act that first conferred jurisdiction on the court of chancery to grant divorces in this state; and from that time to the present, in the multitude of applications for divorces for varisus causes, we are not aware that it has ever been held, or even suggested, that the habit of drunkenness, of either man or woman, was sufficient ground per se for a divorce. It may, no doubt, in connection with other grave offenses against the marriage relation, be considered as an element in the habit and conduct of the party complained of; but as an independent ground, drunkenness has never been considered, either in this state or in England, as furnishing cause to justify a divorce. It is true, in some of the states of this Union, there are statutes that make habitual or continual drunkenness a cause for divorce; and we must suppose that if it had been the intention of the legislature of this state to make drunkenness a cause of divorce, it would have been so expressly declared, and not left to doubtful construction or implication. If the terms of the statute were construed to embrace such a cause of divorce, it would, of course, have mutual application; that is, it would furnish ground for divorce, upon the complaint of the wife against the husband, equally as upon the complaint of the husband against the wife; and so it would apply to all grades and conditions of society. And if the statute were so construed, and the courts opened to applications founded upon that cause, it would not be difficult to foresee that applications for divorces would immensely increase, with all their attendant evil consequences, and that facility would be furnished for obtaining divorces that has not hitherto been supposed to exist.

In this state it has been repeatedly declared that the marriage relation is not to be disturbed for any but the gravest reasons, and only upon such state of facts as show to the entire satisfaction of the court that it is impossible that the duties of the married life can be discharged. Public policy and morality alike condemn these judicial separations of husband and wife, except where it cannot be avoided; for, as it has been justly said, such separations throw the parties back upon society in the dangerous character of a wife without a husband, and a husband without a wife. The court, therefore, is always very reluctant in any case, and it should be specially so in a case like the present, to interpose to separate the parties, where it can perceive that the evil complained of may possibly be corrected by the exertion of proper influence, or

such reasonable authority as the nature of the case may justify. And this is a principle upon which courts of the highest authority have proceeded.

In the case of Scott v. Scott, 29 L. J., N. S., 64, the facts were quite analogous to the facts of this case, though somewhat stronger in support of the application of the husband. There the husband petitioned for separation from his wife on the ground of her habits of drunkenness and consequent bad conduct. It appeared that the wife, when under the influence of drink, was sometimes violent and impatient of restraint, or attempted restraint, of her husband; and the habit continued for many years, until finally the husband left the house, taking his daughter with him, in consequence of the conduct of the wife. On the case thus presented, the court, treating the wife's drunkenness as the direct and primary cause of her acts of violence, dismissed the petition. The learned judge said: "Having carefully considered the evidence, I think I must dismiss the petition. No doubt the respondent is a drunken, profligate woman, likely to make her husband's house very miserable. But I cannot avoid seeing that the real ground of the application is, that the husband wishes to get rid of a drunken wife, and I must be cautious about opening the court to cases of that description. The wife may have an unruly propensity in her drunken fits to destroy property, but there is no evidence of such sævitia as would justify me in decreeing judicial separation.”

And so in the case of Brown v. Brown, L. R. 1 Pro. & D. 46. In that case, the application was by the wife against the husband for a decree of separation, upon the ground of habitual drunkenness of the husband, and it was held by Lord Penzance that habitual drunkenness and a series of annoyances and extraordinary conduct on the part of the husband did not constitute legal cruelty, to justify judicial separation. His lordship, in the course of his opinion, said: "The court is not permitted to indulge its feelings at the expense of unsettling the law or break with the decided cases to sympathize with the petitioner's misfortunes. A decree that should establish habitual drunkenness to be of itself ground for judicial separation would be likely to have a wide application."

The same principle was acted on in the case of Mason v. Mason, 1 Edw. Ch. 284, in which the opinion of the vice-chancellor was affirmed by the chancellor. In that case the application was by the wife against the husband for a divorce

a mensa et thoro, upon the ground of habitual intoxication; and the court denied the application, and in its opinion, said: "Frequent intoxication constitutes the principal, if not the only, source from whence has proceeded the misconduct of which the wife complains. I cannot admit this propensity, or the occasional or even frequent indulgence of it, to be of itself a sufficient ground for a bill of this sort. The court is not to add to the deplorable consequences of intemperance by making it, however excessive, the sole cause of severing the conjugal tie."

