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162 368 f93a 2636
162 368 113a 3243
Pierpont introduced evidence of the attachment proceedings, and the conveyances thereunder by which he derived title. Plaintiffs in error, who failed to establish any title in themselves, are the only ones attacking the decree. The title of record was in said Pierpont, and the decree against plaintiffs in error was right.
The judgment will be affirmed.
ABRAHAM L. GRIFFETH.
Filed at Ottawa March 28, 1896-Rehearing denied October 9, 1896.
1. DIVORCE-when divorce will be granted wife on the ground of impotence. Perversion in mind and body of a husband, existing at the time of his marriage, arising from the long practice of self-abuse, depriving him of the ability to perform the act of coition, is cause for divorce by the wife, where efforts to cure him have failed.
2. SAME meaning of words "naturally impotent," in statute. The words "naturally impotent," as used in the statute relating to divorce, (Rev. Stat. 1874, chap. 40, sec. 1,) mean incurably impotent, and do not refer to congenital incapacity; and those words include impotency resulting from self-abuse.
3. WITNESSES-divorced wife incompetent to prove impotence of former husband. A divorced wife is incompetent, in a suit for divorce by a second wife on the ground of the impotency of the husband due to self-abuse, to testify to acts of self-abuse witnessed by her while his wife, and to his impotency at that time.
4. APPEALS AND ERRORS-when admission of incompetent testimony will not reverse. A decree of divorce will not be reversed because of error in permitting the incompetent deposition of a former wife to be read, where there was sufficient oral evidence to sustain the finding of the chancellor.
Griffith v. Griffith, 55 Ill. App. 474, reversed.
WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. ABNER SMITH, Judge, presiding.
MILCHRIST & SMITH, and M. W. ROBINSON, for plaintiff in error:
Evidence that a cure will require self-control, which the party will not exercise, as abstinence from self-abuse, is held to be proof of incurability. Stewart on Marriage and Divorce, sec. 65, note 10; 3 Swab. & T. 240; 4 id. 86.
THOMAS J. HOLMES, for defendant in error:
The burden of proof in this suit is on the plaintiff to establish both that the impotency existed at the time of marriage and that it is incurable. 1 Bishop on Marriage and Divorce, (5th ed.) sec. 332; Newell v. Newell, 9 Paige, 25; Devenbaugh v. Devenbaugh, 5 id. 554; Welde v. Welde, 2 Lee, (Eng. Ecc.) 580.
It should also be noticed in this case that the bill does not charge that the defendant is naturally impotent, the proofs do not show it, and neither does the decree find that he is naturally impotent, and for these reasons, among others, the original decree was fatally defective. 1 Bishop on Marriage and Divorce, (5th ed.) sec. 337; Stewart on Marriage and Divorce, sec. 64; Newell v. Newell, 9 Paige, 25; Devenbaugh v. Devenbaugh, 5 id. 554; Welde v. Welde, 2 Lee, 578; Lorenz v. Lorenz, 93 Ill. 376.
The proper and only way to proceed is by inspection of the private parts by competent medical witnesses. Stewart on Marriage and Divorce, sec. 66; LeBarron v. Le Barron, 35 Vt. 365; Devenbaugh v. Devenbaugh, 5 Paige, 556; Newell v. Newell, 9 id. 25.
From the testimony of complainant the defendant made a confession of his alleged condition previous to marriage. If this is so, it defeats this action. Stewart on Marriage and Divorce, sec. 65; 33 Md. 401.
The court erred in not compelling an examination, by medical experts, of the person of the complainant. 3 Swab. & T. 240.
The English matrimonial law is binding in marriage and divorce cases in this country. 1 Bishop on Marriage
and Divorce, (5th ed.) sec. 71; Le Barron v. Le Barron, 35 Vt. 365.
The principles and procedure as to the canonical disabilities, one of which is impotency, are the same as those of the ecclesiastical courts. Stewart on Marriage and Divorce, sec. 224; 33 Md. 401.
The former wife of the defendant should not have been permitted to testify in the present case, for the reason the matters and things testified to by her are not the exceptions made by section 5, chapter 51, of the Revised Statutes. Waddams v. Humphrey, 22 111. 661; Keep v. Briggs, 12 Ill. App. 511; Smith v. Long, 106 Ill. 485; Treleaven v. Dixon, 119 id. 549; Way v. Harriman, 126 id. 132; Crose v. Rutledge, 81 id. 266.
