
    John D. Wright v. Margaret T. Wright.
    The statute defines the grounds of divorce; and whatever diversity of opinion mav he entertained as to the authority of a District Court to annul a marriage for causes arising antecedent toils celebration, other than that of incurable impotency, which is expressed in the statute, it will be conceded that for causes subsequently arising the power of the court is restricted to the grounds prescribed in the statute. (Nóte 1.)
    In a suit tor divorce a valid, .subsisting marriago is a necessary preliminary averment,and its proof at the trial is indispensable. (Note 2.)
    In a potnion for a divorce vague allegations in relation to continuous cruelties and outrages, without specifications pointing or at ieast approximating to the times, places, and circumstances of their occurrence, and allegations of general bad charactor, are impertinent, ami furnish no foundation for proof. ¡,
    
    The charge of poisoning the minds of her children and changing their natural feelings of love and affection into hatred and contempt, often breaking out into open aliase and violence, are much too vague to form any ground for the'admission of evidence or action of the court.
    Allegations which cannot be proved by admissible evidence incumber the record, and should be stricken out on special exception.
    The allegation that the defendant was guilty of the cold-blooded and brutal murder of the plaintiff's son is sufficient to sustain an action for divorce.
    To constitute an excess, cruelty, or outrage within the meaning of the statute, it is not necessary that an indignity or that violence be offered to the person of the wife; if the act bo an outrage upon her feelings, it is immaterial whether it he inflicted immediately upon herself or upon third persons, so that it be inconsistent with the matrimonial relation and its duties, obligations, and affections. (Note 3 )
    Words and acts which atfoct the menial feelings enter into the definition of legal cruelty.
    The commission of a felony or a capital crime is not of itself, under the statute, a cause of divorce, hut the murder of a child of ono of fcho conjugal partners by ihe other is sufficient, not because of the offense against society, but for the outrage upon the feelings of the parent and consort in matrimony. (Nole 4.)
    Proof of general reputation, cohabitation of parties, and general reception as man and wife is competent evidence of marriage in a suit for divorce.
    Proof Hint the plaintiff in a suit for divorce had been married previous to her marriage with the dclendant, and that that marriage was subsisting at the time, was held to be inadmissible under the allegation in the answer that the plamtiif and defendant were never legally married.
    Iii malting up a statement of facts, unimportant and irrelevant matters stated by ignorant witnesses, having no influence on the decision of the cause, should be omitted. And where the partios fail to agree, it is sufficient for the judge to certify “all the material facts proved;” but in case of a difference of opinion between the judge and either of the partios, as to whether certain evidence was.material or not. lie would doubtless, on motion or suggestion, insert it. although deemed by him lo bo immaterial.
    Allegations contained in the answer and not denied by replication or amendment of the petition aie not therelove admitted.
    The effect of renewed matrimonial cohabitation, on causes of divorce arising from cruelty or outrages, lias not been prescribed by statute, and we may with propriety recur to the doctrines of the canon law as received in the ecclesiastical courts in England.
    Reconciliation or condonation is not a bar to complaint as to past outrages, &«., unless there bo no subsequent ill treatment or no reasonable apprehension of further violence.
    Where husband and wife live together in the same house, there is a presumption of cohabitation. but the presumption may be repelled by circumstances.
    It is no objection to a verdict that it is contrary to the instructions of the court where the instructions are thomseivos erroneous.
    A fact in itself criminal may be pleaded and proved when it becomes a necessary fact to the evidence in a civil suit.
    Evidence which was admitted below without objection cannot be impugned in this court. Special verdict* should be upon issues made up under the direction of the court, or the verdict should be drawn up by a lawyer who can understand what issues are formed by the pleadings. &c.
    Whore in a suit for divorce, in which the marriage was denied,'the jury returned the following verdict: “ We, the jury, find by the evidence that the pUinüffhas well-grounded belief that the defendant is the murderer of Peter N. Hays, her son; and that she lives in continual fear of violence from the defendant, which we believe renders it insupportable to live with him any longer; but find no separate property:” Meld, That the verdict was sufficient to sustain a decree of divorce.
    Appall from Victoria. Suit by the appellee for a divorce. The petition alleged that the plaintiff intermarried with the defendant in the year 1S2S, and that ‘•lie is her present legal husband ; ” that the defendant had for a series of years np t.o the present, time been in the constant habit of using towards her in secret. I lie, most harsh, threatening, and abusive language, and laid frequently resorted to personal violence, ‘-tlie times and occasions of which cannot be specifically set forth; but that in September, 1846, being in great clanger from a violent attack of illness, the defendant most cruelly and unnaturally abused and neglected her, refusing the least assistance or medical aid, and by his conduct towards her caused the physician whom she called in to see her to leave tlie house and return no more, whereby the life of the petitioner was greatly endangered; ” that the conduct of the defendant liad for a long period of time manifested a total want of regard and affection for her; that he had been guilty of many crimes and misdemeanors, from larceny up to murder; “and that his life, marked by acts of studied cruelty and outrage for a series of years against the petitioner, was crowned in the month of September, 1847, as she believes and charges, by the cold-blooded and brutal murder of her only son; that his whole conduct to tlie present time has been such as to render her future cohabitation with him insupportable; that she cannot remain with him longer without incurring the same deep disgrace with himself; and from her knowledge of his sly and dangerous character, and the deep malice' which he bears in the depth of his heart against her, she fears that if she were to continue to live with him she would not only suffer cruel, personal violence when alone with him, but that lier life would be in continual clanger; that soon after she became satisfied that the defendant had assassinated lier son she left their common home and- instituted proceedings against him for a divorce; that during the pendency of the said proceedings the defendant, with the fraudulent design of gaining an advantage over her in the said suit, repeatedly visited her and pretended to desire a compromise of tlie same, and finally succeeded in persuading her by a false and hypocritical promise,” the terms of which are specially set forth, “induced, as she was, also by h&r desire to extend to her daughters the affectionate care and supervision of a mother, to return to his house, but she utterly refused to cohabit with him. She remained with him but a short period of time, viz, ten days, about tlie end of which, the time allowed the petitioner to file an amendment in tlie aforesaid proceeding for divorce having elapsed, the defendant-, having fraudulently obtained the advantage of delay, threw oil' tlie mask and refused to go to the Rio Grande, as lie had solemnly promised, or to give tlie petitioner the control of lier daughters and of the household, and returned to his accustomed course of treatment to tlie petitioner, viz, that of unnatural and fierce abuse, threats, and cruelties, so that she was compelled to escape in the night time.”
    Tlie appellant, who was defendant in- tlie court below, demurred to the petition ; denied tlie fact of intermarriage with the petitioner; admitted that by liis solicitation she returned to liis house, and remained with him about twenty days; alleged that she did not escape in the night time, but that she departed voluntarily, without bis knowledge, at about four o'clock in tlie evening; that lie again, bona fide and zealously, endeavored to persuade her to return to Ills bouse; but that slie refused to do so; denied that during her return and stay at his house or since he liad ever used any personal violence or abusive language towards the petitioner; but alleged that lie repeatedly urged lier to choose referees to compromise and settle the matters of difficulty between them; and that she wholly failed so to do. The defendant further averred that tlie petitioner, on her return to his house and cohabitation with him for the space of twenty days, liad, by condonation, given up every ground of divorce which , had existed and accrued before the date of lier return; and concluded by denying all tlie other several charges, statements, avermeuts, and allegations in the petition contained.
    Tlie verdict was expressed in the following terms :
    “We tlie jury find by the evidence that tlie plaintiff has well-grounded belief that tlie defendant is the murderer of Peter N. Hays, her son ; and that she lives in continual fear of violence from the defendant, which we believe renders it insupportable to live with liim any longer, but find no separate property.”
    Upon this verdict a divorce from the bonds of matrimony, and a division of the property were decreed.
    
