sections. 
ADULTKRY  (continued)— 
Opportunity: 

in  general,  145. 

visiting  house  of  ill-fame,  146. 

same  —  with  other  circumstances,- 147. 

same  —  facts  may  be  explained,  148. 

locking  doors,  149. 

wife  visiting  lodgings  of  paramour,  150. 

receiving  visits  in  absence  of  husband,  151. 

living  in  same  house,  152, 

occupying  room  with  one  bed,  153. 

occupying  same  bed,  154. 

when  adultery  is  presumed  from  bigamy,  155. 

other  facts  incompatible  with  innocence : 

acting  as  husband  and  wife,  156. 

affection  for  particeps  criminis,  157. 

concealment  of  intimacy,  158. 

gifts  of  paramour,  159. 

conduct  after  discovery,  ICO. 

venereal  disease,  161. 

birth  without  access  of  husband,  163. 
The  Intent: 

in  general,  163. 

familiarities  of  the  suspected  parties,  164, 
familiarities  with  other  persons,  165. 
familiarities  with  relatives,  166. 
familiarities  with  physicians,  pastors,  etc.,  167. 
familiarities  prior  and  subsequent,  168. 
when  too  remote,  169, 

adulterous  intent  not  presumed  during  sickness,  170 
acts  of  adultery  not  alleged,  171. 
character  of  accused,  173. 
ante-nuptial  unchastity,  173. 
character  of  particeps  criminis,  174, 
letters  of  the  accused  parties,  175, 
intercepted  letters,  176, 
Pleading  and  Practice: 
in  general,  177, 

illustrations  of  vague  and  indefinite  pleading,  178. 
rule  of  sufficiency,  179. 
time  must  be  within  reasonable  limits,  180. 
name  of  particeps  criminis,  when  not  required,  181, 
indefinite  pleading —  bill  of  particulars,  183. 
same  —  waiver,  183. 


IXDEX.  1093 

References  are  to  sections. 
ADULTERY  (continued)  — 

Pleading  and  Practice  (continued) : 

variance,  time  and  place,  184. 

same  —  person,  185. 

proof  by  judicial  record,  180. 

identity,  187. 

confrontation  or  presence  of  defendant  at  the  trial,  188. 

obscene  and  indelicate  evidence,  189. 
Witnesses  and  their  Testimony: 

in  general,  190. 

confessions,  191. 

denial  by  defendant,  193. 

effect  of  denial  by  accused  and  particeps  criminis,  193. 

testimony  of  paramour,  194. 

necessity  of  corroboration,  193. 

paramour's  confession  of  guilt,  196. 

declaration  of  paramour,  not  in  presence  of  accused,  197. 

testimony  of  husband  or  wife  of  particeps  criminis,  198. 

detectives,  199. 

prostitutes,  200. 

pimps,  201. 

■when  testimony  of  witness  disregarded.  202. 

opinion  of  witness,  203. 
when  should  be  a  cause  for  divorce,  8. 

may  cause  such  mental  suffering  as  to  amount  to  cruelty,  281. 
remarriage  after  divorce  for,  588. 
parliamentary  divorce  for,  405. 
alimony  without  divorce  for,  1003. 
accusation  of  wife  as  cruelty,  277. 

of  husband  as  cruelty,  377,  309. 
must  be  without  probable  cause,  378. 
in  suit  for  divorce  as  cruelty,  278. 
of,  as  justifying  desertion,  94,  95,  96. 
connivance  of,  see  Connivance,  475-489. 

conduct  conducing  to  adultery,  480. 
collusion  in  committing  adultery,  503. 
condonation  by  sexual  intercourse,  455. 
delay  after  discovery  of,  see  Delay. 
as  recrimination,  see  RECEiraNATlON,  437-429. 

adultery  a  bar  in  all  cases,  429. 

not  a  bar  to  nullity  suit  for  impotence,  684. 
effect  of,  after  divorce : 

as  to  custody  of  children,  976. 

as  to  permanent  alimony,  907. 

as  ground  for  terminating  alimony,  907. 


1094:  INDEX. 

References  are  to  sections. 

ADULTERY  AND  DESERTION  — 
as  a  cause  for  divorce,  131. 

ADULTERY  COUPLED  WITH  CRUELTY.  133. 
both  cruelty  aud  adultery  must  be  proved,  133. 

ADULTERY  COUPLED  WITH  DESERTION,  133. 
desertion  may  be  complete,  138. 

AFFECTION  — 

loss  of  aa  cruelty,  387. 

for  lewd  women,  when  cruelty,  887. 

AFFIDAVIT  (see,  also,  Vekipication,  738)  — 
,    of  defense  on  motion  to  set  aside  default,  775. 

of  non-residence,  819. 
AFFINITY  — 

defined,  710. 

whether  impediment  as  consanguinity,  714. 

does  not  exist  between  blood  relations  of  spouses,  710. 

ceases  on  death  of  one  spouse  without  issue,  710. 

continues  while  issue  living,  710. 

not  created  by  sexual  intercourse,  714 
but  by  marriage,  714. 

as  fixed  by  modern  statutes,  715. 

AFFIRMING  MARRIAGE  (see  Voidable  Marriage)  — 
voidable  for  fraud,  603. 

duress,  633. 

want  of  age,  733. 

disaffirming,  734. 
AGE  — 

want  of,  as  a  ground  for  annulment,  731-735. 
of  discretion,  731. 
of  disaffirmance,  734. 
of  consent,  731,  733. 
I         materiality  of,  in  impotence,  685. 
when  a  bar  to  nullity  suit,  685. 
of  parties,  may  be  alleged,  733. 
young  child  awarded  to  mother,  976. 
of  child,  determines  custody,  975,  976. 
disparity  of  age  considered  in  cruelty,  317. 

in  awarding  alimony,  916. 
considered  in  determining  probability  of  future  cruelty,  317. 
considered  in  determining  the  effect  of  fraud,  615. 
misrepresentation  of  age  as  fraud,  614. 
minor  not  estopped  by  misrepresentation  of  age,  614. 


INDEX.  1095 

References  are  to  sections. 
AGREEMENTS  — 

promoting  divorce,  are  void,  507-509. 
to  procure  divorce,  505.  ■ 
relating  to  alimony,  as  collusion,  509,  915. 
division  of  property,  964. 
custody  of  children,  975. 
vacating  decree,  as  collusion,  508. 
dismissal  of  suit,  as  collusion,  507. 

as  condonation,  466. 
suppression  of  evidence  as  collusion,  506. 
offending  by,  is  collusion,  503. 

committing  adultery  by,  503. 
effect  of  decree  obtained  by  collusion,  1055. 

AIDINa  IN  THE  PROOF  — 
as  collusion,  504 

ALABAMA  — 

statutes  relating  to  divorce,  page  1035. 

domicile,  page  1058. 

notice,  page  1069. 
desertion  as  a  crime  in,  100. 
alimony  without  divorce,  1000. 
alimony  after  divorce,  986. 

ALIBI  — 

proof  of  as  defense  in  adultery,  187. 

ALIMONY,  IN  GENERAL  (see,  also,  Temporary  Alimony,  850-863; 
Permanent  Alimony,  900-9] 8;  Decree  for  Alimony,  930-948)  — 
nature  of  permanent  alimony,  900. 
definition  of,  900,  932,  961. 
an  incident  of  divorce  suit,  1000. 
alimony  without  divorce,  1000-1003. 
alimony,  divorce  denied,  905. 
permanent,  not  granted  before  divorce,  986. 
not  a  debt,  987,  939. 
is  exempt  if  not  in  gi'oss,  987. 
not  subject  to  set-off,  937. 
not  released  by  discharge  in  bankruptcy,  987. 
agreements  relating  to,  when  valid,  507,  881,  915. 
assignment  of,  contingent  fee,  881. 

ALIMONY  IN  GROSS  — 
in  general,  931. 
does  not  terminate  on  death  of  either  party,  983. 

or  on  marriage  of  either  party,  988. 
not  subject  to  revision,  933a,  934. 


109,6  .INDEX. 

References  are  to  sections. 

ALIMONY  PENDENTE  LITE  (see  Tempoeaht  Alimony). 

ALIMONY,  PERMANENT  {see,  also,  Permanent  Alimony)  — 
application  for,  747. 

generally  in  a  petition  for  divorce,  947. 

may  be  joined  with  injunction  and  attachment,  747. 
form  of  application,  747. 
order  for,  766,  767. 

ALIMONY,  TEMPORARY  (see,  also,  Temporary  Alimony)  — 
application  for,  746. 

same,  allegation  of  faculties,  746,  760. 

notice  of,  when  required,  746. 

when  made,  746. 

inherent  power  to  grant,  851. 

granted  on  application  to  vacate  decree,  851. 

make  decree  absolute,  851. 
modify  decree  absolute,  851. 
application  for  alimony  without  divorce,  851,  1003. 
appeal,  854,  863. 
demurrer,  854. 
not  granted  for  past  expenditures,  746,  855. 

after  dismissal  of  wife's  suit,  860. 
refused  where  marriage  is  admitted  void,  852. 
a  valid  divorce  is  shown,  853. 
liusband  insane,  854. 
I  no  cause  for  divorce  is  alleged,  854. 

wife's  means  sufficient,  855. 
wife  guilty  of  a  cause  for  divorce,  857. 
other  defenses,  856a. 
terminates  on  verdict  against  wife,  860. 
dismissal,  860. 
iinal  judgment,  860. 
enforced  by  refusing  matters  of  favor  but  not  matters  of  rights  861. 
contempt  proceedings,  939. 
ALIMONY  WITHOUT  DIVORCE  — 
in  general,  1000. 

the  question  as  affected  by  statute,  1001. 
when  maintenance  is  granted,  1003. 
the  procedure,  1003. 
form  of  petition  for,  759. 
as  a  civil  liability  for  desertion,  98. 
enforced  by  contempt  proceedings,  939. 
terminates  upon  death  or  divorce,  lOOi 
condonation,  1003. 


INDEX.  1097 

References  are  to  secticns. 

ALLEGATION  (see  Pleading,  730)  — 
of  marriage,  733. 

jurisdiction,  731. 

faculties,  see  Alimony,  746,  760. 
proof  must  conform  to,  171,  338. 

ALLOWANCE   TO  WIFE   (see  Permanent   Alimony;    Division  of 
Peoperty). 

AMENDMENT  — 

in  suits  for  divorce,  741. 

divorce  suit  to  nullity,  737. 

suit  for  alimony  to  suit  for  divorce,  737. 

of  prayer,  737. 

verification,  738^ 
'  answer,  743. 

decree,  748. 

decree  during  term,  748. 
indefinite  pleading,  bill  of  particulars,  183. 
bill  of  particulars  not  allowed  under  code,  183,  739. 
new  causes  added  by,  740. 
premature  suit ;  amendment  of  petition,  734. 

ANCILLARY  PROCEEDINGS  (see  Alimony,  in  General)  — 
division  of  property,  960-986. 
custody  of  children,  975-985. 
injunction,  938. 

attachment,  736,  935,  938,  lOOa 
garnishment,  938. 
contempt,  939. 
writ  we  exeat,  940. 
creditor's  bill,  938. 
execution,  938. 
by  supplemental  bill,  740. 

ANOTHER  ACTION  PENDING,  554. 

as  a  bar  to  criminal  proceedings  for  desertion,  99. 
to  action  for  restitution  of  conjugal  rights,  101. 

ANNUITY  — 

right  to  recover  after  desertion,  95,  note. 

ANNULMENT  — 

of  decree  for  fraud,  in  general,  1050-1057. 

ANNULMENT  OF  MARRIAGE  — 
in  general,  565. 
divorce  and  annulment  distinguished,  566. 


1098  INDEX. 

References  are  to  sections.        , 

ANNULMENT  OF  MARRIAGE  (continued)  — 
void  and  voidable,  567. 
void  marriages,  568. 
voidable  marriages,  569. 
defenses  to  nullity  suit,  570. 
practice  and  procedure,  571. 
causes  for,  prior  marriage,  575-591. 

fi-aud,  eri-or  and  duress,  600-624. 

impotency,  675-705. 

insanitj"',  650-672. 

consanguinity  and  affinity,  710-715. 

miscegenation,  716-730. 

want  of  age,  721-735. 
whether  suit  abates  on  death  of  one  party,  729a. 
temporary  alimony,  when  allowed,  853. 
permanent  alimony  refused,  905a.' 
forms  of  petition  for,  755,  756. 

decree,  705. 
effect  of  decree,  1033. 

ANSWER  (see  Pleadins,  743)—  ■ 

must  conform  to  equity  practice,  743. 

forms  of  answers,  753. 

crdss-bill,  744,  745. 

form  of  cross-bill,  754. 

decree  on  cross-bill,  746. 

cannot  be  stricken  for  contempt,  861. 

conduct  during  suit  may  be  pleaded  in  recrimination,  441. 

general  denial  not  inconsistent  with  recrimination,  441. 

conspiracy  to  obtain  alimony,  561. 

ANTE-NUPTIAL  INCONTINENCE  — 
as  a  cause  for  divorce,  380. 

ground  for  annulment,  604-610. 
pregnancy  at  marriage,  379. 
placing  husband  on  guard,  607. 
as  proof  of  adulterous  disposition,  178. 
inference  that,  continued  after  marriage,  173. 
effect  on  amount  of  alimony,  965. 

ANTICIPATING  DEFENSES  — 
not  required,  733. 

APPEAL  — 

right  of,  must  be  derived  from  statute,  809. 
constitutional  right  in  all  cases,  809. 


INDEX.  1099 

References  are  to  sections, 
APPEAL  (continued)  — 

abuse  of  discretion,  809,  863. 

in  requiring  waiver  of  jury  trial,  8D1. 
temporary  alimony  on  appeal,  8o4,  863. 
restitution  of  alimony  on  reversal,  863. 
from  decree  for  tempoi-ary  alimony,  833. 

not  a  final  order,  863, 

permanent  alimony,  809. 

division  of  property,  809. 

attorney's  fees,  879. 

imprisonment  for  contempt,  939. 

custody  of  children,  809,  984. 

alimony  without  divorce,  1003. 

decree  in  opposition  to  verdict,  801,  809. 

order  vacating  decree,  1057. 
what  orders  are  final,  809,  863. 
discretionarj'  orders,  amendments,  741. 

supplemental  pleadings,  740. 

submitting  issue  to  jury,  801. 

right  to  open  and  close,  803. 

order  for  temporary  alimony,  809. 
effect  of  death  of  party,  729a. 

marriage  of  party,  809. 

APPEARANCE  — 
eflfect  of,  36. 

does  not  confer  jurisdiction  over  subject-matter,  36. 
jurisdictioii  by,  36. 
on  taking  deposition,  36. 
in  ex  parte  proceedings,  834. 
essential  to  temporary  alimony,  850. 

APPREHENDED  HARM  — 

divorce  for  cruelty  is  for,  260. 

ARIZONA  — 

statutes  relating  to  divorce,  page  1026. 

domicile,  page  1053. 

notice,  page  1069. 
discretionary  divorce  in,  388. 

ARKANSAS  — 

statutes  relating  to  divorce,  page  1036. 
domicile,  page  10,53. 
notice,  page  1069, 
alimony  after  divorce,  936. 

without  divorce,  1000. 


1100  INDEX. 

Eeferenoes  are  to  sections. 

ARREARS  OF  ALIMONY  — 
when  payable,  933,  942. 
not  recoverable  on  foreign  decree,  943. 

ARREST  — 

efleect  of  as  duress,  619,  630. 

to  prevent  departure  from  state,' 940. 

contempt  proceedings,  939. 

vi'rit  ne  exeat,  940. 

ARSON  — 

malicious  charge  of,  as  cruelty,  380. 

ARTICLES  OF  PEACE  — 

husband  liable  for  fees  in,  876. 

ARTICLES  OF  SEPARATION  — 
as  a  defense  in  general,  553. 
in  cruelty,  553. 
in  desertion,  83. 

suit  for  impotence,  686. 
in  condonation,  466. 
as  connivance,  483. 
in  restitution  of  conjugal  rights,  101. 
in  criminal  proceedings  for  desertion,  100. 
in  application  for  alimony,  915. 
separate  maintenance,  98. 
effect  of  absolute  divorce,  1027. 
consent  to  separation  presumed  from,  67. 

ASSAULTS  — 
as  cruelty,  263. 

ASSIGNMENT  OF  ALIMONY  — 
when  void,  881. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS  — 
divorced  wife  does  not  prorate  with,  938. 

ATTACHMENT  — 

in  divorce  suits,  736,  935,  938,  1003. 
homestead  subject  to,  938. 
wages  subject  to,  938. 
for  contempt,  see  Contempt,  939. 
ATTEMPT  — 

to  poison,  is  cruelty,  366,  308. 

shoot,  266. 

kill,  266. 

commit  adultery,  may  amount  to  cruelty,  281. 
malicious  charge  of  attempt  to  poison  is  cruelty,  380. 
malicious  charge  of  attempt  to  kill  is  cruelty,  280, 


INDEX.  1101 

Eeferenoes  are  to  sections. 
ATTORNEY  — 
for  state,  7. 
concealing  truth  from,  as  evidence  of  collusion,  510. 

ATTORNEY  FEES  — 
in  general,  875-883. 
liability  of  husband  for,  876. 
how  obtained  after  dismissal,  877. 
number  of  counsel,  878. 
amount  of,  879. 
the  order  for.  880. 
contingent  fee,  881. 
attorney's  Hen,  883. 

enforced  by  contempt  proceedings,  939. 
awarded  after  dismissal,  805,  877. 

B. 

BAIL  — 

compelling  husband  to  give,  939. 

BANKRUPTCY  — 

does  not  discharge  alimony,  933. 

BARGAINING  (see  Ageeements). 

BARRENNESS  — 

not  impotence,  675. 

BASTARDS  (see  Illegitimate  Children). 

BASTARDY  PROCEEDINGS  — 
efleect  of  as  duress,  619,  620. 

BAWDY  HOUSE  — 

visiting,  as  evidence  of  adultery,  146,  147,  148. 

BEATING  — 

as  cruelty,  266. 

BED  — 

occupying  same  as  evidence  of  adultery,  154. 
in  room  with  one  bed,  153. 
occupying  different,  not  desertion,  70. 

BED  AND  BOARD  (see  DECREES  OF  Divoece), 

BELIEF  OF  GUILT - 

right  to  permit  adultery,  connivance,  485. 

as  an  element  of  condonation,  453. 

that  prior  marriage  is  dissolved  by  death  or  divorce,  584,  585. 


1102  INDEX. 

References  are  to  sections, 

BELIEF  THAT  PARTY  IS  DEAD  — 

no  defense  to  adultery  in  void  second  maiu'iage,  131. 

BESTIALITY  (see  Sodomy,  303). 

BIGAMY  (.see  Peior  Marriage  Undissolved,  575-591)  — 

as  a  cause  for  divorce,  589. 

not  a  crime  if  marriage  after  absence  of  seven  years  unheard  of,  575. 

after  ex  parte  divorce  in  another  state,  586.     , 

adultery  presumed  from,  15.'). 

malicious  charge  of,  as  cruelty,  380. 
BILL  (see  Pleading,  730-743). 
BILL  OF  PARTICULARS  — 

in  divorce  suits,  see  Pleading,  739. 

to  cure  indefinite  allegation  of  adultery,  183. 
BIRTH  OF  CHILD  — 

as  proof  of  adultery,  163. 

as  disproof  of  impotency  of  wife,  694. 

BODILY  HARM  — 

as  a  test  of  cruelty,  353,  263. 

BONA  FIDE  INHABITANT  (see  Domicile). 

BOND  — 

I  whether  wife  must  give,  on  injunction,  736. 
security  for  alimony,  941. 
on  appeal  from  order  for  alimony,  863. 

BOND  OF  MATRIMONY,  DIVORCE  FROM  (see  Decrf.es  op  Divorce). 
BUGGERY  (see  Sodomy,  393). 
BUTLER  V.  BUTLER  — 
opinion  cited  in  text,  370. 

c. 

CALIFORNIA  — 

statutes  relating  to  domicile,  page  1053.  ' 

code  of,  relating  to  marriage  and  divorce,  page  1077. 

void  second  marriage  is  voidable  by  statute,  578. 

injury  to  health  not  a  test  of  cruelty,  365,  375. 

alimony  where  divorce  is  denied,  906. 

alimony  without  divorce,  1000,  1001. 
CANONICAL  IMPEDIMENTS  TO  MARRIAGE,  565. 
CAUSES  FOR  DIVORCE  — 

arising  after  suit,  740. 

tnust  exist  at  commencement  of  suit,  734. 

joinder  of,  785. 


INDEX.  1103 


Eeferenoes  are  to  sections. 


CAUSES  FOR  DIVORCE  (continued)  — 

the  cause  involving  the  least  moral  turpitude  is  chosen,  50. 

measured  by  effect,  8,  250. 

other  causes  may  amount  to  cruelty,  281. 

should  be  of  equal  gravity,  8,  383. 

post-nuptial  insanity  is  not,  653. 

all  misconduct  of  equal  gravity  should  be,  388. 

reasons  for  divorce  for  cruelty,  251. 

discretionary  causes,  388. 

for  legislative  divorce,  405. 

pregnancy  unknown  at  marriage,  379. 

ante-nuptial  incontinence,  380. 

voluntary  separation,  381. 

gross  neglect  of  duty,  383. 

divorce  obtained  in  another  state,  883. 

inability  to  live  together  in  peace  and  happiness,  384. 

absent  and  not  heard  of,  385. 

violent  and  ungovernable  temper,  387. 

divorce  at  discretion  of  the  court,  388. 

conduct  rendering  cohabitation  unsafe  and  improper,  389. 

indignities  rendering  condition  intolerable,  300. 

uniting  with  Shakers,  391. 

public  defamation,  393. 

sodomy  or  buggery,  393. 

CERTAINTY  — 

as  time,  place  and  person,  in  adulteri',  179-185. 

CERTIORARI  — 

from  contempt  proceedings,  939. 

CHAMPERTY  — 

assignment  of  alimony,  881. 
CHANGE  OF  RESIDENCE  — 

effect  on  pending  suit,  30." 

CHANGE  OF  VENUE  — 

provision  of  code  applicable  to  divorce,  804. 

CHARACTER  — 

evidence  of  in  divorce  suit,  173. 

vchether  evidence  of  adulterous  disposition  admissible,  165. 

why  not  admissible  a.s  in  criminal  suit,  10. 

of  accused  party,  may  be  shown,  172. 

to  prove  disposition,  173. 
oiparticeps  criminis,  174. 
misrepi'esentation  of,  not  a  fraud,  612. 
cHaracter  and  social  condition  as  affected  by  cruelty,  316. 


1104  INDEX. 

Eeferenoes  are  to  sections. 

CHARGE  TO  JUEY,  801. 

CHASTITY  (see  Ante-nuptial  Incontinence)  — 
want  of,  not  ground  for-annulment,  604. 
misrepresentation  of,  as  fraud,  604, 
accusation  against,  as  cruelty,  377,  378. 

CHATTEL  MORTGAGE  — 

to  defeat  alimony,  void,  988. 
CHILD  (see  Custody  op  Children,  975-985)  — 

ill  treatment  of,  as  cruelty  to  parent,  300. 

cruelty  of,  Imputed  to  father,  301. 

permitting  lewd  conduct  of  child,  is  cruelty,  283,  300. 

husband  may  expel  child  from  house,  301. 

as  a  witness,  785. 

fear  of  having,  no  excuse  for  desertion,  97. 

turning  step-child  away,  no  excuse  for  desertion,  299,  301. 

cost  of  supporting  estimated  in  fixing  alimony,  914. 

conveyance  to,  by  both  parties,  not  subject  to  alimony,  938. 

property  not  awarded  to  children,  963. 

status  of,  after  annulment,  568. 

of  void  marriage,  illegitimate,  575,  590,  591. 

denying  paternity  of,  as  cruelty,  377. 

born  before  marriage,  fraud  concerning  paternity,  609. 
CHILD-BIRTH  — 

cruelty  to  wife  at,  318. 

CHOKING  — 

is  cruelty,  366. 
CHRISTIAN  SCIENCE  — 

practice  of,  as  cruelty,  285. 
CHURCH  — 

refusal  to  allow  wife  to  attend,  394. 
CIRCUMSTANTIAL  EVIDENCE  — 

of  adultery,  138-144. 

effect  of  denial  by  defendant,  192. 
and  paramour,  193. 

when  sufficient,  140. 

is  sufficient  corroboration  of  party,  780. 

CITATION  (see  Process  and  Constructive  Service,  815-825). 
CITIZEN  (see  Domicile,  40-48). 
CIVIL  ACTION  (see  Action). 
CIVIL  CONTRACT  — 
marriage  as  a,  2,  S. 


