WALKER, V. C.

(Syllabus by the Court.)

Bill by Laura Bradbury against Frederic Bradbury for alimony. Decree for complainant.

Bird & Blackman, for complainant. John A. Montgomery, for defendant.

WALKER, V. C. This is a bill for maintenance under the statute, and alleges that the defendant abandoned the complainant without justifiable cause, and neglects and refuses to support her and their children. The answer, after denying the abandonment, charges that the complainant removed from their home, taking their two children with her, at the time when the defendant was sick in a hospital. The answer also charges the wife with neglect of her duties at home, and with spending her time gossiping with neighbors and receiving the attention of men; also with "running around" to saloons in the evening with men; that the defendant sent her word that he was willing to support his children, but would not do so while they remained with her. The answer does not charge her with committing adultery. Before this suit was brought, the wife complained of the defendant's nonsupport to the overseer of the poor, and the overseer thereupon caused the defendant to pay her $3 per week, which he paid for a while, and then ceased to pay. Afterwards the husband possessed himself of the children; one being sent to him by the mother, who was unable to support it, the other being procured by stealth. The proofs show that the husband treated his wife very badly, assaulting her many times, cursing and swearing at her, and calling her vile names. They also show that he was the deserter, and that she was not. The wife's conduct has not been exemplary, but, on the contrary, has been quite reprehensible, at least since the couple parted. Her husband's course of behavior toward her has doubtless been responsible for much of her conduct. The defendant neither pleads nor proves an excuse for desertion and non-support. All that the husband alleges against the wife did not afford him a justifiable cause for abandoning and refusing to support her.

In Boyce v. Boyce, 23 N. J. Eq. 337, it was held that a man is not justified in deserting his wife because she is extravagant or lazy, or swears, or uses coarse language, or is sickly, fretful, or of violent temper, or because she wreaks her temper or showers her profane language upon him and makes his life uncomfortable; that these are not crimes, but infirmities and defects, which, in consideration of law, a husband undertakes to put up with when he marries his wife for better or for worse. Nor is neglecting her duties, or spending most of her time gossiping with neighbors, or receiving attentions from men, or even going to saloons evenings with men any crime or legal excuse for a husband's abandonment and nonsupport of his wife. While associating with men, especially in saloons, may be an excuse for a husband separating himself from a wife guilty of such conduct, it is not a legal excuse for nonsupport of the wife by the husband while the marriage relation between them exists, or at least until cause for divorce against the wife is proved in an alimony or divorce suit. In those eases, as is well known, the husband is almost invariably compelled to support the wife pending the suit, even though her guilt be made quite apparent upon the proofs submitted on the preliminary application. It should be remarked that the proof concerning the complainant going to saloons with men showed that to have been her course of conduct after her husband had abandoned her, and it appeared that she was usually one of a party composed of several people. Still her conduct in this regard was unjustifiable and inexcusable, and guilt may lurk behind it. However, adultery is not charged, and whether or not the proof justifies its inference is not decided. The rule is well established that the court cannot notice matter, however clearly proved, of which there is no allegation in the pleadings. Vansciver v. Bryan, 13 N. J. Eq. 434, 436. The complainant was not called upon to meet a charge of adultery, but one of indiscreet and unwomanly conduct.

The law is, as I understand it, that, to justify an abandonment of a wife and also refusal to support her, the husband must show the wife to have been guilty of a matrimonial offense such as will entitle him to a divorce. I am free to say that the conduct of Mrs. Bradbury with other men, and particularly with a certain man, is at least suspicious, but no charge of adultery being pleaded, as already remarked, I am unwilling toconsider the question of guilt upon the testimony before me. In this connection I desire to say that the husband's conduct with a certain woman was shown not to have been above suspicion. However, his conduct does not afford an excuse for hers. In Tomkins v. Tomkins, cited by Vanarsdale, master, in his opinion in Miller v. Miller, 1 N. J. Eq. 380, 391, it was held that a husband has no right upon a charge of adultery against his wife to turn her out of doors, or by his cruelty drive her from his house destitute and unprovided for; that it may be a misfortune for a husband to marry a profligate and abandoned woman, but that his obligation to maintain her continues until the marriage bonds are legally dissolved, or she voluntarily separates herself from him. But now, adultery, if pleaded and proved is a good defense to a bill for maintenance without a divorce being procured. Maas v. Maas, 34 N. J. Eq. 113; Perkins v. Perkins, 59 N. J. Eq. 515, 526, 46 Atl. 173. Upon the proofs adduced I am asked to infer the adultery of the complainant. After the case is closed without suggestion of amendment relief cannot be afforded upon grounds not pleaded. Humphreys v. Eastlack, 63 N. J. Eq. 136, 146, 51 Atl. 775.

The result reached is that the wife is entitled to a decree, the terms of which will be settled on notice.