
    Emily Peltier vs. Charles Peltier.
    Where a defendant ia in contempt, he cannot move to set aside proceedings; but where there is merely a failure on his part to comply with the requisitions of an interlocutory order, he may move to discharge the order for irregularity.
    A feme covert connot file a bill against her husband without pro chdn ami.
    
    Where an injunction and ne-exeat were issued, May 31,1836, and were returned served on tier, the Oth of June; and the subpeena was not issued until the 2d day of July following, it was held to be irregular.
    A court of chancery has no jurisdiction in a case where the bill is filed for alimony merely.
    The bill, in this case, was filed May 31, 1836, in the supreme court of the terrritory of Michigan, in chancery sitting, and set forth that the complainant came into the territory of Michigan in the year 1834, and had residedfin said territory ever since. That in the. month of January following, being then of the age of twenty years, was married to the defendant, who was then twenty-six years of age, or .there abouts.
    Soon after the marriage, and within one month, the defendant evinced angry feelings towards her, and abused and ill treated her, and frequently resorted to acts of violence upon her person. That in the month of November, 1836, complainant was confined and delivered of a male child, and when the child was not more than three weeks old, the defendant began to beat it and treat it with great barbarity; at one time pouring water over its face and continuing it until the infant’s cries were hushed by strangulation. That this conduct was frequently repeated; and particularly in the month of April, 1836, he had treated the child with great cruelty; and had beat with great violence and inhumanly treated the complainant, and used the most violent threats towards her, and soon after abandoned her, and went from Port Huron, in the county of St. Clair, (where he then resided,) to the city of Detroit, and had not since returned to her.
    The bill further set forth, that by reason of the shortness of her residence in the territory, she was unable to avail herself 0f the statutory provision enabling persons resident three years hr the territory, to procure divorces for the cause of cruel treatment, and that complainant had no means of support for herself and child, (who was., then aged six months,) nor for their clothing, or to pay counsel fees, and that the defendant adequate means for that purpose." That defendant- had been applied to on behalf of complainant^, to,,mskq some,p^p-vision or allowance for the -purposes aforesaid, .and .also ,for. .the education: of' the child; which -he- had-refused'to -do;
    The bill also set forth,’ th'at'défendánt had'd.e.clafe’dhís.'int¿,ption to leave this- country and go to Europe to reside, as soon as he could raise sufficient money to enable him to do so; and that he was then actually arranging his affairs for that purpose, and had threatened to take from her the child and carry it away with him. ,
    The bill prayed that defendant be restrained by injunction from molesting the retreat and invading the retirement and privacy of complainant, or in any way intermeddling with her, and that defendant might be restrained from taking away from complainant, the custody and care of the child, or interfering with her management of the same, and that sho might have the sole and absolute custody, care and management of the child; and that defendant be decreed to maintain and support complainant and the child, and to pay such allowance weekly, as should be found suitable and adequate for the maintenance and clothing of complainant, and also for the clothing, maintenance and education of the child, and that the regular payment thereof be secured; and for such reasonable sum to enable complainant to prosecute her suit as to the court should seem proper.
    It also prayed for a writ of ne-exeat, to restrain defendant from departing the territory, and for a subpoena, in the usual form.
    A writ of ne-exeat, directing security to be given in the sum of $5,000, and also the writ of injunction prayed, were allowed by the Hon. George Morel!, one of the justices of the .supreme court,
    
      The injunction and ne-exeat were served on the defendant June 6, 1838.
    At the same term, June 20, Woodbridge and Backus filed the following motion:
    Woodbridge and Backus move that the injunction in the premises issued, be dissolved, and that said writ be set aside; and-for reasons, show to the court here, the following, to wit:
    1. For that the same is irregular.
    2. For that the same is not sanctioned by any equity in the bill of complaint contained.
    3. For that no bill of complaint is regularly filed nor exhibited in the premises.
    4. For that the case made thereby is disproved by affidavits.
    5. For that the subject matter of said writ, is not an appropriate nor legal subject for a writ of injunction.
    6. For that the same issued without subpoena and improvidently.
    They also move that the no-exeat in said cause issued, be discharged, and the same writ be set aside,
    1. For that the same issued improvidently and irregularly.
    2. For that no definite sum of money is therein, nor in said bill, shown to be due, nor at hazard, either at law or in equity.
    3. For that this honorable court has not jurisdiction of matrimonial causes, except for the purpose of granting divorce; and said bill neither presenting a case nor containing a prayer for such divorce, though the same purports to be a matrimonial cause. The subject matter of said writ and the aid sought to be obtained thereby, are illegal and incompetent.
    4. For that said writ is not accompanied by a subpoena to answer.
    5. For that no bill of complaint., by a competent party, is regularly filed in the premises.
    6. For that the case presented therein is disproved by affidavit.
    They also move that the bill of complaint in the premises, exhibited and filed, be dismissed:
    
