Worsley v Worsley
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1828 |
| Date | 01 January 1828 |
| Court | Ecclesiastical Court |
English Reports Citation: 162 E.R. 735
IN THE ECCLESIASTICAL COURT AT DOCTOR'S COMMON AND IN THE HIGH COURT OF DELEGATES.
In the course of the argument the Court read the following note of Wof-sley v. Worsley. Consistory, Mich. Term, 3rd Session, 1730.-Cruelty revives condoned adultery. " In this case several facts of cruelty and adultery were charged by the wife in an allegation offered by her, which were laid to have been committed some years ago; since that there had been a reconciliation between the husband and wife; and since that reconciliation he was charged in this allegation with fresh acts of cruelty, but with no new acts of adultery. " Dr. Cotterell for the husband said, that as he was charged with fresh acts of cruelty since the reconciliation, they would indeed revive the former acts of cruelty before the reconciliation, but since no adultery was pretended, the former acts of that kind did not come within the rule, therefore all the articles of the allegation relating to the adultery were irrelevant, and ought to be struck out. "The Court (Dr. Henchman) held clearly that the new acts of cruelty would revive the whole, as well the acts of adultery that were committed before the reconciliation (though there were no new acts of that kind), as also the nets of cruelty, and that the wife was now as much at liberty to charge her husband with those former acts ctf adultery, notwithstanding the reconciliation, as she [735] would have been if tbere had been no reconciliation at all." (a) After reading this case the Court said : I wish to hear a full argument on the doctrine of condonation ; its principles, and the authorities respecting it. What takes off its effects, and revives a former charge? Will any offence, short of subsequent adultery, namely, an approach to adultery, set aside condonation as a bar? Will solicitation of chastity have that effect? Must the injury be ejusdem generis ? Will cruelty revive adultery 1 If so, will any thing slort of what would substantively and separately establish a case of cruelty ? Will an unfounded charge of adultery, of which there is not a tittle of proof, against a mother with twelve living children, and an unjust dismissal of the wife from her husband's house^ be sufficient to revive condoned adultery ? Can condonation be set up aa an effectpal bar without being pleaded' [The arguments on the facts of the case have been omitted; and those only which apply to these qnestions inserted ] Lushington and Dodson for Mr. Durant. We do not find that the questions put by the Court tare received judicial consideration. 1. Whether condonation is necessary to be pleaded ? ò It is not absolutely necessary, but it may be convenient and proper; because otherwise, as the party applying for a divorce [736] should have a knowledge of the defence, we admit the party would be at liberty to plead after publication, or the Court ex officio might order further proofs. Elwes-v. Elwes(\ Hagg. Con. Reports, 292). That condonation ought to be pleaded may perhaps rather be inferred from Oughtoa.(ft) But this is on the general ground that tihere should be notice of the intended defence; but that reason does not hold here, because the wife herself pleads condonation-"qui ponit fatetur." Neither Ayliffe nor Sanchez lay down that it is necessary to plead condonation. If on cross- examination it appeared clearly that there had been subsequent cohabitation, the Court would allow the other party, at any period of the cause, to deny condonation. 2. Condonation is where a husband or wife, cognisant of the adultery of the other, ia voluntarily reconciled. AyliftVs Parergon, 226. In that case the party is barred from complaint. Mere residence in the house without actual conjugal cohabitation is no condonation. " Si enim," says Sanchez, " essent in eadern domo non se alloquentes, divisique a naens& et lecto, non censeretur condonatum adulterium."(c) But here there ia no doubt of conjugal cohabitation. 3. A repetition of the same injury, no doubt, revives condoned adultery; and we (a) See some further information on the case of Worsley v. Worsley, post, p. 762. (b} "Si pars rea allegaverit et probaverit partem agentem, ante litem institutam, habuisse notitiam saltern, probabilem criminis libellati," &c. Oughton, tit. 214, s. 2. (c) Sanchez, De Matrimonio, lib. 10, disp 14, s. 17. 736 DURANT V. DURANT 1HAGG1CC.737 admit that something short of it may possibly have that effect; as, for instance, solicitation of chastity, [737] or whatever indeed would bar a husband from complaining of his wife's adultery: but it must be an offence ejusdem generis : and if that be so, the proof here is of adultery or of nothing. The only reported case in which the doctrine of revival was discussed is D'Aguilar v. D'Aguilar (1 Hagg. Con. Reports, 135, notis). It is there laid down that, to revive cruelty, the subsequent facts must be such as would be sufficient to found a sentence. It may be said that a harsh course of treatment ought to revive, but if any thing short of legal cruelty is admitted, there would be no certain rule. By analogy this rule should apply to adultery : then nothing short of adultery would revive; certainly nothing less than solicitation of chastity. 