GOLDTHWAITE, J.
— This suit was instituted in the Circuit Court of Washington county, in January eighteen hundred and thirty-four, and is a bill in equity, by means of which, the complainant seeks to procure the dissolution of a marriage, contracted between the defendant and herself, in the year eighteen hundred and ten.
The complainant alleges, in terms well calculated to excite the sympathies, that she has borne to the defendant eight children, all living pledges of her affection to him, whom she charges to have treated her at all times with coldness and neglect, and frequently with personal chastisement, brutal insult and unmanly abuse.
[472]*472She further charges him to have formed an adulterous connexion, about the year eighteen hundred and twenty-nine, with one Charlotte Richardson, a common prostitute, whom he brought to the dwelling of the complainant, built for her a house, but a short distance therefrom, and has ever since lived with her in adultery.
She also charges,* that she entertained serious apprehensions for her life, from his cruelty — he having declared in the most solemn manner, that he would tafee her life, but for the fear of the law ;■ compelled by this cause, she sought refuge with her mother, on whose kindness and bounty she had subsisted for the last four years, previous to the exhibition of her bill.
She alleged moreover, that two of her children are daughters, grown up to woman’s estate, whom the defendant, regardless of the duties and feelings of a parent, had reduced to the degraded state of servants and slaves to his paramour, compelling them to perform the most menial offices to that prostitute:— That the other children remaining with him, are in a state of almost entire nakedness, destitute of the soothing attentions of a mother, and daily witnesses of the disgraceful, immoral and adulterous conduct of their father.
The bill also sets forth, a statement of the personal estate held by the defendant, and alleges that nearly the whole of the same, was obtained by reason of his marriage with the complainant.
She prays that the marriage may be dissolved, the property devided as may be just and equitable, that the custody of the children may be committed to her, and for general relief.
[473]*473The answer is in a tone of. sufficient asperity, to shew the state of feeling between the parties to have been of a most, unpleasing description. The complainant is charged to have been exceeding lazy, indolent and taking no care of the family — with permitting every thing to be wasted, neglected and destroyed — with being petulent, passionate arid oftentimes sullen and stubborn, — at times exhibiting the greatest passion and fury, and then remaining silent for weeks.
The defendant admits that he has more than once inflicted personal chastisement on his wife, by whipping her with small peach or plum tree switches, and once by striking her with his open hand, — but this he excuses by reason of being provoked thereto, by her excessive abuse, taunting and. provoking language, combined with her insufferable neglect.
In relation to the particular and specific cause of offence, set forth in the bill, the defendant alleges, ■■ that at the time his wife left his house and for more than a year subsequent thereto, he neter had been guilty of an act of infidelity to his wife, in connexion with Charlotte Richardson, and that she did not remove into the house, near the dwelling of the defendant, until more than a year subsequent to the time his wife left his bed and board.”
The answer denies in general terms, any cruel treatment, and insists that the defendant has conducted himself to his children, as a kind and affectionate father; that he neither permits them to see or learn any thing which is improper, and that they are all well satisfied with their condition in life, and desire no change.
[474]*474It must appear to all, that if the facts as they are charged, actually exist, there could be but little difficulty in establishing the same by evidence, which would be perfectly satisfactory in its character; but that disclosed by the record, produces no such conclusion — the examination of the witnesses was evidently conducted by those unskilled in the art, or not aware of the importance of presen tin g facts for the consideration of the Court, and although enough is disclosed to induce the belief that the witnesses knew more, and could perhaps have stated facts, which, if disclosed, might have established the material allegations of the bill — yet it would be highly dangerous, as well as manifestly illegal, for any Court to act on facts which might, but which have not, been established by testimony.
It has been urged with great force, that the same measure of testimony should not be required to establish the crime of adultery, against him who is shewn to entertain a feeling of disgust and dislike to his wife, as against one whose daily intercourse is of the most friendly and harmious description — but it cannot be said that the mere existence of such feelings will authorize a Court to infer the commission of such an offence, without some evidente within the established rules.
