of Chicago, and another act of infidelity in London, England, with a resident of that city, it may be presumed that the defendant can easily obtain the affidavit of the first mentioned co-respondent to substantiate her denial, but she cannot be said to have available the testimony of the second. The difficulty with any such qualification is its lack of practical value. The co-respondent, it may be presumed, will lie like a gentleman, and the net result of such a qualification would probably be nothing more substantial than the addition of a few well-turned phrases to the lore of a science already overstocked with them.

The words of the statute,26 that the wife is entitled to alimony pendente lite "when it is just and equitable," are often seized upon as a means of injecting the merits into the hearing, but in view of the rules above mentioned with respect to the merits, the words of the statute obviously mean when it is just and equitable aside from the merits; that is, in view of the financial condition of the respective parties.27

Whether the granting of alimony pendente lite is a matter of discretion or whether the wife be entitled to such alimony as a matter of right in a proper case, is a question more academic than real. In general, it may be said that those cases wherein the award of the chancellor is affirmed speak of the awarding of alimony as being a matter within the discretion of the chancellor, while those cases wherein the order denying alimony is reversed speak of alimony pendente lite as a "right" to which the wife is entitled.28 It would seem clear that it is not a matter of discretion within the true meaning of that term,29 but is rather within the scope of that sound, judicial discretion which is law and not discretion at all.3

30

Having determined, in the light of the rules above mentioned, that the case is one wherein an award of alimony pendente lite should be made, the chancellor must then determine the amount. The method of computing the allowance, which varies from onefifth to one-half of the joint income, according to the circumstances of the case, is stated in the Harding case31 and is too familiar to warrant discussion. Interesting questions arise, however, in dealing with the wife's separate property, particularly with respect to non-income producing property. To state a concrete example, in

26. Hurd's Rev. Stat. Chap. 40 § 15.

27. Arnold v. Arnold (Mo.) 222 S. W. 996.

28. See appendix Sec. 10.

29. State v. Cummings 36 Mo. at 278.

30. Osborn v. United States Bank 22 U. S. (9 Wheat.) at 866.
31. 144 Ill. 588.

the Joyce case, the defendant possessed a fortune of approximately one million dollars in jewelry, furs, etc., but only an inconsequential amount of income-producing property. The bill of complaint, however, alleged that the greater part of such property belonged, in fact, to the complainant and prayed the court to order its return. The title of the defendant was, therefore, seriously clouded and it would have been, as a result, practically impossible to dispose of the property. The property was, therefore, of little consequence so far as concerned its immediate availability for income-producing purposes. But assume the absence from the bill of such allegations and prayer. The general rule is, that since alimony relates solely to income, non-productive property is not considered 32 and the wife is not required to encumber the corpus of her estate,33 or to sell her jewelry.34

The Supreme Court of North Dakota,

however, has injected

a discordant note into an otherwise harmonious doctrine. In the case cited, the court, speaking through Mr. Justice Fisk, said:

"The books are full of cases holding that temporary alimony, suit money, and counsel fees will be granted the wife almost as a matter of course; but this rule had its origin at a time when the wife was not permitted to own any separate estate. It is the rule of the ecclesiastical courts of England, but it ought not to have any application under our present statute. The reason for the rule having ceased, the rule itself should cease. The wife is now on an equality with her husband, so far as the right to own and control property is concerned; and where she has ample means of her own it would ordinarily be an abuse of discretion to require her husband to furnish her with temporary suit money and attorney's fees in a divorce action, for all she is entitled to is to be placed on an equality with her husband, so far as the ability to prosecute or defend the action is concerned."

The court seems, in the foregoing statement, to take judicial notice of the fact that women have gained a position of economic equality. It would be beyond the scope of this article to discuss the question of whether or not, in view of that fact, the prevailing rule should be recast in such a way as to rest primarily upon the possession of principal instead of income, but it is obvious that if the theory contained in the excerpt be adopted, woman, having acquired all of man's most cherished privileges, is about to have

32. Laciar v. Laciar 6 Pa. Co. Ct. 406; Miller v. Miller 75 N. C. 70. 33. Meyer v. Meyer 5 Cal. Unrep. 944, 52 Pac. 485; see appendix Sec. 14. 34. Sinn v. Sinn 23 N. Y. S. 339; aff. 140 N. Y. 636, 35 N. E. 892. 35. Bailey v. Bailey 22 N. D. 553, 134 N. W. 747. See also Rutledge v. Rutledge (Mo. App.) 119 S. W. 489; Collins v. Collins 80 N. Y. 1; Cent. L. J. LXIX 63.

thrust upon her one of man's most arduous burdens-that of supporting herself, in time of difficulty, from her own property instead of someone else's.

APPENDIX

AWARD OF ALIMONY TO WIFE

Sec. 1. Cases stating the problem before the chancellor: Vandergrift v. Vandergrift 30 N. J. Eq. 76; McGee v. McGee 10 Ga. 477; Walker v. Walker 10 Ont. Pr. 633; State ex rel. Wooten v. District Court (Mont.) 189 Pac. 233.

Sec. 2. The wife is presumed to be innocent of the charges against her.

