Зображення сторінки
PDF
ePub

V.

[ocr errors]
[ocr errors]

that the defendant had another wife living at the time of the marriage annulled by the decree, it is competent, under the provisions of our statute, for the court in such proceeding to also decree reasonable alimony to the petitioner,"

In Bardin v. Bardin (1893) 4 S. D. 305, 46 Am. St. Rep. 791, 56 N. W. 1069, a wife brought an action for divorce, and defendant appealed from an order granting alimony pendente lite. The defendant admitted a ceremonial marriage with the plaintiff, but asserted that at that time the plaintiff had a husband living, to which the plaintiff rejoins under oath, admitting the former marriage, but averring that at the time of her marriage to the defendant her former husband had been absent for a space of more than ten years, and that she believed him dead. These allegations were uncontroverted by the defendant. The court held that although the allowance of alimony pendente lite and counsel fee was dependent on the marital relation, that relation need not be shown conclusively or beyond a doubt before the allowance may be granted; but that “the plaintiff must make out a reasonably plain case of the existence of the marital relation,” that such matters should be shown by such legitimate proofs as may “make out, in the judgment of the court, a fair presumption of the fact of marriage."

In Walker v. Walker (1885) 10 Ont. Pr. Rep. 633, a wife claimed alimony on the ground of desertion; she asserted under oath the fact of her marriage with the defendant, giving particulars as to the ceremony.

The husband denied the marriage and produced some confirmatory evidence. There were, however, many undeniable facts of conduct and reputation from which a marriage de facto might be inferred, and thereon the court allowed alimony pendente lite.

In Brown v. Brown (1907) 13 B. C. 73, a wife was granted permanent alimony in an action for divorce brought by her on the ground of the impotency of the husband.

(b) Marriage obviously invalid. If, in an action by a wife for divorce, the existence of the marriage is neither admitted by the husband nor tentatively shown by the wife, no allowance for her support or assistance will, in the absence of statute, be granted.

California.--Hite Hite (1899) 124 Cal. 389, 45 L.R.A. 793, 71 Am. St. Rep. 82, 57 Pac. 227 (action for divorce).

Florida.-Banks V. Banks (1900) 42 Fla. 362, 29 So. 318 (action for maintenance).

Georgia.-Roseberry v. Roseberry (1855) 17 Ga. 139 (action for divorce).

Kansas.--Wilhite v. Wilhite (1889) 41 Kan. 154, 21 Pac. 173 (action for maintenance); Werner Werner (1898) 59 Kan. 399, 68 Am. St. Rep. 372, 53 Pac. 127 (action for divorce).

Michigan.--Lapp v. Lapp (1880) 43 Mich. 287, 5 N. W. 317 (action for divorce).

Mississippi.-Aldridge v. Aldridge (1918) 116 Miss. 385, 77 So. 150 (action for divorce).

New Jersey.-Vreeland v. Vreeland (1866) 18 N. J. Eq. 43 (action for maintenance); Cray v. Cray (1880) 32 N. J. Eq. 25 (action for divorce); Robinson v. Robinson (1913) 82 N. J. Eq. 466, 88 Atl. 951 (action for divorce).

England. Smyth v. Smyth (1824) 2 Addams, Eccl. Rep. 254 (action for maintenance).

In Hite v. Hite (Cal.) supra, a wife brought an action for divorce, alleging a marriage with the defendant, who denied that the marital relation ever existed. It was held that a prima facie showing of the marriage was not sufficient to warrant an allowance of alimony, where the marital relation was denied.

When, in a suit brought by a wife, the allegations of marriage are not supported by any proof except an unsworn bill of complaint, and there is a denial of the marriage by the husband under oath, there is no foundation for the granting of alimony pendente lite, suit money, or counsel fees. Banks v. Banks (Fla.) supra.

In Roseberry v. Roseberry (Ga.)

