The Sun.
London, England, 1842-04-23 00:00:00

BAIL COURT, April 22.

FINLAY V. BIRD.
This was an action for 581. 81. sfaci., the price of work done
for the defendant by the plaintiff. The plaintiff entered into a
contract with the defendant to survey.the ground from Staines
to the Grand Junction Canal, a distance of seven miles, -which
it was necessary should be completed by the 30th of November,
in order that the survey may be lodged in the House of Com-
mous. But the plaintiff, and those whom he engaged to
complete the work, did not commence the survey till the 24th
of November, and he told the defendant that it would be
scarcely possible to complete the work at the time specified, to
which the defendant replied that they should only do their
best, because though the survey was not complete by the 30th,
he might afterwards get the standing orders of the House of
Commons suspended and the survey lodged. The plaintiff in
consequence ordered the survey, and it was proved in evi-
dence that the surveyors made every expedition. The defence
set up was, that the survey not being complete it was of no use
to the defendant.

His LORDSHIP briefly summed up the evidence, and the Jur3
brought in a verdict for the plaintiff to the full amount claimed.
Mr. Thesiger appeared for the plaintiff, and Mr. Richards
for the defendant.

INSOLVENT DEBTORS' COURT, April 22.

IN RE JOHN WHITE.

The insolvent in this case was a boot and shoe-maker, carry-
ing on business at Newington.causeway, where he also kept the
post-office. His petition to be discharged was supported by
Mr. Cooke. _ _ _

Air. Nicholls, on behalf of a person named Kemp, who was
a bill-discounter, in Finch-lane, opposed the insolvent's dis-
charge on the ground of having made away with properly to
the detriment of his creditors. After a number of witnesses
had been examined, whose evidence occupied the entire mornin2r,
Mr. Commissioner BOWEN said he could not entertain the
opposition for a moment, as there was no proof of the insolvent
having disposed of any proferty in such a manner as to render
him amenable to the discretionary clause of the Act.
The insolvent was then discharged forthwith.
IN RE JOHN ABRAHAM SMITH.

The insolvent appeared in Court to receive judgment. He
had been already brought up for hearing, when the case
was adjourned for further evidence. The facts have been
already reported in The Sun. He was, remanded for six
mouths from the date of his vesting order, at the suit of Mr.
Swan, who was appointed assignee.

CONSISTORY COURT, April 22.
JUDGMENT.—DILLON v. DILLON.
On the opening of the Court, Dr. LUSIIINGTON gave judg-
ment in this case. This was a suit brought by the Rev. Dr.
Dillon against Frances Charlotte Dillon, his wife, for separa-
tion, by reason of adultery. Certainly, since he had sat in
that Court he had never met with a case in which the evidence

