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A decree of divorce a vinculo matrimonii, though the adultery is fully ascertained, is not granted of course in all cases.(g) If the husband, subsequently to the adultery, cohabits with his wife with knowledge of her guilt, it is a remission of the offence, and a bar to a divorce.(h) Lapse of time, also, or a long acquiescence of the husband without any disability on his part to sue, will be a bar to a prosecution for a divorce.(i) Where a husband having been absent from his wife for eight years, in a foreign country, and she supposing him to be dead, married another person, and the first husband afterwards returned, and finding his wife cohabiting with her second husband, without taking any steps to obtain a divorce went abroad, and continued absent for twenty years, and then returned again, and filed a bill for a divorce against his wife, who was living with her second husband, by whom she had several children; the court, though the counsel of both parties consented to a decree, dismissed the bill with costs.(j) The 12th section of the act concerning divorces, 1 N. R. L. 197. relative to security for costs to be given by the plaintiff, does not apply where the bill is filed on the ground of adultery, though the bill contains also a distinct charge of cruel treatment.(k) In the case of Pomeroy v. Pomeroy,(l) it was doubted by the Chancellor, whether charges of adultery and of cruel treatment could both be contained in the same bill, since the one charge required an answer on oath,
(g) Williamson v. Williamson, 1 Johns. (j) Ibid.
Chan. Rep. 488. (k) Pomeroy v. Pomeroy, 1 Johns. (h) Ibid. Chan. Rep. 606. (i) Ibid. (1) Ibid. 606.
, and the other did not, and since a confession of the
Form of the Bill.
To the Honorable James Kent, Chancellor of the state of New-York:
Humbly complaining, sheweth unto your honor, 24. Form of
your orator A. B. of the city of New-York, that your orator was lawfully joined in the bands of matrimony to his present wife Charlotte, on the first day of June, 1812; from which time forwards they have been, and now are, inhabitants of the city of New-York. And your orator further showeth unto your honor, that the said Charlotte, since the said first day of June, wickedly disregarding the solemnity of her vows, and the sanctity of the marriage state, hath committed adultery, at divers times, with D. S. and others, to your orator unknown: And your orator further shows unto your honor, that on or about the first day of April, in the year of our Lord one thousand eight hundred and sixteen, the said Charlotte embarked as passenger on board of a certain sloop or vessel, the name of which is unknown to your orator, then lying in the waters of the city of New-York, and bound for Newburgh, in
(m) Codd v. Codd, 2 Johns. Chan. Rep. 224.
the state of New-York; that on the same night, the said Charlotte having retired to a birth or bed fitted up in the cabin of the said sloop, was followed by the said D. S. the captain of the said sloop, and the said D. S. then and there had carnal connection with the said Charlotte, and she the said Charlotte did then and there commit adultery with him the said D. S. And your orator further shows unto your honor, that afterwards, to wit, some time in or about the month of February aforesaid, and also in the months of March and April in the same year, but on what days in particular your orator is ignorant and cannot set forth, the said Charlotte then being at Newburgh aforesaid, and residing in the family of one G. W. she the said Charlotte did commit adultery with divers persons, the names of whom your orator has been unable to discover and cannot set forth : And your orator further shows unto your honor, that by means of the said several premises above set forth, the domestic peace and happiness of your orator has been entirely destroyed. In tender consideration whereof, and to the end, that the said Charlotte may, true, full and perfect answer make to the matters and things herein charged and set forth, as fully as if the same were herein again repeated, and she interrogated thereto ; and particularly, that she may set forth and discover whether your orator and she, the said Charlotte were not joined in wedlock as aforesaid, and whether, since her marriage with your orator, she has not committed adultery with the said D. S. at the time and place, and under the circumstances herein before set forth, or how otherwise ; and also in or about the months of February, March and April aforesaid, at Newburgh aforesaid, or at some other time, and when, and with some other person or
persons, and whom. And that the marriage between
Form of Answer.
State of New-York, ss. - 25. Form of The answer of C. B. the wife of A. B. defendant to “"“” the bill of complaint, exhibited against her by the said A. B. her husband. The said defendant saving and reserving to herself, now and at all times hereafter, all and all manner of benefit and advantage of exception, to the manifold uncertainties and imperfections in the said complainant's said bill of complaint contained, for answer thereunto, or unto so much thereof as materially concerns this defendant to make answer unto, she answereth and saith; that it is true, that about the time
mentioned in the complainant's bill of complaint, this defendant and the complainant were duly and lawfully married; and that the said A. B. and this defendant, from the time of their intermarriage until the present time, have been, and continued, and now are inhabitants of the city and county of New-York, as is set forth in the said bill of complaint: And this defendant fur"ther answering, positively and unequivocally denies that she ever did commit adultery with the said D. S. or with any other person or persons, at any time or times whatever, as is in this respect untruly and maliciously charged in the said bill of complaint: And this defendant further answering, admits, that true it is she did embark on board of a certain sloop or vessel lying in the waters of the city of New-York, on or about the first day of April, in the year of our Lord one thousand eight hundred and sixteen, on a voyage from the city of New-York to Newburgh, in the state of New-York, but this defendant absolutely and wholly denies that she did at that time, or at any other time or times, commit adultery with the said D. S. the captain of the said sloop, nor at any other time or times whatever, as is in this respect most untruly alleged in the complainant's said bill of complaint. And this defendant further answering, admits, that she did live at Newburgh, aforesaid, during part of the months of February, March and April, in the said year of our Lord one thousand eight hundred and sixteen, but this defendant expressly denies, that during that time, or at any other time or times
whatever, she the said defendant did commit adultery
with any person or persons whatever, as is in the said bill of complaint most untruly, maliciously and wickedly charged. Without that, that any other matter or thing material or necessary for this defendant to make