all debts of Jane Frances Walton, and from the maintenance, &c. of the said Frank Walton during the life of Jane Frances Walton.

That after the execution of the said deed, the respondent went to reside with the said Francis Hibell, with whom she lived at Shirley Street during the year 1855, and thence hitherto and during that time, on divers occasions, committed adultery with the said F. Hibell.

The respondent did not appear. The co-respondent appeared, but put in no

answer.

The petition now came on for hearing on oral evidence (1), when the following facts appeared:-The petitioner, formerly a sergeant in the Rifle Brigade, on the 2nd of May 1826, married the respondent, who was the daughter of a publican, at the parish church of Kinsale, in Ireland. They lived together until the 19th of January 1855, during which time the respondent gave birth to twelve children, six sons and six daughters. In the year 1839 the petitioner, having, after twenty-seven years' service, obtained his discharge from the Rifle Brigade, went with his wife and family to reside at Birmingham, where he obtained employment as collector of rates for the borough. He there became acquainted with Francis Hibell, the COrespondent, a wire-drawer by trade, a married man with a family of fifteen children. In the autumn of 1852, during the absence of the petitioner from Birmingham for ten days, the co-respondent resided at the house of the petitioner, and there carried on an adulterous intercourse with the respondent. In 1854 the co-respondent, having a fit of the gout, went to the house of the petitioner to be nursed, and resided there some time, the petitioner being there also. During this period, also, the adulterous intercourse was carried on when the petitioner was absent from home on business; and also on other occasions. A servant and two daughters of the petitioner proved the adultery, but denied that, until after the respondent left home in 1855, they had informed the petitioner of it. On the night of the 19th of January 1855 the

(1) Coram Campbell, C.J., Martin, B. and the Judge Ordinary.

respondent, with her youngest child, a boy born in December 1853, left her home in a car, and was driven to the house of the co-respondent, where she remained some time, occupying a bed-room in his house, and where the adulterous intercourse was again carried on. In August 1856 the wife of the co-respondent ceased to live with him, and he had since lived with the respondent as his wife.

With reference to the separation in January 1855 the evidence was to the effect, that two or three days previously a quarrel had taken place between the petitioner and the respondent with reference to some housekeeping expenses, and that the respondent had then threatened to strike the petitioner. One of the daughters of the petitioner stated that previously to that quarrel they had lived peaceably, but, in answer to a question put by the Court, admitted that they had begun to be unfriendly when Hibell began to visit so frequently.

After this evidence had been given, the petitioner was called by the Court, and in answer to questions put by the Judge Ordinary stated, that the quarrel preceding the respondent's leaving home was about money he had given her for housekeeping expenses, and that she then took up the poker to strike him; that in February 1853 she told him that she wished to go on a journey with Hibell; that he forbade her doing so, and told her that there were reports about her and Hibell; that after that Hibell continued to go to his house; and that the petitioner taxed him and the respondent with improper conduct, but that they and Hibell's wife all declared that none had taken place; that he had never admitted that the youngest child was his; that he believed it was Hibell's, and might have said so; and that the covenant in the deed by Hibell to indemnify him against the expense of maintaining that child was inserted in consequence of his believing the child to be

Hibell's.

LORD CAMPBELL, C.J.-It is quite clear that the petitioner knew of the adulterous intercourse. The deed is virtually an assignment by the petitioner of his wife to Hibell. The petition must be dismissed.

This was a demurrer to the petition of Maria Seller praying for a judicial separation from her husband, William John Seller, on the ground of adultery.

The petition alleged

That the marriage took place on the 23rd of October 1826; that the parties cohabited for four years, and that in the year 1830 the respondent deserted the petitioner.

That in the year 1833 a suit for divorce à mensá et thoro was instituted in the Consistorial Court of the diocese of Chester by the respondent against the petitioner by reason of her alleged adultery; and that the said Court did by its definitive sentence or decree pronounced in the same cause and in pursuance of the prayer of the said respondent divorce and separate the said William John Seller from bed, board and mutual cohabitation with the petitioner until they should be reconciled to each other.

