The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-01-06
m. Ncxv unvcn Divorce C.se.

/
THE PROPERTY GIVEN HER.
This case has been under my attention long, and
have. 10 commence the trial OF another another
place 70 morrow have concluded TO decide it
will not 60 into details but will give merely the results.
AS has been correctly stated TINS petition for DIVORCE
brought by Mary A. Bennett against George Bennett,
charging him with the commission of of the
monia offences which the statute Of this State renders
sufficient the granting OF petitions Of this kind
The first offence charged is ntoerabc cruelty and the
other such misconduct as destroys the happiness Of
oner and defeats purposes OF the marriage relation
place. that these allegations are not true he also sets up
that the acts committed ny INN ave beer been con,
| the commencement Of this petition nc parties have
cohabited together as husband and wife: also tina.
| petitioner herself has been guilty # all the viola
lions of duty charged upon him. that SIN has been guilty
of such misconduct destroys his happiness and defeats
the purposes Of the marriage relation The reply the
part of the petitioner is, in the first place. firm
ing allegations in the petition and denying any condona
ton, and alleging that the cohabtation vas from coercion
dent has guilty Of other misconduc This replication
raversed denied on part of the respondent The evil
dence to facts set up by Dr. in hisanswer, under
stood while this petition was trial. might be applied
either to the petition of Mrs the petition of Dr. B.
asking divorce from her. that both nay be considered
as on trial In relation 70 the law Of this which
my attention has been called before tie year lS43 no d.
in Connecticut could be granted r the here
in these petitions As early as DC7 the Legislature
Connecticut made provisions for divorces from the bonds
matrimony in the act then passed. almost two hun
dred years ago. provided that divorces might be grant
ed for adultery wul absence with tdal neglect OF duty
for three years. years absence IHheard Of and for
1s43, when, in consequence Of the numerous applca
lions made to the Legislature, and f the trouble and
expense of applying to that body law passed. adding
two other matrimonial Offences, for which courts could
grant divorces namely habtual ntemerance and inole
rable cruelty. These causes, II was then thought, EN-
br aced nearly all the Of dvorcetor which petitions
would be brought but in ls45 the Supreme Court Of
Errors construed the language Of the statute, into
lerabe cruelty as to disappoint man members of the
profession and to crcumscrbe the OPERATION Of the law
The decided the Of Shawvs Shaw, in which
the say that the cruelty must beo such character
as to be intolerabc and not 10 be b0ne The courts in
Great Britain have defined legal cruelty to be such
endangers the life health OF the paty These courts
say that words cannot amount 10 legal cruelty. had
occasion last examine this ubect very cri
caly and at great length IN case had at Hartford
examined the English authorities in these cases, and
| found from compilation Of them TINT the facts more
generally adduced first persona i'll treatment such
blows or bodily injury secondly, threats of such dc
scrpton would excite the mind of personal
danger excluding all words of contuuacy and reproach
The first question in this is this Has the petitioner
proved bot responder, has inflicted upon her blows or
bodily injury, threats Of such description as to excite
fear OF personal injury? cannot Sc into this body of
facts which listened to for twenty lays, and which
have coated with great 1t is sufficient to Unjust
answer the question 10 the affirmative think l must
find the first question in the afrmatiw-that the respon
dent has inflicted blows and that he las used threats to-
wards her of character to excite fears or bodily harm
might aude to the which took place the presence
of the brother Of defendant when tint brother felt called
violence. The Legislature, in l.i9, added still
| further to the list of criminal oiences so as to
make the law more nearly correspond with the
OF those who had been engaged the passage of the
law of 1S43. In 1S49 this provision was inserted.
