#### REBECCA J. WOOD vs. LORENZO WOOD.

Where husband and wife are living in a voluntary state of separation, the --court may in. some cases grant a divorce a mensa et thoro, for the cause of adultery committed during such separation.

Blit in no case will the court decree a divorce from the bonds of matrimony <?n the petition of a wife, who has separated herself from andlives apart from her husbandon the ground of adultery committed since the separation — unless she alleges, and proves on the trial of issues under her petition, that she was .compelled to sueh separation by the violent or outrageous conduct of her husband, in which case it shall be deemed that he separated himself from her.

If a wife petitions for a divorce from the bonds of matrimony, and alleges in her petition that she separated herself from her husband, she is estopped by this averment, and a verdict,that her husband separated himself from her, will not be regarded by the court, unless, upon a proper issue, circumstances of outrage or violence, justifying such separation, be found by a jury,

in a proceeding for a divorce, the issues submitted and the verdict iound should be as specific and certain, as the facts alleged in the petition.

The cases of Whittingkm v. Whittington, 2 Dev. & Bat. 64, and Moss v. Moss, 2 Ired. 55, cited and approved.

Appeal from the Superior Court of Law of Davidson County, at the Spring Term, 1845, his Honor Judge Caldwell presiding.

This is a suit instituted by Rebecca Wood, against her husband, Lorenzo D. Wood, for a divorce a vinculo matrimonii, for the causes of cruelty and maliciously turning her out of doors, and adultery. The parties were married ill 1836, and lived together until October, 1840, when the petitioner left her husband, and went to reside with her parents, at some short distance off, and has remained there ever since. During heir cohabitation, they had issue two children. The parties appear to have been in much the same rank of life: the petitioner being the daughter of a respectable man, the sheriff of Davidson county; and the defendant a practising physician.

The petition was filed in March, 1843, and charges, that, very soon after the marriage, the husband became addicted to *675intoxication, and was in that state two-thirds of the period they lived together: that very soon he became unkind, and treatment less and less affectionate, until it became cruel and barbarous in the extreme, and so continued for more than three years immediately preceding their separation. The petitioner then states, that the defendant frequently struck her with his fist, and choked her until she would fall,’ ánd, during her several pregnancies, that, with a knife drawn in his hand, he often threatened to kill her ; and, that upon one occasion in the last month <^f her pregnancy, he swore he would kill her, and seized her, and the petitioner states she believes he would have done so, had she not with much difficulty escaped and saved her life by staying in the fields all night: that he often terrified her by threats of taking her life with a large dissecting knife, and compelled her to fly for safety and conceal herself by lying out for a day and night at a time in winter and summer, exposed to snow and rain : that upon two occasions she was dangerously ill, and he attempted to poison her, as she believes, under the pretence of giving her medicine — at one time administering some article through a feed, in order the better to conceal it; and at the other,mixing up a large quantity of some drug in a bowl, and forcing her to take repeated doses through the day, although she could not do so without being made deadly sick; which latter drug she charges to have been sugar of lead or arsenic. The petition states several other specific acts of gross violence and personal indignity ; and that, during all that time, the petitioner demeaned herself as a dutiful, affectionate, and faithful wife: but that, finding that, instead of reformation on the part of the husband, he treated her worse and worse, and that her life was every moment in danger, and her condition intolerable, she was at length “ compelled by his conduct to a separation from’him, and was forced, for safety, to go to her father’s house, where she had resided separate from her husband for more than two years.”

By an amendment at September, 1843, the petition states, that, during the time of their cohabitation, the defendant, *676without her knowledge, committed adultery with several women, as she has since been informed. And that during their separation the said Lorenzo D. has lived in adultery and had adulterous intercourse with one E. D. P. at New Salem* in Randolph, in July 1841, and through the summer of that year. “ And also he had adulterous intercourse with one Rebecca Watson in Randolph County, in March 1842, and after-wards through that year, and continually afterwards up to that time, at the house of the said Rebecca Watson in Davidson County.” The petition further charges aduitery with two other named women, besides adultery with divers women, whoes names the petitioner alleges herself unable to state.— And it charges that the petitioner has at all times lived a chaste and virtuous life, and that she has not admitted her husband to conjugal embraces after she knew of his criminal acts of adultery, nor since she separated from him as aforesaid.

