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the court will refuse to dismiss the hnsband, but direct him to certify over.(n)

SECT. VII.-OF JACTITATION OF MARRIAGE.

Nature of the Suit.-The cause of jactitation of marriage is when one of the parties boasts or gives out that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other in the spiritual court, and unless the defendant undertakes and makes out a proof of the actual marriage he or she is enjoined perpetual silence upon that head, which is the only remedy the ecclesiastical courts can give for this injury.(a) *The ecclesiastical courts are bound to receive such [ *583 ] proceedings, for the protection of persons against the extreme inconvenience of unjust claims and pretensions to marriage, which has no existence at all. If a person pretends such a marriage, and proclaims it to others, the law considers it as a malicious act, subjecting the party against whom it is set up to various disadvantages of fortune and reputation, and imposing upon the public (which for many reasons is interested in knowing the real state and condition of the individuals who compose it,) an untrue character; interfering in many possible consequences with the good order of society, as well as the rights of those who are entitled to its protection. It is therefore a fit subject of legal redress; and this redress is to be obtained by charging the supposed offender with having falsely and maliciously boasted of a matrimonial connexion, and upon proof of the fact obtaining a sentence enjoining him or her to abstain in future from such false and injurious representations, and punishing the past offence by a condemnation in the costs of the proceedings. (b) The proceeding in way of jactitation of marriage is in the nature of a criminal suit. The libel in this suit sets forth that the complainant being in no way married or united with the defendant, that the defendant falsely and maliciously boasts and reports that he or she is married, whereas in fact no marriage has taken place; and that on his or her being desired to desist from such conduct, he or she paid no attention, but continued falsely and maliciously to boast and report such facts, to the no small prejudice and injury of the complainant, and prays that the court will pronounce that the defendant has been in no manner married to the complainant, that it will restrain him or her from such conduct and condemn him or her in the costs of the suit.(c)

Suits for jactitation of marriage were of very familiar occurrence in the ecclesiastical courts of this country till the year 1776, when they were brought into disrepute by the celebrated trial of the Duchess of Kingston for bigamy before the house of lords.(d)

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Defences to charge of Jactitation.]—To a charge of jactitation three

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different defences may be opposed. It is obvious that the fact of having made any such representations may be denied, in which case, if not proved, the accusation shares the common fate of other unfounded charges; or secondly, it may be admitted that such representations have been made, but that they are true; for that a marriage had actually passed, and in such a way as to give the party a right to claim the benefit of it. In that state of things the proceeding assumes another shape, that of a suit of nullity and of restitution of conjugal rights, on an inquiry into the fact and validity of such asserted marriage; and it will depend upon the result of that inquiry whether the party has falsely pretended or truly asserted such a marriage. In the former case the court would pronounce a sentence of nullity and enjoin silence in future. In the latter the court would enjoin the accuser to return to matrimonial cohabitation, unless it could be shown that some other reason was interposed to dissolve that obligation.(e)

This defence may be sustained without a specific description of the fact of marriage; it is sufficient for a prima facie defence to allege that a fact of marriage actually passed, in which case the burthen of proof is shifted on the party impeaching the marriage. (f) It seems to be necessary however in such a suit, to prove a compliance with the solemnities of the marriage act.(g) In a suit brought by the guardian of a lady for jactitation of marriage against her alleged husband, he confessed the jactitation, and justified by pleading a marriage to have been celebrated, and the same to be valid according to the law of the Jews. The court pronounced against the validity of the marriage, that the lady was not the defendant's wife, and enjoined perpetual silence.(h) In Lindo v. Belisario(i) a similar

suit was instituted by the wife against the asserted hus- [ *585 ] band, for the purpose of trying the validity of a marriage according to the Jewish rites. The defendant relied on a complete marriage according to the general law of the Jews. The judgment of the court was, that she was not the wife of the defendant.

