Lewen, by her next friend, v. Stone, et al., 3 Ala. 485

COLLIER, C. • J. If the defendant, Lewen, had not a legal interest in the slaves in controversy, then they were not subject to levy and sale, under the' execution of Stone. That execution though issued from the Court of Chancery, we infer, is founded on a monied decree, which does not specifically direct the slaves to be sold in order to its payment; consequently, if the title to them had not vested in Lewen, they could not be regularly reachpd by execution.

Supposing such to have been the condition of the property, it was competent for the person having the legal title to have interposed a claim, and tried the right as provided by the statute; and if that person was absent from the country, of legally incapable of litigating the right under the 'statute, then a Court of Equity, ex necessitate, or to prevent great or irreparable injury, wffiuld interpose by way of. injunction, at the instance of a party, showing a sufficient interest in the subject.

The object of the complainant’s bill, is professedly to arrest all further proceedings upon the execution of Stone, and to discharge the slaves from its levy; and the ground of equity, alleged is, that Lewen, as husband, never acquired the possession of the slaves; because they were bequeathed by the complainants father, to her' sole and separate use.

If, by the bequest in the will of her father, a separate estate was not created,, then she and her child by a former marriage, are entitled to the entire property in the slaves, and the laws of Louisiana, where her last marriage took place, does not eiititle her present husband to any part of her estate. And further, the estáte of her first husband has not been settled by the administrator appointed in •Louisiana, and she was duly appointed in that State “Dative Tutrix”■ of hér son; upon this .latter, ground, if the,, former fail, . she claims to hold the slaves. .

These allegations seem to us to be entirely consistent with each other, and can only be regarded as so many distinct reasons why an injunction should be-a warded.. The bequest in the-will of John Rogers, deceased, is first relied on, as giving ■the complainant a separate estate; if that shall not-thus operate, then, she insists, that the slaves were .the property, of her first . husband,-and never having been ■ distributed, have-not vested in her present husbanc}; and if the laws of Louisiana,áre applicable, no property could vest in him, her estate .and domicil .being -there, and her marriage there consummated.

The . grounds stated, as entitling the complainant to relief, may affect her.rights differently; under one, s.he would, be. the exclusive proprietor .of the slaves, while .under .the other, she -would be . entitled to them conjointly with.-her-.son, after the estate of her .former husband was settled; but .We.capnot think, that for this reason, the bill is multifarious, or that there is a misjoinder of causes of complaint.

In the causes stated, the complainant and . the defendant, Stone, are both. interested, for if either be avai- . lable, it will be shown, that the interest of the former, had-never vested in her husband, jure mariti, and consequently, .that the execution óf Stone could not be .satisfied by .the sale .of the slaves.-, , •If the .bill be multifarious, it must be upon.the .ground, that .it unites several distinct matters, perfectly .-unconnected .against the defendant, Stone.

If this were: an original bill,. seeking to setup an .estate in the complainant, founded upon all-the sources-stated,.the objection might be available; but such is not its .character. .. It.is- not an original bill, to .put her..in the enjoy- ’ ment of what she supposes tp.be her right, but it is an appeal -to -the preventive power of chancery, to protect her-possession, . asserting s'eyeral reasons to show why ft should not be disturbed-.

If the. complainant’s interest be such as.-slie supposes, it is .clearly competent for equity to. afford hen relief. .In the first • case, if the will of her father gave a separate estate} it is clear 'that the property- cannot be. sold .-to/pay her husband’s debts: , in- the second, as the marital rights of the husband have not attached upon the .slaves, a Court of.Chancery .will -enjoin him, or his assignee from taking possession of them, and a fortiori, his judgment ■creditor, from selling them under execution, until a suitable settlement shall be made upon her. Dunn and wife, et al v.

The Bank of Mobile, et al. 2 Ala. Rep. N. S. 152; 2 Story’s Eq. 630, ’33, ’35, 641; Roper on Husband and Wife, 250; Atherley on Mar. Sett. 350. If has been frequently remarked, that it is difficult, if not impossible to educe from the authorities any rule of universal application, or as an abstract proposition, to say what constitutes multifariousness. The courts do not favor the objection, where its allowance does not appear to be promotive of justice, and consequently, are very much disinclined to extend the principle on which the cases heretofore occuring have been decided.

A familiar, and perhaps the most usual case-of multifariousness, is where a defendant-has no connexion whatever with a large portion of the record, and the case made by it. But if the view we hkve taken of the complainant’s right to-go into equity, be well founded, it is perfectly clear that the case stated in'the hill in every aspect, concerns the defendant, Stone. ■. ■ ■■ Again-: it has been said, if a bill does not pray for multifarious relief,it cannot be demurred to for multifariousness,’though the case would support a prayer for such relief: Dick v. Dick, 1 Hogan Rep. 290.

In the present case, the prayer is for an injunction to prevent any disturbance'of the complainant’s possession and enjoyment of the slaves by Stone, and if such be not the redress to which she is entitled, she then asks for such relief as- may be appropriate.

This is not a multifarious but an alternative prayer, and if the case cited may be regarded 'as an'authority, the bill is free from the objection-alleged. • If the administrator of Prescott, and the infant son of-intestate, were made parties, and a prayer added for the settlement of the intestates estate, &c. we will not saythat the bill would be multifarious in introducing into the record, matters independent of, and distinct from the case of the complainant and the defendant, Stone; but certain it is, that if’thus-changed, it would be more liable to the objection, than It now is.

And if it be necessary to modify the bill,- in order to entertain- it, the Court would not,-immediately upon its-being amended repudiate it for multifariousness; this would be'in effect, to declare, that although the case stated, was prima facie a good one, yet Chancery was too much,trammelled in its mode of procedure, to adjudicate it; a principle which that Court cannot recognize, To such a state of things, thp remarks of Lord Cottenham, in Mare v. Malachy, 1 Mylne & Craig’s Rep. 559, are strikingly appropriate.

It is the duty, says he, of every Court of Equity to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all new cases, which from the progress daily making in the affairs of men, must continually arise; and not from too strict an adherence to forms and rules established under very different circumstances, to decline to administer justice, and to enforce rights, for which there is no other remedy.

The onus of sustaining the allegations of the complainant’s bill, rests upon her, if a negative pnswer is interposed, and if she shall establish either of the grounds on which .she places her title to relief, the injunction must be continued.

If under the will of her father, it shall be determined that she is entitled to a separate estate, or the laws of Louisiana, invest herself and her son with a joint but exclusive interest, then the defendant, Stone, cannot pursue the property further; but if neither" of these grounds shall be sustained, and. it shall appear that the estate of Prescott has not been settled, he may go into equity and coerce a settlement, and distribution of. the estate, subject however to the. payment of the debts of the intestate and a suitable provision for the complainant.

As this cause was disposed of by the Court of Chancery upon a question of pleading, we have forborne to consider the mer-r its of the case, thinking it best, that it should be left open to ex?animation, when brought to a hearing. We have only to add, that the decree is reversed, and the cause remanded. ■