law imposes upon him. Similar arguments were also strongly urged in the case of Proctor v. Proctor, but were overruled, 2 Consistory Reports, 295-6. It is also to be remembered, that the wife will equally suffer inconvenience, if a sentence be given against her, and she be turned loose upon the world.

Now, in support of the argument that one act of frailty is not sufficient to bar a husband of his remedy, only one case has been cited, viz. Naylor v. Naylor, Consistory, 1777. Trin. term, 4th sess. I have obtained a note of that case, and since it is desirable that misapprehension should not exist as to the doctrine there held, nor as to the opinion of the judge, I will read that note. Dr. Bettesworth, who then presided in this Court, said: "This is a cause of restitution of conjugal rights brought by the wife against the husband: in bar he pleads adultery: she recriminates. There are no less than thirteen witnesses to prove the adultery of the wife. She has not only committed the crime of adultery, but a series of adultery is proved, so that of her guilt there cannot be a doubt. On the other side, the counsel rely that they have made full proof of adultery by the husband; and that according to the law of the Ecclesiastical Court, if they have fully established his guilt, that will prevent his obtaining the effect of his prayer. But here is only a single witness to a fact, and all circumstances are against her; it would not, therefore, be sufficient even if her evidence were without exception. She then being a single witness must be laid out of the case. It might be a question if a wife left her husband and lived many years from him, and in a course of adultery, whether, if the husband in one frail moment should be faulty, it would be a compensatio criminis? The words imply, You have been as guilty as I have been:' but in this case it is not necessary to consider; for two persons have deposed in a way not to be relied upon; and Mrs. Naylor has bribed witnesses-a circumstance alone sufficient to repel their credit."

In this case then of Naylor, the learned Judge stated that it might be a question whether, when a wife left her husband, and lived in a long course of adultery, it would afford a compensatio criminis, and whether a husband ought to suffer for one frail act? but it will be observed, that the case itself was decided on a totally different ground; the learned Judge decided there was no proof of adultery; he merely put an hypothetical case, which is materially distinguished from the one before me. In that hypothetical case, the wife was supposed to have quitted her husband, and lived for several years in adultery; now here, the wife had not quitted her husband, and continued in adultery previous to his guilt: on the contrary, the husband is charged with adultery anterior to the separation, and to her criminality. The cases, therefore, are quite separate and distinct; but at the same time I must be permitted to say on the authority of Proctor v. Proctor, a case to which I have already referred, that a compensatio criminum is effected by the guilt of both parties. (a) But the present case does not alone depend upon an act of adultery committed in one frail moment; for, here, it is distinctly proved that, on one previous occasion at least, he had gone to this brothel, and that he had taken liberties with these women, and with other abandoned females. I, therefore, come to this decision, that the conduct of Sir Jacob Astley bars him of the remedy he prays, and that Lady Astley be dismissed from this suit.

(a) See Beeby v. Beeby, infra, (Supplement.)

POLLARD, falsely called WYBOURN, v. WYBOURN.—p. 725.

In a suit of nullity by reason of the impotency of the man, a certificate (twelve years after marriage) that the woman was virgo intacta and apta viro coupled with two several confessions by the man of his incapacity to two medical witnesses, and with proof that the woman's health had suffered; though the man had not given in his answers, had removed into France, and refused to undergo surgical examination, held sufficient.

THIS was a suit of nullity by reason of the man's impotency. The de facto marriage took place in April 1815, the man being of the age of forty-one; the woman, seventeen.

A month after marriage, the man took to a separate bed: afterwards from October 1815 to the spring of 1816 she resided with her father; and the man, though generally absent on military duties, occasionally slept in the same bed, but from the spring till October of 1816, he abstained altogether from cohabitation; and then the parties again lived together as man and wife for two months, after which he volunteered to St. Helena. He returned in 1819; but concealed his return from the other party for three weeks; but there was regular matrimonial cohabitation, with slight intervals, from that time till April 1823. At that time her health having greatly suffered, she by the advice of her medical man took to sleep separately, and never afterwards returned to Mr. Wybourn's bed. About May, 1826, they finally parted, and towards the close of that year this suit was instituted. A medical certificate fully proved that the marriage had never been consummated, and that though virgo intacta, she was apta viro. The man had been personally served with a monition at Cassel, in France, to submit himself to medical inspection, but had not obeyed the process.

The King's Advocate and Nicholl, for the woman.
Phillimore and Pickard contra.

