
    Richardson vs. Wilson.
    The legislature, at the instance of the husband, by a special act, granted a divorce, desolving the marriage, to whieh act was the following proviso: “That nothing in this act contained shall deprive the said Mary Ann of her right to alimony, if by law she is entitled to the same.” Upon a bill filed by the wife, after the divorce, praying for alimony, &c., it was held, that she was entitled, by virtue of the 10th section of the act of 1799, ch. 19, to such portion of her former husband’s estate, as the court, from the nature of the case, deemed proper, within the limits prescribed by said act-
    The act of 1799, eh.19, authorises the court to decree to the wife, who is divorced, such part of the husband’s estate, as is therein limited, whether the divorce was obtained at her instance, or that of her husband.
    The complainant and defendant were married in October, 1832, and in March, 1833, the complainant left the house of defendant, and from thenceforward they lived separate and apart. On the 11th of October, 1833, the defendant, Wilson, presented a petition to the legislature for a divorce, and the legislature, at that session, passed an act, divorcing the parties; which contained the following proviso: “That nothing in this act contained shall deprive the said Mary Ann of her right to alimony, if by law she is entitled to the same.”
    On the 10th of May, 1834, the complainant filed this bill, stating their marriage and separation, and the reasons which induced her to leave defendant. She stated, in substance, that during their matrimonial connection, the defendant showed an entire want of those feelings which should have existed between them — that his treatment grew worse every day, until her condition became so intolerable, that she was forced to leave him; that in the fall of the year, 1833, without having made any attempt at reconciliation, he applied to the-legislature for a divorce, without consulting or informing her of it; that the legislature passed a law, desolving this marriage, but reserving }jer rigfit to alimony, &c. if by the existing laws, she was entitled to it: she prays for alimony, or such portion of defendant’s estate to be decreed to her, as may be authorized by law, &c.
    The answer of the defendant denies the charges in the bi]l, and details minutely and particularly the facts and circumstances, which, the defendant alleged, had taken, place between them; states, that the language and unkind expressions, charged in the bill, as proceeding from him, if used, were forced from him by complainant’s own extraordinary conduct — that he was attentive to her — that she had every thing she wished, or that was necessary for Jier comfort; that she admitted in January, after their marriage, at the time when she was about to leave him, that she had no complaint to make against him, he had treated her well, and that she left him voluntarily and without any good or sufficient cause; and that after she had thus left him, her conduct was of such a character, in regard to him, as to preclude any hopes of their ever living together again. He admitted he applied to the legislature for a divorce, which was granted by the passage of the act referred to in the bill, and denied that she was entitled by law to alimony, or any part of his property.
    A great deal of proof was taken on both sides, which it is not necessary to set forth. The complainant proved her general character to be good, no immorality of any kind was proved, on her part, nor any cruel or harsh treatment, upon the part of the defendant. But there were frequent bickerings and complaints between them, of such a character as tended to diminish confidence, and render their union unhappy.
    -The circuit judge allowed her $325 per annum, from which decree defendant appealed.
    
