Opinion
10-18-1892
GRAHAM v. GRAHAM.
Samuel W. Beldon, for petitioner. Horatio W. Barton, for defendant.
Suit by Sylvester Graham against Lydia A. Graham for divorce. Decree for petitioner.
Samuel W. Beldon, for petitioner.
Horatio W. Barton, for defendant.
GREEN, V. C. The petitioner alleges that the defendant has been guilty of adultery, committed with Frank W. Stiles, at certain places, and at certain times, in Borden town in this state; and also with Eugene Kirby, at a certain place, and at certain times, in the city of Philadelphia. If the testimony of Mrs. Sarah F. Taylor is believed, the charge of adultery with Stiles is proved. It is with great earnestness and ability urged that this testimony is not reliable in consequence of its improbability. It is stated, as the clear result of the evidence, that the petitioner and defendant were living happily together as husband and wife; that no serious differences or difficulty had arisen between them; that to all appearances they were affectionate and devoted to one another; and that no suspicion of his wife's un-chastity had ever entered the mind of the petitioner; and counsel eloquently argues that these conditions are inconsistent with the wife's guilt, and that no woman falls from such a position at once, but that herlapse from virtue, if it ever happens, will be gradual. That the husband was unsuspicious and confiding is true; but this really proves nothing except his faith in her virtue. Acts of impropriety on the part of the wife are seldom, if ever, committed in the presence of the husband, and his ears are the last to which stories affecting his wife's honor are carried. But, even if the theory is true, the evidence does not indicate any sudden departure of the defendant from the proprieties of life. The testimony of Mrs. Taylor and of other persons in the house show that the defendant and Stiles first met as boarders at Mrs. Taylor's, and that an acquaintance, casual at first, developed into intimacy, indicated not only by their being constantly in one another's company in the husband's absence, not only in the public parlors, but by his visits to her room and her visits to his, and eventually by acts of familiarity and caresses which she should have permitted no one but her husband to enjoy. Mrs. Taylor says their intimacy was very gradual in its growth, but progressed until it readied a point to excite her apprehension to the extent that she, at last, called their attention to their conduct, and expostulated with them; and she says her fears were only allayed by their assurance that there was nothing in her suspicions, in which she was simple enough to rely. While the argument of counsel is one which ought to meet with an unhesitating approval in the mind of any just person when applied to a chaste woman, it loses force when the evidence indicates that possibly the disposition of the defendant may have been susceptible to improper approaches. The evidence shows that she did not repel the advances, either of Stiles or of others, and that she permitted him, as well as them, to embrace her, and to indulge in act's of intimacy which, to say the least, were indiscreet and improper. She did not hesitate to dress herself when Stiles was in the room, and, on one occasion, she is shown to have removed her corsets when he was there; and there is evidence of their lying together on a lounge and on the bed, and that she would go into his room in the morning before be was up, on the excuse that she did it to call him.
Independent of its bearing upon the charge of adultery committed with Kirby, the acts of the defendant at the house of Mrs. Wen rich, in Philadelphia, may also be considered in this connection, and, without referring to them now more in detail, they are that she introduced herself, one morning, into this respectable house, as the wife of Kirby, one of the male boarders, and as such wife was taken to his bedroom, was admitted by him, and remained with him alone for several hours; that such visits were repeated two or three times, and that on one occasion she remained there over night, occupying his bed, at which time, it is true, she claims he was not there. I refer to this intimacy with Kirby now, not as bearing on the charge of adultery with him, but as showing the disposition of this married woman, to be gathered from the fact that she willfully and repeatedly visited him in his bedroom,without the knowledge of her husband, or even his suspicion of their intimacy; that she obtained access to said Kirby's bedroom by representing herself as his wife, remained with him for hours, when he was presumably in bed, and was known in the house as his wife. The conversation testified to by Jenkins Taylor, as had with the defendant, would seem to be singular, if they, too, were not on terms of great intimacy; but if that is assumed, and the truth of his statement can be relied on, it goes far to prove a want of chastity in the disposition of the defendant, which is further enforced by the remark which she is proved to have made, in the presence of Mrs. Hamilton, to Mrs. Winston and her daughter. This testimony shows sensuality and immodesty, and indicates, not only that she had lost her affection for her husband, if she ever had any, but that she lacked loyalty to her marital duties, and restraint upon her passions. Phebe Quigley testifies