INGTON: "Condonation, though a technical term, clearly imposes the forgiveness of an offence done, and is stated by Sanchez and some of the decisions in this court (Orme v. Orme, 2 Add. 382; Dunn v. Dunn, 2 Phil. 9), to be of two kinds: the one remissio expressa, by express words of forgiveness, and succeeding reconciliation, the other remissio tacita, and the remissio tacita includes a return to connubial intercourse."

Kent says, vol. 2, p. 73 (101): "So if the injured party subsequently to the adultery cohabits with the other, or is otherwise reconciled to the other, after just grounds of belief in the fact, it is in judgment of law a remission of the offence and a bar to the divorce."

By the statute of New York, the court may refuse to decree a divorce, though the fact of adultery be admitted,-if the offence has been forgiven and the forgiveness proved by express proof or by voluntary cohabitation of the parties with knowledge of the fact.

The word "forgiveness" in the statute would, we presume, be construed in the light of judicial decisions as the equivalent of "condonation:" Wood v. Wood, 2 Paige 108, Reviser's Notes.

"Condonation is not to be inferred from the husband and wife being in the same house together, when they have separate beds, and no sexual intercourse:" 2 Bishop, § 46.

"It is not necessary that the husband should instantly close his doors upon an offending, and it may be, a repentant wife; recollecting her former innocence, he may indulge at least in some feelings of pity for her degraded situation, and until a fit retirement is provided allow her the protection of his roof, but not the solace of his bed;" but he thinks, "condonation may possibly be inferred, more particularly against the husband, if within a reasonable time the parties do not entirely separate :" Poynter, Mar. & Div. p. 236.

"The general presumption is that married persons living in the same house do live on terms of matrimonial cohabitation, but this presumption may be rebutted by the circumstances of the particular case :" Bishop, § 46.

Greenleaf Ev., vol. 2, § 54, says: "Where parties have separate beds, there must, in order to show condonation, be some evidence of matrimonial connection beyond mere dwelling under the same roof."

་

Durant v. Durant, Hag. 1 Ecc. R. 733, per Dr. LUSHINGTON (in his argument as counsel): "Condonation is where a husband or wife cognisant of the adultery of the other, is voluntarily reconciled."

Ayliffe's Panergon 226: "Mere residence in the house without actual conjugal cohabitation is no condonation."

"Unde si," says Sanchez, "essent in eadem domo, non se alloquentes divisique a mensa et lecto, quasi duo vicini extranei, non censeretur condonatum adulterium:" Sanchez de Mat. Lib. 10 disp. 14, § 17.

And so in D'Aguilar v. D'Aguilar, 1 Hag. Ecc. R. Sup. 782, per Lord STOWELL: "The parties returned to live together,-not voluntarily on her part, and I cannot consider her acquiescence as amounting to a complete forgiveness. It was almost an extorted consent. There was no return to connubial cohabitation; for though she slept in the house for a few nights, it was in a separate bed, and though it is suggested that the separate bed was not aired, yet the contrary is proved."

In Dance v. Dance, 1 Hag. Ecc. R. 794, n., the wife remained in the same house with the husband, occupying a separate bed, however, aware that an incestuous connection with her sister was going on.

The wife's permitting the husband, at the urgent request of himself and mutual friends, to occupy for more than a year a separate bed-room in her house, and to dine with her, does not amount to a condonation: Westmeath v. Westmeath, 2 Hag. Ecc. R., Sup. 1, 118.

The following cases also have a bearing to show that the mere dwelling in the same house is not a restoration of conjugal rights, -a restoration of the position of wife :

"A husband who has already deserted his wife cannot so take off the effect of the desertion as to prevent her right to a divorce accruing by offering to support her either in his own house or elsewhere. The offer,' said the court, was not to live with her in the relation of husband and wife; and as she was by the nature and terms of the marriage contract entitled to stand in that relation to him, she was not bound to accept the offer to stand in any other relation :" 1 Bishop, § 779; Fishli v. Fishli, 2 Littell (Ky.) 337; Moss v. Moss, 2 Iredell (N. C.) 55.

And the refusal of a husband or wife to dwell with the other

party to the marriage as husband or wife, is a desertion. The withdrawal from the bed is a sufficient separation to sustain the suit for desertion: 1 Bishop, §§ 778-781, 782, 799.

"The question, as one of principle, is not without difficulty. Still, if a party to the marriage should refuse to the other whatever lawfully belongs in marriage alone,-refuse, not from considerations of health, not from any other temporary considerations, but from alienated affections, or from perverted religious notions, or from any other cause resting permanently in the will, and not in physical inability, the refusing party would thereby voluntarily withdraw from whatever the relation of marriage distinguished from any other relation existing between human beings is understood to imply, therefore he should be holden to desert thereby the other:" Bishop, § 782.

