final, and an appeal lies therefrom, notwithstanding a reference to the commissioner for the determination of alimony pending the suit: Shaw v. Shaw, 9 Mich. 164.

9. Common Property.—In the absence of an allegation in a complaint for divorce, that there is common property, the presumption would be that there was none: Kashaw v. Kashaw, 3 Cal. 312. It is proper to declare, for the information of the court, in what the common property consists, its nature and value: Id. The statute which prescribes what shall be common property, as between husband and wife, and how it shall be divided in case of a divorce, is a mere regulation of a right of property, and does not provide a new right of action. A complaint for relief under this statute need not, therefore, comply with the rules governing the forms of pleadings in statutory actions: Gimmy v. Doane, 22 Cal. 635. The failure of a complaint, in an action for a division of common property, to state with sufficient particularity the facts showing the character of the property, is a defect of form which must be objected to by demurrer: Id.

10. Common Property, Disposition of.-In an action for divorce for extreme cruelty, where nothing is said in the pleading about the disposition of the common property, it is error to award it all to one of the parties: Howe v. Howe, 4 Nev. 469; see Civil Code Cal. sec. 146. Where a divorce is granted on the ground of extreme cruelty, or adultery, the guilty party is entitled to receive only so much of the community property as the court may deem just under the facts of the case; and the discretion of the court in dividing the property is subject to revision on appeal: Eslinger v. Eslinger, 47 Cal. 62; see, also, Civil Code, sec. 148. The inference to be derived from sections 146 and 147 of the Civil Code is, that if a divorce is granted on the ground of adultery or extreme cruelty, the injured party is entitled to more than half of the common property: Id. If the decree does not make any disposition of the common property, and no such question is presented by the pleadings, it will not conclude the parties, or either of them, in respect of their claims to such property: De Godey v. De Godey, 39 Id. 157. Any other court than the one rendering the decree of divorce, if otherwise competent, has jurisdiction to determine the disposition of the community property under the statute: Id. Where the decree directs that there shall be a division in definite proportions of the community property, the parties become from the time the judgment is rendered, tenants in common, eo nomine, in the land theretofore held by them in community: 31 Id. 29.

11. Condonation.-Condonation is a conditional forgiveness, and a repetition revives the condoned injury: Burr v. Burr, 10 Paige, 29. And former injuries will be revived by misconduct of a slighter nature than such as to constitute an original ground for a divorce: Burr v. Burr, 10 Paige, 20; see, also, Whispell v. Whispell, 4 Barb. 217. Condonation of acts of actual violence, blows, etc., may be forfeited or set aside by subsequent words of abuse, so that the wife may sue for a divorce on the ground of the blows, although she could not obtain one for the verbal abuse: Farnham v. Farnham, 73 Ill. 497. See on this subject Cal. Civil Code, secs. 111-123.

12. Connivance.-Connivance destroys all claim to remedy by way of divorce: Myers v. Myers, 41 Barb. 114; Cal. Civ. Code, secs. 111, 112.

13. Contempt.-An order to pay alimony may be enforced by an attach

ment for contempt: Lyon v. Lyon, 21 Conn. 185; Wightman v. Wightman, 45 Ill. 167; Grimm v. Grimm, 1 E. D. Smith (N. Y.), 190.

14. Consent.--The court will not proceed on the ground of the consent of the parties to a dissolution of the marriage contract; Williamson v. Williamson, 1 Johns. Ch. 488; see Civil Code, sec. 130.

15. Custody of Child.—A wife suing for divorce on the ground of extreme cruelty is entitled to the custody of their female child of tender years: Price v. Price, 55 N. Y. 656; Wand v. Wand, 14 Cal. 512; see Cal. Civ. Code, sec. 138. There is no error in requiring the husband to maintain a minor child committed to the mother's custody, after a divorce obtained on account of his misconduct: Armstrong v. Armstrong, 35 Ill. 109; see, also, Cal. Civ. Code, sec. 139.

16. Default.—A divorce will not be granted upon the default of the defendant without proof of the facts charged: Cal. Civ. Code, sec. 130. Under section 135 of the New York code fixing a time wherein a defendant, "except in an action for divorce," may be allowed to come in and defend, where service of summons was by publication, it was held: that the courts were not deprived of the power to open a default in a divorce case, where the summons was so served: Brown v. Brown, 58 N. Y. 609. Section 473, Cal. Code C. P., makes no exception as to the power of the court to open a default where the summons was not personally served.

17. Divorce Granted in Another State, when Invalid.-A divorce granted in Indiana, where neither of the parties, in fact, reside at the time, and where there has been no personal service or process within that state upon the defendant, nor authorized appearance for her, is invalid in New York, although the Indiana record recites the residence of the plaintiff in good faith within that state for one year, and shows an appearance for the defendant by one purporting to be an attorney at law in such state: Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 Id. 30.

