THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Eldredge THE MICHIGAN LAW OF WITH FORMS OF PROCEDURE CONFORMING TO THE MICHIGAN JUDICATURE ACT BY JAMES M. POWERS in OF THE BATTLE CREEK BAR I'll 7 DETROIT FRED'S. DRAKK Copyrighted, 1917 By JAMES M. POWERS T PREFACE. The object in writing ihis book h;is IMMMI to gather under one heading all tin* la\\. procedure ami forms of this jurisdiction relating to the subject f marriage and divorce and to supple- ment, by decisions in foreign jurisdictions, such points as have not IMMMI determined by our Supreme Court. Upon questions relating to conflict of laws it has been deemed advisable to add the decisions of the various stales, and, in some of their more important phases, a brief review of the laws of such slates and of oilier countries in their comparative relation to our o\vn. It is the increased litigation concerning the marriage rela- tions and particularly matters of divorce, together with the iieml of me courts to follow the decisions of their own juris- diction, that has made such a treatise necessary. The subject is so important, and some of the questions so complicated and difficult, that it is only in this form that such questions can be discussed and solved. My gratitude is due .Mr. Ilm-ace G. Williams of the Detroit liar for his valuable suggestions and criticisms. With the sincere hope that it will be of interest and value to the profession, this work is respectfully submitted to the bench and bar. Battle ('reek. .June 1.-1JH7. . JAMES M. POWERS. TA'IM.i: <>F CONTENTS. PART ONE. MARRIAGE AND ITS SOLEMNIZATION. CHAITKi; I. INTRODUCTION. 1. Definition. 2. Monogamy. 3. Primitive Marriage Polygamy. 4. Primitive Ceremonies of Marriage. 5. Marriage a Contract. 6. Government Control Over Marriage. 7. Mode of Constituting Marriage in England. 8. Mode of Constituting Marriage in Scotland. $9. Mode of Constituting Marriage in the United States. 10. Consent the Essence of a Valid Marriage. 11. Marriage Ceremonies. 12. Jurisdiction in Matrimonial Causes*. 13. Property Rights of Husband and Wife. CHAPTER II. rnNTUCT OF LAWS KKLATIXd TO MAK'KI AUK AM> DIVQBCE. 14. Foreign Marriages. 15. Marriages against Public Policy and Morality. 16. Incestuous and Polygamous Marriages. 17. Incestuous Marriages. Void or Voidable. 18. Who May Ask for Annulment of Voidable Marriage. 19. Marriage After Divorce Granted. 20. Marriage During Prohibited Period. 821. Protection of Injured Party and Offspring of Illegal Marriage. 22. Modern Legislation. 23. Conflict of Divorce Laws. 24. Full Faith and Credit Clause of the Federal Constitution. 25. < Effect Same as in State where Judgment is Rendered. 26. Written Laws of Foreign Countries. How Proven. rilAITRR III. VALIDITY OF FOKKICN IHYOK<'K AS IKI'K\hKNT .irmsmrTioN OVKI; DKFKNDANT. 27. Scope of Subject Discussed. 28. Domicile of Both Parties in State of Forum. VI TABLE OF CONTENTS 29. Domicile of Neither Party in State of Forum. 30. Domicile of One Party in State of Forum. Personal Service on Other Party. 31. Same. Constructive or Substituted Service on Other Party. 32. Effect on Property Rights when Decree Granted on Constructive Service. 33. Right to Alimony. 34. Custody of Minor Children. Remarriage of Defendant. 35. Limited Recognition. Interstate Comity. 36. Nonrecognition where no Personal Service is Had. 37. Same. Pennsylvania Rule. 38. Same.-^South Carolina Rule. 39. Rule in Federal Courts. Atherton v. Atherton and Haddock T. Haddock. * CHAPTEE IV. DEFINITION AND NATURE OF MARRIAGE CONTRACT. 40. Definition. 41. Nature of Marriage Contract. 42. Who Capable of Contracting Marriage. 43. Statutory Definition. 44. Prohibited Degrees of Consanguinity and Affinity. 45. Legal Impediments Spouse Living. CHAPTER V. ' SOLEMNIZATION OF MARRIAGE. 46. Same Competency of Parties. 47. Who may Solemnize Marriage. 48. One of the Parties to be Examined under Oath. 49. No Particular Form of Ceremony Required. 50. Common Law Marriages. 51. Punishment for Unauthorized Marriages. 52. Want of Authority of Magistrate or Clergyman. 53. Denominational Rites. / . -CHAPTER VI. PROOF OF MARRIAGE. 54. Certificates and Licenses as Evidence. 55. Record of Marriages Continued. 56. Duty of County Clerk. 57. Marriage Licenses. 58. Affidavit of Party Applying for License. 59. Duties of County Clerk. 60. Duty of Magistrate or Clergyman. 61. Penalties for Violation. 62. Record as Evidence. TAMI.K o| OiNTKVlS Ml $63. Marriages to Protect Reputation. $64. Application For a License; Form of Application. 66 Judge of Probate to File Papers; Inspection of Record. 66. Privilege Penalties for Divulging or Publishing, Etc. CHAPTER VII. PRESUMPTIONS. |67. Presumptions of Validity of Marriage. $68. Conflicting Presumptions. $69. Conflict of Laws. $70. Indian Customs. $71. Incestuous and Polygamous Marriages. $72. Marriages When Void. $73. Marriage More than a Civil Contract. $74. Purpose of Statutory Definition. $75. Voidable Marriages. $76. Who May Annul Voidable Marriages. $77. Who May Annul Marriage for Fraud or Duress. PART TWO. RIGHTS, DUTIES AND OBLIGATIONS OF HUSBAND AND WIFE. CHAPTER VIII. STATUTORY PROVISIONS. $78. Introduction. $79. Mutual Property Rights of Husband and Wife. $80. Married Women's Act. $81. Trustee for Married Woman May Convey to Her. $82. Actions by and against Married Women. $83. Husband not Liable for Wife's Contract in Relation to her Separate Property. $84. Antenuptial Contracts. $85. Wife May Insure Life of Husband. $86. Right of Married Woman to Earnings. CHAPTER IX. PROPERTY RIGHTS OF HUSBAND AND WIFi:. $87. Mutual Property Rights. $88. Deed of Land Owned by Wife. $89. Land Held Jointly by Husband and Wife. $90. Same Subject Continued. Vlll TA15LE OF CONTENTS 91. Doctrine of Survivorship Does not Apply to Personal Property. 92. Same Subject Continued. 93. Effect of Divorce on Title to Land Held by Husband and Wife. CHAPTER X. CURTESY, DOWER AND ASSIGNMENTS. $94. Husband's Rights i\i Land of Deceased Wife. 95. Dower. 96. Dower in Case of Lands Exchanged. 97. Right of Alien or Non-Resident to Dower. $98. Dower in Land Mortgaged. 99. Widow's Interest in Surplus after Sale on Mortgage Foreclosure. 100. Dower when Heir Pays the Mortgage. 101. Estimating Dower in Land Aliened by Hus"band. 102. Dower May be Assigned by Probate Court. When. 103. How Dower Assigned by Probate Court. 104. Proceedings and Commissioner's Oath. 105. Dower in Land not Severable. 106. Widow may Occupy with Heirs if they do not Object. CHAPTER XI. BARRING DOWER AND ELECTION. 107. Methods of Barring Dower by Wife or Widow. 108. Dower Barred by Antenuptial Jointure. 109. How Assent Expressed. 110. Antenuptial Settlement. 111. Election in Case of Jointure or Pecuniary Provisions. 112. Election in Case of Provision by Will of Husband. 113. Election. What Constitutes. 114. New Assignment if Widow Lawfully Evicted. 115. Rights of Dower of Non-Residents and Aliens. CHAPTER XII. RIGHTS, DUTIES AND OBLIGATIONS OF DOWRESS. 116. Repairs, Waste, etc. 117. Widow's Right to Remain in Dwelling-House and Have Support. 118. Damages for Withholding Dower. 119. Measure of Damages for Withholding Dower. 120. No Damages Estimated on Improvements. 121. Damages when Heir Has Aliened the Land. 122. Assignment of Dower as Bar. 123. Collusive Recovery of Dower as against Infant Heirs. CHAPTER XIII. BARRING DOWER OF INSANE PERSONS AND MINORS. 124. Insane, Imbecile, Idiotic and Minor Married Women. 125. Proceedings Contents of Petition. rxr.i.i: <>! CONTKNTS ITS. Order and Notice of Hearing. $127. Proceedings: Appearance and Answer. $128. Guardian's Sale of Wife's Interest. $129. Disposition of Fund. 130. Barring Minor's Dower. ' 131. Award of Money in Lieu of Dower. $132. Dower Claimed by Two or More Widows. rilAITKK XIV. HO.MKSTKAh K'HJHTS (>F YVIFK nil \VIhOW. 8133. Constitution. 8134. What Constitutes Homestead. 8135. Object of Exemption. 8136. Land Purchased for Homestead; Intention. 8137. Title in Fee not Necessary. 8138. Homestead in Land Held in Joint Tenancy or Tenancy m Common. $139. Homestead Rights as against Mechanic's Lien. $140. Alienation of Homestead. $141. Abandonment of Homestead. 1 $142. Homestead Exemption to Family after Death of Husband. 8143. Homestead Rights' of Widow when Owner Dies Leaving no Children. THAI-TICK XV. STATKTOIJY PROVISIONS IN RELATION TO HOME STKAh liHJIITS. $144. In General. $145. Statutory Definitions and Exemptions. $146. Mortgage Lawfully Obtained. 8147. Selection of Homestead when Levy of Execution is Made. 8148. When Officer to Make Survey. 8149. How Sale Made after Survey. 8150. House on Land of Another: Not Exempt from Sale for Taxes. 8151. Appraisal and Notice when Homestead Exceeds Fifteen . Hun- dred Dollars in Value. 8152.' How Homestead Advertised and Sold for Surplus. rilAITKi; XVI. SAl.i: OK HO.MKSTKAh OK hKCKASKh PKI.'SONS. 8153. By Probate Court to Pay Debts or Expenses. 8154. Court to Fix Location and Description. 8155. Appraisal and Report. 8156. Confirmation of Report. New Appraisal. 8157. Proceedings on Confirmation of Report. << X TABLE OF CONTENTS CHAPTER XVII. CONTRACTS OF MARRIED WOMEN. 5158. At Common Law. 159. Constitutional Provisions. 160. Statutory Provisions. |161. General Effect of the Statute. 162. Purpose of the Statute. 163. Executory Contracts of Married Women. ' 164. Same Subject Continued. 165. Same Subject Continued. 166. Authority of Husband as Agent of Wife. 167. Rights of Husband's Creditors as against the Wife. 168. Improvements and Materials Furnished to Husband to be Used on Land of Wife. 169. Necessaries and Family Expenses. 170. Necessaries and Family Expenses Contract for Nursing. 171. Married Woman's Subscription Contract for Public Improve- ments. 172. Contract of Married Women Jointly with Husband. 173. Debts Incurred by Married Woman in her Separate Business. 174. Debts Contracted on Credit of Wife's Separate Estate. 175. Contracts for Benefit of Wife's Separate Estate. CHAPTER XVIII. CONVEYANCES AND CONTRACTS TO CONVEY REAL ESTATE OR PERSONAL PROPERTY. 176. Statutory Provisions. 177. Consideration. 178. Joinder of Husband. 179. What Law Governs. 180. Gift by Wife to Husband. 181. Covenants on the Part of a Married Woman. 182. Consent of Husband to Sale of Wife's Property. 183. Same Subject Continued. 184. Conveyance of Husband or Wife to or for Each Other. 185. Conveyance of Undivided OnejHalf Interest by Husband to Wife. 186. Conveyance of Land Held by Husband and Wife by Entirety. CHAPTER XIX. ACTIONS. 187. Statutory Provisions. 188. Rights of Action between Husband and Wife. 189. Action by a Married Woman against a Firm of which her Husband is a Member. 190. Actions by Wife against Husband. 191. Actions for Torts. 192. Action by Wife for Services. TABLE 01 - i>vn:\ n |193. Action by Wife for Alienation of Husband's Affections. 8194. Same Subject: Michigan Statute. |195. Same Subject Continued. 196. Actions by Husband for Alienation of Wife's Affection. 197. Evidence in Action for Alienation of Affections. PART THREE. DIVORCE. CHAl'TKIJ XX. INTROnrCTION. $198. General Views. S199. Local Legislation. 8200. Divorce Tribunals. 8201. Legislation on the Subjects of Marriage and Divorce. 8202. Legislative Divorces. 8203. Same Subject Continued. 5204. Judicial Divorce. 8205. Limited Divorce. 8206. Moral Effects of Limited Divorce. 8207. Marriages Void without Divorce. 8208. Consent Obtained by Force or Fraud. 8209. Decrees Annulling or Affirming Marriages. CHAPTER XXI. IHVOlM'i; LAWS OF I AFFERENT COUNTRIKS 210. General Observations. $211. Divorce Laws of British Empire. $212. Divorce Laws of Canada. 8213. Divorce Laws of the United States. 8214. Jurisdiction Governed by Domicile. 8215. Place of Marriage not Controlling. 8216. What Constitutes Domicile. 8217. Domicile by Operation of Law. 8218. Domicile for Purpose of Divorce. 8219. Change of Domicile. 220. Proof of Domicile. $221. Temporary Absence as Affecting Domicile. CHAPTER XXII. ( AI si:s Ai-mom/iNi; DIVORCE AND THE PRO- CEIM'IiK IN IHKFKKKNT STATES. 222. Courts without Power to Grant Divorce except by Statutory Authority. |223. Alabama. 224. Alaska. XI 1 TABLE OF CONTEXTS 225. Arizona. 226. Arkansas. 227. California. 228. Colorado. 229. Connecticut. 230. Delaware. 231. District of Columbia. 232. Florida. 233. Georgia. 234. Guam. 235. Hawaii Territory. 236. Idaho. 237. Illinois. 238. Indiana. 239. Iowa. 240. Kansas. 241. Kentucky. 242. Louisiana. 243. Maine. 244. Maryland. 245. Massachusetts. 246. Michigan. 247. Minnesota. 248. Mississippi. 249. Missouri. 250. Montana. 251. Nebraska. 252. Nevada. 253. New Hampshire. 254. New Jersey. 255. New Mexico. 256. New York. 257. North Carolina. 258. North Dakota. 259. Ohio. 260. Oklahoma. 261. Oregon. 262. Pennsylvania. 263. Porto Rico. 264. Rhode Island. 265. South Carolina. 266. South Dakota. 267. Tennessee. 268. Texas. 269. Utah. 270. Vermont. 271. Virginia. 272. Washington. 273. West Virginia. 274. Wisconsin. 275. Wyoming. TAMl.i: OF roXTKXTS \\\\ rilAITKH XXIII. DIVORCI-: AM* ANNTLMKNT OF MARRIAGE IN MICHIGAN. 276. Jurisdiction. $277. Marriages Void without Divorce: Legitimacy of Issue. 8278. Marriages Procured by Force or Fraud. 5J279. Actions to Annul Void Marriage. 8280. Sufficiency of Evidence. 8281. Actions to Affirm Marriage. 282. Sentence to Imprisonment for Life. CHAITKK XXIV. CAUSIOS FOK I>IYOKF roNTKNT- XV 334. Acts not Extreme Cruelty. 335. Condonation of Extreme Cruelty. 335a. Refusal of the Husband to Support the Wife. CHAPTER XXXI. GENERAL PROVISIONS IN ACTIONS FOR IH\oi;n; AND ANNULMENT OF MARRIAGE. 336. Residence of Parties. X 337. Oath of Plaintiff as to Collusion. 338. Wife may File Bill in her Own Name. 339. Temporary Alimony and Expense Money Costs. 340. Restraint of Liberty of Wife and Care of Children while Suit is Pending. 341. Custody and Care of Children on Final Decree. 342. Wife Entitled to her Real Estate When. 343. Restoration of Personal Estate of Wife. 344. Trustees When may be Appointed. 345. Duties of Trustees Bonds. 346. Husband to Disclose on Oath. 347. Permanent Alimony. 348. Ascertainment of Amount. 349. Limitation of Power of Court to Award. 350. Testimony When and how Taken. 351. Dower When Wife Entitled to. 352. Lien on Real and Personal Estate. 357. Enforcement of Lien. 358. Execution to Collect Sale or Division of Property. 359. Suit to Foreclose Lien. 360. Court may Alter Decree. 361. Legitimacy of Children in certain Cases Adultery Former Spouse Living Non-Age. 362. Cohabitation after Divorce How Punished. 363. Who may File Bill to Annul Marriage In Case of Non-Age Idiocy or Lunacy. 364. Annulment Force or Fraud Denied When Custody of Chil- dren. 365. Physical Incapacity Limitations. 366. Admissions and Confessions Testimony of Parties. 367. Court may Deny Relief in Certain Cases of Adultery. 368. Forgiveness and Condonation. 369. Support when Divorce from Bed and Board Denied. 370. Divorce from Bed and Board Revoked. 371. Special Question to be Asked of Witnesses. 372. Bill of Complaint to Allege Names and Ages of Children. Ser- vice of Summons on Prosecutor. 373. Remarriage may be Forbidden Limit of Time Penalty for Violation. 374. Dower Provision in Lieu of Tenants by Entireties. 375. Alimony When Decree Rendered in Another State. 376. Restoring Former Name to Wife. 377. Right of Husband to Alimony Out of Wife's Property. XVI TABLE OF CONTEXTS CHAPTER XXXII. GENERAL STATUTORY PROVISIONS CONCERNING HUSBAND AND WIFE. 378. Abandonment of Wife by Husband. 379. Married Woman Coming from Another State or Country With- out Her Husband. 380. Divorce from Bed and Board. Effect of on Wife's Property and Obligations. 381. Rights of Married Woman in Relation to Property Owned by Her. 382. Alimony Where Wife is Deserted or Neglected by Husband. 383. When Husband May be Required to Support Wife. 384. Proceedings and Practice. 385. Care and Custody of Children Allowance May be Changed. 386. Custody of Children When Husband and Wife Separate. 387. Legal Impediment to Marriage as Bar to Actions for Damages. 388. Punishment of Husband for Desertion. 389. Certain Wife Desertion Felony Limitations. PART FOUR. PLEADING AND PRACTICE. CHAPTER XXXIII. SUITS FOR DIVORCE. 390. Jurisdiction. 391. The Bill of Complaint. 392. Defendant's Domicile. 393. Minor Children. 394. Causes for Divorce: Adultery; Extreme Cruelty. 395. Physical Incompetency. 396. Sentence to Imprisonment; Desertion. 397. Habitual Drunkenness; Divorce in Another State. 398. Failure of the Husband to Support the Wife. 399. General Form of the Bill. 400. Verification of Bills for Divorce. 401. Divorce Suits: How Commenced and Conducted. 402. Suit to Annul Marriage: How Brought. 403. Form of Bill to Annul Marriage. 404. Suits to Affirm a Marriage. CHAPTER XXXIV. BRINGING THE DEFENDANT INTO COURT. 405. Summons: Form and Contents. 406. Summons: How and When Served. TAI'.l.i: <.| roNTKNTS $407. Substituted Service. 5408. Affidavit for Order of Publication. $409. Form of Affidavit. 8410. Appearance of the Defendant. rilAPTKIi XXXV. rj!orKKiHN<;s AI-TI:I; APPKAKAXCI: or DEPENDANT. 411. Copy of Bill to be Served. 412. Demurrers and Pleas Abolished. 8413. Motion to Dismiss. 8414. Default for nojt Appearing. 8415. Default for Want of Answer. 8416. Setting aside Default. 8417. Amending Pleadings. 8418. Answer: Form of. 8419. Sworn Answer: Effect of. 8420. Cross-Bills. 421. Chancery Pleadings: How Verified. 422. Before Whom Pleadings may be Sworn to. 423. Supplemental Pleadings. 8424. Supplemental Bills: Nature of; When Proper. 8425. Who to be Made Parties to a Supplemental Bill. 8426. Form of Supplemental Bill. 8427. Leave to File: How Obtained; Process. 428. Defenses to Supplemental Bill. 8429. Answers to Supplemental Bills. 430. Evidence to Support Supplemental BJ11. CHAPTKi: XXXVI. pi{ori-:i-:mxcs AFTKI; issn: .IOINKD OR n ENTERED. 431. Evidence: How Taken. 432. Reference to Take Testimony: How Obtained. 8433. Testimony: How Taken. 8434. Testimony in Open Court: Objections to. 8435. Witnesses in Divorce Cases. 8436. Alimony and Expenses. 8437. Temporary Alimony: How Procured. 8438. Order for Temporary Alimony and Expenses: Contents of. 439. Questions of Guilt not Considered. 440. Amount of the Allowance. rHAPTKK XXXVII. OTIIKI: INTKKLorrToliY PKorKKIH \<1S. 441. Injunction to Restrain Sale or Incumbrance of Property. 8442. Injunction to Restrain Threatened Injury. 443. Proceedings to Compel Payment of Temporary Alimony. XV111 TAKLE OF CONTENTS 444. Alimony: Proceedings to Compel Payment under the Provi- sion of Act No. 379, Public Acts of 1913. 445. Due Process of Law. CHAPTER XXXVIII. MOTIONS AND AFFIDAVITS. 446. Motions Classified. 447. Motions Granted of Course. 448. Special Motions and Petitions. 449. Motions Framing Issues on Hearing. 450. Witnesses on Hearing of Motions. 451. Common and Special Orders. CHAPTER XXXIX. HEARING AND DECREE. 452. Jury Trials in Divorce and Annulment Case's. 453. Proofs in Divorce and Annulment Cases: When and How Taken. 454. Notice of Hearing not Necessary. 455. Cross-Examination of Opposite Party. 456. Witnesses: Compelling Attendance and Testimony. 457. Warrant for Apprehension of Delinquent Witness. 458. Mode of Administering Oath to Witnesses. 459.. Competency of Witness Religious Opinions. 460. Competency of Witness: Appreciation of Nature and Obliga- tion of Oath. 461. Children as Witnesses. 462. Conviction of Crinie. 463. Aclmissibility of Testimony. 464. Court to Rule on All Objections. 465. Argument of Divorce Cases. 466. Decrete: Preparing and Settling. 467. Rehearing: Application for. 468. Enrollment of Decree. 469. Discharge and Satisfaction of Decree. 470. Enforcement of Decree. CHAPTER XL. 1'OWERS AND DUTIES OF PROSECUTING ATTORNEYS IN DIVORCE CASES. 471. Reason for Public Representation. 472. General Legislation. 473. Michigan Statutory Provisions. 474. Duty on being Served with Summons. 475. Subjects of Investigation. 476. Prosecutor not Disqualified to Act for Either Party. 477. Compensation for Services. r \i:i.i: nr CONTBN i ^ \ I \ j CIIAITI.K XI. I. AIM-HALS TO sri'i:i:.Mi: corirr. |478. Who may Appeal. {479. Claim of Appeal. 4SO. Extension of Time for Appeal. 481. Bond to Stay Proceedings. 482. Evidence How Settled. 483. Method of Settling the Evidence for Review. 484. Notice of Settling Case on Appeal. 485. Duty of Clerk. 486. Original Files may be Dispensed with When. 487. Extension of Time for Making Return. 488. Motion to Dismiss. 489. Service of Papers. 490. Notices How served. 491. Computation of Time. 492. Court may Direct Manner of Service When. 493. Practice Relating to Motions. 494. Motion Days and Motion Docket. 495. Notice of Argument of Causes. 496. Record to be Printed and Served. 497. Briefs Contents and Service of. 498. Call of Cases and Argument. 499. Taxation of Costs. 500. Rehearing: Application For; Costs on Denial. PART FIVE. FORMS IN DIVORCE PROCEDURE. No. 1. Bill of Complaint for Adultery, General Form. No. 2. Bill for Divorce by Wife Adultery. No. 3. Bill for Divorce Physical Incapacity. No. 4. Bill for Divorce, Charging Desertion. No. 5. Bill Alleging Desertion. No. 6. Bill -for Divorce, Charging Extreme Cruelty, and Asking for Alimony and Custody of Children. No. 7. Bill for Divorce by Wife, Charging Habitual Drunkenness. No. 8. Bill for Divorce From Bed and Board. No. 9. Bill for Divorce Charging Conviction of a Felony and Sen- tence to the State Prison for Three Years. No. 10. Bill for Divorce Procured by Defendant in Another State. No. 11. Bill by Wife for Refusal to Support. No. 12. Bill to Annul Marriage. No. 13. Bill to Affirm Marriage. No. 14. Chancery Summons. No. 15. Affidavit for Order of Publication Non-resident Defendant. No. 16. Affidavit for Order of Publication When Process Cannot be Served. No. 17. Order of Publication Non-resident Defendant. No. 18. Order of Publication Defendant's Residence Unknown. No. 19. Order of Publication Defendant Concealed. No. 20. Notice of Appearance of Defendant. XX TABLE OF CONTEXTS v No. 21. Motion to Dismiss. No. 22. Order Pro Confesso, for not Appearing. No. 23. Order Pro Confesso for not Answering. No. 24. Order Pro Confesso, Defendant Brought in by Publication. / No. 25. Affidavit of Non-Appearance. No. 26. Affidavit of Default for Want of Answer. No. 27. Supplemental Bill. No. 28. Petition for Leave to File Supplemental Bill. No. 29. Notice of Application. No. 29a. Order Granting Leave to File Supplemental Bill. No. 30. Answer General Form. No. 31. Answer and Cross-Bill. No. 32. Petition for Reference to a Commissioner to Take Proofs. No. 33. Order of Reference to Take Proofs. No. 34. Notice of Taking Proofs Before Commissioner. No. 35. Order Granting Motion to Dismiss Bill. No. 36. Report of Circuit Court Commissioner as to Alimony. No. 37. Order Confirming Report of Commissioner. No. 38. Petition for Temporary Alimony and Expenses by Plaintiff. No. 39. Petition for Alimony and Expenses by Defendant. No. 40. Order Allowing Temporary Alimony and Expenses to Plain- tiff. No. 41. Order for Alimony and Expenses to Defendant. No. 42. Order Denying Temporary Alimony. No. 43. Demand for Payment of Temporary Alimony. No. 44. Affidavit to Obtain an Attachment for Non-Payment of Tem- porary Alimony. No. 45. Order to Show Cause Why Attachment Should not Issue. No. 46. Order for Attachment and Commitment. No. 47. Injunction to Restrain Sale or Encumbrance of Property. No. 48. Injunction to Restrain Threatened Injury. No. 49. Decree of Divorce Reserving Question of Alimony. No. 50. Decree of Divorce and for Alimony. No. 51. Decree for Permanent Alimony After Divorce. No. 52. Decree of Divorce from Bed and Board and for Alimony. No. 53. Decree Annulling Marriage. No. 54. Decree Affirming Marriage. No. 55. Petition for Re-Hearing. No. 56. Order for Re-Hearing. No. 57. Order Denying Re-Hearing. No. 58. Certificate of Enrollment. No. 59. Discharge and Satisfaction of Decree. No. 60. Petition for Discharge of Decree. No. 61. Order Discharging Decree. No. 62. Order Denying Discharge of Decree. No. 63. Order Directing Prosecuting Attorney to Appear and Defend. No. 64. Report of Prosecuting Attorney. No. 65. Order Appointing an Attorney to Defend. No. 66. Claim of Appeal. No. 67. Notice of Appeal and of Application for Approval of Bond. No. 68. Bond on Appeal. No. 69. Case on Appeal. No. 70. Notice of Settling Case on Appeal. No. 71. Notice of Amendments to Case on Appeal. Appendix. Index. PART ONE MARRIAGE AND ITS SOLEMNIZATION PART ONE MARRIAGE AND ITS SOLEMNIZATION. Chapter I. Introduction. Chapter II. Conflict of Laws Relating to Marriage and Divorce. Chapter III. Validity of Foreign Divorce as Dependent Upon Jurisdiction Over Defendant. Chapter IV. Definition and Nature of Marriage Contract. Chapter V. Mode of Solemnizing Marriages. Chapter VI. Proof of Marriage. Chapter VII. Presumptions. CHAPTER I. I NTRODUCTION. 1. Definition. 2. Monogomy. 3. Primitive Marriage Polygamy. 4. Primitive Ceremonies of Marriage. 5. Marriage a Contract. 6. Government Control Over Marriage. 7. Mode of Constituting Marriage in England. 8. Mode of Constituting Marriage in Scotland. 9. Mode of Constituting Marriage in the United States. 10. Consent the Essence of a Valid Marriage. 11. Marriage Ceremonies. 12. Jurisdiction in Matrimonial Causes. 13. Property Rights of Husband and Wife. 1. Definition. Marriage is the union of a man and woman in the legal relation of husband and wife. The term includes both the act which creates the union, and the union itself as the resulting status of the parties. In one form or another, it is the oldest social institution known to the world, and is the source of its most ancient social laws. Society, indeed, could not long exist without sonic rules imposed by the law of necessity for the appropriation of man and woman to one another, securing them .in the enjoyment of each other's society, and defining i heir din ics and obligations, each to the other and both to their offspring. 2. Monogomy. A ronlinu to the law or practice of the greater part of the civilized world, one man marries and becomes the husband of only one woman at a time, which Christ declares to be the fundamental law of God, given in the institution of marriage at the creation of man. This reference of marriage to the highest conceivable origin, which has an essential relation to the characteristic purification of it, 'the Apostle Paul develops for guidance in the practical duties of the wedded state, bring- 3 INTRODUCTION ing to light the formative principle of wedlock as the great earthly symbol of the sacred "mystery" of the union of the Son of God with humanity. "For this cause (that is, since the Son of God left the Father that he might join himself with our flesh) shall a man leave his father and mother and cleave to his wife, and the twain shall become one flesh." 1 3. Primitive Marriage Polygamy. The Mormon heresy on this subject has been practically sup- pressed by the enactment and enforcement of salutary laws. But the familiar system of monogomy is a comparatively re- cent development of marriage. With those who reject the Christian records, a great diversity of opinion exists as to the particular form of primitive marriage. It is conceivable that many forms may have been introduced at a very early period. Polygynia one man with many wives, and polyandria one wife with many husbands, have certainly been in existence. It has frequently been asserted that intercourse was originally promiscuous. 2 This negation of marriage has been and still is vehemently disputed, and with excellent reason. The same authority also affirms a primitive custom of intermarriage be- tween brothers and sisters, the consanguine family of the Malay civilization, and a. custom of intermarriage of several sisters with each other's husbands and of several brothers with each other's wives. This custom is said to have resulted in the formation of a gens, 3 governed in its marriage relations by the principle of exogamy. After this comes the marriage of single pairs, with or without exclusive co-habitation. To speak of these related customs as ancient, rather than as primitive, is more in accordance with such evidence as exists. It is impos- sible to prove the earliest of them primitive; that is, the original custom. The patriarchal families were largely polygamous, and after them true monogamy does not appear in any general develop- ment before the rise of private property, lineal succession and slavery. 1. Eph. V. 22-33. to represent race and nation. In 2. Morgan's Systems of Con- the French law it is used to sanguinity and Affinity. signify people or nation. 3. A word used by the Romans MARRIAGE CONTRACT 5 4. Primitive Ceremonies of Marriage. The primitive marriage ceremonies are immense in number and some of them of striking beauty. As regards Christian Europe, in A. D. 1085 Hildebrand declared marriage a sacrament and at the reformation Calvin declared it an institution of God. The school of Grotius de- scribed it as a contract of partnership. In all countries mar- riage is quite generally, though not always, accompanied by a religious ceremony of more or less formality. 5. Marriage a Contract. In the eye of the law, even where, on public grounds, the intervention of a minister of religion is declared essential, marriage, considered as the act which forms the union, is a contract. While the law deals with marriage as a contract, there has been, and still is, much controversy whether it really is a. contract, and, if so, then to what class of contracts it belongs. For, though consent of both parties one chief essen- tial of all contracts is universally a requisite to a legal mar- riage, yet all of the incidents of the condition and status of the parties, which the act of consent constitutes and creates, are fixed by positive law. Some confusion of thought may be due to the use of the term marriage to denote both the contracting act and the status which that act creates. In the United States it has been decided that marriage is not a contract within the meaning of that provision of the Federal constitution which prohibits legislation impairing the obligation of contracts. The peculiar relation of the several states to the Federal government occa- sions difficulty on this point. In many of the states marriage is declared by statute to be a civil contract, so far as its validity is concerned. This statutory declaration means no more than that to constitute a valid marriage the agreement and consent of both parties must exist, and, like all other contracts, that agreement and consent must be made and given by competent parties. The language employed in the Michigan statute is: "Marriage, so far as its validity is concerned, is a civil contract, to which the consent of parties capable in law of contracting is essential." 6 4. Selection of wives outside Mankind, Lubbock's Origin of the gens. Civilization. 5. McLennan, Primitive Mar- 6. C. L. '15, (11363) ; Howell riage, 2nd Ed., Early History of 2nd Ed. 11424. 6 INTRODUCTION It is plain, however, that while marriage is legally termed a contract, it is distinguished from all other contracts, inas- much as in the latter the parties assign and determine their rights and duties substantially at their own choice, while in marriage the law determines practically all the rights and duties which are elements of the new relation. 6. Government Control Over Marriage. Each sovereign nation, kingdom or empire of the civilized world has the right to regulate r and control the marriage of its domiciled citizens, and the rights, duties and obligations aris- ing from marriage relation. The British parliament has enacted laws relating to mar- riage that differ materially for the different divisions of the empire. Sole power over marriage in the Dominion of Canada was delegated to the Dominion Parliament, by the law known as the British North American Act. While the Canadian Dominion Parliament has the sole power to pass laws as to the legal qualifications of parties to a marriage and offenses against the marriage relation, as well a^ providing for the punishment therefor, it is conceded that each provincial legis- lature in Canada has power to enact legislation governing the form of marriage within its own province, and not repugnant to, nor conflicting with, the federal laws of the Dominion. 7 The British Parliament, by an act known as the Common- wealth of Australia Constitution Act, has also delegated to the Australian Commonwealth Parliament the power to enact uniform marriage laws for the whole of Australia. The Aus- tralian Parliament, however, has not enacted any legislation under this delegated power, and the marriage laws of the different states of the Australian Commonwealth are very dis : similar. Germany, France, and a large number of the other nations of Europe, have uniform marriage laws. s 7. . British Columbia R. S. 1897, Columbia R. 316 ; Legislative Ch. 129, Sec. 24; R. S. Manitoba, Pow,er in Canada, P. 488. 1902, Ch. 173; Alberta Statutes, 8. Commonwealth Australia 1908, Ch. 20, Sec. 23; R. S. Sas- Act (63 & 64 Viet. Ch. 12); Mil- katchewan, 1908. Ch. 22; Cons. ler v. Major, 4 Austr. C. L. R. Statutes of Nova Scotia, 1900, 219; Parker v. Parker, 5 Austr. Tit. 17; R. S. of Ontario, 1897, C. L. R. 691. Ch. 162; Scott v. Scott, 4 British MODE OP CONSTITUTING MARRIAGE IN ENGLAND 7 . 7. Mode of Constituting Marriage in England. In England, to insure deliberation, and to preserve indis- putable evidence of so important a fact, English law makes certain formalities essential to marriage. A breach of the contract to many gives rise to an action for damages, but the marriage itself will not ordinarily be treated as null merely hecaiise either party procured it by fraud or misrepresentation. AnoiluM- feature in which marriage in England and in some of the states differs from other contracts is that it cannot be consummated in a moment by the act of the parties, but cer- tain preliminary notices must be given and certain formalities observed. In England, since 1836, persons have the option of contract- ing marriage either with or without a religious ceremony. If the former, it may be either in the established church or in a dissenting chapel. If it is to take place in the established church, there must be a publication of banns of marriage for three successive Sundays, but a marriage license obtained from the ordinary of the district will dispense with publication of the banns. The marriage must take place in the church, and the marriage service of the Church of England must be read over, both within the canonical hours, that is between eight and twelve o'clock A. M., in the presence of at least two wit- nesses. If the marriage is to be celebrated in p, dissenting chapel (and for that purpose such chapel must be duly licensed and registered), a certificate or license must be procured after notice from the registrar of the district, who must be present as one of the witnesses, except in the case of Quaker or Jewish marriages. If the marriage is without religious ceremony, it must take place in the office of the registrar of the district, and in the presence of two or more witnesses. Both parties, in the presence of the witnesses, must declare that they take each other as husband and wife, the canonical hours being observed in all cases. The omission of any of these requisites, with the knowledge of the parties, makes the marriage void. It is a felony to celebrate a marriage in a private house, unless by special license from the archbishop. In all cases I lie fact of the marriage must be entered in a church register, also in a civil register, the latter being filed and kept in Somersett Hou.se in London, where a copy of the certificate of registration may be had for a small sum. Making or signing 8 INTRODUCTION a false declaration on giving notice to the officials of the in- tended marriage is made perjury by law. In the case of marriage of persons under twenty-one years of age, evidence of the consent of parents or guardians must be produced to the registrar or other officer. There are penalties imposed for false representations of such consent, but the lack of consent of parents or guardians does not make the marriage void. The marriage of Quakers and Jews is subject to peculiar legislation. Such marriages need not be in a registered building, aijd the registering official of the Quakers or the secretary of Jewish synagogue, is authorized to be present instead of the registrar. 8. Mode of Constituting Marriage in Scotland. In Scotland the maxim of the civil law, consensus non conciibitus facit nuptiam consent, not lying together, con- stitutes marriage has been adopted, and this consent can be proved either by a regular ceremony evidenced by a public record, or in three other modes known to the law. The chief impediments to this consent are nonage, insanity,, impotency, consanguinity within the prohibited degrees, exist- ing marriage, and themselves, adultery, in the case of the adulterers. The marriage is null if force has been used,-or an error in belief as to the woman's chastity has been caused by her misrepresentations or concealment, or a mistake of per- sonal identity occurs, or a fraudulent conspiracy has been formed which brought about the marriage. The three other modes referred to for proving consent, be* sides that of the regular ceremony, are known as irregular marriages. Such marriages are constituted by consent which is proved by a written or verbal declaration of interchange of consent by a promise to marry, on the faith of which inter- course has followed, or by co-habitation, habit, and general repute. Proclamation of banns in the parish church is required for a regular marriage, but, by certain formalities, a certificate may be procured from the registrar which will be sufficient authority for a minister, clergyman or priest to celebrate a regular marriage in the same manner as in the case of a cer- tificate of proclamation of the banns in the parish church. 'No minister of the established church of Scotland, however, is obliged to celebrate a marriage not preceded by proclamation of the banns. Where objection is made to the marriage on the riiNSIINT Till: KSSKNCE OF A VALID MAKKIAGE 10 of legal capacity to marry, or any legal impediment to marriage, the registrar is forbidden to issue a certificate until there has been produced the judgment of a court of competent jurisdiction overruling the objection. 9. Mode of Constituting Marriage in the United States. The law of marriage in the United States is far from being settled or uniform, but is now, and for a considerable period of tiim- has been, in ;i n.insitory condition. There has been, and still is, much discussion looking toward a uniformity of mar- riage and divorce laws, but as yet very little, progress has been made, if any. The conception of marriage held by ninny jurists in the United States differs materially from that of the Roman Church, which elevates it to a sacrament, also from the statu- tory one which makes it nothing more than a contract. In the language of Judge Story, "It is more than a contract ; it is an institution founded upon the consent and contract of the par- ties, and has peculiarities in its nature, character and opera- tion, different from what belongs to ordinary contracts." This view of marriage as something more than a mere contract is of special importance in the United States, because of the numerous questions arising relating to marriage and divorce under conflicting laws in fifty or more independent jurisdic- tions. Under the Federal constitution, each state has full power to pass laws governing marriage in its own jurisdiction, and the laws of each state are very dissimilar. The Federal Congress has supervisory control over the terri- torial legislatures as to the marriage laws of each territory, and full legislative control on the subject in the District of Columbia. 10. Consent the Essence of a Valid Marriage. In the United States, as well as in all civilized nations, consent is of the very essence of the marriage contract. There can be no valid marriage by those who have not sufficient raen- 9. Federal Statutes, Annot., 1068, 30 Sup. Ct. R. 682; De la Vol. 1, p. 704; Vol. 2, p. 838; Rama v. De la Rama, 201 V. S. Cross v. Allen, 141 U. S. 528, 12 303, 50 L. Ed. 765, 26 Sup. Ct. Sup. Ct. R. 67, 35 L. Ed. 843; R. 405; Travers v. Reinhardt, 205 Sims v. Sims, 175 U. S. 162, 20 U. S. 423, 51 L. Ed. 865, 27 Sup. Sup. Ct. R., 58 L. Ed. 115; Sis- Ct. R. 563; In re Lando 112 Minn, taire v. Sistaire, 218 U. S. 1, 54 127 N. W. 1125, 30 L. R. A. (N. L. Ed. 905, 28 L. R. A. (N. S.) S.) 940; Garcia v Garcia, 25 S. 9 11 INTRODUCTION tality to consent, such as idiots or insane persons. So a mar- riage procured by force or fraud may be annulled. If another husband or wife of either of the parties is living at the time of the celebration of a marriage, such marriage is void. To make a valid marriage, each of the 'parties must have attained the age of consent. This varies in different states, ranging from sixteen to eighteen years for males and from twelve to sixteen years for females. The consent of parents or guardians of minors is required by the statutes of some of the states. Whether such a mar- riage without consent of parents or guardians would be void depends largely upon the statutes of the different states. In some it is declared void, in others voidable only. The distinc- tion between void and voidable marriages exists in all the states. A void marriage is a nullity ab initio and its validity may be impeached in any couf t and at any time, in either a direct or a collateral proceeding. A voidable marriage, how- ever, is valid until a competent tribunal has pronounced it void in a direct proceeding for that purpose. It cannot be im- peached collaterally. In most of the states, relationship within the prohibited degrees of consanguinity or affinity renders a marriage void, while such causes as nonage, insanity, fraud, duress and physical disability render it voidable only. The effect of this distinction is upon the status of the parties when void the relationship is unlawful from the beginning; when voidable it is lawful until the marriage is dissolved by court of competent jurisdiction. 11. Marriage Ceremonies. The laws of many of the states render certain solemnities indispensable in the celebration of marriage, though informal, or what is known as common law marriages, have to quite a large extent been recognized by the Federal courts and by the courts of many of the states. A present agreement between competent parties to take each other as husband and wife, followed by actual and open co-habitation pursuant to its terms,, is generally regarded as constituting a valid marriage. Such a marriage, in a contest, becomes the subject of proof, and D. 645, 127 N. W. 586, Ann. Gas. R. 936, 38 Atl. 81; In re Chace, 1912 C, 621, 32 L. R. A. (N. S.) 26 R. I. 531, 69 L. R. A. 493, 58 424; State v. Shattuck, 69 Vt. Atl. 978, 3 Ann. Gas. 1050. 403, 40 L. R. A. 428, 60 Am. St. \ 10 KIiJHTS OF HUSBAND AXM \VIFi: 13, may be proved by showing actual co-habitation ;is husband and wife, acknowledgment, declarations, conduct, repute, reception aiming neighbors, .md the like. But the words of the agree- ment must not be verba de futuro; such an agreement gives only cause for an action for breach of promise to marry. If, however, an agreement iu verba de futuro is followed by con- summation a le.ua I presumption is raised that the words de present i afterwards passed between the parties, and unless this presumption is overcome by proof the marriage will be sus lained. The formal marriage throughout all the states consists in having the celebration take place before a clergyman or before some civil officer designed by the statute. So far as forms and ceremonies are concerned, it is a general rule that the validity of the marriage is to be determined by the law of the state in which it is solemnized. 12. Jurisdiction in Matrimonial Causes. In the United States, jurisdiction in all matrimonial causes is generally vested in courts of equity or in courts having equit- able jurisdiction and powers. In some of the states the distinctions between legal and equit- able jurisdiction have been abolished so far as it is possible to do so, but in many respects such distinctions are so marked that they cannot wholly be obliterated. In other states such distinctions are retained, but both legal and equitable jurisdic- tion vested in the same court. The character of the questions which arise in matrimonial causes, and the nature of the remedy to be afforded, are pecu- liarly within the functions of courts of equity, and in niosl states, if not in all. such causes are disposed of in courts having that jurisdiction. 13. Property Rights of Husband and Wife. Within comparatively recent years the common law as to property rights of husband and wife have been materially changed by statutes, familiarly known as the "married women acts," have been adopted to a greater or less extent in all of the states. By these acts married women have been empowered to hold real and personal property, with the same right as unmarried women to its management, control and disposition, to carry on business on their own account for their own 11 13 INTRODUCTION exclusive benefit, and to make enforceable contracts in relation to their separate property and the conduct of their business. In most of the states married women may sue and be sued in their own name, without joining their husbands, although in some of the states it is still necessary to join the husband in an action against the wife in certain actions of tort. During co-habitation, the law, from that circumstance, pre- sumes the assent of the husband to all contracts made by the wife for necessaries which are suitable to the husband's degree and estate. Even though the husband be a minor, he is liable for necessaries furnished to his wife and family, their interests being considered as identified with his. Contracts in restraint of marriage are wholly void. 12 CHAPTER II. CONFLICT OF LAWS RELATING TO MARRIAGE AND DIVORCE. 14. Foreign Marriages. 15. Marriages against Public Policy and Morality. 16. Incestuous and Polygamous Marriages. 17. Incestuous Marriages. Void or Voidable. 18. Who May Ask for Annulment of Voidable Marriage. 19. Marriage After Divorce Granted. 20. Marriage During Prohibited Period. 21. Protection of Injured Party and Offspring of Illegal Marriage. 22. Modern Legislation. 23. Conflict of Divorce Laws. 24. Full Faith and Credit Clause of the Federal Constitution. 25. Effect Same as in State where Judgment is Rendered. 26. Written Laws of Foreign Countries. How Proven. 14. Foreign Marriages. As a general rule, so far as concerns the form of the cere- mony, the validity of a marriage between persons domiciled in the jurisdiction in which the marriage is celebrated, or between persons not so domiciled, is governed by the law of the place where the marriage is celebrated, and if valid there it is valid everywhere. 1 But to entitle a marriage, performed according to 1. The following cases arranged ley, 3 A. K. Marsh (Ky.) 368; as to jurisdiction: Kleinke v. Noonan, 20 Ky. L. England. Brook v. Brook, 9 H. R. 305, 81 S. W. 241. L. Cas. 193. Maine. Hiram v. Pierce, 54 Me. Canada. Burocher v. Degre, 20 367. Quebec Sup. Ct. 456. Maryland. Redgrave, 38 Md. 93; United States. Patterson v. Jackson v. Jackson, 80 Md. 176, Gaines, 6 How. 550, 12 L. Ed. 82 Md. 17, 30 Atl. 752, 33 Atl. 553. 317. Alabama. Wall v. Williamson, Massachusetts. Medway v. Need- Ala. 48; Wells v. Thompson, 13 ham, 16 Mass. 167; Sutton v. Ala. 793. Warren, 10 Met. (Mass.) 452; California. Pearson v. Pearson, Commonwealth v. Lane, 113 51 Cal. 120. Mass. 458. Georgia. Eubanks v. Banka, 34 Michigan. Hutchins v. Kimmel, Ga. 415. 31 Mich. 126; Kobogum v. Iron Kentucky. Dumarsley v. Fish- Co. 76 Mich. 498; 43 N. W. R. 13 115 CONFLICT OP LAWS a custom of one jurisdiction, to be recognized in another, both parties must have been within the former jurisdiction at the time" of the celebration of the marriage. Thus, though Chinese custom and Chinese law are said to permit marriages by proxy, yet a Chinaman domiciled and actually in the United States, having married by proxy a girl in China according to the Chinese custom, the marriage was held invalid in the United States, although recognized as valid by Chinese law and cus- tom. 2 On the other hand, if a marriage is invalid in the jurisdiction in which it is celebrated, as a general rule it will be held invalid elsewhere. 3 But it has sometimes been held that this rule does not apply to nonresidents and temporary sojourners in the place where the marriage ceremony is performed, who marry with the intention of returning to the place of their residence. 4 15. Marriages against Public Policy and Morality. Where in one jurisdiction marriages between certain persons 602; People v. Loomis, 106 Mich. 250, 64 N. W. R. 18. Minnesota. McHenry v. Bracken, 93 Minn. 510, 101 N. W. R. 960. Missouri. Johnson v. Johnson, 30 Mo. 72 (Indian Marriage) ; Boyer v. Diveley, 58 Mo. 510 (Indian Marriage) ; LaRivi,er v. LaRivier, 97 Mo. (Indian Marriage), 10 S. W. R. 840. Nebraska. Gibson v. Gibson, 24 Neb. 394; Hills v. State, 61 Neb. 589, 85 N. W. R. 836. New Hampshire. True v. Ran- ney, 21 N. H. 52. New Jersey. Harral v. Harral, 39 N. J. Eq. 279; Clark v. Clark, 52 N. J. Eq. 650, 30 Atl. R. 81; Smith v. Smith, 52 N. J. L. 207, 19 Atl. R. 255. New York. Wolrich v. Freeman, 71 N. Y. 601. North Carolina. State v. Ross, 76 N. C. 242; State v. Behrman, 114 N. C. 797, 19 S. E. R. 220. Ohio. Evans v. Reynolds, 32 Ohio St. 163. Pennsylvania. Phillips v. Gregg, 10 Watts (Pa.) 158. Tennessee. Morgan v. McGhee, 5 Humph. (Tenn.) 13 (Indian Marriage). Vermont. State v. Shattuck, 69 Vt. 403, 28 Atl. 81. 2. In re Lum Lin Ying, 58 Fed. R. 682. 3. McDeed v. McDeed, 67 111. 545 (Minors) ; Simmonds v. Allen, 33 111. App. 512; Carrale v. Peo- ple, 177 111. 219 (Minors) ; Roche v. Washington, 19 Ind. 53; Blaisdell v. Brickum, 139 Mass. 250 (Uncle and niece) 1 N. E. R. 281; Hutchins v. Kimmell, 31 Mich. 126; Smith v. Woodworth, 44 Barb. (N. Y.) 198; Matter of Hall, 11 Atl. R. 21; Weinberg v. State, 25 Wis. 370. 4. Loring v. Thorndike, 5 Allen (Mass.) 257; Clark v. Clark, 52 N. J. Eq. 650 (Marriage per- formed in Indian Territory) 30 Atl. R. 81; Wilcox v. Wilcox, 46 Hun (N. Y.) 32. 14 i\ i:sTid( s AMI roi.yuA.Mors M Ai;i;iA<;i:s 16 are prohibited by public policy and the law as offensive to the morals and good order of society, siirh marriages. performed in another jurisdiction. will not be deemed valid therein, though they may be valid by the law of the state or country where they are celebrated, and though the parties to the marri- age are there domiciled. 5 In the state of Tennessee this rule has been applied to marriages between white persons and negroes.* The Tennessee rule, however, making marriages between white persons and negroes invalid, even though contracted in good faith, in a state or country where such marriages are per- mitted and are valid, does not seem to be followed in many of the states, nor in Christian nations in general. 7 16. Incestuous and Polygamous Marriages. While the rule upholding in one jurisdiction the validity of a marriage of nonresidents which is valid in the jurisdiction where it is celebrated, has been applied to marriages between persons who by reason of consanguinity or affinity are incom- petent to marry, 8 still if a marriage is incestuous or polygam- ous, according to the general opinion of Christendom, though valid in the jurisdiction where celebrated, it will not be held valid in those jurisdictions where such marriages are pro- hibited. 9 This exception to the general rule is a most salutary one and seems to have come into use for the necessary protection of society and good morals. Its operation and effect is upon the very foundation of society, public policy and morality. Without this beneficent exception, the Turk or Mohammedan. with his numerous wives, *might establish his harem at the very 5. Pennegar v. State, 87 Tenn. vania) ; State v. Brown, 47 Ohio 244. St. 109 (uncle and niece) ; Mar- 6. State v. Bell, 7 BaXt. tin v. Martin, 54 W. Va. 301, 1 (Tenn.) 9; Pennegar v. State, Am. & Eng. Ann. Cas. 612 (aunt 87 Tenn. 244; State v. Tutty, 41 and nephew). Fed. R. 753. 9. Campbelle v. Crampton, 2 7. State v. Ross, 76 N. C. 242; Fed. R. 426; Stimson v. Gage, 17 Pearson v. Pearson, 51 Cal. 120. Civ. Stat. S. C. (1893) Sec. 2157; 8. Greenwood v. Curtis, 6 1 Stimpson's American Statute Mass. 338; Button v. Warren, 10 B. Mon. (Ky.) 193; Jackson v. Met. (Mass.) 451 (aunt and Jackson, 82 Md. 29; Greenwood nephew). But see U. S. v. Rog- v. Curtis, 6 Mass. 358; Medway ers, 109 Fed. R. 886 (Russian v. Needham, 16 Mass. 157; Sut- marriage between uncle and ton v. Warren, 10 Met. (Mass.) niece held invalid in Pennsyl- 451; True v. Ranney, 21 N. H. 52. 16 17 CONFLICT OB LAWS doors of our Christian churches, and we would be without remedy. We might have among us a father living with his daughter, a son living with his mother, and a brother living with his sister, in lawful wedlock, because they had formed that relation in a country where such unions were lawful. 17. Incestuous Marriages. Void or Voidable. In England, and in many of the states of the Union, mar- riages between relations of the forbidden degrees are void. 10 In other states such marriages are treated as voidable only. 11 Whether inarriages of persons within the prohibited degrees of consanguinity are absolutely void or are merely voidable is frequently determined by statutory enactment. The earlier rule seems to have been that such marriages were voidable only, and could not be attacked except during the lifetime of the parties, and then only by the parties themselves or one of them. 12 In England, however, as early as 1835, such marriages were held to be null and void, and not merely voidable. 13 The early American cases quite generally held marriages within the prohibited degrees to be merely voidable. 14 But the modern tendency seems to be to hold such marriages void, and many states have adopted statutory regulations definitely establish- ing this rule. 15 In Michigan, all marriages which are prohibited on account of consanguinity or affinity between the parties are absolutely void without any decree of divorce or other legal process, but the issue of such marriages is deemed legitimate. 16 In New Hampshire, marriages between cousins are considered inces- tuous, and are held to be void without the necessity of any decree of divorce or other legal proceeding to terminate them. 17 In Pennsylvania it appears that such marriages are only void- 10. 19 Am. & Bng. Ency. of v. Deinzer, 45 N. J. Eq. 485; Bow- Law, 2nd Ed. 1175. ers v. Bowers, 10 Rich. Eq. (S. 11. Martin v. Martin, 54 W. C.) 551; Parker's Appeal, 44 Pa. Va. 301, 1 Am. & Eng. Ann. Gas. St. 309. ,. 612. 15. Stat. Ky. 1894, Sec. 2096; 12. Bowers v. Bowers, 10 Rich. Law, Sec. 6112. \ Eq. (S. C.) 551. 16. C. L. '15, (11392); Howell 13. Brook v. Brook, 9 H. L. (2nd Ed.) 11453. Gas. 233. 17. Hayes v. Rollins, 68 N. H. 14. Adkins v. Holmes, 2 Ind. 191, 44 Atl. R. 176; Blaisdell v. 197; Stevenson v. Gray, 7 B. Buckum, 139 Mass., 1 N. E. R. Mon. (Ky.) 215; Sutton v. War- 281, construing New Hampshire ren, 10 Met. (Mass.) 451; Boylan statute. 16 \\M I.MKNT OP VOIDAr.U: MARRIAGE- 18 able. 18 In Louisiana it 1ms hern held that although a marriage between a man and his niece is null and void, because con- tracted in violation of a law prohibiting such unions, yet where one of the spouses acted in good faith, it will have for certain purposes the effect of a legal marriage* so far as concerns such spouse and the issue of the marriage. 19 From these cases, and many more which might be cited, it clearly appears that the laws of the several states are widely (lillci-ent on the subject of whether certain marriages are void or only voidable. This condition of the law, and the conflicting statutory provisions of the several states, emphasize the neces- sity of general uniform rules by which it may be determined whether a particular marriage is valid, void or voidable. It seems to have been generally determined that the safest and best rule to follow, the one which will have the best effect for the protection of society and public morals, is to hold, subject to the exceptions already noted, that a marriage which is valid in the jurisdiction where it is solemnized is valid everywhere; that one which ie void by the law of the state where it is celebrated is void everywhere, and that one which is 'voidable merely by the law of the state where it is celebrated is valid everywhere until it is annulled by a tribunal of competent jurisdiction during the lifetime of the parties. 18. Who May Ask for Annulment of Voidable Marriage. There can be no doubt of the right of the injured innocent party to a voidable marriage to maintain an action for the annulment of such marriage. The difficulty arises when both parties entered into the relation 'knowingly. This difficulty presents itself most often, and perhaps only, in those cases where by the law of the jurisdiction where the marriage was celebrated the relationship of the parties is such that the marriage is prohibited, but still is not absolutely void, but merely voidable. Actions for the annulment of a voidable marriage, as well as divorce actions, are almost universally brought and disposed of in courts of equity or courts having equitable jurisdiction. It has often been stated, and it is a general rule, that one who comes into a court of equity, seeking the aid of the equitable power of the court, must come with 18. Person's appeal, 44 Pa. St. 19. Burssier's Succession, 41 309; Walter's Appeal, 70 Pa. St. La. Ann. 218; Revised Civil Code, 392. La. (1900) Art. 117-118. 17 118 CONFLICT Oli LAWS clean hands, and it would seem that this cannot be done when both parties are equally unclean. While the laws of the dif- ferent states are notably in conflict, as to the application of this rule to proceedings for the annulment of voidable mar- riages, the better and more reasonable view seems to be that such a case is an exception to the equitable^maxim above men- tioned. For instance, in Pennsylvania marriages between uncle and niece are prohibited, but such marriages are by the law of that state not absolutely void, but merely voidable. They are valid to a certain extent until annulled by a court of competent jurisdiction. By the laws of the state of Michigan such marriages are absolutely void without any decree of divorce or other legal process. But the marriage being lawful in the state where it was celebrated until it is annulled by a court of competent jurisdiction, it must be treated as valid for certain purposes everywhere so long as it remains not so annulled. Now, suppose a man marries his niece in the state of Pennsylvania, cohabits with her there, and then removes with her to the state of Michigan and they there acquire a domicile in good faith. If the marriage had been celebrated in Michigan it would be absolutely void, and cohabitation would subject the parties to a criminal prosecution, but being valid, until annulled in the state where it was celebrated, it must be so treated in Michigan. When the parties have acquired a domicile in the state of Michigan, in good faith, will a court of equity entertain a bill to annul the marriage on the appli- cation of one of them? This is a troublesome question, and on first impression it would seem that the equitable maxim above mentioned would demand an answer in the negative. But when we stop to con- sider that in all divorce and annulment cases there are at least three interested parties, the plaintiff, the defendant, and the public, a somewhat different view is presented. The parties are living in a relation not only unlawful according to the laws of the state where they reside, but abhorrent to good morals. Their influence and example is bad. Their lives are unclean. Neither can come before a court of equity with clean hands. But if one or even both of them desire to dissolve the unlawful and immoral relation ; if they desire to go and sin no more and not permit their uncleanliness and immorality to continue a stench in the nostrils of the public and a menace to public 18 MAKKIA!' many states declare marriage t<> be a civil conn-act, many of them recomii/c the relation existing between husband and wife as something above atul beyond ordinary contract relations. In Michigan the legislature has declared marriage to be a civil contract, to which the free consent <>r the parties contracting is essential, but, recognizing the marriage relation as embracing interests above those aris- ing from ordinary contracts, it provides rernedies against branding an innocent woman a concubine or harlet, and her children as bastards, in those cases where she has been so unfortunate as to enter into a relation which she honestly sup- posed was lawful. And even where the parties both enter into the marriage relation, "knowing that it is unlawful for them to marry, and that their marriage by the statute is made void, the issue of such relation is treated as legitimate, except only where one or both of the parties had a former husband or wife living at the time the unlawful marriage was celebrated. 31 23. Conflict of Divorce Laws. The divorce laws of the several states present a great variety of conflicting provisions. Proceedings which result in a valid divorce in one state or country may be absolutely void in many cases if had in another state or country. I ii this country the establishment of divorce laws and courts, as well as methods of procedure, is under the absolute control of each state, and every state in the Union, except South Carolina, has established cotirts, methods of procedure and grounds for divorce which are essentially different in each state. The Congress of the United States has no power to enact divorce laws in any of the states, but it has absolute power over divorce laws in the District of Columbia, the Phil- ippines, Guam and Alaska, which have no legislative bodies, and it has enacted such laws for Alaska and the District of 30. C. L. '15, (11394); Howell (2nd) 11453; In re Fitzgibbons' (2nd), 11455. Est. 162 Mich. 416-421, 127 N. W. 31. C. L. '15, (11392); Howell R. 313. 23 24 CONFLICT OF LAWS Columbia. The Congress has also supervisory power over divorce laws which may be enacted by the territorial legis- latures of Porto Rico and Hawaii. 24. Full Faith and Credit Clause of the Federal Constitution. The conflicting divorce laws of the several states and the different methods of procedure adopted make necessary some uniform rule by which the validity of divorce judgments may be determined. This uniformity is secured by the federal con- stitution, which provides that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." 32 Under this provision the courts of each state are bound to give full faith and credit to ' all valid judgments and decrees of the courts of every other state of the Union, but this requirement does not extend to the giving of validity to those proceedings which in themselves are mere nullities. It is fundamental in judicial proceedings that the court assuming to act and to render judgments must have competent authority to do so in the particular case, and when this authority is wanting, whatever is done is not judicial and cannot be protected by the Federal constitution. 33 And if the record, by its recitals, makes a prima facie case of jurisdiction, no one in another state or country is concluded thereby, but it may be shown what the real fact was, and thus disprove the authority for making such record. 34 25. Effect Same as in State where Judgment is Rendered. A judgment or decree of a court of one state, when sued upon, introduced in evidence, or pleaded in another state, is entitled to receive the same faith and credit that is accorded to it in the state where rendered, so that if valid and conclusive t 32. Constitution of the United 374; Thompson v. Emmert, 15, States, Art. IV. Sec. 1. 111. 416; Marx v. Force, 51 Mo. 33. Reed v. Reed, 52 Mich. 69, 11 Am. R. 200; Reel v. Elder, 117, 17 N. W. R. 720. 62 Pa. St. 308, 1 Am. R. 414; 34. Thompson v. Whitman, 18 Pennywit v. Foote, 27 Ohio St. Wall (U. S.) 457, 21 L. Ed. 897; 600, 22 Am. R. 340; Gilman v. Knowles v. Gas Light Co. 19 Gilman, 126 Mass. 26, 30 Am. R. Wall. (U. S.) 58, 22 L. Ed. 70; 646; Bowen v. Huston, 30 Grat. Barrett v. Knight, 1 Mass. 401, 2 266, 32 Am. R. 673; Eaton v. Am. Dec. 36; Shumway v. Still- Hasty, 6 Neb. 419, 29 Am. R. 365. man, 4 Cow. 292, 15 Am. Dec. 24 STATi: W 1 1 KICK .U IH; MEM' IS KKM'I'UKM in that state, it is valid and conclusive in all other states. 85 But a judgment from another Mate is entitled to no greater effect or final! I v ilian would be accorded to it in the state where it was rendered, and therefore, if it would there be inconclusive, impeachable, or reviewable, it will be awarded no greater con- sideration or. measure of finality in other states.- 10 The validity and Hlrct >l any judgment or judicial decree, therefore, must be determined by referring to the laws of the state where it was rendered, and for this purpose it is held in some of the states that the courts of one state will take judicial notice of 35. These cases arranged as to Jurisdiction : Connecticut. Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683. Georgia. Tompkins v. Cooper, 97 Ga. 633, 25 S. E. R. 247. Illinois. McFulton v. Long, 13 111. 486, 54 Am. Dect 449; Kim- mel v. Schultz, 1 111. 169; New- man v. Greely St. Bank, 92 111. App. 638. Indiana. Davis v. Lane, 2 Ind. 548, 54 Am. Dec. 458. Iowa. Miller Brewing Co. v. Capi- tal Ins. Co., Ill Iowa 590, 82 N. W. R. 1023, 82 Am. St. R. 529. Kansas. R. R. Co. v. Campbelle, 5 Kan. App. 423, 49 Pac. R. 321. Kentucky. Galloway v. Glenn, 105 Ky. 648, 49 S. W. R. 440, 20 Ky. L. R. 1447; Fletcher v. Ferris, 9 Dana 372, 35 Am. Dec. 143. Maine. Lambertson v. Grant, 94 Me. 508, 48 Atl. R. 127. Maryland. U. S. Bank ' v. Mer- chants Ban*, 7 Gill 415; Bren- gal v. McClellan, 7 Gill & J. 434. Massachusetts. Vanorman v. Gordon, 172 Mass. 576, 53 N. E. R. 267, 70 Am. St. R. 309, 44 L. R. A. 840. Missouri. Tootle v. Buckingham, 190 Mo. 183, 88 S. W. R. 610; Hudson v. Kimberley Pub. Co. v. Young, 90 Mo. App. 61. New Jersey. Gulick v. Loder, 13 N. J. X,. 68, 23 Am. Dec. 711; Gibbons v. Livingston, 6 N. J. L. 236; Orient Ins. Co. v. Ru- dolph, 61 Atl. R. 26. New York. Blacks Case, 4 Abb. Prac. R. 162; Green v. VanBus- kirk, How. Prac. R. 52. Ohio. Arndt v. Arndt, 15 Ohio 33; 'Pelton v. Pelton, 13 Ohio 209, 42 Am. Dec. 197. Pennsylvania. Levison v. Blum- enthall, 25 Phila. Supr. Ct. R. 55; Curran v. Rowley, 2 Pa. Co. Ct. R. 539; R. R. Co. v. Mercer, 11 Phila. 226. Virginia. Piedemont & Co. Life Ins. Co. v. Ray, 75 Va. 821; Bu- ford v. Buford, 4 Munf. 241, 6 Am. Dec. 511. Washington. Clark v. Ettinge, 38 Wash. 376, 80 Pac. R. 556. West Virginia. Wells-Stone Mer- cantile Co. v. Truax, 44 W. Va, 538, 29 S. E. R. 1006. Wisconsin. Parker v. Stoughton Mill Co. 91 Wis. 174, 64 N. W. R. 751, 51 Am. St. R. 881. In i ted States. Harris v. Balk, 192 U. S. 215, 25 Sup. Ct. R. 625, 49 L. Ed. 1023; Christina v. Russell, 5 Wall. 292, 18 L. Ed. 475; Mills v. Durye, 7 Cranch, 481, 3 L. Ed.. 411. 36. These cases arranged as to jurisdiction: Alabama. Peet v. Hatcher, 112 Ala. 514, 21 So. R. 711, 57 Am. St. R. 45. 25 525 CONFLICT OP LAWS the laws of another state. 37 But this doctrine is not generally adopted, and it appears to be directly in conflict with the decisions of the Supreme Court of the United States and those of the courts of last resort of most of the states. The better and i more consistent rule seems to be that the laws of a foreign state must be proved as facts, and if there is no evidence V)f the laws of the state where the judgment was rendered, the court where it is sought to be enforced will presume that those laws are the same as the laws of its own state, and will give effect to the judgment accordingly. 38 While, as we have seen, some of the state courts have held that in order to give effect to the full faith and credit clause, they will take judicial notice of the laws of other states, this view has been emphatically repudiated by the Supreme Court Arkansas. Barkman v. Hopkins, 11 Ark. 157. Connecticut. Wood v. Watkinson, 17 Conn. 500, 44 Am. Dec. 652. Illinois. Newman v. Greely St. Bank, 52 111. App. 638. Louisiana. Ahlefeldt, 105 La. 543, 30 So. R. 175; Bank of Commerce v. Mayer, 42 La. Ann. 1031, 8 So. R. 260; McLaren v. Kehler, 23 La. Ann. 80, 8 Am. R. 592; Tipton v. Mayfield, 10 La. 189. Maryland. Wernwag v. Pawling, 4 Gill & J. 500, 25 Am. Dec. 317. Nebraska. Gaster v. Currie, 94 N. W. R. 995. Pennsylvania. Bowersox v. Gitt, 12 Pa. Co. Ct. 81. Texas. Babcock v. Marshall, 21 Tex. Civ. App. 145, 50 S. W. R. 728. Wisconsin. Brown v. Parker, 28 Wis. 21. United States. Danville First Na- tional Bank v. Cunningham, 48 Fed. R. 510. 37. Peet v. Hutchins, 112 Ala. 514, 21 So. R. 711, 57 Am. St. R. 45; Rae v. Hulbert, 17 111. 572; Hull v. Webb, 78 111. App. 617; Butcher v. Bank, 2 Kan. 70, 83 Am. Dec. 446; Ohio v. Hinch- man, 27 Pa. St. 479; Paine v. Ins. Co. 11 R. I. 411; Trowbridge v. Spinning, 23 Wash. 48, 62 Pac. R. 125^ 54 L. R. A. 204. 38. The cases arranged as to jurisdiction : United States. Hanley v. Donog- hue, 116 U. S. 1, 6 Sup. Ct. R. 242, 29 L. Ed. 535; Chicago &c. R. R. Co. v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct. R. 398, 30 L. Ed. 519. Florida. Lammis v. Wightman, 31 Fla. 10, 12 So. R. 526. Illinois. Baltimore &c. R. R. Co. v. McDonald, 112 111. App. 391. Louisiana. Bank of Commerce v. Mayer, 42. La. Ann. 1031, 8 So. R. 260. New Jersey. Thompson v. Wil- liamson, 58 Atl. R. 602; Davis v. Headly, 22 N. J. Eq. 115. New York. People v. Dewey, 50 N. Y. Sup. 1013. Ohio. Pelton v. Platner, 13 Ohio 209, 42 Am. Dec. 197. South Dakota. Thomas v. Pen- dleton, 1 S. D. 150, 46 N. W. R. 180, 36 Am. St. R. 726. Wisconsin. Rape v. Heaton, 9 Wis. 328, 76 Am. Dec. 269. 26 WUITTKN LAWS OF FOKKKJN COUNTRIES 26 of the United States and the courts of last resort of many of the states. 89 26. Written Laws of Foreign Countries. How Proven. When the validity of a divorce judgment or decree granted in ;i foreign country comes in question it usually becomes nec- e>sai-y ii. ascertain what the statute law of that country is. ThN can he done only by proof of the statute law of such country ;is a fact. The method of proving such fact is deter- mined by the course pointed out by the laws of the jurisdiction where the question is raised. In the State of Michigan, printed- copies of the statute laws and resolves of any other of the United States, or of any terri- tory thereof, or of any foreign state, if purporting to be pub- lished under the authority of the respective governments, or if commonly admitted and used as evidence in their courts, shall be admitted in all courts and in all proceedings within the state as prima facie evidence of such laws and resolves. 40 The courts of Michigan do not take judicial notice of the laws of other states or of foreign countries. 41 Printed copies of the laws of foreign countries are prima facie evidence only, and 39. United States. Hanley v. Donog- hue, 116 U. S. 1, 6 Sup. Ct. R. 242, 29 L. Ed. 535. Florida. Sammia v. Wightman, 31 Fla. 10, 12 So. R. 520. Iowa. Taylor v. Runyan, 9 Iowa 522. Massachusetts. Knapp v. Abel, 10 Allen 485; Wright v. An- drews, 130 Mass. 149; Mowry v. Chase, 100 Mass. 79. Texas. 1 Gill v. Everman, 94 Tex. 209, 59 S. W. R. 531; Porchler v. Bronson, 50 Tex. 555. Wisconsin. Osborn v. Black- burn, 78 Wis. 209, 47 N. W. R. 175, 23 Am. St. R. 460, 10 L. R. A. 367; Rape v. Heaton, 9 Wis. 328, 76 Am. Dec. 269. See also, Walsh v. Dart, 12 Wis. 635; Hull v. Augustine, 23 Wis. 383; Pierce v. Chicago & N. W. R. R. Co.. 36 Wis. 283; Horn v. Chicago & N. W. R. R. Co., 38 Wis. 463; Keilam v. Toms, 38 Wis. 592, all of which follow the doctrine laid down in Rape v. Heaton. The Supreme Court of the United States recog- nizes the same rule in the fol- lowing cases: Lloyd v. Mat- thews, 155 U. S. 222, 15 Sup. Ct. R. 70, 39 L. Ed. 128; Chicago &c. R. R. Co., v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct. R. 398, 30 L. Ed. 519. 40. C. L. '15, (12513); Howell (2nd.) 12818. 41. Worthington v. Hanna, 23 Mich. 534; Great Western Ry. Co., v. Miller, 19 Mich. 305-314; Peo- ple v. Lambert, 5 Mich. 349; Ker- mott v. Ayer, 11 Mich. 183-4; Ellis v. Maxon 19 Mich. 186; Jones v. Palmer, 1 Doug. 379. CONFLICT OF LAWS will be treated as :nil henl ic until tin 1 contrary is shown. 42 Such l:i\vs may bo proven by exemplifications under the jjrcat BOO] <>f the si ale or foreign count ry, 4 " but not by pnrol, without showing;, why such eviilence is necessary. 44 The laws of another stale or country, jis shown by its stat- utes, are presumed to continue, unchanged until the contrary is shown. 45 A compilation of the statutes of another state commonly admitted in the courts and proceedings in that state as jn-ini(i fnrir evidence of its laws, may be used to prove such laws, though it is an unofficial publication. 40 It appears to be a well settled rule, both in (his country and in Kngland, that the courts will not. lake judicial cognizance of the written laws of a foreign country. 47 42. People v. Calder, 30 Mich 88; Wilt v. Cutler, 38 Mich. 189; Rice v. Rankans, 101 Mich. 378, f,!t N. W. R. 660. 43. People v. Calder, 30 Mich. 85. 44. People v. Lambert, 5 Mich. 349. 45. People v. Calder, 30 Mich. 88. . 46. People v. McQuaid, 85 Mich. 123, 48 N. W. R. 181. 47. The following cases ar- ranged as to jurisdiction: Alabama. Doe v. Eslava, 11 Ala. 1028. Arkansas. Cox v. Morrow, 14 Ark. 603. California. Wickersham v. John- ston, 104 Cal. 407, 38 Pac. R. 89, 43 Am. St. R. 118. Connecticut. Brackett v. Nor- ton, 4 Conn. 517, 10 Am. Dec. 179. Delaware. Thomas v. Grand Trunk Ry. Co., 1 Pennew. 593, 42 Atl. R. 987. Illinois. McCiirdy v. Alaska &c. Commercial Co., 102 111. App. 120; Dempster v. Stephen, 63 111. App. 126; Rand v. Conti- nental Mut. F. Ins. Co., 58 111. App. 665. Indiana. Coplinger v. The David Gibson. 14 Ind. 480. Iowa. Banco de Sonoro v. Bank- 28 ers Mut. Casualty Co., 95 N. W. R. 232; Bean v. Brlggs, 4 Iowa, 464. Louisiana. Kohn v. The Renais- ance, 5 La. Ann. 25, 52 Am. Dec. 527. Maryland. Baptiste v. De Wolun- brun, 5 Har. & J. 86. Massachusetts. Aslanian v. Dos- tumian, 174 Mass. 328, 54 N. E. R. 845, 75 Am. St. R. 348, 47 L. R. A. 495; Eastman v. Cros- by, 8 Allen 206 ; Palfrey v. Port- land &c. Ry. Co., 4 Allen 55. Michigan. Chapman v. Colby, 47 Mich. 46, 10 N. W. R. 74; Ker- mott v. Ayer, 11 Mich. 181; 1 Greenleaf Evidence, 15th. Ed. Sec. 486-8. Minnesota. Brimhall v. Van Campen, 8 Minn. 13, 82 Am. Dec. 118. Mississippi. Sessions v. Doe, 7 Sm. & M. 130. Missouri. Charlotte v. Chouteau, 25 Mo. 465; Chouteau v. Pierre, 9 Mo. 3. Nebraska. Moses v. Comstock, 4 Neb. 516. New Jersey. Campion v. Kille, 14 N. J. Eq. 229, 15 N. J. Eq. 476. Now York. Monroe v. Douglass, 5 N. Y. 447; Munroe v. Guil- leaume, 3 Abb. Dec. 334; Bates v. Virolette, 33 N. Y. App. Dlv. \\U1TI i:\ LAWS OP loKKliiN COIN i 436, 53 N. V. SUP Bl Ins. Oo \ Pra&d I \V.-nl. 64, I!' Am Dto, M'.I; Thompson v. K. tcham. .Johns, 286; HOB- frd v. Nichols, I Paigo 220. Oregon. si;it. v. Moy Look, 7 civ. 64. S.uitli Carolina. Mcl-Yo V. South Carolina Ins. Co.. 2 McCord Mn. Dec. 757. Trigg v. Moore. 10 Tex. 197; Hryant v. Kelton, 1 Tex. 434; Crosby v. Huston. 1 T, \ 203; Burton v. Anderson, 1 Vermont. McLeod v. Connecti- cut &c. 58 Vt. 727, 6 All. R. 648; Woodrow v. O'Con- nor. 28 Vt. 776; Peck v. I lib bard. LY, Vt. 698, f,2 Am. Dec. 606. rnit.Mi States. Coghland v. S. C. Ky. Co., 142 U. S. 101, 12 Sup. Ct. 160, 36 L. Ed. 951; I pool Ac. Steam Co. v. Phenix Co., 129 U. S. 397, 9 Sup. Ct. R. 469, 32 L. Ed. 788; l>ai \ llalc. !U I'. S. 13, I I'.tO; Ennis v. Smith, 14 How. 400, 14 L. Ed. 472; SI rot In T v Lucas, 6 Pet. 763, 8 L. Ed. 673; Church v. Huh hart. | Cranch IsT. L' I, Kd. I S. v. Mi-irnii. 4 Wash. WlI.nrKs v I'htllipS, 1 Wai. .Jr. 47; I'i. -re- r. liulseth, 106 U. S. 546, 27 L. Ed. 254. .ml. ivMo.lcM Case 8 Q. B. 208; Nelso v. Hridport, 8 Beav. 627, 10 Jur. 871; Millar v. Hen- rick, -I Catnpli. 1 ..... Cilos V. Hill. 1 Cainpli 171; Fyson v. Kemp, r, a *: i 1 . TI. 25 E. C. L. :::'i;: La. -on v HiKgin Stark. I . i \ I', r< liar.l. i i Liny. i v. Ouihert, L K. 1 I}. It. I I... Ill Lloy.l v (!ii!li-rl. Mr. .ln-tic.- Wil! delivering jinlminyii said: "In order to preclude all inisap|>r. hension, it may be well to add, that a party who relies upon a right or an exemption hy a t.-reiKii law is bound to hrlng in -h law propc-rJy beforo the Court, and to ,'slahlish It in proof. Otherwise the court, not heiiiK entitled to notice such law without judicial proof, must, proceed according to the law of England." Canada. Giles v. Qariepy, 29 L. C. Jur. 207. M CHAPTER III. VALIDITY OF FOREIGN DIVORCE AS DEPENDENT UPON JURISDICTION OVER DEFENDANT. 27. Scope of Subject Discussed. 28. Domicile of Both Parties in State of Forum. 29. Domicile of Neither Party in State of Forum. 30. Domicile of One Party in State of Forum. Personal Service on Other Party. 31. Same. Constructive or Substituted Service on Other Party. 32. Effect on Property Rights when Decree Granted on Constructive Service. 33. Right to Alimony. 34. Custody of Minor Children. Remarriage of Defendant. 35. Limited "Recognition. Interstate Comity. 36. Nonrecognition where no Personal Service is Had. 37. Same. Pennsylvania Rule. 38. Same. South Carolina Rule. 39. Rule in Federal Courts. Atherton v. Atherton and Haddock v. Haddock. 27. Scope of Subject Discussed. Continuing the subject of the conflict of laws on the subject of marriage and divorce, the purpose of this chapter is to dis- cuss the question of the validity of a divorce granted by a for- eign court, so far as its validity depends upon the jurisdiction which the court granting the decree acquired over the defend- ant, when such jurisdiction was exercised in the manner pro- vided by the law of the state in which the decree was granted. In other words, the important question in this connection is whether a court of competent jurisdiction, in which an action for divorce is instituted, having acquired jurisdiction over the defendant in the manner prescribed by the local law, has ac- quired such jurisdiction as entitles its decree of divorce to ex- tra-territorial recognition, assuming that the court has juris- diction of the subject-matter of the divorce, that it has juris- diction to grant a divorce at the suit of the plaintiff, that the divorce is granted for reasons entitling it to recognition extra- * territorially, and that the proceedings are regular. No difficulty or serious difference of opinion can arise as to 30 DOMICILE OF nOTLI PARTIES IN STATK some phases of this question. Thus, it is nowhere questioned that a foreign divorce is valid ;md entitled to extra-territorial recognition if botli of the parties^were domiciled within the territorial jurisdiction of the court granting the decree, whether the service on the defendant was actual or construc- livr. Nor has it ever been questioned that a foreign divorce is valid if granted against a non-resident defendant who was per- sonally served with process within the territorial jurisdiction of the court, or who entered an appearance in the action either in person or by attorney. It is eqally well settled that a for- eign divorce, based upon a constructive service, is invalid it neither of the parties were domiciled within the territorial jurisdiction of the court which granted the decree. The difficulty arises in those cases where the divorce is granted in favor of a plaintiff domiciled within the territorial jurisdiction of the court, and against a defendant domiciled in another jurisdiction. This latter question has given rise to such a decided difference of opinion that the authorities seem to be in hopeless and unreconcilable conflict. 28. Domicile of Both Parties in State of Forum. Where both parties have their domicile in the same state a decree of divorce granted by a court of competent jurisdiction in that state, founded upon personal service, is valid and en- titled to recognition in every other state. 1 In the state of New York it is held that a decree of divorce granted by the courts of another state in favor of a citizen there domiciled, and against a domiciled citizen of the same state, founded upon substituted service of process made in the manner authorized by the law of that state in the case of absent defendants, is valid in pcrsonam so as to effect a disso- lution of the marriage contract, and is conclusive upon the de- fendant in the courts of another state, though, during the pro- ceedings, he was not in the territorial jurisdiction of the court which granted the decree, and did not enter an appearance in the case. 2 This is upon the principle that the court which granted the decree had jurisdiction of both the subject matter 1. Barber v. Root, 10 Mass. Lacey v. Lacey, 77 N. Y. Supp. 260. 235; Campbelle v. Campbelle, 90 2. Hunt v. Hunt, 72 N. Y. Hun (N. Y.) 233, 35 N. Y. Supp. 217; Matter of Dennick, 92 Hun ^80; Matter of Morricon, 52 Hun (N. Y.) 161, 36 N. Y. Supp. 518; (N. Y.) 102, 5 N. Y. Supp. 90. 31 29 VALIDITY OF FOREIGN DIVORCE * _ and the parties to the suit, and the decree therefore is a judg- ment entitled under the Federal constitution to full faith and credit in every other state. 3 Such divorce is not only a bar to an action subsequently brought by the defendant in another state, but a subsequent marriage by the plaintiff'is valid, not only in the state where the divorce was granted, but in every other state. 4 In Atherton v. Atherton, 155 N. Y. 129, 49 N. E. K. 933, where a divorce was granted in Kentucky to a husband whose wife had abandoned him and removed to the state of New York, the court refused to recognize its validity for the reason that only constructive service had been made upon the wife, and a divorce was granted to her upon her petition, but on appeal to the Supreme Court of the United States, the de- cree was reversed, that court holding that the decree of the Kentucky court was entitled to full faith and credit in the state of New York. 5 29. Domicile of Neither Party in State of Forum. A decree of divorce upon constructive service alone, granted by the court of a state in which neither party is domiciled and where there is no appearance of the defendant, either in per- son or by attorney, will not be recognized in other states. 6 This is also true of a divorce granted in a foreign country, 7 and such- a divorce cannot be set up as a bar to an action for divorce brought by the original defendant in the state where the parties are domiciled. 8 Nor does the decree bar an action for divorce brought by the original defendant and based upon the ground that the original plaintiff committed adultery by 3. Hunt v. Hunt, 72 N. Y. 217. 75 Minn. 433, 78 N. W. R. 108; 4. Matter of Dennick, 92 Hun Magowan v. Magowan, 57 N. J. (N. Y.) 161, 36 N. Y. Supp. 518. Eq. 322, 42 Atl. 330; Streitwolf 5. Atherton v. Atherton, 181 v. Streitwolf, 181 lT. S. 179, 45 U. S. 155, 45 L. Ed. 794, 21 Sup. L. Ed. 807, 21 Sup. Ct. 553; Bell Ct. 544. v. Bell, 181 U. S. 175, 45 L. Ed. 6. Leith v. Leith, 39 N. H. 804, 21 Sup. Ct. R. 551; Wright 20; People v. Dawell, 25 Mich. v. Wright, 24 Mich. 180; Smith 247; Sewall v. Sewall, 122 Mass. v. Smith, 19 Neb. 706, 28 N. W. 150, 23 Am. R. 299; Litowitch v. R. 296; Prosser v. Warnes, 47 Litowitch, 19 Kan. 451, 27 Am. Vt. 667. R. 145; Van Fossen v. State, 37 7. De Meli v. De Meli, 120 N. Y. Ohio St. 317, 41 Am. R. 507; 485, 24 N. E. 946; St. Sure v. Gregory v. Gregory, 78 Me. 187, Lindsfelt, 82 Wis. 346, 52 N. W. 57 Am. R. 792; Dunham v. Dun- 308. ham, 162 111. 589, 35 L. R. A. 70, 8. Bell v. Bell, 181 U. S. 175, 44 N. E. 841; Thelen v. Thelen, 45 L. Ed. 804, 21 Sup. Ct. R. 551; 32 DOMICILE OF (>\i: I'AKTV IN STATE 30 ' remarrying, and if after such a divorce the original defendant should remarry, the decree would be no defense to a prosecu- tion for open and notorious fornication, or lewd and lascivious cohabitation. 8 A decree of divorce rendered under such cir- cumstances is not entitled to recognition in other states under the Federal constitution. 10 30. Domicile of One Party in State of Forum Personal Service on Other Party. Where an action for divorce against a non-resident is insti- tuted in a state court of competent jurisdiction, personal ser- vice on the defendant gives the court jurisdiction over his per- son, empowering it to grant a divorce which will be valid, not only in that state, but in every other state of the Union, 11 and in such case the decree will be valid, though there may have been no personal service of process, if the defendant enters an appearance in the case, either in person or by attorney. 12 Although a divorce, by reason of service by publication only, may be ineffectual as to a non-resident defendant, he will be bound by a supplementary decree on motion of the plaintiff, rendered against him for alimony already accrued under the original decree if he has appeared and contested the motion. 18 A decree of divorce, rendered by a state court of competent jurisdiction against a non-resident defendant upon whom no service has been had but who has appeared in the case, will be entitled to protection and must receive recognition in every other state under the full faitli and credit clause of the Fed- eral constitution. But where there is a statute in the state of the hubsand's domicile providing that where a decree of di- vorce is granted a wife for the wrong of the husband she shall Strait v. Strait, 3 McArthur, (D. Ohio St. 646, 11 N. E. R. 118. C.) 415; Hoffman v. Hoffman, 46 12. Cheever v. Wilson, 9 Wall. N. Y. 30; Smith v. Smith, 19 Neb. (U. S.) 108, 19 L. Ed. 604; Jones 706, 28 N. W. R. 296. v. Jones, 108 N. Y. 415, 15 N. E. 9. Hood Y. State, 56 Ind. 263. U. 707; Rigney v. Rigney, 127 10. Hood v. State, 56 Ind. 263; N. Y. 408, 24 N. E. R. 405; Rich Wright v. Wright, 24 Mich. 180; v. Rich, 88 Hun (N. Y.) 566, 34 Van Inwagen v. Van Inwagen. N. Y. Supp. 845; Arrington v. 86 Mich. 339, 49 N. W. R. 50; Arrington, 102 N. C. 491, 9 S. E. Bear v. Heasley, 98 Mich. 315; R. 200; Bidwell v. Bidwell, 139 N. 57 N. W. R. 270; People v. Dawell, C. 402, 52 S. E. R. 55. 25 Mich. 247; McEwan v. Zim- 13. Lynde v. Lynde, 162 N. Y. mer, 38 Mich. 765. 405, 56 N. E. R. 979. 11. McGill v. Deeming, 44 33 ' 31 VALIDITY OF FOREIGN DIVORCE be entitled to dower, an absolute divorce granted the wife on that ground in another state, founded upon personal service upon the husband, entitles her to dower in his real property located in the state of his domicile, and this though she mar- ries another man after the divorce and before her first hus- band's death. 14 31. Same. Constructive or Substituted Service on Other Party. There seems to be\a hopeless and irreconcilable conflict of authority in this country on the subject of the validity of a divorce granted a resident against a non-resident, where only constructive or substituted service lias been made. 14a In a number of states the rule seems to be that where the statutes of a state provide that a divorce may be granted in that state in proceedings instituted by constructive service, a divorce so granted to a plaintiff who has a bona, fide domicile therein, against a non-resident defendant, if valid there is equally valid in every other state, so far as the dissolution of the marriage relation is concerned, notwithstanding the fact that the de- fendant was not served with process personally and had no knowledge of the proceedings. 15 And this appears to be the 14. McGill v. Deming, 44 Ohio ' 589, 44 N. E. R. 841. St. 645, 11 N. E. R. 118. v Indiana. Hilbish v. Hattle, 145 14a. The cases on both sides Ind. 59, 44 N. E. R. 20. of this question are very numer- Iowa. Wakefield^ v. Ives, 35 Iowa ous. The question is exhaustive- 238 ; Van Orsdall v. Van Orsdall, ly discussed in the cases of Ather- 67 Iowa 35, 24 N. E. R. 579. ton v. Atherton, 181 U. S. 155, Kansas. Chapman v. Chapman, 45 L. Ed. 794,- 21 Sup. Ct. R. 544, 48 Kan. 636, 29 Pac. R. 1071; and in Haddock v. Haddock, 201 Rodgers v. Rodgers, 56 Kan. U. S. 561, 50 L. Ed. 867, and many 483, 43 Pac. R. 779; Roe v. Roe, of the leading authorities on both 52 Kan. 724, 35 Pac. R. 808. sides of the question are cited. Kentucky. Hawkins v. Ragsdale, 15. The following cases ar- 80 Ky. 353. ranged as to jurisdiction: , Louisiana. Benton's Succession, Alabama. Thompson v. State, 106 La. 494, 31 So. R. 123; Ala. 12; Thompson v. Thomp- Smith v. Smith, 43 La. Ann. son, 91 Ala. 591, 8 So. R. 419. 1140, 10 So. R. 248. California. Matter of Newman, Maine. Handing v. Alden, 9 Me. 75 Cal. 213, 16 Pac. R. 887; Mat- 140. ter of James, 99 Cal. 374, 33 Maryland. Garner y. Garner, 56 Pac. R. 1122. Md. 127. Illinois. Knowlton v. Knowlton, Minnesota. Thurston v. Thurs- 155 111. 158, 39 N. E. R. 595; ton, 58 Minn. 279, 59 N. W. R. Dunham v. Dunham, 162 111. 1017. 34' EFFECT OF PROPERTY RIGHTS 32 rule though the state in which the divorce is granted is not i lie state in which the- marriage was .celebrated. 10 This rule has been applied to a husband who removed in good faith from the slate \vhere the marriage was celebrated to the state where the decree was granted, for the bona fide purpose of residing there, 17 and to a divorce obtained by a wife who separated from her husband for adequate cause, and removed in good fa i tli from the state where her husband resided to the state where the divorce was granted, with the intention of making that state her permanent residence. 18 The true principle upon which divorces are sustained, which are granted in other jurisdictions against non-resident defend- ants constructively served, appears to be that a proceeding to dissolve the marriage relation is a proceeding in rem, the mar- riage status being the re*. 10 32. Effect on Property Rights when Decree Granted on Con- structive Service. Those cases which sustain divorces granted against non-resi- dent defendants constructively served, and holding that such divorces operate to dissolve the marriage relation, not only in the state where granted but in every other state, are not en- tirely harmonious as to the extra-territorial effect of the de- cree upon the property rights of the parties. Some of the cases hold that while a decree of divorce rendered against a Missouri. Gould v. Crow, 57 Mo. Crow, 57 Mo. 200; Doerr v. 200; Anthony v. Rice, 110 Mo. Forsythe, 50 Ohio St. 726, 35 N. 223, 19 S. W. R. 423. E. R. 1055; Ditson v. Ditson, 4 Ohio. Doerr v. Forsythe, 50 Ohio 58 Minn. 279, 59 N. W. R. 1017. St. 726, 35 N. E. R. 1055. R. I. 87; Thomas v. King, 95 Rhode Island. Ditson v. Ditson, Tenn. 60, 31 S. W. R. 983. 4 R. I. 87. 17. Thompson v. Thompson, 91 Tennessee. Thorns v. King, 95 Ala. 591, 8 So. R. 419; Van Ors- Tenn. 60, 31 S. W. R. 983. dall v. Van Orsdall, 67 Iowa Wisconsin. Shafer v. Byshnell, 35, 24 N. W. R. 579; Roe v. Roe,52 24 Wis. 372; Cook v. Cook, 56 Kan. 724, 35 Pac. R. 808; Gould Wis. 195, 14 N. W. R. 33, 443, v Crow, 57 Mo. 200; Doerr v. 16. Thompson v. Thompson, 91 Forsythe, 50 Ohio St. 726, 35 N. Ala. 591, 8 So. R. 419; Matter of E. R. 1055. James, 99 Cal. 374, 33 Pac. R. 18. Dunham v. Dunham, 162 1122; Knowlton v. Knowlton, 155 111. 589, 44 N. E. R. 841; Chap- Ill. 158, 39 N. E. R. 595; Van man v. Chapman, 48 Kan. 636, Orsdall v. Van Orsdall, 67 Iowa 29 Pac. R. 1071. 35, 24 N. W. R. 579; Roe v. Roe, 19. Matter of Newman, 75 Cal. 52 Kan. 724. 35 Pac. R. 808; Hard- 213, 16 Pac. R. 887; Dunham v. ing v. Alden, 9 Me. 140; Gould v. Dunham, 162 111. 589, 44 N. E. R. 35 33 VALIDITY OF FOREIGN DIVORCE non-resident defendant, founded upon service by publication only, determines the status of the parties, it does not by its own force affect the right to property in other states. 20 Thus a divorce based upon constructive service procured by a hus- band in one state does not cut off his wife's dower right in property located in another state which is the state of her res- idence. 21 On the other hand it has been held that such a decree of divorce not only dissolves the marriage, but cuts off the wife's dower right or the husband's curtesy, as the case may be, even as to land located in other states. 22 33. Right to Alimony. As to the extra-territorial effect upon the right to alimony of a divorce granted upon constructive service, the decided cases are more harmonious. The proceeding not being in per- sonam, such a divorce wheri rendered against the wife does not preclude her from recovering alimony in an appropriate pro- ceeding instituted by her in the state of her residence. 23 And on the same principle a decree of divorce based upon construc- tive service, which undertakes to award alimony, has no extra- territorial effect as to alimony, 24 and a wife who has obtained a decree of divorce and alimony in a proceeding in a state other than that of her husband's domicile, in which only con- structive service was had, may maintain an independent ac- tion against her husband for alimony in the state of his resi- dence. 25 34. Custody of Minor Children Remarriage of Defendant. A decree of divorce based only upon constructive service has no extra-territorial effect so far as it attempts to fix and determine the custody and control of the minor children of 841; Gould v. Crow, 57 Mo. 200; Tenn. 60, 31 S. W. R. 983. Thomas v. King, 95 Tenn. 60, 31 . 23. Rogers v. Rogers, 56 Kan. S. W. R. 983; Ellison v. Martin, 483, 43 Pac. R. 779; Thurston v. 53 Mo. 575. Thurston, 58 Minn. 270, 59 N. 20. Hawkins v. Ragsdale, 80 W. R. 1017. Ky. 353; Thurston v. Thurston, 24. Gould v. Crow, 57 Mo. 200; 21. Doerr v. Forsythe, 50 Ohio Eldred v. Eldred, 62 Neb. 613, St. 726, 35 N. E. R. 1055. 87 N. W. R. 340. 22. Hiblish v. Hattle, 145 Ind. 25. Eldred v. Eldred, 62 Neb. 59, 44 N. E. R. 20; Gould v. Crow, 613, 87 N. W. R. 340; Cox v. Cox, 57 Mo. 200; Thomas v. King, 95 19 Ohio St. 502. 36 LIMITED RECOGNITION i'.'~> tin- parties,-" ;mi one of the parties on oath as to the legality of the intended marriage, and such persons are authorized to administer oaths for that purpose. 5 While the neglect of the magistrate or minister to comply with this provision of the statute probably would not invalidate the marriage, especially if it should ! followed by the parties to the marriage living and cohabiting together as husband and wife and certainly would not las tardize the offspring of such marriage, still, for his own protection, the magistrate or clergyman always should ol>- serve this requirement strictly according to the statute. 6 49. No Particular Form of Ceremony Required. In solemnizing marriages in Michigan no particular form of ceremony is required to be used, except that the parties must solemnly declare, in the presence of the officiating magistrate or clergyman and the attending witnesses, that they take each other as husband and wife, and there must be at least two witnesses to the marriage besides the officiating magistrate or clergyman. 7 50. Common Law Marriages. The marriage relation may be established without any 4. People v. Lambert, 5 Mich. 5. C. L. '15, (11369) ; Howell, 349. (It is no defense to a charge 2nd. Ed. 11430. of bigamy that the second mar- 6. Bonker v. People, 37 Mich, riage was between a negro and a 10. white woman and void under the 7. C. L. '15, (11370) ; Howell, statute) : People v. Brown, 34 2nd. Ed. 11431. Mich. 339. 49 4:7 MODE OF SOLEMNIZING MARRIAGES actual, formal ceremony by a magistrate or clergyman, if the parties are competent to marry and agree to take each other as husband and wife, and such agreement is followed by con- tinued cohabitation as such. 8 In the case of Peet v. Peet, 52 Mich, at page 467, Justice Cooley, who wrote the opinion, says: "But an actual cere- mony of marriage is not essential to the establishment of the relation of husband and wife; it is sufficient that a man and woman of due competency, in respect to whom no impediment exists, consent to take each other as husband and wife and actually cohabit as such. The case of Hutchins v. Kimmell, 31 Midi. 126, 18 Am. R. 164, determines this for this state, and refers to manv decisions in other states, to the same / effect." 9 But where a man and woman agreed to live together as man and wife, and by the terms of such agreement each party retained the right to control and dispose of his or her own property without question by the other, it was held by a majority of the Supreme Court that the relation of the parties was that of concubinage and not a valid marriage, although the agreement was followed by continued cohabitation for a considerable time. Justice Morse dissented from the opinion of the majority of the court, and contended that the written agreement between the parties was a valid contract of mar- riage, and, being followed by cohabitation, established a valid marriage. 10 The written agreement entered into between the parties did not contain a declaration of the parties that they agreed to take each other as husband and wife, but that they agreed "to live together as man and wife." Where the relationship otf a man and woman living together is illegal in its commencement, it is presumed to continue illegal until a changed relationship is proved. Subsequent actual marriage will not be presumed from continued cohabi- tation/and reputation after the legal impediment to entering into such a contract is removed. 11 8. Peet v. Peet, 52 Mich. 467; 9. Peet v. Peet, 52 Mich. 467. Hutchins v. Kimmell, 31 Mich. 10. Clancy v. Clancy, 66 Mich. 126: Williams v. Kilburn, 88 202, 33 N. W. 889. Mich. 279; Flannagah v. Flanna- 11. Rose v. Rose, 67 Mich, gan, 122 Mich. 387; Knights of 619, 35 N. W. 802; Van Dusan v. Maccabees v. McAllister, 132 Van Dusan, 97 Mich. 70, 56 N. Mich. 69. W. 234. 50 rr.\isiiMi:vr FOR r.\.\rTi[oi;r/.i-:n MAI; IMAGES 51 51. Punishment for Unauthorized Marriages. The statute provides thai "il' any person sliall undertake to join others in marriage, knowing; that he is not lawfully authorized to do so, or knowing of any legal impediment to the proposed marriage, he shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by imprison- ment in the county jail not more than one year, or by line not less than fifty nor more than live hundred dollars, in the dis- ret ion of the court." 12 ' This si ;i I ute applies to a marriage where either of the parties is under the age of consent. The fact that the mar- riage is prohibited by the statute, by reason of one or both of the parties being under the age of consent, is no defense to a prosecution under this section. Such marriage is not abso- lutely void, but only voidable at the option of the incompetent party. In the case of Bonker v. People the charge made in the information was that the respondent, "being then and there a justice of the peace of said township and in and for said county, unlawfully did undertake to join in marriage Frank Bogart and Ann Eliza Davis, she, the said Ann Eliza Davis. being then and there a female under the age of sixteen years, to-wit: of the age of thirteen years, and not capable in law of contracting marriage ; and the age of said Ann Eliza Davis be- ing then and there a legal impediment to the said proposed mar- riage, he, the said William Bouker, then and there and at the time he undertook to join the said Frank Bogart and the -;iM Ann Eliza Davis in marriage, well knowing that the said Ann Eliza I>avis was then and there a female under the a-' of sixteen years." On behalf of the respondent it was con ten < I. -.1 that an "impediment" within the meaning of the statute is only that which absolutely precludes the marriage being formed, such as relationship within the prohibited degree or a previous marriage not dissolved, and that as a marriage of a party under the age of consent would not be void, but only voidable, the want of legal age of consent would not constitute an impediment to the marriage. In considering this question the Supreme! Court say: "This argument would apply equally well to a marriage accom- plished by force or fraud, such marriages being voidable only, and would protect a magistrate though the facts were all 12. C. L. '15, (11372) ; Bonker v. People, 37 Mich. 4. 51 52 MODE OF SOLEMNIZING MARRIAGES > known to him. We doubt the validity of this argument, and should be inclined to hold that whatever is in the way of a valid marriage must be understood to constitute such 'an impediment as the statute has in viewl The statute authorizes certain marriages and does not authorize others; it points out what should prevent or impede them. But it is not necessary to rest the case upon this view, for when the statute does not authorize a certain marriage, the magistrate cannot be 'au- thorized' to join the persons in marriage. The age of consent in a female is fixed by the statute at sixteen years; and though the law, in view of the serious consequences which might fol-' low from treating all marriages void where one of the parties is under the age of consent, holds them voidable only, it never- theless does not authorize them. Like a fraudulent marriage they are unauthorized, for consent is the first requisite in marriage, and in this case the capacitv to consent is withheld by law." 13 52. Want of Authority of Magistrate or Clergyman. Marriages solemnized before any person professing to have authority to act in such capacity are not deemed void for want of jurisdiction or authority in such person if the mar- riage is consummated, with a full belief on the part of the parties so married or either of them, that they have been lawfully joined in marriage. 14 53. Denominational Rites. The statute, so far as it relates to the manner of solemniz- ing marriages, does not affect marriages among Quakers, nor marriages among people of any other denomination having, as such, any peculiar mode of solemnizing marriages. 15 13. Bonker v. People, 37 Mich. 2nd. Ed. 11434. 4. 15. C. L. '15, (11374) ; Howell, 14. C. L. '15, (11373); Howell, 2nd. Ed. 11435. 52 CHAPTER VI. PROOF OF .MARRIAGE. 54. Certificates and Licenses as Evidence. 55. Record of Marriages Continued. 56. Duty of County Clerk. 57. Marriage Licenses. 58. Affidavit of Party Applying for License. 59. Duties of County Clerk. 60. Duty of Magistrate or Clergyman. 61. Penalties for Violation. 62. Record as Evidence. 63. Marriages to Protect Reputation. 64. Application For a License Form of Application. 65. Judge of Probate to File Papers Inspection of Record. 66. Privilege Penalties for Divulging or Publishing, Etc. 54. Certificates and Licenses as Evidence. "The original certificate and records of marriage made by a minister or a justice, as prescribed in this chapter, and the record thereof made by the county clerk, or a copy of such record duly certified by such clerk, shall be received by all courts and places as presumptive evidence of the fact of such marriage." 1 55. Record of Marriages Continued. All persons authorized by law to solemnize marriages in this slate are required by statute to make a record of such marriage so solemnized by them, and every clerk or keeper of the records of the meetings in which any marriage among Friends or Quakers shall be solemnized, is also required to make a record of such marriage, together with all of the facts relating to the same. They are also required to deliver on Iciiuind to 'ithor of the parties so joined in marriage a cer- tificate of such marriage, containing all of the facts in relation thereto. Within ninety days after such marriage a certified copy of such certificate must be delivered to the clerk of the 1. C. L. '15, (11375); Howell, 2nd. Ed. 11436. 53 56 PROOF OP MARRIAGE county in which such marriage took place and a fee of twenty- five cents paid for recording the same. 2 If the certificate signed by the officiating magistrate or minister is filed with the county clerk within the time inquired by the statute, it is competent evidence of the fact of marriage without proof of the signature of the officiating magistrate or minister; but if not filed within that time other evidence of the marriage must be produced. 3 56. Duty of County Clerk. It is the duty of the county clerk, on receiving the certificate of such marriage, to record the same at length in a book to be provided at the expense of the state, by the secretary of state. , Such book must be properly indexed, using the names of both parties to the marriage, and the marriages numbered and recorded in the order in which the certificates are received. The record of marriages must state, in separate columns, the t Christian and surnames of the bridegroom and bride, the maiden name of the bride if a widow, the color, age and place of birth of each, the residence of each at the time of the mar- riage, the occupation of the bridegroom, and the name and official status of the persons by or before whom the}* were married; the name and residence of at least two witnesses present at such marriage, and the date when such record was made. 4 The record of marriages is not regarded in law as the best evidence of the fact, and, except in criminal cases and actions 2. C. L. '15, (5613) ; Howell, office until March 22, 1889, while 2nd. Ed. 1556; Pub. Acts 1905, the trial was in progress. It Page 508, as to registration of was conceded that the justice was births. dead and no evidence was offered 3. People v. Etter, 81 Mich. showing his hand writing. The 570. This was a prosecution for Supreme Court held that if the carnal knowledge of a girl -under paper had been filed with the the age of consent, and as bear- county clerk within ninety days ing on the age of the girl the after the marriage, as the statute prosecution was permitted to put required, it would have been in evidence what purported to be competent evidence, but to al- a certificate of the marriage of low it to be brought in after such the girl's father and mother, pur- a lapse of time was not permis- porting to have been made by the sible and it should have been ex- justice who performed the mar- eluded. riage ceremony. The certificate 4. C. L. '15, (5613); Howell, bore date December 17, 1873, but 2nd. Ed. 1557. was not filed in the county clerk's 54 M. \KKI\CI; i.ici:.\si:s 57 for seduction or criminal con\ ersai inn. tin- marring' may he proved by other e\ idence, such as Ilia) the parlies have jointly signed papers in that relation, have lived together .is husband and wile and raised a family, have treated each other on all occasions as husband and wife, are accustomed to address each other as such, and were so regarded by their family, relatives, friends, ami neighbors. 5 In actions involving adultery, seduction, or criminal conver- sation, the criminal intercourse must be substantially averred and there must be proof of an actual marriage. Tn such cases proof of general reputation, or that the parties were accus- tomed to address each other as husband and wife, is not snf- ficient." 57. Marriage Licenses. It is necessary for all parties intending to be married in Michigan to obtain a marriage license from the county clerk of the county in which one of the parties resides, and to deliver such license to the magistrate or clergyman who is to officiate, before the marriage ceremony can be performed. If neither of the parties to be married reside in this state, it is necessary to procure such license from the county clerk of the county in which the marriage ceremony is to be performed. 7 The secretary of state is required to prepare and furnish to tile several county clerks of the state, blank forms for mar- riage license and certificate, also books of registration. The blank forms for license and certificate must be made in dupli- cate, and provide space for the entry of the full name, age, color, place of residence, place of birth, occupation, and, if kno\\i,. the father's name and mother's maiden name of both of the parties to be married, the number oftftimes either of the parties may have been previously married, the bride's maiden name in case she is a widow, the date of giving the license, the names and residences of two witnesses to the marriage, and the certification of the officiating clergyman or magistrate that the marriage contemplated by the license has been performed by him. 8 5. Proctor v. Bigelow, 38 Mich. 7. C. L. '15, (11376) ; Howell, 282. 2nd. Ed. 511437. 6. Perry v. Lovejoy, 49 Mich. 8. C. L. '15. (11377); Howell, 529, 14 N. W. 485; Hutchins v. 2nd. Ed. 11438. Kimraell, 31 Mich. 126. 55 58 PROOF OF MARRIAGE 58. Affidavit of Party Applying For License. The party applying for a license to marry must cause an affidavit to be made and filed with the county clerk containing the necessary allegations, under the laws of this state, of the competency of the parties to unite in the bonds of matrimony. Such affidavit, 'together with the license, is made a matter of record in the county clerk's office. 9 i 59. Duties of County Clerk. The county clerk is required to fill out the blank spaces of the license according to the sworn answers of the applicant taken before him or some person duly authorized by law to administer oaths. If the application is for the marriage of a female who has not attained the age of eighteen years, it is the duty of the county clerk to whom such application is made to require the written consent of one of the parents of such female, or of her legal guardian, to the marriage of such female and to the issuing of the license for which application is made, unless such female have no parent or guardian living. Such written consent is required to be preserved on file in the office of the county clerk. The county clerk is entitled to a fee of fifty cents for his services, and he is required to make a correct copy of the affidavit and license in the book of registration of marriages. The license, together with the blank form of certificate, must be delivered by the applicant to the clergyman or magistrate who is to officiate at the marriage. After the marriage has been solemnized, the clergyman or magistrate who officiated must return the license, with his certificate that the marriage has been performed, and the clerk must record in the book of registration of marriages the names and residences of the witnesses to the marriage and the name of the officiating clergyman or magistrate. All such licenses and certificates must be preserved on file in the office of the county clerk, and as often as once in three months the clerk is required to make a report to the secretary of state of all licenses and certificates issued by him since his last report. 10 The marriage license and the certificate of the officiating magistrate or clergyman, and the record thereof in the office of the county clerk, are public records. They are open to 9. C. L. '15, (11377) ; Howell, 10. C. L. '15, (11378) ; Howell, 2nd. Ed. 11438. 2nd. Ed. 11439. 56 PHXALT1ES FOU VIOLATION 61 inspection for any lawful purpose and the clerk has no right to withhold them. Mandamus will lie by the publisher of a newspaper to require him to permit reporters of the paper to examine them, and he has no discretion to withhold them from inspection when, in his opinion, publication of their contents is undesirable. 11 All oflicers having the custody of any county, city, township, town, village, school district, or other public records, are required by statute to furnish proper and reasonable facilities for the inspection and examination of the records and files in their respective offices, and for making memoranda and tran- scripts therefrom during the usual business hours, to all persons having occasion to examine them for any lawful pur- pose. The custodian of such records may make such reason- able rules and regulations with reference to such inspection and examination as shall be necessary for the protection and preservation of such records and files, and to prevent inter- ference with the regular discharge of the duties of his office. The use of pen and ink in making memoranda, copies or notes of such records and files, is prohibited by statute. 12 60. Duty of Magistrate or Clergyman. The magistrate or clergyman who officiates at any marriage is required to fill out the blank spaces of his certificate and return, stating the name and residence of two witnesses over his own signature in certification that the marriage has been performed by him. Such magistrate or clergyman must sep- arate the duplicate license and certificate and retain one half for his own record and return the other half to the county clerk issuing the same within ten days after the marriage. 13 61. Penalties for Violation. Any county clerk who refuses to give a license to persons property applying and legally entitled to be married, or who shall violate any of the provisions of the statute in relation to marriages, shall be adjudged guilty of a misdemeanor and on conviction may be punished by a line of not less than twenty- five dollars nor more than one hundred dollars, and in default 11. Kalamazoo Gazette Co. v. 2nd Ed. 1449; P. A. 1913, Page County Clerk, 148 Mich. 460, 101 102. X W. 1070. 13. C. L. '15, (11379) ; Howell. 12. C. L. '15, (3448) ; Howell, 2nd. Ed. 11441. 57 61 PROOF OF MARRIAGE of payment of such fine, by imprisonment in the county jail not more than thirty days. 14 "Any clergyman or magistrate who shall join together in marriage parties who have not delivered to him a properly issued license, as provided for in this act, or who shall violate any of the provisions of this act, shall be adjudged guilty of a misdemeanor, and shall be punished by a fine of one hundred dollars, or in default of payment thereof, by imprisonment in the county jail for a term of ninety days." 15 In the case of People v. McLaughlin, 108 Mich. 516 (6G N. W. 385), it was charged that the respondent, a clergyman, "did join together in marriage James F. McNames and Emma Nogle, they nor either of them having delivered to him a properly issued license." The trial resulted in conviction. At the time the marriage ceremony was performed James Mc- Names had a former wife living. He represented to the clergyman that he had applied for a license and that it had been issued and at the time of the marriage was on its way in the mail, although as matter of fact he had made no sudh application and no license had been issued to him. After trial and conviction the respondent appealed, and on the hearing in the Supreme Court two questions were raised by his counsel. First, that the statute under which the prosecution was brought was unconstitutional and void because the act em- braced more than one object. Second, that the performance of the marriage ceremony was a nullity for the reason that one of the parties was incompetent to marry, and conse- quently the respondent could not legally, and therefore did not, join the parties together in marriage. The Supreme Court held that the law was,, constitutional and that the title of the act, "An act requiring a civil license in order to marry and the due registration of the same, and to provide a penalty for a violation of the provisions of the same." was broad enough to cover the provisions of the act, and that its pro- visions are all germane to the object expressed in the title. As to the second question, the court overruled the contention of respondent's counsel with little comment, saying: "It is only necessary to state these propositions to show how illog- ical they are," and holding that the fact that one of the parties 14. C. L. '15, (11380); Howell, 2nd. Ed. 11442; People v. Mc- 2nd Ed. 11441. Glaughlin, 108 Mich. 516, 66 N. W. 15. C. L. '15, (11381); Howell, 385. 58 .\IAI;KIAI;I:S TO I-UOTI:IT ui:ri r.\rio.\ 63 \\a> under a legal disability to enter into the marriage relation was no defense. 18 The statute further provides that "any person whose duty it shall lie to return a marriage certificate to tin- county clerk, who shall neglect to return such certificate, shall \H> adjudged guilty ol' .1 inisdeiiieanor. ami shall be punished by a line not exceeding one hundred dollars or ninety days' imprisonment. 01 both, in the discretion of the court. 17 Any ajtplicant for a marriage license who swears to a false statement in the application is guilty of perjury, and may be punished therefor under the general laws of the state. 18 All reports of marriages sent by county clerks to the secre- tary of state are required to be preserved on file in the office of the secretary of state, and a proper record made thereof and kept. 19 62. Record as Evidence. The record of any license to marry, or of any marriage certificate, in any count)' clerk's office, or certified copy of such record, is prinni facie evidence in any court or proceed- ings in this state, with the same force and effect as though the original ware produced, both as to the facts therein contained and as to the genuineness of the signatures thereto. 20 63. Marriages to Protect Reputation. While, as has been shown, the record of marriages kept in the office of the county clerk is a public record and open to inspection for any lawful purpose, the statute provides that for the protection of the reputation and good name of certain persons under certain circumstances, the judge of probate may i--sue a marriage license, perform the marriage ceremony, and make a record thereof, which is not open to public inspection by anyone for any purpose, unless by order of a court of competent jurisdiction on certain conditions. 21 The statute provides that "the judge of probate of each county in this state shall have authority and it shall be his duty to issue, without publicity, a marriage license to any 16. People v. McGlaughHn, 108 2nd. Ed. 511445. Mich. 516. 66 N. W. 385. 20. C. L. '15, (11385); Howell, 17. C. L. '15, (11382); Howell, 2nd. Ed. 811446; Cummins & 2nd. Ed. 11443. Beecber's Mich. Judicature Act, 18. C. L. '15, (11383) ; Howell, 654. 2nd. Ed. 5511444. 21. C. L. '15, (11387); Howell, 19. C. L. 15, (11384); Howell. 2nd. Ed. 811448. 59 64 PROOF OF MARRIAGE female making'' application to him under oath containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man and had been considered as his wife, or, for other good reason expressed in such application and deemed sufficient by the judge of probate, desires to keep the exact date of the mar- riage secret to protect the good name of herself and the reputation of her family." 22 Under this statute the judge of probate has authority to marry persons under marriageable age in cases where the female is with child or where she has been living with some man as his wife, in case the application for such license is accompanied by the written request of the parents of both parties, if living, and their guardian or guardians if either or both of the parents are dead, or by the written request of the parent or .guardian, as the case may be, of the one under marriageable age as fixed by the statute, when, according to his judgment, such marriage would be a benefit to public morals. 23 64. Application For a License Form of Application. The application for a license to marry under the act entitled "An Act to Provide for the Protection of the Reputation and Good Name of Certain Persons" is required to be in the usual form. In addition to the usual form, the application must state that the female is with child or that she has lived with a man and been considered his wife, and it must be accompanied by a fee of three dollars, two dollars of which is for the judge of, probate for his services, and one dollar for the secretary of state as his fee for performing the services required of him by the statute. Upon the filing of the application and issuing of the license it is the duty of the judge of probate to perform the marriage ceremony unless the applicant or one of the parties to the contemplated marriage desires to* have the ceremony per- formed by some other person competent to solemnize mar- riages, in which case the judge of probate is required to issue a written permit to the person designated by the applicant or contracting parties, directing him to perform such marriage ceremony. The party so designated, if competent to perform 22. C. L. '15, (11387) ; Howell, 23. C. L. '15, (11387) ; Howell, 2nd Ed. 11448. 2nd. Ed. 11448. 60 PRIVILEGE 66 the marriage ceremony under the general laws of the state, is thereby empowered to perform such marriage ceremony, but no record, except the record made by the judge of probate pursuant to the statute, shall be made of such marriage. Upon the performance of such marriage ceremony, the person per- forming it is required to return the marriage certificate to the judge of probate, who then is required to attach the certificate and license to the application. All of the papers are required to be executed in duplicate, and the person who performs such marriage ceremony is required to deliver a certificate of such ni.-irrijige to the bride. 2 * 65. Judge of Probate to File Papers; Inspection of Record. The judge of probate is required to file all the papers in such case in a private file, and, within ten days after the marriage, forward the duplicate thereof to the secretary of state, who is also required to keep such duplicate in a private file and to lecord tlie same in a private register. Such private file in the probate court, and the duplicate and record thereof in the office of the secretary of state, are open to inspection, only on a written order of a judge of the circuit court, or of the supreme court, and only for- the use designated in the order. No such order can be made except upon the written request of the person or persons who were so married, or when necessary to the protection of property rights arising from or affected by such marriage. 25 66. Privilege Penalties for Divulging or Publishing, Etc. All knowledge of any facts concerning such marriages which shall come to the judge of probate or secretary of state, or to their deputies or assistants, or to the witnesses to such mar- riages, or to the physician endorsing the application, under any license issued pursuant to the provisions of the act au- thorizing such marriages is privileged. Any violation of such confidence and privilege by any of sudh persons is a misdemeanor, and is punishable by a fine of not less than twenty-five dollars nor more than one hundred dollars, and the costs of prosecution, and in default of pay- ment of the fine imposed, by imprisonment in the county jail not more than three months. 24. C. L. '15. (11388); Howell, 25. C. L. '15, (11389); Howell, 2nd. Ed. 511449. 2nd. Ed. 511450. < 61 66 PROOF OF MARRIAGE The giving of publicity to any such license, or to any mar- riage held under the provisions of the act, is also a misde- meanor, and is punishable by a fine or imprisonment, and, in addition thereto, the editor, publisher or proprietor of any newspaper or publication in this state, giving publicity to any such license or marriage, is liable in an action of libel to the parties married under such license. In case the judge of probate neglects to make a proper return of such marriages, he is liable to a fine not exceeding fifty dollars in addition to the penalty prescribed by the general laws of this state. 26 If the applicant is an orphan and has no guardian and is under marriageable age, a guardian must be appointed for such applicant and his written request obtained before a license can be issued or the marriage ceremony performed. 27 26. C. L. '15, (11390) ; Howell, 27. People v. Schoonmaker, 2nd. Ed. 11451. 119 Mich. 242, 77 N. W. 934. 62 CHAPTER VII. 1'RESUMPTIONS. 67. Presumptions of Validity of Marriage. 68. Conflicting Presumptions. 69. Conflict of Laws. 70. Indian Customs. 71. Incestuous and Polygamous Marriages. 72. Marriages When void. 73. Marriage More than a Civil Contract. 74. Purpose of Statutory Definition. 75. Voidable Marriages. 76. Who May Annul Voidable Marriages. |77. Who May Annul Marriage for Fraud or Duress. 67. Presumptions of Validity of Marriage. When a formal ceremony of marriage, followed by cohabita- tion, is shown between persons competent to enter that rela- tion, the law raises a presumption that the marriage is valid and that the person performing the ceremony was legally authorized to perform the same, and this presumption can be overcome only by clear and convincing evidence to the con- irary. 1 It is held in the State of Illinois that when the celebration <>f .1 marriage has been shown, the contract of marriage, the a parity of the parties, and in fact everything necessary to the validity of the marriage will be presumed, in the absence of proof to the contrary. 2 The same rule prevails in Michigan, ami it seems is one of universal application in this country. In the case of People v. Schoon maker, 117 Mich. 190; 75 X. W. 439, the respondent was charged with statutory rape. The complaining witness was under the age of consent at the time the offense was alleged to have been committed, and when she was called to the stand as a witness she was interrogated by respondent's counsel as to her competency. From her examination it appeared that she had gone through the form of a marriage ceremony with the respondent before the judge 1. Meginson v. Meginson, 14 2. Cartwright v. Gowan, 121 L. R. A. 544. 111. 388. 63 68 PRESUMPTIONS of probate. The "prerequisite conditions required by Act No. 180, Public Acts of 1897, were not affirmatively shown by the respondent nor testified to by the witness and it did not appear that the statute had been complied with in that regard. The trial court held that this fact overcame the presumption of the validity of the marriage and permitted the witness to testify. On appeal, the supreme court held that this view could not be sustained, and that the presumption arising from the fact of the ceremony of marriage before an officer author- ized to perform it is in favor of the regularity and legality of the act, citing 2 Wharton on Evidence, 1297, and Bishop on Marriage and Divorce, 946. The precise question pre- sented was whether the wife was a competent witness to the act charged as occurring before the marriage, and it was held that she was not, and a new trial was ordered. 3 On a second trial it was shown that the parties went through a ceremony of marriage, and that shell ceremony took Vlace on the petition of Maud Breen, the complaining witness, without any consent by parent or guardian, and that after the ceremony the parties made arrangements to go to housekeep- ing but never in fact lived together, either before or after the complaining witness became of the age of sixteen years, she being sixteen years and three months of age at the time her testimony on the second trial was given. This trial resulted in another conviction, and on appeal to the supreme court it was held by that court that the marriage was void an/I the complaining witness competent to testify. 4 The judgment on the first trial seems to have been reversed and a new trial granted because the legal presumption of the legality of the marriage ceremony was not overcome. On the second trial that presumption was overcome by proof that showed that the marriage was void and not merely voidable. 68. Conflicting Presumptions. Cases frequently .arise in which certain disputable presump- tions in regard to the marriage relation are conflicting. In such cases it becomes important to determine which presump- tion prevails if neither is aided by proof of cooperating facts or circumstances. The weight of authority seems to be that in such cases the presumption arising from the later act must prevail over that 3. People v. Schoonmaker, 117 4. People v. Schoonmaker, 119 Mich. 195, 75 N. W. 439. Mich. 242, -77 N. W. 934. 64 roM i.HJT OF" LAWS which arises from facts and circumstances which occurred earlier. Thus where the presumption of marriage arising from I In- performance of a ceremony conflicts with a presumption ofthe continued life of a former spouse of one of the partir-. if neither is aided by facts or circumstances cooperating with it, the presumption of the validity of the marriage will prevail over the other. 5 It has also been held that the presumption of life will yield in favor of the presumption of innocence." Also, in an action to settle property rights depending upon the validity of a marriage by a man who had a wife living and from whohi he had been separated for eight years, and who in the meantime had married again, it was held that the law will presume a divorce between them, and that the man's second marriage was valid if nothing to the contrary is shown. 7 Positive evidence of non-assent to a marriage ceremony that has been performed raises a presumption against the validity of the marriage and should be considered by courts and juries. 8 While reputation may be considered as evidence to establish a marriage, and is very important when the fact of a marriage is in doubt, it is only one of the circumstances from which a marriage, legal or otherwise, may be inferred. When a mar- riage in fact is made out, whether by formal ceremony or otherwise, it must stand though all the community say and believe it to be illegal. But upon doubtful facts the court ougnt to presume a lawful marriage rather than a notorious >f immorality. 9 69. Conflict of Laws. When the validity of a marriage is questioned, it alway> becomes important to determine whether the marriage was valid in the state or country where it was solemnized. Tt is a principle of universal law that a marriage valid in a country where it occurred is valid everywhere, and it will be held valid in countries where the parties may In- domiciled, 5. Johnson v. Johnson, 114 111. Iowa 228; Harris v. Harris, 18 611, 55 Am. Rep. 883. 111. App. 57. 6. Lockhart v. White, 18 Tex. 8. Kopke v. People, 43 Mich. 110. 41, 4 N. W. 551. 7. Carroll v. Carroll, 20 Tex. 9. Peet v. Peet, 52 Mich. 464- 740; Blanchard v. Lambert, 43 467, 18 N. W. 220. 65 70 PRESUMPTIONS even though it would have been invalid by the laws of the subsequent domicile if it originally had been celebrated there. 10 70. Indian Customs. Marriages between members of Indian tribes in tribal rela- tions valid by the Indian laws, contracted at a time when there was no act of Congress on the subject, are recognized by the state courts as valid. Indians in tribal relation are not subject to state laws. 11 71. Incestuous and Polygamous Marriages. It seems, however, that incestuous and polygamous mar- riages, celebrated in countries where such marriages are per- mitted, are nevertheless treated as invalid here, because fhey are condemned by the common voice of, civilized nations, which establishes a common law forbidding them. 12 The same rea- sons which condemn polygamous and incestuous marriages sustain marriages by mere agreement when followed by co- habitation, and the same common law protects them. 72. Marriages; When Void. Marriages may be either absolutely void or only voidable. When between persons within the prohibited degree of consan- guinity or affinity thqy are absolutely void. All marriages solemnized when one of the parties was insane or an idiot, if solemnized in this state, are void, but the issue of any such marriages, except those contracted when one or both of the parties thereto has a living husband or wife, is deemed legitimate. 13 The question has been raised in this state as to whether a bigamous marriage, entered into by the woman in good faith, while the man had knowledge that he had a lawful \vife living in another state, becomes valid after the removal of the impedi- ment by the death of the first wife and continued cohabitation by the living parties, where the woman never learned of the existence or death of the former wife, and the man was ignor- ant of her death. The circuit court held the marriage valid, \ 10. Hutchins v. Kimmell, 31 Laws, 180. Mich. 126. 13. C. L. '15, <11391) ; Howell, 11. Kobogum, v. Mining Co. 2nd. Ed. 11453; In Re Fitzgib- 76 Mich. 498, 43 N. W. 602. bon's Estate, 162 Mich. 416, 127 12. Hutchins v. Kimmell, 31 N. W. 313. Mich. 134; Horton on Conflict of 66 M.\I;I;IA<;I: My equal division. 14 In other stages there seems to be a decided conflict of author iiy on the subject. It would seem to be in the 'interest of public policy and. good morals that when a woman enters into the marriage relation in good faith, bearing all of its burdens, and, assuming all of the duties of a wife in that relation, becomes the mother of children,* honestly believing them to be the offspring of a lawful marriage, and such relations continue in good faith after the Impediment is removed, she should not be character- ised or placed in the same category as a harlot, and as though she had knowingly entered into meretricious relations. No one can reasonably urge, in furtherance of good morals, public policy, or the sacredness of the marriage relation, that children born under such circumstances should be characterized as illegitimate. It would be a cruel law that would accomplish such results, and it is to be hoped that such will never be the law of this country. 73. Marriage More than a Civil Contract. While it is declared by statute in this state, and in many others, that "marriage so far as its validity is concerned is a civil contract, to which the consent of parties capable in law of contracting is essential". 