By the Court.†—Bosworth, Ch. J.
The opinion of the judge who made the order appealed from, assigns three substantial grounds in support of the order.
[308]*3081. That the defendant has been guilty of laches in not moving for a commission at an earlier day.
2. That a commission, in the form of the one sought, should not be granted, even if the court has the power in extraordinary cases to award it.
3. That the facts sought to be proved by means of the commission, are not proper to be given in evidence on the reference.
The appellant insists, First. That he has not been guilty of any delay, which should deprive him of any right or favor, to which, but for such delay, he would be entitled.
Second. That he was entitled at all events to the ordinary commission without a stay of proceedings.
Third. That he was entitled to a commission to examine witnesses orally.
Fourth. That the facts sought to be proved are relevant and material, in determining the question what alimony, or whether any alimony should be allowed.
The alleged facts sought to be proved are (1) illicit intercourse with several persons, not named; (2) intemperance; (3) extravagance ; (4) a vicious and debased association and mode of living.
The misconduct charged is alleged to have occured in California, subsequent to the judgment of divorce (which was entered on the 31st day of January, 1852), and prior to the order of reference now pending, and which was entered on the 24th day of July, 1856, on the reversal- by the general term, of that part of the judgment or decree relating to the amount of permanent alimony to.be allowed. The plaintiff was in California from May, 1853, to April, 1856.
In this connection it may be observed, that the pending reference is not a proceeding in an action at law. If not a proceeding in an equity suit, properly so called, it is a proceeding in a suit, of which, prior to the Code, a court of equity alone had jurisdiction (under the laws of this State).
This court, having jurisdiction of the action, is thereby vested with all the powers of the old Court of Chancery, in respect to the subject-matter of the suit; and which it might rightfully exercise to possess itself of the information requisite to decide the suit, or make any interlocutory order, or any order or decree [309] in it subsequent to a determination of the main points of controversy, according to justice and equity.
I shall, therefore, assume, that this application should be disposed of, precisely as the late Court of Chancery would dispose of a like motion, made under the same peculiar facts and circumstances.
It will hardly excite surprise if no adjudication can be found directly in point, upon the question of the competency of some of the facts sought to be proved, and the effect which should be given to them if established.
The provisions for permanent alimony, usually form part of the decree for a divorce; or are embodied in a further order or decree made before a new state of facts has arisen.
Intemperance and extravagance may precede the institution by a married woman of a suit for a divorce, and may have continued up to the time the decree was pronounced.
But illicit sexual intercourse on her part, could not ordinarily precede the institution of a suit prosecuted by her to a successful issue. It would be natural to expect, that the effect of such misconduct upon the question of permanent alimony, would, ordinarily, be determined upon applications (made subsequent to the order by which it had been fixed) to modify or discharge it, in consequence of such misconduct, if it be true that a court of equity could interfere with that matter, for such a cause.
Section 43 [45], 2 Rev. Stats., 145, declares, that in a case like the present, “ the court may make a further decree or order against the defendant, compelling him to provide such suitable allowance to the complainant, for her support, as the court shall deem just, having regard to the circumstances of the parties respectively.”
By section 58 [60], “ the court may require such husband to give reasonable security for such * * allowance,” and if he neglect or refuse, the course to be pursued to secure the payment of the allowance to her, is prescribed.
It is urged that under section 43, only the circumstances of the parties respectively, as they exist at the time of pronouncing the decree, are to be considered in determining what will be a suitable and just allowance.
It is not denied, however, that many matters, other than the [310] pecuniary means of the parties, are “ circumstances” which the court must consider.
The fortune of the husband may be such that its income will support both, separately, as they have been accustomed to live, without the necessity of labor on the part of either. In such a case the wife also may have a separate property; the income of which alone will be sufficient to support her as she has been accustomed to live, or she may have no separate income.
In another case, the husband may have no productive property, and yet may be in the receipt from his profession or avocation of a sum sufficient to support both, as they have previously lived, if living together, but insufficient, if living separately.
