Milling Co., 3 Sup. Ct. 10, 12, 108 U. S. 466, 27 L. Ed. 789 (citing Seymour v. Osborne, 78 U. S. (11 Wall.) 516, 20 L. Ed. 33.

Of mining claim.

A description is a sketch or account of anything in words; a portraiture or representation in language. It is a representation by visible lines, marks, colors, etc.; the act of representing a thing by words or signs, or the account or writing containing such representation; and, as used in conveyances of real estate and in legal instruments in writing, it is the language which depicts the thing

draw ourselves at certain times, when our assistance and co-operation are required, or to separate ourselves from that to which we ought to be attached." Pidge v. Pidge, 44 Mass. (3 Metc.) 257, 264.

"Deserted," as used in Rev. St. 1881, § 5132, providing that a married woman may obtain provision for the support of herself and infant children where the husband shall have deserted his wife and children without cause, conveys the same idea as the word "abandoned," in a pleading alleging that the and children. That is an act of willfully husband, without cause, abandoned plaintiff leaving the wife with the intention of causing a palpable separation, a cessation of codoned" convey the full idea of the act of desertion. Carr v. Carr, 33 N. E. 805, 6 Ind. App. 377.

habitation. The words "deserted" and "aban

The words "deserted her," as used in an agreed statement of facts that a pauper was married to a certain person who deserted her, should be construed in their ordinary legal sense, which means that such person utterly forsook and abandoned the pauper, and quit and left her with a view of not returning to her. Town of Pittsford v. Town of Chittenden, 3 Atl. 323, 325, 58 Vt. 49.

under consideration. Black's Law Diction-
ary defines it as: (1) A delineation or ac-
count of a particular subject by a recital of
its characteristic accidents and qualities. (2)
A written enumeration of items composing
an estate, or of its condition, or of titles or
documents, like an inventory, but with more
particularity, and without involving the idea
of an appraisement. (3) An exact written
account of an article, mechanical device, or
process which is the subject of an applica-
tion for a patent. (4) A method of pointing
out a particular person by referring to his
relationship to some other person or his char-
acter as an officer, trustee, executor, etc. (5)
That part of a conveyance, advertisement
of sale, etc., which identifies the land in-
tended to be affected. And hence, as used in
a verification to a declaratory statement of a
mining claim that the "description" of said
lode as given in the location notice is true
and correct, it meant merely the delineation
or account of the mining claim by the recital
of its metes and bounds, or courses and dis- DESERTER.
tances, and its geographical position, and
did not refer to the whole location notice,
so that the affidavit was insufficient. And

the description as used in Gen. Laws, div. 5,
§ 1477, providing that any person who shall
discover any mining claim shall make a
declaratory statement "describing" such
claim, means a description of the claim and
of a discovery or location as well. McCowan
v. Maclay, 40 Pac. 602, 603, 16 Mont. 234.

DESERT.

Dr. Johnson says that to "desert” is to abandon, to forsake. Crabb, in his book on Synonyms, says that the words "desert," "abandon," and "forsake" are synonymous, and continues: "We 'abandon' those who are entirely dependent for protection and support; they are left in a helpless state, exposed to every danger. A child is 'abandoned' by his parent. We 'desert' those with whom we have entered into coalition; they are left to their own resources. We 'forsake' those with whom we have been in habits of intimacy; they are deprived of the pleasures and comforts of society. To 'abandon' is totally to withdraw ourselves from an object; to lay aside all care for it; to leave it altogether to itself. To 'desert' is to with

The intention of a husband to permanently separate himself from his wife would be, in a legal phrase, an "intention to desert her." Whinyates v. Whinyates (N. J.) 41

Atl. 363.

A "deserter," within the meaning of the treaty between the United States and England, authorizing the arrest of deserters from English vessels, is one who leaves his vessel without leave, and without intention to return. It would describe a seaman who signs articles for a voyage, and fails to get on board in time to comply with the provisions of his contract. In re Sutherland (U. S.) 53 Fed. 551, 552.

The word "deserter" is generally used to mean a person who has deserted from the United States army. The offense of desertion is one purely of military character, cognizable only by a court-martial, and hence does not constitute a crime so as to render words charging a person with being a "deserter" liable to an action of slander without proof of special damage. Hollingsworth v. Shaw, 19 Ohio St. 430, 432, 2 Am. Rep. 411.

DESERTION (In Divorce Law).

See "Obstinate Desertion"; "Utterly Desert"; "Willful and Malicious Desertion"; "Willful Desertion."

