sues in the case, appear in the record. The final decree of the court dismissed complain ant's bill at his costs, and directed that the complainant pay the defendant $300 for the services of her solicitor in defending said cause in her behalf. From this decree complainant appealed. appeal as well as the petition for alimony and counsel fees. We are of opinion that the decree of the court below should be affirmed, but a majority of the court think that alimony pendente lite should not be granted in this court. Lest there be some misapprehension of our position in the matter, we will state as briefly as the novelty and importance of the questions will admit those conclusions upon which the court is united, as well as those upon which it is divided. We are agreed upon all propositions announced except when otherwise expre-sly stated. We will first touch upon the power of the court to grant alimony in a nullity suit. Neither party to the record disputes such power. Yet, as the allowing of alimony in such cases cannot be justified under our statutes, which, in proceedings where the wife is a defendant, refers exclusively to cases of divorce, and as the question has never before arisen in this state, we think it best to refer to the principles of law controlling such cases, and cite some authorities in support of the same. In a number of cases it has been held that independent of statutory authority the courts have power to grant alimony and suit money in such cases brought by the putative husband. Where the form of relief prayed for in such cases is for a divorce on the ground of the nullity of the marriage, it has been held that statutory provisions in reference to alimony similar to ours applied only to divorces for causes arising after the marriage, but that After the case was brought here upon appeal the appellee filed her petition and motion thereon for an order requiring appellant to pay her the sum of $15 per week as temporary alimony, as was decreed in the lower court to be reasonable, and such other sum as the court should deem reasonable, and also to pay her costs of said motion and other costs and solicitor's fees. The petition for reasons why the relief prayed for should be granted, in substance, alleged that appellee was without means of support; that she had no prop erty or resources by which she could main tain herself or employ counsel during the pendency of the cause in this court; that in the circuit court an order was made, after testimony taken on both sides by a special master, allowing her $15 per week for alimony, and counsel fees; that by reason of the appeal to this court only a portion of said alimony and counsel fees had been paid; that the appellee, as will appear by the testimony taken in the cause, and in the record in this court, is a man possessed of large means and resources, and is amply able to support her, and to pay a reasonable solicitor's fee to enable her to maintain her defense in this case. The appellant filed an answer resisting the petition upon the ground alleged, that the ap-in actions for divorce on the ground of nulpellee has ever since the rendition of the final lity, the power exists independent of statute decree by the circuit court on the 23d of Feb- as an incident to the jurisdiction of the court ruary, 1893, and still continues to lead, a in such cases. O'Dea v. O'Dea, 31 Hun, 441; lewd life, and has supported and still con- Griffin v. Griffin, 47 N. Y. 134; Brinkley v. tinues to support herself through and by Brinkley, 50 N. Y. 184, 10 Am. Rep. 460. means of such lewdness. The answer also al-The case of Griffin v. Griffin, supra, in the leged that the allowance by the circuit court relief sought, was very much like the present. of alimony and counsel fees was excessive The court said: "It is conceded that there is and should not be taken as a basis for allow no statute in terms authorizing the order, ances pending the appeal. To this answer and that, if sustained, it must rest upon the the appellee filed a replication emphatically incidental powers formerly vested in the denying all the material allegations of the court of chancery, in cases of this descripanswer as to her lewdness. This replication tion, and to which the supreme court has also alleged the great want and destitution succeeded. Yet it has been the conof appellee, and contained recriminatory al- stant practice of the court of chancery, both legations to the effect that the complainant before and since the Revised Statutes, to had, ever since his appeal was taken to this make equitable provision for all these matcourt, vigorously endeavored to prevent the ters; and in so doing, it has been guided by appellee from living an honest and virtuous the decisions of the ecclesiastical courts of life, and constantly pursued her with designs England in similar cases," citing a