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with him, and that when she refused so to do he violently choked and beat and maltreated her.

"4. That by reason of said conduct and the disgust produced in the mind of this defendant through the same, and because she feared for her personal safety and because her happiness had been thereby totally destroyed, she separated from the said G., in the month of October, 1891. and refused longer to live under the same roof with him.

"5. That after her separation from the said G., he filed a bill or petition for divorce in this court against this defendant on the ground of adultery, and named therein a number of men with whom he charged this defendant with having committed adultery, and that the said charges were denied by this defendant and the said cause came on for trial, and the said bill was dismissed, with costs, in or about the year 1892.

"6. That since the filing of said bill and since the separation between the said defendant and the said G. they have never lived together under the same roof, and that by reason of the premises aforesaid the said G. has willfully, continuedly and obstinately deserted this defendant for the period of over two years last past.

“7. Wherefore, she prays that she may be divorced from said G. for the cause of willful, continued and obstinate desertion aforesaid, and that she may have such further or other relief in the premises as the nature of the case may require, and she will ever pray," &c.

To this cross-bill the petitioner files a formal replication, denying that the separation was due to either impotence or cruel treatment alleged in the cross-bill; denies the impotence; denies the cruelty and desertion, and alleges that the separation was entirely voluntary on the part of both parties and was begun and ever since continued by mutual agreement (this is admitted by defendant); that he has during such separation and until October, 1902, supported the defendant by regular monthly payments. (This is admitted by defendant.)

For an allegation by way of demurrer petitioner sets up that the separate allegations in the cross-bill of impotence and cruelty are incongruous and render the bill multifarious; and further alleges want of sincerity and good faith in the charge of impotence by reason of the great delay of the defendant to make complaint on that ground.

The cause was brought to a hearing before a vice-chancellor on these issues on the 21st and 22d of October, 1903.

At the opening of the case the petitioner moved to strike out from the answer the allegation of impotence, but the vicechancellor suggested that the matter should be reserved until

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after the issue of adultery should be tried and disposed of, in which suggestion both parties acquiesced.

The evidence on the issue of adultery was then produced with the result that, on Friday, October 23d, 1903, the vice-chancellor pronounced against the defendant, finding her guilty as alleged in the petition, and gave the parties time to present written arguments on the remaining questions.

Mr. Joseph Coult and Mr. Jay Ten Eyck, for the petitioner.

Mr. Warren Dixon and Mr. Peter Bentley, for the defendant.

PITNEY, V. C.

The record, as it now stands, presents questions of some novelty. Cases of impotence, especially in this court, are so rare that the rules governing the action of the courts in such cases are not thoroughly settled.

In England the notion seems to have been entertained formerly that complete impotence rendered the marriage void ab initio, precisely the same as would the existence in life at the time of the marriage of an undivorced spouse of one or the other of the parties; or the fact that the parties were related within the prohibited degrees of consanguinity. This is evidenced by the mode in which suits were framed. The English judicial reports show that suits for a declaration of nullity on account of impotence were framed in this wise: A, falsely called B v. B. This was the form used in suits for nullity for the other two causes mentioned. But the later cases establish clearly the doctrine that contracts of marriage between parties, one of whom is impotent, are voidable merely. The latest case is Turner v. Thompson, L. R. 13 P. & D. (1887) 37.

In this state, by the revision of March 27th, 1874, section 4, it was for the first time declared that

"Divorces from the bond of matrimony may be decreed in case the parties, or either of them, were, at the time of such marriage, physically and incurably impotent, and all marriages in such case shall be invalid from the beginning and absolutely void."

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Thus placing such a marriage upon the same basis as disability on account of a former husband or wife living, or on account of a marriage within the degrees of kinship prohibited by law, except that the issue of marriages within the degrees prohibited by law were not rendered illegitimate.

This classification was clearly illogical in that it made no distinction between a decree for nullity and a decree of divorce. That such a distinction exists was pointed out in the case of Rooney v. Rooney, 54 N. J. Eq. (9 Dick.) 231 (at p. 241).

The legislature, in the revision of the Divorce act of 1902 (P. L. of 1902 p. 502), has changed the classification and has provided for decrees of nullity in the cases of another spouse living at the time of the second marriage and of marriage between parties within the prohibited degrees of consanguinity, and has provided for decrees of divorce from the bond of matrimony in the cases of adultery, desertion and incurable impotence, using the following language:

"In case the parties, or either of them, was at the time of the marriage physically and incurably impotent, or was incapable of consenting thereto, and the marriage has not been subsequently ratified."

