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* Husband may sue for Divorce on ground of Wife's

Cruelty.)-The complaint of cruelty generally proceeds from the wife as the weaker person; but it may come from the man, and has done so in several cases.(z) Where the evidence clearly established that the wife was not mistress of her own passions, the court decreed a separation in a case of divorce by reason of cruelty, brought by the husband against the wife for “ violent and outrageous conduct."(a)

Desertion of Wife by Husband.]—The law does not approve the determination of a husband to leave his wife, and has provided the remedy of restitution. In the case of a suit instituted for a divorce by reason of cruelty, by a wife against her husband, the court cannot issue a monition for either party to return.(b) Lord Stowell said, that he could never make desertion a ground of separation, though in conjunction with acts of cruelty it frequently is; and though it may be thought hard to send a wife back to a husband, who has given her such a proof of alienated affections, yet the court does not send her back without due care for her reception ; for the monition is, not only that he shall take her back, but that he shall treat her with conjugal kindness; and though the court cannot interfere in the minute detail of family life, for much must ever be left to the consciences of individuals, yet the court will see its monitions so far obeyed, that the great obligation of conjugal duty shall be complied with.(c) If a wife proceeding against her husband for cruelty and adultery was not originally justified in withdrawing from cohabitation, the court must pronounce her under the obligation to return.(d)

Reconciliation after Cruelty.]—After a reconciliation, fresh acts of cruelty will revive former acts of cruelty, and also of adultery.(e) If legal cruelty be established, a subsequent reconciliation and matrimo

nial intercourse form a legal bar to *a separation for [ *436 ] such preceding cruelty;

And the question then is, whether any subsequent acts take place, furnishing fresh grounds of legal complaint, or at least reviving former wrongs, and in connection with those former wrongs, creating a reasonable apprehension of a renewal of ill-treatment.(f) Lord Slowell thus described condonation and its effects ; Condonation is a conditional forgiveness, that does not take away the right of complaint in case of continuation of adultery, which operates as a reviver of former acts."(g) The force of condonation varies according to circumstances. The condonation by a husband of a wife's adultery, still more repeated reconciliations after repeated adulteries, create a bar of far greater effect than does the condonation by a wife of repeated acts of cruelty. Cruelty generally consists of successive acts of ill-treatment, if not of personal injury, so that something of a condonation of the

(z) Waring v. Waring, 1 Hagg. Cons. R. (d) D’Aguilar v. D'Aguilar, 1 Hagg. 154.

Eccl. R. 784. (0) Kirkman v. Kirkman, 1 Hagg. Cons. (e) Worsley v. Worsley, 2 Lee, 572. R. 409.

) Westnicath v. Westmeath, 2 Hagg. (6) Evans v. Evans, 1 Hagg. Cons. R. 119. Eccl. R. Suppl. 112. See ante, p. 419.

(g) Ferrers v. Ferrers, 1 Hagg. Cons. R. (c) Ecans v. Evans, 1 Hagg. Cons. R. 130. See post, p. 445. 120.

earlier ill-treatment necessarily takes place.(h) If a wife after legal cruelty consents to a reconciliation and to matrimonial cohabitation, former injuries would revive by subsequent misconduct of a slighter nature than would constitute original cruelty, though the reconcilialion would be a bar if no further ill-treatment took place.(i) A suit for restitution of conjugal rights strongly infers that at the time of the instituting such suit the party had no reasonable ground to apprehend personal violence; but it does not amount to an absolute bar to a sentence of separation for antecedent cruelty ; a fortiori it would not exclude the wise from pleading acts of harshness and severity previous to such suit, in conjunction with acts of cruelty subsequently.(j).

Delay in complaining.)-A wife's delay in applying to the ecclesiastical court for redress from cruelty does not infer that there is no ground of complaint, nor even raise a presumption against the truth of the charge. An intermediate separation so approximates two periods of cohabitation, that *acts of cruelty happening before the separation may be looked upon as if they had

[ *437 ] happened recently.(k) What

may be pleaded in cases of cruelty.]—A party before the court in a suit for divorce by reason of cruelty may plead acts of adultery subsequent to the citation.(1) In a similar suit brought by the wife, an acquittal of her witnesses (for a conspiracy in counselling her to institute the suit) upon an indictment laid by the husband, and his evidence thereon, in which he admitted and repeated certain accusations originally alleged in the libel as acts of cruelty, may be pleaded as a continuation and admission on oath of such cruelty.(m)

In Best v. Best,(n) it was held that, in a suit against the husband for cruelty, a defensive allegation, pleading distinctly and substantively adultery by the wife, was admissible without a separate citation on the part of the husband; and this practice has since been acted upon in analagous cases. In Barrett v. Barrett,(o) the wife was permitted, in a suit instituted against her husband by reason of cruelty, to give in additional articles to the libel pleading acts of adultery. Under a citation for cruelty only, in a suit for separation by the wife, adultery by the husband occurring prior to the institution of the suit, but sworn to have come recently to the wife's knowledge, may be pleaded, even though publication of the evidence on the libel, and on a responsive plea, is about to pass.(p) Cruelty cannot be pleaded responsively to the allegation admitted on behalf of the husband, charging the wise with adultery, for there is no point more clearly settled than that cruelty cannot be pleaded in bar of a charge of adultery :(9) although it may be pleaded as introductory to the history of the adulterous intercouse.(r)

(h) Westmeath v. Westmeath, 2 Hagg. 22. Eccl. R Suppl. 113.

