William M. Lacy James Kent.

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the petitioner in equity for a divorce must have been a resident of three yeara.
Act of April 4th, 1833. In Vermont, the |Jetitioner for a divorce must have
had a permanent residence of one year, and the cause for it must have hap-
pened within the state. Laws of Vermont, edit 1824, p. 365, 366. This is
the law also in Missouri, R, 8. of Missouri, 1835, p. 225. In Maine, it is held

^ The rights of the parties after divorce are determined by the law alone,
and seldom appear on the decree. So that if the husband has reduced the
wife's personal proi>erty into possession his title remains. Lawson v. 6to-
well, 27 Miss. 630. A divorce a vinculo bars dower; yet when the- divorce is
granted to the wife for her husband's adultery provision is made' in the sta-
tutes ot the states preserving her dower or giving her a provision in lieu
thereof. See 2 N. Y. Rev. Stat. p. 145, sec. 45; Connecticut Stat. 180. Title
Dower, Mass. Stats. 1860, p. 535, ? 38, and see the statutes of the several
states. Waite v. Waite, 4 Const (N. Y.) 95; Forrest i?. Forrest, 6 Duer.
(N. Y. Supr. Crt.) 102; and see hereon Bobson v, Butler, 6 Watts & Sergt.
a5; Levins v. Sleater, 2 Greens (Iowa), 604; Barber v. Root 10 Mass. 260;
Renwick v, Renwick, 10 FaiRc Ch. 420; Burt v, Hurlburt, 16 Vt 292; Smith
V. Smith, 13 Mass. 231; Harding v. Allen, 9 Oxeenl. 140.



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fact of adultery be made oat, it does not follow, as a mf^tter of
coarse, that a divorce is to be awarded, for the remedy by divorce
is purely a civil and private prosecution, under the control and
at the volition of the party aggrieved, and he may bar himself
of the remedy, in several ways, by his own act. (1.) Neither
party can obtain a divorce ior adultery, if the other party re-
eriminates, and can prove a correspondent infidelity. The de-
lectumy in that case, most be of the same kind and not an offence
of a different character (a). The compensatio criminia is the
standard canon law of England in questions of divorce, and it is
founded on the principle that a man cannot be permitted to com-
plain of the breach of a contract which he had first violated; aod
the same principle, it is to be presumed, prevails in these
United States (6).* (2.) So, if the injured *party, sub- [ * 101 ]
seqnently to the adultery, cohabits with the other, or is
otherwise reconciled to the other, after just grounds of belief in
the fact, it is, in judgment of law, a remission of the offence, and
a bar to the divorce. This is a general principle everywhere
pervading this branch of jurisprudence (o).' (3.) By active pro-
sot to be necessary, as a foundation of jarisdiction in a snit for a divorce,
unless made so by positive statnte, that the fact of adultery shbald have
been committed within the state, in whose tribunals a decree ot divorce is
eoQght for that cause. Harding v. Aid en, 9 Oreenleafs Rep. 140.

(a) Johnson v. Johnson, 4 Paige's Rep, 460. The English ecclesiastical
courts do not require the recriminatory charge in bar of the suit to be of the
like character. Cruelty, desertion, &c., may be sufficient. The counter
charge may be made in a supplemental answer, or by a cross bill, if it arises
after the commencement of the suit, and before the final decree. Smith r.
Smith, Ib^. 432.

(h) OugkUm*8 0rdoJudiciorum,To\. i. tit. 214. Forster r. Forster, 1 HaggartVa
Oonsia. Rep. 144. Proctor v. Proctor, 2 ibid, 292. Chambers v. Chambers, 1
ihid. 439. Astlev v. Astley, 1 Hogg, EccL Rep. 714. Beeby v. Beeby, ibid.
789. Wood r. Wood, 2 Paige's Rep. 108. Whittington v. Whittington, 2
Detf. A Battle, 64.

