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DAIGER VS. DAIGER.337 efffect of defeating her suit altogether, before the usual oppor- tunity has ;been afforded of developing the full merits of the case; for if it be true, and in the absence of proof to the con- trary, it must be assumed to be true, that she has no means of living, or of defraying the expenses of the suit, and if the court, upon a preliminary proceeding like the present, and be- fore she is furnished with the means of procuring the attend- ance of witnesses, undertake to investigate, and decide upon the merits of the case, it is obvious that very few suits by mar- ried women against'their husbands, can ever be prosecuted successfully. The application presupposes, and is founded upon the allegation, that the wife is destitute of the pecuniary means of carrying on her suit, and, therefore, at that stage of the cause, to require her to show merits, or to engage in a con- test with her husband, in regard to the merits, would expose her to almost inevitable defeat, not only in the particular appli- cation, but at the final hearing, for which, if her prayer for money to conduct the suit fails, she would be wholly unpre- pared. The authorities, which have been .collected with great dili- gence, by the counsel engaged in the cause, fully support these views, and show, that in suits, instituted either by the hus- band or the wife, the latter is a privileged suitor, as to costs and alimony. Shelford on Marriage and Divorce, 533, etseq. It is believed, that no case can be found, in which the wife, living separate from her husband, and without an income com- petent to her support, and the maintenance of the suit, has been denied temporary alimony, and an allowance to enable her to de- fend herself, or prosecute her suit against her husband. In Wright vs. Wright, 1 Edwards, 62, the vice chancellor said, "an allowance to a wife of alimony, and money to carry on a suit, is almost a matter of course ;" that "in a suit, by a hus- band against a wife, for adultery, she is entitled to the means of making her defence," and in that case, the vice chancellor refused to consider affidavits, tending to criminate the wife, say- ing, "he would not go into the merits at that stage of the cause," and in Smith vs. Smith, same book, 253, temporary ali- 30 |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
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