
    DANIEL BRAY v. MARY ANN BRAY.
    Insufficient evidence of adultery on bill for divorce.
    Bill for divorce. The bill charges that the defendant, since her marriage with the complainant, and in the month of November, 1845, committed adultery, in the house of the complainant, and in his absence, with one-; that about two weeks after the commission of the said offence, she voluntarily deserted the house ánd protection of the complainant; and the complainant says that he believes, and therefore charges, that the defendant has been guilty of improper conduct, and has committed adultery with one or more person or persons in this state, whose aiames are unknown to the complainant.
    The defendant answered the bill. She admits the marriage as stated in the bill, and says she continued to live in the same house with the complainant till the latter part of the fall or the fore part of the winter, 1845, when she left his house on account of his cruelty towards her, and by his express orders. She says she lived with the complainant as his wife till July, 1845, when the complainant ceased all intercourse with her as his wife, and kept increasing in his unkindness and cruelty towards her, until fie forced her from his residence as aforesaid. That the complainant treated her kindly for some months after their marriage, until he inherited a farm worth about $15,000 or $20,000, when his treatment of her began to change, and kept growing worse until their separation as aforesaid ; and that at their marriage they were both poor. That the complainant, from July, 1845, until the said separation, refused to converse with her, and refused to permit her to have any management or control in his house, and gave the whole control and management of the family to his mother, and insisted upon this defendant’s communicating with him only in writing, and wrote her several notes, two of which only are preserved, a copy of the first of which is as follows : “ Dear wife — -I have no objection to talk with yon, but I don’t think it prudent to be alone with you, because you have acted very bad, bad enough for me to never countenance you again; and as I have said I would forgive you of what you have done, provided you look to your Maker, and make a great alteration for the better, I will be with you as I was before, and be intimate, but not till then. If you wish to talk with me, do it before people, it is better for you, and will suit me better; if you don’t want to say anything before anybody, you can write, but it is better for you to talk with me before mother, if no one else.” Which note this defendent received in August, 1845. The second note she received a short time afterwards, and is as follows; “ Dear friend — I inform you I found a special note in my vest pocket, and it specified that you felt better, and I would like to know how it is that you feel better, when there is all appearance of the same disposition that you formerly had. I am under the impression that you are trying to make a cloak to win my affections back again, and then you would be the same again as ever. But I’ll have you to know that I am not a fool, not quite. I can see you when you don’t think I am anywhere about, and more than that, I think you are very deceitful, but don’t look for my affection again; that trap is triped, but never again shall it be triped the next yourself is triped.”
    The defendant further states that, after she received the last note, she received several others from her said husband, before she left as aforesaid, containing the most unkind expressions, one of which contained the expression that he never again meant to use this defendant as his wife, which said last mentioned notes she says she has lost.
    She further says that from the-time she went to live with her said husband, his mother had the control of the family, and from July, 1845, till the separation aforesaid, the mother of the complainant forbid and prevented the defendant from eating at the same table with her said husband; obliged this defendant to wait for her meals until after the family were done, when this defendant got her meals, the best way she could, of the fragments which were left, and that this treatment continued until the week before she left as aforesaid.
    She further states that, for the last week before she left, her said husband and his said mother refused to let her have anything to eat, and all she got to eat, for the last week, was from her neighbors, who furnished it to her as a matter of charity 5 and that then, there appearing to be no prospect of any end to this cruelty, and her said husband telling her that she must either leave his house, or he would make her lea ye it, she left his house, and went to her uncle’s, Jonathan Pearce, and has ever since resided separate from her said husband. And she denies that she left the residence of her said husband except for the causes and under the circumstances before stated in the answer.
    She expressly denies that in November, 1845, or at any other time or times, she committed adultery in the house of her said husband, or in any other place, with one-, or with any other person or persons whatsoever. And she further denies that-she, at any time, voluntarily deserted the house and -protection of her said husband, and except as in her answer is set forth.
    She further denies that she has been guilty of improper conduct, or has committed adultery with any person or persons whatever, in this state or elsewhere; and avers that the charges of adultery made in the complainant’s bill against her are wholly untrue.
    She states that the complainant, frequently, before she left his residence as aforesaid, told her to leave his house, but that she continued to bear his unkindness as long as she could; and she avers that she always, since her marriage with the complainant, faithfully regarded towards him her marriage vows, and was true and faithful to his bed as his lawful wife.
    She states that her said husband is now a man of large property, worth some $15,000 or $17,000; and that her solicitor was preparing a bill for alimony when the subpoena in this cause was served upon her.
    The testimony on which a divorce is asked sufficiently appears in the opinion delivered by the court,
    P. D. Vroom, for the complainant.
    
      P. Vredenburgh, for the defendant.
   The Chancellor.

It appears by the testimony, more particularly by that of Aaron Armstrong, that some months before the alleged act of adultery charged in the bill, the complainant had left his wife’s bed, or had driven her from his, and had declared that he would not live with his wife. She occupied a different bedroom from that in which he slept. He had taken other measures which showed his determination to get rid of' her. This state of tilings has its influence in examining the proof of the alleged act of adultery, and in considering what weight it is entitled to. The testimony shows that the wife was fully apprised of the complainant’s desire to get rid of her, and that she was desirous that the difficulties between them should be accommodated, and desirous to remain with him as his wife.

The testimony as to the act of adultery is certainly of a very extraordinary character, not to say marvelous. The facts from which we are asked to infer adultery are sworn to by a single' witness only.

This witness says she stayed all night at the complainant’s house; that she went to the door of the room in which the wife slept that night — the night on which the adultery is alleged to-have been committed — at about midnight; that it was a moonlight night; that the door was open so that she could see the bed, and that she saw the person with whom the adultery is alleged to have been committed in bed with the wife; that the husband had gone to New York the day before, and did not return until the next day — i. e., the day succeeding the night on which the adultery is alleged to have been committed. How the witness knows when the husband did return we are not told. She says that when she went to bed she left the person with whom the adultery is said to have been committed, down stairs in the sitting-room. That after she went to bed she heard him come up stairs. How she knew it was he who came up stairs, we are not told.

The testimony has failed to impress my mind with a belief that on that night, and under the circumstances in which the wife then stood, any adulterous intercourse with her took place. It is much more credible, to my mind, that certain arrangements had been previously made for the purpose of getting up evidence of adultery in the wife. And it is very easy to perceive how this might have been done, and this witness herself imposed upon.

I do not feel justified in decreeing a .divorce for adultery on such proof.

Divorce denied.

Reversed, 2 Sal. Ch. 628.  