factory evidence must therefore be adduced as to the identity of the party.(b) One rule upon the proof of identity is, that it is to be [ *414 ] *proved, not merely by the acknowledgment to the officer 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 parties. 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 [ *415 ] *proceedings for a divorce. It is not brought against the 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 (b) Conset. 280. Caveat etiam judex de his adulterii voluntariis confessionibus; ne persona supposititia (quod meis diebus bis novi) coram eo, ad adulterium libellatum confitendum, producatur, quamvis coram eo allegetur, eam esse illius viri uxorem, qui divortium petit. Huic dolo, et fraudi, facile obviabit judex (si de eo suspicatur) curando ut intersint coram co, ante sententiæ prola. tionem, personæ aliquæ, fide dignæ notitiam exploratam habentes dicta confitentis mulieris.-Oughton, tit. 213, ss. 5, 6. (c) Williams v. Williams, 1 Hagg. Cons. R. 305. (d) 2 Hagg. Cons. R. 189. (f) Loveden v. Loveden, 2 Hagg. Cons. R. 51, 52; see Elwes v. Elwes, I Hagg. Cons. R. 288, n. (g) 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 proceedings instituted between the husband and wife in the ecclesiastical court, for the verdict is considered as res inter alios acta; and strictly and technically speaking, it is so. But such a verdict may have some weight in these courts, as a test 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 wife 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 large damages rebuts the argument of connivance; be[ *416 ] 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. At 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. (i) Halford v. Halford, Poynter on Mar. riage, 201, 2d ed. (j) Crewe v. Crewe, 3 Hagg. Eccl. R. 130. 133. (k) Moorsom v. Moorsom, 3 Hagg. Eccl. R. 107, 108. (1) Ferrers v. Ferrers, 1 Hagg. Cons. R. 134; see ante, p. 210, 211. no limitation of time imposed by statute, or by any rule which the court has laid down for itself.(m) The first thing which the court looks to when a charge of adultery is preferred, is the date of the charge relatively to the date of the criminal act charged, and known by the party; because if the interval be very long between the date and knowledge of the fact, and the exhibition of them to the court, it will be indisposed to relieve a party who appears to have slumbered in sufficient comfort over them; and it will be inclined to infer either an insincerity in the complaint, or an acquiescence in the injury, whether real or supposed, or a condonation of it. It therefore demands a full and satisfactory explanation of this delay, in order to take it out of the *reach of such interpretations.(n) For- [ *417 ] bearance in bringing the suit may not only be excusable, but meritorious, in hopes of reconciliation; and there is a great difference between the husband and the wife on this point. The husband may by his authority command the adherence and obedience of the wife; whereas the woman, in case of elopement and criminality of the husband, must adopt some other mode than that of compulsion. Therefore, even where the suit might have been brought before consistently with prudence, the court would not lay down as a rule that a woman not bringing her complaint immediately on the discovery should be afterwards barred from bringing her case before the court.(0) Though a husband is bound to take prompt notice of the infidelity of his wife, and is liable to have his neglect of so doing urged against him when afterwards seeking his legal remedy, yet this doctrine is not to be pressed against a wife unless in very particular cases. Even in the case of a husband, it is not invariably expected that he should show the time when the charge first came to his knowledge. It might be prudent and expedient for the success of his suit that he should do so, but it is not absolutely necessary-something must be allowed to convenience.(p) In a cause of divorce, articles to account for the husband's delay in instituting the suit are admissible, but need not be examined to unless the defence renders it necessary to justify his conduct.(q) In Loader v. Loader,(1) on proof of the wife's guilt, the court called for an affidavit from the husband, explanatory of his delay to bring the suit, and being satisfied therewith, pronounced the sentence. The husband is not barred of his divorce by reason of his having executed a deed of settlement after knowledge of his wife's adultery, allowing her a separate income.(z) A husband who, upon the discovery of his wife's adultery, commences a suit against her for divorce, but abandons such suit through want of funds to carry it on, is not thereby barred from seeking a divorce at a subsequent period.(a) The Effect of Deeds of Separation in the Ecclesiastical Courts.]— (m) Mordaunt v. Mordaunt, 2 Hagg. Cons. R. 135, n.; see Popkin v. Popkin, 1 Hagg. Eccl. R. 766, n. (n) Mortimer v. Mortimer, 2 Hagg. Cons. R. 313. (0) Ferrers v. Ferrers, 1 Hagg. Cons. R. 130. See post, 436. (p) Kirkwall v. Kirkwall, 2 Hagg. C. R. AUGUST, 1841.—U 279. (9) Richardson v. Richardson, 1 Hagg. Eccl. R. 6. (r) Cited 3 Hagg. Eccl. R. 155, n. See Best v. Best, 2 Phill. R. 155. (z) Coode v. Coode, 1 Curteis, 757. 762, 763. (a) Ibid, 1 Curteis, 755. 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 ;(s) therefore such deeds cannot be *pleaded in bar of a suit for divorce [ *418 ] by reason of adultery. In Beeby v. Beeby,(t) 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.(x) (8) Smyth v. Smyth, 4 Hagg. Eccl. R. 514; Nash v. Nash, 1 Hagg. Cons. R. 142; Beeby v. Beeby, id. n.; S. C. 1 Hagg. Eccl. R. 789; Mortimer v. Mortimer, 2 Hagg. Cons. R. 318; Barker v. Barker, 2 Addams, 285; Sullivan v. Sullivan, id. 299; West meath v. Westmeath, Jac. 126; 2 Roper on Husband and Wife, by Jacob, 270, n. (t) Bagg. Cons. R. 142, 143, n. (u) Sce ante, p. 390. (x) Barker v. Barker, 2 Addams, 287, 288. The parts of this deed principally relied on to ground that presumption, were in substance as follows, and such as are usually inserted in deeds of separation : The husband and wife mutually declared and agreed that they would continue to live separately and apart from each other hence forth for and during the time of their natural lives. And the husband covenanted with the wife that it should be lawful for her, from time to time, and at all times during the present coverture, to live separately and apart from him, in such manner and at such place and places, and with such person and persons, as the wife should from time to time think proper to choose (notwithstanding her coverture), and as if she were sole and unmarried. And that the husband would not disturb or molest her in her person or manner of living, nor at any time or times thereafter, either by ecclesiastical censures or otherwise, require or endeavour to compel her to cohabit, &c. with him the said husband, and would not for that purpose or otherwise use any force, violence, or restraint to her person, or sue or cause to be sued any person or persons whomsoever for or on account of receiving, harbouring, lodging, protecting, or entertaining her, but that she might in all things live and act as if she were sole and unmarried, without the restraint or coercion of the said husband, or of any person or persons by or through his means, assent, consent, privity or procurement. [ *419 ] *In Sullivan v. Sullivan,(y) similar provisions in a deed of separation were held not to amount to a license for 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 ;(2) 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.(b) 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.(h) 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. (z) 2 Addams, 302. (a) 1 Hagg. Cons. R. 154, 155. (b) Sullivan v. Sullivan, 2 Addams, 303. (e) 2 Inst. 435. (f) Hetherington v. Graham, 6 Bing. 135; 3 Moore & P. 135; see 2 Inst. 434. (g) Coot v. Berty, 12 Mod. 232. (h) Co. Litt. 32 a, n. 9. (i) Noy, R. 108. |