Long v. Long, 9 N.C. 189, 2 Hawks 189 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 189, 2 Hawks 189

Long v. Long.

From Washington.

¡'he act of Assembly of 1814 authorises a dissolution of the ma"riagt? contract for two onuses only; and a single act of adultery in a married .nan, whereby he bicornes infecíed with a disease which he communicates to his wife, is not a sufficient cause for a divorce, because the injury received by the wife is not com.nuuic.itcd under such circumstances as constitute any one of ¡Lo causes provided for ¡n the aat.

Petition for divoice from the bonds of matrimony, and for alimony. The petitioner set forth that on the 15th of March, 1818, she intermarried with the Defendant, and tiiat after the marriage, such indignities had been offered her by her husband as rendered her condition intolerable ; that by the cruel treatment of her husband in communicating to her a most hateful and dangerous disease, her life had been endangered 5 that she liad been* abandoned by the Defendant, and that be bad lived in adultery with other women after having abandoned. the petitioner.

The Defendant in his answer, admitted the marriage1;, admitted his having been guilty of a single act of adnN tery, admitted that he had reason to believe be bad communicated a loathsome disease to the petitioner, but averred, that at the time, he was ignorant that he was afflicted with it, and denied living in adultery with other women, or having left the petitioner with any intention of abandoning her^ but averred that any separation which had taken place during the marriage was either by eonserd or owing to the voluntary departure of the petitioner. From the evidence on the part of the petitioner it appeared, iff at on the 9th of August 1818, when the first separation took place, a division of property was made between the' parties, whereby the petitioner received a portion of the household goods. About 18 months after this separation, the parties again lived together for a short period of time, at the house of an aunt of Defendant, where the petitioner becoming very sick she wa‘s removed to her father’s. In the period between the first and se.cond separation, Long, the Defendant, spent a short time with his wife at tiie house of her father, but being dissatisfied, did not remain. It was proved by two physicians, that the petitioner was for some time diseased after she returned to the house of her father, and it was also proved that from the period of that return she liad not received her husband to conjugal embraces. On the part of the Defendant, it was proved that the petitioner declared her willingness to live with her hfsband, that he had treated her with affection, that she was attached to him, and did not wish a divorce, but that her parents did, and that her separation from Long was not a voluntary act, but wps owing, to others. In April 1821, the petitioner had again declared that the separation between herself and her husband was not attributable to the fault of either, but to others. It was also proved, that previous to any separation, the Defendant had been treated with great harshness by the mother of. the petitioner, that he had uniformly treated his wife with affection, and after the separation had written frequently both to* her and her father intreating her return. The character of the Defendant for sobriety and temperance was good, and at the time he communicated disease to Ins wife, he was ignorant of having it, and upon discovering that he had done so, reflected on himself in the severest terms of reproach.

Several issues were submitted to the Jury, the 3d'and 4th of which were as follows :

3d. Did the Defendant, Myles Long, communicate the venereal disease to bis wife ?

4th. it' lie did so, has the, petitioner Charlotte since admitted him into conjugal society and embraces, knowing that fact ?

The Jury found all the issues in favour of the Defendant, and petitioner obtained a rule to shew canse why a new trial of the 3d and 4th sues should not bo granted ; upon argument the rule was discharged. It was decreed that the petitioner pay costs, and the petition ha dismissed. Whereupon the petitioner appealed.

The case was submitted by Gaston for the appellant, and argued by

'Rodman for the appellee.-

The act of 1814, on 'which, the petition was founded, it was contended, had it constantly in view to prevent collusion between the parties, and in addition to other securities for that, purpose, provided that all the facts charged in the petition should be submitted to a Jury, upon whoso verdict, and not otherwise, the Court shall decree. And it was said, that a sound construction of the act required that allegations of the petitioner, and admissions of the Defendant, were he alike disregarded as evidence, otherwise a door pwonld he open for collusion. The facts liad hern submitted to the proper tribunal, they had thought ñtto negative fite admissions of the Defendant, and this Court, could not sayr tiiey were not inliucnced in so doing by their conviction that the admission was made in tiie answer merely to procure a divorce.

Per Curiam.

This is a petition for a divorce under the act of Assembly of 1814, which authorise;, a dissolution of the marriage contract for two causes only. One of them is out of the question here ; and the other, viz. living in adultery, though alleged in the bill, is denied in the answer, and it is not only not sustained by the evidence, but distinctly disproved. In no view prc~ sen ted by the case, could a divorce, a vinculo, be granted under the law.

tij© alternative prayer of the petition for a divorce, a mens a et than, ic authorised by the act, where - •. husband abandons hir. family, or turns bis wife out «sí <Lor:.« or by cruel and barbarous treatment endangers lur life, or ofi’ers such indignities :o her person as to rend.r her condition iint»2es*i;Me, or life burthcnsomc. The only charge corning,within this description, hi that which the third issue was framed to ascertain, which, though found in favour of the Defendant, is nevertheless supported by the evidence of physicians, and even admitted in the answer. This issue being found against evidence, we should be disposed to grant a new trial of it, and the one fallowing ns moved for, if a different verdict could change the result in point of law. But if those issues w*ne found according to the ¿negations in the petitions, si divorce mnsi'.still be wíiík.-: id, the injury recciv ed by the petitioner not having been nsmraieatcd under such cironmn .arree, as constitute any ■.■nr of the causes provided for in the act. H is not meant to extenuate the adulterous ?>/. by which the Defendant became infected, or to lessen the reprobation which it justly merits : that has lost no part of its original turpitude, and in the view of moral lice, the .Defendant should bear the full weight of all sifS consequences. Bat we must estimate the character of the offence according to a positive law, and not aitach legal effects to an act of one description, which the law has connected with another. The evidence shows that ihe Defendant was not impelled by any settled purpose of mischief, or mwed by that brutal disposition which shows itself in repeated acts destructive of the-happiness of the married st.D"' — -that he was unconscious of his si-{cation at the tb.oj and when he afterwards discovered its crJaniitoms effect on the petitioner, he expressed his sorrow in the tores of unfeigned remorse. It is in proof» that the Defendant’s general-demeanor towards his wife was kind and affectionate, and the declarations of the wife to some of the witnesses shew that these parties are very far from being in a state of irreconcileahle discord. The busy whispers of officious friends have fomented their occasional bickerings, and the intrusion of relations into the factions of the family, has precipitated a separation which might have been avoided. It is to be hoped, that the interposition of judicious friends will enable these parties to find their way back to domestic harmony, and the evidence in the case warrants the belief that their dislike towards each other, will be found the least formidable obstacle to a re-union. A new trial is refused.