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Vol. IV.)

NEWCOMB's HEIRS V. NEWCOMB.

[No. 8.

riage was practically made one of convenience only, liable to be dissolved at the instance of one of the parties to the contract, and for reasons that were left alone to legislative discretion. By section 72, article 2, State Constitution, it is provided “that the general assembly shall have no power to grant divorces, &c. but by general laws shall confer such power on the courts of justice.'

The legislature, regarding the contract of marriage as higher and more sacred than ordinary contracts, provided the means by which parties interested in the preservation of the marital relation might be protected. It was never contemplated that the effort to maintain this relation by the enactment of proper laws should be construed as transferring to the judiciary a legislative discretion, that, when exercised and resulting in a judgment for a divorce, can never be questioned.

We are not prepared to adjudge that the legislature of the state can delegate to the judiciary such unlimited power over the subject — the power to divorce for any cause, or to dissolve the relation without notice or citation to the parties in interest. The mind of the chancellor would revolt at such a judicial proceeding. The state is equally as much interested in preserving the marital relation as it is in maintaining the judgment of a court dissolving it. When parties come into a court of justice, the right to a divorce is purely a judicial question; and, if the judgment dissolving the relation is void, it must be so treated.

In the case of Meyar v. Meyar, 3d Met., the party divorced married shortly after the judgment was rendered. The wife, who had been proceeded against as a non-resident, afterwards appeared in court, filed her answer, and moved for a retrial of the cause.

This was prior to the Act of 1869, and there was at that time no law denying the defendant in a divorce case the right to apply for a new trial. The same objection was made in that case now urged here: that the party had again married, the judgment was final and conclusive, and no court had the power to disturb it.

This court in that case said: “Neither reason nor policy demands that judgments of divorce should be exempt from the general law applicable to new trials. The law does not favor divorces, and

there is special reason for affording to courts having jurisdiction in such cases every possible means of preventing frauds and correcting any error or injustice committed in the judgment that may be complained of. No appeal lies from a judgment of divorce, and, unless the wrong done can be righted by the court committing it, the party injured is without redress.”

The case of McGuire v. McGuire, reported in 7th Dana, was a proceeding under the statute of 1809, authorizing decrees of divorce for certain causes. The husband against whom the suit was entered was at the time domiciled in the State of Alabama. He had never been domiciled or a resident of this state. A decree of divorce was rendered, and the right of property as between the husband and the wife determined. The case being in this court for revision, the court (Chief Justice Robertson delivering the opinion) said: “There can, we think, be no objection to the manner in which the chancellor divided the estate if he had authority to divorce the parties; but if he had no such authority, the decree concerning the estate was erroneous and should be reversed.”

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Vol. IV.)

NEWCOMB's HEIRS v. NEWCOMB.

No. 8.

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The court also in that case discussed the sovereign power of the state over the marital relation, and its dependency upon the sovereign will, but proceeded to say, “ That the chancellor had no jurisdiction to dissolve the marriage contract;” and, further, “the chancellor's decree, being extra judicial, must be deemed void here as well as elsewhere.” The decree as to the property was reversed, and the appeal as to the divorce dismissed for want of revisory power. These cases are cited to refute the idea that the state, being more interested in the marital relation than the parties to the contract creating it, a decree dissolving the relation is binding, although no jurisdiction is had over the person of the defendant to the action. If the decree in that case was void, in a collateral proceeding between the husband and wife, or those claiming under them, affecting their property rights, this court would necessarily have held that the judgment of divorce was void, and did not alter the status of the parties. In that case the want of jurisdiction appeared from the record.

The evidence in this case shows that the appellee was never ascertained to be a lunatic by any judicial finding; that she was confined in the asylum by her husband; that she was there in obedience to his command, and subject alone to his control, at the institution of the action for a divorce, and when the judgment was rendered; that the domicil and residence of the husband was in the State of Kentucky from the time of their marriage until his death. Under such circumstances she was, as to the husband, neither an absent defendant or non-resident in contemplation of the statute authorizing constructive service; and if she is to be regarded as having been a non-resident, having been in the custody of the husband, and in a place where she could have made no response if she had desired to do so, the service was void. She was warned, but could make no answer, except by the permission of the party warning her.