That in the year 1850 the respondent requested the petitioner to return to cohabitation with him as his wife. That in pursuance of such request the petitioner returned to cohabitation with the respondent, and that they then became reconciled to each other; and subsequently to such reconciliation during the months of March, April and May 1850 cohabited together as husband and wife. That in or about the month of May 1850 the respondent without reasonable cause deserted the petitioner. That after his desertion the respondent had from 1850 been living in

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

To this petition the respondent demurred, on the ground that the circumstances set forth in it, if proved, would not entitle the petitioner to a sentence of judicial separation, as it appeared from it that she had been herself guilty of adultery, and that the respondent in the year 1833 obtained a sentence of divorce from bed and board in a competent Ecclesiastical Court on the ground of such adultery.

Dr. Spinks (June 1), in support of the demurrer. The petitioner, having been found guilty of adultery by a competent tribunal, is not in a position to come to the Court and ask for a judicial separation, although her adultery may have been condoned. She is not recta in curiâ. The point is a novel one, and has never yet been decided. There is, however, a dictum of Lord Stowell, in Beeby v. Beeby (1), which supports the above view. There, in speaking of condonation, he says:-" In general, it is a good plea in bar. It is not fit that a man should sue for a debt which he has released; but here the plea in bar is compensatio, and condonation is not in bar of the action, but a counter-plea. Here the wife does not pray relief, but prays to be dismissed. It does not follow that the same act which will bar the remedy will operate on the other side. And unless it is a universal rule that whatever is a plea in bar, and disables a party from bringing the suit, likewise destroys the defence, the present attempt cannot avail the husband. A man, it is true, who has forgiven adultery cannot bring a suit; but when he complains of his wife, will her forgiveness of his previous misconduct make him a proper person to receive the sentence of the Court? Does her act bind the Court? If both are equally guilty, will her condonation make him rectus in curia, and enable him to procure a sentence?"

[The JUDGE ORDINARY.-Lord Stowell did not decide Beeby v. Beeby on that ground; and Dr. Lushington, in Anichini v. Anichini (2), expressly dissents from

(1) 1 Hagg. Ecc. 797. (2) 2 Curt. 210.

the opinion which Lord Stowell seems to have entertained.]

It does not follow because condonation would bar the remedy for the adultery condoned, that it would have the effect of making the wife recta in curia. Condona

In

tion does not put a wife who has committed adultery in the same position as regards the Court as it does with regard to her husband. She is not in a condition to receive the sentence of the Court. Hope v. Hope (3), it was held that a wife who had committed adultery was by that circumstance disabled from maintaining a suit for restitution of conjugal rights against her husband, though he also had committed adultery.

[The JUDGE ORDINARY.-In order that Hope v. Hope may be any authority in your favour, you must make out that a set-off of adultery is equivalent to condonation.]

Dr. Phillimore, contrà.-Dr. Lushington, in Anichini v. Anichini, virtually decided this question. That was a suit, by the wife, for restitution of conjugal rights. The husband pleaded in bar the adultery of the wife in 1835 and 1836, and prayed for a separation. The wife, in reply, charged the husband with adultery, committed in 1825 and 1831, and pleaded that the former adultery did not come to her knowledge until after the suit had been commenced. The husband denied the adultery in 1825, admitting that in 1831, and pleaded condonation. Dr. Lushington, finding the adultery of the wife proved, and also that though the husband had committed adultery it had been condoned, pronounced for a separation at the prayer of the husband. That is an authority expressly in favour of the petitioner. On principle this must be

so.

Condonation is a complete blotting out of the offence imputed, so as to restore the offending party to the same position which he or she occupied before the offence was committed-Keats v. Keats and Montezuma (4); and therefore by condonation the wife is made recta et integra. over, the language of the sentence of divorce in the Ecclesiastical Courts always contemplated reconciliation.

More

Cur. adv. vult.

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

P. & M. 43.

(4) Ante, 57.

