Clement v. Kimball

Wells, J. The defendant called a witness to prove the fact of an adultery committed by his wife with one Page, and that the witness had informed him of the fact within a period which must have been before he brought his suit for divorce. His libel charged adultery with sundry persons named, and added charges of adultery with persons unknown; but omitted any charge of adultery with Page. The improbability that he would have omitted to allege such a fact, if it had existed and he had known 537 of it, bore upon the probability of the truth of the testimony which he produced in this suit. It was open to explanation, and might have no force, if satisfactorily explained; but it was nevertheless competent evidence. The exception is taken to the admission of the evidence, not to the use which was made of it in the argument. If the defendant desired to raise any question as to the application and effect of the evidence, he should have asked for proper instructions in regard to it. In the absence of any exception upon that ground, we are to presume that proper instructions were given. Evidence of the bad reputation for chastity and virtue of two or more men, from whom the defendant’s wife received visits while boarding with the plaintiff, would not, of itself, tend to prove that she was living there in adultery; nor that she committed adultery with either of those men. Such testimony often becomes competent when there is other evidence in the case to show relations of an equivocal character between persons of opposite sex, either in the manner of their association, or in the time, place and circumstances in which they are shown to be with each other. In such cases, evidence of the reputation of one of the parties, especially if notorious or known to the other, may help to explain their conduct towards each other. It is admitted in aid of, and as incidental to, the other circumstantial evidence; and not as in itself evidence to prove adultery. A foundation must be laid by the other evidence before such testimony can be'permitted to be introduced at all. The mere fact that a married woman, though separated from her husband, receives, at her boarding-house, visits from two or more men, will not warrant the introduction of such testimony. Exceptions overruled.