
    ELIZABETH WALTERS vs. CLEMENT H. JORDAN AND OTHERS.
    Under our Statute (Rev. Stat. ch 121 sec. 11) barring ihe claim of an adulteress for dower, “ if she -willingly leave her husband and go away and continue with her adulterer,” although the wife doth not continually remain in adultery with the adulterer, yet if she be with him and com mit adultery, it is a “ continuing” within the Statute ; and, if she once remain with the adulterer in adultery, and he afterwards lteep her against her will, or if the adulterer turn her away, she shall still be said ‘‘to continue” with the adulterer, within the Statute.
    There may not be any adultery before the wife leaves her husband, nor an elopement with the man, with whom she afterwards committed adultery, but she is barred by adultery with any person, supervenient upon her willingly leaving her husband.
    But, in order to support, under this Statute, a bar to the claim of dower, it must appear that the wife willingly left her husband. If driven away by-liim or by his compulsion, the wife does not forfeit her dower.
    It is immaterial whether the adultery was committed before,' or after the separation.
    Tearsox, J. dissent.
    Appeal from the Superior Court of Law of Person County, at the Spring Term 1852, his Honor Judge Caldwell presiding.
    This is a petition for dower, and the defendants pleaded in bar, that the plaintiff willingly left her husband, and went away and lived in adultery with a certain negro slave, without any reconciliation. On the trial, evidence was given on the part of the defendants, that the husband and wife were living apart, and that, a few months afterjhe separation, he filed a bill against her for a divorce for cause of adultery with a certain negro, by whom she became pregnant of a child, of which she was afterwards delivered. When the copy of the bill was served, it was read to her by the witness, who asked her if it was so, and she held up the child and said, it would show for itself; whereupon the witness stated, he thought it was a negro child, and asked her if it were not; and she replied, that she was not the first white wo man that negro had taken in — that, when he first came about her, she hated him, but that, after a while, she loved him better than any body in the world, and she thought he must have given her something ; that the witness then said, he did not blame her husband for what he had done j and she replied, she did not blame him for any thing, except that he drove her off, before he knew, whether it would be a black child or not; and the witness remarked, that she supposed he had good reasons to believe it. On the part of the defendants, further evidence was given, that the husband and wife had been married and lived together several years; until about three or four months before the husband’s death ; and that, upon the separation, the wife went to the house of another person to stay ; and evidence was also given, fending to show, as it seemed to the Court, that, after the separation, the plaintiff committed adultery with a negro man, and that she continued apart from her husband, without any reconciliation, until his death, and since that time has been a lewd woman.
    On the part of the plaintiff a witness deposed, that, on the day of the separation, the husband sent for him, and, as he was going to the house, he met the plaintiff coming away in tears ; and that, when he got there, the husband told him, that he had understood his wife was pregnant by a negro man, and he had driven the strumpet oil, and she should never live with him again.
    The counsel for the defendant moved the Court to instruct the ]ury, that, if the plaintiff co-habited with a negro man before the separation, and that came to the husband’s knowledge, and was the cause of the separation, the plaintiff did willingly leave her husband, within the meaning of the law, and was barred of her dower, although the husband ordered her away. The Court refused to give the instruction as prayed for, and told the jury, that, if the husband ordered her away, though for the cause of adultery, she could not be considered as willingly leaving her husband, within the meaning of the act, and would not be barred of her dower, though she had committed adultery.
    The counsel then prayed the Court to- instruct the jury, that there was evidence that the plaintiff continued with her adulterer, after having left her husband. The Court refused to give the instruction and told the jury, there was no evidence, that she continued with her adulterer, within the meaning of the law.
    The counsel for the defendant further prayed the Court to instruct the jury, that, if the plaintiff was guilty of adultery, without the sanction of her husband, the'manner of her going away from him, whether by or without his orders-, made no difference; and also that the mere manner of her remaining apart, whether in adultery or not, made no difference ; that adultery, without the sanction of the husband, was the bar to the plaintiff’s right of dower; and that nothing removed it but reconciliation. The Court refused to give the instructions as prayed, but instructed the jury, that the act of separation must be voluntary on the part of the wife, and that there must be a remaining away and a continuance in repeated acts of adultery, in order to bring the case within the meaning of the law; and tirata single act of adultery with her adulterer, after the separation, was not sufficient to bar the plaintiff.
    The jury found the issue for the plaintiff, and after a judgment and award of the writ, an appeal was allowed to the defendants.
    
      Norwood for the plaintiff.
    
