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![handle is hein.slavery/ssactsengr0764 and id is 1 raw text is: to enquire : for if the husband is not at liberty to dispute its regularity, the question,
is immaterial; and that he is not so is plain, if, as is asserted on one side, the;
appearance was entered with the concurrence of his solicitor: but, however that may
be, I think it would be contrary to justice, if, after allowing the [785] subsequent.
proceedings to go ol with knowledge of such an objection as this, he were now to be.
permitted to avail himself of it. As I stated in Hunter v. Capron (7 Jur. 185),
justice requires that where an objection is not one of substance, but only of form, 1
party should be bound to bring it forward at once, as soon as he knows of it.
Without, therefore, deciding anything as to the regularity or irregularity of the
appearance which was entered for the wife, I think the husband is precluded from
disputing it, and on that ground I am of opinion that the Vice-Chancellor's order
ought to be discharged ; but as that consideration applies only to the husband, and
as the irregularity of the appearance, if it be irregular, would still be available to the
wife in another form of proceeding, I would suggest to Mr. Parker whether it would
not answer his client's purpose better to let the Vice-Chancellor's order stand, on
condition of the husband undertaking to enter an appearance for his wife-not, of
course, giving him the costs of the proceedings which have been actually taken.
Mr. Parker, after consulting with his client, said that he anticipated no difficulty
on the part of the wife, and, therefore, declined the offer.
The Vice-Chancellor's order was accordingly discharged.
Mr. James Parker and Mr. Elderton appeared for the Plaintiff.
Mr. Russell and Mr. Lewin, conre.
(1) It will be seen that it was not necessary in this case to decide upon the
validity of this objection; but the question arose incidentally a few days afterwards
upon an application in a supplemental suit between the same parties.
The Plaintiff had, under the 33d Order of May 1845, served Mr. Plomer in
Scotland, where he was then residing, with a subpoena for himself and his wife, to
appear to and answer the supplemental bill; and Mr. Plomer having, in obedience to
that subpama, entered an appearance for himself, but none for his wife, the Plaintiff
moved before Vice-Chancellor Knight Bruce, under the 4th rule of the same order,
for leave to enter an appearance for her, founding his motion on an affidavit of the
former service upon her husband. The Vice-Chancellor, having understood that some
doubt had been expressed by the Lord Chancellor in the case reported in the text,
whether, having regard to the objection above referred to, service on a husband would
warrant the entering of an appearance for the wife, either under the 29th or the
33d Orders, declined to make the order, and suggested that the application should be
made to the Lord Chancellor. That was accordingly done, and his Lordship, after
referring to the orders, granted the application on the ground that, where husband and
wife were sued together, it was the duty of the husband to enter an appearance for
his wife as well as for himself ; at the same time observing that the objection founded
upon the supposed necessity of personal service proceeded upon a misconstruction of
the 29th Order, as the requisition that the subl)ena should have been duly served
upon such Defendant personally, or at his dwelling-house or usual place of abode,
meant nothing more than that it should have been duly served, the two modes of
service mentioned being the only two in which ordinary service could be effected.
L. C. 26th February 1849.
[786] WARDE V. WARDE, and In the Matter of THE 2 & 3 VICT. c. 54.
Jan. 20, 1849.
[See In re Taylor, 1876, 4 Ch. D. 160.]
Where, upon an application by a wife, who had obtained a sentence of divorce against
her husband, for the custody of her children, the conduct of her husband appeared
to be such as clearly to render it improper that he should have the custody of the
eldest child, a girl of eleven years old, the Court made an order for the delivery of
all the children (two of whom were under seven years of age) to the mother,
holding it unnecessary to consider whether it would have made the same order
1147
2 PH. 785.
WARDE V. WARDE](ViewImageLocal?handle=hein.slavery/ssactsengr0764&div=1&collection=&method=preview&ext=.png&size=3)