18. Evidence-Proof.-Adultery may be established by circumstantial evidence: Matchin v. Matchin, 6 Barr. 332; Best on Evidence, sec. 441, and cases there cited; Evans v. Evans, 41 Cal. 103; Blake v. Blake, 70 Ill. 618. Proof of opportunity and equivocal circumstances affords no evidence of adultery in the absence of circumstances tending to show depravity and a guilty purpose: Id. The testimony must convince the judicial mind affirmatively, that actual adultery was committed; since nothing short of the carnal act can lay a foundation for divorce: Hamerton v. Hamerton, 2 Hag. Ec. 13, 16, 19. But a fundamental principle never to be lost sight of in these cases is, that the act need not be proved in time and place: Dailey v. Dailey, Wright (Ohio), 514; Hammerton v. Hammerton, supra. The circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion: See Mulock v. Mulock, 1 Edw. Ch. 14; Day v. Day, 3 Green Ch. 444; Ferguson v. Ferguson, 3 Sandf. 307; 17 Abb. Pr. R. 48; Inskeep v. Inskeep, 5 Iowa, 204; consult also Bishop on Marriage and Divorce, 5th ed., vol 2, sec. 612 et seq. The confessions or admissions of the defendant can be given in evidence: Evans v. Evans, 41 Cal. 143. No divorce, however, can be granted upon the default of the defendant, or upon the uncorroborated statement, admission or testimony of the parties, or upon any statement or finding of fact made by a referee, but the court must, in addition to any statement or finding of the referee, require proof of the facts

alleged, and such proof, if not taken before the court, must be upon written questions and answers: Civil Code, sec. 130. As to evidence of reputation, when and for what purposes admissible, see 36 Mich. 387; 98 Mass. 535.

19. Foreign Divorces.-As to the grounds for granting a divorce, the lex fori governs, and not the law of the place where the marriage was contracted: Standridge v. Standridge, 31 Ga. 223; Thompson v. State, 28 Ala. 12. After a decree of divorce was rendered in Kentucky, in favor of the husband, the wife brought a bill for alimony in Ohio: Held, that a decree for alimony of a court of Ohio, having jurisdiction of the subject-matter, was a valid decree, and enforceable in Kentucky: Rogers v. Rogers, 15 B. Mon. (Ky.) 364. A decree of divorce granted by the courts of a state having jurisdiction over the petitioning party as a citizen of the state, is by article 4, section 1 of the Constitution of the United States, valid in all the states: Ditson v. Ditson, 4 R. I. 87. By statute (R. I.), the jurisdiction of the court depends upon the residence of the petitioner: Id.

20. Improper Familiarities.- In a case of adultery, proof of improper familiarities, not amounting to criminality, was received to characterize the conduct of the party charged; and such proof was allowed of facts which occurred before the time in which the offense was alleged to have been committed: Lockyer v. Lockyer, 1 Edm. 107.

21. Injunction.—In an action for divorce brought by a wife, an injunction was allowed upon the complaint to restrain the defendant from removing his property out of the state: Vermilyea v. Vermilyea, 14 How. Pr. 470; Rose v. Rose, 11 Paige, 169; Lawrie v. Lawrie, 9 Id. 234. And where the husband fraudulently assigned his property, both he and his assignee were enjoined from disposing of it: Questel v. Questel, Wright's Ohio Rep. 492; see, also, De Godey v. De Godey, 39 Cal. 157.

22. Joinder of Counts.-Two or more of the above grounds of divorce may, in California, be united in the same complaint, but they should be separately stated, and demand of judgment should be framed accordingly. But it seems that in New York charges of adultery and of cruel usage, being distinct and independent, and leading to distinct issues and decrees, cannot be united. And the same rule is applied under the code of procedure: McIntosh v. McIntosh, 12 How. Pr. 289.

23. Jurisdiction.-In an action for divorce brought by the wife, the judge of the court in which the action is pending has no jurisdiction to hear and determine in the district court of an adjoining county, of the same district, an application by the wife for an allowance, pendente lite, and for the custody of the children of the marriage: Bennett v. Southard, 35 Cal. 688. It can only be made in the court where the action is pending. In actions for divorce a vinculo, the jurisdiction of the court over the subject-matter of the action, and over the parties, in respect to all matters involved in it, terminates with the entry of final judgment therein, save for the enforcement or correction of the judgment: Kamp v. Kamp, 59 N. Y. 212.

24. Legitimacy.—When a divorce is granted for the adultery of the wife, the legitimacy of the children begotten of her before the commission of the adultery is not affected; but the legitimacy of the other children of the wife may be determined by the court, upon the evidence in the case: Civil Code, sec. 145.

