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No. 295.

Book 1, part 2, tit. 6, chap. 7, sec. 2, § 1, art. 1.

No. 296.

295.-1. The causes which existed before marriage are, precontract, or the marriage of one of the parties existing at the time of the marriage sought to be dissolved; consanguinity, or that degree of kindred within which marriage is forbidden by law; impotence, when incurable ;(a) idiocy, lunacy, or other mental imbecility, which renders the party subject to it incapable of making a contract; fraud, when it has been exercised to induce the marriage; and in some states, affinity within certain degrees. (b)

296.-2. Divorces may also be granted for causes which have arisen since the marriage took place, the principal of which are adultery and cruelty.

Adultery, or the criminal carnal connection between one of the spouses and any person of the opposite sex. But if the adultery has been condoned, that is, forgiven by the innocent spouse, which forgiveness is evidenced by cohabitation, a divorce will not be granted. (c) Nor will adultery be a sufficient cause for a divorce when the party complaining has been guilty of the same offence.(d)

Cruelty, which consists in those acts which affect the life, the health, or even the comfort of the party aggrieved, and give a reasonable presumption of bodily hurt.(e)

Desertion, which is the act of one of the spouses in leaving the other, without just cause, for the purpose of causing a perpetual separation. The time which must elapse after the malicious desertion, is generally regulated by statute in the several states.

(a) Keith v. Keith, Wright's R. 518.

(b) Verm. Rev. Stat. t. 16, c. 63, s. 1.

(c) Barnes v. Barnes, Wright, 475: Questel v. Questel, Wright, 491; Bouv. L. D. Condonation; Quincy v. Quincy, 10 N. H. Rep. 272; Phillips v. Phillips, 4 Blackf. 131; Hall v. Hall, 4 Ñ. H. Rep. 462.

(d) Christianberry v. Christianberry, 3 Blackf. 203.

(e) Bouv. L. D. Cruelty. By the French Law, while divorces were granted, one of the causes was the libel or slander of one of the spouses by the other. In our jurisprudence, I am not aware that the wife has any remedy against her husband for slander.

No. 297.

Book 1, part 2, tit. 6, chap. 7, sec 2, § 1, art. 2.

No. 298.

In some states the condemnation to punishment for some infamous crime, (a) and being charged with an infamous crime, and a fugitive from justice. (b)

Having formed a connection with some religionists whose opinions and practices are inconsistent with the duties of marriage is, in some states, cause for divorce.(c)

Refusal on the part of the husband, when of sufficient ability, to provide necessaries for the subsistence of his wife, is also a cause for divorce in some states.(d) Habitual drunkenness is also a sufficient cause by statutory provisions in some of the states.

Art. 2.-Effects of a divorce à vinculo.

297. This divorce severs the marriage tie, and the husband and wife can marry again, in general, as if they never had been married before, provided, (in some states) that when they have been divorced for adultery, they shall not marry the partner of their guilt.(e)

298. The effects of such a divorce on the property of the wife are various in the several states. When the divorce is for the adultery, or other criminal acts of the husband, in general the wife's lands are restored to her; (f) when it is caused for the adultery, or other criminal acts of the wife, the husband has in general some qualified right of curtesy to her lands; when the divorce is the consequence of some preëxisting cause, as consanguinity, affinity, or impotence,

(a) Ark. Rev. St. c. 50, s. 1, p. 333.

(b) Laws of Lo. Act of April 2, 1832,

(c) In Kentucky and Maine. Dyer v. Dyer, 5 N. H. Rep. 271.

(d) In Vermont and Rhode Island. See Amsden v. Amsden, Wright's R. 66.

(e) Ante, n. 255. This is also the rule of the civil law. Poth. Du Mariage, part 3, c. 3, art. 7; 1 Toull. n. 555.

(ƒ) Estate of Kintzinger, 2 Ashm. 455; Barber v. Root, 10 Mass. 260; Star v. Pease, 8 Conn. 541. In Massachusetts, the interest acquired by a judgment creditor of the husband, by a levy of his execution upon the rents and profits of the wife's real estate, is determined and defeated by a decree of divorce á vinculo in favor of the wife. Barker v. Root, 10 Mass.

No. 299.

Book 1, part 2, tit. 6, chap. 7, sec. 2, § 2, art. 1, 2.

No. 301.

in some states, as Maine and Rhode Island, the lands of the wife are restored to her. (a)

A divorce à vinculo is in general a bar to dower; but in Connecticut, Illinois, New York, and, it seems, in Michigan, dower is not barred by a divorce for the fault of the husband. In Kentucky, when a divorce is caused for the fault of the husband, the wife takes as if he were dead. (b)

§ 2. Of divorces à mensâ et thoro.

