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that the defendant had another wife (b) Marriage obviously invalid. living at the time of the marriage an- If, in an action by a wife for dinulled by the decree, it is competent, vorce, the existence of the marriage is under the provisions of our statute, for neither admitted by the husband nor the court in such proceeding to also

tentatively shown by the wife, no aldecree reasonable alimony to the pe- lowance for her support or assistance titioner.”

will, in the absence of statute, be In Bardin v. Bardin (1893) 4 S. D. granted. 305, 46 Am. St. Rep. 791, 56 N. W. California.—Hite v. Hite (1899) 1069, a wife brought an action for di- 124 Cal. 389, 45 L.R.A. 793, 71 Am. St. vorce, and defendant appealed from Rep. 82, 57 Pac. 227 (action for dian order granting alimony pendente vorce). lite. The defendant admitted a cere- Florida.-Banks v. Banks (1900) monial marriage with the plaintiff, 42 Fla. 362, 29 So. 318 (action for but asserted that at that time the maintenance). plaintiff had a husband living, to Georgia.-Roseberry V. Roseberry which the plaintiff rejoins under oath, (1855) 17 Ga. 139 (action for divorce). admitting the former marriage, but Kansas.-Wilhite v. Wilhite (1889) averring that at the time of her mar- 41 Kan. 154, 21 Pac. 173 (action for riage to the defendant her former maintenance); Werner

V. Werner husband had been absent for a space (1898) 59 Kan. 399, 68 Am. St. Rep. of more than ten years, and that she 372, 53 Pac. 127 (action for divorce). believed him dead. These allegations Michigan.-Lapp v. Lapp (1880) 43 were uncontroverted by the defendant. Mich. 287, 5 N. W. 317 (action for diThe court held that although the al- vorce). lowance of alimony pendente lite and Mississippi.--Aldridge v. Aldridge counsel fee was dependent on the (1918) 116 Miss. 385, 77 So. 150 (acmarital relation, that relation need tion for divorce). not be shown conclusively or beyond New Jersey.-Vreeland v. Vreeland a doubt before the allowance may be (1866) 18 N. J. Eq. 43 (action for granted; but that “the plaintiff must maintenance); Cray v. Cray (1880) 32 make out a reasonably plain case of N. J. Eq. 25 (action for divorce); the existence of the marital relation,” Robinson v. Robinson (1913) 82 N. that such matters should be shown by J. Eq. 466, 88 Atl. 951 (action for disuch legitimate proofs as may "make vorce). out, in the judgment of the court, a England. Smyth v. Smyth (1824) 2 fair presumption of the fact of mar- Addams, Eccl. Rep. 254 (action for riage."

maintenance). In Walker v. Walker (1885) 10 Ont. In Hite v. Hite (Cal.) supra, a wife Pr. Rep. 633, a wife claimed alimony

brought an action for divorce, allegon the ground of desertion; she as

ing a marriage with the defendant, who serted under oath the fact of her mar

denied that the marital relation ever riage with the defendant, giving par

existed. It was held that a prima facie ticulars as to the ceremony.


showing of the marriage was not suffihusband denied the marriage and pro

cient to warrant an allowance of aliduced some confirmatory evidence.

mony, where the marital relation was

denied. There were, however, many undenia

When, in a suit brought by a wife, ble facts of conduct and reputation

the allegations of marriage are not from which a marriage de facto might

supported by any proof except an unbe inferred, and thereon the court al

sworn bill of complaint, and there is a lowed alimony pendente lite.

denial of the marriage by the husband In Brown v. Brown (1907) 13 B. C.

under oath, there is no foundation for 73, a wife was granted permanent ali- the granting of alimony pendente lite, mony in an action for divorce brought suit money, or counsel fees. Banks v. by her on the ground of the impotency Banks (Fla.) supra. of the husband.