In one instance, the wife may be a confirmed invalid, and unable to do any thing towards her support; and in another she may be able to support herself, by the same pursuit, or by some pursuit kindred to that in which the defendant has earned his fortune, and which she may be competent, and as a matter of taste and choice be willing to prosecute.
Would a provision, which in the latter case would be just and suitable, be just and suitable in the former? Should an allowance of the same precise amount be made in each of the two cases last supposed ? If not, then the pecuniary faculties of the parties are not alone to be regarded, unless the definition of the term is made so comprehensive as to include a capacity to earn the means of support in whole or in part. If it be made to include that, then in some of the cases supposed, the injured wife might, with her view of the fitness of things, deem it a personal degradation to perform upon the stage, or in a public concert. As a matter of religious conviction, it might be, that she could not be induced to attend the former even as a spectator. Another woman might find her chief happiness in the applause which her performances would elicit.
An allowance made to the one upon the basis, that she might, and therefore should contribute to her support by appearing as an actress or public performer, would involve her in misery; while made on the same basis to the one who had no such scruples, would provide her with all that she would desire.
Is any regard to be paid to the religious convictions of the one, or to the effect which a resort to such pursuits would work [311] in her social relations and position, or to the reputation which such associations might create among those whose good opinion she would most value, viz., the religious and more cultivated and moral portion of the community ?
Without undertaking to say which class is right, or which wrong, or that either is exactly right; we all know that a large class of the community, and a class too, that is regarded as the more moral, because the most consistent, in conforming their conduct to the religious doctrines which they profess and cherish, regard theatres as schools of vice, and feel and act upon the conviction that it is sinful to witness their exhibitions.
Another class regard them with favor; and the entertainments they furnish, as worthy of patronage. In this class are included many who hold high positions in the circles denominated and considered, by the bulk of the community, as the first circles or classes of cultivated society.
Many would regard all expenditures made to secure the pleasures incident upon attending theatrical performances, whether paid as the price of admission, or to dress in a style deemed suitable to the occasion, as inexcusable extravagance ; and constant attendants upon the theatre, as persons to whom “a vicious and debased association and mode of living” might be justly imputed.
This consideration alone, shows how difficult it is to state any rule by which it can be accurately determined, in a manner that will operate justly upon all parties to such actions, what is, and what is not extravagance; and what is a vicious and debased association in such sense, that by reason of a complainant being guilty of it, a diminished amount of alimony should be allowed to her.
Some kinds of conduct, and some kinds of association .may be treated as being, in the common judgment of civilized society, so gross and vicious as to be absolutely degrading.
But there is also an endless variety of conduct, and of association inseparable from, it, in respect to the morality and debasing tendency of which, persons of intelligence, of a fair general morality, and of good purposes, differ.
And the same considerations are equally applicable to various sources of enjoyment and the kind of life and association which they, to some extent, induce, and to the consequent charges of [312] extravagance or debasing association which might, in the judgment of many, be predicated of them.
Is each one, whose duty it may be to sit in judgment in a case like this, to determine what is extravagant, or what association is debasing, by his own habits and personal opinions, and be influenced by them in settling questions like those now presented ; or is there some general principle by which such questions must be determined, without considering the great variety of views and opinions which it would be necessary to do, if all, or any of the facts now sought to be proved, were proper subjects of evidence.
The rank and position which the parties occupy in society, and their general mode of life, should be considered; 'and the allowance made, as a general rule, should at all events be sufficient to enable the wife to continue in the enjoyments to which she has been accustomed, when the husband’s income is adequate to support both as they have been accustomed to live.
Whether that allowance be expended in part indiscreetly or not, does not concern the husband. To a jnst and suitable allowance she is entitled. As a general rule, the particular application of it is a matter entirely for her own determination. Whether she shall so change her habits as to economize and accumulate, or whether she will expend a j)art, and if so, what part, upon objects which she regards as charitable or deserving of encouragement, or in a manner which some may deem useless or extravagant, are subjects in respect to which the husband, the party in fault, has no right to be heard.
