This case was decided in March 1860.
Dewey, J.1. The ruling of the court, excluding the respondent from stating mere private conversations between himself and his wife, was proper, such testimony being excluded in direct terms by the provisions of the St. of 1857, c. 305. This exclusion of testimony is however to be strictly confined to mere conversation between the parties, and not to be extended so far as to exclude evidence of everything said by one of the parties in the absence of other persons. Mere abusive language addressed by one party to the other, when they were not in conversation, might be the subject of testimony by the party to whom it was addressed, and would be competent evidence.
2. The rejection of evidence of the causes of a former separation might have been ground for a new trial, if the proposed evidence had been of a character that would have affected the result. Condonation does not necessarily bind the party to entire silence as to previous misconduct. It is conditional and dependent upon the future faithful performance of those marital duties that were previously disregarded. Had the respondent proposed to prove abusive acts of the libellant toward her husband of a more flagrant character than those shown after the condonation, it would have been competent to have done so, after showing that she had forfeited the privilege of condonation by her subsequent misconduct; and the whole might have been considered as bearing upon the defence set up in justification *189Gardner v. Gardner, 2 Gray, 442. D’Aguilar v. D’Aguilar. 1 Hagg. Eccl. 773.
But as we understand the case intended to be presented by the exceptions, as was stated and conceded by the counsel for both parties, the proposed evidence would show no acts of the libellant, more aggravated or abusive than those which occurred after the condonation, and had been already proved; and therefore the evidence of the earlier acts was unimportant and would not have affected the result, inasmuch as acts of the character proved, as well as those proposed to be proved, were alike insufficient, in the opinion of the presiding judge, to justify the husband in refusing to furnish his wife with clothing and food, or with money to procure the same, and intending that she should have no further support from him.
3. The instruction as to the effect of the evidence relied upon in the defence as a justification for such denial of future support to the wife was correct. Exceptions overruled.