Huldah A. Barber, by her next friend George Cronkhite, Pl'ff in Error, vs. Hiram Barber, Def't in Error

Huldah A. Barber, by her next friend George Cronkhite, Pl’ff in Error, vs. Hiram Barber, Def’t in Error. A divorce, a mensa et thoro, does not destroy the relation of marriage, so as to enable the wife thus divorced, to maintain an action against her husband. A divorce of this character only suspends temporarily the relationship, but can confer upon neither, any new rights, as separate and distinct from the marital rclatiqpi, which still exists notwithstanding the partial divorce. The suing by a wife of her husband, by her next friend, she. standing in the relation before mentioned,, can in no sense obviate the objec-s lion. A decree for alimony to the wife in another .State, is not such a judgment as that an action in debt can be maintained, A decree for alimony for the support of the wife is in its nature temporary and distinct, and may bo modified or annulled according to circumstances. It is not therefore of the force of a judgment at law, and cannot be the subject of an action in a Court of law, in favor of the wife in an action of debt. The Court making the decree can alone enforce the performance of it, in the same judicial capacity in wnich it was pronounced. Error to the late U, S. District Court for Milwaukee County. This was an action by the plaintiff in error by her next friend. The declaration set forth that the plaintiff had been divorced a mensa et thoro of the defendant, her husband, by an order or decree made by the Yice Chancellor of the, fourth Circuit of the State of New York, on the complaint of the plaintiff in error, and that by the said order or decree, the defendant was ordered and adjudged to pay to the plaintiff for her support and maintenance tffree hundred and sixty dollars a year iij quarter yearly payments, as and for her permanent alimony from and after the first day of July, 1844, during her life, and that the sum of $960 of such alimony be forthwith paid; and that the plaintiff have execution thereof. The plaintiff in error claimed under the said order or decree the sum of nine hundred and sixty dollars. To this declaration the defendant in error demurred and assigned for causes of demurrer: 1st. That the declaration shows that the plaintiff is a feme covert, the wife of the defendant. 2d. That the judgmeut or decree is not such an one as can be prosecuted m this form of action. 3d. That it does not appear from the said declaration that the said Court of Chancery had jurisdiction of the person of this defendant; or that he was served with pro--cess, or had notice of the said suit, without which the suit cannot be maintained. This demurrer was brought to argument before the district Judge, who sustained the demurrer, and ordered a judgment for costs against the plaintiff in error. To this judgment the writ of error In this cause is brought. Holliday and Brown, for plaintiff in Error. Ryan, for Defendant in Error. On the part of the plaintiff in error it was argued that the action below could be maintained to recover alimony by the wife, as against the husband where she had been divorced a mensa et thoro, where such alimony had been ordered and decreed by a Court of another State, having jurisdiction of the matter; and that'such action might be based upon the order or decree, and to, this point was, cited -3 Caine’s R*, 22; 9 Cowen’s Ri, 494; 13 Wendell’s R., 467; 9 Sargent & -Rawle’s Rep., 252; -U. S. Digest ,514; 5 Pickering'sR., Statutes of JY. York, <182-; 96-and 183. On -the .part of the defendant in error it was -argued that a divorce was a matter of special jurisdiction; and that to maintain a suit for alimony against the husband "by the wife, the jurisdiction of the Court granting such divorce, it having been done in another State, should have been averred in the declaration and to thjs point cited authorities to wit: 8 Wheaton, 697; 3 Barnwell and Cress-well, 52; 5 Common Law R., 225; Atkin’s, 408. That debt does not lie on a decree in Chancery on a decree for alimony was cited 9 Greenleaf, 140, quoted in Kent’s Commentaries. That the wife divorced simply a mensa el thoro could not maintain an action against her husband for alimony or other cause. That such a divorce did not so sever the matrimonial tie as to give to the wife a right of action against her husband, either in her own name or bypro-chien ami. To -this point was cited 10 English Common Law Rep., 84. [MAJORITY — Larrabeb, J.,] By the Court. Larrabeb, J., The demurrer is well taken. After many decisions which overthrew the doctrine of the common law, it was at last held, after a full argument before the twelve Judges, that a. feme covert could not sue and be sued as a feme sole, even though she was living apart from her husband, with his consent, and upon a separate maintainance secured by deed. Marshall vs. Rutton, 8 Term Rep., 545. It is also a settled doctrine that a divorce a mensa et ilioro does not destroy'the relation of marriage, but -merely suspends for a time some of the obligations arising out of that relation. Lewis vs. Lee, 3 Barn. & Cress., 291. This is the doctrine of the English Courts, though in this country it does not appear to be well settled. It is true that in the case of Dean vs. Richmond, 5 Dick, 461, it was held that a wife divorced á mensa, migntsue and be sued in an action at law as a feme sole for property acquired or debts contracted subsequently to the divorce; and Chancellor Kent in his Commentaries 2d vol. p. 158, regards this aójete more reasonable ' doctrine. But this decision is based upon the fact that, at the time, there was no Court of Chancery in Massachusetts; and hence an adherence to the strict rule Would operate as a complete denial of justice. The decision in this view was no doubt a very proper one, but here there is no necessity for such a departure, and we are disposed to maintain the doctrine of the common law. The action in this case being in the name of a prockien ami does not obviate the difficulty. Another ground of demurrer is, that an action of debt does not lie to enforce a decree in Chancery. Without going into an examination of the general doctrine, it is sufficient for the present purpose, to enquire into the force and effect of a decree for alimony in the State of New York, where this deeree was made. Has it the same force as a judgment at law 1 We think clearly not, as the Statute provides, 2 N. Y. Rev. Stat., 148, that the husband shall be required to give reasonable security for the performance of the decree; and in case of his neglect or refusal, authorizes the Court to sequester his personal estate, and the rents and profits of his real estate. There is no provision which declares in so many words, as does our own, that decrees shall have the same force and effect as a judgment; but the general provision in relation to decrees for the payment of any debt, damages, &c., makes them a charge upon lands, tenements, real estate ai^j|phattels real, the force of a decree for alimony thus being an exception to the general provision. The decree for alimony is a specific one for the support of the wife, and in its nature distinct and temporary. It may be increased as the necessities of the wife may require, and the ability of the husband peri^r, or it majr be diminished, or dissolved. Hence it cannot be regarded as a decree absolute for the payment of a sum certain, nor has it the force and effect of a judgment at law. It belongs to that numerous class of decrees which from their very nature cannot be enforced in any other than a Court of Chancery, where one exists. Elliot vs. Ray, 2 Blackford, 31. We are therefore of opinion that the action does not fie in this case. The judgment is affirmed,