
    Wright v. Wright.
    An execution cannot legally issno to enforce a judgment or deeree which has been vacated or annulled.
    Where alimony was deereed to the wife during the pendency of a suit for divorce, and tlie suit was dismissed after several installments of the alimony had fallen due and were unpaid: Held, '[ lial tlie dismissal of the suit for divorce annulled the. decree for alimony, and that nicer such dismissal the decree furnished no basis for compulsory process to curry it into execution.
    Where the husband is plaintiff in a suit for divorce, the court may refuse to hear the cause until the alimony due is paúl; and where permanent alimony is given on separation a mensa ct ihoro application must ho made m a reasonable time or the court will not enlorco the payment of arrears ; and where almony is payable annually tho court will noi, as a general rule., enforce arrears of more than one year.
    Where the wife has a separate income, adequate to her maintenance, the husband is not liable for alimony cither under the common or our statute law.
    Where a suit for divorce was disn.is-ed and the husband liad failed to pay tho alimony decreed to the wife during its pendency: iletd, 'that the husband was not bound to pay the alimony, but was bound to pay the debts contracted during tho pendency of the suit by the wife for her support and necessary expenses. (.Note 0.) *
    Appeal from Victoria. I'll a former action between these jiarties for divorce, the appellant liad been ordered to pay the appellee during the pendency of tlie suit for her separate support the sum of two hundred and fifty dollars annually, payable in quarterly installments. Tlie suit was afterwards dismissed, and at the time of its dismissal three of the installments were unpaid. Some months subsequently executions were issued for their collection, and the appellant prayed for an injunction to restrain further proceedings ou said executions. By the decree of tiie District Court the executions were ordered to be, canceled ; an injunction which had been issued to restrain proceedings under the order for alimony was dissolved, and an execution ordered to issue for the whole amount, of alimouy due and unpaid.
    
      I. iV. Mitchell, for appellant,
    argued that an execution could not legally issue without, a judgment, or order equivalent thereto, or to enlorco one that had been vacated or annulled; and that the dismissal of tlie suit, for divorce liad vacated and annulled the decree for alimouy; consequently execution could not issue on it.
    /.'IF. Allen, for appellee.
    The court did not err in refusing tlie injunction, because tlie deeree for alimony was iinal. It vested a right in tlie appellee the moment eacli several installment became duo. It is true it was subject to be altered, amended, or rescinded by the court at any time during the pendency of tlie suit; but such alteration orrescission could not affect installments which liad already become due.
    Alimony is an allowance’made by the court for the subsistence of tlie wife during tile pendency of tlie suit. It is supposed to bo necessary for her subsistence. She maj use it or sko may not. She may choose to support herself by her own labor; but tills does not forfeit her right to the allowance suitable to her condition. It vests in her the moment it becomes due as effectually as tlie judgment of a court can vest a right. Suppose instead of letting it, lay, secured by the judgment of tlie court, as in the present case, slie bad assigned each installment to pay for her support. Would not tlie assignment have been good and valid? and could not the assignee have liad Ills execution even after the determination of the suit? Would bot the various installments becoming due before her death, supposing she liad died before the determination of the suit, have been assets in tlie hands of licr administrator? If such would have been trie law, what distinguishes this case in principle from those? Here the wife, relying on the validity of tlie order of court, contracts debts on a credit on Hie faith of it. Must those debts go unpaid? But we will put a stronger ease : Will nothing short of tlie actual collection of the money make it her’s? If anything short of that will suffice to vest the right in her, what is itr Surely nothing, according' to the reason of the counsel. Does not the court perceive that such an interpretation would render the allowance of alimony nugatory; a mere '‘promise to the ear,' to be broken to the. hope?”' Nothing would be necessary to render it entirely unfruitful but to file a bill of injunction against its collection and keep it pending during the, pendency of the divorce suit. Snell would be the inevitable, practical operation of the view of the case contended for by appellant. (Hart. Dig., art. 8.10 ; 1 McO.)
   IlEMPixiLL, Cb. J.

