
    Rebecca Rhame v. Bradley Rhame.
    This bill was filed by the wife against her husband . i, • v ' to obtain alimony.
    Alimony. when granted, B
    It stated that the complainant intermarried with the defendant, and at the time of her marriage was entitled to an estate in real and personal property worth from $8,000 to $10,000. That very soon after marriage the defendant began to treat her unkindly, and by a course of ill usage finally forced her to leave his house and take refuge among her friends, on whose charity and bounty she was now dependent; and she averred that she never behaved otherwise than as an affectionate wife. The bill further charged that her estate did not owe more than about $3,000; in order to meet which four negroes were sold, which brought about $3,000, as well as a tract of land which brought $3,200, which it seemed the defendant received. The defendant had also in his possession five negroes which were hers at the time of her marriage, and also furniture, &c. and had refused to allow her any thing for her support and maintenance, &c.
    
      1826.
    
      Columbia.
    
    The defendant, in his answer, denied the charge of un¡ún(i treatment, and alleged that the complainant left him without any cause, and that she was afflicted at the time of her marriage with a nauseous and unchaste ms-ease> jje a]s0 asSerted that her debts and the debts of the estate consumed the whole amount of the property got by her, and denied that he ever refused to maintain complainant if she would come and live with him.
    At the hearing the following evidence was introduced.
    
      Stephen Nettles, a witness for complainant, testified, that he knew the parties well, and went with the complainant at her request to the house of defendant in February 1821. Defendant not being at home, they remained there until next morning. Defendant returned and came to the chamber where witness lay, and after some time went out and locked the door. After some time the door was opened, and witness went down and conversed with defendant, and told him he came to see him on the disagreeable life he and his wife lived together, and asked him, if it were not possible they could make it up and live together again. Defendant said, that was his most distant thought. Witness then asked defendant, if he would not allow her some support. Defendant answered, he would not allow her a four-pence. Witness and defendant conversed- with complainant. The defendant said, if she came to live with him, he would build her a house in one corner of his field, for she should not live in the house with him. Complainant said, she would not be stuck off in a corner of his field. Defendant purposed to make a bill of divorce between them, which she said she would agree to, if he would return her property to her. He said he would not give her a dollar. She asked then for a bed and table spoons which he got by her, which he refused. One of her objects in going was to get some of the furniture. But she said if defendant behaved well to her she would remain. Defendant treated her with contempt, and charged her with living in debauchery in bad houses. She charged him with irregular and vicious conduct. She returned with witness. It was also stated that there was a verdict at law by B. Rhame.
    
    On the part of the defendant the following evidence was introduced. Thomas Burbage testified, that he went with the defendant to see his wife to endeavour to effect a reconciliation, and Mr Rhame asked her what she had left him for. She answered for no other reason than she did not wish to take medicine from Dr Boyd, on that side of the river. He asked her, whether he had not rendered her every assistance in his power, and offered to afford her any physician she pleased, and if he had ever used her ill, to state it and let it be known. She answered no, he had not used her ill. He then said, why do you report that I have used you ill, when you know I attended you and treated you kindly while you were ill. She said, his children had used her ill and were abusive in his absence. He wished her to go back and take the keys and her place as she ought to do. She replied, she would not. The witness further testified, that Mrs Rhame was regarded as a woman of loose morals, living at the 17 mile house on the Charleston road, in that manner, to the best of his knowledge and belief. Mrs Rhame said she went up by advice to her husband’s, to provoke him to put her away, and she said she would soon give him provocation to do so. Witness once asked her, why she married Mr Rhame in such a situation as she was in. She answered that she thought she was well, but was deceived. Mrs Rhame declared that Mr Rhame had not given her the disease. The witness lived 50 miles from defendant, and could not give any account of his treatment to Mrs Rhame. Witness thought defendant acquired by marriage with the complainant seven slaves, household furniture, a small stock, and two tracts of land. Her estate was much involved. Four of the neg-roes Were sold in a short time, to pay one of the debts contracted by her first husband. Mr Rhame apPeare(i t° be in earnest (and witness thought so when he went to see her) to bring about a reconciliation.
    
