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the defendant, and be joined therein. All questions concerning the sufficiency of such bond shall be determined during the return term.
Sec. 4. When any bond as aforesaid shall be forfeited, the plaintiff shall have the same remedy against the bail, and the bail shall have the same remedy against the principal, and the sheriff, when made a co-defendant, shall have the same remedy against the principal and bail, as is or may be provided by law in cases of bail in other civil causes, and the same proceedings shall be had thereon.
Sec. 5. Any court out of which any writ as aforesaid shall issue, or any judge thereof in vacation, may reduce the sum for which bail is demanded, and the court may accept the surrender of the defendant, and cancel such bond, in the same manner, for the like causes, and with the like effect, as in other cases of bail in civil actions.
Sec. 6. All actions commenced in manner aforesaid, shall be conducted and proceeded on in all things according to the principles and usages of law in actions of detinue. If any verdict for the plaintiff shall omit the price, or value or damages for detention, the court may, at any time, award an inquiry to ascertain the same.
APPROVED: March 3, 1845.
1. Divorces, for what causes, may be decreed.
ings, nature of, and when had.
of party may be used; how marriage proved.
may provide for.
out paying costs.
brought for causes not provided for by law; to
Section 1. In every case in which a marriage has been, or hereafter may be contracted and solemnized between any two persons, and it shall be adjudged in the manner hereinafter provided, that either party, at the time of such marriage, was and continues to be, naturally impotent; or that he or she had a wife or husband living at the time of such marriage; or that either party has committed adultery subsequently to the marriage ; or has wilfully deserted and absented himself or herself from the husband or wife, without any reasonable cause, for the space of two years, or has been guilty of extreme and repeated cruelty or habitual drunkenness for the space of two years; or has been convicted of felony or other infamous crime, it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract ; but no such divorce shall, in anywise, affect the legitimacy of the children of such marriage, except in cases where the marriage shall be declared void on the grounds of a prior marriage.
Sec. 2. The circuit court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony by this chapter allowed; and the like process, practice and proceedings shall be had, as are usually had in other cases in
chancery, except as is hereinafter provided, and except that the answer of the defendant need not be on oath. The proceedings shall be had in the county where the complainant resides, and the process may be directed to any county in the State.
Sec. 3. No person shall be entitled to a divorce in pursuance of the provisions of this chapter, who has not resided in the State one whole year previous to filing his or her bill or petition, unless the offence or injury complained of was committed within this State, or whilst one or both of the parties resided in this State.
Sec. 4. If it shall appear to the satisfaction of the court, that the injury complained of, was occasioned by collusion of the parties, or done with the assent of the complainant for the purpose of obtaining a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of adultery, when adultery is the ground of complaint, then no divorce shall be decreed.
Sec. 5. In all cases for a divorce, where the defendant shall appear and deny the charges in the complainant's bill or petition alleged, the same shall be tried by a jury; but if the bill or petition shall be taken for confessed, the court may proceed to a hearing of the cause, by examination of witnesses in open court; and no confession of the defendant shall be taken as evidence, unless the court or jury shall be satisfied that such confession was made in sincerity, and without fraud or collusion, to enable the complainant to obtain a divorce. But any marriage which may have been celebrated or had in any foreign State or country, may be proved by the acknowledgment of the parties, their co-habitation, and other circumstantial testimony
Sec. 6. When a divorce shall be decreed, it shall and may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. And in case the wise be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, as shall appear reasonable and proper.
Sec. 7. Any woman sueing for a divorce, who shall make it appear satisfactorily to the court, that she is poor and unable to pay the expenses of such suit, shall be allowed by the court to prosecute her complaint without costs, and in such cases, no fees shall be charged by the officers of the court.
Sec. 8. In addition to the causes herein before provided, for divorces from the bands of matrimony, courts of chancery in this State shall have full power and authority to hear and determine all causes for a divorce, not provided for by any law of this State. The same rule of proceeding shall be had as in other cases in chancery, and upon hearing of the bill, or bill and answer, and proofs and exhibits, if the court shall be satisfied of the expediency of decreeing a dissolution of the bands of matrimony, it shall have power to do so, and to make such order with regard to the costs as it may deem right, and also to make such order with regard to the children (if any) and the right of alimony, as it may think proper.