number of driving her into a life of prostitution. of English authorities. "This has not been The details of such general allegations are done upon the theory that the court of chanset out in the replication, but are unneces- cery of this state was vested with the jurissary to be stated here. At the time of filing diction of the ecclesiastical courts of Engthe replication, appellee also filed an affidavit land in matrimonial cases, or that . . alleging her destitution, and denying that it ever possessed any jurisdiction in cases of she leads, or has lead, a lewd life as alleged divorce other than that which was conferred in the answer. by our own statutes; but upon the ground of the general equitable jurisdiction of the court, and also that when our statutes did confer jurisdiction upon the court of chancery, in those actions for divorce which by the English law are solely cognizable in the ecclesiastical courts, the grant of that jurisdiction carried with it by implication the incidental powers which were indispensable to its proper exercise, and not in conflict with The petition for alimony, being prelim inary and ancillary to the main suit, is pressed by appellee so that it in natural order would come on for disposition before the main suit is reached upon the docket. As it seemed to us necessary, in order to properly dispose of this branch of the case, to examine the whole record, we have determined to dispose of the whole case in one opinion-the our own statutory regulations on the same | appellant in this case the right to appeal from subject. To same effect is Lee v. Lee, 66 that part of the judgment disposing of the How. Pr. 207. 2 Bishop, Mar. Div. & Sep. property, and accords to her every privilege § 725; note to Methvin v. Methvin, 60 Am. granted to other litigants in this court. Upon Dec. 675, citing various authorities. her rests the burden of showing error in the court below. Among all the rights to which she is entitled, there is no one more important to her and the court than that of having the aid of counsel learned in the law and acquainted with her case. Without such aid the court must perform the double and inconsistent functions of court and counsel, or she with no knowledge of the principles, or experience in the practice of the law, must cope with counsel cf ability in a profession which, most of all, requires a familiarity with all knowledge, and most of all offers success to him who knows best how to put in practical use the knowledge he possesses. Without counsel the statute of the state and the rules of the court cannot be complied with. Without them the good order and wellbeing of the court would be disturbed, and it would be deprived of one of the usual, proper, and necessary means of exercising its appellate jurisdiction." The appellant has not disputed our power to grant the alimony and suit money pending proceedings here, yet, as this question is a new and novel one, this being the first application of the kind ever addressed to this court, and as there is conflict in the authorities, we have thought it best to give some expression of opinion and reference to the state of the law upon the subject. This court, under our Constitution, has only ap pellate jurisdiction in cases in equity originating in the circuit court. The question which caused us some difficulty was whether the allowance of alimony in this court would not be an exercise of original, instead of appellate, jurisdiction, and beyond our constitutional powers. In examining the question we ascertain that a number of appellate courts have granted alimony and suit money, while the case was pending in such courts on appeal. In many of these the question of the power to make the order was not discussed. The court assumed the power as a matter of course, and it seems no objection was made thereto. In other cases the relief has been refused upon the merits, the court assuming that it had jurisdiction and power to grant the relief if a proper case had been presented, and in some cases the power is expressly asserted. Vanduzer v. Vanduzer, 70 Iowa, 614; Krause v. Krause, 33 Wis. 354; Wagner v. Wagner, 36 Minn. 239; Chaffee v. Chaffee, 14 Mich. 463; Van Voorhis v. Van Voorhis, 90 Mich. 276; Day v. Day, 84 Iowa, 221; Browne, Divorce & Alimony, p. 248; Zeigenfuss v. Zeigenfuss, 21 Mich. 414; Lake v. Lake, 16 Nev. 363; Weishaupt v. Weishaupt, 27 Wis. 621; Disborough v. Disborough, 51 N. J. Eq. 306. In the case before us the merits of the application are much greater. Here the wife has won in the court of original jurisdiction, and prima facie the merits of the controversy are with her. To grant her alimony and suit money would certainly be in accordance with the principle universally prevalent, that where the fact of marriage is prima facie established, and a suit, especially a suit by the husband, is