The prayer is for a divorce from the bonds of matrimony and to have the marriage dissolved, and proper alimony allowed.

The answer admits the defendant’s belief, that the petitioner would have made an affectionate and prudent wife, if she had been left to herself, and her parents had not officiously and injuriously intervened, and alienated her affections and confidence from her husband, and induced in her a wish to leave him and return to them. The defendant states, that in consequence of that state of things, his feelings were wounded, and his temper, no doubt, more irritable than it would otherwise have been, and that there was not that harmony of sentiment and cordiality between them, nor concert of action, n'eedful for the happiness of married life. But the defendant, positively denies, that it was in any degree his fault, or that he treated his wife with insult or indignity of any kind, much less with violence or an offer or threat of violence. He denies generally and particularly every overt act of that kind stated in the petition; or that the petitioner was ever under the necessity of leaving his house for fear of him, or that she ever in fact left it and staid out of doors all night or at night at ali, *677or at any other time. The defendant denies, as a gross unfounded aspersion, that he attempted to poison the petitioner, and says that he gave her such medicines as were proper in the treatment of diseases under which she at those times labored: the one article being nitric acid diluted and administered through a tube, in order to avoid injury to the teeth, as a tonic, when she was in a state of debility and also as a remedy for salivation : and the other being tartar emetic given in broken doses, to produce long continued nausea and relaxation of the system during fever, and not sugar of lead or arsenic, either of which would have produced death.

The defendant denies the Several charges of adultery, and declares that he does not know several of the females, with-whom criminal conversation by him is alleged. He says,that among other unhappy effects of the poison, infused into his wife’s mind by her parents against him, was jealousy, and that- he was often unable to practice his profession among res-" pectable females, on account of her injurious suspicions and imputations: And he avers, that, during their- cohabitation, he was faithful to his wife and that he hath not lived in adultery since their separation.

The answer further states “ in regard to the prayer of alimony, that, more than two years since, by request of mutual friends, the petitioner and defendant agreed to live separately, and this defendant conveyed to trustees more than one-half of his property for the separate use of the petitioner and the maintenance of herself and the child which he permitted her to retain.”

Upon issues to a jury it was found, that the petitioner had-been a citizen1 of this State for more than three years next before the filing of the petition ; that the defendant,. Lorenzo D.-Wood, separated himself from his said wife Rebecca,- on-the 18th of September,-1840,-and is living in- adultery with-another woman ; and' that the causes of complaint for a divorce existed for six-months next before the filing of the petition ; and that the petit-ioner-has demeaned herself as a virtuous and chaste woman since the said- separation.-

*678The case states, that at the time of making up the issues, the defendant prayed to have an. issue as to the agreement a{¡edged in the answer, for a separation, and the settlement ma<je on ^ petitioner and her child. But the Court refused it, because those deeds were not disputed, and the defendant should have the benefit of them, if they could give him any, upon a motion on the part of the petitioner for a decree, should the issues be found for her. ■

The evidence as to the separation of the parties and the cause of it was, that, when the petitioner left her husband, a peace warrant was taken out against him, and when the constable served it, the defendant asked him what it was for, and the constable told him, “ for abusing his wife” : to which the defendant made no reply. The parties have never lived together since.

On the trial, evidence was given, that the defendant had been guilty of adultery with Rebecca Watson, (mentioned in the petition) before his marriage : that indecent conduct had been seen between them twice during the marriage and cohabitation of the parties, and that, since the separation, the defendant and the woman Watson, have lived in adultery since the Spring of 1842. On the other hand the witnesses, who gave that evidence, were impeached by witnesses on the part of the defendant. No other evidence was given of any adultery. The petitioner declined having an issue' upon any of the allegations of violence, assaults, threats, or personal indignities contained in the petition.

