Williamson v. Parisien — 1 Johns. Ch. 389

Majority

p. 389

Williamson against Jane Parisien, alias dicta, &c.

April 8th.

Headnote

To entitle a party to sustain a bill for a divorce, under the statute, (sess. 36. ch. 102.2. N. R. L. 197.,) he must be an actual and bonafide inhabit tant of the state at the time of the adultery committed, and at the time of exhibiting the bill.

Where the plaintiff, a native of Scotland* married his wife in New-York) in 2780, and left her in 1784, and went to the West Indies, and continually resided abroad, excepting only a short visit to Ne.w-York, in 1792, until the time of filing his bill for a divorce, in 1813, a period of 28 years; it was held that he was not an inhabitant of the state, within the words dr intent of the act.

Though an absence of five years, of one of the married parties, may exempt the other, whp marries again, fiorn the penaZconsequenres of bigamy, under the provisions of the act, (1 N. R. L. 113.,) yet the second mairiage is null and void; for nothing but the death of one of the parties, or the judicial decree of a competent court, can dissolve the marriage tie.

THIS was a bill for a divorce, a vinculo matrimonii, Sled by the husband against his wife, Ja.mary 15. 1813, on the ground of adultery. The plaintiff stated, that in the year 1780, then being a resident in Mew-York, he married the defendant, then Jane Lowndes, an inhabitant of Mew- York, with whom he cohabited until the year 1784; and during their cohabitation had three children by her, two of whom are still living. That the plaintiff, being a mariner, in June, 1784, sailed from Mew-York for Jamaica, in the West Indies, and, from various causes and accidents, did not return to Mew York until 1792.

The bill charged that the defendant, in 1791, committed adultery with Philip Parisién, in Mezo-York, with whom

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she pretended to have intermarried about that time, and still lived in adultery with him; and during such illicit ^ J 1 ° intercourse with the said Parisién, has had six children by ,. „ &c.

The answer of the defendant, filed May 13th, 1813, stated, that the defendant was married in the city of New-York, in 1780 ; that the plaintiff cohabited with her about three years, during which time she had two children by him, when he left her with child by him, which child was born a few weeks after his departure. That the plaintiff remained abroad eight years, settled in the island of Jamaica, acquired wealth, and lived therein a state of adultery, and had not, since his departure from New-York, in 1784, contributed in the slightest degree, to the support of the defendant, nor for the maintenance and education of her children. That she had, though struggling with great difficulties, by unwearied industry, maintained and brought up her children by him, one of whom died at the age of nine years. That the plaintiff took away her eldest son, at the age of 14 years. Concluding that the plaintiff had abandoned her for ever, or was dead, as was generally believed, she married Parisién, in 1792, with whom she had since lived in the marriage state, and by whom she had several children. That the plaintiff* is a native and subject of Great Britain, having his residence in the island of Jamaica, where he has a house of trade, plantations, and slaves.

The cause was heard on the bill and answer, and an order of reference made, the 4th of September, 1813, to a master, to examine and report the truth of the facts set forth in the bill and answer.

On the 17th January, 1814, the master made a report of the evidence. The material facts proved are stated in the judgment of the court.

On the 12th of October, 1814, the cause came on, and was heard, ex parte, and a decree entered for the plaintiff; hut, on petition of the defendant, an order was made, the

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31st of October, for a rehearing. And the cause, accordingly, was brought on for a rehearing January 25th, 1815. w

Burr, for the plaintiff.

Van Vechten, contra.

The bill was filed the 15tli of January, 1813, and the answer, among other things, states that the plaintiff*1 has his residence in the island of Jamaica, where he has a house of commerce, with other possessions, and slaves.” Upon this bill and answer, a reference, upon the motion of the plaintiff, was made to a master, to in quire into the truth of the facts set forth in the bill and answer, and all questions arising thereon were reserved. Before, then, the question of adultery can be discussed, we must determine, from the facts stated in the report, whether the plaintiff had a residence within this state at the commencement of the suit, so as to entitle him to sustain the action. The statute concerning divorces is very explicit on this subject, that the injured party must be “ an actual resident in this state at the time of the adultery being committed, and at the time of exhibiting the bill.”

