Hope v Hope

JurisdictionEngland & Wales
Judgment Date27 February 1857
Date27 February 1857
CourtHigh Court of Chancery

English Reports Citation: 43 E.R. 534

BEFORE THE LORD CHANCELLOR LORD CRANWORTH.

Hope
and
Hope

S. C. 23 L. J. Ch. 682; 2 W. R. 698; 19 Beav. 237. See Drummmul v. Dnmmond, 1866, L. R. 2 Ch. 39; Brown v. Collins, 1883, 25 Ch. D. 62; In re Willoughby, 1885, 30 Ch. D. 327. Cf. Wilding v. Bean [1891], 1 Q. B. 100.

[328] hope v. hope. Before the Lord Chancellor Lord Cranworth. f 6 P 5^-4- ^ay 2^' ^wne 3| 5) ^' -d*1!?11^ 5 1854. ^f5t rS. C. 23 L. J. Ch. 682; 2 W. R. 698; 19 Beav. 237. See Drummmul v. Dnmmond, 1866, L. R. 2 Ch. 39; ^raw v. Collins, 1883, 25 Ch. D. 62 ; In re Willoughby, 1885, 30 Ch. D. 327. Cf. Wikling v. Bean [1891], 1 Q. B. 100.] The principle on which substituted service is ordered is that there is reasonable ground to suppose that the service will come to the knowledge of the Defendant. The Court of Chancery has jurisdiction over the custody of the children of an English subject, though such children were born and are resident abroad. A married woman, residing in France, on whom service had been substituted, having entrusted to her by the French Court the interim custody of her children until the result of certain proceedings instituted by her in this country for a divorce was ascertained, ordered by the Lord Chancellor to concur with her husband in taking all necessary steps for the purpose of delivering up the children to him, with the view to their being brought over to and educated in England. She appealed from the Lord Chancellor's order, and successfully resisted her husband's application in the French Court for the delivery of the children, on the ground of the pendency of the appeal. On the matter being again brought before the Lord Chancellor, he made another order upon the wife in the same terms, but requiring compliance within a week, and prefaced with a declaration that, by the law of England, an appeal from an order pronounced by the Lord Chancellor does not suspend its operation. This case came on to be heard by the Lord Chancellor as an original motion, at the request of the Master of the Rolls, before whom it had been in part opened. The following are the circumstances out of which the questions arose:-In the year 1836 the Defendant Adrian John Hope, a domiciled Englishman, intermarried with Emilie Melanie Mathilde Rapp, the daughter of a French officer. They lived together until February 1853, when unhappy differences arose. There were five children of the marriage; the three elder were daughters and the two younger were sons, Adrian Elias and Jean Henry, who were born in France in 1845 and 1847 respectively. In February 1853, Mr. A. J. Hope, who had been up to that time nearly ten years resident in France, came to London, bringing with him his three daughters for education. In May 1853, the two male children were also brought to England by Mr. A. J. Hope, and placed under the protectiou of their paternal uncle, Mr. A. B. Hope. Immediately after their arrival in this country representations were made to Mr. A. J. Hope, by the physicians of Mrs. Hope, that she was suffering under [329] a severe illness which was caused by the removal of her sons; Mr. A. J. Hope, having regard to such representations, was prevailed upon conditionally to restore them to her custody in Paris. Upon this occasion Mrs. Hope signed the following undertaking:- 4 DE 0. M. ft 0.130, HOPE V. HOPE 535 " 23 Quad d'Orsay, Paris, May 18th, 1853.-I, the undersigned, undertake to place in the hands of their father my two boys, Elias and Jean Hope, in three months, to date from the 20th May, that is to say, the 20th August, that their father afford them such education as he may deem advisable, either with him or with a preceptor in France or in England.-M. hope rapp." On the 26th May 1853, Mr. A. J. Hope returned to England, and on the 4th June following he was served with a citation to appear before the tribunal of the first instance in Paris on a suit of separation instituted by his wife. The citation, after alleging various acts of cruelty on the part of Mr. A. J. Hope, prayed for a separation from her husband, with a separate maintenance, authority to reside in the house of the Quai d'Orsay, and the right to retain in her custody the two sons. The question raised upon that citation came on to be heard on the 9th June 1853, when Mr. A. J. Hope having appeared, the following judgment was pronounced:- " Whereas there is a question of separation of body between two aliens, and that we can decree only upon measures provisional, urgent and conservative : in consideration of the circumstances we have addressed observations to the parties to attempt a reconciliation, and Mrs. Hope having persisted in her demand, we declare ourselves incompetent-et renvoyons les parties a se pourvoir sur la demande en separation devant les juges qui peuvent en connaltre. With regard to the measures, provisional and urgent-Concerning the residence of Mrs. Hope, we give force to the arrangement [330] of the parties that, on the demand and designation of Mr. Hope, Mrs. Hope consents to retire to the Convent of the ' Dames Augustines.' Concerning the children-whereas Mr. Hope has with him three children born of the marriage, and that in a recent reconciliation it was agreed between the husband and wife that the two children claimed should remain with Mrs. Hope for several months, that to deprive her of all her children would be a source of irritation, which might be injurious to the prospect of a reconciliation ulterior and desirable-we say that the two children shall remain with Mrs. Hope at the Convent of the 'Dames Augustines,' and that Mr. Hope shall have power to see them at all times that he shall judge fit, without removing them, and in conformity to the rules of the house." On the 22d June, Mrs. Hope obtained a further order from the same Court, by which she was permitted, for the benefit of her health, to remove, with the two boys, from the convent to a watering-place in the Pyrenees. Mr. Hope appealed from these decisions, and on the 29th June judgment was given by the Imperial Court to the following effect:-" Considering that the Hopes, husband and wife, being aliens, foreign tribunals alone are competent to pronounce in disputes, the object of which is to modify the legal conditions of marriage; but considering that it is competent to the French tribunals, when a demand of separation of body is made by a foreign woman, to provide for her wants and her safety ; that it is equally competent to them to take those measures which the age and health of the children born of the marriage conditionally require, and adopting the grounds of the decision of the Court of the first instance-Confirme et neanmoins ordontie que les deux enfans provisoirement confies a la garde de la femme Hope aeront remis a leur pere le 15 Septembre 1853, s'il n'en a ete autrement [331] ordonne par les Tribunaux Anglais, juges du fond: condamne Hope en 1'amende et aux depens. Mrs. Hope then commenced a suit in England, in the Court of Arches, for a divorce, which ia still pending; and on the 5th October 1853, applied to the Imperial Court in Franca for an extension of the time during which the children were to remain in her custody, and for permission to change her residence, when a decree was made to the following effect:-"Considering that there is a question only before the Court of measures provisional, pour lesquellea on ne peut opposer 1'autorite de la chose jugee; considering, chiefly, that the time during which Mrs. Hope was authorized by the previous decisions to keep her two children was limited by the Court to the 15th September only in order to compel her to begin and follow up before the competent tribunal the demand of separation of body, and in expectation of the decision of the rightful Judges-des juges du fond-upon this point at that time ; but it appears, from the documents produced, that the suit is followed up by Mrs. Hope in England, that a decision on the provisional measures can be obtained in four months, commencing from this day, and that it is for the interest of the 536 HOPE V. HOPE 4 DB G. M. fc 0. 332. children that they should remain under the guardianship of their mother during theae four months at least, unless it has been otherwise decreed by the rightful Judges-juges du fond-before the expiration of this time; and whereas it is convenient to fix the residence of Mrs. Hope in another place than the Convent of the ' Dames Augustines,' the Court decrees that the two children shall remain in charge of their mother for four months, to commence from this day, on an undertaking on her part to allow them to be visited by their father three times a week, between the hours of three and five in the afternoon, and the Court authorizes Mrs. Hope to make them reside with her [332] at the Hotel Mole, Rue du Faubourg, Saint Honore." By a subsequent decree of llth February 1854, the French Court being satisfied that Mrs. Hope was prosecuting the English suit with diligence, prolonged her custody of the children "jusqu'& ce que la jurisdiction competente ait statue sur cette question," and they accordingly remained with her up to the time of the present application. Mr. Hope having previously settled £1000 consols upon his children, in order to obviate all technical objections as to their right to be considered wards of this Court, this bill was filed on the 14th November 1853 by the five children, by Francis Henry Diekenson, their next friend, against Mr. and Mrs. Hope and the trustees of the settlement, and prayed the execution of the trusts of the settlement; that Mrs. Hope might be ordered to deliver up the two children, Adrian Elias and Jean Henry, to their father; that they might be educated in England under the direction of their father, or of such other person as the Court might direct; and that Mr. Hope might be authorized to make the necessary application to the French Court to obtain possession of the children. Mrs. Hope...

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