Lutz v. Lutz , 52 N.J. Eq. 241 ( 1893 )

Green, V. C.

Application is made by the solicitor of petitioner for leave to file a supplemental petition, for the purpose of charging adultery committed by the defendant subsequent to the alleged condonation, by the petitioner, of the previously charged act of adultery, and subsequent to the commencement of the suit.

It is undoubtedly the rule, in general, that leave will not be granted to file a supplemental bill or petition setting up subsequent acts of adultery (Milner v. Milner, 2 Edw. Ch. 114), and this proceeds on the ground that the acts charged, each of them, constitute a cause of action, and that there is no dependence of one upon the other. This rule, however, does not apply in this case, for there is a direct connection between the original cause of action and that contemplated by this application. Condonation is conditional forgiveness of a matrimonial offence, which may be destroyed by the commission of another matrimonial offence, even of a lesser degree; the condition is that the one forgiven will treat the injured one with conjugal affection and kindness, and any violation of this condition will revive the cause of action which was before forgiven. When condonation is interposed as a defence, it is an answer to this, that the condition inherent in the condonation has been broken by the commission of a subsequent matrimonial offence, and so there is a .direct connection between the two alleged offences.

1 If not pleaded it might be justly objected to on the ground 'of surprise.

If it had happened before the commencement of the suit, it might be incorporated by amendment, but if after, can be introduced by a supplemental bill or petition.

The motion should be granted.