to very gross acts of familiarity with Stiles, but the accuracy of her testimony is shaken by her stating that she noticed them, on one occasion, through a hole in a particular door, and it is clearly shown that her testimony in that regard is inaccurate. I do not think it necessary to consider the question as to whether she was mistaken with reference to the room and the door, but prefer, without going into such examination, to decide the case regardless of her testimony. It is urged that Mrs. Taylor's story is incredible because it places the parties in flagrante delicto upon the floor of the room. It is said that there was a bed in the adjoining room, and a lounge in the room in question, and that it cannot be believed that parties could commit this act upon the floor, when there were these other more convenient accommodations for the indulgence of their lust. It is true that there was a bed in the adjoining room, but it is also proved that this bed was directly opposite to the door, and that there was a hole in this door through which an unobstructed view of the bed could be had, which may account for their not using that. The lounge was in the front room, but it does not appear that the keyhole in the door of that room may not have offered a point of observation to anything which transpired on the lounge, nor does it appear whether its proximity to the window would not have advertised their actions to persons in neighboring houses, nor do we know whether the use either of the bed or of the lounge might not have attracted the notice of persons passing in the hall. But the very improbability of this act being committed upon the floor, as testified to by Mrs. Taylor, as having been seen by her under a crack of the door, goes far to prove its truth. If Mrs. Taylor was manufacturing a story out of whole cloth, she would have undoubtedly placed the parties upon the bed, and stated that her point of observation was the hole in the door; or have placed them upon the lounge, and stated her point of observation was the keyhole of that room door. No person inventing such a story would invent one that was the most improbable of three which she might have told. Her testimony was attempted to be shaken by the evidence of Mr. Wheeler, who was sent there to measure the aperture under the door through which she testified she had witnessed the act of the parties. His testimony, so far from discrediting, proved conclusively that she might have seen, through that aperture, exactly what she testified to. He proves that it was a crack three eighths of an inch wide, and long enough to have given a range of vision to take in the place indicated. A pillow was placed by Mrs. Taylor upon the floor in the place she said one was used by the parties, and he distinctly states that it was within the range of sight afforded by this opening. I see no reason to discredit Mrs. Taylor's positive evidence of the defendant's guilt.
We next have the charge of her infidelity committed with Eugene Kirby, at a house on the corner of Race and Jacobey streets, in the city of Philadelphia. Kirby was an employe of the Union Transportation Company, whose duties required hi in to work at night, commencing at half past 6 in the evening, and continuing until 7 o'clock in the morning; except that half the night from midnight of every other Saturday ho was relieved from duty. He was a man who worked at night, and slept by day. It is important, in examining this charge, to notice the clandestine character of their intimacy, so far as the husband was concerned, as well as her evident desire for her alleged paramour's company. Vice Chancellor Van Fleet, in Black v. Black, 30 N. J. Eq. 228, 229, says: "In cases of this class, where infidelity is charged against a wife, it is always important to inquire whether the evidence shows she basso far suffered herself to be alienated from her husband as to allow a criminal love or desire for another man to enter her heart. If such a passion has found a dwelling there, proof which would otherwise be scarcely sufficient to raise a passing cloud of suspicion will possess a most convincing force." Kirby formed the a quaintance of the defendant while at work for her husband, at his brickyard, in constructing driers or flumes; and that they there grew intimate appears by the testimony of Beulah Winston, who says Mrs. Graham told her that when Mr. Graham was up at the office Kirby washed the dishes for her, and they had fine times romping around when Mr. Graham was away. After Kirby was at work in Philadelphia, defendant says she met him on Eighth street, and that he then invited her and her husband to come some time and see him. She concealed from her husband the fact that she had met their former acquaintance, and his invitation, but some two weeks after Kirby had been boarding at Mrs. Wenrich's she went to that house. She rang the bell, was shown to a public room, did not ask to have him come to her there, but inquired for "her husband, Mr. Kirby." Mrs. Wenrich told her he was upstairs in bed. She did not hesitate at this, but was conducted to Kirby's room, which was on the third floor. On knocking at his door he opened it, and said with some surprise, "Are you here?"Defendant then went into the room, and the door was closed, and she remained with him there alone until dinner time. She had her dinner with