IN THE MOOT COURT.
Coram Gray, J.
Joseph Fraine v. Matilda Fraine.
LIBEL for divorce on the ground of desertion, filed Feb. 19, 1886. The libel was undefended. At the hearing it appeared that the parties were married in 1879; that on Jan. 10, 1882, the libellee deserted the libellant, and had continued away from him to the time of filing the libel; that in March, 1885, the libellant discovered evidence tending to show adultery on the part of the libellee; that in May, 1885, he filed a libel against her on the ground of adultery, to which she filed an answer, which libel is still pending.
The libellant testified as a witness. He was asked by the judge whether he would have taken the libellee back at any time before the filing of the libel. He said he would have taken her back at any time before he discovered the evidence tending to show her adultery, but that he would not have taken her back after that time. There was no evidence that he had ever said this to the wife.
The judge reserved the case for the determination of this court.
A statute provides that a divorce from the bond of matrimony may be decreed, among other causes, for adultery, and for “desertion continued for three consecutive years next prior to the filing of the libel.”
The Attorney-General appears under a statute providing that he intervene to oppose the granting of any libel undefended by the libellee.
H. M. Williams and J. V. Bonnett for the Libellant.
S. Williston and E. G. Brooks for the Attorney-General.
Gray, J. Whether a secret determination by a husband, whose wife has left him, not to take her back, would, if proved, defeat a libel against her for desertion, or whether a like determination expressed to a third person would have that effect, it is unnecessary in this case to consider; for the filing and service of the libel for adultery was a declaration to the libellee of the most solemn kind that her husband would not take her back. If not absolutely incompatible with a willingness to receive her, it must be deemed so in the absence of countervailing evidence, of which there is none here. Nor does the libellant much dispute this position.
But he contends that if a wife who has deserted ber husband has a fixed intention not to return, whatever her husband’s wishes, the desertion continues, although the husband has declared that he will not take her back; and for this the libellant relies on Hewes v. Hewes, 7 Gray, 279, where, on an undefended libel, it was held that a man had deserted