15 still it involves something more than a mere contract, for when once formed a relation is reated between the parties which they cannot change, the rights and obligations of which depend not upon their agree- ment. lni upon the law, written or unwritten. 18 In Michigan the conn-act of marriage will not be presumed when such l-re." provides thai "Any person wiio may hold. <>r who may hereafter hold as trustee for any mar- ried woman any real or personal estate or other property, under any deed of conveyance or otherwise, may convey to such num-ieii woman, by deed or otherwise, all or any portion of such properly, or the vents, issues and profits thereof, for her sole and separate use and benefit." 7 82. Actions by and against Married Women. The third section of the act of 1855 provides that "actions may be brought by and against a married woman in relation to her sole property in the same manner as if she were uumar i-ied ; and in cases where the property of the husband cannot Id, mortgaged or otherwise encumbered, without the con- sent of his wife, to be given in the manner prescribed by law. or where his property is exempted by law from sale on execu- tion or other final process issued from any court against him. his wife may bring an action in her own name with the like effect as in cases of actions in relation to her sole property as aforesaid," 8 5. Act 168, Pub. Acts 1855; C. separate interest should be L. '15. (11485); Howell, 2nd. Ed., fought by her alone, and not 11545. jointly with her husband, M. C. 6. Ransom v. Ransom, 30 R. R. Co. v. Coleman, 28 Mich. Mich. 328. 440. 7. Act. No. 168, P. A. 1855, In an action against a mar- Sec. 2; C. L. '15, (11486); Howell, ried woman for slander, her hus- 2nd. Ed., 11546; Burdeno v. band cannot be made liable for Amperse, 14 Mich. 97; Tillman her tort, so there can be no rea- v. Shackleton, 15 Mich. 453. son for joining him as a defend- . 8. C. L. '15, (12356); Howell, ant, yet the statutes seem to as- 2nd. Ed., 11547; Wilson v. sume that he is still a proper Coolidge. 42 Mich. 112, 3 N. W. party, and, whether a necessary 285; Hunt v. Eaton, 55 Mich. one or not, he is at least not an 369, 21 N. W. 429; King v. Mer- improper party Burt v. McBain, ritt, 67 Mich. 194, 34 N. W. 689. 29 Mich. 260. Actions in relation to the wife's 75 83 STATUTORY PROVISIONS 83. Husband not Liable for Wife's Contract in Relation to her Separate Property. Section Four of the Married Women's Act of 1855 provides that "the husband of any married woman shall not be liable- to be sued upon any contract made by such married woman in relation to her sole property, and the wife shall be liable to be sued upon any .contract or engagement made by her in cases where the husband is not in law liable, or where he refuses to perform such contract or engagement, and in any case herein authorized, the cause of action shall be deemed to have accrued from and after the passage of this act." 9 84. Antenuptial Contracts. The act of 1855 also provides that "all contracts made be- tween persons in contemplation of marriage shall remain in full force after marriage takes place." 10 The fact that another statute provides a method of barring, dower by jointure does not deprive the intended wife, who is a party to an antenuptial contract, of the power to bar her dower or other statutory rights, by any other valid form of antenuptial contracts. 11 While the law prescribes the rights of husband and wife in 9. Act No. 168, P. A. 1855, 239; Commercial Bank v. Newton, Sec. 4; C. L. '15, (11487); Howell, 117 Mich. 433; 75 N. W. 934. 2nd. Ed., 11548. The fact that goods were charg- This statute abrogates the com- ed upon the plaintiff's book to mon law making the husband lia- the wife would not necessarily ble for his wife's antenuptial con- estop him to claim that the goods tracts Smith v. Martin, 124 were sold upon the credit of the Mich. 34, 82 N. W. 662. husband. Larson v. Jensen, 53 It is not going out of the way Mich. 427, 19 N. W. 130; Leonard to regard a husband who deserts v. Stowe, 166 Mich. 681, 132 N. W. his family and does nothing for 681; Taylor-Woolfenden v. Atkin- their support as refusing to per- son, 127 Mich. 633, 87 N. W. 84. form his wife's contract for 10. Act No. 168, Sec. 5; P. A. necessaries. Carstens v. Hansel- 1855, C. L. '15, (11488) ; Howell, man, 61 Mich. 426, 28 N. W. 159. 2nd. Ed., 11549. But it is not necessary to show, 11. Hockenberry v. Donovan, in order to maintain an action 170 Mich. 379, 136 N. W. 389; against a married woman for Earth v. Lines, 118 111. 374, 7 N. family necessaries which she has E. 679, 59 Am. R. 374; Desnoyer bought and agreed to pay for, v Jordan, 27 Minn. 29$ 7 N. W. that the husband refused to do 140. so. Meads v. Martin, 84 Mich. The mutual covenants of the 306, 47 N. W. 583; Hirschfleld v. parties to an antenuptial agree- Waldron, 83 Mich. 116, 47 N. W. inent to waive their rights in the 76 KI. I IT o|-' MAKUIKI* WiiMKN To j:.\KM.\t.> 86 I the property of each other, they may nevertheless determine for themselves, by antenuptial contracts, what rights they respectively may have in their own and each other's property lui-ing the marriage, and what shall become of such property afterwards. Such contracts are not against public policy, and when executed by competent parties without fraud or duiv^s. and with full knowledge of all material facts, will be enforced by the courts. 12 85. Wife May Insure Life of Husband. The statute of Michigan authorizes any married woman to insure the life of her husband or any other person for her sole use in any life insurance company of any nature whatever, located in any of the United States or in Great Britain, for any definite period, or for the term of his natural life; and in case sin* survives her husband or such other person insured in^her behalf, the amount of such policy due ami payable is payable to her to and for her own use, free from the claims of the representatives of her husband or other person insured. or of any of his creditors, but such exemption will not apply where the amount of premium annually paid exceeds the SIMM of three hundred dollars. 13 Such insurance policy may con- tain a provision tha^ in case she dies first the insurance shall be paid to their children or to their guardian if under age. 14 And in case of the death of such wife before the death of her husband or such other person insured, the amount of the policy may be disposed of by her last will and testament. 15 86. Right of Married Woman to Earnings. At common law, and until quite recently in Michigan, the earnings of a married woman belonged to her husband unless he had emancipated her. The wife's time, services and earn- ings belonged to the husband. 16 property of each other, and the 13. C. L. '15, (11489) ; Howell, release of such rights, constitute 2n'd. Ed. 11550. a good consideration to support 14. Insurance Co. v. Wayne the agreement, and the marriage County Savings Bank, 68 Mich, .of the parties is of itself a s^uffl- 116, 39 N. W. 853. clent consideration. Kroll v. Kroll, 15. C. L. '15, (11490); Howell. 219 111. 105, 4 Am. & Eng. Ann. 2nd. Ed., 811551; Insurance Co. Cases 801, 76 N. E. 63. v. Wayne County Savings Bank, 12. Hockenberry v. Donovan, 68 Mich. 116. 170 Mich. 370, 136 N. W. 389; 16. Glover v. Alcott, 11 Mich. Kroll v. Kroll. 4 Am. & Eng. 470; Tong v. Marvin, 15 Mich. 60. Ann. Cases 801. 77 STATUTORY PROVISIONS Iii 1911, however, the legislature enacted that "each and every married woman in the State of Michigan shall be abso- lutely entitled to have, hold, own, retain and enjoy, any and all earnings acquired by any such married woman as the result of her personal effort; and to sell or otherwise dispose of any and- all such earnings, and to make contracts in relation thereto to the same extent that any such married woman could have or do if unmarried." 17 This act does not in terms permit a married woman to leave her husband without cause and engage her services to some other person. 17. Mich. C. L. 1915, (11478); Howell, 2nd. Ed., 11552. Dam- ages for the loss of services of plaintiff's wife arising from per- sonal injuries suffered by her caused by the negligence of de- fendant's servant, are recoverable in an action by the husband, notwithstanding the provisions of Act No. 196, P. A. 1911, giving the wife 'the right to her earn- ings and services. That statute contemplates and means that all earnings acquired, or services per- formed as a result of her per- sonal effort, in any separate busi- ness carried on by her in her own behalf, or any services performed by her for others than her hus- band, belonged to her. Her labor, companionship, society and as- v sistance in the discharge of her family and household duties and obligations still belong to the husband. Gregory v. Oakland Motor Car Co., 181 Mich. 101. 78 ix. PROPERTY RIGHTS OF HI SP.AM) AM> WIFE. 87. Mutual Property Rights. 88. Deed of Land Owned by Wife. 89. Land Held Jointly by Husband and Wife. 90. Same Subject Continued. 91. Doctrine of Survivorship Does not Apply to Personal Property. 92. Same Subject Continued. 93. Effect of Divorce on Title to Land Held by Husband and Wife. 87. Mutual Property Rights. There is no legal presumption that a wife has no separate property. 1 Under the married woman's act of 18rr> the wife's property is not simply to be and remain hers during her life time, but the husband's common law interest is excluded ali<> gether even after her death, and the husband has no right of control over his wife's property during coverture." Damages recovered by a wife for injuries in her pcix>u and for pain and suffering result ing from an assault and battery committed upon herself belong to h^r as a part of her separate properly. A wife may acquire property redeemed by judgment credi- tors from execution sale against her husband, and in such case the property so acquired by her will be treated as her separate property and the husband will have no interest therein. 1 A husband cannot encumber his wife's property without her consent: and the mere fact that he has given a chattel mort- gage on personal property belonging to her does not tend to show that he" owns it, if there is no evidence of the wife's consent. 5 88. Deed of Land Owned by Wife. Prior to the passage of the married woman's act of Is.Vi 1. Ross v. Ross, 47 Mich. 185, , 215. 10 N. W. 193. 4. Taylor v. Boardman, 24 2. Tong v. Marvin, 15 Mich. Mich. 287. 60; White v. Zane, 10 Mich. 333; 5. Harvey v. Galloway, 48 Insurance Co.* v. Montague, 38 Mich. 531, 12 N. W. 689; Gavi- Mich. 548. gan v. Scott, 51 Mich. 373. 16 N. 3. Berger v. Jacobs, 21 Mich. W. 769. 79 89 PROPERTY RIGHTS the sole deed of a married woman was void. 6 This rule of the common law was changed by the act of 1855, and since that act took effect a married woman may convey her land alone by deed executed and acknowledged by her in the same manner and with the like effect as if she were unmarried. 7 And a wife may mortgage her sole property to secure her husband's debts. 8 A husband and wife may convey directly to each other with- out the intervention of a trustee or third person, as was required prior to the act of 1855. 9 A wife who contributes of her own means to the purchase of land by her husband, who takes a deed in his own name she not insisting upon any agreement for repayment or the con- veyance of any interest in the land to her will be presumed conclusively, after her husband's death, to .have intended the amount of her contribution as a gift to her husband. 10 89. Land Held Jointly by Husband and Wife. The statute provides "that all grants and devises, of land made to two or more persons, except as provided in the fol- lowing section, shall be construed to create estates in common, and not in joint 'tenancy, unless expressly declared to be in joint tenancy." " One of the exceptions mentioned in the following section is a grant or devise to husband and wife. 12 Whatever would defeat a husband's title under a grant made to himself and his wife jointly, would defeat hers also, as they take by entireties. 13 Where a grant or devise of land is made in fee to husband and wife, on the death of one of them the whole title inures to the survivor. Nothing in our constitution or statutes relating to the rights of married women would convert such an estate into a tenancy in common. 14 Where land is conveyed or devised to husband and wife, they hold neither as tenants in common nor as ordinary joint tenants. The survivor takes the whole. During the lives of both, 6. Goff v. Thompson, Har. Ch. 11. C. L. '15, (11562); Howell, 60. 2nd. Ed., 10667. 7. Fair v. Sherman, 11 Mich. 12.. C. L. '15, (11563); Howell, 33; Watson v. Thurber, 11 Mich. 2nd. Ed., 10667. 457. 13. Manwaring v. Powell, 40 8. Watson v. Thurber, 11 Mich. Mich. 371. 469. 14. Fisher v. Provin, 25 Mich. 9. Burdeno v. Amperse, 14 347; Insurance Co. v. Resh, 40 Mich. 91; Ransom v. Ransom, 30 Mich. 241; Jacobs v. Miller, 50 Mich. 328. Mich. 119, 15 N. W. 42; Bassett 10. Campbell v. Campbell, 21 v. Budlong, 77 Mich. 338, 43 N. Mich. 438. W. 984. 80 LAND HELD JOINTLY 90 neither has an absolute inheritable interest. Neither can be said to have an undivided half, nor can either, without joining in a conveyance with the other, sell or incumber the same or his or her interest therein. 15 A deed executed to a man and woman who at the time of the execution and delivery of the deed are in fact husband and wife, creates an estate which, on the death of one of the grantees, will pass to the survivor, and the fact of the relation- ship may be shown by parol testimony. 18 90. Same Subject Continued. This species of tenancy grows out of the unity of husband and wife, and is unlike that of joint tenants, who are each seized of an undivided moiety. The husband and wife are each seized of the whole, and not of an undivided moiety. 17 The doctrine of estates by entireties has frequently been combated in this state, and the case of Dowling v. Salliott, 83 Mich. 131, seems to have overthrown it. In that case it is stated in the opinion written by Mr. Justice Cahill that "strictly speaking, estates in entirety were abolished by the statute of 1846, C. L. '97 Sec. 8825; Howell 2nd Ed. Sec. 10665," which reads as follows: Estates,, in regard to the number and connection of their owners, are divided into estates in severalty, in joint tenancy, and in common ; the nature and properties of which respectively sKall continue to be such as are now established by law except so far as the same may be modified by this chapter. But in the later case of Lewis' Appeal, 85 .Mich. 340, the case of Dowliug v. Salliott was overruled so far as it declares that the estate of the wife when held jointly with her husband is one of joint tenancy. 18 In the Lewis case the court held that in the^case of Dowling v. Salliott a correct result was reached by the court, and repudiated that decision only so far as it held that an estate held by husband and wife jointly was an estate in joint ten- ancy. 15. Insurance Co. v. Resh, 40 17. Dickey v. Converse, 117 Mich. 241; Allen v. Allen, 47 Mich. 455, 76 N. W. 80; Harden- Mich. 74,. 10 N. W. 113. berg v. Hardenberg, 10 N. J. Law 16. Dowling v. Salliott, 83 42, 18 Am. Dec. 378. Mich. 131, 47 N. W. 225; Auditor 18. Lewis App-., 85 Mich 340, Qeneral v. Fisher, 84 Mich. 132, 48 N. W. 580. 47 N. W. 574. 81 91 PROPERTY RIGHTS 91. Doctrine of Survivorship Does not Apply to Personal Property. The doctrine of survivorship does not extend to personal property and securities owned by husband and wife jointly and held in the^name of both. 19 There are some cases which seem to conflict with the above rule, but in those cases the decision was put upon the ground that it was apparent from the character of the transaction that the husband intended to give the property to his wife in the event of her survivorship, and hence the transaction pos- sessed all the essential qualities of a gift causa mortis, which he might revoke in his life time, and which would not take effect until his death, if not previously recalled. 20 92. Same Subject Continued. Xor does the doctrine of survivorship apply to a purchase money mortgage given to a husband and wife jointly on the sale of land owned by the husband. 21 The interest of a hus- band and wife in a land contract, however, by which they are to receive a deed of the land is not an interest in personal property, and, upon the death of the husband the entire inter- est passes to the wife by right of survivorship. 22 93. Effect of Divorce on Title to Land Held by Husband and Wife. The legislature of 1909 passed an act providing that where real estate is held by a husband and wife as joint tenants or tenants by entirety, upon their being divorced, they shall be- come tenants in common of such real estate, unless the owner- ship thereof is otherwise determined by the decree of divorce. 23 It is not competent for the court, in fixing the amount of alimony, to diminish the estate owned by the wife as tenant by entireties with the husband. 24 19. Wait v. Bovee, 35 Mich. 22. Bowen v. Lansing, 129 425: Luttermoser v. Zeuner, 110 Mich. 117, 18 N. W. 384; Corn- Mich. 186, 68. N. W. 117. fort v. Robinson, 155 Mich. 143, 20. State Bank of Croswell v. 118 N. W. 943. Johnson, 151 Mich. 584, 115 N. 23. C. L. 1915, (11436) ; How- W. 464; In the matter of Al- ell, 2nd. Ed., 11497. brecht, 136 N. Y. 91, 18 L. R. A. 24. Delor v. Delor, 159 Mich. 329. 628, 124 N. W. 544; Brown v. 21. McLeod v. Free, 96 Mich. Brown, 144 Mich. 654, 108 N. W. 57, 55 N. W. 685; Wait v. Bovee, 890. 35 Mich. 425. 82 CHAPTER \ cnrrr.sY, MOWER AND ASSIGNMENTS. 94. Husband's Rights in Land of Deceased Wife. $95. Dower. 96. Dower in Case of Lands Exchanged. 97. Right of Alien or .Non-Resident to Dower. 98. Dower in Land Mortgaged. 99. Widow's Interest in Surplus after Sale on Mortgage Foreclosure. 100. Dower when Heir Pays the Mortgage. 101. Estimating Dower in Land Aliened by Husband. 102. Dower May be Assigned by Probate Court When. 103. How Dower Assigned by Probate Court. 104. Proceedings and Commissioner's Oath. 105. Dower in Land not Severable. 106. Widow may Occupy with Heirs if they do not Object. 94. Husband's Rights in Land of Deceased Wife. At common law a husband had a prospective interest in land owned by his wife, and at her death he became entitled, under certain conditions, to the use of her land during his life. This right of the husband was called tenancy by the curtesy. At common law four requisites were necessary to create such a tenancy, viz: first, marriage; second, seisin by the wife; third, issue, and fourth, death of the wife. 1 The common law estate by the curiscy has been abolished in Michigan, 2 but there still remains on the statute books an abrogated law enacted many yrars ago which purports to give to a husband an inter- est in the land of his deceased wife which in some particulars resembles the common law tenancy by the curtesy. That law provides i hat "when any man and his wife shall be seized in her right of an estate of inheritance in lands, the husband shall, on the death of his wife, hold the lands for his life as tenant thereof by the curtesy: Provided, That if the wife at her death shall leave issue by any former husband, to whom the estate miuhi descend, such issue shall take the same, dis- 1. Sec. Blk. Com. 127; 1 Coke 2. Tong v. Marvin, 15 Mich, upon Littleton 643; Hathon v. 60; Hill v. Chambers, 30 Mich. Lyon. 2 Mich. 95. 422. 83 95 CURTESY, DOWER AND ASSIGNMENT charged from the right of the surviving husband to hold the same as tenant by the curtesy." 3 The common law estate by the curtesy no longer exists under Michigan laws now in force, and the statutory estate provided for in the statute above quoted was quite different from that at the common law. Even this was abrogated by the married women's act of 1855, 4 except where it had vested prior to that act. 5 95. Dower. By the statutes of Michigan the widow of every deceased person is entitled to dower, which consists of the use, during her natural life, of one-third part of all the land whereof her husband was seized of an estate of inheritance at any time during the marriage, 'unless she has been lawfully barred thereof. 6 96. Dower in Case of Lands Exchanged. If a married man, seized of an estate of inheritance in land, exchanges the same for other land, his wife not signing the conveyance, his widow is not entitled to dower in both, but may elect to be endowed of the land given or that taken in exchange, If she does not manifest her election by proceed- ings to recover her dower within one year after her husband's death, she is deemed to have elected to take her dower of the land received in exchange. 7 The right of dower is not an undivided third of the entirety, but of one-third in severalty; nor is it one-third in quantity of the laud of which a husband died seized, but the use of such part as will yield one-third of the income of the whole. s Until it is legally and duly assigned, it is a right vesting in action only. It is a mere right of action arid nothing more. 9 3. R. S. 1846, Page 340, Sec. is the administrator authorized 25; C. L. '97, 8955; Howell, 2nd. to purchase a release of such in- Ed., 10948; omitted in C. L. '15. terest for the benefit of the es- 4. Tong v. Marvin, 15 Mich. tate. Needham v. Belote, 39 60, 69. Mich. 487. 5. Hill v. Chambers, 30 Mich. 7. C. L. '15, (11655) ; Howell, 422; Brown v. Clark, 44 Mich. 2nd. Ed., 10911. 309, 6 N. W. 679. 8. Leonard v. Leonard, 4 Mass. 6. C. L. '15, (11654); Howell, 533; King v. Merritt, 67 Mich. 2nd. Ed., 10910. 216 34 N. W. 689; Conner v. Shep- The dower interest of a widow herd, 15 Mass. 167. is no part of the estate of her 9. Rayner v. Lee, 26 Mich, deceased husband, and it cannot 384; Galbraith v. Fleming, 60 be sold by his administrator; nor Mich. 412, 27 N. W. 581. 84 DOWEK IN LAND MORTGAGED 98 Unassigued dower, being but a right in action, is not a Inn io recovery in ejectment by the owner of the fe< 97. Right of Alien or Non-Resident to Dower. It is provided by statute that the fact Hint a woman is an alien 07- non-resident of the state does not on that account bar her right of dower in land lying in this stale. of which her husband died seized, and her dower may be asM^ned to her. or recovered by her, in the same manner as if she and her de- ceased husband had been residents of this state at the time of his death. 11 In the revised statutes of 1846 this section does not contain the words: "of which the husband died sei/ed." The statute negatives the right to dower of a widow residing out of the state at the time of her husband's death, except in lands of which he died seized. The non-residence mentioned refers to the time of the husband's death. l - 98. Dower in Land Mortgaged. When a man is seized of an estate of inheritance in lands and shall have executed a mortgage on such estate before marriage, his widow is entitled to dower out of the mortgaged land as against every person except the mortgagee and those that hold under him. Dower is not required to be set off under the laws of .Mich- igan before bringing ejectment therefor by the widow. 14 The statutory action of ejectment is available to no one but the widow prior to the assignment of her dower. Her assignee cannot bring such action before assignment: but after such assignment it becomes transferable the same as any other life estate. 15 A widow's dower in an encumbered estate is liable to con- tribute to pay its proportion of the interest accruing on the encumbrance. 1 " 10. McCammon v. D. L. & N. 625; Campbell v. Campbell, 21 R. R. Co., 66 Mich. 442, 33 N. W. Mich. 438; Burrall v. Bender, 61 728; King v. Merritt, 67 Mich. Mich. 608, 28 N. W. 731; Bowles 216, 34 N. W. 689. v. Hoard, 71 Mich. 150, 39 N. W. 11. C. L. '15, (11670); Howell, 24. 2nd. Ed., 10930. 14. Burrall v. Bender, 61 Mich. 12. Pratt v. Tefft, 14 Mich. 191, 608. 28 N. W. 371. 200. 15. Galbraith v. Fleming, 60 13. C. L. '15, (11656); Howell, Mich. 408, 27 N. W. 581. 2nd. Ed., 10912; Hall v. Mar- 16. Campbell v. Campbell, 21 shall, 139 Mich. 123, 102 N. W. Mich. 438.- 85 99 CURTESY, DOWER AND ASSIGNMENT 99. Widow's Interest in Surplus after Sale on Mortgage Fore- closure. Whenever, in case of a mortgage given by the husband before marriage, or to secure purchase money of land mortgaged, or in case of a mortgage where the wife shall have joined with her husband, the mortgagee, or those claiming under him, shall, after the death of -the husband, cause the mortgaged premises to be sold by virtue of such mortgage, and any sur- plus shall remain after the payment of the amount due on the mortgage and the cost and charges of the sale, the widow of the mortgagor is entitled to the interest or income of one-third of such surplus for her life as dower. 20 100. Dower when Heir Pays the Mortgage. In either of the cases mentioned in the foregoing section, if the heir pays and satisfies the mortgage, the amount so paid should be deducted from the value of the land, and, after such deduction, the -widow is entitled to have set out to her for her dower in the mortgaged land, the value of one-third of the residue. 21 101. Estimating Dower in Land Aliened by Husband. When a widow becomes entitled to dower in land which the husband has aliened in his life time, and such land shall have . been enhanced in value after the alienation, such land must be estimated, in setting out the widow's dower, according to its value at the time of its alienation. 22 A proceeding to which a wife was not a party will not cut off her right of dower. A sale under a decree in partition proceedings, to which the husband is a party and the wife is not, will not bar her right of dower. 23 17. C. L. '15, (11657); Howell, shall, 139 Mich. 123, 102 N. W. 2nd. Ed.. 10913. G58. 18. Baker v. Pierson, 5 Mich. 21. C. L. '15, (11659) ; Howell, 456; Crippen v. Morrison, 13 2nd. Ed., 10915; Bemis v. Con- Mich. 23; Ladue v. D. & M. R. R. ley, 49 Mich. 392, 13 N. W. 789; Co., 13 Mich. 280; Caruthers v. Burrall v. Bender, 61 Mich. 60S, Humphrey, 12 Mich. 270. 28 N. W. 731; Bowles v. Hoard, 19. Newton v. Sly, 15 Mich. 71 Mich. 150, 39 N. W. 24; Snyder 396. v. Snyder, 6 Mich. 470. 20. C. L. '15, (11658); Howell, 22. C. L. '15, (11660); Howell, 2nd. Ed., 10914; Burrall v. 2nd. Ed., 10916. Bender, 61 Mich. 619, 28 N. W. 23. Greiner v. Klein, 28 Mich. 731; Bowles v. Hoard, 71 Mich. 12 (Campbell J. dissenting). 150, 39 N. W. 24; Hall v. Mar- 86 ASSKJNMKNT P.Y PIJOIJA'l K COlUT 103 Assignment of Dower 102. Dower May be Assigned by Probate Court When. When the widow's claim of dower is admitted, or is not disputed by the heirs, devisees, or persons claiming under them or either of them, it may be assigned to her. in whatever counties the hind may lie, by the judge of probate for the county in which the estate of the husband is settled, upon the application of the widow or any other person interested in the land, not ire of which application must be given 1o all persons iirterested. in such manner, as the judge of probate shall direct. 24 103. How Dower Assigned by Probate Court. When the widow's right to dower is admitted by the heirs or those holding under them, and an application is made to the probate court to have this dower assigned, the judge of probate is required to issue his warrant for that purpose to three discreet and disinterested persons, authorizing and re- quiring them to set off the widow's dower by metes and bounds when it ran be done without injury to the whole estate. 25 In an application to the judge of probate for the assignment of dower, it is advisable that notice of the application be given to the administrator, if administration of the estate has not been closed. Imt it is not necessary in all cases. 26 The revised statutes of 1838 regarded the assignment of dower as a matter entirely between the widow and the heir or other tenants of the land, and while the statutes in regard to the assignment of dower have been somewhat modified, it is generally understood that the rule announced in the previous paragraph is still the law of this state. In the case of an insolvent estate, where it becomes necessary to sell the whole land subject to the widow's dower, the administrator should 24. C. L. '15, (13942); Howell, is also the subject of alienation, 2nd. Ed., 10917; Dower may be while the homestead interest jissi.ened in land subject to the can only he released to the owner widow's homestead right. Under of the fee. Showers v. Robin- the Michigan statutes the widow's son, 43 Mich. 511, 5 N. V. 988; right of dower and her home- Dei v. Habel, 41 Mich. 88, 1 N. stead rights arc not so far in- W. 964. consistent with each other that 25. C. L. '15, (13943) ; Howell, a claim of one Is a bar to the 2nd. Ed., 10918. other. Dower is an estate for 26. Campbell's AppeaJ, 2 Doug, life and may continue after the (Mich.) 140. homestead right has ceased. It 87 104 CURTESY, DOWER AND ASSIGNMENT be notified of the application, and in all cases such notice should also be given to the heirs, or those claiming under them. 27 A widow's dower may be assigned at any time, either before or after administration. She is under no necessity or obliga- tion to await the administration proceedings to have her dower assigned. 28 Where the widow is compelled to -resort to equity to obtain her dower and her share in the estate of her husband, the court will retain jurisdiction for ,the purpose of disposing ,of the whole question of dower, mesne profits and distribution, and where a bill in equity is filed to determine the right of dower, partition and assignment may be made in the same suit. 29 104. Proceedings and Commissioner's Oath. Commissioners appointed by the probate court to set off dower must be sworn to the faithful discharge of their duties, and they are required as soon as may be to set off the dower according to the command of their warrant, and to make to the probate court a return in writing of their doings, with an account of their charges and expenses, and if such report is accepted, confirmed and recorded, and a certified copy thereof recorded in the office of the register of deeds of the county where the land is situated, the dower remains fixed and certain unless such confirmation is set aside or reversed on appeal. One half of the costs of the proceedings is required to be paid by the widow and the other half by the adverse party. 30 In partition proceedings between the widow and the heirs where the widow has both dower and homestead rights, the assignment of dower should be in the homestead land if pos- sible. 31 105. Dower in Land not Severable. When the estate out of which dower is to be assigned con- sists of a mill or other tenement which cannot be divided 27. King v. Merritt, 67 Mich. 194, 203; Brown v. Bronson, 35 194, 34 N. W. 689. Mich. 415, 419. 28. White v. Spaulding, 50 30. C. L. '15, (13944) ; Howell, Mich. 26, 14 N. W. 684; King v. 2nd. Ed., 10919. Merritt, 6.7 Mich. 194, 34 N. W. 31. Robinson v. Baker, 47 689. Mich. 619, 11 N. W. 410. 29. Miller v. Stepper, 32 Mich. WIDOW MAY OCCTI'Y WITH HKIUS 5106 without, damage to the whole, and in all cases where the estate cannot be divided by metes and hounds, the widow's dower may be assigned out of the rents, issues and profits thereof, to be had and received by her as a tenant in common with the other owners of the estate. 32 106. Widow may Occupy with Heirs if they do not Object. By statute a widow entitled to dower may continue to occupy the land with the children or other heirs of her de- ceased husband, or may receive one third part of the rents, issues and profits thereof, without having her dower assigned, so long as the heirs or others interested in the land do not object. 38 Under this section of the statute, a widow has a right to occupy the premises in which she is entitled to dower, with the children or other heirs of her deceased husband, until some steps are taken to assign her dower or to partition the estate, 8 * and such occupancy by the widow is not adverse to the re- maindermen. 85 A wife who, after the death of her husband, continues by common consent to occupy the homestead without assignment of dower, the children remaining with her as long as they choose and returning home at pleasure, holds the premises, not as a life tenant, but as a tenant in common with the children. Under such circumstances the widow cannot be charged with rent, nor will she be permitted to charge the estate for taxes paid by her. 80 32. C. L. '15, (13945) ; Howell. 2nd. Ed. 810920. 33. C. L. '15, (11661); Howell, 2nd. Ed., 10921. 34. Zoellner v. Zoellner, 53 Mich. 627, 19 N. W. 556; Bene- dict v. Bui-man, 90 Mich. 402, 51 N. W. 461. t 35. Lumley v. Haggerty, 110 Mich. 552, 68 N. W. 243. 36. In Re Graff's Estate, 123 Mich. 56, 82 X. W. 248. 89 CH-APTER XI. \ BARBING DOWER AND ELECTION. 107. Methods of Barring Dower by Wife or Widow. 108. Dower Barred by Antenuptial Jointure. 109. How Assent Expressed. \ 110. Antenuptial Settlement. 111. Election in Case of Jointure or Pecuniary Provisions. 112. Election in Case of Provision by Will of 'Husband. 113. Election. What Constitutes. 114. New Assignment if Widow Lawfully Evicted'. 115. Rights of Dower of Non-Residents and Aliens. 107. Methods of Barring Dower by Wife or Widow. It is provided by statute that "a married woman residing in this state may bar her right of dower in any estate conveyed by her husband, or his guardian, if he be under guardianship, by joining in the deed of conveyance and acknowledging the same, or by joining with her husband in a subsequent deed acknowledged in like manner, or by deed executed by the wife alone to one who has theretofore acquired and then holds the husband's title, provided the intent to bar her right of dower shall be expressed in said deed." 1 A wife's parol agreement to release her right of dower is not valid, nor will a covenant by a widow against her own act in a deed given by her as administratrix, in her representative capacity, of land belonging to her deceased husband, bar or estop her from claiming dower therein. 2 This section contemplates that a married woman can bar her dower by joining in a deed with her husband, and acknowl- 1. C. L. '15, (11679), (12725- free from fraud, still, when the 30) ; Howell, 2nd. Ed., 10922. purchase and sale of land in this 2. Wright v. DeGroff, 14 Mich. state by a non-resident husband 164; Hayes v. Livingston, 34 is a part of a scheme to Mich. 392. While non-resident perpetrate a fraud upon the wife wives are not entitled to dower for the purpose, of depriving her in lands in this state which have of dower, the principles laid been conveyed by the husband down in Legare v. Semple have while a non-resident, (Ligare v. no application Bear v. Stahl, 61 Semple, 32 Mich. 449), in cases Mich. 215, 28 N. W. 69. 90 MKTHOU or r.AKUI.NCi LoWKK 107 edging (lie same in tin- inainier required by law. A deed not acknowledge* 1 by her \\ill not bar her right of dower even although she may have signed the same. 3 A release if dower procured by fraud, undue influence, or for an insntlicient consideration, will be set aside. 4 . It is not i lie policy of the law to favor the separation of husband and wife with or without divorce, and a contract between husband and wife providing for a separation, or which is liable to favor one which has not yet taken place, will not be sustained. But where a separation has actually taken place, or where the husband and wife have fully decided to separate, a release of dower to the husband will be sustained which does not spring from fraud or coercion, and which con- templates a suitable provision for the wife and children, if any, by an equitable division of the property."' A husband, by will or otherwise, cannot bar his wife's right of dower, nor can she be divested of such right except by statute or her own voluntary act. Nor will equity compel performance by her of her husband's agreement that she shall release her dower. 7 The recovery of dower may be barred by the statute of limi- tations. 8 Where, on a decree for separate maintenance, no provision is made for a division of the property, and the husband sub- sequently inherits land which he conveyed without the wife's signature, the widow is .not barred of her dower interest in the laud so conveyed. 9 A valid tax title will cut off dower rights. 1 " bin such dower rights cannot be destroyed or cut off by proceedings in par 3. Maynard v. Davis. 127 198. Mich. 571, 578. 86 N. W. 1051. 7. Weed v. Terry 2 Doug. The method of barring dower by (Mich.) 344, overruling on this Jointure as provided by C. L. '15. noint the same case reported in (11663), Howell. 2nd. Ed.. 10923, Walker's Chancery, 501; Rich- 10924, does not exclude or pro- mond v. Robinson, 12 Mich. 193; hibit the method by antenuptial Buchoz v. Walker, 19 Mich. 224; agreements adopted by the Ligare v. Semple, 32 Mich. 443. parties Hocken berry v. Donovan, 8. Butcher v. Butcher, 137 170 Mich. 370, 136 N. W. 389. Mich. 392, 100 N. W. 604; Beebe 4. Miller v. Stepper, 32 Mich. v. Lyle, 73 Mich. 114, 40 N. W. 194. 944. 5. Randall v. Randall, 37 9. Killackoy v Killackey, 156 Mich. 563; Rhoades v. Davis, 51 Mich. 127, 120 N. W. 680. Mich. 306, 311, 16 N. W. 659. 10. Robhins v. Barron, 32, 6. Miller v. Stepper, 32 Mich. Mich. 39. 91 108 BARRING DOWER AND ELECTION titiou, to which the claimant is not a party, 11 nor by sale of land of the claimant's husband on execution against him. 12 A dower righ^: cannot be established in land, the deed of which to claimant's husband has never been recorded, where the title to the land has passed to subsequent purchasers in good faith. 13 108. Dower Barred by Antenuptial Jointure. "A woman may also be barred of hep dower in all the land of her husband, by jointure settled on her with her assent before the marriage, provided such jointure consists of a freehold estate in the lands for the life of the wife at least, to take effect in possession or profit immediately on the death of her husband." 14 An antenuptial agreement by which a woman, in considera- tion of five dollars and of love and affection, releases all right of dower which, upon fhe death of her intended husband, she as his widow may have in his estate, is not sufficient to bar her dower therein. 15 109. How Assent Expressed. "Such assent shall be expressed, if the woman be of full age, by her becoming a party to the conveyance by which it is settled, and if she be under age, by joining with her father or guardian in such conveyance." 16 110. Antenuptial Settlement. The statute also provides that "any pecuniary provision that shall be made for the benefit of an intended wife, and in lieu of dower, shall, if assented to as provided in the preceding section (C. L. '97, 8932; Howell, 2nd Ed. 10924), bar her right of dower in. all the lands of her husband." 17 11. Greiner v. Klein, 28 Mich. 16. C. L. '15, (11664) ; Howell, 12. 2nd. Ed., 10924; In re Falling's 12. Snyder v. Snyder, 6 Mich. Estate, 93 Mich. 274, 277, 52 N. 470. W. 1116. 13. Wheeler v. Smith, 55 Mich. 17. C. L. '15, (11665) ; Howell, 355, 21 N. W. 370. 2nd. Ed.. 10925; 6 Johns. Ch. 14. C. L. '15, (11663); Howell, 194; 1 Johns. 307; Thompson v. 2nd. Ed., 10923. Tucker-Osborn, 111 Mich. 470, 69 15. In re Estate of Pulling, N. W. 730. 93 Mich. 274, 52 N. W. 1116. 92 ELECTION IN CASE OF WILL OF HlSKA.Mt Anti'iiii].ii;il contracts may be enforced in a court of equity by a hill for specific performance. 18 111. Election in Case of Jointure or Pecuniary Provisions. If a jointure or pecuniary provision be made for the benefit of an intended wife, before marriage, and without her assent, or if it be made after marriage, she must make her election, after the deatli of her husband, whether she will take such jointure or pecuniary provision, or be endowed of the land of her husband ; hut she is not entitled to both. 10 112. Election in Case of Provision by Will of Husband. If land is devised to a woman, or other provision -made for her by the will of her husband, she must^make her election whether she will take the land so devised, or the provision so made, or whether she will be endowed of the land of her husband ; but she will not be entitled to both, unless it plainly appears by Ihe will to have been so intended by the testator. 20 The election which the widow is required to make is between the provisions in the will, or other provisions mentioned, and dower in the land of which her husband died seized. Her election to take under* the will does not bar her dower in land winch the husband had conveyed in his life time and during the marriage, by conveyance in which she did not join. 21 A widow of a testator dying without issue, who elects under the statute (C. L. '07, 8935; Howell, 2nd Ed. 10927), to take under the statute rather than under the will, becomes entitled to the dower interest in his land provided for by C. L. '97. 8918; Howell, 2nd Ed. 10910, and not to the one half interest in his land provided for by the statute of descent ; a wife may be cut off from the benefit of the statute of descent by the provisions of her husband's will. 22 A widow's relinquishment of dower, and her acceptance of the provisions of the will, makes her a creditor of the estate on the same footing with other creditors, and if the estate is 18. Thompson v. Tucker-Os- N. W. 680. born, 111 Mich. 470, 69 N. W. 730; 20. C. L. H5, (11666) ; Howell, Koch v. Koch, 126 Mich. 187, 85 2nd. Ed., 10927. X W. 455. 21. Westbrook v. Vanderburgh, 19. C. L. '15. (11666); Howell, 36 Mich. 30; Killackey v. Kil- 2nd. Ed.. 510926; 6 Johns. Ch. lackey, 156 Mich. 135, 120 N. W. 194; Koch v. Koch, 126 Mich. 189, 680. 85 N. W. 455; Killackey, v. 22. Stearns v. Perrin, 130 Killackey, 156 Mich. 127, 135, 120 Mich. 456, 90 N. W. 712. 93 113 BARRING DOWER AND ELECTION insufficient her provision can only be paid pro rata with other creditors. 23 113. Election. What Constitutes. When a widow is entitled to make an election whether she will take under her husband's will, or under the provisions of the statute, she is deemed to have elected to take such jointure, devise or other provision, unless within one year after the death of her husband she shall commence proceedings for the assign- ment or recovery of her dower. 24 The statute does not permit the widow to make two elections, one accepting the terms of the will as to real estate and rejecting its terms as to personal property. 25 , If a widow fails to commence proceedings for the assign- ment or recovery of her dower within one year after the death of her husband, as provided by statute, and petitions the pro- bate court to proceed under the provisions of the will and allow her> a reasonable sum out of the estate, instead of her dower interest in lieu thereof, she waives her right of dower, and has elected to take under the will, 26 but this does not waive her homestead right if one exists. 27 The statutory right of a widow to elect to take under the provisions of the statute in lieu of the terms of the will is- a personal right and' not assignable. 28 114. New Assignment if Widow Lawfully Evicted. If a woman is lawfully evicted of lands assigned to her as dower or settled upon her by jointure, or is deprived of the provision made for her by will or otherwise, in lieu of dower, she may be endowed anew, in like manner as if such assign- ment, jointure, or other provision had not been made.-' 1 X 115. Rights of Dower of Non-Residents and Aliens. "A woman, being an alien, shall not on that account be barred of her dower, and any woman residing out of the state 23. Tracy v. Murray, 44 Mich. 80; In re Bloss' Estate, 114 Mich. 109, 6 N. W. 224. 204, 72 N. W. 148. 24. C. L. '15, (11668) ; Howell, 27. Koster v. Gillen, 124 Mich. 2nd. Ed., 10928. 149, 82 N. W. 823. 25. In re Bloss' Estate, li4 28. In re Service's Estate, 155 Mich. 204, 72 N. W. 148. Mich. 179, 118 N. W. 948. 26. Koster v. Gellen, 124 Mich. 29. C. L. '15, (11669) ; Howell, 149, 82 N. W. 823; In re Smith's 2nd. Ed., 10929. Estate, 60 Mich. 142, 27 N. W. 94 KKJIITS or nowr.u or xox UKSIKKXTS AXI> AI.IKXS !!."> shall bo cni ii led m dower of the land of her deceased husband, lying in this' state, of which her husband died seized, and the same may be assigned to her or recovered' by her in like man IHT as if she and her deceased husband had been residents within this state at the time of his death. 80 This section <(.'. L. '1)7, 8938; Howell, 2nd Ed. 10930), negatives the right to dower of a widow residing out of the state at the time of her husband's death, except in land of which he died seized. The non-residence mentioned refers to the time of the husband's death/' 11 But in Ligare v. Semple, 32 it is held that if the woman is a non-resident at the time her husband conveys absolutely and divests himself entirely of his seisin and estate, there can be nothing for the riijit of dower to attach to. She is a non- resident, and the estate and seisin are gone, and the same estate and seisin can never return. Where a husband at the time of his death has lost title to land by adverse possession, his non-resident widow's dower right is also extinguished. The statute gives a non-resident widow dower in only the lands of whicli the husband died seized. 33 30. C. L. '15, (11670); Howell. 200. 2nd. Ed., 10930; See R. S. 1838, 32. Ligare v. Semple, 32 Mich, page 265, Sec. 15, which does 444. not contain the words "of which 33. Putney v. Vinton, 145 the husband died seized." Mich. 219, 108 N. W. 655. 31. Pratt v. Tefft, 14 Mich. 191, 95 CHAPTER XII. EIGHTS, DUTIES AND OBLIGATIONS OF DOWRESS. 116. Repairs, Waste, Etc. 117. Widow'sMlight to Remain in Dwelling House and Have Support. 118. Damages for Withholding Dower. 119. Measure of Damages for Withholding Dower. 120. No Damages Estimated on Improvements. 121. Damages when Heir Has Aliened the Land. 122. Assignment of Dower as Bar. 123. Collusive Recovery of Dower as against Infant Heirs. 116. Repairs, Waste, Etc. Every woman endowed with land is required to maintain the house, tenement, appurtenances and fences in good repair, and if she commits or suffers any waste to be committed, she is liable to the person or persons having the next immediate estate of inheritance therein for all damages occasioned by any waste committed or suffered by her. 1 It is also her duty to pay and discharge her just proportion of all taxes and public burdens laid upon the premises while her estate lasts. And where she holds by virtue of her dower right, in common with others, she also is obliged to bear her just proportion of the expenses necessary to keep the common property in repair. The common owners are liable to contribution to each other for their just proportion of taxes and repairs for their com- mon benefit, and this may be recovered in an action at law. 2 ' 117. Widow's Right to Remain in Dwelling House and Have Support. The statute permits a woman to remain in the dwelling house of her deceased husband free of rent, for one year after his death, and to have her reasonable sustenance out of his estate for the same period. 3 1. C. L. '15, (11671); Howell, Zoellner, 45 Mich. 358, 8 N. W. 2nd. Ed., 10931. 57; Kitchell v. Midgett, 37 Mich/ 2. Rea v. Rea, 63 Mich. 268, 86; Covert v. Morrison, 49 Mich. 29 N. W. 703. 136, 13 - N. W. 390; Zoellner v. 3. C. L. '15, (11672); Howell, Zoellner. 53 Mich. 620, 19 N. W. 2nd. Ed., 10932; Pettiford v. 96 MEASURE OF DAMASKS FOR WITHHOLDING DOWER 119 It is the duty of a widow who applies for an allowance out of her husband's estate, after the expiration of the statutory year, to make some showing of her needs and circumstances if required by the probate judge. 4 The statute gives the widow the absolute right to her reasonable sustenance out of her husband's estate for the period of one year after his death, ami this is a vested right which the probate court has no authority to withhold from her. 5 The court may in its discretion allow her support out of her husband's estate after the statutory period of one year. 118. Damages for Withholding Dower. Whenever in an action brought for that purpose, a woman shall recover her dower in lands of which her husband shall have died seized, she shall be entitled also to recover damages for the withholding of such dower. Before dower is assigned the rents and profits of the la ml go to the administrator, if necessary to pay debts, but if the estate is solvent, and the rents and profits of the land are not needed to satisfy the claims of creditors, the widow will be entitled to her share of them from the time of the husband's death. 7 1 19. Measure of Damages for Withholding Dower. Such dn mages shall be one-third part of the annual value of the mesne profits of the lands in which she so recovered her dower, to be estimated in a- suit against the heirs of her husband, from the time of his death : and in suits against other persons, from the time of demanding her dower of such per- sons. 8 556; Rea v. Rea, 63 Mich. 263, r>0 N. W. 319. 29 N. W. 703; Pulling v. Durfee, 4. Pulling v. Durfee, 88 Mich. 85 Mich. 34, 48 N. W. 48. A 387, 50 N. W. 319. widow is entitled as matter of 5. Bacon v. Judge of Probate, right to her reasonable susten- 100 Mich. 189, 58 N. W. 835; ance out of the estate of her de- Brown v. Joiner, 77 Ga. 232; ceased husband for one year Pulling v. Judge of Probate, 88 after his death, and in case he Mich. 387, 50 N. W. 319; Bliss v. died testate, the probate judge Probate Judge, 149 Mich. 271, 112 may use his discretion as to con- N. W. 911. tinning the allowance djirijig the 6. C. L. '15, (11673); Howell, progress of the settlement of the 2nd. Ed., 10933; Rea v. Rea, 63 estate, but never for a longer Mich. 264, 29 N. W. 703. period than until the widow's 7. Miller v. Stepper, 32 Mich. share is assigned to her Pulling 199, 200. v. Judge of Probate, 88 Mich. 387, 8. C. L. '15, (11674); Howell, 97 120 RIGHTS, DUTIES AND OBLIGATIONS OP DOWERESS The bringing of an action of ejectment to recover dower is a sufficient demand, and if the widow recovers dower in such action, she may institute supplementary proceedings to re- cover mesne profits without any further demand. 9 120. No Damages Estimated on Improvements. Damages for withholding dower cannot be recovered for the use of any permanent improvement made after the death of the husband by his heirs, Or by any other persons claiming title to the land. 10 121. Damages when Heir Has Aliened the Land. If a widow recovers dower iu land aliened by the heir of her husband, she is entitled, in an action on the case, to re- cover of such heir her damages for withholding dower, from the time of the death of her husband to the time of alienation by the heir, not exceeding six years in the whole; and the amount which she shall be entitled to recover from such heir shall be deducted from the amount she would otherwise be entitled to recover from such grantee, and any amount recov- ered as damages from such grantee shall be deducted from the sum which she would otherwise be entitled to recover from such heir. 11 122. Assignment of Dower as Bar. When a widow has accepted an assignment of dower, in satisfaction of her claim upon all the land of her husband, such acceptance is a bar to any further claim of dower against the heir of such husband, or any grantee of such heir of such husband, unless such widow shall have been lawfully evicted of the land so assigned to her as such dower. 12 123. Collusive Recovery of Dower as against Infant Heirs. If a widow who is not entitled to dower shall, during the infancy of the heirs of her husband, or any of them, or of any 2nd. Ed., 10934; Killackey v. 10. C. L. '15, (11675) ; Howell, Killackey, 166 Mich. 311, 131 N. 2nd. Ed., 10935. W. 519. 11. C. L. '15, (11676) ; Howell, 9. Killackey v. Killackey, 166 2nd. Ed., 10936. Mich. 315, 131 N. W. 519; Fuller 12. C. L. '15, (11677); Howell, v. Hubbard, 7 Cow. (N. Y.) 13, 2nd. Ed., 10937; Westbrook v. 16 Am. Dec. 423. Vanderburg, 36 Mich. 33. 98 'COLLUSIVE RECOVERY OF DOWER 123 person entitled to the land, recover dower by the default or collusion of the guardian of such infant heir or other pepsor, such heir or other person so entitled shall not be prejudiced thereby, but when he becomes of full age he may bring an action against such widow to recover the lands which were wrongfully awarded to her as dower. 13 13. C. L. '15, (11678) ; Howell, 2nd. Ed., 10938. 99 CHAPTER XIII. BARRING DOWER OF INSANE PERSONS AND MINORS. I 124. Insane, Imbecile, Idiotic and Minor Married Women. 125. Proceedings Contents of Petition. 126. Order and Notice of Hearing. 127. Proceedings: Appearance and Answer. 128. Guardian's Sale of Wife's Interest. 129. Disposition of Fund. 130. Barring Minor's Dower. 131. Award of Money in Lieu of Dower. 132. Dower Claimed by Two or More Widows. 12-1. Insane, Imbecile, Idiotic and Minor Married Women. Under certain circumstances and conditions the right of dower of insane, imbecile, or idiotic married women may be barred by judicial proceedings. If the wife has become insane, imbecile, or idiotic, or for any cause shall be unable from defective intellect to join with her husband in the conveyance of real estate, and shall have remained in that condition for more than two years, or when it shall be made to appear to the court that she is incurably insane, she may be barred of her right of dower in the lands of her husband by the order and decree of a court of chancery. 1 125. Proceedings. Contents of Petition. In the cases mentioned in the last section, the husband of such insane, imbecile, or idiotic married woman, or any person interested in such real estate, may apply to the circuit court in chancery of the county where such land or any part thereof is situated, by a petition under oath, for the appointment of a guardian and for leave to sell the inchoate right of dower of such married woman. ^ The petition must state: first, the name, residence and age of the husband, as near as can be ascertained; second, the nature of the disability of such married woman and the length of time.it has existed; third \ a full description of the land and 1. C. L. '15, (12725) ; Cummins Howell, 2nd. Ed., 10939. & Beecher's Mich. Judicature Act; 100 Al'I'KAKAM'K A M A.NSUKl: 127 premises in this state to be affected by such proceedings; fourth, the value of each parcel of real estate, and the amount of em-uinln-ance on it i if any I not affected by, or prior to, her la i in of dower; fifth, if the real estate is to be sold by the hnsliand. or lias been sold by him, the exact amount of the consideration of such sale as made or agreed upon; and, sixth, the reasons why- such sale is desirable to such husband or other person. 2 126. Order and Notice of Hearing. Upon the tiling of such petition, the said circuit court in -ham-cry shall enter an order that the petition be heard on a certain day, and notice of the hearing be given by publication or otherwise, in such manner and to such persons as said court shall direct. 8 The question of the manner in which and to whom notice of t he* application and hearing shall be given seems to be left entirely to the discretion of the court. It would probably not be sufficient to serve such notice on the wife personally, for the reason that the petition itself, if prepared in accordance with the statute, must show that she is incompetent to under- stand and know the effect and purpose of such service. Notice by publication would be no more effectual so far as the wife's competency to understand and comprehend its purpose is con- cerned. If the incompetent wife is already under guardian- ship, the most effectual way of insuring the protection of her rights would probably be to serve notice of the hearing on such guardian. If she lias no guardian, such notice ought to be served on her nearest relation. Whatever method of service is adopted the court should carefully guard the rights of the incompetent wife and see to it that such notice is given as will bo likely to protect her rights fully. 127. Proceedings Appearance and Answer. At the time appointed for tho hearing it should le made to appear to the satisfaction of the court that notice of such hearing has been served in the manner directed in the order. The wile may appear in person or by counsel, or by guardian ml liii-ni nppninted as in other cases by the court, and may answer such petition within the time and in such manner as the court may direct. 2. -C. L. '15, (12726) ; Cummins 3. C. L. '15, (12727) ; Cummins & Beecher's Mich. Judicature Act, & Beecher's Mich. Judicature Act, 8849; Howell, 2nd. Ed., 10940. 5850; Howell, 2nd. Ed.. $10941. 101 128 BARRING DOWER OF INSANE PERSONS Upon the filing of the answer the case is deemed at issue. When the case is at issue, or if the wife shall fail, to appear, the court may proceed summarily, upon oral or written evi- dence taken under its order, to hear and determine the case, or in its discretion may refer it to a circuit court commissioner, or a special commissioner appointed by the court, to take proofs and report the same to the court, with his opinion thereon : first, as to the insanity or imbecility of the respon- dent; second, as to the propriety or necessity of selling said real estate, or of barring the respondent's right of dower therein: and third, the cash value at that time of her dower interest in said premises, taking into consideration the respec- tive ages of said husband and wife. Upon the closing of proof, if taken before the court, and upon the coming in of the commissioner's report, if the case has been referred to a commissioner, the court will consider the same, and enter such order and decree as shall be just' and equitable. If the court finds that the respondent is insane, and that it is desired that her right of dower should be barred, the then present value of such dower will be fixed by the court. After the present value of the dower has been fixed, the court should appoint a guardian of such insane person. The husband cannot be appointed as such guardian. The guardian appointed must give a bond in such sum and with such sureties as the court may direct, conditioned to receive and invest any money that may come into his hands for the sole use and benefit of his ward, under the order and direction of the court, both as to its investment and the disposition of the income thereof. 4 128. Guardian's Sale of Wife's Interest. Upon the approval of such bond by the court, the guardian may sell the interest of such married woman in such land .at private sale, but not for a less sum than the value fixed by the court. He may join with the husband in a conveyance, or if the husband has previously sold and" conveyed the land, the guardian may by separate deed convey such right of dower to the husband's grantee or grantees, or his or their heirs or assigns, but to no other person. "Such conveyance shall in all cases be as effectual to bar the right of dower of said married woman as if she had, being 4. C. L. '15, (12728); Cummins 851; Howell, 2nd. Ed., 10942. & Beecher's Mich. Judicature Act, 102 AW.\K1 or \lo\KY IN LIEU OF DOWER 131 ol -"'mid mind, joined her husband in a deed of such prem- ises." 5 129. Disposition of Fund. "Said guardian shall apply the income of said money to the support of said married woman, or allow the same to accmmi late, as the court shall direct; and upon the restoration of said married woman to a sound mind shall, upon the order of the court, transfer to her all of the funds in his hands, and upon her death, shall deliver the same to her husband, if he shall he living at her death, and if not living, then to her personal representative. 6 130. Barring Minor's Dower. "Any married woman residing within this state, having arrived at the age of eighteeen years, may bar her right of dower in any estate conveyed or mortgaged by her husband, by joining in the deed of conveyance or mortgage and acknowl- edging the same as now required by law for the acknowledg- ments of deeds, and may do any other act concerning her rights in lands owned by her husband which she might do if she were twenty-one years of age. 7 131. Award of Money in Lieu of Dower. In any suit commenced by a widow for the recovery of dower in lands which were aliened by her husband in his life- time, and where her dower therein cannot be set off by metes and bounds without injustice or manifest injury to the widow or the owners, the court having cognizance of the case may award a sum of money in lieu of dower to be paid to the widow, or may assign to her, as tenant in common, a just proportion of the rents, issues and profits of such lands, regard being had in all cases to the true value of the lands at the time of sneh alienation by the husband, and of the probable duration of the life of the dowress, at the time such money shall be adjudged, or such rents, issues and profits shall be awarded to her. 8 5. C. L. '15. (12729); Cummins 7. '15. (11679); Howell, 2nd. & Beecher's Mich. Judicature Act, Ed., 10945. 852; Howell, 2nd. Ed.. $10943. 8. C. L. '15, (12731); Cummins 6. C. L. '15. (12730) ; Cummins & Beecher's Mich. Judicature Act, & Beecher's Mich. Judicature Act, 854; Howell. 2nd. Ed., $10946: 853; Howell. 2nd. Ed., 10944. Rockwell v. Rockwell, 81 Mich. 493, 46 N. W. 8. 103 132 BARRING DOWER OF INSANE PERSONS The propriety of converting into money such property as cannot be partitioned is recognized by statute. The estate of a doweress may be so commuted. 9 132. Dower Claimed by Two or More Widows. It sometimes happens that two or more widows claim dower rights in the same land. In such cases the statute provides that "when dower in any lands shall be claimed by two or more widows, the one whose husband was first seized therein shall be first entitled thereto ; and in all cases where dower in any lands shall have been assigned, or where it shall appear that the owner or owners, or the person or persons having an interest therein, shall have made full satisfaction to, and have obtained a discharge from, the person recovering or having a prior right to dower therein, by reason of the prior seisin of her husband, the said land shall not be subject to any other claim of dower during the lifetime of the person so recovering or who has received satisfaction and given a discharge as aforesaid." 10 9. Brown v. Bronson, 35 Mich. 148 Mich. 1, 108 N. W. 1105. 415. A husband cannot by any 10. C. L. '15, (11687); Howell, act of his prejudice his wife's 2nd. Ed., 10947. right of dower. Chase v. Angel, 104 CHAPTER XIV. HOMESTEAD RIGHTS OF WIFE OR WIDOW. 133. Constitution. 134. What Constitutes Homestead. 135. Object of Exemption. 136. Land Purchased for Homestead ;-^Intention. 137. Title in Fee not Necessary. 138. Homestead in Land Held in Joint Tenancy or Tenancy in Common. 139. Homestead Rights as against Mechanic's Lien. 140. Alienation of Homestead. 141. Abandonment of Homestead. 142. Homestead Exemption to Family after Death of Hushand. 143. Homestead Rights of Widow when Owner Dies Leaving no Children. 133. Constitution. A mortgage or deed of a homestead of a married man is void unless signed by the wife. 1 134. What Constitutes Homestead. Under the constitution of this state a homestead consists of not to exceed forty acres of land and the dwelling house there- on and the appurtenances, to be selected by the owner, and not included in any town plat, city or village ; or instead there- of, at the option of the owner, any lot in any city, village or recorded town plat, or such -part of lot as shall be equal theretoy- and the dwelling house thereon and its appurte- nances, owned and occupied by any resident of the state, not exceeding in value fifteen hundred dollars, and is exempt from forced sale on execution or any other final process against the owner. 2 135. Object of Exemption. The object of the homestead exemption is not only for the benefit of the owner but that of his wife and children as well. 8 1. Const. 1908, Art. XIV, Sec. 2. 3. Beecher v. Baldy, 7 Mich. 2. Const. 1908, Art. XIV, Sec. 2. 488; Snyder v. People, 26 Mich., 105 136 HOMESTEAD RIGHTS OP WIFE OR WIDOW It is an absolute right, and not a mere personal privilege which, to be effectual, must be claimed. 4 Ownership and actual occupancy of a homestead consisting of separate parcels of land within the prescribed quantity and value is a sufficient selection to secure the exemption. 5 A homestead upon unplatted land in a village is not limited to the quantity in a lot of the usual size in the platted part. 6 The fee of the land is not exempted as a homestead, but the constitution prohibits the land being sold on execution or other final process against the owner while it is occupied as a homestead. 7 136. Land Purchased for Homestead; Intention. A city lot purchased bj r a single man in contemplation of his marriage and with the intention of making it a homestead, will be exempt as such from levy and sale on execution even before any dwelling house is erected on it if the man is subsequently married and he and his wife have enclosed, im- proved and used it with the constant purpose of -making it their home, as soon as their means will permit. 8 A vacant unimproved lot with no dwelling house thereon may be exempt from levy and sale on execution if it was purchased with the intention of making a homestead for the purchaser if he encloses and occupies it and uses it with the constant in- tention of making it his home, and uses such means as he can procure within a reasonable time to erect a house thereon for his family, provided it does not exceed in quantity and value the constitutional limit. In such case the lot would be ex- empt from the date of the purchase. 9 But a widow, having only married children, and no means 106; Comstock v. Comstock, 27 232.. Mich. 97; Dye v. Mann, 10 Mich. 8? Reske v. Reske, 51 Mich. 291; King v. Moore, 10 Mich. 538. 541, 16 N. W. 887. 4. McKee v. Wilcox, 11 Mich. 9. Deville v. Widow, 64 Mich. 358; Riggs v. Sterling, 60 y Mich. 593, 31 N. W. 533; Barber v. G50, 27 N. W. 705; Stanton v. Rorabeck, 36 Mich. 399, Bouch- Hitchcock, 64 Mich. 325, 31 N. W. afd v. Bourassa, 57 Mich. 8, 23 395. N. W. 452; Griffin v. Nichols, 51 5. Beecher v. Baldy, 7 Mich. Mich. 575, 17 N. W. 63; Schofield 488; Thomas v. Dodge, 8 Mich. v. Hopkins, 61 Wis. 3, 70, 21 N. 51. W. 259; Mills v. Hobbs, 76 Mich. 6. Barber v. Rorabeck, 36 122, 42 N. W. 1084; Jossman v. Mich. 399. Rice, 121 Mich. 270, 80 N. W. 25. 7. Drake v. Kinsel, 38 Mich. 106 TITLE IN FKK NOT NECESSARY 137 with which to build a house, or prospect of any, cannot claim homestead right in a vacant lot which she has owned for up- wards of three years, and occupied only by making garden therein. Intention without occupancy cannot create a home- stead or raise homestead rights. The constitution requires both occupancy and intention. 10 137. Title in Fee not Necessary. A title in fee is not necessary to entitle an occupant of land to a homestead therein. An owner, within the meaning of the exemption law. is anyone who has an interest in and occupies the premises as his home. 11 The exemption extends to an equitable interest, not with- standing' the legal title may be in another, 12 and to a, building occupied as a homestead located on land of which the occu- pant of the building is not the owner. 18 A homestead is protected in land occupied under a contract to purchase, or under a lease. 14 The law only exempts the homestead from sale on execution, or from private sale without the concurrence of the wife, arid does not divest the right of the owner of the land, nor impair any remedy which the law gives him. 15 A homestead is protected against the claims of creditors of the person who is entitled to occupy it as a homestead, and while it is actually occupied as his home, but it does not pro- tect the person in possession of such home against the rights of the owner of the land. A married woman may convey land owned by her in fee, but occupied by herself and husband as a homestead, without his joining in the deed of conveyance, and when that is <16ne, the homestead right is extinguished as against the wife's grantee. 16 But when a husband and wife are jointly in possession of a homestead in land owned by the 10. Ware v. Hall, 138 Mich. Bevard, 13 Iowa 63; Conklin v. 70, 101 N. W. 47. Foster, 57 111. 104; Johnson v. 11. Lozo v. Southerland, 38 Richardson, 33 Miss. 462; Thomp- Mich. 168; McKee v. Wilcox, 11 son, Homestead. Sec. 176; Smyth, Mich. 358. Homestead, Sec. 117. 12. Orr v. Shraft, 22 Mich. 260. 15. Matta v. Kippola, 102 Mich. 13. Bunker v. Paquette, 37 118, 60 N. W. 300; Buckingham Mich. 79. v. Buckingham, 81 Mich. 89, 45 14. McKee v. Wilcox, 11 Mich. N. W. 504. 358; Matta v. Kippola, 102 Mich. 16. Buckingham v. Bucking- 116, 60 N. W. 300; Pelan v. De- ham, 81 Mich. 89, 45 N. W. 504. 107 138 HOMESTEAD RIGHTS OF WIFE OR WIDOW wife, the husband has a right to complain of any unlawful in- terference with his homestead rights therein. 17 138. Homestead in Land Held in Joint Tenancy or Tenancy in Common. The constitution and statutes of this state have always been liberally construed as to homestead rights. The law does not require that the person who claims certain premises as a home- stead should own the entire title. The word "owner" as used in the. constitution and statute relating to homestead rights has generally been construed to include any and all parties who have a claim or interest in the property, occupied by them as their home, although such claim or interest may be an undivided one or fall far short 1 of an absolute ownership. Thus, a homestead right may exist in land occupied and held in joint tenancy, or by husband and wife as. tenants by en- tireties. 18 So, under the homestead laws of this and other states, it is held that one who occupies land as tenant in com- mon with others may have a homestead right therein which will be protected as against claims of creditors. 19 A farm homestead right 'cannot be changed or put in jeop- ardy by the extension of village or city limits so as to bring such farm property within the limits of such city or village. 20 The homestead exemption from levy and sale on execution IF an exemption of an entirety, although a homestead may also be claimed in lands held in -joint tenancy, or by tenancy in common not exceeding the homestead limitation in quantity. 21 A temporary removal from a homestead with the intention of a speedy return does not constitute an abandonment of homestead rights. 22 17. Rome v. Kellogg, 54 Mich. rence v. Morse, 122 Mich. 27, 80 209, 19 N. W. 957. N. W. 1087. 18. Lozo v. Southerland, 38 20. Barber v. Rorabeck, 36 Mich. 168; Thomas v. Robinson, Mich. 401. 43 Mich. 502, 5 N. W. 988; Cole 21. Amphlett v. Hibbard, 29 v. Cole, 126 Mich. 571, 85 N. W. Mich. 298; Thorp, v. Allen, 46 1098. Mich. 392, 9 N. W. 443. 19. Lozo v. Southerland, 38 22. Burkhardt v. Walker, 132 Mich. 172; McCleary v. Bixby, 36 Mich. 95, 92 N. W. 778; Bunker Vt. 257; Thorn v. Thorn, 14 Iowa v. Paquette, 37 Mich. 79; Kaed- 49; Horn v. Teft, 39 N. H. 478; ing v. Joachimstachl, 98 Mich. Cleaver v. Bigelow, 61 Mich. 53, 78, 56 N. W. 1101; Hitchcock v. 27 N. W. 85; King v. Wilson, 83 Misner, 111 Mich. 180, 69 N. W. Mich. 197, 47 N. W. 106; Law- 226. 108 Mi-:riiA\i.-'s I.IKN i:5!t While property is occupied as a homestead there is no in- terest which can be taken and sold :is against the owner. The fee in land occupied as a homestead cannot be sold on an ex- ecution against Jhe owner. 23 139. Homestead Rights as against Mechanic's Lien. A homestead is protected against a mechanic's lien or a lien for materials furnished for a building erected thereon, unless the agreement for its erection is in writing and describes the premises, and is signed by the owner, and by his wife if he is a. married man. 24 The statute in relation to liens of mechanics and others pro- vides that if the title to the land against which a lien is sought to be established for buildings erected or improvements made thereon, or labor or material furnished for the same, is held by husband and wife jointly, or is held and occupied as a homostead, the lien provided for by the act shall attach to such land and improvement if the improvements be made in pursu- ance of a contract in writing signed by both the husband and the wife. 25 The right to obtain a lien on real estate for labor or ma- terials furnished is purely a statutory one. Tt is in deroga- tion of the common law. and the essential requirements of the statute must be observed. 20 The statute permits a lien on land owiied by husband and wife jointly, or occupied and held by them as a homestead. only when the improvements for which a lien is sought to be established are made in pursuance of a written conn-act signed by both <>f them. This written contract and the signature of both husband and wife are essential requirements of the law. which must be complied with in order to establish a lien in such cases. 27 23. Burkhardt v. Walker, 132 2nd. Ed., 13767. Mich. 93, 95, 92 N. W. 778; Lozo \26. Hall v. Erkfitz, 125 Mich, v. Southerland, 38 Mich. 168; 355, 84 N. W. 310; Wager v. Bris- Myers v. Weaver, 101 Mich. 477, coe, 38 Mich. 587; Knapp v. 59 N. W. 810; Hitchcock v. Mis- Swaney. 56 Mich. 345, 23 N. W. ner, 11 Mich. 180, 69 N. W. 226. 162; Sheridan v. Cameron, 65 24. Hammond v. Wells, 45 Mich. 580, 32 N. W. 894; Lindsay Mich. 11, 7 N. W. 218; Burtch v. v. Huth, 74 Mich. 712. 42 N. W. McGibbons, 98 Mich. 190, 56 N. 358; Electric Co. v. Morris, 100 W. 1110. Mich. 502, 59 N. W. 151. 25. C L. '15, (14797); Howell. 27. Frolich v. Carroll, 127 109 140 HOMESTEAD RIGHTS OF WIFE OR WIDOW 140. Alienation of Homestead. Any deed, release or mortgage (except a mortgage given for purchase money of the land) of a homestead given by a mar- ried man without the signature of his wife is yoid as to both. 28 A deed or mortgage given by a husband of his homestead, without his wife's signature, being absolutely void, a subse- quent removing or ending of the exemption, by removal from ^the homestead land and ceasing to occupy it as a home, or a subsequent deed by both husband and wife, will not revive the deed given by the husband alone or make it valid or effective. 29 But where the exempted land is a part of a larger trat in- cluded in the husband's conveyance the deed is good as to the excess or residue. 30 A husband's sole deed of a homestead is not made good by giving possession to the purchaser, but if it covers more land than that exempted by law it will be good as to the excess. 31 141. Abandonment of Homestead. A homestead is not abandoned by the mere absence of the Mich. 561, 86 N. W. 1034; Bauer v. Long, 147 Mich. 351, 110 N. W. 1059; Lumber Co. v. Wyrembol- ski, 164 Mich. 71, 128 N. W. 1083; Frolich v. Blackstock, 155 Mich. 604, 119 N. W. 906; Sheldon v. Brewer, 166 Mich. 578, 132 N. W. 117; Jossman v. Rice, 121 Mich. 270, 80 N. W. 25; Halladay v. Mathewson, 146 Mich. 336, 109 N. W. 669. 28. Dye v. Mann, 10 Mich. 291; McKee v. Wilcox, 11 Mich. 358; Ring v. Burt, 17 Mich. 465; Fisher v. Meister, 24 Mich. 447; Spyder v. People,. 26 Mich. 106; Comstock v. Comstock, 27 Mich. 97; Wallace v. Harris, 32 Mich. 0; Amphlett v. Hibbard, 29. ich. 298; Phillips v. Stauch, 20 Mich. 369; Watertown Ins. Co. v. G. & B. S. M. Co., 41 Mich. 131; Sherrid v. Southwick, 43 Mich. 515, 5 N. W. 1070; Matta v. Kip- poli, 102 Mich. 116, 60 N. W. 300. 29. Oye v. Mann, 10 Mich. 291; Amphlet v. Hibbard, 29 Mich. 298. 30. Dye v. Mann, 10 Mich. 291; Wallace v. Harris, 32 Mich. 380; Stevenson v. Jackson, 40 Mich. 702; Hanchett v. McQueen, 32 Mich. 22; Griffin v. Johnson, 37 Mich. 87; Smith v. Rumsev, 33 Mich. 183; Cooper v. Coopef, 162 Mich. 304, 127 N. W. 266. 31. Phillips v. Stauch, 20 Mich. 369"; Stevenson v. Jackson, 40 Mich. 702. The conveyance of a homestead by a debtor to his wife or others, althbugh without con- sideration, will not subject it to execution. Smith v. Rumsey, 33 Mich. 183; Matson v. Melchor, 42 Mich. 474, 4 N. W. 200; Patnode v. D'arveau, 112 Mich. 127, 70 N. W. 439, 71 N. W. 1095; Eagle v. Smilie, 126 Mich. 612, 85 N. W. 1111. These cases in effect over- rule the case of Herschveldt v. George, 6 Mich. 456. 32. Chamberlain v. Lyell, 3 Mich. 448. 33. Beecher v. Baldey, 7 Mich. 110 OWNER DIES I.KAVIM; NO CIULDKKN ill: 1 , owner from the state when his wife continues to occupy 1 1n- borne and the husband has not acquired an independent home- stead elsewhere. 33 The owner of a homestead cannot hold homestead rights in a house and lot from which he has removed with his family. and to which he has no definite intention of returning. 142. Homestead Exemption to Family after Death of Husband. The const it ul ion also exempts a homestead from the pay- ment of the debts of the deceased owner in all cases during the minority of his children. 37 The fee is not exempt, but the land only, while it is occupied as a homestead by the widow and minor children. Subject to homestead rights the lands are assets when needed to pay the debts of the estate. 38 143. Homestead Rights of Widow when Owner Dies Leaving no Children. If the owner of the homestead die, leaving a widow but no children, such homestead shall be exempt, and the rent and profits thereof shall accrue to her benefit during the time ol her widowhood, unless she be the owner of a homestead in her own right. 89 487; Penniman v. Pierce, 9 Mich. 193, 81 N. W. 916; Hoffman v. 509; Dye v. Mann, 10 Mich. 291; Busthman, 95 Mich. 538, 55 N. Dyson v. Sheely, 11 Mich. 527; W. 458. A lease of a homestead 34. Penniman v. Pierce, 9 and other real property of such Mich. 509, 528. A lease of a a nature as to exclude the wife homestead, the title to which is of possession of the homestead is in the husband, is valid if signed void without her signature. Mail- by both husband and wife al- hot v. Turner, 157 Mich. 167, 121 though the husband only Is N. W. 804; Township of Jasper v. named in the body of the instru- Martin, 161 Mich. 336, 126 N. W. ment. Barrett v. Scott, 112 473. Mich. 220, 70 N. W. 1038. 37. Constitution 1908, Art. XIV, 35. Gadsey v. Monroe, 115 Sec. 3; Zoellner v. Zoellner, 53 Mich. 282, 73 N. W. 367. An at- Mich. 625, 19 N. W. 556; Riggs tempted conveyance of a home- v Sterling, 60 Mich. 650, 27 N. W. stead by a husband without the 705; Robinson v. Baker, 47 Mich, wife's signature, though express- 621, 11 N. W. 410. ly made subject to a life estate 38. Drake v. Kinsel, 38 Mich, previously conveyed to the wife, 232; Showers v. Robinson, 43 is void. Gadsey v. Monroe, 115 Mich. 502, 5 N. W. 988. Mich. 282, 73 N. W. 367. 39. Constitution 1908, Art. 36. Smith v. Kidd, 123 Mich. XIV, Sec. 4. Ill 143 HOMESTEAD RIGHTS OP WIPE OR WIDOW Upon the death of children left by the husband, the widow stands in the same situation as if no child had been left alive. But a widow whose child dies after her husband and who marries again loses the homestead right acquired through her former husband, though she retains her dower. 40 Where a widow without children elects to take under the will which provides for a sale of the real estate and a pay- ment to her in cash in lieu of dower, she is still entitled to the homestead interest granted by the constitution. Her election to take under the will and her receipt of the proceeds of the sale do not bar her homestead rights nor estop her from claiming the same. 41 Although a widow whose child dies after her husband loses her homestead rights acquired .through her- former husband when she marries again, she retains her dower. Her second marriage ends her widowhood and with it all rights to the homestead. 42 40. Dei\v. Habel, 41 Mich. 88, 1 N. W. 964. 41. Koster v. Vellen, 124 Mich. 149, 82 N. W. 823. A homestead exemption is an absolute right and not a mere personal privilege to the owner. Hence creditors of a decedent cannot complain of a voluntary conveyance of his home- stead by the owner during his last sickness, even although he left neither wife nor children surviving him. Eagle v. Smylie, 126 Mich. 612, 85 N. W. 1111; Farrand v. Caton, 69 Mich. 243, 37 N. W. 203; Anderson v. Odell, 51 Mich. 492, 16 N. W. 870; Rhead v. Hounson, 46 Mich. 243, 9 N. W. 267; Pult v. Gellen, 47 Mich. 570, 11 N. W. 385; Ver- mont Sav. Bank ,v. Elliott, 53 Mich. 256, 18 N. W. 805; Armi- tage v. Toll, 64 Mich. 412, 31 N. W. 408; Toll v. Davenport, 74 Mich. 386, 42 N. W. 63; Cullen v. Harris, 111 Mich. 20, 69 N. W. 78, 66 Am. St. R. 380. 42. Dei v. Hable, 41 Mich. 88, 1 N. W. 964. 112 CHAPTER XV. . STATUTORY PROVISIONS IN RELATION TO HOME STEAD RIGHTS. 144. In General. 145. Statutory Definitions and Exemptions. 146. Mortgage Lawfully Obtained. 147. Selection of Homestead when Levy of Execution is Made. 148. When Officer to Make Survey. 149. How Sale Made after Survey. 150. House on Lafld of Another: Not Exempt from Sale for Taxes. 151. Appraisal and Notice when Homestead Exceeds Fifteen Hun- dred Dollars in Value. 152. How Homestead Advertised and Sold for Surplus. 144. In General. As shown in the last chapter, the constitution defines the homestead aiid prescribes the extent and value of property which may be claimed as exempt by the owner, and the right and interest of the wife and family, the widow and minor children of the deceased only. The statutory homestead exemption as prescribed by the legislature is the same as that provided by the constitution. It would not be competent for the legislature to add to or take from the limitations of the constitution in regard to the amount or value of the homestead exemption. Nor can the legislature change or modify the constitutional provisions as to the time and the conditions under which the homestead exemptions may exist 145. Statutory Definitions and Exemptions. The statutory provisions defining a homestead and exempt- ing the same from levy and sale on execution or other final process are as follows : "A homestead consisting of any quan- tity of land not exceeding forty acres, and a dwelling house thereon and its appurtenances, to be selected by the owner thereof, and not included in any recorded town plat, city or village, or instead thereof, at the option of the owner, a quan- tity of land not exceeding in amount one lot, being within a 113 145 STATUTORY PROVISIONS recorded town plat, city or village, and a dwelling house thereon and its appurtenances owned and occupied by any resident of this state, shall not be subject to forced sale on execution or any other final process from a court, for any debt or debts growing out of or founded upon contract either ex- pressed or implied made after the third day of July, A. D. 1848. This section shall be deemed and construed to exempt such homestead in the manner aforesaid during the time it shall be occupied by the widow or minor child or children of any deceased person, who was when living entitled to the benefit of this act." 1 The same owner cannot have two homesteads at the same time, nor can a homestead right exist in two distinct places. 2 The selection of a homestead need not be in writing, nor is it necessary that any other particular formality be gone, into in order to fix and preserve the rights of the owner and his family. The occupancy of the land by placing a dwelling house thereon and living in it, making the home there, is sufficient of itself to declare it a homestead, and is notice to everyone of its selection. 3 Actual residence on the land intended for a homestead is not necessary to its exemption as such if there is such occu- pancy by the owner for such purposes as are usually employed in a home, coupled with ~bona fide intention of the owner to make a home of the land. 4 Temporary absence will not cut off homestead rights, nor will the fact that the owner's wife does not live with him on the land deprive him of homestead rights. Nor will the fact that the owner's wife has abandoned him and is seeking a divorce deprive him of his homestead exemption. 5 Eemoval of the ow^ier to his father's home on account of the father's ill health, and the acceptance of a deed of another 1. C. L. '15, (12888) ; Cummins 4. Bowles v. Hord, 71 Mich. & Beecher's Mich. Judicature Act, 160, 39 N. W. 24; Reske v. Reske, 1011; Howell, 2nd Ed., 13072. 51 Mich. 541, 16 N. W. 895; De- 2. Wheeler v. Smith, 62 Mich. ville v. Widoe, 64 Mich. 593, 31 373, 28 N. W. 907; L. A. Plant N. W. 533; Mills v. Hobbs, 76 v. Lester, 150 Mich. 336, 113 N. Mich. 129, 42 N. W. 1084; Karn W. 1115. v. Hanson, 59 Mich. 380, 26 N. W. 3. Riggs v. Sterling, 60 Mich. 666. 643, 27 N. W. 705; Evans v. V. 5. Earle v. Earle, 60 Mich. 30, R. L. & D. R. R. Co., 68 Miph. 26 N. W. 822. 609, 36- N. W. 687. 114 MORTGAl.K I..V\VI IM.I.Y OBTAINKM 146 home, will not constitute .-in abandonment of the homestead it ii is tin- intention of the owner to return and not aban- don it: 146. Mortgage Lawfully Obtained. The homestead exemption docs not extend to any mortgage thereon lawfully obtained, but any mortgage or other aliena- tion of the homestead by the owner thereof, if a married man, ,is void without the signature of the wife to the same, unless sueh .mortgage shall be given to secure the purchase money of ' the land or some part thereof. 7 Where a mortgage has been executed by husband and wife, by an imperfect description of the homestead, it may bo. cor- rected like any other conveyance, and will not be postponed to an attachment or execution levy. When the husband and wife have executed a mortgage which was meant to cover their homestead, they have bound the homestead if the description is no) so defective as to make it beyond the power of the court to identify the property intended to be covered by the mort- gage. 8 A conveyance or mortgage of a homestead without the wife's signature, being void when executed, will uot.be made Valid by the husband and wife removing from and abandoning the homestead premises, and a subsequent joint conveyance by the husband and wife will stand as against the former conveyance by the husband alone. 10 Nor will the subsequent death of the wife make valid that which was void before." When the homestead is incapable of division, and is worth more th'an fifteen hundred dollars, that amount of its value, over and above all prior mortgages thereon, is exempt, and this interest may be mortgaged or conveyed by the owner and his wife, if he is married, and such mortgage or conveyance to the amount of fifteen hundred dollars will take priority' over any previous levies thereon. 12 6. Hitchcock v. Misner, 111 369. Mich. 180, 69 N. W. 226. 10. Dye v. Mann, 10 Mich. 291; 7. C. L. '15, (12889); Cummins Amphlett v. Hibbard, 29 Mich. & Beecher's Mich. Judicature Act, 298, 1012; Howell, 2nd. Ed.. 13073. 11. Shumacher v. Collins, 49 8. Byschlay v. Wagoner, 46 Mich. 597, 14 N. W. 559. Mich. 90, 8 N. W. 693; Stevenson 12. Vermont Sav. Bank v. El- v. Kurtz, 98 Mich. 494, 57 N. W. liott, 63 Mich. 256, 18 N. W. 805; 580. Lozo v. Sutherland, 38 Mich. 168. 9. Phelps v. Stanch, 20 Mich. 115 147 STATUTORY PROVISIONS The right of homestead of minor children of their deceased father, cannot be defeated by the act of their mother. She can neither abandon or convey it away so as to cut off the home- stead rights of the minor children. 13 The assignment of a land contract constituting a homestead by the husband without the signature of the wife is void; but where it appears that the failure of the wife to execute such assignment was due to advice that it was not necessary, and that she voluntarily abandoned such homestead for another, and defendant had in good faith made valuable improvements thereon and incumbered the property, she is estopped by her conduct to assert such rights in a court of equity. 14 A conveyance of her homestead rights by a wife separate from her husband, pursuant to an oral agreement of her hus- band to convey, is ineffectual. 15 147. Selection of Homestead when Levy of Execution is Made. The statute permits a levy of execution on land, a portion of which is occupied as a homestead, and a foreclosure and sale on a mortgage where the mortgage is void as to the homestead and valid as to the residue of the land covered by the mortgage, and makes provisions for selection, by the owner, of the home- stead which is exempt. The statute provides : "That whenever a levy shall be made upon, or a circuit court commissioner shall advertise for sale under any decree upon the foreclosure of any mortgage not valid as against a homestead, and so stated in such decree, the lands and tenement of the householder whose homestead has not been platted and set apart by metes and bounds, such householder shall notify the officer at the time of making such levy, or at the time of such advertising for sale, what he regards as his homestead, with a description thereof, within the limit above described, and the remainder alone shall be subject to sale under such levy or decree. If at the time of such levy or advertising for sale such householder shall fail or neglect to notify the officer making the levy or advertising such property for sale, what lie regards as his homestead, with a description thereof, the officer making the levy or advertising such property for sale shall call upon such householder to make 13. Gerber v. Upton, 123 Mich. Am. St. R. 554. 607, 82 N. W. 363; Showers v. 14. Bovine v. Selden, 155 Mich. Robinson, 43 Mich. 502, 513, 5 N. 556, 119 N. W. 1090. W. 988; Riggs v. Sterling, 60 15. Lott v. Lott, 146 Mich. Mich. 643, 652, 27 N. W. 705; 1 580, 109 N. W. 1049, Hooker & 116 ft'HEN OFFICER TO MAKE SURVEY the selection of a homestead out of said land, describing the same minutely. If after such notice the owner of the land shall fail to select his homestead, such pfficer may select a homestead out of said land for' him, and the remainder over 1 and above that part selected by the officer or by the owner of the land. ;is the case may be, alone shall be subject to sale under such levy or decree: Provided, that in making the selec- tion of the homestead out of the land levied upon or advertiser! for sale, if such selection is made by the officer making the/ low or advertising for sale, he shall select land in compact form, which land so selected by him as the homestead of the owner shall include the dwelling house and its appurtenances thereon." 10 The homestead right of an execution defendant is not for- feited by his omission to select a homestead, if, being within reach, lie is not actually notified of the levy or of the proceed- ings thereunder, and therefore does not know of any occasion to make a selection. 17 148. When Officer to Make Survey. If the plaint ill in an execution, or the complainant in a fore- closure decree, shall lie dissatisfied with the quantity of land selected and set apart as a homestead, either by the owner of the land or by the otticer making the levy or advertising the land for sale, he shall cause the land to be surveyed, beginning at a point to be designated by the owner or by the officer mak- Grant, JJ. dissenting. A wife's Mich. 560, 11 N. W. 385. signature to a direction to a But the conveyance of the re- vendor of premises by contract, mainder after the homestead to convey the premises to another, ceases is not a conveyance of the cuts off her homestead rights homestead, and if done to defraud under the contract. Stephens v. creditors will be set aside. O'Con- Leonard, 122 Mich. 125, 80 N. W. nor v. Boylan, 49 Mich. 210, 13 889. Where the equity of redemp- N. W. 519. tion in a homestead is not worth' 16. C. L. '15, (12890); Gum- more than fifteen hundred dol- mins & Beecher's Mich. Judica- lars, its conveyance is not fraudu- ture Act, 1013); Howell, 2nd. lent as to creditors of the grantor Ed., 13074; Comstock v. Corn- even though such conveyance is stock, 27 Mich. 103; Bank of without consideration. Palmer Constantino v. Jacobs, 50 Mich, v. Bray. 136 Mich. 85, 98 N. W. 340, 15 N. W. 500. 849; Dickey v. Converse, 117 17. Griffin v. Nichols, Shepard Mich. 449, 457, 76 N. W. 80; Co., 51 Mich. 575, 17 N. W. 63; Smith v. Rumsey, 33 Mich. 183; Zoellner v. Zoellner, 53 Mich. 625, Rhead v. Hounson, 46 Mich. 244, 19 N. W. 556; Kruger v. La Blanc. 9 N. W. 267; Pulte v. Gellen, 47 75 Mich. 425, 42 N. W. 853. 117 149 STATUTORY PROVISIONS ing the levy or advertising the sale, and set off the land in compact form, including the dwelling house and its appurte- nances, to the amount .which the owner is entitled to as a homestead. The expense of the survey is chargeable on the execution or decree and inay be collected therefrom. 18 Where an execution debtor occupies three village lots as a homestead, all in one enclosure, it is the duty of the officer who levies the execution to call upon the owner to make his selec- tion of a homestead, and if the owner fails to make his selection it is the duty of the officer to make it for him. 19 149. How Sale Made after Survey. After the officer has made the survey and set out the owner's homestead land, he may sell the property levied upon or in- cluded in the decree of foreclosure, and not included in that set off as homestead land, in the same manner as provided in other like cases for the sale of real estate ; and in giving a deed of the same it should be described as in the original levy, or as described in the foreclosure decree, excepting therefrom by metes and bounds, according to the certificate of the survey, the quantity set off as a "homestead. 20 / 150. House on Land of Another: Not Exempt from Sale for Taxes. A person owning and occupying a house situated on land which lie does not own is entitled to the same homestead exemption of the house as though he owned the land. 21 Neither the constitution or the statute exempts a homestead from taxation or from* a sale for taxes levied thereon. 22 18. C. L. '15, (12891); Cum- 55 N. W. 687. mins & Beecher's Mich. Judica- 20. C. L. '15, (12892); Cum ture Act, 1014; Howtell, 2nd. Ed., mins & Beecher's Mich. Judica- 13075; Riggs v. Sterling, 60 Mich. ture Act, 1015; Howell,.2nd. Ed., 657, 27 N. W. 705; Kruger v. La 13076; Averill v. Sav. Bank, 143 Blanc, 75 Mich. 425, 42 N. W. 853; Mich. 306, 106 N. W. 865. Averill v. Sav. Bank, 143 Mich. 21. C. L. '15, (12893); Cum- 306, 106 N. W. 865. mins & Beecher's Mich. Judica- 19. C. L. '15, (12890); Cum- ture Act, 1016; Howell, 2nd. Ed., mins & Beecher's Mich. Judica- 13077; McKee v. Wilcox, 11 ture Act, 1013; Howell, 2nd. Ed., Mich. 358; Banker v. Paquett, 37 13074; Averill v. Sav. Bank, 143 Mich. 79; Allen v. Crane, 152 Mich. 306, 106 N. W. 865; Geiger Mich. 380, 384, 116 N. W. 392. v. Greiner, 68 Mich. 153, 36 N W. 22. C. L. '15, (12894); Cum- 48; King v. Willborne, 83 Mich. mins & Beecher's Mich. Judica- 195, 47 N. W. 106, 9 L. R. A. 803; ture Act, 1017; Howell, 2nd. Ed., LaMont v. LaFever, 96 Mich. 195, 13078. 118 HOW HOMESTEAD ADVERTISED 152 151. Appraisal and Notice when Homestead Exceeds Fifteen Hundred Dollars in Value. When a homestead exceeds Fifteen Hundred Dollars in value, the owner does not for that reason lose the benefit of the con- stitution:! 1 and statutory exemption. Whenever in the opinion of the creditor, or an officer holding an execution or foreclosure decree against the owner of a home- stead, the premises claimed by him as a homestead are worth more than fifteen hundred dollars, such officer is required to summon six persons qualified to act as jurors, who shall, upon oath, to he administered to them by such officer, appraise the homestead premises, and in case the value thereof is more than fifteen hundred dollars, and the homestead premises cannot be divided, they must make and sign an appraisal of its value and deliver the same to the officer. The officer is required to deliver a copy of such appraisal to the debtor, or to some member of his family <>f suitable age to understand the nature of the same, with a notice attached that unless the debtor shall pay the officer the surplus over and above fifteen hundred dollars, or the amount due on the execution or decree, within sixty days thereafter, that such premises will be sold. 23 Such appraisal is not invalidated by reason of the fact that one of the appraisers is over sixty years of age, notwithstand- ing the statutory provisions requiring such appraisers to have the qualifications of jurors. 24 152. How Homestead Advertised and Sold for Surplus. If the debtor does not pay the surplus over and above the fifteen hundred dollars exemption, or the amount due on the execution or foreclosure decree, within sixty days from the time the copy of appraisal and notice was served on him by the officer, such officer may proceed to advertise and sell the premises, and out of the proceeds of the sale pay the debtor fifteen hundred dollars, which amount is exempt from execu- tion for one year thereafter. 23. C. L. '15, (12895); Cum- 27 N. W. 705; Krueger v. La mins & Beecher's Mich. Judica- Blanc, 75 Mich. 424, 42 N. W. 853; ture Act, 1018; Howell, 2nd. Ed., Vt. Sav. Bank v. Elliott, 53 Mich. 13079; First Nat. Bk. of Con- 256, 259, 18 N. W. 805. stantine v. Jacobs, 50 Mich. 341, 24. Flynn v. Kalamazoo Cir- 15 N. W. 500; Zoellner v. Zoell- cult Judge, 136 Mich. 23, 98 N. W. ner, 53 Mich. 626. 19 N. W. 556; 740; People v. Rawn, 90 Mich. Riggs v. Sterling, 60 Mich. 651, 377, 51 N. W. 522. 119 152 STATUTORY PROVISIONS The balance, if any, is to be applied by the officer on the execution or foreclosure decree. The sale must be at public vendue, and no sale can be made of the property unless more than fifteen hundred dollars is bid and received therefor. If no more than fifteen hundred dollars is bid, the officer may return the execution for want of property, or report the facts to the court in which the foreclosure decree was rendered, as the case may require. The provisions of this statute do not apply to any mortgage executed before the act took effect. 25 25. C. E. '15, (12896); Cum- Mich. 626, 19 N. W. 556; Krueger mins & Beecher's Mich. Judica- v. La Blanc, 75 Mich. 424, 42 N. ture Act, 1019; Howell, 2nd. Ed., W. 853. 13080; Zoellner v. Zoellner, 53 120 CHAPTKK XVI. SALE OF HOMESTEAD OF DECEASKh I'KRSONS. 153. By Probate Court to Pay Debts or Expenses. 154. Court to Fix Location and Description. 155. Appraisal and Report. 156. Confirmation of Report. New Appraisal. 157. Proceedings on Confirmation of Report. 153. By Probate Court to Pay Debts or Expenses. Under some circumstances the homestead of deceased persons iimy be sold 1y proceedings in the probate court during the administration of his estate, and the constitutional and statu- tory exemption preserved and protected for the benefit of the widow and children of the deceased. In such cases the proceedings as provided for by the statute >lnnld be substantially preserved. Whenever an application is made to a probate court for an order to sell the* real estate of a deceased person, for the pur- pose of paying his debts or the expenses of administration of his estate, it is the duty of the court to ascertain and 1 determine. ;ii the hearing of such application, what portion, if any, of such real estate in fact constituted the homestead i\;s o\ I-OM H:\IATION or KKI-OKT Tin- statute does mil fix ;i time \\itliin which the appra: must examine tin- premises and make their report, but does require that they shall proceed "with reasonable diligence." The order of t lie probate court appointing the appraisers should ti\ a reasonable time within which the examination of the homestead should be made and the determination and report .returned to the probate court. The determination and report should be F MAKKIKh WoMKN $ \ t\'.\ They reserve to a wife the same rights to her property after marriage which she had before marriage. 7 161. General Effect of the Statute. Tin- statute docs not ; i ll'ect the marital uuiiy of husband and wife in the marriage relationl It goes no farther than to in- sure to the wife the property which she had at the time of the marriage, and such as she may acquire afterward, and to give to her the power which she did not possess ai common law. to couirol. protect and dispose of it in her own name, by her own act, free from the interference or interposition of her husband. It does not affect the family relations, nor deprive the hus- band of any marital rights, except as they pertain to the wife's separate property. It relieves the husband of no responsi- bility which the common law imposed upon him, except as to the wife's contracts and debts. He is still under obligations to support her, and is entitled to her services except where such services arc given to her individual property or separate business. 8 162. Purpose of the Statute. This statute, and the constitutional provisions pursuant to which it was enacted, abrogate the common law rule by which the husband was liable for the debts of his wife contracted prior to their marriage, 9 and they abolish the common law rule respecting the husband's rights over his wife's property given to him by virtue of the marriage. 10 It was passed for the protection of married women, and to enlarge, not to con- tract, their rights, and was not intended to deprive them, whether acting alone or jointly with others, of the right to protect their property interests. 11 163. Executory Contracts of Married Women. It has been uniformly held in Michigan, since the passage of the married women's act in J.855, that a married woman - 7. Wales v. Newbould, 9 Mich. 34, 82 N. W. 662. 74, 75. 10. White v. Zane, 10 Mich. 8. Snyder v. People, 26 Mich. 333; Starkeweather v. Smith, 6 106; Glover v. Alcott, 11 Mich. Mich. 377; Gilespie v. Beecher, 482, 483; Howe v. North, 69 94 Mich. 374, 54 N. W. 167. Mich. 272, 37 N. W. 213. 11. Gilespie v. Beecher, 94 9. Smith v. Martin, 124 Mich. Mich. 374, 54 N. W. 167. 127 164 CONTRACTS OF MARRIED WOMEN cannot become personally liable upon her executory contract unless it relates to her sole property. And she cannot be held liable as surety for her husband or any other person, or by reason of being a partner of her husband. In all such cases the statute does hot remove the common law disability of mar- ried women. These rules are all intended for the benefit and protection of the wife, and are in direct antagonism with the doctrine that she cannot protect her title to, or possessions of, prop- erty when such title or possession, either as a sole or joint owner, is attacked. 12 Married women in this state have no general capacity to make an executory contract, and when such a contract is re- lied upon it is necessary to show the facts that it may be seen that the contract in some way relates to her separate prop- erty, and is of that character which would enable her to bind herself personally. 13 164. Same Subject Continued. A married woman cannot be held liable upon a contract made jointly with her husband for improvements on real es- tate held by them jointly, by entireties. Such estate is not such separate property of the wife as the statute gives her power to make contracts in relation to. She can neither sell, encumber, or control it while living, nor devise it at her death. The common law disabilities of married women are only partially removed by the statute, and one who relies upon a contract made by a wife must show that it relates to her sep- arate property. 14 A married woman cannot make herself personally liable as partner with her husband. 15 12. Gilespie v. Beecher, 94 387; Johnson v. Sutherland, 39 Mich. 367, 54 N. W. 167. Mich. 579; Russell v. Sav. Bank, 13. Tillman v. Shackelton, 15 39 Mich. 671; Gantz v. Toles, 40 Mich. 447; Campbell v. White, 22 Mich. 725; Insurance Co. v. Mc- Mich. 178; DeViries v. Conklin, Clellan, 43 Mich. 564, 6 N. W. 88; 22 Mich. 255; Powers v. Russell, Buhler v. Jennings," 49 Mich. 26 Mich. 179; Emory v. Lord, 26 ' 538, 14 N. W. 488; Edwards v. Mich. 431; West v. Larraway, 28 McEnhill, 51 Mich. 166, 16 N. W. Mich. 464; Ross v. Walker, 31 322. Mich. 120; Gillam v. Boynton, 36 14. Speier v. Opper, 73 Mich. Mich. 236; Jenne v. Marble, 37 39, 40 N. W. 909. Mich. 319; Kitchell v. Midgett, 37 15. Bassett v. Shepardson, 52 Mich. 81; Carley v. Fox, 38 Mich. Mich. 3, 17 N. W. 217; Artman 128 AUTHORITY or III Si'.AMi AS A<;i:.\T OK WIFi: 166 Endorsement by a married women of a note due to her, as security for the debt of a corporation in which she holds stock, will transfer the property in the note, 16 but does not make her personally liable as endorser of the note. 17 165. Same Subject Continued. The test of the competency of a married woman to make an executory contract which will make her personally liable, is whether or not it relates to and deals with her sole property. If it does, she is held liable ; if it does not, she is incapable of ]'indin<; herself -by it. 18 A married woman is not liable for the payment of a note executed by her and her husband for the purchase of land deeded to them jointly. In such a case the wife has no such separate interest in an estate by entirety as would afford a valid consideration for her note. Nor is her separate estate liable on such a note after her death. 19 A wife is not liable on a note given by her jointly with her husband for the price of a horse purchased by both. The horse being purchased and being owned jointly by the husband and wife, the effect of the undertaking of the wife in such a case would be to make her surety for her husband for at least one half of the note if her undertaking is binding. 20 It is not enough to charge a married woman upon her ex- ecutory contract that there is a consideration for it which would support a promise at the common law, or that the con- tract incidentally inures to her benefit. 21 166. Authority of Husband as Agent of Wife. When ;i husband goes on ;md makes valuable inproveinents on land purchased by his wjfe on a contract, relying on the wife's purchase, in a suit by her for specific performance of v. Ferguson 73 Mich. 146, 40 N. Mich. 691, 78 N. W. 884. W. 907. 20. Caldwell v. Jones, 116 16. Watson v. Thurberl 11 Mich. 129, 73 N. W. 129. Mich. 457. 21. Russell v. Sav. Bank, 39 17. Russell v. Peoples' Sav. Mich. 679, 33 Am. R. 444; Speier Bk., 39 Mich. 671; Hepburn v. v. Opper 73 Mich. 35, 40 N. W. Warner, 112 Mass. 267. 909, 16 Am. St. R. 556; Artmand 18. Russell v. Peoples' Sav. v. Ferguson, 73 Mich. 146, 40 N. Bk., 39 Mich. 674; Doan v. Feath- W. 907, 16 Am. St. R. 572; Bas- er's Estate, 119 Mich. 691, 78 N. teit v. Shepardson, 52 Mich. 3, W. 884. 17 N. W. 217; Curtis v. Trowe, 19. Doan v. Feather's Est, 119 74 Mich. 99, 41 N. W. 876. 129 107 CONTRACTS OP MARRIED WOMEN the land contract, she should have the benefit of such improve- ment the same as though they had been paid for in whole or in part by herself. 22 Where a husband authorized to sell his wife's goods for cash, sells them for a cash payment in part and the balance on time, no title passes to the purchaser as against an attach- ment subsequently levied by creditors of the wife, and her sub- sequent ratification is ineffectual to convey title to such pur- chaser. 23 A husband acting as his wife's agent in purchasing a mort- gage and collecting the amount due thereon has no implied authority to compromise a claim against the assignor on the covenant of indebtedness contained in the assignment. 24 A mere~statement of a husband that he is authorized to act as agent for his wife is insufficient to prove his authority. 25 167. Rights of Husband's Creditors as against the Wife. Where one who has refused to sell to a husband because he did not think it safe to trust him is willing to sell to the wife on credit, trusting to the property in her hands and to her hon- esty in making it available for his protection, and makes the sale to her in good faith, the title to the property will not pass, contrary to the intent of both parties, to the husband for the benefit of his creditors who could neither be wronged by any sale to her nor have any right to insist on a sale to the husband. 28 A wife, by allowing her husband to pay a portion of his debt with her money, does not thereby make herself liable tb pay the remainder of the debt. 27 Where there is evidence justifying the inference that the hus- band has mingled his own money with that of his wife, with her knowledge and consent, with the understanding that the entire fund should be treated as his own, such fund is subject to garnishment for his debt. 26 22. Murphy v. Stover, 47 26. Rankin v. West, 25 Mich. Mich. 522, 11 N. W. 358. 195. 23. Newbern v. Wood, 52 Mich. 27. O'Donnell v. Grey, 99 Mich. CIO, 18 N. W. 382. 534, 58 N. W. 475. 24. Eaton v. Knowles, 61 Mich. 28. Mclntyre v. Farmer's and 625, 28 N. W. 740. Merchant's Bk., 115 Mich. 255, 73 25. Just v. State Sav. Bk., 132 N. W. 233. Mich. 600, 94 N. W. 200. 130 NECESSARIES AND FAMILY EXPENSES 169 168. Improvements and Materials Furnished to Husband to be Used on Land of Wife. When improvements are made and materials furnished therefor, to be used on land owned by the wife, and all bills are made out to the husband and payments made by him, and no particular direction or oversight is made by the wife, other than that natural for a wife as to the house of her husband, she cannot be held liable for any portion of such improve- ments and material. 29 A married woman is not personally responsible, and her land is not bound, for improvements and expenditures made on it by her husband, where no credit has been given to her, and where he has not contracted on her behalf. 80 In an action against a married woman for repairs on her house, proof that plaintiff obtained judgment against her hus- band is conclusive evidence that plaintiff looked to him as the debtor. 81 But there are cases where a married woman may be held lia- ble for improvements made on her land by her husband where she lias made no express rontract. Her husband may act as her agent, and bind her so far as he acts within the scope of his authority as such agent. . Where buildings are erected on the land of a married woman with her knowledge and consent, from material lected by her, she is liable for the value of the materials fur- nished, though the business was conducted mainly by her hus- band, and the person furnishing the materials supposed they \vere heinI:KTS IN IIKK SKI-AKATK r.rsiNKss ?;17.'! contract conferred by the married women's act of 1855, al- though her property is incidentally benefited by the improve- ment. An incitlcnial benefit to her property is not sufficient. The test of competency is whether or not the contract deals with the married woman's separate estate. 88 172. Contract of Married Women Jointly with Husband. A married woman is not liable on a contract signed by her with her husband for property purchased and owned by them jointly. Such contract is not in relation to her separate estate, nor can she be made liable for the purchase of property to be owned by herself and another jointly. 37 For her sole benefit, or that of her separate estate ; a married * woman may .n tract jointly with her husband and become personally liable under the statute; but if the contract is for the benefit of the husband, or for the benefit of the husband and wife jointly, she is not liable. 88 A joint contract by husband and wife for family necessaries will be regarded'as a contract of the husband only. 39 A married woman is liable on a bond executed by herself and husband jointly for money borrowed by her and used by her to build on her own land. 40 A note given by ft married woman to prevent an attempt to collect a note of her husband of the same amount, by attacking the transfer by him to her of all his property under the claim that snch transfer is fraudulent as to creditors, is valid against the wife. 41 173. Debts Incurred by Married Woman in her Separate Business. A married woman who takes from her husband a deed of 36. Russell v. Bank, 39 Mich. 39. 21 Cyc., 14-56; Berger v. 671, 33 Am. R. 444; Chamber of Clark, 79 Pa. St. 340; Park v. Commerce v. Goodman, 110 Mich. Cleaver, 37 Pa. St. 251; Moore v. 498, 68 X. W. 295, Moore & Joyce, 161 Pa. St. 138, 28 All. Grant JJ., dissenting. 1080; Collins v. Hall, 55 S. C. 37. Doane v. Feather's Est., 336, 33 S. E. 466. 119 Mich. 691, 78 N. W. 884. 40. Wilson v. Wilson Est., 80 38. 21 Cyc., 14-56; Barber v. Mich. 472, 45 N. W. 184. Hoover, 120 Ind. 193, 28 N. E. 41. Harris v. Gates, 121 Mich, 888; Verill v Parker. 65 Me. 578; 163, 79 N. W. 1098; Whelply r. King v. Page, 119 Wis. 105, 95 N. Stoughton, 112 Mich. 594, 70 N. W. 108. W. 1098. 133 174 CONTRACTS OP MARRIED WOMEN land previously leased by him, and so succeeds him as lessor, is liable for work and materials furnished by the lessee at the request of her husband, acting as her agent, after she acquires the property, less any sum paid by the husband ; but not, how- ever, if the work and material was furnished the husband on his own account, or under, his express promise as principal. 42 A married woman may constitute her husband her agent to carry on business for her in her name. Evidence that a hus- band deeded his farm to his wife, and from that time the busi- ness was carried on by the wife, and the bank account. growing out of the business was kept in her name, tends to show that a note, given by her for over -draft of her bank account relates to her separate estate. 48 174. Debts Contracted on Credit of Wife's Separate Estate. A married woman to whom a loan is made on her husband's representation, in her presence, that it is for the benefit of her separate property, and' is so understood by her and believed and relied on by the lender in good faith, is liable, though no part of the money was in fact so used. 4 * It being conceded that a married woman is liable for debts contracted by her for the benefit of her separate estate, the question often arises as to what contracts are for its benefit. Among the contracts generally held to be for the benefit of wife's separate estate may be enumerated the following : reason- able hire of servants for the care of her property," 43 labor em- ployed in the cultivation of her land; 40 purchase of animals, material, tools, or machinery furnished for use on her farm; 47 labor and materials furnished for the improvement and repair of her separate property ; 48 money borrowed to pay off a mort- gage or other incumbrance upon her separate property. 49 So 42. Lubebe v. Thorp, 94 Mich. Knabb, 116 Pa. St. 28, 9 Atl. 33. 268, 54 N. W. 41. 47. Mitchell v. Smith, 32 la. 43. Bank v. Newton, 117 Mich. 484; Batchelder v. Sargent, 47 N. 433, 75 N. W. 934. H. 262; Arrington v. Bell, 94 N. 44. Vosburgh v. Brown, 119 C. 247; McCormick v. Holbrook, Mich. 697, 78 N. W v 886; McVey 2 la. 487. v. Cantrell, 70 N. Y. 295, 26 Am. 48. Henry v. Blackburn, 32 R. 605. Ark. 445; Schnabel v. Betts, 23 45. Walker v. "Smith, 28 Ala. Fla. 178, 1 So. 692; Colvin v. Cur- 569; Sanderlin v. Sanderlin, 122 rier, 22 Barb. (N. Y.) 371. N. C. 1, 29 S. E. 55. 49. Daniels v. Royce, 96 Ga. 46. Moshier v. Kittle, 101 566, 23 So. 493. Mich. 345, 59 N. W. 497; Botts v. 134 WIFK'S SKI'AKATK KSTATE 175 :i covenant to support a person who conveys property to a married woman is for the benefit of her separate estate. 80 175. Contracts for Benefit of Wife's Separate Estate. Tmlcr our present system, whatever contract a married woman is legally competent to make may be made "with the like etVect as if she was unmarried." 51 I5ut the statute does not confer upon her a general capacity to make contracts. She can make only such contracts as relate to her own property, and in that respect she has the same legal rapacity as a man. The contract of a married woman may relate to her separate property, although such property is not in any way benefited by it. If she mortgages her separate property to secure the debt or obligation of her husband, or of any other person, the property mortgaged is bound by the contract, but she cannot be held personally liable for th deficiency if the property mort- gaged is not sufficient to pay the debt. 52 A conveyance by mortgage of her separate property comes clearly within the power given a married woman by the statute, and she must judge for herself whether or not it is for her interest to give it. 53 Where a married woman gives her promissory note for the debt of another person, and secures the payment of the note by a mortgage on her separate property, the note is void, but the mortgage is valid to the extent of the property covered by it. 54 There is no restriction under the constitution and statutes of this state which will prevent a married woman from creating an express lien on her property for any lawful purpose that could be the foundation for such action by an unmarried woman or a man. In such a case, while the contracting of an express lien against her individual property may not be for her benefit or the benefit of her separate property, it is such a 50. Hough ton v. Melburn, 54 Bank, 39 Mich. 671; Tillman v. Wis. 554, 11 N. W. 517, 12 N. W. Shackelton, 15 Mich. 447; Watson 23. v. Thurber, 11 Mich. 457; Frakee 51. C. L. '15. (11485); Howell, v. Downer, 35 Mich. 151; Wine- L'ncl. Ed., 11545. man v. Phillips, 93 Mich. 223, 53 r.i'. Damon v. Deeves, 57 Mich. N. W. 168. 247, 23 N. W. 798. 54. Damon v. Deeves, 67 Mich. 53. West v. Laraway, 28 Mich. 247, 23 N. W. 798. 464; Russell v. Peoples' Sav. 135 175 CONTRACTS OF MARRIED WOMEN contract as the statute expressly empowers her to make "with the like effect as if she was unmarried." Where the contract of a married woman is directly for the benefit of her separate property, she may not only create a lien on such property, but may make herself personally liable the same as an unmarried woman or man. Where a debtor voluntarily conveys all of his property to his wife, and the wife, to relieve herself from the attack of creditors on property so conveyed, gives her individual note for her husband's debt, it is for the benefit of her separate property and she is personally liable on the note. 55 When the note was given the property conveyed was the separate property of the wife under a deed, valid as against the husband, and hence the giving of the note by the wife to relieve the property from the attack of creditors was directly for the benefit of her separate property. 55. Whelpley v. Stoughton, 112 Mich. 594, 70 N. W. 1098. 136 CHAITKK XVIII. CONVKYAXVKS AM) CONTRACTS TO rnXVKY KKAL OR PERSONAL 1MJ< U'KKTY. 176. Statutory Provisions. 8177. Consideration. 178. Joinder of Husband. 179. What Law Governs. 180. Gift by Wife to Husband. 181. Covenants on the Part of a Married Woman. 182. Consent of Husband to Sale of Wife's Property. 183. Same Subject Continued. 184. Conveyance of Husband or Wife to or for Each Other. 185. Conveyance of Undivided One-Half Interest by Husband to Wife. 186. Conveyance of Land Held by Husband and Wife by Entirety. 176. Statutory Provisions. The married women's act of 1855 belongs to a class of remedial statutes, ;iml as such has always been liberally con- strued. Contracts made by married women for the purchase of property on credit have been sustained, where the credit was given to the wife alone, although, perhaps, they mi til it not t come strictly within the terms of the statute. The statute expressly provides that all real and personal property of a married woman "may be contracted, sold, transferred, mort- gaged, conveyed, devised or bequeathed by her. in the same manner and with the like effect as if she were nnmarrie.i While the statute does not expressly state that such prop- erty may lie "bought by hei" in the same manner ami with tin- like effect as if she were unmarried, a construction which, would exclude her from such privilege would violate the time- honored rule that remedial statutes must be liberally con- strued. 2 177. Consideration. The payment of a husband's debt is a sufficient consideration 1. C. L. '15, (11485); Howell, Mich. 259; Tillman v. Shackelton, 2nd. Ed., 11545. 15 Mich. 447; Burdeno v. Am- 2. DeVires v. Conklin, 22 perse, 14 Mich. 97. 137 178 CONVEYANCES for a deed by his wife. It is competent for a married woman to deed her property to whom she chooses, and, though it is security for or in payment of her husband's debt, the deed is valid. 3 178. Joinder of Husband. A married woman who is a guardian can convey the real estate of her ward without her husband joining in the deed.* A married woman may convey land owned by her in fee, but occupied by herself and husband as a homestead, without the husband joining the deed of conveyance. The constitution and the married women's act of 1855 confer upon married women such absolute right to the disposition of their own separate property that she may convey such homestead by deed, without the husband joining in the instrument. 5 179. What Law Governs. The disposal of the separate real estate of a married woman may be valid under the law of the state where the property is situated, although she may be incapacitated to make such con- veyance by the laws of her domicile. 6 With reference to the transfer of the personal property of a married woman, the law of the state where the contract is made applies. 7 180. Gift by Wife to Husband. A wife may make a gift of her property to her husband; but when he claims that a gift has been made, the burden of proof is upon him to establish it. 8 But a gift or a purchase from a wife to her husband or from 3. Le May v. Wickert, 98 Mich. (Mich.) 433, 47 Am. Dec. 41. 628, 57 N. W. 827; Keildsen v. 5. Buckingham v. Bucking- Blodgett, 113 Mich. 655, 72 N. W. ham, 81 Mich. 89, 45 N. W. 504. 9; Pratt Land Co. v. McClain, 135 6. 21 Cyc. 1499; Thompson v. Ala. 452, 33 So. 185, 93 Am. St. Kyle, 39 Fla.- 882, 23 So. 12, 63 35; Collins v. Wassell, 34 Ark. 17; Am. St. R. 193. Nichols v. Hayes, 20 Ind. App. 7. 21 Cyc. 1499; Clanton v. 369, 50 N. E. 768; Stone v. Mont- Barnes, 50 Ala. 260; Drake v. gomery, 35 Miss. 83; Sapiro's Ap- Clover, 30 Ala. 382. peal, 108 Pa. St. 377; Steinnegar 8. Derfy v. McClurg, 6 Mich, v. Steinnegar, 55 S. C. 9, 33 S. E. 223; Plumman v. Perce, 9 Mich. 15; Booker v. Wingo, 29 S. C. 116, 509; Wales v. Newbold, 9 Mich. 7 S. E. 49. 45; Jenne v. Marble, 37 Mich. 4. Palmer v. Oakley, 2 Doug. 319. CONSENT OF HUSBAND 18- \ a husband to his wife, must be established by evidence other thair that of use ;in - " * WMWMWi -0 10 91 Pvr> 1^9ft- "Pptprq v v ' Barb. (N. Y.) 319; Ryerson v. ' . . . Peters, 42 la. 182; Libby v. Berry, o--.!^ o M Y o' 700 74 Me. 286, 43 Am. R. 589; Ab- R * e B rBO ": 8 bott v. Abbott, 67 Me. 304, 24 Am. 18- Kujeck v. Goldman, 150 N. R. 27; Lougardyke v. Lougardyke, Y. 179, 44 N. E. 733 55 Am. St. 44 Barb. (N. Y.) 366; Nickerson R - 670 > * L - R - A - 156 - v. Nickerson, 65 Tex. 281. 19. Kujeck v. Goldman, 150 N. 14. Chestnut v. Chestnut, 77 Y. 176, 34 L. R. A. 156. 144 M im K;AN STATUTES ox ALIENATION jil'.M 192. Action by Wife for Services. The legal presumption is that the services of a wife are giveii for the benefit of her husband and in his interest; and where she is working with her husband, if sin- makes a separate claim for her individual services, she must not only show that her services were given with the consent of her husband, but that the party for whom her services were rendered so under- stood it. 20 When the husband supports the family, his wife rannot maintain an action for her services without proof of the hus- band's eonsiMit and of his relinquishment to her of his rights to her services. 21 193. Action by Wife for Alienation of Husband's Affections. The right of a married woman to maintain an action for alienation of her husband's affections has been seriously ques- tioned in the past. In the adjudicated cases there seems to be a difference of opinion as to her common law rights ro maintain such action. It has been contended, and some courts have held, that as the wife had no right of property at common law in any damages recovered on her account, for any cause, she could have no right of action to recover such damap-. In Kew York it is held that it was considered at common law that damages for personal injuries belong to the wile, because the husband could not sue without joining her. If the damages were recovered before the death of the husband, the money collected became his property; but if he died bH'nre the action was determined, the right of action survived to the wife. From this it was deduced that the right of action be- longed to the wife. 23 This would seem to be a cnrrtvi position. because it could hardly be contended that the husband nniM maintain an action for his own wrongful act. 194. Same Subject: Michigan Statute. The question of a right of a married woman to maintain an 20. Mason v. Dunbar, 43 Mich. 374, 45 N. W. 523; Westlake v. 407, 5 N. W. 432; Herall v. Me- Westlake, 34 Ohio St. 621; Doe v. Cabe, 171 Mich. 530, 137 N. W. Roe, 82 Me. 503, 20 Atl. 83; Logan 237. v. Logan, 77 Ind. 558; Mehroff v. 21. Barnes v. Moore, Estate, Mehroff, 26 Fed. 13. 86 Mich. 585, 49 N. W. 585. 23. B.ennett v. Bennett, 116 N. 22. Duffles v. Duffles, 76 Wis. Y. 584, 23 N. E. 171. 145 195 ACTIONS action for damages for the alienation of her husband's affec- tions was first raised in Michigan in the case of Mitchell v. Mitchell, 49 Mich. 68, 12 N. W. 914. In that case the plaintiff charged the defendant, who was the father of her husband, with persuading the latter to desert her, and with contriving to alienate and destroy his affection for her. On the trial the circuit judge directed a verdict for the defendant. The case, was appealed to the supreme court and the judgment of the lower court affirmed by equal division. No opinion was filed and the case does' not seem to have been considered as an ad- judication of the question. It lias been held, however, that a married woman may main- tain an action in her individual name, without joining her husband, where an assault and battery is committed on her,- 4 and for slander, 25 and in such cases the damages recovered become her individual property; and there would seeni to be no good reason for denying her the same rights where by the wrongful act of another she is deprived of the affection, society and support of her husband. Among the reasons given in those cases which hold that at common law a wife cannot maintain an action for alienation of her husband's affections, or for the consequent loss of his society, is the wife's lack of any property right in the affection and companionship of her husband, and her incapacity to sue alone, and because the husband should not be permitted to join with her to redress a wrong in which he participated. It has been contended, however, and it would seem with good reason, that in respect of conjugal society and affection, the husband owes to the wife all that she owes to him, and that upon principle the wife's right to the companionship and affection of her husband is a property right, and as valuable to her as is the husband's right to him. 26 195. Same Subject Continued. Whatever may have been the common law rule, however, under the authority of the Michigan statute and modern legis- lation generally, enabling married women to sue generally and securing to them their separate property rights, the wife may sue for the alienation of the husband's affection and the loss of his society. 27 In Michigan the right of a married woman to 24. Berger v. Jacobs, 21 Mich. 26. 21 Cyc. 1617 and cases 215. cited. 25. Leonard v. Pope, 27 Mich. 27. Humphrey v. Pope, 122 145. Cal. 253, 54 Pac. 847; Williams 146 EVIDENCE IN ACTION FOR ALIENATION 197 maintain an action for damages for the alienation of her hus- band's affection, and for consequent loss of support and main tenance, is no longer open to question. 28 $196. Action by Husband for Alienation of Wife's Affection. The right of a husband to maintain an action for alienation of his wife's affection and for damages for the loss of her society and services is recognized both at common law and under the statute of several states relating to the rights of husband and wife. All of the cases which deny this right to the wife, as well as most of those whicli recogni/e and enforce sndi right, maintain a right of action in the husband. 197. Evidence in Action for Alienation of Affections. By the common law a wife is absolutely incompetent as a witness for or against her husband, but the rule has been modified by statute so far as to make her competent in rase ot his consent, and leaving him perfectly free to give or with hold such consent. But in an action by a husband for alienation of his wife's affection, letters written by the wife, tending to show her affection for her husband, are admissible for the purpose of v. Williams, 20 Colo. 51, 37 Pac. kinson v. Hodgkinson, 43 Neb. 614; Betset v. Betser, 186 111. 268, 61 N. W. 577, 27 L. R. A, 537, 58 N. E. 249, 78 Am. St. R. 120; Bennett v. Bennett, 116 N. 303, 52 L. R. A. 630; Holmes v. Y. 584, 23 N. E. 17, 6 L. R. A. Holmes, 133 Ind. 386, 32 N. E. 553; King v. Hanson, , N. 932; Wolfe v. Wolfe, 1.30 Ind. Dak. , 99 N. W. 1085; West- 599, 30 N. E. 308 ; Haynes v. Now- lake v. Westlake, 34 O. S. 621, lin, 129 Ind. 581, 29 N. E. 389, 32 Am. R. 397; Gernard v. Ger- 49 L. R. A. 787; Price v. Price, nard, 185 Pa. St. 333, 39 Atl. 884, 91 la. 693, 60 N. W. 202, 29 L. 40 L. R. A. 549; Hestler v. Hest- R. A. 150; Nevins v. Nevins, 68 ler. 80 Tenn. 270, 12 S. W. 446; Kan. 416, 75 Pac. 492; Deitzman Knapp v. Wing, 72 Vt. 334, 47 Atl. v. Mullin, 108 Ky. 610, 57 S. W. 1075; Beach v. Brown, 20 Wash. 247, 50 L. R. A. 808; Rice v. Rice, 266, 55 Pac. 46, 43 L. R. A. 114; 104 Mich. 371, 62 N. W. 883; Ashe v. Pennier, 105 Fed. 722, Warren v. Warren, 89 Mich. 123, 44 C. C. A. 675; Waldron v. Wald- 50 N. W. 842, 14 L. R. A. 545; ron, 45 Fed. 315; Merhoff v. Mer- Lockwood v. Lockwood, 74 Miss. lioff, 26 Fed. 13. 93, 19 So. 955, 32 L. R. A. 623; 28. Warren v. Warren, 89 Nichols v. Nichols, 147 Mo. 387, Mich. 123, 50 N. W. 842, 14 L. R. 48 S. W. 947; Nichols v. Nichols, A. 545; Rice v. Rice 104 Mich. 134 Mo. 187, 35 S. W. 577; Clow 371. 62 N. W. 883; Metcalf v. v. Chapman, 125 Mo. 101, 28 S. Tiffny, 106 Mich. 504, 64 N. W. W. 328, 26 L. R. A. 412; Hodg- 479. ^ 147 197 ' ACTIONS \ * showing the state of the wife's mind and affection toward her husband. 29 But where there is no evidence of misconduct on the part of the defendant, the state of the wife's mind and affection to- wards her husband is immaterial and her letters ought not to be admitted until such misconduct is shown. 30 In an action by* a husband for simply enticing away his wife, it is not competent for the plaintiff to shoAV that the defendant has had illicit intercourse with her. 31 29. Perry v. Lovejoy, 49 Mich. 172, 10 N. W, 188. 529, 14 N. W. 485. 31. Perry v. Lovejoy, 49 Mich. 30. White v. Ross, 47 Mich. 529, 14 N. W. 485. 148 PART THREE DIVORCE PAKT THREE DIVORCE. Chapter XX. Chapter XXI. Chapter XXII. Chapter XXIII. Chapter XXIV. Chapter Chapter Chapter Chapter Chapter Chapter Chapter XXV. XXVI. XXVII. XXVIII. XXIX. XXX. XXXI. Chapter XXXII. Introduction to Divorce. Divorce Laws of Different Countries. Causes Authorizing Divorce and the Pro- cedure in the Different States. Divorce and Annulment of Marriage in Michigan. Causes for Divorce from Bonds of Matri- mony. Causes for Absolute Divorce : Continued. Causes for Absolute Divorce: Continued. Causes for Absolute Divorce: Continued. Causes for Absolute Divorce: Continued. Causes for Absolute Divorce: Continued. Divorce from Bed and Board. General Provisions in Actions for Divorce and Annulment of Marriage. General Statutory Provisions Concerning Husband and Wife. CHAPTER XX. INTRODUCTION TO DIVORCE. 198. General Views. 199. Local. Legislation. 200. Divorce Tribunals. 201. Legislation on the Subjects of Marriage and Divorce. 202. Legislative Divorces. 203. Same Subject Continued. 204. Judicial Divorce. 205. Limited Divorce. 206. Moral Effects of Limited Divorce. 207. Marriages Void without Divorce. 208. Consent Obtained by Force or Fraud. 209. Decrees Annulling or Afflr.ming Marriages. 198. General Views. All ci\ ili/.cil nations have provided by law certain formal proceedings for the dissolution of the marriage relation. The necessity for this seems to be recognized everywhere. Laws on this subject constantly ^ivc rise to interesting and earnest discussion, and frequently to difficult and perplexing qi na- tions. In the United States there is a growing and dangerous laxity in legislation as to the permanency ofx the marriage relation, and one does not have to seek far to find the cause. One reason for this condition appears to be our universal tendency to greater social freedom between the sexes; and another the existence of nearly fifty independent jurisdictions, which enables people to travel from one state to another to find facilities for divorce and remarriage which tin- law of their own state does not afford. Such a state of things cannot safely be favored by any public policy; but the law sometimes permits ir, if for no other reason than that an adequate remedy i-. wanting to check or prevent the evil. 199. Local Legislation. Again, there is a strong rurrent of local legislation in this country tending to a multiplicity of causes for divorce, even 151 200 INTRODUCTION TO DIVORCE down to such pretexts as incompatibility of temper. , So loose aiid confusing are our state laws, and so different as to causes for divorce, on the subjects of both marriage and divorce, that there has grown up in all parts of the country a considerable degree of public opinion that the cause of morality would be promoted by an amendment to the federal constitution, plac- ing the whole subject in the control of Congress, thus insuring uniform laws throughout the country. 