INDEX.  1105 

References  are  to  sections. 
CIVIL  LAW  — 

\oid  raan-iage,  effect  of,  591. 
CIVIL  LIABILITY  — 

for  desertion,  98.    See,  also,  Alimony  Without  Divorce. 
CIVIL  RIGHTS  BILL  — 

marriage  law  not  violating,  719. 
CIVIL  SUIT  — 

whether  divorce  is,  6. 
CLEAN  HANDS  — 

the  doctrine  of,  435,  437. 
CODE  (see  Statutes). 
COHABITATION  — 

distinguished  from  sexual  intercourse,  53. 

ceasing  to,  is  not  desertion,  70. 

as  evidence  of  adulter}-,  153. 

condonation,  467,  4(38,  469. 
second  marriage,  580. 

triennial  cohabitation,  696. 

renewing,  effect  on  desertion,  81. 

affirmance  of  marriage  by,  569,  633,  673,  734. 

duty  of,  in  general,  63,  93,  337. 

ceases  after  one  party  is  guilty  of.a  cause  for  divorce,  63,  95 

improper  during  suit,  63,  93,  337. 

but  not  a  bar  to  suit  for  impotence,  683. 

refusing  to  commence,  is  desertion,  63. 

desertion  while  cohabiting  in  same  house,  70. 
COHABITATION  AND  REPUTE  — 

presumed  to  continue,  837. 

as  evidence  of  marriage,  777. 
COLLATERAL  ATTACK  (see  Fraud  in  Obtaining  Decree)  — 

of  decree  obtained  by  fraud,  560,  1051. 

fraud  as  available  as  in  direct  attack,  560. 
COLLUSION  — 

defined,  500. 

bars  divorce  for  any  cause,  501. 

bars  a  meritorious  cause  for  divorce,  503. 

offending  by  agreement,  503. 

aiding  in  the  proofs,  504. 

the  plaintiff  cannot  procure  a  divorce  for  defendant,  505. 

suppression  of  evidence,  506. 

agreements  to  dismiss  suit,  507. 

agreement  not  to  disturb  a  decree,  508. 

agreements  concerning  alimony  and  division  of  property,  509. 
70 


1106  INDEX. 

References  are  to  sections. 

COLLUSION  (continued)  — 
pleading  and  evidence,  510. 

distinction  between  connivance  and  collusion,  500. 
failure  to  interpose  defense  is  not,  506. 
effect  of  divorce  obtained  by,  1055. 

COLORADO  — 

statutes  relating  to  divorce,  page  1027. 
domicile,  page  1054. 
notice,  page  1069. 
attorney  appointed  in  ex  parte  divorce  suit,  7. 
divorce  in,  when  void,  19. 
alimony  without  divorce,  1000. 
attachment  in  ex  parte  proceedings,  935. 

COMITY  (see  Foreign  Decrees)  — 

law  where  offense  was  committed  not  enforced,  83. 
effect  of  foreign  divorce,  38. 

divorce  in  other  states,  23,  39,  30. 

COMMITMENT  (see  Contempt). 

COMMON  LAW  — 

marriage  without  celebration,  777. 
ecclesiastical  law  is  part  of,  10. 
no  absolute  divorce  at,  10. 
right  to  whip  wife  denied,  293. 

COMMON  PEOSTITUTE  (see  Prostitute). 

COMMUNITY  PROPERTY  — 
on  divorce,  965. 

COMMUTATION  OF  PUNISHMENT  — 
effect  of,  363. 

COMPENSATION  FOR  INJURIES  — 
permanent  alimony  as,  910. 

COMPLAINANT  (see  Plaintiff). 

COMPLAINT  (see  Pleading,  730-748). 

CONCEALMENT  — 

of  pregnancy,  a  ground  for  annulment,  606,  607. 

of  address,  to  prevent  reconciliation,  bars  divorce  for  desertion,  90. 

CONCLUSIVENESS  OF  DECREE  (see  Res  Judicata). 

CONCURRENT  JURISDICTION  — 
of  courts  and  legislature,  403. 


INDEX.  1107 

Keterences  are  to  sections. 
CONDONATION  — 
in  general,  450. 

thfe  condonation  must  be  voluntary,  451. 
the  reconciliation  must  be  complete,  453. 
there  must  be  knowledge  of  the  offense,  453. 
what  offenses  may  be  condoned,  454. 
condonation  of  cruelty,  455. 
revival  of  condoned  offenses,  456. 
what  revives  condoned  cruelty,  457. 
x'epetition  of  the  offense,  458. 
cruelty  revives  condoned  adultery,  459. 
any  cause  for  divorce  revives  a  condoned  offense,  4G0. 
a  cause  for  separation  will  revive  a  cause  for  divorce,  461. 
pleading,  463. 
evidence,  463. 
proof  of  condonation,  404. 
express  condonation,  465. 

when  condonation  is  inferred  from  agreements  and  settlements,  466. 
when  inferred  from  the  conduct  of  the  parties,  467. 
when  inferred  from  the  conduct  of  the  wife,  468. 
not  inferred  where  party  had  no  evidence,  453. 
not  a  license  to  repeat  condoned  offense,  450. 
too  great  facility  of,  is  connivance,  479. 
a  party  may  refuse  to  condone  a  cause  for  divorce,  75. 
not  a  defense  in  nullity  proceedings,  570. 
answer  alleging,  758. 

CONDUCT  CONDUCING  TO  ADULTERY  (see  Conmvance,  475-489). 
CONDUCT  ENDANGERING  LIFE  — 

as  cruelty,  363. 
CONDUCT  PROVOKED  BY  PLAINTIFF,  336-331. 
CONDUCT  RENDERING  CONDITION  INTOLERABLE,  264,  390. 
CONDUCT  RENDERING  COHABITATION  UNSAFE,  263,  389. 
CONDUCT  SUBVERSIVE  OF  MARRIAGE  RELATION,  265. 
CONFESSIONS  AND  ADMISSIONS,  781. 

admission  of  marriage  not  sufficient  proof  of,  777. 

divorce  not  granted  on,  779. 

when  not  privileged  communications,  783. 

demurrer  is  not,  743. 

default  is  not,  775. 

obtained  by  fraud,  inadmissible,  781. 

corroboration  of  testimony  of  party,  779,  780. 
CONFIDENTIAL  COMMUNICATIONS  (see  Peivileged  CommunicAp 

TIONS). 


1108  INDEX. 

References  are  to  sections. 
CONFINEMENT  — 

cruelty  during.  318. 
CONFLICT  OF  LAWS  (see  Jurisdiction  and  Conflict  op  Laws). 

CONFRONTATION  — 

or  order  for  presence  of  defendant  at  trial,  188. 
CONJUGAL  RIGHTS  (see  Restitution  of)  — 

mutual  rights  and  duties,  see  Husband  ;  Wife. 

questions  involving  mutual  rights  in  cruelty,  291-304. 

CONNECTICUT  — 

statute  relating  to  divorce,  page  1028. 
domicile,  page  1054 
notice,  page  1070. 

discretionary  divorce  in,  383. 

legislative  divorce  in,  400. 

desertion  as  a  crime  in,  100. 
CONNIVANCE  — 

connivance  defined,  475. 

when  connivance  is  a  defense,  476. 

connivance  must  be  with  corrupt  intent,  477. 

delay  is  a  form  of  connivance,  478. 

too  great  facility  of  condonation  is  connivance,  479. 

desertion  as  "  conduct  conducing  to  adultery,"  480. 

cruelty  and  desertion  as  connivance,  481. 

imprudence,  bad  judgment,  etc.,  are  not  connivance,  483. 

articles  of  separation  as  evidence  of  connivance,  483. 

the  husband  cannot  entrap  the  wife,  484. 

the  husband  may  watch  and  permit  the  wife's  adultery  if  he  believes 
her  guilty,  485. 

one  connivance  a  bar  to  all  subsequent  offenses,  480. 

connivance  to  subsequent  adultery  does  not  bar  a  divorce  for  prior 
adultery,  487. 

connivance  disclosed  by  evidence,'though  not  alleged,  488. 

connivance  must  be  clearly  proven,  489. 

CONSANGUINITY  AND  AFFINITY  — 
in  general,  710. 

the  Levitical  degrees  and  the  common  law,  711. 
how  the  degrees  are  computed,  713. 
consanguinity,  713. 
affinity,  714. 
modern  statutes,  715. 

CONSENT  (see,  also.  Connivance)  — 
desertion  must  be  without,  70. 
does  not  confer  jurisdiction  over  subject-matter,  33. 


INDEX.  1109 

References  are  to  sectlona. 
CONSENT  OF  PARENTS  — 

not  required  at  common  law,  783. 
marriage  not  void  for  want  of,  723. 
CONSPIRACY  (see  Collusion)  — 
marriage  brought  about  by,  611. 
to  prove  adultery  by  false  testimony  is  cruelty,  377. 
to  obtain  alimony,  as  a  defense,  561. 
CONSTITUTIONAL  LAW  — 
right  to  trial  by  jury,  801. 
right  of  appeal,  809. 

retrospective  and  ex  post  facto  laws,  4,  5. 
prohibitions  against  legislative  divorce,  401. 

of  marriage  of  guilty  party,  valid,  588. 
implied  prohibitions,  402. 

concurrent  power  of  legislature  to  grant  divorce,  403. 
civil  rights  bill,  intermarriage  of  white  and  black,  719. 
when  legislative  divorce  is  void  as  special  legislation,  408. 

as  exercise  of  judicial  power,  409. 
as  impairing  dontracts,  410. 
contempt,  not  imprisonment  for  debt,  939. 

is  due  process  of  law,  939. 
law  making  desertion  a  crime  is  constitutional,  100. 

CONSTRUCTIVE  NOTICE  (see  Summons  and  Constructive  Service)  — 
in  general,  815-825. 
statutes  relating  to,  pages  1069-1076. 

CONSULTING  CHILD  — 

in  controversy  for  its  custody,  975. 

CONSUMMATION  OF  MARRIAGE  — 

fraud  vitiating  ordinary  contract  sufflcieut  before,  603,  613. 
prevents  annulment  for  fraud,  602,  603. 
duress,  623. 
CONTEMPT  — 

refusal  to  pay  temporary  alimony,  861. 
permanent  alimony,  939. 
attorney's  fees,  880, 
alimony  vrithout  divorce,  1003. 
inherent  power  not  afiFected  by  other  remedies,  880,  939. 
denial  of  matters  of  right,  861. 

refusal  to  proceed  with  trial,  801. 
modify  decree,  861. 
file  decree,  861. 
change  of  venue,  861. 
dismissal  of  suit,  801. 
striking  out  answer,  881. 
dismissal  of  appeal,  861. 


1110  INDEX. 

Eeferences  are  to  sections. 
CONTINUANCE  — 

granted  when  defense  disclosed  not  in  issue,  4C3. 

when  amendment  necessary,  179. 
presumption  of  continuance,  80,  104,  581. 
costs  of,  allowed,  807. 

CONTINUING  OFFENSE  — 
when  barred  by  delay,  1003. 

CONTINUITY  OF  DESERTION  — 
how  destroyed,  80-86. 

not  destroyed  by  suit  for  divorce  on  other  grounds,  93. 
not  destroyed  by  removal  during  term  of  desertion,  69,  80. 
of  habitual  drunkenness,  356. 

CONTRACTS  (see  Obligation  of  Contracts)  — 
marriage  not  a  contract,  3. 
divorce  suit  as  an  action  on  contract,  ,4. 
a  cause  for  divorce  similar  to  breach  of,  4. 
as  to  alimony,  when  enforced,  509,  915. 

division  of  property,  964. 

custody  of  child,  975. 
to  procure  or  promote  divorce,  are  void,  507-509. 

CONVERSATION  — 

of  parties,  when  privileged,  782. 

CONVICT  — 

domicile  of,  41. 

CONVICTION  FOR  CRIME  — 

as  a  cause  for  divorce,  360-366. 
COPULA  — 

a  test  for  impotence,  675. 
CORROBORATION  — 

of  witnesses,  779. 

what  sufiScient,  780. 

of  paramour's  evidence,  195,  779. 

COSTS  — 

in  divorce  suits,  807. 

suit  money  and  attorney's  fees,  875-883. 

not  enforced  by  contempt,  939. 

as  counsel  fees,  875. 

COUNSEL  (see  Attorneys)  — 
fees  in  general,  875-883.      ■» 
number  of,  for  wife,  878. 

COUNTER-CHARGE  (see  Recrimination). 


INDEX.  1111 

References  are  to  sections. 
COUNTER-CLAIM  — 

a  cross-suit  is  a,  745. 
COUNTY  — 

in  which  suit  must  be  brought,  31. 

whether  actual  or  legal  residence  in,  required,  43. 

allegation  of  domicile  in,  731. 

suit  in  another  county,  fraud,  1052. 

change  of  venue,  804 
COUNTY  ATTORNEY  — 

duty  of,  in  ex  parte  divorce  suit,  7. 
COURT  (see  Jurisdiction)  — 

representing  interests  of  state,  8. 
.  cause  never  concluded  against  judge,  443,  463. 

discretionary  orders,  see  Appeal. 

whether  trial  by  jury,  801. 

open  court,  800, 

COURTS  — 

what,  have  jurisdiction  of  divorce,  19. 
COURTSHIP  — 

allegation  of,  not  necessary,  733. 
COUSINS  — 

marriage  of,  prohibited,  713. 
COUSINS  GERMAN  — 

permitted  to  intermarry,  713. 
COVERTURE  — 

wife  may  sue  for  divorce,  728. 
CREDITOR  — 

right  to  intervene,  737. 

priority  over  wife's  claim  for  alimony,  938. 

the  wife  as  a,  of  husband,  on  divorce,  938. 

CREDITOR'S  BILL  — 
for  .alimony,  736. 

CRIME  — 

against  nature,  see  Sodomy,  393. 
CRIME  AND  IMPRISONMENT  — 

in  general,  360. 

when  this  cause  is  complete,  361. 

pai'don  and  commutation  of  sentence,  363. 

whether  the  conviction  and  imprisonment  must  be  in  the  state,  363. 

the  sentence  must  be  for  the  i-equired  time,  364. 

marriage  to  convict  pending  appeal,  305. 

sentence  foi-  life  as  a  divorce,  366. 

comnlission  of  crime  as  cruelty,  883. 


1112  INBEX. 

References  are  to  sections. 
CRIMINAL  OR  CIVIL  — 
whether  divorce  suit  is,  6. 

CRIMINAL  PROCEEDINGS  — 

against  husband  for  desertion,  99,  100. 
CROSS-PETITION  (see  Pleading,  744). 
CRUEL  TREATMENT  — 

defined,  357. 
CRUEL  AND  ABUSIVE  TREATMENT,  258. 
CRUEL  AND  INHUMAN  TREATMENT,  359. 
CRUELTY  — 

Definition  and  Statutory  Terms: 

in  general,  250. 

reason  for  divorce  for  cruelty,  251. 

cruelty  under  ecclesiastical  law,  252. 

later  definitions,  253. 

scevitia,  254. 

endangering  life,  255. 

injury  to  limb,  256. 

cruel  treatment,  257. 

cruel  and  abusive  treatment,  258. 

cruel  and  inhuman  treatment,  259. 

statutory  terms  and  interpretations,  280. 

violence  inferred  from  violence  in  the  past,  261. 

violence  inferred  from  any  conduct,  263. 

bodily  harm  inferred  from  any  cond.uct  tending  to  impair  the 
health,  363. 

conduct  rendering  the  condition  intolerable,  361 

conduct  subversive  of  the  marriage  relation  whether  impairing 
the  health  or  not,  265. 
Violence  and  Direct  Injuries: 

personal  violence  sufficient  if  creating  apprehension,  366. 

the  violence  need  not  be  habitual  or  persistent,  367. 

one  act  of  violence  may  be  sufBcient,  268. 

cruelty  without  personal  violence,  269. 

reasons  for  same,  270. 

threats  of  violence,  271. 

communicating  venereal  disease,  373. 

inexcusable  neglect  during  sickness,  373. 
Conduct  Producing  Mental  Suffering: 

the  mental  suffering  must  impair  the  health,  374. 

evidence  of  mental  suffering,  375. 

reasons  for  the  physical  test  of  mental  suffering,  27b. 

false  and  malicious  charge  of  adultery,  277. 


INDEX.  1113 

References  are  to  sections. 
CRUELTY  (continued)  — 

Conduct  Producing  Mental  Suffering  (continued;: 

charge  of  adultery  in  proceeding  for  divorce,  278. 

malicious  charge  of  impoteuoe,  379. 

malicious  charge  of  crime  —  malicious  prosecution,  380. 

other  causes  for  divorce  may  be  cruelty,  381. 

commission  of  crime,  383. 

immoral  conduct,  283. 

vile,  abusive  and  profane  language,  284. 

religious  opinions,  285. 

unhappiness,  286. 

want  of  affection  — dislike,  287. 

refusing  to  speak,  388. 

inability  to  live  together,  389. 

presumptions  arising  from  the  wife's  departure,  200. 
Questions  Involving  Mutual  Rights  and  Duties: 

in  general,  391. 

value  of  ancient  authorities,  293. 

moderate  correction,  393. 

husband's  right  of  reasonable  restraint,  294. 

his  right  to  imprison,  395. 

management  of  household,  396. 

compelling  the  wife  to  overwork,  397. 

systematic  tyranny,  398. 

expelling  wife  from  home,  299. 

custody  and  punishment  of  children,  300. 

responsibility  of  husband  for  cruelty  of  children,  301. 

conformity  to  habits  and  tastes,  303. 

wife's  associates,  303. 

exercise  of  marital  rights,  304 
Cruelty  by  the  Wife: 

distinction,  305. 

violence  of  wife,  306. 

conduct  endangering  husband's  health,  307. 

threats  and  attempts  to  poison  husband,  808. 

wife's  accusation  of  adultery,  309. 

wife's  gross  neglect  or  violation  of  duties,  310. 

ill  conduct  of  wife  not  amounting  to  cruelty,  311. 
Evidence  of  Character  and  Intent: 

probable  conduct  in  the  future  is  the  point  to  be  determined,  313. 

subsequent  conduct,  313. 

religious  eccentricities,  314. 

divorce  for  cruelty  is  for  safety  and  not  for  punishment,  315. 

character  and  social  condition,  816. 


1114  INDEX. 

References  are  to  sections. 
CRUELTY  (contiDued)  — 

Evidence  of  Character  and  Intent  (continued) : 

age  of  parties  and  duration  of  marriage,  317. 

physical  condition  of  plaintiff,  318. 

cruelty  must  be  wilful,  319. 

insanity,  320. 

insane  delusions,  eccentricities,  821. 

drunkenness,  322. 

delirium  tremens,  323. 

delirium  from  morphine  habit,  324 

attacks  of  epilepsy,  325. 
Conduct  Provoked  by  Plaintiff: 

in  genera],  326. 

conduct  disproportionate  to  provocation,  327. 

contra  —  provocation  not  considered,  338. 

retaliation  by  plaintiS,  329. 

mutual  contests,  fighting,  380. 

wordy  quarrels  and  foolish  disputes,  831. 
Pleading: 

allegation  of  cruelty,  332. 

general  allegation  is  insufficient,  338. 

tlie  mental  and  physical  effect  must  be  stated,  834 

time  and  place,  335. 

alleging  a  course  of  ill  conduct,  336, 

separation  of  the  parties,  337. 
Evidence: 

pleading  and  proof,  338. 

record  in  criminal  case,  339. 

confessions  and  testimony  of  the  parties,  840. 

declarations,  when  res  gestce,  341. 

marks  of  violence,  342. 
otlier  causes  foi-  divorce  may  amount  to,  281. 

habitual  diunkenness  may  amount  to,  281. 
desertion,  281. 
gross  neglect  of  duty,  281. 
adultery,  281. 
a  remedy  to  prevent  apprehended  evil,  260. 
conduct  creating  apprehension  of  cruelty : 

violence,  inferred  from  violence,  261.   ' 

violence,  inferred  from  any  conduct,  262. 

attempt  to  kill,  266. 

poison,  266. 

kicking,  266. 

choking,  266. 

pulling  hair,  266. 


INDEX.  1115 


References  are  to  sections. 
CRUELTY  (continued)  — 

conduct  creating  apprehension  of  cruelty  (continued): 
spitting  in  face,  266. 
whipping  wife,  366. 
threats,  268,  670,  671. 
conduct  forcing  wife  to  unaccustomed  labor,  378. 
should  be  a  cause  for  divorce,  9. 
a  cause  for  alimony  without  divorce,  1003. 
justifies  separation,  64. 
as  recrimination,  430,  431,  433, 

cruelty  bars  divorce  for  adultery,  436. 
desertion,  437. 
cruelty,  440. 
adultery  bai-s  divorce  for  any  cause,  439. 
desertion  Ipars  divorce  for  cruelty,  438. 
condonation  of  cruelty,  455. 
cruelty  an  element  in  neglect  to  provide,  374. 

causing  desertion,  64. 
form  of  allegation  of,  753. 

CULTURE  AND  DISPOSITION  OF  PARTIES  — 

considered  in  cruelty,  377. 
CURABLE  — 

physical  incapacity  must  be  incurable,  680. 
CURTESY  — 

efifect  of  desertiofl,  95,  note. 

decree  of  divorce  should  extinguish  or  reserve,  748. 

extinguished  by  absolute  divorce.  1030. 
but  not  by  decree  of  separation,  1033. 
CUSTODY  AND  SUPPORT  OF  CHILDREN  — 

in  general,  975. 

the  relative  claims  of  the  parents,  976. 

custody  during  suit  for  divorce,  977. 

access  to  children,  978. 

custody  where  a  divorce  is  denied,  979. 

effect  of  order  of  custody  rendered  in  another  state,  91 

support  of  children  after  divorce,  981. 

support  where  decree  is  silent  as  to  custody,  983. 

support  where  custody  awarded  to  wife,  983. 

the  order  for  custody  and  support,  9S4. 

when  modified,  983. 

petition  for  maintenance  of,  after  divorce,  757. 

property  cannot  be  awarded  to  children,  963. 
or  to  wife  in  trust  for  them,  963. 

form  of  decree  awarding,  767. 


1116  INDEX. 

Eeferenees  are  to  seetiona 

D. 

DAMAGES  — 

alimony  as,  910. 

recovery  of,  by  woman,  void  marriage,  1033. 

action  against  paramour,  454. 

effect  of  condonation,  454. 

DEAF  AND  DUMB  — 

competent  to  marry,  6C3. 

DEATH  — 

presumption  of,  584. 
abates  divoi'ce  suit,  739a. 

suit  for  alimony,  72f)a,  1003. 
application  for  alimony,  739a. 
effect  on  alimony,  729a. 

permanent  allowance,  933. 
appeal,  729a. 
attachment,  933. 
marriage  believing  other  party  dead,  584. 
prevents  annulment  for  consanguinity,  710. 
does  not  prevent  vacation  of  fraudulent  decree,  1054. 
custody  of  child  after,  976. 

DEBAUCHING  SERVANT  — 

as  cruelty,  381. 
DEBT  — 

alimony  not  a  debt,  937,  939. 

alimony  exempt  from  set-off,  937. 

contempt  proceedings  not  imprisonment  for  debt,  939. 

action  of,  on  decree  of  alimony,  941,  943. 

DECEASED  HUSBAND'S  BROTHER,  714 
DECEASED  WIFE'S  SISTER  — 
marriage  of.  714. 

DECEASED  WIFE'S  SISTER'S  DAUGHTER  — 
marriage  of,  714. 

DECEASED  WIFE'S  MOTHER'S  SISTER,  714. 

DECEIT  (see  Fraud). 

DECLARATIONS  OF  PARTIES  (see  Admissions)  — 

when  admissible  as  res  gestae,  109,  341. 
DECREES  OP  DIVORCE  (see,  also,  Foeeign  Decrees  and   Decrees 
OP  Another  State)  — 

in  general.  1020. 

decree  nisi,  1021. 


INDEX.  1117 

References  are  to  sections. 

DECREES  OF  DIVORCE  (continued)  — 
dirorce  from  bed  and  board,  1033. 
decree  of  nullity,  1023. 

divorce  from  the  bonds  of  matrimony  —  in  general,  1024. 
after  divorce  tenants  by  the  entirety  become  tenants  in  common,  1025. 
dower,  1026. 

marriage  settlements  and  articles  of  separation,  1037. 
the  wife's  interest  in  tlie  policy  of  insurance,  1038. 
name  of  wife  after  divorce,  1029. 
curtesy  and  husband's  interest  in  the  wife's  property  after  divorce, 

1030. 
homestead,  1031. 
federal  homestead,  1033. 

effect  of  decree  obtained  in  anotlier  state  on  constructive  service,  1083. 
forms  of,  763-765. 
necessarj'  recitals  in  decree,  748. 
when  findings  not  required.  748. 

conformity  to  prayer,  737. 
void  for  want  of  allegation  of  domicile,  781. 
proper  allegations,  748,  918. 
summons  or  valid  notice,  818. 
not  void  for  failure  to  verify  petition,  738, 

DECREE  OF  DIVORCE,  EFFECT  OF  — 
as  decree  in  rem.  28,  29,  33. 

effect  in  other  states,  30. 
as  proof  of  valid  marriage,  777. 
presumption  that  divorce  was  ab.solute,  748. 

wife  obtained  divorce  if  awarded  alimony,  748. 
from  bed  and  board,  act  changing,  to  decree  nisi,  not  retrospective,  5. 

nature  and  effect  of,  1023. 

terminates  on  reconciliation,  1032. 
petition  of  both  parties,  1033. 

distinguished  from  bed  and  board,  901,  903. 

permanent  alimony  on,  902. 

form  of  decree  a  mensa,  764. 

marriage  after,  void,  583,  1033. 

and  party  guilty  of  adultery,  184. 

wife  may  acquire  separate  domicile  afterward,  46. 
Annulling  Decree  for  Fraud: 

in  general,  1050-1057. 

false  or  insufficient  evidence,  1051. 

fraud  in  concealing  proceedings  and  preventing  defense,  1053.     ■ 

whether  decree  vacated  after  one  party  has  married,  1053. 

the  death  of  one  of  the  divorced  parties  ia  not  a  bar,  1054. 


