Bokel v. Bokel

The Vice-Chancellor observed: The bill in this cause was sworn to and filed on the thirty-first day of May, one thousand eight hundred and thirty-nine. It contains a specific charge (and none other) of adultery committed with one Emeline Morris, with whom the defendant contracted a subsequent marriage about the commencement of the year one thousand eight hundred and thirty-five and with whom he has since cohabited in New York and latterly at Shrewsbury in New Jersey, where they still live and cohabit, with two children, the fruit of this adulterous intercourse. The reference to the master was, to ascertain these facts. Instead of reporting the fact of adultery committed with Emeline Morris, the master reports that the defendant, in the year one thousand eight hundred and thirty-eight, “ committed adultery in the city of New-York with a woman whose name is unknown.” This is not the charge in the bill; and does not warrant a decree : because it is not the case made by the bill. But if the woman whose name is unknown was Emeline Morris, where were the two children ? Mrs. Homan, the only witness on whose testimony the report can possibly rest, does not speak of any child or children of the parties at the time they lived in her house from December to May ; and yet, according to Egan, another witness, and upon the supposition that the woman now living with the defendant in New-Jersey, is the same woman with whom he contracted a second marriage, &c., they must have had one, if not both of these children at the time they lived at [377] Mrs. Homan’s. But Mrs. Homan’s testimony is hardly sufficient to prove that the woman, who lived with the defendant at her house, is not the complainant in this cause; she might easily be mistaken as to the identity of persons after a lapse of nearly two years; and the master ought to have required corroborative testimony on that point: for it may be presumed that the complainant could easily prove when she and her husband separated and where she has been living since their separation—and particularly that she was not living or cohabiting with him at the time spoken of by Mrs. Homan. With regard to Woodruff and Egan’s testimony, it fails to prove the allegations of the bill, both as respects the defendant’s cohabitation with Emeline Morris and any cohabitation with any other woman previous to the time of filing this bill. They only speak of what they have observed very recently and since this bill was filed. If the complainant thinks she can prove the specific charges contained in her bill, the case may be referred back to a master. But, upon the present report and testimony, a divorce cannot be had. Mr. D. Graham, Jr., for the complainant.