[ *590 ] It is con tion.(k) Though at the commencement of a suit *the charge of adultery made against the husband cannot be taken as proved, yet it gives a complexion to the case. stantly stated against a wife who is proceeded against by her husband for adultery, that though the court cannot assume her guilty of the offence till it has been proved, still that is a sort of charge which ought to make her content to live in decent retirement. On that account a comparatively small allotment is given during the pendency of the suit.(1) But a different principle will apply where the wife is complainant, and although the court will not allow the same amount as where the charge of cruelty or adultery has been established, yet the wife has a right to be maintained with a moderate reference to her former comfortable state. In such a case where the husband's income was about 1500l. a year the court allowed her 2007. a year in addition to her separate income of 300l.(m) Where enormous expenses had been thrown upon the husband in every mode to which female extravagance could apply itself, the court was not disposed to allot any alimony, but with the view of protecting the husband; and · in such a case the court, out of an income of 2600l. a year, allotted only the sum of 2001. to the wife, who was complainant, in addition to her pin money of 2001. per annum. (n) The court allotted 757. a year to the wife pending suit out of an income of 2507., although the husband had two children to maintain and to pay the expenses of the suit on both sides.(0) The court allotted alimony pendente lite at the rate of 501. per annum out of an income of 140l., and refused to allow the monition not to issue till after fifteen days.(p) Commencement of Alimony.]-Payment of alimony is enforced with the view of promoting diligence in the prosecution of suits. Where due diligence is used in the return of the citation, the general rule is to allot alimony from that time.(q) But where a husband takes out and serves a citation to answer his own pur[ *591 ] poses, and delays the return of it, in such a case the wife will be entitled to alimony from the date of the citation.(r) Alimony pendente lite is to be computed from the return only and not from the issue of the citation, although owing to there being no court day such return could not be made till the following Michaelmas term.(s) Where alimony is decreed to commence from the return of the citation, all sums paid subsequent to that return are to be allowed (k) Hawkes v. Hawkes, 1 Hagg. Eccl. R. moniæ, pro, qualibet hebdomada a tempore datæ vel relate citationis primariæ (si hoc sibi æquum visum fuerit) ad talem summam, solvendam durante lite, nisi aliter per nos decretum fuerit; Oughton, tit. 206, s. 6. (r) 1 Phill. R. 209. Caveat tamen judex, ne circumveniatur in taxatione prædicta (videlicit) a die datæ citationis nam aliquando agentes curant citationes extrahi tamen eas exequi et certificari differunt, per annum aut circiter: Qua fraude, per judicem, comperta, taxare solet expensas, et allocare sumptus alimoniæ a die executiones, sive relatio. nis citationis; Oughton, tit. 206, s. 8. (8) Bain v. Buin, 2 Addams, 253. as part payment.(t) Thus the amount of all debts which the wife had incurred since that time, and which had been discharged by the husband, are to be first deducted.(u) Where the suit was commenced in the Consistory Court of London, and the wife appealed to the Court of Arches, a decree of the latter court allowing alimony pending the suit to be computed from the date of the sentence appealed from, and not merely from the return of the inhibition as prayed by the husband, was confirmed by the Court of Delegates.(x) Reduction of Alimony.]—On motion founded on the affidavit of the husband that subsequent to his answers to the allegation of faculties, given in the cause and the allotment of alimony, his income, arising from certain salaries to public bodies, had been reduced in several particulars, the wife's alimony pending suit was reduced; such reduction to commence after the next quarterly payment. The motion was founded upon the mere affidavit of the husband, but his prayer was in effect unopposed by the wife. (y) [ *592 ] *The alimony actually due must be paid before the hearing of the cause.(z) 2. OF PERMANENT ALIMONY. Principles of allotting permanent Alimony.]-Permanent alimony is an allowance to be made to the wife for her maintenance, when she has proved herself entitled to it, upon which subject the ecclesiastical court has the jurisdiction. Therefore where that court had decreed separation of a wife from her husband on account of his cruelty, and had allotted her alimony, and the husband prayed a prohibition, setting forth that he desired cohabitation and offered security to treat his wife properly, the Court of King's Bench refused it, because the court of the ordinary is the proper jurisdiction for the allowance of alimony.(a) But no alimony will be allotted where the wife has eloped from the husband and lives in adultery; nor in the case of a total divorce by reason of some legal impediment whereby the marriage was null and void ab initio.