Edwards v. Edwards.

CHRISTOPHER EDWARDS v. NANCY EDWARDS.

A petition for divorce, because of adultery by the defendant, need not allege that the petitioner has not been guilty of adultery.

PETITION FOR DIVORCE, heard ex parte before Buxton J., at Fall Term 1867 of the Superior Court of YANCEY.

The petition prayed for a divorce on account of adultery by the defendant. Upon reading it to the court, it appeared to contain no allegation that the petitioner himself had not been guilty of adultery. Thereupon the court declined to proceed unless the petition was amended upon that point. The petitioner excepted to this ruling, and declined to amend as required, but offered to submit his conduct and character to the jury on a proper issue. His Honor therefore dismissed the petition, and the petitioner appealed.

Merrimon for the appellant.

No counsel contra.

"a

PEARSON, C. J. It is a maxim in courts of equity, that “ party must come in with clean hands," and probably it would be good policy to require one who files a petition for a divorce, to purge his conscience in the manner indicated by his Honor. It certainly would prevent a great many applications.

But the subject of divorce is regulated by statute, Rev. Code, ch., 39, "Divorce and Alimony," and there is nothing in the statute to authorize a construction, which would empower the court to impose a "test oath" of this kind. On the contrary, the fifth section, which declares what matter shall be set out in the petition is silent as to an averment of

State v. Cook.

this kind, and the tenth section provides that, if such matter shall be proved, "the same shall be a good defence, and a perpetual bar against the suit," thus expressly making it a matter of defence, and no where intimating that the party shall take an oath of his own innocence as a condition precedent to the right of instituting the suit.

Order in the court below reversed. This will be certified.

PER CURIAM.

Order reversed.

STATE v. JOHN D. COOK.

The amnesty act of 1866-67, ch. 3, was not intended to exempt soldiers from punishment because they were soldiers, but only for acts committed by them as soldiers; therefore:

Where the prisoner was charged with breaking a dwelling house and stealing a watch, money, &c. and he failed to show that he acted under military orders, or in the discharge of a military duty, the fact that he was a soldier was held so be no bar, under the plea of the amnesty act, to a prosecution for burglary.

It appearing in this court, upon appeal by a prisoner, that a verdict of guilty had been entered below, the court cannot arrest the judgment because the judge had not the power to impose the punishment ordered by him, but as the appeal vacated that judgment, must send the case down for such judgment as the law allows.

(State v. Blalock, ante p. 242 cited and approved.)

BURGLARY, tried before Gilliam J. at Fall Term 1867 of the Superior Court of MCDOWELL.

The prisoner was indicted in the Superior Court of Rutherford, Spring Term 1867, with one Alphonzo Johnston, for

State v. Cook.

breaking into the house of one J. A. Sweet in the night-time, and stealing a rifle, a watch and fifty dollars in gold. The prisoner was arraigned in that court, but upon affidavit his trial was removed to McDowell.

The fact of the breaking and robbery by the prisoner was established and he relied on the plea of the act of "Amnesty and Pardon,” ratified the 22d day of December 1866. The prisoner entered the Confederate army as a conscript in 1863 but was a deserter in the month of February 1865, when the offence was committed. These facts being admitted a verdict of guilty was entered subject to the opinion of his Honor as to whether the prisoner could take any benefit from the above act of Assembly. The court, being of opinion that he could not, under a military order issued by the Commander of this District gave judgment of imprisonment against the prisoner, and he appealed.

Merrimon, for the appellant.
Atto. Gen., contra.

READE J. The amnesty act of 1866--7 provides that no officer or private, in either the United States or Confederate armies, shall be held to answer on any indictment for any act done in discharge of any duties imposed on them by the laws of the United States, or of the Confederate States, or by virtue of any army order. And in construing that act, in State v. Blalock, ante 42, we said that "it embraces all who may be supposed to have committed crimes or injuries, by reason of their connection with the late war, whether they were officers or privates; whether they were of the Federal or Confederate forces; and whether they have been convicted or not." The defendant craves the benefit of that act. But it cannot be allowed him; because it does not appear that his offence had any connection with his war duties.

State v. Cook.

It is not alleged that he acted under any military order, or in the discharge of any military duty. He is charged with breaking a dwelling house and stealing a rifle, a watch and fifty dollars. It is not to be presumed that such conduct had any connection with his war duties. It was not the intention of the act to exempt persons from punishment merely because they were soldiers; but only for acts which they committed as soldiers.

There was a motion in arrest of judgment, for the reason that the punishment ordered by his Honor was unauthorized. Suppose that to be so, judgment, because there is of record and some judgment is necessary.

we cannot arrest the the verdict of guilty,

The appeal vacates the judgment which was announced, and we can only say that there is no error in the record, and send the case back for such judgment as the law allows. There is no error. Let this be certified, &c.

PER CURIAM.

Judgment affirmed.

Wood v. Wood.

MARY A. WOOD v. JAMES A. WOOD.

An order for alimony pend. lite creates a debt by record, and may be enforced by either a rule and consequent attachment, or by a fi. fa.

Such an order is not necessarily affected by the failure of the petitioner to obtain the relief prayed for.

One who has been committed under such an attachment can be discharged only by payment, or by resorting to the relief given by the insolvent debt

or's act.

The act of 1866-67, abolishing imprisonment for debt, does not embrace cases of commitment under attachment for a failure to comply with an order of court.

(Clerk's Office v. Allen, 7 Jon., 156; cited and approved.

MOTIONS in a Divorce Cause, heard before Warren J., at a Special Term of the Superior Court of WAYNE, held upon the 1st Monday of January 1868.

The petition was for a divorce from the bonds of matrimony, and at a previous Term alimony pendente lite had been granted. The defendant having failed to comply with the order was, after a full hearing, at Fall Term 1867 adjudged to be in contempt, and was thereupon committed. At the Special Term the divorce cause was tried, and decided. against the petitioner.

Thereupon the defendant moved that the order allowing alimony, and the order committing him for a contempt, should be rescinded, and that he should be discharged from imprisonment.

The court, pro forma, refused to allow either motion, for want of power; and the defendant appealed.

Bragg, for the appellant.

There are two kinds of contempt-one direct (ex. gr. an indignity offered to the court) for which a party may be punished