The plaintiff fails to sustain the burden resting upon her as the excepting party as to any of the exceptions taken at the trial.
1. The plaintiff’s offer to prove by her attending physician her statements to him was rightly rejected, because it included a statement that the defendant was the person who had had intercourse with her, which could not affect the nature of her disease or the physician’s understanding thereof, and the physician’s testimony to which would be mere hearsay evidence, directly tending to prejudice the defendant.
2. The testimony of the defendant’s family physician, though negative in character, yet not being shown by the bill of exceptions to be too remote in point of time, might lawfully be admitted in answer to the evidence previously introduced and relied on by the plaintiff.
3. The bill of exceptions not showing what the matters were to which the defendant’s wife had testified in his favor, and showing that no evidence had been offered of an attempt to procure a warrant against the defendant, and the strong bias and prejudice of the witness being admitted, it does not appear that the exclusion of the question put to her on cross-examination was beyond the legal exercise of the discretion of the presiding judge. Commonwealth v. Shaw, 4 Cush. 593. Parmenter v Coburn, 6 Gray, 509.
*674. The evidence that the defendant some months before had slept one night in a house of ill fame might properly be excluded as immaterial.
5. The statement by the presiding judge in the instructions to the jury of what had been said of the nature of the action does not appear to have been justly open to exception as charging them in respect to matters of fact in violation of the Gen. Sts. c. 115, § 5. Harrington v. Harrington, 107 Mass. 329.
Exceptions overruled.