*Columbia.*

Heard by Chancellor Desaussure.

«45* arre**.

#### Catharine Threewits by her next friend, *vs.*Lewellin Threewits.

A wife being abused and ill treated by her husband fled to her re--lations, but was induced by his promises of amendment to return. Sire soon after again left him and returned to her relations. Although her return to him is a waiver of objection as to his prior ill treatment, yet: the court will receive evidence of his prior ill conduct, to aid the pre»' numptionof harsh treatment after her return, of which there was no very positive proof. The voluntary settlement made by him after marriage, though certainly not gefed against prior creditors, was good as between the parties.. One half the property included in the deed, vested in the hands of the trustee therein named, for the use and maintenance of the complainant and the younger children, remaining with her, and to pay half the debts. The other half of the property to remain in defendant’s hands for his own use and support, and that of his eldest child, unalienable by him to any other purpose, and subject only to such debts as have a legal right to be satisfied out of it. Defendant or-*561^red to enter into a recognizap,ce before the commissioner to keep the peace towards his wife, who is protected in living separate from him, pefendant to pay costa. ,

JULY, 1815.

This case was argued before the Circuit Court at ■Columbia, which thereupon made the following decree:

This is one of those unhappy cases in which courts of justice are obliged unwillingly to enter into the privacy of domestic life, and to judge between persons whosfc gelations' are so close, that they ought not to require any other guide for their conduct, than that pure and strong affection, which is the guarantee of domestic felicity.

The bill charges that the complainant being entitled to a personal estate of the value of ¡S3,000, intermarried with the defendant on the February 1810 *;*and that he possessed himself of her property. That during the courtship, the defendant proposed to settle certain property on the complainant, and the issue of the marriage, if the same should take *effect;*but the agreement was not perfected, till the month of October 1813, when the defendant executed a deed by which he conveyed teh negro slaves to certain trustees, for the use of complainant and the issue of the marriage; But he reserved a life estate-in the property to himself. That soon after the marriage ¡the defendant became much addicted to intoxication$ and when in that situation,, he beat, abused arid ill-treated ..the complainant; so that her life was frequently in danger *;*and she was obliged to seek refuge with some of her neighbors : that his paroxisms became So frequent, and his abuse so great, that finding no dutiful submission on her part made any difference in his conduct, she took Shelter with her *relations;*but upon bis repeated, solicitations, and professions of better behaviour, she. returned to his house, and conducted herself with all duty, affection and tenderness. That he soon forgot his pra-inises, and acted more outrageously and brutally than evor; heating and abusing her more grossly than before* which drove her from him a second, time. Again he solicited a reconeiliatioo, and again sho returned to him, and used every means in her power to sooth h/s angry *562passions. But in vain. — he burst out again into new abuse and ill treatment, till at length, finding all iiope of belter conduct at an end, she finally left him, and sought protection with her mother and other near relations.— And ho has pursued her with slanders on her reputation, to deprive her of her asylum. That the complainant with her children, is dependant on the bounty of her mother and brothers for subsistence, the defendant refusing to make her any allowance for a separate maintenance.

The bill prays that the complainant may be protected in living separate from the defendant, and that the defendant may be decreed to deliver up the ten negroes, mentioned in the deed above-mentioned, for the use of the complainant and her children, or to make some other just and adequate provision for them.

The answer of the defendant admits the marriage of the complainant with the defendant, and the execution of the deed of settlement stated in the *bill;*but insists that it was made to gratify the wishes of the complainant’s friends, and not upon any agreement either before or after marriage. That he never meant to place the negroos mentioned in the deed, out of his own control, and submits whether the language of the deed, will authorize such a construction as will deprive him of the use and possession of them. The answer further admits, that from intemperance, in which he indulged too much, he might and did treat the complainant with that roughness and want of tenderness which might superinduce complaint on her part, and shame and confusion on his; and that being incapable, from the fatal effects of spirits, of appreciating the value of the complainant’s society, or of endeavoring to regain her affection and attachment, he admits that for this cause, the complainant did absent herself, and continued with her relations for some time * and defendant insists that even during this period, when she received such treatment, (as he alleges she has never received since,) the complainant would have been averse, as he believes, to a total and final separation from this defendant, inasmuch as she solicited, in a tender letter, an interview', and a return to this defendant. That *563in consequence of these pacific overtures, a reconciliation took place, and he received the complainaut affectionately, and they continued to live in peace and bar-mony, till some time in February last. She then applied to this defendant in terms of affection, for the means of ■visiting her mother and friends in Edgefield, to which the defendant acceded — And he accompanied her on the way, and parted from her in apparent harmony and good humor. And at separating she requested him to meet her.at Major Bond’s, on a certain day, to attend her home; which he accordingly complied with j but she did' not come, and he has never since seen her. He believes she would have returned home in affection with him, but for the interference of her relations and *friends;*and the defendant offers in the sincerity of affectionate regard, to receive and treat her as a wife ought to be received and treated.

