Hedden v. Hedden. all his marital duties for three years, or by his having obtained a divorce in another state. If the marriage relation existed in this state so that he can complain of a violation of its obligations, he was not discharged from the obligations imposed by it, to watch over and protect the virtue of his wife and not to permit her to be debauched, when caution on his part would prevent it. The maxim volenti non fit injuria, applies with peculiar force to such a case. The contents of the record of divorce exhibit the complainant in such a light as to strengthen and justify the conclusions arrived at as to his intentional connivance, so far as founded upon his disregard to truth and principle. The petition states as the ground of divorce, that at the marriage he believed the defendant to be virtuous, and that she had never had carnal connections with any person, but that on the same evening he discovered that she was pregnant, and for that reason he has never lived with her, or had sexual intercourse with her. This is the only reason for divorce contained in the petition. The decree adjudges that upon the proof, “the matters and things set forth in the petition, are true as therein alleged." The fact that he had antenuptial intercourse with his wife is admitted in the bill in this case, and must be taken as true for all purposes, and the fact of cohabiting with his wife for months after marriage, is proved beyond question. This shows that the divorce was procured on pretences known by him to be false, and proved by perjury or subornation of perjury, on his part. The bill in this case deliberately misrepresents that decree as founded upon adultery. And some such misrepresentation was necessary to make the allegations in the bill consistent with themselves. I am therefore of opinion that the statutory bar of consent to the adultery, is proved in two ways. First, by the consent to adultery with three other persons whom he employed to commit the crime with her, which in the case of such actual employment, I hold to be a sufficient consent to subsequent adultery with others, although the adultery he 21 76 48 356 McClane's Administratrix v. Shepherd's Executrix. devised was not committed. Secondly, by the proof from circumstances, of his knowledge of and connivance at her intercourse with Clark, in such manner as to show intentional consent on his part to that adultery. This debars the complainant of the relief sought, and renders it unnecessary to consider the question, whether the desertion for three years, under circumstances which entitled the defendant to a divorce before the commencement of this suit, and before any adultery proved, would bar the complainant. The courts of some states, with statutes like our own, have held this a sufficient bar. The reasoning of those cases would apply with increased force to this case, where the complainant has, by a divorce, beyond question valid in the state of Indiana, so far actually severed the marriage tie, that when there, he is free from all duties to his wife, could contract another valid marriage, and could live with such other wife without adultery, and, if the law of that state is like that of New Jersey, would be guilty of adultery by even living in the same house with the defendant. 21 76 54 21 21 76 64 515 MCCLANE'S ADMINISTRATRIX 8. SHEPHERD'S EXECUTRIX. 1. A plea of release is not void because it is not stated in the plea, or the answer in support of it, that the release was obtained freely and without fraud, when the bill contains no allegation of fraud. 2. Such issue cannot now be raised by special replication. The modern practice is to permit the complainant to amend his bill by inserting allegations which will raise the issue, and require the defendant to answer as to them. 3. The statute of limitations is a good plea to a bill for an account of trust funds, where the trust is not direct or express, but arises merely by implication. The question in this cause was the sufficiency of the pleas. Mr. W. H. Vredenburgh, for defendant. Mr. J. Parker, for complainant. McClane's Administratrix v. Shepherd's Executrix. THE CHANCELLOR. Douglas McClane, the intestate, and husband of the complainant, in 1856, disappeared from his house under circumstances that convinced his friends that he was dead. The complainant and Joseph Shepherd, the defendant's testator, were appointed the administrators of his estate; they sold his personal property, and also part of his real estate under an order of the Orphans Court of Monmouth county to sell his lands for the payment of his debts. In 1857, Douglas McClane was discovered to be alive, and upon finding out the situation of affairs, he executed to Joseph Shepherd a power of attorney, dated March 16th, 1857, by which he authorized Shepherd to execute in his name deeds of conveyance of all his lands; approved and confirmed all the sales he had made, and all payments made to him, and authorized him to receive what might be due on sales; and also authorized him to pay any debts owed by McClane, and all expenses attending the sale of his property, and to retain to himself full payment of all commissions, fees, and expenses attending