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Milling Co., 3 Sup. Ct. 10, 12, 108 U. S. 466, draw ourselves at certain times, when our 27 L. Ed. 789 (citing Seymour v. Osborne, 78 | assistance and co-operation are required, or U. S. (11 Wall.) 516, 20 L Ed. 33.
to separate ourselves from that to which we
ought to be attached.” Pidge v. Pidge, 44 Of mining claim.
Mass. (3 Metc.) 257, 264.
"Deserted,” as used in Rev. St. 1881, $
husband, without cause, abandoned plaintiff under consideration. Black's Law Diction
leaving the wife with the intention of causary defines it as: (1) A delineation or account of a particular subject by a recital of ing a palpable separation, a cessation of co
habitation. The words “deserted” and “abanits characterist accidents and qualities. (2) A written enumeration of items composing
doned” convey the full idea of the act of de
sertion. Carr v. Carr, 33 N. E. 805, 6 Ind. an estate, or of its condition, or of titles or documents, like an inventory, but with more
App. 377. particularity, and without involving the idea The words “deserted her,” as used in an of an appraisement. (3) An exact written agreed statement of facts that a pauper was account of an article, mechanical device, or married to a certain person who deserted process which is the subject of an applica- her, should be construed in their ordinary letion for a patent. (4) A method of pointing gal sense, which means that such person utout a particular person by referring to his terly forsook and abandoned the pauper, and relationship to some other person or his char- quit and left her with a view of not return. acter as an officer, trustee, executor, etc. (5) ing to her. Town of Pittsford v. Town of That part of a conveyance, advertisement Chittenden, 3 Atl. 323, 325, 58 Vt. 49. of sale, etc., which identifies the land in
The intention of a husband to perma-
A "deserter," within the meaning of the so that the affidavit was insufficient. And treaty between the United States and Engthe description as used in Gen. Laws, div. 5, land, authorizing the arrest of deserters from 8 1477, providing that any person who shall English vessels, is one who leaves his vessel discover any mining claim shall make a
without leave, and without intention to redeclaratory statement "describing" such turn. It would describe a seaman who signs claim, means a description of the claim and articles for a voyage, and fails to get on of a discovery or location as well. McCowan board in time to comply with the provisions v. Maclay, 40 Pac. 602, 603, 16 Mont. 234.
of his contract. In re Sutherland (U, S.)
53 Fed. 551, 552. DESERT.
The word “deserter" is generally used to
mean a person who has deserted from the Dr. Johnson says that to "desert" is to United States army. The offense of desertion abandon, to forsake. Crabb, in his book on is one purely of military character, cognizaSynonyms, says that the words “desert," ble only by a court-martial, and hence does “abandon,” and “forsake” are synonymous, not constitute a crime so as to render words and continues: “We 'abandon' those who are charging a person with being a “deserter" entirely dependent for protection and sup- liable to an action of slander without proof port; they are left in a helpless state, ex- of special damage. Hollingsworth v. Shaw, posed to every danger. A child is 'aban- 19 Ohio St. 430, 432, 2 Am. Rep. 411. doned' by his parent. We 'desert' those with whom we have entered into coalition; they are left to their own resources. We for
DESERTION (In Divorce Law). sake' those with whom we have been in hab
See "Obstinate Desertion"; "Utterly Deits of intimacy; they are deprived of the
sert”; “Willful and Malicious Deser. pleasures and comforts of society. To 'aban
tion"; "Willful Desertion." don' is totally to withdraw ourselves from an object; to lay aside all care for it; to leave Desertion is a breach of matrimonial it altogether to itself. To 'desert' is to with-duty, and is composed, first of the actual
breaking off of the matrimonial cohabitation, , sertion. Kikell v. Kikell, 25 Neb. 256, 41 N.
