#### RUTHEY ANN HANSLEY vs. SAMUEL G. HANSLEY.

On the trial of issues directed by the Court, upon a petition for a divorce, the mere confession of the husband, that he was guilty of the adultery charged, is not admissible evidence.

A divorce a vinculo matrimonii will not be granted, unless it is alleged and shewn that the husband or wife lived in adultery, after the separation had taken place.

Appeal from the Superior Court of Law of New-Hanover County, at the Spring Term 1848, his Honor Judge Caldwell presiding.

This is a suit instituted by Ruth A. Hansley against her husband Samuel G. Hansley, for a divorce a vinculo matrimonii, and for alimony. The parties were married in 1836 and lived together until August 1844 ; when the wife left her husband and went to reside with her brother in the same neighborhood and has lived there ever since,

*507The petition was filed on the 25th day of March 1845. It states, that the “petitioner lived for many years the wife of the said Samuel, enjoying much happiness, and fondly hoped to do so for many years yet to come, as she cheerfully fulfilled all the duties of an affectionate wife, until the conduct of her husband became so intolerable that it could no longer be endured: that, without any cause known to her, her husband took to drink, and, while in that state, would commit so many outrages against the modesty and decency of the petitioner, that she refrains from repeating them : that the influence of his intoxication would last sometimes for a month ; all of which time the conduct of the said Samuel G. towards the petitioner would be intolerable ; and the petitioner was often cruelly beaten by him, and his whole course of conduct towards her would be so entirely different from what she might have reasonably anticipated, that he rendered her life burdensome and too intolerable to be borne, from a habit so well calculated to destroy the reason, the affections and all the social relations of life, and to which the petitioner must attribute this brutal conduct of her said husband : that for weeks the said Samuel G. would absent himself from the petitioner during the whole-night, although during the day time residing on the same farm, while so absenting himself; that it has come to the knowledge of the petitioner, that her husband did habitually, while so absenting himself from the petitioner, bed and co habit with a negro woman named Lucy, belonging to him : that for some time previous to this fact coming to her knowledge with that degree of certainty, upon which she could rely, her suspicions were aroused, that such must be the fact; but that, not being able to prove the charge, and not being satisfied to abandon her husband until the proof could be clearly satisfactory to her own mind, the petitioner tried to endure, as long as it was reasonable for any wife to endure, the conduct of her *508husband ; and that, during all the said time, her husband not only abandoned her bed entirely, and bedded with the said negro Lucy, but he deprived the petitioner of the control of all those domestic duties and privileges-connected with the house, which belong to a wife, and placed the said Lucy in the full possession and enjoyment of those privileges and duties, and insulted the petitioner by openly and repeatedly ordering her to give place to the said negro, and saying that the petitioner was an incumbrance, and encouraged the said Lucy to treat her also : that, when the petitioner would no longer endure these things, and became entirely satisfied of the cause of such treatment, and of the truth of her previous suspicions, the petitioner abandoned her said husband : that, besides all this, her said husband, not satisfied with the treatment as above set forth, would go from home and take with him the keys of the house, and deprive the petitioner of food for two or three days at a time, and of every comfort, to which, as a wife, she was entitled: that often he would, at night, compel the petitioner to sleep in bed with said negro Lucy, when he would treat the said Lucy as his wife, he occupying the same bed with the petitioner and the negro Lucy : that from the cruel and severe treatment of her husband towards the petitioner, she was afraid to resist or to decline so occupying the same bed with her husband and the said negro woman : that, when it was not agreeable to her husband to permit the petitioner to occupy the house, he would often lock her out of doors and there compel her to remain, during the whole night) unprotected and exposed to all the trials incident to such a situation: that she, at length, abandoned the residence of her husband in August 1844, and has made her home with one of her brothers ever since : and that, since her knowledge of the adulterous conduct of her said husband with the said negro Lucy, the petitioner has not admitted *509him to conjugal embraces, and is resolved never again so to do.”

The petition then sets out the husband’s estate, with a view to alimony, and it prays for a divorce from the bonds of matrimony and for a suitable provision.

The answer admits, that, at one period the defendant was intemperate and in the habit of intoxication ; but it states, that, for several years before his wife left him, he had been perfectly sober. The defendant also admits that he chastised his wife once: but he denies that he ever did so but at that time, or that that was a violent or severe beating: and he says, that he immediately regretted having done so, and acknowledged that he was wrong and made the most humble apologies to her therefor, which he thought reconciled her: but that on the same night she abandoned his house. The answer then denies all the other allegations of the libel specially.

Upon issues submitted to a jury, it was found, that the parties had been inhabitants of this State for three years immediately before the filing of the petition : that the defendant, by habits of adultery with his slave Lucy, by degrading his wife, the petitioner, by beating her,by insulting her, and by abandoning her bed for that of the slave Lucy, rendered the petitioner’s life burthensome, and her condition intolerable, so as to compel her to leave his house, and seek an asylum elsewhere: that the defendant did separate himself from the petitioner and live in adultery with the slave Lucy : and that was known to the petitioner for six months previous to filing the petition : that the petitioner always conducted herself properly as a wife and a chaste woman: and that the petitioner had not admitted the defendant to conjugal embraces since her knowledge of his adulterous intercourse with the said slave Lucy.

