
    Alfred Elzey v. Elizabeth Elzey.
    Imbecility of mind is not a sufficient ground of divorce, unless it amounts to idiocy or insanity. Nor will intoxication at the time of the marriage, accompanied with circumstances of fraud, combination, or circumvention on the part of the father and friends of the wife, to induce the petitioner to marry his daughter, give the Court jurisdiction to decree a divorce, unless the petitioner was insane, within the meaning of the act.
    This was a petition by Alfred Elzey to be divorced from the bonds of matrimony with his wife, Elizabeth Elzey. The petition stated that the parties were married in the month of October, 1855, at the house of Elihu Hasting, the father of the respondent; that the petitioner was insane at the time, and utterly incapable of making or entering into a contract of marriage; and that the respondent was a woman of bad fame and character, and had given birth to two illegitimate children before the marriage. That the petitioner had never seen her but once before their marriage, and that only a few days previous to it, when he was carried in a state of intoxication to the house where she resided by the friends of the respondent; and that, in the afternoon preceding the evening of their marriage, he was made drunk by certain friends of the respondent ; that her father then took him out to his house and sent for a minister, a relative of the family, to perform the ceremony, and who came and married them whilst the petitioner was in that condition; and that her father procured and paid for the marriage license. The petition further stated that the father of the petitioner, now deceased, had devised a considerable estate to him, worth twelve thousand dollars or more, in fee tail; and, well knowing his incapacity to transact any business, or manage his own affairs, as he never could learn to read or write, had appointed a testamentary trustee to take charge of the estate devised to him, during his life; and that the only motive of the parties for inveigling him into the marriage was sordid and mercenary, and to obtain the control of his person and property, or the annual proceeds of it; that the marriage was procured by fraud and circumvention and without his consent, and that he had no affection for the respondent, and believed she had none for him; and that 'he had left her the next day after the marriage, and had never cohabited and never intended to live with her again. Wherefore he prayed, &c.
    Both the evidence and the argument in the case are disclosed in the following opinion of the Court, announced by Houston, J.:
    In this case the petitioner prays for an absolute divorce from the respondent, on the ground that he was insane, and incapable, from an inherent or natural weakness and imbecility of mind, to contract a valid marriage; and also on the ground that it was brought about by the interested efforts and fraudulent procurement and circumvention of certain relatives and friends of the wife, against his will ■ and consent. The case presented in the petition is certainly a strong one; and, if it is sustained by the proof adduced in support of it, so far at least as to bring it within the limited and specially delegated jurisdiction of this Court in the matter of divorces, would seem, without any doubt, to entitle the petitioner to the relief which he seeks. And this presents, at the outset, two questions for our consideration: first, to what extent the evidence supports the allegations contained in the petition; and, in the next place, whether this Court has authority, upon that evidence, under the second and third sections of chapter seventy-five, Revised Code\ 288, to declare the marriage null and void. The evidence, we believe, was substantially as follows:
    On behalf of the petitioner, John Moore, a witness produced and sworn, stated that he had known the petitioner thirty years, and during that time had never known him to transact business, of any importance. He always resided with his father, Robert Elzey, in his lifetime, and he never knew his father to intrust any business to him to perform. His father was a slaveholder, and always iiitrusted his business to his black men, instead of his son Alfred, to attend to matters for him. He had known the petitioner to sell apples and fruits and nuts and a little corn, but never to superintend or transact business of any moment. That he was very fond of liquor, and would drink to excess whenever he could get it, and that he had often seen 'him intoxicated. He was weak-minded, and witness had frequently heard him try to count ten, but he could not do it. That he saw him twice on the day of his marriage; once he was in company with Kendal B. Hearn, and the other time with Elihu Hasting, his wife’s father; he was intoxicated on both occasions, but not as drunk as he had sometimes seen him. He was in company with Kendal B. Hearn and Elihu Hasting about sundown, at the magistrate’s office in Laurel, when his marriage license was procured, and went out of town with them.
    
      Peter White,
    
    another witness produced and sworn on behalf of the petitioner, testified that he was present at the marriage, but was not well enough acquainted with him to say whether he was drunk or not at the time, but he thought he had been drinking. . He stood up of his own accord when the ceremony was performed, and when he was asked by the minister in the course of it, if he would take that woman for his wife, he at first hesitated and did not answer the question, until some one told him to answer it. That none of the relations of the petitioner were present, nor was Nathaniel Horsey, his trustee, there.
    Dr. Stephen Green,
    
    another witness for the petitioner,
    stated that he had known him from his childhood, and had been a practitioner of medicine in his father’s family for forty years. He did not think, however, that he was an idiot, or lunatic, but considers him weak-minded. That he cannot tell how many cents make a fi’penny-bit, and is not capable of transacting business of any importance, and that he had always been in this state of mind from his infancy up to the present time.
    