"Desertion,” as used in the Massachu-
contract and distinguishing it from others. Alkire v. Alkire (W. Va.) 11 S. E. 11, 12; than that which secures to her in the marStein v. Stein, 5 Colo. 55, 56.
riage relation the companionship of her husDesertion is an actual abandonment of band and the protection of his home. His matrimonial cohabitation, with an intent to willful denial of this right, with the intendesert, willfully and maliciously persisted in tional and permanent abandonment of all without cause for two years. The guilty in- matrimonial intercourse, against her consent, tent is manifested when, without cause or is “desertion” within the meaning of the consent, either party withdraws from the res- statute. And such conduct is not relieved by idence of the other. Eisenberg v. Eisenberg the fact that from time to time he contributes (Pa.) 18 Wkly. Notes Cas. 146, 148 (citing In- to her support and that of her children. Magersoll v. Ingersoll, 49 Pa. (13 Wright] 249, grath v. Magrath, 103 Mass. 577, 579, 4 Am. 250, 88 Am. Dec. 500); Middleton v. Middle | Rep. 579. ton, 41 Atl. 291, 293, 187 Pa. 612 (citing In
To constitute "desertion,” the deserting gersoll v. Ingersoll, 49 Pa. 249, 88 Am. Dec. 500); Raver v. Raver, 1 Pa. Dist. R. 177, 180. party must forsake the other willfully, in
tending to abandon, and must obstinately conWillful desertion is the voluntary separa- tinue in such state of separation for the stat. tion of one of the married parties from the utory period. Cass v. Cass, 31 N. J. Eq. (4 other, with intent to desert. Rev. Codes Stew.) 626. Nor are both separation and nonN. D. 1899, 2740.
support sufficient. Howell v. Howell, 48 Atl.
N. J. Eq. (8 Stew.) 18, 19.
In our state a "desertion," so as to justi-
Desertion is the voluntary separation of Barnett, 61 N. E. 737, 739, 27 Ind. App. 466. one of the married parties from the other, or See, also, Taylor v. Taylor, 28 N. J. Eq. (1 the voluntary refusal to renew a suspended Stew.) 207.
cohabitation, without justification either in
the consent or wrongful conduct of the other. The term "desertion,” as used in the law Desertion is a willful termination of the of divorce, contemplates a voluntary separa-married relation by one of the married parton of one party from the other, without ties without lawful or reasonable cause, or justification, with the intention of not return- refusal without reasonable cause to renew ing. Williams v. Williams, 130 N. Y. 193, 29 the married relation after the parties have N. E. 98, 14 L. R. A. 220, 27 Am. St. Rep. 517. been separated. Ogilvie v. Ogilvie, 61 Pac.
"Desertion,” under the statute, is the 627, 629, 37 Or. 171. willful abandonment of one party by the
"Desertion,” as used with reference to a other, without cause and against the will of wife, consists in her refusing to live with her the party abandoned, for the period of two husband according to his desire. Newing v. Fears. If the husband's conduct is so cruel towards the wife that she cannot live with Newing, 18 Atl. 166, 45 N. J. Eq. (18 Stew.)
498. bim with safety to her health or without peril to her life, or if she has good reason to "Desertion," as a cause for divorce, exbelieve she cannot, and abandons her home, ists when either party, without cause or conshe does not thereby commit the crime of de- sent, withdraws from the residence of the
other. Bealor v. Hahn, 11 Atl. 776, 117 Pa. Absence. 169.
Mere absence is not desertion. Taylor "Desertion,” within the meaning of the
v. Taylor, 28 N. J. Eq. (1 Stew.) 207; Rogers statute making a willful desertion for three
v. Rogers, 18 N. J. Eq. (3 C. E. Green) 445, years with total neglect a ground of divorce, 446; Howell v. Howell (N. J.) 48 Atl. 510, 511. means, when applied to the husband, the In legal contemplation, there is no "de act of willfully absenting himself from the sertion" by a husband where he is driven by society of his wife, with the intention to con- stress of pecuniary difficulties to absent himtinue to live apart in spite of her wish, and self from his wife and home in an effort to without any intention to return to cohabita- better provide for his family, an intent to tion. It is not alone a specific act, but a con
sever and abandon his domestic relationship tinuing course of conduct. Tirrell v. Tirrell, being necessary to constitute desertion. Wal45 Atl. 153, 72 Conn. 567, 47 L. R. A. 750. ton v. Walton, 25 South. 166, 168, 76 Miss.
