Bailey v. Bailey

29 A. 847, 67 N.H. 402

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1892
• Status: Published

Opinion

Chase, J.

The evidence was sufficient to support the finding -of connivance by the plaintiff at the defendant’s adultery with his brother. It tends to show that he assented to the act, and passively, if not actively, aided in its accomplishment. 2 Bish. Mar. & Div., ss. 4 et seq.; Morrison v. Morrison, 136 Mass. 310. This finding defeated the plaintiff’s claim to a divorce on account of that adultery. Masten v. Masten, 15 N. H. 159, 161. But it is no answer to the claim founded on the act of adultery committed with Gray nearly three years earlier. Woodward v. Woodward, 41 N. J. Eq. 224; Morrison v. Morrison, 142 Mass. 361. The connivance proved could have had no influence in causing that act. It had no tendency to show that the plaintiff assented to that intercourse, or that he unreasonably exposed his wife to temptation at that time. As the plaintiff, while he cohabited with his wife, had no knowledge of this adultery, but only a suspicion of her infidelity, such cohabitation was not a condonation of the wrong. Quincy v. Quincy, 10 N. H. 272. The defence of recrimination also fails, because the acts proved in support of it would not amount to causes of divorce in favor of the defendant if she were innocent and the complaining party. P. S., c. 175, s. 5, pp. III, VIII; 2 Bish. Mar. & Div., ss. 78 et seq.; Hall v. Hall, 4 Allen 39, 40; Clapp v. Clapp, 97 Mass. 531; Cumming v. Cumming, 135 Mass. 386, 389. While his conduct might have justified her leaving him (Lyster v. Lyster, 111 Mass. 327), it did not justify or excuse her adultery. Morrison v. Morrison, 142 Mass. 361. The plaintiff is entitled to a divorce for the defendant’s adultery with Gray.

Exception sustained ; divorce decreed.

Smith, J., did not sit: the others concurred.