a divorce for adultery is a bar.(j) On the principle that condonation extinguishes the right of complaint, reconciliation was pleadable to a charge of elopement and adultery in bar of dower.(k) After a divorce a mensa et thoro, which had remained in force during the coverture, the court of chancery will not assist the wife in recovering her dower, nor decree her a distributive share of her husband's estate.(/) A wife divorced a mensa et thoro on account of her adul[ *421 ] tery forfeits her right to her moiety and widow's chamber, according to the custom of London.(m) The wife by her elopement with an adulterer does not forfeit her jointure; and notwithstanding her misconduct she may enforce in a court of equity articles making a provision for her separate use ;(n) and it is an unavailing defence on the part of the husband that the wife is living separate from him in adultery (o) A bond given by the husband to secure an annuity to his wife is not affected by her adultery.(p) In cases where no settlement has been executed, but funds belonging to the wife are in court, and applications have been made by both parties after adultery by the wife, each claiming the funds, the course adopted by the court has been to withhold the fund altogether, and neither to give it to the husband, as being the wife's property, nor to the wife, lest it might induce her to continue in adultery; although the husband was allowed to receive out of the dividends the costs of a groundless suit instituted by the wife against him in the ecclesiastical court.(q) So the court refused to order a provision for a wife out of dividends to which she was entitled for life, who was living on a mere separation apart from her husband, an officer going from place to place on duty, who was willing to receive her.(r) But if the husband has deserted the wife, and the court has a continuing power over her property, the court will maintain her out of it during the desertion.(s) We have already seen that the court will enforce a settlement of the property of female wards who have married without consent, and afterwards lived in adultery.(t) The husband of a woman who elopes from him, whether she lives [ *422 ] in adultery or not, is not liable to be charged for her *con tracts.(u) So where the husband turns his wife out of doors on account of her having committed adultery under his roof, he is not liable to necessaries furnished to her after her expulsion.(v) The husband is not bound to receive or to support his wife after her commission of adultery, although he had before been guilty of adul (j) 1 Roll. Abr. 681; Co. Litt. 32 a, n. 9. (k) Lady Ann Powis v. Herbert, Dyer's R. fol. 106; Co. Litt. 32 b; 1 Bro. Ent. 204; see Harris v. Morris, 4 Esp. 42. (1) Shute v. Shute, Pre. Ch. 111. (m) Pettifer v. James, Bunb. 16. (n) Sidney v. Sidney, 3 P. Wms. 269; see Lee v. Lee, Dick. 321. (0) Blount v. Winter, 3 P. Wms. 276, n. by Cox; see 2 Roper on Husband and Wife, 134-137. (p) Field v. Serres, 1 Bos. & P. N. R. 121. (q) Ball v. Montgomery, 2 Ves. jun. 191; 4 Br. C. C. 339; Carr v. Eastabrooke, 4 Ves. 146; see Watkyns v. Watkyns, 2 Atk. 96. (r) Bullock v. Menzies, 4 Ves. 798. (8) Wright v. Morley, 11 Ves. 12; Lloyd & Gould, 327; Oxenden v. Oxenden, 2 Vern. 493; Pre. Ch. 239; Williams v. Cal. low, 2 Vern. 752; Watkyns v. Watkyns, 2 Atk. 96; see post, of Alimony. (t) Ball v. Coutts, 1 Ves. & B. 302; ante, p. 318. (u) Morris v. Martin, Str. 647; Child v. Hardyman, ib. 875. See post, pp. 437, 438. (v) Ham v. Toovey, Selw. N. P. 260. tery, and turned her out of doors without any imputation on her conduct; in such a case the ecclesiastical court would not assist the wife in a suit for restitution of conjugal rights.(x) A man is not liable to the penalty 5 Geo. 4, c. 83, s. 3, for refusing to maintain his wife, who has left him and committed adultery, although he has been guilty of the same offence since her departure.(y) But where a man, knowing his wife to have committed adultery, allowed her to live separately in his house without making her any provision, the husband was held liable to necessaries furnished by a person who was ignorant of the way in which the wife lived.(z) Though an adulterous elopement will prevent the husband's liability during its continuance, it is no answer where the husband has taken his wife back, and afterwards turned her out of doors without any fresh misconduct on her part. (a) SECT IV.-OF CRUELTY. Duties of Conjugal Relation.]—The duties of the conjugal relation, like those of all other reciprocal affinities, however minutely divided and subdivided, are involved in the simple obligation to make those who are the object of it as happy as possible. The husband ought to promote the happiness of the wife-the wife is bound to seek the happiness of the husband. This rule is sufficiently efficacious where affection is sufficiently strong. The marriage vow is morally violated not only by adultery, but by "any behaviour which knowingly renders the life of the other miserable; as desertion, neglect, prodigality, drunkenness, peevishness, penuriousness, jealousy, *or any levity of conduct which administers occasion of [ *423 ] jealousy."