200. Divorce Tribunals. Divorce tribunals should be, and generally are, a shield to the public conscience, at least to the extent that a decree of divorce should be denied whenever there is reason to believe that there is collusion between the parties, and unless the complaining party makes out a clear case, whether the appli- cation is opposed or not. 201. Legislation on the Subjects of Marriage and Divorce, Marriage, as creating the most important relation in life, and having more to do with the morals and civilization of a people than any other institution, has always been more or less subject to the control of legislative bodies. The legislature prescribes the age at which marriage may be contracted and consummated, the procedure or form essential to constitute marriage, the duties and obligations the marriage relation creates, its effects upon the property rights of the parties, present and prospective, and the acts which may constitute grounds for its dissolution. 1 202. Legislative Divorces. Unless prohibited by constitutional provisions, the legisla- tures of the several states may grant divorces. In Michigan, however, this power is denied to the legislature by the con- stitution. 2 Tn 1849, the legislature of Michigan passed an act which specially authorized the Circuit Court of St. Joseph County to grant a decree of divorce to James M. Teft from his wife. Sally Teft, provided it. should be made to appear satisfactorily that the said Sally Teft had been, for the term of five years preceding the time of filing the petition or bill, and still con- tinued to be, hopelessly and incurably insane. 3 There was no 1. Maynard v. Hill, 125 U. S. 2. Const*., Art. IV, Sec. 32. 205, L. Ed. 657, Book 35. 3. Laws of 1849, P. 243. 152 LEGISLATIVE DIVOI 203 general I;i\v of (lie state authorizing divon-- on the ground of insanity. and both the const it nt ion of iSi'.C. which was in force when tin- law was enacted, and that of 1S."1. in force when the decree was granted, prohibited divorces by the legislature. The provision in the constitution of is:;r, was: "iMvon-e shall not be* granted by the legislature, lint the legislature may by law authorize the higher courts to grant them under such restric- tions as they may deem expedient." 4 On appeal to the Supreme Court from the derive of the Circuit Court of St. Joseph County granting a decree' of divorce, it was held that the statute in question was in efl'ect the granting of a divorce by the legislature, in a particular case and for a particular cause for which no general law of 1he slate authorized a divorce to be granted, and was there- fore unconstitutional, and the decree of the lower court was reversed. 5 The case of Teft vs. Teft, which does not appear ever to have been questioned, seems to establish the law of Michigan, ever since the formation of the state government, to be that the legislature may authorize certain courts to grant divorces generally, designate the courts to which such authority is given, and declare by general law the causes for which such courts may grant decrees of divorce. 203. Same Subject Continued. fiut the legislature can neither grant divorces by legislative enactment, in particular cases, nor authorize the courts to do so for a particular cause, for which no general law of the state authorizes a divorce to be granted. Many of the other states have constitutional provision more or less similar to that of Michigan. In New Hampshire it is held that a statute which attempts to confer authority upon the court to grant a divorce for matters already past, and which at the time they occurred furnished no ground for a dissolution of the marriage, or for other legal proceedings, is a retrospective law for the decision of a civil cause and therefore unconstitutional. 6 In Illinois hereditary insanity evinced before marriage and iMiknown to. the husband, affords no ground for divorce. 7 In Kentucky it has been held that an act of the legislature divorcing husband and wife, acquiesced in by both partie-. i- 4. Const 1836, Art. XII, Sec. 5. 1. Birkby v. Birkby, 15 111. 5. Teft v. Teft, 3 Mich. 67. 120. 6. Clark v. Clark. 10 N. H. 380. 153 204 INTRODUCTION TO DIVORCE not an exercise of judicial authority. 8 In Maine it is held that a divorce by act of the legislature is valid, in a case of which the courts under existing laws have no jurisdiction.' 1 The same rule prevails in Maryland. 10 In Missouri a divorce by the legislature is unconstitutional. 11 In Ohio the legis- lature has no power to grant divorces, but to avoid rendering- children of second marriages illegitimate, the courts have held legislative divorces valid. 12 In Illinois and Wisconsin the legislature is prohibited by constitutional provisions from special legislation for the granting of divorces. 13 In Michigan legislative divorces have been prohibited in every constitution since the organization of the state govern ment. The whole authority to grant divorces is vested in the circuit and supreme courts. Original jurisdiction is vested exclusively in the several circuit courts in chancery, with appellate jurisdiction in the supreme court. 204. Judicial Divorce. A judicial divorce is the judgment or decree of a court of competent jurisdiction, wholly or partially dissolving a mar- riage. A divorce may be either absolute or limited. An absolute divorce is the decree of a court of competent jurisdiction, terminating an existing marriage relation of husband and wife, freeing the parties from the marriage bond and restor- ing both to the status of a single person. A partial or limited divorce does not dissolve the marriage tie. It is a mere legal separation, a divorce from bed and board only, simply free- ing the innocent party from the presence and control of the guilty one. 205. Limited Divorce. A limited divorce neither dissolves the marriage nor gives either party the right to marry again. It does not even divest the guilty party of his or her interest as husband or wife in the estate of the other. 14 It is no defense to a civil or criminal charge of adultery, nor to an indictment for bigamy. 8. Cabell v. Cabell, 1 Mete. Mo. 187. (Ky.) 319. 12. Bingham v. Miller, 17 Ohio 9. Adams v. Palmer, 51 Maine, 445. 480. 13. 111. Const., Art. IV, Sec. 22; 10. Wright v. -Wright, 2 Md. Wise. Const., Art. IV, Sec. 24. 429. 14. Keezer on Marriage and 11. Brayson v. Brayson, 17 Mo. Divorce, Sec. 63, P. 38; Clark v. 590; State v. Fry, 4 Mo. 120, 28 Clark, 6 Watts & S. (Pa.) 85. 154 MARRIAGES VOID WITHOUT DIVORCE 207 , After ;t limited divorce has IKHMI granted it is presumed that relations between the parties have ceased, and children born thereafter are presumed to be illegitimate until the contrary is shown. But, upon satisfactory proof of cohabitation after the decree is granted, they will be held legitimate." 206. Moral Effects of Limited Divorce. Limited or qualified divorces would seem to be somewhat In xaidous to the morals of the parties. They are thrown back uj jon society in the undefined and dangerous characters of a husband without a wife and a wife without a husband. They ii;ay possibly secure a judicial settlement of matrimonial troubles and thus -jive an innocent wife protection from a cruel or drunken husband, but the same result could be ob- i aiued by absolute 1 divorce, alimony, and a restraining order or injunction, and leave the parties in a much better position for themselves and the community. A limited divorce or legal separation deprives the parties to the marriage of the rights of cohabitation and the pre- n-eation of legitimate children. In speaking of divorce from bed and board Mr. Bishop says: "This proceeding, neither dissolving the marriage nor recon- ciling the parties, nor yet changing their natures: having at least no direct sanction from scripture: characterized by L7 established a court for divorce and matrimonial causes, which had exclusive jurisdiction to grant divorces in England and Wales up to 1873. In 1873, a new tribunal having jurisdiction over all divorce causes was established in England, known as the "I'robate. Divorce and Admiralty Division." which now has exclusive jurisdiction to grant divorces in England. . By the Act of January 1, 1871 a "Court for Divorce and Matrimonial Causes" was established for Ireland, with Catholics baric 1 from its benefits. This statute has since been declared unconstitutional, and 157 212 DIVORCE LAWS OF DIFFERENT COUNTRIES an Irish marriage can be dissolved only by act of the British Parliament. In Scotland, adultery has been a ground for divorce since 1560, and desertion since 1573. 212. Divorce Laws of Canada. At the time of the Confederation of the Provinces of Cana- da, by the law known as the "British North America Act," passed by the British Parliament in 1867, divorce courts were in existence in the Provinces of British Columbia, New Bruns- wick, Nova Scotia and Prince Edward Island. Under the Confederation Act the power over divorce was vested in the Dominion Parliament, which never has passed any legisla- tion on the subject unless it has been done recently. Grave doubts have been expressed asi to the power of the courts of British Columbia to hear divorce causes, and it is said that some of the judges decline to do so. In Prince Edward Island the Lieutenant Governor and Council constitute the divorce court, and but few divorces have ever been granted in the colony. In New Brunswick and Nova Scotia the divorce courts that existed prior to the con- federation are still in existence, but seldom appealed to. In the balance of the Dominion of Canada an absolute divorce can be obtained only from the Dominion Senate on the ground of adultery of either spolise, or the impotency of the husband, or where the marriage is voidable for non-consummation. The courts of the Dominion have the power to grant alimony or support to the wife on proper application. 213. Divorce Laws of the United States. Under the Federal constitution the establishment of divorce laws and courts was left under the absolute control of each state, and every state in the union, except South Carolina, has established courts, procedure and grounds for divorce, which are different in each state. South Carolina has a con- stitutional provision prohibiting the legislature from passing divorce laws. The Congress 'of the United States has abso- lute power over divorce laws in the District of Columbia, the Phillipines, Guam, Alaska and the Canal Zone, which have no legislative bodies, and has enacted divorce laws for Alaska and the District of Columbia. The Congress lias also super- visory power to say what divorce laws the territorial legis- latures of Porto Rico and Hawaii shall enact. 158 1'LACK OF MARRIAGE NOT CONTROLLING 215 214. Jurisdiction Governed by Domicile. It is well established law that the courts of any state, na- tion or division thereof, however great or small, cannot di- vorce parties unless one of the parties to the marriage is domiciled therein. This is the reason why the divorce judg- ment of any slate or nation, to one temporarily within its borders is worthless if granted. This would be attempting to dissolve the stains of parties, neither of whom are citizens. and usurping a right which, by all statutory law and inter- national rules and comity, belongs to the place of domicile. 215. Place of Marriage not Controlling. The fact of marriage within a certain state would not. therefore, confer jurisdiction to divorce, for a lawful mar- riage may be solemnized in a state or nation where neither of the parties has a domicile. The commission of the act constituting ground for divorce would not confer jurisdiction, for the act might be committed by a temporary sojourner. Domicile, therefore, is the only test of jurisdiction to di- vorce. It is the only jurisdiction which will be recognized internationally throughout the civilized world. Attempts to assume jurisdiction through any other medium than that of the domicile of one of the parties, has always resulted in a worthless divorce, void in the jurisdiction where it is granted, and void extra-territorially. Statutory attempts to confer jurisdiction by reason of "residence," marriage within the jurisdiction where the snii is instituted, or the commission of the offense within the place of suit, have always resulted disastrously; and the courts of every state and nation, universally, absolutely refuse to recog- nize the right of any court to divorce parties, unless at least one of them was. in good faith, domiciled within the terri torial jurisdiction of the court to which the application was made, and by which the judgment or decree was rendered. Convictions of the crimes of adultery, bigamy, polygamy and unlawful cohabitation have frequently been had. of tin- possessors of, such void decrees of divorce, and many inno cent supposed wives and children have been disinherited who were dependent upon such void decree for existence. 1 1. State v. Westmoreland, 76 H73. 24 Sup. Cf. R. 221; McCreedy S. C. 145, 56 S. E. 673, 8 L. R. v. Davis. 44 S. C. 195, 22 S. E. A. (N. S.) 842; German Soc. v. 178, 28 L. R. A. 655; Harding v. Domltzer, 192 N. S. 125, 48 L. Ed. Harding. 198 U. S. 331, 49 L. Ed. 159 DIVORCE LAWS OF DIFFERENT COUNTRIES 216. What Constitutes Domicile. The domicile of a person is the place he voluntarily fixes as his residence and abode, not for a mere special or temporary purpose, but with a present intention of making it his per- manent hoine. 2 Other definitions are: a residence at a particular place ac- companied by an intention, either positive or presumptive, to remain there permanently, or for an undefined length of time ; 3 the place where a person has his true, fixed permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. 4 Domicile and residence are not convertible terms. The former is of more extensive signification, amPin eludes beyond mere physical presence at the particular locality, positive or presumptive proof of an intention to constitute it a permanent abiding place. 5 1072; Haddock v. Haddock, 201 U. S. 562, 50 L. Ed. 885, 26 Sup. Ct. R., 525; Reeves v. Reeves, 24 S. D. 435, 123 N. W. 869, 25 L. R. A. (N. S.) 574; Thelan v. Theism, 75 Minn. 433, 78 N. W. 108; Dunham v. Dunham, 162 111. 589, 44 N. E. 841, 35, L. R. A. ' 70 ; Adams v. Adams, 154 Mass. 290, 28 N. E. 260, 13 L. R. A. 275; People v. Dowell, 25 Mich. 247, 12 Am. R. 260; Lawrence v. Nelson, 113 Iowa, 277; 85 N. W. 84, 57 L. R. A. 583; Rumping v. Rumping, 36 Mont. 39, 91 Pac. 1057, 12 L. R. A. (N. S.) 1197; Hard v. Hard, 51 Neb. 412, 70 N. W. 1122; People v. Case, 241 111. 279, 89 N. E. 638, 25 L. R. A. (N. S.) 578; Hoffman v. Hoffman, 155 Mich. 328, 118 N. W. 990; Frank- lin v. Franklin, 190 Mass. 349, 77 N. E. 48, 4 L. R. A. (N. S.) 145; Winans v. Winans, 205 Mass. 388, 91 N. E. 394, 28 L. R. A. (N. S.) 992; Watkinson v. Watkin- son, 68 N. J. Eq. 632, 60 Atl. 931, 69 L. R. A. 397, 6 Am. Cases, 326; Bradfield v. Bradfleld, 164 Mich. 115, 117 N. W. 588; Mohler v. Shank, 93 Iowa, 274, 61 N. W. 981, 57 Am. St. 274, 34 L. R. A. 161; In re Christensetf, 17 Utah 412, 53 Pac. 1003, 70 Am. St. 974, 41 L. R. A. 504; Sammons v. Pike,- 108 Minn. 291, 122 N. W. 168, 23 L. R. A. (N. S.) 1254; State v. Morse, 31 Utah 213, 87 Pac. 705, 7 L. R. A. (N. S.) 1127; Wood v. Wood, 59 Ark. 2. 14 Cyc., 833. 3. Merrill v. Morsett, 76 Ala. 433-437; Littlefield v. Brooks, 50 Me. 475-477; Stout v. Leonard, 37 N. J. L. 492-495; State v. Borden town, 32 N. J. L. 192; Cadwala- der v. Howell, 18 N. J. L. 138; Mitchell v. U. S., 21 Wall. (U. S.) 350, 22 L. Ed. 584; Chambers v. Prince, 75 Fed. 176. 4. Story Confl. of Laws, Sec. 41; Smith v. Croon, 7 Fed. 81, 152; Hayes v. Hayes. 74 111. 312, 314; Hairston v. Hairston, 27 Miss. 704. 718, 61 Am. Dec. 530; Hart v. Lindsey, 17 N. H. 235, 243. 5. Krone v. Cooper, 43 Ark. 547; Salem v. Lynn, 29 Conn. 74; Tazewell v. Davenport, 40 111. 179 ; Savage v. Scott, 45 Iowa 130; Cohen v. Daniels, 25 Iowa 88; Love v. Cherry, 24 Iowa 204; Keith v. Stetter, 25 Kan. 100; 160 noMN'II.K I'.V OI'KIIATION or LAW 217 But, in statutes prescribing the jurisdictional prerequisites to the maintenance of actions for divorce or separation, the term "residence" has been held equivalent to "domicile." 6 No person can be without a domicile in contemplation of l;i\\. and he can have but one domicile at the same time for one and the same purpose. 7 217. Domicile by Operation of Law. Domicile by operation of law is consequential, as* that of a wife arising from marriage. 8 The law fixes the domicile of ;i wife by that of the husband, and during cohabitation she cannot acquire a domicile elsewhere. 9 The rule just state/1, however, does not apply where the wife has been abandoned. / s Briggs v. Rochester, 16 Gray (Mass.) 337; Morgan v. Nunes, 54 Miss. 308; Alston v. Newcomer, 42 Miss. 186; Johnson v. Smith, 43 Mo. 499; Walker v. Walker, 1 Mo. App. 404; Stout v. Leonard, 37 N. J. L. 492; Haggart v. Mor- gan, 5 N. Y. 422, 55 Am. Dec. 350; Heennon vs. Grizzard, 89 N. C. 115; Foster v. Hall, 4 Humphrey (Tenn.) 346; Brown v. Boulden, 18 Tex. 431; Long v. Ryan, 30 Gratt. (Va.) 718; Dean v. Can- non, 37 W. Va. 123, 16 S. E. 444; Hall v. Hall, 25 Wis. 600; Collins v. Ashland. 112 Fed. 175; Cham- bers v. Prince, 75 Fed. 176; Brisenden v. Chamberlain, 53 Fed. 307. 6. Hinds v. Hinds, 1 Iowa 36; Shaw v. Shaw, 98 Mass. 158; Her- vey v. Hervey, 56 N". J. Eq. 166, 3 Atl. 767; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Codding- ton v. Coddington, 20 N. J. Eq. 263; Winship v. Winship, 16 N. J. Eq. 107; Demeli v. Demeli, 120 N. Y. 485, 24 N. E. R. 996, 17 Am. St. R. 652; Hall v. Hall, 25 Wis. 600. 7. Algood v. Williams, 92 Ala. 551, 8 So. 722; New Haven 1st. Ntl. Bank v. Balsom, 35 Conn. 351; Love v. Cherry, 24 Iowa, 204; Graham v. Trimmer, 6 Kan. 230; Gilman v. Oilman, 52 Me. 165; Pickering v. Cambridge, 144 Mass. 244, 10 N. E. 827; Beecher v. Detroit, 114 Mich. 228, 72 N. W. 206; Warren v. Board of Registration, 72 Mich. 390, 40 N. W. 553, 2 L. R. A. 205; In re High, 2 Doug. (Mich.) 515. 8. Story, Confl. of Laws, Sec. 48; Smith v. Croon, 7 Fla. 81. 9. Talmadge v. Talmadge, 66 Ala. 194; Johnson v. Turner, 29 Ark. 280; Kashon v. Kashon, 3 Col. 312; Wingfield v. Rhea, 77 Ga. 84; Cooper v. Beers, 143 111. 25, 33 N. E. 61; Jenness v. Jen- ness, 24 Ind. 355; Maguire v. Ma- im in-. 7 Dana (Ky.) 181; Hard- ing v. Alden, 9 Me. 140, 23 Am. Dec. 549; Burlin v. Shannon, 115 Mass. 438; Spaulding v. Steel, 129 Mich. 237, 88 N. W. 627; Hairs- ton v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; Smith v. Smith, 19 Neb. 706, 28 N. W. 495; O'Dea v. O'Dea, 101 N. Y. 23, 4 N. E. 110; Hunt v. Hunt, 72 N. Y. 217, 28 Am. R. 129; Hicks v. Skinner, 71 N. C. 539, 17 Am. R. 16; Dougherty v. Snyder, 15 Serg. & R. (Pa.) 84, 16 Am. Dec. 520; White v. White, 18 R. I. 292, 27 Atl. 506; Hascall v. Hafford, 107 Tenn. 355, 65 S. W. 423, 89 Am. St. R. 952; Clements v. Lacey, 51 Tex. 150; Atherton v. Atherton, 181 U. S. 155, 45 L. Ed. 794. 161 218 DIVORCE LAWS OP DIFFERENT COUNTRIES or forced by brutal treatment to leave the husband. In such cases the wife is permitted to establish a domicile for herself. 10 But a wife who has left her husband without just cause can acquire no separate domicile. 11 218. Domicile for Purpose of Divorce. Where the husband has been guilty of conduct whioh en- titles the wife to a divorce, it is held in some states that she may acquire a separate domicile of her own for the purpose of conferring jurisdiction on the proper tribunal in a pro- ceeding for divorce or separation. 12 After the husband's death, the wife has of course, a right to elect her own domicile. 13 219. Change of Domicile. An existing domicile is not changed until a person abandons it with no present intention of returning thereto, and a new domicile is not acquired until the new residence is taken with the present intention of remaining there indefinitely. This explains why those who, by acts and declarations, prove that they are in a place to remain a fixed time, or until the out- come of a certain event, such as the obtaining of a divorce, are held by all courts to have no domicile in such place. The courts thereof have no jurisdiction to divorce them, and a de- cree of divorce, if obtained under such circumstances, is ab- solutely void. Three things are necessary in the acquirement of a new domicile; viz: (1) the act of removing from the existing domicile with no present intention of returning thereto; (2) actual residence in the new locality, coupled with the present intention of residing there indefinitely; and, (3) the legal ability to acquire a new domicile. 10 Shaw v. Shaw, 98 Mass. ing v. Harding, 9 Me. 140, 23 Am. 158; Arrington v. Arrington, lt)2 Dec. 549; Watkins v. Watkins, N. C. 491, 9 S. E. 200. 135 Mass. 83; Hopkins v. Hop- 11. Maguire v. Maguire, 7 Dan# kins, 35 N. H. 474; Hunt v. Hunt, (Ky.) 181; Burlen v. Shannon, 72 N. Y. 217, 28 Am. R. 129; Irby 115 Mass. 438. v. Wilson, 21 N. C. 568; Colvin 12. Hanherry v. Hanberry, 29 v. Reed, 55 Pa. St. 375: White v. Ala. 719; Moffatt v. Moffatt, 5 Cal. White, 18 R. I. 292, 27 Atl. 506; 280; Chapman v. Chapman, 129 Cravens v. Cravens, 27 Wis. 418; 111. 386, 21 N. E. 806; Jenness v. Che'ever v. Wilson, 9 Wall. (U. S.) Jenness, 24 Ind. 355, 87 Am. Dec. 108, L. Ed. 604. 335; Kline v. Kline, 57 Iowa, 386, 13. Cheely v. Clayton, 110 U. 10 N. W. 825; Johnson v. John- S. 701, 28 L. Ed. 328, 4 S. C. 328. son, 12 Bush. (Ky.) 485; Hard- 162 1'ROOF OF DOMICII.K ^--<> Both residence and intention must be proved. Proof >of in- imtion to remain indelinitely would establish only residence, which does not confer jurisdiction to divorce. A person can have but one domicile at the same time, although they may 1m ve many different residences. Minors, idiots and lunatics cannot acquire a new domicile. The domicile of the minor is where thp parent or guardian is domiciled; that of a lunatic remains where it was when he was adjudged non compos mentis. An idiot's domicile is where his legal guardian is domiciled. It is settled law throughout the United States that a wife may acquire a new domicile, separate from that of her hus- band, whenever she is justified in leaving him. The measure of justification is, acts committed by the husband that en- titles the wife to a dissolution of the marriage relation. The legal doctrine that both residence and intention must be | (roved to effect a change of domicile, is world wide. It is the ruling of all courts, and has been carried to the extent of holding that' the place where one has lived continuously for many years does not become his domicile unless it can be shown, by competent proof, that such person formed the intention of abandoning the existing domicile and the inten- tion of remaining in the last place of residence indefinitely. 14 | 220. Proof of Domicile. The complainant or party to the marriage instituting the 14. Humping v. Rumping, 36 State v. Morse, 31 Utah 213, 87 Mont. 37, 91 Pac. 1057, 12 L. R. .Pac. 705, 7 L. R. A. (N. S.) 1127; A. (N. S.) 1197; Pearce v. Pearce, Post v. Post, 105 N. Y. Supp. 910; 132 Ala. 221, 31 So. 85, 90 Am. Percival >. Percival, 186 N. Y. St. R. 901; Becklenberg v. Beck- 587, 79 N. E. 1114; Felt v. Felt, lenberg, 232 111. 120, 83 N. E. 423; 59 N. J. Eq. 606, 49 Atl. 1071, 47 Lament v. Lamont, 134 Ga. 523. L. R. A. 546; Roe v. Roe, 52 Kan. 68 S. E. 96; Bradfield v. Brad- 724, 35 Pac. 808; Haddock v. Had* field, 154 Mich. 115, 117 N. W. dock, 201 U. S. 562, 50 L. Ed. 588, 129 Am. St. R. 468; Blandin 867, 26 Sup. Ct. 525, 5 Am. Gas. v. Brooks, (Vt.) 76 Atl. 184; 1; Bidwell v. Bidwell, 139 N. C. Becker v. Becker, 160 Ind. 407, 402, 52 S. E. 55, 2 L. R. A. (N. 66 N. E. 1010 ; State vs. Westmore- S.) 324; McCreery v. Davis, 44 land, 76 S. C. 145, 56 S. E. 703, S. C. 195, 22 S. E. 178, 28 L. R. 8 L. R. A. (N. S.) 842; Ingram A. 655; D.uxstad v. Duxstad, 17 v. Ingram, 143 Ala. 129, 42 So. Wyo. 411. 100 Pac. 112, 129 Am. 24, 111 Am. St. R. 31; Hinkle v. St. R. 1138; Winans v. Winans, Lovelace, 204 Mo. 208, 102 S. W. 205 Mass. 388, 91 N. E. 394, 28 1015; Joyner v. Joyner, 131 Ga. L. R. A. (N. S.) 992; Watkinson 217, 62 S. E. 182, 127 Am. St. R. v. Watkinson, 68 N. J. Eq. 632, 220, 18 L. R. A. (N. S.) 647;- 60 Atl. 931, 6 Am. Cases 326, 69 163 220 action for divorce, in order to obtain a decree dissolving the marriage which shall be entitled to faith and credit every- where, under the "faith and credit" clause of the federal con- stitution and the rules of interstate and international law, must not only have an actual domicile in the state where the suit is instituted, for the length of time required by its laws, but must furnish proof of such domicile in conformity with the laws of the state and the requirements of interstate and international law. No presumptions are to be indulged in respecting domicile, and when relied on as the jurisdictional basis of a suit for divorce, the burden of establishing domicile rests upon the one alleging it. The appearance of a non-resident defendant cannot invest a court with jurisdiction of a suit for divorce instituted by a person who has no bona fide domicile within the state. 15 The record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court juris- diction ; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist. 16 The laws of the different states governing proof of domi- cile are so dissimilar that each individual case must depend upon the laws of the state in which the suit is tried, as to the manner and kind of evidence necessary to establish domi- cile. In general, it may be said that not only must residence in the state be proved, but it must be shown that the inten- tion of remaining has existed at all times during the resi- dence. The law of domicile is complex and difficult. It de- pends largely upon intention, and upon the acts and declara- L. R. A. 397; Sworiski v. Swori- former residence involving the ski, 75 N. H. 1, 70 Atl. 119; same matters alleged as a cause Stone v. Stone, 134 Mo. App. for divorce and in which she has 242, 113 S. W. 1157; Duke v. appeared, is guilty of such fraud Duke, 27 N. J. Eq. 434, 65 Atl. as to invalidate a decree of di- 117; White v. Tenant, 31 W. Va. vorce obtained by her, although 790, 8 S. E. 596; Coburn v. Co- the pending of the prior suit burn, 70 Mich. 647, 38 N. W. 607; could not have been pleaded in Dunham v. Dunham, 168 111. 584, .abatement or in bar to her di- 44 N. E. 841, 35 L. R. A. 70. A vorce suit. Dunham v. Dunham, wife who, upon separation from 168 111. 584, 35 L. R. A. 70. her husband, goes to another 15. Andrews v. Andrews, 188 state for the purpose of obtain- U. S. 14, 47 L. Ed. 366, 176 Mass, ing a divorce and, brings suit 92, 57 N. E. 333. without disclosing the fact that a 16. Thompson v. Whitman, 85 suit is pending in the state of her U. S. 457, 21 L. Ed. 897. 164 TKMl'OKARY ABSK.NCK AS A1TKCT1XU DOMICILE 221 lions in each individual case. Acts and declarations, to lie of value as proof of intention, must be consistent with the in tention sought to be proved, and inconsistent with any other intention. If the applicant for a decree of divorce goes into another state for the purpose of procuring a divorce, and for no other purpose, he cannot acquire such a domicile therein as will give the courts of the latter state jurisdiction to grant the derive. In such a case any decree granted would be abso- lutely void, even although the trial court should expressly lind that tin- applicant was in good faith domiciled in the state where the decree was granted. The record of the decree can be contradicted, even in a collateral proceeding in another st;itc. if it can be shown thai such a domicile as would give the courts of the state granting the decree jurisdiction does not exist. 17 221. Temporary Absence as Affecting Domicile. As a new domicile is acquired by giving up the existing one. with no present intention of returning thereto, and tak- ing the new residence with the present intention of residing there indethiitely. it being necessary, in order to effect and prove a change of domicile, to prove both residence and inten- tion. it follows as a necessary conclusion that a domicile once established by the co-operation of the fact of residence and intention of remaining indefinitely is not lost or impaired by temporary absences, for health, pleasure, or business. Oilier- wise those whose business or health cause them to travel in different slates and countries could never acquire a new domi- cile. The laws of all countries allow even- person to have one domicile, and no more than one at the same time. That domi- cile is wherever the cooperation of the fact of residence and intention of remaining indefinitely fixes it. and all courts hold that such domicile is not forfeited nor in any manner impaired by reason of temporary absence therefrom, so long as the intention exists of returning thereto, which is shown by keeping the domicile during the temporary absences. ;md by :i return thereto when the cause for temporary absence no longer 17. AndreVs v. Andrews, 188 E. 394, 28 L. R. A. (X. S.) 992; U. S. 14. 47 L. Ed. 366; Thomp- Hoffman v. Hoffman, 155 Mich. son vs. Whitman, 85 U. S. 457, 21 328, 118 N. W. 990; Lament v. L. E. Ed. 897. Lament (Ga.), 68 S. E. 96; Duke 18. Duekstad v. Duekstad, 17 v. Duke, 72 N. J. Eq. 434. 65 Atl. Wy. 411, 100 Pac. 112; Winans 1117; Bradfleld v. Bradfleld. 154 v. Winans. L'or, Mass. 388, 91 N. Mich. 115, 117 N. W. 588. 165 CHAPTER XXII. CAUSES AUTHORIZING DIVORCE AND THE PRO- CEDURE IN DIFFERENT STATES. 222. Courts without Power to Grant 248. Mississippi. Divorce except by Statutory 249. Missouri. Authority. 250. Montana. 223. Alabama. 251. Nebraska. 224. Alaska. 252. Nevada. 225. Arizona. 253. New Hampshire. 226. Arkansas. 254. New Jersey. 227. California. 255. New Mexico. 228. Colorado. 256. New York. 229. Connecticut. 257. North Carolina. 230. Delaware. 258. North Dakota. 231. District of Columbia. 259. Ohio. 232. Florida. 260. Oklahoma. 233. Georgia. 261. Oregon. 234. Guam. 262. Pennsylvania. 235. Hawaii Territory. 263. Porto Rico. 236. Idaho. 264. Rhode Island. 237. Illinois. 265. South Carolina. 238. Indiana. 266. South Dakota. 239. Iowa. 267. Tennessee. $240. Kansas. 268. Texas. 241. Kentucky. 269. Utah. 242. Louisiana. 270. Vermont. 243. Maine. 271. Virginia. 244. Maryland. 272. Washington. 1245. Massachusetts. 273. West Virginia. 246. Michigan. 274. Wisconsin. 247. Minnesota. 275. Wyoming. 222. Courts without Power to Grant Divorce except by Statu- tory Authority. The courts of any state or territory of the United States are without power to grant absolute divorces except as au- thorized by statute, or the written law of the state in which the suit is instituted. The constitutions of nearly all, if not all, of the states of the Union prohibit legislative divorces for any cause, the sole power being vested in the courts of the respective states. 166 ARIZONA The following are the causes or grounds for absolute divorce in the various states, and a statement of the time of residence required, and the procedure in each state. 223. Alabama. Causes: (1) Incurable iuipotency at date of marriage; i-l adultery; i .", \ abandonment for two years (4) imprisonment in the penitentiary for two years under sentence of not less than seven years; (5) crime against nature whether with man- kind or beast; (6) habitual drunkenness; (7) pregnancy of the wife at the time of the marriage without the knowledge or agency of the husband; (8) actual violence by the husband on the person of the wife attended with danger to life or health. Procedure: The plaintiff must be domiciled in the state for the period of one year before commencing the action. The cause may be tried about five months after service on the de- fendant, before the chancery court. The decree does not per- mit either party to marry again until sixty days after it is rendered. If the ground of divorce is desertion, the plaintiff must be domiciled in the state for the period of three years before instituting the suit. 1 224. Alaska. Causes: (1) Impotency at the time of the marriage, and continuing at the time of the commencement of the suit; (2) adultery; (3) conviction of felony; (4) wilful desertion for two years; (5) habitual drunkenness since marriage, continu- ing for one year; (6) cruel and inhuman treatment calcu- l.i id] to impair or endanger life. Procedure: The plaintiff must be domiciled in the terri- tory two years before commencing suit. The cause may be tried three months after service on the defendant before the United States District Court. The decree does not permit either party to marry until the erpiration of one year after it is rendered. 2 . 225. Arizona. < ''i uses: (I) Adultery; (2) impotency at the time of the 1. Revised Code of Alabama, r ;52; U. S. Stat. at Large, Vols. 1907; Davis v. Davis, 132 Ala. 31-33; Carter's Alaska Code, 1900; 219, 31 So. 473; Wilkinson v. Wil- Leak v. Leak, 156 Fed. 474, 84 kinson, 133 Ala. 382, 32 So. 124; 0. C. A. 284; 3 Alaska 163; Ter- Martin v. Martin, 55 So. 632. rill v. Terrill, 2 Alaska 475, 2. Elliott v. Elliott, 3 Alaska 16T 226 CAUSES AUTHORIZING DIVORCE marriage and continuing to the time of the commencement of the suit; (3) conviction of felony under sentence one year old unless the conviction was on the testimony of the other party to the marriage; (4) wilful desertion or habitual intem- perance for the period of one year; (5) cruel treatment, ex- cesses or outrages by one of the parties toward the other; (6) husband's neglect for one year to provide the necessaries of life, he having the ability; (7) conviction, prior to the mar- riage, of an infamous crime, without the knowledge of the other party; (8) pregnancy of the wife at the time of the marriage, without the knowledge or agency of the husband. Procedure: The plaintiff must be domiciled in the state for the period of one year before commencing the action. The cause may be tried by the court after the expiration of three months from the time of service. The suit must be instituted in the county where the plaintiff has had a domicile for the period of six months next preceding the time of filing the suit 3 226. Arkansas. Causes: (1) Impotency at the time of the marriage and at the time of the action; (2) wilful desertion for one year; (3) former husband or wife living, and undivorced at the time of the marriage; (4) conviction of felony or other infamous crime; (5) habitual drunkenness for the period of one year; (6) cruel and barbarous treatment by one party endangering the life of the other, or indignities rendering the life of the other intolerable; (7) adultery, subsequent to the marriage. Procedure: The plaintiff must be domiciled in the state for the period of one year before commencing the action. The action may be tried after the expiration of four months from the time of service on the defendant. The plaintiff must have been a resident of the state when the cause of action accrued, or it must be cause for divorce in 'the state where the plain- tiff had a domicile when the cause accrued. Action tried by the court. 4 3. Revised Statutes of Arizona, 72 Ark. 281, 183 S. W. 1136 ; Pryor 1900; DeHerlan v. DeHerlan, 6 v. Pryor, 88 Ark. 302, 114 S. W. Ariz. 270, 56 Pac. 871; Walker's 700, 129 Am. St. R. 102; Wood Est, 5 Ariz. 70, 46 Pac. 67. v. Wootf, 59 Ark. 441, 27 S. W. 4. Revised Statutes of Ar- 641, 43 Am. St. R. 42, 28 L. R. A. kansas, 1904; Womack v. Womack, 157. 168 CONNECTICUT ?-'-" 227. California. ('uiixrx: . (1) Adultery: i L' i extreme cruelly; il'.i wilful' desertion r<>r our year: (4) wilful neglect by lmsl;ml for one year; (Tii habitual intemperance for one year; MM convict ion of felony. I'rnmliirr: The plaintiff must he domiciled in the state one year, and in the county where the suit is instituted three 'imiiilis, hefore commencing the action. The trial may he had after the expiration of three months from the time of service on the defendant. The first decree is interlocutory, from whirh an appeal may be taken within six months after it is rendered. Absolute divorce is granted if no cause to the con- trary is shown, one year after tiling the interlocutory decree. The trial is by the court. 5 228. Colorado. rfn/.vr.v; i 1) Impoteucy: ii'i another husband or wife liv- ing, undivorced; (3) adultery subsequent to the marriage: (4) wilful desertion for one year; (5) extreme and repeated cruelty: id. failure of husband to support wife and family for one- year, he being in good health; ^7) habitual drunken- ness for one' year; (8) conviction of felony. Procrrf ur(: The plaintiff must be domiciled for the period of one year before commencing the action. Trial is had by jury after the expiration of three months after service on the de- fendant. The decree does not become absolute until the ex- piration of one year from the date of the verdict of the jury, (luring which time neither party can marry again. 6 220. Connecticut. Causes: (1) Adultery; (2) another husband or wife living and undivorced; (3) wilful desertion for the period of three years: ill seven years' absence unheard from; (5) habitual intemperance 1 -: Mil intolerable cruelty; (7) sentence to im- prisonment in the State Prison-. I'r< t rriliir<-: The- plaintiff must be domiciled in state for a 5. Revised Code of California. rado. 1905; Cairnes v. Cairnes, 1909; Deyoe v. Superior Court, 29 Colo. 264, 68 Pac. 233, 93 Am. 140 Cal. 476, 74 Pac. 28, 98 Am. St. R. 55; Rudolph v. Rudolph, St. R. 73; Pereira v. Perelra, 156 114 Pac. 977; Mottschall v. Mott- Cal. 1, 103 Pac. 488, 134 Am. St. schall, 31 Colo. 260, 72 Pac. 1035; R. 107, 23 L. R. A. (N. S.) 880. Branch v. Branch, 30 Colo. 499, 6. Revised Statutes of Colo- 71 Pac. 1035. 169 8-oU CAUSES AUTHORIZING DIVORCE period of three years before commencing the action. Trial may be had before the court after the expiration of four- months from the time of service on the defendant. 7 230. Delaware. Causes: (1) adultery; (2) bigamy, at the suit of the inno- cent and injured party to the first marriage; (3) conviction of crime followed by continuous imprisonment for the period of two years; (4) extreme cruelty, endangering life or render- ing cohabitation unsafe; (5) wilful desertion for the period of two years; (6) habitual drunkenness for two years. Procedure: The plaintiff may bring suit for divorce in the -county where either party has been domiciled in the -state lor the period of one year, and where so domiciled when the cause of divorce arose, or, if the cause of divorce arose when neither party was domiciled in the state, after the plaintiff has been domiciled in. the state for the period of two years, provided it was a cause for divorce in the place where the plaintiff was domiciled when it arose. The cause is tried, be- fore the court after the expiration of two months from the time of service on the defendant. The first decree is nisi, and an absolute decree may be granted after the expiration of one year from the date of the nisi decree, unless an appeal is pend- ing. 8 * 231. District of Columbia. Causes: Adultery, only. Procedure: The plaintiff must be domiciled in the district for three years before commencing suit, unless the adultery occurred in the district. The equity court of the district hears the cause, which may be tried two months after service on the defendant. Co-respondents must be made parties and served, as well as the guilty spouse. The T T . S. Attorney must appear, and defend and protect the public rights. 7. General Statutes of Con- 518, 52 Atl. 262; Donovan v. Dono- necticut, 1902; Dennis v. Dennis, van, 77 Atl. 765; Krussman v. 68 Conn. 186, 36 Atl. 34, 34 L. R. Krussman, 78 Atl. 642. A. 449; Gould v. Gould, 78 Conn. 9. District of Columbia Code, 242, 61 Atl. 604, 2 L. R. A. (N. S.) 1905; Roate v. Roate, 35 App. D. 531. C. 398; Thompson y. Thompson, 8. Laws of Delaware 1907- 35 App. D; C. 14 ;' Williamson v. 1909; Noudain v. Noudain, 3 Penn. Williamson, 34 App. D. C. 536. 170 .i:oRGIA 232. Florida. Causes: (1) Consanguinity : iJi impotency; i.'!i adultery of one of the parties; (4) extreme cruelty; (5) habitual, vio- lent and ungovernable temper; (6) habitual intemperance; (7) wilful, obstinate ami continued desertion for the period of one year; (8) the obtaining of a divorce by the defendant in another state; (9) a husband or wife of one of the panics living at the time of marriage and un divorced. Procedure: The plaintiff must have had a domicile in the state for the period of two years before commencing the ac- liou. The trial may be had before the court of chancery after the expiration of three months from the time of service on the defendant. The proceedings and trial are the 'same as in oilier chancery suits. 10 233. Georgia. Causes: (1) Consanguinity or affinity; (2) mental incapa- city at time of marriage; (3) impotency at time of marriage; (4) force, menace, fraud or duress-in procuring the marriage; (5) pregnancy of the wife at the time of the marriage, un knoNvn to the husband : 16) adultery committed after the mar- riage; (7) wilful and continued desertion for the period of three years; iSi conviction of an offense involving moral turpitude, and sentence to the penitentiary for two years or more; (9) cruel treatment or habitual intemperance. Procedure: The plaintiff must have had a domicile within the state for a period of one year before commencing the action. The case may be tried by a jury, and the jury may grant either an absolute or a limited divorce. Trial may be had from two to four months after service on the defendant. Before a decree of divorce can be made by the court, two scp.-irate term juries must have returned a verdict in favor of absolute divorce. The terms of court are six months apart in each county. 11 10. General Statutes of Florida, mont v. Lament, 68 S. E. 96; Mo 1906; HancocK v. Hancock, 65 Connell v. McConnell, 70 S. E. Fla. 680, 45 So. 1020, 15 L. R. 647; Gale v. Davis, 68 S. E. 1101; A. (N. S.) 670: Spencer v. Spen- Watts v. Watts, 130 Ga. 683, 61 cer, 55 So. 71; Beekman v. Beek- S. E. 593; Griffln v. Griffin, 130 man, 53 Fla. 858, 43 So. 923. Ga. 527. 61 S. E. 16; Peelrick v. 858, 43 So. 923. Peelrick. 134 Ga. 662, 68 S. E. 515. 11. Code of Georgia, 1911; La- 171 234 CAUSES AUTHORIZING DIVORCE 234. Guam. This territorial possession of the United States has no divorce laws. 12 235. Hawaii Territory. Causes: (1) Adultery; (2) wilful and utter desertion for the period of three years; (3) imprisonment for life, or for seven years or more where no pardon is granted; (4) Chinese leprosy contracted since marriage, if incurable; (5) extreme cruelty; (6) habitual intemperance; (7) wilful neglect. Procedure: ( The plaintiff may commence suit after a domi- 'cile of two years in the territory, but no divorce may be granted unless the parties have lived as husband and wife within the territory. The cause may be tried in the circuit where it is instituted, after the expiration of four months from the time of service on the defendant. A divorce suit for the cause of adultery must be brought within one year after discovery of the offense. 13 236. Idaho. Causes: (1) Adultery; (2) extreme cruelty; (3) wilful desertion for the period of one year; (4) wilful neglect by husband for the period of one year; (5) habitual intemperance for the period of one year; (6) conviction of felony; (7) per- manent insanity, where defendant has been confined in a state insane asylum for a period of six years next preceding the commencement of the action, and it shall appear by the testimony that such insanity is permanent, and the plaintiff has resided in the state one whole year preceding the com- mencement of the action. Procedure: The plaintiff may commence the action after a domicile of one year in the state. The action is tried before the court after the expiration of two months from the time of service on the defendant. The decree does not permit either party to marry again for the period of six months after it is rendered and filed. A marriage of either party be- fore that time constitutes bigamy. The prosecuting attorney must defend all default actions for the state. 14 12. Delasama v. Delasama, 201 Hawaii 342. U. S. 303, 50 L. Ed. 765. 14. Revised Code of Idaho, 13. Revised Laws of Hawaii, 1908; Laws of 1915; Harpold v. 1905; Hebron v. Hebron, 11 Ha- Doyle, 102 Pac. 158; Hilton v. waii 713; Proper v. Proper, 14 Stewart, 15 Idaho 150, 96 Pac. Hawaii 596; Opiopio v. Karre, 7 579, 128 Am. St. R. 48. 172 IOWA 237. Illinois. Cfn/.sv.s: ill Impotenry a I time of marriage; (L'j husband or wife living undivorced; i:!i adultery subsequent to the marriage; (4) wilful desertion for two years without cause; (5) habitual drunkenness for two years; (6) attempting the life of the other spouse by poison or other means showing malice; (7) extreme and repeated physical cruelty endanger- ing life or health; (8) conviction of felony or other infamous crime. rroi-nlun-: The plaintiff may commence the action after a domicile of two years in the state. Trial may be had after the expiration of three mouths after service on the defendant. The decree does not permit either party to marry until the expiration of one year from t the time it is rendered and tiled. The prosecuting attorney must defend all default actions on behalf of the state. 15 238. Indiana. Causes: (1) Adultery; (2) impotency, existing at the time of the marriage 1 ; (3) abandonment for two years; (4) cruel and inhuman treatment; (5) habitual drunkenness; (6) lailure of husband to provide for family for the period of two years; (7) conviction, subsequent to the marriage, of an iu famous crime. Procedure:' The plaintiff may commence the action after a domicile of two years in the state. Trial may be had after the expiration of three months from the time of service on the defendant. Unless there is personal service on the defend- ant neither party can marry again for two years from the date of the decree. The prosecuting attorney must resist all undefended actions. 16 239. Iowa. Causes: (1) Adultery, subsequent to the marriage: desertion for the period of two years; (3) conviction of 15. Revised Statutes of 1111- 235 111. 230, 85 N. E. 207. nois, 1913; Land v. Land, 206 111. 16. Burns' Annotated Statutes 288, 68 N. E. 1109, 99 Am. St. R. of Indiana; State v. Friedley, 151 171; Becklenberg v. Becklenberg, Ind. 404, 51 N. E. 473; West v. 232 111. 120, 83 N. E. 423; Dorsey West, 38 Ind. App. 659, 7 N. E. v. Brigham, 177 111. 250, 52 N. E. 987; Mason v. Mason, 101 Ind. 303, 69 Am. St. R. 228, 42 L. R. 25; Stone v. Stone, 158 Ind. 628. A. 809; Olson v. People, 219 111. 64 N. E. 86; Day v. Hottingham, 40, 76 N. E. 89; People v. Spoor, 160 Ind. 408. 66 N. E. 998. 173 240 CAUSES AUTHORIZING DIVORCE felony after marriage; (4) inhuman treatment endangering the life of the other spouse; (5) habitual drunkenness after marriage; (6) wife pregnant at time of marriage without the husband's knowledge or agency, unless the husband has an illegitimate child, or children, then living. Procedure: The plaintiff must have been domiciled in the state for the period of one year before commencing the action. The trial may be had before the court, and in open court, after the expiration of three months from the time of service on the defendant. The decree does not become absolute or permit either party to marry again until the expiration of one year from the date it is rendered. 17 240. Kansas. Causes: (1) A former husband or wife living, undivorced; (2) abandonment for the period of one year; (3) adultery; (4) impotency; (5) pregnancy of the wife at the time of the marriage by another than the husband; (6) extreme cruelty; (7) fraudulent contract of marriage; (8) habitual drunken- ness;. (9) gross neglect of duty; (10) conviction and im- prisonment in the penitentiary for felony subsequent to the marriage. Procedure: The action may be commenced after the plain- tiff has been domiciled in the state for the period of one year. The trial may be had before the court after the expiration of two months from the time of service on the defendant The first decree is nisi, and 1 neither party can marry until it be- comes absolute, at the end of six months from the date of the nisi decree. 18 _^ v 241. Kentucky. Causes: (1) Abandonment for the period of one year; (2) living in adultery; (3) condemnation for felony; (4) conceal- ing loathsome disease at the time of the marriage, or con- tracting one afterwards; (5) force, fraud or duress in pro- 17. Revised Code of Iowa, Iowa 151, 114 N. W. 631. 1907; Laws of 1913; Graves v. 18. Dassler's General Statutes Graves, 132 Iowa 199, 109 N. W. of Kansas, 1909; Masterman v. 707, 10 L. R. A. (N. S.) 216; Masterman, 58 Kan. 748, 51 Pac. Lawrence v. Nelson, 113 Iowa 277; Dunn v. Dunn, 59 Kan. 773, 27T, 85 N. W. 84, 57 L. R. A. 583; 52 Pac. 69; Roberts v. Fagan, 76 Wood v. Wood, 136 Iowa 128, 113 Kan. 536, 92 Pac. 559; Durland v. N. W. 492, 12 L. R. A. (N. S.) Durland, 67 Kan. 734, 74 Pac. 891; Tollefson v. Tollefson, 137 274, 63 L. R. A. 959. 174 LOUISIANA ?-lU rm-mg marriage; (6) uniting with a religious society which for bids husband and wife from cohabiting, or the rules of which require a renunciation of the marriage covenant; -(7) such i m potency or malformation as prevents sexual inter- course; (8) living apart without cohabitation for five con- secutive years; (9) habitual drunkenness for the period of one year; (10) husband guilty of such conduct as to endanger the life or health of the wife; (11) pregnancy of the wife at the time of the marriage without the husband's knowledge or agency, or such lascivious behaviour on her part as proves her to be unchaste; (12) habitual drunkenness *of wife for one year if the husband is not also guilty of like cause; (13) hus- band guilty of such conduct as indicates aversion, or destroys peace and happiness. Procedure: The action may be commenced after the plain- tiff has been domiciled in the state for the period of one year. The trial may be had in from three to six months after ser- vice on the defendant, before the court of chancery. The court must appoint an attorney to defend all uncontested cases. The action must be brought within five years after the act com- mitted, and the act for which divorce is sought must have been committed in Kentucky, or, if outside of that state, it must be cause for absolute divorce in the state where it was com- mitted. 18 242. Louisiana. Causes: (1) Adultery ( ; (2) condemnation to infamous pun- ishment; (3) habitual intemperance, excesses, cruel treat- ment or outrages of one spouse towards the other, such as to render their living together unsupportable ; (4) public defama- tion; (5) abandonment; (6) attempts of one against the life of the other; (7) on.e charged with infamous offenses, fleeing from justice. In all cases except adultery, or sentence to an infamous punishment, no divorce absolute shall be granted unless a separation from bed and board is first obtained, and 19. Revised Statutes of Ken- Parker, 31 Ky. 197, 122 S. W. 120; tucky, 1909; Williams v. Williams, Parker v. Parker, 31 Ky. L. Sep. 136 Ky. 71, 123 S. W. 337; 1228, 104 S. W. 1028; Pope v. Baker v. Baker, 136 Ky. 617, 124 Pope, 170 S. W. 504; Davis v. S. W. 866; Coles v. Coles, 130 Ky. Davis, 102 Ky. 440, 43 S. W. 168, 349, 113 S. W. 417; Barclay v. 39 L. R. A. 403; Andrews v. An- Commonwealth, 116 Ky. 275, 76 drews, 120 Ky. 718, 87 S. W. S. W. 4; Sebastian v. Rose, 135 1080. Ky. 197, 122 S. W. 120; Parker v. 175 243 CAUSES AUTHORIZING DIVORCE two years shall have expired from the date of the decree of separation, and no reconciliation shall have taken place. Procedure: The courts of Louisiana have no jurisdiction to grant divorce unless the parties, during the marriage rela- tion, have lived as husband and wife in the state. Unless the ground is adultery or an infamous offense, the first action, which may be commenced after a domicile of one year, must ' be for a divorce from bed and board. If the defendant fails to return to the matrimonial home for a period of one year after being summoned to do so, after the expiration of two years from the date of the decree for divorce from bed and board, an action for absolute divorce may be instituted by the plaintiff. Trial is had before the court after the expira- tion of three months from the time of service on the defend- ' ant. The wife cannot marry again for ten months after absolute divorce. The guilty party cannot marry his or her paramour. 20 * 243. Maine. Causes: (1) Adultery; (2) impotency; (3) extreme cruelty; (4) utter desertion continued for the period of three years; (5) confirmed habits of intoxication; (6) cruel and abusive physical treatment; (7) Jmsband, being able, grossly and wantonly neglects to provide maintenance for the wife; (8) insanity when in consequence thereof the defendant has been committed to and confined in a state asylum for the insane for fifteen consecutive years next preceding the commence- ment of the action, and if found to be incurable. Procedure: The action may be commenced after the plain- tiff has been domiciled in the state for the period of one year. The trial may be had in from four to six months after service on the defendant, depending on terms of court. Either party 20. Revised Laws of Louis- 47, 38 So. 890, 112 Am. St. R. iana, 1910; Revised Civil Code 266; Ellerbusch v. Koegel, 108 of Louisiana, 1909; State v. La. 51, 32 So. 191; Hill v. Hill, Boettner, 53 So. 555; Nissen v. 114 La. 117, 38 So. 77; Cornelia Farquar, 121 La. 119, 44 So. 799; v. Cornelia, 114 L. A. 950, 38 Elmore v. Johnson, 121 La. 277, So. 690;' Ramond v. Carrano, 46 So. 310; Rohr v. Stechman, 112 La. 869, 36 So. 787; Blake 119 La. 159, 43 So. 991; Succes- v. Dudley, 111 La. 1096, 36 So. sion of Gabisso, 119 L. A. 1035, 203; Nichols v. Maddox, 52 La. 44 So. 856, 11 L. R. A. (N. S.) An. 1493, 27 So. 966. 1082; Wilcox v. Nixon, 115 La. 176 M ASSACH U SETTS i - I " may demand a jury trial. The plaint ill' must have res hied ill the state when the cause occurred. 21 244. Maryland. Causes: (1) Impotency; (2) any cause which by the laws of the state render the marriage null and void ab initio; (3) adultery; (4) deliberate and filial abandonment for the period of three j*ears; (5) illicit carnal intercourse of the wife with a man, other than the husband, before marriage without the husband's knowledge. Procedure: The action may be commenced at any time if the cause of action was committed in the state. Otherwise either the plaintiff or the defendant must have had a domi- cile in the state for the period of two years before commence- ment of the action. The cause may be tried and determined after the expiration of five months from the comment -emeni of the action. Trial is had on the equity side of the court. 22 245. Massachusetts. Causes: (1) Adultery; (2) impotency; (3) utter desertion continued for three consecutive years next preceding com- mencement of the action; (4) gross and confirmed habit of intoxication; (5) cruel and abusive treatment; (6) neglect of husband to provide suitable maintenance for the wife when of sufficient ability so to do; (7) sentence to confinement at hard labor for life or five years or more, in the state prison, jail or house of correction. Procedure: If the parties have ever lived as husband ami wife in Massachusetts, the action may be commenced after either party has had a domicile of three years in the state, otherwise the plaintiff must have been domiciled in the siai.- for the period of five years before commencing the action. The trial may be had two months after service on the de- 'fendant. The first decree is nisi, and does not dissolve the marriage, or allow either party to marry again. An absolute divorce may be entered six months after the nisi decree, if no 21. Revised Statutes of Maine, Maryland, 1904; Wheeler v. 1903; Walker v. Walker, 89 Atl. Wheeler, 101 Md. 436, 61 Atl. 373; Leathers v. Leathers, 19 Atl. 216; McSherry v. McSherry, 77 16; Spinney v. Spinney, 87 Me. Atl. 653; Adams v. Adams, 101 484, 32 Atl. 1019. Md. 506, 61 Atl. 628. 22. Public General Laws of 177 ^5 246 CAUSES AUTHORIZING DIVORCE cause is shown to the contrary. The guilty party cannot marry for two years after the absolute divorce is entered. 23 246. Michigan, r^ Causes: (1) Adultery; (2) jmpotency at the time of the marriage; (3) imprisonment for three years in any prison, jail or house of correction; (4) habitual drunkenness; (5) defendant having obtained a divorce in another state; (6) desertion for two years p (1} neglect and refusal of the hus- band to support the wife when of sufficient ability so to do; S)' extreme cruelty. Procedure: Unless the defendant is domiciled in thfe state and served therein with process when the suit is filed, or the parties have lived together as husband and wife in Michigan, suit cannot be commenced until the plaintiff has been doini- ciled in the state two years. Except for the cause of deser- I tion, the trial cannot be had until the expiration of two months from the time of commencement of the suit. The hearing is had in the court of chancery, in open court, unless the court orders a reference to a circuit court commissioner or other person authorized to administer oaths, to take the_ testimony. In all cases where there are minor children ser- vice of process must be made on the prosecuting attorney of the county where the suit is pending. The court may order the prosecuting attorney to appear in any uncontested case. 24 247. Minnesota. Causes: (1) Adultery; (2) impotency; (3) cruel and in- human treatment; (4) sentence to imprisonment in any state prison or state reformatory subsequent to the marriage; (5) wilful desertion for one year. 23. Revised Laws of Massa- 145; Winans v. Winans, 205 Mass.. chusetts, f902 and Supp. 1908; 388, 91 N. E. 394, 28 L. R. A. (N. Commonwealth v. Stevens, 196 S.) 992. tl fa<* Mass. 280, 82 N. E. 33, 124 Am. 24. C. L. 1915, (11433); How. St. R. 555; Whippen v. Whippen, 2nd. Ed., 11494; Filer v. Filer, 171 Mass. 560, 51 N. E. 174; 77 Mich. 469, 43 N. W. 887; Coon Chace v. Chace, 191 Mass. 166, v. Coon, 129 N. W. 12; Bradfield 77 N. E. 782; Tyler v. Tyler, 170 v. Bradfield, 154 Mich. 115, 117 Mass. 150, 48 N. E. 1075; Brown N. W. 588; Jamison v. Ramsey, v. Brown, 93 N. E. 607; Frank- 128 Mich. 315, 87 N. W. 260; lin v. Franklin, 190 Mass. 349, Bentley v. Hosmer, 110 Mich. 626, 77 N. E. 48, 4 L. R. A. (N. S.) 68 N. W. 650, 69 N. W. 660. 178 MISSOURI ?-!'> Procedure: The suit may be commenced after the plain i ill has beeii domiciled iu the state one year. The trial may be had after the expiration of two months from the time of ser- vice on the defendant. -The decree does not become absolute so as to permit either party to marry again until six months after it is filed in the clerk's office. 25 248. Mississippi. Causes:' (1) Adultery; (2) natural impoteucy; (3) sentence in i he penitentiary; (4) wilful, continued and obstinate de- sertion for two years; (5) habitual drunkenness: ii habitual use of morphine, opium or other like drug; (7) habitual, cruel and inhuman treatment; (8) insanity or idiocy ai the time of the marriage, unknown to the other party; i !h another hus- band or wife living, uudivorced ; (10 1 pre^nanc -y ..I the wife ai ilie time of the marriage, unknown to the husband ami without his agency; (11) consanguinity. I'rnrcilm-c: I'nless both parties are domiciled in the state of Mississippi when the action is commenced and the defend- ant served with process within the state, the action cannot be commenced until one of the parties has had an actual domi- cile in the state for the period of one year. The trial may be had in the court of chancery three mouths after service on the defendant.-' 1 ' 1 249. Missouri.. Causes: (1) Impotency at the time of the marriage; (-) another husband or wife living, undivorced; (3) desertion for the period of one year; (4) adultery committed since the mar- riage; (5) conviction of felony or infamous crime since the marriage; (6) habitual drunkenness for the period of one year; (7) cruel and barbarous treatment endangering the life of the other; (8) indignities rendering the marriage n lation intolerable; (!)) husband becoming a vagrant; (10) conviction of felony or infamous crime prior to the marriage. 25. Revised Laws of Minne- Am. St. R. 371; Wilson v. Wil- sota, 1913; State v. Yoder, 130 N. son, 95 Minn. 464, 104 N. W. 300. W. 10; State v. Blue Earth 26. Code of Mississippi, 1906; County Court, 125 N. W. 133; Sutter v. Sutler, 72 Miss. 345, 16 Betchel v. Betchel, 101 Minn. So. 673; Graves v. Graves, 80 511, 112 N. W. 382, 12 L. R. A. Miss. 677, 41 So. 384; Grego v. (N. S.) 1100: Sodini v. Sodini, 94 Grego, 78 Miss. 443, 28 So. 817. Minn. 301, 102 N. W. 861, 110 250 CAUSES AUTHORIZING DIVORCE unknown to the other party at the time of the marriage; (11) the wife being pregnant at the time of the marriage, by one other than the husband, and without the husband's knowledge at the time of the marriage. Procedure: The action cannot be commenced until after the plaintiff has been domiciled in the state for the period of one year. The cause may be tried three months after service on the defendant. Actions for divorce are tried before the court. 27 250. Montana. Causes: -(1) Adultery; (2) extreme cruelty; (3) wilful desertion for one year; (4) habitual intemperance for the period of one year; (5) conviction of felony. Procedure: The action cannot be commenced until the plaintiff has been domiciled in the state for the period of one year. The cause may be tried before the court after the ex- piration of three months from the time of service on the de- fendant. Neither can marry again for the period of two years after the divorce is granted. 28 $251. Nebraska. Causes: (1) Adultery; (2) iinpotency at time of marriage; (3) imprisonment in any prison, jail or house of correction for the period of three years or more; (4) desertion for the period of two years; (5) habitual drunkenness; (6) sentence to imprisonment for life. Procedure: If the cause of action arose in the state, the action may be commenced after the plaintiff has been domi- ciled in the state for the period of one year. If the cause of action arose outside of the state, the action cannot be com- menced until the plaintiff has been domiciled within the state for two years. Trial may be had before the court after the expiration of two months from service on the defendant. The decree does not become final or operative until the expiration 27. Revised Statutes of Mis- W. 1157. souri, 1900; State v. Hubbard, 28. Revised Code of Montana, 201 Mo. 639', 100 S. W. 586; Rob- 1907; State v. Dist. Court, 38 inson v. Robinson, 129 S. W. 725; Mont. 166, 99 Pac. 291, 129 Am. Keller v. Keller, 129 S. W. 492; St. R. 636; Franklin v. Franklin, Humphrey v. Humphrey, 115 Mo. 106 Pac. 353; Rumping v. Rurnp- App. 361, 91 S. W. 405; Stone v. ing, 36 Mont. 39, 91 Pac. 1057, Stone, 134 Mo. App. 242, 113 S. 12 L. R. A. (N. S.) 1197. 180 .\K\\ 1 1. \\irsiiiKi: S-~> : > of six months from tin- time it entered, .md neither party c;in marry again until it becomes final. ' $252. Nevada. Causes: (1) Impotency at the time of the marriage; (2) adultery since the marriage; i.T) wilful desertion for the period of, one year: (4) conviction of a felony or other in t'.-imoiis crime: i .". i h;ibitual and gross driiiikenness ; (6) ex- ireine cruelty by either party. 1'rnrrtlnrr: The action may be commenced after the plain titV has been domiciled in the state for the period of one year. The cause may be tried after the expiration of five months from the time of service on the defendant, and less time if the service is made within the state of Nebraska. The cause may be tried in open court at a regular term in the county of the plaintiffs domicile. 30 253. New Hampshire. Causes: (1) Impotency; (2) adultery; (3) extreme cruelty : (4) conviction of crime punishable by imprisonment for the period of one year, and actual imprisonment thereunder ; i " i conduct seriously injuring the health of the other; (G) con duct seriously endangering reason; (7) absence Tor three years unheard of: iS) habitual drunkenness for the period of three years; (9) joining a religious society which believes and teaches that the relation of husband and wife is unlawful, and refusal to cohabit for the period of six months; (10) abandon- ment without cohabitation for three years; (11) wife absent ing herself for three years; (12) husband absenting himself for three years, without provision for the support of the wife; (13) the wife of a citizen going to reside beyond the limits of the state, and remaining absent and separated for the period of ten years, without the consent of the husband, or without claiming her marriage rights; (14) wife of an alien, or citi- 7.c\\ of another state, residing in this state three years, her 29. Compiled Statutes of Ne- 99 N. W. 482; Pine v. Pine, 72 braska, 1911; Lumber Co. v. Neb. 463, 100 N. W. 938. Dewey, 126 N. W. 87; Eaton v. 30. Compiled Laws of Nevada, Eaton, 66 Neb. 676, 92 N. W. 1912; Laws of 1913; Kapps. 7th 995, 60 L. R. A. 605; Kirkpatrick district Court, 107 Pac. 95; Mc- v/Kirkpatrick, 81 Neb. 627, 116 Kinn v. 2nd. District Court, 110 \ W. 499, 129 Am. St. R. 708; Pac. 4; Worthington v. Dist. Schafer v. Schat'er, 71 Neb. 708, Court, 142 Pac. 238. 181 254 CAUSES AUTHORIZING DIVORCE husband having left the United States with the intention of becoming a citizen of a foreign country, and not having come into this state during said period and claimed his marital rights, or made suitable provision for his wife's support and maintenance. Procedure: The action may be commenced after the plain- tiff has been domiciled in the state for the 'period of one year. The cause may be tried before the court after the ex- piration of four months from the time of service on the de- fendant. 31 254. New Jersey. Causes: (1) Adultery; (2) wilful continued and obstinate desertion for the term of two years. Procedure: The action cannot be commenced until the plaintiff has had a domicile in the state fpr the term of two years, and no divorce can be granted unless the cause .9f action arose while either the plaintiff or the defendant was domiciled in the state, unless the act complained Df was a cause for divorce under the laws of the state of the domicile of one of the parties at the time it was committed. The trial may be had before the court of Chancery, after the expira- tion of six months from the time of service on the defend- ant, and after the report of the commissioner is filed with the court. The first decree is nisi and does not become ab- solute until the expiration of six months, or, if an appeal is taken, until the appeal is decided, during which time neither party can again marry. A jury trial may be had. All de- cisions prior to 1907, when an entire new divorce act was passed by the legislature, are entirely inapplicable, except as to what acts constitute ground for divorce. 32 255. New Mexico. Causes: (1) Abandonment; (2) adultery; (3) impoteucy: (4) the wife pregnant at the time of the marriage, by another than the husband, without his knowledge; (5) cruel and in- 31. Public Statutes of New 32. Compiled St. 1910, Vol. 2, Hampshire, 1901 ; Drake 7. Drake, pp. 2030-2032; Flynn v. Flynn, 7S Atl 1071; Sworoski 7. Swore- (N. J.) 92 Atl. 645; Koch v. Koch, ski 75 N. H. 1, 70 Atl. 119; - 79 N. J. Eq. 24, 80 Atl. 113; Shute v Sargent, 67 N. H. 305, Getz v. Getz, 81 N. J. Eq. 465, 36 Atl 282; Hillard v. Baldwin, 81 Atl. 376; Mason v. Mason, 69^ 80 Atl. 139. N. J. Eq. 292, 60 Atl. 337. 182 \oRTIl CAROLINA gZul humau treatment; (6) neglect of the husband to support the wife according to his ability, means and station in life; (7) habitual drunkenness; (8) conviction and imprisonment for felony. Procedure: The action cannot be commenced until the plaintiff has been domiciled in the state for the period of one year. The trial may be had after the expiration of three months from the time of service on the defendant. The first decree is nisi, and does not become absolute, or allow either party to marry again, until the expiration of six months from i he date of the nisi decree. 83 256. New York. Causes: In the State of New York the only ground for ab-. -olute divorce is adultery. Procedure: Unless the offense was committed in the state, while one or both of the parties were domiciled therein, the plaintiff must have had a domicile within the state for the period of one year before commencing the action. The trial may be had after the expiration of two months from the time of service on the defendant. In contested cases the trial is by jury, unless the parties stipulate that the hearing shall lu- ll ad before a referee. Un contested cases are tried by the court. The first decree is nisi and does not permit either party to marry, or dissolve the marriage. The nisi decree does not become absolute, automatically, but upon application of the party entitled to it. After the nisi decree has been recorded three months it may be made absolute. The nisi decree can- not be made absolute if the party entitled to it does not so ties ire, and it does not become and cannot be made absolute in case of ihc death of either party. The final judgment cannot stand if the parties cohabit after the interlocutory decree. 84 257. North Carolina. CiiHxf'*: (1) Living in adultery; (2) separation for ten years, ff there are no children, issue of the marriage. 33. Compiled Laws of New N. E. 578, 134 Am. St. R. 830; Mexico. 1897; Session Laws of Ptttit v. Petiit. 93 N. Y. Supp. 1897 to 1911; Territory v. Har- 1001, 105 App. Div. 312; Adams wood, 110 Pac. 556. v. Adams, 106 N. Y. Supp. 1064; 34. Consolidated Laws of New Gary v. Gary, 129 N. Y. Supp. York, 1909; New Code of Civil 444; Dye v. Dye, 125 N. Y. Supp. Procedure (N. Y.), 1911; In Re 242; In Re Newcomb's Estate, Craiulall's Zst., 196 N. Y. 127, 89 192 N. Y. 238, 84 N. E. 950. 183 258 CAUSES AUTHORIZING DIVORCE Procedure: The plaintiff must have lived in the state for the period of two years before commencing the action, if adultery is the cause for which divorce is sought, and for ten years if living separate is the cause. The cause must be tried by a jury and a verdict in favor of absolute divorce rendered, before the court can enter such decree. 35 258. North Dakota. Causes: (1) Adultery; (2) extreme cruelty; (3) wilful neglect of wife for one year; (5) habitual intemperance for the period of one year; (6) conviction of a felony. Procedure: The action may be commenced after the plain- tiff has had a domicile within the state for the term of one year, if the plaintiff is a citizen of the United States. Other- wise the plaintiff must live in the state, or some other part of the United States, for the period of two years, and must have declared intention to become a citizen of the United States. The action may be tried after the expiration of thirty days from the time of service on the defendant. The first decree is nisi and does not permit either party to marry again for the term of three months 'from the date it is entered. 36 259. Ohio. Causes: (1) Husband or wife living at the time of the marriage; (2) wilful absence for three years; (3) adultery; (4) inipotency: (5) extreme cruelty ; (6) fraudulent marriage contract; (7) gross neglect of duty; (8) habitual drunkenness for three years; (9) imprisonment in the state penitentiary; (10) defendant obtaining a divorce in another state. Procedure: The plaintiff must have been domiciled in the state for the term of one year before commencing the action. The cause may be tried after the expiration of five months from the time of service on the defendant, where the defend- ant is a non-resident of the state. If the defendant is- a resi- 35. Revised Laws of North 36. Revised Code of North Carolina, 1905; Session Laws of Dakota, 1913; Weimer v. Weimer, North Carolina, 1907-1913; Kin- .130 N. W. 1015; State v. Tem*le- ney v. Kinney, 149 N. C. 321, 63 ton, 123 N. W. 283, 25 L. R. A. S. E. 97; Cook v. Cook, 80 S. E. (N. S.) 234; Mosher v. Mosher, 178; Pendergast v. Pendergast, 113 N. W. 99, 12 L. R. A. (N. 146 N. C. 225, 59 S. E. 692; Me- S.) 820; Rindlaub v. Rindlaub, Kenzie v. McKenzie, 69 S. E. 134. 123 N. W. 479. 184 OREGON i he tried at a regular term of the court before a jury. Trial may he had after the expiration of six mouths from the date of service on the defendant. 48 269. Utah. Causes: (1)' Impotency of the defendant at the time of the marriage; i'2) adultery committed by the defendant suhse qnent to the marriage; (3) wilful desertion for more than one year; (4) wilful neglect on the part of the husband to pro- vide the necessaries of life for the wife for more than one year; (5) habitual drunkenness for more than one year; (6) cruel treatment causing great bodily injury or great mental distress. Procedure: The action may be commenced after the plain- tiff has been domiciled in the state for the period of one year. The trial may be had after the expiration of two months from the time of service on the defendant. The prosecuting attorney must defend for the state. The first decree is inter- locutory, to be made final in six months. The parties are prohibited from marrying again for six months after the final decree, or, if an appeal is taken, until the decision of the Appeal. 47 270. Vermont. Causes: (1) Adultery; (2) when either party is sentenced to continement at hard labor in the state prison for life, or for three or more years, and is actually confined therein at the time of sit; (3) for intolerable severity in either party: (4) for wilful desertion for three consecutive years, or when either party is absent and unheard of for seven years: \\here the husband, having the ability, grossly, wantonly and cruelly neglects to provide suitable maintenance for the wife. PrtK-raurc: Unless the cause alleged for divorce was com- 46. Civil Statutes of Texas. Tex. Civil Aop 630. 79 S. W. 74. 1912; Session Laws. Texas, 1913; 47. Compiled Laws of Utah. Dickinson v. Dickinson, 138 S. 1907; Session L;i\vs of Utah, W. 205; McMurray v. McMurray, 1909; State v. Morse, 31 Utah, 67 Tex. 666, 4 S. W. 357; Hay- 213, 87 Pac. 705. 7 L. R. A. (N. mond v. Haymond. 74 Tex. 419, 12 S.) 1127: In Re Christensen's S. W. 90; Young v. Young, 127 S. Est.. 17 Utah, 412. 53 Pac. 1002. W. 898; Michael v. Michael, 34 79 Am. St. R. 794. 41 L. R. A. 504. 189 271 CAUSES AUTHORIZING DIVORCE init'ted in the state, the action cannot be brought until the plaintiff has been domiciled in the state for the term of two years. If either party was living in the state when the offense was committed, only one year's domicile is required. The x trial may be had after the expiration of four months from the time of service on the defendant. The guilty party can- not marry again for three years. 48 271. Virginia. Causes: (I/) Adultery; (2) impotency existing at the time of the marriage; (3) sentence to the penitentiary; (4) con- viction of infamous offense prior to the marriage, without the knowledge of the other party; (5) where either party is charged with'an offense punishable with death, or with con- finement in the penitentiary, is a fugitive from justice, or has been absent two years; (6) desertion for three years; (7) pregnancy of the wife at the time of the marriage, without the knowledge or agency of the husband; (8) where the wife, prior .to the marriage, was a prostitute, unknown to the hus- band, provided the husband has not cohabited with her after knowledge of such prostitution. Procedure: The plaintiff must have had a domicile in the state for one year before commencing the action. The trial may be had before the court after the expiration of four months from the date of service on the defendant. Absolute divorce cannot be granted for desertion until it has existed in the state three years. 49 272. Washington. Causes: (1) Marriage through force or fraud where there has been no cohabitation; (2) adultery of either party; suit must be brought within one year after discovery; (3) im- potency; (4) abandonment for one year; (5) cruel treatment or indignities producing physical injury; (6) habitual drunk- enness or failure of the husband to support the wife without cause; (7) imprisonment in the penitentiary if action is brought ' during confinement; (8) after incurable chronic 48. Pub. Statutes of Vermont, 49. Virginia Code, 1904; Laws, 1906; Blondin v. Brooks, 76 Atl. 1908-1910; Willard v. Willard, 98 184; Pratt v. Pratt, 75 Vt. 432, Va. 465, 36 S. E. 518; Haynor v. 56 Atl. 86; Sargood v. Sargood, Haynor, 70 S. E. 531. 77 Vt. 478, 61 Atl. 472. 190 \VKST VIKCI.MA $-''. mania or dementia has existed for ten successive years, the court may. in its discretion, uraiit an absolute diy)rce. Procedure: The action cannot lc commenced until the plaintiff has been domiciled in the state for one year. The trial may be had before the court after the expiration of three n ion ilis from the date of service on the defendant. The prose- cuting attorney must defend uncontested actions on behalf of the state. The decree of divorce must provide that neither party can marry again for six months after it is rendered, or, if an appeal is taken therefrom, not until the cause is finally determined on appeal. 60 273. West Virginia. Causes: (1) Adultery; (2) impotency existing at the time of the marriage and incurable; (3) sentence to confinement in the penitentiary; (4) conviction of infamous offense prior to the marriaue. \\ithout the knowledge of the other party: (5) desertion for three years; (6) pregnancy of the wife at the time of the marriage, without the husband's knowledge or agency; (7) the wjfe having been a notorious prostitute prior to the marriage, without the husband's knowledge: (8) the husband having been a notoriously licentious person before the marriage, without the knowledge of the wife: but no divorce can be granted for conviction of infamy, prostitution. or licentiousness, or antenupital pregnancy, where there has been cohabitation after knowledge of the facts. Procedure: The action may be begun after either party has had a domicile in the state for the period of one year. The trial may be had after the expiration of four months from the time of service on the defendant. Adultery, prior nnchastity. impotency, felony, and desertion for three years, are the only causes for absolute divorce. Otherwise, limited divorce must first be obtained which may be the basis of an 50. Washington Revised Code; 771, 25 L. R. A. (N. S.) 387; Statutes, 1910; Bickford v. Bick- State v. Wheeler, 43 Wash. 183, ford, 107 Pac. 186; In re Hallope- 86 Pac. 394; Pringle v. Pringle, ter, 52 Wash. 41, 100 Pac. 104 Pac. 159; Lee v. Lee, 19 Wash. 159, 132 Am. St. R. 945; Pierce 355, 53 Pac. 349; Wheeler v v. Pierce, 109 Pac. 45; Bucholz v. Wheeler, 38 Wash. 491, 80 Pac. Bucholz, 115 Pac. 88; State v. 762; Piper v. Piper, 46 Wash. Supr. Ct. 104 Pac. 701; State v. 671, 91 Pac. 189. Lloyd, 55 Wash. 347, 104 Pac. 191 274 CAUSES AUTHORIZING DIVORCE absolute divorce if the parties do not become reconciled with- in two yearg. 51 274. Wisconsin. Causes: (1) Adultery; (2) impotency: (3) sentence sub- sequent to marriage to imprisonment for three years or more, provided suit is brought during confinement; (4) where the husband treats the wife in a cruel and inhuman manner, or the wife so treats the husband, or is a drunkard; (5) habitual drunkenness for one year; (6) voluntary living apart for the period of five years next preceding the commencement of the action. Procedure: In the state of Wisconsin an entirely new law governing domicile, and procedure in cases, for divorce and annulment of marriage, was enacted by the legislature of 1909. Suit to annul a marriage may be begun when the plain- tiff has been domiciled in the state one year. In actions for divorce, unless one of the parties was domiciled in the state when the cause was committed and remained so until the commencement of the action, a suit for a divorce cannot be commenced until the plaintiff has been domiciled in the state for two years. The prosecuting attorney must resist all undefended appli- cations. At the trial, which may be had two months after service on the defendant, an interlocutory divorce is entered, and at the end of one year, if an appeal is not pending, or the interlocutory judgment reversed or set aside, an absolute di- vorce may be granted upon proper application. Where the marriage is annulled, the first decree is also interlocutory, to be made absolute in the same time and on the same conditions as in divorce cases. 52 / 275. Wyoming. Causes: (1) Adultery; (2) impotency at the time of the marriage, continuing to the time of the action for divorce is commenced; (3) conviction of felony and sentence there- 51 West Virginia Statutes, 762; Trough v. Trough, 59 W. Va. 1914- Hartigan v. Hartigan, 65 W. 464, 53 S. E. 630, 115 Am. St. Va. 471, 64 S. E. 726; Reynolds R. 940, 4 L. R. A. (N. S.) 1185. v. Reynolds, 69 N. E. 381; Max- 52. Revised Statutes of Wis- well v Maxwell, 67 W. Va. 119, consin, 1913; Yates v. Yates, 147 71 S. E. 571, 27 L. R. A. (N. S.) N. W. (Wis.) 60. 712; Bacon v. Bacon, 70 S. E. 192 WYOMING 275 under in any prison; (4) desertion for the period of one year; (5) habitual drunkenness; (G) extreme cruelty; (7) failure of husband, having the ability, to provide for the wife for one year; (8) indignities rendering conditions intolerable. Procedure: Unless the marriage was celebrated in the state, and the plaintiff has resided therein from the date of the marriage to the date of the commencement of the suit, the plaintiff must have been domiciled in the state for the period of one year. The trial may be had in about three months from the time of service on the defendant. All divorce judgments are interlocutory, and do not dissolve the marriage, nor per- mit either party to marry again until the expiration of one year from the date of the decree. 83 53. Wyoming Compiled Stat- 17 Wyo. 511, 100 Pac. 112, 129 Am. utes. 1910; Duekstad v. Duekstad, St. R. 1138. 193 CHAPTER XXIII. DIVORCE AND ANNULMENT OF MARRIAGE IN MICHIGAN. 276. Jurisdiction. 277. Marriages Void without Divorce Legitimacy of Issue. 278. Marriages Procured by Force or Fraud. 279. Actions to Annul Void Marriage. 280. Sufficiency of Evidence. 281. Actions to Affirm Marriage. 282. Sentence to Imprisonment for Life. 276. Jurisdiction. In the State of 'Michigan the several circuit courts in chancery have jurisdiction to grant decrees of absolute di- vorce, limited divorce, and decrees annulling or affirming mar- riages, for causes specified in the statutes. The statute declares certain marriages, solemnized within this state, to be absolutely void without any decree of divorce or other legal process. 1 The statute also provides for actions for the annulment of a marriage supposed to be void, or the validity of which is doubted, as well as proceedings to affirm such marriages. 2 There is a clear distinction between actions for divorce, and actions for the annulment of marriages. An action for divorce proceeds upon the theory of a valid marriage, which the plaintiff asks to have dissolved, and no decree of divorce can be granted without satisfactory proof of a valid marriage. An action to annul a marriage proceeds upon the theory that the supposed marriage is void, and that no valid mar- riage between the parties ever existed. 277. Marriages Void without Divorce Legitimacy of Issue. All marriages which are prohibited by law on account of 1 C L 1915, (11392) ; Howell, and not within the original cog- 2nd Ed., 11453. nizance of the courts of equity. 2.' C. L. 1915, (11394); Howell, Baugh v. Baugh, 37 Mich. 1; 2nd. Ed., 11455. Jurisdiction Haines v. Haines, 35 Mich. 145. over divorce is purely statutory 194 MARRIAGE PROCURED BY FORCE OR FRAUD 278 consanguinity or affinity between the parties, or on account of either of them having a former husband or wife living and undivorced, and all marriages soh-iinii/ed when either of the parties was insane or an idiot, if solemnized within this state, are absolutely void without any decree of divorce or other legal process. 3 But the issue of such marriages, except when the marriage was contracted while either of the parties there- to had a former husband or wife living and undivorced. must be deemed legitimate. But marriages solemnized when either of the parties was under the legal age of consent are not absolutely void, al- though the statute prohibits such marriages. The statute provides that if the parties separate during such non-age, and do not cohabit together afterwards, such marriage shall be deemed void, without any decree of divorce or other leg.il process. 4 Such a marriage may be annulled by the mutual consent of both parties, or at the election of the party under the age of legal consent, but not at the election of the party of competent age. 5 When one of the parties is under the legal age of consent-. the marriage is voidable only:" but will be void if the party under age withdraws and refuses to cohabit before attaining the age of consent. 7 \ 278. Marriages Procured by Force or Fraud. In <-ase the consent of one of the parties is obtained by force or fraud, and there is no subsequent voluntary cohabi- tation of the parties, the marriage is deemed void withour any decree of divorce or other legal process. 8 "Where a youth was frightened into a marriage on a charge of bastardy, the marriage was annulled for duress. 9 Force or fraud which will invalidate a marriage must 3. C. L. 1915. (11392); Howell, 209. The legal age of consent is 2nd. Ed., 511453; In Re Fitzgib- fixed by statute at the age of bons' Estate, 162 Mich. 416, 419- eighteen years for males and six- 421, 127 N. W. 313. teen years for females. C. L. 4. C. L. 1915, (11393); Howell. 1915. (11362); Howell. 2nd. Ed. 2nd. Ed., 511454. 11423. 5. People v. Slack, 15 Mich. 8. C. L. 1915, (11393) ; Howell, 193. 2nd. Ed., 11454. 6. Bonker v. People, 37 Mich. 9. Smith v. Smith, 51 Mich. 7. 607, 17 N. W. 76. 7. People v. Bennett, 39 Mich. 195 279 DIVORCE AND ANNULMENT usually be such as to negative any consent to be married at all, without reference to previous inducements. The com- moner cases are duress, surprise or stratagem in procuring the marriage itself to be carried out ; and the fraud or duress must usually be nearly, if not absolutely, coincident in time with the marriage, and must operate to destroy that intelli- gent consent which is required for the marriage itself, rather than the preliminary engagement. 10 To warrant a decree annulling a marriage for fraud, there must be satisfactory evidence to sustain the charge, regardless of the declarations, confessions or admissions of the parties. 11 The statute forbids decrees for divorce, or for annulment solely on declarations, confessions or admissions of the par- ties, but this prohibition does not exclude such confessions or admissions, although the court must require other evidence of the facts alleged in the bill to justify a decree. 12 A marriage may be annulled for fraud, as where a woman induces a man to marry her by representing herself to be pregnant by him, knowing that her pregnancy was by an- other. 13 But in such case the man must have been actually deceived by the representation, must have believed them, and must move diligently when he discovers their falsity. Chas- tity is not an essential requisite to a valid marriage, and antenuptial incontinence is not always a ground for divorce or for a decree of annulment. 14 279. Actions to Annul Void Marriage. When a marriage is, supposed to be void, or its validity is doubtful, for any of the causes mentioned in the statute, either party, except in cases where a contrary provision is made, may file a bill of complaint in the circuit court in chancery in the county where the parties or one of them re- side, for annulling the same, and the same proceedings are had as in case of a bill filed in the same court for a divorce. Upon sufficient proof of the nullity of .the marriage, it will be declared void by a sentence or decree of annulment. 15 10 Leavitt v. Leavitt, 13 Mich. 13. Sissung v. Sissung, 65 452 Mich. 168, 31 N. W. 770. 11. Dawson v. Dawson, 18 14. Leavitt v. Leavitt, 13 Mich. Mich 335 452. 12.' C. 'L. 1915, (11428) ; How- 15. C. L. 1915, (11394) ; How- ell, 2nd Ed., 11489; Dawson v. ell, 2nd. Ed., 11455. DaWson, 18 Mich. 335. 196 ACTION TO AFFIRM .MAKKIAOE 281 It will be noticed iluit the statute requires the same pro- ceedings to be liail in actions to annul a marriage as in actions for divorce; hence, in an action instituted by the husband to procure the annulment of the marriage, the court in which t In- action is pending may require the husband to pay money to tin- \\itV to enable her to carry on the suit. 18 280. Sufficiency of Evidence. A marriage should not be annulled unless the evidence is so clear and convincing that no other conclusion can be drawn from it than that the facts necessary to make the marriage illegal actually exist. Every consideration of public policy ami humanity admonishes us that a contract so essentially connected with the peace and happiness of individuals ami families, ami with the well-being of society, should not be annulled unless the proof of the necessary facts is clear and convincing. The law not only favors, but encourages mar- riage, ami. when once solemnized according to the forms of law. they will not be declared void upon anything short of clear and convincing testimony. 17 281. Actions to Affirm Marriage. The statute also provides that "when the validity of any marriage shall be denied by either of the parties, the other party may tile a bill or petition in the manner aforesaid, for affirming the marriage: and upon due proof of the validity thereof, it shall be declared valid, by a decree or sentence of the court: and such decree, unless reversed on appeal, shall be conclusive upon all persons concerned." 18 A court of equity will entertain an action to affirm a com mon law marriage under the provisions of this section, but the proofs must clearly show -an agreement between the par ties presently to take eacli other as husband and wife, and such agreement must "be followed by cohabitation in the re- 16. Webb v. Wayne Circuit 139 Mich. 479. 102 N. W. 989; Judge, 144 Mich. 674, 108 N. W. Cole v. Cole, 5 Sneedi (Miss) 59; 358; Goldsmith v. Goldsmith, 6 Powell v. Powell, 27 Miss. 783; Mich. 285; Ross v. Ross, 47 Mich. Slais v. Slais, 9 Mo. App. 97; 185. 10| N. W. 193; Haines v. Kern v. Kern, 51 N. J. Eq. 582. Haines, 35 Mich. 138; Story v. 18. C. L. 1915, (11395); How- Story, Walk. Ch. 421. ell. 2nd. Ed.. 11456. 17. VanHaaften v. VanHaaften, 197 282 DIVORCE AND ANNULMENT lation of husband and wife, or no decree affirming such mar- riage will be granted. 19 282. Sentence to Imprisonment for Life. "When either party shall be sentenced to imprisonment for life in any prison, jail or house of correction, the marriage shall be thereby absolutely dissolved, without any decree of divorce or other legal process, and no pardon granted to the party so sentenced shall restore such party to his or her con- jugal rights." 20 19. Judson v. Judson, 147 mer v. Lorimer, 124 Mich. , 631. Mich. 518, 11 N. W. 78; Hutchins 20. C. L. 1915, (11396); How- v. Kimmell, 31 Mich. 126; Lori- ell, 2nd. Ed., 11457. < 'II APT Kit XXIV. AIMM i:K'V AS A CAUSE FOB DIVORCE. 283. Adultery. 284. Bill of Complaint. 285. Disposition and Opportunity. 286. Professional Calls. 287. Facts from which Adultery may be Inferred. 288. Facts not Sufficient to Establish Adultery. 289. Character of Witnesses to Prove Adultery Particeps Criminis Prostitutes and Procurers Detectives. 290. Prostitutes and Procurers Detectives. 283. Adultery. An absolute divorce from the bonds of matrimony may be decreed by the circuit court in chancery of the county where the parties or one of them reside, on the application by peti- tion or bill of the aggrieved party, whenever adultery has been committed by either party to the marriage. 1 In an action for divorce on the ground of adultery, there should be required a strict adherence to settled practice and to all of the requirements of the statute. It is easy to bring such a charge, and in many cases to support it by evidence of circumstances perfectly innocent in themselves when fully explained, and vet capable of presenting a suspicious ap- pearance, and parties so often resort to it with full knowl- edge of its unfounded nature, relying upon being able to pre- sent a plausible showing which the accused party may be unable to disprove fully, that the court should always require ;i strict adherence to the rules of practice, and should deny relief unless I)M- guilt of the accused party is clearly estab- lished. 2 284. Bill of Complaint. The time, place ami circumstances or occasion of the act charged, and the name of the guilty participator, if known. 1. C. L. 1915. (11397); Howell. 2. Green v. Green, 26 Mich. 2nd. Ed., 11458. 437. 5284 ADULTERY AS A CAUSE must be set forth definitely, and with reasonable particularity and distinctness. 3 An allegation that the defendant lived in open and notorious adultery, stating the time, place, and with whom, is sufficient. 4 The bill must be sworn to, and any amendments made to it must also be sworn to in the same. manner as the original bill. 5 Proof of facts which are not alleged in the bill cannot be made available. 6 The adultery charged therein must be proved by competent evidence, and not by scandal merely, nor by reputation alone. While reputation is not sufficient, it may be received in aid of, and as incident; to, substantive proof. 7 Proof of adulterous acts not alleged cannot avail and in fact ought not to be allowed to be proved. 8 It i^jiot necessary that there shall be absolute direct evi- dence of the fact. The charge may be proved by circumstan- tial evidence the same as any other fact. There may be no direct proof of any single fact sufficient to afford a conclusive inference, but if when all the circumstances are combined, and the natural inferences and presumptions allowed their due weight, the proof so presses and convinces that is difficult to reject belief, it is sufficient. 9 It will be presumed that licentious persons, holding and expressing loose and depraved notions in regard to the marriage relation, will commit such offenses as they have opportunity fdr, when consorting to- gether. 10 But where adultery is sought to be made out by proof of freedom of manners, unchastity should not be inferred from lack of refinement, if the conduct of the party accused is not such as to offend the general sentiment among the class of people with whom the parties habituallv associate. The law does not require a higher standard of behavior than that 3. Dunn v. Dunn, 11 Mich. 284; Shoemaker v. Shoemaker, 20 Mich. 222; Bennett v. Bennett, 24 Mich. 482; Green v. Green, 26 Mich. 437; Randall v. Randall, 31 Mich. 194; Herrick v. Herrick, 31 Mich. 298. 4. Marble v. Marble, 36 Mich. 386. 5. Green v. Green, 26 Mich. 437; Briggs v. Briggs, 20 Mich. 40. 6. Green v. Green, 26 Mich. 437. 7. Soper v. Soper, 29 Mich. 305; Marble v. Marble, 36 Mich. 386. 8. Dunn v. Dunn, 11 Mich. 284; Shoemaker v. Shoemaker, 20 Mich. 222; Bennett v. Bennett, 24 Mich. 482; Randall v. Randall, 31 Mich. 194; Herrick v. Herrick, 31 Mich. 298. 9. Marble v. Marble, 36 Mich. 386. 10. McClung v. McClung, 40 Mich. 493. 200 DISPOSITION AND OPPORTUNITY 285 which virtuous people in the same position accept for them- selves ;iml their associates. 11 A ]Mirtici'i>x crhninix may lie a competent witness for a plaintiff in an action for divorce on the ground of adultery. but the testimony of such witness should be supported ly some corroborating evidence. 12 A divorce for adultery should not be granted on the unsupported evidence of one who swears to open and shameless conduct between himself and the de- fendaut, and whose cross-examination shows him to be guilty of manifest falsehood under oath in material particulars, and whom the witnesses brought to corroborate him rather con- tradict than confirm. 13 It is improper to call children of the parties of tender age to testify to facts tending to show want of chastity of their parents, and a divorce will not be granted where the case de- pends on such testimony. Such a course is not only a great wrong in young children, as it touches them in their natural affections, but it also tends to destroy their purity of mind and conduct, and leads them into depraved notions. 11 In an action for divorce on the ground of adultery, the time when the plaintiff first discovered or had knowledge of the fact should be shown, and also whether there has been a con- donation by voluntary cohabitation since. 15 285. Disposition and Opportunity. It is always competent, in an action for divorte on tin- ground of adultery, to prove an adulterous disposition on the part of the defendant and the alleged paramour, and where such adulterous disposition or inclination is shown, and it also appears that at the time and place alleged there was an opportunity for them to commit the offense, such facts a in- sufficient to establish adultery. 16 But an adulterous disposition is not necessarily established by the existence of undue familiarity between the accuse- 1 parties, and proof . of opportunity alone, in the absence of i 11. Bishop v. Bishop, 17 Mich. 15. Emnions v. Eramons, Walk- 211. er's Ch. 532. 12. Emmons v. Emmons, Walk- 16. 14 Cyc. 694; Blake v. er's Ch. 532. Blake, 70 111. 618; Inskeep v. 13. Herrick v. Herrick, 31, Inseepk, 5 Iowa 204; McClung v. Mich. 298. McClung, 40 Mich. 493; Black >. 14. Kneale v. Kneale, 28 Mich. Black, 30 N. J. Eq. 228; Freeman 344; Crowner v. Crowner, 44 v. Freeman, 31 Wis. 235. Mich. 180, 6 N. W. 198. 201 28C ADULTERY A8 A CAUSE proof of adulterous inclination, does not establish adultery. 17 286. Professional Calls. A charge of adultery is not sustained against a wife upon evidence that she had placed herself in the hands of an ir- regular physician, for treatment for some female difficulty, and that on several days a physical examination was made by him in a room with the door bolted. 18 Nor will adultery readily be inferred from familiarity and improper conduct with near relations; 19 nor is evidence of frequent private interviews with a clergyman sufficient to establish adultery. 20 287. Facts from which Adultery may be Inferred. It is not necessary that there should be direct proof of sexual intercourse to establish the fact of adultery. The fact may be inferred from proof of such conduct as would lead to the conclusion that the offense had actually been committed. Adultery may be established by the fact that the parties occu- pied the same room at night, 21 or the same bed, 22 but the in- criminating circumstances may be explained. 23 Frequent visits at a house of ill-fame, in the absence of explanation consistent with innocence, is sufficient to estab- lish the fact of adultery. 24 Adultery may also be established by proof of pregnancy of a wife under circumstances pre- cluding the possibility of the husband being the author of her pregnancy; but the husbcand is presumed to be the father of the child if he had access to his wife during the required period. 25 Proof of a subsequent bigamous marriage is not sufficient without proof of cohabitation. 26 It is priina facie evidence of adultery that a husband, long, after marriage, is afflicted Vith a venereal disease. 27 17. Osborne v. Osborne, 44 N. v. Shufield, 86 Md. 519, 39 Atl. J. Eq. 257, 9 Atl. 698; Blake v. 416. .Blake, 70 111. 618; Burk v. Burk, 23. Cave v. Cave, 39 N. J. Eq. Kan. 307. k 148. 18. Stuart v. Stuart, 47 Mich. 24. Mosser v. Mosser, 29 Ala. 566, 11 N. W. 388. 313; Peavey v. Peavey, 76 Iowa, 19. Peavey v. Peavey, 76 Iowa 443, 41 N. W. 67. 443, 41 N. W. 67. 25. Cross v. Cross, 3 Paige (N. 20. Freeman v. Freeman, 31 Y.) 139, 23 Am. Dec. 778. Wis. 235. 26. Clapp v. Clapp, 97 Mass. 21. Names v. Names, 67 Iowa 531. 383, 25 N. W. 671. 27. Johnson v. Johnson, 18 22. Fischer v. Fischer, 131 Wend. (N. Y.) 637. Mich. 441, 91 N. W. 633; Shufield 202 IIAIi.VCTKK OF WITNESSES 289 288. Facts not Sufficient to Establish Adultery. A man will iiot be presumed to have committed adultery while his wife and child were in the same bed with him. 28 Adultery will not be presumed from the fact of a female ser- vant remaining in a room with the defendant at night, where the evidence satisfactorily shows that she was the only ser- vant about the house, and that her services were required for the purpose of adjusting poultices on an eruption for which ho was undergoing treatment. 29 A visit to a house of ill fame may be explained by evi- dence showing that it was made through ignorance or mis- take as to the character of the house, or because of the fraudu- lent inducement of the plaintiff or his agents. 80 The inference of guilt is stronger where a married woman enters a house of ill fame, with knowledge of its character, with a man not her husband. 31 But the fact that the defendant and her house are of ill repute is not of itself sufficient to entitle the plain- tiff to a divorce on the ground of adultery. 32 289. Character of Witnesses to Prove Adultery Particeps Criminis. Prostitutes and Procurers Detectives. In an action for divorce on the ground of adultery, the alleged paramour of the defendant is a competent witness to prove the fact of adultery, 33 but such testimony is liable to grave suspicion, and should be acted upon with extreme cau- tion. 84 Ordinarily, unless such testimony is corroborated, it is not sufficient to authorize a decree of divorce. 85 It has been held, however, that the requirement as to corroborntion 28. Rickard v. Rickard, 9 Ore. ing that if no other evidence is 168. obtainable it should be consider- 29. Peavey v. Peavey, 76 Iowa ed at its true worth, in connec- 443, 41 N. W. 67. tion with all the other circum- 30. Cave v. Cave, 39 N. J. Eq. stances. 148; Latham v. Latham, 30 34. Whale v. Whale, 71 111. Gratt. (Va.) 307. 510; Lewis v. Lewis, 9 Ind. 105; 31. Stackhouse v. Stackhouse, Herrick v. Herrick, 31 Mich. 298. 36 Atl. (N. J.) 884; Matchin v. 35. Payne v. Payne, 42 Ark. Matchin, 6 Pa. St. 332, 47 Am. 235; Evans v. Evans, 93 Ky. 510, Dec. 466. 20 S. W. 605; Herrick v. Herrick, 32. Miller v. Miller, 20 N. J. 31 Mich. 298; Bishop v. Bishop, Eq. 216. 17 Mich. 211; Emmons v. Em- 33. Moulton v. Moalton, 13 mons. Walker's Ch. 532; Hedden Me. 110; Mayer v. Mayer, 21 N. v. Hedden, 21 N. J. Eq. 61; Cline J. Eq. 246; Moller v. Moller, 115 v. Cline, 16 Pac. 282; Simons v. N. Y. 466, 22 N. E. 169; all hold- Simons, 13 Tex. 468. 203 290 ADULTERY AS A ' CAUSE is rather a rule of precaution on the part of the court than an arbitrary rule of law. It appears to be founded mainly upon the inability of the party charged with adultery to contra- dict the testimony of the alleged paramour, because of the common law incompetency of husband and wife to testify in actions for divorce. Where by statute either spouse may be a witness against the other in divorce cases, the force of the reason requiring corroboration is materially weakened, and the sufficiency of the alleged paramour's testimony must de- pend mainly upon the degree of credibility the judge or jury trying the case see fit to give it. 36 The rule requiring cor- roboration does not apply where he denies the alleged crimi- nal act. 37 The facts and circumstances relied on to corrobo- rate him, where he testifies on behalf of the plaintiff, must be material, and such as have a tendency to prove that the adultery was in fact committed. 38 290. Prostitutes and Procurers Detectives. Prostitutes and persons who procure adultery to be com- mitted are competent witnesses to the fact of adultery, but their testimony should be received with great caution, and should be fully corroborated. 39 Detectives or other persons employed for hire, to watch and detect a husband or wife suspected of adultery, are compe- tent witnesses. Their testimony should not be absolutely re- jected because of the fact of their employment for that pur- pose, but the court should scrutinize it carefully and receive it with great caution. Ordinarily such testimony should be corroborated, either by the facts and circumstances in evi- dence, or by the direct testimony of other witnesses, or by both. 40 The reason for the rule seems to be that when a man 36. Steffens v. Steffens, 16 235, 38 N. E. 288; Moller v. Mol- Daly, (N. Y.) 366, 11 N. Y. Supp. ler, 115 N. Y. 466, 22 N. E. 169. 424. 40. Dennis v. Dennis, 68 Conn. 37. Pollock v. Pollock, 71 N. 186, 36 Atl. 34, 57 Am. St. R. Y. 137; Crary v. Crary, 18 N. Y. 95, 34 L. R. A. 449; Blake .v. Supp. 753. Blake, 70 111. 618; Van Voorhis 38. Groger v. Groger (N. J.), v. Van Voorhis, 94 Mich. 60, 53 45 Atl. 349. N. W. 964; Pullen v. Pullen, 46 39. Paul v. Paul, 37 N. J. Eq. N. J. Eq. 318, 20 Atl. 393; Hurt- 23; Waggoner v. Waggoner (Md.), zig v. Hurtzig, 44 N. J. Eq. 329, 10 Atl. 221; Clare v. Clare, 19 N. 15 Atl. 537; Cave v. Cave, 39 N. J. Eq. 37; Winston v. Winston, J. Eq. 148; Cline v. Cline (Of eg.), 165 N. Y. 553, 59 N. E. 273; Me- 16 Pac. 282; Engelman v. Engle- Carthy v. McCarthy, 143 N. Y. man, 97 Va. 487, 34 S. E. 50; 204 TiTi TI:S AMI n:ort I;I:K> ^J>0 sets himself up as a hired ! SK.MAI. 1 NTKK '< > I 313. Refusal to Follow Husband, i The general rule is that the husband has the Legal right to select and tix the family home and place of domicile, as he is considered the head and support of the family. If he removes to another state or locality, and there provides a reasonable home, suitable to their station in life, and the wife, without reasonable cause, refuses to follow or go with him. without legal cause, she is guilty of such desertion as will entitle him to a divorce, after such refusal has continued for the statutory period. 25 $314. Desertion not Excused by Continuing Support. Where n husband intentionally and against his wife's con- sent has abandoned all matrimonial intercourse and compan- ionship with her for the statutory period, and. denied her the protection of his home, she is entitled to a decree of divorce, even although during such period he has regularly contributed money, and from time to time necessaries, toward supporting the wife and their children. 26 315. Refusal of Sexual Intercourse. In some of the states the refusal of sexual intercourse is considered as constituting desertion where there is no jusi or reasonable cause for such refusal. 27 In other states it has been held that such refusal does not constitute such desertion as will authorize a decree of divorce on that ground alone. 28 26. Kennedy v. Kennedy, 87 st&n's Appeal, 93 Pa. St. 133. Ill: 250; Babbitt v. Babbitt, 69 111. 27. Whitfield v. Whitfield, 89 277; Walker v. Leighton, 31 N. Ga. 471, 15 S. E. 543. H. Ill; Hunt v. Hunt, 20 N. J. 28 . Stewart v. Stewart, 78 Me. Eq. 96; Hair v. Hair, 10 Rich. Eq. 548> 57 Am> R . 82 2; Cowles v. (S. C.) 163. Cowles, 112 Mass. 298; Southwick 26. Magrath v. Magrath, 108 v. Southwick, 97 Mass. 327, 93 Mass. 577, 4 Am. R. 579; Sargent Am. Dec. 95; Schoesson v. Schoes- v. Sargent, 36 N. J. Eq. 644; Ral- son, 83 Wis. 553, 53 N. W. 856. 217 CHAPTER XXVIII. HABITUAL DRUNKENNESS AS A CAUSE FOR DIVORCE. , A 316. Habitual Drunkenness. 317. Definition. 318. Constant and Continuous Drunkenness. 319. Use of Opiates. 320. Period of Indulgence. 321. Antenuptial Habit. 322. Condonation. 316. Habitual Drunkenness. The Michigan statute, as well as the statutes of many other states, provides that a divorce from the bonds of matrimony may be decreed when the husband ojr wife shall have become an habitual drunkard. 1 In many of the states, the term used- in the statute is "habitual intemperance" for a certain period; in others the term used in the statute is "habitual drunkenness," and in still others the cause for divorce is expressed as "habitual drunkenness" or "habitual intemperance" of the husband. 2 317. Definition. A precise definition of the term habitual drunkard, which will cover all cases which come before the courts, is somewhat difficult to frame. The language of the Michigan statute is: "When the husband or wife has become an- habitual drunk- ard." One who has the drink habit so firmly fixed upon him that he gets drunk as often as he goes where liquor is sold, is unquestionably an habitual drunkard within the meaning of the statute. While habitual drunkenness or intemperance caused by the voluntary and excessive use of alcoholic liquors is a ground for divorce in nearly all the states, it is generally held that a divorce will not be granted on the ground of drunkenness or intemperance unless it is shown that such drunkenness or in- 1. C. L. 1915, (11397) ; Howell, 2. See Part 3, Chapter XXII. 2nd. Ed., 11458, Sub. 5. 218 I Si: nr ol-lATKS temperance is habitual. Il is generally held Hint the per- sistent habit of becoming,' grossly intoxicated constitutes the offense of habitual drunkenness within the meaning of the divorce laws of the several states where that offense is made grgnnd for divorce. 4 318. Constant and Continuous Drunkenness. It is not necessary to show constant and continuous drunk- enness to make out. the offense within the meaning of the statute.- Nor is occasional indulgence in intoxicating -liquors sufficient to establish a charge of habitual drunkenness or habitual intemperance. 6 It is not necessary that the habit shall render the party at all times incapable of attending to business, but it is sufficient if it disqualifies him from attend- in jr to his business during the principal portion of the time usually devoted to business. 7 319. Use of Opiates. The intoxication or drunkenness meant by the statute, un- less otherwise expressed, is that produced by the excessive use of alcoholic liquors, and not by excessive use of opiates." In some of the states, however, gross and confirmed drunkenness. 3. Magahay v. Magahay, 35 Meathe, 83 Mich. 150, 47 N. W. Mich. 210; Brown v. Brown, 38 109; Ishler v. Ishler, 81 Mo. App. Ark. 324; McGill v. McGill, 19 567. Fla. 341; Batchelder v. Batch- 6. Myrick v. Myrick, 67 Ga. elder, 14 N. H. 380; Myrick v. 771; Bizer v. Bizer, 110 Iowa 248, Myrick, 67 Ga. 7*71. 81 N. W. 465; Meathe v. Meathe. 4. McGill v. McGill, 14 Fla. 83 Mich. 150, 47 N. W. 109; Mc- 341; Myrick v. Myrick, 67 Ga. Bee v. McBee, 22 Ore. 329, 29 Pac. 771: Youngs v. Youngs, 13 111. 887, 29 Am. St. R. 613, holding 230, 22 N. E 806, 17 Am. St. R. tnat where the defendant drank 313, 6 L. R. A. 548; Richards v. to excess only when he went to Richards, 19 111. App. 465; Wai- town from nis farm, which did ton v. Walton, 34 Kan. 195, 8 Pac. not average more than twice a 110; Williams v. Goss, 43 La, Am. month, and he was never dis- 868, 9 So. 750; Blaney v. Blaney, qualified from doing his work, it 126 Mass. 205; Magahay v. Ma- was not habitual gross drunken- gahay.. 35 Mich. 210; Golding v. ness. Golding, 6 Mo. App. 602; McBee 7. Mahone v. Mahono, 19 Cal. v. McBee, 22 Ore. 329, 29 Pac. 626, 81 Am. Dec. 91. 887, 29 Am. St. 613; Gourley v. 8 Youngs v. Youngs, 130 111. Gourley, 16 R. I. 705, 19 All. 142. 2 30. 22 N. E. 806, 17 Am. St. R. 5. Fuller v. Fuller, 108 Ga. 313, 6 L. R. A. 548; Dawson v. 256, 33 S. E. 865; Meathe v. Dawson, 23 Mo. App. 169. 219 320 HABITUAL DRUNKENNESS caused by the voluntary and excessive use of opium or other drugs, is a /ground for divorce. 9 320. Period of Indulgence. In many of the states the statute prescribes the period dur- ing which the habit must continue in order to make it a ground for divorce. Where the statute so provides, it must be shown that the habit has continued up to the time of filing the bill of complaint. 10 321. Antenuptial Habit. Where the habit was contracted before the marriage, and ex- isted at the time of the marriage, it is not ordinarily a ground for divorce. 11 And in all cases where the plaintiff had knowl- edge of the obnoxious habit prior to the marriage, and entered into the marriage with full knowledge that it still existed, such knowledge will be a bar to a suit for divorce. 12 322. Condonation. The matrimonial offense of habitual drunkenness may be condoned the same as any other ground of divorce. What will amount to a condonation, however, must depend upon the par- ticular circumstances of each case. In general, condonation within the meaning of divorce laws may be said to be forgive- ness of an antecedent matrimonial offense, which otherwise would be ground for divorce, on condition that it shall not be repeated, and that the offender shall thereafter treat the in- jured party with conjugal kindness! 13 Where the offense has once -been condoned there can be no divorce so long as the offender complies with the condition, but a repetition of the offense, after forgiveness, works a re- vival of the original ground for divorce. 14 The subject of condonation will be further considered under the title of actions for divorce. 9. Burt v. Burt, 168 Mass. 204, ~990, 42 S. E. 374; Heinzman v. 46 N. E. 622. Heinzman, 15 Pa. Co. Court, 669; 10. Reynolds v. Reynolds, 44 Tilton v. Tilton, 29 S. W. 290; Minn. 132, 46 N. W. 236; Burt Smith v. Smith, 53 S. W. 1000. v. Burt, 168 Mass. 204, 46 N. E. 13. Turnbull v. Turnbull, 23 622. Ark. 615; Sharp v. Sharp, 116 111. 11. Lyster v. Lyster, 111 Mass. 509, 6 N. E. 15. 327; Porritt v. Porritt, 16 Mich. 14. Odom v. Odom, 36 Ga. 285; 140. Farnham v. Farnham, 37 111. 497. 12. Stanley v. Stanley, 115 Ga. 220 CHAPTER XXIX. T< UIKIGN DIVORCES. 323. Divorce Obtained in Another State. 324. Foreign Divorce. 325. Jurisdiction Residence of Parties. 326. Jurisdiction Continued Conflict of Laws. 323. Divorce Obtained in Another State. In Michigan the courts may iu their discretion grant a di- vorce from the bonds of matrimony to any party who is a resi- dent of the state, whoso husband or wife shall have obtained a divorce in any other state. 1 324. Foreign Divorce. A decree of divorce obtained by one party in another state against the other party residing in this state, furnishes a ground for divorce to the latter, whether the decree in the other state is valid, void or voidable. 2 Where a defendant filed a cross bill alleging a prior divorce from plaintiff procured by him in another state, it was held that such foreign divorce could not be pleaded as a bar to the action, since such divorce itself constitutes a ground of divorce to a plaintiff residing in this state. 8 325. Jurisdiction Residence of Parties. The complainant must have been domiciled in this state, in good faith, for tin- siatutory period before commencing; the action, ami a wife may acquire such a domicile, separate from that of her husband. It appears to be the general rule, that to give the courts of any state jurisdiction over the marriage relation between hus- 1. C. L. 1915, (11397); Sub. 6; 180. Howell, 2nd. Ed. 11458. 3. Van Inwagen v. Van Inwa- 2. Wright v. Wright, 24 Mich. gen, -86 Mich. 333, 49 N. W. 154. 221 326 FOREIGN DIVORCES r band and wife, one of the parties, at least, must have a dom- icile within that state. Some of the statutes and judicial de- cisions make further requirements, but no court has held that any less could be demanded. 4 The provision of the Federal constitution which requires full faith and credit to be given in every state to the records and judicial proceedings of the other states does not extend to the giving of validity to proceedings which are, in themselves, mere nullities. It is implied in judicial proceedings that the court assuming to act and to render judgment should have had competent authority to do so in the particular case; and, when this authority is wanting, whatever is done is not judicial. 5 And even where the record, by its recitals, makes a prima facie case of jurisdiction, no one in another state or country is precluded thereby, but he may show what the real fact was, and thus disprove the authority for making such a record. 8 326. Jurisdiction Continued Conflict of Laws. Courts of chancery in Michigan have no jurisdiction in di- vorce proceedings beyond what has been conferred by statute. Where, on granting to the wife a divorce in another state, children are taken from the parental control of the father, and their care and custody given to the mother, she cannot main- tain an action in this state, by proceedings supplemental to 4. People v. Dawell, 25 Mich. 36; Shumway f. Stillman, 4 254, in which it is also held that Conn. 292, 15 Am. Dec. 374; the recitals in the record of a Thompson v. Emmert, 15 111. 416; divorce case, that the parties are Marx v. Fore, 51 M6. 69, 11 Am. residents of the state where the R. 432; Reel v. Elder, 62 Pa. St. suit is instituted, do not preclude 308, 1 Am. R. 414; Penny wit v. the showing, in another state, Foote, 27 Ohio St. 600, 22 Am. where the divorce comes collater- R. 340; Oilman v. Gilman, 126 ally in question, that the parties Mass. 26, 30 Am. R. 646; Bowler never resided in said first men- v. Hurton, 32 Am. R. 673; Eaton tioned state, and that the suit v. Hasty, 6 Neb. 419, 29 Am. R. was fraudulent and collusive. 365; People v. Dawell, 25 Mich. 5. Reed v. Reed, 52 Mich. 117, 247, 12 Am. R. 260; Reed v. Reed, 17 N. W. 720. 52 Mich. 117, 17 N. W. 720; Bear 6. Thompson v. Whitman, 18 v. Heasley, 98 Mich. 279, 315, 57 Wall. (U. S.) 457, 21 L. Ed. 897; N. W. 270; Wright v. Wright, 24 Knowles v. Gas Light Co., 19 Mich. 180; McEwan v. Zimmer, Wall. 58, 22 L. Ed. 70; Bartlett 38 Mich. 765. v. Knight, 1 Mass. 401, 2 Am? Dec. 222 CONFLICT <>K LAWS 326 i IK- derive obtained in n foreign si;itc. to compel the father to support the children, for the reason that the statute of this >i;ile gives its courts no. such authority. 7 7. Judson v. Judson, 171 Mich. Eldred, 62 Neb. 613, 87 N. W. 185, 137 N. W. 103; 'Peltier v. 340; Baugh v. Baugh, 37 Mich. Peltier, Har. Ch. 19; Perkins v. 61; Haines v. Haines, 35 Mich. Perkins, IS Mich. 167; Wright v. 145. Wright, 24 Mich. 180, Eldred v. 223 CHAPTER XXX. DIVORCE FROM BED AND BOARD. 327. When may be Decreed. 328. When Absolute Divorce Granted. 329. Purpose of the Statute. 330. Effect of the Amendment. 331. Extreme Cruelty. 332. Evidence to Establish Extreme Cruelty. 333. Acts Constituting Extreme Cruelty. 334. Acts not Extreme Cruelty. 335. Condonation of Extreme Cruelty. 335a. Refusal of the Husband to Support the Wife. 327. When may be Decreed. The statute of Michigan provides that "a divorce from bed and board forever, or for a limited time, mar be decreed for the ground of extreme cruelty, whether practiced by using personal violence or by any other means; or for utter deser- tion by either of the parties for the term of two years ; and a like divorce may be decreed on the complaint of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, shall grossly or wantonly and cruelly refuse or neglect to do so." 1 It will be noticed that this section authorizes divorce from bed and board, or limited divorce, for three specified causes, one of which, desertion, is made ground for absolute divorce by the preceding section. 2 328. When Absolute Divorce Granted. The same statute also provides that "a divorce from the^ bonds of matrimony may be decreed for either of the causes mentioned in the preceding section whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do; but no divorce from the bonds of matrimony for either of the causes mentioned in 1. C. L. 1915, (11398); Howell, 2. C. L. 1915, (11397); Sub. 4; 2nd. Ed., 11459. Howell. 2nd. Ed., 11458. 224 EFFECT OF THE AMENDMENT 330 the preceding section shall be entered in any case where the same is not asked for by the complainant in the bill of com- plaint tiled therein or by the defendant on a cross bill, unless the court hearing the evidence shall deem it for the best inter- est of the parlies to "Taut a divorce from the bonds of matri- mony, and in that event the court may grant such divorce." 8 329. Purpose of the Statute. This statute, authorizing the courts to grant a decree of absolute divorce for any of the causes mentioned in the pre- ceding section whenever in the opinion of the court it will be discreet and proper to do so. provides for such decree, not to meet the desire of the parties, but on grounds of public policy, to prevent the mischiefs arising from turning out into the world, in enforced celibacy, persons who are neither married nor unmarried. 4 And in such a case it has been ruled that the court may decree an absolute divorce, although the com- plainant asks for a decree of separation only. 8 Since the decision announcing the foregoing rules, the legis- lature has amended Section 8622 of the Compiled Laws of 1897, by adding thereto the following : "But no divorce from the bonds of matrimony for either of the causes mentioned in the preceding section shall be entered in any case where the same is not asked for in the bill of complaint filed therein, or by the defendant on a cross bill, unless the court hearing the evidence shall deem it for the best interest of the parties to grant a divorce from the bonds of matrimony, and in that event the court may grant such divorce." 6 This amendment was ordered to take immediate effect, and was approved by the governor on June 28, 1907. 330. Affect of the Amendment. This amendment, while it prohibits the courts from grant- ing decrees of absolute divorce for the causes mentioned, un- less the same is asked for in the complainant's bill or by a cross-bill of the defendant, still authorizes such decree "where the court hearing the evidence shall deem it for the best in- 3. C. L. 1916, (11399); Howell, Mich. 674, 71 N. W. 487, Moore 2nd. Ed., 11460. J. dissenting. 4. Burlage v. Burlage. 65 Mich. 6. P. A. 1907, No. 324; Howell, 624, 32 N. W. 866. 2nd. Ed., 11460; C. L. 1915, 5. Sullivan v. Sullivan, 112 (11399). 225 331 DIVORCE PROM BED AND BOARD terest of the parties to grant a divorce from the bonds of matrimony." It seems still to leave a certain discretion with the court relative to granting an absolute divorce, when not asked for by either party, but requires that discretion to be exercised with a view to the best interests of the parties, instead of on considerations of public policy, regardless of the desires of the parties to the action. It does not deprive either the circuit court or the Supreme Court of the discretion to grant an abso- lute divorce on the grounds mentioned* even where neither of the parties ask for such decree, and desire only a limited di- vorce. The form of decree which should be made in such cases still rests in the sound discretion of the circuit court in the first instance, and, upon appeal, in the sound discretion of the Supreme Court. 7 And we think it may safely be said that it is still the settled policy of the courts of this state to grant de- crees of absolute divorce, where the complainant asks for a limited divorce only, if the circumstances of the case are such that public policy or the interests of the parties and the public will be better protected than by a limited divorce. 8 33 1 . Extreme Cruelty. Extreme cruelty as a ground for divorce may embrace a good many different acts, and the term is somewhat elastic. What may amount to such cruelty as would constitute good cause for a divorce in one case may be entirely insufficient in another. Those acts, or that conduct and language, which in some conditions of life would pass as ordinary incidents of the marriage relation, might constitute in other social phases the very refinement of cruelty. 9 It .is not essential that the misconduct charged as extreme cruelty should be of a criminal character, or suqh as the guilty party cau be prosecuted for in the criminal courts, but it is sufficient if the acts are such as are calculated to destroy the plaintiff's happiness, and have that effect. 10 When alleged 7. Horning v. Horning, 162 258, 118 N. W. 932; Horning v. Mich. 130, 127 N. W. 275; Coon v. Horning, 162 Mich. 130, 127 N. Coon, 163 Mich. 644, 129 N. W. W. 275; Coon v. Coon, 163 Mich. 12. 644, 129 N. W. 12. 8. Burlage v. Burlage, 65 Mich. 9. Hall v. Hall, 172 Mich. 210, 624, 32 N. W. 866; Sullivan v. 13Z N. W. 536. Sullivan, 112 Mich. 674, 71 N. W. 10. Bearinger v. Bearinger, 487; Utley v. Utley, 155 Mich. 170 Mich. 661, 136 N. W. 1117. 226 ACTS CONST rr i TIM; EXTREME CRUELTY 333 as a cause for divorce, it must be shown to be of such an ag- gravating character as to subvert the family relations by ren- dering llie association intolerable. 11 332. Evidence to Establish Extreme Cruelty. The evidence to establish extreme cruelty, sufficient to authorize a decree of divorce for that cause, must relate to the specific acts charged in the lull of complaint. A decree of divorce cannot be sustained on the ground of extreme cruelty upon evidence of acts or conduct not set up in the bill. And if the bill alleges extreme cruelty in general terms only, with- out setting up any particular acts or conduct, no proof of cruelty can be introduced. 12 But where the specific acts of cruelty relied upon are suffi- ciently set forth in the bill, the evidence is not necessarily con- fined to those acts, hut whatever will serve to explain or give character to them may he shown. Acts of personal violence even, when intrinsically and separately considered, may not amount to such a degree of cruelty as to justify a divorce, yet when attended by such habitual cruel behavior as to amount to an outrage upon the sense of decency and propriety of the one affected by it, a case of extreme cruelty is made out. 13 333. Acts Constituting Extreme Cruelty. A long and continuous course of conduct by one of the parties toward the other, without the fault of the other, which results in making the matrimonial relation unendurable and in driving the latter from the home of the offender, is such ex- treme cruelty as the statute contemplates as just ground for a divorce from bed and board, and, in the discretion of the court, for an absolute divorce. 14 So the persistent circulation of false and slanderous reports by a husband, derogatory to his wife's chastity, especially when the wife is of a refined and sensitive nature, will author- ize a decree of divorce, either limited or absolute. 1 ' 1 The persistent, wilful, and habitual conduct of a wife to- ll. Cooper v. Cooper, 17 Mich. 13. Briggs v. Briggs, 20 Mich. 210; Chaffee v. Chaffee, 16 Mich. 34. 184. 14. Briggs v. Briggs, 20 Mich. 12. Bennett v. Bennett, 24 45, 46. Mich. 482; Dashback v. Dash- 15. Goodman v. Goodman. 26 back, 62 Mich. 322, 28 N. W. 812. Mich. 417. 227 DIVORCE FROM BED AND HOARD ward her husband in an offensive and opprobrious manner, ac- cusing him in public and private of infamous conduct in viola- tion of his marriage duties, and calling him vile and vulgar names, may amount to such extreme cruelty as will justify a divorce. 16 Consorting with persons of loose morals, or lascivious in- clinations toward the opposite sex, and showing or expressing a preference for them, may be such extreme cruelty toward the injured spouse as will justify a decree of divorce. 17 The communication of a venereal disease 18 is extreme cruelty, and will justify a decree of divorce, either limited or absolute; but the fact that a wife of unimpeached character is found to have such a disease is not of itself sufficient evidence that it was communicated to her by her husband. 19 Among other acts constituting extreme cruelty within the meaning of the statute may be enumerated personal vio- lence; 20 abusive epithets and blows; 21 violence and threats of injury; 22 fault finding, nagging, profanity, abuse and violent conduct; 23 compelling a wife to submit to an abortion; 24 abu- sive epithets applied by the wife, and refusal to prepare meals ; 25 unreasonably and persistently prejudicing children against their mother; 26 unreasonable refusal of intercourse by the wife; 27 persistently addressing the wife in brutal language, 28 accusing her of adultery, perjury and fraud; 29 profane, ob- scene and insulting language, habitually indulged in towards a wife of refined feelings and sensitive nature; 30 accusations against the wife of immoral or unchaste conduct; 31 calling 16. Whitmore v. Whitmore, 49 24. Dunn v. Dunn, 150 Mich. Mich. 417, 13 N. W. R. 769. 476, 114 N. W. 385. 17. McClung "v. McClung, 40 25. Begrow v. Begrow, 162 Mich. 493. Mich. 349, 127 N. W. 256. 18. Canfield v. Canfield, 34 26. McDuffee v. McDuffee, 169 Mich. 519; Holthoefer v. Hoi- Mich. 410, 135 N. W. N 242. thoefer, 47 Mich. 260, 11 N. W. 27. Case v. Case, 159 Mich. 150. 491, 122 N. W. 538. 19. Holthoefer v. Holthoefer, 28. Hoyt v. Hoyt, 56 Mich. 50 47 Mich. 260, 11 N. W. R. 150. 22 N. W. 105. 20. Austin v. Austin, 172 Mich. 29. Walsh v. Walsh, 61 Mich. 620, 138 N. W. 215. 554, 28 N. W. 718. 21. Murray v. Murray, 169 30. Bennett v. Bennett, 24 Mich. 388, 135 N. W. 262. Mich. 484-485; Palmer v. Palmer, 22. Utley v. Utley, 155 Mich. 45 Mich. 150, 7 N. W. 760. 258, 118 N. W. 932. 31. Kraft v. Kraft, 160 Mich. 23. Jarstfer v. Jarstfer, 162 654, 125 N. W. 693. Mich. 196, 127 N. W. 24. 228 ACTS NOT i:\TKK.MK CIMKI.TY 334 vile names and persistently and without cause charging dis- honesty and infidelity; 3 - wife calling husband -opprobrious names, accusations of immorality, and unreasonable refusal of cohabitation. 33 While the acts and conduct mentioned in this section have been adjudicated to be such extreme cruelty as will justify a decree of divorce under the circumstances as shown, it should be borne in mind that as a general rule each case must be gov- erned by its own peculiar circumstances. It may be stated, however, that if such conduct, whether by the husband or wife, is without cause or excuse, and is persisted in until it be- comes unbearable and unendurable by the innocent party, a decree of divorce should be granted ; and in the more extreme cases an absolute divorce, it is believed, would be better and more conducive to good morals than a decree of separation. Neither considerations of morality nor of public policy should compel a faithful wife to be bound for life to a brutal, drunken husband, nor a kind and indulgent husband to be forced to submit to the baseless accusations of crime and immorality of a wife who constantly and persistently violates her marriage vow. 334. Acts not Extreme Cruelty. It is not every act of imkindness, nor every act of selfishness or temper, that will constitute extreme cruelty within the con- templation of the statute. It has been held that the following acts do not constitute such extreme cruelty as will justify a decree of divorce: Quarreling, and a single acfyof violence; 84 petty annoyances and fault-finding ; 35 unhappiness arising from unruly tempers and mutual wrangling; 36 irascibility and harshness when provoked purposely; 36 * a single act of cause- less violence; 37 mutual wrangling and exhibitions of unruly temper. 38 A husband will not be heard to complain of cruelty by his wife when he is at the same time denying to her all con- 32. Delor v. Delor, 159 Mich. 36. Rose v. Rose, 50 Mich. 92, 624, 124 ,N. W. 544. 14 N. W. 711. 33. Waldhorn v. Waldhorn, 37. German v. German, 57 165 Mich. 130, 130 N. W. 199. .Mich. 256, 23 N. W. 802. 34. Root v. Root, 164 Mich. 38. Cooper v. Cooper, 17 Mich. 638, 130 N. W. 194. 210; Johnson v. Johnson, 49 Mich. 35. Johnson v. Johnson, 49 639, 14 N. W. 670. Mich. 639. 14 X. W. 670. 229 335 DIVORCE FROM BED AND BOARD sideration due to her as such. 39 'Incompatibility of temper and mutual quarreling constitute no ground for divorce. 40 335. Condonation of Extreme Cruelty. The offense of extreme cruelty may be condoned the same as any other cause for divorce. If the injured party seeks a reconciliation, and marital relations are resumed uncondition- allV, ordinarily the act of cruelty is condoned. 41 But continuance of the marriage relation after one of the parties has been guilty of extreme cruelty, sufficient to justify a decree of divorce, does not furnish a defense on the ground of condonation, unless the offense is not repeated, and unless proper subsequent treatment is shown. 42 Condonation of an offense exists only upon condition that it shall not be repeated, and also that afterwards the party whose offense is forgiven shall treat the other with conjugal kindness; and a breach of such condition will revive the original right to a divorce. 43 The fact that after being cruelly treated, to the extent that she has good ground for divorce, a wife continues to live with her husband for several years in the hope of receiving proper treatment, in which she is disappointed, will not constitute such condonation of the original cruelty as will preclude her- from relying on it in her suit for divorce. 44 But while condonation is conditional upon an express or implied promise that the offense forgiven shall not be repeated, and that the party forgiven shall treat the other thereafter ~with conjugal kindness, it is not be treated as a matter of strict contract. It is more properly a question of whether the facts warrant the conclusion that there was forgiveness, recon- ciliation, reunion and restoration of all marital rights. 45 39. Holmes v. Holmes, 44 43. 2 Bishop on Marriage and Mich. 555, 7 N. W. 228. Divorce, Sec. 308-9; Creech v. 40. Root v. Root, 164 Mich. Creech, 126 Mich. 267, 85 N. W. 638, 130 N. W. 194; Morrison v. 726. Morrison, 64 Mich. 53, 30 N. W. 44. Creyts v. Creyts, 133 Mich. 903. 