16 N.J. Eq. 391 | New York Court of Chancery | 1863
The practice in the English Ecclesiastical Courts on a charge of adultery, either in the libel or in, the responsive allegation, is to set out circumstantially all the principal facts of the case as proposed to be proved. The libel states, also, the various acts of adultery intended to be relied on; when, where, and with whom committed. Dillon v. Dillon, 3 Curteis 86; Shelford on Mar. & D. 398.
The same degree of particularity has not been adopted in bills for divorce in this country. But it is settled that a general allegation that the defendant, within a specified time,
Every principle of good pleading requires that the charge should be so full and specific that the defendant may know the charge she is called on to answer. It should state the time when, the place where, and if known, the person with whom the offence was committed. It is not necessary as in criminal cases, to state the day, but the month and year should be stated.
The libel charging adultery ought to set forth some certain apd definite time, viz. the year and month wherein the crime of adultery is alleged to be committed, for without such specification of time, the libel is not valid in law, and the court will not proceed in the cause, even though the party accused should not oppose the proceeding. Ayliffe’s Parergon 50; Shelford on Mar. & D. 399.
The true rule in charging adultery as well as the reason upon which it rests, is stated with clearness by Chancellor Walworth in Wood v. Wood, 2 Paige 113: “The only safe and prudent course is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues, in such a manner that the adverse party may be prepared to meet it on the trial. If the persons with whom the adultery was committed are known, they must be named in the defendant’s answer, and the adultery must be charged with reasonable certainty as to time and place. If they are unknown, the fact should be stated in the answer and in the issue, and the time, place, and circumstances under which the adultery was committed, should be set forth. Eeither party has a right to make such a charge against the other on mere suspicion, relying on being able to fish up testimony before the trial to support the allegation. When information sufficient to justify the charge is given, the party
These principles and reasons apply as well to the bill charging adultery, as to the answer setting it up by way of recrimination. The same principle is recognized in Clutch v. Clutch, Saxton, 474; and in Burr v. Burr, 2 Edw. Ch. R. 448.
The bill in this case charges that the defendant, since her marriage with the-complainant, hath committed adultery at divers places in the state of New Jersey, with divers persons, whose names are unknown to the complainant. The parties were married on the 15th of September, 1835. The bill was. filed on the 23d of March; 1863. The allegation is tantamount to a general charge that within twenty-eight years before filing the bill, the defendant hath been guilty of adultery. The bill further charges that the defendant, on different days in the years 1858-59-60-61-^62-63, but upon what particular days the defendant is ignorant, at the city of Newark, committed adultery with one John H. G. Hawes, and that the defendant is now, and for a long time past has been, living in adultery with the said John H. G. Hawes, at the city of Newark aforesaid. If any part of this charge possesses the requisite degree of certainty, it is the last clause, which charges that the defendant is now living in adultery at Newark, with Hawes, and it would seem that the defendant’s evidence must be confined to the single point, that at or about the time of filing the bill, the defendant was guilty of the crime specified. But what is meant by a long time past ? and how is an issue to be framed upon the charge ? Suppose the defendant denies the charge, and an issue at law is directed. Is the jury to inquire whether the defendant, within a long time past, has been guilty of adultery ?
It is objected that the charge of adultery is not made positively, but upon information and belief only. The form is derived from the precedents in the Court of Chancery in New York. The averment that the statement is made upon information and belief is there appropriate, because, by the
Where the bill is not verified by oath, the statements contained in it are not understood to be within the knowledge of the party. It is not requisite that they should be so, any more than in the case of a declaration at law. The averment, therefore, that the statements are made upon information and belief, though unnecessary and inappropriate, constitutes no ground for demurrer.
The bill prays a discovery from the defendant, whether, since her marriage, she hath not committed adultery with any person whatever, and with whom, and at what time and place, and under what circumstances. This constitutes a valid ground of demurrer. The rule is, that a defendant is not bound to accuse himself of a crime, or to furnish any evidence whatever -which shall lead to any accusation of that nature. And the objection lies to a particular interrogatory, though the bill be in other respects unexceptionable. Mitford’s Eq. Pl. 194; Story’s Eq. Pl., § 522, 524, 575.
I have thus expressed an opinion upon the several points discussed in the briefs of counsel. But the demurrer, on examination, proves to bo merely a general demurrer for want of equity, under which no objection for want of form can properly be raised. A demurrer must express the several causes of demurrer. Story’s Eq. Pl., § 443; Mitford’s Eq. Pl. 213.
This objection was not raised by counsel, nor is there any intimation, in the briefs submitted, that it has been waived. The demurrer cannot be allowed as it now stands, because it is clear that the bill is not defective for want of equity. Leave may be given to amend the demurrer. Glegg v. Legh, 4 Madd. 208; Thorpe v. Macauley, 5 Madd. 218.
The order is made without costs to either party as against the other.
