
    Charles Forston v. Martha Forston.
    Divorce — Limitation of Action For.
    Where, by a petition it is shown, that, abandonment without cohabitation, was not within the limit of one year, it is not an available error that costs were awarded against him.
    Same.
    After the discovery later of the defect in pleading, it should have been amended to conform to- proof of the abandonment.
    APPEAL FROM WOODFORD CIRCUIT COURT.
    
      September 20 1870.
    
      Porter & Greathouse, for appellant.
    
    
      Turner & Twyman, for appellee.
    
   Opinion op the Court by

J udge Peters :

By the imperative language of the statute to entitle appellant to a divorce from appellee, the abandonment on her part must have been for tbe space of one year without cohabitation. 2 R. S., 17.

Tbe doctrine on tbe subject of condonation does not apply to this case, as tbe relief can only be granted on tbe terms prescribed by tbe statute. As at tbe time of tbe trial of tbe suit appellant was not entitled to tbe relief be sought, by reason of tbe want of sufficient allegations, it is not an available error that costs were awarded against him. If appellant bad amended bis petition after one year bad expired from tbe last abandonment, which was in August, 1868, and charged tbe abandonment on ber part then to bave been over one year, without cohabitation, there is no reason appearing in tbe record which should bave defeated him in bis suit. But as be failed to amend, and tbe dismissal of bis suit on tbe grounds stated in tbe judgment will not bar a subsequent suit for a divorce, tbe judgment must be affirmed.  