character.(p) But the evidence in such a case ought to come from very credible witnesses. (q) The husband has been held to be debarred of his remedy by the proof of a single act of adultery.(r) But some doubt may perhaps be entertained whether the husband ought to suffer for one frail act in a case where the wife had left him and lived in a long course of adultery.(s) Where the wife's adultery was proved, but the evidence of a similar charge against the husband failed, it was held that his right to a divorce was not barred by a slight want of caution on his part in introducing his wife to a female of loose character, the wife's guilt not appearing to have been occasioned by such introduction.(t)

In a suit for a separation a mensa et thoro by reason of the wife's adultery, she having in a plea of recrimination compensatio criminum proved a long series of misconduct, (adultery, solicitations of chastity, and venereal disease communicated to her,) for which she separated from him long prior to the adultery committed by her, is entitled to her dismissal, nor will a return to live in the same house, after former separation on account of the husband's adultery, operate as a condonation so as to extinguish her right to set up his guilt as a bar to his prayer.(u)

The husband, under circumstances of great extenuation, will not be barred from obtaining a divorce by reason of adultery by his wife, although he had some time previously been guilty of adultery, which was condoned by the wife. Thus suppose the case of the husband committing an act of adultery ten or twelve years before his wife's misconduct, under circumstances which would render it comparatively venial; that she had overlooked it, had lived with him, and had children by him; if she were guilty of adultery herself, it seems that

the husband would be entitled to a divorce. Dr. Lush- [ *443 ]

ington granted the husband a divorce who had com

mitted adultery in 1831, and, so far as appeared from all the evidence he had never otherwise been guilty of a violation of the marriage vow; and it was a case of adultery committed with a single person.(v)

Husband's Adultery after Wife's infidelity, a Bar.]-According to the canon law, the obligations of marriage may be suspended, but cannot be extinguished; the parties may be released in certain cases from personal cohabitation, but the relation of husband and wife still continues. These characters were absolutely indelible. By that law, the doctrine of an absolute indissolubility of marriage was carried so far, that the vinculum remained perfectly unaffected by the adultery of either party, or by a private separation consequent thereon, and adultery after such separation was as much an infraction of the vinculum as if committed at any other time. It acknowledges no intermediate state between cohabitation and a formal separation; when divorce was withheld it was presumed that the parties returned to

(p) Forster v. Forster, 1 Hagg. Cons. R. 152; Lord and Lady Leicester's case, cited ib.; 1 Hagg. Ecel. R. 721.

(g) 2 Lee, 384.

(r) Astley v. Astley, 1 Hagg. Eccl. R.

722.

(8) Naylor v. Naylor, cited 1 Hagg. Eccl. R. 722.

(t) Harris v. Harris, 1 Hagg. Eccl. R. 511. (u) Beeby v. Beeby, 1 Hagg. Eccl. R. 789. (v) Anichini v. Anichini, Cons. Court, 22d Feb. 1839.

the husband's future amendment, on his again committing adultery the previous injury revives.(k) In a suit for divorce, on account of the husband's adultery after a condonation of former adulteries, there must be, in order to establish condonation of subsequent adultery as a bar to the wife's remedy, evidence that she was aware of this renewed misconduct; nor can such knowledge be inferred from slight facts and from cohabitation, but it must be clearly and distinctly proved.(/) Condonation being merely retrospective, if the offence forgiven is afterwards renewed, the party has a right to revert to former facts, if brought in conjunction with later.(m) Circumstances may take off the effect of condonation which would not support an original cause. Acts of cruelty revive adultery, though they would not support an original suit for it.(n)

In order to found a legal condonation as a bar to separation for adultery, there must be complete knowledge of all the adulterous connection, and a condonation subsequent to it.(o)

A lunatic, on recovering possession of his senses, may condone adultery committed during his lunacy.(p)

The wife having committed adultery on the first of three successive nights, and the husband aware and having full knowledge of this, sleeping with her on the second, condones *thereby the [ *447 ] previous adultery, and cannot take advantage of further adultery on the third night.(q)

Difference between Condonation on the part of the Husband and Wife.]-Condonation may be express or implied; as by the husband cohabiting with a delinquent wife for it is to be presumed he would not take her to his bed again unless he had forgiven her; but the effect of cohabitation is justly held less stringent on the wife; she is more sub potestate, more inops consilii; she may entertain more hopes of the recovery and reform of her husband; her honour is less injured and is more easily healed. It would be hard if condonation by implication was held a strict bar against the wife. It is not improper she should for a time show a patient forbearance; she may find a difficulty either in quitting his house or withdrawing from his bed. The husband, on the other hand, cannot be compelled to the bed of his wife; a woman may submit to necessity. It is too hard to term submission mere hypocrisy. It may be a weakness pardonable in many circumstances.(r) To avoid condonation the 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; but it is not invariably expected that he should plead the period when the charge first came to his knowledge; it may be prudent and expedient to do so, but it is not absolutely necessary: something must be allowed to convenience.(s) Condonation with

(k) 1 Hagg. Eccl. R. 745.

