Chapter 28

[364]But inLaws(1848), 94, 95, the following case of legislative interference may be found: "The right is hereby given to Ludwig Brunileu to apply to the supreme court of this state, in equity, for a divorce from his wife Bertha, ... with the same effect and on the same footing in every respect, as if they had been married in this state, and the offence or offences complained of had been committed in this state, and within five years prior to the time of such application."[365]Thompson,Laws of the Commonwealth of Pa.(1804-6), VII, 73-75.[366]Thompson,op. cit., 326-28.[367]See, for example,Acts(1808), 138, 140, 146 (for cruelty, force at marriage, etc.);ibid.(1810), 82, 89, 194 (insanity before and after marriage, imprisonment for crime, abuse, and abandonment);ibid.(1811-12), 28, 34, 143, 195, 198, 228, 231, 237;ibid.(1820-21), 3, 29, 35, 48, 139.[368]Rev. Stat. of Del.(1852), 78.[369]Ibid.(1874), 150;ibid.(1893), 242.[370]Laws(1887), 528-40;ibid.(1889), 1046-64;ibid.(1895), 300-308.[371]Laws(1893), 617.[372]Const. of the State of Del.(1897), Art. II, sec. 18, p. 141.[373]Act of March 30, 1787:Laws of the State of N. Y.(1789), II, 133, 134; andibid.(1792), I, 428, 429.[374]Act of April 13, 1813:Van Ness and Woodworth,Laws of N. Y.(1813), II, 197-201.[375]Rev. Stat. of 1827-28(Albany, 1829), II, 141-44. This law provides that no bill for annulment may be brought by the party who was of lawful age of consent, nor by the other if there is voluntary cohabitation after age of consent. Suit on the ground of force or fraud is likewise barred, if there has at any time been voluntary cohabitation; and in case of physical disability, it must be brought within two years after solemnization of the marriage:ibid., II, 142, 143.Cf.Stover,Code of Civil Procedure(1902), II, 1832-33, where the last-named provision is retained. By thisCode, II, 1626, 1627, the fourth ground of annulment is broadened by adding the word "duress;" and a woman is authorized to bring action (1) when she had not reached the age of sixteen at the time of the marriage; (2) when the marriage took place without the consent of parent or guardian; or (3) "when it was not followed by consummation or cohabitation, and was not ratified by any mutual assent of the parties after the plaintiff attained the age of sixteen years."Cf.Laws(1887), chap. 22, p. 25, for the origin of these clauses.[376]Rev. Stat. of 1827-28, II, 144-47.[377]So required byLaws(1902), II, chap. 364;Stover,Code of Civil Proced.(1902), II, sec. 1774, p. 1863.[378]It has been decided in Kennedyv.Kennedy, 73N. Y., 363, affirming 47N. Y. Supr., 56, that "threats of violence of such a character as to induce a reasonable apprehension of bodily injury, and charges of infidelity, made in bad faith, as auxiliary to and in aggravation of the threatened violence, are sufficient to constitute 'cruel and inhuman treatment.'"Cf.Stover,Code of Civil Proced.(1892), II, 1639, 1640, note.A "groundless and malicious charge against a wife's chastity, and spitting upon her are gross acts of cruelty, and words of menace accompanied by the probability of bodily violence, if they inflict indignity and threaten pain, are sufficient." See Whispellv.Whispell, 4Barb., 217; andcf.Lutzv.Lutz, 31N. Y. St. Rep., 718; Waltermirev.Waltermire, 110N. Y., 183; Uhlmannv.Uhlmann, 17Abb. N. C., 236; Masonv.Mason, 1Edw.,Ch., 278; Perryv.Perry, 2Barb.,Ch., 311.[379]Stover,Code of Civil Proced.(1902), II, 1846.[380]Gen. Stat. of N. J.(1896), II, 1267.[381]Act of Dec. 2, 1794:Paterson,Laws of N. J.(1800), 143, 144.[382]Act of Feb. 16, 1820:Laws of N. J.(1821), 667-69.[383]Stat. of N. J.(1847), 923.[384]Act of March 20:Acts(1857), 399. The law of 1846 is retained inElmer,Digest(2d ed. byNixon, Philadelphia, 1855), 205-8.[385]Act of March 5:Pub. Laws(1890), 34;Gen. Stat.(1896), II, 1274.[386]A marriage within the forbidden degrees is not void but voidable, and until so pronounced must be treated as valid: Boylanv.Deinzer, 18Stewart,N. J. Equity Reports, 485.[387]Impotence as a ground of divorce appears inRev. Stat.(1874), 255.Cf.alsoGen. Stat.(1896), II, 1267. Before this enactment a marriage could not be annulled for impotence: Anonymous, 9C. E. Green,N. J. Equity Reports, 19.[388]Act of Apr. 1:Pub. Laws(1887), 132; also inGen. Stat.