44 N.H. 122 | N.H. | 1860
There seems to us to be insuperable difficulties in the way of the allowance of this motion. The object of the suit is merely personal, to change the status or relation of the pai'ties to each other; to put an end to the connection between them of husband and wife. As incidental to that principal object, the
The general rule at common law and in the nature of things is, that suits of all kinds abate by the death of the plaintiff. The action may be prosecuted, or revived, only in those cases where the right of the plaintiff survives to his personal representatives, his heirs, or executors. They can not be prosecuted for the benefit of others who do not occupy the position of the plaintiff, though they may have rights of their own which might be settled by the action.
We are unable to recollect any case, where a suit brought for the mere personal benefit of an individual, and in no way affecting rights of property, except incidentally, has ever been prosecuted by any other than the party himself, unless by virtue of some express statute.
It seems to be a leading and essential requisite to a decree of divorce, that the fact of an existing marriage should be proved. Thus it is said, in Bishop on Divorce, sec. 814, “ In every divorce suit, on whatever cause founded, the plaintiff must allege and prove, first his marriage with the defendant, and secondly a sufficient breach of matrimonial duty.” Ibid., sec. 315. “ The necessity of proving the marriage arises not only from the fact that the marriage is an essential ingredient in the offense alleged, since no violation of matrimonial duty can take place where the matrimonial relation does not exist, but likewise from the consideration that as divorce is the Suspension or dissolution of this relation, if there is no relation subsisting, there is nothing for the divorce to act upon. And so marriage is the foundation of the whole proceeding, and the decree or sentence of divorce affirms the marriage in form and effect, as well as declares the separation.”
It would seem that in England, in suits for nullity of marriage, third persons may prosecute. Thus (Bishop on Divorce, sec. 317) Dr. Swabey, the judge, admitted, on the authority of former decisions, that if the suit were prosecuted by a person other than one of the parties to the marriage, and the proof of the fact of the marriage were not in the power of such a plaintiff, it might, without tDe proof, be declared void. Under the latter state of facts the decree
The motion must he denied.