299. A divorce à menså et thoro is a decree of a competent tribunal, that husband and wife shall be separated.

Art. 1.-For what causes granted.

300. This divorce is never granted for causes arising before the marriage. The causes for which it is decreed are in general cruelty, desertion or such other abuses as render the life of the innocent party burdensome.

Art. 2.-Effect of a divorce à menså et thoro.

301. This divorce is a mere separation, and does not affect the rights of the parties as to property. And if the husband is bound by the decree to pay the wife alimony, and he does pay it, he is not responsible for her future debts.(c)

In England, it has been expressly decided that a woman divorced à menså et thoro, living separately from her husband, cannot sue nor be sued as a feme sole. (d) But in Massachusetts, a different rule has been adopted.(e)

The divorce à mensâ et thoro, is only a legal separa

(a) 1 Hill. Ab. 51, 2.

(b) 1 Hill. Ab. 61, 2.

(c) Bac. Ab. Baron and Feme, (M); Ellah v. Leigh, 5 T. R. 679. (d) Lewis v. Lee, 3 B. & Cr. 291; See Lean v. Shultz, 2 W. Bl. 1195; Marshall v. Rutton,, 8 T. R. 845; Bar. Ab. Baron and Feme, (M).

(e) Dean v. Richmond, 5 Pick. 461. Read the forcible argument of Parker, C. J.

No. 302.

Book 1, part 2, tit. 7, chap. 1.

No. 303.

tion, terminable at the will of the parties, the marriage continuing in regard to every thing not necessarily withdrawn from its operation by the divorce; for example, if there be a divorce à mensâ et thoro, and afterward a legacy be given to the wife, by the common law the husband may release it. (a)

TITLE VII.—OF PATERNITY AND FILIATION.

302. Having examined the forms, obligations, rights and duties which arise from marriage, and the manner in which it is dissolved, it is natural, in the next place, to explain the principal end of marriage, paternity, filiation, and legitimacy.

Those children who are born in wedlock, or under the sacred veil of marriage, are alone legitimate. Legitimacy confers on them the rights of family and kindred, of which natural children, born of an illicit union, alike reproved by morality and law, are deprived.

It seems, therefore, proper to lay down the rules which point out with certainty paternity and filiation, either legitimate or illegitimate.

For that purpose this title will be divided into three chapters; the first will treat of legitimate children, born in wedlock; the second, of the proof of legitimacy; and the third, of natural children.

CHAPTER I.—OF LEGITIMATE CHILDREN BORN IN WEDLOCK.

303. Paternity and filiation are correlative terms, the first of which signifies the quality of father, and the second that of child. Filiation arises from the birth which we receive from such a father or from such a mother.

The mother is always known by evident signs; whether married or not, she is always certain: mater

(a) 5 Pick. 468; Bac. Ab. Baron and Feme, D; 1 Roll. Ab. 343; Stephens v. Tolty, Cro. Eliz. 908.

No. 304.

Book 1, part 2, tit. 7, chap. 1.

No. 305.

semper certa est etiamsi vulgò conceperit. (a) There is not the same certainty as regards the father; the mother is alone certain of the fact, and the relations may not know, or feign ignorance, as to the paternity; the law has therefore established a legal presumption to serve as a foundation for paternity and filiation.

304. When the mother is married, her husband is presumed to be the father of the children born during the coverture; or, if her husband be dead, the presumption is still that he was the father, provided the child has been born within a competent time after the coverture determined. This presumption arises whether the child was conceived during the coverture or before: pater is est quem nuptiæ demonstrant.(b)

The rule is founded on a double presumption: one that there has been a cohabitation between the parents, not only before birth, but before and at the time of the conception of the child: and the other, that the mother has faithfully observed the vow which she made to the husband at the time of marriage. Of these two presumptions, the first one only is essential. The innocence of the mother is always presumed.

It is then the marriage, the actual or presumed cohabitation, and presumption of innocence, always favored by the law, which forms the first principle adopted in relation to filiation, as the foundation of society. The child born in wedlock has for its father the husband of its mother.

305. But a child is conceived a long time before his birth. He lives in ventre sa mère before he is born.

He may then be conceived before the marriage, and be born while it subsists. In this case he is presumed to be legitimate, although the marriage may have taken place but a very short time before its birth ;(c) or, having been conceived during the marriage, it may not have been born until after that contract was dis

(a) Dig. 2, 4, 5.
(b) Dig. 2, 4, 5.

(c) 1 Bl. Com. 454, 455.

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