Desertion is a breach of matrimonial duty. and is composed, first of the actual

breaking off of the matrimonial cohabitation, sertion. Kikell v. Kikell, 25 Neb. 256, 41 N. and, secondly, an intent to desert in the mind W. 180 (citing Warner v. Warner, 20 N. W. of the offender; and both must combine to 558, 54 Mich. 492). make the desertion complete. Bailey ▼. Bailey (Va.) 21 Grat. 43, 47; Morrison v. Morrison, 20 Cal. 431, 432; Latham v. Latham (Va.) 30 Grat. 307, 320; Gill v. Gill (Md.) 49 Atl. 557, 558; Harris v. Harris (Va.) 31 Grat. 13, 28; Burk v. Burk, 21 W. Va. 445, 450; Alkire v. Alkire (W. Va.) 11 S. E. 11, 12; Stein v. Stein, 5 Colo. 55, 56.

Desertion is an actual abandonment of matrimonial cohabitation, with an intent to desert, willfully 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. Eisenberg v. Eisenberg (Pa.) 18 Wkly. Notes Cas. 146, 148 (citing Ingersoll v. Ingersoll, 49 Pa. [13 Wright] 249, 250, 88 Am. Dec. 500); Middleton v. Middleton, 41 Atl. 291, 293, 187 Pa. 612 (citing Ingersoll v. Ingersoll, 49 Pa. 249, 88 Am. Dec. 500); Raver v. Raver, 1 Pa. Dist. R. 177, 180.

Willful desertion is the voluntary separation of one of the married parties from the other, with intent to desert. Rev. Codes N. D. 1899, § 2740.

"Desertion," as used in the Massachusetts divorce law, is an abnegation on the part of the husband of all the chief duties and obligations resulting from the marriage There is no more important right of the wife contract and distinguishing it from others. 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" within the meaning of the statute. And such conduct is not relieved by the fact that from time to time he contributes to her support and that of her children. Magrath v. Magrath, 103 Mass. 577, 579, 4 Am. Rep. 579.

To constitute "desertion," the deserting party must forsake the other willfully, intending to abandon, and must obstinately continue in such state of separation for the statutory period. Cass v. Cass, 31 N. J. Eq. (4 Stew.) 626. Nor are both separation and nonsupport sufficient. Howell v. Howell, 48 Atl.

Desertion, in the law of divorce, is the 510, 511, 64 N. J. Eq. 191. 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 consent or wrongful conduct of the other. Droege v. Droege, 55 Mo. App. 481, 482.

In Schouler on Husband and Wife, § 516, it is said: "According to the latest authorities, it may be laid down that legal desertion, in the present sense of our divorce acts, imports three things: (1) An actual cessation of cohabitation for the period specified; (2) the willful intent of the absent spouse to desert; (3) desertion by that spouse against the will of the other. Unless these three things concur, there is no legal desertion established such as to justify a divorce." Barnett v. Barnett, 61 N. E. 737, 739, 27 Ind. App. 466. See, also, Taylor v. Taylor, 28 N. J. Eq. (1 Stew.) 207.

The term "desertion," as used in the law of divorce, contemplates a voluntary separation of one party from the other, without justification, with the intention of not returning. Williams v. Williams, 130 N. Y. 193, 29 N. E. 98, 14 L. R. A. 220, 27 Am. St. Rep. 517. "Desertion," under the statute, is the willful abandonment of one party by the other, without cause and against the will of the party abandoned, for the period of two years. If the husband's conduct is so cruel towards the wife that she cannot live with him with safety to her health or without peril to her life, or if she has good reason to believe she cannot, and abandons her home, she does not thereby commit the crime of de

To constitute a "desertion," there must be an abandonment against the will of the abandoned party, and persisted in for the statutory period, or what is equivalent to such abandonment. Plimley v. Plimley, 35 N. J. Eq. (8 Stew.) 18, 19.

In our state a "desertion," so as to justify a divorce, must be a willful and obstinate purpose in the wife to abandon her husband and not associate herself with him, and if, during the period, she manifests a disposi tion to resume their relations, the continuity of the period of desertion, which is absolutely essential, fails. Loux v. Loux, 41 Atl. 358. 359, 57 N. J. Eq. 561.

Desertion 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 consent or wrongful conduct of the other. Desertion is a willful termination of the married relation by one of the married parties without lawful or reasonable cause, or refusal without reasonable cause to renew the married relation after the parties have been separated. Ogilvie v. Ogilvie, 61 Pac. 627, 629, 37 Or. 171.