Defendant denies the statement that their qhildrem are dependant on the bounty of the complainant’s connections. One of them is with the defendant’s mother, and the -*>ther two, can at any time, claim the protection and care of a father, if they are returned to the defendant.

On the trial of this case, Mrs. Thomas, the mother of the defendant, was called by the complainant who swore that the complainant has been married to her son about five years ; and that they lived in harmony for about a year after the marriage. That when the husband was in a drinking way he used his wife ill, spoke roughly to her, and once he laid hold of her in a great passion and shoved her about; but the witness interfered and prevented his beating her. She never saw him beat her ; hut she has seen her with marks of beating about her, which she said was done by her husband. He did not use her ill when sober $ but he was drunk pretty *often;*and then he abused her violently. The last time she returned home to him, he drank less than before, and he treated her better; at least'not so ill as before, and a woman might have put up with it: — They seemed to live in harmony, except once, when she heard them disputing.--*564This Was sometime in January or February last: — lie' was intoxicated. Ti¡ey had high words and she came ou^ ^1C chamber, and complained of his threatening to strike *her;*upon which the witness told her to remind him that she had bound him over to the peace. He appeared to be angry but did not strike her. The witness has never advised the complainant to separate from her son $ nor does she remember ever to have said that they could not live *together;*or that she regretted that her daughter-in-law returned back to her husband the last time. When she went away the last time, her son and daughter-in-law went together,in a chair in apparent harmony, and she appointed to return in about ten days. The witness told her. daughter-in-law, that if she wished to remove and live apart, she would have a house prepared for her, near to witness. But she said, she had no inclination to remove, and wept at the idea of a separation. She always conducted herself with propriety as a dutiful and affectionate wife. When they lived apart, (before the last time of coming together,) the complainant told witness, she wished to return home to her husband, Heitbrother,, Mr. Daniel, appeared to be averse to her going home; and told her, not to speak to her husband but in his presence. They contorted as man and wife, when he accompanied her to Major Bond’s, on her way to visit her mother, whence she has not returned. The complainant has told witness lately, that she never had any contract before marriage with her husband for a settlement. Also,, that her relations interfered to prevent her going home. Pas heard her son tell his wife, since they came last together, that if she wished to part entirely, it might be done amicably, and he would consent and arrange it, and give her some of bis property: but she then said, she had no desire to leave him. When the time arrived which bad been fixed for him to go and meet her, she heard him say he would go *;*but does not know if he went. She thinks her son would willingly receive his wife again.

Capt. Thomas, testified on the part of the complainant, that the marriage took place in 1810. He witness*the strife between Threeavits and his wife, It began *565If year or-eighteen months after the marriage: — the defendant was in the habits of drinking hard : and when drunk lie treated her severely. He was very outrageous when he got into his drunken frolics — thinks he is somewhat reformed latterly, but not wholly. He ivas very drunk last Monday. Bid not See him get drunk at home Since the last time his wife returned home to him j but he' got drunk when from- home. They lived in more harmony the last time they were together than before. She always behaved unexceptionabíy as a wife. The witness was not on good terms with his step-son, Mr. Threewits.. He was displeased with him for his ill conduct. On one 'occasion he found him near his house armed with a gun, and the family had left the house, greatly alarmed at his conduct. His wife and mother were part of the family.He was angry and took the gun from Threewits, — heat him a little, and broke the gun, and ordered him not to come near his house again. This was before the Iasi coming together of the parties. The defendant’s personal property was worth about ££,000, when he married. He lias disposed of it to about gl,500 or £2,000* He got about four grown, and two small negroes by his wife, and some *money;*and he has disposed of part of that.

