4 Paige Ch. 432 | New York Court of Chancery | 1834
As the case stood before the vice chancellor, the decree was certainly correct; and there is no foundation whatever for the appeal. The circuit judge was right in rejecting the evidence, offered by the defendant, to prove a condonation of the adultery which had been established by the testimony of the witness. The only questions properly triable at the circuit, on the pleadings in this case, were as to the defendant’s guilt or innocence in relation to the several charges of adultery stated in the complainant’s bill, and which were set forth in the circuit roll. In a case of this kind, if the defendant wishes to prove a condonation of the offence, or to establish a recriminatory charge in bar of the divorce, strictly, she should urge it by way of special plea, or insist on it in her answer as a defence. Although she denies the adultery charged in the bill, she may in the same answer insist that if any act of adultery has been committed, there has been a condonation, or forgiveness of the offence,
If the defendant in this case had a good defence, by reason of a condonation, which, through mistake or inadvertence, she had neglected to set up in her answer, she should have applied to the court the first opportunity, for leave to amend her answer, or to file a supplemental answer, for the purpose of putting that fact in issue. If it was not too late to set up that defence after the trial of the feigned issue, and I am inclined to think it was not if a sufficient excuse had been shown, she should have made a special application to the court immediately after the trial of the issue; and before the cause was sent down to the vice chancellor for a final hearing and decree upon the equity reserved. This court, however, will in no case dissolve a marriage contract, on the ground of adultery, where it appears upon the pleadings or proofs, properly taken, that the injured party, with a full knowledge of all the facts, has actually forgiven the injury, and which has not been revived by subsequent misconduct; or where it appears that the adultery was committed by the procurement, or with the connivance of the complainant. The chancellor, therefore, at any time before a final decree in the cause, if there is reason to believe such a defence exists, may ex officio direct an inquiry to ascertain the fact. Such an inquiry, however,
In the present case, the vice chancellor, who had a full knowledge of the facts from what had transpired before him at the circuit, was unquestionably right in declining, ex officio, to order an inquiry to ascertain those facts, as they were wholly insufficient to justify the court in refusing the divorce. It does unquestionably appear that while the defendant continued to live with her husband, he was either more incredulous or more forbearing than most men would have been under similar circumstances. And he probably would have forgiven his wife and continued to live with her, even after he had reason to believe she had been unfaithful to his bed, could she have been prevailed upon to change her course of conduct and to reject the improper attentions of her paramour. But there was nothing adduced in evidence on' the trial of the crim. con. suit to induce a belief that the husband intended to connive at, or to encourage, an illicit intercourse between his wife and another. Condonation is a conditional forgiveness, and a repetition of the injury revives the condoned adultery. (Durant v. Durant, 1 Hagg. Eccl. Rep. 745.) And I think there was sufficient evidence on the trial to satisfy any reasonable mind that the adultery of the wife was continued after she left the house of her husband ; subsequent to which time there is no pretence of cohabitation with the complainant, or of actual forgiveness. And if such subsequent adultery can fairly be presumed, then all the former adulteries are revived. In Turton v. Turton, (3 Hagg. Eccl. Rep. 350,) Dr. Lushington, in delivering the opinion of the consistory court of London, says, “ I take it to be clear that according to the doctrine of this court, and according to all the principles in similar cases, if it can be once shown that the parties had been cohabiting in an illicit connection, it must be presumed, if they are still living under the same root) that the criminal intercourse, subsists, notwith
The recriminatory charge, of an adultery committed by the complainant, is of a very different charac er. If a husband, who seeks to obtain a divorce on account of the criminal conduct of his wife has himself been guilty of the same offence, whether before or after the adultery of the wife, it is a conclusive bar to the suit. (Forster v. Forster, 1 Hagg. Consist. Rep. 144. Astley v. Astley, 1 Hagg. Eccl. Rep. 714. Poynters Mar. Div. 224. 2 R. S. 145, § 42, sub. 4.) It appears from the petition and affidavits, and the fact is not denied on the part of the complainant, that while he was carry
As there is no foundation for the appeal, the court need not, in this case, preclude the possibility of such an application, by a technical aflirmance of the decree. I shall, therefore, direct the appeal to be dismissed with costs, to be paid by the appellant, including the costs of opposing this applicaation ; and without prejudice to any application to the vice .chancellor which the defendant may be advised to make, ^