      William Thompson, for complainant.
    The complainant and defendant were married in October, 1832, and separated m March, 1833. Col. Wilson presented his petition to the legislature, praying tor a divorce from the bonds of matrimony,'.'on the 11th of October, 1833. . A law was thereupon passed, divorcing the parties, but reserving to complainant her claim to alimony, if, by law, she was entitled to the same.
    A prominent ground relied on by the petitioner, in his memorial to the legislature for a divorce is, the mental derangement of his wife. This ground, as stated and relied on by the petition, appears to counsel of a very extraordinary character, and as a precedent most monstrous in its consequences. If it be established as a rule, that a few short months of derangement, in which there is neither crime, nor error, nor indiscretion, but which, in the economy of a wise and inscrutable providence, happens alike to the innocent and the guilty, to the wise and the unwise, shall be received as a ground for divorce, then all our notions of the object and design of marriage, of die duties and obligations incident to it are wrong, and are to be learned anew. Is it not that the husband and wife are a prop and a stay to each other, in the journey of life; is it not in health and in sickness, in prosperity and in adversity, that the husband has sworn to love and to cherish the wife; otherwise their union would be only of sunshine duration. Let the bloom of health and of beauty once wither under the Chilling frost of sickness, and of sorrow, and die husband stands ready to cast her, “like a loathsome weed, away.” The rule, once established, must be indiscriminating in its operation. Let the husband awake from die delerium of his temporary derangement, and he beholds his tvife in the arms of ano-tiier; her hasty love hallowed and sanctified by legislative enactment! He hears the sacred name of father, from the lips of his children, fall upon the ear of a stranger! And as the wife, when sinned against, cannot have alimony, so on the other hand must the husband, when thus divorced by the wife, be dispoiled of his property and ¡11S children, elected from his home and cast a beggar , ’ ,’ „ . , ,® upon the world. Can any conception be more maddening to the human brain? And this, not because the poor man had offended, but because it had pleased the Almighty to. afflict him.
    With such a petition, the defendant, acknowledging therein that by the existing laws of the land, he was not entitled to a divorce, a main and prominent ground of reliance, the derangement of his wife, and a law in consequence thereof passed, granting a divorce from the bonds of matrimony, but reserving to the wife her claim to alimony; we ask, is it possible, in an enlightened and Christian community, for the defendant to escape being held liable to provide for the complainant a decent and competent support?
    Were the above, the only ground of reliance in this cause, with much confidence we should submit to this honorable court, the complainant must succeed in her suit. So far, however, from this being the only ground of reliance, her claims to the interference of the chancellor, for other reasons, are most cogent, and as we humbly conceive unanswerable. Suppose, for argument sake, that a wife even elopes from her husband, so it be not an adulterous elopement, has she not a right to repent and return? And if she return to him, is he not hound to receive and support her? and if he refuse upon her return, to receive and support her, is he not bound to pay for necessaries furnished to her by others? That such is the husband’s liability, and such the settled law: see Clancy on Rights, 28, 29, 44, 51, 52: 8 John. Rep. 57: 11 John. Rep. 281: 2 Kent’s Com. 147.
    Before we consider the constitutionality of this law, so far at least as the complainant chooses to object to it, as expounded by defendant’s counsel, let us for a moment consider the relative claims of husband and wife upon the contract of marriage. The husband immediately becomes, and places himself, in a situation to be■come the absolute owner of all her personal property; and choses m action, he becomes immediately the usu-fructuary of her lands, • and may presently be tenant by the curtesy. And what, for thus parting with'herself and her property, does the wife get in exchange? The law secures to the wife her just and well founded claim upon her husband, for a support during his life, suitable for her situation in society, and to a just portion of Ms estate ■after Ms death. These are, in part, the- claims of the wife by the contract of marriage, and which, by the law ■dissolving the marriage, could not consistently with the constitution be impaired, and are substantially by the explicit provisions of the act reservéd to her. . The rights of a wife on marriage, are rights secured by contract, and for a legislature to pass a special law, rescinding the contract, and depriving the wife of her rights under it, would be a palpable, and with all due doference we add, a shameful violation of the constitution.
    We say tMs was the opinion of the legislature, which passed the law, for so far from impairing the wife’s claim to alimony, they have expressly reserved, and thereby evinced the intention of securing it to her. Upon the passage of the law, granting the divorce, the complainant’s right to alimony, her claims upon defendant for support and maintenance, stood at least as fair and unimpaired-as they did before its passage. 'What was the right? Upon the defendant’s own showing, the complainant had done nothing to forfeit her claims on her husband. If, after the few months absence that intervened between their separation in March, and the granting the divorce, she-had presented herself to her husband, and claimed Ms support, he. would have been bound to have received and maintained her. The legislature rendered her return impracticable, by dissolving the marriage. Is' she not, then, excused from the offer to return, and are- not her rights to maintenance and support preserved in full force and vigor? Did not the defendant procure the law to be-passed, and accept the divorce on those terms ? A person who avails himself of the advantages of an unconstitutional law, cannot turn round, when other provisions of the same law are made to operate against him, and object to their enforcement.
    On this point I refer the court to 3 Marshall, 515: 1 Lit. Rep. 377: 3 Monroe, 426: 5 Monroe, 98.
    Marriage is a contract somewhat unique in its character. In addition to the respective rights of the parties entering into this union, and growing out of their contract, the' community, in which they reside, are deeply interested; and hence, the laws with heavy penalties that are enacted against bigamy, &c.
    We do not raise the question here, whether the law granting the divorce, so far as the community is concerned, is constitutional or not? But we do most earnestly’ contend, that the wife upon the marriage has vested rights growing out of the contract, and assured to her by its very terms; and that any special law passed by the legislature, impairing the obligations of the marriage contract,' and violating the rights, so far as' she thinks proper to1 object, is unconstitutional and void.
    Without the right and opportunity of being heard in • defence, without a judicial investigation and sentence, for a citizen to be thus prejudiced, is, we conceive, to make the constitution a dead letter. Judge Story, in 3 Com. 258, says, that the rights secured by the constitution against legislative violation, are those which may be asserted in a court of justice. Are not the rights of the wife, by virtue of the marriage contract, such as may be asserted in a court of justice? See the observations of Judge Marshall, on the right of the legislature to grant divorces, in the case of the Dartmouth College vs. Woodward, 4 Wheaton Rep.' 629; and the opinion of Judge Story, in the same case, at page 695. It is manifest, in the opinion of Judge Story, that though the legislature may pass a general law, regulating the marriage contract, like other contracts, still to rescind it a judicial inquiry and sentence is mdispensible. We argue, then, that $ie complainant had not forfeited her claim to alimony, at the passage of the law, granting the divorce, and that the legislature could not prejudice her claim for alimony, much less destroy it. And, finally, that so far from attempting this, they have by express enactment most emphatically preserved and secured it to her.
    That a court of equity has original jurisdiction on this subject, to give relief, independent of any statutory provisions; see 4 Lit. Rep. 202: 2 Dess. Rep. 50. Alimony is incidental to divorce, and the court of equity will decree it. 1 Bac. Ahr. 494, 495.
    Before the attention of the court is invited to the evidence in detail, let us consider what is to he collected from the character of the answer. The question here is, to whose fault is the separation to be attributed? By whose malignity of temper was it caused? When we hear die asseveration by the defendant, of his kind and affectionate treatment of his wife, connected with such evidences, furnished, in his own answer, of hate and angry feeling, we ask, would it be philosophical to attempt to prove sanity of mind, by the incoherent ravings of madness ? Would it be either philosophical or logical, to deduce sobriety and temperance from the reelings of drunkenness? To argue in favor of the defendant’s mildness of temper, after reading his answer, seems to counsel, not less absurd and unphilosophical, than to attempt to convince one he is inhaling the balmy atmosphere of summer, whilst his ears are continually pierced by the wintiy blasts of December. Is not the verity of the complainant’s hill, as to the unhappiness of defendant’s temper and disposition, irrefutably established by his own answer. But to look for a moment to the proof. This lady has proven, in the first place, by some fifteen or twenty witnesses,male and female, of the first character themselves, in the city of Nashville, who have known her intimately for many years, some of them more than twenty years, that she has ever sustained the most unsullied reputation, it is proven that she is a lady of great delicacy and refinement, and as innocent, as confiding, and as artless as a child.
    So far from the defendant proving, by two respectable physicians, that the complainant’s sickness was the effect of drinking; the only one, whose deposition he has taken, proves conclusively that there was not the shadow of truth in the charge, though whilst complainant was dangerously ill of fever in December, 1832, produced from cold, the defendant did, as the doctor proves, endeavor to impress on his mind, that her illness was the effect of drinking; and this too at the very time he says he was most attentive, kind, and affectionate.
    The counsel for the defendant, in the court below, relied upon many cases from the English Ecclesiastical Reports, to show that the case made out in proof by the complainant, would not entitle her to a divorce from bed and board, and to alimony. This legal argument we answer, is a two edged sword, for much more strongly does it prove, that the defendant was not entitled to the divorce, which upon an ex parte hearing he obtained. But whatever opinion may he entertained, as to who brought about the quarrels and bickerings between them, or who was in fault, it is confidently asserted, that the act of 1797, Ch. 2, sc. 10, entitles a woman divorced, by the court or the legislature, to an allowance out of his property for her support.
    
