{
  "id": 11274098,
  "name": "HARRIET J. FOY vs. THOMAS D. FOY",
  "name_abbreviation": "Foy v. Foy",
  "decision_date": "1851-12",
  "docket_number": "",
  "first_page": "90",
  "last_page": "97",
  "citations": [
    {
      "type": "nominative",
      "cite": "13 Ired. 90"
    },
    {
      "type": "official",
      "cite": "35 N.C. 90"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "2 Ired. 58",
      "category": "reporters:state",
      "reporter": "Ired.",
      "opinion_index": -1
    },
    {
      "cite": "2 Dev. & Bat. 77",
      "category": "reporters:state",
      "reporter": "Dev. & Bat.",
      "opinion_index": -1
    },
    {
      "cite": "10 Ired. 512",
      "category": "reporters:state",
      "reporter": "Ired.",
      "opinion_index": -1
    }
  ],
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  "last_updated": "2023-07-14T16:11:31.390339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "HARRIET J. FOY vs. THOMAS D. FOY."
    ],
    "opinions": [
      {
        "text": "Pearson, J.\nThis is a petition for a divorce. The Court granted a divorce, and from this decree the defendant appealed. The facts were these. The parties were married in January, 1844, and lived together until June of that year, when, as the petitioner alleges, the defendant committed the crime of forgery, and his guilt being discovered soon thereafter, he abandoned \u201c and deserted your petitioner', and left her dependant upon the care and protection of her mother, with whom she has lived ever since \u201c that since your petitioner was thus deserted by the husband, he has lived in the county of Jones, keeping himself concealed as much as possible during the day, and indulging himself in his vices at night, and does not venture to the county of Craven, where your petitioner resided, at the time lie separated himself from her, and. still resides.\u201d The petitioner then avers, that \u201c since the defendant separated himself from her, he has given himself up to dissolute habits, and has been and is living in adultery with a negro woman, or slave, the property of\u201d-. Several other specific charges of adultery are made, but it is not necessary to state them. Upon these allegations, the'petitioner prays for a divorce from the bands of matrimony.\nThe defendant admits, that, in June 1844, he was charged with having committed forgery, but he says, the accusation being made known to his wife, \u201cshe either did not believe it, or if site did, it did not prevent her from living with him for some time thereafter, upon the best and most conjugal terms,\u201d professing, and as he believes, feeling a warm and devoted attachment for'him, and he positively denies the allegation that he separated himself from, or deserted and abandoned the petitioner in 1844 or at any other time; on the contrary he says, although they have not lived together for sometime, \u201c yet he has used every means in his power, to induce the petitioner to perform her duty as a wife, and share his bed and fortunes, but she has abandoned him and refuses to live with him and give him her society.\u201d The defendant avers that \u201che deeply regrets her course of conduct, and he verily believes, that if the petitioner had been left to her own feelings, she would not have deserted and refused to live with him ;\u201d but he says. \u201c she having a competent means of livelihood by the marriage settlement, and large expectations from her mother, has been induced by her and others, unfriendly to him, to disregard her marriage vows, and to refuse to live with him;\u201d that the petitioner \u201chas resided for several years with her mother, which, for sometime, she was forced to do, and, at one time, was actually prevented, by force, from going to the defendant, where he resided.\u201d lie further says, \u201c while he deplores this state of things, and might well palliate any indiscretion, as being brought about by it,\u201d yet he denies the allegations' of his having committed adultery; and he has at all times desired, and still desires, that she should return and live with him, as her duty, as a wife, requires.