It is his duty to provide the'means for her support and maintenance to the amount determined to be suitable and just; her manner of expending it he has no right to dictate.
Whether in some of the extreme cases supposed, on the argument, such as the idiocy or lunacy of the wife, any greater sum should be allowed than would be requisite to defray fully the expenses of maintaining her, it is not important to consider: in such cases she would be destitute of the capacity to appropriate any sum which might be allowed, and it would not be inconsistent with any conclusion yet stated to limit the allowance to a sum which would cover her actual expenses, as it might be deemed suitable to provide for her.
[313] But this case presents no such question, and therefore does not require any minute consideration of it.
The allegations of the petition, on which the commission was moved for, are: “ that during the two years or so that she resided in San Francisco, she gradually fell from the favorable position first accorded to her, and acquired the reputation of being a woman of bad morals, and dissolute and extravagant life, addicted to the excessive use of ardent spirits, and also unchaste; not with reference to one person alone, but to several.”
That the petitioner “has derived information of acts of intemperance, immorality, fornication, and adultery, on the part of said plaintiff, during the period referred to, from statements made by witnesses thereof , in some instances, and from careful inquiry as to facts which were within the knowledge of other witnesses, and could, and would be testified to, if the testimony was required or compelled.”
The plaintiff, in an opposing affidavit, declares and testifies, “that she never has, either in California or in any other place, committed adultery, or fornication, or committed any violation of chastity.”
She “says she cannot deny having spent and given away money to an extent which prudence forbade; and so far she is, perhaps, liable in a degree to the charge of extravagance; but she denies that, either in California or elsewhere, she has led a life of intemperance or vice, as, according to his usual habit of assailing this deponent, the said defendant hath untruly alleged in his petition.”
If it be true, as the defendant’s petition seems to state, that persons, who have been “witnesses” of acts of fornication and adultery on the part of the plaintiff, have so told him; then,assuming these acts to be material, he needs only their testimony, if they are entitled to credit, and if they are not éntitled to credit, proceedings should not be delayed to examine them.
If the phrase “ witnesses thereof” was intended to be applied only to “acts of intemperance and immorality,” or to one of them, then it may be said that the charge is very indefinite, and the acts claimed to be acts of intemperance or immorality, are not defined.
If the immorality meant, be other than “ the excessive use of [314] ardent spirits” or “ fornication,” there is nothing in the petition to indicate very clearly of what it is supposed to consist.
If acts of fornication subsequent to the decree are inadmissible in evidence, upon the question of the alimony to be allowed, then I think it may be assumed that subsequent acts of intemperance are.
The true solution of this question must depend upon the rules and principles on which alimony is awarded, and its amount determined, to be ascertained from the series of decisions made in such cases, and the statutes upon the subject, and not upon any arbitrary and fluctuating notion of what may be seemly and proper, or desirable, in a case of such facts as are alleged to exist in this particular case.
It must be obvious that the decisions in the ecclesiastical courts of England do not fully meet the precise case, for the reason that they leave the marriage relation subsisting, and the husband under a legal obligation to provide the wife with at least the necessaries of life, and she is not wholly freed from obligations to him. He has still an interest in her, and may. justly be deemed to be afflicted by her misconduct.
In those courts, although a separation be decreed for the adultery of the wife, an allowance is provided for her, and the considerations which, in such a case, might justly moderate its amount, can have no just application to the case of a woman absolutely divorced for the misconduct of her husband, or upon the question whether the amount of alimony (having been rightfully determined at the- time the decree of divorce was pronounced) can be reduced for her subsequent misconduct. The decisions in those courts, from the necessity of the case, have not been made upon any such state of facts, and consequently have not established any rule which precisely meets them.
By the rules of the common law, upon the marriage, the husband is vested with all the present available means of the wife, together with a right to her future earnings and acquisitions. At the same time the law casts upon.him the duty suitably to maintain his wife, according to his ability and condition.
