
    Wytheville.
    Kinsey v. Kinsey.
    June 15th, 1893.
    
      Divorce — Cruelty—Case at bar. — In a wife’s suit for divorce a mensa et thoro for cruelty, it was pi-oved that habitually defendant annoyed and mortified her, was often drunk and abused and struck her, came into her room at night with sword and pistol threatening to kill her, and finally drove her and her three-year-old child from the house at night, and that she was very delicate and nervous.
    Held:
    She was entitled to the relief asked for.
    Argued at Richmond. Decided at Wytheville.
    Appeal from decree of circuit court of Rappahannock county, rendered 17th November, 1891, in the chancery cause wherein Addie Kinsey, by, &c., was complainant, and Thomas Kinsey was defendant.
    The object of the suit is to obtain a decree of divorce, a mensa et thoro, of the complainant, Addie Kinsey, from her husband, Thomas F. Kinsey, the defendant, upon the ground, set forth and specially charged in the bill, of the drunken brutality and violence to the personal safety and life of the said Addie Kinsey, the destruction of her peace and the continual menace to her life, by the gross bestiality and inhuman conduct of the said Thomas F. Kinsey toward her and her infant daughter, only three years of age. The prayer of the bill is that the “ said Thomas F. Kinsey be restrained and enjoined from interfering with or in any way molesting your oratrix and her child, now with her; that your oratrix may be divorced from the said Thomas F. Kinsey, a mensa et thoro; that he, at once, and pending this suit, be compelled to pay such sums of money as temporary alimony as may be sufficient for the support of your oratrix and her child, and such other sums of money as may be required to pay costs of this suit and the fees of counsel proper to be paid to carry on this suit; that he may be compelled to make such permanent provision for the support of your oratrix and her child as may be just and right, and to secure the regular, prompt, and safe payment of the same; and that all such further and general relief may be afforded to your oratrix as may be right and just in the pre-misas, &c”
    The defendant, Thomas F. Kinsey, answered the bill, and filed his cross bill, to which the complainant, Mrs. Addie Kinsey, filed her answer, and the cause coming on to be heard, the court entered the decree complained of as follows: “ This cause came on to be heard upon the papers formerly read— upon the answer and cross bill of Thomas F. Kinsey, upon the answer of complainant, Mrs. Addie Kinsey, to the cross bill of the defendant, Thomas F. Kinsey; upon the depositions of witnesses for complainant and respondent, and upon exhibits and record evidence, and was argued by counsel; on consideration whereof, the court being of opinion that neither the complainant nor the respondent is entitled to the relief prayed in the bill of complaint and cross bill, respectively; and, especially, that the charge of adultery in said cross bill is entirely unsustained by the evidence — indeed without any evidence to support it, doth adjudge, order, and decree that both the bill of complaint, filed by Addie Kinsey, by her next friend, and the cross bill filed by the respondent, Thomas F. Kinsey, be dismissed at the cost of said defendant, Thomas F. Kinsey. The injunction against said Thomas F. Kinsey, by the decree of January 10, 1891, restraining him from disposing of his real estate, be, and the same is, dissolved. It is ordered that Thomas F. Kinsey pay to E. T. Jones, receiver in this cause, the sum of $250 as compensation to her counsel for their services in this cause, and that he have execution therefor. And it is. further ordered that Thomas F. Kinsey pay all the costs of these proceedings, both upon 'the original and cross bill, and this decree is final, &e.
    
      J. C. Gibson, for appellant.
    
      John F. Rixey and Fppa Uunton, Jr., for appellee.
   Fauntleroy, J.,

(after stating the case) delivered the opinion of the court.

Upon the pleadings and the evidence in the record, we are of opinion that the complainant, Addie Kinsey, was entitled to a decree for a divorce, a mensa et thoro, and that the circuit court erred in dismissing her bill, and in not giving her the relief prayed for, in which particular and to which extent the decree appealed from is erroneous, and is annulled and reversed. But, in other particulars, being without error, it is affirmed, with costs in favor of the appellant. ■

The case will be remanded to the circuit court of Rappahan-nock county for its further action upon the case conformed to the foregoing opinion of this court.

Reversed in part and aeeirmed in part.  