Now although Dr. Dillon pleads that he did not believe the information that his wife had slept on the night of the 29th of December with a strange man at the Inn, at Gadshill, he acts as if he did credit it, and he continues to cohabit with her on the very night of the day on which he receives the information. Now I have always understood the legal principle to be this, that when a husband has received information respecting his wife's guilt, and can place such reliance on the truth of it as to act on it, although he is not bound to remove his wife out of his house, he ought to cease marital cohabitation with her. Having recapitulated the leading features of the case I now come to the present plea, the defensive allegation given in by Mrs. Dillon. It has been said in argument, that this allegation is merely brought in for the sake of delay, and for creating additional expense to Dr. Dillon, that if the defence is genuine the libel cannot be proved. I am not at liberty to look at the case in this view, according to the first principles of justice, a party charged with a particular offence has a right specifically to counterplead the acts charged against him. It may be that the party may be unable to adduce the requisite evidence to support a counterplea, but I see no impossibility at present of doing so; I recollect a case perfectly well, where a lady was accused of adultery, the circumstances were stated with great minuteness, she was even charged with having given birth to a child, the fruit of that adultery, all the facts pleaded were apparently fully proved, but the evidence failed on the point of 1841. July 22nd. DILLON against DILLON. 1841. July 22nd. DILLON against DILLON. identity;—indeed the diversity was clearly established. This disposes of the first five Articles of the allegation, I now come to the sixth, which pleads that on the 9th of May, 1841, after the circumstances stated in the eighth Article of the libel, were known to Dr. Dillon, and he had taken measures founded on them, he passed the night in the same bed with his wife. This, it is said, is pleading condonation, which proceeds on an avowal of adultery, and is inconsistent with a denial of adultery, but according to the rules of pleading in this class of cases, I apprehend you may plead double-you may first deny the adultery in toto, and you may further plead that if the adultery shall be proved to have been committed, it has been condoned. I now come to the eighth Article, when I first read this Article of the allegation, I found that it contained matter of serious difficulty, I have searched for cases in order if possible to discover whether acts of cruelty, coupled with such declarations as are pleaded in this Article, had ever been admitted or rejected, and if the latter, what were the reasons why they had been rejected. [The Court read the Article.] The argument adduced in order to sustain the Article, is, that it may prove two things; first, that Dr. Dillon places little reliance on the information he had received; secondly, that he was ready to listen to any charges against his wife, with a disposition to give them credence. Now, on referring to the cases, I find it laid down in several of them, that cruelty cannot be pleaded in bar to adultery. I myself so held in Harris v. Harris (a), and on referring to my own note of the judgment, I find that I relied upon the doctrine of Lord Stowell, in Chambers v. Chambers (b), where he expressly lays it down as the general doctrine, "That a wife cannot plead cruelty as a bar to divorce for her violation of the marriage bed;" the reason he assigns for this is, that compensation can only arise where both parties are in eodem delicto, and that in the cases of cruelty and adultery, the delictum is not of the same kind. I candidly say, I entertain doubts whether the reason given is the most satisfactory that conld be adduced, because, if this effect arises out of the difference in the nature of the two offences, it follows, è converso, that where the wife has brought a suit on account of cruelty, the husband cannot plead her adultery in bar, a proposition which I am not aware has ever been laid down in these Courts. Perhaps the more correct, because the more satisfactory reason may be, that if the husband has been guilty of cruelty before the wife is charged with having committed adultery, she might have had redress by proceeding for a separation before the time when the adultery was committed. No cruelty can, as Lord Stowell has said, justify the violation of the marriage bed. Moreover, a wife might after committing adultery, endeavour to provoke her husband to cruelty, in order to raise a defence to any suit that might be brought against her. I have stated my reasons in support of the doctrine, to shew that I am not disposed, even if I was at liberty 1841. July 22nd. against DILLON. 1841. to do so, to depart from the doctrine as laid down July 22nd. by my predecessor; with regard then to this case, all that I have to consider is, whether the doctrine just laid down is applicable to the circumstances of it, which are very peculiar. DILLON against DILLON. Now the way to consider the question is, to try what will be the legal effect of the cruelty, if proved; the Counsel for Mrs. Dillon has disclaimed any suggestion that it could bar the sentence for divorce, if the adultery shall be proved; then the only effect of it will be to throw some degree of suspicion on the husband's case, as to whether he actually believed the charge made against his wife. If adultery is charged against a wife, if counter adultery cannot be proved, nothing can bar a sentence for separation but connivance on the part of the husband, cruelty will not be a bar neither will malicious desertion, although such conduct may have a tendency to cause the wife to commit adultery, it is clearly established that it is no defence to the husband's suit, although I have some doubt as to the propriety of the doctrine on this point, I have felt myself compelled to act on it, indeed, I did act on it in a recent case of Morgan v. Morgan (a). Is the doctrine thus established affected by pleading that the cruelty was committed with the ulterior design of getting rid of the wife by driving her to the commission of adultery, is it connivance? I think it is not. There may by possibility be cases where cruelty on the part of the husband may directly lead up to the wife's adultery; I say nothing upon such a case. (a) 2 Curt. 686. 1841. DILLON against DILLON. I must reject that part of the Article which pleads the acts of cruelty; with regard to the other part, July 22nd. which pleads the declaration of the husband as to a desire to get rid of his wife, I think it is admissible, it may tend to shew, whether the husband actually believed the truth of the charge of adultery; it may be very necessary to sift the conduct of the husband on this part of the case. It is somewhat extraordinary that Dr. Dillon should have taken the conduct of the case into his . own hands, and that after the commencement of the suit he should have sought and had an interview with one of the persons who in all probability will be a material witness in the suit. be The other Articles plead interviews and amicable intercourse between Dr. and Mrs. Dillon, subsequent to the commencement of these proceedings, these facts are clearly admissible; if they shall be proved, it may very doubtful how far Dr. Dillon will be entitled to relief in this Court, for it will be inconsistent with a belief in the adultery of his wife, that, although not cohabiting with her, he should have these interviews. The allegation must be reformed in the particulars specified. The allegation was afterwards admitted as reformed, and witnesses having been examined in support of it, the cause came on for hearing, and was argued by Addams for the husband. Haggard, contrà. |