arrangement. As a general rule therefore the court is not inclined to enforce arrears of many years standing. Alimony is allotted for the maintenance of a wife from year to year. However as there has in this case been no application to reduce the alimony, but the parties have gone on satisfied with some private arrangement of their own, I think I shall best consult the interests of both by decreeing alimony from one year prior to the monition,-the husband being allowed all payments on account of the wife during that year;-and from the date of the present monition, I shall continue the alimony according to the original decree." Where both parties had long abstained from applying to the court,-the one for a reduction of alimony, the other to enforce the regular payment,-it will not enforce arrears, nor inquire as to the sums paid by the husband for his wife's debts incurrred by reason of nonpayment of that alimony.(d) The order of the court for payment of alimony will be enforced as in other cases of contempt, and where no sufficient cause is shown for neglecting to comply with a monition personally served, a party may at once be pronounced contumacious, but it is otherwise in the case of a mere informality where the party has virtually obeyed, or is ready to obey the monition.(e) The ecclesiastical court will not hold the enforcement of its order for the payment of alimony by reason that the party [ *598 ] *obtaining such order is in contempt of the Court of Queen's Bench for not delivering up her children to the husband, and is resident out of the country in order to evade the process of that court.(ƒ) 3. OF THE JURISDICTION of the courT OF CHANCERY AS TO ALIMONY. Court of Chancery has no Jurisdiction to Decree Alimony.-The ecclesiastical court has not original jurisdiction to decree alimony; such right is incidental to the power of granting divorces, a power not belonging to a court of equity.(g) It is the exclusive province of the ecclesiastical court to determine the amount of alimony, the period of its payment, and what operates as a discharge of it.(h) The decrees of the ecclesiastical court for alimony are only against the person of the husband, but do not affect the husband's estate so as to take it from his creditors.(i) It has indeed been said, that upon a writ of supplicavit in chancery by the wife for security of the peace against her husband, the court may, as incident to the exercise of that jurisdiction, decree a separate maintenance to her, if the husband refuses to do so.(k) This opinion, however, seems to be erroneous, as there is no modern instance of the exercise of such an authority. There are some old cases in which the court of chancery has decreed alimony (d) De Blaquiere v. De Blaquiere, 3 Hagg. Eccl. R. 322. (e) Hamerton v. Hamerton, 1 Hagg. Eccl. R. 23; see ante, pp. 494-505. (f) Greenhill v Greenhill, 1 Curteis, 465. (g) Ante, p. 469; Wilkes v. Wilkes, Dick. 791; Ball v. Montgomery, 2 Ves. jun. (h) Stones v. Cooke, 8 Sim. 321, n. (k) 2 Ves. Jr. 195; 4 Br. C. C. 339; 2 Br. P. C. 18, 2d ed. See 19 Ves. 397. to the wife; but whether such decrees proceeded upon a previous divorce in the ecclesiastical court, or upon an agreement between the parties, in many of the cases does not appear. (1) But all these cases, except Lashbrook v. Tyler, happened during the time of the commonwealth, when the jurisdiction of the ecclesiastical courts was suspended, and commissioners were appointed to whom jurisdiction was expressly given, and whose decrees were held to be confirmed by the act 12 Čar. 2, c. 33, for the confirmation of judicial pro[ *599 ] ceedings.(m) *On a bill of review to reverse a decree for alimony, it was referred to the judges whether the decrees for alimony made in the late times were confirmed by the act for the confirmation of judicial proceedings, and whether bills of review did lie for the reversal of the same. The judges certified that such decrees for alimony made in the court of chancery in those times were confirmed by that act, and that a bill of review did not lie for want of authority in the court of chancery to make such decrees.(n) It is observable, that if courts of equity had an original and concurrent jurisdiction with the spiritual courts, it would have been unnecessary to have given the commissioners, during the troubles, such jurisdiction, and that the doubt which was entertained could not have been raised respecting the validity of their decrees, after the act confirming judicial proceedings.(o) It is now settled that courts of equity have no general authority to decree alimony to the wife, although she may be totally abandoned and deserted by her husband; or she may be driven from his home, and compelled by his ill-treatment and cruelty to seek an asylum elsewhere.(p) Under such circumstances, where the wife has not obtained a decree for alimony in the ecclesiastical court, the proper remedy is by an action in a court of common law, to be brought against the husband by any person who shall under such circumstances supply the wife with necessaries according to her rank and condition; for by compelling the wife thus to leave him, the husband sends her abroad with a general credit for her maintenance.(q) The court of chancery has no jurisdiction to deliver to the husband the person of his wife; his remedy is in the ecclesiastical court by a suit for restitution of conjugal rights;(r) *nor to decide [ *600 ] whether the circumstances of a case will justify a sentence of separation by the latter court.