(1896), II, 1273. This provision thus seems to be in force; if so, since the act of 1890 already cited, the term must be two years.[389]Act of March 4:Pub. Laws(1891), 76. In general, for the present law regulating both kinds of divorce in New Jersey, seeGen. Stat.(1896), II, 1267-75.[390]Act of Sept. 19, 1785:Laws of the Com. of Pa.(1803), III, 102-6. Repealed March 13, 1815:Laws of Gen. Assem.(1822), VI, 286;Purdon,Digest(1818), 130.[391]Laws of the Com., VII, 375.[392]Act of March 13, 1815: inLaws of Com.(1822), VI, 286; andPepper and Lewis,Digest(1896), I, 1633.[393]Laws of the Com.(1822), VI, 288;Pepper and Lewis,Digest, I, 1634. But when marriages within such degrees "shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be enquired into after the death of either husband or wife."[394]By the act of April 13, 1843:Laws(1843), 233;Pepper and Lewis,Digest, I, 1636, "where the wife is lunatic ornon compos mentis" a petition for divorce may be "exhibited by any relative or next friend" who shall make the affidavit provided for in other cases of divorce.[395]Act of May 8:Laws(1854), 644;Pepper and Lewis,Digest(1896), I, 1635. When divorce is granted the husband for the tenth cause, the wife may be allowed alimony according to his circumstances.By an act of March 9, 1855 (Pub. Laws, 68;Pepper and Lewis,Digest, I, 1636), the courts of common pleas are given jurisdiction in all cases of divorce "from the bonds of matrimony for the cause of personal abuse, or for such conduct on the part of either the husband or the wife as to render the condition of the other party intolerable and life burdensome, notwithstanding the parties were at the time of the occurring of said causes domiciled in another state;" but the applicant must be a citizen and have been a resident of the state for one year. This act, according to judicial interpretation, does not establish new causes for divorce, but only enlarges the jurisdiction of the court in reference to the parties under causes already recognized: Schlichterv.Schlichter, 10Phila. Reports, 11 (1873). Cruel and barbarous treatment must be alleged in the libel: Penningtonv.Pennington,ibid., 22.[396]Laws of Pa.(1903), 19; repealing the act of June 1, 1891:ibid.(1891), 142.[397]Pepper and Lewis,Digest(1896), I, 1687.Cf.the act of March 13, 1815:Laws of the Com.(1822), VI, 286; andLaws(1817), 405.[398]Laws(1862), 430;Pepper and Lewis,Digest, I, 1637, 1638.[399]Act of June 20:Laws(1893), 471;Pepper and Lewis,Digest, I, 1638, 1639.[400]Act of 1815:Laws of the Commonwealth(1822), VI, 288;Pepper and Lewis,Digest(1896), I, 1634."While a well-founded belief in the death of her first husband will relieve a woman marrying a second time from the pains of adultery, it cannot validate her second marriage, if, in fact, her first husband was living when it was solemnized."—Thomasv.Thomas, 124Pa., 646; s. c., 23W. N. C., 410 (1889).Cf.Pepper and Lewis,Digest, I, 1634, ed. note.[401]Laws of Del.(1832), 148-50.[402]Rev. Stat. of Del.(1852), 238.[403]Rev. Stat.(1893), 596.[404]Act of Feb. 24, 1859, amending the act of 1852:Laws(1859), 730, 731.[405]Cf.Act of March 12:Laws of Del.(1873), 633-35; or the same inRev. Stat.(1874), 475; withRev. Stat.(1893), 595.The discretionary grounds are now (1) "procurement of the marriage by fraud for want of age, the husband being under the age of eighteen years or the wife being under the age of sixteen years at the time of the marriage, and such marriage not being after those ages voluntarily ratified;" (2) "wilful neglect on the part of the husband for three years to provide for his wife the necessaries of life suitable to her condition."[406]Chase,Stat., I, 192, 193 (act of July 15, 1795).[407]Ibid., 493, 494.[408]Act of Jan. 11, 1822:Chase,Stat., II, 1210, 1211.[409]Act of Jan. 7, 1824:Chase,Stat., II, 1408, 1409.[410]Act of Feb. 22, 1833:Chase,Stat., III, 1934.[411]Act of March 11, 1853:Swan,Stat. of Ohio(1854), 324-28. But the provision regarding sentence and imprisonment is differently worded. At present (Bates,Ann. Rev. Stat.(1900), II, 2948) the paragraph reads: "The imprisonment of either party in a penitentiary under sentence thereto; but the petition for divorce under this clause shall be filed during the imprisonment of the adverse party."[412]For the present law of Ohio seeBates,Ann. Rev. Stat.