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wife by articles of separation; (d) and his covenant to let her live separate, and not to molest her, will be a renunciation of his marital right to seize her; and his attempting to do so, after entering into such articles, or after a suit instituted by her against him in the spiritual court for a divorce, is a breach of the peace.(e) In Lister's case, (f) the husband, during separation from his wife by their mutual agreement, seized her by force and *carried her home, in order to com[ *670 ] pel her to live with him contrary to the articles entered into upon their agreement to live apart. To regain her freedom, the wife sued out a habeas corpus, and the Court of King's Bench gave her liberty on the ground that she and her husband had separated by consent and under articles to live apart. So where the parties were under an agreement to live separate, and the husband seized his wife by force, and confined her eleven days, and he threatened to seize her again, and cause her to be brought home dead or alive, it was held, that there appeared to be a reasonable foundation for requiring sureties of the peace against him.(g) In another case, (h) the husband covenanted never to disturb his wife, nor any person with whom she should live. The separation took place, and he, in order to have an opportunity of seizing her by force, or for some bad purpose, sued out a habeas corpus to bring up her body. The court held that the agreement was a formal renunciation by the husband of his marital right either to seize the wife, or to force her to live with him; that any attempt by him to seize her would be a breach of the peace; and that if such an attempt were made on her return home from the court it would be a contempt, and the court told her she was at liberty. So where the husband applied for a habeas corpus to bring up the body of his wife, upon a question as to the validity of the return, Buller, J., said, "If this case turn out upon a further investigation to be like that in Burrow,(i) I am strongly inclined to think this would be an answer to the writ."() Upon a similar application made by the husband for this writ, the answer given upon the return of it was, that the wife being entitled to considerable property to her separate use, she and her husband agreed to live apart under articles of separation, by which, in consideration of 3000l., he was to resign all interest in her property; but that he afterwards seized and confined her. Lord Kenyon said, "that unless the wife had done something notoriously to destroy the articles, it was settled that the husband had renounced all [ *671 ] right to her, that he had no claim after the articles of separation. The court, therefore, told her that she was at liberty, and if she were apprehensive of violence, she might have an officer of the court to protect her.()

If a husband, by a deed of separation executed by himself, but not executed by either of the trustees, give his wife license to live where she pleases, he is not justified in entering the house of a third person to reclaim his wife as being improperly harboured there; and the husband, before doing so, should at least have given distinct notice to

(d) Rex v. Mead, 2 Ken 280.

(e) See ante, pp. 608--631.
(f) 1 Str. 477; 13 East, 173, n.

(g) Lord Vane's case, 13 East, 171, n.
(h) Rex v. Mead, 1 Burr. 542.

(i) Rex v. Mead.

(k) Rex v. Winton, 5 T. R. 91.

(1) Rex v. Edgar, Rep. B. R. temp. Lord Hardwicke, by Ridg. 152, n.

the third person, that as far as by law he could he revoked the license. In an action of trespass, with a plea of justification that the defendant entered the plaintiff's house to reclaim his wife, who was wrongfully harboured there, a deed of separation of the defendant and his wife is admissible in evidence, if executed by the defendant, although not executed by either of the trustees.(m)

Writ of Supplicavit.]-A wife may obtain a supplicavit in the court of chancery against her husband for the purpose of compelling him to find sureties not to beat or evil entreat her, aliter quam causa regiminis et castigationis.(n) A supplicavit is a writ grounded upon the statute 1 Edw. III. c. 16, and directed out of chancery to the sheriff and some justices of the peace in the county, or to one or more justices, without the sheriff, for the taking of the surety of such an one as it is prayed against, that he should keep the peace.(0) By an order of the court of chancery, no supplicavit for the good behaviour shall be granted, but upon articles grounded upon the oath of two, at the least, or certificate of any one justice of assize, or two justices of the peace, with affidavit that it is their hands, or by order of chancery, or other of the king's courts.(p) By statute 21 James I. c. 8, s. 1, it is enacted, That all process of the peace or good behaviour, to be granted out of the courts of chancery and King's Bench, or either of them, against any person or persons whatsoever, shall be void, unless such process shall be so granted, upon motion *first made before the judge or judges of the same courts respectively, sitting in open [ *672 ] court, and upon declaration in writing, upon their corporal oaths, to be then exhibited unto them, by the parties, which shall desire such process, of the causes for which such process shall be granted or awarded, by or out of any of the said courts respectively, and unless that such motion and declaration be mentioned, to be made upon the back of the writ; the said writings there to be entered and remain of record and if it shall afterwards appear unto the said courts, or either of them respectively, that the causes expressed in such writing, or any of them, be untrue; then the judge or judges of the said courts, or either of them respectively, may award such costs and damages unto the parties grieved, as they shall think fit, and commit the offender until payment thereof.