The husband may no doubt change the actual residence of the wife, so as to authorize strangers to proceed against her as a non-resident, or the wife may voluntarily abandon the husband and take up a residence elsewhere, that would authorize such a proceeding; but when the wife is absent in obedience to the command of her husband, or is so confined by him in an asylum or other place, with no power to return or respond to a summons or order of warning, she cannot be proceeded against by the husband as a non-resident or absent defendant. It matters not how pure the motives of the husband may be; if he can proceed in this mode against a lunatic wife, he can against one who is sane. If the wife had been sane, can there be any question as to the correctness of the judgment? Where is the rule, other than that prescribed by the Code, by which the chancellor, in determining the effect of the service of a summons in a civil action, is to be controlled by the mental condition of the party affected by it. If under his control, and subject to his will, the wife is placed by her husband where she is powerless to respond, if she had the mental power to assert her rights, the chancellor will not stop to inquire whether she was a lunatic or of sound mind, but must pronounce all such proceedings null and void.

In the investigation of this case we have not lost sight of the public interests in the questions involved, or its importance to the parties directly interested. The children (appellants) are made legitimate by the statute,

Vol. IV.)

MARSHALL V. THE ADRIATIC.

(No. 8.

and the right of property is affected only to the extent that they may be compelled to contribute to satisfy the judgment in favor of the appellee ; nor could this court have interfered with the judgment below, if there had been no statute on the subject. The law must be administered as we find it.

We also concur with the court below that a trial of the issues of fact by a jury in the divorce case could be dispensed with by the chancellor; and, if the trial by jury can be deemed a constitutional right in such a proceeding, the failure to direct such a trial in a civil action does not render the judgment void, but merely erroneous. Cooley's Const. Limitations, 410.

The preliminary question raised by counsel for the appellants, as to the right of a person of unsound mind to institute an action by her next friend, was also properly decided. The action was really in the name of the appellee, although the name of the prochein amy appears, and, having no committee, never having been foand a lunatic by any judicial proceeding, the chancellor very properly permitted the action to progress, and, upon the refusal of the next friend to act, would have appointed some one to conduct the prosecution for her. It is also insisted that as the appellee is incapacitated from making an election as to whether she will hold under the will or against it, the chancellor, if required to make the election for her, should determine to abide by the provisions of the will, and require her to take the annual sum of $2,500. Having declared the decree of divorce void, the rights of the appellee become fixed.

This provision of the will could not have been made in lieu of dower, and the chancellor has no power to divest the appellee of her legal rights. The appellee is entitled to dower and distribution in her deceased husband's estate, and the judgment below must be affirmed.

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DISTRICT COURT OF THE UNITED STATES FOR THE SOUTH

ERN DISTRICT OF NEW YORK.

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Where the vacillation of a sailing vessel in the exhibition of her lights is the cause of a

collision with a steamer, the steamer held not to have been in fault, even though the collision might have been avoided if the steamer had adopted a course different from that pursued.

The facts are stated in the opinion.
Thomas B. Stillman f Henry J. Scudder, for the libellants.
Everett P. Wheeler & Joseph H. Choate, for the claimants.
VOL. IV.

23

Vol. IV.)

MARSHALL v. THE ADRIATIC.

(No. 8.

BLATCHFORD, J. On the 30th of December, 1875, the ship Harvest Queen, an American vessel, belonging to the libellants, with a cargo on board also belonging to them, set sail from the harbor of Queenstown, in Ireland, for Liverpool, in England. The steamer Adriatic, a British vessel, sailed from Liverpool for New York, on the same day, and proceeded down the Irish Channel. The libel alleges that when the ship was distant about fifty miles from her place of departure, and was proceeding up the Irish Channel, the wind blowing a stiff breeze from about southwest, and the weather being clear starlight, she was run into by the steamer at about three o'clock A. M., on the 31st of December, the steamer striking the ship on her port bow, with such violence as to cause her, with her cargo, to sink in a very short time after the collision ; that, by said collision, the ship was totally lost, and her master and officers, and all hands on board of her, were lost ; that, prior to, and at the time of, the collision, the general course of the ship was up, and the general course of the steamer was down, the Irish Channel, and their courses crossed but slightly, if at all; and that the collision was caused by the negligence and improper conduct of those on board of the steamer, in not having a good and sufficient lookout, in running at too great a rate of speed, in not keeping out of the way of the ship, and in not stopping and backing in time to avoid the collision. The libellants claim to recover against the steamer, as damages sustained by the collision, the sum of $225,000.

