U: THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LAWS OF MARRIAGE AND DIVORCE THE LAW OF MAEEIAGE aj^d DIYORCE GIVING THE LAW IN ALL THE STATES AND TERRITORIES WITH APPROVED FORMS BY FRANK KEEZER OF THE BOSTON (MASSACHUSETTS) BAR BOSTON WILLIAM J. NAGEL 1906 T Copyright, 1906, By frank KEEZER PREFACE. In preparing this work on Marriage and Divorce I have endeavored to present in a concise manner how Marriage, the most important institution of human society, may be legally entered into and dissolved, stating the laws of the various States and citing the most important decisions of the Courts. FRANK KEEZER. Carney Bldg., Boston, May., 1906. TABLE OF CONTENTS CHAPTER I. PROMISE OF MARRIAGE, 1. An engagement to marry. 2. How may be made. 3. How may be dissolved. 4. What constitutes a breach. 5. Legal causes for a breach. 6. Contract of marriage made on Sunday. CHAPTER II. MARRIAGE. § 7. In general. 8. Definitions of marriage. 9. Source of marriage. 10. What law governs. 11. Mental capacity to marry. 12. Physical capacity to marry. 13. Marriage of person when insane. 14. Legal capacity of parties. 15. Effect of statute forbidding remarriage of guilty party after decree. 16. Pre-requisites of marriage. 17. Consent of parents. 18. Solemnization of marriage. 19. Ceremonial marriage. 20. Marriage of minors author- ized by judge of probate court. 20a. Statute forbidding marriage of epileptics. CHAPTER III. VALIDITY OR INVALIDITY OF MARRIAGE. 21. What law governs. 22. Intent of the parties. 23. Invalid marriage. § 24. Void and voidable marriage. 25. Incestuous marriage. 26. Miscegenation. [ vii ] TABLE OF CONTENTS. § 27. Consanguinity and affinity. 28. Table of States in which pro- hibited marriages are void without legal process. 29. Issue illegitimate. 30. Unnatural contracts. 31. Children. 32. Table of nonage. 33. Mistaken identity. 34. Fraudulent marriage. § 35. Marriage annulment for pre- existing, incurable syphilis. 36. Compulsory marriage. 37. Evading statute by marrying in another State. 38. Innocent party's right to re- marry. 39. Guilty party's right to remarry. 40. Marriage without a celebration. 41. Effect of intoxication on mar- riage. CHAPTER IV. PROOF OF MARRIAGE, 42. Admissions. 43. Circumstantial evidence. 44. Cohabitation. 45. Cohabitation as proof of mar- riage when it begins unlaw- fully. 46. Confessions. 47. Eyewitnesses. 48. Marriage certificates. 49. Records. 50. Repute. 51. Testimony of persons officiat- ing. 52. Necessity of proof of marriage- 53. Proof of foreign marriage. 54. Presumptions flowing from marriage ceremony. CHAPTER V. NULLITY OF MARRIAGE. .55. Distinction between "divorce" and "nullity." 56. Jurisdiction of nullity suits. § 57 .')/. Parties to nullity suits. 58. Delay in bringing suit. 59. Grounds for annulment of marriage. CHAPTER VI. DIVORCE IN GENERAL. 60. Legislative divorces. 61. Judicial divorces. 62. Absolute divorce (a matrimonii). [ viii ] vinculo 63. Partial divorce (a mensa et thoro) . 64. Legal separation. 65. Deeds of separations. TABLE OF CONTENTS. CHAPTER VII. ADULTERY. 66. Adultery as a ground for di- vorce. 67. The act must be voluntary. 68. Particeps criminis must be named if known. 69. Appearance of particeps crimi- nis. 70. Circumstantial evidence. 71. Adulterous disposition. 72. Opportunity. 73. Keeping concubine. 74. Evidence of private detective. 75. Entering house of ill-fame. 76. Venereal disease as evidence. 77. Evidence and letters of para- mour. 78. Confessions must be corrobo- rated. 79. Connivance. 80. Connivance should be pleaded. § 81. Connivance is frequently a good defence. Evidence of prostitutes and pimps. Reputation for chastity. Evidence of familiarities. 85. .\dulterj' by force. 86. Mistake of law. Mistake of fact. Separation by consent no bar to suit for adultery. Knowledge of adultery. Amendment to libel or petition. Effect of divorce for adultery on legitimacy of children. 92. Non-access. 93. Specifications of adultery. 94. Record of conviction. 82. 83. 84. 87. 89. 90. 91. CHAPTER VIII. BIGAMY. § 95. General rule. 96. Prior marriage must have been valid. 97. Unheard of for years. 98. Defence of unheard of absence for statutory period. § 99. Meaning of the term "co- habitation." 100. Legitimacy of children. 101. Remarriage before decree is made absolute. 102. Evidence of bigamy. 103. Proof of marriage. [ix] TABLE OF CONTENTS. CHAPTER IX. CRUELTY. § 104. General rule as to degree of cruelty. 105. Actual personal violence. 106. Reasonable apprehension of violence. 107. Treatment endangering health. 108. Treatment endangering life. 109. Communicating disease. 110. Denial of sexual intercourse. 111. 112. 113. 114. 115. 116. Abuse of sexual intercourse Mental suffering. False accusations and threats. Masturbation not cruelty. Drunkenness no defence to cruelty. Mutual cruelty or family jars. CHAPTER X. CONVICTION OF CRIME. 117. General rule. 118. Imprisonment in foreign State. 119. Necessity of conviction. § 120. Effect of pardon after sen- tence. 121. Marriage of a criminal pend- ing appeal. CHAPTER XL HABITUAL DRUNKENNESS. 122. Use of alcoholic liquors. 123. Use of opium or other drugs. 124. Habitual drunkenness de- fined. 125. Degree of dnmkenness. 1 26. Dipsomaniacs. •- 127. Court records. 128. Necessity of conviction. § 129. Complainant furnishing liq- uor. 130. Periodical debauches. 131. Occasional intoxication. 132. Knowledge of drunkenness at time of marriage. 133. Habitual intemperance. 134. 135. CHAPTER XII. DISCRETIONARY C.\USES. In general. Rhode Island. [x] § 136. Washington. TABLE OF CONTENTS. CHAPTER XIII. DESERTION. Definition of desertion. Desertion must be continu- ous. 139. Intention to desert. Intention to desert must be wilful. Cohabitation must actually cease. Constructive desertion. 143. Separation by mutual consent is not desertion. Desertion where both parties dwell under same roof. Refusal to leave native coun- try. 137 138 140. 141. 142. 144. 145. 146. Refusal to cohabit. 147. Refusal to renew cohabita- tion, 148. Refusal to follow husband. 149. Refusal to follow wife. 150. Husband's liability for sup- port of wife. 1.51. Posting wife. 152. Desertion is not excused by continuing support. 153. Presumption of death. 154. Refusal of sexual intercourse. CHAPTER XIV. FRArD, DURESS AND MISTAKE. 155. Fraud. 156. Fraudulent contract. 157. Duress. § 158. Mistake. 159. Antenuptial intercourse. CHAPTER XV. IMPOTENCY. § 160. In general. 161. Knowledge of defect. 162. Cause of impotency. 163. Advanced age. 164. Existence at time of mar- riage. 165. Natural impotency. 166. Temporal impotency. 167. Curable impotency. § 168 The defect must be one of copulation. 169. Burden of proof. 170. Absence of sexual intercourse. Examination of defendant's person. Refusal to submit to exami- nation. 173. Impotency must be alleged. 174. Time of instituting proceed- ings. [xi] 171. 172. TABLE OF CONTENTS. CHAPTER XVI. INSANITY. 175. In general. 176. Degree of insanity. 177. Collateral attack. § 178. Insanity after marriage. 179. An insane person cannot bring libel. CHAPTER XVII. REFUSAL TO SUPPORT. § 180. In general. 181. Wife able to support herself. 182. Physical weakness. § 183. Pecuniary ability. 184. Squandering wife's property. CHAPTER XVIII. EXCEPTIONAL CAUSES, 185. Sodomy. 186. Crime against nature. 187. Immoral or criminal conduct. 188. Fleeing from justice. 189. Gross neglect of duty. § 190. Joining Shakers or like soci- eties. 191. Indignities. 192. Defamation of character. 193. Living apart for years. CHAPTER XIX. JURISDICTION. 194. Courts having jurisdiction. § 200. 195. Domicil as basis of jurisdic- tion. 201. 196. Change of domicil. 202. 197. Domicil defined. 203. 198. Locus of cause. 204. 199. Residence not sufficient to confer jurisdiction, [xii] Residence of parties to suit. Different domicil for hus- band and wife. Acquired jvirisdiction. Jurisdiction by appearance. Jurisdiction of chancery to decree nullity of marriage. TABLE OF CONTENTS. CHAPTER XX. PASTIES. 205. Who may be plaintiffs. 206. Who are proper defendants. 207. Incompetency of parties. § 208. Incompetent defendants and guardians. 209. Legal status of wife as a party. 210. Intervening parties. CHAPTER XXI. PLEADINGS AND PROCEEDINGS FOR DIVORCE. 211. Venue. 212. Drawing libel. 213. Who may sign libel. 214. Verification of libel. 215. Any number of causes may be inserted. 216. Entry and order of notice. 217. Who may serve process. 218. Personal service. 219. Notice by publication or con- structive notice. 220. Notice by registered letter. 221. Personal service outside of state. § 222. Acceptance of service. 22.3. Identifying witness. 224. Proof of service. 225. Validity of decree obtained on publication or service outside of the state where defendant did not appear. 226. Regularity in service. 227. Criminal provisions. 228. Contingent fee in divorce cases. 229. Amenability to charge of libel. CHAPTER XXII. INTERMEDIATE PROCESS. 230. Cross-bill, libel, or petition. 231. Contest by guardian. 232. Amendments discretionary. 233. Interlocutory orders. § 234. Interlocutory decrees. 235. Protection of wife pending suit. 236. Bill of particulars. [ xiii ] TABLE OF CONTENTS. CHAPTER XXIII. EVIDENCE. 237. Burden of proof in general. 238. Pleadings as evidence. 239. Parties as witnesses. 240. Domicil and residence. 241. On plea of jurisdiction. 242. Presumption in general. § 243. Evidence of libellee. 244. Corroboration. 245. Degree of proof. 246. Depositions. 247. Records of conviction. 248. Evidence of young children. CHAPTER XXIV. DEFENCES. 249. Collusion. 250. Condonation. 251. Revival of condoned offence. 252. Delay in bringing suit. 253. Recrimination. 254. Mistake. § 255. Notice of grounds. 256. Insanity. 257. Dmnlcenness. 258. Provocation. 259. Justification or excuse. 260. Invalidity of marriage. CHAPTER XXV. DECREES. 261. Dismissal of libel. 262. General dismissal as bar to subsequent libel. 263. Dismissal without prejudice. 264. Decree of nullity. 265. Decree of affirmation. 266. Decree a vinculo matrimonii. 267. Decree nisi. [xiv] § 268. Decree a mensa et thoro. 269. Divorced woman's right to resume her maiden name or name of former husband. 270. Separate support and main- tenance. 271. Restrictions against marrying after divorce. TABLE OF CONTENTS. CHAPTER XXVI. ALIMONY. 272. In general. 273. Duty of husband to support wife. 274. Marriage as pre-requisite. 275. Alimony is allowed in aU states. 276. Manner of awarding alimony. 277. Discretion of court. 278. Permanent alimony. 279. Alimony pendente lite. 280. Alimony in nullity suits. 281. Alimony under common-law marriage. 282. Counsel fees. 283. Liability of husband and wife for legal services to wife in divorce suit. 284. Alimony allowed without di- vorce proceedings. 285. Liability of non-resident de- fendant. 286. Husband's right to alimony. 287. Prayer for alimony. 288. Attachment of husband's property. 289. How attachment may be made. 290. Husband's income. 291. Husband's ability. 292. Conduct of parties. 293. Both parties at fault. 294. Wife at fault. 295. Separation by mutual agree- ment. 296. Husband living in adultery. 297. Abandonment of wife. 298. Cruelty to wife. 299. Husband's resources. 300. Condition of family. 301. Necessity of separation of parties. 302. Previous provision for wife's support. 303. Alimony pending appeal. 304. Husband's denial under oath of grounds of divorce. 305. Wife's property or income. 306. Allowance of gross sum. 307. Wife as creditor after decree for alimony. 308. Requiring husband to dis- close on oath. 309. Reference to master. 310. Reference to arbitrator. 311. Surety for payment of ali- mony. 312. Decree of alimony as lien. 313. Enforcement of decree for alimony, (a) Making decree a lien on real estate. (6) Issuance of attachment. (c) Issuance of execution. (d) Appointment of receiver. (e) Requirement of security. (/) Issuance of injunction, (gf) Issuance of writ of ne exeat. (h) Imprisonment for con- tempt. 314. Successive executions. 315. Oath for poor debtors. 316. Appointment of trustee of wife's property. 317. Modification of decree for alimony. 318. Termination of alimony. 319. Reconciliation. 320. Effect of -nife's subsequent adultery upon alimony. 321. Nature of contempt proceed- ings to compel payment of alimony. 3210. Sister state may enforce payment. [XV] TABLE OF CONTENTS. CHAPTER XXVII. CUSTODY OF CHILDREN. § 322. Jurisdiction of court. 323. Fitness of parents. 324. Custody pending divorce pro- ceedings. 325. Grounds for award. § 326. Agreement of parties access to child. 327. Modification of award. 328. Preference of children. 329. Support of children. and CHAPTER XVIII. VACATING DECREES. 330. General rule. 331. Petition to vacate. 332. Who may bring petition. 333. Impersonation. 334. False testimony. 335. Collusion. 336. Decree vacated after subse- quent marriage. 337. Laches in vacating decree. 338. Decree under repealed statute. § 339. Declaring decree of other state void not unconstitu- tional. 340. Objection to decree nisi be- coming absolute. 341. Death of either party not a bar. 342. By the court on its own motion. CHAPTER XXIX. EFFECT OF DIVORCE ON PROPERTY RIGHTS. 343. Partial and absolute divorce. 344. Rights of husband. 345. Rights of wife. 346. Marriage settlement. 347. Rights in property. [xvi] § 348. Divorce as affecting wife's right to insurance upon her husband's life. 349. Effect of divorce on home- stead right. TABLE OF CONTENTS. CHAPTER XXX. FOREIGN DIVORCES. 350. Validity of a divorce granted in another state. 351. Validity of a divorce granted in a foreign country. 352. Rights under foreign alimony decree. § 353. Marriage under foreign di- vorce. 354. Foreign decrees as to prop- erty. 355. Prohibition of remarriage. Synopsis of the Marriage laws of the States and Territories. Synopsis of the Divorce laws of the States and Territories. Approved Forms with Index. Statistics of Marriage and Divorce. Appendix. Case of Haddock v. Haddock, reprinted in full and annotated. Table of Cases. Index. [xvii ] THE LAW OF MARRIAGE AND DIVORCE CHAPTER I. PROMISE OF MARRIAGE. 1. An engagement to marry. 2. How may be made. 3. How may be dissolved. 4. What constitutes a breach. § 5. Legal causes for a breach. 6. Contract of marriage made on Sunday. § 1. An engagement to marry. An engagement to marry is an executory contract; it is something to be executed in the future, and, lil^e all executory contracts, it is binding only on persons of full age.^ § 2. How may be made. A contract of marriage may be made by mutual agreement of a man and woman of lawful age who have sufficient intellect to understand the nature of the contract and who are free from any impediment.^ But it must appear that the parties actually intended matrimony and not an illicit relation. The agreement must show that the parties intended to be hus- band and wife.^ Both parties must consent to the marriage."* There must always be an offer of marriage and an acceptance ; and the acceptance must be within a reasonable time. The 1 Poole V. Pratt, 1 D. Chipman (Vt.), 252. See also infra, p. 22. 2Munson v. Hastings, 12 Vt. 346, 36 Am. Dec. 345. 3 Letters v. Cady, 10 Cal. 533; Clancy v. Clancy, 66 Mich. 202, 33 N. W. *McClurg V. Teny, 21 N. J. Eq. 225. 1 [1] §3.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP, I. agreement must be mutual.^ The offer need not be made in any particular form or language. It is sufficient if both par- ties understand it to be an offer of marriage.^ Again, the offer may be made by a third person authorized for the pur- pose.^ But in order to bind both parties, there must be an acceptance of the offer, a promise in return.^ After the offer is once made, if accepted within a reasonable time and before the offer is withdrawn, the agreement is complete.^ But the acceptance must be made known to the other party. ^° § 3. How may be dissolved. An engagement to marry may be dissolved by death, mutual consent of the parties, or for any incapacity such as infancy, ^^ impotency of either party, ^^ or marriage within prohibited degrees. ^^ And one cannot make a binding promise to a future marriage conditioned upon his or her obtaining a divorce or a dissolution of the marriage by death. ^^ And where the guilty party has been forbidden by the court to remarry during the lifetime of the petitioner, the agreement is invalid, and no action will lie for a breach of the promise, for there is a legal incapacity.^^ sBaird v. People, 66 111. App. 671. eVanderpool v. Richardson, 52 Mich. 336, 17 N. W. 936; Homan v. Earle, 53 N. Y. 267. 7 Prescott V. Guyler, 32 111. 323. 8 Espy V. Jones, 37 Ala. 379; Adams v. Byerly, 123 Ind. 368, 24 N. E. 130; Thurston v. Cavenor, 8 Iowa, 155; Kelley v. Riley, 106 Mass. 339; Cole v. Holliday, 4 Mo. App. 94; Yale v. Curtiss, 151 N. Y. 598, 45 N. E. 1125; Conrad v. Williams, 6 Hill (N. Y.), 444; Weaver v. Bachert, 2 Pa. St. 80, 44 Am. Dec. 159. B Veneall v. Veness, 4 F. & F. 344. 10 Graham v. Martin, 64 Ind. 567; Russell v. Cowles, 81 Mass. 582, 77 Am. Dec. 391; Green v. Spencer, 3 Mo. 318, 26 Am. Dec. 672. " Reish V. Thompson, 55 Ind. 34; Frost v. Vought, 37 Mich. 65. i2Gulick V. Guhck, 41 N. J. L. 13. 13 Paddock v. Robinson, 63 111. 99, 14 Am. Rep. 112; Drennan v. Douglas, 102 111. 341, 40 Am. Rep. 595. "Noice V. Brown, 39 N. J. L. 133, 23 Am. Rep. 213. "Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505. [2] CHAP. I.] PROMISE OF MARRIAGE. [§ 4. g 4. "What constitutes a breach. A refusal by either party without just cause to enter into the celebration at the time agreed upon constitutes a breach of the promise to marry, and is considered in law to be a breach of a contract, and an action will lie for damages, even though one of the parties is married at the time of the engagement, if he or she represented himself or herself as single and the innocent party believed him or her to be such,^^ And in determining whether there was a promise of marriage, the jury have a right to infer it from the conduct and behavior of the parties, as contracting parties are always presumed to intend what their conduct fairly indicates.^' But the weight of authority holds that if the contract is not to be performed within a year after the promise, the contract must be in writing, ^^ § 5. Legal causes for a breach. An engagement to marry may be legally broken for causes which would not be a ground for granting a divorce or an- nulling a marriage. For example, if after the engagement either party should discover that at the time of the engage- ment the other was unchaste, the engagement may be broken, and such unchastity is a good defence to a claim for damages. It is legally as well as morally a justification for breaking the engagement, for the engagement is the result of the false and fraudulent representations of one of the parties to the exec- utory contract in reference to his or her character. So, a false and fraudulent representation of one of the parties in regard to his or her wealth, rank, or social position would be a 18 Pollock V. Sullivan, 53 Vt. 507, 38 Am. Rep. 702. "Adams v. Byerly, 123 Ind. 368, 24 N. E. 130; Dean v. Skiff, 128 Mass 174; Kelly v. Riley, 106 Mass. 339; Ray v. Smith, 75 Mass. 141; Wightman v. Coates, 15 Mass. 1,8 Am. Dec. 77; Hoitt v. Moulton, 21 N.H. 586; Wagenseller v. Simmers, 97 Pa. St. 465; Whitcomb v. Wolcott, 21 Vt. 368. 18 Clark V. Pendleton, 20 Conn. 495; Nichols v. Weaver, 7 Kan. 373; Lawrence v. Cooke, 56 Me. 187; Derby v. Phelps, 2 N. H. 515. [3] § 6.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. I. sufficient ground for a breach of the contract and a good de- fence to a claim for damages. But such representations would not affect the legality of the marriage. The Supreme Court of Massachusetts says: "We think that it is well settled that fraud of such kind in its essential elements as would invalidate an ordinary contract, is a good defence to an action upon a contract to marry." ^^ Again a man is justified in breaking an engagement to marry if he is afflicted with an incurable disease, such as syphilis, which has reappeared without any new fault on his part after making the engagement, where he believed himself at that time to be entirely cured and in sound health.^" § 6. Contract of marriage made on Sunday. As a rule, contracts made on Sunday are voidable but this does not apply to an engagement to marry or a marriage ceremony. "A contract of marriage under our law is a purely civil contract. Nothing is added to its legal force or obliga- tion by entering into it with religious rites or ceremonies. Yet no one would contend that it would be unlawful for a civil magistrate to complete the execution of such a contract by joining parties in matrimony on the Sabbath, or that a contract of marriage entered into before and solemnized by a magistrate would be invalid because the act was done on the Lord's day. The reason is obvious. Such an act does not come within the category of transactions which are connected with, or appertain to, ordinary worldly business. It is neither labor, business, nor work in the sense in which these words are used by the legislature." ^i IB Smith V. Smith, 171 Mass. 406, 50 N. E. 933, 68 Am. St. Rep. 440, 41 L. R. A. 800. 20 Schakelford v. Hamilton, 93 Ky. 80, 19 S. W. 5, 15 L. R. A. 531 and note. 21 Bennett v. Brooks, 91 Mass. 118, 122. See also Bloom v. Richards, 2 Ohio St. 387. [4] CHAP. II.] MARRIAGE. [§7. CHAPTER II. MARRIAGE. 7. In general. 8. Definitions of marriage. 9. Source of marriage. 10. What law governs. 11. Mental capacity to marry. 12. Physical capacity to marrj'. 13. Marriage of person when insane. 14. Legal capacity of parties. 15. Effect of statute forbidding remarriage of guilty party after decree. § 16. Pre-requisites of marriage. 17. Consent of parents. 18. Solemnization of marriage. 19. Ceremonial marriage. 20. Marriage of minors author- ized by judge of probate court. 20a. Statute forbidding marriage of epileptics. § 7. In general. Marriage is not a mere contract. It cannot be rescinded by either party or both at their desire, for its conditions are fixed by law. Certain forms, ceremonies, or conditions must be compUed with before it is valid. Not only are the parties themselves interested but the state and the commimity. Some claim that marriage is of divine origin, others that it is the natural outgrowth of society. While the law does not expressly recognize its religious character it does recognize it as the most important of domestic relations. It is the source of the family, the safeguard of public and private morals, the strength of the nation, and, whenever the general law of contracts conflicts with the stability and purity of marriage, its character as a contract is held subordinate to its character as a domestic relation. And while the consti- tution of the United States expressly states that no state shall pass any law impairing the obligation of a contract, it is held by a great majority of decisions that marriage is not a Con- tract in the sense in which the word "contract" is there used, [5] § 9.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. II. and the provision does not apply to the law of marriage and divorce. Marriage is a legal status.^ § 8. Definitions of marriage. A legal marriage is a union of a man and woman in the lawful relation of husband and wife, whereby they can cohabit and rear legitimate children.^ Sir William Blackstone says that : " Our law considers mar- riage in no other light than a civil contract. The holiness of the matrimonial state is left entirely to ecclesiastical law. Such a contract is good and valid, if the parties were, at the time of making it, willing to contract, able to contract, and act- ually did contract, in the proper forms and solemnities re- quired by law." ^ Dole says that: ''Marriage is a contract between two com- petent persons of opposite sex to live together for life, subject to such laws as do and may govern the relation of husband and wife." ^ Bishop says: ''Marriage is a civil status of one man and one woman united in law for life, under the obligation to discharge, to each other and the community, those duties which the community by its laws hold incumbent on persons whose association is founded on the distinction of the sex."^ § 9. Source of marriage. Marriage is universal; it is founded on the law of nature. The essence of marriage is sexual union and should be pure, and, for this reason, the law favors and encourages marriage 1 Wade V. Kalbfleish, 58 N. Y. 282, 17 Am. Rep. 250; Ditson v. Ditson, 4 R. I. 87; Maynard v. Hill, 125 U. S. 190, 31 L. ed. 654. 2 Duntze v. Levett, Facility Decisions, 1816, p. 139. 3 Hull V. Hull, 2 Strobh. Eq. (S. C.) 174; Duke v. Fulmer, 5 Rich. Eq. (S.C.) 121. 4E. P. Dole's Talks About Law, 113. 6 Bishop, Marriage and Divorce, §1. See also McCabe v. Berge, 89 Ind. 225. [61 CHAP. II.] MAERIAGB. [§ 10. and frowns at divorce. Marriage in its origin is a contract of natural law; it is the parent of civil society .° § 10. What law governs. The law of the domicil of the parties controls in all ques- tions which depend upon their capacity to contract marriage.'' § 11. Mental capacity to marry. No insane person or idiot is capable of contracting a mar- riage. An engagement to marry being an executory con- tract, it requires the intelHgent assent of both parties, and a person lacking in mental capacity to understand the nature of the marriage agreement is incapable of entering the mar- riage status.^ But if a person who is insane at the time of marriage, afterward, at lucid intervals, acquiesces in the marital state no decree of annulment will be granted.^ § 12. Physical capacity to marry. Incurable impotency at the time of marriage and existing at the time of filing the libel is a ground for annulment.^'' § 13. Marriage of person when insane. A marriage with a person who has, in appropriate proceed- ings, been found to be mentally imbecile, is absolutely void ah initio, and can be at any time so declared by the court. A guardian of a lunatic cannot be removed in an ex parte proceeding in which no notice is served on him. A marriage void on account of lunacy cannot be cured merely by co- habitation after restoration. The guardian of a lunatic may bring an action to have her marriage, solemnized after she was declared insane, set aside. Receipt and confirmation of the report of a jury finding lunacy as required by statute will 6 Banks v. Galbraith, 149 Mo. 529, 51 S. W. 105. 7 Kenney v. Com., 30 Gratt. (Va.) 858. 8 Middleborough v. Rochester, 12 Mass. 363. 9 Cole V. Cole, 5 Sneed (Tenn.), 57, 70 Am. Dec. 275. 10 See Impotency, infra p. 84. [7] § 14.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. II. be presumed if the clerk acts on it by appointing a guardian." But in the absence of statute the court will not grant a divorce for insanity arising after marriage, as the court can grant a divorce to the injured party only where the other party is a wrongdoer. ^^ § 14. Legal capacity of parties. Aside from the consideration of the mental and physical ca- pacity of the parties, there are incapacities which are created by law which are based upon claims of public policy. The prohibition of persons of different races marrying, which creates a sort of racial incapacity, is treated under the subject, Mis- cegenation, in another section. ^^ The incapacity of persons within certain degrees of relationship is treated under the subject of Consanguinity and Affinity.^'* The age at which persons are considered to be capable of entering marriage is based on statute and varies in the different states. ^^ Legal capacity also includes the question of the legal condition of the parties as the result of a former marriage or divorce. If either party is already married and such marriage has never been absolutely dissolved, there is a legal incapacity to marry re- gardless of the good faith of one or the other of the parties.^^ Even though there may have been a divorce entered which was afterward vacated for fraud or other reason, the second marriage will be void, and the issue rendered illegitimate." " Sims V. Sims, 121 N. C. 297, 40 L. R. A. 737 and note, 61 Am. St. Rep. 665. 12 Curry v. Curry, 1 Wils. (Ind.) 236. 13 See infra, p. 18. 1* See infra, p. 19. 15 See Table of Nonage, infra, p. 22. 16 Brown v. BrowTi, 142 111. 409, 32 N. E. 500; Adams v. Adams, 154 Mass. 290, 28 N. E. 260, 13 L. R. A. 275, and note; Moors v. Moors, 121 Mass. 232; Glass v. Glass, 114 Mass. 563; Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411. " In re Cook 77 Cal. 220, 17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567; Cas- well V. Caswell, 120 111. 377, 11 N. E. 342; Whitcomb v. Whitcomb, 46 Iowa, CHAP. II.] MARRIAGE. [§ 15. § 15. Eflfect of statute forbidding remarriage of g^uilty party- after decree. Where a statute prohibits the guilty divorced person from remarrying, such remarriage is held voidable, and, outside the state where such statute operates, valid. These statutes have no extra territorial effect.^^ § 16. Pre-requisites of marriage. Many of the states have enacted laws governing and regu- lating marriage. Certain forms, ceremonies and conditions must be complied with before the contract is valid. After once having voluntarily been entered into in due form it is recognized in law as a civil status. ^^ § 17. Consent of parents. In some states, if the parties wishing to marry are under the age prescribed by law, the statutes require the consent of the parents or guardian. But if the celebration takes place in another state, where there is no such provision in the statute, the marriage is valid if the parties were old enough to contract marriage, and this is true even though they left the state for the sole purpose of evading the statute requiring the consent of parents.^'' Prohibitory laws not based upon natural laws have no extra-territorial effect. ^^ The effect of these statutes is not to render such marriages void if they have been duly solemnized, even though the provisions of the statutes have not been complied with. They are intended to prevent, as far as possible, ministers and magistrates from 437; Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393; Allen v. Maclellan, 12 Pa. St. 328. 18 Succession of Hernandez, 46 La. Ann. 962, 15 So. 461, 24 L. R. A. 831; State v. Weatherby, 43 Me. 258, 69 Am. Dec. 59; Thorp v. Thorp, 90 N. Y. 602, 43 Am. Rep. 189. "McCabe v. Berge, 89 Ind. 225. 20 Com. V. Graham, 157 Mass. 73, 31 N. E. 706, 34 Am. St. Rep. 255, 16 L. R. A. 578 and note. 21 Fuller V. Fuller, 40 Ala. 301; State v. Weatherby, 43 Me. 258, 69 Am. Dec. 59; Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 444. [9] § 19.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. II. solemnizing marriages when the prescribed conditions of the statutes have not been fulfilled by inflicting upon them a penalty for so doing. In a Massachusetts case the court said: "When a justice or minister shall solemnize a marriage between parties who may lawfully marry, although without the consent of the parents or guardians, such marriage would unquestionably be lawful, although the officer would incur the penalty for a breach of his duty.^^ § 18. Solemnization of marriage. At common law and in some states no formal ceremony is required to make a marriage valid. A mere contract between the parties is sufficient, although such marriages are looked upon with disfavor everywhere.^^ § 19. Ceremonial marriage. In most states the law plainly sets out how and by whom a marriage may be celebrated, usually by an ordained minister of the gospel, a magistrate, or according to the rites of Quakers. It is not quite clear, however, in some states whether a cele- bration is absolutely necessary or not. There should always be either a religious ceremony or a civil celebration and all marriages by simple consent should be declared void on the ground of public policy. Such marriages are contrary to the principles of sound morality, and a man and woman living together without the formality of a celebration are in reality living in a state of adultery, and should be prevented from so doing by criminal statutes, for this reason if no other, that, should there be children born while the parents are living in this state they would be illegitimate and consequently inno- cent sufferers. Again, where two persons intend to form a union for life they can have no reasonable excuse for conceal- ing the fact from the rest of the world, for the celebration can be obtained with little expense. Then there is always diffi- 22 Milford V. Worcester, 7 Mass. 48. 23 Beamish v. Beamish, 9 H. L. Cases, 306. [10] CHAP. II.] MARRIAGE. [§ 20. culty to determine whether persons so loosely joined together are married or not, and it requires very unpleasant and ex- pensive litigation to determine the question. The court said in a Massachusetts case that, "The mere belief of either or both parties that they were husband and wife does not con- stitute a legal marriage."^'* § 20. Marriage of minors authorized by judge of probate court. In Massachusetts the judge of probate for the county in which a minor male under eighteen years, a minor female under sixteen years, reside, may, after a hearing, make an order allowing the marriage of such minor, if the father of such minor, or, if he is not living, the mother, or, if neither parent is alive, and resident in the commonwealth, a legal guardian duly appointed, has consented to such order. The judge of probate may also after a hearing make such order in the case of a person whose age is alleged to exceed that specified above, but who is unable to produce an official record of birth, whereby the reasonable doubt of the clerk or register may be removed. ^^ § 20a. statute forbidding marriage of epileptics. The states of Connecticut, Kansas, Michigan, Minnesota and Ohio have passed a law substantially as follows: No man or woman either of whom is epileptic, imbecile, or feeble minded, shall intermarry or Hve together as husband and wife when the woman is under forty-five years of age, prohibiting such mar- riage does not contravene Const, of Conn., art. 1, § 1, guar- antying equahty in the rights of Hberty and the pursuit of happiness, and one induced by fraudulent concealment to marry an epileptic forbidden by statute is entitled to a divorce on the ground of fraudulent contract. ^^ 2* Thompson v. Thompson, 114 Mass. 566; Com. v. Munson, 127 Mass. 459, 34 Am. Rep. 411. 25 Mass. Rev. Laws, c. 151, § 20. 20 Gould V. Gould, 78 Conn. 242, 61 Atl. 604 and cases cited. [11] §21.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. CHAPTER III. VALIDITY OR INVALIDITY OF MARRIAGE. § 34. Fraudulent marriage. 35. Marriage annulment for pre- existing, incurable syphilis. 36. Compulsory marriage. 37. Evading statute by marrying in another state. 38. Innocent party's right to re- marry. 39. Guilty party's right to re- marry. 40. Marriage without a celebra- tion. 41. Effect of intoxication on mar- riage. § 21. What law governs. 22. Intent of the parties. 23. Invalid marriage. 24. Void and voidable marriage. 25. Incestuous marriage. 26. Miscegenation. 27. Consanguinity and affinity. 28. Table of states in which pro- hibited marriages are void without legal process. 29. Issue illegitimate. 30. Unnatural contracts. 31. Children. 32. Table of nonage. 33. Mistaken identity. § 21. "WTiat law governs. The validity of a marriage depends upon the law of the place where the marriage is performed. It matters not where the marriage takes place. If the parties are once legally married according to the lex loci contractus, the place where the mar- riage takes place, they are legally married everywhere.^ Story says that a marriage valid in one locality is valid everywhere. But this applies only to the validity of the cele- bration and not to the capacity of the parties. As to the latter, the law of their place of abode controls. So, if they are not competent to marry at home, they cannot enter into a valid marriage abroad. The validity of a marriage de- pends upon its validity at the place of its celebration.^ 1 Harrison v. State, 22 Md. 468, 85 Am. Dec. 658; Com. v. Kenney, 120 Mass. 387. 2 Harrison v. State, 22 Md. 468, 85 Am. Dec 658; Com. v. Kenney, 120 Mass. 387. [12] CHAP. III.] VALIDITY OR INVALIDITY OF MARRIAGE. [§21. ILLUSTRATIONS. A negro and a white person whose domicil was in Massa- chusetts were married in Rhode Island where such a marriage was valid, although it was void in Massachusetts.^ The Massachusetts court held the marriage valid because it was valid m Rhode Island where it was solemnized.^ And where a negro married a white person in South Carolina, such mar- riage being permitted there, but both parties were domiciled residents of North Carolina, where such marriages were not permitted, the marriage is void in North Carolina, But where its celebration took place in South Carolina, and both parties removed there immediately with the honest intention at the time of making that state their home, the marriage was held to be valid. The validity of the marriage depends upon the capacity of the parties. It makes no difference where the celebration takes place. The law of the domicil prevails.^ And where a man married his mother's sister in England, where such a marriage was not forbidden, and afterward removed to Massachusetts and became domiciled there, the Massachusetts court held the marriage to be valid; but if such a marriage had been entered into in Massachusetts it would have been absolutely void.^ Again, where a person has been forbidden to marry, as where the court has imposed a restriction upon the libellee after a divorce in one state, and he or she goes to another state, where the prohibition does not apply, and is married according to the laws of that state, the marriage is valid everywhere.^ 3 statute of 1786, c. 3, § 7. 4Medway v. Xeedham, 16 Mass. 157, 8 Am. Dec. 131; Putnam v. Put- nam, 25 Mass. 433. estate r. Kennedy, 76 X. C. 251, 22 Am. Rep. 683; State v. Ross, 76 N. C. 242, 22 Am. Rep. 678. 8 Sutton V. Warren, 51 Mass. 451. 7 Wilson V. Holt, 83 Ala. 528, 3 So. 321, 3 Am. St. Rep.768; FuUer v. Ful- ler, 40 Ala. 301; Putnam v. Putnam, 25 Mass. 433. [13] § 22.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. EXCEPTIONS TO RULE. The only exceptions to the general rule, "that a marriage valid where it is contracted is valid everywhere," are the following : — (a) Polygamous marriages. Such marriages, although valid by the law of the place where the parties were domiciled will not be upheld in a country where polygamy is a crime.* (6) Incestuous or unnatural marriages, as where a man marries his mother or sister. Such marriages being contrary to nature, will not be upheld, though permitted by the law of the domicil of the parties.^ (c) Marriages which the legislature of a state have declared shall not be allowed any validity because they are contrary to the policy of its law.^*' In Massachusetts, where a marriage between a man and his deceased wife's sister is lawful, if the marriage was solem- nized in the above state, it would be valid in those states where such marriages are prohibited. ^^ § 22. Intent of the parties. Although the statutes prescribe by whom a marriage shall be celebrated, the law looks at the intention of the parties and, if possible, will declare the marriage valid, even though there is some irregularity. This is done on the ground of public policy and the courts hold that it is a substantial com- pliance with the statute for regulating marriages for the par- ties themselves to make the mutual agreement in the presence of a justice of the peace or a minister, with his assent, he un- dertaking to act in his official capacity. But if the justice or 8 Hyde v. Hyde, L. R. 1 P. & D. 133. See also Brinkley v. Atty. Gen., 15 P. D. 76 ; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509. 9 Story, Conflict of Laws, § 114; Sutton v. Warren, 51 Mass. 451. 10 Com. V. Lane, 113 Mass. 458, 18 Am. Rep. 509 ; Com. v. Graham, 157 Mass. 73, 31 N. E. 706, 34 Am. St. Rep. 255, 16 L. R. A. 578. " Greenwood v. Curtis, 6 Mass. 378, 4 Am. Dec. 145. [14] CHAP. III.] VALIDITY OR INVALIDITY OF MARRIAGE. [§ 23. minister does not consent to act in his official character, the marriage is void.^^ Also, where the parties testified that seven years before they went before a justice of the peace for the county where they both lived, and in the town where the justice resided with the intent of both to contract a marriage before the justice; that the man stated in the presence and hearing of the justice that the woman was his wife; that after- ward he and she lived together as husband and wife, and had children; that he believed himself lawfully married to her, and she believed herself lawfully married to him. The justice testified that he did not understand that he married the parties at the time and all that was said by either was that the plaintiff introduced the woman as his wife. The court held the marriage valid. ^^ The court said "the policy of the law, as thus expressed, is strongly opposed to regarding a marriage, entered into in good faith, believed by one or both parties to be legal and followed by cohabitation, void. A liberal construction of the statute authorizes us to construe it as including a case where the parties go before a magistrate or minister, make a marriage contract in some form in his presence, in the belief that he sanctions and assents to it in his official capacity, and cohabit as husband and wife after- ward, believing that they are legally married, though the magistrate understands the matter differently and does not intend to act officially in the matter. The misunderstanding between the parties and the magistrate may be regarded as an informality not rendering the marriage void. The spirit of the statute would be violated by holding the parties to be fornicators and the children illegitimate." ^'^ § 23. Invalid marriage. A marriage which is invalid where it was celebrated is in- 12 Milford V. Worcester, 7 Mass. 48. "Meyers v. Pope, 110 Mass. 314. " Meyers v. Pope, 110 Mass. 314. [15] § 24.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. valid everywhere. The parties must comply with the forms required by the law of the place where they contract the marriage or it will be invalid, except: — in cases where there is a special provision of law applicable to marriages of for- eigners according to the rites of their own country; in cases of ambassadors, consuls, etc., where the parties enjoy extra- territorial rights; ^^ and in cases where a compliance with the law is impossible, A ceremony, performed by a man and woman in good faith as a marriage rite, no third person par- ticipating, and no magistrate or minister, nor any person believed to be such, being present, and neither party being a Friend or Quaker, does not constitute a valid marriage under the laws of Massachusetts.^^ § 24. Void and voidable marriage. A void marriage confers no legal rights, and, when it is determined that the marriage is void, it is as if no marriage had ever been performed. The grounds for declaring a mar- riage void are based usually upon some incapacity of the parties to contract marriage, owing to their relationship, their mental or physical capacity, or some other express prohibi- tion.i^ A voidable marriage differs from a void marriage in that it may be afterwards ratified by the parties and become valid and usually is treated as a valid marriage until it is decreed void. The issue of a voidable marriage declared void is legiti- mate, and the tendency is to construe a marriage voidable rather than void, when such a construction is possible.^® 15 Loring v. Thomdike, 87 Mass. 257. 16 Com. V. Munson, 127 Mass. 459, 34 Am. Rep. 411. 17 See Miscegenation, infra, p. 18; Incestuous Marriage, infra, p. 17; Consanguinity and Affinity, infra, p. 19; Unnatural Contracts, tn/ra^ p. 21 ; Insane Persons and Idiots, infra, p. 7. 18 See Children, infra, p. 21; Compulsory Marriage, infra, p. 24; Evading Statute by Marrying in Another State, infra, p. 25; Mistaken [16 1 CHAP III.] VALIDITY OR INVALIDITY OF MARRIAGE. [§25. § 25. Incestuous marriage. Most states have, by statute, defined the degree of rela- tionship rendering persons incompetent to marry, and certain marriages of parties related to each other within the pro- hibited degree of consanguinity and affinity are either void or voidable. The following table is a fair example of these statutes: A MAN SHALL NOT MARRY His stepmother His grandfather's wife His son's wife His mother His grandmother His daughter His granddaughter His sister His grandson's wife His wife's mother His wife's grandmother His wife's daughter His wife's granddaughter His brother's daughter His sister's daughter His father's sister His mother's sister A WOMAN SHALL NOT MARRY Her stepfather Her grandmother's husband Her daughter's husband Her father Her grandfather Her son Her grandson Her brother Her granddaughter's husband Her husband's father Her husband's grandfather Her husband's son Her husband's grandson Her brother's son Her sister's son Her father's brother Her mother's brother ^^ And these prohibitions continue, notwithstanding the dis- solution by death or divorce of the marriage by which the affinity was created, unless the divorce was granted because such marriage was originally unlawful or void. It has been held in Virginia that where a man married his deceased wife's sister, that such a marriage was absolutely void.^'* The stat- Identity, infra, p. 23 ; Fraudulent Marriage, infra, p. 24 ; Duress, infra, p. 81; Fraud, iyifra, p. 81; Mistake, infra, p. 82. 19 Mass. Rev. Laws, c. 151, §§ 1, 2. 20 Kelly V. Scott, 5 Gratt. (Va.) 479. 2 [17] §26.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. utes of most states declare marriages within the prohibited degrees void, but as a rule the courts hold the word "void," when used in this connection, to mean voidable only. § 26. Miscegenation. Miscegenation, or the mixing of races, is prohibited by the statutes of some states, and marriages between a white person and a negro, an Indian, or a Mongolian, are declared void. Such statutes are not considered laws "impairing the obliga- tion of contracts," within the meaning of the constitution of the United States, and are, therefore constitutional.^^ The validity of such marriages depends upon the law of the domicil of the parties thereto and not upon the place of contract, it being a question of the legal capacity of the par- ties and not one relating to the proper solemnization. Such legal incapacity is not avoided by a ceremony performed in a state where such marriages are valid, if the domicil of the parties is not changed. ^^ In general, the laws relate to marriages of white persons and negroes in the southern states, although some northern states have similar provisions, while in South Carolina, at least, there is no such prohibition and such marriages are valid. What constitutes a "negro," or "colored person" has arisen and has been determined in opinions shaded to blend with local color or conditions. ^^ And in a recent case in Missouri the supreme court held that, it having always been unlawful in Missouri for white persons and negroes to intermarry, no common-law marriage existed between a white man and a negro woman who cohabited together without any marriage ceremony, from 1851 to 1883, and had children born to them; 21 Pace V. Alabama. 106 U. S. 583, 27 L. ed. 207; Dred Scott v. Sand- ford, 19 How. (U. S.) 393, 15 L. ed. 691; In re Hobbs, 1 Woods (U. S.), 537, Fed. Cas. No. 6,550; Kinney v. Com., 30 Gratt. (Va.) 858. 22 State V. Kennedy, 76 N. C. 251, 22 Am. Rep. 683. 23 Felix V. State, 18 Ala. 720; Bailey v. Fiske, 34 Me. 77; State v. Watters, 3 Ired. (N. C.) 455; McPherson v. Com., 28 Gratt. (Va.) 939. [18] CHAP. III.] VALIDITY OR INVALIDITY OF MARRIAGE. [§ 27. that the fact that the woman, after her emancipation from slavery, continued living with the man without any marriage ceremony as she had done before, did not raise a presumption of a common-law marriage in view of the fact that they sep- arated in 1883, and that a marriage between them would have been criminal ; and that children born to such persons did not fall within a statute providing that ' ' the issue of all marriages declared null in law, or dissolved by divorce, shall be legiti- mate." 24 § 27. Consanguinity, Subd. 1. The terms "consanguinity" and "affinity" are used to define certain relationships which may constitute impediments to marriage and grounds for its annulment, the term "consanguinity" being used to designate a rela- tionship of blood. -^ Affinity. Subd. 2. The term "affinity" is used to designate a rela- tionship formed by marriage. ^^ Marriages between persons of a relationship within certain degrees of blood or marriage are, by statute, generally pro- hibited and declared void and classed as "incestuous mar- riages." 2' 24 Keen v. Keen (Mo.), 83 S. W. 526. 25 Blodgett V. Brinsmaid, 9 Vt. 27. See also Words & Phrases, vol. 2, p. 1435. 26 Ex parte Harris, 26 Fla. 77, 7 So. 1, 23 Am. St. Rep. 548, 6 L. R. A. 713. See also Words & Phrases, vol. 1, p. 245. 27 See supra, p. 17. [19] § 29. ] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. § 28. Table of states in which prohibited marriages are void without legal process. Alabama. Marriage void without legal proceedings. Arizona. If married in the state, void without legal pro- ceedings. Arkansas. Colorado. District of Columbia. Idaho. Indiana. Indian Territory. Maine. Massachusetts. Michigan. Montana. Nevada. New Hampshire. Oklahoma. Oregon. South Dakota. Vermont. Virginia. Wisconsin. Wyoming. Rhode Island. Except that the law shall not extend to, or affect any marriage which shall be solemnized among the Jews within the degrees of affinity or consanguinity allowed by their religion. § 29. Issue illegitimate. The issue of a marriage which is void by reason of affinity or consanguinity between the parties is illegitimate. But a marriage contracted out of the state and valid where con- tracted, if not incestuous by the law of nature will be valid.^* [20] 28 Sutton V. Warren, 51 Mass. 451. CHAP. III.] VALIDITY OR INVALIDITY OF MARRIAGE. [§ 31. § 30. Unnatural contracts. There can be no marriage between any two persons of the same sex, and no kind of an attempted solemnization of such a marriage can be legal or valid.^' § 31. Children. At common law the marriage of a child under seven years of age is absolutely void.^" And the marriage of a male child between the age of seven and fourteen years and a female child between seven and twelve is voidable.^^ At common law the marriage is considered legal if the parties have arrived at the age of puberty, which is fourteen years in the male and twelve in the female.^' Though by statutes of the different states the age of nonage varies, marriages under these ages are voidable rather than void. Such marriages may be ratified by sexual intercourse after arriving at lawful age, and such ratification is an abso- lute defense to an action for annulment or divorce.^^ But in an Ohio case it was held that a marriage by an infant under the age of consent was void unless confirmed by cohabitation after arriving at lawful age.^^ At common law an infant who married under the age of consent could deny and avoid the marriage without any judicial decree.^^ But by statute in most states such a mar- 29 Lloyd Law of Divorce, p. 18. 30 1 Bishop Marriage and Divorce, §147. 31 1 Blackstone Comm. 436; Beggs v. State, 55 Ala. 108; Bonker v. People, 37 Mich. 4; State v. Cone, 86 Wis. 498, 57 N. W. 50. 32 Beggs V. State, 55 Ala. 108; Barton v. Hervey, 67 Mass. 119; Bennett V. Smith, 21 Barb. (N. Y.) 439; Fisher v. Bernard, 65 Vt. 663, 27 Atl. 316. 33 Goodwin v. Thompson, 2 Greene (Iowa), 329; Koonce v. Wallace, 7 Jones, (N. C.) 194. 34Shafher v. State, 20 Ohio, 1. 35 Beggs V. State, 55 Ala. 108; People v. Bennett, 39 Mich. 208; Governor V. Rector, 10 Humphr. (Tenn.) 57, [21] §32.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. riage is considered valid until set aside by decree of court. ^® § 32. Table of nonage. Nonage as here used signifies the age below which a person is either forbidden to marry or, if starred, is not permitted by law to be married except under certain restrictions. IVIALE. Alabama 17 years Arizona 18 Arkansas 17 California 18 *Colorado 21 ^Connecticut 21 Delaware 18 *District of Columbia 21 ^Florida 21 Georgia 17 Idaho 18 Illinois 18 Indiana 18 Indian Territory 17 Iowa 16 *Kansas.t 17 Kentucky 14 Louisiana 14 *Maine 21 *Maryland 21 Massachusetts 14 Michigan 18 Minnesota 18 ^Mississippi 21 *Missouri 21 36 Walls V. State, 32 Ark. 565; State v. Cone, 86 Wis. 498, 57 N. W. 50. t See p. 205. [22] FEMALE. ars 14 years 16 ' 14 * 15 " 18 ' 21 ' i 16 ' 18 ' 21 ' 14 ' 18 ' 16 ' 16 ' 14 ' 14 ' 15 ' 12 ' 12 ' 18 ' 16 ' 12 ' 16 ' 15 ' 18 ' 18 ' CHAP. III.] VALIDITY OR INVALIDITY OF MARRIAGE. [§ 33. MALE. FEMALE. Montana 18 years 16 years Nebraska 18 " 16 " Nevada 18 " 16 " New Hampshire 14 " 13 " *New Jersey 21 '' 18 " New Mexico 18 " 15 " New York 18 " 18 " North CaroHna 16 " 14 " North Dakota 16 " 13 " Ohio 18 " 16 " Oklahoma 18 " 15 " Oregon 18 " 15 " *Pennsylvania 21 " 21 " PhiHppines 14 " 12 " Porto Rico 18 '' 16 " *Rhocle Island 21 " 21 " South Carolina No statute South Dakota. 18 " 15 years. Tennessee 14 " 12 " Texas 16 " 14 " Utah 16 " 14 " *Vermont 21 " 18 " Virginia 14 " 12 " *Washington 21 " 18 " West Virginia 18 " 16 " Wisconsin 18 " 15 " Wyoming 18 " 16 " § 33. Mistaken identity. A marriage performed between two persons is invalid, if one of the parties thereto was honestly mistaken as to the identity of the other and believed such person to be somebody else, and the marriage was not afterwards ratified by cohab- itation or voluntary sexual intercourse.^^ 37 Bishop Marriage and Divorce § 20S. [23] § 36.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. § 34. Fraudulent marriage. Gross fraud in the marriage, such as outrageous falsehood or misrepresentations by one of the parties to the contract is sufficient to render a marriage voidable.^* But false state- ments as to position in society, bodily health, wealth, and family connections are not sufficient to invalidate a mar- riage.^^ § 35. Marriage annulment for preexisting, incurable syphilis. It is within the power of a judge of the superior court to enter a decree for a libellant, under Mass. Pub. St., c. 145, § 11, declaring the marriage void, where it appears that the libel- lant, soon after the ceremony and before the consummation of the marriage, on learning that the respondent was afflicted with a venereal disease, refused to live with and never did live with him, and the judge finds that he was constitutionally afflicted with syphilis with which the libellant would become infected in case of cohabitation, and "that the disease would be transmitted to any offspring which they might have; that, while it was not absolutely incurable, the chances of a cure being effected in the state in which the respondent was were very remote and doubtful." '^^ So if a woman has, at the time of her marriage, chronic, incurable syphilis from which copula- tion with her is attended with great danger of contracting the same malady, her husband is entitled to a decree annulling the marriage.^^ § 36. Compulsory marriage. A compulsory marriage is illegal and void, if it is not after- wards ratified by the parties. Thus, where a woman is forced into the relationship at the point of a pistol or is put in fear of great bodily harm she is not legally married, unless she 38Leavitt v. Leavitt, 13 Mich. 452; Carris v. Carris, 24 N. J. Eq. 516. 39 Benton v. Benton, 1 Day (Conn.), 114; Leavitt v. Leavitt, 13 Mich. 452; Clarke v. Clarke, 11 Abb. Pr. 228. (N. Y.). 40 Smith 7'. Smith, 171 Mass. 404, 50 N. E. 933, 68 Am. St. Rep. 440. « Ryder v. Ryder, 66 Vt. 158, 28 Atl. 1029, 44 Am. St. Rep. 833. [24] CHAP. III.] VALIDITY OR INVALIDITY OF MARRIAGE. [§ 37.. afterwards consents by cohabitation or voluntary sexual in- tercourse.^^ The proof disclosed that the relatives of the defendant insisted upon the plaintiff marrying her, believing that he had seduced and ruined her, and that to marry her was his duty under the circumstances; and further that the plaintiff upon due consideration of the pressure which was brought to bear upon him, and of his duty to repair a wrong he had done the girl, yielded a reluctant and passive consent to the per- formance of a marriage ceremony. It was held that a case was not presented which justified a court in annulling the marriage which was thus brought about."*' § 37. Evading statute by marrying' in another state. When persons residing in one state in order to evade the statutes as to prohibited marriages, and with the intention of returning to reside in that state, go into another state and there have the marriage solemnized and afterwards return and reside in that state, the marriage is void and may be annulled. To warrant such a decree, however, both parties must have intended to evade the statute."*^ § 38. Innocent party's right to remarry. An absolute divorce renders the innocent party free to contract a second marriage.^^ § 39. Guilty party's right to remarry. In many states the guilty party has the right to remarry. In others he or she is prohibited from contracting another mar- riage for a certain length of time. And in still others he or she «Bassett v. Bassett, 9 Bush. (Ky.) 696; Collins v. Collins, 2 Brews. (Pa.) 515; WiUard v. Willard, 6 Baxt. (Tenn.) 297, 32 Am. Rep. 529. "Collins V. Ryan, 49 La. Ann. 1710, 43 L. R. A. 814 and note. "Corn. V. Lane, 113 Mass. 458, 18 Am. Rep. 509; Whippen v. Whippen, 171 Mass. 560, 51 N. E. 174. «Whitsell V. Mills, 6 Ind. 231; Barber v. Root, 10 Mass. 260; Hunt v. Thompson, 61 Mo. 148. [25] § 40.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. is prohibited from marrying altogether. But this prohibition applies only to a marriage contracted in the state and would not affect the legality of a marriage contracted in another state, for the courts have no extra-territorial jurisdiction; they cannot place restraint upon persons beyond the state's borders."^® Dole says, "Whether divorce should free the guilty from the bond of matrimony as well as the innocent is a question upon which there is much difference of opinion. Persons for whose gross misconduct divorces have been decreed certainly have no just ground of complaint if they are not permitted to marry again. On the other hand, such persons frequently find new and more congenial companions, and make exemplary husbands and wives, and perhaps the public good may require that they should not be turned loose upon society, deprived of that right, for, unless they are better than the average of mankind — an absurd presumption in such cases — they almost invariably form illicit connections if marriage is denied them. "^^ § 40. Marriage without a celebration. A marriage without a celebration is called a common-law marriage. It may be entered into by simple consent of the parties to take each other as husband and wife, but the con- sent must be mutual to constitute the marriage. The law looks to the intention of the parties to form the relationship rather than to the use of words which may or may not have been meant to be final. For the man to say, "This is your wedding ring, we are married" and followed by cohabitation has been held sufficient. No technical words are necessary even where a celebration is required by law.''* And it has been held, where the woman said, "I hereby declare A, B. to "Wilson V. Holt, 83 Ala. 528, 3 So. 321, 3 Am. St. Rep. 768; Fuller v. Fuller, 40 Ala. 301 ; Putnam v. Putnam, 25 Mass. 433. " E. P. Dole, Talks About Law, p. 161. <8 Dickerson v. Brown, 49 Miss. 357. [26] CHAP. III.] VALIDITY OR INVALIDITY OF MARRIAGE. [§ 40. be my husband," the declaration being answered by words or signs acknowledging the relationship, that this constituted marriage. Mere words without any intention of the parties will not make a marriage. Thus, where the marriage cere- mony is gone through in jest or with the distinct understanding that it is not for the purpose of marriage, or where one of the parties is mistaken and believes the ceremony to be a mere preliminary, there is really no consent given, and can be no marriage.'*^ And where one party impersonates another and by this means procures a marriage ceremony to be performed, the marriage is void. So where two parties go through a marriage ceremony in masquerade, each mistaking the identity of the other, there is no marriage. Again, where A consents to become betrothed to B and the marriage ceremony is gone through with between them upon the pretence or belief that it means only betrothal, it is not binding.