Anonymous, 2 N.C. 397, 1 Hayw. 397 (1796)

May 1796 · North Carolina Superior Court

2 N.C. 397, 1 Hayw. 397

Anonymous.

lii a bill by a wife for Alimony.it is most proper that the husband be held .o bail at first ; but if that has not been done, upon proper affidavits by the wife, tbe husband’s properly may be sequestered until he gives security forthe performance of the decree.

A bill for Alimony was filed by the wife, and no security had been required of the husband. The bill liad been served on him, and now an affidavit was made on the pr-n of the wife,'setting forth divers circumstances, tending to shew that he was preparing to remove him« self anti bis property ; and it was moved on her behalf, that sume person be appointed to take into possession so mim it 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 hy the affidavit, that should 'he court only issue procos- arrest him and hold him to bail, that he would k--cp a-the. way til! he hid disposed oí'his *,ropers y, a d 'lieu abscond. And the Plaintiff's counsel scab that this was uo new motion, thu> ihe same had been done at Ebdfax, in tiie case of Barrow \. Barrow, some years -.go, where the court ordered th*1 prop* rty to he sequestond under that parí oí the. -art <¡f -J782, ch. 11, where it is provided, that during the d* pond'-ncc oí'tim suit, at any time, the, court may i . quire further security from a Defendant, in failure thereof, make use of such personal process was formerly used by the court, of ehanceiy h* Id in this State, and incident to the. chancery jurisdiction ; and shall in all cases have power to order such process to enforce (heir sentences or decrees, as have usually belonged to courts of chancery.

E contra■

It waé 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. This court cannot issue, process to take away a man’s property but in cases where a decree is to be satisfied. Should the property of the Defendant be now seized and taken out of his possession, after continuing in the bawls of tins sequestrators for some time, it may appear upon the hearing of this cause, that she is not entitled to any decree. — and will the court upon the. mere probability that she may obtain a decree, proceed to seize his property as if she had already obtained it? No man will be safe under such a practice, for in every case of a suit for alimony, the wife may make such an affidavit, and cause the husband to bo harassed by a seizure of his property, upon a Suggestion of his intending to abscond with bis property.

Per curiam

It would have much better bad he been In Id to bail -,-t first. The ns'.wr denies, but faintly. some of the material charge- ¡a tin--’bill. It, is possible she may be entitled to a decree. The affidavit shows |lC |s 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 (lie decree, if any should he 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 ue 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, h« may be. restored to the possession of it again, by giving security to perform the decree. All the- difference bel ween this sequestration and shat 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, &C. a practice not always competent here to effect the purposes 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 the case of Barrow and Barrow. by Judge Asms and Judge Wit,? 3.IAMS. They kne.vv what the prarfire 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, die .present motion should be allowed. The court then enquired into the amount of the Defendant's fortune, and ordered him to give security for the performance of the decree, in the sum of ¡61000 — and until he. did this., that his property to that amount should he sequestered by a per-on named by thorn for that purpose, and ordered a writ to issue accordingly.

NoTF..- — dlili:r where there is only a suggestion, that the husband is wasting- his property. Spiller v. Spiller, post 482.