      .Levy F. Rhame, a nephew of the defendant, testified that he was present when Mrs Rhame left her husband’s house the first time she went away. His uncle the defendant sent for him. Defendant persuaded her not to go away. She said she would go, if she had to walk. She took a bridle and had a horse got. His uncle sent for him to witness the separation, and to notice the parting. His uncle heard from the negroes she intended to go. He did not treat her unkindly, but seemed moping and distressed. Witness was surprised when he first heard there was to be a separation. The defendant had from fifteen to twenty slaves, and a good piece of land. The plantation was worth about $3,000. Witness thought Mrs Rhame had lands which his uncle sold for $3,000. Some of her negroes were also sold. His uncle was afraid she would clandestinely take off some of the slaves she had brought to him in marriage, which were about five in number — one old and worthless. Witness informed the people that she was going away. It was reported that she was diseased. She professed to be of the Baptist Church; not turned out as far as he knew, as she ought to have been.
    
      Fidale, witness for defendant, testified that Mrs Rhame came to his house (near Mr Rhame’s) with Dehay. She said her object in going to her husband’s, was to provoke him to use her ill, and get him to drive her off; which she was advised to do by her lawyer. The suit was brought soon after. Her next friend in the suit lived near Goose creek bridge; and she keeps a house in the neighbourhood. Mr Rhame is a peaceable, good and orderly man.
    
