Pomeroy v. Pomeroy

1 Johns. Ch. 606, 1815 N.Y. LEXIS 210, 1815 N.Y. Misc. LEXIS 46

Opinion

The Chancellor

said, that if the bill had gone only for a divorce from bed and hoard, and for cruel usage, the statute referred to would have applied, and the defendant would have been entitled to such security. But though the bill had such a charge, it contained, also, a charge of adultery; and he doubted whether both charges could be contained in the same bill, since the one charge required an answer on oath, and the other did not, and since a confession of the one charge was conclusive, but not as to the other, and as the decrees were essentially different in the two cases. At any rate, he should look, for the purpose of this motion, to the weightier charge of adultery; and the defendant was not entitled to security for costs in such a case, unless, perhaps, under some extraordinary circumstances. The statute did not apply to such a bill as this, but only to a hill simply for a divorce from bed and board. If security be taken, it must be for the costs of the suit at large, and could not be taken for a distinct ingredient in the bill.

Motion denied.