Miles v. Miles

*358 Judgment was entered in the Supreme Court, June 1st 1874.

Per Curiam.

The record in this case is No. 65 of November Term 1869, in which the petition was filed and the subpoena issued. Another petition without number, marked “read, and subpoena awarded August 28th 1869,” appears among the papers, but appears not to have been docketed, and no subpoena was issued upon it. No. 65 of November Term is an original, and not an alias. It is evident, therefore, that the decree rests on the latter only. The grounds of divorce set forth are, such indignities to the person of Richard Miles as rendered his condition intolerable, and such conduct generally as rendered his life burdensome. Additionally, grossly immoral conduct, rendering the bringing up of the issue of the marriage properly impossible, is averred. None of these fall within the language and purpose of the Act of Assembly entitling the husband to a divorce a vinculo matrimonii. These Acts of 1854 and 1855 were considered in Gordon v. Gordon, 12 Wright 226 , and Jones v. Jones, 16 P. F. Smith 494, and according to the principles then ruled, this libel is fatally defective. There is another fatal defect. The Act of 1854, which gives the husband a divorce a vinculo, for cruel and barbarous treatment, construed in Gordon v. Gordon, provides expressly that the court shall, on granting the divorce, allow such support or alimony to the wife as her husband’s circumstances will admit of and the court shall decree just and proper. It nowhere appears in the decree or otherwise that the court even considered the question of alimony, or found that the husband’s circumstances did not admit of any support. On the subject of alimony the law makes this plain difference between a husband and a wife plaintiff; on the ground probably that the duty of maintenance once assumed by him is not to be released, and thrown upon the public, without a good reason. He may dissolve the tie which binds him to her alone, so far as it makes his condition intolerable and his life burdensome, but as the head of the family and the maker of its wealth, he is not to be relieved from a duty which humanity and the rights of society demand him to fulfil.

The decree of the court below is reversed and the costs ordered to be paid by Richard Miles.