JUDGMENT.

DR. LUSHINGTON.

In this case, a de facto marriage was celebrated in August 1815, and the parties continued to cohabit together at intervals, as man and wife, till the spring of 1823, when, as appears by the evidence of Mr. Parkin, a medical man, they ceased by his advice to occupy the same bed, in consequence of her health having suffered. They, however, lived under the same roof till May 1826, when Mr. Wybourn quitted the country.

The Court has been put upon its guard against collusion. I am well aware that the Court should be very cautious, if collusion could reasonably be suspected; but there is no circumstance in this case to lead me to imagine that any thing of the sort exists. I cannot presume collusion, without something to raise such a presumption. The question then is, whether the evidence is sufficient; whether there is an absence of what is essential to the final adjudication of the cause. I am of opinion that there is satisfactory evidence that the cohabitation lasted considerably longer than what the law generally requires; much more than three years. The ground of the separation is not to be laid out of the case; it is part of the res gesta. Now, that it arose in consequence of the loss of health, and from her sufferings, appears from the evidence of Mr. Parkin: he says "that about six or eight months after Christmas 1822, they, by de

ponent's advice, ceased to occupy the same bed: it was, on her account, and in consequence of her health having suffered, that the deponent gave this advice." Again on the 14th article, he says "he was attending Mrs. Wybourn professionally in 1823, and having ascertained the cause of the deplorable state in which she was, the deponent advised she should withdraw from the bed of her husband."

The Court always requires a certificate of medical persons as to the state and condition of the woman. In the present case that certificate has been given by Mr. Parkin, who appears to be a surgeon of eminence, and by Mr. Blagden, who undoubtedly is. It has been argued, that the test on which the certificate is framed is too vague and uncertain; that the Court cannot rely on it. Now the present certificate is according to the practice invariably adopted-not to give reasons; and I should be extremely reluctant to depart from that practice. In the first place it is a received maxim "cuilibet in arte sua credendum est." Secondly, if the grounds were given, how could the Court comprehend the reasons, and decide between conflicting opinions? besides, the introduction of the grounds would lead the Court into minute inquiries about matters, the discussion of which the Court would be most anxious to avoid unless it were imperatively called upon to pursue the investigation. Here are the very strongest grounds to presume the impotency of the man. If the parties lay together in one bed for so many years, of such ages, and the woman is certified to remain virgo intacta, there cannot be a stronger presumption that impotency existed, and that it was incurable. Such a lapse of time satisfies the Court that in all human probability he was incapable of consummating the de facto marriage: but this is not left to inference from these facts only; for two direct admissions by him to two different surgeons are proved. I never can think that these lead to any thing but a direct acknowledgment of his incapacity. The first of these admissions was made previous to his departure for St. Helena in 1816, "that he was then incapable of performing marriage rites:" and the second confession was in 1823 "that he was impotent; that whenever he had made the attempt to have connexion with his wife he had failed." These confessions were made at periods so long anterior to the institution of this suit, that there could have been no inducement to fabrication,

It is said, that the law requires that the party's answers should be given in, or that he should submit his person to medical inspection. If this were the true rule, the man would only have to withdraw out of the reach of the process of the Court, and thus defeat the ends of justice, and defraud the woman of her remedy. The law never imposed such difficulties upon any Court. (a)

It being perfectly clear that the monition was personally served, and that the party consequently has had fair notice of these proceedings, he surely would have come forward and rebutted the charge, if he had had the power. The Court however cannot refrain from going still further in this case; for suppose the party had appeared, and the certificate from his inspectors had been couched in the same terms as in Greenstreet v. Cumyns, 2 Phill. 10, which rather supported his capacity than proved

(a) "Quamvis utroque conjuge fatente impedimentum, ac triennio lapso, sanum consilium sit facere conjuges inspici; at id non est necessarium." Sanchez de Matrimonio, Lib. 7. disp. 108. No. 6.

his impotency; even in that case, the Court would not go to the length of saying that the woman's remedy would have been barred.

In this case I am satisfied there is no collusion, and that there is as much evidence as the law requires; and I therefore pronounce the libel fully proved, and that the lady is entitled to the sentence she prays, and that the defendant must be condemned in the costs of this suit.

The Office of the Judge promoted by

NORTH and LITTLE v. DICKSON.-p. 730.