APPROVED: March 3, 1845.
1. Right of dower, how acquired.
widow not entitled to dower as against mort
pagee. 5. Widow entitled to one-third of surplus when
lands of deceased husband sold under mort
gage. 6. Exception to right of dower. 7. Jointure, how acquired, and its effect. 8. Assent of wife to jointure, how evinced. 9. Wife may elect whether she will take jointure
or dower, but shall not be entitled to both.
barred by demise, unless otherwise expressed
substituted. 12. Divorce, its effects on right to jointure and
dower. 13. Adultery of wife, dower forfeited thereby. 14. Wife's right to jointure or dower can not be di
vested, except by her own act. 15. Widow entitled to half the estate in certain
cases. 16. When husband exchanges lands for other lands,
choice of dower, how inade.
required by law.
duty of clerk. 20. Unknown persons interested, how proceeded
against, and their remedy in certain cases. 21. When claim to dower contested, what proceed.
ings to be had. 22. Guardians, when may be appointed. 23. Petitions for dower, how determined. 24. Commissioners, how appointed, and their duties. 25. Extent of right of widow to dower when le
gally set off: 26. When widow has claim to dower in lands in
different counties, how to proceed. 27. Widow's right till assignment of dower. 28. When estate not susceptible of division, how
to proceed. 29. Reports of commissioners, and order of court
thereon. 30. Waste, penalty therefor. 31. Who may petition for assignment of dowcr. 32. Compensation of commissioners. 23. On death of widow, how dower disposed of. 34. Dower not relinquished by widow as execu
trix or administratrix of husband's estate, unless specified in deed of conveyance.
A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless the same shall have been relinquished in legal form. Equitable estates shall he subject to the widow's dower, and all real estate of every description contracted for by the husband in his life time, the title to which may be completed after his decease.
Sec. 2. The widow of an alien shall be entitled to dower of the estate of her husband, in the same manner as if such alien had been a native born citizen of the United States.
Sec. 3. Where a person seized of an estate of inheritance in land, shall have executed a mortgage of such estate before marriage, his widow shall, nevertheless be entitled to dower out of the lands mortgaged, as against every person, except the mortgagee, and those claiming under him.
Sec. 4. Where a husband shall purchase lands during coverture, and shall mortgage such lands to secure the payment of the purchase money thereof, his widow shall not be entitled to dower out of such lands, as against the mortgagee or those claiming under him, although she shall not have united in such mortgage; but she shall be entitled to her dower as against all other persons.
Sec. 5. When, in the cases specified in the two preceding sections, the mortgagee or those claiming under him, shall, after the death of such husband, cause the
land mortgaged to be sold, either under a power contained in the mortgage, or by virtue of the judgment or decree of a court, and any surplus shall remain, after the payment of the moneys due on such mortgage, and the costs and charges of sale, such widow shall be entitled to the interest or income of one-third part of such surplus, for life, as her dower.
Sec. 6. A widow shall not be endowed of lands conveyed to her husband by way of mortgage, unless he have acquired an absolute estate during the marriage.
Sec. 7. When an estate in land shall be conveyed to a person and his intended wife, or to such intended wife alone, or to any person in trust for such person
and his intended wife, or in trust for such intended wife alone, for the
of creating a jointure for such intended wife, and with her assent, to be taken in lieu of dower, such jointure shall be a bar to any right or claim for dower of such wife, in any land of her husband.
Sec. 8. The assent of the wise to such jointure, shall be evinced, if she be of full age, by her becoming a party to the conveyance by which it shall be settled; if she be an infant, by her joining with her father or guardian in such conveyance.
Sec. 9. If, before her marriage, but without her assent, or if, after her marriage, land shall be given or assured for the jointure of a wife, in lieu of dower, she shall make her election, whether she will take such jointure, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both.
Sec. 10. Every devise of land, or any estate therein, by will, shall bar her dower in lands, or of her share in personal estate, uniess otherwise expressed in the will; but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands, and her share in the personal estate of her husband.
