McQuigg v. McQuigg

Perkins, J. In January, 1854, Edmund H. McQuigg — 295 — filed his complaint in the Marion Circuit Court, praying a divorce from his wife, Eliza Jane McQuigg. On affidavit of non-residence, notice was given by publication. In May following, the divorce was granted. In August, 1857, said Eliza Jane filed her complaint in said Marion Circuit Court, praying that the judgment of divorce be vacated, set aside, and held for naught, on the ground of fraud in obtaining it. Trial, and judgment vacating the judgment of divorce. The code provides as follows: “Sec. 43. Parties against-whom a judgment has been rendered without other notice than the publication in the newspaper herein required, except in cases of divorce, may, at any time within five years after the rendition of the judgment, have the same opened, and be allowed to defend. “Sec. 44. But before any judgment shall be opened, such party shall give notice to the original complainant, or his heirs, devisees, executors, or administrators, of his intention to make application to have the judgment opened, as the Court, in term, or the judge thereof, in vacation, shall require; and shall file a full answer to the original complaint, and an affidavit stating that during the pendency of the action, he received no actual notice thereof, in time to appear in Court and object to the judgment, and shall also pay all such costs of the action as the Court shall direct.” 2 R. S. p. 37. The code further provides that “no complaint shall be filed for a review of a judgment of divorce.” 2 R. S. p. 165, § 586. The statute of 1859, on the subject of divorce, contains a like provision. Acts of 1859, p. 109. This Court held that judgments of divorce could not be set aside under the code of 1843. McJunkin v. McJunkin, 3 Ind. R. 30. The policy of our state seems to have been, and to still-be, against disturbing divorces granted. This has been induced by a consideration of the consequences necessarily incident to an opposite policy. This case affords an — 296 — illustration. "Within the three years between the granting of the divorce, and the setting of it aside, Edmund H. McQuigg had married another woman. T. D. and R. L. Walpole and K. Ferguson, for the appellant (1). L. Barbour and J. H. Howland, for the appellee (2). In Woolley v. Woolley, 12 Ind. R. 663, a doubt was expressed whether the common-law right to set aside a judgment of a superior Court by bill in chancery for fraud, or by a complaint in the nature of such a bill, had not been superseded entirely by the various provisions enacted into our code of practice, under which judgments may be vacated. Further reflection has confirmed us in the opinion that such is the fact, and that the statutory modes must be resorted to. This being the case, it follows that judgments of divorce can only be set aside upon a motion for a new trial, made within the time allowed therefor, and that the suit in the case now before us cannot be maintained. Per Curiam. The judgment is reversed with costs. Cause remanded, &c. Footnotes [*] This doctrine is asserted in a late case, by Davies, J., in the Supreme Court of New York. We cite it, not to indorse it throughout, but as sustaining the principle contended for. See at the end of this brief, Note B., from report in-the Bailij Times newspaper. — 309 — Mary Talcott, defendant’s cousin.—Said lie was going to Indiana to get a divorce. One year’s residence necessary. Must have a divorce. Could not get one in New York—could not find a cause of divorce in New York. Substance of frequent conversations, that he was going to Indiana to get a divorce. Spoke of nothing else as his object. This was between his first and second trip west. Charlotte Brown.—Said he was going to Indiana to get a divorce. Could get one easier and cheaper there. Resumed his business when he came back. The laws, he said, were best in Indiana. Am sure he told me he went west to see what the laws were. When he returned, said he had sold out. That Indianapolis was on old Dutch place—too many old Dutch fogies there. Margaret Falkner.—Said he was going west to get a divorce. Took charge of his business on his return. N. W. Davis.—Said he was getting a divorce in Indiana. Jesse McQuigg.—Is brother of the defendant. Said he was going to Indiana to get a divorce. Because he could not get one in New York. This was after he had been to Indiana. Left his children in New York. In New York, separation was not sufficient. Said he had got a divorce. Talked this to any one. Came back in the spring, and then went away to got married. Did not then get married, as there was some fear about the divorce. Said he must go into business in Indiana, to enable him to get a divorce. Mary E. McQuigg, daughter of defendant.—The defendant resided in Barton, Tioga county, New York—had resided there over since witness can remember. He went from home west, in the spring of 1853—was absent some eight or ton days. Said he went to Indianapolis. After his return, he remained in Tioga county until November, 1853. Carried on his usual business on the farm, during 1853, till November. He then said he was going to Indianapolis, and stated he would be gone nearly all winter. He returned to Tioga county in March, 1854. During the winter, he wrote several letters, saying he would be home in April—but he came back in March. After his return, in March, he remained until September, 1854. He then removed his furniture and family to Elmira, Chemung county, New York, and said that place would probably be our home. We were there about one year, when he went away, leaving myself and sister at school. He took no visible property, nor any member of his family. Said ho would be gone but a little while—he had some little business there. This was when he went to Indianapolis. Defendant carried on farming in New York—the lumber business in Michigan. Never heard of him being in the candle making business in either of those states. I have heard him say that he did not like Indianapolis—that it was not a very pleasant place. Dewitt D. Duryea.