[Present, Chancellors Rtjtledge, Burke and Marshall]

JUNE, 1801.

#### Elizabeth F. Jelineau per prochein amie *vs.*Francis Jelineau.

The Court interfered to protect and relieve a wife who was ill used, degraded and insulted by her husband; altho’ he had not absolutely beaten her,'nor forced her out of his house; she having retired to avoid a repetition ofill usage ; and altho’ the husband made an offer to receive her back again, to avoid maintaining her separately, and to elude the justice of the court.

She shall have relief and maintenance according to the fortune ofthe husband. Referred to the master to enquire and report his circumstances.

THIS was a bill filed by the complainant against ber husband, charging that he had used her extremely ill, and praying for alimony to be allowed- her out of his estate, for the maintenance of herself and child.

The bill stated that the complainant, (a lady from St. Domingo''intermarried in the month of February, 1800, with Francis Jelineau, (also from St. Domingo,) and for some months lived with him in peace and harmony, but soon after his conduct became changed, and her life made wretched, by his ill treatment. That he cohabited with his own slave, by whom he had a mulatto child, on whom he lavished his affection ; whilst he daily insulted the complainant, and encouraged his slave to do the same. That her said husband told her she should quit his house, and his conduct compelled her to do so; and she took refuge with a friend, at whose house she has become the mother of an unfortunate child, to whom the means of subsistence have been denied by his unnatural parent. That since the birth of her infant, she has written to her husband, and applied to him through her friends, but their applications have been unavailing. Her husband, has repeatedly declared that she should never have a shilling of his money; and in fact has not contributed one farthing to the support of herself or his child, since his *46conduct drove her from his house; though he is worth 7 or eight thousand (7 or 8,000) dollars. That he has sold his property in Coosawhatchie, and is about to depart the state, and to leave her and her infant unprovided, and totally destitute — the bill prays for relief.

The answer of the defendant admitted his marriage with the complainant, but denies that he has used her ill, or in any way to justify her separating herself from him. The answer states, that she owes her unhappiness to her own *conduct;*and that if she had behaved towards him in a decent and dutiful manner, she might have continued to live happily with him. The defendant states that at the time he was about to marry the complainant, he informed her that he had a mulatto child, born to him in St. Domingo, (where he stated, it was not disgraceful to have such connexions,) for whom he cherished an affection, and meant to provide *;*and the complainant promised to behave kindly to said child.

That when the defendant married the complainant, she passed under the name of the widow of Mr. La Barthe, by whom she had a son, about eight years of age; but he has since been informed that he was the son of a Mr. La Fon. But she had lost a daughter some time before her marriage with complainant, whom he has since learnt was the child of Mr. La. Barthe. That the defendant hath since learned that the complainant never was married to Mr. La Barthe, but had imposed herself upon him as the widow of that *person;*which she has in fact since ac-kowledged to him. That the complainant soon after the marriage, forgot her promises, and used his mulatto child so ill as to distress and wound his feelings, and oblige him to complain to her of her conduct; which only encreased her severe treatment to his child, as well as to her mother, and also her abuse and ridicule of the defendant.

That the complainant took some sugar out of the store, to send to her sister, contrary to the directions of the defendant, who told her he could not maintain two families. TV hereupon he told her if she repeated this conduct, he *47would turn her away. She retorted with insult and abuse, and declared that all she wanted was that he would turn her away. That the defendant being greatly took advice from counsel, who informed him that he could .... not separate himself from her without maintaining her, on which he resolved to make the best of a bad bargain, and not to furnish her, by his conduct, with a pretence of separation which she *desired;*but he offered her a sum money if she would voluntarily separate from him, by deeds duly executed; which she did not accept, but treated him with scorn and contempt, and shut herself up in her chamber a fortn|ight, inaccessible, to him, and inattentive to him, though very sick and debilitated.

That the complainant at length quitted the defendant’s hot.se of her own accord, taking with her some of his property, and endeavouring to slander his character among his neighbours.

That defendant never struck complainant, or threatened to do so, though she insulted him almost beyond the bounds of human patience, when he reproached her with her former licentious life, and imposition on him.

Defendant denies that he insulted complainant or permitted the negro slave to do so; and he denies that he desired the complainant to quit his house, or obliged her to do so by his ill usage of her.

The defendant admits that the complainant has had a child born since she left his house; but that from the date of its birth, and the opinion of medical men, he has good reason to doubt its legitimacy, as the said child was born only 8 months & 4 days after the marriage took effect.

The defendant admits that the complainant wrote to him a short time before she filed her bill of *complaint;*but her letter contained so many false charges, that he took no notice of it — and when her solicitor John Bee Holmes, Esq. applied to him on her behalf for a maintenance, he answered that it was. impossible for him to maintain her apart from him; but that his doors were open, and that if she would return and behave properly to him, he would *48do so to- her. Defendant denies that he declared she should never have any of his money, except in resentment °f her declaration, that she married him only for his money. But he admits that he has not supplied her with any thing since her departure, she having helped herself wpen spe quitted his house. Defendant denies that he, has sold his property, or has any settled determination to leave the state, though he has some thoughts of returning to France in a year or two.

Defendant denies that he is worth more than about $3000, which is insufficient to enable him to maintain complainant separate from himself. ’

The defendant submits to the court, “ That under the above circumstances, he is not bound to provide for her a separate maintenance, though it would be more to his happiness to do so, if he had the ability, than to receive her back. Neither does he think he is bound to receive her *again;*but should the court think it proper that he should receive and maintain her at his house, he is ready lodoso, and to treat her with the same respect that she, shall treat him.”