In Roseberry v. Roseberry (Ga.) supra, a wife brought an action for marriage had ever existed, alimony divorce, to which the husband an- and counsel fees pendente lite could swered, alleging the marriage to be not be allowed. void on the ground that the wife had a In Cray v. Cray (1880) 32 N. J. Eq. husband living at the time of the mar- 25, a wife brought suit for divorce a riage. It was held that, the marriage mensa et thoro, and for separate having been denied, alimony would maintenance. The defendant annot be granted.

swered that the plaintiff had a husWhere a woman who sues for ali- band living at the time of the marmony has married within three months riage, and stated also that the sepaafter having been divorced by a form- ration was with her consent, and at er husband, and a statute of the state her express wish. Since the allegain which she is married provides that tions were completely met by the andivorced persons may not marry with- swer and affidavits, no alimony was alin six months of the date of the di- lowed. vorce, such marriage contract is void, In Robinson v. Robinson (1913) 82 and no basis exists for the allowance N. J. Eq. 466, 88 Atl. 951, a wife of alimony. Wilhite v. Wilhite (Kan.) brought an action for a divorce, and supra.

the husband, denying the validity In Werner v. Werner (1898) 59 Kan. of the marriage, asserted that she 399, 68 Am. St. Rep. 372, 53 Pac. 127, had a husband living at the time. a wife brought suit for divorce, and The wife admitted that at the time was met with the answer that she had of the marriage a divorce suit was a husband living at the time of the pending between herself, as petitioner, marriage. The marriage was held to and her former husband, in which be void from the beginning, and hence a decree of divorce was entered in it was held that no alimony could be her favor twenty-three days after allowed.

the present marriage had taken place; Where a wife brought an action for but asserted that at that time she was divorce on the ground of cruelty, and under the belief that the divorce had it appeared that she knew that, at the already been granted. The defendtime of her marriage with the defend- ant denied this, and asserted that his ant he had a wife living apart from wife knew at the time that she was him, under articles of separation, it not divorced, although it was unknown was held that the marriage was void to him. The court said that if the in fact, and the plaintiff was not en- plaintiff did indeed believe that she titled to temporary alimony. Lapp v. was divorced, and she and the defendLapp (Mich.) supra.

ant lived together as man and wife, In Aldridge v. Aldridge (Miss.) believing their marriage lawful, then, supra, a wife brought a bill for a di- the decree of divorce having been vorce and alimony on the ground of made, their continuous cohabitation cruel and inhuman treatment by the and repute would, by inference, supply husband. It was shown by the hus- the consent essential to create the band's answer that at the time of the marital relation. Their conduct would marriage now sought to be dissolved

be accepted as meritorious from its husband and wife had each a living inception. If, however, the plaintiff and undivorced spouse. It was held

knew of the obstacle to her marriage that, the marriage having been void

with the defendant, and it had been ab initio, no alimony could be allowed.

known to him only after the separation In Vreeland v. Vreeland (N. J.)

of himself and wife, there would need supra, a wife brought an action for

to be further evidence of mutual conalimony, and the marriage was denied

sent to marriage by the parties after by the defendant, who charged that the entry of the decree of divorce. the plaintiff had someone impersonate

Matrimonial habit and repute are of him at a pretended ceremony.

There importance only where the good faith was no proof of cohabitation or repute of the petitioner is established. It was thereof. It was held that, since no held that, since the plaintiff had not


produced the evidence sufficient to establish her case, alimony pendente lite, the basis of which is an existing marriage, could not be allowed.

In Smyth v. Smyth (1824) 2 Addams, Eccl. Rep. (Eng.) 254, the court, on the wife's petition for formal allotment of a sum in the nature of alimony, said that this was impossible, because not even a marriage de facto had been established by proof or confession, but recommended nevertheless that the wife should be alimented during the long vacation.

In Strode v. Strode (1867) 3 Bush (Ky.) 227, 96 Am. Dec. 211, it was held, contrary to the general rule and without statutory provision, that a woman without fault and of good character was entitled to alimony in a suit by her for divorce, even though the existence of the marital relation was not established.

b. Under statute. In a number of jurisdictions, provision is made by statute for the grant of alimony or other financial assistance to a woman who seeks the dissolution of an invalid marriage. See the following cases:

Connecticut.-Stapleberg v. Stapleberg (1904) 77 Conn. 31, 58 Atl. 233.

Iowa.-York v. York (1872) 34 Iowa, 530; McFarland v. McFarland (1879) 51 Iowa, 565, 2 N. W. 269; Daniels v. Morris (1880) 54 Iowa, 369, 6 N. W. 532; Barber v. Barber (1887) 74 Iowa, 301, 37 N. W. 381.

New Hampshire.—Bickford v. Bickford (1908) 74 N. H. 448, 69 Atl. 579.

North Carolina.-Lea v. Lea (1889) 104 N. C. 603, 10 S. E. 488.

Rhode Island.-Leckney v. Leckney (1904) 26 R. I. 441, 59 Atl. 311.

