138 Mass. 106 | Mass. | 1884
This is an action to recover for the board of the defendant’s wife and child. The plaintiff contended that the wife was living apart from her husband for justifiable cause;
The principal and decisive question presented by the bill of exceptions is, whether the decree of the Probate Court was, as against the defendant in this case, evidence that, at the time it was rendered, the wife was living apart from her husband for justifiable cause.
It is the general rule that a judgment in one suit is not evidence in another suit, unless the same parties or their privies are, in both suits, litigating in regard to the same subject of controversy. The plaintiff in this suit was not a party, or privy to any party, in the proceedings before the Probate Court. If that court had adjudicated that the wife was not living apart from the husband for justifiable cause, and dismissed her petition, that decree would clearly not be evidence in favor of the husband against this plaintiff. Burlen v. Shannon, 3 Gray, 387. Hubert v. Fera, 99 Mass. 198. And the plaintiff cannot avail himself of the decree as evidence against the defendant. As between the plaintiff and the defendant, the question whether the wife had justifiable cause for separating from her husband is res integra, which has never before been litigated or decided. Grill v. Read, 5 R. I. 343.
The statute provides that, when a wife is in fact living apart from her husband for any justifiable cause, the Probate Court may, upon petition of the wife, prohibit the husband from imposing any restraint on her personal liberty, and may make such orders as it deems expedient regarding the support of the wife and the custody of the children. Pub. Sts. e. 147, § 33. This was designed for the protection of the wife while she remained in the status of a married woman. It does not give the Probate Court the right to decree a judicial separation, and thus to create a new status of the parties. The only judicial separation known to our laws was that created by a divorce a mensa et thora under our old practice. Such a divorce suspended the marriage status, and created a new relation between the parties of a fixed and permanent character, which could only be terminated by the mutual consent of both parties, or by a subsequent decree making the divorce a divorce a vinculo. A decree under this statute has not the elements of a judicial separation. It does not suspend the marriage status ; it affects to a limited extent the rights and duties of the parties, but they remain in the marriage status as before, with all the rights and duties of husband and wife, except
We are therefore of opinion that the decree of the Probate Court is not competent evidence in this case.
New trial ordered.