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Cray v. Cray.

decree in favor of one defendant against another, in a matter distinct from the subject matter of the suit.

The counsel of the complainant, in the cross-bill, insists that the bill can be supported on the ground that it is necessary in order to procure a complete determination of the matters in litigation. Obviously it cannot be maintained on that ground. The liability of the owner to the complainant with cross-bill for deficiency, is not one of the matters in litigation in the original suit.

The cross-bill will be dismissed.

ELIZABETH CRAY

v.

ABRAHAM CRAY.

1. A bill filed to obtain a divorce a mensa et thoro, on account of the refusal of the husband to maintain the wife, though it presented no ground of divorce was, nevertheless, sustained, under the statute (Rev. p. 31820), as a bill for support.

2. A denial of a marriage de jure, because complainant had another husband living when she married defendant, accompanied with an admission of a marriage de facto, presents a proper case for allowing alimony pendente lite. But such alimony was refused where the defendant swore, and his oath was not overcome, that he left complainant with her consent and at her request, and he otherwise met the allegations of the bill with his answer and affidavits.

Bill for divorce &c. On application for alimony pendente lite and counsel fee. On bill and answer and affidavits.

NOTE.-Whether a court will grant alimony in a suit for divorce, on the ground that the defendant has a former husband or wife living, seems to be questioned in some cases. The objection is founded on the reason that alimony depends on marriage, and if there never has been a marriage there cannot be alimony. Thus, there can be no original proceeding for alimony after a divorce (Wilde v. Wilde, 36 Iowa

Cray v. Cray.

Mr. C. H. Skillman, for complainant.

Mr. L. H. Sergeant and Mr. J. N. Voorhees, for defendant.

THE CHANCELLOR.

The bill prays a divorce a mensa et thoro, and that the wife may have a separate maintenance. It prays other relief, also, and contains the general prayer. It is based on the allegation that the husband, in July, 1878, left his house in Lambertville, in which he and his wife were living together, and went to live elsewhere in the town, and has ever since continued to live separate from her, and has ever since refused to provide her with money for clothing and other things necessary to her comfort. The answer alleges that the defendant has, since the separation (which, it states, was with the consent of the complainant), ascertained that the complainant had a lawful husband living when she married the defendant, and that therefore she is not the defendant's lawful wife, and it denies the allegations of the

319; Petersine v. Thomas, 28 Ohio St. 596; Bowman v. Worthington, 24 Ark. 522; Galland v. Galland, 38 Cal. 265); and where a divorce obtained in Kentucky allowed alimony, it was held that the wife could not afterwards go into a court of Indiana for more, although her former husband owned lands there, and her allowance was inadequate (Fishcli v. Fisheli, 1 Blackf. 360; 2 Bish. Mar. & Div. 516); so, where both parties are non-residents (Keerl v. Keerl, 34 Md. 21). See Brinkley v. Brinkley, 50 N. Y. 184; Cox v. Cox, 20 Ohio St. 439.

In North Carolina, it seems, it is not necessary to decide, as in England, the question of marriage or no marriage, before passing on the right to alimony pendente lite. Schonwald v. Schonwald, Phil. Eq. 215; and see Little v. Little, 63 N. C. 22.

Bishop (Vol. II, 402 &c.), says its allowance depends upon the fact of marriage being either admitted or proved, although such marriage need not be valid, and cites Bird v. Bird, 1 Lee 209; Miles v. Chilton, 1 Robertson 684; North v. North, 1 Barb. Ch. 241; although the marriage is alleged to have been brought about by the fraud of the pretended wife, the husband being a lunatic. Portsmouth v. Portsmouth, 3 Addams 63; CONTRA, Roseberry v. Roseberry, 17 Ga. 139; but see Frith v. Frith, 18 Ga. 273. See, also, Rawdon v. Rawdon, 28 Ala. 565.

Where a marriage was denied, but cohabitation admitted, alimony was allowed (Smith v. Smith, 1 Edw. Ch. 255); but not where the cohab itation was also denied (Vreeland v. Vreeland, 3 C. E. Gr. 43); or where the marriage was denied and the cohabitation meretricious (York

Cray v. Cray.

bill charging misconduct on him. It alleges that the complainant was, by the separation, left in full possession of the homestead, with all its furniture, and that, with the family there, she has been ever since well and amply supplied with provisions &c., in the same manner as before the separation; and that the complainant has and has had the benefit of the defendant's credit for the purchase of such things as she might or may need beyond what is supplied for the family. It alleges, also, that she has been and is permitted to take the money for the milk, butter and eggs which are produced on the property, and to apply it to such purposes as she may see fit, and that the money so received by her amounts to at least fifteen dollars a month.

