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.)

(No. 63.)

To dissolve marriage because of lunacy.1

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 last past.

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.)

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 a 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.]

(No. 64.)

Bill to dissolve marriage, because of adultery.1

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

1 It would be improper to unite in the same complaint an application for divorce, on the ground of adultery, with an action for a 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.1

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 car

nal 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.2

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.1

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.

1 See Supreme Court Rule 64.