WILKINSON vs. WILKINSON

WILKINSON vs. WILKINSON. Twelfth Judicial District Court, August, 1857. Divorce—Residence—Intemperance. The domicil of the -wife ia with the husband, as decided in Kashaw vs, Kashaw. A party applying for divorce on the ground of habitual intemperance, must show conclusively that the habit exists at the time of the application. This was an action brought for divorce on the ground of" intemperance on the part of the husband, in the State, of Massachusetts. Itappears that the wife- resides in this' State, and that the husband is in the State of Massachusetts, and that she left him in the year 1855. There was no evidence to show desertion on the part of the husband, nor .any evidence of his being at the present time an intemnerate man. B. B. Dawson, for plaintiff. Defendant not in Court. [MAJORITY — Norton, J.] Norton, J. remarked, in delivering an oral opinion in Court, that., the Supreme Court of the State had decided, in Kashaw -vs. Kashaw, 8 Cal., 812, that the domicil of the husband was the domicil of-.the wife; and'applying that rule, in the absence of evidence of desertion on the part of the husband, it was to be presumed that her .domicil was still with him, in the State of Massachusetts, and consequently she could not maintain this action, not having resided In this State six months, according to the decision of the case of Kashaw us.-Kashaw. The intemperance proved had existed many years since,, and it was incumbent on the applicant-for divorce, upon that ground, to prove the .continuance of the offense, inasmuch as it is one of those-habits which might be discontinued, and- the defendant in this case, at the present time, may not be df intemperate habits. The desertion, as established, was on the part of the wife, she having left her husband. Upon these grounds the divorce was refused.