The Vxce-Chancellok.
I must examine, with some particularity, the proofs in this cause; in order to ascertain whether there is enough shown to justify the complainant in separating from her husband and to entitle her to the interference of the court.
Frequent .intoxication constitutes the principal, if not the only source from whence has proceeded the misconduct of which the wife complains. It is in evidence, from the defendant’s admissions, in letters which he wrote to his friends during the year one thousand eight hundred and twenty-three, that he had been addicted to the use of ardent spirits and had contracted bad habits of drinking; and from the testimony of witnesses it appears, that, both at the South and in the city of New York, he occasionally indulged in it to intoxication; although, no witness has given him the character of an habitual drunkard.
I cannot admit this propensity or the occasional or even frequent indulgence of it to be, of itself, a sufficient ground for a bill of this kind. The court is not to add to the deplorable consequences of intemperance,by making it, however excessive, the sole cause for severing the conjugal tie. It has no such power. When a husband falls into this vice, he may require, [285]*285more than ever, the watchful attention, care and kindness of a wife in order to win him back to the paths of virtue and sobriety", and I should strongly reprobate the policy of a law', which should make intoxication alone a sufficient ground for separation or divorce. Still, if the consequences of intoxication are visited upon tile wife, or the same is made the foundation of a course of aggression, so as to produce bodily injury or endanger her personal safety while cohabiting with him, it is then the law interposes in her behalf and gives to this court its authority to separate the one from the other.
The evidence in this cause discloses'only one instance in which any thing approaching to personal violence has been the consequence of the defendant's inebriety. This occurred in the montii of August one thousand eight hundred and twenty-five. The persons then present, and who speak of" the transaction, are John T. M. Davie, who is the complainant’s brother, Sííss Mcf hail, a mantua-maker who had been employed in the family five or six days, and William Steele. According to Miss M'Phail’s relation, the defendant came-home in the evening intoxicated and behaved abusively towards his wife, using indecent and abusive language, in terms which the witness was not willing to repeat. The complainant appeared to be intimidated and alarmed,and sent for Mr. Steele,their neighbour, who came to the house and took the defendant out to walk with him. In the mean time the complainant left her home and went to her father’s dwelling. This witness testified, that previous to the - period now referred to, she saw nothing improper in the bebaviour of the defendant towards his wife; and she did not at that time see him strike her.
John T. M. Davie gives a different, and, I cannot but believe, an exaggerated account of this affair. He says, that on coming to the house that evening he observed that there was some disturbance; and discovered the defendant was intoxicated. At the entrance of the house he met Miss M'Phail, and in the passage, Mr. i.Ueele, who requested the witness to keep quiet and he would endeavour to pacify the defendant. While in the passage, the defendant made use of very abusive language towards the complainant, applying gross and vulgar epithets, [286]*286which the witness details; and he says, “menaced her with' “ blows in such a manner as to leave him with an apprehension “ that he meant to strike her,” insomuch, that the witness sprang forward to prevent any violence being committed. The complainant, it appears, then went into the back room, and, from thence, up stairs; and Mr. Steele induced the defendant to take a walk with him. In his absence, the complainant left the house and went to her father’s, requesting the witness to inform her husband she would return the next morning and talk to him on the subject of his conduct.
Mr. Steele, who must be considered a more disinterested and impartial observer of what took place, says, on being sent for he went to the house; he heard loud talking and altercation; and the complainant remarked to him, that the defendant was abusing her with his tongue. Witness told her,'it was not worth minding, as the defendant was in liquor. During the time he was present, he heard no language addressed to the complainant or applied to her but such as he may have heard occasionally in his own-family. The defendant, however, he says, used abusive language against the complainant’s father of a very violent nature, and calculated to wound her feelings; but he did not hear the defendant give the complainant any bad name. With a view to pacify the defendant, the witness invited him to take a walk, which he did. He soon became orderly; and when they returned, which was in about a quarter of an hour, the witness left him at the door. Mr. Steele further states, he did not perceive it was absolutely necessary for the safety of the complainant that she should have left the house.
The dispute appears to have arisen from the defendant’s declaring, that if the complainant would not go to the South with him, he would take the child. The settlement of December one thousand eight hundred and twenty-three also formed a part of the dispute; and it is probable the name of the father was mentioned in connection with this part of the matter. The misunderstanding, however, ended with the excitement which produced it; and the moment that subsided, there was no longer any apprehension for the complainant’s personal safety. She, indeed, returned the next "morning.
