21 N.J. Eq. 61 | New York Court of Chancery | 1870
The hill states that the complainant was married to the defendant, liis wife, in Uewark, June 13tli, 1864; that he was under twenty, and she eighteen years of age; that he was compelled by the father of the defendant to marry her, on account of his previous illicit intercourse with her, which
That at some time not specified, after the marriage, he discovered that she had been guilty of illicit intercourse with other men before he became acquainted with her, and that she was a common prostitute.
That after the marriage ceremony he resided for a year in Newark, and then removed to the state of Indiana; and after having resided there for one year, he commenced proceedings in a county court of Common Pleas for a divorce, and in March, 1867, obtained a decree of divorce from the defendant, which decree he admits to be void and of no effect within this state, for the reason that the defendant was not within the jurisdiction of the court, was never served with process, and never appeared in the suit.
That upon his return to Newark in 1867, proceedings were instituted against him by the city authorities, under the supplement to the vagrant act, approved March 4th, 1864, for the purpose of compelling him to support his wife and child; that the justices, on said application, and the Quarter Sessions, on an appeal by him from the justices, held the decree of divorce void, and adjudged him to pay a weekly stipend; that this judgment was removed by him, by certiorari, to the Supreme Court, where the matter is still pending.
That after these proceedings were commenced, and sometime between the 1st of January and the 1st of October, 1868, the defendant committed adultery with one James M. Clark, and for this he prays he may be divorced.
The defendant, in her answer, admits the marriage at the time stated, admits the ante-nuptial illicit intercourse with the complainant, and the birth of a child soon after the marriage, which she answers was the result of that intercourse. She admits that since the marriage, as is charged by the bill, she had lived with and been supported by her father.
The case of the complainant, as stated by him, does not present itself as one entitled to much favor in a court of equity. He debauched a girl of eighteen, was not willing to make the amende of marriage until threatened by her father either with legal proceedings or other steps; then he pledged himself to the injured one, by the most solemn rite of law and religion, to be her husband, and to support, cherish, and protect her, with the deliberate intention of doing neither; he immediately abandoned her, neither supported nor cohabited with her, and let her bear his child ■without his presence or recognition. After a year he went privily to Indiana, placed on the judicial records there a charge of adultery, which he does not here allege or attempt to prove was true, and in a proceeding of which she had no knowledge, and in which she could make no defence, branded her as an adulteress on the judicial record of that state; that it was upon “due proof” as alleged, only means that the proof was such as did, or ought to, satisfy the court; that the evidence was true is not alleged, nor will it be presumed, because, if true, it would have procured for him a divorce in this state that would have been valid everywhere, and that
The proof, in one respect, shows a much better case for the complainant than is set out in the bill. It appears by the weight of evidence, that he lived with his wife for some months after his marriage, at least until after the birth of the child; that he stayed with her several nights each week, occupying the same room and bed; that he was present and gave proper assistance at' the birth of his child; went for the physician and paid him. How long this continued, is not shown with any degree of clearness by the testimony; I think I will be safe in assuming it to have been for six or eight months after the marriage. It does not ajjpear, even
Such incontinence is attempted to be proved by William F. Rankin, the person with whom it is charged to have been committed. He swears to it clearly and positively, and that it was repeated several times. But his evidence is unsupported by any other proof. It is the evidence of an accomplice in the alleged crime, always suspicious. In criminal proceedings such evidence is admitted, but cautious judges do not allow a conviction on the uusxipported evidence of an accomplice. In this case, this charge is made improbable by the evidence of the sister and father of the defendant. And the evidence of Rankin is positively contradicted by the defendant herself. She is, to be sure, a party to the suit, and this must be allowed to weigh against her credibility.
