#### Richard A. Hale, Appellant, v. Clara Hale, Appellee.

Gen. No. 21,284.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.

Heard in this court at the March term, 1915.

Affirmed.

Opinion filed January 3, 1916.

Certiorari denied by Supreme Court (making opinion final).

Statement of the Case.

Bill for divorce by Bichard A. Hale, complainant, against Clara Hale, defendant. From a decree dismissing his bill for want of equity, complainant appeals.

Complainant charged defendant with having committed adultery with one Clinton Vail on the 15th day of September, 1911, and on the 24th day of March, 1913, and the place of the adulterous intercourse was alleged to be the City of Chicago, and he also charged generally, but not specifically, other adulterous acts with Vail.

The answer of the defendant denied categorically the two acts of adultery specifically charged and also denied that she committed adultery at any other time or times with Vail. It is likewise charged in the bill and admitted in the answer that one child was born as the fruit of the union between the parties, a daughter, Frances Hale, who was between six and seven years of age at the time of the filing of the bill. A replication was filed to the answer and the cause was tried before the court on the pleadings thus formed.

Complainant’s proof to sustain his charges of adultery were based upon the alleged confession of his wife made on the 16th day of September, 1911, and as to the adultery charged to have been committed on March 24, 1913, on the testimony of two detectives. The alleged confession defendant denied in toto. The evidence showed that the "parties continued to live in the marital relation from that time until the middle *362of May, 1912; that complainant did not finally leave his wife until August 7, 1912, and letters written by him to her during that time were couched in 'affectionate terms, without any reference to defendant’s having fallen from marital rectitude.

Abstract of the Decision.

1. Divorce, § 50 * —when burden of proof on complainant. In a suit for divorce on the ground of adultery, the burden is on the complainant of proving by a preponderance of the evidence at least one charge of adultery made in the bill.

In avoidance of these matters, complainant put in evidence a letter dated August 7, 1912, written to him by the parents of defendant, which letter was prepared by a lawyer for complainant and which reads as follows:

“I regret that circumstances make it necessary or proper, in your opinion, for you to leave our house and leave Clara with us; but, knowing as I do that you and she have not lived together as husband and wife since you made the painful discovery, and knowing, as I have hitherto informed you, from what she has told me, that you have statutory grounds for divorce, I cannot urge or expect you to stay any longer with us, if your judgment and feelings prompt you not to do so. I beg of you, however, that if you seek a divorce you will spare her feelings and ours as much as you possibly can.”

Complainant also introduced a letter in evidence written by defendant to complainant’s mother in October, 1911.

George C. Otto and Delbert A. Clithero, for appellant.

John C. Everett, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV,’ and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Holdom

delivered the opinion of the court.

*3632. Appeal and error, § 1414 * —when findings of fact on bill for divorce not disturbed. On appeal in a bill for divorce, the trial court’s findings of fact will not be disturbed unless palpably and clearly contrary to the weight of the evidence.

3. Evidence, § 23 * —when inferences not, drawn from witness’ lacle of memory. The fact that a witness failed to remember matters as to which it would seem incredible that she had no recollection does not warrant the drawing of inferences from her testimony not deducible from the facts contained therein.

4. Divorce, § 16 * —when evidence sufficient to show condonation. On a bill for divorce on the ground of adultery, based on an alleged confession made on September 16, 1911, evidence that the parties continued to occupy the marital relation until the middle of May, 1912, and that complainant did not finally leave his wife until August 7, 1912, and that his letters to her during that time were in affectionate terms and contained no reference to the subject of her confession, held sufficient to show condonation.

5. Divorce, § 46 * -—when evidence insufficient to show confession of adultery. On a bill for divorce on the ground of adultery, evidence examined and held insufficient to show a confession of adultery.

6. Divorce, § 46 * —when evidence insufficient to shoio adultery. On a bill for divorce on the ground of adultery, evidence of private detectives employed by complainant to shadow defendant, which shows that they followed her and the co-respondent for several weeks and saw them together at times, but only in public places and surrounded by many people, is insufficient to show adultery.