In a case where there had been neither consummation nor cohabitation of the parties since the marriage was solemnized, the validity of which was questioned, Sir H. Jenner said, assuming the alleged marriage to be valid, the husband would have a right to claim the consortium of his wife, and if she refused to cohabit with him, he would be entitled to institute a suit in the ecclesiastical courts, not for the purpose of compelling her to return to cohabitation in his house, (for into his house she had never entered as his wife,) but to afford him the consortium vitæ, which she had withheld from him by his own consent from the day of the marriage down to that time.(e) What Questions are involved in these Suits.]-Suits for the restitution of conjugal rights involve all the questions which can arise not only upon the legality of the marriage but also upon the collateral question whether the husband or the wife has by adultery or cruelty, or infamous conduct, forfeited the matrimonial rights, and the ultimate decree will depend on these circumstances.(f) By the practice of the ecclesiastical courts a matrimonial suit frequently changes its original object, and this even on a collateral ground. Thus in a suit against a woman for jactitation of marriage, if she plead that she and the complainant were duly married, and she establish the fact, the sentence will be restitution of conjugal rights.(g) And in a suit by a wife for restitution of conjugal rights, if the husband in defence or excuse allege the adultery of the wife, he may in that very suit pray and proceed for a divorce on the latter ground.(h) A suit for restitution of conjugal rights may assume the shape of a suit of nullity of marriage, as where it was asserted in the plea that the alleged marriage was not conformable to the lex [ *576 ] loci.(i) Mode of Proceeding.]—In a suit for restitution of conjugal rights, a citation issues under the seal of the ecclesiastical court, claiming jurisdiction, or a decree (by letters of request) from the Arches Court, at the suit of the plaintiff, calling upon the defendant to render conjugal rights. Upon a personal service having been effected, and the citation returned, and an appearance given, a libel is brought into court, pleading that the parties being free from matrimonial engagements, A. B. paid his court in the way of marriage to C. D. the marriage, when, where, and the entry thereof in the register book of the parish wherein they were married, a copy of which entry is annexed to the libel, the living and cohabiting together, and passing as man and wife, and birth of children (if any ;) the ceasing and refusal of one of the parties to cohabit, and the jurisdiction of the court; and concludes by praying that the marriage may be pronounced for, and the party offending render conjugal rights. The defendant as a bar may, by responsive allegation, plead cruelty or adultery, (if the facts are so,) and if either be established, the suit may, as we have seen, terminate in a decree of divorce.(k) But if no such answer be advanced, then, after the libel has been admitted, the defendant is required to give an answer thereto; should it be in the affirmative, the party offending is (e) Ray v. Sherwood, 1 Curteis, 198. See Nokes v. Milward, 2 Addams, 398. (f) 1 Chitty's Pr. 789. (g) Hawke v. Corri, 2 Hagg. C. R. 285, 6. (h) Lambert v. Lambert, 1 Curteis, 6; Chitty's Pr. 462. (i) Swift v. Swift, 4 Hagg. Eccl. R. 153. (k) Ante, p. 574. admonished and directed by the judge to render conjugal rights; should the answer however be in the negative, witnesses are examined, and upon publication of the evidence, and no allegation excepting to the testimony of any of them be given, the judge hears the cause and passes sentence; and presuming such sentence to be favourable to the complaining party, he directs the defendant to render conjugal rights, and decrees a monition to issue to that effect; and if the defendant, after personal service of such monition, treat the order of the court with contempt or neglect to conform, the judge, upon notice having been given to the defendant, will pronounce him contumacious, and direct such contempt to be signified; upon [*577 ] which a writ de contumace capiendo for taking the defend ant into custody issues from the court of chancery.(1) Facts pleadable in Bar.]-The facts pleadable in bar to a suit for restitution of conjugal rights, are such only as upon proof will entitle the party who pleads them to a sentence of separation, such sentence being prayed. No facts are sufficient to bar the proceeding, except such as would have been sufficient ground for a divorce in an original suit.(m) The only lawful cause for withdrawing from cohabitation is the cruelty or adultery of the other party, for the court can take no cognizance of disputes about property or mutual agreements to live separate.(n) Adultery may be pleaded by the defendant in a suit for restitution of conjugal rights, and if proved, may be the foundation of a sentence of divorce.(0) In a suit for restitution of conjugal rights brought by the wife, a separation was decreed where the husband pleaded her adultery, proved gross impropriety of conduct, absence from home (unaccounted for) on two nights, letters from her containing admissions of guilt, and endeavours to induce individuals to give false representations where she slept.