Breinig v. Breinig ( 1856 )

The opinion of the court was delivered by

Black, J.

This was a libel for divorce, brought by a wife against her husband, and grounded on the allegation of cruel and barbarous treatment. It was tried by a jury, and resulted in a decree in favour of the libellant. The respondent has taken this ■yyrit, of error.

We shall not discuss the points seriatim, as they were argued by the counsel. It will be more convenient to consider them in a different order, and reduce their number by rolling several into one.

1. The court permitted evidence to be given of particular acts done and words spoken by the respondent, although he had no notice to meet them other than the general allegations of the libel. He might have entitled himself to a more specific notice by demanding it. But when he went to trial without doing so, he must be presumed to have waived notice. If he had been really surprised at the trial, an affidavit to that effect would have got him a continuance. But the same subject had been investigated before, and he probably knew every inch of the ground he had to go over. His objection to the want of a specification is merely technical, and, tried by the technical standard, there is nothing in it.

2. At least five of the exceptions are based on a supposed deficiency of the evidence to prove such acts or threats of cruelty as would justify a divorce. We had the same question before us in Breinig v. Meitzler, (11 Harris 156,) upon the same evidence. We held then, what we now again declare to be our opinion, that the evidence was proper to be received and submitted to the jury, so that they might determine whether it involved a threat or not. Those acts and words which did of themselves imply no intention to inflict personal injury were properly received as showing the terms on which the parties lived.

8. The respondent was not permitted to show that his wife had once made an unsuccessful effort to have him bound over to keep the peace. This record was rightly rejected : she was not a party to it in any sense that would make it binding on her. Nor does it appear to have any relation to the subject-matter of the present dispute. No copy of it is produced, and the bill of exceptions does not show whether the complaint was made one year or seven years before the separation of the parties. The respondent’s counsel think it should have been admitted because it is alleged in his answer and denied in the replication. But neither the answer nor the replication is in the paper-book; and we cannot put our decision of a cause on the pleadings without seeing them.

4. It is argued that the court ought not to have allowed the libellant so much alimony, nor anything at all for her expenses. If there was error in this, we have no authority to correct it. There is nothing on this record by which we can know whether the alimony was too much or too little. We are bound for this reason, if for no other, to presume that the judges who had all the facts before them decided the matter rightly. It has been the uniform practice to allow a wife destitute of a separate estate, who is either suing or defending a case of divorce, such reasonable sum as will enable her to carry it on. • She cannot sue in forma pauperis, for she is not a pauper if she is the wife of a man who has property. To deny her the means of paying for process and professional aid is to deny her justice. The amount is a question for the discretion of the court.

5. As soon as the sentence was pronounced the respondent presented a petition, asking for a suspension of it and offering to take his wife back. The prayer was refused. The law favours the reconciliation of parties who are divorced a mensa et thoro. When both are willing to try over again the enjoyment of living together, the sentence will be suspended or annulled without hesitation. Where the husband desires to do his duty and the wife unreasonably refuses to join him, she ought to be punished for her obstinacy by the withdrawal of her separate support. But it is not true that the husband has an absolute right to annul the whole proceeding whenever he pleases, by the mere act of presenting a petition. He cannot force his wife back again under the roof from which she was obliged to fly, and into the power that abused her before, by the simple expression of his own will. The court may annul or suspend the sentence in a proper case, but they are not bound to do so in every case. It is left to their discretion by the very words of the statute.

Judgment affirmed.