
    THE STATE v. F. D. SCHLACHTER and LOUISA WITLE.
    Where a marriage has been solemnized according to the laws of another one of the United States, between persons free to marry according to such laws, and the parties afterwards for several years conduct themselves as husband and wife, having children, &c., it seems that an indictment for fornication and adultery is not the proper method of testing the validity of such marriage.
    A couple domiciled in New York intermarried there in 1856 and subsequently (before 1861) removed to North Carolina; in January 1864 the wife removed again to New York, in December 1864 obtained a divorce, and in January 1866 re-married (both acts being in accordance with the laws of New York); afterwards she returned to North Carolina with her second husband, and they lived together as man and wife, Held that there is nothing in the doctrines of Irby v. Wilson, 1 D. & B., 568, to impeach .-such divorce and second marriage, and that.it seems that that marriage, ■being in accordance with the laws of the State where it was solemnized, cannot be impeached in the courts of another State.
    
      (Irby v. Wilson, supra, cited and remarked upon.)
    Fornication and Adultery, tried upon a case agreed, before Green J., at September Term 1867 of the Criminal Court of Craven.
    In 1856 the feme defendant was duly married to one Argos Witle, in New York, and with her husband subsequently removed to North Carolina. They lived together until January 1861, when he entered the military service of the Confederate States, and went to Virginia. In 1863 he deserted that service and returned to Newbern, but did not cohabit with his wife. In January 1861 she “ moved” to the State of New York, and subsequently filed a petition for divorce there, alleging as ground for it the adultery of her husband. He was then in the military service of the United States at Newbern, and was brought into court in the divorce proceedings, by publication according to the laws of New York. On the 23d of December 1864, a decree for divorce was given and on the 9th day of January 1865 she in due form remarried with the other defendant, in New York. Since then they have lived together, having two children, &c., in Newbern, North Carolina.
    Upon these facts his Honor was of opinion that the defendants were guilty, and fined each of them ten dollars.
    
    The defendants thereupon appealed.
    
      Manly & Haughton, and Hughes, for the appellants.
    The domicil of the wife is not that of the husband where it is necessary to assert an adversary interest. Story Confl. 229, a note 2; Irbyv. Wilson, 1 D. & B. Eq., 581; Schonwald v. Schomuald, 2 Jon. Eq., 369.
    Here the feme’s domicil in Dec. 1864 and Jan. 1865 was in N. Y., therefore she and her marital relations were ■ subject to the laws of that State. Story Confl., s. 89; 3 John., ch. 210; 2 Bish. Mar. and Div., 115.
    The marriage being valid by the lex loci is valid everywhere. Story Confl., ss. 80 & 80a, 113 & notes, & 121-123b; West Cambridge v. Lexington, 1 Pick., 596; Fergus. Mar. & Div., 269 n. R; 1 Bish. M. & D., 333.
    If Schlachter thought the feme defendant was his wife, he committed no crime, 2 Bish. Cr. L., ss. 22 &23; 2 Black. 318; 1 Bish. Cr. L., ss. 367-371, 378, 383.
    
      Atto. Gen., contra.
    
    In an indictment involving the validity of a marriage, the decree of a foreign court may be collaterally impeached. Story Confl., ss. 217, 218; S. v. Patterson, 2 Ire., 356; Duches of Kingston’s case, 11 State Trials, 262.
    
      Upon the other points in the case he cited Irby v. Wilson, supra, as confirmed 7 Watts 349 & Í5 Johns., 131; 2 Kent, 96, 106-108, 228, 344; Story Confl., pp. 196, 198,327, 343, &c; Bish. M. & D., 121-3.
   Pearson C. J.

To support the ruling of his Honor in the court below, it was necessary for the Attorney General to maintain the position that the decree of the Superior Court of the State of New York, by which the defendant Louisa was divorced from her former husband Argos Witle, can be treated by the courts of this State as a proceeding void and of no effect not only so far as the rights and liabilities of the said Louisa and Argos Witle are concerned but also as against the other defendant, Schlachter; because, in an indictment for fornication and adultery, both of the parties must be guilty, or the offence is not proved. In other words this court must decide that the decree of the Superior Court of the State of New York is a nullity, in order to support the judgment appealed from.

Irby v. Wilson, 1 Dev. & Bat. Eq., 568, is relied on by the Attorney General to maintain this position. The ruling in that case has been objected to, on the ground that, if the guilty party by a change of domicile can render personal service of process impossible, and there is no way by which personal service can be dispensed with, as by a return of “non est inventus” to the process followed by advertisement in the newspapers or otherwise, the effect would be to take from the party injured all means of redress.

To this may be added another objection. Mrs. Jones alias Mrs. Irby was not by the action of the court considered as estopped, that is, as having “her mouth shut,” but was allowed to allege in the face of a solemn deed executed in due form of law, to-wit, ceremony of marriage, that she was guilty of a capital felony — bigamy, for which, according to the ruling in the case, she ought to have been hung.

We are not however called upon to discuss the objections which have been made to that decision; for our case does not come within the application of the decision, supposing it to fix the law. The facts are different in several material particulars.

In that case the first marriage was in the State of South Carolina, where by laio the marriage relation was indissoluble/ the divorce was in the State of Tennessee according to the laws of that State, and the case was decided in the State of North Carolina.

In our case, the first marriage was in the State of New York, where by law the marriage relation may be dissolved by divorce and a ’decree of divorce may be declared although personal service of process be not made; after due advertisement a decree of divorce was duly rendered in the State of New York, in accordance with the laws of that State. The second marriage was duly solemnized in the State of New York. So instead of a marriage in one State, where divorce is not allowed, and a divorce in another State, and the second marriage called in question in a third State, we have a marriage, a divorce and a second marriage, all, effected in the same State, and, in conformity to the laws of that Stat e

The concession made in the opinion delivered in Irby v. Wilson, covers our case, and relieves us from the necessity of making an issue. It is therein conceded that the divorce was valid in the State in which it was made; but it was ruled that the divorce was a nullity in every other State.

Assume, as is done in Irby v. Wilson, that the divorce was. valid in the State of New York, it follows that the second marriage was valid in the State of New York, being solemnized in the manner required by the laws of that State, and it further follows, as it seems to us, that its validity cannot be drawn in question by the courts of any other State.

When the case was called, the idea of trying the validity of a marriage upon an indictment for fornication and adultery, struck us as novel. We are not called on to decide the point, but we must be permitted to say that when there has been a marriage between the parties solemnized in the manner required by the laws of a sister State, we should be slow to allow it to be impeached in this collateral manner, for the result of the indictment establishes nothing. The marriage is not decreed to be of no force or effect; the parties are not relieved from the bonds of matrimony, or allowed to live separately as if divorced from bed and board; and, in regard to the status of the children, nothing is decided; and the -amount of it is, that the parties áre admonished by a fine of ten dollars each, to take such proceedings as may be necessary and proper to establish their marriage or else have it declared void by a decree of nullity of marriage.

This proceeding will do very well when the marriage is a mere sham, and the parties are merely pretending to be “husband and wife,” to evade the law; but as soon as it appeared that there had been a marriage celebrated in due form of law and the parties had lived together as man and wife for several years and had two children — taking into consideration that a judgment against the parties would fix nothing, but would cause much uncertainty and anxiefy, and throw doubt upon the legitimacy of the children, we are inclined to think it would have been as well to enter a nolle prosequi and allow the validity of the marriage to be drawn in question by some more grave proceeding.

Judgment reversed. This will be certified, &c.

Per Coriam. Judgment reversed; New Trial.  