The Chancellor,
If the testimony produced before the master was legal evidence to prove the fact of adultery, the complainant undoubtedly succeeded in showing that the defendant was guilty of the adultery charged as having occurred previous to her return from England, in November, 1830. The parties came to reside in this state in 1825; and they were both inhabitants of the state from that time till August, 1831, notwithstanding the temporary absence of the wife, on a visit to her father, in the summer and fall of 1830. This would have been sufficient to give the court jurisdiction of the case, if a proper averment to that effect had been contained in the bill, whether the adultery was committed here or elsewhere. The residence of the husband is presumed to be the legal residence of the wife until the contrary is shown. And as the complainant returned to this state with her husband in the spring of 1832, where he has continued to reside from [468]*468that time, the legal presumption is, that she was an inhabitant of this state at the time of filing her bill, a few months after such return. I am also satisfied, from the fact of the husband’s residence here, that the adultery, if any, must have been committed within this state. I am inclined to think, however, that the master was wrong in supposing that there was any legal evidence before him, independent of the mere confessions of the defendant, to show that any adultery had been committed. Although Captain Allen swears he has himself had some personal experience on the subject of a particular disease and as to the appropriate remedies therefor, I do not think his testimony was sufficient to establish the fact that the defendant was laboring under the effects of that disease, on the outward voyage, in the summer of 1831. And the confessions of the defendant, as to his guilt, appear to have been made in a fit of jealousy, and probably with a view to induce his wife to seek a separation. . The testimony of Smith, the physician, as to what he discovered and was informed of when he was consulted by the defendant, professionally, in 1830, was illegal and improper, and ought not to have been received. By the revised statutes, a physician is not only excused, but prohibited, as a witness, from disclosing information which he has acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient. (2 R. S. 406.) From the testimony, as reported by the master, I infer that Dr.- Smith at first declined answering as to what he had thus discovered when consulted in his capacity of physician. But on being told by the master that he was obliged to make the disclosure, he submitted to what he supposed to be a legal duty. Indeed, it is expressly stated in the brief of the complainant’s counsel, which was handed up to the court in this case, that the physician declined making any disclosure as to the disease under which the defendant was laboring, until he was compelled by the master to answer. The master mistook the law on this subject. And the testimony being thus obtained in direct violation of this statutory provision, it should be rejected, or laid entirely out of consideration, in de[469]*469elding whether the adultery charged in the complainant’s bill is established by the proofs.
I have recently had occasion to say that this court will in no case dissolve a marriage, if it appears upon the pleadings, or proofs, properly taken, that the injured party, with a full knowledge of the facts, has forgiven the injury. And a voluntary cohabitation is legal evidence of such condonation or forgiveness. In this case there was no proof whatever to establish any act of adultery after the returnof the complainant from England, in 1830. And she having stated in the bill, and sworn to the same, that she ascertained the fact of his guilt on her return at that time, and that she had not voluntarily cohabited with him afterwards, it became the duty of the master, under the order of reference, to inquire into those facts, as well as all other matters stated in the bill. The eviidence of condonation was, therefore, properly before the court upon the report of the master. That evidence falsified the allegation in the bill that the complainant had not voluntarily cohabited with the defendant subsequent to 1830. It also contradicted the affidavit which must have been made, in conformity with the provisions of the 165th rule, to obtain the usual order of reference. The testimony of the master of the packet shows that there was a continued marital cohabitation between the complainant and her husband while they resided in England, in the latter part of 1831 and the beginning of 1832; and even after they started on their return to this country. It may also be remarked, that during the residence of the parties in England, the excuse of the complainant, that sha was compelled to reside and cohabit with her husband, from necessity, because she was among strangers and at a great distance from her relatives and friends, no longer existed. That a condonation of the offence by the reconciliation of the parties, or a subsequent cohabitation with a full knowledge of the facts by the injured party, is a bar to a divorce for adultery, is not only recognized by our statute, but by the laws of most- civilized countries. (Poynter’s Mar. & Div. 231. Code Nap. Art. 272. Van Leeuw. Rom. Dutch Law, 84. Oughton, tit. 214. Civil Code of Louis. Art. 149.) It is evident, therefore, that when these parties started from [470]*470Liverpool on their return to the United States, in the spring of 1832, the complainant could not have sustained a bill for a divorce on account of any adultery committed by her- husband before that time, and of which she had full knowledge previous to such voluntary cohabitation. The vice chancellor arrived at a correct conclusion on this point; but he granted a divorce on the ground of a revival of the supposed adultery, by the subsequent acts of unkindness of the defendant, towards his wife, during the voyage from England to this . country. It remains, .therefore, to be considered whether the defendant was guilty of any misconduct during that time, which could have the legal effect to revive a condoned adultery, so as to entitle the complainant to a divorce.
