be such, that the defendant, if innocent, would be entitled to a divorce if the charge was substantiated in an action by such defendant (Morrell v. Morrell, 3 Barb. 236; and 1 ib. 318). And in such a case the adultery of the plaintiff should be set up in the answer in the same manner and be accompanied with the same allegations as are required in a complaint. The answer should allege that the adulteries of the plaintiff were committed without the procurement, connivance, privity, or consent of the defendant (ib.)

a. In an action for a divorce, an answer setting up the adultery of the plaintiff as a defense need not allege either that the parties were inhabitants of this State at the time of the commission of the offense, nor that the defendant at that time, and at the commencement of the action, was an actual inhabitant of this State (Lesener v. Lesener, 31 Barb. 330).

b. In an action by a wife for a limited divorce, the defendant set up as a separate defense, that, at the time of his alleged marriage with the plaintiff, she had a husband living, and that such husband was still living and demanded a divorce on that ground; the referee found that at the time of the alleged marriage of plaintiff and defendant, she had a husband living and refused to grant a divorce to either party, and directed a judgment dismissing the complaint without costs, on appeal, this was held right (Linden v. Linden, 36 Barb. 61).

c. In an action by a husband for a divorce, on the ground of adultery, the defendant alleged in her answer that the plaintiff, in February and March, 1867, at the cities of New York and Brooklyn, committed adultery, and thereby contracted a venereal disease which he communicated to her in March, 1867, -held the allegations in the answer were sufficiently specific and that the adultery of the plaintiff was well pleaded (Clark v. Clark, 7 Rob. 276).

d. To a complaint for a divorce, by a wife against her husband charging cruelty, the defendant may in his answer show the provocation given by the wife, and which led to the alleged act of cruelty (Decraismes v. Devraismes, 2 Code Rep. 124).

e. In an action for divorce, on the ground of adultery, defendant cannot interpose the defense of physical incapacity of plaintiff, where more than two years have expired since the marriage without any action for a dissolution on that ground (Griffin v. Griffin, 23 How. 183).

f. In an action for a divorce, for adultery, an answer of adultery on the part of the plaintiff is a complete defense and ground for affirmative relief to defendant (Hoffman, Referee, Anon. 17 Abb. 48).

g. In an action, by a husband against his wife for a divorce on the ground of adultery, the defendant cannot set up by way of counter-claim the cruel and inhuman treatment of the plaintiff (Diddell v. Diddell, 3 Abb. 167; Griffin v. Griffin, 23 How. 183; R. F. H. v. S. H. 40 Barb. 9); and so, in an action for a limited divorce, the defendant cannot set up as a defense or counter-claim the adultery of the plaintiff (Henry v. Henry, 3 Rob. 614; 27 How. 5; see McNamara v. McNamara, 9 Abb. 18; McIntosh v. McIntosh, 12 How. 289).

h. See Cook v. Cook, 53 Barb. 180, as to defense of insanity in an action for a divorce.

i. In an action for divorce on the ground of adultery, the defendant was allowed to amend or file a supplemental answer, by setting up the fact of adultery by the plaintiff, occurring after issue joined (Strong v. Strong, 28 How. 432; 3 Rob. 669; see Smith v. Smith, 4 Paige, 432).

RULE 90.-Questioning legitimacy of children.

On a complaint filed by a husband for a divorce, if he wishes to question the legitimacy of any of the children of his wife, the allegation that they are or that he believes them to be illegitimate, shall be distinctly made in the complaint. If a reference is ordered, proofs shall be taken upon the question of legitimacy, as

well as upon the other matters stated in the complaint; and, if the issue is tried by a jury, an issue on the question of legitimacy of the children shall be awarded and tried at the same time.

RULE 91.-Sentence of nullity or decree for divorce by default. Pleadings or testimony not to be published. Judgment for divorce.

No sentence or decree of nullity declaring void a marriage contract, or decree for a divorce, or for a separation or limited divorce, shall be made of course by the default of the defendant, or in consequence of any neglect to appear at the hearing of the cause, or by consent. And every such cause shall be heard after the trial of the issue, or upon the coming in of the proofs, at a special term of the court; but, where no person appears on the part of the defendants, the details in the evidence in adultery causes shall not be read in public, but shall be submitted in open court. No officer of this court, with whom the proceedings in an adultery cause are filed, or before whom the testimony is taken, nor any clerk of such officer, either before or after the termination of the suit, shall permit a copy of any of the pleadings or testimony, or of the substance of the details thereof, to be taken by any other person than a party, or the attorney or counsel of a party, who has appeared in the cause, without a special order of the court.

