by cohabitation and birth of issue, shall not be declared void in any proceeding after death of either party thereto. The power of court to declare such marriages void is confined to cases where parties are living: Baity v. Cranfill, 91-293.

Question whether or not marriage was void ab initio must be between the parties, and question can not be raised in action by children of such marriage, claiming as next of kin or heirs at law, in order to bastardize the issue: Setzer v. Setzer, 97-252.

Semble: That facts required to be set forth in affidavit by section 1563 are necessary to give court jurisdiction under this section: Concurring opinion of Clark, J. in Johnson v. Johnson, 141-94. Action to have marriage declared void because of preexisting disqualifications to enter into marriage relation is action for divorce: Lea v. Lea, 104-603.

As to constitutionality of acts as above, see Baity v. Cranfill, 91-293.

1561. Grounds for absolute divorce. Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of the party injured, made as by law provided, in the following cases:

Divorce can only be granted upon application of person injured: House v. House, 131-142; Tew v. Tew, 80-316—and husband not injured where he is cause of wife's misconduct, Ibid.

1. If the husband shall commit fornication and adultery.

In allowing a divorce for "fornication and adultery," legislature intended same construction to be put upon words as when used in criminal statute, which is that the misconduct must be habitual: Prendergrast v. Prendergrast, 146-; see also section 3350-one act of adultery not being sufficient, Ibid.

Wife who has separated herself from husband can not obtain divorce on ground of adultery committed by husband after separation unless she alleges and proves that compelled to leave husband on account his violent or outrageous conduct: Foy v. Foy, 35-90; Wood v. Wood, 27-674.

Petition for divorce on ground of adultery of defendant need not allege that petitioner has not been guilty of adultery: Steel v. Steel, 104-631; Edwards v. Edwards, 61-534.

2. If the wife shall commit adultery.

Where wife commits adultery and husband afterwards lives with her after learning it, and keeps up connubial relations, divorce will not be granted him: Sparks v. Sparks, 94-257; see Lassiter v. Lassiter, 92-129; Gordon v. Gordon, 88-45. Husband can not obtain divorce from wife on ground of adultery committed by her after separation, if such separation caused by fault or at instigation of husband: Tew v. Tew, 80-316; Moss v. Moss, 24-55. Petition for divorce, because of adultery of defendant, need not allege that petitioner has not been guilty of adultery: Steel v. Steel, 104-631; Edwards v. Edwards, 61-534. Where cruelty of wife compelled husband to abandon her, adultery by him after abandonment is no valid defense to his suit for divorce: Setzer v. Setzer, 128-170, and cases cited therein. When found by jury that both parties guilty of adultery, and no

condonation proved, case properly dismissed: Horne v. Horne, 72-530. As to what constitutes ground of rescrimination for wife in action by husband, see House v. House, 131-140. As to evidence of physical condition of person with whom adultery alleged to have been committed, see Perkins v. Perkins, 88-41. Respondent not compelled to answer if he had had intercourse with wife: Smith v. Smith, 116-386. Husband and wife both incompetent to prove adultery in action for divorce on that ground: Perkins v. Perkins, 88-41; see also section 1636-also their admissions are incompetent, Steel v. Steel, 104-631; Perkins v. Perkins, 88-41. In addressing the jury it is incompetent for counsel to exhibit baby of defendant to jury and state that if divorce granted it would disgrace and bastardize it: Hopkins v. Hopkins, 132-25. Mere neighborhood rumor of improper relations between defendant and paramour are incompetent: Ibid. That alleged adulterous wife offered to pay cost of criminal prosecution of paramour is competent: Toole v. Toole, 112-152. Cases merely referring to section: Prendergrast v. Prendergrast, 146-; Morris v. Morris, 75-169. 3. If either party at the time of the marriage was and still is naturally impotent.

For case under subsection prior to enactment of section 2083, see Smith v. Morehead, 59-360. Husband is competent witness to prove impotency of wife: Barringer v. Barringer, 69-179. Subsection merely referred to in Prendergrast v. Prendergrast, 146-; Morris v. Morris, 75-169.

4. If the wife at the time of the marriage be pregnant, and the husband be ignorant of the fact of such pregnancy and be not the father of the child with which the wife was pregnant at the time of the marriage.

Unknown illicit intercourse, even though incestuous, prior to marriage will not authorize decree of divorce under subsection, unless pregnancy resulted: Steel v. Steel, 104-631.

5. If there shall have been a separation of husband and wife, and they shall have lived separate and apart for ten successive years, and they shall have resided in this State for that period, and no children shall have been born of the marriage.

