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all debts of Jane Frances Walton, and from respondent, with her youngest child, a boy the maintenance, &c. of the said Frank born in December 1853, left her home in a Walton during the life of Jane Frances car, and was driven to the house of the Walton.

co-respondent, where she remained some That after the execution of the said deed, time, occupying a bed-room in his house, the respondent went to reside with the said and where the adulterous intercourse was Francis Hibell, with whom she lived at again carried on. In August 1856 the Shirley Street during the year 1855, and wife of the co-respondent ceased to live thence hitherto and during that time, on with him, and he had since lived with the divers occasions, committed adultery with respondent as his wife. the said F. Hibell.

With reference to the separation in The respondent did not appear. The January 1855 the evidence was to the co-respondent appeared, but put in no effect, that two or three days previously a answer.

quarrel had taken place between the petiThe petition now came on for hearing tioner and the respondent with reference on oral evidence (1), when the following to some housekeeping expenses, and that facts appeared:— The petitioner, formerly the respondent had then threatened to a sergeant in the Rifle Brigade, on the 2nd strike the petitioner. One of the daughof May 1826, married the respondent, who ters of the petitioner stated that previously was the daughter of a publican, at the to that quarrel they had lived peaceably, parish church of Kinsale, in Ireland. They but, in answer to a question put by the lived together until the 19th of January Court, admitted that they had begun to be 1855, during which time the respondent unfriendly when Hibell began to visit so gave birth to twelve children, six sons and frequently. six daughters. In the year 1839 the peti- After this evidence had been given, the tioner, having, after twenty-seven years' petitioner was called by the Court, and in service, obtained his discharge from the answer to questions put by the Judge OrdiRifle Brigade, went with his wife and nary stated, that the quarrel preceding family to reside at Birmingham, where he the respondent's leaving home was about obtained employment as collector of money he had given her for housekeeping rates for the borough. He there became expenses, and that she then took up the acquainted with Francis Hibell, the co- poker to strike him; that in February respondent, a wire-drawer by trade, a 1853 she told him that she wished to go married man with a family of fifteen chil- on a journey with Hibell; that he forbade dren. In the autumn of 1852, during the her doing so, and told her that there were absence of the petitioner from Birmingham reports about her and Hibell; that after for ten days, the co-respondent resided at that Hibell continued to go to his house ; the house of the petitioner, and there car- and that the petitioner taxed him and the ried on an adulterous intercourse with the respondent with improper conduct, but respondent. In 1854 the co-respondent, that they and Hibell's wife all declared having a fit of the gout, went to the house that none had taken place; that he had of the petitioner to be nursed, and resided never admitted that the youngest child there some time, the petitioner being there was his; that he believed it was Hibell's, also. During this period, also, the adul- and might have said so; and that the terous intercourse was carried on when the covenant in the deed by Hibell to inpetitioner was absent from home on busi- demnify him against the expense of mainness;

and also on other occasions. A ser- taining that child was inserted in consevant and two daughters of the petitioner quence of his believing the child to be proved the adultery, but denied that, until Hibell's. after the respondent left home in 1855, they had informed the petitioner of it. On LORD CAMPBELL, C.J.-It is quite clear the night of the 19th of January 1855 the that the petitioner knew of the adulterous

intercourse. The deed is virtually an (1) Coram Campbell, C.J., Martin, B. and the assignment by the petitioner of his wife to Judge Ordinary.

Hibell. The petition must be dismissed.


by him.

Ward, for the co-respondent, asked for adultery with a woman named Harriet costs, but none were allowed.

Day, and that in the year 1834 he was Petition dismissed. married to her.

To this petition therespondent demurred, on the ground that the circumstances set

forth in it, if proved, would not entitle the MATRIMONIAL

petitioner to a sentence of judicial separa1859.

tion, as it appeared from it that she had June 15.

been herself guilty of adultery, and that Judicial Separation-- Adullery-Condo

the respondent in the year 1833 obtained a nation,

sentence of divorce from bed and board in

a competent Ecclesiastical Court on the The adultery of the wife, if it has been ground of such adultery. condoned by her husband, is no bar to a suit by her for judicial separation on the Dr. Spinks (June 1), in support of the ground of adultery subsequently committed demurrer. — The petitioner, having been

found guilty of adultery by a competent

tribunal, is not in a position to come This was a demurrer to the petition of to the Court and ask for a judicial sepaMaria Seller praying for a judicial separa- ration, although her adultery may have tion from her husband, William John Seller, been condoned. She is not recta in curia. on the ground of adultery.