(1897), II, 2804-10.Cf.Wright,Report, 106. Jurisdiction is still vested in the courts of common pleas, although in certain counties the probate courts have cognizance:Bates,op. cit., II, 2804.[413]Act of Jan. 26, 1818:Laws of the State of Ind.(1818), 226-29.[414]Rev. Laws(1824), 156, 157; same inibid.(1831), 213-15.[415]Act of Jan. 17, 1831:Rev. Laws(1831), 213.[416]Laws of a Gen. Nature(1836), 69.[417]Nevertheless, the act of 1836 provides for causes in addition to those sanctioned by the act of 1831, which includes conviction for felony as in 1818.[418]Rev. Stat.(1838), 242-44. The sixth ground, as enumerated in the text, the first of this act, is "any crime" committed in the United States or the territories, the punishment for which is deemed "infamous."[419]Rev. Stat.(1843), 598 ff.[420]Act of June 1:Gen. Laws(1849), 62, 63.[421]Rev. Stat.(1852), II, 233-38.[422]Laws of Ind.(1859), 108.[423]For construction of the omnibus clause, see Ritterv.Ritter, 5Blackf., 81.[424]Act of March 10:Laws of Ind.(1873), 107-12; alsoHorner,Rev. Stat.(1896), I, secs. 1024-49; II, sec. 5132;Burns,Ann. Stat.(1901), I, 443, 444; III, 559.[425]Laws of Ind.(1903), 114, 115.[426]Act of Jan. 17, 1825, to amend an act of Feb. 22, 1819:Laws of Ill.(1825), 169.[427]Rev. Code(1827), 180, 181.[428]Act of Dec. 4, 1832:Rev. Laws(1833), 234, 235. In the statutes this is not enumerated as a cause; but it surely is one in effect.[429]Rev. Stat.(1845), 196; also inPurple,Comp.(1856), I, 493, 494; and inStat. of Ill.(1864), 150, 152.[430]Act of March 10, 1874:Gross,Stat. of Ill., 1818-74(3d ed., 1872-74), III, 176.[431]Hurd,Rev. Stat.(1898), 631-34.Cf.Rev. Stat.(1845), 196, 197; andStarr and Curtis,Ann. Stat.(1896), II, 1435-55.[432]Act of 1812:Territorial Laws of Mich., I, 183.[433]Act of Nov. 13, 1819:Territorial Laws of Mich., I, 495-98;cf.the act of Apr. 12, 1827:ibid., II, 363-66, repeating the provisions given in the text from the act of 1816.[434]Act of June 28, 1832:Ter. Laws of Mich., III, 931, 932.[435]Act of Apr. 4, 1833:Ter. Laws of Mich., III, 1005-7.[436]Rev. Stat.(1838), 336, 337.[437]Acts(1844), 74.[438]TheRev. Stat.(1846), 333, make the term of desertion two years for either absolute or limited divorce. TheActs(1847), 168, 169, lengthen the period to five years for absolute divorce and three years for partial divorce. But these changes are repealed byActs(1848), 194.[439]Howell,Gen. Stat.(1882-83), II, 1621-30;Miller,Comp. Laws(1899), III, 2653-66;cf.Acts(1851), 71, 72. The partial divorce may, as originally, be "forever or for a limited time."[440]Except a part of Minnesota.[441]Stat. of the Ter. of Wis.(1838-39), 140, 141.[442]Act of March 31,Gen. Laws(1866), 40.[443]In 1856 the court in its discretion was authorized to decree a divorce when either spouse shall become incurably insane and "shall have so remained for the term of seven years continuously," the husband being required to give bond with security for the maintenance of the wife during her life: Act of March 31,Gen. Acts(1856), 96. After two years this act was repealed:Gen. Laws(1858), 82. A second attempt was made in 1881. A full divorce was then authorized when either husband or wife shall have been insane for the space of five years immediately preceding the commencement of the action, and the court shall be satisfied that the insanity is incurable: Act of April 2,Laws(1881), 376-78. This statute was repealed the next year:Laws(1882), 798.[444]Cf.Rev. Stat.(1849), 393-98;ibid.(1858), 623-28;ibid.(1872), II, 1269-76;Ann. Stat.(1889), I, 1362-75; andSanborn and Berryman,Wis. Stat.(1899), I, 1702-20.[445]Rev. Stat. of Minn.(1851), 272-76.[446]Gen. Stat. of Minn.(1866), 408-12. "The revisers repeated this chapter under two titles, the second being entitled 'Limited Divorces,' but the legislature rejected Title II and did not change or amend Title I."—Ibid., 408, note.[447]Act of April 22,Session Laws(1895), 158.Cf.Gen. Stat.(1894), I, 1267, for the law modified in 1866.[448]Cf.Laws(1876), chap. 118;Gen. Stat. of Minn.(1894), I, 1273, 1267;Session Laws(1895), 158.[449]Act of Dec. 29, 1838:Laws of Ia.(1838-39), 179, 180.[450]Act of Jan. 17, 1840:Laws of Ia.(1839-40), 120-22.[451]Act of Jan. 20, 1843:Rev. Stat. of Ia.(1843), 237-41.[452]Act of Jan. 17, 1846:Laws of Ia.(1845-46), 23.