—Knows defendant started for Indiana in Jidy, 1853, and returned in September. Told witness, before he started, that ho was going west to obtain a divorce. After coming back, in September, he remained in Barton until November, and then returned to Indiana, and remained there until about the 15th or 20th of March, 1854. On his return, myself and brother purchased his farm. He remained in Barton until about the 10th of April, and then was back and forth from Barton to Owego, until some. time in May or June, when he started for Nebraska. On his return from Neb-aska, he removed his furniture to Elmira, and lived there until some time in the spring of 1855, when he removed to Michigan. When ho returned from Indiana, in the spring of 1854, he told me he had not got through with the business between himself — 310 — and his wife. I received a letter from him, in 1854, in February. When he left, he placed his farm and business in the hands of Alvah Archibald, and took into his own hands. His household furniture remained in the house, on the farnl; until August, 1854. On his return, in March, 1854,I asked him how he liked the country, and he said, not well enough to go there to farm it. William Bensley.—Defendant resided in the town of Barton, Tioga county, up to 1854, and moved to Elmira, in 1854; resided there about one year. Then moved to the state oí Michigan. In 1853, in November, ho went west. He told witness, about the time he left here, in 1853, that he was going to Indiana to get a divorce. He had previously told me that he thought of going to Pennsylvania, but he would have to stay there too long to gain a residence; it would take a year to gain a residence. Ho returned from Indiana in March, 1854. Soon after ho returned, he told me ho had got a divorce. Resumed his business here. Remained here, at Barton, and in this vicinity, till the fall of 1854, then moved to Elmira. In May or June of 1854, he was absent about three weeks, and told me he had been to Nebraska, with Judge Avery. Owen Cullins.—Defendant said he came west to see what prospect there was for business in the west. If he could suit himself in the west, he would sell out in the east and come west. Talked of the lumber business. Said he had a farm in the east, and his family was there. Put up a candle factory. Judge Avery, for defense.—We started from New York together, say in April or May, 1854. We came by Indianapolis, and he was to go to Nebraska with me. I loaned him money to bear his expenses. ¡ Can’t tell how long we remained in Indianapolis—several days. Didn’t come hereto have McQuigg get his divorce. The case was tried here. I was in Court when it was tried. McQuigg put up at a hotel, and stayed there till we went to Nebraska. In the fall of 1854, he was in Michigan, and in 1855, removed to and became a permanent resident there. Mr. Gulick.—Don’t know when McQuigg left Indianapolis, in 1854. We had some negotiations for sale of the factory to me, in summer of 1854, about the time he started to Kansas or Nebraska. We have presented this summary to show the ground upon which the jury proceeded, in finding that the appellant had never any residence in this state. We shall go into no discussion upon the evidence. We ask for it merely an examination, particularly of that of Mr. and Mrs. Waldo, witnesses for the defense. We are very sure there can be no doubt that McQuigg had, at no time, a residence in this state. We propose to notice, as far as may be necessary, the other points presented in the record. The errors assigned, are the following: 1st, overruling the demurrer to the complaint; 2d, overruling the motion for a new trial; 3d, overruling the motion in arrest of judgment; 4th, overruling the motion for judgment in favor of the defendant non obstante veredicto; 5th, rendering the judgment which was rendered. So far as these points are concerned, we have nothing further to urge. There are various exceptions taken, in the course of the proceeding, by the defendant’s counsel, which are not assigned for error. We, therefore, ask the special attention of the Court to the assignment of errors. Those not already enumerated, are: 6th, overruling motion for a bond for costs; 7th, overruling motion to suppress the depositions of Mary E. McQuigg, Charlotte Brown, Warren Bensley, M. H. Hollensbeck, Margaret Falkner, N. W. Davis, and — 311 — Eliza W. Farnham; 8th, the refusal to give the charge asked by the defendant; 9th, the giving of the 4th, 8th, and 9th charges given by the Court. Of these, briefly, in their order. As to the bond for costs: We insist that the Court decided properly that, in this case, no bond for costs should be required. The divorce proceeding admits that the plaintiff had been the wife of the defendant. She comes forward in this suit, and