[287]*287There is evidence, it is true, from her physician to show, that the agitation of mind into which she was thrown produced an ... . . indisposition rendering medical attendance necessary. But we have, at the same time, the best evidence of the defendant’s kindness and good feeling, when sober, in the fact testified to by the physician: of his expression of regret at what had happened and his great anxiety for her welfare.
In my judgment, this occurrence, taken by itself, is not sufficient to authorize the court to interfere. It was an instance of misconduct on the part of the husband; but not of a character or description which the law contemplated or intended to guard against in providing a remedy in this court for the wife. There must be a more settled and deliberate course of misconduct, before the court can lend its aid. Occasional sallies of passion, from whatever cause, do not amount to legal cruelty so long as they do not threaten bodily harm; and, taking the evidence together, I am at a loss to discover, on the occasion just adverted to, any thing to create a serious apprehension of personal injury or danger to the wife.
There is one allegation which, if proved, would go far to establish her case. I allude to the charge in the bill, that, on the tenth day of November one thousand eight hundred and twenty-four, six days only after the birth of her child and while she was very ill in consequence of her confinement, the defendant used the most abusive and profane language to her, and threatened to take the child away and carry it to North Carolina ; and behaved so outrageously and the complainant became so alarmed and agitated, that her nurse and attendants were apprehensive of serious consequences to her life.
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The Vxce-Chancellok.
I must examine, with some particularity, the proofs in this cause; in order to ascertain whether there is enough shown to justify the complainant in separating from her husband and to entitle her to the interference of the court.
Frequent .intoxication constitutes the principal, if not the only source from whence has proceeded the misconduct of which the wife complains. It is in evidence, from the defendant’s admissions, in letters which he wrote to his friends during the year one thousand eight hundred and twenty-three, that he had been addicted to the use of ardent spirits and had contracted bad habits of drinking; and from the testimony of witnesses it appears, that, both at the South and in the city of New York, he occasionally indulged in it to intoxication; although, no witness has given him the character of an habitual drunkard.
I cannot admit this propensity or the occasional or even frequent indulgence of it to be, of itself, a sufficient ground for a bill of this kind. The court is not to add to the deplorable consequences of intemperance,by making it, however excessive, the sole cause for severing the conjugal tie. It has no such power. When a husband falls into this vice, he may require, [285]*285more than ever, the watchful attention, care and kindness of a wife in order to win him back to the paths of virtue and sobriety", and I should strongly reprobate the policy of a law', which should make intoxication alone a sufficient ground for separation or divorce. Still, if the consequences of intoxication are visited upon tile wife, or the same is made the foundation of a course of aggression, so as to produce bodily injury or endanger her personal safety while cohabiting with him, it is then the law interposes in her behalf and gives to this court its authority to separate the one from the other.
The evidence in this cause discloses'only one instance in which any thing approaching to personal violence has been the consequence of the defendant's inebriety. This occurred in the montii of August one thousand eight hundred and twenty-five. The persons then present, and who speak of" the transaction, are John T. M. Davie, who is the complainant’s brother, Sííss Mcf hail, a mantua-maker who had been employed in the family five or six days, and William Steele. According to Miss M'Phail’s relation, the defendant came-home in the evening intoxicated and behaved abusively towards his wife, using indecent and abusive language, in terms which the witness was not willing to repeat. The complainant appeared to be intimidated and alarmed,and sent for Mr. Steele,their neighbour, who came to the house and took the defendant out to walk with him. In the mean time the complainant left her home and went to her father’s dwelling. This witness testified, that previous to the - period now referred to, she saw nothing improper in the bebaviour of the defendant towards his wife; and she did not at that time see him strike her.
John T. M. Davie gives a different, and, I cannot but believe, an exaggerated account of this affair. He says, that on coming to the house that evening he observed that there was some disturbance; and discovered the defendant was intoxicated. At the entrance of the house he met Miss M'Phail, and in the passage, Mr. i.Ueele, who requested the witness to keep quiet and he would endeavour to pacify the defendant. While in the passage, the defendant made use of very abusive language towards the complainant, applying gross and vulgar epithets, [286]*286which the witness details; and he says, “menaced her with' “ blows in such a manner as to leave him with an apprehension “ that he meant to strike her,” insomuch, that the witness sprang forward to prevent any violence being committed. The complainant, it appears, then went into the back room, and, from thence, up stairs; and Mr. Steele induced the defendant to take a walk with him. In his absence, the complainant left the house and went to her father’s, requesting the witness to inform her husband she would return the next morning and talk to him on the subject of his conduct.
