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adultery, nor is it every degree of inattention on his part which will deprive him of relief; but it is one thing to permit, and another to invite; he is perfectly at liberty to let the licentiousness of his wife take its full scope; but to contrive the meeting and to invite the adulterer, in order io obtain conclusive evidence of guilt, is legal prostitution.(s)
Husband may be barred by Acquiescence.)-Passive connivance is as much a bar as active conspiracy, but there must be an intention that guilt should ensue, and such intention may be inferred from allowing improper familiarity.(t) It is not necessary that any active steps should be taken on the part of the husband to corrupt the wise to induce and encourage her to commit the criminal act. Passive acquiescence will be sufficient to bar the husband, provided it appears to be done with the intention and in the expectation that she would commit the crime; but on the other hand, it has always been held that there must be consent. The injury must be volenti ; it must be something more than mere negligence; than mere inattention ; than over-confidence; than dulness of apprehension; than mere indifference; it must be intentional concurrence, in order to amount to a bar.(u) Lord Stowell admitted the following position to be the true doctrine, “ that passive consent is sufficient ; but there must be a consent or acquiescence of his will, not mere negligence; not too high a confidence, or a misplaced confidence; there must be evidence that he was passively concurrent; that he saw the train laid for the corruption of his wife ; that he saw it with pleasure, and gave a degree of passive concurrence to it.”(v)
Connivance of a passive and permissive kind is to be proved by a train of conduct and circumstances.(w) [ *453 ]
The first general and simple rule is, if a man sees
what a *reasonable man could not see without alarm; if he sees what a reasonable man could not permit, he must be supposed to see and mean the consequences; but ihis is not to be 100 rigorously applied without making allowance for defective capacity; dulness of perception, or the like, which exclude intention, is not connivance; there must be intention. The presumption of law is against connivance; and if the facts can be accounted for without supposition of intention, the court will incline to that construction. Undoubtedly there have been some persons who have conspired against the virtue of their wives to gain a separation, and (experience has proved) have even connived without such an object; but either of them is contrary to the usual conduct and disposition of mankind, and the court will presume according to the general rules of conduct. However, to bar the husband, there must be intention on his part, but mere passive connivance is as much a bar as active conspiracy.(2]
Forbearunce in Instituting Proceedings.]-Connivance may be inferred from forbearance in instituting proceedings. A husband is
(8) Timmings v. Timmings, 3 Hagg. (0) Walker v. Walker, 3 Hagg. Eocl. R. Eccl.-R. 81.
59. (0) Moorsom v. Moorsom, 3 Hagg. Eccl. (r) 3 Hagg. Eccl. R. 106. R. 9.1, 107.
(x) Moorsom v. Moorsom, 3 Hagg. Eccl. (u) Rogers v. Rogers, 3 Hagg. Eccl. R. R. 106, 107.
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 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 may 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. A wife 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; but when there is nothing to show that the wife's suspicion must of necessity have been excited, or that the adultery might not have taken place without her knowledge, forbearance on the part of the wise under a reasonable hope of his return to her society, will not constitute a bar to her legal remedy when every hope of that kind shall be extinct.(y)
*Where a husband has suspicions and some intimations of his wife's infidelity sufficient to convince his own mind, [ *454 ] but not to instruct a legal case, the husband will not be debarred of his remedy because he continued to cohabit until his suspicions were confirmed by legal evidence.(y)
The husband is not bound to apply upon suspicion, he must wait for adequate proof, but he must be vigilant, for if he waits longer than is required for obtaining proof, he is barred of his remedy afterwards ; if it be proved that there has been a long course of criminal conduct of which he was cognizant, or which by law and by presumption he must be supposed to have been cognizant, he cannot receive relief.
A constant intercourse continued for four years between a wife and her paramour, not clandestine, but the common subject of conversation among servants and friends, raises a grave suspicion of the husband's knowledge and acquiescence.(z)
A husband, if the matter is not divulged, may, from tenderness to his family and himself, or to his wife, be induced not to complain to a court of justice, upon strong reasons to believe the repentance of his wife. But a facility of condonation of adultery on the part of the husband leads to the inference that he does not duly estimate the injury, and will induce the court to look with jealousy on his subsequent conduct.(a)
Plea of Connivance.]—In a suit for separation by reason of the · wife's adultery, connivance on the part of the husband may be pleaded by the wife consistently with a denial of her guilt;(b) for such a plea does not necessarily admit adultery.(c) Active conspiracy appears in acts, but unless ihere are declarations to establish it, connivance must in general depend on circumstances, and it is to be gained from a train of conduct which the court is to interpret as well as it can. A plea of connivance must for the most part in its own nature be
(y) Kirkwall v. Kirkwall, 2 Hagg. Cons. R. 277; ante, pp. 416, 417. 436, 437.