4, 94 N. W. 383. 41. Runkle v. Runkle, 96 Mich. 45. Creech v. Creech, 126 Mich 493, 56 N. W. 2; Tackaherry v. 268, 85 N. W. 726; 2 Bishop, Mar. Tackaberry, 101 Mich. 102, 59 Div. & Sep., Sec. 271; 9 Am. and N. W. 400. Eng. Enc. of Law ,(2nd Ed.) 822 42. Hazelton v. Hazelton, 162 and note. Mich. 192, 127 N. W. 297. 230 I:I:ITSAI. OK n rsr..\\i TO sri-i-ouT \VIKK 335a. Refusal of the Husband to Support the Wife. A divorce from bed and board forever, or for a limited time, may be decreed on the complaint of the wife, "when the hus- band, being of sufficient ability to provide a suitable mainte- nance for her, shall grossly or wantonly and cruelly refuse or neglect so to do." 46 The court may, in its discretion, grant an absolute divorce for the same cause, when asked for in the bill of complain!, if in the opinion of the court it will be discreet and proper so to do, under the particular circumstances of the case, if i lie court shall deem such absolute divorce for the best interest of the parties. 47 The same statute also provides for a limited divorce or an absolute one, under similar conditions, for "utter desertion by either of the parties for the term of two years." Ina bill for. limited divorce on the ground of the husband's refusal to support the wife, an allegation charging the hus- band \vith "inhuman and cruel treatment," and that "he had Crossly, wantonly and cruelly refused and neglected to pro- vide a suitable maintenance," states sufficient cause for a di- vorce, and, if such allegation is supported by the proof, will justify a decree of divorce from bed and board, In such a case it is not necessary to aver any cruel treatment, except what is involved in the gross, wanton and cruel neglect or refusal to support the wife, the defendant being of sufficient ability. I'n- der such averments all those facts and circumstances tending to show that the neglect and refusal were gross,. wanton and cruel, are admissible in evidence. 48 Willingness of the husband to support the wife in his own home is no defense to her claim of right to le supported else- where, when his treatment of her In such as to render it un- safe and improper for her to reside and cohabit with him. 4 " Hut an obligation of the husband to support the wife elsewhere than in his own home can arise only by his turning her away from such home, or by his being guilty of such misconduct as wowld justify her in leaving him. If the conduct of a husband towards his wife is such that she cannot safely and properly live with him, and for that rea- 46. C. L. 1915, (11398) ; How- 48. Brown v. Brown, 22 Mich, ell, 2nd. Ed., 11460. 242. 47. P. A. 1907, p. 426; Howell, 49. Brown v. Brown, 22 Mich. 2nd. Ed., 11460. 242; Randall v. Randall, 37 Mich. i-74. 231 335a DIVORCE FROM BED . AND BOARD son it becomes necessary for her to leave the home, she does not thereby relinquish her right to support from her husband. His obligation to support her remains the same, although by his own conduct he has relinquished his right to the wife's services, which constitute the consideration for his obligation to support her. 50 The failure of a husband to support his wife, which is due to lack of success in business, is not, ordinarily, ground for divorce. In all cases for divorce, either absolute or limited, on the ground of failure to support the wife, it must be made to appear that the husband is of sufficient ability*, and that without any reason or cause whatever he neglects or refuses to furnish such support. The wife's right is to be supported at her husband's domi- cile, unless she has lost that right by misbehavior. 51 Where a wife who is seeking a divorce is justified by her husband's conduct in living apart from him, he is under legal obligation to support her elsewhere. 52 50. Randall v. Randall, 37 109. Mich. 574; Stewart v. Stewart, 52. Page v. Page, 51 Mich. 88, 155 Mich. 421, 119 N. W. 444. 16 N. W. 245. 51. Snyder v. People, 26 Mich. 232 CHAPTER XXXI. <;I:M;KAL PROVISIONS IN ACTIONS FOR DIVORCE AND ANN! LMENT OF MARRIAGE. $336. Residence of Parties. 8337. Oath of Plaintiff as to Collusion. 338. Wife may File Bill in her Own Name. 339. Temporary Alimony and Expense Money Costs. 340. Restraint of Liberty of Wife and Care of Children while Suit is Pending. 341. Custody and Care of Children on Final Decree. 342. Wife Entitled to her .Real Estate When. 343. Restoration of Personal Estate of Wife. 344. Trustees When may be Appointed. 345. Duties of Trustees Bonds. 346. Husband to Disclose on Oath. 347. Permanent Alimony. 348. Ascertainment of Amount. 349. Limitation of Power of Court to Award. 350. Testimony When and how Taken. 351. Dower When Wife Entitled to. 352. Lien on Real and Personal Estate. 357-. Enforcement of Lien. 358. Execution to Collect Sale or Division of Property. 359. Suit to Foreclose Lien. 360. Court may Alter Decree. 361. Legitimacy of Children in certain Cases Adultery Former Spouse Living Non-Age. 362. Cohabitation after Divorce How Punished. 363. Who may File Bill to Annul Marriage In Case of Non-Age Idiocy or Lunacy. 364. Annulment Force or Fraud Denied When Custody of Chil- dren. 365. Physical Incapacity Limitations. 366. Admissions and Confessions Testimony of Parties. 367. Court may Deny Relief in Certain Cases of Adultery. 368. Forgiveness and Condonation. 369. Support when Divorce from Bed and Board Denied. 370. Divorce from Bed and Board Revoked. 371. Special Question to be Asked of Witnesses. 372, Bill of Complaint to Allege Names and Ages of Children. Ser- vice of Summons on Prosecutor. 373. Remarriage may be Forbidden Limit of Time Penalty for Violation. 374. Dower" Provision in Lieu of Tenants by Entireties. 375. Alimony When Decree Rendered in Another State. 376. Restoring Former Name to Wife. 377. Right of Husband to Alimony out of Wife's Property. 233 336 ACTIONS FOR DIVORCE AND ANNULMENT 336. Residence of Parties. The Michigan statute provides that "no decree of divorce shall be granted by any court of this state in any case unless : first, the party applying therefor shall have resided in this state for one year immediately preceding the time of filing the ~ ^ bill or petition therefor ; or second, the marriage which it is / I sought to dissolve was solemnized in this state, and the party applying for such divorce shall have resided in this state from the time of such marriage until the time of bringing such suit for divorce." The statute further provides that no divorce shall be > granted unless one of the following facts exists: first, when the defendant is domiciled in this state at the time the bill is X filed; or second, when the defendant was domiciled in this state when the cause for divorce alleged in the bill arose; or third, when the defendant shall have been brought in by pub- lication, or shall have been personally served with process in this state, or shall have been personally served with a copy of the order for appearance and publication within this state or elsewhere, or has -voluntarily appeared in the action. If the order for appearance and publication is served out- side this state, proof of such service must be made by the affi- davit of the person who serves the same, and such Affidavit may be made before a justice of the peace or notary public. If the affidavit is made outside the state, it must be authen- ticated by the certificate of the clerk of a court of record, cer- tifying to the official character of the justice or notary, and the genuineness of his signature to the jurat of the affidavit. In all cases where divorce is asked on the ground of de- sertion, such desertion is deemed to have occurred and taken place in this state, for tlie purpose of this act, when the par- ties, plaintiff and defendant, shall have been actually domi- ciled in good faith, in this state at the time the defendant actually abandoned the plaintiff, without the proof of his or her actual intent at the time of such abandonment. When the bill charges that the cause or causes for divorce occurred out of this state, no decree of' divorce can be granted unless the plaintiff or defendant, one or both of them, shall have resided in this state for two years immediately preced- ing the 'time of filing the bill. No proofs or testimony can be taken in any action for divorce until the expiration of two months from the time of filing 234 OATH or i-i.Ai.vnrr AS TO rou.rsiox the lull, \e.\cept where the cause for divorce alleged in tin- bill is desertion, or \vlicn testimony is taken condit ionally for the purpose of perpetuating such testimony. When the dele ndaiit iii a divorce suit was not domiciled in this state at ilie lime the suit was commenced, or shall not have been domiciled therein at the time the cause for divorce arose, before any decree of divorce can be granted the plain tiff must prove that the parties have actually lived and co- habited together as husband and wife \\ithin this state, or that the plaintiff has in good faith resided in this state for two years immediately preceding the time of filing the bill for divorce. 1 The statutory provisions as to residence are mandatory, and the place of residence must be shown by intention and acts. An admission by the defendant's answer, of complainant's residence as alleged in the bill, is not sufficient to confer juris- diction. Such residence must be proven as a fact, regard- ' "I the admissions of the answer. Intention has always been given large consideration in determining the question of residence, but it is not controlling without acts to support it. and such acts should be such as fairly tend to show the intention. 2 337. Oath of Plaintiff as to Collusion. The statute positively forbids the granting^of a decree of divorce when it appears that the bill therefor was founded in, or exhibited by, collusion between the parties. The oath or affirmation administered to the plaintiff in swearing to the bill, in addition to all other legal requirements, must recite the following: "And you do solemnly swear (or attirnn that there is no collusion, understanding or agreement what- ever between yourself and the defendant herein in relation to your application for a divorce." The statute also positive- ly forbids a divorce in any case where the plaintiff is guilty of the same crime or misconduct charged against defendant. 8 The provision of the statute which forbids a divorce when it appears that the bill is founded on collusion between the 1. C. L. 1915, (11400); How- Prettyman, 125 Ind. 149; Schmidt ell, 2nd Ed., 11461. v. Schmidt, 29 N. J. Eq. 496; Ben- I. Bradfield v. Bradfield, 154 nett v. Bennett, 28 Cal. 600. Mich. 115, 117 N. W. R. 558; 3. C. L. '15, (11401); Howell. Smith v. Smith. 10 N. t)ak. 219, 2nd. Ed., 11462. s N. W. R. 721; Prettyman v. 235 338 ACTIONS FOR DIVORCE AND ANNULMENT parties is mandatory, and is based on public policy, which wisely forbids the annulment of the marriage contract by agreement of the parties. 4 Where both parties are at fault, and where the plaintiff is guilty of the same misconduct as is charged against the defendant, a decree of divorce will also be denied. 5 This provision is an application and legislative sanction of the equitable rule that one who comes into a court of equity, asking for relief and redress 'of alleged wrongs, must come with clean hands. Divorce is a remedy for the innocent and injured party, and a plaintiff who him- self has violated his marriage vows has no standing in a court of equity, to be relieved of the obligations which the marriage relation places upon him, because the other spouse has also broken it. "The law is for the assistance of those who obey it, and not for those who violate it, and, where two parties are both in the same wrong, the court helps neither." 6 The statute does not permit the courts to apply the rule of comparative wrong doing, and to grant relief to the one found guilty of the lesser misconduct, against the one found guilty of the greater." The statute contemplates no such rule, and is imperative that no divorce shall be granted in any case, where the plaintiff shall be guilty of the same misconduct as that charged against the other party." 7 338. Wife may File Bill in her Own Name. The wife may file the bill in her own name, as well as the husband, and in all cases the answer to the bill may be with- out oath or affirmation. 8 And ; she may become personally 4. Thompson v. Thompson, 70 6. Kellogg v. Kellogg, 171 Mich. 62, 37 N. W. R. 710; Ayres Mich. 518, 137 N. W. R. 249; 2 v. Wayne Circuit Judge, 90 Mich. Bishop on Marriage and Divorce 380, 51 N. W. R. 461; McWilliams (5th Ed.) Sec. 87; Stafford v. v. Lenawee Circuit Judge, 142 Stafford, 53 Mich. 522, 19 N. W. Mich. 226, 105 N. W. R. 611. R. 201; Warner v. Warner, 54 5. Warner v. Warner, 54 Mich. Mich. 492, 20 N. W. R. 557; Stiehr 494, 20 N. W. R. 557; HofE v. v. Stiehr, 145 Mich. 297, 108 Hoff 48 Mich. 281, 12 N. W. R. N. W. R. 684; Root v. Root, 164 160; Morrison v. Morrison, 64 Mich. 638, 130 N. W. R. 194, 32 L. Mich. 53, 30 N. W. R. 903; Minde R. A. (N. S.) 837, Ann Cases, v. Minde, 65 Mich. 633, 32 N. W. 1912 B. 740; 14 Cyc. pp. 648-649. R. 868; Peck v. Peck, 66 Mich. 7. Kellogg v. Kellogg, 171 586, 33 N. W. R. 893. Sissung v. Mich. 518, 137 N. W. R. 249. Sissung, 65 Mich. 179, 31 N. W. 8. C. L. 1915, (11402) ; Howell, R. 770; Kellogg v. Kellogg, 171 2nd. Ed., 11463. Mich. 518, 137 N. W. R. 249. 236 TKMroKAKY ALIMONY AM" EXPXJ988 MONEY liable for attorney fees and expenses in n divorce suit in which she is a party, either as plaintiff or as defendant." "The statute clearly indicates that such proceedings are to be main- tained at the cost of the wife, unless the court shall relieve her of such costs by an order for expense nionev to be paid by the husband." 10 339. Temporary Alimony and Expense Money Costs. The statute provides that in all suits brought for divorce or separation, the court, in its discretion, may require the hiis band to pay any sums necessary to enable the wife to defend or carry on the suit during its pendency. The court also. 1 in its discretion, may decree costs against either party and award execution for the same, or it may order such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver. 11 If the wife has no means of support or to defray her necessary expenses in de- fending or prosecuting the suit, and her husband has property or good earning capacity and opportunity, the court will order him to advance a suitable amount to her for 7 such pur- poses. 12 While this section of the statute docs not in express terms authorize temporary alimony, it is only confirmatory of the common law, which requires a husband to support his wife while the marriage relation exists. The right to grant tem- porary alimony has always been recognized in divorce sniis when the circumstances required it. Whether this section con templates advances for support, or must be confined strictly to legal expenses, is of little importance, if any, as such allow- ances always have been upheld when necessary to pi-event a failure of justice, and, in the discretion of the court, may be allowed, although the wife has some property of her own. if the income therefrom is not sufficient for her support. 13 The amount of temporary alimony and expense money to be ' allowed rests in the discretion of the court, and should be con fined to what is reasonably necessary in each case, due regard 9. Wolcott v. Patterson, 100 421; Goldsmith v. Goldsmith, 6 Mich. 228, 58 N. W. R. 1006. Mich. 285. 10. Ross v. Ross, 47 Mich. 185, 13. Hairfes v. Halnes, 35 Midi. 10 N. W. R. 193. 143; Rose v. Rose, 53 Mich. 585, 11. C. L. 1915, (11404); Howell, 19 N. W. R. 196;* Potts v. Potts, 2nd Ed., 11465. 68 Mich. 495, 36 N. W. R. 240. 12. Story v. Story, Walk. Ch. 237 ACTIONS FOR DIVORCE AND ANNULMENT being had to "the husband's 'ability and to the circumstances peculiar to the particular case before the court. When the husband's condition is such that his means are not sufficient to maintain his wife and family without the assistance of their labor, she should not receive an allowance so large as to permit her to live in idleness. 14 340. Restraint of. Liberty of Wife and Care of Children while Suit is Pending. After the bill has been filed in a suit for divorce or to annul a marriage, the court in which the suit is pending, on petition of the wife, may prohibit the husband at any time, either in term or vacation, from imposing any restraint on her personal liberty during the pendency of the suit. 15 The court also, on the application of either party, may make such order concern- ing the care and custody of the minor children of the parties, and their suitable maintenance during the pendency of the suit, as shall be deemed proper and necessary, and for their benefit. 16 341. Custody and Care of Children on Final Decree. Upon granting a sentence or decree of nullity, or upon de- creeing a divorce, whether absolute or limited, it is the duty of the court to make such further decree as shall be just and proper concerning the care, custody and maintenance of the minor children of the parties; and the court may determine, and provide in the decree, with which of the parents the chil- dren, or aqy of them, may remain. 17 As a general .rule it may be said that the mother is entitled to the care and custody of all such children under twelve years of age, and the father to the care and custody of those of the age of twelve years or more. 18 . This rule, however, which is statutory, is not so mandatory as to make the ages of the children the arbitrary test of their custody, either tem- porarily during the pendency of the suit, or permanently by / final decree. The statute has never been construed as qualify- 14. Ross v. Griffin, 53 Mich. ell, 2nd. Ed. 11466. 7, 18 N. W. R. 534; Fromau v. 16. C. L. 1915, (11406); How- Froman, 53 Mich. 581, 19 N. W. ell, 2nd. Ed. 11467. R. 193; Jordan v. Jordan, 62 17. C. L. 1915, (11407); How Mich. 178; Brown v. Brown, 22 ell, 2nd. Ed., 11468. Mich. 242. 18. C. L. 1915, (11484); How- 15. C. L. 1915, (11405); How- ell, 2nd. Ed., 11537. 238 WIFi: KVriTI.KIi 'I'O II KK KKAI, KSTATK inu in- restricting the inherent, broad, discret ionary powers of a court of chancery to adjudicate MS to the custody and con- trol of children whose interests are before it, according to the varying elements for consideration arising in each case, ;md to make stich disposition of each child as its liest inter- ests appear to demand. 1 " The section, taken as a whole, indi- cates that it was intended as a general guide for the courts when in doubt as to which of the parents is the more tit, or when neither is shown to be unfit to have the care and custody of the young children. It has been construed to mean that lriindionld he lixed by the judge who hears the evidence.* 1 The power of the court to nxvanl and lix the amount of ali- mony to he paid to a wife in a divorce proceeding is statutory and rests to sonic extent in the discretion of the trial court. The power of the courts to grant alimony is limited to the cases pointed out by the statute. The court of chancery has no inherent power to award permanent alimony, and while the statute gives such court authority to grant alimony to the \wife for the support of herself and minor children, and to create a lien against the husband's property to secure its pay- ment, it confers no such power to decree the payment of any mm to the children on their reaching majority, or even during uiimritv. or to create a lien to secure the payment of such avjml. 8 ' \ decree, entered by consent of the defendant in a divorce proceeding, providing for the payment of a stipulated sum to the wife's mother, and certain sums in lump to the children at theV majority, and creating a lien on real estate to secure the paynent of the same, exceeds the jurisdiction of the court, and mch provisions are void and cannot operate as a family settlement. 40 In Jiich special proceedings as divorce and partition, the court o? chancery must be considered as of limited and special jurisdiction, concerning Which no such presumption is in- dulged is prevails in actions, at common law, or ^uits under the geneial equitable jurisdiction. It is a recognized doctrine that partW by their consent, cannot confer jurisdiction over a subject-hatter upon courts from which the law has with- held it. 41 37. MinceA v. Wayne Circuit 893; Peltier v. Peltier, Har. Ch. Judge, 163 MVh. 628, 128 N. W. 19; Swiney v. Swiney, 107 Mich. R. 734. 459, 65 N. W. R. 287. 38. Bandflelftv. Bandfield, 117 40. Maslen v. Anderson, 163 Mich. 80, 75 N. V. R. 287; Maslen Mich. 477, 128 N. W. R. 723. v. Anderson, 16\ Mich. 477, 128 44. Platt v. Stewart, 10 Mich. N. W. R, 723. BMy v . Bialy, 167 265; Merrill v. Montgomery, 25 Mich. 559, 133 N.W. R. 496. Mich. 73; Weimer v. Bunbury, 30 39. Maslen v. Vnderson, 163 Mich. 201; Kirkwood v. Hoxie, 95 Mich. 481, 128 N.\w. R. 723; Mich. 62, 54 N. W. R. 720, 35 Am. Perkins v. Perkins, \R Mich. 162; St. R. 549; Brown v. Fletchers Baugh v. Baugh, 37Vich. 59, 26 Estate, 146 Mich. 401, 109 N. W. Am. R. 495; Peck i p e ck, 66 R. 686; Brown on Jurisdiction, Mich. 588, 83 N. W. 1^893; Peck pp. 28, 29; 11 Cyc. 693 and note, v. Uhl, 66 Mich. 592, 3, N. w. R. v \ - 243 .">4N ACTIONS FOR DIVORCE AND ANNULMENT 348. Ascertainment of Amount. In ascertaining the amount to be awarded as permanent ali- mony no arbitrary rule can be laid down, and the courts have seldom, if ever, attempted to do so. Each case must be de- termined according to its own peculiar circumstances. The ability of the husband to pay, the circumstances surrounding and the character of the act constituting the grounds for the divorce, the earning capacity of both husband and wife, the number and ages of the minor children, the financial circum- stances of both husband and wife, the age and physical con- dition of the parties, the length of time the parties, have been married and lived together, whether the property of the hus band has been accumulated by the joint effort and labor o the husband and wife, and all of the circumstances surroum- ing each particular case, should be ascertained and considered \^^ by the court whose duty it is to make the award. 42 349. Limitation of Power of Court to Award. Within the provisions of the statute, the power to avard alimony in a divorce proceeding, and the extent of suca al- lowance, are largely in the discretion of the court. Th< wife may be awarded alimony in a decree of divorce granted on the application of the husband, for her misconduct, except where the divorce is granted on account of adultery. 43 On tie other hand, alimony may be denied a wife, even upon a deciee of di- vorce obtained by her upon a charge of cruelty, where the cir- cumstances are such as to make it appear that ste has not suffered to any great extent from the treatment complained of, and where it further appears that she has already received from her husband an amount of property not ver* dispropor- tionate to the amount of alimony which might otlerwise have been allowed her. 44 42. Brasch v. Brasch, 168 Mich. 645, 125 N. W. R 693; Robson v. 459, 134 N. W. R. 450; Des Cham- Robson, 161 Mic).' 293, 126 N. W. plain v. Des Champlain, 164 Mich. R. 216; Hornim v. Horning, 162 511, 129 N. W. R. 702; Brandan Mich. 130, 127 N. W. R. 369; v. Brandan, 166 Mich. 462, 131 Ferguson v. Frguson, 147 Mich. N. W. R. 1099; Baily v. Baily, 673, 111 N. W R- 175. 167 Mich. 559, 133 N. W. R. 496; 43. Lofvarier v. Lofvander, Delor v. Delor, 159 Mich. 624, 146 Mich. 37, 109 N. W. R. 662. 124 N. W. R. 554; Lawler v. Law- 44. Steves v. Stevens, 49 If r. 157 Mich. 107, 121 N. W. R. Mich. 504, 3 N. W. R. 835. 29,4; Kraft, v. Kraft, 160 Mich. 244 TllE TAKING OF TEST I M ON V Where it appeared that a wife thirty-two years of age left her husband, who was forty-eight years old, wit lion 1 reason- able cause after thirty-seven days of married life, and notwith- standing his ell'orts to please her, and within a few days there- after had a miscarriage, an allowance of one thousand dollars to her as alimony from his property worth seven thousand dollars was held to be excessive, and the amount was reduced to five hundred dollars and one 'hundred dollars solicitor's fees. 45 vj350. Testimony -When and how Taken. AN a general rule the proofs for the purpose of determining the proper award for permanent alimony should not be taken until it is determined whether a divorce will be decreed. 48 Since the passage of the Judicature Act of 11)15, however, in all chancery cases the testimony is required to be taken in open court as in suits at law, unless the court shall specially order a reference to a circuit court commissioner, or other person authorized by law to administer oaths, to -take such tes- timony. 17 This statute does not preclude the court from making an order to lefer a chancery case to a circuit court commissioner to take the proofs. The court will entertain a special applica- tion to refer the case, and, if a proper showing is made, the court may in its discretion order such reference. 48 A gross sum for alimony may be decreed. Kxperience has shown that a defendant sometimes tries to evade the payment of an annuity, where he could not or would not he likely to be successful in evading the payment of a gross sum. In cases where there is reason to apprehend vexatious delays in pay- ment, a gross smn should be awarded in preference to an- nuity. 49 45. Lofvander v. Lofvander, attorney, shall enter into a stipu 146 Mich. 370, 109 N. W. R. 662. lation to that effect, in writing. 46. Rea v. Rea, 53 Mich. 40, and file the same with the clerk 18 N. W. R. 551. of the circuit court of the proper 47. C. L. 1915, (12489); Cum- county. mins & Beechers J. A. 612. The 48. Reynolds v. Reynolds, 92 judicature act also provides fpage Mich. 104, 52 N. W. R. 295; Briggs 28) that testimony tq be used in v. Brigss, 20 Mich. 46. any circuit court, in chancery 49. Skillman v. Skillman, 18 may be taken before a justice of Mich. 458; Hamilton v. Hamil- the peace or notary public, if the ton, 37 Mich. 606; Taylor v. Glad- parties interested, their agent or win, 40 Mich. 234; Seibly v. ">"> 1 ACTIONS FOR DIVORCE AND ANNULMENT 351. Dower When Wife Entitled to. Under some circumstances a wife, upon obtaining a di- vorce, is entitled to dower in her husband's lands in the same manner as if he were dead. The statute provides that, "when the marriage shall be dissolved by the husband being sen- tenced to imprisonment for life, and when a divorce shall be decreed for the cause of adultery committed by the husband, or for the misconduct or habitual drunkenness of the hus- band, or on account of his being sentenced to imprisonment for a term of three years or more, the wife shall be entitled to her dower in his lands in the same manner as if he were dead ; but she shall not be entitled to dower in any other case of divorce." 50 Where a wife has been granted a divorce under such cir- cumstances that she is entitled to her dower interest in her husband's lands, and provision for her support, the parties are competent to contract that, in consideration of her foregoing enforcement of her rights during his lifetime, he will make adequate provision by will for her support; and a court of equity will entertain a bill for specific performance Jf such contract. 51 Whenever a divorced woman becomes entitled to dower in her husband's lands, her right vests as soon as the decree be- comes final. 52 A divorced wife's right to dower in her husband's lands is not based upon the decree but upon the statute, and therefore her right to recover possession is not barred in ten years, the time limited for bringing actions upon judgments and decrees, but only by the fifteen years allowed by statute for the recov- ery of the % possession of lands. 53 The decree of divorce is only the evidence that the event has taken place which gives the wife the right to dower, and fixes the time when her right of action accrues. The statute of limitations in, regard to real actions for the recovery of the possession of land controls. Judge, 105 Mich. 584, 63 N. W. 52. Percival v. Percival, 56 R. 528; Bialy v. Bialy, 167 Mich. Mich. 297, 22 N. W. R. 807; Orth 559, 133 N. W. R. 496; McClung v. Orth, 69 Mich. 158, 37 N. W. R. v. McClung, 40 Mich. 498. 67; Bowles v. Hoard, 71 Mich. 50. C. L. 1915, (11415); Howell, 150, 39 N. W. R. 24; And she 2nd. Ed., 11476; Jordan v. Jor- can maintain ejectment once for dan, 53 Mich. 550, 19 N. W. R. her dower, Percival v. Percival, 180. 56 Mich. 297, 22 N. W.'R. 807. 51. Kundinger v. Kundinger, 53. Moross v. Moross, 132 Mich. 150 Mich. 630, 114 N. W. R. 4T>8. 203, 93 N. W. R. 247. 246 AM> ITKSO.XAL KSTATE A -stipulation in divorce proceedings lliat the payment of a specilied siini of money and the conveyance of certain lands to the wife shall he in full for all expenses and alimony against the husband, will, release the wife's dower rights, although there is no express mention of dower in such stipulation, if such is4he intention and understanding of the parti- Under the provision of the statute giving a wife the right to dower in the lands of her husband who has Itcen sentenced to imprisonment for life, her right vests as soon as the sen- tence is passed, and she may have such dower assigned at once, or bring an action of ejectment for its recovery, with- out procuring a decree of divorce. This is because the mar- riage is absolutely dissolved by the sentence of the husband to imprisonment for life, and the husband's subsequent par- don will not restore him to his conjugal rights/-' 1 If, in such a case, the husband should appeal from the judgment of life sentence, the wife's right to dower would probably be sus- pended until such time, as the judgment or sentence became absolute; and, if it were reversed and set aside, an acquittal of the charge afterwards would probably restore to the parties all their conjugal rights, although a pardon would not. 352. Lien on Real and Personal Estate. The statute provides that "in all cases where alimony or allowances for the support and education of minor children shall be decreed to the wife, the amount thereof shall consti- tute a lieu upon such of the real and personal estate of the husband as the court by its decree shall direct, and in default of payment of the amount so decreed, the court may decree the sale of the property against which such lien is decreed, in the same manner and upon like notice as in suits for the fore- closure of mortgage liens. Prior to 1877, the statute did not authorize the court to le clare a lien on the. lands of the husband to secure permanent alimony to be paid io the wife. A court of equity has no in- herent power to create liens on real estate, and has no general power, independent of statute, to declare alimony to be a spe- cific charge upon lands, or to direct such lands to be sold in 54. McKelvey v. McKelvey. 112 55. Q. L. 1915, (11396); Howell. Mich. 274. 70 N. W. R. 582, Owen 2nd. Ed.. 511457. v. Yale, 75 Mich. 256, 42 N. W. 56. C. L. 1915, (11416) ; Howell. R. 817; Adams v. Story, 135 111. 2nd. Ed. 11477. . 448, 25 Am. St. R. 392. 247 357 ACTIONS FOR DIVORCE AND ANNULMENT default of payment. 57 Jurisdiction over alimony being statu- tory, it cannot be extended beyond the statutory authority, which, prior to 1877, allowed only a sequestration of rents and profits of realty where the defendant had be.en ordered to give security and had neglected or refused to do so. 58 In 1877, however, the legislature, by Act No. 44, so amended the former statute as to make an allowance for alimony decreed to the wife for the support and education of the children of the mar- riage, a lien upon such of the real and personal estate of the husband as the court by its decree directs. 59 357. Enforcement of Lien. When an award of alimony becomes a lien upon the real and personal estate of the husband, andjihe award is not paid, the statute provides that the court may decree the sale of the property against which such lien is decreed' in the same man- ner and upon like notice as in suits for the foreclosure of mort- gage liens. 60 In such cases the decree for divorce and alimony should designate the particular property of the husband which is to be subjected to the lien. The language of the statute seems to indicate that the court may decree the lien against the whole or any part of the husband's real or personal prop- erty. The statute creates the lien, but the court designates against what property of the husband it shall be enforced. A sale of such property, however, cannot lawfully be made un- der such decree, without some further order adjudging the defendant to be in default, and ascertaining the amount. 61 The provisions of the decree awarding alimony and the desig- nation of the property of the husband against which a lien may be enforced are the sole origin of the responsibility of the husband. The object of these provisions is to create a debt payable in the future, and to place that debt on a footing sim- ilar to that of a mortgage on the property designated by the decree to be subject to the lien. The decree cannot adjudicate in advance for future defaults. No court, either of law or of 57. Perkins v. Perkins, 16 P. A. 1897, Act No. 197; C. L. Mich. 161. 1915, (11416) ; Howell, 2nd. Ed. 58. Bennett v. Nichols, 12 11477. Mich. 22; Story v. Story, Walk. 60. C.L. 1915, (11416) ; Howell, Ch. 421; Peltier v. Peltier, Har. 2nd. 11477. Ch. 19. 61. Perkins v. Perkins, 16 59. P. A. 1877, Act No. 44; Mich. 165. "248 SALi: oi: 1'IVlSloN (K rKol'KUM equity. can lawfully direct judgment to j:o against a ]>arty, or against his property. until liis default lias IMMMI made out. The determination of the amount of any debt actually due, which is to st;md as the basis of a judicial sale or execution, is a judicial act : and a hearing must precede the condemna- tion. 62 The court has power under the statute to make the award against the husband, in a divorce proceedings, for. the support of the children, a charge upon his property, and alter it from time to time in the interests of justice, and on the death of the husband will fix the period for which the payments must con- tinue, calculate and determine their present worth, and make the MI ni a lien upon his property, with priority over all other claims of his widow, heirs, and next of kin. except rights of dower. The provision in a decree of divorce against the hus- band for the payment of a certain sum monthly, until the fur- ther order of the court, for the support of children, is not dis charged by the husband's death. 83 358. Execution to Collect Sale or Division of Property. The same section of the statute which authorizes a lien on the husband's real and personal property to secure the pay- ment of alimony awarded to the wife provides that "the court may award execution for the collection of the same, or the court may sequester the real and personal estate of the hus- band and may appoint a receiver thereof, and cause such per- sonal estate and the rents and profits of such real estate to be applied to the payment thereof, or the court may in lieu of a money allowance decree such a. division between the husband and wife of the real and personal estate of the husband or of the husband and wife by joint ownership or right as he shall deem to be equitable and just." 94 This section applies to per- manent alimony only. An execution cannot be awarded under this section to collect temporary alimony.* 5 Where a decree, giving the wife one-third of the husband's property for alimony, permitted him to discharge it by setting off to her ten thousand dollars in land, it was held that the i 62. Perkins v. Perkins, 16 son, 56 Mich. 185, 22 N. W. R. Mich. 165. 264: Potts v. Potts, 68 Mich. 492, 63. Creyts v. Creyts, 143 Mich. 36 N. W. R. 240. 375, 106 N. W. R. 1111. 65. Palmer v. Palmer, 45 64. C. L. 1915, (11416); Howell, Mich. 150, 7 N. W. R. 760. 2nd. Ed.. 5H477; Edison v. Edi- 249 358 ACTIONS FOR DIVORCE AND ANNULMENT land should be estimated to her according' to the value as shown by the proofs in the case, and not by subsequent en- hanced valuation. 66 Under this section, on granting a decree of divorce, real es- tate held by the parties as tenants by entireties may be di- vided. 67 The court may also award a sum in gross, which becomes payable presently, or the court may sequester the real and per- sonal estate of the husband, and appoint a receiver thereof, and cause the personal estate and the rents and profits of the real estate to be applied to the payment of alimony. And the better practice is for the court to determine in the .first instance the right to decree a divorce, and to reserve the question of alimony for subsequent adjudication. 68 Where a decree of divorce reserves for subsequent consider- ation and adjudication the question of the amount of alimony to be awarded the wife, and the husband dies pending such adjudication, the court is not dusted of jurisdiction to award permanent alimony under the provisions of the statute author- izing the court to award a gross sum as permanent alimony. The statute seems to have changed or modified the general rule that the death of either party to a divorce suit pendente lite abates the suit, and that a proceeding to enforce alimony, at common law, abates on the death of either party. The reason of the general rule referred to, in the first in- stance, is that the purpose for which the proceeding is pend- ing namely, the dissolution of the marriage is accom- plished, arid, in the second instance, that at common laV ali- mony consisting, as it does, of provision for the support of the wife, on a divorce from bed and board, by means of an allow- ance to be paid by the husband, the proceeding to enforce it relates to conditions which exist only during the life of the two. But the statute has changed ^ the general common law rule by authorizing an award of money in gross, which becomes 66. McClung v, McClung, 42 Carnahan v. Carnahan, 143 Mich. Mich. 53, 3 N. W. R. 250. 390, 107 N. W. R. 73. 67. Jeske v: Jeske, 147 Mich. 68. Rea v. Rea, 53 Mich. 40, 367, 110 N. W. R. 1060; Brasch v. 18 N. W. R. 551; Seibly v. Per- Brasch, 168 Mich. 461, 134 N. W. son, Circuit Judge, 105 Mich. R. 450. As to ascertainment of 584, 63 N. W. R. 528; Miller v. husband's property and division Clark, 23 Ind. 370; Stewart, Mar. between husband and wife see; & Div., 376. 250 SI'l'^TO FORECLOSE LIKX presently payable, or ;i division of the property. If it results that, the death of the husband, after a decree of divorce has been granted, ami pending the determination of the question of alimony, ousts tho court of jurisdiction to award perm a- in-lit alimony to the wife, it follows that in every case where a decree is made dissolving the marriage and reserving the consideration and determination of the question of alimony for subsequent adjudication, there must bo a period of greater or less duration, during which The wife is at the risk of losing the interest in her husband's estate which she would have un- der the statute of distributions but for the divorce. Under such conditions the wife is placed in a position by the decree of divorce which precludes her from sharing as a widow in her husband's estate, if she is precluded by his death from en- forcing her right to alimony. 00 In a proceeding for an award of alimony against such de- ceased husband's estate, where he dies after the decree dissolv- ing the marriage has been entered and before the adjudication of the question of alimony reserved for further order and di- rection, the heirs and other personal representatives of the de- ceased husband must be made parti* 359. Suit to Foreclose Lien. Where a decree for alimony in a gross sum provides it shall be a lien on real estate, a suit to foreclose such lieu may be maintained in case of default of payment according to the terms of the decree. If the decree is -made a lion on land sit- uated in another county than the one in which the decree was rendered, the suit to foreclose the lien must be instituted in the county where the land or some part of it is situated. The statute pro\ ides that in default of payment of tho amount of alimony decreed, the court may decree the sale of the prop- erty chared with the lien "in the same manner and upon like notice as in suits for the foreclosure of mortgage liens." 7 The provision of the statute relating to the foreclosure of mort- gage liens provides that "all bills for the foreclosure or satis faction of mortgages shall bo tiled in the circuit court in chau 69. Seibly v. Ingham Circuit .^HRP, 105 Mich. 587, 63 N. W. R. Judge, 105 Mich. 584, 63 N. W. R. 528. 528. 71. C. L. 1915, (11416) : Howell. 70. Shafer v. Shafer, 30 Mich. _'nd. Ed. 811477 163; Seibley v. Ingham Circuit 251 359 ACTIONS FOR DIVORCE AND ANNULMENT eery of the county where the mortgaged premises, or any part thereof, are situated." 72 A decree for alimony in a fixed sum is generally held to be a judgment of record and will be received by other courts as such. Such a decree rendered in any state of the United States may be carried into judgment in any other state. 73 But when suit is brought in one state upon a decree for a fixed sum of alimony rendered in another state, the measure of re- covery must be the amount due on the decree at the- time the suit is instituted. This is because the court which rendered the decree has power to revise or alter such decree as to the amount, from time to time, on the application of either party. 74 And the decree awarding alimony must have been rendered by a court having jurisdiction of the, parties and of the sub- ject matter, or it will not be sufficient to lay the foundation for a personal judgment in another state. A decree which is void for want of jurisdiction will not support a judgment in personam awarding alimony. 70 While notice by publication in accordance with the laws of the state is sufficient to give the court jurisdiction to dissolve the marriage, such substi- tuted service is not sufficient to lay the foundation for a per- sonal judgment for alimony. 76 An award of alimony is a valid claim against the estate of the claimant's divorced husband, deceased, for the time elaps- ing between the date of the decree and the subsequent remar- riage of the claimant, where the decedent in his life-time took no steps toward a modification of the award. 77 72. C. L. 1915, (12676); Cum- v. Woodworth, 5 Johns. 27, 4 Am. mins & Beecher's Mich. Judica- Dec. 321; People v. Baker, 76 N. ture Act, 799; Howell, 2nd. Ed. Y. 78, 32 Am. R. 274; Pennoyer 12033; Ulman v. Ulman, 148 v. Neff, 95 U. S. 714, 24 L. Ed. Mich. 353, 111 N. W. R. 1072. 5G5; Cooley on Constitutional 73. Lynde v. Lynde, 162 N. Y. Limitation, 405; St. Clair v. Cox, 405, 48 L.-R. A. 679, 181 U. S. 106 U. S. 350, 27 L. Ed., 222, 1 183, 45 L. Ed. 810; Barber v. Sup. Ct. R. 354; Harkness v. Barber, 21 How. U. S. 582, 16 L. Hyde, 98 U. S. 476, 25 L. Ed., 237; Ed. 226. Owens v. Henry, 161 U. S. 642, 74. Lynde v. Lynde, 181 U. S. 40 L. Ed. 837, 16 Sup. Ct. R. 693; 183, 45 L. Ed. Book 810. Henrietta Mining and Milling Co. 75. Erkenbrach v. Erkenbrach, v. Johnson, 173 IT. S. 221, 43 L. 96 N. Y. 456; Signey v. Signey, Ed. 675, 19 Sup. Ct. R. 402. 127 N. Y. 408, 28 N. E. R. 405. 77. Martin v. Thison's Estate, 76. Potter v. Ogden, 136 N. Y. 153 Mich. 516, 116 N. W. R. 1013, 344, 33 N. E. R. 331; Kilburn 18 L. R. A. (N. S.) 257. 25"2 fiHKT MAY AI.TKU I'KriaiK 360 In Massachusetts it is held that as alimony out of a hus- band's property is a provision for the support of the wife by him, the obligation to pay it in the future necessarily e< with the death of the liusband; but amounts already due at the time of his death arc in the nature of a debt then existing, ' and arc payable out of his estate. 78 In Wisconsin it has been held that a divorced wife, after the death of her husband, can enforce payment by his admin- istrator of arrearage of alimony due her, only by proceedings as for a claim against the decedent's estate in the manner pre- scribed by the statutes pertaining thereto; and that a motion in the divorce suit that the administrator be ordered to pay the judgment for alimony is ineffectual. 70 But during the life of both parties, a decree for alimony, though awarded in a gross sum, and the time of payment fixed by the decree, is not such a debt as will be discharged by an adjudication in bankruptcy, or that may be sued upon in a court of law. 80 360. Court may Alter Decree. The statute provides that "after a decree for alimony or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to re- ceive and hold any property for the use of the wife and chil- dren as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such de- cree respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the orig- inal suit." 81 This statute has been construed as authorizing the change only on new facts thereafter transpiring, which are of such a 78. Knapp V. Knapp, 134 Mass. Allen v. Allen, 100 Mass. 373; 353. Knapp v. Knapp, 134 Mass. 353; 79. Guenthers Appeal, 40 Wis. Barber v. Barber, 2 Pin. (Wis.) 115. 297; Kempster v. Evans, 81 Wis. 80. Nixon v. Wright, 146 247, 51 N. W. R. 327, 15 L. R. A. Mich. 231, 109 N. W. R. 274, 10 ::91. Am. & Eng. Ann. Cas. 547; Post 81. C. L. 1915, (11417) ; Howell, v. Neafle, 3 Cains, (N. Y.) 34; 2nd. Ed. 11478. 253 300 ACTIONS FOR DIVORCE AND ANNULMENT character as to make the change necessary to snit such new state of facts. s - A decree awarding the custody of a child to its mother, and a weekly allowance for its support, will not be subsequently modified "upon a showing of facts which were known to the petitioning party to have existed at the time the decree was rendered. Notwithstanding that the amount of alimony fixed in the decree is determined by agreement of the parties at the time the decree is signed, the court afterwards may modify the decree upon petition of one of the parties showing such a change of circumstances as makes such modification pr altera- tion necessai-y. The statute was enacted for the benefit of the children as well as the parents, and any agreement which the parents may make in the settlement of alimony does not bind the conscience of a court of equity as to what is for the wel- fare of the children. 83 Other alleged misconduct and defenses which existed at the time of the decree, and might have been shown, constitute no valid reason for modification of a decree as to alimony. 84 A court of equity has jurisdiction to modify a decree of di- vorce awarding alimony in installments, after the death of the defendant husband, so as to grant a gross sum out of the es- tate of the deceased in lieu thereof. 85 Deduction of alimony is not warranted by reason of remar- riage of the defendant husband, or the fact that the wife has alienated his daughter's affection from him. 86 If a decree of divorce does not provide for alimony, and the question of alimony is not reserved in such decree for fur- 82. Perkins v. Perkins, 12 Smith v. Waalkes, 109 Mich. 16, Mich. 450; Chandler v. Chandler, 66 N. W. R. 679; Miller v. Miller, 24 Mich. 176. 64 Me. 484; Maslen v. Anderson, 83. Camp v. Camp, 158 Mich. 163 Mich. 477, 128 N. W. R. 723; 221, 122 N. W. R. 521; Aldrich Brown v. Brown, 135 Mich. 141, v. Aldrich, 166 Mich. 248, 131 N. 97 N. W. R. 396; A monthly al- W. R. 542. lowance to a wife for the support 84. Camp. v. Camp, 158 Mich. and maintenance of a child is 221, 122 N. W. R. 521. "alimony" within the meaning of 85. Pingree v. Pingree, 170 Act No. 830, P. A. 1899, author- Mich. 36, 135 N. W. R. 923; izing the enforcement of a decree Adams v. Seibly, 115 Mich. 402, for alimony through imprison- 73 N. W. R. 377; Creyts v. Creyts, ment for contempt. Brown v. 143 Mich. 375, 106 N. W. R. 1111; Brown, 135 Mich. 141, 97 N. W. Shafer v. Shafer, 30 Mich. 163; R. 396. Seibly v. Ingham Circuit Judge, 86. Smith v. Smith, 139 Mich. 105 Mich. 583, 63 N. W. R. 528; 133, 102 N. W. R. 631. / f 254 \\llo .MAY Fll.i: KII.I. J.'Hio Iher directions. ;in allowance for alimony cannot afterwards be made/ 7 $361. Legitimacy of Children in Certain Cases -Adultery Former Spouse Living Non-Age. A divorce for iln* c;ni-r of adultery commit tod by the wife doe-* not ailed tin- legitimacy of the children of the marriage, and the legitimacy of such children, if questioned, may be dej- termined by the court upon the proofs heard in the cause. Tn every case the legitimacy of all children begotten before the commencement of the suit must lie presumed until the con- trary is shown. 88 Whenever a marriage is dissolved on account of a prior mar- riage of'eiiher party, and it shall appear that the second mar- riage \vas contracted in good faith, and with the full belief of the parties that the former wife or husband was dea$, that fact must he stated in the decree of divorce or annulment; and the Nsne of such second marriage, born or begotten be- fore the commencement of the suit, will be deemed to be the legitimate issue of the parent who, at the time of the mar ria^e. was capable of contracting. 89 I pon the dissolution of a marriage on account of non-age, in-anity or idiocy of either party, the issue of such marriage is deemed to be in all respects the legitimate issue of the parent who, at the time of the marriage, was capable of con- tracting. 90 362. Co-habitation after Divorce How Punished. If. after being divorced, the parties cohabit together with- out being remarried, they are liable to the penalties and pun- ishment provided by law against adultery. 91 This provision of the statute does not make the cohahitating parties guilty of the crime of adultery, but provides that the punishment for such cohabitation shall be the same as the law prescribes for adultery. / i 363. Who may File Bill tp Annul Marriage In Case of Non- Age Idiocy or Lunacy. A bill to annul a marriage on the ground that one of the 87. MoroBs v. Moross, 129 2nd. Ed.,, 911481. Mich. 27. 87 N. W. R. 1035. 90. C. L. '97, (11419) ; Howell, 88. C. L. 1915, (11418) ; Howell, 2nd. Ed.. $11480. 2nd. Ed. J11479. 91. C. L. 1915, (11421) ; Howell, 89. C. L. 1915. (11420); Howell, 2nd. Ed. 11482. 255 364 ACTIONS FOR DIVORCE AND ANNULMENT parties was under the age of legal consent at the time of the marriage was celebrated, may be exhibited by the parent or guardian entitled to the custody of such miiior ; or by the next friend of such minor ; but in no case can such marriage be an- nulled on the application of the party to the marriage who was of the legal age of consent at the time of the marriage, nor when it shall be made to appear that the parties, after they had attained the age of legal consent, had freely and vol- untarily cohabited as husband and wife. 92 A bill to annul a marriage on the ground of insanity or idiocy may be exhibited by any person admitted by the court to prosecute as the' next friend of such idiot or lunatic. 93 ,The marriage of a lunatic may also be declared void upon the ap- plication of the lunatic, after tho restoration of reason; but in such case no sentence of annulment can be pronounced by the court, if it shall appear that the parties freely cohabited as husband and wife after the lunatic was restored to a sound mind. 04 ' 364. Annulment Force or Fraud Denied When Custody of Children. A marriage cannot be annulled on the ground of force or fraud in the procurement of the marriage if it appears that, at any time prior to the commencement of the suit, there was a voluntary cohabitation of the parties as husband and wife. 95 When a marriage is dissolved or annulled on the ground of force or fraud in its procurement, the custody of the children of such marriage will be given to the innocent parent, and the court may also decree a provision for their support and educa- tion out of the estate and property of the guilty party. 96 365. Physical Incapacity Limitations. A suit to annul a marriage on the ground of the physical incapacity of one of the parties at the time of the marriage can be maintained only by the injured party, against the party whose incapacity is alleged, and must in all cases be 92. C. L. 1915, (11422) ; Howell, 95. C. L. 1915, (11425) ; Howell, 2nd. Ed., 11483; People v. Slack, 2nd. Ed., 11486; Leavitt v. Lea 15 Mich. 201. vitt, 13 Mich. 457; Sissung v. 93. C. L. 1915, (11423); Howell, Sissung, 65 Mich. 179, 31 N. W. 2nd. Ed., 11484. R. 770. 94. C. L. 1915, (11424) ; Howell, 96. C. L. 1915, (11426) ; Howell, 2nd. Ed. 11485. 2nd. Ed., 11487. 256 i-oritT .MAY MMNY KMMIMT brought within two years from flic time of the solemnization of the marriage. 07 366. Admissions and Confessions^ Testimony of Parties. ]So decree of divorce can be granted upon the declarations. Admissions or confessions of the parties alone, and in all cases the court must require other evidence of the facts alleged in the bill, but either may, if he or she elects, testify in relation to such facts; but the testimony of cither party to the action can be taken only in open court, and the testimony of the parties cannot be received in support or in defense of a charge of adultery. 88 ''Decrees of divorce by consent will not be en- tered, cither in the circuit or Sii|>renic Court. The court mn>t look into the testimony ami be satisfied that a legal cause for divorce exists." This statute refers i<, confessions and admissions, not to the testimony of a party as a witness. The circuit court has authority to require the defendant in a divorce case to testify. 1 If the testimony is clear and undisputed a decree of divorce may be granted upon the evidence of a complainant alone, but \\hen the court is compelled to rest a decree upon the testi- mony of the complainant it will only grant relief when the case is very clearly established. There is no arbitrary fixed rule which prevents granting a decree upon the testimony of the complainant alone, if the testimony of such complainant is of such a character as to satisfy the conscience of the court that the cause for divorce alleged in the bill is established. 2 367. Court may Deny Relief in Certain Cases of Adultery. "In any suit brought for divorce on the ground of adultery. although the fact of adultery be established, the court may deny a divorce in the following cases : l-'irxt, when the offense shall appear to have been committed by the procurement or with the connivance of the complain an! : 97. C. L. 1915. (11427); Howell, 1:5 Mich. 452; Dawson v. Dawson, 2nd. Ed., 11488. 18 Mich. 335. 98. C. L. 1915, (11428) ; Howell, 1. Rosecrance v. Rosecrance. 2nd Ed. 11489; Sawyer v. Saw- 127 Mich. 322, 86 N. W. R. 800. yer, Wai. Ch. 52. 2. Murphy v. Murphy, 150 99. Robinson v. Robinson, 16 Mich. 97, 113 N. W. R. 583; Rose- Mich. 79; Emmons v. Emmons. r ranee v. Rosecrance, 12 Mich. Wai. Ch. 532; Leavitt v. Leavitt, ?22; 86 N. W. R. 800. 257 368 ACTIONS FOR DIVORCE AND ANNULMENT Second, when the offense charged shall have been forgiven by the injured party, and such forgiveness be proved by ex- press proof, or by the voluntary cohabitation of the parties with knowledge of the offense; Third, when there shall have been no express forgiveness, and no voluntary cohabitation of the parties, but the suit shall not have been brought within five years after the discov- ery by the complainant of the offense charged." 3 Where the offense of adultery is committed by a husband or wife by the procurement or connivance of the other spouse, no divorce ought to be granted. A plaintiff in a divorce case, who by procurement or connivance has caused the defendant to. commit the offense, cannot be said to come before thff court with clean hands. The equitable maxim that one who seeks relief from a court of equity must come before the court with clean hands is as applicable to divorce cases as any other. Di- vorce laws are enacted for the relief of the innocent, not the guilty. 4 368. Forgiveness and Condonation. It is a rule of general application that forgiveness by the injured party of an offense which otherwise would constitute legal ground for divorce, will condone such offense, and such condonation may be either express, or implied from the acts and conduct of the parties. By a reconciliation of the parties and the resumption of marriage relations after the offense is committed, the acts re- lied on in the bill may be treated as condoned. Condonation may be defined as a parelon or forgiveness of a past wrong or fault which has occasioned a breach of some duty or obliga- tion. "It is not an absolute term which can be applied alike to all cases and all circumstances. Its application wiil vary as 4he offense said to have been condoned may vary. If the of- fense be adultery, then knqwledge of the fact, followed by co- habitation, is of itself condonation. 5 Condonation is a for- giveness, under a condition, express or implied, that the offense condoned shall not be repeated, and is founded upon full knowledge of all antecedent guilt. The term necessarily in- 3. C. L. 1915, (11429) ; Howell, 164 Mich. 638, 130 N. W. R. 194. 2nd. Ed. 11490. 5. 8 Cyc. p. 559; McClanahan 4. Hof v. Hoff, 48 Mich. 281, v. McClanahan, 104 Tenn. 217-228, 12 N. W. R. 160; Root v. Root, 56 S. W. R. 858. 258 1'IVOUCK FKo.M 1:1:11 AM) 1!I>LN 373 bibitiou is absolute, without the aid of an express provision in the decree to that effect. In this respect the Wisconsin stat- ute differs from that of Michigan. In Michigan, if the decree is silent on the subject the statute has no force. In Wisconsin it is held that the statute declares a public policy which will prevent the recognition by the courts of that state of a mar- riage between its citizens who go to another state to evade the provisions of the statute, and return to their former domicile after the ceremony. 14 Their ;nc other states whose laws provide that the guilty party, against whom a decree of divorce has been rendered, shall not remarry for a term of years, or for life, and such laws have generally been regarded merely as intended to fix and regulate the conduct of the divorced party within the state, and not as intended to follow him to another jurisdiction, and to prevent a marriage which would be lawful there; in other words they impose a penalty only local in its effect. Under this construction the remarriage of such guilty party in an- other state has generally been held valid, notwithstanding the prohibition of the local statute. 15 Statutes prohibiting marriage after divorce do not operate extraterritorially unless made to do so by express words or necessary implication, as has been frequently held in this country. 16 It is generally considered, however, that the weight of American authority, as well as reason and analogy, sustain the proposition that a marriage in another state, where it is valid according to the laws of that state, of a divorced person incapable of remarrying by the law of his domicile, will not be held void under the law of his domicile unless the statute expressly so provides, although he went outside the state of his domicile for the express purpose of evading the law, and immediately returned. 17 14. Lanhan v. Lanhan, 136 W. R. 39; Van Voorhis v. Baine- Wis. 360, 117 N. W. R. 787, 17 nail, 86 N. Y. 18, 40 Am. R. 505; L. R. A. (N. S.) 804, 128 Am. State v. Shattuck,. 69 Vt. 403, St. R. 1085. 40 L. R. A. 428, 60 Am. St. R, 15. Lanham v. Lanham, 136 936, 38 Atl. R. 81. Wis. 360, 117 N. W. R. 787. 17 16. Pennegar v. State, 87 Tenn. L. R. A. (N. S.) 804, 128 Am. 244, 2 L. R. A. 703, and cases St. R. 1085; In re Crane, 17 Mich. cited. 651, 136 N. W. R. 587; Frame v. 17. State v. Shattuck, 69 Vt. Thormann, 102 Wis. 654, 79 N. 403 L. R. A. 428. 263 374 ACTIONS FOR DIVORCB AND ANNULMENT 374. Dower Provision in Lieu of Tenants by Entireties. The legislature in 1909 enacted that "when any decree of divorce is hereafter granted in any of the courts of this state, it sh/ill be the duty of the court granting such decree to in- clude in it a provision in lieu of the dower of the w r ife in the property of the husband, and such provision shall be in full satisfaction of all claims that the wife may have in any prop- erty which the husband owns or ma"y thereafter own, or in .which lie may have an interest." 18 The same act also provides that "every husband and wife owning real estate as joint tenants or as tenants by entireties shall, upon being divorced, become tenants in common of such real estate, unless the ownership thereof is otherwise deter- mined by the decree of divorce." 19 In such cases, if the bill or any amendment thereto, or the answer or cross-bill, asks that the ownership of land described therein and owned by the parties as joint tenants, or as ten- ants by entireties, shall be determined by the decree of divorce it' granted, the court granting the decree may award such lands to one or the other of said parties, or any part of it to either of them, or may order such lands to be sold under the direction of a circuit court commissioner and the proceeds thereof divided between the parties in such proportion as the court shall order. Or the court may appoint commissioners to partition such lands between the parties in the proportions fixed by the decree. 20 Where a decree of divorce determines and fixes the owner- ship of real estate the decree should be recorded in the office of the register of deeds of the county in which such real estate is located. 21 The interest of a wife in lands held by herself and husband as tenants by entireties cannot be diminished by a decree of divorce. 22 375. Alimony When Decree Rendered in Another State. In all cases where a decree for alimony has been rendered by a court of competent jurisdiction in another state, in which 18. C. L. 1915, (11436) ; Howell, 2nd. Ed., 11499. 2nd Ed. 11496. 22. Delor v. Delor, 159 Mich. 19. C. L. 1915,. (H437) ; Howell, 624, 124- N. W. R. 540; Brown v. 2nd. Ed., 11497. Brown, 144 Mich. 654, 108 N. W. 20. C. L. 1915, (11438) ; Howell, R. 288; Brasch v. Brasch, 168 2nd, Ed., 11498. Mich' 459, 134 N. W. R. 450. 21. C. L. 1915, (11439) ; Howell, 264 KHillT OK 111 sr.AM> TO ALIMONY the parly against whom the decree \vas rendered appeared in the cause, or was personally served \villi process within the jurisdiction of the court, the alimony decreed upon linal hear- ing may be recovered in this state in an action at law. regard- less of whether such alimony is decreed to be paid' in install ments from time to time, or in one payment. When an action a! law is brought in this state to recover alimony decreed in another state, the defendant in such action may show that he has made a proper application to the court of the other state in which such decree was granted, for a re- duction of the amount decreed, or any further order in rela- tion thereto, and thereupon the court in which such action is pending in this stale may slay the proceedings therein on such terms as it may desire to impose. In cases where a judgment is rendered in any such action, all proceedings thereafter are stayed lor the period of sixty days, and if during such term i he defendant in such action in this state presents satisfac- tory evidence of a change in the decree of the courts of the other state, the judgment in this state may be altered or amended in such way as shall seem proper and just to the court. 23 i 376. Restoring Former Name to Wife. In all cases where a decree of divorce is granted, and there are no minor children, the issue of the marriage, the court, on the application of the wife, may make a decree to restore to her her maiden name, or the name she legally bore prior to her marriage to the husband in the divorce suit, or allow her to adopt another name. 24 The request for a change of her name may be made by the wife in her bill, answer, or cross-bill as the case may be, and the name which she desires to assume in case a decree of divorce is granted should be stated. / 377. Right of Husband to Alimony out of Wife's Property. In what has been said so far on the subject of alimony, ref- erence has been made only to the Michigan statutes. Without statutory authority courts have no jurisdiction to award ali- mony to a husband out of his wife's property. In Michigan neither the written nor the unwritten law jus- 23. C. L. 1915. (11440) ; Howell, 24. C. L. 1915. (11435) ; Howell. 2nd. Ed., 11500, 11501, 11502. 2nd. Ed., 11503. 265 377 ACTIONS FOR DIVORCE AND ANNULMENT tifies adjudging alimony to a former husband out of his di- vorced wife's property or earnings, no matter how great the necessities of the husband or the ability of the wife. It may be said in passing, however, that we are speaking of alimony strictly so-called, and not of division of property. As said by a standard text-writer "No instance could occur at common law in which the court would decree alimony to the husband; and in the absence of any statute creating such liability, the wife would not be liable to an action for alimony, although she is enabled by statute to hold and transfer real and personal property in her own name and right." 25 True, the commentator suggests that, under a system per- mitting a husband's property to be transferred to the wife, equitable considerations would seem to justify burdening the same with alimony in favor of the husband, but that is a mat- ter exclusively for the law-making power to deal with. In a Kansas case the court observed that there is no judicial authority for giving the husband alimony. "The domestic rela- tions will have to be readjusted by the legislature, and an ob- ligation cast upon the wife to support the husband before such an action can be maintained," 26 said the Court, speaking evi- dently of an obligation to so support after a decree of perma- nent separation. It must be remembered in this connection that permanent alimony, alimony after the dissolution of the marriage contract, is wholly a creation of written law. It was not known to the common law or to ecclesiastical law. One is liable to fall into some confusion in studying this subject, as perhaps some text writers have done, if he does not keep in mind the principles above alluded to, upon reading here and there in elementary works that alimony may be granted to a husband in a divorce proceeding, and referring without fur- ther comment to cases which were decided in accordance w r ith plain statutory provisions allowing such award. While no statutory provision has been made in Michigan and many of the other states, allowing an award to a former husband out of his divorced wife's property, such provisions have been made by legislative enactment in other states. In Massachusetts the statute provides that "when a divorce is de- creed for any of the causes mentioned in sections seven and ten, the court granting it may decree alimony to the wife, or 25. 2 Nelson, Div. and Sep. 26. Somers v. Somers, 39 Kan. 132, 17 Pac. R. 841. 266 KK.IITS <>r III Sl:.\M TII AI.IMo.NN 377 any share crsToi.\ OK CIIILKKKX 385 same le sold in the same manner ;is personal chattels are sold upon execution from courts of record. 16 385. Care and Custody of Children. Allowance May be Changed. In all proceedings brought pursuant to the statutory pro- visions referred to in the two preceding sections, the court may order and decree concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of (lie parties the children, or any of them, shall remain, and (luring the pendency of the proceedings, may assign and decree to the wife the possession of any of the real and personal estate of the husband, and the court may decree the payment of a fixed sum of money for the support of the wife and minor children, and may provide that the payment of the same be secured upon real estate, or otherwise, at such times and in such manner as may be proper, and may enforce the perform- ance of such decree by the sale of the real estate of the hus- band, or otherwise, as may be necessary. The court has pmver at all times to change the allowance made, from time to time, according to the circumstances, and may revoke such allowance altogether on satisfactory proof of a voluntary and permanent reconciliation. The allowance made under these provisions can continue only during the joint lives of the parties. 10 A petition or bill for the support of a wife separate from her husband ( will only be sustained when the reasons for it are imperative. If the court is satisfied that the difficulties be- tween the parties are not serious, or that there is a reason to believe that such difficulties may be adjusted, and the parties be reconciled, the bill should be dismissed. Especially is this true when there are young children for whom the parties ought to provide a home. 17 A proceeding of this character must be based upon a valid marriage between the parties to the suit, and such marriage must be proven the same as in an action for divorce. 18 Eighteen years delay in suing a husband for support where 15. C. L. 1915, (11480); Howell, 17. Davidson v. Davidson, 47 2nd Ed. 11535. Mich. 151, 10 N. W. R. 179. - 16. C. L. 1915, (11483); Howell, 18. Clancy v. Clancy, 66 Mich. 2nd Ed. J11533. 202. 33 N. W. R. 889. 277 386 HUSBAND AND WIFE X tlie wife is living apart from him is fatal to the suit even if the wife left him for good and sufficient cause. 19 386. Custody of Children When Husband and Wife Separate. Where a husband and wife, having minor children separate, the statute provides that the mother shall be entitled to the care and custody of all such children under the age of twelve years, and the father shall be entitled to the care and custody of all such children of the age of twelve years or over. In such case, however, the Probate Court or any court of com- petent jurisdiction may, on a proper application and hearing, make and enforce such order or orders as it may deem just and proper as to the care and custody Of such minor children, except in cases where an order or decree may have been made by any court in chancery regarding such children. 20 This statute will not be construed as fixing an absolute right to the care and custody of the children in either parent. It simply fixes a rule, directory only, providing which parent may be given the care and custody of children of certain ages, where no reason is made to appear for a different determina- tion. The paramount consideration is, what is really demand- ed for the best interests of the children. Neither of the parents has any right to the custody of a child, if such qustody would seriously militate against its welfare. The court may in its discretion commit the custody of the child or children to either parent. 21 387. Legal Impediment to Marriage as Bar to Actions for Damages. Prior to 1905, a wife who sought to recover damages for negligent injuries to her husband or a husband who sought to recover damages for negligent injuries to his wife must show a legal marriage and the legal relation of husband and wife in order to maintain such action for damages. 22 In 1905, the legislature passed an act entitled "An act ex- / 19. Reed v. Reed, 52 Mich. 117, 2nd Ed. 11537. 17 N. W. R. 720. A valid mar- 21. Corrie v. Corrie, 42 Mich, riage and the relation of husband 509, 4 N. W. R. 213; Klein v. and wife are prerequisites to * Klein, 47 Mich. 518, 11 N. W. R. such proceedings. Judson v. Jud- 367; In re Knott, 162 Mich. 10, son, 171 Mich. 190, 137 N. W. R. 126 N. W. R. 1040. 163. 22. Philip v. Heraty, 135 Mich. 20. C. L. 1915, (11484) ; Howell, 446, 99 N. W. R. 963. 278 PI MSI I. Mi: NT OF HUSBAND FOR DESERTION 388 the ri^ln of union I'm- damages heretofore or hereafter sustained ihronuh the negligent act or omission of another, causing death or injury to the issue of the marriage relation and to the party thereto entering such relation in good faith, and providing damages for such act or omission." The text of this act provided that "in any action for damages heretofore or hereafter sustained by either party to the mar- riage relation or the issue thereof, arising from the negligent act or omission of another, causing death or injury, it shall be no bar to such action that legal impediment existed to the lawful marriage of either such party, at the time the marriage relation was assumed, but a right of action shall exist in favor of such issue and the party to suqh relation entering the same in good faith, and such issue and pdrty shall be entitled to the same damages as though such impediment had not existed." : This act has been held unconstitutional, only so far as it relates to injury or death occurring prior to the time the act took effect.- 4 388. Punishment of Husband for Desertion. A husband who deserts Kis wife, and any person who deserts his minor children, under fifteen years of age, and without pro- viding proper shelter, food, care and clothing for them, is guilty of a felony, and upon conviction may be punished by imprison- ment in the State Prison for not more than three years nor less than one year; or by imprisonment in the county jail not more than one year and not less than three months. If at any time before sentence the*defendant shall enter into ti bond to the people of the state of Michigan, in such penal sum and with such surety or sureties as the court may direct and fix, condi- tioned that he will furnish his wife and children with necessary and proper shelter, food, care and clothing, the court may sus- pend sentence. If such bond is given and the defendant fails to comply with its conditions he may be ordered to appear before the court and show cause, if any exists, why sentence should not be imposed, and the court may then pass sentence, or for good cause shown may modify the order and take a new bond or undertaking, and further suspend sentence. 25 If a person is convicted under this act and sentenced to a 23. P. A. 1905, Act. No. 280, 473, 111 N. W. R. 93. Howell, 2nd E. 11538; C. L. 1915, 25. 1907, No. 144, Howell, 2nd ( ). Ed. 11539; C. L. 1915, (11484). 24. Philip v. Heraty, 147 Mich. 279 388 HUSBAND AND WIFE term of imprisonment in either of the state prisons or in the Detroit House of Correction, the warden of the prison in which such person is confined, or the Superintendent of the Detroit House of Correction shall, at the end of each we.ek during such term of imprisonment, pay over to the proper Superintendent of the Poor the sum of one dollar and fifty cents per week, if there be only a wife, and fifty cents per week additional for each minor child under- the age of fifteen years, in lieu of any earnings of such person while an inmate of the State Prison or the Detroit House of Correction under such sentence. The sums so paid are to be expended by the Superintendent of the Poor for the care and support of the wife and children of such person, as the case may be. 26 On the hearing of any complaint under this statute the wife may testify against the husband without his consent, and she may make th.e complaint in the first instance, although the statute does not in express terms authorize her to do so. The general rule that one who is a competent witness and has knowledge of the facts may make complaint in a criminal case permits the wife to be the complaining witness in a prose- cution against her husband, instituted under the provisions of this act. 27 Abandonment or desertion as used in this act means to separate from, wrongfully, without intention to return and resume marital relations, and it is wilful abandonment or desertion without just cause which is the essence of the offense. That the husband is unable to provide for his family, that the wife is able to earn a living, or that her friends or relations will keep her from want will not constitute an excuse or de- 1 fense of a wilful abandonment. Neither is the resulting burden to the public an element of the offense. 28 This statute does not violate section 21 of article 5 of the Constitution, which provides that "No law shall embrace more than one object, which shall be expressed in its title." 26. 1907, No. 144, 2; Howell, 557, 121 N. W. R. 497; People v. 2nd. Ed. 11540; C. L. 1915, ( ). Malsch, 119 Mich. 112, 77 N. W. 27. People v. Stickle, 156 Mich. R. 638; Warner v. Warner, 54 558, 121 N. W. R. 497; State v. Mich. 492, 20 N. W. R. 557; Place Giles, 101 Me. 349; State v. Wood- v. Place, 139 Mich. 509, 102 N. W. mansee, 19 R. I. 651; State v. R. 996; Johnson v. Johnson, 125 Newberry, 48 Mo. 429; People v. Mich. 671, 85 N. W. R. 94; Rose Sebring, 66 Mich. 705, 33 N. W. v. Rose, 50 Mich. 92, 14 N. W. R. R. 808. 711; Cox v. Cox, 35 Mich. 46. 28. People v. Stickle, 156 Mich. 280 CERTAIN win: M:SI:I:TIO.\ The provision of section one of the act authorizing the court to suspend sentence confers no new power upon the coin-is, and it c;iuiiol IK- construed ;is giving to the courl ;i pardoning power which belongs exclusively to the executive branch of state government. The power to suspend sentence and the power to grant reprieves and pardons are distinct :md dif- ferent in origin and nature." The power of courts to suspend sentence has always been considered a judicial function. It was exercised long before the adoption of the first constitution of the state and has frequently been exercised since. 20 389. Certain Wife Desertion Felony^-Limitations. The statute also provides that "Any man or boy who marries a woman or girl for the purpose of escaping prosecution for rape, bastardy, or seduction, and shall afterwards desert her without good cause, shall be deemed guilty of a felony, and shall, upon conviction, be fined not more than one thousand dollars, or be imprisoned in the state prison for not more than three years: /Vor/V/rr/, That no prosecution shall be brought under this act after live years from the date of the manage." Neither this statute nor Act No, 144 of the Public Acts of 1!07 are applicable to a desertion before the law took effeci. 29. Hawk. P. C. Ch. 51, 8; Bishop Crim Proc. (2nd ed.) Sec. 1124; 4 Blackstone, Chap. 31; Commonwealth v. Dowdigan, 115 Mass. 136; Weaver v. People,- 33 Mich. 296; People v. Reilly, 53 Mich. 260, 18 N. W. R. 849; Peo- ple ex. rel. Forsyth v. Court of Sessions, 1 41 N. Y. 288, in which it is said: "The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities, remain and be- come operative when judgment is rendered. A pardon reaches both the pun- ishment prescribed for the of- fense and the guflt of the offend- er. It releases the punishment and blots out v of existence the guilt of the offender so that in the eye of the law he is as innocent as if he had never committed the offense. People v. Stickle, 156 Mich. 564, 121 N. W. R. 497. 30. P. A. 1907, Act No. 284, Howell, 2nd" Ed. 1154; C. L. 1919, 31. People v. Albright, Mich. 400, 126 N. W. R. 432. 161 281 PART FOUR. PLEADING AND PRACTICE. PART FOUR PRACTICE AND PLEADING; Chapter XXXIII. Suits for Divorce. Chapter XXXIV. Bringing the Defendant into Court. Chapter XXXV. Proceedings after Appearance of De- fendant. Chapter XXXVI. Proceedings after Issue Joined or De- fault Entered. Chapter XXXVII. Other Interlocutory Proceedings. Chapter XXXVIII. Motions and Affidavits. Chapter XXXIX. Hearing and Decree. (Chapter XL. Powers and Duties of Prosecuting At- torneys in Divorce Cases. Chapter XLI. Appeals to Supreme Court. < -HAITI:!; xxxiri. SUITS FOR DIVORCE. 390. Jurisdiction. 391. The Bill of Complaint. 392. Defendant's Domicile. 393. Minor Children. 394. Causes for Divorce Adultery Extreme Cruelty. 395. Physical Incompetency. 396. Sentence to Imprisonment Desertion. 397. Habitual Drunkenness Divorce in Another State. 398. Failure of the Husband to Support the Wife. 399. General Form of the Bill. 400. Verification of Bills for Divorce. 401. Divorce Suits How Commenced and Conducted. 402. Suit to Annul Marriage How Brought. 403. Form of Bill to Annul Marriage. 404. Suits to Affirm a Marriage. 390. Jurisdiction. Suits for divorce must be commenced in the circuit court for the county where the parties or one of them resides. The statute provides that a divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties, or one of them, resides, or by the court of chancery, upon application by bill or petition of the aggrieved party. It appears to be the universal practice, to commence divorce suits in the court of chancery by bill of complaint. 391. The Bill of Complaint. The bill of complaint should be addressed to the circuit court in chancery' of the county where the suit is commenced. The names and places of residence of both plaintiff and defend ant should be stated, so that the court may know from the allegations of the bill whether or not it has jurisdiction of the parties. The party applying -for the divorce should be designated plaintiff, and the party against whom the apjli< a tion is made should be designated defendant. 2 1. C. L. 1915, (11397); Howell, mins & Beecher's Mich Judicature 2nd ed. 11458. Act, 475. 2. C. L. 1915, (12352); Cum- 285 392 SUITS FOR DIVORCE The bill should also state the length of time the plaintiff has resided in the state. Unless the marriage was solemnized in this state, the plaintiff must have resided in the state one full year before commencing suit, and that fact must be stated in the bill. If the marriage was solemnized in this state, the bill must show that the plaintiff has resided in the state one year or more next preceding the time of filing the bill, or con- tinuously since the marriage. If the cause for divorce charged in the bill occurred out of the state, the bill must show that the plaintiff or defendant, one or both of them, have resided in this state for the period of two years immediately preceding the filing of the bill. 3 392. Defendant's Domicile. The bill should also state that the defendant was domiciled in this state at the time it was filed, or that he was domiciled in the state at the time the cause of action arose. If at the time of filing the bill the defendant has a domicile in another state or country, such domicile should be stated in the bill if known to the plaintiff.* 393. Minor Children. If one or more minor children of the marriage are living at the time of , filing the bill, such fact . must be stated in the bill, and the name, age, and place of residence of each given. Although not absolutely necessary, it is proper and advisable to state in the bill in whose custody the minor children are. If the plaintiff desires the custody and control of the minor children of the marriage it should be so stated in the bill. 394. Causes for Divorce Adultery Extreme Cruelty. The grounds or causes for divorce, for which a decree is sought, should be clearly and concisely stated in the bill, and it must be for some cause provided for by the statute. If the charge made by the plaintiff is extreme cruelty, it is not enough to state in the language of the statute that the defendant has been guilty of extreme cruelty toward the plain- tiff. The bill should state the particular acts, conduct or lan- guage which it is claimed constitute cause for divorce, and, with reasonable particularity, the time and place of their oc- currence. 3. C. L. 1915, (11400) ; Howell, 4. C. L. 1915, (11400) ; Howell, 2nd ed. 11461. 2nd ed. 11461. 286 si:\Ti:\ri: T<> i M I-KISO.N . \IKNT 39G I!' Hit- charge made is adultery, the bill should state the tunic of ilic person with whom the adultery is alleged to have been commit led, it known, and the time when and the place where the act was committed. 1 The hill must also allege that the plaintiff lias never been guilty of adultery. In proceedings for divorce on the ground of adultery, in- flexible adherence must he observed to the forms and practice prescribed for the attainment of justice in courts of equity. An allegation is suflicient that states that the defendant lives "in open and notorious adultery," naming the time, place, and name of the partv with whom the adultery is alleged to have been committed. 7 If the name of the person with whom the defendant is al- leged to have committed the adultery is unknown to the plain- tiff and cannot be ascertained, that fact should be stated in the bill, and the particular act complained of identified by such circumstances of time and place as will enable the de- fendant to know with reasonable certainty the particular act charged. An allegation supported by proof of a single act of adultery is sufficient, and the charge may be proved by circum- stantial evidence. 8 395. Physical Incompetency. If the cause for divorce alleged in the bill is physical in- competency, it must be stated that the plaintiff did not know of such in competency at the time of the marriage. The bill should also state the particular character of the alleged physi- cal incompetency or im potency alleged ; that the same still exists at the time of filing the bill; that it is incurable; and that it makes the defendant incapable of consummating the marriage by sexual intercourse. 396. Sentence to Imprisonment Desertion. A bill asking for a divorce on the ground that the defend- ant has been sentenced to imprisonment for three years or more should state the court which imposed the sentence, the length of time, and the prison, jail or house of correction to which the defendant was sentenced. 5. Dunn v. Dunn, 11 Mich. 284; 6. Green v. Green, 26 Mich. Shoemaker v. Shoemaker, 20 Mich. 440. 222; Bennett v. Bennett, 24 Mich. 7. Marble v. Marble, 36 Mich. 482; Green v. Green, 26 Mich. 386. 437; Randall v. Randall, 31 Mich. 8. Marble v. Marble, 36 Mich. 194; Herrick v. Herrick, 31 Mich. 386. 298. 287 397 SUITS FOR DIVORCE If the cause for which divorce is sought is desertion, it is not sufficient to allege simply that the defendant deserted the plaintiff at a particular time and place. The plaintiff must allege specifically that the desertion or abandonment was wil- ful and intentional: that it was without cause; that it was against the wish of the plaintiff; and that it has continued uninterruptedly for the period of two years or more next pre- ceding the time of filing the bill. 9 In other words, the bill must show a total cessation of cohabitation for the period of two years or more, an intent on the part of the defendant to desert the plaintiff, and a separation against the will of the plaintiff: and that such separation was without cause. 10 397. Habitual Drunkenness : Divorce in Another State. A bill which claims a decree of divorce on the ground that the defendant has become an habitual drunkard must show that he has become an habitual drunkard since the marriage. The statutory provision is that an absolute divorce may be granted "when the husband or wife has become an habitual drunkard." 11 In such case the plaintiff should allege speci- fically that the defendant has become an habitual drunkard since the marriage was solemnized, or if he was an habitual drunkard before the marriage, it must be shown that such fact was concealed from, or at least unknown to, the plaintiff at the time of the marriage. 12 If the application is made on the ground that the defend- ant has obtained a divorce in another state or country, the bill must show that the plaintiff is a resident of this state, and also show the state or conn try and the court in which such divorce was granted. 13 398. Failure of the Husband to Support the Wife. The statute provides that a divorce from bed and board forever, or for a limited time, may be decreed "on the com- 9. C. L. 1915, (11397); Howell, 14 N. W. R. 696; Ru'dd v. Rudd, 2nd ed. 11458, Sub. 4; Warner v. 33 Mich. 101. Warner, 54 Mich. 492, 20 N. W. 11. C. L. 1915, (11397) ; Howell, R. 557; Wright v. Wright, 80 2nd ed. 11458, Sup. 5. Mich. 572, 45 N. W. R. 365. 12. Porritt v. Porritt, 16 Mich. 10. Rose v. Rose, 50 Mich. 92, 441. 14 N. W. R. 711; Cooper v. Cooper, 13. C. L. 1915, (11397) ; Howell, 17 Mich. 210; Porritt v. Porritt, 2nd ed. 11458, Sub. 6; People v. 18 Mich. 424; Cox v. Cox, 35 Mich. Dawell, 25 Mich. 254. 463; Seller v. Beller, 50 Mich. 51, 288 <;i: \KK.\I. KOKM or THI: MILL 3U9 plaint of the wife, when the husband, being of snllicient ability to provide a suitable maintenance for his wife, shall grossly. or wantonly and cruelly, refuse or neglect to do so." 14 The next section of tlie statute provides that a divorce from the bonds of matrimony, or an absolute divorce, may be decreed for the same cause "whenever in the opinion of the court the circumstances of the case shall be such that it will be discreet and proper so to do; but no divorce from the bonds of matri- mony for either of the causes mentioned in the preceding sec- tion shall be entered in any case where the same is not asked for by the plaintiff in the bill of complaint filed therein, or by the defendant in a cross-bill, unless the court hearing the evi- dence shall deem it for the best interest of the parties to grant a divorce from the bonds of matrimony, and in that event the court may grant such divorce." 15 The bill in such a case should allege that the husband is of sufficient ability to support his wife and provide a suitable maintenance for her; and it should state such facts as to the pecuniary circumstances of the husband as will have a ten- demy to show such ability. It is sufficient if the bill alleges the neglect and refusal, in the language of the statute, but the ability of the husband should be shown by stating such facts as will enable the court to determine whether or not such ability exists, if the facts alleged are true. 16 If the bill is filed for the purpose of procuring a divorce from bed and board, or limited divorce, the prayer of the lull should so state, and if a divorce from the bonds of matri- mony is desired it should be expressly stated in the prayer for relief. 17 399. General Form of the Bill. In divorce cases the general frame or form of the bill, with a few exceptions, is the same as in other chancery cases. The preparation and filing of the bill of complaint is tin- first step in the suit. The bill must be addressed to the circuit court for the proper county, in chancery, and must be signed by the plaint ill' or his agent or attorney. It must be divided into paragraphs, numbered consecutively, and each paragraph should contain, as nearly as may be, a separate and distinct 14. C. L. 1915, (11398) ; Howell. 16. Brown v. Brown. 22 Mich. 2nd ed. 511452. 245; Ward v. Ward, 20 Wis. 252. 15. C. L. 1915, (U399) ; Howell, 17. C. L. 1915, (11399) ; Howell, ed. 11460. 2nd ed. 11460. 289 400 SUITS FOR DIVORCE allegation. The prayer must also be divided into paragraphs, numbered consecutively, and must specify the particular relief to which the plaintiff considers himself entitled, and may also contain a prayer for general relief. The prayer for process to bring the defendant into court, . formerly required, may be omitted, and the plaintiff is entitled to such process on filing the bill, and to other necessary pro- cess when ordered by competent authority. If the plaintiff desires a temporary or permanent injunction to be issued, the bill should state the facts authorizing the writ and pray that it may be issued, and if temporary or preliminary relief is desired by way of injunction, the judge of the court must endorse on the bill an order for that purpose. A bill of com- plaint which does not comply with the rule in respect to being divided into paragraphs, numbered consecutively, will be stricken from the files on motion, unless the court in its dis- cretion shall deem it proper to allow an amendment to cure the defect. Good pleading also requires that needless repetition, such as "and the plaintiff further shows unto the court," should be avoided. 18 400. Verification of Bills for Divorce. All bills for divorce are required to be verified by the oath / of the plaintiff, or in the case of his absence from the state, or other sufficient cause shown, by the oath of his agent, at- torney or counsellor. The several matters stated in the bill should be stated positively, or upon information and belief only, as the fact may be. The oath administered to the party must be, in substance, that he has read the bill, or has heard it read, and knows the contents thereof, and that the same is true of his own knowl- edge, except as to the matters which are therein stated to be upon his information and belief, and as to those matters he believes it to be true; and the substance of the oath must be stated in the jurat. 19 The oath must also contain the following: "And" you do 18. New Mich. C. C. Rules, No. R. 1063; Southern v. Byles, 67 24. Among the cases having a Mich. 296, 34 N. W. R. 702. bearing on this subject, but which 19. C. C. Rule No. 27; Gum- do not particularly construe the mins & Beecher's Mich. Rule Book rule are the following: Spring v. page 602. Randall, 107 Mich. 103, 64 N. W. 290' SUIT TO ANNTl. .\lAi;i:i.\(,i: 402 solemnly s\vear i or atlirm i that there is no rollusiou, under- standing or agreement whatever, between yourself and tilt- defendant herein, in relation to your application for a di- vorce." 20 This provision is mandatory and is based on public policy, which forbids divorce by agreement of the parties. 21 The bill must allege, on oath, that the causes for divorce charged were all committed without the consent, connivance, privity or agreement of the plaintiff; 22 hence if any fact is introduced into the bill by way of amendment, to meet this requirement the bill must be sworn to again. 23 A divorce will not be granted where the plaintiff is guilty of the same crime or misconduct as that charged against the defendant; therefore the bill should allege that the plaintiff has not been guilty of any such crime or misconduct as is charged against the defendant. 24 401. Divorce Suits -How Commenced and Conducted. Suits, for divorce and suits to annul or affirm a marriage are commenced and conducted practically in the same manner as other suits in courts of equity, and the court has power to award issues, to decree costs and to enforce its orders and decrees to the same extent and in the same manner as in other causes. 402. Suit to Annul Marriage How Brought. When a marriage is supposed to be void, or there arises doubt as to its validity, either party may file a bill in the cir- cuit court for the county where the parties or one of them 20. C. L. 1915, (11401); Howell, risen, 64 Mich. 53, 30 N. W. R. 2nd ed. 11462. 93, Minde v. Minde, 65 Mich. 633, 21. Thompson v. Thompson, 70 32 N. W. R. 868; Peck v. Peck, Mich. 62, 37 N. W. R. 710; Ayres 66 Mich. 586, 33 N. W. R. 893; v. Wayne Circuit Judge, 90 Mich. Sissung v. Sissung, 65 Mich. 179, 380, fcl N. W. R. 461; McWilliams 31 N. W. R. 770; Kellog v. Kellog, v. Circuit Judge, 142 Mich. 226. 171 Mich. 518, 137 N. W. R. 249. 105 N. W. R. 611. 25. C. L. 1915, (11403); Howell, 22. Briggs v. Briggs, 20 Mich. 2nd ed. 11464; Sawyer v. Sawyer, 40. Walk. Ch. 48; Entry of Decree 23. Green v. Green, 26 Mich. Nunc pro Tune; Newton v. New- 437. ton, 166 Mich. 421, 132 N. W. R. 24. C. L. 1915, (11401); Howell, 91. Modification of Decree: Mey- 2nd ed. 811462; Warner v. WFT- era v. Meyers, 161 Mich. 48?, 126 ner, 54 Mich. 494, 20 N. W. R. N. W. R. 841. Amendment of Bill. 557; Hoff v. Hoff, 48 Mich. 281, Schafberg v. Schafberg, 52 Mich. 12 N. W. R. 160; Morrison v. Mor- 421, 18 N. W. R. 202. 291 404 SUITS FOR DIVORCE resides, or in the court of chancery, for annulling the same. The bill is required to be filed, and proceedings had thereon, substantially the same as in the case of a bill filed in the same court for a divorce, and upon due proof of the invalidity of the marriage it will be declared void by a decree or sentence of annulment. 26 But no marriage can be annulled on the ground of force or fraud, if it is made to appear that at any time before the commencement of the suit the parties have voluntarily co- habited as husband and wife. 27 Nor can the marriage *of a lunatic be decreed to be void, if it is made to appear that the parties freely and voluntarily cohabited as husband and wife after the lunatic was restored to a sound mind. 27 403. Form of Bill to Annul Marriage. The formal parts of a bill to annul a marriage are sub' stantially the same as a bill for divorce. If any children have been born of the supposed void marriage their names and ages should be stated substantially the same as in a bill for divorce. If the bill is filed by the wife it should be in the name which she bore prior to the marriage. And it would seem that if the bill is filed by the husband to annul a void marriage it should be against the wife in the name by which she was known prior to the marriage. The reasons which are supposed to make the marriage void should be clearly and distinctly stated in the bill, and they must be such as the statute specifically mentions as sufficient to render the marriage void. No presumption against the validity of the marriage can be indulged. No action can be brought to annul a marriage on the ground of the physical incapacity of one of the parties unless brought within two years from the solemnization of the mar- riage, and such suit can be maintained only by the injured party. 28 404. Suits to Affirm a Marriage. A bill to affirm a marriage may be filed when the marriage is denied or doubted by one of the parties. The bill must be filed by the party who asserts the validity of the marriage. 26.* C. L. 1915, (11395) ;,Howell, 27. C. L. 1915, (11427) ; Howell, 2nd ed. 11455, C. L. '97, (8649); 2nd ed. 11485. Howell, 2nd ed. 11486. 28. C. L. 1915, (11427) ; Howell, 2nd ed. 11488. 292 SUITS TO AFFIRM A MARRIAGE 404 The bill is filed and the proceedings had thereon in the same manner as in divorce and annulment cases. Upon satisfactory proof of the validity of the marriage, the court will make a decree declaring the marriage valid, and unless reversed on appeal, such decree is conclusive upon all persons concerned or interested. 29 The bill should state the nanies^ ages and places of residence of the parties, the date of the marriage, the place where and the manner in which the marriage was solemnized, substanti- ally the same as in a bill for divorce. If children have been born of the marriage their names and ages should be stated. The fact that the defendant denies the validity of the marriage must be stated, and the time, place and occasion of such denial should be made known to the court by the allegations of the bill. If the plaintiff bases his claim upon a valid mar- riage in another state, solemnized in the form prescribed by the statute of that state, the bill should state the time when, the place where, and the person by whom the marriage was solemnized, and the official capacity of the person who per- formed the ceremony. If tli<- claim is based upon a valid com- mon law marriage, the bill must state that at a certain time and place, naming them, the parties presently promised and agreed to take each other for husband and wife, and to live together in that relation, and that in pursuance of that aui nic-iit, and for the purpose of consummating the same, they actually did live and cohabit as husband and wife. 80 29. C. L. 1915, (11395) ; Howell, 30. Judson v. Judson, 147 2nd ed. 11456. Mich. 518, 111 N. W. R. 78. 293 CHAPTER XXXIV. BRINGING THE DEFENDANT INTO COURT. 405. Summons Form and Contents. 406. Summons How and When Served. 407. Substituted Service. 408. Affidavit for Order of Publication. 409. Form of Affidavit. 410. Appearance of the Defendant. 405. Summons Form and Contents. Upon filing the bill of complaint in the office of the clerk of the court, and paying an entry fee of three dollars, the plain- tiff is entitled to a chancery summons, and to other process when ordered by competent authority. 1 The summons must notify the plaintiff that a bill of complaint has been filed against him by the plaintiff, naming him, and that if he de- sires to defend the same he is required to cause his appearance to be filed in the cause, in accordance with the rules and prac- tice of the court, and the statute in such case made and pro- vided, in person or by attorney, within fifteen days after ser- , vice of the summons upon him ; and the return day thereof must be indicated at the foot of the summons. The under- writing must designate against which defendant a personal decree is asked, and in divorce cases the underwriting must state whether alimony or custody of children is prayed for in the bill. 2 406. Summons How and When Served. The summons must be served by delivering a copy to the de- fendant, subscribed by the plaintiff, his attorney, or'tlie officer or person serving the same, and inscribed "copy," and show- ing the original under the seal of the court to the defendant at the time of such delivery. The service may be on or before 1. C. L. 1915, (12408) ; Cum- Book, page 584. The writ may mins & Beechers Mich. Judicature be signed by the deputy clerk in Act 531. his own name; Colton v. Rupert, 2. C. C. Rules 1916, No. 19; 60 Mich. 320, 27 N. W. R. 520; Cummins & Beecher's Mich Rule Calender v. Olcott. 1 Mich. 344. 294 SUBSTITUTED SERVICE 407 the return day mentioned, but not afterwards. 3 It may be served by any sheriff, under sheriff or deputy sheriff, or by any person of suitable age and discretion. Proof of such ser- vice must be made by the affidavit of the person who makes the service, except when such service is made by an officer of the court authorized to serve process, in which case the certifi- cate of the oilicer who makes the service is sufficient proof thereof. 4 Service may be made in any county of this state where the defendant may be found. 8 If there are minor chil- dren it must be served on the prosecuting att6rney of the county where the suit is pending. 407. Substituted Service. In cei-tain cases where it is made to appear that personal service cannot be had within this state, the statute and rules of practice provide for a substituted service. In such cases an application may be made to the circuit judge or a circuit court commissioner for an order for the appearance of the defendant. The application must be made by affidavit of some person who has knowledge of the facts, and may be made at the time of filing the bill or at any time thereafter. The order, if made, requires the defendant to appear within three months from the date of the order. Such order can only be made upon proof by affidavit of some one of the following facts: firxt ; that the defendant resides out of the state: second; that the defendant is a resident of this state, and that a summons for his appearance has been duly issued and that the same could not be served by reason of the absence of the defendant from the state, or his concealment therein, or by reason of his continued absence from his place of residence: or. third; that it cannot be ascertained in what state or country the defend- ant resides. 6 Within twenty days after the order is made it must be published in some newspaper printed in the county where the suit is pending, or in such other paper as the court may direct, and such publication continued once in each week for six successive weeks: but such publication will not be necessary in any case in which a copy of such order shall have been served personally on such absent, concealed or non-resi- 3. C. C. Rules No. 19, Sec. 2; 5. C. L. 1915, (12425); Cum- Cummins & Beecher's Mich Rule mins & Beecher's Mich. Judica- Book, page 584. ture Act. 548. 4. C. L. 1915, (12405); Cum- 6. C. L. 1915, (12449); Cum- mins & Beecher's Mich. Judica- mins & Beecher's Mich. Judica- ture Act. 528. ture Act, 572. 295 408 BRINGING DEPENDANT INTO COURT dent defendant at least twenty days before the expiration of the time prescribed for the appearance of the defendant. Proof of such publication or service must be made. 7 The court, when necessary, upon motion or petition of the plaintiff, may by further order extend the time for appearance of the de- fendant, and in such a case will direct the publication of such further order "for such time as it may think proper. 8 In all cases where such order for the appearance of the defendant is made, a certified copy of the same must also be mailed to the defendant at his last known post office address, by registered mail, and a return receipt demanded, and proof by affidavit of such mailing must be filed, showing whether a return receipt has been received, and- if one was received it must be attached to the affidavit. 9 408. Affidavit for Order of Publication. If -the defendant is a resident of another state, the affidavit must show not only the fact of non-residence, but it must show the place of residence of the defendant, if known. If the state, or the particular place in the state where the defendant re- sides is not known, the affidavit should show what efforts have been made to ascertain his place of residence, and that such place cannot be ascertained. If the defendant is a resident of this state, a summons must be issued and returned not served, and the reasons for not serving it nlust be shown by the return, and such reasons must be such as the law recognizes as sufficient to authorize the court to make the order of publication. The statute authoriz- ing substituted service must be strictly construed and fully complied with. The rule is \yell established that all excep- tional methods of service and 'of obtaining jurisdiction over 7., C. L. 1915, (12450); Cum- 515, 60 N. W. R. 52; Schoenfeld mins & Beecher's Mich. Judica- v. Bourne, 159 Mich. 139, 123 N. ture Act, 573. All exceptional W. R. 537. As to sufficiency of methods of obtaining jurisdiction the affidavit for the order see over persons not found within the Platt v. Stewart, 10 i Mich. 260; state, must be confined to the Torrans v. Hicks, 32 Mich. 307. cases, and exercised precisely in 8. C. L. 1915, (12451) ; Cum- the way provided for by the stat- mins & Beecher's Mich. Judica- ute; Thompson v. Thomas, li ture Act, $574. Mich. 274; Steere v. Vanderberg, 9. C. L. 1915, (1124661 ; Cum- 67 Mich. 530, 35 N. W. R. 110; mins & Beecher's Mich. Judica- Montgomery v. Merrill, 36 Mich. ture Act, 587. 97; Jaffray v. Jennings, 101 Mich. 296 roi:\i <>r AI Kii'.YViT ; !<>! I persons nnt>t lie confined to the cases prescribed by the stat- ute, and must be exercised hi tin 1 precise manner which the statute points out. 10 The statute clearly and distinctly re- i|itires that the cause for issuing the order must he made out by proof, and such proof must be made by some one who testi- fies on his own responsibility, and the process must he issued and diligent efforts made to serve it during Ihe entire time qjllowed for service. 11 ' 409. Form of Affidavit. The affidavit must be entitled* with the names of both plain tiff and defendant. 12 It may be made as soon as the bill is tiled, but not before. 13 Itmust state facts of inquiry and in- formation upon which is based the conclusion therein express- ed. that the defendant is absent from, or concealed within the state. 14 It must be made at or about the time the order is granted. Such an affidavit made five days before making an order for the appearance of an absent or non-resident defendant will not authorize the making of the order. The latter must be made upon facts existing at the time it is made, and it must state such facts as are stated in the affidavit as will show a statutory reason for making it. When made, on a proper af- fidavit, the order- is an adjudication that the statutory cause existed at the time it was made. Consequently the affidavit must make a prima facie case, without which the order will be invalid, but the degree of proof is not subject to review. 1 i 10. Platt v. Stewart, 10 Mich. 13. Gordon v. Tyler, 53 Mich. 260; King v. Harrington, 14 Mich. 70. 532; Merrill v. Montgomery, 25 631, 19 N. W. R. 560, 20 N. W. R. Mich. 73; People v. Dawell, 25 14. Thompson v. Judge, 54 Mich. 269; Hartford Ins. Co. v. Mich. 236, 19 N. W. R. 967. Owen, 30 Mich. 441; Dennison v. 15. N. Y. Baptist Union v. At- Smith. 33 Mich. 155; Hebel v. Am- well, 95 Mich. 239, 54 N. W. R. azon Ins. Co., 33 Mich. 400; Mont- 460; Adams v. Circuit Judge, 98 gomery v. Merrill, 36 Mich. 101; Mich. 53, 56 N. W. R. 105; The Dewey. v. Central Car Co., 42 affidavit may be made upon infor- Mich. 403, 4 N. W. R. 179; Colton mation and belief, but it should v. Rupert, 60 Mich. 318, 27 N. W. give the name of the informant, R. 520; Morrison v. Morrison, 64 or the source from which the in- Mich. 53, 30 N. W. R. 903; Adams formation is derived; yet if the , v. Judge, 98 Mich. 52, 56 N. W. R. affidavit contains some evidence 1051; of the fact necessary to be estab- 11. Sowie v. Hough, 45 Mich, 'lished it will be sufficient to give 420, 8 N. W. R. 50. the Court jurisdiction to make 12. Arnold v. Nye, 11 Mich the order; Pettiford v. Zoellner, 45 456. Mich. 358. 8 N^W. R. 57; Colton 29Z 410 BRINGING DEFENDANT INTO COURT 410. Appearance of the Defendant. If the summons has been personally served, and due proof of such service filed, the defendant must enter his. appearance in the suit, either in person or by attorney, within fifteen days from the date of such service. Such appearance is entered by filing a notice thereof in the office of the clerk of the court, and serving a copy of the same on the attorney for the plaintiff. In cases where it becomes necessary to bring the defendant into court by publication or service of an order for his appearance, notice of such appearance must be filed and a copy thereof served on the attorney for the plaintiff within the time desig- nated in the order. 16 v. Rupert, 60 Mich. 318, 27 N. W. Book, p. 606. Sec. 2; After gen- ii. 520; Morrison v. Morrison, 64 eral appearance the defendant is Mich. 53, 30 N. W. R. 903; Powell entitled to notice of all future pro- v. Pierce, 168 Mich. 427, 134 N. ceedings; Connor v. Jochen, 171 W. R. 447. Mich. 69, 137 N. W. R. 69; C. L. ' 16. C. C. Rules, 1916, No. 31; 1915, (12457); Cummins & Beech- Cummins & Beecher's Mich. Rule er's'Mich. Judicature Act, 580. 298 CHAPTER XXXV. PROCEEDINGS AFTKK APPEARANCE OF DEFENDANT. 411. Copy of Bill to be Served. 412. Demurrers and Pleas Abolished. 413. Motion to Dismiss. 414. Default for not Appearing. 415. Default for Want of Answer. 416. Setting aside Default. 417. Amending Pleadings. 418.< Answer: Form of. 419. Sworn Answer: Effect of. 420. Cross-Bills. 421. Chancery Pleadings: How Verified. 422. Before Whom Pleadings may be Sworn to. 423. Supplemental Pleadings. 424. Supplemental Bills: Nature of; When Proper. 425. Who to be Made Parties to a Supplemental Bill. 426. Form of Supplemental Bill. 427. Leave to File: How Obtained; Process. 428. Defenses to Supplemental Bill. 429. Answers to Supplemental Bills. 430. Evidence to Support Supplemental Bill. 411. Copy of Bill to be Served. Upon receiving notice of the appearance of the defendant, the plaintiff must cause a copy of the bill of complaint to be served upon him or his attorney within fifteen days after re- ceipt of the notice of appearance, unless a copy of the bill has been served with the summons. 17 412. Demurrers and Pleas Abolished. Under the former practice the defendant was required to h'le and serve his demurrer, plea or answer to the bill within fifteen days after service of a copy of the bill of complaint. The Judicature Act of 1915, however, abolishes demurrers and l>lc;is. ;iml provides that all questions heretofore required to be raised by plea or demurrer must now be raised by motion to 17. C. C. Rules, 1916, No. 31, Mich. Rule Book, p. 607. Sec. 2; Cummins & Beecher's 299 413 PROCEEDINGS AFTER APPEARANCE dismiss, or in the answer. 18 If the objection to the bill raises a question of fact, it should be presented by the answer; if a question of law, by motion to dismiss. 413. Motion to Dismiss. If objections to the bill are raised by motion to dismiss, the motion should be filed and a copy served within fifteen days after service of a copy of the bill. If a copy of the bill was served with the summons, such motion must be filed within fifteen days after such service. If the objection to the bill is raised by the answer, the same should be brought on for hear- ing and determination by the court in advance of the hearing on the merits, upon four days notice by either party. The plaintiff, at any time either before or after the hearing of the objections, may amend the bill so as to meet the objections raised thereto, upon such terms as the court may deem prop- er. 19 On the hearing of all motions involving questions of fact, the court, in its discretion, may require the production of all of the witnesses for examination in open court. 20 Irregularities as to service of process are waived where the defendant voluntarily enters a general , appearance and an- swers the bill. 21 But where there is a special appearance such irregularities 18. C. L. 1915, (12456) ; Cum- City, 119 Mich. 395, 78 N. W. R. Tnins & Beecher's Mich. Judica- 328; Arndt v. Bourke, 120 Mich, ture Act, 579; C. C. Rules, 1916, 263, 79 N. W. R. 190; Smith v. No. 31, Sec. 6; Cummins & Beech- Cowles, 123 Mich. 4, 81 N. W. R. er's Mich. Rule Book, p. 608; any 916; McDonald v. Smith, 139 defect which would have been Mich. 211, 102 N. W. R. 668; waived by failing to make an ob- Kern v. Verein, 139 Mich. 233, jection to a pleading by demurrer 102 N. W. R. 746; Sauer v. Mc- or plea under the former practice Clintic, 179 Mich. 618; Clark v. will be waived under the new O'Rourke, 111 Mich. 108, 69 N. W. practice if not timely raised by a R. 147; Johnson v. Burke, 167 motion to dismiss. Therefore the Mich. 349, 132 N. W. R. 1017. decisions involving the question of 19. C. L. 1915, (12456); Gum- waiver by failure to demur or mins & Beecher's Mich. Judica- plead are applicable to the new ture Act, 579. practice; Jennison v. Haire, 29 20. C. L. 1915, (12580); Gum- Mich. 209, Barton v. Gray, 48 mins & Beecher's Mich. Judica- Mich. 164, 12 N. W. R. 30; Weaver ture Act, 703. v. Van Akin, 77 Mich. 588, 43 N. 21. Greacen v. Buckley & Doug- W. R. 1081; Fuller v. Jackson, 82 las Lumber Co., 167 Mich. 569, 133 Mich. 480, 56 N. W. R. 721; Baent N. W. R. 538; Thompson v. Bene- v. Kennicutt, 57 Mich. 268; 23 N. fit Association, 52 Mich. 522, 18 W. R. 808; Williams v. West Bay N. W. R. 247. 300 DEFAULT KUU WANT OF ANSWKU 415 ' are not waived. 22 After a general appearance by the defend- ant, he is entitled to notice of all subsequent proceedings.- 3 If the bill is taken as confessed by the defendant for want '.I the court makes an order requiring the amount determined to be paid within such time as the court may deem proper. The order Should be entitled in the court :m i> sued according to the prayer thereof. Upon the filing of the bill with such order endorsed, the clerk of the court issues* the writ under the seal of the court, and it then may be served in the same manner that a summons is required t<> ! served. The injunction must be specifically prayed for in the hill. 1 1. 0.' 0. Rules, 1916. No. 24, Rule Book. p. 597. Sec. 3; Cummins & Beecher's 315 442 . INTERLOCUTORY PROCEEDINGS 442. Injunction to Restrain Threatened Injury. A temporary injunction is also sometimes employed to re- strain one of the parties to a divorce suit from injuring the person or property of the other party. An injunction will be issued for such purpose only when it is made to appear clearly to the court that threats of injury to person or property have been made, and that there. is imminent danger of such threats being carried into execution. An injunction to restrain a husband from imposing any re- straint upon the personal liberty of the wife may be issued up- on the petition of the wife, after the bill is filed in an action for divorce or for the annulment of a marriage. 2 The appli- cation for such injunction may be made by the wife, and if the facts set forth in the petition are sufficient to warrant it, the writ will be issued. If the facts upon which the application is made arise after the bill is filed, a petition should be filed by the wife stating facts sufficient to satisfy the court that a necessity for such restraint exists. Upon the applica- tion for the writ, either at the time of the commencement of the suit, or afterwards by petition or cross-bill,* the circuit judge may grant a temporary injunction, or may make ail or- der requiring the other party to show cause, at a time and place to be stated in the order, why the writ should not issue. The order should also state the time and manner in which service of the same is to be made. In case the circuit judge of the circuit in which the action is pending or is about to be commenced "is sick, absent, or in any other manner disquali- fied from ordering or allowing an injunction, upon due proof of suchifacts by affidavit, the circuit judge of any judicial dis- trict adjoining the judicial district in which said court or county is situated, shall have authority, at chambers, or at any place where he may be, to grant or deny such injunction the same as if he were the circuit judge of the circuit in which such suit is pending or is about to be commenced, and after such injunction is allowed, as aforesaid, the judge ordering the same shall have concurrent jurisdiction to modify or dis- solve the same with the presiding judge of the circuit wherein surh suit is pending." 3 The object and purpose of a temporary injunction in an ac- tion for divorce or to annul a marriage is to preserve the 2. C. L. 1915, (11405); Howell, 3. C. L. 1915, (12675); Cum- 2nd ed. 11466; In re Gi 1120 Wis. mins & Beecher's Mich. Judi- 686. cature Act, 798. 316 \-.\\ Mi:\ I <>! TKMl'ORARY ALIMoNY 44:> rights of the parties pending tin- litigation, and to enable the court to do justice between them in the tinal disposition of tin- case. 4 443. Proceedings to Compel Payment of Temporary Alimony. After an order for temporary alimony lias been granted, a certified copy of the same should be served upon the husband and also upon his attorney, and. at the time the money be- comes due and payable, a written demand for the money, speci- fying the amount due. should also be served upon the husband. 5 If payment of the money is refused or neglected to be made without reasonable cause, an affidavit should be prepared show- ing the time, place and circumstances surrounding the service of the certified copy of the order for alimony, and service of the written demand and refusal, the amount of alimony due, the fact that it has not been paid, and the refusal or con- tumacious neglect of the husband to pay the same. Such af- fidavits, a true copy of the written demand referred to in the affidavit of the person serving the same, and a certified copy of the order for temporary alimony, may then be presented to the court ex partc and the court will then grant an order re- quiring the husband to show cause why he should not be pun ished for contempt in refusing to pay the alimony ordered. The order to show cause should be made returnable at i time and place to be stated in the order, and a reasonble time should be given to enable a defense to be prepared. The order also should state the length of time before the return day within which service of the same is to be made. On the return day of the order, or at such other time as the court may di- rect, the answer of the husband to such order must be present- ed to the court, together with such other affidavits in support of it* as the party or his attorney may deem advisable. If the answer and affidavits in support of it show reasonable and sufficient cause for the refusal and neglect to pay the ali- mony ordered by the court, the proceedings will be dismissed. If no sufficient cause is shown, a precept will be issued by the court to commit the husband to prison until the amount of temporary alimony, and costs due and payable, is paid. 5 The purpose of this provision is to enable the court to en- 4. 14 Cyc.. Page 661; Scholer 2nd ed. 12617, J. A. 1915, ("h. :.. v. Scholer, 77 Ga. 60; Kirby v. Sec. 4, Page 48, c. & B. J. A. 1915. Kirby, 1 Paige CN. Y.) 261. Page 148. 5. C. L. 1915, (12271); Howell, 317" 444 INTERLOCUTORY PROCEEDINGS force compliance with its interlocutory orders for the payment of a sum of money or costs where no other means of enforce- ment is provided by the statute. 6 Under this provision it is not necessary to file interrogatories and to give the husband an opportunity to produce witnesses to rebut the showing made by the wife, 7 but before a party can be punished by imprison- ment for refusing payment of alimony or costs, or any sum of money ordered by the court, he should be given an opportunity to be heard. 8 A party will not be brought into contempt for non-payment of alimony unless a proper demand and re- fusal is shown. 9 The proceedings mentioned in this section are applicable only to the enforcement of payment of tempo- rary alimony where a fixed sum is ordered by the court to be paid to the wife. 444. Compel Payment of Temporary and Permanent Alimony. In 1913 the legislature passed an act entitled: "An Act to Facilitate the Collection of Temporary and Permanent Ali- mon3 r to be Paid in Suits for Divorce." This act provides that "in all suits for divorce or separate maintenance, where an order or decree for the payment of tem- porary or permanent alimony has been made, and where the party, whether complainant or defendant, has appeared in per- son or by solicitor, or has been personally served with process within the jurisdiction of the court making such order or de- cree for the payment of alimony, the court making such order or decree shall have power to punish by fine or imprison- ment or both, any neglect or violation of said order, upon the petition of the party whose rights thereunder may have been impaired, impeded or prejudiced by such neglect or violation of said order." 10 The next section provides that "when any decree or order shall be made for the payment of temporary or permanent ali- mony, to be paid in certain stipulated payments, directed to be made in said order to the register (now clerk) of the court, and any such payments shall be in default, the party preju- diced thereby may make a motion before the court making 6. Swartout v. Lucas, 102 159. Mich. 494, 60 N. W. R. 973. 9. Brown v. Brown, 22 Mich. 7. Ervay v. Ervay, 120 Mich. 299; Edison v. Edison, 56 Mich. 525, 79 N. W. R. 802. 185, 22 N. W. R. 264. 8. Steller v. Steller, 25 Mich. 10. C. L. 1915, (11443); 318 I, I'AY.MKNT <>T AUMo.NY such order, showing by the records in the register's i clerk's i oflice i hiit such default h;is been made, iiiul thereupon Hie court Shall forthwith issue :m attachment to arrest such piirly in de fault and bring I'ini immediately before tlie court to answer for such neglect. 11 The next section provides that "no demand of any kind, or notice of the making of the order for the pay- ment of such alimony, shall be necessary in the cases enumer- ated in the lirst section of this act." 1 -' When such attachment is issued it is required to he served by the sheriff of the county or bv any otlicer authorized to make such arrest. Such otlicer must arrest the party named in the attachment and keep him in actual custody and bring him forthwith before the court issuing such attachment, and keep and detain hint until the court shall make some further order in the premises. The party arrested under the provisions of this act may be discharged from such arrest upon executing and delivering to the register (clerk) of the court issuing such attachment a bond with two suilicient sureties, in a penal sum to be fixed by the register (clerk), conditioned for the immediate and faithful performance of the terms of said order for the pay- ment of alimony, or said party may be discharged from arrest by such other order in the premises as the court may make therein, 14 This statute is a peculiar one and there may be a very seri- ous question whether it has any force so far as the object ex- pressed in its title is concerned. The object expressed in the title, and its avowed purpose, is "to facilitate the collection of temporary and permanent alimony." The act itself gives the court power to punish by tine and imprisonment, or both, any neglect or violation of such order, upon the petition of the party, whose rights thereunder are impaired, impeded or prej- udiced by such neglect. The act applies only to an order or decree directing money to be paid in certain stipulated amounts to the register (clerk i of the court. It does not pur- port in any way to change, add to, or take from the authority <>t the court to enforce the payment of alimony by contempt proceedings as provided by Compiled Laws of 1SH7. Section HIS'.M. Howell's Statutes. L'nd. Ed., Section li'iilT. and Tom- piled Laws of IS'.C., Section 10S!M>. Subdivision Three. Il,\v ell's Statutes 2nd. Kd.. Section PJCd I. unless Section Six. 11. C. L. 1915, (11444); 13. C. L. 1915, (11446); 12. C. L. 1915, (11445); 14. C. L. 1915, (11447); 319 444 INTERLOCUTORY PROCEEDINGS which provides that "all acts or parts of acts contravening any of the provisions of this act are hereby repealed," by im- plication repeals those sections. The Judicature Act of 1915 does not in express terms repeal act No. 379 of the Public Acts of 1913, and if the latter act, which took effect August 15th, 1913 repealed the former statute above referred to, they were re-enacted without change by the Judicature Act, which took effect January 1st, 1916. 15 The re-enactment of the earlier statutes, however, would not necessarily repeal entirely Act No. 379 of the Public Acts of 1913, for the reason that some of its provisions are not incon- sistent with the provisions of the Judicature Act, and if valid on other grounds the act of 1913 is still in force. It may be questioned seriously, however, whether the act of 1913 above referred to is valid on constitutional grounds. No proceedings can be had under the provisions of the act until some specified sum of money becomes due and payable according to the terms of the order or decree. When such sum is due and payable it becomes a debt, due and owing by the party against whom the order is made, and the act in question authorizes the court to punish the party for non-payment of such debt, by fine or im prisonment or both. With imprisonment for debt forbidden by the constitution, a party cannot be imprisoned for non-com- pliance with the order of the court for the payment, of money, except on the ground of contempt of the authority of the court. 16 While it is very clear that it is not the intention or purpose of the constitution to take from the courts the power to punish a contempt of the authority of the court, the pun- ishment provided for by this statute does not appear to be of that kind. Such punishment may be by fine, in such amount as the court may see fit to impose, in case the party is unable to give the bond with two sureties provided for in Section Five of the act, and in addition to a fine the court may impose such term of imprisonment as it may think proper. It would seem to be the safer practice, until such time as the courts have occasion to pass upon the validity of this act, to treat it as superseded by the Judicature Act before mentioned. The authority of the legislature to enact a law for the pun- ishment of a person by fine and imprisonment, without giving him any sort of right to a defense, may well be doubted. The 15. C. L. 1915, (12268 & 12271) ; 16. Steller v. Steller, 25 Mich. Cummins & Beecher's Mich. Judi- 159. cature Act, 391 and 394. 320 111 i: ri:ori:ss or LAW 445 act in question provides that "no demand of any kind or no- tice of the making of tin- order fop the payment of such ali- mony shiill he necessary in the rases enumerated in the tirst section of the act." There seems (o he an unbrokenn line of authority that before a person can be committed for contempt of (lie authority of the courts, there must lie a personal demand for compliance with some order which the court has made, and a contumacious refusal. 17 445. Due Process of Law. The act of UM.'t is well calculated to deprive a person of lib erty and property or both, without due process of law. in as much as it gives the party proceeded against in accordance with its provisions, no opportunity to be, heard in defense of the accusation made against him. 18 The fundamental con- ception of a court of justice is condemnation only after a hear ing. To say that courts have inherent power, or that the legis lalure may give them the power, to deny all right of the citizen to defend against an accusation, and to render decrees with- out a hearing, is. in the very nature of things, to convert the court exercising such authorty into an instrument of wrong and oppression, and hence to strip it of that attribute of jus lice in. on which the exercise of judicial power depends. 19 The principle that a person cannot be condemned without a hear- ing lies at the foundation of all well ordered systems of juris- prudence. Wherever one is assailed in his person or prop- erty, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all civilized nations. A sentence of a court, pronounced against a party without a hearing, or without giving him an oppor- tunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. 20 17 Edison v. Edison, 56 Mich. law involves and implies not only 185, 22 N. W. R. 246; Brown v. the right to be heard, but a bear- Brown, 22 Mich. 247; Steller v. ing in compliance with estab- Steller, 25 Mich. 159. lished methods of procedure: 18. Michigan Constitution, Art. parte Wall, 107 U. S. 289, i'T L. 2, Sec. 16; U. S. Constitution, Art. ed. 662; Hurtado v. California, 14, Sec. 2. 110 U. S. 535, 28 L. ed. 238; Hagar 19. Hovey v. Elliot, 167 U. S. v. Reclamation District No. 108, 409, 42 L. ed. 215. Ill U. S. 708, 28 L.' ed. 572; Har- 20. McVeigh v. U. S., 78 U. S. ris v. Hardeman, 55 IT. S. 341. 14 259, 20 L. ed. 80; Due process of L. ed. 447; Lasere v. Rochereau, 321 INTERLOCUTORY PROCEEDINGS The enforcement of the only sentence which the court can im- pose under the provisions of Act No. 379 of the Public Acts of 1913 would apparently deprive the party against whom such sentence or order ^s made of his liberty or property with- out due process of law. 84 U. S. 438, 21 L. ed. 695; Tay- lor v. Porter, 4 Hill, 140, 40 Am. Dec. 274; Pennoyer v. Neff, 95 U. S. 733, 24 L. ed. 572; Scott v. Mc- Neal, 154 U. S. 34, 38 L. Ed. 896; Grain v. U. S. 162, 40 L. ed. 1097; Walker v. Sauvinet, 92 U. S. 93, 23 L. ed. 679. Due Process of Law: The pro- vision of the constitution that no person shall be deprived of life, liberty, or property without due process of law is intended to se- cure to the citizen the right to a trial according to the forms of law, of the question of his lia- bility and responsibility before his person or his property shall be condemned; Parsons v. Rus- set, 11 Mich. 113, 83 Am. Dec. 728. Due Process of Law, within the meaning of the constitution, is laws which are general in their operation and not special acts of legislation passed to affect the rights of particular individuals against their will, and in a way which the same rights of other persons are not affected by exist- ing laws; Attorney General v. Jochim, 99 Mich. 358, 58 N. W. R. 611, 23 L. R. A. 699, 41 Am. "St. R. 606. The due process of law required by the constitution means that notice or summons shall be given or served by which a party is tendered his day in court, with the right to frame an issue and be heard, before judgment can be rendered or execution issued which will take away his liberty or his property; Rouse, Hazzard & Co. v. Donovan, 104 Mich. 233, 62 N. W. R. 359, 27 L. R. A. 577, 53 Am. St. R. 457. Due Process of Law. is not necessarily judicial process; Wei- mer v. Banbury, 30 Mich. 201. 322 XXXVIII. MOTIONS AND AFFIDAVITS. 446. Motions Classified. 447. Motions Granted of Course. 448. Special Motions and Petitions. 449. Motions Framing Issues on Hearing. 450. Witnesses on Hearing of Motions. 451. Common and Special Orders. 446. Motions Classified. Motions in causes pending in court are of two kinds, mo- tions of course and special motions. Motions of course are those applications which require no notice, and upon which orders may be entered by the clerk of the court without ac- tual application to the court. A special motion is one not granted of course, but which is founded on the pleadings, up- on affidavits, petitions, or some previous order of the court, and which cannot be granted without special application to the court. Special motions are of two kinds ; ex parte, where no notice of the application is necessary to be given, and motions, special notice of which is required to be given ac- cording to the rules and practice of the court. $447. Motions Granted of Course. An application or motion for an order which may be granted of course without special application to the court must be supported by affidavit or sworn petition. Such motions in divorce cases are entries of orders pro confesso, for non ap- pearance, for not putting in an answer after service of a ropy of the bill, for not serving copy of the bill after appearance and demand therefor, and all applications which according to the rules and practice of the court may be made without notice and without special application to fhe court. In all such applications in chancery cases the attorney for the party in whose behalf the application is made prepares 1 323 448 MOTIONS AND AFFIDAVITS and files with the clerk of the court affidavits setting forth the facts which entitle the party to the order desired. The attorney should also prepare and sign such order as his client is entitled to on the showing made by the affidavits, and such order should be signed, filed and entered by the clerk. No formal motion in writing is required in those applica- tions which are made and granted of course. 