Mr. JUSTICE MAGRUDER delivered the opinion of the
This is a bill for divorce, filed by the plaintiff in error against the defendant in error, upon the ground of the impotency of the husband. The.defendant filed an answer denying the material allegations of the bill, and also a cross-bill praying for a divorce from the complainant, charging her with an attempt to poison him, and with extreme and repeated cruelty. The complainant demurred to portions of the cross-bill, and answered the balance. The demurrer was subsequently confessed. The original bill was filed January 5, 1894, and on May 21, 1894, the circuit court, after hearing had, dismissed the cross-bill, and, finding the allegations of the original bill as to impotency to be true, decreed that complainant be divorced from the defendant, and that the latter pay alimony and attorney's fees, etc. Upon appeal to the Appellate Court, that court reversed the decree of divorce entered by the circuit court, and dismissed the bill without remanding the cause. The present writ of error is sued out for the purpose of reviewing the judgment of the Appellate Court.
The parties were married on October 23, 1893, and lived together until December 18, 1893, when the wife left her husband, and commenced this proceeding for divorce. She was twenty-five years old, and he was twenty-nine years old. The bill charges, that, after her marriage, the complainant discovered that the defendant had for years before said marriage been addicted to self-abuse or masturbation, and that the practice of this vice had so injuriously affected his sexual functions as to destroy his capacity and his desire for sexual intercourse. We do not deem it necessary to enter into a discussion of the testimony in this record, the most of which is filthy and revolting in the extreme. It is sufficient to say, that, in our opinion, it was such as to justify the decree of the circuit court, and that the Appellate Court erred in reversing that decree.
Impotence has been defined to be "such an incurable incapacity as admits of neither copulation nor procreation." (1 Bishop on Marriage and Divorce, -5th ed.-sec. 332). Section 1 of the Divorce act of Illinois provides, "that in every case in which a marriage has been, or hereafter may be, contracted and solemnized between any two persons, and it shall be adjudged, in the manner hereinafter provided, that either party, at the time of such marriage, was and continues to be naturally impotent, * * * it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract." (Rev. Stat. chap. 40, sec. 1). To obtain a divorce upon the ground of impotency, it must be shown, as it has been shown in the case at bar, that the defect existed at the time of the marriage and that it is incurable; and the burden of proof is upon the complainant to establish these facts. (1 Bishop on Marriage and Divorce,-5th ed.-sec. 322; Lorenz v. Lorenz, 93 Ill. 376). Where the defect in the husband proceeds from self-abuse, if he will not exercise a moral restraint over himself, and test the curability of his disorder by proper self-control, his wife has a right
of action on the ground of his impotence. (Browne's Commentary on the Law of Divorce and Alimony, p. 184).
"Where the wife is the applicant, and the impotence of the husband proceeds from self-abuse which may be cured by his exercising moral restraint over himself, yet not otherwise, and he will not exercise such restraint, this sort of curability, it would seem, is not deemed to take away her right to the divorce." (1 Bishop on Marriage, Divorce and Sep. sec. 789; 1 Bishop on Marriage and Divorce,-5th ed.-sec. 322). The proof here shows, that efforts were made to cure the husband, and that he would not exercise moral restraint over himself. The evidence "tends strongly to establish the fact," as is well said by the Appellate Court in its opinion, "that through long continued indulgence in self-abuse," the defendant in error “had become so perverted in mind and body as to deprive him of the present desire and ability to perform the act of coition with his wife."
An old rule of the canon law prevailed in the ecclesiastical courts of England, which is known as the rule of triennial cohabitation. By that rule the parties were required to live together for three years, and, if at the end of that time, the marriage remained unconsummated, impotence was to be presumed. But this rule has not been so often applied since the law of evidence has been altered, so as to permit the parties to take the stand as witnesses in their own cause. (2 Bishop on Marriage and Divorce,-5th ed.-secs. 585, 589). The English courts have lately modified the rule of triennial cohabitation, and hold that the rule does not apply when the court is satisfied by other evidence, for example, of the wife herself, of the husband's impotence. (2 Bishop on Marriage and Divorce,-5th ed.-sec. 588a). In F. v. D. 4 Swab. & Tr. 86, the Judge Ordinary said: "There remains the rule as to triennial cohabitation; this rule only applies when the impotence is left to be presumed from continued nonconsummation; for when the impotence is clearly proved