The Express.
London, England, 1859-06-17 00:00:00

COURT FOR DIVORCE AND MATRIMONIAL

CA USlll3.—Jusiz 16.

(Beim the Lord Chief Junior. the Lord Chief Bern, end
the Judge Ordinary.)
CUR:411,4070N 11. CUNNINOTON.-lITATINCIS,

In this one, which was beard on the 24th nit, their lord.
ships delivered judgment, and decided a somewhat curious
Lineation which had Armen on the constructi= of tbe proviso
to the 31st clause of the Divorce Act, namely, whether •
person who is suffering imprisonment for felony can be said
to neglect his wits within the meaning of the statute ? The
proviso, it will be remembered, is in the following terms:—
. Provided always that the court shall not be bound to pre-
soma, sash dame if it gall find that the petihoner has
during the marriage been guilty of adultery, or it tbe
peM-
timer shall, in the opinion of the court, here been guilty of
unremonable delay is presenting or prosecuting such peti-
tion, or of cruelty towards the other party to the marriage,
or of having deserted or wilfully tend himself or herself
from the other party before the daleery complained of, and
without reasonable encase, or of each withal neglect or mis-
conduct as has conduced to the adultery."
The circumstances of the case ware of • painful and
somewhat singular character. The petitioner married
the reepotidett at St. Botolph's, Alder/gate, on the
121 k of September, 1849, bang at that time • clerk
la the post-office, with • salary of 801. a year, and no oth-r
resources. For 14 months the mai= was =extremely happy
one; but in Noveint.r, 1860, he was apprehended for steal-

big a shilling out of a litter, and for thiarroffeeme he was sen-
tenced to 10 years' traceouriatie a. The reerneent for some
time conducted Herself es an exemplary end l.val wile, and
regularly wrote to her husband in the meet affectionate and
pious terms. In 18.2 ate went to lodge with a Mrs. Daven-
port, at Renton, in Essex, where she passed by the name al
Ashton. lie. Davenport had soother lodger, a perms
named Noble, the bailiff of • gentleman of lap property la
the neighbourhood. At first Noble seemed to dislike the
respondent, but happening accidrotally, some six or eight
months after her arrival, to see a letter directed to her se
Mrs. Cutinington, he raked his landlady for an ex-
plmation. Mrs. Davenport then told him her hie-
tory. Ile said be pitted her, and from that day
he began to show her attentions, which unhappily
secs opened into an improper intimacy. Mrs. Daven-
port as soon as possible sent her lodgers away, and
they afterwards lived openly together so man sad wife. In
the meantime Mrs. CunnierMs s correspondence with her
husband continued to be as edifying and edoetionste so ever;
bet in March, 1865, the petitioner was astounded by receiv-
ing fr tm her a letter, in which, after reproaching him ebb
the misery he bad canted her, and the penniless condition in
which he had left her, she announced to him that " fortune
had, homey, r, smiled on her, and had produced her a fro*
who in the course of a short time had formed for her a sin-
oars and lasting attachment. Thar attachment she had we-
turned with ell the warmth and ardour of her broken hart;
and the result was she had heroine a happy mother, Bed
would shortly sive birth to smother." The letter amicludell
by advising the petitioner, when he regained his liberty, toga
to Australia. The petitioner shortly afterwards received a
ticket of leave, and was now maintaining himself as a omet
reledee MUM
The Lord Chief hatice said It was evident that but hr
the peridoner's own misconduct the adultery would la ell
probability never have bees committed. 8 ill, though seine
Ia non, It nista. the cause maims of the wiles edemas.
t the time the petitioner stole the shilling he was behaving
totter like ea attached husband, and when years aftcrwi
he heard of her infidelity, the intelligence ceased him the
name anguish. To suppose a parallel case--8 an officer
were imprisoned for sending a challenge, or fighting
a deal, sad Ws wife committed adultery while he
was thus absent front her, it would surely sot be contended
that he had diseatitied Mined( to the remedy the law aflorded
en injured husband, because his wife's infidelity might be
traced to hie own act? It was clear that the " neglect or
mlsooadect" imatemplated by the clause must be ejusdern
Emeriti with the words which preceded it, and meet be acme
mint or misconduct in the conjugal capacity—it must be
the breach of come conjugal duty—in short, the party most
la seine way have rendered himself accessory to the adder,
of which he complained. It could not be the polisy of the
law to under immunity on a seducer who availed Moult of
the enforced ahem* of a husband who had lichened all
marital duty without reproach. NM* Illimiefore, mica or
'lbis of the deity imposed en the court to lord whet top