
    William N. Bell, and Wife v. Joseph Nealy.
    Columbia,
    Dec. 1829
    A wife eloping from her husband, and living in adultery, is barred of dower by the St. Westm. 2.13Edw. 1. e. 34. And the fact of adultery may be tried on her application for dower.
    So if the wife leave her husband by compulsion, but refuse to return on his offer to taire her back, and afterwards live in adultery, she is barred of her dower.
    Tried before Mr. Justice 0‘Neall, at Laurens, Fall Term, 1829.
    This was a summons in dower, to recover the wife’s dower of lands of which her first husband, Joel Wins, had been seized in his life tune, and which were. now in possession of the defendant. The defendant pleaded n'unques seisie que dower ; Trun-ques decouples en loyale matrimonie ; and that the wife had (doped, and lived in adultery during the life of the husband. On all of which pleas issue was taken.
    At the trial, the marriage, seisin of the husband, and his death, were fully proved, and the only question was upon the third’ issue. It appeared in evidence, that the wife was compelled by the ill treatment of her husband to fly from his house ; but that lie afterwards, and frequently, solicited her to return and live with him ; which she refused to do, saying that she never had liked him. A year or two afterwards he married a second wife, and she then married onti Graham, with whom she lived and cohabited during the life of her first, husband ; and after the death of both of them, married her present husband.
    The presiding Judge was of opinion that the wife was barred of her dower. By the St. Westm. 2. 13 Edw. l.c. 34. “if a wife willingly leave her husband, and go away, and continue with her advouterer, she shall be barred forever of ucth./i w demand her dower, that she ought to have of her husband’s lands, if she be convict thereupon, except that her husband willingly, and without coercion of the Church, reconcile her, and suffer her to dwell with him ; in which case- she shall be restored to her action.” And this statute having been expressly made of force in this ^tate, P. L. 30. the only question was, whether the de-mandant in this case came within its operation.
    Ill-treatment will justify the wife’s leaving her husband,- and, in this State, alimony will be decreed to her, by the Court of Equity: but if the husband offer to take her back, and give sufficient assurance of his treating her kindly, she is bound to return ; and if she refuse to do so, because “ she never liked him,” she would certainly lose her alimony. The refusal to return, when no good reason exists for it, goes far to shew, that the original separation was not altogether involuntary, and did not originate entirely in necessity. It was clear upon authority, ho wever, that although the elopement of the wife was not voluntary, hut her departure had even been compulsory, yet if she voluntarily remain with her adulterer, when the husband is willing to take her back, she is barred by the statute.
    IM’C. Davis st.
    Thus it is laid down, in 2 Bac. Abr. 384, Dower. F.- “Although she does not go away sponte sua, but is taken against her will, yet if after she consents and remains with the adul terer, she shall lose her dower; for the remaining with him without reconciliation is the bar of dower, and not the manner of her going away.”
    And again, on the same page. “ If a woman be ravished, and remain with the ravisher against her will, she shall not lose her dower ; but if after such ravishment she consent to remain with him, she shall lose it: so if she voluntarily go away from her husband, though she remain all her life time with the adulterer against her will, or if she remain not with him, but he turn her away, yet shall she lose her dower.”
    And in a subsequent passage. “If a man grants his wife with her goods to another, and she lives with the grantee all the life lime of the husband, yet she shall lose her dower, by reason of liviug with him in adultery. And where such grant was pleaded, it was holden. 1st, That the grant was void. 2d, That it did not amount to a licence; or if it did, that it was void. And, 3d, That after the elopement there shall be no averment admitted quódnonfuit adulterium, though the grantee and the woman married after the husband’s death.”
    In the present case the wife had cohabited with Graham during the life time of her husband ; and it was not the Jess adultery, that she had gone through the ceremony of marriage with him. She could not be lawfully married, and her cohabitation with him was living in adultery, and she was, therefore, barred of dower.
    The jury found for the defendant, and the demandants moved to set aside their verdict on the ground of misdirection.
    Caldwell, for motion.
    A. W. Thomson, contra.
    
   Johnson, J.

delivered the opinion of the Court.

The Court concurs with the presiding Judge, for the reasons he has given on all the questions he has discussed. But it has been suggested here, and, perhaps, for the first time, that under the provisions of the statute, to bar the wife of her dower, she must stand convict of the adultery, and that proof of the fact could not be given in evidence in a suit at law for dower.

Thisj it will be recollected, is an English statute, made of force in this State. In that country the spiritual Courts have exclusive jurisdiction of questions of adultery; andl am not prepared to say, nor is it necessary to the investigation of the question now made, that nothing short of a conviction of the wife for the offence could have been pleaded in bar to her right of dower. But we have no ecclesiastical Court here, nor any other tribunal possessing immediate jurisdiction over the subject; and unless the Courts of Law can try the fact when, as in this case, it arises collaterally, it never can be tried. Now when the Legislature incorporated this statute into our laws, it was certainly intended to give it some effect, and if, as this argument supposes, the Courts of Law are incompetent to try it, this intention w'ould be defeati d. Of necessity, therefore, it must be tried in this way.

Motion refused.  