Cogswell v. Tibbetts

Richardson, C. J.

delivered the opinion of the court.

It seems, that at the common law, a woman did not forfeit her dower by committing adultery, even when she eloped with the adulterer.

But the statute of Westminster 2, cap, 34, expressly provided, that, if a wife voluntarily left her husband, and departed, and dwelt with the adulterer, she should lose her dower ; unless her husband became reconciled to her, and permitted her to cohabit with him. Bacon’s Jib. “ Dower,” F.

It is very clear, that under this statute, there could be no forfeiture without what is denominated an elopement. Perkins, sec. 354, 355.—2 B l. Com. 130.—Comyn’s Digest, “Plea der” 2, Y. 11.—Roll’s Ab. 680.—Co. Lit t. 32, a. & b. —Comyn’s Digest, "Dower” F. 2.

In Ra-stal 224, the forms of the plea may be found, and a replication denying the elopement. The form of a similar plea may also be found in Story’s Pl. 352. The forms of pleading shew, that the elopement is the cause of the forfeiture.

To work the forfeiture, it is not necessary, that the wife should voluntarily leave the husband ; for if, after she has been taken away against her will, she consents to abide with the adulterer, it will be deemed an elopement. 1 Roll’s Ab, 680— Perkins, sec. 354.

And to constitute an elopement, the wife must not only leave the husband, but go beyond his actual control. For if she abandon the husband, and goes and lives in adultery, in a house belonging to him, it is said not to be an elopement. Perkins, sec. 355.—1 Roll’s Ab. 680. —Fitz H. N. B. 150.

And it seems, that the consequences of an elopement are noi only a forfeiture of dower, under the statute, but a forfeiture of the right to use the husband’s credit, even to obtain necessaries. 1 Ld. Ray. 444.—1 Salk. 116.—12 M od. *43 Rep. 244. —1 Strange 647, Morris vs. Martin. —2 ditt o 1214, Bolton vs. Prentice.

Upon looking into the plea in the present case, we find, that it is alleged, that the demandant, Elizabeth, committed adultery on a particular day, and thereaflenvarJs lived in adultery, during the life of her late husband, he, her late husband, being absent on a voyage to Europe ; but there is no allegation, that she left her husband, and departed, and dwelt with the adulterer. Notwithstanding any thing alleged in this plea, she may have continued to reside in the family of her late husband, during the whole time mentioned in the plea ; and however gross her conduct there may have been, during the absence of her husband, it is very clear, it does not amount to an elopement.

The plea must be adjudged insufficient, and there must be Judgment for the demandants.