Buckholts vs. Buckholts.

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 on 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 law making 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 hin 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 cowhiding. "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." Bish. Mar. and Div. sec's. 357, 369.

This act of cowhiding could avail nothing, then, in making out the charge of cruel treatment.

Buckholts vs. Buckholts.

[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. and Div. 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, on the confessions of the parties.

2. It may be doubted, whether it was an act of cruelty; she said, the licks did not "hurt her;" she 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. And 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. and Div. sec. 491.

4. She condoned the act. She lived with him a year af terwards, She "begged" him 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.

Bush vs. Lindsey.

Upon the whole, we think, that this third act was not sufficient to entitle the plaintiff to a total divorce.

The result must therefore, be, 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; ar the 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.

JOHN DOE, ex dem., JOHN BUSH and ELIZA BUSH, plaintiffs in error, vs. RICHARD ROE, casual ejector, SHERWOOD C. LINDSEY, tenant in possession, defendants in error.

[1.] An exemplification of the proceedings of a Court of Ordinary, in appointing a guardian and ordering the sale of the ward's land, did not show upon its face any thing to give the Court jurisdiction, yet, Held that as the Court of Ordinary is a Court of general jurisdiction, it was to be presumed, that something existed by which the Court got jurisdiction, and, therefore, that the exemplification was admissible as evidence of such appointment and order. [2] A court house, with most of the records, was consumed by fire. The records left showed, among other things, an order authorizing S., as administrator of B., to sell a lot of land; the returns of S., as administrator of B.; and an order dismissing S. from the administration of the estate of B. Held, That these things were sufficient to prove S. to have been appointed the administrator of the estate of B.

Ejectment, from Muscogee county. Tried before Judge WORRILL, June Term, 1857.

This was an action of ejectment brought by the plaintiffs.

Buckholts vs. Buckholts.

[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, and Div. 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, on the confessions of the parties.

2. It may be doubted, whether it was an act of cruelty; she said, the licks did not " hurt her;" she 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. And 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, and Div. sec. 491.

4. She condoned the act. She lived with him a year afterwards, She "begged" him 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.

Bush vs. Lindsey.

Upon the whole, we think, that this third act was not suf ficient to entitle the plaintiff to a total divorce.

The result must therefore, be, 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; ar the 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.

JOHN DOE, ex dem., JOHN BUSH and ELIZA BUSH, plaintiffs in error, vs. RICHARD ROE, casual ejector, SHERWOOD C. LINDSEY, tenant in possession, defendants in error.

[1.] An exemplification of the proceedings of a Court of Ordinary, in appointing a guardian and ordering the sale of the ward's land, did not show upon its face any thing to give the Court jurisdiction, yet, Held that as the Court of Ordinary is a Court of general jurisdiction, it was to be presumed, that something existed by which the Court got jurisdiction, and, therefore, that the exemplification was admissible as evidence of such appointment and order. [2] A court house, with most of the records, was consumed by fire. The records left showed, among other things, an order authorizing S., as administrator of B., to sell a lot of land; the returns of S., as administrator of B.; and an order dismissing S. from the administration of the estate of B. Held, That these things were sufficient to prove S. to have been appointed the administrator of the estate of B.

Ejectment, from Muscogee county. Tried before Judge WORRILL, June Term, 1857.

This was an action of ejectment brought by the plaintiffs