Major Threewits, the uncle of the defendant, was called by the complainant, and he testified that the quaiv rels between his nephew and his wife, arose about a year or eighteen months after their marriage. He was subject to intoxication and used her *ill;*they were once on a visit to witness’s house, arid at the breakfast table, he-was drunk, and suddenly rising from the table, he cursed himself and his wife in outrageous terms, and made a Mow at her with a knife — shefended off the blow from her body, and received a cut on her hand. At another time, and some weeks after she was confined with her last child, Mrs. Threewits came running over to witness’s house, which is not far from his residence, with her head naked and-her child in her arms: a negro sheltered them from the rain with a blanket — she was greatly alarmed. Mrs. Thomas the-mother of the defendant came running *566after her ,• she also appeared greatly alarmed. This was as he believes, the clay on which Mr. Thomas took the *San*from him, arul broke it. Mrs. Threewits was an ex-' emplary wife, and behaved perfectly well. The witness said he had endeavored to reclaim the defendant, his nephew, from hard drinking; and offered him a thousand dollars if ho would leave off *drink; but he*refused it, and said, .he would drink as long as he had a seven-pence.— Mrs Threewits, several times, came running over to his house in great alarm and apprehension, in some instances with marks of beating. They live within a quarter of a mile of the witness. The witness does not think that Mrs. Threewits could live with her husband, unless he would leave off hard drinking, which he does not think will take place. He was drunk on the Monday preceding this trial. Witness has heard Mrs. Thomas say, she regretted that her daughter-in-1 aw came home the last time, as she did not think her son would behave better than he had done. He saw Mr. Threewits and his wife several times since he^ last *return;*he behaved better in public :■ — But when lie was gone, she said to the witness, it would not do, she could not live with him. He believes she would be willing to live with him, if he would leave off hard drinking, not otherwise. He has spoken with his nephew, who said, he did not wish the cause to come into court *•,*and proposed an accommodation; but she said, she was ignorant, and left it to her counsel.— Mr. Threewits was in good circumstances when he married 5 but he has wasted his property a good deal.

Mr. Daniel, the brother of complainant, swore, that she had made a determination not to return home, for she did not believe he would quit hard drinking. He is persuaded she would have kept to this resolution, but for her husband’s solemn promise, which he heard, that he would never drink to excess again. He told liis wife that he had taken an oath that he would never drink to excess again. She was induced to go back the last time by these assurances. ■ The oath which he took, was made before a magistrate, and reduced to writing, and recorded; a copy of it was produced in ^evidence. If contained @ *567Solemn oath that he never would knowingly or voluntarily driuk any spirituous liquors, or intoxicating liquor, in this state, or in any state, to which he might remove. It was dated 16th August 1814. He got by his wife six negroes, and about gffOO in money. 1

The letter from Mrs. Threewits-ito her husband, mentioned in the defendant’s answer, was produced in evidence. It was an affectionate letter, deploring their disagreement, and earnestly soliciting him to come and see her and not to leave the state, or she should be miser-able_-It bore no date. His letter to her was in these words:

*“*Madam, — As you have left me and my house, at a time and in a manner, calculated by you to injure and expose me, and without my consent,' I write this to desire you to keep away j you shall never return to my house in safety *•,*do not attempt it»

(Signed) Thbeewits.

Mr. Caver, was examined for the complainant.— This witness had kept himself out of the way for some days, and gave some trouble to procure his attendance. A suspicion was excitad that he was kept out of the way de* signedly. On his examination, he attributed his removal from his.usual place of residence, after he had been sub-peened and the cause brought to trial, to sickness. In some degree the suspicion was removed, but not wholly. He testified that lie was present when Mrs. Threewits, the complainant, returned home to her husband the last time. They seemed to be reconciled, he heard no quarrels, and she wag well treated by her husband. He saw them almost every day, and he did not see any ill be-haviour. She appeared to be well pleased. He saw Mr. Threewits drunk twice during their last residence together, but he did not hear him abuse her, or ill use her. He was not violent when drunk, as far as witness saw, though he saw them together when he was drunk. He was a little groggy a third time, in the evening. Mrs. Threewits came out of the room where the company was sitting j she was not alarmed. Mr. Threewits followed *568hcr) and said she might as well hare come to bed to hin^, as anotI»©r bed 5 be heard nothing more* This was in, January or February last. When she went away to visit mot])er, ho beard Mr. Threewits say, ho would go With her — he does not know if he did._