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Before a supplicavit is granted, the party who demands it must make an affidavit before a master in chancery, that he does not pray it out of malice.(q) And upon such affidavit the master will make his warrant, upon which one of the clerks of the office may immediately have a supplicavit.(r)

If the offender be ordered to give security for his good behaviour, he must do it with sureties by recognizance before a master, who must be in the commission of the peace. If he beats or assaults the party a second time the court will order the recognizance to be put in suit, and permit the party to recover the penalty, but the recognizance is never enforced but by leave of the court.(s)

(m) Lewis v. Ponsford, 8 Car. & P. 687.
(n) Fitz. N. B. 238, 239; ib. 80, F.; ante,

p. 667 13 East, 172, n.

(0) Terms of the Law, Supplicavit, Fitz.

N. P. 79, G.

(p) Beames's Orders, 93.

(q) Fitz. N. B. 79, H.; see Heyn's case, 2 Ves. & B. 182; post, p.

(r) Com. Dig. Chancery, (4 R.)

(8) Harrison's Chancery by Newland, 563.

The court can only bind the husband to good behaviour, and not remove the wife from him.(t) The obtaining a supplicavit does not justify the wife's elopement, for it is granted on the supposition that they are to live together.(u) In Head v. Head(w) a writ of supplicavit was issued upon the threat of the husband to take his wife to a madhouse; and it would seem that in all cases where the wife is entitled at law to security against her husband's ill-treatment or [ *673 ] threats of injury to her person, she is equally entitled to the writ of supplicavit in chancery when living apart from him under articles of separation, if she has a good reason to be afraid for her own safety; but a reasonable foundation must appear upon the face of the articles filed for the writ of apprehension of serious personal danger, and so it is at law.(x) To ground the writ the articles should not be in general forms, as "fearing," "being threatened, &c.," but some fact must be shown on which the fear is grounded.(y)

In some cases the writ has been refused, and the party aggrieved directed to apply to the justices of the peace.(z)

A supplicavit has often been granted by the court upon articles filed on oath of assault and battery, and that the complainant goes in fear of her life. (a) It has also been granted upon information to the court of ill-behaviour.(b)

Formerly the articles must have been filed on oath, an affirmation was not sufficient. (c) But it is presumed that the rule is now different, since the stat. 9 Geo. IV. c. 32, which allows Quakers and Moravians, when required to give evidence in any case whatsoever, criminal or civil, to make their solemn affirmation or declaration, which is to be of the same force and effect as an oath. By 3 & 4 Will. IV. c. 49, Quakers and Moravians are permitted to make an 'affirmation or declaration instead of an oath in all cases where an oath is required by law. By 3 & 4 Will. IV. c. 82, a similar provision is made with respect to the religious sect called Separatists.

Amount of Security required.]-Under a writ of supplicavit on articles of the peace exhibited by a wife against her husband, the security is not in the first instance to be to an amount unreasonable with reference to his circumstances, but liberty will be given to apply again in case of a repetition of ill conduct.(d) Sometimes the security is reduced on affidavit that the amount required is too large with reference to the circumstances of the party. (e) In Dob

[ *674 ] byn's case(f) the articles exhibited by the wife stated

personal ill usage of a very aggravated nature. The lady appeared in court, and being sworn by the register, who read the articles to her, was examined by the lord chancellor as to the truth of them; upon a suggestion of the circumstances of the husband, security

(t) Ambl. 334.

(u) Head v. Head, 3 Atk. 295.447; 1 Ves. sen. 17.

(w) 3 Atk. 548.

(x) See 13 East, 172, n.

(y) Rex v. Bringloe, 7 Geo. 2, 1733; MS. 1 Madd. Ch. 11; see 13 East, 174.

(z) Clavering's case, 2 P. Wms. 202.

(a) Dobbyn's case, 3 Ves. & B. 182.
(b) 2 Vent. 245.

(c) Exparte Grumbleton, 2 Atk. 70; Rex v. Green, 1 Str. 527; Hilton v. Byron, 12 Mod. 243.

(d) Tunnicliff's case, 1 Jac, & W. 348.
(e) Ambl. 64; 2 P. Wms. 203.
(f) 3 Ves. & B. 183.

was required from him in the sum of 1000l., with two sureties of 500/. each.

In Heyn's case(g) the articles exhibited by the wife against the husband stated various acts of ill usage and threats, that being com-, pelled to leave him she instituted a suit then in prosecution in the Consistory Court of London praying a divorce a mensa et thoro, and that since the institution of that suit he had made an attempt to take her away by force; that she was in great fear and danger that. he would take the first opportunity of doing her some great bodily injury unless restrained by the court, therefore praying that he might be ordered to find sufficient sureties for keeping the peace towards the wife, and alleging that she did not make the complaint through any hatred, malice or ill will towards her husband, but merely for the preservation of her life and person from bodily harm. The husband on his marriage had received a fortune of near 5000l. The security required from the husband was, himself in 1000l. and two sureties in 3001.

