80 53 7 123ST 004 CONTAINING CASES FROM MICHAELMAS TERM, 1828, TO TRINI- CASES ARGUED AND DETERMINED IN THE ECCLESIASTICAL COURTS. ARCHES COURT OF CANTERBURY. COURTAIL v. HOMFRAY.-p. 1. In a defamation suit, the defendant having been enjoined penance, and condemned in costs; and to an appeal from his dismissal without such penance being duly performed, having given an affirmative issue, the Court directed penance to be performed, as originally decreed, and condemned the defendant in the further costs. Though an affirmative issue to a libel of appeal from a definitive sentence be given, the process must be transmitted, where the Court of appeal has to take any step requir ing a knowledge of the proceedings, or of the sentence of the Court below. BROWN v. BROWN.-p. 5. An assignment, apparently fraudulent and colorable, by the husband of all his property after the commencement of a suit by the wife for divorce, cannot affect her title to alimony pendente lite. The Court allotted alimony pendente lite at the rate of 50%. per annum out of an income of 1401., and refused to allow the monition not to issue till after fifteen days. THIS was a cause of divorce brought by the wife against the husband; and the present application respected alimony pendente lite. (a) The King's Advocate and Lushington, for Mrs. Brown. Phillimore and Addams, contra. JUDGMENT. Sir JOHN NICHOLL. The affidavits upon which the husband's counsel have commented, were made a year and a half ago, and for the purpose of allotting money on account of alimony: I infer that from the date of them, just prior to the long vacation in 1827, when a sum of 50l. was decreed to the wife. The Court cannot now advert to them. If, as it has been asserted, the (a) The earlier stages of this cause are reported in 1 Haggard, 523. wife is entitled to a separate income of forty guineas, payable by a Mr. Rowlett, the husband should have stated that circumstance in his answers or put it into plea: but the assertion is directly in opposition to Rowlett's affidavit: "That he does not consider there is the slightest obligation upon him to continue the allowance." The question then must be decided on the answers. The suit is brought by the wife against her husband for cruelty and adultery, and she was put to a considerable difficulty at the outset, for the husband having denied the validity of the marriage she was compelled to prove it. This necessarily entailed on her much expense, and only 501. has been allotted on account of alimony. The Court saw, in the aspect of the suit, sufficient to wish that it might terminate in some arrangement out of Court, but that recommendation failed and the wife is now proceeding in her original suit. There being then a valid marriage and no proof of a separate income, the wife is entitled to a maintenance pending the cause, and that maintenance must be allotted according to the husband's facuities. He does not deny that at the commencement of the suit, and I should think up to a pretty late period, he was possessed of certain property and income now conveyed in trust for the children of a former marriage. Some of them are grown up; for the son has been examined as a witness, and a daughter is the wife of the trustee to whom the property is assigned. Brown has thought fit to abandon farming, and has conveyed away not only the land, but his stock, crops, and even household furniture; and this too since the suit began; the intended effect of this assignment then is to deprive his wife of her maintenance. I do not mean to suggest that this assignment was made with the knowledge, much less by the advice, of the practitioners here; but I must consider it fraudulent and colourable. If such a contrivance could avail, no injured wife could ever hope for justice. I shall consider the case therefore as if no such circumstance had appeared. What is his income? A person who would resort to such contrivances will not have the credit of over estimating his property; he would rather be suspected of undervaluing it. He admits that, at the commencement of this suit, he had a copyhold farm of eighty acres, of the value of 4,2007.; but that it is incumbered with a mortgage of 12007.; he admits, however, that this property is tithe free; and that the husbandry implements, the stock and crops communibus annis, were worth 5007., and that his furniture was worth 507.; but he asserts that now there is nothing remaining to him except his mere wearing apparel. If the effect of the assignment has been to leave him so destitute, I am surprised that he has not applied to sue in forma pauperis. However, the income out of his farm was at least 2007., but it was reduced to 1407. by the payment of the interest of the mortgage. Mrs. Brown is entitled to be alimented as if living with him as his wife, and the wife of such a person could not maintain herself decently for less than 50%. per annum. I shall, on these grounds, and more especially, seeing the means to which he has resorted for reducing his faculties, allow her that sum; and he must betake himself to some occupation in order to enable him to provide the necessary funds for this allowance. I must repeat strongly my earnest recommendation that this case should be settled out of Court. |