required more careful and painful investigation. On the part
of the wife the adultery was denied, and it had been further
alleged that the conduct of Dr. Dillon, after the discovery of
the adultery, was such as to bar him of any remedy, even•if the
charge of adultery should be found to be sufficiently established.
It was to this point that his attention must be directed. The
marriage took place at the end of November, 1839, and it was
truly stated by the counsel for Dr. Dillon, not under happy
circumstances, for it was proved by Mr. Wingett, a wit-
ness for Dr. Dillon, and his intimate, that previous to
such marriage, Dr. Dillon had seduced this young woman,
who was under twenty years of age, and had had a child by
her. When this case was adverted to by the counsel in
favour of the remedy for which Dr. Dillon prayed, it was
observed, that however reprehensible the conduct of Dr. Dillon
might have been in this particular, the Court ought not to visit
him with punishment, on account of it, in this suit. Certainly
not, and the Court wholly disclaimed both the intention and
the power to do it. Farther, a marriage under such circum-
stances, is of itself commendable; for it was making all the re-
paration in the power of the individual for the injury he had
already done. What had occurred between the parties previous
to marriage never ought to be allowed to operate on the circum-
stances occurring after marriage, so as to form a bar to Dr.
Dillon's claim. Still, in a claim like this, facts occurring
prior to marriage were not altogether without a legiti-
mate bearing, for the Court apprehended that a hus-
band, contracting a marriage under these circumstances,
was bound to exercise a more than ordinary degree of care and
circumspection to prevent his wife deviating into those paths
of vice into which he was the first to lead her. The cohabita-
tion was of no long continuance; the citation was taken cut
on the 10th of May, 1841, and there was not much evidence
to show on what terms they lived together during such cohabita-
tion. From all appearances, however, they were not happy
ones. Dr. Dillon had often complained of his wife absenting
herself, but under what circumstances there was no evidence
to prove. He would now proceed to the charge of adultery,
which was contained in articles 4 and sof the libel. It was
alleged that it took place on Tuesday, the 29th December,
1840. It was stated that Francis Charlotte Dillon went on that
day to Gravesend, in the county of Kent, for the ostensible
purpose ofa visit to her mother, Mrs. Drury, for several days,
her mother residing at or near Gravesend ; for this visit she
had solicited, and obtained the consent of the husband, who
accompanied her to Hlackwall, from whence she went by the
steamer, as if for the purpose of going to her mother's house.
That some time previous to the premises, Frances Charlotte
Dillon had formed an adulterous intercourse with some man
whose name is unknown. The deponent alleges that, on the
arrival of the steam packet at Gravesend .Mrs. Dillon was met
and joined by some man, and shortly afterwards proceeded in
an omnibus or public conveyance to the Sir John Falstaff Inn,
at Gadshill, where they spent the evening and slept together.
On Wednesday, the 30th, they left the inn for Gravesend, on
which occasion she stated to the chambermaid, while assisting
to dress her, that she had a mother living, to whom she
was going. The first observation naturally occurring on reading
this statement was the absence of all preliminary circumstances
leading up to and rendering the adultery probable. In most
cases it was true that the adultery is clandestine, but it was
equally true that when the parties were living together there
was, in the great majority of cases, evidence after the discovery
of the fact that rendered the fact probable. It was the com-
mon and ordinary course of things that the previous circum-
stances came to light, and were appealed to and proved. This
species of evidence was always looked for ; and, indeed,
required where the circumstances allowed of its production.
It was more than once observed by Lord Stowell, that the
Court looked with extreme jealousy on cases where the fact of
adultery alone was appealed to, and all the previous circum-
stances rendering the adultery probable were entirely omitted.
It was upon these facts the Court looked, as tending to show
whether the fact was probable or not. Upon the present occa-
sion all such evid, nce was wanting, and it was only on the
cross-examination of Mr. Wingate, that it accidentally came
out that Mrs. Dillon had been in IA habit of absenting herself
from home, how often, under what circumstances, and what
means Mr. Dillon took to check such a habit, and bound he
was to exercise all the control of a husband, well knowing that
he had not married her under ordinary circumstances—with re-
spect to all these facts, the Court was left wholly in the dark.
Such evidence, assuming the facts to be true, on the part of
Dr. Dillon, might have been given, and there could be no
doubt that, being thus purposely kept in the dark, the Court
was boiled to take especial care, with respect to the further
facts of the case, that it walked in the light. To proceed to
the charge of adultery, it was not proved by any evidence that
on the 29th of December, 1840, Airs. Dillon met any man
whatever at Gravesend ; but it was admitted that in the after-
noon of that day, she was in the neighbourhood of Gadshill,
where, it was alleged, she went and committed the adul-
tery. The fact was not unimportant in its bearing. if
the three witnesses were not grossly perjured. They
proved that some man and woman did sleep at their house
on the night of the 29th December, which, if true, would
bring the question merely to one of identity. With respect
to the particular day, it was of course very important, and
under the circumstances, he should have but a slight reliance on
the accuracy of the memory of a witness, unless, from some pecu-
liar facts, they were enabled naturally and probably to fix them
on the memory. It certainly appeared that the facts spoken to
by one witness of a ball that was to take place on the 31st day
of December, the last day of the year, was a fact reasonably
tending to enable the witness to fix the time. Nor was
the accuracy of Mrs. Wilson affected by the state-
ment of the maid, that the parties slept in the house
two nights before Christmas day, and not two nights
before New Year's day. It was but a slight error,
and not such a discrepancy as would lead the Court to doubt
the accuracy with which the witness had fixed the day, or the
