Unknown County MI Archives Court.....Peltier, Vs Peltier 1837
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:20 am

Source: Cases In Chancery
Written: 1837

Emily Peltier v. Charles Peltier.

Equity practice: Contempt: Irregularity. A defendant in contempt cannot move 
to set aside proceedings; but where there is merely a failure on his part to 
comply with the provisions of an interlocutory order, he may move to discharge 
the order for irregularity.

Married woman: Prochien ami. A bill by a married woman against her husband 
must be filed by prochien ami. (a.)

Equity practice: Process. A subpoena is the first process. It is irregular to 
have injunction and ne exeat issued and served before the issue of subpoena.

Alimony: Jurisdiction.  A court of chancery has no jurisdiction of a case 
where the bill is filed for alimony merely. (b.)

The bill in this case was filed May 31, 1836, in the supreme court of the 
Territory of Michigan, in chancery sitting, and set forth that the complainant 
came into the Territory of Michigan in the year 1834, and had resided in said 
territory ever since; that in the month of January following, being then of 
the age of twenty years, she was married to the defendant, who was then twenty 
six years of age, or thereabouts; that soon after the marriage, and within one 
month, the defendant evinced angry feelings toward 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 
child, which the defendant also ill-treated; 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 toward 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 of the statutory provision 
enabling persons resident three years in 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 had adequate means for that 
purpose; that defendant had been applied to on behalf of complainant to make 
some provision 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 that defendant had declared his intention 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 she 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 Morell, 
one of the justices of the supreme court.

The injunction and ne exeat were served on the defendant June 6, 1836. 
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 or 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 ne 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:

1. 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 prochien 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 
complaint, 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.

Wm. Woodbridge, solicitor for defendant.

Woodbridge 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.

1. It is not competent for a feme covert to file a bill in her own name. If 
the bill be against her husband, she must sue by her prochien 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 prochien ami), it is because of an 
express provision of the statute in that regard. This is not an application 
for a divorce. See Wood v. Wood, 2 Paige, 457; Mitford, 153; Cooper, 28, 163;  
Clancy on the Rights of Married Women, 358; 2 Kent, 137.

2. 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 v. Williams, 4 Paige, 439; Attorney-
General v. Nichol, 16 Ves., 338; Eden, 35; Fellows v. Fellows, 4 Johns. Ch., 
25; Eden, 232.

3. 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 v. Codd, 2 Johns. Ch., 141.)

For the rest, the judicial officers of the law in the territory are abundantly 
competent, in the ordinary administration of the law, to furnish all the 
relief and protection necessary. (Codd v. Codd, 2 Johns. Ch., 141; Head v. 
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 v. Lewis, 3 Johns. Ch., 519; Mix v. 
Mix, 1 Johns. Ch., 108; 1 Fond., 96; Head v. Head, 3 Atk., 547; 2 Chit, Pra., 
434-5, 462-3; 1 Mad., 305-7, 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 v. Menzies, 4 Ves., 799); or where 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 v. Johnson, 3 Ves., 351.)

Chancery has never established a separation, except in pursuance of a previous 
agreement, and with great reluctance even then. (1 Mad., 305-7.) Nor, of 
course, does it grant alimony as a principal object of relief.

4. 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. (8 Johns, Ch., 519.)

5. 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. (Sedgwick v. Watkins, 1 Ves., 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 is almost necessarily involved in the motion submitted by 
complainant. Writs of ne exeat, affecting the rights of personal liberty, are 
never granted except reluctantly. (Woodward v. Schatzell, 3 Johns. Ch, 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., 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 prochien ami, and the injunction must be 
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 before he can be heard. (Vowles v. Youngs., 9 Ves., 173; Hewitt 
v. McCurtney, 13 Id., 560; Anon., 15 Id., 174.)

On a question whether the defendant could, before his contempt was 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 v. Osbaldiston, 2 Brown P. 
C., 142.)

Though an injunction be irregularly obtained, it must be obeyed or the party 
is in contempt. (Woodward v. King, 2 Ch. Ca., 203, 127; Partington v. Booth, 3 
Meriv., 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 (Rhame v. Rhame, 1 McCord Ch., 205; Thornberry v. Thornberry, 2 J. J. 
Marshall, 324; Denton v. Denton, 1 Johns. Ch., 364; Hewitt v. Hewitt, Bland 
Ch., 101; Jelineau v. Jelineau, 2 Dessaus., 45); and if there be no precedent 
the court will make one. (Devall v. Devall, 4 Dessaus., 79; Anon. Id., 94; 
Taylor v. Taylor, Id., 167; Id., 183.)

The court of chancery has jurisdiction in all cases of alimony, and defendant 
will be committed until he comply with the decree. (Purcell v. Purcell, 4 Hen. 
and Munf., 507; Id., 515; Id., 517; Id., 520; Anon., 1 Hayne, 347.)

Courts of chancery, in the United States, 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 v. Fishli, 2 Litt., 337; 
Butler v. Butler,
4 Id., 202; Wright v. Wright, 1 Edw., 62; Smith v. Smith, Id., 255; Stanford 
v. Stanford, Id., 317.)

An injunction was appropriate to prevent intercourse or molestation on the 
part of the husband. (Warter v. 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 v. Kirby, 1 
Paige, 261; Pyle v. Cravens, 4 Litt., 18.)

Woodbridge in reply.

It is admitted that when a contempt is "fixed" upon one, he cannot, in 
general, move until the contempt "is purged."

But 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 v. Pinney, 1 Paige, 646; 9 Wheat., 868.) The nullity of 
an order, etc., 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, etc., 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. 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, etc., 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. (Green v. Green, 2 Sim., 394; 
Jenkins v. Wild, 2 Paige, 394.)

And this doctrine is practically supported by the numerous New York cases. For 
in all of them, perhaps—in most 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 v. Edgarton, 
3 Paige, 253; Sanford v. Brown, 4 Paige, 360; Sullivan v. Judah, Id., 444; 
Osgood v. Johnson, 3 Paige, 195; People v. 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 v. 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 v. 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 prochein ami, and was, therefore, 
improperly before the court. (Wood v. Wood, 2 Paige, 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 
v. Williams, 4 Paige, 439; Attorney-General v. Nichol, 16 Ves., 338.)

The next question which 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 v. 
Hewitt, 1 Bland, 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. (Pearne v. Lisle, Ambler, 75; Perry v. 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 v. Head, 3 Atk., 551; Watkyns v. Watkyns, 
2 Atk., 98; Fonb. Eq., 98, note n.)

In the case of Codd v. Codd, 2 Johns. Ch., 141, the bill prayed
for a writ of supplicavit 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 Dessaussure'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.

-------------------
(a.)—As to mode of appointment, see Markham v. Markham, 4 Mich., 305. The 
necessity for the appointment is now dispensed with by statute. (Comp. L. 
1857, Secs. 3290, 3294.

(b.)—As to granting alimony in divorce cases where the divorce is denied, see 
Chaffee v. Chaffee, 15 Mich., 184; Cooper v. Cooper, 17 Mich., 205; Bishop v. 
Bishop, 17 Mich., 211.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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