Wardlaw v. Wardlaw

McCay. J. 1. The witness shown to be absent, was a very material witness. Indeed, if the whole case is in the record, and the statement as to what this witness would prove is true, he seems to be about the only one, except the parties, who'knows much about the matter. He is stated to have been personally conversant with the mutual conduct of the parties, and to have been present at the separation. Whilst the granting or refusal of alimony is in the discretion of the Court, still that discretion is not the mere whim or notion of the Court. It is to be founded on evidence, and is to be exercised wisely. We think the Court ought to have continued the case, or, if not, have, at least, tried the main issue, at the demand of the husband. It is a great hardship for a husband to be compelled, from term to term, to pay attorneys and support their client, from his hard earnings, that they may make war upon him, and it is only from the necessity of the case that it is allowed. If the absent witness had been present, and had sworn as it -is claimed he would — that Wardlaw had uniformly treated his wife kindfy, and that he was present at the separation, and knew Mrs. Wardlaw had left without cause, we hardly think the Judge would have allowed the alimony. 2. The Court should be very cautious in granting alimony in suits by the wife for divorce. We are satisfied, from our observation,.that these suits are not unfrequently founded in the hope of alimony. So far as the evidence goes in this case, the principal complaint seems to have been that the [56] husband insisted that the wife should aid him with her labor. He insisted she should work, at which she demurred, and left him. We do not think her conduct since the separation, is such as is commendable. We would not bo censorious, yet we cannot but think this woman better off at home with her husband. In the changed state of affairs amongst us, it is a great stretch of female privileges to claim to sit with folded hands, and enjoy the fruits of the toil and sweat of the husband. We do not think such is the course of our good wives, and we are not disposed to encourage it. We think, too, the alimony, in this case, is too much. In the sphere of life of these parties, the sum is large enough to enable the woman to live and do nothing. This, she has no right to do. And we reverse the judgment of the Court.