Smith v. Smith. sible for debts contracted by her. He charges extreme cruelty in her treatment of him and frequent infliction of bodily injuries, and reasserts the assault committed on him on the 2d of March, in what appears to have been a scrambling quarrel for the possession of the certificate of bank stock. It will be observed that this answer sets up no adultery, nor does it allege any willingness on the part of the defendant to resume cohabitation with his wife. That cause was brought to a hearing and a decree was made. on the 24th of January, 1895, in favor of the complainant, that defendant pay her $400 a year, commencing with the 2d of March, 1894, and ordering the defendant to give bond, with security, to insure the payment. The decree recites "that the defendant, without justifiable cause, abandoned and separated himself from his wife, the complainant, on the second day of March, eighteen hundred and ninety-four, and has ever since refused, and still refuses, to maintain and provide for her." On the hearing of this cause I held that the pleadings and decree in that cause were conclusive that the defendant did separate himself from his wife on the 2d of March, 1894, and refused to permit the defendant to contradict that fact; but, subject to further consideration, I permitted the defendant to offer proof, first, of his subsequent bona fide offers to resume cohabitation and live with his wife and support her in the ordinary way, and second, to prove the adulteries charged in his answer and crossbill. The defendant made no attempt to sustain the charge of adultery, but did attempt to prove that he had offered to resume cohabitation with the complainant. In support of that allegation the defendant swears that on the 3d of March, and several days subsequently, he returned to the house where his wife was living and asked her if she would not have him come back and live with her, and that she declared that she never would live with him again. This asking to come back and live with her was positively denied by the wife, and I find her quite as reliable as a witness as he. The husband Smith v. Smith. further swore that he did remove his belongings from day to day, commencing on the day after the 2d of March, until he had taken them all away from the house where his wife lived except one bedroom suit, which he said belonged to him but which he left for her use. The only other proof of any offer on his part to resume cohabitation with his wife was in the shape of a letter which he wrote to her some time in September, 1894, and shortly prior to the actual hearing of the suit then pending between them before Advisory Master Williams. They have lived near each other ever since and have never spoken to each other. In order to understand the force and effect of the letter in question, it is necessary to state other facts that are proven or admitted either by counsel in open court or by the pleadings in the two causes. The defendant is, apparently, the only child of a wealthy gentleman of Monmouth county, who lived in Middletown township, not far from Red Bank, and was at his death, which occurred some time after the marriage of the parties, the owner of two farms and considerable personal property. By his will he devised the homestead farm, containing about one hundred acres, to his wife for life, and at her decease to go to his son, the defendant. He also devised to his son a second farm, containing about two hundred acres, in the possession of one Quigley as tenant, and spoken of in the evidence as the Quigley farm. This is a farm of considerable value and produced a competent rent. He also left him personal property, including a certificate of bank stock, which at one time was worth nearly three hundred per cent. and attained a value of nearly $5,000. Some time after the father's death the complainant induced the defendant to make a conveyance to her of the Quigley farm, in which he had a present estate, but in the conveyance the defendant reserved to himself the use of that farm for his own life, so that the settlement gave the wife no present income. The wife swears, and it is hardly disputed, that the husband was thriftless and incapable of carrying on successfully any business, and his appearance on the stand indicates that she was Smith v. Smith. right in this; and she swears that he furnished her with very slender living and support during the whole of their cohabitation; that after she had acquired the title to the Quigley place, having no comfortable place to live, the defendant's mother having married a second time and desiring to occupy the homestead, the husband, at the request of his wife, built a comfortable cottage on the Quigley place, which they occupied together. Subsequently, the defendant's mother having removed from the homestead, the parties went there to live and were living there at the homestead farm (the present use of which belongs to the defendant's mother) on the 2d of March, 1894, when they separated. The quarrel which was the immediate cause of their separation arose over the possession of the bank stock. The wife heard the husband rummaging in the storeroom where their valuable papers were kept, and not desiring him to get possession of the bank stock and spend the proceeds, she attempted by violence to prevent him, and the result was that he overpowered her, got the certificate of stock, took it away and transferred it to his mother, who