      E. G Reade for the defendants.
   Ruffin, C. J.

If the case depended upon the correctness of the latter parts of the instructions, the judgment would be reversed ; as Lord Coke states very explicitly in 2 Inst. 435, that albeit the wife doth not continually remain in adultery with the adulterer, yet if she be with him and commit adultery, it is a tarrying within the statute 13 Ed. 1, ch. 34, which is re-enacted in Rev. Stat. ch. 121, Sec. 11; and that, if she once remain with theadulterer in adultery, and after he keepeth her against her will, or if the adulterer turn her away, yet she shall be said morari cum adultero, within the Statute. The case of Hetherington v. Graham, 6 Bing. 135 is also a clear authority and upon sound reason, that there need not be any adultery, before the wife leaves the husband, nor any elopement with the man, with whom she afterwards commits adultery, but that she is barred 'by adultery with any person, entirely super-venient on a separation by mutual consent. There was evidence, which, in the opinion of the Court, tended to prove an act of adultery with a negro after the separation, though he is not identified to be the same one, with whom the plaintiff was guilty, while living with her husband; and that case the authorities shew to be within the Statute, provided it was also within if, in respect to the cause of her leaving her husband and his house. As to that, it seems clear upon the evidence, and stands admitted in the first part of the instructions prayed, that the husband ordered or drove her away. That being so, it appears to the Court, that the plaintiff cannot be said to have willingly left her husband; but that, on the contrary, she left him against her will, and by his compulsion, and therefore the case is not within the act, though she afterwards committed adultery with a new or former adulterer. That being so, all the other instructions became immaterial, and any error in them ought not to produce a reversal of the judgment.

The words of the act are in the conjunctive, and plain in themselves ; and in such a case it would seem tobe the province of the Court to receive and carry them into execution, according to their obvious meaning. Therefore, apparently, the ingredient that the wife should willingly leave her husband, was in every case essential to the bar of the dower, given by the Statute. But it is yielded, that, as our Statute is bufe a re-enactment of an ancient one in England, the interpretation put on the original judicially, or by a commentator so wary and wise as Loud Coke, ought to be authoritative as to the construction of ours. Some passages in Lord Coke’s reading on the Stat. West. 2 have been relied on to shew, that it is not material, whether she left the husband willingly or not; and hence it is imferred, that even the compulsion of the husband makes no difference. But the passages do not seem at all to authorize that inference. They are, that “albeit the words be in the disjunctive, yet if the woman be taken away, not sponte, but against her will, and after consent, and remain with the adulterer, &c., she shall lose her dower; for the cause of the bar of her dower is not the manner of the going away, but the remaining with the adu)„ terer in avowtry and then he states a case, in which a man had made a sale and conveyance, by deed, of his wife to another man, whereon it was pleaded in bar, to a writ of dower, quia 7'ecessit a marito suo in vita sua, et vixit ut adultera cum &c.; and upon a demurrer to a replication of the husband’s deed, it was adjudged for the defendant. Now those two cases are entirely distinct from the present, and seem no way analogous to it. In the latter case, there was no compulsion on the wife by any one — either the adulterer or the husband. Nothing like it can be implied from any part of the pleadings, the deed, or Lord Coke’s statement. But the contrary is apparent, namely, that the woman went willingly, for it is stated, just after the passage above quoted, and in contrast with it, as a case, in which she left sponte, while in the other it was otherwise; the words being, “if the wife goeth away” — not by compulsion of her husband, but with her husband’s consent and agreement with A. B., and after A. B. commit adultery with ■ber and she remains with him, she shall be hatred of her dower.” That, therefore, is only a ease, where both parties were willing she should leave, and, in fact, it was as much the wife’s act as the husband’s, and was, indeed, the authority on which that precise position was adjudged in Hetherington v. Graham. The defendant’s case seems to derive as little support from the other passage. The case under Lord Coke’s consideration was obviously that of the forcible abduction of a woman, by some other man, contrary alike to her own and her husband’s will, and her consent afterwards to live in adultery with her violator; and it is in reference to that case it is said, she loses her dower, fpr the ■cause of the bar of her dower, is not the manner of the going •away, but the remaining with the adulterer. That is founded on good reason; for the husband was in no manner accessory to her dishonor, and she did finally, though not ■at first, consent to it. But it cannot be supposed, that Lord Coke would put on the same footing a case, in which a husband aided in forcing his wife to submit to the violation of her ■person, by one, who took her way against her will, though, ■after her degradation, she night continue to live with the ravisher. Nor can it be more reasonably -collected as his opinion that, any case of compulsory expulsion of the wife by her husband, could possibly be deemed her leaving and going away willingly. The two propositions are directly contradictory in'.terms; and n® one could suppose such a case within the words or meaning of the Jaw, if the expulsion were wanton and unprovoked. In such a case, the subsequent adultery would be regarded as a natural consequence of the husband’s wrong, and he could take no benefit from it, nor deprive his wife of any. But, it is .said, this was nota wrong done to the woman, but it was an act, merited by her depravity and baseness, and demanded by his honor: and it is true, there¿_eould be no greater injury inflicted on the rights or feelings of the husband, than that perpetrated by this woman. But the Court has no right to be wise beyond the Legislature, and make a law for a hard case, nor, which is the same thing, bring such a case within a statute, the words of which will cover if, and which was made diverso intuitzi. The laws must be framed, and construed upon general principles, and not vary to meet contingencies, not in the contemplation of the Legislature. Therefore, the construction of the act cannot be influenced by the fact, that the husband drove this woman away, by reason, that, committing the particular adultery, which was her offence, she descended to the lowest depths of infamy, more than if it had been for any other cause, as drunkeness, profanity, ungovernable temper, furious passions, and violent assaults, which rendered her society an intolerable annoyance, and made his life burdensome. Now, for these several acts, a husband may be more or less excusable, in the eye of morality and the law, in refusing to co-habit with his wife, and expelling her from his house, so as to have it in quiet to himself and the other members of his family. But that is not the point. It is, on the contrary, very different. By the common law, a wife was entitled to dower, though she were an adulteress. A statute was then made, whereby she was not deprived of dower, merely by committing adultery, but was barred of it, if she willingly left her husband, and afterwards lived away from him, and committed adultery. Adultery, previous to her elopement or departure, is not alluded to in the statute, and cannot control the construction. If that had been intended to be a bar, or to affect the bar, why did not the statute confine itself at once to adultery simply? Instead of doing so, the object of the act is adultery, subsequent to the willing leaving of the husband. It was very fairly argued at first, that the case contemplated in the act, was not only that expressly mentioned, in which the wile willingly left the husband, but that also the unworthiness of the husband was to be implied. That, however, is settled otherwise, and it is held, that if they concur in separating, the case is within the act. But no case can be found, in which the woman did not leave the husband willingly, but did so unwillingly, and, moreover, by the compulsion of the husband himself, in which it was held against the wife, nor is there any dictum to give color to the proposition.

