A majority of the court were of opinion that the exception in the eighth section of the act did not amount to an absolute bar, but might be waived. That the legislature meant only to introduce an equi-. valent to the principle of condonation or forgiveness, by providing that a return to conjugal society should be a defence. They were also of opinion that subsequent acts of adultery had been proved, but as these subsequent acts were not replied to the plea of condonation, and no notice given to the respondent that they wrere to be proved, and this being a ease of first impression, they directed the cause to stand over, with leave to the libellant to amend the pleadings, so far as to introduce specific charges of the subsequent acts of adultery.
*43Harrington J. dissented.In my view, the only question for us to decide in this case, is whether the respondent has sustained his plea “ that the complainant has admitted him into conjugal society or embraces, after she knew of the act of adultery complained of.”
The act of assembly which gives this court jurisdiction of divorcee has made this “ a good defence, and a perpetual bar” against the suit fordivorce. If the act were silent on this subject, the argument which seeks to introduce into our practice all those defences, with their modifications and modes of proof that have grown up into a system under the laborious and learned decisions of the ecclesiastical courts, would as it seems to me, apply with greater force; but the legislature have in so many words, and in the same act that conferred on this court the power of granting divorces for the crime of adultery, prescribed and enacted, that if the party accused shall alledge and prove that the plaintiff has admitted him into conjugal society or embraces after she knew of the criminal fact, it shall be a good defence and a perpetual bar against such action or suit. By what authority can this court say that a subsequent repetition of the adultery is to remove this perpetual bar? and yet this is one of the doctrines of the ecclesiastical courts which we are asked by implication to introduce.
The offence charged against the defendant is the crime of adultery, with one Mary A nn Thompson, and the specification refers to the month of January 1835, as the time, and the town of Elkton as the place.
1st. Then what evidence is there of Mrs. Jeans’ knowledge of heir husband’s connexion with this woman?
In her letter of the 1st March 1835, she directly alludes to a criminal intercourse between them. She announces her determination to leave him on this account, and says <e unless you alter your course of conduct and abandon Mary Ann Thompson forever, I never will return to you, no never.” She left him in pursuance of this determination, and went to the house of her relative, Mr. Lindsay. I cannot doubt, that at this time she knew of her husband’s guilt; as nothing short of entire conviction would have induced such a woman as Mrs. Jeans to abandon her husband, for whom she avows, and is proved to have entertained groat affection ; and to break up those connexions with him and her children, which she seems to have cherished with most exemplary propriety. The existence of these commendable feelings to such an extent, was doubtless the eause of her returning to him on his promises of amendment. That such promises were given, is proved by his answer to her note of the ISsh of April, in which he quotes her charging him with “ acting the hypocrite and *44deceiving her,” and says “ I have not broken my promise since you came from Lindsay’s” — “ and under such circumstances you have left my bed again.”
These letters, and the conduct of Mrs. Jeans at the time, fully prove to my mind, that she knew of the adultery with which he is charged* that she acted on that knowledge by leaving his house* and that previously to the 13th of April, she was induced by his promises of reformation to return to him, and admit him not only into conjugal society, but to her embraces. And in addition to this there is, in my view, satisfactory evidence of intercourse to the same extent up to a much later period, the 29th of June, when she finally left him.
If I could permit myself to indulge any feeling on this subject, I could almost regret that the attachment of this good lady to her unworthy husband, and her commendable efforts to win him back to his duty, should have presented the only obstacle to her getting rid of a man every way unworthy of her. But I have to decide this case by another rule than my own wishes; a rule plainly laid down by the law, which finds even in the kindness of the petitioner a defence for the respondent, and a perpetual bar to her present application.
It is my opinion that the petition ought to be dismissed,