      The defendant’s attorney asked the-court to charge the jury—
    1st. Because it is alleged in the defendant’s answer (and not denied in the pleadings or disproved by any testimony whatever) that defendant had at the time of marriage separate property, such allegation is to be taken for confessed, and the jury will find accordingly.
    7th. That the returning home of the petitioner at the solicitation of the defendant, and there cohabiting with him for ten or twenty days after, or did so after agreeing to the terms of a compromise, she cannot now be heard to complain of injuries which existed before that time.
    The intermediate instructions are omitted because they are not material in the view taken of the case by this court.
    The judge certified as follows: “The first and seventh instructions I decline to give, because I think they are not true. The others were given by the court in substance before they were asked.”
    The record did not disclose what instructions were given by the court, to which reference is made in the judge’s certificate.
    There having been no motion for a new trial, and the court having declined on that account to examine whether the testimony sustained the verdict, the testimony is omitted. There was a motion in arrest of judgment for the plaintiff, and for judgment for defendant, notwithstanding the verdict, one of the grounds of which was “because the verdict does not warrant any decree in favor of the.petitioner.”
    There was no bill of exceptions on the part of the defendant to the admission or rejection of evidence, nor were any exceptions on the part of the defendant noted in the statement of facts, i'he statement of facts was not signed by either of the parties or then- counsel, hut was authenticated by the certificate of the judge, as follows :
    “I certify the foregoing eleven pages,” &c., “to he a true statement of ail the material facts proved on the trial of this cause.”
    
