
    *Ann Purcell v. Charles Purcell.
    February Term, 1810.
    1. Chancery Courts —Jurisdiction—Alimony.—The Court of Chancery has jurisdiction in oases of alimony.
    2. Alimony — Marriage—Evidence of. — What evidence of marriage is deemed sufficient to entitle the wife to alimony.
    3. Same — Performance of Decree — Alimony.  — How the performance of decrees for alimonyis to be enforced, where the defendant stands out process of contempt.
    The bill in this case was filed to obtain alimony: it stated the marriage of the parties many years ago in New Jersey, in the United States; and that, without any impropriety of behaviour on her part, he had separated himself from her, without affording to her any support; that with all her endeavours she had often been without the necessaries of life; and his knowledge of the fact, instead of exciting even compassion, had caused only contempt and insult ; that she had been frequently compelled to depend upon charity for subsistence, while he enjoyed a very considerable estate real and personal: wherefore she prayed for an adeauate support, and for general relief.
    In support of the allegations of the bill, there was the following proof:
    1. William Richardson swore that in 1786 he was living in Philadelphia, a near neighbour to some of Mrs. Purcell’s con-nexions, and occasionally visited them; that two of them, Mrs. Duncan and Mr. Henry, were both persons of wealth, and high respectability; that he often heard them express their sorrow at the marriage of their niece and cousin Ann, to Charles Purcell, from apprehensions that he would not make a good husband; that in 1787 or 1788, the deponent was in Richmond, and, among others, became a boarder at the house of Charles Purcell, and that he did believe the said Ann to be the lawful spouse of the said Charles Purcell.
    2. Minton Collins swore, that he had been acquainted in the family of Charles Purcell about twenty years; that during the whole of his acquaintance, Mrs. Purcell was treated by the said Charles Purcell very affectionately, and that he did always believe she was his lawful wife, as she was introduced as such to the acquaintance of many genteel families in this city.
    *3. Col. Robert Gamble swore, that in the year 1790, before he had removed to Richmond, but while he and Mrs. Gamble were on a visit to that place, Mrs. Purcell was introduced to Mrs. Gamble, by Mrs. Sampson Matthews, and several other ladies; that the deponent soon afterwards removed to Richmond, and from the spring of 1791 until the summer of 1798, he and his family were neighbours to Charles Purcell, during which time their families reciprocally interchanged the accustomed civilities; that the plaintiff and defendant lived apparently as man and wife; that he had seen Mrs. Purcell at the city assemblies or balls, and that reputable families were in the habit of visiting Mr. and Mrs. Purcell at their own house; that the deponent was called upon by the said Charles, to unite with Col. Rambert, to take his wife’s privy examination, which they did; and that the said Charles always called the plaintiff Mrs. Purcell.
    4. Col. D. Rambert swore, that at the request of Mr. Charles Purcell, he, with Col. Gamble, waited on the said Ann, at the house of the said Charles, on the eleventh of February, 1792, and took her relinquishment of dower in some real estate conveyed by them; and that he always understood and believed that the said Ann was the wife of the said Charles Purcell, until, lately, it has been otherwise hinted by the said Charles Purcell.
    5. There was the certificate of the clerk of the Husting’s Court of the city of Richmond, which stated, that the privy examination and relinquishment of dower, by the plaintiff, as stated by Col. Gamble and Col. Rambert, had been returned and duly recorded.
