dissenting.
The statute on which the court below refused the decree in this case is not a mere statute of limitations. It enters into and is a substantive part of the right or cause of action, and the party seeking the relief for which it provides, must affirmatively establish, before the decree of divorce can be granted, that the action was brought within the two years specified by the statute. The action is the creature of statute. No such action existed at common law, and it is made a condition of the right to maintain the action, that it should be brought within a prescribed time. When it appears affirmatively that the suit was not commenced within the prescribed time, the court has no jurisdiction to pronounce a decree dissolving the marriage relation. This has always been the construction given to the statute by the rules and practice of the Court of Chancery and of this court, and by the decisions. A similar rule prevails as to actions for divorce for adultery. The' statute is based upon grounds and reasons in no sense analogous to those on which ordinary limitations rest.
The court below was, in my judgment, entirely right in denying the relief, and the order ought to be affirmed. Nor should the decree sought for have been granted on the evidence of the plaintiff. Without her testimony no case was established. Proof of incapacity should have been made by other witnesses. I therefore dissent from the conclusion of my brethren.
Order reversed ; case sent back for further consideration.