--

The JUDGE ORDINARY now delivered judgment. The only question argued in the case was, whether a wife, having been guilty of adultery, condoned by her husband, could maintain a suit for judicial separation on the ground of adultery subsequently committed by him. It was treated on both sides as a new question, which had never received a judicial decision. The authorities relied on were a dictum of Lord Stowell in Beeby v. Beeby, and the decision of this Court in Hope v. Hope on the one side, and the opinion expressed by Dr. Lushington in Anichini v. Anichini on the other. In Beeby v. Beeby Lord Stowell certainly intimated an opinion that husband or wife having been guilty of adultery would not by condonation be so relieved from imputation as to be enabled to maintain a suit for adultery com mitted by the other party; but the point was not decided. In Hope v. Hope a distinction was taken between the effect of condonation and of mutual guilt or compensatio criminum. Neither did that case, therefore, decide the question now raised. But it seems to me that in Anichini v. Anichini the identical question was raised and decided. The wife sued for restitution of conjugal rights. The husband pleaded her adultery, and prayed a divorce. The wife recriminated. The husband replied condonation of his guilt. The learned Judge decided that the adultery of the husband having been condoned was no bar to his prayer for divorce on account of the adultery of the wife, which was accordingly decreed. That is a direct authority for saying that the adultery of one party having been condoned, is not a bar to a suit for a divorce on account of adultery afterwards committed by the other. I am unable to find any distinction between the two cases; and even if I differed in opinion from the learned Judge (which I do not), I should consider myself bound by his decision. I must therefore overrule the demurrer. The respondent may answer the petition.

Judgment for the petitioner.

The "wilful misconduct" intended by the 31st section of the Divorce Act, which, in a suit for dissolution of marriage, gives the Court an option as to dissolving the marriage, although the case of the petitioner may have been proved, if he has been guilty of "such wilful neglect or misconduct as has conduced to the adultery," is misconduct amounting to a breach of marital duty.

A, shortly after his marriage, was convicted of felony, and sentenced to transportation. Whilst he was undergoing penal servitude, his wife committed adultery with a man who resided in the house where she went to board. She had been previously much attached to her husband; and from the circumstances of the case there was no reason to doubt that, but for her husband's absence, caused by his own misconduct, she would have remained faithful to him :-Held, in a suit by the husband for dissolution of marriage (Pollock, C. B. dubitante, sed non dissentiente), that the felony committed by the petitioner, not being a violation of marital duty, was not "misconduct," within the meaning of the 31st section; and, therefore, that the case of the petitioner having been proved, the Court was bound to dissolve the marriage.

Held, also, per Lord Campbell, C.J., that the felony did not conduce to the adultery, as, though a sine quá non, it was not directly or indirectly a causa causans.

This was a petition, presented by John Edmund Cunnington, for dissolution of marriage on the ground of the adultery of his wife, Eliza Jessie Cunnington, with the co-respondent, Richard George Noble.

The petition stated that the marriage took place on the 12th of September 1849; that the parties cohabited, but had no issue; and that the respondent, from the 1st of May 1853 down to the date of the filing of the petition, had at various times committed adultery with the co-respondent.

Neither of the respondents appeared.

May 24, 1859 (1).—Oral evidence was given in support of the petition, the petitioner, at the close of his case, being called and examined by the Court.

J. H. Hodgson, for the petitioner.

The facts proved were in substance as follows:-The petitioner at the time of his marriage, in September 1849, was a clerk in the General Post Office, at a salary of 80l. a year. His wife and he were much attached to each other, and lived very happily together till November, in the following year, when he was apprehended on a charge of having feloniously opened a letter in the Post Office and taken a shilling from it. Upon this charge he was tried at the Central Criminal Court, and, being found guilty, was sentenced to ten years' transportation. His wife, who was a woman of good education and very respectable connexions, still continued much attached to him, and strove to obtain a pardon for him or a mitigation of his sentence. After being confined in several prisons, he was sent to the convict establishment at Dartmoor. He had no means of making any pecuniary provision for his wife; but during more than two years he kept up a constant and affectionate correspondence with her by letter, and they expressed a hope of again living happily together when he should be liberated. Her family supplied her with the means of decent subsistence, and she led a very reputable life till the summer of the year 1853. She then boarded and lodged, under the name of Mrs. Ashton, with a respectable lady, at Roydon, in Essex. In the same house lodged and boarded Richard Noble, the co-respondent, who was bailiff to a gentleman of large estate in the neighbourhood. A criminal intimacy then arose between Mrs. Cunnington and Richard Noble. In March 1854 she was delivered of a child, of which he was the father, and she has since lived with him in concubinage. Although she continued to write to her husband, she concealed this illicit intercourse from him till March 1855, when she wrote a letter to him confessing it, and entreating him

