
    BALLENTINE v. BALLENTINE.
    On bill by a wife against her husband, for alimony and maintenance, and for the support and maintenance of their child, and answer put in by the husband, and petition filed by the complainant for a proper allowance, until the final termination of the suit, and for an order directing the defendant to pay a proper sum for counsel fees, and to defray the expenses of the suit, the court, under the circumstances of the case, made an order directing the husband to pay two dollars and fifty cents a week towards the support of the child and the complainant, while she should keep the child, till the further order of the court, and made no order as to counsel fees and expenses of the suit.
    The bill is exhibited by the wife against her husband, for alimony and maintenance of the complainant, and for the support and maintenance of their child. It states that the marriage took place May 13th, 1844, in Newark. That a child was born of tlie marriage, and that they lived together in Newark, till June, 1845, when she left home, with the consent and concurrence of the defendant, and under the care of her brother, on a temporary visit to her said brother, in Orange county, Ne.w York. That she continued in Orange county near four months. That in October, 1845, she received a letter, dated September 12th, purporting to be written by Asa Whitehead, on behalf of her husband, slating that her husband had directed him to remit to her twelve dollars, enclosed in the letter, for the maintenance of the child, and staling that the writer understood her husband to say that, for the present, he would pay fifty dollars a year, in quarterly payments, for the same object, and that he, Ballentine, did not consider, after what had transpired, that he was bound, or ought to contribute anything towards her maintenance. That, about a week after she received this letter, she set out from the house of her brother, and in his company, to return to Newark, where she arrived on Saturday evening, the 25th October, 1845. That, shortly after arriving at the residence of her husband, he came in, and, on her accosting him, he made no reply, but left the house, and that his mother forbid her to stay in the house, and told her they had business so arranged that she could not come back, and had no place there; that the house was hers, and she, the complainant, could not live there.
    The bill states that the house had been rented by Ballentine, for a year from April 1st, 1845. That she remained in the house that night, and, finding that her husband absented himself from the house, or kept out of the way, so as not to be seen by her, and evinced a determination to have no communication or intercourse with her, and that he and his mother designed to drive her from the house, she, on the next morning, left the house, taking her child with her. That,, about a week or ten days after, she went again to her husband’s house, and took dinner there. That her mother-in-law again told her she could not have a home there. That on her addressing her husband, and attempting to come to some understanding with him, he made no reply — said nos a word to her — and left the house. That she has caused applications to be made to him, to make a suitable provision for her support, or to permit her to live with him, but he has declared, in answer thereto, that he would never consent to have her live with him again; and he has declined and refused to make her any allowance for her support, offering only to allow twelve shillings a week for the maintenance of the child. That her husband is a journeyman jeweler, and earns about fifteen dollars a week. That she, previous to her marriage, was a mantuamaker; that the child is between ten and eleven months old, and of a delicate constitution, requiring a great deal of her time and attention.
    The answer of the defendant states that, at the time of the marriage and of the birth of the child, the parties resided in Newark, and that the defendant has ever since resided in Newark. That the complainant, except as after stated in the answer, continued to reside in Newark till the filing of her bill. That the complainant lived with him, as his wife, till some time in June, 1845, when she left him. He denies that he has any knowledge, information, or belief that the complainant was then in feeble health, or debilitated by nursing and taking care of the child, but says that, as far as he knows, and as he believes she was, when she left with her brother, Gilbert Conklin, as stated in her bill, in June, 1845, in her ordinary good health; that he has no knowledge, remembrance, or belief that she then complained or alleged that she was in feeble health, or debilitated, aforesaid, or that she had any occasion to go away on account of her health, lie denies that she left him on a temporary visit to her brother, or for the purpose of making him a visit; but says that, on the contrary, before she left, and when' she left, she declared her intention of going, and that she did not intend to return ; that before that time she had frequently said she did not wish or intend to live with him, but intended to leave and live separate from him; that before she went away she packed up all her wearing apparel and her bed, including several things which had been procured after the marriage and took as many of them as her brother could carry in his wagon, and the remainder she left, with directions to send them to the house of her friend, James Burie, who, she said, would send them to her; and that James Burie afterwards called for the same and carried or sent them to the complainant; that he, the defendant, told ihe complainant there was a house and a home for her, and that she could remain there as long as she pleased; but that she, notwithstanding, declared her intention of leaving him and not to live with him again ; that she expressed her utter disregard for him, and among other opprobrious observations, said she thought no more of him than she did of a negro; and when he showed some concern at the manner in which she was proceeding, she slapped her hands, and said he need not feel bad about her going away, for she was glad she was going, or used words to the like effect.
    That the complainant having stated to him her determination to leave him and to go to Warwick, in the State of New York, with her child, and to remain there, he promised to pay her fifty dollars a year, in quarterly payments, for the care and maintenance of the child; and that in pursuance of this arrangement, he procured Mr. Whitehead to write her and enclosed twelve dollars; that Mr. Whitehead, in the letter to her, expressed the object of sending said money, and it may be that in other respects the letter is as stated in the bill, but that he has no copy thereof and cannot state with certainty. He says he does not know how she spent her time at Warwick, but denies that she went there on a temporary visit; and says she went there for the professed purpose of taking up her residence, and with the declared intention of not returning to him.
    That in October, 1845, four months or more after she left as aforesaid, she returned to the house where he was living with his mother, in Newark, late at night; that his mother prepared supper for her, of which she partook; that she immediately declared she had not returned for the purpose of staying; that her. brother had been informed he had made himself liable to a prosecution for taking her away, and that her object in returning was to save him from it; that she desired an omnibus might be sent for, to take her to Mr. Durie’s, where she intended to go; that his mother- invited her to stay, aud remonstrated with her against going out at so late an hour, and after considerable persuasion she consented to stay all night, and did so; that the next morning, between six and seven o’clock, she left the house, and, as he has been informed and believes, went to Mr. Durie’s ; that after she arose in the morning, his mother requested her to stay to breakfast, but she declined, aud went away, using opprobrious language both with respect to him and his mother ; that he received no notice from her of her intention to return to Newark, previous to her returning as aforesaid; that after what she had said and done as aforesaid, he was much surprised, and hardly knew what her object was, and it may be that he made no reply when she accosted him; but he denies that she said anything to him by which she expressed any desire to live with him again or claiming from him any protection as her husband.
    He says he was not present at any conversation between his mother and the complainant, in which his mother used the language to the complainant stated in the bill, nor does he know whether such language was used ; and he denies that any such language was used by his request, advice or direction. He admits that the house in which he lived when complainant returned to Newark, had been rented by him from April 1st, then last past, for one year; but says that the furniture in the house belonged to his mother, and that she and two of her grandchildren lived in the house with him, and that she had the charge aud direction of the affairs of the family. That from the time complainant.returned, to the filing of the b'U, she did not, either herself or through any other person, make any overture or application to him to be received by him, or to live with him again as his wife, but he admits he was applied to several times on her behalf to make a provision for her maintenance; and he says he offered to make a provision for the support of the child which he believed and was advised was liberal and more than necessary for that purpose; that, through his counsel, he offered to pay one hundred dollars a year, and give security therefor, on security being given to indemnify him against any further charges; that he understood she was willing to receive that sum, and supposed the matter would be amicably settled, but that, while negotiations were pending, the complainant suddenly filed her bill. Admits that application was made to him by Durie for the payment of complainant’s board ; that he referred Durie to his counsel, Mr. Whitehead, and he is informed and believes that Durie called on Mr. W., and that Mr. W. suggested to him that, as negotiations were pending for an arrangement, it would be better to let it remain till the negotiations were concluded, and that if they resulted in a settlement, there would be no difficulty in his bill being satisfactorily adjusted; in which suggestion he is informed and believes Mr. Durie acquiesced.
    He says he is informed and believes that Mr. W. said nothing touching the defendant’s paying or being liable to pay said bill, other than as before stated. That he is a jeweler, employed by Tsaac Baldwin & Co.; that his wages at first were seven dollars a week; that for eighteen months past, or thereabouts, they have amounted to fifteen dollars a week; that the business is subject to depressions, and that depression is now apprehended ; that complainant is a mantuamaker, and, as far as he knows and believes, is now in good health, and able to pursue her business and provide for herself; that he is willing, either to take charge of the child and provide for it, or, for the present, to let it remain with the complainant and make her a liberal compensation for her care of it and its maintenance. He .“■aye the child has an ordinarily good constitution, and, as far as he knows and believes, has usually been in good health. That lie has no estate except his ordinary wearing apparel and a few articles of furniture, of small value, and a small sum, not exceeding $110, due him from his employers; and that he is solely dependent for his support on his daily labor. He says that one of the propositions made by complainant, through one of her friends, to his counsel, was, that he should pay her $100 a year for five years, and that she would take care of herself and the child ; that his counsel agreed to the proposal, with the qualification that the money should be considered as paid for the support of the child, the complainant, however, to have the disposition thereof, and the defendant to give security for the-payment, on condition that she would indemnify him against any further claim on h.er account or that of the child, but that she refused or neglected to comply. That another proposition made by her was that he should pay her down $500, and that she would take care of herself and the child, but that she offered no adequate security for his indemnity, and he declined the proposition as well because he considered it unjust and unreasonable as that he was unable 'to comply with it by paying the money, and that no adequate security was offered for his indemnity.
    The complainant filed a petition for a proper allowance until the final termination of the suit, and for an order directing the defendant to pay a proper sum for counsel fees, and to defray the costs and expenses of the suit, and by her counsel moved for an order accordingly. The motion was resisted. Affidavits were read in opposition to the motion.
    