25. Limitation of Action.-A divorce must be denied under the Cal. Civil Code: 1. When the cause is adultery and the action is not commenced within two years after the act is committed, or after its discovery by the injured party; 2. When the cause is conviction of felony, and the action is not commenced within two years after pardon, or expiration of sentence; 3. In all other cases where there is an unreasonable lapse of time before the commencement of the action: Sec. 124. As to presumptions established by lapse of time, and how they may be rebutted, see Id., secs. 125, 126.

26. Maintenance.—Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, by the husband: Civil Code, sec. 136. See generally upon the subject of maintenance or support, how secured and against whom, and what property, enforced: Id., secs. 136 to 148.

27. Marriage, Averment of. The averment of marriage, if not denied, need not be proven: Fox v. Fox, 25 Cal. 587. In suit for divorce on the ground of adultery, the marriage, where it is denied in the answer, must be proved. It will not be inferred from matrimonial cohabitation with the reputation of being married: Case v. Case, 17 Cal. 598.

28. Marriage, when Void.-Though a marriage be ipso facto void, as where a party was insane, yet it is proper that it should be declared void by a judicial tribunal: 1 Black. Com. 439; 1 Collins on Lun. 554; Wightman v. Wightman, 4 Johns. Ch. 343; Perry v. Perry, 2 Paige, 501.

29. Name of Adulterer.-The name of the person with whom defendant committed adultery should be given, if known, though, to avoid scandal, it has been held the name need not be given if sufficient certainty can otherwise be had: Farr v. Farr, 34 Miss. 597.

30. New Trial. The rule that where there is a conflict in the evidence the judgment will not be disturbed, is applied in divorce cases: Matthai v. Matthai, 49 Cal. 90.

31. Parties. The wife, in a suit for divorce, may make a party of any one claiming interest in the common property: Kashaw v. Kashaw, 3 Cal. 312. In New Hampshire, a bill for divorce cannot be prosecuted by a third person where libellant dies before entry of the bill: Kimball v. Kimball, 44 N. H. 122.

32. Residence of Six Months.-The plaintiff must aver and provethough it is not denied that he or she has been a bona fide resident of this State six months before making the application for a divorce: Bennett v. Bennett, 28 Cal. 599. Without such proof, the court has no jurisdiction to grant a divorce: Id. A man's residence is that place where his family dwells, or which he makes the chief seat of his affairs and interests: Matter of Hawley, 1 Daly, 531. By sec. 129 Cal. Civil Code, it is provided that in actions for divorce the presumption of law that the domicile of the husband is the domi cile of the wife does not apply. After separation each may have a separate domicile, depending upon actual residence. To constitute a residence, within the legal meaning of the term, there must be a settled fixed abode, an intention to remain permanently, at least for a time, for business or other purposes: Frost v. Brisban, 19 Wend. 11; Matter of Hale, 2 N. Y. Leg. Obs. 139. In New Hampshire, an offense committed when both parties were out of the

jurisdiction of the court is not a ground for divorce: Frost v. Frost, 17 N. H.

251.

33. Recrimination. The doctrine of recrimination, or compensatio criminum, is applicable in suits for divorce, and the several offenses which, by the statute, constitute grounds for divorce, are pleadable in bar to such suits, the one to the other, within the principles of the doctrine: Conant v. Conant, 10 Cal. 249. To be an absolute bar, the conduct of the plaintiff must be such as to constitute a proper basis for judicial decree against her, had suit been instituted by the defendant: Id. Civil Code, secs. 122, 123.

34. Second Action.-A plaintiff may bring a second action for divorce for subsequent acts of adultery. The practice of resorting to supplemental complaint is not compulsory: Cordier v. Cordier, 26 How. Pr. 187.

35. Verdict of Jury.—The statute of divorce which authorizes a decree to be "rendered upon full and satisfactory evidence," requires the evidence to be satisfactory to the judge as well as the jury; and where the verdict was in favor of the plaintiff, but the judgment in favor of the defendant, it will be presumed, in the absence of any statement of facts, that the judge correctly disregarded the verdict: Haygood v. Haygood, 25 Texas, 576. The verdict of a jury in a chancery case is only advisory to the chancellor or this court: Still v. Saunders, 8 Cal. 281; see, also, Goode v. Smith, 13 Id. 84; Duff v. Fisher, 15 Id. 376; Wingate v. Ferris, 50 Id. 105.

the said de

The plaintiff complains, and alleges: I. [Allege marriage as in previous form.] II. [Allege residence as in previous form.] III. That on or about the year. fendant, disregarding the solemnity of his marriage vow, willfully and without cause deserted and abandoned the plaintiff, and ever since has and still continues so to willfully, and without cause, desert and abandon said plaintiff, and to live separate and apart from her, without any sufficient cause or any reason, and against her will, and without her consent.

[Demand of Judgment.]

NOTE.-Other allegations in regard to custody of children, support and division of common property, according to the facts of the case, can be added, according to the preceding form.

36. Desertion.-Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert: Cal. Civ. Code, sec. 95. Persistent refusal to have matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion: Id. sec. 96. Where