    6. Besides, there were seventeen letters filed; three dated in 1794, 1798, and 1804, from their friends and connexions in Ireland, one directed to Mr. Charles Purcell, jeweller, Richmond, and the other two to-Mrs. Ann Purcell, to the care of Mr. Charles Purcell, making the most friendly inquiries after them and their children; two-others of a *most affectionate character, dated June and July, 1790, addressed by him to her, by the name of Mrs. Ann Purcell, while she was on a visit toiler friends in Philadelphia; ten others of a like character, dated in 1799, 1800, 1801, 1802, and 1803, addressed by him to her by the same name, while she was in Hew Kent, at Mr. Andrews’ in Norfolk, and in Baltimore; one other addressed to Mr. Charles Purcell, by Mr. Pauley, at whose house she had been accommodated, at the instance of the said Purcell, enclosing his bill, dated July, 1802; and one other from Charles Purcell, dated Richmond, July, 1804, in which he, for the first time, denounced() her; but advised her to go to her brother’s, and as he might find it convenient, he would give her some assistance.
    Upon the bill, and the evidence aforesaid, the plaintiff, by counsel, at February term, 1808, moved for alimony pendente lite; when the defendant, by counsel, asked leave to take the papers in order to file his answer, which was granted.
    The answer was filed the next day; it positively denied the marriage; and stated, that in April, 1786, he had joined a boating party with the plaintiff and several others, and had taken a trip to the Jerseys; and that soon afterwards she voluntarily embarked with him for Richmond, where he acknowledged they had passed as man and wife; that the relinquishment of dower was taken more to satisfy those interested in the purchase-money, than for any other purpose; that he then denied the marriage; that in August, 1797, a young lady from Ireland was introduced to him, by the name of Ann Church, by Robert Means, as the niece of the plaintiff, whose expenses the defendant paid; but,' in a short time, Ann Church proved to be an illegitimate daughter of the plaintiff; that, notwithstanding this, he educated her, and upon her marriage, gave her a house and lot in the city of Richmond; but then declared, that it was done for the respect which he once had for the said plaintiff; that in 1798, when his houses were consumed by fire, he was *obliged to rent a house, to which he removed; but the plaintiff thought proper to accept of the invitation of her friends, and not to go with him; that shortly after, she, of her own accord, without his knowledge, extended her visits to the borough of Norfolk, Rynchburg, Wil-liamsburg, Baltimore, and other places, which he admitted she had a right to do; that in 1800, and 1804, she was in Richmond, and continued there for some time, without returning to him, or asserting any demand against him; but still he did afford her some aid; but declared it was from charity, and not from any obligation that he was under; that if she had been his wife, which he denied, yet her departure from him, and her manner of living after-wards, would be a bar to any claim of dower, if he were to die, and should be of course to alimony; and that if they were married, she could say where the marriage ceremony was performed, the clergyman, and the persons or some of them who were present; and in support of this answer, he filed the following proof:
    1. The affidavit of James Miller, in which he stated that he had understood, from the plaintiff, that she and the defendant were married in Philadelphia.
    2. The affidavit of John Sedwich, in which he stated, that about December, 1807, he understood from her that she was married in Philadelphia to Charles Purcell, but that she did not then wish to live with him as his wife; but merely to recover ot him as much money as she could; and at another time she said they were married in the Swedish Church in Philadelphia, and that he, the deponent, replied, then you can get a certificate of your marriage; but she said, that they kept no record of marriages, and that after they were married, he left her at her aunt’s door, and that he had no other knowledge of her until they embarked for Richmond.
    3. The affidavit of Robert Cowan, in which he stated, that in 1803 and 1804, a person by the name of Mrs. Purcell was at Norfolk, and lived with Jeremiah Andrews, while his wife was in England; and that people spoke *ffreely of Mrs. Purcell on that account; and that as soon as Mrs. Andrews returned, Mrs. Purcell was discharged.
