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factory evidence must therefore be adduced as to the identity of the party.(6)
One rule upon the proof of identity is, that it is to be *proved, not merely by the acknowledgment to the officer
[ *414 ] who served the citation and by the appearance of the party in the cause, but by extrinsic evidence.(c)
Another rule is, that the identity must be proved by other testimony than that of the parties themselves, it must be proved by witnesses who can speak to the facts from their own personal knowledge. In Searle v. Price,(d) Lord Stowell said, “in cases of adultery, no confession of the fact can be admitted alone, and in cases of this description it is the more necessary to guard against the imposition of making false acknowledgments to obtain a separation. A married person may afterwards wish the marriage avoided; for this purpose a former marriage might be propounded by the one party and admitted by the other; but the court could not rely on declarations thus made, and that too on oath, in furtherance of the common purposes. They might go further, by substituting false parties, who might admit themselves to be parties in the cause when they were not, and various impositions of this nature might be resorted to, to destroy the rights of the real partics. Even a decree of confrontation would not protect the court in such a case, as the real parties might be unknown to the officers of the court unknown to the practisers, and certainly unknown to the court itself, so that in this way a real marriage might be set aside without the least knowledge on the part of those interested in it.”
Verdicts in an action for Criminal Conversation.](e) – In suits by reason of adultery it is usual to plead in the ecclesiastical courts the verdict, where damages have been obtained against the adulterer, but the introduction of verdicts was long resisted in that court, and they are now introduced merely as circumstantial evidence. Even where an action which fails has been brought, that is not a matter from which any thing can be drawn to the prejudice of the evidence actually adduced. The failure of the action may arise from a variety of circumstances not apparent to the ecclesiastical judge.(f) An action at law for the recovery of damages is not analogous to *proceedings for a divorce. It is not brought against the
[ *415 ) same person, but against the adulterer, for the injury sustained ; and where the husband has not felt the injury, no damages, or at least nominal damages only, will be given. But in the ecclesiastical court it is not the measure of the injury which is to undergo consideration, but whether the complainant is entitled to a separation or not.(g) The verdict is not evidence against the woman, it is introduced into
(6) Conset. 280. Caveat etiam judex de exploratam habentes dictæ confilentis mulihis adulterii voluntariis confessionibus ; ne eris.-Oughton, tit. 213, ss. 5, 6. persona supposititia (quod meis diebus bis (c) Williams v. Williams, 1 Hagg. Cons. novi) coram co, ad adulterium libellatum R. 305. confitendurn, producatur, quarnvis coram eo (d, 2 Hagg. Cons. R. 189. allegetur, eam esse illius viri uxorem, qui (e) See ante, p. 387—394. divortium petit. Huic dolo, et fraudi, facile (f) Loreden v. Loveden, 2 Hagg. Cons. obviabit judex (si de eo suspicatur) curando R. 51, 52; see Elwes v. Elwes, I Hagg. ut intersint coram co, ante sententiæ prola. Cons. R. 288, n. tionem, personæ aliquæ, fide dignæ notitiam (8).1 Hagg. Cons. R. 132.
