Derby v. Derby. at Albany, which shows guilty understanding. He adroitly used the presence of the Rodiers as an excuse to get her to the hotel; she came at once-it showed her willingness. She deceived the Rodiers by the pretence of going home, having artfully concealed the declaration made to Romaine, and went off with Derby, alone, and returned the next morning in just such manner as is consistent with her having spent the night in his room. The intention and determination of both is sufficiently proved, and the opportunity to indulge was ample. She may have gone elsewhere, but in a subsequent conversation with Miss Rodier about this affair, she insisted that she went back to Romaine's, which it is clear she did not do. His unsuccessful solicitation of Mrs. Vanderbeck, clearly proved, shows his disposition to be faithless to his marriage vows. Such repulsed solicitation by a complainant is not, of itself, a bar to a divorce, as was at one time intimated in the English courts; but it will support evidence, otherwise insufficient, of adultery with another. A disposition by Joseph would have made it easy for Potiphar to convict his wife of adultery committed with one less scrupulous. These circumstances are not conclusive; they may be explained, but until explained, there is but one inference. No explanation is given. Either Martha Burst or Derby could explain them, if an explanation could be given. Both are silent. If innocent, Derby owed it to her and to her reputation to call upon her to give the explanation. She is alive, and her residence is known; her testimony could be easily procured. As the case stands, but one conclusion is possible. The testimony is not sufficient to sustain the charge of his adultery with Margaret Morrow, now called Margaret Otis. And although there is cogent proof as to the charge with Jenny Fauselman, yet it is somewhat contradictory; and as that charge is not set up in the answer, and as it is not necessary for the determination of the cause to review it, I shall not give it any further consideration. Hedden v. Hedden. HEDDEN vs. HEDDEN. 1. Unsupported evidence by an alleged paramour as to a wife's antenuptial incontinence, is insufficient to overcome her positive denial. Even if fully proved, such incontinence would be no foundation for a divorce, nor admissible to support proof of her subsequent adultery. 2. A husband who connives at or assents to adultery by his wife with one person, will be deemed as assenting to it with others, and will not be entitled to a divorce for a subsequent act of adultery with a different person. It will not affect the case, that the act of adultery at which the husband connived was not committed. 3. If a husband sees what a reasonable man could not see without alarm, or if he knows that his wife has been guilty of ante-nuptial incontinence, or if he has himself seduced her before marriage, he is called upon to exercise peculiar vigilance and care over her, and if he sees what a reasonable man could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the result. 4. He is not discharged from the exercise of such vigilance by the fact of his having deserted his wife and all his marital obligations for three years, or his having obtained a divorce in another state. If the marriage relation exists in this state, so that he can complain of a violation of its obligations, he cannot claim advantage of his wife's incontinence, when caution on his part would have prevented it. Quare. Whether desertion for three years, under circumstances which entitled the defendant to a divorce before the commencement of complainant's suit, and before any a lultery proved against defendant, would bar the complainant. This cause came on for final hearing, upon the pleadings and proofs. Mr. Keasbey, for complainant. THE CHANCELLOR. The bill states that the complainant was married to the defendant, his wife, in Newark, June 13th, 1864; that he was under twenty, and she eighteen years of age; that he was compelled by the father of the defendant to marry her, on account of his previous illicit intercourse with her, which VOL. VI. E Hedden v. Hedden. had come to the knowledge of her father; that after the ceremony he never lived with her, or had any connection with her; that a child was born about four months after the marriage. That at some time not specified, after the marriage, he discovered that she had been guilty of illicit intercourse with other men before he became acquainted with her, and that she was a common prostitute. That after the marriage ceremony he resided for a year in Newark, and then removed to the state of Indiana; and after having resided there for one year, he commenced proceedings in a county court of Common Pleas for a divorce, and in March, 1867, obtained a decree of divorce from the defendant, which decree he admits to be void and of no effect within this state, for the reason that the defendant was not within the jurisdiction of the court, was never served with process, and never appeared in the suit. That upon his return to Newark in 1867, proceedings were instituted against him by the city authorities, under the supplement to the vagrant act, approved March 4th, 1864, for the purpose of