
    LOUISA SKINNER, Appellee, Petitioner, vs. WILLIAM H. SKINNER, Appellant, Defendant.
    APPEAL PROS! DEGREE OP THE CIRCUIT COURT OP MILWAUKEE COUNTY.
    The rule in applications for divorce is the same as in ordinary cases in equity; the petitioner must come into court with clean hands.
    The cruel and inhuman treatment which lays the foundation for a divorce, must be unmerited and unprovoked, or wholly disproportioned to the provocation..
    It is a sufficient answer to a petition for divorce on the ground of cruelty and habitual drunkenness, that the petitioner herself was regardless of her conjugal duties; that she frequented houses of ill-fame and associated with prostitutes and wantons.
    This was a petition for divorce from the bond of matrimony. The pleadings, evidence, and the decree of the court below, are succinctly stated in the opinion of the court:
    
      Arnold & Hamilton, for appellee.
    
      Yates & Fraser, for appellant,
    made the following points:
    1. “ Upon application for divorce, where both parties are found guilty of any of the enumerated offences for which a decree may be granted, the court should dismiss the bill.” Nagle vs. Nagle, 12 Missouri B. 53.
    
      “ In a suit brought by a husband against his wife for divorce on the ground of habitual drunkenness for more than two years, the wife may recriminate that he had been guilty of adultery; and such fact being found, will prevent his getting a decree.” Byan vs. Byan, 9 Mo. B. 535.
    
    
      2. Under circumstances of guilt on both sides, the court will dismiss both parties, and leave them to find sources of mutual forgiveness in the humiliation of mutual grief. ' Either a husband, or a wife, who enters the court with a criminal imputation on the conduct of the other, must be free from all reasonable imputation of the same nature. Page's, Law of Divorce, 234; Bishop on Marriage and Divorce, § 388 to 409 4 Petersdorf’s Abr. 20, tit. Baron & Feme (note).
    
    
      3. In a suit by the wife for a divorce on the ground of cruel or inhuman treatment, or other ill conduct of the husband, the defendant may show in his defence, and in bar of the suit, a just provocation -in the ill behavior of his wife; and this would be a good defence without the aid of a statute. Waring vs. Waring, 2 Hagg. Con. R. 144; 2 Kent's Com. 128.
    4. In such a suit the husband may recriminate that the wife has been guilty of adultery, and such fact being found, will prevent her from getting a divorce. Ryan vs. Ryan, 9 Mo. R. 535; Nagle vs. Nagle, 12 Mo. R. 53.
   By the Court,

Cole, J.

This is an application by Mrs. Skinner for a divorce from the bonds of matrimony, on account of cruel and inhuman treatment by her husband. In her petition, after alleging that she has been a faithful and obedient wife, and has, on her part, kept and performed her marriage covenants, she charges her husband generally of using personal violence upon her, and specifies four instances of cruel and inhuman treatment, stating particularly the time and manner of the same. She likewise charges, that her husband has been ill-tempered and unkind ; has indulged in most abusive language towards her, and that for several years past he has been an habitual drunkard.

The defendant, in his answer, denies all the allegations of cruelty set forth in the petition, and, by way of recrimination, charges, that the petitioner has not been a kind and faithful wife; but that she has, against his wishes, frequently and repeatedly left his house and infant child to attend German balls and dances; and been from home to a late hour of the night; that she has, against his consent, absented herself from home for weeks; that she has been in the habit of visiting brothels, and houses of ill-fame, and of associating with notorious prostitutes, and persons of lewd and infamous character.

To this answer the usual replication was filed, and the parties went to hearing upon the evidence taken in the case.

The Circuit Court decreed a dissolution of the marriage contract existing between the parties, and that the defendant should páy'$280, tbs amount' then due, and unpaid upon a previous order entered in the 'cause ;■ and also' should pay tbe sum of $1,000 for the support of the petitioner and her child, the issue Of the" marriage,'and should give sufficient security for the payment thereof1 withifr'six 'móifths from' the date'of the decree.

We do'not know what there might have been in the character of some of1 the witnesses,'as known to the court below, which'' would impair the weight of their testimony ; but upon the proof as it appears heré, we are unable' to affirm this decree, for the reason! that the petitioner' has' no right to complain of the defendant’s violation óf matrimonial duties, when she has shown herself equally regardless of them. She comes into a court of eqüity, asking to be divorcéd on the ‘ground' of ill-treatment received from her husband, 'when her own misconduct has undoubtedly brought upon5 her' much, if not all, of the very ill-treatment of which she complains.

