By Sections 9, 10 and 11. No divorce shall be decreed for any cause, if the parties have never lived together as man and wife, within this state; nor for any cause which shall have occurred in any other state or country, unless the parties had previously lived together as husband and wife in this state; nor for any cause, which shall have occurred in any other state or country, unless one of the parties was then living within this state.

A libel must be signed by the libelant if of the age of legal consent to a marriage, otherwise by a guardian or by a next friend specially admitted by the court. Sec. 12.

The following decisions refer to the statutes in force previous to the Revised Statutes, but for the most part are grounded on analogous provisions.

Where a libel is for a divorce, a vinculo, a legal marriage must first be proved. A certificate of a magistrate is not evidence. 1 Mass.

R. 240.

Where the charge is for adultery, confessions of the guilty party are inadmissible evidence. 2 Mass. R. 154.

Where the offence is committed in another state, and the libelant removes into this commonwealth afterwards, the libel will be dismissed. 3 Massachusetts Reports, 158. But if the parties dwell here before the commission of the crime, and the wrongdoer commits it out of the county, the libel will be sustained. 1b. So, if the libelant lives in this country and the respondent appears to have no settled resi dence, but the crime is committed out of the commonwealth, the libel will be sustained. Squire v. Squire, 3 Massachusetts Reports, 184. But if the marriage is solemnized and the act of adultery is committed in another state, and the libelant removes into this state, leaving the offender behind, the libel will not be sustained. Carter v. Carter, 6 Massachusetts Reports, 263.

If a person in this state removes into another for the purpose of obtaining a divorce, a vinculo, for a cause not sufficient within this state, the marriage is not dissolved thereby in this state. Inhabitants of Hanover v. Turner, 14 Mass. R. 227.

A libel must be signed by the libelant in person; a signing_by attorney is not sufficient. Willard v. Willard, 4 Massachusetts Reports, 506.

The court will suffer a libel to be amended by inserting another act of adultery, and will grant a continuance to the respondent. Tourtelot v. Tourtelot, 4 Mass. R. 506.

Proof of a second marriage, is not such conclusive proof of cohabitation as will sustain a libel for a divorce. Reemie v. Reemie, 4 Mass. R. 586.

If the parties live together after notice of the commission of the crime, a divorce will not be decreed. North v. North, 5 Mass. R. 320.

In Brown v. Brown, Ib., a witness being called to prove the charge, who was supposed to be particeps criminis, the Court said they would not refuse to swear him, but if he should testify that he knew the respondent to have committed the crime, they should inquire of him, with whom it was committed. This was for the purpose of recomme ding to the solicitor-general, to lay the case before the grand jury. But certainly, if the witness had been called, and testified that he knew the fact

to have been committed, he was under no obligation to criminate himself, nor could any confession, extorted from him under the apprehension of committing a contempt of court, if he declined to answer, be used against him with propriety, on an indictment against him for the crime. Suppose R knows that S has committed adultery with his wife, and he libels for a divorce, and summons S into court as a witness, and S, being sworn on the stand, is asked what he knows on the subject of the libel, and in the course of the examination, states, that he knows that on such a day, and at such a place, the woman committed the crime; to all the various questions, how he knows it? Who was the particeps criminis? Was any body else present? Who else was present? &c., &c., he may give the general answer, that he is not bound to answer the question; and if asked, as perhaps he may be, though without much regard to legal principle, whether he himself is the person, he may, in like manner, decline to answer; but if he says that he is not the person, then, it will certainly be contempt of court to decline answering those questions. But, as the law will never place a witness in a dilemma, where he must either commit perjury, or criminate himself, it cannot be considered a contempt of court, to decline answering any question, a direct answer to which, will lay him under such a necessity.

Of the Libel.

The allegation of the crime of adultery in a libel should be sufficiently certain to apprise the respondent of what is to be answered. A mere general allegation, without time or place, of having committed the crime of adultery, and having deserted the libelant, is too loose. Church v. Church, 3 Mass. R. 157. The reason of which seems to be, that however innocent the respondent may be, it will be impossible for him to prepare himself to rebut the charge with witnesses, unless some particular instances are alleged. The libel, however, may be amended, and a continuance granted to the respondent. Ibid.

