provoked by the injudicious language or conduct of the wife. "That which is violent, if aggressive, may be justified or excused if defensive; and if the wife gave the first blow, if she was the prior laedens, though to return it may not be manly, the law will allow for human infirmity under such gross and scandalous indignity."1 This case is an illustration of very unhappy married life, with constant quarrellings and considerable mutual violence, where the Court declined to decree separation. There must, however, be some proportion between the provocation and the violence. Dr. Swabey says, in a leading case: "If, however, it should appear that even misconduct on the wife's part has produced a return from the husband wholly unjustified by the provocation, and quite out of proportion to the offence, it might still be the duty of the Court to interfere judicially, notwithstanding such, the wife's, positive misconduct.” 2 Cruelty is cumulative in character. It has been said that it must be sustained, and indicate a continued want of self-control, and must be referable to permanent causes so as to endanger the future safety of the wife's person or health.3 But a single act of violence may be so great as to sufficiently disclose a recklessness on the husband's part as to his wife's safety or health which will be a sufficient ground of decree.1 Threats. Hard words," it is said, "break no bones," and it will not be enough to prove the use of very violent and insulting language. Nor even if couched in the form of a threat to inflict serious bodily harm, if, in the view of the Court, the husband had no intention of carrying out his menace, and the wife knew as well as he did that it was brutum fulmen. The Court will distinguish between words 1 Per Sir W. Scott in Waring v. W., 1813, 2 Hagg. C.R., at p. 157. Ill.-Wife going out for day is taking with her the key of the winecellar. She refuses to give it to husband. In taking it from her by force she sustains slight injuries. Not cruelty (Oliver v. O., 1801, 1 Hagg. C.R., at p. 371). 2 Best v. B., 1823, 1 Add., at p. 423. 3 Plowden v. P., 1870, 23 L.T. 266; Power v. P., 1865, 4 S. and T. 173; Graham v. G., supra. 4 Holden v. H., 1810, 1 Hagg. C.R., at p. 458; Smallwood v. S., 1861, 2 S. and T. 397, case where one act held insufficient; Reeves v. R., 1862, 3 S. and T. 139; Popkin v. P., 1794, 1 Hagg. E.R., at p. 768, note; Geils v. G., 1848, 6 Notes of Cases, 134; Strain v. S., 1885, 13 R. 132. of idle abuse and words of menace indicating a malignant intent, such as might reasonably make the wife apprehensive as to her future safety.1 Ill.-Husband threatens to cut his wife's arm off and beat her brains out with it, and to pull her out of bed and kick her up and down the room. He once seized a red-hot poker and threatened to run her through with it. Held that cruelty was relevantly averred.2 Insults. Insulting language, though carried to great lengths, is not cruelty. But there are indignities so gross as to be far more painful than blows. There are many dicta to the effect that spitting in a wife's face is legal cruelty. It is not likely that separation would be pronounced on proof of a single act of this kind, taken by itself, but in conjunction with other acts it will weigh heavily with the Court in estimating whether the cohabitation has become unbearable.3 Ill. A husband anxious to disembarrass himself of his wife's company took her by the shoulders in a street, pushed her against a wall, and with the use of filthy language thrust his umbrella against her person. A man passing by took her for a prostitute and seized hold of her leg. Held cruelty.1 Habitual coldness and neglect does not amount to cruelty. Ill. A husband after four months of marriage ceases to speak to his wife, leaves her nearly all day, occupies a separate bedroom, and declares his determination to continue in this course. Held not cruelty.5 Ill. Husband treats wife with habitual neglect and aversion. Abstains from marital intercourse. She discovers that he is carrying on adulterous intercourse with a servant in the house. Not cruelty. Perhaps the most difficult class of cases is that in which the husband abstains from actual violence but exercises a course of studied and calculated tyranny. It is no ground for separation that the marriage is unhappy, that the temper and 4 Milner v. M., 1861, 4 S. and T. 1 D'Aguilar v. D'A., 1794,1 Hagg. E.R., at p. 775 ; Oliver v. O., 1801, 1 Hagg. C.R., at p. 364; Chessnutt v. C., 1854, 1 Spinks, at p. 198. 2 Hulme v. H., 1823, 2 Add. 27. 240. 5 Paterson v. P., 1850, 7 Bell's App. 337 (in C. of S. 11 D. 421). 6 Cousen v. C., 1864, 4 S. and T. 164. CRUELTY-COURSE OF TYRANNY. 61 tastes of the spouses are incompatible, or even that the husband is constantly in a state of degrading intoxication and in the habit of addressing his wife in terms of the grossest abuse. But habitual intoxication is material in considering if the wife's safety is endangered. And where there has been actual violence, it is no defence that it was committed in drunkenness. There is, however, a kind of case where something like a deliberate system of cruel tyranny is carried out with the intention of breaking the wife's spirit. Body and mind are inextricably bound up in our constitution, and mental distress is one of the commonest causes of bodily derangement. A wife's health may be slightly endangered by knocking her down; it may be shattered by years of misery and irritation. The Court will not grant decree because the marriage is so unhappy or the husband is so addicted to some vice that the wife's health is broken down by misery. But where a husband, on the ground that his wife had conspired to prove him guilty of a heartless breach of trust (which appeared to be an unwarrantable inference from a letter of hers), practised a system of tyranny to