(1) Coram Lord Campbell, C.J., Pollock, C.B. and the Judge Ordinary.

to go to Australia, and not to annoy her. He was much distressed on receiving this letter. Being soon after discharged from prison, he entered into business as a commission agent in London, and on the passing of the 20 & 21 Vict. c. 85. he commenced this suit.

Cur. adv. vult.

The Court now delivered judgment:

LORD CAMPBELL, C.J. This was a petition for dissolution of marriage, heard during the last sittings of the full Court, in which time was taken to consider. My learned Brothers concur in the judgment I am about to pronounce; but owing to the importance of the principles involved, each of them will express his own opinion. I am of opinion that in this case the Court ought to pronounce for the divorce. The only doubt raised is, whether the petitioner had or had not been guilty of such wilful neglect or misconduct as had conduced to the adultery.-[His Lordship here stated the facts as above set out, and then continued:]-The adultery probably never would have happened if he had not been guilty of the misconduct for which he was prosecuted; but I do not think that this misconduct "conduced to the adultery," within the meaning of the 31st section of the act (2). Although a sine quá non, it was neither directly nor indirectly a causa causans. According to the received meaning of the word "conduce," I think that what has conduced to an effect must in some sense have caused

case

(2) Section 31, of 20 & 21 Vict. c. 85:-"In the Court shall be satisfied on the evidence that the case for the petitioner has been proved, and shall not find that the petitioner has been in any manner accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented in collusion with either of the respondents, then the Court shall pronounce a decree, declaring such marriage to be dissolved: Provided always, that the Court shall not be bound to pronounce 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 been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery."

it or contributed to it, and the conducing cause must be such as, if not directly, at least indirectly, might at the time of the misconduct be contemplated by the husband as likely somehow to contribute to his dishonour. But when the petitioner in this case stole the shilling, he was still a loving and attentive husband, and so he continued for several years after, until he heard with anguish that his wife had been unfaithful to him. Suppose that an officer in the army is sentenced to imprisonment for sending a challenge, or for fighting a duel, and that, while he is imprisoned for the misdemeanour or the felony, his wife, being then separated from him, falls a victim to seduction, shall it be said that the injured husband has disentitled himself to all remedy because his misconduct in sending the challenge or fighting the duel conduced to the adultery? Yet it may be truly said, that without this misconduct the adultery never would have taken place. The neglect or misconduct specified in the 31st section, following cruelty, desertion and wilful separation, without reasonable excuse, must, I think, be neglect or misconduct by the husband ejusdem generis, viz. in his marital capacity, and must be a breach of some marital duty. Although there be a change of expression between the 29th and 31st sections, I do not think that a man can be guilty of "neglect or misconduct" within the meaning of the latter, unless he has been "in some manner accessory to the adultery," within the meaning of the former (3). The laudable policy of the legislature seems to have been to deprive the husband of a remedy by divorce, if he has misconducted himself as a husband and has contributed to his own dishonour; but I discover no intention in the statute to punish neglect or misconduct unconnected with the relation of husband and wife, by the new punishment of rendering indissoluble a marriage which has become a disgrace and a curse.

Nor

(3) Section 29.- -"Upon any such petition for the dissolution of a marriage, it shall be the duty of the Court to satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or no petitioner has been in any manner accessory to or conniving at the adultery, or has condoned the same, and shall also inquire into any countercharge which may be made against the petitioner."