Jackson v. Jackson

| N.Y. Sup. Ct. | Aug 15, 1806

Spencer, J.

delivered the opinion of the court. After stating the facts, in the case, he proceeded :

The laws of Vermont are to be considered as part of the case ; it appears that the supreme court of that state, had jurisdiction given to them, by a statute of the 28th of February, 1797, to grant bills of divorce, for several enumerated causes, among which is intolerable severity, and to allow alimony. By another statute, passed the 12th of November, 1802, it is provided, that no bill of divorce shall be granted, unless one of the parties has resided within that state one year previous to the granting of such divorce ; the latter act was not to take effect, until from and after the first day of February succeeding its enactment. By a reference to the calendar of the year 1803, it appears that this decree was pronounced on the first day of February, 1803., By the terms of the last statute that day is excluded, so that the ^roac^ question arises, whether the judgment in this case, under the circumstances attending it, can be deemed obliga» tory on the defendant, so far forth, as to sustain the present action.

The case of Hitchcock & Fitch v. Aicken,^* as respects this court, be an authority for saying, that a judgment obtained in a sister state, is liable to be impeached in a suit brought on it here, notwithstanding there may have been a full and a fair trial in the original suit. And so far it quad-rates with this case, for here the defendant appeared, and made his defence^ and thereupon the court in Vermont,• pronounced the decree in question. .

The case being thus open for examination, the question at once arises, how far this court will lend its assistance to carry into effect, between its own citizens, a judgment of a foreign court, where the plaintiff has resorted to "that court, with the avowed object of gaining relief, in a case not provided for by our laws, and against the policy of them. I say against the policy of our laws, because our own legislature having authorised divorces but in one case, intolerable severity of treatment does not warrant a divorce. In delivering the judgment I have formed in the present case, it is not to be understood, that I mean to impugn the principle, that proper deference is due to the decisions of the courts of justice in a neighbouring state, in a case properly before them, and when they do not encroach on the rights’of other states.

We are not called on in the present case, to pronounce on the legal effect of the divorce granted by the supreme court of Vermont. Here is a plain attempt by one of our own citizens, to evade the force of our laws. The plaintiff, to obtain a divorce, which our laws do not allow, instituted her proceedings in. Vermont, whilst she was an inhabitant and an actual resident of this state, and while her domicil continued within this state; for she was incapable, during her coverture, of acquiring a domicil distinct from that of her husband.^† The plaintiff having acted with a view of evading our ..laws, it WQuld.be attended with pernicious consequences, to-aid this attempt to ¿lude them.

It may be laid down as a general principle, that when ever an act is done in fraudem legis, it cannot be the basis of a suit, in the courts of the country whose laws are attempted to be infringed. The cases of Briggs Lawrence,^* and Clugas & Penaluna^† support this opinion, without going beyond the point now submitted. The court are, therefore, of opinion that judgment must be given for the defendant. .

Judgment for the defendant.

* 1 Caines, 460.

† 5 Vez. 767.

* 3 Term, 454.

† 4 Term, 466.