William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 2) online

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Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 2) → online text (page 71 of 96)
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547; S. C, 9 Abb. 18.

Treatment of a husband by a wife which renders his "condi-
tion intolerable and his life burdensome," is a ground of divorce
a vinculo, under the Pennsylvania statute. Jones v. Jones, 66
Penn. St. 494. But ''intolerable indignities" toward the hus-
band, and " grossly immoral conduct, rendering impossible the
bringing up of the issue of the marriage properly," are held
insufficient. Miles v. Miles, 76 Penn. St. 357.

A slight degree of negligence about household affairs, together
with short periods of absence, and profane and insulting lan-
guage indulged in by a wife toward her husband, were held not
to constitute the degree of extreme cruelty which the statute
contemplates as a ground of divorce, in a case where it did not
appear that the complainant was a person of such sensitive
nature and refined feelings as would be likely to be affected to
the degree of extreme cruelty, by such conduct or language.
Bennett v. Bennett, 24 Mich. 482.

Under the laws of Maryland, violent and outrageous conduct
on the part of the wife toward the husband, rendering the pro-
per discharge of the duties of married life impossible, is suffi-
cient ground for a divorce from bed and board. Lynch v. Lynch,
33 Md. 328.

In an English case, where a husband petitioned for a judicial
separation on the ground of cruelty, consisting of acts of per
sonal violence by the wife, the court, although it appeared that


the husband's safety was not endangered, granted a decree on
the ground that, by refusing to act in such a case, it would
impose on the husband the necessity of meeting force by force.
Forth v. Forth, 36 L. J., Mat. Cas. 122; S. C, 16 L. T. (N. S.)

§14. Ill-conduct of complaining party. In general, where the
acts of cruelty complained of are the natural and probable result
of the complainant's own misconduct, no foundation is laid for
a divorce (Moullon v. Moulton, 2 Barb. Ch. 309 ; Wood v. Wood,
2 Paige, 108 ; Knight v. Knight, 31 Iowa, 451 ; Richards v.
Richards, 37 Penn. St. 225) ; unless such acts of cruelty were
wholly disproportioned to the provocation. lb. ; Best v. Best, 1
Add. Ecc. R. 411, 423 ; Evans v. Evans, 1 Hagg. Con. 35 ; West-
meath v. Westmeath, 2 Hagg. Ecc. Sup. 1, 79 ; Eidenmuller v.
Eidenmuller, 37 Cal. 364 ; King v. King, 28 Ala. 315. The
remedy of the wife when ill-treated on account of her own mis-
conduct not out of proportion to the provocation, is a reform of
her own manners ; and if, after she reforms, the husband is
guilty of cruelty, the court will then interpose. Waring v.
Waring, 2 Phillim. 132 ; Holden v. Holden, 1 Hagg. Ecc. R. 453 ;
Poor v. Poor, 8 N. H. 307 ; Skinner v. Skinner, 5 Wis. 449 ;
Von Glahn v. Von Qlahn, 46 111. 134 ; and see, on this branch
of the subject, Bur and v. Her Husband, 4 Mart. (La.) 174 ;
David v. David, 27 Ala. 222 ; Taylor v. Taylor, 4 Desaus. (S. C.)
167. In respect to the question, as to how much ill-behavior on
the part of the wife will take away her remedy, it has been
remarked that " the criterion by which, in human tribunals, the
conduct of human beings is to be estimated, should be formed,
not according to the rule either of ideal perfection or of occasional
excellence, but according to the standard which, being attain-
able by the various classes to which it is to be applied, is suffi-
ciently high to insure the preservation and promotion of the
morals and good order of society." Mayhugh v. Mayhugh, 7
B. Monr. (Ky.) 424.

Acts of violence to the person of the wife sufficient to authorize
a divorce on the ground of extreme cruelty, were held not to
be excused by the fact that the wife had an irascible temper,
and conducted herself improperly toward the husbaud. Eiden-
muller v. Eidenmuller, 37 Cal. 364. But violence committed
during a quarrel, in which the husband suffers as much as the
wife, is not such cruelty as will sustain an action for divorce
against him. Soper v. Soper, 29 Mich. 305.