(b) The law has fixed no definite proportion of the property of the husband and wife to be allotted for permanent alimony, the court must therefore look at all the circumstances together, for no two cases are alike, in order that it may award what is fair and just between the contending parties. Although the amount of alimony to be allotted is in the discretion of the court, it is a judicial and not an arbitrary discretion, which is to be exercised from an equitable view of all the circumstances of the case.(c) A much larger allowance is to be made for permanent alimony than for alimony pending suit. Where the delinquency of the husband has been established, and the wife is the injured party and separated from (1) Hamerton v. Hamerton, 1 Hagg. Eccl. (u) Harris v. Harris, 1 Hagg. Eccl. R. 353. (z) Bird v. Bird, 1 Lee, 418; see Bruere v. Bruere, 1 Curteis, 566; ante, p. 589. (b) Godolph. Abr. 509. (c) 2 Phill. R. 41; 3 Phill. R. 389. the comfort of matrimonial society by her husband's misconduct, she will be liberally supported. The law has laid down no exact proportion, it gives sometimes a third-sometimes a moiety [*593 ] according to circumstances. (d) It seems that a larger proportion is given out of a small than a large income.(e) In The Countess of Pomfret v. The Earl of Pomfret,(f) though there was a large fortune and the husband had to maintain the rank and dignity of the peerage, one-third was given, i. e. 4000l. out of 12,000l. Certainly the wife had brought a large fortune, but then she was elevated in rank by the marriage. Out of an income of 750l., the husband having no state nor family to maintain, 250l. a year was allotted to the wife, she taking charge of their only child.(g) In a suit for divorce brought by the wife, repeated and profligate adultery being proved on the part of the husband, (who however had to maintain and educate twelve children,) permanent alimony, at the rate of 600l. per annum, (in addition to 1201. per annum separate property,) out of a net income of 40007. was allotted from the date of the sentence,-three years before the cause having in the interval been carried by appeal to the delegates but remitted, no steps being there taken by the appellant, and the remaining delay being occasioned by his absence from the kingdom.(h) Where the husband violates the marriage contract, it might be equitable perhaps, that he should lose the whole benefit of it, and be obliged to give up the whole of his wife's property; at all events it would be most unjust that the wife should be deprived of any considerable portion of the property she brought, in order to support the husband in public scandal, and to enable him to continue his adulterous connection, and to provide for the issue which are the fruits of it. Therefore where the husband had raised himself to independence and affluence by marrying a young woman, whom he not only injured but insulted by debauching a maid servant who lived at the adjoining house, had taken a house for such servant, and for her society had abandoned that of his wife, had children by such servant, received his friends in the house, and introduced her as his wife, the court gave a moiety of the husband's property to the wife for permanent alimony.(i) [ *594 ] After a decree of separation a mensa et thoro, on account of the husband's cruelty and adultery, in one of the grossest cases of misconduct in both particulars that ever came under the notice of the court; the real estate being 6000l. a year, subject as alleged by the husband to large incumbrances, the mother's jointure having been 1000%. and the wife's pin money 500l. a year, the court allotted 1000l. a year permanent alimony, allowing the husband to deduct from that sum any payment on account of pin money above 2007. a year, the sum agreed to be paid to the wife for the maintenance of the children.(k) Where the delinquency of the husband was very gross, and the greater part of the property came from the wife, but there were children of the marriage to be supported and educated by the hus (d) Otway v. Otway, 2 Phill. R. 109. (e) 2 Phill. R. 44. (f) Cons. May, 1791, cited 2 Phill. R. 43. (g) Kempe v. Kempe, 1 Hagg. Eccl. R. 532. (h) Durant v. Durant, 1 Hagg. Eccl. R. 528. (i) Cooke v. Cooke, 2 Phill. R. 40. (k) Mytton v. Mytton, 3 Hagg. Eccl. R. 657. band, the court gave the wife about one moiety of the income, after deducting the expenses of education. (1) A less proportion will be given where the husband acquires his subsistence by his own personal exertions. In Biggs v. Biggs 751. was given; the husband was a seller of venison, and his income stated to be 300l. In Dawson v. Dawson 801. was given; the husband was a working jeweller, and his income stated to be 3007.(m) In estimating the amount of alimony to be allowed to the wife after a separation on the ground of cruelty, the husband is not entitled to a deduction out of what would otherwise be payable by him out of his income, in respect of money left by wills since marriage to the wife's separate use, nor in respect of his wife's salary as a lady in waiting to the queen; but he is entitled to such a deduction in respect of a pension from the crown granted to his wife.(n) When to commence.]-The rule of the court is to decree permanent alimony from the date of the sentence of divorce,(o) though alimony pendente lite was neither asked for nor granted.(p) If due [ *595 ] diligence is used alimony will be given from the date of sentence and the appeal, but where the proceedings are delayed by the wife alimony will be allowed only from the return of the inhibition.