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80 11 1. DIVORCE-alimony pending suit-how payment of may be enforced. In
195 1339 divorce cases, the court is authorized to require the husband to pay the wife
80 such sums of money as will enable her to prosecute or defend the suit, and,
e212 3497 when it is just and equitable, may allow her alimony pending the litigation, and may enforce the payment in any manner consistent with the rules and practice of the court.
2. Decrees for alimony may be enforced by execution or other final process, as other decrees in chancery, or in any other mode consistent with the practice in courts of chancery; but, as cumulative remedies, the court may enforce decrees for alimony either by sequestration of real or personal estate, by attachment against the person, by fine or imprisonment, or both, in the discretion of the court, as other decrees in chancery may be enforced.'
3. SAME-power of court to imprison for non-payment of alimony, limited by constitutional provision to cases where contempt is willfal. The power of a court of chancery to enforce the payment of alimony by imprisonment of the defendant, as for contempt, is subject to the limitation imposed by the constitution, that a party may not be imprisoned, except in cases where it shall appear he has the pecuniary ability to enable him to comply with the decree, and his disobedience is willful.
Opinion of the Court.
4. Where the neglect or refusal of the husband to comply with a decree for the payment of alimony is not from mere contumacy, but from the want of means, the result of misfortune, not induced by any fraudulent conduct on his part, the wife will be compelled to adopt some mode other than imprisonment to enforce the decree.
APPEAL from the Circuit Court of Cook county; the Hon. John G. ROGERS, Judge, presiding.
Messrs. HERVEY, ANTHONY & Galt, for the appellant.
Mr. S. K. Dow, for the appellee.
Mr. CHIEF JUSTICE Scott delivered the opinion of the Court:
Shortly stated, the case made by this record is, that, on the 8th day of February, 1875, the court entered an order in the case of Christine Blake against Barnum Blake, then pending for divorce, that defendant should pay the complainant $75 forthwith, and the sum of $65 on the first day of every inonth next following, during the pendency of the suit, for temporary alimony; also, pay the further sum of $150 to her solicitors, within ten days from that date, as a reasonable retainer and counsel fee, and that defendant refund to her the sum of $6, costs advanced, and that, in case of default in the payment of such sums of money, or any part thereof, the same should be collected in accordance with the usual practice in courts of chancery in such cases.
An affidavit having been filed, showing defendant had not complied with the decree of the court in that particular, and that there was then due, under the decree, the sum of $426, and that another monthly installment would mature on the next day, thereupon, on the 1st day of June, 1875, on motion of complainant's solicitors, the court entered an order that defendant be arrested, and brought into court, for a failure to make payments of the several installments of alimony and the solicitors' fees, as he had been directed to do by the original decree.
On being brought into court, defendant, first, entered a motion that he might be discharged from arrest, for the reason he