The following opinions were delivered:
By Chief Justice Savage.No objection was made before the master by the defendant, to the testimony of the physician. From his deposition it appears that he had been informed that he was bound to testify, but it does not appear that the master decided that question: As the testimony appears upon the report of the master, it must be considered competent and legal. The statute, 2 R. S. 406, § 73, declares that no physician shall be allowed to disclose any information which he may have acquired in attending any patient in a professional character, which information was necessary to .enable him to prescribe for such patient as a physician, or do any act for him as a surgeon. Had the testimony of Dr. Smith on this point been objected to by the defendant, he ought not to have been allowed to testify. The privilege is undoubtedly that of the party, and not of the witness. It is like the ease of an attorney in that respect. 1 Phil. Ev. 108. 1 Stark. 104. If the *642party waives his privilege, the witness may be examined. 1 Phil. Ev. 108. But if this testimony were excluded, the testimony of the captain of the packet, to the same point, seems to be satisfactory. The fact of the defendant having the venereal disease so long after matrimony is prima facie evidence of adultery. Popkin v. Popkin, 1 Hagg. 767. North v. North, 5 Mass. R. 320. The admission of the party is not sufficient alone; and the reason why it is not received as sufficient is to prevent collusion. From the manner in which this cause is defended there is no ground to suspect collusion; any admissions, therefore, which were made by the husband, which were legally admissible, may safely receive their full weight. Indeed, the sufficiency of the testimony seems not to have been seriously questioned in the courts below, as the main question was whether there had not been a condonation of the offence which barred the action. It was upon that ground, and that alone, that the decree of the vice chancellor was reversed.
It is a settled principle upon this subject, that if the injured party subsequently to the adultery cohabits with the other, after just grounds of belief of the fact, it is in judgment of law a remission of the offence, and a bar to the divorce. 2 Kent’s Comm. 101. This principle has been incorporated into our revised statutes, which enact that although the fact of adultery be established, the court may deny a divorce in several cases ; one of which is, when the offence shall, have been forgiven by the injured party, and such forgiveness be established by express proof, or by the voluntary cohabitation of the parties, with the knowledge of the fact. 2 R. S. 145, § 42, sub. 2. This enactment of the revised statutes has not altered the law. Condonation, or forgiveness of the offence, has always been a good bar. 1 Johns. Ch. R. 492. 6 Mass. R. 147. The legislature have mprely made statute law of what was before an established rule of our law on that subject. The doctrine of con-donation, with its qualifications, is to be found in the ecclesiastical courts of Great Britain, as those courts in that country have exclusive jurisdiction of cases of divorce. The cases on this subject have been referred to in the opinions of both the vice chancellor and chancellor. As to the true English doctrine, those learned jurists do not differ, but only as *643to its application in this state. I shall not cite all the cases on the subject, but content myself with a few. In the case of Durant v. Durant, I Haggard's Ecc. R. 733, the wife had twice returned to her husband, after knowing of his adultery, and leaving him for that cause ; once upon promises of future good conduct, and the second time from want of means of subsistence near the time of her confinement. She continued then with her husband six years, and until he turned her out of doors. After an able argument, the case was decided by Sir John Nichol, who, in discussing the doctrine of condonation says, that all the authorities say that it is not so readily presumed as a bar against the wife as against the husband; forgiveness, with’ hope of reclaiming her husband, is meritorious. It is always accompanied with an implied condition, which is, that the injury shall not be repeated. A repetition of it revives the former injury. In such cases less clear proof will be sufficient to revive the condoned offence than would have been required to convict in the first instance ; for if the same proof were required, it is evident that the rule of revival becomes useless. If the wife must produce entirely satisfactory proof of the repetition of the offence, she might rely upon that, and that alone, to entitle her to a divorce; and all allusion to the condoned offence would be useless. Thus, in this instance, I apprehend the evidence of the witness who found the defendant in a public theatre, in company with prostitutes, in that . part of the theatre set apart, as was said, for their accommodation, was at least prima facie evidence that he had returned to his former lascivious habits and associations, and should be held sufficient, if "necessary, as a waiver of the condonation of his wife. Upon this ground I am of opinion that the condonation of the wife, in this case, should not bar her of her action. But it is not necessary to rely upon this ground. The good sense of the implied condition which accompanies condonation is, that the offending husband shall not only abstain from adultery, but shall in future treat his wife with conjugal kindness. Hence, cruelty is a breach of the condition and revives adultery. Worely v. Worely, 1 Haggard, 734. In that case a reconciliation had taken place after adultery, and no new acts of adultery, but acts of *644cruelty were shown ; the court held that new acts of cruelty revived not only former acts of cruelty, but also former adultery. The same doctrine that facts of cruelty will revive adultery, though they would not support an original suit for cruelty, was also sustained in the case of D’Anguilar v. D’Anguilar, 1 Haggard, 764.