the proceedings to satisfy the ecclesiastical court that the husband has honestly endeavoured to obtain all the redress that the law will afford.(h) In ordinary cases, it may be true, that a verdict for damages in an action of crim. con. has little or no weight in the proceed. ings instituted between the husband and wife in the ecclesiastical court, for the verdict is considered as res inter alios ucta ; and strictly and technically speaking, it is so. But such a verdict may have some weight in these courts, as a rest of the credit of the witnesses, where the adulterer was fully and timely apprised who they were to be, and had full time to discredit them, if that had been possible, either at common law or in the ecclesiastical court. Especially where the adulterer has made every effort in defence from the time that the charge was originally set up against him, and has manifestly acted in concert with the wise for the protection of her character and of his own; under such circumstances the real substance of the proceeding at common law is not inter alios acta.(i)
Collusion between the Parties in Actions.]—Collusion is an agreement between the parties for one to commit, or appear to commit, a fact of adultery, in order that the other may obtain a remedy at law as for a real injury. The law permits no co-operation for such purpose, and refuses a remedy for adultery committed with such an intent; but it is not proof of collusion, that after the crime is committed both parties are desirous of a separation. A judgment by default against the paramour, and no defence on the part of the wife, are not proof of collusion.(j) It was forcibly contended that a verdict giving [ *416 ]
large damages rebuts the argument of connivance; be
cause it *shows either that no such defence was attempted, or that it was not proved. It has been often observed, that a verdict to the disadvantage of the husband is strong, because he is a party to both proceedings, and therefore such a verdict will operate in other courts; but a verdict against the adulterer is slight evidence against the wife, who is no party to the action, and who has no control in the conduct of it. Ai the time of the trial the wife is often at variance with the adulterer; he may have good reasons not to set up a defence which she may sustain. The defence of connivance is hazardous where the action is for damages, for it is to be proved by circumstances, and if it should fail, it will influence the damages. In a case where part of the wife's defence was, that the paramour was a man of debauched character, but he could not set up the turpitude of his own character, the court was satisfied that “it was impossible that the defence of connivance could have been submitted to the Court of King's Bench, and that such heavy damages could have been given on the evidence then before the ecclesiastical court, the judge of the latter court therefore would not suffer his mind to be influenced by the damages."(k)
Lapse of Time before Suit is instituted.]-Lapse of time alone is not a sufficient bar in suits for divorce by reason of adultery.(1) There is
(h) 1 Hagg. Cons. R. 306.
(k) Moorsom v. Moorsom, 3 Hagg. Eccl. (i) Halford v. Halford, Poynter on Mar. R. 107, 108. riage, 201, 2d ed.
(1) Ferrers v. Ferrers, 1 Hagg. Cons. R. (j) Crewe v. Crewe, 3 Hagg. Eccl. R: 134; see ante, p. 210, 211. 130. 133.
no limitation of time imposed by statute, or by any rule which the
The Effect of Deeds of Separation in the Ecclesiastical Courts.).
(m) Mordaunt v. Mordaunt, 2 Hagg. 279. Cons. R. 135, n.; see Popkin v. Popkin, 1 (9) Richardson v. Richardsan, 1 Hagg. Hagg. Eccl. R. 766, n.
Ecci, R. 6. (n) Mortimer v. Mortimer, 2 Hagg. Cons. (r) Cited 3 Hagg. Eccl. R. 155, n. See R. 313.
Best v. Best, 2 Phill. R. 155.
In legal contemplation, the legal character of husband and wife continues to exist notwithstanding any private understanding or agreement to live separate, which is not recognised by the law ;($) therefore [ *418 ]
such deeds cannot be *pleaded in bar of a suit for divorce
by reason of adultery. In Beeby v. Beeby,() which was a cause of divorce by reason of the adultery of the wife, it was objected that the libel 'showed that the parties had lived in a state of separation, and that it was not competent to the husband to bring a suit of divorce, as he would not at common law be allowed to bring an action for damages.(u) But the court observed, that separation is not considered by the ecclesiastical court as a bar to divorce for adultery either previous or subsequent to the act alleged. It was not an answer to such a charge even in cases of malicious desertion. But in cases of voluntary separation, it would be more unreasonable that the wife should be at liberty to impose a spurious issue on the husband. The ecclesiastical court does not look on articles of separation with a favourable eye; but they are not held so odious as to be considered a bar to the charges of adultery.
If a deed of separation be so worded as rightly to found a presumption that it might, according to the intention, give the wife perfect free agency, so as to sanction even adultery committed by the wife living apart from the husband under that deed, it seems that such presumption must be rebutted by evidence, in order to entitle the husband to a sentence of divorce by reason of such adultery committed by the wife after a separation. For though the mere separation of husband and wife is no bar to relief at the suit of one for adultery committed by the other, yet where a separation subsisted at the time of the adultery charged, it is peculiarly incumbent on the husband to make out satisfactorily to the court that he was not in any way accessary to the injury complained of. The Court of Appeal, however, without deciding whether the terms of the deed amounted to a license to the wife for the commission of adultery, held, that such a presumption was rebutted by other evidence adduced by the husband.(2)
(8) Smyth v. Smyth, 4 Hagg. Eccl. R. apart from him, in such manner avd at such 514; Nush v. Nash, 1 Hagg. Cons. R. 142; place and places, and with such person and Beeby v. Beeby, id. n.; S. C. 1 Hagg. Eccl. persons, as the wise should from time to time R. 789; Mortimer v. Mortimer, 2 Hagg. ihink proper to choose (notwithstanding her Cons. R. 318; Barker v. Barker, 2 Addams, coverture), and as if she were sole and un285; Sullivan v. Sullivan, id. 299; West. married. And that the husband would not meath v. Westmeath, Jac. 126; 2 Roper on disturb or molest her in her person or inanner Husband and Wife, by Jacob, 270, n. of living, nor at any time or times thereafter,
(1) I Dagg. Cons. Ř. 142, 143, n. either by ecclesiastical' censures or other. (u) Sce ante, p. 390.
