
    Ellen M. Lewis vs. Hubbard R. Lewis. Hubbard R. Lewis vs. Ellen M. Lewis.
    The dismissal of a libel for a divorce for the cause of adultery, on the grau d that the adulter/ was not proved, is conclusive evidence, in subsequent proceedings for divorce between the parties, that the alleged act was not committed.
    Two libels for divorce from bed and board; the first by the wife against the husband, for desertion ; the second by the husband against the wife, for cruel and abusive treatment.
    At the trial of the libels together, before Gray, J., without a jury, the husband, upon the issues of his desertion of the wife, and her cruel and abusive treatment of him, offered evidence to prove that, before the date of the desertion and about the time of the acts complained of as cruel, she committed adultery. But he admitted that a libel brought by him against her for a divorce from the bond of matrimony for the same adultery had been dismissed by this court after a full hearing, on the ground that the adultery was not proved.
    The judge ruled that the evidence now offered of adultery was incompetent and immaterial, and found that the husband had deserted the wife, and that the wife had not treated the husband cruelly and abusively. The husband alleged exceptions.
    
      0. Cowley, for the husband.
    
      J. W. Pettengill, for the wife.
   Morton, J.

The fact of adultery by the wife, of which the husband offered evidence at the trial, has once been litigated between these parties, and adjudged against him. He brought a libel for divorce from the bond of matrimony, against the wife, alleging the same act of adultery; and the court after a full hearing dismissed the libel, on the ground that the adultery was not proved. This judgment is conclusive evidence in favor of the wife, and estops the husband from afterwards litigating the same issue. This principle is recognized in numerous cases in this Commonwealth, but it is sufficient to refer to a few of the more recent cases. Commonwealth v. Evans, 101 Mass. 25. Thurston v. Thurston, 99 Mass. 39. Burlen v. Shannon, Ib. 200. Lea v. Lea, Ib. 493. Merriam v. Whittemore, 5 Gray, 316.

As the husband cannot again bring in question this issue, the evidence offered upon it was incompetent and properly excluded.

Exceptions overruled.  