39 N.J. Eq. 148 | New York Court of Chancery | 1884
These parties are before the court in cross-suits. Each seeks a. divorce from the other on the ground of adultery. They were married in June, 1867. For some time prior to their marriage they lived together as husband and wife, falsely representing to their parents that they had been married. A child was born to1 them out of wedlock. After their marriage, the husband took his wife and their child to the home of his parents in Jersey City, where they continued to live, as part of his father's family, until June, 1880, when the husband rented a house at Rutherford, and removed his wife and their five children to it. He did not go there to live himself, but remained in Jersey City, visiting his family at Rutherford irregularly, sometimes once a week, and at others at longer intervals, and for some months immediately before the commencement of his su-it he ceased his visits
There can be no doubt whatever that one of the husband’s •objects in removing his family to Rutherford was to place his wife in a situation where she might be constantly exposed to the most vigilant espionage. But this was not his only object. The evidence leaves no doubt on my mind that he wanted his wife to commit some offence against her conjugal duty,- which would -enable him to get rid of her, and that if her evil propensities would not lead her into actual crime, he was willing that she should be lured into such a course of conduct as would warrant the legal presumption that she had committed adultery. The -case made against the wife is of the latter sort. There is no proof •of actual guilt, but the proof against her consists entirely of
Before proceeding to consider the evidence against the wife, it should be stated that she is charged with having committed adultery with eight different men between February 10th, 1881, and October 9th, 1882. Six of the eight are described as unknown. Nine different spies or detectives have, at different times, during a period of two and a half or three years prior to the institution of this suit, been employed to watch her, to see if evidence of guilt could not be obtained against her. Her life, almost constantly during that period, has been subject to a close surveillance, by persons naturally eager to discover what they were hired to find. The period covered by the espionage, as well as the number and character of the persons employed to-make it, shows a persistency on the part of the husband which evinces either that he was firmly persuaded of his wife’s guilt, or that he had made a desperate resolve that a case should be made against her, though she was pure and guiltless. His efforts to discover evidence of guilt were of a character which should excite the most jealous vigilance of the court. A person employed for money to discover evidence to establish any fact, is naturally eager to attain his object, and whether such be the arrangement in fact or not, he is very likely to believe, especially in a case like this, where his employer has the deepest interest in his success, that his reward will to a very large extent depend upon, the success of his efforts; while evidence emanating from such a source cannot be rejected as unworthy of credit, it is manifest, that the security of the citizen, and the safe administration of justice; both demand that the court should examine it with the utmost caution, and never act upon it until it has been tried by the most vigorous tests. ■
The only proof against the wife which lays the’ slightest foundation for a judgment of divorce, is that which shows that she visited two different brothels, and made two visits to a bed-house, or a place kept for illicit sexual intercourse. There is no-
Among the spies exnployed by Mr. Cane to watch .his wife, was one named Edward Scott. Mr. Cane says he made Scott’s acqxxaintance at the office of his counsel, in February, 1882, and after that, from March until the following August or September, he was constantly in Mr. Cane’s exnploy. Scott took up his residexxce in Rutherford about the 1st of May, 1882, under the name of Edward Williams. He px’etended to be a broker, engaged in . business in New York city. When he appeared at Rxxtherford, he was accompanied by a woman whom he represeixted to be his wife. They pretended that they had been married shortly before. The woman was not his wife. He had a wife living in the city of New York, whom he' had deserted, together with his infant child. Soon after Scott and this woman - appeared at Rutherford, they commenced attending the church
The truth of these statements stands not only uncontradicted, but I think that it receives strong confirmation from Mr. Cane’s own conduct. Scott was his agent. He says he employed Scott to Avatch his wife, to see where she went, and to find out what she did, but that he did not employ the woman, and did not knoAv her. But he admits that he saw Scott, two or three times in July, and about the same number of times in August. These were the months, it will be remembered, in which the visits were made, the first being made on the 8th of July, and the last on the 20th of August-. He further admits that he knew in advance, from information furnished by Scott, when each visit .Avas to be made, and to what particular place his wife would go. His information respecting the movements of his wife, was so
It is barely possible that a man of an extremely distrustful nature, or morbidly jealous, who suspects the purity of his wife, might, when first informed that evidence of his wife’s guilt can be obtained, act wdth great rashness; he might not, in his eagerness to confirm his suspicions, stop to consider, or even to think,, but after he believes his object is gained, and that he has sufficient evidence to establish her guilt, he will then naturally become considerate and inquisitive, and if he is told subsequently further proofs- can be obtained, he will be very likely to treat.
