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Colonial Cases

Nesbit v. Nesbit, 1888


Nesbit v. Nesbit

United States Consular Court, Shanghai
Kennedy, 17 October 1888
Source: North China Herald, 19 October 1888

Shanghai, 17th Oct., 1888
Before General J. D. Kennedy, U.S. Consul-General, Acting Judicially, and Capt. Friend and J. W. Bennett, Associates.
  This was an application by Ada L. Nesbit for a divorce from her husband, Francis Nesbit, described as a theatrical agent and professionally known as Frank Weston.
  There was no appearance for the respondent, and proceedings were merely formal.
  The petitioner was sworn and deposed:- I was married on the 16th August, 1886, to the respondent, Frank Nesbit, professionally known as Frank Weston, in this Consulate.  He was agent for the Remenyi Concert Co.  After the marriage I stayed in Shanghai about three weeks; from there we went to Foochow and Hongkong, thence to Manila.  While in Manila the respondent paid for my living for the first two months, but after that he had no money and I paid my own way.  When I asked him for money he said he had none to give me and told me to go away.  It was through friends of my own that I got means to leave Manila.  That is now about two years ago.  I have not heard anything about him since.  Nearly eighteen months elapsed before I filed the petition, and I have since supported myself.  I have not heard anything more about him since except that he passed through Hongkong.
  In reply to the Bench the petitioner stated that efforts had been made to find her husband, and the notice was duly published in the North china Herald.
  His Honour - How did you act towards him from the time you were married in August till November? Were you a good and true wife to him, and gave him no cause to tell you to leave him?
  Petitioner - I was.  I did not.
  And you did not assent to his leaving you? - No, but he had no means of keeping me and told me so.
  He never gave you anything after you were married? - No, not after the first two months.
  You make no application for alimony for your support? - No, it is no use; he has not got anything.
  Mr. Geo. Shufeldt, clerk of the Court, was then sworn and gave corroborative evidence of the marriage, which was solemnised in the Consulate General, before the U.S. Consul General.  He also stated that efforts had been made to serve the notice of the petition upon the respondent who could not be found.  The necessary papers were sent to the U.S. Consul in Australia, but they were returned with an endorsement by the Consular clerk to the effect that the man could not be found, and that it was supposed he had gone to South Africa.  The notice had also been advertised for the usual time in the North China Herald.
  The petitioner, in reply to the Court, said she wished to resume the name of Jennie Grant.
  His Honour said that he marriage and the other facts having been duly proved, the decision of the Court was that the marriage be annulled, the petitioner to resume the name she wished.  He would make a written decree tomorrow.
18th Oct.
His Honour gave the written decree today, as follows:-
  Petitioner makes application for divorce from her husband Francis Nesbit, alias Frank Weston.  The action was begun the 26th day of April, 1888.  The Marshal reported that defendant was not within the jurisdiction of the Court.  Thereupon a summons was duly published in the North China Herald for the period prescribed by our Court regulations for absent defendants, and a copy of said summons together with the petitioner's Petition and an order to answer in accordance with same, were forwarded to the Consul of the United States at Melbourne, the last place where respondent was known to have been.
The papers have been returned endorsed "Defendant cannot be found, supposed to have left for South Africa."
  The allegation of the petitioner on which she seeks a petition, is desertion.  In divorce law desertion is defined as "the voluntary separation of one of the married parties from the other or the voluntary refusal to renew a suspended cohabitation without justification, either in the consent or the wrongful conduct of the other."  The facts as adduced in evidence fit this description.
  Respondent told plaintiff that he was unable to support her. He had not supported her since two months from the date of their marriage.  He told her to leave him.  He failed to make any provision for her, nor has he communicated with her since the day he forced her to leave him, nor does it appear that he has taken any steps to renew their married life. All the circumstances of the case corroborate he allegation of desertion.
 The two well recognized elements that must enter into every case of desertion are found in this, to wit, "cessation of cohabitation and an intent in the accused party to desert the other."
  The only difficulty under which petitioner labours is the fact that she is the only witness, and ordinarily under the Common Law would not be permitted to testify but not only is the Common Law embraced in the Ecclesiastical Law of England under which the Court assumes jurisdiction of divorce cases, give latitude and discretion but Bishop in his exhaustive treatise "On Marriage and Divorce" and Wharton in his "Law of Evidence" sanction the usage and propriety of so doing.
  There must however be corroborating circumstances in addition, and these are sufficiently plain here.  The case is made out sufficiently to warrant the dissolution of the matrimonial bond between the parties.  It is therefore ordered, adjudged and decreed that the marriage solemnised between Ada L. Nesbit and Francis Nesbit, alias Frank Weston, on the 16th day of August, 1886, be and the same is hereby dissolved and declared henceforth and for ever null and void, and the petitioner be permitted to assume the name she bore prior to her said marriage.
  J. D. KENNEDY, Consul General, Acting Judicially.
  We concur in this judgment, A. T. Friend, J. W. Bennett, Associates.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School