      Mrs Clarke, witness for complainant, testified that she knew Mr Rhame, having lived in his family in his second wife’s time. He was not a faithful husband. She had seen him once commit indecency with a female.
    Mr Stigai's, for defendant, testified that Mrs Clarke was a woman of low character. It was the opinion of the neighbours she would say improper things and make mischief.
    Mr Geraud said that Mrs Clarke bore a bad character. She lived about the 2d mile house.
    Another witness testified that Mrs Clarke’s character was low. He had seen her sitting in the laps of the most vulgar men and servants. She was much in the kitchen. She was not then married. He did not know her character for truth or falsehood.
    This witness lived some time at Mr Rhamé1 s; he treated his wife well. His character was good and correct. He was a member of the Baptist Church and had a congregation.
    Dr Boyd testified that he had attended Mr Rhame’s family as its physician. That he was sent for to see Mrs Rhame the complainant. She had syphilis, which she ascribed to her former husband. Mr Rhame was a good honest man of,pure character. She was married to Mr Rhame in July 1818. And it was supposed that the disease had broken out anew in the spring following. His visit was soon after. Mr Rhame was deeply uneasy and distressed. He never saw or knew of his treating her ill, or proposing to put her in an outhouse.
    De Saussuhe, Chancellor.
    The question for consideration is, whether Mrs Rhame is entitled to alimony, under the circumstances, in proof, before the Court 1 There are a few leading principles applicable to this subject, and which guide the Courts in forming their judgment. The first is, that to entitle a wife to relief, g|le must come ¡nto the Court with an irreproachable character for purity and correct conduct. The next is, that without any grave faults on her side the husband has t , , . . , r r used her with such brutality, that it is neither sate tor her person, nor tolerable to her feelings, to remain with her husband, and that he has really driven her off by such ill usage. Another question is, whether he is willing to take her back and treat her tenderly, as a husband ought to treat a wife. The cases of Jelineau, 2 Desaus. Rep. 45, Prather, 4 Desaus. Rep. 33, and De-val, 4 Desaus. Rep. 79, all illustrate the principles on which the Courts proceed. In the pase we are now considering, the circumstances are off a very unpleasant nature. Several witnesses speak disrespectfully of the character of the wife, yet no specific act of impropriety after the marriage and before the separation is established by proofs. There seems, notwithstanding, to have been a stain upon her at the time of the marriage. The witnesses do not speak out fully on a gross subject, but they speak sufficiently intelligibly to shew, that she was suffering under a disgusting and disgraceful disease at the time of her marriage. It was shocking to marry any man under such circumstances, and must necessarily have produced deep disgust and even horror in the mind of thé husband. It is true, there is no proof that this odious defilement of the person originated in a guilty commerce with others; and it may be, as was alleged, that it was an anterior stain contracted during her former marriage, without any fault on her part. But I repeat it, there was much blame to marry at all under such circumstances. When questioned why she married at such a period' — she said she thought she was cured; upon which point she ought to have been absolutely certain before she married. This converts what may have been merely her misfortune into a fault in relation to her husband. There is indeed no direct evidence of criminal conduct during her former marriage or during her widowhood.
    We come now to consider the conduct of her husband. There is no proof of personal ill usage by him to his wife, by blows or by actually turning her out of doors by force; and it seems, by the decided cases founded on principles and on the great reluctance of Courts of Justice to interfere between man and wife (except in extreme cases), that the wife is not justified in departing from her husband, nor in demanding alimony, without some proofs of such ill treatment. The Court, however, if satisfied of such continued ill conduct as deeply afflicts the feelings of the wife, will give her protection and relief on moderate proof of bodily injury, if the wife be entirely blameless. In the case before us, it appears that the husband did not treat his wife with delicacy or tenderness. He spoke disrespectfully to her; but he did not strike her, nor turn her out of doors. And his discontent at her unhappy disease, which was disgraceful if not criminal, must necessarily produce disgust and ill humour, and naturally account for his treatment of her not being as kind and respectful as it was desirable. To diminish the effect of his reasonable •disgust and ill humour, it was urged that he himself was criminal with others. One witness only, Mrs Clarke, testified to this; but she was so completely discredited and shewn to be so low and worthless, that I place no reliance on her testimony, especially as the correct conduct and moral character of Mr Rhame are established by reputable witnesses. There is also no evidence that he put her away by violence, blows, or any other outrageous means, or even menaces. She went away voluntarily, and though it was a mere affectation of reluctance on his part, and on the part of his. relation, to her going away, still it was a voluntary departure. For it is in evidence that her object was to provoke him to personal ill usage, to lay a foundation for a suit for alimony. Upon the whole I do not think a case has been made out to justify the Court to give the relief demanded; at least, not f r the present.
    There is another view of the case to be taken. She brought Mr Rhame land and slaves, part of which he has sold, and he is in possession of the remainder. She is now living an outcast, without the means of support, and exposed to the temptations and vices which may utterly destroy her. She does not ask a large provision out of his estate; but simply the enjoyment of the remnant of property which she carried to him. The husband has professed a disposition to take her back. This very disposition is a declaration that, though she may have been unfortunate and indiscreet or degraded, he does not believe her to be guilty; for no man of good feelings or purity could make such an offer to a guilty wife. But if he takes her back it must be with good faith, to receive her kindly and treat her as a man should the wife of his bosom, and he must give assurances of that to the Court. If he is not prepared to do this, he is bound by every tie, divine and human, to make a reasonable provision for her, so that she may live in comfort and in peace, unexposed to the temptations arising from distress or misery. It is therefore ordered and decreed, that the defendant do forthwith receive home the complainant, and treat her respectfully and kindly as the head of his family. Or if he is not disposed to do that, that he do make immediate provision for her comfortable subsistence; and that until this be regularly done, he pay her, quarterly, the sum of forty-five dollars.
    Both parties appealed from this decree. The complainant on the ground that the Chancellor ought to have allowed alimony; and the defendant on the ground that the bill ought to have been dismissed. •
    The Courts have jurisdic-alimony,
    Exercised of chanceryf Revolution ^1640^'
    Alimony in Ranted upon and grounds Engilnd.68
    Alimony is granted in case of danger to life, limb, or health.
    
    
      Preston, for complainant.
    
      S. D. Miller, for defendant.
   Cubia, per

Nott, J.