the family, when she returned with him to his bedroom, and remained until half past 1. In two weeks after she again visited him in his bedroom, and remained with him for some time. In August she was there one day twice, according to her own story,— once in the morning, and returning in the evening. In the evening, after he had gone to his work, she was taken to the room of Mrs. Wenrich's son, and there introduced to him as Mrs. Kirby; and it appears by all the testimony that she was known to the persons in the house as Eugene Kirby's wife. After remaining some time with young Wenrich and his mother, she said she wished to go to bed, and did retire to Kirby's room. She claims that this was on Thursday night, and that Kirby did not return until she was up and dressed the following morning. It is of the highest importance to this defendant to prove that this was some night of the week other than Saturday, for that was the only time Kirby was at home the latter part of the night. The Wenrichs, however, are positive in the statement that this was on Saturday night; and Mrs. Wenrich claims that she heard Kirby return about midnight, and go to his room; that Inter room was immediately underneath his, and that she heard and recognized his step, although she did not see him. His tour of duty was not over, except on every other Sunday, until 7 o'clock in the morning, yet none of the family appear to have seen him come in on the morning in question. Defendant says she rose early,—about 5 o'clock,—and was dressed before Kirby returned. The next seen of the parties after she retired that night, by any of the family, was the next morning, when they both appeared at breakfast; they then went to the wharf, and took the steamer Republic, as she says, about 7 o'clock, and went to Cape May, bathed together in the surf, and returned to Philadelphia. She says that on this return trip Kirby made indecent and improper proposals to her, which she repulsed, and that on arriving in Philadelphia she left him, and went to her sister's in Camden. Mrs. Wenrich testifies that, to her best recollection, she returned to her house on Sunday night, and remained there until Monday morning, although with reference to this she is not positive. She would seem to be Corroborated in this by Warford's testimony. If the Sunday he testifies to was that on which they went to Cape May, she went with Kirby to his abode after he had made improper proposals to her. Defendant states that she informed her brother-in-law and her sister, the next morning, that she hud taken a trip to Cape May, although she did not tell them in whose company, and as to such statement they corroborate her; but she neither told her husband of her visit, nor with whom she had gone. To account for her absence from home on a Sunday in August, she says that on a Friday she did go to Atlantic. City, and remained over Sunday; that while there she was with a Mrs. Rice and a Mrs. Howard. She accounts for the non production of Mrs. Rice by stating that she is in Boston, but she does not account for her failure to produce Mrs. Howard, her other alleged companion at Atlantic City, to prove that the Sunday she was away from home she had spent at that place. Defendant says that, after her return from the Cape May trip, she received some four or five letters from Kirby, urging her to reconsider her refusal of his improper proposals, and that, on the 17th day of October, she went to his rooms to expostulate with him, and forbid him from writing to her again. Her husband's suspicions had by this time become aroused, and on this day a detective was on her track; he had familiarized himself with her personal appearance by a visit to her home in Borden town, and testifies to her movements from the ferry during that day, and that she was at the Wen rich house from 9:05 to 10:20 a.m. She says she recognized him upon the boat, and upon the car going to Mrs. Wen rich's; but she furthermore says she did not suspect that he was following her until later in the day, when she discovered that he was waiting for her outside of Dr. Costa's, where she had visited. She says that on this occasion she saw Kirby in the hallway or in the yard; but Mrs. Wen rich says that on this occasion, as on the others, on coming into the house she went directly to Kirby's room, and remained there sometime. It is sought to show that no improper intercourse took place between Kirby and herself the night she remained in his room, by the testimony of the superintendent of the transportation company which employed him. He produced the time book, and testifies from it with reference to the time for which Kirby was paid; that Kirby was credited with and paid for whole time for every night in August, 1891. This testimony goes for naught if she is to be believed, for his time to report in the evening was at half past 6, and his time to stop work 7 in the morning; but, according to her statement, he came home, had breakfast, and was at the wharf at 7, and the boat did not return from Cape May until 8 o'clock in the evening; but if she was there, as the Wen rich's swore, on Saturday night, and that particular Saturday night was one on which Kirby was allowed to remain off duty, it disproves nothing alleged against her, but only proves that he was paid for service, for a short time Sunday evening, that he did not render.