Discharge of Party.]-The court it seems exercises a discretion on the subject of discharging a party, but in general the court of chancery, as well as the Court of Queen's Bench, in the case of articles of the peace, at the end of the year, if nothing new happens, will discharge a party for want of finding sureties.(h) Where a party had been imprisoned for thirteen months on a supplicavit, [ 675 ] without any fresh threatening or other misbehaviour, the

court, on motion after notice, ordered the party to be discharged upon entering into a recognizance before the master, with small bail.(i) The court will not discharge a supplicavit on an affidavit denying the facts, for it will not try them on affidavit; but on a strong case, showing combination and contrivance, the supplicavit will be discharged.(k) The court interferes in these cases to prevent mischief and to save life, and therefore would not discharge the writ which, had been granted against a party of a turbulent and dangerous spirit, who applied on the ground of vexation, but said that the complaint of vexation came too soon, and that the party must stay till the end of the year and behave himself quietly all that time.(/) Where the cause which led to the ill treatment of the wife, upon which a supplicavit was granted against the husband, continued to exist, the court refused to discharge the writ.(m)

Surety of Peace.]-A wife may require surety of the peace against her husband on account of his cruelty and ill-treatment, and a husband may obtain it against his wife.(n) Surety of the peace ought

(g) 2 Ves. & B. 182.

(h) Baynum v. Baynum, Ambl. 64. Writs of Supercedeas not to be granted but upon Motion in open court.]—It is enact ed by stat. 21 Jas. 1, c. 8, s. 3, that all writs of supercedeas to be granted by the courts of Chancery and King's Bench shall be void unless granted upon motion in open court, and on such sufficient sureties as shall appear on oath to the court, to be assessed in the subsidy book at 51. lands or 101. goods. And unless it shall also first appear to the court that the process of the peace or

good behaviour is prosecuted against him
desiring such supercedeas bona fide by some
party grieved in that court out of which the
supersedeas is desired to be awarded.
(i) Ex parte Grosvenor, 3 P. Wins. 103.
(k) Ex parte King, Ambl. 240; 2 Ves.
sen. 578.

(1) Clavering's case, 2 P. Wms. 202.
(m) Ex parte King, Ambl. 333; 2 Ves.
sen. 578.

(n) Hawk. P. C. c. 60; 2 Crompt. 118; Rex v. Bowes, 1 T. R. 696.

upon a just cause of complaint to be granted by any justice of the peace against any person whomsoever, under the degree of nobility, being of sane memory, whether he be a magistrate or private person, and whether he be of full age or under age. The safest way of proceeding against a peer is by complaint to the court of chancery or Queen's Bench (0) There ought to be a reasonable foundation on the face of the articles to induce a fear of personal danger, before the court will require sureties of the peace.(p) The articles ought to be exhibited in the applicant's neighbourhood that the security may be given there.(7) In a case where the defendants lived at Portsmouth, [ *676 and articles of the peace were *exhibited against them ] in the court of King's Bench, it had been the usual practice for defendants in such cases to appear personally and to give surety in court. But it being thought oppressive to bring the defendants such a distance, the court ordered the attachment to be indorsed, that sureties might be taken before the justices in Hampshire, in a stated sum, to be regulated by the discretion of the court; and laid. this down as a general rule to be observed in all similar cases for the future.(r)

If the marriage be disputed the court will order the recognizance to be worded so as not to admit the fact.(s) Married women ought not to be bound themselves, but to find security by their friends.(t) And if the wife cannot find sureties she may be committed.(u)

Articles of the peace had been exhibited against the defendant by his wife, process issued thereon to enforce appearance; when he appeared in court with his sureties he tendered affidavits in contradiction of the facts sworn to in the articles, for the purpose of discharging them. But Lord Ellenborough, C. J. said the court were satisfied they could not receve affidavits on the part of the defendant to contradict the truth of the articles exhibited against him. Le Blanc, J., adverted to a case(w) in which it was refused the defendant to controvert the facts, but explanation was allowed of such parts of the articles as were ambiguous.(x) Upon the exhibition of the articlesof the peace the court may require bail for such a length of time as may appear necessary, and are not confined to a twelvemonth. But where bail had at first been required for fourteen years, it was after-wards reduced to two, upon its being shown that an information was depending against the defendant on the same account, which must. necessarily be determined within that time.(y)

[ *677 ] SECT. VI.-OF THE RIGHT TO THE CUSTODY OF CHILDREN.

Jurisdiction respecting the Custody of Children.]-The ecclesiasti

(0) 1 Hawk. P. C. c. 60, s. 3.

(p) Lord Vane's Case, 13 East, 172, n.
(q) Rex v. Waite, 2 Burr. 780; Rex v.

A. B., 2 Lord Keny. 511.

(r) Rex v. Bomaster, 1 Bl. R. 233. (8) Rex v. Bainbridge, 2 Str. 1231. Tawk. P. C. c. 60, s. 3.

(

(u) Crompt. 118; see Burn's Justice, by Chitty, "Surety of the Peace."

(w) Rex v. Bringloe, 7 Geo. 2, temp. Lord Hardwicke.

(x) Rex v. Doherty, 13 East, 174; see Lord Vane's case, ib. 172, n.

(y) Rex v. Bowes, 1 T. R. 696.

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