      J. Campbell, Anderson, and Clark for defendant.
    1. The obligation of the husband to provide for the wife, only continues so long as the relation of husband and wife exists. Upon the dissolution of the marriage, by the death of the husband or otherwise, the right of the wife to be supported out of the husband’s property ceases. This is inferable from the fact, that the laws , regulating dower, and distributive portions, are altered at the will of the legislature, and operate upon marriages before as well as after the passage of the act. *
    2. The legislature have the power and jurisdiction to ■grant divorces; (2 Kent Com. 105, 107: 2 Tenn. Rep. 5: 4 Wh. Rep. 518;) and after the bonds of matrimony are dissolved, when the relation of husband and wife ceases to exist, the person, who was the husband, is no longer bound for the support of the wife, when he is no longer husband — nor is his property bound.
    3. The plain meaning and intention of the act of the legislature, granting this divorce, was to secure her right to alimony, if she was then entitled to it. It did not refer to the time future, but to the time present. It would certainly be a strange and inconsistent construction of the act of the legislature, to suppose that they intended to dissolve the bonds of matrimony, and in the same breath to say, she should have die privilege of returning, and being his wife. What they intended to say, was, if she was then, i. e. at the passing of the act, entitled to alimony, we will not takeit away.
    4. But take the case upon the other ground, and say, that tire legislature had no right to pass such an act, then the relation of husband and wife still continues, and she has no right to alimony, as wife, for she left her husband without cause and has never offered to return.
    5. The legislature exercised the power in this instance rightfully. They did not go upon mistaken grounds. This court would not say, if they had the power of revising the act, that it was a wanton abuse of power— they have no power to reverse it. If the act, then, “means” what it says, that she shall be allowed alimony, if, at the time of passing the act, she was, by law entitled to it, we must next inquire in what cases alimony was “then” allowed by law.
    The 9th section of the act of 1799, ch. 2, allows 
      alimony to the wife, when she' has been maliciously abandoned, turned out of doors without good cause, cruelly ' or barbarously treated, and for gross indecency of conduct: for these causes, which, in the language of the “act,” makes her “condition intolerable,” she is entitled to alimony.
    
