T 114; Ileddcn v. Hedden, 21 X. J. Eq. 6l; Austin v. Austin, lo Conn. 221; Cairns v. Cairns, 109 Mass. 408; Masten v. Masten, 15 N. H. 159; Gower v. Gower, L. R. 2 Prob. & Div. 428. In this last case it was held, that 'if a person employed by a husband to watch his wife for the purpose of obtaining evidence of her adultery brings about an act of adultery, the husband cannot obtain a decree of dissolution [of the marriage] on the ground of such adul tery, although he may not have directed or authorized his agent to bring it about.'"
Other cases cited as supporting the same doc trine are Williamson v. Williamson, L. R. 7 Prob. Div. 76; Hawkins v. Hawkins, L. R. ю Prob. Div. 177; H eyes v. Heyes, L. R. 13 Prob. Div. n. The court conclude : — "The State makes itself a party to all marriages, in that it requires the marriage contract to be entered into before officers designated by itself, and with certain formalities which it has prescribed. This State does this, not alone that children may be born and properly reared, but that the parties to the marriage may themselves be the better citi zens; it being in accordance with the experience of all mankind that human beings are happier, and are better citizens and better disposed towards the State, when mar ried and surrounded by the ties of a family and with chil dren, than when they remain unmarried. The State desires good citizens. It regulates divorce procedure in its own interest. A divorce cannot be had except in that court which the State authorizes, and for those causes only, and with those formalities, which it has by statute prescribed. As the State favors marriages for the reasons stated, so the State does not favor divorces, and only permits a divorce to be granted when those conditions are found to exist, in respect to one or the other of the married parties, which seem to the legislature to make it probable that the interests of society will be better served, and that parties will be happier, and so the better citizens, separate, than if com pelled to remain together. The State allows divorces, not as a punishment to the offending party, nor as a favor to the innocent party, but because the State believes its own prosperity will thereby be promoted. ' Seeley's Appeal,' 56 Conn. 202, 206. The forms of the law of divorce should never be allowed to minister to the caprices of fickle-minded persons, or to the revenges of the disappointed or vindictive, and least of all to the passions of the incontinent. Nor under any circumstances should they be used in fraud of the statute allowing divorces, nor of the court. To the end that any and all attempts to use the forms of the law of divorce for any of the purposes indicated, shall be dis covered and defeated, all courts possessing divorce juris diction are vested with a discretion. A wise discretion should always be exercised in administering the law of divorce, lest its spirit be disobeyed by a too narrow adher ence to its letter."
In Morrison i>. Morrison, supra, the trial judge found that the plaintiff was willing that his wife should commit adultery, provided he could obtain a divorce, founding his decision on the facts that after his sus picions of her fidelity were aroused, he frequently re tired, leaving her alone with the suspected paramour,
having previously arranged to have them watched by a detective; allowed her to go alone with the suspected paramour in the streets of the city where they lived, and also on pleasure excursions, and permitted him to use undue familiarity with her in his presence, without disapproval. This evidence and that finding were held to support a finding of connivance. It will be observed that the plaintiffs willingness was inferred from his conduct alone. In Hedden -v. Hedden, supra, it was held that " If a husband sees what a reasonable man could not see without alarm ... he is called upon to exercise a pecu liar vigilance and care over her, and if he sees what a reasonable man could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the result." The case in Barbour showed an evident procure ment of the offense by the plaintiff, — as the court said, "a most bungling and wicked conspiracy and connivance." The activity of the plaintiff was much clearer than in the foregoing cases. Such, but still more strongly, was the New Hampshire case. In the Hawkins case, the English court went so far as to hold that where a man had seduced his wife before marriage, and left her for sixteen years, allowing her but a small sum for her support, his "conduct ¡n leaving his wife without a husband's protection . . . conduced to her adultery," and he was not entitled to a divorce. Opposed to this array of authority is Robbins v. Robbins, 140 Mass. 528; 54 Am. Rep. 488. There a husband, suspecting his wife of adultery with a lodger in his house, informed his wife that he was going out of town, and should not return that night or till late that night. He did not go out of town, but watched the house in the evening until he saw the lights in his wife's and the lodger's rooms extin guished, and then secretly entered and surprised them in bed together. It was found by the trial court that this particular opportunity for adultery would not have existed except for this scheme, but that " there was no corrupt intent that adultery should be committed." The appellate court held that the plaintiff's conduct did not constitute connivance in law; that a husband has a right " to have a wife who will remain chaste when exposed to temptations," and has a right to lay a scheme to detect her if she is guilty. It is difficult to distinguish this case from the case in 136 Massachusetts, or that in Connecticut, unless it is to be held that connivance is purely a question of fact. If a husband's willingness is infer able from his conduct, it was inferable in the Robbins case as well as in the others. We prefer the doctrine of Mr. Bishop : "A husband who suspects his wife of adultery may take means to procure proof. But he must not lead her into a fresh wrong because
