DIVORCES. 1. Different Special Contents. 1. Of divorces-their different kinds, &c. II. Our statute respecting divorces. III. In cases of adultery, injured parties to apply to the Chan cellor. IV. Proceedings thereon. V. Answer without oath. VI. If bill be admitted or taken pro confesso, and proceedings thereon. VII. If adultery proved, a divorce a vinculo matrimonii awarded. IX. Injured party may marry again. X. If the wife is complainant she is entiled to a support for her and her children. XI. What separate estate deemed the wife's after such divorce. XII. If husband be complainant, he to possess the wife's estate. XIII. Adultery of the wife forfeits her dower. XIV. When the wife shall be deemed a resident of the state. XV. Divorces a mensa et thoro when and where granted, on the complaint of the wife. XVI. Causes of complaint. XVII. Husband compelled to answer complaint of his wife. XX. Complainant may be required to give security for costs. XXIII. Decisions in cases of divorces. XXIV. Form of the bill. XXV. do. of the answer. XXVI. do. of the replication. XXVII. Reference to a master-or feigned issue. XXVIII. Final decree. THERE are two kinds of Divorces known to our kinds of divor- Law :-The one total, the other partial. The one a vinculo matrimonii, the other a mensa et thoro. The total divorce, a vinculo matrimonii, in England, must be for some canonical cause of impediment, and existing before the marriage, as in the case of consanguinity; not for any supervenient cause, or arising afterwards, as may be the case in affinity or corporal imbecility, for, in cases of total divorce, the marriage is declared null, as having been absolutely unlawfulab initio; and the parties are therefore separated pro salute animarum; for which reason no divorce can be granted except during the life of the parties. The issue of such marriage as is thus dissolved are bastards. (a) In England divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament. Divorces a mensa et thoro are when the marriage is just and lawful, ab initio, and therefore the law is tender of dissolving it; but for some supervenient cause, it becomes improper or impossible for the parties to live together; as in case of intolerable ill temper, or adultery in either of the parties. In cases of a divorce a mensa et thoro, the law allows alimony to the wife, which is that allowance which is made to a woman for her support out of the husband's estate, being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. (b) With us, however, divorces as well a vinculo matrimonii as a mensa et thoro are granted by the Chancellor, and the facts on which the application is founded, are specially referred to a Master, or tried by a jury in a feigned issue, to be passed upon and established. The powers of the Chancellor in relation to divorces, (a) Black. Com, 466-7. Co. Litt. 235. (6) Black. Com. 467–8. 2. Statute vorces. are derived from an act of the Legislature of the 13th of April, 1813,(c) which provides that it shall and may concerning di- be lawful, in all cases of adultery already committed or hereafter to be committed, by a husband or a wife, 3. In cases of they being inhabitants of this state at the time of comedparty may mitting such adultery, or when the marriage shall have cellor for di- been solemnized or taken place within this state, and adultery, injur vorce. to Chan. the party injured by such adultery shall be an actual resident in this state, at the time of the adultery being committed, and at the time ofexhibiting the bill,for such injured party to exhibit a bill in the Court of Chancery of this state, against the adulterer or adultress, setting forth the adultery complained of, and praying for a divorce from the defendant; and for such further and other relief as he or she may think himself or herself entitled to under and by virtue of this act, or praying for a divorce only, as the complainant may think fit; and upon the exhibition of such bill the complainant shall be entitled to the usual process to compel the defendant to appear to and answer the said bill. And such proceedings may be had on the said bill as acings thereon. cording to law and the course and practice of said court in other cases will entitle the complainant to have his or her bill to be taken pro confesso against the defendant, and the same may be taken pro confesso accordingly. 4. Proceed 5. Answer to be without oath. That if the defendant shall appear and answer the said bill, he or she may answer the same without oath or affirmation; if the defendant shall by answering deny the adultery charged in the bill, the court of Chancery shall thereupon direct a feigned issue or issues to be made up for the trial by jury of the fact or (c) 2 N. R. L. 197, &e. facts of adultery charged by the complainant and denied by the defendant, and shall make the necessary orders for the trial of the said issue or issues, at some circuit court or sittings, to be held by a justice of the supreme court of this state, and may direct the same to be tried by a special or foreign jury, if deemed necessary; and in case the same shall be directed to be tried by a special jury, the chancellor shall have power to make the necessary orders for procuring a list of the jurors from the county from which the jury is to be taken, and for striking the same; and the chancellor may award a new and further trial of the said issue or issues, if he deems the same necessary to do justice between the parties. That if the defendant shall by answer admit the adultery charged against him or her in the bill, or if the bill shall be taken pro confesso against the defendant, it shall in either case be the duty of the court of chancery, before any decree dissolving the marriage shall be pronounced, to refer the same to a Master in Chancery, with directions to take the proof of the adultery charged in the bill, and to report the same to the court with his opinion thereon, and the cause shall be heard on such proofs and report previous to a final decree therein. 6. If bill be ken pro confesso, and proceedings there, admitted, or ta. upon. be proved, a di. lo matrimonii That if it shall satisfactorily appear to the court of 7.If adultery Chancery, either by the trial of such feigned issue or vore a vincu issues, or by the proofs taken and reported by a mas- awarded. ter, as aforesaid, that the defendant has been guilty of the adultery charged in the bill, it shall be lawful for the said court to decree that the marriage between the 8. The legiparties shall be dissolved, and each party freed from timacy of the the obligations thereof, but such dissolution of the fected. marriage shall not in any wise affect the legitimacy of children not af 9. Injured the children thereof, and it shall be lawful for the party may mar. not the adulter er. ry again, but complainant, after the dissolution of the marriage, to marry again as though the defendant was actually dead. But it shall not be lawful for the defendant who may be convicted of adultery, to marry again until the complainant shall be actually dead. 10. If the wife be complainant to a support for dren. That if a wife is complainant in such suit, wherein she is entitled a decree dissolving the marriage as aforesaid shall be her and chil-pronounced, it shall be lawful for the court of Chancery to make a further decree or order against the defendant, compelling him to provide for the maintenance of the children of the marriage, if any there shall be, and to provide a suitable allowance to the complainant for her support, as to the said court shall seem reasonable and just, having a regard to the circumstances of the parties respectively; and to order such defendant to give reasonable security for such maintenance and allowance, and upon his neglect or refusal to give such security as shall be required of him, or upon default of him and his security to provide such maintenance and allowance, to sequester his personal estate, and the rents and profits of his real estate, and appoint a receiver thereof, and cause such personal estate, and the rents and profits of such real estate, to be applied towards such maintenance and allowance, or to such maintenance or allowance as to the said court shall from time to time appear just and reasonable. 11. What separate estate deemed the wife's after such divorce. That if a wife is complainant in any suit wherein a decree dissolving the marriage as aforesaid shall be pronounced, and she shall at the time of pronouncing such decree be owner of any lands, tenements, or hereditaments, or have in her possession any goods or chattels, or choses in action, which were left with her by her husband, which she may have acquired by her own |