Perry v. Perry

6 Sarat. Ch. Sent. 68

Opinion

Application by defendant for an allowance to be paid to her by the complainant, to enable her to examine and cross examine witnesses before the master, upon a reference to take proof of the facts and circumstances stated in a bill for a separation ; after the same had been ta^en as confessed- The Chancellor decided that after such a bill has been suffered to be taken as confessed, the charges in the biU, for all the purposes of the suit, so far as relates to alimony, or to an allowance for the expenses of the defence, are to be taken as true. That the reference to the master, in such a case, is only to satisfy the conscience of the court that there is no collusion between the parties; and not to protect the rights of the defendant. That even if the complainant should fail to establish the facts charged in the bill, by legal evidence, the defendant will not be entitled to a decree for costs, upon a dismissal of the bill, under such circumstances.

• Upon a reference of this nature, the rights of the defendant are the same whether the charges in the bill are admitted in the answer, or are admitted by neglecting to answer. And if the defendant thinks proper, she may attend and cross examine the witnesses of the complainant, or produce evidence on her part. But it must be at her own expense, and not at the expense of her husband. And the master is not bound to take testimony for her, without compensation.

Motion denied with costs to be taxed ; and complainant to be allowed to retain such costs out of the allowance heretofore directed to he paid by him to the defendant for alimony pending the suit.