This was all the testimony given in the caée. It leaving been strongly stated by the *counsel*for the defendant, that the complainant, Mrs. Threewits, was not disposed to prosecute this suit, and would rather cómpro-mise the affair, and return home to her husband, but that she was over-ruled by her brother, and her other relations, the court felt it a duty to ascertain that fact, and requested Colonel Chappell a near relation of Mr. Three-wits, the defendant, to visit Mrs. Threewits, and learn her real sentiments, as well as to endeavor to bring about, an amicable arrangement of their differences if possible. Colonel Chappell accordingly visited that lady, and conversed freely with her. He communicated in writing to' the court the result of his conference with her. She stated that she. could not return to her husband, for she could not confide in any promises which he might make. lie-had repeatedly made solemn promises to her, and her friends, that he would reform his conduct to her, all which had been so often broken, that she could not now hope for a different result 5 and that she should now ho afraid of her life, if she ventured to return home to, him. Colonel Chappell also saw Mr. Threewits, the husband, and was satisfied from what passed between them, that her determination not to return to him was - correct.

On the argument of this case, the counsel for the defendant admitted the charges in the bill, generally, as the answer had done ¿ but insisted that the complainant having returned fo live with her husband, after the most, atrocious instances of ill conduct, was a waiver of all objections up to that time; and that the conduct of the husband to the wife, after that time, was not so harsh or-severe, as to justify her in separating herself from her husband, or to warrant her claim to a separate maintenance. Tim counsel admitted the jurisdiction of the-*569éourt, but insisted that such. a case of severity had not been made out, on their last living together, as would 'support the claim of the wife, to the protection and aid of the court. I had occasion some years ago to examine this subject, in the case of Prather and Prather, at Lau-rens, in which a demurrer was put in to the bill, and the question of jurisdiction was fully argued, and I decided that in the absence of ecclesiastical courts, and from the incompetency of the courts of law to give relief, it devolved of coarse on this court to give relief, or the citizen would be left remediless, in one of the most important particulars of human life. And I also noticed that in several instances, since the revolution, this court had given relief, on proper cases being made out.