The evidence in this case exhibits a domestic state well calculated to excite sympathy for the husband. The broils in his family, made by the wife with his mother, the gross and revolting language of the wife upon these occasions, and the very reprehensible methods resorted to by the wife to procure liquor to gratify her thirst, were all facts well calculated to produce disgust and extreme mortification in a husband possessed of any degree of refinement. But all this conduct was that of an unfortunate woman who had become addicted to the habit of occasional intoxication, and the proof shows that it was only when she was under the influence of strong drink that she was guilty of the gross improprieties referred to in the evidence. And however deplorable this state of things may be, it is quite certain that the courts cannot interfere to furnish relief against all the troubles and distresses that may exist in the matrimonial relation. By far the greater number of these must be left to the good sense and judicious management of the parties themselves. The husband must exert his influence and authority over the wife for the correction of her bad habits. As has been said by a great authority (Lord Stowell), it is the law of religion, and the law of the country, that the husband is intrusted with authority over his wife. He is to practice tenderness and affection, and obedience is her duty. Within and by a proper observance of this principle, it may be hoped that the husband will be able effectually to restrain the unfortunate habit in his wife, of which he complains, and to restore the happy relation between the wife and himself that formerly existed.

It results from what we have said, that the decree of the court below must be reversed, and the bill be dismissed, with costs.

DIVORCE.

Drunkenness, though long and continued, and even excessive, is not of itself such cruelty as will constitute a ground for divorce: Note to Morris v. Morris, 73 Am. Dec. 628.

DOUGHERTY V. MOORE.

171 MARYLAND, 248.]

TO CONSTITUTE VALID GIFT BETWEEN LIVING PARTIES, THERE MUST BR DELIVERY of the subject-matter of the gift with the intent on the part of the donor to transfer the right of property to the donee or to some one for his use; the donor must renounce and the donee must acquire the title and interest in the property given. An entry, therefore, made by a husband in a pass-book of a savings bank, to the effect that, in consid eration of his love and affection for his wife, he gave her all the money credited or to be credited to him in the book, where, after the making of such entry, he continued to make deposits and to draw from the fund, from time to time, as he saw fit, does not constitute a valid gift to the wife of the money on deposit. Nor does it operate as a testamentary disposi tion thereof, because it is not executed as the law requires.

ACTION brought to determine the title to certain sums of money. The court below decreed that the funds in controversy belonged to the estate of Lawrence McDonald, deceased. Other facts are stated in the opinion.

Fetter S. Hoblitzell, for the appellants.

Frederick W. Story and Edward Otis Hinkley, for the appel

lees.

ROBINSON, J. This is a controversy in regard to the title to two funds, or sums of money, held on deposit by the Eutaw Savings Bank of Baltimore and the Savings Bank of Baltimore, and claimed, respectively, by the administrator of the wife and the administrator of the husband.

McDonald, the husband, opened an account in the Eutaw Savings Bank in 1864, and running down to 1887, when he died. The account was opened in his own name, and so continued till the 19th of February, 1868, when the name of his wife was added; and thereafter, the entry in the pass-book of the bank and in the ledger of the bank read:

"Lawrence McDonald.

"Sarah McDonald, and the survivor, subject to the order of either."

On the 4th of January, 1876, the following entry was also made: "In consideration of my natural love and affection for my wife, Sarah McDonald, I give to her all the money belonging to me credited or to be credited in this book, and I direct the same be paid to her, and her receipt shall be good for the same. "LAWRENCE X MCDONALD."

His

mark.

After these entries were made, McDonald continued to make deposits from time to time, and to draw money on account of the same, as his wants or convenience required, the sum of six hundred dollars being drawn by him two days only before he died.

His wife also drew money from time to time, upon her presenting the pass-book to the bank, and having the several amounts credited thereon, as required by the rules and regulations of the bank.

The husband and wife died on the same day, the wife surviving her husband little more than one hour.

The question, and the only question, it seems to us, is, whether there was a valid gift by the husband to his wife, of the money held on deposit by the bank.

All agree that, to constitute a valid gift between living parties, or gifts inter vivos, as they were distinguished by the civil law, there must be a delivery of the subject-matter of the gift, with the intent on the part of the donor to transfer the right of property to the donee, or to some one for his use. The donor must renounce and the donee must acquire the title and interest in the property given. So long as there is a locus pænitentiæ in the donor, the right to change his mind, to modify or revoke it, the gift is incomplete. As was said by Gibbs, C. J., in Bunn v. Markham, 7 Taunt. 214: "There is no case which decides that the donor may resume the possession, and the donation continue." Nor will the mere fact of possession in itself be sufficient; but it must appear that such possession was acquired with the consent of the donor, and with the intent on his part to relinquish all right and interest in the subject of the gift, and making it the property of the donee. These are familiar principles, about which there can. be no contention.

"If the thing be not capable," says Chancellor Kent, "of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession but with the dominion of the property ": 2 Kent's Com. 439.

Here the subject of the gift is money on deposit in a savings bank, and it is admitted there was no actual delivery of the money itself by the husband to the wife. If so, the question then is, whether the act or acts of the husband are in a legal sense equivalent to an actual delivery of the money. Wel shall not stop to consider whether an assignment, in writing, and delivery to a donee of a pass-book of a savings bank, by