10 N.J. Eq. 138 | New York Court of Chancery | 1854
Mary Yule filed this bill agámsfner husband, Peter Yule, for alimony. It is a bill for alimony only; there is no prayer for divorce. The bill prays for a ne exeat. There is no affidavit annexed to the bill, except that of the complainant herself. When the bill was filed, an application for the order of ne exeat was made. To support the motion, the bill and the annexed affidavit was relied upon. A ne exeat was ordered. The defendant has answered the bill, and now moves to discharge the order.
Several grounds are relied upon to sustain the motion.
First. That the complainant is not entitled to the writ until alimony is fixed. The authorities referred to, Cogler
Second. It is objected that the affidavit of the wife, as to the intention of the husband’s leaving the state, is insufficient ; that the affidavit is founded upon her belief only; and it is further objected, that the affidavit of the wife, alone, is not sufficient to warrant an order for the writ.
It is true, in Sedwick v. Walkins, 1 Ves. jun. 49, the Lord Chancellor refused a ne exeat where the affidavit of the wife, alone, was offered to support the motion. But the case was virtually overruled in Shaftoe v. Shaftoe, 7 Ves. 171; and in the case of Denton v. Denton the order was made upon the affidavit of the wife alone.
The sufficiency of the affidavit is further objected to, because it does not allege that the defendant is about leaving the state to avoid the jurisdiction of the court. In Etches v. Lance, 7 Ves. jun. 417, the Lord Chancellor asks the question, “ Must not something more positive be sworn as to the facts of his going abroad, or declaration; and ought not the affidavit to state that he is going to avoid the jurisdiction of the court ?” But such an allegation is not necessary, if the facts stated show that the defendant’s departure will defeat the complainant’s claim, or that he,is leaving the state for that purpose. Bœhm v. Wood, Tur. Russ. 344; Atkinson v. Leonard, 3 Bro. C.
Another objection to the affidavit is, that it states the belief only of the complainant as to the intention of the defendant’s departing the state. The objection is not well taken in point of fact. The affidavit states that the defendant threatened the complainant, that he would abandon her without making any provision for her support, and that he intended to take with him another woman ; that he had then his goods packed, and, as she believes, with the intention of leaving the state of New Jersey, and leaving the complainant and her infant child perfectly destitute.” The affidavit should show that the defendant intends going abroad. It must be positive as to this point, or to his threats or declarations to that effect, or to facts evincing it, or circumstances amounting to it. 1 Barb. C. P. 649. I think the affidavit sufficiently precise in the particulars required. In some eases, it will be sufficient if the intention of the defendant’s going abroad is sworn to upon information and belief. Collinson v. Collinson, 18 Ves. 352. The court should exercise a sound discretion in ordering this writ. It should not be issued in a doubtful case. The debt, or, in a case between husband and wife, the duty, should be certain, and the intention of departure beyond the court’s jurisdiction should sufficiently appear. There is no technical form in which these particulars need be stated. It is sufficient if they appear by proper proof before the court. The debt need not appear by affidavit. It is sufficient if established by a master’s report, as in the case of Collinson v. Collinson, before referred to.
Third. It is insisted that the answer and the aceom
The fifth, and last ground, upon which the defendant relies to have the order discharged, is also well taken, that the bill is for alimony founded upon extreme cruelty, and that in such a case this court has no jurisdiction to decree alimony, except as incident to a divorce; and as that is not asked for, the complainant is not entitled to relief. The general proposition is contended for, that this court can grant alimony only as incident to divorce.
Bishop? on Marriage and Divorce, 551 to 561, after discussing the doctrine, and referring to the numerous authorities bearing upon it, says, “It is upon this principle,” the principle just stated by the author, that the law casts upon the husband the duty suitably to maintain the wife, according to his ability and condition; “ that, as a gene
The jurisdiction of this court in cases of divorce and alimony is prescribed by statute. The third, fourth, and eighth sections of the statute (R. L. 928, 924,) specify the grounds upon which the court may assume jurisdiction. The ninth section (R. L. 924) enacts, “ that when a divorce shall be decreed, the court may take such order touching the alimony and maintenance of the wife, and also touching the care and maintenance of the children by the husband, as from the circumstances of the parties and the nature of the case shall be fit, reasonable, and just.” The tenth section of this statute sj>ecifies a single case in which it declares it shall be lawful for the court to order alimony, without connecting such order with a decree for divorce, and that is in a case where the court is not authorized by statute to decree a divorce, viz. where the husband, without any justifiable cause, shall abandon his wife, or separate himself from her, and refuse or neglect to maintain and provide for her. Admitting that there is nothing in the statute itself to prohibit the court from making a decree for alimony alone, in those cases specified in the statute where the court may decree divorce and alimony as incident to it, we are then thrown back upon the question, as a matter of principle, whether the court ought, except in cases expressly authorized by statute, to decree alimony, except upon a decree for divorce, as a necessary foundation for it. The weight of authority, as has been before stated, is against the jurisdiction. Although we have no express adjudication in this
The present case is not within the tenth section of the statute. The husband has not abandoned his wife, or separated himself from her, nor refused or neglected to maintain and provide for her. She, as the bill admits, left his home, and abandoned him.
With the view I have taken respecting the jurisdiction of the court, I think I may safely conclude, that it is at least extremely doubtful whether the complainant is entitled to the relief she seeks by her bill. As the court ought not, in a case of doubt, to order a ne exeat, I consider this objection to the jurisdiction of the court, for the purposes of this argument, to be well taken.