204 Mass. 25 | Mass. | 1910
The evidence in this case tended strongly to show the commission of the adultery charged in the libel; but in view of the advanced age of the libellee and of the burden of proof which rested upon the libellant the judge was not bound so to find. Indeed the libellant’s counsel very properly has made no such contention. The only contention now made is that the judge erred in excluding testimony of an assault com
It is contended that this testimony was competent as tending to show cruel and abusive treatment of the libellant by her husband. Undoubtedly, if the assault were in any degree participated in or encouraged or even afterwards approved by the husband, it would have been material evidence of cruelty on his part; in view of the duty of protection owed to a wife by her husband, it would perhaps have been as strong evidence against him as if he had himself committed the assault. But he cannot be held answerable for the act of a third person, even of one with whom his relations were as close and intimate as was alleged to be the case here, unless he is shown to have made the act his own, either by procurement or previous assent or by acquiescence or subsequent approval and adoption. Otherwise, it is not competent to be shown in evidence against him. There was here no express evidence of subsequent approval or adoption of this assault. Although on all the evidence a finding might have been warranted that it was procured or incited, or at least acquiesced in by the libellee, yet the judge was not bound so to find; it must now be presumed that he did not find either one of these essential facts; and in that event the evidence was properly excluded.
Exceptions overruled.