probability of the fact making due impression on her mind.
With regard to the identity of the persons, the power of a
witness to speak to the identity of the parties who slept in
the house on the 29th of December, would much depend on
the opportunities they had had of seeing them, and having
their attention called to them. Mr. Wilson, who attended
the parties at tea, and again in the morning at breakfast, had
such opportunities as might enable him to speak to the
identity of the parties with reasonable certainty. He said
reasonable certainty, because, in all common cases, he was
of opinion that an innkeeper was not the best witness as to
the guests whom he sees but once. This was obvious on
the slightest consideration, because from the habit of seeing a
very considerable number of strangers, unless some particular
fact called his attention to the personal conduct
of any individual, he was not likely to retain
any very fixed recollection of their persons. But
upon the present occasion, there was, as stated by
the witnesses, the additional and particular fact of the
lady having lost one eye, or that it was visibly affected ;
and also the particular fact, that the person who accom-
panied her again came to the inn in May afterwards, and
spoke of bringing the lady there again. The maid ser-
vant, rances Gough, had still more ample opportunity,
according to her own aecount, of ascertaining the identity.
She not only waited on the parties, but assisted the lady to
dress and undress ; and she fui ther stated, that upon see-
ing her in the steam-vessel as she was leaving, she recognised
her. It was unnecessary to travel through the evidence as to
the mere fact of adultery, because, unless this witness was
grossly perjured, it was clear they slept together at the
inn at Gadshill. In the libel it had been stated
that the person who slept there told the chambermaid
while she was assisting to undress her that she had a mother
living, whom she was going to see ; that was true as stated in
the libel, but the evidence of the servant went further, for she
says that she not only stated that she had a mother living, and
was going to visit her, but that she had not seen her for eight
or nine years. Now, though the adultery here charged was
limited to one occasion only, and although there was no circum-
stance either preceding or succeeding it to throw any lightupon
the case, yet he felt himself bound to say that the onus of
proof which was thrown upon the accuser was prima facie
borne out by the evidence. But before the Court arrived at
the conclusion, that the adultery was established, not only must
the evidence be duly weighed, but many other important and
peculiar circumstances must receive grave consideration. All
this must be done before the Court could arrive at the deter-
mination that the facts alleged were proved, and that Dr. Dillon
was entitled to the divorce he prayed. The evidence with re-
gard to the alibi consists of Mrs. Drury, the mother of
Mrs. Dillon, who at the bine resided at Gravesend, Janet
Rumball, Emily Dix, and Elizabeth Lloyd. They were exa-
mined to prove that Mrs. Dillon was at Gravesend, and slept
there on the night in question, and therefore that she could not
be at the Sir John Falstaff. Now these witnesses were in that
situation which induced the Court to watch their evidence with
great diligence. With respect to Mrs. Drury she was the
mother of the party accused, but it was riot on that account
alone that the Court had watched her evidence with great dili-
gence, or that it would say that she ought net to be entitled to
credit, for nothing could be more irnprt per than to hold that a
person standing in the situation of mother to the accused
could not be examined. It came therefore to this, that
when they came to examine a witness connected with
the parties as to facts, they were to consider whether
that witness was entitled to credit or not. Now,
if Mrs. Drury, Janet Rumball, and Emily Dix spoke the
truth, it was manifestly impossible that Mrs. Dillon conld
have been at the Sir John Falstaff at the time stated. Eli-
zabeth Lloyd did not establish the fact with the same certainty,
for she spoke of Mrs. Dillon being at her mother's on Tuesday
evening at six o'clock, so that she might have gone to the Sir
John Falstaff. But the evidence of Elizabeth Lloyd was of
considerable importance, for it tended strongly to corroborate
the evidence of Mrs. Drury, Janet Rumball, and Emily Dix of
her having been at the house at Gravesend. With such means,'
looking at the contradictory nature of the evidence, the credit
of the witnesses was most important. The credit of these four
witnesses, the manner in which they gave their evidence, and
! the probability of the reasons which induced them to
fix so positively on Tue3day night, were circumstances
which the Court must look to in pronouncing its judgment.
The fact that Mrs. Dillon did go to Gravesend with the con-
sent of her husband on the 29th of December, took away all
improbability of her going to her mother, and put in doubt, at
least, the circumstance of her being at the Sir John Falstaff;
and it had this additional bearing, it was in unison with the
evidence of Mrs. Drury, when she stated that she had written
to, and expected her daughter. The Court, upon a careful ex-
amination and consideration of Mrs. Drury's evidence, con-
sidered that it was not marked with such improbability, or was
so void of truth, as to give it no weight. Mrs. Drury's' evi-
dence was confirmed by that of Janet Rumball, Elizabeth
Lloyd, and Emily Dix. The Learned Judge did not think it
necessary to follow minutely all the circumstances stated;
they appeared probable, and were spoken to by all the wit_
nesses, as well as Mrs. Drury herself. Elizabeth Lloyd
was, as far as it appeared to the Learned Judge, as credible a
witness as any in the cause. She did not attempt to go beyond
the facts in her own mind, she simply gave the fact that she
had been engaged to go that evening to sleep at Mrs. Drury's,
for the purpose of making a dress, and she did not attempt
to carry down the presence of Mrs. Dillon at the house of Mrs.
Drury, a moment longer than six o'clock. If she had been
brought forward to establish the fact of an alibi satisfactorily,
it was to have been expected that she would have gone
further. The question was, was she a credible witness,
and were the reasons she gave as impressing the cir-
cumstances on her mind consistent. Now with respect
to that, the Learned Judge would observe first,
that Thursday was New Year's Day, was a fact admitted on
both sides. Now what were the circumstances that occurred

