Ingersoll v. Ingersoll ( 1865 )

Per Curiam.

The neglect of the husband to provide for his wife, as he was bound to do, and his acquiescence in her leaving him to seek from her kinsfolk the support which he owed her, are fully established in -the proofs, but evidence is wholly wanting of that ‘ ‘ wilful and malicious desertion and absence from the habitation of the wife, without a reasonable cause for and during the term and space of two years,” which is necessary under our statute to support her libel for a divorce.

Separation is not desertion. Desertion is an actual abandonment of matrimonial cohabitation, with an intent to desert, wilfully and maliciously persisted in, without cause, for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other.

We see no evidence of such intent here. Instead of the husband’s desertion, she left him, with his consent to be sure, and for the best of reasons, and so was not, herself, guilty of desertion, but if her voluntary withdrawal was not desertion on her part, much less can it be considered as desertion on his part.

He ceased to write her letters, but neglect to answer letters is not desertion. Poverty, idleness, unthriftiness, are great evils when they drive a wife into separation from her husband, but they must not be mistaken for the high crime of malicious desertion.

Unable to find satisfactory eyidence to support the libel, the decree dismissing it must be

Affirmed.