Scottish Court of Session Decisions

At advising on 23rd February 1934,—

LORD ANDERSON .—This is an action of divorce on the ground of adultery brought at the instance of the husband. Two acts of adultery are alleged. One, which is said to have been committed in July 1926, is admitted by the defender, but in reference to this act a plea of lenocinium has been sustained by the Lord Ordinary. The pursuer does not challenge this part of the Lord Ordinary's judgment. The second act of adultery is said to have taken place in the Market Hotel, Kilmarnock, on or about 13th July 1931. The Lord Ordinary has held this act of adultery proved, and has further decided that the pursuer is not barred by lenocinium from obtaining decree of divorce. Against this judgment the defender has reclaimed. This reclaiming note thus raises a question of fact and one of law. The question of fact is whether it has been proved that the defender committed adultery in the Market Hotel, Kilmarnock, in July 1931. The Lord Ordinary considered this question with much care and anxiety, and reached the conclusion that adultery had been proved. Even if I had some doubt as to the soundness of that conclusion I should not venture to differ, in view of what has been laid down in the House of Lords as to the weight to be given to the judgment of a judge of first instance, where this depends, in great measure, on views as to credibility. I refer, in particular, to what was said in the cases of Kinloch v. Young and Kilpatrick v. Dunlop . But I am satisfied that the Lord Ordinary's decision on the issue of fact is sound. [His Lordship then briefly stated his reasons for agreeing with the Lord Ordinary, and continued]—

The question of law is novel and interesting. It relates to the defence of lenocinium, which was urged by the defender on the assumption that the alleged adultery in July 1931 (denied by her) had been proved. The question is whether connivance by the pursuer, discoverable in the language of two letters written by him in 1926, can be successfully pleaded as a defence to an act of adultery committed more than five years later. We had an excellent debate on the point, in the course of which all possible views were canvassed.

Two extreme contentions were urged on behalf of the defender. It was maintained that, as the pursuer, by his connivance, had induced the defender to commit the first act of adultery, he was thereafter permanently barred from founding on any subsequent act of adultery as a ground of divorce. It was said that considerations of public policy enjoined this result. I am unable to accept this extreme contention, which would confer on the defender a licence to commit adultery ad libitum without imperilling her matrimonial status or incurring the ordinary consistorial penalties. This would seem to be more subversive of public policy than the suggested penalisation of the husband.

The same permanent effect of the original act of connivance was expressed in another way when it was urged that there was a presumption that it contributed causally to every act of adultery thereafter taking place. This contention is manifestly extravagant. It may be, and it was so held in the earlier case between these parties, that, if an act of adultery follows closely in time on the connivance, there is a presumption that the connivance is a contributing cause of the adultery. Indeed, the presumption may be held to be so strong that it receives effect even where (as in the earlier case) the defender depones that the connivance did not influence her conduct. But where the connivance has become stale, as by the lapse of a number of years, it appears to me that the presumption is correspondingly weakened and may altogether disappear. If the defender had admitted the act libelled in July 1931, and had also deponed that she had not been influenced by the connivance of April 1926, the defence of lenocinium, in my judgment, must have been repelled. It was suggested that the pursuer could have obviated any presumption attaching to the connivance if he had disavowed it. No doubt such disavowal might have strengthened the pursuer's position, but I am not prepared to hold that it is necessary for his success that such disavowal should have been made.

The pursuer's counsel also urged an extreme contention. He maintained that efflux of time, per se, precluded the defender from maintaining the defence of lenocinium. I am unable to agree. This Court has no power to declare a prescriptive period in a case like the present. Whether connivance remains influential at the end of one, two, or three years would seem to depend on the dispositions of the parties and the inducements suggested. Mere lapse of time does not therefore appear to afford a complete answer to the plea.

The true solution of the point now raised is, in my judgment, to be found in the views expressed by Lord President Dunedin in the case of Thomson v. Thomson . After quoting with approval a passage from Lord Fraser's Husband and Wife ((2nd ed.) vol. ii., p. 1186), and one from Sanchez, the Lord President says:

"Now it seems to me that two things are clear. The one is that no Judge will do well by trying to frame a definition of what amounts to lenocinium, because each case really depends on its own facts, and it would be impossible to frame a definition which comprehended all cases. The other is, that there must be something on the husband's part of an active character. ' Cooperari et positive concurrere,' says Sanchez, and I think that is an accurate description of our law."

What is suggested is that the connivance and the act of adultery founded on must be connected as cause and effect. It must be proved that the connivance contributed, to some extent, to bring about the act of adultery.

