The wife alleges that she deserted her husband, and that the desertion was caused by his extreme cruelty and by his gross, wanton and cruel neglect to provide suitable mainte*495nance for her. In the former case of Lea v. Lea, 8 Allen, 418, the husband sought a divorce on the ground of the same act of desertion by the wife which she relies on in this case. She then denied that it was legally such a desertion as entitled him to a divorce, setting up his wrongful acts in justification. The court instructed the jury that, if they should find that the respondent left her husband with his approbation, wishes or consent, it did not constitute a desertion in law. It does not appear whether the verdict for the respondent in that case was rendered upon the ground that the desertion was caused by cruelty, &c., or that it was by consent. Either would have been a sufficient defence, because this court then decided that under the St. of 1857, c. 228, § 2, (Gen. Sts. c. 107, § 7,) as well as under the St. of 1838, c. 126, a divorce for desertion can be granted only when the separation has been caused by the wrongful conduct of the party against whom the divorce is sought. A party, therefore, who has caused the separation by his cruelty, neglect, or consent thereto, cannot charge it upon the other as a desertion which entitles him to a release from his obligations. But the statute expressly authorizes the party withdrawing from the marriage relation, on account of cruelty or neglect, to obtain a divorce after five years. The application of the term “ desertion ” to such a withdrawal must be understood with reference to the subject matter of the provision, and the term, in that connection, interpreted accordingly. Desertion, in the sense of separation, is the condition of a divorce in either case. It is granted against the party whose wrongful conduct caused the separation ; and refused to such party, when applying for ijf, although the other party has withdrawn from his society, and, in that sense, deserted him.
Some ambiguity arises from the language of the first clause of the section, which seems to authorize a divorce “ in favor of either party.” But the effect of this language is controlled by the terms of the proviso; and, as already seen, the interpretation derived from the whole of the section, aided by reference to the preceding legislation upon the subject, is, that the divorce is granted against but not in favor of the party by whose wrongful conduct the separation was caused.
*496When the separation is by mutual consent, neither party car. obtain a divorce. But the voluntary withdrawal of the wife, induced by cruelty or neglect of the husband, is not such consent as would deprive her of the right to a divorce, even if the husband should accompany his cruelty or neglect with permission for her to depart from his house and society.
The question then recurs as to the effect of the verdict and judgment in the former case. The present respondent contends that the result of the first suit was to disprove the fact of desertion by the wife ; and that such finding is conclusive upon her in this proceeding; that the desertion by her, required for the purposes of this suit, must be of the same character as would be required to be shown as ground of a divorce in favor of the other party. But such a construction would render the provision for a divorce, in favor of the party deserting, entirely nugatory. The construction already indicated, that in all cases of separation a divorce may be granted against the party in fault in favor of a party who is not chargeable with fault therein, gives to the whole section consistent operation and effect.
The issue tried in the former suit was not merely upon the bare fact alleged, of desertion for five years by the wife, but upon that question modified by her grounds of justification; namely, cruelty, neglect to provide, and consent. It does not follow, because the only question brought up by the exceptions in that case related to the ground of consent, that the judgment or the verdict of the jury was rendered upon that ground. It might equally have been upon the ground either of cruelty 01 neglect, and in that case would be entirely consistent with the position of the libellant in this case. Indeed, if it could be made to appear to have been rendered upon either of the latter grounds, it would seem to be conclusive in her favor upon that part of her case. But there are no means of determining upon which of the three consistent grounds of defence the verdict was rendered ; and therefore it cannot be conclusive upon either.
Case to stand for trial upon all the allegations of the libel