Section 1. In general. The only remedy provided by the law
of England, independent of statute, for the desertion of one of
the married parties by the other, is the suit for the restitution of
conjugal rights ; a proceeding in which the court will compel
the parties to come together again, if either be weak enough to
desire it, contrary to the inclination of the other. 3 Bl. Com. 94 ;
and see, as to this remedy, Orme v. Orme, 2 Add. Ecc. R. 382 ;
Barlee v. Barlee, 1 id. 301. By the statute of 20 & 21 Vict., c. 85,
§ 16, provision is made for the judicial separation of parties, not
only on the grounds of cruelty and adultery, but also on the
ground of "desertion without cause for two years and upward."
This statute does not, however, abolish the suit for the restitution
of conjugal rights, and it is still maintainable in the new court
for "Divorce and Matrimonial Causes." Scott v. Scott, 4 Swab.
& Tr. 113 ; Cr others v. Qr others, L. R., 1P.&M. 568; Miller v.
Miller, L. R., 2 id. 13; and see Manning v. Manning, 7 Ir. R.
Eq. 520.

The suit for the restitution of conjugal rights has never been
adopted in this country (see Coverdill v. Coverdill, 3 Harr.
[Del.] 13 ; Cruger v. Douglass, 4 Edw. Ch. 433, 506; Rhame v.
Rhame, 1 McCord's [S. C] Ch. 197); and the remedy for desertion,
where such remedy exists, is a suit for divorce provided by stat-
ute. The offense of desertion, as constituting a ground of
divorce, is variously described in the statutes of the different
States ; but the descriptive phrases are construed to be substan-
tially of the same legal import, the difference being mainly in
the length of the periods of absence prescribed. Thus a statute
of Connecticut provided a divorce from the bond of matrimony
for "willful desertion for three years, with total neglect of duty
by the other party" (Rev. Stat, of 1849, ch. 2, § 10) ; a statute of
New Hampshire, " when either party, without sufficient cause,
and without consent of the other, shall have abandoned such
other, and refused for three years to cohabit with such other"
{Pay son v. Pay son, 34 N. H. 518); a statute of Pennsylvania,
when either party is chargeable with "willful and malicious
desertion, and absence from the habitation of the other, without
a reasonable cause, for and during the space of two years"
{Butler v. Butler, 1 Pars. [Penn.] Eq. Cas. 329); a statute of Ohio,


"where either of the parties shall have been willfully absent
from the other for three years" (Swan's Stat, of ls-i<i. Hi. 40, t 1 };
a statute of Missouri, "when either party has absented herself
or himself, without a reasonable cause, for the Bpace of two
years" {Freehand v. Freeland, 19 Mo. 354); and a statute of
New Jersey, "for willful, continued and obstinate desertion for
the space of three years." Cook v. Cook, 2 Beas. (N. J.) 263;
Rogers v. Rogers, 18 N. J. (Law) 445. The statute of Missis-
sippi is worded in like terms. See Fulton v. Fulton, 36 Miss.
517 ; Gaillard v. Gaillard, 23 id. 152. See as to the Maryland
statute (Levering v. Levering, 16 Md. 213): the statute of
Georgia (Word v. Word, 29 Ga. 281); of California (BeuJcert v.
Beukert, 32 Cal. 467) ; of Kentucky (Becket v. Becket 17 B.
Monr. [Ky.] 370) ; and of Massachusetts. Fera v. Fera. 98 Mass.
155; Southioick v. Southioick, 97 id. 327; Wales v. Wales, 119
id. 89. The statutes are constantly undergoing change, and the
existing statute of the particular State should be consulted.