(e) OughUm's OrdOy vbtrnprtu BunCs EccL Law, tit. Marriage, sec. 11. 1
Ertk. Inst. 113, 114. 6 Mom. Rep. 147, anon. Williamson v. Williamson, 1
Johns. Ch. Rep. 492. Condonation is a conditional forgiveness, and founded
00 a full knowledge of all antecedent guilt. Bramwell v. Bramwell, 3 Hagg.
Eed. Rep. 629. Ibid. 351. Delliber v. Delliber, 9 Conn. Rep. 233. See, also.
Code Napoleon, art. 272. Civil Code of Louisiana, art. 149. Van Leeuwen's

* The equitable maxims, *^ He who seeks equity must do equity," and
"He who comes into a court of equity roust come with clean hands/* may
be applied here. See Chambers v. Chambers, 1 Hays. Con. 439; Cocksedge
t. Cocksedge, 1 Kobertsons, 90. A defence set up on this ground is a recrim-
ination. See Bishop, Marr. & Div. { 389.

' The definition of condonation as collected from the decisions is: "A blot-
ting out of the offence imputed, so as to restore the offending party to the
same position he or she occupied before the offence was committed.'' Keats
r, Keats, 1 Swab. & Trist 334; Katcliffe v. Katcliffe, Id. 467. Jt may be
presumed lh>m the fact of the parties cohabiting together after the offence is



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cnrement, or passive and consoioas toleration of his wife's gailty
oondnct (a).' It is also well established, that though mere time
is no bar in the case of a woman (&), yet that lapse of time, or a
long tacit aoqniescenoe of the husband in his wife's infidelity,
even without cohabitation, but without any disability on his part
to prosecute, will be deemed equivalent to a condonatio injuruBy
and bar a prosecution for a divorce, unless the delay be satisfac-
torily accounted for. The husband is not to be permitted, at any
distance of time, to agitate such inquiries, and especially where
his tacit acquiescence continued after his wife had formed another

Com. on the Roman-Dutch Law, p. 84, to the same point of condonntion. Con-
donation is not presumed as a bar so readily ag:ainst the wife as against the
hasband, for she has not the same control. Condonation is accompanied with
an implied condition, that the ii\iary shall not be repeated; and a breach nf
the condition, even though committed out of the jurisdiction of the conrt,
revives the right to a remedy for the former injury. Durant v, Dnrant, 1
Hagg. Ecd. Rep. 733, 762, 761, 786, 793. Johnson v. Johnson, 4 Paige's Rep,
460. Condonation is accompanied with this further condition in the English
law, that the wife shall be treated with conjugal kindness. Durant r. Dn-
rant, sup. Bramwell v, Bramwell, 3 Hagg. Ecc, R, 635. Johnson v. Johnson,
14 Wenffell, 637. A guilty connivance on the part of the wife to her hus-
band^s adultery, is not to be established without grave and conclusive proof.
3 ffagg. Ecd, Rep. 351.

(a) To constitute a bar, by the ecclesiastical law, to the husband's com-
plaint of the adultery of the wife, arising from his presumed consent, there
must be corrupt connivance on his part. He must intentionally invite, or
encourage licentious conduct in the wife, or be knowingly accessary or privy
to the adultery. Rogers v. Rogers, 3 Hagg. Ecd. Rep, 57. Rix v. Rix, ibid.
74. Timmings o. Timmings, ibid. 76. Lovering v. Lovering, iJbid. 85. Moor-
som V. Moorsom, ibid, 87. Crewe v. Crewe, ibid. 129, 131, 133. Hoar v. Hoar,
f^trf. 137. Gilpin v. Gilpin, ibid. 150.

(b) Popkin «. Popkin, 1 Hagg. Ecd, Rep. 765, note.

known to be committed. Beebe v. Beebe, 1 Hag. Ex. 789; but this may be
rebutted by proof that although they live in the same place they do not co-
habit. Whispell V. Whispell, 4 Barb. 217; Elwes v. Elwes, 1 Hag. Con. R.
269; Hofmere v. Hoftnere, 7 Paige's Ch. 60. The doctrine does not seem to
be applied with so much strictness in the case of the wife, as in that of the
hu.sband. Armstrong r. Armstrong, 32 Miss. 279; Gardner v. Gardner, 2
Gray (Mass.), 434; Reese v. Reese, 23 Ala. 785.

' in such cases the maxim ^''Volenii non fit injuria'* applies. Forster r.
Forster, 1 Hag. Con. R. 144. No decree will be granted where the act has
been done by the procurement of the other partv. Pierce v. Pierce, 3 Pick.

