Civil Action for Divorce, tried before Schenck, J., at August Term, 1875, of Mecklenburg Superior Court. The complaint substantially alleged : That the plaintiff and defendant were residents of Meck-lenburg County. That they were legally married and lived together as man and wife until the 27th of July, 1873, when the- plaintiff quit ihe bed and board of the defendant.
Decided 1876-06-05
Bynum, J.
¶1
“ Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of the party injured, made as by law provided, in the’ following cases : 1. If either party shall separate from the other and live in adultery. 2. If the wife commits adultery. 3. If either party at the time of the marriage was and still is naturally impotent.” Bat. Rev., chap. 37, sec. 4.
¶2
The application here is for divorce from the bonds of matrimony. A separation is charged, but there is no allegation that the husband after separating from the wife
lived in adultery,
nor was any issue submitted to and found by the jury to that effect. By the plain words of the statute, therefore, the petitioner is not entitled to. a decree of divorce
a vinculo matrimonii
in this action. There is no prayer for
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a divorce
a mensa et thoro,
and for that reason, if for no other, a decree for separation from bed and board cannot be allowed.
Hansley
v.
Hansley,
10 Ired., 506. As from the facts stated in the complaint, it is more than probable that the defendant has lived in adultery since the separation, and that it could have been established had the proper allegation been made in the complaint, the action will be dismissed without prejudice.
