#### *Sarah Prince vs. George Prince.*

Jewish marriage in England established on evidence against the oath of the husband, [a.]

Alimony will be decreed against a husband, who has the means of supporting his wife, though he has no visible property, or fixed and permanent income.

Bill for alimony. The bill stated that about the year 1834, the plaintiff intermarried with defendant; that for some time she faithfully and affectionately discharged all the duties of his wedded wife; that she bore unto him one son ; and that about one year after their marriage, he neglected and ill treated her and the child; that he finally entirely deserted his family, and has since continued to live in open and unconcealed profligacy with a concubine, leaving his family dependent for support on the exertions of the plaintiff. That the defendant is an apothecary, in comparatively easy circumstances, making from fifteen to *283twenty dollars per day; that he had not, for several years, contributed at all to the support of his family, and that the plaintiff had great difficulty in supporting herself and family. The prayer was that the defendant be compelled to allow the plaintiff a sufficient portion for the maintenance of herself and child, and for further relief.

The defendant in his answer denied most positively that he had ever intermarried with the plaintiff; that although he had intercourse with her, he did not believe that the child was his. He denied that he ever ill treated her, but admitted the desertion. He admitted that he carried on business as a dealer in botanical medicines, and thereby made a comfortable subsistence, but by no means equal to the amount stated.

The case came on for trial in Charleston, in January, 1841, before DunkiN, Ch. when the following testimony was taken.

Foe, the Plaintiff.

*Rev. J. Bachman.*— Thinks he met the High Priest Herchell once two years ago at a friend’s house in London; his friend shewed him a note from the High Priest, in English; looked at it, only saw it once; there is a similarity in the handwriting of the note and of the certificate produced ; if he had received a letter with this signature, he should not have doubted that it was his — Herchell is the High Priest, and is a very respectable man. Christians as well as Jews spoke well of him — witness did not meet him at this friend’s house, but afterwards in company he saw him.

*Mr. Poznanskie*— A member of his congregation applied to him as the Pastor on the part of the law to obtain a divorce; to the best of his knowledge the defendant agreed to give her the divorce; it was made out, but afterwards recalled; defendant was several times at his house and had conferences with him on the subject; would think he agreed to the divorce; the certificate was first handed to witness by the gentleman who applied in her behalf; saw it several times, and at last translated it into English; cannot tell whether defendant saw it in his, witness’s, presence; believes he spoke to him (Prince) about it; told him she had a certificate; he related to him circumstances by which he did not admit she was regularly his wife; that he had been forced to it by fear; did not deny that a marriage had taken place, as stated in the certificate, though he had at the time some mental reservation; that his mind did not correspond with his actions.

*284The mode of marriage as stated there, is the form prescribed by the law in presence of two witnesses, whether performed by a minister or not. This is not a marriage certificate, it is.only a memorandum of the reader as to the statement made to him.

Yery seldom that a marriage takes place merely in the presence of two witnesses, without more witnesses or a clergyman.

*Cross-examined.*— Certificate is in Hebrew, the other part is in German. This is not the form of a marriage certificate; it is never executed after the marriage has taken place at a previous time.

The signatures of the witnesses is not to the certificate, only that of the Priest. Defendant did not originally apply for a divorce, but he came also, and it was to take place with his con-, sent; defendant said to him that he had some mental reservations, that his mind did not accompany the act of marriage', that he did not give her the ring with a view of remaining; he said that. he had been frightened into it: he had been cohabiting with her before that; that in consequence of this he had married her; he said that he had commenced the word but had not continued the right words, but had substituted words of cursing ; considered himself frightened into it; did not deny it had taken place in presence of two witnesses ; can’t say he spoke of it as a frolic; might have considered it as serious, as he said he had been frightened into it; that it was not voluntary; it is a very serious ceremony; some celebrate it for two or three days, always that day; if done according to the requisitions of the law, it is a marriage; thinks that defendant requested him to attend to it, to grant the divorce. Witness told the defendant that the divorce could only be valid in a religious view; believes that he mentioned to a gentleman the necessity of seeing Prince to obtain his name ; defendant came in consequence; he certainly consented to a bill of divorce being entered according to their laws ; he was under the impression that as he did not read all the words she was not his wife ; witness explained the contrary; witness recollects no similar marriage to this; in the process of divorce, the writer is requested to divorce such a person as his wife ; it was so understood; the divorce was not executed.

*Joseph Hurtz*— Carried money, $10, from defendant to Mrs. Mengy’s, to pay Mrs. Prince’s board.