swears that she sold it to pay his debts, among others a debt which he had incurred in building the cottage on her farm. At the same time the defendant conveyed to his mother his title to the homestead farm in consideration of her entering into a covenant to support him comfortably during his lifetime. He also gave her a general power of attorney to transact his business; in fact, submitted himself entirely to her control and guardianship. At the hearing the defendant appeared to be dressed as an ordinary gentleman, showing no appearance of being engaged in any business or occupation whatever, and on the stand appeared to be of slender intellect. The difficult question in the cause is as to what effect should be given to the evidence of the wife given in answer to questions in connection with the letter written by defendant to her in September, 1894. The substance of the letter is as follows: He requested her to come over to the Quigley house, at a certain hour on a day Smith v. Smith. named, to sign papers transferring to him her title in the Quigley place, and then used the following language: "Will you compromise the lawsuit and come back and live in the cottage?" The complainant, when asked on the stand what she did in regard to that letter, answered that she did nothing whatever, did not answer it; and asked by me why she did not, answered that she was unwilling to live with her husband again, and that her parents would not permit her to live with him again; that she was afraid of him; that he had pinched her and tickled her and had slapped her. On a subsequent hearing complainant produced a respectable lady, whose evidence I see no reason whatever to doubt in the least, who visited the parties as a friend at times but on other occasions as a seamstress, and she swears that on one occasion while she was at their house the husband came in and sat down to the tea table in a violent temper, and misbehaved himself by shoving the plates around against each other on the table, and behaved, generally, in an indecent manner, and that his wife complained and said she could not sit at the table, and arose; that thereupon the husband arose and struck her and caught her by the arm and attempted to pull and drag her and put her out of the door, declaring that he would do so, but she caught with her hands to a heavy chair, and by reason of her tenacity to that chair he was unable to get her out of doors. This witness says he then and at other times exhibited considerable temper, and she had seen him at other times punch her with his fingers, not in fun but, as she says, in anger, and she expressed it in such a way that I have no doubt it was in anger. Now I think that the mere writing of the letter in question does not improve the position of the defendant. After the occurrences of March 2d, 1894, and the actual abandonment of his wife and withdrawal of support, with the insertion of the insulting notices in the two newspapers, and the permitting her to be ejected from their dwelling, and the putting of himself— properly enough—and his affairs under the complete control of his mother, if he sincerely desired to resume marital relations and live with his wife, and love and cherish her as a husband Smith v. Smith. should, something more was necessary to be done by him in order to accomplish that result than the mere writing of the letter in question. He should have gone himself, or should have procured some other proper person to go to her, who could show her reasonable grounds to believe that he would act the part of a husband towards her, and that he would do it by the consent and approbation of his only parent, for it was idle for the wife to go to live with him unless is was to be an harmonious living, and unless that cohabitation had the approval and support of his mother. It was unreasonable to ask her to resume cohabitation with him unless she was assured of a proper support, and she could only be assured of that through the cheerful co-operation and approval of his mother. Therefore, if he really wished, and had any reason to hope, to resume cohabitation with his wife, it was necessary for him to do a great deal more than appears on the face of that letter. Hence, I conclude that he has not put her in the position of having refused a reasonable request to resume cohabitation. The difficulty in the case is not that the defendant has made an offer to return, which has been refused, but is found in the frame of mind and the feeling of this lady, which were developed by her examination. The burden is on the defendant, in my judgment, to show that his desertion worked no injury to his wife, because she did not wish him to live with her and she did not wish to live with him, and a person who is willingly injured is not injured. Volenti non fit injuria is the principle. But that maxim, in my judgment, does not apply here if, as a matter of fact, the defendant himself is responsible for the feelings of aversion entertained by the wife. If he, by his conduct, has alienated her affections and given her good cause to dislike him and to have no desire to live with him, he cannot take advantage of those feelings to excuse himself for a continued desertion without any serious and honest effort to terminate it. The question then is, was the defendant responsible for his wife's dislike of him? The complainant knew the defendant and his peculiarities before she married him, but she could not |