After a hiatus of five years, it seems to me there is no room for presumption or necessary inference as there is when there is close connexion in time. There must therefore be proof aliunde of causal connexion, the onus probandi being on the defender. No such proof was forthcoming in the present case. This was inevitable, in view of the defence of denial of the act. The essential proof would have been the deposition of the defender, and this involved admission of the act libelled. If the defender had given this admission, and had deponed that she was actuated by the connivance of April 1926, it would have been for the Court to decide whether or not that evidence could be accepted and was sufficient to establish a causal connexion between the connivance and the act of adultery libelled. In the absence of such evidence there is no proof that the stale connivance contributed causally to the commission of the act founded on. The Lord Ordinary was therefore, in my judgment, well warranted in saying in his opinion:

"If I am right in my conclusions in fact as to the Kilmarnock incident, there is, in my opinion, nothing in the evidence to show that the pursuer in any way contributed to that lapse from virtue, or that it had anything to do with the defender's previous adultery with White. I cannot regard the letters of 1926 as constituting a standing invitation to the defender to commit adultery for an unlimited number of years; and I do not think that it is a reasonable inference from the letters alone, or taken in combination with the separation of the parties, that this particular act of adultery committed by the wife five years after their date was influenced to any extent by their terms."

The defence of lenocinium accordingly fails.

On the whole matter I am for adhering to the interlocutor of the Lord Ordinary, and I therefore move your Lordships to refuse the reclaiming note.

LORD HUNTER (read by the Lord Justice-Clerk).—I agree with the Lord Ordinary, and for the reasons stated by him, in thinking that the pursuer has established the charge of adultery by the defender alleged to have been committed in 1931.

The defender, while denying the act of adultery of 1931 which the Lord Ordinary found proved, maintains in argument that the pursuer is in any event not entitled to the remedy of divorce, as it ought to be held that her lapse from virtue, if held proved, is attributable to his own conduct. In other words, it is argued for the defender that the pursuer is obnoxious to the plea of lenocinium, which disentitles one spouse to found upon the guilt of adultery of the other.

In considering this plea the following circumstances may be noted. The parties were married in 1920. The marriage was not a happy one. A separation took place within a year of the marriage. After a temporary reconciliation the parties separated in August 1923, and married life has not been resumed. In 1926 the pursuer brought an action of divorce against the defender on the ground of adultery. This she denied, but the Lord Ordinary held the adultery proved. He, however, held, in view of the terms of a letter written by the pursuer to the defender in 1926 and produced by the defender, that the pursuer must be held to have connived at the adultery complained of, and was therefore disentitled to the remedy sought. The Lord Ordinary's view was approved by this Division of the Court, and a reclaiming note by the pursuer was refused. I refer to the opinions there expressed as embodying our views as to the nature of the plea. Certain facts emerged in the proof which was led in this case which were not present to our minds when dealing with the plea. It appears that, within a month of the proof in 1927, the defender had given birth to an illegitimate child, and had made false entries in registering the birth, which occurred in Ireland. The child died in December 1927, and again the defender made false entries in the register with reference to the child's parentage. It is not suggested that, if the full facts relative to the birth of the defender's child had been known to the Court, any different conclusion would have been reached than that at which we arrived. The terms of the letter were of an extremely reprehensible character, and indicated a desire on the pursuer's part that the defender should afford him evidence on which he might found in obtaining a divorce. The letter amounted to an invitation to commit adultery. There were also, according to the defender's testimony, which on this point was accepted by the Lord Ordinary, similar invitations both verbally and in writing.

There is no evidence in the present case that, after the refusal by the Court to grant divorce in 1927, the pursuer renewed his requests to the defender that she should commit further acts of adultery. It is not unnatural to assume that, after the warning he had received as to the Court's disapproval of his conduct, he refrained from acts that might be construed as connivance on his part. The question, therefore, comes to be whether it must be held that the pursuer, being barred in 1927 from obtaining divorce on account of adultery committed in 1926, is still barred in 1933 from obtaining a divorce because of an act of adultery committed in 1931. I know of no case in Scots law, and none was cited to us, which would support such a view. I agree with the view expressed by Lord Fraser in Husband and Wife ((2nd ed.) vol. ii., p. 1191), and referred to with approval by the Lord Ordinary, that it is against good sense and right feeling that one act of connivance is a perpetual licence to a wife to go on sinning all her lifetime.