[ocr errors][ocr errors][merged small][ocr errors]

an

supra, a wife brought an action for marriage had ever existed, alimony divorce, to which the husband an- and counsel fees pendente lite could swered, alleging the marriage to be not be allowed. void on the ground that the wife had a In Cray v. Cray (1880) 32 N. J. Eq. husband living at the time of the mar- 25, a wife brought suit for divorce a riage. It was held that, the marriage mensa et thoro, and for separate having been denied, alimony would maintenance. The defendant not be granted.

swered that the plaintiff had a husWhere a woman who sues for ali- band living at the time of the marmony has married within three months riage, and stated also that the sepaafter having been divorced by a form- ration was with her consent, and at er husband, and a statute of the state her express wish. Since the allegain which she is married provides that tions were completely met by the andivorced persons may not marry with- swer and affidavits, no alimony was alin six months of the date of the di- lowed. vorce, such marriage contract is void, In Robinson v. Robinson (1913) 82 and no basis exists for the allowance N. J. Eq. 466, 88 Atl. 951, a wife of alimony. Wilhite v. Wilhite (Kan.) brought an action for a divorce, and supra.

the husband, denying the validity In Werner y. Werner (1898) 59 Kan. of the marriage, asserted that she 399, 68 Am. St. Rep. 372, 53 Pac. 127, had a husband living at the time. a wife brought suit for divorce, and The wife admitted that at the time was met with the answer that she had of the marriage a divorce suit was a husband living at the time of the pending between herself, as petitioner, marriage. The marriage was held to and her former husband, in which be void from the beginning, and hence a decree of divorce was entered in it was held that no alimony could be her favor twenty-three days after allowed.

the present marriage had taken place; Where a wife brought an action for but asserted that at that time she was divorce on the ground of cruelty, and under the belief that the divorce had it appeared that she knew that, at the already been granted. The defendtime of her marriage with the defend- ant denied this, and asserted that his ant he had a wife living apart from wife knew at the time that she was him, under articles of separation, it not divorced, although it was unknown was held that the marriage was void to him. The court said that if the in fact, and the plaintiff was not en- plaintiff did indeed believe that she titled to temporary alimony. Lapp v. was divorced, and she and the defendLapp (Mich.) supra.

ant lived together as man and wife, In Aldridge v. Aldridge (Miss.) believing their marriage lawful, then, supra, a wife brought a bill for a di- the decree of divorce having been vorce and alimony on the ground of made, their continuous cohabitation cruel and inhuman treatment by the

and repute would, by inference, supply husband. It was shown by the hus- the consent essential to create the band's answer that at the time of the marital relation. Their conduct would marriage now sought to be dissolved be accepted as meritorious from its husband and wife had each a living

inception. If, however, the plaintiff and undivorced spouse. It was held

knew of the obstacle to her marriage that, the marriage having been void with the defendant, and it had been ab initio, no alimony could be allowed. known to him only after the separation In Vreeland v. Vreeland (N. J.)

of himself and wife, there would need supra, a wife brought an action for to be further evidence of mutual conalimony, and the marriage was denied sent to marriage by the parties after by the defendant, who charged that the entry of the decree of divorce. the plaintiff had someone impersonate Matrimonial habit and repute are of him at a pretended ceremony. There importance only where the good faith was no proof of cohabitation or repute of the petitioner is established. It was thereof. It was held that, since no held that, since the plaintiff had not

a

[ocr errors][ocr errors]

produced the evidence sufficient to es In Daniels v. Morris (1880) 54 Iowa, tablish her case, alimony pendente 369, 6 N. W. 532, wherein a wife lite, the basis of which is an existing brought suit for the annulment of her marriage, could not be allowed.

marriage, on the ground that the husIn Smyth v. Smyth (1824) 2 Addams, band had a wife living at the time of Eccl. Rep. (Eng.) 254, the court, on the the marriage, she was allowed comwife's petition for formal allotment pensation under statute which of a sum in the nature of alimony, said provided that where, in such cases, inthat this was impossible, because not nocence and good faith were shown, even a marriage de facto had been es

compensation might be granted as in tablished by proof or confession, but cases for divorce, So, in Barber v, Barrecommended nevertheless that the ber (1887) 74 Iowa, 301, 37 N. W. 381, wife should be alimented during the a wife brought an action to determine long vacation.

the validity of her marriage, requestIn Strode v. Strode (1867) 3 Bush ing separate maintenance and perma(Ky.) 227, 96 Am. Dec. 211, it was nent alimony if it were found valid, held, contrary to the general rule and and compensation in case of its invawithout statutory provision, that a lidity. It was found that the husband woman without fault and of good char

was of unsound mind at the time of acter was entitled to alimony in a suit the marriage, but that the wife was by her for divorce, even though the in complete ignorance thereof, and existence of the marital relation was hence was entitled to compensation by not established.

virtue of a section of the Code which b. Under statute.

so provides for innocent parties en

tering into contracts of marriage in In a number of jurisdictions, provi

good faith, where the marriage is desion is made by statute for the grant

clared a nullity. However, in York v. of alimony or other financial assistance to a woman who seeks the dis

