8 When divorce may be re

It is usual to insert in the decree a clause, that the defendant may not marry again until the death of the complainant, but that the complainant is at liberty to marry again during the life of the defendant. This is in pursuance of the 47th section of the statute. (2 R. S., 146.)

Although the fact of adultery is established, the court may fused, the a- deny a divorce.

dultery being

proven.

1st. Where the offence shall appear to have been committed by the procurement, or with the connivance of the complainant. 2d. Where the offence charged shall have been forgiven by the injured party, and such forgiveness shall be proven by express proof, or by the voluntary cohabitation of the parties, with knowledge of the fact. 3d. Where the suit shall not have been brought within five years after the discovery by the complainant of the offence charged. And, 4th. Where it shall be proved that the complainant has also been guilty of adultery, under such circumstances as would have entitled the defendant, if innocent, to a divorce.(1)

As to the first case, where the offence has been committed by the procurement, or with the connivance of the complainant, it is presumed that procurement is used in the statute as synonymous with collusion as understood in the ecclesiastical law; viz., where there is an agreement for one party to commit the adultery, so as to suffer the other to obtain the remedy.(2)

Connivance, by the same law, is acquiescence in the offence, after knowledge of it has been obtained, with the expectation that the guilt will be renewed. It is to be proved by a train of conduct and circumstances. On the part of the husband, matrimonial cohabitation after knowledge is connivance.(3)

Connivance, in the acceptation of that law, differs from condonation. The latter may be meritorious; connivance involves criminality. It seems to involve acquiescence in future anticipated guilt, as well as in the past.(4)

As to the case of forgiveness, or condonation, it has been

(1) 2 R. S., 145, § 40.

(2) Creeve v. Creeve, 3 Haggard, p. 130.

(3) Rogers v. Rogers, 3 Hagg. Rep., p. 58. Moorsom v. Moorsom, 3 Hagg., 105. Hodges v. Hodges, Ibid. 119.

(4) Turton v. Turton, 3 Hagg., 356.

held, that although the offence has been forgiven, (either expressly or impliedly from cohabitation with knowledge of the fact,) yet if the same offence, or one of the same class is repeated, the condonation is at an end, and the right to the divorce is revived.(1)

It is a question, whether subsequent cruel treatment will be sufficient to revive a condoned adultery.

In the case of Johnson v. Johnson, the vice-chancellor of the first circuit held, that subsequent ill treatment by the husband, revived a condoned adultery. (See 1 Edwards' Rep. 439.) Upon an appeal, the chancellor admitted this to be the English rule, but considered it not to prevail in our state, and to be inapplicable to our system as to divorces. He also considered that supposing the rule to prevail, there was not ground suffieient to apply it in the case before him. (4 Paige, 460.)

The cause was carried to the court of errors. (14 Wendell, 637.) Chief Justice Savage was very decided in the opinion, that subsequent ill treatment would revive the right to sue for the divorce. Senator Tracy supported the views of the chancellor. The decree was reversed by a vote of 11 to 9. The reporter adds, that upon settling the decree, senator Kemble stated, that he had voted for reversal on the ground that a condonation had not been established by the proofs in the cause, and had not examined the question of a revival. The reporter adds, that the question must be considered undecided, the opinion of the vice-chancellor having the support of the chief justice, justice Neilson, and nine senators, and that of the chancellor, of senator Tracy, and eight senators.

A defendant may deny the adultery charged, set up a forgiveness, and allege acts of adultery by the complainant as a compensatio criminis in the same answer.(2)

The same jury may be directed to inquire into all these matters.(3)

If the wife is complainant, the legitimacy of any children of Legitimacy. the marriage, born or begotten of her before the filing of the

bill, shall not be affected by the decree of dissolution.(4)

And if the husband is complainant, the legitimacy of chil

(1) Smith v. Smith, 4 Paige, 432. Johnson v. Johnson, Ibid. 469. (2) Smith v. Smith, 4 Paige, 434.

(4) 2 R. S., 145, § 41.

(3) Ibid.

10

Disposition of children.

11 Effect of de

property of the

wife.

dren, born or begotten before the commission of the offence charged, shall not be affected by the decree.(1) The legitimacy of other children of the wife, may be determined by the court upon the proofs in the cause. (2) In every such case, the legitimacy of all children begotten before the commencement of the suit shall be presumed, until the contrary shall be shown.(3)

In the case of Cross v. Cross, 3 Paige, 140, the chancellor stated, that it was the duty of the court, to examine the proofs as to alleged illegitimacy with the most rigid scrutiny, in order to prevent the rights of innocent children from being sacrificed by the misconduct or negligence of their parents. The chancellor also cites and approves of the decision in the Banbury case. 1 Sim. & St. Rep., 153.