The petititioner’s counsel then moved for a decree for a divorce .from the. bonds of matrimony. That was opposed on the part of. the defendant upon two grounds : the first, that, upon the pleadings and verdict, the petitioner was not entitled to such a divorce: the second, that the agreement for a separation repelled her right thereto for any matter found here.— The defendant then read to the Court three deeds : One was an obligation by the defendant and a surety, reciting that the parties had concluded on a temporary, if not final, separation, and obliging Wood to leave his wife free to remain apart or *679return to live with him, as she should choose, and without constraint from him ; and, in the event of their continuing to live separate, that she should have and enjoy as her sole and separate property, free from any claim by him, whatever she might acquire by her own industry, gift or other means : A second was a deed to the petitioner’s father, as a trustee, for one undivided half of a tract of 100 acres of land in fee in trust for the sole and separate use of the petitioner for life, and then in trust to convey the remainder to such persons as may be her heirs: The third was a deed to a trustee in fee for the other half of the same tract of land in trust, for John William Wood, a son of the parties, and his heirs; but in case the said John William should die under 21, without leaving a child, then in trust for the petitioner during her life, to her sole and separate use, and after her death, -in trust, to convey the same to her next of blood.

All those instruments were dated on the 8th day of October, 1845.

The Court pronounced for a divorce a vinculo matrimonii, as prayed for; but gave no alimony. From the decree the defendant appealed.

Mendenhall and Iredell for the plaintiff.

Waddell and J. H. Bryan for the defendant.

Ruffin, C. J.

The opinion of the Court is, that the decree must be reversed, and the petition dismissed. The object and prayer of the petitioner is singly for a divorce a vin-culo, and, consequent thereon, for alimony ; and even the latter is now given up. We are not therefore to consider, what effect adultery during a state of separation — whether arranged peaceably, merely for want of agreement of taste between the parties, or for their mutual happiness, or brought about by the fault of one or both of them — is to have upon an application for a divorce a mensa et thoro. There is an essential difference between the two kinds of divorce, and there ought to be also in the cases that justify them. For example, even if a husband maliciously desert his wife, or compel her to leave his house, she is not thereby licensed to debase herself, to the *680disgrace of her issue by the marriage, and to the imposing on ^he husband a spurious issue, who may legally succeed to inheritances as presumptively legitimate. It may be very proper, therefore, to relieve a husband in such a case from the obligation to maintain the profligate wife and her spurious issue, and from the danger of pseudo heirs, by a divorce from bed and board. An exemplary wife may in like manner be protected, by a similar divorce, from the coercion of a husband, whose vicious life during separation proves him unworthy of her conjugal society. But the question is very different, when an absolute divorce, in dissolution of the marriage, and destroying all prospect of reformation and reconciliation, is asked for. We have heretofore said, that, upon the language of our legislative enactments, and having a due regard to the interests of families and the public morals, a divorce a vinculo cannot be obtained by a husband for adultery of the wife supervening a separation, occasioned by his fault. Whittington v. Whittington, 2 Dev. and Bat. 64. Moss v. Moss, 2 Ired. 55. Independent of the words “ where either party has separated him or herself from the other, and is living in adultery,” as denoting a separation, involuntary, and unavoidable, at least on the part of the promoter, as necessary to ground a divorce on, there is another consideration entitled to much weight. Divorces a vinculo are chiefly sought, in contradistinction to those a mensa, with a view to a second marriage by the party complaining. Now, the act, Rev. St. ch. 39, s. 9, gives that liberty only to “ the innocent personand the innocence spoken of is, we think, not merely in not living in eodem delicto with the adulterous defendant, but in being free from the fault of failing in the essential duty of marriage; that of cohabitation, conversation, and comfort in health and sickness. Therefore, when the ground of the divorce sought is altogether posterior to separation, it is indispensable that the promoter of the cause should show, that he or,she did not separate from the other party, or, if such was the fact, that it was an unavoidable separation, made necessary by the injurious conduct of the other party.

