Opinion
(May Term, 1796.)
In a bill by a wife for alimony, it is most proper that the husband be held to bail at first; but if that has not been done, upon proper affidavits by the wife, the husband's property may be sequestered until he gives security for the performance of the decree.
A BILL for alimony was filed by the wife, and no security had been required of the husband. The bill had been served on him, and now an affidavit was made on the part of the wife, setting forth divers circumstances tending to show that he was preparing to remove himself and his property; and it was moved on her behalf that some person be appointed to take into possession so much of the property as would be sufficient to satisfy the decree the court would probably make, to be released on his giving security to perform the decree. This was urged upon the probability there was, as made out by the affidavit, that should the court only issue process to arrest him and hold him to bail, that he would keep out of the way till he had disposed of his property, and then abscond.
E contra, It was argued that the act empowers the court to require new security, or to issue a ne exeat, but not to interfere with his property, which is not to be touched until after the plaintiff hath established her claim and obtained a decree.
The plaintiff's counsel said that this was no new action; that the same had been done at Halifax, in Barrow v. Barrow, some years ago, where the Court ordered the property to be sequestered under that part of the act of 1782, ch. 11, where it is provided that during the dependence of the suit, at any time, the Court may require further security from a defendant, or, in failure thereof, make use of such personal process as was formerly used by the court of chancery held in this State, and incident to the chancery jurisdiction, and shall in all cases have power to order such process to enforce their sentences or decrees as have usually belonged to courts of chancery.
It would have been much better had he been held to bail at first. The answer denies, but faintly, some of the material charges in the bill. It is possible she may be entitled to a decree. The affidavit shows he is probably devising means to defeat the decree when it shall be given, and that he is about to abscond. Shall we sit still and see him take his measures to defeat the decree, if any should be given, and not take any steps to prevent it? The Court will surely do something to secure the complainant the benefit of any decree that may hereafter be given in her favor. The common process of a ne exeat or capias to arrest and hold to bail, it is said, and indeed it is very probable, will not answer the purpose. Should his property be seized under the order moved for, he may be restored to the possession of it again by giving security to perform the decree. All the difference between this sequestration and that used in the English courts is that this is more speedy than theirs, where there must first be a sergeant at arms, and a return, etc., a practice not always competent here to effect the purpose of justice, because of our local situation. The practice of this Court was decided to be according to the present motion, two or three years ago at Halifax, in Barrow v. Barrow, by ASHE and WILLIAMS, JJ. They knew what the practice was in our court of chancery before the Revolution, and probably grounded that order upon the clause cited from the act of 1782. We think therefore, that upon the strength of that precedent the present motion should be allowed.
The Court then inquired into the amount of the defendant's fortune, and ordered him to give security for the performance of the decree, in the sum of £ 1,000, and, until he did this, that his property to that amount should be sequestered by a person named by them for that purpose, and ordered a writ to issue accordingly.
NOTE — Aliter where there is only a suggestion that the husband is wasting his property. Spiller v. Spiller, post, 482.