That the Courts of Equity in this state have jurisdiction of cases of alimony is settled by the long practice of the Court. Prather v. Prather, 4 Desaus. Rep. 33. From necessity such diction must exist somewhere; and there is no tribunal in the state where it can be so well exercised as in that Court. It belongs to the Ecclesiastical Court in England; but we have no such Court in this state. And even in England, during the Revolution, when the Ecclesiastical Courts were shut up, the Courts of Equity took cognizance of such cases. 1 Madd. Cha. 386. In the exercise of this power, however, there is no little difficulty in determining the extent of the jurisdiction.

The first question presented in this case is, whether the complainant is entitled to alimony ?

In England, it appears that alimony is allowed only where a separation is decreed. And although our Courts of Equity have not the power to grant divorces, yét as the two subjects, “ divorce and alimony,” are inseparable companions in England, we must look to the causes of divorce, to ascertain the grounds on which alimony will be allowed. Sir William Scott (now Lord Stowell), in the case of Evans v. Evans, 1 Hagg. Rep. 39, which was an application for a divorce on the ground of cruelty, says, “ In the oldest cases of this sort which T have had an opportunity of looking into, I have observed that the danger of life, limb, or health is usually inserted as the ground on which the Court has proceeded to a separation. This doctrine has been repeatedly applied by the Court in the cases that have been cited. The Court has never been driven off this ground. What merely wounds the mental feelings is, in few cases, to be admitted, where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion (if they do not threaten bodily harm) do not amount to legal cruelty.”

What merely wounds the mental feelings is in few cases sufficient, where not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language or want of civil attentions, or sallies of passion, do not amount to legal cruelty.

The wife should not enter into a contest of retaliation, if she wishes the aid of the Court.

Words of menace importing actual danger will justify the interposition of the Court.

The same learned Judge, in the case of Oliver v. Oliver, 1 Hagg. Rep. 364, says, “words of menace, importing actual danger of bodily harm, will justify the interposition of the Court, as the law ought not to wait until the mischief is actually done. But the most innocent and deserving woman will sue in vain for its interference for words of mere insult, however galling; and still less will that interference be given, if the wife has taken upon herself to avenge her own wrongs of that kind, and to maintain a contest of retaliation.”

And it appears to me, that our Courts have hitherto acted upon the same principles. The case ofJelineauv. Je-lineau, 2 Desaus. Rep. 50, appears to be the first reported case which occurred in our Courts. The evidence in that case is not so fully reported as to give us a very distinct view of the facts. It appears however from the decree, that the husband had never used personal violence towards his wife, but he had threatened to do so; and had in other respects treated her in a cruel and brutal manner. And words of menace, importing actual danger of bodily harm, will justify the interposition of the Court. The cases of Prather v. Prather, 4 Desaus. Rep. 33, Duvall v. Duvall, 4 Desaus. Rep. 444, Taylor v. Taylor, 4 Desaus. Rep. 165, and Threewitz v. Threewitz, 4 De-saus. Rep. 569, all are cases of personal ill usage. The ease now before us, furnishes no such ground for the interposition of the Court. No personal violence has been used, no harsh language indeed, nor unkind treatment, which the complainant has not brought upon herself by her own improper conduct. This Court, therefore, concur with the Chancellor, that the complainant did not make out a case for alimony.

English courts*^will^al decree resti-S ae’sdte”0*

quaire> ¡f a MUforrestitu-entertained in state ?

Desertion or abandonment a good ground for alimony in state‘

This brings us' to. the question submitted by the defendant, to wit, whether the Court ought not then to have dismissed the bill.