§ 2. Ceasing to cohabit. Desertion, in the law of divorce, as
defined by Bishop, "is the voluntary separation of one of the
married parties from the other, or the voluntary refusal to renew
a suspended cohabitation, without justification either in the con-
sent or the wrongful conduct of the other.' ' 1 Bish. Mar. & Div.,
§ 776. The offense is composed, first, of the actual breaking off
of the matrimonial cohabitation, and, secondly, an intent to
desert in the mind of the offender. Both of these ingredients
must combine to make a desertion complete. Bailey v. Bailey,
21 Gratt. (Va.) 43 ; Morrison v. Morrison, 20 Cal. 431. But it is
immaterial as it respects the distance to which the parties remove
apart, whether it be great or small. The refusal of the husband
or wife to dwell with the other party to the marriage, as husband
or wife, is desertion; and it has, therefore, been held, that there
may be desertion, although the parties continue to occupy the
same house. Fishli v. Fishli, 2 Litt. (Ky.) 337 ; and see Moss v.
Moss, 2 Lred. (N. C.) 55 ; Hermance v. James, 32 How. (N. Y.)
142 ; S. C, 47 Barb. 120, 126. In a case in Massachusetts, it was
however held, that the word "desertion" in the statute of that
State does not signify merely a refusal of matrimonial inter-
course, which would be a breach or violation of a single or con-
jugal or marital duty or obligation only, but it imports a
cessation of cohabitation, a refusal to live together, which
involves an abnegation of all the duties and obligations result-
ing from the marriage contract. Southwick v. Southioick, 97


Mass. 327 ; see Magrath v. Magrath, 103 Mass. 577 ; S. C, 4
Am. Rep. 579 ; Yeatman v. Teatman, L R., 1 P. & M. 489 ;
Macdonald v. Macdonald. 4 Swab. & Tr. 242 ; Re'ul v. Reid, 21
N. J. Eq. 331.

It being cause for divorce in New Hampshire, if the husband
or wife " shall have joined any religious sect or society which
professes to believe the relation of husband and wife to be un-
lawful, and refused to cohabit with each other for the space of
three years," it was held that it is none the less a cause for
divorce if both have joined such society, and afterward the hus-
band has ceased to be a member while the wife has refused so
to do. Fitts v. Fitts, 46 N. H. 184 ; and see Dyer v. Dyer, 5
id. 271.

£ 3. Intention to desert. We have seen from the definition of
desertion in the preceding section, that there must be the intent
to desert, and this intent is manifested when, without cause or
consent, either party withdraws from matrimonial cohabitation
with the other. Ingersoll v. Ingersoll, 49 Penn. St. 249 ; Orr v.
Orr, 8 Bush (Ky.), 156. If a husband or wife leaves the other
with his or her full and voluntary assent, it is no desertion. lb. ;
Lea v,. Zea, 8 Allen, 418 ; Crow v. Crow, 23 Ala. 583 ; Fulton v.
Fulton, 36 Miss. 517 ; Buckmaster v. Buckmaster, L. R., 1 P. &
M. 713 ; Lynch v. Lynch, 33 Md. 328 ; Marsh v. Marsh, 14 N".
J. (Eq.) 315. Nor is the mere absence of the husband on busi-
ness a desertion ( Williams v. Williams, 3 Swab. & Tr. 547) ;
and desertion cannot be inferred against either party from the
mere unaided fact that the husband and wife live apart. Van
Voorhees v. Van Voorhees, Wright (Ohio), 636 ; McCoy v. McCoy,
3 Ind. 555 ; Jones v. Jones, 13 Ala. 145 ; Gaines v. Gaines, 9 B.
Monr. (Ky.) 297 ; Rogers v. Rogers, 18 N.J. (Law) 445 ; see
Ahrenfeldt v. Ahrenfeldt, 1 Hoff. Ch. 47. The separation and
desertion are not necessarily identical in the time of their com-
mencement (see lb.) ; and where the husband left his wife intend-
ing to return, but afterward resolved to continue away, the
desertion was held to begin at the time such resolution was
formed. Reed v. Reed, Wright (Ohio), 224 ; see also Conger v.
Conger, 2 Beas. (N. J.) 286; Holston v. Holston, 23 Ala. 77? ;
Finkhard v. Finkhard, 14 Tex. 356 ; Gatehouse v. Gatehouse,
L. R., 1 P. & M. 331. But legal desertion ends with the intent
to desert ; and where a. husband deserts his wife, and afterward
returns and makes an effort to live with her, which from any
cause fails, he cannot be regarded as willfully absent from her,