      I. If. Mitchell, for appellant.
    I. The court below erred in admitting evidence of common rumor and general reputation, together with the fact that the parties lived together as man and wife, to establish the fact of their marriage, and in rejecting similar evidence on the part of the defendant to prove the marriage of the plaintiff and Peter N. Hays. The counsel for the defendant was so unwell when the cause was tried that lie was unable to prepare bills of exceptions to the various rulings of the court on the admission and rejection of evidence. The statement of facts ought to have disclosed the objection to evidence as an integral part of the history of the trial, but tisis it does not do, except in a few eases in favor of the appellee. The appellant contends, however, that, admitting for the sake of the argument that the evidence on this bead was received without objection,yet it is insufficient and incompetent to establish the fact of a valid marriage, which is necessaiy to bo established in a suit for divorce. (Wright v. Wriglit, Ms. Op., 1848; 5 Madd. R., 78; 1 Harr. Dig., 15GS; Smith v. Smith, 1 Tex. R.; 2 Mass. R., 154; 19 C. R., 197; Walk. Ch. R., 52; Shelford, 412 ; Story Bq., 23; Cooper, 5; Mitford, 37; 1 Chit., 224; Mims v. Milehell, 1 Tex. R.)
    II. The court below erred in refusing to give the first and seventh instructions asked by the appellant. It isbeiieved to be a sound rule of law and of practice whether in courts of merely law or of merely equity, that whore a matter is affirmatively alleged under ¡he sanction of an oath, and neither denied nor confessed, and avoided by the opposite party in pleading, nor by countervailing proof at the trial, such matter stands confessed upon the record, and does not need further proof to support it.
    The seventh instruction asked by the appellant should have been given. It is a well-established principle that a reconciliation removes all past causes of complaint.
    HI. The court erred in admitting to record the paper purporting to be a statement of facts. It does not pretend to be a statement of all the facts, but of such only as the judge considered material. It would be very unsafe, to say the least of it, to intrust the district judge with the power io discriminate between facts that are material and facts that are not. He might almost as well be allowed to decide the cause without appeal. The law lias provided no remedy in case a party and the judge should disagree as to the materiality of the fact proved, because it was not intended that ‘there should be any such discrimination-.
    IV. The court erred in substantially refusing to give the instructions aslced by the appellant. If the fourth, fifth, sixth, and eighth instructions had been “given in substance,” and understood in substance, could a jury, without a wanton and flagrant disregard of such charge of the court, have found that Mrs. Wright believed that the defendant was the murderer.of Peter N. Ilays, her son? But théy did so And, But they also further find, and almost in the language of the petition, only better stated in form as a pleading, “that she lives in continual fear of violence from the defendant.” If the jury had regarded the substance of the eighth instruction, could they have so found ? No, forsooth. Then it follows of necessity that the instructions were not “given in substance ” by the court, or the jury disregarded the instructions and charge of the court; in either event the judgment should be set aside.
    V. The court erred in overruling the demurrer to the petition. There was no legal marriage averred. The allegation is “that in the year 1S2S she intermarried with one John D. Wright, her present legal husband.” Here is no averment that the marriage was lawful, or whether by publication of banns ; or by whom made; by a qualified person or not; nor by license; by whom issued; by whom the rite was performed or celebrated; when- or where these things were done.
    The allegations of ill-treatment are equally vague and defective on the one baud, or frivolous and insufficient on the other. (Story Eq. PI., 25; Cooper Eq. Pi., 5; Mitíord Eq. PI., 37 ; 1 Chit., 224; Cooper, GS2.) The allegations of the petitioner’s knowledge of the defendant’s “sly, secret, and dangerous character” amounts to nothing. (Wright v. Wright, Ms. Op., 1848; 8 N. H. R., 1GG; l Miss. R., 288; 2 Johns. Ch. R., 225; 3 How. Miss. R., 751; 2 Kent, 126; 12 N. H. R., 80.) What specifications of ill-trcatmeut are there after her return home; after their reconciliation? None whatever. The usual general allegation of abusive language and cruelty. (1 Johns. Ch. R.,. 492 ; 7 Price, 577; 1 Bing. R., 349; 8 Id., 25G; Miss. R., 309.) _
    _ VI. The remaining assignments, from their similarity and intimate connection, may be considered together. There is no substantial difference between this case as now presented and the former ease of Wright v. Wright, decided at the December Term, 1848, between the same parties.
    _ I here appeal to this court whether between the former and this present petition there is any material difference except in the one point of the petitioner’s fears. At all events the district judge said at the trial that all the other grounds had been overruled by this court in the former case; and it is my understanding that they did overrule the whole petition in that case, deciding that most if not all the grounds for divorce there laid were insufficient in law to support a decree; and because there might have been just and valid grounds for divorce in fact existing, aud not proved or provable under the general allegations of the petition, the court allowed the making of amendments in order to develop tiie nature of those cruelties and indignities, &e., which had not been specifically set forth. But now that amendment has not been made by this new petition, still we And the same vagueness, generality, and uncertainty of pleading as before; even this key-stone, the petitioner’s fears, is set-out in the like uncertain and vague manner, the petitioner assuming' at once the legal conclusion that her belief and her fear are well grounded, instead of pleading such provable facts that, when proved by legal and competent testimony, the law could and ought to make that inference. If then it be true that this allegation is defective in form and in substance, seeing that the like objection holds with regard to it as to every other, and under the sanction of this court’s opinion in the former case, no testimony ought to have been admitted under it. The finding of tlie jury, having no legal base, must fall t.o the ground together with the District Court’s decree predicated upon that finding1. But suppose for an instant this allegation of fear to be well-made : was the testimony introduced in support of it competent, legal, and proper, and does it warrant the finding of the jury? What was that testimony giving it the greatest credence it claims for itself? It was simply (he community generally believed a common current rumor that Wright had killed Hays, and hence it was inferred that, ho was an assassin; and Mrs. Wright, taking- her cue therefrom, said that she was afraid of him ; and in support of the varaciousness of her say-so, did some tilings which'a fearful person might do; but this say-so and all her actings aud doings occurring1 since she abandoned his house. And this is the proof of facts which were to show that her conclusion of her fear being wtíli founded is correct. Plainly, if the court please, is it not superlatively preposterous to suppose it is admissible evidence in any case, or legal testimony anywhere ? (Hill v. Hill, 10 Ala. K., N. S.; Stokes v. Stokes, Miss. K., 288.)
    The motion in arrest of judgment should have been sustained. (11 Price, 235, 283 ; 5 Eng. Oh. K., 62.)
    /. W. Allan, for appellee.
    I. Out of the fourteen causes of error assigned we shall confine our reply to those points which, as we conceive, embrace all the material points in the ease. These are—
    1st. Arc the facts embraced in the special verdict well pleaded in the petition.
    2d. Are they proved by the testimony?
    3d. Are they sufficient in law to authorize the judgment of the court?
    II. Are the facts embraced in the special verdict well pleaded in the petition? The court lias so recently, in the opinion it gave in the former case between the present parties — in the cases of Sheffield v. Sheffield, and Lucas v. Lúeas — so thorough!jr examined the subject of pleading- in divorce cases that it is useless to discuss now this branch of the subject. Wo shall content ourselves with merely referring to those opinions and the cases there cited, and, as we conceive, we have Brought our case within the doctrines of the sufficiency of pleading there laid down. We would, however, specially refer the court to cases there cited, which refer to and sustain that familiar principle in pleading — that the verdict of the jury cures all' minor defects in pleading.
    III. Are the facts found by the jury proved by the testimony? That the proof is ample,'the court will be satisfied by a reference to the statement of facts.
    IY. Are the facts found by the jury and set forth in the special verdict sufficient in law to maintain the judgment of the court granting the divorce?
    Human happiness is the chief end of human existence. It is the will of God, as indicated by the mental, moral and physical constitution of man, and his position in the scale of creation, and, as we are plainly taught in Ills revealed word, it is the great object of all political aud social organizations. In all the various stations of social life there is not one t!ia4; does not profess .to be promotivo to this great end. Among them all the marriage relation occupies, by the common consent of mankind, and by, the human and Divine law, the post of honor, as being more promotive than any oilier of the highest happiness of the individual. Man, then, was not made that lie might marry, but made that lie might bo happy. Happiness is the great end, and marriage only the means. Listening to some of the modern rhodomontades upon the indissolubility of the marriage relation, one would suppose that the Bible, and .' the common sense of mankind had been all along wrong, and that man’s chief' end L to marry, and that all other things are to be sacrificed in order that this relation may be maintained indissoluble.
    
