#### Gibson *vs.*Patterson.

Jackson, C. J., and Hall, J., being disqualified, Judges Hammond and Stewart, of the Atlanta and Flint Circuits, presided in their stead.]

1. Where a bond was given, reciting that the obligee had filed her libel for divorce and bill *quia timet*against the obligor, under which he had been arrested, .and the condition was for the payments of such amounts as might be ordered by the court from time to time as alimony and counsel fees to complainant, the mere recital that the arrest was made on a bill *quia 'timet*was not even *prima facie*evidence that it was illegal, it appearing that it was made by virtue of the order of the chancellor. .The presumption in favor of the proper conduct of courts and judicial officers acting within their legitimate sphere, operates in favor of the legality of that proceeding, and, if not conclusive, would certainly cast upon the defendant the burden of showing that it was illegal.

*(a.)*Where a bill was filed in aid of a libel for divorce, and the principal purpose of it was to secure the wife’s alimony, with proper allegations and proof, the chancellor would have authority to order the arrest of the defendant, and to require him to give bond and security for his compliance with any order that he might grant in the divorce case then pending for the payment of alimony to his wife.

(6.) The bill being lost, the presumption is that its allegations were sufficient to authorize the granting of the order requiring the defendant to give the bond sued on.

2. Temporary alimony is fixed by the judge in his discretion, and upon the. passage of the order allowing it, the right to the amount allowed becomes fixed and absolute until revoked or modified by the judge, and may be enforced by writ of *fieri facias*or by attachment for contempt; and the failing to apply for the remedy to enforce it during the pendency of the suit cannot operate to deprive the plaintiff of the right to sue for it after the final verdict disallowing permanent alimony. The granting of temporary alimony is a question for the court; the finding or refusal of permanent alimony is for the jury.

3. It is difficult to see how a bond given under the order of the chancellor, and in compliance therewith, as a condition of the principal obligor’s release, was under duress, so as to be invalid. The plaintiff, in a suit on such bond, at least had the right to have the question submitted to the jury, and the onus of establishing the duress was on the defendant.

(a.) The question whether or not the surety on such a bond could avail himself of the defence of duress upon the principal obligor at the time of the execution of the bond, whore the duress was known to the surety at the time, is left undetermined.

November 27, 1885.

*550Bonds. Equity. Alimony. *Quia Timet.*Arrest. Presumptions. Husband and Wife. Duress. Principal and Surety. Before Judge Simmons. Bibb Superior Court. October Term, 1884.

Reported in the decision.

Hardeman *&*Davis ; Gustin & Hall, for plaintiff in error.

R. W. Patterson; R. F. Lyon, for defendant.

Hammond, Judge.

This case was an action of debt on a bond, brought by the plaintiff in error, who was the obligee against Oscar E. Besore, as principal, and the defendant in error, as surety. The principal was not served, and the case proceeded alone against the surety. After the introduction of the plaintiff's evidence, the presiding judge granted a non-suit, and this is the error complained of.

The plaintiff’s evidence was as follows:

First. The bond sued on, which was in the penal sum of twenty-five hundred dollars, dated April 28,1813, payable to the plaintiff, and executed by her husband, Robert 0. Besore, as principal, and the defendant in error, as surety. The bond recited that Tallulah 0. Besore had filed her libel for divorce and bill *quia timet*ágainst Oscar E. Besore, in Bibb superior court, under which he, the said Oscar E. Besore, had been arrested, and provided that if he should well and truly pay such amounts as might be ordered by the court from time to time, as alimony and counsel fees, to the said complainant, then the bond to be void; else of full force and effect.

Second. The interrogatories of Samuel Hall as follows: I know the parties. I was counsel for Tallulah 0. Besore in a libel for divorce against her husband, Oscar E. Besore, and also in a bill in equity in aid of that libel, the princi*551pal purpose of which was to secure to her alimony, both temporary and permanent. Tallulah 0. Besore was plaintiff, and. Oscar E. Besore was defendant in both the suits. Oscar E. Besore was arrested under an order of the chancellor, upon the proceeding in equity, and was required by that order to give bond and security to pay the alimony that might be awarded to the complainant. R. M. Pattei’son, the defendant in this suit, joined with Besore in the bond ordered, upon which this suit is brought.

Third. The interrogatories of Tallulah 0. Besore (now Gibson), the plaintiff in the case, as follows: I received money from Oscar E. Besore through the hands of my counsel. I think it was in the year 1873. It was paid to me as alimony, by order of the court, as I understood. I thixxk the amouxxt was between two and three hundred dollars, but do not remember positively.

Fourth. The order of the chancellor in the divorce case, dated August 14,1873, awarding forty-five dollars a month from April 26,1873, to the plaintiff, as temporary alimony, to be coxxtinued until further ordered, and one hundred and fifty dollars as counsel fees.

Fifth. The final verdict ixi the divorce suit (the date of which does not appear), granting the divox-ce and refusing alimony.

Sixth. The testimony of A. B. Ross, clerk of the superior court, proving the loss of the oxiginal papers in the equity cause of Tallulah O. Besore against Oscar E. Besox-e.