The mere charge of adultery, even if proved, does not, in law, affect her credibility. If she had been shown as charged, to be a common prostitute, that might and would have great influence upon the reliance which would, in fact, be placed upon her testimony. But there is no proof whatever that she has ever prostituted herself even to James M. Clark, who once let her have $4, and once paid a bill of $2 to a doctor. It does not appear for what the $4 was paid, and if the facts attempted to be connected with the doctor’s bill are true, that was in no sense wages to her. There is no pretence of proof that she was a common prostitute. As she stands, I cannot give any preference to the testimony of Rankin, who, in addition to being an accomplice in the crime, must bear the load of the moral perfidy which always attaches to the breach of the promise not to betray, implied, when a girl of seventeen, in the house of her father, yields to an apparent suitor. Besides this, Rankin, in answer to the question
The allegation that the marriage took place under compulsion, and the threats of the defendant’s father, is not only not proved, but is shown to be utterly unfounded and false.
The next question is as to the fact of adultery, by the defendant, with James M. Clark, charged in the bill as the foundation of the relief sought. The complainant, at or somewhere about the time when he abandoned his wife, had attempted to procure other men to commit adultery with her, to lay the foundation for a divorce. This is shown by three separate witnesses on part of the defendant — witnesses whose characters are unimpeached, and who are not contradicted in the substance of their testimony, or circumstances detailed, not even by the complainant himself, who 'necessarily knew the truth or falsity of this evidence. On each of these occasions he offered liberal rewards, in case of success. On one occasion he took his wife to New York, met the proposed
The time of these several attempts is not shown, but I think it can be iratkerod, from the whole of the evidence together, that it was somewhere in the winter of 1865. These! failing, the complainant, some time in 1865, removed to Indiana, and in January, 1867, commenced proceedings lor a divorce in Indiana, which lie obtained in March, 1867. In that year, after his return to Newark, the proceedings of the municipal authorities, above mentioned, to compel him to support his wife and child, which are still in progress, were begun. Complainant and his father, under the name of Hodden and Sou, were manufacturers of photographic plates, which they had for some time furnished to James M. Clark, who was a photographer, and had his rooms at 299 Broad street, Newark. Clark was a single man, twenty-seven years old. In 1868 ho had, as a partner in that business, Joseph A. Logan. The complainant was an intimate friend of Clark, but not, as Clark testifies, the most intimate friend that ho had; he called at the rooms of Clark sometimos on business, frequently on other occasions, and was there several times a week.
Some time in March, 1868, the defendant went to these rooms in company with a female friend. She was not known either to Clark or Logan, nor does it appear, except by the defendant’s testimony, for what purpose she went; she says, to have her picture taken; Clark or Logan do not recollect.
Two other questions arise from the facts in this cause, both of grave importance and not free from difficulty. The first is, whether the complainant is not guilty of conniving at,, and consenting to, the adultery of his wife in such way as to forfeit his title to a divorce; secondly : as he had, for more than three years before both the filing of the bill and the commission of the adultery proved, willfully and obstinately deserted the defendant in such manner that the obligation of the marriage contract was, by the law of the state, absolved as to her, and she entitled to a decree of divorce, whether he has any right to complain of adultery on her part, or to relief for the breach of contract which he had never performed on his part, and which was thus, by law, forfeited previous to her default.
The statute provides that if the adultery is by collusion, with intent to procure a divorce, or if the complainant is consenting thereto, no divorce shall be granted. This is an adoption and a re-enacting of the rules on this subject, adopted and applied by the ecclesiastical courts in England, in matters of divorce a mensa et thoro, of which they had jurisdiction, and the practice and decisions of these courts have, so far as applicable, been adopted and followed in this state in divorce causes. By these decisions, it is settled that a husband who connives at, or assents to, adultery by his wife with one person, shall be deemed as"assenting to it with others, and will not be entitled to a divorce for a subsequent act of adultery with a different person. This doc
But if this were not the rule, and if this court was governed by the doctrine imputed to Sir William Wynne in Hodges v. Hodges, that consent or connivance with adultery with one person, did not take away the right of divorce for a subsequent adultery with another; yet there is in this case evidence to show that the complainant knew of and acquiesced in these acts of adultery with Clark, even if he did not procure them to be committed.