      The individual is under the highest possible moral obligation to pursue his substantial happiness. He lias no moral right to wantonly mar that happiness, whilst he cannot promote it at the saeriiiee of the right or happiness of others; yet he is bound to pursue it in despite of all hindrances when those hindrances are neither the result of his own culpability nor of such a char-' actor as to render obedience to them of higher moral obligation. From these principles, that as tlie marriage relation is only tlie means to attain the end, individual happiness, whenever it ceases to be prouiotive of that end and entails misery, and that without the fault of tlie suffering party, it should, in pure morality, be dissolved. I admit the obligations to societj', and am. willing to give them due force; but society becomes a tyrant, whoso exacting behests transcend the rules of all sound morality and the laws and instincts of nature itself, when it demands of tlie innocent tlie sacrifice of the great end of existence — all that makes existence desirable — for tlie contemptible purpose of preserving inviolate one of tlie hundred means for the accomplishment of that end, or for the yet more ignoble purpose of ministering to the prejudices of a mistaken zeal in the cause of philanthropy.
    Happiness may be destroyed in various ways — by infliction of bodily pain and by mental inflictions. Life may be made intolerable to the sensitive mind by tlie vile tongue of slander, by tlie thousand modes which tlie ingenuity of malice finds to manifest its fiendish nature and send its shafts to reach and fester among tlie weaknesses of onr nature. These are more numerous than tiic bodily “ ills,,which flesh is heir to.” Tlie sufferings of the mind are a thousand times more intolerable than the pains of tlie body. Witli’snch force did this truth strike the ancients that the most respectable sect of philosophers amongst, them — the Stoics — discarded bodily pains from among ihe ills of life, and made mental suffering the greatest ill.
    Tlie gentleman’s interpretation of the law would allow a divorce for a blow struck in a moment of passion,'whilst it would not see any cause for one in a studied and systematic course of mental inflictions, tlie very memory of which is calculated to “ make the heart a tomb.” He could find ample ground for a divorce in a scratch on the face, whilst lie would see none in the “mild-mannered” stop-father who could serve up a step-child for breakfast, another for dinner, and a third for supper, done up in the best stylo of French cookery, that lie may woo more voluptuously “ tired nature’s sweet restorer ” in the arms of tlie agonizing mother; and he would invoke this court to aid him in the unholy work of helping tlie monster to repose upon her bosom. If lie succeed, 1 must exclaim, “ Cruel law, cruel legislators, cruel judges! ” An ancient tyrant, as a refinement in cruelty, was accustomed to attach to the person of every malefactor a dead human body, that lie might ever have beneath his vision its gradual and loathsome decay, and have its fetid stanch forever in bis nostrils. More refined in cruelty than the ancients, the gentleman's interpretation would tie this loathsome moral carcass to the body of this innocent and feeble old woman, where she may forever sec tlie blood of her murdered son smeared all over it, and inhale tlie moral pollution as it arises rank and fetid from tlie corrupting mafes. Surely the court will not give such an interpretation to the law, unless forced to it by tlie plain and uncontrollable letter of the statute. I feel sure that tiie court will bring to the interpretation of the statute’s terms tlie ameliorating influence of the more modem aud more enlightened public opinion oil this subject. The ancient Homans admitted of divorce on too slight grounds. The abuse of this privilege disgusted tlie early Christians, who, as was natural, fell into tlie opposite error. The Catholic Church, which prevailed throughout. Europe during the middle and dark ages, forbid divorce; tint the Reformation originated a more sound philosophy oil this subject, which has gradually enlarged the grounds for divorce in general in exact ratio with the spread of a liberalized Christianity and a more thorough understanding of human lights. Let not, therefore, judicial decisions originating in a more. narrow and bigoted theology have more than their due share of influence in the interpretation of the Texas statute — the result of a different popular sentiment and a more enlightened Christianity.
    The language of the statute is broad enough to cover this ease, giving to each word its true natural signification. The'"language used is not tiie same used in the English books or the statutes of most of the Slates, but is much broader and more comprehensive. Then why give, it the same interpretation ? Why not enlarge the meaning in Che same, proportion that the terms are enlarged? To do otherwise.is surely illogical, lint even their opinions are not against ns in principle when thoroughly understood, when examined in reference to the facts of the case determined. A ease analogous to the present is nowhere decided. (2 Kent Comm., 125; 2 Mass. K., 150; 3 Mass. E., 321 : -1 Id., 587 ; 9 Bn,; 1 Hagg. Const. 1!., 65; 2. lhigg, lie. R., dñ,‘l; i £d., 773, also Wright v. Wright and Sheffield v. Sheffield, Mi. Op., 1848.)
   Hemphill, Ch. J.

