That part of his Honor's charge to the jury which is excepted to by the defendants, is as follows: "This is a sad, sad case, as sad a case as ever I saw in the court house. The parties, petitioner and defendant, have been married forty-six years, and now the petitioner asks for a separation from the bed and board of her husband, on the ground of ill-treatment. It is for the jury to say whether her complaints are well founded. According as they shall determine, she is to return to her home, or to have that portion of her husband's *Page 143 estate allotted to her which the law allows in such cases." As no other part of the charge is set forth in the case, we must assume that his Honor, in the other parts of his charge to the jury, did not qualify, explain or substantially vary that portion which is recited. The question is, did his Honor err therein to the prejudice of the defendant? Issues of fact in writing had been submitted to the jury and much conflicting testimony had been given by the plaintiff and defendant, and it was upon the trial upon these issues that the charge above recited was given. Suppose these questions had been submitted to the jury as an issue, to wit: Are the complaints of the petitioner well founded? and the jury had responded in the affirmative. Could a Court upon that finding decree a divorce? Clearly not, because such an issue is wanting in legal accuracy and substance, and the finding must be equally defective. The petition contains many complaints, some irrelevant, some immaterial and some in aggravation only, and the very purpose of the issue was, from the mass to separate what was material and submit it to the distinct consideration of the jury, untainted by these extraneous matters which are too often lugged in before the jury and carry verdicts against right.
As the record before us shows, his Honor, inadvertently no doubt, submitted to the consideration of the jury, not the issues which alone were properly before it, but the "complaint" of the petitioner, which were not before the jury, but were contained in the pleadings; and the jury were directed not to respond to the issues, but to ascertain whether the "complaints of the petitioner were well founded." Possibly the jury was not misled, but where there is error in the charge of the Court, the conclusion of law is, that the jury were misled to the prejudice of the defendant. The law therefore applies the remedy by awarding a venire de novo. It was the duty of the Court to confine the jury to the issues by reciting the testimony and applying the law pertinent to them. But his Honor opened to the jury a much wider field of investigation, and in this there is error. As the case goes back, it is unnecessary to examine *Page 144 the other interesting questions presented by the exceptions. Before another trial, it would be well for the counsel of the plaintiff to consider whether the complaint will support a decree for divorce. The law does not encourage divorces, and before the Court will grant them, the petition and subsequent pleadings must conform to the rules prescribed with much particularity by statute. Battle's Revisal, Chap. 31.
PER CURIAM. Venire de novo.