156 U.S.

361
15 S.Ct. 383
39 L.Ed. 453

WALDRON
v.
WALDRON.
No. 97.
March 4, 1895.

Mary Russell Beauchamp was married in September, 1865, to E. H.

Waldron. They lived in Lafayette, Ind., from the date of their marriage
until 1875, when they removed to St. Louis, the employment of the
husband calling him there. In 1877 they left St. Louis, and returned to
Indiana, where they continued to live as husband and wife until June,
1886. At that date the husband abandoned his marital relations, and fixed
his permanent residence in Chicago. For 12 or 15 years, prior to June,
1886, the husband, Waldron, had friendly relations with E. S. Alexander
and wife, who lived in Chicago; Waldron dealing with Alexander in a
business way, and also calling socially at his residence, and Alexander
visiting Waldron when he came to Lafayette. In February, 1886, E. S.
Alexander died, leaving a widow. Subsequently, Mrs. Waldron filed in the
superior court of Tippecanoe county, Ind., a suit for divorce against her
husband, which ripened, in June, 1887, into a decree granting the divorce,
and giving her $10,000 alimony. In October, 1887, E. H. Waldron married
Mrs. Josephine P. Alexander, the widow of E. S. Alexander. In June,
1888, Mary Russell, the divorced wife of E. H. Waldron, sued Mrs.
Josephine P. Waldron, the former Mrs. Alexander, in the circuit court of
the United States for the Northern district of Illinois. The grounds of this
action are stated in her complaint
(1) 'Whereas, the said defendant, countriving, and wrongfully, wickedly,
and unjustly intending, to injure the said plaintiff, and to deprive her of the
comfort, fellowship, society, aid, and assistance of Edwin H. Waldron, the
then husband of the said plaintiff, and to alienate and destroy his affection
for said plaintiff, on, to wit, the 6th day of June, A. D. 1886, and on divers
other days and times between said 6th day of June, A. D. 1886, to the 21st
day of June, A. D. 1887, at,' etc., 'wrongfully, wickedly, and unjustly

debauched and carnally knew the said Edwin H. Waldron, then and there
still being the husband of the said plaintiff; and thereby the affection of
the said Edwin H. Waldron for the said plaintiff was then and there
alienated and destroyed, and also, by reason of the premises, the said
plaintiff from thence hitherto wholly lost and was deprived of the comfort,
fellowship, society, and assistance of the said Edwin H. Waldron, her said
husband, in her domestic affairs, which the said plaintiff during all that
time ought to have had, and otherwise might and would have had,' etc.,
'aforesaid.'
(2) 'Whereas, the said defendant, contriving, and wrongfully, wickedly,
and unjustly intending, to injure the said plaintiff, and to deprive her of the
comfort, fellowship, society, aid, and assistance of Edwin H. Waldron, the
then husband of the said plaintiff, and to alienate and destroy his affection
for the said plaintiff, on, to wit, the 6th day of June, A. D. 1886, and on
divers other days and times between said 6th day of June, A. D. 1886, and
the 21st day of June, A. D. 1887, at,' etc., 'wrongfully and unjustly sought
and made the acquaintance of Edwin H. Waldron, the husband of the said
plaintiff, and then and there, well knowing that said Edwin H. Waldron
was the husband of said plaintiff, wrongfully, wickedly, and unjustly
besought, persuaded, and allured the said Edwin H. Waldron to desert and
abandon the said plaintiff; and thereby the affection of said Edward H.
Waldron for the plaintiff was alienated and destroyed, and also, by reason
of the premises, the plaintiff has from thence hitherto been wholly
deprived of the affection, society, aid, and assistance of her said husband
in her domestic affairs, which the plaintiff during all that time ought to
have had, and otherwise might and would have had, and also, by reason of
the premises, the said plaintiff, during all said time from thence hitherto,
suffered great mental anguish and loss of social reputation at,' etc.,
'aforesaid, to the damages of said plaintiff of one hundred thousand
dollars, and therefore she brings her suit,' etc.
The defendant pleaded that inasmuch as the relation of husband and wife,
which formerly existed between the plaintiff and defendant's present
husband, had been terminated by a decree of divorce, granted at plaintiff's
own demand, the action was not maintainable. She further pleaded the
general issue.
The case came to trial in January, 1890. In the opening statement,
foreshadowing the case which it was proposed to prove, one of the
counsel for plaintiff read to the jury extracts from the divorce
proceedings, and commented thereon in a manner which clearly indicated
that they were links in a chain of evidence which plaintiff proposed to