In order to establish a case of lenocinium, I think there must be a reasonable connexion between the act or acts of adultery complained of and the conduct of the spouse which is alleged to have conduced thereto. In my opinion there is an absence of evidence which would justify us in holding that the pursuer's conduct in 1926 was responsible for the defender's adultery in 1931. No doubt the defender, who, in 1927, said that the pursuer's invitation to commit adultery did not in any way influence her conduct, now says it was the real and only cause of her downfall, and, in answer to a question put by the Court, says that she regarded herself as having a licence from the pursuer to commit adultery as often as she pleased. On the evidence as it now appears, I think it doubtful if she required any encouragement. At all events, I agree with the Lord Ordinary in thinking that it would be against public policy to hold that the defender is entitled to found upon the licence which she claims.

It was suggested that, if a husband has once connived at an act of adultery by his wife, he ought to be barred from suing for a divorce in all time coming, unless he could found upon a positive act of disavowal of his previous conduct. I have difficulty in figuring what would amount to such an act. He is not bound to live with his wife as a condition of his obtaining a divorce on the ground of adultery. A letter written by the pursuer in the present action saying that he withdrew the licence which he had previously given would at best have been insincere and hypocritical. The decision of the Court in 1927 certiorated the defender, as well as the pursuer, that adultery was not justified, and she ought to have known that renewed acts of adultery, entirely dissociated in time from the previous acts, would or might afford her husband ground for obtaining a divorce. I think the reclaiming note should be refused.

LORD MURRAY.—This is an action of divorce at the instance of a husband on the ground of his wife's adultery. Two acts of adultery (with a man or men unknown) are alleged, one in July 1926, and another in or about July 1931.

The present pursuer had, in 1926, instituted an action of divorce against his wife, alleging an act of adultery in April 1926 with a man named White. The wife denied the adultery. The Lord Ordinary held the act of adultery proved, but, in respect of a certain letter, dated January 1926, hereinafter referred to, the Court proprio motuheld that the pursuer had been guilty of connivance, and was thus barred from obtaining divorce. This judgment was affirmed by this Division of the Court.

In the present action the defender admits the act of adultery in July 1926 which is libelled, and as the result of which she gave birth in 1927 to an illegitimate child. She, however, as regards this act of adultery, pleads connivance on the pursuer's part in bar of action. This plea is founded on two letters written by the pursuer to the defender, dated respectively in January and April 1926. It is not disputed that these letters amount to a direct invitation to the defender to commit adultery in order that the pursuer might thereby obtain a divorce. The Lord Ordinary has sustained this plea in bar quoad the act of adultery in July 1926, and his judgment on this part of the case is not challenged.

As regards the alleged act of adultery in or about July 1931, this is denied by the defender. There is, accordingly, no specific plea of connivance in regard to this charge, but it is not disputed that, if this alleged act of adultery is held to be proved, the question of connivance is competently brought before the Court for decision. The Lord Ordinary has held the act of adultery proved, but has declined to hold the pursuer barred.

I am of the opinion that the judgment of the Lord Ordinary ought to be affirmed. On the question whether, on the evidence, the act of adultery in 1931 should be held to be proved, I have nothing to add to the opinions already expressed by your Lordships; but I may state my opinion on the remaining question which was argued, namely, whether the letters of 1926 still form an effective bar to the pursuer's obtaining the decree of divorce which he seeks. I am of opinion that they do not bar the action.

An interesting argument was addressed to us on the question as to what legal effect, if any, was to be given to the fact that some five years had elapsed between the act of adultery now charged and the invitation contained in the letters of 1926. The argument for the defender on this point was advanced in an alternative form. It was argued, in the first place, that, if a husband has been guilty of lenocinium and has been the cause (or a contributing cause) of a wife's original lapse from virtue, he is, according to our law, permanently disabled from obtaining divorce from his wife on the ground of adultery. This suggestion does obtain some support from the passage in Hume's Commentaries referred to during the debate (I. 457), and the point was raised but not decided in the old case of Mackenzie. Baron Hume is, however, in the passage cited, only dealing with the effect of lenociniumas affecting the right of a particeps criminis to institute criminal proceedings as a private prosecutor. However this may be as regards our old criminal procedure, I am not aware of any case in our consistorial law in which this extreme view has been countenanced. I need not refer to the authorities cited in the Lord Ordinary's opinion, which are adverse to the contention put forward as against public policy. The argument, in any event, is too broadly stated, for, as Lord Bankton points out (I. v. 130), the offender may repent and the parties may become reconciled. But the argument thus broadly stated is, I think, contrary to the legal principle on which the plea of connivance rests; for it is quite settled that the essential fact on which any such plea in bar is based is that the husband's invitation and the wife's act should be proved to be related to each other as cause and effect. I can find no warrant for holding that there is in our law a presumptio juris et de jure to this effect, which is applicable irrespective of circumstances, and which is incapable of being rebutted by contrary evidence.

