« ΠροηγούμενηΣυνέχεια »
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,
To dissolve marriage, because of non-age.'
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.”
? 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. 8., 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.)
? It is held in the case of Hulbert o. Young, 13 How., 413, that a complaint which alleges that “A. B., an infant, under the age of
That the plaintiff, P. W., is an infant, under the age of twenty-one years, to wit, of the age of about fifteen years. That on or about the 20th day of June, in the year
the plaintiff intermarried with one M. H. (now M. W.), at the city of Albany, and that at the time of the said marriage the plaintiff and the said M. W. were, and now are, inhabitants of the state.
That, at the time of his said marriage, the plaintiff was an infant, under the age of legal consent, to wit, of the age of about thirteen years, and was, therefore, incapable of contracting marriage, and the said M. W. was about the age of fifteen years.
That, for a short time after the said marriage, the plaintiff cohabited with his said wife, but they have not cohabited as husband and wife for any time, or in any manner, since the plaintiff attained the age of consent, that is to say, the age of fourteen, which was on the 11th day of September last.
That the plaintiff is desirous of having the said marriage between him and the said M. W. dissolved, and declared null and void, by a decree of this court.
Wherefore the plaintiff demands judgment that the said marriage between the plaintiff and the said M. W. · may be dissolved, and declared null and void, according to the statute in such case made and provided, and that the plaintiff may have such further relief, or such other relief in the premises, as shall be equitable, and the circumstances of the case may require.
twenty-one years, plaintiff, by C. D., his guardian, complains,” &c., is not sufficient, because it does not allege how he is guardian, whether specially appointed by the court, or otherwise. This is a traversable fact, and must be so stated that it may be so traversed. A contrary practice, however, it is believed, has usually been followed. (See note, ante, 46.)
To dissolve marriage because of lunacy.'
Title of the Cause.
The plaintiff complains of the defendant, and alleges the following facts, constituting her cause of action :
That on or about the 1st day of May, in the year 1850, the plaintiff was duly married to the defendant, at Buffalo, in the county of Erie; and that, at the time of the said marriage, the plaintiff and the said defendant were, and ever since have been and now are, inhabitants of this state.
That for several years previous to the said marriage of the plaintiff, and at the time the said marriage took place, she was a lunatic, and of unsound mind, and incapable of contracting matrimony. That, at the time the said marriage took place, it was well known to the said defendant that the plaintiff was a lunatic, and that she was incapable to consent to such marriage. That the said defendant had been a near neighbour of the plaintiff for several years, and had notice and was well informed of her mental incapacity.
That the plaintiff is now perfectly recovered of her lunacy, aforesaid, and restored to her right mind, memory and understanding, and has been so for about six months
That the plaintiff, since her restoration to a sound state
1 The lunatic may apply, after restoration to reason, to have the marriage annulled, but no sentence of nullity will be pronounced if the parties, after the lunatic was restored to reason, have freely cohabited as husband and wife. (2 R. S., 143, § 26; 2 Barb. Ch. Pr., 247.)