50 N.J. Eq. 701 | New York Court of Chancery | 1892
i(After examining and commenting on the evidence at length.)
It is claimed that evidence that the defendant frequently visited Kirby in his bed-room and remained there with him, is not sufficient evidence of adultery, and Williams v. Williams, 1 Hagg. Cons. 299, is cited in support of that contention. In that case the husband having forbidden the alleged paramour, Thomas, to come any more to his house, Thomas took lodgings, and the wife visited him there, and stayed a considerable time, and they passed there for husband and wife. Lord Stowed, distinguishing the case from that of Eliot v. Eliot, Cons., says (at p. 302): “ It is not proved as assumed, that she took the name of Mrs. Thomas; he called her so, and said that she was his wife, but it is not proved that she called him her husband, or that she knew that die called her his wife; he might speak of her in that name, but
“ The proofs against the wife seemed conclusive, and plainly the judgment that she was an adulteress would have been pronounced, and the grievous consequences would have fallen upon her, but for her ability to prove at the trial, beyond the possibility of contradiction, that even then, and after she had cohabited with her husband eight years, she was a virgin.”
Whitenach v. Whitenach, 9 Stew. Eq. 474 was also cited, but the only portion of the opinion bearing on the point is as follows : “ Perhaps the mere fact that these persons were together in lonely places, or that they were frequently together at night at the home of the defendant, when her husband was absent, would not of itself, standing alone, furnish evidence sufficient to justify the court in declaring that-they had committed adultery.” The result of the authorities cited is that the mere fact that a married-woman visited a man, other than her husband, at his lodgings, without other incriminating circumstances, is not sufficient evidence to convict her of adultery. In the case in hand there are such circumstances. This bed-room of Kirby’s was removed from frequent interruption. It was on the third floor. Her visits to him were clandestine so far as her husband and her family were concerned. She visited him when her absence from home was ostensibly for other purposes, and, although he had been an acquaintance at their own house, she never mentioned the fact of their renewed meetings to her husband. She passed at Kirby’s boarding-house as his wife. She has not the answer that Mrs. Williams had in 1 Hagg. Cons., supra, for she introduced herself into the house, and obtained access to his bedroom, by assuming the relation of wife to him, and was publicly introduced to the members of the family as Mrs. Kirby. She visited him when he was presumably in bed, for he worked all
It is true the defendant and Stiles deny the adultery under-oath, and I think she proves her inability to produce Kirby as-a witness. But this evidence, while competent, weighs but little-in the face of positive proof and overwhelming circumstances.. A question of the admissibility of contradictory statements by Stiles was reserved. I think the weight of authority is that such statements may be admitted as contradictory of the testimony of the witness, but not as bearing on the main charge. I have, however, in,the consideration of the case, given the testimony objected to no weight.
.But it is claimed that the husband has condoned the offence. It is urged that the petitioner has solemnly admitted it in his petition and papers used on a motion for alimony. As originally filed, the petition did state that the petitioner and defendant had continued to reside together as man and wife, up to the time of verifying the petition, but on representation by his counsel that the words “ as man and wife ” were inadvertently used to mean simply that they lived in the same house together, an
It is, however, the fact that these parties were domiciled in the same house up to Thursday the 22d day of October, 1891, the day the petition was verified. It is contended by the defendant’s counsel that, the parties not having ceased to reside in the same dwelling, the burden of proof is on the petitioner to show that the wife’s offence was not condoned by him; and that this requirement, imposing the burden of proof upon him, cannot be answered by the testimony of the petitioner alone, but that the same corroboration is necessary thereto as is required to establish the grounds upon which divorce is to be decreed. I do not so understand the law. Condonation in divorce proceedings is a defence, the burden of the proof of which is upon the party setting it up. 'The exceptional rule requiring corroboration of the testimony of the parties to the suit, as to the facts relied on as grounds of divorce, may, with propriety, be applied to a party who sets up condonation as a defence; but the prima facie case of condonation having been made out, there is no reason why it cannot be met with the same measure of proof as in ordinary cases.
But counsel for defendant claims to have made out his defence of condonation by a preponderance of evidence. He first invokes (the fact that the husband and wife occupied the same house-down to the 22d of October. Condonation is inferred from the fact of sexual intercourse after knowledge of guilt. Browne Dig. Div. 31. The general presumption is that husband and wife living iin the same house, live on terms of matrimonial cohabitation. Beebe v. Beebe, 1 Hagg. Ec. 789; Marsh v. Marsh, 2 Beas. 281, 285; Burns v. Burns, 60 Ind. 259. But this, as every other
The defendant; on the other hand, while admitting that her husband occupied a separate apartment from her for two weeks previous thereto, distinctly states that he slept with her in the same bed on the nights of Tuesday and Wednesday, October 20th and 21st, and that he had sexual intercourse with her on Tuesday night the 20th of October. The parties are therefore upon this point in direct antagonism. It is a point as to which it is seldom possible to find corroboration. The question, in the absence of corroboration, must be decided by ascertaining which of the parties is entitled to the most credit. Condonation implies guilt on the part of one, and knowledge of that guilt on the part of the injured. By this defence the wife practically says: “ I was guilty of adultery, and my husband, knowing that fact, willingly returned to my embraces.” Lord Stowell, in D’Aquillar v. D’Aquillar, 1 Hagg. Ec. 773, says: “ The adultery is almost admitted in the interrogatories by insinuating the defence that the wife was cognizant and had forgiven.” The defendant has, however, in this case, under oath, denied that she was guilty; if she was guilty and forgiven, as this defence assumed, she is false in her testimony, and I cannot accord the weight to her testimony, upon this point, that will overcome that of the petitioner, who is not discredited otherwise than by her testimony.
