
    COOPER vs. COOPER.
    Western Dist.
    
      September, 1836.
    Al'PEAL FROM THE COURT OE THE FIFTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The fact that the husband, and wife lived unhappily together, and sometimes-cursed and abused each other; and where the husband even went so far as to push the wife out of the door, but without any hurt, will not authorize the wife to obtain judgment of separation of bed and board, with a view to a final divorce.
    In an action for a divorce by the husband, on the ground of adultery of his wife, the fact of adultery must be fully proved. It will not suffice that her conduct be extremely suspicious to entitle him to judgment.
    Even where the husband knows of the adulterous conduct of his wife, but continues to live with her, and becomes reconciled to his own dishonor; and takes upon himself to punish or to reform her without appealing to> the law, it is questionable if he can afterwards be permitted- to comjdain.
    This is an action by the wife for a separation of property, and from bed and board, with a view to a divorce.-
    The plaintiff alleges she intermarried with the defendant in January, 1832, and has continued to demean herself towards her husband in a proper and affectionate manner -t but that he commenced a course of treatment towards her, by abusing and maltreating her in such a manner, as renders their living together as man and wife any longer, insupportable. She therefore prays for judgment of separation from bed and board, and for her half of the community, and for her separate property.
    The defendant denied the allegations of bad treatment, and averred that his wife’s conduct had become so notoriously lewd and immoral, in her adulterous intercourse with other men, even by her own acknowledgment, that he was entitled to a divorce a vinculo matrimonii.
    
    Wherefore, he prays, by way of reconventional demand, that he be divorced from his said wife, and that her suit be dismissed.
    
      The evidence showed many suspicious circumstances to prove that the plaintiff was extremely loose and immoral in her conduct, and particularly' with a certain person who visited her by day and by night, and at unseasonable hours. It appeared her and her husband were frequently quarrelling, and both abused each other very much.
    Testimony was also introduced as to the amount and situation of their property. From the whole case, the district judge concluded that the plaintifí was entitled to a ■ separation from bed and board, and that the parties retain the control of the property that each had in possession. Judgment was rendered accordingly; from which the defendant appealed.
    
      Lewis, for plaintiff.
    
      Swayzé, for defendant.
    1. The ;evidence does hot sustain the demand' for a separation of bed and board, instituted by plaintiff
    2. Admittin,g plaintiff was abused by defendant, yet it was provoked by the former, and the abuse was mutual. This is not good cause for a separation. 4 Martinis Reports, 174.
    3. Judgment should have been rendered'in behalf of defendant on the ground of the adultery of the wife. The evidence shows her conduct to be lewd and suspicious.
    1 Moreau’s Digest, 412. Roscoe on Evidence, page 362. 2 Star Me, 439. ■
   Bullard, J.,

delivered the opinion of the court. -

The plaintiff, who sues for a separation from bed and board, represents in her petition, that she intermarried with the defendant in 18,32, and that they lived together for some time pretty well; but that notwithstanding her affectionate and proper conduct, he some time afterwards commenced a course of mistreatment towards her, which continued to grow worse and worse, frequently cursing and abusing her in the most shameful manner, insomuch that it has rendered their further cohabitation utterly insupportable, and that he at last'ordered ber out of his house, and she has taken refuge at the house of her mother.

The fact that the husband and wife lived unhappily together, and sometimes cursed and abused , each other, and where the husband even went so far as to push the wife out of the door, but without any hurt, will not authorize the wife to obtain judgment of separation of bed and board, with a view to a final divorce.

In an action for a divorce by the husband, on the ground of adultery of his wife, the fact of adultery must be fully proved. It will' not suffice that her conduct be extremely suspicious to entitle him to judgment.

The defendant, in his answer, alleges, that he always treated the plaintiff in a kind and proper manner, until her conduct became' so openly and notoriously lewd, immoral and improper, that it was no longer supportable, and, he admits, that he may on some occasion, when excited by the bad conduct of the plaintiff, and her unblushing avowal of her own dishonor, have expressed himself in indignant and harsh terms of her. He further alleges, that his wife has been guilty of adultery with one William McDaniel, and that she has, on many occasions, gone about the neighborhood both by day and night, to balls and other places of amusement, with different men, contrary to his express wish and command, sometimes absenting herself from home for two or three days and nights at a time. He therefore claims in reconvention a divorce a vinculo matrimonii.

The evidence to prove the cruel treatment on the part of the husband is very vague. The parties appear to have quarrelled and abused each other a good deal, but it is not so clear who was to blame. The only personal violence shown, consists in his pushing her out of the door on one occasion, but he appears to have been provoked by an insinuation on her part that he was not a gentleman, and that the owner of the house in which they lived was. It further appears that she went back into the house through the same door, and that the husband then walked off. On this occasion she cursed and abused her husband for threatening a negro girl for having told lies about the plaintiff’s own daughter.

According to the principles upon which this .court proceeded, after much consideration, in the cases of Fleytas vs. Pigneguy, 9 Louisiana Reports, 419, and of Tourné vs. Tourné, Ibid., 450, we are of opinion the plaintiff has totally failed to make out a case for relief.

With respect/to the demand in reconvention for a divorce, on the ground of adultery, we are of opinion, that the fact of adultery is not sufficiently established by the evidence, although the circumstances are extremely suspicious. Her avowal, as alleged by the defendant, is certainly not proved. If it had been, and he continued to cohabit with her and become reconciled to his own dishonor, and took upon himself to punish or to reform her, instead of appealing for re(jregs to |-qe iaws 0f the country, it is questionable whether he could afterwards be permitted to complain. Upon the r V r whole, we conclude, that the prayer of neither party ought he granted. The question with this court is not whether ^ ^01' ^le parties, or for society, that a separation should take place in cases like the present, but whether the parties have brought their case within the law which regu-^ates khe most important relation of social life,

Even where the husband ^nows ™u.s. conduct ot his wiie, but continues to live comes ’ dishonor118 and takes upon Mm-to' rfonm'te” ing'to'theTawflt is questionable wardsbepermlt-ted to complain.

It is, therefore, ordered, adjudged and decreed, that the jU(jg.ment D¡strict Court be annulled, avoided, and reversed; and it is further ordered, that the suit be dismissed, and that the plaintiff pay the costs in both courts.  