proceedings in the ecclesiastical courts, to render effectual an allowance of alimony pendente lite when awarded to her by those courts." The supposed aversion of the Court of Chancery to examine into nuptial conduct is not very conspicuous in its decisions. It is true the equity Judges do not now grant divorces (2), as they did heretofore, and as some may think they ought to do again: but there is scarcely an order made on questions of maintenance which does not, more or less, proceed on a reference to the behaviour of one, or both, of the married parties. WIFE'S MAIN TENANCE OUT OF HER EQUITABLE PROPERTY. separate property. Sir John Leach, M. R., in the case of Aguilar v. Where she has Aguilar (a), lays it down that the equitable right to maintenance does not hold where the wife has a competent separate property. But this, I apprehend, must not necessarily and in all circumstances be taken to import that the Court would allow the income to be paid to the husband d; for if he had deserted his wife, or had been otherwise guilty of matrimonial delinquency, the income might be allowed to accumulate, as in Bond v. Simmons (b). is enforced. The wife's right to maintenance will be enforced by the How maintenance Court of Chancery upon a bill brought by her against her husband, and filed (as in the case of her claiming a settlement) through the instrumentality of her next friend. When abandoned by her husband, the wife may sue for payment of a legacy. But she must still sue as a femme couverte. Thus, in a late case (c) before Lord Chancellor Sugden, the plaintiff, a married woman, but deserted by her husband, filed her bill as a femme sole, to enforce payment of a legacy bequeathed to her after (2) Tothill's Rep. p. 61, ed. 1649, p. 124, ed. 1671; 1 Spence's Equity and Jurisdiction, 702; Art. thereon in the Law Review, August, 1846. See also infra, Chap. 9, Sect. I, Law of Divorce. (a) 5 Mad. 414. (b) 3 Atk. 20, see ante, p. 103. & War. 379. When deserted, as if couverte. the wife must sue WIFE'S MAIN TENANCE OUT OF Maintenance by contract out of the husband's means. the abandonment. There being some evidence to show that the husband was still alive, the Court at the hearing gave liberty to the plaintiff to amend the bill by adding a next friend, making her husband a defendant, and charging him to be out of the jurisdiction and to have abandoned his wife. It seems fitting here to mention a species of order for the wife's maintenance out of the husband's property, and proceeding upon contract; of which we have, I think, the last example about a century ago before Lord Hardwicke, in a very singular case, that of Head v. Head (d); of which the leading facts were, that Lady Head filed a bill against her husband, Sir Francis Head, for maintenance, on the ground of an agreement contained in a letter from him to Sir John Boyce, the father of the plaintiff, saying, “he had a great affection for her; but, from her misfortune, not her fault, he did not choose to be a witness of her infirmities; and that so long as they continued separate, he would allow her 1007. a quarter." Sir Francis, by his answer to the bill, insisted that "he had requested of her to come home and cohabit with him, and was extremely desirous of it." But before this answer came in, Lady Head filed articles of the peace against him, and obtained an order that he should enter into recognizances, with sureties for his good behaviour; which order he complied with. The Lord Chancellor Hardwicke, without holding that such a state of circumstances warranted Lady Head in permanently separating from her husband, was however of opinion that it formed an excuse at least for keeping from him for some time, "till their passions might be supposed to subside; as there was still a prospect that by the interposition of friends, an ultimate reconciliation (d) 3 Atk. 295, 511, 547. might be effected." He therefore ordered that 4007., WIFE'S MAINone year's allowance, should be paid to her; observing · I will not direct it for the future; for I do not think her entitled to 6007. which she prays by her motion (e); because the answer has been put in half a year past, in which he offers to cohabit with her. This is not making a decree, as has been said, before hearing; but only doing what the husband himself is obliged to do, maintaining the wife till the cause is heard on the merits, and what I now say is abstracted entirely from any decree the Court may think proper to make, if there should not then appear to be a foundation for the agreement set up by the bill. There are instances where, notwithstanding an absolute decree for a separate maintenance, yet afterwards, upon the husband's consenting to cohabit with his wife, and promising to use her kindly, the Court have refused to continue the separate maintenance. This was on the 12th February, 1745. The case, however, proceeded; and evidence was gone into, from which it appeared that Lady Head was subject to occasional fits of mental derangement; and that her husband had, without much ceremony, attempted to shut her up in a madhouse. In finally disposing of the case, on the 20th May, 1747, Lord Hardwicke, adverting to the prayer of Lady Head's bill, which (inter alia) was "for liberty to separate," observed As to the liberty prayed, it is not in the power of the Court to decree it. I do not find that this Court ever made a decree for establishing a perpetual separation betwixt husband and wife, or to compel a husband to pay a separate maintenance to his wife, unless upon an agreement; and even upon this unwillingly. The agreement between Sir Francis and Lady Head was only for the payment of a maintenance during an occasional absence. Now consider what has been done to put an end to this agreement. [After stating the evidence of Lady Head's derangement, and of Sir Francis's purpose to confine her, his Lordship (e) Her counsel moved that she should be paid 6007. in the meantime, being a year and a half's arrear, to maintain her till the cause should TENANCE OUT OF HUSBAND'S MEANS. WIFE'S MAIN TENANCE OUT OF proceeded:-] I cannot say that Sir Francis's behaviour on this occasion was proper; but yet I will not say that this was such an act of cruelty as would forfeit the right and authority of a husband. The supplicavit (ƒ) granted to Lady Head is no reason that she should elope from her husband; for it is a security taken for the wife upon a supposition that they are to live together. Nothing appears to show that the husband has rendered himself incapable of demanding the return of his wife; and as she appears unreasonably averse to return, I cannot make a decree for the continuance of the separate maintenance. As to the arrears, let them be paid to her; because some things have happened which are an excuse for Lady Head's not returning till this judicial offer of receiving her has been made by the answer of her husband. He must treat her as his wife if she do return; therefore if she do not return in a month, the maintenance will cease. On the other hand, if, on her return, Sir Francis refuse to receive, maintain, and treat her as his wife, the maintenance in that case will continue. The encouragement to reconciliation which this decree holds out to the wife, or rather, the moral compulsion which to that end it imposes upon her, is, I apprehend, founded on the same policy as that which governs the Court in awarding maintenance to a wife out of her own trust property; and the case, therefore, to this extent, may be used for general purposes. Mr. Roper (g) so employs it; neither himself nor his learned and discriminating Editor deeming it necessary to advert to the basis of the decree, which was not an equity to maintenance, but an agreement between the husband and wife's father, liable to be put an end to, not only at the mutual volition of both the married parties, but even at the caprice of one of them. For while the wife had no power to terminate the separation, the husband might at any moment require her to come back, and thus forfeit all right to her maintenance. (f) She had sued out a writ of supplicavit against her husband. This decree, therefore, must be owned to be of an anomalous character; resembling a common order for maintenance, in that it is liable to be superseded by the husband's return to duty; but differing from such order in two respects.-1st, as directing the payment to be made out of the husband's means; and 2ndly, as being founded, not upon an equity, but upon contract. I have seen nothing like it in the modern reports; nor do I know whether it ought to form a guide for any modern determination (h). WIFE'S MAIN TENANCE OUT OF HUSBAND'S MEANS. SECTION VI. WIFE'S POWERS UNDER THE 91ST SECTION OF THE (h) See, however, 1 Fonb. Eq. 96; Angier v. Angier, Gilb. Rep. 152; Pre. in Cha. 496. (i) 3 & 4 Will. 4, c. 74. I WIFE'S POWERS s. 91. |