Peaeson, J.

dissent. A wife, detected in adulteiy, is ordered by her husband to leave his premises. She does so, and continues to live in adultery. Is her right of dower forfeited ?

Whenever the wife lives in adultery, separate and apart from her husband, without his default, dower is forfeited.

Adultery is the offence, which causes the forfeiture. But it may seem, that to allow an inquiry to be instituted, as to the adultery of the wife, in every case, after the death of the husband, would tend greatly to disturb the peace of families, and lead to very mischievous consequences. From motives of policy, therefore, the law-makers deemed it w'ise, to restrict the forfeiture to cases, w’here the wife lived separate and apart from her husband. If the parties lived together, it was thought expedient to let the scene close, at the death of the husband, and to exclude the heir from all inquiry as to the conduct of the wife, which had not been complained of by his ancestor. For, supposing her guilty, it it was known to the husband, and he continued to admit her to his conjugal embraces, he was not fit to have the protection of the law : if it was not known to him, it would be apt to rest on slight and unsatisfactory evidence, and it was wise not to allow an investigation to be instituted.

Where there is a separation without the default oí the husband, and the wife continues to live in adultery, the manner of the separation is obviously immaterial. This construction of the statute is, in my opinion, sustained by the reason of the thing, by analogy, and by authority.

It is said, the terms of the statute confine it to the case of a wife, who “ willingly leaves her husband, and goes away and continues with her adulterer.” These are the words used. The question is, are we to stick literally to the words, and consider the statute as providing only for a single case, or are we to give it a liberal construction, and consider it intended to establish a principle, and as citing one instance, merely, out of many included in it ?

The greater includes the less. This is an axiom in mathematics; and it is equally true, that, in the construction of a statute, where a less offence is denounced, a greater offence of a like kind must necessarily be included in the denunciation.

When a wife loses the affection of her husband, and elopes with the seducer, an abhorrence of the crime is mitigated, to some extent, by a feeling ot pity for the unfortunate victim of passion. But, when a wife transfers her affections to another, and nevertheless continues to live with her husband, and receive from him protection and support, but is ready at all times to slip away and fly to the embraces of another, and then return and pollute the bed of one, whom she injures and deceives, our detestation of the wretch is unmitigated. Can it be, that a statute, which deprives the one of her right to dower, does not apply to the case of the other, because the injured husband finds himself compelled to order the guilty wretch to leave his house, and she goes away and continues in her guilt ? Surely, this construction cannot be put on it, without doing violence to the intention of the law-makers. It holds out a reward to baseness, for, after her detection, it says, “add baseness to crime, confront your injured husband, refuse to go away, so as to make it necessary for him to order you ’to leave, and yea aire at liberty then to go and continue in guilt, and the law protects your right of dower!”