Mr. Steele, who must be considered a more disinterested and impartial observer of what took place, says, on being sent for he went to the house; he heard loud talking and altercation; and the complainant remarked to him, that the defendant was abusing her with his tongue. Witness told her,'it was not worth minding, as the defendant was in liquor. During the time he was present, he heard no language addressed to the complainant or applied to her but such as he may have heard occasionally in his own-family. The defendant, however, he says, used abusive language against the complainant’s father of a very violent nature, and calculated to wound her feelings; but he did not hear the defendant give the complainant any bad name. With a view to pacify the defendant, the witness invited him to take a walk, which he did. He soon became orderly; and when they returned, which was in about a quarter of an hour, the witness left him at the door. Mr. Steele further states, he did not perceive it was absolutely necessary for the safety of the complainant that she should have left the house.
The dispute appears to have arisen from the defendant’s declaring, that if the complainant would not go to the South with him, he would take the child. The settlement of December one thousand eight hundred and twenty-three also formed a part of the dispute; and it is probable the name of the father was mentioned in connection with this part of the matter. The misunderstanding, however, ended with the excitement which produced it; and the moment that subsided, there was no longer any apprehension for the complainant’s personal safety. She, indeed, returned the next "morning.
[287]*287There is evidence, it is true, from her physician to show, that the agitation of mind into which she was thrown produced an ... . . indisposition rendering medical attendance necessary. But we have, at the same time, the best evidence of the defendant’s kindness and good feeling, when sober, in the fact testified to by the physician: of his expression of regret at what had happened and his great anxiety for her welfare.
In my judgment, this occurrence, taken by itself, is not sufficient to authorize the court to interfere. It was an instance of misconduct on the part of the husband; but not of a character or description which the law contemplated or intended to guard against in providing a remedy in this court for the wife. There must be a more settled and deliberate course of misconduct, before the court can lend its aid. Occasional sallies of passion, from whatever cause, do not amount to legal cruelty so long as they do not threaten bodily harm; and, taking the evidence together, I am at a loss to discover, on the occasion just adverted to, any thing to create a serious apprehension of personal injury or danger to the wife.
There is one allegation which, if proved, would go far to establish her case. I allude to the charge in the bill, that, on the tenth day of November one thousand eight hundred and twenty-four, six days only after the birth of her child and while she was very ill in consequence of her confinement, the defendant used the most abusive and profane language to her, and threatened to take the child away and carry it to North Carolina ; and behaved so outrageously and the complainant became so alarmed and agitated, that her nurse and attendants were apprehensive of serious consequences to her life. This is a very grave charge against the husband; and one would suppose it to be susceptible of direct proof. She here vouches her nurse and attendants as witnesses; and if conduct so monstrous and brutal really took place, and attended too with such consequences, it is hardly possible to believe it could have escaped their observation. And yet, what is the testimony ? Elizabeth Sellars, the nurse, is the only witness examined in relation to it. She says, shortly after the complainant’s confinement, she observed her to be in tears; and the witness took occasion to [288]*288observe to the defendant, that if he had said any thing unkind to the complainant, it was a very improper time, for the consequences might render it necessary to got a nurse for the child. She did not know he had used any improper language towards the complainant. She had seen them several times conversing together; and seeing the complainant’s distress, and not knowing or suspecting any other reason for it, the witness was induced to speak to him in the manner she did. This witness then adds, that the conduct of the defendant, while she was in the house (a period of four weeks) was kind, and witness had no cause to suspect he was unkind on the day alluded to; but still she suspected some unkindness on the part of the defendant; because she did not see any other cause for the distress of the complainant. With respect to this witness, it is a little remarkable, "although she says that during the complainant’s confinement she, the witness, was her constant attendant and saw the defendant daily, that she never, saw in him any of the unkindness which she suspectéd ; and we are not told she ever heard the wife whisper a word of complaint. Indeed, so far from it, she says the complainant told her that the defendant wished her to stay about two weeks after her four weeks, had expired. The extent of this person’s testimony amounts to this—she entertained a suspicion unfavorable to the kindness of the defendant towards his wife, created by seeing the latter one day in tears, but without any other fact or circumstance coming under her-observation to authorize such a suspicion; and to which much stronger circumstances are opposed. Such, for instance, as- the wife’s never having been heard to complain; and the fact, stated by the witness herself, that the conduct-of the defendant was kind and attentive during the period of his wife’s confinement.
