41 N.J. Eq. 198 | New York Court of Chancery | 1886
This is a suit by a husband against his wife for divorce for adultery. The husband’s-petition was filed February 3d, 1882. The wife did not answer, and on the 11th of March, 1882, an order of reference was made permitting the petitioner to take his proofs and bring on the hearing of his cause ex parte. Within five days he commenced taking his proofs, and continued to do so, from time to time, until the 28th of the same month.
On the 3d of April, T 882, an order was made allowing the defendant to answer. She answered by simply denying the adulteries charged against her. Proofs were then taken and the cause brought to hearing. The defendant did not offer herself as a witness. On the conclusion of the reading of the proofs, the vice-chancellor, who was hearing the case, expressed his surprise that the defendant had not been examined as a witness, and stated that while it might very properly be contended that the proofs offered to establish the fact of adultery were not of a very satisfactory character, yet the court, in considering them, could not lose sight of the fact that the defendant had had a full opportunity to deny as a witness every act of guilt charged against her, but had shrunk from availing herself of it. Her counsel then stated that the defendant had been eager to testify, but that he had advised her that her testimony was not necessary to her exculpation, and that she had accordingly, in obedience to his advice, remained silent, though she doubted the wisdom of his direction. He further stated that, while considering the question whether the defendant should be offered as a witness or
If the defendant can prove the fact of adultery against her husband, she will establish a perfect defence to his action, no matter how clear the proof of her guilt may be. The statute expressly declares that when it appears that both parties have been guilty of adultery, no divorce shall be decreed. Rev. p. 319 § 30. This would be the' rule in the absence of statutory regulation. A husband who seeks a divorce- from his wife on the ground that she is an adulteress has no right to have his marriage dissolved if he himself is guilty of the same crime of which he accuses her. Forster v. Forster, 1 Hagg. C. R. (4 Eng. Ecc. 358) 144; Astley v. Astley, 1 Hagg. C. R. (3 Eng. Ecc. 303) 714; Smith v. Smith, 4 Paige 432; Jones v. Jones, 3 C. F. Gr. 33. The rule is a dictate of natural justice. Every man’s sense of justice will say that a husband who is himself unfaithful has no right to complain of the infidelity of his wife.
The petitioner, however, insists, in view of the extraordinary
Both principle and precedent make it the duty of the court to-grant defendant’s application.