compelling him to support his wife and child; that the justices, on said application, and the Quarter Sessions, on an appeal by him from the justices, held the decree of divorce void, and adjudged him to pay a weekly stipend; that this judgment was removed by him, by certiorari, to the Supreme Court, where the matter is still pending. That after these proceedings were commenced, and sometime between the 1st of January and the 1st of October, 1868, the defendant committed adultery with one James M. Clark, and for this he prays he may be divorced. The defendant, in her answer, admits the marriage at the time stated, admits the ante-nuptial illicit intercourse with the complainant, and the birth of a child soon after the marriage, which she answers was the result of that intercourse. She admits that since the marriage, as is charged by the bill, she had lived with and been supported by her father. Hedden v. Hedden. She denies that the complainant was compelled to marry her, but alleges that it was his own proposition upon discovering her situation. She denies that he did not, after the marriage ceremony, live with her, or have any connection with her, but alleges that for some months afterward he lived and cohabited with her at her father's house, and was there received and treated as her husband and a member of the family. She denies all ante-nuptial intercourse with any one besides the complainant, and that she has, since her marriage, ever committed adultery with James M. Clark, or any one else, and avers that she has always lived a pure and chaste life, except her ante-nuptial intercourse with the complainant. She admits the proceedings under the vagrant act, and the ruling of the courts as to the Indiana divorce. She also admits the youth of the complainant, and her own age, as stated in the bill. The case of the complainant, as stated by him, does not present itself as one entitled to much favor in a court of equity. He debauched a girl of eighteen, was not willing to make the amende of marriage until threatened by her father either with legal proceedings or other steps; then he pledged himself to the injured one, by the most solemn rite of law and religion, to be her husband, and to support, cherish, and protect her, with the deliberate intention of doing neither; he immediately abandoned her, neither supported nor cohabited with her, and let her bear his child without his presence or recognition. After a year he went privily to Indiana, placed on the judicial records there a charge of adultery, which he does not here allege or attempt to prove was true, and in a proceeding of which she had no knowledge, and in which she could make no defence, branded her as an adulteress on the judicial record of that state; that it was upon "due proof" as alleged, only means that the proof was such as did, or ought to, satisfy the court; that the evidence was true is not alleged, nor will it be presumed, because, if true, it would have procured for him a divorce in this state that would have been valid everywhere, and that Hedden v. Hedden. without the necessity of a year's sojourn in Indiana. After his return, and two successive decisions against his attempt to evade his duties as a husband and a father, this woman whom, with her child, he had abandoned for four years, and left to apply to the overseers of the poor for relief, was guilty of adultery. He knew and had tested the strength of her passion and the weakness of power to resist; he knew of her destitution and poverty. Had he performed his duty as a husband, she would have been protected from the perils to which she was thus exposed. After having withstood these trials for nearly four years, she fell. And the complainant now applies for a divorce, not because this adulterer has destroyed his domestic peace, or robbed him of the consortium and society of a wife whose bed he never had shared, whose home he never had entered, but to get clear of the claims of the public upon him for the support of his wife and child, for which the Indiana divorce was not equal. He had for more than four years deserted his wife, and by the law of the state had forfeited his marital right over her at her option, for she was at any time entitled to a decree for a dissolution of the marriage, with proper alimony. This is the complainant's case upon his own showing. I throw out the charges of ante-nuptial unchastity and being a common prostitute, as scandalous and mere abuse, being without names or circumstances, and alleged in such manner that they might be struck out of the pleadings. The proof, in one respect, shows a much better case for the complainant than is set out in the bill. It appears by the weight of evidence, that he lived with his wife for some months after his marriage, at least until after the birth of the child; that he stayed with her several nights each week, occupying the same room and bed; that he was present and gave proper assistance at the birth of his child; went for the physician and paid him. not shown with any degree of think I will be safe in assuming it to have been for six or eight months after the marriage. It does not appear, even How long this continued, is clearness by the testimony; I |