    4. The cross-examination of Col. Gamble, which had no bearing on the question.
    And thereupon the plaintiff renewed her motion for alimony pendente lite. To which the counsel for the defendant objected :
    1. Upon the ground of jurisdiction : and,
    2. Por the want of sufficient proof of the marriage.
    By the Chancellor. If the jurisdiction of this court were now to be settled upon English precedents, there might be some doubt about the question, from the cases, as brought into one view, by Mr. Ponblanque; but I shall leave this clashing of English Judges to be reconciled among themselves, and take up the question upon first principles.
    I hold, that in every well regulated government there must somewhere exist a power of affording a remedy where the law affords none; and this peculiarly belongs to a Court of Equity; and as husband and wife are considered as one person in law, it is evident, that in this case the law can afford no remedy; which is universally admitted to be a sufficient ground to give this Court jurisdiction; and therefore it must entertain the bill, if there be sufficient proof of the marriage.
    The standing rule in equity is, that an answer is not evidence in favour of the defendant, unless it be responsive to the bill; and therefore, whatever the answer asserts affirmatively, in opposition to the plaintiff’s demand, must be proved by indifferent testimony. Apply this rule then to the case before me, and the result will be, that the plaintiff must prove her marriage with the defendant, since he has denied it by his answer, and he must prove the other matters set out in his answer, as not being responsive to the bill; that is to say, he must prove, 1st. The circumstances which he states with respect to the relinquishment of her dower; 2d. That he then denied the marriage; 3d. That Ann *Church was the natural daughter of the plaintiff; (if he, or his counsel, supposes that to make out these points would be of service;) 4th. That she refused to live with him in 1798, in the rented house; and, 5th. That her manner of living, while she was from him, was unlike an upright woman; or, if it is intended to charge her with living in adultery, it must be proved by him.
    Thus, having stated what devolves on each party to prove, I will next examine the proof of the marriage, since it seems to be admitted on all hands, that if they were married, he must allow to her alimony: and I confess upon this point, I do not perceive any ground on which to rest a doubt: evidence of a like description, coming from him under like circumstances, of the most atrocious crime that he could commit, would be sufficient to take his life; and yet, we are told, it is not sufficient to fix one of the most honourable acts in society upon him; namely, that he was married ! lest it should draw from him an annual support for his wife! and it was contended with great zeal and confidence, that there must be proof of an actual marriage, and that the defendant’s confession of the fact, though attended with all 'the present circumstances, was not sufficient; and in support of this, one solitary case was produced, of Miller v. Morris, (4 Burr. 2057,) which was an action for criminal conversation with the plaintiff’s wife, which certainly bears no analogy to this case, and, if it proves any thing, proves that evidence like that, which is now before the Court, may be admitted in all cases, but in prosecutions for bigamy and crim. con. for this plain reason, that a crime shall not be fixed upon one, but by the highest evidence; but the virtuous act of matrimony may in this case, as in many others, be proved by cohabitation, name, reputation, and other circumstances. The marriage then being fixed beyond any doubt, in my mind, it remains only to be inquired into, whether at this stage of the cause the defendant has fixed so much blame on his wife, as that she should not have alimony pendente lite. The rule as before laid down with *respect to the answer being evidence, must not be overlooked; and the defendant must prove his affirmative matter contained therein. But not one title of his proof supports the circumstances under which he states the dower to have been relinquished, or that he then denied the marriage, or that Ann Church was the natural daughter of his wife, or that she refused to- live with him in 1798, or that she conducted herself improperly abroad: and the whole of the correspondence before stated proves that these thing's, so far as they were noticed in it, were not true; and this brings me to his evidence.
