section 11 of the act. The new commissioners, appointed in 1897, took the ground that the exceptions made by their predecessors should be increased and enlarged, and that there should be a different classification from that already adopted in certain respects. The positions, which the present respondents have claimed to be within the exceptions in section 11, are indicated in their answer filed in this case and in their opinion attached to and made a part of said answer. The positions so claimed by them to be excepted are also specified in the petition in the present case, and need not here be specifically enumerated.

The petition herein prays that a writ of mandamus may issue to the respondents, directing them to place the positions and places, by them in their opinion and action of May 22, 1897, attempted to be taken out of the classified service, in the classified service as provided in the Civil Service act, and commanding them to bring such positions and places within the operation of the provisions of the act. The writ of mandamus will lie to compel civil service commissioners to make a classification which may be judicially determined to be correct. In Chittenden v. Wurster, 152 N. Y. 345, which was a case arising under the Civil Service act of New York where the classification was made by the mayor, it was held that, if the mayor of a city refused to do his duty in making classification of the civil service positions, or if he did it improperly, he might be compelled by mandamus to do it in accordance with the requirements of the statute. An order will be entered, that the writ of mandamus issue against the respondents in this case in accordance with the prayer of the petition. Writ awarded.

Mr. CHIEF JUSTICE PHILLIPS, dissenting.

171 133 176 187

171 133

HAIAH FEIGE DUBERSTEIN

V.

ISAAC DUBERSTEIN.

Opinion filed December 22, 1897-Rehearing denied February 4, 1898.

1. DIVORCE-condonation is a stricter bar against husband than against wife. Condonation of the wife's offense by the husband is a stricter bar against the procuring of a divorce than is condonation by the wife of the husband's offense.

2. SAME-condonation is conditioned upon non-repetition of the offense. Condonation is regarded as resting upon an express or implied agreement granting forgiveness for an offense upon the condition that it will not be repeated.

3. SAME-husband seeking divorce for cruelty must make out a clear case. Where a husband seeks a divorce upon the ground of the wife's extreme and repeated cruelty, he must make out a clear case.

4. SAME slight acts of violence by wife are not extreme cruelty. Slight acts of violence by the wife are not sufficient to make out a case of extreme and repeated cruelty, in the absence of reason for supposing that the husband cannot protect himself.

5. SAME-recrimination defined. Recrimination is a counter-charge by the defendant in a divorce suit, of a cause of divorce against the complainant.

6. SAME―divorce is a remedy provided for innocent party, only. Divorce is a remedy provided for an innocent party, and when each party has cause for divorce against the other, of the same statutory character, neither can be granted a divorce.

7. SAME―extreme and repeated cruelty is a sufficient recriminatory defense to like charge. A defendant charged with extreme and repeated cruelty may show in defense the complainant was equally cruel.

8. SAME where both parties are guilty of cruelty neither can obtain a divorce. The court reviews the evidence in the case, and reverses the decree granting the husband a divorce for the wife's cruelty, and holds that the evidence shows that both parties were guilty of cruelty and that neither is entitled to a divorce from the other. Duberstein v. Duberstein, 66 Ill. App. 579, reversed.

APPEAL from the Appellate Court for the First District;-heard in that court on writ of error to the Circuit Court of Cook county; the Hon. ELBRIDGE HANECY, Judge, presiding.