But there is another element necessary to establish condonation, and that is knowledge on the part of the injured one of the offence of the guilty, and this leads us to an examination of what knowledge the petitioner had at the time of this alleged intercourse. Chancellor Green, in Marsh v. Marsh, 2 Beas. 281, 282, says: “ Condonation may be implied if the husband after reasonable knowledge of the infidelity of his wife continues to admit her as the partner of his bed. * * * Reasonable knowledge may be said to have been had when information of a fact is given by credible persons, speaking of their own knowledge, particularly if the same facts be afterwards proved and they become instrumental in the proof” (at p. 283), quoting from Dr. Lushington, in Dillon v. Dillon, 3 Curt. 86: “ I have always understood the legal principle to be this, that when a husband had received information respecting his wife’s guilt, and can place such reliance on the truth of it as to act on it, although he is not bound to remove his wife out of his house, he ought to cease marital cohabitation with her.” - Lord Stowell, in Elwees v. Elwees, 1 Hagg. Cons. 269, 292, says: “A husband has suspicions—he has some intimations—he has enough to convince his own mind, but not to instruct a legal case. In that distressing interval his conduct is nice, and it is difficult to refrain from cohabitation, as. the means of discovery would be frustrated; and if he continues cohabitation, it then becomes liable to that species of intimation, which has passed to the disadvantage of this gentleman;” and in D’Aquillar v. D’Aquillar, supra: There is no evidence which satisfies the court that she was apprised of it in any other manner than upon general or a probable suspicion, it is not shown she knew it so she could legally prove it.” See, also, Pain v. Pain, 37 Mo. App. 110, 115; Hoffmeyer v. Hoffmeyer, 7 Paige 60; Uhlmann v. Uhlmann, 17 Abb. N. Cas. 236.
" There is no evidence whatever that the petitioner had knowledge of anything more than the floating rumors affecting the re
On Monday, the 19 th, the detective went to Mrs. Wen rich’s, the boarding-house, and saw Mrs. Wenrich, but the evidence of both shows that this visit of the detective was to examine the house, and it does not appear that anything was said between' them with reference to the visit of the defendant.
On Tuesday, the 20th, he again followed her and left her in Camden, at her sister’s, but she did not go to Wenrich’s that day. Later in the day he saw Mr. Graham at Mr. Beldon’soffice and made a report to him; exactly what he stated to the petitioner at this time or at any other does, not appear, in consequence of the objection of defendant’s counsel to evidence being given of what took place between these parties in the absence of the defendant. But it may be presumed, and he says, at one time he did tell him all that he knew, but what did he know ?’ All that he did know with reference to this charge is, that on the 17th she had gone to various places, including the house of Mrs. Wenrich, and the further information, obtained by him on Monday, that this was a boarding-house, and to all appearances a respectable place, it does not appear that then the detective had) even heard of Kirby. There was the all important link yet
Mr. Graham met his wife that day at her sister’s, after seeing the detective; he did not want her to return to Bordentown ; he endeavored to dissuade her therefrom, urging that it would be necessary for her to return so soon to Philadelphia; but she did come back. She on this occasion upbraided him for having employed a detective to watch her. With the knowledge which he then had, in the conference between himself, his counsel and his friend Mr. Shreve, it was determined that it was necessary to ascertain the further step indicated, namely, what had been the reason of the defendant’s visit to this house of Mrs. Wen rich, and thereupon the engagement was made which resulted in Mr. Shreve’s going to Philadelphia with the photograph of the defendant. This Shreve did on Wednesday; he there met by appointment the detective, and the two saw and interviewed Mr, Wenrich, who, on the photograph of defendant being shown to-him, recognized it as the woman who at his house passed as the' wife of Eugene Kirby. This completed the chain of evidence, Mr. Shreve did not return to Bordentown until late Wednesday-night; he did not see the petitioner until Thursday after the-defendant had for the last time left her husband’s house. Tliefacts ascertained were reported to petitioner on the morning of Thursday, the 22d, when he immediately closed his house, sent his wife’s niece home, and verified his petition for divorce. So-that it appears that reasonable knowledge of the infidelity of the defendant, as defined by the authorities, was not in the possession of the petitioner until the morning of Thursday, (.he 22d of October, the very day the. petition was filed, and there is no pretence that since that time he has had any marital relations with her.
. I am of opinion the petitioner is entitled to- a divorce