Fourteen causes of error have been assigned, some of which will be examined, hut not in the order of their arrangement.

The fifth ground assigned is that the court erred in overruling the demurrer of tiie defendant.

The question presented is whether there is any fact well pleaded in the, petition which'would be sufficient in law to dissolve (die bonds of matrimony?

There- were some suggestions in the argument reiaiive to the extent of the power of the courts over matrimonial causes, which will not, in this case, require any particular examination. The statute defines tiie grounds of divorce; and whatever diversity of opinion may be entertained-as to tiie authority of a District Court to annul a marriage for causes arising antecedent to its celebration other than tiiat of incurable impotency, which is expressed in (lie statute, it will be conceded that for causes subsequently arising the power of the court is restricted to tiie grounds prescribed in the statute.

With lilis view of our authority we will proceed to examine' tiie legal sufii-ciehcy of the petition. The intermarriage of tiie plaintiff and defendant ami its continuance to the present time are alleged. These are essential preliminary averments, and their proof at the triafis indispensable. Without a valid marriage there can be no violation of its rights or obligations. There can bo no cruelly between man and wife unless they legally occupy that relation to each other. (Shelford, 368, 464; Paynter, 187; 4 Eccl. R., 549.)

It cannot be seriously contended that tiie facts alleged in the petition would not, if proved, constitute good grounds of divorce.

The narrative, it is true, is highly inflamed, and there are vague allegations in relation to continuous cruelties and outrages, without specifications pointing or at least approximating to the time, place, and circumstances of their occurrence, and also in relation to general bad character, which in a legal sense are iinperrinenl, and furnish no foundation for proof. But specific outrages are averred. The plaintiff is charged with cruel neglect and refusal of medical aid in a violent attack of illness, and with causing- by his conduct the physician whom she had called in to see her to leave the house and return no more, to .the great danger of the life of tiie petitioner.

The charge of poisoning the minds of her children and changing their natural feelings of love and affection into hatred and contempt, often breaking out into open abuse and violence, are much too vague to form any ground for the admission of evidence or action of the court. Allegations which cannot be proved by admissible evidence encumber the record, aiid should bo stricken out on special exception. (Slielford, 401, 509.)