We were referred at the debate to the English case of Gifford as supporting this view. I do not myself think there is any substantial distinction between English law and our own law in regard to pleas in bar of action, and, in particular, bar founded on connivance, unless indeed it may be in respect of some difference between "active co-operation" and "passive acquiescence." But, in view of Lord President Dunedin's judgment in Thomson's case, this distinction becomes a fairly narrow one. The English law appears to accept the same test as our own law, that, in order to bar action, there must be a proved relation of cause and effect between the husband's conduct and the wife's guilt. The law is thus laid down in the leading English cases of Synge and Hodgson, in which most of the older cases are reviewed by the Presidents of the Divorce Court:

"If one party is guilty of conduct which causes or conduces to the misconduct of the other, that party cannot be allowed to allege that misconduct or to obtain relief for it."

In the case of Gifford, a husband suing for divorce had, in effect, sold his wife to a co-respondent for a sum of money, and, this being proved in course of the divorce proceedings, he was held barred by collusion. He raised a second action of divorce on the ground that his wife had continued to live in adultery with the same man, and was again held by Lord Merrivale to be barred by connivance. The judgment appears to me not open to challenge, but it is no authority, in my opinion, for the extreme proposition for which it is now cited.

It may well be, on the other hand, that the circumstances of a given case raise a presumption that the husband's invitation and the act of adultery complained of are related as cause (or contributing cause) and effect—thus, for example, where the act libelled follows closely in point of time upon the husband's direct invitation to his wife so to act. The former case between the present parties already referred to is a good illustration of such a case. But this is merely a presumptio facti, and may of course be displaced by contrary evidence.

In my opinion the question whether the connivance and the act complained of are so related must depend on the evidence in any particular case. I am not prepared to hold that in this case any such relation is proved or is to be presumed. The period of time which elapses between the invitation and the act is, I think, a relevant, and may be a material, factor in determining this issue. Cases may be figured and may be illustrated in our law in which the lapse of a considerable period may not break this causal relationship—thus, for instance, where a husband turns a wife out into the world penniless, and invites her to maintain herself by a life of prostitution. The case of Marshall may be referred to in illustration. But no such case can arise where, as here, a husband has been throughout the period of separation alimenting his wife, albeit it may be under pressure of legal proceedings. On the other hand, the elapse of a relatively short period may suffice to break the causal connexion, at least if coupled with other significant circumstances. In the case of Donald, where some six years had elapsed, Lord Ormidale expressed the view that the efflux of time prima faciesevered any such causal relationship, while Lord Deas thought that the plea might be effective though "some years" elapsed. In the case of Hunter, where an interval of two years elapsed but a husband had throughout maintained his wife, Lord President Inglis (at p. 366) expressed the opinion that, after this lapse of time (coupled no doubt with other circumstances), an invitation given by the husband in 1880 could not have been the "cause of or incentive to adultery in 1882," for "the supposed cause and effect are separated by a long lapse of time."

Conversely, in the previous case between the present parties already mentioned all the judges of this Division of the Court laid stress on the short period of time which had elapsed as most material to the question of the causal relationship between invitation by the husband and action by the wife. These decisions, in my opinion, fully support the view that lapse of time is not only a relevant but may be a determining factor in deciding a plea of bar based on connivance.

In the present case, however, there is, I think, a further significant circumstance present which has a most material bearing on the matter under discussion, and which is, in my opinion, sufficient to dispose of the alternative argument advanced by the defender. I refer to the fact of the previous action between the parties and its result. This alternative argument was based on the theory that the pursuer's invitation was in effect a general and permanent "mandate or licence" to the wife on which she was entitled to act until it was recalled or disavowed by the pursuer. This view, however, ignores the important fact that the "mandate or licence" originally granted was, as both parties fully understood, not general but limited to a specific purpose, namely, the obtaining of a divorce. Whether the parties were or were not aware at the time that connivance by the husband, if established in the course of the proceedings, would be an effective bar to success, both parties were fully certiorated of this as the result of the case in 1928. The whole purpose for which the "mandate" was granted thus failed. Its force and effect were spent. Thereafter the defender was not, in my opinion, entitled to act upon it as if it were still operative, or to rely upon it as a defence against the consequences of a further matrimonial offence. I am therefore of opinion that, in the circumstances of this case, the plea in bar of action falls to be repelled.

