Moulton v. Moulton , 2 Barb. Ch. 309 ( 1847 )

The Chancellor.

This was not a proper case for the examination of the complainant to prove the acts of cruelty charged in her bill. The object of the 166th rule was to enable the complainant to make out her case where the defendant was an absentee, or where he had neglected to answer and make the discovery called for by the bill; and was never intended to apply to a case where the complainant, by waiving an answer on oath, had deprived the defendant of the benefit of his answer to explain the transactions complained of. The testimony of the wife, therefore, must be laid entirely out of the case in deciding the question whether the husband has been guilty of such acts of cruelty as to justify this court in decreeing a separation. Again; most of the acts of alleged cruelty which are testified to by the wife, as having occurred when no one was present except the husband and wife, took place from ten to twenty years since, and are therefore barred by the statute limiting the time for bringing suits in equity.

The alleged acts of cruelty which are charged as having taken place within the last few years, appear to have been the natural result of the complainant’s own misconduct, in charging her husband with offences which were calculated and intended to irritate him. And they are not proved by those who were present when the difficulty first occurred, except in one or two instances, in which it is perfectly evident the complainant was clearly in the wrong. Under such circumstances it would be a per version of the object for which the statute on this subject was passed, to decree a separation; although the husband does not resist the application.

The complainant’s bill is therefore dismissed. And the defendant must take his wife home, and provide for her support.