The first case after the establishment of the court* ■was decided in April, 1785. The court stated that tha conduct of the wife was free from all blame, and that the husband’s conduct was blameable, and warranted the wife in separating herself from him ; and that the custody of the children belongs to the father, but the mother is entitled to access to them. It then decreed, that the defendant enter in recognizance to the master, for lOOQf, with two sureties for 5002. to keep the peace towards complainant. That the complainant be enjoined from proceeding at law, against any person for receiving or .entertaining her. That the estate which devolved to the complainant on the death of her brother, be settled by the defendant, to the use of the complainant, and her children, subject to her disposition among them$ and that the defendant should execute the deeds necessary to give effect to the decree before the master, to trustees, for the purposes aforesaid. That it be referred to the master tik; examine into the value of the estate which the defendant obtained in marriage with the complainant, and of de.*» fendant’s estate, and to report thereon. That the com», plain ant have free access to her children, and they be allowed to visit her, whenever she desires to see them. And in case of sickness, she shall have the care of them till* recovery. That the parties may apply from time to time in a summary way by petition for further or other di*570rections, and that all costs bo paid by defendant. The ' next case which occurred, was that between Mrs. Win-yp¡¡son( gy ]ier ljcxt friend, against her husband John Wilson. This was an application to protect the. wife, in living apart from her husband, propter ssevitiam, and in compelling him to settle a large property which she brought him in marriage, but which lie had agreed by bond to secure. The court in the first instance!, in March 1789, granted an injunction to restrain defendant from selling the personal estate, till the ultimate hearing and decree, and to account for tiic rents and profits with the master, reserving sufficient for the support of the husband and wife and child. Afterwards, in August 1791, the court established the bond, and protected the wife in living separate. Again, in the case of Elizabeth Jellineati, suing by her next friend, against her husband, Francis JelHneau, the court upon full argument-made a decrees» full and clear to the points in *question*that J will, for the-benefit of the profession, state it fully, us it is not in print. “ This is a bill filed by a wife against her husband, for a separate maintenance, on the ground of cruelty and ill conduct. It has been contended by defendant’s counsel that this court has not the power to decree, a separate maintenance for a wife, however harshly treated by her husband, unless p divorce has been previously obtained, or unless there be an express or implied agreement, on their separation, far that purpose. The cases cited from the English books to establish this doctrine, may be good law in England, whore the ecclesiastical courts have competent jurisdiction to grant divorces a mensa and fhoro,, But in this state there is no such court, and hard would be the lot of females if they alone should be excluded from the protection and benefit of the laws, and be obliged to yubmitto any degree, of cruelty from their husbands, without any redress.” 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. But this court has all the powers incident to a Court of Chancery, and its jurisdiction is r,oi in *571any manner restricted, except incases a here the party .can have complete and adequate remedy at law. The cases ofllugcr *vs,*Huger and of Wilson and Wilson, determined in this court, have established precedents. It is true that the separate maintenance in these cases, was a provision out of the wife’s estate. But'it cannot be inferred from thence, that if they had not such estate, they would not have been provided for ont of the estate of the husband. The complainant has made out her case by testimony. She has been insulted, despised, degraded .below a negro slave, who was preferred to her, and ihreatened, (though not beaten) with a horse whip. Ho has calumniated her, by alleging the child she bore him is not his, without his producing any testimony to support the charge against her. He has attempted to prova that they lived happily together, hut ho has not succeeded in his proofs. The complainant’s letter to defendant, which was given in evidence, shews a sincere desire to bo reconciled to him, and to return home. And he said her letter deserved no answer. In his answer filed in this court, lie has lavished his abuse on her, and denies that he is obliged to take her back or maintain her 5 ami asserts that he would be happier without her than with her, yet he lias the confidence to say, that if the court orders him to receive her, he is ready to do so. it would be absurd to suppose after what has passed, that they would be happy together. Complainant is entitled to some pro - visinu for her and her child’s maintenance. Ho once offered to maintain her, and now offers some provision for the child. — Referred to the master to enquire, and report bis circumstances.” To make the history of the doctrine as established by this court complete, I will mention that in another case, decided on full argument in May 1803, the court refused to allow alimony to a lady, who ¡¡ad lived apart from her husband for many years, and who never made any legal claim till the death of her husband. The court said she came too late after his death.

Wo come now to consider the circumstances, of the -ase under discussion.

*572It was clearly proved that the complainant W&S 1 blameless, and even meritorious in her conduct from the time of her marriage to the final separation. This testimony was borne her by the nearest relations of her husband, his mother and his miele. It was also clearly proved, that Sir. Threewits, the defendant, has been habitually in a state of intoxication, and when in that state, has generally abused and ill used his wife, and sometimes beat her, and put her life in jeopai*dy *;*in two instances most barbarously. This makes a strong and clear case for relief; else forlorn would be the condition of the female sex, and disgraceful the inefficiency of the laws.

But it is said, that all the instances of brutal conduct which might have warranted the wife separating herself from her husband, and obtaining the protection of this court, occurred before their last re-union; and *that she*went away the last time without any real ill usage, or any just provocation ; and that her husband is willing to receive her back, and treat her tenderly as a wife ought to be treated.

