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that where there was reason to believe that a slight surgical operation would remove the incapacity, the court could not pronounce a sentence of nullity.

7 It was before observed, that the 45th section of the act, Proofs how

taken. (2 R. S., 175,) prescribes that issues upon the legality of a marriage should be tried by a jury, except the case where the marriage is sought to be annulled on the ground of physical incapacity. I presume, therefore, that in such a case, if the allegations are denied, proofs are to be taken before the examiner, or if the bill is taken as confessed, by a master under the 164th rule.(1)

Suits to annul a marriage, on any ground, are to be by bill, and conducted in the same manner as other suits prosecuted in this court, which has the same power to award issues, decree costs, and enforce its decrees, as in other cases.(2)

Hence the practice is, as stated in the former volume of this work, with the following modifications.

8 Where this bill has been taken as confessed, or the facts Reference. charged therein are admitted by the answer, the complainant may apply to the court on any regular motion day, or in term, upon due proof of the regularity of the proceedings, to take the bill as confessed, or upon the bill and answer, for a reference to the master, to take proof of all the material facts charged in the bill, and to report such proof to the court, with his opinion thereon.(3)

This form of an affidavit of regularity in a mortgage cause, (Appendix, No. 314,) will suffice in the present case.

This reference is necessary, in consequence of the provision of the 34th section of the statute, (2 R. S., 144,) that no sentence of nullity shall be pronounced solely upon the declarations or confessions of the parties; but the court shall, in all cases, require other satisfactory evidence of the existence of the facts on which the allegation of nullity is found. This is in conformity with the previous course of the court. Confessions and declarations are still admissible, but must be supported by other proof.(4)

(1) Devanbagh v. Devanbagh, 5 Paige, 554. (2) 2 R. S., 144, § 35.

(3) Rule 164. (4) See Office, &c., Master in Chancery, page 174—and especially the passage from Clarke's Praxis in curiis Ecclesiasticis.

cases.

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The master, it is to be noted, must report the proofs taken by him, as well as his opinion thereon.

And in the case of a bill upon the ground of nonage, an affidavit must be produced, showing that the parties have not freely cohabited for any time as husband and wife, after the complainant had obtained the age of consent.(1) This, I presume, must be made by the complainant. But if the bill is to be sworn to, it should contain this allegation, and then I pre

sume an affidavit would be unnecessary. 9 Dismissal of If the bill is to avoid the marriage on any ground but that of bill in other

physical incapacity, and the material allegations are denied in the answer, and no replication is filed in due season, the defendant on due notice, may apply to have the bill dis

missed. Issue. If a replication is filed, either party without entering any

order to produce witnesses, may, on the usual notice to the adverse party, apply for a feigned issue.(2)

For the proceedings upon a feigned issue, in case of adultery, (see post. II, sub.)

Any matter which would be a bar to the annulling of the contract may be set up in the answer, and if an issue is taken

upon it, it shall be tried at the same time, and in the same man11

ner as other issues of fact in the cause.(3) Hearing. No decree of nullity can be made, of course, by the default

of the defendant, or in consequence of any neglect to appear at the hearing, or by consent. The cause must be heard after the trial or upon the coming in of the master's report, at a

stated term of the court (4) 12 Sentence. For the form of a sentence declaring the nullity of a mar

riage, see Appendix, No. 315.

If the sentence is pronounced during the life-time of the parties, it is conclusive evidence of the invalidity of the marriage in all courts and proceedings; but if pronounced after the death

(1) Rulc 168. 2 R. S., 142, § 21.

(2) Rule 167. 2 R. S., 175, § 45. By this section, all issues upon the legality of a marriage, (except where the ground is physical incapacity,) shall be tried by a jury of the country, and the chancellor shall award a feigned issue for the trial thereof. (3) Rule 168.

(4) Rule 170.

of either of the parties to the marriage, it shall only be conclusive evidence as against the parties in the suit, and those claiming under them.(1)

SECTION II.

DIVORCES DISSOLVING THE MARRIAGE CONTRACT.

ADULTERY.

a di

1 A divorce may be decreed, and marriages dissolved, when

Cases in

which ever adultery has been committed by husband or wife, in the vorce may be following cases.

decreed. 1. Where both husband and wife were inhabitants of this state, at the time of the commission of the offence.

2. Where the marriage has been solemnized, or has taken place within this state, and the injured party, at the time of the commission of the offence, and at the time of exhibiting the bill of complaint, shall be an actual inhabitant of this state.

3. Where the offence has been committed in this state, and the injured party, at the time of the exhibiting the bill of complaint, is an actual inhabitant of this state.