448. Special Motions and Petitions. All special motions and petitions (except motions for con- tinuances and motions to strike from the calendar i must be in writing and signed by the attorney or counsel of the party in whose behalf they are made, and are required to set out briefly and distinctly the grounds upon which they are found- ed, and must be filed in the office of the clerk, together with the affidavits supporting them, on or before the day on which they are noticed for argument. 1 Notice of argument of such special motions and petitions as require notice, together with a copy thereof and of the affidavits on which they are based, must be served upon the opposite attorney at least four days prior to the time noticed for hearing the same, but upon good cause shown the court may hear the argument on shorter no- tice. 2 Motions and petitions which cannot be heard on the day for which they are noticed will stand continued from day to day, in the absence of a special order, without any special order of continuance. Not more than one counsel will be heard on each side on the argument of any motion or petition, and the mover is entitled to open the argument and to repl^ to the argument of opposing counsel. 3 The provisions of the rule requiring four days notice of special motions and requiring such motions to be in writing are applicable to motions to extend the time for settling a bill of exceptions in a law case, and a case on appeal in a chancery case. 4 In such cases the court has no authority to extend the time for more than eighty days after judgment, unless the party ap- plying for such extension has complied with the requirements 1. C. C. Rules, 1916, No. 15, 3. C. C. .Rules, 1916, No. 15, Sec. 1; Cummins & Beecher's Sec. 3-4; Cummins & Beecher's Mich. Rule Book, p. 577. Mich. Rule Book, p. 578. 2. C. C. Rules, 1916, No. 15, 4. Burgess v. Circuit Judge, Sec. 2; Cummins & Beecher's 171 Mich. 583, 137 N. W, R. 247. Mich. Rule Book, p. 577. 324 wrr.xKssr.s ON ni:.\Ki.\<; or MOTIONS ? I-~.M of this rule/ 1 The notice and showing required by the rule may he waived. 9 449. Motions Framing Issues on Hearing. Tt appears T<> he well settled that disputed questions of fart. ;is a p-neral mle, will not be tried on affidavits, 7 but i|iiestions pertaining merely to the mode of procedure, and tho^e matters which depend on the discretion of the court, may as a general mle be tried in that manner. 8 Where a special motion involves disputed questions of fact and per- tains t< matters which are not discretionary with the court, the court, in its discretion, may direct an issue to be framed on the hearing. Since the enactment of the Judicature Art of 191- ">. which abolishes pleas in abatement and pleas to the jurisdiction, as well as picas in chancery cases and demur- rers, and provides tha,t those questions which, under the for- mer practice, were required to be presented by plea shall now be raised by motion to dismiss, it would seem that there is more reason for framing issues on special motions than for- merly. 450. Witnesses on Hearing of Motions. The Judicature Act of 1915 provides that ''upon the hear- ing of any motion or petition, when any question of fact is involved, the court hearing such motion or petition may. in its discretion, if it deems it necessary in order to reach a just conclusion as to such facts, require the production of all or any of the witnesses having knowledge of the matters 5. Hill v. Hill, 114 Mich. 594, Mandell, 171 Mich. 588, 137 N. W. 72 N. W. R. 597; Lake Shore R. 247. Rail Road Co. v. Circuit Judge, 7. Brown v. Thompson, 29 116 Mich. 399, 74 N. W. R. 529; Mich. 72; Lyon v. Smith, 66 Mich. Roach v. Circuit Judge, 117 Mich. 676, 33 N. W. R. 753; Voight 242, 75 N. W. R. 465; Singer v. Brewery Co. v. Circuit Judge, 103 Livingston Circuit Judge, 117 Mich. 190, 61 N. W. R. 343; Sher- Mich. 318, 75 N. W. R. 609; Hayes rill v. Grand Trunk Railway Co., v. Ionia Circuit Judge, 125 Mich. 161 Mich. 495, 126 N. W. R. 830. 277, 84 N. W. R. 141; Kaiser v. 8. Parker v. Circuit Judge, 24 Hosmer, 162 Mich. 247, 127 N. W. Mich. 408; Grand Rapids and In- R. 336; Pettinger v. Montmorency diana R. R. Co. v. Circuit Judge, Circuit Judge. 164 Mich. 463, 129 159 Mich. 210, 123 N. W. R. 591. N. W. R. 676 ; Burgess v. Mandell, 9. Haywood v. Johnson, 41 171 Mich. 583. 137 N. W. R. 247. Mich. 598, 2 N. W. R. 926; 6. Wilkins v. Circuit Judge, Stringer v. Dean, 61 Mich. 196, 27 125 Mich. 628, 84 N. W. R. 1107; . N. W. R. 886; Turner v. St. Clair Culver v. Circuit Judge, 141 Mich. Tunnel Co., 102 Mich. 574, 61 N. 644, lor, \. \v R. 139, Burgess v. W. R. 72. 325 450 MOTIONS AX1> AFFIDAVITS of fact involved on such motion before him in open court." 10 Tn case the facts set forth in the affidavits or petition on which a special motion is based are denied by affidavit or answer by the party against whom such motion is made, the court before which the motion is pending may, in its discretion, frame an issue and require all or any of the witnesses having knowledge of such facts to testify orally in open court. Ordi- narily the court will not frame such issue, nor require the oral examination of the witnesses in open court, except in those cases where the relief sought is mandatory and not within the discretion of the court and depends upon the facts involved in the motion. By a statute which has been in force many years in this state, it is provided that "when- ever a suggestion has been made upon the record, or in any stage of the proceedings in any cause, which the adverse party shall have the right to controvert, a copy of such suggestion sha.ll be served upon the adverse party or his attorney in the same manner as other pleadings, and such party may plead thereto according to the practice of the court, in the same manner and within the same time as to a declaration. If an issue of fact be joined on any such suggestion, the same shall be tried and judgment rendered therein as on other issues. The party making such suggestion may be non-suited and may have judgment of non-pros, or discontinuance entered against him for the same causes and in the same cases as in suits at law." 11 The suggestion contemplated by this statute is a statement formally entered on the record of some fact or circumstance which will materially affect the further proceedings in the case but which for some reason cannot be pleaded. It has been held that a^special motion, where it is based upon a statement of facts which the adverse party is entitled to controvert and which for any reason cannot be, pleaded, comes within the terms of this statute. 12 Under the new 10. C. L. 1915, (12577) ; Cum- Judge, 97 Mich. 622, 57 N. W. R. mins & Beecher's Mich. Judica 190; Turner v. St. Glair Tunnel ture Act, 700. Co., 102 Mich. 574, and note, 61 N. 11. C. L. 1915, (12762) ; Howell, W. R. 72; Caille Bros. Co. v. Sagi- 2nd ed. 13116 et seq, J. A. 1915, naw Circuit Judge, 155 Mich. 480, Ch. 20, Sec. 26 et seq, Page 148. 120 N. W. R. 6 ; Grand Rapids and 12. Hubbel v. McKinnon, 22 D. Indiana R. R. Co. v. Circuit L. N. 431; Haywood v. Johnson, Judge, 161 Mich. 181, 126 N. W. 41 Mich. 598, 2 N. W. R. 670; R. 56; Foley v. Grand Rapids and Muskegon Booming Co. v. Circuit Indiana R. R. Co., 168 Mich. 496, 134 N. W. R. 446. 326 fo.M.\lo\ AM> SPECIAL UKIMiKS ^ \7>\ practice provided for by the Judicature Act. ;ill dilatory ideas having been abolished, an issue undoubtedly may In- framed under a motion to dismiss made before answer, or. in case a question which might have been raised heretofore, by dilatory plea in a law case shall be raised in the notice at- tached to the plea, or in a chancery case by the answer, then such issue may be framed and brought on for hearing and determination by the court in advance of the trial on the merits. 13 And under the new practice the issue which may he so framed may be tried by the court, under the provisions of the section of the statute last cited, or, if it be such an issue as is mentioned in the statute, an order of reference may le made upon motion, under the provisions of another statute, also re-enacted as part of the Judicature Act, which provides that "when a question of fact other than upon the pleadings shall arise upon motion or otherwise, either before or after judgment, the circuit judge in vacation, by an order under his hand, may direct a reference on the written appli- cation of either party." 1 * The Judicature Act by the next^section provides for the practice before the referee, giving to such referee the power to administer oaths, to issue process to compel the attendance of witnesses, to grant continuances, and to conduct the pro- ceedings generally; and after hearing the proofs to report to the court in writing, showing separately the facts found and his conclusions of law. 16 451. Common and Special Orders. All orders to which a party is entitled of course accord- ing to the rules and practice of the court, without showing special cause, are called common orders. All common o"rders and all orders entered by consent of the parties may be filed with the clerk of the court at any time, as well in vacation as during term, and the day when the order is filed must be noted thereon. A party may tile such order as he may con- 13. C. L. 1915, (12641); Cum- mins & Beecher's Mich. Judica- inins & Beecher's Mich. Judica- ture Act, 764. Hollands v. Cir ture Act, 764. < nit Judge, 117 Mich. 326, 75 N. 14. C. L. 1915, (12640); Howell, W. R. 886; Church v. Anti Kalso 2nd ed. 12742, J. A. 1915, Ch. 18. mine Co., 118 Mich. 219, 76 N. W. Sec. 68, Page 124. R. 383. 15. C. L. 1915. (12641); Cum 327 451 MOTIONS AND AFFIDAVITS ceive himself to be entitled to>, but at his peril. The most usual common orders in divorce cases are orders pro confesso. Since the adoption of the Judicature Act requiring proofs in chancery cases to be taken in open court unless otherwise directed by the Court, orders of reference to a commissioner to take proofs and report his opinion thereon to the court, which formerly were classed as common orders, under the new practice should be denominated special orders, because they can now be made only on special application to the court. All orders which are made on special application to' the court and by its direction must be signed by the judge of the court, filed with the clerk, and entered in the proceedings of the court. All orders made by the judge at chambers must be signed by him and filed in the cause. 16 16. C. C. Rules, 1916, No. 17; Book, p. 579. Cummins & Beecher's Mich. Rule 328 CIIAITKK XXXIX. HKAIMNil AND DECREE. 452. Jury Trials in Divorce and Annulment Cases. 453. Proofs in Divorce and Annulment Cases: When and How Taken. 454. Notice of Hearing not necessary. 455. Cross-Examination of Opposite Party. 456. Witnesses: Compelling Attendance and Testimony. 457. Warrant for Apprehension of Delinquent Witness. 458. Mode of Administering Oath to Witnesses. 459. Competency of Witness Religious Opinions. 84QO. Competency of Witness: Appreciation of Nature and Obliga- tion of Oath. 461. Children as Witnesses. 462. Conviction of Crime. 463. Admissibility of Testimony. 464. Court to Rule on All Objections. 465. Argument of Divorce Cases. 466. Decree: Preparing and Settling. 467. Rehearing: Application for. 468. Enrollment of -Decree. 469. Discharge and Satisfaction of Decree. 470. Enforcement of Decree. 452. Jury Trials in Divorce and Annulment Cases. The statute provides that suits for divorce or to annul or affirm a marriage shall be conducted in the same manner as other chancery cases. 1 This being true, the court may award issues to be tried by a jury, in the same manner and with the same effect as in other chancery suits. The statute also pro- vides that all issues upon the legality of a marriage (except \\ IKTC ;i marriage is sought to be annulled on the ground of ih- physicial incapacity of one of the parties) shall be tried by a jury of the country." 1. C. L. 1915. (11403) ; Howell, party the right if he chooses to 2nd ed. 11464. exercise it, to have the issues 2. C. L. '97, (444); Howell, tried by a jury. The parties will 2nd ed. 11961; this statute is be deemed to have waived th<> not mandatory upon the Court in right to a jury trial, unless one all cases, but secures to either of the parties, after issue joined 329 453 HEARING AND DECREE But where a defendant in a divorce case denies the validity of a marriage and makes no demand or request that the is- sue as to the legality of the marriage be submitted to a jury, he will be deemed to have waived the right. 3 In a suit in equity to annul a marriage the circuit court has discretionary authority under this statute to grant an application for sub- mission to a jury of the question whether the plaintiff was mentally competent to enter into the marriage contract, even though the suit has been several times noticed for hearing by the party making the application and none of the notices have mentioned a jury trial. The statute, however, is not mandatory, and the circuit judge under such circumstances may properly deny the application on the ground of waiver. The verdict contemplated by the statute is advisory only, and not binding upon the court. 4 It has been held that it is not competent for the legislature to enact a law providing that in chancery cases either party shall be entitled to a jury trial, to be demanded in the same manner as in an action at law, and that the verdict of such jury on any question of fact shall have the same force and effect in the circuit court in chancery and in the Supreme Court on appeal as the verdict of a jury in an action at law. Such legislation has been held unconstitutional in this state. 5 453. Proofs in Divorce and Annulment Cases: When and How Taken. In all divorce and annulment cases, whether at issue or heard on bill taken as confessed by the defendant, the testi- mony in support of the allegations of the bill must be taken. The court has no authority to decree a divorce or pronounce a sentence of annulment or affirmance of a marriage, on the bill being taken as confessed by the defendant, without proofs sustaining the allegations of the bill of complaint. And under the present practice such proofs must be taken in open court, as in actions at law, unless the court shall specially order applies to the Court for a feigned 70 N. W. R. 1032; Flannagan v. issue; Schafberg v. Schafberg, 52 Flannagan, 122 Mich. 386, 81 N. Mich. 431; 18 N. W. R. 202. W. R. 258. This section was repealed by 4. Maier v. Circuit Judge, 112 the Judicature Act. . Mich. 491, 70 N. W. R. 1032. 3. Schafberg v. Schafberg, 52 5. Brown v. Kalamazoo Cir- Mich. 429, 18 N. W. R. 202; Walker cuit Judge, 75 Mich. 274, 42 N. W. v. Circuit Judge, 112 Mich. 386, R. 827. 330 XOTICI: OK IIKAKIM; NOT XKCKSSARY otherwise. No proofs can be taken, except conditionally for tlie purpose of perpetuating the testimony, in any di\<>r< case until the expiration of two months from tli<> lime ol' lilinu the hill, except \\here the "Ton i id o!' divorce charged in the bill is desertion. 7 In every divorce case, whether contested or not. the court, for the furtherance of justice, may call upon either party or any witness therein to testify orally in open court, and may continue and keep the case open lor that purpose, and may issue process to compel the attendance of such party or witness before the court. 8 Rut no party or witness whose evidence may not be received under the laws of this state can be called upon and compelled to testily under the provisions of this rule. 9 In a divorce- case one party may compel the other to testify.. No privilege is conferred upon either party, permitting one to decline to take the stand as a witness upon the request of the other. I Jut n | arty is not required to attend at the hearing, and if the other party desires such attendance he may procure it by the service of a subpoena for that purpose, or a deposition may be taken when necessary. When one party calls the other as a witness, he thereby consents to his testimony. 10 The testimony of the parties can be taken only in open court, and such testimony cannot be received in support or in defense of a charge of adultery. 11 The court has the power under the statute to call the defendant as a witness in a pro confesso divorce case. 12 $454. Notice of Hearing not Necessary. Under the new practice provided by the Judicature Act of 1015 no notice of hearing of any cause is necessary. "When ever the cause is at issue, or when default is entered or tiled on or before the fourteenth day prior to the first day of any term of court, it is the duty of the clerk, to place the same upon the calendar for the next ensuing term of the court, in 6. C. L. 1915, (12489); Cum- mins & Beecher's Mich. Judica- , mins & Beecher's Mich. Judica- ture Act, 196. ture Act, 612. 10. Bauer v. Bauer, 177 Midi. 7. C. L. 1915, (11400) ; Howell, 169. 2nd ed. 11461. 11. C. L. 1915, (11428); How- 8. C. C. Rules, 1916, No. 26; ell, 2nd ed. 11489. Cummins & Beecher's Mich. Rule 12 . Rosecrance v. Rosecrance, OK, p. bUl. 127 Micn> 322, 86 N. W. R. 800. 9. C. L, 1915, (12034); Cum- , .' 331 455 HEARING AND DECKl'i: its appropriate place, and, unless sooner tried, thereafter to place the same on the calendar for each succeeding term until it is disposed of. The causes are placed on the calendar in their proper classification in the order in which issue is joined or default entered. 13 Cases in which issue is joined or default entered after the fourteenth day before the first day of the term may be placed upon the calendar before or during the term at the request of the attorney of either party, and such causes will stand for hearing after fourteen days from the time that notice of such cause having been placed on the calendar shall have been served upon the opposite party or his attorney. 1 * 455. Cross-Examination of Opposite Party. Either party to a divorce or annulment suit may call the other party as a witness. 15 If the plaintiff or defendant shall call the opposite party as a witness in his or her behalf, such party so called as a witness may be cross-examined by the party calling him the same as if he or she, as the case may be, had appeared ;is a witness in his or her own behalf, and the answers of such witness will not interfere with the right of the other party to controvert the testimony given. 16 But in such case neither the husband or wife is competent to testify if the charge made in the bill, answer, or cross-bill, for which divorce is sought, is that of adultery of either party. 17 If the plaintiff is subpoenaed as a witness in behalf of the defendant and refuses to appear, or, being present, refuses to testify when called upon to do so, except where privilege exists, the bill may be dismissed, and if the defendant has filed a cross-bill the case may proceed to a decree upon the cross-bill and answer thereto, if one has been filed. If the defendant refuses to appear on being personally served with a subpoena in behalf of the plaintiff, or, being present, refuses to be sworn or to testify, except where privileged from answering, the bill will be taken as confessed. 18 But these statutory provisions do 13. C. L. 1915, (12573); Cum- 16. C. L. 1915, (12555); Cum- mins & Beecher's Mich. Judica- mins & Beecher's Mich. Judica- ture Act, 696. ture Act, 678. 14. C. L. 1915, (12577); Cum- 17. C. L. 1915, (12555); Cum- mins & Beecher's Mich. Judica- mins & Beecher's Mich. Judica- ture Act, 700. ture Act, 678. 15. C. L. 1915, (12555); Cum 18. C. L. 1915, (12560); Cum- mins & Beecher's Mich. Judica- mins & Beecher's Mich. Judica- ture Act, 678. ture Act, 683. 332 ro.\iri-:u.i\<; ATTI:MI.\\CK AM> TKSTI \IO\Y i: I ."(' not authorize the court to grant a decree of divorce or annul- ment if the bill or cross-bill is taken as confessed on account of the defendant refusing 1<> appear and testify, nor do they in any way abrogate or modify the provisons of l;iw with reference to punishment of witnesses for contempt of court for refusing to testify or for refusing to appear when person- ally served with subpoena for that purpose. 456. Witnesses Compelling Attendance and Testimony. Witnesses may be compelled to attend the hearing or trial by personal .service of a subpoena issued and signed by the clerk and under the seal of the court. In order to compel the attendance of a witness or party a subpoena must be person- ally served on him a reasonable time before he is required to appear. The length of time will depend to some extent upon the distance the witness will necessarily have to travel to reach the place of hearing, and the legal fees of the witness must also be paid or tendered at the time of the service unless the witness waives such payment. The legal fees of the wit- ness are one dollar per day for attendance and ten cents per mile for traveling to the place of trial by the usually traveled route, and such traveling fees and one day's attendance must be paid or tendered to the witness at the time of service. The manner of service is as follows: First; the original writ, under the seal of the court or of the officer issuing the same, must be exhibited to the witness ; Second; a copy of such writ, or a ticket containing its sub stance, must be delivered to the witness at the time of ser- vice ; Third; the fees allowed by law to ^uch witness for travel- ing to and returning from the place where he is required to attend and the foes allowed by law for one day's attend- ance must be paid or tendered to the witness at the time of service. 19 1'pon personal service and the payment or tender of his fees, the witness is required to be in attendance at the time and place stated in the writ and remain in attendance until legally excused, and he is entitled to his /><'> tlinn fees each day he is necessarily detained in attendance. For failure to so attend and testify, without a legal and reasonable excuse, 19. C. L. 1915, (12561); Cum- ture Act, 684. mins & Beecher's Mich. Judica- 333 457 HEARING AND DECREE the witness will be deemed guilty of a contempt of the court out of which the subpoena issued, and will also be responsi- ble to the aggrieved party for the damage for the loss and hindrance sustained by reason of such failure, and for all other damages sustained thereby; and in addition thereto will be liable to the aggrieved party in the sum of fifty dollars as additional damages, to be recovered in the same action with the other damages. 20 457. Warrant for Apprehension of Delinquent Witness. Upon due proof of personal service of a subpoena and pay- i inent or tender of the legal fees of a witness and the failure of the witness to attend, the court will issue its warrant to the sheriff of the county to bring such witness before the court to be examined. 21 The proof of service of the subpoena and of the neglect or refusal of the witness to attend may be made ex parte by affidavit, or, if the court so directs, the proof may be made by oral testimony in open court. If a wit- ness attending before the court in pursuance of a subpoena, or brought before the court by warrant issued by the court for that purpose, shall, without reasonable cause refuse to be examined or to answer any legal or pertinent question, the court, by its warrant, will commit such witness to the com- mon jail of the county in which he resides, there to remain until he submits to be examined, or to answer such legal and pertinent questions as shall be put to him, or until he shall be discharged according to law. 22 A peculiar feature of this section of the statute is that in case of the contumacious refusal of a witness to appear or testify, the court is required to commit such witness to *the jail of the county in which the witness resides, even though such county may not be within the territorial jurisdiction of the court which issues the warrant of commitment. It frequently happens that witnesses are called before the courts who are residents of another state, or of a county other than those composing the territorial jurisdiction of the court. In such a case it may be doubtful whether a warrant 20. C. L. 1915, (12561; Cum- ture Act, 686. mins & Beecher's Mich Judica- 22. C. L. 1915, (12564) ; Cum- ture Act, 684. mins & Beecher's Mich Judica- 21. C. L. 1915, (12563) ; Cum- ture Act, 687. mins & Beecher's Mich. Judica 334 <-OMIM:TI:\CY or \\ ITNKSS 459 nt commitment could be executed in the foreign state or county. Such w.'irriii I of commitment must specify particularly the cause- of such commiiment and, if the commitment is for re- fusing to answer any questum. such question must he stated in the warrant. 23 A warrant t<> apprehend a witness who refuses to attend the court in ohedience to a subpoena duly served must he di- rected to the sheriff of the county where such witness may be, and must be executed by him in the same manner as other process issued by courts of record. 458. Mode of Administering Oath to Witnesses. The usual mode of administering an oath to a witness practiced in this state is by the person who swears hiding up the right hand. The statute requires this method to be ob- served in all cases, except where such person is conscientiously opposed to taking an oath. 25 In such case a witness instead of swearing, may be permitted solemnly and sincerely to Affirm, under the pains and penalties of perjury.- 15 459. Competency of Witness Religious Opinions. The statute provides that "no person shall be deemed in- competent as a witness in any court, matter, or proceeding, on account of his opinions on the subject of religion; nor shall any witness be questioned in relation to his opinions thereon, either before or after he shall be sworn." 27 The Con- stitution also provides that no person shall be rendered in- competent to be a witness on account of his opinions on mat- ters of religious belief. 28 It has been held that this section of the constitution refers only to the competency and not to the credibility of the wit- nesses. 29 But the statute goes further than the constitu- 23. C. L. 1915, (12565); Cum- ture Act, 692. mins & Beecher's Mich. Judica- 27. C. L. 1915, (12570) ; Cum- ture Act 688. mins & Beecher's Mich. Judica- 24. C. L. 1915, (12566) ; Cum- ture Act, 693. This section of the mins & Beecher's Mich. Judica- judicature act makes no change ture Act 689. of the former statute, C. L. '97 25. C. L. 1915, (12568V; dum- (10207); Howell, 2nd ed. 12851. mins & Beecher's Mich. Judica- 28. Constitution, 1908, Art 2, ture Act, 691. Sec. 17. 26. C. L. 1915, (12569); Cum- 29. People v. Jenness, 5 Mich, mins & Beecher's Mich. Judica- 319. 235 400 HEARING AND DECREE tion, and forbids questioning a witness in relation to his opinion on the subject of religion or his religious belief, either before or after he is sworn. 30 The original common law rule that in order to be a competent witness a person must be- lieve in God and in a state of future rewards and punish- ments has been modified so as to admit the testimony of per- sons who believe in the existence of a supreme being, although not in rewards and punishments after death ; and in a num- ber of jurisdictions the common law rule is entirely abro- gated by constitutional or statutory provisions, under which religious belief, or the lack of it, has no bearing whatever on the competency of a witness. In some jurisdictions the ques- tion of religious belief does not affect the competency of the witness, but it may be enquired into for the purpose of affect- ing the credibility of his testimony. In th6se jurisdictions where the common law rule is en- tirely abrogated by constitutional provision or legislative enactment it is not competent to examine a witness as to his religious belief, either before he is sworn or afterwards, for the purpose of determining his competency, or to affect the credibility of his testimony. 31 460. Competency of Witness: Appreciation of Nature and Obligation of Oath. In order to be competent as a witness, a person must have sufficient intelligence to understand and appreciate th obli- gation of the oath lie takes. The purpose of the law being 30. Sibley v. Morse, 146 Mich. Kentucky. White v. Com. 96 463, 109 N. W. R. 858. Ky. 180, 28 S. W. R. 340; Bush v. 31. California. Fuller v. Ful- Com., 80 Ky. 244, 3 Ky. L. R. 740. ler, 17 Cal. 605. Louisiana. State v. Williams, Florida. Clinton v. State, 53 111 La. 179, 35 So. R. 505. Fla. 98, 43 So. R. 312, 12 Ann. Gas. Massachusetts. Com. v. Burke, 150 and note. 16 Gray, 63. Georgia. Donkel v. Conn, 44 Michigan. People v. Jenness, 5 Ga. 266. Mich. 305; Sibley v. Morse, 146 Illinois. Hroneck v. People, 134 Mich. 463, 109 N. W. R. 858. 111. 139, 24 N. E. R. 961, 23 Am. Missouri. Londoner v. Lic- St. R. 652, 8 L. R. A. 837; Ewing thenheim, 11 Mo. App. 385. v. Bailey, 36 111. App. 191. New Jersey. State v. Powers, Indiana. Snyder v. Nations, 5 51 N. J. L..432, 17 Atl. R. 969. Blachf. 295. Texas. Colter v. State, 37 Tex. Iowa. State v. King, 117 Iowa, Cr. 284, 39 S. W. R. 576; Murphy 484, 91 N. W. R. 768. v. State, 36 Tex. Cr. 24, 35 S. W. Kansas. Dickinson v. Beal, 10 R. 174. Kan. App. 233, 62 Pa. R. 724. 336 AS \YITM:SSI:S to lay hold on the conscience of the witness iy this religious solemnity, it is obvious that persons incapable of compre- hending the nature and obligation of an oath ought not 1<> le admitted ;is wil nesses. In their case the repetition of the "words of the oath would be but an unmeaning formality. It makes no difference from what cause the defect of under- standing may have arisen; nor whether it be temporary and curable or permanent; whether the party be hopelessly an idiot or maniac, or only occasionally insane, as a lunatic; or be intoxicated, or whether the defect arises from mere immaturity of intellect, as in the case of children. While the deficiency of understanding exists, be the cause of what nature soever, the person is not admissible to be sworn as a witness. 32 461. Children as Witnesses. The most frequent occasion to apply the foregoing rule is in the case of young children who are called as witnesses. 33 It is universally held by th6 courts of this and other states that the fact that a child called as a witness is under the age of seven years does not create an absolute disability to testi : fy. 34 The authorities all agree that a child is not competent to testify if it is not capable of appreciating the obligation of an oath, if he takes an oath, or of his affirmation if thai is substituted. This is upon the ground that a witness must be under some pressure arising out of the solemnity of the oc- casion beyond the ordinary obligation of telling the truth. 3 ' 1 But it has been held that it is not necessary that the child should understand that the obligation to tell the truth on the witness stand is any greater than at other places. 36 It a]> 32. 1 Greenleaf on Evidence, v. Olson, 130 la. 353, 106 N. W. 15th ed., Sec. 365, Page 502. The R. 758; Kilburn v. Mullen, 22 la. question of the competency of 498; Lee v. R. R. Co., 76 Kan the witness is for the trial judge 402, 73 Pa. R. 110, 63 L. R. A. 271. to decide, and he may conduct the 34. McGuire v. People, 44 Mich, examination to determine the de- 286, 6 N. W. R. 669. gree of intelligence possessed by 85. 1 Greenleaf Ev., 15th ed., the witness as he sees fit; Canna- Sec. 367; 1 Phil Ev., Ch. 2 and day v. Lynch, 27 Minn. 435, 8 N. notes: Hughes v. Detroit, G. H. & W. R. 164. M. R. R. Co., 65 Mich. 14, 31 N. W. 33. Hughes v. Detroit, G. H. & R. 603. M. R. R. Co., 65 Mich. 10, 31 36. State v. Meyer, 135 Ta. 507, N. W. R. 603; Davis v. State, 31 113 N. W. R. 322, 124 Am. St. R. Neb. 247. 47 N. W. R. 854; Olson 291, 14 Ann. Cas. 1 and note. 337 462 HEARING AND DECREE pears to be sufficient to qualify the child that he understands the difference between truth and falsehood, and that it is his duty to tell the truth, 37 and that he will be punished if he testifies falsely. 38 A child who knows that he will be pun- ished on earth if he testifies falsely is competent, although he knows nothing of punishment after death. 39 The child need not know how, or by whom he will be punished. 40 And the fact that the child is too young to be prosecuted for per- jury does not render him incompetent. 41 462. Conviction of Crime. The common law rule is that a person is incompetent as a witness if he has been convicted of an infamous crime, 4 - such as treason, felony or any of the crimen falsi; but a mere conviction of crime does not render the offender incompetent if he has not thereby been rendered infamous. The common law rule has been declared by legislative enactment in some of the states, and in others it is abolished so far as the ques- tion of competency is concerned, but a conviction of c^rime may be shown as bearing on the credibility of the testimony given by the witness. In, Michigan the statute provides that "no person shall be excluded from giving evidence in any matter, .civil or criminal, by reason of crime, but conviction of crime may be shown, for the purpose of drawing in ques- tion the credibility of such witness." 44 This statute does not abrogate the common law rule entirely as, to the effect of 37. State v. Washington, 44 298, 86 S. W. R. 527, 117 Am. St. La. Ann. 1602, 22 So. R. 841; R. 590. Clark v. Finnegan, 127 Iowa, 644, 41. Johnson v. State, 61 Ga. 103 N. W. R. 970. 35. 38. Sokel v. People, 212 111. 42. Taylor v. State, 62 Ala. 238, 72 N. E. R. 382; Bright V 164; 'Werner v. State, 44 Ark. Com. 120, Ky. 298, 86 S. W. R. 122; State v. Clark, 60 Kan. 450, 527, 27 Ky. L. R. 677, 117 A. M. 56 Pac. R. 767; People v. Whip- St. R. 590; Agneau v. Brooklyn pie, 9 Cow. (N. Y.) 707; U. S. v. City R. R. Co., 5 N. Y. Supp. 756, Barefield, 23 'Fed. R. 136. affirmed in 117 N. Y. 651, 22 N. E. 43. Holler v. Firth, 3 N. J. L. R. 1132; Clark v. State,, (Tex. 723; Welsh v. State, 3 Tex. App. Crim. 1902), 66 S. W. R. 1104. 114; U. S. v. Brockins, 24 Fed. R. 39. Sawado v. State, (Tex. 460, 3 Wash. 99, where no in- Crim. App. 1902), 61 S-. W. R. 142; famous punishment was inflicted, Rcroggins v. State, (Tex. Crim. though it might have been. App. 1902), 51 S. W. R. 232, 44. C. L. 1915, (12560) ; Howell, Contra Jones v. State, 145 Ala. 2nd ed. 12854; People v. Hoff- 51, 40 So. R. 947. man, 154 Mich. 145, 117 N. W. R. 40. Bright v. Com., 120 Ky. 568. 338 AHMissii'.iUTY nr TESTIMONY {= Mi:'. the conviction of ;ui infamous crime on ;i witness, 1ml still al- lo\\> such coin in ion to In- shown ;is a distinct fact, as bear- in ; on the credit to be given to his testimony by tin- court or jury. 45 The credit of a witness, however, cannot be impeached or assailed by the direct testimony of another witness to any criminal act committed by the witness, or to any charge of criminality, unless lie has actually been adjudged guilty, and this can be shown only by a record and judgment of comic tion. 40 The general rules as to the' admissibility of testimony in divorce and annulment cases are the same as in any other ( -asc on the equity side of the court. 463. Admissibility of Testimony. In taking the testimony in divorce cases, the general rules of law are applicable as to competency, relevancy and ma- teriality of testimony offered. Prior to the enactment of the .Judicature Act of 1915, the court on the hearing of chancery cases in open court was ordinarily required to receive all testimony offered unless it was clearly and- without question incompetent, or was offered by a witness whom the law de- clared to be incompetent to testify in the particular case or on a particular subject. This rule was followed on the theory that inasmuch as the Supreme Court on appeal was required to hear and determine the case upon the testimony taken in the lower court, it became necessary to have all of the testi mony offered taken and returned to the appellate court, where such as was found to be inadmissible could be rejected and a tinal decree entered without sending the case back for a new trial or hearing. The commissioners appointed to pre pare and report bills for revision and consolidation of the statutes, whose careful and painstaking labor and research resulted in the passage of the Judicature Act of 1915, in their report to the governor, make use of the following language on this subject: "In the ^trial of chancery cases much time is taken up by the introduction of wholly immaterial and in- competent testimony. The chancery record is often made the dumping ground of things introduced purely to gratify spite 45. People v. Hall, 48 Mich. Mich. 21, 26 N. W. R. 795; Dris- 490, 12 N. W. R. 665; Helwig v. coll v. People, 47 Mich. 416, 11 X Lascowski, 82 Mich. 619, 46 N. W. W. R. 221; Smith v. Brown, 2 R. 1033. Mich. 162; Dickinson v. Dustin, 4f,. People v. Maunausau. 60 21 Mich. 561. 339 HEARING AND or malice, or with the deliberate intent of prejudicing the court by matter known to be improper." While this state- ment is not very complimentary to the profession, candor compels the admission that it contains a large measure of truth. The only reason which can be offered, or which ever has been offered, for receiving every thing offered in chancery hearings, is that in case of an appeal, if the Supreme Court should hold that testimony which has been rejected should have been received, it could not properly make a just and final disposition of the case without having such testimony before it. 464. Court to Rule on All Objections. The Judicature Act of 1915 made a radical change in the matter of taking testimony in chancery cases. It provides "that in all chancery cases the court must rule upon all ob- jections to the competency, relevancy, or materiality of testi- mony or evidence offered, the same as in suits at law." If the court is of the opinion that testimony offered ought not to be received, it may be excluded. The rights of the party offering such testimony are fully protected on appeal by a further provision that if the testimony offered and excluded is brief, the court, in its discretion may permit it to be taken down by the stenographer, separate from that received i^i the case; and, in case of an appeal, such excluded testimony may be returned to the appellate court under the certificate of the trial court. If such excluded testimony is not permit- ted by the trial court to be taken down by the stenographer, and on appeal the Supreme Court shall be of the opinion that such testimony is competent and has a material bearing on the issues involved, it may order the same to be taken by deposition or under a reference, and returned to that court. 47 These provisions seem to do away with any objections which can be made to the change referred to, made by the Judicature Act, and to prevent such abuses as under the former practice sometimes occurred. Of course, if the Supreme Court, upon examination of the record, should find it necessary to direct a reference or to order such -testimony to be taken by depo- sition, the final disposition of the case may be delayed for a short time, but that would be a trifling matter compared with 47. C. L. 1915, (12493) ; Cum- ture Act, 616. mins & Beecher's Mich. Judica- 340 I'KKi'AKixi; AM SI:TTI.IN<; i>i:ri;i:r. i-HiC. going through ;i long record of incompetent and iiiiin:i terial testimony and separat ing the materia 1 from the immaterial ;ill(l incompetent. Oil the whole the chaiige seems to lie ;i wise one. Of course it is a radical departure from a well recognized ami long established practice, but it is a salutary preventive of an evil of just as long existence. 465. Argument of Divorce Cases. When the proofs are closed on the hearing of a divorce or annulment case oral arguments may be made upon the <|iies tions of law and fact involved, by counsel for the respective parties. Upon the issues of fact raised by the bill and an- swer, the attorney for the plaintiff has the right to make the opening and closing argument. If a cross-bill has been filed by the defendant and answered by the plaintiff, the issues so raised are argued at the same time, and may be presented to Ilie court in connection with those issues which are raised by the original bill and the answer thereto. If no testimony has been offered in support of the allegations of the cross- bill it will be treated as abandoned by the defendant, and the argument confined to the questions raised by the original bill and answer, concerning which testimony has been given. No more than two hours is allowed either side for argument un- less otherwise directed by the court, and the court in its dis- cretion may limit the time to less than two hours, but counsel may have at least one-half hour on each side if they so de- sire. 48 466. Decree : Preparing and Settling. After the arguments of counsel are concluded the cause is submitted to the court for its decision. When the decision of the court is announced, either orally in open court or by written findings filed with the clerk, a formal decree should be prepared by counsel for settlement and signature by the judge who heard the cause. Counsel for the party in whose favor the decision is made should prepare the decree in ac- cordance with the findings of the court, and should serve a copy on counsel for the opposite party, together with a notice of the time when, and the place where, the same will be pre- sented to the judge for settlement and signature. At least 48. C. C. Rules, 1916, No. 42, Mich. Rule Book, p. 620. Sec. 2; Cummins & Beecher's 341 467 HEARING AND DECREE four days notice should be given of the time and place of settling the decree. Amendments to the proposed decree may be prepared and submitted to the trial judge for allowance, and when the terms of the decree are settled it should be neatly and carefully engrossed, signed by the judge, and filed with the clerk of the court. 467. Application for Rehearing. An application for a rehearing may be had in divorce ac- tions under the same conditions and terms as in other equit- able actions, on proper cause shown. No application for a rehearing can be heard unless made within four months from the time of the entry of the final decree. The application may be made by special motion or petition, and the special matter or cause on which the rehearing is applied for and the parti- cular points in which the decree or order is alleged to be erroneous must be fully set forth in the motion or petition. If the matters of fact stated in the motion or petition do not appear from the records of the court, they must be veri- fied by the oath of the party or some other person having per- sonal knowledge of such facts. 49 Clerical mistakes in a de- cree or decretal order, or errors arising from any accidental slip or omission, may be corrected at any time within three months after such decree is entered, by the order of the court or a judge thereof without the form op expense of a rehear- ing. 50 If a rehearing is granted the petitioner will lose the benefit of the order granting it unless within ten days after such order is entered he shall deposit with the clerk the sum of fifty dollars, or such additional reasonable sum as the court may from time to time order, to answer the costs and damages of the adverse party if the decree or order shall not be materially changed. 51 The order granting the rehearing should state the amount, not less than fifty dollars, which the petitioner is required' to deposit with the clerk, and the court thereafter may order such additional, amount to be deposited fpr the same purpose as may be found to be necessary. The first deposit must not 49. C. C. Rules, 1916, No. 56, Mich. Rule Book, p. 640. Sec. 1-2; Cummins & Beechers 51. C. C. Rules, 1916, No. 56, Mich. Rule Book, N p. 640. Sec. 4; Cummins & Beecher's 50. C. C.^ Rules, 1916, No. 56, Mich. Rule Book, p. 640. Sec. 3; Cummins & Beecher's 342 i. \II:\T HI- i>i:ri:i:i: !< less than lifly dollars. After thai the additional amounts required arc in tin- discretion of the court. These provisions of Kule No. Hi; of the new rules promulgated by the Supreme Court very materially change Ihe ]ractice in relation to re- hearings and ]>ills of review. Imt the pi-ineiples laid down in former decisions still apply. If the tads upon which the petitioner bases his right to a rehearing were known to him or ly the exercise of reasonable diligence might have been ascertained at the time of the first hearing, a rehearing will be denied. 52 An application for a rehearing based upon facts which already appear on the record and that would not. materially alter or add to the case made on the first hearing 1 will be denied.'" A rehearing will not be granted on the ground of newly discovered evidence where the statement of the new evidence is vague and indicates nothing more than cumula- tive testimony upon a subject on which several witnesses were examined and testified on the first hearing." 468. Enrollment of Decree. After the expiration of twenty days from the time the final decree is entered, such decree should be enrolled by the clerk of the court, if at that time no appeal has been claimed and no petition for a rehearing presented. This is done by at- taching together the bill, pleadings, and such other papers in the cause as may have been from time to time filed there- in, in accordance with the rules and practice of the court, together with the taxed bill of costs, if any. and the final decree or decretal order signed by the judge and counter- signed by the clerk." Before the passage of the Judicature Act, the clerk was not required to enroll the decree until requested to d^> so by one of the parties, but the statute now requires such enroll- ment without such request after the expiration of twenty days, if no appeal has been claimed and no application for a rehearing made. In preparing papers for tiling in chancery cases, care should be taken to leave a top margin wide enough 52. Sherwood v. Bank, 104 485; Detroit. Savings Bank v. Mich. 65, 62 N. W. R. 294; Ryer- Truesdail, 38 Mich. 430. son v. Eldred, 18 Mich. 390. 55. C. L. 1915. (12805); Cum- 53. Taylor v. Boardman, 24 mins & Beecher's Mich Judica- Mich. 287. ture Act, 928. 54. Case v. Case, 26 Mich. 343 400 HEARING AND DECREE so that the writing will not be obscured by enrollment. When the decree has been enrolled the clerk is required to annex thereto his certificate, under the seal of the court, certifying according to the fact the time when such .papers were so attached for the purpose of enrollment, and the name or names of the parties at whose instance the same was done. Such decree and papers so enrolled are then filed by the clerk and remain a record in his office. 56 If a decree affects or de- termines the title to real estate, a copy thereof duly certified by the clerk of the court in which the same is entered, under the seal of the court, may be received and recorded in the office of the register of deeds of the proper county after entry and enrollment. Such copy, or the record thereof, will have the same force as evidence of the facts therein contained as th& original decree. If such decree directs the execution of a conveyance or other instrument affecting the title to real estate, the record of such enrolled certified copy of the decree will have the same effect as the execution of such conveyance or other instrument would have if duly executed in pursuance of said order or decree. 57 In all divorce cases where the final decree directs one of the parties to convey real estate to the other, or declares a lien on real estate to secure the payment of a sum of money, the decree should be properly enrolled and recorded in the office of the register of deeds of the county in which the land is situated. 469. Discharge and Satisfaction of Decree. If the decree in a divorce case goes no farther than to dis- solve the marriage, manifestly no satisfaction or discharge of such decree is necessary to be filed or entered. If, however, the decree provides for the payment of a sum of money as costs and expenses of the suit, or as alimony, or the performance of any other specified act, when full per- formance has been made and had a satisfaction and discharge of the decree should be entered. Such discharge and satisfaction is accomplished by the party in favor of whom the decree was entered signing a writ- ten acknowledgment that he has been fully paid the amount 56. C. L. 1915, (12806); Cum- 57. C. L. 1916, (12807); Cum- mins & Beecher's Mich. Judica- mins & Beecher's Mich. Judica- ture Act, 929. ture Act, 930. 344 |470 of ;ill money directed by said decree to l>e paid, and lias re- ceived full performance and satisfaction of all things di- rected by said decree to be done'or performed. This acknowl- edgment must be signed, acknowledged and certified to be- fi'i-r and by some officer authorized to take acknowledgments, a n.l tiled in the office of the clerk of the court. Upon the fil- ing of such acknowledgment the clerk is required to enter in ihc docket of* such decree a note of the satisfaction and dis- charge thereof. 58 The court also has power to order a decree to be discharged upon a hearing of the parties and upon satis- factory evidence that the same has been fully paid or satis- fied. 50 " II ihe decree has been fully pai/1 and all of its conditions performed and complied with, and the party who has re- ceived such payment or performance refuses to sign and acknowledge a discharge of the same, or for any reason such discharge and satisfaction cannot be procured, application should .be made to the Court by special motion or petition for an order of discharge and satisfaction thereof. 470. Enforcement of Decree. Performance of or obedience to any final derive of a court of chancery may be enforced by execution against the body of the party against whom such decree shall have been made, or by execution against the goods and chattels of such party, 80 and. in default thereof, his lands and tenements. The decree must he enrolled before anv execution can issue against the body. 01- against the lands and tenements or goods and chat- tels of the party, and such enrollment must include all of the papers tiled in the case. If the decree authorizes the sale of real estate, notice of such sale may be given* in advance of such enrollment, but no conveyance on such sale can be ex- ec-nted by a commissioner or other officer until such enroll- ment is had. 61 58. C. L. 1915, (12808); Cum- mins & Beecher's Mich. Judica- in ins & Beecher's Mich. Judica ture Act 1088. ture Act, 931. 61. C. C. Rules, 1916, No. 55. 59. C. L. 1915, (12809) ; Cum- Cummins & Beecher's Mich Rule mins & Beecher's Mich. Judica- Book, p. 639. C. L. 1915, (12965) ; ture Act, 932. Cummins & Beecher's Mich. Jucli- 60. C. L. 1915, (12965); Cum- cature Act. 1088. 345 CHAPTER XL. POWERS AND DUTIES OP PROSECUTING ATTORNEYS IN DIVORCE CASES. 471. Reason for Public Representation. 472. General Legislation. 473. Michigan Statutory Provisions. 474. Duty on being Served with Summons. 475. Subjects of Investigation. 476. Prosecutor not Disqualified to Act for Either Party. 477. Compensation for Services. 471. Reason for Public Representation. All divorce and annulment cases are of a quasi public character, in which it has generally come to be understood that public policy requires the adoption of some means for th protection of the public against such evils as would be likely to arise by an ill-advised dissolution of the marriage tie. Especially is this true where it is sought to dissolve a marriage which has resulted in bringing children into ex- istence, who, in the tender years of their lives, are in need of such care and protection as can be afforded only in a well- ordered home of their parents. But the necessity for representation of the public interests in such cases is not by any means confined to the interests and welfare of children. A wise public policy forbids di- vorces procured by collusion between the parties. The mar- riage relation, which lies at the very foundation of civilized society, should not be lightly regarded nor carelessly dealt with. * Notwithstanding some modern legislation and ancient and modern decisions declaring marriage to be a civil contract between the parties, it appears to be universally recognized that it is also in the nature of a contract between the parties and the slate 1 , acknowledging certain duties and obligations to the public. In many of the states this view is recognized in legislation requiring the appearance in divorce cases of 346 GENERAL LEGISLATION : I i _' some public official upon whom is imposed the duty of look- ing after and protecting the interests of the public. 472. General Legislation. In the District of Columbia, by act of congress, the United States attorney must be served with process, and) must enter an appearance in the cause in all divorce cases and defend and protect the rights of the public. 1 In Idaho prosecuting attorneys are required to appear for i IK- state and defend in nil default divorce cases.- In Illinois the prosecuting attorney must defend all default actions for divorce. 8 In Indiana the statute requires the public prosecutor to resist all undefended applications for divorce. 4 In Ken- tucky the court must appoint an attorney to defend *in all uncontested divorce actions. 6 In Oregon service must be made upon the district attorney, who must defend on' behalf of the state in all divorce cases. 6 In Utah the prosecuting attorney must defend for the state in all divorce cases. 7 In Washington the prosecuting attorney must defend all uncontested divorce cases for the state. 8 In Wisconsin ihe prosecuting attorney must resist all undefended applications for divorce. 9 Many other states have statutes of a somewhat similar char- acter, and it may be said that the modern trend of legislation in the United States is in the direction of affording some means of protection of public rights and public policy in divorce litigation. It has been said that in all divorce cases there are three parties in interest, the plaintiff, the defendant, and the public. This is unquestionably true, but in many cases there are fourth parties; young children, whose rights and interests are equally important, and many times more in need of public supervision and protection. 473. Michigan Statutory Provisions. In Michigan the legislature seems to have recognized the 1. District of Columbia Code, tucky, 1909. 1905. 6. Lord's Oregon Laws, 1911- 2. Revised Laws of Idaho, 1908, 1913. Laws of 1915. " Compiled Laws of Utah. 3. Revised Statutes of Illinois, I 907 - Session Laws. 191:?. 1913. 8. Washington Revised Code 4. Burns Annotated Statutes ad Statutes, 1910. of Indiana, 1908. 9. Revised Statutes of Wiscon- 5. Revised Statutes of Ken- sin, 1913. 347 474 PROSECUTING ATTORNEYS necessity of protecting the interests of children by providing that in all applications for divorce the names and ages of all children of the marriage must be stated in the bill of com- plaint, and, where any of such children are under the age of fourteen years, a copy of the summons by which the action is instituted must be served upon the prosecuting attorney of the county in wfcich the action is pending. 10 This statute appears to be mandatory to the extent that where there are children of the marriage under the age of fourteen years and their names and ages are not stated in the bill of complaint and no copy of the summons is served on the proper prosecuting attorney, a decree of divorce rendered upon such application would be void, or at least voidable. 474. Duty on being Served with Summons. Upon being served with a copy of the summons in a divorce case where there are children of the marriage under the age of fourteen years, it is the positive duty of the prosecuting attor- ney to enter ah appearance in the cause, and he should, serve notice of such appearance on the attorney for the plaintiff, and, if, in his judgment, the interests .of the children or the public good so require, he must appear at the hearing, intro- duce evidence, and oppose the granting of a decree of divorce. And in any case, wherein there are no children, the issue of such marriage, under the age of fourteen years, when it shall appear to the court that the public good so requires, the court may enter an order requiring the prosecuting attorney to appear and oppose the granting of a decree of divorce. Failure to serve the summons on the prosecuting attorney and his non- appearance in a case where there are minor children will not affect the jurisdiction of the court, and are mere irregulari- ties. Where the interests of the children have been fully pro- tected, a divorce will not be disturbed for such reason. 11 This statute does not contemplate a mere pro forma appear- ance at the taking of the testimony of the parties and an examination of their witnesses in order to see if he will oppose a decree, but a real and bona fide contest, upon evidence intro- duced for the purpose of showing that the interests of the children require that a divorce should not be granted. 12 And 10. Mich. C. L. '15, (11433) ; 160 N. W. 418. How. 2nd. Ed., Sec. 11494. 12. Wilcox v. Circuit Judge, 83 11. C. L. '15, (11433); How. Mich. 5, 47 N. W. R. 29. 2nd. Ed., Sec. 11494; Cole v. Cole, 348 HI-TV ox r.Kixt; si:it\i:i> WITH si M.MONS in any case in which the court makes ;m order requiring the prosecuting attorney to appear and oppose the granting of ;i decree of divorce, it is equally his duty to oppose the granting of such decree, in good faith, by introducing testimony, if the circumstances of the case warrant it. to show that the interests of (lie public, or the public welfare, require that no decree of divorce he granted in the particular case. Of course it is not to be expected i hat I lie prosecuting attor- ney will lind it necessary in all cases to make a contest^ but to enable him to exercise his judgment and come to an intelligent determination as to whether the interests of the children, or ihe public good, require that a contest should be made, it is necessary that he should make a proper and thorough exami- nation and investigation to obtain information, and facts, upon which to base his judgment. Tpon being served with a sum- mons, or being noiilied of the order of tlie court requiring it, he should tile and serve notice of his appearance in the case. This -secures to him a copy of the bill and the right to notice of all subsequent proceedings. l'pon receiving a copy of the bill he should make the same thorough investigation and ex- amination of all of the circumstances in the case that he would in any other case .where public or private interests are involved, and from such investigation determine whether a defense should be made, either in behalf of the public good or in the interests of the children. The provisions of this statute are mandatory and were enacted to furnish a remedy for, or rather preventive of, a recognized evil, and they should be scru- pulously observed and obeyed. A practice seems to have grown up, and to some extent to prevail in some jurisdictions, by which the prosecuting attor- ney, when served with a summons in such cases, simply makes a report in writing to the court, when requested to do so by the plaintiffs attorney, without having entered any formal appearance or procured a copy of the bill, and in some cases having made no investigation, or merely a i>ro forma one, upon which he reports that in his judgment neither the interests of the children, nor the public good require him to oppose a decree. Whatever may be the effect of proceedings of that character .upon the validity of a decree of divorce, we have no hesitation in saying that the prosecuting attorney does not do his duty unless the statute is substantially followed. The marriage relation is of such an intimate and delicate nature, and the public good, as well as the welfare of the children, are so 349 475 PROSECUTING ATTORNEYS closely connected with its preservation or dissolution, that the legislature has wisely seen fit to make it the positive duty of a public officer to investigate in certain cases. The statute is mandatory upon the prosecuting attorney, and he should com- ply substantially at least with its provisions whenever it be- comes his duty to intervene. 13 In the course of his investiga- tion he may examine the parties aid their witnesses with a view of determining the advisability of making a defense, and in many cases, or in perhaps nearly all, such examination may be the best and sometimes the only means of obtaining the necessary information. If the parties or their witnesses de- cline to give him the information he desires, that fact alone, may be a sufficient reason, for his appearance at court at the time of the hearing, where he will have an opportunity to examine the witnesses and invoke the aid of the court, if neces- sary, to compel the parties or either of them to appear and testify in open court. Tr\ie, he cannot compel the witnesses to appear and testify before himself, but if, when requested to do so, the parties or their witnesses decline or refuse to be interviewed by him, or refuse to give him the necessary infor- mation, that fact may well be treated as raising a strong suspicion of collusion and afford ample reason for the prose- cutor to appear before the court, compel the attendance of the parties, and subject them to a rigid examination. 475. Subjects of Investigation. The statute does not point out the particular subjects which the prosecuting attorney is required to investigate. It simply requires him to make such an investigation as will enable him to determine whether, in his judgment, the interests of the children or the public good require 'that a defense should be made. This is an official duty which he has no right to evade or neglect. The legislature, in the exercise of its authority for the furtherance of a wise public policy, has enacted that no collusive divorces shall be granted by the courts. The large number and rapid increase of uncontested divorce cases in the country leave room for the inference that a large' percentage of them are more or less the result of collusion between the parties. The provision of the statute that a person making application for a divorce must swear that there is no collusion, understanding or agreement between the parties in regard to 13. Wilcox v. Circuit Judge, 83 Mich. 1, 47 N. W. R. 29. 350 ri:osi:ri Tc>K NOT I>lSorAI.IKIi:i> TO ACT FOR EITHER TARTY such ;ipplir;ilioii is easily evaded and does not seem to accom plish the object or purpose for which it was evidently intended. Hence, when t lie prosecut '11112; attorney is called upon by 1'mv<- of the statute or order of the court to appear in a case, it is his positive duty to make a thorough investigation to satisfy bin) self whether si>ch collusion exists, and if he has reasonable ground to believe that it does exist, it is his duty to contest the application. He should also ascertain the number and age of the children of the marriage, what means will be afforded for their care, training, education and support in case the marriage is dissolved and their home broken up; and if in his judgment their interests will be seriously jeopardized by a dis- solution of the marriage, he should use all reasonable efforts in opposition to the application. In the discharge of the duty imposed upon him by the statute under consideration, - he is vested with a personal discretion as a minister of justice, and not as a mere legal attorney, and he must act impartially. He must guard the real interests of the public as well as those of young children regardless of the desires of the plaintiff or the defendant ; and he must not become entangled with the private interests of the parties, nor their grievances. 476. Prosecutor not Disqualified to Act for Either Party. Unlike the general laws of the state'defining and regulating the duties of prosecuting attorneys, this statute does not pre- vent them from acting as attorney or counsel for either party in a divorce case, but if they are retained as such their obliga- tions and duties as ministers of justice in the particular case cease, and the court is charged with the duty of appointing some reputable attorney to perform such services as the prose- cuting attorney would have been required to perform if he had not been retained by one of the parties in the case; and such appointed attorney is entitled the same compensation as the statute provides for similar services by the prosecuting attor- ney. Under this statute it is the positive duty of the court, in' every divorce case where there are children of the marriage under the age of fourteen years, to appoint an attorney t<> represent the children t\nd the public if the prosecuting attor- ney of the county is retained by one of the part ies to the action. This duty sometimes appears to be overlooked. It ought not to be, however, for if the interests of the public and of yonng children are such that they need the supervision and protection 351 .477 I'ROSKCfTIXG ATTORNKYS of a disinterested public' official, and that duty is laid upon the prosecuting attorney of the county, he ought not to be per- mitted to accept a private retainer in those cases where it is his statutory duty to represent the public interests; and in case he is permitted to do so, some disinterested attorney ought in all cases to be appointed, and the court has power to see that the duties of such appointment are faithfully per- formed. 477. Compensation for Services. The statute provides for the payment to the prosecuting attorney, or to the attorney appointed by the court to perform his duties where he has accepted a retainer from one of the parties, the pitifully small sum of five dollars, for services which if performed for private interests would be compensated by many times that sum. This fact is certainly not a very great inducement to the performance of services which are generally regarded as of only a quasi public character, as thoroughly as the real necessities of the occasion may demand. The other duties which the general laws of the state impose upon prosecuting attorneys, and for which in most counties they receive ridiculously small salaries compared with the amoiwit of work they are required to do r are many and com- plicated, and in most counties, if properly performed, occupy the entire time and attention of the public prosecutor. This, however, affords no excuse for neglect or indifference in the performance of those official duties which this statute imposes, and which are assumed by the public prosecutor when he accepts his official position. 352 CHAPTER XLI. AiM'KALs TO sui'i;i:.Mi: coi I;T. 478. Who may Appeal. $479. Claim of Appeal. 480. Extension of Time for Appeal. 481. Bond to Stay Proceedings. 482. Evidence How Settled. 483. Method of Settling the Evidence for Review. 484. Notice of Settling Case on Appeal. 485. Duty of Clerk. 486. Original Files may be Dispensed with When. 487. Extension of Time for Making Return. 488. Motion to Dismiss. 489. Service of Papers. 490. Notices How served. 491. Computation of Time. 492. Court may Direct Manner of Service When. 493. Practice Relating to Motions. 8494. Motion Days and Motion Docket. 495. -Notice of Argument of Causes. 49o. Record to be Printed and Served. 497. . Contents and Service of Briefs. 498. Call of Cases and Argument. 499. Taxation of Costs. 500. Application for Rehearing Costs. 478. Who may Appeal. Any ]l;i in tiff or defendant who conceives himself aggrieved Ity ;in order sustaining or overruling any motion to dismiss, based on jurisdictional grounds or on issues which under the former pi-act ice would have been raised by demurrer, plea to the jurisdiction or other dilator} 7 plea, or by the decree or linal order of the circuit court in chancery in any cause, may appeal to the Supreme Court. If an appeal is taken from an order sustaining or overruling a motion to dismiss, upon the decision thereof bj r the Supreme Court the cause will be remanded to the circuit court in chan- cery, and the plain t ill' may amend his bill of complaint, or the det'endani may file his answer, as the case may be. within such time as the order of the Supreme Court remanding the case 353 470 APPEALS TO SUPREME COURT may prescribe, and the case will then be disposed of as though no appeal had been taken. Where there are two or more defendants and all do not move to dismiss, the proceedings as to those who do not join, in the motion to dismiss or in the appeal will be stayed, except as to filing and serving pleadings, until the motion is finally disposed of. No appeal will lie from an order denying a mo- tion to dismiss, except upon an order signed by a justice of the Supreme Court allowing such appeal; but such appeal will be allowed unless the justice or justices of the Supreme Court who consider the application shall affirmatively determine that the petition for the allowance of such appeal does not present a meritorious question. 1 479. Claim of Appeal. If an appeal is to be taken from an order sustaining a motion to dismiss, or from a final decree after a hearing on the merits, on pleadings or pleadings and proofs, a written claim of appeal must be filed with the clerk of the court where such order or decree was entered, within twenty days after the entry of such order or decree, and within the same time the party claiming jthe appe"al must pay a fee of five dollars to the clerk. When such order or decree is entered in vacation the time for taking an appeal is computed fBom the time of serving notice of such decree 'or order. 2 If the appeal. is to be taken from an order denying or over- ruling a motion to dismiss, a written claim of appeal must be filed with the clerk of the court where such order or decree was entered within the same time, and an application made to a justice of the Supreme Court for an order allowing an ap- peal. 3 Such application should be by petition, verified by the oath of the party or of some one in his behalf. The petition should recite the names of the parties to the suit and of the party or parties claiming the right to appeal, with the sub- stance of the decree and the date it was entered. The statute does not prescribe the form or contents either of the claim of appeal or of the petition to the Supreme Court for an order i 1. C. L. 1915, (13753); P. A. page 337; Cummins & Beecher's 1915, Act. No. 314, Ch. 50, Sec. 18, Mich. Judicature Act, 1876. page 336; Cummins & Beecher's 3. C. L. 1915, (13753); P. A. Mich. Judicature Act, 1875. 1915, Act No. 314, Ch. 50, Sec. 18, 2. C. L. 1915, (13754); P. A. page 337; Cummins & Beecher's 1915, Act No. 314, Ch. 50, Sec. 19, Mich. Judicature Act, 1875. 354 r.oxn TII STAY I-IJIM i:i;i.i\ ;; M allowing ;ui appeal. ,The claim of appeal sliniilil lie entitled in the court and cause, ;nnl should stair briefly tin* grounds upon which an appeal is claimed. It should he signed liy all of the parlies who claim the lienelit of an ajipejil, and a copy should be served erfectinii such appeal not* more than one year from the date of the order or decree ap- pealed from. If the party claiming the appeal has been pre- vented by circumstances beyond his control from taking and perfecting the same within the period of one year from tin- date of the entry of such order or decree, the Supreme Court, or one of the justices of that court, at chambers, may ^rant a farther extension of time, not exceeding six months, for taking and perfect iu- such appeal. Such extension can be granted only on special motion after notice to the opposite party, and upon a proper showing. 4 481. Bond to Stay Proceedings. An appeal in a chancery case does not operate to stay pro- ceedings in the suit unless the party taking the appeal shall, within the time allowed for perfecting the same, tile with the clerk of the court in which the order or decree appealed from was entered, a bond to the appellee or appellees, with one or more sureties to be approved by the circuit judiic.'or a circuit court commissioner of the county, or a justice of the Supreme Court. The penalty of such bond is fixed by the judj_ r e or com- inissh r who approves the same, and it must be conditioned for the performance or satisfaction of the final order or decree of the Supreme Court in the cause, and the payment of all costs of t he appellee or appellees in the mailer of the appeal. Notice of the application for the approval of such bond must be uiven to the appellee the same as on special motions, and such notice must state the penalty of the proposed bond, the names of the 4. C. L. 1915, (13755); P. A. page 337; Cummins & Beecher's 1915, Act No. 314, Ch. 50, Sec. 20, Mich. Judicature Act, $1877. 355 482 APPEALS TO SUPREME COURT sureties therein, and the appellee may be heard as to the sufficiency of the penalty and the responsibility of the sureties. In case such bond has been approved by a circuit court com- missioner, the circuit court in which such order or decree was entered, or the judge of such court at chambers, may on motion order an additional bond and fix the penalty thereof and approve the sureties therein. The Supreme Court, or any justice thereof, may also on motion, and a proper showing, order an additional bond after an appeal has been perfected, and fix the penalty thereof and approve the sureties therein. 5 If an appeal bond is not filed the proceedings in the lower court will not be stayed, and the opposite party may proceed, at his peril however, to enforce the decree as he understands his rights under its terms. 6 482. Evidence How Settled. If the decree from which the appeal is to be taken was entered after a hearing on pleadings and proofs, the evidence taken and used on the hearing, whether taken in open court or before a commissioner or by deposition, or in any other manner, must be settled for review on appeal in the same manner and within the same time as is provided by law or the rules of practice for the settlement of bills of exception. 7 The rules of practice allow a party not less than twenty days after the entry of the order or decree appealed from for the settlement of a case containing the evidence for review in the Supreme Court in a chancery case, but a stay of proceedings during such twenty days is discretionary with the court. 8 The court may grant such further reasonable time to settle such case as may be deemed proper, subject to the limitations pre- scribed by statute, and upon such terms and conditions as may be deemed just; but no more than sixty days further time will be granted fo*' that purpose, except for good cause shown by 5. C. L. 1915, (13756); P. A. 129 N. W. R. 878; Macomber v. 1915, Act No. 314, Ch. 50, Sec. 21, Cottrell, 162 Mich. 720, 127 N. W. page 337; Cummins & Beecher's R. 402; Commercial National Mich. Judicature Act, 1878. Bank v. Gaukler, 164 Mich. 215, 6. Pinel v. Pinel, 172 Mich. 129 N. W. R. 195; Hulan v. Cir- 611, 138 N. W. R. 219. cuit Judge, 159 Mich. 608, 124 N. 7. C. L. 1915, (13757) ; P. A. W. R. 574. 1915, Act No. 314, Ch. 50, Sec. 22, 8. C. C. Rules, 1916, No. 66, page 338; Cummins & Beecher's Sec. 1; Cummins & Beecher's Mich. Judicature Act, 1879; Mich. Rule Book, page 653. Winegar v. Fritz, 164 Mich. 427, 356 i:\ii. i:\ci; (482 ;ini(];i\it nil special motion. after notice to I he adverse party, or on the written stipulation of the part ics. ' Tin- statute ;in not slate what will constitute good cause for extending the lime. That matter seems to have been lefi largely to the discretion of the trial judge, and he must depend largely upon the ]articular circumstances of each case as the same is brought before him for action and determination. If the transcript of the testimony can be obtained from the court stenographer without much delay the eighty days allowed by the rule will ordinarily give ample time to settle the case. It is the general practice, on request of counsel for either party at the time a final decree is settled and entered in a chancery case, to allow eighty days to settle a case for review in the Supreme Court. But no stay of proceedings can be ordered for such purpose for a longer period than twenty days from the. time the decree was entered, unless the party applying for such stay, if a decree shall have been rendered against him, shall execute a bond to the adverse party as described in t In- preceding section. In case the party applying for such stay of proceedings shall be unable to give such bond by reason of poverty, the judge may, upon due proof of inability, for such reason grant such stay without requiring such bond. 10 It must be borne in mind by the practitioner that the time for tiling the claim of appeal and for paying to the clerk tin- fee of live dollars for making the return has been changed by the Judicature Act. Formerly the claim of appeal and pay- ment of the fee could be tiled and made at any time within for ty days after the settlement of the case for review in the Su preme Court. Under the new practice no material change has been made as to the time within which the case for appeal may lie settled, but it should be remembered that the claim of ap- peal must now be made and filed with the clerk, and the fee paid and notice thereof given to the adverse party, within twenty days from the lime the decree is entered. The filing of the claim of appeal and the payment of the fee of five dollars to the clerk for making the return within the 9. C. C. Rules. 1916. No. 66, 129 N. W/R. 878; Commercial Sec. 2; Cummins & Beecher's National Bank v. Gaukler, 164 Mich. Rule Book, page 653. Mich. 215. 129 N. W. R. 195; 10. C. L. 1915, (13758): P. A. Macomber v. Cottrell. 162 Mich. 1915, Ac.t No. 314, Ch. 50, Sec. 23, 720, 127 N. W. R. 402; Hulan v. page 338; Cummins & Beecher's .Circuit Judge. 159 Mich. 608, 121 Mich. Judicature Act, 1880; N. W. R. 574. Winegar v. Fritz, 164 Mich. 427, 357 APPEALS TO SUPREME COURT time required by the statute are jurisdictional prerequisites, and failure to comply within the time prescribed is fatal to the right to appeal. 11 But where the party desiring to appeal is prevented from doing so within the time prescribed by the statute by the default of the court or any of its officers, the ap- peal will not 'be dismissed. 12 483. Method of Settling the Evidence for Review. After a final decree has been settled the_party who desires to appeal should, as soon as practicable, order and procure from the court stenographer a transcript of the testimony taken on the trial of the cause. Any unnecessary or unex- plained delay in doing so will be a good reason for a denial of nn application for an extension of time to settle a case for re- view if such application should be made. On the other hand if a timely application for such transcript is made, and -for any reason the stenographer fails to furnish such transcript in time to prepare the case on appeal for settlement, that fact will furnish good "cause for an extension of time. When the transcript of the testimony is procured, counsel for the appellant should prepare a case for settlement and re- view, and procure thereto the signature of the circuit judge who heard the cause. In preparing the case for review on ait- peal, the testimony should be condensed as much as can be consistently done, and should be in narrative form, except in those instances where it may become necessary to give the questions and answers that there be a proper understanding of the same. If any part of the testimony is set out in the pro- posed case on appeal by questions and answers, the trial judge who settles the case must certify in writing that he deems it- material and necessary in order to give a full understanding of the questions involved, that such parts of the case as are set forth by questions and answers should be so set forth. 1 " 1 The case proposed for settlement must contain the substance 11. Perkins v. Perkins, 173 Mich. 695, 140 N. W. R. 161; Cam- Mich. 695, 140 N. W. R. 161; eron v. Calkins, 43 Mich. 191, 5 Bennett v. Hickey, 110 Mich. 628, N. W. R. 292; Kalamazoo v. Kala- 68 N. W. R. 650; Trombley v. mazoo Heat, Light & Power Co. Klersy, 139 Mich. 311, 102 N. W. 122 Mich. 489, 81 N. W. R. 426; R. 736; Thompson v. McKay, 154 Waterman v. Bailey, 111 Mich. Mich. 228, 117 N. W. R. 624; Lum 571, 69 N. W. R. 1109. . v. Fairbanks,' 155 Mich. 23, 118 . 13. C. C. Rules, 1916, No. 66, N. W. R. 578. Sec. 8; CUmmins & Beecher's 12. Perkins v. Perkins, 173 Mich. Rule Book, page 655. 358 or SKTTI.IM; CASK ox AIM-HAL I' .ill the lest iinoiiy taken iinil read on the trial and all of the proceedings IKK) during tin- trial under tin- provisions of the Judicature Ad. rhapter Seventeen. Section Five, relating to excluded Icsl inioiiy offered on tin- trial. 14 484. Notice of Settling Case on Appeal. After the case on appeal lias been prepared in accordance \\ith the statute and rules of practice, a copy of the same, to -i-ilier with a notice of when and where the same will be pre- sented for settlement and signature by the judge who tried the rase, must be served on the adverse party at least four days before the time fixed for such settlement. 1 -"' The party pro- posing such settlement must furnish the adverse party with such portions of the stenographer's transcript of his minutes as shall have been procured, for inspection and use for such adverse partv in the preparation of amendments to the pro- posed case, together with the original copies of such exhibits, papers and writings, or documents as are incorporated in such proposed case, and may also be required to furnish a copy of such further portions of the stenographer's minutes as shall be deemed necessary by the court to a settlement of such case." 1 Amendments to such proposed case may be prepared in writing by the opposite party, and all contentions respect- ing the same will be determined by the trial judge according to the facts at such time and place as he shall appoint. 17 The parties or their attorneys may agree upon a statement of fad< without procuring a transcript of the testimony from the sten- ographer, and in such case, if satisfactory to the judge who heard the case or proceedings, or any other judge with authori- ty in the premises under the statute and 'rules of practice, it will be signed and certified to by such judge, and when so signed and certified it will stand as the case for review in the Supreme < 'otirt. 18 When the case for review by the Supreme Tourl has been settled and signed by the circuit judge it is delivered to the -appellant, who is required to tile it with the clerk of the cir- 14. C. C. Rules, 1916, No. 66, Mich. Rule Book, page 654. Sec. 7; Cummins & Beecher's 17. C. C. Rules, 1916. No. 66, Mich. Rule Book, page 655. Sec. 9; Cummins & Beecher's 15. C. C. Rules, 1916. No. 66. Mich. Rule Book, page 655. Sec. 9, Cummins & Beecher's 18. C. C. Rules. 1916, No. 66, Mich. Rule Book, page 655. Sec. 10; Cummins & Beecher's 16. C. C. Rules, 1916, No. 66. Mich. Rule Book, page 655. Sec. 3; 'Cummins & Beecher's 359 485 APPEALS TO SUPREME COURT cuit court within ten days thereafter, and if not filed within that time the appellant will be deemed to have waived the benefit of such case for review, unless further time shall be al- lowed for filing the same by the trial judge on special motion for cause shown. 19 Whenever the judge who heard the cause shall die, resign, or vacate the office before the expiration of his term, or when- ever he shall be unable to settle the case for review by reason of sickness, absence from the state, or for any other cause whatsoever, within the time prescribed by the statute and rules of practice, such evidence may be settled by any other judge of the same circuit, and in case there shall be no other judge of such court, or in case of his or their absence or dis- ability from any cause, then such evidence may be settled by the successor of such judge, if not disqualified, or by any cir- cuit judge. 20 The several sections of Rule Sixty-six and Chapter Fifty of the Judicature Act before cited cover the practice in relation to the settlement of the evidence in chancery cases for review in the Supreme Court. It should be remembered, however, that in all chancery appeals a written claim of ap- peal must be filed within twenty days from the time of the entry of the decree or order appealed from, and within the same time the fee of five dollars paid to the clerk of the court for making the return, whether the case for review is yet set- tied or not. The requirements of this rule. No. 6G, are man- datory and can be waived only in writing duly filed and pre- sented as the foundation for the action of the court. 21 485, Duty of Clerk. Within fifteen days after an appeal is perfected it is the duty of the clerk of the court, upon the payment to him by the 19. C.. C. { Rules, 1916, No. 66, Judge, 117 Mich. 318, 75 N. W. R. Sec. 11; Cummins & Beecher's 609; Hayes v. Ionia Circuit Mich. Rule Book, page 655. Judge, 125 Mich. 277, 84 N. W. R. 20. C. C. Rules, 1916, No. 66, 141; Kaiser v. Circuit Judge, 162 Sec. 12; Cummins & Beecher's Mich. 247, 127 N. W. R. 336;. Mich. Rule Book, page 656. Pettinger v. Circuit Judge, 164 . 21. Burgess v. Circuit Judge, Mich. 463, 129 N. W. R. 676. 171 Mich. 583, 137 N. W. R. 247; The notice and showing re- Hill v. Hill, 114 Mich. 599, 72 N. quired by the Rule may be waived W. R. 597: Lake Shore & M. S. R. under certain circumstances; Wil- R. Co. v. Circuit Judge, 116 Mich. kins v. Circuit Judge, 125 Mich. 399, 74 N. W. R. 529; Roach v. 62& 84 N. W. R. 1107; Culver v. Circuit Judge, 117 Mich. 242, 75 Circuit Judge, 141 Mich. 644, 105 N. W. R. 465; Singer v. Circuit N. W. R. 139. 360 OI;K;I\AI. FII.KS .MAY r.i: IUSI-HNSKK WITH 48G appellant of the sum of I'm* dollars jis liis fee, to. attach to- gether the original bill. process, answer, and all other pro crcdings. processes, niolions. notices, orders and derives which have been tiled in the cause, together with The testimony as settled, signed and cerlitied to by the judge, as well as a copy of all joni-nal or calendar entries and all other proceedings of record in the cause not embraced in the original papers above mentioned, and transmit the same to the Supreme Court, to- gether with his certiticate of the genuineness of such originals and the correctness of such copies of such journal and calendar entries and records. The appeal will be deemed to have been perfected upon the filing of the claim of appeal and payment of the clerk's fee at any time within twenty days after the entry of the order or decree appealed from, unless it shall be necessary to settle a case. In all causes where it becomes necessary to settle a case for review, the appeal will be deemed 1o have been perfected when snch case shall be settled .and signed. " 486. Original Files may be Dispensed with When. The new circuit court rules provide that "in cases removed to the Supreme Court for review by a writ or error, case made, or appeal, the transcript of the record in writs of error and the transmission of the original liles in appeal cases may be dispensed with under the following circumstances and condi- tions: The appellant shall attach to the bill of exceptions, case made, or case settled, but separate therefrom copies or a fair abstract of each material pleading and document, order, verdict, judgment or decree filed of record in the case, all to be arranged chronologically; those made or tiled before the judgment, order or decree to appear before the statement relat- ing to the testimony; those made or entered after the trial to be entered after the statement made of the testimony : all to be duly settled and certified by the judge. The clerk forthwith, after filing of the same, shall transmit the same to the clerk of the Supreme Court, which shall be the record of said court for further action in the case, unless the Supreme Court shall. 22. C. L. 1916, (13759); P. A. National Bank v. Gaukler, 164 1915, .Act No. 314, Ch. 50. Sec. 24, Mich. 215, 129 N. W. R. 195; page 339; Cummins & Beecher's Macomber v. Cottrell, 162 Mich. Mich. Judicature Act, 1881; 720, 127 N. W. R. 402; Hulan v. Winegar v. Fritz, 164 Mich. 427, Circuit Judge, 159 Mich. 608, 124 129 N. W. R. 878; Commercial N. W. R. 574. 361 A1TKALS TO SUPREME COURT by order, require further copies or abstracts of such pleadings ;iiid proceedings, or the originals thereof, to be returned. A fee of five dollars shall be paid to the clerk for the tiling and transmission of such substituted record, which shall be in lieu of all other fees for making a return on such appeal. By consent of the parties or on order of the trial judge or of the Supreme Court, any original document shall be presented to the Supreme Court for inspection through the clerk of the lower court or the attorneys in the cause. 23 While the language of this rule seems to be broad enough to include chancery appeals, there may be a serious question whether it was so intended or can be so applied. The author- ity of the Supreme Court to prescribe rules of practice in the circuit courts is found in Section Five of Article Seven of the constitution, as follows: "The Supreme Court shall by general rules establish, modify and amend the practice in such court, and in all other courts of record, and simplify the same.'' It is a question whether under this constitutional provision and statutory enactments the Supreme Court can by rule modify a statutory enactment as to practice. 24 The Judicature Act provides that in all chancery appeals the origi- nal bill, pleadings, process, etc., shall be returned with a chancery appeaj. 2r ' The same act in regard to the authority of the Supreme Court to prescribe rules of practice in the circuit courts provides that u the Supreme Court shall amongst other things regulate and prescribe the practice therein, and in the circuit court where the same is no,t prescribed by any statute in relation to bills of exceptions, cases made by the parties, special verdicts, granting new trials, motions in arrest of judgment, taxation of costs, giving notice "of special mo- tions and of such other proceedings as the court may think propel-, staying proceedings when necessary to prevent in- justice, and the hearing of motions, imposing terms in their discretion on granting such motions."- 11 Section Fourteen of Chapter One of the .Judicature Act also provides that "the justices of the Supreme Court shall have power, and it shall be their duty, by general rules to establish and from time, to 23. C. C. Rules, 1916, No. 68; 1915, Act No. 314, Ch. 50, Sec. 24, Cummins & Beecher's Mich. Rule page 339; Cummins & Beecher's Book, page 659. Mich. Judicature Act. 1881- 24. Byrne v. Gypsum Plaster 26. C. L. 1915. J 12029 ); P. A. & Stucco Co., 141 Mich. 62, 104 1915, Act No. 314, Ch. 1, Sec. 24. N. W. R. 737. page 7; Cummins & Beecher's 25. C. L. 1915, (13759); P. A. Mich. Judicature Act, 191. .362 I:XTI:\SIO\ or TI.MI: KOI: MAKIM; KK/ITRX tinir thereafter to amend the practice in such Court. ;iinl in ;ill other courts of record, /// <-'/\r.v nut /trnritli . US. which provides for the return and transmission on appeal of copies or abstracts of plead in;s and process instead of the originals, if it is to he applied to chancery appeals, is in direct conflict with the provisions of the .Judicature Act, which require the originals to lie re- turned to the Supreme Court in all chancery appeals. 487. Extension of Time for Making Return. The time for returning the record to the Supreme Court in chancery appeals may he extended ly one of the justice* <>! the Supreme Court, or a circuit jud.ue. for uood cause shown, and any order -jjrantinj; such extension must lie returned with the other papers to the clerk of the Supreme Court.- 7 Notice of the time and place of making application for such ex- tension, together with .copies of the affidavits upon which the .'pplication is based, must he served upon the adverse party at least four days before the time the application is to be made, All appeals are statutory, and. in the absence of statutory authority, no rijjht of appeal exists.-" ft is a remedy which the legislature in its discretion may jjraut or take away, and it may prescribe in what cases and under what conditions or circumstances appeals may be faken : and unless the statute expressly, or by plain implication, provides for an appeal from a judgment of a court <>f inferior jurisdiction, none can be taken. And even where a parly has a clear ri;ht to appeal if undertaken within the time ami under the circumstances and conditions prescribed by the statute, such conditions must be performed within the time, and substantially as pre- scribed. It follows, therefore, that all of the requirements of the statute relating to appeals are jurisdictional and must 27. Supreme Court Rules. No. 45 Mich 224. 7 N. W. R. 84, 762; 16; Cummins & Beecher's Mich. Tucker v. Stone, 92 Miy leaving the same in his office with his clerk or with a person having charge of such office; 29. Portage Lake & L. S. S. N. W. R. 741. Canal Co. v. Haas. 20 Mich. 326; 31. Supreme Court Rule No. Canfield v. Brigg City of Erie, 21 8; Cummins & Beecher's Mich. Mich. 160; People's Ice Co. v. Rule Book, page 506. Steamer Excelsior, 43 Mich. 336, 32. Supreme Court Rule No. 9; 5 N. W. R. 398. Cummins & Beecher's Mich. Rule 30. Cameron v. Calkins, 43 Book, page 506. Mich. 191, 5 N. W. R. 292; Gram 33. Supreme Court Rule No. v. Wasey, 45 Mich. 223, 7 N. W. 21; Cummins & Beecher's Mich. R. 767; Lake Shore & M. S. R. R. Rule Book, page 513. Co. v. Chambers, 89 Mich. 5, 50 364 COURT MAY I'lUKi'T AlANMIU oF SDUVICE 492 (3) "When IK person is to be found in his otlice, liy leaving the same between the hours of six in the morning ;m 493. Practice Relating to Motions. All motions and affidavits in support thereof to be made in the Supreme Court must be typewritten or printed and filed with the clerk. The motion must contain a brief statement of the object and grounds of the same. All papers tiled by either party on motions must contain proof of service of the same on opposing- counsel. No oral arguments will be heard on motions (except where constitutional questions are in- volved) unless by special permission of the court first ob- tained. When oral arguments are permitted they will be lim- ited to fifteen minutes on each side unless further time is granted by the court before the argument is commenced. :;s Notice of argument of motions, together with copies thereof and of the affidavits on which they are based, must be served upon the opposing attorney at least four days before the time noticed for hearing the motion, unless the opposing attorney resides outside the City of Lansing, in which case the time of service must be increased one day for every additional one hundred miles or fraction thereof between his place of resi- dence and the City of Lansing. 39 494. Motion Days and Motion Docket. The motion days in the Supreme Court are Tuesday of each week during the term, on which days motions will have prefer- ence over calendar causes, and all special motions must be noticed for one of these days. Motions will be heard on the days for which they are noticed unless adjourned over to a subsequent motion day, or unless there is not time to hear the same on the day for which they are noticed, in which case they will be heard on the next succeeding day. 40 Each party is required to submit a printed or type written brief at the 37. Supreme Court Rule No. 39. Supreme Court Rule No. 26; Cummins & Beecher's Mich. 28; Cummins & Beecher's Mich, Rule Book, page 515. Rule Book, page 515. 38. Supreme Court Rule No. 40. Supreme Court Rule No. 27; Cummins & Beecher's Mich. 29; Cummins & Beecher's Mich. Rule Book, page 515. Rule Book, page 516. 366 VI [CB OF Ail', I MKNT ul- CA! lime motions are argued." The clerk of the Supreme Court i> required to keep :i motion docket. :nnl to enter therein motions tiled in the order in which they were delivered to him. and on the opening of court on motion days to present such docket to tin- court. Motions will he called in the order in which they appear on the docket., and no motion will he en teriained unless brought he fore the court in the manner pro- vided for by the rules of court. tj The time limited by the rides of court for making motions or applications, or giving any notice, or taking any action, may be shortened or ex- tended in any case by the court or any justice thereof, unless the time is limited by statute." No private agreement or con sent between the parties or their attorneys in regard to the proceedings in any cause will be recognized by the court as binding unless the same is reduced to writing, signed by the parly or his attorney against whom the same shall be allege. I. and tiled in the ollice-of the clerk of the court." 495. Notice of Argument of Causes. After the record in an appeal case has been tiled in the Su- preme Court and the time for tiling the same has elapsed, either party may notice the case for hearing. Such notice must be given at least thirty days before the first day of the term at which the argument is desired. 47 ' The notice of hear- ing and argument must he served on the attorney for the op- posite party, and proof of such service by affidavit must he made, showing the time and manner of such service, and such proof of service must be tiled in the olliee of the Supreme Court. The party noticing a calendar cause for hearing must, at least twenty days before the tirst day of the term for which the same is noticed, give notice to the clerk of the Supreme Court to place the cause on the calendar for that term. The priority of causes on the calendar as tirst made up depends 41. Supreme Court Rule No. 20; Cummins & Beecher's Mich. Rule Book, page 516. 42. Supreme Court Rule No. 31 ; Cummins & Beecher's Mich. Rule Book, page 516. 43. Supreme Court Rule No. 32; Cummins & Beecher's 'Mich. Rule Book, page 517. 44. Supreme Court Rule No. 33; Cummins & Beecher's Mich. Rule Book, page 517. 45. Supreme Court Rule No. 34; Cummins & Beecher's Mich. Rule Book, page 517; Bryne v. Gypsum Plaster & Stucco Co., 141 Mich. 62, 104 N. W. R. 410. 367 49G . APPEALS TO SUPREME COURT upon the date of filing the notice of hearing with the clerk. No cause will be entered on the calendar nntil the record on appeal shall have been filed with the clerk, nor without notice to the clerk as above stated. Causes may be placed lower down on the calendar, or grouped to suit the convenience of counsel, by filing a stipulation to that effect not later than the Saturday before the first day of the term. After the calendar has been rearranged by the clerk no further change can be made by counsel, except to continue or place at the foot of the calendar. In cases where counsel are not present in court, notice of motions for continuance to be heard on the first da\ of the term must be given at least twenty-four hours previous thereto, and if for any subsequent day two days notice must be given. 46 496. Record to be Printed and Served. In all chancery appeals the appellant must prepare a printed record for the use of the court, which is required to contain all of the testimony, and so much of the pleadings, record and proceedings (and no more) as may be necessary to present the questions raised. The date of the official filing of each plead- ing set out or referred to in the record must be stated. All records, arguments and briefs printed for the use of the court must be in small pica type, twenty-four pica "ems" to the line, thirty-five lines to a page, leaded with four-to-pica leads, and printed upon un glazed paper. The record must have a suit- able cover containing the title of the court and cause, the court from which the case is appealed, and the name of .the judge before whom the cause was heard. The size of all printed records and briefs must be nine and one quarter by six and one quarter inches. Any record or brief which fails to meet these requirements will not be received by the clerk. 47 The record must contain a complete index of the names of the wit- nesses whose testimony appears therein, and a reference to the 46. Supreme Court Rule No. Mich. 605, 119 N. W. R. 906; En- 44; Cummins & Beecher's Mich. terprise Foundry Co. v. Iron Rule Book, page 525. Moulders Union,' 149 Mich. 32, 122 47. Supreme Court Rule No. N. W. R. 685. A decision by four 35; Cummins & Beecher's Mich. justices of the Supreme Court, in Rule Book, page 518 ; Dolph v. a case heard by seven, establishes Norton, 158 Mich. 426, 123 N. W. the law of the case; Dolph v. R. 13; In re Sullivan, 165 Mich. Norton, 158 Mich. 417, 123 N. W. 588, 131 N. W. R. 180; Bedard v. R. 13; Weller v. Wheelock, 155 Simons, 160 Mich. 547, 125 N. W. Mich. 698, 118 N. W. R. 609. R. 381; Frolich v. Blackstock, 155 368 CONTKNTS AMt SKKVH'i: or I'.KIKIS 497 )>.-mes whereon the examination, cross cxaminat ion ;ui(l re- direct examination is found; also the pages whereon any exhibit appcai-s. and in Id-id' form the substance of cadi ex hihit. The index must he printed in the front of the. record. No record will he received by the clerk which does not contain an index arranged snhstant ially as above required." In all chancery appeals the appellant is required to cause the record to he printed as soon as pract icable after the filing of the return in the oflice of the clerk of the Supreme Court, and as soon as the printing is completed to serve at least two copies of the same upon counsel for the appellee; and before the first day of the term at which the cause is noticed for argument he must tile with the clerk of the Supreme Court at least eighteen printed copies thereof. In all cases the appel- lant must serve the printed record on counsel for the appellee within thirty days after the filing of the return in the Supreme Court, and within the time allowed hy rule for the service of the first brief, unless further time therefor shall be granted. This provision does not give the appellant thirty days in every case, but only so much time as is reasonably necessary after the tiling of the return in the Supreme Court. If the appellant fails- to print and serve the record within the time as above stated, or within such further time as may be granted on motion, the court may, on motion of the appellee, dismiss the case and award costs to the appellee, or grant further time for compliance with such requirements on such terms as shall be proper. If the appellant, fails to have the printed record filed before the first day of the term for which the cause is regularly noticed for argument, the cause will be stricken from tin- calendar on the first day of the term, and may be further dealt with as justice may require. 49 497. Contents and Service of Briefs. Briefs must be printed in the same kind of type and must be of the same size as the record. The brief of the appellant, if he is also the plaintiff, must contain a clear and concise statement of the facts of the case, distinct from argument, and the questions involved and the manner in which they are raised. The court will consider such statement sufficient and 48. Supreme Court Rule No. 49. Supreme Court Rule No. 36; Cummins & Beecher's Mich. 38; Cummins & Beecher's Mich. Rule Book, page 518. Rule Book, page 519. 369 APPEALS TO SUPREME COURT accurate unless the opposite party sliall point out in his brief wherein such statement is insufficient or inaccurate. 50 After a hearing and decree in a chancery case it is the duty of the plaintiff to furnish the Supreme Court with the first brief, no matter which party appeals. 51 If the defendant's brief points out no error or insufficiency in the statement of facts contained in the plaintiff's brief, but contains an entirely distinct statement of facts in disregard of this rule, the Court will accept the statement as contained in the plaintiffs brief and consider only the questions raised thereby. 52 As a matter of convenience to the court and counsel, any alleged inaccuracy or insufficiency in the plaintiffs statement of facts should appear in the beginning of the plaintiffs brief. 53 The purpose and object of requiring a statement of facts, of the questions involved, and of the manner in which they are raised to be clearly and concisely set out in the plaintiff's brief, is to save the court the* time of going through voluminous records to ascertain the questions which it is required to pass upon in the controversy, and the rule should be strictly and conscientiously followed and complied with. 54 Counsel for the defendant should in all cases carefully ex- amine the statement of facts contained in the plaintiffs brief in connection with the record, and if found to be incorrect or insufficient in any material particular, the precise error or insufficiency should be pointed out, and the correction made or the deficiency supplied, with a reference to the part of the record sustaining his statement. 55 *50. Supreme Court Rule No. Rule Book, page 521. This rule 40; Cummins & Beecher's Mich. is the same as former Rule No. Rule Book, page 521. 61, which has been cited or con- 51. Pinel v. Pinel, 172 Mich. strued in the following cases: 611, 146 N. W. R. 117; Chase v. Schulte v. Kelly, 124 Mich. 330, Michigan United Ry. Co., 165 83 N. W. R. 405; People v. Jamie- Mich. 493, 131 N. W. R. 118. son, 124 Mich. 164, 82 N. W. R. 52. Haden v. Closser, 153 Mich. 835; Shinglemeyer v. Wright, 124 183, 116 N. W. R. 1001. Mich. 230, 82 N. 'W. R. 887; Car- 53. Monger, v. New Era Asso- mer v. Hubbard, 123 Mich. 333, elation, 145 Mich. 685, 108 N. W. 82 N. W. R. 64; Gerardo v. Brush, R. 1111; Shinglemeyer v. Wright, 120 Mich. 405, 79 N. W. R. 646; 124 Mich. 238, 82 N. W. R. 887, Webber v. Hayes, 117 Mich 256, 50 L. R. A. 129. 75 N. W. R. 622; Hoffman v. Pack, 54. Ferguson v. Wilson, 122 114 Mich, page 1, 67 N. W. R. 118; Mich. 98, 80 N. W. R. 1006. French v. Ryan, 104 Mich. 625, 62 55. Supreme Court Rule No. N. W. R. 1016; Zimmerman v. 40; Cummins & Beecher's Mich. Dolph, 104 Mich. 282, 62 N. W. R. > 370 \\i> si:i:\ in: n\- r.uii:rs T\v<> copies of the appellant's 111 id' linisl he served upon the ;ippellee ;is soon ;is printed. ;ind :it le;ist twenty days hefore llie tirst day of the term at which the cause is regularly noticed I'm- hearing- Two copies of the appellee's hrief must he serveil upon appellant's counsel as soon as printed, and at le;ist live days hefore the lirst day of the term at which the cause is regularly noticed for hearing; hnt if the printed record and appellant's hrief shall he served thirty days hefore the term. the appellee's hrief must, in such case, he served at least lifteen days hefore the lirst day of the term. The foregoing provisions apply in chancery appeals where the plaintilV is also appellant, or when the defendant appeals from an order overruling or denying a motion to dismiss. In other chancery cases heard on pleadings or on pleadings and proofs, when the plaintiff is appellee, his hrief must he served upon the defendant at least lifleen days hefore the lirst day of the term at which the cause is regularly noticed for hearing KM- within ten days after service (if the printed record hy appellant, if the same is not served at least twenty live days hefore the tirst day of the ierini: and the appellant's hrief must he served at leas! live (lays hefore the lirst day of the term i or within ten days after service of the plaintiff's hrief. The tirst hriefs are expected to fully and fairly present tin- case on each side, and supplemental hriefs may he printed and served at any time hefore the cause is placed upon the call for argument, hut suhsequently hy permission of the court only. It is not uood practice, and the court will he likely to dis- approve it. to present the cause only partially in the lirst hrief. to he more fully presented in a supplemental hrief after having received the hrief of the other party. The lirst hrief of either party should present his view of the case- fully and completely. and a supplemental hrief should he employed only to anv\\ i that which has heen presented hy the hrief of the opposite party. If the hrief of either party is not served within the time ahove mentioned, the opposite party, on the lirsl day of the 339; Mason v. Partrick, 100 Mich. R. 788; Sullivan v. Hall. 86 Mich. 580. 59 N. W. R. 239; Dake En- 7, 48 N. W. R. 646; Black v. Daw- gine Mfg. Co. v. Hurley, 99 Mich. son, 82 Mich. 485, 46 N. W. R. 19, 57 N. W. R. 1044; Graves v. 793; St. James v. Erskine, 155 Battle Creek, 95 Mich. 266, 54 N. Mich. 606, 119 N. W. R. 897; Car- W. R. 757; Lynch v. Craney, 95 mer v. Hubbard, 123 Mich, 333, Mich. 200, 54 N. W. R. 879; Busch 82 N. W. R. 64. v. Fisher, 89 Mich. .193, 50 N. W. 371 5498 APPEALS TO SUI'BEME COURT term, may at his option have the cause placed at the foot of the calendar, or continued, and the court in proper cases may order the payment of a counsel fee by the party in default. 56 Eighteen copies of the brief for each party must be filed with the clerk of the Supreme Court at least forty-eight hours before the case is placed on call. No oral argument will be allowed a party who has failed to comply with this provision. 07 498. Call of Cases and Argument. On the first day of thfe term the first business transacted is usually hearing 1 and disposition of motions. After motions are disposed of the court will begin the calling of the calendar cases for argument in the order in which they stand on the re- arranged calendar, and proceed in the same order from day to day, and if the parties or either of them are ready for argu-, ment when the case is called the same will be heard. If neither party is ready to proceed with the argument the cause will be regarded as submitted on briefs. After a cause has been placed on call it cannot be withdrawn, .except to continue the same, and a continuance will be granted only upon a sufficient showing of the death or illness of counsel. Fifteen cases are liable to be placed on call each day during the term. No cause will be taken up out of its order or set down for a day certain, except under special and peculiar circumstances to be shown to the court. On motion days motions take precedence over calendar causes. 58 While as a general rule the court will not consider and pass upon a question on appeal which was not presented or raised in the lower court, still, in the exercise of its appellate juris- diction, the court may, and sometimes does, direct the atten- tion of counsel to questions it deems material to a just and equitable disposition of the case, and request argument of counsel thereon, although such questions were not raised or argued by counsel in the lower court on the trial. 59 56. Supreme Court Rule No. 41; Cummins & Beecher's Mich. Rule Book, page 523. 57. Supreme Court Rule No. 42; Cummins & Beecher's Mich. Rule Book, page 524. 58. Supreme Court Rule No. 45; Cummins & Beecher's Mich. Rule Book, page 526. - 59. C. L. 1915, (12016); P. A. 1915, Act No. 314, Ch. 1, Sec. 11, page 5; Cummins & Beecher's Mich. Judicature Act, 178; Gadd v. City of Detroit, 142 Mich. 685, 106 N. W. R. 210; Auditor Gen- eral v. Bolt, 147 Mich. 286, 111 N. W. R. 74; C. L. 1915, (12010); P. A. 1915, Act No. 314, Ch. 1, Sec. 5, page 4; Cummins & Beecher's Mich. Judicature Act, 172. 372 TAXATI'iX t>l - COSTS i I'.l'.t The inn-lies :irc entitled to ;in oi-;il argument in :ill calendar causes :iinl iipmi all motions involving const itui ional qites- liolis. Two eollliscl on each side may be lieai'il ill llie oral ar- gument of calendar causes. The time allowed for oral argu- ment in causes involving live hundred dollars or less is not more than one halt hour on each side. In all other calendar causes the t ime allowed will not exceed one hour on each side. The time for argument may he extended by the court, upon ap plication granted before the argument is commenced.' 1 " Any cause may be submitted upon briefs at any time. 111 499. Taxation of Costs. The necessary expense of printing the record anil briefs re quired by the rules of practice may lie taxed as disbursements in favor of the parly prevailing in the cause. 02 If the appel- lant prevails in the Supreme Court, he is also entitled to tax as costs the -sum of five dollars paid to the clerk of UK- circui' court for the return, and the sum of six dollars paid the clerk of the Supreme Court for the entry fee in that court. A counsel fee will be awarded the prevailing party in the Supreme Court, unless otherwise ordered, in addition to such other costs as he may be entitled to, as follows: On motions which do not linally dispose of the case, ten dollars; on man- damus and certiorari heard as motions, fifteen dollars; on mo- tions which linally dispose of the case, twenty dollars; on cal- endar causes, thirty dollars. 63 The costs will be taxed by the clerk of the Supreme Court on notice of not less than four days. If the party upon whom such notice is to be served resides outside the City of Lansing, the time of serving a notice of taxation of costs must be one day for every additional one hundred miles, or fraction there of. between his place of residence and the City of Lansing, but no not ire of more than ten days need be ^ivcii. The notice must be accompanied by a copy of the bill proposed to be 60. Supreme Court Rule *No. County Treasurer, 8 Mich. 392. 46; Cummins & Beecher's Mich. 62. Supreme Court Rule Xo. Rule Book, page 526. 48; Cummins & Beecher's Mich. 61. Supreme Court Rule No. Rule Book, page 527. 47: Cummins & Beecher's Mich. 63. Supreme Court Rule Xo. Rule Book, page 527; Harrington 49; Cummins & Beecher's Mii-h. v. Wands, 23 Mich. 385; Detroit Rule Book, page 528. Board of Education v. Wayne 373 APPEALS TO SUPUKME COT'RT taxed, aiul the affidavit of disbursements proposed to be read in support thereof. The notice may be served by mail, and the time and manner of service must be shown by the affidavit of the person making the same. 64 64, Supreme Court. Rule No. 50; Cummins & Beecher's Mich. Rule Book, page 528. The ques- tions involved in the Rules in re- lation to the award and taxation of costs are passed upon in the following cases: Lester v. Sut- ton, 7 Mich. 329; Wilson v. Wil- son, 6 Mich. 272; 'holding that in preparing a case for argument in the Supreme Court on a chancery appeal, counsel must exercise their own judgment and discre- tion as to whether they will print the whole evidence, or omit the formal and, what may be deemed, the unimportant portions; and the court on taxation of costs will not interfere with the exer- cise of such discretion unless it clearly appears to have been abused. McCurdy v. Clark, 27 Mich. 445; Whiting v. Butler, 29 Mich. 122; Adams v. Champion, 31 Mich. 233; Crittenden v. Schermerhorn, 35 Mich. 370; Howe v. Lemon, 37 Mich. 164; Fredenburg v. Turner, 37 Mich. 402; Sager v. Tupper, 38 Mich. 259; Barnard v. Colwell, 39 Mich. 215; Brown v. Blanchard, 40 Mich. 61 ; VanDeusen v. New- comer, 40 Mich. 525; Michigan Mutual Life Ins. Co. v. Conant, 40 Mich. 530; Evans v. Suther- land, 41 Mich. 177; 1 N. W. R. 927; Stebbins v. Field, 41 Mich. 373, 2 N. W. R. 190; Arnold v. Bright, 41 Mich. 416, 2 N. W. R. 16; Maxwell v. Bay City Bridge Co., 42 Mich. 67, 51 N. W. R. 963; Clark v. Sable, 44 Mich. 1; Ludington y. Melendy, 44 Mich. 560, 7 N. W. R. 240; Wright v. Smith, 44 Mich. 560, 7 N. W. R. 240; Dickinson v. Seaver, 44 Mich. 633, 7 N. W. R. 182: Engle v. Hall, 45 Mich. 57, 7 N. W. R., 239; Demill v. Moffat, 45 Mich. 410. 8 N. W. R. 79; Watts v. Tittaba- wassee Boom Co., 47 Mich. 540, 11 N. W. R. 377; Bates v. Desen- berg, 47 Mich. 643. A charge for , obtaining a copy of the record for the printer is a proper item in taxing costs. Botsford v. Murphy, 48 Mich. 642; Wildey v. Farmers' Mutual Fjre Ins. Co., 49 Mich. 264, 13 N. W. R. 583; Johnson v. Rose, 50 Mich. 334, 15 N. W. R. 497; Rice v. Rice, 50 Mich. 448, 15 N. W. R. 545; McKenna v. Kirkwood, 50 Mich. 5.44, 15 N. W. R. 898; Erickson v. Mich. Land & * Iron Co., 50 Mich. 604, 16 N. W. R. 161; Port Huron v. Chadwick, 52 Mich. 320, 17 N. W. R. 929; Clark v. Wiles, 54 Mich. 324, 20 ' N. W. R. 63; Case v. Dewey, 55 Mich. 117, 20 N. W. R. 21, 911; .Singer Mfg. Co. v. Benjamin, 55 Mich. 330, 21 N. W. R. 358; New- kirk v. Newkirk, 56 Mich. 525, 23 N. W. R. 206; Wilson v. Pontiac, O. & P. A. R. Co., 57 Mich 155, 23 N. W. R. 627; See v. Derr, 57 Mich. 369, 24 N. W. R. 108. Costs were withheld where, on review, the court was equally divided. Benedict v. Crookshank, 58 Mich. 107, 24 N. W. R. 795; Jeffery v. Hursh, 58 Mich. 247, 25 N. W. R. 176; Smith's Estate, 60 Mich. 136, 27 N. W. R. 80; Thurstin v. Luce, 61 Mich. 486 & 292, 28 N. W. R. 103; Dayton v. Dayton, 68 Mich. 437, 36 N. W. R. 209; New Home Sewing Machine Co. v. Bothane, 70 Mich. 443, 38 N. W. R. 326; Chadwick v. Walsh, 70 Mich. 627, 38 N. W. R. 602; Hilliker v. Coleman, 73 Mich. 170, 41 N. W. 374 i-oi; KKMKAUIM; COSTS $500. Application For Rehearing Costs. Whenever a cause is heard by ;i (|ue granted only where it is ele;ii-ly shown tjiat there is some mistake or error in the decision of the court. In all applications for rehearing, whether hy reason of Iheiv having been a dissenting opinion tiled in a cause which was heard by a quorum of live justices only or for any other rea- son, 11u moving party must, at as early a date as may be prac- ticable, cause any and all papers upon which s'uch application is based, together with his* reasons for granting the same, in lie printed and twelve copies thereof to be tiled with the clerk of the Supreme Court, and a copy of the same to be served up- on counsel for the opposite party: and no such application will be considered by the court unless the foregoing provisions are complied with. I 'roof of such service must also be tiled with the clerk of the Supreme Court. After the expiration of not less than four days after such service the court will ex- amine the papers and, without further argument, unless spe cially ordered, will pass upon the application. The party op- posing the application may tile with the clerk his objections thereto, either printed or typewritten as he may prefer, at any time before the application is decided. If the application is denied the opposing party will be entitled to tax a motion fee R. 216; Bourgette v. Williams, 73 Shanahan. 93 Mich. 486, 53 N. W. Mich. 208. 41 N. W. R. 229, Snell R. 624; Sanford v. Rowley. 93 v. Race, 78 Mich. 334, 44 N. W. Mich. 509, 52 N. W. R. 1119; R. 286; Maltby v. Plummer. 73 Maxted v. Fowler, 94 Mich. 107, Midi. 539, 41 N. W. R. 683; Kent 53 N. W. R. 921; Rayl. v. Ham- County Agricultural Society v. mond's Estate, 95 Mich. 22, 54 N. Houseman, 81 Mich. 609, 46 N. W. W. R. 693; Turner v. Muskegon R. l. r >; Thayer v. Grand Rapids, Machine & Foundry Co.. 97 Mich. 82 Mich. 298. 46 N. W. R. 228; 177. 56 N. W. R. 356; Wheeler v. Lambert v. Weber, 83 Mich. 395, Meyer, 101 Mich. 465, 59 N. W. 47 X. W. R. 251; Muskegon v R. 811; Roby v. Gray. 73 Mich. Martin Lumber Co., 86 Mich. 625. 363. 42 N. W. R. 839. 49 N. W. R. 489; DeLong v. 65. C. L. 1915. (12010); P. A. Muskegon Booming Co., 88 Mich. 1915. Act No. 314, Ch. 1. Sec. 5. 282. 50 N. W. R. 297; Hall v. page 4: Cummins & Beeclu-r's Concordia Fire Ins. Co.. 90 Mich. Mich. Judicature Act, 171'. 403. 51 N. W. R. 524; Davison v. 375 5500 APPEALS TO SUPREME COURT of fifteen dollars and the expense of printing a brief if one has been furnished. 66 66. Supreme Court Rule No. 51; Cummins & Beecher's Mich. Rule Book, page 528. An appli- cation for a re-hearing based upon a showing of facts already upon the record, or that would not ma- terially alter or add to the case made on the first hearing, will be denied; Taylor v. Boardman, 24 Mich. 287. The questions relating to the practice in the Supreme Court under this Rule, relating to re-hearings, are .passed upon or referred to in the following cases: Adams v. Field, 25 Mich. 16; Case v. Case, 26 Mich. 493; Hutchins v. Kimmell, 31 Mich. 127; Detroit Savings Bank v. Truesdail, 38 Mich. 431; Vanneter v. Crossman, 39 Mich. 611; Thompson v. Denison, 40 Mich. 526; Kraft v. Raths, 45 Mich. 21; Peoples v. Evening News Associa- tion, 51 Mich. 21, 16 N. W. R. 185; Maclean v. Soripps, 52 Mich. 256, 17 N. W. R. 815; Reeg v. Burnham, 55 Mich. 56, 20 N. W. R. 708, 21 N. W. R. 431; Morgan v. Michigan Air Line R. Co., 57 Mich. 456, 25 N. W. R. 161, 26 N. W. R. 865; Smith v. Walker, 57 Mich. 484, 22 N. W. R. 267, 24 N. W. R. 830, 26 N. W. R. 783; Johnston v. Davis, 61 Mich. 278, 28 N. W. R. 98; Rossman v. Ross- man, 62 Mich. 439, 29 N. W. R. 33; Brown v. Brown, 64 Mich. 83, 32 N. W. R. 633; Cobbs v. Fire Association, 68 Mich. 465, 36 N. W. R. 222; Auditor General v. Hill, 98 Mich. 329, 57 N. W. R. 168; Sherwood v. Central Mich. Savings Bank, 104 Mich. 65, 62 N. W. R. 294; McDonald v. McKin- non, 104 Mich. 429, 62 N. W. R. 560; John Hutchison Mfg. Co. v. Pinch, 107 Mich. 12, 64 N. W. R. 729, 66 N. W. R. 340; Ewing v. Ainger, 97 Mich. 381, 56 N. W. R. 767. A re-hearing on the same facts and legal controversy is not usually granted unless there has been some very peculiar assump- tion or defect on the first hearing by which the court and parties have been* misled, and the case must be an extraordinary one in which the appellate court will re- voke its decision on any other grounds. Counsel are expected to present in one argument what- ever there is to be presented; and the court will act on the whole record, or so much of it as is material. Brown v. Brown, 64 Mich. 82, 31 N. W. R. 34. 376 TART FIVE. FORMS IX DIVORCE PKOCEDUIJi:. PART FIVE FORMS IX DIVORCE PROCEDURE. - No. 1. Bill of Complaint for Adultery, General Form. No. 2. Bill for Divorce by Wife Adultery. No. 3. Bill for Divorce Physical Incapacity. No. 4. Bill for Divorce, Charging Desertion. No. ~) f Bill Alleging Desertion. No. . Order Pro Confesso for not Answering. Xo. 24. Order Pro Confesso, Defendant Brought in by Publi- ( cation. 4 No. 2."). Affidavit of NOD- Appearance. Xo. 2. Order (irantinjr -Motion to Dismiss Hill. No. :!'. Report of Circuit Court Commissioner :is to Alimony. No. '.\~. Order Continuing Report of Commissioner. No. :ts. Petition for Temporary Alimony ;ind Expenses l>\ Plaintiff. No. :!!. Petition for Alimony ;ind Kxpenses ly Defendant. No. io. Order Allowing Temporary Alimdhy and Kxpenses to Plaintiff. \o. M. Order for Alimony and Expenses to Defendant. No. ii'. Order Denying Temporary Alimony. No. i:i. Demand for Payment of Temporary Alimony. No. -Jl. Affidavit to Olitain an Attacliment for N'on-l'ayinent of Temporary Alimony. k No. f."i. Order to Show Cause \Vliy Attacliment Should not Issue. No. 4(>. Decree of Divorce and for Alimony. No. .~>1. Decree foi- Permanent Alimony After Divorce. No. .">:.'. Decree of Divorce from P.ed and P.nard and for Ali- mony. No. .">::. Decree Annullinir M;irriai;e. N. r>4. I Decree Alliiiiiin^ Marriage. No. .">."). Petition for Re 1 learin.i;. No. ."i('. Order for Re-Hearing. No. .">T. Order Denying Re Hearing. Nu. .~s. ( 'ertiticate of ICnrollmeiit. No. .")!. Discharge and Satisfaction of Decree. No. ',(). Petition for Discharge of Decree. No. ill. Order Discharging Decree. No. I'll'. Order Denying Discharge ..f Decree. No. <;::. Order Directing Proseciitiim Attorm-y to Appear and Defend. (if. Report of Prosecuting Attorney. <;.">. Oi-der A|>pointinj: an Attorney to Defend. 379 FORMS IX DIVORCE PROCEDURE I No. fi(). Claim of Appeal. No. 67. Notice of Appeal and of Application for Approval of Bond. No. v OS. Bond on Appeal. No. G9. Case on Appeal. No. 70. Notice of Settling Case on Appeal. No. 73 . Notice of Amendments to Case on Appeal. 380 FORMS IN DIVORCE PROCEDURE. No. 1. Bill of Complaint for Adultery, General Formi (See Text, 391) STATE OF MICHIGAN. To tin- Circuit Court for the ('(unity of Tn Chancery. plaintiff in this suit, complains of tin- defendant lien-ill. and respectfully represents uuto tliis Honorable Court as follows: I. That . . . .he now is. ;int' Midii-Mii \ Bounty ..t / * , the above named plaintiff, bein^ duly sworn, deposes and says that . . .he has heard read the fore- going bill of complaint by subscribed, and knows the contents thereof, and that the same is true of own knowledge, except as to those matters which are therein stated to be upon information and belief, and as to those mat- ters believes it to be tme. Affiant further states that there is no collusion, understanding or agreement whatever between affiant and the defendant nerein, or between this affi- ant and any other person in relation to this application for divorce. Plaintiff. Subscribed and sworn to before me this day of , A. D. 19 Notary Public County. My Commission expires 19 No. 4. Bill For Divorce Charging Desertion. (See Text, 396) STATE OF MICHIGAN. To the Circuit Court for County. In Chancery. Plaintiff in this suit, complains <>f the defendant herein, and respec- tively shows unto this Honorable Court as follows: I. That ....he now is, and for years and upwards, last past has been, a resident of and domiciled in the County of and State of Michigan. II. That on or about the day of A. D . . .he was duly and legally married, to the defendant herein, at the. A of in the State of * -...., by a duly and 389 NO. 4 FORMS IN DIVORCE PROCEDURE legally authorized to solemnize marriages, and that said par- ties lived and cohabited together as husband and wife from the time of said marriage until on or about the ...?..,.... day of A. D. . , at which time the said defend- ant deserted the plaintiff as is more particularly hereinafter shown. III. That during the time said parties so lived and co-habited together as husband and wife there were born to them , children, the offspring of said marriage of whom are now living, and whose names and ages are as follows IV. The plaintiff further represents that the said the defendant herein, wholly disregarding h. ."y. .marriage vows and obligations afterwards, on the day of A. D wilfully deserted and abandoned the plaintiff, without any reasonable cause, and against the will of the plaintiff for the period of two years and upwards, and has wil- fully persisted in such desertion and still continues the same. V. And the plaintiff positively avers that the acts done by the said defendant, and hereinbefore charged, and for which di- vorce is sought were all committed without the consent, con- nivance, privity or procurement of the plaintiff, and that this bill of complaint is not founded on or exhibited in consequence of any collusion, agreement, or understanding whatever, be- tween the parties hereto, or between the plaintiff and any other person. VI. Inasmuch, therefore as the plaintiff is without remedy in the premises, except in a Court of equity, . . \he prays: (a) That the said. f: who is made a party defend- ant to this bill may be required to answer the same fully and particularly, but without oath, answer on oath being hereby expressly waived. (b) That the marriage between the plaintiff and the said . ft>. ; the defendant herein, may be dissolved and a divorce from the bonds of matrimony decreed, according to 390 r.ii.i. AI.U:<;IN<; I>I;SI:KTIO\ No. 5 tin 1 statute in such rase made and proved. . (c) ThXt tin- plaintiff may be awarded the care, custody ;inl education State of Michigan County of , The above named plaintiff, being duly sworn deposes and says that she has heard read the foregoing bill of complaint by her subscribed, and knows the contents thereof, and that the same is true of her own knowl- edge, except as to those matters which are therein stated to be upon her information and belief and as to those matters she believes it to be true. Affiant further states that there is no collusion, understanding, or agreement whatever, between the parties hereto, or between affiant and any other person in re- lation to her application for divorce. Plaintiff. Subscribed and sworn to before me this day of A. D.. Notary Public. My Commission will expire, No. 6. Bill For Divorce Charging Extreme Cruelty and Asking For Alimony and Custody of Children. (See Text, 394) STATE OF MICHIGAN. To the Circuit Court for County. In Chancery. , plaintiff in this suit, complains of the defendant herein, and respectful- ly shows unto this Honorable Court as follows : I. That she now is, and for more than two years last past has been a resident of, and domiciled in the County of and State of Michigan. II. That on or about the .day of A. D , she was duly and legally married to'. , the defendant herein, at the of". in the 394 I P.I u, AI.I.KI.-IM. niviii:o; No. 6 Slate ol by a Min- ister of tin* gospel, duly and legally authori/cd to solemnize marriages, and that said parties lived and co habited together as husband and wife from the time of such intermarriage un- til on or about the day of \. I> , at which time the plaintiff was compelled to leave the defend ant on account of his cruel and inhuman treatment of her. as is more particularly hereinafter set forth. III. That during the time the said parties so lived and co-hab- it ed together as husband and wife, and up to the time of ex- hibiting this, the said plaintiff's bill of complaint, the said j >lain tiff bore to the said defendant children, the issue of said marriage, of whom are now living and whose names and ages are as follows IV. That the said , the defendant here- in, disregarding the solemnity of his marriage vows and obli- gation, ever since said marriage and especially during the past years, has been guilty of extreme and repeated cruel-' ty toward the plaintiff, that is to say, that the said defendant, on divers and frequent days and times since said marriage has cruelly beaten and struck, kicked and choked her, and has neglected and refused to furnish her and her said children with proper food and clothing, and has frequently used vile, obscene and profane language toward her, and has frequently accused her of unchastity, without any reason or cause what- ever; and particularly, on or about the day of A. D , the said defendant assaulted and beat the plain- tiff and called her vile and obscene names and used toward her language too vile and obscene to be spread upon the records of this Court. V. That on or about the day of A. D. , the said defendant became enraged at the plaintiff and called her vile names and choked her and beat and iM-used her so that she was sick for a long time and was compelled to have the attendance of physicians for several days. 395 No. 6 FORMS IN DIVORCE PROCEDURE VI. That during all of the time said parties lived and co-habited together as husband and wife, she always treated the defend- ant with kindness and consideration and performed all of her wifely duties, and tried and employed her best efforts to please the defendant, but without avail, and his conduct to- ward her became so cruel and inhuman that it was no longer safe for her to live and co-habit with him as his wife, and fear- ing to longer live with him, on account of his cruel conduct, she took her young children and left him on or about the day of . . . . A. D , and has not since lived with him. -, VII. \That since the plaintiff left said defendant he has continued to annoy and abuse her, and has threatened to take said chil^ dren from her by force, and to kill the plaintiff if" she refuses to let him have said children or attempts to prevent him from taking them from her, and she fears and believes, and has good reason to fear and believe that he will carry said threats into execution if not restrained from so doing by the injunction of this Court. VIII. That the said defendant is possessed of real estate of the value of. dollars and upwards, and of personal property of the value of .dollars and upwards, besides the household goods used by said parties during the time they lived together, and he is well able to furnish the plaintiff and her said children with a comfortable living and support, but neglects and refuses to do so; that he threatens and the plaintiff fears that he will carry such threats into exe- cution, to sell his said property and said household goods, or otherwise incumber and dispose of the same to prevent the plaintiff from recovering alimony for the support of herself and children, unless he shall be restrained from so doing by the injunction of this Court. IX. The plaintiff positively avers that the acts done by said de- fendant as hereinbefore set forth, and for which divorce is sought, were all committed without the consent, connivance, 396 BILL ALLEGING DESERTION No. 6 privity or procurement of the plaintiff, and that this bill of complaint is not founded on or exhibited in consequence of any collusion, understanding or agreement between the par- ties hereto, or between the plaintiff and any other person; and that she, the said plaintiff has never been guilty of any of the acts herein charged against said defendant. X. In consideration whereof, and inasmuch as the plaintiff is without remedy in the premises, except in a court of equity. she prays: (a) That the said defendant may be required to answer this bill of complaint fully and particularly, but not on oath, his answer on oath being hereby expressly waived. (b) That the marriage between the plaintiff and the port of said plaintiff and her said children. - -v^. V V4 V (f) That the said defendant may be restrained by the ofr- der and injunction of this honorable Court, from selling, in cumbering, assigning, or otherwise disposing of any of his real and personal property and said household goods, and from in- terfering in any manner with the plaintiff or said children and from taking or attempting to take said children from the custody and control of the plaintiff by force or otherwise un- til the further order of this Court. - (g) That the plaintiff may have such other or further re- lief in the premises as to this honorable Court may seem prop- er and as shall be agreeable to equity and good conscience. May it please the Court, the premises heint: considered to 397 No. 7 FORMS IN DIVORCE PROCEDURE grant unto the plaintiff the people's writ of injunction, re- straining the said defendant from selling, assigning, incum- bering or otherwise disposing of any of his real or personal property and household goods, and from in any manner in- terfering with the plaintiff or said children, and from taking or attempting to take said children from the custody and con- trol of said plaintiff by force or otherwise until the further order of this Court. Plaintiff. Attorney for Plaintiff. Business Address . . State of Michigan County of ' K , the above named plaintiff being duly sworn deposes and says that she has heard read the fore- going bill of complaint by her subscribed and knows the con- tents thereof, and that the same is true of her own knowl- edge, except as to the matters which are therein .stated to be upon her information and belief, and as to those matters she believes it to be true. This affiant further on oath states that there is no collusion, understanding or agreement whatever between the parties, hereto, or between this affiant and any other person in relation to her application for divorce. Plaintiff. Subscribed and sworn to before me this day of .A. D. 19. Notary Public. My Commission will Expire,. No. 7. Bill for Divorce by Wife Charging Habitual Drunkenness. (See Text, 397) STATE OF MICHIGAN. To the Circuit Court for the County of In Chancery. /, Plaintiff in this suit, complains of 398 ,-f O / BILL CHARGING HABITUAL DRUNKENNESS No. 7 the defendant herein, and respect fully shows unto the Court as follows : I. That she now is, and for more than years has been a resident of and domiciled in the County of and State of Michigan. II. That on or about the day of A. D. , she was duly and legally married to , the defendant herein, at in the State of , and the name which she bore prior to said marriage was III. That from and after said marriage said parties lived and co-habited together as husband and wife until on or about the day of A. D. 19 , at which time the plaintiff was compelled to leave the defendant because of his habitual drunkenness, and cruelty toward the plaintiff ;is is more particularly hereinafter set forth. IV. That during the time said parties so lived and cohabited to- gether as husband and wife, and up to the time of exhibiting this the plaintiff's bill of complaint, she-bore unto said defend- ant children, the issue of said marriage, .'