The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-11-29
TINE FORREST CASE.


S--lhe complaint IN TINS SUIT was HE'D Dy the
wife TO obtain separation from her husband, on
the ground OF abandonment. Ii appeared that The
defendant had separated from his wife, allowing
her Q 800 year for her support-that after the
separation, he had instituted proceedings IN Penn,
syvania to obtain divorce from her, on the ground
OF adultery. BY the laws OF that oiate, u was
necessary that the husband should nave oeeh
resident there for one year; and me comPalht al
legged that he was not at the commencement OF the
suit ia Pennsy MIA, and for year preceding had
not been resident Of that STATE, and that he pre-
tended TO be resident there, and had brought his
salt there in order 10 deprive the plaintiff, who re-
sided in this State, OF the means OF properly defend
ing herself against the charges made against her.
The complaint also alleged that the defendant
was the owner of large property, situated mostly
in this State, and it expressed the fears of the plain
tiff from circumstances which had come TO her
knowledge, that the defendant would depart this
State that ne would sell his property here and re-
his means from this State, and would forciblv
abduct her from TINS State, and remove her 10
Pennsylvania, in order to subject her 10 the urls
dic'ion of the courts of that State.
She therefore prayed an injunction, restrain
ing the defendant from proceeding in his suit in
Pennsylvania, on the ground that it fraud
upon her right 10 be heard in the courts OF this
State; for a writ of spppicdrit. commanding
HIM not to modest her IN her retreat, ia this
State, and for ne Great, restraining him from
departing from the State, so that he might
always be amenabie 10 the courts of this
State for any violation of the Injunction. Those
several wrts were allowed by Judge at cha nbers
and motion made at the special term 10 dis
charge the writ Of nc eTCGt, which was granted.
The plaintiff appealed from that order,
q. O'CoNoR for plaintiff
j VAN BUREN, for defendant
EuNoNBs. Presiding Judge--The counsel on
both sides agreed that he wnt Of ne Great is abo-
ished by the Code.
certainly did not so understand the law at the
tine that / allowed the writ in this case, or
should have htstated in directing il TO issue; for
the distinction on which the counsel for the plain
tiff now rests bis claim 20 the writ did not then
UnIl the decision in this al the special term,
il had net occurred 10 NE that the writ had been
abolished but, on the other hand, have several
tin es allowed it since the Code was enacted, sup
posing II 10 be of those provisional remedies
which had been saved 10 suitors by sections 2ii
and 46S. ] confess that the note Of the commits
soneIs had not met my eye, and have acted upon
The subject in ignorance of their intention, aud
without the light which might, doubtless, have
derived from their remarks.
And now that my ton is called TO those re-
marks | cannot receive the ayowal of their inten-
ton in recOmme nding the law az conclusive evil
dence of the intention OF the Legislature ia passing
il, nor as anything but very imperfect evidence of
its real meaning
1t was frequently remarked by the former Court
of Errors, by the Chancellor, and by the former
Supreme Court, when the notes OF the revsors
though happily distinguished by great learning
and research, were quoted TO them, EVIL
dtnce of the meaning of the Revis, d Statutes
that they could not receive them as such, for the
Legislature might have meant one thing and the
Tevisers another, and that the meaning of the
statute was to be gathered rather from its language,
and the plain import of the words used than from
any specification as to the thoughts or intentions of
those who proposed II.
IL would doubtless tend to relieve our task of
interpreting the code, Of much OF its burden, if we
cCuld be 10 liberty 20 refer in all instances 10 the
views Of the commissioners in reporting IL; and
though that might involve IN all cases, the inquiry
whether The part under consideration had been
reported by them or intsTposed by the Legislature,
and might sometimes require US to give constTuc-
h Of fltal
used, yet il would materially lessen both the re-
sponsibity and the labor which seem TO be sccu.
mu atrg ulonus.