1118  INDEX. 

References  are  to  sections. 

DECREE  OF  DIVORCE,  EFFECT  OF  (continued)  — 
Annulling  Decree  for  Fraud  (continued): 

when  parties  are  bound  by  a  decree  obtained  by  collusion,  1053. 

delay  and  estoppel,  1050. 

procedure  in  vacating  decree  obtained  by  fraud,  1057. 
default,  vacating  personal  service,  775. 

form  of,  constructive  service;  763. 
extra-territorial  effect  of,  denied,  30. 
minutes  of  judge,  not  a  decree,  579. 
operative  when  rendered,  579. 
does  not  relate  back,  579. 
effect  of  legislative  divorce,  411. 
decree  for  alimony,  see  Alimojiy. 

DECREE  NISI  — 

in  general,  1031, 

marriage,  before  decree  made  absolute,  when  void,  583.  ,     , 

is  adultery,  134. 

temporary  alimony  on,  851. 

act  changing  existing  decrees  of  separation  to,  valid,  5. 
DEED  OF  SEPARATION  (see  Articles  of  Separation). 
DEFAMATION  (see  Public  Defamation). 
DEFAULT  — 

in  general,  775. 

proof  of  constructive  service,  817. 

in  divorce  cases,  775. 

when  vacated,  775. 

constructive  service,  835. 

form  of  decree,  763. 

DEFENDANT  (see  Parties^  — 
right  to  file  cross-bill,  744. 
jurisdiction  founded  on  domicile  of,  47. 
may  obtain  affirmative  relief,  43. 

although  non-resident,  48. 
effect  of  denial  of,  in  adultery,  192. 
DEFENSES  (see,  also,  Connivance,  475-489;  Collusion,  500-510;  Re- 
crimination, 435-443;  Condonation,  450-468;   Delay,  515-534; 
Insincerity,  535-527)  — 
in  nullity  proceedings,  570. 
condonation  is  not,  570. 
recrimination  is  not,  570. 
delay  and  estoppel,  may  be,. 570. 
to  application  for  temporary  alimony,  856aj 
other  defenses  —  in  general,  550. 


INDEX.  1119 

References  are  to  sections. 

DEFENSES  (continued)  — 

Toid  marriage  as  a  defense,  551. 

lack  of  jurisdiction,  553. 

articles  of  separation  as  a  defense,  553. 

anotlier  action  pending,  554. 

res  adjudicafa,  555. 

estoppel,  556. 

estoppel  of  decree  obtained  by  fraud,  557. 

extent  of  estoppel  of  decree  against  non-resident,  558. 

estoppel  by  decree  obtained  in  another  state  without  actual  notice,  559. 

estoppel  by  decree  obtained  in  another  state  by  fraud,  560. 

conspiracy  to  obtain  alimony  and  propsTty,  561. 

misconduct  of  plaintiff  not  amounting  to  a  cause  for  divorce,  502. 

when  inconsistent,  743. 

evidence  of  temperance  as  a  defense,  855. 

suppression  of  defense  as  collusion,  506. 

DEFINITION  (see  Words  and  Phrases). 

DEGREE  OF  CRUELTY,  269,  270. 

DELAWARE  — 

statutes  I'elating  to  divorce,  page  1028. 
notice,  page  1070. 
DELAY  — 

in  general,  515. 

presumption  that  oflfense  is  condoned,  516. 

statute  of  limitations,  517. 

explanations  for  delay  —  in  general,  51S. 

waiting  for  reconciliation,  519. 

lack  of  funds,  520. 

lack  of  evidence,  521. 

absence,  522. 

recent  cause  for  action,  523. 

pleading,  524. 

no  defense  to  suit  for  alimony,  100". 

as  defense  in  nullity  suit,  688. 

in  relating  circumstances,  203. 

prevents  vacation  of  decree  for  fraud,  587,  1056. 

to  assert  rights  after  void  divorce,  586. 

as  a  form  of  connivance,  478. 

DELIRIUM  FROM  MORPHINE  HABIT  — 
as  cruelty,  334. 

DELIRIUM  TREMENS  — 
in  cruelty,  833, 


1120  INDEX 

References  are  to  sections. 
DELUSION  — 

when  insanity  preventing  marriage,  660. 

DEMURRER  (see  Pleading,  743)  — 
temporary  alimony  allowed  on,  854. 
sufficiency  of  marriage,  tested  by,  732. 

DEPOSITIONS  — 

in  suits  for  divorce,  776. 

DESERTER  — 

one  who  causes  separation,  65. 

not  always  the  one  who  leaves  home,  65. 

DESERTION  — 

Definition  and  Statutory  Terms: 

in  general,  50. 

desertion  defined,  51. 

abandonment,  53. 

cohabitation,  53, 

desertion  not  an  abnegation  of  all  duties,  54. 

desertion  as  a  statutory  cause  for  divorce,  55. 

wilful  desertion,  56. 

obstinate  desertion,  57. 

malicious  desertion,  58. 

utter  desertion,  59. 

without  consent  of  the  party  deserted,  60. 

other  statutory  terms,  61. 
What  Constitutes  Desertion: 

refusing  to  renew  cohabitntion,  62. 

refusing  to  commence  cohabitation,  68. 

causing  a  separation  is  desertion,  64. 

non-cohabitation  is  not  desertion,  65. 

when  non-support  is  desertion,  66. 

a  separation  by  mutual  consent  is  not  desertion,  67. 

refusal  to  emigrate  or  to  follow  the  husband,  68. 

immaterial  in  what  state  the  desertion  occurred,  G9. 

desertion  while  living  in  the  same  house,  70. 

refusal  of  sexual  intercourse,  71. 

involuntary  absence,  73. 
Offer  to  Return: 

in  general,  73. 

the  offer  must  be  made  with  a  bona  fide  intention  to  bring  about 
a  reconciliation,  74. 

the  offer  must  be  made  within  the  statutory  period,  75. 

the  cause  for  the  separation  must  be  removed,  76. 

improper  conditions  must  be  omitted,  77, 

request  to  return,  when  necessary,  78. 

undisclosed  unwillingness  to  receive,  79- 


INDEX.  1121 

References  are  to  sections. 

DESERTION  (continued)  — 

What  Breaks  the  Continuity  of  Desertion: 

in  general,  80. 

renewing  cohabitation,  81. 

articles  of  separation,  83. 

continuing  support,  83. 

division  of  property,  84. 

ofifer  to  return,  85. 

attempting  to  return,  86. 
When  Plaintiff  is  Precluded  by  His  Oum  Misconduct- 
in  general,  87. 

separation  provolied  by  plaintiff,  88. 

whether  the  provocation  must  be  a  cause  for  divorce,  89. 

acquiescence,  90. 

consent  to  the  separation,  91. 
What  Justifies  a  Separation: 

separation  by  decree,  93. 

separation  during  suit  for  divorce,  93. 

a  cause  for  divorce  from  bed  and  board,  94 

what  justifies  a  separation  by  a  party  seeliing  divorce,  95. 

what  misconduct  of  plaintiff  justifies  the  defendant,  96. 

misconduct  not  justifying  a  separation,  97. 
Remedies  for  Desertion  Other  than  Divorce: 

civil  liability  for  desertion,  98. 

liability  of  minor  husband  to  support  his  wife,  99. 

desertion  as  a  crime,  100. 

restitution  of  conjugal  rights,  101. 
Evidence: 

in  general,  103. 

presumption  of  consent,  103. 

presumption  of  continuity.  104. 

justification  for  the  separation  not  presumed,  105. 

prima  facie  case — separation  against  will  of  complainant,  106. 

the  general  conduct  of  the  parties  is  admissible,  107. 

the  intent  to  desert,  108. 

when  declarations  are  admissible  as  res  gestae,  109. 

record  of  suit  for  maintenance,  110. 
Pleading: 

in  general.  111. 

the  allegation  should  be  in  statutory  terms,  113. 

language  equivalent,  113. 

necessary  allegations,  114. 
degerted  party  may  change  residence,  80. 
bars  gross  neglect  of  duty,  383. 
71 


1122  INDES. 

Eeferences  are  to  sections. 

DESERTION  (continued)  — 
may  amount  to  cruelty,  381. 
but  is  not  an  indignity,  390. 
may  be  condoned,  454. 
necessity  of,  as  a  cause  for  divorce,  9. 
alimony  without  divorce  for,  1003. 
as  affecting  right  to  custody  of  children,  976. 

dower,  95. 

curtesy,  95. 

wife's  annuity,  95. 

wife's  advances  to  husband,  95. 
as  connivance,  480,  481. 
period  of,  not  complete,  premature  suit,  734. 
form  of  allegation  of,  751. 
DESERTION  AND  ADULTERY  — 

as  a  cause  for  divorce,  133. 
DESERTION  AND  LIVING  IN  ADULTERY  — 

as  a  cause  for  divorce,  131. 
DESTRUCTION  OF  PROPERTY  — 
as  cruelty,  311. 

DETECTIVES  — 

as  witnesses,  199. 

weight  of  testimony  of,  199. 

may  be  disregarded,  199. 

employment  of,  to  procure  evidence,  199. 

offering  reward  to  witness,  199. 

impeachment  of,  199. 

connivance  of,  imputed  to  employer,  484 
DEUTERONOMY  — 

causes  for  divorce,  380. 

DICTUM  — 

whether  a  point  was,  89,  353,  393,  390. 

DISCRETION  OF  COURT  — 
as  to  cause  for  divorce,  388.' 
as  to  divorce  for  insanity,  651. 
as  to  reasonable  cause  for  separation,  95. 
as  to  condoned  offense  as  recrimination,  434. 
amendments,  740. 
supplemental  pleadings,  741. 
in  division  of  property,  965. 
in  fixing  amount  of  alimony,  809,  862* 

attorney's  fees,  879. 
in  selecting  custodian  for  children,  975. 


INDEX.  ,  1123 

» 

Eeferences  are  to  sections. 

DISEASE  (see  Venereal  Disease)  — 

cruelty  by  communicating  venereal  disease,  273. 

DISLIKE  — 

not  cruelty,  287. 

DISMISSAL  OF  SUIT  — 

on  failure  to  prove  marriage,  777, 

premature  suits,  734. 

lack  of  jurisdictional  allegation,  731. 

lack  of  verification,  738. 

failure  to  pay  temporary  alimony,  861. 

does  not  dismiss  cross-bill,  745. 

attorney's  fee  may  be  allowed  after,  805. 

alimony  after,  805. 

the  right  to  dismiss,  805. 

agreement  to,  when  collusion,  507. 

when  condonation,  466. 
of  suit,  a  bar,  555. 

unless  a  dismissal  without  prejudice,  So"). 
of  premature  suit,  not  a  bar,  555. 

DISSOLUTION  — 

as  distinguished  from  separation,  961. 

DISSOLUTION  OF  MARRIAGE  (see  Effect  of  Decrees  of  Divorce). 

DISTRICT  OF  COLUMBIA  — 

statutes  relating  to  divorce,  page  1039. 
notice,  page  1070. 
alimony  without  divorce,  1000,  1003. 

DIVESTING  TITLE  — 

on  division  of  property,  963. 
DIVISION  AND  RESTORATION  OF  PROPERTY  — 

in  general,  960. 

whether  the  property  allotted  is  alimony,  961. 

division  of  property  by  divesting  title,  963. 

division  of  property  by  other  means,  963. 

enforcing  agreement  to  convey  title,  964 

how  the  property  is  divided,  965. 

practice  in  the  division  of  property,  966. 

consent  to  separation  not  inferred  from,  67,  84 

in  suit  for  alimony  without  divorce,  1003. 
DIVORCE  (see  Causes  for)  — 

the  three  kinds  compared,  961. 

as  an  action  in  tort,  5. 


1124  INDEX. 

Eeferences  are  to  sections. 

DIVORCE  (continued)  — 

not  a  punishment,  4,  271,  315. 

but  a  separation  to  prevent  injury,  271,  315. 
an    extraordinary  remedy  for    evils   which    cannot  be    otherwise 

avoided,  251. 
physical  injury  as  a  cause  for  divorce,  251,  261,  362. 
conduct  subversive  of  marriage  relation,  265. 
rendering  condition  intolerable,  264. 
inflicting  mental  suffering,  265. 
endarlgering  life  and  limb,  255,  256. 
tending  to  injure  health,  263. 
inability  to  live  together,  289. 
distinguished  from  annulment,  566. 

separation  by  ecclesiastical  courts,  961. 
legislative  divorce,  400-411. 
DIVORCE  ACT,  ENGLISH  — 
nature  of,  3. 

see  Statutes,  pages  1065-1068. 

DIVORCE  AT  DISCRETION  OF  COURT  — 
in  full,  388. 

DIVORCE  OBTAINED  IN  ANOTHER  STATE  — 
as  a  cause  for  divorce,  383. 
effect  of,  see  Foreign  Divorce. 

DIVORCE  STATUTES  (see  Statutes)  — 
see  pages  1025-1086. 
Causes  for  Divorce,  see  — 
Alabama,  page  1025. 
Arizona,  page  1026. 
Arkansas,  page  1026. 
California,  page  1077. 
Colorado,  page  1037. 
Connecticut,  page  1028. 
Delaware,  page  1028. 
District  of  Columbia,  page  1029. 
Florida,  page  1029. 
Georgia,  page  1030. 
Idaho,  pages  1030,  1078. 
Illinois,  page  1030. 
Indiana,  page  1031. 
Indian  Territory,  page  1033. 
Iowa,  page  1033. 
Kansas,  page  1033. 
Kentucky,  page  183. 


INDEX.  1125 


References  are  to  sections. 

DIVORCE  STATUTES  (continued)  — 
Causes  for  Divorce  (continued)  — 

Louisiana,  page  1034. 

Maine,  page  1034. 

Maryland,  page  1035. 

Massachusetts,  page  1085. 

Michigan,  page  1036. 

Minnesota,  page  1087. 

Mississippi,  page  1037. 

Missouri,  page  1038. 

Montana,  page  1088. 

Nebraska,  page  1089. 

Nevada,  page  1039. 

New  Hampshire,  page  1040. 

New  Jersey,  page  1041. 

New  Mexico,  page  1041. 

New  York,  page  1041. 

North  Carolina,  page  1043. 

North  Dakota,  pages  1048,  1078. 

Ohio,  page  1043. 

Oklahoma,  page  1043. 

Oregon,  page  1044. 

Pennsylvania,  page  1044. 

Rhode  Island,  page  1046. 

South  Dakota,  pages  1046,  1078. 

Tennessee,  page  1046. 

Texas,  page  1017. 

Utah,  page  1048. 

Vermont,  page  1048. 

Virginia,  page  1048. 

Washington,  page  1049. 

West  Virginia,  page  1050. 

Wisconsin,  page  1050. 

Wyoming,  page  1051. 
Statutes  Belating  to  Domicile,  pages  1053-1068. 

notice  to  non-resident,  pages  1069-1076. 
English  Divorce  Act,  pages  1064-1068. 
California  Code,  pages  1077-1086. 

DIVORCE  SUIT  — 
nature  of,  4 

as  a  proceeding  in  rem,  5. 
is  a  suit  in  equity,  6. 
a  triangular  proceeding,  7. 
is  siii  generis,  6. 


1126  INDEX. 

Beferences  are  to  sections. 

DIVORCE  SUIT  (continued)  — 
the  state  a  party  in,  7. 
whether  civil  or  criminal,  6. 
governed  by  local  practice  when  adequate,  10. 

otherwise  by  ecclesiastical  practice,  10. 
when  governed  by  code  of  civil  procedure,  803. 
what  provisions  of  code  applicable,  see  Statutes. 
when  premature,  734. 
custody  of  children  during,  977. 
charge  of  adultery  or  impotence  in,  as  cruelty,  378,  379. 

DOMICILE  — 

in  general,  40. 

the  statutes  require  a  domicile  as  distinguished  from    mere  resi- 
dence, 41. 

the  residence  must  be  actual,  not  merely  intended,  43. 

evidence  of  residence  should  be  free  from  suspicion,  43. 

motives  immaterial  if  the  party  resolves  to  remain,  44 

obtaining  divorce  with  intent  to  return,  45. 

the  wife  may  have  a  separate  domicile  after  her  husband's  delictum, 
46. 

domicile  of  wife  who  has  deserted  her  husband  without  justifica- 
tion, 47. 

non-resident  party  as  plaintiff,  48. 

of  choice,  40. 

whether,  must  be  adequate  for  every  purpose,  41, 

of  one  party  sufficient,  38. 
contra,  39. 

change  of,  during  suit,  80. 

as  to  counties,  30. 

at  time  of  offense,  immaterial,  33. 

English  law  of,  33. 

allegation  of,  is  jurisdictional,  731, 
as  to  county,  731. 

residence  not  complete,  premature  suit,  734. 

of  parties,  in  suit  for  alimony  without  divorce,  1003. 

DOWER  — 

effect  of  desertion,  95,  note, 
decree  of  absolute  divorce  should  bar,  748. 
alimony  as  a  bar  to  dower,  909,  1036. 
alimony  as  compensation  for  dower,  909. 
barred  by  absolute  divorce,  1036. 

but  not  by  decree  of  separation,  1032. 


INDEX.  1137 

References  are  to  sections. 

DOWER  (continued)  — 

effect  of  decree  in  rem,  1033. 
allowed  after  voidable  marriage,  569. 
but  not  after  void  marriage,  568. 
unless  by  statute  where  marriage  in  good  faith,  578, 
allowed  wlien  second  wife  entitled  to,  if  there  is  prior  marriage  un- 
dissolved, 578. 

DRIVING  WIFE  AWAY  — 
as  desertion,  64,  95. 
not  desertion  in  Massachusetts,  64. 

DRUNKENNESS  (see,  also.  Delirium  Tremens)  — 
in  general,  350-359. 
nature  of  habit,  351,  352. 
must  be  from  liquors,  353, 
must  be  continuous,  356. 
allegation  of,  751. 
no  adultery  during,  136. 
effect  of,  in  cruelty,  371. 
not  an  excuse  for  threats  or  cruelty,  371. 
may  be  condoned,  454. 
may  amount  to  cruelty,  281,  322. 
misconduct  during,  not  an  indignity,  390. 
as  mental  incapacity  at  marriage,  664. 

DRUNKENNESS  AND  WASTING  ESTATE,  357. 

DUE  PROCESS  OF  LAW  — 
contempt  proceedings  are,  939. 

DURESS  — 

in  general,  617-624 

defined,  617. 

what  duress  is  suflBcient,  618. 

unlawful  imprisonment,  619. 

marriage  under  arrest,  630. 

threats  of  arrest  and  imprisonment,  631. 

duress  from  other  parties,  622. 

effect  of  consummation,  628. 

pleading  and  evidence,  624. 

DUTY  — 

neglect  of,  as  a  cause  for  divorce,  383. 
by  wife,  as  cruelty,  310. 


1128  INDEX. 

'  Eeferences  are  to  sections. 

E. 

ECCENTRICITIES  — 
as  cruelty,  331. 

ECCLESIASTICAL  COURTS  — 
pleadings  in,  730. 
no  jury  trial  in,  801. 
opinion  of  witness  received,  303. 
permanent  alimony  allowed  by,  901-903. 
no  contempt  proceedings  in,  939. 
power  to  require  bail,  940. 

ECCLESIASTICAL  LAW  — 
policy  of,  9. 
reports  of,  9. 
no  absolute  divorce,  10. 
a  part  of  our  common  law,  10. 
in  abeyance  until  our  courts  had  jurisdiction,  10. 
partial  adoption  of,  10. 
reason  of,  for  divorce  for  cruelty,  353. 
definition  of  cruelty,  353. 

husband  had  a  right  to  divorce  for  cruelty,  305. 
alimony  always  an  incident  of  divorce,  1000. 
alimony  av,farded  on  decree  a  mensa,  901. 
restitution  of  conjugal  rights,  101. 

ECCLESIASTICAL  PRACTICE  — 

followed  where  our  procedure  inadequate,  3,  744 

when  code  does  not  provide  for  cross-petition,  744, 
aflSrmative  relief,  13. 
bill  of  particulars,  183, 
petition  not  suitable,  730. 
decree  of  confrontation,  188. 
permanent  alimony,  901,  903,  903. 
excommunication  prohibited,  939. 
opinion  of  witness  received,  303, 
both  the  facts  and  evidence  were  set  out  in  pleading,  333,  730. 

ENDANGERING  LIFE  — 
as  cruelty,  defined,  355. 

ENDANGERING  LIFE,  LIMB  AND  HEALTH,  356. 

ENDANGERING  REASON,  363. 


INDEX.  1129 

References  are  to  sections. 
ENGLISH  DIVORCE  ACT  — 
statutes,  pages  1064-1068. 
reports  of  decisions  under,  9. 
validity  of  American  decisions  in  England,  33. 
discretion  of  court,  434. 
conduct  conducing  to  adultery,  480. 
reasonable  excuse  for  delay,  517,  518. 

EPILEPTIC  FITS  — 
as  cruelty,  89,  325. 
provoking  separation,  89. 
as  a  cause  for  divorce,  89,  325. 

EQUITY  — 

divorce  suit  is  in  equity,  6. 

EQUITY  JURISDICTION  — 
to  grant  divorce,  19. 

grant  alimony  without  divorce,  1000. 

issue  writ  ne  exeat,  940. 

annul  marriage  for  fraud,  601. 

grant  temporary  alimony  for  impotence,  675,  851. 

punish  contempt,  861,  880,  989. 

award  custody  of  children,  975. 

award  attorney  fees,  875. 

award  permanent  alimony,  900. 

guilty  wife,  907. 
order  inspection  of  person,  697. 
vacate  decrees  obtained  by  fraud,  1050. 

ERROR  — 

invalidating  marriage,  see  Feaud,  Error  and  Duress. 

ESTOPPEL— 

doctrine  of,  not  always  applicable  to  divorce,  556. 
may  apply  to  nullity  proceedings,  570. 
to  deny  validity  of  decree,  556,  586. 

obtained  by  fraud,  587,  1056. 
by  decree  obtained  by  fraud,  537. 
extent  of  decree  against  non-resident,  558,  559. 
without  actual  notice,  559. 
obtained  by  fraud,  560. 
of  decree  extend  to  all  questions  that  might  have  been  litigated,  555. 

but  not  to  subsequent  offenses,  555. 
minor  not  estopped,  614. 
divorce  not  granted  on  estoppel,  374 
impotent  party  as  plaintiff,  690. 


1130  INDEX. 

Befereuces  are  to  sections. 

EVANS  V.  EVANS  — 

opinion  In,  353.  ' 

criticism  of,  353. 

EVIDENCE  (see,  also.  Presumptions;  Eecoed;  Witness)— 
in  general,  774. 
default,  775. 
depositions,  776. 
proof  of  marriage,  777. 
husband  and  wife  as  witnesses,  778. 
necessity  of  corroborating  testimony  of  a  party,  779. 
what  corroboration  is  sutHcient,  780. 
confessions  and  admissions,  781. 

privileged  communications  between  husband  and  wife,  783. 
privileged  communications  to  physicians  and  attorneys,  783. 
testimony  of  children  of  the  parties,  784. 
relatives  and  servants  as  witnesses,  785.      ' 
general  conduct  of  the  parties  is  admissible,  338, 

in  desertion,  107. 

in  adultery,  168. 

when  too  remote,  169. 

in  cruelty,  377,  336,  833,  338. 

after  the  alleged  act  of  cruelty,  313. 

before  the  alleged  act,  335. 
residence  in  the  state,  48. 
desertion,  103-110. 
adultery,  140-163. 
cruelty,  338-343. 
adulterous  intent,  163-176. 
drunkenness,  858. 
recrimination,  443. 
condonation,  463-468. 
connivance,  488,  489. 
collusion,  510. 

of  fraud,  avoiding  marriage,  615. 
of  duress,  avoiding  marriage,  634 
of  insanity,  686. 
of  impotence,  694. 
suppression  of,  is  collusion,  506. 
preponderance,  in  circumstantial  evidence,  140. 
on  application  for  temporary  alimony,  853. 
permanent  alimony,  918. 
attorney's  fees,  879. 