It will be noticed, that there is a variation in the present form from the former act. By a clause of the first section of that act, the party injured was to be a resident, where the marriage had been solemnized in the state. The term inhabitant is now used throughout. See upon this subject the auth collected, Office and Duties Masters in Chancery, 170, 173. It is probable that the case of Williamson v. Parisien, 1 Johns. C. R., 392, furnishes the rule of construction upon each of the subdivisions of the section.

If the bill is by a wife, and she resides in the state, she shall be deemed an inhabitant thereof, although the husband reside elsewhere.(2)

A bill for a divorce may be exhibited by a wife in her own Bill by a wife.

2

(1) 2 R. S., 143, § 37.

(2) 2 R. S., 148, § 57.

3

neces

sary.

4

name, as well as by a husband.(1) It is settled, that this provision extends only to the cases of a divorce sought on the ground of adultery. If the bill is for a limited divorce, the

wife must sue by a next friend.(2) Oath

The bill, whether filed by husband or wife, must be verified by oath, in the usual manner of verifying bills.(3) And the complainant must positively aver that the adultery charged was committed without his consent, connivance, privity or procurement; that five years have not elapsed since he discovered the fact that such adultery had been committed ; and that he has not voluntarily cohabited with the defendant since the discovery of such adultery.(4) For the form of a bill, see Appendix, No. 316.

The answer may in all cases be without oath or affirma

tion.(5) Admission of If the adultery be admitted, or the bill be taken as confessed, charge. Re- the court shall refer the matter to a master, with directions to ference.

take proof of the matters charged, and to report the same to the court, with his opinion thereon, and the cause shall be heard on such proof and report, before any final decree shall be pronounced.(6)

After the order is entered to take the bill as confessed, or the answer is filed admitting the facts charged, a motion may be made on any motion day, or in term, for an order of reference.(7)

If the bill is taken as confessed, there must be made and read on the motion, an affidavit of the regularity of the pro

ceedings.(8) See the order of reference, No. 317. Denial If the material allegations in the bill are denied by the ancharge, matters of deswer, and no replication is filed within the time allowed by the fence. rules of the court, the defendant, on due notice, may apply to

have the bill dismissed.(9)

If a replication is filed, either party, without entering any

5

of and

(1) 2 R. S., 144, $ 37.
(2) Wood v. Wood, 2 Paige, 454; 8 Wendell, 357.
(3) Rule 163.

(4) Ibid.
(5) 2 R. S., § 39.

(6) 2 R. S., $ 41. (7) Rule 164.

(8) Ibid. (9) Rule 167.

order to produce witnesses, may, on the usual notice to the adverse party, apply for a feigned issue.(1)

It is provided by statute, that if the offence charged be denied, an issue is to be made up for the trial of the facts contested by the pleadings, by a jury of the country at some circuit court.(2) The court may direct a special jury to be struck, and may make the necessary orders for procuring a list of jurors, and for striking the same.(3)

See the orders for a feigned issue, Appendix, No. 317, and of the issue itself, No. 318.

The defendant may, in the answer, set up the adultery of the complainant, or any other matter which would be a bar to a divorce.(4) The answer may include a denial of the charge of adultery, and an allegation of the adultery of the complainant, or a condonation of the offence.(5) If the adultery of the complainant has not been discovered, or has not been committed until after the answer of the defendant has been filed, the court will permit the defendant to file a supplemental answer, or a cross bill, to set up such defence (6)

If an issue is taken upon a defence set up in the answer, such as a condonation, or the adultery of the complainant, it shall be tried at the same time, and in the same manner as other issues of fact in the cause.(7)

The court may award a new, or further trial of the issues, as often as justice shall require.(8)

For the proceedings upon the issue, and other points of practice connected with it, see this Treatise, Vol. I., p. 502.

No decree can be pronounced, as of course, upon the default, or in consequence of any neglect to appear at the hearing of the cause, or by consent. The cause must be heard after the trial of the feigned issue, or upon the coming in of the master's report, at a stated time of the court.(9)

Where no one appears on the part of the defendant, the details of the evidence in adultery cases shall not be read in public, but shall be submitted to the chancellor in open court.(10)

For the form of a decree, see Appendix, No. 319.

6 Issue.

7 Decree.

(1) Rule 167.
(2) 2 R. S., 145, $38.

(3) Ibid. (4) Rule 168.

(5) Wood v. Wood, 2 Paige, 108. (6) Smith v. Smith, 4 Paige, 432.

(7) Rule 168. (8) 2 R. S., 145, $ 40. (9) Rule 170.

(10) Ibid. VOL II.

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