No judgment in an action for divorce shall be entered except upon the special direction of the court.

a. The court will not grant a decree for divorce, upon a complaint to which no answer has been interposed, until after an inspection of the complaint, proof, and the affidavit of service of the summons (Robinson v. Robinson, 1 Barb. 27). See in note to Rule 86.

RULE 92.-Receiver of debtor's estate. costs. May sell doubtful claims at auction.

When allowed his

Every receiver of the property and effects of the debtor shall, unless restricted by the special order of the court, have general power and authority to sue for and collect all the debts, demands, and rents belonging to such debtor, and to compromise and settle such as are unsafe and of a doubtful character. He may also sue in the name of a debtor, where it is necessary or proper for him to do so; and he may apply for and obtain an order of course that the tenants of any real estate belonging to the debtor, or of which he is entitled to the rents and profits, attorn to such receiver, and pay their rents to him. He shall also be permitted to make leases, from time to time, as may be necessary, for terms not exceeding one year. And it shall be his duty, without any unreasonable delay, to convert all the personal estate and effects into money; but he shall not sell any real estate of the debtor, without

the special order of the court, until after judgment in the cause. He is not to be allowed for the costs of any suit brought by him against an insolvent from whom he is unable to collect his costs, unless such suit is brought by order of the court, or by the consent of all persons interested in the funds in his hands. But he may, by leave of the court, sell such desperate debts, and all other doubtful claims to personal property, at public auction, giving at least ten days' public notice of the time and place of such sale.

See note to § 244, ante.

RULE 93.-Suits pending. Cases not provided for. When rules take effect.

All actions depending on the first day of July, 1848, may be conducted according to the rules of the supreme court adopted in July, 1847, so far as the same are applicable.

In cases where no provision is made by statute, or by these rules, the proceedings shall be according to the customary practice, as it has heretofore existed, in the court of chancery and supreme court in cases not provided for by statute or the written rules of the court.

These rules shall take effect on the first day of October, 1858.

ANNUITY TABLE.

A TABLE corresponding with the Northampton Tables referred to in the 84th Rule of the Supreme Court, showing the value of an annuity of one dollar, at six per cent., on a single life, at any age from one year to ninety-four, inclusive:

RULE FOR COMPUTING THE VALUE OF THE LIFE ESTATE OR ANNUITY.

Calculate the interest at six per cent. for one year, upon the sum to the income of which the person is entitled. Multiply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the lifeestate of such person in said sum.

EXAMPLES.

Suppose a widow's age is thirty-seven, and she is entitled to dower in real estate worth $350.75. One-third of this is $116.91. Interest on $116.91, one year at six per cent. (as fixed by the 84th rule), is $7.01. The number of years' purchase which an annuity of $1.00 is worth at the age of thirty-seven, as appears by the table, is eleven years and 3 parts of a year, which multiplied by 7.01, the income for one year, gives $77.35 and a fraction, as the gross value of her right of dower.

1000

Suppose a man whose age is fifty, is tenant by the courtesy in the whole of an estate worth $9,000. The annual interest on the sum at six per cent. is $540. The number of years' purchase which an annuity of one dollar is worth at the age of fifty, as per table, is 94 parts of a year, which multiplied by 540, the value of one year, gives $5,085.18 as the gross value of his life-estate in the premises or the proceeds thereof.

Note. The values in this table are calculated on the supposition that the annuities are payable yearly; if payable half-yearly, one-fifth of a year's purchase should be added to those values.

See Jackson v. Edwards, 7 Paige, 408, as to computation of dower right.

SUPREME COURT, GENERAL TERM.

NEW YORK, April 14th, 1856.

Rules in Regard to Moneys Awarded to Unknown Owners.

1. Whenever any person shall claim any money awarded to unknown owners on the opening, widening, altering, improving, or laying out of any street, avenue, square, or public place, he shall cause notice of his intention to apply to the court for such moneys to be published in one of the daily newspapers in this city, at least once a week for four weeks; and shall serve notice of such intention on the mayor of the city, and the counsel to the corporation of the city, at least fourteen days before such application. The court at special term, or the judge at chambers may hear the application, and may hear the proofs or refer the matter