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support his wife in a manner contrary to law. The husband is not compelled, under the law, to support his wife but in cohabitation, unless he consents that she shall live separate, or commits some matrimonial offence entitling her to refuse cohabitation. If he bas done either of these she can pledge his credit for her temporary separate maintenance. If something more is wanted, she can obtain a permanent provision concurrent with a separation. To decree a separate provision or alimony without a separation is against public policy.

An adjudication allowing the wife to live separate from the husband, is a necessary foundation for an adjudication compelling him to support her in a separate state.

Cohabitation is the state and condition which the law imposes, and for which marriage was instituted. This state or condition must exist until the law allows a separation, hence the court must first adjudge a separation before it can adjudge a support during that separation. The first question is, shall cohabitation cease to exist (temporarily or permanently), and when this is determined the question of support or alimony arises. This is the first question whether the application be for alimony alone, or divorce and alimony, and it follows that if the court has no jurisdiction over the one question it can have none over the other; the one is concurrent and commensurate with the other, and neither exists without the other.

Notwithstanding the foregoing proposition and the reasons for it, there are cuses holding the reverse of what has been stated.

In O.renden v. Orenden, 2 Vern. 493, the chancery court, on an independent application, granted a separate maintenance, and also in Nicholls v. Danvers, 2 Vern. 671, decreed to the wife for her separate maintenance funds in the husband's possession which came to her from her deceased mother's estate. In Williams v. Callow, 2 Vern. 752, the chancery court, upon an application for a separate maintenance alone, decreed the interest of a trust bond given for the wife's portion. In these cases there was neither a divorce nor an agreement to live separate.

The same rule was held in Lasbrook v. Tyler, 1 Cha. R. 44, and Watkyns v. Watkyns, 2 Atk. 96; Duncan v. Duncan, 19 Ves. 594; 1 Fonb. Eq. 94, 104.

On the other hand Lord LOUGHBOROUGH, in Ball v. Montgomery, 2 Ves. 195, said that he did not recollect any such cases as were cited froin Vernon, and asserted the broad doctrine that a marHindley

ried woman should not be a plaintiff in a suit in equity for a Separate maintenance, and no court had original jurisdiction to award it. This ruling was followed in Stones v. Cooke, 7 Sim. 22; Vandergucht v. De Blaquisere, 8 Id. 315.

Story's Equity Jurisprudence seems to have asserted both sides of the question. In one section (1422), it is asserted that, although it is the duty of the husband to provide a suitable maintenance for his wife, it is not a duty, to decree separate maintenance only, of which equity will assume jurisdiction : citing Ball v. Montgomery, 2 Ves. 195; Head v. Head, 3 Atk. 550; Legard v. Johnson, 3 Ves. 359; Clancy 549; Foden v. Finney, 4 Russ. 428; Galland v. Galland, 38 Cal. 265. If the husband does not provide suitable maintenance, the proper remedy is by an action against the husband by any person who has supplied her with necessaries : citing Guy v. Pearkes, 18 Ves. 196; Harris v. Morris, 4 Esp. 41; Hodges v. Hodges, 1 Id. 441; Bolton v. Prentice, 2 Stra. 1214;

v. The Marquis, 6 B. & C. 200; Eames v. Sweetser, 101 M1 ass. 78; and if this reliance for support should be precarious, the wife may make an application to the ecclesiastical court for a decree à menså et thoro, or for a restitution of conjugal rights apon which a suitable separate maintenance may be allowed : citing Ball v. Montgomery, supra; Clancy on H. & W. 549; 1 Fonbl. Eq., ch. 2. But in America equity will, in such cases, decree a wife a separate maintenance, upon the ground that there

adequate or sufficient remedy at law: citing Purcell v. Purcell, 4 Hen. & Munf. 507; Patterson v. Patterson, 1 Halst. Ch. 389, which do not support the text. The remedy at law here referred to means the action by a third person against the husband for necessaries supplied to the wife ; yet in the succeeding section it is asserted that equity has not general jurisdiction to decree sepa

maintenance out of the husband's property, except on agreement, &c., but may out of her own equitable estate.

This English doctrine of alimony or separate maintenance was limited to supplicavit, agreement, and upon a divorce à menså et

It was carried into the jurisprudence of some of the states, and extended to awarding alimony upon an independent application,

without being connected with a divorce, and ultimately to granting it after a divorce a vinculo in an independent proceeding, and whether it had been previously asked or not. This jurisdiction in

states was assumed and exercised on the ground that it

is no

rate

thoro.

and

belonged to the general jurisdiction of equity, although there existed no ecclesiastical courts. It can thus easily be seen how this jurisdiction originated and grew. Equity decreed the separate maintenance as an incident to some other subject-matter of which equity had original jurisdiction. The ecclesiastical courts decreed it as incident to divorce, and neither, except during the Cromwellian period, decreed it on an independent proceeding as a substantive subject of jurisdiction.

In Alabama, California, Kentucky, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee and Virginia, and possibly Ohio, the jurisdiction of equity to decree alimony alone has been more or less asserted and exercised. In all the other states the jurisdiction is denied. In both cases the state statutes may exercise an influence in determining the question.