Tito principal question is whether an execution can legally issue to enforce a judgment or decree which has been, vacated or annulled. To state the proposition is.to answer it. It does not admit of argument or illustration. The foundation of an execution is the judgment of the court or some act or obligation which is in law equivalent thereto; and when this foundation is removed or destroyed the superstructure must fall with it. On the dismissal of 1 he suit the order for alimony had no longer legal subsistence or vitality. The mandate of the Supreme Court had expressly directed that on the contingency which subsequently occurred the order should be set aside. This would without such direction have boon the legal effect of the dismissal of the petition, and consequently this rescinded order "can furnish no basis for process to carry it into execution. It is true that three-quarters of the alimony were unpaid; but whether it was the fault or misfortune of the appellee or fraud of the appellant that payment liad not during' the pendency of the suit been enforced is in any aspect presented by this case wholly immaterial. For whatever may be tire right of the appellee, or whatever" may be the wrong suffered from the appellant in relation to this claim, yet redress cannot he obtained by means of compulsory process upon a reversed and annulled judgment or decree.

The appellee in her answer alleges that during the pendency of the suit she contracted debts for necessaries and for legal services, which are yet unpaid, and which were contracted on the credit of said alimony; and she contends in the argument that the right to the alimony was vested in her by the decree; that if she had assigned the installments for her support the assignee might have enforced payment, and that if she had' died before the determination of the suit the installments due would have been assets in the hands of her administrators, &c.

These propositions, with modifications, might perhaps be sustained, but would confer no right to summary final process to enforce payment of these installments.

Alimony during the piending of the suit is given to the wife for her present support, and the presumption is either that it has been paid accouling to the terms of the decree, or that summary measures will be taken to secure its payment.

Where the husband is plaintiff the court may refuse to hear the cause until tile alimony due is paid, (5 Eccl. R., 435;) and where permanent alimony is given Oil separation, a mensa et ihoro, application must be made within a reasonable time or the court will not enforce the payment of arrears; and where alimony is payable annually the court would not, as a general rule, enforce arrears of more than a year’s standing. (3 Hagg. Ec. R., 322; 5 Eccl. R., 120.) The court will afford prompt relief where its aid is sought, but will not encourage laches in enforcing the claim, as it might well be presumed that some more beneficial arrangement has been made.

But though compulsory process will not issue to enforce the payment of alimony without a judicial decree, or upon one winch has been annulled, yet where alimony is decreed hut not paid the husband is liable for debts contracted for necessaries by the, wife. (Shelf., 649; 3 M. & P. R., 108; 3 Hagg. Ec. R., 322.)

In Hunt v. DeBragniere (5 Bing. R., 550; 15 C. L. R., 535) it is said that no decision lias been cited in which a decree for alimony is a discharge; that it is not the decree for alimony or the deed for separate maintenance which discharges the husband, but the observance of it; and that all the cases show that the alimony must not only he secured, but paid; and that there is-no difference whether the provision he by deed or decree. (Ozard v. Darnford, Selw. N. P., 260; 9 B. Monroe, 299.)

Note 5.—O’Haley v. O’Haley, 31 T., 502.

_ The husband’s liability for necessaries furnished the wife and the foundation for decrees of alimony depend to a great extent on the now antiquated rule of the coqimon law that the wife has no separate property, but that by marriage the whole is vested in the husband. Where the wife has a separate income adequate to her maintenance, the husband is not liable for alimony, either under the common or our statute law.

Under onr laws the wife’s property does not vest in the husband, but it is umler his management, and he ordinarily receives the rents and profits as well of the separate estate of the wife as of the community property, and lie is the more hound to discharge debts contracted for her support and necessary expenses on failure to pay the alimony decreed by the court.

The decree, so far as it authorizes the cancellation of the executions, is without error, but so far as it dissolves the injunction restraining'further proceedings on the order for alimony made at the Spring Term, 1848, and authorizes execution to issue for the amount of the alimony, it is erroneous. And it is therefore ordered, adjudged, and decreed that the decree, so far as it cancels the executions originally issued, be confirmed, and that in all its other directions and orders it be reversed, and the injunction against farther proceedings in the said order for alimony be and the same is hereby made perpetual.

Ordered accordingly.  