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to produce the letter.(u) 'In matrimonial suits the libel must contain all the facts that can by diligence be ascertained at the time, and subsequently, new facts only which are nearly conclusive of guilt can be pleaded. (2) But though the whole substantive case should be at once brought before the court, yet where it is clearly shown that the facts could not have been sooner pleaded, additional articles may be given in.(y) In suits for adultery the party is not bound to the contents of his original libel, but it has been constantly held that fresh acts of adultery may be pleaded supplementarily, and that a sentence may be obtained on facts not existing at the commencement of the suit.() In a suit for separation by reason of the wife's adultery, although publication has passed, the court, on an affidavit that material facts are newly discovered, may in its discretion, allow the cause to be opened for the purpose of pleading further adultery.(a) Adultery committed by either the husband or wife at any time before sentence, will bar a sentence of separation at the suit of the other party, or *will compel the court to dismiss both parties, aduliery being mutually or reciprocally charged in the

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[ cause; and courts must permit either of such parties to plead adultery against the other, in any stage of such a cause, whether before or after publication, and how long soever this may have passed, or the cause may have been depending, it being certified to have been pleaded within a reasonable time after coming to the proponent's knowledge. (b)

In a suit by a husband for divorce on the ground of adultery, if the wife's allegation responsive to the libel plead that adultery was committed by the husband, he may meet the same by a defensive plea, and then the wife may afterwards offer additional articles negativing part of the husband's defensive allegation, and the latter will be admissible although a fourth allegation, because they may afford the court better means of arriving at a just conclusion.(c) It is perfectly well settled that cruelty cannot be pleaded by the wife in bar of a charge of adultery.(d) A libel pleading specific acts of adultery and cruelty can only be rejected in toto on one of two grounds :- 1st, that the plea on the face of it shows a case impossible of proof; 2nd, that it evidently appears from the facts pleaded, that the party complaining has barred herself.(e) Where a libel pleaded facis, Ist, to establish the adultery of the wise ; 2nd, to show that the husband had not forfeited his claim to relief by misconduct-the court directed parts to be reformed, on the several grounds of too great minuteness, hearsay, and pleading the contents of a letter not exhibited nor accounted for,

(u) Croft v. Croft, 3 Hagg. Eccl. R. 315 in the civil law causa nunquam concluditur -317.

contra judicem, Oughion, lit. 117. s. 3, m. (5) Story v. Story, 3 Hagg. Eccl. R. 738. Quoad judicem,” says Gail, “ nunquam in

(y) Moorsom v. Moorsom, 3 Hagg. Eccl. causa concluditur, et ideo ex officio conclu. R. 97.

sionem rescindere, ulterio." (z) Newton v. Newton, Cons. 1781, cited (b) Brisco v. Brisco, 2 Add. R. 259. in Middleton v. Middleton, 2 Hagg. Eccl. R. (C) Serjeant v. Serjeant, Cons. Court, June Suppl. 136; see Webb v. Webb, 1 Hagg. 27, 1834, 2 Chitty's Pr. L. 462. Eccl R. 349.

(d) Harris v. Harris, 2 Hagg. Eccl. R. (a) Middleton v. Middleton, 2 Hagg. Eccl. 411. R. Suppl. 134; see Hamerton v. Humerlon, (e) Popkin v. Popkin, 1 Hagg. Eccl. R. 2 Hagg. Eccl. R. 24. It is a known inaxim 765, Suppl.

AUGUST, 1841.-T

and admitted the rest:(f) The libel in a suit for cruelty and adultery, disclosing the existence of a former suit between the same parties, parily on the same facts, and that such former suit was appealed, and in the superior court dismissed by consent before sentence, it was held that the inferior court could not determine as to the admis[ *401 ]

sibility of such libel, the inhibition in the former suit not

*having been expressly relaxed.(g) The court is entitled to exercise a discretion as to what part of a libel may or may not be unnecessary, yet it is a discretion very considerably restricted.lt cannot exclude substantial facts. If twenty facts of adultery were pleaded, though one might be sufficient to entiile the husband to his remedy, the court would hesitate before it struck out one of them. It cannot foresee to what extent the husband is in possession of evi. dence, nor in what particular instances the averments of the libel may be proved ; and it would be extremely dangerous, and as it seems, going beyond all precedents, to strike out that which must be admitted to be a very material point towards enabling the court to arrive at a satisfactory conclusion on the case.(h) The wantonly pleading matter which has not been proved by the wife in a suit for adultery may affect part of the costs. Although the wife has an independent income she will be entitled to costs where she has established the case, notwithstanding the insufficiency of the husband's fortune.(i) In a cause for a divorce by reason of adultery, brought by the husband against the wife, where the parties had separated by agreement, the libel charged the woman with cohabiting in an adulterous intercourse, and also pleaded a pretended marriage with the adulterer, and exhibited a copy of the entry of such marriage. It was objected that this marriage being bigamy and a felonious act could not be pleaded in the ecclesiastical court. The court held the marriage, though amounting to a felony, if criminally prosecuted, would afford a strong presumplion, and corroborate the other evidence that might be offered as to the charge of adultery, for if the parties had performed the ceremony of marriage in a church, and had since lived together ostensibly as man and wife, that fact so assisted by the subsequent cohabitation, was strong presumptive evidence of an adulterous intercourse, and was therefore proper to be pleaded. (j)