It is claimed that evidence that the defendant frequently visited Kirby in his bedroom and remained there with him is' not sufficient evidence of adultery, and Williams v. Williams, 1 Hagg. Consist. 299, is cited in support of that contention. In that case, the husband having forbidden the alleged paramour, Thomas, to come any more to his house, Thomas took lodgings, and the wife visited him there, and stayed a considerable time, and they passed there for husband and wife. Lord Stowell, distinguishing the case from that Eliot v. Eliot, says, (page 302:) "It is not proved, as assumed, that she took the name of Mrs. Thomas. Hocalled her so, and said that she was his wife, but it is not proved that she called him her husband, or that she knew that he called her his wife. He might speak of her in that name, but that will not show her knowledge of the fact. The only circumstance of clandestinity which is proved is that Thomas attended her almost to her own house, and then left her; but that the court should infer that this happened from a clandestine intention, or that it might not be by accident, is, I think, not warranted by any rules of evidence on which this court can safely proceed. The question then comes to this: Does the visit of a married woman to a single man's lodging or house, in itself, prove the act of adultery? There is no authority mentioned for such an inference but the case of Eliot v. Eliot, which is open to the distinction, arising from the character of the house in that case, which is too obvious to be overlooked. It would be almost impossible that a woman could go to such a place but for a criminal purpose; but in the case of a private house, I am yet to learn that the law has affixed the same imputation on such a fact. In the late case of Ricketts v. Taylor, in the king's bench, the visit of the wife to a single man's house, combined with other circumstances, was held sufficient. In that case the windows were shut, and there were letters which could not be otherwise explained. That case, therefore, is no authority in this inquiry, and, though the court might be induced to think that such visits were highly improper, it must recollect that more is necessary, and that the court must be convinced, in its legal judgment, that the woman has transgressed not only the bounds of delicacy, but also of duty. There is nothing stated of any improper conduct in the observations that were made upon the conduct or behavior of the parties at this lodging,—no description or the bedroom, or any such circumstance,—and, if there had been such appearances, it is scarcely possible that they should have been forgotten; but none are brought forward that can induce a presumption of any conjugal act. The whole amount of the evidence on this article is that she visited at these lodgings, not calling herself Mrs. Thomas, and not knowing that they were not his ordinary lodgings, without any other proof of clandestinity than that, on two or three occasions, he did not accompany her quite to the house of her husband." I have given this extract thus fully from Lord Stowell's opinion, to show wherein he thought that case did not contain the circumstances which led to a different result in Ricketts v. Taylor, which case is not, as far as I can ascertain, elsewhere reported. Hunt v. Hunt, Deane & S. 121, was also referred to by counsel. There it is certainly intimated that the fact that the wife was alone in the room with her alleged paramour was not, under the circumstances, sufficient proof of adultery; but Bishop says of that case, (2 Bisp. Mar. & Div. § 1360:) "The proofs against the wife seemed conclusive, and plainly the judgment that she was an adulteress would have been pronounced, and the grievous consequences would have fallen upon her, but for her ability to prove at the trial, beyond the possibility of contradiction, that even then, and after she-had cohabited with her husband eight years, she was a virgin." Whitenack v. Whitenack, 36 N. J. Eq. 174, was also cited, but the only portion of the opinion bearing on the point is as follows: "Perhaps the mere fact that these persons were together in lonely places, or that they were frequently together at night at the home of the defendant, when her husband was absent, would not of itself, standing alone, furnish evidence sufficient to justify the court in declaring that they had committed adultery." The result of the authorities cited is that the mere fact that a married woman visited a man, other than her husband, at his lodgings, without other incriminating circumstances, is not sufficient evidence to convict her of adultery. In the case in hand there are such circumstances. This bedroom of Kirby's was removed from frequent interruption,— it was on the third floor; her visits to him were clandestine so far us her husband and her family were concerned; she visited him when her absence from home was ostensibly for other purposes; and, although he had been an acquaintance at their own house, she never mentioned the fact of their renewed meetings to her husband. She passed at Wen rich's as Kirby's wife. She lias not the answer that Mrs. Williams had in 1 Hagg. Consist, supra, for she introduced herself into the house, and obtained access to his bedroom, by assuming that relation to him, and was publicly introduced to the members of the family as Mrs. Kirby. She visited him when he was presumably in bed, for be worked all night, until 7 o'clock in the morning, when he returned to his lodging house, got his breakfast, and retired; and her visits, she says, were about 10 or 11 in the morning. Her first visit was evidently not by appointment, for he was surprised when he saw her. She went to his* room, after waiting in the reception room on the first floor; not sending for him to come there or to the parlor, but sought him in his bedchamber. If she had innocently gone to his bedroom on the first occasion, she had no such excuse on the subsequent visits she made. She undressed and dressed in his room; for one night at least, if not two, occupied his bed. She admits he made indecent proposals to her on the boat. According to Warford and Mrs. Wen rich the same night she went home with him, and certainly visited him October 17th, remaining more than an hour, according to Lyman, These facts, taken in connection with what has been pointed out as to her conduct with others, particularly with Stiles, leaves no room for doubt that desire and opportunity met on the occasions of these visits to Kirby's bedchamber, with the presumable result.