The point is a novel one, and has never The petition alleged

yet been decided. There is, however, a That the marriage took place on the dictum of Lord Stowell, in Beeby v. Beeby 23rd of October 1826; that the parties (1), which supports the above view. There, cohabited for four years, and that in the in speaking of condonation, he says :-"In year 1830 the respondent deserted the general, it is a good plea in bar. It is not petitioner.

fit that a man should sue for a debt which That in the year 1833 a suit for divorce he has released; but here the plea in bar is à mensá et thoro was instituted in the Consis- compensatio, and condonation is not in bar torial Court of the diocese of Chester by the of the action, but a counter-plea. Here respondent against the petitioner by reason the wife does not pray relief, but prays to of her alleged adultery; and that the said be dismissed. It does not follow that the Court did by its definitive sentence or same act which will bar the remedy will decree pronounced in the same cause and operate on the other side. And unless it in pursuance of the prayer of the said re- is a universal rule that whatever is a plea spondent divorce and separate the said in bar, and disables a party from bringing William John Seller from bed, board and the suit, likewise destroys the defence, the mutual cohabitation with the petitioner present attempt cannot avail the husband. until they should be reconciled to each A man, it is true, who has forgiven adulother.

tery cannot bring a suit; but when he comThat in the year 1850 the respondent plains of his wife, will her forgiveness of requested the petitioner to return to coha- his previous misconduct make him a proper bitation with him as his wife. That in person to receive the sentence of the pursuance of such request the petitioner Court? Does her act bind the Court ? If returned to cohabitation with the respon- both are equally guilty, will her condent, and that they then became reconciled donation make him rectus in curia, and to each other; and subsequently to such enable him to procure a sentence?" reconciliation during the months of March, [The Judge OrdinARY.—Lord Stowell April and May 1850 cohabited together as did not decide Beeby v. Beeby on that husband and wife. That in or about the ground; and Dr. Lushington, in Anichini month of May 1850 the respondent with- v. Anichini (2), expressly dissents from out reasonable cause deserted the petitioner. That after his desertion the re

(1) i Hagg. Ecc. 797. spondent had from 1850 been living in

(2) 2 Curt. 210.

the opinion which Lord Stowell seems to The JUDGE ORDINARY now delivered have entertained.]

judgment.-The only question argued in It does not follow because condonation the case was, whether a wife, having been would bar the remedy for the adultery con- guilty of adultery, condoned by her husdoned, that it would have the effect of band, could maintain a suit for judicial making the wife recta in curia. Condona- separation on the ground of adultery subtion does not put a wife who has committed sequently committed by him. It was adultery in the same position as regards treated on both sides as a new question, the Court as it does with regard to her which had never received a judicial decihusband. She is not in a condition to sion. The authorities relied on were a receive the sentence of the Court.


dictum of Lord Stowell in Beeby v. Beeby, Hope v. Hope (3), it was held that a wife and the decision of this Court in Hope v. who had committed adultery was by that Hope on the one side, and the opinion excircumstance disabled from maintaining a pressed by Dr. Lushington in Anichini v. suit for restitution of conjugal rights Anichini on the other. In Beeby v. Beeby against her husband, though he also had Lord Stowell certainly intimated an opinion committed adultery.

that husband or wife having been guilty [The JUDGE ORDINARY.-In order that of adultery would not by condonation be Hope v. Hope may be any authority in your so relieved from imputation as to be enfavour, you must make out that a set-off abled to maintain a suit for adultery com. of adultery is equivalent to condonation.] mitted by the other party; but the point

Dr. Phillimore, contrà.—Dr. Lushington, was not decided. In Hope v. Hope a disin Anichini v. Anichini, virtually decided tinction was taken between the effect of this question. That was a suit, by the condonation and of mutual guilt or compenwife, for restitution of conjugal rights. The satio criminum. Neither did that case, therehusband pleaded in bar the adultery of the fore, decide the question now raised. But wife in 1835 and 1836, and prayed for a it seems to me that in Anichini v. Anichini separation. The wife, in reply, charged the identical question was raised and dethe husband with adultery, committed in cided. The wife sued for restitution of 1825 and 1831, and pleaded that the former conjugal rights. The husband pleaded adultery did not come to her knowledge her adultery, and prayed a divorce. The until after the suit had been commenced. wife recriminated. The husband replied The husband denied the adultery in 1825, condonation of his guilt. The learned admitting that in 1831, and pleaded con- Judge decided that the adultery of the donation. Dr. Lushington, finding the husband having been condoned was no adultery of the wife proved, and also that bar to his prayer for divorce on account though the husband had committed adul- of the adultery of the wife, which was actery it had been condoned, pronounced for cordingly decreed. That is a direct authoa separation at the prayer of the husband. rity for saying that the adultery of one That is an authority expressly in favour of party having been condoned, is not a bar the petitioner. On principle this must be to a suit for a divorce on account of adul