      i. For that the said bill is exhibited and filed by Emily Peltier alone; whereas it appears, by the showing thereof, that said Emily is a feme covert, and.in no wise competent in the law, to file said bill, except in the name of her pro chein ami.
    
    2. For that this honorable court has no jurisdiction of the subject matter of said bill, and that no subpoena ad respondendum has been served thereupon.
    At the same term, June 29, the supreme court granted an order, that the defendant forthwith pay into the hands of the register of the court, for the use of the complainant, the sum of .$40, in order to enable her to defray the expenses in the prosecution of this suit; and also that defendant pay every week, from that day, into the hands of the register of the court, for the use, support and maintenance of complainant, the sum of $4, until the further order of the court.
    A certified copy of said order, together with a subpoena to answer the bill of complainant, were served on defendant, July 27, 1836.
    On the organization of the state government, this cause among others, pending on the chancery side of the supreme court of the territory, was transferred to the court of chancery, established under the state government, and was continued by consent of parties until the February term of the court of chancery; when Woodbridge renewed the motion to dissolve the injunction and set aside the writ; and that the ne-exeat be discharged and the writ set aside; and that the bill be dismissed for irregularity and want of jurisdiction; and also moved that the order made June 29, 1836, be discharged, vacated and rescinded, on the ground that the same was made unadvisedly, improvidently and ex parte.
    
    At the same term, A. D. Frazer, solicitor for complainant, on filing the affidavit of John Winder, (who was on the 29th day of June, 1836, register of the supreme court of the territory, and now register of the court of chancery,) that the order made June 29, 1836, by the supreme court, had not been complied with; and that no money had been paid into his hands by defendant for the use of complainant, to defray the expenses of this suit or for alimony, moved that defendant be committed for a contempt of court for not complying with the order.
    Both motions came on- to be heard at the same time.
    The following brief, being the same that Woodbridge submitted when he appeared in the cause as amicus curice, to resist the motion on which the order of June 29, 1836, was granted, was used and submitted on the arguments of these motions, by
    Wm. Woodbridge, solicitor for defendant.
    Woodbridge, as amicus curice, moves to dissolve injunction, discharge ne exeat, and dismiss the bill for irregularity and want of jurisdiction, and resists the motion of complainant for the same reasons; and he insists that no bill and no parties are regularly here, and therefore it is not competent to make an allowance.
    
      First. It is not competent for a feme covert to file a bill in her own name. If the bill be against her husband, jshe must sueby her pro chein ami. This is a rule so perfectly established and so familiarly known, that no authority can be necessary to support it. If an application for a divorce can be sustained in the name of a married woman, (without a pro chein ami,) it is because of an express provision of the statute in that regard. This is not an application for a divorce. (See Wood vs. Wood, 2 Paige R., 457; Mitford, 153; Cooper, 28, 163; Clancy, on the rights of women, 358, 6; 2 Kent's Com., 137.)
    
      Second. It is irregular to cause any action upon a bill, even to issue injunction, unless simultaneously there be a subpoena to answer; and can such an order pass without an appearance? (See Parker vs. Williams, 4 Paige, 439; Attorney General vs. Nichol, 16 Ves., 338; Eden, 35; Fellows vs. Fellows, 4 Johns. Ch. R., 25; Eden, 38, 232.)
    