INDEX.  1131 

References  are  to  sections. 

EX  PARTE  DIVORCE  (see,  also,  Foreign  Divorce)— 

divorce  suit  as  a  proceeding  in  rem,  5,  27. 

alimony  on,  935. 

attachment  proceedings  on,  736,  935. 

not  an  adjudication  of  matters  other  than  status,  936. 

not  a  bar  to  recovery  of  alimony  after  divorce,  936. 

effect  on  dower,  1033. 

custody  of  children,  980. 

effect  of  divorce  obtained  in  other  states,  88,  39,  30. 
EX  POST  FACTO  LAW  — 

making  prior  misconduct  a  cause  for  divorce,  13. 

desertion  as  a  crime,  100. 

EXASPERATING  CONDUCT  — 
when  cruelty,  286. 
a  provocation  of  cruelty,  320. 

EXCEPTIONS  (see  Appeal> 
EXCESSES  — 

as  cruelty,  264. 
EXCOMMUNICATION  — 

in  ecclesiastical  courts,  939. 

EXCUSES  FOR  DELAY  — 
in  full,  51,8-523. 

EXEAT,  WRIT  NE  — 

when  awarded,  940. 
EXECUTIOlif  — 

issuing  on  decree  for  alimony,  938,  941. 
EXEMPTION  — 

on  execution  for  alimony,  938, 

of  wages,  938. 

of  homestead,  938. 

when  alimony  is  exempt  from  set-off,  937. 

EXPELLING  FROM  HOME  — 
husband's  right,  299. 

EXPENSES  OF  SUIT  (see  Costs). 

EXPRESSIO  UNIUS  EST  EXCLUSIO  ALTERIUS,  1000,  1030. 

EXTRATERRITORIAL  EFFECT  — 
of  prohibition  of  marriage,  588. 
of  ex  parte  divorce,  28,  29,  30. 
denied  in  New  York,  29,  586. 
North  Carolina,  29. 
where  denied,  a  marriage  after  ex  parte  divorce  is  void  everywhere, 
586. 


1132  INDEX. 

Eeferenoes  are  to  sections. 

EXTREME  CRUELTY  — 
defined,  260. 

EXTREME  AND  REPEATED  CRUELTY  — 
defined,  361, 


FACT  OF  MARRIAGE  (see  Marriage,  Proof  op,  777). 

FACULTIES  — 

of  husband,  see  Alimony. 

allegation  of,  746. 

proof  of  on  appeal  for  temporary  alimony,  836. 

FAILURE  TO  SUPPORT  — 

the  period  of  neglect,  370. 

whether  ability  means  property  or  capacity  for  labor,  371. 

sufiicient  peouniar3'  ability,  372. 

the  husband's  ability  must  be  shown,  373. 

the  neglect  must  be  cruel  and  wilful,  371 
and  must  leave  the  wife  destitute,  375. 

whether  there  is  neglect  if  the  wife  supports  herself,  370. 

no  neglect  if  the  wife  deserts,  377. 

allegation  in  the  terms  of  the  statute  not  sufficient,  378. 
FALSE  CHARGE  OF  ADULTERY  — 

impotence  or  crime,  no  cruelty,  277,  278,  379,  280. 
FALSE  PRETENSE  (see  Fraud). 

FAMILIARITIES  — 

evidence  of  adulterous  disposition,  164-169. 
FAMILY  — 

the  husband's  right  to  control,  68,  396. 
FATHER  (see  Husband). 
FAULT— 

party  in,  not  entitled  to  divorce,  438,  433. 

if  both  in  fault  it  is  the  duty  of  both  to  renew  cohabitation,  78. 
FAULT-FINDING  — 

when  cruelty,  386. 
FEAR  (see  Duress). 

FEDERAL  COURTS  — 

no  jurisdiction  of  divorce,  19. 

equity  jurisdiction  to  annul  contract  of  marriage,  601. 

enforcing  decree  of  alimony,  943. 

collateral  attack  of  divorce,  1054, 


IXDEX.  1133 

References  are  to  sections. 

FEEBLE  MIND  (see  Mental  Incapacity). 

FEIGNED  ISSUE  (see  Insinckrity). 

FELONY  (see  Crime  and  Imprisonment,  360-365), 

FICTITIOUS  SUIT  (see  Insincerity,  535)  — 
parties  punishable  by  contempt,  525. 

FIGHTING  — 

as  cruelty,  839-331. 

FINDINGS  — 

in  decree  of  divorce,  748. 

required  where  there  is  cross-bill,  748. 

additional  findings  in  jury  trials,  801. 

FITS  — 

whether  justify  desertion,  89,  335. 

FLORIDA  — 

statutes  relating  to  divorce,  page  1039. 

domicile,  page  1054. 

notice,  page  1070. 
alimony  without  divorce,  1003, 

FORCING  WIPE  — 

having  venereal  disease,  373. 

FOREIGN  COUNTRY  — 

duty  of  wife  to  follow  husband  to,  OS. 
service  of  process  in,  831. 

FOREIGN  DECREE  AND  DECREES  OF  OTHER  STATES  — 
in  general,  33. 
extraterritorial  effect  of,  30. 
denied  where  there  is  no  personal  service,  39-33. 
validity  of  American  divorces,  33. 

German  divorce  in  New  York,  33. 

French  decree  for  alimony  in  New  York,  943. 

Swedish  decree  for  alimony,  33. 

Kansas  divorce  in  England,  33. 

Pennsylvania  divorce  in  England,  33. 
full  faith  and  credit  clause,  943. 
cause  for,  immaterial,  33. 
alimony  awarded  in  another  state,  943. 

France,  943. 
custody  of  children,  980. 

FORGIVENESS  (see  CONDONATION). 


1134  INDEX. 

Eeferences  are  to  sections. 

FORMS  OF  PLEADINGS  AND  DECREES  — 

in  general,  750-768. 

petitions  fox-  divorce,  751, 

petition  for  divorce  on  account  of  cruelty,  752. 

answers  in  suits  for  divorce,  753. 

answer  and  cross-petition  for  divorce,  754 

petition  for  annulment  of  marriage,  755. 

petition  to  annul  marriage  contracted  in  good  faith  and  to  have  chil- 
dren declared  legitimate,  756. 

petition  for  maintenance  of  child  after  divorce,  757. 

petition  to  set  aside  a  fraudulent  conveyance,  758. 

petition  for  alimony  without  divorce,  759.. 

application  for  alimony,  760. 

order  for  temporary  alimony,  761. 

decrees  of  absolute  divorce,  763. 

default  upon  constructive  service,  763. 

decree  of  separation  or  limited  divorce,  764 

decree  of  nullity,  765. 

deci-ee  for  permanent  alimony,  766. 

decree  awarding  alimony,  custody  of  children  and  use  of  homestead. 
767. 

decree  restraining  sale  of  property  and  restoring  the  wife's  property 
and  awarding  use  of  homestead,  768. 

FORNICATION  (see  Ante-nuptial  Incontinence)  — 
no  distinction  between,  and  adultery,  135. 
effect  of,  where  pregnancy  is  concealed,  606,  607. 
creates  same  affinity  as  marriage,  565. 

FOURTEENTH  AMENDMENT  — 

prohibiting  intermarriage  of  white  and  black  not  a  violation  of,  719. 

FRAUD,  ERROR  AND  DURESS  — 
in  general,  600. 

jurisdiction  in  the  absence  of  statute,  601. 
fraud  where  the  marriage  is  not  consummated,  603. 
affirmance  of  marriage,  608. 
misrepresentation  of  chastity,  604. 
representing  her  child  legitimate,  605. 
pregnancy  concealed  from  innocent  husband,  606. 
concealed  pregnancy,  husband  guilty  of  fornication,  607. 
false  representation  as  to  paternity,  608. 

false  representation  as  to  paternity —  child  born  before  marriage,  609. 
pretended  pregnancy,  610. 
conspiracy  to  bring  about  marriage,  611. 
false  representations  as  to  wealth  and  character,  613; 


nsTDEx.  113E 


Eeferencea  are  to  sections. 

FRAUD,  ERROR  AND  DURESS  (continued)  — 
fraud  in  obtaining  license  —  false  ceremony,  613. 
misrepresentation  of  age,  614. 
the  evidence  of  fraud,  615. 
error  or  mistake,  616. 
duress,  in  general,  617. 
what  duress  is  sufBcient,  618. 
unlawful  arrest  or  imprisonment,  619. 
marriage  under  arrest,  630. 
threats  of  arrest  and  imprisonment,  631. 
duress  from  other  parties,  633. 
eflfect  of  consummation,  633. 
pleading  and  evidence,  634 
impotency  is  not  a  fraud,  683. 
concealing  disease  not  a  fraud,  683. 

FRAUD  IN  OBTAINING  DECREE  — 
in  general,  1050-1057. 
decree  vacated  after  term,  1050. 
fraud  in  proof  of  cause  for  divorce,  1051. 

concealing  pi-oceedings,  1052. 

promising  to  dismiss,,  1053. 

suing  in  county  where  neither  resided,  1053. 

concealing  notice  of  proceedings,  1053. 

false  affidavit  as  to  defendant's  address,  1053. 

sending  wife  out  of  state,  1053. 
effect  of  delay  and  estoppel,  1056. 
when  parties  bound  by  collusion,  1055. 
vacated  after  death  of  plaintiff,  1054. 

marriage  of  plaintiff,  1053. 
procedure  in  vacating,  1057. 

FRAUDULENT  CONVEYANCES  — 
when  set  aside,  938. 

allegation  of,  in  petition  for  divorce,  736. 
decree  restraining  collusive  judgment,  768. 

FRAUDULENT  DIVORCE  — 

estoppel  by  decree  of  another  state,  560. 
subject  to  collateral  attack,  560,  1051. 
delay  and  estoppel  prevent  attack,  587,  105& 
marriage  after,  587,  1053. 

FRAUDULENT  GRANTEE  — 
may  be  made  a  party,  938. 
chattel  mortgage  to,  set  aside,  938. 


1136  INDEX. 

Eeterences  are  to  sections. 

FRENCH  DECREE  FOE  ALIMONY  — 

suit  on,  943. 
FRIENDS  — 

as  witnesses  in  divorce  suit,  785. 
FULL  FAITH  AND  CREDIT  CLAUSE  OF  FEDERAL  CONSTITU- 
TION — 

applicable  to  decrees  in  rem,  29. 

not  violated  by  collateral  attack,  560. 

divorce  in  another  state  entitled  to,  383. 

does  not  prevent  inquiry  as  to  jurisdiction,  39. 

decrees  of  alimony.  943. 

FUNDS  — 

lack  of,  excuses  delay,  520. 

G. 

GAMBLING  — 

not  cruelty,  283. 
GENERAL  DENIAL  — 

plea  of,  not  inconsistent  with  recrimination,  441. 
or  connivance  or  condonation,  743. 

issue  on,  see  Answer,  743. 
GEORGIA  — 

statutes  relating  to  divorce,  page  1030. 
domicile,  page  1054. 
notice,  page  1071. 

verdict  of  jury  in,  801. 

alimony  without  divorce  in,  1001. 
GIFTS  — 

of  paramour  as  evidence  of  adultery,  159. 
GONORRHOEA  (see' Venereal  Diseases). 

GOOD  BEHAVIOR  — 

effect  of  promise  of,  550. 
GOOD  OF  CHILD  — 

determines  custody,  976. 
GOVERNMENT  EMPLOYEE— 

domicile  of,  42. 
GREAT-UNCLE  — 

marriage  of,  713. 

GROSS  NEGLECT  OF  DUTY  — 
as  a  cause  for  divorce,  382. 
allegation  of,  751, 


INDEX.  1 

Bef  erences  are  to  sections. 

OROSS  NEGLECT  OF  DUTY  (continued)  — 

refusal  to  cohabit  is,  382. 

may  amount  to  cruelty,  281. 

by  wife,  may  be  cruelty,  310. 

as  provocation  of  cruelty,  326. 
■GROSS  SUM  — 

as  alimony,  931. 

OROUND  FOR  ANNULMENT  (see  Annulment). 
CROUND  FOR  DIVORCE  (see  Causes  for  Divorce). 
GUARDIAN  — 

infant  must  sue  by,  728. 
•     ad  litem,  when  necessary,  728. 

of  insane  party,  729. 

cannot  obtain  divorce  for  ward,  729. 

may  obtain  alimony,  729. 

GUILTY  HUSBAND  — 

efifect  of  divorce,  1030. 

right  to  marry  after  divorce,  588. 
GUILTY  PARTY  — 

right  to  remarry,  588. 

when  permission  necessary,  588. 

marriage  with  paramour  after  divorce,  whether  void,  588 
GUILTY  WIFE  — 

provision  for,  on  divorce,  966. 

when  awarded  a  portion  of  property,  966. 
custody  of  children,  976. 

H. 

HABEAS  CORPUS  — 

to  relieve  wife  from  restraint,  295. 

to  obtain  custody  of  child  during  suit,  977. 

after  imprisonment  for  contempt,  939. ' 

HABIT  AND  REPUTE  — 

marriage  by,  777. 
HABITUAL  ADULTERY  (see  Adultery). 

HABITUAL  DRUNKENNESS  (see  Drunkenness)  — 
in  general,  350. 

incapacitating  for  business,  351. 
habit  formed  after  marriage,  352. 

the  drunkenness  must  be  from  liquors,  not  from  opium,  etc.,  353. 
the  habit  must  be  shown  by  proving  frequent  recurrence,  354. 
73 


1138  INDEX. 

Keferences  are  to  sections. 

HABITUAL  DRUNKENNESS  (continued)  — 

negative  evidence  of  temperance  is  not  sufficient  defense,  355i 

the  habit  must  be  continuous,  356. 

drunkenness  and  wasting  estate,  357. 

sufficiency  of  the  evidence,  358. 

habitual  drunkenness  may  be  alleged  in  general  terms,  359; 

HALF  BLOOD  — 

same  as  whole,  in  consanguinity,  710. 

HAPPINESS  — 

not  insured  in  marriage,  386. 

HASTY  DIVORCE  — 
discouraged,  9. 

HAUGHTINESS  — 
as  an  indignity,  390. 

HEAD  OF  FAMILY  — 

rights  and  duties  of  husband  as,  see  Husband. 

HEALTH  — 

injury  to,  as  cruelty,  352-263. 
extent  of  injury,  276. 
as  excuse  for  not  following  husband,  68. 
from  cohabiting  with  impotent  person,  304. 
refusal  of  sexual  intercourse,  304, 
HEIRS  — 

necessary  parties  in  vacating  decree,  1054 
HEREDITARY  INSANITY  — 

evidence  of,  admissible,  663. 
HISTORY  OF  DIVORCE  — 

in  America,  10. 

HOME  — 

policy  of  divorce  law  as  to,  8. 

innocent  party  may  remain  in  after  other  is  guilty,  S99,  469; 

husband's  right  to  expel  wife  from,  299. 

wife  may  enjoin  husband  from  returning  to,  469. 
HOMESTEAD  — 

title  of  on  divorce,  1031. 

when  exempt  from  execution  fdr  alimony,  938. 

not  exempt  when  occupied,  938. 

may  be  attached,  938. 

on  public  lands,  1033. 

may  be  allotted  to  wife  on  divorce,  1031. 

decree  awarding  use  of,  767,  768. 


INDEX.  1139 

„^„„„,,       _  References  are  to  sections. 

HOUSEHOLD  — 

husband's  right  to  manage,  396. 

furniture  not  divided,  983. 

HUSBAND  — 

right  of  reasonable  restraint,  391,  393,  394 
to  protect  himself  and  property,  394. 
to  prevent  her  committing  crime,  394. 
to  management  of  household,  393. 
imprisonment  of  v?ife,  101,  295. 
to  flx  domicile,  68. 
to  expel  wife  from  home.  399. 

to  expel  unsuitable  relatives  or  associates  of  wife,  77,  303. 
to  refuse  to  receive  wife  when  guilty  of  a  cause  for  divorce,  75,  78. 
to  custody  of  children,  976. 
to  control  of  children,  284,  300. 
responsible  for  cruelly  to  children,  301. 
to  recover  alimony  or  part  of  property,  968, 
no  I'ight  to  imprison  wife,  101,  394. 
to  treat  as  servant,  396. 
to  compel  her  to  overwork,  397. 
tyranny  of,  398. 
liability  of  for  support  of  wife  during  suit,  850. 

after  separation,  1000. 
after  divorce,  757. 

where  she  has  a  cause  for  divorce,  95, 
according  to  his  ability,  67. 
neglect  to  provide,  as  a  crime,  100. 
attorney's  fees  in  suit  for  divorce,  875-882. 

where  suit  compromised,  877. 
support  of  child,  decree  silent  concerning,  983. 
after  divorce,  981. 
custody  awarded  to  mother,  983. 
cruelty  of  wife,  805-311. 

HUSBAND  AND  WIFE  — 

mutual  rights  and  duties,  see  Husband  ;  Wife. 
doctrine  of  reasonable  restraint  of  husband,  391,  304. 
no  right  to  seize  wife  and  carry  her  to  his  home,  395. 
to  treat  wife  as  a  servant,'  396. 
to  compel  her  to  overwork,  297. 
management  of  household,  396. 
relative  gravity  of  adultery  by  either,  139. 
wife's  domicile  the  same  as  her  husband's,  46. 
until  she  has  cause  for  divorce,  46. 
or  a  decree  of  separation,  46. 


1140  INDEX. 

Eeferences  are  to  sections. 

HUSBAND  AND  WIFE  (continued)  — 

husband  may  expel  wife  from  home  if  she  is  guilty  of  a  cause  for 
divorce,  399. 
HYSTERIA  — 

as  impotence,  681. 

I. 

IDAHO  — 

statutes  relating  to  divorce,  page  1030. 

domicile,  page  1054. 

notice,  page  1071. 
injury  to  health  not  a  test  of  cruelty,  265. 

IDENTITY  OF  PARTIES  — 

in  suits  for  divorce  on  account  of  adultery,  187. 

established  by  photograph,  187. 
parties  compelled  to  appear  for,  188. 
decree  of  confrontation,  188. 

attorney  compelled  to  reveal  address  of  defendant,  1,88. 
order  to  be  present,  how  enforced,  188. 
presumed  from  marriage  certificate,  777. 

IDIOCY  (see  Insanity  and  Mental  Incapacity). 

IDIOT  — 

mental  capacity  to  marrj',  663. 

IGNORANCE  OF  LAW  — 

does  not  excuse  adultery  in  void  marriage,  582,  585. 

INJUNCTION  — 

allegations  for,  in  petition  for  divorce,  736. 

writ  ne  exeat  regno,  940. 

decree  restraining  sale  of  property,  768. 

ILL  CONDUCT  OF  PLAINTIFF  — 

amounting  to  a  cause  for  divorce,  see  Recrimination. 
less  than  cause,  distinction,  89. 
when  a  bar,  in  cruelty,  326-331. 
desertion,  87-91. 
not  a  bar  in  nullity  pi'oceedings,  435. 

ILLEGITIMATE  CHILDREN  — 
born  of  void  marriage,  568. 
statutes  changing  common  law,  568. 
of  voidable  marriage,  not,  569. 
denying  paternity  of  a  child,  as  cruelty,  277. 
concealing  fact  of  having,  is  not  fraud,  605. 


INDEX.  1141 

Eeterences  are  to  sections. 
ILL  FAME  — 

visiting  house  of,  evidence  of  adultery,  146. 
suflScient  witii  otiier  circumstances,  147. 
circumstances,  how  explained,  148. 

ILLICIT  COHABITATION  — 
marriage  beginning  in,  777. 
ILLINOIS  — 

statutes  relating  to  divorce,  page  1030. 
domicile,  page  1055. 
notice,  page  1071. 
place  of  offense  material  in,  33. 

marriage  in  New  York  after  ex  parte  divorce  void  in,  29,  586. 
doctrine  that  "repeated  cruelty"  is  repeated  violence,  361. 

one  act  of  violence  and  threats  not  sufficient,  361, 
threats  do  not  create  reasonable  apprehension  of  cruelty,  368. 
no  contempt  for  non-payment  of  alimony,  939. 
alimony  without  divorce,  1001. 
division  of  property  in,  963. 
ex  parte  divorce,  void  in  South  Carolina,  3. 
valid  in  Tennessee,  1033. 

IMMATURE  AGE  (see  Want  of  Age). 

IMMORAL  CONDUCT  — 
as  cruelty,  383. 

IMPAIRING  OBLIGATION  OF  CONTRACT  — 

whether  legislative  divorce  does,  410. 

whether  retrospective  operation  of  statute  does,  18. 
IMPEACHMENT  OF  WITNESS  (see  Witness). 

IMPEDIMENTS  FOLLOWING  DIVORCE  - 

decree  prohibiting  marriage  of  guilty  party,  588. 

marriage  pending  appeal,  582a. 

marriage  on  decree  nisi,  582. 

marriage  on  decree  a  mensa,  583. 
IMPERFECT  CONSENT  — 

renders  marriage  voidable,  672. 

IMPERFECT  COPULA  — 

is  impotence,  675. 
IMPOTENCY  — 

in  general,  675. 

impotency  defined,  676. 

physically  incapacitated,  677. 

matrimonial  incapacity,  678. 

physically  incapable,  679. 


1142  INDEX. 

References  are  to  sections. 

IMPOTENCY  (continued)  — 

must  be  permanent  or  incurable,  680. 

forms  of  impotence,  681. 

refusing  intercourse,  683. 

impotence  as  a  fraud,  683. 

what  will  bar  the  action  — adultery  not  a  bar,  684. 

age  of  parties,  685. 

deed  of  separation  not  a  bar,  686. 

recrimination  not  a  bar,  687. 

delay,  688. 

insincerity,  689. 

estoppel  —  impotent  party  as  plaintiff,  690. 

pleading  — in  general,  691. 

how  impotency  alleged,  693. 

different  forms  of  impotency  may  be  joined,  693. 

evidence  —  in  general,  694. 

burden  of  proof,  695. 

triennial  cohabitation,  696. 

inspection  of  the  person,  697. 

power  of  our  courts  to  compel  inspection,  698. 

power  denied,  699. 

when  inspection  necessary,  700. 

inspection  by  commission,  701. 

personal  injury  cases,  703. 

order  for  inspection,  how  enforced,  703. 

effect  of  decree—  whether  divorce  or  annulment,  704. 

impotency  renders  the  marriage  voidable,  705. 
IMPRISONMENT  — 

excuses  desertion,  73. 

of  wife,  unlawful,  101,  394,  395. 

of  wife,  as  cruelty,  395. 

unlawful,  is  dui-ess,  619. 
IMPRISONMENT  FOR  CRIME  — 

as  a  cause  for  divorce,  360-866. 

conviction  must  be  final,  361. 

imprisonment,  in  what  state,  363. 

for  life  as  a  divorce,  366.. 
for  required  time,  364. 

not  a  cause  if  marriage  pending  appeal,  365. 

form  of  allegation  of,  751. 

IMPRISONMENT  FOR  DEBT  — 

contempt  proceedings  not,  939. 
IMPRUDENCE  — 

as  connivance,  483. 


INDEX.  1143 

References  are  to  sections. 
INABILITY  — 

to  attend  to  business  as  test  of  drunkenness,  351. 
INABILITY  TO  LIVE  TOGETHER  - 

as  a  cause  for  divorce,  384 

as  discretionaiy  cause,  388. 

from  drunkenness,  358. 

not  a  test  of  cruelty,  289. 
INCAPACITY  (see  Mental  Incapacity)  — 

physical  incapacity,  see  Impotence. 
INCEST  (see  Consanguinity  and  Affinity). 

INCOME  — 

estimating  alimony,  913. 

of  husband,  913. 

of  -wife,  when  suflEicient,  913. 
INCOMPATIBILITY  OF  TEMPER  — 

when  cruelty,  289. 

INCUMBRANCES  (see  Mortgages;  Liens;  Real  Estate) - 

deducted  in  estimating  alimony,  913,  913. 
INDELICATE  EVIDENCE  — 

not  excluded,  189. 
INDIAN  — 

half  blood  not  a  white  person,  718. 
INDIAN  DIVORCE  — 

effect  of,  34 

marriage  and  polygamy  among,  34 
INDIAN  TERRITORY  — 

statutes,  page  1032. 
INDIANA  — 

attorney  appointed  in  ex  ■parte  divorce  suit,  7. 

statutes  relating  to  divorce,  page  1031. 
domicile,  page  1055. 
notice,  page  1071. 

no  appeal  from  decree  of  divorce,  809. 

alimony  without  divorce,  1001. 
INDIFFERENCE  OF  HUSBAND  — 

as  connivance,  479,  480. 

INDIGNITIES  — 
defined,  390. 

INDIGNITIES  RENDERING  CONDITION  INTOLERABLE  — 
personal  violence  not  necessary,  390. 
need  not  injure  the  health,  364,  390. 
or  endanger  life,  390. 


1144:  INDEX. 

References  are  to  sections. 