The answer of the steamer avers that the ship was either sunk by a collision with some other vessel than the steamer in the Irish Channel, on or about the 31st of December, or was wrecked on or about that day in said Channel, and that her loss was caused thereby, and not by any collision with the steamer. Without discussing in detail the evidence on the subject, it is sufficient to say that it leaves no doubt in the mind that the steamer, at or about the time and place charged, came into collision with the ship Harvest Queen, belonging to the libellants, in such manner and with such results as to cause the sinking and loss of the ship and of her cargo, and of every person on board of her.

The material question in the case to be determined on the evidence is, as to whether the steamer was in fault. The vessels were sailing on nearly opposite courses. The steamer was heading from west one quarter north to west one half north. The ship was heading about east by south half south. They were thus drawing on to the courses of each other from one point to one point and a quarter. The ship was sailing at the rate of from eight to nine knots an hour, and the steamer at the rate of about twelve knots. The steamer made the green light of the ship at about two points on the starboard bow of the steamer. The red light of the ship was not then visible to the steamer. The white and green lights of the steamer, and not her red light, ought then to have been visible to the ship, and undoubtedly were, and it was her duty to heed them. Under the circumstances thus existing, it was the duty of the steamer to keep out of the way of the ship, and it was the correlative duty of the ship to allow the steamer to keep out of her way, and not to embarrass or hamper the steamer in performing such duty. The position was one of safety. The green lights of the two vessels, and only those, were exposed to each other.

Vol. IV.]

MARSHALL v. THE ADRIATIC.

[No. 8.

There was no exposing of green to red. Under this condition of things, the steamer kept on her course, neither porting nor starboarding, nor slowing nor stopping, nor reversing. It was proper for her so to keep on her course.

She had a right to presume that in the presence of her exposed green light, the ship would continue to expose her green light and that only. There was no obligation on the steamer then to starboard, because the vessels were at such a distance apart, probably two miles, that if both kept their courses, the ship was certain to pass clear, on the starboard hand of the steamer. She would draw more and more on the starboard bow of the steamer. And such was the fact.

The ship's green light opened more to the starboard of the steamer, until it got to some three and a half points on the starboard bow of the steamer.

This was a position of safety. The ship would not reach the path of the steamer until she was astern of the steamer. At this juncture, and some four minutes after the ship's green light had first been seen by the steamer, the ship shut in her green light, and exposed her red light. All the time before that she had exposed her green light, and that alone, steadily, with no glimpse of her red light. Here, then, arose an exigency. Here was danger. The first officer of the steamer, Mr. Bence, was on her bridge, watching the green light off his starboard bow. He had charge of the steamer at the time, and was responsible for her navigation. He had seen the green light for four minutes, and had seen it thus open more on his starboard bow. He could not tell to what species of craft it belonged, whether to a fore and aft vessel, which could sail within five points of the wind, or to a square-rigged vessel, which could not sail nearer to the wind than from six to seven points. He saw a movement in the approaching vessel, indicated by the change in her lights, which it was reasonable and proper for him, under the circumstances, to take as evidence of her intention to throw herself across his onward path. He was called upon suddenly and in an exigency, to determine whether he would do anything, and, if something, what? He could, as to the course of his vessel, do one of three things either let it remain as it was, or starboard, or port. He ported. The libellants insist that he erred in porting ; that, if he had not ported, there would have been no collision ; that he ought to have starboarded, or at least have kept on the same course; that if he had even kept his course there would have been no collision, as the ship could not bave reached his path ahead of him ; and that if he had starboarded he would certainly have sailed away from all danger. It is easy to criticise and to be wise after the event. Mr. Bence seems to have been a good seaman, of experience and capacity, watchful, thoughtful, and deliberate. Much must be left to the judgment of such a man, charged with the safety of a large steamer, and of the lives of those on board, as to which one of two or more methods he will adopt in a given exigency, if it is not shown that the one he adopted was such as to indicate that there was no fair exercise of reasonable judgment in concluding to adopt it. By determining to port and throw the head of the steamer to starboard, Mr. Bence took a course which would certainly, if the approaching vessel continued to display only her red light, very soon bring the vessels on parallel courses, with their red lights exposed to each other. That was safety. To take that course was prudent, and, at the distance apart the two vessels ere,

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