Williamson v. Parisien

1 Johns. Ch. 389 | New York Court of Chancery | 1815

The Chancellor.

The bill was filed the 15tli of January, 1813, and the answer, among other things, states that the plaintiff*1 has his residence in the island of Jamaica, where he has a house of commerce, with other possessions, and slaves.” Upon this bill and answer, a reference, upon the motion of the plaintiff, was made to a master, to in quire into the truth of the facts set forth in the bill and answer, and all questions arising thereon were reserved. Before, then, the question of adultery can be discussed, we must determine, from the facts stated in the report, whether the plaintiff had a residence within this state at the commencement of the suit, so as to entitle him to sustain the action. The statute concerning divorces is very explicit on this subject, that the injured party must be “ an actual resident in this state at the time of the adultery being committed, and at the time of exhibiting the bill.”

From the proof taken before the master, it appears, that the plaintiff is a native of Scotland ; that he came to Nevs-York during the revolutionary war, and married the defendant in 1780 ; that, in June, 1784, he went to the West-Indies, and did not return to New-York until June, 1792 ; that, in the mean time, he was not heard of in his wife’s family here, and it was generally supposed he was dead ; that he soon after returned to the West-Indies, though how soon does not certainly appear; that, about 1797, a son of his, by the defendant, went to live yvith him in the West-Indies ; that, as to his second or last return to this state, it must have been very shortly before the filing of the bill, for one of the witnesses says he saw him, for the first time, about two months before the 13th of October, 1813, but that he understood he had been here as long as nine months. Another witness saw ... him since his last return only, about three or four months November, 1813 ; and a third witness says, that she had not heard of the plaintiff since his first return, until within about a year from November, 1813. These witnesses are all that speak on the subject of his last return to New-York, and as they were acquaintances, or connexions, of the parties, they were the persons who would, probably, acquire the earliest knowledge of his return.

Considering that the plaintiff had continually resided abroad from June, 1784, down to near, or about, the time of the filing of the bill, (a period of above 28 years,) with the exception only of the short visit in 1792,1 think here is a want of proof of residence in this state within the purview of the statute. The fact of non-residence was put in issue by the answer, and it was the business of the plaintiff to have furnished some direct and positive proof of the time of his return, and of the establishment of his residence here. The fact was within his knowledge, and the omission to furnish the proof ought to turn every presumption against him. His domicil was established abroad, and it is not changed by an arrival here for some temporary purpose, or on a transient visit. The party suing for a divorce must have become an inhabitant, and taken up his residence here with a bona fide and permanent intent. There must be the animus manendi, or a train of conduct and acts, showing an intended settlement here, before he can bring himself within the policy, as well as the language of the statute.

. The circumstances of this case are rather extraordinary» The plaintiff, after living with his wife for several years, and having children by her, abandons her while enseint, and goes abroad, and remains for eight years, without giving her either assistance or information. She presumes him dead, and marries again. ' He returns and discovers it, and, with apparent acquiescence, departs again for foreign parts, and continues abroad for 20 years ; and he now, at this advanced period of his life, returns and prosecutes his wife for adultery, arising from the second marriage, after she has lived with her second or assumed husband, with his knowledge and apparent acquiescence, for so many years, and reared up a family of children. The case, on his part, presents a cruel aspect, and I feel no reluctance in behjg obliged to dismiss the bill; yet no conclusion must be drawn from this in favour of the validity of the second marriage. Though an absence for five years, of one of the married parties, will exempt the other, who marries again, from the penal consequences of bigamy, yet the statute provision goes no further; and, beyond all doubt, the second marriage is null and void; no length of absence, and nothing short of death, or the judicial .decree of some court, confessedly competent to the case, can dissolve the marriage tie. This is a principle, I may venture to say, that pervades the laws of all the Christian nations of Europe. (1 Black. Com. 440. 4 Black. Com. 163, 164. Pothier, Traite du Contrat de Marriage, n. 437. 462—497. Ersk. Inst. vol. 1. p. 109. 113. Barrington on the Statutes, 401. Voet's Com. ad Pand. lib. 23. tit. 2. de ritu Nuptiarum, s. 99.)

There were other objections suggested to this bill, arising from the conduct of the plaintiff, and the lapse of time, which I deem very important, but which I need not now discuss, as I find sufficient reason for dismissing this bill simply on the ground of a want of domicil here at the commencement of the suit.

Bill dismissed, with costs.