(y) Elwes v. Elwes, 1 Hagg. Cons. R. 292.
(7) Crewe v. Crewe, 4 Hagg. Eccl. R. 132.
(a) Timmings v. Timmings, 3 Hagg. Eccl. R. 78.
(6) Moorsom v. Moorsom, 3 Hagg. Eccl. R. 87; Gilpin v. Gilpin, ib. 150.
(c) Rogers V. Rogers, 3 Hagg. Eccl. R. 58.
circumstantial and consist of many facts, trifling perhaps when taken [ *455 ]
separately, but altogether making a case *calculated to
affect the judgment of the court.(f) Mere indifference, ill-behaviour, or cruelty, is not pleadable in answer to a charge of adultery, nor relevant to a plea of connivance.(g) The court compels parties to bring the whole of their substantive case before it at once if possible, which is not always the case; for the knowledge of facts, or the proof by which facts are to be supported, may not always be in the power of the party, and then additional articles may be given in; but it must clearly appear to the court that they could not have been given in before; for a contrary practice would be extremely oppressive, especially where one party pays all the expenses on both sides. Therefore where much delay had occurred in the wife's defence, a plea of minute facts to establish connivance having been admitted, and the cause then standing “ to propound all facts,” an allegation of the wife, not responsive, but pleading more minutely, but to the same effect, as in a former plea, was altogether rejected, the facts not being noviter perventa.(h) Though the court will not on presumption, and in the absence of matter strongly inculpatory, impute to the husband the guilt of connivance, it will not debar him from pleading circumstances which make the history natural and consistent; for the party ought not to be forced ultimately to depend for an explanation of his conduct on the ingenuity of counsel or the discrimination of the court.(ə) Where connivance is not pleaded, the court or the husband's counsel may take the objection of the wife's connivance, where it clearly appears on the face of the evidence adduced by the wife herself; but it is questionable whether it is competent to the husband to set up such a defence by interrogatory only, without giving the adverse party a full opportunity io answer: at all events to support such a defence so set up, the conduct and evidence to prove it must be most unequivocal and incapable of explanation.(k) 'To support a plea of connivance where [ *456 ]
no adultery during cohabitation is *charged or admitted,
the clearest evidence of intention and consent would be required. It seems doubtful whether connivance at adultery during cohabitation would be a bar in point of law against a suit for adultery with a different person long subsequent to separation.(!)
Evidence of Connivance.]— The evidence to establish connivance is generally circumstantial, it rarely happens that it can be proved by one or two broad facts. If the facts are equivocal, the presumption is in favour of the absence of intention; it cannot readily be presumed that any husband would act so contrary to the general feelings of mankind, as to be a consenting party to his own dishonour; the effect of which would be to leave him legally bound for life to a corrupt and adulterous wife.(m) In a suit for separation for the husband's adultery with the wife's sister, proof that the wise, after knowledge of previous
(1) Moorsom v. Moorsom, 3 Hagg. Eccl. (i) Croft v. Crost, 3 Hagg. Eccl. R. 312. R. 93. 106.
(k) Turton v. T'urlon, 3 Hagg. Eccl. R. (g) Moorsom v. Moorsom, 3 Hagg. Eccl. 352. R. 92.
(l) Rogers v. Rogers, Hagg. Eccl. R. 72. (h) Moorsom v. Moorsom, 3 Hagg. Eccl. (in) Rogers v. Rogers, 3 Hagg. Eccl. R. R. 96.
adultery, allowed, under peculiar circumstances, this sister to accompany them to India and to live in the same house with them, was held not to bar the wife on the ground of connivance, her conduct, though imprudent, not having been traced to a disregard of her own honour, nor to any motive necessarily criminal. And the court inti. . mated that even if connivance had been proved, that the wife would not have been debarred from a decree of separation in a case of incestuous adultery.(n)
It is not necessary to prove connivance to actual adultery any more than it is necessary on the other side to prove an actual and specific fact of adultery. If a system of connivance at the improper familiarity, almost amounting to proximate acts, be established, a corrupt intention as to the result will be inferred without more direct proof. The notoriously debauched character of the paramour, his exclusion from all respectable female society, the introduction of him by the husband to his wife, the encouragement of their intimacy, the allowing her to accept a supply of money from him, expostulations from her family at such intimacy, the refusal of the husband to attend to them, and improper familiarities and *liberties in his and without his remonstrance, were held mate.