to her, not simply that she was disappointed at not sleeping
at the house, but that she had, at six o'clock at night, on the
29th of December, to go back to Northfleet, having no other
place to sleep at. That was a circumstance calculated to make

on impression cn the mind of any -witness, and induced the
Learned Judge to think her evidence entitled to credit. With
respect to the evidence of Emily Dix, there was nothing in it
that would induce the Learned Judge to say that she was a less
credible witness than f ratices Gough, the servant at the Sir John
Falstaff; they were both in the same situation of life, and equally
entitled to credit. Her reasons for fixing the day might not
be so cogent as those operating on the mind of Mr. and Mrs.
Wilson, but still there was no appearance of fiction in her
evidence. To her the circumstance of being permitted
to have a holiday was likely to fix the time on her memory.
Her statement, too, of her interview with Mrs. Dillon on the
10th of May, was consistent in itself and with the evidence of
Janet Rumball; and it was scarcely possible—he was now
alluding to what took place on the 10th of May, when Dr.
Dillon went down for the purpose of seeing this girl ;
she had quitted the service when Janet Rumball was
closely examined as to what took place on that occasion, and
so also was Emily Dix—they had to give detailed evidence as
to what occurred, and they were both consistent in that evi-
dence, and it was impossible that it should have been concocted
by two such witnesses ; they could never have met a cross-
examination, such as had been applied to them, by any previous
concert. Now, he was bound to say that there was one fact
deposed to by Emily Dix—he was now considering her
credit—of a very startling description ; he referred to her evi-