York (Iowa) supra, it was held that solution of an invalid marriage. See

where, in a wife's action for divorce, the following cases:

the marriage is absolutely denied, and Connecticut.-Stapleberg v. Staple

not even established prima facie, temberg (1904) 77 Conn. 31, 58 Atl. 233. porary alimony cannot be allowed. In lowa.--York v. York (1872) 34 Iowa,

McFarland v. McFarland (1879) 51 530; McFarland v. McFarland (1879)

Iowa, 565, 2 N. W. 269, a divorce was 51 Iowa, 565, 2 N. W. 269; Daniels v. obtained by a husband, who shortly Morris (1880) 54 Iowa, 369, 6 N. W. thereafter persuaded his former wife 532; Barber v. Barber (1887) 74 Iowa, to return to him, stating that the di301, 37 N. W. 381.

vorce was of no effect, and conveying New Hampshire.—Bickford v. Bick to her the belief that he intended presford (1908) 74 N. H. 448, 69 Atl. 579. ent marriage: this was followed by a

North Carolina.-Lea v. Lea (1889) cohabitation of six years; and it was 104 N. C. 603, 10 S. E. 488.

considered that this cohabitation, toRhode Island.---Leckney v. Leckney gether with the intention of present (1904) 26 R. I. 441, 59 Atl. 311.

marriage, established anew the marWashington.—Arey v. Arey (1900) riage relation dissolved by the divorce, 22 Wash. 261, 60 Pac. 724.

and constituted thereby a basis for Under a

statute providing that the allowance of temporary alimony "whenever from any cause any mar

and counsel fees. riage is void the superior court

In Bickford v. Bickford (N. H.) sumay thereupon make such order. pra, a wife brought an action to annul concerning alimony as it might make her marriage on the ground that she in a proceeding for a divorce between had a husband living at the time of her such parties if married,” it has been marriage, although at that time she held that the statute applied to mar had been informed and then believed riages void ab initio, such as the mar that he had obtained a divorce from riage of an uncle and his niece. Sta her. The marriage was annulled, and pleberg v. Stapleberg (Conn.) supra. an order allowing a monthly sum for

[ocr errors][merged small]
[ocr errors]
[merged small][ocr errors][ocr errors][merged small]

support upheld, by virtue of a statute tion for divorce, in case she has no providing that, on a decree of nullity, property of her own available for the court may order a husband to pay such purpose, as it may think reasonsuch sum of money as may be deemed able and proper." The court held that just.

the statutes cited, providing as they In Lea v. Lea (1889) 104 N. C. 603, did for a divorce in case of any mar10 S. E. 488, wife brought an action riage void or voidable by law, applied to annul her marriage with the defend- directly to the case in question, and ant, on the ground that he had a wife must be interpreted as including and living at the time of the ceremony. considering actions brought for the The court, in holding that the wife was annulment of marriages de facto, and entitled to alimony, pointed out that that temporary alimony and counsel the provision of the Code, specifying fees would be allowed. that "alimony may be given where any In Arey V. Arey (1900) 22 Wash. married woman shall apply to a court 261, 60 Pac. 724, a wife brought an acfor a divorce from the bonds of mat- tion for the annulment of her marrimony or from bed and board,” was riage, for the reason that she was unto be interpreted with its common-law der the legal age of consent at the significance, and at common law a time of the ceremony. The court held divorce a vinculo could be granted that there was a marriage de facto, only for a cause existing prior to the and that the provisions of the Divorce marriage,—for something "rendering Act for suit money and liability were the marriage unlawful ab initio.” The

applicable to the case; that the marstatute is to be considered as embrac

riage was voidable only at the suit of ing "all cases where there has been

the wife; and that she was entitled to a de facto marriage."

suit money and counsel fee. In Leckney V. Leckney (1904) 26 R. I. 441, 59 Atl. 311, a wife brought an

In Chase v. Chase (1866) 55 Me. 21, action for the annulment of her mar

a wife brought an action for divorce riage to the defendant, on the ground

on the ground of impotence of the husthat he had a wife living at the time

band. A statute provided for divorce of the marriage. A statute provided

and the restoration of the property of for "divorce in case of any marriage

the wife in such a case, and in the originally void or voidable by law." same section declared that alimony Another statute granted a court power might be allowed in divorces granted to "make such allowance to the wife for any other cause. It was held that out of the estate of her husband, for alimony was directly excepted in suits the purpose of enabling her to pros- for divorce on the ground of impoecute or defend against any such peti- tence.