These principles, declared in previous cases, are decisive *681against this application. Here the wife, as she admits in her petition, separated herself from her husband: in point of fact, she deserted his bed and board, abjured her conjugal engagements, and returned to her paternal roof. It is true the jury have found, that the respondent separated himself from his wife. But that is a finding for the petitioner contrary to an estoppel in the record — her admission in the petition, that, in point of fact, she separated from him, and not he from her, and therefore such finding has no force, and the party’s admission of facts, adverse to the divorce, is binding on her. Moss v. Moss. She states, indeed, that she was compelled to the separation by 1ns cruel conduct, in the various acts of cruelty specifically charged, and that she was forced from a regard to the safety of her life, to fly for shelter to her father's house. But it is an avoidance of the effect of her acknowledged separation, which is . wholly unsupported; and therefore cannot be taken into the case at all. If the petitioner had established the alleged enormities on the part of the husband, we should not hesitate to hold the separation to have been his act and not hers: he would not let her stay, but made her go away. But that is a most material part of the allegations, and therefore no decree can be pronounced for the petitioner, unless upon a verdict of a jury finding the facts, according to the fifth section of the act. There is no such finding. On the contrary, the petitioner expressly declined having an issue upon any single act of the long catalogue of cruelties. We must therefore consider, not only that the charges were not established, but that they were felsely and wantonly made. It is a gross outrage upon the court, to prefer a libel containing such serious charges, as the means of obtaining leave to file it and proceed to prove it, and then abandon the whole series of charges, without attempting to prove one of them, as if such grave accusations were but empty words of course. Such scandalous aspersions ought not to be lightly made; as they seem to have been here. But, at all events, they are to be taken as untrue, as the cause stands. Then we have a case', in which a wife leaves her husband without any reasonable ground whatever, takes up her abode near him, falsely tra*682duces him by imputations of the most unfeeling cruelty, in-eluding repeated threats and attempts to murder her in various ways — by exposure, by actual violence, and by poison : and then asks a divorce from the bonds of matrimony, in order that she may have liberty to marry again, because the unfortunate husband, after her. withdrawing from him, was unmindful of one of her rights, as a wife, and fell into one of the pits of human infirmity. Upon no principle or precedent can such a divorce be decreed. The distinction between the cases in England, where only divorces a mensa et thoro can be judicially decreed, and divorces a vinculo matrimonii under our law, must always be kept in mind. Certainly, such a woman can never be regarded as “ the innocent person” in this family feud, and entitled to dissolve this connexion and form a new one. More respect is due to the decencies of life, not to say to the solemn marital vow, than to countenance such an attempt. If it were successful, it would afford but too strong a temptation to a person, tired of one marriage and desirous of another, by separation to bring about that very -pec-catum, on which the dissolution of the marriage would be subsequently sought.

But it is said, the husband subsequently concurred in the separation, and therefore has no right to complain of it. But that does not better the case. It only proves, that neither of these parties could be entitled to a divorce a vinculo ; for if the separation was not an injury to him, it was to society, and the welfare of the community is to be consulted more than the wishes of the parties. But, in truth, that matter is not before us; for it is not alleged in the libel as one of the grounds for a divorce, nor found by the jury. It is merely brought forward in the answer, and even there it is not pleaded in con-nexion with the divorce directly, but is pleaded particularly in bar of alimony alone. Therefore, our opinion does not proceed at all upon the separation being by agreement, though, if we were to act on it, it would not help forward the petitioner’s claim to this divorce at all. Our opinion goes upon the promoter’s dereliction of duty in separating herself from her husband without any sufficient, indeed, without any cause *683in hia conduct. Such delictum on her part is a bar to divorce a vinculo matrimonii for cause of adultery found by the jury. A divorce a vinculo matrimonii, was that granted in the Superior Court, and, indeed, was the only one that could have been granted ; for the prayer in the libel and the motion for a decree were both confined to such a divorce specifically. Therefore the decree must be reversed, and the libel dismissed with'costs.

Although we have not made it the ground of our judgment, we cannot but notice the extreme vagueness and generality of terms, in which the issue is framed and the verdict expressed, as to the defendant’s living in adultery “with another woman.’’ For aught we can see, this “ other woman” may not only be a different woman from the petitioner, but also a different one from either of those with whom the adultery is charged in the petition. As the libel must make specific allegations, so the issue and verdict must conform to the charges in the libel; else the allegata and probata might vary, and the party be completely surprised.

Per Curiam, Petition dismissed.