Cut without further comment on other charges of the petition, the allegation that the defendant was guilty of tlie cold-blooded and brutal murder of the plaintiff’s son would be sufficient to sustain the action.

The matrimonial connection, although it may have originally been founded in love, and cemented by tlie most tender and delicate friendship and afreet ion, would, by this shocking crime of tlie husband, be instantly converted into a yoke of unmitigated misery and wretchedness.

The love of the mother for her offspring is among the strongest of her affections, and was implanted by nature in her heart for tlie most wise and salutary purposes; and cruelties towards her children create as much distress anil awaken as deep an anguish as outrages inflicted upon herself. The. hnsbaml as the head of tlie family, is invested' witii all tlie powers necessary to iLs proper control. lie stands in some degree in loco parentis, and must, of necessity, exercise authority as such. But lie has no legal right or power to treat, ti) > chi' Iren of ills wife by a former-or even the existing marriage with barbarous iuiiumanity aud cruelty; much less can he in the malignity of his wickedness deprive them of life.

The mother, if her child bo attacked, is (in its necessary defense) perfectly justifiable in taking away the life of the assailant. She may treat an assault upon her child as an attack upon herself; aud the murder of her offspring mist consequently be one of the most enormous outrages that could be perpetrated against the mother.

The statute declares that tlie marriage, may be dissolved if the husband or wife be, guilty of such excesses, cruel treatment, or outrages towards tlie other as to render (heir living together insupportable. To constitute an excess, cruelty, or outrage within the meaning of (lie statute, it is not necessary that an indignity or that violence he offered to tlie person of tlie wife. If the act be an outrage upon her feelings, it is immaterial whether it be inflicted immediately upon herself or upon third persons, so that, it be inconsistent with tlie matrimonial relation and its duties, obligations, and affections. In Popkin v. Popkin, (3 Eecl. R., 323,) it is said that an attempt by a husband to debauch women servants is a strong act of cruelty, not. perhaps alone sufficient to divorce, hut which might weigh, in conjunction with others, as an act of considerable indignity and outrage to the wife’s feelings.

If the mere attempt of a husband to debauch a nursery maid be cruelty to the wife as affecting her mental feelings, can the murder of her sou he regarded as less than a shocking outrage? Can she look witii composure upon'a husband dripping with tlie blood of her offspring, and yet suffer agony from liis attempts upon the virtue of her servants? The supposition is preposterous. Tlie assassination of a child is cruelty to tlie mother in its most aggravated horrors.

It must be acknowledged that there is extreme difficulty in defining or describing legal cruelly. In Evans v. Evans. (4 Eccl. R., 310.) the task of laying down á direct definition was declined. It was said that the causes must be most grave and weighty, and stieii as show an absolute impossibility that the duties of life can be discharged, for the duties of self-preservation must take place before the duties of marriage. Wliat merely wounds the mental feelings is in few eases to be admitted where they are not accompanied with bodily injury, actual or menaced. In Westmeath v. Westmeath. (4 Eccl. R., 263,) it is said that an apprehension of danger to life, limb, or health is the ordinary criterion of legal cruelty. (See Harris v. Harris, 1 Eccl. R., 203; Waring v. Waring, 1 Eccl. R., 211; 3 Eccl. R., 331.)

But in Durant v. Durant, (3 Eccl. R., 327.) a charge by the husband against tlie wife of criminality with her children’s tutor was treated as a gross cruelty, in comparison with which an act of personal violence would have been trivial and pardonable. And in Bray v. Bray, (3 Eccl. R., 70,) an accusation by a husband against his wife of an incestuous connection with her uncle, was held to be a cruelly than which none could be considered more grievous, except, perhaps, great personal violence.

•From these cases it« appears that words ami acts which affect Ihe menta feelings enter into the. definition of legal cruelty, ami I hat acts endangering' or menacing life, limb, and health, are not its only ingredients.

Tlie commission of a felony or capital crime is not of itself under the stature a cause of divorce. But tiic murder of a child of one of Ihe conjugal partners by the other is sufficient; not because of the offense against society, but for the outrage upon the feelings of the. parem and consort in matrimony.

The facts alleged in (he pleadings, independent of the irrelevant matter, which may he treated as surplusage., are sufficient in law to entitle the plain-till' to a divorce; and there was no error in overruling the demurrer of l he defendant.

Nor was there error in permitting at the trial tlie marriage, to be. proved by common repute, and by the cohabitation of the parties. Tlie marriage was fully established by such evidence, and tlie fact of its celebration was further proved by the witness Do Leon, who testified that he acted as Padrino, and brought the parties to the altar, when' they were, married and received the sacrament of marriage in the chapel in Victoria. This evidence was sufficient to establish the marriage in fact; but this is not essential in suits for divorce. Proof of general reputation, cohabitation of parties, and general reception as man and wife'is competent evidence of marriage in suits of that character.

