Delaware gazette and state journal., 1896-01-16


1896. it is ordered, adiudged and de-
croed by the court that the finding and
award of Alexander B. Cooper, the
commissioners, be approved and affirmed
In all respects and the petition or libel
of Rosalie b. Addicks is hereby dis
missed. 1t is further ordered that John
Edward Addicks, the respondent, pay
the costs of this suit which arc taxed
at s7,312. 40 in sixty days from date or
attachment. -
The courts view Of the case was set
forth in the paper, read by Chief jus
tice Lore, which was as follows:
1.-THE report of Alexander b. Cooper,
ESQ.,, the commissioner in this case,
having been duly returned to this
court, with his finding or award there
on, That the petition or libel of said
Rosalie b. Addicks, the petitioner or
libelant be dismissed, and the same
having been duly considered by the
Court and no exception having been
filed to such finding or award, the same
Is hereby approved and affirmed.
1.-The question has been raised as to
whether the petitioner or the respond
ent shall pay the costs, which are taxed
at the sum of S7.3l2. 40 and admitted
on both sides to be correct in amount.
The question has been ably argued
by counsel on both sides. The i'm.
portance of the case in respect to tho
magnitude OF the costs, and the fact
that it demands construction of our
statute on divorce, makes it fitting that
there should he moro than Il formal
statement of our conclusions.
1.-The statute governing costs in
divorce cases, code 597, is as follows:
The costs in every case, including the
services of the commissioner, shall be
taxed by the Court, at the time of the
return Of the commission and made
payable as tho court shall adjudge.
The respondent claims that this
statute does not vest the Court with
discretion to say who shall pay the
costs, but only how or in what manner
they shall be paid. He further claims
that the petitioner having failed in her
suit, that she should pay the costs
under tho genera statute relating to
costs, code S52, which reads, and gen
orally party for whom final Judgment
is given in any civil action, or on a
writ of error upon judgment in such
action, shall recover, against the ad-
verse party costs of suit to be awarded
by the Court.
I'VE think the statute clothes the
Court with the right TO say VINO shall
pay the costs AZ we'll as how or the man
ner in which they shall be paid. That
discretion in us TO be used equitably
and lawfully, according to the circum-
stauces of each case.
N'lu England the Ecclesiastica Court
which had exclusive jurisdiction of the
subject of divorce, as this court has
under our statutes on that subject, the
rule governing costs was clearly stated
in 1907, by Sir William Scott, in the
leading case of Wilson Va. Wilson, 9
Haggard 203. In suits instituted either
by the husband or wife for consider
that fact to be indifferentl tho wife ia
n privileged suitor as to costs and ali
mony; on the same principle, that the
whole property ia supposed, by law, TO
be in the husband If the wife there.
fore ia under the necessity Of living
apart, it is also necessary, that she
should be subsisted during the pen
fency of the suit; and that she should
be enabled to procure justice, by being
provided with the means of defence.
This arises out of the ordinary condi-
lion OF connubial society, and the state
of the property between the parties, as
usually vested under the more ancient
law of tho kingdom, It may often
happen that the wife has an income
corresponding to her own expense, and
the necessary expenses of the suit. tfor
both must appear in such case there
is no longer the same reason that she
should be a privileged suitor.
"This rule could not be better ex.
pressed, however amplified, and has been
followed both in England and this
country, with great uniformity. The
variance in the cases being not as 10
fb. ptaIa nf hut a., 60,
The facts in each case.
"The test therefore seems to be, that
unless the wife has au independent
income, competent for her support and
the maintenance of her suit, costs
should be awarded in her favor; and
this whether she fails or succeeds in
her suit; provided, however, that ii
she fails, there appears from the proof
in the case reasonable grounds for her
action,
'The proof in this case does not show
that the independent income of the
wife was sufficient for her support, and
the maintenance of her suit. Such
estate appears to be the house in which
she lives, the furniture in 1t, an in
come OF S40O year annually from her
father's estate and a balance of 81, 300
from the sale of the yacht Now Then,
subject to the claim OF her lawyers and
of the respondent. Nor is there
any parity of income; as that of the
respondent is admitted TO be many
thousands
"Again the proof of her position,
istauding alone, not only shows reason
able ground for her action, but il un-
disputed, would have entitled herto
decree OF divorce, If it had not been
met and refuted by the proof produced
en- the part of the respondent. This
case clearly comes within the rule
above stated. We think, therefore,
that the costs should be paid by the
respondent and so order.
"The petitioner claims, however, an
additional allowance for expenses
which she claims were necessarily in
cfrred in conducting her case. Those
expenses are alleged TO consist Of counsel
fees, Sc, $50; expenses Of investigating
testimony, securing attendance OF
witnesses and detective services,
,s3, 512. 32, total Of $40, 2G3. %. This
amount is to be credited with 81, SEQ
allowed by the court for expenses early
in the progress Of this suit and by
81, 260 which are included in tho costs
taxed in the case and will be received
by her when paid, leaving balance
OF S5, 49l. We do not think any further
allowance for expenses should be made.
The extreme limit in any previous case
in this court was reached when We
\lallowed 81, 500 for expenses in tho first
instance. While we are not necessarily
n bound by this precedent, vet it ought
ll d., a. de ma uniesS tho circumstances