offer in order to establish the adultery of the defendant. Thereafter, during

the progress of the trial, the record of the divorce suit was offered in
evidence by the plaintiff, for the general purposes of the case; and its
admission was objected to by the defense on the ground that it was res
inter alios, and that the plaintiff could not make proof for herself by
offering her own petition as evidence in her favor, and thus asperse the
character of the defendant. The court admitted the record to prove the fact
of the divorce alone, and, while thus admitting it, repeatedly declared that
it could only be used for that one purpose, and that the averments in the
petition and other matters reflecting on the defendant were not to be
disclosed or read to the jury. The defendant excepted to the admission of
the record for any purpose whatever.
The plaintiff then offered the statute of Indiana relative to divorce, and
this was also admitted, in spite of objection, as evidence of the Indiana
law on that subject. The testimony of the judge before whom the divorce
proceeding was had was then admitted. Wilson, who appeared as attorney
for Waldron in the divorce proceeding, was also allowed, over objection,
to testify as to his connection therewith. Davie, the witness on the strength
of whose testimony the decree of divorce had been mainly based, was also
allowed to testify. In the closing argument to the jury, Mr. Aldrich, of
counsel for the plaintiff, used the following language:
"The divorce law of Indiana provides that * * * a divorce may be decreed
* * * for the following causes, and no other: Adultery, except as
hereinafter provided; impotency existing at the time of the marriage;
abandonment for two years; cruel and inhuman treatment of either party
by the other; habitual drunkenness of either party; the failure of the
husband to make reasonable provision for his family for a period of two
years; the conviction subsequent to the marriage, in any country, of either
party, of an infamous crime. * * *
"The only two that are referred to in this bill for divorce the record is not
here. I shall state it, and if it is challenged I shall read it when it comes
are these: That he had abandoned her. Is there any conflict in the evidence
in this case that that abandonment only extended from the 6th day of June
up until the time this decree was entered, the 21st day of June, 1887,a
year. Is that a compliance with the statute calling for abandonment for
two years? Nothing of the kind. Cruel and inhuman treatment? Hasn't
Edward H. Waldron testified upon the stand in this case, and is there any
dispute upon this subject, that there was no cruel and inhuman treatment
upon his part in this case; that he had never been guilty of cruel and
inhuman treatment? And has the statement been challenged that cruel and

inhuman treatment, under the laws of the state of Indiana, only means acts
or cruelty coupled with personal violence? * * *
"There has been no cruelty, or anything of the kind. They say there is no
charge of adultery in this case. The record says that there was no cruel and
inhuman treatment, and that he was enamored of Josephine P. Alexander,
in this case. * * * Mr. Davie was the only witness upon this subject, * * *
and he has said * * * that he * * * did not know Edward H. Waldron until
he came to Chicago, and Edward H. Waldron * * * has testified * * * that
up to the time he came to Chicago he had no acquaintance with Robert
Davie. * * * He was the agentthe paid agentor Edward H. Waldron.
Edward H. Waldron is too able a man, he has too much brains, he is too
cute, he is too slick, gentlemen of the jury, not to apply any other terms
but those that are fitting to him, to suppose that a decree could be obtained
in Indiana for abandonment or for curelty or for inhuman treatment.
Edward H. Waldron knew as well as you know that he could only get a
divorce, and it could only be procured on the ground of his adultery with
somebody. * * * Robert Davie knew it. By reason of this nonacquaintance
at that time, Robert Davie could not have testified to any of the acts of
cruelty. How did Robert Davie acquire his information? By these
innumerable visits to Chicago. * * * In view of the testimony in this case,
in view of the relations of the parties, in view of the fact that Edward H.
Waldron has testified that he had talked with the defendant on two
occasions about these divorce matters, and the fact that he was living at
this house at that time, with that fact before you, you cannot believe, that
it was unpremeditated, that it was unknown, or anything of that kind.'
'Mr. McCoy, for the defendant, excepted to the statement of counsel that
Robert Davie had obtained the information to which he testified in the
divorce proceeding in Chicago, or from Edward H. Waldron, on the
ground that the court had excluded the evidence of Robert Davie on that
subject.
'Mr. McCoy: 'I read a question here as to whether or not, Mr. Davie
obtained his information in Chicago, and he replied that he did not, and
that extra question and answer was stricken out as being within the
character of the evidence excluded by the court. Therefore, I do not think
it is proper to comment upon to the jury.'
'Mr. Aldrich further stated to the jury: 'I submit to you, gentlemen, that
any information upon that subjectwhether it was cruelty, or whether it
was cruel and inhuman treatment, or whether it was abandonmentmust
have been acquired by Mr. Divie while he was in Chicago.'