It is settled in the ecclesiastial courts of England that con-donation is but a conditional forgiveness, and that a repetition of the offence revives the condoned adultery. The same principle was recently recognized in this court in the case of Smith v. Smith, (Ante, 434.) The English couris, however, have gone still further, and have held that to revive condoned adultery, it was not necessary that the new injury should be of the same nature ; but that cruelty, desertion, or other improper conduct of the husband towards-his wife, was sufficient for that purpose. In following this principle of the ecclesiastical courts in England, I apprehend the vice chancellor has not sufficiently1 considered the distinction which exists between the laws of this country and of that as to the legal consequences of a conviction for adultery. The ecclesiastical courts in England-have followed the canons of the Romish Church, in holding that the bonds of matrimony upon a legal marriage are indissoluble; and that no absolute divorce can be granted, even for adultery.
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The Chancellor,
If the testimony produced before the master was legal evidence to prove the fact of adultery, the complainant undoubtedly succeeded in showing that the defendant was guilty of the adultery charged as having occurred previous to her return from England, in November, 1830. The parties came to reside in this state in 1825; and they were both inhabitants of the state from that time till August, 1831, notwithstanding the temporary absence of the wife, on a visit to her father, in the summer and fall of 1830. This would have been sufficient to give the court jurisdiction of the case, if a proper averment to that effect had been contained in the bill, whether the adultery was committed here or elsewhere. The residence of the husband is presumed to be the legal residence of the wife until the contrary is shown. And as the complainant returned to this state with her husband in the spring of 1832, where he has continued to reside from [468]*468that time, the legal presumption is, that she was an inhabitant of this state at the time of filing her bill, a few months after such return. I am also satisfied, from the fact of the husband’s residence here, that the adultery, if any, must have been committed within this state. I am inclined to think, however, that the master was wrong in supposing that there was any legal evidence before him, independent of the mere confessions of the defendant, to show that any adultery had been committed. Although Captain Allen swears he has himself had some personal experience on the subject of a particular disease and as to the appropriate remedies therefor, I do not think his testimony was sufficient to establish the fact that the defendant was laboring under the effects of that disease, on the outward voyage, in the summer of 1831. And the confessions of the defendant, as to his guilt, appear to have been made in a fit of jealousy, and probably with a view to induce his wife to seek a separation. . The testimony of Smith, the physician, as to what he discovered and was informed of when he was consulted by the defendant, professionally, in 1830, was illegal and improper, and ought not to have been received. By the revised statutes, a physician is not only excused, but prohibited, as a witness, from disclosing information which he has acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient. (2 R. S. 406.) From the testimony, as reported by the master, I infer that Dr.- Smith at first declined answering as to what he had thus discovered when consulted in his capacity of physician. But on being told by the master that he was obliged to make the disclosure, he submitted to what he supposed to be a legal duty. Indeed, it is expressly stated in the brief of the complainant’s counsel, which was handed up to the court in this case, that the physician declined making any disclosure as to the disease under which the defendant was laboring, until he was compelled by the master to answer. The master mistook the law on this subject. And the testimony being thus obtained in direct violation of this statutory provision, it should be rejected, or laid entirely out of consideration, in de[469]*469elding whether the adultery charged in the complainant’s bill is established by the proofs.
I have recently had occasion to say that this court will in no case dissolve a marriage, if it appears upon the pleadings, or proofs, properly taken, that the injured party, with a full knowledge of the facts, has forgiven the injury. And a voluntary cohabitation is legal evidence of such condonation or forgiveness. In this case there was no proof whatever to establish any act of adultery after the returnof the complainant from England, in 1830. And she having stated in the bill, and sworn to the same, that she ascertained the fact of his guilt on her return at that time, and that she had not voluntarily cohabited with him afterwards, it became the duty of the master, under the order of reference, to inquire into those facts, as well as all other matters stated in the bill. The eviidence of condonation was, therefore, properly before the court upon the report of the master. That evidence falsified the allegation in the bill that the complainant had not voluntarily cohabited with the defendant subsequent to 1830. It also contradicted the affidavit which must have been made, in conformity with the provisions of the 165th rule, to obtain the usual order of reference. The testimony of the master of the packet shows that there was a continued marital cohabitation between the complainant and her husband while they resided in England, in the latter part of 1831 and the beginning of 1832; and even after they started on their return to this country. It may also be remarked, that during the residence of the parties in England, the excuse of the complainant, that sha was compelled to reside and cohabit with her husband, from necessity, because she was among strangers and at a great distance from her relatives and friends, no longer existed. That a condonation of the offence by the reconciliation of the parties, or a subsequent cohabitation with a full knowledge of the facts by the injured party, is a bar to a divorce for adultery, is not only recognized by our statute, but by the laws of most- civilized countries. (Poynter’s Mar. & Div. 231. Code Nap. Art. 272. Van Leeuw. Rom. Dutch Law, 84. Oughton, tit. 214. Civil Code of Louis. Art. 149.) It is evident, therefore, that when these parties started from [470]*470Liverpool on their return to the United States, in the spring of 1832, the complainant could not have sustained a bill for a divorce on account of any adultery committed by her- husband before that time, and of which she had full knowledge previous to such voluntary cohabitation. The vice chancellor arrived at a correct conclusion on this point; but he granted a divorce on the ground of a revival of the supposed adultery, by the subsequent acts of unkindness of the defendant, towards his wife, during the voyage from England to this . country. It remains, .therefore, to be considered whether the defendant was guilty of any misconduct during that time, which could have the legal effect to revive a condoned adultery, so as to entitle the complainant to a divorce.
