Wherefore the plaintiff demands that an account may be taken, under the direction of this court, of what sum or sums of money may be due to the said William Cooper, Jr., and John E. Cooper, for principal and interest, on said mortgage, so foreclosed, as aforesaid, and for permanent improvements made on said premises, and also of the sum or sums that may have accrued from the rents and profits of said premises since said Master's sale, with interest on the same, and generally to ascertain and determine what amount should be paid by the plaintiff, in order to enable him to redeem said premises; and that the said William Cooper, Jr., and John E. Cooper, joint owners of said premises, as aforesaid, and each of them, may be compelled by the judgment of this court to surrender the possession of said premises, and to execute and deliver to the plaintiff, or to such person or persons as he shall designate, a good and sufficient conveyance and assignment in law of all and singular said premises, and their, and each of their right, title and interest therein, upon receiving from plaintiff the said sum or sums of money so due and owing to the said William Cooper, Jr., and John E. Cooper, in order to enable said plaintiff to redeem said premises, as aforesaid, said plaintiff hereby offering to pay the same; and may also be adjudged to transfer and deliver to

benefited, should not be repaid. It may be objected that a foreclosure may not always be a benefit to a redeeming creditor; the same objection might be urged against paying for improvements; there might be cases when the redeeming creditor would prefer the land without the improvements. But there is another answer to this objection. All that is claimed is, that when the court is appealed to to enforce a redemption, the party claiming the right of redemption, shall do what is equitable and right, and reimburse the person, whose interest he discharges, for all expenditure which has enhanced in value the right he acquires by such redemption, to the full amount of such expenditure." Extract from opinion of PRATT, J.

the plaintiff, or to such person so designated, as aforesaid, each and every deed, instrument and evidence of title taken or held by them, or either of them, in their possession, or under their control, relating to or accompanying the conveyance of said premises to them, as aforesaid, or in any manner relating thereto; and if the plaintiff may not be permitted to redeem the said premises, that then the said defendants, or such of them as claim an interest in said premises, may be decreed to pay the said claims of the plaintiffs, and that the plaintiffs may have such other or further relief in the premises, &c., [as in No. 1.]

(12) IN CASES OF DIVORCE.

(No. 61.)

For a limited divorce or separation.

Title of the Cause.

The plaintiff complains of the defendant, and alleges the following facts constituting her cause of action.1

The court has power to decree a separation from bed and board forever, or for a limited time, on the complaint of a married woman in the following cases: 1. Between any husband and wife, inhabitants of this state; 2. Where the marriage was solemnized or took place within this state, and the wife is an actual resident at the time of exhibiting her complaint; 3. Where the marriage took place out of this state, and the parties have become and remained inhabitants of this state, at least one year, and the wife is an actual resident at the time of exhibiting her complaint. (2 R. S., 146, § 48.) If the wife reside in this state, she is to be deemed an inhabitant thereof, although her husband may reside elsewhere. (2 R. S., 147, § 48; see 2 Barb. Ch. Pr., 260.)

That on or about the 16th of July, in the year of our Lord 1850, the plaintiff was duly married to the defendant, at the city of New-York, and that the plaintiff continued to live with the said defendant as his wife until about the 1st day of June, in the year 1857.

That at the time of the said marriage the plaintiff and the said defendant were and now are inhabitants of this state.

That during the time she lived and cohabited with the said defendant, as aforesaid, she had two children by him, to wit: [Insert names and ages.] And that during all that time she conducted herself with propriety, managed the household affairs of her said husband with prudence and economy, and at all times treated her said husband with kindness and forbearance. But that the said defendant, disregarding the solemnity of his marriage vow, and his obligation to treat the plaintiff with kindness and attention, within about a year after their said marriage, commenced a course of unkind, harsh and tyrannical conduct towards her, which continued with very slight intermission until she finally separated from him, about three months since.

That on divers occasions, while the plaintiff lived with the said defendant, as aforesaid, he was guilty of cruel and inhuman treatment of her, and of such conduct towards her as rendered it unsafe and improper for her to cohabit with him. That on or about the 1st day of December, in the year 1856, as the plaintiff was sitting by the fire, the said defendant came home and pulled her chair from under her, threw her violently upon the hearth and dragged her across the floor under circumstances which showed an utter disregard of the plaintiff's health, if not of her life. That on another occasion, [specifying the several acts of cruelty and inhuman treatment.]

That the said defendant is a man of violent passions and of ungovernable temper; and that on many occasions, during the time the plaintiff lived with him, the defendant addressed to her the most opprobrious epithets, and threats of personal violence, and that he repeatedly threatened to take her life. And that in consequence of the cruel and inhuman treatment abovementioned, together with the threats aforesaid, and such brutal and outrageous conduct towards her as rendered it unsafe for her to live with him or to remain within the reach of his violence, she was, on or about the 1st day of June, 1857, obliged to leave the house of the said defendant and go to her friends, since which time she has not dared to return to his said house or to live with him.

That since she so left the house of the said defendant he has refused to provide for her support and maintenance; and that she has been, and is now, entirely dependent upon her own labor and the charity of her friends for her support. That she is now very destitute, and in great want; and that she is indebted to a considerable amount for board and necessary clothing.

That the said defendant, as the plaintiff is informed and believes, is seized and possessed of real and personal estate to the amount of $20,000, and that his annual income is about $2,000.

Wherefore the plaintiff prays that a separation from bed and board forever may be decreed between the said plaintiff and the said defendant, and that he may be compelled, by the judgment of this court, to make a proper and suitable provision for the support and maintenance of the plaintiff and her said children, and that the plaintiff may have the care, custody and education of the children of the said marriage, according to the statute in such cases made and provided; and that the plaintiff may have

such further or other relief as the court shall think proper

to grant, with her costs of action.

JOHN L. FLAGG,

Plaintiffs' Attorney.

(No. 62.)

To dissolve marriage, because of non-age.1

Title of the Cause.

The plaintiff, P. W., by J. W., his guardian, complains of the defendant, and alleges the following facts, constituting his cause of action:

That said J. W. was duly appointed, by order of Hon. IRA HARRIS, one of the Justices of the Supreme Court, bearing date the 2d February, 1855, guardian of said infant, to prosecute this action.2

'No persons are capable of binding themselves in marriage until they have arrived at the age of consent, which, by the common law, is fixed at fourteen in males, and twelve in females. (2 Kent's Com., 78; Co. Litt., 33, and 79, 6. The Revised Statutes originally contained a provision making the marriageable age of the male seventeen and of the female fourteen, but this section was repealed by the act of 1830.) Marriages contracted by parties within the age of consent are not void, however, ab initio, but only from the time their nullity shall be declared by a court of competent authority. (2 R. S., 139, § 3.) Hence a bill is necessary to dissolve a marriage thus contracted. The bill for this purpose may be brought by the parent or guardian, entitled to the custody of the minor, or by the next friend of the minor. (12 R. S., 142, § 20.)

In no case, however, can a marriage of this description be annulled on the application of a party who was of legal age at the time it was contracted, nor when it appears that the parties, after they had attained the age of consent, have for any time freely cohabited as husband and wife. (Id. ib.)

2 It is held in the case of Hulbert v. Young, 13 How., 413, that a complaint which alleges that "A. B., an infant, under the age of