2 Paige Ch. 501 | New York Court of Chancery | 1831
There is no doubt that by the law of England, as it existed at the time of our separation from that country, and as it still exists there, such conduct as is charged by the complainant in this bill, if not produced by his own misconduct, would be sufficient to entitle him to a. decree against his wife, in the proper court, divorcing her from his bed and board. Although the applications to the ecclesiastical courts in England for separation on account of cruelty, are generally on the part of the wife, yet all the writers on the subject admit the right of the husband to institute such a suit. (Oughton, tit. 193. 1 Black. Com. 441. Poynter’s Mar. & Div. 210.) , In the case of Kirkman v. Kirkman, in the consistory court of London, in 1807, (1 Hagg. Cons. R. 409,) Sir William Scott pronounced for a divorce from bed and board, in a suit promoted by the husband against his wife, for acts of violence and other cruel treatment on her part. I have before had occasion to say that divorces, even such as are only to release the parties from the obligation of cohabiting together, “ should never be allowed, except for the protection of the innocent party, and for the punishment of the guilty.” The common law has given to the husband sufficient power over the wife, to render the interference of a court unnecessary in all ordinary cases. But if a separation for cruelty aud violence on the part of the wife is to be decreed in any case, the facts stated in this bill' seem to present that case. The cruelty which entitles the injured party to a divorce, consists in that kind of conduct which endangers the life or health of the complainant, and renders cohabitation unsafe. (Poynter’s Mar. & Div. 209.) If the charges in this bill are true; if this defendant permits her passions so far to usurp the throne of reason, as to allow her to perpetrate such outrages upon his children; to attack and
It is insisted on the part of the complainant, that, independent of any statutory provision on the subject, this court has the power to decree a separation in such cases; that so far as relates to the civil remedies of the parties, it possesses all the powers which are vested in the ecclesiastical courts of England in matrimonial causes.
In Wightman v. Wigtman, (4 John. Ch. R. 343,) Chancellor Kent certainly did assume a jurisdiction which in England is at this time exercised exclusively by the ecclesiastical courts. In that case he made a decree declaring a marriage void, on the ground that the complainant was a lunatic at the time the marriage was celebrated. And the reasoning of the court in that case goes far towards establishing the doctrine contended for by the complainant here. In Ferial v. Gojon, (1 Hopk. R. 478,) Chancellor Sanford also made a decree declaring a marriage void, on the ground that the consent of the complainant thereto was obtained by fraud and terror, and that the marriage had never been consummated by cohabitation. The decision in the last case is put upon the ground that there is a jurisdiction in the court of chancery in England, concurrent with that of the ecclesiastical courts, to declare such a marriage void, on the ground of the duress and
That part of the ancient common law of England which rendered a marriage absolutely void, where either of the parties had not the legal capacity to contract matrimony, or where there was in fact no legal consent by one of the parties, the same having been obtained by force and fraud and never afterwards voluntarily acquiesced in, was undoubtedly brought to this country by our ancestors and formed a part of the law of this colony. In such cases, for all the substantial purposes of justice, the courts of common law and of equity in England had concurrent jurisdiction with the ecclesiastical courts. Although the other courts yielded to the courts Christian the exclusive jurisdiction to declare the nullity of the marriage by a direct proceeding between the parties, it was rather on the ground of convenience than from a want of power in the court of chancery to grant similar relief to the parties. The court of chancery and courts of common law always exercised the power to declare the marriage absolutely void, whenever the question came before them in any collateral proceeding. (Betsworth v. Betsworth, Styles’R. 10. Riddleson v. Wogan, Cro. Eliz. 858.) In those cases the sentence of the ecclesiastical courts does not dissolve the marriage, inasmuch as no lawful marrriage can have taken place. It merely declares the fact of marriage to be a nullity. (Poynter, 156.) In the case of Bowzer v. Ricketts, ( 1 Hagg. Cons. R. 214,) Sir William Scott says : “ The marriage act declares marriages in such cases to be ipso facto void. The sentence of the ecclesiastical court is declaratory only; it does not make them void.” In such cases, where the rights of the parties existed inde
Chancellor Kent evidently thought some of those marriages were absolutely void, even if no sentence of nullity was pronounced ; but in general they are only voidable by the sentence of the appropriate tribunal. Poynter says : “ A marriage merely voidable is valid for all civil purposes, until by a sentence, its nullity has been pronounced; and when a marriage is voidable, on the ground of a canonical impediment only, the sentence of the court is interposed to annul it, as a state in which the parties cannot continue without endangering their souls’ health, and causing the profanation of matrimony.” (Poynt. Mar. & Div. 154.) In those cases, however, if a marriage defacto is annulled by the ecclesiastical court during the life of the parties, it renders it void from the beginning, and bastardizes the issue thereof; but if not so dissolved, the issue are legitimate. ( Elliot & Sugden v. Gurr, 2 Phil. Eccl. R. 16. Harris v. Hicks, 2 Salk. 548.)