[453]Code of Ia.(1851), 223.[454]Act of Jan. 24, 1855:Laws of Ia.(1854-55), 112, 113.[455]Act of March 15:Laws of Ia.(1858), 97, 98.[456]Wright,Report, 96.Cf.Gravesv.Graves, 36Ia., 310; Whitcombv.Whitcomb, 46Ia., 437.[457]Cf.Ann. Code of Ia.(1897), 1135-47; andCode of Ia.(1873), 399-401; alsoLaws of Ia.(1870), 429 (jurisdiction).[458]Stat. of Kan.(1855), 310, 311.[459]Act of Feb. 7:Gen. Laws of Kan.(1859), 385.[460]Act of Feb. 27:Gen. Laws of Kan.(1860), 105-10. An Act of June 4, 1861, provides that a person presenting a copy of an act of the Territory of Kansas by which he has been divorced "shall be entitled to a decree of divorce without issuing summons thereon."—Gen. Laws(1861), 146.[461]"Code of Civil Procedure," approved Feb. 25, 1868, Art. XXVIII: inPrice, Riggs, and McCahon,Gen. Stat. of Kan., 757-59. The law of 1868 reappears inDassler,Laws of Kan.(1876), II, 761-63;ibid.(1879), 690-92.[462]Laws of Kan.(1897), II, 273-77;Dassler,Gen. Stat.(1901), 1055.[463]Art. II, sec. 18, Const. of 1859.[464]See Ulrichv.Ulrich, 8Kan., 402.Cf.Wesnerv.O'Brien, 1Ct. App., 416; and McPhersonv.the State, 56Kan., 140 ff.[465]Act of Jan. 26:Laws(1856), 154-59.[466]Act of Feb. 19:Laws(1875), 80.Cf.Gen. Stat. of Neb.(1873), 344-51; andStat. of Neb., in force Aug. 1, 1867, 128-35, where the causes approved in 1856 appear without essential change.[467]Compiled Stat.(1901), 577. The law regarding jurisdiction is the same as in 1856.[468]Act of April 3, 1893:Laws of Col., 236, 237; also inMills,Ann. Stat.(1897), III, 434. The sixth cause was added in 1881. At the same time the term of habitual drunkenness was reduced to one year, instead of two years, as by the law of 1861; while desertion and departure from the territory "without intention of returning," until then a ground for divorce when committed by the husband, was made a ground when committed by either party:Laws of Col.(1881), 112; also inGen. Stat.(1883), 397 ff. The first cause, in its present form, arose inLaws of Col.(1885), 189, and it differs somewhat from the original provision inibid.(1861-62), 360.[469]Act in force Jan. 1, 1870:Laws(1869), 274;Van Orsdel and Chatterton,Rev. Stat.(1899), 794.[470]Act of March 8:Laws(1882), 73-81;Rev. Stat.(1887), sec. 1571, pp. 419-24; alsoVan Orsdel and Chatterton,Rev. Stat.(1899), 794-800. The first six of the causes above enumerated were introduced by the act which came into force Jan. 1, 1870:Laws(1869), 274-81; but then under the third head, conviction and imprisonment for three years or more were necessary to constitute a ground; and by the sixth cause it was required that one of the parties should be "repeatedly guilty of such unhuman treatment as shall endanger the life of the other." The remaining five causes first appeared in 1882.[471]Wright,Report, 203-6, 156.[472]Act of Feb. 2:Laws(1878), 1, 2; alsoRev. Stat. of Utah(1898), 333, 334.[473]Laws of Utah(1903), 39, 40.[474]Laws(1896), 111.[475]Act of Feb. 1, 1853:Gen. Laws of Ore.(1852-53), 49-51.[476]Act of Jan. 17, 1854:Stat. of Ore.(1853-54), 494-97.Cf.also the same,ibid.(1854-55), 536-41.[477]Act of Oct. 11, 1862:Laws, secs. 485 ff.; and the same inDeady and Lane,Organic and Other Gen. Laws of Ore., 1843-1872(1874), 208-12.[478]Act of Feb. 27:Laws(1887), 52, 53; same inCodes and Stat. of Ore.(1902), I, 275. On cruelty as a cause see Morrisv.Morris, 73Am. Dec., 619-31.[479]Stat. for the Ter. of Wash.(1854), 405-7.[480]Act of Jan. 23:Acts(1860), 318-20.[481]Act of Dec. 22, 1885:Laws(1885-86), 120.[482]Act of Feb. 24:Laws(1891), 42; also inAnn. Codes and Stat. of Wash.(1897), II, 1595-1600.[483]Const. of 1889, Art. IV, secs. 5, 6.[484]On cruelty see Powelsonv.Powelson, 22Cal., 358; Morrisv.Morris, 14Cal., 76; Kellyv.Kelly, 1West Coast Rep., 143; Eidenmullerv.Eidenmuller, 37Cal., 394; Johnsonv.Johnson, 14Cal., 459; Piercev.Pierce, 15Am. Dec., 210, note. In general Poorev.Poore, 29Am. Dec., 664.[485]Sec. 96 of the "Civil Code" also declares that "persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion."—Deering,Codes and Stat.(1886), II, 34;Pomeroy,Civil Code(1901), 48.On desertion see especially Hardenbergv.Hardenberg, 14Cal., 654; Benkertv.Benkert, 32Cal., 467; Morrisonv.Morrison, 20Cal., 431; Christiev.Christie, 53Cal., 26; also Steinv.Stein, 5Col., 55; Pilgrimv.Pilgrim, 57Iowa, 370.