      John M. Phillips,
    
    another witness on the same side, stated that he has known the petitioner about twenty years,,but never knew his father to intrust the'transaction of any business to him. He once heard hipa asked 'what he would work for per day, and his answer was, thirty-seven and a half cents; he was then asked if he would not take seventy-five cents a day; he said he would not, but would take thirty-seven and a half cents; and that he did not know at that time the difference between the two sums.
    
      Winder Hasting,
    
    another witness for the petitioner and an uncle to the wife, testified that he was' present at the marriage, and went for the preacher to perform the ceremony, by the request of his brother, Elihu Hasting, the wife’s father; that Kendal B. Hearn and his wife and daughters were present; that Alfred, the petitioner, had been drinking, but was not drunk; that his wife was about twenty-five years old, and was the mother of two illegitimate children, both of whom were still living. That no person that night, or at any other time to his knowledge, persuaded the petitioner to marry her; on the contrary, he seemed to be anxious for the marriage, and requested the witness to tell him how to do, as he had never seen any one married, and appeared to be very much pleased after the ceremony was over; claimed relationship with his wife’s relations, called the witness “ cousin” and her father “ pap,” and introduced the witness to her as Mrs. Elzey. That the petitioner lived about seven miles from Elihu Hasting’s, but he had never seen him there, or in company with his wifé before the marriage, and that he left the next day after the marriage with his wife, but she returned the following day to her father’s without him, and he had been back only twice since.
    
      William Dashiell,
    
    a witness on the same side, states that he has known the petitioner twenty years, but had never known him to transact any business for himself, or any one else, and that he could not count ten.
    
      William Ellis,
    testified that he had known the petitioner thirty-five or forty years, and had never known him to transact any business. On the farm his father always put his negroes ahead, and not him, to do and attend to matters in his absence. That as the administrator of his stepmother, the witness paid him a legacy which she left him, and he would at any time acknowledge the receipt of it before Avitnesses, but woul4 never sign a receipt for it, on the contrary, he would get angry when asked for a receipt, and say that the witness only wanted to humbug him, and that he cannot read or write.
    
      Charles Elzey,
    
    another witness, states that he is the uncle of the petitioner, and has known him from his infancy, but never knew him to engage in or perform any business of any account, or his father to intrust any to him to. do, or attend to. That he cannot read or write, and he thinks he does not know his letters. He was sent to, and well tried at school, but could never learn. He can count five, but not more; he can count five cents, but no more money. He is very fond of intoxicating liquors, and will drink too much whenever he can get it.
    
      William G. Horsey
    
    testifies that he has known the petitioner twenty-five or thirty years, and that he will get drunk whenever-he can get the liquor. That he saw him about noon on the day of his marriage, and that he was then very drunk; but he saw him again about sundown, when he was not as much so; he was then with Kendal B. Hearn, who is a relation of his wife’s; that they went to school together, and that he could never learn.
    
      Daniel Hearn
    
    also testifies that he went to school with the petitioner to two different teachers, and that he could not learn much, and that he is very fond of intoxicating liquors. That he -has frequently known him to buy tobacco and molasses at his father’s store, and pay for it.
    
      Nathaniel Hearn,
    
    a witness for the respondent, states that he has known the petitioner from his childhood; and that he has frequently driven his father’s teams with loads of grain to town, and has dealt a good deal at his store, and bought things for the family, and for himself, usually in a small way. That he could not count money very well, but he could do it as correctly as many others he had known. That his wife was an industrious and economical woman, ■ and would make him as good a wife as he can get anywhere ; and that he has often said, in his presence, he intended to get marriéd.
    
      William W. Dulaney,
    
    another witness for the respondent, testified that he had known the petitioner twelve or fifteen years; and that, after his father’s death, he once asked him to act as his friend, or “ to stand at his back,” as he termed it. He said his father had made provision for him in his will, but he did not get a sufficient support, and he wanted more money; that he had counsel, and had been advised to get a next friend; and witness was surprised to hear him talk with so much intelligence on such a subject, for he knew him to be naturally of weak and imbecile mind.
    
      Kendal B. Hearn,
    
    a witness for respondent, stated that he knew the petitioner to visit his wife twice prior to his marriage, and that he never persuaded, urged, or threatened him, to induce him to marry her; but he seemed to be anxious to marry her, and he believed he knew and understood what he was doing. That he had been to see her since his marriage, and he had heard him say that he wished to live with her, and would do so if other peoplé would let him ; by which he-understood him to refer to his relations. He had also heard him say that he wanted to go to housekeeping, but would never do it anywhere but on' his father’s home farm; and if his uncle Charley did not give it up next Christmas, he would pitch him out of it. That he and his Wife went home with the witness and his wife the morning after the marriage, and when they got to his house, the petitioner left his wife there and went away, and said he would be back the next day, but he did not come; and that he went with him twice to see his wife before the marriage, at the request of the petitioner.
    