Where the names of the persons, with whom the adultery is supposed to have been committed, are known, it is said they should be named, in order that the Attorney General may prosecute the offenders; and if they are not known, there must be an averment to that effect in the libel. Church v. Church, 3 Mass. Rep. 157; Choate v. Choate, 3 Mass. R. 391. Quare of the propriety or necessity of this, since it seems so inconsistent with decency and fairness thus, to introduce on the records, in a shameful and scandalous manner, the names of third persons, that nothing can be said to warrant it; unless, in fact, there is a necessary presumption that such persons are guilty of the crime, or that otherwise they never would be so introduced. But since there is no crime so great, but that some have been acquitted of it, it follows, if any respect is given to the verdicts of juries, that there are no crimes so great, but men may be accused of them, and yet be innocent. There is then no right to presume, that a person, named as particeps criminis in a libel, is guilty. The injustice and cruelty of naming a third person in a libel for adultery, as particeps criminis, lie here; that such third persons may have their names handed down, and perpetuated on the records of the state, from generation to genera

tion, with the stigma of an infamous crime attached to them, without having had notice, and without any opportunity of being heard or showing their innocence. Let a case be supposed, and as the law is no respecter of persons, a strong one may be put without any very great improbability. Let it be supposed that a married woman is jealous of her husband, and that she has suspicions of some female of her acquaintance, perhaps a respectable married woman. Suppose she thinks she has the support of strong circumstances, to believe that her husband has committed the crime with this woman, but which, when explained away, are perfectly compatible with innocence. Suppose she libels for divorce, for adultery committed with this woman, and another. Suppose the criminality of the husband with the other woman is conclusively proved, on another specification in the same libel. Now, is it to be tolerated, that the records shall appear in the manner they undoubtedly would in such case, if the libelant must name the particeps criminis, when known. For the libel is against A, for the crime of adultery, committed with B, and also with C. With C it is proved by the evidence of witnesses. Against B, when explained, there appears to be no foundation for the charge. Now the decree of the Court will be, that the allegations of the libel are supported, and therefore a divorce is decreed; the consequence of which is, that two persons, one innocent and the other guilty, are consigned to infamy for disgraceful crimes, without an opportunity of being heard. This is in the highest degree unjust. For, if they are named in the libel as guilty of a crime, and evidence is received, to show that they are so, then they ought to be made parties, and notice should be given them. For, it may very well be, that the husband may be innocent, as respects these persons, and yet be unable to prove it, or, he may have been proved guilty with others, and therefore may be indifferent about showing the innocence of himself and the person really innocent, and yet such innocent person may be able, by proving an alibi, to show conclusively her innocence, but is not permitted, or what may amount frequently to the same thing, receives no notice of the transaction until too late. There is another view of the subject, that shows the extreme impropriety and unreasonableness of this practice. The law gives a person, whose husband commits adultery, a right, on proof of the charge, of being divorced. Justice to the offending party requires merely a distinct specification of the charge, so that he may know what to answer. This may be done by alleging a time and place alone, and suffering the libelant to prove an act of criminality, at no other times or places than are specified in the libel. There is no necessity of naming the particeps criminis on the record. If it comes out on the trial, who that person is, it is comparatively of little consequence, as it is not recorded, and as it is much more unlikely, that a charge should come out from a witness against an individual who was innocent, than that a person charged in the libel, should be so, against whom no witness may dare to appear. But the law, thus giving a right of divorce to an injured party, should be put in force, like other laws. The Court ought to throw no obstructions in the way to hinder the obtaining of a divorce, where the party is entitled to it. But if he is obliged to name the particeps criminis in the libel, he must seek redress at a very great peril. What can be a more infamous libel or slander of a woman, whether married or single, than to charge her, as particeps criminis with an adulterer, in a libel for a divorce? And yet the libelant must run the risk of committing this offence, in en

deavoring to obtain redress for the crime committed against herself. And suppose it turns out, that she cannot substantiate the charge against the woman named. What may not, in the mean time, have been the disastrous consequences to her character and prospects in life. It may have been done in her absence, when she knew nothing of it. Suppose she brings her action for a libel, against the libelant for a divorce, what plea can she have? She could only plead, not guilty, and show probable cause, and the necessity she was under of complying with the rule of the court, in naming the plaintiff, as particeps criminis, with her husband, in the libel for a divorce. That she had no particular malice would probably be inferred from her proving the charge of adultery against her husband, with another person, and thereby obtaining a divorce; and perhaps she might thus avoid vindictive general damages; but how is she to get rid of special damages, which may be alleged and proved in such a case to a ruinous extent, and for which the plaintiff will be entitled to recover to the utmost farthing. To write a mere letter, charging a respectable woman with unchastity, would be sufficient to warrant a jury in giving the most exemplary damages, without any proof of special injury. How much more so to put such a charge on the records of the courts, which are to remain for centuries, thus leaving an indelible stigma on the woman herself, and a stain on all her family?

