CHAPTER XIX.

OF MATRIMONIAL AND PARENTAL INJURIES, ADULTERY, AND

SEDUCTION.

SECTION I.-Of infringements of matrimonial and parental rights.—Rights of wives deserted by their husbands-Restitution of conjugal rights-Judicial separation-Cruelty and desertion-Revival of condoned cruelty-What amounts to desertion without cause-Rights of married women after a decree for a judicial separation-Alimony-Adultery and dissolution of the marriage contract-Adultery and desertion on the part of the husband-Wilful neglect or misconduct conducing to adultery-Connivance-Condonation of adultery -Alimony on dissolution of marriage-Orders for settlement of property for the benefit of the innocent party and children-Power of the Divorce Court over marriage settlements-Orders respecting the custody of children-Right of fathers and guardians to the custody of infant children-Control over this right exercised by the courts-Custody of children of British subjects born abroad-Custody of children of foreigners-Right of mothers to the custody of children under seven years of age-Obligation of parents to provide for children-Evidence on the hearing of petitions-Competency of the husband and wife to give evidence-Trial of questions of fact before a jury-Petitions for damages from adulterers-Evidence thereon-Proof of marriage-Damages recoverable-Application thereof.

SECTION II.—Of seduction.-Harboring of married women-Seduction and loss of servants, daughters, and wards-Pretended hiring of girls for purposes of seduction-Seduction of married daughters-Proof that defendant, though he seduced the girl, was not the father of her child-Proof of the seduction having been occasioned by the plaintiff's neglect of his parental duties—Parties to actions for seduction-Pleadings, defences, and evidence-Damages recoverable-Indictments for the abduction of unmarried girls under age.

SECTION I.

OF THE INFRINGEMENT OF MATRIMONIAL AND PARENTAL RIGHTS.

1233 Rights of wires deserted by their husbands.-A wife deserted by her husband may at any time after such desertion, if resident within the metropolitan district, apply to a police magistrate, or if resident in AD. VOL. II.-67

the country, to justices in petty sessions, or in either case to the Divorce Court, or the judge ordinary thereof, for an order to protect any money or property she may acquire by her own lawful industry(a), and property which she may become possessed of, after such desertion, against her husband, or his creditors, or any person claiming under him; and such magistrate, or justices, or court, if satisfied of the fact of the desertion, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and property, acquired since the commencement of the desertion(b), from her husband and all creditors and persons claiming under him; and such earnings and property will belong to the wife as if she were a feme sole(c): but every such order, if made by a police-magistrate or justices at petty sessions, must, within ten days after the making thereof, be entered with the registrar of the county court within the jurisdiction of which the wife is resident; and the husband, and any creditor or other person claiming under him, may apply to the court, or to the magistrate, or justices by whom such order was made(d), for the discharge thereof. If the husband or any creditor of, or person claiming under, the husband, shall seize, or continue to hold, any property of the wife after notice of any such order, he may be compelled, at the suit of the wife, to restore the specific property, and also a sum equal to double the value of the property so seized or held after such notice as aforesaid: 20 & 21 Vict. c. 85, s. 21; 21 & 22 Vict. c. 108, s. 6.

1234 Right of action of married women after they have obtained an order for protection-When an order of protection has been made, the wife, during the continuance thereof, is in the like position in all respects with regard to property and contracts, and suing and being sued, as if she had obtained a decree of judicial separation (s. 21). These provisions extend to property to which the wife becomes entitled as executrix, administratrix, or trustee(e). It has been held that a retrospective effect cannot be given to this order-so far as it affects the rights and liabilities of third parties-and, therefore, if a married

(a) As to the meaning of term "lawful," see Mason v. Mitchell, 34 Law J., Exch. 68. (b) See, In the goods of Ann Elliott, L. R., 2 Prob. & Div. 274.

(c) See The Married Women's Property Act, 1870 (33 & 34 Vict. c. 93).

(d) It was held, in Ex parte Sharp, 33 Law J., M. C. 152, that where the magistrate who had made the order died, his successor had no jurisdiction to discharge it, but the 27 & 28 Vict. c. 44, now provides that his successor, or the justices at subsequent sessions, or the court may discharge the order.

(e) 21 & 22 Vict. c. 108, s. 7.

Sec. 1.] DESERTION—RESTITUTION OF CONJUgal rights. 1059 woman commences an action after the desertion of her husband, but before she has obtained an order, the subsequent procurement of the order cannot make valid the invalid proceeding, for it would lead to incalculable mischief if the words of the statute were construed to have that effect as regards third parties().

