Mix v. Mix — 1 Johns. Ch. 204

Majority

p. 204

Mix against Mix.

Sept. 13th.

Headnote

To give the court jurisdiction to decree a divorce, a vinculo matrimonii, on the ground of adultery, where the marriage was solemnized abroad, it must dearly and distinctly appear, from the bill, that both parties were inhabitants of the state at the time the adultery was committed.

THE plaintiff, on the 30th of April, 1814, filed a bill to obtain a divorce from her husband, on the ground of adultery,

The bill stated, that the plaintiff was a native of Great Britain, and now an inhabitant of this state. On the 9th of October, 1808, she married the defendant. The place of the marriagewas not stated,but it was strongly to be inferred from the bill, that the marriage took place in England. The plaintiff stated, that she married the defendant, “ a native and a citizen of the United Státes, and an inhabitant of the state of New-York.’’'1 The defendant owed large debts in England, and, in June, 1809, they came to the United States. In January, 1810, they returned to England. In June, 1812, the defendant came back to the United States, with the pretence of finding employment. In January, 1813, he wrote to the plaintiff a letter, informing her that he was in the naval service of the United States; and she, in pursuance of a determination to follow her husband to the United States, embarked from England, in June, 1813, for New-York. She arrived at Boston, in July, 1813, and came to the city of New-York, and took lodgings. The defendant “ shortly thereafter visited her, and after remaining and cohabiting with her two days, again abandoned her.” That the defendant, since his arrival in the United States, hath committed adultery with S. B. and S. B., “ of the city of New-York,’’’’ in, or about, the month of February, 1814.

p. 205

The defendant demurred to the bill, on two grounds:

1. That it did not appear that the plaintiff was within the provisions of the act; and, 2d. That she does not state the offence, or act of adultery, with sufficient precision,

Burr, for the plaintiff.

S. Jones, jun., contra.

To give the court jurisdiction, in this case, it must appear that the parties were “ inhabitants of this.state at the time of committing the adultery,” It does appear that the plaintiff (who is the injured party) was an actual resident; but that is not sufficient, as the marriage was not solemnized here. It must then appear, that both parties were inhabitants of this state at the time of the adultery charged; and this fact is not expressly averred, nor does it distinctly and certainly appear as to the defendant. The bill is not sufficiently clear and positive, on this point, to give the court jurisdiction. If this was the fact as to both parties, why not say so by a plain and positive averment ? When the statute confines the jurisdiction of the court over divorces, to persons of a particular description, the bill ought to show distinctly that the parties come within that description. The more I examine the bill, the more uncertain It appears to me, whether the defendant really was an inhabitant of this state at the time of the adultery charged. It does not appear that he was born in this state. He is only stated to have been an inhabitant of it when he married, and then he was a non-resident, for the marriage was solemnized in England ; and it does not appear that he was ever after-wards within this state, except when he visited his wife for two days, shortly after her arrival at New- York, in July, 1813. It appears that he owed large debts in England/ that he remained there for eight months after the marriage, and then came to the United Slates ; but it does not appear

p. 206

to what part; that he returned to England, and resided there two years, and came again to the United Stales, (but the bill does not state where,) and entered into the • naval service. The adultery is charged to have been committed with two woman of New- York, but is not alleged to have been committed in New- York. The bill is, therefore, destitute of certainty in this most material point, the defendant’s domicil. The bill ought, therefore, strictly, to be dismissed, but as the objection does not touch the subject matter, or what may properly be called the merits of the case, and may have arisen from inattention in drawing the bill, I shall give the plaintiff leave to amend in twenty days, on payment of costs, and, in default thereof, that the bill be dismissed.^[1]

Ordered accordingly.

* S. C. ante, 108.