By the Oourt,
Cole, J.
This was an application on the part of the appellee, for a divorce from the bond of matrimony. The ground of the application appears to be cruel and inhuman treatment by her husband, based upon subdivision 5, of section 9, chap. 79, B. 8.; and upon subdivision 3, section 10, of the same chapter, which latter provision is made a substantive cause of divorce, by section 11, whenever, in the opinion of the court, the circumstances of the case are such that it will be discreet and proper to grant it.
■ The appellee, in the bill of complaint, after unnecessarily detailing at some length her relations to the appellant for some two jmars before her marriage to him, giving publicity to events in their previous history, that, to say.the least, are quire im•pertinent to this issue, and which it would seem both parties ought to be equally interested in burying in oblivion, goes on [139]*139to specify certain instances of unkind, cruel and inhuman con" duct on the part of her husband. She represents in her bill of complaint that, soon after marriage, her husband began to use cruel and tantalizing language to her; to treat her roughly, boasting of having secured his property from her; and reminding her of the poverty of her parents, and of her own helplessness; and derisively asserting that their marriage was a spurious one and a sham; clandestinely taking her marriage certificate from her; and making no suitable provision for her support, and that of her child ; that he kept her scantily clothed ; that they had no well, cellar or rain cistern; nor a cupboard, bureau or shelf about the house; nor even a box into which she could put crockery or clothing, scanty as hers was; that the only cabinet furniture in the house was a few chairs, a candle stand, and table, which her husband said cost $3.50, and therefore would not permit her to do her ironing' upon it, because it would be injured; but compelled her to do most of such work upon a low water-pail bench, only about a foot high ; that her husband neither clothed her decently or comfortably; has never furnished her with a comfortable bed and furniture ; that they had ■but one thing called a bed in the house, and that a straw bed, with scanty covering; that she has been compelled to sleep on a straw bed very scantily supplied ever since they kept house; that she has been twice locked out of her house by him for two days; and that on one occasion she had the key to the house, and tried to prevail upon him to permit her to keep it, as he was going away, but that he would not, but wrenched it out of her hands with violence and anger; that he does not, but refuses, to supply her with suitable provisions, seldom allowing or furnishing her with milk for tea or coffee; that for three or four days at a time she had only musty bread made of musty flour or meal, with no meat or butter; for-the like period has .lived on such bread, with only salt and potatoes, and some pickled beets; that he has control of an abundance of wealth; and also refuses her the society of her parents, brothers and sisters.
The above constitute the material allegations of the bill, upon which a divorce must be granted, if granted at all.
To the bill, the appellant filed an answer, denying, under oath, its main allegations, and charging his wife with unkind [140]*140and unbecoming conduct towards him. A replication was put in; and on motion of the appellant, a feigned issue was ordered by the court to determine the question as to. whether the treatment of the complainant between the 9th day of March, 1851, and the 12th day of October, 1852, was cruel and inhuman. On the second trial, the jury found this issue in the affirmative, and thereupon the Circuit Court decreed a dissolution of the marriage contract between the parties.
Upon an examination of the record, it is found that but a small part of the testimony given on the trial below has been sent up to this court; but still, it was suggested by the counsel for the appellee, that we should presume that the finding of the jury was warranted by the evidence before them, and that it devolves upon the party assailing the decree here, to show that it was erroneous, and not supported by the evidence. Perhaps it is proper to remark, in answer to this suggestion, that the hearing of an appeal in this court is a review, by a distinct and superior tribunal, of a cause upon the same pleadings and proofs as the cause was heard upon in the court below ; and this applies as well to causes where a feigned issue was ordered, as to Other appeal cases. It is therefore absolutely essential that all the testimony used in the court below should be returned to this court, and ordinarily, a party interested in the testimony will see that it is properly taken and certified to this court.
Did there exist no other objection to affirming this decree, except the one noticed, that there is no testimony before us to sustain it, that would, of itself, constitute an insuperable difficulty, but there are others equally fatal.
And, first, it will be conceded that when a bill is essentially defective in substance, no relief can be granted upon it, whatever may be the character of the proof; for the reason that no facts are properly in issue unless charged in the bill; and of course no proof is competent except such as is pertinent to the issue joined. 2 Wis. 552; 1 Hawks’ (N. C.) R. 859; 11 Peters, 229 ; 6 Conn. R. 37; 1 J. C. R. 184; Story's Eg. Plea., § 257. The reason assigned for this rule is such as to commend it to the good sense of every one, which is, “ That the defendant may be apprised by the bill what the suggestions and allegations are, [141]*141against which he is to prepare his defence.” Story's Eg. Plea., § 257.
