cause she had not shown two requisite elements, sincerity and promptness.

Another English case worth mentioning is that of M—., alias D. v. D., reported in L. R. 10 P. & D. (1885) 75, 175. There a suit was brought by the wife against her husband for nullity for impotence and a cross-suit by the husband against the wife for divorce for adultery. The suit for impotence was first tried and the decree was granted. The adultery was not pleaded as a defence in the nullity suit, nor does it appear that the impotence was pleaded as a defence in the suit for adultery, but the proofs in the suit for nullity showed strong probability of adultery.

The petitioner contends that the present case shows ratification by the defendant, also lack of sincerity on her part.

It seems to me that the point is well taken. The defendant, after living twenty years with the petitioner in the hope of his recovering his virility, instead of suing for nullity separated herself from him and accepted a competent support from him for ten years, and, so far as appears, would have continued so to accept it if he had not, upon discovery of her adultery with another man, brought suit for a divorce.

This conduct on her part was a distinct affirmance of the marriage relation. Necessarily so, since there can, I think, be found no foundation in reason or authority for the position that a woman, who seeks a dissolution of the marriage tie on the ground of her husband's impotence, is entitled to permanent alimony. Such alimony is only given where the husband has been guilty of a matrimonial offence, and impotence is not such an offence in any sense of the word in that connection.

In the present case it is to be observed that neither the impotence nor the desertion is set up in the answer as a defence to the petitioner's bill. Their presence and office is confined to that part of the answer which is declared to be a cross-bill and which prays for a divorce.

The answer was drawn by able and experienced counsel, and I cannot conceive that its frame was the result of oversight or accident. Indeed, the specific prayer in the cross-bill for a

divorce is based on the charge of desertion and not on the charge of impotence.

But supposing counsel for defendant asks the court to amend the answer in that respect, or to consider the charge of impotence to be the basis of the prayer for other relief, viz., dissolution of the marriage, and suppose the adultery is no answer to her charge of impotence, and that charge should be admitted and the defence of acquiescence and ratification be overruled, the result would be that each party would be entitled to a divorce, and they are not within the ban of the statute which declares that if both of the parties are guilty of adultery neither shall have a decree.

Then, I repeat, each party is entitled to a simple decree, and the situation is not changed from what it would be if no assertion of impotence had been made.

But I do not think that the parties stand in this respect on an even footing. On the view of the law most favorable to the defendant the marriage was in force and binding on both parties until the present proceedings were commenced by the petitioner and thence until, at the earliest, defendant filed her cross-bill, asking that the marriage be annulled. This result follows from the fact that it could only be annulled for impotence at her option and on her application. It follows that petitioner was at the filing of his bill rectus in curia, and, having proven his charge of adultery, is entitled to relief.

I am unable to perceive how the defendant can supersede that right by coming in after petitioner's right has accrued and, so to speak, become vested, and asking that the marriage be annulled.

The maxim "He who is first in time is strongest in right" applies.

There is another fact in the case which seems to me to weigh against the defendant in this part of the case.

She alleged and proved that shortly after the separation her husband sued her for divorce on the ground of her adultery; that she defended on the merits and was successful. She does not allege that she set up his impotence as a defence, and the pleadings in that case, put in evidence in this, show that she

And yet, according to the present theory of her counsel, it would have been a perfect defence, or, at least, would have entitled her to a decree of divorce against him in the same suit. She apparently preferred to continue, as she did for ten years at least, to enjoy the benefits of the marriage relation.

I think, therefore, that the charge of impotence must be disregarded and that petitioner is entitled to an order striking it from the record.

Turning now to the charge of cruelty and constructive desertion based thereon.

This issue was not tried, but, at the suggestion of the court, counsel of defendant was asked if the defendant on the admitted facts could succeed.

We observe that it is not set up as a defence to the petitioner's charge of adultery but is inserted in the cross-bill as a basis of affirmative relief against the petitioner, so that it is probably not necessary to consider the simple question whether extreme cruelty of a character sufficient to sustain a decree for divorce a mensa et thoro, standing by itself, is a defence to an action for divorce founded on the adultery of the wife, which question, so far as I know, has never been determined in New Jersey.