brought to annul the marriage or the marriage relation, and the husband has means wherewith to live and to litigate, and the wife is destitute, the husband must furnish the wife the means of subsistence while the suit is pending, and to enable her to maintain her defense. We do not believe it would be under such circumstances an exercise of original jurisdiction The question of the jurisdiction of an ap- for us upon a proper showing to grant the pellate court to grant the relief was ex-wife the means of subsistence, while her case pressly raised and decided in Goldsmith v. Goldsmith, 6 Mich. 285. The husband in that case objected to the allowance being made by the appellate court upon the ground that the jurisdiction of such court only authorized it to review and pass upon the decree and proceedings appealed from. The court overruled the objection and held that it had power to award the alimony pending appellate proceedings. The fullest discussion of the subject we have seen is in Lake v. Lake, 17 Nev. 230. In that state the constitutional grant of jurisdiction to the supreme court, in so far as it affects the point under consideration, is identical in terms We have been able to find only two cases with the section of our Constitution regulat-in which appellate courts have refused such ing the jurisdiction of this court. An application for suit money was made in the supreme court, and resisted on the ground that it would be an exercise of original jurisdiction. The court held otherwise and made an allowance for counsel fees and costs, and fortified its position by elaborate argument and citation of authorities. In that case the wife was defeated in the court below, and was the appellant. The gist of the conclusion of the court is stated as follows: "The law gives is pending in this court, but that such an allowance is essential to the proper and impartial administration of justice in the exercise of our appellate jurisdiction. If she has not the means to live and to employ counsel to present her case to the court, so that it may be fully advised as to the merits of her side of the controversy, how can it be said that there is a fair, even handed, impartial administration of justice between her and the appellant, who has abundance of means of support, and to employ able and ingenious counsel to present his case in its most favorable aspects. applications for relief, without reference state. amount for such temporary alimony, and that an allowance of same should be made. In this case an issue was made upon the answer of appellant to the petition for alimony. No testimony has been taken or any affidavits or proofs whatever offered by either party except an affidavit of appellee referred to. No question as to the proper practice as to taking of testimony in such cases has been presented to us, and we therefore do not attempt to decide what practice should be pursued in obtaining and offering evidence in such cases in an appellate court. This evi court had no jurisdiction to make an order for alimony pending appeal; that the jurisdiction invoked by the application was original instead of appellate. This case also decided that the jurisdiction to grant such alimony, even pending appeal, was vested in the court from which the appeal was tak en. As to the jurisdiction being vested in the court from which the appeal was taken, the contrary doctrine is established in this state in the case of State, Shrader, v. Phil. lips, 32 Fla. 403, where this court held that pending an appeal, with supersedeas, the circuit court was without power or jurisdic- We come now to the consideration of the tion to entertain proceedings for alimony merits of the appeal. Several assignments and suit money. The reasons given for the of error are filed, but the only one argued action taken in Hunter v. Hunter, and Reilly is, that the court erred in rendering the final v. Reilly, supra, have no application to this decree in the case. We will not attempt state, and we do not regard them as of great to set out the testimony taken in the case. weight or value in determining the matter. To do so would require much space, time, Therefore if this court has not the power and labor, and not greatly subserve any very to entertain proceedings under such circum- useful purpose. Upon the subject of the stances, no such power is vested in any court, intoxication of the complainant at the time and a great and humane principle of the law of the marriage ceremony, the evidence was would, so far as it relates to cases pending extremely conflicting. There was certainly on appeal, be practically abolished in this testimony which, if believed, proved that the complainant was so much under the inRecurring, then, to the merits of the ap-fluence of intoxicants as to be wholly incapaplication for alimony, the majority of the ble of entering