Sec. 11. When a woman shall be entitled to an election under either of the two last preceding sections, she shall be deemed to have elected to take such jointure or devise unless within one year after the authentication or probate of the will, she shall deliver or transmit to the court of probate of the proper county, a written renunciation, which may be in the following form, to-wit: “I, A. B., widow of C. D., late of the county of and State of do hereby renounce and quit all claim to the benefit of any jointure, bequest or devise made to me by the last will and testament of my said deceased husband, which has been exhibited and proved according to law, or otherwise, as the case may be,) and I do elect to take in lieu thereof, my dower.or legal share of the estate of my said husband.” Which said letter of renunciation shall be filed in the office of the probate justice of the peace, and shall operate as a complete bar against any claim which such widow may afterwards set up, to any provision which may have been thus made for her in such jointure, or in the will of any such testator, in lieu of dower ; and by thus renouncing all claims, as aforesaid, such widow shall thereupon be entitled to dower in the lands, or share in the personal estate of her husband.
Sec. 12. If any woman shall be divorced from her husband for the fault or misconduct of such husband, except where the marriage was void from the beginning, she shall not thereby lose her dower, nor the benefit of any such jointure; but if such divorce be for her fault or misconduct, she shall forfeit the same; and when a divorce is obtained for the fault and misconduct of the husband, he shall lose his right to be tenant by the curtesy in the wife's lands, and also any estate granted therein by the laws of this State.
Sec. 13. If a wife voluntarily leave her husband and commit adultery, she shall be forever barred her dower, and of the benefit of any such jointure, unless her husband be voluntarily reconciled to her, and suffer her to dwell with him.
Sec. 14. No act, deed or conveyance, performed or executed by the husband, without the assent of his wife, evinced by the acknowledgment thereof, in the manner required by law, shall pass the estate of a married woman; and no judgment or decree confessed or recovered against him, and no laches, default, covin, forfeiture or crime of the husband, shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto.
Sec. 15. If a husband die, leaving a widow, but no children, nor descendants of children, such widow may, if she elect, have in lieu of her dower in the estate of which her husband died seized, whether the same shall have been assigned or not, absolutely and in her own right, as if she were sole, one-half of all real estate which shall remain after the payment of all just debts and claims against the deceased husband : Provided, That in case dower in such estate shall have been already assigned, she shall make such new election, within two months after being notified of the payment of such debts and claims.
Sec. 16. If a husband, seized of an estate of inheritance in lands, exchange it for other lands, his widow shall not have dower of both, but shall make her election as hereinbefore provided, to be endowed of the lands given, or of those taken in exchange; and if such election be not evinced, by the commencement of proceedings for the recovery and assignment of her dower of the lands given in exchange, within one year after the death of her husband, she shall be deemed to have elected to take her dower of the lands received in exchange.
Sec. 17. It shall be the duty of the heir at law, or other person, having the next estate of freehold or inheritance in any lands or estate of which the widow is entitled to dower, to lay off and assign such dower as soon as practicable aster the death of the husband of such widow.
Sec. 18. If such heir or other person shall not within one month next after the decease of said husband, assign and set over to the widow of the deceased to her satisfaction, her dower in, and to all lands, tenements and hereditaments, whereof by law she is or may be dowable according to the true intendment of law, then such widow may sue for, and recover the same, in the manner hereinafter prescribed, against such heir or other person having the next immediate estate of freehold or inheritance, or tenant in possession, or other person or persons claiming right or possession in said estate.
Sec. 19. Every widow claiming dower, may file her petition in chancery, in the circuit court of the county, against the parties aforesaid, stating their names, if known, setting forth the nature of her claim, and particularly specifying the lands, tenements and hereditaments in which she claims dower, and praying that the same may
be allowed to her; and the clerk shall thereupon issue a suinmons to the parties to appear at the next term of the said court to answer the complaint, which shall be served by the sheriff as other writs and process. If the parties do not reside in the county, said clerk shall cause an advertisement to be published, as provided in sections eight, forty-one, and forty-two of chapter twenty-one of the Revised Statutes, notifying said parties that such petition is filed, and requiring them or any of them to appear at the next term of the circuit court and show cause why such dower should not be assigned; and which publication shall be deemed due notice,