* Antenuptial Incontinence.]—The wife's incontinence [ *402 ) in her single state cannot be pleaded in the first instance, by the husband in a suit for a separation a mensa et thoro, by reason of adultery against the wife.(k) It may possibly be a defence in a suit for restitution of conjugal rights,(l) in justification of the husband, where the wife sets up a plea of malicious desertion.

Letters.]—Letters of the husband exhibited by the wife are evidence against hiin, and explanations therein contained of his conduct with respect to the matter charged, are to be taken into the court's consi

(f) Croft v. Croft, 3 Hagg. Eccl. R. 310. see Bromley v. Bromley, Ib. 141, n.: ante, p. (g) Smyth v. Smyth, 4 Hagg. Eccl. R. 223-231. 516.

(k) Perrin v. Perrin, 1 Addams R. 1; 2 (h) Croft v. Croft, 3 Hagg. Eccl. R. 321. Phill. 127 ; see 2 Addams, 306, n.; ante, (i) Soilleux v. Soilleuz, 1 Hagg. Cons. R. 383; Best v. Best, 1 Addams, 411. 378, 379.

(1) 1 Hagg. Cons. R. 373. (j) Nash v. Nash, 1 Hagg. Cons. R. 140;

deration, but other statements therein are not evidence for the hus. dand, at least in debating the admissibility of the plea.(m) After publication, in a suit for separation for the husband's adultery, the court will not, in the first instance, delay the hearing, in order that the wife may counterplead her letters annexed to the husband's interrogatories, from which connivance par delictum, (neither pleaded) is to be inferred; but it seems that it will not ultimately allow her to be barred by reason of such letters, without affording her an opportunity of explaining them. The court would not before the hearing rescind the conclusion, in order to admit an allegation counterpleading letters annexed to the interrogatories, nor would it direct such letters to be disannexed; but it seems that if at the hearing the letters appear important, it will then allow the admissibility of the allegation to be debated.(n)

Rescinding the Conclusion of the Cause.] --- In a suit for separation by reason of the wife's adultery, the conclusion of the cause may be rescinded generally, if the court is of opinion, after argument, that adultery is not sufficiently proved.(0) So in a testamentary cause, the court, after hearing the argument and delivering its opinion of the insufficiency of the evidence, may rescind the conclusion, in order that the identity of the alleged testator may be pleaded and proved. (p) 'The *conclusion of a cause was rescind. [ *403 ] ed, to allow the production of proof of the testator's handwriting:(9) And in a suit for a seaman's wages, the judge may properly rescind the conclusion of the cause for the admission of further evidence.(r)

In suits for adultery, the conclusion of the cause has been rescinded in some cases, in order to prove identity where there had been proof given of guilt. In Donellan v. Donellan,(s) a criminal connection between a man and woman was proved : the circumstances established would have satisfied a court of common law, and were sufficient to impress any mind with a moral conviction of the guilt of the wife, but there was no proof of her identity; and the only question was, whether the woman in the lodgings was the party in the cause. In a suit for separation by reason of the wife's adultery, after the arguments of counsel are closed, and after the court has delivered its opinion that the evidence did not prove the charge of adultery, although it established against her a case of great inpropriety and culpability, it is a fit exercise of discretion to rescind the conclusion of the cause for the purpose of admitting an allegation pleading further matter to establish the wife's guilt.(0) Where no indecent familiarity, proximate act, or personal freedom (except two kisses,) and no circumstances inferring adultery are proved, letters from the alleged paramour, found in the wife's possession, but not necessarily implying ihe commission of adultery, will not support a sentence of separation by reason of her adultery; but if the evidence raises a suspicion that

(m) Neeld v. Neeld, 4 Hagg. Eccl. R. 267. 415. (n) Turton v. Turton, 3 Hagg. Eccl. R. (9) Shawnessy v. Allen, 1 Lee's R. 9. 343. 346.

(m) Henley v. Morrison, 2 Hagg. Eccl. Ř. (0) Donellan v. Donellun, 2 Hagg. Eccl. Suppl. 147. R. Suppl. 144.

