
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1813.
    Jennet Prather, by her next friend, v. John Clarke.
    In a case of alimony in equity, the husband had been committed by attachment, for not performing the decree. To an action brought in the name of the wife against the sheriff, for a permissive escape of the husband, evidence that the husband had complied with the decree is inadmissible ; nor is it a sufficient defence to show that the husband was • permitted to escape, at the request of the wife. The wife may, by ‘pro--'cliein ami, support such action in her own name.
    Tried before Judge Brevard.
    ■ This was a special action on the case against John Clarhe, as sheriff of Laurens district, to recover damages for permitting Wil. liam Prather, who was iil'the custody of the sheriff, by virtue of an attachment, issued from the Court of Equity, for a contempt, in not giving security to perform the decree of the said court, in the case of Jennet Prather, by her next friend, Jacob Miller, against the said William Prather, to escape and go at large.
    By this decree, the complainant,' Mrs. Prather, by her next friend, Jacob Miller, had recovered one hundred dollars per annum, during the teim that they should live separate and apart ;• or until he should agree to cohabit with her, and treat her as became a man to treat Ms wife, ¿j~c. The defendant offered evidence to prove that William Prather had complied with the decree, which was refused .by the judge. The defendant offered, and examined much evidence, to shew that he permitted the said William Prather to go at large in the gaol yard, and gave him great liberties,'' and an easy opportunity to escape, at the request, and by the permission of the said Mrs. Prather. The cause went to the jury, and they found a verdict for the plaintiff for five hundred dollars. The defendant moved in arrest of judgment, and for a new trial.
    Creswel, for the motion. Farrow, contra.
    
   Smith, J.

The defendant has assigned no reasons in his brief, why the judgment should be arrested. It was urged, in the argument, that this woman being a feme-covert, could not maintain the action by her next friend., If that argument were to prevail, there would be a failure of justice, which our laws abhor ; as there would be no means of enforcing a decree of a .wife against her husband for alimony. The Court of Equity could order a refractory husband to be attached, and the sheriff would let him go, if he thought proper; then if the wife could not sue by her next friend, who could ? The law provides no other course. And upon this' occasion, I would adopt the course of a very learned judge, If there is no precedent, I will make one.”

I think the judge was perfectly right, in refusing to hear evidence, to prove the decree had been complied with by Prather, until he was attached. It would have been a great want of respect for the Court of Equity, and an improper interference with their powers. Nor are we to presume that that court would have issued its attachment, to enforce a compliance with a decree, that bad already been complied with. The remainder of this case, I think, consisted of facts proper for the consideration of a jury, and I am satisfied with what they have found. I am, therefore, against the motion.

Cor cock, Bay, Grimke, and Brevard, Js., concurred.  