Morrison v. Morrison , 1884 Mass. LEXIS 93 ( 1884 )

Colburn, J.

Connivance can usually be proved only by proving facts, from which, with their circumstances, it may be inferred.

The judge who tried this case found, upon the evidence before him, certain facts from which, with the circumstances, he found that the libellant, from the time that his suspicions were first excited, was willing in his own mind that his wife should commit adultery, provided he could thereby obtain a divorce; and that he expected that she would commit adultery, and that he should obtain proof of it, and thus be enabled to procure a divorce. The finding that this was the state of the libellant’s mind, together with his conduct towards his wife and her suspected paramour, after his suspicions were excited, were sufficient to warrant the finding of connivance. Phillips v. Phillips 4 Notes of Cases, 523. Boulting v. Boulting, 3 Sw. & Tr. 329, 2 Bish. Mar. & Div. §§ 5, 6.

It is not for us to determine whether we should have drawn the same inference. There being facts and circumstances from which the inference might fairly be drawn, we cannot determine the weight and effect of the evidence, and revise the finding. Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159, 166. Sparhawk v. Sparhawk, 120 Mass. 390.

. The libellant saw fit to go to trial without an answer. If he had asked for an answer, and it was not voluntarily furnished, the court would undoubtedly, upon motion, have ordered one filed. Orrok v. Orrok, 1 Mass. 341. He does not appear to have expressed any surprise at the evidence, or the defence taken at the trial, and it is now too late to object that no answer was filed.

Decree affirmed.