19 Abb. Pr. 90 | The Superior Court of New York City | 1864
The defendant claims that this offer of the plaintiff to return to her husband and live with him was a condonation of the injuries complained of, and therefore constitutes a bar to further proceedings in the action.
But I am satisfied, upon an examination of the authorities, that this position cannot be maintained. For the proposed supplemental answer does not aver that the offer of the wife was accepted by the defendant.; and it expressly states that his offer, which was not made until the lapse of seventeen days, and which appears from such supplemental answer to have been a distinct proposition on the part of the husband, entirely unconnected with the offer the plaintiff had previously made to him, was refused by her.
There was no time, therefore, when the minds of the parties met upon the offer on the one side to forgive, upon the specified conditions, and the acceptance of such forgiveness and the performance of those conditions by the other; and an act of con-donation, to be effectual, must be one to which both husband and wife assent, and in which each participates.
An unaccepted offer to return to the matrimonial bed is not, of itself, a condonation, but only an expression of a willingness to condone. In the case made by the supplemental answer, it was at most merely the expression of a desire on the part of the plaintiff to make an agreement with the defendant whereby the injury should be condoned at a future period, and on the latter’s assenting to and performing certain conditions. That was not a condonation. (See 2 Bishop, 347; Popkin a. Popkin, 1 Hagg. Ecc. R., 766; Ferrars a. Ferrars, Ib., 781, n.; Quarles a. Quarles, 19 Ala. R., 363; Peacock a. Peacock, 1 Swab, & Tr., 183.)
Again: the term condonation necessarily includes that operation of the mind, evinced by words or acts, known as forgiveness—the free, voluntary, and full forgiveness and remission of a matrimonial offence. Unless accompanied by that operation of the mind, even cohabitation without fraud or force is in
In this case it appears to me there is no evidence of an intention on the part of the wife to forgive her husband voluntarily and to reinstate him in her affections, nor even to abandon her suit. But, on the contrary, it is quite clear that her offer to the defendant was made for the purpose of obtaining a support for herself and her child during the pendency of the suit, and because the order of the court required her to do so, as a condition upon which such support was to be obtained. It was intended by the court as a substitute for an award of alimony during the progress of the suit, and was so accepted and acted upon by the plaintiff.
The proposed supplemental answer, therefore, would have constituted no defence, and, for that reason, the rejection of the petition was proper.
The order should be affirmed, with costs.
