[ *435 ] *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.(2) 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 matrimonial 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 Stowell 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

(2) Waring v. Waring, 1 Hagg. Cons. R.

154.

(a) Kirkman v. Kirkman, 1 Hagg. Cons. R. 409.

(b) Evans v. Evans, 1 Hagg. Cons. R. 119. See ante, p. 419.

(c) Erans v. Evans, 1 Hagg. Cons. R.

120.

(d) D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. 784.

(e) Worsley v. Worsley, 2 Lee, 572. (f) Westmeath v. Westmeath, 2 Hagg. Eccl. R. Suppl. 112.

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

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 reconciliation 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 wife 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.(7) 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 wife with adultery, for there is no point more clearly settled than that cruelty cannot be pleaded in bar of a charge of adultery ;(q) although it may be pleaded as introductory to the history of the adulterous intercouse.(r)

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 wife 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, that if 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 living apart from her husband, cannot recover against him without showing that there was some justifiable cause for her so living.(a)

[ *439 ] *SECT. V.-OF THE CAUSES WHICH BAR DIVORCE.

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 alimony.

(t) Emery v. Emery, 1 Y. & J. 501; 6 Price, 336. See Harris v. Morris, 4 Esp.

41.

(u) Hodges v. Hodges, Peake's Addl. Cases, 79; 1 Esp. 441.

(x) Houliston v. Smyth, 3 Bing. 127; 10

Moore, 482; 2 C. & P. 22.

(y) Horwood v. Heffer, 3 Taunt. 421. See Corbett v. Poelnitz, 1 T. R. 5.

(z) Aldis v. Chapman, 1 Selw. N. P. 263, 4th ed.

(a) Mainwaring v. Leslie, 2 Carr. & P. 507; Clifford v. Laton, 3 Carr. & P. 15.

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 :(b) 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 wife. Thirdly, if the wife be free from any fault, as not having an intention of committing 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)

1. OF COMPENSATION OF THE CRIME OR RECRIMINATION.

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 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 the 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.

(b) Parer. 226.

(e) Septem casus ex jure Canonico collec. ti, enumerantur ab universis doctoribus, in quibus non licet ob adulterium celebrare divortium; qui ad triplex caput reducuntur. Primum est; quia alter conjux est ejusdem criminis particeps aut pariter adulterans; aut adulterio alterius consensum præbens. Ex quo primus et secundus casus consurg. unt. Secundum, est quia culpa vacat adulterium, ac proinde non est formaliter adul terium, sed tantum materialiter, ex quo ori. untur tertius, quartus, quintus et sextus casus. Tertium est; quia conjux injurio ob

(d) Conset. 280, pl. 5; Clarke's Praxis, tit. 115; Cockburn, 126, pl. 3. Compensatio criminis (id est) si pars rea probaverit partem agentem etiam adulterium commis sisse, absolvenda est pars rea, quoad petita in libello partis agentis. Oughton, tit. 214, pl. 1; see Clarke's Praxis, tit. 115.

(e) Beeby v. Beeby, 1 Hagg. Eccl. R. 790. (f) Lord and Lady Leicester's case, 1737, cited 1 Hagg. Cons. R. 148.

(g) Jardine, Dict. 338; Lockhart Fac. Coll. 7, Dec. 1799; Ersk. Inst. by Ivory, B. 1, tit. 6, s. 5, n.; but see Lord Bankton, B. 1, tit 5, s. 128.

cohabitation. Lord Stowell said, "The texts of the canon law, the dicta of all commentators and professors, concur in holding out that there is no distinction between a delinquency of the husband committed before or after a wife's infidelity in its complete efficiency as a bar to a claim of legal separation." So by the law of this country, a husband forfeits his remedy of a legal separation from his offending wife by his incontinence, proved to have taken place subsequently to the discovery of his wife's infidelity, although there may be no reason to presume otherwise than that he had always confined himself to his marriage bed till after the voluntary separation which followed the discovery.(x) In such a case many consequences of considerable hardship will press severely upon a husband, whose own irregularities may naturally be supposed to have originated mainly in the previous failure of duty on the part of the wife. He will be prima facie the father of the spurious offspring which the wife may happen to produce. He is prima facie liable for the debts which the wife may con[ *444 ] tract in this state of separation. He will be under the necessity of proving, by means not always easy or convenient to be had, an absolute non-intercourse, in order to deliver himself from these painful obligations whenever they press. It is to be added, that he is likewise to be be barred, in consequence of a failure in an application for a divorce, from obtaining that complete relief which the legislature dispenses, of an entire dissolution of all connection with a woman who has violated all her conjugal duties.(y) The arguments however, as to the hardships suffered by the husband from a refusal of a sentence of separation under such circumstances, are unavailing, being an inconvenience which an indiscreet husband brings upon himself, and which the law imposes upon him. It is also to be remembered that the wife will equally suffer inconvenience by a sentence passed against her, and by being turned loose upon the world.(z)

Solicitation of Chastity.]—It seems to be doubtful whether the mere solicitation of chastity on the part of the husband would be considered as a bar to a sentence of divorce for adultery, proved to have been committed by the wife. (a) In Foster v. Foster, (b) where the husband was barred of his remedy, the court thought him in a great measure the author of his own dishonour. There was gross neglect on the part of the husband, and the solicitations were such as led strongly to the inference that adultery had been committed. The wife had been exemplary in her conduct for ten years; she was carried to Lisle, and there left by the husband. During these ten years he was using all means to seduce, almost to force the maid servants. Three denied the adultery, the fourth refused to answer. Whether that was sufficient to entitle the wife to a sentence of separation on her part was considered doubtful by the court.

The desertion of a wife by the husband though a malicious deser

(x) Proctor v. Proctor, 2 Hagg. Cons. R.

292.

(y) Proctor v. Proctor, 2 Hagg. Cons. R. 295, 296; ante, p. 377.

(z) Astley v. Astley, 1 Hagg. Eccl. R. 722. (a) Chettle v. Chettle, 3 Phill. 507. (b) Ib. 509. See 1 Hagg. Cons. R. 152. 373.