There is another part of Mr. Cane’s conduct which, I think, furnishes very strong evidence that he knew that Scott was trying either to lead his wife into guilt or to surround her with the appearances of guilt. He knew, as already stated, that his wife, ■on each occasion when he says she was guilty of conduct indicating a criminal intent, was accompanied by another woman. Hfe saw them enter the brothel together at the time of their first visit. He knew the other woman by sight, and also that she lived at Rutherford. So he told his spy, William Schenck. He says, it is true, that he did not find out until August or September, 1882, that Scott was boarding at Mrs. Cane’s house, but he .admits that he was then told that there was a woman there with Scott. But it is impossible to believe that he is not mistaken as to the time when he was first told that Scott and this woman had become members of his wife’s family. For a year prior to the time they went there, his wife and her household had been constantly subject to the most vigilant watch, and it cannot be believed that two persons, one of whom was a man, could have been added to his wife’s family without that fact coming to his knowledge at an earlier time than he states. It is highly probable, in view of all the circumstances, that they had not been there a week before he knew it, and I think it may well be doubted whether he did not know they were going there before they went. But suppose we assume it to be true that he did not hear until he says he did, that they were members of his wife’s family, it is undisputed that he knew on the 8th of July, and .also on the occasion of each subsequent visit, that his wife did not go alone to these immoral places, as she would most probably
But the most decisive evidence furnished by Mr. Cane’s conduct remains to be considered. He discharged Scott in August, 1882. He says that he does not know that he expected to see Scott again. Scott was going, to Boston. He says he said to Scott, when they parted, that he might have no occasion to see him again, and that Scott told him if he did he should write to him at the Parker or Palmer House, Boston. He has never written to him. He says two or three months before he was examined as a witness in this case, he looked for Scott in New York, but the manner in which he says he conducted his search, as well as his whole Gonduct towards this man Scott, shows conclusively that he did not want him as a witness. And yet Scott, if his case was an honest one, was unquestionably his most valuable and important witness. The same means by which Scott learned when the visits were to be made, undoubtedly also informed him with whom and for what purpose they were to be made. Mr..
The case against the wife utterly fails. If it were stronger, indeed if guilt was shown, still I think it would be the duty of the court to deny the prayer of the husband in view of his conduct. A husband who seduced his wife before marriage, and thus makes himself acquainted with her weakness, and, what is more, responsible for the loss of that strength of character which conscious purity always gives a woman, places himself in a position where the law, in consequence of his wrong, requires him to shield his wife with peculiar vigilance, and to see' to it that she is not exposed to temptations that he knows she cannot withstand. If such a husband sees his wife in danger, if he sees her in a position where she is likely to become subject to the -power of the blandishments of a man whose character he knows to be bad and intentions evil, and he d'oes nothing to warn her, or to withdraw her from his influence, but allows her to be led on to her ruin and his dishonor, his conduct, in law, amounts to consent, and the statute declares that no divorce for adultery shall be decreed when it appears that the party complaining consented thereto. Chancellor Zabriskie declared in Hedden v. Hedden, 6 C. E. Gr. 61, that if a husband sees what a reasonable man
The petition of the husband must be dismissed, with costs. An additional counsel fee will be allowed. The defence has been attended with unusual labor and difficulty. This has been .so in consequence of the artful manner in which circumstances indicating guilt have been thrown around the wife. $150 has .already been allowed; $500 is, under the circumstances, a very moderate allowance. An additional allowance -of $350 will be made. ■■ ■
In the suit by the wife against her husband, though several .adulterous acts are charged, but one is proved. That is proved by a single witness, and if it was committed at all, was committed in the summer of 1869, more that fifteen years ago. The proof in support of the charge is very unsatisfactory. The witness who swears to the act admits that when inquiry was first made of him, he did not recollect the fact; that it had entirely faded from his memory, and that it was not until he had made an effort that his recollection of the fact returned. Standing alone and uncontradicted,' I think it might well be ■doubted whether the measure of proof thus furnished would be sufficient, in any case, to justify a judgment of divorce. The husband and his alleged particeps criminis, however, both deny positively that they were ever criminally intimate. In this condition of the proofs, it is clear that no divorce should be granted, and that the petition of the wife must also be dismissed.