2 R.I. 64 | R.I. | 1851
The court have already decided upon a petition for divorce by the respondent against his wife, *66 that he could not be compelled to furnish her with the means of defending herself. There is no case in which any such allowance has been applied for in this court for more than a hundred years, and such long acquiescence should certainly have much weight in determining the true construction of the statute. But this is a petition for separate maintenance, and is supposed to stand upon a different footing. The clause relied upon in support of the motion is section 8, which invests the court with power to grant petitions for separate maintenance, and provides, when such petitions have been presented, that "any justice of the court may, in vacation, upon reasonable notice and proof, make such interlocutory decrees or grant temporary injunctions as may be necessary, until a hearing can be had before the court." It is contended that the power to make interlocutory decrees authorizes the court to make an allowance in this form. But we think the decree contemplated by the statute is a decree for the separate maintenance of the wife during the pendency of the petition, and not to furnish money to defray the expense of litigation. It would be entirely contrary to our practice to make such a decree.
It was contended the court had this power under the 7th section of the act which gives them jurisdiction in questions of alimony. But the alimony referred to is not an allowancependente lite, but to be given on final decree upon petitions for divorce, as will be seen by reference to the sixth section of the same act.
After a careful examination of this statute, we do not think there is any ground upon which we can make the decree applied for. It might be wise in the General Assembly to confer the power, and this may be a fit case for its exercise. If this had been a petition for alimony or *67 maintenance during the litigation, we might entertain the motion, though even then the inability of the husband and the wife's right to dower, which she might dispose of, might raise a doubt whether it would be proper to grant relief, but in this case we think we should be transcending our power in making the allowance prayed for.