(s) Writ of Ne Exeat Regno.]-After a decree for alimony has been obtained in the ecclesiastical court, and the husband, in order to evade payment, is going out of the kingdom, the court of chancery will (l) Lashbrook v. Tyler, 1 Ch. R. 24; Ashten v. Ashton, 1 Ch. R. 87; Russell v. Bodwell, 1 Ch. R. 99; Whorewood v. Whorewood, 1 Ch. R. 118; 1 Ch. C. 250. in chancery, and the judges were then of opinion that there being no spiritual courts, nor civil law, the chancery had the jurisdic. tion in those days; but now we have courts christian, the chancery will allow of demur (m) Head v. Head, 3 Atk. 548. (n) Whorewood v. Whorewood, 1 Ch. Rep. rers to such bills for alimony." 223. (q) Guy v. Pearkes, 18 Ves. 196, 197; Harris v. Morris, 4 Esp. R. 41; Hodges v. Hodges, 1 Esp. R. 441; Bolton v. Prentice, 2 Str. 1214; Hindley v. Westmeath, 6 B. & C. 200. 213. See post, pp. 646, 647. (r) 10 Ves. 60. (a) Ib. exercise jurisdiction by granting the writ ne exeat regno.(t) The interference of the court in granting that writ has arisen from the peculiar circumstance, that the ecclesiastical court cannot compel the husband to find bail;(u) and if the husband makes it appear that he does not intend to leave the kingdom, the court of chancery will not grant the writ, although he may not intend to pay the alimony which is due from him.(x) This and the case of an account seem to be the only instances in which a writ ne exeat regno will be granted where the demand is not merely equitable.(y) It is clearly settled that the court will grant a writ ne exeat regno for arrears of alimony actually due ;(z) but the court will not go further, for neither courts of law nor courts of equity are entitled to judge whether a woman is entitled to alimony or not, or what she shall ever get.(a) The court will grant the writ ne exeat regno for a gross sum actually due on a sentence obtained in the ecclesiastical court. (b) But before a decree is made for alimony and separation, the court will not interfere, for it cannot take for granted that there will be a decree, and shut up the husband pending the suit in anticipation of such a decree.(c) The writ in all these cases must be marked for the sum actually due; it cannot be for the value of the annuity given for alimony.(d) But although there should have been a decree for alimony, the writ will not issue pending an appeal by the husband against the sentence allotting alimony on the ground that, according to the practice of the ecclesiastical courts, if there is an *appeal, the alimony [ *601 ] given by the decree is not understood to be due.(e) In Roebuck v. Roebuck(f) the wife obtained a sentence in a cause for adultery, establishing her innocence, alimony was decreed to her in 1785. Afterwards she appealed, not conceiving the alimony sufficient. Pending that appeal she filed a bill for a writ of ne exeat regno, her husband threatened to leave the kingdom to avoid paying the alimony already decreed and the increase, and the writ was was marked for 600l., and was granted pending the appeal for an increase of alimony. A wife applied for a writ ne exeat regno to prevent her husband from leaving the kingdom, which he threatened, till a suit instituted by her against him in the ecclesiastical court for alimony, charging him with cruelty and adultery should be determined. The lord chancellor asked for what sum the writ should be marked, and upon being told that it must be left to the discretion of the court, he said that the question he asked was an insurmountable objection, and thought that it could not be done under a notion of aiding the ecclesiastical court.(g) An affidavit to found such a writ upon must not only say (t) Head v. Head, 3, Atk. 295; Vandergucht v. De Blaquiere, 8 Sim. 322; Pearne v. Lisle, Ambl. 75 ; Smithson's case, 2 Ventr. 345. (u) Pearne v. Lisle, Ambl. 75. (x) 8 Sim. 322. (y) Anon. 2 Atk. 210; Howden v. Rogers, 1 Ves. & B. 129. (*) Read v. Read, 1 Ch. Cas. 115; 2 Ch. R. 19; Ex parte Whitmore, Dick. 143. (a) Haffey v. Haffey, 14 Ves. 261; see Cock v. Ravie, 6 Ves. 283. (b) Shaftoe v. Shaftoe, 7 Ves. 172. (d) Dawson v. Dawson, 7 Ves. 172. (g) Coglar v. Coglar, 1 Ves. jun. 94. It does not appear what became of this case. See Beames on Ne Excat Regno, 42, 2d ed. that the defendant is indebted in such a sum, but also mention the facts on which it arises, and on which it is grounded.(h) The rule is, that there must be an affidavit positive to the extent that the husband is going abroad, or some declaration that he is.(i) Arrears of Alimony not recoverable in Equity.]—A bill cannot be maintained for arrears of alimony due at the wife's death by her executors against her husband. In Stones v. Cooke,(k) a bill was filed by the executors of the defendant's deceased wife for an account and payment of arrears due at the wife's death for alimony which the defendant had been ordered, by a decree of the ecclesiastical court, to pay to her. The defendant put in a general demurrer. Sir L. Shadwell, V. C. after having consulted the judges of the ecclesiastical *courts, said, that the better opinion seemed to be that the eeclesiastical court would allow the wife's executors [ *602 ] to enforce payment of the arrears of alimony against the husband. If that were so, the bill was unnecessary, as the principle on which the court grants a ne exeat against the husband is, that the ecclesiastical court has no power to compel him to give bail. But as it was not so clear that the ecclesiastical court would, in a case like the present, decree an account and payment of alimony as to justify him in allowing the demurrer, it was overruled. But on appeal, Lord Lyndhurst, Chancellor,() allowed the demurrer, who said that the argument that the party would be without remedy, because executors could not maintain a suit in the ecclesiastical court, operated against the bill, as showing that the claim must cease with the wife's death. There was no instance of such a bill filed against a husband, nor did the authorities warrant it. The cases in which the court had granted a writ of ne ereat regno did not warrant it, and the noninterference of the ecclesiastical court did not found any jurisdiction in the court of chancery.