Condonation is a complete blotting tery afterwards committed by the other. out of the offence imputed, so as to restore I am unable to find any distinction between the offending party to the same position the two cases; and even if I differed in which he or she occupied before the offence opinion from the learned Judge (which I was committed— Keats v. Keats and Monte- do not), I should consider myself bound zuma (4); and therefore by condonation by bis decision. I must therefore overthe wife is made recta et integra. More- rule the demurrer. The respondent may over, the language of the sentence of di- answer the petition. vorce in the Ecclesiastical Courts always

Judgment for the petitioner. contemplated reconciliation.

Cur. adv. vult.


(3) 1 Swab. & Tr. 94; s.c. 27 Law J. Rep. (N.s.) P. & M. 43.

(4) Ante, 57.


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Neither of the respondents appeared. 1859.

May 24, 1859 (1).-Oral evidence was June 16.

given in support of the petition, the peti

tioner, at the close of his case, being called Dissolution of Marriage Misconduct

and examined by the Court. conducing to Adultery --- Adultery of the

J. H. Hodgson, for the petitioner. Wife of a Convicted Felon whilst under

The facts proved were in substance as going Imprisonment-20 & 21 Vict. c. 85.

follows :-The petitioner at the time of s. 31.

his marriage, in September 1849, was a The "wilful misconduct" intended by clerk in the General Post Office, at a the 31st section of the Divorce Act, which, salary of 80l. a year. His wife and he in a suit for dissolution of marriage, gives were much attached to each other, and the Court an option as to dissolving the lived very happily together till November, marriage, although the case of the petitioner in the following year, when he was apmay have been proved, if he has been guilty prehended on a charge of having feloniously of such wilful neglect or misconduct as has opened a letter in the Post Office and taken conduced to the adultery," is misconduct a shilling from it. Upon this charge he amounting to a breach of marital duty. was tried at the Central Criminal Court,

A, shortly after his marriage, was con- and, being found guilty, was sentenced to victed of felony, and sentenced to transporta- ten years' transportation. His wife, who tion. Whilst he was undergoing penal servi- was a woman of good education and very tude, his wife commilled adultery with a man respectable connexions, still continued who resided in the house where she went to much attached to him, and strove to obboard. She had been previously much at- tain a pardon for him or a mitigation of tached to her husband; and from the circum

his sentence. After being confined in stances of the case there was no reason to several prisons, he was sent to the convict doubt that, but for her husband's absence, establishment at Dartmoor. He had no caused by his own misconduct, she would means of making any pecuniary provision hare remained faithful to him :--Held, in a for his wife ; but during more than two suit by the husband for dissolution of mar- years he kept up a constant and affectionriage (Pollock, C.B. dubitante, sed non dis- ate correspondence with her by letter, and sentiente), that the felony commilted by the they expressed a hope of again living petitioner, not being a violation of marital happily together when he should be libeduty, was not misconduct," within the rated. Her family supplied her with the meaning of the 31st section ; and, therefore, means of decent subsistence, and she led that the case of the petitioner having been a very reputable life till the summer of proved, the Court wus bound to dissolve the the year 1853. She then boarded and marriage.

lodged, under the name of Mrs. Ashton, Held, also, per Lord Campbell, C.J., with a respectable lady, at Roydon, in that the felony did not conduce to the adul- Essex. In the same house lodged and tery, as, though a sine quá non, it was not

boarded Richard Noble, the co-respondent, directly or indirectly a causa causans. who was bailiff to a gentleman of large

estate in the neighbourhood. A criminal This was a petition, presented by John intimacy then arose between Mrs. CunEdmund Cunnington, for dissolution of nington and Richard Noble. In March marriage on the ground of the adultery 1854 she was delivered of a child, of which of his wife, Eliza Jessie Cunnington, with he was the father, and she has since lived the co-respondent, Richard George Noble. with him in concubinage. Although she

