The question presented by this report is whether a husband who has sued for a divorce for desertion, and, failing to prove the cause assigned, has had his libel dismissed generally, can afterwards sue for and obtain a divorce for the cause of adultery, committed and known to him before the filing of the first libel, and which he shows no reason for not having then assigned as a ground of divorce.
The court is of opinion that he cannot. Good faith and justice required the husband, if he intended at any future time to rely on the graver charge, to suggest the fact before his first libel was dismissed, so that the court might, if thought consistent with the interests of the parties and of the public, order the dismissal to be without prejudice to a subsequent libel, and the libellee might take measures to preserve any evidence material to her defence. The husband, not having done this, or shown any reason for not doing it, must be deemed to have waived any right to a divorce depending exclusively upon facts existing and known to him at the time of his first application to the court. If he had discovered any new evidence, or the wife appeared to have been guilty of any misconduct, since the dismissal of the first libel, the case would have stood in a different position. Mortimer v. Mortimer, 2 Hagg. Consist. 310. Green v. Green, L. R. 3 P. & D. 121. Williamson v. Williamson, 1 Johns. Ch. 488. Vance v. Vance, 17 Maine, 203. Clement v. Kimball, 98 Mass. 535. Kdgerly v. Edgerly, 112 Mass. 53. Libel dismissed.