Connivance is the corrupt consent of a party to the conduct of the other
whereof he afterwards complains. CoUuaion is an agreement between hus-
band and wife for one of them to commit or appear to commit a breach of
matrimonial duty, for the purpose of enabling the other to obtain the legal
remedy of divorce, as for a ijeal injury. Where the act has qpt been done,
the collusion is a real or attempted fraud upon the court; where it has been
done, it is also a species of connivance; in either case it is a bar to any claim
for divorce. Bishop Mar. A Div. { 350. In such cases the petition will
always be dismissed. Myers v. Myers, 41 Barb. 114; and see Timmings «.
Timmings, 3 Hagg. Eccl. R.



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matiimonial connection, and be slumbered, in uncomplaining
Bileoce, until she became the mother of a new race of children (a).
The statute law of New York has declared, that the court may
refuse to decree a divorce, though the fact of adultery be estab-
lished. (1.) If the offence was committed by the procurement
or with the connivance of the complainant (2.) If it has been
foririren, and the forgiveness proved by express proof, or by the
voluntary cohabitation of the parties with knowledge of the facL
(3.) Where the suit has not been brought within Hve
* years after the knowledge of the adultery. (4.) Or [*102]
where the complainant has been guilty of the same of-
fence (6). All these exceptions, except the positive limitation
as to time, were, as we have already seen, settled and acknowl-
edged principles of general jurisprudence applicable to the sub-

The policy of New York has been against divorces from the
marriage contract, except for adulte^. We meet with a great
variety of practice and opinion on this subject, in this country
and in Europe, and among ancient and modem nations; but the
stronger authority, and the better policy, are in favour of the sta-
bility of the marriage union. The ancient Athenians allowed di-
vorces with great latitude, but they were placed under one import-
ant check, for the party suing for a divorce was obliged to appeal
to the magistrate, state the grounds of complaint, and submit to
his jadgment. It was a regular action, analogous in substance to a
bill in chancery; and if the wife was the prosecutor, she was
obliged to appear in person, and not by a proctor (c). The Greeks
were comparatively exemplary in their domestic relations, but
the graver Romans permitted the liberty of divorce to a most in-
jurious and shameful degree. The maxim of the civil law was
that matrimonia debent esse libera. Either party might renounce
tbe marriage union at pleasure. It was termed divortium sine
coiuo, or sine ulla querela; and the principle is solemnly laid

l«) Williamson v. Williamaon, uh gupra. Best r. Best, 2 Phiflimare^a Rep,
Wl. Mortimer r. Mortimer, 2 Hagg. Consist. Rep. 313. Whittington v.
Whittington, 2 Deo. A BaU. 64.
% A^. Y. Revised StattOes, vol ii. p. 145, sec. 42.

(c) Plvtareh's Life of Alcihiades. Potter's Greek Antiq. 296, 297. Taylor's
®f»«/« of the avU Law, 352, 353.

•Sec New York 3 Rev. Stat. 5th ed. ch. 8, pp. 233, 235. Physical inca-
P^ty is now a ground for, divorce in that state if the action is brought
^thin two years after marriage.



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down in the Piindects, that bona gratia mafrimonium dissolm-
tur (a). We find the Roman laivyers discnssing questions of
property depending upon these voluntarj divorees, or in which
Titia divortium a Seio fecit; Mcevia Titio repudiutn miait (b).
This facility of separation tended to destroy all mutnal confidence,

and to. inflame every trifling disputa The abuse of di-
y^ 108 ] vorce prevailed *in the most polished ages of the Boman

repablic, and it was unknown in its early history.
Though the twelve tables gave to the husband the freedom of di-
vorce, yet the Bepublic had subsisted 500 years when the first
instance of a divorce occurred (c). The Emperor Augustus en-
deavoured by law to put some restraint upon the facility of di-
vorce (d); but the check was overpowered by the influence and
corruption of manners. Voluntary divorces were abolidied by
one of the novels of Justinian, and they were afterwards revived
by another novel of the Emperor Justin (e). In the novel re-
storing the unlimited freedom of divorce, the reasons for it are
assigned; and while it was admitted that nothing ought to be
held BO sacred in civil society as marriage, it was declared, that
the hatred, misery, and crimes, which often flowed from indis-
soluble connections, required, as a necessary remedy, the restor-
ation of the old law, by which marriage was dissolved by matnal
will and consent (g). This practice of divorce is understood to
have continued in the Byzantine or eastern empire, to the 9th or

(a) Dig. 24, 167, 62 and 64.

