Opinion of the Court-Belknap, J. from an exquisite and diseased sensibility of the mind." Adopting the principle that the element of danger to life, limb, or health, or the reasonable apprehension of such danger, must exist in order to constitute legal cruelty, can it be affirmed as matter of law that the plaintiff may not have established a cause of action under the complaint? If the conduct of which the defendant confesses to have been guilty, and which she admits drove the plaintiff from his home, could have resulted in injury to health, then the judgment must be allowed to stand. The result which the law is intended to prevent may be accomplished without any physical violence. The health of a sensitive wife may be as effectually destroyed by systematic abuse, and humiliating insults and annoyances, as by blows and batteries. It would be a reproach to the law, as is said by Mr. Bishop in his work on Marriage and Divorce, to say that a husband may not by personal violence ruin the health of his wife or kill her, and yet allow him to produce the same result in some other way. (Section 733.) Upon this subject the Pennsylvania court of common pleas employed the following language: "A husband may, by a course of humiliating insults and annoyances, practiced in the various forms which ingenious malice could readily devise, eventually destroy the life or health of his wife, although such conduct may be unaccompanied by violence, positive or threatened. Would the wife have no remedy in such circumstances, under our divorce laws, because actual or threatened personal violence formed no element in such cruelty? The answer to this question seems free from difficulty when the subject is considered with reference to the principles on which the divorce for cruelty is predicated. The courts intervene to dissolve the marriage bond under this head, for the conservation of the life or health of the wife, endangered by the treatment of the husband. The cruelty is judged from its effects; not solely from the means by which those effects are produced. To hold absolutely that, if a husband avoids positive or threatened personal violence, the wife has no legal protection against any VOL. XVIII-8 Opinion of the Court-Belknap, J. means short of these which he may resort to, and which may destroy her life or health, is to invite such a system of infliction by the indemnity given to the wrong-doer. The more rational application of the doctrine of cruelty is to consider a course of marital unkindness with reference to the effect it must necessarily produce on the life or health of the wife; and if it has been such as to affect or injure either, to regard it as true legal cruelty. This doctrine seems to have been the view of Sir H. Jenner Fust, in Dysart v. Dysart, where he deduces from what Sir William Scott ruled in Evans v. Evans, that if austerity of temper, petulance of manner, rudeness of language, a want of civil attention, occasional sallies of passion, do threaten bodily harm, they do amount to legal cruelty. This idea, expressed axiomatically, would be no less than the assertion of this principle that, whatever form marital ill-treatment assumes, if a continuity of it involves the life or health of the wife, it is legal cruelty." (Butler v. Butler, 1 Pars. (Pa.) Sel. Cas. 344.) We scarcely need the aid of judicial authority for the enforcement of the truth that there may be cruelty without personal violence, and that such cruelty, working upon the mind, may affect the health. Wretchedness of mind can hardly fail to have this result. In causes of divorce upon the ground of cruelty, wives appear as complainants more frequently than husbands. This arises from the fact that the husband is generally physically stronger than the wife, and less susceptible to the effects of ill-treatment than she. He too may, in fact, frequently restrain the wife's violence, by the exercise of marital power in the domestic forum, without the aid of courts. But the law does not encourage him to measure strength with her. "The fact that the husband can defend himself is the very grievance. It is because he may be tempted, in defending himself, to retaliate upon his wife that the court is bound to interfere, and to decree a judicial separation when such acts are proved. When a man marries an ill-tempered woman he must put up with her ill-humor; but the moment she lifts Opinion of the Court-Belknap, J. her hand against him the court must interfere, for, if it does not, how can it answer the husband if he should subsequently allege that he had been forced to use violence in self-defense." (Forth v. Forth, 36 Law J. 122, cited in Browning on M. and D. 111.) The statute contemplates cases in which the husband may be the complaining party, and in such cases expressly affords him the same relief which it extends to a complaining wife. Although he is generally physically stronger than she, he