The affidavit in support of an application to the Divorce Court for an order under this section of the statute should state circumstances sufficient to satisfy the court of the fact of the desertion. It should set out the time of the husband's going away, and state whether the wife has had any subsequent communication with him, and if so, the nature of that communication, whether she knows where he is or what he is doing, and whether she has received any money from him, or any promise to contribute to her support, or to return to her(g).

1235 What amounts to desertion.-Desertion, under s. 21 of the Divorce Act, 20 & 21 Vict. c. 85, means not only that the husband has absented himself from his wife, but has left her unprovided for; and such desertion must continue at the time of making the order, so that a bond fide offer on the part of the husband to return and provide for his wife would take away her right to have the order made(h).

A married woman, whose earnings and property have been protected against her husband and his creditors by an order made under s. 21. on account of his desertion of her, may obtain an order from the Court of Chancery for the payment of a legacy given to her in general terms(i). In case of her death, also, her personal property will descend to her next of kin, to the exclusion of her husband(j). 1236 of the restitution of conjugal rights.-Applications for the restitution of conjugal rights must be made to the Court for Divorce and Matrimonial Causes(k). The court may compel the man and wife to live under the same roof, but it cannot constrain them to have intercourse with each other, nor to live together on terms of conjugal affection(). A husband who has been served with a decree in a suit for restitution of conjugal rights, ordering him to take his wife home, is bound to take the first step by inviting her to return to him. If he does not, an

(ƒ) Mid. Rail. Co. v. Pye, 30 Law J., C. P. 315; 10 C. B., N. S. 179.

(7) Sewell, Ex parte, 28 Law J., Prob. & Matr. 8.

(h) Cargill v. Cargill, 27 ib. 70. See post, p. 1059.

(i) Re Kingsley, 28 Law J., Ch. 80.

(j) Re Stephenson, L. R., 1 Prob. & Div. 287.

(k) 20 & 21 Vict. c. 85, s. 17; 21 & 22 Vict. c. 108, s. 19.

(1) Shelford on Marriage and Divorce. Rogers on Ecclestiastical Law.

attachment will be issued(m). A deed of separation is no bar to a suit for the restitution of conjugal rights(n).

The doctrine of the canon law, that, where husband and wife have both been guilty of adultery, there is compenzatio criminum, and both are restored to the position of innocent parties, forms no part of the law of England. A suit, therefore, for the restitution of conjugal rights cannot be maintained by a wife who has committed adultery, although the husband has committed adultery (o). A suspension of the cohabitation must be clearly proved, in order to warrant the inter ference of the court(p).

1237 Of judicial separation on the ground of adultery, cruelty, or desertion. -By the 20 & 21 Vict. c. 85, s. 7, divorce a mensa et thoro is abolished, and in lieu thereof the Court for Divorce and Matrimonial Causes is authorized to pronounce a sentence of judicial separation between husband and wife, which may be obtained (s. 16) either by the husband or the wife on the ground of adultery, or cruelty, or desertion without cause for two years and upwards(q). A decree for a judicial separation, if made in the absence of the respondent, may be reversed(). A deed of separation is no bar to a suit for a judicial separation, although it may form a material element for the court to consider in investigating such a suit(s), and although if it contained a covenant by the wife not to sue for a judicial separation, such a covenant might perhaps be enforced in equity(t). If, after a decree for judicial separation on the ground of cruelty, and while they are living apart, the husband commits adultery, the wife will be entitled to a dissolution of the marriage(u).

The wife is entitled, in the discretion of the court, to alimony pendente lite(v), and an order for such is good, although she is subsequently proved to have been guilty of adultery, and her petition is dismissed(w). Such alimony is by the practice of the court payable

(m) Alexander v. Alexander, 30 Law J., Prob. & Matr. 173.

(n) Spering v. Spering, 3 Sw. & Tr. 211; 32 Law J., Prob. & Matr. 116. See Anquez ♥. Anquez, L. R., 1 Prob. & Div. 177.

(0) Hope v. Hope, 27 Law J., Prob. & Matr. 43.

(p) Orme v. Orme, 2 Add. 384.

(g) Brookes v. Brookes, 28 Law J., Prob. & Matr. 38.

(r) 20 & 21 Vict. c. 85, s. 23.

(8) Williams v. Williams, L.
(t) Williams v. Baily, infra.

Phillips v. Phillips, L. R., 1 Prob. & Div. 169.

R., 1 Prob. & Div. 178. See Williams v. Baily, infra.
See Brown v. Brown, L. R., 7 Eq. Ca. 185.

(u) Bland v. Bland, L. R., 1 Prob. & Div. 237.

(v) Thompson v. Thompson, L. R., 1 Prob. & Div. 553. Jones v. Jones, L. R., 2 Prob. & Div. 333. Hill v. Hill, 47 Ga. 332.

