26 ment on demurrer, the plaintiff, it has been held, in proving his damages, must produce the bond, and prove its identity with the bond declared on; but of this fact, slight evidence, it seems, will ordinarily suffice. If the specialty is the foundation of the action, the defendant cannot, ordinarily, deny the liability if he executed it, and the proper plea is usually non est factum. Under this plea the defendant may show either that he never executed it in point of fact, or that it is absolutely void; but not matters that would make it merely voidable, for these, it seems, must be specially pleaded.28 Under such plea, at least when verified, the plaintiff usually has the burden of proving the execution and delivery of the instrument;20 but the production of the instrument is generally sufficient evidence of its delivery, if it is otherwise properly executed by the defendant. In many jurisdictions, the plea of non est factum, to an action of debt on a bond, puts in issue only the execution of the instrument declared on, and in effect admits every other allegation. The defendant, therefore, under this issue, cannot give in evidence, as a defense, anything arising under the condition of the bond ;30 nor can he show that the bond was not taken conformably to the requirements of a statute.31 Nor on the other hand, if the action is against one obligor alone, as jointly and severally bound, can the plaintiff, under this plea, at common law give in evidence a joint bond of the defendant and the other persons mentioned, though it agrees in date and amount with the bond described in the declaration.32 So, if the declaration is against one as principal and the other as surety, and the evidence is a bond given by the two, as sureties only, it is a fatal variance.33 "Shipman Com. L. Pl. (2d ed.), 287; Anthony v. Wilson, 14 Pick. (Mass.) 303; Van Valkenburgh v. Rouk, 12 Johns. (N. Y.) 337; Yates v. Boen, 2 Str. 1104; Pigot's Case, 11 Coke, 26b; Mix v. People, 92 Ill. 549; Stapleton v. Benson, 8 Mo. 13; Newlin v. Beard, 6 W. Va. 110; American &c. Co. v. Burlack, 35 W. Va. 647, 14 S. E. 319; Lambert v. Atkins, 2 Campb. 272. *Collins v. Blantern, 2 Wils. 347; 2 Inst. 482; Stephen Pl. (Andrew's), 280; Bailey v. Cowles, 86 Ill. 333; Stapleton v. Benson, 8 Mo. 13. 20 Smith v. Lozano, 1 Ill. App. 171; Cully v. People, 73 Ill. App. 501; Newlin v. Beard, 6 W. Va. 110; Union Bank v. Ridgeley, 1 Har. & G. (Md.) 324; see also, as to variance in such proof, Phillips v. Singer Mfg. Co., 88 Ill. 305; Ford v. Van Dyke, 33 N. Car. 227. 30 Rice v. Thomson, 2 Bailey (S. Car.) 339; Chambers v. Games, 2 Greene (Iowa) 320. 31 Commissioners v. Hanion, 1 Nott & McC. (S. Car.) 554. 32 Postmaster-General v. Ridgway, Gilpin (U. S.) 135; Phillips v. Singer Mfg. Co., 88 Ill. 305. 33 Bean v. Parker, 17 Mass. 605; 34 § 2027. Debt on judgment.-In debt on a judgment, it has been held that satisfaction of the judgment, in a proper case, may be proved by parol. And if the judgment was against the debtor by his family name only, and in the action of debt upon it he is sued by both his christian name and surname, the plaintiff may prove the identity of the person by parol.35 The proper general issue is nul tiel record, and under this plea, the defendant may show that no such judgment exists, or he may take advantage of a fatal variance in stating it; but matters of release and discharge should be specially pleaded." Under the general issue, the burden is upon the plaintiff to prove the record sued on;38 but under a special plea of payment or the like it has been held that the defendant has the burden of producing evidence to establish it.3 39 Kuykendall v. Ruckman, 2 W. Va. 448; Lancaster v. Inhabitants of 332. 34 Tarver V. Rankin, 3 Kelley (Ga.) 210; Sewall v. Sparrow, 16 Mass. 24. Under a plea of nil debet, to an action upon a judgment recovered in another State, it has been held payment may be proved; and a receipt signed by the plaintiff, acknowledging payment, though it be not under seal, is admissible as prima facie evidence on the judgment of a court of another State; Indianapolis &c. R. Co. v. Risley, 50 Ind. 60; Sammis v. Wightman, 31 Fla. 10, but it is not generally a good plea against a judgment of a court of record; Hall v. Williams, 6 Pick. (Mass.) 232, 17 Am. Dec. 356; Mills v. Duryee, 7 Cranch (U. S.) 481. 35 Root V. Fellowes, 6 Cush. (Mass.) 29; Barry v. Carothers, 6 Rich. (S. Car.) 331; Ducommun v. Hysinger, 14 Ill. 249. 56 Warren v. Flagg, 2 Pick. (Mass.) Richmond, 83 Me. 534, 22 Atl. 393; Bennet v. Morley, 10 Ohio 100; Stevens v. Fisher, 30 Vt. 200, or take advantage of the fact apparent on the record, that the judgment is void; Kimball v. Merrick, 20 Ark. 12; Wood v. Agostines, 72 Vt. 51, 47 Atl. 108; Bruce v. Cloutman, 45 N. H. 37, 84 Am. Dec. 111. 37 Shipman Com. L. Pl. (2d ed.), 288, the plea of nul tiel record generally puts in issue simply the existence of such a record as that declared on. Sammis v. Wightman, 31 Fla. 10. 38 First Nat. Bank v. Hamor, 47 Fed. 36; as to how the record may be proved, see, Allin v. Hiscock, 1 Root (Conn.) 88; Wilbur v. Abbott, 59 N. H. 132; Ladd v. Blunt, 4 Mass. 402; Hallum v. Dickinson, 47 Ark. 120, 14 S. W. 477; Janvier v. Vandever, 3 Harr. (Del.) 29; Fitch v. Porter, 30 N. Car. 511. Owens v. Chandler, 16 Ark. 651. § 2028. Meaning of term.