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, however, 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), giving 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 maintenance 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divorce was passed (P. L. 1818, p. 20), by which the act of 1794 and a supplement thereto, passed in 1795, were repealed.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 nature 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 thereof 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 periodically 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 that this court held that, by force of the Am. St. Rep., Vol. 97-45

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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 v. 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 adjustment, 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), 7 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 payruent 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.

In Vandergucht v. De Blaquiere (838), 8 Sim. 315, 7 L. J. Ch. 270, 2 Jur. 738, it appeared to the vice-chancellor that a narried woman, living separate from her husband, after a decree of 755 divorce a mensa et thoro, and entitled to alimony under the sentence of the ecclesiastical court, had undertaken to charge future installments for payment of necessaries purchased by her. Vice-Chancellor Shadwell said: "Alimony materially differs from separate property. It is liable to be varied by the ecclesiastical court according to the husband's circumstances; whereas, separate property always remains the same, whatever alteration may take place in the circumstances of the husband." Upon this ground he refused to enforce the charge. Afterward, however, additional proofs having been submitted, Lord Chancellor Cottenham varied the vice-chancellor's order with respect to a portion of the fund that had been subjected to the charge, on the ground that this portion appeared not to be the fruits of alimony, leaving untouched the title to the alimony: Vandergucht v. De Blaquiere, 5 Mylne & C. 229, 244, 3 Jur. 1116. It should be remarked that the circumstance of the wife's disability to contract, by reason of the coverture, was not alluded to in the case, and indeed is of no consequence. In equity, and also in the ecclesiastical law, a married woman was permitted to charge her separate estate; and so the real question in the case was whether alimony was separate property such as could be charged.

In re Robinson (1884), 27 Ch. Div. 160: In this case it appeared that the divorce court had made a decree for a judicial separation between the parties and had ordered the husband to pay permanent alimony to the wife in monthly payments. Afterward the husband was declared a lunatic, and, in the lunacy matter, an order was made for the payment out of his estate of an annuity to the wife, until further order, equivalent to the alimony theretofore decreed by the divorce court. After the making of this order the wife assigned the annuity to a third party, and the assignee applied by petition to have the annuity paid to him. It was held by the court of appeal that the petition must be refused, on the ground that whether the annuity was considered as alimony or as an allowance made to the wife by the court in lunacy, it was in either case not assignable. In the reasoning of the lords justices, the decision was based on the ground that the annual recurring payments (whether considered 750 strictly as alimony or not) were for the personal benefit of the wife, and were in their nature inalienable; that such

future payments were not in the nature of property, but were payments made to the wife for her maintenance, of which she could not deprive herself by anticipation.

Harrison v. Harrison (1888), 13 Prob. Div. 180: In this case a decree for dissolution of marriage had been made on the wife's petition, with an order requiring her husband to secure to her an annuity for life. It was held in the court of appeal that such an annuity, under the terms of the statute, differed from alimony in that it was not capable of being withdrawn. The annuity was therefore held to be property, such as might be subjected to a charge for the benefit of the solicitors who had recovered it, but the court of appeal refused, in the exercise of its discretion, to make the order under the circumstances of the

case.

In Watkins v. Watkins (1896), Prob. Div. 222, it was held by the court of appeal that sums of money ordered to be paid by the husband for the maintenance of his divorced wife, after a divorce a vinculo, under authority of a statute which permitted the court to reduce the allowance fixed or discharge the order for maintenance, but not to increase the allowance, were so far analogous to the alimony of the ecclesiastical law that they should be treated as a purely personal allowance which could reither be alienated nor released so long as the order subsists. In the judgments delivered by the lords justices, no doubt was entertained that permanent alimony, which is under the control of the court, and can be either increased, decreased, or suspended at the discretion of the court, is, in its essence, inalienable.

In Linton v. Linton (1885), 15 Q. B. Div. 239, 54 L. J. Q. B. 529, 33 Week. Rep. 714, 2 Morr. 179, 49 J. P. 597, it was held in the court of appeal that future payments of alimony were not capable of being valued, and were not a "debt or liability" within the meaning of the bankruptcy act, and so could not be proven in the bankruptcy of the husband; and that, notwithstanding his bankruptcy, he was still liable to pay the alimony.

In re Hawkins (1894), 1 Q. B. 25, 10 R. 29, 69 L. T. 769, 42 Week. Rep. 202, 1 Mans. B. R. 6: It was held by the queen's bench 757 division that arrears of alimony which accrued after the date of a receiving order in bankruptcy, and before proof, were not provable in bankruptcy; and it was held by Vaughan Williams, J., that such arrears would not be provable whether they accrued before or after the date of the receiving order.

In Kerr v. Kerr (1897), 2 Q. B. 439, 66 L. J. Q. B. 838, 77 L. T. 29, 46 Week. Rep. 46, 4 Mans. 207, it was held that arrears