and guilty of desertion. Friend v. Friend, Wright (Ohio), 639.
If the wife is prevented from uniting with her husband by the
coercion of her parents, the court, on proper application, will
restrain them from interfering, and will take measures to bring
the husband and wife together. lb. ; and see People v. Mercein,
8 Paige, 47 ; Ex parte Sandilands, 12 Eng. Law & Eq. 463 ; In
re Price, 2 Fost. & F. 263. And if the wife voluntarily rejects
the husband's proposal to renew cohabitation with her, the full
statutory period not having elapsed, this is a desertion on the
part of the wife, from the time of her refusal. Walker v. Laigh-
ton, 11 Fost. (N. H.) 111. So a consent by parties to separate
may be revoked {Crow v. Crow, 23 Ala. 583) ; and where, after a
separation by consent, one of the parties in good faith seeks a
reconciliation, but the other refuses to return (Miller v. Miller,
Saxton [N. J.], 386 ; Cunningham v. Irwin, 7 Serg. & R. 247) ;
or if the separation is for cause, and the cause is removed, but
one of the parties declines to renew the cohabitation (Hills v.
Hills, 6 Law Rep. 174) ; or if the wife having separated from
her husband without cause returns, and he will not receive her
(Fellows v. Fellows, 31 Me. 342) ; it is a desertion by the party
refusing, from the date of the refusal. lb. ; see also McCutchen
v. McGaliay, 11 Johns. 281 ; Clement v. Mattison, 3 Rich. (S.
C.) 93 ; Hanberry v. Hanberry, 29 Ala. 719 ; Grove's Appeal, 37
Penn. St. 443.

When a husband either actually drives his wife from himself
and his house (Morris v. Morris, 20 Ala. 168 ; Kinsey v. Kinsey,
37 id. 393 ; Harding v. Harding, 22 Md. 337 ; Shrock v. Shrock,

4 Bush [Ky.], 682); or, by cruel and abusive treatment, compels
her to leave it for safety or comfort (Levering v. Levering, 16
Md. 213 ; Washburn v. Washburn, 9 Cal. 475 ; Wood v. Wood,

5 Ired. (N. C.) 674 ; Camp v. Camp, 18 Tex. 528), it is a deser-
tion by him. But when the wife leaves her husband and his
home, and goes and continues to reside elsewhere, this is, prima
facie, an abandonment on her part ; and the burden of proof is
upon her to show that her going away was not voluntary, but
that she was compelled to go by the treatment or command of
her husband. Starkey v. Starkey, 21 N. J. Eq. 135 ; Carter v.
Carter, 62 111. 139 ; see Palmer v. Palmer, 7 C. E. Green (N.
J.), 88 ; Marker v. Marker, 3 Stockt. (N. J.) 256.

The general doctrine is laid down that the husband has the
right, without the consent of the wife, to establish his domicile in
any part of the world, and it is the legal duty of the wife to


follow his fortunes, wheresoever he may go. Hair v. Hair, 10
Rich. (S. C.) Eq. 163 ; Walker v. Laighton, 11 Fost. (N. H.) Ill ;
Messenger v. Messenger, 56 Mo. 329, If, therefore, a wife will-
fully and maliciously declines to accompany her husband to a
new home without any just or reasonable cause, it is an act of
desertion on her part. Cutler v. Cutler, 2 Brewst. (Penn.) 511.
But where, upon an ex parte hearing of an application for a
divorce on account of willful desertion, it only appeared that the
wife had refused to move with her husband " to live near his
relatives," and had persisted in refusing to join him after his
removal, it was held that, in the absence of evidence showing
the contrary, this excuse must be presumed to have been
made bona fide, and that the application must be dismissed.
Powell v. Powell, 29 Vt. 148 ; and see Bishop v. Bishop, 30
Penn. St. 412 ; Gleason v. Gleason, 4 Wis. 64. A bond given
by a husband to the guardians of the poor conditioned for the
support and maintenance of his wife, who had left his house, is
held a bar to his successful prosecution of a proceeding for a
divorce for willful and malicious desertion, under the Pennsyl-
vania statute. Van Leer v. Van Leer, 13 Penn. St. 211.

The intent to abandon and desert, when once established, will
be presumed to continue until the contrary is shown. Bailey v.
Bailey, 21 Gratt. (Ya.) 43.

