#### BENJAMIN DAILEY *v.*NANCY DAILEY.

Divorce — adultery—circumstances—obtuse moral sense in virtuous women — alimony allowed where wife in fault* t&prevent the temptation to vice.

On a* charge of adultery, if the facts proven of imprudent conduct with'a man, be suchas cannot be reconciled with probability and the innocence of the parties, they will establish the charge, though the court is satisfied that in the particular instances of imprudent conduct testified no adultery was committed,

"Where virtuous women, witnesses, are present at the time of adultery, and afterwards keep up their intimacy with the adulteress, it evidences great moral obtuseness, if not the loose habits of society.

When a divorce is decreed for a single act of adultery in the wife, and there is hope of reclamation, and the property was earned by the parties in wedlock, alimony will be allowed, for the wife must not be turned loose to prostitution or starvation.

Divorce, — Charge adultery with one Sims on several days and nights.

It appeared in evidence, that these parties having been married, and living together in harmony until a few months back, having four children, the youngest an infant. A short time since, the husband left his wife on their little farm, where she still resides, but he has since sold the farm and most of the personal property. Both the parties have sustained good reputations, until a few months past, the charges against the wife have become the subject of conversation. The husband continued to reside with the wife some time after he was informed of the charges against her, sleeping part of the time with her, and the residue in another bed in the same room. The house having but one lodging room.

*515
      *Mrs. Dunham,*a respectable looking elderly lady swore. That one evening, a year or two ago, she visited at Sims’s her neighbors, in the forepart of the day, and in the afterpart of the same day at her other neighbor’s, Mr. Dailey’s; she stayed all night at the latter place by invitation of Mrs. Dailey. There were two beds in the room, standing near to each other, with a trundle bed under one for the .children. Just before night Sims called in and stayed a few moments and went away; while he stayed, there was some talk about the robbery of Morris’s store — but he was in too much of a hurry to give much information. Mrs. D. and witness retired to bed. Mrs. D. and her young child in one bed, with the other children in the trundle bed — and the witness in the other. Shortly after Sims returned, knocked, and Mrs. Dailey got up and opened the door and let him in — she was partly undressed. We both got up and sat with him talking at the fire some time, which we uncovered. He blew out the candle, and witness lit it again, and shortly after went to bed. Mrs. Dailey took a book and sat reading. Sims coverd up the fire and went to the bed in which witness lay, sat down upon it, and pitched at witness with impudent and rude conduct, — witness told him to *go*home about his business to his wife, where he ought to be, and drove him off. Sitos blew out the candle. Mrs. Dailey went to bed with the child, while he was there. Shortly after belay down on the bed where Mrs. D. was, without taking off his clothes, or getting under the bedclothes, as witness knew. Witness saw nothing improper between them before, and did not look at Mrs. D’s bed while he was upon it, but once heard them whisper, and once heard a little rustle of the clothes. He lay about an hour,, and got up and went away. As he got to the door witness asked him what he thought his wife would say to his staying away till that time of night — he replied, she would think he was in town. After he left, witness asked Mrs. D. what she thought of herself? but said nothing more to her about their conduct. She continued her intimacy with them, though she told Dailey of it several weeks after.

*Miss Riggs,*a girl about 20. Had lived at Dailey’s house nine weeks. One night just at dark, she was engaged at the smokehouse, but went into the house. Mrs. Dailey and Sims were lying on the top of the bed together, doing nothing at all as she saw.— Mrs. D. got up — he lay still. Witness went out again and'returned soon, when they were both up. Dailey was then in town. Another evening Sims came, and asked where Dailey was, and was told he was in town. Witness went early to bed with one of the children, *516leaving Mrs. D. and Sims- up — slept awhile — waked up with the child, got up and lit candle to go- out with child, Mrs. D. and Sims were lying on the bed together, his clothes were on, and witness is not certain they were under the bedclothes. Witness went out with the child, returned, blew out the candle and went to bed again;, and after lying awhile, heard Mrs;- D. say in a whisper, Sarah would hear them — he replied no, he guessed she was asleep — they spoke in whispers — witness heard no motion- of the bed or rustling of clothes. Dailey was a bricklayer, and generally absent at his work in town till 9 or 10 o’clock at night, and-Sims frequently at the house. At another time Sims at the house in the day time, and Mrs. D. started to go and visit Mrs. Sims. Sims went and helped her child over the orchard fence. Witness stood in plain sight 100 yards off with the other children by the house. After they got over the fence, they lay down together by the fence, and witness went into the house, and did not- see what they did, or if any thing. Witness continued to live there'several weeks afterwards, and came to live there again' at a subsequent time.

*Samuel Wpolley,*was much about the house, and frequently stayed there all night when Dailey was away, at their request. Sims was frequently there, though he never saw any improper conduct between them, Mrs. D. was very kind to her husband. One evening after Sims- had been there and gone some minutes, Mrs. D. said she must have a drink of water, and went out, witness followed her out. Sims was crouched down near the fence,, not far from the house; witness spoke to him two or three times without any 'answer, when he *roused up,*answered, and went off home. Dailey first heard of difficulty in June, and left his wife in August.

Attempts were made with little success- by showing that Miss *Riggs said*when examined on a former occasion, that Dailey told her what to say, or to swear before the magistrate what she- told him. A witness or two were called to prove the petitioner’s bad conduct without success- The parties had about 7 or $800 worth of property mostly earned during coverture. *The*infant with the mother, was born several months after they separated, and was a female.

*Fox,*for the petitioner,

*Fishback,*contra.

Weight, J.

This case is not free from difficulty. The-testimony of Mrs. Dunham, Miss Riggs and Woolley, clearly show very imprudent conduct on the part of Mrs. Dailey with Sims, and excite strong suspicion that an adulterous intercourse was kept up be*517tween them for some time. There are, however, strong counteracting circumstances. That a woman of reputation, the mother of a family, living with her husband, receiving from him kind treatment, and reciprocating his affection, should prostitute herself in the presence of a neighboring respectable and virtuous lady, (as was the case if adultery was committed when Mrs. Dunham was present) and that a virtuous woman, a visiter, should have witnessed such a crime, and passed it off in a joke with the adulterer, when he rose from the criminal embrace of his neighbor’s wife, renew the joke with the adulteress after he was gone, and afterwards keep up her intimacy with her, is indeed singular, and leads to the belief that the witness did not believe any crime *perpetrated*at that time. The conduct of Miss Riggs is not more easily reconciled to the belief that she was a spectator of an adulterous intercourse; otherwise, virtuous herself, her indignation would have been roused, and she would have felt the place an improper one for her to continue in. Neither of these ladies appear to have been at all shocked, or called upon to remonstrate with the guilty, or forbear their usual intercourse with her. If crime were perpetrated in their presence, their own moral perceptions were very obtuse, or they would have felt the association unsuited to virtuous females, except for remonstrance and efforts to reclaim the guilty. It would seem certain that whatever was intended, no crime was actually committed when Woolley was present. Yet we cannot resist the belief that these parties had an adulterous intercourse, for no otherwise, can the outward appearances be reconciled with probability; and the conduct of the ladies who testified must be accounted for only upon the ground of some prevailing habits of the society about, which blunted their moral sensibilities. We dare not hold such conduct as that of Mrs. Dailey innocent; but we hope this is a solitary instance of bad conduct with Sims and that she may be reclaimed.

A divorce is decreed, the husband to have all the children but the youngest, and the wife to keep that one. As the property was earned by them jointly, and as she must not be turned out to prostitution or starvation, he will pay her $200 alimony, leave her what personal property she has, and pay the costs.