I will not multiply cases, because it is not disputed that such is the law in that country, from which it has been transplanted into our code. But it is contended that a difference is found in the laws of the two countries, as to the consequences of the offences of cruelty and of adultery, in the relations of husband and wife. In England the divorce is the same, to wit, from bed and board only, for either cause ; while in this state they are different. The wife here being entitled to a divorce a mensa et thorn, only on the ground of cruelty, whilst for adultery she may be divorced a vinculo matrimonii. In my judgment this can make no difference. We suppose the husband has been guilty of an offence against his wife for which she has a right to obtain a divorce. She afterwards cohabits with him. By doing so she virtually says, “ I forgive you this offence, upon condition not only that you shall not repeat the offence, but upon the further condition that you shall hereafter treat me with conjugal kindness.” This is the condition implied by law, and for our present purpose is the real agreement, as much so as if it had been expressed, or even reduced to writing. If then the condition be subsequently broken^ is she not entitled to the penalty, whatever that penalty may be ? Is she not entitled to be remitted to her former right of action, without reference to the nature of the judgment which shall be rendered in her favor ? If condonation" is a part of our law, and if the implied condition is such as I have stated it, (and neither proposition is denied,) then it necessarily follows that by a breach of that condition both partiés are placed in the same situation as before the condonation. The effect of the condonation is destroyed by the breach of the condition, and the parties are in statu quo—remitted to their former rights and liabilities. In an anonymous case found in 6 Mass. R. 147, Ch. J. Parsons cites the rule of condonation by the husband from Burns’ Eccl. Law, tit. Marriage, *645§ 11, Divorce, that subsequent cohabitation, with knowledge, is an absolute remission of the offence. It had been insisted, in argument, that the rule was confined to cases where the adultery of the wife was cause of separation from bed and board only, and was not applicable, where a dissolution of the marriage was the consequence. But the chief justice said that it was an an ancient rule on the subject of divorces, and existed in England, when adultery was a cause of divorce a vinculo. Such it anciently was, and so continued until the 44th Eliz., when, in the star chamber, the archbishop and his divines held that it was cause of divorce a mensa et thoro only. Moore, 684. If the rule in England was then as now, conditional, and the condition then was as it now is, it will be seen that it embraces this case. Adultery was then a ground of divorce a vinculo; crueltj revived condoned adultery, and justified a divorce in such i case. The rule, says Chief Justice Parsons, ought to be received, because it is founded on sound reason and natural equity. Th j condition which we find in Haggard is equally founded upon authority and upon reason and good sense ; and so, I apprehend, is the consequence of the breach of that condition.
The improper conduct of the wife has been alluded to, as a reason for refusing the divorce, but I confess, in my opinion, without just cause. She was on board of a ship, out of health; her husband constantly slandering her, when he ought to have been her protector. Strangers would naturally keep at a distance from her, and who was to give her the assistance which her situation demanded ? The captain of the vessel knew her and her connexions; and knew the merits and demerits of her and her husband, and had he refused assistance she must have suffered. No one pretends to tell what acts were esteemed such improprieties as seem to be imputed. _ Besides, all this was matter of defence, if any thing, and should have been pleaded. This was not like the condonation, matter appearing on the face of the bill itself. If the wife has been guilty of adultery herself, that is a good bar; but evidence of such fact, before a master, when the husband has suffered the bill to be taken pro confesso, is altogether improper; as much so as a set off would be in an action at law, upon the *646execution of a writ of inquiry. And again, it is not pretend-g(j aDy such evidence was given. Evidence of indiscretion on her part, had it been proved, would have amounted to nothing in this case, unless it proved adultery.
1 am of opinion, therefore, that the adultery was sufficiently proved; that the condonation was conditional; that the condition having been broken by both cruelty and lascivious conduct, subsequent to cohabitation, the previous cause of action, founded upon the husband’s adultery, was revived; and consequently that the complainant was entitled to a divorce.
I am therefore of opinion that the decree of the chancellor ought to be reversed.
