Gray v. Gray , 16 Ala. 649 ( 1849 )

PARSONS, J.

This is an appeal from the Chancery Court of Lowndes county. It appears that Mrs. Gray, by her next friend John M. Cole, filed her bill in chancery for a divorce from her husband Joshua Gray. The chancellor granted the divorce, with costs against the husband. This court reversed the decree in respect of the divorce, but affirmed it as to the costs of the Chancery Court. — Gray v. Gray, 15 Ala. Rep. 779. The register accordingly issued his execution against the husband for the costs, which was returned “no property found;” and the register thereupon issued an execution against Mr. Cole, as next friend of the complainant, for the costs. This last execution was set aside by the chancellor, under an Impression that the register was not authorised to issue it by the circumstances of the case, as just stated; and the present appeal is from the order setting- the execution aside.

The question depends upon the statute of 1826, which is as follows: “ The clerks of the several circuit and county courts, and the justices of the peace in the several countiés in this State, are hereby authorised, whenever any sheriff, coroner or constable, shall return on an execution directed to them, or either of them, that the defendant in said execution has no property in his county, out of which he can make the amount of the costs due on said execution, forthwith to issue execution against the plaintiff in said execution for th'e costs created by the plaintiff in obtaining his judgment and execution; and no costs created by any defendant on the part of the defendant shall be taxed or collected in said execution. — Clay’s Digest, 316, § 23. This statute introduces a new practice at law, if not in equity, in permitting an execution in certain cases against a party, without any judgment against that party. We do not decide the question, whether in general, this statute applies to the courts of chancery. But in the present ease, the execution issued against the next friend of the complainant, and there is no decree or order of the chancellor against him for the costs. Now, if the statute applies to chancery eases at all, there is a reason why it should not apply to such a case as this; because, if the wife had a separate estate, it might be proper to order the costs to be paid out of it, and thus to relieve the next friend. This results from the principles stated by Sir Wm. Scott, in D’Anquillar v. D’Anquillar, 1 Hazzard’s Excl. Rep. 787. He says, “ in general the husband is is bound to defray the wife’s costs, otherwise the wife would be disarmed and denied justice. The husband has, by the law of this country, all the property, and therefore the wife must have the means of self-defence and of subsistence from him; but when she has a separate fortune tho court aiways considers whether such separate means are sufficient for self-defence and self-subsistence.” — See also Wood v. Wood, 2 Paige’s Rep. 108. In such eases, the husband even will be relieved of her costs, and her next friend much more readily; for we could easily cite authorities* if necessary, to show that the eourts are inclined, whenever' they can, to favor the next friends of infants and femes covert, where they have acted in good faith. It is possible,, at least, in any case, that a feme covert may have a separate fortune*. It is probable, under our recent statutes,, that this Will be so generally true, before many years, as to ehaflgé the presumption of law. It may soon be the legal presumption in this State that every feme covert, has a separate estate. Be this as it may, they are already capable of holding separate fortunes, and if. it had been or should be shown in- the present case that Mrs. Gray has an, estate of her own, the chancellor would take the necessary measures to have the costs paid out of it. For this reason.we think that the statute, does not, apply to this case, because we think that no execution for the costs should issue against the next friend, except in pursuance of an order or decree of the chancellor. In such case the statute is not equivalent to. a decree — -whether or not.it is, so. in any chancery case, we do not now decide. The order of the chancellor set* ting aside the execution iá therefore affirmed.