\nSeventeen issues were submitted to the jury; it is only necessary for the purpose of our decision, to state one of them. \u201c To the third issue, the jury respond and say, that the defendant did separate himself from the petitioner, and live in adultery with a negro slave, named Hannah.\u201d This finding is \u201c general\u201d as to the time of the separation. If it be taken to mean that the separation was in 1844, or at any time before August, 1845, it is directly opposed to the charge of the Court, for his Honor instructed the Jury \u2014 . \u201c taking the evidence to be true, there is no evidence that the defendant separated himself from the petitioner, before the summer of 1845. It will, therefore, be proper for the Jury to confine their attention to what took place after-August, 1845, in order to decide whether the defendant had separated himself from the petitioner, against her consent.\u201d\n\u25a0 We are to take the issues and the finding to be in these words: \u201cThe defendant^ after August, 1845, did separate himself from the petitioner, and live in adultery,\u201d &c. Consequently, there is a variance bdtween the \u201cprobata\u201d and the \u201c allegata,\u201d for the petitioner alleges that the defendant separated himself from her in 1844. So the decree for a divorce is put, simply, on the proof, and not on the ground, that the allegations were proven. In this there is error. An allegation, without proof, passes for nothing, \u2014 proof, without an allegation, passes for nothing. This is the rule in reference to all proceedings in Court; for, without a distinct allegation, the defendant is left in the dark, and cannot be expected to come prepared with his proofs. But, in a divorce case, the Statute requires, not only that the allegations should be made, but should be sworn to. It may be proper to notice the fact, that the petition wras amended, and was not sworn to, as amended. We do not put our decision on that, but we think, clearly, that all the allegations introduced by the amendment, are, for that reason, out of the case. It is said that the allegation is proven, except in regard to the time, and that time is immaterial, \u2014 \u201cit is not the essence of a contract or of an of-fence.\u201d This is, in general, true ; but \u201c time\u201d is sometimes material, and when so, it is just as important to prove the allegation iu reference to it, as anything else; and the question is, \u201cwas it material to fix the time of the separation ?\u201d\nIf a wife leave a husband, and refuses to live with him, without sufficient cause, and he afterwards lives in adultery, .this is no cause of divorce; for, the consequence may be \u25a0 ascribed to her prior violation of the duty of a wife. \u201c No one shall be allowed to take advantage of his own Wrong.\u201d\nIf a husband is accused of a crime, or if he is guilty of it, \u2014 this is no sufficient cause for his wife to refuse to live with him; and she is not thereby justified in a violation of her marriage vow. \u2014 She agreed to take him \u2018\u2018 for better or for worse.\u201d\nThe petitioner alleges that the defendant abandoned her, (that is the most expressive word,) in 1844, This allegation is denied, and the defendant says, he and the petitioner \u201c lived upon the best and most conjugal terms\u201d until after August, 1845, when she was forced by her mother, and other persons unfriendly to him, to abandon him, and to refuse to live with him.\u201d The pleadings, therefore, make this distinct issue : Was the fact, that the parties ceased to live together as man and wife, caused by the act of the petitioner, to which, it is alleged, she was persuaded, or forced, by others, or was it caused by the act of the defendant, he being unwilling to live with her, and rejecting her as his wife ? In reference to this issue, time is material, for the very question is, which of the two was the first, in point of time, who came to the determination, not to recognise the other in the violation of the duties imposed by the marriage 'VOW;\nUpon the next trial, we hope, the issues will be more precise in terms, and in reference to the points put at issue by the pleadings.\nPer Curiam. Venire de novo awarded.",
        "type": "majority",
        "author": "Pearson, J."
