tion of an offer by his brother; but there is no proof that he was authorized by him;-it is scarcely natural that it should be so. If made in consequence of the one made by her, it was an insulting proposal; but yet with this difference, that hers must be considered as an offer to withdraw a defence, which she maintained to be true, his only to take off the effect of what he declares to be false, and in which the Court agrees. It does not appear to have been acted upon. I do not say, that this indiscretion may not be visited upon him in some other place, but I think, it cannot properly have the effect of barring him from his prayer in this Court.

The third ground is, that of adultery committed by him. One proof to this charge is the evidence of one of the sisters, who speaks of declarations made by him, in letters to his wife, confessing his fault, and soliciting forgiveness;-which fault, if committed, was forgiven, and the letter was burnt. It is to be observed however, that Hannah Rigby, who was the object of his supposed attachment, positively denies the fact. The second proof to this charge is one, which conveys an imputation so distressing to the feelings of the family, that I shall pass it over, observing only on the result of the evidence, which I have carefully examined, that it by no means proves the fact alleged against him.

A remaining charge is that of cruelty, which is introduced rather incidentally, and was argued only on the supposition of the proofs of her. innocence. But the Court holds her not innocent. On this plea the question might arise, whether a party would be entitled to bar her hus-/ band from his remedy of divorce for adultery, proved against her, by 9 2.9 the plea of cruelty? I am inclined to think, that she would not. It is certain, that the wife has a right to say, "You shall not have a sentence against me for adultery, if you are guilty of the same offence yourself.” The received doctrine of compensation would have that effect, because both parties are in eodem delicto; but this is not so in recrimination of cruelty: The delictum is not of the same kind. If the wife was the prior petens in a suit of cruelty, I do not know, that she would be barred by a recrimination of that species; for the consideration would be very different: The Court might not oblige her to cohabitation, which would be dangerous. Here the husband is the prior petens in a suit of adultery, and I take the general doctrine to be, "that a wife cannot plead cruelty as a bar to divorce, for her violation of the marriagebed."

It is then less necessary to canvass the evidence on this point very minutely. I do not think, that all vehemence was on his side only. Many witnesses disclaim all knowledge of any such misbehaviour, except from her own representation. It is not to be denied, that he was an irritable husband; that there was much of violence and intemperate passion in his conduct, words, and attitude of menace, which might produce present intimidation, and which can be excused only by the madness of intoxication. If the Court was sitting to judge of mere propriety of behaviour, it might see much to censure, though it is not unreasonable to suppose, that much of this may be attributed to the effect of extreme jealousy. He makes many efforts to detain her in his society by humiliation on his part. Mr. Montagu says, that he assisted in soliciting her to return, which shews that he had no notion of danger to her: There is nothing else but his return from abroad without notice; and which this Court cannot consider as cruelty. There is no notice

taken of such a charge, but in answer to a suit brought against her for adultery. I do not say that the facts are so antiquated, that they might not be deserving of attention, if the suit had been brought against her for restitution of conjugal rights; but, I think, they can have no place as a bar to a suit for adultery, which is fully and satisfactorily proved against her. I feel myself bound, therefore, to pronounce, that Mr. Chambers has proved adultery against her, and that nothing is proved against him, which should have the effect of barring him from the usual sentence of separation.

HOLDEN v. HOLDEN.-p. 453.

Divorce, by reason of cruelty of the husband, sustained on the facts.

THIS was a suit of separation and divorce by reason of cruelty, brought by the wife.

JUDGMENT.

SIR WILLIAM SCOTT.

This is a suit for separation by reason of cruelty, on the part of Mrs. Holden. The marriage appears to have taken place in 1790; and it is alleged, that, after a cohabitation of eighteen years, she is under the necessity of praying the relief of this Court for protection, as it is unsafe to continue any longer in the society of her husband.

7.402. The libel is very diffuse in the matter set forth to sustain this prayer; and many facts, which are there introduced, have been abandoned on proof, as is not uncommon in suits of this nature, from want of evidence, owing to the private nature of such injuries, or the inflamed state of the feelings, in which these complaints are usually made. But the question is not, what is unproved, but what is proved, in the depositions, which I now proceed to examine. I must observe, however, in the first place, that the examination of the witnesses appears to have been much lumped, and without sufficient distinction in particular parts, which lays the Court under great inconvenience in considering the weight and force of the evidence. And, on this intimation, the Court expects, that this mode of taking evidence will not be continued.