^'' So, too, where a marriage ceremony was performed and the parties had a private understanding that it would not take efTect or be binding for at least two years, the validity of the marriage was successfully assailed by the woman. A marriage contract can be entered into by letter or by a message by a third party, but must be accepted within a reasonable time. To constitute the relationship there must be mutual assent in all respects. Where the words are used by one and assented to by the other, but not understanding or intending a marriage, there is no marriage. A promise of marriage at some future time with a mutual understanding that it shall take place is sufficient consent to constitute marriage if consummated by sexual intercourse.^^ And where a man and woman are living together and by general repute are husband and wife, it will not be presumed that they are living together in a state of fornication. But in the cases just « McClurg V. Terry, 21 N. J. Eq. 225. 50 Clark v. Field, 13 Vt. 460. 51 Cargile v. Wood, 63 Mo. 501. [27] § 41.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. III. mentioned where the courts have held that there was no mar- riage, like marriages followed by sexual intercourse, would be ratified and held valid. So an agreement between a man and his divorced wife to let the past be past and from that time on they would again live together as man and wife fol- lowed by cohabitation, constitutes a valid marriage at common law.^2 Where a celebration is required no technical words are necessary. It is sufficient if both parties actually intend to become husband and wife.^^ § 41. Effect of intoxication on marriage. An appellate court will not reverse the decree of the trial court as being against the evidence where the evidence is conflicting upon the subject of the mental capacity of one who enters into a marriage contract, where there is suflacient evidence, if believed, to show that the party was not deprived of the use of his reasoning faculties at such time, and where the uncontradicted evidence shows that the party has repeatedly since the marriage ratified the same by cohabitation with the other party thereto. If a party at the time of entering into a marriage contract, is so intoxicated as to be non compos mentis, and does not know what he is doing, and is for the time deprived of reason, the marriage is invalid; but is not invalid if the intoxication is of a less degree than that stated, A marriage invalid at the time for want of mental capacity of one of the parties thereto may be ratified and made valid afterwards by any acts or conduct which amount to a recogni- tion of the same.^'* 52Mickle V. State (Ala.), 21 So. 66. 53 Dickerson v. Brown, 49 Miss. 357. 64 Prine v. Prine, 36 Fla. 676, 18 So. 781, 34 L. R. A. 87 and note. 28 ] CHAP. IV.] PROOF OF MARRIAGE. [§42. CHAPTER IV. PROOF OF MARRIAGE. 42. Admissions. § 49. Records. 43. Circumstantial evidence. 50. Repute. 44. Cohabitation. 51. Testimony of persons oflSciat- 45. Cohabitation as proof of mar- ing. riage when it begins unlaw- 52. Necessity of proof of marriage. fully. 53. Proof of foreign marriage. 46. Confessions. 54. Presumptions flowing from 47. Eyewitnesses. marriage ceremony. 48. Marriage certificates. § 42. Admissions. The admissions of a party, as a rule, may be used against him in any case, civil or criminal, and the same applies to an action for divorce. Such admissions are not necessarily con- clusive, but are admitted and have the same weight as in other cases. ^ § 43. Circumstantial evidence. A marriage may be proved by circumstantial evidence in divorce cases, as readily as any other question of fact in any other case.^ § 44. Cohabitation. In the absence of any charge of criminal intent, as in the case of bigamy, marriage may be presumed to exist as a fact 1 Clayton v. Clayton, 4 Colo. 410, State v. Libby, 44 Me. 469, 69 Am. Dec. 115; Com. v. Caponi, 155 Mass. 534.. 30 N. E. 82; State v. Gonce, 79 Mo. 600. 2Lowry v. Coster, 91 III. 182; Camden v. Belgrade, 75 Me. 126; Com. v. DiU, 1,56 Mass. 226, 30 N. E. 1016; Gibson v. Gibson, 24 Neb. 394, 39 N. W. 450; Mitchell v. Mitchell, 11 Vt. 134. [29] § 47.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. IV. between a man and woman, who have openly cohabited and consorted together, under circumstances which would justify the presumption. This presumption of fact is based upon the various presumptions of law in favor of innocence rather than guilt, of regularity in a ceremony rather than irregularity, and a general presumption of marriage.^ But this cohabitation must be more than mere association or even illicit intercourse, and should be shown to be of such continuous and open nature as to create a general reputation among relatives or neighbors that the parties are married."* § 45. Cohabitation as proof of marriage when it begins un- lawfully. A continuance of cohabitation after the removal of an obstacle to a valid marriage will not be sufficient to con- stitute such a marriage, where the cohabitation began under an illegal marriage entered into in good faith by one of the parties only.° § 46. Confessions. Admissions made in writing by a party may be construed as a confession and be introduced against him.^ § 47. Eyewitnesses. Witnesses who were present and saw the parties united in 3Lampkin v. Travelers' Ins. Co., 11 Colo. App. 249, 52 Pac. 1040; Harman v. Harman, 16 111. 85; Taylor v. Robinson, 29 Me. 323; Com. v. Kenney, 120 Mass. 387; Com. v. Littlejohn, 15 Mass. 163; Vreeland v. Vreeland, 18 N. J. Eq. 43; Bullock v. Bullock, 85 Hun (N. Y.), 373, 32 N. Y. Supp, 1009; Finn v. Finn, 12 Hun (N. Y.), 339; Odd Fellows Benefi- cial Assoc. V. Carpenter, 17 R. I. 720, 24 Atl. 528; United States v. Green, 98 Fed. 63. * Budington v. Munson, 33 Conn. 481 ; Peet v. Peet, 52 Mich. 464, 18 N. W. 220; Gall v. Gall, 114 N. Y. 109, 21 N. E. 106; Strauss's Estate, 168 Pa. St. 561, 32 Atl. 98; Moore v. Moore, 102 Tenn. 148. 52 S. W. 778. 6 Collins V. Voorhees, 47 N. J. Eq. 555, 22 Atl. 1054, 24 Am. St. Rep. 412, 14 L. R. A. 364. 6 Com. V. Caponi, 155 Mass. 534, 30 N. E. 82. [30] CHAP. IV.] PROOF OF MARRIAGE. [§ 48. marriage are competent to testify to that fact, and the mar- riage may be proved as fully in that manner as by any other evidence.^ § 48. Marriage certificates. A certificate of marriage, signed by the clergyman, or magis- trate who performed the marriage ceremony may be admitted as evidence of the marriage, though sometimes evidence of the proper execution and the identity of such person is demanded.* § 49. Records. The records kept by an official in accordance with legal re- quirements may be admitted in divorce cases in the same manner as in other cases and will have equal weight. But in order for a record, or a certified copy of a record, when such is admissible, to be considered as proving a marriage it must show clearly that there was a marriage performed be- tween the parties by a competent official and that the legal prerequisites were complied with.^ § 50. Repute. As stated under " Cohabitation " {supra, § 44), the reputa- tion of the parties to the alleged marriage must be shown, as well as the cohabitation, and such reputation must result from the cohabitation by the parties. Reputation, without proof of cohabitation, is of itself of little consequence. ^° 7 Com. V. Littlejohn, 15 Mass. 163; Com. v. Norcross, 9 Mass. 492; Flem- ing V. People, 27 N. Y. 329; Patterson v. Gaines, 6 How. (U. S.) 550, 12 L. ed. 553. 8 Jones V. Jones, 18 Me. 308, 36 Am. Dec. 723; People v. Imes, 110 Mich. 250, 68 N. W. 157; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Gaines v. Green Pond Iron Mining Co., 32 N. J. Eq. 86; Hill v. Hill, 32 Pa. St. 511; State v. Abbey, 29 Vt. 60, 67 Dec. Am. 754. BHawes v. State, 88 Ala. 37, 7 So. 302; Tucker v. People, 117 111. 88; Squire v. State, 46 Ind. 459; Verholf v. Van Houwenlengen, 21 Iowa, 429; Com. V. Hayden, 163 Mass. 453, 40 N. E. 846, 47 Am. St. Rep. 468, 28 L. R. A. 318; Northfield v. Plymouth, 20 Vt. 582. 10 Com. V. Johnson, 92 Mass. 196; Com. v. Hurley, 80 Mass. 411; Ash- [31] § 53.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. IV. § 51. Testimony of persons officiating. The officiating clergyman or magistrate is a competent wit- ness to the fact of the marriage, to the identity of the parties, and even to his legal capacity to perform the ceremony, and to such other facts that may come within his knowledge in the course of his duty as such officer." § 52. Necessity of proof of marriage. The requirement of the law that a marriage must be proved as the first step in a suit for divorce is based upon the theory that it is necessary to first judicially and legally determine the present status of the parties before any decree can be properly made which will affect their future status. This is intended to preclude any fraud or error in any claim for relief in person or property in any suit for divorce where no legal relationship, through marriage, ever existed. ^^ The validity of a marriage has been held to be established by the decree of a divorce from such marriage. ^^ § 53. Proof of foreign marriage. Foreign marriages may be proved most readily by copies of the record of such marriages properly attested. ^^ The law of the place of marriage must usually be proved as a question of fact, in addition. ^^ When there is evidence of cohabitation, between competent parties with an intention to marry, the court may presume the foreign law to be complied with.^^ ford V. Ins. Co., 80 Mo. App. 638; Moore v. Moore, 102 Tenn. 148, 52 S. W. 778. " Brewer v. State, 59 Ala. 101; Dale v. State, 88 Ga. 552, 15 S. E. 287; Com. V. Hayden, 163 Mass. 453, 40 N. E. 846, 47 Am. St. Rep. 468, 28 L. R. A. 318 and note; People v. Imes, 110 Mich. 250, 68 N. W. 157. 12 Harman v. Harman, 16 lU. 85; Mangue v. Mangue, 1 Mass. 240; Vree- land V. Vreeland, 18 N. J. Eq. 43. 13 Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17. 14 State V. Goodrich, 14 W. Va. 834; 1 Bishop Marriage and Divorce, 475. i5Wottrich V. Freeman, 71 N. Y. 601. "Com. V. Kenney, 120 Mass. 387; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164. [32] CHAP, IV.] PROOF OF MARRIAGE. [§ 54. § 54. Presumptions flowing from xaarriage ceremony. All the presumptions necessary to make a marriage valid attach on proof of a formal ceremony of marriage by a person assuming to act as a minister of the gospel, followed by co- habitation under the belief of the parties that they are law- fully married. And the burden is on those who attack the validity of the marriage to show its invalidity by clear, dis- tinct, positive and satisfactory proof. ^^ 17 Megginson's Estate, 21 Ore. 387, 28 Pac. 388, 14 L. R. A. 540 and note. [33] §56.] THE LAW OF MARRIAGE AND DIVORCE, [CHAP. V. CHAPTER V. NULLITY OF MARRIAGE. 55. Distinction between "divorce" and "nullity." 56. Jurisdiction of nullity suits. 57. Parties to nullity suit. § 58. Delay in bringing suit. 59. Grounds for annulment of marriage. § 55. Distinction between " divorce " and " nullity." Although the term "divorce" is sometimes used to designate a suit for the annulment of a marriage , it is generally conceded that such use is a misnomer. There cannot possibly be a decree of divorce or a change in the legal status where no marriage existed, while a suit for annulment determines what the status of the parties is without changing it. As a general rule nullity suits are abated by the death of one of the parties. The question of alimony and property rights does not enter into nullity suits, except that in some cases alimony ^pendente lite may be allowed.^ § 56. Jurisdiction of nullity suits. Jurisdiction in nullity suits is usually conferred by statute in specific terms, as distinct from that of divorce suits, or in terms giving jurisdiction to both classes of suits, generally, and as inclusive in the general powers of a court of equity. Unless such jurisdiction is expressly conferred, it will not be inferred from a statute giving general jurisdiction to courts,^ It is sometimes held that courts of equity in the exercise of 1 Eichhoff's Case, 101 Cal. 600, 36 Pac. 11 ; Rooney v. Rooney, 54 N. J, Eq. 231, 34 Atl. 682; Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460; Stewart v. Vandervort, 34 W. Va. 524. 2 Ridgely v. Ridgely, 79 Md. 298, 29 Atl. 597, 25 L. R. A. 800 and note; Kelley v. KeUey, 161 Mass. Ill, 36 N. E. 837, 25 L. R. A. 806; Le Barron V. Le Barron, 35 Vt. 365. [34] CHAP, v.] NULLITY OF MARRIAGE. [§ 57. their general jurisdiction may annul marriages for such causes as would be ground for annulling any other void contract, such as fraud, duress, insanity, or similar cause.^ As im- potency renders the marriage voidable only, it has been held that equity will not assume jurisdiction and annul such a marriage on the ground of fraud.'* The domicil of the parties and not the place of marriage determines where the suit for nullity must be brought.^ § 57. Parties to nullity suit. A petition for the annulment of a marriage should be brought by one of the parties and defended by the other party to the marriage. But in case of persons of legal incapacity through insanity, youth, or similar cause, the suit may sometimes be begun and defended by the guardian of such party, either when appointed as guardian ad litem or generally. In some states it is provided by statute that certain public officers or attorneys specially appointed shall appear and represent the interests of the state or of one of the parties." § 58. Delay in bringing suit. The same rule that applies to delay in divorce suits ^ applies to suits for annulment, and where the delay is of such length and character as to cause suspicion of the good faith of the party, unless the same is capable of explanation, the suit will be dismissed. For example, after a wife has lived with her husband for ten years, it is too late to bring a biU for 3 Le Brun v. Le Brun, 55 Md. 496; Maier v. Circuit Judge, 112 Mich. 491, 70 N. W. 1032; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164; Sinclair v. Sinclair, 57 X. J. Eq. 222, 40 Atl. 679; McClurg v. Terry, 21 N. J. Eq. 225; Ward V. Bailey, 118 N. C. 55, 23 S. E. 926. * Anonymous, 24 N. J. Eq. 19. 5 Blumenthal v. Tannenholz, 31 N. J. Eq. 194; Barney v. Cuness, 68 Vt. 51, 33 Atl. 897. « Cowan V. Cowan, 139 Mass. 377, 1 X. E. 152; Gamett v. Gamett, 114 Mass. 379, 19 Am. Rep. 369; Denny v. Denny, 90 Mass. 311. 7 See injra, p. \Zi' [ 35 ] § 59.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. V. annulment on the ground of impotency.* Again, the lapse of twenty-two years after the discovery of the alleged insanity, before filing a bill to avoid the marriage on that ground is a bar to the relief sought.^ In many states there is an express statute of limitations as to such suits, which statute, as a rule is narrowly construed. § 59. Grounds for annulment of marriage. The grounds for annulment of marriage vary in the differ- ent states. In some states the following marriages are void without legal process ; in others, a suit must be instituted : biga- mous marriages; unnatural marriages; marriages of children; marriages of idiots; marriages of msane persons; incestuous marriages; fraudulent marriages; compulsory marriages; mistaken identity; impotency; miscegenation. i° 8 Lorenz v. Lorenz, 93 111. 376. 8 Rawdon v. Rawdon, 28 Ala. 565. 10 See divorce laws of the several states, p. — . [36] CHAP. VI.] DIVORCE IN GENERAL. t§60. CHAPTER VI. DIVORCE IN GENERAL. 60. Legislative divorces. 61. Judicial divorces. 62. Absolute divorce (a vinculo matrimonii) . § 63. Partial divorce (a mensa el thoro) . 64. Legal separations. 6o. Deeds of separation. § 60. Legislative divorces. In early times divorces were granted by the legislature, and may be now, unless the constitution of the state prohibits it. But as a rule they have become obsolete, being looked upon with disfavor and expressly prohibited in nearly all of the states. In those states where they are not prohibited, the legislature can only grant divorces for causes outside of those laid down in the divorce statutes.^ § 61. Judicial divorces. A divorce is a separation of husband and wife by a judicial decree. The bond of marriage which unites a husband and wife can be legally severed only by death or an absolute di- vorce, and the courts can grant divorces only for such causes as are prescribed by statute. Divorces are triangular. Not only are the parties themselves interested, but the public generally is interested in the preservation of the marriage relation, and in some states the statutes prescribe, that in uncontested cases the district attorney or an attorney ap- pointed by the court must defend.^ § 62. Absolute divorce (a vinculo matrhnonii). An absolute divorce {a vinculo matrimonii — from the bond of matrimony), is a full and complete dissolution of the mar- 1 Teft V. Teft, 3 Mich. 67; Richardson v. Wilson, 8 Yerg. (Tenn.) 67. ' See divorce laws of Kentucky, Louisiana, Michigan, Washington. [37] § 64.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. VI. riage tie, abrogating all marital rights and obligations and leaving both parties to all intents and purposes, single persons.' § 63. Partial divorce { a mensa et thoro ). A partial divorce does not dissolve the marriage tie. It is a mere legal separation, a divorce from bed and board only, simply freeing the innocent party from the presence and control of the guilty one until they agree to renew cohabita- tion.^ And if the innocent party is the wife, the court will or- dinarily give her a suitable allowance from the income and estate of her husband. Kent says these qualified divorces are regarded as rather hazardous to the morals of the parties. The English courts have said it is throwing the parties back upon society in the undefined and dangerous characters of a husband without a wife, and a wife without a husband. Such a divorce neither dissolves the marriage tie nor gives either party the right to marry again. ^ It does not even divest the guilty party of his or her interest as husband or wife in the estate of the other.^ It is no defence to a civil or criminal charge of adultery, or an indictment for bigamy. After a divorce from bed and board it is presumed that the marital relations between the parties have ceased, and if children are born they will be considered illegitimate until proof to the contrary appears. They will, however, upon proof of subse- quent cohabitation be held to be legitimate.^ § 64. Legal separations. Legal separations are expressly prohibited in most states, and in others are unknown. It has been a disputed question whether they serve any useful purpose. The weight of argu- 3 Barber v. Root, 10 Mass. 260; Hunt v. Thompson, 61 Mo. 148. * Meehan v. Meehan, 2 Barb. (N. Y.) 377; Nathans v. Nathans, 2 Phila. (Pa.) 393. 5 Ellison V. Mayor, 53 Ala. 558. 6 Clark V. Clark, 6 Watts & S. (Pa.) 85. ^ 2 Bishop, Marriage and Divorce, §§ 726-741. [38] CHAP. VI.] DIVORCE IN GENERAL. [§ 65. ment and authority is against them. To be sure, they may possibly secure a judicial settlement of matrimonial troubles and give an innocent wife protection from a cruel or drunken husband; but the same result could be obtained by divorce, alimony, and a restraining order or injunction, and leave the parties in a much better position for themselves and the com- munity.* A legal separation deprives the parties to the marriage of the rights of cohabitation, and the procreation of legitimate children. As Mr. Justice Swift says, "it places them in a sit- uation where there is an irresistible temptation to the commis- sion of adultery, unless they possess more frigidity, or more virtue than generally falls to the share of human beings."^ Mr, Bishop says, "it is destitute of justice and one of the most corrupting devices ever imposed by serious natures on blind- ness and credulity. It was tolerated only because men be- lieved as a part of their religion that dissolution would be an offence against God, whence the slope was easy towards any compromise with good sense, and as the fruits of compromise we have this ill-begotten monster. It not only punishes the guilty party but it punishes the innocent party as well and should be done away with on the ground that it is against public policy." ^° In South Carolina this is the only kind of a separation granted. ^^ § 65. Deeds of separation. Contracts entered into between husband and wife to live apart, to be divorced, or to relinquish claim to the children, are absolutely void. They have a right to live apart, and frequently enter into agreements and obligations with each 8 Ellison V. Mayor, 53 Ala. 558. 9 Swift's System, Conn. 193. 10 Bishop, Marriage and Divorce, § 29. "S. C. Const. (1895), art. 17. § 3. [39] § 65.] THE LAW OF MARRIAGE AND DIVORCE. [cHAP. VI. Other, modifying their legal relation of husband and wife. By the great weight of authority these contracts have no validity. 12 'pj^g parties may, however, by agreement consent to actions which affect their property rights. The husband may relinquish his right of curtesy or the wife her right of dower; ^^ but a voluntary separation is a complete bar to an absolute divorce. ^^ 12 Joyce V. McAvoy, 31 Cal. 273; Goodwin v. Goodwin, 4 Day (Conn.), 343; Chapman v. Gray, 8 Ga. 341; Phillips v. Meyers, 82 111. 67; Dutton v. Button, 30 Ind. 452; Helms v. Franciscus, 2 Bland. Ch. (Md.) 544. 13 Pinkston v. McLemore, 31 Ala. 308. " Lynch v. Lynch, 33 Md. 328. [40 1 CHAP. VII.] ADULTERY. [§66. CHAPTER VIL ADULTERY. 66. Adultery as a ground for divorce. 67. The act must be voluntary. 68. Particeps criminis must be named if known. 69. Appearance of particeps crim- inis. 70. Circumstantial evidence. 71. Adulterous disposition. 72. Opportunity. 73. Keeping concubine. 74. Evidence of private detectives. 75. Entering house of ill-fame. 76. Venereal disease as evidence. 77. Evidence and letters of para- mour. 78. Confessions must be corrobo- rated. 79. Connivance. 80. Connivance should be pleaded. § 81. Connivance is frequently a good defence. 82. Evidence of prostitutes and pimps. 83. Reputation for chastity. 84. Evidence of familiarities. 85. Adultery by force. 86. Mistake of law. 87. Mistake of fact. 88. Separation by consent no bar to suit for adultery. 89. Knowledge of adultery. 90. Amendment to libel or peti- tion. 91. Effect of divorce for adultery on legitimacy of children. 92. Xon-access. 93. Specifications of adultery. 94. Record of conviction. § 66. Adultery as a ground for divorce. Adultery is the voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband.^ Adultery is a cause for absolute divorce in every state where divorces are granted. In Kentucky, a divorce is not granted for adultery of the husband, but either party is entitled to a divorce, where the other is living in open adultery with another man or woman. ^ 1 Mmer v. People, 58 111. 59; Hood v. State, 56 Ind. 263, 274, 26 Am. Rep. 21; Nichols v. Nichols, 31 Vt. 328, 73 Am. Dec. 352. 2Ky. Gen. Stats. (1903), § 2117. [41] § 68.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. VII. The husband may obtain a divorce from his wife for her adultery or such lewd, lascivious behavior as proves her to be unchaste, without actual proof of an act of adultery,^ In North Carolina, if the parties have separated and one is living in adultery, an absolute divorce is granted, or if the wife commits adultery, the husband is entitled to a divorce."* It has been held that separate acts of adultery without cohabitation do not constitute living in adultery.^ And in North Carolina the plaintiff must prove separation as well as adultery.^ § 67. The act must be voluntary. The act must be voluntary and criminal, for, if the woman is insane at the time or is ravished, she does not commit adul- tery, or if the act is committed under a mistaken belief that the husband or wife is dead, it is no ground for divorce.^ § 68. Particeps criminis must be named if known. In bringing a libel or petition for divorce on the ground of adultery, the name of the particeps criminis should always be inserted when it is known. If unknown to the petitioner, it should be so stated in the libel ; also the time and place where the act was committed, if it is known. ^ But if the libel alleges that the exact time and place of the adultery are unknown, it will be sufficient to aUege that the offence was committed in a 3Ky. Gen. Stats. (1903), § 2117. 4 Long V. Long, 2 Hawks (N. C), 189. 8 Long V. Long, 2 Hawks (N. C), 189. See also Hall v. State, 53 Ala. 463; Carotti v. State, 42 Miss. 334; Richardson v. State, 37 Tex. 346. 8 Morris v. Morris, 75 N. C. 168; Steel v. Steel, 104 N. C. 631. 7Mims V. Mims, 33 Ala. 98; Wray v. Wray, 19 Ala. 522; Broadstreet v. Broadstreet, 7 Mass. 474; People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857; Valleau v. Valleau, 6 Paige (N. Y.), 207; Nichols v. Nichols, 31 Vt. 328, 73 Am. Dec. 352. 8 Holston V. Holston, 23 Ala. 777; Choate v. Choate, 3 Mass. 391; Miller V. Miller, 20 N. J. Eq. 216; Wood v. Wood, 2 Paige (N. Y.), 108; Sanders v. Sanders, 25 Vt. 713. [42] CHAP. VII.] ADULTERY. [§ 69. certain town or city between specified dates. ^ And if the libel states that the particeps criminis is unknown to the libellant, the evidence must show such to be the fact.^° Ac- cordingly where the libel states that the adultery was com- mitted with a certain person, and the evidence shows it to be with another person or an unknown person, it is insufficient." § 69. Appearance of particeps criminis. At common law it is well settled that an alleged paramour or particeps criminis has no legal right to appear or intervene in divorce proceedings, although his or her character or reputa- tion may be directly assailed, but there is a tendency on the part of courts and legislatures to permit an alleged particeps criminis to intervene and defend his or her good name.^^ In Massachusetts, by express statute, the alleged particeps criminis may appear as a matter of right, whether the libel is contested or not.^^ And by rule of court in several states, the co-respond- ent must be notified that he or she may appear and contest if he or she so desires.^^ § 70. Circumstantial evidence. Adultery may be proved by circumstantial evidence, but the evidence must be clear and positive, showing an oppor- tunity as to time and place to commit the act, and a willingness on the part of the defendant. ^^ The circumstances must be such as would lead the guarded discretion of a reasonable and just man to no other conclusion. ^^ As the crime is almost invariably clandestine and committed only when every pre- » Scheffling v. Scheffling, 44 N. J. Eq. 438, 15 Atl. 577; MitcheU v. Mitchell, 61 N. Y. 398. 10 Miller v. Miller, 20 N. J. Eq. 216. 11 Washburn v. Washburn, 5 X. H. 195. 12 Clay V. Clay, 21 Hun (N. Y.), 609. 13 Mass. Rev. Laws, c. 152, § 9. 1* See divorce laws of the several states, p. 233. 15 Pollock V. Pollock, 71 X. Y. 137. 18 Mosser v. Mosser, 29 M&. 313. [43] § 71.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. VII. caution is taken to preclude the possibility of discovery, and as it is very rarely indeed that the parties are surprised in the direct act of adultery, all the circumstances should be care- fully considered." And what would be evidence in one case might not be in another. A preponderance of evidence is all that is required. The inference of adultery should not be drawn from circumstances reasonably reconciled with the presumption of innocence. ^^ Neither should adultery be pre- sumed where the facts and circumstances relied upon may as well be attributed to an innocent as a guilty motive. ^^ Direct proof of adultery is not required. It may be shown by any circumstances that naturally lead the mind to its incurrence by a fair inference as a natural conclusion. ^^^ If the evidence is reasonably consistent with the innocence of the defendant, it should always be interpreted in his favor. ^^ But where it is impossible from all the circumstances to con- strue the evidence with the theory of innocence, a decree will be granted. ^2 § 71. Adulterous disposition. Evidence of adulterous acts committed with a certain person after the filing of the libel is admissible to show the disposition and the relations between the parties at the time the acfultery complained of was committed. ^^ Where adultery is alleged "Daily v. Daily, 64 111. 329; Com. v. Bowers, 121 Mass. 45; Com. v. Gray, 129 Mass. 474. 18 Mosser v. Mosser, 29 Ala. 313; Jeter v. Jeter, 36 Ala. 391. 19 Allen V. Allen, 101 N. Y. 658, 5 N. E. 341. 20 Bast V. Bast, 82 111. 584. 21 Jeter v. Jeter, 36 Ala. 391; Mosser v. Mosser, 29 Ala. 313; Powell v. Powell, 80 Ala. 595; State v. Stiles, 62 111. App. 408; Aitchison v. Aitchi- son, 99 Iowa, 93; Burke v. Burke, 44 Kan. 307, 21 Am. St. Rep. 283; Hurtzig V. Hurtzig, 44 N. J. Eq. 329; Steffens v. Steffens, 16 Daly (N. Y.), 363; Herberger v. Herberger, 16 Ore. 327, 14 Pac. 70. 22 Jeter v. Jeter, 36 Ala. 391 ; Names v. Names, 67 Iowa, 383, 25 N. W. 671 . 23 Thayer v. Thayer, 101 Mass. HI, 100 Am. Dec. 110; Com. v. Merriam, 31 Mass. 518, 25 Am. Dec. 420. [44] CHAP. VII.] ADULTERY. [§72. by the libellee with several persons, evidence of sexual inter- course between the libellee and one of the persons before the marriage is held admissible, as determining the character of the alleged adulterous acts occurring after the marriage. ^^ And upon the trial of an indictment for adultery, evidence of other acts of adultery committed by the same parties, near the time charged, though in another county, is admissible to sup- port ^^ the indictment. § 72. Opportunity. To grant a divorce for adultery direct evidence is not re- quired; but there must be shown the opportunity for the act and the will to commit it.^^ Mere inprudence, indiscretion, or folly, is not conclusive evidence. Mere evidence that there was an opportunity for illicit intercourse is held to be insuffi- cient. There must be some accompanying circumstance which fairly induces the belief that the residence of the parties under the same roof was not for a proper purpose.^^ § 73. Keeping concubine. Living in open adultery or keeping a concubine, within the meaning of a statute granting a divorce for such cause, may consist in being kept by her in her own house.^* § 74. Evidence of private detectives. One who is hired for the purpose of watching and detecting in wrong a husband or wife, and whose services are to extend to the giving of evidence, based upon his work as such de- tective, is looked upon with some degree of suspicion as a witness, although his testimony is to have the same considera- 24 Brooks V. Brooks, 145 Mass. 574, 14 N. E. 777, 1 Am. St. Rep. 485. 25 Com. V. Nichols, 114 Mass. 285, 19 Am. Rep. 346. 2« Berckmans v. Berckmans, 16 N. J. Eq. 122. 27 Pollock V. PoUock, 71 N. Y. 137. 28 Adams v. Hurst, 9 La. 243. [45] § 76.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. VII. tion as that of any other witness, if nothing appears to im- peach his credibility.^* § 75. Entering house of ill-fame. Where it has been proved that the defendant entered a house of ill fame, it has been held sufficient for granting a decree.^" But such evidence is not always conclusive and may be rebutted by a satisfactory explanation.^^ § 76. Venereal disease as evidence. Where one has contracted a venereal disease after marriage, it is only prima facie proof of adultery.^^ But it raises a very strong presumption of guilt and the court will consider any circumstance tending to affirm this presumption.^^ Where the disease has been contracted long after marriage, adultery may be inferred.^'* But where the disease presents itself shortly after marriage, adultery will not be inferred, as it may be due to secondary syphilis, or it may have been contracted before marriage.^^ And where one has gonorrhoea, it is not necessarily due to adultery, it may be due to causes consistent with the innocence of both husband and wife.^^ The hus- band's adultery will not be inferred from the presence of syphilis in the wife, because she may have contracted the disease by her own adultery, by contagion, or by accident. Either of these methods is consistent with his innocence." 29 Blake v. Blake, 70 111. 622; Com. v. Ingersoll, 145 Mass. 231, 13 N. E. 613; Throckmorton v. Throckmorton, 86 Va. 768, 11 S. E. 289. 30 Daily v. Daily, 64 111. 329. 31 Latham v. Latham, 30 Gratt. (Va.) 307. 32 Johnson v. Johnson, 14 Wend. (N. Y.) 637. 33 Mount V. Mount, 15 N. J. Eq. 162; Cook v. Cook, 32 N. J. Eq. 475; Ferguson v. Ferguson, 1 Barb. Ch. (N. Y.) 604. 34 North V. North, 5 Mass. 320. 35 Mount V. Mount, 15 N. J. Eq. 162. 38 Holthoefer v. Holthoefer, 47 Mich. 260, 11 N. W. 150. But see Cook V. Cook, 32 N. J. Eq. 475. 3' Homburger v. Homburger, 46 How. Pr. (N. Y.) 346. [46] CHAP. VII.] ADULTERY. [§77. Neither is it established that the husband had a venereal disease by testimony that the husband had stains and spots on his linen, when the witness is unable to identify the linen as that worn by the husband. ^^ Neither will a venereal disease be inferred, where the only evidence is that the hus- band had in his possession medicines supposed by physicians to be used in treating such disease. But where the husband was suffering from a venereal disease at the time of the mar- riage, and the fact was unknown to the wife at the time, but was discovered by her soon after, and she at once left him, having never cohabited with him, the court held that this was a good ground for annulling the marriage on the ground of fraud. ^^ Proof of the existence of a venereal disease after marriage, unexplained, is proof of adultery.'*" § 77. Evidence and letters of paramour. The evidence of a paramour, or particeps criminis, if ad- missible, is to be very carefully scrutinized, as it is of the weakest kind and usually should be corroborated.^^ As a witness, his own testimony may be used to discredit him."*^ A clandestine correspondence conveying strong terms of at- tachment may show a criminal desire. ^^ The evidence of an alleged paramour, being particeps criminis, is weak but is not rejected.'*^ A divorce should never be granted upon the un- corroborated testimony of a particeps criminis. '^^ 38 James v. James, 29 Xeb. 533, 45 X. W. 777. 39 Smith V. Smith, 171 Mass. 404, 50 X. E. 933, 68 Am. St. Rep. 440, 41 L. R. A. 800; Crane v. Crane, 62 X. J. Eq. 21, 49 Atl. 734; Ryder v. Ryder, 66 Vt. 158, 28 Atl. 1029, 44 Am. St. Rep. 833. 40 Jones V. Jones, 18 X. J. Eq. 33, 90 Am. Dec. 607. 41 Payne v. Payne, 42 Ark. 235; Wahle r. Wahle, 71 111. 510; Evans v. Evans, 93 Ky. 510, 20 S. W. 605; Simons r. Simons, 13 Tex. 468. 42 Lewis V. Lewis, 9 Ind. 105; Herrick r. Herrick, 31 Mich. 298. 43 Black V. Black, 30 X. J. Eq. 228. 44 Berckmans v. Berckmans, 16 X'. J. Eq. 122. « Clare v. Clare, 19 X. J. Eq. 37. [47] § so.] THE LAW OF MAERIAGE AND DIVORCE. [CHAP. VII. § 78. Confessions must be corroborated. The confessions of the party charged, uncorroborated by other evidence, are not sufficient. But the libellee's confes- sions of adultery are sufficient evidence to authorize a decree of divorce, if the circumstances proved by other evidence show that there is no collusion. ^^ In Alabama, no confession will be accepted as evidence. In Arizona, confessions and declarations of parties must be corroborated. In Maine, the confessions of the guilty party, if there is no evidence of collusion, may be received in proof of adultery. ^^ In Arkansas, when the charge is adultery, the courts are reluctant to grant a divorce upon the uncorrobo- rated testimony of a particeps criminis^^ § 79. Connivance. Connivance is the consent of the complainant to the re- spondent's commission of the offence complained of. This consent may be either express or implied, and it is a bar to divorce, even for adultery committed with the consent or connivance of the other. This defence is seldom used and is in the nature of an estoppel of the plaintiff.^^ It does not, however, act as an estoppel, where the acts connived at oc- curred at a different time and after the acts alleged as adul- terous.^*^ Connivance is no defence to subsequent acts of adultery. ^^ § 80. Connivance should be pleaded. In setting up the defence of connivance it must be pleaded specially. It does not of itself admit adultery, and can be consistently pleaded with a denial of guilt.^^ 46 Billings V. Billings, 28 Mass. 461. <7 Vance v. Vance, 8 Me. 132. 48 Payne v. Payne, 42 Ark. 235. « Hedden v. Hedden, 21 N. J. Eq. 61. so Morrison v. Morrison, 142 Mass. 361, 8 N. E. 59, 65 Am. Rep. 688. 51 Viertel v. Viertel, 99 Mo. App. 710, 75 S. W. 187. 52 Moorsom v. Moorsom, 3 Hog. Ecc. 87; Rogers v. Rogers, 3 Hog. Ecc. 57. [48] CHAP. VII.] ADULTERY. [§81. A woman who authorizes her attorney to employ detectives to watch her husband, whom she suspects of infidehty, for the purpose of obtaining evidence which will enable her to procure a divorce, and who goes with them at a time ap- pointed to surprise him iii a compromising position with a lewd woman, employed by them for that purpose, may be found to have known that the woman's movements were governed by them, so as to show connivance on her part which will bar her right to divorce, and the right to a divorce for adultery will be barred, if plaintiff consents to the employ- ment of a person to allure defendant into the offence for which the action is brought. The courts will use their discretion to defeat any and all attempts to use the forms of the law of divorce to minister to the caprices of the fickle-minded or to the revenger of the disappomted, or vindictive, or to the passions of the incontinent.^^ § 81. Connivance is frequently a good defence. Thus, suppose a husband connives at the commission of adultery by his wife ; or unduly and improperly exposes her to temptation; or suppose that his cruelty is so gross and his neglect of her so wanton as to drive her, in desperation, to the commission of adultery, she will be excused. He cannot suc- cessfully prosecute an action for divorce against her.^^ § 82. Evidence of prostitutes and pimps. The testimony of prostitutes is looked upon with more suspicion, if anything, than that of any other particeps criminis, and corroboration is necessary. ^^ A prostitute or a person filling the role of a "pimp" is not thereby entirely disqualified, 53 Dennis v. Dennis, 68 Conn. 186, 36 Atl. 34, 57 Am. St. Rep. 95, 34 L. R. A. 449 and note. 54 Pierce v. Pierce, 20 Mass. 299, 15 Am. Deo. 210; Myers v. Myers, 41 Barb. (N. Y.) 114. 65 Tumey v. Tumey, 4 Edw. Ch. (N. Y.) 466. 4 [49] § 85.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. VII. but the testimony of such a person is not entitled to the weight and consideration that is required by the courts.^^ § 83. Reputation for chastity. Where it was shown that the defendant frequently left her home in the absence of her husband, and would be absent several days at a time, and that her reputation for chastity was bad, the court held that this was not sufficient to estab- lish the charge of adultery.^'' § 84. Evidence of familiarities. Evidence of familiarities on the part of the defendant and the person with whom the adultery is alleged to have been committed is admissible to prove the adultery, but it must be evidence showing more than- mere association and friendly intercourse to support the allegation. The entire circum- stances surrounding the alleged acts of familiarity must be taken into consideration in determining their character.^^ § 85. Adultery by force. A man is guilty of adultery, even though the offence was committed with a woman who was stupefied with liquor at the time.^^ And, where the offence was committed without the consent of the woman, the man may be convicted of adultery.^" Emission is not necessary to make the act of adultery com- plete; penetration is sufficient. ^^ What constitutes carnal knowledge of a woman must be the same in prosecutions for 58 Wagoner v. Wagoner (Md.), 10 Atl. 221; Whitenack v. Whitenack, 36 N. J. Eq. 474; Clare v. Clare, 19 N. J. Eq. 37; Anonymous, 17 Abb. Pr. (N. Y.) 48. 57 Thomas v. Thomas, 51 111. 162. 58 Peavey v. Peavey, 76 Iowa, 443, 41 N. W. 67; Bishop v. Bishop, 17 Mich. 211 ; Conger v. Conger, 82 N. Y. 603; Pollock v. Pollock, 71 N. Y. 137. 59 Com. V. Bakeman, 131 Mass. 577, 41 Am. Rep. 248. 60 State V. Sanders, 30 Iowa, 582; State v. Henderson, 84 Iowa, 161, 50 N. W. 758. 61 Com. V. Hussey, 157 Mass. 415, 32 N. E. 362. [ r)0 ] CHAP. VII.] ADULTERY. [§ 86. adultery as in prosecutions for rape. Penetration is all that is required to complete the crime. ^^ § 86. Mistake of law. A mistake of law is no defence to a charge of adultery.^' And where one has intercourse after a second marriage, when the divorce from the prior marriage was illegal, it is adultery, and a sufficient ground for a divorce from the prior marriage, though there was a hona fide belief that the divorce was valid.^"* § 87. Mistake of fact. Where a woman has connection with a man under the honest belief that he is her husband, or where she has married a man with whom she has intercourse under the belief that her hus- band is dead, she is not guilty of adultery, for there is a mis- take of fact as to her standing and rights. ^^ But if the inter- course continues under the second marriage after knowledge that the first spouse is living, she is guilty.^^ § 88. Separation by consent no bar to suit for adultery, A divorce may be decreed for adultery though a voluntary separation exists between the parties." § 89. Knowledge of adultery. Complainant may be allowed to prove the adultery alleged, although he knew it some time, and the defendant may prove such scienter as a defence. ^^ 82WaUer v. State, 40 Ala. 325; State v. Shields, 45 Conn. 256; Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747; Com. v. Squires, 97 Mass. 59; Comstock V. Com., 50 Mass. 205; People v. Crowley, 102 X. Y. 234, 6 X. E. 384; Osgood V. State, 64 Wis. 472, 25 X. W. 529. 63 Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244. M Simonds v. Simonds, 103 Mass. 572, 4 Am. Rep. 576; Leith v. Leith, 39 N. H. 20. 65 Valleau v. Valleau, 6 Paige (X. Y.), 207. 66 Mathewson v. Mathewson, 18 R. I. 456, 28 Atl. 801, 49 Am. St. Rep. 782. 67 Anderson v. Anderson, 1 Edw. Ch. (X. Y.) 380. 68 McCafferty v. McCafferty, 8 Blackf. (Ind.) 218. [51] § 92.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. VII. § 90. Amendment to libel or petition. The bill may be amended in accordance with the facts by setting out the name of the particeps criminis or by stating that the name is unknown.^^ If the name of the particeps criminis is unknown, the offence must be identified by other particulars, such as the description of the unknown person or designation of time, place, and circumstances as will enable the defendant and the court to distinguish the particular of- fence charged in the libel or petition. And where the libel alleges the act of adultery with a certain person on a certain day, the court may allow the libel to be amended, changing the allegation to another person on another day.^° In bringing a libel for divorce on the ground of adultery, it is always better, after naming the particeps criminis, to insert "or with some other person or persons to your libellant unknown." ^^ § 91. Effect of divorce for adultery on legitimacy of children. In order to prove the issue of a married woman illegitimate, there must be proof of non-access of the husband beyond a reasonable doubt.'^^ § 92. Non-access. The non-access of the husband must be shown to be of such duration that the husband could not have been the father of the child, or, in other words, it must be shown that the hus- band could not have had sexual intercourse with the wife during the period within which, in the usual course of nature, it must have been begotten.'^ As the law presumes in favor 89 Church V. Church, 3 Mass. 157; Choate v. Choate, 3 Mass. 391; Wood V. Wood, 2 Paige (N. Y.), 108; Germond v. Germond, 6 Johns. Ch. (N. Y.) 347; Sanders v. Sanders, 25 Vt. 713. 70 Tourtelot v. Tourtelot, 4 Mass. 506. 71 See Form No. 9, p. 353. 72 Hemmenway v. Towner, 83 Mass. 209; Phillips v. Allen, 84 Mass. 453; Sullivan v. Kelley, 85 Mass. 148; Egbert v. Greenwait, 44 Mich. 245, 6 N. W. 645; Van Aemam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375. 73 Phillips V. Allen, 84 Mass. 453. [52 1 CHAP. VII.] ADULTERY. [§ 93. of legitimacy and that the husband had access to the wife, this presumption must be clearly overcome by evidence that he could not have possibly had intercourse with her, and no admissions or statements of either that while living together they did not, in fact, have intercourse will be received to alter the presumption.^^ § 93. Specifications of adultery. In bringing a libel or petition for divorce on the ground of adultery, the wording of the statute should always be followed and the name of the particeps criminis, if known, alleged ;^^ also the time and place of the alleged crime ; and if the crime is alleged to have been committed with a party unknown or at a place unknown, the libellant will be obliged to prove such to be the fact. A libel for divorce must be signed by the libellant.'^^ § 94. Record of conviction. The record of conviction of respondent in a criminal pro- ceeding is competent evidence and is sufficient proof of mar- riage, also of adultery .'^^ ">* Hemmenway v. Towner, 83 Mass. 209; Clapp v. Clapp, 97 Mass. 531. 75 Church V. Church, 3 Mass. 157. 78Willard v. Willard, 4 Mass. 506; Winslow v. Winslow, 7 Mass. 96; Gould V. Gould, 42 Mass. 382. 77 Anderson v. Anderson, 4 Me. 100; Randall v. Randall, 4 Me, 326. [53] §96.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. VIII. CHAPTER VIII. BIGAMY. § 95. General rule. § 100. Legitimacy of children. 96. Prior marriage must have 101. Remarriage before decree is been valid. made absolute. 97. Unheard of for years. 102. Evidence of bigamy. 98. Defence of unheard of ab- 103. Proof of marriage. sence for statutory period. 99. Meaning of the term "co- habitation." § 95. General rule. Under no circumstances is a second marriage valid, where the first has not been dissolved by death or by a valid divorce, and the dissolution taken place before the celebration of the second. Bigamy or polygamy is a statutory and not a common- law crime. It is committed where one, being legally married, marries another person during the life of his or her wife or husband.^ Stephen defines the word "marries" as meaning going through a form of marriage which the law of the place where such form is used recognizes as binding, whether the parties are, by that law* competent to contract marriage or not, and although by their fraud the form employed may, apart from the bigamy, have been insufficient to constitute a binding marriage.^ § 96. Prior marriage must have been valid. If the prior marriage was invalid, no indictment for bigamy or polygamy can be sustained.^ Bigamy or polygamy is not 1 Clark Criminal Law (2d ed.), § 116. 2 Stephen Dig. Criminal Law, § 257. 3 Beggs V. State, 55 Ala. 108; Cooley v. State, 55 Ala. 162; People v. Beevers, 99 Cal. 286, 33 Pac. 844; Davis v. Com., 13 Bush. (Ky.) 318; Hull V. State, 7 Tex. App. 593. [54] CH.\P. VIII.] BIGAMY. [§ 97. committed by one of the parties, who marries after a decree of divorce, or when the prior marriage has been judicially declared void.^ But divorce as a defence to a prosecution for bigamy must have been obtained before the second marriage was contracted.^ And if the decree of divorce was granted by a court which had no jurisdiction, or the decree was obtained by fraud it will be no defence to a criminal prosecution for bigamy or polygamy.^ § 97. Unheard of for years. Most states have passed statutes to the effect that if a hus- band or wife absent himself or herself for a period of years, and is unheard of during that time, and the other party marry, not knowing him or her to be living or dead at the time, such party shall not be criminally liable for bigamy. And in all places over which the United States has exclusive jurisdiction the length of time is five years.' § 98. Defence of unheard of absence for statutory period. If the defendant sets up the defence of unheard of absence for the length of time as, by statute, would relieve the accused party of a criminal offence, the burden of proof is on the state to show that the former husband or wife was living at the time of the marriage.* § 99. Meaning of the term "cohabitation." The word "cohabitation"' as it is used in the statute means the dwelling or living together of a man and wife. It does not necessarily mean to live in the same house, for this word 4 People V. Hovey, 5 Barb. (X. Y.) 117; State v. Norman, 2 Dev. L. (N. C.) 222. 5 Baker v. People, 2 Hill (X. Y.), 325. e Thompson v. State, 28 Ala. 12; People v. Baker, 76 X. Y. 78, 32 Am. Rep. 274; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507. ^ U. S. Rev. Stat. § 5352 (U. S. Comp. Stat. [1901], p. 3633). See also codes and statutes of the several states. 8 Hull V. State, 7 Tex. App. 593; Gorman v. State, 23 Tex. 646. [55] § 102.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP, VIII. is not used in the definition. The man and woman may dwell or live together in an open field, or in a railroad train, or in the same house. They are to be conveniently situated as to each other, and to act in regard to each other in such a manner as to lead the world to believe that the bigamous relationship exists between them. In these polygamic relations there never is, and cannot be, that intimate association and habitual at- tention given by the man to the various women, as exists between a husband and his wife in the monogamic state. Consequently, in the very nature of things, the proof of co- habitation cannot be made as clear as in the case of a mono- gamic marriage, simply because the facts of which proof is to be made do not as abundantly exist.^ § 100. Legitimacy of children. A decree for divorce does not affect the legitimacy of chil- dren.i" § 101. Remarriage before decree is made absolute. Marriage and cohabitation before a decree is granted is adultery, although entered into in good faith and relying on statements of counsel that a decree had been entered granting a divorce. ^^ § 102. Evidence of bigamy. On the trial of an indictment for polygamy, it appeared that the defendant, a Protestant, had been married in Ireland to a Roman Catholic, by a Roman Catholic priest; that he had cohabited with the woman there as his wife ; and that he had afterwards, while his wife was living, been married to another woman in the state where the indictment was brought. It, was held, that ''the law of Ireland, being a foreign law, is a » United States v. Snow, 4 Utah, 295, 9 Pac. 686. 10 Glass V. Glass, 114 Mass. 563. " Gordon v. Gordon, 141 111. 160, 30 N. E. 446, 33 Am. St. Rep. 294, 21 L. R. A. 387. See also 21 L. R. A. 97. [56] CHAP. VIII.] BIGAMY. [§ 103. matter of fact of which our courts have no judicial knowledge without proof. A marriage solemnized by a priest, and under which the parties have cohabited as husband and wife, is prima facie a valid marriage everywhere." ^^ § 103. Proof of marriage. The marriage may be proved by witnesses who were present, by the magistrate or clergyman who officiated, ^^ or by ad- missions of the defendant. ^"^ And in states where the law re- quires that records of marriages shall be kept, a record prop- erly authenticated is competent to prove the marriage.^^ Even circumstantial evidence has been held good.*® 12 Com. V. Kemiey, 120 Mass. 387. 13 Dale V. State, 88 Ga. 552; People v. Perriman, 72 Mich. 184, 40 N. W. 425; State v. Clark, 54 X. H. 456; State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754. "Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; State v. Libby, 44 Me. 469, 69 Am. Dec. 115; Crane v. State, 94 Tenn. 86. 15 Tucker v. People, 117 111. 88; Faustre v. Com., 92 Ky. 34. "Com. V. Hayden, 163 Mass. 453; People v. Crawford, 62 Hun (N. Y.), 160. [57] § 104.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. IX. CHAPTER IX. CRUELTY. 104. General rule as to degree of cruelty. 105. Actual personal violence. 106. Reasonable apprehension of violence. 107. Treatment endangering health. 108. Treatment endangering life. 109. Communicating disease. 110. Denial of sexual intercourse. 111. Abuse of sexual intercourse. 112. Mental suffering. 113. False accusations and threats. 114. Masturbation not cruelty. 115. Drunkenness no defence to cruelty. 116. Mutual cruelty or family jars. § 104. General rule as to degree of cruelty. Cruelty as a cause for divorce has been the subject of con- siderable discussion and many decisions, from which it is difficult to extract a clear and comprehensive definition. As a general rule, however, in order to make cruelty a ground for divorce, it must be such conduct toward the plaintiff by the defendant as will cause him or her injury by actual personal violence, or the reasonable apprehension of it, or such course of treatment as endangers his or her life or health, and renders cohabitation unsafe.^ Cruelty is a ground for absolute di- vorce in every state where divorces are granted except New York. In Maryland and Virginia it is left to the discretion of the court. The degree of cruelty to justify a divorce depends upon the wording of the local statute. In some states the cruelty must 1 Morris v. Morris, 14 Cal. 76, 73 Am. Dec. 615 and note; Odom v.Odom, 36 Ga. 286; Cole v. Cole, 23 Iowa, 433; Hawkins v. Hawkins, 65 Md. 104; Ford V. Ford, 104 Mass. 198; Peabody v. Peabody, 104 Mass. 195; Cowles v. Cowles, 112 Mass. 298; Bailey v. Bailey, 97 Mass. 373; Jones v. Jones, 66 Pa. St. 494. [58] CHAP. IX.] CRUELTT. [§ 105. consist of actual personal violence of such severity as to en- danger life. In others, no physical violence is necessary. Accusing the wife of unchastity, or profane, insulting, and abusive language, if habitually used, is held sufficient.^ § 105. Actual personal violence. The most flagrant cause in these cases is actual personal violence, and in this connection it is held that proof of a single act of violence does not constitute sufficient proof of cruelty, unless there is apprehension by the plaintiff of a repetition of such acts.^ Evidence of slight acts of violence such as would cause no fear or apprehension is not sufficient.'* It is not nec- essary, though, that the acts should be repeated for any number of times or should continue for any length of time, if they cause the plaintiff to have fear for personal safety and to anticipate bodily harm.^ § 106. Reasonable apprehension of violence. Mere displays of temper or passion, however irritating, are not grounds for divorce, nor even threats of bodily harm, unless there is an apprehension on the part of the plaintiff of bodily harm.^ This must be a reasonable apprehension and not one caused by extreme sensitiveness or nervousness, al- though the modern tendency is to take into consideration the training and environment of the complainant in determining 2Sylvis V. Sylvis, 11 Colo. 319; Carpenter v. Carpenter, 30 Kan. 712, 46 Am. Rep. 108; Holyoke v. Holyoke, 78 Me. 404; Walsh v. Walsh, 61 Mich. 554, 28 N. W. 718; Palmer v. Palmer, 45 Mich. 150, 7 X. W. 760, 40 Am. Rep. 461; Kelly v. KeUy, 18 Xev. 49, 51 Am. Rep. 732; Crow. v. Crow, 29 Ore. 392, 45 Pac. 761; Smith v. Smith, 8 Ore. 100. 3 Ford V. Ford, 104 Mass. 198; Reed v. Reed, 4 Xev. 395. * Henderson v. Henderson, 88 111. 248; Coursey v. Coursey, 60 111. 186; Hitchins v. Hitchins, 41 111. App. 82; Lauber v. Mart, 15 La. Ann. 593; Armant v. Her Husband, 4 La. Ann. 137; Cook v. Cook, 11 X. J. Eq. 195. 5 Lauber v. Mart, 15 La. Ann. 593. 6 Fritz V. Fritz, 138 111. 436, 32 Am. St. Rep. 156; Peavey v. Peavey,76 Iowa, 443; Whaley v. Whaley, 68 Iowa, 647; Hewitt v. Hewitt, 37 Atl. 1011. [59] § 108.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. IX. what is a reasonable apprehension.'^ And this apprehension may be created by the threatening statements of the defend- ant.* § 107. Treatment endangering health. As to what constitutes treatment endangering health, there is a broader, modern doctrine being established. Aside from the acts of personal violence and bodily injury, there is a tendency to hold that there may be such conduct on the part of the defendant, which, while it does not come under those heads, from its general effect on the mental and nervous temperament of the victim, produces a consequent injury to the health and tends to shorten life, and is therefore considered a species of cruelty. The mental and physical condition of the complainant will be considered, and conduct which might not be cruelty to a well man may readily be cruelty to a sick woman.^ In determining these cases there is also a tendency to take into consideration the station in life, habits, training and refinement of the parties, as what might be cruelty to a person of refinement would not be to one of grosser sensi- bilities.i'' § 108. Treatment endangering life. Such severe and violent treatment as would endanger the life of the complainant is clearly ground for divorce under the statutes, whatever the terms used therein are. Actual at- 7Smedlev v. Smedley, 30 Ala. 714; Densmore v. Densmore, 6 Mackey (D. C), 544; Donald v. Donald, 21 Fla. 571; Ford v. Ford, 104 Mass. 198. 8 Bailey v. Bailey, 97 Mass. 373; Cook v. Cook, 11 N. J. Eq. 195. 8 Rice V. Rice, 6 Ind. 100. 10 David v. David, 27 Ala. 222; Sylvis v. Sylvis, 11 Colo. 319, 17 Pac. 912; Fizette v. Fizette, 146 111. 328, 34 N. E. 799; Wheeler v. Wheeler, 53 Iowa, 511, 5 N. W. 689, 36 Am. Rep. 240; Cole v. Cole, 23 Iowa, 433; Carruthers V. Carruthers, 13 Iowa, 266; Holyoke v. Holyoke, 78 Me. 404, 6 Atl. 827 Bailey v. Bailey, 97 Mass. 373; Kline v. Kline, 50 Mich. 438, 15 N. W. 541 McClung V. McClung, 40 Mich. 493; Clinton v. Clinton, 60 Mo. App. 296 Cheatham v. Cheatham, 10 Mo. 296; Lutz v. Lutz, 9 N. Y. Supp. 858 Morehouse v. Morehouse, 70 Conn. 420, 39 Atl. 516. [60] CHAP. IX.] CRUELTY. [§ 109. tempts to take the life of complainant, or such vicious acts as would maim or cripple the victim are clearly within this class. ^^ Under various statutes and in connection with other acts and conduct, the following have been held to be acts endangering life, or causing apprehension that life was in danger: striking with weapons, choking, kicking, hair-pulling, soaking with croton oil, drenching with water, whipping, spitting in the face, and even harsh language. ^^ § 109. Communicating disease. Under the theory that acts which tend to the injury of the health of the complainant are expressions of cruelty or cruel treatment, the communicating of a disease, whether the same be venereal, infectious, or " any loathsome " disease, is cruelty." It must appear that the wife contracted the disease from her husband, as it is not enough that she cohabited with him and did not commit adultery." Where the defendant had con- tracted and communicated to his wife a form of venereal itch, the court held that the charge of wilful communication is proved, and is an act of cruelty. ^^ § 110. Denial of sexual intercourse. It seems that a denial of sexual intercourse, of itself, even when persisted in for a long space of time will not be considered ground for divorce, unless it clearly appears to result in an 11 Rie V. Rie, 34 Ark. 37; Wand v. Wand, 14 Cal. 512; Knight v. Knight; 31 Iowa, 451; Peavey v. Peavey, 76 Iowa, 443, 41 N. W. 67; Dillon v. Dillon, 32 La. Ann. 643; Jones v. Jones, 66 Pa. St. 494; Harvey v. Harvey, 7 Atl. 871. 12 Moyler v. Moyler, 11 Ala. 620; Sharp v. Sharp, 116 lU. 509, 6 N. E. 15; Wessels v. Wessels, 28 111. App. 253; Mercer v. Mercer, 114 Ind. 5.58, 17 N. E. 182; Schichtl v. Schichtl, 88 Iowa, 210, 55 X. W. 309; Wachholz v. Wachholz, 75 Wis. 377, 44 N. W. 506; Harvey v. Harvey, (N. J.) 7 Atl. 871. "Morehouse v. Morehouse, 70 Conn. 427, 39 Atl. 516; Holthoefer v. Holthoefer, 47 Mich. 260, 11 X. W. 150; Canfield v. Canfield, 34 Mich. 519; Cook V. Cook, 32 X. J. Eq. 475; Leach v. Leach, (Me.) 8 Atl. 349. "Holthoefer v. Holthoefer, 47 Mich. 260, 11 X. W. 150; Cook v. Cook, 32 X. J. Eq. 475. 15 Chesnutt v. Chesnutt, 1 Spinks, 196. [61] § 112.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. IX. injury to the health of the complaining party. ^^ But in some states a persistent denial of sexual intercourse is deemed de- sertion, as in California. In most states, however, it is not desertion.^^ Neither will a denial of sexual intercourse justify the aggrieved party in leaving the other. ^* § 111. Abuse of sexual intercourse. It is a fundamental principle governing the marriage rela- tion, that one of the reasons for the existence of marriage is the necessity for the proper regulation of the natural, sexual desires, and any conduct on the part of a husband or wife, which shall interfere with, or prevent such proper sexual rela- tion is reprehensible, and, generally, a ground for divorce, either alone, or as forming the basis for a charge of cruelty, or cruel treatment such as would endanger health — a cause for divorce becoming of wider application and construction of the law under modern decisions. This abuse of the sexual relation may be an excessive and abusive indulgence by the husband, where the intercourse is of such a nature or quantity as to injure the health of the wife.