Decamp v. Decamp

The Chancellor. The demurrer to this bill for multifariousness must be sustained- It is a bill seeking, first, a divorce a mensa et thoro, for extreme cruelty ;■ second, a divorce a vinculo matrimonii, for the cause of adultery; third, calling on • the defendant to deliver up to the complainant a certain farm and premises conveyed to her by her fathér, and to account for the rents and profits thereof; and, fourth, for an injunction to restrain the defendant from the commission of waste. All these several matters cannot be blended in one bill. It would tend to utter confusion, and be embarrassing, not only to the defendant in making his defence, but to the court in decreeing the remedy. It is clear, although it has never been decided in this court, that a party cannot in the same bill seek a divorce for extreme cruelty and for adultery. The decree is very different in the two cases. In the one- case, the parties are only separated, and that, perhaps, for a short time; in the other, the marriage relation is dissolved, and the parties are at liberty to marry again. The defendant might be surprized by a bilL framed with these two aspects, and be left in entire uncertainty as to which ground the complainant meant ultimately to rest on. The case cited from Saxton, 474, shows that the chancellor only tolerated a bill thus framed because no exception had been taken to the proceeding, and the reasoning of the case in 6 Johns. Ch. 163, is as applicable under our statute as under the statute of the state of New-York. To blending the remaining parts of this case with the application for a divorce, there is an additional objection. The answer to a bill for a divorce, by our statute, cannot be under oath, while in all other cases it must be. This, upon a bill framed as in the case before the court, would require two answers to one bill — one under oath and the other not under oath. It would be impossible to conform the practice of the court under our statute with uniting these various and independent demands in the same bill, and it would be unwise so to do, if it was practicable. Nothing is so calculated to create embarrassment in ascertaining rights as to throw into one case several unconnected causes of afction. [At a subsequent day in term, the question of costs being agitated, the chancellor, under the peculiar circumstances of the case, modified the opinion and disallowed costs.] The complainant’s counsel has insisted, that all that part of the bill having relation to property, was introduced only to affect the question of alimony. But such is clearly not the object: for the prayer asks independent relief by a divorce — for alimony — for delivering up the farm and premises — for an account, of the rents and profits, and for an injunction. There can be no doubt that in a bill for a divorce a prayer for alimony may be inserted, and any charges made in it respecting property, which might affect that question, would be proper. The demurrer sustained, with costs.