LORD JUSTICE-CLERK (Aitchison).—[After holding that adultery in July 1931 was proved]—The second question in the case is one of very great difficulty. It is whether the pursuer is to be held as having connived at the adultery of his wife so as to disentitle him to the remedy of divorce. The defender does not plead lenocinium or connivance in relation to the adultery in Kilmarnock—her attitude is a denial that any such adultery took place—and the difficulty of concluding connivance against the husband is thereby increased, for no aid is to be derived from the wife's testimony so far as this specific guilt is concerned. But it is pars judicis to consider the plea, especially in a case in which the husband is already convicted of having connived at his wife's adultery.

In considering in the present case whether the pursuer is barred by connivance one starts with the indisputable fact that he did connive at the adultery of the defender in 1926. In January of that year he wrote to the defender in these terms:

"To Annie. enclosed you will find aliment. What about doing something so as we can be clear of one another. I'm fed up with this life. I no longer love you so it is up to you to do something. Hughie."

This is a direct invitation to commit adultery addressed by the husband to the wife. They were not words spoken in rixa, they were written words, they were deliberate, and it is proved that they were repeated on more than one occasion. Another letter similar in its import is found by the Lord Ordinary to have been written by the pursuer, although the pursuer denies that he wrote it, and the defender depones to verbal exhortations of the same character made to her by the pursuer from time to time. I cannot doubt that these letters were intended to be acted on, and that they were sent by the pursuer to the defender in the hope that they would be acted on, and that the pursuer would thereby be furnished with cause for the dissolution of the marriage. The pursuer's anxiety was to be free, and the dishonour of his wife was to be the means to effect his purpose.

If the adultery committed in Kilmarnock had been de recentiupon the receipt of these letters by the defender, a denial of lenocinium would have been unmaintainable. The inference that the adultery was referable to the invitation to commit it would be natural and inevitable. The whole difficulty in the present case arises from the lapse of time. Can it be affirmed after an interval of five years that the delinquency of the husband can fairly be regarded as the conducive cause of the wife's misconduct? Now, I think it is quite impossible to draw a line at any definite period of time, and to say that an adultery on one side of the line is to be referred to the invitation or connivance of the husband, and an adultery on the other side of the line is to be regarded as independent of it. The question in each case must obviously depend on its own circumstances, and these may vary indefinitely. But there is one general rule which the authorities, I think, establish, and that is that the adultery said to be connived at must be definitely related to the conduct relied on to constitute the connivance. The connivance must be active. As was pointed out by Lord Dunedin in the case of Thomson, a mere acquiescence is insufficient unless it is acquiescence in such circumstances as to give it an active character; or, as it was put by Dr Lushington in the case of Harris:

"… No man has a right to ask relief from a Court of Justice for an injury which he was chiefly instrumental in effecting himself."

Lenocinium is a plea in bar, and the principle underlying the plea is that the husband (or the wife, as the case may be) cannot complain of an injury which has been wrought or conduced to by his own conduct. Intention is essential to connivance. "It must be intentional concurrence in order to amount to a bar"—per Sir John Nicholl in Rogers.

On the other hand, it seems to be equally clear that it need not be connivance to the particular act in order to support the plea. As was said by Lord Justice-Clerk Inglis in the case of Wemyss, "When a husband is accessory to the crime of adultery by his wife, or is participant in the crime or the direct occasion of her lapse from virtue, he will be obnoxious to the plea of lenocinium." And there may be what Lord Fraser (Husband and Wife (2nd ed.), vol. ii., p. 1188) termed 'corrupt facility' on the part of the husband, which is equal in legal effect to intentional connivance. Although the doctrine in Scotland is different as regards its origin from that in England (where it is expressed as an application of the maxim volenti non fit injuria), the doctrines, as Lord President Dunedin pointed out in the case of Thomson, come very near one another in practical application—"the distinction comes to be nearly a question of words."