INDIGNITIES  RENDERING  CONDITION   INTOLERABLE  (con.)  — 
mental  suffering  sufficient,  390. 
accusation  of  adultery  is  suflScient,  264. 
when  condition  is  intolerable,  364 
misconduct  committed,  drunkenness  is  not,  390. 
excessive  use  of  opiates  is  an  indignity,  390. 
mere  desertion  is  not,  390. 
may  be  condoned,  454. 

INDISCREET  CONDUCT  OF  WIFE  — 
a  defense  to  accusation  of  adultery,  277. 
to  cruelty,  836. 
INFANT  (see  Custody  of  Children,  975;  Want  of  Age,  731-735  j 
Sttpport  of.  After  Divorce,  981,  983,  983)  — 
as  a  party,  738. 

right  to  earnings  after  marriage,  99. 
liability  for  support  of  wife,  98. 
must  sue  by  guardian  ad  litem,  161. 

IN  GROSS  OR  INSTALMENTS  — 

temporary  alimony,  not  in  gross,  850. 
whether  permanent  alimony,  should  be,  981. 
when  statute  permits,  931. 

INHABITANT  (see  Domicile,  40-48)  — 
meaning  of  term,  41. 

INHUMAN  TREATMENT  (see  Cruelty)— 

defined,  359. 
INJUNCTION  — 

restraining-transfer  of  property,  786,  738. 

bond  required,  736. 

INJURED  PARTY  — 

meaning  of  term,  433. 

party  guilty  of  a  cause  for  divorce  is  not,  483. 
INJURY  TO  HEALTH  — 

as  test  of  cruelty,  363. 

not  where  violence  is  the  test,  263, 
INJURY  TO  LIMB  — 

as  cruelty,  356. 

INNOCENCE  — 

presumption  of,  580. 
INNOCENT  AND  INJURED  PARTY,  438. 

right  of,  to  retaliate  in  cruelty,  339. 

INNOCENT  PARENT  — 

I'ight  of,  to  custody  of  children,  976. 


INDEX.  1145 

References  are  to  sections. 

INNOCENT  PARTY  — 

divorce  is  a  remedy  for  an,  438,  438. 

no  rights  in  marriage  after  void  divorce,  587. 

IN  PERSONAM  — 
how  far  suit  is,  5. 
in  New  York  and  North  CaroliDa  divorce  suit  is,  5,  29,  30. 

IN  REM  (see  Proceedings  in  Rem). 

INSANE  DELUSION  — 

in  cruelty,  when  a  defense,  377,  331. 

defined,  660. 

whether  incapacitating  for  marriage,  660. 
INSANE  PARTIES  — 

guardian  cannot  obtain  alimony  or  divorce  for,  729. 

suit  continued  for  insanity,  729. 

ground  for  vacating  decree,  739. 

absence  of,  not  desertion,  739. 
INSANITY  AND  MENTAL  INCAPACITY  — 

in  general,  650. 

insanity  as  a  cause  for  divorce,  651. 

post-nuptial  insanity,  653. 

not  mere  mental  unsoundness,  653. 

the  test  of  business  ability,  654. 

ability  to  understand  the  nature  of  the  marriage  contract,  658. 

to  what  extent  must  the  nature  of  the  marriage  contract  be  under- 
stood, 659. 

insane  delusion,  660. 

lucid  interval,  661. 

hereditary  insanity,  663. 

other  forms  of  mental  incapacity,  663. 

marriage  while  drunk,  664. 

suicide,  665. 

burden  of  proof  and  presumptions,  666. 

eflfect  of  previous  finding  of  insanity  by  inquisition,  667. 

conduct  at  marriage  ceremony,  668. 

deliberate  preparations  for  marriage,  669. 

afiirming  marriage,  670. 

how  marriage  disaffirmed,  671. 

statutes  declaring  marriage  void  or  voidable,  673. 

as  a  defense,  in  adultery,  137. 

nymphomonia  is  not,  137. 
cruelty,  330,  331. 
desertion,  renders  absence  involuntary,  73,  739. 


lliG  INDEX. 

References  are  to  sections. 

INSANITY  AND  MENTAL  INCAPACITY  (continued)  — 
V     excuses  condonation,  453. 
'    delay  in  nullity  suit,  bars,  515. 
malicious  charge  of,  is  cruelty,  280. 

INSINCERITY  — 

as  a  bar,  525-537. 

in  general,  525. 

suit  to  compel  support,  526. 

impotence,  527. 

pecuniary  motive  is  not,  525. 

may  be  in  some  instances,  527. 
conspiracy  to  obtain  alimony,  561. 
INSOLVENT  LAWS  — 

do  not  affect  order  for  alimony,  938. 

INSPECTION  OF  PERSON  — 
in  suits  for  impotence,  697-708. 
when  necessary,  700. 
power  to  order,  698. 
power  to  order,  denied,  699. 
by  commission,  701. 
how  order  enforced,  708. 

INSPECTORS  OF  IMPOTENT  PERSON,  701. 

INSTALMENTS  — 
alimony  in,  931. 

INSTRUCTIONS  TO  JURY,  801. 

INSULT  — 

not  cruelty,  262. 

INSURANCE  POLICY  — 

wife's  interest,  on  divorce,  1028. 

INTENT  — 

evidence  of,  to  desert,  108. 

commit  adultery,  163-176. 

element  of  proof  of  adultery,  144- 
undisclosed,  does  not  excuse  separation,  67. 

INTEREST  — 

on  overdue  instalments  of  alimony,  931. 

INTERLOCUTORY  ORDERS  AND  DECREES  (see  Intonction;  Writ 
NB  Exeat;  Temporary  Alimony)  — 
custody  of  children  during  divorce  suit,  977. 


INDEX.  lliT 

References  are  to  sections. 


INTERMARRIAGE- 

of  relatives,  see  Consanguinity,  710-715. 
of  races,  see  Miscegenation,  716-720. 

INTERNATIONAL  LAW  (see  Conflict  op  Laws). 

INTERPRETATION  OF  STATUTES  (see  Statutes). 

INTERSTATE  COMITY,  34. 

INTERVENTION  — 
of  third  persons,  727. 

'INTOXICATION  (see  Drunkenness). 

INTRODUCTORY  — 

divorce  law  in  general,  1. 

nature  and  definition  of  marriage,  2. 

marriage  not  a  contract,  3. 

nature  of  the  divorce  suit,  4. 

as  a  proceeding  in  rem,  5. 

whether  civil  or  criminal,  6. 

a  triangular  proceeding  —  the  state  as  a  party,  7. 

the  interest  of  the  state,  8. 

the  ecclesiastical  law  and  its  policy,  9. 

our  common  law  of  divorce,  10. 

the  divorce  statutes,  11. 

interpretation  and  effect,  12. 
IOWA  — 

statutes  relating  to  divorce,  page  1032. 
domicile,  page  1055. 
notice,  page  1071. 

alimony  without  divorce,  1000. 

attachment  securing  alimony,  736,  935,  938. 

ISSUE  (see  Pleading)  — 
upon  general  denial,  743. 

J. 

JACTITATION  OF  MARRIAGE  — 

suit  to  have  marriage  declared  valid,  see  note,  756. 

JEALOUSY  — 

amounting  to  insane  delusion,  321. 
as  cruelty,  when  unfounded,  277,  309 
as  provocation  for  cruelty,  326. 
duty  of  wife  to  allay,  277,  326. 
on  part  of  wife,  as  cruelty,  309. 


1148  INDEX. 

References  are  to  sections. 
JEST  — 

marriage  in,  validity  of,  616.  < 

JEWISH  LAW,  380. 

divorce  according  to,  permitted  in  Russia,  38. 
valid  in  America,  33. 

JOINDER  OF  CAUSES  — 
for  divorce,  735. 
ancillary  relief,  736. 

forms  of  impotence,  693.  /  , 

causes  for  total  and  partial  divorce  may  be  joined,  735. 
injunction  and  attachment,  736. 

JOINING  SHAKERS  — 
a  cause  for  divorce,  391. 

JOINT  TENANTS  — 

effect  of  divorce,  1025. 

JUDGE  — 

representing  state,  8. 

cause  never  concluded  against,  443,  462. 

may  vacate  decree  on  own  motion  during  term,  1057. 

JUDGMENT  (see  Decrbe). 

JUDGMENT  OF  ANOTHER  STATE  (see  Foreign  Deceee), 

JURISDICTION  AND  CONFLICT  OF  LAWS—       , 
in  general,  17. 

the  requisites  of  jurisdiction,  18. 
what  courts  have  jurisdiction  of  divorce,  19. 
venue,  as  to  counties,  20. 
jurisdiction  as  limited  by  domicile,  21. 
domicile  at  the  time  of  offense  is  immaterial,  33. 
the  place  vphere  the  offense  was  committed  is  immaterial,  83. 
the  law  of  the  place  of  the  offense  is  immaterial,  34, 
the  place  of  marriage  is  immaterial,  35. 
jurisdiction  by  appearance,  86. 
proceedings  in  rem,  87. 

same  —  personal  service  on  defendant  not  necessary,  28. 
effect  of  divorces  obtained  in  other  states,  39. 

the  doctrine  that  an  ex  parte  divorce  has  no  extraterritorial  effect,  30. 
consequence  of  this  doctrine,  31. 

distinction  between  the  decree  and  the  status  created  by  divorce,  38. 
foreign  divorces,  33. 
Indian  and  tribal  divorces,  34. 
as  limited  by  domicile,  31,  32,  33,  24 


INDEX.  1140 

Eeterences  are  to  sections. 

JURISDICTION  AND  CONFLICT  OF  LAWS  (continued)  — 
of  federal  courts,  in  divorce,  19. 

to  enforce  decree  for  alimony,  19. 
to  annul  marriage  contract,  601. 
lack  of  jurisdiction  as  a  defense,  553. 
allegation  of,  731. 

courts  of  common-law  and  chancery  jurisdiction  have  not,  19. 
jurisdiction  in  all  civil  cases  does  not  relate  to  divorce,  38. 
presumption  of  jurisdiction,  19. 
annul  marriage  for  fraud,  601. 

impotence,  675. 
to  grant  temporary  alimony,  851. 
permanent  alimony,  900. 
alimony  without  divorce,  1000,  1001. 
modify  decrees  of  alimony,  934. 

order  for  custody  of  children,  985. 
punish  for  contempt,  939. 

JURY  — 

in  general,  801. 

not  a  matter  of  right,  suit  in  equity,  6,  801. 

cause  tried  by,  cannot  be  joined  with  others,  735. 

JUSTICE  OF  THE  PEACE  — 

authority  to  marry  must  be  proved,  777. 

K. 

KANSAS  — 

divorce  in,  invalid  in  England,  33. 

conduct  subversive  of  marriage  relation  is  cruelty,  265. 

statutes  relatmg  to  divorce,  page  1033. 

domicile,  page  1055. 

notice,  page  1071. 
alimony  where  divorce  denied,  906. 

KENTUCKY  — 

statutes  relating  to  divorce,  page  1033. 
domicile,  page  1056. 
no  appeal,  908. 
alimony  without  divorce,  1000. 

KICKING - 

as  cruelty,  266. 

KLEPTOMANIA  — 

not  a  mental  incapacity,  660. 


1150  INDEX. 

References  are  to  sections^ 
KNOWLEDGE  — 

110  condonation  without,  453, 
want  of,  excuses  delay,  731. 


LACHES  (see  Delay,  515-534). 

LAND  — 

interest  in,  after  divorce,  see  Ebal  Estate. 

LAPSE  OF  TIME  (see  Delay,  515-524)  — 
excuses  bigamy,  595. 
does  not  destroy  or  dissolve  marriage,  575. 

LARCENY  — 

malicious  charge  of,  a  cruelty,  380. 

LEGISLATIVE  DIVORCES  — 
in  general,  400. 

constitutional  prohibitions,  401. 
implied  prohibitions,  403. 
concurrent  power  of  legislature,  403. 
divorce  while  suit  is  pending,  404. 
causes  for  legislative  divorce,  405. 
notice  to  the  accused  party,  406. 
when  legislative  divorces  are  valid,  407. 
whether  void  as  special  legislation,  408. 
whether  void  as  an  exercise  of  judicial  powers,  409. 
legislative  divorces  as  impairing  the  obligation  of  contracts,  410'. 
effect  of  legislative  divorces,  411. 

LEGITIMACY  OF  CHILDREN  (see  Illegitimate  Children). 

LETTERS  — 

of  parties,  inadmissible  as  evidence  of  connivance,  488. 

as  privileged  communications,  783,  783. 
of  paramour,  admissible  if  received,  176. 
but  not  if  intercepted,  176. 
concealing,  as  evidence  of  adultery,  158. 
as  admissions  of  adulterous  disposition,  175. 
in  corroboration  or  impeachment,  175. 
failure  to  answer,  misconduct  preventing  divorce  for  desertion,  86,  89.. 

LEVITICAL  DEGREES  — 
table  of,  713. 
how  computed,  714. 
a  part  of  common  law,  718. 


INDEX.  1151 

References  are  to  sections. 
LEWD  CONDUCT  — 

of  wife,  justifies  charge  of  adultery,  277. 

of  daughters,  permitted  by  father,  is  cruelty,  383. 
LEX  LOCI  — 

immaterial,  24,  25. 
LIBEL  (see  Pleading,  730-748). 

LIBERAL  INTERPRETATION  (see  Statutes). 

LICENSE  TO  MARRY  — 

marriage  not  void  for  want  of,  722. 

fraud  in  obtaining,  613. 

return  on,  as  proof  of  marriage,  777. 
LIEN  ON  REAL  ESTATE  — 

when  alimony  is,  938,  941. 

as  other  decrees,  938. 
LIFE  INSURANCE  POLICY  — 

effect  of  divorce,  1028. 

LIMITATIONS,  STATUTE  OF  (see  Delay). 

LIMITED  DIVORCE  (see  Divorce  from  Bed  and  Board,  1022), 

LIS  PENDENS  — 

whether  divorce  suit  is,  938. 

LIVING  IN  ADULTERY,  130. 

one  act  not  sufficient  proof  of,  130. 

clandestine  acts  not  sufficient,  130. 

as  husband  and  wife,  130. 

cohabitation  one  day  sufficient,  130. 

separating  and  living  in  adultery,  as  a  cause  for  divorce,  131. 

LIVING  IN  SEPARATION  — 

voluntary  separation,  not  desertion,  67. 
as  a  cause  for  divorce,  381. 

in  Rhode  Island,  act  of  1893,  see  Statutes  op,  page  1046. 

LIVING  TOGETHER  — 

aa  evidence  of  adultery,  152. 

LOATHSOME  DISEASE  (see  Venereal  Disease). 

LOCALITY  — 

of  delictum,  immaterial,  24. 

of  divorce  suit,  see  Venue  ;  County. 

LOCKING  DOORS  — 

as  evidence  of  opportunity  to  commit  adultery,  149, 

LOCKING  OUT  — 

as  acquiescence  in  desertion,  90. 


1152  ]  INDEX. 

Eeferences  are  to  sections. 
LORD  ADVOCATE  — 

appearance  of  in  divorce  suit,  7. 

LOST  LETTER  — 

evidence  of  contents,  175. 

LOUISIANA  — 

statutes  relating  to  divorce,  page  1034 
notice,  page  1073. 
only  like  offenses  are  sufficient  in  recrimination,  440. 
place  of  offense  material  in,  33. 
no  alimony  without  divorce,  1000. 
decree  nisi  in,  1031. 

LOVE  — 

inability  to  love,  not  cruelty,  387. 

LUCID  INTERVAL  — 

of  insane  person,  marriage  in,  660. 
proof  of,  666. 
cohabitation  during,  670. 

LUNACY  (see  Mental  Incapacity). 

LUNATIC  (see  Insane  Parties;. 

M. 

MAIDEN  NAME  — 

right  to  retain  after  divorce,  1039. 

in  averment  of  marriage,  732. 
MAINE  — 

statutes  relating  to  divorce,  page  1034 
domicile,  page  1056. 

discretionary  divorce  in,  388. 

cruelty  must  be  personal  violence  in,  361. 

MAINTENANCE  OF  CHILDREN  (see  Custody  of  Childebn,  97." 

after  divorce,  981,  983,  983. 
MAINTENANCE  OF  WIFE  — 

arrest  to  secure,  100. 

alimony  without  divorce,  1000. 
MALFORMATION  — 

as  impotence,  693. 

MALICE  — 
defined,  58. 

does  not  imply  hatred  or  enmity,  58. 
cruelty  apprehended  from  actual  malice,  37L 


INDEX.  1153 

References  are  to  sections. 
MALICIOUS  CHARGE  — 
of  adultery,  277,  278. 
impotence,  379. 
crime,  280. 
insanity,  380. 
attempt  to  poison,  280. 
larceny,  280. 
incest,  280. 
bigamy,  280. 
arson,  280. 

MALICIOUS  DESERTION  — 
defined,  58. 

MALICIOUS  PROSECUTION  — 
as  cruelty,  280. 

MANDAMUS— 

to  dismiss  petition  for  want  of  verification  of  petition,  738. 
MARITAL  CONNECTION  — 

refusal  of,  as  cruelty,  304 
desertion,  71. 
MARKS  OF  VIOLENCE  — 

as  evidence  of  cruelty,  342. 

MARRIAGE  (see  Void  Mabhiage;  Voidable  Marriage)  — 
nature  of,  2. 
not  a  contract,  3. 

but  a  status,  2. 
a  "  gateway  to  repentance  and  virtue,"  173,  380. 
allegation  of,  in  petition  for  divorce,  733. 
denial  of,  in  answer,  753. 
proof  of,  in  divorce  suit,  777. 
in  nullity  suit,  853. 

on  application  for  temporary  alimony,  853. 
presumption  of,  after  removal  of  disability,  580,  581. 
after  divorce,  581,  777. 

no,  where  parties  are  ignorant  of  disability,  581. 
no,  where  parties  are  ignorant  of  removal  of  disa- 
bility, 581. 
annulment  of,  for  fraud,  error,  duress,  600-634. 

insanity  or  mental  incapacity,  650-672. 
physical  incapacity,  675-705. 
consanguinity  and  affinity,  710-715. 
prior  marriage,  575-591. 
miscegenation,  716-730. 
want  of  age,  731-725. 
mock  marriage,  616. 
73 


1154  INDEX. 

References  are  to  sections. 

MARRIAGE  (continued)  — 

annulment  of,  not  necessary  when  prior  marriage  exists,  585. 

one  not  a  party  to  prior  marriage  may  marry  without 
decree,  585. 
void  after  decree  nisi,  583. 

of  separation,  583. 
void  decree,  in  full,  586. 

ax  parte  decree,  if  marriage  in  New  York,  29,  586. 
void  during  appeal,  538a. 

after  decree  by  default,  does  not  prevent  new  trial,  775. 
pending  appeal,  is  void,  135,  538a.     See  contra,  361,  368. 
to  party  guilty  of  adultery,  when  void,  135. 
to  convict,  when  void,  365. 
after  divorce,  effect  on  alimony,  933. 
after  decree  obtained  by  fraud,  1053. 
validity  of,  determined  by  place  where  entered  into,  35. 

but  law  of  residence  controls  as  to  divorce,  35. 
proceeding  to  determine  validity  of,  566. 
proceeding  to  have  marriage  declared  valid,  756,  note, 
void  marriage,  in  general,  568. 
as  a  defense,  551. 

MARRIAGE  CERTIFICATES  — 
as  proof  of  marriage,  777. 

MARRIAGE  SETTLEMENTS  — 
power  to  disturb,  on  divorce,  965. 

English  divorce  act  concerning,  965.    See,  also,  page  1067. 
effect  of  divorce,  1037. 

MARRIED  WOMEN  — 
act  relating  to : 

effect  of,  upon  husband's  right  to  control,  393,  393. 
whethei;  relieves  husband  from  duty  to  support,  850. 

support  of  child  in  her  custody, 

983. 
liability  to  pay  temporary  ali- 
mony, 850. 

liability  for  attorney  fees,  876. 
MARYLAND  — 

statutes  relating  to  divorce,  page  1035. 

domicile,  page  1056. 

notice,  page  1073. 
first  law  of,  3. 
alimony  without  divorce,  1000. 


INDEX.  1155 

References  are  to  sections. 
MASSACHUSETTS — 

statutes  relating  to  divorce,  page  1035. 

domicile,  page  1056. 

notice,  page  1073. 
early  law  of,  2. 

driving  wife  away  is  not  desertion,  64. 
desertion  as  a  crime  in,  100. 
conflicting  definitions  of  cruelty,  861. 
alimony  without  divorce,  1000. 

MASTURBATION  — 
when  cruelty,  283. 

MATRIMONIAL  INCAPACITY,  678. 

MAXIMS  — 

eocpressio  unius  est  exclusio  alterius,  1000,  1030. 
he  who  comes  into  equity  must  come  with  clean  hands,  425,  426, 427. 
does  not  refer  to  conduct  in  other  transactions,  486,  487,  606. 
a  doctrine  of  recrimination,  427. 
volenti  nonfit  injuria,  475,  481. 
,        fraud  vitiates  everything,  1050. 

a  rule  not  applied  where  the  reasons  for  it  do  not  exist,  932. 
a  party  cannot  take  advantage  of  his  own  wrong,  47,  92,  690. 

MEDICINE  AND  MEDICAL  ATTENDANCE  — 
to  withhold  necessary,  is  cruelty,  273. 

MENACE  — 

as  cruelty,  268,  271,  670,  671. 

MENTAL  ANGUISH  (see  Mental  Suffering). 

MENTAL  INCAPACITY  (see  Insanity). 

MENTAL  SUFFERING  — 
as  cruelty,  374-290. 

physical  effect  of,  must  be  alleged,  334. 
evidence  of,  275. 
reasons  for  physical  test  of,  276. 
mere  unhappiness  is  not,  886. 
conduct  causing,  is  an  indignity,  390. 

MICHIGAN  — 

statutes  relating  to  divorce,  page  1036. 

domicile,  page  1057. 
desertion  as  a  crime  in,  100. 
wife  liable  for  attorney's  fees,  876. 
alimony  without  divorce,  1001. 


1156  INDEX> 

References  are  to  sections. 
MINNESOTA  — 

statutes  relating  to  divorce,  page  1037. 
domicile,  page  1057. 
notice,  page  1073. 
dower  allowed  although  prior  marriage  existing,  578. 
alimony  after  divorce,  936. 
alimony  without  divorce,  see  case  in  936. 

MINOR  (see  Custody  and  Support  op  Children  ;  Infant)  — 
marriage  of,  see  Want  of  Age,  731-735. 
may  disaffirm  marriage,  734. 

MINUTES  OF  JUDGE  — 

not  a  decree  of  divorce,  579. 

MISCEGENATION  — 
in  general,  716. 
mulatto,  7]  7. 

persons  of  color  and  white  persons,  718. 
civil  rights  bill,  or  fourteenth  amendment,  719. 
such  marriages  valid  unless  declared  void  by  statute,  720, 

MISCONDUCT  OF  PLAINTIFF  — 

to  bar  divorce,  need  not  be  a  cause  for  divorce,  87. 
for  desertion,  87-91. 
conduct  provoking  cruelty,  326-381. 
retaliation  not  always  a  bar,  339. 

MISERLY  HABITS  — 
as  cruelty,  296. 

MISSISSIPPI  — 

statutes  relating  to  divorce,  page  1037. 
domicile,  page  1057. 
notice,  page  1073. 
alimony  without  divorce,  1000. 

MISSOURI  — 

statutes  relating  to  divorce,  page  1038. 

domicile,  page  1057. 

notice,  page  1073. 
legislative  divorce  in,  void,  403. 
desertion  as  a  crime  in,  100. 
alimony  without  divorce,  1000. 

MISTAKE  (see  Fraud,  Error  and  Duress)— 
invalidating  marriage,  616. 
belief  that  ceremony  was  valid,  615, 


INDEX.  1157 

References  are  to  sections. 
MISTAKE  OF  FACT  — 

excuses  bigamy  under  decree  nisi,  580. 
adultery  in  void  marriage,  136. 
and  law,  may  render  marriage  voidable,  616. 
effect  of  negligence  in,  137. 
relying  on  statements  of  attorney,  137. 
MISTAKE  OF  LAW  — 

does  not  excuse  bigamy  under  decree  nisi,  580. 

adultery  in  void  marriage,  134,  136. 
MISTAKE  OF  WITNESS  — 

new  trial  granted  for,  192  note,  934. 

to  permit  party  to  correct  testimony,  193  note. 
MOCK  MARRIAGE  — 
voidable,  616. 

MODERATE  CORRECTION  — 
doctrine  of,  293. 

MODIFICATION  — 

of  decree  for  alimony,  934 
MONGOLIAN  — 

not  a  white  person,  718. 
MONOMANIA  — 

when  sufficient  to  prevent  marriage,  653,  660. 
MONTANA  — 

statutes  relating  to  divorce,  page  1038. 

domicile,  page  1058. 

notice,  page  1073. 
MORPHINE  — 

use  of,  not  drunkenness,  353. 

excessive  use  of  opiates  is  an  indignity,  390. 

cruelty  during  delirium  from  morphine  habit,  324. 