The husband has given no plea, and has not even administered interrogatories, to which he might have required the answers of the complainant, and have obliged her to speak to circumstances of secret aggression, if he has any such to allege in his defence. The case rests entirely on the evidence of the wife, and, amongst other witnesses, there are the two sisters of the wife, Miss Allicocke and Mrs. Mawer. The latter has not seen much, and states only, "that she was dissatisfied with the general conduct and behaviour of the husband." The other sister was frequently with them. She describes the husband "as a man of violent passion, with others as well as with the wife, on various occasions;" and speaks particularly to a scene which passed between them three or four years after the marriage, which excited great terror. On that occasion, she says, "she heard high words between them;" on which it is to be observed, that they might begin with the wife. But nothing of that kind is proved or alleged, and the husband has lost the benefit of that suggestion, by not pleading in his own defence, or calling for the

answer of his wife, as perhaps he might have done with effect; since it is observable, that some of the servants speak in a manner not wholly unfavourable to him.

The witness goes on to describe, what passed on that occasion, in the following terms: She says, on the fifth and sixth articles of the libel, "that she had gone to her own room about ten minutes on retiring for the night, before the parties, that she heard high words, and the voice of William Holden, speaking in a violent passion, and that the wife came and knocked violently at her door, and was much agitated, and said, that Mr. Holden was sitting in his shirt, with a pistol on each side, and desired her to go to him; that she did so, and found him as described; that he said he was writing to her father, and she at last prevailed on him to let her take the pistols away, and found that they were charged; that she retired again to her own room; that the husband came and took from her the child, who had usually slept with her, and said, his wife would sleep with her that night, but shortly after came again, and gave her the child, saying, the wife would catch cold if she slept in that room." appears, also, that the wife had a peculiar dread of fire arms; so that the general character of this behaviour, if not legal cruelty, is yet such violence of temper, as is adapted to create great fears as to the probable consequences.

The next fact that is spoken to, is that pleaded on the seventh article of the libel, on which the same witness says, "that on the 2nd February 1808, having gone up stairs, leaving the parties and the child in the front dining-room, she soon afterwards heard the husband call out to her to take the child, which she did from him on the staircase, and, in a few minutes, heard her sister cry out for help; that she went down and found her sister lying on the floor, and her husband standing over her, having hold of her arms, as if he would break the same from off the shoulders, apparently in great agony, and screaming; and on her remonstrating, he said, if she attempted to interfere, he would put her out of the window; and that the next day her sister was much bruised, and was obliged to send for a surgeon, and could not put on her night gown for a week."

Mrs. Hancock speaks to the same effect as to the bruises. Now, whatever the origin or occasion of this quarrel may have been, there is nothing to show, that it proceeded from the wife; and there is enough to satisfy the Court, that very unlawful violence was used upon the wife, from which she has an undoubted right to be protected.

There is another instance in 1800, which, though it is insignificant in itself, does, I think, begin in an act of very froward" behaviour on the. Ra part of the wife, and which lays the foundation for a suggestion, that all the violence was not on the side of Mr. Holden alone. Mrs. Turner says, the wife came to her house on the day mentioned, and said that her husband wished her to dine at home as he was going to have a friend, but she thought there was no necessity for dining there, and wished to dine with the deponent, and did so, although deponent's husband was engaged to dine with Mr. Holden.-That at night she went home with Mrs. Holden, and on going into the house Mr. Holden was greatly displeased, and told her she might go from whence she came, and after some altercation she did return and sleep at her house that night."

It is pleaded also, that a separation took place, for a short time, in 1808; that the husband used urgent entreaties with her to return, promising her that he would not, by words or blows, ill treat his wife again.

8.

