
    Jane Thompson, by next friend, vs. James Thompson.
    
      Jilimony.
    
    The amount to be allowed as alimony depends on the circumstances of each particular case.
    That the husband lives in adultery with another woman is a circumstance entitling the wife whom lie has abandoned to a large share of his income.
    The conjugal conduct of the parties, the extent of their respective incomes, the sources of these incomes, the condition in life of the wife, are all circumstances • to be considered.
    - BEFORE LARGAN OH., AT CHARLESTON,
    JANUARY, 1858.
    Dargan, Ch. This is a bill for alimony. There had formerly been a proceeding of the same character between these parties. The bill in that case was filed on the-of-A. D. 1848. It was heard at-Term of this Court, A. D. 1849. By a decree of this Court, rendered 28th April, 1849, the bill was dismissed. The defendant pleads in bar that action, and the decree thereon as to all defaults and short comings of his, in the marriage relations, which occurred previous to the rendition of that decree. The plea, as a matter of defence to a bill like this, is well conceived, but as will be seen hereafter, it will have no practical effect in this case.
    Again, after a loug estrangement and separation, which had continued for several years, on 31st March, 1852, the defendant returned to his wife and family, and cohabited with her for a time — not exceeding a week. He then suddenly withdrew himself from her society, and has continued to live separate from her ever since. This was an act of con-donation It operates as an amnesty in regard to all prior grievances, and no transactions occurring between the plaintiff and defendant prior to that time and bearing on the issues of this case, can be given in evidence: we can only enquire into facts posterior to the condonation.
    But in fact the plaintiff does not claim to be let into any such evidence. She has not attempted to adduce any such. She bases her claim to a decr.ee for alimony upon facts that have occurred subsequently to the 31st March, A. D. 1852, when the reunion and short lived reconciliation took place.
    The charges of the bill are that the defendant was of intemperate habits, and frequently beat and abused his wife, the complainant, stating a case amounting to smvitia, adulterous intercourse with another woman, and abandonment and desertion, without contributing any thing to her support and the support of his children, which she bore' to him, and this without justifiable cause.
    In regard to the first charge, there was not a tittle of proof to prove the smvitia; entirely unsupported by testimony, it falls to the ground; nothing more need to be said on that subject.
    As to the adultery, there was a great deal of testimony, and much of it was contradictory. The two principal witnesses brought forward to support this allegation, Emily Shepherd and Ann Gaskin, are women of such worthless and abandoned character, and such bad repute, as to render their testimony utterly unworthy of belief. I cannot, with safety, predicate my judgment upon anything they have said. Striking out their evidence upon the question of adultery, I do not perceive that the proof is sufficient to support the charge. Tfiough there are very strong grounds for the suspicion, I can not say that the whole evidence on both sides, taken together, is sufficient to prove, to my satisfaction, that the adulterous intercourse charged, existed, or exists between the defendant and the woman Mary Ellis. The evidence adduced on the part of the complainant, by itself would produce conviction; but when the counter testimony is thrown into the opposite scale, doubt is produced. I cannot rest my judgment upon a fact, the existence of which I doubt. Having thus disposed of the two first charges of the bill, I must now proceed to consider that which remains. I am to decide this claim for alimony upon the abandonment and desertion of the husband and the equity of the wife to a settlement of her own estate, .upon which' the marital rights have not yet attached. If the husband abandons the wife without justifiable cause, she is entitled to alimony. As to what constitutes the absence of justifiable cause, every case must, in a great degree, stand upon its own peculiar circumstances. It is easy to conceive a case in which a man of a just and honorable mind, and of warm and generous affections, might feel himself constrained to withdraw entirely from the society of his wife without its being such a case as would justify him in the eye of this Court, or exempt him from liability for alimony. . The marriage tie is of so indissoluble a nature, as not to be broken asunder for slight and trivial causes; for incompatibility of temper, uncongenial tastes and manners, or insulting language. To some minds these things are hard to bear, but parties placed in these unhappy circumstances, must submit and make the most of this condition. At least the law requires this sacrifice.
    