From the proof taken before the master, it appears, that the plaintiff is a native of Scotland ; that he came to Nevs-York during the revolutionary war, and married the defendant in 1780 ; that, in June, 1784, he went to the West-Indies, and did not return to New-York until June, 1792 ; that, in the mean time, he was not heard of in his wife’s family here, and it was generally supposed he was dead ; that he soon after returned to the West-Indies, though how soon does not certainly appear; that, about 1797, a son of his, by the defendant, went to live yvith him in the West-Indies ; that, as to his second or last return to this state, it must have been very shortly before the filing of the bill, for one of the witnesses says he saw him, for the first time, about two months

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before the 13th of October, 1813, but that he understood he had been here as long as nine months. Another witness saw ... him since his last return only, about three or four months November, 1813 ; and a third witness says, that she had not heard of the plaintiff since his first return, until within about a year from November, 1813. These witnesses are all that speak on the subject of his last return to New-York, and as they were acquaintances, or connexions, of the parties, they were the persons who would, probably, acquire the earliest knowledge of his return.

Considering that the plaintiff had continually resided abroad from June, 1784, down to near, or about, the time of the filing of the bill, (a period of above 28 years,) with the exception only of the short visit in 1792,1 think here is a want of proof of residence in this state within the purview of the statute. The fact of non-residence was put in issue by the answer, and it was the business of the plaintiff to have furnished some direct and positive proof of the time of his return, and of the establishment of his residence here. The fact was within his knowledge, and the omission to furnish the proof ought to turn every presumption against him. His domicil was established abroad, and it is not changed by an arrival here for some temporary purpose, or on a transient visit. The party suing for a divorce must have become an inhabitant, and taken up his residence here with a bona fide and permanent intent. There must be the animus manendi, or a train of conduct and acts, showing an intended settlement here, before he can bring himself within the policy, as well as the language of the statute.

. The circumstances of this case are rather extraordinary» The plaintiff, after living with his wife for several years, and having children by her, abandons her while enseint, and goes abroad, and remains for eight years, without giving her either assistance or information. She presumes him dead, and marries again. ' He returns and discovers it, and, with apparent acquiescence, departs again for foreign parts, and continues

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abroad for 20 years ; and he now, at this advanced period of his life, returns and prosecutes his wife for adultery, arising from the second marriage, after she has lived with her second or assumed husband, with his knowledge and apparent acquiescence, for so many years, and reared up a family of children. The case, on his part, presents a cruel aspect, and I feel no reluctance in behjg obliged to dismiss the bill; yet no conclusion must be drawn from this in favour of the validity of the second marriage. Though an absence for five years, of one of the married parties, will exempt the other, who marries again, from the penal consequences of bigamy, yet the statute provision goes no further; and, beyond all doubt, the second marriage is null and void; no length of absence, and nothing short of death, or the judicial .decree of some court, confessedly competent to the case, can dissolve the marriage tie. This is a principle, I may venture to say, that pervades the laws of all the Christian nations of Europe. (1 Black. Com. 440. 4 Black. Com. 163, 164. Pothier, Traite du Contrat de Marriage, n. 437. 462—497. Ersk. Inst. vol. 1. p. 109. 113. Barrington on the Statutes, 401. Voet's Com. ad Pand. lib. 23. tit. 2. de ritu Nuptiarum, s. 99.)

There were other objections suggested to this bill, arising from the conduct of the plaintiff, and the lapse of time, which I deem very important, but which I need not now discuss, as I find sufficient reason for dismissing this bill simply on the ground of a want of domicil here at the commencement of the suit.

Bill dismissed, with costs.