*Abbeville.*

Heard by Chancellor James.

#### Ann Taylor, per prochein ami, *vs.*Walter Taylor.

case xvsny,

The charge of great personal ill usage by the husband to the wife, ánd slander of her character being made out fully, and no evidence of any criminal conduct on her part, the court decreed alimony ; though tile answer, supported by some evidence, denied the ill usage in some nespects, palliated it in others, and recriminated in others. Oifers to receive back the wife, do not necessarily prevent the allowance of alimony, unless the court is satisfied that the wife may return home in safety, and will be received and treated kindly, as a wife ought to be.

Mes. Tayxor filed her bill against her husband fow the recovery of alimony, alleging sucb extreme ill usage by her husband, that she was compelled to leave his house and to live apart from him.

The answer of the defendant denied the allegation in part, palliated them in some respects, and recriminated in other respects.

The case came t© a hearing, and much evidene was given on both sides, and the case was argued by the counsel. The chancellor states the evidence fully in his decree, which he delivered aftpr the argument.

As this was* a case of great magnitude, and the time for trying-it short, the court endeavored to confine the counsel as much as possible to twq points : First,— Whether, what is termed in the civil law sievitia, and which is translated by judge Blackstone, intolerable cruelty, had been fully proved agajnst the husband. Se - eond, — Admitting it to be proved, whether complainant would be entitled to alimony, after the repeated offers of defendant to take her back, and cohabit with her as his wife. '

DECREE^

The first evidence adduced to prove the ssevitia or cruelty of the husband to his wife, is a commission under which John Taylor, father of the defendant, Hugh Nes-bit and Dr. Anderson Watkins have been examined. •

John Taylor*, the defendant’s father, deposed, that about two or three years ago he. was pree&nt at (Men-*168dant’sbouse, and saw him throw a stool at complainant which struck her on the breast, and occasioned her to fall back on the floor. That bo heard complainant’s character called in question by her husband 5 but deponent has always considered her a chaste and virtuous woman.

JUNE, 1811.

The evidence of Hugh Nesbitt and Dr. Watkins, Will be more properly considered hereafter.

Mrs. Sturgenncgger, the sister of complainant, lived with complainant and defendant from lf95 til 1804, and save several instances of his abuse of her. Once, defendant dragged complainant up stairs by the hair, and locked her up in a room all night: — that witness once, saw the marks of a whip upon complainant, as she- was told by her it veas. She did not actually sec him whip her, hut bus seen him take a whip to whip her, for going to see, her cousin, Mrs. *Myers,*who was dying;. That witness has heal’d defendant repeatedly call complainant, a damned strumpet.

James Paiiton has stated, that lie staid at defen» dant’s four or íi vo months; that in March twelve-month, the witness, the defendant’s father, his daughter and Miss M. Taylor, were, all present at breakfast with complainant and defendant. Witness asked defendant, it being Sunday, if lie veas going to cbfirch ? Ifo replied, no; for that his house was in too much confusion : his wife said, if the house was in confusion, he was the proper person to restore, it to order: and that immediately the defendant flung his knife and fork across the table at complainant, and struck her on the breast with them. Complainant then ran out of doors, and defendant after her; — the young ladies shrieked, .and hogged deponent to interfere; he ran to the bottom of the steps, and saw def.Vidant raise his hand as if to strike, and complainant fell, hut the body of defendant intervening, he, did not see the blow. The witness caught defenda nt, and the young ladies came to the assistance of compHünant: and while they were doing so, defendant said she, deserved to be kicked, and immediately kicked her. Mrs. Taylor generally conducted herself with prudence and *169attention to her family, and the causes of dispute arose from the husband.

Complainant’s counsel were about to prove other instances of harsh usage, as he said, by six other witnesses, hut the court directed him now to confine himself to the last outrage alleged in the bill, to have been committed against complainant on the 4th of August last.

Allen Nesbitt, the son-in-law of complainant, said, she had taken refuge in his house three several times, and stated circumstances after what has been mentioned, which do not appear to be highly material: but the last time she came to his house (in August 1810,) with Jolm Bracket, the complainant was then very low, and lay in a cradle some time before she could go up stairs — - and she had a cut on her lip, which was all that was to him perceivable. That a few days after, witness went to the house of defendant, and ho said, he had traced her steps into the woods, and believed he could prove her guilty of infidelity ; and that he had given her a complete kicking, where it could not be easily discovered, "Witness had also -other conversations afterwards, in which the defendant stated that he and one Barnett had watched his wife, and saw a man have carnal knowledge of her.

Hugh Nesbitt deposes, that in July or August last, he had a conversation with defendant in his own house, and he observed he had had a difference with complainant, and she left the house and he followed *her;*but did not abuse her further than by a kick or shove of, the foot, which did not put her ■’off her feet. He also made insinuations against complainant’s character, whichHvitness did not *believe;*and he says, lie has always believed her to be virtuous and cxemp'ary in her conduct;

Mrs. Clarke, sister of complainant says, that eight days after the last time that complainant went .to Allen Nesbitt’s, she went to visit her, and never saw such bruises. That her lip was cut and one of her teeth loose; and Mrs. Williams,'!: who was present, said to them, that if they did not send for the doctor Mrs. Taylor’s. *170wounds would mortify. That accordingly a doctor was. sent for.

