industry, or which may have been given to her by devise or otherwise, or may have come to her, or to which she may be entitled by the decease of any relative intestate, she shall be entitled to the absolute enjoyment of such real estate, and to the entire dominion and control of such goods and chattels, and choses in action against the defendant in the suit, and may sue for and recover the same in her own name. be complainant the wife's es were not di That if a husband is complainant in any such suit, 12. If husband wherein a decree dissolving the marriage as aforesaid he is to possess shall be pronounced, and the defendant shall at the tate as if he time of pronouncing such decree, be the owner of any vorced. lands, tenements or hereditaments in her own right, the complainant's right to and interest therein, and to the rents and profits thereof, shall not be taken away or impaired by such dissolution of the marriage, but the same shall remain to him as though the marriage had continued; and he shall also be entitled to such personal estate and choses in action as may belong to or be in the defendant's possession, at the time such decree shall be pronounced, in like manner as though the marriage had continued, and may sue for and recover the same in his own name. 13. Adultery in works a forfeitnor and of any ure of dower, That a wife, being a defendant, and convicted of order adultery as aforesaid, shall not be entitled to dower the complainant's real estate, or any part thereof, to any distributive share in his personal estate on dying intestate. his share of the personal estate of husband on his deceasc. 14. What shail entitle a dence in this That whenever a feme covert shall exhibit a bill against her husband by virtue of this act, she shall not wife to a resi be deemed a resident or an inhabitant of any other state under state or country, merely because her husband shall reside or inhabit in such other state or country, but her this act. 15. Divorce a mensa et Thoro, when and how grant ed on com plaint of wife. being an inhabitant of this state shall be determined by the fact of her abiding in this state. That it shall and may be lawful for any feme covert, she and her husband being inhabitants of this state, or where the marriage shall have been solemnized or taken place within this state, and she being an actual resident therein at the time of exhibiting a bill as hereafter mentioned, to exhibit a bill in the court of Chancery against her husband, complaining of cruel and inhuman treatment of her by him, or such conduct on the 16. Causes of part of the husband towards his wife as may render it unsafe and improper for her to cohabit with him, and be under his dominion and control, or that he has abandoned her, and refuses or neglects to provide for her, specifying particularly the nature and circumstances on which she relies and seeks relief, with the time or times when, and place or places where, with reasonable certainty, and praying for such relief as she 17. Husband may think herself entitled to: to which bill the huscompelled to band may be compelled to appear and answer accord complaint. answer com plaint. 18. Causes of complaint for &c. being pro ing to the course of the court of Chancery, or the bill may be taken pro confesso against him, as is usual in other cases in that court. That in case it shall appear to the court of Chanill treatment, cery, by the answer and confession of the defendant, or ved, &e Chan by the bill being taken pro confesso against him, or by Cree an abse proof taken in the cause in the usual manner, that the lute, limited or defendant is guilty of such cruel and inhuman treatvorce a mensa ment towards the complainant, or such conduct to cellor may de temporary di et thoro. wards her as renders it unsafe and improper for her to cohabit with him, and be under his dominion and control, or that he has abandoned her, and refuses and neglects to provide for her, it shall and may be lawful for the court of Chancery to decree a separation from bed and board for ever thereafter, or for a limited time, as shall seem just and reasonable, or to make such other decree in the premises as the nature and circumstances of the case require; and whether the court shall decree a separation from bed and board, or not, to make such orders and decree for the suitable support and maintenance of the wife and her children, or any of them by the husband, or out of his property, as the nature of the case and the circumstances of the parties render suitable and proper in the opinion of the Chancellor, and to enforce such orders and decrees by sequestering the rents and profits of the real estate of the husband, (if any he has,) and his personal estate and choses in action, and by appointing a receiver thereof, and causing such rents and profits and personal estate and choses in action to be applied accordingly, or by such other lawful ways and means as is usual and according to the course and practice of the said court, and as to the Chancellor shall seem meet, and agreeable to equity and good conscience. 19. And to support of wife take order for and children. be required That the defendant, in any such suit as last afore- 20. Security said, may require from the complainant security for for costs may costs before he shall be compelled to answer the bill, from complainand the court, on application for the purpose, may order security to be given accordingly. on complaint of in his defence. That the defendant, in any such suit as last aforesaid, 21. Husband may insist in his defence, and be permitted to prove wife may show the ill conduct of the complainant as a justifiable cause her ill conduct for the conduct on his part complained of, and on making out such ill conduct to the satisfaction of the court, he may be dismissed with or without costs, in the discretion of the court. 22. Costs may be de That in any suit brought under and by virtue of this act, the court may decree costs against either party creed against and award execution for the same, or in case any estate either party. and how collected. 23. Decisions. shall be sequestered, or in the power of the court, or in the hands of a receiver, it may order costs to be paid out of the property so sequestered, or in the power of the court, or in the hands of a receiver, at discretion, and according to right and justice. In modification of the above act in relation to cases of adultery, it is provided by the 84th rule of court, that in cases of adultery, common orders, which in other cases would be orders of course, may be entered of course in this action, provided however, that no order by consent, or for a reference, or feigned issue, or on coming in of a report or verdict, shall be deemed an order of course; and on coming in of the master's report, or the verdict in cases of adultery, the cause shall be regularly set down for hearing at term preparatory to a final decree; and if an issue shall be awarded, to satisfy this court whether such adultery has been committed, and the verdict on such issue affirms the adultery, the complainant shall not be entitled to an order on the return of the postea, unless the judge before whom such issue shall have been tried, shall certify that the verdict was supported by proof, without or in addition to the confessions of the party charged.(a) Where a bill for a divorce on the ground of adultery is taken pro confesso, or the defendant in his answer admits the adultery charged, and a reference is made to the master under the 3d section of the act concerning divorces, (2 Vol. N. R. Laws, 197, 198,) to take the proof of the adultery and to report thereon, &c. by the proof to be taken by the master, is meant legal proof generally; and he may therefore receive (a) See also 59th rule. proof of the confession of the defendant, which must, however, be connected with and supported by other proofs before the court will decree a divorce a vinculo matrimonii.(b) By the 51st rule of the court, June, 1806, evidence of the confession of the defendant was not admissible at all, on a feigned issue awarded to by the fact of adultery; the court afterwards doubted whether this rule had not gone too far in rejecting this species of proof altogether,(c) and in June, 1815, repealed the 51st rule, and substituted the 84th rule, which permits such confessions to be received when connected with other proof. To give the court jurisdiction to decree a divorce a vinculo matrimonii on the ground of adultery, when the marriage was solemnized abroad, it must clearly and distinctly appear from the bill, that both parties were inhabitants of the state at the time the adultery was committed.() To entitle a party to sustain a bill for a divorce, he must be an actual and bona fide inhabitant of the state at the time of the adultery committed, and at the time of exhibiting the bill.(e) Where the complainant, a native of Scotland, married his wife in New-York in 1780, and left her in 1784, and went to the West-Indies, and continually resided abroad, excepting only a short visit to New-York in 1792, until the time of filing his bill for a divorce in 1813, a period of twenty-eight years, it was held that he was not an inhabitant of the state within the words or intent of the act.(f) (b) Betts v. Betts, 1 Johns. Chan. Rep. 197. (e) Ibid. (e) Williamson v. Parasien, 1 Johns,, Chan. Rep. 389. (ƒ) Williamson v. Williamson, 1 Johns. (d) Mix v. Mix, 1 Johns. Chan. Rep. Chan. Rep, 488. 204. |
