Batchelder v. Batchelder

Parker, C. J.

The libel is insufficient. It appears on the face of it that the marriage was without this state, and yet it contains no averment that the parties were residents, or ever came to reside in this state. The general description of the parties, as of a certain town and county within this state, does not supply the want of a direct averment, and would not sustain our jurisdiction. 12 N. H. Rep. 80 , Smith vs. Smith; 12 N. H. Rep. 200, 202 , Greenlaw vs. Greenlaw; 13 N. H. Rep. 222, 225 , Kimball vs. Kimball. One of the witnesses testified that the parties came to reside in Hillsborough in the month of August, 1841. The alleged cause of divorce is three years habitual drunkenness. We have uniformly held that the parties must have been inhabitants of this state at the time when the cause of divorce arose. See the cases above cited, and 8 N. H. Rep. 21 , Clark vs. Clark; Ditto 161, Fellows vs. Fellows; 10 N. H. Rep. 61 , Frary vs. Frary. It is not sufficient that they were resident here when the cause of divorce became complete. If, therefore, the parties removed from Massachusetts to Hillsborough in August, 1841, three years of habitual drunkenness have not elapsed, and so no cause of divorce accrued since they became residents in this state.

A rule similar to that laid down by this court in Frary vs. Frary, above cited, in cases of desertion, holds also in cases of habitual drunkenness for three years together, viz. : that there must have been a legal domicil within this state during the whole period fixed by the statute as establishing a cause of divorce.

The proof is also insufficient as to the fact of drunkenness. The witnesses testify in strong general terms that the *382 libellee is an habitual drunkard; but this is not enough. They should have given the particular facts and instances of drunkenness, and left it to the court to judge whether or not they amounted to habitual drunkenness.