*Mr. Cohen.*— Mrs. Prince was in his house over a week; defendant paid $3 for the board; she and her child.

*Cross-examined.*— Witness asked defendant for the money.

*285Witness lived at Portsmouth 10 years; was a teacher ; this is not a certificate of marriage; there are two kinds of marriages ; one before the reader, another clandestine, which must be in the presence of two witnesses ; this is not a certificate of bethrothment.

High Priest never puts his name to a certificate in English; never saw English and Hebrew on the same paper; would not give credit to this as a certificate of marriage.

Foe. Defendant.

*Solomon Aloses.*— Complainant came here, with letters to witness, requesting his good offices ; stated the case ; witness called on her at Mr. Cohen’s in consequence of what passed; thought Prince was her husband ; witness called on Prince, gave a day or two to consider it; witness called on Mr. Moise, as her lawyer ; met at his office with defendant, and endeavored to persuade him to have no difficulty. She said, if she could get 3 or $400, and get a divorce, she would be content; witness persuaded defendant to do it, who expressed his willingness ; defendant borrowed $200. Mrs. Prince observed, she would not give him a divorce ’till the amount was paid; he said the other $100 should be soon paid ; then something was said about board ’till the $100 was paid; he agreed to do that; that sum being ready, witness called on Mr. Poznanskie, and every thing was arranged, the consent of trustees was obtained, and after all was ready, complainant declined to take the $300, as it was not enough.

Defendant is a poor man, does not believe he possesses any property ; knew the defendant two or three years by sight.

*Cross-examined.*— She did not agree to go away without a divorce; Mr. Poznanskie has been reader or Priest four years ; four years in this city; very learned Priest.

*Hart Levin.*— Knew complainant in Portsmouth five years ago ; never knew her as Mrs. Prince, (two persons said that was Mrs. Hyams ;) she was travelling with her pack of jewelry; met her in New-York ; was six weeks in Portsmouth.

*Mr. Ottolengui.*— Produces common marriage certificate— this produced by complainant does not purport to be a certificate of marriage; there are two kinds. It has been done in the street; Mrs. Hyam’s marriage corner of Horlbeck’s Alley.

*Cross-examined.*— Has known a woman to resume her name when deserted by a husband; were people of low standing.

*Mr. Harris.*— Lived four years in London ; not the form in which a certificate is given.

*286
      *Albert Lyons.*— He is well versed *in*Hebrew, *and in*Poland was a Priest of the Hebrew Congregation. Is acquainted with the Hebrew law of marriages. Putting on a ring and proper words. Thou shall be betrothed *to me*according to the laws of Israel and Moses, in presence of two witnesses, constitutes a betrothment only, and not a marriage. Betrothment does not authorize cohabitation. It subjects the parties to punishment by stripes. She is not thereby entitled to support, but if she wishes to destroy that tie, there must be a divorce. To perfect this into a real marriage, it is necessary she should come to the canopy, and have seven blessings pronounced with the ceremonies ; merely living together without these ceremonies, is only prostitution; never knew it otherwise ; law of the Israelites same every where ; the words are *essential.*

*By the Chancellor.*From the testimony of Mr. Poznanskie, the court has come to the conclusion that a ceremony took place between the parties, which, according to the Hebrew law, constituted a valid marriage ; but it was very informal; such, according to Mr. Poznanskie’s evidence, as he had never before known.

The ceremony took place at Portsmouth, England, on the 2d March, 1835. The defendant was a traveller, and the witnesses were accidentally present. The condition in life of the parties was probably very humble, and does not appear since to have been much improved. This court can only interfere for the purpose of giving alimony. No satisfactory *testimony*was given as to the pecuniary means of the defendant. One witness thought he depended on his daily labor for his support. If the condition in life of the parties is such that neither had property, and they were both to labor for subsistence, it is very questionable whether a case for alimony is presented.

But the complainant alleges that she has a child by the defendant, and that the income of the defendant, from his occupation as an apothecary, or as one of the witnesses styled him, a root doctor, was not less than four or five thousand dollars.

Let it be referred to the Master to enquire and report what is the pecuniary condition of the defendant, and that the Master have leave to report any special matter.

In February, 1844, this case again came up, on exceptions *to*the Master’s report, before Johnston, Ch., who pronounced the following decree:

This case comes up again, upon the report of the Master, accompanied by evidence, and exceptions put in by the defendant.

*287The bill states that the parties, who are Jews, were married in England several years ago, and that after a short period of cohabitation, the defendant deserted his wife, who has a child by him, came to this State and took another woman to his bed, and now lives with her in comfortable circumstances, the fruits of his income as a druggist.

