Prather v. Clarke

5 S.C.L. 393

• Court: Supreme Court of South Carolina
• Decided: April 15, 1813
• Status: Published

Opinion

Smith, J.

The defendant has assigned no reasons in his brief, why the judgment should be arrested. It was urged, in the argument, that this woman being a feme-covert, could not maintain the action by her next friend., If that argument were to prevail, there would be a failure of justice, which our laws abhor ; as there would be no means of enforcing a decree of a .wife against her husband for alimony. The Court of Equity could order a refractory husband to be attached, and the sheriff would let him go, if he thought proper; then if the wife could not sue by her next friend, who could ? The law provides no other course. And upon this' occasion, I would adopt the course of a very learned judge, “ If there is no precedent, I will make one.”

I think the judge was perfectly right, in refusing to hear evidence, to prove the decree had been complied with by Prather, until he was attached. It would have been a great want of respect for the Court of Equity, and an improper interference with their powers. Nor are we to presume that that court would have issued its attachment, to enforce a compliance with a decree, that bad already been complied with. The remainder of this case, I think, consisted of facts proper for the consideration of a jury, and I am satisfied with what they have found. I am, therefore, against the motion.

Cor cock, Bay, Grimke, and Brevard, Js., concurred.