      Third. This Court has no jurisdiction of the subject matter of the bill. The essential scope of the bill is to obtain a supplicavit and alimony. Now, as to a supplicavit, a court of chancery cannot exercise jurisdiction of it; at least, unless that matter arise incidentally in the course of the exercise of another and a principal object of the suit, (Codd vs. Codd, 2 J. C. R., 141.)
    For the rest, the judicial officers of the law in the territory are abundantly competent, in the ordinary administration of the law, to funrish all the relief and protection necessary. (2 Har. Cha., 168; Codd vs. Codd, 2 J. C. R., 141; Head vs. Head, 3 Atk., 550.)
    Of alimony this Court can have no jurisdiction, except so far as incident to the power of granting a divorce. (Lewis vs. Lewis, 3 Johns. Ch, R., 519; Mix vs. Mix, 1 Johns. Ch. R., 108; 1 Fond., 96; Head vs. Head, 3 Atk., 547; 2 Chit. Pra., 434-5, 462-3; 1 Mad., 305-6-7—note.)
    Or, unless it be applied for upon the footing of an agreement of separation, and allowance of separate maintenance duly entered into; and even then it would be exceedingly doubtful, unless some third person had acquired an interest, or the agreement had been entered into with some third person. (Bullock vs. Menzies, 4 Ves., Jr., 799;) or whoi-e it is claimed to accrue from a trust fund which chancery only can touch: and, as a general rule, chancery has no jurisdiction in matrimonial cases. (Legard vs. Johnson, 3 Ves., Jr., 351.)
    Chancery has never established a separation, except in pursuance of a previous agreement, and with great reluctance even then. (1 Mad., 305-6-7;) Nor, of course, does it grant alimony, as a principal object of relief.
    
      Fourth. But if alimony were regularly claimed, as a measure of relief, purely incidental to some other principal prayer, still the party petitioning, for it, should apply in due form. How can the court regulate the amount! Suppose the defendant were insolvent! Suppose worth $50,000 per annum, would the rate of allowance be the same! If the application were secundum artem, the party would file a petition, give notice of it, and file also an “allegation of faculties.” This allegation of faculties, being answered by respondent under oath, would exhibit a true state of his funds and capacity to pay. Nor will counsel fees be allowed by the court where there is jurisdiction, except ex necessitate. (3 Johns. Cha., 519.)
    
    
      Fifth. The bill is not, in contemplation of law, sworn to at all. A wife cannot be allowed her oath against her husband, in any case, as a general rule, except where she swears articles of the peace against him, or where personal violence is committed upon her; and, therefore, neither injunction, ne-exeat, nor supplicavit, are regular. (2 War. Cha., 161; Sedgwick vs. Watkins, 1 Ves., Jr., 49.)
    But it is anticipated that the court will consider the motion to dissolve the injunction, discharge the ne-exeat, and dismiss the bill at the same time, and for the reasons on file; as the consideration of the whole matter involved in this motion, almost, is necessarily involved in the motion submitted by complainant. Writs of ne-exeat, effecting the rights of personal liberty, are never granted, except reluctantly. ( Woodward vs. Schatzell, 3 J. C. R., 412.) Never, except a specific sum appear manifestly due, and in imminent danger of loss unless it be allowed, and which courts of law are incompetent to save. (2 War. Cha., 161; 1 Ves., Jr., 49, 94; 2 Atk., 210.) Here no sum has been decreed, or sworn to. If there rest any liability on the part of the husband to pay for the support of the wife, it is a liability at law; let him be sued for it.
    The injunction is equally untenable. The bill is irregularly filed. It is as if there were no bill; for, (unless, perhaps, for divorce, and this is not,) the wife cannot file her bill without her pro chein ami, and the injunction must he dissolved, for there is no subpoena to answer. The subject matter and scope of the injunction is without precedent and illegal. The complainant meant to pray for and obtain a supplicavit, not an injunction.
    But it is by statute, that in England the chancellor exercises this power; and, I apprehend, never, even there, except in a matter incidental to the main object of the suit. Such an injunction interferes with the marital rights and duties of the husband in a way not to be tolerated. But if life were in danger, a justice of the peace would bind the party to his good behavior, leaving the wife, where the law leaves her, in the custody and under the protection of the husband.
    The bill should be dismissed, because the court has no jurisdiction of its subject matter.
    Alexander D. Frazer for complainant.
    The complainant contends that the general rule is, that the party must clear his contempt béfore he can be heard. (Vowles vs. Youngs, 9 Vesey, 173; Hewitt vs. McCurtney, 13 Id., 560; Anon., 15 Id., 174.)
    On a question whether the defendant could, before his contempt were cleared, though he offered to pay all the plaintiff's demand, ordered that he should bring before the master, principal, interest and cost, and then be at liberty to move to discharge sequestration. (Lord Wenman vs. Osbaldiston, 2 Brown p. c., 142.)
    Though an injunction be irregularly obtained, it must be obeyed or the party is in contempt. (Woodward vs. King, 2 Ch. Ca., 203, 127; Partington vs. Booth, 3 Mer., 148.)
    Alimony has been decreed to a wife without a divorce, where she was compelled to leave the husband from ill usage, although she had not been beat or turned away. (1 Equity Digest by Barbour and Harrington, 266; Rhume vs. Rhume, 1 McCord, Ch., 205; Thornberry vs. Thornberry, 2 J. J. Marshall, 324; Denton vs. Denton, 1 Johnson. C. R., 364; Hewitt vs. Hewitt, Blands. Ch. Rep., 101; Jelineau vs. Jelineau, 2 Desaus, 45;) and if there be no precedent, the court will make one. (Idem, 50; Devall vs. Devall, 4 Desaus, 79; Anon. Id. 94; Taylor vs. Taylor, Id., 167; Id., 183.)
    
