November 13, 1913, the libellant filed a libel for divorce which alleged as ground for divorce cruel and abusive treatment and that the libellee, being of sufficient ability, grossly or wantonly and cruelly refused and neglected to provide a suitable maintenance for the libellant. On this libel no service was ever made on the libellee and no action was taken after the filing of the libel other than the issuance of an order of notice.
On July 22, 1916, the libellant filed a libel on the ground of desertion. There was personal service and the case when tried was uncontested. The evidence disclosed a desertion by the libellee on January 15, 1911, which has continued up to the date of the trial, October 26, 1916.
The only question presented is whether an overt act of filing a libel on the ground of cruel and abusive treatment and of gross, wanton and cruel refusal and neglect to provide suitable maintenance raises a conclusive presumption of fact that the continuance of the desertion after the filing of the libel is with and not without the consent of the party deserted. We think such an act does show necessarily a legal intention not to live with the libellee. Ford v. Ford, 143 Mass. 577.
The entry must be, libel dismissed.
Decree accordingly*