Weber v. Weitling. as a witness, to answer whether she was living with him as his wife; this was done under the advice of counsel, on the ground that the court had stricken from the answer the charges of her adulterous intercourse with Weber, as impertinent and scandalous. Her evidence was competent, but if guilty, she had the right to refuse. The lunatic, after his wife had for some time been living with Weber, was brought from the asylum, and placed in the county alms-house, at Snake Hill. Being quiet and harmless, he was allowed to go about; he went several times to see his child, at Weber's, where his wife was living. He went to his old home, and found it occupied by strangers, to whom his wife or Weber had rented it. He at last left the alms-house and the county, and in March, 1864, went to reside with his brother, Justus Hill, in the city of New York, where he has ever since continued to reside, working at his trade as a shoemaker, and partially earning his support. On the twentieth of August, 1864, an attachment was issued against him as a non-resident debtor, from the Hudson county Circuit Court, by the defendants, Ernest Weitling, and Louise, his wife, for a debt due to her. The land in question was attached, and the suit proceeded regularly to judgment; and under it, the land was sold at public auction, and conveyed by the auditors to Louise Weitling, in September, 1865. The price bid was $100; the property was subject to a mortgage for $500, and was worth $1500 or $2000. A few days afterwards, she conveyed the same to Justus Hill, for $1150, or about $600 above the mortgage. The debts, costs, and expenses of sale, in the attachment suit, were nearly $300. In November, 1865, the wife of the lunatic applied to this court for a commission of lunacy. This commission issued; and upon the return of the inquisition finding him a lunatic, the proceedings were remitted to the Orphans Court of Hudson county, who appointed Jacob Weber the guardian of the lunatic. The complainant contends, that the deed should be set Weber v. Weitling. aside, on the ground that the proceedings in attachment were void, the lunatic at the time being legally a resident of this state, and not subject to an attachment; that an attachment, or other proceedings at law, cannot be had against a lunatic, unless he appear and be defended by his next friend; and that the sale, if not void, should be set aside in equity, on the ground of gross inadequacy of consideration. The proceedings by foreign attachment are not void, merely because the defendant was a resident of the state at the issuing of the attachment. By the act, the foundation of the proceedings, and of the jurisdiction of the court, is not the non-residence of the defendant, but the filing of an affidavit by the plaintiff that he believes him to be a non-resident. If such affidavit is made in good faith, the proceedings are not void. The court, pending the proceedings, will inquire into the truth of the affidavit, and if it appears that the affidavit is not true, will arrest the proceedings and quash the attachment. In this case the affidavit was regular, and made in good faith, and the court cannot collaterally inquire into the fact of non-residence, and declare the proceedings void. But in fact, the lunatic was not, at the attachment, a resident of this state. He had no home here; his wife had abandoned him and his home, and his house was rented to, and in possession of strangers. He had no family. The question is not as to his domicile, but his residence. A man may not change his domicile, he may do nothing to acquire or establish a new domicile, but may have abandoned his residence. If a resident of the state sells his homestead, and goes to Europe with all his family, with the intention of remaining a few months, or a few years, and then returning and purchasing a new home somewhere in the state, and residing here, he acquires no new domicile; he is a citizen of New Jersey, but he has no residence here. The test of residence under the attachment act, is whether a person has such residence in the state as that a summons can be served. If he has not, his creditors are entitled to some remedy against his estate. here. Now this lunatic had no home in this state, where a Mills v. Mills. summons could be served by leaving a copy with a member of the family. He had a residence in New York, where he had lived and worked for months, and where he still continues to live. It is not necessary to decide that he had acquired a new domicile, or that a lunatic may have intellect enough to form the intention necessary to a change of domicile, although unable to manage his affairs. An action at law can be maintained against a lunatic, and the judgment against him is valid. Shelford on Lun. 395; Kernot v. Norman, 2 T. R. 390; Nutt v. Verney, 4 T. R. 121; Robertson v. Lain, 19 Wend. 650. If a personal suit can be maintained at law against a lunatic, there is no reason why a proceeding against his estate by attachment, is not valid. For mere inadequacy of consideration, equity does not set aside a deed, unless accompanied by fraud, or unless the inadequacy is so gross as to imply fraud. This was a fair publie sale by auditors; no fraud is pretended; the price was inadequate. The property was worth $1500 at least, and the bid was only $100; but there was a mortgage for $500, and Mrs. Weitling's debt was near $300. The consideration is not so grossly inadequate as to call upon the court to set aside the deed. The bill must be dismissed, with costs. MILLS vs. MILLS. 1. A general charge that the wife is an adulteress, is not sufficient to support a bill for divorce. The adultery must be designated, either by the name of the adulterer, or by circumstances, and the time when, and place where, it was committed. 2. Where the charge is of adultery with divers persons, whose names were unknown, and the only proof is of adultery with one person, who was well known to the complainant, the variance is fatal. 3. Bill dismissed, without prejudice to filing a new bill for adultery with the person against whom the crime was proved. Rogers v. Rogers. Mr. Gage, for complainant. THE CHANCEllor. In this case, the only adultery charged, is that with divers persons unknown to the complainant. Apart from the proof, no divorce can be granted on such bill. The adultery charged, must be designated either by the name of the adulterer, or by circumstances, and the time when, and place where, it was committed. Charging a woman with being an adulteress generally, is not sufficient. Marsh v. Marsh, 1 C. E. Green, 391. If this objection to the pleading had no foundation, the proof fails. The charge is of adultery with divers persons, whose names were unknown. The proof, and only prooof, is of adultery with one Joshua H. Butterworth, whose person. and name were well known to the complainant, as appears by the evidence. The bill must be dismissed, without prejudice as to filing a new bill for adultery with Joshua H. Butterworth. ROGERS vs. ROGERS. 1. The publication and service of the order upon an absent defendant, instead of a notice, as required by Rule 145, after May first, 1867, is a formal objection; in this case it was waived upon the production of additional proof to remove substantial objections. 2. It must clearly appear that the notice was sent to the defendant's post office address. That the solicitor was informed that the address to which it was sent was the defendant's address, without stating the source of information, or that he was credibly informed, and "verily " believes, is not sufficient. 3. Absence from the wife for three years, is not necessarily desertion in the legal sense of the term. The circumstances and manner of the desertion must be shown, that the court may determine the intent. Rogers v. Rogers. The petitioner filed her petition in this court for a divorce, on the ground of desertion; her husband having left her, and absented himself for three years. It appearing by a favit, that the husband was out of the state, she took an order of publication. A copy of this order, instead of the notice required by Rule 145, was sent to Charleston. An alarit was filed by the solicitor, stating that he had been "informed" that Charleston was his post office address. The circumstances and manner of the desertion did not appear. Mr. Mockridge, for petitioner, ex parte. THE CHANCELLOR. 1. The publication and service is of the order, and not of a notice, as required by Rule 145, after May first, 1867. 2. The notice was sent to Charleston, but it does not suEciently appear that this was defendant's post office address. The fact that the solicitor was so informed, without stating the source of information, or that he was credibly informed, and "verily" believed, is not sufficient. 3. It is clearly proved that defendant left his wife and stayed away three years. These facts may exist, and yet there be no desertion i the legal sense of the term. Many of our naval officers are off on a three years' cruise. This is no cause of divorce. The circumstances and manner of the desertion must be shown, that the court, and not the witnesses, may determine whether the defendant intended to abandon his wife, and when such abandonment commenced. If the second and third grounds of refusal are removed by additional proof, the first, being merely formal, will be waivel. |