When a marriage has been duly solemnized, each of the married parties acquires thereby certain legal rights, as against the other, not to be forfeited, unless for some breach of matrimonial duty. “ When an erring' one has broken the matrimonial en[315] gagement, the law gives to the innocent party such redress as the nature of- the case and the constitution of the tribunal allows.” If a “ husband has committed adultery, the court can neither watch him during his after-life, to prevent his repeating the offence, nor wipe out from his nature the stain which the sin has imparted, nor take off the weight of sorrow from the mind of the wife; but if she chooses not to overlook the transgression, it can compel him to” provide “ for her what the marriage gave her a right to demand, a pecuniary support.” (Bishop on Mar. and Div., ed. 1859, § 560, 560 c.)
What she may do after she has been divorced, and the marriage relation has been dissolved by reason of his adultery, can affect no matrimonial engagement, for none exists, nor violate any matrimonial duty, for she no longer owes any to her former husband.
What he should be made to pay, as the means of her future support, according to all general rules of judgment, must depend upon the facts which create the right to it; and they must be the facts existing and as they exist when the right becomes, fixed and perfect. The time of pronouncing the decree is the one at which the right is judicially ascertained and declared.
From that moment the marriage relation, and all duties consequent upon it, are ended, except the duty of the husband to make such a provision for the support of the wife as the marriage made it his duty to furnish and gave her the right to demand, having regard to the circumstances of the parties respectively.
Our own statutes on this subject seem to have been framed with this view, as being the true one in relation to her rights.
By the statutes of this State, if a wife obtain a divorce by reason of the adultery of her husband, and if at the time the decree is pronounced, she “ be the owner of any real estate, or have in her possession any goods, or things in action, which were left with her by her husband, acquired by her own industry, given to her by devise or otherwise, or to which she may be entitled by the decease of any relative intestate, all such real estate, goods, or things in action, shall be her sole absolute property.” (2 Rev. Stats., §§ 146, 44 [46]; Ib., 190, § 6.)
So too, if the wife be the guilty party, and a divorce be granted for that cause, she not only forfeits all right to dower in [316] her husband’s real estate, or any part thereof, and to any distributive share in his personal estate (Ib., 46 [48]) ; but the husband’s right “ to any real estate owned by the defendant, at the time of pronouncing the decree, in her own right, and to the rents and profits thereof, shall not be taken away or impaired by such dissolution of the marriage; and he shall also be entitled to such personal estate, and things in action, as may belong to the defendant, or be in her possession at the time such decree shall be pronounced, in like manner as though the marriage had continued.” (Ib., § 45 [47]; 2 Rev. L., §§ 7, 8.)
Sections 44 and 45, according to their terms, operate upon the property and rights of which they treat, and which they settle, as of the time of pronouncing the decree of divorce. . But they deprive the guilty of all rights of property acquired by the marriage ; and if the wife be the guilty party they do not restore, but, on the contrary, prohibit the court from restoring to her for her support and maintenance any property which she owned at the time of the marriage, or acquired during coverture. Neither section 43, nor any other section of our statutes, in terms, authorizes the court to award any allowance for her support and maintenance, when a divorce has been granted by reason of her adultery.
If, therefore, the New York Court of Chancery had no power to award permanent alimony, except in the cases specified in the statute, it may be that it could grant none in such a case as Darley a. Darley (Wright's Ohio Rep., 514), nor to any woman whom it might divorce by reason of her adultery. But on this point it is not necessary to express any definite opinion.
For whether or not the courts must look to the statutes alone for their power to grant permanent alimony, and find in them the source and limits of their authority, the argument is quite strong that the rights of the parties are to be settled and fixed, upon the facts as they exist at the time the decree of divorce is pronounced.
The rights declared by sections 44 and 45 cannot, I think, be modified or affected by the subsequent licentiousness (however gross) of the party to whom they are thus confirmed.