This is a bill for divorce, filed on November 29, 1895, in the circuit court of Cook county by the appellee, Isaac Duberstein, against his wife, the appellant, Haiah Feige Duberstein, seeking a divorce from her upon the charge of extreme and repeated cruelty exercised by her towards him. An answer was filed by the defendant below, the appellant here, denying the charge of cruelty so made against her, and denying the specific acts of cruelty set up in the bill. The answer also pleaded condonation of the acts of cruelty set forth in the bill; and it furthermore made a counter-charge of cruelty against the complainant below, the appellee here, and specified particular acts of cruelty on the part of the complainant in support of the counter-charge. By leave of court an amended answer was filed in place of the original answer. The replication was filed to the amended answer on March 10, 1896. On April 25, 1896, a motion was made by the defendant below for a jury trial, which motion was continued. There is nothing in the abstract filed to show how this motion was disposed of. But the cause went to a hearing before the judge without a jury, and, so far as can be ascertained from the abstract, without objection by the defendant below, although a motion to submit the case to a jury was made after all the evidence had been introduced on both sides, and after the arguments had been heard, and after the court had taken the cause under advisement. Testimony was taken on behalf of the complainant to sustain the charge of cruelty, and on behalf of the defendant to sustain the counter-charge of cruelty. The court rendered a decree, sustaining the allegations of the original bill, and granting to the complainant therein, the appellee here, a divorce upon the ground that the defendant, the appellant here, had been guilty of extreme and repeated cruelty towards her husband. The decree of the circuit court has been affirmed by the Appellate Court; and the present appeal is prosecuted from such judgment of affirmance.

MOSES, ROSENTHAL & KENNEDY, and PAM & DONNELLY, for appellant.

ZOLOTKOFF & ZOLINE, for appellee.

Mr. JUSTICE MAGRUDER delivered the opinion of the court:

The Appellate Court, in its opinion filed in this case, summarizes the acts of cruelty, charged by the appellee against the appellant, as follows: "1. The throwing of a chair in January, 1886, on Mr. Duberstein, inflicting a serious injury on his side. 2. The drawing of a knife upon him in the fall of 1888 without injury to him. 3. The throwing of an iron stove-cover at him, striking his head and inflicting serious injury in April, 1891. 4. Use of violent and abusive language and threats in August, 1894, and at other times previous thereto. 5. Striking Mr. Duberstein with an ornament stone in April, 1895, and throwing chairs and cuspidor at him, inflicting two wounds on his head; that he was under the care of a physician and compelled to undergo an operation."

From an examination of the pleadings and the evidence, we are inclined to regard the summary thus made by the Appellate Court as correct. So far as the fourth charge as to the use of violent and abusive language is concerned, it may be said that this charge constitutes no sufficient ground for divorce. As to the first three acts of cruelty, charged by the appellee against the appellant, as specified in the above summary, the evidence shows that they were all condoned by the appellee.

The appellee makes the following statement in his testimony: "Commencing from January now, we lived for about four or five weeks very happily, and I brought all my money home. It was 1895, instead of 1894, when we lived happily for four or five weeks; in January or February." For reasons founded in the conjugal relation, and in view of the difference in the duties respectively

required of the husband and wife in the domestic establishment, a less stringent rule is held against her than against him, so far as inferences of condonation are concerned from the overt acts of the parties respectively. The authorities hold, that condonation is not so strict a bar against a wife as against a husband, inasmuch as she may find it difficult to quit the common domicile, and often submits through necessity. Hence, condonation on the part of the wife is not pressed with the same vigor as condonation on the part of the husband. (Phillips v. Phillips, 1 Ill. App. 245; Home v. Home, 72 N. C. 530; Reese v. Reese, 23 Ala. 485; Davies v. Davies, 55 Barb. 130; Sterling v. Sterling, 12 Ga. 201). The converse of the rule must be true, that condonation is a stricter bar against the husband as against his wife, than it is against the wife as against her husband; and condonation by the husband will much more readily be relied upon as a defense in favor of the wife, where she repeats the offense condoned. The testimony here establishes a condonation by the appellee of the acts of cruelty charged against his wife, which are alleged to have taken place prior to April, 1895. In view of such condonation we do not deem it necessary to discuss the acts of cruelty taking place before April, 1895. The testimony in support of them comes principally from relatives and employes of the appellee. They are denied by the appellant, both in her answer and in her testimony; and many circumstances, unnecessary to be here dilated upon, tend to support her denial. But whether such prior charges of cruelty against her are sustained or not, it is virtually conceded on the part of the appellee, that the testimony as to what occurred in January and February, 1895, amounted to a condonation of such offenses, unless the right to rely upon them was revived by the alleged conduct of appellant in April, 1895.

Appellee insists that in April, 1895, appellant was guilty of such acts of cruelty towards him as to do away with the effect of the previous condonation. The general