'To which statement of counsel for the plaintiff, Mr. McCoy, counsel for
the defendant, objected, and then and there duly excepted, for the reasons
above stated.
'Mr. McCoy further objected to the statements of the counsel for the
plaintiff to the jury as to the laws of Indiana on the subject of divorce, and
the argument that it must have been granted on the grounds alleged in the
complaint in the divorce proceeding reflecting upon the character of the
defendant, Josephine P. Alexander, and then and there duly excepted to
such statements.
'And thereupon, after further arguments to the jury, * * * Mr. Dexter
addressed the jury in a closing argument on behalf of the plaintiff, in the
course of which * * * he spoke as follows:
'Mr. Dexter's Closing Argument.
"Now, what was that divorce? Gentlemen, this subject of divorce was
spoken of, you recollect, between Waldron and the defendant. It is was a
matter of conversation, he says, on one or two occasions, and you have
heard read his language on that subject. How, I assert that here was a
wicked scheme against the established order of society and the rights of
this woman, and that the defendant shall not excape here by throwing up
false issues. Are there any grounds of divorce here, except those which
sustain this action?'
'Mr. Walker, for defendant: 'I enter my objection to the statement of
counsel.'
'The Court: 'All that was in the declaration the court excluded.'
'Mr. Dexter: ' * * * The conclusion that it [the evidence] leads to, counsel
shrinks from; it hurts him. The jury cannot be fogged about it. There is
something underneath here that is reached for, and you will lay hold of it,
and you will not be deceived about it. There will he no effectual effort to
keep your minds from coming to the conclusion that it ought to reach. I
shall confine myself to the statements admitted by the court and read to
the jury. * * *
"The plaintiff prays for decree of divorce for misconduct of the defendant
on account of his cruel and inhuman treatment of this plaintiffneither
cruel nor inhuman treatment proven save in the language of the bill'in
this, that he has become enamored of one Josephine P. Alexander, a
married woman.'"

In its final charge to the jury, the court, among other things, said:
'The court has already adjudged that the decree of divorce obtained by the
plaintiff from Mr. Waldron, June 21, 1887, is evidence conclusive in this
case that the marriage relations between the plaintiff and Mr. Waldron
were dissolved from the date of that decree. The decree of divorce acted
on the status of the parties, and dissolved the marriage relation theretofore
existing between them, and left each free to remarry; but the allegations
contained in the bill of complaint in that case against Mrs. E. S.
Alexander, the present defendant, are not evidence in this case, and were
excluded by the court.
'The evidence also taken on the trial of that case is not competent
evidence against the defendant in this case, and was also excluded. She,
not being a party thereto, is not permitted to appear and cross-examine the
witnesses. Nor should the jury assume or infer from anything in evidence
in this case that the judgment of divorce was granted upon the ground of
adultery, as that is not one of the grounds alleged in the bill of complaint,
nor upon any ground or for any of the causes having reference to the
conduct of the defendant in this case. Such an inference has been sought to
be drawn by counsel from the proceedings in that case, but it is an
inference not warranted by the record in evidence, and unfair towards the
defendant. The jury will try this case upon the evidence produced on this
trial, and not assume or infer that other evidence might have been
produced here, or was produced in some other case, to which the
defendant was not a party.'
In February there was a verdict in favor of the plaintiff for $17,500 (45
Fed. 315). In March an application for a new trial was heard, and taken
under advisement. In June, the motion for a new trial having been
overruled, the defendant moved in arrest. This motion was also overruled,
and on the same day judgment was rendered on the verdict. The record
states that, on motion for defendant, the time to file a bill of exceptions
was extended to the 1st day of November next. Thereafter, a writ of error
was sued out, and a supersedeas bond fixed at $25,000. On October 6,
1890, a written stipulation was entered into between counsel, which, after
mentioning the suing out of the writ of error, the giving of the supersedeas
bond, and the issuance of citation returnable here in October, 1890,
expressed the desire of the plaintiff in error to obtain an extension of time
to prepare the bill of exceptions and file the record here, and set out that
this extension was agreed to by the defendant in error, provided:
'First. That the above-named defendant, as plaintiff in error, shall file in