Upon the trial, in order to prove that the defendant was living in adultery with his own slave named Lucy, the *510plaintiff offered evidence, that the defendant had a female slave, named Lucy, and that she had a child ; and also of acts of familiarity on the part of the defendant with the said Lucy, and that she acted as a sort of manager of his house : and furthermore, that, in conversations respecting this suit, the defendant said, that he would spend every thing he had in defending it, except the said Lucy and his child; and that, in a conversation between a brother of the petitioner and the defendant about a reconciliation between the parties, the former said to the latter, if he would sell Lucy he did not know what the petitioner might do as to living with him again, and that the defendant replied thereto, that he would part with all the property he had before he would with the said Lucy and his child, and that the petitioner might stay where she was. Objection was made to the admissibility of the defendant’s declarations, but, as it was not suggested, that those declarations were made by collusion, the Court allowed them to go to the jury. There was a decree for a divorce a vinculo matrimonii, and for the costs against the defendant : and an enquiry was directed as to the settlement it would be proper to make on the petitioner ; from all which the husband was allowed an appeal.

Strange, for the plaintiff, submitted the following authourities:

Greenleaf’s Ev., Sec. 108, 2 Phil. Ev., Hill & Cowan’s notes 29, note 298 to page 156. Loveden v. Loveden, 2 Hagg. Con. Rep. 1.

W. Id. Haywood, for the defendant.

Ruffin, C. J.

The divorce act requires all the material facts charged to be submitted to a jury, upon whose verdict, and not otherwise, the Court is to decree. It excludes, by necessary implication, from the consideration of the jury. *511admissions in the pleadings, and, consequently, any made orally on the trial. The purpose is to prevent collusion. That reason extends also to confessions in pais, when relied on to found a decree for divorce ; for if they could be received, it would obviously defeat the requirement, that the facts shall be found by a jury, independent of their admission in the pleadings. It is not doubted, thaf, under circumstances, what a party says may, as well as his acts, be presumptive evidence of adultery. Thus letters written in the course of an intrigue, attentions paid and received, or terms of endearment used between the pair to whom guilt is imputed, assignations for private meetings, are admissible as being in their nature overt acts of criminal conversation So, if a man and woman live together and act and speak upon the familiar terms of cohabitation, and, if the woman have a child, the.man habitually treats and speaks of it as his child, that also -would be evidence. But the acknowledging of the child is not received by itself as a confession merely, that he is ,the father,-but as one incident among many connected .with the intercourse of man and woman, and giving a criminal characterto it. judging from the ordinary indicia, in the open conduct of men of their secret acts. It is, in . the nature, of an overt act, which tends to show the private habits of the man and woman. But that is very different fr.om. the, mere declaration of this defendant to strangers on two-different,.occasions, that the child was his, without ..connecting them with any conduct of the defendant towards the child. They seem to be nothing more than naked confessions of. a fact, from which adultery is, inferred, and, as such, were not competent. But it is said, there was no suggestion, that these declarations were .made . collusively ; and thence,, that it is to be considered, .the Court had .no right to infer it. ;It is to bfe,repjetnbei-ed, nhoweyer. that supposing the.¡collusion,, it. w;.i;ll certain]y not be suggested by.either, party, and thfre -is po,,qne; pise *512to make the suggestion or establish the truth. The question, therefore, cannot turn on that, but it turns on this : that there is danger of collusion. Therefore, in order- to guard against it. it is the office of-the Judge himself to exclude such evidence, though neither party objects to it, but both should desire it to be received. The public is concerned, that divorces should not be improperly decreed; and this rule in particular is intended to protect the public morals, and promote, the public policy, rather than to guard against the effects of perjury on the party. For this reason, a venire de novo would be awarded, if there were nothing more in the case.