THE SUN, LONDON, SATURDAY MORNING, APRIL 23, 1842,

dence on the 9th article, and she on the 9th article stated,
agreeably to her belief, that subsequently to the 10th
of nay Dr. Dillon did come to her; did question her as to the
day Mrs. Dillon came to her mother's, and did endeavour to
persuade her to say that it was on the Wednesday. She stated
that at the time of the first interview she mentioned it to her
mistress, and that the person returned a second time. The
reference to her mistress certainly tended to show that some
one at least so visited her ; but he had thought it his duty to
look at the answers. Dr. Dillon there positively denied that
he ever had any interview with this witness at all. Now upon
her sole testimony as against Dr. Dillon, in this particular
opposed by his answers, he thought he should not be
justified in imputing to Dr. Dillon the
.attempt to induce
this witness to swear falsely; but though he did not impute
to Dr. Dillon the offence of endeavouring to pervert the evi-
dence to be brought before that Court, yet on the other hand
he should be wholly unjustified in imputing to this witness that
she had wilfully told an untruth. The principle which he had
acted upon in considering this evidence was analogous to that
which was acted upon in a Court of Equity where a single
witness deposed to a fact, which fact was distinctly denied in
the answer of the other party ; and though he did mot say that
those principles could always be carried out in those Courts,
and indeed they ought not, yet he thought, in a case of this
great difficulty, it was justifiable to resort to that principle, and
he thought there might be equal justice between the parties
when on the one hand he disclaimed imputing to Dr. Dillon
any culpability with regard to the witnesses, and on the other
did not fix upon Emily Dix the charge of having told a wilful
falsehood. Now this was the evidence of those seven witnesses.
He feared that, in looking at other parts of the case, it would
be indispensably requisite to advert to other parts
of their testimony which would have a bearing also
on the question of credit and identity. But he had now
considered the evidence of these seven witnesses, as to the
great point in dispute ; viz., as to where Mrs. Dillon slept on
the night of the 29th of December ; and he was compelled to
say that on whichever side the truth might be, on the examina-
tion of the evidence of these witnesses, so far at least as he had
hitherto gone, he was placed in this painful predicament: he did
not find sufficient to enable him to say that either party
had been guilty of wilful perjury ; if mistakes there
were by either, it was certainly as difficult to be
accounted for. In such a case it behoved the Court to proceed
with great caution ; and, therefore, he should now address him-
self to the other points arising in this case. There were two
points to which tho evidence in great measure equally applied,
and he should deal with them together ; the conduct of Dr.
Dillon before and after the discovery of the alleged adultery,
what took place as regarded the witnesses, as regarded his wife,
and with regard to the unknown adulterer. The evidence
as to the manner in which the adultery first came to
the knowledge of Dr. Dillon, was given by Mrs. Wilson on the
7th and Bth interrogatory, and the truth of that statement could
not be denied without impugning the veracity of one of the
principal witnesses examined on behalf of Dr. Dillon. He
would not advert to the other alternative, or, to the supposi-
tion that Dr. Dillon had wilfully mis-stated the truth. Now
what were the facts established by Mrs. Wilson's evidence on the
7th interrogatory. Having first said that Dr. Dillon had called
upon and questioned her, she said, " My husband was the only
person present on that occasion. Dr. Dillon stated that he had
been repeatedly written to about his wife to watch her move-
ments; that he paid no attention to the letters he received
about her, till he received one from a friend of the gentleman
who had been with her at our house, and who had quarrelled
with the said gentleman, stating that his wife and the said gentle-
man had slept at our house on the said 29th day of December."
Now the Bth interrogatory went on further to say, that she did
not know who the man was, that Dr. Dillon said he did not
know the man himself, but that he had been told that he was
the son of a solicitor, living at No. 3, somewhere, at a place
which Dr. Dillon mentioned in Lincoln's Inn. Now what did
Dr. Dillon do upon this? That which was not prudent in any
ease, and still less in one like this. He undertook the investi-
gation in person, and going down to the inn there saw the two
principal witnesses. This happened some days before the 10th
of May ; he went down twice, between the beginning of May
and the 10th of May. Mrs. IN ilson stated that on Mr. Wilson
observing that the lady had something the matter with one of
her eyes, Dr. Dillon said, " It is my wife," and was much af-
fected. Pursuant to an arrangement then made, Mr.
