guilty; they have no connection with the commission of the offense." (Morrell v. Morrell, 3 Barb. R. 236, 241, 242.) The point, however, was considered too important to dispose of upon special motion, and the question was left unsettled. But where there is no statute to control the question, it does not follow because a condonation or forgiveness by the complainant will bar a suit for a divorce, that it will have the same effect as a defense, by way of recrimination, set up by the defendant. That must depend upon the particular circumstances of the case. (Wood v. Wood, 2 Paige's Ch. R. 108.) The guilt of the plaintiff in a moral sense, is the same whether the offense has been condoned or not, and that is probably what the law intends to say shall prevent him from obtaining the divorce. (Vide Leseur v. Leseur, 31 Barb. R. 330. Anonymous, 17 Abb. Pr. R. 48. B. v. B. 11 N. Y. Leg. Obs. 350. Masten v. Masten, 15 N. H. R. 159.)

But Mr. Bishop says: "If we look at this question in the light of principle, we shall be led to the following result: After an offense has been condoned, the guilty one stands upright as to his relations with the other, so long as his own conduct is correct in all particulars, perhaps even when it is not fully correct. This places the forgiving party under no new liberty of evil doing; but suppose the condoned offense were to operate as a recriminatory bar, then the forgiving party would have practically obtained a license for himself when he suffered the condonation to pass. And surely any construction of either a common law or a statutory rule the effect of which is to license profligacy or other ill conduct in the matrimonial relation, is to be strenuously avoided." (2 Bishop's Marriage and Divorce, § 100.)

It may be suggested that, although the case should go by default, if it appears by the plaintiff's own showing that there is a good and valid defense to the action, the divorce will not be granted. (Timmings v. Timmings, 3 Hag. Ec. R. 76.)

§ 691. In the English ecclesiastical courts, the defendant may not only recriminate the plaintiff and show a competent wrong in him for the purpose of defeating his action for a divorce, but the defendant may also, in a proper case, obtain a divorce by the decree of the court in the same action. (Vide Dysart v. Dysart, 1 Rob. R. 106. Clowes v. Clowes, 3 Curteis' Ec. R. 185, 194.) And the same rule applies in many of the American States, sometimes by a cross-suit and sometimes by setting up the matters in the

answer, and praying for the affirmative relief desired. (Vide McCafferty v. McCafferty, 8 Blackf. R. 218. Stafford v. Stafford, 9 Ind. R. 162. Birkley v. Birkley, 15 Ill. R. 120. Boggess v. Boggess, 4 Dana's R. 307. Anonymous, 17 Abb. Pr. R. 48. B. v. B. 11 N. Y. Leg. Obs. 350.) In Indiana, the matter is regulated by statute, which provides that "the defendant may, in addition to his or her answer, file a cross petition for divorce, and the court shall in such case decree the divorce, if any, in favor of the party legally entitled to the same." (Vide Stoner v. Stoner, 9 Ind. R. 505, 506.) And in New York and several others of the states, their Code of Procedure provides that if it appears on the trial of a cause that the defendant is entitled to any affirmative relief, judgment must be given accordingly. Under such a provision there could be no doubt but a defendant in a proper case could have his divorce. But in all these cases where the defendant seeks a divorce by recrimination, he should set up in his answer all the facts constituting his claim for a divorce in the same manner, and it should be accompanied with the same allegations as are required when charged in a bill. (Morrell v. Morrell, 3 Barb. R. 236.)

§ 692. It has always been the practice in the ecclesiastical courts, in cases for divorce, to require the husband to advance the means to the wife to enable her to prosecute or defend the action, whether she be plaintiff or defendant; and this has also been the general practice of the American courts. Formerly it was usual to require this almost as a matter of course, but of late the rule has been relaxed. It is now held not to be a matter of right, under all circumstances, for the wife who has commenced a suit for a divorce or for a separation, or against whom the husband has brought his action for a divorce, to require the court to direct an allowance to be paid to her by the husband, plaintiff or defendant, for the purpose of defraying the expenses of the suit. When it is probable, however, that the wife may succeed in such action, and when it appears that she is destitute of the means of carrying on or defending the action, as the case may be, it is almost a matter of course, at the present day, to require the husband to make the wife a reasonable allowance for the necessary expenses of the suit, having a due regard to the value of his property, the amount of his income from his own exertions, and the necessary support of himself and others who have claims upon him for subsistence. And, as it would be improper for the wife to cohabit with her hus

band during the pendency of the action, if she is unable to provide for her own subsistence, and he has the means of supporting her, it is also a matter of course to require him to contribute of those means to furnish her with the necessary clothing and subsistence, until it can be legally determined whether the charges preferred are true or false. But if the proofs presented on the application render it morally certain that the action brought by the wife will ultimately fail for want of merit; or if it is made to appear, when the action is brought by the husband, that the wife lived in adultery, or a life of prostitution, the allowance will not be made. (Kock v. Kock, 42 Barb. R. 515. Jones v. Jones, 2 Barb. Ch. R. 146. Whitney v. Whitney, 22 How. Pr. R. 175. Carpenter v. Carpenter, 19 ib. 539.) It is not at all a matter of course to allow an advance to the wife on a bill filed by her for divorce a mensa et thoro, to enable her to prosecute her suit. Injury and a meritorious cause of action must be made to appear, and then a suitable allowance will be made. (Worden v. Worden, 3 Edw. Ch. R. 387.) Where the husband comes for divorce, and his wife denies on oath the charges made against her, he must supply money for temporary support, and to help the wife to make her defense; his poverty will not shield him; he must conform to the rule or abandon his suit. (Purcell v. Purcell, 3 Edw. Ch. R. 194. Bruere v. Bruere, 1 Curt. Ec. R. 566. Walker v. Walker, Ib. 560.).