R. S.

N. R. McFALL et al., Appts.,

V.
FIRST NATIONAL BANK OF FORREST CITY.

[blocks in formation]

Bank liability for dishonoring check.

1. Proof of actual damages is not necessary to enable a merchant or trader to recover substantial damages from a banker who dishonors his checks when he has funds on deposit.

[See note on this question beginning on page 947.)

(-- Ark. 211 s. W. 919.) Evidence presumption of damages awarded a merchant for wrongful dis- dishonor of checks. 2. Substantial damages

honor of his checks, the jury may con

are presumed in case a bank wrongfully dis sider the importance of the checks to honors the checks of a merchant. the business, the size of the account, [See 5 R. C. L. 548.]

and the drawer's standing a business Damages dishonor of checks

man in the community.
elements.
3. In determining the damages to be [See 5 R. C. L. 550, 551.]

(McCulloch, Ch. J., and Smith, J., dissent.)

[ocr errors][ocr errors][ocr errors]

APPEAL by plaintiffs from a judgment of the Circuit Court for St. Francis County (Jackson, J.) in their favor, for less than the amount asked for, in an action brought to recover damages for alleged wrongful dishonoring of plaintiffs' checks. Reversed.

The facts are stated in the opinion of the court. Mr. C. W. Norton, for appellants: court to recover damages for wrongPlaintiffs were entitled to recover fully and wilfully dishonoring or resubstantial damages. 5 Cyc. 535; Commercial Nat. Bank by them upon appellee in favor

fusing to pay certain checks drawn v. Latham, 29 Okla. 88, 116 Pac. 197,

of the Southwestern Telephone & Ann. Cas. 1913A, 999; Lorick v. Palmetto Bank & T. Co. 74 S. C. 185, 54

Telegraph Company engaged in S. E. 206, 7 Ann. Cas. 818; Columbia

business in Forrest City, Arkansas, Nat. Bank v. MacKnight, 29 App. D.

and various wholesale merchants C. 580, 10 Ann. Cas. 897; Siminoff v. engaged in business in Memphis, Jas. H. Goodman & Co. Bank, 18 Cal. Tennessee. In substance, the comApp, 5, 121 Pac. 939; Wiley v. Bunker plaint alleged that appellants were Hill Nat. Bank, 183 Mass. 495, 67 N.

for Prot

partners engaged in a general groE. 655; Third Nat. Bank v. Ober, 102

cery and butcher business in MadiC. C. A. 178, 178 Fed. 678; Spearing

son, Arkansas; that appellee was a v. Whitney Cent. Nat. Bank, 129 La. 607, 56 So. 548; Western Nat. Bank v.

national bank engaged in the bankWhite, 62 Tex. Civ. App. 374, 131 S.

ing business at Forrest City, ArkanW. 828.

sas; that in May, 1917, appellants The bank could not defend on the were depositors in appellee's bank strength of its own error; mistake or and issued checks on their deposit, error is no excuse.

payable to the Southwestern Tele5 R. C. L. 546; Atlanta Nat. Bank v. phone & Telegraph Company and Davis, 96 Ga. 334, 51 Am. St. Rep. 139, certain wholesale merchants in 23 S. E. 190; Lorick v. Palmetto Bank Memphis, Tennessee, which checks, & T. Co. 74 S. C. 185, 54 S. E. 206, 7

in the course of negotiation, were Ann. Cas. 818. Messrs. Mann, Bussey, & Mann, and

passed through banks in Memphis, R. J. Williams, for appellee:

St. Louis, and Forrest City; that, in It is not necessary that the instruc

due course of business, said checks tions use the word “substantial," but were presented to appellee for payit is only necessary that the jury be ment, and wrongfully and wilfully told that the plaintiffs were entitled

refused or "turned down" by it on to recover such sum as would be a fair the 18th, 19th, and subsequent dates and just compensation for injury sus in May, 1917, to the damage of aptained.

pellants in the sum of $6,000.
Schaffner v. Ehrman, 139 Ill. 109, 15
L.R.A. 134, 32 Am. St. Rep. 192, 28

Appellee filed answer, denying
N. E. 917.

that it wilfully or wrongfully re

fused to pay or "turned down" Humphreys, J., delivered the

checks of appellants, or that appelopinion of the court:

lants were damaged in any sum by Appellants instituted suit against reason of its refusal to pay the appellee in the St. Francis circuit checks when presented; but admit.

25 be ited

« НазадПродовжити »