6.

Court), on suit brought, to declare void the marriage contract: 1. If either of the parties, at the time of the marriage, had not abtained the age of legal consent. 2. If the former husband or wife was living and the marriage in force. 3. If one of the parties was an idiot or lunatic. 4. If the consent of one of the c.c.8 2. parties was obtained by force or fraud. 5. If one of the parties was physically incapable of entering into the marriage state. All issues upon the legality of a marriage, except where it is sought to be annulled on the ground of physical incapacity of one of the parties, are to be tried by a jury upon a feigned issue. A marriage shall not be annulled for the first of the above causes on the application of the party of full age at the time of the marriage, or if the parties, after both have attained the age of consent, have voluntarily cohabited. It may be annulled for the second cause on the application of either party during the lifeof the other; but if contracted in good faith, the issue shall be entitled to inherit as legitimate children. It may be annulled for the third cause on the application of a relative or next friend of the idiot or lunatic. But cohabitation after the lunacy has ceased will bar the divorce; and the children of any marriage annulled on such ground succeed as legitimate children. It may be annulled for the fourth cause, during the life of the parties, on the application of the party whose consent was unduly obtained, provided there was no subsequent voluntary cohabitation. The custody of the children is to be given to the innocent, and provision made for them out of the estate of the guilty, party. A marriage is to be annulled for the last cause above-mentioned only on the application of the innocent party, and the suit must be brought within two years after the marriage. CC. 82.83.

3. As the law now stands in New York, in what three cases only, can a bill of divorce for adultery be obtained?-98.

1. If the married parties are inhabitants of the State at the time of the commission of the adultery. 2. If the marriage took place in the State, and the party injured be an actual resident at the time of the adultery committed, and at the time of filing the bill. 3. If the adultery was committed in the State, and the injured party, at the time of filing the bill, be an actual inhabitant of the State.

4. What is the punishment, in New York, of a defendant if guilty ?-99.

party.

Disability from re-marrying during the life of the other

5. What are the provisions respecting the legitimacy of children in such cases?—99, 100.

If the wife be the complainant, the legitimacy of any children of the marriage, born or begotten of her before the filing of the bill, is not to be affected by the decree; and if the husband be the complainant, the legitimacy of the children, born or begotten before the commission of the offense charged, is not to be affected by the decree. The statute further provides, that if the wife be the complainant, the court is to make a suitable allowance, in sound discretion, out of the defendant's property, for the maintenance of her and her children, and compel the defendant to abide the decree. The court is also to give to the wife, being the injured party, the absolute enjoyment of any real estate belonging to her, or of any personal property derived by title through her, or acquired by her industry. If, on the other hand, the husband be the complainant, then he is entitled to retain the same interest in the wife's estate, which he would have if the marriage had continued; and he is also entitled to her personal estate and choses in action which she possessed at the time of the divorce, equally as if the marriage had continued; and the wife loses her title to dower, and to a distributive share of her husband's personal estate.

6. In what cases, in the State of New York, may the court refuse to decree a divorce, though the fact of adultery be established ?— 101, 102.

In the four following: 1. If the offense was committed by the procurement or with the connivance of the complainant. 2. If it has been forgiven, and the forgiveness proved by express proof, or by the voluntary cohabitation of the parties with knowledge of the fact. 3. Where the suit has not been brought within five years after the adultery. 4. Or where the complainant has been guilty of the same offense. All these exceptions, except the positive limitation as to time, were settled and acknowledged principles of general jurisprudence applicable to the subject.

The policy of New York has been against divorces from the marriage contract, except for adultery

7. How about the law of divorce in some of the other States of the Union ?-Notes to page 96, et seq.

The courts in Massachusetts, Delaware, Ohio, North Carolina, Alabama, Illinois, and probably in other States, are authorized by statute to grant divorces causa impotentiæ. In Massachusetts, by the Revised Statutes of 1836, marriages prohibited on account of consanguinity or affinity, or when the former husband or wife is alive, or when either party was at the time insane or an idiot, or between a white person and a negro, Indian or mulatto, are absolutely void without any legal process. So of marriages under the age of consent, or when either party is guilty of adultery or sentenced to the State prison. In Vermont, marriages prohibited on account of consanguinity or affinity, or on account of a former husband or wife living, are absolutely void without any legal process. The other provisions of the law of divorce in that State are very similar to those in New York, and in neither of these States can a marriage be annulled for adultery solely on the declarations or confessions of the parties. In most of the States divorces a vinculo, or from bed and board, are granted for intolerable ill-usage, or willful desertion, or unheard-of-absence, or habitual drunkenness. In some of the States, the Legislatures frequently pass special acts granting divorces, while in others, such legislative divorces are prohibited by the Constitution, and jurisdiction of the matter confined exclusively to the judiciary. And in nearly all the States parties are required to have resided in the State for a greater or less time before they can apply in such State for divorce.

