1 Edw. Ch. 439 | New York Court of Chancery | 1832
It is objected, in the first place, on the part of the complainant, that no inquiry, as to a was admissible, the same being a matter of defence which ought to have been set up by plea or answer, and not available after the bill has been taken pro confesso.
The master permitted the inquiry, as being a part of the matter of the bill, in which it is alledged, that after a of the husband’s misconduct, the wife continued to reside with him, and accompanied him to England in the month of August, one thousand eight hundred and thirty-one, and from thence back to New York in March, one thousand eight hundred and thirty-two but, adding circumstances to show how all this ought not to be taken as a forgiveness on her part. It was upon this ground the master deemed the a proper one, as being a part of the case made by the bill itself. I am inclined to think it was so; but I forbear to express a decisive opinion upon the point, since, even by to the defendant the benefit of the facts elicited by the I am still of opinion the complainant is entitled to a decree.
The testimony discloses enough to make out a case of at the time the parties embarked at Liverpool on their return to New York. But the effect of a condonation is not, in all cases, to bar the party of her remedy: since, it is only a forgiveness of the offence, accompanied with an implied condition that the injury shall not be repeated&emdash;and, when the forgiveness proceeds from the wife, that she shall be treated with conjugal kindness. On a breach of the condition, the right to prosecute for the former injury revives. This is a well settled rule, and it is founded in the wisest policy. Nor does it appear to be necessary that the subsequent injury should be of the same sort, and proved in the same clear man-
Another principle appears to be equally well established^ namely, that the effect of cohabitation as a condonation is less binding on a wife that it is on the husband : because, in the language of Lord Stowell (Beeby v. Beeby, 1 Hagg. Eccles. R. 793,) she is more sub potestate, more inops condlii, she may entertain better hopes of the recovery and reform of her husband, her honor is less injured and is more easily healed •, and so far from its being improper that she should for a time show .a patient forbearance, it is commendable in her to exercise it, with a view to reclaim him ; which would not be tolerated in the husband where the wife should happen to be the delinquent paity. Besides, she may find a difficulty either in quitting his house or withdrawing from his bed. It would, therefore, be hard if implied forgiveness, arising from a continued apparent cohabitation, was held to be a strict bar when she is finally compelled to resort to her legal remedy.
These principles apply with peculiar force to the facts and circumstances of the present case, as disclosed in the testimony before the master ; and I am entirely satisfied, although there had been condonation on the part of the complainant previous to and down to the time of their departure from Liverpool on their return to New York, that the subsequent misconduct of the defendant towards his wife was such a violation of the implied condition of the forgiveness as restores to the wife her original right and remedy. The misconduct imputed to him commenced the second night they were on board the ship; and it continued, according to the evidence, in a greater or less degree, during the whole passage. There was
Under the circumstances of the case, I am of opinion she is entitled to a decree dissolving the marriage; and, with costs.