‘•'It is well settled^1 that the cruelty which lays a just and legal foundation for a divorce 'must be unmerited-and unprovoked. And when the wife is ill treated on account of her own misconduct, her remedy is a reform' of her own manners, unless the return from the husband is wholly unjustified' by the provocation, and quite"out of proportion to the offence. Poor vs. Poor, 8 N. H. 307; Best vs. Best, 1 Addams, 410; Holden vs Holden, 1 Hagg. E. R. 453; Wood vs. Wodd, 2 Paige, 108; Bishop on Mar. and Div. ch. 20, 22, and cases cited in the notes; Bedell vs. Bedell, 1. J. C. R. 604; Watkins vs. Watkins, 2 Atk. 96.

It is quite impossible to comment, in mild and temperate language, upon the conduct of- these parties,'as that conduct is disclosed to'us by witnesses sworn in'-the c'ase, so much is there to condemn, and so little'to-approve of,'in the actions'of either, ánd in their general deportment, each towards the other; and I have therefore thought that I should more fully subserve the purposes of justice by Stating theg'eneral effect of this 'testimony upon our minds, and the'result at which'We liávé arrived in Considering it, than by spreading out a detailed history of the m'árried life' of these1 parties, many passages in which 'are as disgusting as they are disgraceful to human'-nature.

Anri first it is to be observed that it is as difficult to tell when tbe bitter waters began to flow in this case, as perhaps it would be unprofitable to point out to tbe parties tbe source from whence tbej sprung. On tbe one band, it would seem that tbe busband is a man of coarse nature, wbo, in bis sober moments is not destitute of feelings of kindness and affection; but wbo is intemperate, and bas been for years; an infirmity well known to tbe wife, before marriage; and when intoxicated is of an irritable temper, quarrelsome, frequently using towards tbe wife most opprobrious language, which, if she did not merit, she gave, by her associations, too much occasion for him to apply to her; all ending frequently in acts of personal violence, and mutual contests, in which it is as difficult to see who was the aggressor, as it is wbo was tbe victor. But tbougb tbis conduct of tbe husband is very reprehensible and improper, yet that of tbe wife appears to us to be more so.

It was stated by her counsel on the argument, that tbe case showed that for tbe first two or -three years of her married life her conduct was entirely exemplary. We have looked in vain through tbe testimony in tbe case to find evidence of that fact, and also to ascertain when it was that she was a faithful and obedient wife, and kept and performed her marriage vows. We have very strong reasons for suspecting there never bas been such a period ; and we are confirmed in tbis opinion, as well from tbe natural bent of her inclination and disposition before marriage, as from her conduct since 1853. Her mother, Mrs. Ward, who was tbe principal witness relied upon to sustain.tbe allegations of tbe petitioner, states that tbe petitioner was always willful, ill-tempered and ungovernable. She also testifies to an incident in tbe petitioner’s life before marriage, which throws a flood of light upon her character. I refer, of course, to tbe time when the petitioner, then a young woman about eighteen years of age, on account of trouble and difficulty with her father, cut off her hair, dressed herself in men’s clothes, and went on a boat from Milwaukee to Cleveland. Such conduct in a young woman, evinces, in the clearest manner, a mind insensible to decorum, delicacy and purity of life. But her departure from tbe path of rectitude and propriety, since ber marriage, bas been greater and more glaring. At wbat time sbe commenced attending German balls and dances upon Sunday evenings against tbe wishes of ber husband, though sometimes attended by him, does not very distinctly appear, but that sbe was accustomed to do so is a fact established beyond all doubt.

Again; ber mother testifies that sbe bad often threatened to kill ber husband, and that sbe intended going from home awhile, and then return and stay a few weeks to break and destroy wbat sbe could, and make trouble for ber husband. This, taken in connection with tbe fact that sbe did actually leave home at times — once clandestinely in tbe fall of 1854, and was gone three or four weeks; at another time, leaving ber husband while visiting friends in Ohio, and coming home without him ; ber visiting bouses of ill-fame; associating with prostitutes, riding with them by day through tbe streets of a large city; and wbat does it all show, but that ber conduct bas been most wanton, most wicked, and most disgraceful ? And if after having set at defiance public sentiment and good morals, and contemned her husband’s wishes and authority; if she is beaten and abused by a drunken husband, and called vile names, and married life rendered insupportable by bis cruelty, whom has she to blame for the evil but herself? Certainly a wife can give no greater provocation for ill-treatment than conduct like this. And although, “ even among the very lowest classes there is generally a feeling of something unmanly in striking a woman,” yet, if the offence can be at all palliated, or excused, it is when a wife, by lewd and lascivious behavior is bringing dishonor upon ber bus-band and children.

Believing that in tbe present case tbe petitioner bas by ber own misconduct provoked the ill-treatment of which she complains, we have to suggest, that tbe way of reform is open to her; and if afterwards the husband is guilty of cruelty, she can come into court with clean hands, and ask for its interposition in her behalf.

Tbe decree of tbe Circuit Court must be reversed, and tbe petition of tbe appellee dismissed.  