proposes to prove that the judgment of divorce was procured by fraud; that the Court was imposed upon by a false pretense of residence, and that no jurisdiction over the cause ever existed. Upon the double view that it was a divorced wife seeking to annul the judgment of divorce, and that it was, in some degree, a public proceeding to vindicate the purity of the Court, it was ruled that no bond could be required. Eurther, there was prayed a change of venue, by the defendant, which was granted, and a judgment for the costs against him up to that time. It afterwards appears in the record, that the cause had been followed to Johnson county, where it was agreed in writing that it should be ordered back to the Manon Circuit Court, to be reinstated on the docket. The motion for costs was not afterwards renewed. And finally, “the merits of the cause have been fairly tried and determined in the Court below.” 2 R. S. p. 163.—Rockhill v. Spraggs, 9 Ind. R. 30. Under our code, the ruling in Griggs v. Voorhies, 7 Blackf. 561, could not have been made. The spirit of the decision in Culley v. Laybrook, 8 Ind. R. 285, is in harmony with this view. As to the depositions: The assingment of errors complains of the refusal to suppress one entire deposition, that of Mary E. McQuigg. This witness was examined under an order of the Circuit Court. 2 R. S. p. -86, § 249. There was no motion made for a continuance, on the. ground that the deposition was not filed in time. 2 R. S. p. 88, § 263. The deposition was taken in December, 1857; the cause was tried in January, 1859. These observations are sufficient to satisfy the Court that the motion to suppress was properly overruled. The assignment further complains of the refusal to suppress the depositions Charlotte Brown, Warren Bensley, Matthias H. Eollensbeck, and Nathaniel W. Davis. It is difficult to understand precisely what depositions are meant by the counsel. There are on file two depositions of Davis. There are also two Bensleys whoso depositions were read to the jury, John and William; but there does not appear on the record the deposition of any one named Warren Bensley. We infer from the written motion made by the defendant, asking the suppression of depositions, that the design is to assign for error parts of the deposition taken by the plaintiff before John Ripley, Esq., at Owego, New York. The motion is made to suppress “ all of Warner’s deposition, marked B.” This is, perhaps, meant to apply to the deposition of Samuel Warren. “All of John Bensley’s, marked C. All of Matthias Hollensbeck’s deposition, marked D. All of Margaret Falkner’s deposition, marked E. All of Nathaniel W. Davis’ deposition, marked E.” And the reasons assigned in the motion are, that the depositions are irrelevant to the issue; that the certificate is irregular; and that the commission had expired, from the 7 th to the 12th of October. Referring to the deposition, it will appear that the commission is directed to John Ripley, Esq., who is authorized, at his office, in Owego, Tioga county, New York, on the 6th day of October, 1857, to take depositions on behalf of the plaintiff. The defendant attended every day, and cross-examined; andón the last day, proposed to introduce witnesses on his own behalf. The certifi — 312 — cate was drawn with great care, and is, in every respect, in conformity with the statute. It has no official seal, hut there is nowhere an objection on this ground. It is alleged in the bill of exceptions, but not in the motion to suppress, that “It does not appear by the depositions, or certificate, that they were taken before any person or officer authorized by law to take and certify depositions.” Now this, although somewhat broader language than is used in the motion to suppress, is not an objection for the want of authentication of the official character of the officer. Such authentication is not to be found in the deposition or certificate. How is the Court to say that it does not appear that Ripley was not a person authorized to take depositions. Because he is not described as an officer? No official character is required, other than that which arises from his special employment as a commissioner. The common law power of the Courts to appoint commissioners to take depositions, is continued by the statute. 2 R. S.p. 84, § 245.—Id. 87, § 260. And it is clear the statute does not mean the class of officers appointed by the governor to take depositions in other states. They are officers, and need no special appointment by the Court, in any case. The statute, moreover, at § 260, last cited, distinguishes between officers and commissioners. The latter are mere creatures of the Court, appointed pro re nata. It may be urged that, in this instance, there does not appear, pursuant to § 245, that an appointment was made by the Court. But how does the Supreme Court know that fact? Ror all that appears, such an appointment may, or may not, have been made. It is very certain that no objection has been made to the deposition, for the want of such an appointment. The record discloses the fact that a commission was issued by the clerk, directed to Mr. Ripley. Section 60 declares that no order of Court shall he necessary. If none is required, the deposition is good. If one is required, no exception for the want of an order of Court, has been taken. So far as the objection goes to the want of relevancy, the defendant has had the full benefit of it; the Court below instructed the jury that there was no point to bo considered but the question of the defendant’s residence. Lewis v. Lewis, 9 Ind. R. 105. • If it can be possible that the motion to suppress was improperly overruled, the objection only goes to that part of the testimony which touched the question of residence. We have sufficiently vindicated the deposition of Mary E. McQuigg. That of Mrs. Farnham contains nothing upon the subject of residence. There remain, then, the depositions of Brown, Warren, Bensley, Hollensbeck, Falkner and Davis. Leaving their evidence entirely out of the case, it will be found that abundance of testimony remains to support the verdict. If so, no reversal can be had. Parker v. The State, 8 Blackf. 