Where the right claimed as a common law right is of such a nature that it cannot be enjoyed in any manner, except by the direct interference of a judicial tribunal to give the remedy, if no tribunal has been organized by the law making power for that purpose, we may fairly conclude the right does not exist. But whenever the legislature distinctly give the right, without creating or appointing any particular tribunal to administer the remedy, it is fairly to be inferred that they intended to vest that power in some of the existing tribunals of the country. As the right to dissolve a marriage
The decision of Chancellor Sanford, in Burtis v. Burtis, is therefore entirely consistent with that of his predecessor, in Wightman v. Wightman, before referred to, so far as relates to the point actually before the court in the last mentioned case. In the one case, the marriage was absolutely void ; and this court, in the exercise of its ordinary jurisdiction, had a right to remove the apparent obstruction to the wife’s contracting matrimony with any other person. In the other case, there was a good marriage defacto; and the court very properly decided that the power to dissolve such a marriage did not then exist in this state, except by the interference of the legislature.
The principles on which Chancellor Sanford’s decision rests, appear to be equally applicable to the case now under consideration. And I conclude that this court has no power to decree a separation between these parties on the complaint of the husband, unless the powers conferred upon it by the 12th section of the act of April, 1824, (Laws of 1824, ch. 205, p. 249,) are still in force, as to this case. Such was the opinion expressed by Chancellor Kent, in Van Vechten v. Van Vechten, ( 4 John. Ch. R. 501,) notwithstanding what he had said as to the jurisdiction of the court in matrimonial causes, in Wightman v. Wightman.
The general repealing act of December, 1828, (2 R. S. 779, § 5,) declares that the repeal thereby of any statutory provisions shall not affect any act done, or right accrued, or established, &c. previous to the time when such repeal shall take effect; but every such act or right, &c. shall remain as ■valid and effectual as if the provision so repealed had remained in force. If I have succeeded in showing that the right
But the counsel for the complainant also thinks he has discovered that the act of 1824, so far as it relates to this subject, is not in fact repealed, and that it remains in full force; subject however to the modifications contained in the 11th and 12th sections of the repealing act. The revisers, and probably the members of the legislature who assisted in the revision of the laws, intended to repeal and abrogate this provision, in favor of the husband, contained in the act of April, 1824. Believing this to be the fact, I have carefully examined the several provisions of the repealing law, under a hope of finding some clause which, either in terms or by implication, repeals that provision, and thus effectuates the probable intention of the members of the legislature. But I regret the necessity which compels me to say that the counsel for the complainant is right; and that the 12th section of the act of 1824 is not repealed.
This section is found at the end of a local statute, altering the terms of the county courts in some few of the counties. It was probably placed there for the purpose of procuring its passage through the legislature, without comment or examination, just at the close of the session. This singular course, of coupling it with a local act to which it had no relation, in order to get it through the legislature originally, has probably caused it to be overlooked a second time, in preparing the repealing act; and it is thus retained as a part of the existing law of the state, contrary to the probable intention of the legislators who revised the laws. The title of the act gives no intimation that any such principle is embraced in its provisions. The act itself is therefore not set out
The demurrer in this case must be overruled, and the defendant must put in her answer to the complainant’s bill within the time prescribed by the 49th rule. As she has no separate property, no costs are allowed against her.