40 How. Pr. 328 | N.Y. Sup. Ct. | 1870
It was said, upon the argument, that no ease, in print, could be found, except Mordaunt agt. Mordaunt, decided the present year in England ; Broadstreet agt. Broadstreet (7 Mass., 474), was cited. It was decided in 1811, and is reported in less than ten lines. It differs from the present case, in this; in that case, the defendant was insane, at the time it was alleged the adultery was committed and so continued, a and the insanity being proved to the satisfaction of the court, the libel was dismissed.” No authority -was cited. The case is a clear authority, for the position that insanity, at the time the act of adultery was committed, constitutes a full defense in an action for a divorce on the ground of adultery.
The case of Mordaunt agt. Mordaunt was tried in the divorce court, in England, in February, 1870, upon the issue whether Lady Mourdant, the defendant, was at the time the action was commenced, of sound mind, and whether she has since that time, been of sound mind. The verdict was that at the time the action was commenced, she u was totally unfit to instruct her attorney, and, has been unfit ever since.” The court then ordered a stay of all proceedings in the suit until the defendant should recover her mental capacity. Upon appeal to the full court, the order was affirmed (see Albany Law Journal, vol. 1, 492, or No. 25), It is said in the note, in the journal, that the majority of the court, on the appeal, rested their opinion mainly upon the analogy of the case to a criminal proceeding. Unsoundness of mind—insanity—has always been regarded as a great calamity, and those thus afflicted, at the time the criminal act was done, are not amenable to punishment. They are objects of commiseration and entitled to the sympathy of those blessed with “ sound minds and memory.”
Coke tersely says, "a mad man is only punished by his madness.” Insanity arrests the trial, though it may not be claimed, that insanity existed at the time the criminal act was done, one reason assigned, being that the insane per
The married relation ought not to be dissolved, in case the act of adultery was committed at a time when the party committing the act was of unsound mind—insane— and the Mass, case (supra), is authority for this. This position rests upon sound principle. ‘ The parties to the contract take the risk of sickness, and the calamities inflicted upon them by Providence. Insanity may have led to the commission of the act. But when the act of adultery was committed prior to the insanity, I am not able to see why the aggrieved party should not have redress. The state will forbear to prosecute a subject or citizen, for an alleged crime, while such citizen is of unsound mind ; and the reason assigned, viz.: that he is incompetent to make his defense, was, at one time, very potent, when, by the common law, the party accused of crime, was not allowed counsel, but was to make his defense unaided by any one. The
The action of the courts is not arrested in civil cases touching the rights and liberties of persons of unsound mind. Such persons are not liable on their contracts entered into when insane, because they have not capacity to make an agreement. They are liable upon all contracts entered Into prior to the insanity. They are liable to respond in
The investigation or trial proceeds and the ordinary remedies are applied notwithstanding the insanity of the party. (See Bush agt. Pettibone, 4 Wend., 300, and cases cited in the opinion.) The law has made ample provision for the protection of the rights of the lunatic, by. the appointment of persons to make defense. Why may not the rights of one charged with adultery prior to his lunacy he in like manner protected ?
The law of divorce in England is very different from the law on that subject, in this state. Until very recently, the ecclesiastical courts had exclusive jurisdiction of divorces, and a divorce, a vinculo matrimonii, was only allowed for some cannonical cause of impediment before marriage. Whatever occurred after marriage was only a ground of divorce a mensa et thoro, that is, a separation. Adultery was only a cause of separation from bed and board. (See Black, vol. 1, 400—1.)
The law of divorce, in this state is declared by statute. Idiocy or lunacy, at the time of the marriage, is a cause for annulling the marriage. Adultery is a cause for the decreeing of a divorce and dissolving a marriage. (See 2 R. S. 144, § 38). This is so by statute and not by common láw. The reasons why the state will not prosecute persons during their insanity, charged with crime committed while sane, have been shown, and in my opinion they ought not to be applied, by way of analogy, or otherwise, in civil actions for a divorce, in the language of the statute, dissolving the marriage. The analogy between the remedies given in cases of lunacy, is much more natural and reasonable. Mordaunt agt. Mordaunt, is not authority here, nor is it applicable to the system of law, touching divorces, existing in this state. The plaintiff should have judgment dissolving the marriage.