He was a frequent visitor at this gallery, several times, weekly; he was an intimate friend of Clark; after one of the earlier visits, Clark gave him a photograph of his child. He heard from time to time what occurred there relative to his wife. And although Clark says he did not tell him the whole, yet he states that he could learn it from the others, who knew all. When the defendant first met Clark she told him of all her troubles with her husband. It is impossible to believe that Clark kept this story from his friend and associate, who, as he must have known, hated his wife, and would be glad to see her degraded. It is possible to suppose that the husband may have continued his visit to that gallery without meeting his wife, but it is impossible to believe that he continued to visit there without hearing of her visits, and the scenes that occurred. Clark testifies that the complainant was in the habit of visiting him at his gallery for various, purposes; that he was at one time apt to run in for a few minutes every time he came down town, sometimes on business, and at others without business, other than sociability. He testifies that he did not tell the complainant what he testified to in the cause, but that complainant had mentioned it to him, though not all the facts he has sworn to; but he states that the facts were known to Van Houten, to Moffat, and Logan; some of these had seen familiarities; he had told to Logan what he had not seen. I do not think any one can doubt from the evidence, but all
It is laid down that if a husband sees what a reasonable man could not see without alarm, or if he knows that his wife has been guilty of ante-nuptial incontinence, or if lie has himself seduced her before marriage, whereby he is put upon his guard respecting her weakness, he is called upon to exercise a peculiar vigilance and care over her, and if he sees what a reasonable man' could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the result. Bishop on Marr. and Div., § 344; Poynton on Marr. and Div. 227-230; Dillon v. Dillon, 3 Curteis 86; Moorsom v. Moorsom, 3 Hagg. 87.
In this case the complainant, if guilty of connivance at all, must be held guilty with intent that his wife should be lead to commit adultery. It is not a case that can excuse his inaction by overweening confidence, or want of discernment, or his unsuspicious nature. Nor was he discharged from the vigilance required, by his having deserted her, and
The contents of the record of divorce exhibit the complainant in such a light as to strengthen and justify the conclusions arrived at as to his intentional connivance, so far as founded upon his disregard to truth and principle. The petition states as the ground of divorce, that at the marriage he believed the defendant to be virtuous, and that she had never had carnal connections with any person, but that on the same evening ho discovered that she was pregnant, and for that reason he has never lived with her, or had sexual intercourse with her. This is the only reason for divorce contained in the petition. The decree adjudges that upon the proof, “ the matters and things set forth in the petition, are true as therein alleged.” The fact that he had ante-nuptial intercourse with his wife is admitted in the bill in this case, and must be taken as true for all purposes, and the fact of cohabiting with his wile for months after marriage, is proved beyond question. This shows that the divorce was procured on pretences known by him to be false, and proved by perjury or sxibornation of perjury, on his part. The bill in this case deliberately misrepresents that decree as founded upon adultery. And some such misrepresentation was necessary to make the allegations in the bill consistent with themselves.
I am therefore of opinion that the statutory bar of consent to the adultery, is proved in two ways. First, by the consent to adultery with three other persons whom he employed to commit the crime with her, which in the case of such actual employment, I hold to be a sufficient consent to subsequent adultery with others, although the adultery he
This debars tbe complainant of tbe relief sought, and renders it unnecessary to consider tbe question, whether tbe desertion for three years, under circumstances which entitled tbe defendant to a divorce before tbe commencement of this suit, and before any adultery proved, would bar tbe complainant. Tbe courts of some states, with statutes like our own, have held this a sufficient bar. Tbe reasoning of those' cases would apply with increased force to this case, where tbe complainant has, by a divorce, beyond question valid in tbe state of Indiana, so far actually severed tbe marriage tie, that when there, be is free from all duties to bis wife, could contract another valid marriage, and could live with such other wife without adultery, and, if tbe law of that state is like that of New Jersey, would be guilty of adultery by even living in tbe same bouse with the defendant.