A third defence, of more rare occurrence, is, that though no marriage has passed, yet the pretension was fully authorized by the complainant; and therefore though the representation is false, yet it is not malicious, and cannot be complained of as such by the party who has denounced it.(k)

The court is bound in a cause of jactitation to see that parties do not usurp the characters of husband and wife to the injury of the complainant; but if there be no usurpation, if the title has been licensed by the authority, and still more by the example, of the complainant himself, the court will not interfere, but leave him to relieve himself by his own exertions from the inconvenience of his own acts. The court therefore would not interfere where it appeared that the complainant had given authority to the defendant to use his name during an illicit. connexion between them, which lasted some years, which was avowed

(e) 2 Hagg. Cons. R. 285, 286; Conset, 258; Oughton, tit. 195; see the argument of Dr. Calvert and Dr. Wynne, 20 How. St. Tr. 422. 431.

(f) 2 Hagg. Cons. R. 283. (g) 1 Bl. R. 367.

(h) Goldsmid v. Bromer, 1 Hagg. Cons. R.

324.

(i) 1 Hagg. Cons. R. 216-261; Ib. Appendix, 7-24.

(k) 2 Hagg Cons. R. 286.

in his own plea, and there was abundant reason to conclude from documents produced that the liberty was not only given but that the complainant clothed her with that character in all places and in all situations-in England and abroad-in London and at his country residences amongst his tradesmen, his neighbours, and his friends— in his intercourses of private life, and to the representatives of foreign governments, where it was necessary to give her a true description, to entitle her to a privileged reception in the countries they represented. In addition the husband had introduced her to his own children by his deceased lady as succeeding to her rights and duties in the care and management of her unprotected offspring. Such acts were held to deprive him of a right to complain of an injury, which, if it existed [ *586 ] at all, he had inflicted upon himself, and this not in a moment of *indiscretion at once lamented and withdrawn, but publicly and privately, in habit and for years, without intermission, and in situations where very powerful calls of both duty and decorum might have been expected to impose a restraint. For it is difficult to maintain that the defendant was liable to a charge for malice for following his own authorized precedents for adopting the character he had conferred upon her for echoing his own assertions and conforming to his own course of acting. The court therefore dismissed the suit without pronouncing any sentence of malicious jactitation.(1)

1. Of Alimony pending Suit

SECT. VIII.-OF ALIMONY.

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2. Of Permanent Alimony
3. Of the Jurisdiction of the Court of Chancery with respect to Alimony

1. OF ALIMONY PENDING suit.

586

592

598

We now proceed to the consideration of alimony, which is the allowance to be made to a wife for her maintenance either during a matrimonial suit or at its termination, where she has proved herself entitled to a separate maintenance. Alimony, although it properly signifies nourishment or maintenance when strictly taken, yet now, in the common legal and practicable sense, it signifies that proportion of the husband's estate which the wife sues in the ecclesiastical court to have allowed her for her present subsistence and livelihood according to law, upon any such separation from her husband as is not caused by her own elopement or adultery.(m) In causes between husband and wife, on the principle that the whole property is supposed by law to be vested in the husband, he is in most cases obliged by law to pay the expenses on both sides, and to allow the wife alimony during the suit.(n)

Who entitled to.]-The court cannot, under any circumstances,

(1) Hawke v. Corri, 2 Hagg. Cons. R. 289 -290; see ante, p. 470-475 as to the effect of sentences.

(m) God. Rep. Can. 508.

(n) See ante, p. 533; 2 Hagg. Cons. R. 204.