(p) Though in a suit for separation on account of the wife's adultery, the wife will be entitled to her dismissal on the ground of the husband's connivance at her incest, with his brother, it does not necessarily follow that in a suit for restitution of conjugal rights the court will compel the husband to return to an incestuous bed. (q) It seems that the wife's incontinence in her single state may be pleaded by the husband in answer to the wife's libel in a suit for restitution of conjugal rights. (r) A suit for restitution of conjugal rights may be met by a plea of cruelty, or by a plea of adultery and cruelty set up on the part of the wife, with a prayer for separation, and when clearly proved, is a sufficient bar to the suit, and will entitle the wife to a [ *578 ] sentence of separation:(s) for the court will not enforce the discharge of conjugal duties where the wife's personal safety is endangered;(t) where she is exposed to a repetition of acts of personal injury on account of the passions of the husband being so much out of his own control that it is inconsistent with her personal safety to continue in his society.(u) The husband may give in a respon (1) 2 Chitty's Pr. L. 487. (m) Holmes v. Holmes, 2 Lee, 116. (p) Owen v. Owen, 4 Hagg. Eccl. R. 261. (9) Denniss v. Denniss, 3 Hagg. Eccl, R. 353, n., 348, n. (r) Perrin v. Perrin, 1 Addams, 4. (8) 1 Hagg. Cons. R. 361; 2 Hagg. Eccl. R. Suppl. 65; 3 Ib. 618. (t) Ib. 458. (u) 2 Hagg. Eccl. R. Suppl. 129. sive allegation, setting up condonation, and the wife a second allegation, explanatory of matters contained in the responsive allegation.(w) The parties shortly after marriage separated, and a few months after the wife instituted a suit for restitution of conjugal rights, and the husband was assigned to take her back and treat her with conjugal affection, and he submitted to the decree of the court. The wife subsequently instituted a suit for a separation by reason of cruelty. A suit for restitution of conjugal rights strongly infers that at the time of instituting such suit the party had no reasonable ground to apprehend personal violence; but it does not amount to an absolute bar to a sentence of separation for antecedent cruelty, a fortiori it would not exclude the wife from pleading acts of harshness and severity previous to such suit in conjunction with acts of cruelty subsequently.(x) If a wife, proceeding against her husband for cruelty and adultery, was not originally justified in withdrawing from cohabitation, the court must pronounce her under the obligation to return. (y) In answer to a suit for restitution of conjugal rights brought by the husband, legal cruelty, being established, but a reconciliation and matrimonial intercourse having afterwards taken place, the court enjoined the wife to return to cohabitation, holding that there was no proof of subsequent misconduct by the husband, sufficiently removing the bar of condonation and reviving the previous cruelty, to entitle the wife to a sentence of separation.(z) Where the wife is acting [ *579 ] *on the defensive in this suit, pleading cruelty and adultery, she is not relieved from the proof of the necessary facts; yet under such circumstances the inference arising from facts, when established, may be stronger than where she is the original complainant; thus, where a suit for the restitution of conjugal rights is promoted by the husband, the wife is not, according to the practice and doctrine of the ecclesiastical courts, held precisely to the same strictness of proof of cruelty or adultery as is necessary where the party making such charges is the original complainant. (a) An allegation responsive to the libel of the husband in a suit for the restitution of conjugal rights was admitted to proof although the facts pleaded amounted to a charge of neither cruelty nor adultery against the husband. The principal facts were that the husband's permanent domicile was in Ireland, and that the wife being in England was incapable of removing to Ireland, or undertaking any considerable journey, without imminent danger to her health. The court however could not pledge itself to the effect of the facts pleaded as a bar, either wholly or in part, to the sentence prayed, on behalf of the husband, in the libel, at the final hearing of the cause. (b) Suit not barred by Lapse of Time.]-The long discontinuance of cohabitation is not alone a bar to this suit. In Mordaunt v. Mordaunt,(c) in a suit for restitution of conjugal rights, in the year 1794, (w) Bramwell v. Bramwell, 3 Hagg. Eccl. R. 618. Eccl. R. Suppl. 1. R. 619. (a) Bramwell v. Bramwell, 3 Hagg. Eccl. (b) Molony v. Molony, 2 Addams, 249. (c) 1st June, 1794, cited 1 Hagg. Cons. R. 135, n. (x) Neeld v. Neeld, 4 Hagg. Eccl. R. 268. (y) D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. 784; 1 Hagg. Cons. R. 153. (z) Westmeath v. Westmeath, 2 Hagg. the libel pleaded the marriage on the 27th Feb. 1759, the desertion of the husband in April following, that he left Ireland and came to England, where he remained concealed from the wife till he was lately discovered, when being required to receive his wife he refused: on an objection to pleading desertion at such a distance of time, the court said it knew of no limitation of time. There was none imposed by statute, or by any rule which the court had laid down for itself. It was not in its power to refuse relief on that ground, the libel was therefore admitted. Deeds of Separation.]-We have already seen that deeds of separation are no bar to a suit for divorce by reason of *adul [ *580 ] tery.