293.—Billingsley v. The State Bank, 3 Ind. R. 375. The depositions last named, are but parts of the whole, taken at Oweqo, before Mr. Ripley. We suggest that the motion to suppress a part, cannotgo to a question affecting the admissibility of the entire deposition. The defendant, confining his attack to the deposition of the witnesses named, admits the regularity of the deposition, so far as the other witnesses named in it are concerned. The regularity of the deposition to this extent is, therefore, conceded; and the instrument if regular for one purpose, is regular for all purposes. As to the charges given and refused, we shall make no comment upon them. — 313 — The instructions of Judge Major were full and clear upon the only point submitted to the jury; the only point to which the jury responded. Wo have thus discussed the real and vital question in this controversy, as fully and forcibly as it is in our power to do. The minor questions all yield to the consideration, that it appears from the record the cause has been fully tried and determined upon its merits. We are well aware that there are embarrassing considerations affecting one of the parties, upon which a strong appeal may be made to the Court. We might urge, on the other hand, the cruel injury which the defendant has inflicted on the plaintiff. He has left her to poverty. He has deprived her of her children. He has, by placing her in the position of a woman divorced at the suit of her husband, sought to impair her good name. But we care nothing for the influence of such considerations, as we know the case ought to be decided upon principle. We believe it will be so decided. And the settlement of the case in accordance with principle, will certainly convey a salutary lesson to that large class of discontented or lecherous pilgrims seeking the Mecca of divorce, who turn their faces towards Indiana, as the happy region where the judgment they wish can be obtained the most easily and the most cheaply. It will secure private rights, by vindicating the purity of public justice. Counsel added the following notes to their argument: Note A.—Allen v. McClellan, 2 Jones, 12 Penn. St. R. 328. 1. The Court of Common Pleas have the power to vacate a decree of divorce, entered at a previous term, where it was obtained by fraud on the Court, although a marriage had been contracted subsequently, on the faith of such decree, with a party thereto, and issue born. 2. A decree reciting that the former decree was vacated for such causes, is conclusive, after the time for an appeal has elapsed, though there is nothing on 'the record to show that proof of the fraud was made; and, although it was admitted that, when service of notice of the intended application to vacate was made, at the reputed residence of the libellant, she was out of the state. Assumpsit on a promissory note, drawn by the defendant at four months, in favor of Lucretia Bleeker, dated December 5th, 1845. On the 16th day of January, 1846, Wheatley, for himself, and Lucretia, his wife, (late Bleeker) indorsed the note to the plaintiff. A case was stated in the nature of a special verdict, and the facts were these: The payee of the note was married to Bleeker, in 1840. In 1845, it libel for a divorce was filed by her in the Court of Common Pleas of Philadelphia, alleging desertion and cruel treatment, The record showed that a copy of the interrogatories to be propounded to witnesses, and the notice of taking the testimony, was posted in the prothonotary’s office ten days before the examination of witnesses. The evidence was taken and returned, and a decree of divorce entered November 22, 1845. A certified copy of this decree was exhibited to Wheatley, by the father of the libellant, upon the faith of which Wheatley married her, on the 12th of January, 1846. On the 13th of February, 1846, Bleeker applied to the Court to revoke and rescind the decree of divorce. The application contained simply a denial of the allegations of the libel, and averred that the libellant had previously been guilty of adultery. A notice of the application to vacate the decree, was served at the reputed — 314 — residence of the libellant. But the fact that she was at the time absent from the state, was communicated to the Court on the 7th of March, 1846, the following decree was entered by the Court: “Ordered, that the proceedings and decree in this case be annulled, on the ground that the same was obtained by fraud and imposition on the Court. There was nothing on the record showing that any proof was taken preparatory to this order, or that the libellant appeared. The verdict further found that the libellant had no issue by her husband, Bleelcer, but that by her second husband, Wheatley, she has issue—a child born November 4, 1846. Whether the plaintiff could recover on the note, was the question submitted. The Court gave judgment for the plaintiff. Jan. 8, 1850, Gibson, C. J.