MORTGAGE  — 

securing  alimony,  931. 

compelling  husband  to  give,  941. 

foreclosure  of,  in  another  state,  943. 

extinguished  by  marriage,  not  revived  by  divorce,  961. 

by  wife  to  husband  on  divorce,  963. 
MOSAIC  DIVORCE  — 

for  uncleanness,  380. 

MULATTO  — 

meaning  of  word,  717. 
MUTUAL  ADULTERY  — 

no  divorce  granted  in  case  of,  429. 


1158  INDEX. 

References  are  to  sections, 
MUTUAL  DISLIKE  — 

conduct  arising  from,  not  cruelty,  288. 
MUTUAL  FAULT  — 

in  cruelty,  336-331. 

conduct  provoked  by  plaintiff  is  not  cruelty,  336. 

conduct  disproportionate  to  provocation,  337. 

provocation  not  considered,  338. 

retaliation,  when  not  a  bar,  338. 

fighting  and  quarrels,  in  cruelty,  880,  38ll 

N. 

NAME  — 

identity  of  person  presumed  from  same  name,  777. 

of  wife,  after  divorce,  1039. 

right  to  assume  maiden  name,  1039. 

variance  in  pleading  and  proof,  185. 

ot  particeps  eiHminis,  when  required,  181. 

obtaining  decree  in  name  of  other  spouse,  1053. 
NATURE  OF  DIVORCE  SUIT  — 

in  general,  4. 

a  triangular  proceeding,  7. 

sui  generis,  4. 

whether  civil  or  criminal,  6. 

generally  in  equity,  6. 

whether  ex  parte  suit  is  in  rem,  5. 

whether  a  cause  for  divorce  is  a  tort,  6. 
NEBRASKA  — 

statutes  relating  to  divorce,  page  1039. 
domicile,  page  1058. 
notice,  page  1073. 

violence  not  a  test  of  cruelty  in,  365. 

alimony  after  divorce,  936. 
NECESSARIES  — 

attorney's  fee  in  divorce  suit,  876. 

alimony,  suit  for,  instead  of  at  law,  1000. 
NE  EXEAT,  WRIT  OF  — 

when  granted,  940. 
NEGLECT  — 

as  desertion,  54,  66. 

as  an  indignity,  390. 
NEGLECT  OF  DUTY  (see  Gross  Neglect  of  Duty,  383)- 

as  a  crime,  see  Desertion  as  a  Crime,  100, 


INDEX.  1159 

References  are  to  sections. 

NEGLECT  TO  PROVIDE  — 

as  a  cause  for  divorce,  370-378. 

allegatioQ  of,  751. 

wilful  desertion  is  not  sufficient,  374. 

neglect  must  be  wilful  and  cruel,  374. 

there  must  be  neglect  coupled  with  ability  to  provide,  373. 

may  be  condoned,  454. 

allegation  of,  878. 

NEGROES  AND  WHITES  — 

marriage  of,  prohibited,  716-720. 

NEPHEW  AND  AUNT  — 
marriage  of,  713. 
uncle's  widow,  marriage  of,  713. 

NEVADA  — 

statutes  relating  to  divorce,  page  1039. 

domicile,  page  1058. 

notice,  page  1073. 
NEW  HAMPSHIRE  — 

statutes  relating  to  divorce,  pape  1040. 

domicile,  page  1058. 

notice,  page  1073. 
early  law  of,  11. 
place  of  offense  material  in,  33. 

NEW  JERSEY  — 

statutes  relating  to  divorce,  page  1041. 

domicile,  page  1058. 

notice,  page  1073. 
history  of  law  in,  11. 
desertion  as  a  crime  in,  100. 

party  bound  by  undisclosed  consent  to  desertion,  106. 
habitual  drunkenness  a  cause  for  divorce  if  cruelty,  381. 
alimony  without  divorce,  1001. 
no  division  of  property,  963. 

NEW  MEXICO  — 

statutes  relating  to  divorce,  page  1041. 
domicile,  page  1059. 

notice,  page  1074. 
NEW  TRIAL  — 
in  general,  808. 

general  provisions  of  statute  applicable.  808. 
vacating  decree  obtained  by  fraud,  1057. 
not  granted  if  fraud  concerned  jurisdiction,  1057. 


1160  INDEX. 

Eeterences  are  to  sections. 

NEW  TRIAL  (continued)  — 

setting  aside  default,  personal  service,  775. 

constructive  service,  825. 

marriage  does  not  prevent,  775. 

on  the  ground  of  mistake,  934,  192  note. 

raodiflcation  of  permanent  alimony,  933,  984 

granting  alimony  after  divorce,  936. 

modification  of  order  for  custody  of  children,  985. 
NEW  YORK  — 

statutes  relating  to  divorce,  page  1041. 
domicile,  page  1059. 

history  of  lavi?  in,  11. 

dower  allowed  although  prior  marriage  is  undissolved,  578. 
not  barred  in,  by  ex  parte  decree  in  another  state,  30. 

ex  parte  divorce  of,  no  effect  in,  30,  586. 
bigamy  after,  in,  80. 

marriage  in,  after  ex  parte  divorce,  void  every  where,  30,  586. 

service  by  publication  in,  27,  30.  / 

husband's  domicile  in,  does  not  give  jurisdiction  over  wife,  47. 

bill  of  particulars  in,  182,  739. 

desertion  as  a  crime  in,  100. 

injury  to  health  is  a  test  for  cruelty,'  263. 

mental  suffering  not  sufiScient,  263. 

showing  on  appeal  for  temporary  alimony,  854. 

no  division  of  property,  962. 

alimony  without  divorce,  1001. 

alimony  where  divoi'ce  is  denied,  906. 

alimony  on  decree  of  separation  refused,  1022. 

NEXT  FRIEND  (see  Parties). 
NIECE  — 

marriage  of,  713. 
NISI  DECREE  — 

effect  of,  1021. 

NON-COHABITATION,  MERE  — 
not  desertion,  70. 

NON-RESIDENT  — 

notice  to,  see  Process  and  Constructive  Service. 

right  to  obtain  divorce,  see  Domicile,  40-48. 

may  obtain  divorce  on  cross-petition,  47. 

wife,  rights  of,  47,  48. 

should  be  allowed  to  sue  husband,  48. 
NON-SUPPORT  — 

when  desertion,  66. 


INDEX.  1161 

Eoterences  are  to  sections. 
NORTH  CAROLINA  — 

statutes  relating  to  divorce,  page  1043. 
domicile,  page  IO.jO. 
notice,  page  1074. 
history  of  law  in,  2, 
doctrine  as  to  ex  parte  divorce,  39. 
New  York  doctrine  approved,  39. 
alimony  without  divorce  in,  1000,  1001. 
desertion  as  a  crime  in,  100. 
NORTH  DAKOTA  — 

statutes  relating  to  divorce,  page  1043. 
domicile,  page  1059. 
service  by  publication,  page  1087. 
code  of,  see  page  1087. 

residence  of  plaintiff,  see  California  Code,  page  1077. 
injury  to  health  not  a  test  of  cruelty  in,  365. 
alimony  without  divorce  in.  1001. 
alimony  where  divorce  is  denied,  906. 
NOTICE  (see  Process  and  Constructive  Service,  815-835)  — 
to  non-resident  required  if  possible,  559. 

by  constructive  service,  817. 
publication  of  summons,  831. 

statutes  relating  to  constructive  service,  pages  1069, 
1076. 
effect  of  decree  obtained  without,  against  non-resident,  559. 
of  application  for  temporary  alimony,  746. 
of  contempt  proceedings,  939. 
personal  service,  out  of  the  state,  824. 
lis  pendens,  938. 

to  tradesmen  not  to  trust  wife,  alimony  granted,  1003. 
law  of,  not  applicable  to  chastity,  606. 
not  necessary  in  legislative  divorce,  406. 

NULLITY  SUIT  (see  Annulment  of  Marriage). 

NYMPHOMANIA  — 

not  mental  incapacity,  137. 

o. 

OATH  (see  Verification). 
OBLIGATION  OF  CONTRACT  — 

legislative  divorce  does  not  impair,  410. 

marriage  not  a  contract  within  meaning  of,  3,  410. 

OBSCENE  EVIDENCE  — 
not  excluded,  189. 


1162  INDEX. 

Eef  erences  are  to  sections. 
OBSCENITY  — 

not  connivance,  481. 
OBSTINATE  — 

when  desertion  is,  57. 

OBTAINING  DIVORCE  — 
as  a  cause  for  divorce,  883. 

OFFENDING  IN  HOPE  OF  DIVORCE  — 
when  collusion,  500. 

OFFENSES  — 

joinder  of  in  suit  for  divorce,  735. 

neglect  to  provide  is  a  continuing  offense,  100. 

desertion  is  a  continuing  offense,  1003. 

OFFER  OF  SUPPORT  — 

is  a  defense  to  crimipal  proceedings  for  desertion,  100. 
application  for  temporary  alimony,  858. 

OFFER  TO  RETURN  — 

effect  of,  in  desertion,  78-79. 

after  separation  by  agreement,  02. 

is  not  condonation  unless  accepted,  453. 

OFFERING  INDIGNITIES  (see  Indignities). 

OHIO  — 

statutes  relating  to  divorce,  page  1048. 

domicile,  page  1059. 

notice,  page  1074. 
alimony  after  divorce,  936. 
alimony  without  divorce,  1001. 
OKLAHOMA  — 

jurisdiction  of  county  court  in,  19. 
statutes  relating  to  divorce,  page  1043. 

domicile,  page  1060. 

notice,  page  1075. 

ONE  ACT  OF  CRUELTY  — 

whether  sufBcient,  268. 
OPEN  AND  CLOSE  — 

right  to,  802. 
OPEN  COURT  — 

defined,  800. 
OPENING  AND  VACATING  DECREE  — 

setting  aside  default,  775. 

annulling  decree  for  fraud,  1050-.-1057. 
OPIATES  (see  Opium  ;  Morphine). 


INDEX.  11G3 

References  ore  to  sections;. 

OPINION  OF  WITNESS  — 
as  to  drunkenness,  858. 
as  to  adultery,  203. 
admitted  on  ground  of  necessity,  203. 
as  to  danger  when  threats  are  made,  271. 
as  to  physical  condition  of  plaintiff,  275. 
OPIUM  — 

excessive  use  of,  not  drunkenness,  353. 
nor  cruelty,  353. 
but  is  an  indignity,  300. 
ORDER  FOR  ALIMONY  (see  Decree  for  Alimony)  —       • 
form  of,  temporary  alimony,  761. 

permanent  alimony,  930,  944. 
attorneys'  fees,  880. 
OREGON  — 

statutes  relating  to  divorce,  page  1044. 
domicile,  page  1060. 
notice,  page  1075. 
cross-suit  is  a  counter-claim,  745. 
division  of  property  on  divorce,  985. 
OUT  OF  DOORS  — 

turning  wife  out  is  cruelty,  299. 

P. 

PARAMOUR  — 
as  a  witness,  194. 
'   should  be  corroborated,  195,  779. 

but  not  absolutely  required,  195,  779. 

failure  to  obtain  testimony  of,  194. 

may  claim  protection,  if  answer  tends  to  criminate,  194 

confessions  may  be  disregarded.  196,  781. 

declarations  not  in  presence  of  accused,  197,  781. 

testimony  of  husband  and  wife  of  paramour,  198,  781. 
as  a  party,  760. 

name  of,  not  required  if  unknown,  181. 
character  of  may  be  shown,  174. 
letters  of,  175. 

husband  or  wife  of,  as  witness,  198. 
affection  for,  157. 

gifts  by  as  evidence  of  adultery,  159. 
wife  visiting  lodgings  of,  evidence  of  adultery,  150. 
receiving  visits  of,  151. 
marriage  of  to  defendant  after  divorce  valid,  588. 


1164.  INDEX. 

References  are  to  seotiona 
PARDON  — 

effect  on  divorce  for  crime  and  imprisonment,  363. 

PARENT  — 

right  to  have  cliild's  marriage  annulled,  736. 
,  bring  suit  for  divorce  for  child,  736. 
consent  to  marriage,  733. 
object  of  statute,  733. 
duty  of,  to  support  after  divorce,  981,  983,  933. 

PARENT  AND  CHILD  — 

relation  not  dissolved  by  divorce,  981. 

PARLIAMENTARY  DIVORCE  (see  Legislative  Divorce). 

PARTICEPS  CRIMINIS  (see  Paramour). 

PARTIES  — 

who  may  maintain  a  suit  for  di voire  or  annulment,  738. 

third  persons  as  defendants  —  right  to  intervene,  737. 

coverturp,  infancy  and  guardianship,  728. 

insane  persons  as  parties,  739. 

death  of  parties  and  revival  of  suit,  739a. 

parties  on  application  to  vacate  deci-ee,  1057. 

PARTY  CANNOT  TAKE  ADVANTAGE  OF  HIS  OWN  WRONG,  47 
93,  690. 

PAUPER  — 
costs  of,  807. 

PENAL  — 

divorce  law  not  penal,  13. 
divorce  not  for  punishment,,  31.5. 

PENDENCY  OF  SUIT  (see  Lis  Pendens)  — 

excuses  cohabitation,  93. 
PENETRATION  — 

imperfect,  as  impotence,  675. 
PENNSYLVANIA  — 

statutes  relating  to  divorce,  page  1044. 
domicile,  page  1060. 
notice,  page  1075. 

place  of  offense  material  in,  33. 

desertion  as  a  crime  in,  100. 

divorce  in,  void  in  England,  33. 

alimony  without  divorce,  1001. 

dower  after  decree  in  rem,  1033. 
PENURIOUSNESS  — 

of  husband  as  cruelty,  296. 


INDEX.  1165 

Eeferonoea  are  to  seotiong, 

PERMANENT  ALIMONY^ 
in  general,  900. 

permanent  alimony  of  the  common  law,  901. 
permanent  alimony  on  decree  of  separation.  903. 
distinction  between  common-law  and  statutory  alimony,  903. 
liability  of  wife  to  pay  the  husband  alimony,  904. 
when  alimony  is  refused,  905. 
annulment.of  marriage,  905a. 
alimony  where  a  divorce  is  denied,  906. 
when  a  guilty  wife  may  receive  alimony,  907. 
the  amount  of  the  permanent  allowance,  908. 
compensation  for  the  wife's  property  rights,  909. 
compensation  for  injuries,  910. 
compensation  for  loss  of  support,  911. 
the  husband's  income  and  property,  913. 
the  wife's  income  and  property,  918. 
the  support  of  the  children,  914. 
agreements  relating  to  alimony.  915. 
other  circumstances  which  determine  the  amount,  916. 
allowance  where  the  husband  has  no  property,  917. 
pleading  and  practice,  918. 
The  Decree  for  Alimony,  how  Enforced: 

in  general,  930. 

whether  in  gross  or  in  instalments,  931. 

when  the  permanent  allowance  terminates.  933. 

whether  marriage  of  the  divorced  wife  terminates  her  alimony, 
933. 

revision  of  decree  for  alimony,  933a. 

when  permanent  alimony  will  be  revised,  934. 

alimony  where  there  is  no  personal  service,  935. 

alimony  after  divorce,  93B. 

when  alimony  is  exempt,  937. 

the  wife  as  a  creditor  of  the  husband,  938. 

attachment  for  contempt,  939. 

writ  ne  exeat  regno,  940. 

other  means  of  enforcing  payment,  941. 

suit  on  foreign  decree  for  alimony,  943. 

suit  on  decree  for  alimony  rendered  in  another  state,  943. 

PERMANENT  ALLOWANCE  — 

compared  with  alimony  on  divorce  from  bed  and  board,  903. 

PERMISSION  TO  MARRY  — 

when  necessary  for  guilty  party  after  divorce,  588. 

PERSON  OP  COLOR— 
defined,  7ia 


11 G6  INDEX. 

Eeferences  are  to  sections. 

PERSONAL  JUDGMENT  (see  Proceedings  in  Rem). 

PERSONAL  NOTICE  — 

of  divorce  suit,  see  Notice, 

PERSONAL  PROPERTY  — 

subject  to  claim  for  alimony,  938. 

PERSONAL  SERVICE  (see  Summons). 

PERSONAL  VIOLENCE  — 
as  a  test  of  cruelty,  231-369. 
forms  of  as  cruelty,  360-266. 

PERSONAM  (see  Proceedings  in  Rem). 

PETITION  (see,  also,  Pleading)  — 
in  general,  730. 
allegation  of  jurisdiction,  731. 

marriage,  733. 

desertion.  111. 

adultery,  178, 

cruelty,  333-337. 

impotency,  691. 

ancillary  relief,  736. 
prayer,  737. 
verification,  738. 
must  be  signed  by  party  or  attorney,  730, 

PETITION  FOR  ALIMONY  — 

whether  by  motion  or  petition,  746,  747. 
application  for  temporary  alimony,  746. 
application  for  permanent  alimony,  747. 
petition  for  alimony  without  divorce,  759. 
PETITION,  FORMS  OF  — 

petitions  for  divorce  for  various  causes,  751. 

for  cruelty,  753. 
petitions  for  annulment  of  marriage,  755,  756. 

maintenance  of  child  after  divoroe>  757. 
alimony,  760. 

alimony  without  divorce,  759. 
PETTY  VEXATIONS  — 

as  cruelty,  386. 
PHYSICAL  EXAMINATION,  697,  703. 

PHYSICAL  TEST  — 

of  mental  suffering,  374. 
reasons  for,  276. 


INDEX.  1167 

References  are  to  sections. 

PHYSICALLY  INCAPACITATED  — 
is  impotence,  677. 

PHYSICIANS  — 

testimony  of,  161,  274. 

PIMPS  — 

as  witnesses,  201. 

PLACE  (see  Domicile)  — 

of  marriage,  immaterial,  25. 

allegation  of  cruelty,  335. 

where  offense  committed,  immaterial,  33. 

where  adultery  committed,  immaterial,  128. 

material  where  desertion  is  a  crime,  100. 
statutes  relating  to  place,  S3, 
venue  as  to  county,  20. 

PLAINTIFF  (see  Parties)  — 

must  be  an  innocent  and  injured  party,  432. 
cannot  procure  divorce  for  defendant,  50.5,  1052. 
misconduct  of,  barring  divorce  for  desertion,  87-91. 

PLEADING  — 

the  petition,  730. 

allegation  of  jurisdiction,  731. 

how  marriage  alleged,  732. 

plaintiff  need  not  anticipate  defenses,  733. 

premature  suit,  734. 

joinder  of  causes,  735. 

causes  for  ancillary  relief  may  be  joined,  786. 

the  prayer,  737. 

verification,  788. 

bill  of  particulars,  739. 

supplemental  pleadings,  749. 

amendments,  741. 

demun-er,  742. 

answer,  743. 

cross-bill  for  affirmative  relief,  744 

statutes  permitting  cross-bills,  745. 

applications  for  temporary  alimony,  746. 

applications  for  permanent  alimony,  747. 

decree,  748. 

indefinite  pleading,  cured  by  bill  of  particulars,  182,  789. 

motion  to  make  definite,  182,  739 
but  not  by  demurrer,  743. 
redundant  and  irrelevant  matter,  743. 


1168  INDEX. 

Eeterences  are  to  sections. 

PLEADING  (continued)  — 

allegation  of  desertion,  111-114 
cruelty,  333-337. 
adultery,  178. 

certainty  as  to  time  and  place,  179. 
habitual  drunkenness,  359. 
failure  to  support,  378. 
separation,  when  necessary  to  allege,  337. 
irapotency,  691-698. 
necessity  of  pleading  defenses: 

recrimination,  441,  443. 
connivance,  483,  489. 
collusion,  510. 
condonation,  463. 
delay,  524. 
defenses  need  not  be  anticipated,  733. 

POISON  — 

attempt  to,  is  cruelty,  366. 

threats  of  poisoning,  371,  308. 

threats  and  attempts  of  wife,  308. 

malicious  charge  of  attempts  to  poison  as  cruelty,  380. 

POLICY  OF  LAW  — 

confidential  communications,  783,  783. 
communications  of  husband  and  wife,  783. 
annulment  for  ante-nuptial  unchastity,  380. 
to  encourage  reformation,  73,  79. 

reconciliation,  454,  456. 

marriage,  8,  381. 
to  prevent  divorce,  8. 
alienation  of  real  estate,  931. 
divorce  for  insanity  not  against,  651. 
prevention  of  fraudulent  divorce,  1050. 

POLYGAMY  (see  Bigamy). 

POST-NUPTIAL  INSANITY  — 
a  cause  for  divorce,  651,  653. 

POVERTY  OF  HUSBAND  — 

released  from  contempt  on  proof  of,  939. 
alimony  where  husband  has  no  property,  915. 
does  not  excuse  desertion  by  wite,  66.  . 
not  defense  to  appeal  tot  temporary  alimon}^  856. 

POVERTY  OF  WIFE  — 

proof  of,  on  application  for  alimony,  855. 


INDEX.  11G9 

Eeferences  are  to  sections. 


PRACTICE  — 

under  code,  see  Statutes. 
ultimate  facts,  and  not  evidence,  alleged,  333. 
of  ecclesiastical  courts,  when  followed,  744. 
provisions  of  code  as  to  depositions  followed,  776. 
when  suit  is  premature,  734. 

PRAYER  (see  PLEADlNa,  738)  — 
relief  must  not  exceed,  737. 
may  be  amended,  737. 

PRECONTRACT  — 

disability  of,  not  a  part  of  our  common  law,  565. 

PREGNANCY  — 

when  concealed  is  a  fraud,  606. 

ante-nuptial,  605-610. 

unknown,  at  marriage,  as  a  cause  for  divorce,  379. 

effect  of  still-born  child,  379. 

cruelty  during,  318. 

PREJUDICE  — 

dismissal  without,  555,  734 

PREMATURE  SUIT  — 

dismissal  of,  not  a  bar,  555. 
filing  amended  petition  in,  133. 
when  divorce  granted  in,  734. 

PRESUMPTION  — 

of  divorce,  579,  580,  777. 
jurisdiction  of  divorce,  19. 
marriage  after  divorce,  580. 

after  removal  of  disability,  681. 
death,  584. 
condonation  from  cohabitation,  457. 

from  delay,  516. 
innocence,  580. 
of  legitimacy,  615. 
in  favor  of  marriage,  580,  581. 
of  sanity,  666,  667. 

that  a  condition  proved  continues,  80,  104,  581. 
continued  insanity,  137,  667. 
continued  cohabitation,  337. 
continued  adultery,  153. 

illicit  intercourse  in  void  marriage,  580. 
sexual  intercourse  during  cohabitation,  467. 
consent  to  separation,  103. 
74 


117C  INDEX. 

Eeterenoes  are  to  sections. 

PRESUMPTION  (continued)  — 

justification  for  separation,  105. 

of  adultery  from  venereal  disease,  161. 

from  wife's  departure,  290. 
PRIMA  FACIE  CASE  — 

desertion,  103,  106. 

PRIOR  MARRIAGE  UNDISSOLVED  — 
in  general,  575. 

general  doctrine  of  this  chapter,  576. 

when  prior  marriage  is  undissolved  second  marriage  is  void,  577^- 
when  second  marriage  is  voidable  under  statutes,  578. 
void  although  divorce  subsequently  obtained,  579. 
presumptions  in  favor  of  marriage,  580. 
knowledge  that  disability  has  been  removed,  581. 
marriage  before  decree  nisi  is  made  absolute,  583. 
marriage  during  time  for  appeal,  582a. 
■  marriage  after  a  decree  a  mensa,  583. 
belief  that  prior  marriage  was  dissolved  by  death,  584. 
belief  that  prior  marriage  was  dissolved  by  divorce,  585. 
marriage  after  void  decree  of  divorce,  586. 
decree  obtained  by  fraud,  587. 
remarriage  of  guilty  party,  588. 
bigamy  as  a  cause  for  divorce,  589. 
effect  of  void  marriage  at  the  common  law,  590. 
void  marriages  under  the  civil  law,  591. 
one  not  a  party  to  prior  marriage  can  marry  again  without  divorce; 

585. 
party  guilty  of  bigamy  cannot  obtain  a  divorce,  579. 

but  can  render  second  marriage  valid  by  remarriage  after  dis- 
solution of  prior  marriage,  579. 

PRIVATE  CONVERSATIONS  — 

of  husband  and  wife,  privileged,  783. 

PRIVILEGED  COMMUNICATIONS  — 

husband  and  wife,  783. 

physicians,  etc.,  161,  783. 
PROBATE  COURTS  — 

jurisdiction,  of  divorce,  19. 

in  territories,  19. 
PROCEDURE- 

when  code  of  civil  procedure  applies,  6. 
ecclesiastical  practice  followed,  3. 

parties,  736-739a. 

petition,  730-740. 


INDEX.  1171 

Beferences  are  to  sections. 