into any contract. court are of the opinion that no alimony dence, bowever, was contradicted by other and counsel fees and suit money can be al- evidence which, if true, showed, if the comlowed on this application, other than court plainant was intoxicated at all, it was to a costs, for the reason that the appellee has not very slight extent and not sufficient to defurnished us with proof of her own necessi¦ prive him of the use of his reasoning faculties for support, as well as the means and abil- ties. Upon this point we cannot say that the ity of the appellant to contribute to such sup- decree of the court was against the weight port during the pendency of the case here, the of evidence. Repeated acts of cohabitation period for which alimony is asked. Neither when the complainant was sober, subsequent has she offered any proof as to the value of to and ratifying the marriage, were proved services of her solicitor in the necessary pro- upon the part of the appellant, and he made ceedings here, or as to what would be reason- no effort whatever to contradict the same. able suit money in this court. They are of The amount of solicitor's fees allowed by the opinion that we cannot take judicial no- the decree was less than was shown to be tice of the value of the sevices of her solicit reasonable and proper by the undisputed or, nor of the amount necessary for suit testimony of members of the bar. The demoney, and that in order to make an allow cree was in all respects in accordance with ance for alimony here we should have other the evidence in the case. As to the law proof than that taken in the circuit court applicable to the facts, it cannot be doubted when a similar application was made to that if the party at the time of entering into that court and granted; that such relief is the contract was so much intoxicated as to not a matter of course, but can only be be non compos mentis, and does not know granted upon proof made here showing the what he is doing, and is for the time decontinuance of the necessities of the wife prived of reason, the marriage is invalid; and also the ability of the husband. but is not invalid if the intoxication is of a less degree than that stated. 1 Bishop, Mar. Div. & Sep. § 607 et seq.; Browne, Divorce & Alimony, p. 197. On the other hand, it is equally well established that a marriage invalid at the time for want of mental capacity, may be ratified and made valid afterwards by any acts or conduct which amount to a recognition of its validity. A lunatic on regaining his reason may affirm a marriage celebrated while he was insane, and this without any new solem The member who prepares this opinion agrees with the other members in declining to allow counsel fees and suit money, but thinks the temporary alimony should have been allowed. The reasons impelling him to this view are that the necessary amount of such alimony was ascertained by a master and approved by the circuit court after the taking of testimony. The petition sets this matter up. The appellant does not allege that there has been any change whatever in the circumstances of either party since the cir-nization. Cole v. Cole, 5 Sneed, 57, 70 Am. cuit court made the order allowing $15 per week temporary alimony. The allowance by the circuit court is alleged to be excess ive, but no reasons are given upon which the allegation is predicated. He thinks that there is sufficient in the petition, answer, and record to show what would be a proper Dec. 275; Sabalot v. Populus, 31 La. Ann. 854; 1 Bishop, Mar. Div. & Sep. §§ 614, 624; Browne, Divorce & Alimony, pp. 206, 207. The appellant, in view of what he calls his unfortunate situation, asks us to take the most favorable view which the law as applied to all the testimony shown by the record will permit to be given his case. This we make him pay dearly for his folly. By have been inclined to do, but have not been his own rash and reckless conduct he has able to reach a different conclusion from placed himself in a position from which we, that announced by us, without doing vio. upon this record, have no power to extricate lence to the law and the testimony. The him. The appellant is ordered to pay both situation of the appellant is indeed a pe- the costs of the application for alimony and culiar one. He is married to a woman the costs of appeal. who, the evidence clearly shows, before her marriage was a public prostitute. The ap pellant was fully acquainted with her and her character and reputation. The large allowance against him for alimony and suit money, and the costs decreed against him, The petition for alimony, counsel fees, and suit money, except as to court costs, is denied. The decrees of the Circuit Court dismissing the bill of complaint and awarding counsel fees against appellant are affirmed. PENNSYLVANIA SUPREME COURT. Borough of DU BOIS, Appt., v. DU BOIS CITY WATERWORKS COM- (176 Pa. 430.) 