
    JOHN A. STEELE vs. CHARLOTTE STEELE.
    In Equity.
    No. 3444.
    A husband cannot maintain a suit for divorce solely on the ground that his wife has denied matrimonial intercourse to him.
    The plaintiff filed a bill in this case for a divorce from the defendant, his wife, on the ground of desertion. The desertion complained of is, that the defendant withdrew from his bed, and denied him matrimonial or sexual intercourse; that he continued to remain in the same house with the defendant for a considerable time thereafter, and then removed to another house, whither the defendant did not go; that subsequently the complainant requested the defendant, through a friend, “ to live with him again as his wife,” and she replied that “ he could come and live in the house, but she would not live with him as his wife, i. e., she would have no matrimonial intercourse with him.”
    The bill prayed for divorce a vinculo matrimonii, on the ground of desertion.
    The proofs established that the complainant and defendant were lawfully married in September, 1865, and that there were-children from the marriage, and that the defendant had assigned as a reason for denying matrimonial intercourse to the complainant that she did not desire to have any more children.
    The case was submitted upon bill and testimony to the court below, and a decree was made dismissing the bill. The case is now here on an appeal from that decree.
    W. P. Peirce, for complainant, made the following points:
    The plaintiff maintains that he is entitled to a divorce from the bond of matrimony under an act of Congress, approved June 1,1870, and asks that the decree dismissing the bill be reversed on the following grounds:
    1. That the withdrawal of the defendant from the matrimonial bed of the plaintiff, for the uninterrupted space of two years, was desertion within the meaning of the statute. (See Bishop Mar. Div., 3d ed., sections 506, 510; Browning, Laws Mar, Div., page 113, &c.)
    2. That the removal of the plaintiff from the house in which they were domiciled, being the natural and intentional result of the defendant’s conduct toward him, constitutes desertion on the part of the defendant. (See Hodges vs. Hodges, 1 Esp., 441; Camp vs. Camp, 18 Texas, 528; Greenl. Ev., sec. 18, &c.; Bishop Mar. Div., 3d ed., sections 517, 525; Schouler’s Dom. Rel., 1st ed., 54.)
    3. That the subsequent refusal of the defendant to domicile with the plaintiff “ as his wife,” and also the fact that she now remains in a separate domicile, the result of no wrong on the part of the plaintiff, constitutes desertion on the part of the defendant. (See Bishop Mar. Div., 3d ed., sections 728, 514; Kent’s Com., 8th edition, 2d volume, 174.)
    No appearance for defendant.
   The Court were of opinion that the statute in regard to divorce did not confer authority upon the court to decree a dissolution of the bonds of matrimony on the grounds set up in this case.

The chief-justice, while concurring in the judgment, expressed the opinion that a denial of the marital right of intercourse, when continued for a period of two years, should be regarded as a desertion within the meaning of the statute unless such denial was made in consequence of inability from sickness, or other sufficient cause, in good faith.

Order appealed from affirmed.  