[365]Thompson,Laws of the Commonwealth of Pa.(1804-6), VII, 73-75.

[366]Thompson,op. cit., 326-28.

[367]See, for example,Acts(1808), 138, 140, 146 (for cruelty, force at marriage, etc.);ibid.(1810), 82, 89, 194 (insanity before and after marriage, imprisonment for crime, abuse, and abandonment);ibid.(1811-12), 28, 34, 143, 195, 198, 228, 231, 237;ibid.(1820-21), 3, 29, 35, 48, 139.

[368]Rev. Stat. of Del.(1852), 78.

[369]Ibid.(1874), 150;ibid.(1893), 242.

[370]Laws(1887), 528-40;ibid.(1889), 1046-64;ibid.(1895), 300-308.

[371]Laws(1893), 617.

[372]Const. of the State of Del.(1897), Art. II, sec. 18, p. 141.

[373]Act of March 30, 1787:Laws of the State of N. Y.(1789), II, 133, 134; andibid.(1792), I, 428, 429.

[374]Act of April 13, 1813:Van Ness and Woodworth,Laws of N. Y.(1813), II, 197-201.

[375]Rev. Stat. of 1827-28(Albany, 1829), II, 141-44. This law provides that no bill for annulment may be brought by the party who was of lawful age of consent, nor by the other if there is voluntary cohabitation after age of consent. Suit on the ground of force or fraud is likewise barred, if there has at any time been voluntary cohabitation; and in case of physical disability, it must be brought within two years after solemnization of the marriage:ibid., II, 142, 143.Cf.Stover,Code of Civil Procedure(1902), II, 1832-33, where the last-named provision is retained. By thisCode, II, 1626, 1627, the fourth ground of annulment is broadened by adding the word "duress;" and a woman is authorized to bring action (1) when she had not reached the age of sixteen at the time of the marriage; (2) when the marriage took place without the consent of parent or guardian; or (3) "when it was not followed by consummation or cohabitation, and was not ratified by any mutual assent of the parties after the plaintiff attained the age of sixteen years."Cf.Laws(1887), chap. 22, p. 25, for the origin of these clauses.

[376]Rev. Stat. of 1827-28, II, 144-47.

[377]So required byLaws(1902), II, chap. 364;Stover,Code of Civil Proced.(1902), II, sec. 1774, p. 1863.

[378]It has been decided in Kennedyv.Kennedy, 73N. Y., 363, affirming 47N. Y. Supr., 56, that "threats of violence of such a character as to induce a reasonable apprehension of bodily injury, and charges of infidelity, made in bad faith, as auxiliary to and in aggravation of the threatened violence, are sufficient to constitute 'cruel and inhuman treatment.'"Cf.Stover,Code of Civil Proced.(1892), II, 1639, 1640, note.A "groundless and malicious charge against a wife's chastity, and spitting upon her are gross acts of cruelty, and words of menace accompanied by the probability of bodily violence, if they inflict indignity and threaten pain, are sufficient." See Whispellv.Whispell, 4Barb., 217; andcf.Lutzv.Lutz, 31N. Y. St. Rep., 718; Waltermirev.Waltermire, 110N. Y., 183; Uhlmannv.Uhlmann, 17Abb. N. C., 236; Masonv.Mason, 1Edw.,Ch., 278; Perryv.Perry, 2Barb.,Ch., 311.

A "groundless and malicious charge against a wife's chastity, and spitting upon her are gross acts of cruelty, and words of menace accompanied by the probability of bodily violence, if they inflict indignity and threaten pain, are sufficient." See Whispellv.Whispell, 4Barb., 217; andcf.Lutzv.Lutz, 31N. Y. St. Rep., 718; Waltermirev.Waltermire, 110N. Y., 183; Uhlmannv.Uhlmann, 17Abb. N. C., 236; Masonv.Mason, 1Edw.,Ch., 278; Perryv.Perry, 2Barb.,Ch., 311.

[379]Stover,Code of Civil Proced.(1902), II, 1846.

[380]Gen. Stat. of N. J.(1896), II, 1267.

[381]Act of Dec. 2, 1794:Paterson,Laws of N. J.(1800), 143, 144.

[382]Act of Feb. 16, 1820:Laws of N. J.(1821), 667-69.

[383]Stat. of N. J.(1847), 923.

[384]Act of March 20:Acts(1857), 399. The law of 1846 is retained inElmer,Digest(2d ed. byNixon, Philadelphia, 1855), 205-8.

[385]Act of March 5:Pub. Laws(1890), 34;Gen. Stat.(1896), II, 1274.

[386]A marriage within the forbidden degrees is not void but voidable, and until so pronounced must be treated as valid: Boylanv.Deinzer, 18Stewart,N. J. Equity Reports, 485.

[387]Impotence as a ground of divorce appears inRev. Stat.(1874), 255.Cf.alsoGen. Stat.(1896), II, 1267. Before this enactment a marriage could not be annulled for impotence: Anonymous, 9C. E. Green,N. J. Equity Reports, 19.

[388]Act of Apr. 1:Pub. Laws(1887), 132; also inGen. Stat.(1896), II, 1273. This provision thus seems to be in force; if so, since the act of 1890 already cited, the term must be two years.

[389]Act of March 4:Pub. Laws(1891), 76. In general, for the present law regulating both kinds of divorce in New Jersey, seeGen. Stat.(1896), II, 1267-75.

[390]Act of Sept. 19, 1785:Laws of the Com. of Pa.(1803), III, 102-6. Repealed March 13, 1815:Laws of Gen. Assem.(1822), VI, 286;Purdon,Digest(1818), 130.

[391]Laws of the Com., VII, 375.

[392]Act of March 13, 1815: inLaws of Com.(1822), VI, 286; andPepper and Lewis,Digest(1896), I, 1633.

[393]Laws of the Com.(1822), VI, 288;Pepper and Lewis,Digest, I, 1634. But when marriages within such degrees "shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be enquired into after the death of either husband or wife."

[394]By the act of April 13, 1843:Laws(1843), 233;Pepper and Lewis,Digest, I, 1636, "where the wife is lunatic ornon compos mentis" a petition for divorce may be "exhibited by any relative or next friend" who shall make the affidavit provided for in other cases of divorce.

[395]Act of May 8:Laws(1854), 644;Pepper and Lewis,Digest(1896), I, 1635. When divorce is granted the husband for the tenth cause, the wife may be allowed alimony according to his circumstances.By an act of March 9, 1855 (Pub. Laws, 68;Pepper and Lewis,Digest, I, 1636), the courts of common pleas are given jurisdiction in all cases of divorce "from the bonds of matrimony for the cause of personal abuse, or for such conduct on the part of either the husband or the wife as to render the condition of the other party intolerable and life burdensome, notwithstanding the parties were at the time of the occurring of said causes domiciled in another state;" but the applicant must be a citizen and have been a resident of the state for one year. This act, according to judicial interpretation, does not establish new causes for divorce, but only enlarges the jurisdiction of the court in reference to the parties under causes already recognized: Schlichterv.Schlichter, 10Phila. Reports, 11 (1873). Cruel and barbarous treatment must be alleged in the libel: Penningtonv.Pennington,ibid., 22.