It is true the defendant and Stiles deny the adultery under oath, and I think she proves her inability to produce Kirby as a witness. But this evidence, while competent, weighs but little in the face of positiveproof and overwhelming circumstances. A question of the admissibility of contradictory statements by Stiles was reserved. 1 think the weight of authority is that such statements may be admitted as contradictory of the testimony of the witness, but not as bearing on the main charge. I have, however, in the consideration of the case, given the testimony objected to no weight.
But it is claimed that the husband has condoned the offense. It is urged that the petitioner has solemnly admitted it in his petition and papers used on a motion for alimony. As originally filed, the petition did state that the petitioner and defendant had continued to reside together as man and wife up to the time of verifying the petition; but, on representation by his counsel that the words"as man and wife" were inadvertently used to mean simply that they lived in the same house together, an amendment was permitted. Defendant's counsel thereafter put the original petition in evidence to establish such admission: but while it may have probative force to the extent that petitioner had made such admission, in the light of his explanatory evidence, and that of his counsel, it cannot be of much moment; as Vice Chancellor Van Fleet says, in Warner v. Warner, 31 N. J. Eq. 225, 226: "Courts of equity do not permit truth and right to be sacrificed to preserve form, nor allow justice to be defeated, and wrong to triumph, on a mere mistake or unskillfulness in pleading." It is, however, the fact that these parties were domiciled in the same house up to Thursday, the 22d day of October,' 1891, the day the petition was verified. It is contended by the defendant's counsel that, the parties not having ceased to reside in the same dwelling, the burden of proof is on the petitioner to show that the wife's offense was not condoned by him; that this requirement, imposing the burden of proof upon him, cannot be answered by the testimony of the petitioner alone, but that the same corroboration is necessary thereto as is required to establish the grounds upon which divorce is to be decreed. I do not so understand the law. Condonation in divorce proceedings is a defense, the burden of the proof of which is upon the party setting it up. The exceptional rule, requiring corroboration of the testimony of the parties to the suit, as to facts relied on as grounds of divorce, may, with propriety, be applied to a party who sets up condonation as a defense; but the prima facie case of condonation having been made out, there is no reason why it cannot be met with the same measure of proof as in ordinary cases. But counsel for defendant claims to have made out his defense of condonation by a preponderance of evidence. He first invokes the fact that the husband and wife occupied the same house down to the 22d of October. Condonation is inferred from the fact of sexual intercourse after knowledge of guilt. Browne, Dig. Div. 31. The general presumption is that husband and wife, living in the same house, live on terms of matrimonial cohabitation, (Beeby v. Beeby, 1 Hagg. Ecc. 789; Marsh v. Marsh, 13 N. J. Eq. 281-285; Burns v. Burns, 60 Ind. 259;) but this, as every other presumption, may be met and overcome by proof of facts or circumstances which destroy the probability, from which presumption springs, that married persons living in the same house maintain marital relations. Thus, if it is established satisfactorily that the parties occupied separate apartments, or that there was no access, the presumption is entirely destroyed, and I know of no rule of evidence which requires any different proof to overcome such presumption than that which obtains with reference to ordinary questions of evidence. In the case of Stevens v. Stevens, 14 N. J. Eq. 374, cited by counsel, the bill was filed for divorce on the ground of adultery. The bill stated that the parties lived together as man and wife until a period subsequent to the adultery proved; and there was no express and unequivocal denial of the wife's previous knowledge of the husband's guilt, in the bill or in the wife's evidence. The chancellor said: "The language both of the bill and of the evidence is cautious and guarded. It all may be true, and yet the complainant may, for years before she ceased to cohabit with her husband, have had certain knowledge of his infidelity." He says further: "Where it appears that the wife has continued to live with her husband after the offense charged is proved to have been committed, there should be facts or circumstances to show that the offense has not been condoned, or a clear, express, and unequivocal denial by the complainant of knowledge of her husband's infidelity during the continuance of their cohabitation, and a report by the master adverse to the condonation. Dodge v. Dodge, 7 Paige, 589; Dobbs v. Dobbs, 3 Edw.Ch.377; Kane v.Kane, Id. 389. It is true that there is no rule of this court, similar to that of the court of chancery of New York, which requires that the bill shall aver that the complainant has not cohabited with the defendant since the discovery of the adultery; but where it appears upon the face of the bill that cohabitation between the parties continued long after the adultery is proved to have been committed, there should be an express denial on the part of the complainant of voluntary cohabitation since the discovery of the defendant's infidelity, or such facts and circumstances should be shown as to preclude a condonation of the offense."