    1. James Miller’s affidavit states, that she said they were married in Philadelphia; but what does this prove? It may be a misapprehension on his part; and I am inclined to think it was. ■
    2. As to the proof by John Sedwich, it is clear upon the face of his affidavits, that he was holding an unauthorized conversation with her, if indeed he held one at all, and that she was not bound to satisfy him about it; but if she did, is it not very likely, from the contiguity of Philadelphia, the Delaware, and the Jerseys, that names were mistaken or misapplied? and if so, then the evidence produced against her, as coming from herself, should not be garbled ; and taken altogether, would fix the marriage. And,
    3. If any one should be disposed to indulge his suspicions, because of the evidence of Robert Cowan I would recommend it to such person to read the letters of the defendant, addressed to the plaintiff while she was in Norfolk, at the house of Mr. Andrews. Upon the whole, I do not discern any cause of complaint against the conduct of Mrs. Purcell, and she must be allowed alimony pendente lite.
    Whereupon the Court then made an order to this effect, that the defendant should pay to the next friend of the plaintiff for her maintenance, quarterly, the sum of seventy-five dollars, pending this suit, to commence from the first of January, 1808, until the further order of the Court; ^unless the defendant should shew cause to the contrary, before the Judge in vacation, on the twentieth of March next.
    The defendant then filed a cross bill against the plaintiff by the name of Ann Hazleton, and alleged therein that he never was married to her, and called on her to say, on oath, if they ever were married? and if they were, where did it take place? what was her name? who performed the ceremony? who were present when the ceremony was performed? where did they first become acquainted? were chey married in a church, or in a private house? .if the former, what church? if the latter, whose house? who were present, and where did they reside?
    To this bill the plaintiff answered, that they were married, and that she is the wife of the said Charles Purcell; that their first acquaintance was at the house of a Mr. Reynolds, in Philadelphia, a seal-cutter and engraver, in the fall of 1785; that at the time of their intermarriage she bore the name of Ann Hazleton; that on the 10th April, 1786, they and Mr. and Mrs. Emery, and a Miss Heizlar, took a boat at Walnut-street wharf, and went over to the New Jersey shore, where they were met by a man, whom the said Charles asserted, and she believed, was a clergyman of the Swedish congregation in Philadelphia, and then and there the ceremony was performed, in the presence of those persons: but where they reside now she cannot say; and then they returned to Philadelphia; and in a few days afterwards, on their way to the vessel which was to take them to Richmond, they met with Mr. John Collins, to whom she was introduced by the said Charles as his wife; and the said Collins then introduced her to the father of Mrs. Collins who is now Mrs. H. Dabney, of Richmond; that on their arrival in Richmond, they were very kindly received, and Mr. Waddell gave up his own room to them: and she referred to several respectable people, to prove the unvaried acknowledgments of the said Charles that she was his wife.
    *And now by consent of parties these causes came on to be heard together, and were submitted without further argument.
    