In England actual desertion or abandonment of the wife by the husband (except in particular cases) will not be a ground for alimony, unless accompanied with cruelty, 1 Consist. Rep. 120. But the Court will grant a restitution of conjugal rights. That Court has the power, and will compel the husband to take the wife back and to treat her with kindness. But in those cases there is no such alternative provision as is made in this case; for that would leave it optional with the husband whether to perform the decree or not. The Court therefore decrees tion unconditionally, and will compel obedience to its decrees. If the Chancellor intended this as a decree of restitution. there ought to have been no alternative. But it does not profess to be such, and I do not know a power has ever been exercised by the Court of Equity in this state. I am disposed to think, however, that a bill for that purpose would not be entertained. I therefore presume that desertion or abandonment of the wife the husband would be a good ground for alimony, contrary to the English, rule. There must be some method ii-iiii ‘ by which the husband may be compelled to maintain his wife; and when restitution of conjugal rights cannot decreed, alimony must. And even in England where the abandonment is such that the party cannot have relief in the Ecclesiastical Court, the Court of Equity will interfere. And therefore in the case of Colmer v. Colmer et al. Moseley, 119, where a husband had left the kingdom and gone to the state of Maryland, having- first made a fraudulent assignment of all his real and perso-na-l estate in trust to pay his debts, the Court decreed the wife a maintenance out of it.

as*to rest¡tu°n tion will not on a bill for alimony.

that will not avail the complainant in this case; for it was proved and so expressly stated in the decree, that the departure of the wife was voluntary. But if the Court actually possessed the power to decree a restitution of conjugal rights it could not be exercised on this occasion. It must be on á bill brought expressly for that purpose. > Lord Stowell, in the case of Evans v. Evans, which was a case for a divorce, adverts to a case for restitution of marital rights, and says, “the monition is not only that he shall take her back, but that he shall treat her with conjugal kindness.” Yet in a subsequent sentence, a few lines below in the same case, he says, “ it is a mistake to say that in the present suit I can issue a monition to either party to return. This suit can lead to no such sentence.” And in the conclusion of his opinion (p. 129), after having made several pertinent observations upon the. reciprocal duties of husband and wife, he says, “ but in taking this review I rather digress from my province in giving advicé. My province is merely to give judgment, to pronounce upon what I take to be the result of the facts laid before me.” His Lordship therefore concluded with dismissing the parties. Lord Hardwicke, in the case of Head v. Head, 3 Atk. 547, has in his decree made terms somewhat similar to those made in the decree now under consideration. But that was on a bill brought by the wife for the arrears of an annuity which the husband agreed to pay during their separation. The husband agreed to receive her back again. The Lord Chancellor decreed that the annuity should cease upon his receiving her back; and maintaining and treating her as his wife j otherwise that it should continue. But that was merely requiring his promise to be performed with good faith, as a condition upon which he should be exempt from paying the annuity. If the defendant was now asking to be relieved from paying alimony upon receiving his wife back, whom he had driven from his house, such a condition might be proper. But the Chancellor has decreed, and this Court concur with him, that the complainant is not entitled to alimony 5 and that was the only question submitted to the Court. The complainant does not ask her husband to take her back. She does not appear to wish it. On the contrary, her object was to provoke him to turn her out of his house. But as she could not bring him up to such a pitch of excitement, she concluded to abandon it herself.

Jurisdiction g°”nting Ai-mo“y»and t0 such orders as are necessary ü0*of sud^á decree.

A1¡mony ig usually aiiow-ed till the husband will jjfc^his^wffe and treat her with conjugal affection.

I am of opinion, that the jurisdiction of the Court must be limited to the allowing of alimony; and to such orders as are necessarily incident to the effectual execution J of such a decree.

Alimony is usually allowed until the husband shall agree to take his wife back, and treat her with conjugal affection. Whenever the husband professes to have complied with those terms, and comes to be relieved „ ,. ,. , . from the payment oí alimony, the Court wifi grant the relief only upon his faithfully performing the condition, In those cases, and those only, can the Court impose the ' . . , terms made m this decree.

All that part of the decree, therefore, (after declaring that a case has not been made out to justify the Court to give the relief demanded) must be reversed. That part of the decree, which refuses the complainant the relief demanded, is affirmed. The bill is therefore dismissed.

Decree modified. 
      
       In this case it seemed the husband was in danger both of limb and health.
      
     