1 Edw. Ch. 14 | New York Court of Chancery | 1831
The bill in this case is filed by the wife against the husband, for a divorce, dissolving the marriage contract, on the ground of adultery.
A motion, however, is made for a new trial. It is applied for on two grounds: 1st. Because the verdict is not warranted by the evidence; or, in other words, that there is no evidence of any adultery committed by the husband; and, 2d. That the judge admitted improper testimony to go to the jury. I will briefly examine these points in their order.
In the first place, it may be observed, that it is not necessary to prove directly the fact of adultery. If it wore so, there are but few cases in winch the charge of it could be substantiated. In most instances, therefore, the fact is made out fropi circumstances; but they are circumstances involving the fact by fair inference, and lead to it as a necessary conclusion. “ The “ only general rule,” says Lord Stowell, 2 Haggard’s Consist. H 2. “that can be laid down upon the subject, is, that the circum- “ stances must be such as would lead the guarded discretion of a “ reasonable and just man to the conclusion, that the act had been “ committed.” On looking into the case before me, I do not discover any direct evidence of the fact. Still, after a careful examination of the circumstances, as proved to the jury, and which need not be here repeated, (independent of and entirely aside from what is deemed by the defendant’s counsel as objectionable testimony,) I cannot perceive how the jury could avoid the conclusion they came to, nor how any reasonable man can doubt the existence of the fact charged against the defendant. There are numerous cases to be met with in the reports of the ecclesiastical courts of England, where the able and discriminating judges who preside in them, upon circumstantial evidence of a less decisive character than the evidence given in the pre-sent instance, have, without hesitation, pronounced iii favor of $ divorce. If, therefore, the case was before me simply upon that question, I should not feel myself at liberty to disturb the verdict.
But, it is said, improper testimony was admitted ; and, there-' fore, the verdict should be set aside. The evidence alluded to
It is objected to this sort of evidence, that, of itself it affords a ground for a limited divorce, and if such evidence be admited where adultery is charged, a wife lias only to file a bill charging adultery, arid upon proof of cruelty, she may obtain a decree very different from the one she would be entitled to for the cause of cruelty alone. It is undoubtedly the practice in the English courts to admit evidence of cruelty when cruelty and adultery are, at the same time, charged (as they may be) in the libel :■ Poynter on Div. 216. And tMs arises, because the divorce granted in either case is the same. It is merely a separation, and not a dissolution, of the marriage contract, and the reason for admiting proof of cruelty in such cases is* the probability wliich it adds tothe well foundedness of the charge of adultery. It is also of some consequence, say the judges, in determining the question of permanent alimony. But under the laws Of this state in relation to divorce, and the practice which we must necessarily adopt in proceedings of this sort, the rule as to admitting s.uch testimony must be more guarded'. With us, cruelty and adultery are entirely distinct causes of of divorce; and I should not hesitate to say, that they cannot be combined in the same bill as substantive causes of complaint.
Under this view of the case, I am of opinion the judge was substantially right in the decision he made respecting the admission of such testimony. Whether the testimony, when given,' came within the scope of the plaintiff’s offer or was within the rules laid down by the judge, I think is much more doubtful. If it did not, he should have instructed the jury to disregard it. But be that as it may, from the view which I have taken of this case and from the well settled principles of equity in relation to the granting of new trials on feigned issues,
She is entitled to be discharged from the obligations of the marriage contract. A decree must accordingly be entered dissolving the marriage; and a reference be had to a master to ascertain what allowance she may be entitled to' for alimony.
The decretal order herein was entered and notice of taxation of costs given before the proceedings in regard to alimony were perfected. The defendant, before the Vice-Chancellor? as taxing master, objected to the taxation of the costs, as being premature: that the decree- could not be enrolled and be considered as perfected until the matter of alimony had been set at rest: and, that the opposite party must “ elem the record” before the decree could be docketed. The Vice-Chancellor decided against the objection. He was of opinion the merits of the decree were perfected; and that the opposite party might elect to tax the costs which had accrued upon the merits or wait until the master’s report, as to alimony, was confirmed. His honour said, the only thing which could have weight was the trouble of another taxation: but that he would take care, on the second taxation, to protect the defendant from charges which were covered by the present.
“ The decree from ihe time of pronouncing is binding, and an act of the court; all the rest is a sort of ministerial or clerical act.” 2 Harr. Pr. 165, 6th Edit.