This testimony falls far short of its object. It does not in the least degree militate against the defendant in respect to this charge in the bill—a charge which, if true, would not only justify the wife in all she has done, but would call, down the severest censure of the court upon the defendant."
There are other circumstances in the case which require consideration. . Í allude tc what took place in Catcher one [289]*289thousand eight hundred and twenty-six; and which led to tho separation of the parties and the filing of the bill almost imme11 t"1 diately afterwards. About this time, the defendant was pro-paring to go, as usual, to North Carolina; and was desirous of taking his family with him. The complainant refused. On former occasions, he had solicited her to accompany him and reside there; and once he wrote to their mutual friend, Mr. M‘Crea, to use his kind offices with the complainant and persuade her to leave New York: but this she had uniformly refused. This was, consequently, a frequent source of controversy; especially when he happened to bo under excitement from liquor. Another subject gave rise to dispute : the complainant regularly received the dividends on her bank stock, which she invested so as to accumulate for her individual benefit, instead of applying the same towards defraying her family expenses, and which he insisted she ought to do. While under a state of feeling which these causes naturally enough produced, the time for his departure approached; and the complainant charges, that he repeatedly threatened to carry away the child and did commit an act of personal violence upon her (the wife:) but of which there is not the smallest evidence.
It does appear, however, that about the eighth day of October, the defendant came home from some other part of the city, partially intoxicated; and, finding the complainant and her child dressed for the purpose of taking a walk, he went out with them ; that on leaving the house or shortly afterwards, he took the child in his arms, and on some words arising between the complainant and him, he did say he would immediately set out with the child for Philadelphia, and refused to give it back to its mother. He went, however, with the child in his arms, to the house of Mr. M‘Crea; and the complainant accompanied him. When they came in, the complainant appeared to be agitated and requested Mr. M’Crea to go for her counsel; they were in a dispute ; the defendant said he was going to take the child with him to the South, to which the complainant objected; and while in the house he still kept the child in his arms and refused, to give it to the complainant. The dispute, it appears, was concerning the bank stock and its dividends. The defen[290]*290dont required of her to relinquish one half of the stock to him; and his object in withholding the child from her seemed to be, for tile pUrpose of inducing her to consent to such relinquishmcnt. She finally appeared to acquiesce; and he sat down to the table for the purpose of writing the form of a relinquishment. In doing this, he put the' child upon the floorand presently the complainant, unobserved by him, took the infant and made her escape from the house. Mr. M'Crea was present, and states that the defendant did not express any improper language towards the complainant at the time; and that, although he said he was going to take the child to the South, it gave him no uneasiness, as he knew the defendant was not prepared to take the child at this time. A short time after the complainant had left the house with the child, her father and mother came in; and angry and quarrelsome words ensued between her father and the defendant. In the course of it, the former attempted to strike the latter, but was prevented by Mr. M‘Crea. The complainant, on leaving Mr. M‘Crea’s, did not go to her own house, but went to some friends who received her. The defendant returned home; and, it would seem, remained some time, but how many days does not distinctly appear, in ignorance of the complainant’s place of retreat. This was the separation which led to the breaking up of their housekeeping; and preceded, but a little, the filing of the bill.
Is there, then, any thing shown in the whole course of the defendant’s conduct, in relation to his wife, which this court can lay hold of as a ground for divorce a mensa et thora ? I apprehend not. I can readily perceive much unhappiness; but this' is not sufficient. The remedy is elsewhere. To use the language of a learned judge, “courts of justice do not pretend to “ furnish cures for all the miseries of human. life.”
I have no doubt • the defendant has, in some respects, been unmindful of the obligations of .a husband; and it is equally certain there is much in his habits and conduct to reprehend. But, I am at a loss to discover the cruel and inhuman treatment or the conduct towards his wife which has rendered it unsafe and improper for her to cohabit with him, so far as to authorize [291]*291the court to interfere and place her beyond his dominion and control.