1. The cancelation of a contract by a municipality for a water supply will not be made by a court of equity merely because of the inadequacy of the supply, for which the water company is not in fault but which is due to the inadequate capacity of the springs which the contract requires the supply to be obtained from. 2. A reformation of a contract for a municipal water supply because of a mutual mistake of the parties as to the adequacy of the stipulated source of supply is within the power of the court under act of April 29, 1874, 834, cl. 3, giving power on a bill filed by any citizen to make such order as may seem just and equitable for the correction of the alleged impurity or deficiency of the water supply. (July 15, 1896.) So long as a contract continues executory, it may not only be impeached for fraud or mistake, but any invalidity which would be a defense at law would, in general, be ground for cancelation in equity. Nace v. Boyer, 30 Pa. 99; Simes v. Everson, 46 Pa. 304. A mistake on one side may be a ground for. rescinding a contract, or for refusing to enforce its specific execution, but it cannot be a ground for altering its terms. Schettiger v. Hopple, 3 Grant, Cas. 55; Adams, Eq. 411; 15 Am. & Eng. Enc. Law, p. 648. The courts are not powerless to give relief in this case. Wilson v. Getty, 57 Pa. 266. "A defective, negligent, and worthless performance is the same as no performance at all.” Miller v. Phillips, 31 Pa. 218. Whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree, which justice or the rights of the par APPEAL by defendants from a decree of ties may require. the Court Common Pleas for Clearfield County canceling a contract for the furnishing of a water supply. Reversed. The borough of Du Bois entered into a contract with the United States Waterworks Company, Limited, by which the company agreed to furnish the borough with the water supply as specified in the contract. This contract was assigned to defendant, the Du Bois City Waterworks Company. The borough filed a bill to have the contract annulled upon the ground that the company had failed to carry out the provisions of its contract. Further facts appear in the opinion. Dull's Appeal, 113 Pa 510; Kay v. Scates, 37 Pa. 31, 78 Am. Dec. 399; Stewart's Appeal, 78 Pa. 88; Martin v. Graves, 5 Allen, 601; 3 Dan. Ch. Pr. & Pl. p. 1961, note 1; Pom. Eq Jur. 2d ed. vol 1, § 221, p. 283, and note 1, also vol. 2, § 870, pp. 1213, 1214; 3 Pom. Eq. Jur. $13.9, pp. 2148, 2149. Mitchell, J., delivered the opinion of the court: The power of a court of equity to compel the cancelation of a contract, though well established, is very exceptional in its character. Its purpose is never to interfere with the freedom of contract, or with proper legal liability, Messrs. W. C. Pentz and George A. even for bad bargains, but only to supplement Jenks, for appellee: The contract in this case is executory. NOTE. As to the forfeiture of the charter of a water company for failure to make proper supply of water, see Capitol City Water Co. v. State, MacDonald (Ala.) 29 L. R. A. 743; and State, Mylrea, v. Janesville Water Power Co. (Wis.) 32 L. R. A. 391. the powers of courts of law where there is exceptional equity of a settled and recognized As to the liability for loss of property by fire on account of deficient water supply, see Howsmon v Trenton Water Co. (Mo.) 23 L. R. A. 146, and note; also Springfield F. & M. Ins. Co. v. Keeseville (N. Y.) 30 L. R. A. 660. fact as to the capacity of the stipulated source of supply. But this mistake was no more the fault of defendants than of plaintiff, and the parties cannot be put back in statu quo. If the defendants have, to their misfortune, made a contract whose full performance is impossible, they may be unable to recover the stipulated rental, either in whole or in part. But this is a matter of defense in an action at law, and affords no ground for the cancelation of the contract. Certainly there is no equity in putting the entire loss arising from a mutual mistake upon one party, with no consideration for the injury to its plant and franchise, and no allowance for the money already expended thereon without fault. The case is pre-eminently one for mutual concession and amicable adjustment on a fair basis, either by reduction of the rental or by enlargement of the permitted source of supply. But, failing this action by the parties themselves, equity will not help one of them to put the whole loss on the other, but will leave them to such remedies as they may have in a court of law. kind. Hence it is never to be exercised except in very clear cases and for definite cause. The causes which will justify it were stated as long ago as Delamater's Estate, 1 Whart. 