Homburger v. Homburger , 46 How. Pr. 346 ( 1873 )

Freedman, J.

The evidence is insufficient. There is no testimony that the defendant had the venereal disease, or that the same was communicated to plaintiff by the defendant. In Collett agt. Collett (Jud. Com. of Privy Council, Wadd. Dig., 38, overruling 1 Curt. Ec., 678, 686), it was distinctly held that the adultery of the husband cannot be inferred from the mere fact of the wife’s being tainted with venereal disease, although she herself is not even suspected of adultery; that the existence of such disease in the wife is consistent, 1, with the adultery of the husband; 2, with her own adultery; and 3, with accidental communication of it; and that where there is no proof of the husband’s having been himself diseased at the time specified in the libel, it will not be ascribed by preference to the first of these causes, even though it appears that at a former time he had infected his wife. To the same effect is Ferguson agt. Ferguson (3 Sandf., 307).

The case is referred back for further proof.