Freeny v. Freeny

Fowler, J., delivered the opinion of the Court. The bill in this case was filed for a divorce a mensa. The ground alleged is cruelty of treatment. The questions presented, with the exception of a few minor ones in regard to exceptions to testimony, involve issues df fáct, and may be ⁴⁰⁸ briefly disposed of.

We entirely agree with the conclusions announced by the learned Judges below. The case was heard before a full bench, and the carefully prepared and exhaustive opinion, which was concurred in by all the Judges, after reviewing all the testimony, grants to the wife the relief she prays for in her bill. This conclusion is in our opinion entirely in accordance with the decided weight of the testimony. It would serve no good purpose to discuss in detail the testimony which discloses the unhappy relations which existed between the plaintiff and defendant, nor would it be either instructive or interesting to show that the charges of cruel treatment on which the wife bases her claim to relief, have been fully and satisfactorily established.

In cases like this the witnesses relied on must necessarily come from the domestic circle. Ill-usage of the kind imputed to the husband in this case is not generally indulged in while others are present. In the case of Hawkins v. Hawkins, 65 Md. 107 , and in other cases, it has been remarked that it is from necessity that members of the family or servants must in most cases like this be called as witnesses. For, say the Court in that case, “ill-usage and cruel treatment of the wife do not generally occur in public places, or in the open face of day.” It appears that the parties to this cause were married in 1880, and that after living together for thirteen years, the plaintiff left her husband, taking with her the three children of the marriage, who were respectively about ten, twelve and seven years of age.

The testimony of the plaintiff and these three children, leaving out of consideration all other testimony offered by her, if it is to be received and credited, is amply sufficient to have justified the lower Court in passing a decree of separation. But the testimony of the children is excepted to by the defendant on the ground that they are incompetent to testify by reason of their tender years. After carefully examining the children in regard to their capacity to testify