It is provided by section 1758 of the Code of Civil Procedure that the plaintiff is not entitled to a divorce when “ the action was not commenced within five years after the discovery by the plaintiff of the offence charged”. Where the adulterous intercourse is continuous, as under a ceremony of marriage, for instance, the discovery thereof sets such limitation of five years running from that date, for otherwise there would be no limitation in such a case. This obvious interpretation is given to the said provision by Rule 72 of the General Rules of Practice, which in cases of defaults requires proof in 'such cases “ that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff ”.
In August, 1896, the defendant obtained a divorce in the State of Florida by publication of the summons on his wife, this plaintiff, she being a resident of the State of Hew York. The divorce was valid in Florida, and immediately thereafter the defendant married another woman in that State and has continuously cohabited with her as his wife ever since. Cohabitation between Hovember, 1904, and October, 1905, in the city of Baltimore, State of Maryland, where the defendant then resided and has continued to reside, is alleged as the adultery herein, and this action was begun in January, 1906.
The learned trial judge made a finding of fact in substance that the plaintiff knew of the defendant’s divorce, and was informed of the defendant’s re-marriage in October, 1896, by a letter from his mother ; that she had her brother investigate the matter, which he did; that he received letters that the defendant was re-married and living with bis now wife, and thereupon attempted to have the defendant indicted for bigamy in Florida; and that she often wrote and spoke to the defendant’s sisters of the said re-marriage.
The learned trial judge says in his opinion, however, that the *758plaintiff did not have “evidential facts, provable facts”, until within five years, and holds .that the running of the period of limi-' tation does not begin until such facts, i. <?., the common law evidence of the re-marriage and cohabitation necessary to prove the case for a divorce, are collected; that until that time there is no “ discovery ”. ..But this is not the true interpretation of that word. It is not limited to that strict and narrow meaning, but has reference to trustworthy information.- The information and knowledge which the plaintiff had was no mere rumor; on the contrary, she was not only credibly and fully informed, but believed the informa-. tion. Her brother, who was acting in" her behalf, even tried to have the defendant indicted for bigamy for re-marrying. The law gives five years for the plaintiff to collect her or his evidence after such discovery, wliich is a liberal time. It makes no exception where the guilty spouse is a non-resident. The action may be commenced in such a case by publication.
The plaintiff’s case is a hard one, but it is an old and true saying that hard cases make bad law, and that we have to avoid.
The judgment should be reversed.
Jenks, J., concurred.
Judgment affirmed, with costs.