PROCEDURE  (continued)  — 
motions,  739. 
amendments,  741. 
demurrer,  742. 
answer,  743. 
trial,  800,  803. 

evidence,  in  general,  774,  785. 
on  application  for  temporary  alimony,  746. 

for  permanent  alimony,  747. 

to  vacate  decree,  1057. 
suit  for  alimony  without  divorce,  1003. 

PROCEEDINGS  IN  REM  (see  Ex  Parte  Divorce)  — 
defined,  5. 

whether  divorce  suit  is,  5,  27. 
doctrine  in  New  York,  5,  29,  80. 

North  Carolina,  5. 

South  Carolina,  3. 
alimony  without  personal  service,  935. 
attachment  to  secure  alimony,  100,  736,  935. 

set  aside  fraudulent  conveyance,  935. 
alimony  after  ex  parte  divorce,  936. 
dower  after  ex  parte  divorce,  1033. 
custody  of  children,  effect  of  decree,  980. 

PROCESS  AND  CONSTRUCTIVE  SERVICE  — 

process  or  summons,  815. 

waiver  of  process,  816. 

constructive  service,  817. 

defective  service,  when  void,  818. 

the  aflSdavit  of  non-residence,  819. 

sheriff's  diligence  before  publication,  830. 

the  notice,  831. 

mailing  copy  of  summons  and  petition  to  defendant,  823. 

proof  of  publication,  833. 

personal  service  out  of  the  state,  834. 

decree  based  on  constructive  service,  how  vacated,  835. 
PROFANE  AND  ABUSIVE  LANGUAGE  — 

as  cruelty,  384 
PROHIBITED  DEGREES  (see  Consanguinity  and  Affinity). 

PROHIBITION  — 

of  legislative  divorce,  401,  403. 
PROHIBITION  OF  MARRIAGE  — 

after  divorce,  588. 

no  extra-territorial  effect,  588. 


1172  INDEX. 

References  are  to  sections. 

PROHIBITION  OF  MARRIAGE  (continued)  — 
statute  not  contrary  to  public  policy,  588. 
act  not  retrospective,  12,  588. 

PROOF  — 

must  correspond  with  allegations,  338. 
,   general  conduct  of  parties  admissible,  338. 
in  desertion,  107. 
in  adultery,  168. 
in  cruelty,  277,  336,  333,  33a 
prior  and  subsequent  acts,  313,  335. 

PROPERTY  (see  Real  Estate)  — 

division  of  on  absolute  divorce,  960-966. 

PROSPECTIVE  INTERPRETATION  — 
preferred,  13. 

PROSTITUTE  — 
defined,  200. 

associating  with,  as  evidence  of  adultery,  193. 
testimony  of,  should  be  corroborated,  200. 

may  be  disregarded,  200. 
representing  herself  chaste,  when  fraud,  604. 
keeping,  as  cruelty,  382,  283. 

PROVOCATION  — 

for  cruelty,  336-331. 

conduct  disproportionate  to,  337. 
PUBERTY  — 

age  of,  731. 

PUBLIC  — 

as  a  party,  7. 

divorce  suit  triangular,  7. 

represented  by  court,  7. 

attorney,  7. 
PUBLIC  DEFAMATION  — 

as  ^  cause  for  divorce,  392. 

must  be  malicious  and  public,  393. 

accusation  of  adultery,  277,  378,  309,  392. 

denying  paternity  of  child  as  cruelty,  277. 

PUBLIC  LANDS  — 

homestead  after  divorce,  1033. 
PUBLIC  POLICY  — 

encourages  condonation  and  reconciliation,  454,  456. 
marriage,  881. 


INDEX.  l|'iJ3 

References  are  to  sections. 

PUBLIC  POLICY  (continued)  — 

does  not  require  vacation  of  decree  for  fraud  after  delay  and  birth 
of  children,  587. 

divorce  for  insanity  not  against,  651. 
PUBLICATION  OF  SUMMONS  (see  Constructive  Service,  817)  — 

form  of  notice,  831. 

proof  of,  82a 

diligence  before  publication,  830. 
PULLING  HAIR  — 

is  cruelty,  366. 

PUNISHMENT— 

divorce  is  not  for,  315. 

husband  no  right  to  punish  wife,  393. 

to  punish  children,  300. 

Q. 

QUARREL  — 

violence  in,  is  not  cruelty,  331. 

QUASI  IN  REM  — 

divorce  suit  said  to  be,  5,  27. 

QUEEN'S  PROCTOR  — 

intervention  of  in  divorce,  7. 

R. 

RACES  — 

intermarriage  of,  see  Miscegenation,  716-730. 

RANK  — 

social  condition,  eflEect  of  cruelty,  316. 

RAPE  — 

not  adultery  on  part  of  woman,  135. 
attempt  to  commit,  as  cruelty,  383. 

RATIFICATION  (see  Voidable  Marriage).  ' 

REAL  ESTATE  — 

division  of,  on  divorce,  960-966. 

dower  and  curtesy,  after  divorce  a  mensa,  1033. 

dower  after  divorce,  1034,  1033. 

homestead  may  be  sold  or  allotted  to  wife,  938,  1031. 

on  public  land,  1033. 
divesting  title,  on  divorce,  962. 
tenants  by  entireties,  effect  of  divorce,  1035. 


1174  INDEX. 

Keferences  are  to  sections. 

REAL  ESTATE  (continued)  — 

joint  tenants,  effect  of  divorce,  1035. 

community  property,  on  divorce,  965. 

lien  of  decree  for  alimony,  988-941. 

lis  pendens,  divorce  suit  as,  938,  941. 

fraudulent  conveyance  of,  to  defeat  alimony,  938. 

mortgage  on  land  in  another  state  to  secure  alimony,  941. 

conveyance  by  both  to  child  not  subject  to  lien  for  alimony,  933. 

conveyance  by  husband  enjoined,  938. 

general  lien  of  decree  for  alimony,  938,  941, 

policy  of  law  encouraging  alienation,  931. 

enforcing  agreement  to  convey,  964. 

REASONABLE  CAUSE  — 

for  separation,  defined,  95,  138. 
vehat  is,  93-97. 
a  cause  for  divorce  is,  95. 
what  is  not,  97. 

refusal  to  live  with  wife's  relatives,  97. 

to  compel  servants  to  obey  wife,  97, 
to  pay  board  to  wife,  97. 
poverty  of  husband,  97. 
i  charge  of  crime,  97. 

inability  to  satisfy  sexual  desires,  97, 
fear  of  having  children,  97. 
refusal  of  sexual  intercourse,  97. 

REASONABLE  DOUBT  — 

doctrine  of,  in  divorce  suit,  143. 

whether  a  crime  must  be  proved  beyond  a,  in  a  civil  action,  143. 

REASONABLE  RESTRAINT  — 

husband's  right  of,  390,  391,  393,  394. 

RECEIVER  — 

alimony  secured  by,  941. 

on  failure  to  pay  alimony,  taxes,  etc.,  941. 

RECONCILIATION  — 

condemnation  must  effect,  450. 
encouraged  by  law,  78. 
refusing,  is  desertion,  78-79. 

when  refusing,  is  consent  to  separation,  91. 
avoids  decree  for  separation,  93. 

alimony  without  divorce,  1003. 
"door  of  repentance  "  must  be  always  open,  91. 
waiting  for,  excuses  delay,  519. 


INDEX.  1175 

References  are  to  sections. 
RECORD  — 

proof  of  marriage  by,  777. 

certified  copy  of  marriage  record,  777. 

divorce,  19,  39. 

desertion,  prior  suit  for  maintenance,  110. 

adultery,  186. 

sodomy,  186. 

cruelty,  339. 

insanity,  127. 

BECRIMINATION  — 
in  general,  435. 
origin  of  the  doctrine,  436. 

he  who  comes  into  equity  must  come  with  clean  hands,  437. 
divorce  is  a  remedy  provided  for  an  innocent  party,  438. 
adultery  is  a  bar  in  all  cases,  439. 
whether  any  icause  for  divorce  is  a  bar,  480. 
American  doctrine,  431. 
statutory  recrimination,  433. 

the  recrimination  must  be  a  cause  for  divorce,  433. 
whether  a  cause  for  a  decree  of  separation  is  sufficient,  434> 
recrimination  is  not  applicable  to  nullity  suits,  435. 
plaintiflE's  cruelty  bars  divorce  for  adultery,  436. 
plaintiff's  cruelty  bars  divorce  for  desertion,  437. 
plaintiff's  desertion  bars  divorce  for  cruelty,  438. 
adultery  bars  adultery,  439. 

whether  plaintiff's  cruelty  bars  divorce  for  cruelty,  440. 
recrimination  must  be  pleaded,  441. 

effect  where  recrimination  is  disclosed  by  plaintiff's  testimony,  443. 
evidence,  443. 
form  of  allegation,  753. 
not  a  defense  in  nullity  proceedings,  435,  .370,  687. 

iREFEREE  — 

in  divorce  suits,  806. 

JBEFORMATION  — 

after  adultery,  custody  of  children,  976, 
encouraged  by  law,  380,  604. 
"door  of  repentance"  must  always  be  open,  91. 
misrepresentation  of  chastity  not  fraud,  604. 
ante-nuptial  unchastity  not  a  cause  for  divorce,  380. 
promise  of,  in  cruelty  as  a  defense,  550,  304,  318. 
effect  of,  in  habitual  drunkenness,  356. 
.of  marriage  settlement,  965,  1037. 


1176  INDEX. 

References  are  to  sections. 
REFUSAL  — 

to  cohabit,  is  desertion,  63,  63. 
of  offer  to  renew  cohabitation,  is  desertion,  73-79. 
of  sexual  intercourse,  may  be  cruelty,  304. 

desertion,  71. 

does  not  justify  desertion,  97. 

not  proof  of  impotency,  683. 
of  servants  to  obey  wife,  does  not  justify  desertion,  97. 
of  personal  examination,  in  impotence,  683. 
to  be  cured  of  impotence,  683. 
to  follow  to  new  domicile,  is  desertion,  68. 
to  emigrate,  when  desertion,  68. 

to  live  with  wife's  father,  does  not  justify  desertion,  97. 
to  support  wife,  see  Failure  to  Support  ;  Alimony  Without  Di^ 

VORCB. 
a  party  may  refuse  to  condone  an  offense,  75. 
to  speak,  is  cruelty,  388. 

REFUSING  TO  RECEIVE  — 

is  desertion  if  there  is  no  cause  for  divorce,  73-79. 
party  having  cause  for  divorce  may,  91. 

REHEARING  (see  New  Trial). 

RELATE  BACK  — 

decree  of  divorce  does  not,  579. 
RELATION  OF  HUSBAND  AND  WIFE  — 
destroyed  by  absolute  divorce,  1034-1038. 

death,  1034-1033. 
not  by  decree  nisi,  1031. 

from  bed  and  board,  1083. 

RELATION  OF  PARENT  AND  CHILD  — 

not  destroyed  by  divorce,  981, 
RELATIONSHIP  — 

as  impediment  to  marriage,  see  Affinity  and  Consanguinity, 
RELATIVES  — 

as  witnesses,  785. 

interfereOce  of,  in  divorce  suit,  736. 

right  of  parent  to  intervene,  760. 

adultery  not  presumed  from  familiarities  with,  160. 

husband  may  refuse  to  receive  wife's  relatives,  303. 
RELEVANCY  — 

of  evidence,  see  Evidence. 

RELIEF—  ' 

general  prayer  for,  737. 


INDEX.  1177 

References  are  to  sections. 
RELIGION  — 

joining  Sliakers  as  a  cause  for  divorce,  391. 
evil  appreliended  from  religious  eccentricities,  285,  314. 
cruelty  arising  from,  will  probably  continue,  314. 
Christian  science,  as  cruelty,  285. 
Sanctificationist,  belief  of  and  conduct  as  cruelty,  285. 
cruelty  inflicted  in  prayers,  314. 

husband  no  right  to  prevent  wife  from  attending  church,  394. 
uniting  with  sect  believing  cohabitation  unlawful,  391. 
if  both  unite,  one  may  withdraw  and  obtain  divorce  if  the  other  re- 
fuses, 391. 

REM  (see  In  Personam,  and  Peoceedings  in  Rem)  — 
whether  divorce  suit  is  in  rem,  5. 

REMARRIAGE  AFTER  DIVORCE  — 
in  general,  688. 

when  permission  necessary  for  guilty  party,  588. 
prohibition  as  to  guilty  party,  558,  588. 
no  right  of,  on  divorce  from  bed  and  board,  583. 
on  void  decree,  586. 
on  decree  nisi,  583. 

when  prior  marriage  is  undissolved,  575-591. 
on  belief  that  marriage  is  dissolved,  584,  585. 
in  New  York,  after  ex  parte  divorce  in  another  state,  586, 
effect  on  alimony  in  instalments,  933. 
in  gross,  933. 
custody  of  children,  935. 
fraudulent  decree  of  divorce,  587. 

REMARRIAGE  AFTER  VOID  MARRIAGE  — 
in  general,  575-591. 
decree  of  annulment  not  necessary,  568. 

REMEDY  — 

for  desertion  and  failure  to  support,  1000. 

arrest  for  desertion,  100. 

civil  liability,  98. 

alimony  without  divorce,  1000. 

restitution  of  conjugal  rights,  101. 

RENEWAL  OF  COHABITATION  — 
condonation  presumed  from,  467. 
refusal  to,  desertion,  63. 
destroys  continuity  of  desertion,  81. 
cause  for  dismissing  bill,  467. 
avoids  decree  for  maintenance,  92. 
alimony,  1003. 


1178  INDEX. 

References  are  to  sections. 
RENT  — 

of  home  in  estimating  alimony,  912. 
REPEAL  OF  STATUTE  — 

effect  on  existing  cause  for  divorce,  3. 
REPEATED  CRUELTY  — 

doctrine  of,  in  Illinois,  361. 

REPORTS  — 

of  English  and  eccleciastical  courts,  9. 

REPUTATION  — 

of  defendant,  whether  admissible,  10,  165,  172. 

of  paramour,  is  admissible,  174 

of  house,  147,  148,  149. 
REQUEST  TO  RETURN  — 

refusing,  is  desertion,  78. 

RES  AD  JUDICATA  — 

doctrine  of,  applies  to  divorce  suits,  555. 

extends  to  all  the  parties  might  have  litigalted,  934. 

as  a  defense,  555. 

voidable  or  en-oneous  decree  is  a  bar  until  vacated,  555. 

decree  a  mensa  not  a  bar  to  suit  for  absolute  divorce,  555. 

decree  denying  absolute  divorce  is  a  bar  to  suit  for  separation  for 
same  cause,  555. 

estoppel  extends  to  all  property  rights  which  might  have  been  liti- 
gated, 555,  934. 
but  not  in  ex  parte  proceedings,  934,  935,  980. 
but  not  to  separate  offenses  not  alleged,  555. 

dismissal  of  premature  suit  not  a  bar,  555. 

whether  divorce  bars  alimony,  935,  986. 
RES  GEST^  — 

when  declarations  admissible  as,  109,  341. 
RESIDENCE  (see  Doshcilb,  40-48)  — 

nature  of,  to  give  jurisdiction,  42. 

actual  distinguished  from  legal,  42. 

allegation  of,  731. 

proof  of,  43. 

change  of,  after  commencing  suit,  30. 

does  not  break  continuity  of  desertion,  80. 
RESIDENT  (see  Domicile). 
RESPONDENT  (see  Parties). 
RESTITUTION  OF  CONJUGAL  RIGHTS  — 

as  a  remedy  for  desertion,  101. 

our  courts  have  no  jurisdiction  to  enforce,  101. 


INDEX,  1179 

References  are  to  sections. 

RESTITUTION  OF  CONJUGAL  RIGHTS  (continued)  — 

enforced  by  imprisonment  but  not  by  attachment,  101. 

is  in  effect  a  suit  for  alimony,  101. 

and  a  foundation  for  divorce  for  desertion,  101. 

barred  by  articles  of  separation,  101. 

may  proceed  on  substituted  service,  101. 

written  demand  for,  is  a  necessary  prerequisite,  101. 

decree  does  not  confer  right  to  imprison  wife,  101. 
RESTORATION  OF  PROPERTY  — 

on  annulment  of  marriage,  1033. 

to  wife  on  divorce,  960. 

effected  by  estimating  value  in  allowance,  963. 

personal  property  restored,  965. 

form  of  decree  Bestoring  wife's  property,  768. 
RESTRAINT  — 

doctrine  of  reasonable  restraint  of  husband,  390,  391,  393,  294 

not  a  right  to  imprison,  101. 

RESTRAINT  OF  MARRIAGE  — 

statute  prohibiting  marriage  after  divorce,  588. 

statute  prohibiting  marriage  of  black  and  white,  719. 

decree  terminating  alimony  on  wife's  marriage,  933. 
RETALIATION- 

not  always  a  bar  in  cruelty,  839. 
RETROSPECTIVE  INTERPRETATION  — 

in  full,  5. 
RETROSPECTIVE  LEGISLATION  — 

in  full,  4 

prohibition  of  marriage  of  guilty  party  not,  588. 

REVISION  — 

of  decree  for  alimony,  933a,  934 

REVIEW  (see  Appeal). 

REVIVAL  — 

of  suit  after  death,  729a. 

of  condoned  offenses,  456,  458,  459. 

of  condoned  cruelty,  457. 

REVOCABLE  — 

consent  to  separation  is,  73-79. 
RHODE  ISLAND  — 

statutes  relating  to  causes  for  divorce,  page  10461 
domicile,  page  1061. 
notice,  page  1075. 
alimony  without  divorce,  1000. 


1180  INDEX. 

References  are  to  sections. 

RIGHTS  OF  HUSBAND  AND  WIFE  (see  Husband  and  Whb). 

RUDE  AND  DICTATORIAL  — 
conduct  as  cruelty,  286, 

RUDENESS  — 

is  an  indignity,  390. 

RUSSIA  — 

Jewish  divorce  in,  valid,  33. 

s. 

S^VITIA  — 

defined,  254 
SALARY  — 

when  exempt  on  execution  for  alimony,  938. 

SANCTIFIC  ATIONIST  — 
cruelty  by,  285. 

SCANDAL  — 

not  evidence  of  adultery,  138-141. 
SCIRE  FACIAS  — 

on  decree  for  alimony,  941. 

SCOTLAND  — 

absolute  divorce  in,  for  desertion,  55. 

SECOND  MARRIAGE  (see  Prior  Marriage  Undissolved,  575-591). 

SECURITY— 

for  decree  of  alimony,  941. 

lien  on  real  estate,  938,  941. 

how  enforced,  writ  ne  exeat,  940. 
SEDUCTION  — 

arrest  for,  as  duress,  619,  620. 
SELF- ABUSE  — 

impotency  caused  by,  680. 

SELLING  PROPERTY  AND  REFUSING  TO  PROVIDE  - 
as  a  cause  for  divorce,  374. 

SENTENCE  (see  Decree). 

SEPARATE  BEDS  — 

no  condonation  presumed,  467. 
SEPARATE  ESTATE  OF  WIFE  — 

in  estimating  alimony,  913. 
SEPARATE  MAINTENANCE  (see  Alimony  Without  Divorce). 


INDEX.  1181 

Eeferences  are  to  sections. 

SEPARATION  (see  Articles    of    Separation;  Reasonable   Cause 

FOR)  —  > 

voluntary,  as  a  caase  for  divorce,  381. 
provoked  by  plaintiff,  not  desertion,  88. 
by  agreement,  not  desertion,  67. 

is  revocable,  73-79. 

becomes  desertion  on  refusal  to  cohabit,  63. 
when  justifiable,  in  desertion,  92-97. 
•when  necessary  to  allege,  in  cruelty,  337. 

SEPARATION,  DECREE  OF  (see  Decree)  — 
distinguished  from  dissolution,  903. 
nature  and  effect  of,  1033. 

SEPARATING  AND  LIVING  IN  ADULTERY  — 
as  a  cause  for  divorce,  131. 
both  desertion  and  adultery  must  be  shown,  13L 

SEQUESTRATION— 

enforcing  alimony  by,  941. 
SERVANTS  — 

as  witnesses,  785. 

failure  to  disclose  facts  at  the  time,  531,  785. 

ill-treatment  of,  aa  cruelty,  301. 

attempt  to  debauch,  when  cruelty,  381. 
SERVICES  — 

liability  to  woman  for,  after  annulment,  1033. 

father's  right  to,  of  children,  981,  983. 
SETTLEMENT  (see  Marriage  Settlement). 

SET-OFF  — 

husband  cannot  have,  against  alimony,  987. 
SEXUAL  INTERCOURSE  — 

presumed  from  cohabitation,  453,  467. 
condonation  presumed  from  sexual  intercourse,  453. 
incapacity  for,  is  impotence,  676. 
refusal  of,  as  desertion,  71. 

as  reasonable  cause  for  separation,  97. 
cruelty,  .304. 

considered  as  a' wrong,  decreases  alimony,  71,  note, 
excessive  intercourse,  as  cruelty,  304. 

SHAKERS  — 

uniting  with,  as  a  cause  for  divorce,  391. 

SICK  — 

cruelty  while,  318. 


1182  IKDEX. 

References  are  to  sections. 
SICKNESS  — 

excuses  desertion,  73. 

adultery  not  presuuied  during,  72. 

inexcusable  neglect  during,  273. 
SILENCE  — 

as  cruelty,  388. 
SISTER— 

marriage  with  deceased  wife's,  714. 

SISTER  STATES,  JUDGMENTS  OF  (see  Fobeiqn  Deckees)i 

SIXTEEN  YEARS  — 

as  age  of  custody,  975. 
SLANDER  — 

as  cruelty,  see  Accusation  op  Adultery  or  Crime. 

calling  wife  whore  or  bitch,  a  cruelty,  379. 
SLAVE  — 

sexual  intercourse  with,  is  adultery,  125. 
SODOMY  — 

as  a  cause  for  divorce,  393. 

SOLICITOR  (see  Attorney). 

SOLICITATIONS  — 

of  other  women,  revives  adultery,  459. 

SOUTH  CAROLINA  — 

history  of  law  of,  11. 

ex  parte  divorce  void  in,  1033. 

marriage  a  contract  in,  3. 

alimony  without  divorce,  1000. 

dower  not  barred  by  decree  in  rem,  1033. 
SOUTH  DAKOTA  — 

code  of,  page  1077. 

residence  in,  see  page  1061. 

injury  to  health  not  a  test  of  cruelty,  265. 
SPEAK  — 

refusal  to,  as  cruelty,  388. 

SPECIAL  FINDINGS  — 

of  jury,  801. 

request  for,  in  jury  trials,  801. 
SPECIAL  LEGISLATION  — 

when  legislative  divorce  is  void  as,  408. 
SPENDTHRIFT  — 

may  sue  in  his  own  name,  728. 


INDEX.  1183 

References  are  to  sections. 
SPIRITUAL  ADULTERY,  436. 

SPIRITUALISM  — 

not  evidence  of  mental  incapacity,  660. 

SPITTING  IN  PACE  — 
as  cruelty,  266. 

STAINS  ON  LINEN  — 

as  evidence  of  venereal  disease,  161. 
STATE  — 

laws  of,  for  its  own  citizens,  41,  45. 
interest  of,  in  suit  for  divorce,  8. 

powerless  to  enforce  cohabitation,  8. 
protected  by  authorized  attorneys,  7. 
represented  by  the  court,  7. 
no  jurisdiction  because  offense  committed  in,  33. 
interstate  comity,  28-30,  33. 

offense  made  a  cause  for  divorce  though  not  so  where 
committed,  33. 
other  state,  maiTiage  in,  29. 

decrees  of,  annulled  for  fraud,  560,  1051. 
decrees  of,  extra-territorial  effect  of,  see  Foeeign  Decrees, 
STATION  AND  RANK  — 
in  cruelty,  316. 

alimony  to  wife  according  to,  908. 
STATUS  — 
defined,  2. 
of  marriage,  2. 

as  to  marriage  and  divorce,  valid  everywhere,  31,  33. 
distinction  between  decree  and  status,  32. 

STATUTES  — 

relating  to  divorce,  11. 

digest  of  divorce  statutes,  see  pages  1035-1087. 

history  of,  11, 

uniformity  of,  desirable,  11. 

liberal  construction  of,  13,  963. 

strict  construction  of  statute  requiring  residence,  45. 

prospective  interpretation,  12. 

new  remedy  applicable  to  past  offenses,  12. 

interpreted  with  reference  to  common  law,  10,  13. 

additional  remedies  do  not  prohibit  inherent  powers,  939. 

repeal  of,  effect  on  existing  cause  for  divorce,  12. 

do  not  define,  causes  of  action  are  jurisdictional,  13. 

referring  to  discretion  of  court,  see  Discretion  of  Court. 


1184:  INDEX. 

Eeferenoes  are  to  sections. 

