Kilborn v. Field

delivered the opinion of the court, May 10th 1875.

Marriage is a civil contract, but it is more, it is an institution of the state. Parties cannot rescind or dissolve it, as they may all other contracts, at their own mere will. The state has provided for what causes alone it can be dissolved, and the question is, in all cases, submitted upon evidence adduced, to an appropriate tribunal. There can be no decree pro confesso upon a libel for divorce. If either party will not attend, the court shall inquire and decide ex parte by the examination of witnesses or interrogations, exhibits, or other legal proofs, had either before or at the hearing : Act of March 13th 1815, sect. 2 ; 6 Sm. Laws 287. The libel must be supported by an affidavit of the libellant, that “ the complaint is not made out of levity or collusion between the husband and wife, and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the petition or libelIbid. Without such an affidavit the libel is fatally defective, and the decree for divorce under it will be reversed: Hoffman v. Hoffman, 6 Casey 419. Causes for divorce ‘‘being recognised by law,” we are to take it that the true philosophy of life, the ends of justice, and the interests of society, are best promoted by allowing the dissolution for such recognised causes. Courts, however, ought to be careful to see that all the requirements of the law, in such proceedings, be complied with, both as to form and substance, so that divorces may never be obtained through “ levity or collusion per Thompson, J., Ibid. Such then being the clear policy of the law, every contract founded upon a consideration in contravention of it must, according to well settled principles, be illegal and void. The libellant can no more buy the release or default of the respondent, than *196a defendant in a criminal prosecution can buy off the prosecutor and compound a felony. If the consideration of the note sued upon was in part or in whole that the respondent should not appear and oppose the divorce, the note was void. Whether such was the consideration was a question of fact which ought to have been submitted to the jury.

Judgment reversed, and a venire facias de novo awarded.