The acts of adultery on June and were alleged in a previous petition which was dismissed on May 22 last and the question arose whether these charges were not res judicate "Charges which have been unsuccessfully put forward and disposed of in one suit cannot some; for not only does be Tepeated Ina second between the common law doctrine of estoppel apply but, since in matrimonial causes; wife usually brings her suit at the expense of her husband, a repetition of charges would act peculiar hardship" (10 Hailsham 671). "The rineiple on which the common law] doctrine of estoppel rests is applic able to matrimonial suits, and consequently the judgment of the High Court upon a matter directly in issue has ordinarily been deemed to be con- ing. clusive on the same matter, between the same parties, in another sult; although this rule has not been applied Ju cases in which the same issue was! triable in the two sults upon differ ent principles with reference to the (Smith's In Sopwith)
Sopwith (30 LI, Matr. 181), which was a sult by a husband for restitution of conjugal rights, the wife pleaded in bar the husband's adult tery, and this plea was held by: Cresswell, J., to be bad, the replicas tion showing that in a previous sult! bby the wife for a judicial separation the same acts of adultery had been pleaded by her, denied by the hus band and found by the Court not to be proved, In Finney v, Finney (1808, 1L. J.P. & D, 483) a wile petitioned for judicial separation on the ground of cruelty and the Court found that the charges were not proved; it was held that the wife was estopped from setting up the same charges of cruelty coupled with adultery in a subsequent petition for dissolution. The Judge 'Ordinary said: "According to the' Practice of every Court, after a mat for has once been putin issue and tried, and there has been a finding or 'a verdict on that issue and thereupon.
judgment, such finding and judgnuent {s conclusive between the same parties on that Issue." In Butler v. Butler (1694, P, 25) there had been cross suit between husband and wife and a decree nisi was granted against the husband on the ground of his adultery and cruelty.but was after. wards rescinded upon the ground of collusion; in a subsequent sult by the husband for 'a divorce it was held that the decree nisi in the former: sult was conclusive evidence of the adultery of the husband. "It would indeed be intolerable," said Smith, L. J. in that case, "if a litigant were entitled to re-agitate and retry Sssues.found against him, and which nding he had acquiesced in for years, and to re-open a litigation Which long since had been closed, It would be a flagrant transgression the principle upon which Judgments have always been. held conclusive inter partes."
Text read from the printed page and cleaned; old type leaves the occasional error.