Kane v. Kane — 3 Edw. Ch. 389

Majority

p. 389

Kane v. Kane.

April 7, 1840.

Headnote

Husband and wife. Divorce. Decree. Evidence.

Where the testimony in a divorce case does not correspond with the bill in relation to the time, place and person named therein, a decree will not be made although there be evidence of barefaced acts of adultery with others brought in, under the general charge of adultery, with persons “ to the complainant unknown.”

Bill by the husband against the wife for divorce, a vinculo matrimonii, on the ground of adultery.

Application for a decree, on the coming in of the master’s rePorti

Mr. Cook, moved for such decree.

The testimony does not make out the case as stated in the bill. It is altogether different from what is alleged against her, except the general charge of adultery with divers other persons (besides John Stilwell) to the complainants unknown. This sort of general charge is not sufficient to base a decree upon. Time, place and circumstances must be stated, though the names of persons with whom committed are unknown. The testimony shows open and notorious acts of adultery, if the worn an spoken of is really the defendant—no artful attempts at concealment: and yet none of these acts are charged in the bill. How could the husband be ignorant of them, if he was at all particular about his wife’s conduct or his own character as a husband ? It would almost seem, as if the woman, spoken of by the witnesses was not the wife of the complainant, but some other woman, who has been mistaken for her or made to personate her. Again, the evidence is insufficient in another respect: non-cohabitation is not shown ; no testimony is adduced to support that material averment in the bill.

A decree cannot be made upon this report under the present bill.