may be the weaker party. And cases may arise in which the wife may cause the husband to suffer as seriously, mentally and physically, as she would were he the aggressor. To reverse this judgment would be to say, as matter of law, that no such cases could exist. Under the allegations of the complaint a case of extreme cruelty could have been proven. Whether such a case was, in fact, proven, cannot be reviewed upon this appeal, because of appellant's failure to make the evidence a part of the record. The general principle of law is that when matter is necessary to be proven in order to support the judgment, it will be presumed to have been proven, in the absence of an affirmative showing to the contrary. And this principle is always applicable in an appellate court to causes presented, as this case has been, upon the judgment roll alone. Objection is made to the verification of the complaint. Each allegation of the complaint is made positively, and nothing is stated upon information or belief. The verification follows the form prescribed by statute, omitting the words "except as to those matters which are therein stated on his information or belief, and, as to those matters, he believes it to be true." "If a party, who in his answer has stated nothing on information and belief, thinks it advisable to swear that he believes such statement to be true, he doubtless has a right to do so; but if in such a case he confines himself to swearing that his answer is true to his knowledge, he not only complies with the requirements of the Code, but avoids what, to say the least of it, is a harmless absurdity." (Kinkaid v. Kipp, 1 Duer, 692.) Judgment affirmed. Opinion of the Court-Hawley, C. J. [No. 1081.] JOSEPH JONES, APPELLANT, v. JOHN Q. ADAMS, RESPONDENT. STATEMENT MUST BE AUTHENTICATED-A statement on motion for a new trial will not be considered on appeal unless it is authenticated in the mode prescribed by statute. APPEAL from the District Court of the Second Judicial District, Douglas County. N. Soderberg, for Appellant. A. C. Ellis, for Respondent. By the Court, HAWLEY C. J.: The errors assigned by appellant, upon which he relies for a reversal of the judgment and order of the court refusing a new trial, cannot be considered on this appeal, because there was no statement on motion for new trial. That which purports to be a statement has no certificate from the parties, or attorneys, "that the same has been agreed upon upon and is correct. It is not accompanied with the certificate of the judge "that the same has been allowed by him and is correct;" nor is there any certificate from the clerk that "no amendments have been filed." (Civ. Prac. Act, sec. 197; 1 Comp. Laws, 1258.) We have repeatedly declared that if the statement on motion for a new trial is not authenticated in the mode prescribed by the statute, the motion for new trial should be denied, and the appeal therefrom dismissed. (Lockwood v. Marsh, 3 Nev. 138; White v. White, 6 Nev. 20; Solomon v. Fuller, 13 Nev. 276; Hall v. Ogg, ante.) No error appears upon the judgment roll. Opinion of the Court-Leonard, J. [No. 1120.] JOSEPH TOGNINI ET AL., APPELLANTS, v. PETER N. HANSEN, RESPONDENT. INSTRUCTION UPON POINT NOT IN ISSUE-WHEN NEW TRIAL SHOULD BE GRANTED -The court below granted a new trial on the ground that the jury had been instructed to find upon a material fact concerning which no evidence was . introduced at the trial: Held, upon the review of the testimony, that the ruling of the district court was correct. APPEAL from the District Court of the Sixth Judicial District, Eureka County. The facts are stated in the opinion. F. W. Cole, for Appellants. Wren & Cheney and R. M. Beatty, for Respondent. By the Court, LEONARD, J.: This action was commenced May 27, 1881. In their complaint plaintiff's allege that on or about August 11, 1879, the defendant entered into a contract with the firms of Leonardi & Co. and Alberigi & Co., by which contract said firms agreed to manufacture charcoal on the Daney & Ellison ranch, in Eureka county, and deliver the same to defendant, and in consideration thereof defendant agreed to pay to said firms, on delivery of said charcoal, the sum of fourteen cents per bushel for each and every bushel so delivered; that on or about the twenty-sixth day of March, 1880, plaintiff's succeeded to the rights of said firms in said contract, by virtue of an equitable assignment of the same to plaintiffs, and that ever since the last-named date defendant has recognized plaintiffs as the successors in interest in and to said contract. Then follows an allegation that under and by virtue of said contract, since March 26, 1880, plaintiff's manufactured charcoal and delivered the same to defendant, to the amount of fifty thousand bushels, and that defendant has received the same; that there is now due and owing thereon from defendant to plaintiffs the sum of seven thousand dollars. |