by the affidavits of the defendants, and is not denied by the plaintiffs, that Peters and Sutton took advantage of the injunction of this court unfairly to obtain the signatures of the property-owners, it would be inequitable to allow them to profit by their unfair dealing with the defendant and with the court. He therefore concurs in the conclusion to which we have come.

William Hopple, Jr., Esq., and Hon. F. Carroll Brewster, for plaintiff. David W. Sellers, Esq., contra.

[Leg. Int., Vol. 31, p. 124.]

THOMPSON VS. THOMPSON.

It is only after a sentence nullifying or dissolving a marriage, or a conviction of bigamy, that the parties are at liberty to marry again as if they had never been married: Harrison vs. Harrison, 1 Phila. 389, and Howard vs. Lewis, 6 Id. 55, cited and followed.

In divorce. Opinion delivered April 11, 1874, by

ALLISON, P. J.-The preamble to the first section of the act of March 13, 1815, recites, that it is proper to grant relief to an innocent and injured party, who has entered into the marriage state, where one of the parties is under a natural or legal incapacity of faithfully discharging the matrimonial vow, or is guilty of acts inconsistent with the sacred

contract.

The first section of the act makes the following causes sufficient grounds for a divorce; where one of the parties is impotent; a former and still subsisting marriage; adultery; wilful and malicious desertion; cruel and barbarous treatment of the wife by the husband. "In every such case, it shall and may be lawful for the innocent and injured person to obtain a divorce from the bond of matrimony."

From this two things are clear, that to the innocent and injured party alone can relief be granted, and that a subsisting marriage at the time. the second marriage was entered into, is a distinct ground for a divorce from the bond of matrimony. Not, as often contended, that as between the contracting parties, it may be treated as absolutely null and void, but that inter parties, it is a cause for which the Courts of Common Pleas may decree a divorce.

This interpretation of the law is strengthened by that which follows in the second section of the act, which declares that all marriages within the degree of consanguinity or affinity are void to all intents and purposes. But it does not provide that the parties to such a contract, though it is declared to be void, may treat it as of no effect as to themselves, but on the contrary, it gives the courts authority, in such cases, to grant divorces from the bonds of matrimony. It even places a restriction upon the exercise of this power by requiring that if such a marriage is not dissolved during the lifetime of the parties it shall not be inquired into after the death of either of them. From this it will be seen, that though a marriage within the forbidden degrees of relationship is declared to be void, yet the parties to it are to seek emancipation from the bonds of matrimony through a decree of divorce, or a sentence of nullity of marriage, or a conviction for bigamy: Harrison vs. Harrison, 1 Phila. Rep. 389; and this null contract will not be allowed to be im

peached after the death of one or both of the parties to it. Legitimacy of children, the rights of property, and all other incidents of a legal marriage are placed beyond question, after the death of either husband or wife.

By the eighth section of the act of 1815, such a decree may be entered, as to law and justice may appertain; the court may dismiss the petition or libel, decree a divorce, or that the marriage is null and void, but it is a question whether a sentence or decree of nullity of marriage under this act, can be made for other causes than those specified in the second section; this is not, however, material as to the case now under consideration, as the application may be safely rested upon the act of April 14, 1849, P. L. 647, which recites, that where a supposed or an alleged marriage shall have been contracted, which is absolutely void, by reason of one of the parties thereto having a husband or wife living at the time, the Courts of Common Pleas shall have power to decree the said supposed or alleged marriage to be null and void, upon the application of an innocent or injured party. This act speaks of the marriage in no doubtful terms; it is declared to be void, and is called an alleged or supposed marriage, because of the want of ability in one of the parties to make a valid matrimonial contract. The act, notwithstanding all this, requires a judicial investigation of the alleged incapacity, and a judicial decree of nullity, if the averments of the libel are established by proof. It is doubtless upon this act of 1849 that the application of the petitioner is founded.

The material allegations of the libel are, that libellant was joined in marriage with the respondent July 10, 1868; that said marriage was and is absolutely void by reason of respondent having then a husband living. It is further charged that she was, on the 10th of May, 1866, lawfully joined in marriage with William Ryan, who is still the lawful husband of respondent. That at the date of his, petitioner's marriage, he was innocent and ignorant of said marriage of respondent with Ryan. The petitioner further averring, in the language of the act, that he was, at the time of his marriage with respondent, an innocent and injured party, he prays the court to decree his said marriage to be absolutely null and void.