Washington.-Arey v. Arey (1900) 22 Wash. 261, 60 Pac. 724.

Under statute providing that "whenever from any cause any marriage is void the superior court . may thereupon make such order concerning alimony as it might make in a proceeding for a divorce between such parties if married," it has been held that the statute applied to marriages void ab initio, such as the marriage of an uncle and his niece. Sta. pleberg v. Stapleberg (Conn.) supra.

In Daniels v. Morris (1880) 54 Iowa, 369, 6 N. W. 532, wherein a wife brought suit for the annulment of her marriage, on the ground that the husband had a wife living at the time of the marriage, she was allowed compensation under statute which provided that where, in such cases, innocence and good faith were shown, compensation might be granted as in cases for divorce. So, in Barber v. Barber (1887) 74 Iowa, 301, 37 N. W. 381, a wife brought an action to determine the validity of her marriage, requesting separate maintenance and permanent alimony if it were found valid, and compensation in case of its invalidity. It was found that the husband was of unsound mind at the time of the marriage, but that the wife was in complete ignorance thereof, and hence was entitled to compensation by virtue of a section of the Code which so provides for innocent parties entering into contracts of marriage in good faith, where the marriage is declared a nullity. However, in York v. York (Iowa) supra, it was held that where, in a wife's action for divorce, the marriage is absolutely denied, and not even established prima facie, temporary alimony cannot be allowed. In McFarland v. McFarland (1879) 51 Iowa, 565, 2 N. W. 269, a divorce was obtained by a husband, who shortly thereafter persuaded his former wife to return to him, stating that the divorce was of no effect, and conveying to her the belief that he intended present marriage: this was followed by a cohabitation of six years; and it was considered that this cohabitation, together with the intention of present marriage, established anew the marriage relation dissolved by the divorce, and constituted thereby a basis for the allowance of temporary alimony and counsel fees.

In Bickford v. Bickford (N. H.) supra, a wife brought an action to annul her marriage on the ground that she had a husband living at the time of her marriage, although at that time she had been informed and then believed that he had obtained a divorce from her. The marriage was annulled, and an order allowing a monthly sum for

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support upheld, by virtue of a statute tion for divorce, in case she has ne providing that, on a decree of nullity, property of her own available for the court may order a husband to pay such purpose, as it may think reasonsuch sum of money as may be deemed able and proper.” The court held that just.

the statutes cited, providing as they In Lea v. Lea (1889) 104 N. C. 603, did for a divorce in case of any mar10 S. E. 488, a wife brought an action riage void or voidable by law, applied to annul her marriage with the defend- directly to the case in question, and ant, on the ground that he had a wife must be interpreted as including and living at the time of the ceremony. considering actions brought for the The court, in holding that the wife was annulment of marriages de facto, and entitled to alimony, pointed out that that temporary alimony and counsel the provision of the Code, specifying fees would be allowed. that “alimony may be given where any In Arey V. Arey (1900) 22 Wash. married woman shall apply to a court 261, 60 Pac. 724, a wife brought an acfor a divorce from the bonds of mat- tion for the annulment of her marrimony or from bed and board,” was riage, for the reason that she was unto be interpreted with its common-law der the legal age of consent at the significance, and at common law a time of the ceremony. The court held divorce a vinculo could be granted that there was a marriage de facto, only for a cause existing prior to the and that the provisions of the Divorce marriage,—for something "rendering Act for suit money and liability were the marriage unlawful ab initio.” The

applicable to the case; that the marstatute is to be considered as embrac

riage was voidable only at the suit of ing "all cases where there has been

the wife; and that she was entitled to a de facto marriage."

suit money and counsel fee. In Leckney V. Leckney (1904) 26

In Chase v. Chase (1866) 55 Me, 21, R. I. 441, 59 Atl. 311, a wife brought an action for the annulment of her mar

a wife brought an action for divorce riage to the defendant, on the ground

on the ground of impotence of the husthat he had a wife living at the time

band. A statute provided for divorce of the marriage. A statute provided

and the restoration of the property of for “divorce in case of any marriage

the wife in such a case, and in the originally void or voidable by law." same section declared that alimony Another statute granted a court power might be allowed in divorces granted to "make such allowance to the wife for any other cause. It was held that out of the estate of her husband, for alimony was directly excepted in suits the purpose of enabling her to pros- for divorce on the ground of impoecute or defend against any such peti- tence.

