
    RIBET vs. RIBET.
    [BILLS IN EQUITY BOB DIVOBCE.]
    1. Evidence outside of issue allowable. — In suits for divorce, tbe interests of tbe public as well as of tbe parties being involved, tbe court may receive and act upon evidence showing misconduct on tbe part of the plaintiff, although such misconduct is not brought forward and relied on in the answer.
    2. Reciprocal causes of divorce defeat each other. — A suit for divorce, on anyone of the statutory grounds, (Code, §§ 1961-63,) may be defeated by proof of the existence of another statutory ground in favor of the defendant; and such reciprocal causes of divorce being proved, under separate bills, the court will not grant a divorce to either party.
    Appeal from tbe Chancery Court at Mobile.
    Heard before the Hon. N. W. Cocke.
    The original bill in this case was filed, on the 26th June, 1862, by Mrs. Elizabeth Bibet, suing by her next friend, and sought a divorce Bom her husband, Etienne J. Bibet, on the ground of cruelty; and on the 2d July, 1862, an original bill was filed by the husband, ashing a divorce from the wife on the ground of adultery. The two causes were brought to a hearing together, on pleadings and proof, when the chancellor dismissed both bills, holding that neither party was entitled to a divorce. Each party appeals from this decree, and the dismissal of each bill is assigned as error by the complainant therein.
    DaRGAN & Taylob, for Mrs. Elizabeth Bibet.
    G. Y. Overall, and Jno. A. Elmore, for E. J. Bibet.
   PHELAN, J.

These cases stand so connected with each other that they can most properly be considered together. Mrs. Bibet, the wife, proceeds for a divorce from .the bonds of marriage, on the ground of cruelty by her husband; and Mr. Bibet, the husband, in his bill proceeds upon the ground of adultery by tbe wife. The proof, we think, establishes the main allegations of the bill in both cases, and, if the matter rested there, would justify a decree in favor of each against the other.

But the courts are required always to bear in mind, that these matrimonial suits are of a triangular character. Besides the parties complainant and respondent, the public — the community at large — is considered as having a special interest in them, involving .the due maintenance of social order, and therefore constitutes a sort of third party to all suits for divorce. — Bishop, §§ 314, 382.

The introduction of this principle has led necessarily to certain modifications of the general rules by which suits are prosecuted and defended. As a general rule, a complainant in chancery must recover upon the allegations made in his bill; and neither he nor the respondent will be allowed to make proof of facts not fairly embraced within the allegations of the bill and answer respectively. The counsel for Mrs. Ribet has invoked the benefit of this rule in her case. The respondent, her husband, has no right, she insists, to recriminate against her the offense of adultery, because he does not allege it in his answer. The language of the answer, in relation to that matter, we are inclined to think, does not amount to an allegation; but, under the force of the doctrine we are now considering, that will not help her case, or preclude the court from hearing proofs, or even instituting' an inquiry to ascertain whether such be the fact or not. The court is bound to act for the public in such cases, and so has the right to hear proofs not strictly within the allegations of the bill and answer. No one deserves to succeed in a suit to dissolve the bonds of marriage, that foundation upon which the whole framework of civilized society may be said to rest, who does not come into court without great blame; and it is the right and the duty of the court to be governed by the facts of the case going to establish its true character, no matter how they may be elicited. Bishop says: A maxim in these suits, therefore, is, that a cause is never concluded as against the judge ; and the court may, and, to satisfy its conscience, sometimes does, of its own motion go into inquiry of matters not involved in tbe pleadings.”—Bishop on Mar. and Divorce, § 314; see, also, Smith v. Smith, 4 Paige, 432.

Tbis disposes of tbe only objection to tbe proof going to establish tbe fact of tbe adultery of Mrs. Bibet; and as tbe proof on tbat point is sufficient to satisfy us tbat sbe acted towards ber busband as an adulteress, we cannot award to ber a divorce for bis cruelty; and on tbe other band, as tbe proof is equally clear tbat be was guilty towards ber of cruelty, we must deny to him a divorce on account of ber adultery.

In view of tbe provisions of tbe Code of Alabama, on tbe subject of divorce, and tbe general current of authority, we bold tbe doctrine, tbat any one of tbe statutory causes for a divorce may be set up in bar of a bill for a divorce a vinculo predicated on any other of tbe statutory causes. Barbour on M. and D. § 396 et seq.; 12 Md. 53. Thus, if tbe busband proceeds for a divorce on tbe ground of adultery of tbe wife, sbe may defeat bis suit by alleging and proving tbat be himself was guilty of such cruelty towards ber as would otherwise have entitled ber to a decree for a divorce as against him; and so vice versa, if sbe proceed on tbe ground of bis cruelty, be may reply in bar tbat sbe was guilty of adultery. And, as has been already shown, if such bar is not actually set up and rebed on in tbe answer of either party, and tbe proofs in tbe case nevertheless show tbe fact to exist, tbe court is authorized and required to bear such proof, and be governed accordingly. If both are guilty of such want of fidelity to their matrimonial vows, whether in one way or another, as goes to show tbat neither is strictly an “aggrieved” party, tbe court will not disturb tbe binding force of tbat great bond of society, tbe marriage contract. Tbis is tbe character of tbe case now before us, and we shall therefore affirm tbe decree of tbe chancellor dismissing both the bills.

Before closing tbis opinion, it may be proper to remark, tbat tbe record in this case furnishes no sufficient evidence tbat tbe ill-treatment of tbe busband was induced or provoked by tbe adulterous conduct of tbe wife. Whether, if the proof were satisfactory to that point, tbe decision in the case of the husband would be different, we express no opinion.

The decree of the chancellor is affirmed.  