(4.) Of divorce a mensa et thoro.

The statute of New York (a) authorized the court of chancery to allow qualified divorces a mensa et thoro founded on the complaint of the wife, of cruel and inhuman treatment, or such conduct as renders it unsafe and improper for her to cohabit with her husband; or for wilful desertion of her, and refusal or neglect to provide for her. The court may decree a separation from bed and board forever, or for a limited time, in its discretion, and the decree may be revoked at any time by the same court by which it was pronounced, under such regulations and restrictions as the court may impose, upon the joint application of the parties, and upon their producing satisfactory evidence of their reconciliation. (b)

To entitle the court to sustain such a suit, (1.) the parties must be inhabitants of the state; (2.) or the marriage must have taken place in the state, and the wife must be an actual resident at the time of exhibiting the complaint; (3.) or the parties must have been inhabitants of the state at least one year, and the wife an actual resident at the time of filing the bill. (c)

These qualified divorces are allowed by the laws of almost all countries, and it is assumed that they prevail generally in the United States, in cases of extreme cruelty, though they are unknown in some of them, as for instance in New Hampshire, Connecticut, Ohio, Indiana, and South Carolina. (d) In Eng

Casey v. Harrison, 2 Dev. N. C. Rep. 244. Ch. J. Gibson, in Ralph v. Brown, 3 Watts & Serg. 399, assumes that such a plea in such a case would be good. In the case of torts or joints contracts, a plea in abatement of another action pending for the same cause, against a co-trespasser or joint contractor, is bad. There may be several recoveries, but only one satisfaction. Henry v. Goldney, 15 M. & W. Rep. 494.1 (a) N. Y. Revised Statutes, vol. ii. p. 146.

(b) N. Y. Revised Statutes, vol. ii. pp. 146, 147, sec. 50, 51, 56.

(c) Ibid. 146, sec. 50.

(d) In Louisiana, the divorce a mensa leads to the divorce a vinculo, if the parties be not reconciled in two years. Savoie v. Ignogoso, 7 Louis. Rep. 281; and in Vir

1 The plea of lis pendens in a state court or in a foreign court is not a good plea in abatement of a suit in personam in the Circuit Court. White v. Whitman, 1 Curtis, C. C. 494. Lyman v. Brown, 2 Curtis, C. C. 559. But see Earl v. Raymond, 4 McLean, 233. Nor is a suit in a court of another state. McJilton v. Love, 13 Ill, 486. Drake v. Brander, 8 Tex. 351.

land, they are allowed only propter sævitiam aut adulterium; and where there is a separation for such a cause, 126 if the parties come together again, the same cause cannot be revived. (a)

In determining what is sævitia, by the ecclesiastical law, we find it stated in Evans v. Evans, (b) that it is necessary there should be a reasonable apprehension of bodily hurt. The court keeps the rule very strict. The causes must be grave and weighty, and show such a state of personal danger as that the duties of the married life cannot be discharged. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to that cruelty against

ginia in seven years; act of 1841. In Massachusetts, divorces from bed and board are allowed for causes of extreme cruelty in either party, and in favor of the wife when the husband shall utterly desert her, or grossly or wantonly and cruelly refuse or neglect to provide (if able) suitable maintenance for her. Mass. Revised Statutes, 1836.1 In Vermont, New Jersey, Kentucky, Mississippi, Tennessee, Alabama, and Michigan, divorce a mensa et thoro may be granted for extreme cruelty, and in some of those states for wilful desertion for two years. Act of Michigan, April 4th, 1833. Lockridge v. Lockridge, 3 Dana's Ken. Rep. 28. Holmes v. Holmes, Walker's Miss. Rep. 474. Elmer's Digest, 140. Laws of Vermont, p. 364. 4 Aiken's Ala. Dig. 2d edit. 131. Statute Laws of Tennessee, 1836, p. 261. In the Dutch law, and in Scotland, wilful abandonment of either party without due causes for a long time, is ground for a decree of divorce. Van Leeuwen's Roman-Dutch Law, 85. Ersk. Inst. b. 1, tit. 6, sec. 20. Divorces from bed and board were unknown to the ancient church, and were first established by the decrees of the council of Trent.

