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husband against the delinquent mother, and the father's legal authority over the children, will be left to be exercised by him. Still cases may arise where, although the father have been entitled to a divorce, yet the interests of the children render it necessary that his power over them be suspended or abrogated ; as where he inculcates irreligion or immorality by precept or example; where he is an habitual, incorrigible drunkard ; where he systematically retards or neglects their education; where he treats them with harshness or cruelty; where he dissipates their means, or is wanting in the due care of it; or even where he is in such pecuniary circumstances as it make it hazardous to leave him in the charge of their property : in each and all of these cases the legal right of the father will be displaced, supposing the attendant circumstances are such as to enable a Court to act with advantage and with effect. Under such circumstances, the Court may, and probably will, in the exercise of the power given for that purpose, direct proper proceedings to be taken for placing the children outside the controul of both parents, and under the protection of the Court of Chancery. The Lord Chancellor will then deal with the custody of the children in the usual manner, and as he thinks most beneficial to them. Sometimes it happens that the family is divided-each parent taking part, and the father and mother are, under certain restrictions, allowed access to all the children. But in some cases, this latter privilege will be interdicted. As where it was established to the satisfaction of the Court that the father of children from 2 to 10 years of age was to be considered guilty of an unnatural crime, the Vice Chancellor said, it was impossible to permit any sort of intercourse with his children, even after he had escaped conviction.
8. The Court of Chancery has power to order that infants under 7 years, should be delivered to, and remain in, the custody of their mother until they attain that age ; and will exercise it in her favor if she has
1 2 Tudor's L. Ca. Eq. 563, 2nd edit.
not made herself unworthy of the consideration of the Court.
9. The new jurisdiction created, irrespective of the authority of the Lord Chancellor, giving this Court the power of making orders as to the custody of children, will probably be seldom exercised where the wife is the complainant, unless her case is meritorious. And we apprehend the decisions of the Court will be influenced or guided by the principles of the law which have been just stated. Where the rights are complicated, or where there is property to be protected, this Court will probably at once refer the case to the Court of Chancery. We are strengthened in this opinion by the absence of any provision in the statute giving the Court power to make orders, or to interfere again, when once the suit is terminated, although, as can be readily be supposed, many reasons may afterwards arise, why the custody of the children should not continue with the party to whom the Court first gave it.
10. The effects of the decree as to property, and the maintenance of the wife and children, are the next considerations.
11. In mentioning what were the requisites of every petition, we included statements of property brought in on the marriage settlements, and of all existing rights generally, It is important and necessary that the Court should be in possession of the fullest information upon these subjects, before determining what the future rights of the parties shall be.
It would be a tedious and idle task to speculate upon and define the almost endless questions that may spring up consequent upon the relation of the parties being altered in so unexpected and unforeseen a manner. We find nothing in the statute to determine what their rights shall be: but, when difficulties are in view, the Court will endeavour to meet them; so that ample justice shall be done to all.
12. The existing rights of children will remain un. affected by the decree of divorce.
13. As to the property of the wife. If the divorce has been for adultery by her, and that it appear she is entitled to any property in possession or reversion, the Court may order such settlement as they think proper to be made of such property or any part thereof for the benefit of the children and the husband, or either of them. This clause of the act is most useful where the family property, or the greater portion of it, is settled upon the wife.
14. Damages which may be obtained from the adul. terer,
may also be made the subject of settlement; the Court having power to direct in what manner such damages shall be paid and applied ; and to direct that the whole or any part thereof shall be settled for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the wife.3
15. The most important of these provisions made by the legislature is the one respecting the allowance to be made by the husband to the wife. The Court may, if they shall think fit, order that the husband shall secure to the wife such gross sum of money, or such life annuity as, having regard to her fortune (if any), to the ability of the husband, and the conduct of the parties, it shall deem reasonable; and the Court may refer it to one of the conveyancing Counsel of the Court of Chancery to approve and settle a proper deed or instrument, and may suspend pronouncing the decree until such deed shall have been executed.4 If the wife have a small separate property, there appears no reason why it should not be left to her. But if it is relatively more than the proportion she is entitled to, the Court will order a settlement of it to be made, allocating a part for the benefit of the husband or children ;5 while, on the other hand, if it is insufficient, the husband may be required to supply additional means.
i Sec. 45.
The husband may, either in the petition for dissolution of the marriage, or in a separate petition to that object only, claim damages from the adulterer, and the case shall be tried and decided in the same manner and upon the same principles as actions for criminal conversation. 3 Sec. 33.
4 Sec. 32. 5 And to make interim orders for their maintenance and education.
16. The same section of the act, which gives the Court controul over the persons of the children, empowers it to make such provision in the final decree as it may deem just and proper
respect to their maintenance and education."
No doubt, the Court will never be unmindful of the interests of the offspring of the those marriages; and that its powers will be wisely and judiciously exercised in securing to them the largest allowance and best education the circumstances of the parents can reasonably admit of,
Suits of nullity and jactitation of marriage shall be the subject of the next chapter.
i Sec. 35.
SUITS OF NULLITY AND JACTITATION OF
1. Power of Court to make decree.
1. The statute invests the Court with the power to determine the relation-or apparent relation-of husband and wife upon other grounds than those stated in the preceding chapter on divorce."
2. When marriages are void or voidable, a petition, stating the facts, and accompanied by a verifying affidavit, in which the existence of collusion and connivance are denied, may be presented to the Court.
3. The powers of the Court as to having questions of fact tried by a jury, the making of interim and final orders for the custody, education, and maintenance of children, are the same as upon a petition for divorce. 4
4. When the Court pronounces a decree of nullity, the children (if any) of the marriage are, in fact, illegitimate. They can inherit no property. And even
i Sec. 2
9 Sec. 41.