for the misnomer; but this is one of the cases where perhaps aid can not well be derived from precedent. Is the sound the same? is the question. This must depend in many cases upon the manner in which we place the accent upon the syllables composing the word. In the case before us, the first is the accented syllable; the middle syllable, in which the variance is supposed to exist, is scarcely heard—so indistinctly at least as to require the most delicate ear to detect the want of identity in the sound of the two vowels. We think the difference in the sound, if any exists, too refined ordinarily to be observed, and that the variance in the spelling does not constitute a substantial misnomer: Ahitbol v. Beniditto, 2 Taunt. 401; 2 Russ. on Cr. 715, marg. But it is contended that the improper insertion of the middle letter "L." in the name constitutes a misnomer. We do not think so. There are, it is true, authorities which go to that extent, but we think the better opinion is, "that the law knows only of one Christian name," and that the middle letter forms no part of it, so that its insertion or omission makes no difference, and may be disregarded. Such was the clear indication given by the supreme court of the United States, in Keene v. Meade, 3 Pet. 7; see also Franklin et al. v. Talmadge, 5 Johns. 84, citing Co. Lit. 3 a; Rex v. Newman, 1 Ld. Raym. 562; Vin. Abr., tit. Misnomer, c. 6, pl. 5, 6; Roosevelt v. Gardinier, 2 Cow. 463. Let the judgment be affirmed.

DOCTRINE OF IDEM SONANS is fully discussed in the case of Schooler v. Asherst, 13 Am. Dec. 232.

MISNOMER IN INDICTMENT, EFFECT OF: See State v. Patterson, 38 Am. Dec. 699, where the names "Diadema " and "Deadema " were held identical in an indictment for bigamy; also Donnel v. United States, 39 Id. 657, where the "Donald" and "Donnel" are held to be different, and the writing of the former where the latter was intended was fatal to the indictment. NAME, MIDDLE LETTER NO PART THEREOF: See Hart v. Lindsey, 43 Am Dec. 597, note and references.

names

"JUNIOR" NO PART OF NAME: See Padgett v. Lawrence, 40 Am. Dec. 232, and note thereto with numerous references.

HARDIN V. HARDIN.

[17 ALABAMA, 250.]

ACTION FOR DIVORCE BY HUSBAND UPON GROUND of Voluntary DesertioN can not be maintained where it appears that the wife's abandonment was caused by unfounded accusations of unchaste conduct.

JOHN HARDIN, the plaintiff, filed his bill for divorce against Susan Hardin, his wife, upon the ground of three years' voluntary

abandonment. The remaining facts appear from the opinion. The bill was dismissed by the chancellor, which ruling is now assigned as error.

Ormond and E. J. Jones, for the plaintiff.

Brickell and C. C. Clay, jun., for the defendant.

By Court, PARSONS, J. It is settled in England that malicious desertion is no cause for a divorce. For this there is a remedy there in the ecclesiastical courts, by a suit for a restitution of conjugal rights. This remedy does not exist here, but it is enacted that if a wife voluntarily leave her husband's bed and board for the space of three years with intention of abandonment, this is sufficient cause for a divorce in his favor: Clay's Dig. 170, sec. 3. The defendant in the present case certainly left her husband and remained away for three years and more before this suit was brought; but the question is, whether she did so voluntarily, within the meaning of the statute. This must be determined by the evidence. It clearly appears by the depositions that she left and remained from him as already mentioned: that she knowingly left and remained away against his wish, and that she refused to return, though requested by him to do so. But it also appears that she left him because he accused her of criminal intercourse with other men, and it does not appear that there was any cause for the charge, or that he ever retracted it: on the contrary, it appears that at the very time he was desirous of her return, he in effect repeated his suspicion of her guilt in the neighborhood; in such a way, however, as to show that there had never been conclusive evidence of it even in his own mind. It is therefore clear that so far as she had cause to leave him, she had cause to remain away from him. Did she leave and remain away voluntarily? If the husband look to England, whence almost all our laws come, for authority to sustain his application for a divorce, he fails; and coming to our statute he finds that he is not sustained, unless she left him voluntarily, or of her free choice. Can he be heard to say that she left and remained from him voluntarily, when he had made it necessary for her to choose between the abandonment and the most wretched state of human existence that of living with a husband who had accused her of unchaste conduct, and this, so far as there is any evidence, without the smallest cause? We feel that we can acquit our legislature of the error of using the word "voluntary" in such a sense. The case then is, that she left him for his groundless charge; that he never retracted but repeated it, and

that for this cause she refused to return. She would neither degrade herself nor him by living with him under such circumstances, although, as the proof shows, she declared her attachment for him at the very time of the separation.

We are far from saying that this accusation is a ground upon which the defendant could have obtained a divorce from her husband. However groundless and cruel, it was not sufficient for that purpose. But our opinion, from the evidence, is that it was the cause of her leaving and remaining from him unwillingly-hence, that she did not leave or remain away voluntarily, but under an unhappy necessity which he created and continued; and for this reason his cause of divorce fails. She does not set up a distinct matter in bar of his claim to a divorce, but she makes her excuse for leaving him a part of the ground which he relies on for a divorce, and taking the fact of the ground and of the excuse together, there is, we think, no cause for a divorce. This view distinguishes this case from some of the cases relied on by the plaintiff's counsel, in which distinct matters were set up, and in which it was held that they must be sufficient causes of divorce of themselves. We do not say but that if he had proved a ground for his suspicions, or retracted them and assured her of his confidence, he would have been entitled to a divorce. From the evidence, it is more than probable that if he will yet retract his charge and assure her of his confidence she will live with him. She has proved that she has a deep sense of her injury, by refusing for so long a time to live with him, although she acknowledged her attachment for him at the time of the separation. This ought to make him doubt the cause of his jealousy, and if this suggestion should lead to a reconciliation, it is far better than a divorce.