In that case, there was not only joint domicile of the parties, but actual cohabitation, admitted by the bill, and not followed by a denial of knowledge of defendant's guilt during such cohabitation. The difficulty was not that the complainant did not make out a case, but that she went further, and suggested facts which presumed a defense, and then did not rebut it. If the bill had denied knowledge of the offense until after cohabitation had ceased, and that had been sustained by the testimony of the complainant, it would have been a sufficient rebuttal of the presumption raised against her. In this case cohabitation is expressly denied by the petitioner. He testifies, unequivocally, that for two weeks prior to their separation, on the 22d of October, he had ceasedto share her bed; and, on being recalled, expressly denies having had any marital relations with her during that time, and particularly on the nights of the 20th and 21st of October. The defendant, on the other hand, while admitting that her husband occupied a separate apartment from her for two weeks previous thereto, distinctly states that he slept with her, in the same bed, on the nights of Tuesday and Wednesday, October 20th and 21st, and that he had sexual intercourse with her on Tuesday night, the 20th of October. The parties are, therefore, upon this point in direct antagonism. It is a point as to which it is seldom possible to find corroboration. The question, in the absence of corroboration, must be decided by ascertaining which of the parties is entitled to the most credit. Condonation implies guilt on the part of one, and knowledge of that guilt on the part of the injured. By this defense the wife practically says: "I was guilty of adultery, and my husband, knowing that fact, willingly returned to my embraces." Lord Stowell, in D'Aguilar v. D'Aguilar, 1 Hagg. Ecc. 773, says: "The adultery is almost admitted in the interrogatories, by insinuating the defense that the wife was cognizant, and had forgiven." The defendant has, however, in this case, under oath, denied that she was guilty. If she was guilty and forgiven, as this defense assumed, she is false in her testimony; and I cannot accord the weight to her testimony, upon this point, that will overcome that of the petitioner, who is not discredited. We have also, upon the question, the testimony of defendant's niece, Sarah E. English. This witness was a girl of some 16 years of age, who was living with the parties at the time in question. Her duties there were to help around the house. The pertinency of her testimony is as to the condition in which she says she found the bed in the back room on the second floor, on the mornings of October 21st and October 22d. Graham says he slept in this room the nights of October 20th and 2lst. The defendant says he slept with her, in the front room. All agree that for three weeks Graham had slept in the back room. He says his wife and the little girl made up the bed when he slept there. The defendant says the little girl generally did, and Miss English, the little girl, says she made it up for the three weeks. She says that on the morning after the 20th she saw the bed and the bedding of the room which previous to that time had been occupied at night by Mr. Graham, during the illness of his wife,—viz., the back room; that it did not need making; that she went to make it, but it was made up; that she saw the bed and bedding in that same room every morning between the time Mrs. Graham returned and her going away, which were Wednesday and Thursday mornings, and that it was always made up when she went there,— it did not require making; that witness attended to the work in her own bedroom before going down to breakfast on the morning of Thursday, the 22d; that Mrs. Graham was down stairs first on that morning. She got the breakfast, witness came down second, and then Mr. Graham. That on that morning she made her bed, and came down the back stairs, and looked into her Uncle Sylvester's bedroom, but the bed was made; that she went in to make it, but it was made, and that all the work she did that morning was to wash some of the dishes. The testimony of this witness amounts simply to the fact that when she came down stairs on the mornings of October 21st and 22d, she found the bed made up in the room which her uncle had occupied for the three weeks previous. Of course there is no importance to be attached to this circumstance if the bed had been made by Mrs. Graham herself, and 1 do not understand her to say specifically that it was not. But I do not think much weight is to be given to the testimony of this witness, on account of her physical condition. She was, at the time of her examination, seriously ill with typhoid fever, at the residence of the sister of the defendant. Her constant attendant and nurse during that time had been the defendant. When her deposition was taken, Mr. Dawes, the master, states that they were interrupted very considerably during the taking of the deposition, caused by the weakness and fainting of the witness; he cannot say, exactly, any fainting; it seemed to be weak spells, which were relieved by Mrs. Graham administering to her medicine or water; that part of the time of the examination Mrs. Graham sat on the bedside of the witness, holding her hand; that the girl appeared to be very ill; that she answered, as far as he could judge,—she was intelligent and conscientious; that