(q) In Gresse v. Gresse,(r) on an appeal from the consistory, 2007. had been given in the court below, an act on petition was entered into in the Arches Court, in which it was stated on the one side, that arrears were due for the alimony given in the court below; and on the other, that the wife had delayed the proceedings; and that alimony was only due from the date of the inhibition. The court granted it only from the return of the inhibition, on the ground that it appeared that the wife had been guilty of delay. But it will be decreed from the date of the sentence where there is no unnecessary delay, as where the suit was determined in the fourth session of Trinity term in the Consistory; the appeal was prosecuted instanter, for an inhibition was prayed in the Arches on the next court day, and on the first session of Michaelmas term the inhibition was returned. The circumstance that the sentence was so late in Trinity term that the inhibition could not be returned till Michaelmas term, was held not to deprive the wife of alimony from the date of the sentence and appeal.(s) Appeal in respect of Alimony.]-The allotment of alimony is a grievance for which an appeal lies from the inferior court,(1) although the sentence of separation is acquiesced in. But upon a point where there is no other rule or criterion to guide than the boni viri arbitrium, it is only upon a strong difference of opinion where the court of appeal would be disposed to disturb the sentence. Where permanent alimony has been allotted by the local court, the Arches Court of Canterbury has, in several instances, dismissed appeals on the ground that too large a sum has been allotted to the wife.(u) If the sentence (l) Otway v. Otway, 2 Phill. R. 109. (m) Cited 2 Phill. R. 44, 45. (n) Westmeath v. Westmeath, 3 Knapp, 43. 534. (0) Cooke v. Cooke, 2 Phill. R. 46. (p) Kempe v. Kempe, 1 Hagg. Eccl. R. (q) Loveden v. Loveden, 1 Phill. R. 210, 211. (r) Cited 1 Phill. R. 210. (s) Loveden v. Loveden, 1 Phill. R. 208; see ante, pp. 590, 591. (t) 3 Phill. R. 389. 206. (u) Cooke v Cooke, 2 Phill. R. 40; Street V. Street, 2 Add. 1. of the court below were extreme either way, the court of appeal would interfere, in the one case to modify or reduce, and in the other to augment the alimony; so, in *either case, on that sup[ *596 ] position egregiously misallotted. But it is not any mere slight difference of opinion as to the propriety of the allotment in point of amount which would justify such an interference. The court below must have been better informed than the court of appeal can be with respect to the real merits of the whole case as between the parties. It had better means consequently of forming its judgment upon the question, agreeably to those general principles of equity, which are nearly the only ones capable of being brought to bear upon this species of question. For instance, the court below had means of estimating the true nature and degree of the delinquency of the parties with respect to which the court of appeal is comparatively uninformed.(x) Alteration of Amount of Alimony.]-Where there is a material alteration of circumstances a change in the rate of alimony may be made. If the faculties are improved, the wife's allowance ought to be increased; and if the husband is lapsus facultatibus, the wife's allowance ought to be reduced. Where the husband's estate at the time of settling the amount of alimony is subject to deductions as jointures, it is open to the wife to apply for an increase of alimony when the deductions fall in. (y) Applications of this sort are of rare occurrence; in Foulkes v. Foulkes(z) an increase was granted. The court refused to reduce alimony on account of an express waiver of a part thereof by the wife-the additional expenses of the husband occasioned by the mature age of children-the failure, from mismanagement of her trustees, of a portion of the funds set apart for the wife's alimony-or slight additions aliunde to her means. (a) The reduction of the husband's income by unprofitable speculations is no ground for a proportionate reduction of permanent alimony allotted twenty years before.(b) Enforcement of Payment.]-Alimony is allotted for the maintenance of the wife from year to year, the court therefore *will not, without sufficient cause shown for the delay, as [ *597 ] the absence of the husband from this country, enforce payment of arrears beyond one year prior to the monition, delay in her application raising an inference that she has made some more beneficial arrangement. In Wilson v. Wilson, (c) upon an application by the wife to enforce a monition for the payment of alimony six years in arrear, the court said:" Unless the husband is absent from the country, or some particular reasons are set forth, it would be productive of great inconvenience and injustice, if, after a lapse of so many years, the court should enforce such a monition. If the wife is aggrieved she should make her application within a reasonable time, otherwise the court will infer she has made some more beneficial (x) Street v. Street, 2 Addams, 2. (y) Otway v. Otway, 2 Phill. R. 109. (z) Cons. Hil. Term, 1814, cited 3 Hagg. Eccl. R. 329; see Cox v. Cox, 3 Addams, 276; ante, p. 591. (a) De Blaquiere v. De Blaquiere, 3 Haggi Eccl. R. 322. (b) Neil v. Neil, 4 Hagg. Eccl. R. 273. (c) 3 Hagg. Eccl. R. 329, 330. |