Bird v. Bird 1 Lee Eccl. 209; State ex rel. Wooten v. District Court (Mont.) 189 Pac. 233; Law v. Law (Sup. Ct.) 140 N. Y. S. 310; Kline v. Kline 1 Phila. 383; McGee v. McGee 10 Ga. 477.

Sec. 3. The wife's denial under oath of the charges shows good faith and prevents hearing of evidence.

Reifschneider v. Reifschneider 241 Ill. 92; Vandergrift v. Vandergrift 30 N. J. Eq. 76; Lind v. Lind 37 Ill. App. 178; Brown v. Brown 145 N. Y. S. 471, 146 N. Y. S. 1085.

Sec. 4. An admitted marriage, though alleged to be invalid, justifies the chancellor in awarding alimony pendente lite, if the wife controverts its invalidity.

Reifschneider v. Reifschneider 241 Ill. 92; Harris v. Harris 8 Ill. App. 57; Nelson v. Nelson 200 Ill. App. 584; Brinkley v. Brinkley 50 N. Y. 184; Eickhoff v. Eickhoff 29 Colo. 295, 68 Pac. 237; Hite v. Hite 6 Cal. Unrep. 216, 55 Pac. 900; Ex parte Jones 172 Ala. 186, 55 So. 491; Walker v. Walker 10 Ont. Pr. 633; Webb v. Webb (Ga.) 104 S. E. 637; Matthes v. Matthes 198 Ill. App. 515; Bowman v. Bowman 24 Ill. App. 165; Bardin v. Bardin 4 S. D. 305, 56 N. W. 1069; Purcell v. Purcell 14 Va. 507; Leckney v. Leckney 26 R. I. 441, 59 Atl. 311; Vincent v. Vincent 17 N. Y. S. 497; State ex rel. Wooten v. District Court (Mont.) 189 Pac. 233; Hochreiter v. Hochreiter 138 Ill. App. 373; Higgins v. Sharp 164 N. Y. 4, 58 N. E. 9; Frith v. Frith 18 Ga. 273; Paul v. Paul 201 Ill. App. at 597; Vandergrift v. Vandergrift 30 N. J. Eq. 76; Note in 4 A. L. R. 926.

But see Freeman v. Freeman 49 N. J. Eq. 102, 23 Atl. 113; State v. Superior Court (Wash.) 104 Pac. 771.

Sec. 5. Upon the hearing for alimony pendente lite, the chancellor is not at liberty to inquire into the merits of the controversy respecting the marriage.

Frith v. Frith 18 Ga. 273; Kline v. Kline 1 Phila. 383; Walker v. Walker 10 Ont. Pr. 633; Vandergrift v. Vandergrift 30 N. J. Eq. 76; Eickhoff v. Eickhoff 29 Colo. 295, 68 Pac. 237; Hite v. Hite 6 Cal. Unrep. 216; 55 Pac. 900; Ex parte Jones 172 Ala. 186, 55 So. 491; State ex rel. Wooten v. District Court (Mont.) 189 Pac. 233; Hochreiter v. Hochreiter 138 Ill. App. 373; Bagot v. Bagot (Colo.) 191 Pac. 96.

But see State v. Superior Court (Wash.) 104 Pac. 771; Robinson v. Robinson 87 Wash. 520, 151 Pac. 1128; Sims v. Sims (Miss.) 85 So. 73; Roseberry v. Roseberry 17 Ga. 139.

Sec. 6. But if the uncontroverted facts show that the marriage is invalid, no alimony may be awarded.

Arado v. Arado 281 Ill. 123; Knott v. Knott (N. J. Eq.) 51 Atl. 15; Jones v. Brinsmade 183 N. Y. 258, 76 N. E. 22; Collins v. Collins 71 N. Y. 269; Fuller v. Fuller 33 Kan. 582, 7 Pac. 241; Morgan v. Morgan (Ga.) 97 S. E. 675; Cent. L. J. II 200.

See also: McKenna v. McKenna 70 Ill. App. 340; Freeman v. Freeman 49 N. J. Eq. 102, 23 Atl. 113; Robinson v. Robinson 83 N. J. Eq. 466, 88 Atl. 951; 83 N. J. Eq. 150, 90 Atl. 311; 84 N. J. Eq. 201, 93 Atl. 699.

Sec. 7. Upon the hearing for alimony pendente lite, the chancellor is not at liberty to inquire into the merits of the controversy respecting the wife's alleged acts of misconduct.

Lind v. Lind 37 Ill. App. 178; Brown v. Brown 145 N. Y. S. 471, 146 N. Y. S. 1085; Cooper v. Cooper 185 Ill. 163; Leslie v. Leslie 6 Abb. Pr. (N. S.) 193; Arnold v. Arnold (Mo.) 222 S. W. 996; Burgess v. Burgess 25 Ill. App. 525; Whipple v. Whipple 145 Ill. App. 228; Johnson v. Johnson 4 N. J. L. J. 241; Slocum v. Slocum 86 Ark. 469, 111 S. W. 806; Methvin v. Methvin 15 Ga. 97; Osgood v. Osgood 2 Paige 621; Frickel v. Frickel 4 Misc. 382; Kendrick v. Kendrick 105 Ga. 38, 31 S. E. 115; Dean v. Dean (Sup. Ct.) 96 N. Y. S. 472; Elam v. Elam (Miss.) 91 So. 702.

