RAPE.

This is a ground of dissolution of marriage on petition by the wife, 20 & 21 Vict. c. 85, s. 27.

The legal definition of rape is now laid down to be "The carnal knowledge of a woman by force, against her will, or without her consent," Reg. v. Fletcher, 1 Bell, C. C. R. 63. Or, if the patient be under ten years of age, the will has nothing to do with it, 1 Hale, P. C. 628.

We do not deem it necessary to go into the particulars of the evidence necessary to support the charge, which will be found at full in Archbold's Criminal Practice, by Welsby, 584; Roscoe on Evidence in Criminal Cases, "Rape," 845.

SODOMY-BESTIALITY.

These are also grounds for dissolution, 20 & 21 Vict. c. 85, s. 27. See the evidence in Welsby's Archbold, 589; Roscoe Ev. Crim. Ca. 909.

It is a crime in a married woman who consents to her husband's commission of an unnatural offence with her, R. v. Jellyman, 8 C. & P. 604.

RESTITUTION OF CONJUGAL RIGHTS.

The fact that the marriage contract once entered into cannot be dissolved without the inter

vention of the Court, naturally gives power to the Court to enforce the carrying out of that contract so far as may be-that is by decreeing a return to cohabitation, for it cannot enforce a return to intercourse; although, in that case, if the party complained against should afterwards find that the consequences of human infirmity have ensued, he ought not to feel surprised, Forster v. Forster, 1 Hagg. Cons. 154.

The facts ordinarily proved are, that the party proceeded against has wholly withdrawn from "bed, board, and cohabitation," without lawful cause; and unless evidence is brought to show that there has been no such withdrawal, or that there has been lawful cause for it, a return to cohabitation will be decreed.

Where the wife is acting on the defensive, she is not relieved from the proof of the necessary facts: yet, under such circumstances, the inferences arising from such facts when established may be stronger than where she is the original complainant: thus where a suit for the restitution of conjugal rights is instituted by the husband, the wife is not, according to the practice and doctrine of the Court, held precisely to the same strictness of proof, Bramwell v. Bramwell, 3 Hagg. 618.

Facts pleadable in bar to a suit for restitution are such only as upon proof will entitle the party who pleads them to a sentence of separation, such

sentence being prayed. Semble, from Barlee v. Barlee, 1 Add. 305; but the Court admitted facts, amounting neither to cruelty nor adultery, to proof, but refused to pledge itself that they would operate in bar of the husband's suit, Molony v. Molony, 2 Add. 249.

A separation under articles is no bar to a suit for restitution of conjugal rights, Sullivan v. Sullivan, 2 Add. 303. But such a deed may be very material as explaining the conduct of the parties, even though containing a covenant against bringing such suits, Westmeath v. Westmeath, 2 Hagg. 115 (Suppl.); Mortimer v. Mortimer, 2 Hagg. Con. 318; for such a covenant is against both the inherent condition of the married state and public policy, Warrender v. Warrender, 2 Cl. & Finn. 561.

Where in a suit for restitution of conjugal rights at the instance of the wife, it was alleged that the husband withdrew from bed, board, and mutual cohabitation with his wife, and that though, allowed to reside in the same house with her husband, she was denied access to his person and bed, and refused common necessaries for her support and maintenance, the Court held that, as the parties were actually cohabiting, it was not competent for it to interfere between them in the manner now prayed: no instance was cited, and matrimonial intercourse might be broken off on considerations with which it was quite incompe

tent to the Court to interfere. As to the other charge, of the wife being denied common necessaries, this, however proper to be pleaded in a cause of divorce by reason of cruelty, was held improper and unprecedented in a suit for restitution, Orme v. Orme, 2 Add. 385.

Adultery is a good plea in bar to a suit for restitution of conjugal rights, Oughton, tit. 215.

It was competent for the husband sued for a restitution of conjugal rights to plead adultery by the wife, and obtain a divorce without instituting a cross suit, or taking out a separate citation returnable in the same suit, Dynely v. Dynely, Bentley v. Bentley, and Matthews v. Matthews, quoted and affirmed in Best v. Best, 1 Add. 411. See also Owen v. Owen, 4 Hagg. 261; but now there might be some difficulty, inasmuch as a suit of restitution may be heard before the Judge Ordinary, whereas the divorce could be decreed by the Full Court only. See App. post, note to Form 24.

Where, in a suit by the wife, adultery was set up as a defence, and the alleged paramour slept at the husband's house in his absence; she was herself absent from her home two nights and refused to say where she passed them (she being proved not to have been with some friends whom she stated previously she was engaged to visit) and also attempted to suborn perjury, the suit was dismissed, and a separation decreed, Owen v Owen, 4 Hagg. 261.

Cruelty is a bar to a sentence of restitution of conjugal rights and will entitle the party pleading it on proof, to a sentence of separation, Oliver v. Oliver, 1 Hagg. Con. 361, and entitles the party proving it to a decree of judicial separation, without instituting a fresh suit, Dysart v. Dysart, 1 Robt. 106.

Where the husband was irritable, and there was much of violence and intemperate passion in his conduct; words, and attitudes of menace which might produce present intimidation, and which could be excused only by the madness of intoxication, the Court held that these facts were deserving of great attention if adduced in bar of a suit for restitution of conjugal rights, Chambers v. Chambers, 1 Hagg. Con. 452.

It is the duty of the Court, when it considers other acts, to bear in mind the species of temper which rules the person who now demands to have his wife again placed under his marital authority, Westmeath v. Westmeath, 2 Hagg. 98 (Suppl.)

Where the wife has been guilty of adultery, and the husband has been also guilty, although the doctrine of compensatio criminum bars either party from bringing a suit for dissolution of marriage or judicial separation, and leaves both without a remedy, yet the Court will not decree a restitution of conjugal rights; and a party guilty of a breach of the marriage vow (uncondoned), shall

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