      James Hasting,
    
    another witness on the same side, testifies that tlie petitioner wanted -at one time to hire him to bring his wife to him, and said he wanted to live with her, and would live with her, if it were not for his uncle, Charley Blzey. At another time he told the witness, that if he went to see his wife he should have no peace when he came back.
    
      Samuel Kinney
    
    also testified that he heard him say, that he wanted to live with his wife, but other people would not let him. The witness further stated, .that he knows of nothing to prevent him from going to his wife’s father’s when he chooses; that he is treated kindly by his trustee, and goes better dressed than in his father’s lifetime.
    
      
      Elisha Callaway
    
    also states, that he asked him why he did not go out and see his wife; and he replied that Charles Elzey would not let him. That he was at his marriage, and did not think he had been drinking much; he saw no influence exerted upon him in any way to induce him to marry his wife.
    
      Winder Hasting
    
    also testified, that he met him one day, and asked him why he did not go and see his wife? to which he replied, that he might as well quit one time as another, for if they knew him to go out there, they would beat him like a dog; and again he said, if they knew him to go out there, they would give him particular h—11.
    
      Polly Perdee
    
    testifies, that before the petitioner was married he frequently came to see her, and wanted her to marry him; and behaved himself properly, and talked sensibly on the subject. This was about five weeks before he was married.
    
      Rev. James Wallace
    
    stated, that he is an agent of the American Bible Society, and that he asked the petitioner, on one occasion when he met him on the road, if he did not wish to buy a Bible; and he replied by asking him if he could not give a poor fellow one; and said he could not read, but he could get some one to read it to him. He said he would like to have a Bible. About two weeks before his marriage he again met him in Laurel, when he asked the witness if he was about home of evenings; he told him he was, and asked the reason of his inquiry—if he was going to be married? and his reply was, “¡Never mind about that; he. would want him some of these evenings.”
    
      Elizabeth Hearn
    
    stated, that she was at the wedding, and saw no influence used by any one to induce him to marry his wife; that he had not been drinking any to hurt him.
    
      
      Martin Collins,
    
    a witness, in reply for the petitioner, states that he is acquainted with him and his uncle, Charles Elzey, and resides about a quarter of a miíe from the latter, and knows that Alfred is allowed by his uncle to go when and where he pleases, and that he exercises no severe influence or control over him, and that he is treated kindly by his uncle and his family; and that on the day the marriage license was procured, he heard Kendal B. Hearn say to Alfred, opposite the magistrate’s office, to stop, he wanted to get a piece of paper for him.
    
      William L. James,
    
    a witness on the same side, states that he saw the petitioner the day he was married, as he came into Laurel, and as he went out again. He came in with Elihu Hasting, and went out with him and Kendal B. Hearn, and that ,he was about half drunk when he left town about sundown.
    
      Leonard Hasting,
    
    the clergyman who married the parties, testified that he married them in October, 1855, and that he is a second cousin to Elihu Hasting; and that Winder Hasting, the brother of Elihu, came after him to marry them; that he was never asked by the petitioner to marry him, and that Kendal B. Hearn paid him the fee for marrying them. That when in the act of marrying them, he asked Alfred the usual question—if he would take that woman for his wife ?—he hesitated, and did not answer, until Kendal B. Hearn spoke up, and told him to say, “ I will;” which he did. That he did say, after he left, that if he had known before he went who they were that were going to he married, he believed he would not have gone. On cross-examination, the witness stated that he saw no influence • exerted upon the petitioner to induce him to enter into the marriage, by any one; but he acted voluntarily and of his own accord in the matter, and appeared cheerful, like anybody else about to be married. After thé ceremony was over, he sat down and talked with his wife, and he thought his hesitation in answering the questian, in the ceremony before mentioned by him, was owing to the fact that he did not know what it meant, and how he should answer it. That his reason for saying, after he left, that if he had known who were to be married, he believed he would not have gone, was what he had learned in regard to the petitioner’s being weak and childish; but he did not know him before that time, although he had before heard of him.
    
      William M. Phillips
    
    stated that he once went to school with the petitioner, a short time, when he was nineteen or twenty years of age, and that he could not learn the alphabet, and is now about forty years old. Has known him to, buy tobacco, but never heard him ask the price of it, or anything else he got; he could not count the change if any was given him.
    