the office of the clerk of the supreme court of the United States the said
writ of error, the said citation, and this stipulation, and shall have the said
cause docketed in said supreme court, in its regular order, within the time
regularly required by the rules of said court for the filing of the transcript
of the record in said cause in said supreme court, as if this stipulation had
not been made.
'Second. That counsel for the above-named defendant shall have until
November 15, A. D. 1890, to prepare the bill of exceptions in said cause,
and deliver it to counsel for the above-named plaintiff, for examination
and such correction as he may deem proper.
'Third. That counsel for the above-named plaintiff shall examine said bill
of exceptions, and return it to counsel for the above-named defendant
within thirty days after it shall have been delivered to him, with any
proposed corrections or alterations which he may deem proper.
'Fourth. Thereafter, as soon as practicable, but within thirty days, upon
reasonable notice, said bill of exceptions shall be presented to the judge
who conducted the trial of said cause, for his approval, after the
settlement by him of any parts of said bill of exceptions as to which
counsel may have been unable to agree.
'Fifth. That said bill of exceptions shall be approved by said judge, and be
by him sent to the clerk of said circuit court, with directions that it be filed
as of the date of the entry of said judgment.
'Sixth. That within thirty days after said bill of exceptions shall have been
so filed the transcript of said record shall be completed, and filed in the
supreme court of the United States, in said cause, as theretofore docketed.
'That in the meantime, so long as counsel for said above-named defendant
make no default in the performance of the conditions of this stipulation,
counsel for the above-named plaintiff (defendant in error) will make no
motion to dismiss said writ of error for failure to file said transcript of the
record within the time regularly prescribed by the rules of said supreme
court, and the said transcript, when so filed, shall be taken and considered
as having been filed in apt time.
'This stipulation is executed in triplicate, one to be filed in the supreme
court of the United States, and one to be retained by counsel for each of
said parties.
'Dated at Chicago, Illinois, October 6, A. D. 1890.'

Application was made here, in due season, to docket this agreement and
writ of error in lieu of the record, and was refused. The settlement of the
bill of exceptions by the court is thus stated in the record:
'The clerk of said court will file this bill of exceptions as of the date of
July 10th, A. D. 1890.
R. Bunn, Judge.

'To William H. Bradley, Esq., Clerk.

'Upon the presentation of the bill of exceptions to the judge for settlement, on
February 21, 1891, counsel for plaintiff (defendant in error) moved that the
judge do not sign the same, because the defendant (plaintiff in error) has
waived her right thereto, since said defendant has not filed this bill of
exceptions within the time prescribed by the judge at the time the appeal was
prayed, and has failed to have said case docketed in the supreme court, as in
and by a stipulation entered into on October 8, 1890, between the attorneys of
the respective parties prescribed.

'Which motion was denied by the judge.

'To which ruling counsel for plaintiff then and there duly excepted.

'Date, Madison, Feb'y 21, 1891.'

The bill of exceptions in its caption recites:

'Be it remembered that on the trial of the above-entitled cause on the 21st, 22d,
23d, 24th, 27th, 28th, 29th, 30th, and 31st days of January, and the 1st, 3d, and
4th days of February, A. D. 1890, in the December term of said court, A. D.
1889, the said cause having been reached and come on for trial in its regular
order on the trial calendar of said court, the following proceedings were had,
viz.'

When it reaches the point where the evidence for plaintiff is recited, there
appears the heading, 'Plaintiff's Evidence.' At the point where the opening
evidence for the plaintiff ends, is the following entry: 'Which was all the
evidence here offered on the part of the plaintiff on the trial of the cause.' This
is immediately followed by the words, 'Defendant's Evidence. Thereupon, the

defendant, to maintain the issues on his part in said cause, introduced the
following evidence.' At the close of the evidence which follows the foregoing
is the entry, 'Here counsel for defendant rested their case'; and following this:
'Rebuttal. And thereupon the plaintiff, further to maintain the issues on her part,
introduced the following evidence in rebuttal.' At the conclusion of this
evidence is the statement, 'Which was all the testimony offered on the trial of
said cause.' The record was filed and docketed here February 28, 1891. In
December, 1892, defendant in error moved to vacate the supersedeas because
the surety on the bond had become insolvent. On December 12th it was ordered
that a new bond be given within 30 days, and on the same day the new bond
was filed.
9

Wm. H. Barnum, for plaintiff in error.