(b) Most of these causes, however, are without the pale of legal interference. Cases of occasional disagreement and misunderstanding too often occur, and then what is the duty? An eminent philosopher has thus answered the question. (c) "In such cases it is obviously necessary that for mutual peace the will of one should be submitted to the will of the other; and if a point so important as this were left to the decision of the individuals themselves, without any feeling of greater duty on either side, the disagreement it is evident would still be continued under a different name; and instead of combating who should concede, the controversy would be, of whom it was the duty to make the concession. It is of most important advantage, therefore, upon the whole, that there should be a feeling of duty to be called in for decision in such unfortunate cases; and since, from various circumstances, natural and factitious, a man is everywhere in possession of physical and political superiority, since his education is usually less imperfect, and since the charge of providing for the (x) Govier v. Hancock, 6 T. R. 603. (b) Paley's Moral Phil. b. 3, part 3, ch. 8. (c) See Brown's Philosophy of the Human Mind, lecture 88. support of the family in almost every instance belongs to him, it is surely, from all these circumstances, fit, upon the whole, that if the power of decision in doubtful matters should be given to one rather than to the other, it should be with man that it is to rest, whatever number of exceptions there may be, in which, but for the importance of the general rule, it would have been of advantage that woman, in those cases the wiser and more virtuous, were the decider. The power of decision, therefore, which for the sake of peace must be understood as resting somewhere, should rest with man; but though it rest with him, it is only in unfortunate cases that the power of authoritative decision should be exercised. On the general circumstance of conjugal life there should be absolute equality, because where love should be equal there should be that equal desire of conferring happiness which is implied in equality of love; and he, who from the mere wish of gratifying his feeling of superiority, can wilfully thwart a wish of her whose wishes, where they do not lead to [ *424 ] any moral or prudential impropriety, *should be to him like his own, or even dearer than his own, if they did not truly become his wishes when known to be her's, would deserve no slight punishment as the violater of conjugal obligation, if he were not almost sufficiently punished in the very want of that better affection, the delightful feeling of which would have saved him from his tyranny of power." In reference to a case where a lady of considerable fortune, which she had retained in her own power, had married a man in an inferior station of life, though not in circumstances of necessity, Lord Stowell said, "It is the law of religion, and the law of this country, that the husband is intrusted with authority over his wife. He is to practise tenderness and affection, and obedience is her duty; and in taking the character of wife, she is to take upon herself at the same time the duties attached to it."(c) Cruelty on the part either of a husband or wife is a sufficient ground for separation by the laws of England. A divorce on account of cruelty seems to be grounded on the law of nature; (d) for as marriage was instituted by God in a state of innocence, it must of consequence be for the mutual comfort and help of each other; and therefore a cruel and severe treatment frustates one of the ends of that state. The spiritual court has proper jurisdiction in cases of this nature.(e) Although either a wife or husband may require surety of the peace from each other before magistrates or judges, on account of such violence, or reasonable apprehension of it, as endangers personal safety.(f) So surety of the peace may be required by the wife if her husband corrects her unreasonably.(g) A wife may, on a writ of supplicavit issuing out of chancery, require the husband to find sureties not to beat or ill treat her.(h) 369-372. (c) 1 Hagg. Cons. R. 363; see 1 Black. case, 13 East, 172, n. Comm. 444; ante, pp. (d) Cro. Car. 463. (e) Ayliffe's Parer. 229. (f) i Hawk. P. C. c. 60, s. 4; 4 Black. Comm. 254; Sim's case, 2 Str. 1207; Rex v. Earl Ferrers, 1 Burr. 631; Lord Vane's (g) Moore, 874; Godb. 215; F. N. B. 80. (h) F. N. B. 80, 81; Lord Vane's case, 13 East, 172, no.; see Tomlin's Law Dict. Supplicavit; Com. Dig. Chancery (R. 4) Ib. Forcible Entry (D. 16;) Ex parte King, Ambl. 333; 2 Ves. sen. 578; Beames' Or * Definition of Cruelty.]—It is difficult and hardly safe to define in terms sufficiently clear and comprehensive [ *425 ] what constitutes cruelty in a legal sense; it can only be described generally, and rather by effects produced than by the acts done.(i) The principles upon this subject are satisfactorily laid down by the late Lord Stowell in several adjudged cases, which have been approved by subsequent judges.(k) In the case of Evans v. Evans, Lord Stowell said, "what is cruelty? In the present case it is hardly necessary to define it, because the facts here complained of are such as to fall within the most restricted definition of cruelty. I shall therefore decline laying down a direct definition. The causes must be grave and weighty, and such as show an absolute impossibility that the duties of the married life can be discharged. In a state of personal danger no duties can be discharged, for the duties of self-preservation must take place before the duties of marriage."