      Wm. M. Scudder, for the motion.
    He cited 8 Wend. 367, 368; 2 Hoff. Ch. Pr. 246; 2 Paige 115, 621; 1 John. Chan. Rep. 108; 1 Edw. Ch. Rep. 382; Ibid. 62.
    
      A. Whitehead, contra.
    
    He cited 1 John. Ch. 604; 6 Ibid. 91.
   The Chancellor.

The question which will be involved in this case, if it proceeds to a hearing on the merits, will be, whether the defendant has abandoned his wife or separated himself from her and refused or neglected to maintain and provide for her. Rev. Stat. 924, § 10. The bill contains no charge that he has neglected or refused to provide for her in his own house, nor does it show any sincere desire on her part to go back to his house and live with him as a wife and b maintained and supported by him there, nor is there any sufficient reason offered in the bill why she again left her husband’s house the morning after she returned from the State of New York. It is her duly to live with her husband unless there be some sufficient reason for leaving his house and if she has left it without sufficient reason, it is her duty to return.

The _ nature of the case made by the bill may be considered on an application for alimony pending the suit. In this case, an order will be made for a weekly allowance of two dollars and fifty cents, for or towards the support of the child of the complainant while she keeps the child, until the further order of the court. The other branch of the motion is denied.

Order accordingly.

Cited in Martin v. Martin, 4 Hal. Ch. 569.  