Upon a consideration of the cause of the decree of divorce nisi and the other facts stated in the record of that decree and the admitted fact that the parties had lived separate *496for three consecutive years afterwards, and the omission of the libellee at this hearing, after personal service and appearance, to introduce any evidence affecting the question, it was within the discretion of the court, under the St. of 1870, c. 404, § 3, to make the divorce absolute, without requiring any further evidence from the libellant.
The evidence offered by the libellee, tending to prove that he did not neglect to maintain his wife and did not contract habits of intoxication, as alleged in the original libel, was rightly rejected as incompetent, because it directly contradicted the facts conclusively settled between the parties by the former decree. Edgerly v. Edgerly, 112 Mass. 53.
The further request of the libellee to be allowed to be heard on the merits of the original libel was only made as incidental to his motion to open the former decree; and as that motion was not supported by any evidence of fraud in obtaining the decree, and was made long after the expiration of the term at which the decree was entered, the court rightly refused to entertain it. Greene v. Greene, 2 Gray, 361. Lucas v. Lucas, 3 Gray, 136. Edson v. Edson, 108 Mass. 590.
The case having been decided by a single justice upon full hearing of the parties, and reserved for the determination of the full court, before the passage of the St. of 1873, e. 371, repealing in part the provisions of the St. of 1870, the decree should be made absolute as of the time of his decision. Springfield v. Worcester, 2 Cush. 52. Kelley v. Riley, 106 Mass. 339.
Decree made absolute.