Smith v. Smith

12 N.H. 80

• Court: Superior Court of New Hampshire
• Decided: July 15, 1841
• Status: Published

Opinion

Parkeb, C. J.

The libel in this case is insufficient. It alleges the marriage of the parties to have taken place in Vermont, where the parties then resided. But it does not allege any removal to, or residence within, this state. Where the marriage was not within this jurisdiction, it should appear upon the face of the libel that the husband had his domicil here at the time, or that by a subsequent removal to this state the libellant obtained a legal domicil here, and resided here at the time when the cause of the divorce occurred.

The proof is also insufficient. There is no affidavit of the libellant furnished. He should state particularly the circumstances attending the desertion of the wife, that the court may judge how far it is without sufficient cause, excuse, or palliation, and whether it was in fact against the consent of the libellant. It is not sufficient for the affidavit to state in general terms that the libellee unnecessarily, and without sufficient cause, abandoned the libellant.

If the desertion has been in consequence of misconduct on the part of the libellant, we may refuse to grant a divorce, the ground of which has been occasioned by the fault of the party applying. In this case, the proof of the libellant must fully show that there were no reasons for the spirit of jealousy, which one of the witnesses says the wife “ commenced cultivating in 1838.”