STATUTES  (continued) - 

desertion,  statutes  relating  to,  50-61. 
cruelty,  statutes  relating  to,  360-265. 
jurisdiction  of  court  of  equity  in  absence  of  statute,  19. 
to  annul  marriage  for  fraud,  601. 

impotence,  675. 
to  order  inspection  of  person,  697. 
to  grant  temporary  alimony,  851. 

suit  money  and  attorneys'  fees,  875. 
permanent  alimony,  900. 
alimony  without  divorce,  1000. 
to  punish  for  contempt,  880,  939. 
to  vacate  decree  obtained  by  fraud,  1050. 
to  issue  vprit  ne  exeat,  940. 
Code  of  Civil  Procedure  when  Applicable  to  Divorce  Suit,  3, 
statute  of  limitations  does  not  apply,  517. 
provisions  relating  to  continuance,  trial  by  jury,  801. 
new  trial,  808. 
appeal,  809. 
attachment,  935. 
change  of  venue,  804. 
reference,  806. 
costs,  807. 
contempt,  939. 
default,  775. 
change  of  venue,  804. 
counter-claim,  12,  745. 
bill  of  particulars,  739. 
special  findings,  801. 
venue,  change  of,  804 
STATUTES  OF  LIMITATION  — 

general,  do  not  apply  to  divorce,  517. 

apply  tovacation  of  decree  for  fraud,  587. 

sterility- 
Is  not  impotence,  675. 

STRATAGEM  — 

removing  by,  is  desertion,  64. 

STRIKING  — 
is  cruelty,  266. 

STRUMPET  (see  Pkostitute). 

SUICIDE  — 

creates  no  presumption  of  insanity,  665, 


INDEX.  1185 

References  are  to  sections. 
SUI  GENERIS  — 

divorce  suit  is,  4,  6. 

SUIT  — 

effect  of  premature,  734 

SUIT  MONEY  (see  Alimony). 

SUIT  PENDING  (see  Lis  Pendens) - 

legislative  divorce  while,  404. 

as  a  defense,  554. 
SUMMONS  — 

in  general,  815. 

indorsement,  815. 

waiver  of  process,  816. 

personal  service  in  another  state,  834. 

foreign  country,  824. 

personal  service  not  necessary,  28. 

SUPPLEMENTAL  PLEADINGS,  740. 

alleging  act  of  cruelty  subsequent  to  suit,  335. 
court  may  refuse  to  permit  filing,  740. 
defense  may  be  set  up  by,  740. 
SUPPLICAVIT  — 

alimony  on  supplicavit,  1000. 
SUPPORT  OF  CHILDREN  — 
after  divorce,  981. 
where  decree  is  silent  as  to,  983. 
where  custody  is  awarded  to  wife,  983. 
considered  in  awarding  alimony,  914 
SUPPORT  OF  WIFE  — 

neglect  to,  as  cause  for  divorce,  370-378. 
arrest  for  failure  to,  100. 
husband  liable. for,  at  common  law,  1000. 
alimony  without  divorce,  1000-1003. 
where  divorce  is  denied,  905. 
after  divorce,  936. 
temporary,  850-863. 
permanent,  900-943. 
continuing  to  support  wife  does  not  destroy  continuity  of  deser- 
tion, 83. 

SURVIVOR  — 

divorced  woman  not  a  widow,  1034. 
man  not  a  widower,  1024. 
right  to  dower,  1026. 
curtesy,  1030. 
75 


I 

1186  INDEX. 

Eeterences  are  to  sections. 
SWEDEN  — 

divorce  in,  when  valid,  38. 

SYPHILIS  (see  Venereal  Disease). 


TABLE  OF  DEGREES  — 

of  prohibited  marriages,  711. 

TAKEN  IN  ADULTERY  — 

divorce  granted  to  husband  when  wife  is,  129. 

TELEGRAMS  — 

as  admissions,  783. 

TEMPER - 

violent  and  ungovernable,  a  cause  for  divorce,  387. 

not  insanity,  330. 
uncontrollable,  creates  necessary  apprehension,  271. 

TEMPORARY  ABODE  — 
is  not  domicile,  44. 

TEMPORARY  ALIMONY  (see,  also.  Alimony;  Permanent  Alimony; 
Alimony  Without  Divorce)  — 
in  general,  850. 

the  power  to  grant  temporary  alimony,  851. 
annulment  of  marriage,  853. 

evidence  on  application  for  alimony  —  proof  of  marriage,  853, 
same  —  probable  cause  for  divorce  or  a  valid  defense,  854. 
same  —  poverty  of  the  wife,  855. 
same  —  the  husband's  income,  856. 
defenses  to  application,  856a. 
same  —  misconduct  of  the  wife,  857. 
same  —  offer  to  support  wife,  858. 
amount  of  temporally  alimony,  859. 

when  temporary  alimony  commences  and  terminates,  860. 
how  the  order  is  enforced,  861. 
appeal,  863. 
temporary  alimony  on  appeal,  868. 

TEMPORARY  INSANITY  — 

marriage  during  lucid  interval,  valid,  661. 
drunkenness  as,  664. 
delirium  tremens  as,  333. 

TENANCY  BY  ENTIRETIES  — 
effect  of  absolute  divorce,  1035. 


INDEX.  1187 

References  are  to  sections. 


TENNESSEE  — 

statutes,  relating  to  divorce,  page  lOtS. 
domicile,  page  1061. 
notice,  page  1074. 
alimony  divorce  denied,  906,  1001. 
alimony  without  divorce,  1001. 
dower  barred  by  decree  in  rem,  1033. 
TERM  — 

opening  decree  during,  see  DEFAm.T,  775. 
TERRITORIES  — 

legislative  divorce  in,  409,  410. 
jurisdiction  of  probate  courts  in,  19. 
statutes  in  Indian  Territory,  page  1033. 
Oklahoma,  page  1043. 
TEST  FOR  INSANITY,  655. 
TEXAS  — 

statutes  relating  to  divorce,  page  1047. 
domicile,  page  1061. 
notice,  page  1076. 
no  alimony  without  divorce,  1000. 

THIRD  PERSONS  — 

as  parties,  see  Parties,  727. 

fraudulent  grantee,  727. 

mortgagee  of  chattels,  727. 

paramour,  727. 

co-respondent,  737. 

creditor  cannot  intervene,  727. 

interest  of,  is  interest  of  the  state,  8. 

right  of  third  person  to  be  made  a  party,  727. 

to  avoid  decree  obtained  by  fraud,  557,  727. 

to  have  subsequent  marriage  annulled,  557. 

children  cannot  have  decree  vacated,  727. 

second  wife  a  necessary  party,  737. 

third  wife  a  necessary  party,  737. 
custody  of  children  may  be  awarded  to,  976. 
divorce  suit  by,  736. 
nullity  suit  by,  736. 

conspiracy  by,  rendei-s  marriage  voidable,  611. 
duress  by,  renders  marriage  voidable,  633. 

THREATS  (see  Duress)  — 

of  violence,  as  cruelty,  368,  670,  671.' 

of  poisoning,  371,  303. 

of  shooting,  371. 

causing  desertion  bj'  threats  of  leaving,  67,  88. 


1188  INDEX. 

References  are  to  sections. 
THROWING  WATER  — 

as  cruelty,  366. 
TIME  — 

lapse  of,  see  Delay. 

TIME  AND  PLACE  — 

necessity  of  alleging  in  suit  for  adultery,  180-184. 

cruelty,  335. 
TITLE  (see  Division  op  Property  ;  Real  Estate  ;  Doweh  ;  Curtesy  ; 
Community  Peopekty). 

TORT  — 

whether  a  cause  for  divorce  is  a,  3,  4. 

TRIAL  (see  New  Trial)- 

in  open  court,  800. 

general  procedure,  802. 

right  to  open  and  close,  802. 
TRIAL  BY  JURY  — 

in  general,  801. 

when  a  constitutional  right,  801. 

instructions  to  jury,  801. 
TRIANGULAR  — 

divorce  suit  is,  7. 
TRIENNIAL  COHABITATION  — 

impotence  presumed  from,  without  consummation,  696. 
TRUST  — 

property  cannot  be  awarded  in  trust  for  children,  963. 
TRUST  FUND  — 

applied  to  payment  of  alimony,  938. 

TURNING  OUT  OF  DOORS  — 

as  cruelty,'  299. 

as  desertion,  64. 

by  wife,  is  gross  neglect  of  duty,  383. 
TYRANNY  — 

of  husband,  as  cruelty,  S98. 

u. 

ULTERIOR  PURPOSE  (see  Insincerity). 

UNCHASTITY  (see  Ante-nuptial  Unchastity)  — 
as  fraud,  see  Fraud,  604. 

UNCONSTITUTIONAL  (see  Constitutional  Law). 


INDEX.  1189 

References  are  to  eectiona 
UNHAPPINESS  — 

causing,  is  not  cruelty,  386. 

UNINTENTIONAL  ACT  — 
not  cruelty,  319. 

UNITED  STATES  (see  States)  — 
history  of  divorce  law  in,  11. 
ecclesiastical  law  as  a  part  of  common  law  of,  10. 

UNITED  STATES  COURTS  — 
no  jurisdiction  of  divorce,  19. 
may  enforce  decree  for  alimony,  19,  943. 
doctrine  of  supreme  court  as  to  legislative  divorce,  407. 
collateral  attack  of  divorce  in,  1054 
cancellation  of  marriage  contract,  601. 
homestead  on  public  lands,  after  divorce,  1033. 

UNITING  WITH  SHAKERS  — 
as  a  cause  for  divorce,  391. 

UNKNOWN  PERSON  — 

name  not  required,  181,  185. 

UNREASONABLE  DELAY  (see  Delay,  515-534)  — 
what  is,  515. 

UNSAFE  — 

what  conduct  renders  cohabitation  unsafe,  389. 
UNSOUND  MIND  (see  Mental  Incapacity). 

UNWRITTEN  LAW  — 

of  United  States,  10. 
USELESS  ACT— 

the  law  does  not  require,  78, 

UTAH  — 

statutes  relating  to  causes  for  divorce,  page  1048. 

domicile,  page  1061. 

notice,  page  1076. 
divorces  in,  void  for  lack  of  jurisdiction,  31. 
desire  to  become  a  resident,  not  actual  residence,  31. 
jurisdiction  of  probate  courts  in,  19. 

UTTER  — 

effect  of,  qualifying  desertion,  59. 

UTTERLY  DESERT  — 
defined,  59. 

not  an  abnegation  of  all  duties,  54,  51 
refusal  of  sexual  intercourse  is  not,  71. 


1190  INDEX. 

Eeferences  are  to  sections. 


VACATING  DECREE  (see  Annulling  Dkcree  for  Fraud,  1050-1057)— 
default  on  constructive  service,  835. 
setting  aside  default,  775. 
for  fraud,  1050-1057. 
afier  term,  1050. 

deatli,  1054. 

marriage,  1053. 

VARIANCE— 

as  to  time  and  place  in  adultery  suit,  184. 

not  fatal  if  within  limitations,  184. 

general  conduct  of  parties  admissible  in  divorce  suit,  see  Evidence. 

as  to  person,  is  fatal,  185. 

where  name  alleged,  proof  of  unknown  person  insufficient,  185. 

VENEREAL  DISEASE  — 

communicating,  as  cruelty,  373. 

ignorance  of,  excuses  cruelty,  273. 

not  presumed  from  husband's  adultery,  373. 

as  evidence  of  adultery,  161. 

keeping  usual  remedies  as  evidence  of,  161. 

condonation  with  knowledge  of,  372,  453,  454. 

cannot  be  condoned  if  a  physical  incapacity,  454. 
VENUE  — 

as  to  counties,  30. 

suit  in  wrong  county,  fraud,  1053. 

change  of,  804. 
VERDICT  — 

in  general,  801. 

when  advisory,  801. 

decree  contrary  to,  801. 

VERIFICATION  (see  Pleading,  738)  — 
not  required  in  cross-bills.  744. 

VERMONT  — 

statutes  relating  to  divorce,  page  1048. 
domicile,  page  1063. 
notice,  page  1076. 
desertion  as  a  crime  in,  100. 
alimony  without  divorce,  1001. 
VICE  AND  IMMORALITY  — 

not  causes  for  divorce  as  cruelty,  283. 


INDEX.  1191 

References  are  to  sections. 
VILE  LANGUAGE  - 

as  cruelty,  384 
VIOLENCE  — 

as  a  form  of  cruelty,  266-373. 

marks  of,  as  evidence  of  cruelty,  343. 

doctrine  that  court  will  not  interfere  until  inflicted,  361. 

not  a  test  of  cruelty  at  common  law,  263,  269. 

one  act  sufficient,  268. 
VIOLENT  AND  UNGOVERNABLE  TEMPER  — 

as  a  cause  for  divorce,  387. 
VIRGINIA  — 

statutes  relating  to  divorce,  page  1048. 
domicile,  JDage  1063. 
notice,  page  1070. 

ante-nuptial  incontinence  a  cause  for  divorce  in,  380. 

alimony  without  divorce,  1000. 
VIRGINITY  — 

as  proof  of  impotence,  694 

VISITS  — 

from  relatives,  husband  may  prohibit,  303. 

VOID  AND  VOIDABLE  — 

definition  and  use  of  terms,  567. 

VOID  DIVORCE  — 

for  want  of  domicile  in  state,  19. 
adultery  by  marriage  aftei',  134. 
not  a  bar  to  suit  for  divorce,  555. 
not  void  for  want  of  ratification  of  petition,  738. 
acquiescence  in,  estoppel,  556. 
marriage  after,  is  void,  586. 
ex  parte  divorce,  void  in  some  states,  586. 
vacated  although  inno'cent  party  relied  upon,  586. 
children  born,  586. 
VOID  MARRIAGE  (see,  also.  Prior  Marriage  Undissolved)  — 
in  general,  565,  570. 

not  void  for  failure  to  obtain  consent  of  parents,  733. 

license,  733. 
to  comply  with  statutory  regulations,  733. 
intermari-iage  of  relatives,  710. 
declared  void  at  any  time,  584 
nullity  decree  not  necessary,  if  void,  585. 
subsequent  divorce  does  not  invalidate,  579. 
a  defense  to  divorce  suit,  551. 
whether  dower  allowed  on  void  marriage,  578. 


1192  INDEX. 

Eeferences  are  to  sections. 

VOID  MARRIAGE  (cod  tinned)  — 

void  on  account  of  prior  marriage,  575-591. 
intermarriage  of  races,  720. 

marriage  of  guilty  party  after  divorce,  588. 
marriage  pending  appeal,  135,  583a. 
on  decree  nisi,  583,  1031. 
on  divorce  a  mensa,  583,  1031, 
on  void  divorce,  586,  1053. 
husband  or  wife  presumed  dead,  584. 

presumed  divorced,  585. 
effect  of  nullity  decree,  1033. 
effect  of  void  marriage,  common  law,  590. 
civil  law,  591. 
VOIDABLE  MARRIAGES  — 
in  general,  569. 

statutes  making  void  marriages  voidable,  568. 
aflBrmance  of,  569. 
impotence,  705. 
insanity,  673, 
want  of  age,  734. 
fraud,  603. 
duress,  633. 
must  be  annulled  in  direct  proceeding,  569. 

during  life-time  of  parties,  569. 
valid  until  disafiirmed,  569. 
children  of,  legitimate,  569. 
wife  entitled  to  dower,  569. 
valid  until  annulled : 

for  consanguinity,  710. 
for  miscegenation,  730. 
for  want  of  age,  734. 
effect  of  statute,  578. 
dower  allowed  on  void  marriage,  578. 
VOLUNTARY  SEPARATION  — 

as  a  cause  for  divorce,  381. 
VULGARITY  — 

as  an  indignity,  390. 

w. 

WAGES  — 

of  husband,  subject  to  attachment  and  garnishment,  988, 
WAIVER  — 

of  objections  to  indefinite  pleading,  183. 

failure  to  appoint  guardian,  738. 


INDEX.  1193 

References  are  to  elections. 
WANT  OF  AFFECTION  — 

uot  cruelty,  287. 

as  evidence  of  adultery,  157. 
WANT  OF  AGE  — 

in  general,  '7il. 

consent  of  parents,  733. 

affirming  marriage,  723. 

how  marriage  disaffirmed,  724 

statutes  affecting  the  common-law  age  of  consent,  735. 
WANT  OF  MENTAL  CAPACITY  (see  Mental  Incapacity). 
WASHINGTON  — 

statutes  relating  to  divorce,  page  1049. 
domicile,  page  1062. 
notice,  page  1076. 

discretionary  divorce  in,  388. 

insanity  a  cause  for  divorce,  650. 

WASTING  ESTATE,  DRUNKENNESS  AND  — 

as  a  cause  for  divorce,  357. 
WATCHING  WIFE  — 

by  husband,  as  connivance,  485. 
WEIGHT  OF  EVIDENCE  (see  New  Trial). 
WEST  VIRGINIA  — 

statutes  relating  to  divorce,  page  1050. 
domicile,  page  1063. 
notice,  page  1076. 

ante-nuptial  incontinence  cause  for  divorce  in,  380. 
WHIPPING  WIFE  — 

is  cruelty,  366. 

husband  has  no  right  to,  293. 
WHITE  PERSON  — 

defined,  718. 
WIDOW  — 

divorced  wife  cannot  become,  1026. 

■woman  in  void  marriage  cannot  become,  at  common  law,  568. 
WIDOWER  — 

divorced  husband  is  not,  see  Curtesy,  1030. 
WIFE  — 

may  acquire  separate  domicile  if  she  has  a  cause  for  divorce,  40. 
or  a  decree  of  separation,  46. 

duty  of,  to  cohabit,  see  Cohabitation. 

excused  by  cause  for  divorce,  63. 

excused  by  keeping  lewd  women  in  house,  76,  95. 


119i  INDEX. 

References  are  to  sections. 
"WIFE  (coDtinued)  — 

duty  of,  follow  husband  to  new  domicile,  68. 
share  fortunes  of  her  husband,  66. 
to  seek  reconciliation, mot  the  same  as  husband's,  78. 
support  children  awarded  to  her  on  divorce,  981,  982,  983l 
cruelty  by  wife,  305-311. 
gross  neglect  of,  a  cause  for  divorce,  383. 

as  cruelty,  310. 
right  to  sue  for  alimony  without  divorce,  1000-1003. 

although  non-resident,  48. 
select  new  residence  when  deserted,  80. 
obtain  divorce  on  cross-petition  although  non-resident,  47, 4S. 
liability  to  pay  alimony,  904. 

remain  in  home  after  husband  guilty  of  cause  for  divorce,  469. 
to  custody  of  young  children,  976. 
to  visit  relatives,  77. 

to  receive  visits  of  children  by  former  marriage,  77. 
to  recover  advances  to  husband  after  desertion,  95. 
restraint  of,  when  reasonable,  394 

same  efforts  for  reconciliation  not  required,  78. 

condonation  not  so  readily  presumed  on  account  of,  469. 

connivance  not  so  readily  presumed,  489. 

delay  of,  excused  by  restraint,  516. 

not  removed  by  statute  relating  to  married  women,  516. 

no  right  to  whip  wife,  393. 

to  treat  as  servant,  396. 
to  overwork,  397. 
to  imprison,  101,  295. 
as  a  witness,  778. 

confidential  communications  to,  782. 

may  testify  in  criminal  proceedings  against  husband,  99,  783. 
as  a  mother,  unfitness  of,  not  cruelty,  311. 
physical  condition  of,  considered  in  cruelty,  818. 
guilty,  may  receive  alimony,  966. 

be  awarded  custody  of  children,  976. 
adultery  of,  as  compared  with  husband's,  129. 
ci-uelty  of,  305,  306. 
income  of,  estimating  alimony,  913. 
poverty  of,  estimating  alimony,  913. 
earnings  in,  estimating  alimony,  913. 

domicile  of,  may  be  separate  after  she  has  cause  for  divorce,  25. 
property  of,  on  divorce  a  mensa,  1032. 
nullity  decree,  1023. 
absolute  divorce,  1024,  1035,  1026. 
services  of,  liability  for  on  annulment  of  marriage,  1033. 


INDEX.  1193 

References  are  to  sections. 
WIFE  (continued)  — 

divorced  wife,  as  a  creditor  of  husband,  938. 

marriage  of,  does  not  terminate  alimony  m  gross,  933. 
death  of,  does  not  terminate  alimony  in  gross,  932. 
misconduct  of,  immaterial,  933a,  934. 
alimony  without  divorce,  936. 
"WIFE'S  SISTER,  DECEASED  — 

marriage  of,  714. 
WILFUL,  — 

meaning  of,  56. 

cruelty  must  be,  319. 

accidental  injury  not  cruelty,  319,  343. 

WILFUL  AND  CONTINUED  DESERTION,  61. 

WILFUL  AND  MALICIOUS  DESERTION,  61. 

WILFUL  DESERTION  — 

means  without  legal  excuse,  68. 
WILFUL  NEGLECT  — 

as  a  cause  for  divorce,  374 
WISCONSIN  — 

statutes  relating  to  divorce,  page  10.50. 
domicile,  page  1063 
notice,  page  1076. 

New  York  doctrine  followed  in,  29. 

desertion  as  a  crime  in,  100. 

injury  to  health  not  always  a  test  of  cruelty  in,  285. 

alimony  after  divorce,  936. 

divorce  from  bed  and  board  approved,  1022. 
WITHOUT  CAUSE,  DESERTION,  61. 

WITNESSES  — 

husband  and  wife  as,  778. 

necessity  of  corroboration,  779. 

what  is  sufficient  corroboration,  780. 

confessions  and  admissions,  781. 

privileged  communications,  husband  and  wife,  782. 

physicians,  etc.,  783. 
opinion  of,  when  admissible,  203. 

admitted  on  the  ground  of  necessity,  303. 

as  to  adultery,  203. 

as  to  drunkenness,  358. 
detectives,  199. 
impeachment  of,  199. 
paramour  as  witness,  194-198, 


1196  INDEX. 

References  are  to  sections. 

WITNESSES  (continued)  — 
prostitutes  as  witnesses,  200. 
pimps  as  witnesses,  201. 
liusband  and  wife  as  witnesses,  778. 
children  as  witnesses,  784 
relatives  and  servants  as  witnesses,. 785. 
husband  or  wife  of  paramour,  198. 
wife  may  display  marks  of  violence  as  evidence  of  cruelty,  343. 

WORDS  AND  PHRASES  — 
Abandonment,  53. 
Ability,  371. 
Adultery,  135. 
Affinity,  710. 
Alimony,  900,  933,  961. 
Annulment  of  Marriage,  568. 
Cohabitation,  53. 
Collusion,  500. 
Condonation,  450. 
Conduct  Endangering  Life,  863. 
Conduct  Rendering  Cohabitation  Unsafe,  263. 
Conduct  Rendering  Condition  Intolerable,  363. 
Conduct  Subversive  of  the  Marriage  Relation,  265. 
Confrontation,  188. 
Connivance,  47?5. 
Corporeal  Imbecility,  691. 
Consanguinity,  710. 
Cruelty,  253,  258,  254. 
Cruel  Treatment,  257. 
Cruel  and  Abusive  Treatment,  258. 
Cruel  and  Inhuman  treatment,  259. 
Debt,  937,  939. 
Delusion,  660. 
Desertion,  51. 
Divorce,  566. 
Domicile,  40. 
Drunkenness,  350,  353. 
Duress,  617. 

Endanger  Life,  Limb  and  Health  as  Cruelty,  255,  256,  263. 
Endanger  Reason,  263. 
Extreme  Cruelty,  252,  253. 
Extreme  and  Repeated  Cruelty,  261.  ' 

Fornication,  135. 
Habitual  Drunkenness,  350. 
Impotence,  676,  691. 


INDEX.  1197 

References  are  to  sections. 

WORDS  AND  PHRASES  (continued)— 
Indignities,  390. 

Indignities  Rendering  Condition  Intolerable,  264,  390. 
Inhabitant,  41. 
Inhuman  Treatment,  259. 
Injured  Party,  432. 
Injury  to  Limb,  256. 
Levitical  Degrees,  713,  714. 
Matrimonial  Incapacity,   678. 
Mulatto,  717. 
Naturally  Impotent,  676. 
Negro,  717,  718. 
Open  Court,  800. 
Permanent  Allowance,  900. 
Person  of  Color,  718. 
Physically  Incapacitated,  677, 
Physically  Incapable,  679. 
Prostitute  Defined,  200. 
Reasonable  Cause,  95-133, 
Recrimination,  425. 
Res  Gestce,  109. 
SEBvitia,  254 
Set  Apart,  963. 
Status,  2. 
Such  Order,  962. 

SufiBcient  Pecuniary  Ability,  372. 
Unsafe,  268,  389. 
Utter,  59. 

Utterly  Desert,  59. 
Wasting  Estate,  357. 
White  Person,  718. 
Wilful,  56. 
Wilful  and  Malicious,  56,  58. 

WRIT  NE  EXEAT  REGNO,  940. 

WRIT  OF  RESTITUTION  (see  Restitutiok  of  CONJtraAL  RIGHTS,  101). 

WYOMING  — 

statute  relating  to  divorce,  page  1051. 
domicile,  page  1063. 
notice,  page  1076.