      }
    ],
    "attorneys": [
      "Donnell, for the plaintiff.",
      "J. H. Bryan, with whom was J. W. Bryan, for the defendant, submitted the following argument:"
    ],
    "corrections": "",
    "head_matter": "HARRIET J. FOY vs. THOMAS D. FOY.\nAa the allegations in a petition for a divorce are directed by Statute to be sworn to, it is mo're emphatically required in such a case than in others, that the allegations and proof should correspond; otherwise the Court can- \u2022 not decree a divorce.\n\"Where a petition for a divorce is amended, the facts alleged in the amendment must be sworn to, or they will not be regarded.\nIf a wife leaves a husband, and refuses to live with him, without sufficient \u2022' cause, and he afterwards lives in adultery, this is no cause for granting her .' a divorce.\nIf a husband is accused of a crime, or is guilty of it, this is no sufficient cause for the wife to refuse to live wiih him, and she is not thereby justified in a violation of the marriage vow: She took him \u201c for better or for worse.\u201d\nAppeal from the Superior Court of Law of Carteret County, at the Fall Term, 1851, his Honor Judge Dick, presiding.\nThe case is stated in the opinion of this Court,\nDonnell, for the plaintiff.\nJ. H. Bryan, with whom was J. W. Bryan, for the defendant, submitted the following argument:\nThe amendment ought not to have been allowed, especially without being sworn to by the petitioner. The Statute requires, that the petitioner shall state and swear, that the facts, the grounds of her complaint, have existed, to her knowledge, at least six months before the filing of her petition ; and these facts are to be particularly and specially set forth in the petition.\nThese stringent provisions would seem to exclude the introduction of any facts, which were not sworn to, when the petition was filed, and which had come to the petitioner\u2019s knowledge since the filing of the petition.\nThe amendment cannot be aided, even by the express consent of the defendant. \u2014 His confession of the charge would not avail \u2014 for, in cases of this kind, the community is interested, and the admissions of the party cannot dispense with the requisitions of the Statute, and cannot be acted upon either by the Court or Jury. Hansley v Hans\u2022 ley, 10 Ired. 512.\nBut, the petition, as amended, is entirely too vague and indefinite in its charges. It ought to state a perfect case for a divorce, before any proof is gone into. Such is the rule in the Ecclesiastical Courts-in England, which is approved by this Court, in Whitington v Whilington, 2 Dev. & Bat. 77.\nThe particular facts are not charged with their attendant time and place, &c. It does not state how long the separation continued \u2014 nor where the adultery was committed \u2014 nor when it first came to the petitioner\u2019s knowledge. \u2014 All these important matters have no fixed time, but float through a space of more than six years, from July, \u201944, to the filing of the petition, in Sept. \u201950.\nIt may very well be, consistently with the charges in the petition, that the adultery occurred before August, \u201945, at which time, as the charge admits, the defendant had not\u2018 separated himself, &c. . >\nThe finding, which seems to be regarded as material, is, that the defendant separated himself, and lived in adultery with Hannah, &c.; and also, with another woman, &c.\u2014 But when did this occur ? \u2014 before, or after August, \u201945 ? It may have been before any separation, by the fault of the defendant, \u2014 and separation and adultery must both concur. Again,.'the finding of the Jury cannot aid the petitioner, unless warranted by facts, properly charged in the petition. \u2014 The grounds of complaint must bo both charged and proved.\nThe findings on the record are inconsistent and contradictory, In the response to the 12th issue, they find generally, that the petitioner has not separated herself from her husband. After having knowledge of the facts, stated in the petition, she ought to have done so, for at least six months before the filing of the petition.\nTo the 13th issue, the Jury respond, that she has not separated herself more than six months before the filing of the petition. This is, by necessary implication, contradictory to the 12th response.\nUpon the evidence, as stated by his Honor, it appears, that the petitioner was not without fault in regard to the separation. It appears from her letters, that the defendant repeatedly urged her to come to live with him ; and it is Worthy ot remark, that the petitioner has withheld the letters of the defendant, to which hers were in reply. The duty of reconciliation remained on each party. The fault of separation, and the fault of adultery must be on the same side. Moss v Moss, 2 Ired. 58.\nIt is obvious, that the fault of the defendant, in the eyes of the petitioner and her friends, was the charge against him of forgery, which cannot he regarded in this inquiry. If the defendant had forfeited the respect and affection of all the world beside, it was his wife\u2019s duty to cling the closer to him.\nThe marriage of the parties ought to have been proved, as without a lawful marriage, there cau be no adulterv. Guest v Shipley, 4 Ec. Rep 548; and this is analagous to the rule at law, in actions for crim. con.\nThe delay in fding the petition is too long. The only fact, to which a date is affixed in the petition, is the desertion, which is alleged to have bee'n in July, \u201944. The petition is filed in Sept. \u201950. The cause of the delay, if any, ought to have been' satisfactorily explained in the petition. Whittington v Whittington, 2 I). & B. at p. 72-73. Mortimer v Mortimer, 2 Hagg. Consist. Rep. 313, 4 Eng. Ec. Rep. 545."
  },
  "file_name": "0090-01",
  "first_page_order": 98,
  "last_page_order": 105
}