In the opinion filed December 19, 1933, this Court treated the bill as having been filed under Section 3197 R. G. S., 4989 C. G. L., which reads as follows:
"If any husband having ability to maintain or contribute to the maintenance of his wife or minor children shall fail to do so, the wife, living with him or living apart from him through his fault, may obtain such maintenance or contribution upon bill filed and suit prosecuted as in other chancery causes; and the court shall make such orders as may be necessary to secure to her such maintenance or contribution." *Page 250
Upon reconsideration of the whole record it seems to me that the bill should be construed as attempting to state a case under Section 3196 R. G. S., 4988 C. G. L., which reads as follows:
"If any of the causes of divorce set forth in Section 4983 shall exist in favor of the wife, and she be living apart from her husband, she may obtain alimony without seeking a divorce upon bill filed and suit prosecuted as in other chancery causes; and the court shall have power to grant such temporary and permanent alimony and suit money as the circumstances of the parties may render just; but no alimony shall be granted to an adulterous wife. (Ch. 3581, Feb. 14, 1885, Secs. 1, 2.)"
The proof was offered by the complainant below and apparently received by the Chancellor on the theory that the issue to be tried was that which could only arise under Section 4189 C. G. L., rather than 4188. Because of this circumstance, I think the decree here appealed from should be reversed on rehearing on the authority of Schmitt v. Bethea,
To maintain a suit under Section 4189 C. G. L.,supra, the wife must be willing to live with her husband, although she is not precluded from relief if she is not living with him, provided she can show it was and is through the husband's fault that she does not do so. The suit authorized by this section is in the nature of an equitable suit for specific *Page 251 performance of the husband's marital duty to render his wife support, the right to which she has not lost or forfeited. On the other hand, the right to the relief authorized by Section 4188 C. G. L., supra, is in the nature of a limited divorce and is only authorized under circumstances that divorce itself is authorized. The distinction between the rights arising under each of these sections, and the relief to be awarded, should not be ignored, nor confused.
In this case, for a part of the time at least, the separation of the parties was by their mutual wish and acquiescence.
WHITFIELD and ELLIS, J. J., concur.