Wilson proceeded to town on the 10th of May, and met
Dr. and Mrs. Dillon at the Polytechnic. The conver-
sation which took place was somewhat singular. The
previous facts which he had mentioned must be borne
in mind. It was for the purpose of identifying this lady that
Mr. Wilson so entered the Polytechnic; and he said, having
observed Dr. Dillon sit down with his wife in a less frequented
part of the room, and having immediately recognised her, he
went up and said, " Good morning, Al a'am ; I hope you are better.
Mrs. Wilson and myself thought we should have had the plea-
sure of seeing you at Gadshill again before this. Your good
gentleman was at our house a short time since, and said he should
bring you down again, as he thought it benefited your health."
Now, it did appear to him, that was a rather singular mode of
addressing her, and it produced at least one fact, that this
gentleman—this unknown gentleman—who, as they found from
the other parts of the evidence, had been at the house subse-
quently, and as he thought pretty clear, many times before, though
still unknown, that he had used, according tothe statement of this
witness, an expression denoting his intention to revisit him.
But what said Dr. Dillon to that? Dr. Dillon and his wife
then stood up, and he questioned about what he had said to her,
addressing her by her Christian name, which he did not now
remember, "My dear," says he, " what does this mean ?
Your good gentleman—what does this mean ?" Why Dr.
Dillon knew all this ; he was perfectly cognisant of it ; he had
received the letter; he had seen Mr. and Mrs. Wilson. He could
not but say that what followed appeared like an arrangement
of identity. " What does this mean—your good gen-
tleman ?" Addressing me he said, " I are this
lady's good gentleman." Surely Mr. Wilson knew that before;
it was a very gratuitous piece of information. " I am her
husband—was it I who was with her. at your house?" Cer-
tainly that was a fact in his own knowledge. " I told him no,
and he proceeded to question me further as to his wife, and as
he was so doing Mrs. Dillon squeezed my arm. I con-
tinued, however. He appeared very much cut up, and
putting his hand •to his forehead he turned round."
Why if he had believed the witnesses before, certainly
it was somewhat singular that he should conduct him-
self in the manner stated. NOW, the reason why he ad-
verted to this was, because of the predicament in which the
Court was placed, vbere an individual undertook to conduct
his own ease. What it had a right to expect was, that some
person, whose integrity and impartiality could be re-
lied on, should have been employed in isifting these
witnesses ; on this occasion, there was only the
party himself. He must not, however, though very
much struck by the detail of the conversation, take a one-
sided view of this evidence. This was distinctly sworn by
Mr. Wilson, of whom he had already said that he knew no
reason why he should not be entitled to credit ; and it was a
fact of the greatest importance in this case, that Mrs. Dillon,
by urging him to silence, in effect admitted her identity; because
it was impossible, prima facie, that if she was utterly ignorant
of the whole of this transaction, hut that she should have
utterly disregarded all assertions to the contrary made by Mr.
Wilson; and certainly she would not have endeavoured to
silence him in the manner which had been deposed to by Mr.
Wilson himself.. It was a very strong circumstance, but it was
deposed to by a single witness alone, and corroborated by no
other. Now what occurred then? On this same 10th day of
May, the day of this very interview, Mr. Wilson came to Doc-
tors' Commons, and was examined by the clerk of the Proctor.
What occurred there? Mr. Wilson comes to Doctors'-com-
mons, and is examined by the clerk of the proctor. If all this
were done by previous arrangement it was most inconsistent
with all probability, and difficult to account for the surprise ex.
pressed oy Dr. Dillon at the interview ; he must have made
up his mind, and have spoken with the proctor. On the 10th
of May Dr. Dillon takes his wife home to her mother's at
Gravesend; on the 11th of May Dr. Dillon is again joined by
Mrs. Dillon, after her return from Gravesend, and the citation
is served in the presence of Mrs. Wilson and Dr. Dillon, a fact
almost urprecedented in the hiStory of that Court, and as soon as
it is served Mrs. Dillon walks away with Dr. Dillon. Other facts
show that there is nothing extraordinary in this evidence. After
the suit was commenced, it was proved that Dr. Dillon, while
the ease was going on, had two interviews with his wife, one
on the 3Ath or May, the other on the 4th of July. They took
place in the evening, and lasted no inconsiderable time; for
taking the fair medium between the witnesses, it appeared that
they lasted three or four hours, and did notterminate till twelve
at night. It appeared that they walked away arm in arm, and
the witness Page says they shook hands at parting. The con-
versation spoken of by Mis. Drury he should have paid more
