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cumstances the burden would rest upon the attorney to show that the bargain was a fair one for the client. The late Chief Justice Beasley, in an opinion holding that because of the nonadoption in this state of the law of champerty and maintenance, & contract between attorney and client providing for a contingent fee, proportioned to the amount of the recovery, was not necessarily void, at the same time said: "Such contracts will be inspected with jealous vigilance by the courts on account of the delicacy of the relationship of the parties to them, and the most trans. parent candor and good faith are required on the part of the attorney in these dealings with his client”: Schomp v. Schenck, 40 N. J. L. 195, 200, 29 Am. Rep. 219. And although the case cited by him related to a transaction occuring pendente lite, the same rule has been frequently applied to transactions occurring at or even before the employment of the attorney, the inquiry being whether there existed in fact a relation of trust and con. fidence between the parties: Arden v. Patterson, 5 Johns. Ch. 44 (per Chancellor 750 Kent); Allison v. Mills, 26 Conn. 213; Taylor v. Bemiss, 110 U. S. 42, 45, 3 Sup. Ct. Rep. 441 (per Miller, J.); Ex parte Plitt (1853), Fed. Cas. No. 11,228, 2 Wall. Jr. 453 (per Grier, J., at p. 476; per Kane, J., at p. 480); Foster v. Jack (1835), 4 Watts, 335, 339 (per Chief Justice Gibson); County of Chester v. Barber (1881), 97 Pa. St. 455, 463 (per Paxson, J.); Brown v. Bulkley, 14 N. J. Eq. 451, 458; Dunn v. Dunn, 42 N. J. Eq. 431, 1 Atl. 842; Porter v. Bergen, 54 N. J. Eq. 405, 34 Atl. 1067; Tate v. Williamson (1866), L. R. 2 Ch. App. 55, 61.
But there is another question inherent in the admitted facts of this case, and that is, whether the subject matter of the supposed contract between Westervelt and Mrs. Lynde, to wit, her claim for allowance of alimony against her husband, was of such a nature as to admit of being subjected to an engagement of the kind referred to. It is obvious that if her claim was in its eso tence not assignable, if it was not property, nor a future interest in property, such as could be passed under an equitable assignment, the supposed contract cannot be sustained, even if made, and made under such circumstances as otherwise would entitle it to recognition and enforcement. For, if her claim was in its nature not assignable, it could not be subjected to an equitable lien by any contract between the parties. And, if any principle of public policy prohibits its assignment, the same result follows.
It is hardly necessary to say that the question thus raised is different from that in Aspinwall v. Aspinwall, 49 N. J. Eq. 302,
24 Atl. 926, 53 N. J. Eq. 684, 33 Atl. 470, which related to the liability of a husband arising from his express agreement to pay to his wife a fixed allowance during her life for support of herself and her children. Nor is this case ruled by Bullock v. Bullock, 51 N. J. Eq. 444, 27 Atl. 435, 52 N. J. Eq. 561, 46 Am. St. Rep. 528, 30 Atl. 676, 57 N. J. L. 508, 31 Atl. 1024, which had to do with proceedings in this state for enforcement of past due alimony decreed by the court of a sister state.
An examination into the history of the allowance of alimony, and the nature and uses of alimony, will demonstrate that a claim for such an allowance is far different from a right of property. It is not a right to recover damages or compensation for injury to property or person or for deprivation of property. Nor 751 is it a claim for a property interest in a share of the husband's estate.
Alimony, in its origin, was the method by which the spiritual courts of England enforced the duty of support owed by the husband to the wife, during such time as they were legally separated pending the marriage relation. The courts of law could not adequately enforce this duty, but made a clumsy and cir. cuitous attempt to do so, under some circumstances, by employing the fiction that a wife, living apart from her husband by reason of his fault, was his agent for the purpose of binding him to
third parties for necessaries furnished to her: Manby 4. Scott, 2 Smith's Lead. Cas. *408 (502); Snover v. Blair, 25 N.J. L. 94; Vusler v. Cox, 53 N. J. L. 516, 22 Atl. 347.
At the common law a divorce from the bond of matrimony was granted by the ecclesiastical courts only for such causes as rend. ered the marriage void ab initio. Naturally, alimony was not allowed as an incident to such a divorce, for, there being no marriage, the duty of maintenance has not been undertaken: 2 Bishop on Marriage, Divorce, and Separation, sec. 855. Divorces a mensa et thoro, however, amounting merely to a legal separation, were granted for causes which rendered it improper or impossible for the parties to live together, and in such case tle ecclesiastical court ordered a periodical allowance to be paid by the husband to the wife for her support, the amount thereof being settled at the discretion of the judge in view of all the circumstances of the case, taking into consideration especially the wife's needs and the husband's means. The spiritual courts reserved and exercised the power of varying the amount of the alimony, from time to time, as required by change of circum
stances: 1 Blackstone's Commentaries, 441; 2 Bishop on Marriage, Divorce and Separation, sec. 828 et seq.
Divorces from the bond of matrimony were not granted by the ecclesiastical courts on the ground of adultery or for any other cause which supervened the marriage. For such causes, howerer, divorces were granted by act of parliament.
In this state the subject matter of divorce having been, by statute, committed to the court of chancery, and causes for absolute divorce having been allowed other than such as rendered the marriage void ab initio, there followed, as a logical consequence, 752 the allowance of permanent alimony in cases of absolute divorce, as a means of enforcing the continuing duty of support which the husband owed to the wife, and of which he was not permitted to absolve himself by his own misconduct, although that misconduct resulted in a dissolution of the marriage.