[ *457 ] presence rial facts in a plea of connivance.(o) On proof, either directly or presumptively, of the wife's adultery, great inattention on the part of the husband will not bar him. To establish such a desence he must have been privy to her guilt or have led her into the crime. A court of justice, on a suspicion of the husband's inattention, cannot suppose him accessary to ihe turpitude of his wife.(p) To establish connivance, in bar to a suit on account of the wife's adultery, it is not necessary to show knowledge of, and privity to, the actual commission of such indulgence; such extreme negligence to the conduct of his wife, and such encouragement of acquaintance and familiar intimacy as are likely to lead to an adulterous intercourse, are sufficient.(9)
Affectionate conduct to a wife for many years, no appearance during that time of a wish to withdraw from her society, and the absence of any reason to suppose that the husband knew or suspected her depravity till very shortly before she left him, tend most strongly to disprove connivance at the turpitude of, or active co-operation in, the prostitution of the wife.(r)
If the injured party is once in possession of a fact of adultery, and still continues his matrimonial cohabitation, it proves connivance, collusion, and facility, which will bar the husband of relief for his wife's adultery.(8) The long duration of a criminal intercourse, and delay in applying to the court, and the indirectness and want of stringency in the evidence, are strong presumptions against a preconcerted scheme to obtain a sentence by contrivance. A judgment by default against the paramour, and no defence on the part of the wife, are not
(n) Turton v. Turton, 3 Hagg. Eccl. R. (9) Gilpin v. Gilpin, 3 Hagg. Ecc!. R. 338.
150. (0) Moorsom v. Moor som, 3 Hagg. Eccl. (T) Hoar v. Hoar, 3 Hagg. Eccl. R. 139. R. 87.
(8) Timmings v. Timmings, 3 Hagg. Eccl. (P) Rix y. Rix, 3 Hagg. Eccl. R. 74–76. R. 76. 83.
proof of collusion.(t) In Hodges v. Hodges,(u) the husband proved the wife's adulterous connection with one individual five years after [ *458 ]
separation under articles of agreement, of which *connec
tion two children were born; on suit for separation by reason of the wife's adultery with such person, the court held that the husband's knowledge of, and consent io, gross indelicacies, or even adultery, with three other persons during cohabitation before the separation, would not bar the husband.
On proof of the wife's adultery, continued for four years, under circumstances which raised a strong suspicion that the husband could not have been ignorant, the court, after much hesitation and difficulty, granted the sentence of separation, as it could not affect the husband with a direct knowledge of the adultery, and as three witnesses had positively sworn they believed the husband was ignorant.(x)
Sect. 1. What Courts have cognizance of Matrimonial Causes
2. Of the Effect of Sentences of the Ecclesiastical Courts
459 469 479 485 564 573 582 586
SECT. I.--WHAT COURTS HAVE COGNIZANCE OF MATRIMONIAL CAUSES.
Legality of Marriages how cognizable in Ecclesiastical Courts.) From very ancient times the ecclesiastical courts have possessed the sole and exclusive cognizance of questioning and deciding directly the legality of marriage, and of enforcing specifically the rights and obligations regarding the marriage state.(a). There are certain suits which can be entertained in these courts alone, such as suits for the restitution of conjugal rights—suits of nullity, instituted for the purpose of having marriages declared null and void, which are of two kinds; first, when the marriage is ipso facto void, and secondly, where the marriage is said to be voidable, as in cases of incest and impotence,-and suits for separation from bed and board by reason of adultery and cruelty. The validity of marriage is, in some cases, determined not as an original but as an incidental question in those ecclesiastical courts, which properly have no jurisdisdiction over matrimonial questions. Thus in the Prerogative Court of Canterbury, [ *460 ]
whose authority in strictness is limited to the cognizance of *testamentary suits, a question as to the validity of a
(1) Crewe v. Crewe, 3 Hagg. Eccl. R. 132, 126. 133; ante, pp. 415, 416.
(a) 4 Rep. 29; Moore, 169; Legard v. (u) 3 Hagg. Eccl. R. 118.
Johnson, 3 Ves. 352; sce 4 Reeve's Hist. (2) Crewe v. Crewe, 3 Hagg. Eccl. R., 52.