And although a woman who, in a suit brought against her by her husband for a divorce, if convicted of adultery, forfeits her right to dower, or to any distributive share in his personal [317] estate (2 Rev. Stats., 146, § 48; 1 Ib., 741, § 8), and “ every jointure, devise, and pecuniary provision in lieu of dower (1 Rev. Stats., 742, § 15) ; yet although she may,, undiscovered by him, have committed adultery in his lifetime, she probably, in the event of his dying intestate, would forfeit neither.
Yet in morals her offence is as grave, and should be attended with as serious consequences to her, though first discovered after his death, as if discovered and she had been convicted of it in his lifetime, in a suit brought by him to obtain a divorce for that cause.
If section 43 can properly be construed as requiring a regard to be had only to the circumstances of the parties respectively, at the time the decree is pronounced, in fixing the amount of an allowance, which will be suitable and just; and if partly for that reason the authority confined by section 58 [§ 60] was granted, then these two sections are not only harmonious (although the allowance may be modified in the event of a subsequent change in the pecuniary condition of the parties), and the latter section will enable any order or decree made under the former to be enforced, but, in connection with the other sections cited, they furnish some warrant for holding that it was intended to be final, in such sense as not to be liable to be withheld by reason of the subsequent immoral conduct of the party whose support it was designed and made to secure.
So case has been cited in which it was moved to have an allowance fixed at the time of the decree reduced for subsequent misconduct, or in which such a matter was treated as relevant or material for such a purpose, on an application to modify the allowance fixed by the decree.
Applications to change the rate of allowance, when once fixed, are not numerous, and Mr. Bishop,'in his elaborate and instructive treatise on Marriage and Divorce, quotes the remark of Dr. Lushington, to the effect that he' remembers but two instances were applications to increase or diminish it have been successful (Bishop on Mar. and Div., § 593, 3d ed.), without intimating that his own researches had resulted in finding others.
Considering the length of time that this branch of the law furnishes evidence, through the reports and otherwise, of the mode in which it had been administered in this and other States of the Union; the fact that such subsequent misconduct does [318] not appear to have been presented as an element to affect the amount of the allowance, may be regarded as a strong and almost conclusive presumption against its admissibility.
I regard § 43 [45], 2 Rem. Stats., 145, not as permissive merely, but as imperative; and that it is the right of the wife to demand, and the duty of the court to decree a suitable allowance. (1 Laws of N. Y., K. & R., 93, § 2; 1 Greenleaf, do., 428, § 2; and 2 Rev. L., 199, § 5.)
Mr. Bishop, in the work already cited, reaches the conclusion, fully justified, as I think, by the authorities to which he refers, and the practice of the court, that “ the doctrine extends through the entire field of our law, as administered alike in the common law, equity, and ecclesiastical tribunals; that, in effect, whenever the wife is adjudged entitled to live separate from her husband, by reason of his breaches of matrimonial duty, a concurring adjudication must be pronounced, that he support her while so living (Ib., § 561), during their joint lives.” (Ib., § 592.) .
“ The law seems to recognize the right of the wife to use one-third or more of the common estate, in its rules concerning dower, and the distribution of the effects of a deceased husband. And in reason, the wife living separate from her husband, should be permitted to spend one-third as much for her living as he for his.” (Ib., § 619 ; see also §§ 617-623, d.)
“ When a breach of matrimonial duty has been committed, sufficient in extent and kind to authorize the injured party to separate from the offender—evidently on reasons already given” (Ib., §§ 560 b., 560 c.)—“ the offender should pay to the other as much as will place the other in a pecuniary condition equal to what would be enjoyed if the breach had not taken place. * * * Row we have, first, the damages suffered; secondly, a proceeding established by law, wherein the judge has a discretion to award money, and no specific rule, either of statute or common law, established to limit the discretion below a consideration of the damages.” (Ib., § 619, a.)
He forcibly concludes, that “ there are some plain propositions of common-sense governing this matter of alimony, on a divorce from the bond of matrimony, as follows : First, The innocent party should not be left to suffer pecuniarily for having been compelled by the conduct of the other to seek the divorce. Secondly, The wife made thus .in a certain sense a widow, [319] should not usually be set back simply where she stood, in point of property, when she entered the marriage. * * * Thirdly, She should not stand worse than if death instead of divorce had dissolved the connection.”