FTor was Lhere any error in rejecting or disregarding evidence of the subsistence of a former marriage between the plaintiff and the father of her son, Peter X. Ilays. The fact of a previous marriage had not been pleaded by the defendant, and there was no averment in his answer under which any such testimony was admissible.

The rules in relation to the certainty of pleading in matrimonial as well as othercaseshavebe.cn too frequently discussed and determined by this court to require further observation. Tlie pleadings must slate lliefacts'upoii which the [SO] plaintiff founds his demand for relief, and the defendant his ground of defense. No more substantial ground could be urged by (lie defendant than the fact of a prior marriage; and if intended lo be proved it should have been epecilically averred. (Wright v. Wright, 3 Tex. R.; Guess v. Lubbock, and Wells v. Fairbank, 5 Tex. R.)

The third ground — that the court erred in admitting to record the writing purporting to be a statement of facts — will require but a brief comment. 'Tlie judge certifies it to be a true statement of all the material facts proved at tlie trial of tlie canse. The fifteenth rule for the government of District Courts, adopted April, 18-17, requires tlie statement to contain all tlie essential facts introduced in evidence, collected from tlie depor-il ions used and the oral testimony of witnesses. Tlie certificate proves that the judge lias complied with the rule. Unimportant and irrelevant matter, stated by ignorant witnesses, having no influence on the decision of the cause, should not encumber tlie statement prepared for tlie revising court. The statement of tlie judge is formed from those furnished by the parlies respectively and from his own knowledge; and it is not to be presumed that any of the material facts would be omitted. But should that, in the opinion of either party, be Ihe ease, they would doubtless, on motion or suggestion, be inserted, although deemed by the judge immaterial. 'Títere is no evidence on tlie record that áiiy such suggestion or objection was made.

The second ground of error is tlie refusal of the judge to instruct or charge the jury as requested in the first and seventh charges asked by the defendant’s counsel at the trial.

The latter instruction only requires any notice; and that, in substance is, that the returning homo of petitioner Sit tfio solicitation of tlie defendant., and tlie re cohabiting with him, for ten or twenty days, or did so afler agreeing to tlie terms'of a compromise, site cannot be heard now to complain of injuries which existed before that time.

The refusal of the judge was placed on tlie ground that the charge was not true; and the refusal was proper if, in liis opinion, the instruction was inapplicable to the facts adduced in evidence. But admitting that the facts were correctly stated, yet the proposition is not sustained by law.

In the 12th section of the act concerning divorce and alimony, it is declared that in a suit for divorce on the ground of adultery, if the complainant shall have admitted the defendant into conjugal society or embrace afler he or she knew the criminal fact, it shall be a good defense and perpetual bar against said suit. This is on the principle that the aggrieved party has forgiven the offense, and can never after complain. But tlii's effect of reconciliation has not been expressly extended to other causes of divorce than that of adultery; and it might be contended that the express declaration that one cause of divorce shall be barred by renewed conjugal embraces necessarily excludes other causes from the operation of the rule, on the familiar maxim of construction that expressio unius exelusio alterius est.

However that may be, it is clear that the effect of renewed matrimonial cohabitation on causes of divorce arising from cruelty or outrages has not been prescribed by statute,, and we may with propriety recur to the doctrines of the canon law as received in the ecclesiastical courts of England on the subject.

Reconciliation in that law is technically termed condonation, and it does not constitute, under all circumstances, a perpetual bar against complaint for antecedent offenses. Condonation is defined to be a conditional forgiveness that does not take away the right of complaint in case of continuation of the injury, which operates as a reviver of former wrongs. By the ecclesiastical law, fresh acts of adultery or fresh acts of cruelty will revive former acts of adultery or cruelty. In Westmeath v. Westmeath (4 Eccl. R., 200) it is said that “the force of condonation varies according to circumstances. The condonation by a husband of a wife’s adultery — still more repeated reconciliations after repeated adulteries — creates a bar of far greater effect than does a con-donation by a wife of repeated acts of cruelty committed by a husband. In the former case the husband shows himself not sufficiently sensible to his own dishonor and to his wife’s contamination, and reconciliations often repeated amount almost to a license to her future adultery, so as to form nearly an insuperable and immovable, bar; but the forbearance of the wife, and her repeated forgiveness of personal injury in hopes of softening the heart and temper of her husband, and under the feelings of a mother anxious to continue in the care and nurture of her children, are even praiseworthy, and create but a slight bar, removed by the reasonable apprehension of further violence.” (See also 3 Eccl. R., 390; Shelford, 436, 445.)

Condonation is held to he less strjmgent on the wife than on the husband. She is more subpotestate, more inops consillii. She may entertain more hopes of the recovery and reform of her husband, &c. (Shelford, 447; vide Ferrers v. Ferrers, 3 Eccl. R., 334.)

Were the facts truly stated in the instruction asked, yet the plaintiff would not be barred of complaint against injuries existing before the reconciliation unless there was no subsequent ill treatment by the husband or no “reasonable apprehension of future violence.”

