Edwards v. . Edwards

61 N.C. 534

• Court: Supreme Court of North Carolina
• Decided: January 5, 1868
• Status: Published

Opinion

Pearson, C. J.

It is a maxim in courts of equity, that “ a party must come in with clean hands,” and probably it would be good policy to require one who files a petition for a divorce, to purge his conscience in the manner indicated by his Honor. It certainly would prevent a great many applications.

But the subject of divorce is regulated by statute, Rev. Code, ch., 39, “ Divorce and Alimony,” and there is nothing in the statute to authorize a construction, which would empower the court to impose a “ test oath ” of this kind. On the contrary, the fifth section, which declares what matter shall be set out in the petition is silent as to an averment of this kind, and the tenth section provides that, if such matter shall he proved, “ the same shall be a good defence, and a perpetual bar against the suit,” thus ekpressly making it a matter oí defence, and no where intimating that the party shall take an oath of his own innocence as a condition precedent to the right of instituting the suit.

Order in the court below reversed. This will be certified.

Per CuRiAir. Order reversed.