Hammond v. Hammond — 1 Cl. Ch. 151

Majority

p. 151

Hammond vs. Hammond.

Headnote

An injunction in favor of a wife restraining her husband from disposing of his property, will not be dissolved upon a mere allegation in the answer of the husband, that he has no intention of selling his property ; neither will a tie exeat be discharged upon the like allegation, that the defendant has no intention of leaving the State.

Alimony is allowed to the wife, pendente lite, in a controversy with her husband, almost as a matter of course, whether the wife be plaintiff or defendant—the amount always to be governed by the circumstances of each case, and may be settled by the court without reference, where the facts are sufficiently before it.

The bill is filed in this case, for a divorce a mensa et thoro, either perpetual or limited, on the ground of cruel treatment and abandonment by the husband.

p. 152

Several strong instances of cruel treatment are stated in the bill. Upon the filing thereof, an injunction an(^ n(¡ exeaf was issued against the defendant. • The defendant substantially denies the cruel treatment charged in the bill, except upon justifiable grounds; and alleges that the complainant has committed adultery with a person named in the answer, and in other instances; and that the defendant had provided a place of residence for his wife and youngest daughter, at which the complainant refused to live. The answer is upon oath, but the oath is waived by the bill. The defendant now moves for the dissolution of the injunction and ne exeat, and the complainant moves for alimony and counsel fees. The motions were all argued at the same time.

B. L. Bessac, for complainant.

W. W. Ruggles, for defendant.

This must certainly be an unhappy pair. There are strong cases of grievance presented in both the bill and answer, sufficient to satisfy me that there must be glaring faults and culpable bad conduct on one side, perhaps on both. The ground upon which the defendant asks for a dissolution of the injunction and ne exeat, viz. that he has no intention of disposing of his property or permanently removing from the State, are hardly tenable. If he has not, these writs will not annoy him. If he has, the complainant, if she proves to be the injured party, will be remediless. It can do no injury to the defendant, upon his own showing, to retain these writs. It may do much injury to the complainant to discharge them, if the defendant’s

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allegations are groundless. The motion to dissolve these writs, must therefore be denied.

Upon the papers as presented before me, I cannot undertake to decide which party has merits. That must be left to be determined after the proofs shall have been taken. It does not appear that the wife has any separate property. In contemplation of law the husband is the owner of the whole property, unless the contrary appears, and unless some provision is made to pay the-expenses of the wife’s litigation, and of her support during its continuance, out of the husband’s property, a meritorious .wife would be without the means of escaping from the cruelty of her husband, or procuring a separation after he had violated, in the grossest manner, the marriage tie. Hence, it is usual, even in suspicious cases, to allow the wife, whether she is complainant or defendant, means of carrying on the litigation and of subsistence during its continuance, out of the property of her husband. This allowance of alimony is almost a matter of course. 1 Edw. R. 62. And it is done notwithstanding the defendant puts in a plea that there was no marriage. 1 Edw. R. 255. And although a verdict is found against the wife, convicting her of adultery. 1 Edw. R. 317. And even though there is an appeal pending from an interlocutory order. 1 Edw. R. 360. And, indeed, all the cases in our reports go to show that this allowance is almost a matter of course.

The amount of the allowance, as well as the allowance itself, is, however, a matter of discretion with the court, and is not as large, usually, for temporary purposes, as it is upon a final decree for separation. The means of the husband—the productiveness of his property—the merits of each as they

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appear before the court—the number of children and a§’e—the ability of either party to earn money by their industry—their situation in life, and various other circumstances, are all to be taken into account. In this case there are nine children of the marriage, six of whom are minors. The father’s property is not productive—both the parties are or should have been accustomed to labor—the merits are not clear— and on the whole, I shall allow the complainant $50 to carry on her suit, and. $75 per annum, payable quarterly from the time of filing her bill, to be paid by the defendant. I make this allowance without reference, because the case is fully stated, and to save the expense of a reference. This seems to be authorised in the case of Monroy vs. Monroy, 1 Edw. R. 382; and I trust there will be a speedy termination to this worst of all litigations—a domestic law suit.