27 Ala. 222 | Ala. | 1855
This was a suit brought by Mrs. David against her husband to obtain a divorce, on the ground of cruel treatment. The bill contains several specific allegations of cruel treatment, commencing in 1844, and continuing into 1847, when she separated from him, It is unnecessary to refer particularly to any of the specific allegations, which are stated as having occurred before the years 1846 or 1847, as there is no evidence to sustain them. It is charged, however, that in 1846, or 1847, he struck her several blows with a stick, and choked her ; and this charge is, we think, substantially made out by the testimony. There are other acts of violence of a similar character which are also proved, but a court would not be authorized to grant a divorce upon acts of cruelty which were not specifically alleged. The law, it is true, very properly allows the court to consider and give weight to matters which are not pleaded, as tending to explain and corroborate those which are; but they cannot be the foundation, or only ground, for a divorce. — Whisper v. Whisper, 4 Barb. 217.
It is urged, however, on the part of the appellant, that none of the specific allegations of cruelty are established, and for that reason the case made by the complainant is not the same as that which is made by the bill. It is certainly true that the testimony does not prove the particular act of violence,
In making an application of the principles to which we have adverted to the facts of the present case, we do not consider it necessary to go into the evidence in detail. The parties were married in 1843, and appear to have got along together tolerably until 1846, — at least we find her admitting, in 1845, that he had up to that time treated her kindly and affectionately, and that but for her children there would be no difficulty. In the year 1846, we have the first evidence of misconduct on her part, in the abuse of J. S. David and her husband, when the former visited the house for the purpose of purchasing a negro. We know that females are sometimes
We would not, however, be understood as defending, or even excusing, the conduct of the appellant. Thajt he may have been greatly provoked and irritated, we do not doubt; but from the testimony we are strongly inclined to the opinion, that the property of the appellee was the principal inducement to the marriage on his part. At all events, it is certain that his conduct was not free from blame. While he gave the most indubitable proofs of being able to control his temper in the presence of third persons, he did not in private always exercise that degree of forbearance and meekness which became him as a man dealing with the mother of grown children, and as a professor of a Christian church. The fault of the wife, in the use of the most irritating language, although it may prevent her from succeeding in a suit for a divorce, is no excuse for the infliction of personal violence of the character which the evidence shows was used in the present case.
Under the influence of the views we have expressed, the decree of the chancellor must be reversed, and a decree here rendered dismissing the bill; but the costs in this court and the court below must be divided — one-half to be paid by each party.