. of whom are now living, and whose names and ages are as fol- lows : V. That since said marriage the said defendant disregarding the solemnity of his marriage vows and obligations has be- come an habitual drunkard, and during the past years has squandered his property and earnings in drinking and carousing, and has neglected and misused the plaintiff and their children, to that extent that it is no longer safe or proper for the plaintiff and said children to live with him. 393 2s T O. 7 FORMS IN DIVORCE PROCEDURE > VI. That at the time of said marriage the defendant was a tem- perate and industrious man, and for several years continued to so remain, during which time he accumulated considerable property, by his labor and with the assistance of the plaintiff, amounting to upwards of dollars ; that about years prior to the exhibiting of this bill of complaint, the de- fendant, against the advice and remonstrances of the plaintiff commenced the use of intoxicating liquors, and has ever since been in the habit, of getting intoxicated, and for the past years has become beastly drunk every time he was where he could procure liquor, and for a considerable period of time before the plaintiff left him he was drunk every day ; that when under the influence of liquor the defendant was cross and ugly toward the plaintiff and their children and fre- quently beat and otherwise abused them in a most cruel and inhuman manner. VII. That during all of the time said defendant was acquiring the liquor habit, the plaintiff tried to dissuade him from the use of liquor, and in a kindly manner advised him to break away from the pernicious habit, but without avail; that the habit continued to grow more fixed as time continued until said defendant has 'become such an habitual drunkard that he is entirely unfit to have charge of his family and property. VIII. That the defendant has squandered and spent a large por- tion of his property in drinking and carousing, but is still the owner of the following described real estate which the plaintiff is informed and be- lieves is of the value of dollars, and of personal property of the value of dollars and upwards ; and said defendant is abundantly able to support the plaintiff and their said children out of said property but neglects and re- fuses to do so. IX. That the plaintiff is poor, and has no means of support of herself and children and no means with which to employ coun- sel 'and to prosecute this suit, other than her daily labor at 400 BILL I'll AK'.lN'i IIAHITI'AL DKT'NKENNBSS No. 7 menial work: ih;it she i$ in very poor health ami unable to work much of tin- lime, and requires the services of a physi- cian, but has no means with which to pay for such services; that she is but poorly supplied with clothing for herself ;nnl children, and is obliged to keep said children out of school lie cause of their not having suitable and comfortable clothing. X. That she is informed and believes and therefore alleges the fact to be that the defendant is still squandering his property and the income therefrom in drinking and carousing, and has threatened to sell, incumber, or dispose of such property to prevent the plaintiff from recovering alimony for the sup- port of herself and children, and the plaintiff fears that he will carry such tin-eats into execution, unless restrained from so doing by the injunction of this Conn. XI. The plaintiff positively avers that the acts done and causes for divorce hereinbefore set forth, and for which divorce is sought, were all committed without the consent, connivance, privity or procurement of the plaintiff, and that this bill of complaint is not founded on or exhibited in consequence of any collusion, understanding or agreement whatever, between the parties hereto, or between the plaintiff and any other per- son; and that the plaintiff has never been guilty of any of the acts herein charged against the defendant. XII. In consideration whereof, and inasmuch as the plaintiff is without remedy in the premises, except in a Court of equity, she prays: . (a) That the defendant be required to answer all and singular the matters and things herein charged, but not on oath, his answer on oath being hereby expressly waived. (b) That the marriage between the plaintiff and the de- fendant be dissolved and a divorce from the bonds of matri- mony decreed, according to the statute in such case made and provided. (c) That the care, custody and education of said children may be awarded to the plaintiff. (d) That the defendant may be required by the order and 401 No. 7 FORMS IN DIVORCE PROCEDURE decree of this Honorable Court to pay to the plaintiff a suffi- cient sum of money for temporary alimony and expenses as will enable her to employ counsel and prosecute this suit, and to support herself and children and provide them with cloth- ing during the pendency thereof. (e) That upon the final hearing of this cause the court will decree to be paid to the plaintiff by the defendant such sufficient sums of money as may be necessary for the support of the plaintiff and her said children, as permanent alimony for such purpose. (f) That the defendant may be restrained from selling, assigning, incumbering, or otherwise disposing of his said property or any part thereof until the further order of this Honorable Court. (g) That the plaintiff may have such further or other re- lief in the premises, as to the Court may seem proper, and as shall be agreeable to equity and good conscience. May it please the Court, the premises being considered, to grant unto the plaintiff, the people's writ of injunction, directed to the defendant, restraining him from selling, assign- ing, incumbering or otherwise disposing of any of his said property until the further order of this Court. Plaintiff. Attorney for plaintiff, Business Address State of Michigan \ County of / k , the above named '^plaintiff, being duly sworn, deposes and says that she has heard read the foregoing bill of complaint, by her subscribed, and knows the contents thereof, and that the same is true of her own knowl- edge, except as to the matters which are therein stated to be upon her information and belief, and as to those matters she believes it to be true. Affiant further on oath states that there is ne collusion, understanding or agreement whatever be- tween the parties hereto, or between the affiant and any other person in relation to her application for divorce. / Plaintiff. 402 IUI.1, FOR DIVORCE FROM BED AND BOARD No. 8 and sworn to before me this .......... day of . A. D. 19.. Notary Public. My Commission will expire No. 8. Bill for Divorce From Bed and Board. State of Michigan. The Circuit Court for County. In Chancery. To the Court: , plaintiff in this suit, complains of , the defendant herein, and respect- fully shows unto this Honorable Court as follows: I. That she is a resident of and domiciled in the said County of and has had her residence and domicile in the state of Michigan for the period of years and upwards, immediately preceding the time of exhibiting this her bill of complaint. II. That heretofore and on or about the day of A. D , the plaintiff whose maiden name was , was lawfully married to the defendant herein, at the of and State of ; and that she continued to live and co-habit with said defendant as his wife from the time of the said marriage until on or about the day of A. D , when the plaintiff was com- pelled to leave the defendant, on account of his extreme and repeated cruelty, toward the plaintiff and her children, and on account of his refusal to provide a suitable maintenance for the plaintiff and their children as hereinafter set forth. III. That during the time said parties so lived and co-habited together as husband and wife, and up to this the time of ex- hibiting this bill of complaint, the plaintiff bore unto the de- fendant children of whom are now living and whose names and ages are as follows, 403 No. 8 FORMS IX DIVORCE PROCEDURE IV. That during all of the time the plaintiff and defendant lived and cohabited together as husband and wife, the plaintiff faithfully discharged all of her duties as such wife. But the defendant, disregarding the obligations of his marriage vow, and his duty to treat the plaintiff with kindness and affection, within a few months after their marriage commenced a course of unkind, cruel and brutal treatment towards her, w,hich continued until she was finally compelled to and did separate from him on the day of . / A. D , and that on divers occasions while she so lived and co-habited with him as his wife, the defendant was guilty of extreme and repeated cruelty towards her, in this: (Set forth the several acts of cruelty, and the language used by the defend- ant fully and particularly, giving time and place as near as may be). V. That the defendant is a man of violent and ungovernable temper, and on many occasions during the time when she lived and co-habited with him as his wife, he addressed her with vile, opprobrious, profane and ,obscene language and epithets, too vile, profane and obscene to be here repeated, accompanied with threats ofl personal violence, and that in consequence of such cruel and inhuman treatment it has become unsafe for her to live or remain with him, and by reason thereof she was compelled to and did leave him as hereinbefore stated, and was compelled to seek refuge with her friends and relations, and since which time she has not dared and still does not dare to return to the defendant's house or to live with him. VI. The plaintiff further represents unto this honorable Court that during all of the time that she lived and co-habited with the defendant as his wife, he the said defendant neglected and refused to provide for the plaintiff a suitable maintenance, and during the years before said separation the plaintiff was compelled to do menial work for other people in order to earn a support and provide clothing for herself and children ; that said defendant still refuses to provide anything for the support of the plaintiff and her children although he now is, and during all of the time they so lived together was abundantly able to do so. 404 BILL FOR DIVORCE FROM BED AND BOARD No. 8 VII. That the said defendant is not a proper person t<> have tin- care, custody and education of said minor children, (name them) for the reason that (State the reasons). VIII. That the defendant is a man of considerable property and is the owner and possessed of real and personal estate of the value of dollars as the plaintiff is informed and believes, and that his annual income is upwards of dollars as she is also informed and believes; and that said defendant is a strong healthy man, and abundantly able to provide a suitable maintenance for the plaintiff and said chil- dren, and that the plaintiff has no property or income, of her own, and is now entirely dependent upon the charity of her friends. IX. The plaintiff positively avers that the acts done by said de- fendant and herein charged as cause for divorce from bed and board, were all committed without the consent, connivance, privity or procurement of the plaintiff, and that this bill is not founded on or exhibited in consequence of collusion, agree- niynt, or understanding whatever between the parties hereto or between the plaintiff and any other person, and that she, the plaintiff has never been guilty of any such acts or miscon- duct as are herein charged against said defendant. X. In consideration whereof, and inasmuch as the plaintiff is without remedy except in a Court of equity, she prays: (a) That the defendant may be required to answer this bill of complaint, fully and particularly, but not on oath, his answer on oath being hereby expressly waived. (b) That a limited divorce from bed and board forever may be decreed between the plaintiff and the defendant, but ili.it the bonds of matrimony be not otherwise dissolved. (c) That the plaintiff may have the care, custody and cilu- cation of the said minor children, the issue of said marriage, until the further order of the Court. (d) That the defendant may be decreed to pay to the plain- till' such sum or sums of money at such times and in such 405 NO. 9/ FORMS IN DIVORCE PROCEDURE amounts as to this Honorable Court may seem proper, and sufficient to furnish a suitable support and maintenance for the plaintiff and said children, and that the same be decreed to be a lien on the real estate of the defendant, unless other- wise secured as this Court may direct. (e) That the plaintiff may have such further or other relief in the premises as- shall be agreeable to equity and good con- science. Plaintiff. Attorney for Plaintiff. Business Address . State of Michigan County of , the above named plaintiff, being duly sworn, deposes and says that she has heard read the foregoing bill of complaint, by her subscribed, and knows the contents thereof, and that the same is true of her ow r n knowledge, ex- cept as to the matters which are therein stated to be upon her information and belief, and as to those matters she believes it to be true. Affiant further on oath states that there is no collusion, understanding or agreement whatever between the parties hereto, or between the affiant and any other person in relation to her application for divorce. Plaintiff. Subscribed and sworn to before me this day of .A. D..-.. Notary Public. My Commission will expire No. 9. Bill for Divorce Charging Conviction of a Felony and Sentence to the State Prison for Three Years. STATE OF MICHIGAN. To The Circuit Court For The County of , In Chancery. Plaintiff in this suit, complains of 406 BILL CHARGING CONVICTION OF A FELONY No. 9 the defendant herein, and respectfully represents unto this Honorable Court as follows: I. That she now is, and for more than years last past has been a resident of. and domiciled in the County of and State of Michigan. II. That on or about the day of A. I) she was duly and legally married to the defendant herein named, at . and State of and that the name of the plaintiff, which she bore prior to said marriage was an. That she lived and co-habited with said defendant as his wife from the time of said marriage until the day of A. D during which time children were born to said parties, the issue of such marriage. IV. That on or about the day of A. D at the of in the County of and State of Michigan, at a term of the Circuit Court for said County of Before the Honorable Judge of said Court, the said defendant was duly convicted of the crime of Imrglary, the same being a felony and punishable by imprison meiit in the State Prison, and was then and there by the judg- ment of that Court, sentenced to confinement in the state pris- on or penitentiary of the State aforesaid for the term of three years, at hard labor, which said sentence and judgment still remains in full force and effect, not reversed, annulled or va- eated, and not appealed from, and the time for appealing there from has expired, as b,y the records and proceedings in said Court now remaining, reference being thereto had, will more fully appear. V. The plaintiff positively avers that acts done, and herein charged, for which divorce is sought, were all committed \\itli 407 No. 9 FORMS IN DIVORCE PROCEDURE out the consent, connivance, privity, or procurement of the plaintiff, and that this bill is not founded on, or exhibited in consequence of any collusion, agreement, or understanding whatever, between the parties hereto, or between the plaintiff and any other person. VI. In consideration whereof, the plaintiff prays : (a) That the defendant herein- before named may be required to answer this bill of complaint, without oath, his answer on oath being hereby expressly waived. (b) That the marriage' between the plaintiff and the de- fendant be dissolved, and a divorce from the bonds of matri- mony decreed, according to the statute in such case made and provided. (c) That the plaintiff may by the decree of this Honorable Court, be permitted to resume the name of which she bore prior to said marriage. (d) That the plaintiff may have such further or such other relief in the premises as to the Court may seem proper and as shall be agreeable to equity and good conscience. Plaintiff. Attorney for Plaintiff. Business Address, State of Michigan County of , the above named plaintiff, being duly sworn deposes and says that she has heard read the foregoing bill of complaint, by her subscribed and knows the contents thereof, and that the same is true of her own knowledge, ex- cept as to the matters which are therein stated to be upon her information and belief and as to these matters she believes it to be true. Affiant further states that there is no collusion, understanding or agreement whatever, between this affiant and the defendant to said bill, or between this affiant and any other person, in relation to her application for a divorce. Plaintiff. 408 BILL PROCURED IX ANOTHER STATE No. 10 Subscribed and sworn before me this day of A. D. 19.. Notary Public. My Commission will expire No. 10. Bill for Divorce Procured by Defendant in Another State. (See Text, 397) STATE OF MICHIGAN. To the Circuit Court for the County of In Chancery. , plaintiff in this suit, complains of the defendant herein, and respectful- ly shows unto this Honorable Court as follows: I.' That she now is. and for years last past lias been a resident of and domiciled in the said County of -. . . mid State of Michigan. II. That on or about the day of A, I>. she was duly and legally married to the defendant herein named, at the of in the State of , by , a minister of the gospel duly and legally authorized to solemnize marriages in said state and elsewhere; and that she lived and co-habited with said defend- ant as his wife from the time of said marriage until on or about the day of A. D , at which time Tin- s.i id defendant deserted the plaintiff and left the state of Michigan as is more particularly hereinafter shown. III. That during the time said parties so lived and co-habited to- gether as husband and wife, and up to the time of exhibiting this. ili<- | il;i in tiff's bill of complaint, she bore unto said defend- ant, as tho issue of said marriage children, of whom are now living, and whose names and ages are as fol- lows : 409 Xo. 1(1 FORMS IN DIVORCE PROCEDURE I IV. That the said defendant, disregarding the solemnity of his marriage vow, on or about the .......... day of ............ deserted and abandoned the plaintiff withpnt any reason or cause whatever, and went to the state of ........ , and on or about the ........... day of ........... A. I) ....... , with- out any valid reason or cause whatsoever procured a divorce from the bonds of matrimony from the plaintiff in this suit in the Circuit Court for the County of .................. , and State of ......... , which said judgment or decree of divorce from the bonds of matrimony was rendered by a Court having competent jurisdiction to grant such decree; that said decree of divorce is still in full force and effect, not annulled, re- versed or in any manner vacated and has become absolute un- der the laws of said state. That the said defendant is the owner of real and personal property in this state and elsewhere, which as the plaintiff is informed and believes is of the value of ............ dollars and upwards, and that said defendant by fraud and misrepre- sentation procured said decree of divorce, without any just cause or reason therefor, and for the express purpose of pre- venting the plaintiff from recovering or having any alimony or support from him, and for the purpose of depriving the plain- tiff of any interest in his said property. VI. That the plaintiff is poor and has no means of support for herself and children except what little she can earn at menial labor, and although the defendant is abundantly able so to do, he neglects and refuses and for a long period of time has neg- lected and refused to furnish the plaintiff with any means of support whatever for the maintenance of herself and children, and she has been compelled to rely on the charity of friends to aid in their care and support. VII. The plaintiff further represents that the defendant is the owner of real estate situated in the Township of ............ County of ................. , and state of Michigan, and par- 410 BILL 1'ROCL Ki;i) IX ANOTHER STATE No. 10 ticularly described as follows: (Describe the land by govern- ment subdivision or number of lot if in city or village, as fully ;is in a deed). Which said real estate the plaintiff is informed and believes is of the value of dollars and up- wards. VIII. The plaintiff positively avers that the acts done and causes of divorce herein charged, and for which divorce is sought were all committed without the consent, connivance, privity, or procurement of Ihe plaintiff, and that this bill of complaint is not founded on or exhibited in consequence of any collusion, understanding or agreement whatever between the parties hereto, or between the plaintiff and any other person. IX. In consideration whereof, and inasmuch as the plaintiff is without remedy in the premises, except in a Court of equity, she prays : la'i That the said defendant may be required to answer this bill of complaint, fully and particularly, but not on oath, his answer on oath being hereby expressly waived. iln That the said marriage between the plaintiff and the, defendant may be dissolved, and a divorce from the bonds of matrimony decreed, according to the laws of the state of Michi- gan in such case made and provided. (c) That the plaintiff may have the care, custody and edu- cation of said minor child until the further order of this Court. (d) That the said defendant may be required to pay to the plaintiff such snm of money as may be necessary for the sup- port of the plaintiff and said children, and that the same be decreed to be a lien on the above described land of the defend- ant until paid, or otherwise secured. (e^ That the plaintiff may have such further or other re- lief in the premises as shall be agreeable to equity and good conscience. Plaintiff. Attorney for 1 'lain tiff. Business Address . 411 No. 11 FORMS IN DIVORCE PROCEDURE State of Michigan County of / S , , the above named plaintiff, being duly sworn deposes and says that she has heard read the fore- going bill of complaint, by her subscribed and knows the con- tents thereof, and that the same is true of her own knowledge, except as to the matters which are therein stated to be upon her information and belief, and as to those matters she believes it to be true. Affiant further on her oath says that there is no collusion, understanding or agreement between the parties hereto, or between affiant and any other person in relation to her application for divorce. Plaintiff. Subscribed and sworn to before me this day of Notary Public. My 'Commission will expire No. 1 1 . Bill by Wife for Refusal to Support. (See Text, 398) STATE OF MICHIGAN. To the Circuit Court for County. In Chancery. , the plaintiff in this suit, com- plains of , the defendant herein, and respectfully represents unto this Honorable Court as follows : I. That on or about the day of A. D. , at the of in the State of , she was duly and legally married to , the defendant herein named, by , a minister of -the gospel, duly and legally authorized to solemnize marriages, and that she lived and co-habited with said defendant as his wife from the time of such marriage until on or about the day of A. D , at which time she was com- pelled to leave said defendant because of his neglect and re- 412 BILL BY WIFE FOR REFUSAL TO SUPPORT No. 11 lus;il to furnish her \\iili proper support and maintenance as is more particularly hereinafter set forth. II. That the said plaintiff now is, and for years and upwards has been a resident of and domiciled in the said coun- ty of and State of Michigan, and said defend- ant is a resident of and domiciled in the County of and State of III. That during the time she so lived and cohabited with the de- fendant as his wife, she bore to said defendant, as the issue of said marriage children, , of whom are now living and whose names and ages are as follows : IV. That .for a period of years and upwards next pre- ceding the time of said separation, the said defendant, disre- garding the solemnity of his marriage vow, neglected and re- fused to furnish the plaintiff with a proper means of support and maintenance for herself and said children, although of sufficient ability so to do. V. That for i lie period of years prior to the time of exhibiting this, the plaintiff's bill of complaint, the said de- fendant lias utterly refused to provide the plaintiff with the common necessities of life and still refuses so to do. VI. That the said defendant is strong and healthy, and possessed of good natural abilities, .and is well aide to earn good wages and large sums of money at his trade or occupation of , and that he is possessed of both real and personal property from which he realizes a good in- come, and amply sufficient to enable him to furnish the plain- tiff and said children with proper support and maintenance, but absolutely refuses so to do. That he spends the most of his time with his boon companions when not at work, coining 413 No. 11 FORMS IN DIVORCE PROCEDURE to his home only occasionally and then staying only a short time. VII. The plaintiff further represents that she is in poor health, and unable to do more than to care for her young children ; that during the last months she has been obliged to rely on the-charity of friends and neighbors for the common necessities of life; that she is utterly destitute of the common necessities of life, and the said defendant, well know- ing the necessities of the plaintiff, and being abundantly able to relieve such necessities, utterly refuses to provide for the plaintiff and her children. j VIII. That the defendant is the owner, and possessed of the follow- ing described real estate as the plaintiff is informed and believes of the value of dollars, and of personal property of the value of dollars, from which he receives a good income, and that the plaintiff has no property whatever and no income from which to employ coun- sel and pay the expense of prosecuting this suit, and to sup- port herself and children during the pendency thereof. IX. The plaintiff positively avers that the acts done, and .cause of divorce charged in this bill of complaint, for which divorce is sought, were all committed without the consent, connivance, privity or procurement of the plaintiff, and that this bill is not founded 011 or exhibited in consequence of any collusion, understanding, or agreement whatever, between the parties hereto or between the plaintiff and any other person. In consideration whereof, and inasmuch as the plaintiff is without remedy in the premises, except in a Court of equity, she prays : (a) That the defendant may be required to answer this bill of complaint, fully and particularly, but not on oath, his an- swer on oath being hereby expressly waived. (b) That the marriage between the plaintiff and the de- fendant may be dissolved, and a divorce from the bonds of BILL BY WIFE FOR REFUSAL TO SUPPORT No. 11 matrimony decreed. arrordinu t<> tin* -tatute in sncli -ase made and provided. (c) That the plaint ill may have the care, custody and edu- raiion of said minor children and , the surviving issue of said marriage until they shall respec- tively attain the ai;e of fourteen years and until the further order of this Honorable Court. (d) That the Court may derive to the plaint ill' such sums of money as will enable her to employ counsel, pay the ex- pense of prosecuting this suit, and support the plaintiff and said children during the pendency thereof. (e) That on the final hearing of this cause the said defend ant may be required, by the order and decree of this Honorable Court, to pay to the plaintiff such sums of money as permanent alimony as will enable the plaintiff to support herself and said children and that the same be made a lien on the real estate of said defendant, unless otherwise secured in such manner as may be approved by this Court. (f) That the plaintiff may have such other or further re- lief in the premises as may be agreeable to equity and good on science. Plaintiff. Attorney for Plaintiff. Business Address . Stale of Michigan Count v of. . , the above named plaintiff, being duly sworn, deposes and says that she has heard read the fore- going bill of complaint by her subscribed and knows the con- tents thereof, and that the same is true of her own knowledge, except as to the matters which are therein stated to be upon her information and belief, and as to those matters she believes it to be true. Affiant further, on her oath says that there is no collusion, understanding, or agreement whatever between the parties hereto, or between this affiant and any other person in relation to her application for divorce. Plaintiff. 415 No. 12 FORMS IN DIVORCE PROCEDURE Subscribed and sworn to before me this clay of . A. D. 19.. Notary Public. My Commission will expire No. 12. Bill to Annul Marriage. (See Text, 403) STATE OF MICHIGAN. To the Circuit Court for County. In Chancery. , plaintiff in this suit, complains of , the defendant herein, and re- spectfully represents unto this Honorable Court, as follows : I. That, the said plaintiff now is, and for more than years last past has been a resident of, and domiciled in the County of , and state of Michigan. II. That on or about the day of A. D. , at the of in the State of , she was married in form of law, but not in legal effect to the defendant herein named. III. That at the time of said pretended marriage, the said de- fendant represented to the plaintiff that he was an unmarried man, and the plaintiff relying upon said representations, hon- estly and in good faith believed them to be true and that said defendant was an unmarried man and legally competent to contract a lawful marriage with the plaintiff. IV. That the plaintiff and the defendant lived and co-habited to- gether from the time of said marriage until on or about the day of A. D , during all of 416 BILL, TO ANNUL MARRIAGE No. 12 which time i lie plaintiff honestly and in good faith believed that she was the lawful \vife of said usines. State of Michigan County of / * , the above named plaintiff, being duly sworn deposes and says that she has heard read the fore- going bill of complaint, by her subscribed, and knows the con- tents thereof, and that the same is true of her own knowledge, except as to those matters which are therein stated to be upon her information and belief, and as to those matters' she believes it to be true. Affiawt further, on oath, says that there is no collusion, understanding or agreement whatever between the parties hereto, or between the affiant and any other person in relation to this application for the affirmance of her mar- riage to the defendant. Plaintiff. Subscribed and sworn to before me this day of A. D. 19.. Notary Public. My Commission will expire No. 14. Chancery Summons. (See Text, 4i>: STATE OF MICHIGAN The Circuit Court for , County. In Chancery. 421 NO. 15 FORMS IN DIVORCE PROCEDURE In the name of the People of the State of Michigan. To Greeting : You are hereby notified that a bill of complaint has been filed against you in the Cir- cuit Court for the County of in Chancery, by . . . i . . as plaintiff, and that if you desire to defend the same, you are required to have your appearance filed in said cause, in ac- cordance with the rules and practice of the Court, and the statute in such case made and provided in person or by at- torney, within fifteen days after service of this summons upon you. Hereof fail not, under penalty of having said bill taken as confessed against you. The return day of this writ is the day of A. D. 19.... Witness the Honorable Circuit Judge, at the . of . . A. D. 19.. Clerk. Underwriting : A personal decree is sought against the defendant and the bill is filed to reach in- terests in property, and for divorce, alimony and custody of children as prayed for in said bill. Attorney for Plaintiff. Business Address > No. 15. Affidavit for Order of Publication Non-resident De- fendant. (See Text, 40^) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. Plaintiff. v. Defendant. County. ss. of the of being duly sworn deposes and says that he is the attorney for the 422 AFFIDAVIT FOR ORDER OF PUBLICATION No. 16 I'lnintiil in tin- above entitled cause, and that he knows the defendant, above named, and that said defend- ant is not a resident of the state of Michigan, but that he resides at . . in the state of . Attorney for Plaintiff. Subscribed and sworn to before me this day of . A. D. Notary Public. My Commission will expire No. 16. Affidavit for Order of Publication When Process Cannot be Served. Affidavit for Order of Publication, where process has been issued and defendant is -a resident of This State, but process cannot be served by reason of his absence from or conceal- ment within this State, or by reason of his continued absence from his place of residence; or that it cannot be ascertained in what state or country the defendant resides. (See Text, 408) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. Plaintiff. v. Defendant. County of ss. of the of and State of Michigan, being duly sworn, deposes and says that he is the attorney for the plaintiff in the above entitled cause; that the bill of complaint in said cause was filed in said Court on the day of A. D. 19. . . ., and on the same day a Chancery Summons for the appearance of said defend- ant was duly issued out of and under the seal of said Court returnable on the day of A. D. 19. . . ., and 423 No. 1C FORMS IN DIVORCE PROCEDURE delivered to the Sheriff of said County for service ou said de- fendant. Deponent further says that the said defendant is a resi- dent of this State, that he resides at the of in the State of Michigan, and that said chancery summons could not be served upon said defendant on or before the re- turn day thereof for the reason that during said time the said defendant was absent from the State of Michigan (or) for the reason that during said time from the date of issuing said chancery summons until after the return day thereof the said defendant was concealed and is still concealed within the State of Michigan or elsewhere, (or) for the reason that after diligent search and inquiry it cannot be ascertained in what state or country the defendant resides. Deponent further says that on the day of A. D the sheriff of said county returned said chan- cery summons with his certificate thereon endorsed that he was unable to find the said defendant in said State of Michi- gan. Subscribed and sworn to before me this day of ...... A. D. 19.. Notary Public. My Commission will expire N. B. (If the order is applied for on the ground of the defendant being concealed, the affidavit, after stating his residence as above, should also state the facts and circum- stances, and the source of information which induces a belief that the defendant is concealed, and such facts and pircum- stances must be such as will satisfy the Court that the de- fendant is concealed and keeping out of the way to avoid ser- vice of the summons. If the order is applied for on account of the continued absence of the defendant from his place of residence the affidavit should state the length of such ab- sence and the circumstances thereof and the exertions which have been made to find him. If applied for because it can- not be ascertained in what state or country the defendant re- sides the affidavit should state what efforts and inquiry have been made to ascertain the fact.) 424 OKDKK UK PUBLICATION No. 17 No. 17. Order of Publication- Non-resident Defendant. An 1C-. S.-c. 407. STATi: OF MICHIGAN. The Circuit ( 'onrt for County. lajChancery. Plaintiff, v. Defendant. Suit pending in the Circuit Conn I'm- Conuty. In Chancery, on the day of \. I >. 1! At,/: in said County. It satisfactorily appearing to this Court by affidavit on file that the defendant . .^f-y.nr~. ... is not a resident of the State of Michigan, but resides at ' in the State of on motion of ^ attorney for the plaintiff. IT is ORDERED, that the said defendant cause his appear- ance to be entered in this cause within three months from the date of this order, and in case of his appearance that he cause his answer to the plaintiff's bill of complaint to be filed. and a copy thereof to be served upon the plaintiff's attorney, within twenty days after sen-ice on him of a copy of said bill, and notice of this order, and that in default thereof that said bill be taken as confessed by said uon-residgut defendant. And it is further ordered that within Jffl&ffafad'dys after the date hereof, the said plaintiff cause a notice or this order to be published in the ^. a newspaper printed, pub- lished and circulating in said County of , and that such publication be continued once in each week for six j\ successive weeks-, or that he cause a copy of this order to be served personally on said non-resident defendant, at least twenty days before the time above prescribed for his appear >4 ance: And it is FURTHER ORDERED that the said plaintiff cause , \i a copy of this order to be mailed it^/^aid defendant at his last known post office addi' ^aftered mail, and a return receipt demanded at lea- 'ay* beloce_tbe_time herein prescribed for the appeanii;. e v said bill stated or set forth such a state of facts as entitles to the relief therein prayed. 3d This motion is based upon the affidavit of herewith filed, and upon the files and records in said Court and cause. (Or upon the petition of the defendant hereto annexed and herewith filed). 429 No. 22 FORMS IN DIVORCE PROCEDURE Dated . Attorney for Defendant. To Attorney for Plaintiff. Take notice that the foregoing is a true copy of a motion to dismiss the bill of complaint in the above entitled cause and of the affidavits upon which the same is based, and that the same will be brought on for hearing before said Court on the day of A. D. 19 , at the Court House in the of at o'clock in the forenoon. Dated . Attorney for Defendant. No. 22. Order Pro Confesso for not Appearing. (See Text, 414.) STATE OF MICHIGAN. The Circuit Court For County. In Chancery. Plaintiff, v. Defendant. / On filing due proof of the personal service of the summons heretofore issued in the above entitled cause, upon the defend- ant , on or before the return day thereof, and more than fifteen days having elapsed since the time of such service, and the said defendant not having ap- peared in said cause as shown by the records and files of this Court, and the affidavit of on file in said Court and cause ; On motion of , attorney for the plaintiff, IT IS ORDERED, that the bill of Complaint filed in this cause be, and the same hereby is taken as confessed by said defendant, and that the proofs in said cause be taken in open Court as in an action at law. Dated.. Attorney for Plaintiff. Clerk. 430 1'HO COM i .No. 1' 1 No. 23. Order Pro Confesso for not Answering. (See Text, 415.) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. Plaintiff. v. Defendant. On filing due proof of the personal service of tin- summon- heretofore issued in the above entitled rauve. upon the defend- ant , on or before the return day thereof, and of the appearance of the defendant, and that a copy of the bill of complaint was duly served on , attorney for said defendant within fifteen days after notice of the appearance of said defendant, and that more than fifteen days have elapsed since the service of said copy of said bill, and that the defendant has not caused his answer to be filed and served. On motion of Attorney for the plaintiff, it is ORDERED, that the bill of complaint in this cause be. and the same hereby is taken as confessed by said defendant. And on 'like motion it is further ORDERED that the proofs in said cause be taken in open Court as in an action at law. Dated . Attorney for Plaintiff. Clerk.' No. 24. Order Pro Confesso Defendant Brought in by Publi- cation. (See Text, 415.) STATE OF MICHIGAN. The Circuit Court For . . County. In Cham-ei-v. Plaintiff. v. Defendant. 431 No. 25 FORMS IN DIVORCE PROCEDURE Suit Pending in the Circuit Court For County, In Chancery on the day of A. D. 19 On filing due proof of Publication of notice of the order heretofore made in said cause, requiring the defendant ....... to enter his appearance therein and answer the bill of com- plaint filed in this cause within three months from the date of said order, and the time limited in said order for the entering of such appearance having expired, and on filing due proof that said defendant has not appeared in said cause ; On motion .of Attorney far the plaintiff, it is ORDERED that the said bill of complaint be, and the same hereby is taken as confessed by said defendant. And on like motion, it is further ORDERED that the proofs in said cause be taken in open Court as in an action at law. Attorney for Plaintiff. Clerk. No. 25. Affidavit of Non- Appearance. '(See Text, 414.) STATE OF MICHIGAN, The Circuit Court For County. In Chancery. Plaintiff, v. Defendant. County, ss. of being duly sworn says that he is the attorney for the plaintiff in the above entitled cause, and that the bill of complaint was filed in said cause on the day of A. D. 19 ; that on the same day a chancery summons was duly issued out of and under the seal of said Court and was personally served upon said de- fendant on the day of A. D. 19 . . . . , as appears by proof of service thereof on file in said Court and cause, and- that although more than fifteen days have elapsed since such service this deponent has not re- ceived any notice that an appearance for said defendant has been filed in said cause by or on behalf of the said defendant 432 AFFIDAVIT OF DEFAULT FOH WANT OF ANSWER No. 26 and that the said defendant has not caused his ;ip- pea ra lire to be entered in said Court and ranse as appears by the files and records in said Court and cause. Subscribed and Sworn to Before me This I >a\ of A. D. 19.. Notary Public. .My ( 'oniniission will expire No. 26. Affidavit of Default for Want of Answer. (See Text, 415.) STATE" OF MICHIGAN. The'Circuit Court For County. In Chancery. I'laiiTtiff. v. Defendant. County of , ss of being duly sworn deposes and says that he is the attorney for the plaintiff in the above entitled cause, and that on the .... day of A. D the defendant entered his ap- pearance therein by .' his attorney, and de- manded a copy of the bill of complaint ; that afterwards on the day of A. D. 19. ... this deponent served a copy of said bill of complaint personally on said 'attorney for said defendant, and that although more than fifteen days have elapsed since such service, this de- ponent has not received any copy of, or notice of filing of any motion to dismiss, or answer 1o said bill by or on behalf of the defendant ; and that the said defendant has not filed any motion to dismiss or answer to said bill as appears by the files and records of said Court and eanse. Subscribed and Sworn to Before me this day of A. D. 19.. Notary Public. My Commission will expire 433 FORMS IN DIVORCE PROCEDURE No. 27. Supplemental Bill. (See Text, 424.) STATE OF MICHIGAN. The Circuit Court For the County of In Chancery. To the Court : Plaintiff in this suit respectfully represents unto this Honorable Court as follows: I. That on the day of A. D. 19 he exhibited his bill of complaint in this Court against the defendant thereby praying that the bonds of matrimony between said plaintiff and said defendant be dissolved and a divorce from the bonds of matrimony decreed, for the reasons as set forth in said bill that the said defendant had deserted and abandoned the plaintiff against his will and consent and that such desertion and abandonment had continued for more than two years next preceding the time of exhibiting said bill of complaint. II. That on the day of A. D. 19 the said defendant appeared in said cause by her attorney and filed her answer to said. bill denying said de- sertion charged in said bill, as by the files and records in said Court and cause will more fully appear: which said cause is still pending and undetermined in this Court. III. The plaintiff further shows, by way of supplement that since the filing of said bill of complaint and the defendant's answer thereto, the said defendant, further disregarding her marriage vow and obligation, did commit adultery and have illicit carnal intercourse with one . , on the day of A. D at the of in the State of \ IV. Inasmuch therefore as the plaintiff is without remedy in the premises, except in a Court of Equity, he prays : (a) That the defendant may be required to an- 434 PETITION I'Oll LEAVE TO FILE SUPPLEMENTAL BILL No. 28 swer this bill of complaint fully and particularly, but not on oath, her answer on oath being hereby expressly waived. (bj That this, the plaint ill's bill of complaint may be deemed and taken as and for a bill of supplement to his said original bill. (c) That the plaintiff may have such other or further i lief in the premises as shall be agreeable to equity and good conscience. Plaintiff. Attorney for Plaintiff. Business Address . . State of Michigan .County of , the above named plaintiff being duly sworn deposes and says that he has heard read the foregoing supple- mental bill by him subscribed and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters which are therein stated to be upon his informa- tion and belief and as to those matters he believes it to be true. Affiant further on oath says that there is no collusion understanding or agreement between the parties hereto,, or be- iween this affiant and any other person, in relation to his application for a divorce, or in relation to the matters charged in this his supplental bill. Plaintiff. Subscribed and sworn to before me this day of A. D. 19.. Notary Public. My Commission will expire No. 28. Petition for Leave to File Supplemental Bill. (See Text, 427.) STATE OF MICHIGAN. The Circuit Court For County, In Chancery. Plaintiff, v. Defendant. 435 No. 28 FORMS IX DIVORCE PROCEDURE ( To the Court : The petition of , the above named plaintiff respectfully represents unto this Honorable Court as follows: I. That on the day of A. D he filed his bill of Complaint in this Court against the above named defendant praying that the marriage be- tween the plaintiff and the defendant be dissolved and a di- vorce from the bonds of matrimony decreed, for the reason that the defendant had deserted and abandoned the plaintiff against his will and consent, and that such desertion and abandon- ment had continued for more than two years next preceding the time of exhibiting said bill of complaint. II. The plaintiff further represents that after the filing of said bill of complaint, and on the the day of A. D. 19 .... the said defendant duly appeared in said cause by her attorney and answered said bill, denying said charge of desertion, and that said cause is still pending and undetermined in this Court. III. That after the filing of said bill and the answer thereto, the said defendant disregarding the solemnity of her marriage vow and obligation did commit adultery and have illicit carnal intercourse with one at the of in the state of *-. IV. That by reason of the said offense of adultery having been committed after the filing of said bill and answer, the same cannot be relied on by said plaintiff as a ground of divorce in said cause unless the said plaintiff is permitted to file a sup- plemental bill setting forth the commission of said offense by said defendant, and your petitioner is advised that it is neces- sary to file a supplemental bill of complaint in this cause. .Your petitioner therefore prays that an order may be made and entered by this honorable Court permitting the plaintiff 436 \oTiri: <>l APPLICATION No. 29 to tilr a supplemental hill against said defendant charging said act of adultery as hereinlefore set forth as an additional cause of divorce, and that your petitioner may have such other or further relief in the premises as shall be agreeable to equity and good conscience. Attorney for Plaint ill. State of Michigan County of , the above named petitioner being duly sworn deposes and says that he has heard read the foregoing peti- tion by him subscribed and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters which are therein stated to be upon his information and belief and as to those matters he believes it^ to be true. Subscribed and sworn to before me this day of ~. A. D. 19.. Notary iMildic. My Commission will expire No. 29. Notice of Application. To , Attorney for Defendant. Take Notice, that the foregoing is a true copy of a petition filed in the above entitled cause, and that the same will be brought on for heiring before said Court on the day of A. D. 19 at the Court house in the of in said County, at o'clock in the noon, and a motion ihereuj made that the prayer of said petition be granted. Attorney for Plaintiff. Dated . ,.19.. 437 No. 29a FORMS IN DIVORCE PROCEDURE No. 29a. Order Granting Leave to File Supplemental Bill. (See Text, 427.) STATE OF MICHIGAN. The Circuit Court for County. In Chancer}^. Plaintiff, v. Defendant. At a session of said Court held at the Court House iu the of . . . : in said Countv, on the ........ day of A. D. 19 ; Present Hon Circuit" Judge. On reading and filing the petition- of , the plaintiff in the above entitled cause, praying for reasons there- in stated, that an order may be made in said cause allowing said plaintiff to file a supplemental bill in said cause, on mo- tion of , attorney for said plaintiff it is ORDERED that the prayer of said petition be granted, and that said plaintiff may file such supplemental bill within days after the date of this order, and not afterwards. It is further ordered that said plaintiff cause a copy of this order and of said supplemental bill to be served upon , the attorney for said defendant within days after the date of this order; and that said defendant cause her answer to said bill to be filed and served within fifteen days after service of a copy of this order and of said supplement bill upon her said attorney. Attorney for Plaintiff. Circuit Judge. No. 30. Answer General Form. (See Text, 418.) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. Plaintiff, v. Defendant. 438 MKAL FORM OF ANSWER No. 30 The answer of , the above named defendant, to tin; bill of complaint of the above named plaintiff. This defendant saving and reserving all benefit of objection and exception to said bill of complaint, for answer thereto, or to so much thereof as is advised it is necessary for ' to answer, says : FIRST, To the first paragraph : ... .he admits the marriage between said parties at the time and place as set forth in said bill. SECOND, To the second paragraph : admits that during the time said parties lived and cohabited together as husband and wife, there were born as the issue of said mar- riage children whose names and ages and places of residence are as set forth in said bill. THIRD, To the third paragraph: He neither admits or denies the allegations therein contained, for the reason that he has no knowledge or information on those subjects, except as he is informed by said bill, and he therefore leaves said plaintiff to make such proof thereof as may be ad vised is necessary for to make. FOURTH, To the fourth paragraph: he denies that on or about the day of at the City of -. or at any other time or place lie com milled adiillei-v and had illicit carnal intercourse with one (Answer specifically each and every paragraph of tho bill by either admitting or denying the same or by disclaiming knowl- edge or information sufficient to form a belief, and conclude as follows, i And the said defendant further says that the matters and things alleged and set forth in said bill of complaint are not sufficient in law to entitle the said plaintiff to the relief therein prayed, and . . . .he prays that the same may be dismissed with costs in favor of said defendant. Defendant. Attorney for Defendant. (If the bill requires an answer on oath add jurat as follows. ) State of Michigan * 1 County of f ' , the above named defendant, being 439 No. 31 FORMS IX DIVORCE PROCEDURE duly sworn deposes and says that he has read the fore- going answer by him subscribed and knows the contents thereof, and that the same is true of own knowledge, except as to the matters which are therein stated to be upon information and belief, and as to those matters he be- lieves it to be true. Subscribed and sworn to before me this day of , A. D. 19 Notary Public. My Commission expires No. 31. Answer and Cross-Bill. (See Text, 420.) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. Plaintiff, v. Defendant. The answer of , the above named defend- ant to the bill of complaint of , the above named plaintiff. This defendant saving and reserving all benefit of objection and exception to the said bill, for answer thereto, or to such parts thereof as he is advised it is material or necessary for him to answer, says: FIRST, To the first paragraph: admits the mar riage of said parties at the time and place as set forth in said bill. SECOND, To the second paragraph : admits that said parties lived and cohabited together as husband and wife from the time of said marriage until on or about the day of A. D. 19. ... but he denies that the said plaintiff left because of cruel and inhuman treat- ment, as set forth in said bill ; alleges that the said plaintiff abandoned and deserted this defendant without any reason or cause whatsoever, and entirely against the wish of this defendant, and said abandonment and desertion has con- 440 A\S\VI:I: AMI ruoss-BiLL No. 31 finned for a period of . ...T years and still continues. although ihis defendant has often requested said plaintiff to return ane dismissed. OND 1'IVISIOX. CROSS -P.M. I.. I. This defendant, for the purpose of obtaining affirmative re lief, in accordance with the rule and practice of this court, lespect fully represents unto this honorable court as follows: 441 No. 31 FORMS IN DIVORCE PROCEDURE II. That on or- about the day of A. D. 18 he was duly and legally married to said plaintiff, by , a minister of the gospel, duly and legally authorized to solemnize marriages, at the of in the State of , and that said parties lived and cohabited together as husband and wife from the time of said marriage until on or about the day of A. D at which time the said plaintiff deserted this defendant, as is more particularly hereinafter set forth. III. That said defendant now is and for years and upwards has been a resident of . . in the State of Michigan, and now resides at in the State of Michigan. IV. That during the time said parties so lived and co-habited to- gether as husband and wife there were born to them as the issue of said marriage children whose names and ages are as follows of whom are now living. (Give name and age of each child living at the time). V. That on or about the day of A. D. the said plaintiff without any reason or cause what- soever, and against the will of this defendant, wholly deserted and abandoned this defendant, and said desertion and aband- onment has continued for years and upwards, and still continues, although this defendant has frequently re- quested said plaintiff to return to said defendant, which re- quest she has hitherto refused and still refuses. VI. And this defendant positively avers that the acts done and causes for divorce herein charged, for which divorce is sought were all committed without the consent, connivance privity or procurement of this defendant, and that this cross bill is not 442 ANSWER AND CROSS-BILL No. 31 founded on or exhibited in consequence of any collusion. agreement or understand in-; whatever between the parties hereto, or between tliis defendant and any other person. Mi In consideration whereof, and to the end. therefore. that the said plaintiff, if can show why this de- fendant should not have the relief herein prayed, may, with- out oath, (Answer on oath being hereby expressly waived), and according to the best of knowledge, remembrance. information and belief, full, true, direct and perfect answer make to all and singular the matters and things herein stated and charged. (2) and that the marriage between this defendant and the said plaintiff may he dissolved, and a divorce from the bonds of matrimony decreed, according to the statute in such case made and provided. (3) And that this defendant may have such other relief, and such further relief in the premises, as to this Honorable Court may seem proper and as shall be agreeable to equity and good conscience. State of Michigan County of J * On this clay of A. D. 19. ... before me a Notary ( Public, in and for said County and state personally came the above named defendant who being duly sworn by me says, that he has heard read the foregoing answer and cross hill by him subscribed, and knows the contents thereof, and that the same is true of his own knowledge, ex- cept as to the matters which are therein stated to be upon information and belief, and as to those matters .... believes it to be true; and further that there is no collusion, understanding or agreement whatever, between the parties herein named in re-aid to this application for a divorce. Defendant. Subscribed and sworn to before me this day of . A. D. 19.. Notary Public. My < 'niiiinission expires 443 No. 32 FORMS IN DIVORCE PROCEDURE No. 32. Petition for Reference to a Commissioner to Take Proofs. (See Text, 432.) STATE OF MICHIGAN. The Circuit Court for the County of . . . t , In Chancery. Plaintiff, v. Defendant. To the Court: The petition of , the above named plaintiff, respectfully represents unto this honorable court as follows: I. That on, to- wit ; the day of A. D. 19 a decree was entered in the above entitled court .and cause, dissolving the marriage between the -said parties, for reasons and causes set forth in said decree, as in and by said decree, now on file in said court, and to which reference is hereby made, will more fully appear. II. That in and by said decree, the question of the amount of alimony to be allowed to your petitioner was reserved by said court for further directions, after proof of the extent and value of the property of the said defendant, and of the necessities of your petitioner, should be taken. III. That it will be very inconvenient and expensive to procure the attendance of all of the witnesses at the same time in open court, to givje their testimony, and it will be much more con- venient and less expense to take their testimony before a circuit court commissioner from time to time, and within a reasonable time, to suit the convenience of said witnesses and commissioner, and have the same duly reported to this court. IV. Your petitioner therefore prays that an order may be en- 4 ri:imo.\ FOK m:ri:iti:.\<'K TO COMMISSION!-:!: No. ''- teivd in said court and cause referring Hit- same to one of the circuit court commissioners in and for sa^j couniy. directing him to take the testimony of all of the witnesses pro Attorney for said plaintiff in opposition thereto, and it appear- ing to the court that said bill of complaint is not sufficient in law to entitle the said plaintiff to the relief there.in and there- by prayed; On motion of , Attorney for said defend- ant, it is ORDERED, that said bill of complaint be, and the same is hereby dismissed. And on like motion it is~ further ordered that the said de- fendant recover costs to be taxed, including an at- torney fee of dollars, and that M .-. have execution therefor. Circuit Judge. No. 36. Report of Circuit Court Commissioner as to Alimony. (See Text, 433.) STATE OF MICHIGAN. The Circuit Court for . . Countv. In Chaucerv. Plaintiff, v. Defendant. To the Circuit Court for the Comity of , In Chancery. In pursuance of an order of this court, made *in this cause on the day of A. D. 19 whereby it was referred to me, the undersigned, a circuit court com- missioner in and for said county, to take the proofs and testi- mony of the witnesses for said parties, or either of them, as to the extent and value of the estate and property owned by said defendant at the time of the commencement of this suit and at the present time, and also as to the circumstances and 448 IM-M'ORT AS TO ALIMONY No. .36 necessities nf tlir plaintiff, to :iil tin- I'urtlicr directions of s.-iid court as to the amount of alimony to be awarded to the plaintiff, I, the saiH circuit court commissioner do hereby respectfully report: That having given due notice to the respective parties of the time and (dace of the hearing thereof, and having been attended by the Attorneys for each of the parties, and having caused to come before me all of such witnesses as the respective parlies desired or made known to me, I did on the day of A. D. 10. ... at my oftice in the city of in said county, proceed to take the proofs of the respective parties, and the several witnesses attending having been severally duly sworn and examined before me touching the matters aforesaid, I caused their testimony to be reduced to writ in-, and caused the same to be subscribed by each of said witnesses, and have attached the same hereto as and for a part of this my report. I further report that T find from the evidence that the de- fendant has and is the owner of real estate of the value of dollars or thereabout, the yearly income from which is dollars or thereabout, and that the personal estate consists of (state what) and the value thereof is about dollars, and the yearly income therefrom is dollars. That children of the issue of the marriage between the parties, namely: (give name, age and sex of each child) live with and are entirely supported by the plaintiff. That the plaintiff has no means of support, other than her personal labor: that she is in poor health and unable to work a considerable portion of the time. T further report that the sum of dollars per year paid quarterly in advance would be a suitable allowance for support and alimony, of the said plaintiff with said minor children, and that it ought to be payable from the day of A. D. 10 and that such alimony and allowance be made subject to.be increased or decreased in the future as circumstances may be shown to require. And that my fees amount to dollars, all of which is respectfully submitted. Dated . Circuit Court Commissioner. 449 No. 37 FORMS IN DIVORCE PROCEDURE No. 37. Order Confirming Report of Commissioner. (See Text, 433.) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. Plaintiff, v. (caption) Defendant. On reading the report of Esq., a circuit court commissioner of said county of wherein he re- ports that in his opinion the sum of dollars per year, payable quarterly in advance would be a suitable allow- ance for support and alimony of said plaintiff with her said 1 minor children and that the same ought to be made payable from the day of A. D. 19 , and the court having duly considered said report and having heard counsel for the respective parties in relation thereto, and being fully advised thereon: It is ORDERED, ADJUDGED AND DECREED, by the court now here that said report be, and the same hereby is, in all things approved and confirmed. And it is further ORDERED, ADJUDGED AND DE- CREED, that the said defendant do pay to the said plaintiff the sum of dollars per year, payable quarterly in ad- vance, beginning on the day of A. D. 19. .. for her support and for the support of her said minor children, until the further order of this court, and that said amount so to be paid by said defendant to said plaintiff be a lien upon the real estate of said defendant as to all amounts from time to time due and unpaid. And it is further ORDERED, ADJUDGED AND DE- CREED, that the said plaintiff do recover against the said defendant her costs to be taxed, including an attorney fee of . dollars and that she have execution therefor. Circuit Judge. 450 PETITION FOR TEMPORARY ALIMONY No. 38 No. 38. Petition for Temporary Alimony and Expenses by Plaintiff. (See Text, 437.) STATE OF MICHIGA N The Circuit Court for County. In Chancery. Plaintiff, v. Defendant. To the Circuit Court for County, In Chancery. The petition of , the above named plaintiff, respectfully shows unto this honorable court as follows; I. That she is the wife of the above named defendant and that she has recently, and on the day of 19 , filed her bill of complaint in this cause against the said defendant to obtain a decree of divorce dissolving the mar- riage between herself and the said defendant, because of (state ground on which divorce is asked), as in and by your peti- tioner's said bill now on file in this court, more particularly set forth, and to which reference is made, will more fully and at large appear. II. That she is wholly destitute of the means of supporting her- self, and young children, the offspring of said mar- riage during the pendency of this suit, and is destitute of the means of prosecuting the same and defraying the costs and expenses attending the same, and that she has no means with which to employ and pay an attorney for his services in con- nection with the prosecution thereof. III. That the said defendant is the owner of a considerable amount of property (describe it), from which he derives an in- come of dollars per annum, as your petitioner is in- 451 No. 38 FORMS IN DIVORCE PROCEDURE formed arid believes and therefore charges the fact to be on information and belief, that the said defendant is abundantly able to furnish your petitioner with sufficient means for the support of herself and said children during the pendency of this suit, and to enable her to employ counsel to prosecute the same, and to pay the necessary costs and expenses thereof. Your petitioner therefore prays that the said defendant may be required by the order of this court to pay to her a reason- able sum per week for the support of herself and children dur- ing the pendency of this suit, and also such reasonable sum or sums of money as may be necessary to enable her to prosecute her suit in this court and cause, and to pay attorney's fees, officers' fees, witnesses' fees and other expenses thereof, and that she may have such further or other relief, as to this court shall seem proper, and agreeable to equity and good conscience. Plaintiff. Attorney for plaintiff. State of Michigan County of On this day of A. D. 19 be- fore me, a Notary Public, in and for said county, personally came , the above named petitioner, who being by me duly sworn says that she has read the fore- going petition by her subscribed and knows the contents thereof, and that the same is true of her own knowledge ex- cept as to the matters which are therein stated to be upon her information and belief and as to those matters she believes it to be true. Plaintiff. Subscribed and sworn to before me this day of . A .D. 19.. Notary Public. My Commission Expires 452 I'KTlTloN mi: AI.IM".\V AND EXPENSES No. 39 To , Attorney for Defendant : TAKE NOTICE, that the foregoing is a true copy of a peii i ion this day tiled in the above entitled court and cause, and that tin- same will be brought on for hearing before said court on the day of A. D. 19. ... at tin- court house in the city of '. . in said county, at nine o'clock in the forerioon of that date, or as soon thereafter as counsel can be heard, and a motion thereupon made that the [layer of said petition be granted. Pated . .19.. Attorney for Plaintiff. No. 39. Petition for Alimony and Expenses, by Defendant. (See Text. 437.) STATE OF MICHIGAN. The Circuit Court for County. Tn Chancery. Plaintiff, v. Defendant. The Circuit Court for Counts'. In Cham cry. I. The petition of , the above named defendant. respectfully shows unto the court that she is the wife of the above named plaintiff, and that said plain tiff has lately filed his hill of complaint in this court against ^our petitioner to obtain a decree of divorce dissolving the marriage between him and your petitioner, charging your peti- tioner with having been guilty of (state ground of divorce as charged in the bill), that your petitioner has filed her answer to the said bill of complaint denying such charges, as by reference to said bill and answer now on file in said cause, to which reference is made will more fully appear. / 453 No. 39 FORMS IN DIVORCE PROCEDURE II. Your petitioner further shows that she is wholly destitute of the means of supporting herself during the pendency of this suit and is destitute of the means of maintaining her defense and of defraying the cost of expenses attending the same. III. And that the said plaintiff is the owner of a considerable amount of property and is the owner of (set forth the property so far as known and its value], and that he is also in receipt of a considerable income and that the annual (or monthly) income of the said plaintiff is at least $ your peti- tioner therefore prays that the said plaintiff may be required by an order of this court to pay to her a reasonable sum per month for her support and maintenance during the pendency of this suit and also such sum and sums of money as may be necessary to enable her to carry on her defense, to pay attor- ney fees, and to defray the other necessary costs and expenses thereof, and that she may have such further or other relief as to this court shall seem meet. Attorney for Petitioner. State of Michigan County of On this day of , A. D. 19 .... be- fore me, the subscriber, a Notary Public, in and for said county and state personally came , the above named petitioner, who being by me duly sworn says that she has heard read the foregoing petition by her subscribed and knows the contents thereof and that the same is true of her own knowledge except as to such matters as are therein stated to be upon her information and belief and as to those matters she believes it to be true. Subscribed and sworn to before me this dav of . A. D. 19..... Notary Public. My Commission expires \ 454 ORDER FOR ALIMONY AND EXPENSES N ". 41 No. 40. Order Allowing Temporary Alimony and Expenses to Plaintiff. (See Text, 438.) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. Plaintiff, v. Defendant. At a session of said court held at the court house in the city of in said county on the day of , A. D. 19.... Present Honorable , Circuit Judge. In this cause the petition of the above named plaintiff for alimony during the pendency of this cause and a reasonable sum to enable her to defray the expenses of prosecuting her said suit came on to be heard, and the court having heard and considered the said petition and the testimony presented by the parties respectively and the arguments of counsel for each party: it is ordered by the court now here that the de- fendant pay to the plaintiff or to her attorney the sum of $ within days from the date hereof and that he pay to the plaintiff the further silm of $ per month on or before the day of each and every month commencing on the day of , A. D. 19. . . ., for her support during the pendency of this suit. Circuit Judge. Clerk.' No. 41. Order for Alimony and Expenses, to Defendant. (See Text, 438.) STATE OF MICHIGAN The Circuit Court for County. In Chancery. Plaintiff, v. (Caption) Defendant. 455 No. 42 FORMS IN DIVORCE PROCEDURE This cause came on to be heard upon the petition of the de- fendant for alimony during the pendency of this suit and for an allowance to enable her to defend the same. And the court having heard the petition of the said defendant duly verified and the affidavits and other testimony in support thereof and the counter-affidavits on the part of the said plaintiff, and the arguments of counsel, and upon due consideration thereof: it is ordered and adjudged that the said plaintiff do within days from the date of this order pay to the attorney for the defendant $ -as an attorney's fee, and that he also pay to the said defendant or her attorney tlfe further sum of $ per month for each and everj- month in advance during the pendency of this suit commencing on the day of , A. D. 19 and that he pay to the defendant or her attorney the fees of the witnesses for the said defendant and all fees of officers and court ex- penses as they accrue on demand. Circuit Judge. Countersigned Clerk. No. 42. Order Denying Temporary Alimony. (See Text, 438.) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. ....*.... Plaintiff. v. (Caption) Defendant. This cause came on to be heard upon the petition of the for alimony during the pendency of this suit and for an allowance to enable her to the same. And the court having heard the petition of the said duly verified and the affidavits and other testimony in support thereof, and the counter-affidavits on the part of the said and the arguments of counsel, and upon due consideration* thereof : it is ordered and adjudged and the 456 AFFIDAVIT TO OBTAIN AX ATTACHMENT No. 44 court now here does hereby order and adjudge, that the pmycr . 19. . Attorney for. No. 44. Affidavit to Obtain an Attachment for Non-Payment of Temporary Alimony. x (See Text, 443.) STATE OF MICHIGAN. The Ciivuit Court for County. In Chancery. Plaintiff, v. Defendant. 457 No. 44 FORMS IN DIVORCE PROCEDURE County of , ss. , the attorney for the plaintiff in the above entitled cause being duly sworn says that heretofore and on the day of , A. D. 19 , an or-. der was made in this cause requiring the above named defend- ant, , to pay to the attorney for the said plaintiff the sum of $ , as an attorney fee and $ to defray officers fees and court expenses within . . . days from the date of this order, and that he, the said defendant, should also pay to the said plaintiff or her at- torney the further sum of $ per month for each and every month in advance during the pendency of this suit, com- mencing on the day of . . . , A. D. 19 . . . . , and that he, the said defendant, should also pay to the plain- tiff or to her attorney the fees for the witnesses for the said plaintiff and all fees of officers and court expenses as they should accrue and on demand, as in and by the said order now remaining of record in this court, and to which reference is prayed, fully appears. And that afterwards and on the day of , A. D. 19. . . ., a certified copy of the said order was personally served upon the said defendant, , as fully appears by the affidavits of . . , hereto annexed and that more than days have elapsed since the date of the said order and since the service of the said certified copy thereof on the said defendant, and that the said sum of $ so ordered to be paid as an at- torney fee as well as the sum of $ for officers' fees and court expenses is now past due, and that the said sum of ft per month so ordered to be paid on the day of each month during the pendency >of this suit is now due and payable for each of the months of and , and that this deponent has as attorney for the plaintiff, since said several sums became due, on the day of , A. D. 19 . . . . , called upon the said defendant and demanded of him that he should pay the same, and on the day of A. I). 19. ... he served (or caused to be served) upon the said defendant a demand in writing for the same a copy of which demand in writing is hereto annexed. And this deponent further says that the said defendant has not paid^the said several sums or any part thereof and has 458 ORDER TO SHOW CAUSE N " 45 hitherto refused and still does refuse to pay the same or any part thereof. Subscribed and sworn to before me this day of A. D. 19.. Notary Public. My Commission expires (Annex affidavit of service of certified copy of order, also affidavit of service of demand if written demand was made). No. 45. Order to Show Cause Why Attachment Should not Issue. (See Text, 443.) STATE OF MICHIGAN. The Circuit Court for County. In Chancery. Plaintiff, v. Defendant. At a session of said court held at the court house in the city of in said county on the day of A. D. 19 Present Honorable , Circuit Judge. On reading and filing due proof of service of a certified copy of the order made in this cause on the day of A. D. 19. . on the above named defendant, personally , and on reading and filing due proof of a personal demand of payment of the several sums of money due and unpaid upon the said order at the time of the service thereof upon the said defendant, and that more than days have elapsed since such service and de- mand and that the said defendant has neglected to pay the same or cause the same, to be paid or any part thereof : on mo- tion of , attorney for the said plain- tiff it is ordered that the said defendant, appear before this court on the day of , A. D. 10 at the opening of the court on that day at nine o'clock in the forenoon or as soon thereafter as the same can be heard, and show cause why an attachment should not issue 459 No. 46 FORMS IN DIVORCE PROCEDURE against him and he be punished and committed to the common jail of said county of , for his alleged con- tempt of this court in his alleged neglect in not paying the said several sums of money mentioned in the said order of this court made on the day of , A. D. 19. . . ., and his failure to comply with the terms and require- ments of said order. And it is further ordered that a certi- fied copy of this order together with copies of the affidavits on file whereon this order is founded be served upon the said defendant, , on or before the day of , A. D. 19 Circuit Judge. Examined, countersigned and entered by me, Clerk. No. 46. Order for Attachment and Commitment. (See Text, 443.) STATE OF MICHIGAN. The Circuit Court for . . Countv. In Chancerv. Plaintiff. v. Defendant. At a session of said court held at the courthouse in the city 'of in said county on the day of , A. D. 19....' Present Honorable , Circuit Judge. In this cause on reading and filing due proof of the personal service upon the above named defendant, , of a certified copy of the order of this .court heretofore and on the day of , A. D. 19 made in this cause, requiring him, the said defendant, , to appear before this court on the day of , A. D. 19 . . . . , and show cause why an attachment should not .issue against him as for a contempt, for his neglect and refusal to comply with and obey the order of this court theretofore, and on the day of , 460 [ ni; ATTACHMENT AM' COM.MIT.MKXT No. !'. A. l>. 1! made iii this cause requiring him 1o pay tin- ;it torne\ for the plaintiff (lie sum fit' * lor attorney fees. officers fees and court expenses \vilhin days from the date of sai FOR ALIMONY No. 50 court, en reading the bill of complaint ;inf the de feudal .IIH! hearing the proofs, taken as aforesaid from which it v;,i istactoHly appears to this court that the material facts charged in said hill of complaint are true and that the defend ant, , has been guilty of the several acts of rf^C^TV^x'WWx* "f therein charged : On motion of . 3. ')T. . '.*. . . TfT A*T? attorney for s;iid plaintitl'. and after hearing attor nev for said defendant, in opposition theretojit is ordered, ad- judged and decreed and this court by virtue of the authority therein vested and in pursuance of the statute in such case made and provided doth order, adjudge and decree that the marriage between the said plaintiff, /*.>* iv. .<>*.*. r. . . ., and the said defendant, . C*+4 .>.. .'/...*. *-.".'. ., be dis- >olved and the same is hereby dissolved accordingly. And the said parties are, and each of them, is free from the obli- gation, thereof. And on like motion it is further ordered that the said plain- tiff have the custody, care and control of , the minor children of said marri- age, until they arrive at the age of years respec- tively or until the further order of this court. It is further ordered, adjudged and decreed that the ques- tion as to the alimony, and the amount thereof, to be allowed to said , be and the same is hereby reserved for further directions after the taking of testimony/ for the determination, thereof. Circuit Judge. Examined, countersigned and entered by me, Clerk. C- 1 /*j- '<" *? /' No. 50. Decree of Divorce and for Alimony, (See Text, 446.) STATE OF MICHIGAN. The Circuit Court for the Conntv of In Chancerv. Plain HIV. v. Defendant. 465 No. 40 FORMS IN DIVORCE PROCEDURE At a session of said court held at the courthouse in the city of in said county on the day of ., A. D. 19 Present Honorable , Circuit Judge. This cause came on to be heard upqn the bill of complaint therein, the answer of the defendant thereto and upon proofs taken in open court and said proofs having been duly consid- ered from which it satisfactorily appears to this court that the material facts charged in the said bill of complaint are true and that the defendant, . .^ ^. ANK FOU ALIMONY JS'o. 52 parties respectively. ;in. plaintiff and defendant, he and they hereby are divorced from bed and board forever (or for a limited tinn ), but not other- wise from Ihe bonds of matrimony and that the marriage be- tween the said parties be and remain otherwise, in full force. and that the said plaintiff is entitled to a separate mainte- nance from the said defendant and that she be allowed, and that the said defendant do pay to her, the said plaintiff, the sum of $. . . . per year, commencing from the time of the filing of the said plaintiff's bill of complaint in this cause, that is to say. from the day of . .' , A. D. 19...., and that the same be paid in monthly installments of S each, payable, in advance on the day of each and every month thereafter until the further order of tli is court. And it is further ordered, adjudged and decreed that this decree lie and remain a lien on the real estate of the defend ant until he shall have given security for the faithful perform ance thereof, to the satisfaction of this court, or of the said plaintiff, and that the defendant pay to the plaintiff or her attorney the costs of tjiis suit to be taxed, including an at- torney Jee of $ and that in case of default being made in the payment of the said installments of money as the same shall become due, or of the costs herein, that execution issue for the same: and that the plaintiff have leave to cause this decree or a certified copy thereof to be recorded in the otlice of the Register of Deeds of any county in this state wherein the real estate of the defendant is situate, as a lien on such property as aforesaid, and that either party may be at liberty to apply to this court for further directions in relation there- to, as occasion may require. Circuit Judge. Kxamined. countersigned and entered by me. Clerk. 469 No. 53 FORMS IN DIVORCE PROCEDURE No. 53. Decree Annulling Marriage. (See Text, 446.) STATE OF MICHIGAN. The Circuit Court for the County of In Chancery. Plaintiff, Defendant. At a session of said court held at the courthouse in the city of , in said county on the day of , A. D. 19 Present Honorable , Circuit Judge. This cause having come on to be heard upon the pleadings and proofs taken therein in open court, and having been ar- gued by counsel for the parties respectively, and the court be- ing fully advised in the premises, and it appearing to the court that the material allegations in the bill of complaint contained are true, and that the marriage mentioned in said bill was procured by the defendant by force, fraud and misrepresenta- tion on the part of said defendant, and that the equities of the case are with the plaintiff: On motion of , attorney for said plaintiff, it is ordered, adjudged and decreed by the court now here that the said marriage between the plaintiff and the de- fendant be declared and the same is hereby declared to be absolutely void and said marriage is hereby annulled. " And it is further ordered, adjudged and decreed that the said defendant pay to the said plaintiff the costs of this suit to be taxed and that execution issue therefor. Circuit Judge. Examined, countersigned and entered by me, Clerk. No. 54. Decree Affirming Marriage. STATE OF MICHIGAN. The Circuit Court for the County of In Chancery. 470 PETITION FOR RE-HEAK1M. No. 55 Plaintiff, v. Defendant. At a session of said court held at the courthouse in the city of in said county on the day of , A. D. 19 Present Honorable , Circuit Judge. This cause having come on to be heard upon the pleadings of the respective parties on file, and the proofs taken therein in open court, and having been argued by counsel for the par- ties respectively, and the court being fully advised in the prem- ises, and it appearing to the court that the material allega- tions in the bill of complaint contained are true and that the s;iil marriage between the plaintiff and the defendant was and is in all respects lawful and in accordance with the laws of this state, and that the equities of the case as set forth in said bill are with the plaintiff: Therefore, upon due consideration thereof it is ordered, ad- judged and decreed by the court now here that the said mar- riage between the plaintiff and the defendant in this cause, be and the same is hereby in all things affirmed. It is further ordered, adjudged and decreed that the said de- fendant pay to the said plaintiff the costs of this suit to be taxed, including an attorney fee of $ , and that in case of non-payment, execution may issue therefor. Circuit Judge. Kxamincd, countersigned and entered by me. Clerk. No. 55. Petition for Re-Hearing. (See Text, 467.) STATE OF MICHIGAN. The Circuit Court tor tlit> County of In Chancery. Plaintiff, v. Defendant. 471 No. 56 FORMS IN DIVORCE PROCEDURE To the Circuit Court for the County of In Chancery. The petition of - . . , the above named defendant respectfully shows: I. That on the day of , A. D. 19 , a decree was made in the above entitled cause by this court, wherein and whereby it was, among other things, ordered, ad; judged and decreed (state part of decree complained of). II. That so much of the said decree above recited is erroneous because (state reasons in full)' III. That said decree has been settled, signed and entered, but not yet enrolled. Wherefore, your petitioner prays that the court will grant a re-hearing of the said cause, he the said petitioner, submit- ting to pay such costs as the court shall award in- case this complaint shall be found to be groundless. 1 Attorney for Petitioner. , (Usual Verification). We certify that we have examined- the case referred to in the foregoing petition and are of opinion that the decree there- in mentioned is erroneous in the particulars mentioned in said petition. Attorney for . . Of Counsel for. No. 56. Order for Re-Hearing. (See Text, 467.) STATE OF MICHIGAN. The Circuit Court for the County of In Chancery. 472 ORDER DENYING RE-HEARING No. 57 Plaintiff, V. Defendant At a session of said court held at the courthouse in the city of , in said county on the day of , A. D. 19 Present Honorable , Circuit Judge. In this cause on reading and filing the petition duly verified of the above named defendant, with a certificate of and counsel of this court thereto attached : On motion of , attorney, and of counsel for the said defendant and counsel for the plaintiff having been heard in opposition thereto, it is ordered that a re-hearing be had in said cause as to the matters complained of in the said petition in this court on the day of A. D. 19. ... (or at the next term of this court) , and that in the meantime all proceedings in said cause against said petitioners , on said decree be staved. Circuit Judge. Aa mined, countersigned and entered bv me. Clerk. No. 57. Order Denying Re-Hearing. (See Text, 467.) STATE OF MICHIGAN. The Circuit Court for the Countv of . . In Chancer\. Plaintiff, v. Defendant. At a session of said court held at the conn house in the city 473 No. 58 FORMS IN DIVORCE PROCEDURE / of in said county on the day of , A. D. 19 Present Honorable , Circuit Judge. This cause canie on to be heard upon the petition of the de- fendant therein duly verified and was argued by counsel for the parties respectively, and it appearing to the court that there is no error in the decree heretofore and on the day of , A. D. 19. . . . , entered in said cause therefor. On motion of , attorney, and of counsel for defendant, counsel for the plaintiff, having been heard in opposition thereto it is ordered that a re-hearing of said cause be and the same is hereby denied. Circuit Judge. Examined, countersigned and entered by me, Clerk. No. 58. Certificate of Enrollment. (See Text, 468.) STATE OF MICHIGAN. The Circuit Court for the County of In Chancery. "i 3 iaintiff,'' v. Defendant. I, the undersigned, Clerk of said court, do hereby Certify that thirty days have elapsed since the entry of the decree in the above entitled cause and that on this date I have attached together for the purpose of enrollment the bill of complaint, subpoena, pleadings, proofs, taxed bill of costs, a fair copy of final decree signed by the Honorable T Circuit Judge, and countersigned by the Clerk of this court, together with all of the 'other papers filed in this cause and annexed thereto this certificate according to the statute in such case made and provided. In testimony whereof, I have hereunto set my hand and af- 474 PETITION FOR DISCHARGE OP DECREE No. 60 fixed the seal of said court this day of A. D. 19.. Clerk. L. S. No. 59. Discharge and Satisfaction of Decree. [See Text, 469.) STATE OP MICHIGAN. The Circuit Court for the County of In Chancery. Plaintiff, v. Defendant. (Caption). In the above entitled cause on reading and filing the stipu- lation of the parties thereto, signed and approved by their attorneys respectively, it is ordered that the decree heretofore and on the day of , A. D. 19 entered in said cause be and the same is hereby fully satisfied and discharged. Circuit Judge. Examined, countersigned and entered by me. Clerk. No. 60. Petition for Discharge of Decree. (See Text STATE OF MICHIGAN. The Circuit Court for the Countv of . . In Chancerv. Plaintiff, v. Defendant. 476 No. GO FORMS IN DIVORCE PROCEDURE To the Court : Your petitioner , represents unto this honorable court as follows : I. That heretofore and on to- wit : the day of A. D. 19. . . ., the final decree was entered in this cause requir- ing your petitioner to pay to the plaintiff the sum of f , and the costs of said suit to be taxed. II. Your petitioner further shows that he has complied with said decree in all respects and has paid to the attorney for said plaintiff, the said sum of money required by said decree to be paid and that said plaintiff has refused and still does re- fuse to satisfy and discharge said decree. Your petitioner therefore prays that an order may be made by this court discharging and satisfying said decree and re- leasing your petitioner from any obligation thereon and that your petitioner may have such other or further relief as to the court may seem proper and as shall be agreeable to equity and good conscience. Petitioner. State of Michigan, County of On this day of , A. D. 19 be- fore me, the undersigned, a Notary Public, in and for said county, personally came to me r known to be the same person who signed the foregoing peti- tion and who being by me duly sworn deposes and says that he has heard read the foregoing petition by him subscribed, and knows the contents thereof, and that the same is true of his own knowledge except as to such matters as are therein stated to be on his information and belief and as to those matters he believes it to be true. Subscribed and sworn to before me this day of , A. D. 19 Notary Public. My Commission expires 476 ORDER DENYING DISCHARGE OF DECREE No. 62 No. 61. Order Discharging Decree. Text. 460.) STATE OF MICHIGAN. The Circuit Court for the County of ........ In Chancery. Plaintiff, v. Defendant. At a session of said court held at the courthouse in Hie city of in said county on the day of , A. D. 19.... r Present Honorable (Mrcuit .hidge. This cause came on to be heard upon the petition of the de- fendant therein .for a discharge of the decree heretofore en- tered in said cause and after hearing counsel for the parties respectively and upon reading said petition and the affidavits agd other proofs in support thereof and the affidavits ami testimony in opposition thereto, it appearing to the court that the said defendant has in all respects complied with the said decree, it is ordered that said decree be and the same is hereby declared to be fully paid, satisfied and discharged. It is further ordered that the said plaintiff pay to 1lie said defendant an attorney fee of f and the costs of hearing of said petition to be taxed. Circuit Examined, countersigned and entered by me. Clerk. No. 62. Order Denying Discharge of Decree. (See Text, 469.) STATE OF MICHIGAN. The Circuit Court for the County of . . In Chancery. Plaintiff, v. Defendant. 477 No. 63 FORMS IX DIVORCE PROCEDURE At a session of said court held at the courthouse in the city of in said county on the day of , A. D. 19.... Present Honorable , Circuit Judge. This cause came on to be heard upon the petition of the defendant therein praying for an order discharging and satis- fying the decree heretofore entered in said cause. On reading said petition and the affidavits and other proofs in support thereof and the affidavits and testimony in opposition thereto and after hearing counsel for the parties respectively, and it appearing to the court that said decree has not been complied with in all respects it is ordered, adjudged and decreed that the prayer of said petition be and the same is hereby denied. It is further ordered that the plaintiff pay to the defendant the costs of the hearing on said petition to be taxed including an attorney fee of $ Circuit Judge. Examined, countersigned and entered by me, Clerk. No. 63. Order Directing Prosecuting Attorney to Appear and Defend. (See Text, 474.) STATE OF MICHIGAN. The Circuit Court for the County of In Chancery. Plaintiff, v. Defendant. At a session of said court held at the courthouse in the city of in said county on the day of A. D. 19 Present Honorable , Circuit Judge. In the above entitled cause it having been made to appear to this court that the public good requires that a defense be made in said cause by the Prosecuting Attorney of said county, 478 OF PROSECUTING ATTORNEY No. 64 it is order* M I that said 1'rosecutiiiu Attorney cause his appear- ance to be entered in said cause within days from this date and procure a copy of the bill of complaint therein and make due and proper investigation as to the facts and circumstances of said cause and to appear on the hearing thereof and defend unless by the further order of this court and upon the report of said Prosecuting Attorney it shall ap- pear to the court that such defense is not necessary. It is further ordered that the said Prosecuting Attorney make a report to this court of his investigation therein and await the further direction of the court. Circuit Judge. Examined, countersigned ami entered by me. Clerk. No. 64. Report of Prosecuting Attorney. (See Text, 474.) STATE OF MICHIGAN. The Circuit Court for the County of ., In Chancery. Plaintiff, v. Defendant. To the Circuit Court for County. I, , the Prosecuting Attorney of said county. do hereby respectfully report to the court that I have pro- cured a copy of the bill of complaint in the above entitled cause, caused my appearance to be entered in said cause and have investigated the matters set forth in said bill of com- plaint and after a full and careful investigation of said cause I believe that there ia collusion between the parties thereto and that the interests of the public require that a defense be made by the Prosecuting Attorney of said county all of which is respectfully submitted. Dated this . . dav of . , A. D. 10. . Prosecuting Attorney. 479 No. 65 FORMS IN DIVORCE PROCEDURE No. 65. Order Appointing an Attorney to Defend. (See Text, 476.) STATE OF MICHIGAN. The Circuit Court for the County .of , In Chancery. Plaintiff, Defendant. At a session of said court held at the court house in the city of .' ........... in said county on the ............ day of ............ , A. D. 19 ____ Present Honorable ............... , Circuit Judge. In the above entitled cause it appearing from the bill of complaint on file in this court that there are minor children of said marriage under the age of ..... ..... years and it further appearing that the Prosecuting Attorney of said county is disqualified by reason of his being engaged as coun- sel for one of the parties to said cause: It is therefore ordered that .............. of the city of ............ in said county, an attorney of this court be and he is hereby appointed and directed to appear in said cause on behalf of said minor children and the interests of the public and defend the same. Circuit Judge. Examined, countersigned and entered by me, Clerk. s- No. 66. Claim of Appeal. (See Text, 479.) STATE OF MICHIGAN. The Circuit Court for the County of , In Chancery. Plaintiff, v. Defendant. 480 NOTICE OF APPEAL No. 67 To the Clerk of said Court: Now comes the above named defendant (or plaintiff) and hereby claims the benefit of an appeal to the Supreme Court of this st;ite from the final decree o'f said court made and rondnvd in this cause by the above named court on the day of , A. D. 19 The sum of f 5.00 for the Clerk's fee for making return to said appeal is herewith paid. Dated this _. day of , A. D. 10 Attorney for No. 67. Notice of Appeal and of Application for Approval of Bond. (See Text, 479.) STATE OF MICHIGAN. The Circuit Court for the County of , In Cham -IM-V. Plaintiff, Defendant. To , Attorney for Sir: Please take notice that , the defendant in the above entitled cause, has appealed to the Supreme Court of this state from the final decree made therein on the day of , A. D. 19 by the Circuit Court for the county of , In Chancery, and that a bond for costs and damages and to stay proceedings in said cause pend- ing such appeal, in the penal sum of $ with and , both of the of in said bounty of as sure- tics. a copy whereof is hereto annexed, has been duly executed and an application will be made to the Honorable , Circuit Judge, at his Chambers in the city of in said county on the day of . . A , A. D. 19. ... at o'clock in the noon for the approval of said bond and the penalty thereof and the sureties thereto. Dated this day of , A. D. 19 Attorney for 481 No. .68 FORMS IN DIVORCE PROCEDURE No. 68. Bond on Appeal. (See Text, 479.) KNOW ALL MEN BY THESE PRESENTS, that we, , of the city of . . . . in the county of and state of , as princi- pal, and and of the of , county of and state of Michigan as sureties, are held and firmly bound unto of in the sum of $ , lawful money of the United States ; to be paid to the said or to his certain attorneys, executors, administrators or as- signs, to which payment well and truly to be made, we bind ourselves and our heirs, executors, administrators and each and every of them jointly and severally firmly by these presents. Sealed with our seals and dated this day of A. D, 19 WHEREAS the above bounden has appealed to the Supreme Court of the state of Michigan from a decree made by the Circuit Court for the county of ....... In Chancery, in a cause in said court wherein the said is plaintiff and the above bounden defendant. NOW THEREFORE, the condition of this obligation is such that if the above bounden shall diligently prosecute his said appeal to effect and shall per- form and satisfy such decree or order as the said Supreme Court shall make in said cause, and shall pay all costs of the said therein that said Supreme Court shall award to be paid by him, the said , then this obligation to be void, otherwise to remain in full force. (L. S.) (L. S.) c .(L. S.) Due proof of service of notice of application for the ap- proval of the within bond having been filed : the within bond and the penalty thereof and the sureties thereto are hereby ap- proved. Dated this day of , A. D. 19 Circuit Judge. 482 CASE ON APPEAL N >. 69 No. 69. Case on Appeal. (See Text, 482.) STATE OF MICHIGAN. The Circuit Court for the County of In Chancery. Plaintiff, v. Defendant. At a session of the said court held at the court house in the city of .............. in said county on the ............ day of .............. , A. D. 19 ____ , before the Honorable .............. , Judge of the ^said court, this cause rame on for hearing on examination of witnesses in open court as in a suit at law, and thereupon the said plaintiff appeared by ...... ........ , his counsel, and the defendant also appeared by ............ \ ., his counsel : and thereupon the counsel for the plaintiff called as a witness ..... ................. who, haying been duly sworn testified in substance as follows : I reside at ..... ....... and am ............ years of age (state substance of testimony in narrative form except in such particular instances where a statement by question and answer is necessary to a full uuderxtnndinij of the meaning of the ir if nesses. Where a question is asked which was objected to at the time and it is desired to preserve the benefit of the ob- jection state as folloirx) : and thereupon the counsel for the plaintiff asked the said witness the following question : Q. (state question verbatim). to which counsel for the defendant objected because (state reason* for objection as given at the time) and the witness answered (state answer, etc., as to all evidence objected to). (After the direct examination say) : on cross examination the said witness testified in substance (state the testimony as in the direct). On re-direct examination the said witness testified in sub- siance (state testimony, etc., with each witness for plaintiff, then say) ; the plaintiff thereupon rested and counsel for the defendant called as a witness one ............. . who having been duly sworn testified in substance as follows: (if . 10. ... at o'clock in the . . . noon to settle and sijrn the same. Dated this day of , A. D. 19 Attorney for No. 71. Notice of Amendments to Case on Appeal. (See Text, 483.) STATE OF MICHIGAN. The Circuit Court for the County of , In Chancery. Plaintiff, v. Defendant. To , attorney for Sir: Please to take notice that I shall propose the following amendments to the proposed case on appeal of the substance of the evidence in this cause, viz: First amendment, on line . . . ., page .... of the said pro- posed case strike out the words and insert the words Second amendment, on line of page after the words insert the words Third amendment, on line .... of page strike out the words and all thereafter to and including the word on line . . . . , page .... (And so on designating all changes desired.) Dated this day of , A. D. 19 Attorney for 486 AIM'KMHX A NOTE ON THE FULL FAITH AND CREDIT CLAUSE BY FRANKLIN A. BEECHER And the Leading Cases of ATHERTON V. ATHERTON AND HADDOCK V. HADDOCK. HISTORY Atherton v. Atkerton, 82 Hun 179, 31 N. Y. S. 977, 64 N. Y. St. Rep. 798, 155 N. Y. 129, 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650, 181 U\ S. 155, 21 S. Ct. 544, 45 L. Ed. 794. Haddock v. Haddock, 75 App. Div. 565, 78 N. Y. S. 304, 12 N. Y, Ann. Cas. 14, 76 App. Div. 620, 79 N. Y. S. 1133, 178 N. Y. 557, 70 N. E. 1099, 109 App. Div. 502, 96 N. Y. S. 522, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867. APPENDIX A MTi: ox THE FULL FAITH AND CREDIT CLAUSE. Article IV, Section ],. of the Constitution of the United States reads as follows: ''Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other state. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceeding shall be proved and the effect thereof." The object and purpose of this provision is to give to the public acts, records and proceedings of a state the same full faith and credit in other states that they have in their own state. 1 Thus the effect is to secure to a judgment rendered in ritEIHT CLAUSE rendered had jurisdiction of the person or the thing. 'Upon principle,' says Chief Justice Marshall, 'it would seem that the operation of every judgment must depend on the power of the court to render that judgment; or, in other words, on its jurisdiction over the subject-matter which it has de- termined. In some cases that jurisdiction unquestionably depends ;is well on the state of the thing as on the constitu- tion of the court. If by any means whatever a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of property, upon principle, then, it would seem that, to a certain extent, the capacity of the court to act upon the thing condemned, aris- ing from its being within, or without, their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sen- tence,' Rose v. Himely, 4 Cranch, 269. To .the same effect see Story on the Constitution, chap. XXIX; 1 Greenleaf on Evidence. 540. 'The Act of Congress above referred to, which was passed 26th of May, 1790, after providing for the mode of authenti- cating the acts, records and judicial proceedings of the States, declares, 'and the said records and judicial proceed- ings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken.' It has been supposed that this act, in connection with the constitutional provision which it was intended to carry out, had the effect of rendering the judgments of each state equivalent to domestic judgments in every other state, or at least of giving to them in every other state the same effect, in all respects which they have in the state where they are ren- dered. And the language of this court in Mills v. Duryea, 7 Cranch, 484, seemed to give countenance to this idea. The court in that case held that the act gave to the judgments to each state the same conclusive effect, as records, in all the states, as they had at home; and that nil debet could not be pleaded to any action brought thereon in another state. This decision has never been departed from in rela- tion to the general effect of such judgments where the ques- tions raised were not questions of jurisdiction. But where 491 APPENDIX the jurisdiction of the court which rendered the judgment has been assailed, quite a different view has prevailed." In conclusion the court said : "On the whole, we think it clear that the jurisdiction of the court by which a judgment is rendered in any state may be questioned in a collateral pro- ceedings in another state, notwithstanding the provision of the fourth article of the Constitution -and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself." Jurisdictional questions concerning the validity and effect of judgments rendered in another state most frequently have their source in cases where judgments were rendered against non-residents. The doctrine is well settled that judicial process of a state has no force or efficacy beyond the territorial limits in which it was issued. Process issued in one state and served in another cannot effect an appear- ance, for in such cases, the service is purely constructive in nature, and this statement is equally true of service by publication or advertisement; and, furthermore, it is by none of these modes of service that courts of the state can ac- quire jurisdiction for the purppse of rendering a personal judgment against a defendant valid in other states, for where the only service of process on the defendant was con- structive, a .judgment rendered in all action brought against him in a state is not valid or binding in the courts of any other state. In divorce proceedings the general rule may be laid down that where a decree of divorce was rendered against a de- fendant who was either personally served or entered *his ap- pearance, such judgment is sufficiently efficacious to entitle it to the protection of the full faith and credit provision of the Constitution, 7 for when a suit for divorce is instituted in a state court of competent jurisdiction and the defendant is personally served, or he enters his appearance, jurisdic- tion is given to the court to render a judgment not only valid in the state where the suit was brought but valid in every other state. But a divorce granted against a non-resi- dent upon constructive service of process is only valid in the state in whiph it was granted, and has no extra-territorial effect as to property rights, alimony and custody of minor 7. Cheever v. Wilson, 9 Wall. 108, 19 L. Ed. 804. 492 II I.I. I Aim AND CREDIT CLAUSE children.* In a case, 8 the court speaking of foreign divorces in which judgments were rendered on constructive service, said: "Under the laws of the state we permit a husband or wife, as'the case may lie, to obtain a valid divorce by service of i he .summons by publication upon the defendant residing in another jurisdiction, yet we do not recognize as valid a judgment of divorce obtained by a husband or wife in a sister state, unless the defendant has been personally served with process in that jurisdiction, or has appeared and submitted himself to the jurisdiction of that court. The Constitution of the United States requires that 'full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state,' and it is said that the comity of states and of nations, as well as public policy, re- quire one jurisdiction to observe as valid a marriage legally contracted in another jurisdiction. Seemingly we do neither/' The full faith and credit provision was not infringed where the Massachusetts courts under Massachusetts Pub- lic Statutes, chap. 1 and G, 17, refused to give effect to a decree of divorce by a court of another state to a citizen of the State of Massachusetts, where he was domiciled, but who had temporarily resided in another state for the purpose of obtaining a divorce on grounds which happened while the parties resided there, but these grounds did not constitute a sufficient cause in Massachusetts. 10 . In a case 11 which had its origin in Kentucky by' the hushand and later proceedings were instituted in New York by the wife, the court refused to give recognition to the validity of the decree granted in Kentucky to the husband where the wife had abandoned him and resided in New York, for the reason that the wife had been only constructively served. This case was reversed, up- on appeal to the United States Supreme Court. It was de- cided there 12 that the decree was a judgment entitled to full faith and credit in every other state in the Union in accord- ance with the purport of the constitutional provision. In this case the court said: "This case does not involve the validity of a divorce granted, on constructive service, by the 8. Hekking v. Pfaff, 82 Fed. S. 14, 47 L. Ed. 366, 23 Sup. Ct. Rep. 403. Rep. 237. 9. Hamilton v. Hamilton, 56 N. 11. Atherton v. Atherton, 155 T. Supp. 122. N. Y. 129, 49 N. E. 933. 10. Andrews v. Andrews, 186 U. 12. Atherton v. Atherton, 181 U. S. 155, 21 Sup. Ct. Rep. 544. 493- APPENDIX court of a state in which only one of the parties ever had a domicile; nor the question to what extent the good faith of the domicile may be afterwards inquired into. In this case, the divorce in Kentucky was by the court of the state which had always been the undoubted domicile of the husband, and which was the only matrimonial domicile of the husband and , wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky." Again, in a case, 13 it was decided that where a husband abandoned his wife without justifiable cause and goes to another state where he becomes domiciled; while the wife remains in the 'matrimonial domicile, her domicile cannot become construc- tively that of the husband, and the mere fact that the domicile within the state of one party to the marriage contract does not give that state jurisdiction, where the husband was only constructively served and did not appear, to render a decree of divorce, i. e., a judgment enforceable in all other states of the United States by virtue of the full faith and credit pro- vision of the constitution. The cases of Atherton v. Atherton and Haddock v. Had- dock present the question as to whether the pro vision 'of the Federal Constitution requiring full faith and credit to be given in each state to the judicial proceedings of every other state applies to divorce proceedings, where the plaintiff only is domiciled within the territorial jurisdiction of the court granting the decree and service on the defendant residing in another state is by publication only. The statement of facts and the opinions in those two cases are published in full in this appendix, as affording a ready and convenient reference to the subject of the conflict of di- vorce laws in this country, as well as the construction put upon the full faith and credit clause of the constitution by the Supreme Court of the United States. It has sometimes been said that the case of Haddock v. Haddock overrules, in effect, former decisions of the same court, and especially the decision in Atherton v. Atherton, and a superficial reading of the statements of facts and the prevailing opinions in these two cases is liable to lead one to such conclusion. But a careful reading of the statement of facts prepared by Mr. Justice Gray in the case of Ather- 13. Haddock v. Haddock, 201 U. S. 562. 494 ATIII:I;TM\ v. ATIIKI: i<>\ ton v. Alherton, .-iiid comparison with tin- facts and prevail- ing opinion in Haddock v. Haddock, will show that the de- cisions in the two cases an* not materially conflicting. The distinguishing 1'eainres of the tacts upon which these t\vo cases were decided are pointed out in another part of this work, i See. 39, page 40.) ATHERTON v. ATHERTOX. For the official reference, see the second page of this Appendix. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. No. 17. Argued December 15, 1899. Decided April 15, 1901. A husband and wife had their matrimonial domicil in Kentucky, which was the domicil of the husband. She left him there, and returned to her mother's at Clinton 'in the State of New York. He filed a peti- tion against her in a court of Kentucky for a divorce from the bond of matrimony for her abandonment, which was a cause of divorce by the laws of Kentucky; and alleged on oath, as required by the statutes of Kentucky, that she might be found at Clinton, and that Clinton was the post-office nearest the place where she might be found. The clerk, as required by those statutes, entered a warning order to the wife to appear in sixty days, and appointed an attorney at law for her. The attorney wrote to her at Clinton, advising her of the object of the petition, and enclosing a copy thereof, in a let- ter addressed to her by mail at that place, and having on 'the en- velope a direction to return it to him, if not delivered in ten days. A month later, the attorney, having received no answer, made his report to the court. Five weeks afterwards, the court, after taking evidence, granted the husband an absolute decree of divorce for the wife's abandonment of him. Held, that this decree was a bar to the wife's petition for a divorce in New York. Statement of the Case. THIS was a suit brought January 11, 18JKJ, in the Supreme Court of the State of New York, by Mary G. Atherton against Peter Lee Atherton, for a divorce from bed and board, for the custody of the child of the parties, and for the support of the plaintiff and the child, on the ground of cruel and abusive treatment of the plaintiff by the defendant. The defendant ap- peared in the case; and at a trial by the court without a jury at June term, 1893, the court found the following facts: On October 17, 1888, the parties were married at Clinton, 495 APPENDIX Oneida County, New York, the plaintiff being a resident of that place, and the defendant a resident of Louisville, Ken- tucky. Immediately after the marriage, the parties went to and resided at Louisville, in the house with the defendant's parents, had a child born to them on Jan. 8, 1890, and there continued to reside as husband and wife until October 3, 1891. Then, owing to his cruel and abusive treatment, without fault on her part, she. left him, taking the child with her, and in a few days thereafter, returned to her mother at Clinton, and has ever since resided there with her mother, and is a resi- dent and domiciled in the State of New York, and has not lived or cohabited with the defendant. When she so left him and went to Clinton, she did so with the purpose and intention of not returning to the State of Kentucky, but of permanently residing in the State of New York; and this purpose and intention were understood by the defendant at the time, and were contemplated and evidenced by an agree- ment entered into, at Louisville, October 10, 1891, by the parties and one Henry P. Goodenow, under advice of counsel,, which is copied in 'the margin. 1 The defendant continued to 'The undersigned, Peter Lee Atherton, and his wife, Mary G. Ather- ton, having ceased to live together as man and wife, without in any way acknowledging upon whom is the fault, or condoning the conduct of the one or the other which has led to the existing state of affairs, or preventing any consequence which may follow, or right which may arise to .either party if such status shall continue, desire to provide for the best interest of their child, Mary Valeria Atherton. With this view they have entered into the following agreement: Peter Lee Atherton contracting with Henry P. Goodenow as trustee for Mary G. Atherton, and said trustee contracting with Peter Lee Ather- ton on behalf and jointly with Mary G. Atherton. 1. The child is hereby committed for its nurture, education and con- trol to the joint custody and guardianship of her mother, Mary G. Atherton, and her paternal grandmother, Maria B. Atherton, on the following basis: The domicil of the child is to be the State .of Kentucky. The mother is to have the child until January 1, 1892. During the years 1892, 1893 and 1894 the grandmother is to have the child and control its abode, travel and custody from January 1st to the first week in May; and the mother from the first week in May to December 31st. After that period, during the existence of this arrangement, the grandmother's custody, control, etc., is to exist during the first four and last two months of the year; that of the mother during the other months of the year. 2. During that part of each year in which the child is under the con- trol of the mother, Peter Lee Atherton is to pay into the hands of Mary G. Atherton $500 in installments of equal amounts at the beginning of each of the months of said control, for the comfortable maintenance of 496 ATMKK'PON V. ATMi:i{TOX reside in Louisville, and is a resident of the Ktate of Kentucky. Tin- defendant, in his answer, besides denying the cruelly charged, sot up a dmve of divorce from the bond of matri- mony, obtained by him against his wife March 14, 1893, in a court of Jefferson County in the State of Kentucky, empower- ed to jjrant divorces. I'.v which "This action having come on to be heard upon the pleading!* report of attorney for the ab- -eut defendant, and the evidence and the court being advised, it is considered by the court that the plain till. Peter Lee Atherton, lias resided in .leM'erson County. Kentucky, con- tinuously lor ten years last past; and that he and the defend- the child. During the rest of each year, he is to himself at his sole 'expense provide for the support of the child. The expense of conveying the child, with a proper attendant in the Journey, to the mother, Mary G. Atherton, is to be borne by the father, Peter Lee Atherton, and the like expense, on the journey back to the grandmother, is to come out of the sum provided for the child's support. 3. Peter Lee Atherton is to pay into the hands of Mary G. Atherton for her support $125 at the beginning of each month, until this agree- ment does by its own terms end. This is to be taken in lieu of alimony and dowable and distributable share in his estate. 4. The following provisions are made for the termination of this agreement, and for the contingency of various events that may hap- pen in the future; among others, divorce and second marriage of Peter Lee Atherton or Mary G. Atherton. ^ a. This agreement as to the child is to terminate on her arrival at fourteen years of age, it being recognized that she will then be old enough to choose for herself. It shall, of course, in like manner termi- nate at her death. \ 6. This agreement -as to the support of Mary G. Atherton is to end at her death, or upon her again marrying, and in any event on the 8th day of January, 1904. c. If Mary G. Atherton shall marry again or die, the person then being joint guardian with her of the child shall become its sole guar- dian. If Maria B. Atherton shall die while she is joint guardian, Peter Lee Atherton, if alive, or if he be dead, his father, John M. Atherton. shall choose a successor in the joint guardianship; and if Mary G. Atherton objects to the person so nominated, the senior (in years) judge of the Jefferson circuit court shall decide the question of fitness, and confirm or reject such nomination. d. A successor to said successor may under similar circumstances be in like manner chosen. e. If, during the existence of this agreement, Mary G. Atherton be- ing then joint guardian, John M. Atherton and Maria B. Atherton shall die, and Peter Lee Atherton die or be or become married, the sole guardianship shall rest in said Mary G. Atherton. /. If, during the lives of Peter Lee Atherton and Mary G. Atherton, a sole guardianship shall have resulted under the terms of this agree- ment, each parent shall have reasonable access to and right of visita- 497 APPENDIX ant, Mary G. Atherton, were married on the 17th day of Octo- ber, 1888 ; that from the date of said marriage the said plain- tiff and defendant resided in Jefferson 'County, Kentucky; that while the plaintiff and defendant were thus residing in Jefferson County, Kentucky, to wit, in the month of October, 1891, the defendant, Mary G. Atherton, without fault upon the part of the plaintiff, abandoned him, and that said abandon- ment has continued without interruption from that time to this, and at the filing of the petition herein had existed for more than one year; that the defendant, Mary G. Atherton, had, at the filing of the petition herein, been absent from this State for more than four months; that therefore it is further considered and adjudged by the court that the plaintiff, Peter Lee Atherton, is entitled to the decree of divorce prayed for in this petition, and that the bonds of matrimony between the said plaintiff, Peter Lee Atherton, and the said defendant, Mary G. Atherton, be and they are Hereby dissolved." By the record of that decree, duly verified, the following appeared : On December 28, 1892, the plaintiff filed a petition under oath, containing the same statements as the decree, and also stating "that the said defendant may be found in Clinton, State of New York, and that in said Clinton is kept the post- office which is nearest to the place where the defendant may be found." On the same day, pursuant to the requirements of the statutes of Kentucky, the <;lerk made an order, warning the defendant to appear within sixty days and answer the petition, and appointing John C. Walker, an attorney of the court, to defend for her and in her behalf, and to inform her of the nature and pendency of the suit. On February 6, 1893, Walker filed his report, in which he stated: "On this, the 5th day of January, 1893, I wrote to said defendant, Mary G. Atherton, at Clinton, in the State of New York, fully advis- tion from the child, notwithstanding such parent jnay have again mar- ried. g. , If a divorce shall be granted, this agreement, so far as it con- cerns provision for Mary G. Atherton, shall be carried into the decree, as in full satisfaction of all claim for alimony, and so far as concerns provision for and custody of the child, reserving to the court the usual power to provide against events and contingencies not covered by this agreement. Witness the signatures of all the parties this October 10th, 1891. HENBY P. GOODENOW. MABY G. ATHEBTON. PETEB LEE ATHERTON. 498 VIIIKKTON V. ATHKKTON ing her of the objects ;maid letter tn ber at said place, paid the postage, had printeouis\ ille. Ky.' Said letter has not been returned to me. I have received no answer thereto from said defend- ant or any one else for her. and do not know nor am I advised of any defence to make for her, and make none, only that which the law in such cases makes for non-resident defend- ants." The agreement of October 1(1. 1891, before mentioned r and certain depositions, set forth in full, taken at various dates from February 23 to March 3, 1893, were filed in the cause in Kentucky before the hearing. It was agreed that either party might refer to any statute of the State of Kentucky, or decision of its courts. The Supreme Court of New York found that the wife "wa> not personally served with process within the State of Ken- tucky, or at all, nor did she. in any manner appear, or author- ize-an appearance for her, in the said action and proceeding;" and that before the commencement of that suit, and ever since, she had ceased to be a resident of Kentucky, and had become and was a resident of the State of New York, domi- ciled and residing in Clinton, with her child. The court decided that the decree in Kentucky was inopera- live and void as against the wife, and no bar to this action; and gave judgment in her favor for a divorce from bed and hoard, and for the custody of the child, and for the support of herself and the child. That judgment was affirmed by the general term of the Su- preme Court of New York, and by the Court of Appeals of the State. 82 Hun, 179; !."> N. Y.* 129. The defendant sued out this writ of error, on the ground that the judgment did not give full faith and credit to the de- cree of the 'court in Kentucky, as required by the Constitution and laws of the United States.' Mr. Alexander Pope -Humphrey for plaintiff in error. Mr. George M. Davie was on his brief. Mr. William Kernati for defendant in error. 499 APPENDIX MR. JUSTICE GRAY, after stating the case as above, delivered ihe opinion of the court. Opinion of the Court. The first section of the fourth article of the Constitution of the United States is as follows: "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." This section was intended to give the same conclusive effect to the judgments of all the States, so as to promote certainty and uniformity in the rule among them. And Congress, in the ex- ercise of the power so conferred, besides prescribing the man- ner in which the records and judicial proceedings of any State may be authenticated, has defined the effect thereof, by en- acting that "the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." Rev. Stat. 905, reenacting act of May 26, 1790, c. 11, 1 Stat. 122; Huntington v. Attrill, (1892) 146 U. S. 657, 684. ' By the General Statutes of Kentucky of 1873, c. 52, art. 3, courts of equity may grant a divorce for abandonment by one party of the other for one year ; petitions for divorce must be brought in the county where the wife usually resides if she has an actual residence in the State ; if not, then in the county of the husband's residence; and shall not be taken for con- fessed, or be sustained by confessions of the defendant alone, but must be supported by other proofs. By the Civil Code of Practice of Kentucky of 1876, tit. 4, c. 2, art. 2, if a defendant has been absent from the State four months, and the plaintiff files an affidavit stating in what country the defendant resides or may be found and the name of the place wherein a post-office is kept nearest tp the place where the defendant resides or may be found, the clerk may make an order warning the defendant to defend the action within sixty days; and shall at the same time appoint, as attorney for the defendant, a regular practising attorney of the court, whose duty it shall be to make diligent efforts to inform the defendant by mail concerning the pendency and nature of the action against him, and to report to. the court 500 ATIIKKTMN V. ATI [ UiTi > N the result of his efforts; and a defendant against whom a warning order is made, and for whom an attorney is appoint- ed, is deemed to have been constructively summoned on the thirtieth, day thereafter, and the action may proceed accord- ingly- In accordance with these statutes, on December 28, 1892, i lie Imsliaiul filed in a proper court of Kentucky a petition, under oath, for a divorce from the bond of matrimony, alleg- ing his wife's abandonment of him ever since October, 1891, and that she had been absent from the State for more than four months, and might be found at Clinton in the State of New York, and that in Clinton was kept the postoffice nearest the place where she might be found; and the cferk entered a warning order, and appointed an attorney at law for the defendant. On January ."