Elwell v. Elwell , 32 Me. 337 ( 1850 )

Tenney, J.,

orally.—This is a petition for a divorce under the statute of 1849, c. 116. The libel contains allegations of various kinds of ill-treatment on the part of the husband towards the wife; such as compelling her to labor out of doors, bring in wood, and water; take care of his cattle in the winter, during his absence ; and do other things unsuitable to female habits and capacities. It is also stated, that he was ill-tempered, and abusive to her and her children, and neglected, though abundantly able, to make suitable provision for their support. The result was, that the parties separated; and the feelings, temper and spirit of the husband are alleged to remain so unchanged, that the parties can never live together again. ' All the grievances set forth had existed for a long time prior to the statute of 1849.

On the part of the libelee it is said, that the statute of 1849 cannot apply to this case, because it was not designed to be retrospective in its effect. We have come to a different conclusion, in our construction of that statute; and have granted divorces under it, without any reference to the date of the causes alleged.

But it is further contended that, as there is no repealing clause in it, the provisions of the Revised Statutes, c. 89, are still in force ; and that all cases that come within those provisions, must be determined by them.

We have already decided, (Motley v. Motley, 31 Maine, 490,) that the statute 4of 1849 does not repeal any part of the 89th chapter of the Revised Statutes. Under the statute of 1849 no one can claim a divorce, except as a matter of discretion. But under the former statutes, any one coming within their provisions may claim a divorce as a matter of right. Both statutes are therefore still in force. It is provided in chapter 89, § 6, that “ a divorce from bed and board may be granted, for the cause of extreme cruelty; or whenever the husband shall grossly, or wantonly, and cruelly neglect or refuse to provide suitable maintenance for • his wife, he being of sufficient ability.” Such a divorce is not prayed for here, and therefore cannot be granted.

Libel dismissed.