    Court of chancery has jurisdiction in all cases of alimony, and defendant will be committed until he comply with the decree. (Purcell vs. Purcell, 4 Hen. and Munf., 507; Id. 515; Id. 517; Id., 520; Anon. 1 Hayne, 347.)
    Courts of chancery, in this country, have authority to decree alimony independent of any legislative enactment; temporary alimony, and money to carry on the suit, is a matter of course. (Fishli vs. Fishli, 2 Litt. 337; Butler vs. Butler, 
      4 Id., 202; Wright vs. Wright, 1 Edw., 62; Smith vs. Smith, Id. 255; Stanford vs. Stanford, Id., 317.)
    An injunction was appropriate to prevent intercourse or molestation on the part of the husband. (Warter vs. Yorke, 19 Vesey, 454.)
    It is competent for a feme covert to institute suit without a prochein ami; and. the affidavit of the wife may be received against the husband and will authorize the granting of an injunction and ne-exeat. (Kirby vs. Kirby, 1 Paige, 261; Pyle vs. Cravens, 4 Litt., 18.)
    Woodbridge in reply.
    It is now objected that the defendant is excluded from this motion because counsel say, “ he is in contempt for not obeying the order now sought to be set aside.”
    It is admitted that when a contempt is “fixed” upon one, he cannot, in general, move until the contempt “ is purged.”
    
      Bat even this rule applies rather to appeals to the “ discretion” — that is, to the favor of the court, and does not and cannot preclude the enforcement of mere right. (Johnson vs. Pinney, 1 Paige, 646; 7 Paine’s Rep., 58; 9 Whea., 868.) The nulity of an order, &c., may be always shown.
    But in this case, there is no contempt fixed. At the first practicable moment, the motion is made to set aside the order for irregularity, áre., and before any movement of complainant.
    But to this moment, nothing under that order, is done by complainant to bring us in contempt. An order or a decree, (and they both stand upon the same footing) to pay money, is to be enforced by “ execution,” and in that way only. (1 Har. Cha., 442 to 445; 2 Har. Cha. 141-2; New Pra. 194 — 5 ; “ orders on decrees,” Hind. Cha. 429; New Pra. 70-1.) And especially where the order is to pay money, the course is by execution. (2 Mad., new ed., 402-4; 8 Ves. 381; 2 Mad., old ed., 305.)
    And until complainant move, by execution upon the order against us, it cannot be enforced. In New York there is an express statutory provision for the enforcement of orders, &c., by serving copies, but we have no such statutory provision.
    