The proposition then that condonation forms a conclusive and perpetual bar against prior cruelties and outrages is against Jaw; and there would have been no error had tlie refusal of the judge been placed on that ground.'

I do not deem it necessary to examine in detail whether the facts as presented in the instruction were sustained by the evidence or not. There was no proof of conjugal intercourse between the parties. Their living in the same house raises a presumption of matrimonial cohabitation, but lilis may be repelled by circumstances. In this ease a witness testifies that they had not slept together for years, and this raises a counter presumption that during tliis temporary reconciliation they were not occupants of the same bed. A return to live in the same house with a husband, but without connubial cohabitation, does not operate so complete a forgiveness as where there was a renewal of the conjugal society or embraces.' (3 Eccl. R., 342; 4 Id., 2005 Shelford, 251.)

The only further ground of error which will be examined relates to the verdict of the jury.

The objection that the verdict is contrary to the evidence should, to he available, have been made the ground of a motion for a new trial below. And this not having been done it cannot now be considered.

The first branch of the verdict is that the plaintiff has well-grounded belief that the defendant is the murderer of Peter 3ST. Ilays, her son; and, among other matters, it is urged that this finding' was against the instructions of (he court. The charge to the jury is not embodied in the record, and we cannot determine whether the verdict was inconsistent with the instructions, taken and considered together, or not. It is true that the verdict is not easily reconcilable with the instrueiion asked by the defendant and refused by the court, on the ground that it. had been previously given in substance to the effect that the fact of the defendant having killed the soil of tlie plaintiff formed 110 ground for divorce. But the instruction in itself was erroneous, and the verdict is not assailable on the ground that it was disregarded.

There are several anomalies in the proceedings in this cause, and one of the most singular is the exclusion bjr the court of evidence to prove that the defendant was the murderer of. Peter 1ST. Hays, and yet permitting testimony to he given of the belief of the- plaintiff and of the community that such was the fact. From the course of the testimony it seems to have been almost accidental that the actual death of Peter 1ST. Hays was proved at all.

To have admitted evidence that the defendant was guilty of any felonious acts, except such as under (he statute were outrages against the wife, would liave been improper ; and the error arose doubtless from not discriminating between felonies which are merely offenses against society and such as are also wrongs against the wife. A fact in itself criminal maybe pleaded and proved when it becomes a necessary fact to the evidence in a civil suit. (4 Eccl. R., 357.) The belief of the plaintiff in the criminality of the defendant must have his actual guilt for its basis. This she attempted to establish by direct and competent evidence, and it was not her fault that she was compelled to resort to the general belief of the community. But as this evidence was not objected to below, it cannot now be impugned.

The finding of the jury is certainly not free, when critically examined, from objection. They are required to pass on the material facts alleged in ttie petition.

This they can do by finding for the plaintiff generally if the facts are proved to their satisfaction; but if they attempt to find specially, it should he on issues made up under direction of the court, or the verdict should be drawn by some intelligent lawyer, who can understand what issues are formed by the pleadings, can separate one fact from another, and distinguish between facts established by the evidence and conclusions of law from those facts.

That the defendant had perpetrated an atrocious crime against society and an outrage upon his wife, and her belief in the fact having been established on the only evidence which was permitted to be introduced, and which was not objected to by the defendant, the jury expressed their finding of these facts, not separately and distinctly, as should have been the ease, but conjointly; for the only rational construction of their language is that the defendant was guilty of the alleged murder, and that this was the, belief of the plaintiff; and these facts being thus found by the jury, the verdict is sufficient to warrant a judgment for a divorce.

The second branch of the verdict is that the plaintiff was in continual fear of violence from the defendant.

, The plaintiff alleged in the petition her apprehensions that if she lived longer under the control of the defendant she would suffer personal violence, and that her life would be endangered. To render life insupportable is by law made the criterion of cruelty; and, in the language of Lord Stowell, wliat can have that effect more than continual terror and ihe constant -apprehension of bodily injury? (3 Eccl. R., 331.)

Note I.—Sharman v. Sharman, 18 T., 521.

Note 2.—And proof is necessary, although the marriage is expressly admitted by the answer. (Simons v. Simons, 13 T., 468.)

Note 3.—Nogees v. Nogees, 7 T., 538; Pinkard v. Pinkard, 14 T., 356; Shreck v. Shreck, 32 T., 578.

Note 4.—Sharman v. Sharman, 18 T., 521. Under the act of Slay, 1876, Laws 16 Legislature, p. 16, imprisonment in the State prison on conviction of felony is a ground for divorce.

That she lived in such apprehension was abundantly proved by evidence not objected to, and these fears were justified by the murder of her son and his treatment of her in sickness.

The facts upon which these fears were based should have been proved and found by the jury.. Put even if the latter part of the verdict be rejected, the facts first found are sufficient to warrant the judgment, and it is ordered to be affirmed.

Judgment affirmed.  