Page:Harvard Law Review Volume 4.djvu/49

33 DEFECTIVE ALIMONY DECREES. 33 children to provide for? To whom should the consideration, if any, be shown? The husband has a right to rely on the belief that his property will not be taken from him except ** according to the law of the land," and to absent himself, if he sees fit, from the hearing of a suit that in legal reality only asks a divorce. He may rely on the belief that under a prayer for alimony, with no allegations of that which gives right to it, the court will act lawfully. In Bender v. Bender,^ a suit for divorce and alimony, the grounds for alimony as alleged in the pleadings of the case were different from those recited in the decree. Held : — " The plaintiff made one case in her pleadings, and has succeeded in obtaining an (alimony) decree in another and different state of facts. *The maxim that the decree must be secundum allegata, as well as secundum probata,^ says Chief Justice Marshall in Schooner Hoppett v, U. S.,^ ' is essential to the due administration of justice in all courts.* The rule is founded in sound reason and good sense, and it requires that a party must obtain a decree on the grounds stated in the pleadings, and that the proofs must tend to establish the material allegation therein, and its observance by the court is absolutely essential to the due administration of justice." De- cree for alimony reversed. If, in the opinion of any, it is improper in the man to refuse to resist separation from a wife who wants to get rid of him, surely the penalty is not without limit. He still has some re- maining rights as to his own property, which it is the court's duty to maintain.^ Where, in the record of the whole divorce suit, are those allegations which bring the subject-matter of alimony, to the extent of the decree, within the jurisdiction of the court? In Cummings v. Cummings,* a suit for divorce and alimony, it was held (p. 440) : — "The portions of the decree as to alimony must be reversed; they are not based upon any pleading in the cause. P. 441 : The relief which the court below attempted to grant plaintiff was neither consist- ent with the case made by the complaint nor embraced within the issues made by the answer. In Gregory v. Nelson (41 Cal. 278) it was held that if a judgment in equity deems the existence of any facts not within 1 14 Or. 355. 2 7 Cranch, 389. cannot alter the law." * 75 Cal. 435.
 * Hinkley v. Machine, 15 N. J. L. (3 Greene) 476. " A court, by a rule of practice,