(a) Lord Eldon, 11 Vesey, 532. Cohabitation is not always a condonation for cruelty on the part of the husband under gross circumstances. Snow v. Snow, Consistory Court, London, Hil. 1842. Jurist, No. 6.2

(b) 1 Haggard's Consist. Rep. 35.

By c. 228 of the laws of 1857, it is enacted in Massachusetts that when parties have lived apart for five consecutive years after a divorce a mensa, a divorce a vinculo may be granted upon the petition of the party at whose instance the former divorce was decreed; and after a separation of ten years, such a divorce may be granted, under certain conditions, on the petition of either party.

In Connecticut, divorces a vinculo may be decreed for wilful, continued, and obstinate desertion for three years; (Laws, Conn. 1856, c. 143,) and in Massachusetts after five years. (Laws, Mass. 1857, c. 228.)

* Condonation of cruelty will be construed favorably to the wife. Bowic v. Bowic, 3 Maryl. Ch. 51. Reese v. Reese, 23 Ala. 785. Gardner v. Gardner, 2 Gray, 434. And to support her right to cancel her condonation, it is not necessary that the same injuries be repeated. Langdon v. Langdon, 25 Verm. 678.

which the law can relieve.1

The wife must disarm such a dis

position in the husband by the weapons of kindness. (a)

This being the rule of the English courts, it would appear that divorces a mensa are placed, by the statute of New York, on rather broader ground. They are not only for cruelty, but generally for such conduct on the part of the husband towards his wife as renders it unsafe and improper for her to cohabit with him, and be under his dominion and control. Probably the word unsafe, in our statute, may mean the same thing as the reasonable apprehension of bodily hurt in the English cases. (b) It was considered, in the case of Barrere v. Barrere, (c) that the danger or injury must be serious, and the slightest assault or touch in anger was not, in ordinary cases, sufficient. It was likewise held, in that case, that the separa

tion need not be declared to be for any specific time, but 127 may be left general and indefinite, with liberty to the

parties to be reconciled when they please, and to apply to be discharged from the decree. The decree of divorce is always, by the canon law, sub spe reconciliationis. (d)

The statute above referred to seems to have considered the wife as the only infirm party who stands in need of such protection, for it confines the divorce a mensa for cruelty, desertion, or other improper conduct, to such conduct in the husband; (e)

(a) 1 Ibid. 364, 409. 2 Ibid. p. 148. Neeld v. Neeld, 4 Haggard's Eccl. Rep. 363. Pothier, Traité du Contrat de Mariage, sec. 509. 2 Mass. Rep. 150. 3 Ibid. 321, note. 4 Ibid. 587. Finley v. Finley, 9 Dana's Rep. 52. But it is cruelty, in judgment of law, if the wilful conduct of the husband exposes the wife to bodily hazard and intolerable hardship. D'Aguilar v. D'Aguilar, 1 Haggard's Eccl. Rep.

773.

(b) It has been so understood in Mason v. Mason, 1 Edw. Ch. Rep. 292. (c) 4 Johns. Ch. Rep. 187.

(d) Burns's Eccl. Law, tit. Marriage, ch. 11, sec. 4. Oughton's Ordo Jud. tit. 215, sec. 3. Bynk. Q. Jur. Priv. b. 2, ch. 8.

