
    Columbia, April Term, 1813.
    Jennet Prather, by her next Friend, vs. John Clarke.
    Creswel, for the Motion,
    
    Farrow, Contra.
    
    Tried before J udge Brevard.
    
    This was a special action on the case against John Clarke, as sheriff of Laurens district, to recover 7 7 damages for permitting William Prather, who was . , . „ , m the custody of the sheriff, by virtue of an attachment, issued from the Court of Equity, fora 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 Wil-Ham Prather, to escape and go at large.
    Ia a case ?f alimony in equity 9 the husband had been com* by forming Toanac-* brought in the name of the wife sheriff, ,1& ^pe^ofthe evidence husband the d?-cree is inadmissi-is it as"®. dt®‘ band was permitted to escape, at the request of the wife. The wife may, by proehein ami, support such action in her own name.
    By this decree, the complainant, Mrs. Prather by her next friend, J. Miller, had recovered one hundred dollars per annum, during the term 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 his wife, &e. The defendant offered evidence to prove that William Prather had complied with the decree, which was refused by the L x judge. The defendant offered; and examined much evidence to shew that he permitted the said Wil-Ham Prather to g‘o at large in the gaol yard, and gave him great liberties, and an easy opportunity escaPe> ^ie re<luesh and ty the permission of the said Mrs. Prather. The cause went to the jury, an¿ tiiey found a verdict for the plaintiff for five hundred dollars. The defendant moved in arrest of judgment, and for a new trial.
   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 inforce a compliance with a decree that had already been complied with. The remainder of this ease 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.

Justices Colcock, Bay, Grim ice, and Brevard concurred.  