^'' But where there is no injury to health or reason for fear of such injury, such excesses will not constitute cause for divorce. -° §112. Mental suffering. The degree of mental suffering required to be shown in these cases produced by cruelty varies with the decisions on the "Steele v. Steele, 1 MacArthur (D. C), 505; Stewart v. Stewart, 78 Me. 548, 7 Atl. 473, 57 Am. Rep. 822; Cowles v. Cowles, 112 Mass. 298; Burton V. Burton, 52 N. J. Eq. 215, 27 Atl. 825; Reid v. Reid, 21 N. J. Eq. 331. "Southwick V. Southwick, 97 Mass. 327, 93 Am. Dec. 95; Watson v. Watson, 52 N. J. Eq. 349, 28 Atl. 467. 18 Reid V. Reid, 21 N. J. Eq. 331. 19 Mayhew v. Mayhew, 61 Conn. 233, 23 Atl. 966, 29 Am. St. Rep. 195; Grant v. Grant, 53 Minn. 181, 54 N. W. 1059; Melvin v. Melvin, .58 N. H. 569, 42 Am. Rep. 605; English v. English, 27 N. J. Eq. 71. 20 Mayhew v. Mayhew, 61 Conn. 234, 23 Atl. 966, 29 Am. St. Rep. 195; Shaw V. Shaw, 17 Conn. 189; Youngs v. Youngs, 33 111.. App. 223. [62 J CHAP. IX.] CRUELTY. [§ 112. different forms of the statutes. It is generally well settled, though, that such mental suffering as wQl impair the health as a matter of fact, if shown by the evidence in the particular case as due to the cruelty of the defendant, will be sufficient. ^^ Mental suffering may be, and ofttimes is, far greater than physical, and the tendency of the courts at the present time is to regard imcalled for torture, nagging, and false accusa- tions, where wantonly inflicted, if sufficient in degree to injure health or endanger reason, as cruelty and a ground for divorce. In California, Utah and North Dakota it is a direct cause for divorce, and in many of the states conduct making life un- bearable and causing great mental suffering is sufficient in itself.^' But in Connecticut the courts hold that language calculated to wound the feelings is insufficient, the degree of cruelty required must be intolerable in fact.^^ Husband permitting lewd conduct of daughters in the home is cruelty to the wifc^"* So the husband's attempt to commit rape and the public disgrace therefrom will justify the wife in divorce, where the wife's health is injured thereby. ^^ Extreme cruelty is the infliction of grevious bodUy injury or grevious mental suffering by one party to the marriage upon the other. The tendency of modern decisions, reflecting the advanced civilization of the present age, is to view mar- riage from a different standpoint than as a mere physical relation. It is now more wisely regarded as a union affecting the mental and spiritual life of the parties to it, a relation designed to bring them the comfort and felicities of home life, and between whom, in order to fulfil such design, there should 21 Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122, 46 Am. Rep. 108, Hart V. Hart, 68 X. H. 478, 39 Atl. 430. 22 Moyler V. Moyler, 11 Ala. 620; Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, 16 L. R. A. 660 and note ; Graft v. Graft, 76 Ind. 136; Palmer v. Palmer, 45 Mich. 150, 7 N. W. 760, 40 Am. Rep. 461. 23 Shaw V. Shaw, 17 Conn. 189. 24 Davis V. Davis, 86 Ky. 32, 4 S. W. 822. 25 Fleming v. Fleming, 95 Cal. 430, 30 Pac. 566, 29 Am. St. Rep. 124. [63] § 114.] THE LAW OF MARRIAGE AND DIVORCE. [cHAP. IX. exist mutual sentiments of love and respect. "It was formerly thought that to constitute extreme cruelty, such as would authorize the granting of a divorce, physical violence is nec- essary; but the modern and better considered cases have re- pudiated this doctrine as taking too low and sensual view of the marriage relation, and it is now very generally held that any unjustifiable conduct on the part of either the husband or wife, which so grievously wounds the feelings of the other, or so utterly destroys the peace of mind of the other as to seriously impair the health, or such as utterly destroys the legitimate ends and objects of matrimony constitute extreme cruelty." ^^ § 113. False accusations and threats. The accusation of a crime or of unchastity, or of any other gross and false charge, made with accompanying threats of violence, is decreed to be such cruelty as to cause an appre- hension of fear by the complainant. The accusation need not be made to, or in the presence of, a third person, but may be part of the acts of cruelty alleged, and may also be the cause of such mental suffering, from their nature and scope, as to be an injury to health.^^ So too, threats of bodily violence, while not acts of violence in themselves, are held to be acts of cruelty, when they cause apprehension of bodily harm taken in connection with other conduct of the defendant.^' § 114. Masturbation not cruelty. The practice of masturbation by a husband in the presence 26 Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122, 46 Am. Rep. 108. See also Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, 16 L. R. A. 660, and note. 27 Ward V. Ward, 103 111. 477; Jones v. Jones, 62 N. H. 463; Kennedy v. Kennedy, 73 N. Y. 369; Waltermire v. Waltermire, 110 N. Y. 183, 17 N. E. 739. 28 Wheeler v. Wheeler, 53 Iowa, 511, 5 N. W. 689, 36 Am. Rep. 240; Palmer v. Palmer, 45 Mich. 150, 7 N. W. 760, 40 Am. Rep. 461 and note; Gardner v. Gardner, 23 Nev. 207, 45 Pac. 139. [64] CHAP. IX.] CRUELTY. [§ 115. of his wife, but without compelUng her to remain present, which injures her health by its effect upon her feelings, is not "cruel and abusive treatment" making such treatment a ground for divorce. ^^ § 115. Drunkenness no defence to cruelty. It is not a sufficient defence that the acts of cruelty com- plained of were inflicted by the defendant when he was in- toxicated and that he was kind when sober. ^° But violence inflicted by the husband from the use of morphine has been held not to be cruelty.'^ § 116. Mutual cruelty or family jars. Suits are often brought for divorce on the ground of cruelty, where the evidence shows that the acts of violence, as well as of cruelty, were committed by both parties, and it is difficult to formulate any rule from the decisions. Sometimes it seems to be a question of comparative cruelty, or one as to who committed the more violence, or the suits are dismissed as not proper cases for divorce. Thus it has been held that where the husband suffered as much as the wife in a violent, mutual quarrel, it would not be considered cruelty such as would sup- port a complaint for divorce. ^^ The courts have also decided that a divorce court is not the proper place for the reformation of domestic brawlers and the regulation of family fights. As men at best are but human, a nagging, abusive and exasperat- ing wife may induce him to lose control of his temper, ''for husbands are men not angels." ^^ Neither can a repeated urging of the husband by the wife to insure his life for her 29 W. V. W., 141 Mass. 495, 6 X. E. 541, 55 Am. Rep. 491. 30 Hughes V. Hughes, 19 Ala. 307; Benyman v. Berryman, 59 Mich. 605, 26 N. W. 789; Powers v. Powers, 20 Neb. 529, 31 N. W. 1 ; Wachholz v. Wach- holz, 75 Wis. 377, 44 N. W. 506. 31 Youngs V. Youngs, 130 111. 230, 22 N. E. 806, 17 Am. St. Rep. 313, 6 L. R. A. 548 and note. 32 Soper V. Soper, 29 Mich. 305. 33 Durand v. Her Husband, 4 Martin (La.), 174. 5 [65] § 116.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. IX. benefit be considered as an act of cruelty, and it is not a ground for divorce. ^^ Laziness and wilful neglect of household duties with obstinate silence by the wife does not constitute cruel and barbarous treatment under the Pennsylvania statutes. Mere family difficulties existing between a husband and wife, are not a cause for divorce, where they show no grave nor insuperable cause which renders cohabitation unbearable. ^^ Occasional disrespectful treatment of a husband in the presence of third persons and refusing to sleep with him for a few days is not ground for a divorce. ^^ 34 Saterlee v. Saterlee, 28 Colo. 290, 64 Pac. 189. 35 Scott V. Scott, 27 La. Ann. 594. 38 Scott V. Scott, 61 Tex. 119. [66] CHAP. X.] CONVICTION OF CRIME. [§ 117. CHAPTER X. CONVICTION OF CRIME. 117. General rule. 118. Imprisonment in foreign state. 119. Necessity of conviction. § 120. Effect of pardon after sen- tence. 121. Marriage of a criminal pend- ing appeal. § 117. General rule. The conviction of a crime (generally a felony), followed by sentence of imprisonment in the penitentiary for the term of years prescribed by statute, is a sufficient ground for an abso- lute divorce in most states.^ But such imprisonment is not considered desertion.' But in a Kentucky case, where the husband was sentenced to life imprisonment, the wife was granted a divorce on the ground of abandonment.^ § 118. Imprisonment in foreign state. A sentence to imprisonment in a state prison in another state is not a cause for divorce in Massachusetts, within the meaning of Mass. Pub. Stat., c. 146, § 2, permitting a divorce, "when either party has been sentenced to confine- ment at hard labor for life or for five years or more in the state prison, or in a jail or house of correction." ^ §119. Necessity of conviction. It is not enough that the defendant has committed a crime. iSee statutes of various states, infra, p. 233. aPorritt v. Porritt, 18 Mich. 420; Wolf v. Wolf, 38 N. J. Eq. 128. 8 Davis V. Davis, 102 Ky. 440, 43 S. W. 168. * Leonard v. Leonard, 151 Mass. 151, 23 X. E. 732, 21 Am. St. Rep. 437. See also Martin v. Martin, 47 N. H. 52; Klutts v. Klutts, 5 Sneed TTenn.), 423. [67] § 121.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. X. Conviction and sentence are necessary.^ But in a New Hamp- shire case the court granted a divorce after conviction pending an appeal. [It would seem, in all fairness to the defendant, that no decree of divorce should be granted until the convic- tion and sentence became final.] ^ § 120. Effect of pardon after sentence. No pardon granted to the defendant after decree of divorce will restore such party to his or her conjugal rights.^ § 121. Marriage of a criminal pending- appeal. Under the Vermont statute a divorce may be granted, when either party is sentenced to confinement at hard labor in the state's prison for life, or for three years or more, and is actually confined at the time; but a divorce for conviction of crime under the statute will not be granted a wife who has married a criminal pending an appeal from the conviction,* 5 Thomas v. Thomas, 51 111. 162; Rivers v. Rivers, 60 Iowa, 378, 14 N. W. 774; Oliver v. Oliver, 169 Mass. 592, 48 N. E. 843. 6 Cone V. Cone, 58 N. H. 152. 7 See Handy v. Handy, 124 Mass. 394; Young v. Young, 61 Tex. 191. 8 Caswell V. CasweU, 64 Vt. 557, 24 Atl. 988. [68] CHAP. XI.] HABITUAL DRUNKENNESS. [§ 122. CHAPTER XL HABITUAL DRUNKENNESS. § 122. Use of alcoholic liquors. j § 129. Complainant furnishing 123. Use of opium or other drugs. liquor. 124. Habitual drunkenness de- : 130. Periodical debauches. fined. 125. Degree of drunkenness. 126. Dipsomaniacs. 127. Court records. 128. Necessity of conviction. 131. Occasional intoxication. 132. Knowledge of drunkenness at time of marriage. 133. Habitual intemperance. § 122. Use of alcoholic liquors. Habitual drunkenness or intemperance caused by the vol- untary and excessive use of alcoholic liquors is a ground for divorce in nearly all states.^ A divorce will not be granted, however, on the ground of drunkenness unless it is shown that the drunkenness is habitual.^ § 123. Use of opium or other drugs. Habitual drunkenness caused by the voluntary and ex- cessive use of opium, chloral, chloroform, cocaine, or similar drug is a ground for divorce in many states. In Illinois, however, it is held that the excessive ase of morphine by hypodermic injection is not drunkenness within the meaning of the statute as a ground for divorce.' § 124. Habitual drunkenness defined. Habitual drunkermess, to constitute a ground for divorce, 1 See statute of various states, iyifra, p. 233. See also Brown v. Brown, 38 Ark. 324; McGill v. McGill, 19 Fla. 341; Dawson v. Dawson, 23 Mo. App. 169; Batchelder v. Batchelder, 14 N. H. 380. 2Myrick V. Myrick, 67 Ga. 771. 3 Youngs V. Youngs, 130 lU. 230, 22 N. E. 806, 17 Am. St. Rep. 313, 6 L. R. A. 548. [69] §127.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XI. must be gross and confirmed and continue long enough to render living together intolerable. What amounts to habitual drunkenness is a question of law fixed by statute, and in draw- ing a libel for divorce on this ground particular attention should be paid to the wording of the statute.^ § 125. Degree of drunkenness. Habitual intemperance is such degree of indulgence in the use of intoxicating liquors as disqualifies a person a greater portion of his time from properly attending to business, or which inflicts great anguish upon an innocent party.^ In Kentucky, a confirmed habit of drunkenness on the part of the husband, continued for not less than one year, accompanied with wasting his estate, and no suitable provision being made for wife and children, is a ground for divorce. The courts hold that, in the absence of property, the words "wasting of his estate" apply to and embrace the health, time, and labor of the defendant, as they are essentially his estate for the purpose of supporting himself and family.^ § 126. Dipsomaniacs. A person who has become fixed in the habit of indulging in liquor and gets drunk as often as the temptation is pre- sented, is a dipsomaniac and the husband or wife of such person is entitled to a divorce.'' § 127. Court records. Where the husband has been declared by the trial court to be an habitual drunkard a divorce will be decreed.* 4 Halls V. Cartwright, 18 La. Ann. 414; Williams v. Goss, 43 La. Ann. 868, 9 So. 750; DeLesdernier v. DeLesdernier, 45 La. Ann. 1364, 14 So. 191; Blaney v. Blaney, 126 Mass. 205. 5 Berryman v. Berryman, 59 Mich. 605, 26 N. W. 789; Gelding v. Golding, 6 Mo. App. 602. 6 McKay v. McKay, 57 Ky. 8; Shuck v. Shuck, 70 Ky. 306. 7 Magahay v. Magahay, 35 Mich. 210. 8 Johnson ?;. Johnson, 35 Leg. Int. (Pa.) 70. [70] CHAP. XI.] HABITUAL DRUNKENNESS. [§ 128. § 128. Necessity of conviction. In order to decree a divorce on the ground of drunkenness, it is not necessary that the defendant shall have been con- victed of the crime of drunkenness.^ § 129. Complainant furnishing liquor. Where it is shown that the complaining party furnished the defendant with liquor, or money with which to buy liquor, that he might keep drunk so that she could have grounds for a divorce, the court held that she was not entitled to a divorce for she had consented to his unlawful acts.^° § 130. Periodical debauches. Evidence that the libellee for a period of twelve or fifteen years had, as often as three or four times a year, yielded to an impulse to drink to excess; that on such occasions he became grossly intoxicated, continuing in that condition a week or ten days together; that at such times he went or was sent to an asylum for inebriates; that when the desire for drink came upon him he could not resist; that a single glass would bring on excessive drinking, and a renewal of excessive intoxication; that there had been no apparent improvement in his habits in this respect; and that any undue excitement would make him drink, is sufficient to justify a finding that he had contracted gross and confirmed habits of intoxication, and entitled the wife to a divorce." § 131. Occasional intoxication. Occasional intoxication is not sufficient groimd for a di- vorce. The habit must be habitual, gross, and confirmed.^^ 9 Brown v. Browa, 38 Ark. 324. 10 Bean v. Bean, 11 Lane. Bar Rep. (Pa.) 138. 11 Blaney v. Blaney, 126 Mass. 205. 12 McBee v. McBee, 22 Ore. 329, 29 Pac. 887, 29 Am. St. Rep. 613; Gourlay V. Gourlay, 16 R. I. 705, 19 Atl. 142. [71] § 133.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XI. Accordingly the occasional intoxication of the wife is not a ground for divorce. ^^ § 132. Knowledge of drunkenness at time of marriage. If the wife knew of the husband's drunkenness at the time she married him she cannot complain, and if he sets it up as a defence it is good.^^ So, too, a divorce will not be granted for drunkenness, where it appears that the habits of the de- fendant were the same at the time of the marriage and that the complainant was aware of the fact.^^ § 133. Habitual intemperance. Habitual intemperance, within the meaning of a statute authorizing a divorce for such cause, is not shown by the fact that defendant about once in three weeks became intoxicated during the evening to such an extent that the next morning he did not go as usual to his work, and had continued to do so for two years, if it had not caused the loss of his position, nor produced want or suffering in his family. ^^ 13 Bean v. Bean, 11 Lane. Bar Rep. (Pa.) 138. 14 Porritt V. Porritt, 16 Mich. 140. 15 Porritt V. Porritt, 16 Mich. 140; Tilton v. Tilton, (Ky.) 29 S. W. 290. 16 Dennis v. Dennis, 68 Conn. 186, 36 Atl. 34, 57 Am. St. Rep. 95, 34 L. R. A. 449 and note; Magahay v. Magahay, 35 Mich. 210. [72] CHAP. Xli.j DISCRETIONARY CAUSE. [§ 134. CHAPTER XH DISCRETIONARY CAUSES. § 134. In general. j 136. Washington. 135. Rhode Island. I § 134. In general. In a few states the courts have been authorized by statute to grant divorces in their discretion upon sufficient proof that they would be conducive to domestic harmony, or that they would be reasonable and proper for the welfare of the parties, and in accordance with the peace and morality of society. Such discretion means a judicial discretion, and not the dis- cretion of the parties, and it must be conservative and rea- sonable. § 135. Bhode Island. Wilful desertion for five years of either or the parties, or such desertion for a shorter period of time, in the discretion of the court, is a ground for divorce.^ § 136. "Washington. A divorce may be granted upon application of either party for any cause deemed by the court sufficient, and the court must be satisfied that the parties can no longer live together.^ 1 R. I. Laws, (1902), Chap. 971. » Ballinger's Codes & Statutes, § 5716. [73] § 137.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIII. CHAPTER XIII. DESERTION. 146. Refusal to cohabit. 147. Refusal to renew cohabita- tion. 148. Refusal to follow husband. 149. Refusal to follow wife. 150. Husband's liability for sup- port of wife. 151. Posting wife. 152. Desertion is not excused by continuing support. 153. Presumption of death. 154. Refusal of sexual intercourse. 137. Definition of desertion. 138. Desertion must be continu- ous. 139. Intention to desert. 140. Intention to desert must be wilful. 141. Cohabitation must actually cease. 142. Constructive desertion. 143. Separation by mutual con- sent is not desertion. 144. Desertion where both parties dwell under same roof. 145. Refusal to leave native coun- try. § 137. Definition of desertion. Desertion or abandonment, as it is sometimes called, is the wilful and wrongful leaving of one spouse by the other. It does not mean ceasing to have sexual relations; it means to cease cohabitation as well as sexual intercourse. It means deliberate and unjustly leaving the other, and living separate and apart, and it must continue uninterruptedly for the period of time fixed by the statute. In drawing a libel for divorce on the ground of desertion or abandonment the wording of the statute should be carefully followed and the libel or peti- tion for divorce should be signed by the libellant or plaintiff. Desertion consists in a cessation of cohabitation with a determination on the part of the offender not to renew it.^ And if the defendant has been insane during the period of 1 Bennett v. Bennett, 43 Conn. 313. [74] CHAP. XIII.] DESERTION. [§ 138. desertion required by the statute to entitle the plaintiff to a divorce, it cannot be included in computing the time.^ § 138. Desertion must be continuous. In order to justify the granting of a divorce on the ground of desertion or abandonment, the desertion must continue uninterruptedly for the full statutory period.^ If a suit on the ground of cruelty has been brought in good faith, the period of its pendency cannot be computed on a charge of desertion.^ § 139. Intention to desert. The complainant must clearly show that the defendant in- tended to desert.^ But a separation from necessity, such as inability by the husband to support the wife, does not con- stitute desertion.* § 140. Intention to desert must be wilful. The plaintiff must show that the desertion was intended by the party leaving, and that it was wilful and deliberate, not only to leave, but to permanently cease cohabitation.' § 141. Cohabitation must actually cease. With a few exceptions cohabitation must actually cease. 2 Blandy v. Blandy, 20 App. (D. C.) 535. 3 Holston V. Holston, 23 Ala. 777; Reed v. Reed, 62 Ark. 611, 37 S. W. 230; Phelan v. Phelan, 135 111. 445, 25 X. E. 751; Holmes v. Holmes, 44 Mich. 555, 7 N. W. 228; Gaillard v. Gaillard, 23 Miss. 152; Conger v. Conger, 13 N. J. Eq. 286. 4 Weigel V. Weigel, 63 N. J. Eq. 677, 52 Atl. 1123. 5 Bennett v. Bennett, 43 Conn. 313; McCoy v. McCoy, 3 Ind. 555; Orr V. Orr, 8 Bush (Ky.), 156; Pidge v. Pidge, 44 Mass. 257; Rudd v. Rudd, 33 Mich. 101; Jennings v. Jennings, 13 X. J. Eq. 38; Rogers v. Rogers, 18 N. J. Eq. 445; McClurg v. McClurg, 66 Pa. St. 366; Thorpe v. Thorpe, 9 R. I. 57; Besch v. Besch, 27 Tex. 390. 6 Bennett v. Bennett, 43 Conn. 313. 7 Bennett v. Bennett, 43 Conn. 313; Meldowney v. Meldowney, 27 N. J. Eq. 328; Ruckman v. Ruckman, 58 How. Pr. (N. Y.) 278. [75] § 143.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIII. The ceasing of sexual intercourse is not sufficient, except in states where it is prescribed by statute that a continuous refusal covering a certain period of time shall be deemed desertion.* § 142. Constructive desertion. Not always is the husband or wife who leaves the other the deserter. The party leaving may have a legal cause which justifies such leaving, and the other party is the deserter, as where a husband compels his wife or forces her to leave home by inhuman treatment or neglects to provide for her.^ And if the wife by her misconduct causes the husband to leave her, she will be held to have consented to the separation. ^<^ But the conduct of one party to justify the other in leaving must be of such a nature as to be inconsistent with the marital re- lation, or to render cohabitation unsafe.^^ Departure or ab- sence of one party from the family dwelling place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not de- sertion by the absent party, but is desertion by the other party.^2 • § 143. Separation by mutual consent is not desertion. A separation by mutual consent cannot be construed as desertion, unless one of the parties in good faith offers to resume cohabitation and such offer is refused." 8 Stewart v. Stewart, 78 Me. 548, 57 Am. Rep. 822. But see Danforth V. Danforth, 88 Me. 120, 51 Am. St. Rep. 380, 31 L. R. A. 608; Southwick V. Southwick, 97 Mass. 327, 93 Am. Dec. 95. 9 Levering v. Levering, 16 Md. 213; Palmer v. Palmer, 22 N. J. Eq. 88. 10 Gray v. Gray, 15 Ala. 779. 11 Kinsey v. Kinsey, 37 Ala. 393; Harding v. Harding, 22 Md. 337; Lever- ing?;. Levering, 16 Md. 213; Fera v. Fera, 98 Mass. 155; Cornish v. Cornish, 23 N. J. Eq. 208; Sowers's Appeal, 89 Pa. St. 173. 12 Pollock V. Pollock, 9 S. D. 48, 68 N. W. 176. 13 Crow V. Crow, 23 Ala. 583; Gray v. Gray, 15 Ala. 779; Lynch v. Lynch, 33 Md. 328; Cooper v. Cooper, 17 Mich. 205, 97 Am. Dec. 182; [76] CHAP. XIII.] DESERTION. [§ 144. § 144. Desertion where both parties dwell under same roof. There are cases where the courts have granted decrees for divorce where both parties continued to dwell under the same roof.^"* The courts as a rule, however, hold that there must be an actual desertion from the home or place of residence. § 145. Refusal to leave native country. The refusal of the wife to accompany her husband to a foreign country is not per se a wilful and malicious desertion. ^^ § 146. Refusal to cohabit. Where a marriage is performed under an agreement that the parties will not cohabit, and the purpose of the marriage is to prevent a conviction of bastardy and to legitimatize the children of the parties, a divorce may be granted although the marriage was not consummated by coition. ^^ A wife is guilty of desertion where she refuses to occupy the husband's bed and leaves his home on the morning after the marriage without any cause. ^^ So where a husband marries to avoid a prosecu- tion for bastardy and immediately leaves the wife and never cohabits with her, she may obtain a divorce for desertion al- though the marriage was not consummated.^* Again, a wife who refuses to remove to her husband's home or to cohabit with him in her home is guilty of desertion.^** § 147. Refusal to renew cohabitation. Where the parties have consented to live apart, either party may revoke such consent at any time, and if one of them Simpson v. Simpson, 31 Mo. 24; Goldbeck v. Goldbeck, 18 N. J. Eq. 42; Ingersoll v. Ingersoll, 49 Pa. St. 249; McGowen v. McGowen, 52 Tex. 657; Power v. Power, 65 N. J. Eq. 93, 55 Atl. 111. 1* Evans v. Evans, 93 Ky. 510, 20 S. W. 605; Anshutz v. Anshutz, 16 N. J. Eq. 162. 15 Bishop V. Bishop, 30 Pa. St. 412. 18 Franklin v. Franklin, 154 Mass. 515, 28 N. E. 681, 26 Am. St. Rep. ^6, 13 L. R. A. 843. " PUgrim V. Pilgrim, 57 Iowa, 370, 10 N. W. 750. 18 McQuaid v. McQuaid, Wright (Ohio), 223. 19 Sisemore v. Sisemore, 17 Ore. 542, 21 Pac. 820. [77] fill ^ 1 § 149.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIII. honestly seeks in good faith to renew cohabitation, and the other dedines, this refusal constitutes desertion. ^° § 148. Refusal to follow husband. As a rule the husband has the legal and moral right to fix the place of domicil, as he is considered the head and support of the family, and if for business or any other reason he re- moves to another state or locality, and his wife refuses to follow him, she is guilty of desertion.^^ In Massachusetts it has been held that a divorce obtained by the husband in another state, in accordance with the statutes of that state, for desertion by the wife, who lived in Massachusetts, where the parties were married and resided until his removal to the other state, which was not for the purpose of obtaining the divorce, will be recog- nized as valid, in Massachusetts, it appearing that the wife was duly served with process in Massachusetts, in accordance with the statutes of the other state, and it not appearing that she separated from her husband for justifiable cause, ^^ § 149. Refusal to follow wife. A husband was unable to support his wife and children owing to his poverty. The wife removed to another place where she supported herself. After the removal the husband visited his family but once, and made no provision whatever for their support. It was held that he was not guilty of de- sertion. The law must not be so construed as to require him to follow her to such places as for any cause she may see fit to go in order to escape the imputation of voluntary absence. ^^ MDanforth v. Danforth, 88 Me. 120, 51 Am. St. Rep. 380, 31 L. R. A. 608. 21 Kennedy ?J. Kennedy, 87 111. 250; Babbitt v. Babbitt, 69 111. 277; Walker V. Leighton, 31 N. H. Ill; Hunt v. Hunt, 29 N. J. Eq. 96; Hair v. Hair, 10 Rich. Eq. (S. C.) 163. 22 Loker v. Gerald, 157 Mass. 42, 31 N. E. 709, 34 Am. St. Rep. 252, 16 L. R. A. 497 and note. 23 Frost V. Frost, 17 N. H. 251. [78] [chap. XIV. FRAUD, DURESS AND MISTAKE. [§ 155. CHAPTER XIV. FRAUD, DURESS AND MISTAKE. 155. Fraud. 156. Fraudulent contract. 157. Duress. I 158. Mistake. 159. Antenuptial intercourse. § 155. Fraud. Where the wife is pregnant by another man at the time of marriage, and fraudulently conceals this fact from her hus- band, it is such a fraud as to render the marriage void.^ A marriage will be annulled where an innocent man has been entrapped into marrying a pregnant woman.' But a marriage will not be annulled for the husband's fraud in inducing a marriage by false representations as to his character or prop- erty. So where a husband represented that his former wife was dead, when in fact he had been divorced from her, the court held that this was not sufficient fraud to justify a divorce.' § 156. Fraudulent contract. Fraud or deception by one of the parties, if it consists of gross, outrageous falsehood or misrepresentation will render the marriage voidable.^ § 157. Duress. A marriage ceremony performed through compulsion or 1 Baker v. Baker, 13 Cal. 87; Ritter v. Ritter, 5 Blackf. (Ind.) 81; Carris V. Carris, 2-1 N. J. Eq. 516; Scott v. Shufeldt, 5 Paige (N. Y.), 43; Morris V. Morris, Wright (Ohio), 630. 2 Reynolds v. Reynolds, 85 Mass. 605. 3 Clarke v. Clarke, 11 Abb. Pr. (N. Y.) 228. * Leavitt v. Leavitt, 13 Mich. 452; Carris v. Carris, 24 N. J. Eq. 516. 6 [ 81 ] [^. vr6i' § 149.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIII. honestly seeks in good faith to renew cohabitation, and the other declines, this refusal constitutes desertion. ^° § 148. Refusal to follow husband. As a rule the husband has the legal and moral right to fix the place of domicil, as he is considered the head and support of the family, and if for business or any other reason he re- moves to another state or locality, and his wife refuses to follow him, she is guilty of desertion. ^^ In Massachusetts it has been held that a divorce obtained by the husband in another state, in accordance with the statutes of that state, for desertion by the wife, who lived in Massachusetts, where the parties were married and resided until his removal to the other state, which was not for the purpose of obtaining the divorce, will be recog- nized as valid, in Massachusetts, it appearing that the wife was duly served with process in Massachusetts, in accordance with the statutes of the other state, and it not appearing that she separated from her husband for justifiable cause. ^^ § 149. Refusal to follow wife. A husband was unable to support his wife and children owing to his poverty. The wife removed to another place where she supported herself. After the removal the husband visited his family but once, and made no provision whatever for their support. It was held that he was not guilty of de- sertion. The law must not be so construed as to require him to follow her to such places as for any cause she may see fit to go in order to escape the imputation of voluntary absence. ^^ zoDanforth v. Danforth, 88 Me. 120, 51 Am. St. Rep. 380, .31 L. R. A. 608. 21 Kennedys. Kennedy, 87 111. 2.50; Babbitt v. Babbitt, 69 111. 277; Walker V. Leighton, 31 N. H. Ill; Hunt v. Hunt, 29 N. J. Eq. 96; Hair v. Hair, 10 Rich. Eq. (S. C.) 163. 22Loker v. Gerald, 157 Mass. 42, 31 N. E. 709, 34 Am. St. Rep. 252, 16 L. R. A. 497 and note. 23 Frost V. Frost, 17 N. H. 251. [78] [chap. XIV. FIIAUD, DURESS AND MISTAKE. [§ 155. CHAPTER XIV. FRAUD, DURESS AND MISTAKE. § 155. Fraud. |§ 158. Mistake. 156. Fraudulent contract. 159. Antenuptial intercourse. 157. Duress. | § 155. Fraud. Where the wife is pregnant by another man at the time of marriage, and fraudulently conceals this fact from her hus- band, it is such a fraud as to render the marriage void.^ A marriage will be annulled where an innocent man has been entrapped into marrying a pregnant woman. ^ But a marriage will not be annulled for the husband's fraud in inducing a marriage by false representations as to his character or prop- erty. So where a husband represented that his former wife was dead, when in fact he had been divorced from her, the court held that this was not sufficient fraud to justify a divorce.^ § 156. Fraudulent contract. Fraud or deception by one of the parties, if it consists of gross, outrageous falsehood or misrepresentation will render the marriage voidable."* § 157. Duress. A marriage ceremony performed through compulsion or 1 Baker v. Baker, 13 Cal. 87; Ritter v. Ritter, 5 Blackf. (Ind.) 81; Carris V. Carris, 24 N. J. Eq. 516; Scott v. Shufeldt, 5 Paige (N. Y.), 43; Morris V. Morris, Wright (Ohio), 630. 2 Reynolds v. Reynolds, 85 Mass. 605. 3 Clarke v. Clarke, 11 Abb. Pr. (N. Y.) 228. * Leavitt v. Leavitt, 13 Mich. 452; Carris v. Carris, 24 N. J. Eq. 516. 6 [ 81 ] § 159.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIV. through fear of death or bodily harm is invalid, unless after- wards ratified by the party by voluntary sexual intercourse or cohabitation, or by assent.^ So a husband will be granted a divorce where the marriage has been contracted under duress of imprisonment under a void process or under a false charge." § 158. aiistake. Mistake or error as a ground for nullity is held to apply to nothing short of a positive mistake as to person. Nothing else is a sufficient ground.^ "Nothing would be more dan- gerous than to allow those who have agreed to take each other in terms, 'for better or worse,' to be permitted to say that one of the parties is worse than expected." * § 159. Antenuptial intercourse. Where a man has had sexual intercourse with his wife before marriage, and a child is born, and the husband knows that the child cannot be his, it is not sufficient ground to avoid the marriage.® So if a man marries a woman whom he knows to be with child, and with whom he himself has had unlawful intercourse, being induced to marry her by assurances that the child is his, and not taking any further steps to ascertain its paternity, nor suspecting her unchastity with any other man than himself, the court will not declare the marriage void, although it appears that he could not have been the father of the child. ^° Again, if a man marries a woman whom he knows to be unchaste, having had sexual intercourse with her, the 6 Bassett v. Bassett, 9 Bush (Ky.), 696. « Collins V. Collins, 2 Brewst. (Pa.) 515. 7 Rex V. Burton, 3 M. & S. 537. 8 Long V. Long, 77 N. C. 304. See also Scroggins v. Scroggins, 3 Dev. (N. C.) 535. 9 Carris v. Carris, 24 N. J. Eq. 516; Hoffman v. Hoffman, 30 Pa. St. 417. 10 Foss V. Foss, 94 Mass. 26. [ S2 ] CHAP. XIV.] FRAUD, DURESS AND MISTAKE. [§ 159. court will not declare the marriage void for the reason that she, on the day thereof, being at the time pregnant with a bastard child of which he was not the father, assured him she was not pregnant, and he married her on the faith of that assurance.** " Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98. [83] § 161.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XV, CHAPTER XV. IMPOTENCY. 160. In general. 1 169. Burden of proof. 161. Knowledge of defect. 170. Absence of sexual intercourse. 162. Causes of impotency. 171. Examination of defendant's 163. Advanced age. person. 164. Existence at time of mar- 172. Refusal to submit to exam- riage. ination. 165. Natural impotency. 173. Impotency must be alleged. 166. Temporal impotency. 174. Time of instituting proceed- 167. Curable impotency. ings. 168. The defect must be one of copulation. § 160. In general. The incapacity of either party to consummate the marriage, by reason of a defect of physical organization or infirmity, is a cause of divorce from the bonds of matrimony. And by the laws of some states, such a cause, existing at the time of the marriage, renders the contract voidable, and it may be declared void ah initio by a sentence of nullity.^ § 161. Knowledge of defect. Where an impotent person, knowing his defect, induces a person not cognizant of it to marry him, he commits thereby a gross fraud and a grievous injury; and even, if he is himself ignorant of it, there is equally an injury, though without in- tentional wrong. In the former case the marriage would be clearly voidable on the sole ground of fraud, if the principles governing other contracts were applied to it; in the latter case it would seem to be equally voidable on the ground of mistake, 1 See divorce laws of the several states, infra, p. — . [84] CHAP. XV.] IMPOTENCY. [§ 162. and the violation of the implied warranty. But, owing to the peculiar nature of marriage, this infirmity, though sometimes treated as a pure fraud is, according to the better opinion, to be regarded in a somewhat different aspect, yet as present- ing some of the elements of fraud. ^ § 162. Causes of impotency. Idiocy. Impotency may be caused from idiocy in which case it is no ground for divorce.^ Loss of testes. Impotency may be caused by the loss of one or both testes. The loss of one testis does not as a rule affect the procreative powers; the loss of both renders a man in- curably impotent."* Relaxation. Relaxation of the parts, the result of masturba- tion, causing the male to become wholly incapable.^ Malformation, or disease. Malformation of the organs by disease, large obstructions, rupture and hydroceles, or some deformity rendering copulation impossible or imperfect.® Lack of development. Impotency may be caused in the female by a lack of development or the want of child-bearing organs, or by lack of physical capacity,^ as narrowness of the vagina, adhesion of the labia, absence of the vagina, imper- forated hymen, tumors in the vagina, and sterility.* § 163. Advanced age. Old age sometimes renders a man incapable, and where, in a suit for divorce for impotency, the libellant was seventy- three years of age and the respondent sixty, the court held that, though the suit should be dismissed for want of any 2 See statutes of the several states, infra, p. 233. 3 Norton v. Norton, 2 Aik. (Vt.) 188. * Principles of Forensic Medicine, 7th Ed. Guy & Ferrier, p. 59. 5 Principles of Forensic Medicine, 7th Ed. Guy & Ferrier, p. 61. « Principles of Forensic Medicine, 7th Ed. Guy & Ferrier, p. 57. 7 J. G. V. H. G., 33 Md. 401, 3 Am. Rep. 183. 8 Principles of Forensic Medicine, 7th Ed. Guy & Ferrier, p. 64. [ S5 ] § 168.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XV. proof save the statement of the libellant alone, yet it was doubtful whether a divorce should be decreed in any event.® A divorce wUl not be granted on the ground of impotency where the parties are at an advanced age at the time of mar- riage.^" § 164. Existence at time of marriage. The impotency must exist at the time of the marriage and be incurable, in order to constitute a ground for divorce or annulment. ^^ § 165. Natural im.potency. When the defect is natural, the legal presumption is that it existed at the time of the marriage, but a contrary presump- tion arises when it is merely accidental. ^^ § 166. Teraporary im.potency. A temporary or occasional incapacity for copulation is not a groimd for a decree of nullity. The defect must be perma- nent and lasting. ^^ § 167. Curable im.potency. A marriage will not be annulled for curable impotency." The infirmity or defect must be incurable. ^^ § 168. The defect must be one of copulation. The defect must be one of copulation, not of reproduction. » Fulmer v. Fulmar, 13 Phila. (Pa.) 166. 10 Briggs V. Morgan, 3 Ph. Ecc. 325. 11 Ferris v. Ferris, 8 Conn. 166; Powell v. Powell, 18 Kan. 371, 26 Am. Rep. 774; J. G. v. H. G., 33 Md. 401, 3 Am. Rep. 183; Bascomb v. Bascomb, 25 N. H. 267; Devanbagh v. Devanbagh, 5 Paige (N. Y.), 554, 28 Am. Dec. 443. 12 Brown v. Brown, 1 Hag. Ecc. 523. 13 Kempf V. Kempf, 34 Mo. 211. 14 Bascomb v. Bascomb, 25 N. H. 267; Devanbagh v. Devanbagh, 6 Paige (N. Y.), 175. 16 Griffeth v. Griffeth, 162 lU. 368, 44 N. E. 820. [86] CHAP. XV.] IMPOTENCY, [§169. Barrenness will not invalidate the marriage, but the copulation should be complete and not imperfect. ^^ § 169. Burden of proof. The burden of proof is on the complainant to show that the impotency existed at the time of the marriage, that it still exists, and that it is incurable; and the pleadings must so state." § 170. Absence of sexual intercourse. The fact that the parties had occupied the same room and bed nightly for a long time, and the alleged incompetent person had refused and had admitted inability to have sexual inter- course, is not sufficient evidence to prove impotency.^* At the trial of a libel for divorce by a husband against his wife, alleging impotency on the part of the wife, it appeared that the parties had occupied the same bed for a period of ten years, both being in good health; that the marriage had never been consummated by any act of sexual intercourse; that the husband had often tried to have intercourse with his wife but she utterly refused to permit it, giving no reason for her re- fusal; that the husband did not know that the wife was physi- cally incapable of the act of sexual intercourse; and that the wife refused to submit to an examination as to her physical capacity. A female witness testified that the wife had said to her that "she could not have connection with any man," but gave no reason, nor explanation why she could not. It was held, that this statement of the wife, taken together with the other evidence, would justify a finding that the charge in the libel was proved; and that a ruling that the evidence would not, in law, justify such a finding was a subject of exception. ^^ 16 J. G. V. H. G., 33 Md. 401. 17 Lorenz v. Lorenz, 93 III. 376; Devanbaghr. Devanbagh, 5 Paige (N. Y.), 554, 28 Am. Dec. 443. 18 Ferris v. Ferris, 8 Conn. 166. "Merrill v. Merrill, 126 Mass. 228. [87] §174.] THE LAW OP MARRIAGE AND DIVORCE. [CHAP. XV. § 171. Examination of defendant's person. The court may order the defendant's person to be examined by a surgeon, and, upon the evidence of the surgeon making the examination, the bill may be sustained.^" An examination is the only means of ascertaining the true condition. ^^ When the lack of present capacity is admitted, the court will direct that a surgical examination be made, together with an ex- amination of the party under oath, to determine if it existed at the time of the marriage.22 Where it is alleged that the wife's impotency is from malformation, the court will order an examination.23 In a suit for annulment on the ground of physical incapacity resulting from disease, a compulsory refer- ence cannot be made. This can only be done under the stat- ute where the incapacity is congenital. 2^* § 172. Refusal to submit to examination. A refusal to submit to an examination raises the presump- tion that the defendant is impotent.^^ § 173. Impotency must be alleged. Impotency must be alleged in the petition and proved to be incurable to justify a divorce.^^ § 1 74. Time of instituting proceedings. The validity of a marriage under such circumstances can be assailed only in the lifetime of both parties, and by the injured party. A wife may, if she chooses, live with a hus- band who is impotent, and he cannot then avoid the duties of the marital relation, such as support and maintenance by having the marriage dissolved. Suits for divorce upon these 20 Devanbagh v. Devanbagh, 5 Paige (N. Y.), 554, 28 Am. Dec. 443. 21 Le Barron v. Le Barron, 35 Vt. 365. 22 Newell V. Newell, 9 Paige (N. Y.), 25. 23 A. C. V. B. C, 11 Wkly. Notes of Cas. (Pa.) 479. 24Morrell v. Morrell, 17 Hun (N. Y.), 324. 25 Merrill v. Merrill, 126 Mass. 228. 26 Roe V. Roe, 29 Pittsb. L. J. (Pa.) 319. [S8] CHAP. XV.] IMPOTENCY. [§ 174. grounds should be brought within a reasonable time after marriage, for if the parties continue to live together for an unreasonable length of time after ascertaining the true con- dition, or when they might with reasonable diligence have as- certained the true condition, it indicates insincerity or bad faith on the part of the petitioner or libellant. For this reason many of the states have passed laws regulating the time, after marriage, in which divorce proceedings or annulments shall be begun. Under no circumstances does the law permit the parties to cohabit while suit is pending. ^^ 27 Chapman v. Chapman, 25 X. J. Eq. 394. [89] § 176.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP, XVI. CHAPTER XVL INSANITY. 175. In general. 176. Degree of insanity. 177. Collateral attack. § 178. Insanity after marriage. 179. An insane person cannot bring libel. § 175. In g-eneral. No insane person or idiot is capable of contracting marriage. A person cannot make a valid contract unless he is capable of understanding; he must have mental capacity to give con- sent.^ The insanity or idiocy must exist at the time of the marriage contract, or at the time the ceremony is performed, to render the marriage void or voidable. If a person is only temporarily insane, and afterwards recovers or during a lucid interval consents to the marriage, it will be held valid.^ § 176. Degree of insanity. To prove a marriage void on the ground of insanity, it is necessary to show that the insanity is total, and that the form or degree of insanity was such at the time of marriage that the party did not possess sufficient mental capacity to have understood, in a reasonable manner, the nature and effect of the marriage contract.^ The insanity which renders a mar- riage void must exist at the time that the marriage ceremony was performed. Subsequent or prior insanity is no ground 1 Rawdon v. Rawdon, 28 Ala. 565. 2 Orchardson v. Cofield, 171 111. 14, 49 N. E. 197, 63 Am. St. Rep. 211, 40 L. R. A. 256. 3 Orchardson v. Cofield, 171 111. 14, 49 N. E. 197, 63 Am. St. Rep. 211, 40 L. R. A. 256; St. George v. Biddeford, 76 Me. 593; Lewis v. Lewis, 44 Minn. 124, 46 N. W. 323, 20 Am. St. Rep. 559, 9 L. R. A. 263 and note; Ward V Dulaney, 23 Miss. 410. [90] CHAP. X\7.] INSANITY. [§ 177. for a divorce or an annulment of a marriage. In an Indiana case the court said, "although a court has jurisdiction to grant a divorce for causes which the court shall deem proper, a divorce will not be granted for insanity arising after marriage, as the court can grant a divorce to the injured party only where the other party is a wrongdoer." * But in a Washing- ton case, it was held that an act of the legislature making incurable chronic mania or dementia existing for more than ten years a ground for divorce was valid, as the matter was a rightful subject of legislation.^ § 177. Collateral attack. The legislature has power to pass a statute providing that the validity of existing marriages shall not be questioned in the trial of collateral issues, on account of the insanity or idiocy of either party .^ § 178. Insanity after marriage. In Florida, a divorce may be granted in case of the incurable insanity for four years of one of the parties.'^ In Idaho, insanity after marriage is a cause for divorce. The statute provides that no divorce shall be granted on this ground unless such insane person has been regularly confined m an insane asylum for at least six years next preceding the commencement of the action for divorce, and that no action shall be maintained upon this ground unless the plaintiff shall have been an actual resident of the state for at least one year next preceding the commencement of the action. In Indian Territory, where either party subsequent to mar- riage has become permanently or incurably insane, a divorce may be granted. * Curry v. Curry, 1 Wilson (Ind.), 236. 5 Hickman v. Hickman, 1 Wash. 257, 24 Pac. 445, 22 Am. St. Rep. 148. 8 Goshen v. Richmond, 86 Mass. 458. 7 See divorce laws of these states. [91] § 179.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XVI. In Pennsylvania, where the wife is a lunatic or non compos mentis, a relative or next friend may petition for divorce. In Washington, in cases of incurable, chronic mania or dementia of either party having existed for ten years or more, the court may in its discretion grant a divorce. § 179. An insane person cannot bring libel. A bill of divorce filed by an insane person while in close confinement is invalid.^ Where alleged acts of cruelty are inflicted by an insane person, it is not ground for divorce, unless inflicted in a lucid interval. And where defendant had been recently confined in an asylum, it was held the plaintiff should prove lucidity.^ 8 Bradford v. Abend, 89 111. 78, 31 Am. Rep. 67. » Tiffany v. Tiffany, 84 Iowa, 122, 50 N. W. 554; Broadstreet v. Broad- street, 7 Mass. 474. [92] CHAP. XVII.] REFUSAL TO SUPPORT. [§ 180. CHAPTER XVII. REFUSAL TO SUPPORT. § 180. In general. |§ 183. Pecuniary ability. 181. Wife able to support herself. 184. Squandering wife's property. 182. Physical weakness. I § 180. In general. Where the husband, being of sufficient ability, cruelly or wilfully refuses or neglects to support his wife, it is a ground for divorce in most states. And in those states where the statutes make no provision for divorce on the ground of refusal to support, if the husband refuses or neglects to supply his wife with the common necessaries of life, and she has no other means of obtaining support, it is held sufficient ground to warrant her in leaving him, and the husband will be the deserting party. ^ § 181. "Wife able to support herself. If the wife has independent means, or, if she has for some time past supported herself by her own earnings, she will not be entitled to a divorce.^ § 182. Physical weakness. If the husband's neglect to supply his wife with the common necessaries of life is due to his physical weakness or enforced poverty, the wife wUl not be entitled to a divorce.^ § 183. PecTiniary ability. The courts hold that the test m cases for divorce on the 1 Morris V. Morris, 20 Ala. 168; Warner v. Warner, 54 Mich. 492, 20 N.W. 557. 2 Washburn v. Washburn, 9 Cal. 475; Ryeraft v. Ryeraft, 42 Cal. 444. 3 Baker v. Baker, 82 Ind. 146. [93] § 184.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XVII. ground of refusal or neglect to support is the possession by the husband of sufficient means in property to furnish her maintenance, and not his capacity of acquiring such means.^ § 184. Squandering wife's property. It has been held that if the husband squanders the wife's property and for several months neglects to provide for her, she will be entitled to a divorce.^ The general rule, however, is that it must be more than a neglect to provide. The libel- lant must show not only that her husband had means to pro- vide for her, but that he wilfully, and, in some states, cruelly neglected to provide, that she was without means, and that she actually suffered for the want of the necessaries of life.^ If the inability arises through imprisonment,' insanity,^ sick- ness, or inability to procure emplojonent, the wife will not be entitled to a divorce.^ * Fellows V. Fellows, 8 N. H. 160; Famsworth v. Famsworth, 58 Vt. 555, 5 Atl. 401. 5 Hurl hurt v. Hurlburt, 14 Vt. 561. 6 Runkle v. Runkle, 96 Mich. 493, 56 N. W. 2; Randall v. Randall, 37 Mich. 563; Faller v. Faller, 10 Neb. 144; Davis v. Davis, 37 N. H. 191; John- son V. Johnson, 4 Wis. 135. "> Hammond v. Hammond, 15 R. I. 40. 8 Baker v. Baker, 82 Ind. 182. 8 Davis V. Davis, 37 N. H. 191. [94] CHAP. XVIII.] EXCEPTIONAL CAUSES. [§ 185. CHAPTER XVm. EXCEPTIONAL CAUSES. 185. Sodomy. 186. Crime against nature. 187. Immoral or criminal conduct. 188. Fleeing from justice. 189. Gross neglect of duty. § 190. Joining Shakers or like soci- eties. 191. Indignities. 192. Defamation of character. 193. Living apart for years. § 185. Sodomy. Sodomy committed by the husband, though not adultery, is within the statute making extreme cruelty ground for divorce.^ § 186. Crime against nature. In Alabama, the crime against nature with mankind or beast is a ground for absolute divorce.^ § 187. Immoral or criminal conduct. In California, immoral or criminal conduct is a ground for absolute divorce.' § 188. Fleeing from justice. In North Carolina, if the husband is indicted for felony, and flees from the state, and fails to return within one year from the time the indictment is foimd, it is a cause for divorce.^ In Virginia, when either party, charged with an offence punishable with death or confinement in the penitentiary, has 1 .\nonymous, 2 Ohio N. P. 342; Poler v. Poler, 32 Wash. 400, 73 Pac. 372. 2 -•Ua. Code, e. 37, § 1485. 3 Fleming v. Fleming, 95 Cal. 430, 30 Pac. 566, 29 Am. St. Rep. 124. ♦ N. C. Code, § 2743. [95] § 191.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XVIII. been indicted and is a fugitive from justice, and has been ab- sent for two years, the other party is entitled to a divorce.^ § 189. Gross neglect of duty. In Kansas, Oklahoma, and Ohio, any gross neglect of duty is made a ground for divorce.^ § 190. Joining: Shakers or like societies. The joining of a religious society, such as the Shakers, who profess to believe matrimonial intercourse improper and un- lawful, and refusing to cohabit for six months, is a cause for divorce in New Hampshire^ § 191. Indignities. Habitual indignities, which have caused undeserved suffer- ing, even though they may not be attended with physical violence, or be of such an extreme nature as to render the party incapable of discharging marital duties, have been held sufficient.* So where the husband was in the habit of using vile and abusive language toward his wife, causing her much mental suffering, and fits of illness, threatening permanent injury to her health, the court held that the wife was entitled to a divorce on the ground of cruelty.^ So a false charge of adultery has been held sufficient,^" as has been continual scolding, fault-finding, unkind language, contempt and petty acts of a malicious nature which impair the wife's health. ^^ In a New Hampshire case it appeared that the wife had been practising Christian Science and that the husband was op- 6 Pollard's Code (1904), §2257. 8 Leach v. Leach, 46 Kan. 724, 27 Pac. 11; Thorp v. Thorp, Wright (Ohio), 763; Schwartz v. Schwartz, 6 Ohio Dec. 525; Wilson's Ann. Stat. (1903), § 4832. 7 Fitts V. Fitts, 46 N. H. 184; Dyer v. Dyer, 5 N. H. 271. 8 Rose V. Rose, 9 Ark. 507; Briggs v. Briggs, 20 Mich. 34. 9 Powelson v. Powelson, 22 Cal. 358; Gholston v. Gholston, 31 Ga. 625. loPinkard v. Pinkard, 14 Tex. 356; Wheeler v. Wheeler, 53 Iowa, 511; Goodman v. Goodman, 26 Mich. 417; Allen v. Allen, 31 Mo. 479. 11 Marks 7-. Marks, 56 Minn. 264, 64 N. W. 561, 45 Am. St. Rep. 466. [90] CHAP. XVIII.] EXCEPTIONAL CAUSES. [§ 192. posed to her so doing. This caused the husband to become morose, moody, and inattentive to his business. He was troubled occasionally with insomnia and loss of appetite and became generally despondent and unhappy from his changed domestic relation. It was admitted that the wife was kind and peaceable and a good mother. The court held that the husband was entitled to a divorce.^' But a divorce will not be granted the husband on the ground of extreme and repeated cruelty on the part of the wife, where the evidence simply shows that she was rude, petulant and passionate, and that she threatened violence, but on no occasion actually struck him or inflicted any bodily suffering upon him." And where it is shown that the husband neglected to provide necessaries, and was frequently intoxicated, and used profane and abusive language, followed by a single act of violence, the court held that it was such an indignity to the person as to justify a separation, and a delay of ten years in making application for divorce was no bar.^"* But an indignity pro- voked by the plaintiff, or a single act of indignity, be it ever so rude or coarse, is not a ground for divorce. ^^ § 192. Defamation of character. Public defamation of character, if wanton and malicious, is a cause for divorce in Louisiana. But mere abusive language and charges made by the husband while in anger are not suffi- cient, where no one was present but the husband and wife.^" To constitute public defamation, the charge must be false and malicious and made in the presence of others, and where the 12 Robinson v. Robinson, 66 X. H. 600, 23 Atl. 362, 49 Am. St. Rep. 632. "Fritts V. Fritts, 36 111. App. 31; Ennis r. Ennis, 92 Iowa, 107, 60 N. W. 228; Johnson v. Johnson, 49 Mich. 639, 14 X. W. 670; Scott v. Scott, 61 Tex. 119. " Doan V. Doan, 3 Clark (Pa.), 7, 4 Pa. L. J. 332. 15 Richards v. Richards, 37 Pa. St. 357. 16 Bienvenu v. Her Husband, 14 La. Ann. 387; Homes v. Carrier, 19 La. Ann. 94. 7 [97] § 193.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XVIII. husband charged his wife with the crime of adultery in the presence of their servants and others, the court held the evi- dence sufficient to grant a decree. ^^ But where the wife, in good faith, charged her husband with adultery to a friend, for the purpose of inducing the friend to intercede with the hus- band and try to induce him to return home, it is not a public defamation, although the charge is false. ^* § 193. Living apart for years. In Kentucky, living apart without any cohabitation for five consecutive years next before the application, is sufficient ground for divorce. ^^ In Wisconsin, whenever the husband and wife shall have voluntarily lived entirely separate for the space of five years next preceding the commencement of the action, a decree will be granted.^" 17 Cass V. Cass, 34 La. Ann. 614. 18 Ashton V. Grucker, 48 La. Ann. 1194. 19 Ky. Stat. § 2117. 20 Wis. Rev. Stat. § 2356; Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166; Cole v. Cole, 27 Wis. 531; Phillips v. Phillips, 22 Wis. 256. [98] CHAP. XIX.] JURISDICTION. [§ 194. CHAPTER XIX. JURISDICTION. 194. Courts having jurisdiction. 195. Domicil as basis of jurisdic- tion. 196. Change of domicil. 197. Domicil defined. 198. Locus of cause. 199. Residence not sufficient to confer jurisdiction. § 200. Residence of parties to suit. 201. Different domicil lor hus- band and wife. 202. Acquired jurisdiction. 203. Jurisdiction by appearance. 204. Jurisdiction of chancery to decree nullity of marriage. § 194. Courts having jurisdiction. As the ecclesiastical courts which, in England, originally had jurisdiction of divorce cases, were never established in this country, the only jurisdiction any court here has is founded on the express conferring of such jurisdiction upon it by statute, under the constitutional prohibition of legislative divorces. This authority must be express and will not be inferred from a general conferring of jurisdiction in civil cases. ^ Courts having general powers in equity or even in common law and equity combined do not, therefore, have jurisdiction in divorce, unless the same is expressly conferred.^ Federal courts have no jurisdiction in divorce, although they have enforced decrees for alimony. Divorce cases cannot, therefore, be removed to the federal courts under the claim that they are suits between citizens of different states.' 1 Heathen\-ick v. Heatherwick, 32 111. 73; Wright v. Wright, 2 Md. 429, 56 Am. Dec. 723; KeUey v. Kelley, 161 Mass. Ill, 36 X. E. 837, 25 L. R. A. 806; Cook v. Cook, 56 Wis. 195, 14 X. W. 33, 43 Am. Rep. 706. 2 Sharon v. Sharon, 67 Cal. 209, 9 Pac. 187. 3 Bowman v. Bowman, 30 Fed. 849; Johnson v. Johnson, 13 Fed. 193. [99] § 196.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIX. § 195. Domicil as basis of jurisdiction. The law of the place of the actual, bona fide domicil of the party or of one of the parties gives jurisdiction to the proper court to decree a divorce for any cause allowed by the local law, without reference to the law of the place of the original marriage.^ A decree of divorce granted by a court of the state having jurisdiction over the petitioning party as a citizen of the state is, by the constitution of the United States, valid in all the states.^ While a marriage in a foreign state will usually be construed as valid if possible, a divorce is subjected to the test of jurisdiction and domicil when it is decreed out- side the real legal domicil of the parties, and unless such test can be fairly borne it is set aside for want of jurisdiction. The court will not take jurisdiction of a libel for divorce on the ground of adultery, where the parties were married in another state in which the adultery was committed, the crimi- nal party still residing in such state. It has, however, been held in Massachusetts, that a Massachusetts court has juris- diction of a libel for divorce, brought by the husband residing in another state, for the cause of adultery, occurring in Mas- sachusetts where both parties then resided, and where the wife had since remained.® § 196. Change of domicil. Every person must have one domicil, and is presumed to have that one until he has acquired another by a change of residence, coupled with an intention to acquire a new one. No person can have two domicils at the same time.^ In order 4 Harteau v. Harteau, 31 Mass. 181, 25 Am. Dec. 372; Barber v. Root, 10 Mass. 260; Leith v. Leith, 39 N. H. 20; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Ditson v. Ditson, 4 R. I. 87. 5 Ditson V. Ditson, 4 R. I. 87. e Watkins v. Watkins, 1 35 Mass. 83. 7 Desmare v. U. S., 93 U. S. 605, 23 L. ed. 959; Carlbertson v. Board of Commissioners, 52 Ind. 361; Abington v. North Bridgewater, 40 Mass. 170; De Meli v. De Meli, 67 How. Pr. (N. Y.) 20; Mitchell v. U. S., 21 Wall. (U. S.) 350, 22 L. ed. 584. [100] CHAP. XIX.] JURISDICTION. [§ 197. to acquire a new domicil, a person must leave one place and take up a residence in another with the bona fide intention of making the latter his legal and permanent residence. It fol- lows, therefore, that when a person whose legal domicil is in one state, goes into another for the sole purpose of procuring a divorce and with no intention of remaining there, he does not acquire that domicil which is necessary to give the court there jurisdiction, and the divorce may be declared void for lack of jurisdiction by the courts of the state of his domicU, it being considered that the courts of one state have no power to change the status of citizens of another state.