It is said, however, that the proof brings the defendant within the rules of evidence applicable to cases of this character — that the factis not necessary to be established by direct evidence, but may be inferred -from other facts. — That if a married man is seen at a brothel, and remains there a sufficient time, in a room with a common prostitute, to commit the act, [475]*475adultery shall be inferred. — Astly vs Astly.
It is said that here is a married man, going into á brothel, &c. — but no evidence is shown in the record to establish any fact which can legelly induce the’ 'conclusion that this female was then a prostitute.
The subsequent facts proved, are that she was removed in eighteen hundred and twenty-nine or eighteen hundred and thirty, to a house near the defendant, by a slave belonging to him — that she has since had-two bastard children, of which he' is the reputed father, and that he has been seen at her’ house.-
The witnesses state that they know nothing of their own knowledge, but from circumstances, they should think that the defendant and Charlotte Richardson had been living, or might have been living in adultery since about eighteen hundred and twenty-nine. It is also proved that he paid for a loom which was put up in her house.
If we test these facts by the rule before referred to, can we arrive at the conclusion of adultery committed.
The reputation of the paternity of the children, is certainly not the legal way to establish it, nor can it [476]
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GOLDTHWAITE, J.
— This suit was instituted in the Circuit Court of Washington county, in January eighteen hundred and thirty-four, and is a bill in equity, by means of which, the complainant seeks to procure the dissolution of a marriage, contracted between the defendant and herself, in the year eighteen hundred and ten.
The complainant alleges, in terms well calculated to excite the sympathies, that she has borne to the defendant eight children, all living pledges of her affection to him, whom she charges to have treated her at all times with coldness and neglect, and frequently with personal chastisement, brutal insult and unmanly abuse.
[472]*472She further charges him to have formed an adulterous connexion, about the year eighteen hundred and twenty-nine, with one Charlotte Richardson, a common prostitute, whom he brought to the dwelling of the complainant, built for her a house, but a short distance therefrom, and has ever since lived with her in adultery.
She also charges,* that she entertained serious apprehensions for her life, from his cruelty — he having declared in the most solemn manner, that he would tafee her life, but for the fear of the law ;■ compelled by this cause, she sought refuge with her mother, on whose kindness and bounty she had subsisted for the last four years, previous to the exhibition of her bill.
She alleged moreover, that two of her children are daughters, grown up to woman’s estate, whom the defendant, regardless of the duties and feelings of a parent, had reduced to the degraded state of servants and slaves to his paramour, compelling them to perform the most menial offices to that prostitute:— That the other children remaining with him, are in a state of almost entire nakedness, destitute of the soothing attentions of a mother, and daily witnesses of the disgraceful, immoral and adulterous conduct of their father.
The bill also sets forth, a statement of the personal estate held by the defendant, and alleges that nearly the whole of the same, was obtained by reason of his marriage with the complainant.
She prays that the marriage may be dissolved, the property devided as may be just and equitable, that the custody of the children may be committed to her, and for general relief.
[473]*473The answer is in a tone of. sufficient asperity, to shew the state of feeling between the parties to have been of a most, unpleasing description. The complainant is charged to have been exceeding lazy, indolent and taking no care of the family — with permitting every thing to be wasted, neglected and destroyed — with being petulent, passionate arid oftentimes sullen and stubborn, — at times exhibiting the greatest passion and fury, and then remaining silent for weeks.
The defendant admits that he has more than once inflicted personal chastisement on his wife, by whipping her with small peach or plum tree switches, and once by striking her with his open hand, — but this he excuses by reason of being provoked thereto, by her excessive abuse, taunting and. provoking language, combined with her insufferable neglect.
In relation to the particular and specific cause of offence, set forth in the bill, the defendant alleges, ■■ that at the time his wife left his house and for more than a year subsequent thereto, he neter had been guilty of an act of infidelity to his wife, in connexion with Charlotte Richardson, and that she did not remove into the house, near the dwelling of the defendant, until more than a year subsequent to the time his wife left his bed and board.”