Dr. Anderson Watkins, ‘deposes, chat about the 15tli Augiistlast, be was sent for to Alien Nesbitt's to see Mrs. Taylor, — that he found her then walking about; that some of the bruises, said to be the worst, were exhibited to his inspection ; — one, a little inside of the left lower extremity, a little above the knee, he found to bo á contusion or bruise, extending from four to six inches in length and breadth : though much extravasated blood was under the skin, the skin itself was not broken. One other contusion or bruise was observed, on the other lower extremity, though not of equal extent with the former, which, with a small cut on the lip and a slight bruise on the face, were all the marks of violence he saw-. — .but that Mrs. Taylor yielded with reluctance to his examination.

Mrs. Nesbitt, wife of Allen Nesbitt and daughter of the complainant, states, that her mother came to their house on the 4th August 1810, and was, very ill, complaining much of her bruises — ’that two of these were larger than common; — she thinks that if her mother would return to her father it would terminate in her death ; witness don’t know what might be the effect of some unlucky blow. After this observation, the witness appearing to be much overcome, the court requested complainant’s counsel to desist from examining her further, and defendant’s counsel did not cross examine.

Defendant’s counsel introduced twelve witnesses :— The first, John Brae kit, a nephew of defendant, ap, peared to be called to impeach the testimony of Mr. Ban-ton, and to put another face on the matter that took, place on the 4th of August last. His evidence to contradict Panton was altogether negative, and therefore 1 shall not notice if. But as to the affair of the 4th August, he states that he was present at dinner, and complainant upbraided the Taylor family, saying none of them made good husbands *;*some contention arose between them, and she retired into the garden, but witness did not see defendant strike her. That defendant went'

*171and told ber to come out from the garden, and she came out, and in attempting to jump over the sharp pailings of the garden, fell into the garden and bruised herself. That he saw a mark upon her lip — that he went with his aunt to Mr. Nesbitt’s ; and that his uncle sent him there with his aunt on horseback.

John Fleming was called to contradict the testimony of A. Nesbitt, 'to a point not here stated $ but as his evidence as to that matter1, was also negative, I shall not notice, it.

Flemming was for about fifteen months overseer for defendant. He says complainant’s temper was high, ■and they quarrelled because complainant would persist in visiting her relations, who were the enemies of defendant.

As this order not to visit her relations, among whom were her son-in-law and daughter, appeared to he unreasonable, the court suffered defendant’s counsel to examine witnesses, as to the extent of that enmity, but found nothing in it sufficient to impeach the credibility of: complainani’s witnesses. . ,

However, Dr. Walter Taylor and Ins wife deposed, that they heard Allen Nesbitt say, when they advised Mm to take no part, that he was determined to take his ¡mother-in-law’s part, and that he would have revenge against his father-in-law. These witnesses also stated, that they thought a prudent woman might live happily witli defendant, and advised complainant, as it was her husband’s wish, to give up her own relations. Mrs. Taylor, the witness, also stated, that complainant was jealous of her husband, but she saw no cause.

Mr. Shinholtz was twenty years acquainted in defendant’s family, and never saw him maltreat his wife. He knew of some quarrels between them, and thinks complainant tolerably high tempered. These quarrels arose after defendant’s disputes with his wife’s family.

Mr. Neal deposes to the same effect.

Mr. Carstlefin was present at a dispute, between (hem at breakfast, and exhorted them, at considerable length to peace 5 after he was done, defendant held out *172Ills band, and said to her, if you will be a good wife, I will be a good husband; but she said, I have been a good , , , ... , . ° wile to you, but never will be again,

Jerry Minor, a boy, lived at defendant’s two years, and left him about a year ago- There were many quarrels between them while he was there, and these were commonly begun by her. Sometimes she sent him with friendly messages to her relations.

Mrs. Susannah Taylor and Ann Flint, examined upon commission in Georgia, depose, that the conduct of complainant to her husband, has been of late contradictory, ill natured and irritating.