* It is not the domicil of the party at the time of marriage or at the time of the trial of the cause, but at the time of the application for divorce that determines the jurisdiction of the court. ^ § 197. Domicil defined. Domicil means the place where a person lives or has his home to which, when absent from it, he intends to return, and from which he has no present purpose to remove.^" § 198. Locus of cause. Formerly it was held that the locus of the cause gave juris- diction over the parties to a divorce suit, but as this doctrine interfered with the conceded right of a state to control the status of its citizens when such parties subsequently acquired a domicil in another state, it has been abandoned and, in the absence of statutory regulations, the place where the cause arose is immaterial. ^^ As each state has the power to make sSewall V. Sewall, 122 Mass. 156, 23 Am. Rep. 299; People v. Darnell, 25 Mich. 247; Colburn v. Colbum, 70 Mich. 647, 38 X. W. 607; Hoffman V. Hoffman, 46 N. Y. 30, 7 Am. Rep. 299; Pawling v. Willson, 13 Johns. (N. Y.) 192. 9 Barber v. Root, 10 Mass. 260: Hunt r. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Ditson v. Ditson, 4 R. I. 87. 10 Home v. Home, 9 Ired. (N. C.) 99. See also Krone v. Cooper, 43 Ark. 547; Putnam v. Johnson, 10 Mass. 488; Anderson v. Anderson, 42 Vt. 350. 11 Barber v. Root, 10 Mass. 260; Jones v. Jones, 67 Miss. 195, 6 So. 712, 19 Am. St. Rep. 299; State v. Baker, 76 N. Y. 78. [101] § 199.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIX. laws governing its citizens, some states have statutory pro- visions which make important the consideration of the place of the cause and other requirements, such as cohabitation and similar provisions, and the statutes of each state should always be examined before bringing suit.^^ § 199. Residence not sufficient to confer jurisdiction. (a) Domicii is necessary. — Mere residence in any state will not support a divorce, a domicii is necessary. Domicii cannot be acquired in any state by mere bodily presence in such state, however long continued. To acquire a new domicii, the party must have his abode in one place with the intention of remaining there, for without such inten- tion no new domicii can be gained and the old one will not be lost. The United States supreme court and the courts of all the states have always held that divorce judgments founded on mere residence were worthless and void. Bodily presence, in any state, no matter how long continued cannot make a change of domicii. The old domicii is not lost or a new one gained by mere bodily presence, and although the statutes of most states speak of the time of residence required, they mean and have always been construed to mean the length of domicii required. There is a vast difference between a bona fide domi- cii and a mere residence. The supreme court of Massachu- setts said, "The finding of the single justice clearly means that the deceased did not get a domicii in South Dakota. He meant to stay there ninety days, and such further time, per- haps, as was necessary to get his divorce, and then he meant to come back to Massachusetts. It is true that he meant to do all that was needful to get a divorce, but he meant it be- cause he was mistaken as to what was needful. In other words, 12 Hick V. Hick, 5 Bush (Ky.), 670; D'Auvilliers v. De Livaudais, 32 La. Ann. 605; Muller v. Hilton, 13 La. Ann. 1, 71 Am. Dec. 504; Harding v. Alden, 9 Me. 140; Harteau v. Harteau, 31 Mass. 181, 25 Am. Dec. 372; Foss V. Foss, 58 N. H. 283. See Appendix, p. 459. [102] CHAP. XIX.] JURISDICTION. [§ 199. he only meant to do what he supposed to be needful and that was not enough."^^ (b) Proceedings should be in place of domicil. — Proceedings for divorce may be instituted where the plaintiff, and under some circumstances the defendant, has a domicil. The place of the marriage, or the offence and the residence of the de- fendant are of no consequence.^'* No state has a right to dis- solve the marriage of persons who are residents of another state. ^^ (c) Laws of the several states. — Every state and territory has enacted laws governing divorce and the laws of all the states within the United States require that one of the parties to the divorce action must have had a bona fide domicil in the state or territory of the suit for a certain length of time be- fore the courts acquire jurisdiction to pronounce a divorce judgment. There is no conflict of laws within the United States on the subject of marriage and divorce. Whenever a state has refused to grant a divorce, or whenever the state courts throughout the United States and the United States supreme court have refused to accord faith and credit to the divorce judgment of a sister state therein, it has been on ac- count of fraud ; it has been because there was a lack of notice to the defendant; lack of domicil or other fraud. One having a domicil in Massachusetts does not lose that domicil or gain a new domicil by going to another state and remaining there for the length of time required to gain a domicil, applying for a divorce, obtaining a decree and immediately returning to 13 Andrews v. Andrews, 176 IVIass. 92, 57 N. E. 333, affirmed in ISS U. S. 14, 47 L. ed. 366. See Atherton v. Atherton, 181 U. S. 155, 45 L. ed. 794. 11 Shaw V. Shaw, 98 Mass. 158; Watkins v. Watkins, 135 Mass. 83; Burlin V. Shannon, 115 Mass. 4.38; Prosser v. Wamer, 47 Vt. 667. (See note in reprinted edition.) 15 Beard v. Beard, 21 Ind. 321 ; People v. Baker, 76 N. Y. 78. [ 103 ] § 199.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIX. Massachusetts, the proof of intention is lacking and the di- vorce so obtained. is worthless. It is a fraud on the laws of the state which require that a divorce action be brought in the state of the domicil. The courts of one state cannot divorce the citizens of another state.* The divorce judgments that have been held worthless, there- fore, have been so held, because the laws have not been com- plied with and not because there is a conflict of laws. Mere absence from a fixed home, however long continued, cannot work a change of domicil. A decree or judgment of divorce that is invalid where it is rendered cannot have any validity ac- corded it in any other state or country. ^^ *See Appendix, p. 459. 16 United States: Andrews v. Andrews, 188 U. S. 14, 47 L. ed. 366; Bell V. Bell, 181 U. S. 175, 45 L. ed. 304; Mitchell v. U. S., 88 U. S. 350, 22 L. ed. 584; Streitwold v. Streitwold, 181 U. S. 179, 45 L. ed. 807. Arkansas: Wood v. Wood, 54 Ark. 172,15 S. W. 459, 43 Am. St. Rep. 42. Colorado: Medina v. Medina, 22 Colo. 146, 43 Pac. 1001. Dakota: Beach v. Beach, 6 Dak. 371, 43 N. W. 701. District of Columbia: Strait v. Strait, 3 McArthur (D. C.) 415. Florida: Phelan v. Phelan, 12 Fla. 449; Shrader v. Shrader, 36 Fla. 502. Georgia: House v. House, 25 Ga. 473. Illinois: Dunham v. Dunham, 162 111. 589 N. E., 35 L. R. A. 70. Indiana: Becker v. Becker, 160 Ind. 407, 66 N. E. 1010; Watkins v. Watkins, 125 Ind. 163, 25 N. E. 175, 21 Am. St. Rep. 217. Iowa: Whitcomb v. Whitcomb, 46 Iowa, 437. Kansas: Petterson v. Petterson, 57 Kan. 275, 46 Pac. 304. Massachusetts: Adams v. Adams, 154 Mass. 290, 28 N. E. 260, 13 L. R. A. 275; Andrews v. Andrews, 176 Mass. 92, 57 N. E. 333 (See same case, 188 U. S. 14, 47 L. ed. 366); Chase v. Chase, 72 Mass. 157; Com. v. Kendall, 162 Mass. 221, 38 N. E. 405; Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299. Michigan: Reed v. Reed, 52 Mich. 117, 17 N. W. 720. Minnesota: Thelen v. Thelen, 75 Minn. 433, 78 N. W. 108; Bomsta v. Johnson, 38 Minn. 230, 36 N. W. 341. Mississippi: Suter v. Suter, 72 Miss. 345, 16 So. 673. Missouri: Carter v. Carter, 88 Mo. App. 302. Nebraska: Wisdom v. Wisdom, 24 Neb. 551, 39 N. W. 594, 8 Am. St. Rep. 215. New Hampshire: Leith v. Leith, 39 N. H. 20. New Jersey: Doughty v. Doughty, 28 N. J. Eq. 581; Flower v. Flower, 42 N. J. Eq. 152, 7 Atl. 669; McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. [104] CHAP. XIX.] JURISDICTION. [§ 199. Leading case. "On the part of the complainant it is claimed that the words 'resident' and 'reside,' as used in the law, do not have the same meaning as the word domicil; that the question of inten- tion cannot be considered in determining such residence, whether with reference to the coming into the state or that of remaining. It is urged with much abihty that the legislature, by making the remaining within the state a required, definite time, to wit, six months, designed to make such time the evi- dence of intention, without reference to the motive of the in- habitancy, or the future design of the party. And it is further claimed that even if this is not the law, then the testimony shows that complainant is a resident within the strictest con- struction of the term, and had been for six months before the filing of her bill. "We cannot concur entirely in the first part of this proposi- tion. The residence contemplated by our law, in these cases, cannot, in our opinion, be that of the sojourner — the visitor — that of one here on business, or for the accomplishing of a particular purpose — with no intention of remaining. The animus manendi must exist, in order to constitute a residence. Not that, in the language of Vattel, 'it shall be a habitation fixed, with the intention of always remaining,' but rather that there shall be a fixed habitation or residence, without any present intention of remo\T.ng therefrom. " The bona fide resident designs and expects to continue his 465; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Magowan v. Magowan, 57 N. J. Eq. 322, 42 Atl. 330, 73 Am. St. Rep. 645; Streitwolf v. Streitwolf 58 N. J. Eq. 563, 43 Atl. 683, 78 Am. St. Rep. 630. New York: Bell v. Bell, 4 App. Div. 527, affirmed in 157 X. Y. 719, 53 N. E. 1123, and 181 U. S. 175, 45 L. ed. 864; Winston v. Winston, 165 N. Y. 553, 59 N. E. 273. See Appendix, p. 459. Ohio: Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507. Oklahoma: Beach v. Beach, 4 Okla. 359, 46 Pac. 514. Pennsylvania: Appeal of Zerfass, 135 Pa. St. 522, 19 Atl. 1056. Rhode Island: State v. Watson, 20 R. I. 354, 39 Atl. 193, 78 Am. St. Rep. 871; Petition of Vetterlein, 14 R. I. 378. [105] § 199.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIX. home where he brings liis suit. The one who has a residence temporary and fugitive in its character, however, leaves so soon as divorced, careless of any fraud he may have perpe- trated, or any imposition practiced. " But, not to further enlarge here, let us next ascertain what 'the approved usage of the language' would dictate in givuig this construction. And here we may remark, that such is the character of our language that nearly, and indeed most of the words in general use, will be found to vary in meaning, according to the context or connection in which they are used. This might be illustrated by a very large reference. Take the words 'settlement,' 'sentiment,' 'right,' 'apparent,' 'rea- sonable,' 'loud,' 'levity,' and 'restraint,' as an illustration. " Many of these words we have selected at random from the chapter regulating divorce and alimony; and the curious, by giving these words their frequent conceded meaning, without reference to the connection, will readily see the change or jar- gon that would be made in this chapter. So it is with the word reside or resident, in speaking of its construction from the ap- proved usage of the language. Webster's definition is, 'to dwell permanently, or for a length of time; to have a settled abode for a time. When the word is applied to the natives of a state, or others who reside in it as permanent citizens, we use it only with reference to the part of a city or country in which a man dwells. One who resides or dwells in a place for some time. A man lodges, stays, remains, abides, for a day or a very short time, but reside implies a longer time, though not definite. To set, to settle.' It will be observed that the learned lexicographer uses the word 'dwell' in this definition. The definition of that is, 'to abide as a permanent,' 'or to in- habit for a time;' 'to live in a place.' Dwell may signify a residence for life. And in this definition he uses the words 'inhabit' and 'live.' To inhabit is to occupy as a place of settled residence; to live is 'to abide, to dwell, to have a set- tled residence in any place.' So that, while no definite time [106] CHAP. XIX.] JLTIISDICTION. [§ 199. is necessarily implied from the word resident or reside, yet permanency is implied, and expressly used in gi\'ing the defi- nition. But take the usage of the word, "When we say a man resides m Iowa, do we mean he is on a \isit or a basiness trip? "UTien we speak of A.'s being a resident of Xew York, do we mean he has gone on a pleasure excursion or to attend to a law suit? If you meet a stranger in our streets, who has been wdthin our state for a year on business, and ask him his residence, he will say 'I reside in New York (or Boston), but I am' at present remaining, staying or sojourning in your state,' He would never tliink of saying, 'I reside in Iowa.' And the truth is, that these words have a signification when applied to the citizen, inhabitant or dweller in a state, that is clear, defi- nite, and well understood ; and approved usage clearly attaches to it more than a mere remaining, sojourning or abiding, with- out a view to permanency or citizenship. We never approve of its use if applied to a person who has no intention to remain in our state, or an affirmative intention of lea\'ing when a particular object is accomplished, or when his business is con- cluded. " Let us now see whether these words have, or have not, a peculiar and appropriate meaning in law. This, we must determine by reference to the text books, the construction given to them by courts, and the connection in which they are gen- erally used. "Bouvier defines the word resident as follows: *A person coming into a place, with an intention to establish his domi- cil or permanent residence, and who in consequence actually remains there. Time is not so essential as the intent.' 2 Law Diet. 468; Domat. Lib. 2, 485. 'Art. 4. The principal domicil of every one is that which he makes the seat and cen- tre of his affairs, and which he does not leave but on some par- ticular occasion, from whence, when absent, he is said to be from home, or when he returns to, he is said to have come home.' 'Art. 5. Since the domicil is the place of one's resi- [107] §199.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP.XIX. dence, it is all one as to the domicil of a person, whether he reside or dwell in his own house, or in that of another, which he leases, or possesses by some other title. And for the same reason, that it is the residence which makes the domicil; he who has a house of his own in a place where he does not reside, has not, for all that, his domicil there.' By the common and canon law, the word residence was peculiarly used in relation to the benefice of the parson and vicar, and his continuance therein. For reading of prayers and preaching, as also for purposes of hospitality, and to maintain the house or cure in repair, he was required to be present, to abide or dwell there; and the word resident is used to show or express this character of permanency or hving. 1 Blackstone, 392. " It will be found by Kent, 76, that the learned author uses the words domicil and residence, in the same connection, not perhaps entirely in the same sense, but speaks of the animus manendi, as essential to the estabUshment of a resident, na- tional character. "In the case of Crawford v. Wilson, 4 Barbour, 520, Paige, J., refers to the fact that in Frost v. Brisbin, 19 Wend. 11, a distinction had been recognized between domicil and residence. He also refers to Vattel's definition of domi- cil. It is also stated that, 'the residence of a foreign minis- ter at the court to which he is accredited, is only a tem- porary residence. He is not then animus manendi. The same may be said of the officers, soldiers and seamen in the army and navy. They may be said to have their domi- cil in one place and their residence in another. But, generally, residence and domicil, mean the same thing. The place where a man carries on his established business, and has his permanent residence, is his domicil. Inhabitance and residence are generally used as synonymous terms. Inhabitancy and residence do not mean precisely the same thing as domicil, when the latter term is applied to succes- sions to personal estate, but they mean a fixed and perma- [108] CHAP. XIX.] JURISDICTION. [§ 199 nent abode or dwelling place for the time being, as contradis- tinguished from a mere temporary locaUty of existence.' Matter of Wrigley, 8 Wend. 140. "It was held in the Matter of Fitzgerald, 2 Caines, 318, that a resident withia the state, was one who had a residence of a permanent and fixed character, not one who had a mere resi- dence of a temporary nature. In Thorndike v. City of Bos- ton, 1 Mete. 245, Shaw, C. J., says: 'The questions of resi- dence, inhabitancy, or domicil, although not in all respects precisely the same, are nearly so, and depend much on the same evidence.' In Cadwallader v. Howell, 3 Harrison, 144, Day- ton, J., says: 'The expression, "fixed residence," is generally used as tantamount to domicil, though I am not prepared to say whether they are or not, in all respects convertible terms.' In Koosevelt v. Kellogg, 20 Johns. 210, Woodworth, J., says: ' A person resident, is defined to be one dwelling or having his abode in any place, an inhabitant, one that resides in a place,' and it was there held, that inhabitant and resident signified the same thing. It is true, that in the subsequent case of Frost V. Brisline, 19 Wend. 11, these definitions were doubted by C. J. Nelson; but while this doubt is expressed, it is there held, 'that a transient visit does not make the resident; that there must be a settled, fixed abode; an intention to remain permanently.' In Spragins v. Houghton, 2 Scam. 377, it is held, that: 'There is no ambiguity in the word resident. Every man is a resident, who has taken up his permanent abode in the state.' This case was very fully argued by able coun- sel, and the whole subject of the meaning of the word citizen, inhabitant, and resident, is very fully reviewed. It is there very clearly recognized, that the term inhabitant, refers to the place of a person's residence, and excludes the idea of an occasional or temporary residence, but contemplates that which is bona fide. "The constitution of Kentucky in 1833, required residence in the state, and actual residence in the county, for a certain [109] § 199.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIX. time, as qualifications for electors. In the celebrated con- tested election case of Letcher v. Moore, in Congress, it was held that the terms there used meant the same as that given to the word 'home' in the vernacular tongue, and the term domicil by the writers on the civil law. But let us look fur- ther into the use of these words and their connection in the constitutions and statutes of different states. In Maine, in their constitution and laws, published in 1819, in defining the qualification of representatives, and in giving jurisdiction in cases of divorce, the words live and reside are used. Ken- tucky, in her new constitution, in speaking of the quaUfication of electors and representatives, uses the word reside. So it is by new constitution of IncUana. Michigan, in the pubUshed laws of 1846, uses the word reside, in speaking of voters, and also of jurisdiction in divorce cases. So does Missouri, in the laws of 1845, on the subject of divorce. We have not exam- ined the statutes of other states. But in those referred to, can it be pretended that a temporary, casual, or fugitive resi- dence was meant, and not a permanent one? We apprehend not. And no case can be found, under these constitutions and laws, that recognizes any such construction. Their framers were aware of the fixed, settled, and well understood meaning of those terms, and hence their use. And here, we would re- mark, that it is seldom, if ever, that we find the word domicil used, in providing for the inhabitancy or residence of the citi- zen, in our constitutions and statutes. It may be found in the Civil Code of Louisiana, and a few other statutes following to some extent, the rules of the civil law, but it is unusual; and we regard it as a legitimate deduction therefrom, that the words resident, reside and inhabitant, which are most gene- rally used, have a legal meaning in such connection ; and that the intention of remaining permanently is an element in de- termining the same— that they include the idea of permanency. Otherwise, we must presume that it was no part of the object of the lawmaker that permanency, or the intention to abide [110] CHAP. XIX.] JURISDICTION. [§ 199. and remain, should be an element in such residence. This we cannot do. " It is true, that the question of intention may at times be ob- scure and difficult of ascertainment. And the same may be said with reference to the word domicil, in the settling of which, it is conceded in the argument here, we must look to the inten- tion. The same difficulty arises with regard to many things depending on intention under the law; and yet, that intention has to be ascertained from the best Ughts presented in each particular case. On this question, as in others, certain acts or circumstances afford presumptive evidence of the intention, and, until rebutted, will be conclusive, while other cases may arise, where such intention must be deduced from a great va- riety of minor circumstances. So that this is, in truth, an argument that is addressed more against the policy of the law and the cUfficulty of its administration, than as tending to militate against the construction here given. " It is doubtless true, that authorities will be found not con- curring in detail with those above cited. Indeed, what is and is not a residence, for various purposes, has been a subject of much controversy. We are not aware, however, of any au- thority that holds that a mere transient, temporary sojourn, with no intention to remain permanently, can constitute a legal residence. " As not maintaining the positions above stated, we are re- ferred by complainant's counsel to Story's Conffict of Laws, section 44: 'Two things,' says the author, 'must concur to constitute domicil; first, a residence; and secondly, the inten- tion of making it the home of the party. There must be the fact and the intent.' We are not able to see that the same author gives any definition to the term resident or residence. The word domicil, we may also suggest, is that used by the old law writers, and even modern text books, as conveying, according to law language, more fully the whole meaning [111] § 199.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIX. arrived at. And yet, as here used and defined, it does not seem to us, that the author can be understood as saying that residence, or the term resident, means a dwelhng, an abiding without reference to intention or permanence. True it is, there must be the fact of the intent. Now, what fact? We answer, the act of abiding; the fact of a dwelUng; a habitation; and having this residence — having an abode — this abode, this dwelhng, then, if the intent exists, the domicil is perfect. In other words, the mere intent, without the fact of residence or abiding, cannot constitute the domicil. Neither can the intent, without having the abode, the home, the place to dwell, constitute the residence. Residence, as there used, we think, has reference to the fact that the citizen or person has a place that, to use an expressive word, is called home, with no present intention of removing therefrom. Not that the person is to remain continuously there, in order to retain his residence or domicil, but if absent, for a long or short time, with the animus revertendi, the domicil still continues. "The case of Home v. Home, 9 Iredell, 99, asserts the same doctrine, as above quoted from Judge Story, and indeed so much of it as relates to this question, will be found to be copied from that work. The judge, however, in that case, says that 'domicil, in its ordinary and familiar use, means the place where a person lives or has his home ; while, in a large sense, it is where he has his true, fixed, and permanent home, to which, when absent from it, he intends to return, and from which he has no present purpose to remove.' In other words, he recog- nizes an ordinary and familiar use of the word domicil, and also its use in an enlarged sense; and lays it down, that the fact of residence must exist, and also an intention. It would be as hard to conceive a residence without a place or locahty to abide, dwell, or live, as it would to conceive of a domicil without the same. And that, in our opinion, is what is meant: and that it is not intended that a man may have a residence, rii2i CHAP. XIX.] JURISDICTION. [§ 200. in legal acceptation, without reference to intention, any more than he can have a domicil."^^ § 200. Residence of parties to suit. In the leading case of Home v. Home, the court says, ''that a residence for however long a time it may be continued, can- not constitute a domicil without the intention of permanently making it a home, nor can the shortness of time in which the new home is enjoyed defeat the acquisition, when accompanied with the intention, for in the latter there would be the factum et animus." ^* A temporary residence in a place for health, pleasure, or for any reason cannot give a domicU. Whether a summer residence or a winter residence is a domicil, is a ques- tion of intention of the occupant, he being allowed to select, as a rule, his domicil. So it is immaterial what kind of a residence the person has, whether owned or rented, large or small, if it is intended for a domicil. ^^ For the purpose of divorce, the general rule of jurisprudence is, that a divorce granted in the place of the domicil of both parties, and there valid, is good everywhere.^" § 201. Different domicil for husband and wife. While it is generally stated that the domicil of the husband is the domicil of the wife, it is also well settled that where there is a cause for a divorce, the wife may acquire such domicil apart from that of the husband as will enable the court to take jurisdiction of the complaint. It has been held also that a wife may acquire a separate domicil whenever it is necessary or proper. ^^ " Hinds V. Hinds, 1 Iowa. 36. 18 Home V. Home, 9 Ired. (N. C.) 99. 19 Abington v. Xorth Bridgewater, 40 Mass. 170; Hairston v. Hairston, 27 Miss. 704; FoUweiler v. Lutz, 112 Pa. St. 107, 2 Atl. 721; Mitchell v. U. S., 88 U. S. 350, 22 L. ed. 584. 20 Clark v. Clark, 62 Mass. 385. 21 Gamer v. Gamer, 56 Md. 127; Burtis v. Burtis, 161 Mass. 508, 37 N. E. 740; Shaw v. Shaw, 98 Mass. 158; Hood v. Hood, 93 Mass. 196, 87 8 [ 113 ] §203.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XIX. § 202, Acquired jurisdiction. While it is settled that a court of one state has no jurisdic- tion over a citizen of, or one having a domicil in, another state, sufficient to enable it to bind by decree such citizen, yet, if one of the parties has a domicil in the state and the court has jurisdiction over him or her, it may sometimes acquire suffi- cient jurisdiction by publication, personal service, or the ap- pearance of the defendant, to enable it to pass upon the ques- tion of divorce as affecting the status of one of its citizens. ^^ The jurisdiction thus acquired is of no value to give any extra- territorial power to its decrees, and they must be limited to the simple determination of the status of the citizens of its own state and no more. Even this authority is strongly denied in some states and by express statute in others. ^^ If the innocent party has retained his original domicil in the state, it is generally held that the court, by constructive or personal notice, may acquire jurisdiction over the absent de- fendant.^^ As the domicil of the wife follows that of the husband, when the husband moves to another state and gains a domicil there, jurisdiction is also acquired over the wife by constructive or personal notice, when she refuses to follow him.^^ § 203. Jurisdiction by appearance. While the consent of either or both parties cannot, of itself, Am. Dec. 709; Ditson v. Ditson, 4 R. 1. 87; Shute v. Sargent (N. H.), 36 Atl. 282. 22 Snyder v. Snyder, 1 W'kly. Notes of Cases (Pa.), 187; Ditson v. Ditson, 4 R. I. 87. 23 Dunham v. Dunham, 57 111. App. 495; Doughty v. Doughty, 27 N. J. Eq. 315; People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132; Cook v. Cook, 56 Wis. 195, 14 N. W. 33, 43 Am. Rep. 706. 24 Standridge v. Standridge, 31 Ga. 223; Burtis v. Burtis, 161 Mass. 508, 37 N. E. 740; Donnelly v. West, 66 How. Pr. (N. Y.) 428; Stephens v. Stephens, 62 Tex. 337. 25 Loker v. Gerald, 157 Mass. 42, 31 N. E. 709, 34 Am. St. Rep. 252, 16 L. R. A. 497. [114] CHAP. XIX.] JURISDICTION. [§ 204. give the court of another state jurisdiction, yet if the court has jurisdiction over the subject matter, by virtue of the domicil of one of the parties, the appearance of the defendant, by himself or by attorney, completes the jurisdiction of the court over his person.^^ § 204. Jurisdiction of chancery to decree ntillity of marriage. A court of equity has no inherent jurisdiction to annul a marriage in the absence of fraud or duress. The annulment of an invalid marriage cannot be decreed upon the application of a third party on the ground that he is the lawful husband of the woman by a prior marriage, which is still in force." 28 Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227; Jones v. Jones, 108 N. Y. 41.5, 15 X. E. 707, 2 Am. St. Rep. 447. ii Ridgely v. Ridgely, 79 Md. 298, 29 Atl. 597, 25 L. R. A. 800 and note. [115] § 206.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XX. CHAPTER XX. PARTIES. 205. Who may be plaintiffs. 206. Who are proper defendants. 207. Incompetency of parties. 208. Incompetent defendants and guardians. § 209. Legal status of wife as a party. 210. Intervening parties. § 205. "Who may be plaintiffs. The right to bring suit for a divorce is limited to the parties to the marriage, in most states to the "innocent party," though in some states the statutes permit either party to bring suit. As a general rule no third person is considered to be so interested in the result of the suit as to be allowed to maintain proceedings.^ § 206. Who are proper defendants. The general rule that no third person is interested in di- vorce proceedings is varied by the circumstances that there may be questions of property rights, the custody and main- tenance of children, and alimony for the wife to be deter- mined. In cases where the property of the defendant is sought to be reached, any person claiming an interest in such property may be joined as a party defendant.^ Aside from property rights, no other consideration makes it proper to join 1 Worthy v. Worthy, 36 Ga. 45, 91 Am. Dec. 758; Mohler v. Shank, 93 Iowa, 273, 61 N. W. 981, 57 Am. St. Rep. 274; Birdzell v. Birdzell, 33 Kan. 433, 6 Pac. 561, 52 Am. Rep. 539; Winslow v. Winslow, 7 Mass. 96; Hoff- man V. Hoffman, 43 Mo. .547. 2 Kashaw v. Kashaw, 3 Cal. 312; Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245; Thurston v. Thurston, .58 Minn. 279, .59 N. W. 1017; Gibson v. Gibson, 46 Wis. 449, 1 N. W. 147; Damon v. Damon, 28 Wis. 510. [116] CHAP. XX.] PARTIES. [§ 207. third persons as defendants. Children may have an interest in the proceedings, which may be in the nature of a property interest, but not such as to permit of joining them as defend- ants.^ The interest of the parents of the parties is not such as to permit of their being joined as defendants, though they were parties to the marriage contract.^ The guardian of a defendant ward should be joined as a party if any question of alimony or property rights is involved,^ § 207. Incompetency of parties. It is well settled that where no property rights are involved an insane person, by himself or by guardian, cannot bring a suit for divorce, as the right is a strictly personal one.^ This doctrine has been modified by the statutes of some states, which permit insane persons to bring suit by guardian.''' A spendthrift may bring a bill for divorce, as it is a personal right, but cannot do so by guardian.^ If a minor wife is of sufficient legal age to contract marriage, she may bring suit to dissolve it.^ § 208. Incompetent defendants and guardians. There are two kinds of guardians who may appear in divorce suits, a guardian appointed generally to care for the estate of the ward and a guardian ad litem, appointed by the court for the purpose of protecting the interests of his ward during the suit. A general guardian may, as a rule, and under modern statutory provisions, come in and defend, where any question 3 Baugh V. Baugh, 37 Mich. 59, 26 Am. Rep. 495; Faulk v. Faulk, 23 Tex. 653. * D'Auvilliers v. De Livaudais, 32 La. Ann. 605. 5 Tiffany v. Tiffany, 84 Iowa, 122, 50 N. W. 554. 6 Worthy v. Worthy, 36 Ga. 45, 91 Am. Dec. 758; Bradford v. Abend, 89 111. 78, 31 Am. Rep. 67; Birdzell v. Birdzell, 33 Kan. 433, 6 Pac. 561, 52 Am. Rep. 539. ^ Cowan v. Cowan, 139 Mass. 377, 1 X. E. 152; Crump v. Morgan, 3 Ired. Eq. (N. C.) 91, 40 Am. Dec. 447; Thayer v. Thayer, 9 R. I. 377. 8 Winslow V. Winslow, 7 Mass. 96; Richardson v. Richardson, 50 Vt. 119. 9 Besore v. Besore, 49 Ga. 378. [117] § 210.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XX. involving the estate of his ward is to be considered. The guardian ad litem is appointed by the court on suggestion, or on its own motion. ^° § 209. Legal status of wife as a party. The disabiUty of coverture is practically removed from the wife under modern decisions and statutory provisions, so that a feme covert may bring suit for divorce without a next friend or guardian ad litem ^^ § 210. Intervening' parties. The co-respondent was not until recently allowed to inter- vene in divorce cases, although his character and reputation were assailed, but the modern tendency is to allow such in- tervention.^^ In Massachusetts he is allowed by express stat- ute to appear and defend whether libellee does or not.^^ A public officer is required by the statutes of some states to appear in divorce cases to protect the interests of the state. ^'* In Colorado, when the defendant in a divorce case fails to appear, the court must appoint an attorney who shall secure a fair and impartial hearing of the cause. ^^ In Idaho, when the ground of a petition for divorce is in- sanity, the district attorney must defend. ^^ In Indiana, by act of the legislature of 1903, it is the duty of the prosecuting attorney to appear and resist a petition for divorce if not contested.^'' 10 Heller v. Heller, 6 How. Pr. (N. Y.) 194; Stratford v. Stratford, 92 N. C. 297. 11 Jones V. Jones, 18 Me. 308, 36 Am. Dec. 723; Amos v. Amos, 4 N. J. Eq. 171; Wright v. Wright, 3 Tex. 168. 12 Clay V. Clay, 21 Hun (N. Y.), 609. 13 Mass. Rev. Laws, c. 152, § 9. 14 Creamer v. Creamer, 36 Ga. 618; State v. Brinnemar, 120 Ind. 357, 22 N. E. 332; Scott v. Scott, 17 Ind. 309; Willcox v. Wayne Circuit Judge, 83 Mich. 1, 47 N. W. 29; Eggerth v. Eggerth, 15 Ore. 626, 16 Pac. 650. 15 3 Mills Ann. Stat. p. 400; Colo. Laws (1893), pp. 238, 239. 16 Ida. Code Civil Proc. §3328. " Ind. Act of 1903, pp. 393, 394. [118] CHAP. XX.] PARTIES. [§ 210. In Michigan, if th-^re are children under the age of fourteen years, it is the duty of the prosecuting attorney to intervene. ^^ In Oregon, the state is constituted a party in divorce suits and it is the duty of the district attorney to prevent fraud or collusion and to control the proceedings for the de- fence.^^ In Utah, when the ground of a petition for divorce is the insanity of defendant, the county attorney must defend.^" In Washington, it is the duty of the district attorney to control the defence. ^^ 18 3 Miller's Comp. Laws (1897), p. 2665. 19 1 Ore. Codes & Stat. (1902), p. 456. 20 Utah Laws (1903), pp. 39, 40. 21 2 Wash. Ann. Codes & Stat. (1897), p. 1600. [119] § 211.] THE LAW OF MARRIAGE AND DIVORCE. [cHAP. XXI. CHAPTER XXL PLEADINGS AND PROCEEDINGS FOR DIVORCE. 211. Venue. 212. Drawing libel. 213. Who may sign libel. 214. Verification of libel. Any number of causes may be inserted. Entry and order of notice. Who may serve process. 218. Personal service. 219. Notice by publication or con- structive notice. Notice by registered letter. Personal service outside of state. 215. 216. 217. 220 221 § 222. Acceptance of service. 223. Identifying witness. 224. Proof of service. Validity of decree obtained on publication or service outside of the state where defendant did not appear. Regularity in service. 227. Criminal provisions. 228. Contingent fee in divorce cases. 229. Amenability to charge of libel. 225. 226. §211. Venue. The statutes of the different states plainly set forth the venue in actions for divorce. In a few states the petition may be brought in any county within the state, but, as a rule, libels for divorce must be heard and determined in a court of the county in which one of the parties lives, except when the libel- lant has left the county in which the parties have lived to- gether, the adverse party still living therein, the libel may be heard and determined in the court having jurisdiction for that county. Careful attention should be paid to local statutes.^ 1 Way V. Way, 64 111. 406; Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122, 46 Am. Rep. 108; Glaude v. Peat, 43 La. Ann. 161, 8 So. 884; Harding V. Alden, 9 Me. 140, 23 Am. Dec. 549; Banister v. Banister, 150 Mass. 280, 22 N. E. 900; Hanson v. Hanson, 111 Mass. 158; Brown v. Brown, 10 Neb. 349, 6 N. W. 397; Sherwood's Appeal, 17 Wkly. Notes of Cases (Pa.), 338, 4 Atl. 455. [ 120 ] CHAP. XXI.] PLEADINGS AND PROCEEDINGS FOR DIVORCE. [§ 212. § 212. Drawing libel. Proceedings for divorce are commenced by drawing the bill of complaint, petition, or libel, which must set forth the names of the parties; when and where they were married; the present residence of both parties; the cause of action; the place where the cause of action accrued ; and that the petitioner had always been true to his or her marriage vows. If there are children there should be a prayer asking for the care and custody of the children. If the petitioner seeks alimony there should be a prayer requesting that he or she may be allowed alimony pendente lite, or permanent alimony as the case may be. In case the petitioner is a woman, she may ask that an order be issued restraining the husband from interfering with her property or person during the pendency of the libel, and she may further pray that an attachment may issue on the real or personal property of the defendant to secure alimony. In stating the allegations in the libel or petition, great care should always be taken to follow the language of the statutes.^ § 213. Who may sign libel. In most states the libel or petition must be signed by the libellant or petitioner, if of sound mind and of the age of legal consent to marry. A libel cannot be sustained if signed by a guardian or by an attorney, although the attorney was specially empowered to sign it.^ In some states, however, the attorney may sign the petition or libel, but it is always better that the petitioning party should sign. § 214. Verification of libel. In most states it is not necessary that the libel or petition should be sworn to."* Where a particular method of verifica- 2 Stewart v. Stewart, 2 Swan (Tenn.), 591; Home v. Home, 1 Tenn. Ch. 259; Ward v. Ward, 1 Tenn. Ch. 262; Hare v. Hare, 10 Tex. 355. 3 Gould V. Gould, 42 Mass. 382; Winslow v. Winslow, 7 Mass. 96; Willard V. Willard, 4 Mass. 506; Daniels v. Daniels, 56 N. H. 219; Richardson v. Richardson, 50 Vt. 119. * Musselman v. Musselman, 44 Ind. 106. [121] § 217.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXI. tion is prescribed, it must be strictly followed, but if none is provided the usual form in civil cases will suffice.^ In Rhode Island, the petition must be signed and sworn to by the petitioner, if of sound mind and of legal age to con- tract marriage, otherwise after notice to the party in whose name the petition shall be filed, the court may allow such peti- tion to be signed and sworn to by a resident guardian or next friend.^ § 215. Any number of causes may be inserted. Any number of legal causes for divorce may be inserted in the libel, and satisfactory proof of any one or more of them, in the absence of a prevailing defence, will be sufficient to warrant the granting of a decree.'' § 216. Entry and order of notice. After the libel has been drawn, it must be filed in the office of the clerk of the court for the county having jurisdiction, and in most states, the clerk issues the order of notice to the defendant.* § 217. Who may serve process. Where the method and time of serving summons is regu- lated by statute, but no provision is made as to who may serve the same, the presumption is that it was the intention of the legislature that it be served by the same officer who serves other writs and summonses.^ Under such a statute a constable or a disinterested person cannot serve the summons, unless by a special order of court. ^" Where a number of days 6 Kelly V. Kelly, 18 Nev. 49, 1 Pac. 194, 51 Am. Rep. 732; Hoffman v. Hoffman, 30 Pa. St. 417; Burdick v. Burdick, 7 Wash. 533, 35 Pac. 415. «R. I. Public Laws (1902), c. 971, § 3. 7 Morris v. Morris, 20 Ala. 168; Quarles v. Quarles, 19 Ala. 363; Young V. Young, 4 Mass. 430. 8 Anonymous, 5 Mass. 197; Randall v. Randall, 7 Mass. 502; Labotiere V. Labotiere, 8 Mass. 382; Mace v. Mace, 7 Mass. 212. 9 SpafTord v. Spafford, 16 Vt. 511. 10 Brown v. Brown, 15 Mass. 389; Leavitt v. Leavitt, 135 Mass. 191. [122] CHAP, XXI.] PLEADINGS AND PROCEEDINGS FOR DIVORCE. [§ 218. service is specified by law, a service within a less number of days does not furnish ground for quashing the writ, but it will be continued for further service. ^^ § 218. Personal service. In all cases where the defendant is a resident of the state, he must be served personally with the summons and in most states with a certified copy of the libel. It is not personal service to leave at the last and usual place of abode of the libellee an attested copy of the libel, nor is a reading of it, where personal service is ordered with the summons. ^^ § 219. Notice by publication or constructive notice. If the bill alleges that the defendant is a nonresident, the law usually provides that constructive service of notice by publication shall be made.^^ Notice by publication does not give the court jurisdiction over the defendant, unless he or she voluntarily appears. If, however, he or she has been regularly summoned, the court has jurisdiction to pass a decree. ^^ § 220. Notice by registered letter. Beside notice by publication, the court may order that a copy of the libel be mailed by registered letter to the last known address of the defendant, and the registered receipt, with the signature of the defendant, may be used as evidence that the defendant received the letter, provided the hand- writing of the defendant can be proved to the satisfaction of the court. ^^ " Bratton v. Bratton, 79 Ind. 588. 12 Welch V. Welch, 16 Ark. 527; Smith v. Smith, 9 Mass. 422; RandaU v. Randall, 7 Mass. 502. 13 Homston v. Homston, 3 Mass. 159; Wanamaker v. Wanamaker, 10 Phila. (Pa.) 466; Ditson v. Ditson, 4 R. I. 87. " Gamer v. Gamer, 56 Md. 127. See Appendix, p. 459. 15 See divorcG laws of various states, infra, p. 233. [123] § 224.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXI. § 221. Personal service outside of state. In some states the statutes provide that personal service may be made outside the state, and such service is equivalent to service by publication. It may be done in addition to the publication and will be considered actual notice, which is always deemed desirable in divorce cases. ^* The New York courts will not recognize a decree of divorce granted against a resident of the state of New York, unless he or she was personally served with notice, and this must be done in addition to publication. The weight of authority favors this rule.^^ § 222. Acceptance of service. An acceptance of service in uncontested cases is not suffi- cient, as it may give rise to a suspicion of collusion. The provisions as to service must be strictly complied with.^* § 223. Identifying witness. In some states the law requires that, in serving a libel for divorce, an identifying witness shall accompany the officer when he serves the libel to point out the defendant, that service may be made on the right party. Such witness must be a person who knows both parties, and knows that they are reported to be husband and wife.^® § 224. Proof of service. If the defendant is a nonresident, the record should contain proof that the notice was duly published according to the order of the court for the required length of time, and that the statute was complied with.^" Where the statute provides that a copy of the libel or the summons be mailed to the last known 16 Burns v. Burns, 61 Mo. App. 612; Doughty v. Doughty, 28 N. J. Eq. 581. 17 See divorce laws of New York, infra, p. 305. See Appendix, p. 459. 18 Bittinger v. Bittinger, 4 Pa. Dist. Rep. 441 ; Weatherbee v. Weatherbee, 20 Wis. 499. 19 See divorce laws of various states, infra, p. 238. 20 Burns v. Burns, 61 Mo. App. 612. See Appendix, p. 459. [124] CHAP. XXI.] PLEADINGS AND PROCEEDINGS FOR DIVORCE. [§ 225. address of the defendant, and the letter was addressed, "Mrs. R. L. Smith," at the post office where the defendant was always known and addressed as "Mrs. Asahel L. Smith," it is not enough to establish a valid constructive service.^^ The proof of service must comply with the local statute. No variances as to time, name, or address will be permitted.^^ § 225. Validity of decree obtained on publication or service out- side of the state where defendant did not appear. It has been held, in Louisiapa, that where a divorce a vinculo matrimonii is sought by one of the parties to a marriage that was celebrated in Louisiana, conformably to Louisiana laws, against the other party, who is an absentee, permanently residing beyond the territorial limits thereof, a court of Louisi- ana has ample jurisdiction and authority to decide the issue, it involving a civil status; and that jurisdiction attracts to it authority to bring such absentee into court by means of sub- stituted service of citation, and subject him to the judgment therein pronounced.^^ § 226. Regularity in service. The requirements of the statute must be strictly complied with in every case, and any irregularity in the service, either personally or by publication, will be held insufficient service. Thus, misprint of a name in the copy published will invalidate the service.^'* But the defect may be waived if the defend- ant voluntarily appears. ^^ § 227. Criminal provisions. Some states have passed criminal statutes providing 21 Smith V. Smith, 4 Greene (Iowa), 266. 22 Smith V. Smith, 4 Greene (Iowa), 266; Jenne v. Jenne, 7 Mass. 94; Burns v. Burns, 61 Mo. App. 612; Stone v. Stone, 25 N. J. Eq. 445. 23 Butler V. Washington, 45 La. Ann. 279, 19 L. R. A. 814 and note. 24 Jenne v. Jenne, 7 Mass. 94. 25 Stone V. Stone, 25 N. J. Eq. 445; Rouse v. Rouse, 47 Iowa, 422; Jamieson V. Jamieson, 53 How. Pr. (N. Y.) 112. [125] § 228.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXI. (a) That when a divorce is granted for adultery or other cause constituting a criminal offence, committed within the state and within the time prescribed by law for making complaints and finding indictments therefor, the court granting the di- vorce may, in its discretion, cause notice of such facts to be given by the clerk of the court to the district attorney for the county in which such an offence was found to have been com- mitted, together with a list of the witnesses proving such offence, and any other information which the court may deem proper, and thereupon, it shall be the duty of the district attorney to cause complaint of the offence to be made before some magistrate having jurisdiction thereof, or to present the evidence thereon to the grand jury. (6) If persons divorced from the bonds of matrimony cohabit as husband and wife or live together in the same house, they shall be deemed to be guUty of adultery, (c) Whoever falsely personates another or wilfully and fraudulently procures a person to personate another, or fraudulently procures false testimony to be given, or makes a false or fraudulent return of service of process, in a suit for divorce, or any proceedings concerned therewith, shall be punished by fine or imprisonment.^® § 228. Contingent fee in divorce cases. It has been held that a contract between the attorney and the client, providing for a percentage of what should be re- covered in a divorce case, the minimum amount of which was fixed at a certain sum in case of a settlement, is void as against public policy. Public policy is interested in main- taining the famUy relation, and where differences have arisen which threaten disruption, the good of society demands a reconciliation, if practicable or possible, and contracts like the one in question tend directly to prevent such reconciliation. If no contract was made except the void contract, the attorney 26 See Mass. Rev. Laws, c. 152. [126] CHAP. XXI.] PLEADINGS AND PROCEEDINGS FOR DIVORCE. [§ 229. would be entitled to recover what his services were reasonably worth.^^ § 229. Amenability to charge of libel. Naming a person with whom one of the parties has com- mitted adultery, in a divorce proceeding before a court having jurisdiction of the parties and subject-matter, is absolutely privileged and is not actionable.^* 27 McCurdy v. Dillon, (Mich.), 98 X. W. 747. 28 Jones V. Brownlee, 161 Mo. 258, 61 S. W. 795, 53 L. R. A. 445. [127] § 231.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXII. CHAPTER XXII. INTERMEDIATE PROCESS. 230. Cross-bill, libel, or petition. 231. Contest by guardian. 232. Amendments discretionary. 233. Interlocutory orders. § 234. Interlocutory decrees. 235. Protection of wife pending suit. 236. Bill of particulars. § 230. Cross-bill, libel, or petition. It is generally provided by statute that the defendant, who may have a cause for divorce, may file with his answer to the complaint of the plaintiff a cross-pleading setting forth the grounds for his action and such other facts and allegations as may be required. The cross-pleading may contain the answer, though some courts hold that the libel should be answered before a cross-libel is filed. ^ The defendant, in his cross- pleading, may pray for any kind of relief in the power of the court, and there should be a general denial of the allegations made by the plaintiff.- It is not necessary to allege domicil, residence, or other jurisdictional facts, as the court having both parties before it has jurisdiction.^ § 231. Contest by guardian. In Massachusetts, the court has jurisdiction to entertain a petition filed by a third party representing that a libellant for 1 Gilpin V. Gilpin, 12 Colo. 504, 21 Pac. 612; Glasscock v. Glasscock, 94 Ind. 163; Hoffman v. Hoffman, 43 Mo. 547; Harrison v. Harrison, 46 N. J. Eq. 75, 19 Atl. 126. 2Mott V. Mott, 82 Cal. 413, 22 Pac. 1140; Wadsworth v. Wadsworth, 81 Cal. 182, 22 Pac. 648, 15 Am. St. Rep. 38; Butler v. Butler, 38 N. J. Eq. 626; Pease v. Pease, 72 Wis. 136, 39 N. W. 133. 3Leseuerv. Leseuer, 31 Barb. (N. Y.) 330; Glutton v. Glutton, 108 Mich. 267, 66N.W. 52. [128] CHAP. XXII.] INTERMEDIATE PROCESS. [§ 232. divorce is insane; and, if such incapacity is established to the satisfaction of the court, it will appoint a guardian ad litem to conduct the cause. ^ The appointment by the court of a guardian ad litem for a respondent to a libel, on the ground of insanity, is 'prima facie evidence of the respondent's insanity in any subsequent stage of the cause.^ § 232. Amendments discretionary. Amendments to the pleadings may be made at any time in the discretion of the court, with or without terms, and the exercise of such discretion is not a ground of exception,* Thus, a bill for divorce for adultery may be amended by alleging cruelty as a cause for separation.'^ § 233. Interlocutory orders. In all proceedings for divorce and for the custody of minor children, interlocutory orders may be passed by a single judge, either in term time or vacation.* § 234. Interlocutory decrees. In some states, after notice by publication or the summons has been served and the time given by statute for appearing has expired, if the defendant fails to appear, the complainant is entitled to a decree pro confesso and will be allowed to take testimony ex parte.^ § 235. Protection of wife pending suit. In Massachusetts, the court sitting in any county may, on the petition of the wife, prohibit the husband from imposing 4 Denny v. Denny, 90 Mass. 311. 5 Little V. Little, 79 Mass. 264. « Harrington v. Harrington, 107 Mass. 329; Ford v. Ford, 104 Mass. 198; Com. V. Giles, 67 Mass. 466; Gardner v. Gardner, 68 Mass. 434; Whipp v. Whipp, 54 N. H. 580; Shay v. Shay, 9 Phila. (Pa.) 521. 7 Anderson v. Anderson, 4 Me. 100, 16 Am. Dec. 237. 8 See Form No. 25, p. 368. 9 See divorce laws of the several states, infra, p. 233. 9 [ 129 ] § 236.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXII. any restraint on her personal liberty during the pendency of the libel.i" § 236. Bill of particulars. The defendant in a divorce suit may petition the court for a bill of specifications or particulars, if the pleadings are too vague, as the defendant should have a full opportunity to understand the nature of the charge and to prepare his defence. The court may in its discretion allow the bill. So where a libel charged, generally, that the respondent had committed various acts of adultery, at divers times, with persons unknown, during a period of eight years, the court ordered the libellant to file a bill of particulars.^^ And one who has furnished a bill of specifications or particulars is confined to the bill.^^ Evidence of acts of adultery not mentioned in the specifica- tions, is not admissible. ^^ 10 Mass. Rev. Laws, c. 152, § 15. 11 Adams v. Adams, 33 Mass. 254. 12 Com. V. Snelling, 32 Mass. 321 ; Harrington v. Harrington, 107 Mass. 329; Gardner v. Gardner, 68 Mass. 434. 13 Com. V. Giles, 67 Mass. 466. [130] CHAP. XXIII.] EVIDENCE. [§ 237. CHAPTER XXin. EVIDENCE. 237. Burden of proof in general. 238. Pleadings as evidence. 239. Parties as witnesses. 240. Domicil and residence. 241. On plea of jurisdiction. 242. Presumption in general. § 243. Evidence of libellee. 244. Corroboration. 245. Degree of proof. 246. Depositions. 247. Records of conviction. 248. Evidence of young children. § 237. Burden of proof in general. The burden of proof in divorce cases is upon the plaintiff. He must prove all the material allegations of the libel by the best evidence procurable. Nothing will be assumed by the court to be determined that is not actually proved.^ In many states, before the court can grant a divorce on the ground of adultery, it must affirmatively appear by satisfactory proof of good character or otherwise, that the plaintiff has not been guilty of the same crime.^ § 238. Pleadings as evidence. Allegations of recrimination, contained in the pleadings in cross-libels for divorce, cannot be introduced in evidence as admissions of the facts therein alleged.^ Neither can state- 1 Harrington r. Harrington, 107 Mass. 329; German v. German, 57 Mich. 256, 23 N. W. 802; Fischer v. Fischer, 18 X. J. Eq. 300; Linden v. Linden, 36 Barb. (N. Y.) 61 ; McCulloch v. McCulloch, 69 Tex. 682, 7 S. W. 593, 5 Am. St. Rep. 93; Hampton v. Hampton, 87 Va. 148, 12 S. E. 340; Gleason V. Gleason, 4 Wis. 64. 2 Dismukes v. Dismukes, 1 Tenn. Ch. 266. 3 Demelman i'. Burton, 176 Mass. 363, 57 N. E. 665; Cameron v. Cameron, 2 Coldw. (Tenn.) 375. [131] § 241.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP, XXIII. ments of complainant for divorce be taken as true because of defendant's failure to answer.^ § 239. Parties as witnesses. In some states, the parties to a divorce suit cannot testify; in other states their testimony must be corroborated. They are not competent for the reason that they are husband and wife, and the policy of the law is not to allow them to testify against each other unless permitted by special statute.^ In suits for nullity of the marriage both parties are competent to testify, for the question to be determined is whether they are husband and wife.^ § 240. Domicil and residence. As the jurisdiction of a court to try a divorce case is based on domicil, evidence is admissible concerning the residence and intention of the parties to establish a domicil, as it will enable the court to determine whether the parties, or either of them, have a legal domicil in the state where such suit is brought.^ § 241. On plea of jurisdiction. Where a plea to the jurisdiction is filed by the defendant, the plaintiff must prove such allegations as to residence, domi- cil, and other jurisdictional facts, as to establish the jurisdic- tion of the court.* * Rie V. Rie, 34 Ark. 37; Scarborough v. Scarborough, 54 Ark. 20, 14 S. W. 1028. 5 Turpin v. State, 55 Md. 462; Anonymous, 58 Miss. 15. 6Le Brun v. Le Brun, 55 Md. 496; Shafto v. Shafto, 28 N. J. Eq. 34; Greenawalt v. McEnelly, 85 Pa. St. 352. 7 Whittaker v. Whittaker, 151 111. 266, 37 N. E. 1017; Albee v. Albee, 141 111. 550, 31 N. E. 153; Calef v. Calef, 54 Me. 365, 92 Am. Dec. 549; Harteau v. Harteau, 31 Mass. 181, 25 Am. Dec. 372. s Harteau v. Harteau, 31 Mass. 181, 25 Am. Dec. 372; Schrow v. Schrow, 103 Mass. 574; De Meli v. De Meli, 120 N. Y. 485, 24 N. E. 996, 17 Am. St. Rep. 652. [ 132] CHAP. XXIII.] EVIDENCE. [§ 246. § 242. Presumption in general. There are some general presumptions in the law of evidence which apply to divorce cases, such as the presumption of in- nocence, the presumption of legality and regularity, and pre- sumptions which have special application, such as arises from the relations of the parties. These are treated under the various titles elsewhere.^ § 243. Evidence of libellee. The evidence of the libellee, as well as the evidence of any other party, is admissible, but it is viewed with the same caution displayed towards the evidence of an interested party. ^° § 244. Corroboration. Some states require evidence in divorce causes to be corrobo- rated. While there is no general rule, aside from statute, requiring corroboration, courts are so reluctant to decide cases on such evidence, it amounts to nearly the same thing, and evidence of parties should be corroborated, when possible. ^^ § 245. Degree of proof. The rules governing the weight and admissibility of evidence on the specific causes for divorce that may be alleged in the libel are the rules of the civil, rather than the criminal courts, and it is not necessary to present such evidence as would be competent to establish guilt in a criminal court. ^^ § 246. Depositions. The statutes of most states provide for taking the testimony of a witness in a divorce case by deposition, as well as orally, and also provide the manner and form of taking such deposi- 9 See Validity of Marriage, supra, p. 12; Nullity, supra, p. 34; Adultery, supra, p. 41. 10 Harrington v. Harrington, 107 Mass. 329. " Sylvis V. Sylvis, 11 Colo. 319, 17 Pac. 912; Robbins v. Robbins, 100 Mass. 150, 97 Am. Dec. 91. 12 Pittman v. Pittman, 72 111. App. 500; Carters. Carter, 62 111. 439; Powell V. PoweU, 104 Ind. 18, 3 N. E. 611; Smith v. Smith, 5 Ore. 186. [133] § 247.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXIII. tions. But if there are no such provisions, the deposition may be taken in the same manner and subject to the same restric- tions as depositions in other civil cases.^^ § 247. Records of conviction, A plea of guilty to a charge of assault and battery, if fol- lowed by a conviction, may be shown by the record as a judi- cial admission of the fact.^^ When the plea is not guilty or nolo contendre, it is not admissible. ^^ § 248. Evidence of young children. The evidence of young children is admitted in divorce cases as in other cases, making due allowance in the case of the children of the parties for natural interest and possible bias, though in practice, the evidence of these latter is rarely ad- mitted, if any other evidence can be procured, the claim being made that children should be trained to have equal respect for both parents.