
    MARTHA WILCOX vs. LITTLEBURY WILCOX et al.
    As a petition to re-hear a cause does not per se stay proceedings on the decree sought to be re-heard, and when it is allowed, affords to the court an opportunity of correcting any injustice it may inadvertently or erroneously have committed, it is almost a matter of course, unless the application be unreasonably delayed, not only to receive a petition, but upon it to re-hear the cause.
    It is proper for a court to refuse to re-hear a decree rendered by consent, because it is, in truth, the decree of the parties; but if a decree be the finding and judgment of the court upon the bill, answer, proofs and exhibits in the cause, an interlocutory order subsequently rendered by consent, upon the footing of that decree, will not prevent the impeaching of the decree for error.
    Inhere, under a marriage settlement, the property of the wife was conveyed to a trustee upon trust, “ to pay to, or to authorise and empower, the husband to take and receive from time to time, during his life, as the husband of his said wife and not longer, or after he shall so cea?e to be, the interest, profits, and annual produce of the said property, to and for his own use, and that of his said wife, but so that the same is in no wise to be subject to his debts,” it was held that the wife was entitled to a decent support and maintenance out of the means placed jn her husband’s hands, only so long as she remained living with him, unless he turned her away, or hylintolerabie ill usage compelled her t.o leave him.
    On the 22nd of February, 1828, a marriage having been agreed upon, and being about to be solemnized, between Littleberry Wilcox and Mrs. Martha Hudson, the said parties executed an indenture with Samuel Johnston, a trustee for that purpose selected, whereby all the property then belonging to Mrs. Hudson, was conveyed' to the said Johnston, his executors, administrators and assigns, in trust for her, the said Martha, until the intended marriage should take effect; and from and after the solemnization thereof, upon trust, “ to pay to or to authorise and empower the said Littleberry to take and receive, from time to time, during the life of the said Littleberry, as the husband of the said Martha, and not longer or after he shall so cease to be, the interest, profits and annual produce of the said property, to and for his own use, and that "of the said Martha; but so that the same is in no wise to be subject to the debts of the said Littleberry.” And by the said settlement, it was agreed that the said Martha should have power, during the marriage, to make a last will testament, and thereby dispose of the said property at her pleasure; that the settlement thereby made, and intended to be made, for the said Martha, was in full recompense and bar of dower or a distributive share out of the estate of the said Littleberry; that the trust thereby raised, should terminate at the death of the said Martha; and in the event of her dying without making any last will or testament, the property thereby conveyed should go to, and vest in, the next of kin of the said Martha. Shortly after the execution of this indenture, the said parties married, and lived together thereafter as man and wife, until about the first of October, 1835, when Mrs. Wilcox left her husband and home, and took up her abode with her friend Mrs. Shine; with whom, except on occasional visits to her husband’s residence, she has continued to dwell ever since. In October, 1836, Mrs. Wilcox, by her next friend, Mrs. Shine, filed her bill in the Court of Equity for the county of Halifax, against her,husband and Samuel Johnston. This bill was subsequently amended; and as so amended, stated the marriage settlement and the subsequent marriage of Littleberry Wilcox and Martha Hudson; and charged that Johnston, the trustee, had declined to act as such, and for some time had been removed to parts unknown; that since the marriage, her husband had enjoyed the annual interest and profits of the property so conveyed in trust to the said Johnston; that part of the said property consisted of negro slaves and of the issue of some of these slaves, born since the marriage; that she had been informed and believed, that her said husband was about to take the slaves away to the South himself, or was offering them for sale to a person or persons, whose avowed intention it was to carry them out of the jurisdiction of the State; that she apprehended some disaster of this kind to the said slaves, to be caused by the defendant, “ from whom she is separated, and cannot live on terms of peace, on account of the ill treatment of her said husband;” that during her separation, he had furnished her with a few articles only, and those of very inconsiderable value for her livelihood; and that these were wholly inadequate for her reasonable support and comfort; “ whereas she is advised that, although the rents and profits of the property conveyed, were properly receivable by him, yet that he held the same for the joint support of himself and the plaintiff; and that, on a separation under the circumstances alleged, she was and is entitled to such part of the yearly profits of the property conveyed by the marriage settlement, as was and is necessary for her decent maintenance and support.” The bill prayed “that the defendant Littleberry, may be enjoined and restrained from sending away or selling the interest which he hath in the said slaves; that the plaintiff may be decreed a decent support since her separation from him, and such further relief as her case requires; that another person be substituted as a trustee, in the placé of the defendant Samuel; and that a writ of sequestration issue to keep and preserve the said slaves.” The defendant, Samuel Johnston, was not served with process, but made a party by publication; and as to him, the bill was taken pro confesso, and set down for hearing ex parte. The defendant, Wilcox, answered the bill. In relation to the charge of designing to make away with the negroes, he positively, in his answer, denied that he entertained, or ever had entertained, any such purpose; and in relation to the plaintiff’s claim to support, he declared that she separated from him without any reasonable cause, not because of his ill treatment, but from an influence oyer her, exerted by others for interested purposes, and against his wishes; submitted that he was not bound to furnish her with any support, while thus living apart from him; but insisted that he had, nevertheless, from time to time, supplied her wants a^ar and as fully as he could prevail upon her to make them known.