R. S.

N. R. McFALL et al., Appts.,


Arkansas Supreme Court - April 14, 1919.

(- Ark. —, 211 S. W. 919.)

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Bank — liability for dishonoring check.

1. Proof of actual damages is not necessary to enable a merchant or trader to recover substantial damages from a banker who dishonors his checks when he has funds on deposit.

[See note on this question beginning on page 947.)

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(-- Ark. —, 211 8. W. 919.) Evidence presumption of damages awarded a merchant for wrongful disdishonor of checks.

honor of his checks, the jury may con2. Substantial damages

presumed in case a bank wrongfully dis

sider the importance of the checks to honors the checks of a merchant. the business, the size of the account, [See 5 R. C. L. 548.]

and the drawer's standing as a business Damages dishonor of checks elements.

man in the community. 3. In determining the damages to be

[See 5 R. C. L. 550, 551.] (McCulloch, Ch. J., and Smith, J., dissent.)

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APPEAL by plaintiffs from a judgment of the Circuit Court for St. Francis County (Jackson, J.) in their favor, for less than the amount asked for, in an action brought to recover damages for alleged wrongful dishonoring of plaintiffs' checks. Reversed.

The facts are stated in the opinion of the court.
Mr. C. W. Norton, for appellants: court to recover damages for wrong-

Plaintiffs were entitled to recover fully and wilfully dishonoring or resubstantial damages.

fusing to pay certain checks drawn 5 Cyc. 535; Commercial Nat. Bank

by them upon appellee in favor v. Latham, 29 Okla. 88, 116 Pac. 197,

of the Southwestern Telephone & Ann. Cas. 1913A, 999; Lorick v. Palmetto Bank & T. Co. 74 S. C. 185, 54

Telegraph Company engaged in S. E. 206, 7 Ann. Cas. 818; Columbia

business in Forrest City, Arkansas, Nat. Bank v. MacKnight, 29 App. D.

and various wholesale merchants C. 580, 10 Ann. Cas. 897; Siminoff v. engaged in business in Memphis, Jas. H. Goodman & Co. Bank, 18 Cal. Tennessee. In substance, the comApp. 5, 121 Pac. 939; Wiley v. Bunker plaint alleged that appellants were Hill Nat. Bank, 183 Mass. 495, 67 N.

partners engaged in a general groE. 655; Third Nat. Bank v. Ober, 102

cery and butcher business in MadiC. C. A. 178, 178 Fed. 678; Spearing

son, Arkansas; that appellee was a v. Whitney Cent. Nat. Bank, 129 La. 607, 56 So. 548; Western Nat. Bank v.

national bank engaged in the bankWhite, 62 Tex. Civ. App. 374, 131 s. ing business at Forrest City, ArkanW. 828.

sas; that in May, 1917, appellants The bank could not defend on the were depositors in appellee's bank strength of its own error; mistake or and issued checks on their deposit, error is no excuse.

payable to the Southwestern Tele5 R. C. L. 546; Atlanta Nat. Bank v. . phone & Telegraph Company and Davis, 96 Ga. 334, 51 Am. St. Rep. 139, certain wholesale merchants in 23 S. E. 190; Lorick v. Palmetto Bank

Memphis, Tennessee, which checks, & T. Co. 74 S. C. 185, 54 S. E. 206, 7

in the course of negotiation, were Ann. Cas. 818. Messrs. Mann, Bussey, & Mann, and

passed through banks in Memphis, R. J. Williams, for appellee:

St. Louis, and Forrest City; that, in It is not necessary that the instruc- due course of business, said checks tions use the word "substantial,” but

were presented to appellee for payit is only necessary that the jury be ment, and wrongfully and wilfully told that the plaintiffs were entitled refused or “turned down” by it on to recover such sum as would be a fair the 18th, 19th, and subsequent dates and just compensation for injury sus- in May, 1917, to the damage of aptained.

pellants in the sum of $6,000. Schaffner v. Ehrman, 139 Ill. 109, 15 L.R.A. 134, 32 Am. St. Rep. 192, 28

Appellee filed answer, denying N. E. 917.

that it wilfully or wrongfully re

fused to pay or “turned down" Humphreys, J., delivered the checks of appellants, or that appelopinion of the court:

lants were damaged in any sum by Appellants instituted suit against reason of its refusal to pay the appellee in the St. Francis circuit checks when presented; but admit

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