    In this case, from the proof, it is confidently asserted, no one of these causes exist. The complainant left her husband, “abandoned him,” without any legal justification. (The counsel here referred to, and commented on, the following authorities, to show what conduct, on the part of the husband, would justify such a step. 2 Kent’s Com. 126, 128: 2 Mass. Rep. 150: 3 Do. 321: 4 Mass. Rep. 187, 501: 2 Atk. Rep. 96: 1 Eccles. Cond. Rep. 204, 210: 2 Do. 158, 163, 208, 355: 3 Do. 329: 6 Mass. Rep. 69: 1 John Ch. Rep. 604: 4 Do. 187, 501: Reeve’s Dom. Rel. Ch. 16.)
    When the wife voluntarily and without cause leaves her husband, he is not compelled by law to support her, or pay any debts of her contracting, although they were contracted for necessaries. Clancy on Marital Rights, 29, et seq: 2 Black. Rep. 1080: 1 Bac. Abt. 295: 1 Ld. Raymond, 444: 2 Strange, 857: 11 John. Rep. 281: 12 Do. 293: 2 Kent 147.
    The act divorcing these parties, places the complainant in the same situation, as if she were applying under the act of 1799, for a divorce from “bed and board.” Viewing it in this light, would it be possible for her, from the proof in this cause, to have obtained such a divorce ? It is confidently believed she could not, and if she could not, she certainly was not entitled to alimony, when the law divorcing her passed.
    
      R. J. Meigs replied.
   Catron, Ch. J.

This legislative divorce must be treated as a judicial sentence and decree, binding on the parties; or it must be taken to be void, and of no effect. Both parties recognize its binding force on them, and so the court will consider it. We then have the judgment of a power that dissolved the contract of marriage, the same as if it had been annulled by force of the act of 1799, by a judicial tribunal. When the divorce is pronounced, dissolving the bonds of matrimony by a court of justice, what is the duty of the court? “On making up the decree,” (says the 10th sec.) the court shall decree to the wife so divorced, such part of the real and personal property as they shall think proper, consistent with the nature of the case.

