2 Paige Ch. 621 | New York Court of Chancery | 1831
The affidavits produced on the part of the husband, before the vice chancellor, presented a strong case against the wife ; and if those affidavits are true, she h¡as no claim or pretence to be furnished with money, from the husband’s daily earnings, to carry on this litigation. But in the case of L. Wood v. C. Wood, (Ante, 108,) this court held that the question as to the wife’s guilt, could not be decided upon conflicting affidavits, on an application like the present. The case of Perkins v. Perkins, decided in September, 1828, was disposed of on a different principle. It is true that in that case affidavits were produced on the part of the complainant, showing that the defendant was a common prostitute, and that she kept a house of ill fame, in the city of New-York. The complainant, however, was an infant, without property, and the suit was prosecuted by his father, as his;
Upon the papers which were presented in this cause, however, there was a defect, which, if the vice chancellor’s attention had been called to it, he would undoubtedly have considered a sufficient ground for refusing the respondent’s application. The defendant, to a bill for divorce, charging her with the crime of adultery, is not bound to put in her answer on oath, as she cannot be called upon to criminate herself. But this court has frequently decided, that if she applies for an allowance- to enable her to defend the suit in such a case, she must, in her petition, deny the adultery charged in the complainant’s bill, or show that she has some other valid defence to the suit. The first petition presented in the case of Wood v. Wood, above referred to, was dismissed, because the wife had not denied, on oath, the adultery charged against her in the bill. But on a suggestion that the allegation of her innocence had been left out of the petition-through mere inadvertence on the part of her solicitor, she was permitted to renew the application. Although this court will not, on an application for an allowance to defend the suit, or for alimony, decide as to the guilt of the wife, if she denies the charge on oath, yet, if her guitlt is open and notorious, as it is alleged to be in this case, she may be indicted and punished for the perjury if she swears to a petition which she knows to be false. If the recriminatory allegations in her answer and cross bill are true they furnish a good defence, although she might not be able to swear to her own innocence. But the cross bill is filed on her allegation of belief only; and the charges therein are fully denied, not only by the appellant’s own oath, but also by the oaths of the persons with whom the offence of adultery is alleged to have been committed. If the wife, therefore, intended to rely on these recriminato
The order of the vice chancellor must be reversed, and the petitions be dismissed ; but without prejudice to the right of the respondent to renew her application to the vice chancellor, upon a new petition, denying on oath the adultery charged in the bill of the appellant. If, however, as alleged by the husband, the wife has sufficient property in her hands to defray the expenses of the suit and to support herself pending the litigation, he should not be called upon personally to advance any thing more, until that property is exhausted. And an order may bemade, authorizing such a disposition of the property as will give a good title to the purchaser.
The proceedings in this case are to be remitted to the vice chancellor.
