
    Jennet Prather by her next friend, vs. William Prather.
    case w
    
      Laurens, Washington-District.
    
    Heard by Chancellor Desaussure.
    This court lias jurisdiction to give relief, and to allow alimony to wives, in cases of improper severity by husbands. Demurrer overruled, and the husband ordered to answer. And on the merits of the case, the court made an allowance of alimony, proportioned to the husband’s fortune, to be payed the wife annually, till the husband would receive the wife home, and treat her kindly. — An infant child ordered to be left with the mother. — The other children to be under the care of the father. — The husband to give security.
    The bill was filed in this case, by a wife, who lived separate from her husband, to recover alimony, on the ground of ill usage, and being turned away by her husband. The defendant demurred to the hill. The case came to a hearing, and the judge pronounced the fell owing decree:
    FEB’Y. 1809.
    
      This is a bill filed by Jennett Prather against her husband, alleging that she is his lawful wife, by whom ho has three children living; and that she has demeaned herself as a virtuous, prudent wife, by whose industry and economy united with his, a comfortable property has been accumulated, sufficient for their decent support. That the said William Prather has lately, without any default or misbehaviour on her part, used her extremely ill, and turned her out of doors, without any provision, so that site is absolutely dependant for subsistence on her relations. That the said William Prather hath since contracted a second pretended marriage with another woman, whom he bath taken homo, and with whom lie lives in open adultery. That the said William Prather debars the complainant of the sight of her children, and threatens her life, if she should be found in the company of her children: and that the children are very ill used by the adultress, who lives with him. The bill also alleges that William Prather is about to remove from' the state, with his property, and to leave the complainant destitute.— She prays a separate maintenance, and that the two sons of the complainant and defendant, may be taken from the defendant, and placed out apprentice, so that complainant may have access to them : and’that the daughter may be taken from the custody of the father, and delivered to the caro and custody of the mother: and that a lie exeat may issue against defendant.
    This bill is supported- by an affidavit of James Hannah, who swears that lie verily believes William Prather is about to remove himself and property from the state, and that William Prather is worth property to the amount of g2500.‘ On this bill and affidavit, one of the judges' or this court: issued a nc exeat against William Prather, and ordered security to be taken in the sum of g 1000. To this bill the defendant had filed a general demurrer, alleging for rause, that this court has no jurisdiction in such case, and cannot interpose its authority to give any relief. — - The demurrer has been argued, and I am now to give the judgment of the court thereon. I have considered this case with all the attention in my power. The dc-murrcr being founded on the bill itself, necessarily admits the truth of the facts contained in the bill. This bill makes a very shocking case, outrageous to humanity, and disgraceful to civil society. The question then arises, is there no remedy for such enormous evils ? and if there is, where is it to be had ? The ecclesiastical courts arc the tribunals to whom this delicate trust is committed, in the country from whence we have borrowed our jurisprudence : though in particular cases the court of equity has interposed to give relief, as shall be more particularly noticed hereafter. But there are no ecclesiastical courts in this country, which can give relief. It is equally dear, that the courts of law cannot give any relief. The nature and constitution of those courts, and their forms of proceeding, render it impossible for them to interfere in such cases. We are brought then to this conclusion, either that these gross injuries must pass without redress, or this court must interpose and give relief. It is shocking to think that such conduct, so inhuman in itself, so injurious to innocent and helpless women, and so mis-cliicvous to society, should pass unheeded and unchecked in a civilised country. It is the boast of our jurispru-deuce, that for every wrong there is a remedy, and for every injustice an adequate and salutary redress. But this would be a vain and empty boast, if foi* such a case as this there wras no remedy. But it is said that however this may be lamented, tisis court has no power to interfere. Let us examine this as fully as the magnitude of the question deserves. It is said by defendant’s counsel, that the jurisdiction in such cases is confined to the ecclesiastical courts, which alone have power to grant a divorce a mcn-_ sa et thoro, or to proceed against the husband propter