    To this answer, there was a general replication — at the fall term, 1837, upon the hearing ex parte as to Johnston, it was ordered that Andrew Joyner and Rice B. Pearce, be appointed Trustees in the place of the said Johnston. At the spring term, 1839, the cause coming on to be heard upon the bill as taken for confessed as against the defendant, Johnston, and as between the plaintiff and the defendant, Wilcox, upon the bill, answer, proofs and exhibits, it was decreed as follows: ‘.‘His Honor doth declare that the defendant did claim that the slaves referred to in the bill were subject to his entire control; that he had a right to remove them out of the State and to sell them; and that he, the said Wilcox, did intend to remove and to sell thesame; and the court doth declare, thatupon the true construction of the marriage agreement referred to in the pleadings, and exhibited in the .cause, the said defendant hath no right to the possession of the lands and slaves therein mentioned, but only to receive, during the joint lives of himself and the plaintiff, as man and wife, the increase and yearly issues and profits thereof; and that the said increase and yearly issues and profits do exclusively belong to the defendant, but are receivable by him for the joint use of himself and the plaintiff; and that until a reconciliation shall be effected between them, and they shall again reside and live together, the plaintiff is entitled to be allowed, out of the issues and profits, a suitable sum yearly for her maintenance and support; and that the said allowance should be made for the time past, in which they have been separated, as well as any separation which may take place after a reconciliation shall have been effected. And the court doth declare, that on failure of the defendant to pay, upon request, into the hands of the trustees, for the separate use of the plaintiff, such sum as may become due for such, support and maintenance; the said trustees shall resume the possession of the said property, manage and control the same, and, after deducting all proper charges and allowances, and retaining for the use of the plaintiff such sum of money as may from time to time become due for such support and maintenance, to pay over the residue thereof to the said defendants; and the court doth further declare, that the plaintiff had a right to require, and ought to have, adequate security of the defendant, that the said slaves will not be removed out of this State, but will be kept at all times within the jurisdiction of this court; will be surrendered when required by the trustees or survivor of them, and will be forthcoming at the expiration of the defendant’s interest therein, and to be then surrendered to the person entitled to the same, under the marriage settlement aforesaid; therefore it is ordered and decreed that the Master ascertain and report to the next term, whether, and how long, the plaintiff and the said defendant have been living separate and apart; whether, during such separation, the defendant had contributed any thing, and if so, how much, and to what amount, towards the plaintiff’s support and maintenance; whether they are now reconciled and again living together as man and wife; what is the value and increase of the estate mentioned in the said marriage agreement, and what yearly sum will be a proper allowance for the support and maintenance of the plaintiff during her past and any future separation from the defendant. And it is ordered and decreed that the defendant Wilcox do execute and deliver a deed of release and assurance of all his interest in the said property to A. Joyner and E. B. Pearce, the trustees heretofore named by the court, upon the trust declared in the said marriage agreement, the form of the said deed to be settled by the Master; and that said defendant pay all the costs of the suit, and the court reserves further directions until the coming in of the Master’s report.”
    At the succeding term of, the court in the fall of 1839, the following orders were made, viz: “ the Master having made his report to this term, and the defendant being desirous to have time to except thereto, and to procure further testimony, and having moved therefor, it is, by consent of parties, ordered, that defendant have time until the next term to except to the said report, and that the parties may take further depositions and file exhibits, and that the plaintiff may amend her bill; and also it is by the like consent, ordered, that the defendant, before the first day of the ensuing court of Halifax, pay into the office of the Clerk and Master, for the use of the plaintiff, $>400, and on failure, execution may is-. sue therefor, the said sum, to be considered as a payment on account of the sum stated in the report.”
    At the spring term, 1840, the defendant Wilcox prayed for leave to file a petition to re-hearthedecree rendered against him at the spring term, 1839, and lhat the cause should be re-heard before his Honor, which motion was refused. From the dis-allowance of this motion, the defendant prayed an appeal to the Supreme Court; and this prayer was granted. But at the same term, exceptions having been filed to the report of the master, and the proofs on both sides being completed, cause was finally set down for hearing, andón motion of plaintiff, was ordered to be transmitted to the Supreme Court.
    