It is contended, this section does not., apply where the wife is in default. From mature consideration, on a former occasion, this is believed to be a mistake. The husband, of course, has taken all the goods'by the-marriage, and is entitled to the lands, if there be children of the wife, as tenant by the courtesy; and she must not be permitted to perish with hunger and cold, because frail. In every case, is the wife entitled to the protection of the court, and some provision. It is a matter, more or less, dependent on the circumstances; the statute makes no exception. But here there is not any such discretion left to the court, as where the wife has furnished cause for a divorce; this divorced wife did no such filing. Truly, from difference in habits and inclinations, two very intelligent and respectable persons, who were man and wife,"disagreed, precisely why, we cannot ascertain from this record; but that either was guilty of any conduct to furnish grounds for a divorce in a court of justice, no one pretends. , Mrs. Richardson, stands on the ground very much, so far as the present application is concerned, as other divorced females, where they had been the injured party. Not that she was injured in legal estimation; but she has not legally offended, and is most clearly entitled to the means of support from Col.. Wilson. To refuse it, would be pronouncing the tenth section of the act of 1799, a dead letter. But this ;s not ¿ie principal difficulty, for the case never presented f 1 J ’ , . „ . ^ any on the statute; it is, whether shall we decree Mrs. Richardson, by partition and in fee, part of the property of Col. Wilson, or shall we order the maintenance, as decreed below? With the sum we are well enough satisfied; and under the circumstances of the wealth and age of the complainant, we think it best for both sides,, that the decree below be affirmed, and the property be only mortgaged, as property should not be decreed, furnishing a less income than some three hundred dollars, if the absolute title was vested in Mrs. Richardson.

As to the pleadings, we think they fully set forth the case; and authorize any decree, the facts set forth may justify, under the general prayer for relief.

Peck, J.

The relation which exists by the contract of marriage, creates right, and vests them in the parties, which courts in all civilized countries consider sacred. The refinement of a people, and the purity of their morals, are perhaps better tested by the regard which the laws have to the enforcement of the relative duties arising from this relation, than from any other source.

And it may safely be said, that when a people become lost to the binding obligation of the marriage contract, they are verging to a state that threatens the social compact. We may, when such a state of things can be looked upon even with indifference, reasonably calculate, that such a community is retrograding. We do not say this as a censure upon individuals, or co-ordinate branches of the ■government under which we live; but it is expressed in sober seriousness, because it is felt to be true.

By the marriage, brought before us by the pleadings in this case, Mrs. Richardson, the late wife of Col. Wilson, gave to her husband every thing she possessed. He was entitled to her property, her affection, and services, during life. The dominion lie acquired, the law supposes would x , . be exercised, in the spirit of refinement, and with a view to the courtesies of life, best calculated to produce the end for which it was yielded. While the law supposed it possible that either of the parties could misbehave to the other, it certainly viewed the event as improbable, considering the refined age in which we live. But, admitting such a contingency, then the husband had power over his wife; his will was a law to her. Not that in a case of abandonment, he would exact subjection with savage force; but by a bland, persuasive, and soothing deportment, call back the wanderer, and restore the peace which had departed for a time from the domestic circle. Whenever we consider, that this power was inherent in the husband, the law calls -upon us, in such cases, to look to what he may have done. It would be endless, however, to attempt to enumerate a long train of evidence, which is usually brought to bear-in such cases, where things the most trivial are magnified, and if ' possible, the court diverted from the main inquiry.

The first question, therefore, is, what has the head of the family done. Admit it to be true, thatthe lady acted precip-itatély, .in departing from the house of her husband, the husband, without courting reconciliation, shuts the door against it. He applied to the legislature, and on his ex-parte representation and application, obtains an act dissolving the bands that had united them. Here it must be seen, that, without depth of research into books, the hus-bajid has closed the door of reconciliation Before the divorce, the law gives the wife time to repent, and moral duty expected of her to do so; but by the divorce, she is cutoff from the possibility of doing so. Whenever this point is established, we have given to us a plain way to follow. *

We are aware of what is every day urged, the omnipo-tency of the legislature; that whatever is not forbidden by the constitution,’ is left open for that body to do; but here the question is, has the legislature the power to do this, and Cut off a vested right? By the divorce, Wilson places J ... ^ himselí m a condition to marry again, or, it you please* to shut Ms door against bis late wife, while he may have,. and actually does have, advantages by the act, which, otherwise, he could not claim. Still, the question recurs, are all her rights gone? This must depend upon the nature of the contract of marriage, and the act of assembly authorizing divorces; not the special act passed, which separates the parties, but upon the general law, the act of 1799, ch. 19. This was the law in existence at the time the contract was entered into; and, certainly, such parts of the act as can be brought to apply in favor of the wife, she must not be denied the benefit of.

