8 Ga. 295 | Ga. | 1850
By the Court.
delivering the opinion.
It is true, that the case of Sedgwick vs. Watkins, 1 Ves. Jr. 49,
We admit the law to be, that the complainant must not only show that the demand will be endangered by the defendant’s going abroad, but must charge, positively, that the defendant is going out of the State, or that he has said so. 6 Rand. R. 188. And this, we think, is substantially done. Had the complainant said, as it is assumed in the argument she did, that she had been informed by others of his threat, the affidavit of this third person should, if practicable, have been filed; but, from any thing which appears to the contrary, the threat may have been made to the complainant herself. At any rate, in the language of the authority, she does charge, positively, that she entertains just fears that he will remove, and that he has said so.
As this last proposition was not insisted on in the argument, I shall consider it as abandoned.
This rigid rule, however, has not been strictly adhered to in This country — even in those States where the Common Law, as in Georgia, has been adopted. Accordingly, we find Chancellor Kent declaring, in Denton vs. Denton, 1 Johns. Ch. R. 365, that “ the allowance of a ne exeat, where the husband threatens to leave the State, and his wife without any support, is essential to justice, and has bepp allowed in such pases,”
In 1813, the Legislature of Georgia passed an Act, “ to authorize the Judges of the Superior Courts to grant writs of ne. exeat, in certain cases therein mentionedand the preamble recites, that “ whereas, great evils have existed, and do yet exist, in this State, in consequence of the law of England, regulating writs of ne exeat, not having provided for cases where the demand, set forth by the complainant is not due” — for remedy'whereof, it is enacted, that “ the Judges of the Superior Courts shall be, and they are thereby authorized, to grant writs of ne exeat,"as well in cases where the debt .or demand is not due, but exists fairly and bona fide in expectancy, at the time of making application, as in cases where the demand is due.” It further provides, that “ in case of joint and several obligors, if any one or more of them are about to remove without the jurisdictional limits of this State, and prp carrying off their property, leaving one or more fellow-obligors, bound with them for the payment of any debt, penalty, or for the delivery of propérty at a certain time, which time has not arrived, such obligor or obligors, who remain, shall have the benefit qf the writ of ne exeat,” Sec. All securities, likewise, are al
Now, it will be borne in mind, that our Statute requires that in cases where partial or conditional divorces are granted, thé Jury shall inquire into the situation of the parties before their intermarriage, and also at the time of the trial; and they shall, by their verdict or decree, make provision out of the property of which the husband may be possessed, for the separate maintenance and sup port of the wife and children, if there be any; which verdict or decree shall bo carried into effect, &c. Prince¡ 187. The bill charges that the defendant has property in possession, of the value of $4,000, and that there are no children ; and the complainant not only makes a case in her bill, which shows that she is entitled to suitable provision for her maintenance, but her affidavit states expressly, that she considers lierself entitled to adequate support out of her husband’s property. Here, then, in contemplation of the Statute of 1813, is “ a bona fide demand, existing in expectancy,” and comes both within the spirit arid letter of the Act. We feel the less hesitancy in coming to this conclusion, not only because it is essential to the ends of justice, but it is warranted by the universal practice which has obtained throughout the State, under this Act.
The Act of 1830 declares, that “ in all cases where persons may thereafter be arrested by. virtue of writs of ne exeat, - they shall be discharged, on their giving bond, with good and sufficient security, either'that they will not depart’ this State, oí for the payment of the eventual condemnation money.” Prince, 468.
It is somewhat inaccurate, therefore, to prescribe bail to be given, as at Common haw, where the condition of the’ recogni
But we apprehend that it is still competent for the defendant to show, as he might do before, that the writ of ne exeat ought not to have been granted. 2 Tuck. Com. 486. Otherwise, writs of ne exeat would often operate very harshly. We do not say that we should undertake to control the discretion of the Circuit Judge, should he hold, as he said he would, that he should retain the writ till the hearing of the divorce, notwithstanding the defendant should, by his answer, deny all the charges in the bill; still, as a matter of legal right, we should be loth to sanction the principle, that the door of justice was barred in this ease, against the privilege of being heard.
Not viewing any of the obstacles, then, to this proceeding, as insurmountable, and taking it for granted, that while Courts will maintain this writ, for the purpose of securing to the wife and offspring provision, in accordance with the rank of the parties and the fortune of the husband, that they will take care, at the same time, that it is not used for oppression and extortion :
We affirm the judgment of the Superior Court.