Applying the law to the facts of the present case, the question comes to be whether the pursuer was instrumental in himself effecting the injury of which he now complains. Was his conduct such as to induce in the mind of the defender a belief that he was indifferent to her chastity, and that she might commit adultery with his consent? And if that belief was induced in her mind, did it actuate her conduct and so conduce to her guilt? I am forced to give an affirmative answer to these questions. The defender is far from being a credible witness, and her denial that she committed adultery has been rejected. But that she was influenced by her husband's invitations to infidelity I cannot doubt. The letters were written to her with a corrupt intention. They have not been disavowed. The pursuer, although aware that his conduct had resulted in the defender's lapse from virtue—for so it has been affirmed—has not sought in any way to make amends. He has separated himself from his wife's company and has deprived her of his protection. He has not addressed to her, so far as appears, a single word of help or counsel, or made any attempt at reconciliation. He has expressed no regret at having conduced to her dishonour. I am unable to discover that he has discharged a single one of the duties which a husband owes to a wife except to aliment her, and that he has done under the compulsitor of a decree of Court. I do not find in the case any facts to warrant the inference that the connivance is spent. On the contrary, I think the proper inference to be drawn from the conduct of the pursuer is that he laid the train for the corruption of his wife, and that her later irregularities, equally with her earlier ones, are to be attributed to his inducement and his unretracted consent.

It is not immaterial that neither in this case nor in the former proceedings is there any suggestion of looseness or lightness of conduct or lapse from virtue on the part of the defender until she had been invited and instigated by the pursuer to abandon her chastity. In the light of all these facts I think the proper and logical inference to draw is that the defender's adultery was conduced to by the connivance of the pursuer. I think, therefore, that the plea of lenociniumshould be affirmed, and the pursuer refused the relief which the law allows to an injured spouse. In my view he ought not to be heard to complain of the invasion of his marital rights.

I have reached this conclusion upon a view of what is the proper inference to be drawn in fact from the whole circumstances of the case. But the conclusion appears to be aided and substantially enforced by a passage in Hume. Baron Hume in his Commentaries on the Law of Scotland respecting Crimes, (3rd ed.) vol. i., p. 457, after pointing out that a prosecution for adultery may equally be brought at the instance of the injured spouse, if so disposed, or of the Lord Advocate, says this:

"It seems, however, and so Mackenzie has said, to be a just and natural exception to the husband's title, if he has himself been privy and aiding to the dishonour of his spouse; as by making gain of her person, or contriving the occasions of meeting, or even conniving at her gallantries. If this be true, with regard to the very facts that are charged in the libel, then is the husband art and part of those adulteries; and he cannot prosecute his own associate, who is far less criminal than he. And though it be only true of her other and previous amours, yet still the law cannot well admit such a one to prosecute as for an injury which he could not avoid, and to the end of inflicting punishment on the very person, whose morals and affections were under his own peculiar guardianship, which he has so shamefully betrayed. The case of Elizabeth Moor, which Mackenzie alludes to, is truly no precedent on the other side; and this not only for the reason given by Mackenzie, but because the woman's allegation does not seem to have been pointed and specific, of her husband's privity to her other adulteries, but only to promises and solicitations which tended to her dishonour."

Hume in this passage is no doubt dealing with adultery as a crime, as it was at one time in the law of Scotland. But the significance of the passage lies in the fact that the title of the private prosecutor was derived from the injury which he suffered. In the case where the husband was a party to the wife's adultery as set forth in the libel, he obviously could not prosecute for a crime in which he was particeps criminis, but his title to prosecute was also denied where he had connived at earlier adulteries on the part of the wife which were not included in the libel. Although this doctrine was the doctrine of the criminal law, I am not at all certain that the principle underlying it may not equally be applicable to the civil law. The principle may truly be that the husband who has once conduced to the wife's unchastity is barred from seeking relief in a Court of Justice unless he can dissociate his wife's guilt completely and effectually from his former connivance. This view appears to me to have support in the law of England—see Rogers and Gifford.

In the case of Lovering Lord Stowell, in dismissing a suit at the instance of the husband, used words that appear to me to be very apposite to this case. He said:

"Can a man, consenting to adultery with A, but not consenting to adultery with B, take advantage of that adultery, and say to the Ecclesiastical Court, ' non omnibus dormio'? This is language not to be endured. The Ecclesiastical Court requires two things—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. I think, in this case, the husband is not entitled to relief, having consented to the turpitude of his wife."

I prefer, however, in this case not to base my judgment upon this doctrine, which may be of doubtful application, but rather upon the inference in fact that the husband's attitude of indifference towards his wife, his incitement of her to commit adultery, and his unretracted assent to her guilt were the direct and continuing occasion of her lapse from virtue. I think the appeal should be allowed, and must respectfully dissent from the judgment proposed.