In Richardson a. Wilson (8 Yergh. R., 67), the court intended that the right of the wife to a support from her husband, was a constitutional right, which the legislature could not take away by a divorce bill, passed ex parte, and without notice to her, even supposing it to be effectual, as against her, to dissolve the marriage itself. In Lawrence a. Lawrence, Chancellor Walworth remarks, that “ if she succeeds in establishing such improper conduct on the part of the husband to entitle her to a divorce or separation, she is entitled to a portion of the property as a right, founded upon his violation of the marriage contract.”
The legislation of such of the States (also cited and commented on by Bishop) as provides, in case of a divorce, for a division of the property, seems to be founded upon the rule, as one that is elementary and fundamental, that a woman who obtains a divorce for the adultery of her husband, has a right to a portion of his property, or to the use of it for her support and maintenance ; and that what is suitable and just, so far as that question may be affected by the conduct of the wife, must be determined by her conduct prior to the decree, and that with such determination, all power to inquire into it, as affecting the question of such alimony, is at an end. (Bishop, §§ 623 c., 630.)
In some States the courts, by statute, have a discretion, when they deem it wise, to make her an allowance, although the divorce is granted because she is the guilty party. There are several reported cases in which an allowance has been made to her under such circumstances. (Bishop’s Div., 561, and the cases cited in notes 1, 2, 3.)
My conclusion is, that when a woman is divorced from her husband by reason of his adultery, her right to such suitable allowance as may be just, having regard to the circumstances of the parties, respectively, as they exist at the time the decree is pronounced, is perfect and absolute.
That it is no part of the province of the court that fixes the amount, to watch over her subsequent conduct in life, or to take proof of it, as a ground of affecting the right to an allowance, or its amount.
[320] That her subsequent misconduct no more impairs her right to it, than such subsequent misconduct would impair her right to dower, or to a distributive share of her husband’s personal estate, if he had died intestate, and no divorce had been pronounced.
That whatever may be the power of the court, under particular statutes, or in the absence of any statute affecting the question, to enlarge or diminish the amount, subsequently, by reason of an improvement or loss of the faculties (the property) of either or of both of them, the allowance is to be fixed in view of all the circumstances proper to be considered, as they exist at the time the decree is pronounced.
How she spends it, no more concerns the former husband or the court, than the manner in which any other woman may spend the like sum. Whatever feeling he may be supposed to have in the matter in judgment of law, he stands in the same position to her as to any other unmarried woman in society.
Her subsequent good or ill conduct, can be made to affect her only as the same conduct would affect other individuals. There is no law by which her misconduct, whatever it may be, can be punished by a forfeiture of part of an allowance, just in itself, when fixed and adjudged to her by reason of her husband’s violation of his legal duties to her, nor by which her subsequent meritorious conduct can be rewarded by an increased allowance at his expense.
I think, therefore, that the order appealed from was properly granted, on the ground that the facts sought to be proved are inadmissible in evidence on the pending reference.
Whether the pending motion should have been denied for the other reasons assigned by the judge who made the order appealed from, it does not become very important to consider further, if the conclusion last expressed be correct.
The opinion delivered in support of the order in question, proves quite conclusively that the defendant is not entitled, as a matter of strict right, to the commission, which by statute may be issued “ to take testimony in any cause depending in the Court of Chancery” (2 Rev. Stats., 180, § 84 [78]), or “ in a court of law, being a court of record,” in an action in which “ an issue of fact shall have been joined” (Ib., 393, § 19 [§ 11]); or in which “ an interlocutory judgment shall have been obtained” [321] (Ib., 396, § 32 [§ 24]); even though some of the matters offered to be proved were relevant and material.
The allegations of extravagance as immaterial, and of intemperance as too vague and indefinite, are no justification to the court for subjecting the plaintiff to any delay in the proceedings upon the reference.