10

Chas. H. Aldrich, for defendant in error.

11

[Argument of Counsel from pages 371-377 intentionally omitted]

12

Mr. Justice WHITE, after stating the case, delivered the opinion of the court.

13

The motion to dismiss or affirm is without merit. The signing of the bill of
exceptions after the expriation of the term at which the judgment was rendered
was lawful, if done by consent of parties given during that term. Hunnicutt v.
Peyton, 102 U. S. 333; Davis v. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102; Bank
v. Eldred, 143 U. S. 293, 12 Sup. Ct. 450.

14

The fact that the bill of exceptions was not handed to counsel for defendant on
or before November 15, 1890, does not appear of record; and, if it did, it would
be rendered immaterial by the action of the judge below in settling the bill.

15

If the bill was not delivered to counsel within the time fixed by the agreement,
objection to the failure so to deliver it should have been urged when the bill
was settled. And, if an objection then taken was overruled, the question of the
correctness of such action should have been then reserved. The fact is that the
only reservation made in the settlement of the bill is thus stated in the record:
'Counsel for plaintiff move that the judge do not sign the same, because the
defendant has not filed this bill of exceptions within the time prescribed * * * at
the time the appeal was prayed.' This, of course, was not sound, in view of the
agreement whereby the time which had been at first fixed was extended. The
only question reserved in this connection is accordingly, also, without merit. As
to the contention that the appeal was docketed too late, the defendant in error is

precluded from relying thereon by reason of his motion here for a new bond,
long after the entry of the case on the docket of this court, which was made at
the return term.
16

Whether the concluding words in the bill of exceptions, 'which was all the
testimony offered on the trial of the cause,' would be treated as meaning all the
evidence, if unexplained by the context of the bill, need not be considered, as
all the recitals in the bill, from the caption to the end thereof, taken together, we
think, conclusively show that the words, 'all the testimony,' were used as
synonymous with 'all the evidence.' This conclusion is strengthened by the fact
that the bill was settled contradictorily, and no reservation as to its
incompleteness was made.

17

Coming, then, to consider the record, we find that the assignments of error here
are of a threefold nature: (a) Those which relate to the conclusions of law
reached by the court upon the merits of the controversy; (b) those which
complain of perversion and misuse by counsel of evidence admitted, which it is
alleged were so serious that they must have affected the minds of the jury to
such an extent as to render the verdict and judgment necessarily reversible; and
(c) those which rest upon the alleged rejection of legal and admission of illegal
evidence.

18

We will first approach the investigation of the matters mentioned under the
second heading, since, if the complaint of perversion and misuse of evidence is
justified, it is not necessary to consider whether the rulings on the admissibility
of testimony, or the final conclusions of law, upon the merits, were correct.

19

The complaint of the conduct of counsel in argument is substantially predicated

upon the following analysis of the facts, which we find borne out by the record.
In the opening statement of counsel for plaintiff, portions of the divorce
proceedings were read to the jury; counsel saying, among other things: 'Here
was an allegation that she has enticed him from his home, and the divorce was
granted upon that ground, among others; that is, the decree finds that the facts
in the complaint were proved, and that the divorce was granted upon that
ground.' When the record of the divorce proceedings was offered by the
plaintiff, objection was made thereto; and thereupon the court admitted it to
prove the fact of the divorce alone, expressly limiting it to such purpose, and
forbidding the reading or stating to the jury any of the averments found in the
petition which in any way reflected upon the defendant. When the statute of
Indiana was admitted, over objection, its introduction was allowed solely for
the purpose of showing the law under which the divorce was granted. Having
thus obtained the admission of the record and the statute for qualified and