But not until the fact of marriage is proved to the satisfaction of the court, or is admitted, if marriage is denied in the answer. Brinkley v. Brinkley, 50 N. Y. 184.

(10) Whitemore v. Whitemore, L. R., 1 Prob. & Div. 96. See Coombs v. Combs, ib. 218. As

to her personally, but if she chooses to pay it into her attorney's hands, his lien upon it for her costs will attach(x).

1238 What amounts to cruelty.-If a husband refuses his wife the common necessaries of life, or treats her with gross insult and indignity; if he spits in her face, attempts to debauch her maid-servants(y), or puts her unnecessarily into confinement, or under personal restraint; or strikes her, or threatens her with personal violence unjustifiably, and without adequate provocation(2), and conducts himself so as to give her a reasonable apprehension of bodily harm if she continues to reside with him, he is guilty of cruelty, and entitles her to separation of bed and board(a). Everything is, in legal construction, cruelty,

to an injunction against the payment of alimony pendente lite, see Williams v. Baily, L. R., 2 Eq. Ca. 731.

(2) Ex parte Bremner, L. R., 1 Prob. & Div. 254.

(y) Saunders v. Saunders, 1 Rob. Eccl. 549. Divorces are not granted where the complainant wilfully provoked the violence or misconduct complained of, unless such violence was entirely out of proportion to the provocation. Reed v. Reed, 4 Nev. 395. Knight v. Knight, 31 Iowa, 451. Richards v. Richards, 37 Penn. St. 225. Johnson v. Johnson, 14 Cal. 459. Trowbridge v. Carlin, 12 La. An. 882. Skinner v. Skinner, 5 Wis. 449. David v. David, 27 Ala. 222. Poor v. Poor, 8 N. H. 307.

(2) Waring v. Waring, 2 Phill. 132.

(a) Gregory's case, 4 Burr. 1991. Leete v. Leete, 31 Law J., Prob. & Matr. 121. Waddell v. Waddell, ib. 123. Legal cruelty, authorizing divorce from a husband, consists either in acts of personal violence or such conduct on his part as creates reasonable apprehension of danger to the life, limb or health of the wife. Odour v. Odour, 36 Ga. 286. Cole v. Cole, 23 Iowa, 433. Ford v. Ford, 104 Mass. 198. Hughes v. Hughes, 44 Ala. 698. Caruthers v. Caruthers, 13 Iowa, 266. Morris v. Morris, 14 Cal. 76. Johnson v. Johnson, 4 Wis. 135. Bowie v. Bowie, 3 Md. Ch. Decis. 51. Nogees v. Nogees, 7 Texas, 538. See Shaw v. Shaw, 17 Conn.

189.

In Alabama a divorce a mensa et thoro was decreed where the pulling the wife's hair, choking her, and striking her in the face. 437.

acts of cruelty consisted in Turner v. Turner, 44 Ala.

In Illinois it was held that the repeated use of harsh and profane language by the husband to the wife, and choking her in one instance with the threat to do so again, did not constitute that extreme and repeated cruelty which is necessary to authorize a divorce under the statutes of that State. Embree v. Embree, 53 Ill. 394.

In Wisconsin it was held that the repeated application of coarse epithets to a wife, when accompanied in one instance by personal violence, and in another by threats to take her life, was sufficient cruelty to furnish ground for divorce. Freeman v. Freeman, 31 Wis. 235.

Under the Pennsylvania statute it is a good ground for divorce, 1, that the husband has by cruel and barbarous treatment endangered his wife's life, and 2, has offered such indignities to her person as to render her condition intolerable and life burdensome. But it is not necessary to bring a case within the statute, that the indignities to the wife should be of such a character as to endanger her life. May v. May, 62 Penn. St. 206. The habitual use of profane, threatening and abusive language towards the wife, neglect to provide the neces saries of life, and a single assault and battery without provocation, together with frequent intoxication are such indignities to her person as to entitle a wife to a divorce a vinculo Doan v. Doan, 3 Pa. Law Jour. R. 7. But see Cutler v. Cutler, 2 Brews. (Pa.) 511. On the other hand such treatment of a husband by his wife as renders his "condition intolerable and his life burdensome, is a ground for a divorce a vinculo. Jones v. Jones, 66 Penn. St. 494.

The statutes of New York authorize a divorce a mensa et thoro in favor of the wife for cruel and inhuman treatment by the husband, or for such conduct on his part as renders it unsafe for the wife to cohabit with him. As to what circumstances will warrant a decree for a divorce under this statute, see Davies v. Davies, 55 Barb. 130.

"Extreme cruelty, whether practiced by personal violence or by any other means," is