Sometimes the matter of advances by the husband to the wife, to enable her to prosecute or defend the action of divorce, is regulated by statute; but, if there be no statute upon the subject, the allowance, in a proper case, will be made. (North v. North, 1 Barb. Ch. R. 241. Mix v. Mix, 1 Johns. Ch. R. 108. Story v. Story, Walker's [Mich.] R. 421. Fishli v. Fishli, 2 Litt. R. 337. Amos v. Amos, 8 Green's Ch. R. 171. Patterson v. Patterson, 1 Halst. Ch. R. 389. Ryan v. Ryan, 9 Mo. R. 539. McGee v. McGee, 10 Ga. R. 477. Farwell v. Farwell, 31 Maine R. 591. Melizet v. Melizet, 1 Parson's R. 78. Ricketts v. Ricketts, 4 Gill's R. 101. Daiger v. Daiger, 2 Md. Ch. R. 335. Tayman v. Tayman, Ib. 393. Coles v. Coles, Ib. 341.) In Connecticut, when the wife is respondent and defends herself against the application of her husband, the practice is uniform to order him to provide, in case of her inability, funds for her defense; but it seems that such aid is never furnished her when she is the prosecuting party. (Shelton v. Pendleton, 18 Conn. R. 417.)

CHAPTER XLIV. .

THE DECREE IN A DIVORCE SUIT-ALIMONY AND THE RULES RESPECTING IT -THE EFFECT OF THE DECREE OF DIVORCE VALIDITY OF FOREIGN DIVORCES CONCLUSION.

§ 693. THE decree in a divorce suit is the sentence or judgment of the court, dissolving the marriage relation, or separating the parties from bed and board, as the case may be, and determining the incidental rights of the parties in respect to each other and to society. In England they have a statute which provides that "every decree for a divorce shall in the first instance be a decree nisi, not to be made absolute till after the expiration of such time, not less than three months from the pronouncing thereof, as the court shall by general or special order from time to time direct; and during that period any person shall be at liberty, in such manner as the court shall by general or special order in that behalf from time to time direct, to show cause why the said decree should not be made absolute by reason of the same having been obtained by colInsion, or by reason of material facts not brought before the court; and, on cause being shown, the court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise, as justice may require." (23 and 24 Vict. ch. 144, § 7. And vide Boulton v. Boulton, 2 Swab. & Tris. R. 405. Stoate v. Stoate, Ib. 384. Lewis v. Lewis, Ib. 394.) But this practice does not generally obtain in the American States. The decree in the first instance is made absolute, although, for good cause shown, the court would open the decree and hear the cause further. If, however, the divorced party has married in the mean time, the case would have to be an extreme one for the court to interfere. (Vide Olin v. Hungerford, 10 Ohio R. 268. Piatt v. Piatt, 9 ib. 37. Laughery v. Laughery, 15 ib. 404. Johnson v. Johnson, Walk. [Mich.] R. 309. Smith v. Smith, 4 Paige's Ch. R. 432. Dunn v. Dunn, Ib. 425. Colvin v. Colvin, 2 ib. 385. Boggess v. Boggess, 4 Dana's R. 307. Jeans v. Jeans, 3 Harr. [Del.] R. 136. Lucas v. Lucas, 3 Gray's R. 136. Sheafe v. Sheafe, 9 Fost. R. 269. Hoffman v. Hoffman, 30 Penn. R. 417. Mansfield v. Mansfield, 20 Mo. R. 163. Smith v. Smith, Ib. 166.)

§ 694. The form of the decree is generally prescribed by statute. In cases of divorce a vinculo matrimonii the decree declares the

dissolution of the marriage contract, and further provides that the defendant is prohibited from marrying again until the complainant is actually dead, but permitting the complainant to marry again, the same as though the defendant was actually dead. The decree also regulates the question as to the custody of infant children, if the parties have any, and sometimes as to the property of the parties. (Hansford v. Hansford, 10 Ala. R. 561.) In some of the states, however, the dissolution of the marriage relation is absolute as to both parties, and they may both marry again, as though they had never before been married. In cases of divorce a mensa et thoro the decree provides for the separation of the parties and the support of the wife apart from her husband, and for the custody of the infant children of the parties, if they have any; and, as a general rule, when the wife succeeds in the action, the decree provides for the collection of her costs and expenses out of the husband, whether the case was for an absolute or limited divorce. (Vide Graves v. Graves, 2 Paige's Ch. R. 62.) In some cases, where the wife is defeated in her action for a divorce, her costs will be allowed against the husband. Thus, in a case before the Alabama courts, the learned judge said: "It was manifestly wrong to render a decree against her for costs in a suit prosecuted against her husband under any circumstances; but, in this case, the court is of the opinion that he should have been compelled, by the decree, to pay the same, as from the admissions of the answer it appears that she had probable cause for instituting her proceedings, although she may not have been able to prosecute the case to a successful issue." (Richardson v. Richardson, 4 Porter's R. 467, 478, 479.) But, however the case may be, the decree usually determines the question of the wife's costs, and oftentimes other incidental matters not necessary here to be noticed.

§ 695. It may also be affirmed as a general proposition, that when there is a separation decreed upon the application of the wife, alimony will be allowed if the wife asks it. Alimony in law is the allowance made to the wife out of the husband's estate or income, upon a decree of separation. This allowance is made upon the theory that the husband is bound to support his wife, and this obligation does not cease after her separation from him for causes originating with him after the marriage. "This alimony, in strictness of law,, being a duty properly due from the husband to the wife during her cohabitation with him, the canon law says, that