« ΠροηγούμενηΣυνέχεια »
of mind, as aforesaid, has not cohabited with the said defendant; that she is advised that the marriage had and solemnized between her and the said defendant aforesaid is, under the circumstances attending the same, invalid and null, but that it is necessary the same should be dissolved and declared null and void by a decree of this court.
Wherefore the plaintiff demands judgment, that the said marriage between her and the said defendant may be dissolved and declared null and void by ă judgment of this court, according to the statute in such case made and provided ; and that the plaintiff may have such further relief, &c. [as in No. 1.]
Bill to dissolve marriage, because of adultery."
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 25th day of December, in the year 1847, the plaintiff was duly married to the defendant, at the city of Boston, in the State of Massachusetts, and that the plaintiff continued to live with the said defendant, as his wife, until about the 1st day of March last; and
? It would be improper to unite in the same complaint an application for divorce, on the ground of adultery, with an action for & limited divorce, on the ground of cruel and inhuman treatment, as they are distinct and separate grounds of relief, founded on utterly dissimilar transactions, requiring different lines of testimony and a totally different array of evidence, both in the attack and defence, and leading to dissimilar judgments. (12 How. Pr. R., 289.)
that a few months after said marriage they moved to the city of New-York; and that for the last ten years they have been, and at the time and times of the commissions of the several acts of adultery, hereinafter set forth, were, and now are, inhabitants of this state.
That the plaintiff is informed and believes, and charges the truth to be, that the said defendant, disregarding the solemnity of the marriage vow, hath, since the marriage of the plaintiff with him, as aforesaid, committed adultery at divers times and places, and especially, that the said defendant A., on some day or days during the year 1855, but on what particular day or days the plaintiff is ignorant, in the city of New York, did, at the house of one -, in-street, commit adultery and have carnal connection with one ; and that the said defendant, at various other times during the said year 1855, committed adultery and had carnal connection with the said at certain other places in said city, to plaintiff unknown.
1 A divorce may be decreed and marriages dissolved by this court, whenever adultery has been committed by husband or wife, in the following cases: 1. Where both husband and wife were inhabitants of this state at the time of the commission of the offence ; 2. Where the marriage was solemnized or took place within this state, and the injured party at the time of the commission of the offence, and at the time of exhibiting the bill of complaint, is an actual inhabitant of this state; 3. Where the offence was committed in this state, and the injured party, at the time of exhibiting the bill of complaint, is an actual inhabitant of this state. ( 2 R. S., 144, § 35.)
If the bill is filed by the wife, and she resides in this state, she is to be deemed an inhabitant thereof, although the husband resides elsewhere. ( 2 R. S., 147, $55.)
2 The adultery must be specifically charged, with such certainty as to time, place and person, that the defendant may be able to meet the fact at the trial; otherwise the court will not award a feigned issue. (2 Barb. Ch. Pr., 256 ; Codd v. Codd, 2 John. Ch. R., 224 ; That the plaintiff was wholly and entirely ignorant of the commission of the aforesaid acts of adultery by the said defendant, or either of them, until about the 1st day of September, last. That five years have not elapsed since she discovered the fact that such adultery had been committed by this defendant; that she has not voluntarily cohabited with him since the discovery thereof; and that such adultery was committed by him, without her consent, connivance, privity or procurement.
The plaintiff further shows, that she is informed and believes that the said defendant is now, and has for some time past been, living with one A. B., in open and notorious adultery, at said city of New-York, and that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff. And the plaintiff alleges that such adulterous intercourse, between the said defendant and the said A. B., was begun and is continued without the consent, connivance, privity or procurement of this plaintiff.
That the plaintiff has no property of her own, but that the defendant is seized and possessed of real and personal estate, to the amount of $50,000, and that his annual income is at least $5,000.
Wherefore the plaintiff demands judgment, that the marriage between her and the said defendant may be dissolved, and a divorce decreed, according to the statute in such case made and provided; and that the defendant may be compelled, by the judgment of this court, to make a proper and suitable provision for the support and
Wood v. Wood, 2 Paige, 109.) The name of the person with whom the adultery was committed must be stated, if known; if not known to the complainant, that fact should be averred, and the time, place and circumstances of the adultery should be stated.
See Supreme Court Rule 64.
maintenance of the plaintiff; and that the plaintiff may have such further relief, &c., [ as in No. 1.]
Add the usual affidavit, see Rule 64.
. (13.) MISCELLANEOUS Cases.
By widow against heir for dower, asking a discovery of the
real estate and an account of the rents and profits.
Title of the Cause.
The abovenamed plaintiff complains against the abovenamed defendant, and alleges the following facts, constituting her cause of action :
That on the day of at duly married to J. B. W., and cohabited with him, as his lawful wife, up to the time of his death; that said J. B. W. died on the
leaving the plaintiff his widow, and the defendant his sole heir-at-law; that, at the time of his decease, the said J. B. W. was seized, in fee simple, of a certain farm of land, situate, &c., [describing it), and of divers other real estate, the quantity and situation of which is not accurately known to the plaintiff; and that upon, or soon after, the death of said J. B. W., the defendant, as heir-at-law, entered upon and took possession thereof, and of all the title deeds, evidences and writings relative thereto, and has ever since received the rents, issues and profits thereof.
And the said plaintiff further alleges, that she has frequently, by herself and otherwise, applied to the said defendant and requested him to discover the said freehold estates of which the said J. B. W. died seized, and his title thereto, and to account for and pay to the plaintiff one-third part of the rents and profits of such freehold, and to assign such one-third part to the plaintiff, and let her into the absolute possession thereof, but the said defendant refused and still refuses to comply with such requests or any part thereof.
Wherefore the plaintiff demands judgment against the defendant, that he may be adjudged to discover and set forth a full description of such freehold estates, with all the circumstances and particulars thereof, and that an account may be taken, by and under the judgment of this court, of the rents and profits of such freehold estates, which have accrued since the death of said J. B. W., and have or might have been received by the defendant, and that one-third part thereof, arising from the said freehold estates, may be adjudged to be paid to her by said defendant, and that one-third part of said freehold estate may be assigned and set over to her by said defendant for her dower, and the said defendant may be ordered to produce all title deeds, evidences and writings relative to the said freehold estates, in order to effectuate the purposes aforesaid; or for such other, &c., [as in No. 1.]