The answer denies the alleged marriage with the plaintiff, although it admits that the defendant cohabited with her; and repudiates the child, although born after the cohabitation. It evades the charge of illicit intercourse and cohabitation with another woman; but admits that the defendant is living comfortably, and in the enjoyment of a reasonable income from his employment of a druggist.

The case was heard by Chancellor Dunkin. who delivered a decree on the merits in February, 1841. This decree establishes a marriage between the parties on the 2d of March, 1835. This fact being established, the answer sufficiently sustains the charge of desertion. Proceeding upon this assumption, as I suppose, the Chancellor regarded the case as having been made out by the plaintiff; the only remaining question before the court was as to the remedy to be administered. Upon this, the Chancellor remarks: “This court can only interfere for the purpose of giving alimony. No satisfactory testimony was given as to the pecuniary means of the defendant. One witness thought he depended on his daily labor for his support. *If the*condition in life of the parties is such that neither had property, and they were both to labor for subsistence, it is very questionable whether a case for alimony is presented. But the plaintiff alleges that she has a child by the defendant, and that the income of the defendant, from his occupation as an apothecary, or (as one of the witnesses styled him) a root doctor, is not less than- four or five thousand dollars. Let it be referred to the Master to en-quire and report what is the pecuniary condition of the defendant, with leave to report any special matter.”

The report which now comes up, states that “the Master does not find airy proof that the defendant is in possession of any estate, either real or personal; but from the testimony submitted, he finds that he is in the receipt of money ; that he lives comfortably and well; and that in the Master’s own mind there is little doubt that he is in possession of funds sufficient to meet any decree that may be awarded against him.”

Every question raised in the exceptions is expressly, or by *288necessary implication, concluded by the decree, except the single one whether alimony can be decreed in respect to the income of the husband, arising not from capital, but from his daily labor and diligence; and if it can, then what should be the amount of it in this case.

The evidence reported shews the existence of considerable, income. The answer admits it. It appears that the defendant has been in the habit of taking boarders ; that he vends medicines, and occasionally administers them; that he lives in a hired house, for which he regularly pays a considerable rent; and that he supports a woman who lives with him : and one of the witnesses, who collects for him, leaves the impression that his income may, reasonably, be estimated at not less than $1800 per annum. The question is whether a husband,' in these circumstances, is not bound to contribute to the support of his wife whom he has deserted.

Let us look into this question with a view to principle, as well as to authority. It is one of most serious import, especially to the humbler and more defenceless classes of the community. If the wealthy man denies to his wife the duties of the marriage relation, there is no difficulty in' compelling him to sustain her out of his property. But it seems to be doubted whether the poor may not desert their duties with impunity. Is this so *'l And if*so, upon what principle can *the distinction be*sustained.

By marriage the husband becomes entitled to whatever personalty the wife may possess, and to all her earnings. She is reduced to a state of comparative servitude. She cannot change her situation by another marriage, more agreeable or more beneficial to her. She is deprived of the power of making contracts j and, of course, of the means of accumulating property, or laying by the means of subsistence in sickness or old age. Will it do to say that the husband, entitling himself to all these advantages, and subjecting the wife to all these disabilities, by the marriage, is not bound, by all the means in his power, to sustain her *1*Arid if he deserts her, shall his desertion, which is, itself, a wrong, excuse him from the performance of this obligation *1*Certainly not. It would be a reproach to the law if it were so. God knows, the condition of all women, but especially of married women, is bad enough by the common law of England, and advancing civilization loudly demands its amelioration. But that law, which almost enslaves the wife, makes the husband liable for her support. It is a duty he has undertaken, with her *289aid, if he chooses to avail himself of it j and for which he is bound, if he rejects that assistance.

No doubt, circumstances must have their influence in determining the amount which should be decreed to an abandoned wife. If the parties are laboring people, the wife needs less. ,If she is in bad health, however, the amount should be increased. If the labor of the husband is of a comparatively unprofitable character, or if he is sickly, allowance should be made for these circumstances. If, on the other hand, he is in good health, and skilful, and is actually realizing considerable profits, the partner of his fortunes should not be refused a reasonable participation in them. Every case must be governed by its circumstances.

Certainly most of the reported cases shew that alimony has been decreed out of visible property, or fixed and permanent income. But the visible property is only evidence of the .income : and permanent and fixed income, such as annuities, and the like, is only resorted to because of its greater certainty, and as furnishing a surer means of administering redress. But when income is proved to exist, although not fixed, but dependent upon the daily exertions of the husband, this shall not be exempt ; and he, in respect to it, will be compelled to do what law and moral duty require of him.