If the allegations of this bill, to which we have referred, be examined, they will be found, with the most favorable view that can be taken- of them for the complainant, not to constitute a sufficient ground of divorce under our statute. The court is authorized to grant a divorce a vinculo, — by subdivision 5, sec. 9, — ■ ■“ When the treatment of the wife by the husband has been cruel and inhuman, whether practiced by using personal violence or by any other means;” and by sec. 11, discretionary power is given the court to grant it for the causes specified in subdivision S of sec. 10, “ On the complaint of the wife, when the husband, being of suffiicent ability, shall refuse or neglect to provide for her, or where his conduct towards her is such as may render it unsafe and improper for her to live with him.” The conduct spoken of in the latter clause of this subdivision, which would render it improper and unsafe for the' wife to live with the husband, is doubtless such conduct as would constitute cruel and inhuman treatment under subdivision 5, sect. 9. The two causes do not appear to be distinguishable from each other. 2 Kent, 126; Mason vs. Mason, 1 Edw. Ch. R. 278; 2 Val. Arn. Law, Jan. p. 198. Now, although courts have manifested a great unwillingness against defining affirmatively cruelty, as that term is employed in statutes substantially like our own; yet a slight examination of the authorities will show that the facts charged and set forth in this bill, do not constitute cruelty in a legal sense, within the most liberal definition of the term. Cruelty, as used in these statutes, is considered to have very much the sense of sacritia
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By the Oourt,
Cole, J.
This was an application on the part of the appellee, for a divorce from the bond of matrimony. The ground of the application appears to be cruel and inhuman treatment by her husband, based upon subdivision 5, of section 9, chap. 79, B. 8.; and upon subdivision 3, section 10, of the same chapter, which latter provision is made a substantive cause of divorce, by section 11, whenever, in the opinion of the court, the circumstances of the case are such that it will be discreet and proper to grant it.
■ The appellee, in the bill of complaint, after unnecessarily detailing at some length her relations to the appellant for some two jmars before her marriage to him, giving publicity to events in their previous history, that, to say.the least, are quire im•pertinent to this issue, and which it would seem both parties ought to be equally interested in burying in oblivion, goes on [139]*139to specify certain instances of unkind, cruel and inhuman con" duct on the part of her husband. She represents in her bill of complaint that, soon after marriage, her husband began to use cruel and tantalizing language to her; to treat her roughly, boasting of having secured his property from her; and reminding her of the poverty of her parents, and of her own helplessness; and derisively asserting that their marriage was a spurious one and a sham; clandestinely taking her marriage certificate from her; and making no suitable provision for her support, and that of her child ; that he kept her scantily clothed ; that they had no well, cellar or rain cistern; nor a cupboard, bureau or shelf about the house; nor even a box into which she could put crockery or clothing, scanty as hers was; that the only cabinet furniture in the house was a few chairs, a candle stand, and table, which her husband said cost $3.50, and therefore would not permit her to do her ironing' upon it, because it would be injured; but compelled her to do most of such work upon a low water-pail bench, only about a foot high ; that her husband neither clothed her decently or comfortably; has never furnished her with a comfortable bed and furniture ; that they had ■but one thing called a bed in the house, and that a straw bed, with scanty covering; that she has been compelled to sleep on a straw bed very scantily supplied ever since they kept house; that she has been twice locked out of her house by him for two days; and that on one occasion she had the key to the house, and tried to prevail upon him to permit her to keep it, as he was going away, but that he would not, but wrenched it out of her hands with violence and anger; that he does not, but refuses, to supply her with suitable provisions, seldom allowing or furnishing her with milk for tea or coffee; that for three or four days at a time she had only musty bread made of musty flour or meal, with no meat or butter; for-the like period has .lived on such bread, with only salt and potatoes, and some pickled beets; that he has control of an abundance of wealth; and also refuses her the society of her parents, brothers and sisters.
The above constitute the material allegations of the bill, upon which a divorce must be granted, if granted at all.
To the bill, the appellant filed an answer, denying, under oath, its main allegations, and charging his wife with unkind [140]*140and unbecoming conduct towards him. A replication was put in; and on motion of the appellant, a feigned issue was ordered by the court to determine the question as to. whether the treatment of the complainant between the 9th day of March, 1851, and the 12th day of October, 1852, was cruel and inhuman. On the second trial, the jury found this issue in the affirmative, and thereupon the Circuit Court decreed a dissolution of the marriage contract between the parties.
Upon an examination of the record, it is found that but a small part of the testimony given on the trial below has been sent up to this court; but still, it was suggested by the counsel for the appellee, that we should presume that the finding of the jury was warranted by the evidence before them, and that it devolves upon the party assailing the decree here, to show that it was erroneous, and not supported by the evidence. Perhaps it is proper to remark, in answer to this suggestion, that the hearing of an appeal in this court is a review, by a distinct and superior tribunal, of a cause upon the same pleadings and proofs as the cause was heard upon in the court below ; and this applies as well to causes where a feigned issue was ordered, as to Other appeal cases. It is therefore absolutely essential that all the testimony used in the court below should be returned to this court, and ordinarily, a party interested in the testimony will see that it is properly taken and certified to this court.
Did there exist no other objection to affirming this decree, except the one noticed, that there is no testimony before us to sustain it, that would, of itself, constitute an insuperable difficulty, but there are others equally fatal.
