
    HARMAN vs. M'LELAND.
    APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. LANDRY, THE JUDGE OF THE SIXTH PRESIDING.
    An action for a divorce, based on abandonment of the husband, cannot be maintained, until a decree of separation of bed and board be rendered two years previous to the application for a divorce, with proof of abandonment for five years.
    The admission or confession of the husband, that he lives with another woman, in a foreign country, is insufficient evidence to authorize a divorce and to dissolve for ever the bonds of matrimony.
    The mere acknowledgment of the truth of the facts alleged, made by either of the parties, even in an authentic act, can never be deemed sufficient foundation for a decree of separation from bed and board ; a fortiori, of a divorce.
    This is an action of divorce. The plaintiff, Lydia Harman, alleges, that in 1828, she was lawfully married to the defendant, James W. M'Leland, and that they lived together until 1830, when some time in that year her husband left her and now resides in Texas, where he has intermarried with another woman. She prays for a divorce dissolving the marriage.
    
      An action for a divorce, based on abandonment of the husband, cannot be maintained, until a decree of separation of bed and board be rendered two years previous to the application for a divorce, with proof of abandonment for five years.
    There was a curator ad hoc appointed to represent the defendant, who pleaded the general issue.
    The evidence showed that the parties had not lived together since 1832, and that the defendant resided in Texas ,and had been absent from his wife four or five years. A letter of defendant, written from Texas to one of his brothers, in September, 1838, states, that he has a wife in that country, but will not bring her to see his relations, “ as her company might not be agreeable to them all.”
    The judge presiding was of opinion the evidence was insufficient to authorize a divorce, gave judgment dismissing the suit. After an unsuccessful attempt to obtain a new trial, the plaintiff appealed.
    
      Linton and Garrett, for the plaintiff.
    
      Morse, contra.
    
   Simon J.,

delivered the opinion of the court.

This is a suit for a divorce. The petition only states that defendant, without any cause, has deserted the petitioner, and resides in Texas, where he has intermarried with another woman. A curator ad hoc was appointed to represent the absent defendant; issue was joined, and after hearing the evidence, the district judge dismissed the action. From this judgment, plaintiff appealed.

The evidence shows that the defendant has been absent for four or five years in Texas, and that he has not lived with his wife since 1832. Plaintiff produced also a letter of the defendant to his brother, in which he mentions his having a wife in Texas, and in which he says that he will come and spend the summer with his mother, but that he will not bring his wife with him, as her company would not be agreeable, &c. &c.

If this action is based on abandonment on the part of the husband, it cannot be maintained. The law requires certain formalities, which must be fulfilled, a decree of separation of bed and board, to be rendered two years previous to the application for a divorce, and the proof of abandonment for the space of five years. Moreau's Digest, vol. I, page 412'.

The admission or confession of the husband that he lives with another woman in a foreign country, is insufficient evidence to authorize a divorce and to dissolve forever the bonds of matrimony.

The mere acknowledgement of the truth of the facts alleged made by either of the parties, even in an authentic act can never be deemed sufficient foundation for a decree of separation from bed and board \a portion of a divorce.

If this demand is founded on adultery, we think the evidence is not sufficient to support it; as, even admitting that á charge of adultery in a foreign country, could be made the basis of an action for a divorce in this state, the only proof thereof results from a letter of the defendant, which is used here as an admission of the fact. In such serious matters, the law requires more than the simple confession of one of the parties to dissolve forever the bonds of matrimony between them; facts must be shown, and such facts as will authorize a court of justice to declare that the interference of the law is absolutely necessary. The judgment must be rendered “ en grande connaissance de cause,” as Pothier says; and the mere acknowledgment of the truth of the facts alleged, made by either of the parties, even in an authentic act, can never be deemed sufficient to be the foundation of a decree of separation of bed and board, and a fortiori of a divorce. Pothier, Contrat de Marñage, vol. 2, Nos. 517 and 518. Were it otherwise, it would be easy and perhaps sometimes convenient for married persons to become separated or divorced by mutual consent, and such doctrine would be very mischievous in its consequences. The judge a quo did not err in rejecting the plaintiff’s demand.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.  