The answer denies in general terms, any cruel treatment, and insists that the defendant has conducted himself to his children, as a kind and affectionate father; that he neither permits them to see or learn any thing which is improper, and that they are all well satisfied with their condition in life, and desire no change.
[474]*474It must appear to all, that if the facts as they are charged, actually exist, there could be but little difficulty in establishing the same by evidence, which would be perfectly satisfactory in its character; but that disclosed by the record, produces no such conclusion — the examination of the witnesses was evidently conducted by those unskilled in the art, or not aware of the importance of presen tin g facts for the consideration of the Court, and although enough is disclosed to induce the belief that the witnesses knew more, and could perhaps have stated facts, which, if disclosed, might have established the material allegations of the bill — yet it would be highly dangerous, as well as manifestly illegal, for any Court to act on facts which might, but which have not, been established by testimony.
It has been urged with great force, that the same measure of testimony should not be required to establish the crime of adultery, against him who is shewn to entertain a feeling of disgust and dislike to his wife, as against one whose daily intercourse is of the most friendly and harmious description — but it cannot be said that the mere existence of such feelings will authorize a Court to infer the commission of such an offence, without some evidente within the established rules.
It is said, however, that the proof brings the defendant within the rules of evidence applicable to cases of this character — that the factis not necessary to be established by direct evidence, but may be inferred -from other facts. — That if a married man is seen at a brothel, and remains there a sufficient time, in a room with a common prostitute, to commit the act, [475]*475adultery shall be inferred. — Astly vs Astly.
It is said that here is a married man, going into á brothel, &c. — but no evidence is shown in the record to establish any fact which can legelly induce the’ 'conclusion that this female was then a prostitute.
The subsequent facts proved, are that she was removed in eighteen hundred and twenty-nine or eighteen hundred and thirty, to a house near the defendant, by a slave belonging to him — that she has since had-two bastard children, of which he' is the reputed father, and that he has been seen at her’ house.-
The witnesses state that they know nothing of their own knowledge, but from circumstances, they should think that the defendant and Charlotte Richardson had been living, or might have been living in adultery since about eighteen hundred and twenty-nine. It is also proved that he paid for a loom which was put up in her house.
If we test these facts by the rule before referred to, can we arrive at the conclusion of adultery committed.
The reputation of the paternity of the children, is certainly not the legal way to establish it, nor can it [476]*476weigh — neither can we infer what the circumstances are, which the witnesses do not state. Does the paying for the loom — the moving of the woman by the slave or by his master — the proximity of residence— the being seen at her house — no circumstances of suspicion being stated, or the bearing of bastard children by her, with the reputation of Richardson’s being their father' — 'bring this case within the general rule before stated.
We look in vain for any fact, which by fair inference will lead to adultery as a necessary conclusion.
' Before dismissing the consideration of the evidence in this cause, it may not be improper to advert to the general rules which are understood to prevail in the ecclesiastical Courts on the subject of allegation. It is believed to be the uniform practice of these Courts, to require that all the facts should be alleged with such convenient certainty, of time, person and place, as will enable the defendant to meet the charge with proof. How far the adoption of similar rules may be necessary or expedient in this State, is one point on which the Court will not now express any opinion.
But it is said that no evidence was necessary in this cause — that the material fact of adultery is admitted by the answer, and that a decree must be the consequence — that the statute directing that the confessing or admission shall be received, was only to prevent collusion, and ought not to apply to cases where no collusion exists, and where none can be apprehended.
All the various statutes on the subject of divorce, seem to have copied very closely from the rules which have obtained in the ecclesiastical Courts of England, [477]*477and perhaps the exposition which has been given to these rules, will be found to afford good, if not the best rules of construction, for our statutes.