The petition stated that the marriage continued to write to her husband, she took place on the 12th of September 1849; concealed this illicit intercourse from him that the parties cohabited, but had no issue; till March 1855, when she wrote a letter and that the respondent, from the 1st of to him confessing it, and entreating him May 1853 down to the date of the filing of the petition, had at various times com

(1) Coram Lord Campbell, C.J., Pollock, C.B. mitted adultery with the co-respondent. and the Judge Ordinary.


to go to Australia, and not to annoy her. it or contributed to it, and the conducing He was much distressed on receiving this cause must be such as, if not directly, at letter. Being soon after discharged from least indirectly, might at the time of the prison, he entered into business as a com- misconduct be contemplated by the husmission agent in London, and on the band as likely somehow to contribute to his passing of the 20 & 21 Vict. c. 85. he dishonour. But when the petitioner in this commenced this suit.

case stole the shilling, he was still a loving

Cur. adv. vult. and attentive husband, and so he continued The Court now delivered judgment :

for several years after, until he heard with

anguish that his wife had been unfaithful LORD CAMPBELL, C.J. - This was a

to him. Suppose that an officer in the petition for dissolution of marriage, heard army is sentenced to imprisonment for during the last sittings of the full Court, sending a challenge, or for fighting a duel, in which time was taken to consider. and that, while he is imprisoned for the My learned Brothers concur in the judg. misdemeanour or the felony, his wife, being ment I am about to pronounce; but owing then separated from him, falls a victim to to the importance of the principles in- seduction, shall it be said that the injured volved, each of them will express his own husband has disentitled himself to all opinion. I am of opinion that in this remedy because his misconduct in sending case the Court ought to pronounce for the challenge or fighting the duel conthe divorce. The only doubt raised is, duced to the adultery? Yet it may be whether the petitioner had or had not been truly said, that without this misconduct guilty of such wilful neglect or misconduct the adultery never would have taken place. as had conduced to the adultery.--[His The neglect or misconduct specified in the Lordship here stated the facts as above set 31st section, following cruelty, desertion and out, and then continued:]-The adultery wilful separation, without reasonable exprobably never would have happened if cuse, must, I think, be neglect or misconhe had not been guilty of the misconduct duct by the husband ejusdem generis, viz. for which he was prosecuted; but I do not in his marital capacity, and must be a think that this misconduct "conduced to breach of some marital duty. Although the adultery," within the meaning of the there be a change of expression between 31st section of the act (2). Although a the 29th and 31st sections, I do not think sine qua non, it was neither directly nor in- that a man can be guilty of “neglect or directly a causa causans. According to misconduct” within the meaning of the the received meaning of the word "con- latter, unless he has been “in some manduce," I think that what has conduced to

ner accessory to the adultery,” within the an effect must in some sense have caused meaning of the former (3). The laudable

policy of the legislature seems to have (2) Section 31. of 20 & 21 Vict. c. 85:-"In been to deprive the husband of a remedy the Court shall be satisfied on the evidence that the

by divorce, if he has misconducted himself case for the petitioner has been proved, and shall not find that the petitioner has been in any manner

as a husband and has contributed to his accessory to or conniving at the adultery of the own dishonour; but I discover no intention other party to the marriage, or has condoned the in the statute to punish neglect or misadultery complained of, or that the petition is pre- conduct unconnected with the relation of sented in collusion with either of the respondents, then the Court shall pronounce a decree, declaring

husband and wife, by the new punishment such marriage to be dissolved: Provided always, of rendering indissoluble a marriage which that the Court shall not be bound to pronounce has become a disgrace and a curse. Nor such decree if it shall find that the petitioner has during the marriage been guilty of adultery, or if the petitioner shall in the opinion of the Court have (3) Section 29.—“Upon any such petition for been guilty of unreasonable delay in presenting or the dissolution of a marriage, it shall be the duty prosecuting such petition, or of cruelty towards the of the Court to satisfy itself, so far as it reasonably other party to the marriage, or of having deserted can, not only as to the facts alleged, but also wheor wilfully separated himself or herself from the ther or no petitioner has been in any manner acces. other party before the adultery complained of, and sory to or conniving at the adultery, or has condoned without reasonable excuse, or of such wilful neglect the same, and shall also inquire into any counteror misconduct as has conduced to the adultery." charge which may be made against the petitioner.”


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