(8) 2 Hagg. Eccl. R. Suppl. 144, (p) Cargill v. Spence, 2 Hagg. Eccl. R. (t) Hamerton v. Hamerton, 2 Hagg. Eccl. Suppl. 146; Smith v. Smithson, 2 Lee's R. R. 618.

an adulterous intercourse is carrying on between the parties accused, the court may, upon affidavits, rescind the conclusion, and allow the husband to give in an allegation.(u) On a suggestion that a charge of collusion and connivance, raised in argument on his own evidence, was a surprise on the husband, there being no counter plea or interrogatories, the court refused to rescind the conclusion, in order that

letters might be pleaded, holding that the husband was [ 404 ]

bound to guard himself against suggestions arising not merely on the plea of the other party, but on his own evidence.(x) The court refused to rescind the conclusion of a cause of nullity of marriage, where the libel was not proved.(y) It seems doubtful whether the court has power to rescind the conclusion of a cause, after sentence, against the sense and consent of the party for whom it was given.(2)

Proof of a valid Marriage.]-In suits by reason of adultery, the first point to be established is a valid marriage; for there can be no adultery if there is no marriage. The fact of the legality of the marriage may be contested; and if it be not, the form of the sentence in a suit for divorce by reason of adultery pronounces that there has been a true and lawful marriage as well as a violation of it.(a) Where in answer to a libel for adultery, the marriage is asserted to have been illegal, the preliminary question as to the legality or illegality of the marriage must be decided before the husband is put to the expense of examining witnesses on the libel.(b) Plea of a former marriage is a good ground for staying proceedings. The question of the former marriage must be determined previously to entering upon the question of adultery,(c) and if a previous marriage be established, it will bar the suit.(d)

Separation not decreed for Misconduct short of Adultery.]— The court cannot separate on improper conduct short of actual adultery. The law does not require direct evidence of the very act committed at a specific time and place; but the court must be satisfied that actual adultery has been committed.(e) Where there is proof of indecent familiarity between the parties, or if the court is in any way satisfied that undue intimacy subsisted between them, then the court will much

more easily draw the conclusion that where the facilities [ *405 ]

*were so great, and the opportunity of access so easy, the crime of adultery might have been committed.(f)

Evidence of Adultery.)- It will be proper in this place briefly to advert to the rules of evidence which are adopted and acted on in the ecclesiastical courts with respect to the fact of adultery having been committed. Adultery being an act of darkness and of great secrecy, can hardly be proved by any direct means; therefore in relation to the proof of adultery, by reason of such difficulty, it happens

(u) Hamerton v. Hamerton, 2 Hagg. Eccl. (b) Mayhew v. Mayhew, 2 Phill. R. 11. R. 8.

(c) Robins v. Wolseley, 1 Lee's R. 616. (2) Crewe v. Crewe, 3 Hagg. Eccl. R. 123. (d) 2 Lee, 476. (y) Nokes v. Milward, 2 Addams's R. 402. (e) Hamerton v. Hamerton, 2 Hagg. Eccl. (z) Lawrence v. Maud, 1 Addams's R. R. 14; Rix v. Rir, 3 Hagg. Eccl

. R. 74. 481.

(f) Harris v. Harris, 2 Hagg. Eccl. R. (a) Guest v. Shipley, 2 Hagg. Cons. R. 379. 322 ; see Ayliffe Parer. 50.

that presumptive evidence alone is sufficient proof; and this presumptive proof is collected and inferred ex actibus propinquis, that is to say, from the proximity and nearness of the acts; and thus adultery may be proved by such inferences as are received and approved of either by law or nature.(g) In Williams v. Williams, (h) Lord Stowell said, " It is undoubtedly true, that direct evidence of the fact is not required, as it would render the relief of the husband almost impracticable; but I take the rule to be, that there must be such proximate circumstances proved as by former decisions, or in their own nature and tendency, satisfy the legal conviction of the court that the criminal act has been committed. The court will look with great satisfaction to the authority of established precedents; but where these fail, it must find its way as well as it can by its own reasoning on the particular circumstances of the case." The same learned judge also said, “It is a fundamental rule of evidence upon this subject, that it is not necessary to prove the direct fact of adultery, because if it were otherwise, there is not one case in a hundred in which that proof would be attainable; it is very rarely indeed that the parties are surprised in the direct fact of adultery. In every case almost the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion, and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, though many of them of a more obvious nature, and of more frequent occurrence, are to be *found in the ancient books; at the same time it is impossible to indicate them universally, because they may be

[ *406 ] infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man 10 the conclusion ; for it is not to lead a rash and intemperate judzment moving upon appearances that are equally capable of two interpretations ; neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The facts are not of a technical nature; they are facts determinable upon common grounds of reason, and courts of justice would wander very much from their proper office, of giving protection to the rights of mankind, if they let themselves loose to subtleties and remote and artificial reasonings upon such subjects. Upon such subjects the rational and legal interpretation must be the same.

It is the consequence of this rule that it is not necessary to prove a fact of adultery in time and place; circumstances need not be so specially proved as to produce the conclusion that the fact of adultery was committed at that particular hour, or in that particular room; general cohabitation has been deemed enough, and acted upon repeatedly as sufficient

(g) Ayliffe, Parer, 44, 45.

(h) 1 Hagg. Cons. R. 299.

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