at times she became weak, so that the examination was suspended, —physically weak,—and on cross-examination the witness became unconscious, and the examination was suspended. Up to that time she answered the questions. He was asked: "Is it true that at times her answer was rather unintelligible, and that we had sometimes to supply the answer, and ask if it was correct?" to which he replied: "Yes, sir; of course the desire was to make the witness understand the question, and we would repeat it, if necessary, to And out whether her answers were finally as they are recorded there in the deposition." It is stated at the end of the deposition that at this point the witness became weak and unconscious, the examination was terminated, and the reading of the testimony to her, and her signing the same, were waived. She was examined January 2, 1892, and never recovered. Her testimony was of vital importance to the defendant. She knew that she was the only one who was to corroborate her in her claim that her offense had been condoned. She herself had gone upon the stand and testified to her innocence of the crime, the forgiveness of which she desired this poor sick child to testify to. She had been, as stated before, her com panion and nurse for weeks before, and it is easy to understand bow impressions may have been so firmly made upon the mind of this sick child during her illness that she may, without accusation of having intentionally misrepresented, have become confused in her dates and her recollections of events. Her testimony shows tills very clearly. She says at first that Mr. Graham sent her away on the morningof the 22d, and afterwards that it was not until afternoon; she says at first that she went with the defendant to the railway station on October 17th and 22d, and saw her buy her ticket, but afterwards she says that on the 17th she did not go all the way to the station, and afterwards that it was on the 22d she did not go to the station She says her aunt was well when she came back on the 20th. Her aunt and Mrs. Lucas both say she was about the same, and was obliged to go back to Philadelphia for treatment. She says she expected her aunt on the 20th, I but her aunt says she did not intend to go home until two days later. She says they retired together, but her aunt says they did not, on the 20th, and the testimony of Mr. Shreve shows that the petitioner did not retire until at least two hours later than the witness. There are various other instances where she has contradicted herself or been Contradicted. The point was one \ with reference to which site might naturally be confused,—it was only whether a bed was made up; there was nothing about it to fix it on her mind; her aunt says she generally made the bed, not that she always did. Of course 1 acquit this child of any intentional misrepresentation under oath, but think that her testimony, under the circumstances, even if more criminating than it is, should not betaken to overcome the positive declaration of the petitioner, and the probabilities of the case. He had been repeatedly warned to avoid this very thing, and for three weeks had occupied a separate apartment. This night was just at the point of the investigation when it was more necessary than at any other previous time not to commit such an act of folly. The child's testimony relates particularly to Thursday morning. The defendant charges sexual intercourse on Tuesday night. She does not specify Wednesday. She swears that Tuesday night her husband returned from the office about 9 o'clock; came to her room; they spoke of the detective folio wing her; and that; he did not leave the house again that night. Graham swears that when he went home, about 9, she induced him to come into her room, and that while there she spoke of the detective, and that, after hearing this, he returned to his office, where he remained until after 11 o'clock, when he went home, and to his separate apartment, and slept alone. He is corroborated as to this second visit, and, incidentally, that it was after he heard she had noticed the detective, by Mr. Shreve; and her story is, so far as possible, contradicted. But its inherent improbability would condemn it. We are asked to believe that a man to whose ears have come rumors of his wife's infidelity, that have no definite shape, but are the floating suspicions or stories of the townspeople, and which are told him by his partner, who has no knowledge of their truth, consults counsel, and a detective is employed to watch the wife; determined on divorce, if investigation verified report, and warned against the effect of sexual intercourse under the circumstances, he occupies for two weeks a separate apartment, and at last gets a report from the detective, who had followed the wife in Philadelphia to a strange house, where she had remained for over an hour, and afterwards gone from place to place,—just enough to give substance to suspicion, yet nothing definite as to criminality; who learns from her that she knows she has been shadowed, and leaves her to again see his counsel, and arranges to go on the morning and prove his wife's guilt or innocence by ascertaining why she has visited this house in the city,—and then, knowing its effect on his case if his suspicions proved true, deliberately goes to her bed and her embrace. This is so contrary to what we know of human actions that it does not commend itself to our belief.
