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was guilty of adultery, but not of incestuous adultery. The Court held that this subsequent adultery restored to the wife her right to have the marriage dissolved on the ground of the previous incestuous adultery. Condoned incestuous adultery is revived by subsequent adultery not incestuous.
This was a petition by Elizabeth Newsome for a dissolution of her marriage with Peter Newsome, on the ground of his incestuous adultery with her sister. The petition alleged that the incestuous adultery was committed in February and March, 1868; that in July, 1868, the petitioner became aware of it, and separated from the respondent; and in 1869, since the separation, the respondent had on divers occasions committed adultery with other women. The respondent by his answer denied the adultery charged, and pleaded condonation.
The case came on for hearing before the Judge ordinary without a jury on the 5th of April, 1871.
It was proved that the parties were married in February, 1862, and afterwards cohabited at Huddersfield, where the respondent, in partnership with the father and brother of the petitioner, carried on the business of provision merchants. In February and March, 1868, the respondent was guilty of incestuous adultery with the petitioner's sister. This came to her knowledge in July, 1868, and they separated. The respondent went to America for a short time, and a correspondence, apparently in affectionate terms, was kept up between him and the petitioner. After a short absence he returned to Huddersfield, and negotiations were then entered into between him and the 307] petitioner with regard to a dissolution *of partnership, which was very much desired by her father and the rest of her family. The respondent did not wish to retire from the partnership, but ultimately consented to do so in consideration of the sum of 10001., and of an agreement which was drawn up by him, and signed by him, and by the petitioner, and one of her brothers, on the same day, the 25th of November, 1868, as the agreement for the dissolution of partnership. The agreement was for a time kept secret from every one but the three persons who signed it. It was contained in two sides of a folded sheet of foolscap paper, and was in the following terms :
I, Elizabeth Newsome, promise you, Peter Newsome, in presence of John Ward, forgiveness for all your past offences and irregularities whatsoever, and for which act of forgiveness you give up to me your interest and place in the business conducted at No. 9, Kirkgate, Leeds, or elsewhere, under the style or
firm of Ward & Co. My brother John here present knowing I cannot hold a legal place in the firm in consequence of my being a married woman, solemnly promises you on honor that for five years ending December 31st, 1873, 25 per cent. of the profits shall accrue to me just as heretofore they accrued to you, as specified in the deed of partnership at present existing between Richard Ward, John Ward, and yourself. It is to be understood my father, Richard Ward, only agrees to me receiving the 25 per cent. above named for two years, and 15 per cent. afterwards, so long as I remain in the business ; but my brother, John Ward, having regard to my past services, at your request, solemnly promises to secure to me the full interest above named if it lay in his power. I also, on my part, solemnly promise not to sue for a divorce from you, or legal separation of any kind, so long as you do not interfere with me or my property according to my moral right by virtue of this contract. For all the above-named advantages, and every other advantage not here named but understood amongst us, the said Richard Ward, Elizabeth Newsome, John Ward, and Peter Newsome, you relinquish your present position as a member of the firm of Ward & Co., as above named, for ever, and sign a deed legally dissolving such partnership as the forms of legal procedure dictate. I and my brother, John Ward, appreciate the sacrifice you make in relinquishing your hold upon a business you have done so much to establish, and would not ask this sacrifice had not you committed yourself so far as to make no other peaceable arrangement feasible. It is agreed that no announcement of the dissolution of partnership be made in the local newspapers, saving such as they may voluntarily copy from the official London Gazette in the ordinary manner.
(Elizabeth Newsome. Agreed to.
This was the end of the first side of the paper. The second side was as follows:
Note.— The agreement, or contract, on page No. 1 of this sheet binds me only so long as you remain true to me in love and duty, and leave me sole mistress of *my own affairs and actions in all respects as if I was still unmarried (308 to you (saving, of course, that I do not marry again), all moneys belonging to me now in my own right, or coming to me in future from whatever source, shall be at my own absolute disposal; our child, Kate Helen, shall be under my control, and should you interfere against my wish with myself, my child, my money, or anything belonging to me, according to the spirit and wording of this arrangement, I am absolved from all herein solemnly sworn to. I, at your request, agree not to consult John Thackrah, solicitor, nor any other solicitor, neither will I entertain
any advice or counsel respecting a divorce or other legal separation from you, but reject all approach of such advice or counsel as detrimental to the intention of this contract from whomsoever offered. It is agreed that all reproaches for past errors and mistakes be buried, and we covenant between us to refuse on any account to debate them. It is agreed that you do not permanently reside in Leeds or suburbs, nor enter into any business there against my wish, but that you go to work in some distant place, and exert your utmost endeavour to better , your circumstances in life, and by a course of correct and consistent conduct and honorable regard to your position as my husband retrieve the position you have lost. The letters you wrote under distressed or violent feelings I solemnly swear
never to use against you in any emergency. I promise I will employ my time for the future so far as I am inclined or able similarly to your desire in 1865, 1866, 1867 and 1868, viz., devote it to the business at No. 9, Kirkgate. As agreed upon then, so now will I continue to refrain from household work during the six days, and on Sundays take complete rest, just as if I belonged to the male sex, barring, of course, occasions of necessity. I do agree to permit you to visit me, say not more than once a week, reserving to myself the power to make the visit private or otherwise, and to limit it to thirty minutes if I am so disposed. I give you the hope of regaining me as an incentive to good and useful effort, but should I not be satisfied with your future conduct, this hope.gives you no claim.