The bill cannot be sustained as a bill for divorce. It states no cause of divorce. But it may be sustained as a bill for support under the 20th section of the divorce act. It alleges that the defendant, without justifiable cause, has abandoned his wife and refuses to support her adequately. The defendant, while he denies that there was a marriage

v. York, 34 Iowa 530; Humphreys v. Humphreys, 49 How. Pr. 140; Appleton v. Warner, 51 Barb. 270); or where the marriage was admitted but never consummated, because the wife justly suspected her husband had a former wife living (Holston v. Holston, 23 Ala. 777).

In Bartlett v. Bartlett, Clarke Ch. 460, in a suit by a wife for divorce, on account of the alleged impotence of her husband, alimony was refused [but notice that there was an agreement in this case as to the wife's father supporting her]; and see Smith v. Morehead, 6 Jones Eq. 360. In Brinkley v. Brinkley, 50 N. Y. 184, where the evidence as to a formal marriage was evenly balanced, but that of a lawful cohabitation preponderated on the wife's side, she was allowed alimony. Also, Herforth v. Herforth, 2 Abb. Pr. (N. S.) 483; Purcell v. Purcell, 4 Hen. & M. 507; Fuller v. Fuller, 17 Cal. 605.

In Anonymous, 15 Abb. Pr. (N. S.) 307, a husband obtained a divorce on the ground of a prior marriage, and married again. His former wife then applied to open the decree of divorce on the ground of fraud.—Held, that the second wife was entitled to counsel fees, but not to alimony.

In a suit by a husband against his wife, to have their marriage declared void, by reason of her former marriage, on a decision in favor of the wife, the court may award her extra expenses and counsel fees (Griffin v. Griffin, 47 N. Y. 134); and also alimony, where a wife's petition, because her husband had a former wife living, is established (Vanvalley v. Vanvalley, 19 Ohio St. 588); see Zule v. Zule, Sax. 100.-REP.

Ramsey v. Smith.

de jure between him and the complainant, admits that there was one de facto. That would be sufficient ground on which to base an order for alimony pendente lite, if a proper case otherwise were presented. Vroom v. Marsh, 2 Stew. 15. In these cases the court acts with great care in passing upon such applications as this. Glasser v. Glasser, 1 Stew. 22.

The defendant, while he admits that he left the complain ant, alleges and swears that he did so with her full consent and in accordance with her express wish; and the case made by the bill is otherwise completely met by the answer and the affidavits on the part of the defendant. The motion will be denied.

JOHN H. RAMSEY and others

υ.

RACHEL SMITH.

To reform a deed on the ground of mistake, it must be shown conclusively that such mistake was mutual. Where the bill does not allege, nor the accompanying affidavits state, that the mistake was mutual, and the answer denies it, the deed cannot be rectified.

Bill for relief. On motion to dissolve injunction, on bill and answer and affidavits thereto respectively annexed.

Mr. J. G. Shipman and Mr. J. N. Voorhees, for the motion.

Mr. John T. Bird, contra.

THE CHANCELLOR.

The bill alleges that, in March, 1866, differences had arisen between the defendant and her husband, James J. Smith, in regard to their respective properties, and that, by an agreement then made between them, they, in consideration of a release by the wife of all interest in the property

Ramsey v. Smith.

of the husband, as well after his death as in his life-time, conveyed to the complainants, John H. Ramsey (her brother) and Peter Voorhees (her son-in-law), as trustees, all her property in trust, as therein declared, for the sole and separate use of the wife, and to be at her sole and separate disposal. It further states, that at the same time the complainants, to indemnify the husband and his estate from all claims and demands of dower, or distributive share in or to the real or personal estate of the husband after his death, gave to him their bond in the penalty of $3,000; that it was agreed between the parties that, in order to secure the complainants against loss by reason of such indemnity, the principal of the estate of the wife should be left in their hands until her death, if she should predecease her husband, or until it should appear, in case she should survive him, that she had relinquished all claim of dower or distributive share in or to his estate; that her property was accordingly delivered over to the complainants, and that the principal thereof has been retained by them ever since; that $2,000 of the principal was borrowed by the complainant Ramsey, with her consent, upon his promissory note given to his co-trustee Voorhees, payable to the order of the latter, which note was held by Voorhees accordingly up to 17th of February, 1879, when the defendant, through her attorney, demanded it of him with a view of collecting it; that he refused to deliver it up, and, on the same day on which the demand was made (but without the knowledge or consent of the defendant), took in substitution therefor a bond from Ramsey, payable to himself as trustee of the defendant, of the same amount, secured by a mortgage upon sufficient real estate, and delivered up the note to him, and that on the refusal of Voorhees to deliver up the note, on the demand of her attorney, the defendant, on or about the 21st of February, 1879, began an action of trover against Voorhees, in the Hunterdon circuit court, to recover damages in the premises. The bill alleges that the provision for leaving the principal of the estate of the defendant to remain in the

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