Thus in *Biggs vs. Biggs,*and in *Dawson vs.*Dawson, mentioned by Sir John Nicholl, in *Cooke vs. Cooke,*2 Philim. 44, 45, and cited by Shefford, 494, alimony was decreed out of the income of a seller of venison, and a working jeweller.

The principle in fact is, that in all cases you are to look to the means of affording a remedy; and if you can find them, the remedy should be administered.

In this case it is vain to deny that the defendant has the means of supporting his wife. The fact stares us in the face, that he does support another woman, and lives in comfort.

It is said, however, that casualties may hereafter reduce his means. The same argument would apply if he were in the possession of tangible property. The act of God may strip him of that. If this were a suit for debt, we should feel no hesitation in decreeing it, without reference to any contingency. Is the right of a wife of a less sacred character than a creditor’s demand ? We only refer to the means of the husband in the one case, and not in the other, because the wife has embarked with her husband in a common bottom, and is bound to share *290in his fortune, whether good or bad. But another answer is that a decree for alimony is not unchangeable. Under a change of circumstances, the amount may be either increased or diminished : though this is seldom done, and never for light or trivial causes.

(See Shefford on Marriage and Divorce, 596.)

But, unquestionably, the same amount should not be allowed’ out of a contingent, as out of a fixed and permanent income. It would be unreasonable todo so. We have an example to this effect in *Hawkes vs.*Hawkes, 1 Hagg. Eccl. R. 526, where the allowance was limited, because the husband’s income arose not from substantial property, but from his pay, which was of uncertain duration.

I will close what I have to say on this head, by repeating that the allowance is a matter of sound discretion, and that in making it, all the circumstances must be considered : with this *farther*observation, that more is to be allowed to the wife when, by a decree on the merits, the husband is decided to be in the wrong, than *'pendente*lite, when this must necessarily be unascertained; and by adverting to the general rule, that a greater proportion is to be allowed out of a small than a large income. See the case of *Cooke vs. Cooke,*before referred to. Having now determined the general principles, by way of direction to the Master, I shall recommit the report; that he may, upon the evidence already before him, or which shall be offered, report a reasonable estimate of the defendant’s income, and a specific sum to be allowed out of it, for alimony.

Something is said in one of the exceptions, with respect to the child, as if it were disputed that this child is the child of the plaintiff, or born within wedlock. The Master will hear evidence on this point, if offered, and report *accordingly;*and if the child shall, from the evidence, appear to be defendant’s, its support and education will also be considered and reported upon.

The defendant appealed from the decree of Chancellor D unkin, on the following grounds :

1. Because there was no proof of a‘marriage between the complainant and the defendant.

2. Because the testimony shewed that there was no *intention, to*consummate a marriage.

3. Because the ceremony which is alleged to have taken place *?was informal, and insufficient, according to the Jewish law, to constitute a marriage.

(a) Vide Shef. on Mar. & Div. chap. 2, sec. 4, p. 67 *et seq.*

4.Because the answer denied the marriage, and no sufficient proof to contradict the answer was produced.

1. And, also, from the decree of Chancellor Johnston : Because this was not a case where alimony could be allowed.

*2.*Because alimony cannot be decreed out of the profits of daily labor ; nor can a decree for alimony be granted in any case, unless the party charged as the husband has some fixed income, which is permanent and certain, and from which, as out of something certain, alimony can be decreed to be paid.

3. Because there was no proof that the woman was herself unable to get her living by her labor.

4. Because the parties being both aliens, recently arrived in this State, and not here married, our courts will not interfere, where there is no property under its jurisdiction.

5. Because there was no proof that the woman making the claim had ever occupied the station of wife to defendant, or that there was any cohabitation subsequent to the alleged marriage.

6. Because the certificate admitted in evidence, was not verified by oath or cross examination of the witnesses, who should have been examined on commission.

*Magrath*and Yeadon, for the appellant.

*Elliott,*contra.

Curia, *per*Johnston, Ch.

The court sees no reason to differ from the decree as to the fact of marriage, nor from the instructions under which the report was recommitted to the Master. Certainly, there is nothing in the instructions to preclude the Master from enquiring what income the wife makes by her own labor and exertions ; or from taking that into consideration, in estimating the alimony to be allowed her. On the contrary, the import of the instructions is, that every circumstance may be taken into consideration.

It is ordered that the appeal be dismissed and the decree affirmed.