      The Attorney General for the defendant.
    
      Iredell and Badger for the plaintiff.
   Gaston, Judge,

having stated the case as above, proceeded as follows: It does not appeal- for what reason the Court refused permission to the defendant to file his petition for a re-hearing. As such a petition does not per se stay proceedings on the decree sought to be re-heard, and when it is allowed, affords to the Court an opportunity of correcting any injustice it may inadvertently or erroneously have committed^ it is almost a matter of course, unless the application be unreasonably delayed, not only to receive a petition, but tipon it to re-hear the cause. It is said here, however, that the Court properly refused the leave asked for, because it was in. effect to obtain a re-hearing of a decree rendered by consent. We do not think só. The decree to which the petition distinctly refers, is that of the Spring term, 1839, which purports to be in no respect founded on consent, but to be the finding and judgment of the Court upoh the bill, answer} proofs and exhibits in the cause. We can very well understand the propriety of the Court refusing to re-hear a decree rendered by consent, because it is in truth the decree of the parties; and in such a decree, ^ s tat pro rations voluntas,” their will is a sufficient reason. But we do not see why an interlocutory order, subsequently made upon the footing of that decree, although rendered by consent, will prevent the impeaching of the decree for error. Such decree remains, nevertheless, the decree of the court; and until it is suspended or reversed, must be executed either voluntarily or compulsatorily. Facilities given to its execution, ought not to bar a becoming and regular enquiry into the merits of the, decree itself.

Considering, therefore, that the defendant, Wilcox, is entitled to be heard here, in relation to the matters adjudged by the decree, which he sought below to have re-heard, as well as upon the matters presented by the report and exceptions, we’have heard the cause de novo.

remove1 tn slaves out byonehav-of íímited^inthem1 hl though idle, the^hsoÍUgTOuntíer for claim-toSpreTCnty movai?"

The charge of “ m too vjgue foundaúon sentence!*31

Upon such hearing, we have come to a conclusion, differing greatly from that which was declared below. We agree thus far with his Honor, that the defendant has not only claimed to have a right to sell his interest in the slaves comprehended in the marriage settlement, a claim perfectly well founded, we suppose — but has thrown out threats of a purpose to sell them out of the State. We do not agree to the declaration, that the defendant actually purposed or intended to remove them. We believe that these were idle threats, made in vexation after his wife had left him, and for the purpose of being repeated to her. Nevertheless, as they have aff01'ded her a ground for claiming that her solicitude about the slaves should be quieted, we acquiesce in the propriety requiring some security from him against a removal of the property without the State. As he is confessedly a man un®mharrassed fortune, a simple injunction to this effect is all that is now necessary.

