The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1869-09-02

all matters of Equity, and that the Equi-
ty side of the Court ls the only forum
where such causes can be heard, and the
various orders passed to give effect to its
judgments. Hence the Equity side of tho
Common Pleas is the only appropriate
tribunal to exercise the jurisdiction con-
ferred. In Perry VS.. Perry, 2 Paige, SOL,
Chancellor Walworth says: "But when
ever the legislature Cor constitution dis
tinctly gives the right without creating
or appointing any particular tribunal to
administer the remedy, it is fairly to be
inferred that they intended to vest that
power in scme of the existing tribunals
of the country" Here the constitution
gives the right of present jursdl ction' ex-
pressly prescribes the Court of Common
Pleas as the tribunal, and the inference is
that the power is vested on Equity side,
because of the adoption of the practice of
that Court, to give efficiency to all neces-
sary DEGREES and orders in determining
such cases. I conclude therefore, that
the EQUITY side of the Court of Common
Pleas has jurisdiction of divorces mensa
ct thoru and vinculo matrimonii. In the
latter class, not only in cases where the
cause arose prior to marriage as defined
by Lord Coke, but also in cases of adul
terry and wilful permanent desertion in
cases arising subsequently. That the
proper practice is to proceed by bill that
the allegations must be sustained by proof
taken before the clerk and reported to
the court. That to avoid colusion or con-
niyance between the parties, the alega-
tions of the bill are not to be taken MS
truo on pro confesSo order, or by the con-
sent of the parties, the prayer for an alb
solute or qualified divorce only being
grantable upon proof of the existence OF
defined and established legal cause.
1t follows, hence, that the petitioner
in this case, John H. Walker; has not set
forth any sufficient legal cause in his Pc
titlon why his prayer for a divorce vinculo
matrimonu should be granted; and upon
the proof submitted, it is not admissible
to grant divorce a mensa ct thord.
The proof establishes the i'll temper;
petulance and subborness Of the Defend
ant, and upon one occasion that she struck
at him. Was it such violence and legal
cruelty practiced by woman towards
man that entities him to claim even q
qualified divorce a menSa ct thora? Cru
city is any conduct in one of the married
parties, which form reasonable appre-
hension that the continuance of the CO.
habitation would be attended with bodily
harm 10 the other" Evans VS.. Evans, 4,
English. E. R. 31O The learned Judge
Iord StowelD) in the same case says ::
"What merely wounds the mental feel
ings is in few cases to be admitted where
not accompanied with bodily injury either
actual or menaced Mere austerity of
temper, petulance of mannors, rudoness OF
language, want of civil attention and ac-
commodation, even occasion sallies of pas
sion, if they do not threaten bodily harm,
do not amount to legal cruelty. They
are high moral offences in the marriage
state undoubtedly, not innocent surely
in any state of life, but still they arc
not that cruelty against which the law
can relieve. Under such misconduct Of
either of the parties, for it may exist on
one side as we'll as on the other; the suf-
fering party must bear in some degree the
consequences of an injudicious connection
-must subdue by decent resistance or by
prudent conciliation; and if this cannot
be done, both must suffer in silence
In Lockwood VS.. Lockwood, English,
E. R. ia, it was held that "tbere must be
either actual violence committed, atten-
ded with danger to life, limb or health. or
there must be a reasonble apprehension
of such violence" Again in Evans VS..
Evans, Lord Stowell says: "In the older
cases of this sort which l have had an
opportunity of looking into, l have OBJ
served that the danger of life, limb, or
health, is usually inserted as tho ground
upon which the Court has proceeded to
separation. This doctrine has been re-
peatedly applied by the Court in the cases
that have been decided. The Court has
never been driven off this ground"
Chancellor Walworth, in Perry VS..
Perry, Bart, Ch. r. SIG, says when the
husband is complainant, sit is not suf1ici-
ent to show single act of violence on
her part towards him, or even series OF
such acts so long as there is no reason
to suppose that hc will not be able to pro-
tect himself and family by proper exer-
else of his marital power" From these
authorities, it is manifest that the Petl-
TONER has not alleged, or proven any
sufficient legal cause emitting him to
decree of separation against his wife.
Chancellor Kent lays down the rule
against the application of the petitioner in
broader terms than any of the foregoing
authorities. He says in Van Veghten
VS.. veghten, Johns. Ch. R. SOL, that
,the husband cannot file bill against his
wife for divorce mensa ct thora, on the
ground of cruelty, descrtion or improper
conduct" and assigns as the reason, there
for, that "the common law has given to
the husband sufficient power and control
over the wife to protect himself from such
| conducto