Sprague, J., delivered the following dissenting opinion, in which Sanderson, J., concurred : This is an action by a wife against her husband, for permanent alimony. The substance of the complaint is as fol[273]lows : That plaintiff and defendant were duly married, and became husband and wife in the Kingdom of Prussia, in the year 1859, and immediately removed to the State of California, from which time they continued to live and cohabit together as man and wife, in this State, till November, 1864, during which time they had born unto them one child, a son (now under plaintiff’s care), and by their united exertions acquired property of the value of §20,000, which property consists of money, stocks, notes and other personal securities, now entirely in the hands and under the control of defendant; that in the month of November, 1864, defendant, without cause or provocation, drove plaintiff from his house, and ever since has, and still does refuse to live or cohabit with plaintiff, allow her to return to his house, or to speak to him; that since the separation, as aforesaid, the defendant has supplied her with $77 per month for the maintenance of herself and child, but threatens to reduce or wholly deprive her of this allowance at his pleasure; that she has no separate property. Wherefore, plaintiff prays permanent alimony in the sum of $150 per month, to be paid and secured to her for the separate maintenance of herself and child, and that the custody of said child be awarded to her.
This complaint was filed August 9, 1866, to which defendant demurred on the ground: First—That the complaint does not state facts sufficient to constitute a cause of action; Second—-That the facts stated in the complaint do not warrant the relief asked for, or any part thereof.
The points presented on this appeal are directly raised by the demurrer to the complaint, and are: First—Can an action for alimony alone, as an independent proceeding, under any state of facts, be maintained in this State ? And, Second—If such action can be maintained, upon a proper state of facts, are the facts stated in the present complaint sufficient to sustain the action and authorize relief to any extent ?
At common law a wife cannot maintain an action against her husband for any purpose, under any circumstances, and if the present action can be maintained, it must find its war[274]rant in our State legislation, or within the comprehensive but well defined original, equitable jurisdiction of our Courts.
The facts alleged in the complaint manifestly do not place the plaintiff within the direct provisions of any statute of this State authorizing an action to be maintained by a wife alone; or against her husband for any purpose; no fact or facts are alleged constituting a ground for divorce, nor does the action concern her separate property, nor her right or claim to homestead property. And in considering the question with reference to the right of the wife to maintain this action for the relief sought by virtue of the original equity powers and jurisdiction of our District Courts, the question naturally suggests itself, whether the statute of this State concerning divorce, which provides for temporary and permanent alimony, in connection with and based upon an action or final decree for divorce, does not, by necessary implication, exclude and deny a right of action for alimony, disconnected with and independent of an action for, or final decree of divorce. In other words, whether the power conferred upon the Court by the statute, to provide for the separate maintenance of the wife, pending an action for or after final decree of divorce, does not, by necessary implication, negative the power or jurisdiction of the Court to decree an allowance for the separate maintenance of the wife, except when jurisdiction is acquired by the commencement of an action for divorce, upon allegations of statutory cause therefor.
The fourth section of the Act concerning divorces (Statutes of 1851, p. 186), enumerates and defines the causes for which our District Courts are authorized to grant divorces “from bed and board or from the bonds of matrimony, ” and Section 7 of the same Act provides that “ in any action for divorce the Court may, during the pendency of the action, or at the final hearing or afterwards, make such order for the support of the wife and- the maintenance and education of the children of the marriage as may be just, and may, at any time thereafter, annul, vary or modify such order, as the interest and welfare of the children may require. ” This statute, in my judgment, by necessary implication, fixes and determines the basis of the right of the wife to claim an allowance for her [275]separate maintenance, as against her husband, limits and restricts the power and jurisdiction of the Court to grant such allowance to the wife, subordinates such power and jurisdiction to an antecedent jurisdiction of the Court, acquired and entertained in the statutory actions for divorce, and renders the right of the wife to claim alimony, and the power of the Court to order or decree the same, dependent upon and incidental or auxiliary to an action pending for divorce, or final decree in such action.
The power and jurisdiction of the Court to grant temporary or permanent alimony is directly conferred, pending, or on, or after final decree in an action for divorce, and, by necessary implication, is denied or withheld, as an original, independent jurisdiction or power, upon the well established principles of construction of statutes expressio unius est exclusio alterius. And this would seem to be conclusive alike upon the common law and equity powers of our Courts, and must control, notwithstanding the apparent hardship in exceptional eases, until the Legislature may deem it expedient to recognize a right in the wife to demand an allowance from the husband for her separate maintenance, under prescribed circumstances, without reference to a legal separation, and provide a mode for the enforcement of such right.
It is very clear that the claim attempted to be enforced by this action has no common law existence as a separate, independent right; and the statutes of our State having failed to recognize or confer such right, except as incidental to and dependent upon a proceeding for divorce, thereby, by necessary implication, denying the existence of the same as a substantive, legal or equitable entity, capable of invoking the aid of our Courts for its recognition and enforcement, it follows that the first point raised by the demurrer to the complaint is well taken, and the Court, in my judgment, erred in overruling the same.