      The causes which have led to the separation of this unfortunate pair, I incline to think, have not been fully revealed in the evidence. There is a mystery about it — some secret causes of disgust and alienation which have not been made public. But so far as the circumstances have been, brought out, they leave the defendant without the shadow of justification. The history of the plaintiff, as brought to the view of the Court, does not exhibit her as a pattern of conjugal propriety — very far from it. But her life and manners present as high, a higher standard of propriety than his.
    The defendant, after several years of separation from his wife and family, without contributing anything to their support and maintenance, on the last day of March, 1852, suddenly and unexpectedly returned to the house on the corner of Laurens street, where the family were then residing, and where the plaintiff kept a boarding house. He came to stay, he said, and that he was going to act as a husband and father should act. There is no doubt that a full reconciliation then took place. But, strange to say, without any quarrel, or any complaint on his part, so far as is known, within a week he again abandoned his wife and family, and has lived apart from them ever since. During all this time he has withheld from them all pecuniary aid in the means of living, and for the education of the children, acting towards the latter in the most unnatural manner. He did allow them the use of the house on the corner of Laurens street. And here, I am constrained to say, that Mrs. Thompson, thus deserted, with a large family, consisting for the most part of girls, did, by extraordinary energy and prudence, support herself and her children in a creditable manner, give her daughters a genteel education, and so raised them, as to manners, character and accomplishments, that two of them have formed respectable matrimonial connections. For a person placed in her situation, this was doing much and reflects the highest credit upon her.
    I consider the overtures made by Thompson in May, 1852, about the time or shortly after the furniture was removed, as illusory. He wished her to go to him, and live with him in a house he had rented in Wolfe street. He did this under legal ádvice, and, doubtless, supposed'that in the case of a suit for alimony, it would have strong bearing in his favor. But why did he wish her to give up the rooms and comfortable house in Laurens street, where she had been so long living, and where she could carry on her business as the keeper of a boarding house, and go to the house in Wolfe street, where she could not have these advantages and comforts? The ostensible reason offered for the desired change is plausible. It was alleged to be that the latter house was nearer to the Rail Road shops, where he followed his business and trade. The insincerity of his assigning this reason is shown in the fact that very soon after the separation, one of his hands was severely burned, and in consequence maimed, and he was unable to work. During all his horrible sufferings from this burn, and when utterly helpless, he would not return to his family,and to his comfortable house in Lau-.rens street, but preferred to receive, rather, the charitable attentions of strangers; to this day he has not labored in the workshops of the Rail Road Company, and it is doubtful if he ever will again be able to work at his trade; yet, he assigns the distance of Laurens street from the workshops, and the punctuality, &c. in the hours of labor required there, as the reason of his unwillingness to reside with his wife in Lau-rens street. The plaintiff wisely refused to commit herself to that movement, for, as she said, if I go to live with him in Wolfe street, and he falls out with me, then I shall not have a place in which to lay my head. My mind is not without a suspicion that this overture was a ruse by which to get the family out.of the house in Laurens street.
    Under all the circumstances, my judgment is, that the plaintiff is entitled to a decree for alimony; what the amount shall be, I will hereafter declare.
    The next part of the case which I will consider, is the application for a settlement upon the wife of the property which she has recently acquired as heir at law, and distribu-tee of her sister, Mrs. Murray. This will depend upon principles somewhat different from that in which alimony is allowed. Asa matter of right, the wife is entitled to a settlement out of her own estate upon which the marital rights have not attached. She is entitled to this, even through the husband is a model of conjugal fidelity and devotion. The terms of the settlement depend on the circumstances of the case, and are in a great degree within the discretion of the Court. If the conduct of the husband is exemplary towards the wife, and their domestic relations agreeable, the Court will not cut him off from all participation in the wife’s fortune. But if he has deserted his wife, without justifiable cause, and without making any provision for her, justice demands that the wife should have her estate settled upon her, for her own use, and to his entire exclusion.
    In this case we have seen under what circumstances the defendant has separated himself from his wife. His circumstances are easy and competent; his rental is respectable. And so far from'making a provision for his deserted wife, he has cast her off, though the whole of his estate was derived from his marriage with her, or has sprung directly out of what she brought him in marriage. He had nothing, and all her real and personal estate, which she owned at the time of the marriage, has been so managed, that the title has vested in him absolutely, to her entire exclusion.
    On this state of facts, my judgment is, that all the property, real and personal, which the plaintiff has acquired from the estate of her deceased sister, Mrs. Murray, be settled on the said Mrs. Thompson, the plaintiff, for her own separate use and benefit during her life, and after her death, to her children who may be living at her death, the issue of deceased children taking in the division the deceased parent’s share.
    It is further ordered and decreed, that the Master enquire, and report upon a suitable person to be appointed as trustee, and that upon such appointment being made, the Rev. Cran-more Wallace, the receiver, do deliver up to said trustee the slaves which have come into • his possession as receiver, and account to the said Master for the rents and profits; and that Master Tupper do convey to the said trustee, hereafter to be appointed, as aforesaid, all the real estate to which the plaintiff, Mrs. Thompson, is entitled, from the estate of her deceased sister, Mrs. Murray, to be held by the said trustee, (as also the personalty,) for the uses and trusts declared in this decree; and that until such trustfee shall be appointed, the said receiver shall pay over to Mrs. Thompson the income derived from the'personal estate in his hands; and in like manner, Master Tupper do pay over to her the rents and profits derived from the real estate.
    It is further ordered and decreed, that by way of alimony, the defendant, the said James Thompson, do permit the plaintiff and her family to live in, and occupy, without rent, and free from hindrance and molestation, the house and lot on the corner of Laurens street, where she now resides, until the further order of this Court.
    It is further ordered and decreed, that the defendant pay the costs of this suit.
    The complainant appealed on the grounds:
    I. Because the Chancellor, having decided, that the complainant is entitled to alimony, it follows that she should have some provision for her support adequate to her necessities; whereas, it is submitted that the decree has fallen far short of what should be awarded to her. That the abandonment of complainant by the defendant has been aggravated by his lewd and indecent mode of life, and as the property has been acquired entirely through the wife and her means, it is submitted that, the whole, or at least the greater portion of the income snould be assigned to her.
    
