¶1(dissenting):
¶2The plaintiff saw fit to bring an action for separation from her husband. The result was a decree of separation for the term of two years, with a provision for alimony for her support and maintenance, which alimony was paid. It must be *570assumed that she was satisfied with this decree because she did not appeal therefrom. By her own voluntary act, therefore, the plaintiff by a decree of the court established her status of separation from her husband and separated herself from him. After the expiration of two years he ceased separately maintaining her and provided nothing for her support separate from himself. After the decree which the plaintiff had obtained had spent its force by limitation of time she brought the present' action, alleging the same cruel and inhuman treatment which she alleged in her prior action and did not plead that the defendant had abandoned her.
¶3I think under the circumstances disclosed the plaintiff had no right to invoke the ill-treatment which she suffered prior to the decree as a ground for another decree of separation, for those acts had spent their force and as to them the decree was a bar (Fera v. Fera, 98 Mass. 155), and that the learned trial court was entirely right in saying that she could not have another decree except upon facts arising subsequent to her former decree. She could not prove non-support because she did not allege that' as a ground for asking judgment. Even if she could make such proof, having separated herself from her husband voluntarily, it was incumbent upon her to put him, in default by making some demand for support upon him or requesting that he provide a home for her. Even this she did not do.
¶4Very likely the awarding of costs against the plaintiff was an oversight, and I think they should be stricken out. With that modification I think the judgment should be affirmed.
¶5Judgment reversed on law and facts and new trial granted, with costs against defendant.