These terms convey the admission of the fact, that he had given her blows; and it appears also sufficiently from another instance, to which I am going to advert, that this gentleman laboured under that infirmity of temper, which would not permit him to adhere to the promise which he had made. This instance of ill treatment happened in July 1808, and is spoken to by Mrs. Hancock, who says "that Mrs. Holden called on her, and showed her her arms, and said she would not return to cohabit with her husband." The sister confirms this account, and says, "that Mr. Holden came to her, and acknowledged that he was much shocked at the sight of his wife's arm, the morning after this had happened." There is also the evidence of Mr. Foster, the surgeon, on this part of the charge, who describes her arm at that time to have been very black, and of an alarming appearance, and that it continued so for six weeks. There have been also two servants examined, whose evidence is not very material.

270,1. On these facts, the Court has to decide, whether the conduct of the husband amounts to that sævitia which authorises a separation. On this .45point the Court has had frequent occasion to observe, that every thing is, in legal construction, sævitia, which tends to bodily harm, and, in that manner, renders cohabitation unsafe; whenever there is a tendency only to bodily mischief, it is a peril from which the wife must be protected; because it is unsafe for her to continue in the discharge of her conjugal duties; and to enforce that obligation upon her, might endanger her security, and perhaps her life. It is not necessary, in determining this point, to enquire from what motive such treatment proceeds.-It may be from turbulent passion, or sometimes from causes which are not inconsistent with affection, and are indeed often connected with it, as the passion of jealousy.' If bitter waters are flowing, it is not necessary to inquire from what source they spring. If the passions of the husband are so much out of his own controul, as that it is inconsistent with the personal safety of the wife to continue in his society, it is immaterial from what provocation such violence originated.

49

458.

Secondly, The law does not require that there should be many acts.The Court has expressed an indisposition to interfere on account of one slight act, particularly between persons who have been under long cohabitation; because, if only one such instance of ill-treatment, and that of a slight kind, occurs in many years, it may be hoped and presumed that it will not be repeated. But it is only on this supposition that the Court forbears to interpose its protection, even in the case of a single act; because, if one act should be of that description, which should induce the Court to think, that it is likely to occur again, and to occur with real suffering, there is no rule, that should restrain it from considering that to be fully sufficient, to authorize its interference. Here there are repeated acts, diffused over many years, which put the wife in danger, 1. and expose her to great bodily harm. Thirdly, it is not necessary that the conduct of the wife should be entirely without blame.

reason which would justify the imputation of blame to the wife, will not justify the ferocity of the husband.

On examining the facts of this case by these rules, I think the conclusion which the Court is bound to draw is, that, under the defects which may be left on the case by the absence of all defence, by plea or interrogatory on the part of the husband, the complaint must be considered to be substantiated. The facts are not numerous, nor without intermixture of affection on the part of the husband, and not without some

provocation on the part of the wife. Yet, I think, there is sufficient to entitle the wife to the protection of the law, and that the Court is bound to pronounce for the separation, as prayed in the libel.-Separation granted.

CROMPTON v. BUTLER.-p. 460.

Defamation, the testimony of two witnesses required, but not necessary that they should speak to the same fact.

SMITH v. WATKINS.-p. 467.

Defamation. Words amounting thereto in legal construction; direct terms not ne

cessary.

BREITHWAITE v. HOLLINGSHEAD.-p. 470.

Tithes, how far a debt discharged by a certificate of bankruptcy.

FILEWOOD v. MARSH.-p. 478.

Subtraction of tithes.-Notice as to setting out small tithes, how far required.-Custom of the particular parish.

FILEWOOD v. KEMP.-p. 487.

Subtraction of tithes. Composition not proved. See particulars, as to tithes of crops sold, whether due from the vendor; also as to barley-rakings, mills, etc.

FILEWOOD v. KEMP.—p. 494.

Tithe of corn mills, by the tenth toll-dish, not sustained. The net profit, now held to be the rate of tithing.

BEAURAINE v. BEAURAINE.-p. 498.

Appointment of the father of a minor, as curator ad litem, on election of the minor, but without the consent of the father, in order to substantiate proceedings against the son in a suit of cruelty and adultery, not sustained.

THIS was a question on the power of the Court to compel a father to appear as curator ad litem of his son, being a minor, who was cited to answer to his wife, in a suit of divorce, by reason of cruelty and adul tery.