And in Dillon v. Dillon, 3 Curt. Ecc. 86, cited Bishop, vol. 2, § 42, Dr. LUSHINGTON says: "Now I have always understood the legal principle to be this, that when a husband has received such information respecting his wife's guilt, and can place such reliance upon the truth of it as to act upon it, although he is not bound to remove his wife out of his house, he ought to cease marital cohabitation with her."

In Wright v. Wright (1851), 6 Texas 22, it is said: "Their living in the same house raises a presumption of matrimonial cohabitation; but this may be repelled by circumstances. In this case a witness testifies that they had not slept together for years, and this raises the counter-presumption that during this temporary reconciliation they were not occupants of the same bed. A return to live in the same house with the husband, but without connubial cohabitation, does not operate so complete a forgiveness as when there was a renewal of conjugal society or embraces."

In the case of the wife, even conjugal cohabitation, with a full knowledge of the crime, and without fraud or force, is not conclusive of condonation, but each case depends on its own circumstances: 2 Bishop Mar. and Div. § 52; D'Aguilar v. D'Aguilar,

supra.

In Popkin v. Popkin, 1 Hag. Ecc. R. 764, where the cohabitation lasted from September to January 6th,-held not to be a bar to wife.

In Curtis v. Curtis, 1 Swab. & T. 192, 200, where the wife

left her native country with her husband and children for the purpose of avoiding a separation from the children, and preventing their being left unprotected and alone in the hands of a cruel father, the continued cohabitation was held not to amount to a condonation.

In Whispell v. Whispell, (1848), 4 Barbour 217, 221, where a divorce was granted to the wife, although there had been cohabitation, PARKER, J., says: "If condonation may be inferred from cohabitation, the presumption may be rebutted by the accompanying circumstances.

A late Alabama case holds that a wife complaining of a gross act of cruelty was not barred, though she had continued the cohabitation two years: Reese v. Reese, 23 Ala. 785 (cited) 2 Bishop, 52. And see Gardner v. Gardner, 2 Gray (Mass.) 434, where the wife occupied same room and bed for a night after the act of cruelty, held no condonation.

Quincy v. Quincy, 10 New Hamp. 272, is a valuable case, as showing the amount and the character of testimony requisite to establish condonation.

In this case the husband, after full knowledge of his wife's guilt, passed several days in the house with her,-told her several times that if she had exhibited repentance he should have tried to forgive and forget it,-stayed with her all night once when she was ill, lying down on one side of the bed during the night,-held no condonation. Per PARKER, J.: "The evidence, taken together, proves him to be a man of kind feelings, who retained considerable affection for an erring wife, but fails to make out a case of condonation. A mere promise of future forgiveness, or an unaccepted invitation to the guilty party to return to the matrimonial bed, with an offer of condonation on this event, amounts to no more than a willingness to condone, or an overture not binding until accepted, and subject to withdrawal like any other offer; it is not condonation, it does not bar the remedy."

2 Bishop, § 47 (disapproving of case of Christianberry v. Christianberry, 3 Black. (Ia.) 202, which stands alone as holding a contrary doctrine); Popkin v. Popkin, 1 Hag. Ecc. 766; Ferrers v. Ferrers, Id. 781, note; Peacock v. Peacock, 1 Swab. & T. 183; Cook v. Cook, 3 Id. 137; Quarles v. Quarles, 19 Ala. 363.

"The contrary doctrine is so foreign to the spirit of all just

laws, it so overlooks also the established principle of our juris prudence, that the thought of a man, undeveloped in act, is not to bind him" (2 Bishop, § 47; 1 Bishop Crim. Law, § 312)," as to create doubt whether it would be adopted, after consideration, by any court." E. R. R.

HOW FAR ARE EXPRESS COMPANIES LIABLE?

A WRITER in the June number of the REGISTER, 1866, has called the attention of the profession, in a clear and well-written article, to the nature and extent of the liabilities of express companies as common carriers. It is not to add force or cogency to the views of this writer, so far as he has carried them, but to suggest that he does not carry them far enough, that the following thoughts are offered for consideration. The subject, in view of the magnitude and extent of the express business of the country, is obviously one of no ordinary interest.

The question is, whether to companies organized as these are, and doing their business through the instrumentality of other companies, upon whom they are dependent for the means of transporting the goods committed to their charge from place to place, the same rigid and stringent rules are to be applied as were found necessary in a half-barbarous age, when the only avenues of transit were beset by highwaymen, and the traveller found but a questionable security within such hostelries as the country afforded. A marked distinction between the condition of a carrier then and now is indicated by the terms of the question itself. Saying nothing of the comparatively trifling value or amount of money or merchandise to be transported at that day, in contrast with the present, the ordinary means by which the business was carried on, enabled the carrier to exercise a personal care and oversight of whatever was committed to his charge, either by being himself the driver of his own wagon or the master of his own water-craft; or selecting for his servants such persons as he was satisfied were safe to be trusted. Whereas, as now conducted, the expressman is obliged to make use of such accommodation as the railway or steamboat companies provide for him, over which he can exercise no control, and for whose want of care or skill he can be, in no way, morally responsible. Carrying was always a matter of agency, a something