Of service and notice.

The manner of serving notice of the libel is precisely pointed out in the Revised Statutes, chapter 76, sections 13, 14, 15, 16 and 17. The following decisions are under the provisions of the former

statutes.

The libel must be filed in the clerk's office, and must be served on the defendant fourteen days before the sitting of the court, by personal notice, unless the defendant is out of the commonwealth, in which case newspaper notice is sufficient. Hopkins v. Hopkins, 3 Massachusetts Reports, 159.

When the respondent is not resident within the State, it is not necessary to file the libel in the clerk's office, but it should be so stated in the libel, or the court cannot dispense with personal notice. Choate v. Choate, 3 Mass. R. 392.

The libel must be filed fourteen days before the first sitting of the court; to file it fourteen days before an adjourned sitting, is not sufficient. 5 Mass. R. 197.

The personal notice must be in writing, that is, a copy of the libel and summons; reading is not sufficient. Smith v. Manning, Ex'r. 9 Mass. R. 422.

If the respondent is absent at sea, and expected to retur e court will not proceed upon a notice in a newspaper Mace v. Mace, 7 Mass. R. 212.

If the respondent is not within the county at the time of service, nor at any time after, the court will not proceed on notice left at the last and usual place of abode; actual notice must be proved where practicable. Randall v. Randall, 7 Mass. R. 502.

Where husband becomes insane after the fact charged against him in the libel, the court will not proceed until a guardian is appointed to him. Mansfield v. Mansfield, 13 Mass. R. 412.

Where a husband procures or connives at an adulterous act, a divorce will not be granted. Pierce v. Pierce, 3 Pick. 299.

Divorce a mensa et thoro.

Under the statute 1785, ch. 119, to sustain a libel for a divorce on the ground of extreme cruelty, personal violence must be proved. And therefore desertion of a wife for eight years, and leaving her with a large family of children to suffer great privations, is not sufficient. Warren v. Warren, 3 Mass. R. 321.

A libel may contain a charge of extreme cruelty, as well as a charge for adultery, and the court will decree as seems just and lawful. Young v. Young, 4 Mass. R. 430.

Unprovoked personal violence is sufficient evidence of extreme cruelty, to sustain the libel. French v. French, 4 Mass. R. 587.

Living together after the violence was committed, it is said, will be no objection to granting a divorce, a mensa et thoro. 6 Mass. R. 69. This, however, must depend upon the length of time; it is presumed that if the parties have lived together two or three years in harmony, after an assault and battery, however unprovoked, the court will hardly decree a divorce for that act though it might have been sufficient at first.

Under statute 1810, ch. 119, a wife may be divorced a mensa et thoro, either, 1. Whenever her husband utterly deserts her; 2. Whenever he grossly, or wantonly and cruelly, neglects or refuses to provide suitable maintenance for her, being of sufficient ability thereto. And the court have the same authority in this case as in other cases of divorce a mensa et thoro. Further act, 1820, ch. 56.

Libel for divorce for adultery.

To the Honorable the Justices of the Supreme Judicial Court next to be holden at &c., within and for the county of &c. on &c.

A B of &c., wife of C B, of &c., respectfully libels and gives this honorable court to be informed; that she was lawfully married to the said C B, at &c., on &c., and has had by him four children who are now living, viz. K B, L B, M B, and N B; that your libelant since their intermarriage has always behaved herself as a faithful, chaste, and affectionate wife towards the said C B; but that the said C B, wholly regardless of his marriage covenant and duty, on divers days and times since the said intermarriage, viz. on &c., &c., has committed the crime of adultery with divers lewd women, with one M R, one N R, and one R P, all of &c., and with divers other lewd women whose names are to your libelant unknown; that the said C B and the said A B, in her right, hold in fee simple, real estate of the value of $-, within this commonwealth; that by reason of the said marriage, the said C B has received persoal estate to the value of $-; that the said C B is seize in fee in his own right of a valuable real estate, situate within this commonwealth, and owns and has a large and valuable per