      Another matter is worthy of note; that is, that Winder’s affidavit was not filed until this term. And if our situation in this regard brings us within the rule alluded to, then any suggestion of contempt, without affidavit, will, at any time be found to be a sufficient apology for suppressing all claim of legal and constitutional right. But if the party were technically in contempt, still it is competent to set aside- the order which is rendered against him for irregularity, even; much more for nullity. (3 Bar. and Harr. Eg. Dig., 257; Green vs. Green, 2 Sim., 394; 2 Con. Cha., 540; 4 Con. Cha., 528; Jenkins vs. Wild, 2 Paige, 394.)
    And this doctrine is practically supported by the numerous New York cases. For in all them, perhaps — inmost of them certainly, laborious investigations are gone into to show the regularity of the proceedings, or the contrary; and all clearly supporting the proposition that where the irregularity is so glaring as to amount to nullity, this fact may be shown. (Higbie vs. Edgarton, 3 Paige, 253; Sanford vs. Brown, 4 Paige, R., 360; Sullivan vs. Judah, Id. 444; Osgood vs. Johnson, 3 Paige, R., 195; People vs. Spalding, 2 Paige, 329.) And these, apparently, contain the most unfavorable aspect, as against us, which the doctrine will bear. And the mere failure to comply with an interlocutory order, does not of itself place the party in contempt, nor preclude him from showing its irregularity. (Hill vs. Bissell, Mose. R., 259; 1 How. Pra. 369.)
    
   The Chancellor.

These are cross motions, and must necessarily both be considered at the same time.

When a defendant is in contempt, he cannot move to set aside proceedings; but when there is merely a failure on his part to comply with the requisitions of an interlocutory order, he may move to discharge the order for irregularity. (Hill vs. Bissell, Mose. R., 259.)

Here no contempt is fixed, and the defendant moves to set aside the order at the earliest opportunity. Orders of this kind are usually enforced by execution, and a mere failure to comply with the requisitions of such an order, is not such a contempt as will preclude the party from moving to discharge the order and set aside the proceedings for irregularity.

The proceedings in this case seem to have been irregular throughout. The bill was filed by a feme covert without pro chein ami, and was, therefore, improperly before the court. (Wood vs. Wood, 2 Paige R., 454; same case on appeal, 8 Wend., 357; Mitford, 153; Cooper, 163.)

The injunction and ne-exeat were issued May 31, 1836, returnable on the first Monday of June following, and were served June 6, 1836. The subpoena was not issued until the second day of July, 1836. This was clearly irregular. (Parker vs. Williams, 4 Paige R., 439; Attorney General vs. Nichol, 16 Ves., 338.)

The next question that arises, is, as to the jurisdiction of the court.

The bill in this case is filed, not for a divorce, but for alimony merely.

It appears from the authorities cited by the counsel for the complainant, that the courts of South Carolina have entertained bills of this kind; but they have usually been to carry into effect some marriage contract, or where a trust property was involved. I can find no other case where the jurisdiction has been sustained when the question has been raised. In the case of Hewitt vs. Hewitt, 1 Bland R., 101, the jurisdiction was not questioned, the facts were admitted, and the whole matter was submitted to the court. The cases referred to in the note to that case, are too indefinite to entitle them to any weight as .authority.

The whole current of authorities goes to show that courts of chancery have never entertained jurisdiction in cases of this kind, except in aid of some other court, or to carry into effect a marriage contract, or in the execution of a trust. (Peame vs. Lisle, Ambler R., 75; Perry vs. Perry, 2 Paige, 501.)

In England, when the court of chancery succeeded to the jurisdiction of the spiritual courts during the usurpation, it entertained suits of this kind, but not since the restoration. {See Head vs. Head, 3 Atk., 551; Watkyns vs. Watkyns, 2 Atk., 98; Fonb. Eq., 98, note n.)

In the case of Codd vs. Codd, 2 J. C. R., 141, the bill prayed for a writ of swpplicavit to protect the person of the petitioner, and her property and children from insult and injury, pending the suit, and chancellor Kent refused the writ, saying, “Why should not the party apply to a justice of the peace to bind the other to good behavior'?”

The cases cited in Desaussurd s equity reports of South Carolina, seem to be a departure from principle, and cannot, therefore, be regarded as authority in this case. If it is intended that courts of chancery should take jurisdiction of this class of cases, that jurisdiction must be given by law. I am satisfied that, exclusive of any statutory provision upon the subject, this court has no jurisdiction to entertain proceedings of this kind.

The orders must be discharged and the bill dismissed.  