Jones v. Jones

The opinion of the Court was drawn up by

Shepley J.

Several objections were taken to the proceedings in this case. The first is, that the parties were not legally married. The act establishing a municipal court in the town of Hallowed, stat. 1835, c. 146, provides, that the Judge shall have exclusive and original jurisdiction within that town over all such matters and things as justices of the peace for that county may by law take cognizance of and exercise jurisdiction over. Mr. Gilman, who married these parties, held that office, and also that of justice of the peace for the county, and was duly qualified. He might lawfully marry them as a justice of the peace, unless ho was deprived of that power in consequence of his exclusive jurisdiction as a a judge.. He does not state in what capacity he acted in performing the service, but the law will regard him as acting in the-capacity in which he lawfully might perform the duty. It may well be doubted, whether the terms cognizance and jurisdiction do not refer to such matters only as are of a judicial character, leaving other duties to be performed by justices of the peace. But whatever construction the act may receive the marriage will be legal.

Another objection is that one judge has not jurisdiction to decide upon a question of alimony. The act regulating divorces, st. 1821, c. 71, speaks of questions of divorce and alimony, while that giving the jurisdiction to one judge, si. 1838, c. 310, speaks only of questions of divorce. That alimony in our law is regarded as an incident to divorce is apparent from the provision of the st. c. 71, § 5, which creates a lien on the estate of the husband for the performance of any order, which the court may make in a suit for divorce. A division of the jurisdiction would be a virtual repeal of that provision. The legislature could not have intended to give jurisdiction over the principal question to one judge, and require the cooperation of a majority in the minor one of alimony, at the same time depriving the party of the intended security to enforce a decree in his favor.

The act giving this jurisdiction provides, that any person aggrieved at the opinion of said justice upon a question of law may file his exceptions to the same. The language of the act and the design of the legislature in passing it clearly indicate the intention, that there should be no appeal from a decision of the Judge upon a question of fact. His decision is as conclusive as the finding of a jury, and is no more open for revision by the court of law.

Another objection has reference to the capacity of the infant wife to maintain this process. Before the stat. 21 Jac. 1, c. 13, if an infant plaintiff or defendant appeared by attorney and not by guardian or next friend, it was error. That statute cured the defect on the part of the plaintiff after verdict; and it became necessary to plead infancy in abatement. 2 Saund. 212, and notes; Schermerhorn v. Jenkins, 7 Johns. R. 373; Dewey, Pet. 11 Pick. 268.

In this case the counsel for the libellee submitted a written motion-that the libel should be quashed or dismissed because it was not prosecuted by guardian or next friend. Considering the nature of the process this may be regarded as equivalent to a plea in abatement. And in the case of Wood v. Wood, 2 Paige, 108, it was decided, that an infant should so prosecute or defend in a suit for divorce. That decision however appears to have been founded upon the provisions of the statute and upon the rules of practice established there. Wood v. Wood, idem 454. An infant may at common law bind himself and others in many cases. He has ability and may lawfully bind himself by an act for his own benefit. Gouch v. Parsons, 3 Burr. 1801. And of this description the law regards the marriage contract. Before the statute of 38, Geo. 3, c. 87, an infant at the age of seventeen might be an executor and receive moneys and give acquittances. A female infant can lawfully contract marriage, and in doing it can bar herself of dower, and dispose of her personal estate. Earl of Buckinghamshire v. Drury, 3 Bro. P. C. 570; Harvey v. Ashley, 3 Atk. 613. So she may maintain a suit on a promise of marriage. Holt. v. Ward, Fitzgibbon, 175; idem, 275; Holt v. Ward, Stra. 937. Whether an infant executor could sue without a guardian or next-friend occasioned a difference of opinion. The right to do so was admitted in Rutland v. Rutland, Cro. Eliz. 378; Bade v. Starkey, id. 541; Coan v. Bowles, 1 Show. 165; Foxwist v. Tremaine, 2 Saund. 212. And denied in Cotton v. Wescot, Cro. Jac. 441; Keniston v. Friskobaldi, Fitzgibbon, 1. There would seem to be an inconsistency in allowing the acts of an infant executor to be legal, and at the same time subjecting him to the control of a guardian, or next friend while in the act of performance. If the law permits a female infant to enter into the marriage contract, does not the larger include the less power, and enable her to do any act, which may be necessary to its perfection, or may arise incidentally out of it? And is it not upon this principle, that she is allowed to bar herself of dower and dispose of her property by such a contract ? Will the law enable her to assume the duties and acquire the rights of support and protection which that contract gives, and refuse to her the power of enforcing those rights. Is the right to shield herself from the oppressive and cruel acts of the husband less incident to, or connected with the contract, than dower or the disposal of personal effects ? But whatever may bo the conclusion at common law, the language of the statute c. 71, <§> 5, regulating divorces of this description is general, enabling any wife, without exception as to age, to file her libel and obtain relief. And general wmrds in a statute are to receive a general construction, unless there be something in it to restrain them. So inflexible was this rule considered, that the Statute of Wills, 32 Hen. 8, having authorized all and every person or persons to devise their lands, it was feared, that it might enable infants and insane persons to do it; and the statute of 34 Hen. 8, was passed to introduce these exceptions. Beckford v. Wade, 17 Ves. 88. The same principle was recognized in the decision, that the Statute of Fines, 4 Hen. 7, c. 24, bound infants. Stowell v. Lord Zouch, 1 Plow. 369. It is admitted to apply to statutes of limitation. Demarest v. Wynkoop, 3 John. Ch. R. 129. The statute regulating divorces should accordingly receive such construction as would enable any wife without regard to age to institute such a process. And the reasons, which would lead the mind to clothe her with that power by the common law, may justly be brought in aid of such a construction.

Decree confirmed as to divorce, and as to alimony it is reserved for further hearing.