The cause came to a hearing in June, 1801, and it was proved that the defendant Jelineau had treated the complainant with great indignity and impropriety, and had degraded her in his language and deportment, below his slave, the mother of his Mulatto child. But there was no proof of his having struck her, or actually turned her out of doors, though he had threatened the last. She left the house, after repeated ill usage and degradation.

There was no proof on the part of defendant, of the charges made in his answer against the complainant.

Dr. Fronty proved that her child was an eight months child.

This case was ably argued by Mr. Holmes for the complainant, and by Mr. Parker and Mr. Pringle for the defendant.

But no notes of the arguments have been preserved. The minutes taken by Chancellor Marshall refer to 1st Fonb. 96, and to the case' of Oxenden v. Oxen-*49C-Mirm Vv..u°j, den, reported in 2 Vern. 493, and the important cases connected with it. (See Nichols and Danvers v. John Dan-vers and others, 2d Vern. 671, and Williams v. 2 Vern. 752.)

The case of Head v. Head. 3 Atk. 547, appears to have been cited and relied upon by the defendant’s' counsel, to shew that the court could not give relief in such a case as this. The remarks of Chancellor Marshall, (in his own hand writing, on his brief,') are important. He says, “ the principle of this case, (Head, v. Head,) is an extraordinary one. It compels the wife however, reluctantly, and not withstanding .the most, barbarous and inhuman treatment on the part of the husband, to go back .to him, merely because he makes an offer in court to take her back. This is called enforcing- the marital rights. I observe through the. whole current of cases on this head, that the Court of Chancery in England touches this business of alimony and maintenance, with a delicate hand. They leave it to the ecclesiastical courts. Here we have no such institution, and must take it on ourselves.”

Chancellor Burke made the following remarks, (in his hand writing on the same brief,) on the case. “ His (the defendant’s) invitation to her to return and submit herself to new insults from his mulatto mistress, she as a woman of sense, must feel as a further indignity. His answer tells us that this mistress forms the source of the whole difference; yet not a word about removing this cause. Had he made this offer, she should make an experiment.”

The Court took time to consider, and afterwards Chancellor Rutledge delivered the decree of the court.

It has been strongly contended by the counsel for the defendant, that this Court has not by its constitution a power of decreeing a separate maintenance for a woman although she has been ever so harshly treated by her husband, unless a divorce has been previously obtained, or there be an express or implied agreement on their separa-*50tlon, for that purpose; and'this doctrine is attempted to be supported by the cases cited from the English law *unn%„*D00KS-

It may be very good law in that country, because there ecclesiastical courts have competent jurisdiction to grant divorces, *a mensa et thoro :*but in this country, át least in this state, there is no such *court;*those cases therefore are by no means applicable to our local situation» Hard indeed would be the lot of the fair sex, if they alone were tobe excluded from the protection of the laws in this country, and if from the fear of infringing on the marital rights of the husband, the wife must be obliged to submit to all his brutal treatment, without any redress whatsoever. If there were no precedents of the interference of the court of equity in cases of this sort, we must make them, rather than so wanton an abuse of power by a husband over his wife, should escape with impunity.

On examining the law establishing this court, we find, it has all the powers granted it, incident to a Court of Chancery; and its jurisdiction is not in any measure restricted, except in cases where the party can have complete and adequate remedy at law.

The cases however of Huger v. Huger, and Wilson v. Wilson, which have been determined in this court, have established precedents for us to *follow. It*is true, the separate maintenance in those cases was a provision out of the estate, that belonged to the wife; but it can by no means be inferred from thence, that if they had not had such estate, they would not have been provided for out of the estate of the husband. The complainant made out her case by testimony, so as to entitle her to the attention of -this court. That she was extremely ill used, though not beaten by her husband, we need only refer to the testimony of Mrs. P-, who though the sister of complainant, (and may very naturally be supposed to have considerable resentment against the defendant,) delivered her evidence with a calmness and composure, that carried with it the greatest appearance of truth. She said that he *51bad refused to send away the negro woman slave, who was the bone of contention between them. That at dinner one day, he took away the plate from complainant when she was going to help herself to something to eat, and said, when he and the negro had dined she might. He grudged her the bread she ate, and said grass was good enough for her; that he was going to a magistrate to get a divorce, and would buy a horse whip, and whip her well, before she went away. T'he complainant’s letter to him, \vhich was given in evidence, shews a sincere desire to be again reconciled, and to return home to him. How did he treat it ? He has sworn in his answer to her bill, that it was unworthy of an answer. He has also in his answer lavished his abuse on her in the most unqualified and scandalous manner. His charge of the child, which she bore him, being illegitimate, appears to be as unfounded as it is cruel. It is a wanton attempt by him to bastardise his own issue, and to brand with infamy on the records of this court, the name and character of his injured wife. But the charge has been completely refuted and destroyed by the testimony of Dr. Fronte. At the same moment that he avers he is not obliged to take her back or to maintain her, and that he would be happier without her, he has the confidence to say, if the Court order him to receive her, he is ready to do so.

He .attempted to prove, (notwithstanding what he had sworn in his answer) that they lived happily together, and examined two witnesses for that purpose.

The first knew nothing; and the second veiy little. He said he believed they lived happily together, and the next' moment declared that she cried very much when she related to him the conduct of defendant towards her, which he the witness was to communicate to Mr. Morgandollar, whom she went to consult with on the subject. There can be no doubt that the complainant ought to have some provision made for her and her child’s maintenance."

It would be absurd after what he has sworn to in his *52answer, to suppose they could ever live happily together; he at one time offered to maintain her, and now offers to make some provision for the child. Let it be referred to the master to make inquiry into the circumstances of the defendant and report thereon.