§ 4. Justifying desertion. It is not entirely clear from the
adjudged cases what would be deemed an adequate excuse
for a desertion. In Pennsylvania it is an established rule that the
"reasonable cause" which will justify husband or wife in
abandoning each other, within the meaning of the act defining
desertion, is that and only that which would entitle the party so
separating himself or herself to a divorce. Butler v. Butler, 1 Pars
Eq. Cas. 329 ; Groves' Appeal, 37 Penn. St. 443 ; Cattison v. Catti
son, 22 id. 275. And a like rule has been laid down by the court in
other States. See Carter v. Carter, 62 111. 439 ; Pierce v. Pierce,
33 Iowa, 238 ; Logan v. Logan, 2 B. Monr. (Ky.) 142. But some-
thing less than the requirement of the above rule has been
regarded sufficient to justify a desertion in some of the cases.
See Yeatman v. Yeatman, L. R , 1 P. & M. 489. Thus it has
been held that, where irritating and vexatious conduct on the
part of the husband toward the wife is the cause of her
absence from his domicile, he cannot found a claim for
divorce on the ground of desertion upon it. Cornish v. Cor-
Vol. II.— 73


wish, 23 N. -J. Eq. 209. And in an Alabama case, it was
held that a wife does not "voluntarily leave her husband,"
within the meaning of the statute, when she goes away because
of an unfounded charge of infidelity made by her husband and
never retracted. Hardin v. Hardin^ 17 Ala. 250; and Bee Laing
Laing, 6 C. E. Green (N. J.), 248 ; Oillinwaters v. Gillinwaters,
•is Mo. 60; Nauletv. Dubois, 6 La. Ann. 403.

The wife's fear of having too many children will not justify
her in leaving her husband, so as to prevent him from obtaining
a divorce for the desertion. Leaoitt v. Leamtt, Wright (Ohio), 719.
So if a husband be accused of a crime, or be guilty of it, this is
no good cause for his wife to refuse to live with him, and she is
not thereby justified in leaving him, since she took him "for
better, or for worse." Foy v. Foy, 13 Ired. (N. C.) 90.

A desertion by the husband was held sufficient, although dur-
ing the greater part of the statutory period he had been confined,
under successive sentences, in the house of correction for his
crime. That it was "willful" was shown by the proof that it
commenced before the defendant was imprisoned, and that dur-
ing the intervals between his several commitments to the house
of correction, he neither returned to the society of his wife, nor
contributed any thing to her maintenance or support. Hews v.
Hews, 7 Gray, 279. In an English case, the husband had been
several times convicted of larceny, and sentenced to terms of
imprisonment. The first separation occurred when he withdrew
from home, with his wife' s consent, for the purpose of conceal-
ment. On his release the wife refused to return to cohabitation,
and ultimately sued for a divorce. The court held that there
was no desertion ; the original separation having been with the
wife's consent, and the subsequent separation being involuntary
on the husband's part, and caused by the refusal of the wife,
which was not founded on any matrimonial misconduct. Town-
send v. Townsend, L. R., 3 P. & M. 129 ; S. C, 8 Eng. R. 611.
And where a" wife was held for a year for trial, charged by her
husband with an attempt to take his life by poisoning, the court
adjudged that her absence was not, in law, a desertion. Porritt
v. Porritt, 18 Mich. 420. The statute of Iowa allows the. wife a
divorce, when the husband "willfully deserts his wife, and
absents himself without a reasonable cause for the space of two
years," and where a husband deserted his wife while sane, it was
held, in an action by her for a divorce under this provision of
the statute, that he could not excuse his subsequent absence for


two years by showing that he became insane within that time.
Douglass v. Douglass, 31 Iowa, 421.

There is no more important right of the wife than that which
secures to her in the marriage relation the companionship of her
husband, and the protection of his home. His willful denial of
this right, with the intentional and permanent abandonment of all
matrimonial intercourse, against her consent, is desertion. And
in a suit by the wife for divorce on the ground of such desertion,
it is no defense that the husband has, from time to time, con-
tributed to her support and the support of her children. Ma-
grath v. Magrath, 103 Mass. 577; Yeatman v. Yeatman, L. R.,
i P. & M. 489 ; Macdonald v. Maodonald, 4 Swab. & Tr. 242.