It is true, that to constitute sccoitia known to the -civil law, and which forms one ground for the jurisdiction of the ecclesiastical courts in cases between husband and wife, it is not necessary there should be an infliction of bodily injury or any act of personal violence committed. It is sufficient, if there be a series of unkind treatment, accompanied by words of menace, creating a reasonable apprehension that bodily injury may result to the wife, unless prevented. Still, the causes for such apprehension (says Sir William Scott in Evans v. Evans, 1 Hag. Con. lisp. 57) must be grave and weighty, and such as show an absolute impossibility that the duties of the married-life can be discharged; and all which falls short of this, is to be admitted with great caution. The same distinguished judge further tolls us, “mere austerity of temper, petulance of manner, “ rudeness of language, a want of civil attention, even occae‘ sional sallies of passion, if they do not threaten bodily harm, “ cannot amount to legal cruelty; and that which merely “ wounds the mental feelings is, in few cases, to be admitted, “ where they are not accompanied with bodily injury either “ actual or menaced.”
We have thus a pretty clear idea of what is and what is not cruelty in the legal sense of the term. And it appears to me the case under consideration falls much more aptly within the latter than the former part of the description. On the part of the defendant, when excited or stimulated by liquor, there has been occasionally a rudeness of language, with sallies of passion, and conduct wounding to the moral and mental feelings of the complainant: but, after a careful examination of the evidence, I have not been able to discover any facts showing such a degree of misconduct and ill treatment as makes out a case of legal cruelty.
But it is said: the statute which confers upon this court jurisdiction in these cases, has placed divorces a mensa et Ihoro upon broader grounds than arc assumed by the courts in England. The original statute, but more especially the Revised Statutes, have specified “ cruel a.nd inhuman treatment,” and [292]*292“ such conduct on the part of the husband towards his wife as “ may render it unsafe and improper for her to cohabit with “ him,” as, apparently distinct causes of divorce: and yet, I do n°t well perceive how they can be distinguished; because that which would render it “ unsafe and improper,” could not be any thing less than cruelty, according to the definition we have received. It must be actual personal violence,-menaces or threats, creating reasonable apprehension of bodily harm, which could alone render it “ unsafe” for a wife to remain with a husband; and those very acts would constitute a case of “ cruel and inhuman treatment.” They appear to me synonymous and convertible terms. - Chancellor Kent has, I think, favored this construction. “Probably,” says he, “the word “ unsafe in our statute may mean the same thing as the reason- “ able apprehension of bodily hurt in the English cases:” 2 Kent’s Com. 126, 2d edit.; and see his opinion in Barrer v. Barrere, to which he refers.
The other cause for divorce which the statute mentions, viz. abandonment and refusal or neglect to provide for the wife, has certainly created a broader ground of jurisdiction than is - exercised in England. In no other respect, as I apprehend, did the legislature intend to give the court greater or other powers over the subject of divorce than is possessed by the tribunals in the mother country—prescribing, however, a dif- ■ ferent sentence or decree.
I have thus far only examined the conduct of the defendant towards the complainant; and the law which is applicable between them as man and wife ; and I have not-been able to bring my mind to any other conclusion, than that the complainant has entirely failed to make out a case sufficient to justify a separation. She accepted the defendant as her husband, under obligations which she, as a wife, must discharge. It may have been an injudicious marriage, but it must be adhered to. By mutual forbearance and prudent conciliation, they must endeavour to lessen, if they cannot entirely remove, the causes which have produced such disagreement and unhappiness.
The defendant, by a petition presented to the court on the hearing, expresses a strong desire to have the complainant [293]*293return and live with him, promising to bestow every attention upon her and the two children (one child having been born * e x ^ since the filing of the bill) and to forget all former differences, and treat her on all occasions with kindness and attention. I can entertain no doubt of his sincerity in making the offer; but I am only able to recommend her acceptance of it.
There are several topics, which were strongly urged in the argument against the complainant, in regard to her own conduct: such as, her refusal to go and reside with him at the South, and, combining with her father in order to coerce the defendant into a settlement of the bank stock upon her. These circumstances, it is said, have been the cause of much of the difficulty and unhappiness complained.of; having produced a continued irritation in the mind of the defendant. It is unnecessary to express any opinion upon this part of the case. I, therefore, forbear to examine it. She still remains the wife of the defendant; and having failed to prove enough to justify a separation from her husband, I must, without examining into her own conduct, hold her bound to the performance of all her conjugal duties.
The bill must be dismissed; and, considering it was filed immediately after the separation and under circumstances which did not justify the complainant in so hasty a step, and that she possesses ample means, arising from the income of the settlement made upon her by the defendant, I shall decree against her the costs of the suit.