induce her to confess her sin, which she denied having committed, decree was given. The facts were these: The lady, who was over sixty, had been married twenty-seven years. To bring her to contrition she was entirely deposed from her natural position as mistress of the house. She was debarred the use of money. Every article of dress, every trifle which she' required, had to be put down on paper, and her husband provided it if he thought proper. At one time the doors were locked to keep her in; at another a man-servant was deputed to follow her; at another the husband insisted on accompanying her himself whenever she wanted to go out. He spoke to her in the language appropriate to a woman guilty of adultery. He took no meals with her, he occupied a separate bedroom, he passed no portion of the day, however small, in her society. Everybody she desired to see was forbidden the house. She was not allowed to post a letter 1 Chessnutt, Geils, cit.; Greenway v. G., 1848, 6 N. of C. 221. 2 M Gaan v. M'G., 1880, 8 R. 279. + Chessnutt, cit., where, however, it may be doubted if Dr. Lushington does not state the law too strongly. which he had not read. The care of the house was given to a woman who was told to take no orders from the wife. Her health was so broken that medical men said the result of continued cohabitation would probably be paralysis or madness. The full Divorce Court, affirming Lord Penzance, found this cruelty. And in a case where the harsh and irritating conduct of the husband seriously affected the wife's health, Butt, J., said: “Although I am not aware that there were any blows, still, if the conduct of the husband be such as to endanger the life or even the health of the wife, that is cruelty in every sense of the word, whether we talk of 'legal cruelty' or anything else."2 The case of Kelly was expressly followed very recently in the following state of facts. The husband occupied a separate room, professsed loathing for his wife, used violent language to her, and treated her with consistent neglect. He kept 3 a mistress during the whole period of the marriage. Medical evidence was given as to the effect of his treatment on the wife's health. The case was practically undefended, and this fact was referred to in a subsequent case as weakening its authority. The facts of Beauclerk's case were the following: The husband had at one time left his wife and eloped with a woman with whom he spent some months. He subsequently returned to cohabitation. During cohabitation his conduct was openly profligate, and he habitually told his wife of his amours. There was medical evidence that her distress at his profligacy led to great nervous exhaustion, long fainting fits, and weak irritable heart. Butt, J., held this did not amount to cruelty. The Court of Appeal did not decide this question, dismissing the suit on the ground of the wife's delay of twenty years in bringing the suit. Lord Justice Lindley said: "I will assume that there has been such misconduct on the part of the husband as to have injured his wife's health to his knowledge, and I will assume that, notwithstanding that knowledge, he continued such misconduct. If that was the true result of the evidence, I think it would follow that a case of cruelty had been made out." 1 Kelly v. K., 1870, L.R., 2 P. and D. 59. 2 Mytton v. M., 1886, 11 P.D., at p. 143. 3 Bethune v. B. [1891], P. 205. 4 Beauclerk v. B. [1891], P. 189. CRUELTY- -ATTEMPTED VIOLENCE. 63 And Lord Justice Lopes said he was not at all prepared to hold that the facts did not amount to legal cruelty. There appeared to be in this case some evidence of systematic intention on the part of the husband to injure the wife's health, or at least of reckless negligence about it, in narrating his profligate conduct to her after perceiving the injurious effect of these disclosures. But even if this be so, the case indicates a disposition on the part of the Court to extend the principle of the case of Kelly. It was suggested as a sound proposition in law that the Court would interfere in any case when a man with ingenuity makes his wife's life a burden to her, without causing her bodily pain or apprehension. This is inconsistent with the older decisions. E.g. Dr. Lushington says: "Mental anxiety, excitement, bodily illness, though occasioned to the wife by the conduct of the husband (and this was a case where a medical man said the wife's excitement bordered on insanity), does not constitute cruelty, except such conduct was accompanied with violence or threats of violence."1 The case of Kelly was one of almost diabolical cruelty, perpetrated by a man of whose amendment there was little hope, because he evidently believed he was acting from a sense of duty. At present there is no decision in Scotland which extends the law to the point indicated in Bethune and Beauclerk, and it may be doubted whether the rule will be so far relaxed.2 In a case where a servant in the house gave birth to a child of which the husband admitted the paternity, it was held that the wife was justified in nonadherence, the girl still remaining in the husband's house. But the ground of judgment, though not clearly stated in the report, seems to have been that adultery was proved, and not that the retaining of the girl was such an insult as to be legal cruelty. Attempted Violence.-Seeing that menaces, if serious, amount to cruelty, it follows that an attempt to commit an act of violence, though unsuccessful, may have the same weight. The object of interference being to protect the wife, the Court is not bound to withhold its aid till the wrong has actually been done. 1 Chessnutt, 1854, 1 Spinks, at p. 199. 2 See, however, Mackenzie v. M., 1892, 30 S.L.R. 276. 3 As to which, see Lessly v. Nairn, 1712, 4 Br. Supp. 880, and Cousen v. C., 1865, 4 S. and T. 164; Letham v. Proven, 1823, 2 S. 284. |