., 18,93, that attorney wrote to the wife at Clinton, fully advising her of the object of the peti- tion for divorce, and enclosing a copy thereof, in a letter ad- dressed ii her by mail at that place, and having printed on the envelope a direction to return it to him, if not delivered \\iihin ten days. On February 6, 1893, the attorney, not hav- ing received that letter again, or any answer from the de- fendant, or in her behalf, made his report to the court. And on Man-h 14, IS!). ., the court, after taking evidence, including an agreement made by the parties in Kentucky, October 10, 1891, as to the domicil, custody and support of their child, granted to the husband an absolute divorce for his wife's abandonment of him. There can be no doubt that this decree was by law and usage entitled to full faith and credit as an absolute decree of divorce in the State of Kentucky. The Court of Appeals of that State has held that, under its statutes, a wife resid- ing in the State was entitled to obtain a decree of divorce against a husband who had left the State, or who had never been within it; and Chief Justice Robertson said: ''It would be a reproach to our legislation if a faithless husband in Kentucky could, by leaving the State, deprive his abandoned wife of a power of obtaining a divorce at home." RhymA v. Ifliittns, (1870) 7 Bush, 316; Pewl \. /Vrrrf. iisilli 91 Ken- tucky, 034. That court has recognized that the regulation of divorce belongs to the legislature of the domicil of the parties. Maguire v. Maguire, (1838) 7 Dana, 181, 185-187. And the same court, where husband and wife have lived together in 501 APPENDIX Kentucky, aud she abandoned him, and he became a bona fide citizen of Indiana, held that a divorce from the bonds of matrimony, obtained by him against the wife in that State, by proceedings on constructive service, and according to the laws of that State, determined the status of the parties in Kentucky. Hawkins \. Ragsdale, (1882) 80 Kentucky, 353. There is a weight of authority in accord with the views maintained by the Court of Appeals of Kentucky, although there are some decisions of learned courts to the contrary. The purpose and effect of a decree *>f divorce from the bond of matrimony, by a court of competent jurisdiction, are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty, that the guilty party shall not nmrry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage. The rule as to the notice necessary to give full effect to a decree of divorce is different from that which is required in suits in personam. In Pewtwyer v. Neff, (1877) 95 U. S. 714, 734, this court, speaking by Mr. Justice Field, while deciding that a judg- ment of a state court on a debt could not be supported with- out personal service on the defendant within the State or his appearance in the cause, took occasion to say: "To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by any- thing we have said, that a State may not authorize proceed- ings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident. The x jurisdiction which every State possesses to determine the civil status and capacities of all its inhabi- tants involves authority to prescribe the conditions on which the proceedings affecting them may be commenced and carried on within its territory. The State, for example, has absolute right to prescribe the conditions .upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties, guilty of acts for which, by the law of the State, a dissolu- '502 ATHI:I;TO\ v. ATHKUTOX tion may lie ^ranted, may have remove*! to a State where no dissolution is permitted. The complaining: party would there- fore fail if a divorce were sought in the State of the defend- ;nii ; and if application could not be made to the tribunals of the complainant's doniicil in such case, and proceedings I.e there instituted without personal service of process or per- sonal notice to the oU'endinj; party, the injured ciii/.en would lie without redress. 2 Bishop on Marriage and Divorce, I :,<;." In r f //rr/r;/ v. Clayton, (1884) 110 U. 8. 701, which involved the validity of a decree of divorce, obtained in Colorado by a husband domiciled there, agains! his wife for unjustifiably re- fusing to live with him, this court said: ''The courts of the State of the doniicil of the parties doubtless have jurisdiction to decree a divorce in accordance with its laws, for any cause allowed by those laws, without regard to the place of the mar- riage, or to that of the commission of the offence for which the divorce is granted; and a divorce so obtained is valid everywhere. Story. Conflict of Laws, 230a; Cheever v. H"/7 .so//.'i Wall, ins; Harrr,/ v. l-'tirnir. 8 App. Cas. 43. If a wife is living apart from her husband without sufficient cause, his doniicil is in law her doniicil: and in the absence of any proof of fraud or misconduct on his part, a divorce obtained by him in the State of his domicil, after reasonable notice to Tier, either by personal service or by publication in accord- ance with its laws, is Valid, although she never in fact resided in that State. Burl-en v. N////////O//. ll." Mass. 438; Hunt v. Hunt, 72 N. Y. 218. But in order to make the divorce valid, either in the State in which it is granted or in another State, there must, unless the defendant appeared in the suit, have been such notice to her as the law of the first State requires." 110 IT. S. 705. In that case the decree of divorce was held void, because the notice required by the laws of the State had not been given ; and the finding of the court below th'at the wife, at the time of the proceedings for divorce, was a citizen and resident of the State of Illinois, was given no weight, because, as this court said, it was hard to see how, if she un- justifiably refused to live with her husband in Colorado, she could lawfully acquire in his lifetime a separate domicil in another State; or how, if the Colorado court had jurisdiction to render the decree of divorce, and did render it upon the ground of her unlawful absence from him, the finding of the 503 APPENDIX court below :,; Rev. Stat. of 1836, c. 76, 39, 40, and note of Commissioners; Rosa v. Ross, 129 Mass. 243, 248. In Hood v. Hood, (1865) 11 Allen, 196, the husband and \\ife, after living together in Massachusetts, removed to Illinois, and there lived together; the wife, "under circum- stances as to which there was no evidence," and afterwards the husband, came back to Massachusetts, and, while they were living there in his brother-in-law's house for a few weeks, he signed an agreement, reciting that they had separated, and promising to pay her a certain weekly sum so long as she should remain single. She continued to reside in Massa- chusetts; mid he obtained in Illinois a decree of divorce from lier for her desertion, upon such notice as the laws of Illinois authorized in the case of an absent defendant. It was held by the Supreme Judicial Court of Massachusetts, in an opinion delivered by Mr. Justice Hoar, that both parties had their donncil in Illinois, and were subject to the Jurisdiction of its courts; and that the fact of desertion by the wife was conclusively settled between the parties by the decree in Illinois, and it was not competent for the wife to contradict it on a libel afterwards filed by her in Massachusetts; and her^ libel was dismissed. And in Hood v. Hood, (1872) 110 Mass. 463, it appearing that such dismissal was upon the ground of the validity of the previous decree of divorce in Illinois, it was adjudged that that- decree could not be im- peached l.v the wife in a writ of dower by her against third persons, the court saying: "The decree in favor of her hus- hand. dismissing her libel, was then forever conclusive against her. as between themselves. It severed the relation between them; or rather estopped her from averring anything to the contrary of the decree in Illinois which purported to sever that relation. The general rule, however, in regard to es- toppels of record, is that they are good only between the parties of record and their privies. They cannot be set up in collateral proceedings between one of those parties and third persons. But the effect of the judgment in this case was to determine the status of the demandant. So far as it did that, it is a judgment that is operative and conclusive as to all the world." The like view has been affirmed by courts of other States. v. stntr. i isrilii L'S Alabama. 1:5: l.ritlt v. 507 APPENDIX (1859) 39 N. H. 20, 3943; Sliafer v. Bushnell, (1869) 24 Wis- consin, 372; Gould v. Crow, (1874) 57 Missouri, 200; Van Ors- dal v. Van Orsdal, (1885) 67 Iowa, 35; Smith v. Smith, (1891) 43 La. Ann. 1140; In re James, (1893) 99 California, 374; Dunham v. Dunham, (1896) 162 Illinois, 589, 607-610. In Shaw v. jSftaw, (1867) 98 Mass. 158, the husband and wife, domiciled in Massachusetts, left the State to take up their residence in Colorado. In Pennsylvania, on the journey, he treated her with extreme curelty, and she left him and returned to Massachusetts, and continued to reside there. It was held that while they were in Pennsylvania the domicil of both parties remained in Massachusetts, and that the wife might maintain a libel in Massachusetts for the cause occur- ring in Pennsylvania, although the husband before it oc- curred had left Massachusetts with the intention of never re- turning, and never did in fact return, and therefore no notice was or could be served upon him in Massachusetts. In a very recent case, the Court of Errors of New Jersey maintained the validity of a divorce obtained in the State of Utah by a husband, having his bona fide domicil there, against a wife whose domicil was in New Jersey, after publication of the process and complaint in accordance with the statutes of Utah, and personal service upon the wife in New Jersey in time to enable her to make defence, if she wished to do so. Mr. Justice Gummere, speaking for the Court of Errors, said that, at least, "interstate comity requires that a decree of di- vorce, pronounced by a court of the State in which the com- plainant is domiciled, and which has jurisdiction of the sub- ject-matter of the suit, shall, in the absence of fraud, be given full force and effect within the jurisdiction of a sister State, notwithstanding that the defendant does not reside within the jurisdiction of the court which pronounced the decree, and has not been served with process therein; provided that a sub- stituted service has been made in accordance with the provi- sions of the statute of that State, and that actual notice of the pendency of the suit has been given to the defendant, and a reasonable opportunity afforded to put in a defence thereto ; and provided, further, that the ground upon which the decree rests is one which the public policy of the State in which it is sought to be enforced recognizes as a sufficient cause for di- vorce." Felt v. Felt, (1899) 14 Dickinson (59 N. J. Eq.). In New York, North Carolina and South Carolina, the op-^ 508 \. ATHI:I:TO\ |.n;*ite \ lew has prevailed, either upon the Around tli;ii the rule- .1- in nut in- is tin- same in suits for divorce as in ordinary suits /'// iH'i-Noiuiin. or upon the ground that, in the absence of actual notice or apiH-aram-e, the decree, while it may release tin- lihellaut. cannot release the lihellce. from the Imiid of matrimony. /'/*/*/< v. li< Kinilxill. (1898) 155 N. Y. 8$; ///*// \. \Vilxnn. i is:,7) 1 Dev. & Bat. Eq. 568; McCrcery v. Davit, (1894) 44 So. Car. 195. In People v. Baker, 70 X. V. 7S, upon which the subsequent decisions in New York are based, the defendant was married to a woman in the State of Ohio; they afterwards lived to- ireiher in the State of Xew York; the wife, upon notice by publication, and without personal appearance of the husband, he being in New York, obtained a decree of divorce against him in Ohio; and he afterwards married another woman in New York, and was convicted of bigamy there. The convic- tion was attirmcd by the Court of Appeals, without a sugges- tion that the first wife was not domiciled in Ohio at the time of the divorce, but stating the question in the case to be: ''Can a court, in another State, adjudge to be dissolved and at an end the matrimonial relation of a citizen of this State, domiciled and actually abiding here throughout the pendency of the judicial proceedings there, without a voluntary- appear- ance by him therein, and with no actual notice to him there- of, and without personal service of process on him in that State?" The court admitted that "if one party to a proceed- ing is domiciled in a State, the status of that party, as affect- ed by the matrimonial relation, may be adjudged upon and confirmed or changed, in accordance with the laws of that State;" but held that, without personal appearance or actual notice, the decree could not affect the matrimonial relation of the defendant in another State. The court recognized that the law was settled otherwise in some States, and said: "It remains for the Supreme Court of the United Stales, as the final arbiter, to determine how far a judgment rendered in such a case, upon such substituted service of process, shall be operative without the territorial jurisdicion of the tribu- nal giving it." The authorities above cited show the wide diversity of opin- ion existing upon this important subject, and admonish us to confine our decisions to the exact case before us. v 509- APPENDIX This case does not involve the validity of a divorce granted, on constructive service, by the court of a State in which only one of the parties ever had a domicil; nor the question to what extent the good faith of the domicil may be afterwards inquired into. In this case, the divorce in Kentucky was by the court of the State which had always been the undoubted domicil of the husband, and which was the only matrimonial domicil of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Ken- tucky. The husband always had .his domicil in Kentucky, and the matrimonial domicil of the parties was in Kentucky. On De- cember 28, 1892, the husband filed his petition for a divorce in the court of appropriate jurisdiction in Kentucky, alleging an abandonment of him by the wife in Kentucky, and a con- tinuance of that abandonment for a year, which was a cause of divorce by the laws of Kentucky. His petition truly stated, upon oath, as required by the statutes of Kentucky, that the wife might be found at Clinton in the State of New York, and that at Clinton was the post-office nearest the place where she might be found. As required by the statutes of Kentucky, the clerk thereupon entered a warning order to the wife to appear in sixty days, and appointed an attorney at law to represent her. The attorney, on January 5, 1893, wrote to the wife at Clinton, fully advising her of the object of the petition for divorce and enclosing a copy thereof, in a letter addressed to her by mail at Clinton, and having printed on the envelope a direction to return it to him, if not delivered in ten days. There is a presumption of fact, though not of law, that a letter, put into the post-office and properly ad- dressed, is received by thq> person to whom it is addressed. Rosenthal v. Walker, (1884) 111 F. S. 185. On February <5,1S93, the attorney, having received no answer, made his re- port to the court. And on March 14, 1893, the court, after taking evidence, granted the husband an absolute decree of divorce for his wife's abandonment of him. The court of New York has indeed found that the wife "was not personally served with process within the State of Kentucky, or at all." It may be doubted whether this negatives her having received, or had knowledge of, the letter sent to her by the attorney in Kentucky, January 5, 1893, six days 510 ATllKUK'N V. ATHERTON before she began her MUI in New York. But assuming that it docs, tin- quest ion in this case is not whether she had actual notice of the proceedings for divorce. Inn whether such rea- sun;ihle steps had been taken to give her notice, as to bind her liy tlie decree in the State of the domicil. The court in Ne\v York found that the wife left the hus- band and went to Clinton with the purpose and intention of not returning to the St;ite of Kentucky, lnit of permanently residing in the State of New York; and that this purpose, and intention were understood by the husband at the time, and were contemplated and evidenced by the agreement executed l>y the parties in Kentucky. October 10. 1S!1. But that agree- ment was among the proofs submitted to the court in Ken- tucky, and may well have been considered by that court, as the preamble to the agreement states, as simply intended to provide for the interest of their child, recognizing that the parties had ceased to live together as husband and wife, but "without in any way acknowledging upon whom is the fault r or condoning the conduct of the one or the other which has led to the existing state of affairs, or preventing any conse- quence which may follow, or right which may arise to either party if such status shall continue." The agreement contains no mention of the domicil of either husband or wife, but de- clares that the domicil of the child is to be the State of Ken- tucky, and is taken up with providing that its custody shall be half of each year with the mother, and the other half with the paternal grandmother, and with providing for the sup- port and custody of the child, in various future contingencies, including the divorce and second marriage of the husband or of the wife. We are of opinion that the undisputed facts show that such efforts were required by the statutes of Kentuckj-, and were actually made, to give the wife actual notice of the suit in Kentucky, as to make the decree of the court there, granting a divorce upon the ground that she had abandoned her hus- band, as binding on her as if she had been served with notice in Kentucky, or had voluntarily appeared in the suit. Bind- ing her to that full extent, it established, beyond contradic- tion, that she had abandoned her husband, and precludes her from asserting that she left him on account of his cruel treat- ment. To bold otherwise would make it difficult, if not impossible, 511 APPENDIX for the husband to obtain a divorce for the cause alleged, if it actually existed. The wife not being within the State of Ken- tucky, if constructive notice, with all the precautions pre- scribed by the statutes of that Sta^te, were insufficient to bind her by a decree dissolving the bond of matrimony, the hus- band could only get a divorce by suing in the State in which she was found; and by the very fact of suing her there he would admit that she had acquired a separate domicil, (which he denied,) and would disprove his own ground of action that she had abandoned him in Kentucky. The result is that the courts of New York have not given to the Kentucky decree of divorce the faith and credit which it had by law in Kentucky, and that therefore their Judgments must be reversed, and the case remanded to the Supreme Court of New York for further proceedings not inconsistent with this opinion. MB. JUSTICE PECKHAM and THE CHIEF JUSTICE, DISSENTING. MR. JUSTICE PECKHAM, with whom THE CHIEF JUSTICE con- curred, dissenting. I think this case was rightly decided by the Court of Ap- peals of New York, and I therefore dissent from the judg- ment and the opinion of the court herein. I think if the husband had, at his domicil in Kentucky, been guilty of such mis.conduct and cruelty towards his wife as entitled her to a divorce, she had a legal right for that rea- sqn to leave him and to acquire a separate domicil, even in another State. If, under such circumstances, she did leave him, and did acquire a separate domicil in New York State, the Kentucky court did not obtain jurisdiction over her as an absent defendant, by publication of process or sending a copy thereof through the mail to her address in New York. It has long been held that the wife upon such facts could acquire a separate domicil. In Cheever v, Wilson, 9 Wall. 108, 123, 124, it was so decided} and the case of Ditson v. Ditson, 4 R. I. 87, was therein cited with approval upon that proposition. It was said in the. Rhode Island case that "Al- though as a general doctrine the domicil of the husband is by law that of the wife, yet when he commits an offence, or is guilty of such dereliction of duty in the relation as entitled :512 \ i -MUM-ON \. AI MU:IO\ her to have the marriage either partially or totally dissolved, she not only may Inn must, to avoid condonation, establish a separate domicil of her own. This she may establish, nay. when deserted, or compelled to leave her husband, necessin frequently compels her to establish it in a different judicial or state jurisdiction than that of her husband, according in the residence of her family or friends. Under such cir< -u in- stances she gains, and is entitled to gain, for the ]ur}M>ses of jurisdiction, a domicil of her own." This is also held in Hunt v. Hunt, 72 N. Y., 217, where many of the authorities are collected. By the statute of New York in force at the time tin- |>ai -lies were therein married, the court had jurisdiction to grant a limited divorce on the complaint of a married woman, where the marriage had been solemnized in the State and the wife was an actual resident therein at the time of exhibiting her complaint. By virtue of this statute and of the wife's resi dence in New York at the time of exhibiting her complaint (if such residence were legally acquired, as already stated,) the court in that State had jurisdiction of an action for di- vorce against her Imshand, and jurisdiction over the husband wa> complete when he appeared in the suit. Having the right to acquire a residence in the State, it was open to her to prove in the divorce case which she instituted in New York the facts which justified her leaving her husband's home in Kentucky and in acquiring a separate domicil in New York, and the decision of the Kentucky court, that it had jurisdic- tion over her in her husband's suit, was not conclusive against her upon that question. The 'New York court entered upon the inquiry and found the fact that she was justitied liy her husband's acts in leaving his home and in acquiring a new domicil for herself, and that the Kentucky conn therefore ob- tained no jurisdiction over her. It also found the facts neces- sary to warrant it in granting to her a divorce under the la\\s of New York, and it granted one accordingly. This I think the New York court had jurisdiction to do, and it did not thereby refuse the constitutional full faith to the Ken- tucky judgment. That a husband can drive his wife from his home by con- duct which entitles her to a' divorce, and thus force her to lind another domicil, and then commence proceedings in a court of his own domicil. for a divorce, which court obtains 513 APPENDIX jurisdiction over her only by a service of process in the State- of her new domicil, through the mail, and that on such service he can obtain a judgment of divorce which shall be conclusive against her in her action in the cqurt of her own domicil, seems to me to be at war with sound principle and the ad- judged cases. The doctrine of status, even as announced in the opinion of the court, does not reach the case of a husband by his misconduct rendering it necessary for the wife to leave him. I therefore dissent. I am authorized to state that the CHIEF JUSTICE concurs in this dissent. HADDOCK v. HADDOCK. For the official reference, see the second page of this Appendix. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. No. 119. Argued December 11, 1905. Decided April 12, 1906. The husband and wife being domiciled in New York, the husband ( left the wife, acquired, in good faith, after a lapse of years, a domicil in Connecticut, and obtained in that State, and in accordance with its laws, a judgment of divorce based on constructive, and not actual, service of process, on the wife, who meanwhile remained domiciled in New York and never appeared in the action. The wife subse- quently sued for divorce in New York and obtained personal service in that State on the husband who pleaded the Connecticut judgment. Held, Without questioning the power of the State of Connecticut to enforce the decree within its own borders, and without intimating any doubt that the State of New York might give it such degree of efficacy that it might be entitled to in view of the public policy of the State, that the Connecticut decree, rendered as it was without being based on personal service of the process on, and therefore without personal jurisdiption of the court over, the wife, was not entitled to obligatory enforcement in the State of New York by virtue of the full faith and credit clause of the Federal Constitution. A suit for divorce brought in a State other than that of domicil of matrimony against a wife who is still domiciled therein is not a pro- ceeding in rein justifying the court to enter a decree as to the res, or marriage relation, entitled to be enforced outside of the territorial jurisdiction of the court. Questions concerning alleged fraud in contracting a marriage and laches on the part of one of the parties in bringing an action for di- vorce are matters solely of state cognizance and may not even be 514 HADDOCK V. HADDOCK allowed to indirectly influence this court in determining the Fed- eral question which is involved. The States at the time of the adoption of the Constitution possessed full power over the subject of marriage and divorce and the Consti- tution delegated no authority to the Central Government in regard thereto, and the destruction of the power of the States over the dis- solution of marriage as to their own citizens cannot be brought about by the operation of the full faith and credit clause of the Constitu- tion of the United States. Previous decisions of this court hold in regard to the full faith and credit to be given by States to the judicial decrees of other States that: The requirement is not that some, but that full, faith and credit, equal to that to which it is entitled in the State where ren- dered, shall be given to a judicial decree of another State. Harding, v. Harding, 198 U. S. 317. A personal judgment against a non-resident not a proceeding in rem based merely upon constructive service and therefore juris- diction not being acquired over the defendant's person may not be enforced in another State under the full faith and credit clause. Pennoyer v. Neff, 95 U. S. 714. All governments possess inherent power over the marriage relation, its formation and dissolution, as regards their own citizens, and where a court or legislature of a State has acted conform- ably with its own laws concerning the marriage tie as to a citizen of that State, its action is binding in that State as to that citizen, and its validity under the due process clause of the Constitution may not therein be questioned. Maynard v. Hill, 125 U. S. 190. As a corollary to the power of the State, irrespective of any extra- territorial effect, any other sovereign may, under the princi- ples of comity give to such a decree the efficacy which its own conception of duty and public policy may justify. Where a husband and wife are domiciled in a State jurisdiction ex- ists in that State, for good cause to enter a decree of divorce, entitled to enforcement in another State under the full faith and credit clause; and where a bona fide domicil has been ac- quired in a State by either husband or wife, a decree of divorce obtained by either in a court having personal jurisdiction of the other is likewise entitled to be so enforced in other States. Cheev&r v. Wilson, 9 Wall. 108. Where the domicil of a matrimony is in a particular State, and the husband abandoning the wife, wrongfully goes into another State in order to avoid his marital obligation, such other State does not become a new domicil of matrimony, nor the actual or constructive domicil of the wife. That continues in the original State until she actually acquires a new one. Barber v. Barber, 21 How. 582. Where the domicil of the husband is in a particular State, which is also the domicil of matrimony, the courts of that State may, in virtue of the wife's duty to be at the matrimonial domicil. 515 APPENDIX disregard her unjustifiable absence therefrom and treat her as having her domicil therein for the purpose of dissolving the marriage and render a judgment to that effect entitled to recognition in all other States under the full faith and credit clause of the Constitution. Atherton v. Atherton, 181 U. S. 155. THE facts, which involved the full faith and credit to be given by the courts of the State of New York to a decree of divorce, obtained in Connecticut by the husband, formerly a resident of New York, from his wife -still residing in New York, based on substituted service of the summons, are stated in the opinion. Mr. A~bram J. Rose, with whom Mr. William H. Willits and Mr. Alfred C. Pette were on the brief, for plaintiff in error. Mr. Henri/ Willis Smith, with whom Mr. William T. Tom- linson and Mr. William W. Smith were on the brief, for de- fendant in error. MR. JUSTICE WHITE delivered the opinion of the court. Opinion of the Court. The plaintiff in error will be called the husband and the de- fendant in error the wife. The wife, a resident of the State of New York, sued the hus- band in that State in 1899, and there obtained personal' service upon him. The complaint charged that the parties had been married in New York in 1868, where they both resided and where the wife continued to reside, and it was averred that the husband, immediately following the marriage, abandoned the wife, and thereafter failed to support her, and that he w r as the owner of property. A decree of separation from bed- and board and for alimony was prayed. The answer admitted the marriage, but averred that its celebration was procured by the fraud of the wife, and that immediately after the marriage the parties had separated by mutual consent. It was also alleged that during the long period between the celebration and the bringing of this action the wife had in no manner asserted her rights and was barred by her laches from doing so. Besides, the answer alleged that the husband had. in 1881, obtained in a court of the Stata of Connecticut a di- 516 II \ I >!>>( K V. I! A I H KCK \orce which was conclusive. A i the trial before a referee the judgment roll in tin- suit for divorce in Connecticut was offer- ed I iy the husband and was objected t<>. first, because the Con- necticut court had not obtained jurisdiction o\er the person of the defendant wife, as the notice of tin- pendency of the petition \\a- by publication and she had not appeared in the action; and. second, because the ground upon which the di- vorce \vas granted. \ \v... desertion by the \vife.\vasfalse. The referee MISI ained the objections and an exception was noted. The judgment roll in question \vas then marked for identiti- cation and forms a part of the record before us. Having thus excluded the proceedings in the Connect inn court, the referee found that the parties were married in Ne\v York in isr>s. that the wife was a resident of the State of New York, that after the marriage the parties never lived to- gether, and shortly thereafter that the husband without justi- fiable cause abandoned the wife, and has since neglected to provide for her. The legal conclusion was that the wife was entitled to a separation from bed and board and alimony in the sum of sTsil a year from the date of the judgment. The action of the referee was sustained by the Supreme Votirt of the State of New York, and a judgment for separation and alimony was entered in favor of the wife. This judgment was aftirmed by the Court of Appeals. As by the law of the Slate of New York, after the affirmance by the Court of Appeals, the record was remitted tj the Supreme Court, this writ of error to that court was prosecuted. The Federal question is. Did the court below violate the Constitution of the Tnited Stales by refusing to give to the decree of divorce rendered in the State of Connecticut the faith and credit to which it was entitled? As the averments concerning the alleged fraud in contract- ing the marriage and the subsequent laches of the wife are solely matters of state cognizance, we may not allow them to even indirectly influence our judgment U]M>II the Federal ques- tion to which we are confined, and we. therefore, put these subjects entirely out of view. Moreover, as. for the pm-jiov,. ,,!' the Federal issue, we are concerned not with the mere form of proceeding by which the Federal right, if any. was denied, but alone ha\e power to decide whether such right was denied, we do not inquire whether the New York court should pre- ferably have admitted the record of tfie Connecticut divorce 517 APPENDIX suit, and, after so admitting it, determine what effect it would give to it instead of excluding the record and thus refusing to give effect to the judgment. In order to decide whether the refusal of the court to admit in evidence the Connecticut decree denied to that decree the efficacy to which it was en- titled under the full faith and credit clause, we must first ex- amine the judgment roll of the Connecticut cause in- order to fix the precise circumstances under which the decree in that cause was rendered. Without going into detail, it suffices to say that on the face of the Connecticut record it appeared that the husband, alleg- ing that he had acquired a domicil in Connecticut, sued the wife in that State as a person whose residence was unknown, but whose last known place of residence was in the State of New York, at a place stated, and charged desertion by the wife and fraud on her part in procuring the marriage; and, further, it is shown that no service was made upon the wife except by publication and by mailing a copy of the petition to her at her last known place of residence in the State of New York. With the object of confining our attention to the real ques- tion arising from this condition of the^Connecticut record, we state at the outset certain legal propositions irrevocably con- cluded by previous decisions of this court, and which are re- quired to be borne in mind in analyzing the ultimate issue to be decided; First. The requirement of the Constitution is not that some. but that full, faith and credit shall be given by States to the judicial decrees of other States. That is to say, where a de- cree rendered in one State is embraced by the full faith and credit clause that constitutional provision commands that the other States shall give to the decree the force and effect to which it was entitled in the State where rendered. Harding v. Harding, 198 U. S. 317. Second. Where a personal judgment has been rendered in the courts of a State against a non-resident merely upon con- structive service, and, therefore, without acquiring jurisdic- tion over the person of the defendant, such judgment may not be enforced in another State in virtue of the full faith and credit clause. Indeed, a personal judgment so rendered is by operation of the due process clause of the Fourteenth Amend- ment void as against the non-resident, even in the State where 518 II M'lMM K V. HADDOCK rendered, and. therefore, such non-resident in virtue of rights -united by the Constitution of the United States may suc- cessfully resist even in the State where rendered, the enforce- ment of Midi a judgment. Pewnoyer v. Neff, 95 U. 8. 714. The facts in that case were these: Neff, who was a resident of a State other than Oregon, owned a tract of land in Oregon. Mitchell. ;i resident of Oregon, brought a suit in a court of tlmi Slate upon a money demand against Neff. The Oregon statutes required, iii the case of personal action against a non- resident, a jMililication of notice, calling upon the defendant to appear and defend, and also required the mailing to such defendant at liis last known place of residence of a copy of tin- summons and complaint. !']Hn affidavit of the- absence ,>l Neff, and that he resided in the State of California, the exact (dace lieinii unknown, the publication required by the statute was ordered and made, and judgment by default was entered against NYtl'. Upon this judgment execution was issued and real estate of Nefl was sold and was ultimately acquired by I 'en nover. Neff sued in the Circuit Court of the United States for i he District of Oregon to recover the property, and i he question presented was the validity in Oregon of the judgment there rendered against Neff. After the most elabo- rate consideration it was expressly decided that the judgment rendered in Oregon under the circumstances stated was void for want of jurisdiction and was repugnant to the due process clause of the Constitution of the United States. The ruling was based on the proposition that a court of one State could not acquire jurisdiction to render a personal judgment against a non-resident who did not appear by the mere publication of a summons, and that the want of power to acquire such juris- diction by publication could not be aided by the fact that under the statutes of the State in which the suit against the non-resident was brought the sending of a copy of the sum mons and complaint to the post-office address in another State of the defendant was required and complied with. The court said (p. 727) : "Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against' them. Pub- lication of process or notice within the State where the tri- bunal sits cannot create any greater obligation upon the non- to appear. I'm. ess sent to him out of the State, and 519 APPENDIX process published within it, are equally unavailing in proceed- ings to establish his personal liability." And the doctrine thus stated but expressed a general princi- ple expounded in previous decisions. Bischoff v. Wetliered, 9 Wall. 812. In that case, speaking of a money judgment re- covered in the Common Pleas of Westminister Hall, England, upon personal notice served in the city of Baltimore, Mr. Jus- tice Bradley, speaking for the court, said (p. 814) : "It is enough to say [of this proceeding] that it was wholly without jurisdiction of the person, and whatever validity it may have in England, by virtue of statute law against prop- erty of the defendant there situate, it can have no validity here, even of a -prima facie character. It is simply null." Third. The principles, however, stated in the previous proposition are controlling only as to judgments in personam and do not relate to proceedings in rem. That is to spy, in consequence of the authority which government possesses over things within its borders there is jurisdiction in a court of a State by a proceeding in rem, after the giving of reasonable opportunity to the owner to defend, to affect things within the jurisdiction of the court, even although jurisdiction is not directly acquired over the person of the owner "of the thing. Pennoyer v. Neff, supra. Fourth. The general rule stated in the second proposition is, moreover, limited by the inherent power which all govern- ments must possess over the marriage relation, its formation and dissolution, as regards their own citizens. From this exception it results that where a court of one State, con- formably to the laws of such State, or the State through its legislative department, has acted concerning the dissolution of the marriage tie, as to a citizen of that State, such action is binding in that State as to such citizen, and the validity of the judgment may not therein be questioned on the ground that the action of the State in dealing with its own citizen concerning the marriage relation was repugnant to the due process clause of the Constitution. Maynard v. Hill, 125 U. S. 190. In that case the facts were these: Maynard was married in Vermont, and the husband and wife removed to Ohio, from whence Maynard left his wife and family and went to California. Subsequently he acquired a domicil in the Territory of Washington. Being there so domiciled, an act of the legislature of the Territory was passed granting a 520 IIAHIMPCK V. II \IUK.CK divorce to the husband. .Maynard continued to reside in Washington, and then- remarried .-md died. The children of the former wife, claiming in right of their mother, sued in a roiiri of i In- Territory of Washington to recover real estaic situated in ihe Territory, and one of the issues for decision was tin- validity of tin- legislative divorce granted to the father. The statute was assailed as invalid, on the ground that Mrs. Mavnard had no notiee and that she was not a resident of t lie Territory when the act was passed. From a decree of the Supreme Court of the Territory adverse to their claim the children brought the case to this court. The power of the territorial legislature, in the alisence of restrictions in the organic act. io grant a divorce to a citi/.en of the Territory was. however, upheld, in view of the nature and extent of the authority which government possessed over the marriage rela tion. It was therefore decided that the courts of the Terri- tory committed no error in giving effect within the Territory io the divorce in question. And as a corollary of the recog- ui/ed [tower of a government thus to deal with its own cili /en by a decree which would be operative within its own borders, irrespective of any extraterritorial efficacy, it fol- lows that the right of another sovereignty exists, under prin- ciples of comity, to give to a decree so rendered such eflicacv as to that government may seem to be justified by its conception of duty and public policy. Fifth. It is no longer open to question that where husband and wife are domiciled in a State there exists jurisdiction in such State. (Or good cause, to enter a decree of divorce which will be entitled to enforcement in another State by virtue of the full faith and credit clause. It has, moreover, been de- cided that where a lunm fide domicil has been acquired in a State by either of the parties to a marriage, and a suit is brought by the domiciled party in such State for a divorce, the courts of that State, if they acquire personal jurisdiction also of the other party, have authority to enter a decree of divorce, entitled to be enforced^in every State by the full faith and credit clause. Cheevcr v. Wilson,, 9 Wall. 108. Sixth. .Where the domicil of matrimony was in a particular Slate, and the husband abandons his wife and goes into an- other State in order to avoid his marital obligations, stfth other State to which the husband has wrongfully fled doe.s not. in the nature of things become a new domicil of matri 521 APPENDIX mony, and, therefore, is not to be treated as the actual or constructive domicil of the wife; hence, the place where the wife was domiciled when so abandoned constitutes her legal domicil until a new actual domicil be by her elsewhere ac- quired. This was clearly expressed in Barber v. Barber, 21 How, 582, where it was said (p. 595) : "The general rule is, that a voluntary separation will not give to the wife a different domiciliation in law from that of her husband. But if the husband, 'as is the fact in this case, abandons their domicil and his wife, to get rid of all those conjugal obligations which the marriage relation imposes up- on him, neither giving to her the necessaries nor the comforts suitable to their condition and his fortune, and relinquishes altogether his marital control and protection, he yields up that power and authority over her which alone makes his domicil hers. ..." And the same doctrine was expressly upheld in Cheever v. Wilson, supra, where the court said (9 Wall. 123) : ''It is insisted that Cheever never resided in Indiana; that the domicil of the husband is the wife's, and that she cannot have a different one from his. The converse of the latter proposition is so well settled that it would be idle to discuss it. The rule is that she may acquire a separate domicil when- ever it is necessary or proper that she should do so. The right springs from the necessity of its exercise, and endures as long as the necessity continues." Seventh. So also it is settled that where the domicil of a husband is in a particular State, and that State is also the domicil of matrimony, the courts of such State having jurisdiction over the husband may, in virtue of the duty of the wife to be at the matrimonial domicil, disregard an unjustifiable absence therefrom, and treat the wife as hav- ing her /domicil in the State of the matrimonial domicil for the purpose of the dissolution of the marriage, and as a result have power to render a judgment dissolving the mar- riage which will 'be binding upon both parties, and will be entitled to recognition in all other States by virtue of the full faith and credit clause. Atherton v. Atherton, 181 U. S. !.->:,. Doming to apply these settled propositions to the case before us three things are beyond dispute: . In view of the au- thority which government possesses over the marriage rela- 522 II \PIM.CK V. HADDOt K i. mi ipiestinn can arise on tins record concerning the right of the State of Connecticut within its borders to give effect in i In- decree of divorce rendered in favor of the husband by the courts of Connecticut, he being at the time when the decree v\a- rendered domiciled in tliilt State. //. As Ne\\ York \v;i- the doniicil of the wife ;inl tin- doinicil of ni;it rinmny. from which the husband fled in disregard of his duty, it clearly re- fills from tin- sixth proposition ih;it the doinicil of the wife continued in New York. >-. As then there c;in lie no question that the .wife was not constructively present in Connecticut liy virnie nf .1 matrimonial doinicil in that State, and was not there individually domiciled and did not appear in the divorce cause, and was only constructively served with notice of the pendency of that action, it is apparent that the Connecticut court did not acquire jurisdiction over the wife within the lil'tli and seventh propositions; that is. did not acquire such jurisdiction by virtue of the doinicil of the wife within the State or as the result of personal service upon her within its borders. These subjects I.ein- thus eliminated, the case reduces itself in this: Whether the Connecticut court, in virtue alone of the domicil of the husband in that State, had jurisdiction to ren- der a decree against the wife under the circumstances stated, which was entitled to be enforced in other States in and by virtue of the full faith and credit clause of the Constitution. In other words, the final question, is whether to enforce in another jurisdiction the Connecticut decree would not be to enforce in one State, a personal judgment rendered in another State against a defendant over whom the court of the State rendering the judgment had not acquired jurisdiction. Other- wise stated, the question is this: Is a proceeding for divorce of such an exceptional character as not to come within the rule, limiting the authority of a State to persons within its jurisdiction, but on the contrary, because of the power which i:i>\ernment may exercise over the marriage relation, con- stitutes an exception to that rule, and is therefore embraced either within the letter or spirit of the doctrines stated in the third and fourth proposition-'.' Before reviewing the authorities relied on to establish that a divorce- proceeding is of the exceptional nature indicated. \\ e propose tirst to consider the reasons advanced to sustain the contention. In doinj: so, however, it must always be 523 APPENDIX borne in mind that it is elementary that where the full faith and credit clause of the Constitution is invoked to compel the enforcement in one State of a decree rendered in another, the- question of the jurisdiction of the court by which the decree was rendered is open to inquiry. And if there was no juris- diction, either of the subject matter or of the person of the defendant, the courts of another State are not required, by virtue of the full faith and credit clause of the Constitution, to enforce such decree. National Exchange Bank v. ~^iley } H)5 U.'S. 257, 269, and cases cited. I. The wide scope of the authority which government possesses over the contract of marriage and its dissolution is the basis upon which it is argued that the,domicil within one State of one party to the marriage gives to such a State jurisdiction to decree a dissolution of the marriage tie which will be obligatory in all the other States by force of the full faith and credit clause of the Constitution. But the deduc- tion is destructive of the premise upon which it rests. This becomes clear when it is perceived that if one government, because of its authority over its own citizens has the right to dissolve the marriage tie as to the citizen of another jurisdic- tion, it must follow that no government possesses as to its own citizens, power over the marriage relation and its dissolu- tion. For if it be that one government in virtue of its author- ity over marriage may dissolve the tie as to citizens of an- other government, other governments would have a similar power, and hence the right of every government as to its own citizens might be rendered nugatory by the exercise of the pow- er which every other government possessed. To concretely il- lustrate : If the fact be that where persons are married in the State of New York either of the parties to the marriage may, in violation of the marital obligations, desert the other and go into the State of Connecticut, there acquiring a domicil, and procure a dissolution of the marriage which would be binding iii the State of New York as to the party to the marriage there domiciled, it would follow that the power of the State of New- York as to the dissolution of the marriage as to its domiciled citizen would be of no practical avail. And conversely the like result would follow if the marriage had been celebrated in Connecticut and desertion had been from that State to New York, and consequently the decree of divorce had been ren- dered in New 'York. Even a superficial analysis will make 524 IIA1MMM K V. HADDOCK iliis clear. Under the rule contended for ii would follow that the States whose laws were the most lax as to length of resi- dence required for domicil. as to causes for divorce and of speed of procedure concerning divorce, would in effect domi- nate all the other States. In other words, any person who wa- married in one State and who wished to violate the marital obligations would be able, by following the lines of least re- sistence. to go into the State whose laws were the most lax. and there avail of them for the purpose of the severance of the marriage tie and the destruction of the rights of the other party to the marriage contract, to the overthrow of the laws and. public policy of the other States. Thus the argument comes necessarily to this, that to preserve the lawful author- ity of all the States over marriage it is essential to decide that all the States have such authority only at the sufferance of the other States. And the considerations just stated serve to dispose of the argument that the contention relied on finds support in the ruling made in Maynard v. Hill, referred to in the fourth proposition, which was at the outset stated. For in that case the sole question was the effect within the Terri- tory of Washington of a legislative divorce granted in the Territory to a citizen thereof. The upholding of the divorce within the Territory was, therefore, but a recognition of the power of the territorial government, in virtue of its authority over marriage, to deal with a person domiciled within its jurisdiction. The case, therefore, did not concern the extra- territorial efficacy of the legislative divorce. In other words, whilst the ruling recognized the ample powers which govern- ment possesses over marriage as to one within its jurisdiction, it did not purport to hold that such ample powers might be exercised and enforced by virtue of the Constitution of the United States in another jurisdiction as to citizens of other States 10 whom the jurisdiction of the Territory did not ex- tend. The anomalous result which it is therefore apparent would arise from maintaining the proposition contended for is made more manifest by considering the instrument from which such result would be produced, that is, the full faith and credit clause of the Constitution. No one denies that the States, at the time of the adaption of the Constitution, possessed full power over the subject of marriage and divorce. No one, moreover, can deny that, prior to the adoption of the Con- 525 APPENDIX stitution, the extent to which the States would recognize a divorce obtained in a foreign jurisdiction depended upon their conceptions of duty and comity. Besides, it must be conceded that the Constitution delegated no authority to the Govern- ment of the United States on the subject of marriage and divorce. Yet, if the proposition be maintained, it would fol- low that the destruction of the power of the States over the dissolution of marriage, as to their own citizens, would be brought about by the operation of the full faith and credit clause of the Constitution. That is to say, it would come to pass that, although the Constitution of the United States does not interfere with the authority of the States over marriage, nevertheless the full faith and credit clause of that instru- ment destroyed the authority of the States over the marriage relation. And as the Government of the United States has no delegated authority on the subject, that Government would be powerless to prevent the evil thus brought about by the full faith and credit clause. Thus neither the States nor the National Government would be able to exert that authority over the marriage tie possessed by every other civilized gov- ernment. Yet more remarkable would be such result when it is borne in mind that, when the Constitution was adopted, nowhere, either in the mother country or on the continent of Europe, either in adjudged cases or in the treatises of au- thoratative writers, had the theory ever been upheld or been taught or even suggested that one government, solely because of the domicil within its borders of one of the parties to a mar- riage, had authority, without the actual or constructive pres- ence of the other, to exert its authority by a dissolution of the marriage tie, which exertion of power it would be the duty of other States to respect as to those subject to their jurisdic- tion. II. It is urged that the suit for divorce was a proceeding in rem, and, therefore, the Connecticut court had complete jurisdiction to enter a decree as to the res, entitled to be enforced in the State of New York. But here again the argu- ment is contradictory. It rests upon the theory that juris- diction in Connecticut depended upon the domicil of the person there suing and yet attributes to the decree resting upon the domicil of one of the parties alone a force and effect based upon the theory that a thing within the jurisdiction of Connecticut was the subject matter of the controversy. But 526 HADDOCK V. HADDOCK putting this contradiction aside, what, may we ask, was the res in Connecticut? < Vrtninly ii cannot in reason be said that it was the cause of action or the mere presence of the person of the plaintiff within the jurisdiction. The only possible theory thpu upon which the proposition proceeds must be that the res in Connecticut, from which the jurisdiction is assumed to have arisen, was the marriage relation. But as the marriage was celebrated in New York between citizens of that State, it must be admitted, undej: the hypothesis stated, that before the husband deserted the wife in New York, the res was in New York and not in Connecticut. A's the husband, after wrongfully abandoning the wife in New York, never established a matrimonial domicil in Connecticut, it cannot be said that he took with him the iiuiiial relation from which he fled to Connecticut. Conceding, however, that lie took with him to Connecticut so much of the marital rela- tion as concerned his individual status, it cannot in reason be said that he did not leave in New York so much of the relation as pertained to the status of the wife. From any point of view, then, under the proposition referred to, ' if the marriage relation be treated as the res, it follows that it was divisible, and therefore there was a res in the State of New York and one in the State of Connecticut. Thus considered, it is clear that the power of one State did not extend to affect- ing the thing situated in another State. As illustrating this conception, we notice the case of Mississippi & Missouri R. R. Co. v. Ward, 2 Black, 485. The facts in that case were these : A bill was filed in a District Court of the United States for the District of Iowa to abate a nuisance alleged to have been occasioned by a bridge across the Mississippi river dividing the States of Illinois and Iowa. Under the assump- tion that the nuisance was occasioned by the operation of the bridge on the Illinois side, the court, after pointing out that the United States Circuit Court for the District of Iowa exer- cised the same jurisdiction that a state court of Iowa could exercise and no more, said (p. 494) : "The District Court had no power over the local object inflicting the injury; nor any jurisdiction to inquire of the facts, whether damage had been sustained, or how much. These facts are beyond the court's jurisdiction and powM-> of inquiry, and outside of the case." Nor has the conclusive force of the view which we h;m 527 APPENDIX stated been met by the suggestion that the res was indivisible, and therefore was wholly in Connecticut and wholly in New York, for this amounts but to saying that the same thing can be at one and the same time in different places. Further, the reasoning above expressed disposes of the contentign that, as the suit in Connecticut involved the status of the husband, therefore the courts of tha,t State had the power to deter- mine the status of the non-resident wife by a decree which had obligatory force outside of the State of Connecticut. Here, again, the argument comes to this, that, because the State of Connecticut had jurisdiction to fix the status of one domiciled Avithin its borders, that State also had the authority to oust the State of New York of the power to fix the status of a person who was undeniably subject to the jurisdiction of that tate. III. It is urged that whilst marriage is in one aspect a con- tract, it is nevertheless a contract in which society is deeply interested and, therefore, government must have the power to determine Avhether a marriage exists or to dissolve it, and hence* the Connecticut court had jurisdiction of the relation and the right to dissolve it, not only as to its own -citizen but as to a citizen of New York who was not subject to the juris- diction of the State of Connecticut. The proposition involves in another form of statement the non sequitur which we have previously pointed out; that is, that, because government possesses power over marriage, therefore the existence of that I tower must be rendered unavailing. Nor is the contention aided by the proposition that because it is impossible to conceive of the dissolution of the marriage as to one of the parties in one jurisdiction without at the same time saying that the/ marriage is dissolved as to both in every other jurisdiction, therefore the Connecticut decree should have obligatory effect in New York as to the citizen of that State. For, again, by a change of form of statement, the same contention which we have 'disposed of is reiterated. Be- sides, the proposition presupposes that, because in the exer- cise of its power over its own citizens, a State may determine to dissolve the marriage tie by a decree which is efficacious within its borders, therefore such decree is in all cases bind- ing in every other jurisdiction. As we have pointed out at the outset, it does not follow that a State may not exert its power as to one within its jurisdiction simply because such 528 H.MH.orK V. 1IA1UHM K exercise of authority m;iy nut be extended beyond its border- inin the jurisdiction and authority of another State. The distinction was dearly pointed out in Bla<.-kintt,n \. Hludciii- ton, 141 Massachusetts, 432. In that case the parties wen married and li\ed in Massachusetts. The husband abandoned the wilV without cause and became domiciled in New York. The wife remained at the matrimonial domicil in .Ma-a chusetts and instituted a proceeding to prohibit her husband from imposing any restraint upon'her personal liberty and for separate maintenance. Service was made upon the husband in New York. The court, recognizing fully that under the circum- -tances disclosed the domicil of the husband was not the domi- cil of the wife, concluded that, under the statutes of Ma>-:i chusetts, it had authority to grant the relief prayed, and was then brought to determine whether the decree ought to be made, iu view of 'the fact that such decree might not have ex- traterritorial force. But this circumstance was held not to be controlling and the decree was awarded. The same doc- trine was dearly expounded by the Privy Council, in an opin- ion delivered by Lord Watson, in the divorve case of Le Mesurier v. Le Mesurier (1895), A. C. 517, where it was said ' (p. 527) : "When the jurisdiction of the court is exercised according to the rules of international law, as in the case where the parties have their domicil within its forum, its decree dis solving their marriage ought to be respected by the tribunals of every civilized country. . . . On the other hand, a decree of divorce a vinculo, pronounced by p court whose jurisdic- tion is solely derived from some rule of municipal law peculiar to its forum, cannot, when it trenches upon the inter- ests of any other country to whose tribunals the spouses were amenable, claim extraterritorial authority." IV. The contention that if th epower of one State to decree a dissolution of a marriage which would be compulsory upon the other States be limited to cases where both parties are subject to the jurisdiction, the right to obtain a divorce could be so hampered and restricted as to be in effect impossible of exercise, is but to insist that in order to favor the dissolu- tion of marriage and to cause its permanency to depend upon the mere caprice or wrong of the parties, there should not be applied to the right to obtain a divorce those funda- mental principles which safeguard the exercise of the simplest 529 APPENDIX rights. Iii other words, the argument but reproduces the fallacy already exposed, which is, that one State must be en- dowed with the attribute of destroying the authority of all the others concerning the dissolution of marriage in order to render such dissolution easy of procurement. But even if the true and controlling principles be for a moment put aside and mere considerations of inconvenience be looked at, it would follow that the preponderance of inconvenience would be against the contention that a State should have the power to exert its authority concerning the dissolution of marriage as to those not amenable to its jurisdiction. By the application of that rule each State is given the power of overshadowing the authority of all the other States, thus causing the mar- riage tie to be less protected than any other civil obligation, and this to be accomplished by destroying individual rights without a hearing and by tribunals having no jurisdiction. Further, the admission that jurisdiction in the courts of one State over one party alone was the test of the right to dis- solve the marriage tie as to the other party although domiciled in another State, would at once render such test impossible of general application. In other words, the test, if admitted, would destroy itself. This follows, since if that test were the rule, each party to the marriage in one State would have a right to acquire a domicil in a different State and there in- stitute proceedings for divorce. It would hence necessarily arise that domicil would be no longer the determinative cri- terion, but the mere race of diligence between the parties in seeking different forums in other States or the celerity by which in such States judgments of divorce might be procured would have to be considered in order to decide which forum was controlling. On the other hand, the denial of the power to enforce in another State a decree of divorce rendered against a person who was not subject to the jurisdiction of the State in which the decree was rendered obviates all the contradictions and inconveniences which are above indicated. It leaves uncur- tailed the legitimate power of all the States over a subject peculiarly within their authority, and thus not only enables them to maintain their public policy but also to protect the individual rights of their citizens. It does not deprive a State of the power to render a decree of divorce susceptible of being enforced within its borders as to the person within the juris- 530 HAIUKM'K V. HAMHM'K diction ami ; Hell v. Bell, 181 U. 8. 175. This brings us to again considei- a case heretofore referred to. principally 'relied upon as sustaining the contention that the doinicil of one party alone is sufficient to confer jurisdiction upon a judicial tribunal to render a decree of divorce having extra territorial effect, vi/... Athrrtnn, v. Atherton, 181 U. S. !">. The decision in that c;ise. howe\er, as we have previous! v .said, was expressly placed upon the ground of matrimonial doinicil. This is apparent' from the following passage, which we excerpt from the opinion, at page 171: This case does not involve the validity of a divorce granted, on constructive service, by the court of a State in which only one of the parties ever had a domicil ; nor the question to what extent the good faith of the domicil may be afterwards in i|uired into. In this case the divorce in Kentucky was by the court of'the State which had always been the undoubted doinicil of the husband, and which was the only matrimonial domicil of the husband and wife. The single question to lie decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky." The contention, therefore, that the reasoning of the opinion demonstrates that the domicil of one of the parties alone was contemplated a:s being sullicient to found jurisdiction, but in- sists that the case decided a proposition which was excluded in unmistakable language. But. moreover, it is clear, when the facts which \\ere involved in the Athrrtnn case are taken into view, that the case could not have been decided merely Upon the ground of the domicil of one of the parties, because that consideration alone would have afforded no. solution of the problem which the c:ise presented. The salient fact* were these: The husband lived in Kentucky, married a citizen of New York, and the married couple took up their domicil at 583 APPENDIX the home of the husband in Kentucky, where they continued to reside and where children were born to them. The wife left the matrimonial domicil and went to New York. The husband sued her in Kentucky for a divorce. Before the Kentucky suit merged into a decree the wife, having a resi- dence in New York sufficient, under ordinary circumstances, to constitute a domicil in that State, sued the husband in the courts of New York for a limited divorce. Thus the two suits, one by the husband against the wife and the other by the wife against the husband, were pending in the respective States at the same time. The husband obtained a decree in the Ken- tucky suit before the suit of the wife had been determined and pleaded such decree in the suit brought by the wife in New 1 York. The New York court, however, refused to recognize the Kentucky decree and the case came here, and this court decided that the courts of New York were bound to give effect to the Kentucky decree by virtue of the full faith and credit clause. Under these conditions it is clear that the case could not have been disposed of on the mere ground of thje individ- ual domicil of the parties, since upon that hypothesis, even if the efficacy of the individual domicil had been admitted, no solution would have been thereby afforded of the problem which would have arisen for decision, that problem being which of the two courts wherein the conflicting proceedings were pending had the paramount right to enter a binding decree. Having disposed of the case upon the principle of matrimonial domicil, it cannot in reason be conceived that the court intended to express an opinion upon the soundness of the theory of individual and separate domicil which, iso- latedly considered, was inadequate to dispose of, and was, therefore, irrelevant to, the question for decision. It is contended that an overwhelming preponderance of the decisions of state courts enforce the doctrine that it is the duty of the States, by virtue of the full faith and credit clause, to give within their borders the full effect required by that clause to decrees of divorce rendered in other States, where there was jurisdiction alone by virtue of the domicil of one of the parties. Whilst we may not avoid the duty of interpreting for ourselves the Constitution of the United States, in view of the persuasive force that would result if an overwhelming line of state decisions held the asserted doctrine, we come to consider that subject. To examine in detail the many deci- 534 1 1. \MHM-K \. iiAiixVK sions of state courts of hist resort, most of which are referred to in tin- m.-ii-Liiii. would expand tins opinion lo undue length. To avoid M. dojn;. 1C possilde, we propose to more particularly direct our attention to tin* cases in state courts which are specially relied on. In doing so \vc shall add case> in several of the States not particularly counted on in the argument. We shall do this for the purpose of evolving, if possible, from i lie Mate cases thus to be referred to, some classification typical of all the state decisions, hence enabling all the cases to which we do not specially refer to be brought within the appropriate class to which they pertain, without the necessity of reviewing them in detail. We shall not confine ourselves to the particularstate decisions relied on, but shall conside, such decisions in the light of the general rule obtaining in the particular State. The cases specially relied on are Thompson v, State, 28 Ala Uama. 12; Hardi)uj v. I/'/'//. ! .Maine, 140; Ditson v. Ditsoii. 4 K. I. S7; liurlcn v. Shannon. 115 Massachusetts, 438; and FHt v. Felt, 59 N. J. Eq. 606, to which we shall add for the 'Cases relating to the validity and extraterritorial effect of a decree of divorce rendered upon constructive notice: Turner v. Turner, 44 Alabama, 437 ; In re James Estate, 99 California, 374; Knowlton v. KnowUon, 155 Illinois, 158; Dunham v. Dunham. 162 Illinois, 589; Field v^ Field, 215 Illinois, 496; Hood v. State, 56 Indiana, 263, 270; Hilbish v. Hattle, 145 Indiana, 59; Kline v. Kline, 57 Iowa, 386; Van Orsdal v. Van Orsdal, 67 Iowa, 35; Chapman v. Chapman, 48 Kan- sas, 636; Rodgers v. Rodgers, 56 Kansas, 483; Maguire v. Maguire, 1 Dana, 181; Hawkins v. Ragsdale, 80 Kentucky, 353; Edwards v. Green, 9 La. Ann. 317 ; Smith v. Smith, 43 La. Ann. 1140 ; Butler v. Washington, 45 La. Ann. 279; Harding v. Alden, 9 Maine, 140; Stilphen v. Stilphen, 58 Maine, 508 ; Stilphen v. Hondlette, 60 Maine, 447 ; Garner v. Garner, 56 Maryland, 127; Lyon v. Lyon, 2 Gray, 367; Wright v. Wright 24 Michigan 180; Van Inwagen v. Van Inwagen 86 Michigan, 333; Thurs- ton v. Thurston, 58 Minnesota, 279; Gould v. Crow, 57 Missouri, 200; Anthony v. Rice, 110 Missouri, 223; Smith v. Smith, 19 Nebraska, 706; Leith v. Leith, 39 N. H. 20; Doughty v. Doughty, 28 N. J. Eq. 581; Flower v. Flower, 42 N. J. Eq. 152; Felt v. Felt, 59 N. J. Eq. 606; Wal- lace v. Wallace, 62 N. J. Eq. 509; Lynde v. Lynde, 162 N. Y. 405; Win- ston v.. Winston, 165 N. Y. 653; Irby v. Wilson, 1 Dev. & Dat. Eq. 21 N. Car. 568; flarrt* v. Harris, 115 N. Car. 587; Bidwcll v. Bidwell, 139 N. Car. 402, 52 S. E. Rep. 55, 58; Cox v. Cox, 19 Ohio St. 502; Doerr v. For- si/the, 50 Ohio St. 726; Colvin v. Reed, 55 Pa. St 375; Reel v. Elder, 62 Pa. St. 308; Ditson v. Ditson, 4 R. I. 87; McCreery v. Davis, 44 S. Car. 195; Thorns v. King, 95 Tennessee, 60; Prosser v. Warner, 47 Vermont, 667, 673; Cook v. Cook, 56 Wisconsin, 195. 535 APPENDIX purposes above stated cases on the same subject decided in New York, Ohio, Wisconsin, Indiana and Missouri. NEW YORK. It is not questioned that the courts of New York are vested by statute with authority to render decrees of divorce where the plaintiff is domiciled within the State, which shall be operative in that State, even although the de- fendant is a non-resident and is proceeded against by con- structive service. Borden v. Fitch, 15 Johns, 121, and Bradshaw v. Heath, 13 Wend. 407, were decided, respectively, in the years 1818 and 1835. These cases, as declared by the Court of Appeals of New York in People v. Baker, 76 N. Y. 78, 82, upheld the prin- ciple that a court of another State could jtot dissolve the matrimonial relation of a citizen of New York, domiciled in New York, unless lie was actually served with notice within the other State or voluntarily appeared in the cause. The doctrine that a'n action of divorce is one inter paries was thus clearly reiterated by Andrews, J., in Jones v. Jones, 108 N. Y. 415, 424: "The contract of marriage cannot be annulled by judicial sanction any. more than any other contract inter paries,, with- out jurisdiction of the person of the defendant. The marriage relation is not a res within the State "of the party invoking the jurisdiction of a court to dissolve it, so as to authorize the court to bind the absent party, a citizen of another jurisdic- tion, by substituted service or actual notice of the proceeding given without the jurisdiction of the court where the proceed- ing is pending/' That the principle referred to is still enforced by the New York court is shown by recent cases, viz., Lynde v. Lynde, 162 N. Y. 405; Winston v. Winston, 165 N. Y. 553, and the case at bar. And it is indubitable that under this, doctrine the courts of New York have invariably refused, as they have done in the case at bar, to treat a divorce rendered in another State, under the circumstances stated, as entitled to be en- forced in New York by virtue of the full faith and credit clause of the Constitution of the United States; and, indeed, have refused generally to give effect to such decrees even by state comity. MASSACHUSETTS. Bat-far v. Root, 10 Massachusetts 260; llannrn- \. Turner, 14 Massachusetts, 227, and Harteau v. Hai-teau, 14 Pick. 181, were decided, respectively, in 1813, 536 IIAl.lH.CK V. IIAIUMM-K 1S17 and is:',:!. In ls:;.~, the legislature of Massachusetts in mrpnrated jinn the statutes of tliat Stale, following a section forbidding the reci. gniiion of divorces obtained in another jurisdiction in fraud of the Jaws of Massachusetts. ;i provision reading as follows: "In all other cases, a divorce decreed in another State or country, according to the law of the place. b\ a court having jurisdiction of the cause and of hotli of the parties, shall he valid and effectual in this Stale." And it may he ohserved that this section, when suhinitted to the legislature hy the commissioners for revising the .Massachn setts statutes, was acconi]anieH general principles of law. that a decree of divorce rendered in another State without jurisdiction of both of the parties possessed no extraterritorial force. In I/iirnl v. ffoinl ilS;r>i. 11 Allen. 1!M', the controversy was this: The parties were married in Massachusetts ami. after a residence in that State, moved together to Illinois. The wife left the domicil of the husband in Illinois and returned to Massachusetts. Thereafter, in Illinois, the husband sued the wife for a divorce on the ground of her desertion, obtained a decree, and married again. The case decided in Massachu- setts was a suit brought in that State by the former wife against the former husband fo'r divorce on the ground of adultery alleged in have been ciunmilted by him with the pel- son whom he had married after the decree of divorce in Illinois had been rendered. The Illinois decree was pleaded in bar. The question whethej- the Illinois decree should be given extraterritorial effect in Massachusetts depended, under the rule announced in the previous cases, upon whether both the husband and wife were parlies in the Illinois decree. For ihe purpose ,,1 the determination of this jurisdict ional qiies 537 APPENDIX i tion it was held that it was necessary to ascertain whether the wife was justified, by the fault of the husband, in leaving him in Illinois and going back to Massachusetts. It was de- cided that if she was justified in leaving the husband, her legal domicil was in Massachusetts, and she was not a party to the Illinois decree, and that if she was not justified in living separate from the husband, the ordinary rule being that the domicil of the husband was the domicil of the wife, she was domiciled in Illinois, and must be considered as subject to the jurisdiction of the Illinois court. Applying this legal principle to the facts in the case before it, the court held that as there was no evidence showing that the wife had justifiable cause 'for leaving her husband, the legal presumption that the domicil of the husband was the domicil of the wife prevailed, and that the Illinois decree was entitled to extraterritorial effect in Massachusetts, and bound the wife, because rendered by a court having jurisdiction over both parties. In Shaw v..Sha>w (1867), 98 Massachusetts, 158, the facts were these: The parties were married in Massachusetts, lived there and left together for the purpose of settling in Colorado. On the journey, at Philadelphia, the wife was forced by the extreme cruelty of the husband to leave him. She returned to Massachusetts, while he went on to Colorado. Subsequent- ly the wife sued in Massachusetts for a divorce from bed and board. The husband was brought in by substituted service and defaulted. The court, in the most explicit terms, recog- nized that a decree of divorce to have extraterritorial effect must be rendered with jurisdiction over both parties. It said (p. 159) : "For the purposes of divorce the general rule of jurisprudence is that a divorce granted in the place of the domicil of both parties, and there valid, is good everywhere." The court came then to consider whether it could render a decree in Massachusetts in favor of the wife. This depended upon a statute of Massachusetts, which authorized the grant- ing of a divorce where the cause for divorce occurred while the parties had lived together as husband and wife is Massa- chusetts, and where one of them lived in that State when the cause for divorce occurred. It was held that as at the time- of the commission of the cruelty in Philadelphia charged against the husband the domicil of the parties in Massachu- setts had not been lost, and as by that cruelty the wife was justified in returning to Massachusetts, and the subsequent ac- 538 II \HH.M-K V. lf.UIK)CK |uisiti()ii lil nol make Mich domicil ih.-ii of the wife, there was jurisdiction. and the divorce was jji-anu-d. Hood v. Hood (1872), 110 Massachusetts. It;:;. was :m at- tempt again to assail the validity of the Illinois decree "I divorce which had been adjudged valid in 11 Alien, 11MJ. In- cause it was found that both the husband and wife had been parties to the decree. The Massachusetts decree so holding was then-lore held to be reft judicata as to all persons and io foreclose furtlicr impiiry into the validity of the Illinois decree of divorce. In Burlrii v. shannon (1871 i. 11. "i .Massachusetts, 438, the fact- leading up to the controversy and those involved therein were as follows: Shannon and his wife lived together in Massachusetts, where she left him. Without stopping to refer to prior legal controversies which arose between Shannon and his wife and between Shannon and Mrs. Burlen. which are irrelevant to lie considered, it suffices to say that Mrs. Burlen sued Shannon in 1850 to hold him liable for necessary sup- plies furnished to the wife. Shannon resisted on the ground that the wife had been living apart from him without his fault or consent, and this defense was maintained. (3 Gray, 387.) Shannon went to Indiana in IS.V. and took up his doinicil in that State, where, in 1856, he obtained a decree of divorce upon constructive service. Subsequently, in Massa chusetts. Mrs. Burlen again sued Shannon for necessaries furnished to the wife between February !, 1860, and Febru- ary 7. ls<;<;. He pleaded the Indiana divorce, and the \alidiiy of tin* divorce was assailed by Mrs. Burlen on the ground that the wife, had not been a party to the divorce cause, and there- fore the Indiana decree had not extraterritorial effect in M.ISS..I, husei ts. The court, in effect, after reiterating the pre- vious rulings and referring to the statute concerning the ne- cexity for the presence of both parties within the jurisdic- tion where .a decree for divorce of another State was sought to be given effect in Massachusetts, also reiterated the previ- ous ruling that the wife might acquire a separate doinicil from the husband if she lived separate from him for just i li- able cause. The court was brought, therefore, t.. consider whether Mr. and Mrs. Shannon were both parties to the Indi- ana deem- 'ii the ground that the doinicil of the husband was the doinicil \' the wife. The solution of this question depend- 539 APPENDIX ed, as it had depended in Hood v. Hood, 11 Allen, 196, upon whether the wife was absent from the husband because of his fault. On this subject it was decided that the previous judg- , ment in favor of Shannon and against Mrs. Burlen in the prior action between the parties had conclusively determined between them that Mrs. Shannon was absent from her hus- band without his fault or consent, and, therefore under the legal presumption that the domicil of the husband was the domicil of the wife, both the husband and wife were parties to the Indiana decree and it was not subject to attack in Massachusetts. To cite, as has sometimes been done, the language of the opinion of the court referring to the previous judgment in the earlier action between Mrs. Burlen and Shan- non as if that language referred to the Indiana decree of di- vorce, leading to the implication that that decree was held to be conclusive, even if only one of the parties was domiciled in the State where the decree was rendered, not only is a plain misconception, but is equivalent to asserting that the Massachusetts court had overruled its previous decisions and disregarded the spirit, if not the letter, of the state statute without the slightest intimation to that effect. In Cummington v. Belchertoioii, 149 Massachusetts, 223, The facts were these: The parties to a marriage, celebrated in Massachusetts, lived together in that State until the wife was taken to a Massachusetts asylum for the insane, when the husband abandoned her, acquired a domicil in New York, there brought suit on the ground of fraud for the annulment of the marriage, and obtained a decree. The wife was only constructively served with process, did not appear, and Avas not represented. The Massachusetts court held, upon the authority of the Blackington case (141 Massachusetts, 432), to which we .have already referred, that if the decree was to be recognized in Massachusetts, it could only be on grounds of comity. And in concluding its opinion the court said: 'Upon the ground, then, that the decree of the New York court attempts to annul a marriage in Massachusetts between Massachusetts citizens, and thus affect the legal status of the woman, who has remained domiciled in Massachusetts, and has never been within the jurisdiction of the New York court, and deprive her of the rights acquired by her marriage, and especially because it declares the marriage void for a j-eason 540 HADDOCK V. HADDOCK in account of which ly the Massachusetts law it cannot be molded, we are of opinion tli;it it should not be enforced here, ;ms would be entitled to the benefit of the full faith and credit clause of the Constitution and have binding efficacy in every other State. NEW JERSEY. Whilst the courts of New Jersey have exer- cised the power to grant a divorce from a non-resident de- fendant, upon constructive service, those courts have from the beginning applied to similar decrees of divorce granted in other States, when sought to be enforced in New Jersey against citizens of that State, a rule like the one prevailing in New York, that is, they decline to enforce them even upon the principles of c6mity. Doughty v. Doughty, 28 N. J. Eq. 581, 586; -Flower v. Flower, 42 N r J. Eq. 152. Recently, how- ever, it has been decided, Felt v. Felt, 59 N, J. Eq. 606, that where a decree of divorce was rendered in another State, and the complainant alone was subject to the jurisdiction of the court, but it was shown that the defendant had been person- ally served outside of the jurisdiction with notice of the pend- ency of the divorce proceeding and was afforded reasonable opportunity to make defense and did not avail of the oppor- tunity, effect would be given to such decree in New Jersey, upon principles of ,comity, provided that the ground upon which the decree rested was one which the public policy of New Jersey recognized as a sufficient cause for divorce. In Wallace v. Wallace,, 62 N. J. Eq. 509, the subject is quite fully reviewed. OHIO. In Cooper \. Cooper (1836), 7 Ohio, 594, without citation of authority, a divorce granted in Indiana, from a resident of Ohio; upon constructive service, was held to bar an application for divorce and alimony in Ohio. In Mansfield v. Mclntyre (1840), 10 Ohio, 27, despite a divorce obtained in Kentucky, by a hus'band, upon constructive service, the divorced wife was regarded in Ohio as the widow of her for- mer husband after his decease, and as such widow entitled to dower. In Cox v. Cox, 19 Ohio St. 502, decided at the December term, 1869, the facts were these: The husband deserted the wife in Ohio, went to Indiana and there obtained a divorce, upon constructive service. The wife remained in Ohio, and three years after the granting of the Indiana divorce to the husband she sued him for divorce and for alimony, alleging abandonment and gross neglect of duty. The trial court granted a divorce and alimony. The husband appealed, but 544 II.U.IMK-K v. as such an appeal, under the statutes of Ohio, did not affect the decree as to the divorce, the District Court consi.l only the question of alimony and rendered a new decree for alimony against the defendant. The case was then taken to the Supreme Court of the State. In that court attention was tailed to the fact that under the statutes of Ohio ami the de- cisions of its coin-is jurisdiction might be exercised over non- n-M'deiits in divorce cases, and reference was made to various authorities as tending to show that public policy required the recognition of the validity of such decrees in other States as to the dissolution of the marriage. After stating the facts. ami observing that the wife was entitled under the law- <" Ohio to either divorce or alimony, or both, at her election, and alluding to the Indiana decree, the court said (p. .'ili'i . "The question, therefore, is, whether the <./ /*//// r decree can be made available, not merely to effect a dissolution of the marriage, but to defeat tbo right of the petitioner to the ali- mony which the statute, upon the facts as they exist in regard to the husband's desertion, intended to provide for her. "We think the decree ought not to have such effect. "In arriving at this conclusion we make no distinction be tween a decree rendered, under the circumstances of this case. in a foreign, and one rendered in a domestic forum. ''In either case, to give a decree thus obtained the effect claimed for it. would be to allow it to work a fraud upon the pecuniary rights of the wife. Such a result, in our opinion, is rendered necessary by no principle of comity or public policy the only grounds upon which c.r /xirtr decrees of di- vorce are aut hori/.ed and supported. "It is not essential to the allowance of alimony that the marriage relation should subsist up to the time it is allowed. <>n appeal, alimony may be decreed by the District Court, notwiihstanding the subsisting divorce pronounced by the Court of Common IMeas. It is true that the statute speaks of the allowance as being made to the wife. But the term *wife' may be regarded as used to designate the person, and not the actual existing relation; or the pel it loner may still be regarded as holding the relation of wife for the purpose of enforcing her claim to alimony." The following cases were cited by the court as sustaining the right of the wife to maintain an inde]>endent proceeding for alimony, even after the husband had obtained a divorce: 645 APPENDIX N v. Wilson, 8 Yerger, 67; Crane v. Mey'innis, 1 Gill & J. 463, and Shot^ell v. Shotwell, 1 Sm. & M. Ch. R, 51. In Doerr v. Foray the (1803), 50 Ohio St. 726, an Indiana divorce granted to a husband, upon constructive service, was held not to bar the right of the wife to dower in lands in Ohio owned during coverture by the husband. ALABAMA. In Thompson v. State (1856), 28 Alabama, 12 the facts were these: Thompson deserted his family in Miss- issippi, went to Arkansas and there obtained a divorce upon constructive service. The wife returned to her father's home in Alabama, and, after the divorce, the husband also went to Alabama, where he again married. He was prosecuted for and convicted of bigamy. The conviction was set aside, how- ever, upon the ground that the guilt or innocence of the ac- cused depended upon the question as to whether he had a bona fide domicil in Arkansas during the pendency of the pro- ceedings for divorce. Harding v. Alden, 9 Maine, 140, was cited as authority. In a subsequent case, however, Turner v. Turner (1870), 44 Alabama, 437, the Supreme Court of Alabama strictly lim- ited, as against a citizen of Alabama, the effect of a divorce rendered in another State upon constructive service. The parties were married in Alabama, where the husband deserted the wife, and located in Indiana, where he obtained a divorce upon constructive service. The wife remained in Alabama, and, after the granting of the divorce to the husband, she sued him in Alabama for a divorce and alimony. The husband pleaded the Indiana decree in bar. The trial court, however, held that the wife was entitled to maintain her suit and en- tered a decree for divorce and alimony. In affirming the de- cree the Supreme Court of Alabama, upon the authority of Tlioiiiftxon v. State, supra, said that the decree of divorce ob- tained by the husband in Indiana might protect him against prosecution for bigamy should he marry again in Alabama. Kef erring to that decree it further said (p. 450) : "But without stopping to inquire whether it was obtained by him by fraud, and therefore is vicious on that account or not, it certainly cannot affect the rights of the complainant, except her right in the husband as husband. If it is valid, it unmarries him and sets him free from his marital vows to her. He is no longer the complainant's husband. But it does not settle her right to alimony; it does not settle her 546 HADDOCK V. HADDOCK right to dower in his lands, and her statutory right to di> intuition of his property in this State, in the event she should Mirvive him, nor any other interest of a pecuniary .character she iimy have against him. . . . It is the duty of the State 10 protect its o\vn citizens, within its own borders. This is the natural compensation for allegiance. This high duty e\ lends to all the pecuniary rights of the citizens, as well as to the rights of security of IMM-SOU. . . . No obligation of comity is paramount to this duty. Without a constant ami effective exertion of it, citizenship would become a farce. . . . The^wife is as much the citixen of the State as the husband, ami is entitled to the protection of its laws to the same extent, so long as she remains within its jurisdiction. 1 1 would be a scandal to justice to imperil her. and sacrifice her must important and cherished rights upon a mere techni- cality; a technicality that often contradicts the truth. When her protection requires it. it would be cruelly unjust for the State, of her actual residence and domicil, to repudiate its own right of jurisdiction to give her aid. \ therefore think that the better opinion is. that she has the right to file her bill here, and to all the relief that the court could give her. notwithstanding her husband might not be domiciled in this State at the commencement and during the whole pendency of her litigation with him. . . . "Then, if the state courts have competent jurisdiction in such a case, as undoubtedly they have, they may go on and exercise that jurisdiction in the manner and to the extent prescribed by their own laws. 'ruder the laws of this State, by the contract and con- summation of a marriage, the wife, if she has no separate es- tate, becomes entitled to dower in the-hushand's lands, ami a certain distributive interest in his personal estate, if sin- survives him, and to temporary and permanent alimony out of his estate upon a separation by divorce in her favor. These are rights that she cannot legally be deprived of without her consent or her fault. ... If this were not so. then these important statutory provisions in favor of the wife would be repealed or rendered null by a foreign divorce, of which she had no notice and no knowledge, during its whole progress through the forms of a foreign court. To sue in her own dom- icil is necessary for the protection of the wife. It, therefore, overrides the technical rule that the husband's domicil is also 547 the domicil of the wife. . . . Here the testimony shows that the wife has no separate estate. The witnesses for the defendants say when she was married she 'brought nothing with her.' It also appears that during her connection with the defendant Matthew Turner, as his wife, she was a chaste, industrious, economical, faithful, useful and obedient wife; and that the husband's property is very considerable; worth possibly not less than one hundred thousand dollars. It is also shown that his three children by a former marriage are already sufficiently provided for. "Under such a state of facts the sum of thirty thousand dollars was not an unreasonable sum for permanent alimony, to be allowed to the wife, nor the sum of eight hundred dollars too large for temporary alimony. . . ." INDIANA. In Tolen v. Tolen (1831), 2 Blackf. 407, the facts were these: A wife, on being deserted in Kentucky, removed to and became domiciled in Indiana, and after a residence there of five years sued for a divorce from the non-resident husband. In an opinion of great length the court considered the question of its power to grant a divorce which would be valid in Indiana, and decided it had such power, but express- ly reserved passing on the question whether the decree would have extraterritorial force. In Hood v. State (1877), 56 Indiana, 263, 271, it was declar- ed that as an ex parte divorce in favor of one domiciled within the jurisdiction of a State, and against a non-resident, al- though founded upon constructive service, was valid as to the plaintiff, "public policy demands that it should be held valid as to both parties." In Hilbish v. Hfittle (1896), 145 Indiana, 59, certain sections of the Indiana Kevised Statutes, wherein it was provided that the divorce of one party to a marriage should dissolve the con- tract as to both, and that a divorce decreed in another State liy a court having jurisdiction of the cause should have full effect in Indiana, were held to be applicable to a decree of divorce granted in another State, in favor of a husband, upon constructive service, and the same effect was given to the decree, as to the rights of the wife in the property of the hus- band in Indiana, as if the divorce had been rendered in In- diana. MISSOURI. In Gould v. Crow, 57 Missouri, 200, a decree of divorce regularly obtained by a husband in Indiana, on an 548 IfAPliOCK V. IIAIHUICK order nl publication, without personsil service, \v;is held to operate ;is ;i divorce in favor of the lin-liaiid in .Missouri, -u ;is io prevent the wife from claiming her dower in hinds in .Missouri owned by the hnshsmd. ll{\ Wisconsin. \ { .*r>, however, in an elaborsite opinion, sin f.r fiaTtr divorce obtained in Michigan upon constructive service merely, by si husband who had de- serted his wife in Wisconsin, wsis held not to affect the status of the wife in Wisconsin nor to bar her from suing in Wiscon- sin for divorce, alimony, allowance and a division of the prop- erty of such linsbsind situated within Wisconsin. Deducing the Isiw of the seversil Stsites from the rulings of their courts of hist resort which we have just reviewed sind ignoring mere minor differences, the law of such States is em- hrsu-ed within one or the other of the following headings: '/. Stsites where the power to decree n divorce is recognized, based upon the mere domicil of the plsiintiff. silthough the decree when rendered will be but opersitive within the borders of the Stsite. wholly irrespective of any force which may be given such decree in other States. I'nder this heading sill of the Stsites are embraced with the possible exception of Rhode Island. 6. Stsites which decline, even upon principles of comity, to reco-ini/e sind enforce sis to their own citi/.ens. within their own borders, decrees of divorce rendered in other States, when the court rendering the same had jurisdiction over only one of the parties. I'mlcr this hesiding is embraced Massachusetts, 549 APPENDIX New Jersey (with the qualification made bv the decision in 59 N. J. Eq. 606) and New York. c. States which, whilst giving some effect to decrees of di- vorce rendered against its citizens, in other States where the court had jurisdiction of the plaintiff alone, either place the effect given to such decrees upon the principle of state comity alone, or make such limitations upon the effect given to such decree as indubitably establishes that the recognition given is a result merely of state comity. As the greater includes the less, this cla*ss of course embraces the cases under the previous heading. It also includes the States of Alabama. Maine, Ohio and Wisconsin. d. Cases which, although not actually so deciding, yet lend themselves to the view that ex parte decrees of divorce ren- dered in other States would receive recognition by virtue of the due faith and credit caluse. And this class embraces Missouri and Ehode Island. Coming to consider, for the purpose of classification, the decided cases in other States than those previously reviewed, which have been called to our attention, the law of such States may be said to come under one or the other of the fore- going headings, as follows: Proposition a embraces the law of all the States, since in the decision of no State is there an intimation expressing the exception found in the Ehode Island case which caused us to exclude that State from this classification. Under proposition 6 conies the law of the States of Penn- sylvania, Vermont and South Carolina. A line of decisions of the State of North Carolina would also cause us to embiace the law of that State within this classification, but for a doubt engendered in our minds as to the effect of the law of North Carolina on the subject, resulting from suggestions made by the North Carolina court in the opinion in the BiiltreU, case, 52 S. E. Rep. .V>. Proposition c embraces the law of Kansas, Louisiana. Mary- land, Michigan. Minnesota, Nebraska and New Hampshire. And it is pertinent here to remark that in Michigan, 3 Comp. Laws Michigan (1897), par. 8621, c. 232, sec. 6, the obtaining of a divorce in another State from a citizen of Michigan is ma'de cause for the granting of a divorce in Michigan to its citizens. A like provision is also in the statutes of Florida. Eev. Stat. Florida, (1902), sec. 1480. 550 MAIU'OCK V. MAI K I'ndcr proposition // we embrace the remaining Stales. although ;is to several the classification ln;iy admit of doubt, vix... California. Illinois. Iowa, Kentucky ;inurt<- decrees of divorce rendered in other States is wholly incon- sistent with the theory that such limited recognition is lia-ed upon the operation of the full faith and credit clause of the Constitution of the ("niled States, and on the contrary is con- sistent only with the conception that such limited recognition as is jiiven is hased upon state comity. No clearer demon- stration can he made of the accuracy of this statement than the ohvious consequence that if the fiill faith and credit clause wene now to he held applicable to the enforcement in the States generally of decrees of divorce of the character of the one here involved it would follow that the law of nearly all of the States would he overthrown, and thus it would come to pan that the decisions which were relied upon as establishing that the due faith and credit clause applies to such decree- would be overruled by the adoption of the proposition which it is insisted those decisions maintain. The only escape from this conclusion would be to say that the law of the States a- sho\\ n by the decisions in question would remain unaffected by the ruling of the full faith and credit clause because not re pugnant to that clause. This would be, however, but to assert that the full faith and credit clause required not that full faith and credit he given in one State to the decrees of another State, but that only a limited and restricted enforcement of a decree of one State in another would fulfill the require nients of that provision of the Constitution. To so decide would be to destroy the true import of the full faith and 551 APPENDIX credit clause as pointed out in the outset of this opinion. Thus, in its ultimate aspect the proposition relied upon re- duces itself to this, either that the settled law of most of the States of the Union as to divorce decrees rendered in one State, where the court rendering the decree had jurisdiction only of the plaintiff, must be held to be invalid, or that an important provision of the Constitution of the United States must be shorn of its rightful meaning. Without questioning the power of the State of Connecticut to enforce within its own borders the decree of divorce which is here in issue, and without intimating a doubt as to the power of the State k of New York to give to a decree of that character rendered in Connecticut, within the borders of the State of New York and as to its own citizens, such efficacy as it may be entitled to in view of the public policy of that State, we hold that the decree of the court of Connecticut ren- dered under the circumstances stated was not entitled to obligatory enforcement in the State of New York by virtue of the full faith and credit clause. It therefore follows that the court below did not violate the full faith and credit clause of the Constitution in refusing to admit the Connecticut de- cree in evidence; and its judgment is, therefore, Affirmed. MR. JUSTICE BROWX, with whom were MR. JUSTICE HARLAX, -Mij. JUSTICE BREWER and MR. JUSTICE HOLMES, dissenting. Marriage between these parties was solemnized June 4, 1868. They separated the same day, without a consummation, and have never lived together since. No matrimonial domicil was ever established in New York or elsewhere. Defendant left New York soon after the wedding, drifted about the country for several years, and finally settled in Connecticut in 1877; remained there twelve years, during which time, and in 1881, he obtained a divorce in the Superior Court in Li-tch- lield County, which he now sets up in defense of this action. Plaintiff took no steps for twenty-six years to obtain a legal separation or maintenance, when, in July, 1804, she applied to the Superior Court of the State of New York for a summons by publication. The defendant did not appear, and a decree was rendered against him by default, separating the parties and granting alimony of $1,500 a year. This decree appr;irs 552 HAHIMU'K V. JIAIU'oi'K in have been abortive, so I'jir as respects alimony at least, probably for lack of personal sen ice on tin- defendant. .Mean time, and in is'.H. defendant had inherited a considerable property from liis father. This action was begun hy a summons dated -lime :'.. l^'.m. thirty one years after the marriage; \\a^ v.-rved upon the de- fendant. \\lio answered December IS. Is'.l'.l. setting lip, amongM oiher tilings, the decree of the Superior Court of Ulchtield County, dissolving the marriage, the validity of which pre- sents the only Federal question in this case. 1. This decree is attacked upon Hie ground that the Con necticui court acted without jurisdiction of the parties law- fully obtained. The record in that case shows that notice of the pendency of the petition was ordered to be published in a Litchtield paper, and also that a copy of the petition be sent to the respondent liy mail, postage paid, at Tarrytown, New York. While there is no aflidavit of the publication of the notice; there is a recital in the decree ''that said complaint and writ have been duly served upon the defendant pursuant to an order of notice made thereon by the clerk of this court." This is snfh'cient priinii hide evidence of the publication to entitle the record to be received. Applegate v. Li-.i-inn-tun dc. Mining-C'o., 117 U. S. 255, li(J, wherein it was said by the court that "while it must be conceded that, in order to give the court jurisdiction over the persons of the defendants, all the steps pointed out by the statute to effect constructive service mi non-residents were necessary, yet it does not follow that the evidence that the steps were taken must ap]K-ar in the record, unless indeed the statute, expressly or by implication, requires it. ... Therefore every presumption not in- consistent with the record is to be indulged in, in favor of its jurisdiction. . . . It is to be presumed that the court be- fore making its decree took care to see that its order lor constructive service, on which its right to make the decree depended, had been obeyed." Ax the record was rejected for reasons appearing only upon its face, it is unnecessary to decide whether the recitals in the decree can l>e contradicted. Possibly the New York court niijjht "have assailed its validity by showing that, notwith- xtanding The recitals in the record, the court acquired no jurisdiction of the defendant by failure to comply with the order of the court with reference to the publication of notice 553 APPENDIX , in a newspaper, or in sending a copy of the petition and com- plaint to the defendant by mail at Tarrytowu, New York, the last known place of residence. The fact that the referee re- fused to admit the record, even as prima facie evidence, fore- closed any defense founded upon the actual failure to obtain jurisdiction over the defendant. There is no doubt of the proposition that a decree of divorce may be lawfully obtained at the matrimonial doinicil, notwith- standing that the defendant may have taken up his or her residence separate from the other party in another State, pro- viding that the law of the domicil with respect to the personal service or publication be scrupulously observed. Atherton v. Atherton, 181 U. S. 155. Doubtless the jurisdiction of the court granting- the divorce may be inquired into, and if it appear that the plaintiff had not acquired a bona fide domicil in 1-hat State at the time of instituting proceedings, the decree is open to a collateral at- tack, Bell v. Bell, 181 U. S. 175, and a recital in the proceed- ings of a fact necessary to show jurisdiction may be contra- dicted. Thompson v. Whitman, IS Wall. 457; Streiticolf v. Streitwolf, 181 U. S. 179; Andrews v. Andrews, 188 U. S. 14. Subject to these conditions, each State has the right to regu- la^e the marital status of its citizens, at least so far as to determine in what manner and by whom marriages may be solemnized, what shall be deemed the age of consent, what obligations are assumed, what property rights are created, for what causes divorces shall be granted, for what length of time the domicil of plaintiff shall have been acquired prior to the institution of the proceedings, and in what manner notice shall be given to the defendant. Nor is the power of the leg- islature in thi^s connection ousted by the fact that the other party to the contract resides in another State, provided that in case of proceedings adverse to such party he or she shall be given such notice as due process of law requires. If such proceedings be in rem or quasi in rein, notice by publication is ordinarily deemed sufficient. But in case of actions in per- sonam for the recovery of damages, personal service within the jurisdiction is vital to the proceedings. Pennoyer v. Neff, 95 U. S. 714; Hilling v. Kaw Valley Railway and Improve- ment Co., 130 U. S. 559. By the laws of Connecticut of 1878, c. 71, p. 305, exclusive jurisdiction is given to the Superior Courts to grant divorces 554 U.M.I..M-K v. IIAI.IXM K I'm- several causes, amon^ which are "\\iltull desertion for three years with t<>t;il neglect of duty." with ;i further provi- sion i (Jfii. Siats. 4.V.~ii, "that plaintiff shall have continu- ously resided in the State three years next before tin- date of (lit- complaint." with certain except ions not matt-rial to be noticed. A further provision, sec. l.V>:;. that, "where tin- ad vei-^e party resides out of. or is absent from tin- Stair, or the whereabouts of the adxerse party is unknown to the plainiill, any judge or clerk of the Supreme Court of Errors, or the Sn perior Court, or any county commissioner, may make such order of notice as lie may deem reasonable, and. such notice having been jiveu and duly proved to the court; it may hear such complaint if it find that the defendant has actually re ceived notice that the complaint is pending, and if it shall not appear that the'defendant has had such notice, the court may hear such case, or, if it see cause, order such further notice to bo ;-iven as it may deem reasonable, and continue the com- plaint until the order is complied with.' 7 The complaint alleged a wilful desertion of the plaintiff for morei than three years, and the court found this to be the fact. -. The case turns upon the (jiiestion whether the Superior Court of Li tch field County gained jurisdiction by a residence of the plaintiff within the State for more than three years. The testimony also showed that the defendant had acquired a separate domicil in New York, and had been living there for about thirteen years. In discussing this question two propositions may be ad- mitted at once, and discarded as having no relevancy to the case ? ' 1. That a judgment for damages in an action /// iirr^mmn is valid only when personal service has been made upon the defendant within the jurisdiction of the court rendering the judgment. This disposes at once of the cases of P en-no ycr v. !."> r. s. 711: of Mississippi &c. R. R. Co. v. Ward, 2 Black, 4.^. win-re an Iowa court had undertaken to abate a nuisance on the Illinois side of the Mississippi river; and of Drltiinn-i a*-. If. If. ('. \. I'ritiixi/lruiiiu. r.i'* I". S. ;Mi. where a State had attempted to tax property having a permanent in another State. J. That the courts of one State may not grant a divorce an absent defendant to any person who has not ac 555 APPENDIX quired a boim fide domicil in that State. The same rule applies if he has removed thither solely for the purpose of acquiring a domicil and obtaining a divorce for a cause, which would have been insufficient in the State from which he removed. Andrews v. Andrews, 188 U. S. 14. The jurisdiction of the Connecticut court in this case is shown, not by the facts as they appear in this case, but from the record in that case, and primarily from the petition, which under the practice in that State is incorporated with the sum- mons. The allegations are: "On the first day of January, 1869, the defendant wilfully deserted the plaintiff, and has continued said desertion, with total neglect of all the duties of the marriage on her part to be performed to the date of this writ, being for more than three years, and during the plaintiff's residence in this State." It is conceded that such desertion is good ground for 'a di- vorce in Connecticut, which may be granted to a plaintiff who has continuously resided in the State three years next before the date of the complaint. The complaint obviously made a case for divorce under the statute. The court found that the complaint and writ had been duly served on the defendant, pursuant to an order of notice made thereon by the clerk ; that the allegations of the complaint had been sustained and a divorce was granted. The case then resolves itself into the single question whether a divorce granted to a plaintiff lawfully domiciled within a State as against a defendant domiciled in another State, who has been served by publication or letter only, is a valid de- fense to a suit by the latter for a separation and alimony. Certain cases in this court tend strongly to support the pro- ceedings in Connecticut. Strader v. Graliam, 10 How. 82, was an action to recover the value of certain slaves carried into Ohio, a free State. The case was dismissed, as involving a question of the local law of Kentucky, the court remarking: ''Every State has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory. . . . and that it was exclusively in the power of Kentucky," (wherein the suit was brought) "to de- termine for itself whether their employment in another State should or should not make them free on their return." In Barber v. Barber, 21 How. 582, a New York court de- creed a separation and alimony to the wife. The husband re- 556 HAKIKK'K V. II A I.I MM K moved to Wisconsin for the purpose of placing himself beyond the jurisdiction of the court which could enforce it. and there obtained a divorce a vinculo upon the ground of abandon- ment. The sole question raised by the record was: "Whether a wife divorced a mcn#a et thoro can acquire another domicila- tion in a State of this Union different from that of her hus- band, to entitle her. 1\ her next friend, to sue him in a court of the United States, having equity jurisdiction, to recover from him alimony due, and which he refuses to make arrange- ment to pay; and whether a court of equity is not a proper tribunal for a remedy in such a case." It was a suit to recover upon a judgment obtained in New York before proceedings instituted in Wisconsin, and was sustained. Obviously, the Wisconsin divorce was no defense. but its validity was not impugned. Chccn'r v. ]\'ilxn. !i Wall. 10S, turned upon certain rights of property, and incidentally upon a divorce obtained in In- diana, in a suit in which the defendant appeared. The case, however, is valuable for two questions decided: First, that a decree of divorce, valid and effectual by the laws of the State 'in which it was obtained, is valid and effectual in all other States; second, that a wife may acquire a domicil different from her husband's whenever it is necessary or proper that she should have such a dprnicil ; and on such a domicil, if the case otherwise allow it, may institute proceedings for divorce, though it be neither her husband's domicil nor have been the domicil of the parties at the time of the marriage, or of the offense. Of course, it follows that if the wife may obtain a new domicil her husband may do likewise, as was done in this case, after the separation or abandonment had taken place. In delivering the opinion, Mr. Justice Swayue observed : "The decree (of divorce) was valid and effectual, according to the law and adjudications, in Indiana." The Constitution and laws of the United States give the de- cree the same effect elsewhere which it had in Indiana. It a judgment is conclusive in the State where it is rendered, it is equally conclusive everywhere' in the courts of the United States." In Cheely v. Clayton, 110 U. S. 701, a divorce obtained in a territorial court, upon notice by publication insufficient under the laws of the Territory, was held to be of no effect. The 557 APPENDIX court, however, observing : "If a wife is living apart Jrom her husband without sufficient cause, his domicil is in law her domicil ; and, in the absence of any proof of fraud or miscon- duct on his part, a divorce obtained by him in the State of hi& domicil, after reasonable notice to her, either by personal service or by publication, in accordance with its laws, is valid, although she never in fact resided in that State," citing Burlen v. Shannon, 115 Massachusetts', 438, and Hunt v. Hunt, 72 N. Y. 218. In Maynard v. Hill, 125 U. S. 190, a legislative divorce was upheld, and it was said that the fact that no cause existed for the divorce, and that it was obtained without the knowledge of the wife, cannot affect the validity of the act. It was fur- ther said that though the conduct of the husband merited the strongest reprobation, his abandonment of his wife, his loose morals and shameless conduct could have no bearing upon the power of the assembly to pass the act. Four recent decisions in this court are too important to pass unnoticed. In Bell v. Bell, 181 U. S. 175, and in Streitivolf v. Streitwolf (p. 179), it was held 'that a divorce obtained in a State in which_ neither party was domiciled, upon service by publication and in another State, was entitled to no faith and credit. These decisions ,were unanimous. And in Andrews v. Andrews, 188 U. S. 14, that a divorce obtained by one who had gone into another State to procure a divorce in fraud of the law of the domicil, was also invalid. There remains the case of Atherton v. Atlierton, 181 U. S. 155, a divorce obtained by a husband in Kentucky which had been the matrimonial domicil, though the wife had been absent froni the State for several months, and apparently had at- tempted to acquire a^ new domicil in New York. The court took care to confine the case to the one point decided, namely, the validity of a divorce obtained at the matrimonial domicil. The court out of abundant caution expressly disclaimed that the case involved the validity of a divorce granted, on con- structive service, by the -court of a State in which only one of the parties ever had a domicil ; nor the question to what ex- tent the good faith of the domicil may be afterwards inquired into. "In this case, the divorce in Kentucky was by the court of the State, which had always been the undoubted domicil of the husband, and which was the only matrimonial domicil of the husband and wife. The single question to be decided. 558 IIAIUHM-K V. HAIUMM K i> tlio validity i|' tli;il divorce, granted alter such notice had been given as was required liy the statutes of Kentucky. " While the .(Ilicrton case. ;is already stated, was confined to ;i divorce obtained ;it the ln:it rilliniliill (loiliicil, the c;ises cited by Mr. Justice (Jray in his opinion relate to divorces obtained in a State which was the domieil only of the complaining party, and are practically the same as those cited hy him in his opinion as Chief Justice of Massachusetts in liiirlin \. siuiininii. 11. " .Massachusetts, 438. In reading the two CMOS together one is strongly impressed with the idea that in the .\tlu-rttni case he had the former case in mind, and gave it such approval as the facts in the latter case would war-rant. Not only had the Court of Appeals of Kentucky decided that a wife residing in that State was entitled to obtain a decree of divorce against her husband who had left the Stale. A'///////. v v. Rlii/inx, 7 P>ush, 316; Perzel v. /'1 Kentucky. (\:\l. but a number of cases from other States were cited holding to the same principle. The opinion of the court in the present case admits that u here the domieil of the husband is also the domieil of mat- rimony, the courts of that domieil may disregard an unjusti- fiable absence of the wife therefrom, and treat her as having her domieil there for the purpose of dissolving the marriage as to both parties, and that such dissolution would be recogni/.ed in all other States by virtue of the full faith and credit clause, citing to this effect Atherton v. Atlierton, 181 U. S. !.">.">. and. as a corollary therefrom, it is admitted that no question can arise concerning the right of the State of Connecticut to give elVect to a decree of divorce rendered in favor of the husband while domiciled in that State. The question is, undoubtedly. as stated, whether the Connecticut court, in virtue of the domieil of the husband in that State, had jurisdiction to render a decree against the wife which was entitled to be en- forced in other States, under the full faith and credit clause. I deny, however, that the final question is whether this would be enforcing a persomil judgment rendered in another State against the defendant, over whom the court rendering the judgment had not acquired jurisdiction. A proceeding for divorce is not in personwm nor of an exceptional character, except so far as all proceedings in retn are governed by a dif- ferent rule from that applicable to proceedings in />T.VO/WM. The validity of the latter class depends upon personal service 559 APPENDIX of the defendant being obtained within the jurisdiction. The validity of the former depends upon the jurisdiction of the court over the res in this case the marriage relation, the domicil of the plaintiff, and such jurisdiction over the defend- ant as is consonant with the general principles of the con- stitution with regard to due process of law. The proposition of the opinion, as we-understand it, may be summarized as follows: That, if one government by virtue of its authority over mar- riage, may dissolve the tie as to citizens of another govern- ment, that other government would have a similar power, and hence the right of every government over its own citizens might be rendered nugatory by the exercise of the power which every other government possesses. To illustrate by the present case: That, if the husband may desert his original domicil in New York, go to the State of Connecticut, acquire a domicil there and procure a divorce which would be bind- ing in New York' as to the party there domiciled, it would follow that the power of the State of New York as to the dis- solution of the marriage, as to its domiciled citizen, would be of no practical avail. The opinion, however, fails to state the logical result of this proposition, viz., that no divorce would be possible in either State without a personal service upon the other within the State. If the husband, having his domicil in Connecticut, could not obtain a divorce against his wife domiciled in New York without a personal service,, it follows that the wife domiciled in New York could not ob- tain a divorce against her husband in that State without a personal service there. Undoubtedly the laws of some States are more liberal upon the subject of divorce than those of other States, but that does not affect the question. If the complaining party has acquired a domicil in the State in which he institutes pro- ceedings, he is entitled to the benefit of the laws of that State with respect to the causes of divorce." It is argued that, as the Constitution delegated no authority to the Government of the United States on the subject of mar- riage and divorce, yet, if the validity of the, Connecticut di- vorce in this case be sustained, it follows that the destruction of the power of the States over the dissolution of marriage of its own citizens would be brought about by the full faith and credit clause of the Constitution. But this was the very point 560 MAhlioCK V. IIA1HMM K decided in the \tlnrtoii case, where ;| divorce obtained in Kentucky by publication was held good in New York, as agaiii>l ;i proceeding by the wife for ;i divorce in lli;il Slate. It is true that tin- matrimonial 'doffitall \v;is in Kentucky. But tliis does not aft'ect tin- proposition asserted in the opin- ion, that the decree did work a dissolution of the marriage, as to her by th<> operation of the full faith and credit claii-e .| the Constitution, and to that extent it did work a destruction of the power as much in tho State of New York as it was in the State of Con necticut, but it does not follow that the action of the Con- necticut court with respect to that res is not as much obliga- tory in New York as in Connecticut. It is of the very essence of proceedings in rnn that the decree with respect to the ret, whether it be a vessel, a tract of land or the marriage rela- tion, is entitled to be respected in every other State or country. The stutu* tixed by the adjudication in the State of the former is operative everywhere. Indeed, the proposition is so ele- mentary as not to need the citation of an authority. The conclusion of the argument is that, the courts of New York having the same power to decree a dissolution of the marriage ;it the suit of the wife, that the courts of Connecticut would have to make a similar decree at the suit of the hus band, it would become a mere race of diligence between the parties in seeking different forums in oilier States; or the celerity by which in such States judgments of divorce might be procured, would have to be considered in order to decide which forum was controlling. Granting this to be the case, does not every plea of res adjudicata presuppose a prior judg- ment, and is it a defense to such plea that such judgment was obtained by superiority of a race of diligence? The whole doctrine is founded, if not upon the doctrine of superior dili- gence, at least u|xn the theory of a prior judgment, which ti\es irrevocably the rights of the parties, win-never and when- ever these rights may come in Massachusetts, 438, which was an action against the husband for board furnished the wife. The hus- band, whose wife was living apart from him without justiti- able cause, removed to Indiana, acquired a domicil there and obtained a decree of divorce by publication, and by leaving a summons at her abode in Massachusetts. The divorqe was held to be valid in Massachusetts as to all persons, although the wife had never been in Indiana, never appeared in the suit there, had no knowledge that her husband contemplated going to that State, or had left Massachusetts, until after he had tiled his libel for divorce. The authorities are review I'd by Mr. .Justice dray, and the conclusion reached that the divorce in Indiana was valid. 56? APPENDIX Cumminyton v. Belchertown, 149 Massachusetts, 223, was an action to recover expenses incurred by the plaintiff for the support of an insane pauper. The husband had removed to another State and procured a decree annulling the marriage on the ground of fraud in concealing from him the fact of in- sanity before their marriage. Notice of the proceedings was served upon her, but she was not represented, and it was held that the decree wds insufficient to annul her marriage in Mass- achusetts. It was held, under the familiar rule that the ju- risdiction of the foreign court may be inquired into, that the wife, when the proceedings were commenced and concluded was utterly insane, and that the record of the New York courts showed her to have been so, and that no guardian was appointed. x The case was disposed of as one over which the Nc\v York court had acquired no jurisdiction. It does not qualify in any way the previous case of Burlen v. Shannon. The case of Ditson v. Ditson, 4 R. I. 8-7, is directly in point, and I understand it to l)e so admitted. It was held that a divorce in Rhode Island on the ground of desertion was val>d, though the husband had never been within the jurisdiction of Rhode Island, and only constructive notice of the pendency of the petition had been given him. The rule in Kentucky is settled in Rhi/ins v. If hi/ in K, 7 Bush. 316, in which a wife proceeded against her husband as a non- resident by a warning order, and it was held that the court liad jurisdiction to grant her a divorce. Chief Justice Robert- son remarking: "It would be a reproach to our legislation if a faithless husband in Kentucky could by leaving the State deprive his abandoned wife of the power v to obtain a divorce at home." In Hawkins v. Ragsdale, SO Kentucky, 353, it was held that a divorce obtained by the husband in Indiana by constructive service determined the status of the party in Kentucky, and that under the statutes of that State it barred all claim to curtesj 7 or dower in Kentucky lands. To the same effect is Perzel v. Perzel, 91 Kentucky, 634. The law of California is settled in In re 'Newman, 75 Califor nia, 213, to the effect that a suit for divorce, so far as it affects the status of the parties and the custody of their children, is a proceeding in rem, and service by publication on a non- resident defendant is good. This ruling was repeated in In re James,, 99 California, 374, where it is declared that such de- cree, is equally valid in other States. 564 HADIxiCK V. HADDOCK Nowhere is the rule more strongly asserted tli;tn in Tenues- see, where a decree obtained in Illinois by publication was sustained in Thonis \. hiin/, 95 Tennessee, 60. and where it seems to have been held that the decree could not he i in] cach- ed, even by showing the absence of necessary residence. In Cooper v. Cooper, 7 Ohio St. 594, it was held that a di- vorce granted in Indiana precluded an application for a di- vorce and alimony in Ohio. In Cox v. Cox, 19 Ohio St. .',111'. the validity of a foreign decree of divorce obtained by con- structive service, except so far as regarded the question of alimony, was sustained. The same ruling was made in 7>oo / v. Forxi/tlir, ."ill Ohio St. TlMi, holding that while the Indiana divorce was good, it did not affect the property rights of the wife in the State of Ohio. The rule in Missouri is stated in C'mltl v. Cnur, r>7 Mis souri 200, that a divorce regularly obtained by the husband in Indiana on an order of publication operates as a divorce in his favor in Missouri, so as to prevent his wife from claiming dower in lands owned by him in that State. The decree so pronounced is a judgment /// nut and is valid everywhere un der the Constitution and laws of the United States. A like ruling was made in Aittli<; K;i>- sas, 483, to the effect that the courts of a sister State may di> solve a marriage relation between a husband domiciled there. and a wife domiciled in Kansas, by publication, although un- known to her; but that such courts have no power to settle the title of lands in Kansas or control the custody of children residing there. But it was also decided in < '/minium v. CJm/>- iiniii. -Is Kansas, 636, that a wife having obtained a divorce in Ohio upon service by publication, was not entitled to dower in lands in Kansas fraudulently conveyed by her husband in fraud of her or others. In Smith v. Smith. -I:', La. Ann. 1140. it is held that a wife may acquire a separate domicil from that of her husband where his conduct has been such as to furnish ground for di- vorce, and her marriage .v/ Illinoi>, l.'.s, ;1 iid in Dnnluini \. Dniilnmi. Hii' Illinois, 589. Tlie law in New -lersey appeared at one time to favor the contention of the wife in this case. The i:ist of the decisions seemed to be that a foreign decree js enforceable in another State only on the ground of comity. This was indicated in Jtmiiflitif v. Dimtjliti/, L'S N. .1. !:<). .".Si. though the derive in that case was held to have been obtained by fraud. It was admitted that the decree obtained by the husband in Illinois was lawful and binding there, but it was held that it did not change the status of the wife in New Jersey, her citizenship there being admitted. The case was properly decided on the ground that the husband went to Illinois to obtain a divorce. and acquired no bona fide domicil there. The same rule was recognized in Flower V. Finn-,,-. r_' N. .1. Kq. 1.">L'. These < however, seem to have been overruled in /' give jurisdiction, not- withstanding the defendant had not been served with process there. The court remarked in this case: "A condition of the law which makes the intercourse of a man and woman either legitimate or adulterous as they happen to be within the limits of one State or another is not to be tolerated any fur- ther than is plainly required by public policy." This case evidently puts New .lersey in line with the vast majority of other States. The cases of New York upon this subject are numerous and perhaps not wholly reconcilable, but we think that the law, as summarized in the last case of U"///.v/o// v. \Vinxtnn. l;r. N. V. .">:::'.. is adverse to the validity of a divorce obtained in an- other State without service of process within the jurisdiction. Of the same tenor are the cases in Pennsylvania: Culrin v. Reed, .".." Pa. St. ::7.~>: /// \. i;i,i-. i;i! Pa. St. :;us. North Carolina: Irby v. Wil*<>n. 1 l>ev. & Hat. Kq. r5S; ///////* \. 567 APPENDIX Harris, 115 X. Car. 587. South Carolina : McGreery v. Dams, 44 S. Car. 105. The law in this country then may be summarized as follows r In Maine, Massachusetts, Bhode Island, Kentucky, Califor- nia, Tennessee, Ohio, Missouri, Kansas, Louisana, Wisconsin, Alabama, Iowa, Indiana, Maryland, Minnesota, Illinois and New Jersey, the validity of a divorce obtained in another State by a party there domiciled in a proceeding where con- structive service upon the defendant only is obtained, is fully- recognized. In Ohio, Iowa and Minnesota, and perhaps also Louisiana and Alabama, her right to alimony and to dower is preserved. But the very cases which limit the effect of the divorce, so far as property rights are concerned, restrict such rights to dower in lands of which the husband was seized during coverture, and inferentially at least to alimony from such property. It is also limited to property within the State where suit is brought. That her rights in her husband'* property should extend to property acquired by him long after the divorce is nowhere indicated. The only States in which it is held that a party domiciled in another State may not obtain a divorce there by construc- tive service are New York, Pennsylvania, North and South Carolina. A proceeding for divorce is a suit in rem, with which is often incorporated a suit in personam. The res is aptly stated in Illis v. Martin, 53 Missouri, 575, as "the status of the plain- tiff in relation to the defendant to be acted on by the court. This relation being before the court in the person of the plain- tiff, the court acts on it, and dissolves it by a judgment of divorce." The fact subsequently ascertained, that it may have been procured by fraud or false testimony, is wholly beside the question, as we shall hereafter show. The fact that the husband changed his domicil to another State, after the cause of action arose, is also immaterial. The status of the husband in this case was irrevocably fixed by the decree. It is unnecessary to consider how far it affected the status of the wife in New York, which, in respect to other questions, may be subject to the local law; but her relations as against her husband are controlled by the decree which fixed his status. Indeed, it would be a reproach to our jurisprudence if an injured party residing in one State could not obtain a decree from the other party, without pursuing the offending. 