Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1869-08-25

A Celebrated Case--The Suit of Frank
Leslie for Divorce Denied by Judge
Brady-He IN Required 10 Pay his
Wife $50 Per Week AlimOny IndeH.
niteIy.
From the New York Times. August III
The famous case of Mr. Frank Leslie,
the publisher, versus Sarah Ann Leslie,
his wife, for divorce, commenced nearly
two years ago, has at last practically
reached termination. The decision OF
Judge Brady, yesterday was in the second
suit brought by Mr.. Leslie to relieve him
self of the payment of costs and allow
ances incurred in the first. Mr.. and Mrs.
Leslie were married in~England. About
eleven years ago he separated from her
and did not live with her up to the time
of the commencement of the suit. 10 the
original suit for divorce the decision was
adverse to Mr.. Leslie, and he was re-
quired to pay his wife an allowance Of
$50 per week. Mr.. Leslie appealed from
this decision to the General Term, and
after elaborate argument a decision was
rendered confirming the order appealed
from by majority of the Court. On
that occasion two elaborate decisions
were written by Judges Brady and Bar
rett, exhausting oil the laws on the sub
ject, and both remarkable for legal learn
ing unanswerable argument, and the
spirit of equity pervading them. Subse-
quent to this decision the plaintiff sought
to discontinue the action without the
allowances previously made by the Court
in conformity with wellsettled precedent;
and, after hearing argument thereon,
Judge Brady has rendered decision de-
nying the right of the plaintiff to discon-
tinue without the payment of the allow
ances legitimately incurred consequent
on the commencement of the action, the
amount being fixed to correspond with
the income of the plaintiff, which was
shown on the proceedings to amount to
100000. The following extract from
the Judges opinion. just published in the
case, sets forth the grounds for his deci-
sion:
at is said in Daniels on Practice (p.
73l, 4th London edition. that when there
has been any proceeding in the case
which has given the defendant a right
against the plaintiff the latter cannot dis
miss his bill, of course. The cases cited |
10 sustain such proposition seem to JUS
tify it. The rule is sound one in equity,
ifit be not in common law cases. Where
an action of divorce is commenced
against woman, an application for ali
mony and counsel fee will be entertained,
and, if granted, the payment of both may
be enforced by the process of the court
kn nF ho ]
plaintiff. The order to pay is, in effect,
equivalent to the amount of costs regu-
lated by The statute, and as long as the
action continues, the almony is an Incl
dental expense or legal charge against
the plaintiff, which he must pay before he
can discontinue. The right to it accruss
upon the entry of the order allowing it,
and the power to enforce the payment
arises upon its becoming due and the de-
fault of the plaintiff in paying it. There
are familiar rules as to the right and its
which it is not necessary to
demonstrate by reference to any cases.
The right being established as the RESULT
of an order or interlocutory decree, which
is in its nature judgment for the pay
ment of money, the defendant cannot be
deprived of it by discontinusnce of the
action, without leave, after due notice.
There is no hardship in the rule thus de-
clared. By commencing the action the
plaintiff subjects himself voluntarily to
the power of the court to compel him to
make suitable provisions for the support
of his wife and the protection of her
rights, and when the power is exercised
he is relieved from the obligation of sup
porting her by any payments other than
those required by the order which may
be made. 1t is legal presumption that
the husband is liable for the support and
of his wife, and it is rea-
sonable conclusion therefrom that if he
does not pay the alimony, he will be
to pay its equivalent 10 o diff.
fereht IaoGe. but, whether this be so or
not when an order is made granting ali
mony, it becomes part of the costs or
burden Of the action, and as long as the
order remains unrevoked by the court.
must be- obeyed. For these reasons |
think the omission of the plaintiff to pay
the alimony, msd5 tho discontinuance
which he sought to perfect nulliiy.
Having arrived at this conclusion upon
shteiui COuoiuCfauOu W tuO FOihei " ,
may not be necessary to Feisf 10 the
that, IS t6e defendant has
sought affirmative relief, the plaintiff
cannot discontinue the action in any
event; but deem it proper to say that |
hink that view uRtensble. thu de,
endsnt meant 70 hesoRe Gu ACTOR, de:
Iirops Of diyorce, and to relieve herself !
rom the contingency of discontinuance
If this, she should hsye conmenaod Gn !,
.ctou, and in that way secured the legal
attitude which she now seeks Of being :
he acting or aggressive party. II fol- !
ows from these views that, although l y
hink the discoRtinusnce attempted by
be plaintiff nullity, he may discontinue {
bis action on the payment OF the all Q
nony due and counsel Fee already or
erred 10 be paid, c