(1) Durant v. Durant, 1 Hagg. Eccl. R. 733, Suppl.

(m) Ferrers v. Ferrers, 1 Hagg. Eccl. R.

781.

(n) D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. 782. See ante, pp. 435, 436.

(0) Durant v. Durant, 1 Hagg. Eccl. R. 733; Turton v. Turton, 3 Hagg. Eccl. R.

351; Bramwell v. Bramwell, 3 Hagg. Eccl. R. 629.

(p) Parnell v. Parnell, 2 Phill. R. 160. (9) Timmings v. Timmings, 3 Hagg. Eccl. R. 83.

(r) Beeby v. Beeby, 1 Hagg. Eccl. R. 793, 794. See Ferrers v. Ferrers, ibid. 781*, n. (6) 2 Hagg. Cons. R. 279, 313.

respect to women is held not to bear so strictly; but a woman would not be justified in living in the same house with her husband's concubine, sharing the turpitude of his crime and partaking of a polluted bed; although forbearance on her part will not bar her remedy where there is a reasonable hope of the husband's return to her society. Conjugal cohabitation, after an act of adultery avowed by the husband to the wife, may be condonation; but it does not follow that because she overlooked an offence which she could not prevent, that *is to be construed to give an universal license to unlimited

debauchery.(t)

[ *448 ] It is not necessary for the wife to withdraw from cohabitation on the first or second instance of the husband's misconduct. It is legal and meritorious to be patient as long as possible. Forbearance does not weaken her title to relief; for it is not improper she should for a time entertain hopes of her husband's reform, especially where there is a large family.(u) Condonation is not presumed as a bar so readily against the wife as the husband.(x)

Presumption from Cohabitation.]-The general presumption is, that a husband and wife living in the same house live on terms of matrimonial cohabitation; but particular circumstances may repel that presumption.(y) Where the husband's conduct has been very gross, and the parties have separate beds, there must, in order to found condonation on the wife's part, be something of matrimonial intercourse presumed; it does not rest merely on the wife's not withdrawing herself, for the court does not hold condonation so strongly against the wife, from whom it looks for long suffering and patience not expected nor tolerated in the husband.(z) Condonation therefore will not so soon bar a wife as a husband of the remedy of divorce. (a) The wife's unwilling acquiescence in a return to live in the same house, but without connubial cohabitation, does not amount to a complete forgiveness. (b) The mode in which, after a separation, a return to cohabitation was effected is material, to show whether there was or was not condonation. On the execution of articles of separation, not followed by matrimonial intercourse, the wife's reluctant assent to the husband having a bed-room in her house at the earnest entreaty of him and of mutual friends, and on his declaring "that he should be merely under the roof by sufferance," is no continuation of a former condonation.(c)

[ *449 ] Pleading Condonation.]-Condonation being a plea in bar, ought in strictness to be pleaded, that there may be an opportunity afforded of contradicting it, because it is not incumbent upon the complaining party to prove that there was no condonation. (d) At the same time the court is not precluded from noticing it, to this extent at least, that

(t) Kirkwall v. Kirkwall, 2 Hagg. Cons. R. 279; D'Aguilar v. D'Aguilar, 1 Hagg.

Eccl. R. 786.

(u) Durant v. Durant, 1 Hagg. Eccl. R. 768. 752; Beeby v. Beeby, ibid. 793; post, pp. 453, 454.

(*) Durant v. Durant, 1 Hagg. Eccl. R. 752, Suppl. See 1 Hagg. Cons. R. 278.

(y) Beeby v. Beeby, 1 Hagg. Eccl. R. 796. (*) Dance v. Dance, 1 Hagg. Eccl. R. 794.

(a) Walker v. Walker, 2 Phil. R. 156.

(b) D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. 782".

(c) Westmeath v. Westmeath, 2 Hagg. Eccl. R. App. 118.

(d) Elwes v. Elwes, 1 Hagg. Cons. R. 292; Williams v. Williams, Hagg. Eccl. R. 84; Durant v. Durant, 1 Hagg. Eccl. R. 733. 751.

if the fact appeared clearly and distinctly upon the depositions that there had been cohabitation subsequent to the knowledge and detection of the guilt, it might ex officio call upon the husband to disprove it.(e) Condonation not pleaded can only avail as a bar so far as it is fully established by evidence.(f) But it seems, that unless condonation be admitted by the adverse case, that it must be pleaded to estop the party.(g)

3. OF CONNIVANCE.

Connivance and collusion destroy all claim to remedy by way of divorce, and is founded on the obvious principle, that no man has a right to ask for relief from a court of justice for an injury which he was chiefly instrumental in effecting himself. Volenti non fit injuria.(h) Condonation and connivance are essentially different in their nature, though either may have the same legal consequence. Condonation may take place, without imputing either in the case of a wife or of a husband the slightest degree of blame, especially in the case of a wife, whose conduct might be more meritorious from her forgiveness of injury. But connivance necessarily involves criminality on the part of the individual who connives, and therefore the evidence to establish it should be more grave and conclusive.(i)

