Year: 1861

lRkPoRfKD EXPRESSLY PoR rnR EAsTERN cLARIoNl
Sarah A. Weathersbyl !


by her next friend 9699.


VS..


Owen Weathersby


This bill was fled by wife against her
husband for divorce and alimony, and
for the recovery CT certain slaves in the
possession Of the husband, which She
claims as her separate property, and for
the hire OF certain other slaves her sepe-
rate property for the use of which during
the marriage the husband is sought to be
charged


A demurrer was filed to so much of the
bill as sought to recover from the husband
the possession Of the slaves held by him.
This demurrer was sustained and the bill
dismissed as to those slaves, and from that
decree this appeal was taken, and the only
question here presented for decision is,
whether the allegations of the bill setting
forth the right Of the complainant, if adj
mitted to be true, are sufficient to entitle
her to the relief prayed.


The statements Of the bill touching
this point are in substance, that the par
ties intermarried in the year 1888, and
lived together as husband and wife until
the year 1897, when they separated by
mutual consent and continued to live
apart until the latter part of the year
1889 or the beginning Of the year 1910,
when the dsagreements between them





ton and thau then lived tnGathar from
that time in varied happiness and trouble
until the time of filing this bill, his treat
ment of her having then become 80 in
tolerable as to induce her to file the bill
and to seek recovery of her property
and divorce. Her title TO the slaves in
question is thus stated-that her father
gave her, and she took to her husbands
possession in 1888, two slaves, who with
their increase are sought to be recovered;
and when she and her husband separated
in 1887, that her husband gave up to
| her" those slaves as her own property
again, and under and by reason Of this
surrender by him of his marital rights
therein, she carried said slaves with her
to her fathers house, upon the separation,
where they remained with her as her own
separate property by and with the con-
sent of her husband, and free from his
control, claim or management until their
reconciliation, and her return to his bed
and board as above stated, when she took
with her the slaves and they have remain
ed there ever since, and were in the hus-
bands possession at the time of filing the
bill.


The question presented upon this state
of case is, whether, by his giving up to
her the slaves upon the separation, in the
manner stated in the bill, the title vested
in the husband by the marriage was divest-
ed. and restored to the wife so as to vest
a separate estate in her in virtue OF the
statute Of 1889 in relation to the sepafate
property of married women, and that this
separate estate in her continued notwith-
standing the reconciliation which after
wards took place between them.


II is not stated for what purpose the
slaves we're given up by the husband to
the wife, upon the separation. From the
circumstances of the transaction as stated
it cannot be regarded more favorable to
the right of the wife, than as a provision
for her support upon the separation for
if not supported by that consideration
for aught that appears by the statements
of the bill, it would be without considers
tiosa s.ssi saet Li..l!saS els '.saSSss''"'
Regarding it then, as a provision for her
maintainance upon the separation, that
consideration failed when the reconcllia-
tion took place and the co-habitation Of
the parties was restored, and their rights
wouid be placed in the condition in which
thew stood before the separation. For i
i well settled, that where settlement Il
made by the husband upon the wife iol
a permanent separation, if she return {
her husbands house and protection, sucf
conduct on her part amounts to a tota
extinquishment Of any future claim unde
the settlement, which cannot be revived
by any subsequent disagreement betweel
the parties. Chancy. on Hus. and wit
4O5, 9 Bright Hus. and wife 3l9.
Ii is very clear that the separation
not in law dissolution Of the marriage
but mere suspension Of the relation
ofbusband and wife. Hence areconcilla
? ton restores the parties to the condition
y in which they were placed at the time
the separation, and as between them
ronst nut an end 10 all arrangement


made. or rights conferred, by the HUSBAND
,yitb reference to the separation. When
!. therefore. it is alleged that, upon tn


separation the husband gave up the slave


10 the wife as her separate property, an


surrendered his marital rights therein


The rights acquired thereby by the vii


must be governed and ascertained by tn


nurpose FOR which the slaves were give
= up and when that ceased, the gift all


ceased and his rights we're restored. Henc
IN though a married woman may acquire