, 1874-02-14
ned On the stand, no doubt had great weight the
minds OF tue jury to discredt their evidence


4tu u14 6&aQQ, no Doubt nad great We1GAE On Tue
minds OF tue jury to discredit their evidence.
OTHER FACTS.
There were other facs in evidence in this that
far to eonvincs them thst The tha intimate relatons
existing between the defendant aud Thompson
were not Of criminal character. It was proven that
for number Of years the Blake and Thompson fanl-
lies bad been on very friendly and intimate terms.
In 1860. complainant and bis wife went on . tour
1S5s g0ns IN Of II be
cons. Complainant entrusted Thompson with tue
payment Of his taxes his Wiunetka property. On
their return Thompson was presented with cane cut
by Blake in the South. Thompson aud hjH wife frc-
quenty dncd ut BIakes residence with Blake and his
family, and Blake in bis ey1ence, doea not deny tie
fact that Sunday before Blake drove his wife from
his home, Thompson and his wife dined with
complainant ut his residence These things shown
1868, complainant was suspicious that Thompson aud
his wife were committing adultery.
WHAT Is PROOF or ADULTERY.
It is insisted by appellant tAAt the circumstances
proven amply sufficient to estahlish the fact that
adultery wns committed. There can bs no doubt but
adultery may he established by ei5eunstantisl eyi-
61s, " mutt convince the judicial mind athrmatire1y
TINT actual adultery was committed, since nothing
ehort Of the ca1nal act can ly foundation for III
gorce."
We have been referred By the solicitors for COM
n!anant TO ~ @ opinion delivered by chiet-Justice
rs good authority by bishop IN tie second volume Of
Lis work on !. Marriage aud Diyorcc,o Sec. GIs, ~
bsng directly il pont in ths ease IN Which
l4y down beforehand, IN the form Of a
rule, what circumstances shall, and what
s1a net constitute satisfactory proof Of the act
such proof not, they modified and Influenced
hy ditcreut circumstances. Suppose for instance,
married woman had been shown by uudoubted proof
her husband, Leading to suspicion Of the fact. II it
was proved TINT she had previously shown unwar-
rantub!e predilecuou for that II they had been
detected in clandestine correspondence had sought
s,o.en Interviews made passionate declarations; II
her affection for her husband had been aHcnated II
were shown that the mind and heart were already
deIrayed, and nothing remained wanting but OPP
Ioltuny to consummase the guilty purpose, then proof
that such opportunity had occurred would lead to the
satisfactory conclusion that the act had been commit
ted. Eut whtu these circumstances IRE wanting,
when there has been no previous u1awarrantablo or
indecent intimacy between such parties, tLadestie
correspondence etocn or secret Interviews the fact
Ut opportunity and cquivocai appearances would has
y raiee passing cloud Of suspicion over the far fame
oi such Woman.h
DEFICIENCY OF rv1pEScE.
Under the rules lid down III that Csc, the evidence
IN tLis, in several respects, Is very deficient. No
clandestine correspondence Is shown not EinGle
word expression s proved to have teen uttered by
defendant, showing her attachment to Thompson no
sign token Of aAaeon is ahown to exist: The rides
aud walks taken by them, far pruof is concrncd
to be destitute OF the characteristics which would
lead jury to the conclusion that adultery
had been committed where the opportunity existed
It il exceedingly important for the yscll-beng Of
society that check should be placed upon the ten
dency Of the age to the marriage relations, mud
the result Of The verdict sought to be obtained will
publish defendant 10 tho world as prostitute, aud
brand tho children Of complainant IS the descendants
Ut an unchaste woman
he are not, therefore, upon careful consideration
Of al tho testimony, prepared to Say the verdict Is
against the weight OF the evidence
INSTRUCTIONS.
It In insisted by the solicitors Tor complainant that
The Court erred IN refusing to give bis fth seventh,
ninth. fourteenth, and fifteenth instructions.
The substance Of The Afth and seventh instructions
s embraced i'll complanant's first, which given.
The ninth ,vas substantially like the sixth, which
Tue fourteenth was properly refused for the reason
hat the record does show the evidence OF Huxon
md his and Alillard Was Withdrawn from the
alteration Of the jury.
The fifteenth was not proper, for there Was no oy1-
!cnce on which to base it. Ne perceive error in
yeu for complainant and defendant, Hlca considered
ogc,her fairly presented tha law applicable to tho
ury.
THE NEW TRIAL.
The next point relied upon Is that the Court erred IN
lot granting new trial on the ground Of newly-dis-
oFerel evidence.
ought to be produced is that OF Dr. Turner and wife,
tho Bwesr that tho defendant wrote Or. Turner let
er in which she aduitted she had committed
is Office, aud also ut Lake View,
nd th2s subsequently, In conversation at the St.
amos Hotel In Chicago she admitted substantially the
stnc The letter rurportng to contain these atirs-
Ions Is not produced, although other lettera written
y the defendant to DR.. Turner are shown.
It appcars that this Dr. Turner had informed the |
efenGan that he could produce evidence to show the
guilty Of adultery, and that he
loyed for that purpose and acted eome time in that
1racity; that finally there Was misunderstanding
etween him and defendant in regard to the psy he ]
lould receive. number Of letters passed between
lem, which show very clearly that al Turner |
fer money the result Of which WAS, Turner not
aytng realized much from the defendant AZ he e1
ccted after the trial over, he tura up in COM
lunication with the complainant, and, AZ near *e
II understand from tho lette.a and aQidavits tled
fopcses to sell cut and swear on the other side Of the
lse.
NEW TRIAL NOT GRANTED.
There two rrasuls, either Of which ample to
lstlfy the Court i'll orer-ruiug the motion for
i'll,
F,rst-This testimony sought to he produced was
crely cumulative.
aecond-Ihe evidence Of these Turner's sought to be
reduced is shown by tha facts contained in this
cord TO 1e unreliable and utterly unworthy Of credit.
party who will espolse ono side Of the cause as did
esa Turner's aud work IN the interest Of that side,
they have done, and then turn up the other side
ID betray the confidence reposed in them, and TX
Lit confidential letters and contracts US they did,
uld not, and should not, be believed by any honest
ny IN the 1aud.
The 1nst point relied uron s the amount allowed for
licitors Of the defendant is exorbitant #
It appears that 81 600 have a1ready been paid by
1nrlaiuant for solicitors fees Of the defendant. The
,rt in addition to that sum- docroed that the corn
ainant should, within thirty days, pay additional
III Of sc, coo.
We are satisfied that the allowance ia too much
lille It is true that there has been largo amount Of
in the defense Of the cause, yet 1t has been per
r1ued chiefly by solicitor, and We 1re inclined to |
opinion that g. 900 ought to bo regarded reason-
lc compensation. That portion Of the decree will, I
erefore, he modified that the amount to be paid,
C % vas rendered, shal be sl,oco. u III oher m re- re-
acts the decree will be affirmed.
=. TEE DISSENTING OPINION