
    
      Isaac Clement vs. Olly Mattison.
    
    A Husband will be liable for necessaries furnished his wife, if he drive her away from his house, she not having been guilty of adultery.
    So also will he be liable, if he treat her with sevitia, although he may not have desired to expel her from his house.
    So also will he be liable, if he refuse to receive her on her return, although she may have departed without cause.
    Insanity from delirium tremens will avoid a contract of marriage; but whether the party was really insane or only intoxicated, is a question of fact for the jury to decide.
    
      Before Wardlaw, J, at Anderson, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “This was an action of assumpsit, brought by the father of Polly Clement against the defendant, charged as her husband, for four years’ boarding, clothing, and other necessaries furnished to her. The questions were,
    1. Was the defendant her husband 1
    
    
      2. Did the circumstances proved, authorize a third person, without the assent of the husband, to charge the husband for necessaries supplied to the wife ‘l
    
    As the appeal seems to be mainly from the verdict of the jury, and as there was a vast mass of testimony, to much of which I might not give the prominence which the defendant’s counsel may suppose it is entitled to, I send my notes of testimony taken on the trial, as my report of the facts, without any attempt to arrange or condense them. 
    
    
      I held that a wife, (not having been guilty of adultery) went abroad with a husband’s credit for necessaries,
    1. When he had treated her with sevitia, although he may not have desired to expel her from his house.
    2. When he had driven her away, intending to do so.
    3. When he had refused to receive her upon her return, although she may have departed without cause.
    I refused the motion for non-suit, and submitted the evidence on this head to the jury — directing them, if they found for the plaintiff, to consider the value of the wife’s services to him, in estimating the sum to be allowed for necessaries.
    I held that marriage, like other contracts, required the assent of capable parties; that the ceremony would be void if one of the parties was insane — that insanity from delirium tremens was not to be distinguished from other insanity, but was to be carefully distinguished from mere intoxication.
    I called attention to what Dr. Evins had said, that every thing here proved might have resulted from mere intoxication, and said that equivocal symptoms should be carefully inquired into-in this connexion examining the testimony, which went to shew that the defendant had quit drinking before the attack, and was not drinking during the continuance of the symptoms described.
    I adverted to the evidence and medical authorities read, which shewed that disease resulting from the cessation of stimulants, might be mild or aggravated, in any degree, from the ordinary nervousness of a drunkard after a debauch, to the wildest extravagance of a furious madman ; and pointed out the existence of delusion as a plain indication of insanity.
    I held that the acknowledgment of the wife, after manifest recovery, was not a confirmation of a void act, but strong evidence that the insanity had not previously existed, and may have been believed or supposed.
    I thought that all the evidence about Polly’s character was misjudged, and, not going farther, was irrelevant; but I heard all that was offered, no objection being made. I said that a marriage to a bad woman was valid, no less than one to a good woman — and that I could not see how the wife’s character was important to the question, unless there was such disparity or degradation as would furnish, of itself, evidence that the man must have been out of his senses.
    I most carefully abstained from the intimation of my own opinion, and think that neither party could have detected my leaning from any observations I made.
    The jury found for the plaintiff $300.” (
    The defendant appealed, and now renewed his motion for a non-suit, on the ground that
    The conduct of the defendant, to his alleged wife, was not such as authorized her to depart from his house, and carry with her his credit for necessaries.
    And failing in this motion, then he moved for a new trial, on the following grounds.
    1. Because the whole proof on the part of the plaintiff, as well as on the part of the defendant, shewed that the defendant was not in his proper mind when the marriage ceremony was performed.
    2. Because there was no proof that the marriage ever was consummated by the parties ; and the ceremony being in the usual form, the marriage was incomplete until consummated by cohabitation.
    3. Because the defendant being a laborer, his alleged wife’s services in the house of her father should have been considered a compensation in law for the necessaries furnished by hi«m
    4. Because his Honor erred in charging the jury that the symptoms proved to have existed, at the marriage, would all apply as well to a common state of drunkenness as to delirium tremens.
    5. Because his Honor charged that all those symptoms of delirium tremens may exist without producing a state of insanity, or a want of capacity to make a contract.
    6. Because his Honor charged that if the defendant acknowledged his alleged wife in a lucid interval, it affirmed the marriage and made it valid.
    
      7. Because his Honor charged that there was nothing in Polly’s character which would go to prove that the marriage took place in a state of derangement or insanity.
    8. Because the verdict of the jury was contrary to law and evidence.
    Perry, for the motion,
    
      Whitner, contra.
    
      
       This testimony is omitted, in conformity with the order of the Court of Appeals, which directs the Reporter to “ publish the report without the evidence.” R.
    
   Curia, fer

Wardlaw, J.

This court is satisfied with the refusal of the motion for non-suit, and with all the instructions given to the jury; remarking that the report of the instructions does not sustain some of the allegations in the grounds of appeal.

The case is a highly interesting one. It is all-important to the defendant that he ^hould'not be held bound by the marriage contract, if he has never entered into it. It is to the wife, and to society afi large, important that the contract, if once made, should be preserved indissoluble. The marriage contract having been in form properly made, the whole case turned upon the question of the defendant’s capacity. That question was fully argued, and fairly submitted to the jury. The reading of the testimony as a whole, may produce an impression favorable to the defendant’s motion ; but the court cannot know what portions of the testimony the jury believed. There were many witnesses, of various appearance, and no doubt of various character. Perhaps a narration of the truth as the jury saw it, would require parts of the testimony which impress the reader most to be expunged, and other parts, which seem of slight import, to be dwelt upon as most important. Another trial might increase the great number of witnesses which were examined, and might produce perjuries, (of which, on both sides, there have already been frequent and strong imputations,) but is not likely to add to the information necessary for attaining the truth of the question. This court must, then, in this case, (as it does in most other cases of verdicts found upon facts submitted to a jury,) confirm the determination of the tribunal to which it properly belongs to answer all questions of fact.

The motion is dismissed.

Richardson, O’Neall, Evans, Butler and Frost, , JJ. concurred.  