restricted purposes, plaintiff's counsel, in their closing argument to the jury,

used these instruments of evidence for the general purposes of their case,
repeated to the jury some of the averments in the petition which assailed the
defendant's character, and put those allegations in juxtaposition with the statute
of Indiana on the subject of divorce, and the testimony of certain witnesses, in
order to produce the impression upon the minds of the jury that the decree of
divorce had been granted on the ground of adultery between the defendant and
Waldron. Indeed, the fact is that the counsel, after referring the jury to the
evidence which was not in the record, stated to them, in effect, that it
established the fact, or authorized the fair inference, that the decree of divorce
had been rendered on the ground of adultery with Mrs. Alexander, and
therefore conclusively established the right of the plaintiff to recover in the
present case. It is unnecessary to say that all this is ground for reversal, unless
its legal effect be in some way overcome. It is elementary that the admission of
illegal evidence, over objection, necessitates reversal; and it is equally well
established that the assertion by counsel, in argument, of facts, no evidence
whereof is properly before the jury, in such a way as to seriously prejudice the
opposing party, is, when duly excepted to, also ground therefor. Farman v.
Lauman, 73 Ind. 568; Brow v. State, 103 Ind. 133, 2 N. E. 296; Bulloch v.
Smith, 15 Ga. 395; Dickerson v. Burke, 25 Ga. 225; Loyd v. Railroad Co., 53
Mo. 514; Wightman v. Providence, 1 Cliff. 524, Fed. Cas. No. 17,630; Martin
v. Orndorff, 22 Iowa, 505; Tucker v. Henniker, 41 N. H. 317; Jenkins v. OreDressing Co., 65 N. C. 563; State v. Williams, Id. 505; Hoff v. Crafton, 79 N.
C. 592; Yoe v. People, 49 Ill. 412; Saunders v. Baxter, 6 Heisk. 377.
20

The foregoing conclusions are not disputed by the defendant here, but she seeks
to avoid their application as follows: First, by denying the right of the plaintiff
in error to raise the question, upon the ground that no exception was reserved to
the misuse by counsel of the evidence which is complained of; secondly, by
asserting that the misuse did not take place, and that the assertion thereof in the
bill of exceptions is erroneous and 'inadvertent'; thirdly, by admitting that use
was made of the various items of evidence mentioned in argument, and
contending that this was not a misuse, because the evidence was legally
admissible for all the purposes of the cause, and was therefore properly so
used; and, finally, by insisting that, even if use was made of alleged facts,
evidence whereof had been expressly excluded, and which were not, therefore,
before the jury, the wrong thus committed by counsel was cured by the final
charge of the court, and therefore does not give rise to reversible error. Without
pausing to consider the palpable inconsistency of these various contentions, we
pass to the consideration of their correctness.

21

The claim that no exception was reserved to the misuse of testimony is founded

on the proposition that as the objection made by defendant to the record and
statute was to their admissibility in any form, or for any purpose, and as they
were admissible to show the fact of divorce, the objection, being general, was
not well taken. To state this argument is to answer it. It is clear that where
evidence is admitted for one certain purpose, and that only, the mere fact that
its admission was not objected to at the time does not aughorize the use of it for
other purposes for which it was and could not have been legally introduced.
The right of the defendant below to object to the perversion and misuse of the
evidence depends upon whether objection was duly reserved thereto, and not
upon whether exception was taken to the admissibility of the evidence which, it
is asserted, was misused. That exception was here taken to the misuse of the
evidence is plain. At the close of the case, when reference was made by one of
the counsel for the plaintiff to the record and to the Indiana statute, and the
other matters connected therewith, the following exception was reserved:
22

'Mr. McCoy, counsel for defendant, further objected to the statements of

counsel for the plaintiff to the jury as to the laws of Indiana and the suit for
divorce and the argument that it must have been granted upon the grounds
alleged in the complaint in the divorce proceedings, which reflected upon the
character of the defendant, Josephine P. Alexander, and then and there duly
excepted to such statements.'

23

It is true that when, in the closing argument for the plaintiff, made by other
counsel, similar language was used and objected to, no exception was reserved.
This, however, is immaterial, as exception was reserved to the language first
used, and this one exception, if well taken, must lead to reversal.

24

The contention that the prejudicial averments in the petition for divorce were
not conveyed to the jury is thus argued: True, the bill of exceptions shows that
they were so conveyed, but, because this statement is in direct conflict with the
rulings of the court, therefore the statement in the bill of exceptions would seem
to be an inadvertence. In other words, the argument is that the bill of exceptions
must be disregarded on the theory that, if the facts stated in the bill be true,
error results, and error is not to be presumed.