such sales, and also ratified all payments made by said administrators out of the moneys received. McClane afterwards executed a release to Shepherd, dated October 13th, 1858, purporting to be made on a settlement. of all accounts between them, and in consideration of $10,989, and thereby released and discharged him from all demands, both at law and in equity. After this alleged settlement, both McClane and Shepherd died; Shepherd in 1862, McClane in 1866. And the bill is filed by McClane's administratrix against the executrix and heirs-at-law of Shepherd, for an account of the moneys received by him for the sale of the property of McClane, under the administration granted to him, and under the power of attorney. To this bill the defendant pleads first the release, setting forth that all the moneys charged in the bill to have been received, had been paid to and settled with McClane in his lifetime, and that the release was executed in consideration McClane's Administratrix v. Shepherd's Executrix. of $10,989, before that time paid to him at his request, and was executed under seal. And the answer in support of the plea alleges that all moneys received by Shepherd, as charged in the bill, were paid to him, or as directed by him, before the date of said release. It is urged that the plea of release is void, because it is not stated in the plea or the answer in support of it, that the release was obtained fairly and without fraud. The authorities cited in support of this position are Daniell's Ch. Pr. 694; Story's Eq. Pl., § 796, 312; Roche v. Morgell, 2 Sch. & Lef. 720; Phelps v. Sproule, 1 Mylne & Keene 231. The language of Lord Redesdale, in his opinion in the House of Lords in Roche v. Morgell, may seem to warrant the conclusion; but upon examining that case and the other cases cited in the above authorities, it will be found that in all, there were, in the bill, allegations of fraud or other matters which would, if true, have avoided the release, and that the cases only hold that it is necessary to deny, in the plea and in the answer in support of the plea, those allegations in the bill which, if true, would avoid the release. There are in this bill no allegations of fraud or of any other fact which, if true, would avoid this release. And the plea states the consideration of the release, and that it was under seal. The plea of release must be sustained as a good plea. But the complainant asks leave to amend her bill, that she may allege that the release was fraudulent, and thus compel the defendant in her plea to deny the fraud, and in her answer in support of the plea to discover the facts as to the alleged fraud. The special replication formerly allowed, by which this issue might have been raised, has been long disused, and is no longer permitted; the practice is now to permit the complainant to amend the bill by inserting allegations which will raise the issue, and require the defendant to answer as to them. The application for leave to amend was made before the argument upon the plea, and it was agreed that it should not be waived by the argument. The McClane's Administratrix v. Shepherd's Executrix. complainant must be allowed to amend, upon payment of costs. It is contended that the plea of the statute of limitations is not good, because it relates to a trust; that Shepherd, in this case, was a trustee for McClane. The statute of limitations is a good defence in equity as well as at law. When it does not, by its terms, apply to courts of equity, they have adopted it by analogy to the defence at law, in all cases in which it would be a defence in courts of law. But it is no defence in matters of a purely equitable nature, and of which courts of equity have an exclusive jurisdiction. Trusts are held to be within this exception, being matters of pure equity jurisdiction. But this exception is confined to express and technical trusts, and not to such as arise by implication. In Angell on Limitations, § 166, it is laid down "that to exempt a trust from the bar of the statute it must be a direct trust, and must be of the kind belonging exclusively to the jurisdiction of a court of equity." In the case of Allen's Adm'r v. Woolley's Ex'rs, 1 Green's Ch. 209, Mrs. Allen had put all her property in the hands of Woolley, by a writing, directing that he should place the same at interest, and apply the interest and part of the principal, if necessary, to her support. The Chancellor says that "no time will bar the claim in case of a direct trust." But whether that trust was of such a character created the doubt. He held that it was "an express direct trust, to which no plea of the statute of limitations was applicable." "This is unlike a delegated power confided to a person for a single or limited object; it reached her entire property, related to her whole living, and by its very terms, was a continuing fiduciary engagement." The facts in that case which the Chancellor relied on as constituting a direct or express trust, do not exist in this. And he adopts the distinction taken in the cases he refers to, that the statute does not apply where the trust is not express or direct, but arises by implication merely. In that case the |