(m) Alimony not chargeable as separate Estate.]—In a recent case an attempt was made to assimilate alimony to property settled to the separate use of a woman, but the court denied the similitude; alimony is liable to be varied by the ecclesiastical court according to the husband's circumstances, but separate property remains the same whatever alteration may take place in the husband's circumstances, and whether he is living or dead, or whether he is abroad or not. A married woman, divorced from her husband and entitled to alimony under the sentence of the ecclesiastical court, accepted a bill of exchange for articles of dress, supplied to her by the drawer, and made it payable at her banker's, to whom her alimony was paid. It was held that she did not thereby charge her alimony. In this case a bill was filed by the husband of a milliner against a lady and her trustees, named in a deed of separation between her and her husband; and it prayed an injunction to restrain the payment of certain sums to the wife until the plaintiff was paid a bill of 2251. due to *him for millinery. The facts were as follows: in [ *603 ] (h) Anon. 2 Ves. sen. 489; 1 Br. C. C. 375. (i) Oldham v. Oldham, 7 Ves. 410. (k) 7 Sim. 22. (1) Approved by Lord Cottenham, 3 Jurist, 1116. (m) Stones v. Cooke, 8 Sim. 321, n. December 1837, the bill in this suit was filed, stating that 3007. a year was payable to the wife for her separate use, under articles of separation between her and her husband; and that, in addition thereto, 801. a year was payable to her, under the sentence of the Consistory Court of London, for her sole and separate use, maintenance, and benefit; the wife promised and undertook to pay the 2251. to the plaintiff out of the separate income and maintenance, and to charge the same therewith; and for that purpose she agreed to accept the bill of exchange which had been dishonoured; that arrears of 3007. and 80%. were then due from the husband, and certain sums that had arisen from those yearly sums were then in the hands of the lady's bankers. On the 12th February, 1838, the plaintiff obtained the injunction on affidavit and notice, no one having appeared for the lady. She afterwards put in her answer, in which she said that the 380% a year was allotted to her for alimony, as before mentioned, and that it constituted the whole of her income; that alimony was a creature of the ecclesiastical court, and was subject to the jurisdiction of that court only; that it was not a separate estate, but was a provision for the support and maintenance of the wife from day to day, subject in respect to its amount, continuance, and mode of payment to the discretion of the ecclesiastical court; that the wife had in fact no property therein, and that it was liable at any time to be varied and reduced at the discretion of the judge of the court; that in case it should fall in arrear, the right of the wife to recover the arrears depended entirely on the discretion of the court; that her husband had allowed 380l. a year to fall considerably in arrear, and actions were brought against him for debts contracted by her for necessaries supplied to her whilst it was in arrear, and he was compelled to pay such debts; and although the amount thereof was considerably less than the arrears, the ecclesiastical court in May, 1830, refused to compel her husband to pay up her arrears ;(n) that she did not promise to pay the 2251. out of her separate income and maintenance, but out of property she was in expectation of receiving [ *604 ] from a near relation, and that she never promised or intended to charge her alimony therewith. The husband and his wife separated in 1814, in pursuance of a deed executed in 1812, in anticipation of such an event. By this deed the husband covenanted to pay to the mother of his wife the sum of 3007. a year before mentioned, being the interest of her fortune, for the separate use and maintenance of herself and her child. The money was regularly paid into the bank of Herries and Farquhar until 1820, when the wife instituted proceedings for a divorce from her husband in the Consistory Court of London, on the ground of adultery. On the 16th of May, 1829, the court pronounced for the divorce, and allotted the wife 801. a year in addition to the 3001. before mentioned for alimony. In June, 1835, the wife being indebted to the plaintiff as above mentioned for articles supplied to her by the plaintiff's wife in 1829, and the four following years gave a bill of exchange for the amount then due, made payable at the bank of Herries and Farquhar, where she continued to receive her income, which was dishonoured, and the (n) See ante, p. 597. |