ssevitiam; and as incident thereto, possesses power to allow alimony to the wife: and that the court cannot interfere. And the counsel refers on the case of Ball vs. Montgomery, 2 Ycz. jun. 195. Lord Loughborough says, that ho did not recollect that there were such cases as were cited to him from Vernon; and that it is contrary to the established doctrine that a married woman should boa plaintiff in a suit in equity for a separate main-tcnancc, and that he (lord Lougliboí’ouglf) considered ib 110W the settled law, that no court, not even the ecclesiastical court, has any original jurisdiction to give a wife a separate maintenance: that it is always incidental to some other matter, that she becomes entitled to a separate maintenance. That if she applies to the court of equity upon a supplicavit for security of the peace against her husband, and it is necessary that she should live apart, as incidental to that, the chancellor will allow separate maintenance. And so in the ecclesiastical court, if it is necessary for a divorce a mensa et thoro propter sisvitiam. The counsel for defendant also relies on the cases therein cited of Head and Head, 5 Atk. 547", whore lord Ilardwicke is made to say, that he could find no decree to compel a husband to pay a separate maintenance to his wife,unless on an agreement between them, and even then unwillingly. See also 1 Fonbl. 103, also in the case of Alexander vs. M'Cullough, decided by lord Thur-lough, when the husband used the wife ill. Yet the chancellor refused to grant the wife any part of her own property without the consent of her husband. Cited in second Ycz. jun. 192. These are great names undoubtedly, and the authority of these cases ought not to be shaken on slight grounds. Baton the other hand, we find by the text of 1 Fonbl. 94, “ That a wife may have a separate estate from her husband, as by agreement, or by decree for ill usage, or alimony.” The writer of that text was a profound lawyer, who seldom lays down a position which is not supported by the authority of adjudged cases, or of acknowledged principles. Accordingly, we find by reference to the cases cited in support of the above position 1 vol. p. 104, 105, that there have been adjudged cases in England where the court of chancery has decreed alimony to the wile. Most of them indeed are cases decided by commissioners having express authority delegated to them, for that purpose, during the troublessome of them arc cases of agreement, and some of them arc cases where proceedings have been had against the husband in the, ecclesiastical courts, propter sfcvitiam. But there, are •'rases of decrees ;n equity in favor of the wife, without ■any of those circumstances, merely on the ground of ill usage or desertion of the wife by the husband, where there was no divorce, and no agreement to separate — • 1 Fonbl. 104, 5. 1 Chan. Rep. 24, Lasbrook vs. Tyler. 2 Ycrn. 752, Williams vs. Callar. 2 Atk. 96, Watkens vs. Watkens. Thus it appears that lord Hardwickc and lord Loughborough, as the latter acknowledged, had forgotten these cases, when they asserted that there were no cases to compel a husband to pay a separate maintenance to his wife, unless upon an agreement between them. It might he sufficient for me to say, that as there have been cases on both sides of the question, even in England, where the refusal of the court of equity to interfere would not occasion a total failure of justice, I should feel myself at liberty to select those cases for my .guide, which applied to the circumstances of this country, and would best promote the purposes of justice, which it cannot be denied would be done by the adoption in this case, of those instances of interference by the court of equity j but in fact the very words of lord Loughborough, cited by defendant’s counsel, from 2 Ycz. jun. 195, shews-that if the wife applies to the court of equity upon a sup-plicavit for security of the peace against her husband, and it is necessary she should live apart, as incidental to that, the chancellor will allow her a separate maintenance.— Now what isstated in complainant’s bill ? Ill usage, turning out of doors, threats against her life. And is not this ground for granting a supplieavit? it surely is, and though tiie bill does not directly apply for that remedy, it makes a case which requires it; and the court will grant a sup-plicavit, which is sometimes granted on information to the court of ill behaviour. See 2 Com. 712. 2 Ventr. 