(b) Dig. 24, 3, 34 and 28. See also Reineec, ArUiq. Rom. App. lib. i. Na
44 to 49, where the learning on the subject is abundant.

(c) The Institutions of Romulus, tending to render the marriage nnion
indissoluble, were very much praised by Dionynus of JTalicamas8U9, Aniiq,
Rom. Hh. 2. According to Plutarch, Romulus instituted, that if the hus-
band abandoned his wife without due cause, he forfeited one-half of his
goods to the wife, and the other half to the Goddess Ceres. How beanti*
fully Horace recommended the value and continuance of the marriage union,
must be familiar to every classical scholar:

Felices ier et ampHus,

Quoa irrupia tenet e^pfda ; %ec malia

Jjtvulsus QucrtmotiiiSf

Suprema cUim ioivel ctmor die.

Lib.1, ear. 13.
On the other hand the Roman philosophers, poets, and satirists, held up to
public scorn and indignation the wanton and extreme abuse of the liberty
of divorce. Seneca de Benef. iii. 16. Martial, vi. 7. Ihid, lib. 9. E^g. 16.
Juvenal, Sat. 6, v. 228.

(d) Suet. ad. Aug. 34.

(e) Did. du Dig. tit. Divorce, No. 617, 618. Nov, 117, c 8, 9.
Ig) Nov.^ 140.



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10th oentiuy, and until it was finally sabdaed by the influence of

In modem Europe divoroes are not allowed in the Roman
Catholic ooantriesy becanse marriage is considered a
^sacrament, and held indissolnble daring the life of [*104]
the partie& This was formerly the case in France (a) ;
and it was the general doctrine in the Latin, thongh not so either
in the Greek or Protestant chnrches (6): Bat the French revo-
latioo, like a mighty inundation, swept away at once the laws and
nsages of ages; and, at one period, the French government
seemed to have declared war against the marriage contract, and
six thoosand divorces are said to have taken place, in the city of
Paris, in the space of two years and three months (c). The code
Napoleon regards marriage only as a civil contract, and allows
divorces not only for several reasonable caoses, sach as adultery,
and grievous injuries, to be submitted to a judicial tribunal, but
also without cause, and founded merely upon mutual consent,
according to the usage of the ancient Romans. This consent is
sabjeeted to several restraints, which do in fact create very great
and serious checks upon the abuse of the privilege (d). By the
Dutch law, there are but two just causes of divorce a vinculo^ viz.
adultery and maHdous desertion (e) ; and, by the English law,
a marriage, valid in its commencement, cannot be dissolved for
any cause, without an act of Parliament (g). This was not the

(a) 2 Dtmat. 061. JVaite de VAtMt, par Foumel, 306, 370. TraiU du
Opnirat de Mariagty prr Pothier, sec. 462, 466, 467.

[h) The canon of the Coancil of Trent, de Mcramento matrimonii, in 1563,
recognised the indissolnbility of the marriage tie. The facility of divorces
in Protestant Germany, is deemed, by a late well-informed traveller, (Rus-
tdPM Tomr in Oermany,) to be no leas injnrions than the absolute indissola-
hility of that relation in Catholic coontries. In 1817, 3000 marriages were
dissolved in Prussia ! The Prossian code of 1794, prepared and published
QDder Frederick WUliam III., gave great and dangerous facility to divorce,
bj allowing it for many causes Sital to the stability and sanctity of the con-
tract In Austria divorce between Protestants may be had, not only for
aeveral substantial causes, but at the request of both parties, on the ground
of uneonquerMe aversion. IhuminUPs AMStriOy voL li. p. 213.

(e) Quarlerly Revifw, No. 56, p. 509.

(d) Code Napoleon, No. 233, 275 to 297. Toullier, in his commentaries on
the code, cannot withhold his astonishment at the perversion of moral senti-
iQent which prevailed, even among the enlightened and exalted jurisconsults
of ancient Rome, on the subject ot tbe right of divorce. Droit CivU Francais,
Wine6, No.294— 298.

