Lea v. LeaLea v. Lea
The learned counsel for the libellant does not contend that the word desertion, either in its ordinary or techniсal sense, is properly applicable to a case of departure from the society or sеrvice of a person with his knowledge and assent. Certainly in legal phraseology the word is uniformly used to denote a wilful abandonment of an employment or duty, in violation of a legal or moral obligation. A soldier is said to dеsert his post, a sailor his ship, an apprentice his master, when they depart from the service to which they аre bound, without permission or contrary to orders. Admitting such to be the proper and ordinary signification of the word, the counsel contends that it is used in a different sense and is to receive a different interpretation in that provision of the statutes which authorizes this court to grant a divorce “ when one party has deserted another for five years consecutively.” Gen. Sts. c. 107, § 7. But we are unable to see any plausible ground on which the construсtion of the language of the legislature which the counsel urges on our attention can be supported. Certainly there is nothing in the previous history of the legislation on this subject which gives any countenance to the suggestiоn that the legislature intended to give authority to dissolve the bond of matrimony in all cases where a husband or wife hаd departed from the other with his or her voluntary assent. In St. 1838, c. 126, § 1, it was expressly provided that the desertion should be “ without thе consent of the party deserted.” This clause was omitted in St. 1857, c. 228, § 2, for two very obvious reasons. In the first placе, it was superfluous ; the word “ desertion,” as has been already stated, of itself implying that the separation was not with the assent or permission of the party deserted, but the contrary. In the next place, by St. 1857, c. 228, § 2, the legislature intendеd to provide that in two special cases the party deserting might maintain a libel for divorce from the bond оf matrimony; that is, where a party had left the abode of the other on account of bis or her extreme cruelty, or the desertion of the wife was caused by the gross or wanton and cruel negleci
For these reаsons, we are of opinion that no desertion by the wife was proved at the trial, according to the allеgation in the libel. She left her husband with his assent, and, in the absence of evidence to the contrary, the presumption is that her absence was continued under that assent up to the time of filing the libel. The ruling of the court was entirely right, and the order must be, Libel dismissed.