-A divorce is the legal separation of man and wife, effected, for cause, by the judgment of a court, and either totally dissolving the marriage relation, or suspending it so far as concerns the cohabitation of the parties. A divorce a mensa et thoro is a divorce from table and bed, or from bed and board; a partial or qualified divorce, by which the parties are separated and forbidden to live or cohabit together, without affecting the marriage itself. A divorce a vinculo matrimonii is a divorce from the bond of marriage; total divorce of husband and wife, dissolving the marriagė tie, and releasing the parties wholly from their matrimonial obligations.1 § 2029. Burden of proof.-The burden is on the complainant to establish the charges made in his bill. Thus, the complainant in a bill for divorce on the ground of cruelty has the burden of proof, and must sustain the case by something more than equally balanced testimony. It is frequently held that the judge is not to decree a divorce unless the evidence be full and satisfactory to his mind ;* and the burden of proof has been held to be on the husband to show that the wife's separation was both wilful and obstinate where he sues for divorce on the ground of desertion." The burden of proof is generally upon the party relying upon the avoidance of a marriage or upon a divorce. Thus, where the claim in a suit is that the first marriage was avoided within the age of consent, or that a divorce was procured, the one setting up such facts must prove them. But, as elsewhere shown, there are cases in which a divorce prior to a subsequent marriage is presumed. Where the husband sues for divorce on the ground of adultery, and continues to dwell with the wife in the same house, and she sets up a condonation which he denies, the burden is on the wife to prove the condonation." 8 § 2030. Presumptions.-Presumptions in favor of applicants for a divorce are not indulged; the applicants must prove a full and complete case. This is also the rule even in case of a default, and a divorce cannot be granted by consent and without evidence of the right thereto.10 The party charged with the offense is presumed innocent until the contrary is shown.11 A presumption of a divorce, it is held, does not arise from a separation, even though it has extended over a period of years.12 Yet it has been held that after the lapse of over forty years, a divorce will be presumed from the fact that a husband separated from his wife, going to another state, and that, several years later, each married again.13 But, it has been held in some jurisdictions that where the records of the counties in which a man and wife have lived show no divorce, there is no presumption of divorce in favor of the woman because she marries another, though the first husband also marries another, with whom, however, it is not shown Fox v. Fox, 25 Cal. 587; Scott v. Scott, 17 Ind. 309; Moyler v. Moyler, 11 Ala. 620; Williams v. Williams, L. R. 1 P. & D. 29, 31; Evans v. Evans, 1 Sw. & Tr. 328. 5 presumption may not arise in his 10 Welch v. Welch, 16 Ark. 527; Payne v. Payne, (N. J. Eq.) 28 Stafford v. Stafford, 41 Tex. 111. Atl. 449. 578. 11 Pollock v. Pollock, 71 N. Y. 137; Donahue v. Donahue, 17 Ill. App. N. v. N., 3 Sw. & Tr. 234. 12 Wiseman v. Wiseman, 89 Ind. 'Graham v. Graham, 50 N. J. Eq. 479. 701, 25 Atl. 358. 8 Linden v. Linden, 36 Barb. (N. Y.) 61, but this does not mean that 13 Harvey v. Carroll, 5 Tex. Civ. App. 324, 23 S. W. 713. that he lived. A presumption of divorce through legislative enactment will never arise from mere lapse of time.15 But, it has been held that a presumption arises that a legislative act granting a divorce was within the provisions of the constitution, in the absence of evidence to the contrary. 16 In an action for divorce on the ground of adultery, a presumption as to the continuation of illicit cohabitation arises where such cohabitation is once shown and the parties continue to live under the same roof." A presumption of innocence arises in favor of the wife upon a charge of infidelity by the husband. Thus, it has been held that where a charge of infidelity is made by the husband, the law presumes that the wife is innocent of the charge, unless the contrary is shown.18 Guilt of adultery, however, is presumed, or at least may be inferred, in an action for divorce when a criminal desire and opportunity to gratify it has been shown.19 In an action for divorce on the ground of abandonment, an intent to abandon will be presumed to continue when once established.20 Where the defense is condonation, forgiveness and cohabitation are not presumed. Thus, in an action by a wife for divorce on the ground of cruelty it appeared that plaintiff continued to live at their home after the commencement of the suit, but she slept in a room separate from defendant, and no longer lived with him as wife, and it was held that cohabitation and forgiveness of the alleged acts of cruelty would not be presumed;21 and to bar her action these must be proved.22 There are cases where condonation will be presumed. Thus, where a bill for divorce on account of the wife's cruelty is filed ten years after the last act of physical violence, and more than three years after complainant abandoned his wife, his offense will be presumed to have been condoned.23 There is the presumption that the husband is the father of Barnes v. Barnes, 90 Iowa 282, 57 N. W. 851. 15 McCarty v. McCarty, 2 Strob. (S. Car.) 6, 47 Am. Dec. 585. 1e Wright v. Wright, Lessee, 2 Md. 429, 56 Am. Dec. 723, legislative divorces are now prohibited by most of the constitutions, and the right to grant such divorces was always somewhat questionable in this country. 17 Smith v. Smith, 4 Paige (N. Y.) 432, 27 Am. Dec. 75. VOL. 3 ELLIOTT Ev.-33 |