By the act of December 2, 1794 (Pat. L. 1794, p. 143), giting jurisdiction to the court of chancery in cases of divorce and specifying the causes, it was, by section 7, provided as follows: “That when a divorce shall be decreed on account of the parties being within the prohibited degrees, or for the cause of adultery or extreme cruelty, the chancery shall, and may, in every such divorce, take such order touching the care and maintenance of the children of that marriage, and also touching the main. tenance and alimony of the wife, or any allowance to be made to her, and, if any, the security to be given for the same, as, from the circumstances of the parties, and nature of the case, may be fit, equitable and just.”
On February 3, 1818, a new act concerning divorce was passed (P. L. 1818, p. 20), by which the act of 1794 and a supplement thereto, passed in 1795, were repealed. This act of 1818 materially changed the law respecting divorces, and also, for the first time, authorized a suit by the wife against the husband for maintenance (without divorce) in case of abandonment and refusal or neglect to support his wife. The section providing for permanent alimony incidental to a suit for divorce is as follows:
“Sec. 9. That when a divorce shall be decreed on account of the parties being within the prohibited degrees, or for the cause of adultery or extreme cruelty, it shall and may be lawful for the court of chancery to take such order touching the alimony and maintenance of the wife and also touching the care and maintenance of the children, or any of them, by the said husband, as from the circumstances of the parties and the pature of the case shall be fit, reasonable and just, and in case a wife
is the complainant to order the defendant to give reasonable security for such alimony and maintenance, and upon his neglect or refusal to give such reasonable security as shall be required of him, or upon default of him and his surety, if any there be, to pay or provide such alimony and maintenance, to award and issue process for the immediate sequestration of the defendant's personal estate and the rents and profits of his real estate, and to appoint a receiver thereof and cause such personal estate, and the rents and profits of such real estate, or so much there. of as shall be necessary, to be applied toward such maintenance and allowance, or 753 to such maintenance or allowance as to the said court shall from time to time seem reasonable and just, or to enforce the performance of the said decree or orders by such other lawful ways and means as is usual and according to the course and practice of the court of chancery.”
In the revised divorce act of February 16, 1820 (P. L. 1820, p. 43; Rev. 1821, p. 667), section 9 was amended by omitting the words printed in italics above, the section, as thus amended, having the effect of permitting the allowance of permanent alimony on the granting of a divorce, irrespective of the cause of divorce. Section 9, as thus revised, is substantially identical with section 19 of the revised act concerning divorces, approved March 27, 1874; Gen. Stats. 1895, p. 1269.
An examination of the statute shows clearly that alimony is imposed as a personal duty upon the husband for the personal benefit and support of the wife, or of the wife and children, in case there be children. The amount of the allowance, the method of its enforcement, the method of its application, and the security to be exacted of the husband for its payment, are all confided to the discretion of the chancellor; and he is left at liberty to increase or decrease the amount of the alimony, from time to time, according to the circumstances of the case. It will be observed that the statutory scheme is modeled closely after the practice of the ecclesiastical courts of England with reference to alimony. The purpose is to require the husband to pay the wife periodirally such sum as, in view of his circumstances and the necessities of the wife, will be a reasonable fulfillment of his continuing duty to support her. The purpose is not to enrich the wife. The ecclesiastical courts, indeed, would not ordinarily enforce arrears of alimony extending beyond a year: De Blaquiere v. De Blaquiere (1830), 3 Hagg. Ecc. 322. And it was in view of the close analogy between our statutory alimony and that allowed by the ecclesiastical courts thať this court held that, by force of the
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statute, alimony, as incidental to a divorce a vinculo, could not be given in a gross sum, nor in a portion of the real estate of the husband: Calame v. Calame, 25 N. J. Eq. 548. And the same view was adopted by the late Chancellor McGill, in Lynde F. Lynde, 54 N. J. Eq. 476, 35 Atl. 641, whose opinion was adopted by this court: 55 N. J. Eq. 591, 39 Atl. 1114.
754 It will be observed that in our statute alimony on a divorce a vinculo is placed on the same basis as that which is allowed on a divorce a mensa et thoro. Both are provided for by the same section of the act, and both are placed within the discretion of the court of chancery, so far as concerns their ad. justment, from time to time, according to the varying circumstances of the parties: 2 Bishop on Marriage, Divorce and Separation, secs. 1038, 1048.
It follows, as a necessary consequence of what has been said, that a wife's claim for an allowance of alimony is a purely personal right, and not, in any sense, a property right. It is, in its nature, not susceptible of assignment by the wife to another, nor capable of enjoyment by her in anticipation. And this result is fully sustained by the authorities.
In Miller v. Miller, 1 N. J. Eq. 386, there were articles of separation binding the wife to accept a nominal sum annually for her support. Under the circumstances of the case it was held that she was not entitled to have the articles of separation set aside, but the master who heard the cause proceeded to inquire whether these articles would bar the complainant from the recovery of alimony, and he held they would not.
An examination of the English cases will be useful. In Stones v. Cook (1834), Sim. 22, S. C. (1835), 8 Sim. 221, note, Vice-Chancellor Shadwell said that the ecclesiastical court would probably allow the wife's executors to enforce payment of arrears of alimony, accrued in her lifetime, against the husband, and that, for this reason, a bill in chancery in aid of the ecclesiastical jurisdiction was not necessary. But as the case was in doubt, the learned vice-chancellor overruled the demurrer. This decision was reversed by Lord-Chancellor Lyndhurst, who took it for granted that the claim for alimony must cease with the death of the wife; that executors might maintain a suit in the ecclesiastical court, but not for arrears in alimony; and that, notwithstanding this, there was no authority to warrant the court of chancery in entertaining a bill by the wife's executors against the husband for arrears of alimony accrued prior to her death.