Tire only questions presented by the record are 'these-:
1. That the transactions alleged to have occurred in January or -February, 1878, did not occur within si-x months before the commencement of this action ,• and,
2. That the facts are insufficient to constitute ground for divorce.
As to the 'first exception, it is provided in Bat. Rev,, ch, ■37, § 6, that the plaintiff shall also set forth in such affidavit, either that the facts set forth in the complaint, as grounds for divorce, have existed to his or her knowledge at least six months prior to the filing of the complaint, or if the wife be the plaintiff, that the husband is removing or about to remove his property -and effects from the state, whereby she may be disappointed in her alimony.
This section has been the subject of construction by two of the decisions of the court, viz: Scoggins v. Scoggins, 80 N. C., 318, and Gaylord v. Gaylord, 4 Jones Eq., 74. In the last case Judge Battle, who spoke for the court, said; “The act certainly requires that in ordinary cases the facts upon which the petitioner founds her claim to relief, shall have existed to her knowledge at least six months prior to the filing of the petition, and the seventh section of the act expressly enacts that she shall so state and swear. But the eighth section makes an exception to this, whenever ‘ the husband is then removing or about to remove his effects from the state.’ In such a case the wife may exhibit her petition at any time, and if she shall state and swear ‘that she doth verily believe that she is entitled to alimony, and that by delaying her suit she will be disappointed of the same, by the removal of her husband’s property and effects from the state/ any judge may thereupon make an order of *351sequestration or otherwise as the purposes of justice may seem to require.”1 And in the conclusion of the opinion the judge adds :■ “ There is nothing in this or any other section of the act which indicates a necessity that she should file another bill, or a supplemental bill, after the expiration of sis months from the time when the facts which- entitled her to relief occurred,”’
The sections seven and eight referred to by Judge Battle in his opinion, are sections of chapter 39 of the Revised Code which have been brought forward, condensed, and incorporated in section 6, chapter 37, of Battle’s Revisal, with some slight change in phraseology but none in substance. We think the plaintiff has brought her case clearly within the exception, and was not required to file another petition after six months from the time the facts are alleged to have occurred in January or February, 1878, and was entitled to a decree of separation, if the transactions then occurring were sufficient to Warrant the court in making such a decree. And this brings us to the consideration of the' second exception.
2. This case was before us heretofore on the question of alimony (Scoggins v. Scoggins, supra) and we then held that the facts alleged in the complaint to have occurred in January and February, 1878, if true, were sufficient to warrant the court in decreeing a separation from “ bed and board.” The jury in this case have found them to be true, and we see no reason for changing the opinion then expressed.
The conduct of the defendant was certainly very bad ;■ it was unfeeling and especially cruel under the circumstances. While his child is in a dying condition, needing all of a mother’s tender ministrations and sympathy, and while friends were on a visit to the house to assist his wife in nursing his sick one, and who might have given the plaintiff protection against his threatened violence, he drove them from his house, cursed the plaintiff, wished her in *352h — 11, threatened to kill her, and ordered her to leave his house. The demonstration of violence displayed by the defendant must have been very serious to have inspired the mother with such an alarm for safety as to induce her to abandon the bed-side of her dying child, and travel several miles away in the night to seek for shelter and protection.
We think the facts alleged and found by the jury bring the plaintiff’s case within the provisions of the act of 1871-2, ch. 193, § 36.
There is no error. The judgment of the court below must be affirmed. Let this be certified, &c.
No error. Affirmed.