Year: 1875

raise suspicion OF her misconduct anu "nen noo cAs
o ground TO mpute cOlusiOn"-


Antecedent Sir to tho existence OF facts not OF
suspicious but OF facts tending 70 raise any
suspicion adulterous ntercourse and your Honor
will perceive how fugitive and uncertain would bs the
limit which should founded upon tho question OF tho ers
eace suspicious adultery because those suspicious would
varied according the character Of the different pHrson'
who might be placed in that situsoa Therefore the limit
the fact Of aduerous Intercourse such conenita facts S
would csd tend to suspicion OF its exstrce think here
fore Is clear that the proposition OF my learned associate IS
But do consider It, Sir particularly ia port
n2on the question o the admby OF the proof we now
Offer for the that they given evidence on the other
side subsequent to their established limit and the precise
question before your Honor whethr. matter OF rSh
matter OF discretion. they having given that evidence
without objection part which, under he tno "c"


they established would be nadmissibe Us irrelevant ad I'M
competent they properly object to the Introduction OF
similar evidence upon part in answer to the ROOF WHICH
they have given Now refer to tho 9Th Bbour NJ PAGE
56 the case Of Moss 3 The syllabus 49, Aitcr ev
given by the plaintiff in regard to mortS
without objection dt paol evidence SIR ahd sc'era III
qurc regard to have been made by the dctni
ant parties viii be cOgsderc having acdced 'n re-
ceyn pao evidence OF the mortge and the defendant can
not then object to the proving at VIA time the mort
gage fell through"


The Court ssys 81 think the learned JUS


thee s cSc" SctGt' deedsa correctly "d a rs paro
evidence to show when the mortgage LED ny me



counsel had previously given evidence rcsar TO at
mortgage aud this objection was not made uni INC plans
msde inquiries in regard 70 ~ contents
Tue defendants counsel could not tnen Object t. proving e
singe fact whom the mortgage lei due wlihoui also
to all the previous evidence OF s coIe ls ihnh at
must be hid that parties hal acqucSccd IN receiving
psrol evidence OF the mortgage


Now that would have been consistent Sir under he eNcep
ton which was TAKEN only upon ground that the product
OF this answer in evidence wa either Of LEGAL right
was properly the subcct Of the exercise OF judicial dcroon
and in either sense held that 1t proper exercise
power upon the part Of he trying Court to admit tho PROOF
And again. Sir PaHtps Eline speaking OF this question
OF answering irrelevant testimony:


assump against several partners one Of them intro
duced letter his coparn the paiin which was IN
made against his, In consequence Of tns the pann
offered to snow that the same coparIner III answer 70 ceI
inerrogatores had conradced what he sd IN hs lrter


parallel S case IN Pacpe letter aSd w wa. S no
error the defendant himself hal laid the foundation OF


Now see Sir this case waec the one parry had asked
the other in regard declr on made The Court then re-
ccved declarations the time bat upon other occa
sions which contradicted the dectration which had oeen
improperly received In evidence withou- objection And
that is precisely Sir the attitude of this question They have
given evidence letter subsequent to December lo'o or
purpose The manifest object " the Introduction OF the
letter show certain expres OF sympathy and regra
upon the part this witness towards her husband Ihe ete
was offered to show relations after the event. and afe
the revelation the event. inconsistent entirely with the truth
of the eyed event. We anticipating the argument OF
the counsel suppose will be founded upon ne EVIL
dence and that no qustoa which be raised upon that
proof in favor OF his Client will escape the ingenuity anu the
ability Of learned friend Ii would be very difficult Sir Tor
any OF us upon tho part plant H. all OF combined
to ancpate all that the counsel might be abe to say
upon that subject. We do not pretend to that aoiy'
but we reason Sir that from the nature OF the evidence Its
legitimate and real Import to that after the fact OF this
adultery was supposed to be acerancd believed to be acer
tanned between these parties that then the relations in their
domestic contradcted the possibility Of any such
event Well now Sir depend upon single Isolated
and independent declaration which have been made under
influences aud sympats which controlled the expression OF
the wife upon particular occasion But the fact whether
or not Of these parties was inconsistent with
charged adultery to be traced by the whole course
and history connection subsequent to that period In
competent and nadmsbe 1t is true, Sir but yet opened
by the other side course Of interrogation pursued
on their part which leads to the one or the other result
Now Sir evidence is substantially In effect declaration
upon the part Ton expressions OF fondnees and aec
ton II YOU please s precisely the as II Mrs Ton
being competent had been placed upon this stand and
asked whether after December 1870 she had been in the habit
had upon that particular OCCASION ntuged In foncness OF
expression towards husband Suppose she was upon the
stand Sir making this declaration contained In this letter
and we had asked her. pursuit Of the real object what were
the truthful relations continuous in your subsequent connection
to this with the the continuous rea


tons that existed your Have not at other times
unsympahetc1 Have there not been occur
you your habua Intercourse which were con-
ssen. with the alleged adultery with the defendanti
Why most obviously Sir that could be shown 1t is a
OF the witness whom they produce upon that
subject They produce her her written declsraon ask
to contradict her by her written declaration made at another
timeincensistent with the exceptional one which they
have introduced Upon what principle would your
Honor exclude It, and how else is this letter
to be Judged except as being declaration made
upon part Mrs Ton towards the fact which they seek
to establish Of friendly and aeconae relations between her
self and husband after this event 1t Is not enough Sir
prove that upon single occasion she made these e1
pressons Of Affection and manifested continued love Tor Mr.
Ton and that they met upon that particular occasion
with responding expressions The question reaches connu
ousy and further single point Of observation We
their whole relations subsequent to the charged adu
tery whether in their consistent and habua In
there alienation, cessation OF these at
tenons and these expressions Of love and which
should have been maintained In the family the fact Of the
adultery being absent. But, Sir, II this question,
said to your Honor, Is to be considered
mere question OF discretion not matter Of
legal right submit to you, then that in the exercise OF
proper discretion with view to the truth and the justice Of
this Inquiry with reference to the acertanment OF the fact
whether the relations these parties Of character
indicated by this single letter which they introduced o
10 prove near the same time another letter from
this lady containing declaration Of certain character
which will have Its proper effect, either sustaining
modifying that contained in the letter which they have intro
duced did pursue Sir, perhaps, sufficiently far the quo
tatons from Mr. Phillips:


$50 though be not in ISSUE II the party introduce
evidence support character held that for that the
other party might give evidence in reply"


1t was incompetent evidence yet the one party had
introduced It, and the Court held that evidence in reply
was therefore admissible; and would be strange doctrine
Sir whether is done by under objection If
party can give evidence Of particular character tending
establish prominent and important issue In the that the
party might give evidence Of the same kind Whether
legal evidence mm era Sir The fact which they
seek establish by this letter important and controlling
fact consideration OF this which tends to reflect
considerable light admit upon the question Of the charged
Adultery and evidence Is given upon Il say, without