This misconduct in my Judgment provided for by the law
of S49 consists of Of annoyance which do amount
TO intoierabe cruey-such IS aspefities Of temper, n
duging in violent bursts Of passion words Of abuse and
reproach, scoding and various acts T unkndness and
neglect Of those attentions due to married life the innu
merabe anDoyances which sometimes resored to by
define it; the statute defines itself would say here that
do entertain but repudate the ea that the Superior
Court has jurisdiction upon everything in reference TO
divorce which the Legislature might pass upon But the
court when called upon must find sch facts as will salts
rage relations are defeated and he happiness Of the
petitioner destroyed. When these facts are found the
STy Of the court, is plain II this case have no
will not allude to the evideIce, because do not
deem It to 60 though 1sos almost thou
found the petitioner would be entitled TO divorce there
nothing else in the case But the respondent says
these acts have coudoned Condonaton the books
all say, OF the mind and literally means forgive
| ness. 1t is nothing else. matrimonial offence is con-
doned when the party offending has been forgiven by the
| party aggrieved. 1t may be expressed or implied. II
| expressed there can be no doubt When implied, there
may be much doubt We have already, in Connecticut,
decided that the crime Of adultery may be condoned.
the wife cohabs, knowingly having probable means
knowledge of the commission OF the crime she have
no that There has been considerable
roversy this country and England whether cruelty
can be condoned, but we'll settled that 1t be,
the same as os But mot he % sS S9
and for very good reason. Suci cohabtation
may be voluntary, or may not be forced or
audulenty brought about by the husband and whether
such connubia acts act as bar must depend on the
circumstances of each Is there evidence enough to
satisfy the mind of the trier that the party offended has
forgiven the ofcnceS If such conduct may be condoned,
think that any Of the causes for offence may be con-
| honcd-any of the matrimonial offences when the party
fairly, voluntarily and undersandiugy fTgves the other
party Here there one act Of condolement on the
23d Of August 1855. The contract then made, expressed
in what the law implies. To every c3ndonaton the
attaches the condition that like offences shall not be
repeated and that the orgvng party sha be thereafter
| treated with continual kndness-not merely that the
crime Of adultery will not be committed, Tut that he will
treat bis wife well in all other respects One case has
been decided England--I have forgoei the name Of
tin which has been held that not only condoned adul-
terry may be revived by cruelty, but bycruelty not of
Itself authorizing separation from bel and board.
| While it is held that these acts OF condonation
! apply to every matrimonial offence, the courts
also hold that the iorgving parry must be
treated with uniform kindness; any AFT OF cruelty
and unkindness destroys the condonaon and then suit
may be brought for the original cause of action must
confess that the evidence strongly such flat all the acts
done by Mr. Bennett toward his wife have been revived
by his subsequent misconduct thereon think so far
the acts of condonaon concerned they may be all
left out am bound 10 find from the evidence that the
cohabitaton since the petition was brought was in the
language of the repicaion from necessity and coercion
As she could get away she went AID she says
and there is nothing to detract from t-tat she was
driven from her husband by his unkind ac But it has
been said that the petitioner has committed some matri-
monal offences which sufficient prevent her from
sustaining her petition and this brings up tie question Of
compensation recrmlnation There is question Of some
little Importance TO be settled that will have be settled
by and by, whether is competent for party to set up
one kind Of matrimonial offence as bar TO another kind
whether be can set up adultery as bar to another and
distinct matrimonial offence II s not necessary Tor me to
decide 1t. That it s competent for the party 10 set up
recrmination Gin kind" entertain dDubt. If he
charges her with adultery he may say $50 have you
the charge be for ntolerabe cruelty she may make the
same. This upon the genera, principle, which Is well
settled that cannot obtain legal redress for wrongs
unless he is free from the wrong about which he COM
plains If he complains he must be free fomfault on the
same point In Missouri where their statue Is different
from ours II has been decided that ofnce may be
by way Of recrmination against anotherof different
kind IN Pennsylvania they have decided that It cannot.
These the only two where the subject has been
|
misconduct to defeat the purposes Of the marriage re-
atonY This involves the question whether the petition
the part OF respondent should be granted must say
here, that am compelled TO give negative answer.
find by all the facts that che has not been guilty
| of sucn misconduct as destroys the happiness oil
the petitioner but | am sensible here that some
| Of the witnessts have sworn to facts which, u
true, prove most concusvey, and should be Obliged
10 find, If believed the witnesses; but do not be-
eve the wnesses The story Of these witnesses, IN their
most material parts, are conadcted In some instances
they proved to be incorrect In others they are 700