Code, s. 1285; 1887, c. 100; 1889, c. 442; 1899, c. 29; 1903, c. 490; 1871-2, c. 193, s. 35; 1879, c. 132; 1905, c. 499; 1907, c. 89.

1562. From bed and board; grounds for. The superior court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases:

As to rights of husband in wife's land, where she has obtained divorce a mensa, see Taylor v. Taylor, 112-134, and cases under sections 2102 and 2111.

Condonation is forgiveness upon condition that the party forgiven will abstain from like offense afterwards. If condition is violated original offense is revived: Lassitter v. Lassitter, 92-129; Gordon v. Gordon, 88-45. 1. If either party shall abandon his or her family; or,

Where husband made wife leave him, or so failed to provide for her

that she was compelled to leave, it amounts to abandonment of her: High v. Bailey, 107-70; Setzer v. Setzer, 128-172. As to sufficiency of complaint under subsection, see Griffith v. Griffith, 89-113; Jackson v. Jackson, 105-433. When complaint filed for divorce a mensa et thoro hereunder, but, pending action, new statute passed giving divorce a vinculo for same offense, and plaintiff is allowed to amend complaint so as to get divorce a vinculo, failure to file affidavit with amended complaint renders it inoperative: Holloman v. Holloman, 127-15.

2. Shall maliciously turn the other out of doors; or,

Where no evidence of turning feme plaintiff out of doors at any time more than six months before action, issue as to such fact properly excluded: Jackson v. Jackson, 105-433; O'Connor v. O'Connor, 109-139. As to sufficiency of complaint under subsection, see Jackson v. Jackson, 105-433; Griffith v. Griffith, 89-113; Little v. Little, 63-22.

3. Shall, by cruel or barbarous treatment endanger the life of the other; or,

Divorce will not be granted for cruel and barbarous treatment where appears that acts complained of were committed more than ten years prior to commencement of action, and in meantime parties had continued to live together: O'Connor v. O'Connor, 109-139.

That husband communicated infectious disease to wife is not ground for divorce under subsection: Long v. Long, 9-192-but where drunken husband cursed wife and drove her from house, and by demonstrations of violence caused her to leave bedside of dying child and seek safety at distance of several miles, she is entitled to divorce, Scoggins v. Scoggins, 85-347.

As to contents of complaint under subsection, see Martin v. Martin, 13027; O'Connor v. O'Connor, 109-139; Jackson v. Jackson, 105-433; Griffith v. Griffith, 89-113.

4. Shall offer such indignities to the person of the other as to render his or her condition intolerable and life burdensome; or,

To entitle wife to divorce under subsection, indignity offered by husband must be such as may be expected seriously to annoy woman of ordinary good sense and temper, and must be repeated or continued in, so that it may appear to have been done wilfully and intentionally, or at least consciously by husband to annoyance of wife: Miller v. Miller, 78-102, overruling Everton v. Everton, 50-202.

Not necessary that indignities complained of should be striking or even touching body, but foul and injurious accusations, often repeated, with withdrawal of all intercourse, refusing to bed with wife, and denial that she is wife, with threats against her life, are sufficient to entitle her to divorce: Green v. Green, 131-533; Coble v. Coble, 55-392-but husband communicating infectious disease to wife is not ground for divorce under subsection, Long v. Long, 9-192.

Where drunken husband cursed wife and drove her from the house, and by demonstrations of violence caused her to leave bedside of dying child and seek safety at distance of several miles, she is entitled to divorce: Scoggins v. Scoggins, 85-347-also where defendant had repeatedly threat

ened to chastise feme plaintiff and had boasted of having done so, that he had inflicted bruises upon her person, and that she had offered to return and live with him if he would agree not to whip her, which he refused to do, she is entitled to divorce, Taylor v. Taylor, 76-433.

Quaere: Are not parties to action hereunder competent witnesses and compellable to give evidence for or against each other, except as to adultery: Taylor v. Taylor, 76-433.

Evidence of acts of husband within six months of beginning of action is not competent: Green v. Green, 131-533; O'Connor v. O'Connor, 109-139; Jackson v. Jackson, 105-433.

For definition of condonation, and effect where offense condoned is repeated, see Lassiter v. Lassiter, 92-130; Gordon v. Gordon, 88-45.

Words "indignities to person” defined in Taylor v. Taylor, 76-436; Coble v. Coble, 55-395.

What constitutes such "indignity'' hereunder is question of law and not of fact: Harrison v. Harrison, 29-490.