662, 71 Am. St. Rep. 540. The word “desertion,” as used in Gen. St. 1878, c. 69, § 5, providing that desertion In the Illinois law of divorce, the terms by husband or wife shall be a ground for an "desertion" and "absence" are treated action to bar the right of curtesy or dower, is synonymous terms, and hence absence is deused in the same sense as in a statute making sertion, as the term "desertion” is used makit a ground for divorce, and imports such a ing such act a ground for divorce. Elzas v. willful abandonment by one party of the Elzas, 49 N. E. 717, 719, 171 III. 632; Fritz other, without any sufficient cause or excuse, v. Fritz, 28 N. E. 1058, 138 Ill. 436, 14 L. R. as constitutes good ground for divorce. It A. 685, 32 Am. St. Rep. 156 (citing Carter v. involves violation of marital duty and obliga- Carter, 62 Ill. 439). tion on the part of the one guilty of the act of desertion, and is therefore wrongful and
As cruel and inhuman treatment. unlawful. Weld v. Weld, 7 N. W. 267, 27
See “Cruelty." Minn. 330.
Although a wife leaves her husband's Nonsupport. house through his fault, yet if he afterwards Nonsupport alone is not sufficient to consincerely solicits her to return, and she de- stitute desertion. Proudlove v. Proudlove (N. liberately and persistently refuses to do so, J.) 46 Atl. 951, 952; Cook v. Cook, 13 N. J. her conduct constitutes “desertion,” within Eq. (2 Beasl.) 263, 264; Howell v. Howell, 48 the meaning of the divorce act. Hooper v.) Atl. 510, 511, 64 N. J. Eq. 191. Hooper, 34 N. J. Eq. (7 Stew.) 93, 97.
Refusal of sexual intercourse. The refusal of the wife to accompany her husband on a change of his residence, follow
Refusal of sexual intercourse does not ed by actual cessation of matrimonial cohabi- constitute desertion. Fritz v. Fritz, 28 N. E. tation, and unattended by any excusing or ex
1058, 138 Ill. 436, 14 L. R. A. 685, 32 Am. St. planatory circumstances, would constitute Rep. 156. sufficient evidence of desertion to authorize a
Desertion "does not signify merely a divorce. Hardenbergh v. Hardenbergh, 14 refusal of matrimonial intercourse, whicb Cal. 654, 657.
would be a breach or violation of a single
conjugal or marital duty or obligation; so Abandonment synonymous.
that mere refusal by a wife of sexual interThe word "desertion," as used in connec
course with her husband for five years contion with the marital relation, is synonymous secutively, though unjustified by considerawith "abandonment.” People v. Crouse, 83 tions of health or physical disability, does N. Y. Supp. 812, 813, 86 App. Div. 352.
not constitute desertion.” Southwick
Southwick, 97 Mass. 327, 329, 93 Am. Dec. 95. “Abandonment” is synonymous with “desertion," as used in a statute making deser
The word "desertion," in reference to tion a cause for divorce. They are different the right to secure a divorce for the deser. words to express the same meaning. Stod- tion of a husband or wife, is used in the dart v. Stoddart (Ill.) 11 Chi. Leg. N. 162. sense of “abandon,” to the extent that the
deserted party must be deprived of all real "Desertion" and "abandonment" are
companionship and every substantial duty used interchangeably. They mean the same thing. It is said that to establish desertion not constituted by the cessation of sexual
which the other owes to him or her, and is three things must be shown: first, cessation
intercourse alone. Anonymous, 28 Atl. 467, of life together; second, the intention not to 468, 52 N. J. Eq. (7 Dick.) 349. resume such relation; and, third, the absence of complainant's consent to separation. Sep The refusal of the wife, without justiaration by mutual consent of husband and fiable cause, to permit her husband to have wife is not desertion of either. State v. We- sexual intercourse with ber during a period ber, 4S Mo. App. 500, 504
of time exceeding two years, is “desertioo*
within the meaning of the law, and fur-, fusal is desertion. If one party deserts the aishes grounds for divorce. Fritts v. Fritts, other before the expiration of the statutory B6 III. App. 31, 37.
period required to make the desertion a
cause of divorce, returns, and offers in good Separation.