(m) Bray v. Bray, 1 Hagg. Eccl. R. 163. : (i) Westmeath v. Westmeath, 2 Hagg. (1) Addams, 411. Eccl. R. Suppl. 114.

(0) 1 Hagg. Eccl. R. 22. ()) Neeld v. Neeld, 4 Hagg. Eccl. R. (p) Sampson v. Sampson, 4 Hagg. Eccl. R. 268.

286. (k) D'Aguilar v. D’Aguilar, 1 Hagg. (9) Harris v. Harris, 2 Hagg. Eccl. R. Ecol. R. 780, 781. See ante, p. 416.

411; ante, p. 400. (1) Burrett v. Barrett, 1 Hagg. Eccl. R. (r) Ashley v. Ashley, 3 Phill. R. 500.

Husband liable for Wife's Necessaries when she leaves him for Cruelty.(s)]—If a husband conducts himself towards his wife with

such a degree of misconduct and cruelty as to render [ *438 ] #it no longer safe for her to remain in his house, she is not to be turned out into the street to starve, or to seek relief in the parish workhouse, but is justified in leaving her home, and goes forth into the world with a credit for the necessaries of life suitable to her condition. A husband who has so conducted himself cannot determine his liability by a mere request on his part that she will return; and unless there be an amicable arrangement, he can only compel the return of his wife by obtaining a decree for that purpose in the spiritual court.(t) But the husband is not liable for money expended in the education of his children, whom the wife had taken with her on leaving his house on account of his cruel treatment.(u) A wise who has reasonable ground to apprehend personal violence from her husband is justified in leaving him ; and if the apprehension be such as a jury shall deem to have been felt upon reasonable grounds, the husband is liable to the payment of board and lodging provided for his wife.(x) But where there was no evidence of actual terror or violence, but the principal circumstance relied upon was the husband having placed a profligate woman at the head of his table, and having told his wife, she did not like to dine there she might dine in her own chamber, although such conduct was highly improper, it was held that the husband was not liable for necessaries, because she might have had them if she stayed in her husband's house, and she had her remedy by a suit for a divorce a mensa et thoro, and for alimony.(y) In another case it was held, that if a husband, by bringing another woman under his roof, renders his house unfit for the residence of his wife, and she thereupon removes and lives, apart from him, he is bound to provide her with medicines in sickness during the separation.(z) The tradesman supplying necessaries to a woman liv. ing apart from her husband, cannot recover against him without showing that there was some justifiable cause for her so living.(a)


1. Of Compensation of the Crime or Recrimination
2. Of Condonation
3. Of Connivance

439 445 449

The three general grounds usually pleaded in answer to a suit instituted for obtaining a divorce for adultery are recrimination or

(8) See ante, pp. 421, 422; post, as to ali. Moore, 482; 2 C. & P. 22. mony.

(y) Horwood v. Heffer, 3 Taunt. 421. See (1) Emery v. Emery, 1 Y. & J. 501; Corbett v. Poelnitz, 1 T. R. 5. 6 Price, 336. See Harris v. Morris, 4 Esp. (2) Aldis v. Chapman, 1 Selw. N. P. 263, 41.

4th ed. (u) Hodges v. Hodges, Peake's Addl. (a) Mainwaring v. Leslie, 2 Carr. & P. Cases, 79; 1 Esp. 441.

507; Clifford v. Laton, 3 Carr. & P. 15. (1) Houliston v. Smyth, 3 Bing. 127; 10

compensatio criminis, a compensation of the crime, condonation, and connivance.(a) According to Ayliffe there are five cases wherein a divorce cannot be had on account of adultery :(6) First, if both the married parties are convicted of adultery; for since there are some misdemeanors that are taken away by mutual compensation, of which adultery is one; a compensation may be made of this crime, for it is unjust for one person to judge of another, and not to give another leave to judge of himself. Secondly, if the husband himself prostitutes his own wise. Thirdly, if the wife be free from any fault, as not having an intention of coinmitting fornication or adultery; as when a woman marries another man through belief that her former husband is dead, for upon the return of the former husband she is bound to forsake her second husband and to return to her first, unless after his return she, with his consent, remain with the second, or unless another person had carnal knowledge of her through error and mistake, she believing him to be her own husband. Fourthly, if she be forced or ravished. And fifthly, if the husband has reconciled himself to her after the adultery committed by her, or knowingly retains her after she has committed adultery.(c)


The remedy of divorce by a clear principle of law is denied to a party who is guilty of the same offence as that of the #party complained of. A compensation of the crime

[ *440 ] hinders a divorce, that is, if the defendant proves that the plaintiff hath also committed adultery, the defendant is absolved as to the matters requested in the libel of the plaintiff.(d) The doctrine of the ecclesiastical courts of England admitting a plea of recrimination, or compensatio criminum, is founded on ihe principle that a man cannot complain of the breach of a contract which he has violated.(e) This rule was admitted in England, and it was unanimously recognized by all the delegates as the standard canon law of the country in all cases of divorce. (f) But it seems that in Scotland recrimination is no bar to a divorce for adultery.(g)

(a) Crewe v. Crewe, 3 Hagg. Eccl. R. adulterium affectus, illam condonat. Sanchez 129.

de Divortio, lib. 10, disp. 5. (6) Parer. 226.