      
      2. Because it is respectfully submitted that the Chancellor erred in his conclusion that the adulterous connection of the defendant has not been established by the testimony.
    
      Simons and Dunkin, for appellants.
    
      Macbeth and Buist, contra.
   The opinion of the Court was delivered by

Wardlaw, Ch.

This proceeding was instituted for the double purpose of obtaining a settlement on the wife of the property recently accruing to her by succession from her sister Elizabeth Murray, upon which the marital rights of the defendant have not attached by possession ; and of obtaining additional allowance to the wife from the husband’s income, by way of alimony, for the maintenance of herself and such of the children of the marriage as depend on her means for support. So far as the former purpose of settlement of the new acquisition of property by the wife, is involved in the pleadings, adequate relief is afforded by the decree, and no complaint is made to us by either party. As to alimony, the Chancellor pronounced his judgment that she was entitled to a decree for this object, principally on the ground of the husband’s desertion and abandonment, without contributing to the support of herself and children ; but limited the allowance for alimony to the rent of the Laurens street house, without report of a Master or any complete ascertainment of the extent of the husband’s income. The plaintiff, wife, appeals as to the extent of this allowance, complaining substantially that the decree makes to her a very inadequate allowance, when the extent of the husband’s income and the circumstances of aggravation in his conduct, particularly his adultery with Mary Ellis, are properly considered.

We have a general impression that the allowance is inadequate under the circumstances of the case, but we cannot venture to prescribe any additional fixed sum until we know more precisely the extent of the income of the husband and wife respectively; and we desire the aid of further evidence and a report from the Master on these particulars.

The amount of alimony depends largely on the extravagance of the husband’s misconduct. Unquestionably his misconduct in this case has been great and without any excuse apparent in the evidence. He has left his wife without pecuniary contribution on his part, to settle two of his daughters in respectable marriages, and to procure remunerative occupations for some of his sons. He vilipends in his answer his wife as rendering a separation from her necessary, by reason of her drunkenness, and offers no testimony in support of the’ vile charge. He refuses to recognize any claim of his daughters on him, whether presented by written request by one who was sick for flannel to protect her person, or by another to shake hands with him in the street.

But the great matter of aggravation is the alleged adultery of defendant with Mary Ellis. On this point, the Chancellor, while admitting strong grounds of suspicion, expresses doubt as to the sufficiency of the proof. For myself, I concur in his view, that the testimony of the two strumpets should be struck from the case, and treated as not offered or utterly inefficacious in leading to judgment, but we have very respectable opinions that the testimony of infamous witnesses if producing belief must be regarded. Granting, however, that the testimony of Shepherd and Gaskin (although primarily discredited by Ford, an equally infamous witness,) be erased from the record, enough remains to satisfy us that, as practical men, determining on the affairs of mankind, we must conclude the adultery. It is very distasteful to proceed through the details, but we must to some extent justify our conclusion.

