The opinion of the court was delivered by
Thompson, J.— When an issue to try the facts asserted and denied in the libel and answer was prayed by the libellant, it was certainly proper for the court to direct the form of the issue or issues, and to require the other party to join therein. We think those adopted were well suited to the facts alleged and denied, aud such as the respondent could not refuse to join in.
It was not for her to determine, that the bill and answer formed a proper issue, and it is enough for us to know that those adopted gave her a fair and full opportunity to prove all the facts of her case. No doubt a trial before a jury might be had on the issue framed by the libel and answer, but in such case notice of special matter intended to be given in evidence might be required by either party.
It is much better, however, that the issues should be special at first. That the issue is to be something other than that resulting from the libel and answer, is implied by the act itself. The facts that will constitute the matter in dispute cannot be known until the answer to the libel is in, “ then if either party,” says the ac*235t, shall desire any matter of fact that is affirmed by one and denied by the other, to be tried by a jury, an issue shall be framed so that the same shall be tried accordingly.” The act does not say that the parties shall, on request for a trial by jury, proceed to try on the issue made by the libel and answer. We need not enlarge on this, for we think it is too plain to admit of doubt that no error was committed in ordering the issues as they appear, and in requiring the respondent to join in them.
It would be a somewhat singular practice to reverse a decree in divorce, after a verdict of a jury, for a matter entirely collateral to the issue, such as "an alleged insufficiency of an allowance of alimony ad litem.” It is undoubtedly the duty of the court to make a proper allowance to the wife, if she be not herself of sufficient ability, to enable her to maintain or defend her suit, having regard to the ability of her husband; and it never fails to do so.
But this is entirely within the discretion of the court, both as to amount and duration, and not subject to review. And so is the act of ordering the case for trial, against the objection that the allowance has not been paid. The remedy for a failure in this particular is by attachment. The aggrieved party must always address him or herself to the appropriate remedy, if they expect to be aided by courts. The complaint that the court suspended the allowance ordered, pendente lite, on the 15th of March 1865, is a matter we cannot notice on error. It has no foundation in fact, however. No order existed at the time for an allowance. The period had elapsed, embraced by the former order, and the amount paid; but not adverting to this, the court declared the allowance suspended, being of opinion that no further sum ought to be required to be paid by the libellant, owing to the delays and backwardness of the respondent to join issue and go to trial. We think the court was right in its conclusion as to this ; but if we did not think so, we are of opinion it was so much a matter in the discretion of the court, that we could not correct it.
Seeing nothing to impeach the proceedings, the decree is affirmed at the costs of the appellant.