Harding v. Harding

BáRTOL, J., delivered the opinion of this Court. This was a bill filed on the 22nd of May 1857, by the appellant against the appellee, for a divorce a mensa et thoro and for alimony. The bill avers, that the marriage took place on the 31st of January 1856, and that on the 20th of August in the same year, the complainant gave birth to a male child, which has been named Joseph Harding; that after this premature birth, and during the period of her confinement, the husband actuated, by jealousy and his own evil disposition, charged her with adultery, and threatened to cowhide her to coerce her to acknowledge some other person than himself to be the father of the child, and so violent was his conduct and cruel his treatment, that she was compelled from fear of personal injury to leave his house and fly to her father’s house for refuge, on or about the 11th of September 1856, before her entire recovery from her confinement, and ³⁴² greatly to the danger of her health; she avers, that she has in all things conducted herself chastely, faithfully and affectionately towards him, and earnestly desired to be and remain his true and faithful wife, but disregarding his duty to her, he has aspersed and blackened her fair name, and by his cruelty driven her and his child from his bosom and home, and has wholly abandoned and deserted them, which conduct on his part is the more inexcusable, because he was at the time of his marriage, a widower, and the complainant had not before been married, and was a virgin prior to her intercourse with him; and she charges that her husband has refused to receive her and his child again into his house, and has refused and still refuses to acknowledge her as his wife, and the child as his, and to make any provision or allowance whatever for their support. The bill further charges, that her husband is seized and possessed of large real and personal estate, but that she is entirely without means of support except from her own labor and the charity of her friends.

The prayers of the bill are for an answer, a divorce a mensa et thoro, alimony, the custody and guardianship of the child, and for general relief. The answer of the appellee, admits that he became the dupe of the complainant, then Elizabeth A. Thompson, and was married to her on the 31st of January 1856, and that she gave birth to a male child on the 20th of August 1856, not prematurely and before its time, as alleged in the bill, ■ but to a full and perfect child in all respects, and not the offspring of the Respondent as alleged, but of an illicit intercourse between her and some other man. That finding that he was the dupe of a cunning and disreputable woman, who under the semblance and garb of virtue, had deceived him into the obligations of a husband, he did, after the birth of said child, feel and exhibit great concern and uneasiness ³⁴³ tbat he had taken to his bosom and house, as his wife, and the mother of his motherless children, a woman every way unworthy of his love and the confidence he had reposed in her. He denies that he treated her with cruelty or threatened to cowhide her, or that his conduct was so violent that she was compelled to leave his home, before her confinement was fully ended; but he admits the fact that he did charge her with adultery, and the birth of her child gave him just ground for the allegation, and that he should have removed her from his home, and from exerting a baneful influence upon his children, the offspring of a previous marriage, three of whom are girls.

He avers and alleges that she left his house, conscious that she had deceived him, and her departure was the effect of a guilty conscience, and not fear of him. He admits he has made no provision for her and her child’s support, nor does he consider himself bound to do so, as she has been guilty of adultery, and the child is the offspring of another man; nor should any part of his property be assigned to her, as by her improper conduct she has forfeited all claim to his love, respect and support; and having answered all the material allegations of the bill, he prays he may be hence dismissed with his reasonable costs, &c. This answer was sworn to, general replication filed and a commission to take testimony issued, under which a number of witnesses were examined. We have carefully examined the testimony, and concur in the opinion expressed by the late Judge of the Circuit Court, that the charges of cruelty of treatment made in the hill are not supported by the evidence.

In the cases of Daiger vs. Daiger, 2 Md. Ch. Rep., 335, and Coles vs. Goles, Id., 341, Chancellor Johuson, adopting the principles established in the English Ecclesiastical Courts, and quoting the language of Chancellor Kent, in Barrere ³⁴⁴ vs. Barrere, 4 Johns. Ch. Rep., 187 , laid down the rule that “mere petulance and rudeness, and sallies of passion may not be sufficient.”