(d) It has not been the practice of the ecclesiastical courts to consider agreements that the husband will not sue for a restitution of conjugal rights as affecting in any way the legal relation of the parties. Deeds of separation cannot be pleaded in the ecclesiastical courts as a bar to its further proceedings; for that court considers a private separation as an illegal contract, implying a renunciation of stipulated duties a dereliction of those mutual offices which the parties are not at liberty to desert-an assumption of a false character in both parties, contrary to the real status persona, and to the obligations which both of them have contracted in the sight of God and man to live together" till death do them part," and on which the solemnities both of civil society and of religion have stamped a binding authority, from which the parties cannot release themselves by any private act of their own, or for causes, which the law itself has not pronounced to be sufficient, and sufficiently proved. The ecclesiastical courts have uniformly rejected such covenants as insignificant in a plea in bar, and leave it to other courts to enforce them so far as they may deem proper, upon a more favourable view (if they entertain it) of their consistency with the principles of the matrimonial contract. As a plea in bar the court will reject it, although such a deed as explanatory of the conduct of the parties may be very material.(e) In a case in the house of lords, Lord Brougham said, the strongest articles of agreement for separation, drawn up and signed with the full acquiescence of husband and wife, will not prevent them suing each other. It is at most a mere temporary arrangement, a permission to live elsewhere, not affecting legal domicile or any other condition inherent in the relation of husband and wife. One may pledge himself not to claim or institute a suit for conjugal rights, but he cannot be bound by any such pledge, for it is against the inherent condition of the married state as well as against public policy.(f) In Smith v. Smith, (g) in a suit by the husband for restitution of conjugal *rights, the [ *581 ] wife pleaded articles of separation, with a clause that the husband should not proceed in the ecclesiastical court. This plea however was overruled, and Dr. Wynne observed, "that he believed it was the first time the question had come directly before it, and was surprised that it should be brought forward." In another case, in a (d) Ante, pp. 417-419. (e) Mortimer v. Mortimer, 2 Hagg. Cons. R. 318. (f) Warrender v. Warrender, 2 Clark & Finn. 561, 562. (g) Consistory, 1781, cited 2 Hagg. Eccl. R. 44, n.; Nash v. Nash, 1 Hagg. Cons. R, 142. suit for restitution by the husband, the same point was raised and decided on the authority of the former case. The principle of these decisions has been acted on in subsequent cases.(h) Where a deed of separation recited that the husband, at the particular instance and at the sole desire of the wife, agreed to live separate and apart from her, and to allow such separate maintenance and yearly provision for her and her child as was thereinafter mentioned: and then followed the provision and the usual covenants, that she should live apart unmolested, and that she should bring no suit or process to compel her cohabitation. Sir J. Nicholl observed, "as a deed of separation upon mutual agreement on account of unhappy differences, though containing a covenant not to bring a suit for restitution of conjugal rights, these articles would offer no impediment to the husband's present suit (for restitution of conjugal rights,) but as evidence against him, necessarily implying a confession of ill usage subsequent to the condonation, they appear unanswerable, and are a strong acknowledgment that the casus fæderis had occurred. On that confession alone, coupled with the character of his temper and former acts, if the case had even rested here-if the parties had never met after the execution of that deed, I should have entertained considerable doubt whether the husband was entitled to the aid of the court to compel his wife to return, whether the court would not at least dismiss the wife. It would be a new case, and at present I give no opinion upon it, as it may be unnecessary to solve it; the full discussion of the point would be inconvenient among the mass of matter which composes the present suit, at all events it is proper first to examine the remainder of this painful history."(i) The deed however was not the only evidence of the subsequent ill usage. *Sentence of the Court.]-The sentence of the court usually enjoins the husband to receive his wife home in [ *582 ] that character, and to treat her with conjugal affection, and to certify to the court that he has done so within a time fixed by the court.(k) The consequences of a non-compliance with a decree of the court is excommunication and imprisonment.() Though it may be thought hard to send a wife back to a husband who has given proof of alienated affections by deserting her, yet the court does not send her back without due care for her reception; for the monition is not only that he shall take her back, but that he shall treat her with conjugal kinduess; and though the court cannot interfere in the minute details of family life, for much must be left to the consciences of individuals, yet the court will see its monitions so far obeyed that the great obligation of conjugal duty shall be complied with.(m) When a husband, who has been sued successfully for restitution, certifies as usual, in order to his dismissal, that he has taken his wife home and treated her with conjugal affection, the wife may be heard in objection to such certificate, and on proof that, though she has been taken home, the husband at home has not treated her with "conjugal affection," (h) Fletcher v. Fletcher, Consis. 1786, R. 119. cited 2 Hagg. Eccl. R. 44. (i) Westmeath v. Westmeath, 2 Hagg. Eccl. R. App. 115. (k) 2 Hagg. Cons. R. 137; 1 Hagg. Cons. (1) 3 Hagg. Eccl. R. 635; see ante, p. 495. (m) Evans v. Evans, 1 Hagg. Cons. R. 119, 120. |