It is true, as contended by the plaintiff's counsel, that a man under the circumstances of this case may, in the ecclesiastical courts, have a suit for the restitution of his conjugal rights, in which the wife will be compelled to return to cohabitation unless she can plead a fact in bar which will entitle her to a sentence of separation, and that no facts are sufficient to bar the proceeding except such as are sufficient as a ground for a divorce in an original suit. But in such cases the sentence of the court usually enjoins the husband to receive his wife home in that character, and to treat her with conjugal affection and to testify the same to the court; and the consequence of non-compliance with the decree of the court is excommunication and imprisonment; and the monition is that the husband shall not only take her

back, but that he shall treat her with conjugal kindness: Shelford on Marriage and Divorce, 574-582, and authorities cited. According to the ecclesiastical law, the defendant in this case could not plead her husband's charge of infidelity against her, in bar of a suit for restitution of his conjugal rights, inasmuch as she could not for that charge alone have obtained a divorce; nothing short of that being a good plea in bar to a suit for restitution of conjugal rights. Why was that? It was because the contract of marriage was of the highest degree of solemnity, of the greatest obligation. But if in this case it is to be dissolved because she left and remained from him for the most grave and groundless provocation on his part, then the marriage contract is of the least degree of obligation. The plaintiff's counsel will perceive that their argument puts it in the power of every husband to drive his wife from home by groundless accusations of the kind, and then to claim a divorce for the abandonment. This would bring the marriage contract to a very low degree of obligation and completely subvert the principle upon which the ecclesiastical courts have proceeded: See Gray v. Gray, 15 Ala. 779.

Let the decree be affirmed.

CONDUCT PROVOKED BY LIBELANT IS NOT SUFFICIENT GROUND FOR DIVORCE: See Poor v. Poor, 29 Am. Dec. 664.

OTEY, ADM'R, v. MOORE.

[17 ALABAMA, 280.]

LIEN WHICH PLAINTIFF ACQUIRES UPON GOODS OF DEFENDANT, by the de livery of an execution to the sheriff, does not vest a title in him, but simply a right to subject the property to the satisfaction of his debt. BY SUSPENDING RIGHT TO HAVE EXECUTION ISSUED, the lien of the prevailing party in an action, upon the goods of the judgment debtor, is also suspended.

DURING SUCH SUSPENSION, BONA FIDE PURCHASER FOR VALUE acquires title superior to the lien of judgment creditor.

ACTION to determine the ownership of a slave. He was in the possession of James G. Carroll, against whom an execution was issued in favor of plaintiff. The slave is claimed by defendant in error. The remaining facts appear from the opinion.

S. D. J. Moore, for the plaintiff.

Peck, for the defendant.

By Court, DARGAN, C. J. An execution issued in favor of the plaintiff against James G. Carroll, and was placed in the hands of the sheriff of Tuscaloosa county, who levied it on the slave in controversy, which was then in the possession of Carroll. After the levy was made, the sheriff entertaining doubts whether the slave was liable to be sold under the execution, demanded of the plaintiff a bond of indemnity to protect him against the consequences of a sale. The bond not being given, the sheriff discharged the levy and returned the slave to the possession of Carroll, and returned the execution to the court from which it issued. Another execution was afterwards issued and placed in the hands of the sheriff, and a bond of indemnity was then executed. This latter execution was issued and put in the sheriff's hands in a short time after the term of the court to which the former was returned, but in the mean time between the return of the former execution and the receipt of the latter by the sheriff, Carroll sold the slave to Moore, the present claimant, for a valuable consideration and without notice, and the question is, whether the title of Moore or the lien of the execution is to be preferred.

The lien created on the goods of the defendant by the delivery of an execution to the sheriff does not give the plaintiff a title to the property bound by the lien, but simply a right to subject the property to the satisfaction of his debt. When this right to have the property sold is taken away or suspended, one who purchases the goods bona fide, during the suspension or destruction of the lien, obtains a title that must be preferred to the lien of the execution, although it be afterwards revived.

This is the conclusion we attained in the case of The Branch Bank v. Ford, 13 Ala. 431. In that case an execution had been received by the sheriff, and was returned satisfied by mistake of the plaintiff's attorney. Another one was subsequently issued, but in the interim between the return of the former and the issuance of the latter, the defendant sold a slave to Ford. The court held that the title of Ford was superior to the lien of the execution. So, too, it is well established by the decisions of this court, that the lien of a judgment on the lands of the de fendant results from the right to issue an execution on the judg ment, and anything that takes away this right is a destruction of the lien: Burks, adm'r, v. Jones and Allen. Id. 167. It is then only necessary to ascertain whether the right of the plaint iff to subject the slave to the satisfaction of his execution was suspended at the time the defendant purchased. When a sherif