Williams v. Williams , 3 Barb. Ch. 628 ( 1847 )

The Chancellor.

This is an appeal from an order of the vice chancellor of the fourth circuit, directing the payment of $100 to the defendant, to enable her to defend her suit; and referring it to a master to report a suitable allowance for ad interim alimony. The defendant swears positively that she has not been gililty of the acts of adultery charged in the bill, or either of them. And, for the purpose of this application, that allegation must ¡be taken-to be true; the verdict in the cfim. con. case, brought by the complainant against White, not being even presumptive evidence of the fact of adultery, as against her.

The vice chancellor was therefore right in directing an allowance to be made to her to enable her to make her defence; and "in directing a reference to a master to report what would be a suitable allowance to her for ad interim alimony. The state of the complainant’s property, and the claims upon 'him by those whom he-is bound ‘to‘furnish with the means of support, are sddh that it is hardly .probable he can afford to ,pay much for alimony. That, "however, is a proper subject for consideration by the master; and -cannot Well be litigated upon ex parte affidavits.

An allowance to enable the defendant to make a 'defence against what she swears to be an unfounded charge, cannot well be dispensed with. And the only question in my mind is whether the vice chancellor ought to have directed so large a sum to be paid immediately; considering the state ofthe complainant’s family and property. I think $50, to be paid in thirty days, would have been sufficient for "the present purposes of the defence, and for procuring witnesses to attend the trial. And that it would have been sufficient if the other $50, for counsel fees upon the trial, had been made payable ten days previous to the circuit at which the cause is noticed for trial. With these modifications, the order appealed from is affirmed.

And the costs upon this appeal are to abide the event of the suit.