25

The remaining suggestions are quite as unsound as the specious one we have
just considered. The divorce proceeding and statute, it is asserted, were
admissible for all purposes, because there was evidence tending to show that
the divorce was inspired by Waldron in connivance with the defendant below,
and because such proceedings were part of the res gestae, etc. Whatever weight
these propositions may intrinsically possess need not be considered, since the
question we are examining is, not whether the divorce proceedings should have

been admitted for the general purposes of the cause, but whether, having been
rejected by the court for such purposes, it was competent for the plaintiff to use
them in direct violation of the restriction placed upon their use. If error was
committed in restricting the use of the evidence, the plaintiff's remedy was to
except thereto, and not to disregard the ruling of the court, and use the evidence
in violation of the conditions under which its admission was secured.
26

We come now to the last contention, which is this: That, conceding misuse was
made of the record and other evidence, yet, as the misuse was corrected by the
final charge of the court, therefore the error was cured. Undoubtedly, it is not
only the right, but the duty, of a court to correct an error arising from the
erroneous admission of evidence when the error is discovered; and, when such
correction is made, it is equally clear that, as a general rule, the cause of
reversal is thereby removed. State v. May, 4 Dev. 330; Goodnow v. Hill, 125
Mass. 589; Smith v. Whitman, 6 Allen, 562; Hawes v. Gustin, 2 Allen, 406;
Dillin v. People, 8 Mich. 369; Specht v. Howard, 16 Wall. 564. There is an
exception, however, to this general rule, by virtue of which the curative effect
of the correction, in any particular instance, depends upon whether or not,
considering the whole case and its particular circumstances, the error
committed appears to have been of so serious a nature that it must have affected
the minds of the jury despite the correction by the court. The rule and its
exception were considered in Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614,
where the foregoing authorities were cited, and the principle was thus stated, by
Mr. Justice Field: 'But, independently of this consideration as to the
admissibility of the evidence, if it was erroneously admitted its subsequent
withdrawal from the case, with its accompanying instruction, cured the error. It
is true that in some instances there may be such strong impression made upon
the minds of the jury by illegal and improper testimony that its subsequent
withdrawal will not remove the effect caused by its admission, and in that case
the original objection may avail on appeal or writ of error, but such instances
are exceptional.'

27

The case here, we think, comes within the exception. The charge made in the
complaint was a very grave one, seriously affecting the character of the
defendant below. The record which was admitted for a limited purpose had no
tendency to establish her guilt of that charge, if used only for the object for
which it was allowed to be introduced. This is also true of the Indiana statute,
and of the other testimony relating to the divorce proceeding. The admission of
the record and other testimony having been thus obtained, in the closing
argument for plaintiff, all the restrictions imposed by the court were
transgressed, and the evidence was used by counsel in order to accomplish the
very purpose for which its use had been forbidden at the time of its admission.

28

Indeed, when the statements made by plaintiff's counsel in opening are

considered, it seems clear that the failure to obtain the admission of the divorce
proceedings in full left the case in such a condition that much of the subsequent
testimony introduced, while it proved nothing intrinsically, was well adapted to
fortify unlawful statements which might thereafter be made in reference to
those proceedings. Thus, the case, in its entire aspect, was seemingly conducted
in such a manner as to render the illegal use of evidence possible, and to cause
the harmful consequences arising therefrom to permeate the whole record, and
render the verdict erroneous. Our conviction in this regard is fortified by the
fact that although the unauthorized use of the evidence occurred in the final
argument of the counsel for plaintiff who first addressed the jury, and was then
and there objected to and exception reserved, the same line of argument, in an
aggravated form, was resorted to by the counsel who followed in closing the
case. Indeed, the language of this counsel invited the jury to disregard the
finding of the court, by looking beneath the facts which were lawfully in
evidence.

29

As the fact of divorce was confessed by the pleadings, and besides was
admitted by counsel for defendant, in open court, we are of opinion that the
divorce record was inadmissible because of irrelevancy. We also consider that
the statute of Indiana was not admissible for any purpose. We have not rested
our decree upon the question of the admissibility of this evidence, because the
mere illegal introduction of irrelevant evidence does not necessarily constitute
reversible error; and hence we have been compelled to consider, not alone the
admission of the irrelevant evidence, but also the illegal use which was made of
it.

30

Judgment reversed, and cause remanded, with directions to set aside the verdict
and grant a new trial.