But see Rawson v. Rawson 37 Ill. App. 491; Wright v. Wright 1 Edw. Ch. 62; Pratz v. Pratz 11 Pa. Co. Ct. 252; Miller v. Miller 2 Kulp 309; Fowler v. Fowler 4 Abb. Pr. 411; Kock v. Kock 42 Barb. 515; Griffin v. Griffin 23 How. Pr. 189.

Sec. 8. But if the wife had admitted the charges, or does not deny them under oath, alimony may not be awarded.

Stearns v. Stearns (App. Div.) 6 N. Y. Ann. Cas. 186; Rodell v. Rodell (Sup. Ct.) 175 N. Y. S. 268; Osgood v. Osgood 2 Paige 621; Williams v. Williams 114 Ga. 772, 40 S. E. 782; Collins v. Collins 71 N. Y. 269.

But see McNeil v. McNeil (Ga.) 112 S. E. 460.

Sec. 9. Wife is entitled to solicitor's fees and expense money, irrespective of guilt, and husband may not proceed with his case until they have been paid.

Millowitsch v. Millowitsch 44 Ill. App. 357; Allen v. Superior Court 133 Cal. 504, 65 Pac. 977; McGee v. McGee 10 Ga. 477; Pitel v. Pitel (N. J. Eq.) 107 Atl. 145; Rodell v. Rodell 175 N. Y. S. 268, 176 N. Y. S. 919; Pratz v. Pratz 11 Pa. Co. Ct. 252; Miller v. Miller 2 Kulp 309; Farrar v. Farrar (Cal. App.) 188 Pac. 289.

But see Sorsby v. Wilkerson (Ala.) 89 So. 657.

Sec. 10. Whether or not alimony pendente lite should be awarded, on the facts of the case, is a matter of law.

Foote v. Foote 22 Ill. 425 (semble); Petrie v. People 40 Ill. 334; McGee v. McGee 10 Ga. 477; Schonwald v. Schonwald 62 N. C. 215; Day v. Day 15 Idaho 107, 96 Pac. 431.

Sec. 11. Rule stated for ascertaining amount of alimony pendente lite.

Harding v. Harding 144 Ill. 588; Day v. Day 15 Idaho 107, 96 Pac. 431; Leslie v. Leslie 6 Abb. Pr. (N. S.) 193.

Sec. 12. When the wife's income is sufficient for her support, no alimony pendente lite will be awarded.

Carlin v. Carlin 65 Ill. App. 160; Westerfield v. Westerfield 36 N. J. Eq. 195; Richardson v. Richardson (Sup. Ct.) 94 N. Y. S. 582; Morrell v. Morrell 2 Barb. 480; Hood v. Hood (Md.) 113 Atl. 895.

See also Klekamp v. Klekamp 275 Ill. 98; Arnold v. Arnold (Mo.) 222 S. W. 996; Evans v. Evans (Miss.) 88 So. 481; Verbeeck v. Verbeeck (N. J. Eq.) 115 Atl. 136; Roth v. Roth (Md.) 122 Atl. 34; Abrams v. Rosenthal (La.) 92 So. 567, 96 So. 32.

Sec. 13. If the wife has accepted a settlement of property upon her, alimony pendente lite may be refused.

Collins v. Collins 80 N. Y. 1; Killiam v. Killiam 25 Ga. 186; Corey v. Corey 81 Ind. 469; Hillenkoetter v. Hillenkoetter (Mo. App.) 249 S. W. 428.

Sec. 14. Wife is not required to subsist upon the corpus of her estate.

White v. White 60 Ill. App. 149; Harding v. Harding 144 Ill. 588; Laciar v. Laciar 6 Pa. Co. Ct. 406; Miller v. Miller 75 N. C. 70; Sinn v. Sinn 23 N. Y. S. 339, aff. 140 N. Y. 636, 35 N. E. 892; Cignoni v. Cignoni 139 La. 978, 72 So. 707; Meyer v. Meyer 5 Cal. Unrep. 944, 52 Pac. 485; Anthony v. Anthony 9 N. J. L. J. 369; Small v. Small 42 Ia. 111; Davis v. Davis 174 Mo. App. 538; Hava v. Chavigny (La.) 83 So. 417; Farrar v. Farrar (Cal. App.) 188 Pac. 289; Kittle v. Kittle (W. Va.) 102 S. E. 799; McNeil v. McNeil (Miss.) 90 So. 327; State v. Locke (Ala.) 93 So. 876; Methudy v. Methudy (Mo. App.) 238 S. W. 568; Note in Cent. L. J. LXXII 209; Note in Cent. L. J. LXIX 63.

Contra: Rawson v. Rawson 37 Ill. App. 491;36 Bailey v. Bailey 22 N. D. 553, 134 N. W. 747; Osgood v. Osgood 2 Paige 621.

36. Followed in Harding v. Harding 40 Ill. App. 202, reversed 144 Ill. 588.