568 IIAI.IiOCK \. HAMMM'K party ihin another and distant State, where lie or she may h;i\e chosen io est;illisli a domicil. lii thiv ,-ase ill.- P'leree reported that the defendant aban doned the plaintiff without cause or jnsiiiic.-n ion. An excep- tion was taken to this report, and the testimony was sent up. which shows that the parties separated on the day of their marriage and have never lived together since. The testimony leave-, it doubtful whether it was a case of abandonment or <.t -eparation l>y mutual consent. It does, however, sliow that plaintiff took no steps to assert her martial rights for twenty six years after her marriage. Her husband having in the meantime inherited a large amount of property from his father, she began suit for divorce a mensa et tli<- ami an allowance of alimony. This suit, however, was ineffectual so far as respects the alimony, as' no personal service was ob- lained. She wailed again for five years and began this pro- ceeding both for a separation, which she had already obtained, and for alimony. We think the defendant may lawfully reply thus: "Von are pursuing me as your husband for a separation ilr jtirr which hns existed for thirty-one years rf!' Maine. 1S1 ; It. a II. A*. #. Company v. N/>;7wt0fc, 1 Allen, ll>: niini/tort v. Xi/mimon, Croke, Eliz'bth, 520; #j/re v. snli/irirkf, (Yoke. .lames. (101; Mason v. Messenger,'Vl Iowa. L'lil. I'TU: U7*/7r r. Mrrritt, 7 N. Y. :',::.'. When it is considered that the status of the defendani W&6 tixed by the decree of the Connecticut court in 1SS1, in a pro- ccy the defendant, becomes the more manifest. We think that at least the record should have been received. I regret that the court in this case has taken what seems to me a step backward in American jurisprudence, and has vir- tually returned to the old doctrine of comity, which it was the very object of the full faith and credit clause of the Con- stitution to supersede. .Mi:. JUSTICE HOLMES, with whom concurred Mi:. JUSTICE HARLAN, MR. JUSTICE BREWER and MR. JUSTICE BROWN, dis- senting. I do not suppose that civilization will come to an end whichever way this case is decided. l!ui as the reasoning which prevails ^u the mind of the majority does not convince me. and as T think that the decision not only reverses a previous well considered decision of this court hut is likely to cause considerable disaster to innocent persons and to la> tardi/.e children hitherto supposed to be the offspring of law- ful marriage. I think it proper to express my views. Gen- erally stated, the issue is whether, when a husband sues in the .urt of hi* domicil for divorce from an absent wife on the ground of her desertion, the jurisdiction of the court. if there iv no personal service, depends upon the merits of the case. If the wife did desert her husband in fact, or if she was served with process. I understand it not to be disputed that a decree of divorce in the case supposed would be con elusive, and so I understand it to be admitted thai if the 571 APPENDIX court of another State on a retrial of the merits finds them to nave been decided rightly its duty will be to declare the decree a bar to its inquiry. The first form of the question is whether it has a right to inquire into the merits at all. But I think that it will appear directly that the issue is nar- rower even than that. In Afherton v. Afherton, 181 U. S. 155, a divorce was grant- ed, on the ground of desertion, to a husband in Kentucky against a wife who had established herself in New York. She did not appear in the suit and the only notice to her was by mail. Before the decree was made she sued in New York for a divorce from bed and board, but pending the latter pro- ceedings the Kentucky suit was brought to its end. The husband appeared in New York and set up the Kentucky de- cree. The New York court found that the wife left her hus- band because of his cruel and abusive treatment, without fault on her part, held that the Kentucky decree was no bar and granted the wife her divorce from bed and board. The New York decree, after being affirmed by the Court of Ap- peals, was reversed by this court on the ground that it did not give to the Kentucky decree the faith and credit which it had by law in Kentucky. Of course, if the wife left her husband because of his cruelty and without fault on her part, as found by the New York court, she was not guilty of deser- tion. Yet this court held that the question of her desertion was not open but was conclusively settled by the Kentucky decree. There is no difference, so far as I can see, between Atherton v. Atherton and the present case, except that in Atherton v.- Atherton the foruiri of the first decree was that of the matrimo- nial domicil, whereas in this the court was that of a domicil afterwards acquired. After that decision any general objec- tion to the effect of the Connecticut decree on the ground of the wife's absence from the State comes too late. So does any general objection on the ground that to give it effect invites a race of diligence. I therefore pass such arguments without discussion, although they seem to me easy to answer. More- over, Atherton v. Atherton decides that the jurisdiction of the matrimonial domicil, at least, to grant a divorce for the wife's desertion without personal service, does not depend upon the fact of her desertion, birt continues even if her husband's cruelty has driven her out of the State and she has acquired a 572 V. HADDOCK separate domicil elsewhere upon the principles which we all a^i-cc are recogni/ed by this court. I can se<> no ground for giving a less effect lo the decree when the husband changes his domicil after the >cpara t ion has taken place. The <|uestion whether such a decree shouhj have a less elVeet is the only (|iiestion open, aixl the -issue is narrowed to that. No one denies that the husband may -m- for divorce in his new domicil. or, as F have said, that if he a decree when he really has been deserted, it will he binding everywhere, llun-kin* v. l{(if course this is a (Mire tiction, and lict ion always is a ]M>or ground for chan-iiiiii rights. It seems to me also an inadequate tiction, since by the same principle, if he deserts her in the matrimo- nial domicil, he is equally powerless to keep her domicil there, if she moves into another State. The truth is that jurisdic- tion no more depends upon both parties having their domicil within the State, than it does upon the presence of the defend- ant there, as is shown not only by Atlvertnn v. Atln'rtnn. but by the rights of the wife in the matrimonial domicil when the husband deserts. There is no question that a husband may establish a new domicil for himself, even if he has deserted his wife. Vet in these days of equality I do not suppose that it would be doubted that the jurisdiction of the court of the matrimonial domicil to grant a divorce for the desertion remained for her. as it would for him in the converse case. See Chcrrcr v. \Vil- xw,!! Wall. 10S. Indeed in Itilxnn v. IHI.*m. I \i. I. ^7. which, after a quotation of .Judge Cooley's praise of it. is slated and relied upon as one of the pillars for the decision of .\tlnrtnn \. I tin //'///. a wife was granted a divorce, without personal service, in the State of a domicil acquired by her after separa- tion, on the sole Around that in the opinion of the court its decree would he binding everywhere. If that is the law it disposes of the case of a husband under similar circumstan. e>. that is io say of the present case, a fortiori; for 1 supi>ose 575 APPENDIX that the notion that a wife can have a separate domicil from her husband is a modern idea. At least Ditson v. Ditson, confirms the assumption that 'jurisdiction is not dependent on the wife's actually residing in the same State as her. hus- band, which has been established by this court. Atherton v. Atherton, 181 U. S. 155; Maynwd v. Hill, 125 U. S. 190; Cheever v. Wilson, 9 Wall. 108. When that assumption is out of the way, I repeat that I cannot see any ground for dis- tinguishing between the extent of jurisdiction in the matrimo- nial domicil and that, admitted to exist to sonffe extent, in a domicil later acquired. I also repeat and emphasize that if the finding of a second court, contrary to the decree, that the husband was the deserter, destroys the jurisdiction in the later acquired domicil because the domicil of the wife does not follow his, the same fact ought to destroy the jurisdic- tion in the matrimonial domicil if in consequence of her husband's conduct the wife has left the State. But Atherton v. Atherton decides that it does not. It is important to bear in mind that the present decision purposts to respect and not to overrule Atherton \. Atherton. For that .reason, among others, I spend no time in justifying that case. And yet it appears to me that the whole argument which -prevails with the majority of the court is simply an argument that Atherton v. Atficrton is wrong. I have tried in vain to discover anything tending to show a distinction between that case and this. It is true that in Atherton v. Atherton, Mr. Justice Gray confined the decision to the case before the court. Evidently, I should say, from internal evi- dence, in deference to scruples which he did not share. But a qourt by announcing.that its decision is confined to the facts before it does not decide in advance that logic will not drive it further when new facts arise. New facts have arisen. I state what logic seems to me to require if that case is to stand, and I think it reasonable to ask for an articulate in- dication of how it is to be distinguished. I have heard it suggested that the difference is one of degree. I am the last man in the world to quarrel with a distinction simply because it is one of degree. Most distinctions, in my opinion, are of that sort, and are none the worse for it. But the line which is drawn must be justified by the fact that it is a little nearer than the nearest opposing case to one pole of an admitted antithesis. When a crime is made burglary by 574 HAM'orK V. H.\IUK)CK the fact ili;ii ii \v;is committed lliirty seconds after HIM* hour after sunset. ascertained according to mean time in the place of the act. to take ;ill example from Massachusetts ill. I., c. I'll). S Hh. tin- .-ict is a little nearer to midnight tli:in if it h;nl been committed one iniinite earlier, :iml no one r>. But there is no exception in the words of the Constitution. "If the judgment is conclusive in the State where it was pronounced it is equally conclusive everywhere." ChrixtitKix v. Ifiiwll, ."> Wall. L".M|. Marshall. C. .1.. in Hamil- ton v. McCoiimL '' Wheat. 234; Mills v. Duri/n , 7 Cranch, IH. lv", : Story. Const. i:!i:',. See also Ifnnrork \utioiuii Haul- v. l-'iinnnii. 17C I*. S. IUO. r.ll. ;.". I tind no <|iialitica- tion of the rule in I J'm-o //*/// \. I'rlirim ///.v. ('., lL'7 1". S. _';.". That merely decided, with regard to a case not within the words of the Constitution, tluit a state judgment could not be sued upon when the facts which it established were not a cause dl action outside the Stale. It did not decide or e\ en remotely suggest that the judgment would not be conclusive a^ to the facts if in any way those facts came in question. It is decided a* well as admitted that a decree like that ren- deie convinced that at that time the court had not thought of the 575 APPENDIX divorce being confined in its effects to the Territory where it was granted, and enough to read Athertoii \. AtJierton to see that its whole drift and tendency now are reversed and its necessary consequences denied. 576 TABLE OF CASES. Abbott v. Abbott, p. 144 Abel, Knapp v., p. 27 Adair v. Mette, p. 21 Adams v. Adams, pp. 160, 177, 183 Adams v. Brockett, p. 126 Adams v. Champion, p. 374 Adams v. Circuit Judge, p. 297 Adams v. Field, p. 376 Adams v. Judge, p. 297 Adams v. Palmer, p. 154 Adams v. Seibly, p. 254 Adams v. Story, p. 247 Adams, Woodruff Iron Wks. v., p. 131 Adkins v. Holmes, p. 16 Agneau v. Brooklyn, p. 338 Ahlefeldt, p. 26 Ainger, Ewing v., p. 376 Airth, Emery v., p. 302 Alaska &c. Commercial Co., Mc- Curdy v., p. 28 Albrecht, Matter of, p. 82 Albright, People v., p. 281 Alcott, Glover v., pp. 77, 127 Alden, Harding v., pp. 34, 35, 161 Aldrich v. Aldrich, p. 254 Algood v. Williams, p. 161 Allen, Cross v., p. 6 Allen, Simmonds v., p. 14 Allen, Thorp v., p. 108 Allen v. Allen, pp. 81, 253 Allen v. Crane, p .118 Alston v. Newcomer, p. 161 Amazon Ins. Co., Hebel v., p. 297 Amperse, Burdeno v., pp. 75, 80, 137 Amphlett v. Hibbard, pp. 108, 110, 115 Anderson, Burton v., p. 29 Anderson. Muslon v., x pp. 243, 254 Anderson v. Odell, p. 112 Andrews, Newcomb v., p. 131 Andrews, Wright v., p. 27 Andrews v. Andrews, pp. 164, 165, 175, 259 Angel, Chase v., p. 104 Anonymous, p. 206 Anshutz v. Anshutz, p. 215 Anthony v. Rice, p. 35 Anti Kalsomine Co., Church v., p. 327 Armitage v. Toll, p. 112 Arndt v. Arndt, p. 25 Arndt v. Bourke, p. 300 Arnold v. Bright, p. 374 Arnold v. Nye, p. 297 Arrington v. Arrington, pp. 33, 162 Arrington v. Bell, p. 134 Arthur v. Caverly, p. 141 Artmand v. Ferguson, p. 129 Ashe v. Pennier, p. 147 Ashland, Collins v., p. 161 Askew v. Dupree, p. 21 Aslanian v. Dostumian, p. 28 Atcaeson, Scarpellini v., p. 125 Atherton v. Atherton, pp. 32, 34, 41, 161 Atkinson, Woolfenden v., p. 76 Attorney General v. Jochim, p. 322 Atwater v. Kinman, p. 305 Atwell, N. Y. Baptist Union v., p. 297 Auditor General v. Bolt, p. 372 Auditor General v. Fisher, p. 81 Auditor General v. Hill, p. 376 Augustine, Hull v., p. 27 Austin v. Austin, p. 228 Avakian v. Avakian, p. 156 Averill v. Savings Bank, p. 118 Ayer, Kermott v.. pp. 27, 28 Ayres v. Wayne Circuit Judge, pp. 236, 291 577 TABLE OF CASES CITED Babbitt v. Babbitt, p. 217 Babcock v. Marshall, p. 26 Bacon v. Bacon, p. 192 Bacon v. Judge of Probate, p. 97 Baent v. Kennicutt, p. 300 Bailey, Ewing v., p. 336 Bailey, Waterman v., pp. 358, 363 Baily v. Baily, p. 244 Bainenall, Van Voorhis v., p. 263 Baker, People v., pp. 38, 39, 252 Baker, Robinson v., pp. 88, 111 Baker v. Baker, p. 175 Baker v. Pierson, p. 86 Baldwin, Hillard v., p. 182 Baldy, Beecher v., pp. 105, 106, 110 Balk, Harris v., p. 25 Balsom, New Haven 1st Nat. Bk. v., p. 161 Baltimore &c. R. R. Co. v. McDon- ald, p. 26 Banbury, Wetmer v., p. 322 Banco de Sonoro v. Bankers Mut. Casualty Co., p. 28 Bandfield v. Bandfield, p. 243 Banka, Eubanks v., p. 13 Bank, Butcher v. Bankers Mut. Casualty Co., Banco de Sonoro v., p. 28 Bank of Commerce v. Mayer, p. 26 Bank of North America v. Wheel- er, p. 25 Bank v. Newton, pp. 76, 134 Baptiste v. DeWolunbrun, p. 28 Barber v. Barber, pp. 252, 253 Barber v. Eberle's Est., p. 132 Barber v. Hoover, p. 133 Barber v. Root, p. 31 Barver v. Rorabeck, pp. 106, 108 Barclay v. Commonwealth, p. 175 Barkman v. Hopkins, p. 26 Barnard v. Colwell, p. 374 Barnes, Clanton v., p. 138 Barnes v. Barnes, p. 267 Barnes v. Cuness, p. 156 Barnes v. Moore Est., p. 145 Barnes v. Powers, p. 306 Barney v. DeKraft, p. 38 Barrett v. Scott, p. Ill Barron, Parker v., p. 22 Barren, Robinson v., p. 91 Barth v. Lines, p. 76 Bartlett v. Knight, p. 222 Barton v. Barton, p. 21 Barton v. Gray, p. 300 Bascomb v. Bascomb, pp. 207, 208 Bassett v. Budlong, p. 80 Bassett v. Shepardson, pp. 128, 129 Batchelder v. Batchelder, p. 219 Batchelder v. Sargent, p. 134 Bates v. Desenberg, p. 374 Bates v. Virclette, p. 28 Bathrick v. Bathrick, p. 21 Battle Creek, Graves v., p. 371 Bauer v. Bauer, p. 331 Bauer v. Long, p. 110 Baughman v. Baughman, p. 186 Baugh v. Baugh, pp. 194, 223, 243 Bavin v. Bavin, p. 259 Bay City Bridge Co., Maxwell v., p. 374 Bay County Circuit Judge, Hart- ingh v., p, 305 Beach v. Brown, p. 147 Beal, Dickinson v., p. 336 Beamer, Vinton v., p. 141 Bean v. Briggs, p. 28 Bearinger v. Bearinger, p. 226 Bear v. Heasley, pp. 33, 222 Bear v. Stahl, p. 90 Bebee v. Lyle, p. 91 Becker v. Becker, p. 163 Becklenberg v. Becklenberg, pp. 163, 173 Bedard v. Simons, p. 368 Beecher, Gillespie v., pp. 127, 128 Beecher v. Baldy, pp. 105, 106, 110 Beecher v. Detroit, p. 161 Beekman v. Beekman, p. 171 Beers, Cooper v., p. 161 Begrow v. BegroW, p. 228 Behrman, State v., p. 14 Belgrade, Camden v., p. 68 Bell, Arlington v., p. 134 Beller v. Beller, pp. 214, 288 Bell, State v., p. 15 Bell v. Bell, p. 32 Belote, Needham v., p. 84 Bemis v. Conley, p. 86 Bender, Burrall v., pp. 85, 86 Benedict v. Burman, p. 89 Benedict v. Crookshank, p. 374 578 'TABLE OF CASKB CITED Benefit Assn., Thompson v., p. ::"" Benjamin, Singer Mfg. Co. v., p. 374 Bennett, People v.. pp. 70, 195 Bennett v. Bennett, pp. 145, 147, 200, 212, 227, 228, 235, 287 Bennett v. Rickey, p. 358 Bennett v. Nichols, p. 248 Bennington's Succession, p. 38 Benson v. Morgan, p. 143 Bentley v. Hosmer, p. 178 Benton's Succession, p. 34 Berdolt v., Berdolt, p. 207 Berge, Morrison v., p. 131 Berger v. Clark, p. 133 . Berger v. Jacobs, pp. 74, 79, 146 Berry, Libby v., p. 144 Besch v. Besch, p. 213 Betchel v. Betchel, p. 179 Betser v. Betser, p. 147 Betts, Schnabel v., p. 134 Bialy v. Bialy, p. 246 Bickford v. Bickford, p. 191 Bidwell v. Bidwell, pp. 33, 163 Bigelow, Cleaver v., p. 108 Bigelow, Proctor v., p. 55 Bingham v. Miller, p. 154 Birkby v. Birkby, p. 153 Bishop v. Bishop, pp. 201, 203 Bixby, McCleary v., p. 108 Bizer v. Bizer, p. 219 Blackburn, Henry v., p. 134 Blackburn, Osburn v., p. 2/7 Blacks Case, p. 25 Blackstock, Frolich v., pp. 110, 368 Black v. Black, p. 201 Black v. Dawson, p. 371 Blaisdell v. Brickum, pp. 14, 16 Blake v. Blake, pp. 201, 202, 204, 205 Blake v. Dudley, p. 176 'Bialy v. Bialy, p. 24:1 Blanchard, Brown v., p. 374 Blanchard v. Lambert, pp. 65, 68 Blandin v. Brooks, p. 163 Blaney v. Blaney, p. 219 Bliss v. Probate Judge, p. 97 Blodgett, Keildsen, p. 138 Blondin v. Brooks, p. 190 Bloss' Estate. In re, p. 94 Blue Earth County Court, St;iu- v.. p. 179 Blumenthall. Levison v., p. 25 Boardman, Taylor v., pp. 79, 343, 376 Boettner, State v., p. 176 Bolt, Auditor General v., p. 372 Bolton, Lawrence v., p. 307 Bonker v. People, pp. 51, 52, 195 Booker v. Wingo, p. 138 Bordentown, State v., p. 160 Bothane, New Home Sewing Ma- chine Co. v., p. 374 Botsford v. Murphy, p. 374 Botts v. Knabb, p. 134 Bouchard v. Bourassa, p. 106 Boulden, Brown v., p. 161 Bourassa, Bouchard v., p. 106 Bourgette v. Williams, p. 375 Bourke, Arndt v., p. 300 Bourne, Schoenfeld v., p. 296 Bovee, Wait v., p. 82 Bovine v. Selden, p. 116 Bowen v. Bright, p. 308 Bowen v. Huston, p. 24 Bowen v. Lansing, p. 82 Bowersox v. Gitt, p. 26 Bowers v. Bowers, p. 16 Bowler v. Hurton, p. 222 Bowles v. Hoard, pp. 85, 86, 114. 246 Boyer v. Diveley, p. 14 Boylan, O'Connor v., p. 117 Boylan v. Deinzer, p. 16 Boynton, Gillam v., p. 128 Bracken, McHenry v., p. 14 Brakett v. Norton, p. 28 Bradfield v. Bradfleld, pp. 160, 163, 165, 178, 235 Bradshaw v. Heath, p. 38 Branch v. Branch, p. 169 Brandan v. Brandan, p. 244 Brasch v. Brasch, pp. 244, 250, 264 Bray, Palmer v., p. 117 Brayson v. Brayson, p. 154 Brengal v. McClellan, p. 25 Brewer, Sheldon v., p. 110 Brickum, Blaisdell v., pp. 14, 16 Bridport, Nelso v., p. 29 Brigg City of Erie, Canfleld v., p. 364 Briggs, Bean v., p. 28 Briggs v. Briggs, pp. 200. 227, 245, 291 Briggs v. Rochester, p. 161 Brigham. Dorsey v., p. 173 579 TABLE OF CASES CITED' Bright, Arnold v., p. 374 Bright, Bowen v., p. 308 Bright v. Com., p. 338 Brimhall v. Van Campne, p. 28 Brinsmaid, Jones v., p. 156 Briscoe, Wager v., p. 109 Brisenden v. Chamberlain, p. 161 Brockett, Adams v., p. 126 Brockins, U. S. v., p. 338 Bronson, Brown v., pp. 88, 104 Bronson, Porchler v., p. 27 Brooklyn, Agneau v., p. 338 Brooks, Blandin v., p. 163 Brooks, Blondin v., p. 190 Brooks, Littlefield v., p. 160 Brook v. Brook, pp. 13, 16 Brown, Beach v., p. 147 Brown, Fidelity v., p. 185 Brown, People v., .p. 49 Brown, Smith v., p. 339 Brown, State v., pp. 15, 19 Brown, Vosburgh v., p. 134 Brown v. Blanchard, p. 374 Brown v. Boulden, p. 161 Brown v. Bronson, pp. 88, 104 Brown v. Brown, pp. 82, 178, 219, 231, 238, 254, 264, 289, 318, 321, 376 Brovn v. Clark, pp. 84, 274 Brown v. Fifield, p. 139 Brown v. Fletchers Est, p. 243 Brown v. Joiner, p. 97 Brown v. Kalamazoo Circuit Judge, p. 330 Brown v. Parker, p. 26 Brown v. Thompson, p. 325 Brunson, Holmes v., p. 131 Brush, Gerardo v., p. 370 Bryant v. Kelton, p. 29 Bryne v. Gypsum Plaster & Stuc- co Co., p. 367 Bucholz v. Bucholz, p. 191 Buchoz v. Walker, p. 91 Buckingham, Tootie v., p. 25 Buckingham v. Buckingham, pp. 107, 138 Cabell v. Cabell, p. 154 Cadler, People v., p. 28 Cadwalader v. Howell, p. 160 Caille Bros. Co. v. Saginaw Circuit Judge, p. 326 Buckley & Douglas Lumber Co^ Greacen v., p. 300 Budlington v. Munson, p. 21 Budlong, Bassett v., p. 80 Buford v. Buford, p. 25 Buhler v. Jennings, p. 128 Bullock v. Bullock, p. 21 Bunbury, Weimer v., 243 Bunker v. Paquette, pp. 107, 108,. 118 Burdeno v. Amperse, pp. 75, 80,. 137 Burgess v. Burgess, p. 314 Burgess v. Circuit Judge, p. 324 Burgess v. Mandell, p. 325 Burham, Benedict v., p. 89 Burhg v. Poupard, p. 304 Burke, Com. v., p. 336 Burke, Johnson v., p. 300 Burkhardt v. Walker, pp. 108, 109- Burk v. Burk, p. 202 Burlage v. Burlage, pp. 225, 226 Burlin v. Shannon, pp. 161, 162 Burnham, Reeg v., p. 376 Burocher v. Degre, p. J3 Burrall v. Bender, pp. 85, 86 Burr v. Burr, p. 259 Burt v. Burt, p. 220 Burt v. McBain, p. 75 Burt, Ring v., p. 110 Burton v. Anderson, p. 29 Burton, Spears v., p. 21 Burtch v. McGibbons, p. 109 Burtis v. Burtis, p. 206 Busch v. Fisher, p. 371 Bush v. Com., p. 336 Bushnell, Shafer v., pp. 35, 38 Busthman, Hoffman v., p. Ill Butcher v. Bank, p. 26 Butcher v. Butcher, p. 91 Butler, Whiting v., p. 374 Byles, Southern v., p. 290 Byrne v. Gyps\im Plaster & Stuc- co "Co., p. 362 Byschlay v. Wagoner, p. 115 Cairnes v. Cairnes, p. 169 Caldwell v. Jones, p. 129 Qalender v. Olcott, p. 294 Gale v. Davis, p. 171 California, Hurtado v., p. 321 580 TAISI.K OF TASKS Calkins. Cameron v., pp. 358, 363, 364 Calla.uhan. l>arby v., p. 132 Cambridge. Pickering v., p. 161 Cameron, Sheridan v., p. 109 Camden v. Belgrade, p. 68 Cameron v Calkins, p. 358, 363, 364 Campbelle, R. R. Co. v., p. 25 Campbelle v. Crampton, p. 15 Campbell v. Campbell, pp. '31, 80. 85 Campbell v. White, pp. 128, 132 Campion v. Kille, p. 28 Camp v. Camp, p. 254 Canfield v. Brigg City of Erie, p. 364 Canfield v. Canfield, p. 228 Cannaday v. Lynch, p. 337 Cannon, Dean v., p. 161 Ci.mrell, McVey v., p. 134 Capital Ins. Co., Miller Brewing Co. v., p. 25 Carley v. Fox, p. 128 fanner v. Hubbard, pp. 370, 371 Carnahan v. Carnahan, p. 250 Carney v. Gleissner, p. 144 Carpenter v. Carpenter, p. 140 Carpenter v. Hood, p. 303 Carrale v. People, p. 14 Carrano, Ramond v., p. 176 Carrauthers v. Humphrey, p. 86 Carroll v. Carroll, p. 65 Carroll, Frolich v.. pp. 109. 131 Carstens v. Hanselman, p. 76 Carter v. Carter, p. 188 Cartwright v. Govvan, p. 63 Cary v. Cary, p. 183 Case, People v., pp. 156, 160 Case v. Case, pp. 228, 343, 376 Case v. Dewey, p. 374 Casey v. Casey, p. 267 Caton, Farrand v.. p. 112 Caverly, Arthur v., p. 141 Cave v. Cave, pp. 202, 203, 204 Central Car Co., Dewey v., p. 297 Central Mich. Savings Bank. Sher- wood v., pp. 343, 376 Chace, In re., p. 10 Chace v. Chace, p. 178 Chadwick. Port Huron v.. p. 374 Chadwick v. Walsh, p. 374 Chaffee v. Chaffee. p. 227 chamberlain, Brisenden v., p. 161 chamberlain v. Lyell, p. 110 Chamber of Commerce v. Good- man, p. 133 Chambers, Hill v., pp. 83, 84, 274 Chambers, Lake Shore & M. S. R. R. Co. v., p. 364 Chambers v. Prince, pp. 160, 161 Champion, Adams v., p. 374 Chandler v. Chandler, p. 254, Chapman, Clow v., p. 147 Chapman v. Chapman, pp. 34, 35, 162 Chapman v. Colby, p. 28 Charlotte v. Chouteau, p. 28 Chase, Mowry v., p. 27 Chase v. Angel, p. 104 Chase v. Michigan United Ry. Co., p. 370 Cheever v. Wilson, pp. 33, 162 Cherry, Love v., pp. 160, 161 Chestnut v. Chestnut, p. 144 Chicago & N. W. R. R. Co., Horn v., p. 27 Chicago & N. W. R. R. Co., Pierce v., p. 27 Chicago & R. R. Co. v. Wiggins Ferry Co., pp. 26, 27 Chicago & W. M. R. R. Co., Grand Rapids v., p. 363 Chouteau, Charlotte v., p. 28 Chouteau v. Pierre, p. 28 Christensen, In re., pp. 160, 189 Christina v. Russell, p. 25 Church v. Anti Kalsomine Co., p. 327 Church v. Hubbart, p. 29 Circuit Judge, Adams v., p. 297 Circuit Judge, Burgess v., pp. 324, 360 Circuit Judge, Culver v., pp. 325, 360 Cfrcuit Judge, Grand Rapids & Ind. R. R. Co. v., pp. 325, 326 Circuit Judge, Hollands v., p. 327 Circuit Judge, Hulan v., pp. 356, 357, 361 Circuit Judge, Kaiser v., p. 360 Circuit Judge, Lake Shore R. R. Co. v.. pp. 325, 360 Circuit Judge, Moreland v.. p. 365 Circuit Judge, Muskegon^Booming Co. v., p. 326 TAKLK OF CASES CITED Circuit Judge, Parker v., p. 325 Circuit Judge, Pettinger v., p. 360 Circuit Judge, Roach v. pp. 325, 360 Circuit Judge, Thompson v., p. 297 Circuit Judge, Voight Brewing Co. v., p. 325 Circuit Judge, Walker v. p. 330 Circuit Judge, Wilcox v., pp. 262, 348, 350 Circuit Judge, Wilkins v. pp. 325, 360 Clancey v. Clancey, pp. 50, 277 Clanton v. Barnes, p. 138 Clapp v. Clapp, p. 202 Clare v. Clare, p. 204 Clark, Berger v., p. 133 Clark, Brown v., pp. 84, 274 Clark, McCurdy v., p. 374 Clark, Miller v., p. 250 Clark, State v., p. 338 Clark v. Clark, pp. 14, 153, 154 Clark v. Ettinge, p. 25 Clark v. Pinnegan, p. 338 Clark v. O'Rourke, p. 300 Clark v. Sable, p. 374 Clark v. State, p. 338 Clark v. Wiles, p. 374 Cleaver, Park v., p. 133 Cleaver v. Bigelow, p. 108 Clements v. Lacey, p. 161 Cline v. Cline, pp. 203, 204 Clinton v. State, p. 336 Closser, Haden v., p. 370 Clover, Drake v., p. 138 Clow v. Chapman, p. 147 Cobbs v. Fire Association, p. 376 Coburn v. Coburn, p. 164 Coddington v. Coddington, p. 161 Coffman v. Coffman, p. 185 Coghland v. S. C. Ry. Co., p. 29 Cohen v. Daniels, p. 160 Cohn, Donkel v., p. 336 Colburn v. Colburn, p. 213 Colby, Chapman v., p. 28 Colby, Larrabee v., p. 132 Coleman, Hilliker v., p. 374 Coleman, M. C. R. R. Co. v., p. 75 Coles v. Coles, p. 175 Cole v. Cole, pp. 108, 197 Collins, Shumacher v., p. 115 Collins v. Ashland, p. 161 Collins v. Haft, p. 133 Collins v. Wassell, p. 138 Colter v. State, p. 336 Colton v. Rupert, pp. 294, 297 Colvin v. Currier, p. 134 Colvin v. Reed, pp. 39, 162 Colwell, Barnard v., p. 374 Com., Bright v., p. 338 Com. v. Burke, p. 336 Com., .Bush v., p. 336 Com.. White v., p. 336 Combs, Cox v., p. 20 Comfort v. Robinson, p. 82 Commercial Nat. Bk. v. Gaukler, pp. 356, 357, 361 Commonwealth, Barclay v., p. 175 Commonwealth v. Dowdigan, p. 281 Commonwealth v. Lane, pp. 13, 19 Commonwealth v. Littlejohn, p. 21 Commonwealth v. Stevens, p. 178 Comstock, Moses v., p. 28 Comstock v. Comstock, pp. 106, 110, 117 Conant, Mich. Mutual Life Ins. Co. v., p. 374 Concordia Fire Ins. Co., Hall v., p. 375 Cone v. Cone, p. 211 Conklin, Deviries v., pp. 126, 128, 137, 140, 143 Conklin v. Foster, p. 107 Conley, Bemis v., p. 86 Conn v. Conn, p. 20 Connecticut &c. Ry. Co., McLeod v., p. 29 Conner v. Shepherd, p. 84 Connery, Popp v., p. 131 Connor v. Jochen, p. 298 Cqustantine, Bank of, v. Jacobs, pp. 117, 119 Continental Mut. F. Ins. Co., Rand v., p. 28 Converse, Dickey v., pp. 81, 117 Coolidge, Wilson v., p. 75 Cook v. Cook, pp. 35, 38, 184 Coon v. Coon, pp. 178, 226 Cooper, Krone v., p. 160 Cooper, Tompkins v., p. 25 Cooper v. Beers, p. 161 Cooper v. Cooper, pp. 110, 125, 212, 227, 229, 288 Coplinger v. The David Gibson, p. 28 x 582 I \I-.I.K OK CASKS riTKI' Coni.-li i v. Cornelia, p. 176 Cornish v. Cornish, p. L'l". Corrif \ <>rri<>. pp. 239, 276 Cotuvll. Macomber v., pp. 366, 357, 361 County Clerk. Kalamazoo Gazette Co. v.. p. 57 Court of Sessions. People ex. rel. Forsyth v.. p. 281 Covert v. Morrison, p. 96 Cowles. Smith v., p. 300 Cowles v. Cowles, p. -17 , Cox, St. Clair v., p. 252 Cox v. Combs, p. 20 Cox v. Cox, pp. 36, 212, 280. 288 Cox v. Morrow, p. 28 Crain v. r. S.. p. 322 Crampton. Campbelle v., p. 15 Crandall's Est.. In re., p. 183 Crane, In re., pp. 262, 263 Crane, Allen v., p. 118 Craney, Lynch v., p. 371 Crary v. Crary, p. 204 Cravens v. Cravens, p. 162 Crawford v. State, p. 22 Creech v. Creech, p. 230 Creyts v. Creyts, pp. 230. 249, 254 Crichton v. Crichton, p. 259 D Dailey v. Dailey, p. 239 Dainesse v. Hale, p. 29 Dake Engine Mfg. Co. v. Hurley, p. 371 Damon v. Damon, p. 240 Damon v. Deeves. p. 135 Danforth v. Danforth, p. 216 Daniels, Cohen v., p. 160 Daniels v. Royce, p. 134 Danville 1st Nat. Bk. v. Cunning- ham, p. 26 Darby v. Callaghan, p. 132 Dart, Walsh v., p. 27 Darveau. Pat node v.. p. 110 Dashbrook v. Dashbrook, p. 227 Davenport, Tazewell v., p. 160 Davenport. Toll v.. p. 112 Davidson v. Davidson, pp. 259, 277 Davis. Calf v.. p. 171 Davis. Johnston v.. p. 376 Davis. Maynard v.. p. 91 Crippen v. Morrison, p. 86 Crittenden v. Schermerhorn, p. 374 Crookshank, Benedict v.. p. 374 Croon. Smith v., pp. 160. 161 Crosby, Eastman v., p. 28 Crosby v. Huston, p. 29 Crossman, Vanmeter v., p. 376 Cross v. Allen, p. 6 Cross v. Cross, pp. 38,' 39, 202 Crow. Gould v., pp. 35, 36 Crowner v. Crowner, p. 201 Crow v. Crow, p. 215 Cfyer, Weaver v., p. 21 Cullaton, Singer Mfg. Co. v., p. 142 Cullen v. Harris, p. 112 Culver v. Circuit Judge, pp. 325, 360 Cuness. Barney v., p. 156 Cunningham, Danville 1st Nat. Bk.^v., p. 26 Curran v. Rowley, p. 25 Currier, Colvin v., p. 134 Currier, Caster v., p. 26 Curtis, Greenwood v., p. 15 Curtis v. Trowe, p. 129 Cushraan, Fiske v., p. 125 Cutler, Wilt v., p. 28 Davis, McCreary ?., pp. 40, 159, 163 Davis, Rhoades v., p. 91 Davis v. Davis, pp. 167. 175, 212, 259 Davis v. Headley. p. 26 Davis v. Lane, p. 25 Davis v. State, p. 337 Davison v. Shanahan. p. 375 Dawell, People v., pp. 32. 33. 222, 288. 297 I>awson, Black v., p. 371 Dawson v. Dawson, pp. 196. 219 Dayton v. Dayton, p. 374 Day v. Hottingham, p. 173 Dean, Stringer v.. p. 325 Dean v. Cannon, p. 161 DeBevard, Pelan v.. p. 107 DeBodes Case. p. 29 Deeves, Damon v.. p. 135 Degre, Burorher v., p. 13 DeGroff. Wright v.. p. 90 583 TABLE OP CASES CITED DeHerlan v. DeHerlan, p. 168 Deinzer, Boylan v., p. 16 Deitzman v. Mullin, p. 147 Dei,v. Habel, pp. 87, 112 DeKraft, Barney v., p. 38 De la Rama v. De la Rama, pp. 9, 172 Delliber v. Delliber, p. 259 DeLong v. Muskegon Booming Co., p. 375 Delor v. Delor, pp. 82, 229, 244, 264 DeMeli v. DeMeli, pp. 32, 161 Demill v. Moffat, p. 374 Deming v. McGill, pp. 33, 34 Dempster v. Stephen, p. 28 Denison, Thompson v., p. 376 Dennick. Matter of, pp. 31, 32 Dennison v. Smith, p. 297 Demiis v. Dennis, pp. 170, 204, 205 Derfy v. McClurg, p. 138 Derr, See v., p. 374 Des Champlain v. Pes Champlain, p. 244 Desenberg, Bates v., p. 374 Desneyer v. Jordan, p. 76 Detroit, Beecher v., p. 161 Detroit Board of Education v. Wayne County Treasurer, p. 373 Detroit, City of, Gadd v., p. 372 Detroit G. H. & M. R. R. Co., Hughes v., p. 337 Detroit L. & N. R. R. Co., McCam- mon v., p. 85 Detroit Savings Bk. v. Truesdall, pp. 343, 376 Detroit & M. R'. R. Co., Ladue v., p. 86 Devanbaugh v. Devanbaugh, pp. 207, 208 Deville v. Widoe, pp. 106, 114 Deviries v. Conklin, pp. 126, 128, 137, 140, 143 Bewey, Case v., p. 374 Dewey, Lumber Co. v., p. 181 Dewey, People v., p. 26 Dewey v. Central Car Co, p. 297 DeWolunbrun, Baptiste v., p. 28 Deyoe v. Superior Court, p. 169 Dickey v. Converse, pp. 81, 117 Dickinson v. Beal, p. 336 Dickinson v. Dickinson, p. 189 Dickinson v. Dustin, p. 339 Dickinson v. Seaver, p. 374 District Court, 2nd, McKinn v., p. 181 District Court, State v., p. 180 District Court, Worthington v., p. 181 Ditson v. Ditson, p. 35 Diveley, Boyer v., p. 14 Doan v. Feather's Estate, pp. 129, 133 Dodge, Thomas v., p. 106 Doe, Sessions v., p. 28 , Doerr v. Forsythe, pp. 35, 36 Doe v. Eslava,\p. 28 Doe v. Roe, p. 145 Dolph v. Norton, p. 368 Dolson v. Midland Co. R. R. Co., p. 125 Domitzer, German Soc. v., p. 159 "Donkel v. Cohn, p. 336 Donoghue, Hanley v., pp. 26, 27 Donovan, Hockenberry v., pp. 76, 77, 91 Donovan, Rouse, Hazzard & Co. v., p. 322 Donovan v. Donovan, p. 170 Dorsey v. Brigham, p. 173 Dostumian, Aslanian v., p. 28 Dougherty v. Snyder, p. 161 Doughty v. Doughty, p. 37 Douglass, Monroe v., p. 28 Dowdigan, Commonwealth v., p. 281 Dowell, People v., p. 160 Dowling v. Salliott, p. 81 Downer, Frakee v., p. 135 Doyle, Harpold v., p. 172 Drake v. Clover, p. 138 Drake v. Drake, p. 182 Drake v. Kinsel, pp. 106, 111 Draper v. Jackson, p. 125 Draper v. Stowell, p. 132 Driscoll v. People, p. 339 Dudley, Blake v., p. 176 Duekstad v. Duekstad,.pp. J65, 193 Duffles v. Duffles, p. 145 Duke v. Duke, pp. 164, 165 Dulin v. Dulin, p. 186 Dumarsley v. Fishley, p. 13 Dunbar, Mason v., p. 145 Dunham v. Dunnam. pp. 32, 34, 35, 160, 164 Dunn v. Dunn, pp. 174. 200, 228, 287 584 i \i;u: i. r . - rn:i- Dupres, Askew v.. , Durfee, Pulling v., p. 97 Durland v. Durland, p. 174 Burning v. Hastings, p. 21 Durye, Mills v., p. 25 Dustin, Dickinson v., p. 339 I)ii.\si;i(l v Duxstad, p. 163 Dye v. Dye, p. 183 Dye v. Mann, pp. 106, 110, ill, 115 Dyson v. Sheely, p. Ill E Eager v. 1'rico. p. 307 Eagle v. Smylie, pp? 110, 112 Earle v. Earle. p. 114 Eastnuin v. Crosby, p. 28 Eaton, Hunt v., p. 75 Eaton v. Eaton, pp. 20, 68, 181, 216 Eaton v. Hasty, pp. 24, 222 Eaton v. Knowles, p. 130 Eberle's Est., Barber v., p. 132 Edison v. Edison, pp. 249, 318, 321 Edwards v. McEnhill, p. 128 Eggerth v. Eggerth, p. 259 Elder, Reel v., pp. 24, 39, 222 Eldred, Ryerson v., p. 343 Eldred v. Eldred, pp. 21, 36, 223 Electric Co. v. Morris, p. 109 Ellerbusch v. Koegel. p. 176 Elliott, Hovey v., p. 321 Elliott, Vermont Sav. Bk. v., pp. 112, 115, 119 Elliott v. Elliott, pp. 156, 167 Ellison v. Martin, p. 36 Ellis v. Ellis, p. 259 Ellis v. Maxon, p. 27 Elmore v. Johnson, p. 176 Elzas v. Elzas.-p. 212 Emerson v. Shaw, p. 21 Emery v. Airth, p. 302 Emmert, Thompson v., pp. 24, 222 Emmons' Est. In re, pp. 121, 122, 124- Emmons v. Emmons, pp. 201, 203, 257 Emory v. Lord. pp. 128. 131, 143 Engleman v. Kngleman, p. 204 Engle v. Hall, p. 374 Ennis v. Smith, p. 29 Enterprise Foundry Co. v. Iron Moulders' Union, p. 268 Erickson, v. Mich. Land & Iron Co., p. 374 Erkenbrach v. Erkenbrach, p. 252 Erkfitz, Hall v., p. 109 Krnst v. Ernst, p. 141 Erskine, St. James v., p. 371 Ervay v. Ervay, p. 318 Eslava, Doe v., p. 28 Etter, People v., p. 54 Ettinge, Clark v., p. 25 Eubanks v. Banka, p. 13 Evans, Kempster v., p. 253 Evans v. Evans, pp. 203, 215 Evans v. G. R. L. & D. R. R. Co., p. 114 Evans v. Reynolds, p. 14 Evans v. Sutherland, p.. 374 Evening News Assn., People v., p. 376 Everman v. Gill. p. 27 Ewing v. Ainger, p. 376 Ewing v. Bailey, p. 336 Fagan, Roberts v., p. 174 Fairbanks. Lum v.. p. 358 * Fairchild v. Fairchild, p. 37 Farmer's and Merchant's Bk., Intyre v., p. 130 Farmers' Mutual Fire Ins. Wilday v., p. 374 Farnham v. Farnham, pp. 220, Farquar, Nissen v., p. 176 Farrand v. Caton, p. 112 F;UT v. Sherman, p. 80 Feather's Est., Doan v., pp. 129, 133 Me- Felcher, Foster v., p. 132 Felt v. Felt. pp. 37, 163 Co., Fenton v. Reed, p. 68 Fera v. Fera. p. 215 259 Ferguson, Artman v., p. 129 Ferguson v. Ferguson, p. 244 Ferguson v. Wilson, p. 370 Iff TABLE OF CASES CITED Ferris, Fletcher v., p. 25 Fidelity v. Brown, p. 185 Field, Adams v., p. 376 Field, Stebbins v., p. 374 Fifield, Brown v., p. 139 Filer v. Fiter, pp. 178, 314 Finnegan, Clark v., p. 338 Fire Association, Cobbs v., p. 376 Firth, Holler v., p. 338 Firth v. Firth, p. 161 Fischer v. Fisher, p. 202 Fisher, Auditor General v., p. 81 Fisher, Busch v., p. 371 Fisher v. Meister, p. 110 Fisher v. Provin, p. 80 Fishley, Dumarsley v., p. 13 Fiske v. Cushman, p. 125 Fitzgibbons' Est., In re. pp. 23, 66, 67, 156, 195 Flannagan v. Flannagan, pp. 50, 67, 330 Fleming, Galbraith v., pp. 84, 85 Fletchers Est., Brown v., p. 243 Fletcher v. Ferris, p. 25 Flower v. Flower, p. 37 Flynn v. Flynn, p. 182 Flynn v. Kalamazoo Circuit Judge, p. 119 Foley v. Grand Rapids & Ind. R. R. Co., p. 326 Foote, Moore v., p. 143 Foote, Pennywit v., pp. 24, 222 Ford v. Ford, p. 21 Fore, Marx v, pp. 24, 222 Forsythe, Doerr v., pp. 35, 36 Foster, Conklin v., p. 107 Foster v. Felcher, p. 132 Foster v. Hall, p. 161 Fowler, Maxted v., p. 375 Fowler v. Fowler, p. 313 Fox, Carley v., p. 128 Fralsey v. Downer, p. 135 Frame v. Thormann, p. 263 Francis, Ocean Ins. Co. v., p. 29 Franklin v. Franklin, pp. 160, 178, 180, 216 Fratley v. Fratley, p. 144 Fredenburg v. Turner, p. 374 Free, McLeod v., p. 82 Freeman v. Freeman, pp. 201, 202 Freeman, Wolrich v., p. 14 French v. Ryan, p. 370 Friedley, State v., p. 173 Fritz, Winegar v., pp. 356, 357, 361 Frolich v. Blackstock, pp. 110, 368 Frolich v. Carroll, pp. 109, 131 Froman v. Froman, pp. 238, 313 Frost v. Vought, p. 45 Fry, State v., p. 154 Fuller v. Fuller, pp. 219. 336 Fuller v. Hubbard, p. 98 Fuller v. Jackson, p. 300 Fyock's Estate, p. 39 G Gadd v. City of Detroit, p. 372 Gadsey v. Monroe, p. Ill Gage, Stimson v., p. 15 Gaines, Patterson v., p. 13 Galbraith v. Fleming, pp. 84, 85 Galloway, Harvey v., p. 79 Galloway v. Glenn, p. 25 Gantz v. Toles, p. 128 Garcia v. Garcia, p. 10 Gardiner v. Manchester, p. 21 Gariepy, Giles v., p. 29 Garneau, Joly v., p. 268 Garner v. Garner, pp. 34, 37 Garnett v. Garnett, p. 267 Gas Light Co., Knowles v., pp. 24, 222 Caster v. Currie, p. 26 Gaters v. Madelley, p. 125 Gates, Harris v., p. 133 Gaukler, Commercial Nat. Bk. v. pp. 356, 357, 361 Gavigan v. Scott, p. 79 Gebhard v. Gebhard, p. 39 Geiger v. Greiner, p. 118 Gellen, Roster v., pp. 94, 112 Geller, Pulte v., pp. 112, 117 George, Herschfeldt v., p. 110 Gerardo v. Brush, p, 370 Gerber v. Upton, p. 116 German Soc. v. Domitzer, p. 159 German v. German, p. 229 Gernard ' v. Gernard, p. 147 Getz v. Getz, p. 182 Gibbons v. Livingston, p. 25 Gibson, The David, Coplinger v., p. 28 Gibson v. Gibson, p. 14 Gi, In re, p. 316 586 OF \si:s Gilbert v. Gilbert, p. 185 Giles v. Gariepy, p. 29 Giles. State v., p. 280 Cilhun v. Boynton, p. 128 Gillespie v. Beecher, pp. 127, 128 Gillett v. Gillett, p. 70 Cill v. Everman. p. 27 Oilman v. Oilman, pp. 24, 161, 222 Girdler, People v., p. 48 Gitt, Bowersox v., p. 26 Gladwin, Taylor v., p. 245 Gleissner, Carney v., p. 144 Glenn, Galloway v.. p. 25 Glover v. Alcott. pp. 77, 127 Goff v. Thompson, p. 80 Goldbeck v. Goldbeck, p. 215 Golding v. Golding, p. 219 I Goldman. Kujeck v., p. 144 Goldsmith v. Goldsmith, pp. 197, 237, 313 Goodman, Chamber of Commerce, l> 133 Goodman v. Goodman, p. 227 Goodman v. Shipley, p. 132 Gordon, Vanorman v., p. 25 Gordon v. Gordon, p. 186 Gordon v. Tyler, p. 297 Goss, Williams v., p. 219 Gould v. Crow, pp. 35, 36 Gould v. Gould, p. 170 Gourley v. Gourley, p. 219 Gowan, Cartwright v., p. 63 Graff's Estate, In re, p. 89 Graham v. Graham, p. 259 Graham v. Trimmer, p. 161 Gram v. Wasey, pp. 363, 364 Grand Rapids L. & D. R. R. Co., Evans v., p. 114 Grand Rapids, Thayer v., p. 375" Grand Rapids v. C. & W. M. R. R. Co., p. 363 Grand Rapids & Ind. R. R. Co. v. Circuit Judge, pp. 325, 326 Grand Rapids & Ind. R. R. Co., Foley v., p. 326 Grand Trunk R. R. Co., Sherrill v., p. 325 Grand Trunk R. R. Co., Thomas v. p. 28 Grant, Hubbell v.. p. 143 (Inmt. Lambertson v., p. 25 Graves v. Battle Creek, p. 371 Graves v. Graves, pp. 174, 179 Graves v. Niles, pp. 306, 307 Gray, Barton v.. p. 300 Gray, Roby v., p. 375 Gray, Stevenson v., p. 16 Gray v. Gray, pp. 214, 215 Greacen v. Buckley & Douglas Lumber Co., p. 300 Great Falls Water Co., Soyer v., p. 21 Great Western Ry. Co. v. Miller, p. 27 Greely St. Bk., Newton v., pp. 25, 26 Green v. Green, pp. 199, 200, 287, 291 Green v. VanBuskirk, p. 25 Greenwood v. Curtis, p. 15 Gregg, Phillips v., p. 14 Gregory v. Gregory, p. 32 Gregory v. Oakland Motor Car Co. p. 78 Grego v. Grego, p. 179 Greilick v. Rogers, p. 303 Greiner, Geiger v., p. 118 Greiner v. Klein, pp. 86, 92 Grey, O'Donnell v,. p. 130 Griffin, Ross v., pp. 238, 313 Griffin, Van Storch v.. p. 40 Griffin v. Griffin, pp. 171, 239 Griffin v. Johnson, p. 110 Griffin v. Nichols, Sheppard & Co., pp. 106, 117 Griffith v. Griffith, pp. 206. 207 Grizzard, Heennon v., p. 161 Groger v. Groger, p. 204 Grover & Baker S. M. Co., Water- town Ins. Co. v., p. 110 Guibert, Lloyd v. p, 29 Guilleaume, Munroe v., p. 28 Gulick v. Loder, p. 25 Gypsum Plaster & Stucco Co., Byrne v., pp. 362, 367 H Haas, Portage Lake & L. S. S. Haddock v. Haddock, pp. 34, 41, Canal Co. v., p. 364 160, 163 Habel, Dei v., pp. 87, 112 . Hayden v. Closser, p. 370 587 TABLE OF CASES CITED Hafford, Hascall v., p. 161 Hafford, Herscall v., p. 188 Hagar v. Reclamation District No. 108, p. 321 Haggart v. Morgan, p. 161 Haggerty, Lumley v., p. 89 Haines, Hines v., p. 197 Haines v. Haines, pp. 194, 223, 237, 313, 314 Haire, Jennison v., p. 300 Hairston v. Hairston, pp. 160, 161 Hair v. Hair, p. 217 Hale, Dainesse v., p. 29 Halladay v. Mathewson, p. 110 . Hall, Collins v., p. 133 Hall, Matter of, p. 14 Hall, Engle v., p. 374 Hall, Foster v., p. 161 Hall, People v., p. 339 Hall, Sullivan v., p. 371 Hall, Ware v., p. 107 Hall v. Concordia Fire Ins. Co., p. 375 Hall v. Erkfitz, p. 109 Hall v. Hall, pp. 161, 212, 226 Hall v. Marshall, pp. 85, 86 Hallopeter, In re, p. 191 Hamilton v. Hamilton, pp. 39, 245 Hammond's Estate, Rayl v., p. 375 Hammond v. Hammond, p. 314 Hammond v. Wells, p. 109 Hanberry v. Hanberry, p. 162 Hanchett v. McQueen, p. 110 Hancock v. Hancock, p. 34 Hanley v. Donoghue, pp. 26, 27 Hanna, Worthington v., p. 27 Hanselman, Carstens v., p. 76 Hanson, Karn v., p. 114 Hanson, King v., p. 147 Hardeman, Harris v., p. 321 Hardenberg v. Hardenberg, p. 81 Harding v. Alden, pp. 34, 35, 161 Harding v. Harding, pp. 159, 162, 215 Hard v. Hard, p. 160 Hargroves v. Thompson, p. 21 Harkness v. Hyde, p. 252 Harpold v. Doyle, p. 172 Harral v. Harral, p. 14 Harrington, King v., p. 297 Harrington v. Wands, p. 373 Harris, Cullen v., p. 112 Harrison v. Harrison, pp. 70, 240 588 Harris, Wallace v., p. 110 Harris v. Balk, p. 25 Harris v. Gates, p. 133 Harris v. Hardeman, p. 321 Harris v. Harris, pp. 38, 65 Hartford Ins. Co. v. Owen, p. 297 Hartigan v. Hartigan, p. 192 Hartingh v. Circuit Judge, p. 305 Hart v. Lindsey, p. 160 Harvey v. Galloway, p. 79 Harwood, Territory v., p. 183 Hascall v. Hafford, p. 161 Hastings, Durning v., p. 21 Hasty, Eaton v., pp. 24, 222 Hatcher, Peet v., p. 25 Hathon v. Lyon, p. 83 " Hattle, Hiblish v., pp. 34, 36 Haug, Sullivan v., p. 363 Hawkins v. Ragsdale, pp. 34, 36 Hayes, Nichols v., p. 138 Hayes, Webber v., p. 370 Hayes v. Hayes, p. 160 Hayes v. Ionia Circuit Judge, pp. 325, 360 Hayes v. Livingstone, p. 90 Hayes v. Rollins, p. 16 Haymond v. Haymond, p. 189 Haynes v. Nowlin, p. 147 Haynor v. Haynor, p. 190 Haywood v. Johnson, p. 325 Hazelton v. Hazelton, p. 230 Headley, Davis v., p. 26 Heasley, Bear v., pp. 33, 222 Heath, Bradshaw v., p. 38 Heath v. Heath, p. 186 Heaton, Rape v., pp. 26, 27 Hebel v. Amazon Ins. Co., p. 297 Hebron v. Hebron, p. 172 Hedden v. Hedden, p. 203 Heennon v. Grizzard, p. 161 Hein's Estate, p. 39 Heinzeman v. Heinzeman, p. 220 Heist v. Heist, p. 259 Hekking v. Pfaff, p. 38 Helwig v. Lascowski, p. 339 Henderson v. Henderson, p. 267 Henrick, Miller v., p. 29 Henrietta Mining and Milling Co. v. Johnson, p. 252 Henry, Owens v., p. 252 Henry v. Blackburn, p. 134 Hepburn v. Warner, p. 129 Herall v. McCabe, p. 145 TABLE OF CASKS CITKI' Heraty, Philip v., pp. 278, 279 Herrick v. Herrick, pp. 200, 201 202, 203, 287 Herrick, Williams v., p. 21 Herscall v. Hafford, p. 188 Herschfeldt v. George, p. 110 Hervey v. Hervey, p. 161 Hestler v. Hestler, p. 147 Hews v. Hews, p. 302 H. G., J. G. v., p. 207 Hibbard, Amphlett v., pp. 108, 110, 115 Hibbard, Peck v., p. 29 Hiblish v. Hattie, pp. 34, 36 Mickey, Bennett v., p. 358 Hicks, Torrens v., p. 296 Hicks v. Skinner, p. 161 Higgins, Lacon v., p. 29 High, In re, p. 161 Hill, Auditor General v., p. 376 Hillakey v. Hillakey, p. 91 Hillard v. Baldwin, p. 182 Hilliker v. Coleman, p. 374 Hill, Maynard v., pp. 67, 152 Hills v. State, p. 14 Hill v. Chambers, pp. 83, 84, 274 Hill v. Hill, pp. 176, 325, 360 Hilton v. Stewart, p. 172 Hinchman, Ohio v., p. 26 Hinchman, Watson v., p. 301 Hinds v. Hinds, p. 161 Hines v. Haines, p. 197 Hinkle v. Lovelace, p. 163 Hiram v. Pierce, p. 13 Hirshfield v. Waldron, pp. 76, 132 Hitchcock, Stanton v., p. 106 Hitchcock v. Hitchcock, p. 21 Hitchcock v. Misner, pp. 108, 109, 115 Hoard, Bowles v., pp. 85, 86, 114, 246 Hobbs, Mills v., pp. 106, 114 Hockenberry v. Donovan, pp. 76, 77, 91 Hodgkinson v. Hodgkinson, p. 147 Hoff v. Hoffr PP. 236, 258, 291 Hoffman, People v., p. 338 Hoffman v. Busthman, p. Ill Hoffman v. Hoffman, pp. 33, 160, 165 Hoffman v. Pack, p. 370 Hoffman v. Simpson, p. 21 Hoggin v. Hoggin, p. 21 Holbrook, McCormick v., p. 134 Hollands v. Circuit, p. 327 Holler v. Firth, p. 338 Holmes, Adkins v., p. 16 Holmes v. Brunson, p. 131 Holmes v. Holmes, pp. 21, 147, no Holthoefer v. Holthoefer, p. 228 Hoock v. Sloman, p. 303 Hood, Carpenter v., p. 303 Hood v. State, p. 33 Hood, Wright v., p. 131 Hoover, Barber v., p. 133 Hopkins, Barkman v., p. 26 Hopkins, Schofield v., p. 106 Hopkins v. Hopkins, p. 162 Horning v. Horning, pp. 226,. 244 Horn v. Chicago & N. W. R. R. Co., p. 27 Horn v. Teft, p. 108 Hosmer, Bentley v., p. 178 Hosmer, Kaiser v., p. 325 Hosford v. Nichols, p. 29 Hottingham, Day v., p. 173 Hough, Soule v., p. 297 Houghton v. Melburn, p. 135 Hounson, Rhead v., pp. 112, 117 Houpt v. Houpt, p. 21 House, Matter of, p. 39 Houseman, Kent Co. Agri. Society v., p. 375 Hovey v. Elliott, p. 321 Hovey v. Smith, p. 139 Howell, Cadwalader v., p. 160 Howe v. Lemon, p. 374 Howe v. North, pp. 126, 127 Hewlett, Stafford v., p. 306 Hoxie, Kirkwood v., p. 243 Hoyt v. Hoyt, p. 228 Hroneck v. People, p. 336 Hubbard, Carmer v., pp. 370, 371 Hubbard, Church v., p. 29 Hubbard, Fuller v., p. 98 Hubbard, State v., p. 160 Hubbell v. Grant, p. 143 Hubbel v. McKinnon, p. 326 Hudson v. Kimberley Pub. Co. v. Young, p. 25 Huffman v. Huffman, pp. 186, 267 Hughes v. Detroit G. H. & M. R. R. Co., p. 337 Mulbert, Rea v., p. 26 589 TABLE OF CASES CITED Hulen v. Circuit Judge, pp. 356, 357, 361 Hull v. Augustine, p. 27 Hull v. Webb, p. 26 Humphrey, Carrauthers v., p. 86 Humphrey v. Humphrey, p. 180 Humphrey v. Pope, p. 146 Hunt v. Eaton, p. 75 Hunt v. Hunt, pp. 31, 32, 161, 162, 217 Hurley, Dake Engine Mfg. Co. v., p. 371 Hursh, Jeffcry v., p. 374 Hurtado v. California, p. 321 Hurton, Bowler v., p. 222 Hurtzig v. Hurtzig, p. 204 Huston, Bowen v., p. 24 Huston, Crosby v., p. 29 Hutchinson Mfg. Co., John v. Pinch, p. 376 Hutchins, Peet, v., p. 26 Hutchins v. Kimmel, pp. 13, 14, 48,. 50, 55, 66, 198, 376 Huth, Lindsay v., p. 109 Hyde, Harkness v., p. 252 Indseth, Pierce v., p. 29 Ingersoll v. Ingersoll, p. 215 Ingham Circuit Judge, Seibly v., pp. 245, 250, 251, 254 Ingram v. Ingram, p. 163 Inskeep v. Inskeep, p. 201 Insurnace Co., Paine v., p. 26 Insurance Co. v. McClellan, p 128 Insurance Co v. Montague, p. 79 Insurance Co. v. Resh, pp. 80, 81 Insurance Co. v. Wayne Co. Sav- ings Bk., p. 77 Ionia Circuit Judge, Hayes v., pp. 325, 360 Irby v. Wilson, pp. 38, 162 Iron Co., Kobogum v., p. 13 Iron Moulders Union, Enterprise Foundry Co. v., p. 368 Ishler v. Ishler, p. 219 lyes, Wakefield v., p. 34 Jackson, Draper v., p. 125 ^Jackson, Puller v., p. 300 Jackson, Stevenson v., p. 110 Jackson v. Jackson, pp. 13, 15, 21 Jackson v. Park, p. 126 Jackson v. Winnie, p. 216 Jacobs, Berger v., pp. 74, 79, 146 Jacobs, First Nat. Bank of Con- stantine v., pp. 117, 119 . Jacobs v. Miller, p. 80 Jaffray v. Jennings, p. 296 James, Matter ,of, pp. 34, 35 Jamieson, People v., p. 370 Jamison v. Jamison, p. 178 Jarstfer v. Jarstfer, p. 228 Jasper, Township of, v. Martin, p. Ill Jeffery v. Hursh, p. 374 Jenkins, Stuart v., p. 132 Jenness, People v., pp. 46, 335, 336 Jenness v. Jenness, pp. 161, 162 Jenne v. Marble, pp. 128, 138, 143 Jenney v. Q'Flynn, p. 301 Jennings, Buhler v., p. 128 Jennings, Jaffray v., p. 296 Jennison v. Haire, p. 300 Jensen, Larson v., p. 76 Jeske v. Jeske, p. 207 J. G. v. H. G., p. 207 Joachimstachl, Kaeding v., p. 108 Jochen, Connor v., p. 298 Jochim, Attorney General v., . p- 322 Johnson, Elmore v., p. 176 Johnson, Griffin v., p. 110 Johnson, Haywood v., p. 325 Johnson, Henrietta Mining and" Milling Co. v., p. 252 Johnson, State Bk. of Croswell v., p. 82 Johnson v. Burke, p. 300 Johnson v. Johnson, / pp. 14, 21, 65, 156, 162, 202, 209, 229, 240,. 259, 280 Johnson v. Richardson, p. 107 Johnson v. Rose, p. 374 Johnson v. Smith, p. 161 Johnson v. State, p. 338 Johnson v. Sutherland, p. 128 590 ( \>i.s . rn:i. Johnson v. Turner, p. 161 Johnston v. Davis, p. 376 Johnston, Wickersham v., p. 28 Joiner, Brown v., p. 97 Joly v. Garneau, p. 268 Jones, Caldwell v., p. 129 Jones v. Brinsmaid, p. 156 Jones v. Jones, pp. 33, 144, 306, 307 Jones v. Palmer, p. 27 Jones v. State, p. 338 Jordan, Desnoyer v., p. 76 Jordan v. Jordan, pp. 238, 246 Jossman v. Rice, pp. 106, 110 Joyce, Moore v., p. 133 Joyner v. Joyner, p. 163 Judd, Shorten v., p. 21 Judson v. Judson, pp. 198, 223, 278, 293 Julier v. Julier, p. 185 Just v. State Sav. Bk., p. 130 Kaeding v. Joachimstachl, p. 108 Kaiser v. Circuit Judge, p. 360 Kaiser v. Hosmer, p. 325 Kalamazoo Circuit Judge, Brown v., p. 330 Kalamazoo Circuit Judge, Flynn v., p. 119 Kalamazoo Gazette Co. v. County Clerk, p. 57 Kalamazoo Heat, Light & Power Co,. Kalamazoo v., p. 358 Kalamazoo v. Kalamazoo Heat, Light & Power Co., p. 358 Karn v. Hanson, p. 114 Karre, Opiopio v., p. 172 Kashon v. Kashon, p. 161 Keale v. Keale, p. 201 Kehler, McLaren v., p. 26 Keildsen v. Blodgett. p. 138 Keith v. Stetter, p. 160 Kellam v. Toms, p. 27 Keller v. Keller, p. 180 Kellogg, Rome v., p. 108 Kellogg v. Kellogg, pp. 236, 291 Kellogg v. Putnam, p. 301 Kelly, Schulte v., p. 370 Kelton, Bryant v., p. 29 Kempster v. Evans, p. 253 Kennedy v. Kennedy, p. 217 Kennicutt, Baent v., p. 300 Kent Co. Agri. Society v. House- man, p. 375 Kermott v. Ayer, pp. 27, 28 Kern v. Kern, p. 197 Kern v. Verein, p. 300 Ketcham, Thompson v., p. 29 Kidd. Smith v., p. Ill Kiersy, Trombley v., p. 358 Kikel v. Kikel, p. 212 Kilburn v. Mullen, p. 337 Kilburn v. Woodworth, p. 252 Kilburn. Williams. v., pp. 50, 67 Kille, Campion v., p. 28 Killackey y. Killackey. pp. 93, 98 Kimball, Matter of, p. 39 Kimberley Pub. Co. v. Young, Hudson v., p. 25 Kimbro, Newman v., p. 188 Kimmel, Hutchins v., pp. 13, 14, 48, 50, 55, 66, 198. 376 Kimmel v. Schultz p. 25 King, McCausland v.. p. 131 King, State v., p. 336 King, Thomas v., pp. 35, 36 King v. Hanson, p. 147 King v. Harrington, p. 297 King v. Merritt, pp. 75, 84, 85, 88 King v. Moore, p. 106 King v. Page, p. 133 King v. Wilborne, p. 118 King v" Wilson, p. 108 Kinman, Atwater v., p. 305 Kinney v. Kinney, pp. 184, 215 Kinsel, Drake v., pp. 106. Ill Kippohi. M;itta v., pp. 107, 110 Kirby v. Kirby, p. 317 Kirkpatrick v. Kirkpatrick, p. 181 Kirkwood v. Hoxie, p. 243 Kirkwood, McKenna v., p. 374 Kitchell v. Midget, pp. 96, 128 Kittle. Moshier v.. p. 134 Kleinke v. Noonan, p. 13 Klein. Greiner v.. pp. 86. 92 Klein v. Klein, pp. 239, 278 Kline v. Kline, pp. 37, 162 Klutts v. Klutts, p. 810 Knabb, Bolts v., p. 134 Knapp v. Abel, p. 27 591 TABLE OF CASES CITED Knapp v. Knapp, p. 253 Knapp v. Smith, p. 132 Knapp v. Swaney, p. 109 Knapp v. Wing, p. 147 Knight, Barrett v., p. 24 Knight, Bartlett v., p. 222 Knott, In re, pp. 239, 278 Knowles, Eaton v., p. 130 Knowles v. Gas Light Co., pp. 24, 222 Knowlton v. Knowlton, pp. 34, 35 Kobogum v. Iron M. Co., pp. 13, 66 Koch v. Koch, pp. 93, 182 Koegel, Ellerbusch v., p. 176 Kohn v. The Renaissance, p. 28" Kopack v. People, p. 65 Koster v. Gellen, pp. 94, 112 Kraft v. Kraft, pp. 228, 244 Kraft v. Raths, p. 375 Kroll v. Kroll, p. 77 Krone v. Cooper, p. 160 Kruger v. La Blanc, pp. 117, 118, 119, 120 ^Krussman v. Krussman, p. 170 Kujeck v. Goldman, p. 144 Kundinger v. Kundinger, p. 246 Kurtz, Stevenson v., p. 115 Kyle, Thompson v., p. 138 LaBlanc. Kruger v., pp. 117, 118, 119, 120 Lacey, Clements v., p. 161 Lacey v. Lacey, p. 31 Lacon v. Higgins, p. 29 Ladue v. D. & M. R. R. Co., p. 86 LaFevre, LaMont v., p. 118 Lake Shore & M. S. R. R. Co. v. Chambers, p. 364 Lake Shore & M. S. R. R. Co. v. Circuit Judge, pp. 325, 360 Lambert, Blanchard v., pp. 65, 68 Lambert, People v., pp. 27, 28, 49 Lambertson v. Grant, p. 25 Lambert v. Weber, p. 375 Lammis v. Wightman, p. 26 Lament v. La Fevre, p. 118 Lamont v. Lamont, pp. 163, 165, 171 Lando, In re, p. 9 Land v. Land, p. 173 Lane, Commonwealth v., pp. 13, 19 Lane, Davis v., p. 25 Lanhan v. Lanhan, p. 263 Lansing Bowen v., p. 82 Lapworth v. Leach, p. 143 Larison v. Larison, p. 144 LaRivier v. LaRivier, p. 14 Larraway; West v., pp. 128, 135, 143 Larson v. Jensen, p. 76 Larrabee v. Colby, p. 132 Lascowski, Helwig v., p. 339 Lasere v. Rochereau, p. 321 Latham v. Latham, pp. 203, 213 Lawler v. Lawler, p. 244 Lawrence v. Bolton, p. 307 Lawrence v. Morse, p. 108 Lawrence v. Nelson, pp. 160, 174 Leach, Lapworth v., p. 143 Leak v. Leak, p. 167 Leathers v. Leathers, p. 177 Leavitt v. Leavitt, pp. 45, 196, 256,. 257 Lee, Rayner v., p. 84 Lee v. Lee, p. 191 Lee v. R. R. Co., p. 337 Legg v. Legg, p. 126 Leighton, Walker v., p. 217 Leith v. Leith, p. 32 LeMay v. Wickert, p. 138 Lemon, Howe v., p. 374 Lena wee Circuit Judge, Me Wil- liams v., pp. 236, 291 Leonard, Stephens v., p. 117 Leonard, Stout v., pp. 160, 161 Leonard v. Leonard, pp. 84, 210 Leonard v. Pope, p. 146 Leonard v. Snow, p. 76 Lester, L. A. Plant v., p. 114 Lester v. Sutton, p. 374 Letts v. Letts, pp. 143, 240 Levering v. Levering, pp. 214, 215 Levison v. Blumenthall, p. 25 Lewis' App., p. 81 Lewis v. Lewis, p. 203 Libby v. Berry, p. 144 Licthenheim, Londoner v., p. 336- Ligare v. Semple, pp. 90, 91, 95 Lindsay v. Huth, p. 109 Lindsey, Hart v., p. 160 Lindsfelt, St. Sure v., p. 32 592 T.U'.I.E OF CASKS riTKI' Lines, Earth v.. p. 76 Litowiteh v. Litowitch. p. 32 Littlefleld v. Brooks, p. 160 Littlejohn. Commonwealth v., p. L'l Liverpool &c. Steam Co. v. Phenix Ins. Co., p. 29 Livingston Circuit Judge. Singer v.. pp. 325, 360 Livingston, Gibbons v., p. 25 Livingston, Hayes v.. p. 90 Livingstone Probate Judge, Bliss v .. p. 97 Livingston v. Superior Court, p. 26S Lloyd, State v., p. 191 Lloyd v. Guibert, p. 29 Lloyd v. Matthews, p. 27 Lockhart v. White, p. 65 Lockwood v. Lockwood, p. 147 Loder, Gulick v., p. 25 Lofvander y. Lofvander, pp. 244, 245 Logan v. Logan, p. 145 Londoner v. Licthenheim, p. 336 Long, Bauer v., p. 110 Long, McFulton v., p. 25 Long v. Ryan, p. 161 Loomis. People v., p. 14 Lord, Emory v., pp. 128, 131, 143 Lorenz v. Lorenz, p. 207 Lorimer v. Lorimer, p. 198 Loring v. Thorndike, p. 14 Lott v. Lott, p. 116 Lougardyke v. Lougardyke, p. 144" Louis Appeal, p. 111 Lovejoy, Perry v., pp. 55, 148 Lovelace, Hinkle v., p. 163 Love v. Cherry, pp. 160, 161 Lozo v. Southerland, pp. 107, 108, 109. 115 Lucas, Swartout v., p. 318 Lucas, Strother v., p. 29 . Luce, Thurstin v., p. 374 Ludington v. Melandy, p. 374 Luebebe v. Thorp, p. 134 Lumber Co. v. Dewey, p. 181 Lumber Co. v. Wyrembolski, p. 110 Lumley v. Haggerty, p. 89 Lum Lin Ying, In re, p. 14 Lum v. Fairbanks, p. 358 Luttermoser v. Zeuner, p. 82 Ly.ell, Chamberlain v., p. 110 Lyle, Bebee v., p. 91 Lynch, Cannaday v., p. 337 Lynch v. Craney, p. 371 Lynch v. Lynch, pp. 212, 215 Lynde v. Lynde, pp. 33, 252 Lynn, Salem v., p. 160 Lyon, Hathon v., p. 83 Lyon v. Lyon, p. 156 Lyon v. Smith, p. 325 Lyster v. Lyster, p. 220 M McAllister, Knights of Maccabees v.. p. 50 McBain, Burt v., p. 75 McBee v. McBee, p. 219 McCabe. Herall v., p. 145 McCammon v, D. L. & N. R. R. Co., p. 85 McCarthy v. McCarthy, p. 204 McCausland v King, 131 McClain. Pratt Land Co. v., p. 138 McClain v. McClain, p. 186 McClanahan v. McClanahan, p. 258 McCleary v. Bixby, p. 108 McClellan, Brengal v., p. 25 McClellan, Insurance Co. v., p. 128 McClintic, Sauer v., p. 300 McClurg, Derfy v., p. 138 McClung v. McClung, pp. 200, 201, 228, 246, 250 McConnell v. McConnell, p. 171 M< Cormick v. Holbrook, p. 134 McCreery v. Davis, pp. 40, 159, 165 M (Curdy v. Alaska &c. Commer- cial Co., p. 28 MeCurdy v. Clark, p. 374 McDc-ed v. McDeed, p. 14 McDonald v. Baltimore &c. R. R. Co.. p 26 McDonald v. McDonald, p. 267 McDonald v. McKinnon, p. 376 McDonald v Smith, p. 300 McDuffeo v. McDuffee, p. 228 McEnhill, Edwards v., p. 128 McEwan v. Zimmer, pp. 33. 593: TABLE OF CASES CITED. McFee v. South Carolina Ins. Co., p. 29 McFulton v. Long, p. 25 McGhee, Morgan v., p. 14 McGibbons, Burch v., p. 109 McGill v. Deming, pp. 33, 34 McGill v. McGill, p. 219 McGuckin, University of Mich, v., p. 68 McGuire v. People, p. 337 McHenry v. Bracken, p. 14 Mclmyre v. Farmer's and Mer- chant's Bk.. p. 130 McKay, Thompson v., p. 358 McKee v. \\ilcox, pp. 106, 107, 110, UK McKelvey v. McKelvey, p. 247 McKenna v. Kirkwood, p. 374 McKenzie v. McKenzie, p. 184 McKinnon, Hubbel v., p. 326 McKinnon, McDonald v., p. 376 McKihn v. 2nd Dist. Court, p. 181 McLaren v. Kehler, p. 26 McLaughlin, People v., pp. 58, 59 McLennan v. McLennan, p. 185 McLeod v. Connecticut &c. Ry. Co., p. 29 McLeod v. Free, p. 82 McMurray v. McMurray, p. 189 McNeal, Scott v., p. 322 McNeil v. Perchard, p. 29 McQuaid v. McQuaid, p. 216 McQuaid, People v., p. 28 McQueen, Hanchett v., p. 110 McReynolds, Martin v., p. 301 McSherry v. McSherry, p. 177 McVeigh v. U. S., p. 321 McVey v. Cantrell, p. 134 McWilliams v. Lenawee Circuit Judge, pp. 236, 291 Maccabees, Knights of v., McAl- lister, p. 50 Maclean v. Scripps, p. 376 Macomber v. Cottrell, pp. 356, 357, 361 Maddox, Nichols v., p. 176 Madelley, Gaters v., p. 125 Magahay v. Magahay, p. 219 Magoon, Williams v.; p. 131 Magowan v. Magowan, p. 32 Magrath v. Magrath, pp. 212, 217 Maguire v. Maguire, pp. 161, 162 Mahons v. Mahons, p. 219 Maier v. Circuit Judge, p. 330 Mailhot v. Turner, p. Ill Major, Miller v., p. 6 Malsch, People v., p. 280 Maltby v. Plummer, p. 375 Manchester, Gardiner v., p. 21 Mandell, Burgess v., p. 325 Mann, Dye v., pp. 106, 110, 111, 115 Manwaring v. Powell, p. 80 Marble, Jenne v., pp. 128, 138, 143 Marble v. Marble, pp. 200, 287 March v. March, p. 268 Marshall, Babcock v., p. 26 Marshall, Hall v., pp. 85, 86 Martin, Ellison v., p. 36 Martin, Meads v., pp. 76, 132 Martin Lumber Co., Muskegon v., p. 375 Martin, Smith v. pp. 76, 126, 127 Martin, Township of Jasper v., p. Ill Martin v. Martin, pp. 15, 16, 19, 167, 210, 213 Martin v. McReynolds, p. 301 Martin v. Thison's Est., p. 252 Marvin, Tong v., pp. 77, 79, 83, 84, 274 Marx v. Fore, pp. 24, 222 Maslen v. Anderson, pp. 243, 254 Mason v. Dunbar, p. 145 Mason v. Mason, pp. 22, 173, 182 Mason v. Partrick, p. 371 Masterman v. Masterman, p. 174 Matchin v. Matchin, p. 110 Mathewson, Halladay v., p. 110 Matson v. Melcher, p. 110 Matthews, Lloyd v., p. 27 Matta v. Kippola, pp. 107, 110 Maunausau, People v., p. 339 Maxon, Ellis v., p. 27 Maxted v. Fowler, p. 375 Maxwell v. Bay City Bridge Co., p. 374 Maxwell v. Maxwell, p. 192 Mayer, Bank of Commerce v., p. 26 Mayer v. Mayer, p. 203 Mayfield, Tipton v., p. 26 Maynard v. Davis, p. 91 Maynard v. Hill, pp. 67, 152 Meajds v. Martin, pp. 76, 132 Meathe v. Meathe, p. 219 594 i vr.i.i: Of iSKS < m:i> M< 21 Parker, Verill v., p. 133 Parker v. Barron, p. 22 Parker v. Circuit Judge, p. 325 Parker v. Parker, pp. 6, 175 Parker 'v. Stoughton Mill Co., p. 25 Parsons v. Russell, p. 322 Partrick, Mason v., p. 371 Patnode v. Darveau, p. 110 Patterson, Wolcott v., p. 237 Patterson v. Galnes, p. 13 Paul v. Paul, p. 204 Pawling, Wernwag v., p. 26 Payne v. Payne, pp, 203, 206, 207 Pearce v. Pearce, p. 163 Pearson v. Pearson, pp. 13, 15 Peavey v. Peavey, pp. 202/203 Peck v. Hibbard, p. 29 Peck v. Peck, pp. 236, 240, 243, 291 Peck v. Uhl, p. 243 Peet v. Hatchler, p. 25 Peet v. Hutchins, p. 26 Peet v. Peet, pp. 50, 65 Pegg v. Pegg, p. 140 Pelan v. DeBevard, p. 107 Peltier v. Peltier, pp. 223, 242, 243, 248 Pelton v. Pelton, p. 25 Pelton v. Plainer, p. 26 Pendergast v. Pendergast, p. 184 Pendleton, Thomas v., p. 26 Pennegar v. State, pp. 15, 263 Pennier, Ashe v., p. 147 Penniman v. Pierce, p. Ill Pennoyer v. Neff, pp. 252, 322 Pennywit v. Foote, pp. 24, 222 People, Bonker v., pp. 51, 52, 195 People, Carrale v., p. 14 People, Driscoll v., p. 339 People, Hroneck v., p. 336 Peoples Ice Co. v. Steamer Ei- celsior, p. 364 People, Kopack v., p. 65 People, McGuire v., p. 337 People, Olson v., p. 173 People, Snyder v., pp. 73, 105, 110, 127, 232 People, Sokel v., p. 338 Peoples' Sav. Bk., Russell v., pp. 126, 128, 129, 133, 135 People, Weaver v., p. 281 597 TABLE OF CASES CITED People v. Albright, p, 281 People v. Baker, pp. 38, 39, 252 People v. Bennett, pp. 70, 195 People v. Brown, p. 49 People v. Cadler, p. 28 People v. Case, pp. 156, 160 People v. Dawell, pp. 32, 33, 222, 288, 297 People v. Dewey, p. 26 People v. Dowell, p. 160 People v. Etter, p. 54 People v. Evening News Assn., p. 376 People v. Girdler, p. 49 People v. Hall, p. 339 People v. Hoffman, p. 338 Jeople v. Jamieson, p. 370 People v. Jenness, pp. 46, 335, 336 People v. Lambert, pp. 27, 28, 49 People v. Loomis, p. 14 People v. Malsch, p. 280 People v. Maunausau, p. 339 People v. McLaughlin, pp. 58, 59 People v. McQuaid, p. 28 People v. Rawn, p. 119 People v. Reilly, p. 281 People v. Schoonmaker, pp. 63, 64, 70, 156 People v. Sebring, p. 280 People v. Slack, pp. 69, 70, 195, 256 People v. Spoor, p. 173 People v. Stickle, pp. 280, 281 People v. Whipple, p. 338 People ex. rel. Forsyth v. Court of Sessions, p. 281 Perce, Pulman v., p. 138 Perchard, McNeil v., p. 29 Percival v. Percival, pp. 163, 246 Pereira v. Pereira, p. 169 Perkins v. Perkins, pp. 223, 242, 243, 248, 249, 254, 358 Perrin, Stearns v., p. 93 Perry v. Lovejoy, pp. 55, 148 Peters v. Peters, p. 144 Pettiford v. Zollener, pp. 95, 297 Pettinger v. Circuit Judge, p. 360 Pettinger v. Montmorency-Circuit Judge, 325 Pettit v. Pettit, p. 183 Pfaff, Hekking v., p. 38 Phelps v. Phelps, p. 126 Phenix Ins. Co., Liverpool &c. Steam Co. v., p. 29 Phillip v. Heraty, pp. 278, 279 Phillips, Wilcocks v., p. 29 Phillips, Wineman v., p. 135 Phillips v. Gregg, p. 14 Phillips v. Phillips, p. 259 , Phillips v. Stauch, pp. 110, 115 Pickering v. Cambridge, p. 161 Piedemont & Co. Life Ins. Co. v. Ray, p. 25 Pierce, Hiram v., p. 13 Pierce, Penniman v., p. Ill Pierce, Powell v., p. 298 Pierce v. Chicago & N. W. R. R. Co., p. 27 Pierce v. Indseth, p. 29 Pierce v. Pierce, p. 191 Pierre, Chouteau v., p. 28 Pierson, Baker v., p. 86 Pike, Sammons v., p. 160 Pilgrim v. Pilgrim, p. 216 Pinch, John Hutchinson Mfg. Co. v., p. 376 Pinel v. Pinel, pp. 356, 370 Pine v. Pine, p. 181 Pingree v. Pingree, p. 254 Piper v. Piper, p. 191 Place v. Place, p. 280 Plant, L. A., v. Lester, p. 114 Platner, Pelton v., p. 26 Platt's Appeal, p. 39 Platt v. Stewart, pp. 243, 296, 297 Plummer, Maltby v., p. 375 Plymouth, Northfield v., p. 68 Pollock v. Pollock, pp. 204, 215 Pontiac O. & P. A. R. Co., Wilson v., p. 374 Pope, Hurhphrey v., p. 146 Pope, Leonard v., p. 146 Pope v. Pope, p. 175 Popp v. Connery, p. 131 Porchler v. Bronson, p. 27 Porritt v. Porritt, pp. 212, 213, 214, 220, 288 Portage Lake & L. S. S. Canal Co. v. Haas, p. 364 Porter, Taylor v., p. 322 Port Huron v. Chadwick, p. 374 Portland &c. Ry. Co., Palfrey v., p. 28 Post v. Neafie, p. 253 Post v. Post, p. 16 598 TAI'.l.i: or CASKS CITK1> Potter v. Ogden, p. 252 Potts v. Potts, pp. 237, 249, 313 Poupard, Burgh v., p. 304 Powell, Manwaring v., p. 80 Powell v. Pierce, p. 298 Powell v. Powell, p. 197 Power v. Power, p. 215 Power v. Russell, p. 128 Powers, Barnett v., p. 306 Powers, State v., p. 336 Powers, Vanneman v., p. 131 Pratt Land Co. v. McClain, p. 138 Pratt v. Pratt, p. 190 Pratt v. Tefft, pp. 85, 95 Prettyman v. Prettyman, p. 235 Price, Eager v., p. 307 Price v. Price, p. 147 Prince, Chambers v., pp. 160, 161 Pringle v. Pringle, p. 191 Probate Judge, Bacon v., p. 97 Proctor v. Bigelow, p. 55 Proper v. Proper, p. 172 Prosser v. Warnes, p. 32 Provin, Fisher v., p. 80 Pryor v. Pryor, p. 168 Pugh v. Pugh, p. 188 Pullen v. Pullen, p. 204 Pulling's Est., In re, p. 92 Pulling v. Durfee, p. 97 Pulman v. Perce, p. 138 Pulte v. Geller, pp. 112, 117 Purcell v. Purcell, p. 140 Putman, Kellogg v., p. 301 Putney v. Vinton, p. 95 R Race, Snell v., p. 375 Rae v. Hulbert, p. 26 Ragsdale, Hawkins v., pp. 34, 36 Ralston's Appeal, p. 217 Ramond v. Carrano, p. 176 Randall, Spring v., p. 290 Randall v. Randall, pp. 91, 200, 231, 232, 287 Rand v. Continental Mut. F. Ins. Co., p. 28 Rankans, Rice v., p. 28 Rankin v. West, p. 130 Ranney, True v., pp. 14, 15 Ransom v. Ransom, pp. 75, 80, 274 Rape v. Heaton, pp. 26, 27 Raths, Kraft v., p. 375 Rawn, People v., p. 119 Rayl v. Hammond's Estate, p. 375 Ray, Piedemont & Co. Life Ins. Co. v., p. 25 Rayner v. Lee, p. 84 Rea v. Rea, pp. 95, 97, 245, 250 Reclamation District No. 108, Hager v., p. 321 Redgrave, p. 13 Reed, Colvin v., pp. 39, 162 Reed, Fenton v., p. 68 Reed v. Reed, pp. 24, 38, 222, 278 Reeg^ v. Bumham, p. 376 Reel v. Elder, pp. 24, 39, 222 Reeves v. Reeves, pp. 160, 188 Registration, Board of, Warren v., p. 161 Reilly, People v., p. 281 Reinhardt, Traverse v., p. 9 Renaissance, Kohn v., p. 28 Resh, Insurance Co. v., pp. 80, 81 Reske v. Reske. pp. 106, 114 Reynolds, Evans v., p. 14 Reynolds v. Reynolds, pp. 192, 220, 245 Rhead v. Hounson, pp. 112, 117 Rhea, Wingfield v., p. 161 Rhoades v. Davis, p. 91 Rice, Anthony v., p. 35 Rice, Jossman v., pp. 106, 110 Rice v. Rankans, p. 28 Rice v. Rice, pp. 147, 374 Rickard v. Rickard, p. 203 Richardson, Johnson v., p. 107 Richards v. Richards, p. 219 Rich v. Rich. p. 33 Riggs v. Sterling, pp. 106. Ill, 114, 116, 118, 119 , Rigney v. Rigney, p. 33 Rindlaub, p. 184 Ring v. Burt, p. 110 Rivers v. Rivers, p. 211 Roach v. Circuit Judge, pp. 325, 360 Roate v. Roate, p. 170 Robbins, State v., p. 21 Roberts v. Fagan, p. 174 Robinson, Comfort v., p. 82 Robinson, Sherman v., p. 91 Robinson, Showers v., pp. 87, 111, 116 599 TABLE OF CASES CITED Robinson, Taylor v., p. 21 Robinson, Thomas v., p. 108 Robinson v. Baker, pp. 88, 111 Robinson v. Barren, p. 91 Robinson v. Robinson, pp. 180, 257 Robson v. Robson, p. 244 Roby v. Gray, p. 375 Rochereau, Lasere* v., p. 321 Rochester, Briggs v., p. 161 Roche v. Washington, p. 14 Rockwell v. Rockwell, p. 103 Rodgers v. Rodgers, pp. 34, 36, 37 Roe, Doe v., p. 145 Roe v. Roe, pp. 34, 35, 163 Rogers, Greilick v., p. 303 Rogers v. Nichols, p. 185 Rohr v. Stechman, p. 176 Rollins, Hayes v., p. 16 Rome v. Kellogg, p. 108 Root, Barber v., p. 31 Root v. Root, pp. 144, 229, 230, 236, 258 Rorabeck, Barber v., pp. 106, 108 Rose, Johnson v., p. 374 Rose v. Rose, pp. 50, 212, 229, 237, 280, 288, 313 Rosecrance v. Rosecrance, pp. 257, 331 Rossman v. Rossman, pp. 313, 376 Ross, Sebastian v., p. 175 Ross, State v., pp. J.4, 15 Ross, White v., p. 148 Ross v. Griffin, pp. 238, 313 Ross v. Ross, pp. 79, 197, 237 Ross v. Walker, p. 128 Roszell v. Roszell, p. 45 Rouse. Hazzard & Co. v. Donovan, p. 322 Rowley, Curran v., p. 25 Rowley, Sanford v., p. 375 Royce, Daniels v., p. 134 R. R. Co., Lee v., p. 337 R. R. Co. v. Campbelle, p. 25 R. R. Co. v. Mercer, p. 25 Rubino, Matter of, p. 21 Rudolph, Orient Ins. Co. v., p. 25 Rudolph v. Rudolph, p. 169 Rudd v. Rudd, pp. 213, 288 Rumping v. Rumping, pp. 160, 163, 180 Rumsey, Smith v., pp. 110, 117 Runkle v. Runkle, p. 230 Runyan, Taylor v., p. 27 Rupert, Colton v., pp. 294, 297 Russell v. Peoples' Sav. Bk., pp. 126, 128, 129, 133, 135 Russell, Christina v., p. 25 Russell, Parsons v., p. 322 Russell, Powers v., p. 128 Ryan, French v., p. 370 Ryan, Long v., p. 161 Ryerson v. Eldred, p. 343 Ryerson v. Ryerson, p. 144 Sable, Clark v., p. 374 Sager v. Tupper, p. 374 Saginaw Circuit Judge, Caille Bros, v., p. 326 Salem v. Lynn, p. 160 Stlliott, Dowling v., p. 81 Sammia v. Wightman, p. 27 Sammons v. Pike, p. 160 Sanderlin v. Sanderlin, p. 134r Sanford v. Rowley, p. 375 Sapiro's Appeal, p. 138 Sargent, Batchelder v., p. 134 Sargent, Shute v., p. 182 Sargent v. Sargent, p. 217 Sargood v. Sargood, p. 190 Sauer v. McClintic, p. 300 Sanvinet, Walker v., p. 322 Savage v. Scott, p. 160 Savings Bank, Averill v., p. 118 Sawado v. State, p. 338 Sawyer v. Sawyer, pp. 257, 291 Scarpellini v. Atcaeson, p. 125 Schafberg v. Schafberg, pp. 291, 330 Schafer v. Schafer, p. 181 Schermerhorn, Crittenden v., p. 374 Schlachter, State v., p. 38 Schmidt v. Schmidt, p. 235 Schnabel v. Betts, p. 134 Schoenfeld v. Bourne, p. 296 Schoessen v. Schoessen, p. 217 Schofield v. Hopkins, p. 106 Scholer v. Scholer, p. 317 Schoonmaker, People v., pp. 63, 64, 70, 156 600 T.M'.i.i: OF I-XSKS riTKl Schulte v. Kelly, p. 370 Schultz, Kimmel v., p. 25 Schultz v. Schultz, p. 144 Scott, Barrett v., p. Ill Scott, Gavigan v., p. 79 Scott, Savage v., p. 160 Scott v. McNeal, p. 322 Scott v. Scott, p. 6 Scrlpps, Maclean v., p. 376 Scroggins v. State, p. 338 Seaver, Dickinson v., p. 374 Sebastian v. Ross, p. 175 Sebring. People v., p. 280 See v. Derr, p. 374 Seibly, Adams v., p. 254 Seibly v. Ingham Circuit Judge, pp. 245, 250, 251, 254 Selden, Bovine v., p. 116 Semple, Ligare v., pp. 90, 91, 95 Sergent v. Sergent, p. 212 Service's Est., In re, p. 94 Sessions v. Doe, p. 28 Sewall v. Sewall, p. 32 Shackleton, Tillman v., pp. 75, 128, 132, 135, 137 Shafer v. Bushnell, pp. 35, 38 Shafer v. Shafer, pp. 251, 254 Shanahan, Davison v., p. 375 Shank, Mohler v., p. 160 Shannon, Burlin v., pp. 161, 162 Shanwell, Taylor v., p. 21 Sharman v. Sharman, p. 210 Sharp v. Sharp, pp. 22/0, 259 shanuck, State v., pp. 10, 14, 263 Shaw, EmeVson v., p. 21 Shaw v. Shaw, pp. 161, 162 Sheely, Dyson v., p. Ill Sheldon v. Brewer, p. 110 Shepardson, Bassett v., pp. 128, 129 Shepherd, Connor v., p. 84 Sheridan v. Cameron, p. 109 Sherman, Fair v., p. 80 Sherman v. Robinson, p 91 Sherrid v. South wick, p. 110 Sherrill v. Grand Trunk R. R. Co., p. 325 Sherwood v. ('cm ml .Mich. Sav- ings Bank. pp. 343, 376 Shinglemeyer v. Wright, p. 370 Shipley, Goodman v., p. 132 Shoemaker v. Shoemaker, pp. 200, 287 Shorten v. Judd, p. 21 Showers v. Robinson, pp. 87, 111, 116 Shraft, Orr v., p. 107 Shufield v. Shufleld, p. 202 Shumacher v. Collins, p. 115 Shumway v. Stillman, pp. 24, 222 Shute v. Sargent, p. 182 Sibley v. Morse, p. 336 Signey v. Signey, p. 252 Simmonds v. Allen, p. 14 Simons, Bedard v., p. 368 Simons v. Simons, p. 203 Simpson, Hoffman v., p. 21 Simpson v. Simpson, p. 215 Sims v. Sims, p. 9 Singer Mfg. Co. v. Benjamin, p. 374 Singer Mfg. Co. v. Cullaton, p. 142 Singer v. Livingston Circuit Judge, pp. 325, 360 Sisemore v. Sisemore, p. 216 Sissung v. Sissung, pp. 70, 196, 236, 256, 291 Sistair v. Sistair, p. 9 Skillman v. Skillman, p. 245 Skinner, Hicks v., p. 161 Slack, People v., pp. 69, 70, 195, 256 Slais v. Slais, p. 197 Sloman, Hoock v., p. 303 Sly, Newton v,, p. 86 Small v. Small, p. 267 ^Smith, Dennison v., p. 297 Smith, Ennis v., p. 29 Smith, Hovey v., p. 139 Smith, Johnson v., p. 161 Smith, Knapp v., p. 132 Smith, Lyon v., p. 325 Smith, McDonald v., p. 300 Smith, Mitchell v., p. 134 Smith, Oviatt v., p. 22 Smith's Est., In re, pp. 94, 374 Smith, Starkeweather v., p. 127 Smith, Walker v., p. 134 Smith, Wheeler v., pp. 92, 114 Smith. Wright v., p. 374 Smith v. Brown, p. 339 Smith v. Cowles, p. 300 Smith v. Croon, pp. 160, 161 Smith v. Kidd, p. Ill Smith v. Martin, pp. 76. 12 601 TABLE OF CASES CITED Smith v. Morehead, p.- 208 Smith v. Rumsey, pp. 110, 117 Smith v. Smith, pp. 14, 32, 33, 34, 38, 70, 161, 195, 220, 235, 254, 313 Smith v. Waalkes, p. 254 Smith v. Walker, p. 376 Smith v. Woodworth, p. 14 Smylie, Eagle v., pp. 110, 112 Smyth Homestead, p. 107 Snell v. Race, p. 375 Snow, Leonard v., p. 76 Snyder, Dougherty v., p. 161 Snyder v. Nations, p. 336 Snyder v. People, pp. 73, 105, 110, 127, 232 Snyder v. Snyder, pp. 86, 92 Sodini v. Sodini, p. 179 Sokel v. People, p. 338 Somers v. Somers, p. 266 Soper v. Soper, p. 200 Soule v. Hough, p. 297 South Carolina Ins. Co., McFee v., p. 29 South Carolina Ry. Co., Coghland v., p. 29 Southerland, Lozo v. pp. 107, 108, 109, 115 Southern v. Byles, p. 290 Southwick, Sherrid v., p. 110 Southwick v. Southwick, p. 217 Sower's Appeal, p. 215 Soyer v. Gt. Falls Water Co., p. 21 Sparks v. Sparks, p. 188 Spaulding, White v., p. 88 Spaulding v. Steel, p. 161 Spears v. Burton, p. 21 Speier v. Opper, pp. 128, 129 Spencer, In re, p. 268 Spencer v. Spencer, p. 171 Spinney v. Spinney, p. 177 , Spinning, 'Trowbridge v., p. 26 Spoor, People v., p. 173 . Spring v. Randall,, p. 290 Stackhouse v. Stackhouse, p. 203 Stafford Mfg. Co., Vohlers v., p. 365 Stafford v. Hewlett, p. 306 Stafford v. Stafford, p. 236 Stahl, Bear v., p. 90 Stanley v. Stanley, p. 220 Stantoh v. Hitchcock, p. 106 Stanwood v. Stanwood, p. 125" Starbock v. Starbuck, p. 39 Starkeweather v. Smith, p. 127 State Bk. of Croswell v. Johnson,, p. 82 State, Clark v., p. 338 State, Clinton v., p. 336 State, Colter v., p. 336 State, Crawford v., p. 22 . State, Davis v., p. 337 State, Hills v., p. 14 State, Hood v., p. 33 State, Johnson v., p. 338 State, Jones v., p. 338 State, Murphy v., p. 336 State, Pennegar v., pp. 15, 263- State, Sawado v., p. o38 State, Scroggins v., p. 338 State, Taylor v., p! 34 State, Thompson v., p. 34 State, Van Fossen v., p. 32 State, Weinberg v., p. 14 . State, Welsh v., p. 338 State, Werner v., p. 338 State v. Behrman, p. 14 State v. Bell, p. 15 State v. Blue Earth County Court,. p. 179 State v. Boettner, p. 176 State v. Bordentown, p. 160 State v. Brown, pp. 15, 19 State v. Clark, p. 338. State v. Diet. Court, 'p. 180 State v. Friedley, p. 173 State v. Fry, p. 154 State v. Giles, p. 280 Statfe v. Hubbard, p. 180 State v. King, p. 336 State v. Lloyd, p. 191 State v. Meyer, p. 337 State v. Morse, pp. 160, 163, 189 State v. Moy Lock, p. 29 State v. Newberry, p. 280 State v. Parker, p. 21 State v. Powers, p. 336 State v. Robbins, p. 21 State v. Ross, pp. 14, 15 State v. Schlachter, p. 38 State v. Shattuck, pp. 10, 14; 26S State v. Supr. Ct, p. 191 State v. Templeton, p. 184 State v. Tutty, p. 15 State v. Walker, pp. 20,. 21 602 TAI-.I.I: IK CASKS TII:I. State v. Washington, p. 338 State v. Westmoreland, pp. 159, 163 State v Wheeler, p. 191 State v. Williams, p. 336 State v. Woodmansee, p. 280 State v. Yoder, p. 179 State Sav. Bk., Just v., p. 130 St. Clair-Tunnel Co., Turner v., lp. 325, 326 OX, p. 262 St. James v. Erskine, p. 371 St. Sure v. Lindsfelt, p. 32 Stauch, Phillips v., pp. 110, 115 Steamer Excelsior, Peoples' Ice Co. v., p. 364 Stearns v. Perrin, p. 93 Stebbins v. Field, p. 374 Stechman, Rohr v., p. 176 Steel, Spaulding v., p. 161 Steere v. Vanderberg, p. 296 Steffens v. Steffens, p. 204 Steinnegar v. Steinnegar, p. 138 Stein v. Stein, p. 212 Steller v. Steller, pp. 318, 320, 321 Stephen, Dempster v., p. 28 Stephens v. Leonard, p. 117 Stepper, Miller v., pp. 88, 91, 97 Sterling. Riggs v. t pp. 106, 111, 114, 116, 118, 119 Stetter, Keith v., p. 160 Stevens, Commonwealth v., p. 178. Stevenson v. Gray, p. 16 Stevenson v. Jackson, p. 110 Stevenson v. Kurtz, p. 115 Stevens v. Stevens, p. 244 Stewart, Hilton v., p. 172 Stewart, Platt v., pp. 243, 296, 297 Stewart, Whipple v., p. 301 Stewart v. Stewart, pp. 216, 217, 232 Stickle, People v., pp. 280, 281 .Stiehr v. Stiehr, p. 236 Stillman, Shumway v., pp. 24, 222 Stimson v. Gage p. 15 Stone, Tucker v., p. 363 Stone v. Montgomery, p. 138 Stone v. Stone, pp. 164. 175, 180, 239 Story, Adams v., p. 247 Story v. Story, pp. 197, 237. 248, 313 Stout v. Leonard, pp. 160, 161 Stoughton Mill Co., Parker v.. p. 25 Stoughton. Whelply v., pp. 133, 136 Stover, Murphy v., p. 130 Stowell, Draper v.. p. 132 Strait v. Strait, p. 33 Streitwolf v. Streitwolf, p. 32 Stringer v. Dean, p. 325 Strother v. Lucas, p. 29 Stuart v. Jenkins, p. I::.' Stuart v. Stuart, p. 202 Succession of Gabisso, p_176 Sullivan, In re, p. 368 Sullivan v. Hall, p. 371 Sullivan v. Haug, p. 363 Sullivan v. Sullivan, pp. 225, 226, 259 Superior Court, Deyoe v., p. 169 Superior Court, Livingston v.. p. 268 Supreme Court, State v., p. 191 Sutherland, Evans v., p. 374 Sutherland, Johnson v., p. 128 Sutler v. Sutler, p. 179 Sutton, Lester v., p. 374 Sutton v. Warren, pp. 13, 15, 16 Swales, Matter of. p. 39 Swaney, Knapp v., p. 109 Swartout v. Lucas, p. 318 Sweeney v. Sweeney, p. 213 Swiney v. Swiney, p. 243 Sworski v. Sworski, pp. 164, 182 T Tackaberry v. Tackaberry, p. 230 Talmadge v. Talmadge. p. 161 Taylor v. Boardman, pp. 79, 343, :;:; Taylor v. Gladwin, p. 245 Taylor v. Porter, p. 322 Taylor v. Robinson, p. 21 Taylor v. Runyan, p. 27 Taylor v. Shanwell. p. 21 Taylor v State, p. 338 Tazewell v. Davenport, p. 160 Tefft, Pratt v., pp. 85. 95 Teft. Horn v., p. 108 Tefl v. Teft, p. 153 603 TABL OF CASES CITED Templeton, State v., p. 184 Tennant, White v., p. 164 Terrill v. Terrill, p. 167 Territory v. Harwood, p. 183 Terry, Weed v., p. 91 Thayer v. Grand Rapids, p. 375 Thelan v. Thelan, p. 160 Thelen v. Thelen, p. 32 Thison's Est., Martin v., p. 252 Thomas v. Dodge, p. 106 Thomas v. Grand Trunk Ry. Co., p. 28 Thomas v. King, pp. 35, 36 Thomas v. Pendleton, p. 26 Th6mas v. Robinson, p. 108 Thomas, Thompson v., p. 296 Thompson, Brown v., p. 325 Thompson, Goff v., p. 80 Thompson, Hargroves v., p. 21 Thompson, Homestead, p. 107 Thompson, Wells v., p. 13 Thompson v. Benefit Assn., p. 300 Thompson v. Denison, p. 376 Thompson v. Emmert, pp. 24, 222 Thompson v. Judge, p. 297 Thompson v. Ketcham, p. 29 Thompson v. Kyle, p. 138 Thompson v. MvKay, p. 358 Thompson v. Nimms, p. 21 Thompson v. State, p. 34 Thompson v. Thomas, p. 296 Thompson v. Thompson, pp. 34, 35, 170, 236, 291 Thompson v. Tucker-Osborn, pp. 92, 93 Thompson v. Whitman, pp. 24, 164, 165, 222 Thompson v. Williamson, p. 26 Thormann, Frame v., p. 263 Thorn v. Thorn, p. 108 Thorndike, Loring v., p. 14 Thorp, Luebebe v., p. 134 Thorp v. Allen, p. 108 Thrift v. Thrift, p. 187 Throckmorton v. Throckmorton, p. 205 Thurber, Watson v., pp. 80, 129, 135 Thurstin v. Luce, p. 374 Thurston v. Thurston, pp. 34, 36 Tierney v. Tierney, p. 207 Tiffny, Metcalf v., p. 147 Tillman v. Shackleton, pp. 75, 128, 132, 135, 137 Tilton v. Tilton, p. 220 Tipton v. Mayfield, p. 26 Tittabawassee Broom Co., Watts v., p. 374 Tobey v. Tobey, p. 275 Toles, Gantz v., p. 128 Toll, Armitage v., p. 112 Toll v. Davenport, p. 112 Tolfefson v. Tollefson, p. 174 Tompkins v. Cooper, p. 25 Toms, Kellam v., p. 27 Tong v. Marvin, pp. 77, 79, 83, 84, 274 Tootie v. Buckingham, p. 25 Torrans v. Hicks, p. 296 Tracey v. Murray r p. 94 Traverse v. Reinhardt, p. 9 Trigg v. Moore, p. 29 Trimble v. Trimble, p. 21 Trimmer, Graham v., p. 161 Trombley v. Kiersy, p. 358 Trough v. Trough, p. 192 Trowbridge v. Spinning, p. 26 Trowe, Curtis v., p. 129 Truax, Wells-Stone Merc. Co. v.,. p. 25 True v. Ranney, pp. 14, 15 Truesdall, Detroit Savings Bk. v.,. pp. 343, 376 Tucker-Osborn, Thompson v., pp.. 92, 93 Tupper, Sager v., p. 374 Tucker v. Stone, p. 363 Turnbull v. Turnbull, p. 220 Turner, Fredenburg v., p. 374 Turner, Johnson v., p. 161 Turner, Mailhot v., p. Ill Turner v. Muskegoh Machine & Foundry Co., p. 375 Turner v. St. Clair-Tunnel Co., pp; 325, 326 Tutty. S'ate v., p. 15 Tyler Gordon v., p. 297 Tyler v. Tyler, p. 178 604 TAKI.I: or CASKS CITKI- DW, Peck v., p. 243 rhl v. I'hl, p. 240 I'lman v. Ulman, p. 252 i'niversity of Michigan Guckin, pt 68 United States, Grain v., p. 322 United States, Mitchell v., p. i;.i United States Bank v. Men -hants Bank, p. 25 United States v. Brockins, p. 338 United States v. Ortega, p. 29 Upton, Gerber v., p. 116 United States, McVeigh v., p. 321 Utley v. Utley, pp. 226, 228 Vail v. Winterstein, p. 126 Van Akin. Weaver v.. p. 300 Van Buskirk, Green v., p. 25 Van Campne, Brimhall v., p. 28 Vanderberg, Steere v.. p. 296 Vanderberg, Westbrook v., pp. 93, 98 Van Dusan v. Van Dusan, p. 50 Van Deusen v. Newcomer, p. 374 Van Duzer v. Van Duzer, p. 240 Van Fossen v. State, p. 32 Van Haaften v. Van Haaften, p. 197 Van Inwagen v. Van Inwagen, pp. 33, 38, 39, 221 Vanmeter v. Crossman, p. 376 Vanneman v. Powers, p. 131 Vanorman v. Gordon, p. 25 Van Orsdall v. Van Orsdall, pp. 34, 35 Van Storch v. Griffin, p. 40 Van Voorhis v. Bainenall, p. 263 Van Voorhis v. Von Voorhis, p. 204 Verein. Kern v., p. 300 Verill v. Parker, p. 133 Vermont Sav. Bk. v. Elliott, pp. 112. 115, 119 Vershire, Northfleld v., p. 21 Vinsant v. Vinsant, p. 211 Vinton, Putney v., p. 95 Vint on v. Beamer, p. 141 Virolette, Bates v., p. 28 Vohlers v. Stafford Mfg. Co., p. 365 Voight Brewery Co. v. Circuit Judge, p. 325 Vosburgh V. Brown, p. 134 Vought, Frost v., p. 45 W Waalkes. Smith v., p. 254 Wager v. Briscoe, p. 109 Wa.muT v. Wagner, p. 259 Waggoner v. Waggoner, p. 204 Wagoner, Byschlay v., p. 115 Wait v. Bovee, p. 82 Wakefield v. Ives. p. 34 Waldron, Hirchfield v., pp. 76, 132 Waldron v. Waldron, pp. 147, 229 Waifs v. .\V\vbould, pp. 127, 138, 139* Walker, Buchoz v.. p. 91 Walker. Burkhardt v., pp. 108, 109 Walker. Ross v., p. 128 Walker. Smith v., p. 376 Walker, State v.. pp. 20. 21 Walker's Est., p. 168 Walker v. Circuit Judge, p. 330 Walker v. Leighton, p. 217 Walker v. Sauvinet, p. 322 Walker v. Smith, p. 134 Walker v. Walker, pp. 161, 177, 187 Wallace, Matter of, p. 21 Wallace v. Harris, p. 110 Wall v. Williamson, p. 13 Walsh, Chadwick v., p. 374 Walsh v. Dark, p. 27 Walsh v. Walsh, p. 228 Walton v. Walton, p. 219 Wands, Harrington v., p. 373 Ward v. Ward, p. 289 Ware v. Hall, p. 107 Warner, Hepburn v., p. 129 Wanu-r v. Warner, pp. 213, 214, 236. 280. 288, 291 Warnes, Prosser v., p. 32 Warren. Button v. pp. 13, 15, 16 Warren v. Board of Registration, p. 161 TABLE OF CASES CITED Warren v. Warren, pp. 147, 187 Wasey, Gram v., pp. 363, 364 Washington, Roche v., p. 14 Washington, State v., p. 338 Wassell, Collins v., p. 136 Waterman v. Bailey, pp. 358, 363 Watertown Ins. Co. v. G. & B. S. M. Co., p. 110 ' Watkinson v. Watkinson, pp. 160, 163 Watkinson, Wood v., p. 26 Watkins v. Watkins, p. 162 Watson v. Hinchman, p. 301 Watson v. Thurber, pp. 80, 129, 135 Watts v. Tittabawassee Broom Co., p. 374 Watts v. Watts, p. 171 Wayne Circuit Judge, Ayres v., pp. 236, 291 Wayne Circuit Judge, Mincer v., p. 243 Wayne Circuit Judge, Webb v., p. 197 Wayne Co. Savings Bk., Insurance Co. v., p. 77 Wayne Co. Savings Bk., Mutual Benefit Assn. v., p. 126 Wayne Co. Treasurer, Detroit Board of Education v., p. 373 Wayne Probate Judge, Pulling v., p. 97 Weaver, Myers v., p. 109 Weaver v. Cryer, p. 21 Weaver v. People, p. 281 Weaver v. Van Akin, p. 300 Webb, Hull v., p. 26 Webb v. Wayne Circuit Judge, p. 197 Webber v. Hayes, p. 370 Weber, Lambert v., p. 375 Weed v. Terry, p. 91 Weimer v. Bunbury, p. 243 Weimer v. Weimer, p. 184 Weinberg v. State, p. 14 Weiss v. Weiss, p. 239 Weller v. Wheelock, p. 368 Wells' Est., In re, p. 68 Wells, Hammond v., p. 109 Wells-Stone Merc. Co. v. Truax, p. 25 Wells v. Thompson, p. 13 Welsh v. State, p. 338 Werner v. State, p. 338 Wernwag v. Pawling, p. 26 West Bay City, Williams v., p. 300 West, Rankin v., p. 130 West v. Larraway, pp. 128, 135, 143 West v. West, p. 173 Westbrook v. Vanderberg, pp. 93, ^ 98 Westlake v. Westlake, pp. 145, 147 Westmoreland, State v., pp. 159, 163 Wetmer v. Banbury, p. 322 Whale v. Whale, p. 203 Wheeler, Bank of North America v., p. 25 Wheeler, State v., p. 191 Wheeler v. Meyer, p. 375 Wheeler v. Smith, pp. 92, 114 Wheeler v. Wheeler, pp. 177, 191 Wheelock, Weller v., p. 368 Whelply v. Stoughton, pp. 133, 136 Whipfler v. Whipfler, p. 140 Whippen v. Whippen, p. 176 Whipple, People v., p. 338 Whipple v. Stewart, p. 301 White, Campbell v., pp. 128, 132 White, Lockhart v.,' p. 65 White, Miller v., p. 21 White v. Com., p. 336 White v. Ross, p. 148 White v. Spaulding, p. 88 White v. Tennant, p. 164 White v. White, pp. 143, 144, 161, 162 White v. Zane, pp. 79, 129, 139 Whitfield v. Whitfield, p. 217 Whiting v. Butler, p. 374 Whitman, Thompson v., pp. 24, 164, 165, 222 Whitmore v. Whitmore, p. 228 Whitney v. Whitney, p. 144 Wickersham v. Johnson, p. .28 Wickert, LeMay v., p. 138 Widoe, Deville v., pp. 106, 114 Wiggins Ferry Co., Chicago & R. R. Co. v., pp. 26, 27 Wightman, Lammis v., p. 26 Wightman, Samia v., p. 27 Wilcocks v. Phillips, p. 29 Wilcox, McKee v., pp. 106, 107, 110, 118 06 TAI:I.K MI-- TASKS rrncn Wilt-ox v. Circuit Judge, pp. 262, 348, 350 Wilcox v. Nixon, p. 176 \Vilcox v. Wilcox, p. 14 Wilde v. Wilde, p. 207 Wildey v. Farmers' Mutual Fire Ins. Co., p. 374 Wiles, Clark v., p. 374 Wilkinson v. Wilkinson, p. 167 \Vilkins v. Circuit Judge, pp. 325, 360 WillboriK', King v., p. 118 Williams, Algood v., p. 161 Williams. Bourgette v., p. 375 Williams, State v., p. 336 Williams v. Goss, p. 219 Williams v. Herrick, p. 21 Williams v. Kilburn, pp. 50, 67 Williams v. Magoon, p. 131 Williams v. West Bay City, p. 300 Williams v. Williams, pp. 38, 146, 175, 212 Williamson, Thompson v., p. 26 Williamson. Wall v., p. 13 Williamson v. Williamson, p. 205 Willardiv. Willard, p. 190 Willis v. Willis, p. 188 Wilson, Cheever v., pp. 33, 162 Wilson, Ferguson v., p. 370 Wilson, Irby v., pp. 38, 162 Wilson, King v., p. 108 Wilson v. Coolidge, p. 75 Wilson v. Pontiac O. & P. A. R. Co., p. 374 Wilson v. Wilson, pp. 156, 179, 374 Wilson v. Wilson Est., p. 133 Wilt v. Cutler, p. 28 Winans v. Winans, .pp. 160, 163,. 165, 178 Winegar v. Fritz, pp. 356, 357, 361 Wineman v. Phillips, p. 135 \Vintf. Knapp v., p. 147 \Vingfleld v. Rhea, p. 161 Wingo, Booker v., p. 138 Winnie, Jackson v., p. 216 Winship v. Winship, p. 161 Winston v. Winston, pp. 38, 204 Winterstein, Vail v., p. 126 Wolcott v. Patterson, p. 237 Wolfe v Wolfe, p. 147 Wolrich v. Freeman, p. 14 Womack v. Womack, p. 168 Wood, Newbern v., p. 130 Wood v. Watkinson, p. 26 Wood v. Wood, pp. 160, 168, 174,. 213, 313 Woodmansee, State v., p. 280 Woodrow v. O'Connor, p. 29 Woodruff Iron Wks. v. Adams, p. 131 Woodruff v. Young, p. 301 Woodworth, Kilburn v., p. 252 Woodworth, Smith v., p. 14 Woolfenden v. Atkinson, p. 76 Worthington v. Dist. Court, p. 181 Worthington v. Hanna, p. 27 Wright, Shinglemeyer v., p. 370 Wright v. Andrews, p. 27 Wright v. DeGroff, p. 90 Wright v. Hood, p. 131 Wright, Nixon v., p, 253 Wright v. Wright, pp. -21, 32, 33_ 154, 213, 221, 222, 223, 288 Wyrembolski, Lumber Co. v., p. 110 Yale, Owen v., p. 247 Yates v. Yates, p. 192 Yoder. State v., p. 179 Young, Hudson v. Kimberly Pub. v.. p. 25 Young, Woodruff v., p. 301 Young v. Young, p. 189 Youngs v. Youngs, p. 219 Zane, White v.. pp. 79. 127, 139 Zeuner, Luttermoser v., p. 82 - Zimmerman v. Dolph, p. 370 Zimmer. McKwan v., pp. 33, 222 Zoellner, Pettiford v., pp. 95. 297 Zoellner v. Zoellner, pp. 89, 96, 111, 117. 119, 120 . INDKN TO THI: FOKMS or AFFIDAVIT default, want of answer, as to, No. 26 non-appearance of defendant, as to, No. 25 ^ order of publication, as to, No. 15-16 AFFIRMANCE OF MARRIAGE bill for, No. 13 cross-bill and, No. 31 decree of, No. 54 ALIMONY order for, and expenses, No. 41 ANSWER form of, general, No. 30 ANNULMENT OF MARRIAGE bill for, No. 12 decree of, No. 53 APPEAL case on, No. 69 claim of, No. 66 bond on, No. 68 notice of, No. 67 of settling case on, No. 70 of amendments to case on, No. 71 APPEARANCE notice of, No. 20 ATTACHMENT affidavit to obtain, No. 44 order to show cause why, should not issue, No. 45 order for, and commitment, No. 46 ATTORNEY order appointing, to defend, No. 65 BILL FOR DIVORCE bed and board as to, No. 8 divorce procured in another state, No. 10 grounds stated in, being adultery, general forms, No. 1 behalf of wife, No. 2 common law marriage, from, No. 5 conviction of felony, No. 9 desertion, No. 4 extreme cruelty, No. 6 habitual drunkenness, No. 7 physical incapacity, No. 3 refusal to support wife, No. 11 BOND appeal as to, No. 68 notice of application of approval of. No. 67 CASE ON APPEAL form of, No. 69 notice of amendments to, No. 71 610 INDEX TO THE FORMS CERTIFICATE enrollment as to, No. 58 CHANCERY SUMMONS usual form for, No. 14 COMMISSIONER notice of taking proofs before, No. 34 order confirming report of, No. 37 petition for reference to, to take proofs, No. 32 report of, as to alimony, No. 36 COMMITMENT order for, No. 46 CROSS BILL answer and, No. 31 DECREE affirming marriage, No. 54 annulling marriage, No. 53 discharge of, No. 59 order denying discharge of, No. 62 discharging, No. 61 permanent alimony after divorce as to, No. 51 petition for discharge of, No. 60 satisfaction o'f, No. 59 DECREE OF DIVORCE alimony as to, No. 50 bed and board and for alimony, No. 52 reserving question of alimony, No. 49 DEFAULT affidavit of, for want of answer, No. 26 DEFENDANT petition for alimony and expenses by, No. 39 DEMAND payment of temporary alimony as to, No. 43 DISCHARGE decree as to, No. 59 petition for, of decree, No. 60 DIVORCE bed and board and for alimony, No. 52 decree of, and for alimony, No. 50 permanent alimony after, No. 51 reserving question of alimony, No. 49 ENCUMBRANCE injunction to restrain, No. 47 ENROLLMENT certificate of, No. 58 EXPENSES order allowing, to plaintiff, No. 40 petition for, No. 38 INJUNCTION sale or encumbrance of property as to, No. 47 restraint of threatened injury as to, No. 48 INJURY injunction to restrain, No. 48 MARRIAGE decree affirming, No. 54 annulling, No. 53 INDEX TO THE FORMS Ml NON-APPEARANCE affidavit of, No. 25 NOTICE amendments to case on appeal as to, No. 71 appeal and application as to, for approval of bond. No. 67 proofs taken before commissioner as to, No. 34 settlement of case on appeal as to, No. 70 MOTION order granting, to dismiss bill, No. 35 dismissing, No. 21 ORDER appointing an attorney to defend as to, No. 65 allowing temporary alimony and expenses to plaintiff, No. 40 attachment and commitment as to, No. 46 confirming report of commissioner, No. 37 denying discharge of decree, No. 62 re-hearing, No. 57 temporary alimony, No. 42 directing Prosecuting Attorney to appear, No. 63 discharging decree, No. 61 granting leave to file supplemental bill, No. 29 motion to dismiss bill, No. 35 pro-confesso, defendant brought in by publication, No. 24 defendant not appearing, No. 22 defendant not answering, No. 23 re-hearing as to, No. 56 reference to take proofs as to, No. 33 ORDER FOR APPEARANCE, non-resident as to, No. 17 ORDER OF PUBLICATION defendant concealed, No. 19 defendant's residence unknown, No. 18 non-resident defendant, No. 17 ORDER TO SHOW CAUSE attachment should not issue, why, No. 45 PAYMENT demand for, of temporary alimony, No. 43 PETITION alimony and expenses as to, by defendant, No. 39> discharge of decree as to, No. 60 leave to file supplemental bill as to, No. 28 reference to take proofs as to, No. 32 re-hearing as to, No. 55 temporary alimony and expenses by plaintiff as to, No. 38 PLAINTIFF order allowing temporary alimony to, No. 40 petition for alimony by, No. 38 PROPERTY injunction to restrain sale or encumbrance, No. 47 PRO-CONFESSO order of, defendant brought in by publication. No. 24 defendant not appearing, No. 22 defendant not answering, No. 23 PROSECUTING ATTORNEY order directing, to appear, No. 63 report of, No. 64 612 INDEX TO THE FORMS PROOFS order of reference to take, No. 33 PUBLICATION affidavit for order of, Nos. 15 and 16 order of, No. 17 defendant concealed, Nos. 17 and 19 defendant's residence unknown, No. 18 RE-HEARING order for, No. 56 denying, No. 57 petition for, No. 55 REPORT prosecuting attorney as to, No. 64 REPORT OF COMMISSIONER alimony as to, No. 36 order confirming, No. 37 SATISFACTION decree as to, No. 59 SUPPLEMENTAL BILL order granting leave to file, No. 29 petition for leave to file, No. 28 INDEX TO THE TEXT OF MARRIAGE AND DIVORCE. ABANDONMENT wife's, of homestead, 138, 378 ABSENCE domicile effected by, 221 homestead as to, 141 ABSENT PARTY service of, 407 ABSOLUTE DIVORCE granting of, 328, 330 ACTION commencement of, 401 court of equity will entertain to affirm a common law marriage, 281 damages in barring marriage in an action, 387 husband and wife for tort, 191 husband in, for alienation of wife's affections, 196 marriage affirmed in, 281 married woman against a firm of which her husband is a mem- ber, 189 by or against each other, 82 rights of, between husband and wife, 188 assignment of dower as to 96, 97 services of wife as to, 192 void marriage annulled in, 279 wife's, against husband where living separate and apart, 190 money loaned him, 190 wife in, for alienation of husband's affections, 193 ACTIONS TO AFFIRM MARRIAGE v bill to affirm, may be died when validity of marriage is doubted or denied by one of the parties, 404 ACTIONS TO ANNUL MARRIAGE commencement and conduct of, 402 ADMISSIONS AND CONFESSIONS the court will not grant decree upon, alone, 366 ADULTERY cause for divorce being, 283 character of witnesses to prove, 289 court may deny release from, when, 367 defense to charge of, 205 detectives to prove, 290 disposition and opportunity to commit, 285 divorce because of, 283 evidence of frequent private interviews with clergyman not suffi- cient to establish, 286 facts from which, may be inferred, 287 insufficient to establish, 288 614 INDEX TO THE TEXT ADULTERY (Continued ). frequent professional calls by physicians as, to, 286 particeps criminis to prove, 289 competent -witness to prove, 284 prostitutes and procurers to prove, 289 testimony of detectives as proof of, should be corroborated, 290 young children should not be called to prove, 284 AFFIDAVIT contents of, 58 hearing of motions on, 450 order of publication under, 408, 409 party applying for license must make, and file with county clerk, 58 AFFINITY prohibited degrees of, as to marriage, 44 AGENT OF WIFE husband act as, 166 ALABAMA causes for divorce in Alabama, 223 ALASKA causes for divorce in, 224 ALIENS right of dower of, 115 ALIENATION OF AFFECTIONS action for, 190 /#> evidence in action for, 197 homestead effected by, 140 ALIMONY see Permanent Alimony and Temporary Alimony alteration of decree for, 360 amount of temporary, 339 amount to be allowed as temporary depends upon the particular circumstance, 440 decree for, rendered in another state, 375 husband not entitled to, unless authorized by statute, 377 foreclosure of lien for, 359 permanent, 348 questions of guilt not considered on applications for, 439 wife entitled to temporary, 339 desertion by husband, 382 ALIMONY AND EXPENSES procured how, 437 AMENDMENTS decree as to, 466 pleadings as to, 417 ANNULMENT OF MARRIAGE see Marriage actions for, where brought, 18 court will deny when, 364 custody of children as to, 364 grounds for, because of force or fraud, 364 imprisonment as, 302 physical incapacity, 365 suit can be maintained for, only by injured party, 365 who may ask for, 18 l\j>i:\ TO mi: i ANSWER allegations of bill must have an. before setting forth matters in cross-bill, 420 dates, sums and numbers may be expressed in, either in figures or words, 418 default in, 415 facts in, should be stated without repetition, 418 general allegations of, 418 matters charged on information and belief in, 418 paragraphs in, numbered consecutively, |418 supplemental bill as to, 429 ANTE-NUPTIAL CONTRACTS contracts made between persons in contemplation of marriage, 84 dower effected by, 108 enforced in a court of equity, 110 ANTE-NUPTIAL HABITS drunkenness as to, 321 APPEAL bond to stay proceedings pending in, 481 claim of, when to be filed, 479 extension of time for, 480 returns in making, 487 method of settling evidence for, 483 motion to dismiss, 488 notice of, how served, 490 clerk to place cause on calendar, 495 original files in, may be dispensed with, when, 486 return of, by clerk, 485 what to contain, 485 right to, depends upon statute, 487 service of papers on, 489 APPEAL BOND additional, may be required, when, 481 approval of, 481 condition of, 481 notice for application for approval of, 481 penalty of, by whom fixed, 481 APPEAL FROM CONVICTION effect of, by one of the parties to imprisonment. 302 APPEAL TO SUPREME COURT who may appeal, 478 APPEARANCE court may order, of prosecuting attorney, 8372 defendant makes his, 410 jurisdiction conferred by, 30 petition for, to bar dower of incompetent, 125 prosecuting attorney filing, 472 APPRAISAL OF HOMESTEAD making of, 151 new, when, 158 report of, 155 ARGUMENT call of cases for, 498 616 INDEX Ttf THE TEXT AGREEMENT ( Continued ) . opening and closing, 465 notice of, 495 time allowed for, $465 extension of, 465 ARIZONA causes for divorce in, 225 ARKANSAS causes for divorce in, 226 ASSIGNMENT OF DOWER action before, 98, 122 judge of probate may make, 102 ATTACHMENT payment of alimony by, 444 BANKRUPTCY adjudication in, effecting permanent alimony, 359 BARRING DOWER methods of, by wife or widow, 107 BARRING DOWER OF INCOMPETENT disposition of funds as to, 129 guardian to be appointed by probate court, 127 husband cannot be guardian, 127 BIGAMY defense to the charge of, 205 BILLS FOR DIVORCE verification of, how made, 400 BILL OF COMPLAINT allegation of, in annulment of marriage, 403 adultery, 394 desertion, 396 divorce in another state, 397 habitual drunkenness, 397 impotency, 396 imprisonment, 396 non-support of wife, 398 supplemental pleadings, 423 arrangement of, into paragraphs numbered consecutively, 399 causes for divorce should be clearly and concisely stated in, 399 character of physical incompetency or impotency must be stated in, 395 contents of, 284 copy of, to be served when, 411 domicile stated in, 392 facts not alleged in, cannot be made available, 284 frame of, same as in other chancery / cases/399 impotency if incurable stated in, 395 names and ages of children must be stated in, 372, 393 oath of plaintiff in, as to collusion, 337 particular acts stated in, 394 person with whom adultery is committed stated in, 394 preparation and filing of, first step in suit, 399 requirements of, 391 wife may file, in her own name, 338 iM'i:\ TO TIIK ir.xr ('.IT BILL TO AFFIRM MARRIAGE allegations of, 404 BILL TO ANNUL MARRIAGE exhibition of, by whom, 363 idiocy or lunacy, 363 non-age as to, 363 who may file, 363 BRIEFS contents and service, 497 motions in, 494 BRITISH EMPIRE divorce laws of, 6, 211 BURDEN OF PROOF complainant has, in establishing the incurable nature of im- potency, 294 CALIFORNIA causes for divorce in, 227 CANADA divorce laws of, 212 CASE ON APPEAL amendments to, 484 contents of, 483 filing of, with clerk, when, 484 requirements of rules as to, are amendatory, 484 notice of settling, 484 stenographers' notes in, should be furnished by the opposite party, 484 CAUSES FOR ABSOLUTE DIVORCE adultery is a, 284 conviction of crime is a, 291 another state is a, 300 desertion is a, what constitutes, 304 divorce obtained in another state is a, 323 drunkenness is a, 317 foreign divorce obtained by one party is a, 324 imprisonment for three years or more is a, 297 jurisdiction and residence of parties as to, $325 non-support is a, 335a CHANCERY jurisdiction of courts in, 390 verification of pleadings, 420 CHILDREN allowance for support of, may be changed, when, 385 care and custody of, while suit pending, 340 changing of, 385 decree providing for, may be changed, 341 father entitled to, when, 341 final decree, 341 mother entitled to, when, 341 separation of husband and wife as to, 386 legitimacy of, when marriage dissolved by adultery committed by wife, 361 plaintiff should so state his desire for the custody of, 393 statute in regard to custody of, not mandatory, 341 618 INDEX TO THE TEXT CEREMONY marriage, required, 34, 47 CIRCUMSTANTIAL EVIDENCE see Evidence CIVIL CONTRACT marriage more than, 73 CHASTITY previous, as to validity, 43 CLAIM OF APPEAL filing of, and payment of fee, jurisdictional, 482 CLERGYMAN OR MAGISTRATE duty of, 60 marrying without a license, 61 CLERK certificate of marriage filed with, 55, 56 duties of county, 59 . supreme court taxing costs, 499 refusal to give license, 61 CO-HABITATION punishment for, 362 validity shown by, after divorce, 47 COLLUSION dower as to, 123 oath of plaintiff as to, 337 COLORADO causes for divorce in, 228 * COMMISSIONER reference to, 433 COMMON LAW husband and wife at, 78 incestuous marriage at, 71 property rights, 79 COMMON LAW MARRIAGE relation of, may be established without any formal ceremony, 50 COMPETENCY OF PARTIES marriage effected by, 46 married woman as to, 165 COMPLAINT see Bill of CONDONATION cruelty charge effected by, 335 definition of, 335 desertion as to, 312 drunkenness as to, 322 CONFLICT OF LAWS divorce as to, 23 jurisdiction as to, 326 marriage as to, 14, 19 CONNECTICUT causes for divorce in, 229 CONSANGUINITY prohibited degrees of, as to marriage, 44 IMI:\ in i 11 1: i 619 CONSENT marriage dependent upon, $10 obtaining, by fraud, $208 parents or guardians, 11 CONSTITUTION contracts of married women, 159, 160 due process of law, 445 legislative divorce^ in the, 202, 203 CONSTRUCTIVE SERVICE effect of, as to right to alimony, '33 conflict of authority as to, 31 custody of minor children, 34 property rights when decree granted on, 32 remarriage of defendant, 34 jurisdiction as to, 29 CONTRACT capacity to make a marriage, 42 husband not liable for, of wife, 83 CONTRACT OF MARRIAGE see Marriage definition of, 40 distinguishment of, from other contracts, 5 CONTRACTS OF MARRIED WOMEN common law rule as to, 158 constitution and statute as to, 159, 160 effect of the statute as to, 161 executory, capacity to make, 163 husband jointly in, 172 statutory provision, 160 CONVEYANCE each to the other, 88. 184 husband and wife by entirety make, 186 husband to wife, 185 COSTS affidavit of disbursements as to, 499 taxation of, 499 wife entitled to, when, 339 COUNTY CLERK duties of, in relation to marriage license, 59 certificate of marriage, 56 public record, 59 fee of, for services, 59 COVENANTS married women make, 181 CREDITORS claims of, against homestead, 137 wife's estate for husband's debt, 167 CRIME conviction of, as affecting credibility of witness, 462 evidence of marriage in trial for a, 56 CROSS-BILL answer separate from, should not be filed, 420 CRUELTY see Extreme Cruelty 620 INDEX TO THE TEXT CURTESY tenancy by, 90, 186, 374 DAMAGES action for, barring marriage, 387 measure of, withholding dower, 119 DEBTS separate business of married women to make, l73 DECREE amendments to, 466 bed and board, 327 consent of parties, 366 discharging satisfaction of, 4.69 distinction between decree of divorce and decree of nullity, |209 - enforcement of, 470 enrollment of, when, 468 marriage affirmed or annulled by, 209 partition, effecting dower, 101 preparing and settling, 466 recording of, in register of deeds' office, 468 sale of real estate on, 470 settling and signing of, 466 DECREE OF DIVORCE effect of, same as in state where rendered, 25 faith and credit cause of federal constitution as to, 24 provisions of, in lieu of dower, 374 recording of, in register of deeds office, when, 374 remarriage may be forbidden in, when, 372 unnecessary, when, 277 valid in state where rendered, conclusive in all other states, 25 DEEDS husband not joining in, 178, 381 land owned by husband or wife as to, 88 DEFAULT answer in, lacking, 415 defendant not appearing as to, 414 entering of, 415 setting aside of, 416 DEFENDANT appearance of, how made, 410 default of, 414 domicile of, 392 notice of all proceedings served on, after appearance, 413 party against whom application is made should be designated as 391 DELAWARE causes for divorce in, 230 DEMURRERS AND PLEAS abolishment of, 412 DENOMINATIONAL RIGHTS Quakers as to, in ceremony, 53 DESERTION condonation of, 312 ,_ ? constructive, when, .308 i husband and wife in same house as to, 310 justifiable, when, 305 INII:X r> TIII: TI.VI 621 DESERTION (Continued). punishment of husband for desertion, |388 refusal of cohabitation, during, 311 following husband may be, 313 sexual intercourse may be, 315 separation not always, 307 mutual consent in, is not, 309 statutory period of, 305 support will not excuse, 314 DISCLOSURE ON OATH husband may be required to make of property which came to him by the marriage, 346 DISTRICT OF COLUMBIA causes for divorce in, 231 DIVORCE / adultery as to, 283 ante-nuptial impotency not grounds for, when, 291 causes for, and procedure in State of Alabama, 223 Alaska, 224 Arizona, 225 Arkansas, 226 California, 227 Colorado, 228 Connecticut, 229 Delaware, 230 District of Columbia, 231 Florida, 232 Georgia, 233 Guam, 234 Hawaii Ter., 235 Idaho, 236 Illinois, 237 Indiana, 238 Iowa, 239 Kansas, 240 Kentucky, 241 Louisiana, 242 Maine, 243 Maryland, 244 Massachusetts, 245 Michigan, 246 Minnesota, 247 Mississippi, 248 Missouri, 249 Montana, 250 Nebraska, 251 Nevada, 252 New Hampshire, 253 New Jersey, 254 New Mexico, 255 New York, 256 North Carolina, 257 North Dakota, 258 Ohio, 259 622 INDEX TO THE TEXT DIVORCE ( Continued ) . Oklahoma, 260 Oregon, 261 Pennsylvania, 262 Porto Rico, 263 Rhode Island, 264 South Carolina, 265 South Dakota, 266 Tennessee, 267 Texas, 268 Utah, 269 Vermont, 270 Virginia, 271 West Virginia, 272 Wisconsin, 274 Wyoming, 275 conflict of laws as to, 23 decrees for, by consent will not be entered, 366 unnecessary when, 277 domicile for purpose of, 218 dower effecting, 351 effect of, on title of land held by husband and wife, 93 impotency as grounds for, 292 judicial, of marriage, 204 jurisdiction in, cases, 215 legislation on subject of, marriage and, 201 local legislation as to, 199 marriage after, 19 marriages void without, 207 party applying for, plaintiff, 391 physical incompetence as to, 291 subject of, 198 suit for, not a proper proceeding to secure accounting for wife's property, 343 third persons cannot be made parties to suit for, 343 tribunals in matters of, 200 DIVORCE AND ANNULMENT OF MARRIAGE jurisdiction of court of chancery in, 276 DIVORCE CASES ' argument of, 465 fee of prosecuting attorney in, 372 injunctions in, 442 DIVORCE FROM BED AND BOARD absolute divorce granted when, 328, 330 court may revoke decree of, when, 369 decree of, when, 327 effect of, on wife's property and obligations, 380 extreme cruelty as grounds for, 331 purpose of the statute regarding, 329 refusal of husband to support wife a cause for, 335a support when decree of, denied, 369 DIVORCE LAWS OF DIFFERENT COUNTRIES British Empire, 211 Canada, 212 United States, 213 INDEX TO THE TEXT DOCKET motions kept In a, 494 DOMICILE absence as affecting, 221 bill should state, if known, 392 change of, 219 definition of, 216 divorce as to, 217 idiot has same, as his legal guardian, 219 jurisdiction governed by, 28, 214, 215 law fixes, of wife as that of husband, 217 legal ability to require new, 219 minors, idiots and lunatics cannot acquire a new, 219 person can have but one, at same time for same purpose, 216 place of marriage not controlling as to, 215 proof of, 220 residence and, not convertible terms, 216 intentions must both be proved to establish, 219 test of jurisdiction as to, in divorce matters, 215 things necessary in a requirement of new, 219 what constitutes, 216 wife may acquire new, when abandoned or forced to leave hus- band, 217 DOWER ante-nuptial jointure affecting, 108 assent to barring, 109 assignee of widow cannot bring action before assignment of, 98 assignment of, as bar, 103, 122 ejectment as to, 98 award of money in lieu of, 131 barring of, of insane and other incompetent persons, 124 minor, 130 collusive recovery of, 123 commissioners appointed by probate court to set off, 104 contents of, 95 damages where, is withheld, 118 heir has alien land, 121 divorce affecting, 351 ejectment for, 98 exchange of land affecting widow's, 76 incompetent's petition to bar, 125 land aliened by husband as to, 101 liability of widow to contribute from her, to pay portion of in- terest accruing, 98 lunatics', remains same as it was when adjudged non compos mentis, 219 measure of damages for withholding, 419 mortgaged laud as to, 98 new assignment of, if widow Is evicted, 114 partition proceedings affecting, to which claimant is not a party, 107 proceedings to assign, by probate court, 103 wife was not; a party will not cut off her right of, 101 release of, procured by fraud, 107 624 INDEX TO THE TEXT DOWER ( Continued ) . right of, claimed by two or more widows, 132 non-residents and aliens as to, 115 sale of land on execution against husband will not bar, 107 sale under decree of partition will not cut off wife's, 101 taxes paid from, in proportion, 116 tax-title will cut off widows' right of, 107 transfer of, same as any other life estate after assignment, 98 widow's rights of, 96 assignment of, 103 interest in surplus after sale on mortgage foreclosure, 99 widow as to her, under no obligations to await administration proceedings, 103 wife's paroled agreement to release, not valid, 107 wife's right to, upon divorce, based upon statute, 351 woman endowed with, liable for waste committed, 118 maintenance, of house, etc., 116 DOWER IN LAND NOT SEVERABLE widows, may be assigned out of rents, issues and profits, 105 DRUNKENNESS cause for divorce, 317 constant and continuous, 318 DUE PROCESS OF LAW meaning of, within constitution, 445 statutory provisions as to, 445 DUTY OF MAGISTRATE OR CLERGYMAN fill out certificate and return to county clerk is the, 60 EARNINGS common law rule as to wife's, 86 right of married woman to, 86 statutory provisions as to wife's, 85 EJECTMENT dower as to, 98 ELECTION jointure made for benefit of intended wife as to, 111 provision by will of husband for wife to make, 112 what constitutes, 113 widow must make within one year after death of husband, 114 ENCUMBRANCES husband places, on wife's property, 87 injunction restrains, 441 ENROLLMENT certificate of, 468 ENTIRETY statutes relating to, 90, 186, 374 survivorship in land held by, 90 EVIDENCE adultery charge must be proved by competent, 284 certificate of marriage as, 54 charge of adultery may be proved by circumstantial, 284 court may extend time for settling, for appeal, 482 extreme cruelty effected by* 332 license for marriage as, 54 method of settling, for review, 483 IM'i:\ 'in THE TEXT 625 E VI DENCE ( Contin ued ) . reference to take, 432 reputation not sufficient for, {284 settling, for appeal, 482 taking of, 431 EXECUTION collection of alimony of, 358 levy on, as to homestead, 147 sale of land by, aB to barring dower, 107 EXECUTORY CONTRACTS married women in, 163 competency of, 165 EXEMPTION death of husband as to, 142 definition of, 145 equitable interest as to, 137 object of, 135 purchase money mortgage as to, 146 sale for taxes as to, 150 sale on execution as to, 134 EXTREME CRUELTY acts constituting, 333 acts not amounting to, 334 condonation of, 335 evidence to establish, 332 FAILURE TO SUPPORT what constitutes, 335a when justifiable, 335a when not justifiable, 335a FELONY wife's desertion constitutes, when, 389 FLORIDA causes for divorce in, 232 FORCE marriage procured by, 278 FOREIGN DIVORCE interstate comity in, 35 non-recognition of, where no personal service is had, 36 validity of, as dependent upon jurisdiction 'over defendant, 27, 39 FORGIVENESS AND CONDONATION effect of, 368 FRAUD marriage procured by, 278 GEORGIA causes for divorce "In, 233 GOVERNMENT marriage controlled by, 6 GROUNDS FOR DIVORCE see Divorce GUAM causes for divorce in, 234 GUARDIAN consent of, to marriage, 11 jointure of, with husband in conveyance, 128 626 INDEX TO THE TEXT HABITUAL DRUNKENNESS ante-nuptial habit relating to, 321 condonation of offense oft 322 constant and continuous drunkenness not necessary to consti- tute, 318 definition of, 317 occasional indulgence in intoxicating liquor not sufficient to establish, 319 period of indulgence in liquors as to, 320 HAWAII causes for divorce in, 235 HEARING compelling attendance of witnesses on, 456 court may require, 413 cross-examination of opposite party; 455 jury trials on, in divorce cases, 452 notice of, not necessary, 454 petition to bar dower of incompetent as to, 127 proofs on, how taken, 453 supreme court as to, 494 HEIRS payment of dower by, 100 widow may occupy with, if they do not object, 106 HOMESTEAD abandonment of, what constitutes, 138 absence from, not necessarily abandonment, 141 alienation of, 140 report of, 155 claims of creditors against, 137 confirmation of report as to, 156 court to fix location and description of, 154 exemption of, after death of husband, 142 equitable interest, 137 purchase money mortgage, 146 sale for taxes, 150 sale on execution, 134 house on land of another as, 150 land purchased for, 136 occupation of, under contract, 137 joint tenancy or tenancy in common as, 138 legislature cannot add to or take from, constitutional provisions as to, 144 lot with no dwelling house thereon may be, 136 mechanics' liens as to, 139 mortgage of, lawfully obtained, 146 new appraisal of,. when, 158 object of exemption of, 138 officer to make survey of, 148 ownership and occupancy of, 135 proceedings on confirmation of report, as to, 157 right of widow to, when no children, 143 sale of, after survey, 149 rights of deceased person, 153 probate court orders, to pay debts and expenses, 153 selection of, when execution levy is made, 147 IM'i:\ TO THE TEXT 627 HOMESTEAD ( Continued) . selling of, for surplus, 152 statutory definitions of, and exemptions, 145 title of, in fee not necessary, 137 what constitutes, 134 HOMESTEAD RIGHTS OF WIFE OR WIDOW constitutional, provision, 133 HUSBAND abandonment of wife by, 378 agency of, for wife, 166 consent of, to sale of wife's property, 182 conveyance by, of undivided one-half interest to wife, 185 desertion of, by wife, 379 duty of, to support wife, 169 encumbrance by, on wife's property, 87 enforcement of, to support of wife, 383 liability of. on suit on contract made by wife, 83 materials furnished by, used on land of wife, 168 petition by wife to compel support by, 384 punishment of, for desertion, 388 right of, to alimony out of wife's property, 377 creditors of, as against the wife, 167 land of deceased wife, 394 wife's domicile same as, 217 HUSBAND AND WIFE conveyance of, to or for each other, 184 directly to each other, 88 determination by, prior to marriage as to property, 84 land held jointly by, 89 legitimacy of issue, 72 liability of, on joint note, 165 mutual property rights of, 87 relations of, changed by modern legislation, 78 tenants in common results to, upon being divorced, 342 unity of, at common law, 78 IDAHO causes for divorce in, |236 IDIOT domicile of, 219 ILLEGAL MARRIAGE effect of, 21 ILLINOIS causes for divorce in, 237 IMPOTENCY grounds of, for divorce, 292 marriage voidable only for, 296 refusing means of cure for, 295 IMPRISONMENT effect of, on marriage, 281 INCESTUOUS MARRIAGE effect of, on issue of marriage, 16, 17 invalidity of, as common law marriage, 71 prohibited of, 17 validity of, when, 16 void, or voidable, when, |17 628 INDEX TO THE TEXT INCUMBRANCY husband places, on wife's property, 87 injunction restrains, 441 INDETERMINATE SENTENCE effect of, 301 INDEX county clerk to keep an, of marriages, 56 INDIANA causes for divorce in, 238 INDIAN CUSTOMS marriages between members of Indian tribes as to, 70 INJUNCTION applications for, what to contain, 441 object of, in divorce cases, 442 restraining threatened injury by, 442 sale or incumbrance of property by, 441 who to allow, 442 INJURY restraint of threatened, by injunction, 442 INTENTIONS domicile as to, 219 INTERSTATE COMITY foreign divorce as to, 35 limited recognition of, 35 rule laid down in Atherton v. Atherton federal court as to, 39 Haddock v. Haddock as to, 39 \ Pennsylvania as to, 37 South Carolina as to, 38 validity of foreign divorce, 27, 39 INTOXICATING LIQUORS occasional indulgence in, 319 period of indulgence in, 320 IOWA causes for divorce in, 239 ISSUE framing an, 449 JOINTURE election by intended-wife as to, 111 land held by husband and wife in, 89 married woman liable in, 164 JUDICIAL DIVORCE dissolution by, of the marriage tie, 204 JURISDICTION act constituting grounds for divorce will not confer, 215 / annulment of marriage, 276 appearance of defendant as to, 30 conflict of laws as to, 326 constructive service as to, 29 court of chancery has, in actions for divorce, 390 divorce suit as to, 390 domicile of both parties and state of form confer, 28, 214, 215 neither parties in state of forum, 29 one party in state of forum, personal service on other party, 30 IMi:.\ TO THE TKXT '._"' JURISDICTION (Continued). foreign divorces as to, 27 matters of divorce, 200 place of marriage not controlling, as to, 215 residence of parties, 336 JURY TRIALS divorce cases in, 452 KANSAS causes for divorce in, 240 KENTUCKY causes for divorce in, 241 LAND deed to, of husband and wife, 88 effect on, held by husband and wife, 93 homestead as to, 136, 137, 138, 150 widow's dower aB to, 101 LAND CONTRACTS survivorship in, 92 LEGISLATION constitution as to, 144 marriage and divorce as to, 201 modern, as to husband and wife, 20, 78 LEGISLATIVE DIVORCES constitutional provisions concerning, 203 prohibition of, in most of the states, 202 validity of, unless prohibited by constitution, 202 LEGITIMACY OF ISSUE both parents having former husband or wife as to, 72 legal marriage effecting, 277 LEVY execution as to, on homestead, 147 LICENSE blank form of, to be returned to county clerk, 59 contents of, 57 evidence of marriage in, 54 LIEN FOR ALIMONY enforcement of, 352, 357 suit to foreclose, 359 LIFE ESTATE assignment of, 98 LIMITATION OF COURT effect on decree for alimony, 349 LIMITED DIVORCE defense to criminal charge of adultery or bigamy, 205 moral effects of, 206 LOT homestead as to, 136 LOUISIANA causes for divorce in, 242 LUNATICS domicile of, 219 MAINE causes for divorce in, 243 630 INDEX TO THE TEXT MAINTENANCE OF HOME liability of dower to pay for, 116 MANDAMUS publisher entitled to a, to permit reporters to examine records, 59 MARRIAGE annulment of, with evidence, clear and convincing of illegality, 280 fraud or duress, 77 assent of both parties essential to, 43 certificate of, as evidence, 54 county clerk to record, 56 cohabitation no presumption of validity of, 47 competency of parties to, 46 conflicting presumptions as to validity of, 68 conflict of laws as to, 14, 69 consent essence of, 10 obtaining of, by force or fraud, 208 parents or guardians as to, 11 contract of, 5 contractual relation means the actual forming of the, 43 decrees annulling or affirming, 209- definition of, 1, 43 determination of property rights prior to, 84 effect of another spouse living, 45 imprisonment for life, 281 incestuous and polygamous, 16 prohibited period, 20 property rights of parties, 13 evidence of, in criminal action, 56 other than of record, 56 force or fraud in procuring, 278 form required of ceremony of, 49 incestuous, prohibited, 17 Indians contracting, 70 issue of void, deemed legitimate, 72 laws of British Parliament relating to, 6 legal impediment as to, 45 bar to actions for damages, 387 legitimacy of issue of, 277 license for, as evidence, 54 mode of solemnizing, 47 England, 7 Scotland, 8 United States, 9 modern legislation as to, 22 more than a civil contract, 73 obligations of, depend upon law written or unwritten, 73 place of, not controlling, 215 presumptions of validity of, 67 previous chastity not a requisite to validity of, 43 primitive ceremonies of, 4 public policy and morality as to, 15 purpose of statutory definition of, 74 INKKX TO THE TEXT 631 MARRIAGE (Continued). record of, 55 second, after divorce, 19 statutory definition of, 43 validity or invalidity of, 72, 207 foreign, how determined, 14 incestuous, 17 law of state where solemnized governs, 47 one of the effects on, of insanity of on the parties, 72 valid where celebrated, is valid everywhere, 14, 69 void, when between persons prohibited by statute. 72 void, without divorce, when, 277 when voidable only, 75 who may annul voidable, 76 who may ask for annulment of voidable, 18 who may solemnize, 47 who capable of contracting, 42 witnesses to, 49 MARRIAGE CEREMONIES one of the parties to be examined on oath, 48 MARRIAGE CERTIFICATE filing of, with county clerk, 55 MARRIAGE CONTRACT agreement to enter into a certain status or relation, 41 definition and nature of, 40 obligations of, fixed by law, 41 MARRIAGE LICENSE blank form of, to be returned to county clerk, 59 contents of, 57 issuance of, by county clerk, 57 non-residence as to, 57 public record of, 59 MARRIAGE RECORD keeping of, 55 MARRIAGES TO PROTECT REPUTATION application for license in case of, 64 inspection of record when, 463, 65 judge of probate may issue license in case of, 63 papers relating to, must be executed in duplicate, 64 penalties for divulging or publishing facts concerning. 66 performance of marriage in case of, 63 record of, to be kept in private register, 63, 65 inspection of, 65 MARRIED WOMAN actions by and against, 82 acts relative to rights of, 80 capacity of, to make executory contract, 163 contract of, jointly with husband, 172 common law rule as to, 158 constitution and statutes as to, 159, 160 covenants on the part of, 181 debts incurred by, in separate business, 173 disposal of separate real estate of, what law governs, 179 earnings of, 86 endorsement by, of note due to her, 164 632 INDEX TO THE TEXT MARRIED WOMAN (Continued). executory contracts of, 163 husband may act as agent of, 173 liability of, on joint contract, 164 note by herself and husband jointly, 165 partner with husband as to, 164 mortgage by, of separate property to secure debt of another, 175 note, of, for debt of another, 175 real estate of ward of, without husband joining in deed, 178 right of, to dispose of her own property without husband join- ing, 178, 381 coming from another state or country without her hus- band, 379 subscription contract of, for public improvement, 171 test of competency of, to make executory contract, 165 trustee for, may convey to her, 81 MARYLAND causes for divorce in, 244 MASSACHUSETTS , causes for divorce in, 245 MATERIALS husband furnishes, 168 MATRIMONIAL CAUSES jurisdiction of, 12 MECHANICS' LIENS homestead as to, 139 MICHIGAN causes for divorce in, 246 MINNESOTA causes for divorce in, 247 MINOR CHILDREN domicile of, 217 names and residence of, should be stated in bill, 393 service on, 34 MISSISSIPPI causes for divorce in, 248 MISSOURI causes for divorce in, 249 MISTAKE clerical, in decree, 467 MONOGAMY origin of, 2 MONTANA ' causes for divorce in, 250 MORTGAGE homestead covered by, 146 land under, as to dower, 98 widow's dower, when heir pays, 100 M.ORMON HERESY suppression of, 3 MOTHER care and custody of children by, when, 341 MOTIONS argument of, 448 IMiKX TO THE TEXT MOTIONS (Continued ) . brief, regarding, 494 classification of, 446 court granting, when, 447 court may require hearing of, 413 days for hearing, in Supreme Court, 494 docket for, 494 framing issue and hearing of, 449 hearing of, when, 448 practice relating to, in Supreme Court, 493 special, when, 448 witnesses in open court on hearing of, 450 MOTION TO DISMISS making and filing of, 413 NEBRASKA causes for divorce in, 25 NEVADA causes for divorce in, 252 NEW HAMPSHIRE causes for divorce in, 253 NEW JERSEY causes for divorce in, 254 NEW MEXICO causes for divorce in, 255 NEW YORK causes for divorce in, 256 NON COMPOS MENTIS dower of, 219 NON PAYMENT temporary alimony as to, 443 NON-RESIDENTS dower of, 115 marriage of, 57 service on, 407 NON SUPPORT cause for divorce for, 335a NORTH CAROLINA causes for divorce in, 257 NORTH DAKOTA causes for divorce in, 258 NOTE , endorsement by married women, 164 NOTICE OF ARGUMENT manner of service of, 495 NOTICE OF HEARING divorce cases as to, 454 order of, dower of incompetent, 125 OATH collusion of parties under, 337 OBJECTIONS couft to rule upon, when, 463 testimony as to, 434, 464 OHIO causes for divorce in, 259 634 INDEX fO THE TEXT OKLAHOMA causes for divorce in, 260 OPPOSITE PARTY cross-examination of, 455 ORDER FOR TEMPORARY ALIMONY AND EXPENSES contents of, 438 ORDER OF PUBLICATION affidavit for, 408 application for, how made, 407 contents of affidavit for, 409 copy of, to be served on absent or non-resident defendant, 407 plaintiff to cause, to be published, when and where, 407 ORDERS distinction between common and special, 451 OREGON causes for divorce in, 261 OWNERSHIP OF HOMESTEAD rule as to, 135 PARENT consent of, to marriage, 11 PARTITION decree of, 101 dower as to, 107 PARTNER married woman liable to, 164 PARTY assent of each, to marriage contract, 43 competency of, 46 examination of, on oath, 48 personal service on either, when, 30, 36 residence of, as to jurisdiction, 336 supplemental bill as to, 425 void marriage of either, is prohibited from marrying, 72 PENALTIES clergyman or magistrate subject to, for marrying parties with- out license, 61 county clerk subject to, for refusing to give license, 61 PENNSYLVANIA causes for divorce in, 262 PERMANENT ALIMONY adjudication in bankruptcy will not discharge, 359 amount of, how ascertained, 348 discretion of court, 349 award of, is valid claim against the estate of claimant divorced 1 husband deceased when, 359 court may alter decree for, 360 court may sequester real and personal estate of husband and appoint receiver thereof to collect, 359 courts of chancery as to adherence powers of granting, 347 decree for divorce should precede application for, 358 division of property in lieu of, 358 divorce necessary before court may decree, to wife, 347 enforcement of lien for, 357 execution to collect, 358 INDEX TO Till. Ti:\T 635 PERMANENT ALIMONY (Continued). gross sum may be decreed as, 350 judge who hears the evidence should fix the amount, 347 lien on real and personal estate to secure payment of, 352 limitation of power of court toward, 349 power to grant, is statutory, 347 presumption as to Jurisdiction to grant, 347 testimony as to amount of, when and how taken, 350 restoration of, to wife, 343 PERSONAL DIVORCE foreign divorces as to, 36 party beyond jurisdiction entitled to, 30 PERSONAL PROPERTY doctrine of supplemental bill as to, 81 PETITION wife makes, for support, 384 PETITION TO BAR DOWER OF INCOMPETENT appearance and answer of, 127 contents of, 125 order of notice of hearing on, 126 proceedings at hearing on, 127 PHYSICAL INCOMPETENCY divorce for, 291 PLAINTIFF party applying for divorce should be designated as, 391 PLEADINGS amendments to, when and how made, 417 PLEAS abolishment of, 412 POLYANDRIA definition of, 3 POLYGAMOUS MARRIAGE invalid, though valid where solemnized, 71 validity of, 16 POLYGAMY effect on marriage in case of, 16 definition of, 3 suppression 'of mormon heresy as to, 3 PORTO RICO causes for divorce in, 263 PRESUMPTION conflicting, as to marriage, 68 * jurisdiction to grant alimony as to, 347 validity of marriage as to, 367 PRIMITIVE MARRIAGE patriarchal families in, largely polygamous, 3 PRINTING allowance of expense of, 499 type to be used in, in brief and records, 496 PROFITS AND RENTS widow's right to, 105 PROOF domicile as to, 220 taking of, 453 636 INDEX TO THE TEXT PROPERTY division of, in lieu of alimony, 358 PROPERTY RIGHTS OF HUSBAND AND WIFE common law rule as to, 79 decree granted a's to, 32 mutuality of, 87 PROSECUTING ATTORNEY appearance of, in divorce cases, 472 compensation for services of, 477 court may order appearance of, 372 disqualification of, 372 duty of, .when served with summons, 474 employment of, by either party when retained, 476 fee of, in divorce cases, 372 reasons for requiring appearance on, 471 service of summons on, 372 subjects to be investigated by, 475 PUBLICATION order for, 407 PUBLIC IMPROVEMENT wife's subscription for, 171 PUBLIC POLICY marriage effected by, 15 PUBLIC RECORDS inspection of, 59 PUBLISHER mandamus for, to examine records, 59 PURCHASE MONEY MORTGAGE survivorship in, 92 QUAKERS denominational rights of, 53 REAL ESTATE disposal of separate, 179 notice of sale of, 179 sequestration of, 359 wife entitled to, when, 342 RECEIVER court appoints, when, 359 RECORD evidence of marriage other than of, 56 mandamus for publisher to examine, 59 printing of, 499 provisions relating to, 496 RECORD OF MARRIAGES contents of, 55, 56 inspection of, 63, 65 prima facie evidence of, in all courts and proceeding, 62 public, should be open for inspection, 59 REFERENCE evidence in, 432 REHEARING circuit court rule relating to, 467 clerical mistakes in decree not ground for, 467 rule relating to, 500 INDKX To THE TEXT 637 RELEASE fraud may, dower, 107 REMARRIAGE constructive service on defendant, 34 prohibition of, for a period, 20 RENTS AND PROFITS widow's right to, 105 REPORT confirmation of, 156 RESIDENCE domicile and, distinguished, 216 jurisdiction conferred by, 336 RHODE ISLAND causes for divorce in, 264 SALE OF REAL ESTATE execution, barring dower, 107 homestead as to, 149, 153 notice of, 470 SECRETARY OF STATE licenses, certificates and books of registration supplied by, for county clerk, 57 SEPARATION mutual consent in, 309 SERVICE ' see Constructive Service court may direct manner of, when, 492 notice of argument, 495 personal, when, 36 . SETTING ASIDE default as to, 416 SEXUAL INTERCOURSE refusal of, 315 SOUTH CAROLINA causes for divorce in, 265 SOUTH DAKOTA , causes for divorce in, 266 SPECIAL MOTIONS hearing 448 SPOUSE another, living, 45 STATUTES alimony, 347 definition of marriage in, 43, 74, 160 contracts of married women, 159 due process of law, 445 effect of, married women, 161 wife's earnings, 85 SUBSTITUTED SERVICE applications for, how made, 407 SUIT FOR DIVORCE jurisdiction of court in, 390 SUIT ON CONTRACT liability of husband for, of wife, 83 638 SUMMONS clerk to issue, upon filing of bill in payment of entry fee, 405 form and contents of, 405 service of, when and how, 406 prosecutor as to, 372 SUPPLEMENTAL BILL allegations of, 426 answers to, 429 defenses to, 428 ' evidence to support, 430 leave to file, how obtained, 427 nature of, 424 parties to, 425 SUPPLEMENTAL PLEADINGS contents and allegations of, 423 SUPPORT decree for non, 335a wife entitled to, 169, 383 SUPREME COURT hearing of motions, 494 practice in, 493 SUPREME COURT CLERK taxation of costs by, 499 SURPLUS homestead as to, 152 SURVEY OF HOMESTEAD ofiicer to make, 148 SURVIVORSHIP doctrine of, in a land contract, 92 - personal property, 91 purchase money mortgage as to, 92 land held by entireties as to, 90 SWORN ANSWER effect of, 419 TAXATION OF COSTS notice of, how served, 499 wife entitled to, when, 339 TAXES dower effecting payment of, 116 TAX TITLE dower cut off by, 107 TEMPORARY ALIMONY attachment to compel payment of, 444 contempt for non-payment of, 443 execution cannot be -awarded to collect, 358 proceedings to compel payment of, 443" TENANCIES BY THE CURTESY husband and wife in, 94 TENANCIES BY ENTIRETIES husband and wife in, 90, 186, 374 TENANCIES IN COMMON husband and wife, 342 TENNESSEE causes for divorce in, 267 1\1>EX TO THE TEXT 63ft TESTIMONY admissibility of, 463 objections to, 434, 463 trial court may rule upon, 464 order of reference to a commissioner to take, 433 parties can only give, in open court, 366 TEXAS causes for divorce in, 268 TIME computation of, 491 TITLE OF HOMESTEAD fee as to, 137 TRUSTEE appointment of, for wife when, 344 conveyance by, to married woman, 81 duties of, 345 UNAUTHORIZED MARRIAGE consent as to, 51 magistrate or clergyman making, 52 punishment for, 51 UNITED STATES divorce laws of, 213 UTAH causes for divorce in, 269 VALIDITY OF MARRIAGE previous chastity effecting, 43 rule as to, 14, 43, 47, 72, 207 VERMONT causes for divorce in, 270 VIRGINIA causes for divorce in, 271 WASTE liability of dower to pay for, 118 WEST VIRGINIA causes for divorce in, 272 WIDOW constitutional provisions relating to, 133 election by, 114 obligation of, to await administration, 103 occupancy of homestead by, 106, 135, 143 right of, to support is a vested right, 117 assignment of dower, 603 dower as to, 96 interest in mortgage sale, 99 WIFE agency of husband for, 166 bill of complaint in name of, 338 contract of, relating to separate property, 175 contribution by, as gift to husband, 88 costs for, 339 damages recovered by, for injuries, 87 debts contracted on credit of separate estate of, 87 : desertion of, a felony, 389 domicile of, same as husband, 217 640 INDEX TO THE TEXT WIFE (Continued). dower of, upon divorce when, 351 earnings of, 86 former name of, may be restored when, 376 gift by, to husband, 180 guardians sale of interest of, 128 husband not liable for contracts of, 83 duty of, to support, 169 insurance on life of husband, 85 liability of, upon any contract made by her, 83 land of deceased, right of husband, 394 mortgage without signature of, 146 payment of husband's debts by, 177 property of, encumbered to pay alimony to husband, 377 redemption from judgment creditors suit belongs td, 87 responsibility of, for family necessaries, 169 restoration of alimony to, 343 personal estates of, 343 restraint of liberty of, while suit is pending, 340 sale of husband of property of, 182 separate estate of, what constitutes, 174 trustee for, 344 WILL provision of, relating to election, 112 WISCONSIN causes for divorce in, 274 WITNESSES appreciation of nature and obligation of oath by, 460 children as, 461 child under ten years of age as a, 435 compelling appearance of, 456 competency of, 459 charge of adultery, 284 conviction of crime as affecting credibility of, 462 credit of, cannot be impeached, 462 fees of, 456 hearing of motions as to, 450 marriage as to, 49 mode of adminstering oath to, 458 parties may be examined as, 435 penalty for refusing to appear as, 457 religious opinion of, 459 rules as to competency of, 435 service of subpoena on, 456 special questions to be asked of, 371 warrants for apprehension of delinquent, 457 WOMEN dower effecting, 116 WRITTEN LAWS evidence of, of foreign countries, 26 obligations of marriage depends on, 73 WYOMING causes for divorce in, 275 y n 000692019 3 /