In the English law, it is not deemed malicious desertion for the
husband to withdraw from cohabitation with his wife, pending
his suit for a decree of nullity of the marriage, notwithstanding
the judgment in the suit should be against him. During the
pendency of such a suit, cohabitation is not only not incumbent
by law, on the parties, or on either of them, but it would even
be legally censurable, at least in the husband. Sullivan v. Sul-
livan, 2 Add. Ecc. R. 299 ; Clowes v. Clowes, 9 Jur. 356. The
same principle is applicable to divorce suits {Edwards v. Green.
9 La. Ann. 317; Sykes v. Halstead, 1 Sandf. [N. Y.] 483) ; and
the voluntary withdrawal from cohabitation by a husband or
wife, while proceedings, at the instance of either, are pending
against the other for a divorce on a charge of adultery, does not
constitute a willful desertion in contemplation of law. Marsh
v. Marsh, 14 N. J. Eq. 315 ; Simans v. Simons, 13 Tex. 468 ;
Doyle v. Doyle, 26 Mo. 545.

The question arose in an English case, whether a woman who
voluntarily enters into an agreement that her husband shall live
apart from her, can be said to have been deserted without just
cause, and it was held that she cannot. Crabb v. Crabb, L. R.,
1 P. & M. 601 ; Parkinson v. Parkinson, 2 id. 25. And a hus-
band, having refused to cohabit with his wife, or to provide a
home for her, offered her £100, on condition that she would not
molest him in future by insisting on her conjugal rights, she
agreed to the condition and received the money, and they never
afterward cohabited, it was held that these facts did not consti-
tute desertion on the part of the husband. Buckmaster v. Buck-
master, L. R., 1 P. & M. 713; and see Anquez v. Anquez, id. 176 ;
Nott v. Nott, id. 251. But if parties living together enter into
articles of separation which are not acted upon, and one of the


parties afterward deserts the other, this is no bar to a divorce for
the desertion. Cock v. Cock, 3 Swab. & Tr. 514. Nor is a deed
of separation a bar to a suit for the restitution of conjugal rights
(Spering v. Spering, id. 211-; Mortimer v. Mortimer, 2 Hagg.
Con. 310 ; Connelly v. Connelly, 2 Eng. L. & Eq. 570 ; Smith v.
Spiith, 2 Hagg. Ecc. Sup. 44, note) ; even though it contains a
covenant not to bring the suit. lb. ; Brown v. Brown, L. R., 7
Eq. 185. Nor is it a bar to a suit for divorce. Rogers v.Hogers,
4 Paige, 516 ; Stokes v. Stokes, 1 Mo. 324. And if, after the exe-
cution of articles of separation, one of the parties makes appli-
cation to the other in good faith for a renewal of the cohabitation,
which is refused, such refusal amounts to a desertion, sustaining
the suit for divorce. Miller v. Miller, Saxton (N. J.), 386.

§ 5. Length of time of desertion. Where suit is brought for
a divorce, upon the ground of desertion, an offer made by the
defendant to return and live with the plaintiff is not sufficient to
contradict the charge of desertion, unless it was made in good
faith for the purpose expressed, and not as a device to defeat the
plaintiff's suit {Friend v. Friend, Wright [Ohio], 639 ; Gaillard
v. Gaillard, 23 Miss. 152 ; Messenger v. Messenger, 56 Mo. 329 ;
Walker v. Laighton, 11 Fost. [N. H.] Ill) ; and such offer must
have been made during the statutory period. lb. If the deser-
tion has been continuous throughout the number of years
required by the statute, and the offer to renew cohabitation is
then made, the deserted party may refuse the offer ; and such
refusal will not bar the already existing right. Hesler v. Hesler,
Wright (Ohio), 210 ; Benkert v. Benkert, 32 Cal. 467 ; Basing v.
Basing, 3 Swab. & Tr. 516 ; Fishli v. Fishli, 2 Litt. (Ky.) 337 ;
and see Hanberry v. Hanberry, 29 Ala. 719.

A husband's petition for divorce on the ground of desertion
was refused by the court in Rhode Island, where it appeared
that the wife would have returned had the husband invited her
to do so. Thorpe v. Thorpe, 9 R. I. 57 ; and see Bowlby v.
Bowlby, 25 N. J. Eq. 406.

Whether an offer by a husband to receive and provide a home
for his wife, whom he has abandoned, is made in sincerity and
with a bona fide intention to perform his matrimonial duty, is
held to be a question for the court to determine. McClurg's
Appeal, 66 Penn. St. 366.




Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 2) → online text (page 71 of 96)