Mr. Galphin, a relation, after he heard of the affair of the 4th August last, called on the defendant and asked if he was willing to accommodate affairs with his wife ; he agreed to do so, on certain terms, which he stated to the witness, and included in a letter, which he wrote to complainant, dated 23d April, 1810,- in which he offers her a room and closet in his house, and the use of the servants in common — tells her, she may eat at his table, and entertain her friends, that may come in the usual way, but not his enemies; or, if she was not pleased with that, he -would build a house for her in the yard, and allow her servants and all other things in full. That witness called on complainant and asked her, if it was possible to settle matters ? She answered it was impossible, and would not read the letter. Then he stated the terms contained in the letter, and she said she would not live in his house, nor on his land, and would never see him if she could help it:

The rev. James Holcomb and Mr. Owens, waited on the defendant to persuade him to accommodate mat* ters. Defendant agreed to do so, and gave witnesses a letter containing certain conditions, which letter is dated 13th December 1810, and contains an offer to take her hack to his bed, provided she would clear herself of the infidelity he had alleged against her, on the 4tii August last. The reverend witness waited on her, but she refused to enter into any negociaüon, and said, she despaired of happiness. The first of these two gentlemen. *173afterwards, on 4th February 1811, received a letter from Mr. Goodwin, counsel for complainant, written with the assent of complainant, authorizing him to re-ceiveand hear any terms compatible with the character, security and support of the complainant. And after-wards, on the 7th February, Mr. Holcomb writes to Mr. Goodwin, .that ho had seen Mr. Taylor, whose determination relative to the business was unfavorable. That he would not advance one cent to his lady, but was determined to risk the law-suit.

Mrs. Neal had been intrusted by defendant on the ■2d February, two days before the last mentioned application, with a letter, which contained a great many exhortations to her to return to her duty, and states, that if she would clear herself of being unfaithful to his bed, on the 4th August last, that he would forgive her, and receive her as his wife again. Mrs. Neal says, that the passage in the letter, relative to her being unfaithful to him, fired her considerably, and she said, she feared to go home.

This is all the evidence of witnesses that appeared to be of any weight on the part of the defendant. There was, indeed, a circumstance of her cutting him with a knife, stated by John Sturzennegger, and commented upon by defendant’s *counsel;*but as this appeared to be the effect of accident, for which she was very sorry, and' happened before they had any quarrels, the court did not think it worthy of any notice.

Defendant in his answer denies the charge made in the bill, of having beat his wife on the 4th August last but admits that he charged her with infidelity to his bed, and says that he can explain the whole matter b* testimony, which, it is supposed, is* that of John Bracket $ but it is hardly to be conceived that she would have ñed from her husband, or that she would have jumped over the sharp pointed pailings of the garden, unless she had been urged by some terrible fear, or some desperate conduct on his part. Then, even supposing John Bracket’s testimony to be all true, there arc strong circumstances which lead us to suppose that violence was offered. But *174will be unnecessary to make any further comment or the answer 'and this Witness’ testimony $ it is presumed fjie declarations of defendant to Allen and Hugh Nesbitt — the circumstances related by Allen' Nesbitt and wife, of her going to their house so much braised on that day, and in a low condition 5 of what Mrs. Clarke *relates;*and finally, of the state in which she was eleven days afterwards, when visited by Dr. Watkins, I say, it must be presumed from these facts, stated by these witnesses, that defendant bruised and beat the complainant in the manner that has been stated in the bill.

The court said at the, hearing, that the conduct of the defendant on the 4th August, last, was the principal part of his behaviour towards bis wife to he commented upon,. as ' immediately after that he sent her away from his house *;*but in making this observation, it was not intended to preclude other cases where he had acted violently towards her. The dragging of her up stairs by the hair of the head, and imprisoning her all night $ the ’ñinging a knife and fork across the table at her, and the knocking her down with a stool before his own father, . have all been fully proved, and are instances of outrageous conduct, seldom witnessed in civilized’society. That she was in fault, is not a sufficient excuse.

Without any hesitation, I declare myself of opinion, that these outrages, amount to the highest degree of the ssevitia of the:civil-law, or of the intolerable cruelty mentioned By judge Blackstonc, and therefore, that they would authorise the ecclesiastical court to pronounce a divorce, a mensa et tboro. But defendant has made an ■-offer in open court, to take Back complainant as'his wife, and to cohabit with *her;*and has, by an instrument of writing with his own hand,' acquitted her of the charge of being unfaithful to his bed ; and his counsel ask, is there no room or place for repentance ? Will this court proceed to pronounce a divorce between tlio parties and separate them forever? This court will pronounce no divorce ¿ but after such repeated outrageous conduct on the part of the defendant, it will endeavor to provide for the security and maintenance of the wife, until both paNb-r *175may be somewhat cooled, and she may return, with some kind of safety to her husband. Her fears are expressed to every one who speaks to her about reconciliation, and from all that has been related of the violent temper of defendant, I cannot think them groundless. I shall decree the defendant to pay the one third of his net income, as alimony to the wife, to commence from the present day,, and to,he payable on the fifteenth days of October and April, half yearly, until in the opinion of this court, the complainant may return in safety to her husband. Therefore, let it he referred to the commissioner, to ascertain instantcr, the one third of defendant’s income, on a mean of three years, and let defendant pay the costs of this suit. 1

Upon the coming in of the statement of .the commissioner and before report made, it appeared that one third of the nett income of the defendant, would amount to fo 1,550 19, and it being offered to the court by the defendant to pay *$*500 per year, as above mentioned, waving the right of appeal, it is therefore ordered . and, decreed, that defendant do pay the said g 500 as above mentioned, and .the costs of this suit.

There was no appeal from this decree,