But / know Of no principle to authorize Us to
adopt such course. The maxim a rerbls iegis,
non Cst TCCtdCadisp, Is old the common law
itself, and nothing is better settled than the rule
that the intention Of the law giver is TO be dsduced
from view of the whole ana every part OF statute
tektn gLd compared together, eud that the true
meaning Of statute rs properly 20 be sought from
tie tody Of the act tsct The current of authority
is m favor q reading statutes according 70 the
II tural aud obvious import Of the language, (per
Brcrron j.. 20 Ucnd 56l,) and where the words
are NOS explicit he intention Of statute Is 10 be
gathered ~ well from its coHtex' from the occa-
son ard necessity of the law, from the mischief
fer, .ud ,hg OH cts ard remedy IN view. q hent's
q m -t2
such u understand 10 be the sound maxims OF
iaf-rpIe'g non tsatli.hsd by the experience, and
TtuGea by the APPRECIATION Of ages, and | have
neither the power nor he inclination TO wander
from them in pursuit Of he presumed intcnti0n Of
the pTCrcuncers Of the statute.
Any other rule would substitute the dis erection Of
q e Judge for The fixed rule of law, would cast
every mans rights afOat upon al uneXplorcd sea,
and would anuihilate that certainty which IN law
a. the mother Of lcpose,
TIE admission made at the bar, TO which have
alluded, aud the decision OF the Superior Court 10
which we were referred, both are based upon the
idea that The writ Of ne crtaf has merely the Office
Of the c0J10S od TC5bOndtHdHBl at law, and Issues
only for the purl oie Of arTesting the defendant.
This b. q mistaken view Of the Office and pur-
poses Cf The wrt Like the wit Of sttPYlicaUf,
n is ore 81 the pccuI!sr remedies connected with
the exclusive jurisdiction Of equity; and Il may as
well be- said that the wit Of SuIpllcgrii, which ~
IN he nature ol the process al common law, 20 hnd
suttues Ct the IeaCe, and is resored to by the
wife aE Liast her husband, is abolished because,
bOih at law and m equity, the wife has another
adequste remedy. 10 Is true d is seldom used, bur
II D. equally true that 70 has not therefore ceased
% exist a. provisional remedy. Good We. Cod,
y CIR, III; Storey, Eq j., l,l0j)
The wit OF 10 GrJat was originally used for po-
hucll purposes, and was founded on the idea That
because Cyt.y men was bound to defend The king
End bis realm The sing might. as part Of The pre-
negative oi che crown, command any man that he
thuuit rot 20 beyond t,aeUr out OF the realm
tfin MAJ Brew s., 2Co. los 81; Com. Dig. Chan-
In The reign Of Elizabeth il was applied to civil
TurIolCs i1 aid o. the administration 81 iusuce.-
G SfOy % J ID, l,i67 In this country II u used
not 90 much o. ucrCranve WIT as VIII 81
NAH, ard 10 general viii n0t be erantcd unleSs IN
casts 81 equitable debts and claims, for the reason
that ca lCuh Cl5ims there is an adequate remedy
al law.- tBcaus Ne Ex go. Ssy m0ur VS. laz1id,
II. GRID
such a TIE general rule, 70 which there are, how
ever two Cxccp ions, and one of them BE- the case Of
alinony itCreed To o wife, which Will b. enforced
by this wit against the husband. Il he Is sbout to
quit the realm. 90 (Shaiioc W. Shaioe. Yes. II
Dawa0n We Dawson, 10. l52, , Atk 2l0)
Ard the question aIists whether the wit, in this,
one 81 the excepted clseE s the case OF an arrest
prohibited by sect us of the Code, or is one Of
tha.t provisional remedies which is saved 20 SUIT
or. nom he process of abolition, by sections ~
aud .tS
live lock upon the wit merely az means Of
eniorC.ua au equitable debt. we may well conclude
that 30 b. superseded by the arrest provided tor IN
the Code tui t we look uron IL as a prerogatiye
viii Ia compel man 10 remain al home until he
he he's psTiormcd bis duty 90 he realm, or as
wit IN cid oi he exclusive jurisdiction Of equity,
resfftiuing ore who designs 20 avoid the justice
and equity Of the court by going beyond seas, IVY