Under such circumstances, the wife does, in contemplation of the law, “ leave willingly.” She willingly does that, which is the necessary consequence of her own act» as much so, as one is said wilfully to bum my house, if he sets fire to an adjoining house, the natural and necessary consequence of which is to burn mine. It cannot, in such a case, be'said,'that the husband is in default. He does only that, which the law allows, expects and requests him to do. She causes the separation, and “ leaves willingly,” to all intents and purposes.

This construction is sustained by authority. Rev. Stat. ch. 39, sec. 2. If a wife separates herself from her husband, and lives in adultery, it is a cause of divorce from the bonds of matrimony. “ Separates,” is an active verb, implies volition on the part of the wife, and is synonymous with “ willingly leaves.” It is clear, that adultery on the part of the wife, while living with the husband, is not a cause of divorce from the bonds of. matrimony. But if, in consequence thereof, he drives her away, and she after-wards lives in adultery, it is settled to be sufficient cause of divorce ; for she has,' in contemplation of law, separated herself from her husband. As these statutes are upon 'kindred subjects, there should be a conformity in the construction ; especially as an effect of a divorce from the bonds of matrimony is the loss of dower.

This construction is also sustained by the authorities. Adultery is a bar to dower, though committed after the husband and wife have separated, by mutual consent. Hetherington v. Graham, 19 Eng. C. L. R. 31. This case is stronger than the one under consideration. Here the husband is in no- default; there, he was, because the. wife had done-no wrong-,■ and he violated his duty to- her, by giving his consent, that she should- live separate from him, whereby she was exposed to temptation. In Coote v. Berty, 12, Mod. 232, to a plea, that the wife had forfeited dower by living apart from her husband in adultery, it was replied, the husband had, by his deed, consented for her to live in adultery. It was held that her dower was forfeited. In Paynell’s case, referred to at length in 2 Inst. 434, to- a like plea in bar of dower, the demandant relied on the fact, that the husband had, by deed, delivered ovei’, given and granted his wife to Sir William Paynell; it was held she was not entitled to dower. The case does not state, whether the wife consented to be thus delivered over and transferred to another, or that she was consulted in respect to it. The inference is, that she had been guilty of adultery, and in those times, when force was more common than fraud, the wife had not the impudence, the baseness and did not dare to confront her husband, so as to make it necessary for him to tell her to leave his premises — she had fled from his wrath, and the indignant husband took this mode of getting clear of her.

The Statute uses the words “ willingly leave, go away and continue with her adulterer.”

It is remarkable, that these words have not been adhered to in any one particular. It was, at one time, insisted that the wife must go away with her adulterer. It was decided, that it made no difference, whether she went away with him, or some one else, or went by herself.

So it was insisted, that she must continue with her adulterer. It was decided, that it made no difference, whether she continued in adultery with him, or committed the crime with another or with divers others. These cases are referred to in the opinion of C. J. Tindall, in Hetherington v. Graham, (he also refers to a case in Britton, whose book was published immediately after the framing of the old St t ute, from a translation of which ours is copied,) “ in which no mention is made of a leaving of the husband, either wil-fully or with any particular person, but the plea states only, that the wife was living apart from her husband in adul~ tery

In 2 Ins. 434, Lord Coke, commenting upon the words in the Statute, sponte Spc., says, “ albeit the words of this branch be in the conjunctive, yet if the woman be taken away, not sponte, but against her will, and after consent, and remain with the adulterer, without being reconciled, &c., she shall lose her dower; for the cause of the bar of her dower is not the manner of the going away, but the remaining with the adulterer in avowry, &c., that is the bar of the dower. At page 436, he says, the words reliquerit et dbierit are not of the substance of the bar of dower, but the adultery and the remaining with the adultei’er.”

Compare the case in Coke with the case before us: An innocent wife is ravished and by force taken away from her home. After the violence, despairing of ever regaining her former position, she consents to remain with her ravisher; yet her dowerjs forfeited. "What becomes of the words “ sponte,” willingly leave ?

Do not these authorities sustain the construction, that the manner of leaving and going away is not of the substance ? If the Statute is so construed, as to include a wife who is ravished and taken away by force, a fortiori, as it seems to me, it must include one, who is guilty of adultery, and is base enough to make it necessary for the husband to order her away.

Pbu Curiam. Judgment affirmed.  