(e) Van Veghten v. Van Veghten, 4 Johns. Ch. Rep. 501. By a statute of New York, of April 10th, 1824, ch. 205, sec. 12, the court of chancery was authorized to decree a divorce a mensa, on the complaint of the husband, and that provision is

'Shaw v. Shaw, 17 Conn. R. 189. In this case the subject of cruelty is extensively examined. See a case in the House of Lords, Paterson v. Paterson, 12 E. L. & Eq. R. 19. David v. David, 27 Ala. 222. Sheffield v. Sheffield, 8 Tex. 79. Wright v. Wright, 6 Tex. 3. Shell v. Shell, 2 Sneed, 716. C v. C 28 E. L. & Eq. 603.

but the English ecclesiastical law makes no such distinction, and divorces are granted, on a bill by the husband, for cruel usage by the wife. (a) Upon these separations from bed and board, the children that the wife has during the separation, are bastards, for due obedience to the decree is to be presumed, unless the contrary be shown. (b) If, however, cohabitation between the husband and wife existed, the presumption of illegitimacy is destroyed. This is the general law; and when the New York Revised Statutes (c) declared that a child begotten and born during the separation of its mother from her husband, pursuant to a divorce a mensa et thoro, shall be deemed a bastard, it is to be taken, as I apprehend, subject to the same qualifications which accompanied the general rule.

*

These qualified divorces are regarded as rather hazardous to the morals of the parties. In the language of English courts, it is throwing the parties back upon society, in *the undefined and dangerous characters of a wife with- 128 out a husband, and a husband without a wife. The ecclesiastical law has manifested great solicitude on this subject, by requiring, in every degree of separation, an express monition to the parties "to live chastely and continently, and not during each other's life contract matrimony with any other person;" and security was formerly required from the party suing for the divorce, to obey the mandate. (d) The statute allows the husband, on such a bill by the wife, for ill-conduct, to show, in his defence, and in bar of the suit, a just provocation in the ill-behavior of the wife, and this would have been a

deemed to be in force, notwithstanding the subsequent general provision in the revised laws, confining that remedy to the wife.1 Perry v. Perry, 2 Paige's Rep. 501. (a) Kirkman v. Kirkman, 1 Haggard's Consist. Rep. 409.

(b) St. George v. St. Margaret, 1 Salk. 123.

(e) Vol. i. p. 641.

(d) Burns's Eccl. Law, tit. Marriage, ch. 11, sec. 4. Barrere v. Barrere, 4 Johns. Ch. Rep. 196, 198. Van Veghten v. Van Veghten, ibid. 501.

1 A single act of violence is not sufficient. It must appear that the husband will not be able to protect himself and family. Perry v. Perry, 1 Barb. Ch. R. 516. In Pennsylvania, a divorce may be granted, on the petition of the husband, "when the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable or life burdensome." (Penn. Laws, 1854, May 8.)

And on

good defence, even without the aid of the statute. (a) these separations from bed and board, the courts intrusted with the jurisdiction of the subject will make suitable provision for the support of the wife and children, out of the husband's estate, and enforce the decree by sequestration; and the chancellor in New York may exercise his discretion in the disposition of the infant children, and vary or annul the same from time to time, as circumstances may require. (b)' I apprehend there is not, in the United States, any essential difference in principle, or departure from the doctrines of the English law on the subject of divorces a mensa et thoro. (c)

(a) New York Revised Statutes, vol. ii. p. 147, sec. 53. Waring v. Waring, Haggard's Consist. Rep. 154.

(b) New York Revised Statutes, vol. ii. p. 147, sec. 54, 55. Ibid. 148, sec. 59, 60. Barrere v. Barrere, 4 Johns. Ch. Rep. 197. In Shelford on Marriage and Divorce, pp. 592-607, the cases are collected on the exercise of the equitable and discretionary jurisdiction of the ecclesiastical courts, in awarding permanent alimony to the wife, on decrees of divorce a mensa et thoro. In an aggravated case a moiety of the husband's property has been given.

(c) Reeves's Domestic Relations, ch. 16. Thompson v. Thompson, 2 Dallas, 128. Warren v. Warren, 3 Mass. Rep. 321. Statutes of Delaware, 1832, ch. 144.

1 Ahrenfeldt v. Ahrenfeldt, 4 Sandf. Ch. 493. Battey v. Battey, 1 R. I. 212.