8. What is the effect of a foreign divorce, or how far is a divorce in one State valid in another?-107-118.

The question has never been judicially raised and determined in the United States, and it has generally been considered that the State governments have complete control and discretion in the case. In Harding v. Allen, it was adjudged by the Supreme Judicial Court in Maine, that a decree of divorce pro

*9 Greenleaf's R., 140.

nounced according to the law of one jurisdiction, and the new relations thereupon formed, ought to be recognized, in the absence of all fraud, as operative and binding everywhere, so far as related to the dissolution of marriage, though not as to other parts of the decree, such as an order for the payment of money by the husband. This is deemed a correct and valuable decision in this country, though contrary to the English rule—which is, that a foreign divorce a vinculo, from an English marriage, between parties domiciled in England at the time of such marriage, is null. The point, however, with us must still be considered unsettled.

9. What is the effect of a foreign judgment ?-118-121.

In cases not governed by the Constitution and laws of the United States, the doctrine of the English law on that subject is generally the law of this country: and there a distinction is taken between a suit brought to enforce a foreign judgment, and a plea of a foreign judgment in bar of a fresh suit for the same cause. No sovereign is obliged to execute, within his dominion, a sentence rendered out of it; and if execution be sought by suit upon the judgment, or otherwise, he is at liberty, in his courts of justice, to examine into the merits of such judgment; for the effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty. In the case of a suit to enforce a foreign judgment, the rule is, that the foreign judgment is to be received, in the first instance, as prima facie evidence of the debt, and it lies on the defendant to impeach the justice of it, or show that it was irregalarly and unduly obtained. But if the foreign judgment has been pronounced by a court possessed of competent jurisdiction over the cause and the parties, and carried into effect, and the losing party institutes a new suit upon the same matter, the plea of the former judgment is an absolute bar, provided the subject and the parties, and the grounds of judgment be the same. It is a res judicata, which is received as evidence of truth; and exceptio rei judicatæ, as the plea is termed in the civil law, is final. This is a principle of general jurisprudence, founded on public convenience, and sanctioned by the usage and courtesy of nations.

the

10. What is the effect of a suit pending before another competent tribunal?-122-125.

A lis pendens before the tribunals of another jurisdiction has, in proceedings in rem, been held to be a good plea in abatement of a suit. Thus, where a creditor of A, a bankrupt, had bona fide and by regular process attached in another State a debt due to A and in the hands of B, it has been held that the assignees of the bankrupt could not, by a subsequent suit, recover the debt of B. The pendency of the foreign attachment is a good plea in abatement of the suit. In such a case the equity of the maxim, qui prior est tempore potior est jure, forcibly applies. But, generally, a personal arrest and holding to bail in a foreign country can not be pleaded in abatement; and it is no obstacle to a new arrest and holding to bail for the same cause in the English courts, and they will not take judicial notice of any arrest in a foreign country, or in their own plantations; and the same rule of law has been declared in this country.

11. When may a divorce a mensa et thoro be granted?-125128, notes.

The statute of New York authorizes the court to grant qual ified divorces a mensa et thoro, founded on the complaint of the wife, of cruel and inhuman treatment, or such conduct as renders it unsafe and improper for her to cohabit with her husband; or for willful desertion of her, and refusal or neglect to provide for her. The court may grant the decree of separation for ever, or for a limited time, in its discretion, and the same court may revoke the decree at any time, under such regulations as it thinks proper, upon the joint application of the parties, and upon their producing satisfactory evidence of their reconciliation. These qualified divorces are allowed by the laws of almost all countries, and it is assumed that they prevail generally in the United States, in cases of extreme cruelty, though they are unknown in some of them, as, for instance, in New Hampshire, Connecticut, Ohio, ndiana and South Carolina. In Louisiana, the divorce a mensa leads to a divorce a vinculo, if the parties be not reconciled in two years. In Massachusetts, those divorces are allowed for extreme cruelty in either party, and in favor of the wife when the husband shall utterly desert her, or refuse or neglect to