The simple question, then, is whether petitioner has been guilty of such desertion of his wife as would enable her to maintain an action against him for divorce a vinculo matrimonii (which I shall assume for present purposes, though, like the other case, I believe, it has never been so held in New Jersey), would, if properly pleaded, be a defence to an action by the husband against the wife for divorce on the ground of subsequent adultery.

The statutory remedy for the wife against the husband for extreme cruelty on his part is a divorce a mensa et thoro and permanent alimony.

It seems, however, to be the well settled doctrine in New Jersey that if the cruelty is of a character sufficient to warrant a divorce a mensa et thoro, the wife may separate herself from the husband, and such separation will be held to amount to a desertion on his part, known as constructive desertion, and if

continued for the statutory period will entitle the wife to a divorce a vinculo.

This doctrine, though frequently stated in our reports by distinguished judges, was first acted on in this state in a reported case in Weigand v. Weigand, 41 N. J. Eq. (14 Stew.) 202. That, however, was a suit, founded on the twentieth section of the Divorce act, for support merely, which involved desertion but not continued for the statutory period to authorize a divorce. and while it was based on the doctrine that a husband who drives his wife away from his house by his cruel treatment of her is guilty of desertion in such manner as to warrant a decree at once in favor of his wife for support, it does not deal with, or throw any light upon, the question as to what must be the character of the continuance of such a desertion in order to warrant a decree a vinculo.

The first and only reported case which dealt with that question is McVickar v. McVickar, 46 N. J. Eq. (1 Dick.) 490.

There the separation had lasted for about twenty years, during which time the wife had received no support from her husband. The cause of the cruel treatment was his devotion to intoxicants acting upon a naturally brutal disposition. The use of intoxicants with their effect upon his conduct continued for three or four years after the separation. He then appeared to reform, but made no attempt to make known to his wife his reformation or to resume his cohabitation with her or to support her. So there was not only the cruelty, which, in the opinon of the court, was a sufficient justification of the wife in leaving the husband, but also a complete failure on his part to furnish her with any support.

I can find no case where there has been a constructive desertion, justified by cruelty, and the husband has during the continuance of the desertion supported his wife, in which a decree a rinculo has been granted.

On the contrary, I find the case of Kyle v. Kyle, 52 N. J. Eq. (7 Dick.) 710, where there was a suit for divorce on the ground of desertion, where the petitioner charged that the desertion occurred in July, 1880, and the petition was filed some ten

years later, and less than a year later she sued him in New York for a divorce a mensa et thoro on account of his cruelty and succeeded. It was held that such decrce was a bar to her action. While that case is not in point I think it has some significance.

In the present case the wife upon her separation, as the evidence, as I recollect it, clearly shows and as was admitted by counsel, accepted from her husband and rested satisfied with a competent monthly support, which was continued up to the time that he learned of her adultery.

In short, she received, without a suit, all that she would have obtained by a suit by reason of her husband's cruelty, and, as I have said, a separation from bed and board and alimony is the statutory remedy for extreme cruelty.

In my judgment, in order to turn a voluntary separation by a wife by reason of cruelty into a desertion by the husband with such a continuance as satisfies the statute, there must not only be the cruelty justifying the separation, but there must be the failure on the part of the husband to render to his wife that support which is the statutory punishment for his cruelty, and that failure must continue for the statutory period.

If this view is correct, the cruelty alleged by the wife, the defendant in this case, will not help her, and it is not worth while to try the issue unless the petitioner, out of abundant caution in case of appeal, prefers to traverse the allegation.

It only remains to say that, supposing the cruelty were judicially established and the monthly payments proven in the case had been awarded by the court as alimony, the continuance of such alimony would be conditional upon the wife living a chaste life.

Under a divorce a mensa et thoro the marriage relation still exists and with it the duty of chastity. Such a divorce is not a license to the wife to indulge in sexual connection with another man, and the argument from the case of a divorce a mensa et thoro to that of a voluntary support and its acceptance is a fortiori. In the latter the court will introduce into