The defendant in his answer does not deny'the adultery. His answer is casuistically evasive. He does deny that he lived in “open” adultery with Mary Ellis, and that “he recognized or treated ” her as his kept mistress,'or that there was “any familiarity or sociability” between them which would have rendered the visits to his separate establishment by his wife and children unseemly; but all this amounts merely to an expression of sentiment on his part that he was not so flaunting his adultery in the eyes of the community and his family as to make visits of respectable females to him compromise their character. In substance he denies notoriety of the illicit intercourse, and by negative pregnant, admits the existence of the intercourse. Again, he admits that an unmarried white female, still retained in his employment, was delivered on his premises of a bastard, (and another bastard seems to have been subsequently produced by her under similar circumstances,) and he says “ it is impossible for him to say, and he does not know who is the father of the said child.” It may well have been impossible for him to say who was the father of the child, if he suspected others to have intercourse with his paramour, but it was surely possible for him to say, if he had no illicit intercourse with Mary Ellis, that whoever might be, he was certainly not the father of her offspring. And why was she not produced bjr him to contradict the adultery, if her testimony could have been effective ?

The positive testimony satisfies us of the fact of adultery. Mrs. McLaughlin, an unimpeached witness, deposes as to facts inconsistent with any other conclusion. Besides that, the testimony of the defendant’s witnesses, especially of his nephew, Thomas Thompson, concerning instances of familiarity in the master’s lying on the bed of his servant and fondling her brats — indeed, without pursuing needlessly disgusting details, every portion of the testimony on the point, without a particle of contradiction, compels the conclusion that the defendant is living in degrading concubinage with his menial servant.

Now, we cannot punish him as an ecclesiastical court might for his sin, but we may properly consider his misconduct as entitling the wife and children, whom he has abandoned, to a large share of his income.

Probably, in expectation of our conclusion as to the fact of defendant’s adultery, it was urged that adultery on the part of a husband is much more venial than in the case of the wife, because the latter might impose on the couple spurious offspring for support, succession and inheritance, while the former could have no such consequence. The distinction in the cases of wife and husband is just and well recognized. It may be that occasional acts of adultery on the part of a husband, palliated by long and necessary absence from his wife, or other strong circumstances of temptation, might not entitle the wife to separation and alimony; but where a husband deserts and abandons his wife and lawful children, and lives in the same city in concubinage with a servant, begetting bastards on her body, he has little claim to the indulgence of any tribunal which proceeds for th,e enforcement of law and morals.

This whole matter as to the extent of alimony depends on the circumstances of each particular case ; and we have not the means of information in this cause to determine the precise amount which should be allowed. Counsel differ widely in their estimates of the incomes of husband and wife; and they differ as to the sources from which the estate of the husband has been derived, whether from his labor or accretion from his wife’s estate at the date of the contract of marriage. These particulars have necessary influence on the amount of alimony to be allowed. The doctrine on the subject is well summed up by Bishop in his treatise on Marriage and Divorce, section 612. The conjugal conduct of the parties, the extentmf their respective incomes, the sources of these incomes from husband or wife, the- condition in Ijfe of the innocent party without diminution from the degradation of the consort who has sinned — all these circumstances enter into the amount of just allowance for alimony. In some of these particulars we lack information. Besides it seems to us clear that the plaintiff, by way of what is called temporary alimony, or by any other name, is entitled to reimbursement for her expenses in a successful litigation.

It is ordered and decreed that it be referred to Master Tupv per to inquire and report as to the extent of the incomes respectively of the parties to'this cause, as to the sources of their derivation, and as to the expenses of the plaintiff in this litigatiop; and that he recommend to the Court what is a suitable allowance to the plaintiff for alimony under all the circumstances of the" case. Tn the meantime the plaintiff must be protected in the enjoyment of the use or rent of the Laurens street house, which has been allowed to her by the Chancellor.

It is further ordered that the circuit decree be reformed according to this opinion.

Johnston and Dunkin, CC., concurred.

Decree reformed.  