78 N.J. Eq. 256 | N.J. | 1911
Lead Opinion
The opinion of the court was delivered by
This is a suit for maintenance brought by the complainant under the statute, upon the ground that the defendant, her husband, has abandoned her without justifiable cause, and refuses and neglects to provide for her support. Two defences were interposed — first, that the complainant deserted hex husband without cause and went to live with her mother; and second, that the marriage between the parties was void, because the complainant had another husband then living and from whom she had not been divorced. The complainant had a decree.
We concur in the view expressed by the learned vice-chancellor before whom the case was tried, that, upon the proofs submitted, the complainant is entitled to the relief which she seeks, unless her marriage to the defendant was shown to be void. The parties were married on the 15th of April, 1875, and two children were born to them, who are now living. It was proved in the case, and not denied, that a little more than four years before the complainant and the defendant were married, to wit, in March, 1871, she went through a marriage ceremony with one James McGinn, and that the marriage was solemnized by a priest of the Roman Catholic Church. She declared, however, upon the witness-stand, that, at the time this ceremony was performed, she was only eleven years old; that, in conducting it, the priest used the Latin language; and that she did not understand that she was being married to McGinn, but supposed that she was being “made a Catholic,” that being what she was told by the priest and by McGinn. She also testified that she and McGinn separated immediately after the ceremony was performed, and that she never saw him afterward. The vice-chancellor accepted this story of the complainant as true, and held that as the marriage between her and McGinn had been contracted before she had reached the age of consent, it was null and void.
We are not at all convinced of the truth of the complainant’s story with relation to her marriage with McGinn. The unlikelihood of a Roman Catholic priest being willing to perform a
Assuming, then, that by the solemnization of the marriage between the complainant and McGinn she became his lawful wife, is that fact a bar to the relief which she seeks? It was proved in the case that in June, 1874, a suit for divorce was instituted in the superior court of Fairfield county in the State of Connecticut (a court of competent jurisdiction), in the name of the complainant and against James McGinn; and that such proceedings were had therein that, at its August term of that year, a decree was pronounced by the court divorcing the parties and adjudging tire complainant to be single and unmarried. If full force and effect be given to this decree, the subsequent marriage of the complainant and defendant must, of course, be held to be entirely valid. The defendant, however, insists that it must be disregarded — first, because of the fact (which he
The decree appealed from will be affirmed.
Concurrence Opinion
(concurring).
I concur in the opinion of the chief-justice.
In Bower v. Bower, 78 N. J. Law (49 Vr.) 387, we pointed out that the fundamental characteristic of a presumption was that it affected the duty of producing further proof. Under this rule, the presumption, in the present case, in favor of innocence and legitimacy, cast upon the defendant, who was in effect asserting his own guilt and that of the complainant and the illegitimacy of their offspring, the duty of producing proof that should meet and overcome such presumption. This, as pointed out by the chief-justice, he did not do. It is not a question of what inferences of fact might logically be indulged in, but of a rule of law and of the defendant’s failure to bring his case with it, and such failure is not cured or helped by the common law rule as to the presumption of death or by our statutory substitute therefor.