344: and then as lord Loughborough says, as incident thereto, decree a separate maintenance, when the case is properly made out. lam not, however, left to the disagreeable necessity of deciding on these grounds alone. The subject has been discussed in this country, and the court of equity has decreed in two cases, that the wife should have a separate estate from her husband, in the ..case of ill usage, and a consequent separation or desertion by the lmsband, though no agreement for a separate' maintenance and no divorce. And this, from the neces-s^y 0f ^¡e case, and to redress an injury not otherwise remediable.' I allude to several cases which were decided in this court some years since, expressly on the ground that no other tribunal could give redress, and that it would be unseemly and highly mischievous if this coux*t did not interfere. It is true that in some of those cases the wife carried a considerable property before marriage : in this case it is not alleged that she had any property before marriage; only that by her prudence and economy she aided in acquiring and saving what has been made in the family: and tiie demurrer admits this allegation. It is certain that the case of a wife carrying a large property to her husband, strengthens the claim to a separate maintenance, in case of ill usage, and consequent separation. But it does not strike me that her not doing so, debars her of a claim, She acquires by her marriage, in return for the comforts she brings, the right to maintenance and support,,and to a participation in the enjoyment of her husband’s property, according to -his degree and situation in life, while she demeans herself correctly; and this right she may exercise in an irregular, unsettled, vexatious manner, by running in debt for necessaries, upon his deserting her; which he would be compelled to pay. But this is a very uncertain method, and full of inconvenience and productive of constant litigation. Few will trust a woman under such circumstances, when they are sure- of not being paid without suits, and the measure is entirely uncertain. I do therefore think that where a husband uses his wife ill, and turns her off unprovided without just cause, she may, on the authority of the cases best applicable to our country, claim the protection of this court, and have relief by a separate maintenance. I am an enemy to innovation, unless well considered and founded on plain utility, and I should deprecate the assumption of unwarrantable powers. But I feel it would be my duty to give relief in all cases to which the powers of this court c-ould be made to apply, when no other adequate relief can be had.
    
      I find in the enumeration of the sources of jurisdiction to this court, made even by the best common law writers, the following are stated: The want of a more specific remedy than can be obtained in the courts of law, gives a concurrent jurisdiction to a court of equity in a great variety of cases, as in executory agreements. A court of equity will compel them to be carried into strict execution, (unless where it is improper or impossible) instead of giving damages for nonperformance. So too in questions that may be tried at law in a great multiplicity of actions. A court of equity assumes a jurisdiction to prevent the expense and vexation of endless litigation and suits. Now if the court of equity has concurrent jurisdiction with the courts of law, merely because it can give more ample or complete relief with ■ less litigation, surely it follows that it will be justifiable to interfere where the courts of law can give no relief at all, as is acknowledged in the case under consideration. And the act of assembly itself, which declares that “ Suits in equity shall not be sustained in any case where plain and adequate relief can be had at common law,” does very clearly import that suits in equity may be sustained in all cases where such remedy cannot be bad at law $ and upon that point there is no difference of opinion. Unless this court Interferes, Ihe woman is remediless. With respect to the children, I do not feel myself at liberty to take them out of the care and custody of the lather. Ho is the natural guardian, invested by God and the law of the country, with reasonable power over them. Unless therefore his paternal power has been monstrously and cruelly abused, this court would be very cautious of interfering in the exercise of it. It will be time enough for the court to provide a remedy when such a case occurs.
    No allegations of extreme cruelty to the children are made in the bill under consideration — But the mother has her rights also. She lias a right to the comfort of her children’s society occasionally ; and the court will protect her in the enjoyment of it. In order to give effect to the principles herein expressed, I do hereby authorize the complainant*» solicitor to amend his bill by adding a prochcm amic, and by adding a prayci* for u supplicavit; upon which, and the bill being supported by an affidavit, the court awards a supplicavit, commanding the sheriff to take surety of the peace from the defendant William Prather towards his wife in $ 1000. And it is ordered and decreed, that the demurrer filed by the defendant he overruled, ,and that the defendant be directed to answer over fully to the complainant’s bill. And that with respect to the children, the complainant Jennet Prather bo pennitted by the husband to have access to her children at all reasonable times, without peril to herself ; and that the children he permitted to visit hep occasionally.
