142; Prather v. Prather, 4 Dessaus. 33; Rhame v. Rhame, 1 McCord Ch. 197; Glover v. Glover, 16 Ala. 446. The dissenting opinion held that equity had no such jurisdiction, because the statute only allows alimony upon and in connection with divorce, hence alimony is dependent upon and incidental or auxiliary to an action pending for divorce, and there is no independent jurisdiction to grant it alone, and, because, on reason and authority English and American courts of equity have no original jurisdiction of this subject, and can only grant alimony as derivative from and incidental to some other original subject of jurisdiction: cit ing Clancy 549; 2 Bishop, sect. 351; 2 Story Eq., sect. 1422; Chapman v. Chapman, 13 Ind. 397; Shannon v. Shannon, 2 Gray 285; Sheafe v. Sheafe, 4 Fost. 567; Parsons v. Parsons, 9 N. H. 309; Doyle v. Doyle, 26 Mo. 549. But this court has not gone so far as to decree alimony after a divorce.

It should be kept in view that from the ruling of granting alimony as a separate maintenance, developed the doctrine of granting it as an independent proceeding after divorce, hence, if the premises in the former are not correct the latter doctrine is not correct. In no state is this view presented better than in Kentucky. The courts in this state assumed original equity jurisdiction, (Lockridge v. Lockridge, 3 Dana 28; Boggess v. Boggess, 4 Id. 307; Wooldridge v. Lucas, 7 B. Mon. 49; Butler v. Butler, 4 Littell 205; Rogers v. Rogers, 15 B. Mon. 364; Hulett v. Hulett, 80 Ky. 356), and for a long time confined the doctrine to separate maintenance-that is, to granting alimony as a separate maintenance-leaving the marriage still existing, and afterwards extended it to alimony after a divorce. In Butler v. Butler, the court held that equity had jurisdiction, regardless of the statute, to decree alimony, leaving the matrimonial chain untouched, because the husband is bound to support his wife. If he fail, it is a wrong acknowledged at law, but for which the law provides no remedy, and therefore equity must furnish the remedy where law and conscience acknowledge the right but give no remedy for its violation. The contrary doctrine "arose in England for fear of intruding upon the ground occupied by the ecclesiastical courts. These courts were incorporated with and composed a part of their government, and their sentence was as obligatory and as much noticed in their civil courts as the decisions of other courts, and it became necessary to restrain other courts from occupying the same ground. But in this

country there are no such courts or boundaries. The reasons for refusing jurisdiction here have ceased and do not exist." If our chancery courts would not assume such jurisdiction "grievous wrongs might exist without remedies until the legislature interfered, which is against a well-known principle ripened into a maxim." The court in this case reviewed the English cases and deemed them conflicting. But in none of these cases can it be found that the reason for the doctrine was that equity refused jurisdiction because the ecclesiastical courts possessed it. On the contrary, it is distinctly asserted that the reason was that no court had original jurisdiction of this matter alone, but had it as incidental to other subjects of jurisdiction. Subsequently this court, in Rogers v. Rogers, applied this rule to alimony after divorce. In that case husband and wife were domiciled in Kentucky, and the husband sued in this domicile for divorce on the ground of abandonment and obtained it. The wife appeared and defended, but did not ask and was not given alimony. Some years thereafter both became residents of Ohio, and the wife commenced in the Ohio court a suit for divorce and alimony, alleging fraud in the Kentucky proceedings, to which the husband pleaded the Kentucky divorce as a bar. The Ohio Common Pleas Court held the divorce in Kentucky valid, but as that court made no support or provision for the wife, and the propriety of doing so was not adjudicated, a decree for alimony was granted. Suit was brought in Kentucky on this judgment for alimony, to which was pleaded the Kentucky divorce, and also that the Ohio court had no jursidiction to decree alimony, and hence the judgment upon which the suit was brought is null and void. Upon this question the Kentucky Supreme Court held that the Ohio decree for alimony was valid, because it was not shown that it was void for want of jurisdiction over the subjectmatter or the person, or void because it was fraudulently procured, or that the same matter had been previously litigated between the same parties in a court of this state. In explanation of this the court said, "If the Kentucky decree of divorce had the effect of absolving the husband and his estate from all liability no alimony can in this case be allowed. But the right to alimony did not depend upon the granting of the divorce; it depended on various other matters, such as the nature of the cause for divorce, the husband's estate, &c. None of these were presented or considered in that proceeding. After that divorce was granted the wife could

have presented her claim for alimony, which the court would still have the power to decide, notwithstanding a divorce had been granted. It was the decree for divorce which created a cause for the alimony. That the wife failed to present her claim for alimony in the Kentucky divorce proceeding made no difference. That matter was not rendered res adjudicata by the failure, and consequently the Ohio court did not undertake to re-try any question involved in the Kentucky proceeding." "If it be conceded that by the wife's failure to claim and obtain a decree for alimony in the divorce proceeding she is precluded from asserting it in another action, this would not make the Ohio decree for alimony invalid. It could only be erroneous, and until reversed, it would have the same effect as any other decree." The grounds upon which this decision is based, and the reasons for it, are not satisfactory, and seem to be in contravention of the current of authority and principle.