If the legislature have, while the act of 1799 was in force, stepped in the place of judicial authority, and granted the divorce, cannot the courts of justice take up tire cause, exactly where the legislature left it, and make inquiry, as if the divorce had been then and there granted by the court. If this is not so, then may the marriage contract be considered as a mere useless ceremony, not even made with a view to those rights which are considered as attaching to it in countries where laws and constitutions are like our own; but an idle ceremony, liable to be broken in upon by one of the parties, without the consent of the other.

Wilson opposes the claim, with the special act of assembly in his hand. That act must be taken altogether; and by the very terms of the act, a right is left open to her to institute inquiry in the form she has done it; and no man, it seems to us, will pretend that without the proviso, would she have been cut off from such inquiry. Her right to a portion of the estate, must depend upon the act of assembly of 1799. The 10th section is in these words: c£It shall be the duty of the court, in making up their decree, to decree to the wife so divorced, such part of the real and personal property, as they‘Shall think proper, consistent with the nature of the case, and shall appoint three freeholders to make division accordingly.” It has been made a question, to what decree this act has application. The answer is plain from the act. The. 9th section provides for a decree for alimony; this decree* when entered, is, by the terms of the act, kept under the control of the court; for, as it awaits reconciliation, the decree' under it may be considered temporary. The decree, under the language of this section, may be suspended or annulled.

But the 10th section is not temporary, it authorizes a decree for the estate, makes division thereof, and vests the wife with it, and can properly apply only to a case where the decree makes a final separation. But it is supposed, that the terms, “shall decree to the wife such part,” applies only to cases where she is the injured person, and the applicant obtaining the decree. Not so; there was no necessity for extending the provision to the husband, because he had the estate in himself; and to divest it out of him, and place it in the wife, was the object of the enactment. As she was to remain no longer his wife, so it was important she should have her portion of the estate in fee, to be used or disposed of, at her pleasure. This, it is recollected, was the construction given to the act, at Nogersville, many years since, in the case of Malony and wife, determined by this court.

In this country, we are not driven to ecclesiastical jurisdiction for rules to govern us; the provision has become statutable; and when the decree is pronounced, the act is directory, as to what shall be done. Nor can it be material in what form it has been obtained, whether by the action of judicial authority, or the more summary process of legislative enactment. When the latter form has been pursued, the courts bring the divorce before them; treat it as a decree; and then, in the language of the section above quoted, decree consistent with the nature of the case. The parties have a right to open the evidence, and unfold ■¡he circumstances which led to the separation.

While no separation can be esteemed honorable to the parties, much more blame may attach to the one side than to the other. It is scarcely possible to conceive how one sustaining a character so amiable as that proved in favor of Mrs. Richardson, by the great number of respectable witnesses called, would have taken herself from the domestic circle, unless something more 'serious had transpired, than has been disclosed. Take the errors imputed to her in the proofs, and we see little to blame, except capriciousness, which, it would seem, a little soothing might have corrected; so that, upon the whole, the present complainant stands before us with a character untarnished, as far as morality is concerned, unless it was immoral, to go away. The substantive charges against her are not sustained, by any proof in the record.

We have been told, that we have no precedent for this proceeding; that inasmuch as the legislature has granted the divorce, having the power to do so; that because no decree, in the legal acceptation of the term, has been entered, that the matter ends there; and that no such case . having arisen, is an argument against the admission of the doctrine insisted on. But for this, there would be no difficulty whatever; for if we had pronounced the decree, it would have been our duty to have completed what the act commands, a division of the estate.

But counsel forget, when they urge this upon us, that the constitutionality of the act is at once raised; a question of extreme delicacy; and as the bill does not call upon us to remove the act, if unconstitutional, but is willing to treat it as if it had been a decree, which required to be perfected, in the particular, relating to a provision for the complainant, in some form, surely she might be allowed to bring into court the little remnant of the act, the proviso, and claim, in some form, the right which it implies is reserved to her.

We hear it sometimes said, there shall not be a right without a remedy. Here is a right; for the act superin-duced by the respondent, contemplates it. The act of 1799, and the common law, contemplate it. And shall we hesitate to enforce the right, in a form which affords to the respondent every advantage he could ask? We think not; it is a matter for an account, and this is the proper forum to take cognizance of it.

Green, J. gave no opinion.

Decree affirmed.  