      Edward W. Moore,
    
    the officer who issued the marriage license, states that Kendal B. Hearn called upon him for it, and that the petitioner was not then with him, but was present when it was issued. He said nothing himself, however, about wanting the license. Hearn entered as surety in the bond, and Elihu Hasting, his wife’s father, paid the fee for it; and if the petitioner was under the influence of liquor at the time he did not perceive it. That he saw no influence exerted upon him in any way to induce him to do what he did. As he was about leaving the office, witness remarked to him that he supposed he was going to be married, to which he answered, he guessed so; and that he evinced no hesitation or reluctance in regard to what was going on in the office at the time.
   This closes the evidence, so far as it is material to state it, and which I have thus been both tedious and particular in recapitulating from my notes, taken on the hearing, because I think it affords a more accurate conception of the mental weakness, character and condition of the petitioner than any general description which could be given of him. The decided weakness and imbecility of his intellect by nature cannot be doubted, after reading the testimony; but whether it was such a degree of mental infirmity as would constitute him an insane party, within the meaning and’intention of the second section of the chapter in the Revised Code before referred to, is not a question so easily and readily answered in the affirmative. The words of that section áre: “ The said court shall have sole cognizance to decree marriages null and void which are prohibited by law for consanguinity, or affinity, or between a white person and a negro or mulatto, or where either of the: parties had, at the time of the marriage, another husband or wife living; or where either of the parties was at that time insane.” This last clause is concise, but it contains all that is to be found in the law which can possibly have any relation to this case. Was, then, the petitioner insane at the time of the marriage, within the meaning and contemplation of this clause in the act ? It is true, as has been said, that the solution of this question does not depend so much on the ordinary or popular signification of the word as on its legal sense, the sense in which it is employed in the books, and that Lord Coke classifies both idiots and lunatics as insane persons; the former, as he defines them, being so from birth, and the latter from accidental or supervening causes,.usually attended with lucid intervals; in which respect in particular they differ from the former. But according to his quaint and familiar definition of an idiqt, he ranks him, we think, much beneath the grade of the petitioner’s stolidity and imbecility, feeble as his intellectual capacity has been proved to be; for he defines an idiot to' be “ one who does not know his own, father or mother, brothers and sisters, cannot tell the days of the week, nor count ten.” But the petitioner knew his father and uncle, and his trustee, and even the nature of his office, and quite surprised one of the witnesses by the-degree of shrewdness and intelligence which he exhibited on one occasion, when speaking to him on the subject of the legal relation which he bore to him, although, as others have proved, he could never learn to count more than five. Independent of this distinction, however, we do not consider, upon a review of the whole evidence, and upon the authority of the adjudged cases in the ecclesiastical courts of England on this question, where the validity of marriages has been frequently assailed on this ground, that the petitioner was incompetent to contract matrimony, or that his mental weakness or deficiency of understanding amounted to that degree of incapacity or unsoundness of mind contemplated hy the act, which would absolutely disqualify him from entering into a valid contract of that nature. It would be dangerous, perhaps, as well as difficult, to prescribe the precise degree of mental vigor, soundness and capacity essential to the validity of such an engagement; which, after all, in many cases depends more on sentiments of mutual esteem, attachment, and affection, which the weakest may feel as well as the strongest intellects, than on the exercise of a clear, unclouded reason, or sound judgment, or intelligent discernment and discrimination, and in which it differs in a very important respect from all other civil contracts.

On the other and additional ground, alleged in the petition for the divorce, that is to say, that he was intoxicated at the time the ceremony was performed, and that he was made so by those who had an interest and an object, by discreditable arts, to bring about what we must certainly call a discreditable match for all concerned in it, it is scarcely necessary to remark, that although drunkenness is sometimes called voluntary madness, it is not the madness referred to in this section under the denomination of insanity, even if we were satisfied from the evidence, which we are not, that the petitioner was too much intoxicated at the time to comprehend and understand the nature and obligation of the engagement and relation he was entering into. hTeither is it competent for this tribunal to take into consideration, in connection with the two grounds above adverted to, the alleged fraudulent design and circumvention hy which the petitioner was inveigled into the marriage, on the part of those whom he has implicated in the transaction. The proof on this point is not conclusive, although there is enough, in the facts detailed in regard to the procurement of the marriage license and the condition in which he was taken by Hearn and the father, to his house, for the purpose of marrying his daughter, to show an indecent zeal on their part to accomplish their object, and to induce a strong suspicion of the fraudulent design and combination alleged against them in the matter. But if we are forbidden, under all the facts proved, to pronounce the petitioner insane, in the language of the statute, then no circumstances of fraud or aggravation, trick, combination, or circumvention, however gross, indecent or disreputable may have been the means adopted to bring about the marriage, can give us jurisdiction to divorce the parties. As we have before observed, our jurisdiction in the premises is a special and limited one, and being confined to this single inquiry, we cannot enlarge it by reason of any hardship, injustice, fraud, imposition, or deception which may have been practised upon the party, so as to afford him the relief which he seeks, unless we could say he was insane; and then these circumstances would he entirely unnecessary. We are therefore constrained to refuse the application and to dismiss the petition.

Moore, McFee, and C. S. Layton, for the petitioner.

W. Saulsbury, for the respondent.  