(0 Fod, de Diwrtiin H Bepudiia, sec. 5, lib. 24, tit. 2. So, by the Scots
Isw, there are two admissible causes of divorce, adultery and wilfbl desei^
tion by either party. Bell 's Pnneiples of the Law of ScoOand. p. 419, 420.

WllWacfa.^i.441. "^F ,



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♦ 106 OP THE RIGHTS OP PEM0N8. [Ptet IV.

case in EogUnd anoieniij (a); and until the 44th Eliz. divorces
a vinculo were allowed for adultery. But in Foliamb^a
[ * 105 ] *casey 44 Eliz., it was held, in the star chamber, that
adultery was only a cause of divorce a tnenaa et
thoro (6), and the archbishop of Canterbury said, in that case, it
had been so settled before him, on appeal, by many divines and

In some of the United States (c), divorces are restrained, even
by constitutional provisions, which require to every valid divorce^,
the assent of two-thirds of each branch of the legislature, founded
on a previous judicial investigation and decision. The policy of
other states is exceedingly various on this subject In several of
them (d) no divorce is granted, but by a special act of Che legis-
lature, according to the English practice ; and in others (e), the
legislature itself is restrained from granting them, but it may
confer the power on the courts of justice. So strict and scrupulous
has been the policy of South Carolina, that there is no instance
in that state, since the revolution, of a divorce of any kind, either
by the sentence of a court of justice, or by act of the legislature ( f)}^
In all the other states, divorces a vinculo may be granted by
the courts of justice for adultery {g). In New York the juris-
diction of the court as to absolute divorces, for causes subsequent

(a) Bradon, fol. 92.

(6) Maore'8 Rep. 683, pi. 942. 3 Salk. 138.

(c) Georgia, Missvvdppij and Alabama. In Georgia two concurring verdicts
of special juries are conclusive on the subject of divorce, whether absolute or
only limited. There had been from 1800 to 1837, 291 l^slative divorces.
Princc'8 Dig, 2d edit p. 187.

(d) Maryland^ Virginia and 8<mth Carolina. In some of the states divorces
by special acts of the legislature are very common. In 1836, divorces a vin-
culo were granted by the legislature of Illinois without any cause assigned,
and in 1837 by that of Missouri, but in the latter state, the equity side of
the circuit courts has regular jurisdiction conferred by statute over cases of
divorce. S. S. of Missouri^ 18:)5, p. 225. In all the states the legislatures
may iq their discretion grant divorces in extraordinary cases, and they occa-
sionally exercise the power. Cases of this kind occurred before the legi^a-
tures of Connecticut and New York in 1839, 1840.

The Congress of the United States, by an act of the 15th of May, 1826, eh.
46, annuU^ several acts passed by the governor and legislative council of
the Territory of Florida^ granting divorces. This is an instance of a strong
national condemnation of the practice of granting legislative divorces.

(e) Tenneisee^ North Carolina, Arkansas and Michigan.

(/) Sovih Carolina Equity Reports, vol. i. Int. p. 54. Vol. ii. p. 646.

(g) In Louisiana, by statute in 1827, a divorce a vinculo for adultery may
be obtained by judicial decree. Adams v. Hurst, 9 Loui. Rep. 243. The
civil code of Louisiana, art. 133, says that marriage ipay be dissolved by a
divorce legally obtained, but it does not define the causes that will authoiuee it

>« Head v. Head, 2 Kelly, 191 ; Cusack p. White, 2 Mills, 279.



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to the nuurriage, is confined lo the single case of adultery ; bat
in most of the other states (a)," in addition to adnltery, intoler-

(a) Maine, New Hampshire, MasmchtmetU^ Connecticut, Vermont, New Jersey,
Pntiuffvanui, Ohio, Indiana, Michigan, Kentucky, Iffinois, Mississippi, Missouri,
North Carolina, &c. In 1809, wilftil desertion, witboat cause, lor five years,
was made gronnd for a decree of divorce in the State of Maine, bat tbe divoice

" Imprisunment for life in the state prison dissolves the marriage. And
in Vermont, Michigan, Wisconsin, Nevada, Nebraska and others, a convic-
tion of felony and sentence to the state prison for three years or more is
gronnd for divorce. In Illinois, Ken tacky, Missoari, Minnesota and Oregon,
the simple conviction of a felony or infamous crime involving a violation of
ooiyagal duty punishable by imprisonment in a state prison. In Connecti-
cat the conviction of an infamous crime.

