Opinion
05-27-1886
EWING v. EWING.
A. Engelbrecht, for petitioner. R. B. Seymour, for defendant.
A. Engelbrecht, for petitioner.
R. B. Seymour, for defendant.
WILLIAMS, Advisory Master. At the close of the trial it was my impression that the act of adultery charged as committed on the night of the second of July, and to which the principal testimony was directed, was not proved, and that the petition was not sustained. On the argument, counsel presented the petitioner's case with much ability, and I desired to make a thorough examination of the evidence. It was then determined, for satisfactory reasons, to delay the determination of the cause for a time. In the interval I reviewed the testimony with care. Since then, and after a longer delay than is ordinarily advisable, but which in this case I have thought was not inexpedient, I have re-examined the evidence with the view of treating it again, so far as possible, as if now first presented. My conclusion is that the act charged is not satisfactory proved at either of the times alleged in the petition; and, in justice to the defendant, I am perhaps called on to say, further, that upon the evidence I do not believe that the act charged was committed at either of those times, and there is not sufficient ground in this case to infer its commission at any other time and place. The latter view was urged on the argument, but cannot be adopted. It would be purely a supposition without evidence. Certainly, on a charge of adultery, the evidence need not always be closely limited to the time and place alleged in the petition, nor need the evidence be direct and positive. But, without going here into detail, which would require the collation and repetition of a great part of the testimony, the result is that, in my opinion, the circumstances are not such as to lead the guarded discretion of a reasonable and just man to the conviction that the act charged was committed. It will not do to base a decree in such a case upon suspicion or possibility, nor upon appearances equally capable of two interpretations. The disposition is not satisfactorily proved on the part of either of the persons charged, nor are they satisfactorily shown to have been together under circumstances which, on a careful and cautious consideration, satisfy the mind that the act was committed. The petition, in my view of the case, must be dismissed, with costs.
In regard to the allowance of counsel fees to defendant's counsel, it appears that he received 850 by order of the vice-chancellor at the commencement of the suit, and $150 under my order after the argument, leaving the final adjustment until decree. I think the whole allowancefor the services of defendant's counsel, in view of the preparation of the defense, and of the actual trial and argument, which occupied 14 sessions, eight of which were entire days, should be $300, leaving a balance of $100 now to be paid.