Page:Harvard Law Review Volume 4.djvu/42

26 26 HARVARD LAW REVIEW. respecting alimony, the court takes into consideration the prop- erty and capacity, or, in the phrase of the English ecclesiastical courts, the * faculties ' of the husband at the time." ^ This •* property " or " capacity " to earn are then material facts. Must they be alleged? In Sparhawk v, Sparhawk,^ the court held that an alimony decree must be " warranted by the allegations of the bill or petition," and cited Mason v. Daly ^ as the controlling authority. But this is an equity case. It cites Stanley v. Stark,* also an equity case, which cites in turn Smith v. Townsend,^ still another case in equity. The principle as to pleading material facts which is enounced in this last case, and which thus runs by successive citations into the alimony case of Sparhawk v. Sparhawk, is as follows : " Upon this appeal there is nothing before the full court except the question whether the final decree is supported by the pleadings in the case. It may be true that the evidence produced at the hearing fully sustained the decree, and yet it is open to the defendant to claim that upon the allegations in the bill the plain- tiffs, as matter of law, are not entitled to the relief awarded." ^ This chain of citations abundantly demonstrates that equity law applies to a bill that asks alimony, and to the decree that is founded upon its allegations^ 1 " The defendant husband being left entirely without property, no decree for ali- mony can be rendered against him, alimony being an allowance out of the htisband's estate for the support of the wife. Where there is no estate, there can be no alimony." Feigley v. Feigley, 7 Md. 563. 2 120 Mass. 390. « 117 Mass. 403. ® Slack V. Black, 109 Mass. 499. " Except in cases where express exceptions have been made, the laws regulating the practice in the court of chancery apply in cases of divorce." Fulton v. Fulton, 36 Miss. 517, 520. ■^ See also Crockett v. Lee, 7 Wheat. 522, p. 525 : "No rule is better settled than that the decree must conform to the allegations as well as to "the proofs of the cause. If it be void in itself, no testimony can sustain it. The counsel say, it would be mon- strous, if, after the parties have gone to trial and directed all their testimony to a certain point, their rights should be made to depend, in the appellate court, on a mere defect in the pleadings, which had entirely escaped their observation in the court where it might have been amended, and the non-existence of which would not have varied the case. The hardships of a particular case would not justify this tribunal in pros- trating the fundamental rules of a court of chancery ; rules which have been established for ages, on the soundest and closest principles of general utility. " If the pleadings of a cause were to give no notice to the parties or to the court of the material facts in which the right asserted was to depend, no notice of the points to which the testimony was to be directed, and to which it was to be limited ; if a new case might be made out in proof differing from that stated in the pleadings, all will perceive
 * 115 Mass. 259. 6 109 Mass. 500.