—The case which most distinctly recognizes the power of a spiritual Court to vacate its sentence, when obtained by imposition, is Prudham v. Phillips, stated in Meadows v. The Dutchess of Kingston, Amb. 763, and rather more fully in Harg. Tracts, 456, note. It was tried before Chief Justice Willes, in 1737; and, though a Nisi Prius decision, it was quoted with approbation by Lord Apsley. To show, by analogy, that the sentence in a suit of jactitation of marriage is conclusive in a common-law action, the chief justice took a distinction founded on the common-law prin" ciple, that a party to a fraudulent judgment can reverse it only directly, but that a stranger may reverse it collaterally, by pleading and evidence. “Who ever knew,” he said, “a defendant plead that a judgment against him was fraudulent? He must apply to the Court; and if both parties colluded, it was never knows that either of them coiild vacate the judgment. Here the defendant was a party to the sentence, and whether she was imposed upon, or whether she joined in deceiving the Court, this is not the time and place for her to redress herself. She may, if she has occasion, appeal, or apply to the proper judges.” So was it with the legitimate husband in the case under consideration. The time for appeal had gone by, and he applied to the only tribunal that was open to him. Chief Justice Willes does not intimate how it ought to proceed on the application; but it must necessarily be by summary examination and order. In Bacon’s Abr. Error, 1, 6, the remedy for a surreptitious judgment at common law, is said to be a writ of error coram nobis; but Ronney v. Robinson, 2 Roll. Abr. 724, which is cited for it, leans the other -way. If a clerk of the King’s Bench, it was there said, enter judgment against an order by a judge of the Court, it may be vacated at a subsequent term.- If by a writ of error, it would have been unnecessary to say anything about the time; and the meaning undoubtedly is, that such judgment may be vacated after the term, just as if the records were still in the breast of the Court. That case shows that the principle of Prudham v. Phillips, is a general one, and applicable alike to ecclesiastical sentences and common-law judgments. It has no relation to the doctrine of amendments, which make the records speak a language it did not speak before; the vacation is a new and independent judgment, of which the recorded entry is its appropriate evidence. If it can be entered only on a writ of error, what is to be done with a surreptitious sentence of an ecclesiastical Court, to which no such writ lies? As imposition on it would else he without means of correction, it must necessarily have a power of summary revision. Eacts put in issue, as they may he, by pleading in error, are triable by jury; but as there is no jury in such a Court, there is the less objection to — 315 — summary proceeding by it. There is certainly more reason for it than there was in Ronney v. Robinson. There a statute has given the Common Pleas jurisdiction in libel for divorce; but it has not made it a Court of record in any other aspect, than the one in which it had before been considered. Its proceedings in divorce are not according to the course of common law—at least where a feigned issue is not directed—and no writ of error lies to remove its sentence, whatever may be its power to remove the record of such an issue. In every other respect, the remedy is by appeal, as it is in the ecclesiastical Courts. It may seem an arbitrary act to expunge a sentence of divorce with a stroke of the pen, bastardize after-begotten children, involve an innocent third person in legal guilt, and destroy rights acquired in reliance on a judicial act, which was operative at the time; and, under the first impression, I would have decided as did the judge at Nisi Prius. But the legitimate husband also has rights, and if any one must suffer from the invalid marriage, it is he who procured it. By the terms of the contract, he took the lady for better for worse, and having assumed at least her moral responsibilities, he stands, as to hardships, in her place. He, therefore, has no right to complain. The children, who are the fruit of the connection, are the only persons who have it, if indeed to have been brought into the world in any circumstances, can give such a right; but their condition is not worse than that of the dishonored husband. There is no injustice, therefore, in the proper exercise of the power assumed in this instance; and the apparent danger of excess in the use of it, vanishes when it is viewed in connection with a principle which requires the record to exhibit the ground of every judgment. Possibly there may have been no sufficient ground exhibited in this case; but even if there were not, the order to vacate would be only erroneous, and unimpeachable after the expiration of the period for reversing it by appeal. In stating, however, the charge of imposition, without the facts and circumstances to sustain it, the Court has perhaps stated enough to justify their action upon it. Confidence must be reposed in the wisdom and justice of the tribunals; and hence the maxim, that all things are presumed to have been rightfully done in Courts of record. The indorser of the note in suit before us, had no property in it, and the plaintiff has no title. Judgment for plaintiff reversed, and judgment rendered for defendant. Note B.