[395]Act of May 8:Laws(1854), 644;Pepper and Lewis,Digest(1896), I, 1635. When divorce is granted the husband for the tenth cause, the wife may be allowed alimony according to his circumstances.

By an act of March 9, 1855 (Pub. Laws, 68;Pepper and Lewis,Digest, I, 1636), the courts of common pleas are given jurisdiction in all cases of divorce "from the bonds of matrimony for the cause of personal abuse, or for such conduct on the part of either the husband or the wife as to render the condition of the other party intolerable and life burdensome, notwithstanding the parties were at the time of the occurring of said causes domiciled in another state;" but the applicant must be a citizen and have been a resident of the state for one year. This act, according to judicial interpretation, does not establish new causes for divorce, but only enlarges the jurisdiction of the court in reference to the parties under causes already recognized: Schlichterv.Schlichter, 10Phila. Reports, 11 (1873). Cruel and barbarous treatment must be alleged in the libel: Penningtonv.Pennington,ibid., 22.

[396]Laws of Pa.(1903), 19; repealing the act of June 1, 1891:ibid.(1891), 142.

[397]Pepper and Lewis,Digest(1896), I, 1687.Cf.the act of March 13, 1815:Laws of the Com.(1822), VI, 286; andLaws(1817), 405.

[398]Laws(1862), 430;Pepper and Lewis,Digest, I, 1637, 1638.

[399]Act of June 20:Laws(1893), 471;Pepper and Lewis,Digest, I, 1638, 1639.

[400]Act of 1815:Laws of the Commonwealth(1822), VI, 288;Pepper and Lewis,Digest(1896), I, 1634."While a well-founded belief in the death of her first husband will relieve a woman marrying a second time from the pains of adultery, it cannot validate her second marriage, if, in fact, her first husband was living when it was solemnized."—Thomasv.Thomas, 124Pa., 646; s. c., 23W. N. C., 410 (1889).Cf.Pepper and Lewis,Digest, I, 1634, ed. note.

[400]Act of 1815:Laws of the Commonwealth(1822), VI, 288;Pepper and Lewis,Digest(1896), I, 1634.

"While a well-founded belief in the death of her first husband will relieve a woman marrying a second time from the pains of adultery, it cannot validate her second marriage, if, in fact, her first husband was living when it was solemnized."—Thomasv.Thomas, 124Pa., 646; s. c., 23W. N. C., 410 (1889).Cf.Pepper and Lewis,Digest, I, 1634, ed. note.

[401]Laws of Del.(1832), 148-50.

[402]Rev. Stat. of Del.(1852), 238.

[403]Rev. Stat.(1893), 596.

[404]Act of Feb. 24, 1859, amending the act of 1852:Laws(1859), 730, 731.

[405]Cf.Act of March 12:Laws of Del.(1873), 633-35; or the same inRev. Stat.(1874), 475; withRev. Stat.(1893), 595.The discretionary grounds are now (1) "procurement of the marriage by fraud for want of age, the husband being under the age of eighteen years or the wife being under the age of sixteen years at the time of the marriage, and such marriage not being after those ages voluntarily ratified;" (2) "wilful neglect on the part of the husband for three years to provide for his wife the necessaries of life suitable to her condition."

[405]Cf.Act of March 12:Laws of Del.(1873), 633-35; or the same inRev. Stat.(1874), 475; withRev. Stat.(1893), 595.

The discretionary grounds are now (1) "procurement of the marriage by fraud for want of age, the husband being under the age of eighteen years or the wife being under the age of sixteen years at the time of the marriage, and such marriage not being after those ages voluntarily ratified;" (2) "wilful neglect on the part of the husband for three years to provide for his wife the necessaries of life suitable to her condition."

[406]Chase,Stat., I, 192, 193 (act of July 15, 1795).

[407]Ibid., 493, 494.

[408]Act of Jan. 11, 1822:Chase,Stat., II, 1210, 1211.

[409]Act of Jan. 7, 1824:Chase,Stat., II, 1408, 1409.

[410]Act of Feb. 22, 1833:Chase,Stat., III, 1934.

[411]Act of March 11, 1853:Swan,Stat. of Ohio(1854), 324-28. But the provision regarding sentence and imprisonment is differently worded. At present (Bates,Ann. Rev. Stat.(1900), II, 2948) the paragraph reads: "The imprisonment of either party in a penitentiary under sentence thereto; but the petition for divorce under this clause shall be filed during the imprisonment of the adverse party."

[412]For the present law of Ohio seeBates,Ann. Rev. Stat.(1897), II, 2804-10.Cf.Wright,Report, 106. Jurisdiction is still vested in the courts of common pleas, although in certain counties the probate courts have cognizance:Bates,op. cit., II, 2804.

[413]Act of Jan. 26, 1818:Laws of the State of Ind.(1818), 226-29.

[414]Rev. Laws(1824), 156, 157; same inibid.(1831), 213-15.

[415]Act of Jan. 17, 1831:Rev. Laws(1831), 213.

