Ferris v. Ferris

Bissell, J.

The defendant in error preferred her petition to the superior court, for a divorce; and the only question, arising upon this writ of error, regards the sufficiency of the petition. In deciding this question, the allegations regarding the fraudulent representations of the husband, can have no influence. It is not stated what those representations were; and that any were made, is rather matter of inference, than of positive averment.

Equally to be disregarded, is the averment respecting the absence of all sexual intercourse between the parties. The mere fact is stated, without any allegation as to the cause. It is a mere statement of the evidence, which might go, indeed, to support the principal fact stated in the petition.

Nor is it any answer to this writ of error, to say, that it being after judgment, every reasonable intendment ought to be made in support of the judgment. The court below found the facts stated in the petition to be true. The finding is, of course, confined to those facts; and necessarily precludes the finding of any other than those stated.

We are, therefore, brought to the single enquiry, whether the only ground for a divorce stated in the petition be sufficient to sustain the decree. The averment is this: “That at the time of their intermarriage, the said Abel was, ever since has been, and now is, labouring under a corporal imbecility.” Does the term “ corporal imbecility,” as here used, ex vi termini, import a confirmed and incurable impotency to consummate the marriage? To me, it seems not necessarily to import any such thing. This is mentioned by Blackstone, as one of the causes, which may be supervenient. 1 Bla. Comm. 440. And Christian, in a note, remarks: “Corporal imbecility may arise after the marriage, which will not then vacate the marriage, because *168 there was no fraud in the original contract.” 1 Bla. Comm. 440. note 12. Here he clearly recognizes this as a cause which may be supervenient, and as clearly rejects the idea, that the term corporal imbecility has a precise, technical meaning, and absolutely imports a natural, permanent and incujfeble impotence. Such imbecility may be temporary merely; and in such a sense does the term seem to be used in the petition before us. The averment is, that the respondent was “ labouring under a corporal imbecility.” There is not only no intimation, that the imbecility is permanent and incurable; but the expressions used strongly imply, that it is only temporary. Such, in my judgment, is the plain and obvious import of the language; and there surely can be no pretence, that this is a cause for a divorce.

It is, however, said, that the precise language of the law is adopted, and that corporal imbecility is mentioned in the books, as one of the causes of divorce. This argument proceeds on the ground, that the term has a precise, technical meaning; and if that has been shown not to be true, the argument of course fails. Besides, it is not sufficient that the language of the law is adopted. Adultery is a cause of divorce ; but it is not enough to state, that the respondent had committed adultery. Church v. Church, 3 Mass. Rep. 157 . Choate v. Choate, 3 Mass. Rep. 391 .

I would not intimate, that the record need contain grossly indelicate statements. But surely, enough should be stated to enable the court to see that the ease demands their interference. This, in my opinion, is not done, in the present case.

The judgment of the superior court must, in my opinion, be reversed.

The other Judges (Peters, J. dubitante) were of the same opinion.

Judgment reversed.