^'' 13 Whipple V. Whipple, 43 N. H. 235; BeU v. BeU, 9 Wkly. Notes of Cases (Pa.), 509; Hassett v. Hassett, 5 Pa. Dist. Ct. 604; Richmond v. Richmond, 10 Yerg. (Tenn.) 343. 14 Bradley v. Bradley, 11 Me. 367; Burgess v. Burgess, 47 N. H. 395. 15 Bradley v. Bradley, 11 Me. 367. 10 Kneale v. I^eale, 28 Mich. 344. See also Draper v. Draper, 68 III. 17. [134] CHAP. XXIV.] DEFENCES. [§ 249. CHAPTER XXIV. DEFENCES. 249. Collusion. 250. Condonation. 251. Revival of condoned offence. 252. Delay in bringing suit. 253. Recrimination. 254. Mistake. § 255. Notice of grounds. 256. Insanity. 257. Drunkenness. 258. Provocation. 259. Justification or excuse. 260. Invalidity of marriage. § 249. Collusion. Collusion means a mutual consent of the parties to defraud or to impose upon the court by agreeing to make up a false case, or consenting to one or the other committing some act upon which an action could be founded, and agreeing that one or the other may get a divorce, when no real injury has been done either of them. If the court is satisfied from the conduct of the parties that they are in collusion the case will be dismissed, for divorces are granted only in favor of the in- jured and against the guilty party. ^ In many cases both parties are desirous of the same thing, namely, a separation, and in such cases the libels or petitions are usually uncon- tested and the temptation to collusion is great, and the danger that exaggerations or falsehoods will be exposed is small. For this reason the courts are very careful to see that they are not imposed upon.^ Fraud, however, is never presumed, but, if it appears at any stage of the proceedings, the libel may be dismissed. To bring before a court of justice an action for a divorce for a cause which does not exist, or, which has 1 Hamilton v. Hamilton, 89 111. 345. 2 Wilde V. Wilde, 37 Xeb. 891, 56 X. W. 724. [135] § 249.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXIV. been brought about for that special purpose, is a gross fraud upon the court, and the parties .render themselves liable for contempt of court. ^ And if it appears that there has been any agreement to assist or even to oppose each other, no divorce will be granted. Collusion is a defence which a court will interpose sua sponte, where it is developed. The law only permits, ex neces- sitate rei, but does not favor, the granting of divorces; it is the policy of the law to preserve sacred, the marriage tie; and it will never, knowingly, favor the granting of a decree where the parties consent to it without adequate cause, or where they collude together to secure that end. Cases have not been unknown, among unclean persons, of conventional committing of adultery by one of the parties in order to secure the divorce, coveted by both; but every such case, if it could be estab- lished, would be denied, or set aside if granted; and a court would be applauded, which would visit with the utmost rigor, as for contempt of court, all persons who should trifle with its dignity and powers. A divorce obtained by collusion is not only contrary to public policy, but it is an evasion of justice, and any agreement, therefore, between husband and wife, in consideration of one or the other of them withdrawing or not making any opposition to a suit brought by the other for divorce is void, and this applies to any agreement intended to facilitate the procuring of a divorce."^ And an agreement between a man and his wife made the day after he had been awarded a decree of divorce, whereby he agrees to pay her an annuity if she will not move for a new trial is void as tending to facilitate divorce.^ So where a wife agreed not to sue for alimony for a year the court held the contract void.^ 3 Smith V. Brown, 3 Tex. 360. 4 Hamilton v. Hamilton, 89 III. 349; Muckenburg v. Holler, 29 Ind. 139; Comstock v. Adams, 23 Kan. 513; Wilde v. Wilde, 37 Neb. 891, 56 N. W. 724; Stoutenburg v. Lybrand, 13 Ohio St. 228. 6 Blank V. Nohl, 112 Mo. 159, 19 S. W. 65, 20 S. W. 477. e Evans v. Evans, 93 Ky. 510, 20 S. W. 605. [136] CHAP. XXI V\] DEFENCES. [§ 250. § 250. Condonation. Condonation is forgiveness by a husband or wife of a viola- tion by the other of the marriage vows and obligations, as of acts of adultery or cruelty, with an implied condition that the injury shall not be repeated. It is either express or implied.^ It is express when signified by words or writing, and is im- plied when it may be inferred as a presumption of law from the acts of the injured party. It is always implied from cohabitation after the commission of the offence, and after the complainant has knowledge of the fact, or believes it on reasonable grounds.* In certain cases, however, the legal presumption of the remission of the offence, arising from co- habitation, may be rebutted by evidence, especially in favor of the wife, when the offence is less heinous than infidelity, and when circumstances render immediate separation impracticable or unadvisable ; for delay may be justified by the necessity which compels it, or by a laudable desire on her part to avoid a rup- ture of the family ties till forbearance ceases to be a virtue. Condonation being conditional, the remedy for the original offence is revived by a breach of the condition.^ It has some- times been said that the doctrine of condonation arising from continued cohabitation was inapplicable to cases of a libel by the wife seeking a divorce for extreme cruelty. But the better established rule seems to be that cruelty, as well as adultery, may be the subject of condonation.^" If the wife commits adultery, and the husband afterwards lives with her, a divorce will not be granted. ^^ In some states the defence of condonation can only be set up where the charge is adultery; it does not apply to a charge of cruelty.^^ 7 Quincy v. Quincy, 10 X. H. 272. 8 Delliber v. Delliber, 9 Conn. 235; Rogers v. Rogers, 122 Mass. 423. 9 Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227; Armstrong v. Arm- strong, 27 Ind. 186. loCreyts v. Creyts, 133 Mich., 4, 94 N. W. 383. 11 Thomas v. Thomas, 2 Coldw. (Tenn.) 123. 12 Steel V. Steel, 11 Wkly. Notes of Cases (Pa.), 21. [137] § 251.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXIV. § 251. Revival of condoned offence. Condonation is forgiveness. It is forgiveness based upon the presumption and belief that the guilty party has repented ; but, if the subsequent acts of the guilty party show that there was no repentance, it is not a bar.^^ Condonation for any offence is a conditional forgiveness, and if the offence be re- peated, it revives the right of action.^'' It has been held that where the wife cohabited with her husband after having discovered in her husband's vest a re- ceipted bill for the board of the husband and another woman at a hotel, and after his admission that he was present at the hotel on that date, such cohabitation did not show condona- tion of any adultery on his part, the husband having denied that he was guilty of adultery, and the wife having no knowl- edge as to the location and surroundings of the rooms to which the husband and the woman were assigned. ^^ But where condonation is interposed as a defence to a suit for divorce on the ground of adultery, the plaintiff will be allowed to file an amended petition charging the defendant with acts of adultery subsequent to the alleged condonation and since the com- mencement of the suit. If the adultery had been committed before the suit, the offence will be incorporated in the petition by amendment, but if after, it can be introduced by a supple- mentary petition. ^^ Condonation is a frequent defence. Its meaning is that the offended forgives the offending party with full knowledge of the delictum, but only upon condition that the offence be 13 Turner V. Turner, 44 Ala. 437; Douglass v. Douglass, 81 Iowa, 258, 47 N. W. 92; Sewall v. SewaU, 122 Mass. 156, 23 Am. Rep. 299; Timerson v. Timerson, 2 How. Pr. (N. S.), (N. Y.) 526; Nogees v. Nogees, 7 Tex. 538, 58 Am. Dec. 78. 14 Hughes V. Hughes, 19 Ala. 307; Williams v. Williams, 23 Fla. 324, 2 So. 768; Farnham v. Farnham, 73 111. 497; Taylor v. Taylor, 5 N. D. 58, 63 N. W. 893; Eggarth v. Eggarth, 15 Ore. 626, 16 Pac. 650. 15 Harris v. Harris, 82 N. Y. Supp. 568. wLutz V. Lutz, 52 N. J. Eq. 241, 28 Atl. 315. [ 138 ] CHAP. XXIV.] DEFENCES. [§ 252. not repeated. The most common case of condonation is where one party commits adulter}-, and the other party, fully aware of it, cohabits, afterwards, with the offender; this is condona- tion or presumed forgiveness. No divorce will be allowed unless the delinquency be repeated. Of course it must be a voluntary cohabitation; if obtained through fear it will be futile. Other causes for divorce as cruelty may likewise be condoned; but the law has not been very completely adjudged in such cases. ^'' § 252. Delay in bringmg: suit. Many states have passed statutes regulating the time within which divorces on certain grounds shall be brought. In those states which have no statutory provisions governing the time within which an action shall be begun, an unreasonable delay in bringing the suit may raise a presumption of connivance, collusion, or condonation and bar the action, but this delay may be satisfactorily explained by showing that it was due to poverty, or to avoid scandal, or any other satisfactory reason.^* Delay to sue is sometimes set up as a defence ; as if a husband is cognizant of and acquiesces in his wife's adultery for a long time; but cruelty, drunkenness, etc., would not seem to be bound by this rule. But, in the absence of statute, providing the time within which an action for divorce shall be brought upon certain grounds, delay is not always a good defence.^^ § 253. Kecrimination. Recrimination is allowable as a defence, and will if sustained defeat the libel; for a party seeking a divorce must come into court with clean hands.^" The principle on which this plea 17 Famham r. Farnham, 73 111. 497; Taylor v. Taylor, 5 N. D. 58, 63 N. W. 893. 18 Clark V. Clark, 97 Mass. 331; Derby v. Derby, 21 X. J. Eq. 57; Hampton V. Hampton, 87 Va. 148, 161, 12 S. E. 340. 19 Clark V. Clark, 97 Mass. 331; Cummins v. Cummins, 15 X. J. Eq. 138. 2oCumming v. Cumming, 135 Mass. 386; Handy v. Handy, 124 Mass. 394; Hoffman v. Hoffman, 43 Mo. 547; Hale v. Hale, 47 Tex. 336, 26 Am. Rep. 294. [139] §253.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXIV. of compensatio criminis is allowed is, that a party cannot justly complain of the breach of a contract which he has himself violated.^^ This plea may be sustained on evidence not as strong as might be necessary to sustain a suit for adultery ; and it makes no difference whether the offence, pleaded by way of compensation, were committed before or after the fact charged in the libel. It has been questioned whether a single act of adultery is sufficient to support this plea against a series of adulteries proved on the other side; but the better opinion seems to be that it is. In order to plead recrimination it must be specifically and fully set forth in the answer, ^^ If the plain- tiff is guilty of desertion, he is not entitled to a divorce for the defendant's adultery. ^^ If both parties have committed adul- tery, no decree will be granted.''* Recrimination as a bar to divorce is not limited to a charge of the same nature as that alleged in the libel.^^ Recrimination is one of the most frequent defences. It may be defined as a committal by the complainant of acts which afford sufficient ground for divorce. Thus, if the complainant seeks a divorce on the ground of adultery, proof of adultery on his part, even if it be of a single act, will be an efficient defence; nor does it make any difference which was the first offence, nor how great a degree of guilt exists on the part of defendant, nor can a complainant, if guilty of adultery, obtain a divorce for any cause whatever if recrimination be pleaded and proved. While the above is clear and emphatic, the law with regard to recriminating offences other than adultery is 21 Bast V. Bast, 82 111. 584; Ristine v. Ristine, 4 Rawle (Pa.), 460. 22 Jones V. Jones, 18 N. J. Eq. 33, 90 Am. Dec. 607; Smith v. Smith, 4 Paige (N. Y.), 432, 27 Am. Dec. 75. 23 Johnson V. Johnson, (Tex.) 23 S. W. 1022; Pierce v. Pierce, 70 Vt. 270. 40 Atl. 728. Contra, Huling v. Huling, 38 111. App. 144; Bast v. Bast, 82 111. 584. 24Clapp V. Clapp, 97 Mass. 531. See also Gumming v. Gumming, 135 Mass. 386. 25 Handy v. Handy, 124 Mass. 394; Lyster v. Lyster, 111 Mass. 327; Clapp V. Glapp, 97 Mass. 531; Hall v. Hall, 86 Mass. 39. [140] CHAP. XXIV.] DEFENCES. [§ 253. not so prominently put forth by courts. It is, however, the accepted doctrine by lawyers that recrimination may also apply to other offences against the marital relation than adultery. In Conant v. Conant,^^ the court said, "In this state, the statute has specified certain acts or conduct which shall constitute grounds of divorce, and so far as the matri- monial contract is concerned, the courts cannot distinguish between them, whatever difference there may be in a moral point of view. The several offences, therefore, must be held equally pleadable in bar to the suit for divorce — the one to the other, within the principle of the doctrine of recrimination." So in the case of Halei;. Hale,^^ the court would not say, " that in no case, and under no state of circumstances should a di- vorce be granted, if the plaintiff is also guilty of an act of any character for which the defendant might claim a divorce. There are unquestionably well-established limitations in re- gard to this character of defence in such actions, to which however it is unnecessary for us to specially advert at present. The general doctrine, that recrimination is a valid defence, though the divorce is sought upon other grounds than adultery may, nevertheless, be said, on the very highest authority, to rest in the clearest reason and exact justice." So in Massa- chusetts, a sentence to five years' imprisonment and adultery being equal grounds for dissolving the marriage, one sen- tenced to such imprisonment cannot have a divorce for the other's adultery. The two offences were held to be of the same class and degree.^* Upon a libel for divorce for the cause of adultery, if the respondent would show a like crime committed by the Irbel- lant, to prevent the divorce, he must plead it, or he will not be permitted to give it in evidence.^^ 26 Conant v. Conant, 10 Cal. 249, 256, 70 Am. Dec. 717. 27 Hale V. Hale, 47 Tex. 336, 342, 26 Am. Rep. 294. 28 Handy v. Handy, 124 Mass. 394. 29 Pastoret v. Pastoret, 6 Mass. 276. [141] § 256.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXIV. § 254. Mistake. Mistake to be a defence to a divorce must be a bona fide mistake as to some material matter of fact, and not a mistake as to legal rights as a question of law. If one acts in a certain manner, believing he has a right under the law so to act, it is no defence, but if one acts under the honest belief that certain legal requirements are complied with, when, as a matter of fact, they are not, it may be a defence.^" In Massachusetts, under a decree nisi which became absolute in six months "un- less sufficient cause to the contrary appears," the libellee be- lieving he had a right to marry did so, and it was held the decree could not be made absolute.^^ But when the libellant was led to believe that a decree had been entered as a fact, the decree was made absolute.^^ § 255. Notice of grounds. Where the libellant can be shown to have had such knowl- edge of the habits, disposition, or other matters relating to the libellee, he or she is presumed to have had notice of these facts, and to have entered the married state with such knowledge and notice, and the court will refuse to grant a decree of divorce.^^ ^ § 256. Insanity. The general rule regarding insanity as a defence is that no acts or omissions committed by an insane person can be grounds for a divorce, unless such acts were performed while the de- fendant was in a lucid interval, and it is generally held that the burden of proof will be on the libellant to show lucidity.^^ 30 Moors V. Moors, 121 Mass. 232; Pierce v. Pierce, 160 Mass. 216, 35 N. E. 462; Pratt v. Pratt, 157 Mass. 503, 32 N. E. 747, 21 L. R. A. 97 and note. 31 Moors V. Moors, 121 Mass. 232. 32 Pratt V. Pratt, 157 Mass. 503, 32 N. E. 747, 21 L. R. A. 97 and note. 33 Heintzman v. Heintzman, 15 Pa. Co. Ct. 669. 34 Cohn V. Cohn, 85 Cal. 108, 24 Pac. 659; Wertz v. Wertz, 43 Iowa, 534; Tiffany v. Tiffany, 84 Iowa, 122, 50 N. W. 554; PoweU v. PoweU, 18 Kan. 371, 26 Am. Rep. 774; Hansel v. Hansel, 15 Pa. Co. Ct. 514. [142] CHAP. XXIV.] DEFENCES. [§ 257. But the libellee must be insane and incapable of distinguish- ing between right and wrong and not merely afflicted with a slight mental derangement or depravity of character.^^ § 257. Drunkenness. The court may declare a marriage void on the ground of the party's intoxication at the time of the celebration, if it was not afterwards consummated by cohabitation.^^ § 258. Provocation. It may be shown by way of defence that the acts of the libellee were due to, or incited by, the provoking acts of the libellant, and if this is proved a divorce will not be granted. The degree of provocation must be much stronger than the offence charged to constitute a defence.^' Provocation to be a defence must be greatly in excess of the acts committed by the libellee.^* It must not be merely a display of temper, passion, or abuse.^* A divorce is not a salve to the lover of a domestic fight.**" § 259. Justification or excuse. A wife is not justified in refusing to leave comfortable sur- roundings at the request of her husband to come to live with him, although at the time he had no house to take her to.^^ 35 HiU V. HiU, 27 X. J. Eq. 214; Nichols v. Nichols, 31 Vt. 328, 73 Am. Dec. 352. See also Insanity, supra, p. 142. 36 Selah V. Selah, 23 N. J. Eq. 185. 37 Johnson v. Johnson, 14 Cal. 459; Owen v. Owen, 90 Iowa, 365, 57 N. W. 887; Knight v. Knight, 31 Iowa, 451; Durand v. Her Husband, 4 Mart. (La.) 174; Skolfield v. Skolfield, 86 Me. 31, 29 Atl. 925; German r. German, 57 Mich. 256, 23 X. W. 802; Harper v. Harper, 29 Mo. 301. 38 King I'. King, 28 Ala. 315; Eidenmuller v. EidenmuUer, 37 Cal. 364; Richards v. Richards, 37 Pa. St. 225. 39Ashton V. Gruker, 48 La. Ann. 1194, 20 So. 738; Albert v. Albert, 5 Mont. 577, 6 Pac. 23, 51 Am. Rep. 86; Boeck r. Boeck, 16 Xeb. 196, 20 X. W. 223. 40 Durand v. Her Husband, 4 Mart. (La.) 174; McCahUl v. McCahill, 71 Hun (X. Y.), 224. 41 Messenger v. Messenger, 56 Mo. 329. [143] § 260.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXIV. The wife's fear that she will have too many children is no justification for leaving her husband aild living apart. So mere grossness or rudeness of manner will not justify a de- sertion.'*^ It is no justification for desertion by the wife that she left the husband because his intercourse with her was very fre- quent, when there is no pretence of any peculiar debility or physical infirmity on her part."*^ The fact that the husband is accused of crime or is guilty of it, or that his failure to provide for her is due to a crime, is no justification for deser- tion, as she took him "for better or worse." ''^ A wife is not justified in leaving her husband because he invites members of his family to live in the house.''^ A husband is not justified in deserting his wife because she refused him marital inter- course.^® Refusal to allow a wife to attend a church of which she is a member is not justification for leaving him.''^ Mis- conduct may be a justification for acts of cruelty.'** § 260. Invalidity of marriage. A divorce from the bonds of matrimony will not be decreed until a legal and valid marriage is proved, and the invalidity of the marriage of the parties to the suit may be set up as a defence."*^ 42 I,eavitt V Jt-^1att, Wright, (Ohio) 719; Bryan v. Bryan, 34 Ala. 516. 43 MoocgtfJ^Moores, 16 N. J. Eq. 275. 44.Foy'v. Foy, 35 N. C. 90; Hammond v. Hammond, 15 R. I. 40, 23 Atl. "^'143, 2 Am. St. Rep. 867. 45 Jones V. Jones, 55 Mo. App. 523. 46Reid V. Reid, 21 N. J. Eq. 331. 47 Lawrence v. Lawrence, 3 Paige (N. Y.), 267. 48 Powers V. Powers, 82 N. Y. Supp. 1022. 49 Mangue v. Mangue, 1 Mass. 240; Finn v. Finn, 62 How, Pr. (N. Y.) 83. [144] CHAP. XXV.] DECREES. [§26i CHAPTER XXV. DECREES. 261. Dismissal of libel. 262. General dismissal as bar to subsequent libel. 263. Dismissal without prejudice. 264. Decree of nullity. 265. Decree of affirmation. 266. Decree a vinculo matrimonii. 267. Decree nisi. 268. Decree a mensa et thoro. 269. Divorced woman's right to resume her maiden name or name of former husband. 270. Separate support and main- tenance. 271. Restrictions against marrying after divorce. § 261. Dismissal of libel. Where the court has jurisdiction of the parties and subject- matter, it may dismiss the hbel before a hearing for any cause in its discretion, such as failure to prosecute, a resumption of cohabitation, or condonation, or an agreement between the parties to end the suit; or, after a hearing, when a good de- fence has been shown, such as collusion or recrimmation, and such dismissal will be a bar to future actions upon a cause known at the time of bringing the libel, ^ § 262, General dismissal as bar to subsequent libel. The general dismissal of a libel for insufficiency of proof will bar a subsequent libel. ^ But if new evidence has been discovered, or there has arisen any new ground for a libel, such a dismissal is not a bar,* 1 Fera v. Fera, 98 Mass. 155; Thurston v. Thurston, 99 Mass. 39; Bartlett V. Bartlett, 113 Mass. 312, 18 Am. Rep. 493; Lewis v. Lewis, 106 Mass. 309; Hood V. Hood, 110 Mass. 463; Wagner v. Wagner, 36 Mum. 239, 30 N. W. 766, 2 Bartlett r. Bartlett, 113 Mass. 312, 18 Am. Rep. 493. 3 Morrison v. Morrison, 142 Mass. 361, 8 N, E. 59, 56 Am. Rep. 688; Edgerly v. Edgerly, 112 Mass. 53, 10 [ 145 ] § 266.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXV § 263. Dismissal without prejudice. Sometimes, for errors in the pleadings, lack of evidence, or other cause, libels are dismissed without the merits being heard and determined, or there being any adjudication of the issues involved. Such a dismissal is called a 'Vlismissal with- out prejudice," and it is not a bar to a future libel for the same cause, as the facts have never been determined.'* § 264. Decree of nullity. A decree of nullity declares the marriage alleged to have been contracted to be null and void. In other words, the fact that no marriage ever took place is judicially determined.^ § 265. Decree of affirmation. Where the validity of a marriage is in question, and the mar- riage is declared valid, a decree of affirmation is entered as an adjudication of its validity.^ § 266. Decree a vinculo matrimonii. A decree of absolute divorce from the bonds of matrimony is a full and complete dissolution of the marriage tie, abrogat- ing all marital rights and obligations, and leaving both parties free to marry again. '^ The marriage tie having been legally severed, husband and wife are to all intents and purposes as strangers to each other, and if they afterwards have sexual intercourse, they are guilty of fornication or adultery. Prop- erty rights are restored to the parties as they existed at the time of the marriage as far as practicable, and a decree of di- vorce does not affect any transfer of property made during coverture by the parties, but it forever bars dower and cur- tesy, or any future interest in the other's estate.* A divorce 4 Ashmead v. Ashmead, 23 Kan. 262. 6 See Form No. 41, p. 380. « See Form No. 41c, p. 382 7 Whitsell V. Mills, 6 Ind. 231 ; McCraney v. McCraney, 5 Iowa, 232, 68 Am. Dec. 702; Barber v. Root, 10 Mass. 260; Hunt v. Thompson, 61 Mo. 148. 8 Starr v. Pease, 8 Conn. 541 ; Clark v. Slaughter 38 Miss. 64. [ 146 ] CHAP. XXV.] DECREES. [§267. from the bonds of matrimony will not be decreed unless a legal marriage be proved.^ § 267. Decree nisi. In some states, in the first instance, a decree nisi is entered, which allows a certain time to elapse before the decree is made absolute, at the end of which time it may become absolute, unless in the meantime good cause is shown why the decree should not be made absolute. Only parties interested can appear and show cause. ^° If, at any time before the decree nisi is made absolute, the parties live together again, the decree will be void. A decree nisi does not absolutely dissolve the marriage." § 268. Decree a mensa et thoro. A decree from bed and board is not a dissolution of the marriage tie and the parties may mutually and voluntarily apply to rescind the decree. Until the decree is rescinded, there is complete separation from bed and board and aU rights of cohabitation. ^2 The parties are still regarded as husband and wife.^^ § 269. Divorced woman's right to resume lier maiden name or name of former husband. Most courts are authorized by statute, in granting a divorce to a woman, to allow her to resume her maiden name or that of a former husband, if she prays for it in her petition. If there are no children born of the union, the court usually allows her prayer, but if there are children the court rarely allows her to resume her former name. In South Carolina, where there is no power to grant a divorce, the court refused " Mangue v. Mangue, 1 Mass. 240. 10 Fox V. Davis, 113 Mass. 255, 18 Am. Rep. 476; Sparhawk v. Sparhawk, 114 Mass. 355. " Ames V. Chew, 46 Mass. 320; Dean v. Richmond, 22 Mass. 461. 12 Pierce v. Bumham, 45 Mass. 303. 13 Ellison V. MobUe, 53 Ala. 558. [147] §271.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXV. to change the name of the wife without the consent of the husband.^"* But at common law she may assume her maiden name or any other name which does not interfere with the rights of others.^^ § 270. Separate support and maintenance. In some states, where a wife is living apart from her hus- band for just cause, she may petition the court for separate support and maintenance.^^ § 271. Restrictions against marrying after divorce. Some states have passed statutes prohibiting the guilty party from contracting a second marriage after a divorce; in others the guilty party cannot contract a second marriage for a limited time ; in others not without permission from the court. But these restrictions have no extraterritorial effect, for it is a well-established principle of law that a divorce that releases one party from the marriage must free the other. There can- not be a husband without a wife or a wife without a husband, and the courts have held almost unanimously that the party contracting the second marriage cannot be punished for bigamy." " Converse v. Converse, 9 Rich. Eq. (S. C. )535. 15 Clark V. Clark, 19 Kan. 522; Linton v. Bank, 10 Fed. 894. 10 See divorce laws of the several states, infra, p. 233. 17 State V. Weatherby, 43 Me. 258, 69 Am. Dec. 59; Van Voorhis v. Brint- nald, 86 N. Y. 18, 40 Am. Rep. 505; People v. Hovey, 5 Barb. (N. Y.) 117; Dickson v. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 444. [148] CHAP. XXVI.] ALIMONY. [§ 272. CHAPTER XXVI. ALIMONY. 272 In genera- § 297 273 Duty of husband to support 298 wife. 299 274 Marriage as pre-requisite. 300 275. Alimony is allowed in all states. 301 276. Manner of awarding alimony. 302 277. Discretion of court. 278. Permanent alimony. 303. 279. Alimony pendente lite. 304. 280. Alimony in nullity suits. 281. Alimony under common-law 305. marriage. 306. 282. Counsel fees. 307. 283. Liability of husband and wife for legal services to wife in 308. tiivorce suit. 284. Alimony allowed without di- 309. vorce proceedings. 310. 285. Liability of non-resident de- fendant. 311. 286. Husband's right to alimony. 312. 287. Prayer for alimony. 313. 288. Attachment of husband's property. 289. How attachment may be made. 290. Husband's income. 291. Husband's ability. 292. Conduct of parties. 293. Both parties at fault. 294. Wife at fault. 295. Separation by mutual agree- ment. 296. Husband living in adultery. Abandonment of wife. Cruelty to wife. Husband's resources. Condition of family. Necessity of separation of parties. Previous provision for wife's support. Alimony pending appeal. Husband's denial under oath of grounds of divorce. Wife's property or income. Allowance of gross sum. Wife as creditor after decree for alimony. Requiring husband to dis- close on oath. Reference to master. Reference to arbitrator. Surety for payment of ali- mony. Decree of alimony as lien. Enforcement of decree for alimony. (a) Making decree a lien on real estate. (6) Issuance of attachment. (c) Issuance of execution. {d) Appointment of receiver. (e) Requirement of security. (/) Issuance of injunction. {g) Issuance of writ of ne exeat. (h) Imprisonment for con- tempt. [149] § 274.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXVI. § 314. Successive executions. 315. Oath for poor debtors. 316. Appointment of trustee of wife's property. 317. Modification of decree for alimony. 318. Termination of alimony. § 319. Reconciliation. 320. Effect of wife's subsequent adultery upon alimony. 321. Nature of contempt proceed- ings to compel payment of alimony. 321a. Sister state may enforce pay- ment. § 272. In general. Alimony is an allowance paid to- the wife out of her husband's estate or income. Alimony is allowed where absolute or partial divorces are granted. As a wife is compelled to share her husband's adversity, she is also entitled to share his prosperity. The alimony to which she is entitled should correspond to the degree of his wealth and position. No man is required to provide for his wife in a manner inconsis- ent with his or her surroundings, or better than he can provide for himself. As a general rule, alimony is the outcome of a suit for divorce and will be allowed only after the libel has been filed in court. ^ Alimony is an incident of marriage, a maintenance afforded to the wife where the husband refuses to give it.^ § 273. Duty of husband to support wife. It is the duty of the husband to provide a comfortable sup- port for his wife, according to his ability and circmnstances in life, and if, by his wrongful acts, he forces his wife to take legal action against him, or he leaves her without just cause, the law will recognize her right of support and maintenance, and will make provision for her out of his income or estate. This allowance is called alimony and is decreed by order of the court upon petition of the wife.^ § 274. Marriage as pre-requisite. As a valid marriage and a breach of the duties imposed by 1 Bowman v. Worthington, 24 Ark. 522; Foss v. Foss, 2 111. App. 411. 2 Keerl v. Keerl, 34 Md. 21. 8 Mussing V. Mussing, 104 111. 126; Francis v. Francis, 31 Gratt. (Va.) 283; Pauly V. Pauly, 69 Wis. 419, 34 N. W. 512. [150] CHAP. XXVI.] ALIMONY. [§ 275. such marriage are the \'ery ground for alimony, a marriage will have to be admitted or proved before alimony can be de- creed.'* § 275. Alimony is allowed in all states. The statutes of many states make special mention of ali- mony, and in states where the divorce statute is silent upon the subject of alimony, it has been held that the court, in granting a divorce, can decree alimony to the wife.^ § 276. Manner of awarding alimony. Alimony is allowed by the court upon the petition of the wife.® § 277. Discretion of court. The court has great discretion in awarding alimony.^ In- deed in a cause of divorce, the question of the amount to be awarded as alimony is entirely within the discretion of the court, having regard to the conduct of both parties, the amount of property of each, and all the other circumstances of the case.* It may date back to the commencement of the suit.* § 278. Permanent alimony. Permanent alimony is alimony allowed after the trial, and is measured according to the husband's ability, the social standing of the parties, and the needs of the wife and children, * Cowan V. Cowan, 10 Colo. 540, 16 Pac. 215; Roseberry v. Roseberry, 17 Ga. 139; Collins v. Collins, 80 N. Y. 1; Bardin v. Bardin, 4 S. D. 305, 56 N. W. 1069; Shaw v. Shaw, 61 N. W. (Iowa) 368. 5 Chaires v. Chaires, 10 Fla. 308; Griffin v. Griffin, 47 N. Y. 134. 6 Chase v. Chase, 55 Me. 21 ; Francis v. Francis, 31 Gratt. (Va.) 283. 7 Collins V. Collins, 71 3^. Y. 269. 8 White V. White, 73 Cal. 105, 14 Pac. 393; Ressor v. Ressor, 82 111. 442; Graves v. Graves, 108 Mass. 314; Potts v. Potts, 68 Mich. 492, 36 N. W. 240; Worden v. Worden, 3 Edw. Ch. (X. Y.) 387. ■ Swearingen v. Swearingen, 19 Ga. 265; Russell v. Russell, 69 Me. 336. [151] § 280.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXVI. though other matters may be taken into consideration, such as the wife's separate income or estate.^" § 279. Alimony pendente lite. The court may require the husband to pay into court, for the use of the wife during the pendency of the hbel, such sum of money, although exceeding the taxable costs, as may enable her to maintain or defend the libel; and the wife may also, when it appears to be just and equitable, be entitled to alimony during the pendency of the libel. ^^ Such order may be enforced by execution and proceedings as in cases of con- tempt. The amount which the court will require of a hus- band, to enable his wife to maintain or defend a libel for divorce, is not to exceed a reasonable amount for compensa- tion of counsel and other expenses, under all the circum- stances of the case, without regard to the amount that might properly be charged between counsel and client by counsel actually employed. ^^ Alimony ^pendente lite, or temporary alimony as it is sometimes called, is alimony awarded pending the suit.^^ The presumption of the wife's innocence entitles her to temporary support and counsel fees whether she is the plaintiff or defendant. ^^ Alimony pending the suit should not be asked for before the libellee has been summoned.^^ § 280. Alimony in nullity suits. In nullity causes marriage is the only question involved, and, as alimony depends on marriage, it should not be allowed when the marriage itself is in dispute. After a final decree 10 Bowman v. Worthington, 24 Ark. 522; Burrows v. Purple, 107 Mass. 428; Sparhawk v. Sparhawk, 120 Mass. 390; Sheaf e v. Sheaf e, 24 N. H. 564. iiHechtv. Hecht, 28 Ark. 92; Countz v. Countz, 30 Ark. 73; Glenn v. Glenn, 44 Ark. 46. 12 Baldwin v. Baldwin, 72 Mass. 341; Tayman v. Tayman, 2 Md. Ch. 393. 13 Bowman v. Worthington, 24 Ark. 522. 14 Coles V. Coles, 2 Md. Ch. 341. 15 Daiger v. Daiger, 2 Md. Ch. 335; Weishaupt v. Weishaupt, 27 Wis. 621. [152] CHAP. XXVI.] ALIMONY. [§ 281. of nullity, an award of alimony is improper by a majority of the decisions. ^^ § 281. Alimony under common-law marriage. Proof of a common-law marriage has been held sufficient to decree alimony. ^^ § 282. Counsel fees. The court may allow the wife, on her motion or petition, a reasonable allowance out of the husband's income for the payment of her counsel fees in her suit for divorce, the amount awarded depending upon the husband's ability to pay.^* The court has the power to compel the husband to pay a proper fee for retaining counsel to aid the wife in prosecuting her bill for divorce and alimony. ^^ § 283. Liability of husband and wife for legal services to wife in divorce suit. A married woman may make herself chargeable with the value of services rendered upon her employment of counsel to secure a divorce from her husband, although the suit is discontinued. Upon the question of the husband's liability for the costs and expenses of the wife in divorce proceedings, the courts cannot be said to be unanimous. In some cases where he is held liable, his responsibility is placed upon the ground of an implied promise arising out of the wife's power to bind the husband as his agent, and upon the ground that 16 See Frith v. Frith, 18 Ga. 273; Browii v. Westbrook, 27 Ga. 102; Chase V. Chase, 55 Me. 21 ; Bloodgood v. Bloodgood, 59 How. Pr. (X. Y.) 42. " Bo\\Tnan v. Bowman, 24 111. App. 165; Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460; Smith v. Smith, 1 Edw. Ch. (X. Y.) 255. 18 Creamer v. Creamer, .36 Ga. 618; Petrie v. People, 40 111. 334; Tajmian v. Tayman, 2 Md. Ch. 393; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Kendall v. Kendall, 1 Barb. Ch. (X. Y.) 610; Smith v. Smith, 3 Ore. 363; Waldron v. Waldron, 55 Pa. St. 231; Thompson v. Thompson, 3 Head (Tenn.), 527. 19 Baldwin v. Baldwin, 72 Mass. 341 ; Ricketts v. Ricketts, 4 Gill (Md.), 105. Contra, Shelton v. Pendleton, 18 Conn. 421. [ 153 ] § 284.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXVI. such expenses are necessaries. The husband, however, has been reheved from Uability in some states, and it will also be found that his liability has been denied where the proceedings have been instituted by the wife without lawful or reasonable cause, and also in cases where she has an ample estate.^" § 284. Alimony allowed without divorce proceedings. In a few states alimony may be prayed for and, in the dis- cretion of the court, allowed without instituting divorce proceedings.'^ But to justify the court in granting a wife alimony without divorce proceedings, she must show that she is separated from her husband and is absolutely deprived of his support.^^ The wife must also show that the separation was caused through no fault of hers.'^ No decree can be awarded if the wife left her husband without cause, or has separate means of support, or is herself in fault, or has after- ward committed the crime of adultery. ^^ In most states alimony is looked upon as an incident to divorce proceedings.^^ 2oWolcott V. Patterson, 100 Mich. 227, 58 N. W. 1006, 43 Am. St. Rep. 456, 24 L. R. A. 629 and note. 21 Galland v. Galland, 38 Cal. 265; Whitcomb v. Whitcomb, 46 Iowa, 437; Graves v. Graves, 36 Iowa, 310, 14 Am. Rep. 525; Boggess v. Boggess, 4 Dana (Ky.), 307; Keerl v. Keerl, 34 Md. 25; Garland v. Garland, 50 Miss. 694; Miller v. Miller, 1 N. J. Eq. 386; Nicely v. Nicely, 3 Head (Tenn.), 184. 22 Anshutz V. Anshutz, 16 N. J. Eq. 162. 23 Babbitt v. Babbitt, 69 111. 277. 24Wray v. Wray, 33 Ala. 187; Angelo v. Angelo, 81 111. 251; Wahle v. Wahle, 71 111. 510. 25 Bowman v. Worthington, 24 Ark. 522; Goss v. Goss, 29 Ga. 109; McGee V. McGee, 10 Ga. 477; Moon v. Baum, 58 Ind. 194; Chapman v. Chapman, 13 Ind. 396; Henderson v. Henderson, 64 Me. 419; Adams v. Adams, 100 Mass. 365, 1 Am. Rep. Ill; Shannon v. Shannon, 68 Mass. 285; Coffin v. Dunham, 62 Mass. 404, 54 Am. Dec. 769; Mclntire v. Mclntire, 80 Mo. 470; De Graw v. De Graw, 7 Mo. App. 121; Parsons v. Parsons, 9 X. H. 309, 32 Am. Dec. 362; Cory v. Cory, 11 N. J. Eq. 400; Rockwell v. Morgan, 13 N. J. Eq. 119; Davis v. Davis, 75 N. Y. 221; Prosser v. Prosser, 47 Vt. 667; Harrington v. Harrington, 10 Vt. 505. [154] CHAP. XXVI.] ALIMONY. [§ 285. § 285. Liability of non-resident defendant. A decree for alimony or for counsel fees cannot be imposed upon a non-resident defendant, imless he ig summoned or voluntarily appears in court, in which case he can be bound by order of the court although his domicil is in another state. ^® The courts have held that there must be personal service of summons to justify an award of alimony, and it cannot be allowed where the defendant was notified by publication and failed to appear." § 286. Husband's right to alimony. In some states alimony may be allowed the husband, and in a few cases the husband has been allowed alimony out of the income of the wife.^* The court, upon granting a divorce to the husband may decree alimony to the wife.^^ A husband cannot be granted alimony in Nebraska.^*^ § 287. Prayer for alimony. If the libellant or petitioner desires that alimony shall be decreed, it should be prayed for specially, according to the better practice, at the time of filing the bill.^^ Without Prayer. Alimony, being an incident to divorce, may be decreed on motion. ^^ Petition. A petition or motion for permanent alimony may be asked for at any time pending the suit. 33 26Gargner v. Gargner, 56 Md. 127; Ellison v. Martin, 53 Mo. 575. 27 Turner v. Turner, 44 Ala. 437; Beard v. Beard, 21 Ind. 321; Madden v. Fielding, 19 La. Ann. 505; Leith v. Leith, 39 N. H. 20. 28 Mass. Rev. Laws, c. 152, § 30; Vt. Stat. § 2694; R. I. Gen. Laws (1902), c. 971, § 8; Small v. Small, 42 Iowa, 111; Garnett v. Gamett, 114 Mass. 347. 29 Graves v. Graves, 108 Mass. 314. 30 Greene v. Greene, 49 Xeb. 546, 68 N. W. 947, 34 L. R. A. 110 and note. 31 Chandler v. Chandler, 13 Ind. 492; Prescott v. Prescott, 59 Me. 146. 32 Prescott V. Prescott, 59 Me. 146. 33 Prescott V. Prescott, 59 Me. 146. [155] §291.] THE LAW OF MARRIAGE AND DIVORCE. [CHAP. XXVI. § 288. Attachment of husband's property. Upon a libel by a wife for a divorce for a cause accruing after the marriage, an attachment to secure a suitable sup- port and maintenance to her, and to such children as may be committed to her care and custody, may be made upon the husband's real and personal estate by the officer serving the libel.34 § 289. How attachment may be made. When the libel is filed in vacation in the office of the clerk of the court, such attachment may be made upon the summons issued thereon, in the same manner as attachments are made upon writs in actions at common law. When the libel is in the first instance presented to the court, the attachment may be made in like manner upon the order of notice issued thereon. The amount for which the attachment is to be made should be expressed in the summons or order of notice. The attach- ment may be made by trustee process, in which case there should be inserted in the summons or order of notice a direc- tion to attach the goods, effects, and credits of the libellee in the hands of the alleged trustee, and service shall be made upon the trustee by copy. The court may in such cases make all necessary orders to secure to the trustee his costs.^^ § 290. Husband's income. A man is in duty bound to support his wife to the best of his ability, but if he is insolvent, sick, or unable to earn money, he cannot be compelled to pay alimony.^® § 291. Husband's ability. If the husband is without property, but is in good health, 34Goss V. Goss, 29 Ga. 109; Burrows i;. Purple, 107 Mass. 428; Glover's Appeal, 68 Pa. St. 143. 35 See Form No. 3, p. 351. 36 Eidenmuller v. Eidenmuller, 37 Cal. 364; Bankston v. Bankston, 27 Miss. 692; Germond v. Gerinond, 4 Paige (N. Y.), 643; Campbell v. Camp- bell, 37 Wis. 206. [156] CHAP. XXVI.] ALIMONY. [§ 292. strong and able to work, he will have to support his wife." A woman who is used to work cannot compel her husband to maintain her in idleness unless he is abundantly able to do so.^* § 292. Conduct of parties. In awarding alimony, the conduct of the parties is taken into consideration, and an innocent wife who has been greatly wronged will ordinarily be granted a larger allowance than she otherwise would have been granted, if her conduct had influenced her husband's wrongful act.^^ Accordingly, in de- creeing alimony the court will take into consideration the conduct of the wife, and, if she contributed to the cause of divorce, she will be allowed less alimony than she would otherwise have been allowed. '*° In the discretion of the court, alimony may be ordered to be paid to a guilty wife after divorce given to the husband for her offence.'*^ And this is sometimes done in cases of separate support, and in divorces from bed and board, where it is shown to the satisfaction of the court that both parties have been guilty of adultery, and the husband has property and the wife none.'*^ § 293. Both parties at fault. Alimony will be granted when both parties are at fault. "^^ § 294. Wife at fault. If a wife, through her own fault, causes her husband to desert her, she will not be allowed alimony.''-* 37 Muse V. Muse, 84 X. C. 35; Bailey v. Bailey, 21 Gratt. (Va.) 57; Camp- bell V. Campbell, 37 Wis. 206. 38 Ressor v. Ressor, 82 111. 442. 39 Becker v. Becker, 79 111. 532; Stewardson v. Stewardson, 15 111. 145; Helden i-. Helden, 7 Wis. 296. *o Tumbleson v. Tumbleson, 79 Ind. 558; Peckford v. Peckford, 1 Paige (X. Y.), 274. Divorce. C. B. ) Now comes , named as Libellee in the above libel [ 375 ] FORMS. and moves that the Ubellant be required to file specifications stating in some detail the dates, or approximate dates, of the several acts of cruelty reUed upon, and to state the acts which claims constituted cruel and abusive treatment, and also give in detail the places where these alleged acts of cruelty took place, giving street and number, or if at lodging or board- ing houses, the name of the person or persons owning or con- ducting such lodging or boarding house. Clerk. No. 34a. Plea to the Jurisdiction. Now comes the libellee, and relying on the special appear- ance filed in his behalf, and without waiving the same, and without submitting himself in any way to the jurisdiction of this court, says that the court has no jurisdiction of him in the matter of the said Hbel for divorce. Wherefore said libel should be dismissed. (This form is taken from the original papers.) No. 35. Connivance. "The Libellee says that if anything occurred between her and said which might appear to lead to the inference that she had committed the crime of adultery with said , the same was caused, procured and connived at by the Libel- lant, and that said was brought by the Libellant [ 376 ] FORMS, to the house in which the Libellant and the Libellee resided in said , ostensibly as a lodger, but really for the purpose of getting into such a situation with the Libellee as would lead to the inference that said had committed adultery with her." No. 36. Collusion. "The Libellee says that if anything occurred between her and said which might appear to lead to the inference that she had committed the crime of adultery with said , the same was committed with the knowledge and consent of the Libellant, and that the Libellant and Libellee collusively agreed that the acts should be committed or appear to have been committed for the purpose of enabling the Libellant to obtain a divorce." No. 37. Condonation. "And now comes the Libellee in the above-entitled action and alleges that since the fiHng of said Ubel, the Libellant has voluntarily cohabited as his wife (or her husband) and thereby condoned the offence alleged in the libel." [377] FORMS. No. 37a. General Denial and Condonation. "The libellee denies each and every allegation of cause for divorce in the Hbel contained, and further answering says that if any such cause or causes occurred they have since been condoned by the Hbellant." No. 38. Recrimination. "The Libellee denies all the allegations contained in the libel and says that the Libellant, at divers times before the fihng of her said Ubel, committed the crime of adultery with one , and with divers other persons, whose names are unknown to the Libellee but by information of the name of ; wherefore he says that the prayer of the hbel should not be granted." No. 39. Order of Court for the Examination of Person Alleged to be Im^potent. STATE OF VERMONT. County of Essex. County Court. Le Barron \ V. > Divorce. Le Barron ) ORDER OF THE COURT. It is ordered, this day of , 1904, by tlie [378] FORMS. Court, that a commissioner be appointed to take the proofs in relation to the alleged impotence of the defendant at the time of the said marriage between the said and the petitioner. And it is further ordered that the defendant submit ^self to a personal examination by such physicians and surgeons, and at such time and under such regulations as shall be se- lected and prescribed by the said commissioner, for the pur- pose of determining the truth of the said allegation in said petition. The commissioner will select such number of competent and disinterested physicians and surgeons, and prescribe such rules and regulations for such examination so as to secure the ut- most fairness, and will report all his proceedings in relation thereto with the evidence of all such medical examiners as to the facts and results of said examination, and return the same, together with other proofs taken by him, to the court. (This form is taken from Le Barron v. Le Barron, 35 Vt. ,365, at page 372.) No. 40. Decree, Libel Continued After Hearing, with. Custody of Children. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Divorce Court. J. K. V. P. K. ORDERED. In the above-entitled libel for divorce, after hearing the same together with the libel of said J. K. against said P. K., it is ordered as follows: [379] FORMS. The libel stands continued. The Libellee J. K. is to have the custody of the children, I. M. K. and G. H. K., who are not to be removed from the Commonwealth. The Libellant is to have a reasonable opportunity to have the children visit him at his home at reasonable times. The hbellant is to pay to the Libellee five dollars each week for the support of the children. By the Court. , Assistant Clerk. Dated at Boston the day of , A. D. . (The above form is taken from the original papers.) No. 41. Decree Dismissing Libel, the Marriage Being Void. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. No. Divorce. A. R. G., Libellant, V. M. F. G., Libellee. DECREE. This cause came on to be heard, and was argued by coun- sel, and thereupon upon consideration thereof, it is ordered and decreed that the said libel be and the same hereby is dismissed for the reason that the marriage between the said A. R. G. and M. F. G. was void, being made by both parties, in evasion of the laws of this Commonwealth. By the Court. , Assistant Clerk. Dated at Boston the day of , A. D. . (The above form is taken from the original papers.) [380] FORMS. No. 4 la- Decree Dismissing Libel without Prejudice. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. No. Divorce. A. B. V. C. D. Upon hearing the above-entitled Ubel for divorce, it is ordered and decreed that said libel be, and the same hereby is, dismissed without prejudice. Dated the day of , A. D. 190-. By the Court. , Clerk. No. 41b. Decree Dismissing Libel for Want of Jurisdiction. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. No. Divorce. A. B. V. C. D. DECREE. This cause came on to be heard upon the plea to the juris- diction, and was argued by counsel, and thereupon upon con- sideration thereof, it is ordered, adjudged, and decreed that [381] FORMS. the plea to the jurisdiction be sustained, and that for that reason alone said Hbel be, and the same hereby is, dismissed. Dated at Boston the day of , A, D. . By the Court. , Clerk. No. 41c. Decree of Validity. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court No. ^Divorce. DECREE. This cause came on to be heard, and was argued by counsel, and thereupon upon consideration thereof, it is ordered and de- creed that the marriage between the above named and is valid and the same is hereby affirmed. Dated at Boston the day of , A. D., . [ 382 ] FORMS. No. 43. Decree Nisi. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. , Lihellant, \ V. [ No. , Lihellee. ) DECREE NISI. In the above-entitled libel for divorce, it is now ordered and decreed, nisi, that the bond of matrimony heretofore entered into between the said and be, for the cause of the of the said Libellee, as alleged in said libel dissolved: this decree to become absolute, after the expiration of six months from the entry of this decree, unless the Court shall have for sufficient cause, on apphcation of any party inter- ested, otherwise ordered. By the Court. , Clerk. [383] FORMS. No. 43. Decree Nisi After Appointment of Guardian Ad Litem. (Mass. Law of 1902.) COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Divorce Court. C. M. G., Lihellant, V. H. J. G., Libellee. DECREE NISI. This cause came on to be heard upon the suggestion of said Libellant that this Court appoint a guardian ad Utem of said Libellee, and it appearing that said Libellee was an inmate of the Massachusetts Hospital for Dipsomaniacs and Inebri- ates, and that there might be some doubt as to the sanity of said this Court appointed of guardian ad Utem of said for the purpose of investi- gating and reporting as to the sanity of said and as to the truth of the matters alleged in said Ubel. And thereafterwards the said after having made investigation, especially as to the sanity of the said , filed his report in writing, stating that said was sane and desired to contest said Ubel, and thereupon said was notified to appear before this Court and did so appear and upon examination as to his sanity, this Court adjudged said to be sane. And now, said cause having been heard and tried upon the merits, it is ordered and decreed nisi, that the bond of matri- mony heretofore entered into between the said C. M. G. and H. J. G. be, for the cause of the gross and confirmed habits of intoxication on the part of the said libellee as aUeged in said libel dissolved, this decree to become absolute after the expiration of six months unless the Court shall have for suf- [384] FORMS. ficient cause, upon application of any party interested, other- wise ordered. (This form is taken from the original papers.) No. 43a. Objections to Decree Absolute. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. No. Divorce. A. B., Libellant, V. C. D., Libellee. OBJECTIONS TO DECREE ABSOLUTE. Now comes the hbellee and objects to the decree nisi here- tofore entered in said hbel becoming absolute, and for causes of objection says: 1. That he never was served with any process or had any notice of the pendency of said libel until after the hearing upon the same, and that he only learned of the same by reading in a newspaper that a decree of divorce, 7iisi, had been granted in favor of his wife, the said Ubellant. 2. That he beheves he has a good defence to said hbel and in good faith mtends to defend the same. Libellee. -, ss.: , , 190-. Then personally appeared the said and made oath that the foregoing statement by him subscribed was true. Justice of the Peace. 25 [ 385 ] FORMS. jsj-QTE — ^Where the libellant has committed adultery after the decree nisi the objections should be in the form above given, but the allegation would be simply : ''That at divers times and places since the granting of said decree, nisi, and particularly on or about the day of , 190-, in Street in , the libellant has committed adultery with one ." No. 44. Plea of Collusion to Prevent a Decree Nisi from Being Made Absolute, "That the said , the Libellee, was aware that the Libellant had committed adultery with at and, nevertheless, collusively agreed with the Hbellant not to defend the suit, in order that she might obtain a divorce." No. 45. Order that Decree Nisi Shall Not Become Absolute. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. M. B. R., Libellant, V. M. R., Libellee. ORDER. In the above-entitled Ubel for divorce, it is ordered that the decree nisi granted in said libel on the twenty-ninth day of January, A. D., 1904, shall not become absolute until further order of the Court, and that said Libellant, M. B. R., be notified [386] FORMS, by an officer of said Court to appear before our Justices of our said Superior Court, in the Equity Session, the First Division thereof, on Saturday, the twenty-third day of April, A. D., 1904, at ten o'clock, A. M., by serving her with a copy of this order forthwith that she may then and there show cause, if any she have, why said decree nisi should not be vacated, and said Ubel dismissed. By the Court. , Assistant Clerk. Dated at Boston the sixteenth day of April, A. D., 1904. (The above form is taken from the origmal papers.) No. 46. Certificate of Decree of Divorce (Absolute). COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: 1 hereby certify that at the Supreme Court holden at Boston, within and for the County of Suffolk, on the (Jay of , A. D., , a divorce from the Bond of Matrimony — nisi — was decreed by the Court, between of , Libellant, and of , Libellee, in favor of said Libellant, for the cause which is fully set forth in the hbel on file in said court, to wit: to become absolute after the expiration of six months, unless the Court shall have for sufficient cause on apphcation of any party interested, otherwise ordered. And on the day of , A. D., , the said [387] FORMS. six months having expired, and the Court not having other- wise ordered, said decree become absolute. In testimony whereof I have hereunto set my hand, and affixed the seal of said Court, at Boston, this day of , A. D. . Clerk. No. 47. Decree of Divorce. Form of written decree used in Arizona, California, Idaho, Montana, Nevada, Utah, and a few of the other western states. In the Court of the County of State of . Present: Hon. , Judge. Mary Brown \ V. > Decree of Divorce. John Brown ) This cause coming on to be heard this fifteenth day of Au- gust, 1904, upon the complaint herein taken, as confessed by the defendant (whose default for not answering had been duly entered) upon the proofs taken herein, and upon report of John Smith, referee in this cause, to whom it was referred by order of this Court duly made the first day of August, 1904, to take the proofs 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 this Court, on the twelfth day of August, 1904, from, which it appears that all the material allegations of the complainant are sustained by testimony free from all legal exceptions as to its competency, admissibility and suffi- [388] FORMS. ciency, and it also appearing to said Court that said defendant was duly served with the summons and all and singular the law and the premises being by the Court here understood and fully considered. Wherefore it is here ordered, adjudged, and decreed, and this does order, adjudge, and decree, that the marriage be- tween the said plaintiff Mary Brown and the said defendant John Brown be dissolved, and the same is hereby dissolved and the said parties are, and each of them is, freed and ab- solutely released from the bonds of matrimony, and all the obligations thereof. And it is further ordered and decreed that the custody of the children of said marriage, to \vit, Deha Brown, aged sixteen years, and Peter Brown, aged seven years, be and the same is hereby awarded to the plaintiff. Done in Open Court this fifteenth day of August, 1904. Judge. This is a true copy of the decree of divorce. Clerk. No. 48. Decree of Divorce a Mensa et Thoro (from Bed and Board). (After usual headings.) " It is thereupon ordered, adjudged, and decreed that the plaintiff and defendant be separated from bed and board forever; provided, however, that the parties may at any time hereafter, by their joint and mutually free, voluntary act, apply to the Court for leave to be dis- charged from this decretal order. [ 389 ] FORMS. " And it is hereby declared to be the duty of each of them to live chastely during their separation, and that it will be crimi- nal, and an act void in law, for either of them, during the Ufe of the other, to contract matrimony with any other person. And it is further ordered, etc., that the plaintiff, according to the prayer of her bill, shall be entitled to, and charged with, the custody, care and education of the infant son of the parties in the pleadings mentioned, provided, always, that this order for custody, care and education of the said infant, may, at any time hereafter, be modified, varied, or annulled, upon suffi- cient cause shown. And it is furthered ordered, etc., that the defendant pay to the plaintiff $200 a year, to be computed from the date of this decree, in half yearly payments, to be appUed towards the support and maintenance of the plain- tiff and her son, and that this allowance is to continue until further order of the Court and be subject to variation, as further circumstances may require, and it is further ordered, that the defendant pay to the plaintiff the costs of this suit, to be taxed, and that she have execution therefor, according to the course and practice of the Court." (This decree was entered in the case of Barrere v. Barrere, 4 Johns. Ch. [N. Y.] 187 at page 198. This was a divorce from bed and board on the grounds of cruelty.) [ 890 ] FORMS. No. 49. Order to Produce Child in Court. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.; Superior Court. No. Divorce. E. E. D., Petitioner, V. G. W. D., Respondent. ORDER TO PRODUCE CHILD IN COURT. In the above-entitled petition, the said respondent, G. W. D., be and he hereby is directed to produce the body of R. E. D., the minor child of said E. E. D. and G. W. D., forthwith, before a Justice of this Court, to await the decree of this Court. By the Court. , Assistant Clerk. Dated at Boston the twenty-seventh day of May, A. D., 1903. (The above form is taken from the original papers.) No. 50. Habeas Corpus. