1. The separation of one spouse from the other during the pendency between them of a suit for divorce is justifiable.
2. Where a wife fails in her divorce petition, she is duty-bound to return to live with her husband, make his home hers and give him her society and services. Upon the court of errors and appeals reversing the decree nisi entered in complainant's favor, she promptly proceeded to make conciliatory overtures. This was as it should be, and held, the overtures were bona fide.
3. Where the evidence is circumstantial, as here, two things must be established to prove adultery: opportunity and the will to commit the crime. Adultery, being a crime, must be proved beyond a reasonable doubt.
4. Neither the evidence of the alleged paramour nor that of the wife charged with adultery is to be rejected on the assumption that they are guilty. In the absence of very clear evidence of their guilt, their evidence is to be fairly weighed and considered.
5. The court is not bound to accept everything as true a witness may testify to. Testimony, to be worthy of belief, must be offered by a credible witness and must be such as common experience and the observation of reasonable men can approve as probable under the circumstances.
6. In the investigation of a wife's guilt, the conduct of the husband is a most significant circumstance. When a husband holds in his hands what he claims to be satisfactory proof of his wife's guilt, his delay in prosecuting is strong evidence in the wife's favor. According to the defendant in this cause, his wife's conduct was sufficient to arouse suspicion. He made no effort to trap her and stood idly by for more than two years before charging her with misconduct.
7. Held: defendant has not satisfactorily proved his charge of adultery as set up in his counter-claim to complainant's bill for maintenance, and so he in effect abandons and separates himself from her without justification and refuses and neglects to maintain and provide for her.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed by Advisory Master Campbell in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal — None.