    With respect to the ne exeat, the defendant’s counsel has shown some grbunds to doubt the power of the court of granting it in this case. The bulk of the cases do certainly say that the court will not grant it, unless complainant shews the debts demanded against defendant to be certain, and not on a contingency. And more explicitly that on a suit in the ecclesiastical court, by the wife for alimony, before decree, this court cannot grant a writ of ne exeat regno against the husband. 2 Co-myns 655, 65F. 1 Atk. 521. 1 Vesey, jun. 94. ibid. 49», Yet in speaking of the process of this court, an able writer says, that “ For the purpose of preserving property in dispute pending a suit, or to prevent evasion of justice, the court either makes a special order ou the subject, or issues a provisional writ, as the writ of nc exeat, &c.” Mitford 46 — And in its origin it was applied to many cases besides debt — See Comyns 655. And it was once, granted from compassion to a wife who sued for alimony-in the spiritual court — 'Comyns 656. 2 Atk. 210. Upon the whole, I think the weight of authority is against the writ in such cases; and if the application were now making to me de novo for the writ, I have doubts if I should feel myself authorized to grant it. But the order has been made by proper authority, and the application is to rescind it; which application is made by a man who ad-smits by his demurrer that he lias used his wife cruelly without cause-, and turned her out of doors without provision, and lias taken home to Itis house a worthless wo* man, who usurps the place of the legitimate wife, and abuses her children; and that he threatens the life of his Wife, and is about to remove himself and property into foreign parts. Under these circumstances Í will not-sanction the defendant’s evasion of justice, by rescinding the order for the ne exeat. If the defendant wishes to be released from the restraint of the ne exeat, let him give good security in a bond to the complainant in jg 1000, to abide by and comply with the ultimate decree of the court,* and then the writ of ne exeat shall he discharged.
    The defendant then put in the following answer:
    The defendant’s answer admits his marriage with the said Jennet Prather, and that during the time of their living together as man and wife, she bore five children, their names Ruth, John, Charles, Margaret and Ann* Whether they are the fruits of their union is rendered uncertain by particular acts of complainant’s incontinence with defendant’s own knowledge; and states that in consequence of surprizing her one night in bed with her paramour, he had, during the latter part of the time they lived together, deserted her bed.
    Defendant states that her conduct, instead of being dutiful, affectionate ami careful, was the reverse, abusing him, sometimes assaulting him, becoming unfaithful to his bed, and wantonly wasting his property. That for some instances of this conduct he admits he may have chastised her, but for this he has been tried, convicted, sentenced and punished, in a court of law.
    Defendant denies that lie turned complainant out of doors pennylcss and dependent on the compassion of her friends, but states that wishing on account of her improper conduct to live apart from her, he proposed a separation and division of property; this she refused. lie then proposed making a sufficient deposit in the state bank, and securing the interest to her for life for a support: This also was rejected. Ho lastly proposed articles of separation, which were agreed to. His property then and on that account was appraised, and amounted by' said* appraisement to S1740, of which the one fifth (amounting to g348) was allotted to her, a part of which she chose to receive in a bed and other articles, the rest in notes. (An exhibit of these articles of separation and this division of property making part of the answer is shown therewith and marked A.) Complainant then went to Georgia, and after the notes became due, returned and collected some: As to the rest she gave up the notes to the makers and took others payable to herself in lieu of them.
    Defendant states that complainant lives with Jacob Miller, and continually harrasscs him with suits for maintenance before magistrates, from whose decisions in Such small sums there is no appeal.
    Defendant to that part of the bill reciting a second marriage demurs, because if true, living the former wife, it would be felony.