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: To the Sheriffs of our several Counties and their respective Deputies. Greeting : Whereas: E. E. D. of Boston in our County of Suffolk has brought a petition before the Justices of our Superior Court within and for said County of Suffolk against her former hus- [391] FORMS. band, G. W. D., in which petition it is alleged that R. E. D., the minor child of said E. E. D. and G. W. D. is now in the custody and control of said G. W. D., the custody of which child the petitioner asks that the Court may decree to her. Now, therefore, we command you that the body of the said R. E. D. you take and have before a Justice of our said Superior Court, now holden at Boston, within and for the County of Suffolk, immediately after the receipt of this writ, to do and receive what our said Justices shall then and there consider concerning said minor child, R. E. D., in this behalf. And have you here this writ, with your doings therein. Witness, Albert Mason, Esquire, at Boston the twenty- sixth day of May in the year of our Lord one thousand nine hundred and three. George P. Drury, Assistant Clerk. (The above form is taken from the original papers.) No. 51. Decree Awarding Temporary Custody of Child. COMMONWEALTH OF MASSACHUSETTS. Superior Court. Suffolk, ss.: No. Divorce. Divorce. DECREE. "This case came on to be heard on the motion of the Libel- lant for the temporary custody of the child, , and was [ 392 ] FORMS. argued by counsel. And thereupon, after consideration there- of, it is Ordered, adjudged and decreed: " That the Libellee (or Libellant) , be and hereby is ordered to surrender the possession of said cliild to Libellee (or Libellant) , to be taken by h — to h — home in the City (or town) of and there to remain until further orders of the court. The Libellee (or Libel- lant) shall have the privilege of seeing said child at all reason- able and proper times." By the Court. Clerk. No. 52. Agreement for Third Party to Have Care and Custody of Child. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.; Superior Divorce Court. No. . PETITION. Your petitioners, , Libellant and , Libellee, in the above-entitled action, respectfully petition this Honorable Court to decree the care and custody of our child, , born , A. D., 1904, to , and of in the County of and Commonwealth of Massachusetts. Libellant. Libellee. [ 393 ] FORMS. DECREE. This petition came on to be heard on motion of the Libellant and Libellee, who were represented by Counsel. And there- upon, after consideration it is ordered and decreed that the care and custody of the said be and hereby is decreed to of in the county of and Com- monwealth of Massachusetts. It is ordered and decreed that the mother and the father of said shall be permitted to see said child at all reasonable time or times until further order of the Court. Justice of the Superior Court. No. 53. Decree for Custody of Children. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. No. Divorce. B. P. C, Libellant, V. F. S. C, Uhellee. ORDER AS TO CUSTODY OF CHILD. In the Hbel aforesaid, upon the motion of the Libellant, it is ordered that the custody of the mmor child, F. C, be, and the same hereby is given to the libellant, B. P. C, until the further order of the Court, and the said Libellee, F. S. C, his agents and attorneys, are hereby enjoined and commanded to desist and refrain from interfering with the Libellant's [394] FORMS. possession and custody of said minor child and from exercising any control over said child. By the Court. Dated at Boston this day , A. D. . (The above form is taken from the original papers.) No. 54. Decree for Costs. "It is ordered that the Libellee pay to the Libellant, the costs of this suit, to be taxed, and that she have execution therefor, according to the course and practice of the Court." No. 55. Agreement to Modify Decree. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: . Superior Court. No. . Libel for Divorce. A. B. V. C. D. In the above-named case it is agreed that the decree hereto- fore entered therein may be modified substantially as follows: Whereas, , the LibeUee in said action, has this day paid to , the Libellant, the sum of $ , it is ordered and decreed that said sum of S shall be and is in full of all costs and expenses of said suit, also of all ar- rears of alimony that are now due and unpaid, and of any sum or sums ordered and decreed to be paid for the support and [395] FORMS. maintenance of the minor child of said parties, that are now due and unpaid, according to the former order of the Court, and for all future ahmony and also for all past and future expenses of maintaining said minor child and in all other respects said decree is affirmed. Atty. for Lihellant. Atty. for Libellee. No. 56. Order to Modify Decree. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. Divorce No. 948. M. A. A., Petitioner, V. W. H. A., Respondent. In the above-entitled petition it is ordered, adjudged and decreed that this decree heretofore entered on the eighth day of January, 1905, in the libel for divorce numbered of , between the said petitioner as Libellant and the said respondent as Libellee, be, and the same hereby is modified as set forth in the agreement of the parties, which is hereto annexed and made a part of this decree, and in all other re- spects said decree of Jaunary 8, 1905, is affirmed. By the Court. , Assistant Clerk. Dated at Boston the day of , A. D. . (This form is taken from the original papers.) [ 396 ] FORMS. No. 57. Agreement to Sustain Decree of Probate Court. (After appeal has been taken.) COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.; Superior Court. Divorce No. . L. B. C, Petitioner, V. F. T. C, Respondent. DECREE. Braley, J. This cause came on to be heard and upon the agreement of the parties it is now ordered, adjudged and decreed that the appeal of the respondent F. T. C. be, and the same hereby is, sustamed, that the petition of the said L. B. C. be and the same hereby is dismissed and remanded to the Probate Court. By the Court. , Assistant Clerk. (This form is taken from the original papers.) No. 58. Dismissal of Appeal from the Probate Court. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. A. L. L., Petitioner. V. T. J. L., Respondent. In the above-entitled petition wherein said T. J. L. of Boston in said County of Suffolk appealed from a decree of the Probate [397] FORMS. Court and for said County of Suffolk dated the tenth day of January, 1901, in favor of his wife, A. L. L., Petitioner, whereby the Respondent T. J. L. was ordered to pay the Petitioner for the support of herself, ten dollars forthwith, and the further sum of five dollars each Thursday thereafter. It is now ordered on the twenty-ninth day of October, 1901, that said appeal be and the same hereby is dismissed and the decree of the Probate Court be and the same hereby is affirmed. (This form was taken from the original papers.) No. 59. Affidavit of Physician that Witness is Unable to Attend Court. KNOW ALL MEN BY THESE PRESENTS. That I, , of in the County of and Commonwealth of Massachusetts, depose and say that I am a duly registered physician and surgeon, practicing in , in the County of , and with an office at street, that I have been and at present am the regu- lar attending physician of , that I have attended frequently during the past weeks, that on 1904, at the Hospital in , in the County of , a surgical operation of a delicate and serious nature was performed upon that at the time said operation was performed, I was present and assisted in performing it, that at the present time the said is a patient at the Hospital and is under medical treatment and care, and I still attend h — and attended h — on , that is still confined in bed and is not able and does not sit up in bed. I further depose and say that in my opinion it will not be safe or proper for h— to leave the hospital for at least [398] FORMS. from the present time, that is still in an extremely nervous state, and for recovery should be kept quiet, free from noise and excitement, and subject to no mental or physi- cal strain. Boston, , 1905. Then personally appeared the above-named and made oath that the foregoing affidavit subscribed by him is true. Before me . Notary Public. No. 60. Petition for "Writ of Protection. "Your petitioner says that he is not a resident of the Com- monwealth of Massachusetts; that he is here temporarily for the purpose of attending the trial of the divorce case of V. , No. , in which he is the Libellant, now on the short fist in said Court, and undisposed of; that said suit has not been commenced collusively, but was commenced and is conducted in good faith in every respect; that he ap- prehends his arrest for debt, and prays that this court may issue a writ of protection in his behalf." Subscribed and sworn to before me the day of , A. D. . Justice of the Peace. [399] FORMS. No. 61. Petition for Custody of Minor Children. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.; Superior Court. To the Honorable the Justices of the Superior Court to be holden at Boston, within and for the County of Suffolk: Respectfully represents A. B. of in the County of , that on the day of , A. D. , a decree of divorce nisi, was granted against him in favor of C. B,, now of in the County of , with custody of the minor children, E. B. and G. B. to said C. B. That said decree nisi has since become absolute. That since the granting of said decree nisi the said C. B. has contracted gross and confirmed habits of intoxication, caused by the voluntary and excessive use of intoxicating liquor, and has become an unfit person to have the custody of said minor' children. That your petitioner is able to take said children, and provide a good home for them. Wherefore your petitioner prays that he be given the care and custody of said minor children. (Same.) (Same formal heading as above.) Respectfully represents A. D. of in the County of -, that on the day of , A. D. she obtained a decree of divorce, nisi, for cause of cruel and abusive treatment, from C. D. of in the State of . That at the time when said decree was granted your petitioner did not ask for the custody of the minor chil- dren, H. D. and W. D., as they were already in her custody, and said C. D. was then of parts unknown. That your peti- tioner now has reason to beUeve that said C. D. is planning [400] FORMS. to seize said children and remove them from the Common- wealth by force. Wherefore she prays that the care and custody of said minor children may be decreed to her. Petitioner. No. 63. Petition to Modify Decree for Alimony. (Husband's Petition to Reduce.) COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.; Superior Court. To the Honorable the Justices of the Superior Court to be holden at Boston, within and for the County of Suffolk: Respectfully represents A. B. of Boston in the County of Suffolk that upon granting a decree of divorce, nisi, granted in favor of C. B. of said Boston, against your petitioner on the day of , A. D. , which decree nisi has since become absolute, this Court ordered your petitioner to pay to said C. B. the sum of ten dollars per week, as ahmony. That at the time said decree was made your petitioner was receiving an income of twenty-five dollars per week, and said C. B. was without visible means of support; but at the present time your petitioner is out of employment, and has no prop- erty and no income except a pension of twenty dollars per month, and is wholly unable to pay said ahmony, and said C. B. has recently come into an income of about three hundred dollars per year by inheritance. Wherefore your petitioner prays that said decree as to ahmony may be modified by reducing said ahmony materially, or to a nominal sum, or by discontinuing the same altogether. Petitioner. 26 [ 401 ] FORMS, No. 63. Wife's Petition for Alimony. (Omitting formal parts.) Respectfully represents C. D. of Boston in the County of Suffolk, that on the day of , A. D. , she was granted a decree of divorce, nisi, against A. B. of said Boston, with custody of the two minor children, E. D. and F. D. That at the time of the hearing on said Ubel, no payment of money was asked for by your hbellant, either as alimony or for the support of children. At that time said A. B. was out of the Commonwealth, and had little or no property of any value, so far as your petitioner knew, and your petitioner was then in fairly comfortable circumstances, she and her chil- dren being supported by her father and brothers. At the present time your petitioner is dependent upon her own exer- tion for her support, and said children are now of the ages of 14 and 12 years, and the expense of their maintenance and education has increased. The respondent has now secured employment, and is residmg in Boston, Massachusetts, and your petitioner is informed and beheves that he is in receipt of an income of not less than three thousand dollars per year. Wherefore she prays that the respondent be ordered to pay her a suitable allowance as alimony and for the support of said children. Petitioner. [402] FORMS. No. 64. Petition to Vacate Decree. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. No. Divorce. PETITION TO VACATE DECREE. And now comes , your petitioner, and prays that the decree nisi entered in the above-entitled case upon the day of , A. D. 1905, be vacated and that the hearing upon the above-entitled case be reopened for the following reasons : First. That the finding in said cause was based upon evi- dence that was untrue and false in every particular. Second. That the above-entitled cause was contested by her and that in the course of said contest she had employed as her attorney. That she is informed and believes that was acting as her attorney on the day of the trial of said cause. That his appearance had not been with- drawn and has not since been withdrawn. That on the day of the trial her attorney, either by himself or through some agent, was present during the day and that at the time this case w^as tried, in the \dcinity of five o'clock in the afternoon of the day of the trial, the cause came on without the knowl- edge of , her attorney, and without her knowledge and the first knowledge she had was the information that the case had been tried and decided against her upon the grounds of gross and confirmed habits of intoxication. That when said information had been conveyed to her she w^as ill and unable to intelhgently decide what course she ought to pursue. Third. Your petitioner says that until recently she had not been given any information as to the nature of the testimony [403] FORMS. against her, or as to the parties who gave such testimony. That she has been informed who the witnesses were and says that they were persons who were procured by the Ubellant to testify against her. That their statements were false, that in one case at least, the case of one , who she is in- formed and beUeves testified, the witness had no knowledge or acquaintance with your petitioner upon which she could base testimony either for or against her. That one other wit- ness, , testified upon statements furnished to him by the libellant for him to testify to. That as to one other witness, who she is informed and believes testified at the said trial, she is entirely unacquainted with and unable to say other than that if any material testimony was given by the said witness, it was testimony that was false and without foundation. Fourth. That upon information and belief she has learned that statements were made to the Justice presiding at the trial, that her case had been uncontested, and that by reason of that statement the trial proceeded. She has been informed and believes that said statement was made either by the Ubel- lant or by counsel of record representing the libellant. That said statement is untrue and that neither the counsel nor the libellant had any right or authority either through her, or counsel of record representing her, to make any such state- ment. Fifth. That the charge upon which the finding was made as well as the evidence upon which the said charge was sus- tained, is false, and that she asks an opportunity to present to the court, evidence on such charge and asks that the decree nisi now pending upon the records of this court may be stricken off and that she may be allowed to present to court her evi- dence and have an opportunity to be heard by counsel upon the issue presented in said hbel. Petititoner. [404] FORMS. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Boston, 1905. Subscribed and sworn to before me this day of , A. D. 1905. Justice of the Peace. (This form is taken from the original papers.) No. 65. Objection to Decree Absolute. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Superior Court. No. Divorce. , Libellant, V. , Lihellee. OBJECTION TO DECREE ABSOLUTE. And now conies the hbellee, and deposes, and says that on or about the time notice of the said hbel was served upon hun, he consulted with and engaged one , an attorney, of this court, to appear and answer in his behalf and to con- duct his defence, yet the said utterly failed and neglected so to appear and answer, and your affiant had no notice or knowledge of the time of the hearing of said hbel, but was later informed that a decree nisi had been granted to the Ubehant; and your deponent further says that he beheves he has a good defence to the said hbel, and has at all times intended m good faith, and stih mtends to defend the said hbel. Wherefore, he prays that the decree nisi which was granted [405] FORMS. to the said libellant be vacated so that the said cause may be heard upon its merits. Petitioner. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.: Boston, Dec. — , A. D. 1905. Then personally appeared the above-named and deposed and said that the above statement subscribed by him is true, before me. Notary Public. (This form is taken from the original papers.) No. 66. Decree dismissing Libel for Adultery. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss..- Superior Court. No. Divorce. DECREE. In the above-entitled hbel for divorce, upon hearing, it is ordered and decreed that the Hbel be, and the same hereby is dismissed, for the reason that each party has been guilty of adultery as charged by the other. By the Court. George P. Drury, Assistant Clerk. (This form is taken from the original papers.) [406] FORMS. No. 67. Answer (General Denial). COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss.; Superior Court. No. Divorce. A. B. V. CD. Now comes the libellee and, admitting the allegation of marriage, denies each and every allegation in the hbel con- tained. Libellee. (Another Form). "The libellee denies that (he or she) has ever committed any of the offences which are alleged in said libel as causes for divorce against (him or her)." [407] STATISTICS OF MARRIAGE AND DIVORCE. STATISTICS OF MARRIAGE AND DIVORCE. STATISTICS OF MARRIAGE AND DIVORCE. The following tables of statistics of marriage and divorce are not complete, and have been gathered with great diffi- culty. Many of the States have no records of marriages and divorces, except that the marriages are recorded in the towns and cities where solemnized, and the divorces are with the records of the courts. To compile these statistics the records of every town and city, as well as the records of the courts, would have to be examined for each year, which would take a great amount of tune and a large expenditure of money. In 1889 the Federal government published statistics on mar- riage and divorce for the twenty years from 1867 to 1886. These statistics were compiled by Hon. Carroll D. Wright, and most of the statistics here given prior to 1887 are taken from his report. Since 1887 statistics have been gathered by the kind assistance of those in charge of public documents in the various States. In the twenty years covered by Car- roll D. Wright's report (1867 to 1886), 328,716 divorces were granted. In 1867 there were 9,937 decrees entered; in 1886 there were 25,535 decrees, an increase in twenty years of 157 per cent. The population during this time increased but 60 per cent. Of this number of divorces, 216,176 were granted to the wife and 112,540 were granted to the husband. It is impossible to give the number of marriages celebrated each year, owing to imperfect returns, and in some States no records have been kept. As far as possible the author has given the number of marriages celebrated and divorces granted in each state, giving ratio of divorces to marriages, [411] 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, STATISTICS OF MARRIAGE AND DIVORCE. ALABAMA. Marriages. Ratio of Divorcea to MairiageB. 78 91 90 114 106 117 143 163 146 183 194 268 327 300 413 395 486 413 515 662 ARIZONA. 1867, 1868, 1 1869 1870, 1 1871, 2 1872, 2 [412] STATISTICS OF MARRIAGE AND DIVORCE, ARIZONA — continued. Marriages. Ratio of Divorces to Marriages. 3 2 1 9 8 5 28 23 17 22 34 27 22 30 ARKANSAS. 121 83 113 113 132 129 143 144 187 243 256 334 [413] 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, STATISTICS OF MARRIAGE AND DIVORCE. ARKANSAS— conJwwed. Marriagea. Ratio of DivorceB to Marriages. 383 464 510 422 497 539 582 646 CALIFORNIA. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 200 206 297 298 287 368 489 535 573 588 630 594 646 683 829 853 986 1,049 [414] STATISTICS OF MARRIAGE AND DIVORCE. CALIFORNIA— continued. Ratio of Divorces to MaTiiages. 974 1.010 COLORADO. 4 9 9 30 28 42 59 63 83 91 102 138 153 250 362 440 510 467 387 451 [415] 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906. STATISTICS OF MARRIAGE AND DIVORCE. COLORADO— continued. Marriages. Ratio of Divorces to Marriages. CONNECTICUT. 1867, 4,779 500 1 to 9.56 1868, 4,734 493 1 to 9.60 1869, 4,754 497 1 to 9.56 1870, 4,971 408 1 to 12.18 1871, 4,4S2 412 1 to 10.88 1872, 5,023 464 1 to 10.82 1873, 4,841 457 1 to 10.60 1874, • 4,694 492 1 to 9.54 1875, 4,387 467 1 to 9.40 1876, 4,320 396 1 to 10.91 1877, 4,319 457 1 to 9.45 1878, 4,315 401 1 to 10.76 1879, 4,373 316 1 to 13.83 1880, 4,745 332 1 to 14.29 1881, 4,850 404 1 to 12 1882, 5,329 392 1 to 13.59 1883, 5,441 451 1 to 12.06 1884, 5,394 344 1 to 15.68 1885, 5,091 398 1 to 12.97 1886, 5,497 420 1 to 13.09 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 5,830 367 1 to 15.88 1895, 6,623 417 1 to 15.88 1896, 6,714 449 1 to 14.95 [416] 1867, 1868, 1869, 1870 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, STATISTICS OF MARRIAGE AND DIVORCE. COHU'ECTIC'UT— continued. DELAWARE. 490 567 718 678 793 971 25 1 21 1 21 23 8 4 6 16 6 36 5 20 6 27 11 41 9 YEAR. Marriages. Divorces. Ratio of Divorces to ManiageB. 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, 6,461 6,565 6,843 6,991 7,112 7,G60 8,078 403 429 431 452 511 462 533 1 to 16.03 1 to 15.30 1 to 15.87 1 to 15.46 1 to 13.91 1 to 16.58 1 to 15.15 1 to 1 to 1 to 1 to 1 to 24.50 94.75 26.63 61.63 19.. 33 1 to 107.80 27 [417] STATISTICS OF MARRIAGE AND DIVORCE. Ji^L AW AR'E— continued. TEAR. MarriageB. Divorces. Ratio of Divorceg to Marriages. 1903, 1904, 1905, 1906, DELAWARE, Legislative Divorces in 1871, 1873, 1877, 1879, 1881, 1883, 1885, 1887, 1889, 1891, 1893, 1895, 1897, 19 23 14 34 13 21 31 42 63 47 53 48 100 DISTRICT OF COLUMBIA. 1867 1,912 28 1 to 68.28 1868 1,717 23 1 to 74.65 1869 1,162 24 1 to 48.41 1870 1,590 39 1 to 40.77 1871 1,328 47 1 to 28.25 1872 1,645 67 1 to 24.55 1873 1,737 64 1 to 27.14 1874 1,653 73 1 to 22.64 1875 1,669 56 1 to 29.80 1876 1,590 58 1 to 27.41 1877 1,541 74 1 to 20.82 1878 1,638 49 1 to 33.42 1879 1,758 40 1 to 43.95 1880 1,623 66 1 to 24.59 1881 1,618 65 1 to 24.89 1882 1,655 55 1 to 30 1883, 1,881 66 1 to 28.50 1884 2,130 81 1 to 26.30 1885, 2,053 55 1 to 37.. 33 1886, 2,170 75 1 to 28.93 1887, 1888, 1889, 1890, [418] STATISTICS OF MARRIAGE AND DIVORCE. DISTRICT OF COLVULBIA— continued. Ratio of Divorces to Marriages. FLORIDA. 32 28 52 57 29 51 58 61 85 85 89 104 130 149 153 174 200 158 201 232 [ 419 ] 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, STATISTICS OF MARRIAGE AND DIVORCE. FLORIDA — continued. Marriages. Ratio of Divorces to Marriagee. GEORGIA. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 127 82 112 118 148 143 175 182 196 197 211 123 223 253 215 284 258 292 295 365 [420] STATISTICS OF MAERIAGE AND DIVORCE. Or^OHQlA— continued. YEAR. Marriages. Divorces. Ratio of Divorces to MarriageB. 1900, 1901, 1902, 1903, 1904 1905, 1906, IDAHO. 12 7 12 9 14 7 8 3 10 9 9 8 16 23 14 36 39 36 52 53 421 STATISTICS OF MARRIAGE AND DIVORCE. ILLINOIS. Ratio of Divorces YEAR. Marriages. Divorces. to Marriages. 1867, 21,440 1,071 1 to 20 1868, 20,061 1,125 1 to 17.83 1869, 20,104 1,179 1 to 17.05 1870, 19,534 1,178 1 to 16.58 1871, 20,569 1,250 1 to 16.45 1872, 26,128 1,745 1 to 14.97 1873, 26,802 1,787 1 to 15 1874, 25,411 1,678 1 to 15.14 1875, 25,340 1,647 1 to 15.37 1876, 24,465 1,659 1 to 14.74 1877, 24,509 1,647 1 to 14.88 1878, 25,820 1,748 1 to 14.77 1879, 26,726 1,842 1 to 14.50 1880, 28,402 2,139 1 to 13.27 1881, 30,763 2,326 1 to 13.22 1882, 33,173 2,375 1 to 13.96 1883, 33,794 2,455 1 to 13.76 1884, 32,770 2,342 1 to 14 1885, 32,480 2,273 1 to 14.28 1886, 34,076 2,606 1 to 13.07 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1 oni lyui, 1902, 1903, 1904, , 1905, 1906, n INDIANA. 1867, 1,096 1868, 1,126 1869, 1,210 1870, 1,170 1871, 1,139 [422] STATISTICS OF MARRIAGE AND DIVORCE. INDIANA — continued. Ratio of Divorces YEAR. Marriages. Divorces. to Marriages. 1872, 1,157 1873, . 864 1874, . 1,002 1875, . 1,052 1876, . 1,014 1877, . 1,151 1878, . 1,183 1879, . 1,271 1880, . 1,423 1881, . 1,495 1882, . 1,540 1883, . 1,607 1884, 1,534 1885, . 1,504 1886, 1,655 1887, 1888, . 1889, 1890, . 1891, 1892, 1893, 1894. . 1895, 1896, 1897, 23,990 3,080 1 to 7.78 1898, 25,043 2,896 1 to 8.64 1899, 25,232 4,031 1 to 6.26 1900, 27,671 4,699 1 to 5.88 1901, 1902, 1903, 1904, 1905, 1906, IOWA. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 504 553 584 570 627 617 709 662 675 846 [423] 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, STATISTICS OF MARRIAGE AND DIVORCE. IOWA — continued. Marriagea. 854 842 854 1,001 1,063 1,150 1,043 1,164 1,119 1,127 Ratio of Divorces to Marriagea. KANSAS. 1867, 922 76 1 to 12.13 1868, 1,150 113 1 to 10.17 1869, 1,540 122 1 to 12.62 1S70, 2,065 158 1 to 13.07 1871, 2,517 256 1 to 9.83 1872, 2,950 280 1 to 10.53 1873, 3,284 236 1 to 13.91 1874, 3,600 296 1 to 12.16 1875, 3,391 220 1 to 15.41 1876, 4,099 261 1 to 15.67 1877, 4,194 261 1 to 16.07 1878, 4,981 357 1 to 13.95 1879, 5,897 387 1 to 15.23 1880, 6,572 442 1 to 14.86 1881, 6,577 444 1 to 14.81 [424] STATISTICS OF MARRIAGE AND DIVORCE. KANSAS — continued. YEAR. Marriages. Divorces. Ratio of Divorces to Marriages. 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, 6,703 7,477 8,609 9,365 10,481 558 643 574 690 817 1 to 12 1 to 11.62 1 to 15 1 to 13.56 1 to 12.82 KENTUCKY. 292 320 332 368 414 404 460 436 432 510 550 531 537 567 660 615 640 668 7.55 757 [425] 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, STATISTICS OF MARRIAGE AND DIVORCE. 'K.'EST'U CKY— continued. Marriages. Ratio of Divorces to Mairiages. LOUISIANA. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 33 34 41 30 35 32 49 70 90 78 68 70 87 109 112 94 157 143 168 197 [426] STATISTICS OF MARRIAGE AND DIVORCE. LOUISIANA — continued. Ratio of Divorcea to Marriages. MAINE. 1867, 408 1868, 416 1869, 365 1870, 357 1871, 402 1872, 387 1873, 365 1874, 466 1875, 447 1876, 436 1877, 495 1878, 489 1879, 510 1880, 609 1881, 674 1882, 529 1883, 373 1884, 244 1885, 332 1886, 1 CQ7 374 loo/, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 5,726 5,795 5,591 5,729 5,579 552 627 674 681 668 1 to 10.37 1 to 9.24 1 to 8.29 1 to 8.41 1 to 8.35 [427] STATISTICS OF MARRIAGE AND DIVORCE. MAINE — continued. Ratio of Divorces YEARS. Marriages. Divorces. to Marriages. 1897, 5,331 722 1 to 7.38 1898, 5,144 764 1 to 6.73 1899, 5,329 790 1 to 6.74 1900, 5,482 801 1 to 6.84 1901, 5,735 808 1 to 7.09 1902, 5,905 905 1 to 6.52 1903, 6,200 946 1 to 6.55 1904, 1905, 1906, MARYLAND. 1867, 6,169 83 1 to 74.27 1868, 7,636 83 1 to 92 1869, 6.635 86 1 to 77.15 1870, 6,326 84 1 to 75.30 1871, 6,100 89 1 to 68.54 1872, 6,381 109 1 to 58.54 1873, 6,667 87 1 to 76.63 1874, 6,555 81 1 to 80.92 1875, 6,293 97 1 to 64.87 1876, 5,991 91 1 to 65.83 1877, 6,117 83 1 to 73.70 1878, 6,241 82 1 to 76.11 1879, 6,370 99 1 to 64.34 1880, 6,900 128 1 to 53.90 1881, 6,837 103 1 to 66.37 1882, 7,363 138 1 to 53.35 1883, 7,253 157 1 to 46.20 1884, 7,714 173 1 to 44.59 1885, 7,347 167 1 to 44 1886, 8,436 165 1 to 51.12 1887, 1888, 1889, 1890, 1891, 1892, . 1893, 1894, 1895, 1896, 1897, . 1898, . 1S99, 1900, , 1901, . [428] STATISTICS OF MARRIAGE AND DIVORCE. MARYLAND — continued. YEAR. Marriages. „. 1 Ratio of Divorces Divorces. ^ .. to Marriages. 1902, 1903, 1904, 1905, 1906, MASSACHUSETTS. 1867, 14,451 318 1 to 45.44 1868, 13,856 369 1 to 37.55 1869, 14,826 359 1 to 41. 29 1870, 14,721 404 1 to 36.43 1871, 15,746 331 1 to 47.57 1872, 16,142 337 1 to 47.90 1873, 16,4.37 442 1 tc 37.18 1874, 15, .564 611 1 to 25.47 1875, 13,666 577 1 to 23.68 1876, 12,749 511 1 to 24.95 1877, 12,798 520 1 to 24.61 1878, 12,893 601 1 to 21.45 1879, 13,802 550 1 to 25.09 1880, 15,538 595 1 to 26. 11 1881, 16,768 387 1 to 43.23 1882, 17,684 532 1 to 33.24 1883, 18,194 655 1 to 27 . 77 1884, 17,333 614 1 to 28 . 32 1885, 17,0.52 646 1 to 26.40 1886, 18,018 601 1 to 30 1887, 19,533 796 1 to 24 . 53 1888, 19,739 624 1 to 31. 63 1889, 20,397 756 1 to 26.98 1890, 20,838 654 1 to 31. 86 1891, 21,675 798 1 to 27.16 1892. . 22 507 790 1 to 28.49 1893, 22,814 1,045 1 to 21.83 1894, 20,619 1,107 1 to 18.62 1895, 23,102 954 1 to 24.21 1896, 23,651 1,230 1 to 19.22 1897, 23,038 1,123 1 to 20.51 1898, 22,142 1,182 1 to 18.73 1899, 23,523 1,163 1 to 20.22 1900, 24,342 1,258 1 to 19.35 1901, 24,891 1,376 1 to 18.09 1902, 1903, 25,685 1,480 1 to 17.35 1904, 1905, 1906. [429] STATISTICS OF MARRIAGE AND DIVORCE. MICHIGAN. i Ratio of Divorecfl YEAR Marriages. Divorces. to Marriages. 1867, .... 5,740 449 1 to 12.70 1868, 5,547 509 1 to 10.90 1869, 8,534 493 1 to 17.31 1870, . 9,235 554 1 to 16.67 1871, 10,196 630 1 to 16.18 1872, 9,897 . 620 1 to 15.96 1873, 10,622 705 1 to 15.06 1874, 11,041 794 1 to 13.90 1875, . 11,055 864 1 to 12.79 1876, 10,859 800 1 to 13.57 1877, 11,009 927 1 to 11.86 1878, 12,221 993 1 to 12.30 1879, 13,231 1,110 1 to 11.96 1880, 14,149 1,149 1 to 12.31 1881, . 14,817 1,313 1 to 11.28 1882, . 16,178 1,335 1 to 12.11 1883, . 16,420 1,383 1 to 11.87 1884, . 15,002 1,239 1 to 12.10 1885, 15,016 1 227 1 to 12.23 1886, . 15,314 1,339 1 to 11.43 1887, 1888, 1889, . 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1,656 1898, 1,901 1899, 2,328 1900, 2,435 1901, 24,079 2,448 1 to 9.83 1902, 25,653 2,858 1 to 8.97 1903, 25,585 2,855 1 to 8.96 1904, 1905, 1906, 1867, 1868, 1869, 1870, 1871, MINNESOTA. 2,809 52 1 to 54 3,002 73 1 to 41. 20 3,157 84 1 to 37.58 3,466 83 1 to 41.76 3,9.^6 111 1 to 35.64 [430 ] STATISTICS OF MARRIAGE AND DIVORCE. TSIN'S'ESOT A—continued. Ratio of Divorces YEARr Marriages. Divorces. to Marriages. 1872, 4,141 108 1 to 38.34 1873, . 4,655 137 1 to 34 1874, . 4,792 131 1 to 36.58 1875, . 4,874 135 1 to 36.10 1876, . 4,802 148 1 to 32.44 1877, . 4,652 140 1 to 33.22 1878, 5,079 151 1 to 33.63 1879, 5,506 176 1 to 31.27 1880, . 4,975 228 1 to 21. 82 1881, 6,443 223 1 to 28.88 1882, 8,441 277 1 to 30.47 1883, 9,029 301 1 to 30 1884, 9,111 328 1 to 27.77 1885, 9,479 358 1 to 26.47 1886, 9,131 379 1 to 24.09 1887, 1888, . 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, MISSISSIPPI. 49 59 75 85 105 170 169 176 171 172 [ 431 ] STATISTICS OF MARRIAGE AND DIVORCE. MISSISSIPPI— con^ini/erf. Marria^eB. Ratio of Divorces to Marriages. 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, 712 189 295 429 421 393 449 475 482 505 MISSOURI. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 366 387 426 491 615 584 621 664 668 683 728 737 727 930 951 [432] STATISTICS OF MARRIAGE AND DIVORCE. ULISSOVRI— continued. Marriages. Ratio of Divorces to Marriages. 1,029 1,107 1,158 1,193 1,217 MONTANA. 17 11 14 14 19 18 20 17 9 15 15 38 27 38 55 86 70 97 116 130 28 [ 433 ] STATISTICS OF MARRIAGE AND DIVORCE. MO'STAH A— continued. Ratio of Divorces YEAR. Marriages. Divorces. to Marriages. 1887 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1,598 228 1 to 7 1895, 1,694 263 1 to 6.44 1896, 1,686 245 1 to 6.88 1897, 1,730 294 1 to 5.88 1898, 1,984 291 1 to 6.80 1899, 2,073 336 1 to 6.17 1900, 2,194 355 1 to 6.18 1901, 2,305 446 1 to5.16 1902, 1903, 1904, 1905, 1906, NEBRASKA. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 10 23 39 30 49 37 80 87 81 106 115 130 184 198 191 271 315 314 338 436 [434] 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, STATISTICS OF MARRIAGE AND DIVORCE. H'EB'RASKA— continued. Marriages. Ratio of Divorces to Marriages. NEVADA. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 37 62 40 28 40 39 72 72 65 72 80 84 78 64 61 44 51 57 38 44 [435] STATISTICS OF MARRIAGE AND DIVORCE. NEVADA — continued. YEAR. Marriages. Divorces. Ratio of Divorces to Marriages. 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, NEW HAMPSHIRE. 1867, 136 1868, 143 1869, 186 1870, 149 1871, 149 1872, 197 1873, 212 1874, 281 1875, 232 1876, 266 1877, 237 1878, 257 1879, 265 1880, 2,670 339 1 to 7.87 1881, 2,S30 307 1 to 9.21 1882, 3,433 314 1 to 10.93 1883, 3,495 273 1 to 12.80 1884, 3,292 315 1 to 10.45 1885, 3,180 291 1 to 10.93 1886, 3,324 382 1 to 8.70 1887, 3,495 325 1 to 10.75 1888, 3,379 359 1 to 9.41 1889, 3,621 368 1 to 9.84 1890, 3,621 382 1 to 9.48 1891, 3,904 412 1 to 9.47 1892, 4,074 347 1 to 11.74 1893, . 4,090 398 1 to 10.27 1894, . 3,881 398 1 to 9.75 1895, . 4,015 407 1 to 9 86 1896, . 4,032 406 1 to 9.93 1897, . 3,776 429 1 to 8.80 1898, . 3,793 445 1 to 8.52 1899, . 3,741 435 1 to 8.60 1900, . 3,983 426 1 to 9.32 1901, . 4,001 482 1 to 8.30 [436] STATISTICS OF MARRIAGE AND DIVORCE, NEW HAMPSHIRE— con^mwerf. i-f.T, ir • T^- Ratio of Divorces ji-AK. Marnaees. Divorces. to Marriages. 1902, ..... 1903, 1904, 1905, 1906, 4,060 4,004 483 518 1 to 8.50 1 to 7.73 NEW JERSEY. 1867, 60 1868, . 79 1869, 79 1870, 89 1871, 83 1872, 84 1873, 92 1874, lOS 1875, 127 1876, 117 1877, 104 1878, 120 1879, 7,188 146 1 to 49.23 1880, 8,296 135 1 to 61. 4.-) 1881, 8,336 147 1 to 56.70 1882, 9,094 190 1 to 47.86 1883, 9,911 176 1 to 56.31 1884, 9,329 234 1 to 39.86 1885, 9,348 186 1 to 50.25 1886, 12,581 286 1 to 44 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, . 1905, . 1906, [ 437 ] 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, STATISTICS OF MARRIAGE AND DIVORCE. NEW MEXICO. Marriagea. 12 39 44 34 39 40 Ratio of Divorces to Marriagea. NEW YORK. 1867 771 1868, . . o - . 761 1869, . . . . . 824 1870, o o . . . 731 1871, . . . . . 668 [438] STATISTICS OF MARRIAGE AND DIVORCE. NEW YORK— continued. YEAR. Marriages. Divorces. Ratio of Divorces to Marriages. 1872 592 1873, 630 1874, 716 1875, 657 1876, 629 1877, 569 1878, 657 1879, 704 1880, 834 1881, 853 1882, 983 1883, 881 1884, 953 1885, 936 1886, 1,006 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 51,842 1897, 49,874 1898, 57,108 1899, 59,612 1900, 63,103 1901, 64,797 1902, . 68,903 1903, 72,998 1904, 71,616 Estimate based on reports 1905, for first ten months of the year. 1906, NORTH CAROLINA. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 21 24 22 41 22 37 46 53 65 [ 139 ] STATISTICS OF MARRIAGE AND DIVORCE. NORTH CAROLINA— continued. 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, 1906, 65 46 74 77 84 83 104 88 106 117 163 Ratio of Divorces to Marriages. 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, OHIO. 29,230 28,231 28,910 25,459 24,627 26,303 26,460 26,679 26,445 26,183 25,156 25,796 26,399 27,803 901 1 to 32.44 848 1 to 33.29 1,013 1 to 27.55 1,008 1 to 25.25 975 1 to 25.25 1,063 1 to 24.74 1,126 1 to 23.50 1,159 1 to 23 1,177 1 to 22.46 1,153 1 to 22.70 1,160 1 to 21.60 1,345 1 to 19.18 1,441 1 to 18.32 1,553 1 to 17.90 [440] STATISTICS OF MARRIAGE AND DIVORCE. OHIO — continued. Ratio of Divorces YEAR. Marria;;e5. Divorces. to Marriages. 1881 28,560 1,594 1 to 17.91 1882, 30,528 1,701 1 to 17.94 1883, 1884, 1885, 1886, 1887, 1888, 30,659 2s,7Ji) 28,773 28,034 29,816 30,012 1,758 1,746 1,840 1,889 1,963 2,148 1 to 17.43 1 to 16.44 1 to 15.63 1 to 15.15 1 to 15.16 1 to 13.65 1889, 1890, 1891, 31,231 32,255 33,890 2,270 2,306 2,544 1 to 14.15 1 to 13.98 1 to 13.32 1892, 1893, 34,755 35,071 2,737 2,913 1 to 12.70 1 to 12.03 1894, . 33,858 2,753 1 to 12.29 1895, 33,186 2,947 1 to 1 1 . 26 1896, 35,386 2.973 1 to 11.90 1897, 34,692 2,727 1 to 12.72 1898, 35,799 3,352 1 to 10.68 1899, 34.912 3,217 1 to 10.85 1900, 1901, 36.883 38,242 3,878 3,877 1 to 9.51 1 to 9.86 1902, 37,476 4,276 1 to 8.76 1903, 43,021 4,355 1 to 9.87 1904, 1905, 1906, OREGON. 81 66 77 64 81 79 64 99 96 110 120 138 152 174 169 170 216 188 210 [ 441 STATISTICS OF MARRIAGE AND DIVORCE. OREGON— cone: Thompson deserted his family in Miss- issippi, went to Arkansas and there obtained a divorce upon constructive service. The wife returned to her father's home in Alabama, and, after the divorce, the husband also went to Alabama, where he again married. He was prosecuted for and comicted of bigamy. The con^-iction was set side, how- ever, upon the ground that the guilt or innocence of the accused depended upon the question as to whether he had a bona fide domicil in Arkansas during the pendency of the proceedings for divorce. Harding v. Alden, 9 Maine, 140, was cited as authority. In a subsequent case, however, Turner v. Turner (1870), 44 Alabama, 4-37, the Supreme Court of -Alabama strictly lim- ited, as against a citizen of Alabama, the effect of a divorce rendered in another State upon constructive service. The parties were married in Alabama, where the husband deserted the wife, and located in Indiana, where he obtained a divorce upon constructive service. The wife remained in Alabama, and, after the granting of the divorce to the husband, she sued him in Alabama for a divorce and alimony. The husband pleaded the Indiana decree in bar. The trial court, however, held that the wife was entitled to maintain her suit and en- tered a decree for divorce and alimony. In affirming the de- cree the Supreme Court of Alabama, upon the authority of Thompson v. State, supra, said that the decree of divorce ob- tained by the husband in Indiana might protect him against prosecution for bigamy should he marry again in Alabama. Referring to that decree it further said (p. 450): [498] HADDOCK r. HADDOCK "But without stopping to inquire whether it was obtained by him by fraud, and therefore is \'icious on that account or not, it certainly cannot affect the rights of the complainant, except her right in the husband as husband. If it is valid, it unmarries him and sets him free from his marital vows to her. He is no longer the complainant's husband. But it does not settle her right to aUmony; 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 sur\dve him, nor any other interest of a pecuniary character she may have against him. ... It is the duty of the State to protect its own citizens, within its ovra borders. This is the natural compensation for allegiance. This high duty ex- tends to all the pecuniary rights of the citizens, as well as to the rights of security of person. ... No obUgation of comity is paramount to this duty. Without a constant and effective exertion of it, citizensliip would become a farce. . . . The wife is as much the citizen of the State as the husband, and is entitled to the protection of its laws to the same extent, so long as she remains within its jurisdiction. It would be a scandal to justice to imperil her, and sacrifice her most important and cherished rights upon a mere techni- cality; a technicaUty that often contradicts the truth. Wlien her protection requires it, it would be cruelly unjust for the State, of her actual residence and domicil, to repudiate its own right of jurischction to give her aid. I therefore think that the better opinion is, that she has the right to file her bill here, and to all the rehef that the coiu-t could give her, notv\ithstanding her husband might not be domiciled in this State at the commencement and during the whole pendency of her litigation with him. . . . "Then, if the State courts have competent jurisdiction in such a case, as undoubtedly they have, they may go on and exercise that jurisdiction in the manner and to the extent prescribed by their own laws. [499] THE LAW OF MARRIAGE AND DIVORCE. "Under the laws of this State, by the contract and con- summation of a marriage, the wife, if she has no separate es- tate, becomes entitled to dower in the husband's lands, and a certain distributive interest in his personal estate, if she survives him, and to temporary and permanent ahmony out of his estate upon a separation by divorce in her favor. These are rights that she cannot legally be deprived of without her consent or her fault. ... If this were not so, then these important statutory provisions in favor of the wife would be repealed or rendered null by a foreign divorce, of which she had no notice and no knowledge, during its whole progress through the forms of a foreign court. To sue in her own dom- icil is necessary for the protection of the wife. It, therefore, overrides the technical rule that the husband's domicil is also the domicil of the wife. . . . Here the testimony shows that the wife has no separate estate. The witnesses for the defendants say when she was married she 'brought notliing with her.' It also appears that during her connection with the defendant Matthew Turner, as his wife, she was a chaste, industrious, economical, faithful, useful and obedient wife; and that the husband's property is very considerable, worth possibly not less than one hundred thousand dollars. It is also shown that his three children by a former marriage are already sufficiently provided for. "Under such a state of facts the sum of thirty thousand dollars was not an unreasonable sum for permanent alimony to be allowed to the wife, nor the sum of eight hundred dollars too large for temporary ahmony. . . ." Indiana.— In Tolen v. Tolen (1831), 2 Blackf. 407, the facts were these: A wife, on being deserted in Kentucky, removed to and became domiciled in Indiana, and after a residence there of five years sued for a divorce from the non-resident husband. In an opinion of great length the court considered the question of its power to grant a divorce which would be valid in Indiana, and decided it had such power, but ex- [500] HADDOCK V. HADDOCK pressly reserved passing on the question whether the decree would have extraterritorial force. In Hood V. State (1877), 56 Indiana, 263, 271, it was declared that as an ex parte divorce in favor of one domiciled within the jurisdiction of a State, and against a non-resident, although founded upon constructive service, was valid as to the plain- tiff, "public policy demands that it should be held vaUd as to both parties." In Hilbish V. Battle (1896), 145 Indiana, 59, certain sections of the Indiana Revised Statutes, wherein it was provided that the divorce of one party to a marriage should dissolve the con- tract as to both, and that a divorce decreed in another State by a court having juris(Uction of the cause should have full effect in Inchana, were held to be appUcable to a decree of divorce granted in another State, in favor of a husband, upon constructive service, and the same effect was given to the decree, as to the rights of the wife in the property of the hus- band in Indiana, as if the tUvorce had been rendered in Indiana. Missouri.— In Gould v. Crow, 57 Missouri, 200, a decree of divorce regularly obtained by a husband in Indiana, on an order of pubUcation, without personal service, was held to operate as a divorce in favor of the husband in Missouri, so as to prevent the wife from claiming her dower in lands in Missouri o\\Tied by the husband. Harding v. Alden, 9 Maine, 140, was reUed upon as authority. A statute of Missouri, barring the claim of a wife for dower after divorce granted by reason^of her fauR, was held to apply to all divorces, whether obtained in Missouri or in other States, and whether obtained on personal service or by order of publication. The doctrine of Gould V. Crow was reaffirmed and appUed in Anthony v. Rice, 110 Missouri, 233. Wisconsin.— In Shafer v. Bushnell (1869), 24 Wisconsm, 372, an ex parte divorce granted a wife in Minnesota upon con- structive ser\dce of the defendant, a citizen of Minnesota, was held upon the grounds of comitv to be conclusive in Wisconsin [501] THE LAW OF MARRIAGE AND DIVORCE. in respect to the status or domestic and social condition of the wife. The decree was held to bar an action for criminal intercom-se against the person whom the complainant in the divorce suit married after the granting of the divorce. In Cook V. Cook (1882), 56 Wisconsin, 195, however, in an elaborate opinion, an ex parte divorce obtained in Michigan upon constructive service merely, by a husband who had de- serted his wife in Wisconsin, was held not to affect the status of the wife in Wisconsin nor to bar her from suing in Wiscon- sin for divorce, ahmony, allowance and a division of the prop- erty of such husband situated within Wisconsin. Deducing the law of the several States from the rulings of their courts of last resort which we have just reviewed and ignoring mere minor differences, the law of such States is em- braced within one or the other of the following heacUngs: a. States where the power to decree a divorce is recognized, based upon the mere domicil of the plaintiff, although the decree when rendered will be but operative within the borders of the State, wholly irrespective of any force which may be given such decree in other States. Under this heading all of the States are embraced with the possible exception of Rhode Island. h. States which decline, even upon principles of comity, to recognize and enforce as to their own citizens, within their own borders, decrees of divorce rendered in other States, when the com-t rendering the same had jurisdiction over only one of the parties. Under this heading is embraced Massachusetts, New Jersey (with the quahfication made by the decision in 59 N. J. Eq. 606) and New York. c. States which, whilst giving some effect to decrees of di- vorce rendered against its citizens, in other States where the court had jurisdiction of the plaintiff alone, either place the effect given to such decrees upon the principle of State comity alone, or make such hmitations upon the effect given to such decree as indubitably establishes that the recognition given [502] HADDOCK V. HADDOCK is a result merely of State comity. As the greater includes the less, this class of course embraces the cases under the previous heading. It also includes the States of Alabama, Maine, Ohio and Wisconsin. d. Cases which, although not actually so deciding, yet lend themselves to the view that ex parte decrees of divorce rendered in other States would receive recognition by virtue of the due faith and credit clause. And this class embraces Missouri and Rhode Island. Coming to consider, for the purpose of classification, the decided cases in other States than those previously re\'iewed, which have been called to our attention, the law of such States may be said to come under one or the other of the foregoing headings, as follows: Proposition a embraces the law of all the States, since in the decision of no State is there an intimation expressing the ex- ception found in the Rhode Island case which caused us to exclude that State from this classification. Under proposition b comes the law of the States of Penn- sylvania, Vermont and South Carohna. A line of decisions of the State of North Carolina would also cause us to embrace the law of that State within this classification, but for a doubt engendered in our minds as to the effect of the law of North Carohna on the subject, resulting from suggestions made by the North Carolina court in the opinion in the Bidwell case, 52 S. E. Rep. 58. Proposition c embraces the law of Kansas, Louisiana, Mary- land, Michigan, Minnesota, Nebraska and New Hampshire. And it is pertinent here to remark that in Michigan, 3 Comp. Laws Michigan (1897), par. 8617, c. 232, sec. 2, the obtaining of a cUvorce in another State from a citizen of Michigan is made cause for the granting of a divorce in Michigan to its citizens. A hke provision is also in the statutes of Florida. Rev. Stat. Florida (1902), sec. 1480. Under proposition d we embrace the remaining States, [503] THE LAW OF MARRIAGE AND DIVORCE although as to several the classification may admit of doubt, viz., California, Illinois, Iowa, Kentucky and Tennessee. It indubitably, therefore, follows from the special review we have made of cases in certain States, and the classification just made of the remaining State cases which were called to our attention and which we have previously cited in the mar- gin, that the contention is without foundation, that such cases estabhsh by an overwhelming preponderance that, by the law of the several States, decrees of divorce obtained in a State with jurisdiction alone of the plaintiff are, in virtue of the full faith and credit clause of the Constitution, entitled to be enforced in another State as against citizens of such State. Indeed the analysis and classification which we have made serves conclusively to demonstrate that the limited recog- nition which is given in most of the States to such ex parte decrees of divorce rendered in other States is wholly incon- sistent with the theory that such limited recognition is based upon the operation of the full faith and credit clause of the Constitution of the United States, and on the contrary is con- sistent only with the conception that such Hmited recognition as is given is based upon State comity. No clearer demon- stration can be made of the accuracy of this statement than the obvious consequence that if the full faith and credit clause were now to be held applicable to the enforcement in the States generally of decrees of divorce of the character of the one here involved it would follow that the law of nearly all of the States would be overthrown, and thus it would come to pass that the decisions which were rehed upon as estabhshing that the due faith and credit clause applies to such decrees would be over- ruled by the adoption of the proposition which it is insisted those decisions maintain. The only escape from this conclu- sion would be to say that the law of the States as shown by the decisions in question would remain unaffected by the ruHng of the full faith and credit clause because not repugnant to that clause. Tliis would be, however, but to assert that [504] HADDOCK V. HADDOCK the full faith and credit clause required not that full faith and credit be given in one State to the decrees of another State, but that only a limited and restricted enforcement of a decree of one State in another would fulfill the requirements of that pro\dsion of the Constitution. To so decide would be to de- stroy the true import of the full faith and crecUt clause as pointed out in the outset of this opinion. Thus, in its ultimate aspect the proposition rehed upon reduces itself to this, either that the settled law of most of the States of the Union as to di- vorce decrees rendered in one State, where the court render- ing the decree had jurisdiction only of the plaintiff, must be held to be invalid, or that an important provision of the Con- stitution of the United States must^be shorn of its rightful meaning. Without questioning the power of the State of Connecticut to enforce within its own borders the decree of divorce which is here in issue, and without intimating a doubt as to the power of the State of New York to give to a decree of that character rendered in Connecticut, within the borders of the State of New York and as to its own citizens, such efficacy as it may be entitled to in view of the pubHc poUcy of that State, we hold that the decree of the court of Connecticut rendered under the circumstances stated was not entitled to obligatory en- forcement in the State of New York by virtue of the full faith and credit clause. It therefore follows that the court below did not violate the full faith and credit clause of the Constitu- tion in refusing to admit the Connecticut decree in evidence; and its judgment is, therefore, Afftrnned. Mr. Justice Brown, wdth whom were Mr. Justice Harlan, Mr. Justice Brew^er and Mr. Justice Holmes, dissenting. Marriage between these parties was solemnized June 4, 1868. They separated the same day, without a consummation, and [505] THE LAW OF MARRIAGE AND DIVORCE have never lived together since. No matrimonial domicil was ever established in New York or elsewhere. Defendant left New York soon after the wedding, drifted about the country for several years, and finally settled in Connecticut in 1877", remained there twelve years, during which time, and in 1881, he obtained a divorce in the Superior Court of Litchfield County, which he now sets up in defense of tliis action. Plaintiff took no steps for twenty-six years to obtain a legal separation or maintenance, when, in July, 1894, she applied to the Superior Court of the State of New York for a summons by publication. The defendant did not appear, and a decree was rendered against him by default, separating the parties and granting alimony of $1,500 a year. This decree appears to have been abortive, so far as respects alimony at least, prob- ably for lack of personal service on the defendant. Meantime, and in 1891, defendant had inherited a considerable property from his father. Tliis action was begun by a summons dated June 3, 1899, thirty-one years after the marriage; was served upon the de- fendant, who answered December 18, 1899, setting up, amongst other things, the decree of the Superior Court of Litchfield County, dissolving the marriage, the vaHclity of which presents the only Federal question in this case. 1. This decree is attacked upon the ground that the Connec- ticut court acted without jurisdiction of the parties lawfully obtained. The record in that case shows that notice of the pendency of the petition was ordered to be pubhshed in a Litchfield paper, and also that a copy of the petition be sent to the respondent by mail, postage paid, at Tarrytown, New York. While there is no affidavit of the publication of the notice, there is a recital in the decree "that said complaint and writ have been duly served upon the defendant pursuant to an order of notice made thereon by the clerk of this court." This is sufficient prima facie evidence of the publication to entitle the record to be received. Applegate v. Lexington &c. [506] HADDOCK V. HADDOCK Mining Co., 117 U. S. 255, 268, wherein it was said by the court that "while it must be conceded that, in order to give the court jurisdiction over the persons of the defendants, all the steps pointed out by the statute to effect constructive serv- ice on non-residents were necessary, yet it does not follow that the evidence that the steps were taken must appear in the record, unless indeed the statute, expressly or by impUcation, requires it. . . . Therefore every presumption not in- consistent with the record is to be indulged in, in favor of its jurisdiction. . . . It is to be presumed that the court be- fore making its decree took care to see that its order for constructive service, on which its right to make the decree de- pended, had been obeyed." As the record was rejected for reasons appearing only upon its face, it is unnecessary to decide whether the recitals in the decree can be contradicted. Possibly the New York court might have assailed its vaHdity by showing that, notwithstand- ing the recitals in the record, the court acquired no jurisdic- tion of the defendant by failure to comply with the order of the court with reference to the pubUcation of notice in a news- paper, or in sending a copy of the petition and complaint to the defendant by mail at Tarrytown, New York, the last known place of residence. The fact that the referee refused to admit the record, even as prima facie evidence, foreclosed any defense founded upon the actual failure to obtain jurisdiction over the defendant. There is no doubt of the proposition that a decree of divorce may be lawfully obtained at the matrimonial domicil, notwith- standing that the defendant may have taken up his or her resi- dence separate from the other party in another State, provid- ing that the law of the domicil with respect to the personal service or pubhcation be scrupulously observed. Atherton v. Atherton, 181 U. S. 155. Doubtless the jurisdiction of the court granting the divorce may be inquired into, and if it appear that the plaintiff had not [507] THE LAW OF MARRIAGE AND DIVORCE acquired a bona fide domicil in that State at the time of insti- tuting proceedings, the decree is open to a collateral attack, Bell V. Bell, 181 U. S. 175, and a recital in the proceethngs of a fact necessary to show jurisdiction may be contradicted, Thompson v. Whitman, 18 Wall. 457; Slreitwolf v. Streitwolf, 181 U. S. 179; Andrews v. Andreios, 188 U. S. 14. Subject to these conditions, each State has the right to reg- ulate the marital status of its citizens, at least so far as to determine in what manner and by whom marriages may be sol- emnized, what shall be deemed the age of consent, what obligations are assumed, what property rights are created, for what causes divorces shall be granted, for what length of time the domicil of plaintiff shall have been acquired prior to the institution of the proceedings, and in what manner notice shall be given to the defendant. Nor is the power of the leg- islature in this connection ousted by the fact that the other party to the contract resides in another State, provided that in case of proceecUngs adverse to such party he or she shall be given such notice as due process of law requires. If such proceedings be in rem or quasi in rem, notice by pubhcation is ordinarily deemed sufficient. But in case of actions in per- sonam for the recovery of damages, personal service within the jurisdiction is vital to the proceedings. Pennoyer v. Neff, 95 U. S. 714; Huling v. Kaiu Valley Railway and Improve- ment Co., 130 U. S. 559. By the laws of Connecticut of 1878, c. 71, p. 305, exclusive jurisdiction is given to the Superior Courts to grant divorces for several causes, among which are " willful desertion for three years with total neglect of duty," with a further provision (Gen. Stats. 4555), "that plaintiff shall have continuously re- sided in the State three years next before the date of the com- plaint, " with certain exceptions not material t(3 be noticed. A further provision, sec. 4553, that, "where the adverse party resides out of, or is absent from the State, or the whereabouts of the adverse party is imknown to the plaintiff, any judge or [508] HADDOCK V. HADDOCK clerk of the Supreme Court of Errors, or the Superior Court, or any county conunissioner, may make such order of notice as he may deem reasonable, and, such notice having been given and duly proved to the court, it may hear such complaint if it find that the 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 may hear such case, or, if it see cause, order such further notice to be given as it may deem reasonable, and continue the complaint until the order is compHed with." The complaint alleged a willful desertion of the plaintiff for more than three years, and the court found this to be the fact. 2. The case turns upon the question whether the Superior Court of Litchfield County gained jurisdiction by a residence of the plaintiff within the State for more than three years. The testimony also showed that the defendant had acquired a sep- arate domicil in New York, and had been living there for about thirteen years. In discussing this question two propositions may be admitted at once, and discarded as having no relevancy to the case: 1. That a judgment for damages in an action in personam is vahd only when personal service has been made upon the defendant within the jurisdiction of the court rendering the judgment. This disposes at once of the cases of Pennoyer v. Neff, 95 U. S. 714; of Mississippi &c. R. R. Co. v. Ward, 2 Black, 485, where an Iowa court had undertaken to abate a nuisance on the IlHnois side of the Mississippi river; and of Delaware &c. R. R. Co. v. Pennsylvania, 198 U. S. 342, where a State had attempted to tax property having a permanent situs in another State. 