      
       Chancery Courts — Jurisdiction—Alimony.—For the proposition that a court of equity will decree alimony independent of a suit for divorce, the principal case is cited in foot-note to Latham v. Latham, 30 Gratt. 307: foot-note to Carr v. Carr, 22 Gratt. 168; Stewart v. Stewart. 27 W. Va. 172.
    
    
      
       Alimony — Marriage—Proof.—For the proposition that admissions and reputation are sufficient proof of marriage in civil suits, the principal case is cited in foot-note to Bird v. Com., 21 Gratt. 800.
      See generally, monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
       Decree of Court — Enforcement,—On the question of the procedure in the enforcement of a decree of the court, the principal case is cited in State v. Irwin, 30 W. Va. 417, 4 S. E. Rep. 420.
    
    
      
      (1) It was said at the bar, and not denied, that, about this time he had formed a connexion with, another woman. — Note in Original Edition.
    
   Bjr the Chancellor.

The onlj' difference that I find between the record now, and when it was formerly' before me, is in a cross bill and answer: surely if there was any room before to doubt about the marriage of these parties, the answer to the cross bill must now be considered as freeing the case of all such doubt; for the answer, being responsive to the bill, is good evidence in her favour: and monstrous indeed would be the estate of that society which would admit a man, as, for example, Charles Purcell, to bring a woman from another country, and to introduce her here among his friends as his wife; live with her for many 3rears as his wife; treat her as his wife; convey real estate, and have her relinquishment of dower taken as his wife; address to her letters, as his wife, and not compel him to maintain her as his wife, unless she was in fault; because he says he was not married to her. But this declaration cannot be believed: they both agree as to the trip to the Jerseys, and as to the time when it was made, but she gives the account of the marriage, in answer to one of his interrogatories, and therefore he must stand concluded upon that point: it may be that he practised a fraud upon her, and that the Swedish man was not a clergyman; yet it was done by the means of Charles Purcell, and not by Ann Hazle-ton; and I will, under all the circumstances of this case, hold him to it. The rule of law is, that in a controversy touching the validity of a marriage, as whether a marriage or not, no alimony is due until some matrimonial proof appear, or that it doth some way constare de matrimonio; but wherever a marriage doth appear, unless the wife be in fault, there alimony shall be due. God. Rep. Can. 510, and in a book entitled “Praxis in foro Ecclesiastico," tit. 35, p. 40, as translated by Mr. Warden, the rule in England was, when a suit was brought in the Ecclesiastical Court by a wife against her husband, *the Judge first ascertained the marriage, which he did either by the answer of the proctor, or of the principal party, or by testimony ; all of which has been done in this case.

The correspondence shews that the plaintiff left the defendant at his instance, and for his accommodation, after the fire in 1798; that in 1799 he boarded her at Mr. Pauley’s, in New Kent; that in 1802, when she left Mr. Pauley’s, she went to Mr. Andrews’, in Norfolk; that he the defendant after-wards wrote to her, stating that she must not return, and advised her, that if Mr. Andrews could not board her, to get him to provide her with board in a private house by the year, payable quarterly, and promised to send her some money in a short time: in 1803 he wrote to her again, and among other things stated, that he had sent Mr. Andrews three kegs of butter, and begged of her to be useful in his family, gave an account of his prospects, and assured her she should not want while he could command a shilling; in fact, it seexns that she was kept off by his means, that he might recover from his embarrassments, and that when she conceived he had done so, and insisted upon her right to return, then for the first time he denounced her as the most unworthy of her sex. Upon this view of the case, and upon the ground of public convenience, as well as of that respect which is due to the matrimonial state, Charles Purcell should be considered as the husband of the plaintiff, and bound to afford to her a reasonable maintenance. The allowance pendente lite was made without any particular information with respect to the value of his property; and therefore the Court gave him a day to shew cause against it; if cause had been shewn, and the allowance had been too much, an injunction could have been granted to the excess; but as no cause was shewn, the allowance was deemed reasonable; and at an after day, when the parties were willing to bring on the cause, the Court thought it best, under all the circumstances of the case, to refer it to a Commissioner, to ascertain the value *of his property, that only a reasonable annual allowance might be made, that should be suitable to their station in life, for which purpose he was ordered to attend Commissioner L,add; but although this was for his benefit, it was answered in his name, by a letter to the Commissioner, that the order was an unconstitutional attack on the liberty of a free citizen of Virginia, in terms and language very different from his letters addressed to Mrs. Purcell, which induces a belief that he was advised to this course, and was not in fact the author of the letter addressed to the Commissioner; and if that was the fact, and his adviser were known to the Court, if he should not have cause to regret it, the Court would not. The Commissioner however proceeded, and made a report upon the best information he could get, and reports the value of Purcell’s property to be 29,800 dollars; but as it does not seem to be a very productive estate, and 75 dollars quarterly was thought sufficient, the Court will take that sum for its guide now, and fix the annual allowance at 300 dollars, with liberty, however, to each party to apply to the Court to increase it, or to diminish it, as circumstances may in future make it proper. This is as much as I think the Court can do. But the plaintiff’s counsel supposed that the Court would set apart a third of the defendant’s estate; but I suppose not: for the husband, though bound by every legal and moral principle to afford to his wife a support, yet if, in violation of these obligations, he becomes base enough to cast her off without any just cause, all, I apprehend, that can be imposed upon him is a suitable maintenance, which may be varied according to circumstances, and which should not continue longer than he is willing to restore her to the comforts of bed and board, and to give satisfactory assurances for her enjoyment thereof, which, if she should refuse, the allowance made for her support would, at his instance, be taken away; and if she were to survive him, she would be entitled to dower, and her alimony would of course foease.- This is the opinion of the Court, conformably to which Mr. Randolph may draw a decree.