faith to fulfill the marriage contract, and soThe term "desertion,” in the law of di- licits condonation, the desertion is cured. vorce, means more than a mere separation. If the other party refuses such offer and conDavis v. Davis (N. J.) 30 Atl. 20; Middleton donation, the refusal shall be deemed and v. Middleton, 41 Atl. 291, 293, 187 Pa. 612; treated as desertion by such party from the Proudlove v. Proudlove (N. J.) 46 Atl. 951, time of refusal. The husband may choose 952; Loux v. Loux, 41 Atl. 358, 359, 57 n. any reasonable place or mode of living, and J. Eq. 561; Ingersoll v. Ingersoll, 49 Pa. (13 if the wife does not conform thereto it is Wright) 249, 251, 88 Am. Dec. 500; Warner desertion. If the place or mode of living v. Warner, 20 N. W. 557, 558, 54 Mich. 492. selected by the husband is unreasonable and
grossly unfit, and the wife does not conform Separation is not desertion. Desertion is thereto, it: is desertion on the part of the an actual abandonment of matrimonial co-husband from the time her reasonable objecba bitation, with an intent to desert, willfully tions are made known to him. Civ. Code and maliciously persisted in, without cause, Mont. 1895, 88 136–142. for two years. The guilty intent is manifested when, without cause or consent, either
Same-Compulsory. party withdraws from the residence of the other. Ingersoll v. Ingersoll, 49 Pa. (13
Cruelty, on the part of either spouse,
carried to such an extent as to drive the Wright) 249, 251 (approved in Eisenberg v.
other from home, will constitute desertion on Eisenberg, 1 Pa. Co. Ct. R. 590, 593).
the part of the spouse inflicting such cruelty. A separation between husband and wife Barnett v. Barnett, 61 N. E. 737, 739, 27 implies the consent of both parties, and is Ind. App. 466. not synonymous with "desertion,” the very idea of which is to leave without consent of
To render the withdrawal of a wife the other, and in violation of duty. Stod- from the house of the husband such an abandart v. Stoddart (I11.) 11 Chi. Leg. N. 162.
donment as to constitute a “desertion" in
legal estimation, it must appear that she left In a prosecution for perjury, defendant her husband and remained away from him was charged with having sworn in a divorce of her own accord, without his consent and suit that his wife had willfully deserted against his will, for the full statutory period. bim. His testimony was that they separated; The abandonment is not voluntary where it that she refused to return. It was contend. is compelled by personal violence, coarse ed that the jury should have been instructed language, and constant neglect; and such an as to the difference between "separation” abandonment cannot be made the ground of and “desertion,” and that a defendant in- i divorce. Meldowney v. Meldowney, 27 N. J. dicted for perjury, who swore that his wife' Eq. (12 C. E. Green) 328, 329. was guilty of desertion, cannot be convicted by proof that defendant swore that himself The leaving and abandoning of a husand his wife separated. It was held that ; band's home by the wife when his conduct the wife testified that the separation was and cohabit with him with safety to her because of her absolute refusal to live with health, or without peril to her life, or if her husband, or to come where he was after she has good reason to believe she cannot, he bad left his former home, there being no does not constitute desertion. In such case distinction between a separation accompa- , she does not leave her husband or her home nied by such refusal, and the statutory defi- in consequence of any willfulness on her nition of "desertion.” Hereford v. People, part, but is compelled by the cruelty of her 64 N. E. 310, 316, 197 III. 222.
husband, and against her will, so to do. The
desertion in such case is on his part, and Departure or absence of one party from not on hers. He as completely commits the the family dwelling place, caused by cruelty crime of “desertion” when by his cruel conor threats of bodily harm, from which dan- versation and conduct he compels her, for ger would be reasonably apprehended from the other, is not desertion by the absent safety, to leave him and his home, as when
he willfully and without cause leaves and party. Separation by consent with or without the understanding that one of the parties w. 557, 558, 54 Mich. 492.
abandons her. Warner V. Warner, 20 N. will apply for a divorce, is not desertion. Absence or separation, proper in itself, be- The marriage contract does not furnish comes desertion whenever the intent to de- an absolute guaranty to the wife that the Bert is fixed during such absence or separa- husband shall at all times be able to relieve tion. Consent to a separation is a revocable her from all efforts to support the family, and act, and if one of the parties afterwards separation attributable to the husband's inin good faith seeks a reconciliation and res- ability to earn support for the wife does not toration, but the other refuses it, such reconstitute a desertion entitling her to a
such instruction was not necessary, since towards her is so cruel that she cannot live
divorce. Bennett v. Bennett, 43 Conn, 313,, sincerely sought, or, in other words, from 818.
the period when the mutual acquiescence in
the separation is put to an end by the overSame-By mutual consent.