The courts of Mississippi have taken both sides of this question. In Shotwell v. Shotwell, 1 Smedes & Marshall, ch. 51, decided in 1843, the Circuit Court, on the wife's application, decreed a divorce. Alimony was not asked, because of the statute limiting jurisdiction of Circuit Courts to $500. Subsequently the wife sued in the Superior Court of Chancery for alimony alone, alleging the previous proceedings in and the decree of the Circuit Court. The husband demurred on the ground, that upon principle and under the statute, alimony is incident to and dependent upon the decree of divorce, and as no decree for alimony was made in that proceeding a separate bill therefor cannot be maintained. The statute provided that, when divorce is granted the court may grant such alimony as is just and proper. The court overruled the demurrer, stating that whilst it is usual to make the decree for alimony concurrent with the divorce or in the same proceeding, yet the omission cannot affect the wife's right to seek alimony at a subsequent time, by a separate and distinct proceeding and in another court of competent jurisdiction; that alimony is a separate and distinct right resulting from a decree of divorce, but not identical with it, nor necessarily constituting one proceeding. "I am of opinion (said the court) that a separate suit may be maintained for alimony after a decree for a divorce in which such claim was omitted, if there was no express act of the wife waiving her right thereto. If, therefore, a separate bill can be maintained, I can see no reason why it may

not be brought in any court having jurisdiction without regard to the court which granted the divorce, there is nothing in the nature of the proceedings which would limit it to the latter court; because "the wife's right to alimony proceeds upon the moral and legal obligation of the husband to furnish her with a competent support, and does not depend upon the point of time at which she attempts to assert it. The right is founded in the very nature and legal incidents of the marriage contract, hence it is if the husband, by cruelty or misconduct, compels the wife to force herself from him, the courts will enforce this obligation by compelling him to set apart a portion of his estate for her support."

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This decision was reversed by the Court of Errors and Appeals (Lawson v. Shotwell, 27 Miss. 630 (1854)), the court stating that, "the authorities, almost without exception, agree that alimony is allowed only as an incident to some other proceedings which may be legally instituted by the wife against the husband, such, for instance, as an action for the restitution of conjugal rights, divorce, &c." But, said the court, we do not intend to intimate that there may not be cases in which an original bill, after a decree for a divorce, could not be maintained for alimony, but only that the present bill shows no sufficient reason for not taking or asking for alimony in the Circuit Court. A good reason must be alleged why the alimony was not at the proper time allowed. What will be a good reason must depend upon the facts of the case when presented." This last statement was made in consequence of misconstruing the jurisdiction of the Circuit Court, intimating that if the plaintiff had not purposely omitted the application for alimony in the divorce proceeding, another construction might be made. This was followed by Bankston v. Bankston, 27 Miss. 692, affirming the doctrine that chancery had no original jurisdiction, holding that the court decreeing the divorce had the only power, and as it did not decree final alimony a separate suit for alimony was not maintainable. And this appears to be consistent with the Mississippi statute (Code sect. 1159), providing that when the divorce is decreed, the court shall then make the orders concerning alimony.

The Pennsylvania courts (McKarracher v. McKarracher, 3 Yeates 56), held the reverse of Lawson v. Shotwell, holding that the failure of the wife to claim alimony in the proceedings for divorce was no bar to a further application for that purpose.

In South Carolina (Jelineau v. Jelineau, 2 Dessaussure 45; Prather v. Prather, 4 Id. 33; Threewits v. Threewits, Id. 560; Prince v. Prince, 1 Rich. Eq. 282) the courts exercise the jurisdiction to grant a separate maintenance but term it alimony. The decisions have not gone so far as to decree alimony after a divorce a vinculo, probably because divorces of this character are unknown there, yet the decisions granting separate maintenance intimate that the same rule would be applicable in all cases. In Tennessee alimony was granted after a legislative divorce: Richardson v. Wilson, 8 Yerg. 67. In that case the legislature granted the divorce a vinculo, but reserved to the wife all right to alimony if, by law, she should be entitled. The wife filed her petition for alimony, and the court granted it, stating that it had power to take up the question where the legislature left it; that alimony would have been granted if the bill had not contained this reservation; and that the right of the wife to a support from her husband was a constitutional right which the legislature could not take away by a divorce bill, passed ex parte and without notice to her. This case decided the point that alimony would be allowed after a legislative divorce with a reservation as to alimony. The balance was dictum. This case can be supported on two grounds: 1st, that the reservation in the act is the same as a reservation in a decree of divorce, and the granting of the alimony, in such case is allowing it in the same proceeding; 2d, that the husband's ex parte divorce cannot destroy the wife's right to alimony, because it would be perpetrating a fraud, and because such decrees are not jurisdictional under the laws giving credit to foreign decrees: Prosser v. Warner, 47 Vt. 667; Hoffman v. Hoffman, 46 N. Y. 30; Shannon v. Shannon, 4 Allen 134; Smith v. Smith, 13 Gray 209; Leith v. Leith, 39 N. H. 20.

Some

In Ohio (Cooper v. Cooper, 7 Ohio, 2 pt. 594; Mansfield v. McIntyre, 10 Ohio 30; Cox v. Cox, 19 Ohio St. 502; 20 Id. 439,) the question has not been settled. In the latest case, Cox v. Cox, the husband and wife were domiciled in Ohio. The husband deserted his wife, went to Indiana and obtained a divorce. time after the desertion the wife applied in the place of her domicile, Ohio, for divorce and alimony. The husband pleaded the Indiana divorce as a bar. On appeal the court held that the domicile of the wife remained unaffected by the desertion of the husband, and that the Indiana decree of divorce was no de