#### NANCY HARRISON *vs.*NATHANIEL HARRISON.

On n petition by a wife for a divorce, the Court will not suffer an issue to be submitted to the jury in such general terms as these : “ Did the defendant, before the petitioner left his hjuse, offer such indignities to her person, as to render her condition intolerable and her life burthensome *V’*The petition must set forth the *facts,*the jury must pass upon those-fact's, and • on their verdict the Court will determine, whether the facts fonud constitute or not a proper case for a divoree.

Appeal from the Superior Court of Law of Haywood County, at the Spring Term, 1846, his Honor *Judge*Peakson presiding.

This was a petition by the wife for a divorce a *mensa et thoro,*and for alimony. It was filed on the 21st of October, 1842; and it states, that the parties married in 1839, and that the petitioner endeavored to perform all her duties as a wife : “ but that, notwithstanding, her husband’s conduct to her became daily more and more intolerable, by threats of violence to her person and charging incontinency, so as to render her life miserable ; that, especially for the last three months of her residence' with him, her treatment from him was cruel in the extreme ; that she was once compelled to leave his house and seek protection at a neighbor’s from the threatened violence to her person from her infuriated husband; and that often in the night, when he Would awake and find her distressed by reflecting on her forlorn condition, he charged her with having illicit intercourse with one Henry Grady before her marriage and attributed her wakefulness to the lashings of a guilty conscience for her past whoredoms ; and that, day after day, in the presence of his children by a former marriage, was she compelled to hear herself called by him the usual appellation of whore.” The petition further states “that the petitioner *487
      *'*bore without a murmur this cruel treatbnent, in the hope that, by inquiring into her character, her husband would become convinced, that the charge was'unfounded ; but that, except in the presence of strangers, his conduct towards her became daily more barbarous, until she became satisfied, that her life would no longer be safe under his roof, and that she then left for-her father’s, ostensibly to have the aid of her female' friends during her approaching confinement with her first child, but inwardly resolved never to return to her husband^ until she had some assurance of a change in his conduct towards her.” The petitioner then avers “that she never gave her husband any reason for his discontents, and that the charge made by him against her reputation is wholly false, and that it was only trumped up by him to cover an ulterior purpose.of driving her from his house, as he knew her character to be good, and had declared* that he did not marry her for any love he had for, her, but through the persuasions of others.”

The answer states, that the defendant , was at his marriage the Clerk of the County Court of Buncombe and resided in Asheville, and that his wife thenUived with her father, John Murry, in the County of Henderson: that after the marriage Mrs. Harrison went home with the defendant and lived with him thirteen months ; and that, for about ten months, they lived in' jiéaee and affection, and she was kind and dutiful as a wife and careful of his domestic concerns ; but that, about that period, she became negligent of her household duties and indifferent to him ; that, nevertheless, he over-looked it, as he did not suspect a want of affection for him, and • attributed her conduct to melancholy and a predisposition to hysterics; ■ that she became greatly dissatisfied with Asheville, and urged him to remove to the neighborhood of her relations in Henderson ; but that he could not do so, as his duties in office and interest required him to reside in Asheville. The answer further states, that her neglect" and indif*488ference increased to such a degree, that he felt obliged to admonish her; and admits that, being a man of hasty temper, he may have done so more rudely and harshly than was becoming. The answer then states, that, a short time before the petitioner left the defendant’s house, her father suggested to them, that, as the period of her confinement was approaching, it would be prudent she should go to his house, where she could have the assistance of her female friends; and that the defendant readily assented, and furnished the necessary means for her going, and did not then entertain the slightest suspicion of any dissatisfaction on her part. Soon afterwards he was informed, by a letter from Mr. Murry, of the birth of a daughter, and immediately the defendant went to Henderson to see his wile and child, and, after remaining with them a night and day, took an affectionate leave of them, being under the necessity of returning to his business. The answer further states, that, when the defendant sat off home, Mr. Murry, the father, accompanied him some miles, and then informed him, for the first time, that the petitioner “ had concluded not to live with this defendant, because” as he said “ her ways and his ways were different.” The answer then states various efforts of the husband, by his personal solicitations to his wife and through her father and a brother-in-law, to effect a reconciliation, by making acknowledgments for any unkind expressions he might have used at unguarded moments — all of which were unsuccessful, by reason, as the defendant believed, of the final opposition of the wife’s father. The answer then denies positively, that the defendant ever offered or threatened violence to the wife’s person ; or that she ever had, to his knowledge, to ask the protection of a neighbor’s house from his threats of violence ; and that he ever called her “ whore” under any circumstances, or accused her of incontinency at any time, or believed her guilty of it. r He says, that, while they were engaged to be married, the petitioner informed *489him. that at one time she had been engaged to one Henry Grady; but that she did not know his character at the time, and, discovering afterwards that he was a wicked man, she broke off the match ; and that, after their marriage, the petitioner resumed the subject' of her engagement with Grady, and then added some, circumstances, which she had before withheld, and induced the defendant to remark, “that no prudent woman, who wished to stand above suspicion, would have conducted herself so,” and that, the defendant states, was the only remark ever made by him to his wife, from which she could infer he intended to make the charge of unchastity.