"Desertion," as used with reference to a

wife, consists in her refusing to live with her husband according to his desire. Newing v. Newing, 18 Atl. 166, 45 N. J. Eq. (18 Stew.)

498.

"Desertion," as a cause for divorce, exists when either party, without cause or consent, withdraws from the residence of the

86 Ill. App. 31, 37.

Separation.

within the meaning of the law, and fur-, fusal is desertion. If one party deserts the nishes grounds for divorce. Fritts v. Fritts, other before the expiration of the statutory period required to make the desertion a cause of divorce, returns, and offers in good faith to fulfill the marriage contract, and solicits condonation, the desertion is cured. If the other party refuses such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal. The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto it is desertion. If the place or mode of living selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him. Civ. Code Mont. 1895, §§ 136–142.

The term "desertion," in the law of divorce, means more than a mere separation. Davis v. Davis (N. J.) 30 Atl. 20; Middleton v. Middleton, 41 Atl. 291, 293, 187 Pa. 612; Proudlove v. Proudlove (N. J.) 46 Atl. 951, 952; Loux v. Loux, 41 Atl. 358, 359, 57 N. J. Eq. 561; Ingersoll v. Ingersoll, 49 Pa. (13 Wright) 249, 251, 88 Am. Dec. 500; Warner v. Warner, 20 N. W. 557, 558, 54 Mich. 492.

Separation is not desertion. Desertion is an actual abandonment of matrimonial cohabitation, with an intent to desert, willfully 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. Ingersoll v. Ingersoll, 49 Pa. (13 Wright) 249, 251 (approved in Eisenberg v. Eisenberg, 1 Pa. Co. Ct. R. 590, 593).

A separation between husband and wife implies the consent of both parties, and is not synonymous with "desertion," the very idea of which is to leave without consent of

the other, and in violation of duty. Stoddart v. Stoddart (Ill.) 11 Chi. Leg. N. 162.

In a prosecution for perjury, defendant was charged with having sworn in a divorce suit that his wife had willfully deserted him. His testimony was that they separated; that she refused to return. It was contended that the jury should have been instructed as to the difference between "separation" and "desertion," and that a defendant indicted for perjury, who swore that his wife was guilty of desertion, cannot be convicted by proof that defendant swore that himself and his wife separated. It was held that such instruction was not necessary, since the wife testified that the separation was because of her absolute refusal to live with her husband, or to come where he was after he had left his former home, there being no distinction between a separation accompanied by such refusal, and the statutory definition of "desertion." Hereford v. People, 64 N. E. 310, 316, 197 III. 222.

Same-Compulsory.

Cruelty, on the part of either spouse, carried to such an extent as to drive the other from home, will constitute desertion on the part of the spouse inflicting such cruelty. Barnett v. Barnett, 61 N. E. 737, 739, 27 Ind. App. 466.

To render the withdrawal of a wife

from the house of the husband such an aban

donment as to constitute a "desertion" in legal estimation, it must appear that she left her husband and remained away from him of her own accord, without his consent and against his will, for the full statutory period. The abandonment is not voluntary where it is compelled by personal violence, coarse language, and constant neglect; and such an abandonment cannot be made the ground of divorce. Meldowney v. Meldowney, 27 N. J. Eq. (12 C. E. Green) 328, 329.

The leaving and abandoning of a husband's home by the wife when his conduct towards her is so cruel that she cannot live and cohabit with him with safety to her health, or without peril to her life, or if she has good reason to believe she cannot, does not constitute desertion. In such case she does not leave her husband or her home in consequence of any willfulness on her part, but is compelled by the cruelty of her 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 party. Separation by consent with or without the understanding that one of the parties 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 sert is fixed during such absence or separa-husband shall at all times be able to relieve tion. Consent to a separation is a revocable act, and if one of the parties afterwards in good faith seeks a reconciliation and restoration, but the other refuses it, such re

safety, to leave him and his home, as when he willfully and without cause leaves and abandons her. Warner v. Warner, 20 N. W. 557, 558, 54 Mich. 492.

her from all efforts to support the family, and separation attributable to the husband's inability to earn support for the wife does not constitute a desertion entitling her to a

divorce. Bennett v. Bennett, 43 Conn. 313,, sincerely sought, or, in other words, from 818.