[416]Laws of a Gen. Nature(1836), 69.

[417]Nevertheless, the act of 1836 provides for causes in addition to those sanctioned by the act of 1831, which includes conviction for felony as in 1818.

[418]Rev. Stat.(1838), 242-44. The sixth ground, as enumerated in the text, the first of this act, is "any crime" committed in the United States or the territories, the punishment for which is deemed "infamous."

[419]Rev. Stat.(1843), 598 ff.

[420]Act of June 1:Gen. Laws(1849), 62, 63.

[421]Rev. Stat.(1852), II, 233-38.

[422]Laws of Ind.(1859), 108.

[423]For construction of the omnibus clause, see Ritterv.Ritter, 5Blackf., 81.

[424]Act of March 10:Laws of Ind.(1873), 107-12; alsoHorner,Rev. Stat.(1896), I, secs. 1024-49; II, sec. 5132;Burns,Ann. Stat.(1901), I, 443, 444; III, 559.

[425]Laws of Ind.(1903), 114, 115.

[426]Act of Jan. 17, 1825, to amend an act of Feb. 22, 1819:Laws of Ill.(1825), 169.

[427]Rev. Code(1827), 180, 181.

[428]Act of Dec. 4, 1832:Rev. Laws(1833), 234, 235. In the statutes this is not enumerated as a cause; but it surely is one in effect.

[429]Rev. Stat.(1845), 196; also inPurple,Comp.(1856), I, 493, 494; and inStat. of Ill.(1864), 150, 152.

[430]Act of March 10, 1874:Gross,Stat. of Ill., 1818-74(3d ed., 1872-74), III, 176.

[431]Hurd,Rev. Stat.(1898), 631-34.Cf.Rev. Stat.(1845), 196, 197; andStarr and Curtis,Ann. Stat.(1896), II, 1435-55.

[432]Act of 1812:Territorial Laws of Mich., I, 183.

[433]Act of Nov. 13, 1819:Territorial Laws of Mich., I, 495-98;cf.the act of Apr. 12, 1827:ibid., II, 363-66, repeating the provisions given in the text from the act of 1816.

[434]Act of June 28, 1832:Ter. Laws of Mich., III, 931, 932.

[435]Act of Apr. 4, 1833:Ter. Laws of Mich., III, 1005-7.

[436]Rev. Stat.(1838), 336, 337.

[437]Acts(1844), 74.

[438]TheRev. Stat.(1846), 333, make the term of desertion two years for either absolute or limited divorce. TheActs(1847), 168, 169, lengthen the period to five years for absolute divorce and three years for partial divorce. But these changes are repealed byActs(1848), 194.

[439]Howell,Gen. Stat.(1882-83), II, 1621-30;Miller,Comp. Laws(1899), III, 2653-66;cf.Acts(1851), 71, 72. The partial divorce may, as originally, be "forever or for a limited time."

[440]Except a part of Minnesota.

[441]Stat. of the Ter. of Wis.(1838-39), 140, 141.

[442]Act of March 31,Gen. Laws(1866), 40.

[443]In 1856 the court in its discretion was authorized to decree a divorce when either spouse shall become incurably insane and "shall have so remained for the term of seven years continuously," the husband being required to give bond with security for the maintenance of the wife during her life: Act of March 31,Gen. Acts(1856), 96. After two years this act was repealed:Gen. Laws(1858), 82. A second attempt was made in 1881. A full divorce was then authorized when either husband or wife shall have been insane for the space of five years immediately preceding the commencement of the action, and the court shall be satisfied that the insanity is incurable: Act of April 2,Laws(1881), 376-78. This statute was repealed the next year:Laws(1882), 798.

[444]Cf.Rev. Stat.(1849), 393-98;ibid.(1858), 623-28;ibid.(1872), II, 1269-76;Ann. Stat.(1889), I, 1362-75; andSanborn and Berryman,Wis. Stat.(1899), I, 1702-20.

[445]Rev. Stat. of Minn.(1851), 272-76.

[446]Gen. Stat. of Minn.(1866), 408-12. "The revisers repeated this chapter under two titles, the second being entitled 'Limited Divorces,' but the legislature rejected Title II and did not change or amend Title I."—Ibid., 408, note.

[447]Act of April 22,Session Laws(1895), 158.Cf.Gen. Stat.(1894), I, 1267, for the law modified in 1866.

[448]Cf.Laws(1876), chap. 118;Gen. Stat. of Minn.(1894), I, 1273, 1267;Session Laws(1895), 158.

[449]Act of Dec. 29, 1838:Laws of Ia.(1838-39), 179, 180.

[450]Act of Jan. 17, 1840:Laws of Ia.(1839-40), 120-22.

[451]Act of Jan. 20, 1843:Rev. Stat. of Ia.(1843), 237-41.

[452]Act of Jan. 17, 1846:Laws of Ia.(1845-46), 23.

[453]Code of Ia.(1851), 223.

[454]Act of Jan. 24, 1855:Laws of Ia.(1854-55), 112, 113.

[455]Act of March 15:Laws of Ia.(1858), 97, 98.

[456]Wright,Report, 96.Cf.Gravesv.Graves, 36Ia., 310; Whitcombv.Whitcomb, 46Ia., 437.

[457]Cf.Ann. Code of Ia.(1897), 1135-47; andCode of Ia.(1873), 399-401; alsoLaws of Ia.(1870), 429 (jurisdiction).