362, and experience and the amplification of equity powers in sixty years have not furnished any instance of their enlargement. In that case Chief Justice Gibson said: "The grounds on which equity interferes for rescission, are distinctly marked, and every case proper for this branch of its jurisdiction is reducible to a par ticular bead. They are principally fraud, mistake, turpitude of consideration, and circumstances entitling to relief on the principle of quia timet." In Yard v. Patton, 13 Pa. 278, this language was quoted as authoritative, and it was added that each of these causes should be established by positive and definite proof. In Graham v. Pancoast, 30 Pa. 89, it was said by Strong, J.: "Inadequacy of price, improvidence, surprise, and mere hardship, have each been held sufficient to stay the active in terposition of a chancellor. Yet no one of these, nor all combined, furnishes an adequate reason for a judicial rescission of a contract. Reference was made in the court below and For such action something more is demanded, here to the act of April 29, 1874, § 34, cl. 3 -such as fraud, mistake, or illegality." In (Pub. Laws, 94; Brightly's Purd. Dig. [12th Rockafellow v Baker, 41 Pa. 319, 80 Am. Dec. ed.] p. 955, pl. 4). relating to gas and water 624, it was said: "Our interposition is invoked, companies, by which the courts of common Dot to carry out and accomplish what the par- pleas are authorized, on bil filed by any citi ties have begun, but to undo what the parties zen using the water, alleging impurity or defihave accomplished. How narrow the grounds ciency, to compel the water company to correct are upon which a court of equity will interpose the evil complained of, and to make "such for such a purpose, and how cautious and re- order in the premises as may seem just and luctant i's steps will be in that direction, were equitable." The learned judge below was of fully shown in Graham v. Pancoast, 50 Pa. 97, opinion that this remedy did not apply to cases and Nace v. Boyer, Id. 109. Nothing but of contract, but only to water rights acquired fraud or palpable mistake is ground for rescind by eminent domain under the act of 1874, and ing an executed contract.' And in Stephen's it has been argued here by appellees, citing Appeal, 87 Pa. 202, it was said: "No fraud or Lehigh Water Co.'s Appeal, 102 Pa. 515, and mistake, or turpitude of consideration and cir- Freeport Waterworks Co. v. Prager, 129 Pa. cumstances entitling her to relief on the prin. 605, that this section applies only to private ciple of quia timet, are proved. Nothing less citizens and does not include municipal corpothan one of these clearly established would jus- rations. Both these views, however, are errotify the court in ordering the rescission of an neous. What was decided in those cases was executed contract." No case has gone beyond that the exclusive privilege of furnishing wathese; and while we do not say that a wilful ter, given by the act to the first company erectand obstructive refusal to perform a contract, ing works, does not prevail against a city or under circumstances which practically prevent borough building waterworks in its municipal the party aggrieved from entering into another, capacity and under its general powers. In the may not afford ground for equitable cancela-present case the borough is not the builder or tion, yet some such special grounds must ap pear in order to take the case out of the general rule that remedy for mere breach must be sought at law. Tested by these settled principles, there is no case bere at all for the cour's interference. Neither the bill nor the findings of fact under it charge any fault to the defendants. They show a want of strict performance, but they also show that strict performance was impossible, not from any lack of effort on the part of the defendants, but because the contract limits the source of supply to springs on the Du Bois land, and those springs are inadequate to furnish the needed quantity of water. The utmost that is made out by the bill and the evidence is that the contract calls for the performance of an impossibility by reason of a mistake of 34 L. R. A. owner of waterworks, but a mere consumer under contract, and stands upon the same basis as any private citizen in regard thereto. The remedy given by the act is intended to be adequate, and we see no reason why it may not be made so. The whole subject is put under the control of the court in the broadest terms, and, being one which concerns the public interests, may be treated with regard thereto, to the extent necessary, even to the reformation of the contract upon a basis just and equitable to both parties, where, as here, it was made in mutual mistake as to an essential fact, and a remedy for the difficulty may be found without violation of the main intent of both parties in the original instrument. Decree reversed, and bill dismissed, with costs. |