This application for relief must be distinguished from that which is authorized by the act of March 13, 1815, which gives to the courts power to grant a divorce to an innocent and injured party, from the bonds of matrimony, where one "hath knowingly entered into a second marriage in violation of the previous vow he or she made to a former wife or husband, whose marriage is still subsisting."

The effect of a decree in favor of a petitioner on the ground of a preexisting marriage granting a sentence of nullity of contract, is substantially the same as a decree of divorce, though the form of it may be somewhat different; we say may be different, because, by the 8th section of the act of 1815, a decree of separation from the nuptial ties is authorized for certain causes, or that the marriage is null and void, the latter decree being precisely the same as that set forth in the act of 1849.

The necessity for the latter act is not apparent, unless the decree of nullity of marriage is restricted under the act of 1815, to cases within

the degrees of prohibition. The act of 1849 holds the petitioner to a compliance with the forms prescribed by law, for cases of divorce from the bonds of matrimony. There is therefore no economy of time or saving of money; it is not a short cut out of the tangle, and it seems to give no more than an election, as to which mode of procedure a petitioner will adopt.

In the United States' we have no ecclesiastical courts; therefore, before jurisdiction can be exercised in matters relating to marriage and divorce, courts must have power conferred on them by statute. In several of the States of the Union, it has been held, that in cases of void marriages, where fraud is alleged, equity will collaterally take jurisdiction of the question, but in Pennsylvania no such claim has ever been set up, nor indeed was it possible that it could have been, statutory authority having been conferred on the Courts of Common Pleas to grant divorces long before equity jurisdiction was given to them. We therefore are to look to our statute law, as the only source of our power; that which is there given us to do we may perform, and no more; the results which follow a proper exercise of authority are those only which the law declares, and the manner even in which the power may be carried into effect is prescribed.

In Harrison vs. Harrison, 1 Phila. Rep. 389, we held, looking to our statute law alone as our guide, that it was only after a sentence nullifying or dissolving a marriage, or a conviction of bigamy, that the parties were "at liberty to marry again in like manner as if they had never been married." Griffith vs. Smith, 2 Penna. Law Journal 151, was cited to the same effect, and Howard vs. Lewis, 6 Phila. Rep. 55, is in maintenance of the same principle. We have referred to this view of the law and the cases in which it has been supported, because the argument for the respondent rested upon the contrary doctrine, which we have seen no reason to adopt. Not denying that certain marriage agreements are invalid-absolutely void, but holding, that under our law the parties to such a contract, though it turns out to be but a contract in form, must establish the nullity of the marriage before they can marry again.

This brings us back to the questions of fact upon which this case turns, and requires us to ascertain from the testimony, whether the libellant is entitled to the decree in his favor, of the nullity of the marriage, which was celebrated between himself and the respondent, ratified as it was by subsequent cohabitation.

The courts of this Commonwealth do not permit every party to a void marriage to maintain a suit for nullity of marriage; he must show prima facie at least, that he is an innocent and injured party. In England, either party to a void marriage may ask for a decree of the nullity of the marriage, even though he or she entered into the contract with a knowledge of an existing disability, and it is only where such marriage has been induced by positive fraud, that the party practising it will be denied relief.

The libellant confesses the necessity of establishing that he is an innocent and injured party to entitle him to the decree of nullity of marriage. Do the facts as they appear by the proofs show that he has established this element of his case?

The libellant confesses in his testimony, that he knew, before and at

the time of his marriage with respondent, that she had been_twice married, first to one John Donohue, and afterwards to William Ryan. He says respondent informed him, that she was engaged in obtaining a divorce from Donohue, and that she was prosecuting her suit while libellant and respondent were living together, before their marriage. He knows a divorce was obtained, but whether it was in 1868, or before or after his marriage with her, he cannot say.

Libellant testifies, "she told me she was married to a man in Baltimore by the name of William Ryan; this was before my marriage." The testimony discloses the fullest knowledge on the part of the libellant, of both the prior marriages, and that when he married the respondent, he did not even know, nor does he seem to have cared to inform himself, that she had been divorced from Donohue. The testimony shows that such a divorce had been obtained on the 18th of January, 1868, but this was some nineteen months after she had been joined in marriage to Ryan, and that when she married him she was and had been for a number of years the wife of Donohue.

