#### Levi A. Lincoln, plaintiff, *vs.*Abby Lincoln, defendant.

1. Where the defendant, in an action for an absolute divorce on the ground that the defendant was a married woman at the time the plaintiff married her, has appeared and answered, denying her previous marriage, such issue may be referred, with the consent of the.parties; but it should be a reference to *hear and determine*the issues, and not to take the proofs and report them to the court.

2. The latter species of reference is only proper when there is a default in answering.

3. Such irregularity would necessarily render the judgment irregular; but the irregularity may be waived by the appearance of the defendant before the referee without objecting.

*4.*An order of reference may be granted for the purpose of determining a disputed fact arising upon a motion.

5. It is erroneous to permit either party, in an action for a divorce, to testify on his or her own behalf. But if the examination of a party does not appear to relate to any material subject investigated by the referee, the error of admitting him or her as a witness furnishes no sufficient ground for refusing to confirm his report.

6. It is only when the decision of a referee is unsupported by evidence, or is palpably against the weight of evidence, that it will be disturbed.

7. The distinction between void and voidable marriages is clear. If the facts exist which render a marriage null *ab initio,*no decree dissolving the contract is necessary; although for the quiet and relief of- the parties, and the good order of society, such a decree is proper. It has therefore been made a ground of divorce, by statute. (2 *JR.*& 142, § 20, *sub.*2.)

(Before Monell, J., at Special Term,

November, 1866.)

Motion to set aside a judgment.

This action was brought for an absolute divorce, on the ground that the defendant was a married woman at the time the plaintiff married her. The allegation of such marriage was denied by the defendant. The issues were referred by the consent of both parties to a referee, who was ordered to take the evidence and to report the same to the court, with his opinion thereon. Both parties appeared before the referee, but before all the testimony was taken, the defendant procured an order from the court, requiring the plaintiff to show cause why a commission should not issue to examine *526witnesses residing in 'Providence, R. I., The order also stayed the proceedings before the referee. The stay of proceedings was subsequently revoked upon the *ex parte*application of the plaintiff. The plaintiff then went before the referee, without notice'to the defendant, gave some additional evidence, and obtained a report that the facts alleged by the plaintiff were substantially proven; and the court thereupon entered judgment in favor of the plaintiff, dissolving the marriage. The defendant had no notice of any of these proceedings.

A motion was afterwards made to set aside the judgment and for leave to- the defendant to be let in to defend the action. Such motion was founded upon the alleged irregularity in the proceedings, and also upon the affidavit of the defendant, in which she stated that Read (to whom it was alleged she was married previous to her marriage with the plaintiff) had, at the time of her marriage with him, a living wife; which rendered her marriage with Read void; and that, therefore, her contract and marriage with the plaintiff was binding and lawful. Upon this motion an order was made referring it to a referee, to take proof and to report the same to the court, with his opinion thereon, whether William H. Read, mentioned in the complaint, at the time of his marriage with the defendant, had been previously married to one Sarah Wakefield, or any other woman; and whether said Read had a wife living at the time of his said marriage with the defendant; and whether such previous marriage was in force at the time of his said marriage with the defendant. Both parties appeared before the referee and produced witnesses, who were examined in respect to the questions referred. The plaintiff and defendant each offered himself and herself as a witness in his and her own behalf, and were received- by the referee, notwithstanding objection thereto. The referee reported the evidence to the court, with his opinion thereon, to the effect that said Read was, in October, 1855, married to one Sarah Wakefield; that the marriage between the defendant and Read took *527place in August, 1856; that Read had a wife living at the time of his marriage with the defendant, and that his marriage with Sarah Wakefield was previous to, and was in force at the time of, his marriage to the defendant.

The order of reference further directed that if it should appear from the referee’s report that Read had been previously married, and had a wife living at the time of his marriage with the defendant, then that the judgment theretofore entered, dissolving the marriage of the plaintiff and defendant, should be set aside and vacated.