By Senator Tracy.The evidence in this case shows satisfactorily the husband’s adultery and the wife’s voluntary cohabitation with him, with knowledge of the fact. This is what our statute regards a forgiveness, or as it is termed by the ecclesiastical law, a condonation of the offence. The important question for decision is, what are the effects or consequences of such forgiveness ? Does it entirely extinguish the offence so far as it affects the legal rights of the party aggrieved, or does it only suspend the exercise of them ? For the complainant it is contended that such a forgiveness is accompanied with an implied condition, not only that the particular injury shall not be repeated, but also that she shall be treated afterwards with conjugal kindness. The decisions of the English ecclesiastical courts certainly sustain this doctrine. Vide Durant v. Durant, 1 Hagg. Ecc. R. 733, 761, 762; Bramwell v. Bramwell, 3 id. 635; 5 Eng. Ecc. Rep. 241. But there is a wide distinction between the laws of this state and of England, as to the legal consequences of a conviction for adultery. Here it dissolves the marriage contract, entirely; there it only produces a separation of the parties, the same as a conviction for cruel treatment; and therefore, as the chancellor has justly observed in the present case, “ It is not surprising that the English 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 offence involving similar consequences.” As I read *647our statute of divorces, no part of the doctrine of the English ecclesiastical courts relative to reviving a condoned adultery can find a place here. The provisions directing a denial of a divorce in certain cases where an adultery has been proved, are either nugatory, or else the doctrine of revival of the offence after forgiveness is absurd. 2 R. S. 145, § 42, art. 3, tit. 1, ch. 8, contains four descriptions of case where, though the fact of adultery be established, the court may deny a divorce ; the second of them is, “ where the offence charged shall have been forgiven by the injured party, and such forgiveness be proved by express proof, or by the voluntary cohabitation of the parties, with the knowledge of the fact.” Now to construe “ forgiveness” to be a mere conditional contract, a security to keep the peace, a power to be held perpetually in lerrorem over the husband, seems to me not only inconsistent with the plain meaning of the term, and the obvious intention of the legislature, but with due deference to the contrary views of the English courts, repugnant to sound principles of general policy and the harmonious observance of the reciprocal duties of the parties. This latter consideration would, if I felt at liberty to construe the provisions for denying a divorce as conferring a discretionary power only, .induce me to reject the English doctrine of reviving condoned adulteries. Although the word “ may" is used instead of “ shall,” in the statute, I cannot, in looking at the whole context, doubt the intention of the legislature to give it the force of the latter word. Not to construe it so would, in the same section, allow a divorce where the offence had been committed by the procurement of the complainant; and in § 38, being the first section of the article, it would leave an arbitrary discretion in the court of chancery to refuse a divorce in cases of adultery the most wanton and outrageous.
Regarding then the forgiveness of the wife of the adultery proved, as entirely cancelling her original right to a divorce on account of it, I am prepared to say that nothing less than subsequent adultery by the husband can sustain the bill. The proof to establish this is loose and insufficient, I therefore shall vote for affirming the chancellor’s decree.
*648On the question being put, Shall this decree he reversed ? the members of the court voted as follows:
In the affirmative—Chief Justice Savage, Mr. Justice Nelson, and Senators Armstrong, Beckwith, Bishop, Cropsey, Griffin, Kemble, Lacey, Mac Donald, and Willes—11.
In the negative—Senators Downing, Edmonds, Edwards, Fisk, Lansing, Mack, Maison, Tracy, and Van Schaick—9.
Whereupon the decree of the chancellor was reversed.*
When the court came to settle the decree in this case, Senator Kemble, who had voted in the affirmative upon the question of reversal, stated that he had' done so for the reason that he was not satisfied that a condonation had been established by the proofs taken in the cause, and that consequently the complainant was entitled to a divorce on the ground of the adultery committed by the husband. Having come to this conclusion, he had not examined the question whether under the revised statutes of this state a right of action for a divorce for the cause of adultery can be revived after condonation, by any subsequent misconduct of the husband, other than of the character of the original offence.
The result of this exposition of the views of Senator Kemble is, that the principle question passed upon in this case must be considered as left open, and undecided; the opinion pronounced by the Vice Chancellor, having the support of the opinion of the Chief Justice, concurred in by Mr. Justice Nelson and nine senators, and the opinion delivered by the Chancellor having the support of the opinion of Senator Tracy, concurred in by eight senators.