The petitioner and respondent met secretly from time to time in pursuance of the agreement, and a good deal of contradictory evidence was produced as to what occurred at these meetings, the respondent asserting and the petitioner denying that conjugal intercourse had taken place between them. The last meeting was on the 19th of April, 1869, and after that date the petitioner refused to see the respondent again, and on the 30th of May, 1870, this petition was presented. It was proved, and not denied, that in June, 1869, the respondent had been guilty of adultery with a woman at Huddersfield.
Hawkins, Q.C., and Searle, for the petitioner. There was no condonation, for even if there were conjugal intercourse (and it is submitted that the evidence disproves it), that does not 309] necessarily *amount to condonation : Keats v. Keats and Montezuma (). But, even assuming condonation, the offence condoned was revived by the subsequent adultery, although that subsequent adultery was not incestuous: Dent v. Dent. (*)
Inderwick, for the respondent. The conduct of the petitioner amounted to condonation, for she was bound by the agreement, and had no right to break it in April, 1869, by refusing to meet the respondent, as she had met him up to that time. The subsequent adultery, not being incestuous, did not revive the petitioner's right to complain of the incestuous adultery which she had condoned.
May 9. THE JUDGE ORDINARY. The question in this case (') 1 Sw. & Tr. 334; 28 L. J. (P.M. & (*) 4 Sw. & Tr., 105; 34 L. J. (P.M. & A.), 57.
was argued by counsel as one of condonation, but in the view I am disposed to take, the question is not whether the petitioner condoned, but whether, after by a written agreement she has bargained away her right to come to this court, this Court will permit her to throw aside that agreement and avail herself of the remedy to which she would, but for this agreement, be entitled. His lordship referred to Rowley v. Rowley (1); Hooper y. Hooper (); Buckmaster v. Buckmaster. (3)
April 30. Searle (Hawkins, Q.C., with him), for the petitioner. The Court will, no doubt, enforce a bargain that a wife will not, in consideration of some advantage given by her husband, take proceedings in this court for a matrimonial offence which, without such bargain, would entitle her to relief. But the Court must look at the circumstances of each case, and especially the terms of the bargain. The petitioner in this case signed her name to the agreement, which was drawn up by the respondent himself—and is in his writing-in order to spare her father the annoyance of continuing in partnership with the respondent, and the agreement should not be considered strictly against her. The two agreements must be read as one document; they were signed at the same time, and were evidently intended to form one agreement. The second part of the agreement contains an express stipulation that the first part *shall not be binding on the petitioner if the respondent does [310 not remain true to her. It is not, as in Rowley v. Rowley (), an absolute release. The subsequent adultery of the respondent was a clear breach of the condition, and entitled the petitioner to institute this suit as if no agreement had been entered into.
Inderwick. The petitioner having obtained the advantage for which she bargained, namely, the dissolution of partnership, was bound by the agreement. But it was the petitioner, and not the respondent, who broke the agreement, for she refused in April, 1869, to continue the meetings for which he had stipulated. Up to that time he had performed all his obligations; and the agreement having been first broken by her, she
(1) Law Rep. 1 H. L., Sc., 63.
1 Sw. & Tr., 602; 3 Sw. & Tr., 251 ;
30 L. J.(P. M. & A.), 49.
Law Rep. 1 P. & M., 713.
is not entitled to rely upon his subsequent breach of it as restoring to her the right of instituting this suit.
Cur. adv. vult.
June 6. THE JUDGE ORDINARY. This is a case with regard to which I entertained some serious doubts. The incestuous adultery of the respondent was proved, and not denied. The contest between the parties turned on the issue of condonation, and considerable evidence was produced on the question whether what had taken place after the separation did or did not amount to condonation. The petitioner discovered the respondent's incestuous adultery some time in the summer or autumn of 1868. The respondent was at that time in partnership with her father, and she and her family were very anxious that he should be made to leave that partnership. The respondent left England for a time and went to America, and on his return negotiations were entered into, and the result was a written agreement, signed both by the petitioner and the respondent. By the terms of that agreement she was to forgive her husband for what had occurred, and to take no proceedings against him in the Divorce Court, but a condition was attached to this promise that he should remain faithful and true to her. There was also a provision that, although they were not to live together, she was to allow him to see her at certain stated times. During the latter part of 1868 and the beginning of 1869 the respondent did see the petitioner under this clause of the agreement on many oc311) casions. These visits always occurred at *some place where the petitioner was not known, and the respondent was, under the agreement, keeping away from the town where she and her family resided. The visits were continued during some months. A correspondence was put in which showed very plainly that the respondent was constantly desiring to see more of the petitioner, and that she was desiring to see less of him. In April, 1869, the arrangement came to an end in consequence of the petitioner refusing to continue to meet the respondent. Some angry letters passed, and eventually this suit was instituted.
It seemed to me that, under these circumstances, the question of condonation did not arise at all. Condonation in its ordinary acceptation is a forgiveness by the wife implied from her restoring her husband to the original position which he occu