It  has  been  said  that  not  having  been  propounded  by  the  party,  it  is  excluded
from  the  notice  of  the  Court — undoubtedly,  in  fairness,  it  ought  to  have  been  stated,
t>€cause,  being  a  plea  in  bar,  it  is  a  plea  which  the  plaintiff  ought  to  have  had  an
opportunity  of  contradicting;  at  the  same  time  the  Court  is  not  precluded  from
noticing  it,  at  least  to  this  effect,  that  if  the  fact  appeared  clearly  and  distinctly,
upon  the  face  of  the  depositions,  that  there  had  been  cohabitatiori,  subsequent  to  the
knowledge  and  detection  of  the  guilt  of  the  wife,  it  might,  ex  officio,  call  upon  the
husband  to  disprove  it.  But  upon  what  proof  does  it  rest  in  the  case?  Why,  that,
upon  the  night  of  the  last  fact  of  criminality,  Mr.  Elwes  is  proved  to  have  been  in
town  at  his  house  in  a  considerable  state  of  indisposition — and  I  am  to  infer  that,  on
that  very  day,  the  witness  informed  the  agent  of  what  he  had  seen,  and  that  the
agent  informed  Mr.  Elwes,  on  the  same  day,  of  the  communication  which  had  been
made  to  him,  and  that  Mr.  Elwes  did  cohabit  with  his  wife  notwithstanding  that
information.  This,  besides  its  improbability,  stands  so  destitute  of  proof  that  it  does
not  require  minute  discussion.