    Defendant acknowledges that having heard complainant intended stealing Iter children, and also on account of the lessons of disobedience she inculcated when with them, he forbade her seeing them, but denies threatening her life if found with them.
    Defendant’s property, according to the abovemen-tioned appraisement, amounted to $ IT40, from which deducting the one fifth delivered to complainant, there remains a balance of §1392, with which to maintain her children and answer the expenses of the suits She is continually instituting against Min.
    Defendant admits as true such matter contained iu the bill as is not answered, confessed, avoided, or traversed, in his answer, and prays that the bill may be dismissed and his costs granted him.
    The cause was heard before judge Thompson ; who after hearing the evidence and the counsel, delivered the following decree:
    This bill was filed by the complainant Jennet Prather, against her husband William Prather, for the purpose of compelling him to allow a certain stun of money sufficient for support during their living in a state of separation. It appears from the testimony adduced on tills occasion, that the parties-hud been married in due Iona of law, and had lived together as man and wife for ten or twelve years without any apparent discord, until the defendant had by his dissolute conduct excited the jealousies of his wife, and caused her extreme distress and wretchedness, to which she sometimes gave vent by complaint and scolding. These irritations, accompanied by his preference of another woman, induced him on several occasions to use severity towards her, and ultimately led to a final separation.
    The court is here relieved from the necessity of making any observations relative to its jurisdiction in a case of this kind, inasmuch as a demurrer upon that subject bad previously been overruled, and an answer substituted, which placed it for trial on its intrinsic merits alene. The court cannot but admit that it feels itself exonerated from some difficulties on that occasion, on account of the novelty of .suits of that kind in this country. This being- then the statement of the case, it remains only to he inquired, whether from the circumstances of Hie parties, and the evidence introduced, the complainant be entitled to recovery. James Hanna, who was brought forward as a witness in behalf of the complainant, swears that William Prather, the defendant, told the witness ho had dismissed his wife, and that she should never live with him again. This testimony is confirmed by Mr. John M’Kelvey, who testifies to the same fact. It further appears from the testimony of Mrs. Rodgers, that he refused suffering Mrs. Prather to sco her children, swearing’ that she should never come to his house for that purpose. It is further deposed by Mr. M’Kelvey, that he saw stripes as if of a switch on her 5 that she said that her husband had wbipt her, which he acknowledged he had done, and assigned as a cause therefor, that she had spoiled a run of whiskey, the duties of making which he sometimes assigned to her. It has been further proved, that ho told his wife of the licentious habits he was involved in, and the more to exasperate her, told her of his lewd intercourse with ether women. There have been a number of witnesses introduced with respect to the character and conduct of the complainant, all of whom, as well those in her favor as those on the behalf of the do fondant, concur in saying that she is a woman who has always conducted herself well, that she is a prudent, discreet, virtuous woman, and it has been testified that the defendant owned her to be such by several declarations, wherein lie has said, that he had no fault under heavens to find with her but her tongue. With this view of the case it is impossible but the court must conceive that the complainant is entitled to part of the prayer of her hill, that is to say, that part which relates to flier alimony. "With respect to that part of the prayer relating to compelling defendant to surrender up to the complainant her infant daughter, the court is apprised that it is treading new and dangerous grounds, but- feels a consolation in the reflection that if it errs there is a tribunal wherein the error can be redressed.
   The court therefore orders and decrees, that the defendant do surrender to the complainant the infant female prayed for in the bill. It is further ordered and decreed, that the complainant do recover of the defendant 1 he sum, of one hundred dollars per annum, during the term that they shall live separate and apart, or until he shall agree to cohabit with her, and treat her as becomes a man to treat his wife. The said sum of one hundred dollars per annum to he vested in a trustee for the benefit and support of the complainant, and that the defendant do pay the costs of this suit. It is further ordered that the defendant do give sufficient security to perform this decree, upon doing which, the writ of ne exeat to be dissolved,.  