4. It is impossible, we submit, to maintain that cruelty would revive adultery. We cannot find any case to that effect, except the note of Wmsley v. Wmdey, which is very unsatisfactory as a precedent; nor are we aware that it is so laid down in any authorities. It is not necessary to revive the adultery, for cruelty would of itself be a ground for divorce : it is not ejusdem generis. It is laid down that " condonation is a conditional forgiveness which does not take away the right of complaint in case of a continuation of adultery." (b) Even Sanchez does not suggest that condoned adultery could be revived by any thing short of adultery If cruelty would not revive it, a fortiori, harshness, or less than legal cruelty, would not suffice. [738] 5. Would an unfounded charge of adultery revive 1 It is true that adultery on the part of the wife is not pleaded, and that Mr. Durant did charge her with that crime. Though he might be misinformed, yet he acted bona fide, for he employed a solicitor, collected evidence, and laid it before a friend. A case might easily be supposed in which there were good grounds of suspicion, and for requiring explanation, such as loose conduct, and indecent expressions; and yet not sufficient to offer a plea. W. Adams and Jenner for Mrs. Durant. [After going fully through the facts of the case.] The adultery, both prior and subsequent to the renewed cohabitation, is fully proved, and the condonation of the previous adultery is not established, inasmuch as Mrs. Durant is not shewn to be cognisant of the birth of Bradbury's third child. The books require a notitia probabilis, meaning by that phrase pretty full proof, as the three instances in Oughton shew.(a) These instances all refer to condonation by the husband, which has always been held to be more easily presumed than condonation by the wife. We proceed then to examine the questions proposed by the Court, though we dis-[739]-claim the necessity, as we deny any condonation. The cases as to condonation are few, and the books not specific. 1. As to its nature. It is a conditional forgiveness: it may be made by a wife, but does not necessarily result from a continuance of cohabitation only. 2. Condonation is hardly possible to be presumed against a wife without being pleaded, as it is capable of many explanations. It is said the wife has pleaded it herself: we deny it; she has only pleaded facts from which it has been argued that condonation is to be inferred It is admitted the husband could not rest on it if brought out by interrogatories alone; here the knowledge of Bradbury's third child is attempted to be shewn only by interrogatories. If the wife had had notice that condonation would have been objected, she might have pleaded her ignorance. It is said that in Elwes v. Elwes, condonation by the husband was not pleaded; but the Court tlere lays down that it must be admitted with extreme caution if not pleaded. In that case too the alleged condonation was on the part of the husband ; and the Court does not notice it as a plea in bar but as a circumstance requiring explanation. If then, with the dictum " Causa nunquam concluditur contra Judicem," the Court is so cautious of noticing unpleaded condonation, surely it cannot be competent for (b) Ferrers v. Ferrets, 1 Hag. Con. Reports, 130. (ft) " Probabilis scientia dicitur, si maritus, suspectam habens uxorem de adulterio, earn de eodem accusaverit, et ilia hujusmodi crimen confessa fuent. Vel testes illi, quos maritus in judicio contradictorio ad probandum adulterium objectum produxit, significaverint manto, ante litem institutara, se posse deponere ex propriis eorum visu et scientia de hujusmodi adulterio. Vel si maritus uxorera suam in ipso actu adulterine depreheuderit." Oughton, tit. 214, s. 3. IHAQQ. ECO. 740. DURANT V. DURANT 737 the adverse party to take advantage of it. In Beeby v. Beeby(a)1 condonation ia further observed upon by Lord [740] Stowell in the same guarded language . " The Court would not say that condonation might not eome out in evidence, though un-pleaded, but the Court would not help it out." In Ruding v. Ruding (a)9 it was said : " The Court has never gone the length of holding mere delay as a bar against the wife. If it could be shewn that the wife's conduct amounted to licence, it would be matter of defence; but it must be pleaded." A plea in bar cannot then be treated as a matter of defence if not pleaded, though the Court may notice it. Oughton speaks of condonation as necessary to be pleaded and proved : " Si allegaverit et pro-baverit;" this is conjunctive and not disjunctive: the proof will not do without [741] the plea any 'more than the plea without the proof Sanchez and...
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Eldred against Eldred
...there was no averment of the wife's innocence. Jenner on the same side There has been a long chain of cases, from Worsley v. Worsley (1 Hagg Ecc 734), in 1730, in which cruelty has been allowed to be pleaded in defence, though not in bar. Judgment-Sir Herbet t Jennei. There can be no doubt ......