Novem'r Term. deed," she continues, "the relations between them 1878. became so perfectly satisfactory that it was determined she should return to live at his home upon his farm, which she did," &c. Harris V. . In the absence of all proof touching the only mat- Harris. ters alleged by the appellee by way of excuse or justification for the abandonment of her husband, I confess I find nothing in the record that seems to warrant the assumption in the decree, that this abandonment was "not without the fault of the plaintiff." He may have been in fault. If he was, I can only say it is not shown. He was penurious, it is true. That is proved. But mere penuriousness is no excuse for desertion. If it extends to a persistent denial of necessaries, when he has the means to supply them, it may amount to cruelty, and be good cause for abandonment. 1 Bishop on Mar. and Div. § 735. It is not pretended that the appellant ever withheld from his wife anything that was needful for her sustenance and comfort, except that for a time, the occasion before alluded to, he forbade the public to credit her on his account, and this offence seems to have been condoned. It is not pretended that his house was not supplied with the requisite comforts and conveniences, for that is proved. It is not alleged that he ever spoke a harsh or unkind word to his wife, or treated her otherwise than kindly, except in his failure to maintain her authority in the difficulties she had with the negroes, and of that there is no proof. The only matters of excuse or justification alleged for the abandonment have been fully considered, and being without proof, they must, as a defence, be without effect. It is charged in the answer that the appellant was under the influence of his relatives, who had been looking to inherit his estate, and being disappointed Novem'r Term. V. Harris. 1878. by his marriage, sought to disturb the domestic peace. There is not the least evidence to sustain this charge. How far, if at all, the sisters of the appellee may Harris have influenced her conduct in this matter, I will not undertake to say; but the fact is prominent in the record, that one of them, at least, who seems never to have been absent from the appellee, was very hostile to the appellant. On one occasion, during the residence at Faber's mills, the appellant sent a letter to his wife. She was sick and the messenger did not see her. He delivered it to the sister, who took it up stairs to the appellee, and after awhile came down with the letter in her hand, and after calling back the messenger, who had started off, he says she tore the letter in a hundred pieces in his presence, and then told him he might leave. The witness, if he knew, does not state the contents of the letter. It further appears, that after the return from Faber's mills, and while this sister was living in the appellant's house, he swore the peace against her and had her bound with a surety in a recognizance. But whatever may have been the cause of the appellee's departure and absence, I think, looking to the record alone, we are bound to say that she wilfully deserted her husband without justifiable cause. Desertion, considered without reference to matter which may exist in justification, is the actual breaking off of the matrimonial cohabitation with an intent to desert in the mind of the offender. 1 Bishop on Mar. & Div. § 777. A mere separation by mutual consent is not desertion in either party, nor as matter of proof can desertion be inferred against either from the mere unaided fact that they do not live together. The intent to desert may be proved, it is said, by a great variety of circumstances. Among those enumerated in the case of alleged desertion of the wife by the husband, is absence for a long time, not being necessarily detained by his occupation, business or otherwise. 1878. Novem'r Term. V. Harris. This protracted absence, without necessary deten- Harris tion, is as potent proof of the intent to desert in case of the wife as of the husband. Bailey v. Bailey, 21 Gratt. 43, and cases cited; Carr v. Carr, 22 Gratt. 168; Latham v. Latham, 30 Gratt. 307. The authorities are not in perfect harmony on the question as to what constitutes legal justification for breaking off the matrimonial cohabitation. Bishop lays it down as the better doctrine, that "when a husband or wife breaks off cohabitation because of the alleged improper conduct of the other matrimonial partner, such conduct must have proceeded so far as to furnish ground for divorce, or the one so breaking off the cohabitation is guilty of the offence of desertion." 1 Bishop on Mar. & Div. § 569. See also § 795 et seq. and cases eited. The appellee, in her answer says, that she left the appellant's house, but "not against his consent." She does not say in direct terms that she left with his consent. The fact, nevertheless, stares us in the face, that she left and went to a distant city and there took up her residence, and there remained for more than fourteen years, never once returning to her husband's home, nor expressing a willingness, wish, or purpose to return. In the mean time, it seems she was made aware of the willingness of her husband to receive her back. A witness, John M. Shelton, is asked, "whether Mrs. Harris has been aware that Mr. Harris could or could not receive Mrs. Harris back to his house, if she chose to return." His answer is, "I feel very sure that she was apprised of the fact of his willingness to take her back, from a conversation I had with her in Norfolk some two or three years ago I think." And about a Novem'r 1878. year before this suit was brought, the appellant inTerm. vited her to return to his house, bought supplies, made arrangements to receive her, and sent her money to Harris bear her expenses home. She received the money and treated the invitation with indifference-never came, and made no response. V. Harris. It is true, that after the process in this suit had been served upon her, the appellee appeared in Nelson for the first time after a continuous absence of fourteen years, and sought and had an interview with her husband. Precisely what occurred in that interview has not transpired. We only know the result, that if reconciliation was the object, it was not effected. In the conclusion of her answer, the appellee says "if respondent could have been made comfortable and protected at home and her health had justified, she would have been willing to live with the plaintiff, and had offered to do so in his present affliction, but he spurns the offer and says the law must take its course," &c. There is no proof of the "offer," but if made, it is not difficult to surmise why the appellant rejected it. He might, I think, very reasonably have concluded, under the circumstances, that the offer was not prompted by conjugal affection or even a sense of duty; and such is the inference plainly deducible from what she says in her answer. "Whilst respondent did not feel disposed to institute proceedings against the plaintiff in his lifetime and claim a support at his hands, yet she is unwilling to yield that right in his property after his death which the law gives her, or even tacitly to admit a wrongful abandonment of the plaintiff by a failure to answer his bill. She is informed that the plaintiff is greatly afflicted in body with an incurable disease, which in the course of nature must soon end his days. She is truly sorry that in that state of health he has resorted to legal process under the hope the law 1878. Novem'r Term. V. Harris. would sever the bonds which now bind them as man and wife, instead of waiting the inevitable result of time and disease, but as it has been his pleasure to do so, respondent claims for herself all the rights to which she Harris is entitled under the law. She is advised that her departure from his house under the circumstances was right and proper, and her conduct justifiable; that she is now entitled under the law to alimony to be charged on his estate, and that if she should be the longest liver, she will be entitled to dower," &c. If the offer to return was ever made, it came too late to be effectual as a defence. The husband's right to a divorce had long since become fixed, and he had brought his suit to enforce it. An offer to return, made in good faith during the statutory period, will put an end to the desertion and bar the suit, but if the desertion has continued the number of years required by the statute, the deserted party may then refuse to renew the cohabitation; and this refusal will not bar the already existing right. 1 Bishop on Mar. & Div. § 810, and cases cited in note 5. There would seem to be nothing in the relative condition, pecuniary or otherwise, of the parties, when the other circumstances of the case are considered, that would justify the allowance made by the decree. There is no issue of the marriage. If the wife is afflicted in body and mind, as represented, the husband, according to her admission, is also "greatly afflicted in body with an incurable disease," has passed the age of three score years and ten, and "in the course of nature must soon end his days." If she is poor, he is far from being rich. The income, if any, from his small estate is probably not sufficient for his own support. The wife brought nothing to the husband at the marriage, she added nothing to his estate by her earnings, and if during the very brief period of cohabitation, |