But there is another element necessary to establish condonation, and that is knowledge on the part of the injured one of the offense of the guilty; and this leads us to an examination of what knowledge the petitioner had at the time of this alleged intercourse. Chancellor Green, in Marsh v. Marsh, 13 N. J. Eq. 281, 282, says: "Condonation may be implied if the husband, after reasonable knowledge of the infidelity of his wife, continues to admit her as the partner of his bed. * * * treasonable knowledge may be said to have been had when information of a fact is given by credible persons, speaking of their own knowledge, particularly if the same facts be after wards proved, and they become instrumental in the proof;" (283,) quoting from Dr. Lushington in Dillon v. Dillon, 3 Curt. Ecc. 86: "I have always understood the legal principle to be this: That when a husband had 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." Lord Stowell, in Elwes v. Elwes, 1 Hagg. Consist. 269, 292, says: "A husband has suspicions; he has some intimations; he has enough to convince his own mind, but not to instruct a legal case. In that distressing interval his conduct is nice, and it is difficult to refrain from cohabitation, as the means of discovery would be frustrated; and if he continues cohabitation, it then becomes liable to that species of intimation which has passed to the disadvantage of this gentleman;" and in D'Aguilar v. D'Aguilar, supra: "There is no evidence which satisfies the court that she was apprised of it in any other manner than upon general or a probable suspicion,—it is not shown she knew it so she could legally prove it." See, also, Pain v. Pain, 37 Mo. App. 110-115; Hoffmire v. Hoffmire, 7 Paige. 60; Uhlmann v. Uhlmann, 17 Abb. N. C. 276. There is no evidence whatever that the petitioner had knowledge of anything more than the floating rumors affecting the relations existing between his wife and Stiles at the time the petition was filed, on the 22d of October. It is more than probable that he bad no proof of the truth of these stories which he could put his hand upon, or it would have been unnecessary for him to have employed a detective, and place his wife upon a system of surveillance, for it does not appear thathis suspicions had been aroused with reference to her connection with Kirby until after the report received from the detective. Now what knowledge did he have, as derived from the detective? That he suspected his wife is true. He admits it, and the employment of a detective would prove it. The detective got upon the track of the defendant in Philadelphia, on Saturday, the 17th of October, and followed her to the boarding house of Wenrich. She went into that house at 5 minutes past 9 in the morning, and remained there until 20 minutes past 10. He then followed her around from there to various places, and left her at her sister's. On Monday, the 19th, the detective went to Mrs. Wenrich's, the boarding house, and saw Mrs. Wenrich, but the evidence of both shows that this visit of the detective was to examine the house, and it does not appear that anything was said between them with reference to the visit of the defendant. On Tuesday, the 20th, he again followed her, and left her in Camden, at her sister's; but she did not go to Wenrich's that day. Later in the day he saw Mr. Graham at Mr. Beldon's office, and made a report to him. Exactly what he stated to the petitioner at this time or at any other does not appear, in consequence of the objection of defendant's counsel to evidence being given of what took place between these parties in the absence of the defendant. But it may be presumed, and he says at one time, he did tell him all that he knew; but what did he know? All that he did know with reference to this charge is that, on the 17th, she had gone to various places, including the house of Mrs. Wenrich, and the further information, obtained by him on Monday, that this was a boarding house, and, to all appearances, a respectable place. It does not appear that then the detective had even heard of Kirby. There was the all-important link yet wanting, namely, what was the object of defendant's visit to this place, and what did she do while there? The visit of a married woman to a respectable boarding house, although unknown to her husband, might be, and, in all probability, would be, entirely innocent,—no presumption of guilt possibly arises from these conditions alone. Mr. Graham met his wife that day at her sister's, after seeing the detective. He did not want her to return to Bordentown. He endeavored to dissuade her there from, urging that it would be necessary for her to return so soon to Philadelphia, but she did come back. She on this occasion upbraided him for having employed a detective to watch her. With the knowledge which he then had, in the conference between himself, his counsel, and his friend, Mr. Shreve, it was determined that it was necessary to ascertain the further step indicated, namely, what had been the reason of the defendant's visit to this house of Mrs. Wenrich, and thereupon the engagement was made which resulted in Mr. Shreve's going to Philadelphia with the photograph of the defendant. This Shreve did on Wednesday. He there met, by appointment, the detective, and the two saw and interviewed Mr. Wenrich, who, on the photograph of defendant being shown to him, recognized it as the woman who at his house passed as the wife of Eugene Kirby. This completed the chain of evidence. Mr. Shreve did not return to Bordentown until late Wednesday night. He did not see the petitioner until Thursday, after the defendant had, for the last time, left her husband's house. The facts ascertained were reported to petitioner on the morning of Thursday, the 22d, when he immediately closed his house, sent his wife's niece home, and verified his petition for divorce. So that it appears that "reasonable knowledge" of the infidelity of the defendant, as defined by the authorities, was not in the possession of the petitioner until the morning of Thursday, the 22d of October, the very day the petition was filed; and there is no pretense that since that time he has had any marital relations with her. I am of opinion the petitioner is entitled to a divorce.