The motion now is to confirm the report of the referee and to vacate the judgment.

*Edwin James*and *Thomas Dunphy,*for the defendant.

*W. R. Stafford,*for the plaintiff.

Monell, J.

The first order of reference was, I think, irregular. The defendant had appeared and answered, denying her previous marriage. Such issue could he referred with the consent of the parties-; but it should have been a reference to *hear and determine*the issues, and not to take the proofs and report them to the court. The latter species of reference is only proper when there is a default in answering. *(Rule*86.) Such irregularity would necessarily render the judgment irregular. But the irregularity may be waived by the appearance of the defendant before the referee without objecting. *(Renouil*v. *Harris,*2 *Sandf. S. C. R.*641.)

The second reference was to determine a disputed fact upon a motion, and was therefore proper and regular. *(Code,*§ 271, *sub.*3.) It was erroneous to permit the defendant to testify in her own behalf. She was objected to as incompetent, and under the decisions of *this court*she could not be examined. The referee appears to have regarded the judgment as restoring her competency. I do' not think it had such effect. The examination of witnesses *528before a referee was for the purpose of ascertaining whether such judgment was valid, or should be vacated; and its functions as a judgment were, therefore, suspended. But as the examination of the defendant does not appear to relate to any material subject investigated by the referee, he having excluded all of her evidence relative to the previous marriage of Bead, the error of admitting her as a witness furnishes no sufficient ground for refusing to confirm his report. It was equally erroneous to admit the plaintiff to be examined on his own behalf. His testimony was material upon the question of the identity of Bead. But as the defendant has hot excepted, the objection cannot now be taken.

I have examined the testimony taken by the referee, and the only doubt there can be is as to the *identity*of William H. Bead. The proof of the marriage of *a*William H. Bead with one Sarah Wakefield is conclusive. On the question of identity the evidence is conflicting. But there is no such preponderance against the conclusion of the referee as would authorize the court to withhold its confirmation of his report. It is only when the decision of a referee is unsupported by evidence, or is palpably against the weight of evidence, that it will be disturbed. *(Hoogland*v. Wight, 7 *Bosw.*394. *Woodruff*v. *McGrath,*32 *N. Y. Rep.*255.)

A further objection by the plaintiff to the confirmation of the referee’s report was, that until a judgment of a court of competent jurisdiction, annulling and declaring void her previous marriage with Bead, the defendant was not capable of contracting a legal marriage with the plaintiff. The distinction between void and voidable marriages is clear. If the facts exist which render a marriage null *ah initio,*no decree dissolving the contract is necessary. (1 *Bishop on Divorce,*§ 277.) Although for the quiet and relief of the parties, and the good order of society, such a decree is proper. *(Wightman*v. *Wightman,*4 *John. Ch.*343.) And *529it has therefore been made a ground of divorce by statute. (2 *R. S,*142, § 20, *sub.*2.)

Ho error having been committed by the referee, which can affect the conclusions to which he has arrived upon the evidence before him, his report must be confirmed, and the defendant let in to defend the action; for which purpose the first order of reference will be vacated and the cause restored to the calendar for trial, with liberty to either party to apply to the court to frame such issues, to be tried by a jury, as may be proper.

It having been represented to me that shortly after the judgment of divorce the plaintiff was again married, I shall, for the protection of-the rights of the second wife, who may have married the plaintiff in ignorance of such divorce, allow the judgment to stand, until the trial of the issues is had; when, if it shall appear that the defendant was under no disability when she contracted marriage with the plaintiff, the said judgment must be vacated and set aside; otherwise to remain in full force and effect.

So much of the motion as asks that the plaintiff be ordered to pay the referee’s fees and counsel fees, must be denied; without prejudice, however, to a renewal of such motion upon affidavits of the plaintiff’s ability to pay the same, and that no allowance for alimony or counsel fees has heretofore been made, or, if made, that the same are inadequate.

The order on this decision to be settled on five days’ notice to the plaintiff’s attorney.