
    Edward H. Thurston vs. Martha W. Thurston.
    
      If a decree dismissing a libel for divorce for the desertion of the libellee does not set forth that the dismissal is without prejudice, it is a bar to a subsequent libel of the same libellant for a divorce from the bonds of matrimony for a desertion of the same libellee which began not less than five years before the filing of the former libel.
   Chapman, J.

According to our practice in libels for divorce, the usual form of a final decree against the libellant is, that the libel be dismissed. In this respect it is like a final decree against a plaintiff in equity. If it is not intended to be a bar to a new libel for the same cause, the decree is, that it be dismissed without prejudice. The decree in the former ease was therefore a bar to the present libel, if it is for the same cause.

Whether the cause of complaint be the same in two cases cannot always be ascertained from the pleadings. It is sometimes necessary to hear evidence on the subject. In this case the libel, filed May 19, 1865, for a divorce from the bonds of matrimony, alleges that the libellee, on or about March 1, 1854, deserted the libellant without just cause, and continued the desertion for more than five years consecutively, previous to the filing of the bill. Five years from the alleged time of the desertion would expire in March 1859. The plea in bar alleges that the former libel, alleging the same cause, was filed March 19, 1863, and was dismissed with costs at April term 1863. As time is not material in the allegation of desertion, any act of desertion which began more than five years before the filing of that bill might have been proved in that case, and the decree wou.d bar a new libel for such desertion. But an act of desertion which did not begin in time to have been continued five years consecutively before the filing of that bill could not have been proved in support of its allegations, and a new libel for such cause would not be barred by the decree. In this case, it was not pretended that there was a new desertion which occurred within five years prior to March 19, 1863, and continued less than five years prior to that time, and was continued after that time till five years were completed. The cause of complaint was therefore the same in both cases, and the former decree is a bar to this proceeding. Libel dismissed.

J. F. Pickering, for the libellant.

A. A. Prescott, for the libellee.  