The Court, however, is of opinion that a sufficient case does not appear in the record to authorize a divorce a vinculo matrimonii, which is that granted and the only one prayed for. The jury, indeed, found that the defendant separated himself from his wife and lived in adultery with his slave ; and, if there were any corresponding allegation in the libel, there would be a case to. render the decree right. But we think there is no such allegation. There is such a want of precision as to the dates and order of events charged, that one cannot say exactly, how far the allegations were meant to extend. The only periods given are those of 1836 for the marriage, and August 1844, for the separation of the petitioner from her husband and going to live with her brother. Everything, stated in the libel, is stated as having occurred between those periods. There is no separation of the parties alleged until that in 1844, when the petitioner left her husband’s house, and there is no allegation of any adultery by him after that event. As far as we can understand the petition, it states that between the periods mentioned, the parties lived together on the husband’s plantation, and for many years lived there happily :-that he became, at some time, in« --temperate, and then was harsh, insulting and cruel to the wife — at times beating her: that.-occasionally, for a *513while, and, afterwards, for weeks, he absented himself from bis wife’s bed at night, and, as she suspected for some time, and afterwards ascertained, he spent those nights in bed with a negro woman he had on the same plantation : that he did himself, and allowed that woman to treat his wife with contempt, depriving her of all authority as mistress of the house, and conferring it on the negro : that, afterwards, instead of going to the house of the black woman, he brought her to his own house, and frequently made her and the wife sleep in the same bed with him, and in that situation he had carnal knowledge of the negro: that at other times the husband would not allow the wife to sleep in the house, but turned her out and locked the door against her and kept her out all night; that he at some times went away, carrying the keys and leaving her without food for several daj’s together : and, finally, that she never admitted him to conjugal embraces after knowledge of his adultery, and abandoned his house in August 1844. Now, upon upon those allegations, and upon such parts of the finding of the jury, as are consistent with them, the wife would be entitled to a decree for separation and alimony. The grossness of his debaucheries, and the cruelty and indignity, with which he treated his wife, made her condition with him intolerable and authorized her to escape from his society and control. In such cases the third section of the act allows a divorce a mensa et thoro to be granted, so as to protect the wife from the efforts of the husband to force her to-return. But those are not sufficient causes for a divorce from the bonds of matrimony, under the second section. That does not authorize such a divorce for cruelty, nor for every act of adultery, nor even for habitual adultery, provided' the parties continue to live together. On the- contrary, the words are, that when “either party has separated him or herself from the other and is living in adultery,” the injured person may be divorced a vinculo'. In addition, the *514eighth section enacts, that if the party complaining admitted the other either to conjugal embraces or society, after knowledge of the criminal fact, it shall be a bar to a suit for divorce for cause of adulter}’’. Now, in the first place, it is certain, upon the face of the libel, that the wife continued to live with the husband, not only after she knew such circumstances, as created the most violent presumption of his guilt, but after the actual knowledge of it by being present and in the same bed at the fact. There is no statement of any act of adultery, which we can say or suppose was posterior to those, to which the wife was thus privy. As they took place before the separation and she was privy to them, a divorce a vinculo cannot be founded o'n them by themselves. We are far, however, from thinking those defaults of the husband purged by the conduct of his wife. On the contrary she fully accounts for her finally leaving his house, and divested that act of the appearance of fault on her part. After such a separation, forced on her by the debasing depravity, violence and other outrages of the husband, she might well insist on any supervening criminality on his part. For, so far from being precluded from making complaint of the repetition of the fault, the guilt of the repetition, after such forbearance — not connivance — on the part of the wife, would be aggravated beyond that of the first fault. We shall hold, therefore, that she might insist on adultery with this slave, supervening the separation thus forced on her. From the evidence respecting the child, about whom the petition would hardly have been silent, if it had been born when it was filed, and from the findings of the jury, it may be presumed, that in fact the criminal and disgraceful connexion between this man and his negro woman did continue after the petitioner left him. If so, it is unfortunate that it should have been omitted in framing the petition. That it is omitted, is quite clear; for, the petition gives no- account of the *515husband’s life after the day the wife left him, excepting only that he had not subsequently been admitted by her into conjugal embraces. The finding of the jury, therefore, that the husband separated himself from his wife and' is living or afterwards lived in adultery, and that she' never admitted him into conjugal embraces after her knowledge of that adultery, can have no influence on the decree, because it is incompatible with the petition, or, at least, is without any allegation in the petition of such supervening adultery, to authorize if. That the existence of such adultery in fact is indispensable, is clear from the words of the act “is living in adultery” after the separation But it is equally clear from the reason of'the thing. For, the law docs not mean to dissolve the bonds of matrimony and exclude one of the parties from marriage, until there is no just ground to hope for a reconciliation. For that reason a divorce of that kind is denied, when the parties give such evidence of the probability of reconciliation, as to continue to live together. And even when there is a separation, if the offending part}' should reform forthwith and lead a pure life afterwards, the law does not look upon it as hopeless, that reconciliation may in time follow the reformation. It may not be a case, indeed, in which the law will permit the husband to insist on a restoration of the conjugal rights of society and cohabitation, by compelling the wife’s return. But, on the other hand, it is not a case in which it is past hope, that the wife may not, upon the strength of ancient affections, and a sense of duty and interest, be willing of herself, at same time, to partake of the society and share in the fate of her reformed husband; and, until that be past hope, or, at least, a continuing impurity of life, after separation, so far impairs the hope of reformation as to leave no just expectation of it, the law will not cut oil tho parties from the liberty of uniting. In the present case, there is noth*516ing in the petition to shew, that the husband and his former paramour have ever seen each other since the day the wife left the premises. Consequently, the decree was erroneous, and the petition ought to have been dismissed, notwithstanding the verdict; which will be certified accordingly.

Per Curiam.

Ordered to be certified accordingly.