(1) The same learned judge said, "in the older cases of this sort, danger of life, limb, or health, is usually inserted as the ground upon which the court has proceeded to a separation. The court has never been driven off this ground. It has been always jealous of the inconvenience of departing from it. Proof must be given of a reasonable apprehension of bodily hurt. The court is not to wait till the hurt is actually done; but the apprehension must be reasonable; it must not be an apprehension arising merely from an exquisite and diseased sensibility of mind. Petty vexations, applied to such a constitution of mind, may certainly in time wear out the animal machine; but still they are not cases of legal relief. People must relieve themselves as well as they can by prudent resistance, by calling in the succours of religion, and the consolation of friends; but the aid of courts is not to be resorted to in such cases with any effect."(m) So in [ *426 ] Harris v. Harris, "there must be something that renders cohabitation unsafe, or is likely to be attended with injury to the person or to the health of the party. Words of menace may warrant the court to interpose, and prevent the actual mischief; but when such violence of language is accompanied with blows, it is a more aggravated case."(n) Again, in Waring v. Waring: "The usual principles require that such complaints should be supported by proofs of violence and ill treatment, endangering, or at least threatening, the life, or person, or health, of the complainant."(o) The same doctrine is held in the case of Holden v. Holden: "The court has to decide whether the conduct of the husband amounts to that sævitia which authorises a separation. On this point the court has had frequent ders, 39, pl. 87; Dobbyn's case, 3 Ves. & B. 182; Heyn's case, 2 Ves. & B. 182; Clavering's case, 2 P. Wms. 202; Ex parte Grosvenor, 3 P. Wms. 113. (i) Si maritus fuerit, erga uxorem, crudelis et ferox, ac mortem ei comminatus et machinatus fuerit; vel eam inhumaniter verbis et verberibus tractaverit, et aliquando venenum, loco potûs, paraverit ; vel aliquid simile commiserit, propter quod mulier (sine periculo vita) cum marito cohabitare, aut obsequia conjugalia impendere, non audeat ; mulier agere potest, contra talem virum, in causa (k) 2 Hagg. Eccl. 70. (m) Evans v. Evans, 1 Hagg. Cons. R. 39, 40. (n) 2 Hagg. Cons. R. 154; 2 Phill. 111. (0) 2 Hagg. Cons. R. 154; 2 Phill. 132. occasion to observe that every thing is, in legal construction, sævitia, which tends to bodily harm, and in that manner renders cohabitation unsafe. Whenever there is a tendency only to bodily mischief, it is a peril from which the wife must be protected. It is not necessary to inquire from what 'motive such treatment proceeds; it may be from turbulent passion, or sometimes from causes which are not inconsistent with affection. If bitter waters are flowing, it is not necessary to inquire from what source they spring. If the passions of the husband are so much out of his own control, as that it is inconsistent with the personal safety of the wife to continue in his society, it is immaterial from what provocation such violence originated. Secondly, the law does not require that there should be many acts; for if one act should be of that description, which should induce the court to think that it is likely to occur again, and to occur with real suffering, there is no rule that should restrain it from considering that to be fully sufficient to authorise its interference. Thirdly, it is not necessary that the conduct of the wife should be [ *427 ] entirely without blame; for the reason which would *justify the imputation of blame to the wife will not jus tify the ferocity of the husband."(p) Upon what Principles the Court interposes.]-The general ground upon which the court proceeds in these cases is danger to the life or health of the party and if persons quarrel about matters not affecting the great end of marriage, they must decide them as well as they can in their own domestic forum. There must be ill treatment and personal injury, or the reasonable apprehension of personal injury. What must be the extent of injury, or what will reasonably excite the apprehension, will depend upon the circumstances of each case. So likewise what may aggravate the character of ill treatment must be deduced from various considerations; in some degree from the station of the parties; in some degree from the condition of the person suffering at the time of the infliction of the alleged injury. The complexion of individual acts may be heightened, nay, the acts may almost change their very essence by the accompaniments. Not only particular stations and situations, and the feelings almost necessarily arising out of them, but even acquired feelings may be entitled to some attention.(g) In suits founded on cruelty, the species of facts most generally adduced are, first, personal ill treatment, which is of different kinds, such as blows or bodily injury of any kind; secondly, threats of such a description as would reasonably excite, in a mind of ordinary firmness, a fear of personal injury. For causes less stringent than these, the court has no power to interfere, and separate husband and wife: it is necessity alone which has conferred on the ecclesiastical court that power, and in a regard to self-protection alone must the exercise of that power be guided. Under any other circumstances the court cannot put asunder those whom God has joined. This is the wise and prudent rule; were it otherwise, the time of the court might be 458. 22. (p) Holden v. Holden, 1 Hagg. Cons. R. D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. (9) See 2 Hagg. Eccl. Rep. Suppl. 72; |