Vance v. Vance

17 Me. 203 | Me. | 1840

The opinion of the Court was drawn up by

Emery J.

The strict rules of pleading applicable to common law cases have not been followed in libels for divorce. We apprehend that it may become important to adopt a practice of greater particularity, in the allegations in cases of adultery, in order to prevent surprize, and to enable a respondent to prepare for trial.

Where the allegation in a libel is made with the intention to include a chance for establishing delinquency on a certain day, on which the offence is alleged to be committed, and also alleging repetition of the crime between that day and the time of filing the libel, the party prosecuting must be intended to come prepared with every proof properly to be received, bearing on the subjects of complaint. And after a full hearing and trial thereon, followed by a decree of divorce, or dismissal, it must be deemed as conclusive between the parties, as to the allegations. And, like all other judgments, must bind them until reversed.

It would be worse than useless if any other conclusion should result from long and painful investigation, pressing heavily on the characters of all concerned. As a consequence, the attempt to call up the investigation again, under the pretence that there was some instance omitted within the periods alleged, cannot be entertained, so far as to receive evidence of transactions between the times which have passed into judgment.

But in this case we have come to the opinion that the. new libel covers time between the filing of the former libel and the filing of the last.

To so much, the brief statement, or plea of the respondent, does not, by shewing the former judgment, furnish an adequate bar. It is not in the plea averred that the second libel is for the same cause of complaint as the first. And therefore we cannot absolutely conclude that it is so. And the demurrer must be regarded as admitting no more than is alleged.

We do not consider that this is a petition for a new trial of the former libel. Nothing of the kind is asked. The statement that new evidence is discovered, appears to be alleged rather by way of apology for introducing into the second libel, offences, supposed to be committed within the time, which before had been in contestation. There is not such a representation of the newly discovered evidence in particularly describing the witnesses by name, and what they are expected to testify, and the grounds of belief that they will so testify, and when the petitioner became informed of the testimony, as is requisite in order that the Court should entertain it as a petition for a new trial.

The respondent has therefore not presented a bar to the libel, and the exceptions must be sustained. To the allegation of the offence between the 20th of June, 1836, and the 5th day of April, 1838, the respondent must answer.