If this was the real state of the case, and there was good reason to believe that this offer was the. genuine effusion of a mind repenting its past errors, and seeking occasion to remedy them, it would make a material alteration in the case. But let us *look at the facts. It is*manifest from this lady’s whole conduct, and particularly *hy*her repeatedly returning to her husband, on his promises of reformation and better treatment, that she was' sincerely attached to him. It is equally manifest that he has violated those promises. Ho obtained her return the last time by a promise made upon oath, of reformation, on the article of excessive drinking, and with respect to his treatment of her. It is iu full proof that lie violated that oath, and was repeatedly drunk during the short period they stayed together the last time they were united ; at least three times at home, in the course of a month, and oftener when from home. He had always used her ill before when drunk; the presumption is, he would do so again; for he who could violate an oath for reformation and sobriety, could not hesitate to repeat the ill *573usage, to guard against which that reformation was pro-snised. The uncle of the defendant who has acted a very friendly part to him, and advised him well, and offered him a large sum if he would leave off drinking to excess, swears that he does not think Mrs. Threewits could live in safety or comfort with him, unless ho would leave off hard drinking; and of this he swears he has no hope, as he has repeatedly violated his oath, 5 and has been drunk even pending the trial of this cause. The mother of the defendant too, expressed in the presence of Major Three-■Wits, that she, (whose maternal partiality made her view every tiling most favorably for her son,) regretted that her daughter-in-law had returned home the last time, as she did not think it would be better than before. Appearances were, to be sure, kept up better than tiiey had been. He was move cautious of offending in public by gross ill *usage;*but it is discernible, that he did not behave well j for we find through the reluctant narrative of the fond and perhaps cxcuseablc mother, that when they came out of the chamber, where she heard high words, that Mrs. Threewits complained, ho had threatened to beat her; and he did not contradict her assertion 3 he was then intoxicated. The evidentia rei, too, is against him. The wife had earnestly sought a reconciliation.— He had written a stern letter, forbidding her to return, as it would be unsafe for her to do so. Yet she afterwards ventures, such is her attachment for him, to return and live with him, on his renewed promises to avoid execs-give drinking, and to reform his conduct to hoi-. Ho broke the first promise, though made under the sanction of an oath 5 and I must believe iie broke the other promise of better treatment. There is some direct evidence that he did, and this is supported by vehement presumptions. Else why should a wife so attached, and behaving so correctly in all respects, abandon him, if he had reformed. But it is said her friends interposed and obliged her. There is no evidence of this after her last return. Her repeated returns when she had hopes of reform, shew that she acted independently of them, or that they were not inimical to her attempting to live with him, as long as *574there was any hope of her doing so in harmony ; and the result of the enquiry lately made at the instance of the court, shows that she is acting from her own judgment and feelings, and refuses to return to her husband on a deep conviction that her life would not be safe with him. Under these circumstances, I cannot do as Í am desired to do; I cannot separate the evidence of his conduct at -different times; I cannot shut my eyes to the light of the truth disclosed by the whole evidence. To be sure, if a woman forgives ili usage and returns to her husband, on promises of good usage, she shall not afterwards obtain the protection and assistance of this court, if those promises had been faithfully kept, and she again leaves her husband from caprice; but if there are clear indications of a breach of those promises, and some actual ill usage, she is not bound to wait for extremities as in the first iin-stance, but may depart as soon as she finds the promises violated, and her husband returning to bis old bad habits. She has a right to judge of the future by the past ; and the court will connect the whole of his conduct, in order to form a correct judgment.

But it is insisted that the defendant has offered to take back his wife, and treat her kindly and affectionately as a husband ought to do. If this offer were made bona iide, in good earnest, with a view to keep his promises, and not merely to elude the effects of the breach of former promises, the court would most willingly listen to it, and endeavor to obtain its reception by the wife. But there is little reason to believe that this offer is made with that fixed intent to re-form and behave better to his unfortunate wife, on which reliance can be placed. I speak the language of his nearest kinsman, the respectable old witness Major Threewits, when I say that I have no hope of this reform, and no confidence in these pro •• mises. His violation of all former ones forbids it; and it would bo a miserable elusion of justice, to permit the defendant to disarm the court, and to send back his wife to his cruelty, on the faith of promises so often broken. Upon the whole, I am too well convinced that there is no resource for this lady, but in being protected by the *575-r.ourt in living separate from her husband, and in having u provision made for her out of his property. The voluntary settlement made by him after marriage, though certainly not good against prior creditors, was good as between the parties. But as he reserved the possession and use of the negroes to himself, for life, that would not furnish any immediate supply. It is in evidence that he has diminished his owrn property, as well as that which he got by his wife, by extravagance and bad habits.' — . This renders it necessary that an immediate provision be made.

It is therefore ordered and decreed, that the defendant enter into bond or recognizance, to the commissioner in the sum of glOOO, with two sureties, each in the sum of £>500, to keep the peace towards the complainant; and that the defendant be enjoined from proceeding1 at Jaw, against any person for receiving or entertaining the complainant. That the complainant have free' access to her children, and in case of sickness, she shall have the care of them till. their recovery. The defendant having repeatedly declared his willingness to make a reasonable provision for bis wife and children, the court would prefer that the terms should be proposed by himself.