With these views, it becomes unnecessary to indicate an opinion upon the question as to the original inherent jurisdiction and power of a Court of Chancery over the independent subject-matter of alimony or separate maintenance to the wife, in the absence of legislative enactments: but the
[276]very able and plausible argument of counsel for respondent has prompted a very thorough investigation of all the authorities referred to by counsel, and all within the reach of this Court, and after such investigation, I am entirely satisfied, upon reason and largely preponderant authority of both English and American Chancery Courts, that the subject-matter of allowance for separate maintenance or alimony to the Avife, as an independent matter, is not within the general original jurisdiction of Courts of Equity, and such jurisdiction is only exercised in reference thereto as derivative and incidental to some other primary, original, substantive matter, to which their jurisdiction had attached, or subject to their special control. Says Mr. Clancy: “These Courts have no jurisdiction to decree such a provision to the wife, merely because her husband has deserted her, or because she finds it necessary for her safety to remove herself from his power, unless she has also property over which they have control. Such a jurisdiction belongs to the spiritual Courts only, and even its authority arises but incidentally from the power it has of decreeing separation a mensa el thoro, when the wife libels her husband, on account of desertion or cruelty, and seeks the consequent relief.” (Clancy on Married Women, Chap. IX, p. 549.) And Mr. Bishop, in his very admirable work on Marriage and Divorce, after giving the definition of the term alimony as ‘1 the allowance which the husband, by order of Court, pays to his wife living separate from him for her maintenance,” says : “The allowance may be for her use either during the pendency of a suit, in which case it is called alimony pendente lile, or, after its termination, called permanent alimony. It has no common law existence as a separate, independent right; but, wherever found, it comes as an incident to a proceeding for some other purpose, as for a divorce—no Court in England having any jurisdiction to grant it where it is the only relief sought.” (2 Bishop on Mar. and Div. 4th edition, Sec. 351, p. 549.) Again, after a very general citation and review of English and American authorities, the reasons and foundations for the rule, as above stated, are briefly presented in Section 374 (561) as follows : “As a general proposition, a decree [277]for separation in favor of the wife must be attended, if she asks for it, by a decree for alimony. And, upon the same principle rests the better and general doctrine already discussed, that no Court can grant alimony when it is the only thing sought, because, in the nature of the case, an adjudication allowing the wife to live separate from the husband is a necessary foundation for an adjudication compelling him to pay her a separate support. His ordinary duty is to maintain her in cohabitation with him—not otherwise; and the Court cannot adjudge him obligated to do it in separation until it adjudges that she may live separate. * * * *
Upon the same principle rests the legal liability of the husband to pay any third person for necessaries which himself has refused to provide; but here, as the wife is not a party to the suit, the adjudication can extend no further -than to control the particular case. * * * * In short, the doctrine extends through the entire field of our law as administered alike in the common law, equity and ecclesiastical tribunals, that, in effect, whenever the wife is adjudged entitled to live separate from her husband, by reason of breaches of matrimonial duty committed by him, a concurring adjudication must be pronounced that he support her while so living; the one adjudication being commensurate in extent vdth the other, and neither one existing without the other.” (See also 2 Story’s Eq. Jur. Secs. 1422, 1424; Fonbl. Eq. B. 1, Ch. 2, Sec. 6, Notes n n; Fischle v. Fischle, 1 Blackf. 365; Chapman v. Chapman, 13 Ind. 397; Shannon v. Shannon, 2 Gray, 285; Shafe v. Shafe, 4 Foster, 567; Parsons v. Parsons, 9 N. H. 309; Lawson v. Shotwell, 27 Miss. 633; Doyle v. Doyle, 26 Mo. 549; Yule v. Yule, 2 Stockt. 143; Covey v. Covey, 3 Id. 400; McGee v. McGee, 10 Geo. 482; Peltier v. Peltier, Harrig. Mich. Ch. R. 29.)
In several States, by legislative enactment, proceedings for obtaining an allowance for the separate maintenance of the wife, disconnected with proceedings for or a decree of divorce, is authorized.
In Maryland, Courts of Chancery exercise jurisdiction to grant alimony to the Avife, but only upon allegation of facts which would be a sufficient foundation, in England, for [278]granting a divorce a mensa et thoro. (Wallingsford v. Wallingsford, 6 Har. & J. 485; Helens v. Franciscus, 2 Bland. Ch. R. 568.) And New York follows the procedure of the English Courts. (2 John. Ch. R. 206; 5 Id. 464; 3 Cow. 590; 6 John. Ch. R. 25, 178; 4 Paige, Ch. R. 74.)
It is clearly the duty and common law obligation of the husband to provide a suitable maintenance for his wife, if within his power, during the existence of the marriage reflation. Yet, Courts of Equity have no original jurisdiction to enforce specific performance of this obligation. “The proper remedy,” says Mr. Justice Story, “when the husband abandons the wife, or drives her from his house, and neglects or refuses to provide her suitable maintenance, is, by an action in a Court of law, to be brought against the husband by any person who shall, under such circumstances, supply the wife with necessaries according to her rank and condition; for, by compelling the wife thus to leave him, the husband sends her abroad with a general credit for her maintenance.” (2 Story’s Eq. Jur. Sec. 1422.) And I apprehend this is the only remedy against the husband for the maintenance of the wife, in this State, prior to the commencement of an action for divorce by either husband or wife, upon allegation of statutory cause.
In the present case, no statutory ground for divorce is alleged in the complaint. There is, therefore, no allegation of facts sufficient to sustain the action, or authorize relief, to any extent, in the direction prayed for.
For these reasons, I think the judgment should be reversed.