attention to, had it been deposed to by more witnesses than
one; as it stood, he did not feel safe in relying
on the evidence of a single witness in this case,
in anything of this description. He should now consider what
bearing this evidence had on the fact of adultery. This was no
ordinary case, and in many respects the observations that ap-
plied to common cases did not apply to this one. His judgment
was not founded on any isolated part of the case, but on all the
circumstances combined. It was no ordinary case, because, as
lie had already observed, in a case where the husband sought to
be divorced on account of adultery from the wife whom he had
first seduced, he must expect to have his whole conduct visited
with a much more rigid scrutiny and investigation than
the conduct of a husband in ordinary cases. In such
circumstances the husband was bound to exercise par-
ticular vigilance ; he had paved the toad to her first fall,
and he ought to take care that he did not smooth the
path to her second. He had furnished no evidence as to their
criminal cohabitation ; use did not place much re:iance on the
evidence of the two servants, who deposed that he had often
expressed a wish to get rid of his wife. But it was fair to rely
on his own witness, who proved that he did not live on happy
terms with his wife, nor were circumstances wanting during
their union calculated to excite his vigilance. In the early
part of 1840, Dr. Dillon declared that they could not live toge-
ther much longer, from the violence of Mrs. Dillon and her
absenting herself from home. This fact considered, with
reference to their connexion before marriage, and the
disparity of years ought to have excited his attention
and have led him to take steps for the preservation of her
honour, but nothing whatever appears to have been done.
Nothing having been done, he did not think he Vtas expressing
himself too strongly when lie said that the absence of such due
precautions was a criminal neglect, and which, from the cir-
cumstances occurring before marriage, never ought to have been
lost sight of by him. The absence of all precautionary measures
might not alone determine the judgment of the Court, yet, it
would be an important ingredient combined with other circum-
stances. He had himself stated that he had often been written
to respecting the conduct of his wife, but he paid no attention
to the letters; he had received these warnings of danger,
and had totally disregarded them. And what did he
do after he had had his second interview with Mr. and Mrs.
Wilson? He continued to cohabit with his wife. If the
party accused, should
prove that the party proceeding had a
knowledge of the adultery, a rriminis sciontia, it was a bar to
the suit. Here the condonation was pleaded ; the husband had
received letters relating to the conduct of the wife ; it had been
proved that means of identification had been devised, he had
declared that the person implicated must have been his wife,
and yet he continued to cohabit with her. In the case of
" Elwys v. Elwyn," or rather the dictum of Lord Stowell upon
it, the condonation was not pleaded, as in the present ease, for
there was not the probabilis scientia. co the dictum
of Lord Stowell he was disposed to pay great
deference, and he says that in case a husband has some suspi-
cion, enough to satisfy his own mind, but not to instruct a
legal case, he
purpose of disceesein
g-
might perhaps continue cohabitation for the
the party. in the case of " Timmins v
Timmins," however, Lord Stowell expressed himself strongly
as to the necessity of the husband, thought condonation
was not pleaded, not having slept with his wife after
the fact of the adultery having come to his knowledge.
It was true that in the present case on the 9th of May Mr.
Wilson had not a personal interview with Dr. Dillon, yet the
Learned Judge could not but think that it was difficult for Dr.
Dillon to escape from one of two conclusions, either that Dr.
Dillon did not give credit to the story, or that he was very
reckless about cohabiting with her again, and the letter the
Learned Judge thought was the more probable. The Learned
Judge held that the principles laid down by the Court in cases
of adultery ought to be strictly attended to. Perhaps, in the
might not be inclined to hold, were
tesaetcase, he
circumstances the only ones with respect to Dr.
Dillon, they would bar his obtaining a divorce,
hut there were many other things to be looked to,
There could be no doubt whatever that if the interviews that
had taken place between the parties during the pendency of the
suit had come to the knowledge of the Court that it would not
theseire present
h a
have permitted the cave to proceed. None of those facts
ought to have been kept back from the Court in cases of adul-
tery. In former times great doubts were entertained whether
a solicitor would be justified in keeping back what he knew from
the knowledge of the Court, but it never could lie in the mouth
of the husband to say that he would afford no information to the