This classification is more logical. The two causes for nullity ab initio present the case of an absolute incapacity of one of the parties to contract a marriage, and the validity of such a marriage may be impeached at all times, in all places, by all parties and for all purposes. The only value of a judicial decree of nullity in such cases is that it works an estoppel and settles the question of fact for all time and so dispenses in sub, sequent cases with proof in pais of the disability.

In a case of impotency the parties have the power to contract and the marriage is binding for all purposes unless it is dissolved by a decree of a court at the instance of the party having the right to make the complaint.

Thus it seems to me clear that the widow of an impotent husband would be entitled to dower in his estate in the absence of a decree of dissolution.

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The ground upon which the decree of dissolution is based is not an original incapacity to contract but the entire and complete failure of the consideration of the marriage contract. Hence, the better doctrine is that the contract of marriage is voidable merely and not void ab initio.

The section relating to impotence in the act of 1902 varies from that of 1874 in another important particular. That of 1874, as we have seen, declares the contract "invalid from the beginning and absolutely void." That of 1902 gives the right of divorce with the proviso "and the marriage has not been subsequently ratified."

Thus it appears, that it not only has not declared the marriage void ab initio, but has, as I read the statute, assumed that it may be ratified.

This construction is undoubtedly the true one unless it can be held that the words "has not been subsequently ratified" relates only to the member of the sentence immediately preceding it, viz., "or was incapable of consenting thereto."

Be that as it may, the clear trend of authority, as I have stated, is that the marriage is not void ab initio but merely voidable at the instance of the disappointed party. If that is so, then the correct doctrine is that such party may ratify it.

It is suggested with much force that such ratification may result from a long continued acceptance and enjoyment of the benefits of a merely platonic marriage, so that the disappointed party will not be permitted after such long enjoyment to repudiate the contract.

This subject is elaborately discussed and carefully considered, with a complete citation of authorities, in several English cases.

The first is that of H-. f. c. C- v. C., heard below, in 1860, before Sir Cresswell-Cresswell, Sir Edward Vaughan-Williams and Sir George Bramwell, reported in 1 Swab. & T. 605; 29 L. J. Mat. Cas. 81; 6 Jur. (N. S.) 348; and on appeal, sub nomine, Castleden v. Castleden, 9 H. L. Cas. 186.

There, as here, the petitioning wife had lived for several years with her husband; then, ascertaining his impotence, one of her parents charged him with it, and he refused to live further. with his wife. She then for a few years supported herself and

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then compelled her husband, indirectly, to furnish her with a complete or partial support, which she accepted. She failed in her suit, partly on the ground that she had not resorted to the extreme process of the English court to compel her husband to submit to physical examination, and hence had not furnished the best evidence of his impotence, but mainly, as I think the several judgments plainly show, because she had ratified the marriage contract by long acquiescence and accepting support from her husband.

The next case is that of M-. f. c. B—. v. B—. (1864) before the judge ordinary, Sir Cresswell-Cresswell, reported in 33 L. J. Mat. Cas. 203.

The parties were married in August, 1853, when the petitioning wife was twenty-nine years old; the husband was incurably impotent and the suit was brought ten years later.

The petitioner admitted that she had brought the suit, in part at least, for the purpose of vindicating herself from the rumors or reports which were circulated that the separation, which occurred in that year, was due to her violent temper, and that she was insane and not fit to cohabit as a wife. Her petition was refused, on the ground that it was, to use the expression of the English jurists, "not sincere but due to other motives."

A third case, and one more nearly in point, is that of Reynolds, alias Wilkins, v. Reynolds, 45 L. J. P. 89, also reported in L. R. 1 P. & D. (1876) 405, decided by Sir Robert Phillmore in a considered and written judgment.

There the parties were married in 1849 and the wife brought her suit in 1875. The proofs showed that the husband was impotent by reason of malformation; that they lived together for a year and nine months and then separated, to use the language of the wife, "because he ill-treated me and because we did not live comfortable." They lived separate for nine years, and she then returned to her husband and lived with him for five and a half years, and then separated by reason, as she said, of his ill-treatment and his impotence. They then lived separate until 1875. It was held, after an elaborate citation of authorities, that the petitioner was not entitled to succeed, be

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