Page:The Granite Monthly Volume 5.djvu/181

 PRACTICE. 157

6. The statute requires that every hbel for divorce must be signed by the Hbellant, if of sane mind, and above the age of consent, otherwise by the parent, guardian or next friend. This is simply a practice statute. It made no change either in the law or the practice, and as a consequence counsel can- not sign a libel for divorce, " A. B., by her atly., C. D.," as he can in a great variety of other cases. He may however write the name of the libellant in his or her presence and by his or her direction. If it were otherwise those who are blind, who could not write, or who had no arms or hands, might never be able to get a divorce. The history of this practice is very simple when un- derstood.

Until 1784, there never was any statute authorizing a divorce. All divorces were granted by the legislature upon the theory of parliamentary omnipotence, subject of course to the negative of the king and council. Divorces were obtained upon a petition to the legislature. More strictness was required in those petitions in early days than now. The petitioners 9II had to sign their names or make their mark or direct some other person in their presence to sign their names, and as a rule people petitioners always signed their own r^ames. These petitioners were heard by committee. The committee heard the parties and their witnesses in person or upon affidavit as the committee saw fit. Husband and wife could testify against each other before these commit- tees, when they could not in any other matters, because all petitioners could testify in their own behalf before legislative committees. The constitution of 1784 transferred this jurisdiction as it stood bodily to the highest court, until the legislature should see fit to change it. The result of course was that hus- bands and wives testified against each other in person before that court or fur- nished their affidavits just as they did before the committee. The result of this was that in a large share of the cases until 1836, divorces were granted in the superior court upon affidavits. These affidavits were not unfrequently drawn up by the parties themselves or Justices of the Peace instead of being drawn up by counsel.

This practice culminated in the famous case of Poor v. Poor, 8 N. H., 307, decided at the December term, 1836, for Rockingham county. Her affidavit in that case was drawn up by the wife herself as the opinion shows. The abuse of the practice was stopped by the rules of court providing that parties must be heard upon depositions atone. This practice was again so abused by parties and counsel that the legislature at last interfered. In one case, between four and five thousand pages of testimony vvere taken. The court, Judge Perley at the head, refused to examine the evidence, and appointed the present Judge Carpenter a master to hear and decide the cause.

This practice became enormously expensive. I framed a bill transferring these causes to the trial term, providing that the parties might be heard orally or by depositions, or both, and giving the court power to bring the parties and their witnesses before the presiding judge. Judges Doe and Jere. Smith, Mr. Ramsdell, Judges Sargent and Perley, rendered their efficient aid in carrying it through the House. With the aid of Judge Perley I got it through the Senate by the skin of its teeth ; and this is the foundation of the present practice.

The court had no power to issue injunctions in early days. That came in vogue after 1832. More recently attachments have been authorized in divorce as well as in equity suits. A great deal of diversity and uncertainty arose under this act, but the practice is now understood to be settled. The counsel for the plaintiff takes an ordinary blank writ, fills up the mandate with such sum as he thinks proper, inserts that the defendant be required to answer in a libel for divorce, filed by the libellant on such a date against the libellee, returnable at the term specified therein, puts it into the hands of an officer

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