Pugsley vs. Pugsley, 9 Paige Ch. 589

The Chancellor. The proof is satisfactory as to the adultery. For it is evident, from the testimony of Carr, that the strange female with whom the defendant was found in bed in New-York, in the fall of 1838, was not the complainant, with whom the witness was acquainted. But the master’s report is defective in relation to the other matters referred to him.

Under the usual order of reference, to take proof of all the material facts charged in the bill and to report such proof to the court with his opinion thereon, the master should require proof of the facts which are necessary to give this court jurisdiction of the case. He should also examine the witness as to whether there had been any condonation of the offence, by the complainant, by cohabiting with the guilty party after being informed of the adultery. (Dodge v.

Dodge, 7 Paige’s Rep. 589.) Here there is nothing in the proofs to show that the marriage took place in this state, or that either of the parties resided here when the adultery was committed, or at the time of the commencement of this suit ; which matters are material to give jurisdiction to this court to grant a divorce dissolving the marriage contract. (2 R.

S. 144, § 38.) Where the defendant admits the adultery, by the answer, or by permitting the bill to be taken as confessed, the court requires proof of the facts necessary to give jurisdiction to the court to grant a divorce in the particular case, as well as proof of the adultery to prevent collusion between the parties. I presume the facts are, as alleged in the bill in this case, that the marriage was solemnized here, and that the parties have continued to reside in this state ever since.

But as there is nothing in the report on this subject, and nothing in the evidence reported from which the fact can be legally presumed, it must be referred back to the master to take further proof to establish this allegation in the bill. And. the master must also examine the witness Carr as to the time when he first disclosed the fact of adultery, testified to by him, to the complainant or her friends; and whether the parties lived together as husband and wife after that time. And he must make a full report as to the truth of every material fact alleged in the bill.

On the coming in of such further report, the complainant may apply, upon any motion day or in term, for a final decree thereon.