It is settled in the ecclesiastial courts of England that con-donation is but a conditional forgiveness, and that a repetition of the offence revives the condoned adultery. The same principle was recently recognized in this court in the case of Smith v. Smith, (Ante, 434.) The English couris, however, have gone still further, and have held that to revive condoned adultery, it was not necessary that the new injury should be of the same nature ; but that cruelty, desertion, or other improper conduct of the husband towards-his wife, was sufficient for that purpose. In following this principle of the ecclesiastical courts in England, I apprehend the vice chancellor has not sufficiently1 considered the distinction which exists between the laws of this country and of that as to the legal consequences of a conviction for adultery. The ecclesiastical courts in England-have followed the canons of the Romish Church, in holding that the bonds of matrimony upon a legal marriage are indissoluble; and that no absolute divorce can be granted, even for adultery. As the consequences of a conviction for cruel .treatment or for adultery are the same by,the laws of that country, it is not surprising that their courts should consider the forgiveness of the injured party as subject to the implied condition that the other party should not again be guilty of the same offence, or of an of-fence involving similar consequences. In this state, however, we have followed the ancient law of Holland, in permitting an absolute divorce, in favor of the injured party, in cases of [471]*471adultery; and granting a qualified divorce, or separation from bed and board, merely, for cruelty or other misconduct. (Van Leeuwen's Com. 85, § 3.) The Napoleon Code declares the injured party incapable of pursuing an action for a divorce, after a condonation of the offence; but it permits a suit to be instituted for cause accruing subsequent to the reconciliation, and then allows the former causes of divorce to be employed in support of such new action. (Code Nap. Art. 273.) The same law, substantially, exists in our sister state of Louisiana. (Civil Code of Louis. Art. 150.) And by the law of Scotland, if the injured party continues the matrimonial connexion after knowledge of the adultery, that is held to be an irrevocable forgiveness of the offence; and an act of adultery so overlooked, cannot afterwards be the foundation of a process for a divorce. (1 Bell's Dict. of the Law of Scot. Art. Divorce.) Upon principle, I am satisfied it would be carrying the doctrine of revival, by subsequent misconduct of the offending party, too .far, to permit a suit to be instituted for a condoned adultery, unless it was founded upon a subsequent offence of the like character. It may be said that the principle of revival is useless, if it can only be applied upon the commission of a new of-fence of the like nature, which would of itself entitle the injured party to a divorce. There may be cases, however, in which this court would only have jurisdiction to decree a divorce for the original offence, which had once been forgiven on the implied condition that it should not again be repeated. In such cases a subsequent offence of the same nature, although committed out of the jurisdiction of the court, and while the parties were not residents of this state, might be sufficient to revive the condoned adultery so as to entitle the injured party to a divorce for such original offence. And where the new offence is of itself sufficient, if duly established, to sustain the suit, the complainant might also, as in France and Louisiana, make use of the fact of the former misconduct of the defendant in support or corroboration of the suit for the new offence.
Even if the vice chancellor was right in supposing that the doctrine of the ecclesiastical courts in England was to be re[472]*472cognized here, in its fullest extent, I am inclined to think there were not sufficient grounds in this case for considering the supposed adultery as revived. And from the testimony of her own Witness, I cannot say that the complainant’s conduct, on the return voyage from England, was wholly free from censure. After the positive declaration of Captain Allen, on oath, that the defendant’s charge against him, of an illicit intercourse with the complainant, was unfounded, it would probably be too much to say that the defendant had any just grounds for charging his wife with such illicit intercourse. Yet from the .testimony of Allen, it is very evident that the defendant was actually jealous of the witness’ attention to his wife, both before and after they sailed from Liverpool; and that some of the other passengers also thought such attentions to a married woman were improper. The conduct of the husband, during the voyage, may therefore fairly be considered as the natural result of the suspicions he entertained, occasioned by the indiscretion of the complainant in permitting herself to receive such attentions from Captain Allen, when she must have seen the effects they were producing upon the mind of her husband, and the suspicions which were created even among her fellow passengers. The nature of those attentions may be inferred from the fact sworn to by Allen, that one of his passengers told him that if any man was as attentive to his wife he would blow his brains out.
Upon the whole, I am satisfied that this was not a proper •case for a divorce, under the statute of this state. That, in the first place, there was no legal evidence to establish the fact that an adultery had been committed. And, if it had been committed, that the suit for a divorce was barred by the subsequent condonation of the offence. The decree of the vice chancellor must therefore be reversed j and the complainant’s bill is dismissed,