In the year 1707 this question came under consideration in Maryland in MacNamara's Case, 2 Bland. Ch. 566, and the court allowed alimony without a divorce, asserting such jurisdiction as general and original in the absence of ecclesiastical courts. This was followed in Lynthecumb's Case in 1738, and Scott's Case in 1746, and Gavane's Case in 1750 (all reported in 2 Bland. 566), and asserted in Golwith's Case, 4 Har. & McH. 477, apparently decided in 1689. This jurisdiction was confirmed by statute in 1777, which gave the court of chancery full power to hear and determine all causes for alimony, but it was understood that the jurisdiction did not extend to granting divorce. It was said in Jamison v. Jamison, 4 Md. Ch. 289, that alimony was so granted because “it is the duty of the husband to provide a suitable maintenance for his wife, and if he will not do so some proper remedy should be provided to compel him. The action at law whereby the person who supplies her with necessaries may sue the husband is a precarious and uncertain reliance for support. It is better that some proceeding be instituted by which the husband will be compelled to pay alimony or that the wife be restored to her conjugal rights, and as we have no jurisdiction over applications of the latter kind, it is best to grant alimony. This court had jurisdiction before the revolution to grant alimony independent of the application for divorce.” This is the principle or doctrine adapted and followed in this state (Helms v. Franciscus, 2 Bland. Ch. 565; Wallingsford v. Wallingsford, 6 H. & J. 485; Harding v. Harding, 22 Md. 337 ; Keerl v. Keerl, 34 Id. 21; J. G. v. II. G., 33 Id. 401; Schindel V. Schindel, 12 Id. 294 ; Dunnock v. Dunnock, 3 Id. Chan. 140), and the courts have never gone to the extent of granting alimony

separate proceeding after a divorce a vinculo, except in Crane v. Meginnis, 1 Gill & J. 463, which followed Richardson v. Wilson, 8 Yerg. 67, holding that in a proper case there may be a judicial decree for alimony after a legislative divorce, but this seems to be against authority and the reason and policy of

the law.

a

divorce

a

In North Carolina in 1796 (Spiller v. Spiller, 1 Hayw. 482 ; Knight v. Knight, 2 Id. 101), bills in equity by the wife against the husband for alimony alone were sustained without question. This jurisdiction has been sustained in later cases (Schonwald v. Schonwald, Phil. Eq. 215; Hodges v. Hodges, 82 N. C. 122), but such jurisdiction has not been stretched to grant alimony after

vinculo. This inherent jurisdiction of chancery to grant alimony has been asserted and adopted in Virginia (Purcell v. Purcell, 4 Hen. & Munf. 507; Almond v. Almond, 4 Rand, 662), approving Duncan v. Duncan, 19 Ves. 394, and rejecting Head v. Head, 3 Atk. 295, and Ball v. Montgomery, 2 Ves. Jr. 195. The cases in this state follow the reasons for asserting the chancery jurisdiction given in the Maryland cases, but did not grant it after divorce a vinculo, and do not make distinction between alimony and a separate

maintenance.

English

In Alabama the court (Glover v. Glorer, 16 Ala, 442; Wray v. Wray, 33 Id. 187; Turner v. Turner, 44 Id. 437), at an early period asserted and exercised original jurisdiction over the subject of alimony, and in Glover v. Glover, after a careful review of the

cases said, that the court was "free to adopt a rule of decision for ourselves which we conceive to be more consonant with an enlightened equity, and with the fundamental principles and maxims upon which the jurisdiction of our courts of chancery is based,” and therefore the courts would in harmony with the courts of Virginia, South Carolina and Kentucky, grant alimony in a proper case on an independent application, because the husband is bound to support his wife. “ If law and conscience create this obligation, and no court can enforce its performance or compensate for its violation, then this class falsifies the maxim that for every wrong there is a remedy, and for every injustice an adequate and salutary relief.” Chilton, J., in Glover v. Glover.

VOL. XXXIII.-2

This applies to a separate maintenance, but in Turner v. Turner, the court applied the doctrine after divorce a vinculo. In that case husband and wife resided in Alabama. The husband abandoned his wife, went to Indians and procured an ex parte decree of divorce. The wife sued in Alabama for divorce and alimony. The husband pleaded the Indiana divorce as a bar, and the court held that it was not a bar. Said PETERS, J.: “ The Indiana divorce cannot affect the wife's rights, except her right in the husband as husband. It unmarries him and sets him free from his marital vows to her. He is no longer the complainant's husband. But it does not settle her right to alimony. It does not settle her right to dower in his lands, and her statutory right to distribution of his property in this state in the event she should survive him, nor any other interest of a pecuniary character she may have against him." But this decision should be placed on the principle that the decree of divorce was ex parte, not obtained at the bona fide domicile or the place of the offence, the grounds upon which jurisdiction is taken, and hence could not and did not affect the wife. This will accord with Shannon v. Shannon, 4 Allen 134; Smith v. Smith, 13 Gray 209; Cox v. Cor, 19 Ohio St. 502; Leith v. Leith, 39 N. H. 20; Hoffman v. Hoffman, 46 N. Y. 30; Prosser v. Warner, 47 Vt. 667.

In California the court in Galland v. Galland, 38 Cal. 265, divided on the question, the majority sustaining the jurisdiction and the minority rejecting it. The case was an application for alimony alone, and the court held, as in Virginia, South Carolina and Kentucky, that equity had jurisdiction to decree it, whether the application is or is not coupled with a prayer for divorce, approving the reasoning of Mills, J., in Butler v. Butler, 4 Litt. 202, and stating that the husband is obliged to support his wife; that as there is no remedy at common law for the husband's violation of this obligation, equity must afford one in this as in all cases where conscience and law acknowledge a right and no remedy. Besides, as equity enforced agreements for separation and separate maintenance, it can do it when he turns her out of doors ; and that there is no difference in decreeing alimony under an agreement to separate, and decreeing it when the husband forces bis wife to separate : citing Lasbrook v. Tyler, 1 Ch. R. 24; Williams v. Callow, 2 Vern. 752; Wat kyns v. Watkyns, 2 Atk. 97; Purcell v. Purcell, 4 H. & M. 507; Almond v. Almond, 4 Rand. 662; Logan v. Logan, 2 B. Mon.

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