The decree was to this effect:

That the defendant in the first suit should annually, on the first day of October, pay to the plaintiff 300 dollars for her maintenance, until he shall restore her to the comforts of her bed and board, and give satisfactory assurances for her enjoyment thereof; that on the 1st October next the quarterly allowances are to cease; and liberty was reserved to each party, at any time, to apply to the Court to have an increase or diminution of the said annual allowance, as circumstances may in future make it proper; and the cross bill was dismissed ; and it was ordered, that the costs of both suits be paid by the said Charles Purcell; who by counsel prayed an appeal, which the Court said he might have in the last suit, if he asked upon the usual terms ; but in the first suit the appeal was refused for these reasons:

1. Because he had not made any of the quarterly payments, and was under a commission of rebellion.

2. Because the decree was not final, and the appeal was at the discretion of the Court; but the Chancellor said, that if Charles Purcell would come in and free his contempt, by paying up the arrears, and give security for the support of his wife pending the appeal, it should be granted; but his counsel said that he would not do it; and the Chancellor said, the appeal should not be allowed; and he added, that he had the highest authority in support of the principles which he had laid down, to wit, the universal sense of the country, as declared every day, with great propriety, in such cases in the County Courts, and in no instance had an appeal from their decisions ever been taken, which proved that where they acted, they had done right, and with which the people were perfectly satisfied.

*After the decision of the above case by the Chancellor, the defendant’s counsel made application to the Judges of the Court of Appeals, for leave to carry up the case to that Court, by appeal, which they unanimously refused, and expressed themselves perfectly satisfied with the decree upon the merits; so that the doctrine of alimony may now be considered as settled.

The principle having been settled, that the decree for alimony was rightly pronounced in this case, the following proceedings, to carry that decree into effect, have taken place in the Court of Chancery:

February 19th, 1810. The defendant was brought into Court, under a commission of rebellion, and refusing obedience to the former order of the Court, was ordered to be forthwith committed to the gaol of Hen-rico County.

February 27th, 1810. A writ of. habeas corpus, on the motion of the defendant’s counsel, was directed to the Sheriff of Hen-rico County, to bring the defendant up; because it was stated to the Court that he was now ready to do that which was required of him.

February 28th, 1810. The defendant was brought into Court, under the writ of habeas corpus awarded yesterday, and stated his willingness to do any thing which the Court should order, that he might be discharged:

And it was ordered that, upon executing a note for all the arrears due to the plaintiff, under the several orders of this Court, negotiable at the bank of Virginia, payable to the next friend of the plaintiff, with such endorsers as Edmund Randolph, Esq. the counsel of the plaintiff, should approve; and also entering into bond in the penalty of 4,200 dollars, with such security as he should also approve, conditioned to perform the decree of this Court, heretofore ^pronounced, that the commission of rebellion should be superseded, and the defendant discharged out of custody.

N. B. The security was given in the last instance, and the money paid in the first; and the defendant thereupon discharged.

*ADDITIONAL RUTES OF THE COURT.

Rules of Court.

1. Clerk not to suffer papers to be taken from the office.

2. Notice of motions which are not of course, required.

3. Motions not of course, to be supported by affidavit.

4. Commissioners to report state of their dockets to each term.

The following rules were entered among the standing orders of the Court, at June term, 1809.

1. That the clerk of this Court shall not suffer the papers, in any case, to be taken from his office, at any time, by counsel, nor during term from the Court room, but by the Judge.

2. Reasonable notice, of all motions which are not of course, must be given to the adverse party.

3. That every motion which is not of course must be supported by affidavit, and,

4. That each Commissioner of the Court must report to every term, the state of his docket, that the Court may know the delinquent party. __  