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*make a formal allotment to the wife of any sum in the nature even or as on account of alimony until a fact of marriage at least is either proved against or admitted by the husband.(o) The court will recommend however that in effect the wife shall be alimented proportionably to the husband's means during the long vacation, intimating that it should take this into the account when in the progress of the suit alimony pendente lite came to be regularly allotted, if its recommendation were not complied with.(p) After proof of a marriage in fact, alimony pending the suit will be allotted whether it be commenced by or against the husband,(g) not only in cases of impotency but in all cases of nullity of marriage,(r) and in suits for restitution of conjugal rights or for divorce by reason of adultery or cruelty.(s) In a suit of nullity against the alleged wife the court will not proceed in the suit until the wife is provided with funds for conducting her defence, although fraud in procuring the marriage is expressly charged upon the wife in the libel; and although costs are prayed in the libel, and may ultimately be awarded by the court against the wife.(t)

Allegation of Faculties.]-Before alimony is allotted an allegation is given in on the part of the wife, stating the property of the husband; such an allegation is called an allegation of faculties, to which answers on oath are given by the husband. It is always desirable that such an allegation should be given at an early period, and that the question of alimony should be disposed of in the first stage of the proceedings, to prevent the husband being unnecessarily harassed with suits and demands for his wife's debts.(u) Alimony will not be fixed before the husband has given an answer to the wife's allegation of faculties.(x) The court is especially cautious not to require the disclosure of partnership concerns or matters of business and trade, the only material circumstance in an *alle[ *588 ] gation of faculties is the amount of the husband's income. In such an allegation therefore the amount of capital embarked, or the particulars of partnership concerns, is not to be set forth, but only the income: but if the husband will not fully and fairly disclose his income, then the wife may examine witnesses.(y) But the estimated value of all marketable securities, as a policy of insurance on the husband's life, must be included in the calculation of the husband's income, in order to the allotment of alimony pendente lite.(z) In answer to an allegation of faculties it is proper to state that the wife brought no fortune, but not that her father is possessed of a large property.(a) Though it is usual for the parties to accept the answers when reformed by the order of the court, the wife is not compelled to acquiesce in the valuation of her husband, and it is open to her to examine witnesses if she thinks proper; but this is a right not to be exercised wantonly, but with caution and tenderness; it is hardly

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ever necessary, in cases of considerable property, to enter into an inquisitorial scrutiny of its exact value, it is to be taken upon a fair general estimate.(b) Where the suit had been instituted by the attorney of the husband (who resided in India) against the wife, by reason of adultery, application was made, after the cause had depended for two years, for alimony. The attorney had given in his answers to the allegation of faculties, but they were insufficient; the court held that the wife might insist upon the personal answers of the husband, however inconvenient on account of his remote residence. In the mean time the court allotted the wife a sum of money on account of alimony, and directed a monition to issue against the attorney, who had so long conducted the cause in his own authority, (no proxy having been exhibited,) for the payment.(c) The court refused to admit an affidavit of the husband as to the value of his income to be read in contradiction of an allegation of faculties. (d) The *ad[ *589 mission of a husband to an allegation of faculties is to be taken strongly against him.(e)

Right to Alimony when not affected.]-An assignment apparently fraudulent and colourable by the husband of all his property after the commencement of the suit, in trust for his children of a former marriage, will not affect the wife's title to alimony pendente lite, but the court will proceed as if no such deed had appeared. For if such a contrivance could avail, no injured wife could ever hope for justice.(ƒ) If the husband, living in public adultery, incurs debts and grants annuities to pay them, he is not entitled to make a deduction in respect of them. The utmost the court would allow would be the interest of the debt, and even then the husband should satisfy the court that the debt was contracted before the adultery with which he is charged was committed.(g)

The husband being an insolvent debtor and possessed of no property, and in no business or profession, the court refused to make any allotment of alimony pendente lite to the wife, in a cause of divorce brought by the husband against the wife for adultery, although the father of the husband had considerable property, and had supported But the court suspended the proceedings until something by way of maintenance should be given to the wife.(h)

Amount of Alimony pending Suit.]-There is no fixed rule as to the amount of alimony, it is in the discretion of the court, which is to be formed from an equitable view of all the circumstances of the case. Alimony pendente lite is usually about one-fifth of the annual income, but the proportion must vary according to the circumstances and conduct of the parties. (i) There are a variety of circumstances which will operate in these cases to limit the allowance; as where the husband has children to support; where his income arises not out of substantial property but out of his pay, which is of uncertain dura

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