As to sufficiency of complaint under subsection, see Green v. Green, 131535; O'Connor v. O'Connor, 109-139; Jackson v. Jackson, 105-433; Griffith v. Griffith, 89-113; White v. White, 84-340; Joyner v. Joyner, 59-322; Harrison v. Harrison, 29-485.

Subsection merely referred to in McQueen v. McQueen, 82-471; Erwin v. Erwin, 57-83.

5. Shall become an habitual drunkard.

Subsection merely referred to in Taylor v. Taylor,, 112-135.
Code, s. 1286; 1871-2, c. 193, s. 36.

1563. Affidavit to be filed with complaint; provisos. The plaintiff in a complaint seeking either divorce or alimony, or both, shall file with his or her complaint an affidavit that the facts set forth in the complaint are true to the best of affiant's knowledge and belief, and that the said complaint is not made out of levity or by collusion between husband and wife; and if for divorce, not for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the complaint; and the plaintiff shall also set forth in such affidavit, either that the facts set forth in the complaint, as grounds for divorce, have existed to his or her knowledge at least six months prior to the filing of the complaint; and that complainant has been a resident of the state for two years next preceding the filing of the complaint; or, if the wife be the plaintiff, that the husband is removing, or about to remove his property and effects from the state, whereby she may be disappointed in her alimony: Provided, if any wife shall file in the office of the superior court clerk of the county where she resides an affidavit, setting forth the fact that she intends to file a petition or bring an action for divorce against her husband, and that she has not had knowledge of the facts upon which said petition or action will be based for six months, then and in that case it shall be lawful for

such wife to reside separate and apart from her said husband, and to secure for her own use the wages of her own labor during the time she shall so remain separate and apart from her said husband: Provided further, that if such wife shall fail to file her petition or bring her action for divorce within ninety days after the six months shall have expired since her knowledge of the facts upon which she intends to file her said petition or bring her said action, then she shall not be entitled any longer to the benefit of this section.

Code, s. 1287; 1868-9, c. 93, s. 46; 1869-70, c. 184, 1907, c. 1008.

The purpose of this enactment discussed in Nichols v. Nichols, 128-108; Holloman v. Holloman, 127-16. The affidavit required is for the purpose of giving jurisdiction and court is powerless to make the decree without it, Johnson v. Johnson, 142-462; Williams v. Smith, 134-252; Nichols v. Nichols, 128-108-for the requirement of statute is mandatory, Williams v. Smith, 134-252; Hopkins v. Hopkins, 132-22; Nichols v. Nichols, 128108. Usual verification of complaint in civil actions is insufficient as affidavit such as required by this section: Hopkins v. Hopkins, 132-22; Martin v. Martin, 130-28. Whenever alleged that husband is removing or about to remove property from state, section allows wife to file complaint without regard to time when facts alleged as cause of divorce may have occurred: Scoggins v. Scoggins, 80-319; Gaylord v. Gaylord, 57-74.

Residence required by section must be actual residence: Schonwald v. Schonwald, 62-221, 55-367; see, however, Moore v. Moore, 130-335; Harris v. Harris, 115-587; Smith v. Morehead, 59-360-and it is not divested by wife temporarily leaving state without intention of residing elsewhere, Moore v. Moore, 130-333. Where wife sues who is resident of another state, legal maxim that "her domicile is that of her husband" will not avail instead of actual residence: Schonwald v. Schonwald, 55-367, 62-221; Smith v. Morehead, 59-364.

Where wife alleging sufficient facts for divorce a mensa and to obtain alimony makes necessary affidavit in reference to husband's removal of property from state, not necessary to file another complaint six months after facts alleged to have occurred, Scoggins v. Scoggins, 85-347.

Objection that affidavit is defective may be first taken in supreme court: 'Nichols v. Nichols, 128-108.

THE AFFIDAVIT ITSELF. Must state that action was not brought within six months from time plaintiff first acquired knowledge of facts therein: Clark v. Clark, 133-28; Dickinson v. Dickinson, 7-327-except in cases where husband about to dispose of property or remove same from state, when wife need not so aver, Scoggins v. Scoggins, 80-320; Gaylord v. Gaylord, 57-74. Affidavit and petition must be verified: Clark v. Clark, 133-28. Judge can amend affidavit in his discretion: Moore v. Moore, 130-333.

As bearing upon section, see McQueen v. McQueen, 82-471. Section merely referred to in Cram v. Cram, 116-294.

1564. Material facts found by jury; parties can not testify to adultery. The material facts in every complaint asking for a divorce