He also held, that the admissions of the wife, as to the bastardy of a child, could not be received-although as to her own guilt they might be, in connection with other satisfactory proof.

If the husband would question the legitimacy of any of the children of his wife, the allegation that they are, or that he believes them to be illegitimate, must be distinctly stated in the bill.(4)

If a reference is ordered, the master is to take proofs, and report his opinion upon the question of legitimacy, as well as upon the other matters of the bill;(5) and if a feigned issue is awarded, an issue on the question of legitimacy of the children shall be awarded and tried at the same time.(6)

If a wife be complainant, and a decree of dissolution be pronounced, the court may make a further order or decree, compelling the defendant to provide for the maintenance of the children of the marriage, and to provide such allowance to the complainant for her support, as the court shall deem just, having regard to the circumstances of the parties respectively.(7)

If a wife be complainant, and a decree dissolving the marriage cree as te the be pronounced, and she is the owner of any real estate, or has in her possession any goods or things in action, which were left with her by her husband, acquired by her own industry, given to her by devise or otherwise, or to which she may be entitled by the decease of any relative intestate, all such real

estate, goods or things in action, shall be her sole and absolute property.(1)

And if the husband be complainant, and such a decree be pronounced, the right of the complainant to any real estate owned by the defendant at the time of pronouncing the decree, in her own right, and to the rents and profits thereof, shall not be taken away or impaired by such dissolution of the marriage; and he shall also be entitled to such personal estate and things in action as may belong to the defendant, or be in her possession at the time such decree shall be pronounced, in like manner as though the marriage had continued.(2)

A wife being a defendant in a suit brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband's real estate, or any part thereof, nor to any distributive share of the personal estate.(3)

12

Dower.

SECTION III.

LIMITED DIVORCES.

A separation from bed and board for ever, or for a limited time, may be decreed by the court on the complaint of a married woman, in the following cases :

1

1st. Between any husband and wife, inhabitants of the state. Jurisdiction. 2d. Where the marriage shall have been solemnized, or shall have taken place within the state, and the wife shall be an actual resident at the time of exhibiting her complaint. 3d. Where the marriage shall have taken place out of the state, and the parties have become and remained inhabitants of the state at least one year, and the wife shall be an actual resident at the time of exhibiting her complaint.(4)

By an act, passed in 1824, (Ch. 205, § 12,) it was declared lawful for the court to extend the same rights to husbands that are given to femes covert, by the 10th and 11th sections of the act concerning divorces, &c., and to grant to the husband the same relief, for the like causes as femes covert are entitled to,

(1) 2 R. S., 146, § 44. (3) Ibid. § 46.

(2) Ibid. § 45.

(4) Ibid. § 48.

2

Next friend of wife.

3

Oath to bill.

4

Defence.

5

Reference.

under the act aforesaid. In the case of Perry v. Perry, 2 Paige, 506, it was decided, that this section still continued in force.

Such separations may be decreed for the following causes :-1st. The cruel and inhuman treatment by the husband of his wife. 2d. Such conduct, on his part, towards her, as may render it unsafe and improper for her to cohabit with him. 3d. The abandonment of the wife by the husband, and his refusal or neglect to provide for her.(1)

The bill of the complainant, in every case, must specify particularly the nature and circumstances of the complaint on which she relies, and shall set forth times and places with reasonable certainty.(2) See the form, Appendix, No. 320.

The wife cannot file this bill in her own name. She must unite with some one as her next friend. If the bill is filed in her own name, the defendant may demur.(3)

The next friend must be worth two hundred and fifty dollars over and above his debts.(4) The objection to his sufficiency may be taken upon a motion to remove him, as in Lawrence v. Lawrence, 3 Paige, 269, or upon an application to stay proceedings until a proper next friend should be appointed, or security for costs given, as in Robertson v. Robertson, 3 Paige, 387. The wife, in a proper case, may be authorized to sue in forma pauperis. But the court will first ascertain that she has probable cause for filing the bill.

The bill must be verified by oath, in the usual manner of verifying bills where an oath is required.(5)

In the case of R— v. R—, 1835, counsel feeling some uncertainty by whom this oath should be taken, a jurat was annexed for both the wife and next friend. See Appendix, No. 324.

The defendant may be permitted to prove, on his justification, the ill conduct of the complainant, and on establishing such defence to the satisfaction of the court, the bill shall be dismissed.(6)

If the bill is taken as confessed, or the facts charged are admitted by the answer, the complainant may apply on any regu

(1) 2 R. S., 147, § 49.

(2) Ibid. § 50.

(3) Wood v. Wood, 2 Paige, 454. 8 Wendell, 357.
(4) Robertson v. Robertson, 3 Paige, 387.
(5) Rule 163.

(6) 2 R. S., 147, § 51.