The questioxi made by the bill of exceptions is, whether the court below erred in granting a non-suit on the foregoing evidence:

1. It was contended by counsel for defendant in error, that the bond was void, because the chancellor had no legal authority to order the defendant’s arrest and require him to give bond on a bill *quia*timet, and that the bond itself showed, by a x-ecital therein, that it was executed by virtue of an order granted on a proceeding of that character, and was therefore *prima facie*void, and that the plaintiff had *552failed to show that the order requiring tho defendant to give the bond was such as the law authorized the chancellor to grant on tho proceeding instituted before him. The presiding judge in the court below seems to have adopted this view, and to have awarded the non-suit for this reason.

We think that the mere recital in the bond that the arrest was made on a bill *quia*timet, it appearing that it was made by virtue of the order of the chancellor, was not even *prima facie*evidence that it was illegal. The presumption in favor of the proper conduct of courts and judicial officers acting within their legitimate sphere (Code, sec. 3753) operates in favor of the legality of that proceeding, and, if not conclusive, would certainly cast upon the defendant the burden of showing that it was illegal.

But the plaintiff was not dependent alone upon that presumption. Tho record of the proceeding under which the arrest was made was not before the court, having been lost, as shown by the testimony of the clerk, but lion. Samuel Hall, associate justice of this court, testified for the plaintiff that the bill was filed in aid of the libel for divorce, and that the principal purpose of it was to secure her alimony. It will not be contended that a chancellor, on such a bill, with proper allegations and proof, Avoukl not have authority to order the arrest of tho defendant and require him to give bond and security for his compliance with any order that he might grant in the divorce case then pending, for the payment of alimony to his wife. Such, at least, is our understanding and interpretation of the law. (See Code, sec. 3226, sub-sec. 7, and sec. 3230). What the allegations in this bill were does not appear, but the presumption is that they were sufficient to authorize the granting of the order requiring the defendant to give the bond sued on.

2. It was also contended by counsel for defendant in error- that the verdict of the. jury on the final trial of the divorce casé, refusing to allow any alimony to the plaintiff, was a final settlement of the question as to her right to *553alimony, not only for the time subsequent thereto, but also for the time previous, the order of the judge being merely, a temporary provision, subject to affirmance or disaffirmance by the jury, and that the verdict of disallowance amounted to a disaffirmance of. the judge’s order, and was a bar to the recovery of any arrearages on the amount allowed by him.

We do not concur in this view of the question. The statute (Code, section 1736 *et seq.)*draws a plain distinction between temporary and permanent alimony. The one is fixed by the judge in his discretion, and upon passage of the order allowing it, the right to the amount allowed becomes fixed and absolute until revoked or modified by the j udge, and may be enforced by writ of *fieri facias*or by attachment for contempt; and the failure to apply for the remedy to enforce it during the pendency oí the suit cannot operate to deprive the plaintiff of the right to sue for it after the final verdict disallowing permanent alimony. The verdict refusing permanent alimony is merely a declaration by the jury that the plaintiff shall not receive anything in future from her husband, and does not affect, one way or another, any allowance that may have been made previously by the judge. The right to this became fixed and absolute, and the jury had no power to deprive her of it by their verdict.

As to the right to sue for arrearages of alimony, reference is made to the following authorities cited by counsel for plaintiff in error: Barbee *vs.*Barbee, 21 Howard (S. C. U. S.), 582; Emery *vs.*Neighbor, 2 Halst., 142 (11 Am. Dec., 541); Fischli *vs.*Fischli, 1 Blackf., 360 (12 Am. Dec., 251); McNamara's case, 2 Bland., 566, note; Helms *vs.*Franciscus, *Id.,*565, *et seq.*

3. It was contended that the granting of non-suit was right, because it appeared (hat the bond.sued on was given by the principal obligor while under arrest, and therefore while under duress. It is difficult to see how this could be the case, if the bond was given under the order of the *554chancellor and in compliance therewith, as a condition of his release; but be that as it may, the plaintiff certainly had the right to have the question submitted to the jury. The bond having been given, it was incumbent on the defendant, if he desired to avail himself of that defence, to show that the principal obligor was under duress Avhen he signed it.

The question as to whether or not the surety could avail himself of the defence of duress upon the principal obligor, at the time of the execution of the bond, Avhere the duress was known to the surety at the time, is left undetermined by this court. See Code, section 2149; Brandt on Suretyship, 121; Baldwin *vs.*Gordon, 12 Morton, La. An., O. S., 378; State *vs.*Burgy, 6 Robinson, La. An., 63; Jarrett *vs.*Martin, 70 N. C., 459; 6 Robinson, La.,. 60; Strong *vs.*Grannis, 26 Barb., 122; Blackburn *vs.*Wall, 21 Md., 208; Herrington *vs.*Davis, 13 Miss., 94; Sanders *vs.*Bobo, 2 Baily (S. C.), 492; Caine’s Rep., N. Y., p. 9, note a; Robinson *vs.*Schuler, 4 Hunter (N. Y.), 166; Thompson vs. Lockwood, 15 Johns, 256; *Brown vs. Ayer & Bates,*24 *Ga.,*296; *Governor vs.*Williams, *Dudley's Rep.,*245; U. S. *vs.*Tingy, 5 Peters, 129; Burchert *vs.*Brown, 72 Penn. St., 375; Champion *vs.*Noyer, 2 Mass., 487.

Judgment reversed.