The libellant attempts to excuse his marriage with the respondent, by alleging that he was under the effects of liquor at the time; that he had no intelligent knowledge of what was going on, and that he was in somewhat of a stupor; but this statement is in direct conflict with that of the clergyman who performed the ceremony. He says, that when he entered the room, in which libellant was, he was introduced to him; that he apologized for not rising, owing to a sprained foot, took hold of the prayer book, which was held by both the libellant and respondent, and that he read the responses therefrom; the ceremony being according to the rites of the Episcopal church.

The fact further appears by the testimony of this witness, that a short time thereafter, in company with respondent, libellant called on the clergyman at his residence for a certificate of the marriage; he adds, the libellant's manner was calm and gentlemanly at the time I performed the marriage ceremony, and was so when he called upon me with his wife, for the certificate. His manner was kind and affectionate to the respondent. Nor is it to be forgotten, that libellant continued to live with respondent for some time after the marriage, and after he had obtained from the clergyman the evidence of it. He assigns as his only reason for separating from respondent, that he could no longer live with her, because of her habits of intoxication, violent temper, and general bad conduct.

The testimony does not sustain the allegations of the libel, that petitioner was innocent and ignorant of the marriage of respondent with Ryan, and that he is an innocent and injured party.

But the testimony fails in another essential point. It is not shown that William Ryan, who in 1865 was in prison during all of that year in Philadelphia, is the person who by that name, in 1866, was married to the respondent. That which he stated to the officers of the prison in the absence of the respondent, cannot be allowed to prejudice her rights.

The witnesses examined in Baltimore to prove respondent's marriage with William Ryan, do not pretend to identify even the photograph of Ryan, so as to connect it with the man, who by that name was shown: to have been living in Philadelphia in 1868.

There is, therefore, no proof that William Ryan, to whom respondent was married in 1866, was living at the time of her marriage with libellant.

For these reasons the rule to show cause why a decree establishing the nullity of the marriage of libellant with the respondent is discharged. Decree refused.

There is also a pending rule taken by the respondent, asking that libellant be ordered to pay additional counsel fees.

A rule for alimony and counsel fees was heard more than a year ago. It was resisted upon the ground that respondent was living with a man other than her husband. That they kept house together, and that she thus had means of support, which rendered an order such as she prayed the court to make unnecessary. The depositions taken in resistance of the application, established the allegations of the libellant, and the order was refused. There has been nothing shown since that hearing, to change the case as it then stood before the court. The defence of the respondent rests upon technical grounds alone. Her standing before the court is wholly void of merit, and her conduct in every respect, is such as to take from her all claim to a favorable consideration.

We are not prepared to make the order prayed for, and therefore discharge the rule.

Daniel Dougherty and E. H. Hanson, Esqs., for libellant.

R. E. Brown and G. L. Crawford, Esqs., for respondent.

[Leg. Int., Vol. 31, p. 140.]

HURLBURT vs. FIRTH.

1. Easements or servitudes which are apparent and continuous, and which are technically extinguished or put to sleep by unity of title, and are allowed to remain undisturbed, revive upon severance.

2. The act of May 20, 1857, applies to a division wall, as well as to a PARTY WALL.

In equity. Exceptions to master's report. Opinion delivered April 25, 1874, by

ALLISON, P. J.-Charles C. West was the owner of two adjoining properties, situate on the north side of Arch street, in the city of Philadelphia, Nos. 135 and 137.

On the 16th of June, 1830, he conveyed No. 137, the westernmost lot, with a three-story brick house thereon erected, to Thomas Dugdale, Jr., from whom the title has passed to the plaintiff.

On the 11th of January, 1831, West conveyed No. 135, being the easternmost of the two properties, to Dugdale, and from him title is deduced to the defendant, John Firth.

The equity of complainant as set forth in his bill, consists in alleged violations of covenants which run with the land of plaintiff, and which are contained in the deed of property No. 137 from West to Dugdale, the deed of June 16, 1830, by which West charged his lot adjoining on the east for the benefit of lot No. 137, with the use and privilege of a two feet wide alley along the west side of No. 135, for a passage-way and water-course, extending thirty-eight feet north from Mulberry street, and thence by a northwestwardly line commencing at that distance on the east