And, first, it will be conceded that when a bill is essentially defective in substance, no relief can be granted upon it, whatever may be the character of the proof; for the reason that no facts are properly in issue unless charged in the bill; and of course no proof is competent except such as is pertinent to the issue joined. 2 Wis. 552; 1 Hawks’ (N. C.) R. 859; 11 Peters, 229 ; 6 Conn. R. 37; 1 J. C. R. 184; Story's Eg. Plea., § 257. The reason assigned for this rule is such as to commend it to the good sense of every one, which is, “ That the defendant may be apprised by the bill what the suggestions and allegations are, [141]*141against which he is to prepare his defence.” Story's Eg. Plea., § 257.
If the allegations of this bill, to which we have referred, be examined, they will be found, with the most favorable view that can be taken- of them for the complainant, not to constitute a sufficient ground of divorce under our statute. The court is authorized to grant a divorce a vinculo, — by subdivision 5, sec. 9, — ■ ■“ When the treatment of the wife by the husband has been cruel and inhuman, whether practiced by using personal violence or by any other means;” and by sec. 11, discretionary power is given the court to grant it for the causes specified in subdivision S of sec. 10, “ On the complaint of the wife, when the husband, being of suffiicent ability, shall refuse or neglect to provide for her, or where his conduct towards her is such as may render it unsafe and improper for her to live with him.” The conduct spoken of in the latter clause of this subdivision, which would render it improper and unsafe for the' wife to live with the husband, is doubtless such conduct as would constitute cruel and inhuman treatment under subdivision 5, sect. 9. The two causes do not appear to be distinguishable from each other. 2 Kent, 126; Mason vs. Mason, 1 Edw. Ch. R. 278; 2 Val. Arn. Law, Jan. p. 198. Now, although courts have manifested a great unwillingness against defining affirmatively cruelty, as that term is employed in statutes substantially like our own; yet a slight examination of the authorities will show that the facts charged and set forth in this bill, do not constitute cruelty in a legal sense, within the most liberal definition of the term. Cruelty, as used in these statutes, is considered to have very much the sense of sacritia of the civil and ecclesiastical law. And hence it is said that to justify a court in interfering to dissolve the marriage relation, grave and weighty causes must exist, which show that the duties of the married life cannot be discharged. 2 Kent, 126; Bishop on M. & D. chap. 23; Barrare vs. Barrree, 4 J. Ch. R. 187; Mason vs. Mason, supra; Evans vs. Evans, 1 Hagg. R. 35; Holden vs. Holden, ib. 453; D'Aguilar vs. D'Aguilar, t Hagg. R. 773; Harris vs. Harris, 2 id. 376. Abusive and opprobrious language, which wounds the feelings merely, unaccompanied with any bodily injuries, actual or menaced, is not considered a ground for a divorce. The allegations of the com[142]*142plainant that the defendant used cruel and tantalizing language to her, treated her roughly, boasted of having secured his property from her, reminded her of the poverty of her parents and asserted that their marriage was a shave, however unfeeling and unbecoming an honorable and affectionate husband, is not cruel and inhuman treatment; nor is it such conduct towards her as to render it unsafe and improper for her to cohabit with him. The same observations apply to the other acts of alleged cruelty specified by her, such as compelling her to do her ironing upon a low water-pail bench, taking the key of the house from her, and locking her out of the house. It is true, had she averred that her husband had locked her out of the house willfully and wantonly for two days, without her having any suitable place to stay in the meantime, and under circumstances to endanger her health and life, it would have clearly been an act of legal cruelty towards her. But nothing of the kind is averred. The allegation is too general and indefinite as it now stands, to support a charge of cruelty.
We do not know but the complainant intended placing her application for a divorce upon another ground, and to bring it within the case mentioned in the first clause of subdivision 3, sec. 10. By that clause it is made a cause for a divorce “ when the husband, being of sufficient ability, refuses or neglects to provide for his wife.”' If so, her bill falls far short of setting forth such a case. Her husband has not refused or neglected to provide for her, but he has not made such provisions for her comfort as perhaps he might, and in duty ought to have made. It seems they have been keeping house some» four months. The house in which they live was a log one, and with few of the conveniences for housekeeping about it; besides, it was poorly provided with household furniture, bedding, &c. The complainant alleges that she has been scantily supplied with clothing, and. has at times had to live.upon musty bread. Being disposed to take the most favorable view for the .complainant of all these charges of unkindness and want of attention to her happiness and comfort upon the part of her husband, he being able to make ample provisions for his family ; yet we are compelled to say, that while such conduct reflects no credit upon his character, [143]*143it will not justify the interposition of the court in granting a divorce.
We have all along considered this cause upon the case made by the bill, without regard to the answer, or anything that might be urged in defence or palliation of the husband’s conduct, for the reason that we deem the bill as essentially and fatally defective in setting forth a cause of divorce.
The decree of the Circuit Court must therefore be reversed, and the'bill of complaint dismissed.