2. That the courts of one State may not grant a divorce against an absent defendant to any person who has not ac- quired a bona fide domicil in that State. The same rule appHes if he has removed thither solely for the purpose of acquiring a domicil and obtaining a divorce for a cause, which would have [509] THE LAW OF MARRIAGE AND DIVORCE been insufficient in the State from which he removed. Andrews V. Andrews, 188 U. S. 14. The jurisdiction of the Connecticut court in this case is shown, not by the facts as they appear in this case, but from the record in that case, and primarily from the petition, which under the practice in that State is incorporated with the sum- mons. The allegations are: "On the first day of January, 1869, the defendant willfully deserted the plaintiff, and has continued said desertion, with total neglect of all the duties of the marriage on her part to be performed to the date of this writ, being for more than three years, and during the plaintiff's residence in this State." It is conceded that such desertion is good ground for a di- vorce in Connecticut, which may be granted to a plaintiff who has continuously resided in the State three years next before the date of the complaint. The complaint obviously made a case for divorce under the statute. The court found that the complaint and writ had been duly served on the defendant, pursuant to an order of notice made thereon by the clerk; that the allegations of the complaint had been sustained and a di- vorce was granted. The case then resolves itself into the single question whether a divorce granted to a plaintiff lawfully domiciled within a State as against a defendant domiciled in another State, who has been served by pubHcation or letter only, is a vaUd defense to a suit by the latter for a separation and alimony. Certain cases in this court tend strongly to support the pro- ceedings in Connecticut. Strader v. Graham, 10 How. 82, was an action to recover the value of certain slaves carried into Ohio, a free State. The case was dismissed, as involving a question of the local law of Kentucky, the court remarking: " Every State has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory, . . . and that it was exclusively in the power of Kentucky, " (wherein the suit was brought) " to determine [510] HADDOCK V. HADDOCK for itself whether their employment in another State should or should not make them free upon their return. " In Barber v. Barber, 21 How. 582, a New York court decreed a separation and ahmony to the wife. The husband removed to Wisconsin for the purpose of placing himself beyond the jurisdiction of the court which could enforce it, and there ob- tained a divorce a vinculo upon the ground of abandonment. The sole question raised by the record was: "Whether a wife divorced a mensa et thoro can acquire another domicilation in a State of this Union different from that of her husband, to entitle her by her next friend to sue him in a court of the United States, having equity jurisdiction, to recover from liim alimony due, and which he refuses to make arrangements to pay; and whether a court of equity is not a proper tribunal for remedy in such a case." It was a suit to recover upon a judgment obtained in New York before proceedings instituted in Wisconsin, and was sus- tained. Obviously, the Wisconsin divorce was no defense, but its vaUdity was not impugnisd. Cheever v. Wilson, 9 Wall. 109, turned upon certain rights of property, and incidentally upon a divorce obtained in In- diana, in a suit in which the defendant appeared. The case, however, is valuable for two questions decided: First, that a decree of divorce, valid and effectual by the laws of the State in which it was obtained, is valid and effectual in all other States; second, that a wife may acquire a domicil different from her husband's whenever it is necessary or proper that she should have such a domicil; and on such a domicil, if the case otherwise allow it, may institute proceechngs for divorce, though it be neither her husband's domicil nor have been the domicil of the parties at the time of the marriage, or of the offense. Of course, it follows that if the wife may obtain a new dom- icil her husband may do likewise, as was done in this case, after the separation or abandonment had taken place. In dehver- ing the opinion, Mr. Justice Swayne observed: "The decree [511] THE LAW OF MARRIAGE AND DIVORCE (of divorce) was valid and effectual according to the law and adjudications, in Indiana. " The Constitution and laws of the United States give the de- cree the same effect elsewhere which it had in Indiana. " ' If a judgment is conclusive in the State where it is rendered, it is equally conclusive everywhere, ' in the courts of the United States. " In Cheely v. Clayton, 110 U. S. 701, a divorce obtained in a Territorial court, upon notice by pubUcation insufficient under the laws of the Territory, was held to be of no effect. The court, however, observing: "If a wife is Uving apart from her husband without sufficient cause, his domicil is in law her dom- icil; and in the absence of any proof of fraud or misconduct on his part, a divorce obtained by him in the State of his dom- icil, after reasonable notice to her, either by personal service or by publication, in accordance with its laws, is vahd, although she never in fact resided in that State, " citing Burlen v. Shan- non, 115 Massachusetts, 439, and Hunt v. Hunt, 72 U. S. 217. In Maynard v. Hill, 125 U. S. 190, a legislative divorce was upheld, and it was said that the fact that no cause existed for the divorce, and that it was obtained without the knowledge of the wife, cannot affect the validity of the act. It was fur- ther said that though the conduct of the husband merited the strongest reprobation, his abandonment of his wife, his loose morals and shameless conduct could have no bearing upon the power of the assembly to pass the act. Four recent decisions in this court are too important to pass imnoticed. In Bell v. Bell, 181 U. S. 175, and in Streitwolf v. Streitwolf (p. 179), it was held that a divorce obtained in a State in which neither party was domiciled, upon service by publication and in another State, was entitled to no faith and credit. These decisions were unanimous. And in Andrews v. Andreivs, 188 U. S. 14, that a divorce obtained by one who had gone into another State to procure a divorce in fraud of the law of the domicil, was also invalid. [512] HADDOCK V. HADDOCK There remains the case of Atherton v. Atherton, 181 U. S. 155, a divorce obtained by a husband in Kentucky which had been the matrimonial domicil, though the wife had been absent from the State for several months, and apparently had attempted to acquire a new domicil in New York. The court took care to confine the case to the one point decided, namely, the validity of a divorce obtained at the matrimonial domicil. The court out of abundant caution expressly disclaimed that the case involved the vaUdity of a divorce granted, on constructive service, by the court of a State in which only one of the parties ever had a domicil; nor the question to what extent the good faith of the domicil may be afterwards inquired into. " In this case, the divorce in Kentucky was by the court of the State, which had always been the undoubted domicil of the husband, and which was the only matrimonial domicil of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky. " While the Atherton case, as already stated, was confined to a divorce obtained at the matrimonial domicil, the cases cited by Mr. Justice Gray in his opinion relate to divorces obtained in a State which was the domicil only of the complaining party, and are practically the same as those cited by him in his opinion as Chief Justice of Massachusetts in Burlen v. Shannon, 115 Massachusetts, 438. In reading the two cases together one is strongly impressed with the idea that in the Atherton case he had the former case in mind, and gave it such approval as the facts in the latter case would warrant. Not only had the Court of Appeals of Kentucky decided that a wife residing in that State was entitled to obtain a decree of divorce against her husband who had left the State, Rhyms v. Rhyms, 7 Bush, 315; Purzel V. Purzel, 91 Kentucky, 634, but a number of cases from other States were cited holding to the same principle. The opinion of the court in the present case admits that where the domicil of the husband is also the domicil of mat- 33 [513] THE LAW OF MARRIAGE AND DIVORCE rimony, the courts of that domicil may disregard an unjusti- fiable absence of the wife therefrom, and treat her as having her domicil there for the purpose of dissolving the marriage as to both parties, and that such dissolution would be recognized in all other States by virtue of the full faith and credit clause, citing to this effect Atherton v. Atherton, 181 U. S. 155, and, as a corollary therefrom, it is admitted that no question can arise concerning the right of the State of Connecticut to give effect to a decree of divorce rendered in favor of the husband while domiciled in that State. The question is, undoubtedly, as stated, whether the Connecticut court, in virtue of the domicil of the husband in that State, had jurisdiction to render a decree against the wife which was entitled to be enforced in other States, under the full faith and credit clause. I deny, however, that the final question is whether this would be enforcing a personal judgment rendered in another State against the defendant, over whom the court rendering the judg- ment had not acquired jurisdiction. A proceeding for divorce is not in 'personam nor of an exceptional character, except so far as all proceedings in rem are governed by a different rule from that appUcable to proceedings in personam. The vahdity of the latter class depends upon personal service of the defend- ant being obtained within the jurisdiction. The vahdity of the former depends upon the jurisdiction of the court over the res — in this case the marriage relation, the domicil of the plain- tiff, and such jurisdiction over the defendant as is consonant with the general principles of the constitution with regard to due process of law. The propositions of the opinion, as we understand it, may be summarized as follows : That, if one government by virtue of its authority over mar- riage, may dissolve the tie as to citizens of another government, that other government would have a similar power, and hence the right of every government over its own citizens might be rendered nugatory by the exercise of the power which every [514] HADDOCK V. HADDOCK other government possesses. To illustrate by the present case: That, if the husband may desert his original domicil in New York, go to the State of Connecticut, acquire a domicil there and procure a divorce which would be binding in New York as to the party there domiciled, it would follow that the power of the State of New York as to the dissolution of the marriage, as to its domiciled citizen, would be of no practical avail. The opinion, however, fails to state the logical result of this propo- sition, viz., that no divorce would be possible in either State without a personal ser\dce upon the other within the State. If the husband, having his domicil in Coimecticut, could not ob- tain a divorce against his vdie domiciled in New York without a personal service, it follows that the wife domiciled in New York could not obtain a divorce against her husband in that State without a personal service there. Undoubtedly the laws of some States are more hberal upon the subject of chvorce than those of other States, but that does not affect the question. If the complaining party has acquired a domicil in the State in wliich he institutes proceedings, he is entitled to the benefit of the laws of that State with respect to the causes of divorce. It is argued that, as the Constitution delegated no authority to the Government of the United States on the subject of mar- riage and divorce, yet, if the vahdity of the Connecticut cUvorce in this case be sustained, it follows that the destruction of the power of the States over the dissolution of marriage of its own citizens would be brought about by the full faith and credit clause of the Constitution. But this was the very point de- cided in the Atherton case, where a divorce obtained in Ken- tucky by pubhcation was held good in New York, as against a proceeding by the wife for a divorce in that State. It is true that the matrimonial domicil was in Kentucky. But this does not affect the proposition asserted in the opinion, that the decree did work a dissolution of the marriage, as to her, by the operation of the full faith and credit clause of the Constitution, [515] THE LAW OF MARRIAGE AND DIVORCE and to that extent it clicl work a destruction of the power of the State of New York over the dissolution of the marriage. But the argument to that effect was not considered by this court to be sound. It does undoubtedly follow that the res, that is, the marriage relation, was as much in the State of New York as it was in the State of Connecticut, but it does not fol- low that the action of the Connecticut court with respect to that res is not as much obligatory in New York as in Connect- icut. It is of the very essence of proceedings in rem that the decree of a court with respect to the res, whether it be a vessel, a tract of land or the marriage relation, is entitled to be re- spected in every other State or country. The status fixed by the adjudication in the State of the former is operative every- where. Indeed, the proposition is so elementary as not to need the citation of an authority. The conclusion of the argument is that, the courts of New York having the same power to decree a dissolution of the marriage at the suit of the wife, that the courts of Connecticut would have to make a similar decree at the suit of the husband, it would become a mere race of diUgence between the parties in seeking different forums in other States; or the celerity by which in such States judgments of divorce might be procured, would have to be considered in order to decide which forum was controlhng. Granting this to be the case, does not every plea of res adjudicata presuppose a prior judgment, and is it a defense to such plea that such judgment was obtained by su- periority in a race of diligence? The whole doctrine is founded, if not upon the doctrine of superior diligence, at least upon the theory of a prior judgment, which fixes irrevocably the rights of the parties, whenever and wherever these rights may come in question. Nor is the rule less operative where suits are in different States and the laws applicable to the questions therein arising are different. To illustrate: Suppose a note and mort- gage were given for usurious interest, and the mortgage was sought to be foreclosed in a State where, by statute, usury [516] HADDOCK V. HADDOCK would invalidate both principal and interest, and a decree were obtained dismissing the bill, can it be doubted that if the note were sued upon in another State where usury did not invaHdate the security the plea of res adjudicata would be sustained upon the ground that the rights of the parties had been definitely fixed in the suit for the foreclosure of the mortgage? It seems to me the same rule appHes in this case. So long as no proceed- ings are taken, the marriage would remain valid both by the laws of Connecticut and of New York. But if a suit be insti- tuted by either party, by the husband for a divorce or by the "wife for a maintenance, and the question of marriage or no marriage be made an issue, and decided in the case first brought, that decree is forever binding upon both parties. Had the wife in this case brought suit to dissolve the marriage, or for a main- tenance in affirmation of the marriage, the decree of the court in New York would have been as binding upon the court in Connecticut as the decree obtained in Connecticut ought to be upon the wife in New York. The cases in the State courts, with a few exceptions, herein- after noted, overwhelmingly preponderate in holding that where the plaintiff has acquired a bona fide domicil in a particular State he may lawfully appeal to the courts of that State for a dissolution of the marriage tie, for the causes permitted by its statutes, and may call in the non-resident defendant by publication. To abstract all these cases would unduly pro- long this opinion. In many of them the fuU faith and credit clause of the Con- stitution does not seem to have been called to the attention of the court, and the case was disposed of upon principles of com- ity, which give to the court a certain latitude of discretion, whereas, under the full faith and credit clause, the considera- tion given to a decree in the State where it is rendered is oblig- atory in every other State. One of the earhest of these cases is that of Harding v. Alden, 9 Maine, 140, in wliich the parties separated, the husband going [517] THE LAW OF MARRIAGE AND DIVORCE to North Carolina and the wife to Rhode Island. She began proceedings there, wliich culminated in a divorce for adultery committed in North CaroHna, the husband having been person- ally cited to appear, but refusing to do so. The divorce was held to be vahd, the court observing that "the protection of innocent parties and the purity of pubhc morals require that divorces lawfully pronounced in one jurisdiction, and the new relations thereupon formed, should be recognized as operative and binding everywhere, " in the absence of fraud or collusion. The ruling was that the wife was entitled to dower in lands of which the husband was seized during coverture, the statute expressly giving the right where divorce was decreed for the cause of adultery, as if the husband were dead. In Barber v. Root, 10 Massachusetts, 260, the parties origi- nally domiciled in Massachusetts removed to Vermont, and es- tabhshed a permanent domicil there. The court, while repu- diating the idea that a chvorce could be granted to a person who was not domiciled in Vermont, held the divorce to be good. In Hood V. Hood, 11 Allen, 196, a divorce obtained in IlUnois by the husband for desertion, upon notice by publication in a newspaper, was held to be vaUd as against the wife, although she was then Hving in Massachusetts under an agreement on his part to pay her a certain sum per week; and although she had no actual notice of the proceedings, and was not in lUinois during the pendency thereof. It was further held that she could not, in a hbel for divorce brought by her in Massachusetts, offer evidence that the Ilhnois decree was obtained by fraud, and upon facts which would not entitle her to a divorce in Massachusetts. In a subsequent case between the same par- ties, 110 Massachusetts, 463, the court again decided that the Ilhnois decree could not be impeached, and that she was not entitled to dower in any lands of which the husband was seized during the coverture. The whole subject was very carefully considered in Burlen [518] HADDOCK V. HADDOCK V. Shannon, 115 Massachusetts, 438, which was an action against the husband for board furnished the wife. The hus- band, whose wife was living apart from him without justifiable cause, removed to Indiana, acquired a domicil there and ob- tained a decree of divorce by pubhcation, and by leaving a summons at her abode in ^lassachusetts. The divorce was held to be vaUd in Massachusetts as to all persons, although the wife had never been in IncUana, never appeared in the suit there, had no knowledge that her husband contemplated going to that State, or had left Massachusetts, until after he had filed his libel for divorce. The authorities are reviewed by Mr. Justice Gray, and the conclusion reached that the divorce in Indiana was vaHd. Cummington v. Belchertown, 149 Massachusetts, 123, was an action to recover expenses incurred by the plaintiff for the support of an insane pauper. The husband had removed to another State and procured a decree annulhng the marriage on the ground of fraud in conceaHng from him the fact of in- sanity before their marriage. Notice of the proceedings was served upon her, but she was not represented, and it was held that the decree was insufficient to annul her marriage in Mass- achusetts. It was held, under the famihar rule that the ju- risdiction of the foreign court may be inquired into, that the wife, when the proceedings were commenced and concluded was utterly insane, and that the record of the New York courts showed her to have been so, and that no guardian was ap- pointed. The case was disposed of as one over which the New York court had acquired no jurisdiction. It does not qualify in any way the previous case of Burlen v. Shannon. The case of Ditson v. Ditson, 4 R. I. 87, is directly in point, and I understand it to be so admitted. It was held that a divorce in Rhode Island on the ground of desertion was vahd, though the husband had never been within the jurisdiction of Rhode Island, and only constructive notice of the pendency of the petition had been given him. [519] THE LAW OF MARRIAGE AND DIVORCE The rule in Kentucky is settled in Rhyms v. Rhyms, 7 Bush. 316, in wliich a wife proceeded against her husband as a non- resident by a warning order, and it was held that the court liad jurisdiction to grant her a divorce. Chief Justice Robertson remarking: ''It would be a reproach to our legislation if a faithless husband in Kentucky could, by leaving the State, de- prive his abandoned wife of the power to obtain a divorce at home." In HmvJdns v. Ragsdale, 80 Kentucky, 353, it was held that a divorce obtained by the husband in Indiana by constructive service determined the status of the party in Ken- tucky, and that under the statutes of that State it barred all claim to curtesy or dower in Kentucky lands. To the same effect is Purzel v. Purzel, 91 Kentucky, 634. The law of Cahfornia is settled in In re Newman, 75 Cahfor- nia, 213, to the effect that a suit for divorce, so far as it affects the status of the parties and the custody of their children, is a proceeding in rem, and service by publication on a non- resident defendant is good. This ruhng was repeated in In re James, 99 California, 374, where it is declared that such decree is equally valid in other States. Nowhere is the rule more strongly asserted than in Tennessee, where a decree obtained in Illinois by pubhcation was sustained in Thorns v. King, 95 Tennessee, 60, and where it seems to have been held that the decree could not be impeached, even by showing the absence of necessary residence. In Cooper v. Cooper, 7 Ohio St. 238, it was held that a di- vorce granted in Indiana precluded an application for a divorce and alimony in Ohio. In Cox v. Cox, 19 Ohio St. 502, the va- lidity of a foreign decree of divorce obtained by constructive service, except so far as regarded the question of ahmony, was sustained. The same ruling was made in Doerr v. Forsijthe, 50 Ohio St. 726, holding that while the Indiana divorce was good, it did not affect the property rights of the wife in the State of Ohio. The rule in Missouri is stated in Gould v. Crow, 57 Missouri, [520] HADDOCK V. HADDOCK 200, that a divorce regularly obtained by the husband in In- diana on an order of publication operates as a divorce in liis favor in Missouri, so as to prevent liis wdfe from claiming dower in lands owned by him in that State. The decree so pro- nounced is a judgment in rem and is vahd everywhere under the Constitution and laws of the United States. A Uke ruling was made in Anthony v. Rice, 110 ^lissouri, 223. The law in Kansas is settled in Rodgers v. Rodgers, 56 Kan- sas, 483, to the effect that the courts of a sister State may dis- solve a marriage relation between a husband domiciled there and a wife domiciled in Kansas, by pubHcation, although un- known to her; but that such courts have no power to settle the title of lands in Kansas or control the custody of children residing there. But it was also decided in Chipman v. Chip- man, 48 Kansas, 636, that a wife having obtained a divorce in Ohio upon service by publication, was not entitled to dower in lands in Kansas fraudulently conveyed by her husband in fraud of her or others. In Smith v. Smith, 43 La. Ann. 1140, it is held that a wife may acquire a separate domicil from that of her husband where his conduct has been such as to furnish ground for divorce, and her marriage status becomes subject to the juriscUction of that domicil, and that the courts thereof may grant a divorce upon actual or constructive notice. The rights of the Louisiana courts to decree a divorce against an absentee by means of substituted ser\'ice is again affirmed in Butler v. Washington, 45 La. Ann. 279. The law of Wisconsin is the same. Shajer v. Bushnell, 24 Wisconsin, 372; Cook v. Cook, 56 Wisconsin, 195, though in the latter case the right of the wife to an interest in her hus- band's lands in Wisconsin was preserved. In Thompson v. State, 28 Alabama, 12, the right of the hus- band to emigrate and acquire a new domicil and procure a divorce upon pubhcation in the State of his domicil, was also affirmed. See also Turner v. Turner, 44 Alabama, 437. In [ 521 ] THE LAW OF MARRIAGE AND DIVORCE the latter case it is indicated that a foreign divorce did not settle the rights of the wife to dower in his lands, or any other interests of a pecuniary character. In Kline v. Kline, 57 Iowa, 386, a decree rendered in another State on service by pubHcation was recognized, except so far as it attempted to fix the custody of the minor children. In Van Orsdale v. Van Orsdale, 67 Iowa, 35, the property rights of the wife were recognized, but this right was limited to prop- erty within the State, and which the husband owned at the time of the divorce, and not to what he subsequently acquired" In this case it was said: ''The divorce was granted in May, 1880. In November, 1881, the defendant's father died in this State, possessed of certain property which the defend- ant inherited. Now, while it may be that the plaintiff might be entitled to ahmony if the defendant had owned property in the State at the time the divorce was procured in Nebraska, she cannot be so entitled because he has subsequently acquired property. The plaintiff, if entitled to alimony, was so entitled at the time the divorce was granted. The relation of the hus- band and wife then ceased, and neither party is entitled to any share or interest in property which may be subsequently acquired. " In Indiana the right of a wife domiciled there to a divorce against the husband who never resided in that State, and upon whom service was only obtained by pubUcation, is recognized in Tolen v. Tolen, 2 Blackford 407; Hood v. State, 56 Indiana, 263, and in Hilbish v. Hattle, 145 Indiana, 59, it was held that the wife had no rights in liis property by virtue of her mar- riage relations with the husband, though the court chd not in the divorce proceedings adjudicate the property rights of the parties. In Garner v. Gamer, 56 Maryland, 127, the power to grant a divorce against a non-resident, upon whom process had not been served, was recognized, but the right to a decree that the non-resident should not marry again was denied. [ 522 ] HADDOCK V. HADDOCK In Thurston v. Thurston, 58 Minnesota, 279, the divorce was recognized, though process was served outside of the State, But it was held that the question of aUmony was not res ad- judicata by reason of the judgment. The wife was allowed alimony out of property in Minnesota. The validity of foreign cUvorces obtained without personal service is recognized in Illinois, in Knowlton v. Knowlton, 155 Illinois, 158, and in Dunham v, Dunham, 162 lUinois, 589. The law in New Jersey appeared at one time to favor the contention of the wife in this case. The gist of the decisions seemed to be that a foreign decree is enforceable in another State only on the ground of comity. This was incUcated in Doughty v. Doughty, 28 N. J. Eq. 581, though the decree in that case was held to have been obtained by fraud. It was admitted that the decree obtained by the husband in Ilhnois was lawful and binding there, but it was held that it did not change the status of the wife in New Jersey, her citizenship there being ad- mitted. The case was properly decided on the ground that the husband went to Illinois to obtain a divorce, and acquired no bona fide domicil there. The same rule was recognized in Flower v. Flower, 42 N. J. Eq. 152, These cases, however, seem to have been overruled in Felt v. Felt, 59 N. J. Eq. 606, where it was held that the domicil of the complainant in a for- eign State was sufficient to give jurisdiction, notwithstanding the defendant had not been served with process there. The Chief Justice remarked in this case: "A concUtion of the law which makes the intercourse of a man and woman either le- gitimate or adulterous as they happen to be within the hmits of one State or another is not to be tolerated any further than is plainly required by pubHc policy. " This case evidently puts New Jersey in Une with the vast majority of other States. The cases of New York upon this subject are numerous and perhaps not wholly reconcilable, but we think that the law, as summarized in the last case of Winston v, Winston, 165 N. Y. 553, is adverse to the validity of a divorce obtained in another [523] THE LAW OF MARRIAGE AND DIVORCE State without service of process within the jurisdiction. Of the same tenor are the cases in Pennsylvania: Colvin v. Reed, 55 Pa. St. 375; Reel v. Elder, 62 Pa. St. 308. North Carolina: Irby V. Wilson, 1 Dev. & Bat. Eq. 568; Harris v. Harris, 115 N. Car. 587. South CaroUna: McCreery v. Davis, 44 S. Car. 195. ■ The law in this country then may be summarized as follows: In Maine, Massachusetts, Rhode Island, Kentucky, California, Tennessee, Ohio, Missouri, Kansas, Louisiana, Wisconsin, Ala- bama, Iowa, Indiana, Maryland, Minnesota, Illinois and New Jersey, the vahdity of a divorce obtained in another State by a party there domiciled in a proceeding where constructive service upon the defendant only is obtained, is fuUy recognized. In Ohio, Iowa and Minnesota, and perhaps also Louisiana and Alabama, her right to ahmony and to dower is preserved. But the very cases which Uinit the effect of the divorce, so far as property rights are concerned, restrict such rights to dower in lands of which the husband was seized during coverture, and inferentially at least to alimony from such property. It is also limited to property within the State where suit is brought. That her rights in her husband's property should extend to property acquired by him long after the divorce is nowhere indicated. The only States in which it is held that a party domiciled in another State may not obtain a divorce there by constructive service are New York, Pennsylvania, North and South Caro- lina. A proceeding for divorce is a suit in rem, with which is often incorporated a suit in personam. The res is aptly stated in Ellis V. Martin, 53 Missouri, 575, as " the status of the plaintiff in relation to the defendant to be acted on by the court. This relation being before the court in the person of the plaintiff, the court acts on it, and dissolves it by a judgment of divorce." The fact subsequently ascertained, that it may have been pro- cured by fraud or false testimony, is wholly beside the ques- [524] HADDOCK V. HADDOCK tion, as we shall hereafter show. The fact that the husband changed his domicil to another State, after the cause of action arose, is also immaterial. The status of the husband in this case was irrevocably fixed by the decree. It is unnecessary to con- sider how far it affected the status of the wife in New York, which, in respect to other questions, may be subject to the local law; but her relations as against her husband are con- trolled by the decree wMch fixed his status. Indeed, it would be a reproach to our jurisprudence if an injured party residing in one State could not obtain a decree from the other party, without pursuing the offending party into another and distant State, where he or she may have chosen to estabUsh a domicil. In this case the referee reported that the defendant aban- doned the plaintiff without cause or justification. An excep- tion was taken to this report, and the testimony was sent up, which shows that the parties separated on the day of their marriage and have never lived together since. The testimony leaves it doubtful whether it was a case of abandonment or of separation by mutual consent. It does, however, show that plaintiff took no steps to assert her marital rights for twenty - six years after her marriage. Her husband having in the mean- time inherited a large amount of property from his father, she began suit for divorce a mensa et thoro and an allowance of alimony. This suit, however, was ineffectual so far as respects the alimony, as no personal service was obtained. She waited again for five years and began this proceeding both for a sep- aration, which she had already obtained, and for ahmony. We think the defendant may lawfully reply thus: "You are pursuing me as your husband for a separation de jure which has existed for thirty-one 3'ears de facto, and since 1894 de jure, and for an ahmony which is obviously the sole object of your proceeding. Your only claim against me is as your husband. I am not your husband. Twenty-three years ago the Superior Court of Litchfield County, Connecticut, in which State I had an actual and bona fide domicil, and which had had sole juris- [ 525 ] THE LAW OF MARRIAGE AND DIVORCE diction over my marital status for twelve years, liberated me from the bonds of matrimony and pronounced me a free man. In the meantime I have married another woman, and if your position be a sound one, I am, at least in the State of New York, a bigamist, and my wife an adulteress. " It is difficult to con- ceive of a case calhng more loudly for the apphcation of the general doctrine. As no question is made as to the validity of the Connecticut decree and its legal effect in that State, and as this court has repeatedly decided that, under the full faith and credit clause of the Constitution, a judgment conclusive in the State where it is rendered is equally conclusive everywhere in the courts of the United States, Cheever v. Wilson, 9 Wall. 108; Mill v. Duryea, 7 Cranch, 483; D'Arcy v. Ketchum, 11 How. 165, I do not understand how this decree can be denied the same effect in New York that it has in Connecticut without disregarding the constitutional provision in question. The result is that the husband, freed from the bonds of matrimony in Connecti- cut, was at Hberty to contract another marriage there, while the wife cannot even at this late day contract another marriage in New York without being guilty of adultery. 3. It is insisted, however, that the decree of the Connecticut court was obtained by the fraud of Haddock, in stating in his complaint that his wife had deserted him, when, in the present case, it appears from his own testimony that he, in fact, aban- doned and refused to Uve with her, or that they separated by mutual consent. The evidence upon which the Connecticut decree was granted does not appear in the record, and it is possible that the case was made out by the testimony of other witnesses. But, how- ever that may be, this decree cannot be impeached by evi- dence that it was obtained by false testimony, even though it be testimony of the plaintiff in that proceeding and the de- fendant in this. Hood v. Hood, 11 Allen, 196, in which it was held that ''both parties had their domicil in Ilhnois, and were [526] HADDOCK V. HADDOCK subject to the jurisdiction of its courts, and that the fact of desertion by the wife was conclusively settled between the parties by the decree in Illinois, and it was not competent for the wife to contradict it on a hbel filed by her afterwards in Massachusetts." See same case, 110 Massachusetts, 463. The rule is well settled that wliile a judgment or decree may sometimes be impeached for fraud, it can only be for a fraud extrinsic to the cause — as, that the judgment was collusively ob- tained to defraud some other person, and that it cannot be impeached by either of the parties thereto by reason of false testimony given at the time, or which must have been given to estabhsh the plaintiff's case, or even by perjury of one of the parties thereto. Granting that the testimony shows the ab- sence of good faith, and even perjury, on the part of the hus- band in the Connecticut suit, the decree cannot be opened for that reason, or for any reason, which would not logically involve a reexamination of the entire facts upon wliich the decree is obtained. Christmas v. Russell, 5 Wall. 290; United States v. Throckmorton, 98 U. S. 61; Sims v. Slocum, 3 Cranch, 300; Ammidon v. Smith, 1 Wheat. 447; Smith v. Lewis, 3 Johns. 157; Marriott v. Hampton, 7 T. R. 265; Demerit v. Lyford, 7 Fos- ter, 541, 546; Peck v. Woodbridge, 3 Day, 30; Dilling v. Mur- ray, 6 Indiana, 324; Homer v. Fish, 1 Pick. 435; Lewis v. Rogers, 16 Pa. St. 18; Sidensparker v. Sidensparker, 52 Maine, 481; B. & W. R. R. Company v. Sparhawk, 1 Allen, 448; Dam- port V. Sympson, Croke, Ehz'bth, 520; Eyres v. Sedgwicke, Croke, James, 601; Mason v. Messenger, 17 Iowa, 261, 272; Walker v. Ames, 2 Connecticut, 488 ; White v. Merritt, 7 N. Y. 352. When it is considered that the status of the defendant was fixed by the decree of the Connecticut court in 1881, in a pro- ceeding of which his wife had due notice, that upon the faith of this decree he remarried the follomng year, and that the plaintiff made no move to establish her conjugal rights for thir- teen years thereafter, and for twenty-six years after her mar- riage, the injustice of holding all these proceedings to be null [527] THE LAW OF MARRIAGE AND DIVORCE and void, even upon the assumption of perjury committed by the defendant, becomes the more manifest. We tliink that at least the record should have been received. I regret that the court in this case has taken what seems to me a step backward in American jurisprudence, and has vir- tually returned to the old doctrine of comity, which it was the very object of the full faith and credit clause of the Constitu- tion to supersede. Mr. Justice Holmes, with whom concurred Mr. Justice Harlan, Mr. Justice Brewer and Mr. Justice Brown, dis- senting. I do not suppose that civilization will come to an end which- ever way this case is decided. But as the reasoning which pre- vails in the mind of the majority does not convince me, and as I think that the decision not only reverses a previous well- considered decision of this court but is likely to cause consid- erable disaster to innocent persons and to bastardize children hitherto supposed to be the offspring of lawful marriage, I think it proper to express my views. Generally stated, the issue is whether, when a husband sues in the court of his dom- icil for divorce from an absent wife on the ground of her deser- tion, the jurisdiction of the court, if there is no personal serv- ice, depends upon the merits of the case. If the wife did desert her husband in fact, or if she was served with process, I under- stand it not to be disputed that a decree of divorce in the case supposed would be conclusive, and so I understand it to be admitted that if the court of another State on a retrial of the merits finds them to have been decided rightly its duty will be to declare the decree a bar to its inquiry. The first form of the question is whether it has a right to inquire into the merits at all. But I think that it will appear directly that the issue is narrower even than that. In Atherton v. Atherton, 181 U. S. 155, a divorce was granted, on the ground of desertion, to a husband in Kentucky against [528] HADDOCK V. HADDOCK a wdfe who had estabhshed herself in New York. She did not appear in the suit and the only notice to her was by mail. Before the decree was made she sued in New York for a divorce from bed and board, but pending the latter proceedings the Kentucky suit was brought to its end. The husband appeared in New York and set up the Kentucky decree. The New York court found that the wife left her husband because of his cruel and abusive treatment, without fault on her part, held that the Kentucky decree was no bar and granted the wife her divorce from bed and board. The New York decree, after being af- firmed by the Court of Appeals, was reversed by this court on the ground that it did not give to the Kentucky decree the faith and credit which it had by law in Kentucky. Of course, if the wife left her husband because of his cruelty and without fault on her part, as found by the New York court, she was not guilty of desertion. Yet this court held that the question of her desertion was not open but was conclusively settled by the Kentucky decree. There is no difference, so far as I can see, between Atherton v. Atherton and the present case, except that in Atherton v. Atherton the forum of the first decree was that of the matrimo- nial domicil, whereas in this the court was that of a domicil afterwards acquired. After that decision any general objec- tion to the effect of the Connecticut decree on the ground of the wife's absence from the State comes too late. So does any general objection on the ground that to give it effect invites a race of diligence. I therefore pass such arguments without discussion, although they seem to me easy to answer. More- over, Atherton v. Atherton decides that the jurisdiction of the matrimonial domicil, at least, to grant a divorce for the wife's desertion without personal service, does not depend upon the fact of her desertion, but continues even if her husband's cruelty has driven her out of the State and she has acquired a separate domicil elsewhere upon the principles which we all agree are recognized by this court. 34 [529] THE LAW OF MARRIAGE AND DIVORCE. I can see no ground for giving a less effect to the decree when the husband changes his domicil after the separation has taken place. The question whether such a decree should have a less effect is the only question open, and the issue is narrowed to that. No one denies that the husband may sue for divorce in his new domicil, or, as I have said, that if he gets a decree when he really has been deserted, it will be binding every^vhere. Hawkins v. Ragsdale, 80 Kentucky, 353, cited 181 U. S. 162. Cheely v. Clayton, 110 U. S. 701, 705. It is unnecessary to add more cases. The only reason which I have heard suggested for holding the decree not binding as to the fact that he was deserted, is that if he is deserted his power over the matrimo- nial domicil remains so that the domicil of the wife accompanies him wherever he goes, whereas if he is the deserter he has no such power. Of course this is a pure fiction, and fiction always is a poor ground for changing substantial rights. It seems to me also an inadequate fiction^ since by the same principle, if he deserts her in the matrimonial domicil, he is equally powerless to keep her domicil there, if she moves into another State. The truth is that jurisdiction no more depends upon both parties having their domicil within the State, than it does upon the presence of the defendant there, as is shown not only by Ath- erton v. Atherton, but by the rights of the wife in the matri- monial domicil when the husband deserts. There is no question that a husband may establish a new domicil for himself, even if he has deserted his wife. Yet in these days of equality I do not suppose that it would be doubted that the jurisdiction of the court of the matrimonial domicil to grant a divorce for the desertion remained for her, as it would for him in the converse case. See Cheever v. Wilson, 9 Wall. 108. Indeed in Ditson v. Ditson, 4 R. I. 87, which, after a quotation of Judge Cooley's praise of it, is stated and relied upon as one of the pillars for the decision of Atherton v. Atherton, a wife was granted a divorce, without personal service, in the State of a domicil acquired by her after separation, on the sole ground [530] HADDOCK V. HADDOCK that in the opinion of the court its decree would be binding everywhere. If that is the law it disposes of the case of a husband under similar circumstances, that is to say of the present case, a fortiori; for I suppose that the notion that a wife can have a separate domicil from her husband is a modern idea. At least Ditson v. Ditson confirms the assumption that jurisdiction is not dependent on the wife's actually residing in the same State as her husband, which has been established by this court. Atherton v. Atherton, 181 U. S. 155; Maynard v. Hill, 125 U. S. 190; Cheever v. Wilson, 9 Wall. 108. When that assumption is out of the way, I repeat that I cannot see any ground for distinguishing between the extent of jurisdic- tion in the matrimonial domicil and that, admitted to exist to some extent, in a domicil later acquired. I also repeat and emphasize that if the finding of a second court, contrary to the decree, that the husband was the deserter, destroys the juris- diction in the later acquired domicil because the domicil of the wife does not follow his, the same fact ought to destroy the jurisdiction in the matrimonial domicil if in consequence of her husband's conduct the wife has left the State, But Atherton V. Atherton decides that it does not. It is important to bear in mind that the present decision pur- ports to respect and not to overrule Atherton v. Atherton. For that reason, among others, I spend no time in justifying that case. And yet it appears to me that the whole argument which prevails with the majority of the court is simply an argument that Atherton v. Atherton is wrong. I have tried in vain to discover anything tending to show a distinction between that case and this. It is true that in Atherton v. Atherton, Mr. Jus- tice Gray confined the decision to the case before the court. Evidently, I should say, from internal evidence, in deference to scruples which he did not share. But a court by announcing that its decision is confined to the facts before it does not de- cide in advance that logic will not drive it further when new facts arise. New facts have arisen. I state what logic seems [531] THE LAW OF MARRIAGE AND DIVORCE. to me to require if that case is to stand, and I think it reason- able to ask for an articulate indication of how it is to be dis- tinguished. I have heard it suggested that the difference is one of degree. I am the last man in the world to quarrel with a distinction simply because it is one of degree. Most distinctions, in my opinion, are of that sort, and are none the worse for it. But the line which is drawn must be justified by the fact that it is a little nearer than the nearest opposing case to one pole of an admitted antithesis. When a crime is made burglary by the fact that it was committed thirty seconds after one hour after sunset, ascertained according to mean time in the place of the act, to take an example from Massachusetts (R. L. c. 219, § 10), the act is a little nearer to midnight than if it had been committed one minute earlier, and no one denies that there is a difference between night and day. The fixing of a point when day ends is made inevitable by the admission of that difference. But I can find no basis for giving a greater jurisdiction to the courts of the husband's domicil when the married pair happens to have resided there for a month, even if with intent to make it a permanent abode, than if they had not lived there at all. I may add, as a consideration distinct from those which I have urged, that I am unable to reconcile with the requirements of the Constitution, Article 4, section 1, the notion of a judg- ment being valid and binding in the State where it is rendered, and yet depending for recognition to the same extent in other States of the Union upon the comity of those States. No doubt some color for such a notion may be found in State decisions. State courts do not always have the Constitution of the United States vividly present to their minds. I am responsible for language treating what seems to me the fallacy as open, in Blackinton v. Blackinton, 141 Massachusetts, 432, 436. But there is no exception in the words of the Constitution. "If the judgment is conclusive in the State where it was pronounced it is equally conclusive everywhere." Christmas v. Russell, 5 [ 532 ] HADDOCK V. HADDOCK Wall. 290, 302; Marshall, C. J., in Hampton v. McConnel, 3 Wheat. 234; Mills v. Duryee, 7 Cranch, 481, 485; Story, Const. § 1313. See also Hancock National Bank v. Farnum, 176 U. S. 640, 644, 645. I find no qualification of the rule in Wisconsin V. Pelican Ins. Co., 127 U. S. 265. That merely decided, \vith regard to a case not within the words of the Constitution, that a State judgment could not be sued upon when the facts which it established were not a cause of action outside the State. It did not decide or even remotely suggest that the judgment would not be conclusive as to the facts if in any way those facts came in question. It is decided as well as admitted that a decree like that rendered in Connecticut in favor of a deserting husband is binding in the State where it is rendered. May- nard v. Hill, 125 U. S. 190. I think it enough to read that case in order to be convinced that at that time the court had no thought of the divorce being confined in its effects to the Terri- tory where it was granted, and enough to read Atherton v. Atherton to see that its whole drift and tendency now are re- versed and its necessary consequences denied. Note : — The question in this case was whether the provisions of the Constitution of the United States requiring full faith and credit to be "given in each State to the judicial proceedings of every other State" applies to cases of divorce where the libellant only is within the jurisdiction of the court granting the decree, and service on the libellee. resident in another State, is by publication only. The court has heretofore decided that it does so apply when the parties have at any time during marriage lived together in the State. It now decides that it does not apply where there has been no such marital domicil. It does not deny that every State may deal with the question of the status as to marriage of its own citizens, but it does say that one State cannot unmarry the citizen of another State. That is to say, if A and B are married, Connecticut may unmarry A, resident therein, but B, residing in New York, will remain married, although having no spouse, if New York, B's residence, refuses full faith and credit to the divorce by the Connecticut court. It is not denied that the marriage status is a thing subject to the juris- diction where it subsists, but it is said that it cannot subsist in two differ- ent States; and that to permit the action of one State to destroy it in an- other is to deprive the latter of jurisdiction over the status of its own citizens. [ 533 ] THE LAW OF MARRIAGE AND DIVORCE. By this roundabout reasoning the court thinks to abate somewhat the evils of the conflict of the diverse laws of the several States. It does not seem that such reasoning is convincing. The effect of the decision, however, will not be to invalidate divorces of the Connecticut- Haddock kind. The great majority of the States have in some fashion recognized the validity of such divorces, as pointed out by the dissenting opinion of Judge Brown. Indeed, the prevailing opinion states that the cases in the State courts "overwhelmingly preponderate in holding that where the plaintiff has acquired a bona fide domicil in a particular State he may lawfully appeal to the courts of that State for a dissolution of the marriage tie, and may call in the non-resident defendant by publication." The contention of the majority of the court is that the clause of the Con- stitution has not been the ground of sustaining such divorces, but the doctrine of comity between the States. The several States are not likely to cease their recognition of divorces obtained in other States because of this decision. They could not well do so in the face of statute provisions in almost every State for summoning non-resident defendants by pub- lication. No fear need be entertained as to an attack upon the validity of divorces like the Connecticut-Haddock one in any States except New York, Penn- sylvania and North and South Carolina, and the state of things in these States remains as it has been. They have heretofore refused to recognize divorces of the Haddock kind. The true criterion should be found in the statement that "If the judgment is conclusive in th6 State where it was pronounced, it is equally conclusive elsewhere," quoted by Judge Holmes from Christmas v. Russell, 5 Wall. 290; 18 L. ed. 475. The situation may perhaps best be stated, since the decision m the Had- dock case, in the language of Adams v. Adams, 154 Massachusetts, 296, where the judge says, and the language is pat from its own lack of lucidity: "But if the judgment is thus binding to all intents and purposes in Cali- fornia, it would be binding elsewhere, which, as has been shown, is not the law." [534] CASES CITED A. PAGES Abington v. North Bridgewater, 100. 113 A. C. V. B. C, . . . o . . . . . 88 Adams V. Adams, 8,104,130,154,168,172,190 V. Byerly, . . . . , ,,.,.... 2, 3 V. Hurst, , . = , „ . 45 Aitchison v. Aitchison, , „ „ . . 44 Albee v. Albee, ° 132 Albert v. Albert, . . 143 AUen V. Allen, 44, 96, 160, 166 V. Maclellan, <,.... 9 Almond v. Almond, « • 1^8 Ames V. Chew, » . . 147 Amos V. Amos, 118 Anderson v. Anderson, 51, 53, 101, 129, 164, 166 Andrews V. Andrews, 103,104,162,169,173,190 Angelo V. Angelo, 1^> 1^'^ Anonymous, 35,50,95,122,132,169 Anshutz V. Anshutz, 77, 154 Appeal of Zerfass, 105 Armant v. Her Husband, 59 Armstrong v. Armstrong, 137 V. Carson, 189 Arrington v. Arrington, 166 Ashford v. Ins. Co., 32 Ashmead v. Ashmead, 146 Ashton V. Grucker, 98, 143 Atherton v. Atherton, 103 Atkins V. Atkins, 164 B. Babbitt v. Babbitt, 78,154 Babcock v. Smith, 187 Bailey v. Bailey, 58, 60, 157 [535] CASES CITED. PAGES Bailey v. Fiske, 18 Baird v. People, o . . 2 Baker V. Baker, 81,93,94 V. People, . . o .... 55 Baldwin v. Baldwin, 152, 153 Banister v. Banister, 120 Banks v. Galbraith, 7 Bankston v. Bankston, 15G Barber V. Barber, « 166,189,191,192 V. Root, . „ . . . ....... 25, 38, 100, 101, 146, 186 Bardin v. Bardin, 151 Barnes v. Barnes, .„„„„» <,o ......... . 63, 64 Barney v. Cuness, ..<,.. o . 35 Barrett v. Failing, . . 186 Bartlett v. Bartlett, , 145 Bascom v. Bascom, „ . . 157 Bascomb v. Bascomb, 86 Bassett v. Bassett, .,...„....<, 25, 82 Bast V. Bast, 44, 140 Batchelder v. Batchelder, . 69 Battey v. Battey, 158, 159 Baugh V. Baugh, 117, 172 Beach v. Beach, 104, 105 Beadleston v. Beadleston, 159 Beamish v. Beamish, 10 Bean v. Bean, 71, 72 Beard v. Beard, 103, 155 Becker v. Becker, 104, 157 Beggs V. State, 21, 54 BeU V. BeU, 104, 105, 134 Bennett v. Bennett, 74, 75 V. Brooks, 4 V. Smith, 21 Benton v. Benton, 24, 197 Berckmans v. Berckmans, 45, 47 Berryman v. Berryman, 65, 70 Besch V. Besch, 75 Besore V. Besore, 117 Bienvenu v. Her Husband, 97 Bigelow, Estoppel, 189 Billings V. Billings, 48 Birdzell v. BirdzeU, 116, 117 Bishop V. Bishop, 50, 77 Bittinger v. Bittinger, 124 Black V. Black, 47 [536] CASES CITED. PAGES Blake v. Blake, -16 Blandy v. Blandy, 75 Blaney v. Blaney, 70, 71 Blank v. Nohl, 136 Blankenship v. Blankenship, 161 Blodgett V. Brinsmaid, 19 Bloodgood V. Bloodgood, 153 Bloom V. Richards, 4 Blumenthal v. Tannenholz, 35 Bodwell V. Bodwell, 80 Boeck V. Boeck, 1'13 Boggess V. Boggess, 154 Bomsta V. Johnson, 104,171,172,185 Bonker v. People, 21 Bosholt V. Mehus, 188 Bowman v. Bowman, 99) 153 V. Worthington, 150, 152 154 Boyd's Appeal, 185, 190 Bradford v. Abend 92, 117 Bradley v. Bradley, 134 Bratton v. Bratton, 123 Brewer v. State, 32 Briggs V. Briggs, 96 V. Morgan, 86 Brinkley V. Atty. Gen., 14 V. Brinkley, 34, 153 Brisbane v. Dobson, 166, 191 Broadstreet v. Broadstreet, 42, 92 Brooks V. Brooks, 45 Brotherton v. Brotherton, 160 Brow V. Brightman, 170 Brown V. Brown, 8,69,71,86,120,122,185 V. Westbrook, 153 Bryan v. Batcheller, 186 V. Bryan, 144 Budington v. Mun'son, 30 Bullock V. Bullock, 30, 192 Burdick v. Burdick, 122 Burge V. Burge, 169 Burgess v. Burgess, 134, 158 Burke v. Burke, 44 Burlin v. Shannon, 103, 191 Bums V. Burns, 124, 125, 159 Bursler v. Bursler, 158, 164 Burtis V. Burtis, 113, 141 [537] CASES CITED. PAGES Burton v. Burton, 62 Burrows V. Purple, 152,156,160,163 Busenbark v. Busenbark, 116 Bush V. Bush, 167 Butler V. Butler, 128 V. Washington, 125 Bylandt v. Bylandt, 162 c. Calame v. Calame, 160 Calef V. Calef, 132 Camden v. Belgrade, 29 Cameron v. Cameron, 131 Campbell v. Campbell, 156, 157, 161, 191 Canfield V. Canfield 61 Carey v. Carey, 161, 162 Cargile v. Wood, 27 Carlbertson v. Board of Commissioners, 100 Carley v. Carley, 171 Carlton v. Carlton, 162, 166 Carotti v. State, 42 Carpenter V. Carpenter, 59, 63, 64, 120 Carris v. Carris, 24,81, 82 Carruthers v. Carruthers, 60 Carter V. Carter, 104,133, 161 Cartwright v. Bate, 79 Cass V. Cass, 98 Casteel v. Casteel, 161 Caswell V. Caswell, 8, 68 Chaires v. Chaires, 151 Chandler v. Chandler, 155 Chapman v. Chapman, 89, 154 V. Gray, 40 Chase V. Chase, 104, 151, 153, 160 Cheatham v. Cheatham, 60 Cheever v. Wilson, 189 Chesnutt v. Chesnutt 61 Choate v. Choate, 42, 52 Church V. Church, 52, 53 Clancy v. Clancy, 1 Clapp V. Clapp, 53, 140 Clare v. Clare, 47, 50 Clark V. Clark 38, 113, 139, 148, 192 V. Field, 27 V. Pendleton, 3 [538] CASES CITED. PAGES Clark V. Slaughter, . 146 Clarke v. Clarke, 24, 81 Clay V. Clay, 43, 118 Clayton v. Clayton, 29 Clinton v. Clinton, 60 Clutton V. Clutton, 128 Coffin V. Dunham, 1^4 Cogswell V. Tibbeth, 164 Cohnv.Cohn, 142 Colbum V. Colburn, 101 Cole V. Cole, 7, 58, 60, 98, 165 V. Holliday, 2 Coles V. Coles, 152, 159 Collins V. Collins, 25, 82, 151 V. Ryan, "^ V. Voorhees, ^" Colvin V. Reed, 189 Com. V. Bakeman, 5" V. Bowers, 44 V. Caponi, 29, 30 V. Dill 29 V. Giles, 129, 130 V. Graham, 9, 14 V. Gray, 44 V. Hayden, 31, 32, 57 V. Hurley, ^1 V. Hussey, ^^ V. Ingersoll, 4o V. Johnson, ^^ V. KendaU, 104 V. Kenney, 12, 30, 32, 57 V. Lane, 14, -5, 19- V. Littlejohn, 30, 31 V. Merriam, 44 V. Mimson, 11, 16 V. Nichols, 45 V. Norcross, ^1 V. Roosnell, ^1 V. Snelling, 130 V. Squires, ^1 V. Steiger, 191 Comstock V. Adams, 136 V. Com., -51 Conant v. Conant, 141 Cone V. Cone, 68 [539] CASES CITED. PAGES Conger v. Conger, 50, 75 Conrad v. Williams, , 2 Converse v. Converse, 148 Cook V.Cook, 46,59,60,61,99,114,169,189 Cooley V. State, 54 Cooper V. Cooper, 76 Cornish v. Cornish, 76 Cory V. Cory, 154 Countz V. Countz, 152 Coursey v. Coursey, 59 Cowan v. Cowan, 35, 117, 151 Cowles V. Cowles, 58, 62, 80 Cowls V. Cowls, 168 Cox V. Cox, 169 Crane v. Crane, 47 V. State, 57 Creamer v. Creamer, 118, 153 Crehore v. Crehore, 83 Crews V. Mooney, 160 Creyts v. Creyts, 137 Crow V. Crow, 59, 76 Crump V. Morgan, 117 Cumming v. dimming, 139, 140 Cummins v. Cummins, 139 Cunningham v. Reardon, 79 Curry v. Curry, 8, 91 D. Daiger v. Daiger, 152 Daily v. Daily, 44, 46 Dale V. State, 32, 57 Damon v, Damon, 116 Danforth v. Danforth, 76, 78, 172 Daniels v. Benedict, 172 v. Daniels, 121 v. Lindley, 166 Daspit V. Ehringer, 185 D'Auvilliers V. De Livaudais, 102, 117 David v. David, 60 Davis V. Com., 54 V. Davis, 63, 67, 94, 154 Davol v. Howland, 187 Dawson v. Dawson, 69 Day V. Day, 168 Dean v. Richmond 147 [ 540 ] CASES CITED. PAGES Dean v. Skiff, , . , .. „ , 3 De Graw v. De Graw, 154 DeLesdernier v. DeLesdernier, 70 Delliber v. Delliber, 137 De Meli v. De Meli, 100, 132 Demelman v. Burton, 131 Dennis v. Dennis, 49, 72 Denny v. Denny, 35, 129 Densmore v. Densmore, , . 60 Derby v. Derby, ...,„,... 139 V. Phelps, 3 Desmare v. United States, ............... 100 Devall V. Devall, 158 Devanbagh v. Devanbagh, 86, 87, 88 Dickerson v. BrowTi, 26, 28 Dickson v. Dickson, 9, 148 Dillon V. DUlon, 61 Dismukes v. Dismukes, 131 Ditson V. Ditson, 6,100,101,114, 123 Doan V. Doan, 97 Donald v. Donald, 60 Donnelly v. West, 114 Doughty V. Doughty, 104, 114, 124, 189, 191 Douglass V. Douglass, 138 Dow V. Blake, 191 Do^\'ns v. Flanders, 163 Draper v. Draper, 134, 162 Dred Scott v. Sandford, 18 Drennan v. Douglas, 2 Duke V. Fulmer, 6 Dunham V. Dunham, 104,114,192 Duntze v. Levett, 6 Durand v. Her Husband, 65, 143 Dutton V. Dutton, 40 Dyer v. Dyer, 96 E. Eames v. Sweetser, 79 Earle v. Earle, 171 Edgerly v. Edgerly, , 145 Edson V. Edson, 9, 171, 172 Egbert v. Greenwait, 52 Eggarth v. Eggarth, 138 Eggerth v. Eggerth, 118 Eichhoff's Case, 34 [541] CASES CITED. PAGES Eidenmuller v. Eidenmuller, , .... 143, 156 Ellison V. Martin, 1^^ V. Mayor, 38, 39 V. Mobile, 147 English V. English, 62, 169 Ennis v. Ennis, 9' Espy V. Jones, 2 Evans v. Evans, 47, 77, 136 F. Faller v. Faller, 94 Farnham v. Farnham, 138, 139 Farnsworth v. Farnsworth, 94 Faulk v. Faulk, 117 Faustre v. Com., 57 Felix V. State, 18 Fellows V. Fellows, 94 Fera v. Fera, 76, 145 Ferguson v. Ferguson, 46 Ferris v. Ferris, ' 86, 87 Fidelity Ins. Co. 's Appeal, 185 Finn v. Finn, 30, 144, 158 Firth V. Firth, o 105 Fischer v. Fischer 131 Fisher v. Bernard, ..... - 21 V. Fischer, ............ ^ 164 v. Fisher, . 161 Fitts V. Fitts, 96 Fizette v. Fitzette, ''............ = .•• 60 Fleming v. Fleming, ................ 63, 95 V. People, ..............