—McGiffert v. McGiffert, in the Supreme Court of Nero York, as reported in the Daily Times newspaper. The complaint in this cause is filed by the wife against the defendant, her husband, for a divorce a vinculo matrimonii. The parties being residents of this state, were married here on the 12th of September-, 1850. They lived together but a few weeks, and then separated. In January, 1851, the defendant filed his complaint against the plaintiff, claiming to have the marriage annulled, on the alleged ground of the physical incapacity of the plaintiff to consummate the marriage. This she denied in her answer. On the 28th of April, 1851, an order was made in that cause, requiring the plaintiff therein to pay Court fees and alimony to the defendant in that cause, and the same not having been paid, an order was made in that cause, on the 15th of October, 1851, staying all proceedings on the part of the plaintiff therein, until paid, and the proceedings therein have been stayed and suspended. — 316 — In January, 1852, the defendant went to the state of Indiana, leaving the plaintiff, his wife, in this state, where she has ever since remained. The defendant stated in his answer, that such residence in Indiana commenced on or about the 3d day of January, 1852, and that on the 10th day of January, 1853, being at that time a bonajide resident of that state, and having been for more than one year preceding said date, a resident of said state, he filed his bill against the plaintiff in this suit, for a divorce. On the 24th of May, 1853, the plaintiff in this suit not appearing, a decree of divorce was granted. In October, 1855, the defendant in this case returned to this state, accompanied by a woman to whom he had been married in Indiana, on the divorce granted there, with whom he has cohabited here. Upon these facts the complaint is filed, the plaintiff claiming that such intercourse of the defendant with the woman to whom he claims to be married, is adulterous, and entitles her to a divorce. Davies, J.—I deem it unnecessary to discuss the many questions presented in this case. It appears to me that it must be disposed of on the authority of Vischer v. Vischer, 12 Barb. 643, and the authorities there referred to. The Court in Indiana never had jurisdiction of the plaintiff in this case, and the proceedings there as to her are void. As remarked by Justice Hind, in the case referred to, “It is a sound principle of law, as well as of natural justice, that no person should be bound by a judgment without being heard.” And he cited a large number of cases to sustain this position. In this state, besides the case of Vischer v. Vischer, above cited, the same principle in reference to divorce was applied in the case of Borden v Fitch, 15 Johns. 121. In this case, the husband being in the state of Vermont, applied there, his wife then being in Connecticut, and never having been in Vermont, and having no notice of the proceeding for a divorce, which was granted. He came into this state and married another woman, his first wife being still living, and the case turned upon the effect of the divorce granted in the state of Vermont. Thompson, C. J., in delivering the opinion of the Court, says, that it appeared from the testimony that the former wife never was in the state of Vermont, nor in any manner personally notified or apprised at the time of the proceedings in Vermont to obtain the divorce. She did not, in any manner, by her agent or attorney, appear or make any defense against such proceedings. A precisely similar state of facts is presented in the case now under consideration. The Chief Justice says: “The final question is, whether snch proceedings in Vermont were not absolutely void. To sanction and give validity and effect to such a divorce, appears to me to bo contrary to the first principles of justice. To give any binding effect to a judgment, it is essential that the Court should have jurisdiction of the person and of the subject-matter; and the want of jurisdiction is a matter that may always bo set up against a judgment when sought to be enforced, or when any benefit is claimed under it; the want of jurisdiction makes it utterly void and unavailable for any purpose.” These positions are well sustained by authority and sound reasoning, and I have been unable to find any case where the force of this has been questioned. We have already seen that it was recognized as law in the case of Vischer v. Vischer, above referred to; and I feel no hesitation in saying that-I am not at liberty to question the binding force of these authorities. They decide the precise point presented in this case, holding a decree obtained as this was to be utterly void, and unavailing for any purpose whatever. It therefore follows that it affords no legal justification for the defendant in cohabiting with any — 317 — other woman than the plaintiff, his lawful wife; and the facts of such cohabitation, and the other facts necessary to entitle the plaintiff to a divorce a vinculo, being clearly established, I have no choice but to direct a decree for a divorce. A reference may be had to settle the proper alimony to be paid to the plaintiff.