The decision upon this libel depends upon the validity of the divorce obtained by the respondent in the state of Illinois. And that depends upon the- decision of the question, whether the court by which the decree of divorce was made had jurisdiction of the cause and the parties.
It appears from the report that the parties removed from Massachusetts to Illinois in 1855, and lived there together as husband and wife until February 1859, “when the libellant, under circumstances as to which there was no evidence,” returned to Massachusetts, and remained in this commonwealth up to the time of filing her libel. The respondent continued to be a citizen of the State of Illinois, and the domicil of the husband was in law the domicil of the wife. Greene v. Greene, 11 Pick. 410. Harteau v. Harteau, 14 Pick. 181. Barber v. Barber, 21 How. 582. No fact appears xyhich would show that the wife had changed her domicil in Illinois, or had any capacity to change it, when he filed his libel against her. The mere fact of her residence in this commonwealth, separate from her husband, whether with or without his consent, has no tendency to establish such a change of domicil; and there is no proof that the husband had done any act entitling the wife to a divorce, so as to affect her domicil even for the purpose of obtaining a divorce from him..
When the respondent filed his libel in Illinois, therefore, both *200parties had their domicil in that state, and were subject to the jurisdiction of the court in which the libel was filed. The notice given to the respondent in that suit was such as the laws of Illinois authorized in the case of an absent defendant; and such as by the laws of this commonwealth is made valid and sufficient in like cases. The decree of a court having jurisdiction of the cause and the parties is conclusive upon them.
But this libellant now alleges that the decree for divorce in Illinois was procured by fraud; and the evidence reported has some-tendency to show that the separation was by his consent, and so was not the desertion upon which his libel was founded. But the fact of desertion was conclusively settled between these parties by the judgment in Illinois ; and it is not now competent for the libellant to offer evidence to contradict that judgment. Greene v. Greene, 2 Gray, 361.
The provision of our statute, that “ when an inhabitant of this state goes into another state or country to obtain a divorce for any cause occurring here, and whilst the parties resided here, or for any cause which would not authorize a divorce by the laws of this state, a divorce so' obtained shall be of no force or effect in this state,” (Gen. Sts. c. 107, § 54; Rev. Sts. c. 76, § 39,) has no application to the case before us, because, when the respondent first went to Illinois, there is no evidence that he had any intention of procuring a divorce; and when he returned to Illinois in 1860, he was not an inhabitant of Massachusetts. “ In all other cases, a divorce decreed in any other state or country according to the laws thereof, by a court having jurisdiction of the cause and both the parties, shall be valid and effectual in this state.” Gen. Sts. c. 107, § 55.
The divorce which the respondent obtained in Illinois ia therefore a bar to the maintenance of this libel.
Libel dismissed.