¶1By the Court.
¶2delivering the opinion.
¶3Did the Court err in rejecting the testimony of Mrs. Wynn and that of Mrs. Glass? We think so.
¶4The plaintiff had to make out a case of “ willful and continued desertioif’ of him, by the defendant, “for the term of three years.” Cobb’s Dig. 226. The testimony of these two ladies, was such, that it might have satisfied the jury, that the defendant’s desertion of the plaintiff, was not “ willful •’’ at least was not willful, for the time after the first, or second, year of the desertion, but was compulsory — ivas owing to the plaintiff’s opposition to her staying with him, or to her returning to him.
¶5If he “ was consenting” to the desertion, the desertion was not a ground for a divorce. Cobb’s Dig. 226. And the jury might have inferred from this evidence, if he had been before them, that he was consenting to the desertion — at least for the time subsequent to the first year or two of the desertion.
¶6The testimony, then, ought we think to have been admitted.
¶7As to the question of costs. This is not governed by the costs Act of 1842. That Act was amendatory of the costs Act of 1834, which was amendatory of the costs Act of 1792. This Act of 1792, was anterior in date, to the first divorce Act. Therefore, it could not be, that it gave costs in *284divorce cases brought under the Act; it must- have been that it gave costs only in other than divorce cases. The two Acts amending it, do not add to the cases in which it gives costs, they confine themselves to the cases contained in the original. Act. Therefore, it cannot be, that these two amending Acts regulate costs in divorce cases — or, in dny way, apply to divorce cases.
¶8The question of costs in divorce cases, stands, then, subject to be decided by the common law. And the common law puts alimony, fees to the wife’s counsel, and costs, all on the same footing, and makes the question who is to pay them, depend on the ability to pay them, of the parties respectively. As, however, marriage bestows the wife’s property on the husband, in the absence of a marriage contract, the presumption, prima facie is, that the husband is the only party able to pay them ■, and, consequently, the husband is prima facie, liable to pay them. This he may rebut by showing that the wife is able to pay them.
¶9In the present case, the evidence as to the ability of the parties respectively, if there was any such evidence, is not in the record, and therefore we cannot tell whether the Court did or did not decide the question of costs, according to the principles above stated, as those governing the question. The question however will be opened, as we have to grant a new trial, on the other point; and its final decision can be regulated by those principles.
¶10We therefore do not decide the question about the costs, but merely say, what we do, on the question, to let it be known which way we incline.
¶11New trial granted.