Cruelty is a ground in Vermont, New Jersey, Massachusetts, Connecticut,
Pennsylvania, Illinois, and most of the Western states. This must be *legal
cmelty;'*' there must be danger to life, limb, or health, or rea^^onable appre-
hension of such danger. Evans v, Evans, 1 Hag. Cons. 35; Shaw v, Shaw,
17 Conn. 189; Butler v. Butler, 1 Parsons, 329; Sharman v. Sharman, 18 Texas,
5-21; Mahone v, Mahohe, 19 Cal. 628; Finley v. Finley, 9 Dana, 62; Thorn
berry r. Thomberry, 2 J. J. Marsh, 322. In Illinois it must be extreme and
repeated cruelty. *See Harman v. Harman, 16 111. 85.

They must as a rule be persistent acts of cruelty, unless they may be pre-
samed to continue. Richards v. Richards, 1 Grant's Cas. (Penn.) 389; Gra-
eien r. Gracien, 1 Green Ch. 459. See also Breinig v. Meitzler, 2:^ Penn.
156: Shaw v. Shaw, 17 Conn. 189; Everton v. Everton, 5 Jones (N. C), 202.
As to Iowa, see Beebe v. Beebe, 10 Iowa, 133.

Abandonment and desertion is also a ground. See Fellows v. Fellows, 31
Me. 342. See Maine Stat. 1809; Vermont Gen. Stat. 1863, ch. 70, i 20; New
Hampshire, see Stat, and Payson v. Payson, 34 N. H. 518; Connecticut, see
Gen. Stat. 1866, tit. 13, ch. 3, J 32; Ohio, 2 Rev. Stat. 1862, ch. 6, sec. 7; Il-
linois, 1 Gen. Stat. 1858, p. 150, sec. 1; Michigan, Stat. 1857, ch. 108, J 6;
Miinouri, Gen. Stat. 1865, ch. 114, { 1; Minnesota, Gen. Stat. 1858, ch. 53,
p. 463; Iowa, Laws of 1860, p. 429, sec. 2534; Nevada, Laws of 1861, ch. 33,
sec 22; Nebraska, Rev. Stat. 1866, ch. 16, J 6; Oregon, Gen. Stat. 1864, ch.
6, { 491; California, Stat. 1853, ch. 116; Mississippi, Rev. Stat. p. 333, art.
11; Kentucky, 2 Rev. Stat. p. 17, art. 3, { 1. Tennessee, see Stewart v. Stew-
wart, 2 Swan. 591; Rntledge v. Rutledge, 5Sneed, 554; Georgia, see Wood r.
Wood, 29 Ga. 281; New York, 3 R. S., 5th ed., p. 238; Pennsylvania, see
Brightly's Purdon*s Digest.

In California wilful neglect without desertion is snfficient. Washburn v.
Washburn, 9 Cal. 475.

HahitMal drunkenness for a specified time is also a ground in some states,
as, Connecticut, Iowa, Indiana, Illinois, Kentucky, Minnesota, Oregon, Ne-
vada, Nebraska; for which see the statutes of the respective states.

Personal indignities are also grounds in some states; for which see their re-
spective statutes.

In Mattocks v. Cullum, 6 Barr (Pa.), 454, it was held that continued co-
habitation is no bar to a divorce for personal indignities and cruel treat-

An indignity may be offered without striking. Cobb v. Cobb, 2 Jones' Eq.

Pregnancy before marriage and vagrancy of the husband, are also causes in
Slissoori. G«n. Stat. 1865, ch. 114, sec. 1.

In HassactaaettB, under Rev. Stat. 1860, p. 532, sec. 6, if either party has
wparated from the other vnthout consent, and united with a religious sect
or society professing to believe the relation of husband and wife void and
unlawful, and so continued for three years, and refused during such period
to coluibit, a divorce may be granted.



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able ill usage, or wilfal desertion, or unheard of absence, cac
hi^bitoal dmnkenneee, or some of them, will authorize a decree
for a divorce a vinculo^ under different modifications
[ * 106 ] *and restrictions. The question of divorce involves in-
vestigations which are properly of a judicial natore, and

was not to bar the issne i^m inheriting ; and if the wife was the libellant,

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 18 of 108)