Same-By mutual consent.

the period when the mutual acquiescence in the separation is put to an end by the overtures of one of the parties. Hankinson ▼. Hankinson, 33 N. J. Eq. (6 Stew.) 66, 70.

DESERTION (In Maritime Law).

A mere separation by mutual consent is not desertion by either party. Latham v. Latham (Va.) 30 Grat. 307, 321; Alkire V. Alkire (W. Va.) 11 S. E. 11, 12; Barnett v. Barnett (Ind.) 61 N. E. 737, 739. "Desertion," as applied to a severance of the relations between husband and wife, means the absenting of one of the spouses from the other against the will of such other; hence if a married woman left her husband with his consent and remained away, that was not desertion, but merely a voluntary separation. Lea v. Lea, 90 Mass. (8 Allen) law, means, not a mere unauthorized absence

418, 419.

A separation by mutual consent cannot be desertion; neither can desertion be inferred against either from the mere unaided fact of their not living together, though protracted absence, with other circumstances, may establish the original intent. If the husband, after deserting his wife, repents and offers to return, and she rejects his proposal, the statutory period having elapsed, this, at the date of the refusal, becomes desertion by the wife. A desertion ends with the determination of the intent to desert. It ends when the erring party offers to return and is prevented by the other party. The very idea of a "desertion" is to leave without the consent of the other, and is not synonymous with "separation," for a separation implies consent of both parties to be affected thereby. "Desertion" and "abandonment" are different words to express the same thing. The word "desert" means to part from, to end a connection with, to forsake, to abandon, to leave without permission, to forsake in violation of duty. Stoddart v. Stoddart (Ill.) 11 Chi. Leg. N. 162.

Where a wife left her husband at his suggestion, and there was subsequent correspondence in which both parties suggested conditions for a return, though no satisfactory agreement was reached, the separation would not justify the granting of a divorce. Middleton v. Middleton, 41 Atl. 291, 293, 187

Pa. 612.

A divorce on the ground of desertion will not be granted where the parties have met in friendly relations within two years of the filing of the petition, and defendant within that time has given plaintiff money and repeatedly requested her to live with him. Davis v. Davis (N. J.) 30 Atl. 20.

The voluntary separation of a husband and wife for mutual dislike, incompatibility of temper, incongeniality, or other cause, however long continued, will not constitute "desertion" on either side, within the meaning of a statute authorizing divorce therefor. It will become a desertion, however, from the time when a renewal of the marriage ties is

"Desertion is, by the law maritime, an unlawful and willful abandonment of a vessel, during her voyage, by her crew, without an intention of returning to their duty. It is not a mere unauthorized absence from the ship without leave." The Union (U. S.) 24 Fed. 537, 539.

"Desertion,' in the sense of the maritime

from a ship without leave, but an unauthorized leaving or absence from a ship with an intention not to return to the service, or, as it is often expressed, animo non revertendi; that is, with an intention to desert." Coffin v. Jenkins (U. S.) 5 Fed. Cas. 1188, 1190; Per Story, J., in Cloutman v. Tunison (U. S.) 5 Fed. Cas. 1091, 1093.

Desertion is the quitting of a vessel by a seaman, not only without leave or permission, but without justifiable cause, and with the intent not to return again to the ship's duty. The Mary C. Conery (U. S.) 9 Fed. 222, 223.

"Desertion" by a sailor, during a voyage, such as will work a forfeiture of all wages previously due, must be, not merely an absence without leave or in disobedience of or ders, but a desertion with an intention to abandon the ship; and if, after desertion, a seaman offers to return to duty in a reasonable time, and offers amends and repents of the offense, the master is bound to receive him back, unless his previous misconduct would justify a discharge. The George (U. S.) 10 Fed. Cas. 201, 204.

DESERVING.

The word "deserving," as used in a will giving the surplus of testator's estate, after payment of legacies, to be distributed to such persons, societies, or institutions as the executors might consider most deserving, denotes worth or merit, without regard to condition or circumstance, and is in no sense of the word limited to persons in need of assistance, or to objects which come within the class of charitable uses. Nichols v. Allen, 130 Mass. 211, 218, 39 Am. Rep. 445.

In a will bequeathing property to selectmen in trust for the special benefit of the worthy, deserving poor of a certain town, the phrase "worthy, deserving poor" was not an indeterminate and uncertain one, but one which the selectmen might well determine. Beardsley v. Selectmen of Bridgeport, 3 Atl. 557, 558, 53 Conn. 489, 55 Am. Rep. 152.