•«••• 31 Flower v. Flower, 104, 189 FoUweiler v. Lutz, 113 Ford V. Ford, 58, 59, 60, 129 Foss V. Foss, 82, 102, 150, 168 Foster v. Foster, 163 Fox V. Davis, 147 Foy v. Foy, 144 Francis v. Francis, 150, 151 Franklin v. Franklin, 77 Frith V. Frith, 153 Fritts V. Fritts, 97 Fritz V. Fritz, 59 Frost V. Frost, 78 V. Vought, 2 [542] CASES CITED. PAGES Fuller V. FuUer, 9, 13, 26, 192 Fulmer v. Fulmer, 86 G. Gaillard v. GaiUard, 75 Gaines v. Green Pond Iron Mining Co., 31 Gall V. Gall, 30 Galland v. Galland, 154, 158 Galusha v. Galusha, 161 Gardenhire v. Gardenhire, 161 Gardner .v Gardner, 64, 129 130 Gargner v. Gargner, 155 Garland v. Garland, 154 Garner v. Garner, 113, 123 Garnett v. Garnett, 35, 155 Gechter v. Gechter, 162 Georgia v. Hobbs, 18 Germany. German, 131, 143 Germond v. Germond, 52, 156 Gholston V. Gholston, 96 Gibson v. Gibson, 29, 116 Gilley v. Gilley, 170 Gilpin V. Gilpin, 128, 168 Glass V. Glass, 8, 56 Glasscock v. Glasscock, 128 Glaude v. Peat, 120 Gleason v. Gleason, 131 Glenn v. Glenn, 152, 158 Glover v. Glover, 158 Glover's _Appeal 156, IGl Goldbeck v. Goldbeck, 77 Golding v. Golding, 70 Goodman v. Goodman, 96 Good^vin v. Goodwin, 40 V. Thompson 21 Gordon v. Gordon, 56 Gorman v. State, 55 Goshen v. Richmond, 91 Goss V. Goss, 154, 156, 161 Gould v. Gould, 53, 121 Gourlay v. Gourlay, 71 Governor v. Rector, 21 Graft v. Graft 63 Graham v. Martin, 2 Grant v. Grant, 62 [543] CASES CITED. PAGES Graves v. Graves, 151, 154, 155, 157, 158, 164 Gray v. Gray, 76, 158 Green v. Green, 167 V. Spencer, 2 Greenawalt v. McEnelly, 132 Greene v. Greene, 155 Greenleaf v. Greenleaf, 164 Greenwood v. Curtis, 14 Griffeth v. Griffeth, 86 Griffin v. Griffin, 151, 157 Gulick v. Gulick 2 H. Haddock v. Haddock, appendix 459 Hair v. Hair, 78 Hairston v. Hairston, 113 Halbrook v. The State, 32 Hale V. Hale, 139, 141 Haley v. Haley, 169 Hall V. Hall, 140 V. State, 42 HaUs V. Cartwright, 70 Hamilton v. Hamilton, 135, 136 Hammond v. Hammond, 94, 144 Hampton v. Hampton, 131, 139 Handy v. Handy, 68, 139, 140, 141 Hansel v. Hansel, 142 Hanson v. Hanson, 120 Harding v. Alden, 102, 120, 191 v. Harding, . 76 Hare v. Hare, 121 Harman v. Harman, 30, 32 Harper v. Harper, 143 Harrington v. Harrington, 129, 130, 131, 133, 154 Harris, Ex parte, 19 V. Harris, 138, 189 Harrison v. Harrison, 115, 128, 137, 166 V. State, 12 Hart v. Hart, 63 Harteau v. Harteau, 100, 102, 132 Harvey v. Harvey, 61 Haskell v. Haskell, 168 Hassett v. Hassett, 134 Hawes V. Hawes, 158, 159 V. State, 31 [544] CASES CITED. PAGES Hawkins v. Hawkins, 58 Heatherwick v. Heatherwick, 99 Hecht V. Hecht, 152 Hedden v. Hedden, 48 Heintzman v. Heintzman, 142 Helden v. Helden, 157 Heller v. Heller, 118 Helms V. Franciscus, 40 Hemmenway v. Towner, 52, 53 Henderson v. Henderson, 59, 154 Herberger v. Herberger, 44 Hernandez, Succession of, 9 Herrick v. Herrick, 47 Hewitt V. Hewitt, 59 Hick V. Hick, 102 Hickman v. Hickman, 91 Hilbish V. Hattle, 192 Hill V.Hill, 31,143, 189 Hinds V. Hinds, 113 Hitchins v. Hitchins, 59 Hoffman v. Hoffman, 82, 101, 116, 122, 128, 139, 169 Hoitt V. Moulton, 3 Holbrook v. Holbrook, 164, 173 Holmes v. Holmes, 75, 161, 162, 164, 172, 191 Holston V. Holston, 42, 75 Holthoefer v. Holthoefer, 46, 61 Holyoke v. Holyoke, 59, 60 Homan v. Earle, 2 Homburger v. Homburger, 46 Homes v. Carrier, 97 Homston v. Homston, 123 Hood V. Hood 113, 145, 186 V. State, 41, 185 Home V. Home 101,113, 121 Horning v. Horning, 169 House V. House 10^ Hughes V. Hughes, 65, 138 Huling V. Huling, 140 Hull V. Hull, 6 V State '^4' ^^ Hunt V.Hunt,' ['.'.'.. 78,100,101,191 V. Thompson 25, 38, 146 *7Q Hunter v. Boucher, '^ Hurlburt v. Hurlburt 94 Hurtzig V. Hurtzig, ^^ 35 [545] CASES CITED. PAGES Hutchins v. Kimmell 31, 32 Hyde v. Hyde, 14 I. Ingersoll v. IngersoU, 77 In re Cook, 8 Inskeep v. Inskeep, 160 Irwin V. Irwin, 169 Isaacs V. Isaacs, 162 J. Jackson v. Jackson, 167 James v. James, 47, 79 Jamieson v. Jamieson, 125 Jamison v. Jamison, 158 Jenkins v. Jenkins, ... 159 Jenne v. Jenne, 125 Jennings v. Jennings, 75 Jeter v. Jeter, 44 J. G. V. H. G., 85, 86, 87 Jones V. Brownlee, 127 V.Jones, 31,47,58,61,64,101,115,118,140,144,173 Johnson v. Coleman, 185 V. Johnson, 46, 70, 94, 97, 99, 140, 143 V. Terry, 169 Joyce V. McAvoy, 40 E. Kashaw V. Kashaw, 116 Keen v. Keen, 19 Keerl v. Keerl, . 150, 154 KeUey v. Kelley, 34, 99 V. RUey, 2 Kelly V. Kelly, 59, 122 V. Riley, 3 V. Scott, 17 Kempf V. Kempf, 86 Kendall v. Kendall, 153 Kennedy v. Kennedy, 64, 78 Kenney v. Com., 7 King V. King, 143 Kinney v. Com., 18 Kinnier v. Kinnier, 189 Kinsey v. Kinsey, 76, 158 Klemme v. Klemme, 159 [546] CASES CITED. PAGES Kline v. Kline, 60 Klutts V. Klutts, 67 Knapp V. Knapp, 164 Kneale v. Kneale, 134 Knight V. Knight, 61, 143 Koonce v. Wallace, 21 Kremelberg v. Kremelberg, 169 Krone v. Cooper, 101 Kurtz V. Kurtz, 164 L. Labotiere v. Labotiere, 122 Lakin v. Lakin, 186 Lambert v. Lambert, 168 Lampkin v. Travelers' Ins. Co., 30 Latham v. Latham, 46 Lauber v. Mart, 59 Lawrence v. Cooke, 3 V. Lawrence, 144 Lawton v. Taylor, 161 Leach v. Leach, 61, 96 Leavitt V. Leavitt, ' 24,81,122,144 Le Barron v. Le Barron, 34, 88 Le Brun v. Le Brun, 35, 132 Leith V. Leith, 51,100,104,155,175 Leonard v. Leonard, 67 Leseuer v. Leseuer, 128 Letters v. Cady, 1 Levering v. Levering, 76 Lewis V. Lewis, 47, 90, 145 Linden v. Linden, 131 Linton v. Bank, 148 Little v. Little 129 Logan V. Logan, 159, 167 Loker v. Gerald, 78, 114 Long V. Long, 42, 82 Lorenz v. Lorenz, 36, 87 Loring v. Thorndike, 16 Love V. Love, 191 Lowry v. Coster, 29 Lutz V. Lutz, 60, 138 Lyle V. Lyle, 167 Lynch v. Lynch 40, 76 Lynde v. Lynde, 166 Lyster v. Lyster, 140 [547] CASES CITED. PAGES H. Mace V. Mace, 122 Madden v. Fielding, 155 Maddox v. Patterson, 170 Magahay v. Magahay, 70, 72 Magowan v. Magowan, 105 Magrath v. Magrath, 80 Mahoney v. Mahoney, 161 Maier v. Circuit Judge, 35 Mangue v. Mangue, 32, 144, 147 Marks v. Marks 97 Martin v. Martin, 96 Mathewson v. Mathewson, 51 Maxwell v. Maxwell, 159 Mayhew v. Mayhew, 62 Maynard v. Hill, 6 Mazerat v. Godefroy, 185 McBee v. McBee, 71 McBride v. McBride, 159, 167 McCabe v. Berge, 6, 9 McCafferty v. McCafferty, 51 McCahill V. McCahill, 143 McCarthy v. Hinman, 170 V. McCarthy, 159 McClung V. McClung, 60 McClurg V. McClurg, 75 McClurg V. Terry, 1, 27, 35 McCoy V. McCoy, 75 McCraney v. McCraney, 146 McCulloch V. McCulloch, 131 McCurdy v. Dillon, 127 McCurley v. McCurley 153 McDonough v. McDonough, 159 McGee v. McGee, 154, 159, 162 McGiffert v. McGiffert, 191 McGill V. McGill, 69 McGowen v. McGowen, 77 Mclntire v. Mclntire, 154 Mclntyre v. Mclntyre, 172 185 McKay v. McKay, 70 McMullen v. McMuUen, 158 McPherson v. Com., 18 McQuaid v. McQuaid, 77 McShane v. McShane, 104 Medina v. Medina, 104, 172 [548] CASES CITED. PAGES Medway v. Needham, 13 Meehan v. Meehan, 38 Megginson's Estate, 33 Meldowney v. Meldowney, 75 Melvin v. Melvin, 62 Menzie v. Anderson, 161 Mercer v. Mercer 61 Merrill v. Merrill, : 87, 88 Messenger v. Messenger, 143, 168 Meyers v. Pope, 15 Mickle V. State, 28 Middleborough v. Rochester, 7 Milford V. Worcester 10, 15 Miller v. Miller, 42, 43, 154, 170 Mims V. Mims, 42 Miner v. Miner, 168, 169 V. People, 41 MitcheU v. Mitchell, 29, 43 V. United States, 100, 104, 113 Moe V. Moe, 164 Mohler V. Shank, 116 Moon V. Baum, 154 Moore v. Moore, 30, 32 Moores v. Moores, 144 Moors V. Moors, 8, 142 Moorsom v. Moorsom 48 Morehouse v. Morehouse, 60, 61 Morrell v. Morrell, 88 Morrill v. Palmer, 8 Morris V. Morris, 42, 58, 79, 81, 93, 122, 185 Morrison v. Morrison, 48, 145, 160 Mosser v. Mosser, 43, 44 Mott V. Mott, 128 Mount V. Mount, 46 Moyler v. Moyler, 61, 63 Muckenburg v. Holler, 136 Muller V. Hilton, 102 Munson v. Hastings, 1 Muse V. Muse, 157 Musselman v. Musselman, 121 Mussing V. Mussing, 150 Myers v. Myers, "^^ V. Pope, 15 Myrick v. Myrick, 69 [ 549] CASES CITED. PAGES N. Names v. Names, ^ Nathans v. Nathans, ^° Newell V. Newell, ^ Nicely v. Nicely, ^^'^ Nichols V. Nichols, 41,42,143 o V. Weaver, ^ Nicholson v. Nicholson, ^'^'■^ Nickerson v. Nickerson, 1'2 Nixon V. Second Judicial Dist. Ct., 164 Nogees v. Nogees, ^^ Noice V. Brown, Norris v. Norris, 1"^ North V. North, 46 Northfield v. Plymouth, 31 Norton v. Norton, . . . . " 85 Noyes v. Hubbard, 160 0. Odd Fellows Beneficial Assoc, v. Carpenter, 30 O'Dea V. O'Dea, 191 Odom V. Odom, 58 Olin V. Hungerford, 161 Oliver v. Oliver, 68, 169 Orchardson v. Cofield, 90 Orr V. Orr, ^^ Osgood V. Osgood, 1^9 V. State, 51 Overhiser v. Overhiser, 187, 188 Owen V. Owen, 143 P. Pace V. Alabama, 18 Paddock v. Robinson, 2 Page V. Page, 166 Pain V. Pain, 162, 166 Palmer v. Palmer, 59, 63, 64, 76 Parish v. Parish, 190 Park v. Barron, 200 Parsons v. Parsons, 154 Parton v. Hervey, 21, 209, 275 Pastoret v. Pastoret, 141 Patterson v. Gaines, 31 Pauly V. Pauly, 150 Pawling V. Willson, 101 [550] CASES CITED. PAGE3 Payne v. Payne, 47, 48 Peabody v. Peabody, 58 Pease v. Pease, 128 Peavey V. Peavey, 50, 59, 61, 159 Peckford v. Peckford, 157 Peet V. Peet, 30 People V. Baker, 55, 103, 114, 189 V. Beevers, 54 V. Bennett, 21 V. Chapman, 42 V. Crawford, 57 V. Crowley, 51 V. Darnell, 101 V. Dawell 183 V. Hovey, 55, 148 V. Imes, 31, 32 V. Perriman, 57 Perkins, Ex parte, 162 V. Perkins 166 Petrie v. People, 153 Petterson v. Petterson, 104 Phelan v. Phelan, 75, 104 Phelps V. Baker, 191 Philadelphia v. Wetherby, 191 Phillips V. Allen, 52 V. Madrid, 192 V. Meyers, 40 V. Phillips, 98 Pidge V. Pidge, 75 Pierce v. Burnham, 147 V. Pierce, 49, 140, 142 Pilgrim v. Pilgrim, 77 Pinkard v. Pinkard, 96 Pinkston v. McLemore, 40 Pittman v. Pittman, 133 Place V. Washburn, 163 Poler V. Poler, 95 Pollock V. Pollock, 43, 45, 50, 76 V. Sullivan, 3 Poole V. Pratt, 1 Porritt V. Porritt, 67, 72 Porter v. Porter, 159 Potts V. Potts, 151, 173 Powelson v. Powelson, 96 Powell V. Powell, 44, 86, 133, 142 [551] CASES CITED. PAGES Power V. Power, 77 Powers V. Powers, 65, 144 Pratt V. Pratt, 142 Prescott V. Guyler, 2 V. Prescott, 155 Prine v. Prine, 28 Prosser v. Prosser, 154 V. Warner, 103, 114 Putnam v. Johnson, 101 V. Putnam, 13, 26 Quarles v. Quarles, 122 Quincy v. Quincy, 137 B. R. V. R., 172 Ralston's Appeal, 80 Randall v. Randall, 53, 94, 122, 123 Rawdon v. Rawdon, 36, 90 Rawlins v. Rawlins, 172 Ray V. Smith, 3 Reed V. Reed, 59, 75, 104 Reeves v. Reeves, 169 Reid V. Reid 62, 144 Reish V. Thompson, 2 Ressor V. Ressor, 151, 157 Rex V. Burton, 82 Reynolds v. Reynolds, 81, 186 V. United States, 51 Rice v. Rice, 60, 167, 168 Richards v. Richards, 97, 143 Richardson v. Richardson, 117, 121 V. State, 42 v. Wilson, 37 Richmond v. Richmond, 134 Ricketts v. Ricketts, 153, 162 Ridgely v. Ridgely, 34, 115 Riev. Rie, 61, 132 Ristine v. Ristine, 140 Ritter v. Ritter, 81 Rivers v. Rivers, 68 Robbins v. Robbins, 133, 164 Robertson v. Robertson, 172 Robinson v. Robinson, 97, 160 [552] CASES CITED. PAGES Rockwell V. Morgan ^^ Roe V. Roe _ Rogers V. Rogers, 48,75,137,169 Rohrback v. Rohrback, ^^ Rooney v. Rooney, _ Rose V. Rose, Roseberry v. Roseberry, |^^ Rosholt V. Mehus ^^' Ross V. Ross J^ Rouse V. Rouse ~ Ruckman v. Ruckman, ^^ Rudd V. Rudd, ^^ Runkle v. Runkle, ^^ Russell V. Cowles, "" V. Russell, Ryder v. Ryder 24, 47 Ryeraft v. Ryeraft, s. Sanders v. Sanders, on Sargent v. Sargent ^ Saterlee v. Saterlee, 171 Scanlan v. Scanlan, Scarborough v. Scarborough - Schakelford v. Hamilton, Scheming v. Scheffling, ^ Schichtl V. Schichtl, ^J Schoessow v. Schoessow, Schrow V. Schrow, Schwartz v. Schwartz, _ • • ^ o 4.4. C!„^4f 66, 97, llo Scott V. Scott, CI V. Shufeldt, °J Scroggins V. Scroggins, ^ f-h/'^tl, ■.::■. '.O., 104, 138 Sew-all V. Sew-all, ' Shafher v. State Shafto V. Shafto, J^^ Shannon v. Shannon, Sharon v. Sharon, Sharp V-. Sharp, „' , ., IZ Qha^v . • 62, 63, 103, 113, 151 Shaw- V. bhaw, ' ' Shay V. Shay, ^^2 Sheate v. Sheafe, Shearin v. Shearin, Shelton V. Pendleton, r V^o n" [ 5o3 J CASES CITED. PAGES Sherwood's Appeal, 120 Shrader v. Shrader, 104 Shuck V. Shuck, 70 Shute V. Sargent, 114 Simonds v. Simonds, 51 Simons v. Simons 47 Simpkins v. Simpkins, 172 Simpson v. Simpson, 77, 158 Sims V. Sims, 8 Sinclair v. Sinclair, 35 Singer v. Singer, 173, 190 Sisemore v. Sisemore, 77 Skolfield V. Skolfield, 143 Slade V. Slade, 165 Sloan V. Cox, 165 Small V. Small, 155, 169 Smedley v. Smedley, 60 Smith V. Brown, 136 V. Smith, 4, 24, 47, 59, 123, 125, 133, 140, 153, 187 Snyder v. Snyder, 114 Soper V. Soper, 65 Southwick V. Southwick, 62, 76, 80 Sower's Appeal, 76 Spafford v. Spafford, 122 Sparhawk v. Sparhawk, 147, 152, 164 Squire v. State, 31 Standridge V. Standridge, 114 Staples V. Staples, 163 Starr v. Pease, 146 State V. Abbey, 31, 57 V. Armington, 174 V Baker, 101 V. Brinneman, 118 V.Clark, 57 V. Cone, 21, 22 V. Gonce, 29 V. Goodrich, 32 V. Henderson, 50 V. Kennedy, 13, 18 V. Libby, 29, 57 V. Norman, 55 V. Ross, 13 V. Sanders, 50 V. Shields 51 V. Stiles, ; 44 [554] CASES CITED. PAGES State V. Watson ^^^ V. Watters, ^^ V. Weatherby, 9, 148 Steel V. Steel, 42, 137 Steele v. Steele 62, 158 Steffens v. Steffens, ^'^ Stephens v. Stephens, ^1* Stevens v. Stevens, ^^^ Stewardson v. Stewardson, 1^7 Stewart v. Stewart, 62, 76, 80, 121 V. Vandervort, ^* Stillman v. Stillman, 164 Stone v. Stone, 125 Story v. Story, 160 Stoutenburg v. Lybrand, 136 Stoy V. Stoy. 161 Strait V. Strait, 104 Stratford v. Stratford, 118 Stratton v. Stratton, 161, 169 Strauss's Estate, 30 Streitwold v. Streitwold, 104 Streitwolf v. Streitwolf 105 St. George v. Biddeford, 90 St. Sure v. Lindsfelt, 191 Sullivan v. Kelley, Suter V. Suter, 52 104 Sutton V. Warren, 13, 14, 20 Swearingen v. Swearingen, 1^1 Sylvis V. Sylvis, 59, 60, 133 T. Taylor v. Robinson, 30 V. Taylor, 138. 139 Tayman v. Tayman, 152, 153, 159 Teft v. Teft, 37 Thayer v. Thayer, 44, 117 Thelen v. Thelen 104 Thomas v. Thomas, 50, 68, 137, i61, 164 Thompson v. State, 55, 191 v. Thompson, 11, 98, 153, 158 Thorns v. King, 101 Thorp V. Thorp 9, 96, 192 Thorpe v. Thorpe, "^5 Throckmorton v. Throckmorton 46 [555] CASES CITED. PAGES Thurston v. Cavenor, 2 V. Thurston, 116, 145 Tiffany v. Tiffany, 92. 117, 142 Tiffin V. Tiffin, 164 Tilton V. Tilton 72 Timerson v. Timerson, 138 Tolerton v. Williard, 161 Tourtelot V. Tourtelot, 52 True V. Ranney, 35 V. True, 172 Tucker v. People, 31, 57 Tumbleson v. Tumbleson, 157 Turner v. Turner, 138, 155 Turney v. Turney, 49 Turpin v. State, 132 Tyler v. Odd Fellows Mut. Relief Assn., 188 Tyrell v. Tyrell, 159 u. Uhlman v. Uhlman, 169 Umlauf V. Umlauf, 160 United States v. Green, 30 V. Snow, 56 V. Valleau v. Valleau, 42, 51 Van Aernam v. Van Aernam, 52 Vance v. Vance, 48 Vanderpool v. Richardson, 2 Van Fossen v. State, 55, 105 Van Voorhis v. Brintnald, 148 V. Brintnall, 2, 192 Veneall v. Veness, 2 Verholf v. Van Houwenlengen, 31 Vetterlein, Petition of, 105 Viertel v. Viertel, 48 Vreeland v. Vreeland, . . . . „ 30, 32 w. W. V. W., 65 Wachholz v. Wachholz, 61, 65 Wade V. Kalbfleish, 6 Wadsworth v. Wadsworth, 128 Wagenseller v. Simmers, 3 Wagner v. Wagner, 145 [556] CASES CITED. PAGES Wagoner v. Wagoner, 50 AVahle v. Wahle, 47, 154 Waldron v. Waldron, 153 Wales V. Wales, 1^3 Walker v. Leighton, 78 Waller v. State, 51 Walls V. State 22 Walsh V. Walsh, 59 Waltermire v. Waltermire, 64 Wanamaker v. Wanamaker, 123, 171 Wand V. Wand, 61, 168 Ward V. Bailey, 35 V. Dulaney, ^^ V. Ward, 64, 121 Warner v. Warner, 79, 93 Warivick v. Cooper, 226, 327 Washburn v. Washburn, 43, 93 Waters v. Waters, 164 Watkins v. DeArmond, 79 V. Watkins, 100, 103, 104 Watson V. Watson, "- Way V. Way, 120 Weatherbee v. Weatherbee, 124 Weaver v. Bachert, 2 Weigel V. Weigel, '5 Weishaupt v. Weishaupt, 152 Welch V. Welch, 123, 167 Wertz V. Wertz, 1^2 Wessels v. Wessels, 61 West Cambridge v. Lexington, 192 Weston V. Weston • • -'6 Whaley v. Whaley, ^^ Wheeler V. AVheeler, 60, 64, 96 Whipp V. Whipp, 129 Whippen v. Whippen, 25 Whipple V. Whipple, 1^4 Whitcomb v. Whitcomb, S, 104, 154, 172 V. Wolcott, • • 3 White V. White, 1^1 Whitenack v. Whitenack, 50 Whitfield v. Whitfield, ^0 Whitsell V. Mills, 25, 146 Whittaker v. Whittaker, 132 o Wightman v. Coates, Wilde V. Wilde, 135. 136 [557] CASES CITED. PAGES WiUard v. Willard, 25, 53, 121 Willcox V. Wayne Circuit Judge, 11« William v. Goss, ''0 Williams v. State, 57 Williams v. Williams, 138, 160, 169 Wilson V. Holt, 13, 26 Winslow V. Winslow, 53, 116, 117, 121 AVinston v. Winston, 1"^ Wisdom V. Wisdom, ^^'*> 1 ' 1 Wolcott V. Patterson, l^"* Wolf V. Wolf, ^"^ Wood V. Wood, 42, 52, 104, 192 Worden V. Worden, l^^' ^^^ Worthy V. Worthy, 1^^' ^^J^ Wortman V. Wortman, ■JO Wottrich V. Freeman, Wray v. Wray, 42, 154 Wright V. Wright, 9^' 1^^' ^^^ Y. 2 Yale V. Curtiss, Young V. Young, 68, 122 Youngs V. Youngs, 62, 65, 69 [5581 INDEX [The Figures refer to Pages.] A Abandonment: continuity of, 75 constructive, .76 definition of, 74 necessity of cessation of cohabitation, 75 intention, 75 refusal to leave native country, 77 Ability: of husband to support wife, 93 Absence: of sexual intercourse as evidence of impotency, 87 presumption of death from, 55 Absolute Divorce: effect of decree of, 37, 146 property rights, 186 statutes as to, 233 et seq. Abuse : of sexual intercourse as cruelty, 62 Abusive Lan^age: as cruelty, 59 use of as ground for divorce 96 Abusive Treatment: form of allegation of 354 Acceptance : of offer of marriage, 1 of service, 124 [ 559 ] INDEX. [The Figures refer to Pages.] Accusation: of crime as constituting cruelty, 64 of unchastity as constituting cruelty, 59, 64 Acquiescence: as barring relief from decree, 173 Action : for breach of promise, 3 Actual Violence: necessity of, to constitute cruelty, . 59 Admissions : as evidence of marriage, 29 Adulterous Disposition: admissibility of evidence of, 44 Adultery : as barring wife of dower, 186 as ground for divorce, 41 commission by force, 50 definition of, 41 effect on alimony, 164 evidence of, 43 false charge of, 96 form of allegation of, 353 mistake of law as defence, 51 naming of particeps criminis, 42 necessity of penetration, ... 50 proof of, 43 record of conviction as evidence, 53 scienter as a defence, ... 51 separation as a defence, 51 specifications of, in libel, . 53 voluntary character of, 42 Affidavit : of notice, form of, • . . 365 to co-respondent, 367 of physician that witness is unable to attend court, 398 Affinity: as affecting capacity to marry, .17 definition of, 19 [560] INDEX. [The Figures refer to Pages.] Af^nity— continued. _ ^ 2o . . . 236 et seq. legitimacy of issue of marriage void because of, statutes as to, Aflarmation: r .... 146 effect of decree of, ^^®- . . • 9 consent of parent to marriage of mmor ^^ of capacity to marry, ^ of making engagement to marry, ^^^ ^^ ^^^ statutes as to, Agreement: ^^^ as to custody of child, ^^ not to cohabit, 2^^ to modify decree, ^^^ to sustain decree, Agreement to Marry. (See also Contract of Marriage; Engagement TO Marhv; Promise of Marriage.) ^ dissolution of, j^ how made, ^ making on Sunday, 2 through third person, ^ presumption of, 2 upon conditions, 2 within statute of frauds, Alabama: divorce statutes, ^^g^ marriage statutes, ^^2 statistics of marriage and divorce, Alcoholic Liquors : ^^ use of, as ground for divorce, Alimony: ^^^ allowance of gross sum, , . 159 pending appeal, ^ ^^^ to husband, -j^g^ without divorce proceedings, ^^^ considerations entering into award, * ! 160 decree for as debt, ^q^ 36" t'^«l] ' INDEX. [The Figures refer to Pages.] Alimony — continued. definition of, 150 discretion of court as to, 151 enforcement by contempt proceedings, 165 of decree for, 161 by sister state, 166 failure to pay, recognizance on, 374 form of allegation for allowance of, 370 execution for, 371 petition for contempt for non-payment of, 372 to modify decree for, 401 prayer for, 352 liability of non-resident for, 155 manner of awarding, 151 marriage as pre- requisite to, 150 modification of decree for, 163 necessity of separation of parties, 158 order of notice on prayer for, 361 'pendente lite, allowance of, 152 permanent allowance of, 151 prayer for, 155 reference to arbitrator, 161 request for, in libel, 121 statutes as to, 234 et seq. surety for payment of, 161 termination of, 164 under common-law marriage, 153 under foreign decree, 191 Alimony Pendente Lite: enforcement of order for, 152 Allowance : order for, 369 Amendment: of decree for alimony, 163 of libel, 52 of pleadings, 129 Anmilment. (See also Nullity.) action by guardian of lunatic, 7 allowance of alimony in suit for, 152 application by third person, 115 distinguished from divorce, 34 [ 562 ] INDEX. PTie Figures refer to Pages.] Annulment — continued. effect of decree of, 146 form of petition for, 356 grounds for, 7, 36 fraud, 81 impotency, 84 insanity, 90 mistake, 82 syphilis, -^ jurisdiction to decree, 34, 115 laches in suit for, 35 parties to suit for, 35 statutes as to, 235 et seq. venue of suit for, 35 Answer: form of, 407 plea of connivance, 48 Antenuptial Intercourse: effect of, 82 Appeal: allowance of alimony pending, 159 form of order dismissing 397 Appearance : as conferring jurisdiction, H^ by co-respondent, 43, 118 by public officer in divorce suit, 118 Appendix, 459 Application: for allowance, form of, 369 of counsel fees 370 Apprehension: of violence as constituting cruelty, 59 Arbitrator: of amount of alimony, 161 Arizona: divorce statutes, '^^"^ 1Q4 marriage statutes statistics of marriage and divorce, 41- [563] INDEX, [The Figures refer to Pages.] Arkansas : divorce statutes, 237 marriage statutes, 194 statistics of marriage and divorce, 413 Arrest: on execution for alimony, 163 Attachment: form of prayer for 351 of husband's property, 156 order for, ... 364 request for, in libel, '. 121 to enforce payment of alimony, 161 Attempt: to take life as cruelty, 60 Attorney: signature to libel, 121 Attorney and Client: contingent fee, 126 A Vinculo Matrimonii: effect of decree of, 146 B Bankruptcy : efTect of.'on decree for alimony, 160 Bastardy: marriage to prevent conviction of, 77 Bawdy House : entering, as evidence of adultery, . . 46 Behavior of Parties: presumption of engagement to marry from, 3 Bigamy: effect of, 34 what constitutes, . . 54 [564] INDEX. I [The Figures refer to Pages.] Bill of Particulars: form for 375 right to, 130 Bodily Harm: threats of, as constituting cruelty, 59 Bond: on failure to pay aUmony, 374 Breach of Promise : defenses to action for, 3 legal causes for, 3 what constitutes, 3 when remarriage has been forbidden, 2 Burden of Proof: as to impotency 87 in divorce suit, 131 of lucidity, 142 of validity of marriage, 33 California : divorce statutes, 238 marriage statutes, 195 statistics of marriage and divorce, 414 Capacity to Marry: as affected by consanguinity and affinity, 17 public policy, 8 effect of intoxication, 28 of idiot or insane person, 90 what law governs as to, 7 white person with negro, 18 Care of Children, (See also Custody of Children.) statutes as to, 234 et seq. Celebration of Marriage: necessity of, 10 on Sunday, • 4 refusal as breach of contract , 3 [565] INDEX. [The Figures refer to Pages.] Certificate : of decree of divorce, 387 of marriage, 31 Chancery : jurisdiction to decree nullity, 115 Change : of domicil, 100 Change of Venue : form of motion for, 375 Character: defamation of, as ground for divorce, 97 Chastity : reputation for, 50 Child: born of voidable marriage, legitimacy, 16 decree for custody of, 392 et seq. effect of divorce on legitimacy of, 56 form of petition for custody of, 352, 400 prayer to legitimatize, 359 haheaa corpus for, 391 joinder in suit for divorce, 117 order of notice on prayer for custody of, 361 order to produce, in court, 391 preference of, as to custody, 169 statutes as to care and custody of, 234 et seq. support of, 170 validity of marriage of, 21 Child-bearing Organs: want of, as ground for annulment, 85 Children: (See also Child.) custody of, 167 decree for custody of, 392 et seq. effect on, of remarriage before dissolution of prior marriage, . . 8 form of petition for custody of, 352, 400 order of notice on prayer for custody of, 361 statutes as to care and custody of, 234 et seq. [566] Index. [The Figures refer to Pages.) Chloral: use of, as ground for divorce, 69 Ohlorof onn : use of, as ground for divorce, 69 Choking: as cruelty, 61 Christian Science: practising of, by wife, „ 96 Chronic Mania: as ground for divorce, 91 Circumstantial Evidence: of adultery, 43 of marriage, 29 Clergyman : testimony of, to establish marriage, 32 Clerk of Court: issuance of order of notice, 122 Cocaine: use of, as ground for divorce, 69 Cohabitation: as evidence of marriage, 29 definition of, 55 necessity of cessation to constitute desertion, 75 of insane person after restoration to sanity, 7 refusal of, , 77 to renew, after separation, 77 resumption of, as ground for dismissal of libel, 145 Coition: denial of, as cruelty, 61 Collateral Attack: on validity of marriage, 91 Collusion: allegation of, 377 as a defense, 135 [567] INDEX. [The Figures refer to Pages.] as ground for dismissal of libel, 145 vacation of decree, 172 definition of, I35 plea of, to prevent decree absolute, 386 Colorado : divorce statutes, 240 marriage statutes, 196 statistics of marriage and divorce, 415 Colored Person: prohibition of marriage with white person, 18 what constitutes, 18 Common-law Marriage: decree for alimony, 153 of white person and negro, 18 what constitutes, 26 Communicating Disease: as cruelty, 61 Complaint. (See also Petition, Pleading.) allegations of, 121 sigiiing by libellant, 121 Compulsion: marriage performed through, 81 Compulsory Marriage: validity of, , . . 24 Compulsory Reference: to determine physical capacity, 88 Concubine : keeping of, as ground for divorce, 45 Condonation : allegation of, 377 as ground for dismissal of libel, 145 definition of, <■ 137 Conduct of Parties: presumption of engagement from, 3 [568] IXDEX. [The Figures refer to Pages.] Confession: as evidence of marriage, 30 as proof of adultery, 48 Conflict of Laws: capacity to contract marriage, 7 jurisdiction of action for divorce, 100 marriage of white with colored person, 18 validity of marriage, 12 Congenital Incapacity: etfect of, 88 Connecticut: divorce statutes, 241 marriage statutes, 196 statistics of marriage and divorce, 416 Connivance : allegation of, 376 necessity of pleading, 48 what constitutes, 48 Consangtiinity: as affecting capacity to marry, 17 definition of, 19 legitimacy of issue of marriage void because of, 20 statutes as to, 236 et seq. Consent: of guardian to marriage of ward, 9 of parent to marriage of minor, 9 of woman to commission of adultery, 50 to dissolution of engagement to marry, 2 to marriage, 1 Constable: service of process by, 122 Constructive Desertion: what constitutes, 76 Contempt: for non-payment of alimony, 162 form of petition for, 372 order of notice on petition for 373 [569] INDEX. [The Figures refer to Pages.] Oontempt Proceedings: to enforce payment of alimony, 165 Contingent Fee: in divorce suit, 126 Continuity: of desertion, 75 Contract: for contingent fee in divorce suit, 126 of separation, 39 Contract of Marriage. (See also Agreement to Marry; Engage- ment TO Mahuy; Promise of Marriage.) between persons of same sex, 21 how made, 1 legal causes for breach of, 3 making on Sunday, 4 mental capacity to enter into, 7 physical capacity to enter into, 7 public policy as affecting, 8 what law governs capacity to enter into, 7 Conviction of Crime: as ground for divorce, 67 Copulation : defect of, as ground for annulment, 86 Co-respondent. (See also Paramour: Particeps Criminis.) affidavit of notice to, 367 evidence of, 47 right to intervene, 42, 118 Corroboration : of evidence, 133 of testimony of particeps criminis, 47 Costs: decree for, 395 Counsel Fees: allowance in suit for divorce, 153 forjn of application for allowance of, 370 [570] INDEX. [The Figures refer to Pages.] County Attorney: apf)earance in divorce suit, ,. . . 118 Court: giving full faith and credit to decree of, 459 jurisdiction of divorce cause, 99 suit for annulment, 34 vacation of decree, 185 venue of suit for divorce, 120 Crime against Nature: as ground for divorce, 95 Criminal Conduct: as ground for divorce, 95 Criminal Marriages: statutes as to, 193 et seq. Cross-bill: right to file, 128 Cruel and Abusive Treatment: form of allegation of, 354 Cruelty: as ground for divorce, 58 form of allegation of, . 354 Curable Impotency: effect of, 86 Curtesy : agreement to relinquish, 39 effect of divorce on, 146 Custody of Children: considerations entering into award, 168 decree for, 392 discretion of court as to, 167 form of agreement as to, 393 petition for, 352, 400 modification of decree as to, 169 order of notice on prayer for, 361 pending divorce proceedings, 168 statutes as to, 234 et seq. [571] INDEX. [The Figures refer to Pages.] D Damages: for breach of promise to marry, 3 Death: as bar to vacation of decree, 185 as dissolving engagement to marry 2 of spouse, promise to many after, 2 presumption of, from desertion, 80 Decree: agreement to modify, 395 sustain 397 a vinculo matrimonii, ei'iect oi, 1-16 for alimony as lien, 101 enforcement of, I'Jl in sister-state, l(j(> modification of, 163 for costs, 395 for custody of child, 392 d neq. forms of, 379 d srq. form of petition to modify, K)! vacate, 'U.'} giving full faith and credit to, 459. of affirmation, effect of, . . 140 of divorce, certificate of, . 387 of nullity, effect of 146 of other state, vacation of, 173 order to modify, 396 vacation of, 171 Decree Absolute: objections to, 385, 405 plea of collusion to prevent, 386 Decree A Mensa et Thoro: effect of, 147 Decree Nisi: effect of, 147 making absolute, 185 order on, 386 Decree Pro Confesso: right to pass, 129 [572] INDEX. [The Figures refer to Pages.] Deed of Separation: validity, ^^ Defamation of Character: as ground for divorce ^' Defect: of copulation, Defence : of connivance to action for breach of promise 3 to suit for divorce, ^^'^ Defendant: to suit for divorce . . 116 Definition: of adultery, 10 of affinity of alimony '^^ of cohabitation, ^^ of collusion ^^^ of condonation, • • IQ of consanguinity, of desertion ^^ of domicil of marriage ■ • • 140 of recnmination, De^ee: 58 of cruelty, Delaware : 243 divorce statutes, 107 marriage statutes, '' statistics of marriage and divorce, 417 Delay: in bringing suit for divorce, 1^9 Dementia: as ground for divorce, Denial: of sexual intercourse as cruelty 61 [573] INDEX. [The Figures refer to Pages.] Deposition: use of, in divorce suit, 133 Desertion: constructive, 7G continuity, of 75 definition of, 74 denial of sexual intercourse as 62 form of allegation of, 355 imprisonment as, 67 justification for, 143 necessity of cessation of cohabitation, 75 intention, 75 refusal to cohabit, 77 leave native country, 77 where both parties dwell under same roof, 77 Detectives: evidence of, . I 45 Dipsomaniac: divorce from, 70 Disclosure : by husband of amount of property, 160 Discovery: form of order for, 378 Discretionary Cause: for divorce, 73 Discretion of Cotirt: allowance of alimony, 151 custody of children, 167 Disease: communicating of, as cruelty, 61 Disinterested Person: service of process by, 122 Dismissal: as bar to subsequent libel, 145 of appeal, form of order, 397 of libel by court, , I4.5 without prejudice, 146 [574] INDEX. [The Figures refer to Pages.] Dissolution: 2 of engagement to marry, District Attorney: 118 appearance in divorce suit, District of Columbia: 245 divorce statutes, marriage statutes, statistics of marriage and divorce, '^^^ Diverse Citizenship: as ground for removal of cause to Federal court, 99 Divorce: adultery as ground for, cruelty as ground for, decree of, certificate of, discretionary causes for, distinguished from nullity, effect of voluntary separation, on legitimacy of children, on life insurance on property rights entry of hbel, " insanity after marriage, invalidity of marriage as defence to, 1^^ jurisdiction of courts ' nonresident libellee ' power of legislature to grant, promise to marry after, proof of marriage, • resolutions of National Congress 45^ et seg. right of insane person to bring libel for, 9^ to remarry after, '', , ,. ^. . 411 etseq. statistics, as to statutes, as to, ^ vacation of decree of, venue of suit for, Divorce A Mensa et Thoro: „ , 38 effect of, ^Qr. on property rights, • • [ 575 ] INDEX. [The Figures refer to Pages.] Divorce A Vinculo Matrimonii: effect of, 37 on property rights, 186 Domicil: as basis of jurisdiction, 1^^* as determining capacity to contract marriage 7 validity of marriage, 13 definition of, 101 evidence as to, 132 manner of acquisition, 102 of libeUee, -i^''-^ of wife, 113 right of husband to fbc, 78 Dower: agreement to relinquish, 39 effect of divorce on, 140, 1S6 Drawing: of libel, 349 Drug: use of, as ground for divorce, 69 Drunkenness : as defence to cruelty, 65 as ground for divorce, •">■• at celebration of marriage, 143 knowledge of, at time of marriage, 72 Duress: effect of, on marriage, 81 Dwelling under Same Roof: as desertion, 77 E Ecclesiastical Courts: jurisdiction in divorce causes, 99 Emission: necessity of, to constitute adultery, 50 Endangerment: of health, or life, 60 [576] INDEX. [The Figures refer to Pages.] Engagement to Marry. (See also Agreement to Marry; Contract OF Marriage: Promise of Marriage.) as executory contract, 1 dissolution of, 2 how made, 1 legal causes for breach of, 3 making on Sunday, 4 through third person, 2 presumption of 3 upon conditions, 2 within statute of frauds, 3 Entry : of libel, 122 Epileptic: marriage of 11 Equity: jurisdiction to decree nullity, 115 Evasion: of .statute forbidding marriage 25 Evidence: deposition as, 133 of adultery, 43 of domicil, 132 of familiarities, 50 of marriage, 29 of prostitutes 49 of young children 134 pleadings as, 131 record of conviction 53 Examination : form of order for, 378 presumption from refusal to submit to, 88 to determine physical capacity, . . 88 Execution: for alimony, form of, 371 to enforce payment of alimony 161 37 [ 577 ] IXDKX. [The Figures refer to Pages.] Executory Contract: promise of marriage as, 1 Extraterritorial Effect: of statute forbidding marriage of minor, 9 remarriage, 192 Extreme Cruelty: what constitutes, 63 F Failure: to pay alimony, recognizance on, 374 Failure to Prosecute: as ground for dismissal of libel, 145 False Accusations: as constituting cruelty, ... 64 Falsehood: effect on marriage, 24 False Representations: as defence to action for breach of promise, 3 as ground for annulment, 81 Familiarities : evidence of, 50 Family Jars: effect of, 65 Fault Finding: as ground for divorce, 96 Fear: marriage entered into because of, 24 Federal Courts: jurisdiction in divorce causes, 99 Feeble-minded: marriage of, 11 [5781 INDEX. [The Figures refer to Pages.] Felony: conviction of, as ground for divorce, 67 Feme Covert: right to bring suit for divorce, 118 Filling: of libel, 122 Final Decree: for alimony, enforcement in sister-state, 166 Fleeing from Justice: as ground for divorce, 95 Florida: divorce statutes, 246 marriage statutes, 199 statistics of marriage and divorce, 419 Force : adultery committed by, 50 Foreign Ahmony Decree: enforcement of, 166 rights under, 191 Foreign Divorce: giving full faith and credit to decree of, 459 validity of 189 Foreign Marriage: proof of, 32 Foreign State: enforcing decree for alimony, 166 Forms: index to 345 Fraud: as defence to action for breach of promise, 8 as ground for annulment, 31 effect on marriage, 24 form of petition for annulment on ground of, 358 [579] INDEX. [The Figures refer to Pages.] Frauds, Statute of: promise of marriage within, 3 Fraudulent Concealment: of epilepsy, Fugitive from Justice: divorce form, ^^ Full Faith and Credit: decree of other state, ^^^ Future Marriage: upon conditions ^ Future Payments: of alimony, enforcement, 166 O Garnishment: form of prayer for, 351 order for, "^""^ General Denial: form of plea of, 378, 407 General Guardian: right to defend suit for divorce, 117 Georgia: divorce statutes, 248 marriage statutes, 199 statistics of marriage and divorce, 420 Gonorrhoea: as evidence of adultery, 46 Gross Neglect of Duty: as ground for divorce 96 Guardian : action by, to annul marriage of lunatic, 7 consent of, to marriage of ward, 9 intervention by 128 of defendant ward, joinder in suit for divorce, 117 [580] INDEX. [The Figures refer to Pages.] Guardian — continued. right to bring suit for divorce, 117 defend suit for divorce, 117 signature to Ubel, 121 Guardian Ad Litem: right to defend suit for divorce, 117 H Habeas Corpus: for minor child, "^^1 as ground for divorce, "^ Habitual Drunkenness as ground for divor form of allegation of, • • • • 354 Habitual Indignities: as ground for divorce. 96 Hair Pulling as < Hawaii: A1 as cruelty, OKI divorce statutes, 200 marriage statutes, ^^^ Health: treatment endangering, "" Homestead: effect of divorce on, 1^^ House of 111 Fame: entering as evidence of adultery, Husband: allegation of impotency of, 360 allowance to, of alimony, l^-'' attachment of property of, 1^^ disclosure of amount of property, 160 duty to support wife, ^^^ liability for counsel fees of wife, 153 support of wife, , refusal of, to support wife right in property after divorce, 1^^ to custody of child 1^' to fLx place of domicil, '^ [ 581 ] INDEX. [The Figures refer to Pages.] Hydroceles: as cause of impotency, 85 I Idaho : divorce statutes, 254 marriage statutes .... 201 statistics of marriage and divorce, 421 Identifying Witness: in service of process, 124 Idiot. (See Insane Person.) Illegitimacy: remarriage before dissolution of prior marriage, 8 111 Fame: entering house of, as evidence of adultery, . 46 Illicit Relation: as impediment to marriage, 1 Illinois : divorce statutes, 255 marriage statutes, 201 statistics of marriage and divorce, 422 Imbecile: marriage of, 1 1 Immoral Conduct: as ground for divorce, 95 Impairment of Obligation of Contract: marriage not within constitutional inhibition of, 5 Impediment: to marriage, 1 Impersonation: as ground for vacation of decree, 172 Impotency: as ground for annulment of marriage, 7 dissolving engagement to marry, . 2 causes of, 85 effect of, 84 [582] INDEX. [The Figures refer to Pages.] Impotency— (cm^mwed. form of allegation of, order for physical examination, necessity of existence at time of marriage, pleading, of husband, allegation of, of wife, allegation of, presumption as to existence, ' ' qq from refusal to submit to physical examination, .... 88 time of instituting proceedings because of, 88 Imprisonment: as grovmd for divorce form of allegation of, for non-payment of alimony, Inability : to support, effect of, Incapacity : as ground for dissolving engagement to marry, 2 Incestuous Marriage: 17 what constitutes, Incompetency: of parties to bring suit for divorce, ^^'^\ 345 to forms, Indian: prohibition of marriage with white person, ^''^^*- . . 259 divorce statutes, marriage statutes, ^22 statistics of marriage and divorce, Indian Territory: divorce statutes, 202 marriage statutes, Indignities : ^^ as ground for divorce, • * ' INDEX. P?he Figures refer to Pages.] Infant, (See also Minor.) allowance of marriage of, by judge of probate, 11 consent of parent to marriage of, . 9 validity of marriage of, 21 Infectious Disease: communicating of, as cruelty, 61 Injunction: against husband's disposing of property, 161 Innocent Party: suit for divorce by, 116 Insane Person. (See also Lunatic.) capacity to contract marriage, 7, 90 cohabitation after restoration to sanity, 7 marriage of, 7 right to bring suit for divorce, 92, 117 Insanity: after marriage, 8, 91 as defence to charge of adultery, 42 suit for divorce, 142 as ground of annulment, 90 form of petition, 359 Insolvency: effect of, on decree for alimony, 160 Instructions : for drawing libel, 349 Insulting Language: as cruelty, 59 Insurance : as affected by divorce, 187 Intemperance : as ground for divorce, 69 Intention: as determining validity of marriage, 14 to acquire domicil, 102 to desert, 75 [ 584 J INDEX. [The Figures refer to Pages.] Interlocutory Orders: right to pass, 129 Intervention: by guardian, 128 by particeps criminis, 42 in suit for divorce, 118 Intoxication: as defence to cruelty, 65 as ground for divorce, 69 at celebration of marriage, 143 effect of, on marriage, 28 form of allegation of, 354 of woman, as defence to charge of adultery, 50 Iowa: divorce statutes 262 marriage statutes, 204 statistics of marriage and divorce, 423 Issue: of marriage void because of affinity, legitimacy, 20 of vi)iclal)le marriage, 16 proof of non-access, 52 Itch: communicating of, as cruelty, 61 J Joinder: of causes for divorce, 122 of parties in suit for divorce, 116 Judge : of probate court, allowance of marriage of minor, 11 Judicial Divorce: what constitutes, 37 Jurisdiction: acquisition by publication, 114 form of plea to, 376 of actions for divorce, 99 of chancery to decree nullity, 34, 115 [585] INDEX. [The Figures refer to Pages.] Jurisdiction — continued. over nonresident libellee, '*'^^ statutes as to, 234 d «(/• Jury: inferring promise to marry, Justification: of desertion, ^'^•' K Kansas: divorce statutes, 264 marriage statutes, '"^'^ statistics of marriage and divorce, 424 Keeping Concubine: a-s ground for divorce, 45 Kentucky: divorce statutes, 266 marriage statutes, 20.5 statistics of marriage and divorce, 425 Kicking: as cruelty, ^1 Knowledge : of drunkenness at time of marriage, 72 of impotency, 84 L Laches: in moving to vacate decree, 172 in suit for annulment, 35 divorce, 139 Lack of Development: as cause of impotency, ........ 85 Lawful Age: to marry, 1 [586] INDEX. [The Figures refer to Pages.] Law of Place : as determining validity of marriage, 12 Legal Causes: for breach of promise to marry, 3 Legislative Divorce: history of- . 37 in Delaware 418 Legitimacy: effect of divorce on, 56 of issue of voidable marriage, 16 marriage void because of affinity, 20 presumption of 52 proof of non-access, 52 Legitimate: form of prayer to, 359 Lex Loci Contractus: as determining validity of marriage, 12 Libel: allegations of, in general, 121, 127 as to adultery, 53 as to impotency, 88 amendment of, 52 dismissal by court, 145 form of, 350 instructions for drawing, 349 joinder of causes in, 122 necessity of naming particeps criminis, 42 right of insane person to bring, 92 signing by libellant, 53, 121 verification of, 121 Libellant: order for personal liberty of, 368 signing of libel, 53 Lien: decree for alimony as, 161 Life: attempt to take, as cruelty, 60 treatment endangering, 60 [587] INDEX. [The Figures refer to Pages,] Life Insurance: as affected by divorce, 187 Limitation of Action: suit for divorce, 139 Living Apart: as ground for divorce, 98 Loathsome Disease: communicating of, as cruelty, 61 Louisiana: divorce statutes, 269 marriage statutes, 206 statistics of marriage and divorce, 426 Limacy: after marriage, 91 Lunatic. (Sec also Insane Person.) action by guardian to annul marriage of, 7 cohabitation after restoration to sanity, 7 marriage of, 7 right to bring suit for divorce, 117 M Maiden Name : form of prayer for right to resume, 352 resumption of, on divorce, 147 statutes as to right to resume, 238 et seq MaU: notice by, 123 form of, 365 to co-respondent, 367 Maine: divorce statutes, 271 marriage statutes, 206 statistics of marriage and divorce, 427 Maintenance: duty of husband as to, 150 [588] INDEX. [The Figures refer to Pages.] Malformation: of generative organs, 85 Marriage: annulment on ground of fraud, 81 impotency, 84 as pre-requisite to alimony, 150 breach of promise of, '^ celebration of 1^ collateral attack on validity of, .... 91 consent to, definitions of, " effect of duress on, 81 insanity after, "1 evasion of statute forbidding, 25 evidence of, ^ form of offer of, 2 petition to annul, "^^^ grounds for annulment of, ' incestuous, 1' invahdity of, as defence to suit for divorce, 144 law of place as determining validity of, 12 necessity of offer of, ^ • 1 solemnization of, 10 nullity of, ^"* of child, 9, 21 of epileptic, origin of, pre-requisites, proof of, 32, 57 source of, " statistics, Mletseq. status of, ^' ^ table of statutes as to, 193 ei seq. to prevent conviction of bastardy, '' when criminal, 193 ei seq. when prohibited, 193 ei seg. when void, 19^ ^« m- when voidable, 193 e< seq. within prohibited degrees, as ground for dissolving engagement, 2 Marriage Certificate: as evidence of marriage, 31 [589] INDKX. [The Figures refer to Pages.] Marriage Laws: table of 193 e< seq. Marriage Settlement: effect of divorce on, 1^7 Marriage Statutes: table of, 193 c^ seq. Maryland: divorce statutes, 272 marriage statutes, 207 statistics of marriage and divorce 428 Massachusetts: divorce statutes, •"''* marriage statutes, 208 statistics of marriage and divorce, 429 Master: reference to, 1^" Masturbation: as cause of impotency, 85 as constituting cruelty, 64 Mental Capacity: to contract marriage, 7, 90 Mental Suffering: as constituting cruelty, 62 Michigan: divorce statutes, 287 marriage statutes, 209 statistics of marriage and divorce, 430 Minnesota: divorce statutes, 290 marriage statutes, 210 statistics of marriage and divorce, 430 Minor. (See also Infant.) allowance of marriage of, by judge of probate court, 11 consent of parent to marriage of, 9 right to bring suit for divorce, 117 validity of marriage of, 21 [590] INDEX. [The Figures refer to Pages.] Miscegenation: prohibition of, 18 statutes as to, 236 et seq. Misrepresentation : effect on marriage, 24 Mississippi: divorce statutes, 292 marriage statutes, 211 statistics of marriage and divorce, 431 Missouri: divorce statutes, 293 marriage statutes, 211 statistics of marriage and divorce, 432 Mistake : as ground for annulment, 82 Mistaken Identity: effect of, on marriage, 23 Mistake of Fact: as defence to charge of adultery, 51 Mistake of Law: as defence to charge of adultery, 51 Modification: of decree as to custody of child, 169 agreement for, 395 alimony, 163 Mongolian: prohibition of marriage with white person, 18 Montana: divorce statutes, 295 marriage statutes, 212 statistics of marriage and divorce, 433 Morphine: use of, as ground for divorce, 69 [591] INDEX. [The Figures refer to Pages.] Motion: for alimony ^^^* for specifications, •'' •' to transfer suit to other county 37.i Mutual Consent: to dissolution of engagement to marry 2 to separation, not desertion i^ Mutual Cruelty: effect of, 65 N Nagging: as constituting cruelty, 63 National Congress: resolutions on uniform divorce laws, 453 et seq. Native Country: refusal to leave, as desertion 77 Natural Impotency: presimiption as to existence, 86 Nebraska: divorce statutes, 297 marriage statutes, 213 statistics of marriage and divorce, 434 Necessaries: liability of husband for, 79 Ne Exeat: to compel payment of alimony, 162 Neglect to Provide: form of allegation of, 355 Negro: prohibition of marriage with white person, 18 what constitutes, 18 Nervous Temperament: cmelty as affecting, 60 [592] INDEX. [The Figures refer to Pages.] Nevada: divorce statutes, 298 marriage statutes, 213 statistics of marriage and divorce, 435 New Hampshire: divorce statutes, 300 marriage statutes, 214 statistics of marriage and divorce, 436 New Jersey: divorce statutes, 302 marriage statutes, 215 statistics of marriage and divorce, 437 New Mexico: divorce statutes, 303 marriage statutes, 215 statistics of marriage and divorce, 438 New York: divorce statutes, 305 marriage statutes, 216 statistics of marriage and divorce, 438 Non-access: proof of, 52 Nonage : form of petition for annulment on ground of, 359 statutes as to, 233 et seq. table of, 22 Non Compos Mentis. (See also Insane Person.) right of, to bring libel, 92 Non-payment: of alimony, recognizance on, 374 Non-resident: liability for alimony, 155 North Carolina: divorce statutes, 307 marriage statutes, 217 statistics of marriage and divorce, 439 38 [ 593 ] INDEX. [The P'igures refer to Pages.] North Dakota: divorce statutes, 309 marriage statutes, 218 Notice : affidavit of, to co-respondent 367 by publication, 123 form of, 362 by registered letter, 123 form of affidavit of, 365 order of, on petition for contempt, 373 on prayer for alimony, 361 to nonresident libellee, 459 Nullity. (See also Annulment.) allowance of alimony in suit for, 152 application by third person, 115 distinguished from divorce, 34 effect of decree of, 146 grounds for, 36 jurisdiction of suit for, 34, 115 laches in suit for, 35 parties to suit for, 35 venue of suit for, 35 o Objection: to decree absolute, 385, 405 Obligation of Contract: marriage not within constitutional inhibition of impairment of, 5 Occasional Intoxication: as ground for divorce, 71 Offer of Marriage: acceptance of, 1 by third person, 2 form of, 2 necessity of, 1 withdrawal of, 2 Ohio: divorce statutes, 311 marriage statutes, 218 statistics of marriage and divorce, 440 [594] IN'DEX. [The Figures refer to Pages.] Oklahoma: divorce statutes, ^^^ 21 Q marriage statutes, ^'■^ Old Age: as cause of impotency, °^ Opium: use of, as ground for divorce, "9 Opportunity: to commit adultery, *^ Order: for allowance, ^"^ for personal liberty of libellant, 368 for physical examination, 378 of dismissal of appeal, 397 that decree nisi shall not become absolute, 386 to modify decree, 396 to produce child in court, 391 Order of Notice: 362 by publication, issuance of, on petition for contempt, 373 on prayer for custody of children, 361 Oregon: divorce statutes, 91 Q marriage statutes, ^'■^ 314 ' 219 statistics of marriage and divorce, 441 Origin: of marriage, ^ P Paramour. (See also Co-Respondent; Particeps Criminis.) evidence of, 47 right to appear and defend, 42 Pardon: after conviction, effect of, °S [595] INDEX. [The Figures refer to Pages.] Parent: consent of, to marriage of child 9 joinder in suit for divorce, 117 Partial Divorce: effect of, 38, 147 on property rights, 186 statutes as to 233 et seq. Particeps Criminis. (See also Co-Respondent; Paramour.) amendment to show name of, 52 evidence of, -17 necessity of naming, in libel 42 right to appear and defend, 42 Particulars : bill of, 130 Parties: as witnesses, 132 defendants to suit for divorce, 1 1 G intention of, as determining validity of marriage, 14 to nullity suit, 35 to suit for divorce, 116 Passion: display of, as constituting cruelty, 59 Pecuniary Ability: of husband to support wife, 93 Pendente Lite: form of application for allowance of alimony, 370 Penetration: necessity of, to constitute adultery, 50 Pennsylvania: divorce statutes, 316 marriage statutes, 220 statistics of marriage and divorce, 442 Periodical Debauches: effect of, .... .... 71 Perjury: as ground for vacation of decree, 172 [596] INDEX. [The Figures refer to Pages.] Permanent Alimony: allowance of, 151 Personal Liberty: of libellant, order for, 368 Personal Service: of process, 123 outside of State, 124 Personal Violence: necessity of, to constitute cruelty, 59 Petition. (See also Complaint; Pleading.) allegations of, 121 as to impotency, 88 for alimony, 155 for annulment, form of, 356 for contempt for non-payment of alimony, 372 for custody of children, 440 for writ of protection, 399 necessity of naming particeps criminis, 42 signing by libellant, 121 to modify decree for alimony, 401 to vacate decree, 171, 403 Philippines: divorce statutes, 318 marriage statutes, 221 Physical Capacity: to contract marriage, 7 Physical Examination: form of order for, 378 presumption from refusal to submit to, 88 to determine capacity of party, 88 Physical Violence: necessity of, to constitute cruelty, 59 Physical Weakness: of husband to support wife, ... ......... 93 Physician: affidavit that watness is unable to attend court, 398 [597] INDEX. [The Figures refer to Pages.] Pimps: evidence of, 49 Plain tifE: to suit for divorce, .... 116 Pleading. (See also Complaint; Petition.) amendment of, 129 as evidence, 131 bill of particulars, 130 cross-biU, 128 Plea to Jurisdiction: form of, 376 Polygamy: what constitutes, 64 Poor Debtor: relief of, from payment of alimony, 163 Porto Rico: divorce statutes, 319 marriage statutes, 222 Posting Wife: effect of, 79 Prayer: for alimony, 155 Preference ; of child as to custody, 169 Pregnancy: at time of marriage, 81 Presumption: as to existence of impotency, 86 as to person who may serve process, 122 from refusal to submit to physical examination, 88 in suit for divorce, 133 of death from absence, 55 desertion, 80 of legitimacy, 52 [598] INDEX. [The Figures refer to Pages.] Presumption — continued^ of marriage, ... 29 from cohabitation, 2 of promise to marry, Prior Insanity: ^^ as ground for annulment, Privileged Communication: ^^^ allegation of libel as, Probate Court: ^^ consent of judge of, to marriage of mmor. Process: service of, 122 Profanity: gg as cruelty, Prohibited Degrees: marriage within, as ground for dissolving engagement, . . • ^ Prohibited Marriages: igsetseq. statutes as to, Prohibition: jg2 of remarriage, Promise of Marriage. (See also Aokkkmkxt to Mxkkv; Coktkxct OF Marriage: Engagement to Marry.) .... 1 as executory contract, 3 breach of, ...."• 2 dissolution of, 1 how made, .... 3 legal causes for breach of, . , . 4 making on Sunday, ... 2 through third person, !'.".*.. 3 presumption of, 2 upon conditions, .... 3 within statute of frauds Proof: 29 of marriage, '^ 124 of ^f^«^' [ 599 ] INDEX. [The Figures refer to Pages.] Property Rights: effect of divorce on, 186 Prosecuting Attorney: appearance in divorce suit, ll*^ Prostitutes : evidence of, '^^ Protection: form of petition for writ of, 399 Provocation: as a defence to a suit for divorce, 143 Puberty: marriage before arrival at age of, 21 Publication: order of notice by, 362 service by, 114, 123 validity of decree on service by, 459 Public Defamation: as ground for divorce, 97 Public Officer: appearance by, in divorce suit, 118 Public Policy: as affecting capacity of parties to marry, 8 R Rape: as defence to charge of adultery, 42 Ratification : of marriage of child 21 of voidable marriage 16 Receiver: of husband's property, 162 Recognizance : on failure to pay alimony, 374 [ 600 ] IXDEX. [The Figures refer to Pages.] Reconcilation: effect on alimony, 164 Records: of conviction, as evidence, 53 of marriage, 31 Recrimination: allegation of, as evidence, 131 as a defence, 139 as ground for dismissal of libel, 145 definition of, I'^O form of plea of, 378 Reference: to determine amount of husband's property 160 physical capacity, 88 Refusal: of sexual intercourse, as desertion, 80 of support, 93 to cohabit, ' ' to follow husband, as desertion, 78 to renew cohabitation after separation, 77 Refusal to Provide: ' form of allegation of, 355 Registered Letter: notice by, 1-3 form of, 365 to co-respondent, 367 Relaxation: as cause of impotency, 85 Religious Society: joining of, as ground for divorce, 96 Remarriage : before decree of divorce is made absolute, 56 before dissolution of prior marriage, effect on children .... 8 effect of statute forbidding, 9 on promise, when forbidden, 2 extraterritorial effect of statute prohibiting, 192 [ 601 ] INDEX. [The Figures refer to Pages.] Remarriage — continued. restrictions against, 148 right to, 25 statutes as to, 234 et seq. vacation of decree after, 172 Removal of Cause: to Federal court, 99 Repealed Statute: vacation of decree granted under, 173 Reputation: as proof of marriage, 31 as to marriage, 29 for chastity, 50 Residence : as affecting jurisdiction, 102 statutes as to, 234 e« seq. Resolutions: by National Congress on uniform divorce laws, .... 453 et seq. Restraint: upon personal liberty of libellant, 368 Review: of foreign decree of divorce, 189 Revival : of condoned offence, 138 Revocation : of agreement to separate, 77 Rhode Island: divorce statutes, 320 marriage statutes, 223 statistics of marriage and divorce, 443 Rupture : as cause of impotency, 85 [602] INDEX. [The Figures refer to Pages.] S Scienter: as a defence to charge of adultery, 51 Scolding: as ground for divorce, 96 Security: for payment of alimony, 162 Separate Support: right of wiie to, 148 Separation: as defence to charge of adultery, 51 by mutual consent not desertion, 76 deed of, 39 from necessity, 75 revocation of consent to, 77 validity, 39 Service: acceptance of, 124 by publication, 123 of process, 122 proof of, 124 regularity in 125 statutes as to, 234 et seq. Setting Aside: of decree, 171 Sexual Intercourse: absence of, as evidence of impotency, 87 abuse of, as constituting cruelty, 62 before marriage, 82 denial of, as cruelty, 61 refusal of, as desertion, 80 Shakers: joining of, as ground for divorce, 96 Signature : to libel, 53, 121 [ 603 ] INDEX. [The Figures refer to Pages.] Sister-State: enforcing decree for alimony, 166 Sodomy: as ground for divorce, 95 Solemnization of Marriage: necessity of, 10 Source : of marriage, 6 South Carolina: divorce statutes, 323 marriage statutes, 224 South Dakota: divorce statutes, 324 marriage statutes, 225 Specifications : bill of, 130 motion for, 375 Specific Performance: of foreign decree for alimony, 191 Spendthrift: right to bring suit for divorce, 117 Spitting: as cruelty, 61 Spouse: promise to marry after death of, 2 Squandering: wife's property, 94 Statistics : of marriage and divorce, 411 etseq. Statute of Frauds: promise of marriage within, 3 Statutes: as to divorce, 233 et seq. marriages, 193 et seq. [ 604 ] INDEX. [The Figures refer to Pages.] Striking: as cruelty, ^1 Subsequent Insanity: as ground for divorce, 90 Successive Executions: to secure alimony, 163 Subsequent Marriage: vacation of decree after, 172 Summons : form of, 362 Sunday: promise of marriage made on 4 Support: duty of husband as to, 150 liability of husband for, 79 refusal of, 93 Surety: for payment of alimony 161 Surgical Examination: presumption from refusal to submit to, 88 to determine physical capacity, 88 Syphilis: as defence to action for breach of promise, 3 as evidence of adultery, 46 as ground for annulment of marriage, 24 T Table : of divorce statutes, 233 et seq. of marriage statutes, 193 et seq. of nonage, 22 of statistics of marriage and divorce 411 et seq. Temper: display of, as constituting cruelty, 59 [605] INDEX. [The Figures refer to Pages.] Temporary Alimony: allowance of, 152 Temporary Impotency: effect of, 86 Tennessee: divorce statutes, 326 marriage statutes, 226 statistics of marriage and divorce, 444 Termination: of alimony 164 Testes: loss of, 85 Texas: divorce statutes, 328 marriage statutes, 226 statistics of marriage and divorce, 445 Third Person: suit for divorce by, 116 Threats : as constituting cruelty, 59, 64 Transfer: of suit to other county, form of motion for, 375 Treatment: endangering health or life, 60 Trustee : of property awarded wife as alimony, 163 Trustee Process: form of prayer for attachment by, 351 order for attachment by, 364 Unchastity: accusation of, as cruelty, 59, 64 as ground for breach of promise to marry, 3 [606] INDEX. [The Figures refer to Pages.] Uniform Divorce Laws: resolutions of National Congress, 453 et seq. Unkind Language: as ground for divorce, "" Unnatural Contract: marriage between persons of same sex, 21 Utah: divorce statutes, ^^^ marriage statutes, 227 statistics of marriage and divorce, 446 V Vacation : after subsequent marriage, 172 by court on its own motion, 185 death as bar to, l^-^ grounds for, l''^ 171 how effected, ^'^ of decree of divorce, 1' 1 form of petition for, 403 of other state, 1^3 who may apply for, 1' 1 Vagina: malformation of, °'^ Validity of Marriage: as affected by consanguinity and affinity 17 law of place, 12 Venereal Disease: as evidence of adultery, 46 as ground for annulment of marriage, 24 communicating of, as cruelty, 61 Venereal Itch: communicating of, as cruelty, 61 Venue : form of motion to change, 375 of suit for annulment, ^^ 1- 120 divorce, ^"^ [607] INDKX. [The Figures refer to Pages.] Verification: of libel I'-'l Vermont: divorce statutes, 331 marriage statutes, 228 statistics of marriage and divorce, 446 Vile Language: use of, as ground for divorce, 96 Violence : apprehension of, 59 Virginia: divorce statutes, 333 marriage statutes, 229 statistics of marriage and divorce, 447 Voidable Marriage: effect of, . . 16 ratification of 16 statutes as to, 193 et seq. Void Marriage: effect of, 16 statutes as to, 194 et seq. Voluntary Separation: as bar to divorce, 40 W Washington: divorce statutes, 335 marriage statutes, 230 statistics of marriage and divorce, 448 Wasting of Estate : what constitutes, 70 West Virginia: divorce statutes, , 337 marriage statutes, 230 statistics of marriage and divorce, 449 [608] IXDEX. [The Figures refer to Pages.] Whipping: as cruelty, 61 Wife: allegation of impotency of, 360 duty of husband to support, 150 liability of estate of, for counsel fees, 153 husband for support of, 79 property awarded to, as alimony, trustee for, 163 protection of, pending suit for divorce, 129 refusal to follow husband 78 right in property after divorce 187 to insurance after divorce, 187 to resume maiden name on divorce, 147 Wilful Desertion: as ground for divorce, 73 Wisconsin: divorce statutes, 339 marriage statutes, 231 statistics of marriage and divorce, 450 Withdrawal : of offer of marriage, 2 Witness: affidavit of inability to attend court, 398 party as 132 to service of process, 124 Writ of Protection: petition for, 399 Wyoming: divorce statutes, 341 marriage statutes, 232 statistics of marriage and divorce, 451 Y Young Children: evidence of, .... , . . . 134 39 [609] UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. I LAW LIBRARY UNIVEaSITY OF rATTPrkwxTTjp , UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 798 468 5 Univers: South Libi