That confessions, shall not by themselves, be admitted to establish the fact of adultery, is a well settled rule of those Courts, and is one of the established canons of the English church, adopted in the year sixteen hundred and three,—and the unvarying decisions of the Courts of Doctors Commons have applied it to all cases of divorce, whether final or temporary. Some doubt seems'to have existed, whether the most solemn confession, without some fact proved, leading to act, Would, of itself justify the husband in withdrawing from the bed of his wife.— Mortimer vs Mortimer.*
This case is believed to settle the construction which the canon of the church has received—indeed, it would be impossible, to say how far any rule, which should attempt to attach facts to a confession, Would be of any real service: for, if the confession would not be received by itself, it is difficult to conceive how any fact, not conclusive in itself, would aid it. Be this as it may, our statute has not left the discretion to any Court, to receive aid from a confession. It is found,† “In order to prevent collusion between the parties, in no case, shall the confession of them, or either of them, be taken or received as evidence, in any case of divorce.”
It was a subject of some doubt, with the Court, whether the object of the legislature being apparent, to prevent collusion, and there being no danger, or not such great danger of this, in cases where the divorce was not a vinculo, a Court would not be au-[478]*478thorised to decree a divorce a mensa et ihoro, on a confession merely; but such a practice seems never to have obtained in the English ecclesiastical Courts, under a canon certainly not so obligatory in its terms, as our statute, which applies to all cases of divorce, whether final, or otherwise. A similar rule obtains *n ^ew York.*
We have, therefore, been reluctantly drawn to the conclusion, that the admission or confession of the adultery, in the answer, would not authorise the Court to decree, without proof of the fact, in the ordinary method, provided for, by the rules of law, — and our regret is the greater, because,- in the case before us, the answer seems very distinctly to admit the crime charged; but to rest its excuse on what is termed by the ecclesiastieal Courts, compensatio cri-minis, setting up the desertion of the wife from his house, in eighteen hundred and twenty-nine,- as a bar to her relief. If such was admitted, it would not bar the relief. — Even a malicious desertion will not bar a sentence of divorce, for adultrey. — Sullivan vs Sullivan.†
The charge of cruelty, is the only one remaining to be considered; and without examining the mode of its allegation, either as general or particular, so as to enable the defendant to answer or disprove the fact, it is sufficient to observe, that on this point, there is a total defect of testimony.
The Court below dismissed the bill at the costs of the complainant, and it does not appear, in any part of the record, that she prosecuted her cause by a pro-chien amy, who would, alone, be responsible for costs. It was manifestly improper to render any decree [479]*479against her, for costs, in a suit prosecuted against her husband, under any circumstances; but, in this case, the Court is of opinion, that lie should have •been compelled by the decree, to pay the same — as, from the admissions of the answer, it appears that she had probable cause for instituting her proceed-, ings; although she may not have been able to prose.cute the case to successful issue.
He would also have been directed, in the earliest .stage of the proceedings, to pay over to her procliien umy, a sufficient sum of money to prosecute the suit to a final hearing; and she should have been alimented pendente lite — as the husband would thus have been responsible for the costs, there would have been neither hardship or impropriety, in decreeiug the same against him, independent of the admissions of the answer.
It might also have been proper, for the Court below, under peculiar circumstances, to have dismissed the bill, but without prejudice, though such a de: cree is understood to be matter of discretion with the Court — and which exercise of discretion could not be reviewed. — But as this question has not been argued, no opinion is necessary on this point — the more especially as, from the facts charged by the bill, and disclosed by the answer, it is not improbable, that the causes which induced the exhibition of the complaint, may have continued since the suit was instituted.
It is the opinion of this Court, that there is no error in the decree, so far as it directs the bill to be dismissed — -and that there is error in the same, so far as it directs the dismission, at the costs of the com[480]*480plainant, — for which error it is reversed; and this Court, proceeding to render such decree as should have been rendered by the Court below, doth order, adjudge and decree, that the said hill of complaint be dismissed, and that the said John Richardson, the defendant therein, shall pay all the costs of this Court, and of the Court below.
J nagg.-