tures of one of the parties. Hankinson v. A mere separation by mutual consent is Hankinson, 33 N. J. Eq. (6 Stew.) 66, 70. not desertion by either party. Latham v. Latham (Va.) 30 Grat. 307, 321; Alkire v. DESERTION (In Maritime Law). Alkire (W. Va.) 11 S. E. 11, 12; Barnett v. Barnett (Ind.) 61 N. E. 737, 739. "Deser- “Desertion is, by the law maritime, an tion,” as applied to a severance of the re unlawful and willful abandonment of a veslations between husband and wife, means sel, during her voyage, by her crew, withthe absenting of one of the spouses from out an intention of returning to their duty. the other against the will of such other; It is not a mere unauthorized absence from hence if a married woman left her husband the ship without leave." The Union (U. S.) with his consent and remained away, that 24 Fed. 537, 539. was not desertion, but merely a voluntary
“ 'Desertion,' in the sense of the maritime separation. Lea v. Lea, 90 Mass. (8 Allen) 418, 419.
law, means, not a mere unauthorized absence
from a ship without leave, but an unauthorA separation by mutual consent cannot ized leaving or absence from a sbip with an be desertion; neither can desertion be in- intention not to return to the service, or, as ferred against either from the mere unaided it is often expressed, animo non revertendi; fact of their not living together, though pro- that is, with an intention to desert.” Coffin tracted absence, with other circumstances, v. Jenkins (U. S.) 5 Fed. Cas. 1188, 1190; may establish the original intent. If the Per Story, J., in Cloutman v. Tunison (U. husband, after deserting his wife, repentsS.) 5 Fed. Cas. 1091, 1093. and offers to return, and she rejects his proposal, the statutory period having elapsed,
Desertion' is the quitting of a vessel by a this, at the date of the refusal, becomes de seaman, not only without leave or permissertion by the wife. A desertion ends with sion, but without justifiable cause, and with the determination of the intent to desert. It the intent not to return again to the ship's ends when the erring party offers to return duty. The Mary C. Conery (U. S.) 9 Fed. 222, and is prevented by the other party. The 223. very idea of a "desertion" is to leave with
“Desertion" by a sailor, during a voyage, out the consent of the other, and is not such as will work a forfeiture of all wages synonymous with "separation,” for a sep- previously due, must be, not merely an abaration implies consent of both parties to sence without leave or in disobedience of orbe affected thereby. "Desertion” and “aban-ders, but a desertion with an intention to donment" are different words to express the
abandon the ship; and it, after desertion, a same thing. The word "desert" means to
seaman offers to return to duty in a reasonpart from, to end a connection with, to for- able time, and offers umends and repents of sake, to abandon, to leave without permis- the offense, the master is bound to receive sion, to forsake in violation of duty. Stod- him back, unless his previous misconduct dart v. Stoddart (III.) 11 Chi. Leg. N. 162.
would justify a discharge. The George (U. Where a wife left her husband at his S.) 10 Fed. Cas. 201, 204, suggestion, and there was subsequent corre spondence in which both parties suggested
DESERVING. conditions for a return, though no satisfactory agreement was reached, the separation
The word "deserving," as used in a will would not justify the granting of a divorce, giving the surplus of testator's estate, after Middleton v. Middleton, 41 Atl. 291, 293, 187 payment of legacies, to be distributed to such Pa. 612.
persons, societies, or institutions as the execA divorce on the ground of desertion utors might consider most deserving, denotes will not be granted where the parties have worth or merit, without regard to condition met in friendly relations within two years or circumstance, and is in no sense of the of the filing of the petition, and defendant word limited to persons in need of assistwithin that time has given plaintiff money ance, or to objects which come within the and repeatedly requested her to live with class of charitable uses. Nichols V. Allen, him. Davis v. Davis (N. J.) 30 Atl. 20. 130 Mass. 211, 218, 39 Am. Rep. 445.
The voluntary separation of a husband In a will bequeathing property to selectand wife for mutual dislike, incompatibility men in trust for the special benefit of the of temper, incongeniality, or other cause, worthy, deserving poor of a certain town, however long continued, will not constitute the phrase "worthy, deserving poor” was not "desertion" on either side, within the meaning an indeterminate and uncertain one, but one of a statute authorizing divorce therefor. which the selectmen might well determine. It will become a desertion, however, from the Beardsley v. Selectmen of Bridgeport, 3 Atl. time when a renewal of the marriage ties is 557, 558, 53 Conn. 489, 55 Am. Rep. 132.