Rose v. Rose , 11 Paige Ch. 166 ( 1844 )

The Chancellor.

The excuse for not inserting ithe aver-ments in the bill, which are required by the present 163d' rule to be stated therein, was the ignorance of the solicitor of the existence of the rule. This provision was not contained in the first and second editions of the rules subsequent to the revised statutes, and was inserted for the first time in the revision of the rules in 1837. It was not a statutory requirement that these allegátions should be inserted in the bill. The rule directed it, for the purpose of preventing collusion, and to enable the court to carry out the intention of the legislature, in cases where the bill was taken as confessed or the adultery was admitted; by having these matters necessarily inquired into by the master, upon the ordinary reference to him, to take proof of the adultery and of the other matters stated in the bill. The reference to the statute, in the bill itself, therefore, -would not apprize the complainant’s solicitor of the necessity of inserting these aver-ments, as is supposed by the counsel for the appellants. The neglect to look at the existing rules of the court, however, would have been a poor excuse, if the fact that the bill was drawn by the solicitor at his house, in great haste, when he was confined by sickness, had not been stated in his affidavit. But under those circumstances, it was proper to permit the complainant to amend the bill, upon terms, by inserting these averments, if such an,-amendment would have rendered the bill unexceptionable in point of form. Even with that amendment, however, it will still be demurrable, upon the ground that charges of mal-treat-* men-t are inserted, in connection with the charges of. adultery. The bill appears to have been framed with a view to obtain a decree for a separation, for the alleged mal-treatment, in ease tlje complainant should not succeed in establishing the charges of infidelity. It is filed by her next friend; which is wholly unusual, as well as unnecessary, in a bill for a divorce. It also contains an alternative prayer, after the usual prayer for a divorce and for alimony, (fee. for further and additional relief, or that the complainant may have such other relief* as the nature of her case may require. This, in connection with the charges of mal-treatment, and other acts which, as she alleges, have injured both her health and her mind, show that the bill must have been framed with, a view to obtain a decree for a separation, for the alleged mal-treatment, if an absolute divorce could not be obtained by proving the alleged adultery of the defendant. The bill is, therefore, bad for multifariousness; according to the decision of this court in Smith v. Smith, (4 Paige's Rep. 92.) The amendment should not, then, have been granted, so as to, make a good bill for an absolute divorce, without requiring the complainant to strike out all the charges and allegations therein of slander, abuse and mal-treatment, which are stated in the fourth and in the twentieth folios of the bill, and the charge in the twenty-first folio, that her health and mind had been injured by the mal-treatmént and other acts of the defendant. The order for leave to amend must, for. this reason, be modified, so as to permit the amendment, as asked for, only upon the condition that the complainant further amends her bill, by striking out the charges and allegations before stated, and the amendment must be granted upon the further condition, that it be made within twenty days. The defendant must also be per- ■ mitted to put in a new answer; to enable him to set up, as a defence, the recriminatory charges which, as he states in his affidavit, he believes he will be able to prove. And the next friend of the complainant must pay the costs of putting in the first answer, and the costs'upon this appeal, together with the costs of opposing the motion to amend; to be taxed together in one bill.

The allowance for the expenses of the suit, upon this defective bill, cannot of course be sustained. (Wood v. Wood, 2 Paige's Rep. 454.) Besides, the affidayits on the part of the defendant show that, since the alleged adultery, there has been a voluntary provision for the wife, and two of the children, embracing at least half of the defendant’s property. And I am not prepared to say that it would be proper to. exhaust the residue, if any there is, in payment of the expenses of a litigation* the necessity of which that settlement was probably intended to supersede. At least ¡.he complainant, and her next friend, should, in justice, surrender up the agreement and mortgage to be cancelled, or offer to dp so, before they should be permitted to exhaust the property which may be necessary for the support of the defendant and his other five children, in paying the costs of this litigation before the result thereof can be known. This order for the allowance for the costs of litigation, before there was a bill on which a divorce could have been properly granted, must therefore be reversed. And the petition for an allowance, for that purpose, must be dismissed with costs ; but with liberty to renew the application, if th'e complainant shall be advised to do so, upon the amended bill, and upon such other papers as she may think proper to present, after the costs shall have been paid as above directed. '

The injunction was erroneously granted upon this multifarious bill, even if the averments required by the 163d rule had been contained -therein. Besides, the injunction was much broader than would have been proper, even upon a bill which was not defective. For it not only restrained the defendant from parting with his property for the purpose of placing it beyond the reach'of the process of the court, but it also prohibited him from using his property in any way. He cannot even use his tools pf trade, nor can he manufacture his stock on hand, or apply any part of his property to support the five children remaining \vith him, without violating this injunction. The order denying the motion to dis-. solve the injunction must therefore be reyersed,and the injunction must be dissolved; but with liberty to the complainant to apply to renew the injunction, upon an amended bill, so far as an injunction may be necessary .and proper, to protect the defendant’s property from being wasted or squandered. And the defendant’s costs, upon the application to dissolve the injunction-, must abide the event of the suit, and must be paid by the next friend of the complainant, if she does not succeed in this cause in obtaining a decree for a divorce.^(a)

(a) See Beach v. Beach, (ante, 161.}