
    Henry L. Marker vs. Hannah Marker.
    The complainant filed his bill for divorce against the defendant, his wife, on the ground of desertion for five years. The defendant, by hex* answer, admits that she had left the complainant’s house, and alleges that she did so because her husband kept lewd women in the house, and cohabited with them. The defendant, after putting in her answer, filed her petition, alleging the same facts contained in her answer, and applied for counsel fees to conduct her defence and alimony pendente lite. The complainant put in an affidavit denying the allegations in the petition. The court allowed the wife a counsel fee and alimony pendente lite.
    
    If a husband, by his extreme cruelty to his wife, compels her, for her own safety and protection, to seek a home elsewhere than under her husband’s roof, she does not thereby desert her husband, in the meaning of the statute.
    If the husband’s cruelty is practised for the purpose of driving his wife from his abode, and she flees from him to avoid his cruelty, he is chargeable with the offence of desex'ting his wife, and would be so regarded by a court of equity on a question for divox’ce.
    In a suit between husband and wife, whether the wife be the complainant or defendant, as a general rule, the wife, as a privileged suitor, is entitled to costs and alimony. The rule originally x’ested upon the pxúnciple, that the husband having, by the marriage contract, the entire control of the wife’s property, she was destitute of means for her own protection. The statute has changed the common law, aud secures to the wife the ownership and disposition of property she may have at the time of her marriage, or may acquire afterwards. The question now properly is — whether the wife has property independent of her husband, and the court will exercise its discretion in the allowance of alimony and costs, having reference to the x’espective pecuniary circumstances of the parties.
    In order to entitle the wife to alimony, she must deny, under oath, the charges which aire made against her as grounds for the divorce.
    Henry L. Marker filed Ms petition, praying for a divorce á, vinculo matrimonii, on the ground of wilful, continued, and obstinate desertion for five years. Tbe defendant answered tbe petition, by wbicb sbe admits that sbe bad left ber husband for more than five years prior to tbe filing of tbe petition; but sbe alleges, as a justification for ber doing so, bis extreme cruelty towards ber, and charges him with keeping, during their intermarriage, lewd women in bis bouse, and of committing fornication and adultery with them.
    
      Tho defendant files her petition, in which she repeats the same charges against her husband. She alleges that she is without means, and prays that she may have a proper allowance made for support during the suit, and reasonable counsel fees to enable her to conduct her defence. This petition is under oath. The complainant has put iu his affidavit denying the charges alleged in the petition.
    
      A. J. Rogers, on behalf of petitioner.
    
      D. Thompson, contra.
   The Chancellor.

Tho petitioner is entitled to counsel fees to enable her to defend this suit, and also to a reasonable allowance for her maintenance during its pendency.

The prayer of the petition was resisted, on the ground that the answer admits the fact of the desertion, and that the allegations, made by the defendant under oath in her petition, are denied under oath by the complainant.

It is true the defendant admits that she did leave the house of her husband, and that her absence has continued for more than five years. But she justifies her conduct on the ground of her husband’s extreme cruelty to her, and because he kept iu his house lewd women, with whom he cohabited. This is a good ground of justification for the desertion complained of. If the facts are proved as the defendant states them, the complainant will not be entitled to a divorce. Indeed, although she left the dwelling of her husband, if she abandoned it for the reasons she alleges, she would be .entitled, on a bill filed by her, to a decree for divorce on the ground of desertion by her husband. It is the intent which constitutes the offence. If a husband, by his extreme cruelty to his wife, compels her, for her own safety and protection, to seek a home elsewhere than under her husband’s roof, she does not thereby desert her husband. If the husband’s cruelty is practised for the purpose of driving Ms wife from his abode, and she flees from him to, avoid cruelty, he is chargeable with the offence of deserting his wife, and would be so regarded by this court' on a question for divorce. Bishop on Marriage and Divorce, § 515, 516, 517, 518, and references.

In a suit between husband and wife, whether the wife he the complainant or defendant, as a general rule, the wife, as a privileged suitor, is entitled to costs and alimony. The rule originally rested upon the principle, that the husband having by the marriage contract the control of the wife’s property, she was destitute of means for her own protection. The statute has changed the common law, and secures to the wife the ownership and disposition of property she may have at her marriage, or may acquire afterwards. 'When the wife is a suitor in court, the question will be — whether she has property independent of her husband, and the court will exercise its discretion in the allowance of alimony and costs, having reference to the respective pecuniary circumstances of the husband and wife.

In this case, the wife says she has no means to defend this suit. The complainant married her before the'year 1852. 'Whatever property, thérefore, she may have had at her marriage is under the control of the complainant. Since her separation from her husband, it is admitted she has maintained herself by her own industry. It does not appear that she has been able to do more than provide herself with a comfortable support. She ought to be provided with means to defend this suit; and there is nothing appearing in the progress of the suit, thus far, to prevent the adoption of the ordinary rule in like cases. Bray v. Bray, 1 Halst. Ch. R. 27; Wood v. Wood, 2 Paige 109.

In order to entitle the wife to alimony, she must deny, under oath, the charges which are .made against her as grounds for the divorce. The statute provides that, in .cases of divorce, the answer shall not he under oath. But the defendant, by her petition, which is sworn to, denies the desertion, which is the gravamen of the bill. Cooper and wife v. Clason and others, 3 J. C. Rep. 521; Osgood v. Osgood, 2 Paige 621.

A reasonable counsel fee and alimony pendente lite are allowed.  