By the. Court. delivering the opinion.
The libel is put upon two grounds; cruel treatment, and incest.
In support of the last ground, no proof whatever, was offered.
The verdict was for the plaintiff, granting a total divorce, and disposing of the whole of the defendant’s property, which was quite large.
The motion for anew trial was put on a number of grounds, and the judgment granting the motion, was itself put on all of those grounds.
The exception is to this judgmeut.
The judgment was right, if any of the grounds of the motion was good. The question, therefore is, were the grounds of the motion, or any of them, good ?
The first ground was, that the verdict was contrary to law and evidence; the second, that it was decidedly and strongly against the weight of the evidence. These two may be treated as but one.
*242There being no evidence, as to incest, the verdict may be considered as saying, that there was cruel treatment.
Does the evidence show, that there was cruel treatment? This then, is the question.
The evidence shows, that in 1828, the husband whipped the wife “ with a cowhide without any provocation, only that she had invited several ladies to help her quilt the next day.” The evidence shows, that the husband confessed, that, eighteen or twenty years before the time of the taking of the evidence, “ he kicked plaintiff on the jaw, and broke her jawbone.”
A witness testified; that “ at a church trial, some time in 1851 or 1852, when the dispute between plaintiff and defendant was investigated, defendant admitted before the church, that a short time before then, he had struck plaintiff, two or three licks with a negro whip, but he did not hurt her. He might have hurt her, if he had not been prevented. He complained of plaintiff’s tongue, and said, she had told false things on him, but did not specify what. . He said, he could not forgive her, or could not love her. From what witness understood, he wanted plaintiff to give a libel,” [lie-bill ?] “ and refused to live-with her unless she did. Plaintiff asked the church to forgive her, and begged defendant to forgive her, and let her live with him. The church expelled defendant.” “Plaintiff afterwards lived with defendant for some time.”
A winess says that he “ heard plaintiff talking to his, witness’s wife, after the church trial, and about a year before-the separation. She was asked in relation to a rumor, that defendant had beaten her cruelly. She said it was not true: that he had hit her two or three licks with a whip, but had not hurt her. She said, the reports in circulation in regard to-defendant’s cruel treatment, were false. She, plaintiff, has been to the house of defendant, and staid all night there,, since the suit was commenced.”
The evidence shows, at the instance of mutual friends of the parties, overtures of reconciliation and re-cohabitation, *243.were made by him to her, and that she, though seemingly inclined to accept them, had finally rejected them, being persuaded to do so, by one of the children, Wm. Buckholts, who, in his unfilial selfishness, “ insisted, that the property should be settled on the children then, before he would agree for his mother to return.”
The evidence shows, that there was a contract of separation, between the parties.
This is about the substance, of what the evidence shows. And is there in this any cruel treatment shown ?
The acts shown in this, which are susceptible of being denominated acts of cruel treatment, are three — the whipping with the cowhide, the kick <m the jaw, the licks with the negro whip.
The first of these acts, happened in 1828, twenty-seven years before the commencement of the suit, and twenty-two years before the existence of the lawmaking cruel treatment, a contingent ground of total divorce. Cobb Dig. 226.
[1.] This law is not retroactive. Therefore, it could impart no divorce-supporting qualities to the cowhiding act, which that act did not possess before ; and before, it possessed none, so far as a total divorce is concerned.
She continued to live with him after this act until 1852, and, while so living with him, she had by him a number of children. In 1852, (the time of the “church trial,”) she wished still to live with him; she “ begged” him, “ to let her live with him.” She even now, perhaps, would live with him, but for her son’s objection.
[2.] This was condonation of the cowhidiug. “ When one of the married parties, knows the other to have committed a breach of matrimonial duty, yet continues or renews the cohabitation, the law presumes the offence is condoned.” Dish. Mar.andDiv. sec’s. 357, 369.
This act of cowhiding could avail nothing, then, in making-out the charge of cruel treatment.
*244[3.] The same things may be said of the second act of cruelty — the kick on the jaw; and also, this in addition, that the evidence in support of that act consists, exclusively, in the confessions of the defendant. And the law is, that when the evidence consists exclusively in such confessions, a total divorce will not be granted. Bish. Mar. andDiv. sec’s 501,305.
There remains but the act of striking the licks -with the negro whip, in 1852.
1. This act depends for its proof, exclusively, onthewmfessions of the parties,
2. It may be doubted, whether it was an act of cruelty; she said, the licks did not “ hurt hershe said," the reports in circulation, in regard to defendant’s cruel treatment, were false.” .She lived with him for a year after the act, and “begged” him “to let her” continue to “live with him;’* which shows she had no fear of him. Aud may we not lay it down for law, that to make out a case of cruelty, “there must be either actual violence committed, attended with danger to life, limb or health, or there must be a reasonable apprehension of such violence. Bish. Mar. and Div. sec. 454, note 1.
3. There is enough in the evidence, to raise a suspicion, that she was not. blameless. He complained of her “ tongue,” “said, she had told false things on him, but did not specify what.” In her libel she charged him with incest; she offered no proof in support of the charge.
At the “ church trial,” she “ asked the church to forgive her, and begged defendant to forgive her and let her live with him.’ Bish. Mar. andDiv. sec. 491.
4. She condoned the act. She lived with him a year afterwards, She “ begged” h'im to let her live with him longer. It is probable, she would live with him now, if her son ■would consent to it. She has slept at his house, even since the separation. And the'condonation of this, the last act, prevented the revival of the two former acts, supposing that they were acts susceptible of revival.
*245Upon the whole, we think, that this third act was not sufficient to entitle the plaintiff to a total divorce.
The result must therefore, he, that, in our opinion, the verdict was contrary to the evidence; and consequently, that the two first grounds of the motion, were good. This makes it necessary, to affirm the judgment.
A word only, on some of the other grounds.
We cannot say, the we think the fourth ground good; or ¿he ninth. It is needless to express an opinion on the rest. Indeed, they, for the most part, are involved in the first two grounds, which have already been considered.
Judgment affirmed.