In the court below, the claim of Mrs. Wilcox to a decree against her husband for maintenance and support, during her separation from him, was not put upon the ground that such separation had been compelled by his ill treatment, Nor, in our judgment, could it have been placed upon that ground. Neither the pleadings nor the proofs, will justify a declaration that she was compelled to leave him because of his ill treatment. No objection, indeed, has been taken on either side to the proofs — if proofs they may be called — óf the matters of disagreement between the parties, and of the causes why they live apart; and for the satisfaction of the parties, we have heard these proofs fully, and considered them with care. We feel it incumbent on us however to say, that none °* ^hem were properly admissible. Perhaps a charge can scarcely be brought by a woman against her husband, more indefinite than that of “ ill treatment,” comprehending as it eve5T offence against the law- of connubial love from the slightest inattention to the most brutal outrage. So vague an imputation cannot be the foundation of a judicial sehtence. Besides, it canriot for a moment be pretended, that every act of improper conduct, on the part of a husband, will authorise a wife to leave her proper place — his side, his homeland if she alleges that he has been guilty of such gross misconduct as to justify this seeming revolt from her duty, she must so charge the misconduct, that it may be judicially seen, when the fact is ascertained, whether-it' be of that character which induces a forfeiture of his right to her society, and that he may have a full opportunity of answering distinctly to the misconduct charged, and of explaining or disproving it. It would be a wasto of time — if not worse — to attempt any analysis of the complaints and recriminations of the parties — -the neighborhood rumours — the various surmises and conjectures and opinions of the witnesses — relative to the misunderstandings and separation of this married couple, with which, ¿nd with little else beside, their depositions are filled. We pronounce the testimony as inconclusive and unsatisfactory as the charge is vague. It lays no solid foundation whereon to adjudge which of the parties was to blame, and therefore renders it probable that neither was without fault. It is indisputable, however, that she separated from him — and we áre obliged to say, that she has not shewn any sufficient cause for that separation.

The claim of the plaintiff must then rest on this, that under the marriage settlement, the profits are settled to the common use of the husband and wife, and that she has, therefore, such a distinct beneficial interest in these profits as to entitle her to a portion thereof, independently of her husband, and whenever she chooses to live apart from him. We cannot acquiesce in these views. No part of the profits of the property is settled to the separate use of the wife. The whole are receivable by the husband, and though the object or purpose for which they are limited is the use or benefit of his wife as well as of himself, they are receivable by him as her husband, and applicable to her use as his wife. There is no intimation of any purpose in this marriage, variant from that perfect union of persons which the law contemplates in such a connection. These profits are given to him, that he may the better comply with his duty to provide for his wife — but he is not bound to provide for her, when she disclaims his protection, and refuses to abide under his roof, It is revolting to the best interests of domestic morality and public policy, to put upon the settlement a construction which would amount to a prospective provision for separation. — and offer inducements for the violation of the plainest and most sacred duties. The plaitiff is entitled to a decent subsistence, in proportion to the extent of the means placed in her husband’s hands. — but it is while she remians under his wing, where she has plighted her troth to stay. If, indeed, he had turned her away — or by intolerable usage compelled her to leave him — then, as he has rendered the performance of her duties impossible, his obligation to support h.er, and her claims on him for subsistence, would not thereby be impaired.

Our opinion, therefore, is, that the interlocutory decree which the defendant, Wilcox, prayed to have re-heard, ought to be reversed as erroneous. And, upon the whole matter, this court declares, that because of the apprehensions of the plaintiff, in regard to the safety of the negroes comprehended in fhe marriage settlement, excited by the defendant’s threats to sell them out of the State, the plaintiff is entitled to an injunction, restraning the defendant from removing the said slaves, or causing them to be removed beyond the jurisdiction of this courtrv-and approving the order whereby A. Joiner and it. B. Pearce have been appointed trustees, in the place of Samuel Johnston, the court directs that the plaintiffs bill in respect to all the residue of the matters therein contained, be dismissed.

The plaintiff, or her next friend, must pay the costs of taking the account. The residue of the costs must be paid by the defendant.

Per Curiam Decree accordingly.  