(d) Conset. 280, pl. 5; Clarke's Praxis, (6) Septem casus ex jure Canonico collec. tit. 115; Cockburn, 126, pl. 3. Compensati

, enumerantur ab universis doctoribus, in tio criminis (id est) si pars rea probaverit quibus non licet ob adulterium celebrare partem agentem etiam adulterium commisdivortium ; qui ad triplex caput reducuntur. sisse, absolvenda est pars rea, quoad petita in Primun est; quia alier conjux est ejusdem libello partis agentis. Oughton, tit. 214, pl. criminis particeps aut pariter adulterans; 1; see Clarke's Praxis, tit. 115. aut adulterio alterius consensum præbens. (e) Beeby v. Beeby, i Hagg. Eccl. R. 790. Ex quo primus et secundus casus consurg. i Lord and Lady Leicester's case, 1737, unt. Secundum, est quia culpa vacat adul. cited 1 Hagg. Cons. Ř. 148. terium, ac proinde non est formaliter adul. (g) Jardine, Dict. 338; Lockhart Fac. terium, sed tantum materialiter, ex quo ori. Coll. 7, Dec. 1799; Ersk. Inst. by Ivory, B. untur tertius, quartus, quintus et sextus 1, lit. 6, s. 5, n.; but see Lord Bankton, B. Casus. Tertium est ; quia conjux injurio ob 1, til 5, s. 128.

The doctrine of recrimination, or compensatio criminum, a set-off of equal guilt on the part of the complainant, is founded in reason and propriety; it would be hard if a man could complain of the breach of a contract which he has violated ; if he could complain of an injury when he is open to a charge of the same nature. The husband, who is the guardian of the purity of his own house, cannot with propriety complain of the pollution which he has introduced, and after having first violated his marriage vow, his remedy is barred. Under circumstances of guilt on both sides, the court will dismiss both parties, and leave them to find sources of mutual forgiveness in the humiliation of mutual guilt.(h) Either a husband or a wife who enters the court with a criminal imputation on the conduct of the other, must be [ *441 ]

free from all reasonable imputation *of the same na.

ture.(i) In a suit for separation by reason of the wife's adultery, the husband must prove his case so that his own evidence shall not create a bar by reason of connivance or compensatio criminum, for the wife is entitled to the full benefit of such evidence.(k) This doctrine was not peculiar to the common law, which looked unfavourably upon a complaining party who was himself an offender in the same way; for the civil law certainly did the same to the extent of not barring the wife's demand of dower against such a husband.(0)

Recrimination cannot be pleaded in a criminal prosecution against the wife' for adultery, for in such a case the public and not the husband is supposed to be the injured party, and it can be no excuse for the wife's breach of the good order of society that the husband had previously been equally culpable.(m)

When Recrimination operates as a bar.]-In a suit for separation a mensa el thoro, although the wife's adultery was fully established, she was dismissed, because on a recriminatory allegation she proved facts antecedent to her adultery, from which the court necessarily presumed such guilt on the husband's part as amounted 10 a compen. sutio criminum.(n)

In a suit for a separation for the wife's adultery with the husband's brother, and where on the part of the wife an allegation recriminatory, and pleading connivance had been admitted, the court, at the final bearing of the cause, refused a sentence of separation and dismissed the suit, holding that the connivance being established, it was unnecessary to inquire into the charges of adultery against the husband.(o)

Where adultery is pleaded by way of recrimination, in bar of a [ #442 ]

divorce it is not necessary to prove such strong facts as

*are required for convicting the other party in a suit for divorce, for in order to obtain a divorce the husband must have a pure

(h) Beeby v. Beebry, 1 Hagg. Eccl. R. 790. 148: 80 under the Lex Julia, “Quæ res (i) Forsler v. Forster, 1 Hagg. Cons. R. potest et virum damnare, non rem ob comr 153.

pensationem mutui criminis inter utrosque (k) Timmings v. Timmings, 3 Hagg. communicare.” Dig. Lib. 48, tit. 5, 13, 5. Eccl. R. 77.

in) Astley v. Astley, 1 Hagg. Eccl. R. (1) Dig. 24, 3, 39 ; Dig. 48, 5, 13, 5; 714; see Best v. Best, 1 Addams R. 411. Proctor v. Proctor, 2 Hagg. Cons. R. 297; (0) Denniss v. Denniss, 3 Hagg. Eccl. R. Forster v. Forsler, 1 Hagg. Cons. R. 147. 348, n.

(m) Forster v. Forster, 1 Hagg. Cons. R.

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