wise, require or endeavour to conipel her to (2) Barker v. Barker, 2 Addams, 287, cohabit, &c. with him the said husband, and 288. The parts of this deed principally would not for that purpose or otherwise use relied on to ground that presumption, were any force, violence, or restraint to her perin substance as follows, and such as are son, or sue or cause to be sued any person usually inserted in deeds of separation : The or persons whomsoever for or on account of husband and wife mutually declared and receiving, harbouring, lodging, protecting, or agreed that they would continue to live sep- entertaining her, but that she might in all arately and apart from each other hence. things live and act as if she were sole and forth for and during the time of their natural unmarried, without the restraint or coercion lives. And the husband covenanted with of the said husband, or of any person or perthe wife that it should be lawful for her, sons by or through his means, ussent, confrom tiine to time, and at all times during sent, privity or procureincat. the present coverture, to live separately and
*In Sullivan v. Sullivan,(y) similar provisions in a deed of separation were held not lo amount to a license for
[ *419 ] the wife to commit adultery, but inserted merely for enforcing, as far as may be, the continuance, and for preventing the determination, of the separate state in which the parties covenanted to live, by means of a suit for restitution of conjugal rights, although perfectly nugatory for that purpose.
Malicious Desertion.]—Malicious desertion is a ground of divorce in some countries, but not in England ;(z) and although it will not justify a wife in resorting to unlawful pleasures, it is not considered as a matter perfectly light in the behaviour of a husband complaining of his wife's adultery, that he has withdrawn himself without cause and without consent from the discharge of duties which belong to the very institution of marriage, and if he does so, he ought to feel less surprise if consequences of human infirmity shall follow.(a) The principal feature of malicious desertion is, leaving the wife without any provision. Mere absence of the husband abroad for a considerable time, under particular circumstances, was held not to constitute malicious desertion.(6)
A divorce, on proof of adultery of the wife, is not barred by the desertion of the husband from a conviction of her crime, or by his not providing for her from inability to do so.(c)
Wife's Rights how affected by Adultery.]—The husband does not forfeit his right to be tenant by the curtesy by living *in adultery.(d) So the adultery of the wife was no bar of [ *420 ] the wife's dower at common law.(e) Indeed it could not have been otherwise, as adultery is an offence of ecclesiastical jurisdiction only, and of which the courts of common law took no cognizance. However, for the purpose of preventing that offence, or more probably with the view of protecting the heir against the danger of introducing a supposititious offspring into the family, it is enacted by statute 13 Edw. I. c. 34, commonly called the Statute of Westminster the Second, “ that if a wife willingly leave her husband and go away and continue with her avowterer, she shall be barred forever of an action to demand her dower that she ought to have of her husband's lands if she be convicted thereupon.” The forfeiture of the dower depends upon the fact of a living from the husband, and not upon the circumstances attending the elopement; and the statute was construed to include a woman who leaves her husband with her own free will, and afterwards lives in adultery. (f) In an action of dower, if elopement be pleaded, a replication that it was by the husband's license is bad.(g) A divorce a vinculo matrimonii is a good plea in bar of dower.(b) In Powell v. Weeks it is stated that a divorce on account of adultery is no bar of dower, because it is only a mensa et thoro, and not a vinculo matrimonii;(i) but according to another report
(y) 2 Addams, 299.
(e) 2 Inst. 435.
(g) Coot v. Berty, 12 Mod. 232.