Provocation is no defence to a criminal suit for brawling in a church at a vestry meeting. On proof of the offence, the defendant suspended for a fortnight ab ingressu ecclesiæ, and condemned in costs.

Supplement.

ARCHES COURT OF CANTERBURY.

DURANT v. DURANT. (a)—p. 733.

In a suit for divorce on account of the husband's adultery after a condonation of former adulteries; there must be, in order to establish condonation of subsequent adultery as a bar to the wife's remedy, evidence that she was aware of this renewed misconduct; nor can such knowledge be inferred from slight facts, and from cohabitation, but it must be clearly and distinctly proved. If a wife forgives earlier adultery upon condition and assurance of future amendment, on the husband's again committing adultery, that previous injury revives. When the husband's adultery is to be proved by pregnancy and acknowledgment of children it is not necessary to plead particular acts.

Evidence extracted upon cross-examination (in order to show condonation, compensatio criminum, or to discredit one adverse witness by another) if relied on as the sole ground of defence has far slighter effect than when a defensive, recriminatory or exceptive plea is given in and examined to.

In examining evidence and proofs, the Court must not take the charges insulated and detached, but the whole together, and must consider what has been the admitted conduct of the party under similar circumstances.

Quære, whether condonation, unless as far as is admitted by the adverse case, can be set up without being pleaded. Semble that in no case has it been held to estop a party where not pleaded.

Condonation is not presumed, as a bar, so readily against the wife as against the husband.

Entering into a voluntary deed of separation and bringing an action on that deed do not bar a wife from proceeding for a divorce in the Spiritual Court: nor bear unfavourably on her case.

(a) Vide supra, p. 231.

Condonation is forgiveness with an implied condition that the injury shall not be repeated, and that the other party shall be treated with conjugal kindness: on breach of the condition the right to a remedy for the former injuries revives. Cruelty will revive condoned adultery, and less is necessary to revive than to found an original sentence.

A groundless and malicious charge against the wife's chastity followed up by turning her out of doors, and not attempted to be pleaded nor proved, may be alleged with other acts of cruelty as a ground for separation. Quære, whether it would not revive condoned adultery?

THIS was a suit for divorce, à mensa et thoro, brought by the wife against her husband by reason of his adultery. The facts of the case are fully detailed in the judgment; and it is unnecessary to state more than that it was admitted that the adultery of the husband was fully proved; and that on this fact coming to the knowledge of the wife she, on two occasions, separated herself from her husband, but afterwards returned to cohabitation; first, on a promise of future good conduct; and, secondly, from want of means of subsistence when near her confinement. The husband afterwards accused her of adultery, and turned her out of his house. Further acts of adultery on his part, subsequent to her return to cohabitation, and also subsequent to his having forced her to leave his house, were alleged. No charge was brought forward in plea against the wife: and the questions of fact principally were, whether the later acts of adultery were established; and whether the wife, at her return to cohabitation, was aware of all the earlier acts of adultery?

In the course of the argument the Court read the following note of Worsley v. Worsley, Consistory 1730, Mich. Term, 3d Session.

"In this case several facts of cruelty and adultery were charged by the wife in an allegation offered by her, which were laid to have been committed some years ago; since that, there had been a reconciliation between the husband and wife; and since that reconciliation he was charged in this allegation with fresh acts of cruelty, but with no new acts of adultery.

"Dr. Cotterell, for the husband, said, that as he was charged with fresh acts of cruelty since the reconciliation, they would indeed revive the former acts of cruelty before the reconciliation, but since no adultery was pretended, the former acts of that kind did not come within the rule, therefore all the articles of the allegation relating to the adultery were irrelevant, and ought to be struck out.

The Court (Dr. Henchman) held clearly that "the new acts of cruelty would revive the whole, as well the acts of adultery that were committed before the reconciliation (though there were no new acts of that kind,) as also the acts of cruelty, and that the wife was now as much at liberty to charge her husband with those former acts of adultery, notwithstanding the reconciliation, as she would have been if there had been no reconciliation at all."

After reading this case, the Court said:

I wish to hear a full argument on the doctrine of Condonation; its principles, and the authorities respecting it. What takes off its effects, and revives a former charge? Will any offence, short of subsequent adultery, namely, an approach to adultery, set aside condonation as a bar? Will solicitation of chastity have that effect? Must the injury be ejusdem generis? Will cruelty revive adultery? If so, will any thing short of what would substantively and separately establish a case of