*Collusion may exist without connivance, but conniv[ *450 ] ance is generally collusion for a particular purpose.(j) The law requires that there should be no co-operation between the parties as to the commission of an act of adultery, and will not grant a remedy where the adultery is committed with the view of afterwards obtaining a separation.(k)

In several cases the wife has been dismissed on that ground, although the adultery was fully proved, where the corrupt connivance of the husband was fully established.(1)

The law imposes upon the husband the obligation of cautiously protecting and guarding his wife from all associations that might expose her purity to hazard; or, by lowering her standard of female virtue, prepare the way for the inroads of the seducer. The court maintains the necessity on the part of the husband of jealously watching over the society, conduct and habits of his wife, in order to prevent irreparable injury to the great bonds of domestic happiness and peace.(m)

This principle is very clearly established; but what degree of neglect, however culpable, short of an actual and voluntary exposure of the wife to the seduction of an adulterer, would be sufficient, in order to bar a suit for divorce by reason of adultery, is no where laid down, at least with that distinctness and precision, which would fur

(e) Elwes v. Elwes, 1 Hagg. Cons. R. 292. (f) Beeby v. Beeby, 1 Hagg. Eccl. R. 795. (g) Durant v. Durant, 1 Hagg. Eccl. R. 751, Suppl.

(h) Forster v. Forster, 1 Hagg. Cons. R. 144; Harris v. Harris, 2 Hagg. Eccl. R. 415; Rogers v. Rogers, 3 Hagg. Eccl. R. 58; Reeves v. Reeves, 2 Phill. R. 125.

(i) Turton v. Turton, 3 Hagg. Eccl. R. 350.

(j) See ante, p. 415.

(k) Crewe v. Crewe, 3 Hagg. Eccl. R. 130. (1) Timmings v. Timmings, 3 Hagg. Eccl. R. 76; Lovering v. Lovering, Ib. 85. (m) 2 Hagg. Eccl. R. 414.

nish a safe guide for the court to act upon. Although no case of this kind may have been the subject of judicial decision, it can be conceived that a case might arise of such wilful neglect, or rather exposure, as might, without proving actual connivance, possibly bar the husband of all remedy by a divorce. A husband might introduce his wife to society so abandoned, and expose her to risks so great, as to render a deviation from the paths of chastity the most probable, if not the necessary, consequence. Under such circumstances perhaps the court would not wait for proof of actual connivance on the part of the husband, but would hold him to the consequences of his own conduct, *when the adulterous connection arose from the society and temptations to which he had introduced his wife.(n)

[ *451 ]

Husband's Conduct must be free from Imputation.]-The ecclesiastical court requires that a man shall come with pure hands himself, and shall have exacted a due purity on the part of his wife; and if he has relaxed with one man, he has no right to complain of another. Therefore, where the wife made no defence to a suit for divorce by reason of her adultery, the court dismissed the suit on the ground that the husband having connived at the wife's adultery with A., could not complain of an act of adultery nearly contemporary with B.(0)

Great facility in condonation of adultery with A., taking no notice of adultery with B., (of which the husband could not be ignorant,) conduct amounting to an invitation to adultery with C., not merely giving free scope to the wife's licentiousness, in order to obtain conclusive evidence of guilt, and matrimonial cohabitation, after being in possession of full legal proof of such adultery, are criminal connivance and collusion, which will bar the husband of legal relief on account of his wife's adultery, although fully proved.(p) However culpable the wife may be, yet if the husband has been negligent and suffered her to form a connection and live on terms of cohabitation with another man, the court will not grant a separation. The adultery of the wife being proved, but she having, without her husband, resided in a gentleman's house, (of which she was treated as the mistress, and where she was delivered of three children,) without the husband sufficiently accounting for his absence, or providing for her, or interfering with such residence, the court dismissed her, on the ground that the husband by such conduct had consented to the conection and adultery.(q)

Mere imprudence and error of judgment are not connivance; and in determining whether the husband's behaviour has barred him from relief on proof of his wife's adultery, the *honesty of his intentions, not the wisdom of his conduct, is to be con[ *452 ] sidered.(r)

A husband is not barred by a mere permission of opportunity for

(n) Harris v. Harris, 2 Hagg. Eccl. R. 415.

(0) Lovering v. Lovering, 3 Hagg. Eccl. R. 85.

(p) Timmings v. Timmings, 3 Hagg. Ecl. AUGUST, 1841.-W

R. 76.

(q) Michelson v. Michelson, 3 Hagg. Eccl.

R. 147.

(r) Hoar v. Hoar, 3 Hagg. Eccl. R. 137.