Mere non-support is not always desertion; Bourquin v. Bourquin, 33 N. J. Eq, 7; Davis v. Davis, 1 Hun (N. Y.) 444; but if the hus band have the means to support his wife, and does not do so, this is a wilful desertion; James. v. James, 58. N. H. 266; see Van Dyke v. Van Dyke, 135 Pa. 459, .19 AU. 1061.
Refusal of sexual intercourse is not deser tion ; Pfannebecker v. Pfannebecker, 133 la: 425, 110 N. W. 618, 119 Am.. St. Rep. 608, 12 Ann. Cas. 543 ; Williams v. Williams, 121 Mo. App. 349, 99 S. W. 42; Prall v. Prall, 58 Fla, 496, 50 Smith. 867, 26 L. R. A. (N. S.) 577; Pratt v. Pratt, 75 Vt. 432, 56 Atl. 86 (even for three years and without' physical ex cuse); Reynolds v. Reynolds, 68 W. Va. 15, 69 S. E. 381, Ann. Cas. 1912A, 889; physical condition may justify refusal; Pfannebeck er v. Pfannebecker, 133 Ia. 425, 110 N. W. 618, 119 Am. St. Rep. 608, 12 Ann. Cas. 543; other cases hold' it desertion; Raymond v. Raymond (N. J.) 79 Atl. 430 ; Graves v. Graves, 88 Miss. 67T, 41 South. 384 (desertion for three years, followed by return and re fusal); Sisemore v. Sisemore, 17 Or. 542, 21 Pat. 667; 83 L. T. R. 224. A wife wbo, without cause, TefuSes, cannot set up "deser tion without reasonable cause ;" [1901] P. 317.
Involuntary absence, on account of sick ness or business, if not prolonged beyond such a time as is reasonable or necessary, will 'not constitute' desertion; 1 Swab. & T. 88; Neely v. Neely, 131 Pa. 552, 20 AU. 311; or the confinement of a wife in a lunatic asylum; Pile Pile, 94 Ky. 308, 22 S.' W. 215. There can be no such thing as deier tion by both parties ; Wass v. Wass, 41 W. Va. 126, 23 S. E. 537. When a wife is de serted, she need not hunt for her husband or go to the place whence he has fled ; Maio witsch v. Millowitsch, 44 Ill. App. 357.
Where parties marry clandestinely and on an agreement to live separately for the pres ent, the separate living is not a desertion by the husband until the viife demands that they should live together; NicAllister v. Mc
Allister, 71 N. J. Eq. 13, 62 Atl. 1131.
In England it is held that if a wife refuses to live under the same roof with' beg hus band, except upon his undertaking not to exercise his full marital rights, he is justified in separating himself from her, and is not guilty of desertion without reasonable ex cuse, even though be may have committed adultery while separated from her ; [1901] P. 317.
Desertion is not to 'be tested merely by as certaining which of the parties left the mat rimonial home first. That fact may be im material. The; party who by his or her act intends the cohabitation to an end commits the desertion ; [1899] P. 278. There is no substantial difference between a husband who puts an end to cohabitation by leaving his wife, and a husband who puts an end to it by persisting in a course of con duct which obliges his wife to leave him; [1899] P. 221, 278, where it was held that a husband's conduct amounted to desertion al though he did not abandon her or actually force her to leave his house, but refused her request to discharge a servant with whom he had immoral relations or to dis continue such relations. In such a case it is held the husband must be taken to intend the consequences of his own act. The situa tion is the same as if he had left her, and if the attitude of the parties remain the same for two years the desertion is com plete; 33 L. J. P. 66; 62 L. T. 330 ; 68 L. J. P. 91.
If husband and wife have ceased to co habit whether by the adverse act of the hus band or wife or by the mutual consent of both, desertion becomes from that moment impossible to either, at least until their com mon life and home have been resumed. There cannot be a desertion by the husband unless the cohabitation is broken by some act of desertion; [1904] P. 389.
The Family Desertion Act has been passed in Kansas, Wisconsin, Massachusetts and North Dakota.
See 9 L. R. A. 696, note ; Tiffany ; Schoul er, Dom. Rel.; DIVORCE ; LEGAL CRUELTY.