[458]Stat. of Kan.(1855), 310, 311.

[459]Act of Feb. 7:Gen. Laws of Kan.(1859), 385.

[460]Act of Feb. 27:Gen. Laws of Kan.(1860), 105-10. An Act of June 4, 1861, provides that a person presenting a copy of an act of the Territory of Kansas by which he has been divorced "shall be entitled to a decree of divorce without issuing summons thereon."—Gen. Laws(1861), 146.

[461]"Code of Civil Procedure," approved Feb. 25, 1868, Art. XXVIII: inPrice, Riggs, and McCahon,Gen. Stat. of Kan., 757-59. The law of 1868 reappears inDassler,Laws of Kan.(1876), II, 761-63;ibid.(1879), 690-92.

[462]Laws of Kan.(1897), II, 273-77;Dassler,Gen. Stat.(1901), 1055.

[463]Art. II, sec. 18, Const. of 1859.

[464]See Ulrichv.Ulrich, 8Kan., 402.Cf.Wesnerv.O'Brien, 1Ct. App., 416; and McPhersonv.the State, 56Kan., 140 ff.

[465]Act of Jan. 26:Laws(1856), 154-59.

[466]Act of Feb. 19:Laws(1875), 80.Cf.Gen. Stat. of Neb.(1873), 344-51; andStat. of Neb., in force Aug. 1, 1867, 128-35, where the causes approved in 1856 appear without essential change.

[467]Compiled Stat.(1901), 577. The law regarding jurisdiction is the same as in 1856.

[468]Act of April 3, 1893:Laws of Col., 236, 237; also inMills,Ann. Stat.(1897), III, 434. The sixth cause was added in 1881. At the same time the term of habitual drunkenness was reduced to one year, instead of two years, as by the law of 1861; while desertion and departure from the territory "without intention of returning," until then a ground for divorce when committed by the husband, was made a ground when committed by either party:Laws of Col.(1881), 112; also inGen. Stat.(1883), 397 ff. The first cause, in its present form, arose inLaws of Col.(1885), 189, and it differs somewhat from the original provision inibid.(1861-62), 360.

[469]Act in force Jan. 1, 1870:Laws(1869), 274;Van Orsdel and Chatterton,Rev. Stat.(1899), 794.

[470]Act of March 8:Laws(1882), 73-81;Rev. Stat.(1887), sec. 1571, pp. 419-24; alsoVan Orsdel and Chatterton,Rev. Stat.(1899), 794-800. The first six of the causes above enumerated were introduced by the act which came into force Jan. 1, 1870:Laws(1869), 274-81; but then under the third head, conviction and imprisonment for three years or more were necessary to constitute a ground; and by the sixth cause it was required that one of the parties should be "repeatedly guilty of such unhuman treatment as shall endanger the life of the other." The remaining five causes first appeared in 1882.

[471]Wright,Report, 203-6, 156.

[472]Act of Feb. 2:Laws(1878), 1, 2; alsoRev. Stat. of Utah(1898), 333, 334.

[473]Laws of Utah(1903), 39, 40.

[474]Laws(1896), 111.

[475]Act of Feb. 1, 1853:Gen. Laws of Ore.(1852-53), 49-51.

[476]Act of Jan. 17, 1854:Stat. of Ore.(1853-54), 494-97.Cf.also the same,ibid.(1854-55), 536-41.

[477]Act of Oct. 11, 1862:Laws, secs. 485 ff.; and the same inDeady and Lane,Organic and Other Gen. Laws of Ore., 1843-1872(1874), 208-12.

[478]Act of Feb. 27:Laws(1887), 52, 53; same inCodes and Stat. of Ore.(1902), I, 275. On cruelty as a cause see Morrisv.Morris, 73Am. Dec., 619-31.

[479]Stat. for the Ter. of Wash.(1854), 405-7.

[480]Act of Jan. 23:Acts(1860), 318-20.

[481]Act of Dec. 22, 1885:Laws(1885-86), 120.

[482]Act of Feb. 24:Laws(1891), 42; also inAnn. Codes and Stat. of Wash.(1897), II, 1595-1600.

[483]Const. of 1889, Art. IV, secs. 5, 6.

[484]On cruelty see Powelsonv.Powelson, 22Cal., 358; Morrisv.Morris, 14Cal., 76; Kellyv.Kelly, 1West Coast Rep., 143; Eidenmullerv.Eidenmuller, 37Cal., 394; Johnsonv.Johnson, 14Cal., 459; Piercev.Pierce, 15Am. Dec., 210, note. In general Poorev.Poore, 29Am. Dec., 664.

[485]Sec. 96 of the "Civil Code" also declares that "persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion."—Deering,Codes and Stat.(1886), II, 34;Pomeroy,Civil Code(1901), 48.On desertion see especially Hardenbergv.Hardenberg, 14Cal., 654; Benkertv.Benkert, 32Cal., 467; Morrisonv.Morrison, 20Cal., 431; Christiev.Christie, 53Cal., 26; also Steinv.Stein, 5Col., 55; Pilgrimv.Pilgrim, 57Iowa, 370.

On desertion see especially Hardenbergv.Hardenberg, 14Cal., 654; Benkertv.Benkert, 32Cal., 467; Morrisonv.Morrison, 20Cal., 431; Christiev.Christie, 53Cal., 26; also Steinv.Stein, 5Col., 55; Pilgrimv.Pilgrim, 57Iowa, 370.

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