The previous history of the action entitles the plaintiff to some consideration in respect to her alleged fornication and vicious mode of living while in California, even though proof of them might be material. The pleadings, verdict, bill of exceptions, and the judgments of the special and general terms of this court (upon which in part the order appealed from was made), show that she was charged by the defendant’s answer in this cause with acts of adultery with various persons who were named, as well as with persons to the defendant unknown; and that after a trial, almost without a parallel as to its length, a jury determined that each and all of those charges were untrue.
The alleged acts of fornication now sought to be proved, were committed, if at all, in California, between -May, 1853, and April, 1856. More than three years had elapsed after the plaintiff left California, before the motion was made which resulted in the order appealed from.
The plaintiff denies, in the most unqualified manner, that she has been guilty of any misconduct of the character in question.
The defendant does not, in his petition, name any person with whom (as he has been informed) the plaintiff has committed fornication, nor any person as one who will testify to any specified facts which, if uncontradicted, would tend to show that she had beón guilty of such misconduct.
He states, it is true, “ that he has derived information of acts of intemperance, immorality, fornication, and adultery on the part of said plaintiff during the period referred to, from statements made by witnesses thereof in some instances, and from careful inquiry as to facts which were within the knowledge of other witnesses, and could and would be testified to, if the testimony was required or compelled.”
He also states, in respect to the seventy-five witnesses named in his petition, that they “ are, and each of them is, as your petitioner is advised by his counsel hereinafter named, and believes, a material and necessary witness for the defendant in the further [322] defence of this action, and on the hearing before the said referee; that your petitioner has stated to John Van Buren, Esq., his counsel herein, who resides in the city of New York, the facts which he expects to prove Toy each of said witnesses, and that he is advised by'his said counsel, and believes, that each and every of said witnesses is material as aforesaid“ that among the witnesses hereinafter named” (in the petition), “ are several whom your petitioner is informed, and believes, have had criminal intercourse with the said plaintiff.”
But the petition does not designate any of them as the persons with whom such misconduct has been committed, nor detail any of the facts which were stated to defendant’s counsel, as the facts which he expected to prove by either of the witnesses.
Allegations of conduct of such character as is here imputed to the plaintiff, if the defendant possesses any information in respect to it entitled to any consideration, can be made more specific, and be established by witnesses who can be named in a commission.
If they cannot be, the court ought not, after the experience furnished by the trial of this cause, to issue a roving commission to examine as witnesses whomsoever the defendant may desire, and whose character the plaintiff may not be able to prove, although not worthy of the slightest credit in court or out of it, in order to prove such misconduct with persons who are not named, and at times not intimated.
As nothing but a case of urgent necessity should induce the court to grant a commission under the circumstances of a case like this, and in a condition such as this is, some stronger grounds for believing that the facts alleged are true should be shown than have been established in support of the defendant’s petition.
It is for the reason that no such case of urgent necessity has been presented, and because allegations much more precise and specific, based on transactions alleged to have occurred in the city where both parties at the time resided, have been fully tried and found to be destitute of truth, and because of the long delay in moving for the commission, that the order appealed from should, among other reasons, be affirmed.
To justify the issuing of a commission in such a case as the present, at the time and under such circumstances as the one in question was applied for, and the subjecting of the plaintiff to any delay or expense in its execution, a case should be presented [323] free from all suspicion that any part of the motive in asking it is to delay or annoy the plaintiff, and furnishing strong moral evidence that the facts alleged can be proved, and that great injustice would be done to the defendant if the court withheld the aid necessary to procure the proper evidence.
The petition and other papers on which the order appealed from was made, do not, in my opinion, present such a case, and for that reason, also, the order should be affirmed.
All the other Justices concurred, except Pierrepont, J., who dissented from that part of the opinion which holds, that in fixing the amount of alimony, the immoralities and bad conduct of the wife, after the decree of divorce is pronounced and before the amount of permanent alimony is finally fixed, cannot be considered by the court. ..
Order affirmed.