"When the cause came on for trial, several issues were, at the instance of the plaintiff’s counsel, made up and submitted to a jury, upon the several facts alleged in the petition, that is to say, 'vvhethei- the defendant ever threatened violence to the plaintiff’s person *1*Whether she was ever compelled to leave his house and seek protection of a neighbor, for fear of violence1 to her person threatened by her husband ? Whether the defendant, in the presence of his- children, or at any time, called the petitioner a whore, or charged her, before she left him, with illicit intercourse with Henry Grady before marriage, or attributed her wakefulness to the lashings of a guilty conscience for her past whoredoms ? To those issues the plaintiff’s counsel moved to add one in these words: “ Did the defendant, before the petitioner left his house, offer such indignities to her person, as to render’ her condition intolerable and her life burthensome ?” But the Court refused the motion.

The plaintiff then read to the jury several depositions, as evidence on the other issues. They were those of the father, mother-in-law and sister of the plaintiff, and they proved, in substance, that, after the separation, the wife stated to her familiar friends, that her husband had made accusations against her of fornication with Grady, and said she would not return to live with him, unless *490he changed his opinion on that point, because, unless he did, they could not live in any quiet or comfort. The father, upon the visit of the defendant to his wife after the birth of the child, first communicated to the defendant information of his wife’s statement; and, in reply the defendant, after expressing his surprize and mortification, stated to Mr. Murry, that, before their marriage, his wife had informed him of her engagement to Grady, and that he, Grady, had travelled in company with her on one occasion, while they were engaged, from Henderson to Macon County on a visit to her sister ; but that the match had been broken off by the opposition of her father, who knew Grady’s character ; and that the defendant further stated to him, that, after the marriage, his wife represented to him, that, during the engagement with Grady, he attended her three times on visits to Macon, aud that o ice they met on the road, after she had left home ; and that he considered Grady a dissolute man, and told his wife, that her conduct was very imprudent and censurable and unbecoming a virtuous woman. Upon being asked, whether the defendant charged his wife with incontinence, the witness, Mr. Murry, replied, that he could consider his observation nothing less, as he had admitted he had complained of his wife’s keeping Grady’s company improperly, and did not deny the representations of his wife, that he had accused her of incontinence. The other evidence was much of the same character; and all the witnesses proved, that the defendant often said, that he never discovered any evidence of unchastity in his wife, while she lived with him, and was importunate for her return to him.

The Court instructed the jury, that the evidence did not support the issues on the part of the plaintiff, and thay found accordingly. The Court dismissed the petition and the plaintiff appealed.

*N. W.*yVoodfin, and *Francis,*for the plaintiff.

*491
      *Avery,*for the defendant.

Ruffis, 0. J.

The Court is of opinion, that the instructions to the .jury were right. There is no pretence, that the material allegations of violence or threats of violence by the husband to the wife are true, dr that she was compelled to leave his house, through fear of him. The remaining allegations of specific facts are, that the husband used the opprobious language to the wife, charging her with unchastity, as set out in the libel and the issues. There is no evidence to'the fact of any altercation between the parties, or improper language used by the one to the other. The only evidence is that of a subsequent conversation between the husband and the near relations of the wife, in which he makes admissions, that some things had passed between them, which were calculated to produce in her mind an impression, that he harbored suspicions of her regard for a former suitor, and, perhaps, had not entire confidence in her previous purity of mind and prudence. But, although the father, with, perhaps, an excusable tenderness for his daughter’s honor, says he could understand, from his conduct, nothing less than that the defendant had accused his wife of incontinence, yet that is stated, merely as a matter of inference from the impressions, which the wife’s communications to him, of her associations with a dissolute man, had made on him with respect to her sympathies with that person, and her prudence, as a discreet and modest maiden, in indulging and exhibiting those sympathies, in the manner she did. It does not appear, that the defendant ever admitted, that, either in her presence or elsewhere he applied to the wife the very gross epithet of “ whore,” or imputed the actual guilt of criminal conversation ; and he swears positively that he never did under any circumstances, nor did he entertain such a belief. Even upon the hypothesis, that such an occurrence between husband and wife, as that supposed, would justify her in leaving him without ex*492planation or notice, and would entitle her thereafter to a decree for separation and maintenance — a point we do not decide — yet the evidence, here offered, established no such case, and could not authorize the jury to find it.

The Court likewise concurs in the opinion, that an issue ought not to have been raised, in the general form of an enquiry “ whether such indignities to her person as rendered her life burthensome” had been offered to the wife by the husband. It is for the Court to judge, what are “such indignities.” The statute requires “ that the material facts charged” in the bill shall be submitted to the jury; and it is their whole office to respond as to them. It is clear, that a divorce could not be granted upon a libel, which chai’ged *only,*that the husband offered such indignities to the wife’s person as to render her condition intolerable or life burdensome, without alleging any overt act of indignity. It is therefore a finding of facts, which constitutes indignities, legally speaking, which alone can entitle the plaintiff to a decree: otherwise there always would be a surprize on the defendant.

Per Curiam. Decree affirmed.