It is therefore ordered and decreed, that the defendant do immediately lay before the commissioner, proposals for the establishment of a fixed fund for the support of his wife and children. And in the mean time he is enjoined from selling" or otherwise disposing of any part of his personal estate, till the ultimate decree as to such provision. And farther, that the parties may apply from time to time in a summary way by petition for further or other dispositions; and that all costs be paid by the defendant.

Henry W. Desaussure.

The commissioner having made a report, the following additional order was made :

This case having been referred to the commissioner te examine and report unon the circumstances of the de* *576fend ant, the. commissioner reported there were deMfe due by the defendant, contracted before the 20th October, (the date of the deed of trust) to the amount of $931, and that his estate now consists of eleven negroes, which are included in the deed of trust, and one other negro man slave, and some inconsiderable personal estate. The report also states that several negroes of defendant have been sold to pay debts. To this it must be added, from the evidence *on the*trial, *that*the defend-' anthas expended a considerable part of his property since his marriage; so that his present possessions are not worth as much as his own property, or his wife’s, were severally worth at the time of the marriage. Nor hits he contributed in any degree to support or maintain his family since his separation from his wife.

On this report being taken up, it was proposed by the counsel for the complainant, that the court should order the delivery to the trustee of all property comprehended in the deed, to bo managed by him, and applied to the maintenance and support of Mrs. Threewits and the children, as well as Mr. *Threewits;*and an offer was made, that the trustee would then pay off the debts contracted before the date of the deed, and which threatened destruction to the property. On the other hand, tho counsel for the defendant proposed that a certain portion of the property should be put into the hands of the trustee, for the purpose of maintaining her, and that the remainder should be left in his hands to maintain himself and the children.

I have considerable difficulty in.thís case. I am re--luctant to intermeddle with the rights of the husband and the father, beyond what is forced on me by the circumstances. But the past conduct of the defendant leaves little doubt that bis property would be wasted, and his family left in beggary, if every thing remained at his disposal. This raises a strong inclination to do something, for the security of this unhappy family. I cannot however, on reflection, feel myself justified to take all the property of the trust deed out of his hands, fox’ that property is for his benefit, as well as that of his family *}**577sad however improper his conduct has been, there is no evidence of such derangement as would justify the taking • it wholly out of his hands. I must therefore restrain myself, and act upon the defendant’s proposition ratlief than upon the complainant’s.

It is therefore ordered and decreed, that the defendant do forthwith deliver up to Mr. Jesse Daniel, a trustee named in the deed of the 20th October, 1813, one half of the negro slaves comprehended in the deed, regarding number and value, (and separating families as little as possible) for the use and maintenance of Mrs. Thrcewits, the complainant, and of those children, who, by reason of their tender age, have been properly left in her cari and custody 5 and that the said trustee shall thereupon pay off one half the debts stated in the report of the commissioner.

It is further ordered and decreed, that the other half of the said negro slaves shall remain in the hands of Mr. Lewollin Threewits, the defendant, for the use and support of himself and the eldest child which is with his mother; unalienable by him to any other purpose, and subject only to such debts as really have' a legal right to be satisfied out of *it;*and he is directed to pay the other half of the debt reported by the commissioner.

IÍENitx W. Desaussuhe.

By the consent of the parties, James I&gers, Ben.-. j£min Busby and Randolph Geiger, are appointed commissioners to divide the property, as above directed, with directions to include in the wife’s moiety the ns*. groes which belonged to her before the marriage.

From this decree and order, an appeal was made by the defendant on the following grounds, to wit:

First, — Because' by her reconciliation and subsequent cohabitation with defendant, the complainant had waved all antecedent grounds for relief.

• Second, — BecauseAhe decree in this case makes a provision for two children of defendant, out of a specific trust fund, Contrary .to the provisions of '4eed creating such tpu$t.

*578Egan defendant’s solicitor.

The case came on in the Appeal Court, and the following decree was made

Court of Appeals, November, 1815. — -Upon hearing counsel in this case, it is ordered and adjudged, that the decree of the Circuit Court be affirmed, for the reasons given therein, and the appeal dismissed,

(Signed)

HenBy *W.*Desaussebe.,

Thomas Waties,

W. D. James'.